[00:00:02] Speaker 02:
We have a busy morning in front of us.

[00:00:04] Speaker 02:
We have four cases to be argued.

[00:00:08] Speaker 02:
We received the briefs.

[00:00:11] Speaker 02:
And the court's ready to entertain the arguments of the parties.

[00:00:19] Speaker 02:
Mr. Cipolla?

[00:00:20] Speaker 02:
Cipolla?

[00:00:21] Speaker 02:
Cipolla.

[00:00:22] Speaker 02:
Cipolla.

[00:00:23] Speaker 02:
You are reserving four minutes of your time for rebuttal.

[00:00:26] Speaker 02:
Is that correct?

[00:00:27] Speaker 02:
All right.

[00:00:27] Speaker 02:
So you may proceed.

[00:00:32] Speaker 02:
The first case, by the way, let me, let me, it's 17-2292 MTD Products, Inc.

[00:00:38] Speaker 02:
versus Unaca.

[00:00:40] Speaker 03:
It's the one that relates to the 8011458 patent.

[00:00:44] Speaker 03:
Okay.

[00:00:47] Speaker 03:
This case, may it please the court, Your Honors?

[00:00:51] Speaker 03:
This case is simple.

[00:00:53] Speaker 03:
The board's claim construction decision in this case is erroneous under the law and should be reversed for at least three reasons.

[00:01:00] Speaker 03:
First, the mechanical control assembly term that is in every claim is a nonce term and the functions it is required to perform recited in claims one and nine are a means plus function element.

[00:01:14] Speaker 03:
The board itself held that this claim language favors such a claim construction.

[00:01:20] Speaker 03:
The plain claim language controls here.

[00:01:24] Speaker 03:
Second, the other intrinsic evidence

[00:01:26] Speaker 03:
the specification and the file history fully support this claim construction as I'll explain.

[00:01:31] Speaker 02:
You characterize mechanical control assembly as a nonce term?

[00:01:36] Speaker 02:
Correct.

[00:01:38] Speaker 02:
And ordinarily we look at a nonce term as a term in the abstract, highly generalized term like module.

[00:01:48] Speaker 02:
But this term says mechanical, gives you some sort of control.

[00:01:55] Speaker 02:
And then assembly, how is that a nonce term?

[00:01:58] Speaker 03:
It is a nonce term, and that mechanical coupled with assembly really is a mechanism.

[00:02:06] Speaker 03:
And I think all the experts agreed on that in this case.

[00:02:10] Speaker 03:
And mechanism has many times been held by this court to be a nonce term.

[00:02:15] Speaker 04:
Did the PTAB say it's a nonce term?

[00:02:17] Speaker 03:
Yeah, the PTAB said that it is a nonce term.

[00:02:25] Speaker 03:
APPX 21 to 23 and said it was a nonce term.

[00:02:31] Speaker 03:
It favored a means plus function claim, the entire claim language of the claims, including the functional.

[00:02:38] Speaker 04:
But then the PTAB turned to the specification.

[00:02:41] Speaker 03:
Then the PTAB turned to the specification in the file wrappers.

[00:02:44] Speaker 03:
And the PTAB relied upon the expert testimony, five pages of the expert testimony, and used the wrong standard.

[00:02:53] Speaker 03:
The PTAB

[00:02:54] Speaker 03:
then went and just looked not whether the term mechanical control assembly provides sufficient, sufficiently definite meaning for structure, but just looked at whether the specification describes structures that perform the functions based on.

[00:03:12] Speaker 04:
I thought that maybe the PTAB was saying, and just correct me if you think I'm wrong, but I thought what the PTAB was saying was you have some brief, I don't remember which one it was, where you said the mechanical control assembly

[00:03:25] Speaker 04:
is the ZTR control assembly in the specification or is known as the ZTR control assembly in the specification.

[00:03:34] Speaker 04:
And then the board looked at that and said, oh, that's then maybe lexicography or some sort of admission that causes us to say, when we look at mechanical control assembly, it does have a definite meaning as defined by this patent owner as being a ZTR control assembly, which is something specific.

[00:03:55] Speaker 03:
a number of issues there, but the main thing is that's, in our view, really irrelevant.

[00:03:59] Speaker 04:
If you look at... I understand, but do you agree first?

[00:04:03] Speaker 03:
I agree that there's a point where... Wait, don't interrupt me, please.

[00:04:06] Speaker 03:
I'm sorry.

[00:04:07] Speaker 04:
It's all right.

[00:04:08] Speaker 04:
I just want to make sure that you address my question, so I need to be able to ask them.

[00:04:12] Speaker 04:
So my question is, do you think that what I've said is a correct way to understand the PTAB's decision?

[00:04:18] Speaker 04:
I'm not saying that I agree with the PTAB.

[00:04:20] Speaker 04:
I just want to know if that is correct in my understanding of what they held and

[00:04:24] Speaker 04:
what the reasoning was.

[00:04:26] Speaker 03:
Yeah, I think part of their reasoning was that we did in our brief at one point say that the mechanical, at the opening parts of our brief, we said mechanical control assembly is described in the specification.

[00:04:39] Speaker 00:
You said it's referred to as the ZTR control assembly on page four or five of your... Yes, yes, we did say that.

[00:04:50] Speaker 03:
But we went on throughout the entire brief to describe what the ZTR control assembly is.

[00:04:55] Speaker 03:
And I would submit that that really is irrelevant, because the ZTR control assembly also, in my view, is another nonsense term, maybe even worse than mechanical control assembly.

[00:05:06] Speaker 03:
And the ZTR control assembly description is really just a collection of parts.

[00:05:11] Speaker 04:
But isn't a ZTR control assembly, it's more definite than mechanical control assembly, because at least you know it's an assembly that does zero turn radius, as opposed to mechanical.

[00:05:20] Speaker 04:
Could be anything, right?

[00:05:21] Speaker 03:
Right, absolutely.

[00:05:23] Speaker 03:
Mechanical control assembly, however, doesn't appear anywhere in the spec.

[00:05:27] Speaker 03:
And claim one is far broader.

[00:05:30] Speaker 03:
We may have made a faux pas in our brief when we did that.

[00:05:34] Speaker 03:
We made many arguments.

[00:05:35] Speaker 03:
We did not waive them contrary to what the director said.

[00:05:41] Speaker 03:
In our sir reply, which we were permitted, we pointed out that claim one doesn't require a zero turn.

[00:05:48] Speaker 03:
It doesn't require a zero turn.

[00:05:49] Speaker 03:
It only requires steering forwards and backwards.

[00:05:53] Speaker 00:
Unlike claim nine?

[00:05:54] Speaker 03:
Unlike claim nine.

[00:05:56] Speaker 03:
And so it's broader than a ZTR control assembly.

[00:06:00] Speaker 03:
And so mechanical control assembly is something more than just the ZTR control assembly that's in the specification.

[00:06:11] Speaker 04:
I think that you attempted at one point to look and see if the word mechanical control assembly had been used in prior patents

[00:06:18] Speaker 04:
articles and couldn't find anything or maybe you did find something but it was from different types of art because what could you tell me about that?

[00:06:27] Speaker 03:
Yeah, we looked far and wide in patents and dictionaries.

[00:06:31] Speaker 03:
We couldn't find any definition anywhere for mechanical control assembly but we did look at other patents.

[00:06:39] Speaker 03:
Windshield wipers come to mind as one of them where mechanical control assembly was just referred to as a collection of parts.

[00:06:48] Speaker 03:
So we did do that.

[00:06:52] Speaker 03:
And I think the PTAB found that actually persuasive when they concluded that the actual term, mechanical control assembly, favors being a nonce term.

[00:07:13] Speaker 03:
Did I answer your question?

[00:07:14] Speaker 03:
Yes, you did.

[00:07:17] Speaker 00:
Can I ask you, I realize you haven't mentioned, I think you said you had two other points.

[00:07:22] Speaker 00:
I assume one of them is your, let's call it a due process point or something.

[00:07:29] Speaker 00:
Am I right in thinking that if we agree with you about your claim construction, we do not need to reach any question about whether the board denied you some procedurally necessary opportunity to put on evidence?

[00:07:43] Speaker 03:
I've thought about this quite a bit, Your Honors.

[00:07:45] Speaker 03:
I think if you reach

[00:07:47] Speaker 03:
the conclusion that the claim construction should be reversed or changed to a section 12 paragraph 6 construction that we're at a point where the corresponding structure hasn't been identified and it was definitely disputed below and we were not

[00:08:12] Speaker 03:
We have the first say on that matter.

[00:08:15] Speaker 03:
We have the burden of persuasion and we never got a chance to rebut the facts that the other side put in because they put it in on their reply.

[00:08:23] Speaker 00:
You had at least a suggestion which I guess didn't bowl me over that maybe you were entitled to outright reversal because a regulation required Toro to have

[00:08:38] Speaker 00:
identified a corresponding structure in its petition, even though at that stage it did not think this was a 112-6 claim at all, which struck me as a far-fetched reading of the regulation.

[00:08:53] Speaker 03:
Having not had any experience with that regulation and having we did a lot of research on it, really this was sort of an oddball situation where we don't know if the rules really

[00:09:06] Speaker 03:
dealt with a situation where there would be a dispute.

[00:09:09] Speaker 03:
But your position today is... My position today is most, after thinking about it hard, that it should be remanded and we should get a chance to present our rebuttal evidence on what the corresponding structures are in their construction and then the decision on what they are being made by the PTAB.

[00:09:29] Speaker 00:
Toro is not here anymore, right?

[00:09:31] Speaker 03:
No, he settled in there.

[00:09:33] Speaker 00:
What's your understanding of what should happen on remand since Toro hadn't put on corresponding structure evidence?

[00:09:40] Speaker 03:
No, they had.

[00:09:42] Speaker 00:
Oh, they did in the reply?

[00:09:42] Speaker 03:
They had, but we had not had a chance to rebut it.

[00:09:45] Speaker 03:
I see.

[00:09:45] Speaker 03:
Because it's our burden of proof.

[00:09:49] Speaker 02:
Well, you had a chance for a surreply, correct?

[00:09:53] Speaker 03:
We had a chance for surreply, but we were not permitted to put in any evidence.

[00:09:57] Speaker 02:
Did you file the surreply at all?

[00:10:00] Speaker 03:
Yes, Your Honor.

[00:10:01] Speaker 04:
What impact, if any, do you think the BRI standard has on the question of whether something is written in means plus function format?

[00:10:10] Speaker 04:
Where in a case like this, there's arguments being made on both sides for why it is or isn't in means plus function format.

[00:10:18] Speaker 03:
And what is the BRI's impact on that?

[00:10:21] Speaker 04:
Yeah.

[00:10:22] Speaker 03:
I think I have read some cases and the rules that this is one exception of the BRI when IPRs first came on, is that means plus function.

[00:10:32] Speaker 03:
is one exception where the BRI should not be used.

[00:10:37] Speaker 02:
Anything else?

[00:10:39] Speaker 02:
You still have five minutes.

[00:10:40] Speaker 02:
Well, you've got a minute before you get into your rebuttal time.

[00:10:46] Speaker 03:
Your Honors, I know the Board most heavily relied upon this file wrapper argument that was made that this claim term was structural during the file history.

[00:11:01] Speaker 03:
I would submit that the board thought that was inconsistent with arguing that there's a means plus function claim here.

[00:11:10] Speaker 03:
And I would submit it's not inconsistent.

[00:11:12] Speaker 03:
I mean, all means plus function claims have to be structural.

[00:11:16] Speaker 03:
They have to be structural.

[00:11:18] Speaker 03:
And the claim element itself, even though it didn't use the word means, it is in classic means plus function format already.

[00:11:25] Speaker 00:
It's structural just because you

[00:11:30] Speaker 00:
find the structure written in a different place, not under one of the numbered claims, but in the body of the prosecution.

[00:11:36] Speaker 00:
Correct.

[00:11:37] Speaker 00:
So the claim remains structural with all the required functions.

[00:11:40] Speaker 00:
Correct.

[00:11:41] Speaker 00:
Which are just not intended uses, which is what the subject of the debate was in the prosecution history.

[00:11:47] Speaker 00:
That's your position.

[00:11:48] Speaker 00:
Correct.

[00:11:50] Speaker 03:
No, I'll wait for my rebuttal.

[00:11:54] Speaker 02:
All right, good.

[00:11:55] Speaker 02:
Let's hear from Mr. Attorney Sowert.

[00:11:59] Speaker 01:
Sollert.

[00:12:06] Speaker 01:
May it please the court, Peter Sollert for the USPTO director.

[00:12:12] Speaker 01:
There are two issues before this court today in the review of this IPR.

[00:12:19] Speaker 01:
The first, as you are already aware, is the weather.

[00:12:25] Speaker 04:
Can I ask you a question?

[00:12:26] Speaker 04:
Just jump right in.

[00:12:28] Speaker 04:
Do you know of any evidence of prior?

[00:12:32] Speaker 04:
Patents or articles technical articles that use the term mechanical control assembly to have a certain structural meaning like a specified class of structures or anything like that I I'm not aware of any of the evidence in the record on that issue your honor, but I think it's what's important is but there is evidence on the record I guess admitted by

[00:12:57] Speaker 04:
the appellant here that would suggest that mechanical control assembly has been used in different contexts?

[00:13:04] Speaker 01:
That's correct.

[00:13:06] Speaker 01:
I think it's not the most specific term that could be used, but it's not the vaguest either.

[00:13:13] Speaker 00:
I'd like to start with the board's finding was... That does leave us with a lot of room between those two polls.

[00:13:20] Speaker 01:
Yes, Your Honor, and I'm going to try and narrow that down considerably right now.

[00:13:24] Speaker 01:
I think with the

[00:13:25] Speaker 01:
the board did in its decision was walk through each of the steps that this court's case law dictates to look at all of the evidence that it had in the intrinsic record and from extrinsic sources and then look at that all together to determine whether this term should be treated as means plus function.

[00:13:46] Speaker 01:
And so looking at one part of it, just the words mechanical control assembly in isolation is a mistake.

[00:13:54] Speaker 00:
procedural impeccability of the board's process is really not the issue here.

[00:14:01] Speaker 00:
When we go through each of those steps, what do we find?

[00:14:07] Speaker 00:
And on the claim language itself, the board more or less agreed with the other side, just in an isolated sort of way, and then found some support in the spec and quite a lot of support in the prosecution history.

[00:14:19] Speaker 00:
And we have to evaluate the strength of

[00:14:22] Speaker 00:
those, essentially those two pieces of support.

[00:14:25] Speaker 01:
That's correct, Your Honor.

[00:14:26] Speaker 01:
But I think walking through that process, because it was thorough and done correctly by the board, helps understand, this court understand why the board was persuaded to come out the way it did.

[00:14:39] Speaker 00:
We're not engaged in a psychological enterprise.

[00:14:45] Speaker 00:
Tell us why you think the, your friend on the other side's argument about the spec

[00:14:51] Speaker 00:
is, I mean, what's your answer to that?

[00:14:54] Speaker 00:
He says the spec actually isn't terribly strong for the board side, and neither is the prosecution history.

[00:15:01] Speaker 00:
What are your answers on the merits?

[00:15:04] Speaker 01:
So on the specification, on the first point, there was discussion already about whether a ZTR control assembly and a mechanical control assembly should be treated, viewed similarly when reading the specification.

[00:15:17] Speaker 01:
And the board found that they should,

[00:15:19] Speaker 01:
as Your Honor already pointed out, pointing to patent owner's response at five, where patent owner made a very specific statement that a mechanical control assembly referred to in the specification as a ZTR control assembly is generally shown and described in the specification.

[00:15:36] Speaker 01:
And then patent owner cited to Appendix 60, Column 3, Lines 40 to 41, which describes Figures 2 and 3 of the patent as showing a ZTR control assembly Layout Number 31.

[00:15:49] Speaker 04:
and so why is that describing the corresponding structure I mean I just I see the point the board made I'm just I have a hard time understanding it's hard to know when is someone being a lexicographer and defining something versus when are they identifying the corresponding structure I understand your honor I'm just trying to establish a preliminary point which is that the board was relying on what the

[00:16:17] Speaker 01:
the patent specification says about ZTR control assembly in making that determination, which has been challenged here today.

[00:16:25] Speaker 01:
And there is no description of a mechanical control assembly separate in the specification.

[00:16:31] Speaker 01:
And so what the board did was look to the description of ZTR control assembly.

[00:16:36] Speaker 01:
And they found, looking primarily at... The thing is, is that we know what they did.

[00:16:42] Speaker 04:
I'm just trying to help you.

[00:16:43] Speaker 04:
We know exactly what they did.

[00:16:45] Speaker 04:
Because we read their decision and we thought about it a lot.

[00:16:48] Speaker 04:
So then the question is, why are they right?

[00:16:50] Speaker 01:
Yes.

[00:16:52] Speaker 01:
And the board is right because they found in the patent specific description of this ZTR control assembly in terms of its inputs and its outputs and the way that it functions in a way that's similar to other cases where this court has relied on similar descriptions in the specification.

[00:17:14] Speaker 01:
The director will lie.

[00:17:16] Speaker 00:
I can adjust this, and this is a point that I know that you've seen come up in some of our decisions before.

[00:17:21] Speaker 00:
Even in a pure indisputable means language 112.6 case, there will in fact be corresponding structure, or at least there should be if you're even intending to draft it that way.

[00:17:38] Speaker 00:
So the fact that there is structure in the spec, that fact alone doesn't really help

[00:17:44] Speaker 00:
you determine whether this is an ordinary non 112f claim or a 112f claim.

[00:17:52] Speaker 01:
Right.

[00:17:53] Speaker 01:
And your honor, I think it's the question is, is the term being used when you read the specification as a descriptor for a class of devices?

[00:18:02] Speaker 01:
And I think referring to the Apple Motorola case that the director cited, there are several examples of that cited in there.

[00:18:11] Speaker 01:
One of the cases is linear technology.

[00:18:13] Speaker 01:
This court looked at the term circuit.

[00:18:15] Speaker 01:
And as a person with a background in electrical engineering, circuit to me is no more specific than collection of gears or mechanical control assembly.

[00:18:24] Speaker 01:
And yet this court found that circuit in combination with the description and the specification of the inputs and outputs for the circuit and how it would operate was enough to be sufficient structure.

[00:18:37] Speaker 01:
And I think that's very analogous.

[00:18:39] Speaker 01:
We have the mechanical analogy to that electrical situation here.

[00:18:43] Speaker 00:
Similarly, but what we don't have here is the use in the spec of this claim phrase And that distinguishes it from heuristic in Apple Motorola, which was all over the spec I assume I don't remember in linear technologies that circuit was actually used in the spec had to be Yes, your honor, but that was my preliminary point about ZTR control assembly in the spec should be treated as equivalent to the mechanical control assembly

[00:19:12] Speaker 01:
There's nothing to distinguish them.

[00:19:14] Speaker 01:
There are not two separate structures that you could parse out.

[00:19:17] Speaker 01:
Sorry.

[00:19:18] Speaker 04:
The claimed term is mechanical control assembly.

[00:19:23] Speaker 04:
And then that is different than ZTR control assembly, isn't it?

[00:19:28] Speaker 01:
It's different words, Your Honor, but there's nothing to distinguish those two terms in the specification because there's only one embodiment described.

[00:19:36] Speaker 01:
There's no way to parse out a mechanical control assembly that is broader,

[00:19:41] Speaker 01:
or more generic than a ZTR control assembly because there's only one set of structures disclosed.

[00:19:48] Speaker 00:
Then claim nine makes it reasonably clear that not all mechanical control assemblies enable zero turning radius.

[00:19:58] Speaker 01:
And I think that's support for the board's position, your honor, because if we treat, then that suggests that mechanical control assemblies are a class of device

[00:20:11] Speaker 01:
that is broader than ZTR controls, if there is to be a difference.

[00:20:15] Speaker 00:
But every 112F claim is going to refer to a class of devices.

[00:20:21] Speaker 00:
The question is how that class is defined, whether it's defined only functionally or whether it's defined by language that imports a structural aspect to the definition.

[00:20:37] Speaker 00:
And that's what's a little bit hard on its face to find.

[00:20:40] Speaker 00:
with this term.

[00:20:41] Speaker 00:
Indeed, the board found on its face it probably wasn't there.

[00:20:45] Speaker 01:
Well, the board found that looking at the claims alone it wasn't there.

[00:20:49] Speaker 01:
But in view of the specification in the prosecution history and the expert testimony, that it was there.

[00:20:54] Speaker 01:
Taking those things together, there was sufficient structure to define a mechanical control assembly.

[00:21:01] Speaker 00:
Remind me what expert testimony you were referring to.

[00:21:04] Speaker 00:
Your, not yours, Toro's?

[00:21:06] Speaker 01:
It was Toro's expert, Dr. Reinholz.

[00:21:11] Speaker 01:
Appendix 2372 to 2377.

[00:21:17] Speaker 01:
Paragraph, that's in paragraphs 39 to 42 of the second Smith declaration.

[00:21:23] Speaker 01:
I'm sorry, I said Reinhold's first and I should have said his name.

[00:21:25] Speaker 00:
Toro's expert.

[00:21:27] Speaker 00:
What was Toro's name?

[00:21:28] Speaker 00:
I mean, Toro's name.

[00:21:30] Speaker 01:
Toro's expert was Dr. Smith.

[00:21:31] Speaker 01:
Smith, okay.

[00:21:32] Speaker 01:
And so the board relied on Dr. Smith's second declaration

[00:21:39] Speaker 01:
Again, I did give the correct appendix site 2372 to 2377.

[00:21:42] Speaker 01:
And the board clearly applied the correct standard to find sufficient structure.

[00:21:55] Speaker 01:
The board recited that standard at appendix 30 and again at appendix 36 in rejecting an argument by Toro that it thought was set the threshold too low for sufficient structure.

[00:22:09] Speaker 01:
And the director has maintained that argument, for example, at pages 23 and 24 of the director's brief.

[00:22:16] Speaker 04:
So I don't think that... Can I ask you something?

[00:22:17] Speaker 04:
If I don't agree, I'm struggling.

[00:22:21] Speaker 04:
I'm struggling with the reliance on the specification, I think, because one of the reasons why, if the claim was actually written in means plus function format, nobody would look to the specification, you know, if it was really means for doing this and the standard means plus function format.

[00:22:37] Speaker 04:
You wouldn't look to the specification and say, oh, the specification here has a very definite structure.

[00:22:42] Speaker 04:
So therefore, we're going to find that it's not in means plus function format.

[00:22:46] Speaker 04:
I'm very confused by the fact that when everybody agrees, including the board, that the broad term used in the claim is a nonce term, how can the specification, just because it uses a different term, how is that defining the nonce term as opposed to just disclosing corresponding structure?

[00:23:04] Speaker 01:
It's defining the nonce.

[00:23:07] Speaker 01:
the term in the specification as a name for structure.

[00:23:10] Speaker 01:
But it doesn't use the term in the claim.

[00:23:12] Speaker 04:
It uses a different term.

[00:23:14] Speaker 01:
That's correct, Your Honor.

[00:23:16] Speaker 01:
But Pat Nooner admitted that ZTR control assembly and mechanical control assembly are the same thing.

[00:23:24] Speaker 04:
Well, I don't know that they did that.

[00:23:25] Speaker 04:
I mean, I realize that was the language where they said it's referred to in the specification as ZTR.

[00:23:31] Speaker 04:
But then later in their brief, they talk about how

[00:23:35] Speaker 04:
You know, we think this is in 1-12-6 paragraph format.

[00:23:38] Speaker 04:
We think the corresponding structure is the ZTR mechanical structure.

[00:23:41] Speaker 04:
I mean, they have that in there, so I'm not sure if that one sentence provides such an admission that we should say, well, because you said it's the same thing, you didn't use means plus function format claiming here.

[00:23:55] Speaker 01:
Well, assuming for a moment that mechanical control assembly was a means plus function term, and it's not used in the spec, and it's not equivalent to ZTR control assembly,

[00:24:04] Speaker 01:
then they have a written description problem.

[00:24:06] Speaker 01:
Because mechanical control assembly isn't in there anywhere, how can it possibly be linked to any structure for performing the functions?

[00:24:13] Speaker 04:
I mean, it's a function format claim.

[00:24:15] Speaker 04:
You find the structure that performs the function identified in the claim limitation, and that is the corresponding structure.

[00:24:26] Speaker 04:
There's no written description problem.

[00:24:28] Speaker 04:
I don't understand that point.

[00:24:30] Speaker 01:
Even looking at the specific structures, there is nothing in the specification that would let you make a set of structure to correspond to mechanical control assembly that is different than what you would come up with if you were trying to write, come up with a corresponding structure for ZTR control assembly.

[00:24:51] Speaker 01:
There's one embodiment, especially as regards to control assembly.

[00:24:57] Speaker 01:
So if you do it,

[00:24:58] Speaker 01:
If you put in the structures that are disclosed, you wind up with a ZTR control assembly.

[00:25:03] Speaker 01:
It's not like you can, there's some alternate embodiment that they did first and they said, if you add parts B, C, and D, now it's a ZTR.

[00:25:13] Speaker 01:
There's nothing like that.

[00:25:14] Speaker 01:
There's only one unified disclosure.

[00:25:16] Speaker 04:
So your point is that if someone had a means of dysfunction claim, like written means for doing this, and it was undisputed, that it would be a problem if they only had one embodiment disclosed?

[00:25:27] Speaker 01:
No, but I'm saying that there would be no difference between claim 1 and claim 9.

[00:25:31] Speaker 01:
If they're both means plus function terms, you can't come up with two different sets of structure to correspond to claim 1 and claim 9.

[00:25:38] Speaker 01:
There's only one set of structure in the specification.

[00:25:42] Speaker 01:
And so the claims wind up being exactly the same.

[00:25:46] Speaker 01:
And so this debate about whether a ZTR control assembly is different winds up being irrelevant

[00:25:56] Speaker 04:
I don't know that okay I guess I'm just maybe I'm not expressing myself well but I'm just having a hard time understanding why the nonce term becomes becomes defined by ZTR anyway I'm sorry I'm not asking a very good question no please continue I understand your honor I'd like to say I don't think the mere use of a different phrase ZTR control assembly all standing by itself

[00:26:22] Speaker 01:
in the specification is enough to give it a definition, and I'm not trying to argue that.

[00:26:27] Speaker 01:
It's that we can look at all the ways ZTR control assembly, that term is used in the specification, and how it's described, how it's treated, the way it's used in the language, and see is it treated as a structural term, as meant to stand in for something else, for a class of products, like a circuit.

[00:26:49] Speaker 01:
So there wasn't a common understood coin term like a transmission in a car for this.

[00:26:54] Speaker 04:
So they called it.

[00:26:55] Speaker 04:
You're using this.

[00:26:57] Speaker 04:
You would make the same argument, I assume, for mechanical control assembly as ZTR control assembly?

[00:27:04] Speaker 04:
Because your argument is that this term, mechanical control assembly, is a specific structure because the ZTR control assembly is a specific structure.

[00:27:13] Speaker 04:
But you're making the same argument regardless of the term, right?

[00:27:16] Speaker 02:
Yes.

[00:27:17] Speaker 02:
OK.

[00:27:19] Speaker 02:
Almost done.

[00:27:19] Speaker 02:
You're out of time, sir.

[00:27:22] Speaker 01:
Your Honor, can I just make two very quick points?

[00:27:25] Speaker 01:
Yes.

[00:27:26] Speaker 01:
If the court finds that this is a very close question, the patent owner did not use the word means, and it's their burden to show that means plus function analysis should apply.

[00:27:37] Speaker 01:
Similarly, broadest reasonable interpretation does apply to IPR proceedings, as we stated in our brief, the Sky case.

[00:27:46] Speaker 01:
That's at page 27 and 28 of the brief.

[00:27:48] Speaker 00:
And just really quick on the... Judge Stoll asked a question of your friend on the other side.

[00:27:53] Speaker 00:
Has BRI been applied to answer the question, does 112F apply?

[00:27:59] Speaker 01:
Yes.

[00:28:00] Speaker 00:
Is that what Sky does?

[00:28:02] Speaker 01:
Yes.

[00:28:02] Speaker 00:
Does BRI on the question whether it is a 112F claim?

[00:28:07] Speaker 01:
Yes.

[00:28:07] Speaker 00:
Okay.

[00:28:09] Speaker 01:
And just very quickly on the due process question, as

[00:28:15] Speaker 01:
Director said Belden clearly answered that issue.

[00:28:19] Speaker 01:
There's no right to serve rebuttal evidence It's discretionary and patent owner the appellate here has not made a strong showing as to why they should have received Thank you Thank you Counseling got four minutes um first of all getting down to

[00:28:45] Speaker 03:
when there's a definition or there's just a broad description of a collection of parts that make up a broad description of parts in this sort of a context when you have a means plus function alleged application when there is no use of the word means

[00:29:11] Speaker 03:
I think the Welker bearing case at 550 F3rd, 1090 is pretty instructive there.

[00:29:19] Speaker 03:
In that case, the nonce term that was not the word means was found to be a means plus function claim.

[00:29:28] Speaker 03:
And the specification repeatedly described a structure.

[00:29:34] Speaker 03:
And it was a lot more specific than this case.

[00:29:37] Speaker 03:
The nonce term there was a mechanism for moving said finger.

[00:29:40] Speaker 03:
And the court repeatedly went to the specification and pointed out that the clearly, and the word mechanism for moving said finger was used in the spec, and it pointed out that this is a rotating central post.

[00:29:57] Speaker 03:
But then the claim just said mechanism for moving said finger.

[00:30:01] Speaker 03:
And the court there found the terms to be a means plus function element.

[00:30:05] Speaker 03:
So there was a lot more specific definition than here.

[00:30:10] Speaker 03:
still found a means plus function element.

[00:30:15] Speaker 03:
Going back to the testimony of Mr. Smith that the board relied upon below 23.7, 22 to 27, if you look at that testimony, all that Mr. Smith says is that all of the structures in the specification are structural.

[00:30:40] Speaker 03:
he never says that it's specific definition or specific enough uh... that mechanical control suddenly is specific enough uh... that someone under or nearly skilled the our understanding some structure he just says gtr control assembly has all these structures and their structural he goes on for five pages and and i'm right or wrong and remembering that the board did not find that there was in understanding out in the

[00:31:10] Speaker 00:
world beyond the confines of this patent among relevant skilled artisans about a structural meaning to this three-word phrase.

[00:31:19] Speaker 03:
Correct.

[00:31:25] Speaker 03:
In fact, the board actually stated that the claim language in its entirety tends to favor patent owners' position.

[00:31:31] Speaker 00:
And it recited Dr. Reinholz's testimony that there was no such extra usage, extra patent,

[00:31:40] Speaker 00:
skilled artisan world usage and understanding but it didn't either specifically disagree with it or endorse it I think.

[00:31:47] Speaker 00:
Is that right?

[00:31:48] Speaker 03:
I believe you're correct your honor.

[00:31:53] Speaker 03:
Yeah I mean the specific holding of the board was that the genericness of the term bears similarities to other words or phrases that have been held to be subject to 112 paragraph 6 because they do not connote sufficiently definite structure.

[00:32:09] Speaker 03:
that's at appendix 19.

[00:32:22] Speaker 03:
Final rebuttal point, there's not just one embodiment in the specification.

[00:32:26] Speaker 03:
There's a number of structures described alternatively.

[00:32:30] Speaker 03:
One comes to mind as a cable versus a solid rod or arm that could be used

[00:32:37] Speaker 03:
in one part of the mechanical control assembly.

[00:32:41] Speaker 03:
There's a number of other alternative embodiments and structures that are identified as the corresponding structure.

[00:32:48] Speaker 03:
And finally, the ZTR control assembly references in that specification.

[00:32:54] Speaker 03:
I mean, if anyone looked at that, anyone that's not a patent lawyer, anybody that doesn't do this and tried to say that there's some definition, some specific definition in there for that,

[00:33:06] Speaker 03:
I think they would be wrong.

[00:33:07] Speaker 03:
It's not a specific definition.

[00:33:09] Speaker 03:
We have a dash in the definition.

[00:33:11] Speaker 03:
It is just used to refer to the whole collection of parts that make up the whole patent.

[00:33:19] Speaker 03:
Thank you, Your Honor.

[00:33:20] Speaker 02:
Thank you.

[00:33:25] Speaker 02:
Our next case is 17-2294 MT2.