[00:00:07] Speaker 05:
Before we begin this morning, Judge Chin has a motion.

[00:00:11] Speaker 04:
Yes, thank you, Judge Dyke.

[00:00:14] Speaker 04:
I do have a motion today.

[00:00:16] Speaker 04:
I'd like to move the admission of Fan Zhang, who is a member of the Bar and is in good standing with the highest court of California.

[00:00:26] Speaker 04:
I have knowledge of her credentials, and I'm satisfied she possesses the necessary qualifications.

[00:00:32] Speaker 04:
I know these things because Ms.

[00:00:35] Speaker 04:
Zhang has been one of my clerks for the past year.

[00:00:38] Speaker 04:
A year ago, Ms.

[00:00:41] Speaker 04:
Zhang had a big challenge on her hands because she was replacing a star clerk, and I was concerned what that was going to mean for me.

[00:00:51] Speaker 04:
But Ms.

[00:00:52] Speaker 04:
Zhang, she reminds me of an attribute that

[00:00:57] Speaker 04:
The late John Wooden said is the most important attribute of any of his basketball players, and that's competitive greatness.

[00:01:03] Speaker 04:
Be at your best when your best is needed.

[00:01:06] Speaker 04:
And Ms.

[00:01:06] Speaker 04:
Zhang has been at her best for a whole year and has been an outstanding service to the court.

[00:01:15] Speaker 04:
She's a strong analytical thinker.

[00:01:19] Speaker 04:
Her writing is always clear and well-written, her work product.

[00:01:25] Speaker 04:
She knows right from wrong.

[00:01:28] Speaker 04:
She has excellent judgment.

[00:01:31] Speaker 04:
She knows how to keep closely guarded information secret, as apparently so do all of her co-clerks.

[00:01:40] Speaker 04:
And that can be a very positive attribute, I think.

[00:01:47] Speaker 04:
I think she would be a terrific member of our bar.

[00:01:49] Speaker 04:
And so I respectfully request that this motion be granted.

[00:01:57] Speaker 05:
Your motion is granted, Judge Chen and Ms.

[00:01:59] Speaker 05:
Zhang.

[00:02:00] Speaker 05:
Welcome to the bar on this court.

[00:02:02] Speaker 05:
And based on Judge Chen's representations, you should prosper and do well here.

[00:02:11] Speaker 05:
Thank you.

[00:02:14] Speaker 05:
Okay, now we have three argued cases this morning the first one is number 18 22 82 longer had tools LLC versus Sears holding corporation Mr.. Skirmark

[00:02:46] Speaker 00:
Thank you, Your Honor.

[00:02:47] Speaker 00:
May it please the court.

[00:02:50] Speaker 00:
The new trial order that issued below and its post-verdict change to the claim construction of armed portion should be reversed, and the jury's verdict of willful infringement should be reinstated.

[00:03:04] Speaker 00:
Apex argued or noted that the quote, unique procedural posture, close quote, of this case does not matter.

[00:03:12] Speaker 00:
The only issue is whether the claim construction is correct.

[00:03:16] Speaker 00:
But that is not entirely accurate.

[00:03:19] Speaker 00:
It is a long-standing canon of this court that claims should not be construed in a results-oriented fashion, including without tailoring the construction to the accused device.

[00:03:30] Speaker 00:
And there is no question that canon of construction was violated in the new trial order.

[00:03:34] Speaker 00:
And there is no question that the late Judge Dara, when he evaluated the exact same issue with the exact same arguments with respect to the prosecution history

[00:03:46] Speaker 00:
the construction of arm portion and who did not violate the canon against results oriented constructions found that loggerhead did not clearly and unmistakably surrender the very claim coverage that the new trial order found to be clearly surrendered post verdict are you suggesting that any time a district court judge makes a reference to

[00:04:11] Speaker 04:
the accused product in construing the claims that that is a reversible error.

[00:04:20] Speaker 04:
No, I'm not.

[00:04:21] Speaker 04:
I'm trying to understand what if we conclude that the district court, based on all the intrinsic evidence, got the claim construction right.

[00:04:31] Speaker 04:
I'm talking about Judge Palmeyer here.

[00:04:34] Speaker 04:
And so even though she may have made another observation about

[00:04:38] Speaker 04:
The peculiarity of the prior construction in the context of the accused product, it's not clear to me why there would be any reversible error with her correct claim construction based on the intrinsic evidence.

[00:04:53] Speaker 00:
I agree with you, Your Honor, that if her claim construction is correct based on the intrinsic evidence, the fact that she violated that canon of construction along the way would probably be beside the point.

[00:05:05] Speaker 00:
But I began with that because I think it

[00:05:09] Speaker 00:
starting from where Judge Palmeier started, which was to find that Judge Dara's claim construction was unworkable because it purportedly resulted in a finding that the max axis locking wrench has an infringing arm portion.

[00:05:27] Speaker 00:
And she found that testimony, that expert opinion to be arbitrary.

[00:05:35] Speaker 00:
Starting from that mistake, the mistake that

[00:05:39] Speaker 00:
the loggerhead expert identified an arm portion configured to engage the guide, and that identification was arbitrary, led to the search for a dictionary or some plain meeting that then compounded the errors and resulted in a misreading of the prosecution history and an over-reliance on a dictionary definition of the word arm.

[00:06:02] Speaker 00:
when the term for construction is the phrase arm portion.

[00:06:07] Speaker 00:
And prioritizing that dictionary definition over important intrinsic evidence, like the comparison of the asserted claims arm portion and other claims in both patents that shed more light on what the applicants and patentee was claiming with respect to arm portion, led her to make those errors as well.

[00:06:31] Speaker 00:
The dictionary definition of arm that she used does not define arm portion.

[00:06:38] Speaker 00:
And it says it's an identifiable appendage that is attached, not that projects from, is attached to an access point or a body portion.

[00:06:50] Speaker 00:
But there are claims in both patents that go to both of those claim construction issues that she raised.

[00:06:56] Speaker 00:
In the 579 patent, there is a claim five that is identical in all respects to the asserted independent claim at trial, except it then adds a limitation that says that the arm portion

[00:07:10] Speaker 00:
further includes a pair of arms disposed on opposite sides of the body portion such that the gripping element is substantially U-shaped.

[00:07:23] Speaker 00:
The claim that was found to be infringed by the jury does not say that the arm portion further includes a pair of arms.

[00:07:31] Speaker 00:
That claim term does not claim arms.

[00:07:34] Speaker 00:
It claims an arm portion.

[00:07:35] Speaker 00:
Further, claim 29, I believe it is, in the 470 patent, in the child patent that was asserted at trial, that claim defines an extension to a body portion that projects from the body portion to form a second body portion, where then there are two different body portions that can engage different aspects of the workpiece.

[00:08:04] Speaker 00:
That language projects from is nowhere in the asserted claim, is nowhere in the prosecution history.

[00:08:12] Speaker 00:
And it's used only, coincidentally enough, or interestingly enough, the project from language that actually exists in an unasserted claim is to define a second body portion.

[00:08:25] Speaker 00:
The projecting from in that loggerhead claim does not even define an arm or an arm portion.

[00:08:31] Speaker 00:
So you have clear claim differentiation issues that show, and Judge Palmeyer, and starting with a dictionary definition of arm, when arm is not a claim term, arm portion is,

[00:08:44] Speaker 00:
All of that led to her error from thinking that she had to put more certainty, essentially, that she felt that the expert identifying the max-axis locking wrenches arm portion of the gripping element that is configured to engage the guide, she thought that was arbitrary, so she went searching to put more meaning into the claim, and that is what led her to error.

[00:09:10] Speaker 00:
I agree with you, Your Honor, that there are a number of Federal Circuit cases that say it is not to know what the accused device is or even sometimes to know what terms should be construed.

[00:09:22] Speaker 00:
You need to know what the accused device is and what the arguments are going to be.

[00:09:26] Speaker 00:
And so it is not that the accused device is irrelevant or there needs to be a cloak put over it during the Markman process.

[00:09:33] Speaker 00:
But there are a dozen federal circuit cases that cite that canon of construction, and Lauderhead submits that the error in Judge Palmeyer's post-verdict change to the claim construction all resulted from her initial instinct that because the max axis locking wrench was found to have the claimed arm portion, the construction must be wrong.

[00:09:57] Speaker 00:
The construction provided to the jury in the jury instructions was correct because it is based on the language of the claims themselves.

[00:10:05] Speaker 00:
This is not a construction where Judge Darrow went off on some ledge to divine some definition of arm portion.

[00:10:14] Speaker 03:
Would you agree or disagree with the statement that the original construction was essentially functional only?

[00:10:28] Speaker 00:
No, I would not agree with that because for the same reason the claim is not functional only.

[00:10:33] Speaker 00:
The construction used the surrounding language of the claim to define arm portion.

[00:10:39] Speaker 00:
The claim itself says the arm portion is configured to engage the at least said one guide and is contiguous with the force transfer element.

[00:10:48] Speaker 00:
That's what the claim says.

[00:10:50] Speaker 00:
And those are the words that Judge Dara used to construe arm portion.

[00:10:54] Speaker 00:
And those are terms of structure, not only function.

[00:10:59] Speaker 03:
But the claim construction we're talking about is of the phrase arm portion before one gets to the additional claim language.

[00:11:12] Speaker 03:
What structure is being attributed to arm portion

[00:11:18] Speaker 00:
The structure of arm portion that is being imparted from the original construction is that the arm portion must be structured to fit the guides that are in the first element.

[00:11:38] Speaker 00:
There's a first element and a second element.

[00:11:40] Speaker 00:
The arm portion structure must have a force transfer element that is contiguous to it, and it must be structured to fit the guides in which it rides when the two elements are clasped together to bring the gripping elements from the outer into the middle.

[00:12:01] Speaker 04:
I guess I have the same question as Judge Toronto.

[00:12:04] Speaker 04:
I'm trying to understand how you understand what arm portion means.

[00:12:09] Speaker 04:
as a matter of structure.

[00:12:11] Speaker 04:
Is it fair to say that you think it means any portion of the gripping element that engages one set, at least one guide and a fourth transfer element?

[00:12:26] Speaker 00:
Yeah, it is the portion of the gripping element that is structured to engage the guide.

[00:12:33] Speaker 04:
Why wouldn't Buchanan meet that limitation?

[00:12:37] Speaker 00:
Buchanan doesn't have the claim second element with an actuation portion, which is what the applicants argued.

[00:12:45] Speaker 04:
So are you saying that Buchanan's gripping element has a portion that's configured to engage

[00:12:55] Speaker 04:
One said at least one guide and a forced transfer element?

[00:13:00] Speaker 04:
Well, when Apex's technical expert... I just need a yes or no answer to that question.

[00:13:07] Speaker 00:
Yes.

[00:13:08] Speaker 00:
We did not contend at trial that Buchanan lacked an arm portion.

[00:13:13] Speaker 00:
We contended at trial that Buchanan did not have the claimed second element with an actuation portion, which is the same argument the applicants made the first time.

[00:13:23] Speaker 04:
During prosecution of this patent, though,

[00:13:25] Speaker 04:
During prosecution, the first time Buchanan was... The applicant said, you know, in response to both times the Buchanan rejection was raised, that Buchanan lacks the Buchanan portion and that there's no structure that can be in our portion.

[00:13:43] Speaker 04:
So that makes me think that, well,

[00:13:49] Speaker 04:
The way you want this claim term to be understood now goes against what you argued against Buchanan during the original prosecution.

[00:14:02] Speaker 00:
I strongly disagree with that, Your Honor.

[00:14:03] Speaker 00:
In the original prosecution when Buchanan was raised in 2008, the applicant argued that Buchanan does not show the elements united in the same way as the claims, that Buchanan does not teach or disclose the second element as claimed, and argued the examiner failed to specify where Buchanan teaches an armed portion as claimed.

[00:14:25] Speaker 04:
When the examiner came back and pointed to

[00:14:29] Speaker 04:
an arm portion in Buchanan and then said parentheses adjacent to crimping element 25, that's when your side came back and said, no, no structure is adjacent to the crimping portion 25 in Buchanan.

[00:14:44] Speaker 04:
So that, I mean, the only logical read of that is you're saying that there is no structure that can be attributed in Buchanan's plunger to be an arm portion.

[00:15:00] Speaker 04:
And so, assuming for the moment that that's the way I read your prosecution, then to me that indicates that there has to be a structure that is separate from the body portion structure that represents the arm portion.

[00:15:21] Speaker 04:
And that's how you overcame the Buchanan rejection in the first instance.

[00:15:26] Speaker 00:
That is not how they overcame Buchanan in the first instance.

[00:15:29] Speaker 00:
What if I read it that way?

[00:15:31] Speaker 00:
If you read it the way that the applicant... That I said it.

[00:15:35] Speaker 00:
Well, in the second time when the examiner said adjacent 25, the same problem was present, which is that the examiner had identified the entire plunger of Buchanan 24 as the body portion.

[00:15:48] Speaker 04:
And when the applicant said there was no structure adjacent 25... What if I read the examiner's rejection as saying, no, it's the area of the plunger that's adjacent to the crimping portion 25 that represents

[00:16:01] Speaker 04:
in the examiner's view of the arm portion of the plunger.

[00:16:05] Speaker 00:
That still does not get around the fact that the examiner identified plunger 24 as the body portion.

[00:16:13] Speaker 00:
And so when the applicant answered the adjacent 25 identification, in context it is very clear on that same page it says the examiner has only identified a gripping element, a body portion, and a force transfer element, and no other structure.

[00:16:32] Speaker 00:
And in the applicant's claim, by contrast, there is an arm portion, a body portion, a force transfer element, and a gripping element.

[00:16:39] Speaker 00:
And so the statement that adjacent 25, there is no structure, flowed from the examiner's mislabeling of plunger 24 as the body portion.

[00:16:52] Speaker 00:
Because based on the logic of the claims, if that entire gripping element is

[00:16:57] Speaker 00:
the body portion, then it is not the claimed gripping element.

[00:17:01] Speaker 00:
Can't be.

[00:17:02] Speaker 00:
And that is exactly what Logger had explained after they said there is no structure adjacent 25.

[00:17:13] Speaker 00:
query whether I think the fairest read of the prosecution history is that the examiner realized he'd made a mistake when he issued the Buchanan rejection the second time because the applicant had already argued that Buchanan doesn't that the examiner hadn't identified the arm portion and that Buchanan doesn't have the second element as claimed and the examiner withdrew the Buchanan rejections that I've considered your arguments and they're persuasive.

[00:17:39] Speaker 00:
Later, three years later, he issues another Buchanan rejection.

[00:17:44] Speaker 00:
The applicant's lead argument is, hey, we've already been down this road and you withdrew this rejection.

[00:17:49] Speaker 00:
We incorporate our prior arguments by reference.

[00:17:52] Speaker 05:
Thank you.

[00:17:52] Speaker 05:
Thank you.

[00:17:54] Speaker 05:
I'll give you a minute to revolve.

[00:17:56] Speaker 01:
Appreciate it.

[00:18:02] Speaker 01:
Mr. Cernan.

[00:18:04] Speaker 01:
May it please the court, Mark Cernel, on behalf of Apex Tool Group.

[00:18:08] Speaker 01:
This appeal turns on the claim construction of a single term, the armed portion limitation of the claim gripping element.

[00:18:16] Speaker 01:
And all of the intrinsic and extrinsic evidence supports the ultimate construction of the court by Judge Palmeyer and rejects any consideration of loggerheads and the prior construction by Judge Dara.

[00:18:27] Speaker 01:
loggerhead is advocating here for a construction that is literally inconsistent with every tier of the hierarchy of intrinsic evidence, claims, specification, prosecution history, and effectively seeks to read out the term arm portion from the claims.

[00:18:44] Speaker 01:
And that's what happened and that's what led to the jury trial result that we had.

[00:18:48] Speaker 01:
The ultimate construction, identifiable structure that projects from the body portion of the gripping element is a very plain-meaning construction that gives some meaning, some structural meaning to arm portion, which a construction has to give it.

[00:19:03] Speaker 01:
when we look at, again, the claims, the specification, and the file history.

[00:19:07] Speaker 01:
Let's start with the claims.

[00:19:09] Speaker 01:
We have a gripping element that is not simply a gripping element with various functions.

[00:19:14] Speaker 01:
It's a gripping element with multiple portions, body portion, arm portion, force transfer element, and then functions associated with each of those portions.

[00:19:23] Speaker 01:
And so we need to have the function of

[00:19:26] Speaker 01:
the armed portion, which is configured to engage at least one of the guides, associated with this particular portion.

[00:19:33] Speaker 01:
I will also point out that the language used is not simply a label such as a first portion, a second portion.

[00:19:40] Speaker 01:
Other parts of the claim actually have first element, second element.

[00:19:43] Speaker 01:
Here we have actual words used like arm and body that connote particular structure for those portions.

[00:19:51] Speaker 03:
What structure does it connote?

[00:19:53] Speaker 01:
Again, a projection from the body portion.

[00:20:00] Speaker 03:
Why doesn't a monolith, like what we're talking about here, include a projection from the end of the monolith?

[00:20:08] Speaker 01:
First of all, a person with ordinary skill on the yard would not, in the mechanical context, look at a monolithic block

[00:20:14] Speaker 01:
and see something that they would refer to as an arm portion.

[00:20:17] Speaker 01:
There's nothing projecting from, there's no separately identifiable structure that we can say, okay, this is the body, and then here's the separately identifiable structure that is the arm.

[00:20:27] Speaker 03:
Why is it not separately identifiable?

[00:20:30] Speaker 03:
It's the stuff above the end.

[00:20:33] Speaker 01:
So there's multiple reasons.

[00:20:35] Speaker 01:
One, again, I think the natural reading of this, you have a body and then you're going to have some projection.

[00:20:40] Speaker 03:
Just remind me, it was separately identifiable in the claim constructions?

[00:20:44] Speaker 01:
Yes.

[00:20:44] Speaker 01:
Identifiable structure that projects from the body portion.

[00:20:47] Speaker 03:
Why isn't it separately identifiable?

[00:20:49] Speaker 03:
You knew exactly what I was talking about when I said the part that sticks up from the end.

[00:20:55] Speaker 01:
Well, we know that's not correct, if I can pivot to the specification and the file history, because we have

[00:21:02] Speaker 03:
embodiments in the specification that are this monolith, you know, this block, where they are not... Before we get to those parts, which I tend to agree is rather strong for you, one of the dictionary definitions that was asserted is that the body portion has to be the main portion.

[00:21:24] Speaker 01:
Yeah, and so I would say for a gripping element, the main portion is the portion that does the gripping.

[00:21:30] Speaker 01:
And in fact, that's the way the claim reads, the body portion adapted for engaging the workpiece.

[00:21:35] Speaker 01:
So that is the portion that's doing the gripping.

[00:21:37] Speaker 03:
That's not a matter, I would think just kind of outside mechanical tool land, that body and arm means the body is in some way larger than the arm.

[00:21:49] Speaker 01:
It could be.

[00:21:50] Speaker 01:
I mean, it's the mass that's doing the gripping here.

[00:21:53] Speaker 03:
Well, but that's a functional point about Mane.

[00:21:55] Speaker 03:
And I guess I was curious, so if you look at the, like 55 on your brief, the little group of red and green structures, and if I look at the second one, which is essentially a V, it sure looks to me there like the

[00:22:13] Speaker 03:
body portion is not even close to the main portion.

[00:22:18] Speaker 03:
It looks like a nutcracker, right?

[00:22:21] Speaker 01:
Yeah, again, I would suggest that a person of ordinary skill in the art looking at main portion, body portion in this context where we're talking about a gripping element, it's the mass doing the gripping.

[00:22:32] Speaker 01:
It's the part doing the gripping.

[00:22:33] Speaker 03:
So body portion has a functional definition, but you think arm portion can't have a function.

[00:22:39] Speaker 01:
I would suggest that body has some structure to it as well.

[00:22:43] Speaker 01:
Again, it's the main mass that's doing the work of the gripping element.

[00:22:46] Speaker 01:
But then we have to have something separately identifiable.

[00:22:49] Speaker 01:
We can't simply have a monolith and then hypothetically draw imaginary lines to find by function and find arm portions in there.

[00:22:58] Speaker 01:
And again, we know that because we look at the specification where all of the embodiments that have this projection from the gripping part, the body part,

[00:23:08] Speaker 01:
all are described as having arm portions.

[00:23:11] Speaker 01:
We then have one embodiment, figures 10 through 12, where it's this, what you're describing, this monolith.

[00:23:18] Speaker 01:
It's actually got a tapered end, but it's just a monolith.

[00:23:21] Speaker 01:
And that one is described as having the force transfer element through the body portion, has no arm portion.

[00:23:27] Speaker 01:
And so we know that based on when we look at the embodiments and the specification, there is no arm portion when we simply have a monolith as you're describing.

[00:23:39] Speaker 01:
I would also point out that just basic federal circuit precedent in terms of looking at claim language and giving meaning to words and claims tells us that our portion has to be given some meaning.

[00:23:51] Speaker 01:
What Judge Dara and what Loggerhead's suggesting here is simply erase it from the claim.

[00:23:56] Speaker 01:
Their construction simply incorporates other words already in the claim.

[00:24:01] Speaker 01:
and erases the concept of arm from the arm portion limitation.

[00:24:05] Speaker 01:
I would refer you to the Apple versus Motorola case, the angle industries case that talks about when you have multiple portions, they cannot logically be one in the same.

[00:24:14] Speaker 04:
Well, you know, you could have a block with a distal portion and a proximal portion, right?

[00:24:21] Speaker 04:
I mean nobody would

[00:24:22] Speaker 04:
have a dispute that some monolithic block can't have a distal portion and a proximal portion.

[00:24:29] Speaker 01:
You certainly can.

[00:24:31] Speaker 04:
Maybe if you describe something as a biasing portion and then

[00:24:36] Speaker 04:
you know, in the context of the patent, you could see, oh, this is the left-hand side of the block.

[00:24:42] Speaker 04:
That's what they refer to as the biasing portion.

[00:24:45] Speaker 04:
You would understand that even though it's not separately identifiable, per se, when you just look at the block from five feet away, there is a distal portion, proximal portion, biasing portion.

[00:24:58] Speaker 01:
I would agree that if there were different labels applied to portions there might be a top portion and a bottom portion and we know that the bottom portion does the gripping and that's described in the specification.

[00:25:06] Speaker 01:
I agree with you that there would be different circumstances in which if we had multiple portions described in the way you did

[00:25:13] Speaker 01:
a person's skill in the art might be able to identify them.

[00:25:16] Speaker 01:
But here, what we have is body portion and arm portion.

[00:25:19] Speaker 01:
We have a monolithic block.

[00:25:21] Speaker 01:
And we know that a monolithic block can't possibly have an arm portion.

[00:25:25] Speaker 01:
Again, the specification tells us that, but also the file history.

[00:25:29] Speaker 01:
And Judge Chen, you talked about it.

[00:25:30] Speaker 03:
Just remind me, what exactly in the spec are you referring to?

[00:25:33] Speaker 01:
Again, the figures 10 through 12 that Lager had acknowledged

[00:25:40] Speaker 01:
during the briefing and that it figures 10 through 12 they say don't have a force transfer element through the armed portion as is required by the claims can conclude from that that it does not have an armed portion and it's exactly the type of structure that we have in the accused product here actually where you have the force transfer element through the block.

[00:26:03] Speaker 01:
If we can then now look at the file history, if there's any doubt that remains from looking at the claim language and the specification, the file history absolutely puts it to rest.

[00:26:12] Speaker 01:
As Judge Chen pointed out, there were not simply suggestions, OK, I'm going to go along with the examiner's mistake here and refer to things in a mistaken way.

[00:26:23] Speaker 01:
There were definitive statements.

[00:26:24] Speaker 01:
Applicant respectfully submits that Buchanan's gripping element does not contain an arm portion.

[00:26:29] Speaker 01:
This is at 24654.

[00:26:31] Speaker 01:
Same statement in 24755.

[00:26:35] Speaker 01:
They went on and talked about how the gripping element of Buchanan does not disclose the same structure as Claim 1, namely a body portion, an arm portion, and a force transfer element.

[00:26:47] Speaker 01:
Buchanan was a monolithic block.

[00:26:50] Speaker 01:
And the point that was made multiple times by loggerhead was it does not have an arm portion.

[00:26:57] Speaker 01:
It only has a body portion.

[00:26:59] Speaker 01:
And again, the reason we know that the loggerhead construction can't be right is because their expert acknowledged that under the Judge Dara construction, Buchanan would have an arm portion.

[00:27:11] Speaker 01:
So we're in this situation that this court has noted where we have this nose of wax.

[00:27:15] Speaker 01:
It's construed one way to obtain allowance.

[00:27:17] Speaker 01:
Buchanan doesn't have an armed portion.

[00:27:19] Speaker 01:
And then they get a construction at the district court originally where Buchanan, they acknowledged, did have an armed portion.

[00:27:25] Speaker 01:
And that just can't, is clearly wrong in the context of what we're talking about here.

[00:27:31] Speaker 01:
In terms of what the district court found, we think that the district court correctly found that what happened at prosecution was simply applying a plain-meaning construction of arm portion that required the some separately identifiable projection from the body portion.

[00:27:52] Speaker 01:
By applying that to a block, loggerhead was correct during prosecution that it didn't have an arm portion, and it was correct to adopt a clamped construction that reflected that.

[00:28:05] Speaker 01:
Once you then get to the proper construction, in terms of requiring some

[00:28:12] Speaker 01:
separately identifiable structure that you can point to as an arm portion.

[00:28:17] Speaker 01:
It then follows that the summary judgment of non-infringement was correct.

[00:28:23] Speaker 01:
All we have here is a block, a monolithic block.

[00:28:26] Speaker 01:
And it's not surprising that that's the result, because as we noted in the briefing.

[00:28:31] Speaker 03:
Help me out on the following.

[00:28:34] Speaker 03:
If I didn't have Buchanan and the prosecution history, and I just had the words separately identifiable projection, it's not clear to me that summary judgment would be warranted saying this accused monolith doesn't meet that.

[00:28:57] Speaker 03:
Is there case law that says not just for the claim construction, taking the claim construction's words as a given, but for purposes of applying them, we can and should or must look back at the comparator distinguished in the prosecution history.

[00:29:18] Speaker 01:
So I would say one, you can get there that there is no separately identifiable structure based on when we then look at, again, the claim language as well as the specification.

[00:29:31] Speaker 03:
Give me that assumption.

[00:29:32] Speaker 01:
OK.

[00:29:33] Speaker 01:
And then I think you do need to look at what did they distinguish here and the fact that, again, this is all consistent.

[00:29:42] Speaker 01:
There's nothing inconsistent about what's happening in the prosecution history.

[00:29:45] Speaker 01:
I don't think there's any narrowing of any plain meaning going on here.

[00:29:49] Speaker 01:
This is simply further confirmation of the plain meaning of what an armed portion is.

[00:29:54] Speaker 01:
We have to have something separately identifiable protecting that's going to then do the function that's required in the claim.

[00:29:59] Speaker 01:
And absolutely I think that your case law suggests that you have to look at that as part of figuring out what this means and we then know that something that's a block like Buchanan can't possibly meet that.

[00:30:11] Speaker 03:
Do you have in your mind a citation or two that says that using the material that was used in the claim construction process for purposes of conducting a summary judgment inquiry into infringement

[00:30:30] Speaker 01:
You know, a lot of times that's in the context of doctrine of equivalence, and certainly... Which is also here.

[00:30:36] Speaker 01:
Sure, that's certainly here.

[00:30:37] Speaker 01:
And, you know, the Konopko case talks about how DOE can't be used to erase meaningful structural and functional limitations on which the public is entitled to rely.

[00:30:48] Speaker 03:
But what about literal infringement?

[00:30:50] Speaker 01:
Again, literal infringement, there's just nothing there.

[00:30:54] Speaker 01:
I don't know that there's cases that say that when you don't have something you know you don't have things with multiple portions You can't possibly I guess I'll go back to the angle industries case which said when you describe multiple portions You need to find you know you can't those can't simply be one in the same that that meet the multiple portions in a claim

[00:31:13] Speaker 01:
Well, you can look at the prosecution history to construe the claim language, right?

[00:31:17] Speaker 01:
Absolutely, you can look at the prosecution history.

[00:31:19] Speaker 05:
So isn't that what's happening here?

[00:31:20] Speaker 01:
Yes, absolutely.

[00:31:21] Speaker 01:
That's what Judge Paul Meyer did, looked at the prosecution history.

[00:31:25] Speaker 01:
And again, it's just simply confirming the specification, the plain language, the claim language, what's going on here.

[00:31:33] Speaker 01:
Judge Paul Meyer correctly found that what we have here is there's nothing, the prosecution district confirms that a block does not have an armed portion.

[00:31:43] Speaker 01:
Our accused product, again, designed, you know, what happened here was from day one, our, my client designed the product to add additional features.

[00:31:53] Speaker 01:
We actually

[00:31:54] Speaker 01:
you know create a better product but in order to get around the patents make sure we weren't infringing on mr brown's patents uh... made sure that it would be based the gripping element based on what was expressly explicitly distinguished during prosecution so it's no surprise that then when we finally get a proper claim construction that there is no infringement as a matter of law and the doctorable equivalents can't be uh... in composite if there's any other questions i'm i'm happy to answer them but if not

[00:32:24] Speaker 01:
Okay, thank you.

[00:32:28] Speaker 05:
Mr. Skirmont, you have a minute.

[00:32:30] Speaker 00:
Thank you, Your Honor.

[00:32:31] Speaker 00:
I wanted to address the no embodiment in the patent has, or that every embodiment in the patent has arm portions that project or extend.

[00:32:40] Speaker 00:
That is not accurate.

[00:32:42] Speaker 00:
In figure 18 of the 470 patent at appendix 00234,

[00:32:49] Speaker 00:
have gripping elements with a planar configuration and a V-shaped body portion, as the specification explains at appendix 253, column 11, lines 29 to 67.

[00:33:02] Speaker 00:
That embodiment in figure 18 that shows monolithic gripping elements

[00:33:07] Speaker 00:
is claimed in claims eighteen to nineteen of the four seven oh patent uh... and for all of the same reasons uh... is described in the open it on the prosecution history argument uh... the uh... about whether something has to be separately identifiable it was identified the arm portion of what's identified the structure of the arm portion was identified at trial by loggerheads thank you