[00:00:00] Speaker 02:
Good morning.

[00:00:01] Speaker 02:
Case number 21187, Bleck X versus Pain Point Medical.

[00:00:09] Speaker 02:
Mr. Kelly, whenever you're ready.

[00:00:12] Speaker 01:
Thank you, Chief Judge Prost.

[00:00:14] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:16] Speaker 01:
This Court's law is clear.

[00:00:18] Speaker 01:
The proper construction of a claim term can usually be resolved on the intrinsic evidence alone, and this case is no exception.

[00:00:25] Speaker 01:
The district court's error here was elevating a dictionary definition over that intrinsic evidence, and that error was the result of a cascading series of mistakes.

[00:00:34] Speaker 01:
The court discounted clear language in the specification based on its own theory outside the record, and then it used that theory to discount other evidence in the intrinsic record.

[00:00:43] Speaker 01:
It even adopted a scorecard approach at one time.

[00:00:45] Speaker 01:
It counted up prior art references as if it were endeavoring to figure out what the average term, what the average meaning of the term swab is in the prior art.

[00:00:54] Speaker 02:
Mr. Kelly, can I interrupt?

[00:00:56] Speaker 02:
I'm sorry.

[00:00:57] Speaker 02:
This is Judge Prost.

[00:00:58] Speaker 02:
Can I interrupt you just because time is short?

[00:01:01] Speaker 02:
Of course.

[00:01:01] Speaker 02:
I appreciate and understand all of your arguments.

[00:01:05] Speaker 02:
But, you know, the odd thing for me at least, and you've been around almost as long as I have, is Philip's rejection of the supremacy of dictionary definitions

[00:01:15] Speaker 02:
went to the fact that usually they were broader than what the intrinsic record would allow.

[00:01:21] Speaker 02:
Here we kind of have the reverse of that, right?

[00:01:25] Speaker 02:
But let me ask you, going back to Phillips in terms of dictionaries versus non-dictionaries and reliance on those, Phillips starts off with the plain and ordinary meaning of the claims, right?

[00:01:36] Speaker 04:
Yes.

[00:01:36] Speaker 02:
So if we look at it that way, obviously the claim language repeated, the term in the claim that's in dispute here is swap.

[00:01:45] Speaker 02:
So if you start off by looking at the plain and ordinary meaning of the term swab, why would not almost the uniform definition of swabs being absorbent be sufficient, or at least in the absence of any lexicography otherwise?

[00:02:03] Speaker 01:
Well, Your Honor, I would start by pointing out that it's the plain and ordinary meaning in the context of the invention, as would be understood by one skilled in the art.

[00:02:12] Speaker 01:
And even though

[00:02:14] Speaker 01:
Contemporary dictionaries, the majority of them, even though if they happen to reference absorbent materials, that doesn't mean that's how somebody skilled in this art would read this application.

[00:02:25] Speaker 03:
But it's all of the dictionaries, right?

[00:02:28] Speaker 03:
It's not just some of them.

[00:02:32] Speaker 01:
Your Honor, I think at least one of them didn't refer to the word absorbent in the definition itself, the one that referred to cotton or gauze wrapped around the end of a slender wooden stick.

[00:02:43] Speaker 01:
And of course, we know

[00:02:44] Speaker 01:
from Dr. Donenfeld's reference to a fairly old article that there is such a thing as non-absorbent cotton, and that's why there was such a thing as a non-absorbent cotton swab at least 100 years ago.

[00:02:56] Speaker 01:
But, Your Honor, regardless of whether... Go ahead.

[00:03:02] Speaker 01:
Thank you, Chief Judge.

[00:03:03] Speaker 01:
I was going to say, regardless of whatever those dictionaries say, we still do have to start with the intrinsic evidence itself and the application itself,

[00:03:11] Speaker 01:
which refers to any material safe for contacting the eye without harming the eye.

[00:03:15] Speaker 01:
And then if the question shifts.

[00:03:17] Speaker 03:
But wait, you can't stop with that part of the specification.

[00:03:22] Speaker 03:
You have to go and read the top part of column four.

[00:03:26] Speaker 03:
And the reference to porous means absorbent, right?

[00:03:33] Speaker 01:
I don't know that that's correct, Your Honor, but it is correct, of course,

[00:03:38] Speaker 01:
an embodiment in the specification does refer to absorbency.

[00:03:41] Speaker 01:
It is correct that that's what the sponge is doing, because one of the embodiments, only one of the embodiments, is the application of liquid to the eye for the purpose of helping out the process, which otherwise is not claimed or described as using a liquid at all, either in delivery or in absorption.

[00:04:01] Speaker 03:
OK, but just stick with my question here.

[00:04:04] Speaker 03:
Let's assume that porous and absorbent are synonyms, which is what dictionaries show.

[00:04:12] Speaker 03:
And it says here, it will be appreciated that similar materials, why isn't that a reference to similar materials that have the characteristics of soft porous and resilient?

[00:04:27] Speaker 01:
Two reasons, Your Honor.

[00:04:28] Speaker 01:
First, it's still only in the context of that embodiment and it is not in the broader context of the entire application.

[00:04:34] Speaker 01:
But more importantly, that's not all that sentence says.

[00:04:37] Speaker 01:
It says similar materials capable of removing debris from on the eye without harming the eye are readily apparent and may also be used.

[00:04:47] Speaker 01:
So that bookend at the end of that discussion referring to similar materials directly speaks to what the similarity is.

[00:04:55] Speaker 01:
capability of removing debris from the eye without harming the eye.

[00:04:59] Speaker 02:
But even if you were to read all of that... Let me interrupt you just so your answer can be more fulsome.

[00:05:07] Speaker 02:
If you look at the sentence that you repeatedly point to appropriately, which is at the bottom of column three, that says, manufacture of any material suitable for contacting the eye without harming the eye.

[00:05:19] Speaker 02:
What is the difference between that sentence

[00:05:21] Speaker 02:
and the one that Judge Dyke just referenced in column four.

[00:05:26] Speaker 02:
Why do you need that sentence in column four if the sentence in column three means what you say it means?

[00:05:33] Speaker 02:
Do you understand my question?

[00:05:34] Speaker 02:
The two sentences seem quite similar, right?

[00:05:40] Speaker 01:
They do seem similar, Your Honor, and I would say that the primary definition or the language that is most important is the language that refers to the type of material, which is exactly

[00:05:51] Speaker 01:
contrary to how the district court construed the term.

[00:05:53] Speaker 01:
As to the second part of your question about the second sentence, I would say that second sentence comes in the context of discussing the sponge embodiment and clarifies that that embodiment isn't limiting the entire specification to a sponge.

[00:06:08] Speaker 01:
And we also know that because there's a dependent claim that refers to sponge.

[00:06:13] Speaker 01:
But if we just step back and then ask the question that I think is sort of lurking behind all of this, which is, well,

[00:06:20] Speaker 01:
It does say swab and doesn't swab mean absorbent.

[00:06:24] Speaker 01:
We can look right to the intrinsic evidence, I'm sorry, and confirm that the answer to that question is no.

[00:06:31] Speaker 01:
It doesn't mean that.

[00:06:32] Speaker 01:
We know that because prior art that was directly relevant to ICARE referred to non-absorbent silicone swabs.

[00:06:41] Speaker 02:
That's the Freeman reference.

[00:06:43] Speaker 02:
Can we still stay at the language in column three and column four?

[00:06:46] Speaker 02:
But the word, the embodiment is prefaced by the word, however.

[00:06:51] Speaker 02:
What does however mean in that context?

[00:06:55] Speaker 01:
Your Honor, I think however means, I'm sorry, I would say that however means that the author of this part of the specification is acknowledging that the discussion is now shifting to an embodiment and is talking about something narrower than what was just discussed.

[00:07:13] Speaker 01:
The specification says the sponge can be made out of any material that's safe to contact the eye without harming the eye.

[00:07:20] Speaker 01:
And then it transitions over to a narrower embodiment, and it signals that transition with the word however.

[00:07:26] Speaker 01:
So we would read this entire discussion as entirely consistent with the notion, consistent with the intrinsic evidence, that a swab need not be absorbent, but that it can be, and that a sponge is an embodiment within the scope of this patent

[00:07:42] Speaker 01:
that is an absorbent swab.

[00:07:45] Speaker 03:
Yeah, but if we read in column four, the sentence beginning on line seven, it will be appreciated, however, that similar materials, if we read that reference to similar materials, to being materials that are soft, porous, and resilient, that suggests that the material has to be porous, right?

[00:08:12] Speaker 01:
If you read it that way, it suggests that, Your Honor, but for the embodiment of figure one, which is what this part of the specification is talking about.

[00:08:20] Speaker 01:
That's the very last line on column three.

[00:08:22] Speaker 01:
However, as shown in the embodiment on figure one, the rest of that paragraph we would maintain is directed to the embodiment in figure one.

[00:08:31] Speaker 01:
And I can't disagree that the embodiment in figure one includes a sponge, but that's not the question.

[00:08:38] Speaker 01:
The question is not,

[00:08:40] Speaker 01:
whether or not swab.

[00:08:41] Speaker 04:
Mr. Kelly, this is such huge.

[00:08:43] Speaker 04:
Can I just interrupt a minute?

[00:08:44] Speaker 04:
I'm trying to follow your reasoning a little bit, even going to your argument that the broad language of it could be manufactured of any material suitable for contacting the eye without harming the eye.

[00:08:55] Speaker 04:
That's still defining the material to be used for a swab, is it not?

[00:09:02] Speaker 01:
It is, Your Honor.

[00:09:03] Speaker 04:
And I mean, potentially, there are types of swabs

[00:09:07] Speaker 04:
that you could use for certain things that you couldn't use in the eye.

[00:09:11] Speaker 04:
So, why isn't that broad definition still in the context of the SWOT?

[00:09:16] Speaker 04:
And let me get to my real point here.

[00:09:17] Speaker 04:
I think we can, I mean, I think I heard you agree that even if the general common plain and ordinary meaning of SWOT is absorbent, you're saying in this art field, in this field of endeavor, a skilled artisan would know that SWOT can be non-absorbent.

[00:09:35] Speaker 04:
Is that correct?

[00:09:37] Speaker 01:
It's correct in this field of endeavor.

[00:09:39] Speaker 01:
And I don't know that it's not correct in other fields of endeavors as well.

[00:09:43] Speaker 04:
Well, you know that.

[00:09:44] Speaker 04:
OK, OK, but let me just ask my question then.

[00:09:47] Speaker 04:
What's the evidence for that?

[00:09:50] Speaker 04:
You're at the end reference.

[00:09:54] Speaker 01:
Well, we also have the reference.

[00:09:56] Speaker 01:
It's more than the Freeman reference, Your Honor.

[00:09:59] Speaker 01:
The Grandin reference is the reference that was applied during prosecution that had a silicone heat sink that the examiner

[00:10:06] Speaker 01:
used to meet the swab limitation.

[00:10:08] Speaker 01:
So the examiner read swab on something that was silicone that touched just in front of the eyelid.

[00:10:14] Speaker 01:
And then we have more than that, though, Your Honor.

[00:10:16] Speaker 01:
We have Dr. Donenfeld's declaration that discusses heat.

[00:10:22] Speaker 04:
Is that the reference where you use heat on the outside of the eye to remove the blockage?

[00:10:29] Speaker 01:
Well, to soften the blockage, yes, Your Honor.

[00:10:31] Speaker 01:
That's the Grennan reference.

[00:10:32] Speaker 04:
And then we have... Does that refer to it as a swab?

[00:10:38] Speaker 01:
It does not use the words... The examiner just... Right.

[00:10:41] Speaker 04:
Well, how is that helpful to you?

[00:10:44] Speaker 04:
It's helpful, Your Honor, because... Calling that a swab.

[00:10:46] Speaker 01:
Because the examiner... Because the examiner... Well, because the examiner is... Who was reading the specification and interpreting the claims in light of the specification and it's the examiner's job.

[00:10:58] Speaker 01:
to apply the claim to the prior art as the examiner reads the scope of the claim.

[00:11:03] Speaker 04:
What I'm getting at here is, sorry to interrupt you, I know it's hard when we're on the phone, is that when you choose the word swab to describe your invention or what's to be used in your method here, it carries certain implications.

[00:11:22] Speaker 04:
And if you meant something other than swab,

[00:11:25] Speaker 04:
You could have used something else, like it appears they did in, what did you say, Grimmon.

[00:11:30] Speaker 04:
And so it seems to me that it's an impactful choice when you use the word swab.

[00:11:34] Speaker 04:
And if you're going to get around the plain and ordinary meaning of swab as being absorbent, then you have to have pretty clear like psychography and the specification.

[00:11:43] Speaker 04:
And I just don't see that here.

[00:11:45] Speaker 04:
I think at best it's ambiguous.

[00:11:48] Speaker 04:
And I would think you'd agree if it's ambiguous, then we do get to the extrinsic evidence as the district court judge did.

[00:11:57] Speaker 01:
Your Honor, thank you.

[00:12:01] Speaker 01:
Your Honor, my response to that is that even though a lay person might come to this specification with an understanding of what the term swab means to them, the intrinsic evidence in this case is clear that that is not what a person skilled in this art would come to this specification with.

[00:12:20] Speaker 01:
So when the author of this document, when Dr. Reinerson disclosed his invention,

[00:12:26] Speaker 01:
He wasn't a lay person who buys Q-tip brand swabs at CVS.

[00:12:31] Speaker 01:
He was a doctor who treats blepharitis with swabs ordered from a medical supply catalog.

[00:12:38] Speaker 01:
The record in this case demonstrates that both experts, Blef-X's experts and MIBO's experts agreed that not all swabs are absorbent.

[00:12:48] Speaker 01:
We have screenshots from medical supply catalogs that refer

[00:12:52] Speaker 01:
to non-absorbent swabs.

[00:12:54] Speaker 01:
We have descriptions of the materials used to make the swabs from the medical supply catalogs that refer to non-absorbent swabs.

[00:13:03] Speaker 01:
Just because a layperson would think swab means a cotton Q-tip, it does not mean that someone skilled in this art, and particularly a medical doctor who treats eyes, would have that same meaning.

[00:13:14] Speaker 02:
And in fact, the intrinsic evidence... So are you saying that the district... I'm sorry to interrupt, but are you saying that the district court here

[00:13:22] Speaker 02:
properly should have looked at extrinsic evidence.

[00:13:24] Speaker 02:
It just picked the wrong extrinsic evidence because there are medical instructions and manuals and other things that define a swab as including not absorbent.

[00:13:36] Speaker 02:
Is that your argument?

[00:13:37] Speaker 01:
Our argument, Your Honor, is that the district court didn't even need to get there because there were references in this case, and I would point to the Freeman reference, and we've put an image of that reference in our gray brief, refers to elements as swabs.

[00:13:51] Speaker 01:
says that they can be made of a non-absorbent material and uses them to contact the eyelids.

[00:13:56] Speaker 03:
Those are... So that may be, but putting aside the question of the intrinsic evidence, if the extrinsic evidence involves dictionaries, which uniformly define swab as made of absorbent material, how does the fact that there may be isolated references such as Freeman that use it differently fall that helpful to you?

[00:14:22] Speaker 01:
For two reasons, Your Honor.

[00:14:23] Speaker 01:
It's helpful because it's intrinsic evidence.

[00:14:26] Speaker 01:
And so it's more important than the extrinsic evidence.

[00:14:30] Speaker 01:
And it's also helpful, Your Honor, because if you consider what this construction is doing, this construction is limiting all swabs to absorbent swabs.

[00:14:41] Speaker 01:
And the intrinsic evidence, not the extrinsic evidence, the intrinsic evidence demonstrates that is not the case.

[00:14:48] Speaker 03:
And the extrinsic evidence... Well, how is agreement intrinsic evidence?

[00:14:52] Speaker 01:
Oh, because, Your Honor, it was cited in the patent.

[00:14:55] Speaker 01:
It was cited in the prosecution history.

[00:14:57] Speaker 01:
It is from the prosecution history.

[00:14:58] Speaker 01:
That makes it intrinsic evidence.

[00:15:00] Speaker 01:
But, Your Honor, even if we then turn to the extrinsic evidence, if we start with the experts who were talking about swabs in their field, both experts admitted that non-absorbent swabs exist, and the medical supply catalogs used to order swabs also demonstrate that non-absorbent swabs exist.

[00:15:19] Speaker 01:
only when you get to the dictionary that you find suggestions that swabs in general require absorbency.

[00:15:26] Speaker 01:
And even if every dictionary says absorbency for swabs generally, we still have to put a primary emphasis on the intrinsic evidence and the extrinsic evidence related to this specification.

[00:15:40] Speaker 01:
And all of that lines up in the same direction, that even if swabs are primarily, usually,

[00:15:48] Speaker 01:
absorbent.

[00:15:49] Speaker 01:
They are not all absorbent.

[00:15:50] Speaker 01:
There are non-absorbent swabs.

[00:15:52] Speaker 01:
And your honor, that is not disputed.

[00:15:56] Speaker 01:
And for that reason, we would say the district court erred.

[00:15:58] Speaker 01:
Thank you.

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

[00:16:01] Speaker 02:
We'll hear from the other side now.

[00:16:06] Speaker 05:
May it please the court.

[00:16:06] Speaker 05:
This is Jason Blackstone for PainPoint Medical Systems, DBA at Mido.

[00:16:11] Speaker 05:
I would like to start with the intrinsic evidence and then move to the extrinsic.

[00:16:14] Speaker 05:
And the first point is regarding the

[00:16:17] Speaker 05:
Claim differentiation argument that our council just made regarding the Claim 11 swab, it actually is described as a medical grade swab.

[00:16:27] Speaker 05:
And so I think that their intent to differentiate it is incorrect because there are other sponges given within the specification that can satisfy that and still be absorbent.

[00:16:37] Speaker 02:
Okay, I understand that.

[00:16:38] Speaker 02:
Let me ask you about the key sentence relied on by your friends on the other side, which is a column three.

[00:16:46] Speaker 02:
Why is that not sufficiently broad and clear to discount the fact that the embodiment is the only thing we're talking about and to support Mr. Kelly's argument that any material suitable for contacting the eye is covered under the definition of swab in this context?

[00:17:08] Speaker 05:
I think that the district court said it best when it said that, you know, the difference is what the swab is made of and what a swab is.

[00:17:15] Speaker 05:
you know, telling you that it can be made of certain materials doesn't tell you the characteristics of the swab.

[00:17:20] Speaker 05:
And I think it's clear from the extras and records that that's the correct way to look at it.

[00:17:24] Speaker 02:
Wait a minute.

[00:17:24] Speaker 02:
We're talking about here what it's made of.

[00:17:26] Speaker 02:
That's the central question in this case is what it's made of, whether it's absorbent or non-absorbent materials.

[00:17:33] Speaker 02:
So I don't really understand your answer.

[00:17:37] Speaker 05:
So an absorbent material can be, I guess a non-absorbent material can be made an absorbent material depending on the structure

[00:17:45] Speaker 05:
that it takes.

[00:17:47] Speaker 05:
So if you have a single thread, that would not be considered absorbent, but you weave it into a cloth fabric like a cotton gauze, then it becomes absorbent.

[00:17:58] Speaker 03:
Were you on the call when we discussed the rest of this column three and four?

[00:18:03] Speaker 03:
Did you listen?

[00:18:04] Speaker 05:
Yes, I was.

[00:18:06] Speaker 03:
Okay.

[00:18:07] Speaker 03:
Are you now agreeing

[00:18:10] Speaker 03:
that this one sentence at the bottom of three has to be read in isolation from the rest of the material at the top of column four?

[00:18:20] Speaker 03:
No, I'm not.

[00:18:28] Speaker 03:
So how do we read the specification?

[00:18:36] Speaker 05:
It seems to me that that sentence is linked to the discussion of the sponge and that it should be seen as soft, porous, and resilient.

[00:18:46] Speaker 02:
But the discussion, we're talking about an embodiment.

[00:18:48] Speaker 02:
We've got a numerous number of cases that talk about not limiting the invention to an embodiment disclosed.

[00:18:57] Speaker 02:
Column 4 is all about the embodiment.

[00:19:01] Speaker 02:
So what are we to make?

[00:19:02] Speaker 02:
of the sentence in column three that Judge Dyke and I have been talking about?

[00:19:13] Speaker 05:
So I think that that has to fit within the definition of a swab.

[00:19:18] Speaker 05:
And so when you say that it is a swab, that means that it is absorbent in its normal use.

[00:19:23] Speaker 05:
And so if you say they can be made of a material that can satisfy not harming the eye, that material also has to be absorbent.

[00:19:32] Speaker 05:
because it has to be subsumed within the definition of a swab.

[00:19:36] Speaker 05:
And they didn't make an exception and say, this is broader than a swab is.

[00:19:40] Speaker 05:
This is not an absorbent substance.

[00:19:42] Speaker 05:
They didn't do anything like that.

[00:19:43] Speaker 05:
They did not serve as their own lithographer with regard to the term swab.

[00:19:48] Speaker 05:
So it's a broad, it claims to be a broad definition.

[00:19:55] Speaker 05:
But when you look at it, it still has to fit within the parameters of a swab, which is absorbent.

[00:20:00] Speaker 02:
Can I ask you for a point of clarification?

[00:20:03] Speaker 02:
Mr. Kelly, at the end of his remarks, talked about the experts.

[00:20:06] Speaker 02:
And I think if I heard him correctly, was saying that both experts agreed that swabs could be absorbent and non-absorbent.

[00:20:14] Speaker 02:
I thought that the district court discounted the experts because they said different things.

[00:20:20] Speaker 02:
And so he just said, it's a draw.

[00:20:22] Speaker 02:
I'm not going to consider it.

[00:20:24] Speaker 02:
What is the reading of the expert testimony?

[00:20:27] Speaker 05:
So my reading makes for testimony is that Heim, during his deposition, it's Appendix 5157, said that some swabs could be non-absorbent, and then stated that the swabs cited by Dr. Donisville absorb oil.

[00:20:46] Speaker 05:
And then Dr. Kalman, in his rebuttal declaration, showed that,

[00:20:57] Speaker 05:
Swaps composed of hydrophilic, sorry, hydrophobic materials such as dacron or polyester can actually be absorbent.

[00:21:05] Speaker 05:
And when you look at the marketing disclosure, it's talking about the release of bacteria and not the absorption of fluids.

[00:21:14] Speaker 03:
But he seems in his deposition testimony to potentially have, to have contradicted his expert declaration.

[00:21:28] Speaker 05:
I'm sorry, which expert was that?

[00:21:30] Speaker 03:
Your expert.

[00:21:33] Speaker 03:
Are you talking about Mr. Heim?

[00:21:42] Speaker 05:
Hello?

[00:21:43] Speaker 05:
Yes, I'm sorry.

[00:21:44] Speaker 05:
Are you talking about Mr. Heim?

[00:21:45] Speaker 05:
I think if you look at the deposition testimony, he admits that there may be some swabs that are not absorbent, but then also says that the example that was provided by Dr. Donenfeld

[00:21:57] Speaker 05:
actually does absorb oil, which is one of the substances that the specification says should be picked up in column one around line 33 or 35.

[00:22:16] Speaker 03:
Well, he says here, this is on 5157,

[00:22:21] Speaker 03:
He says, I wouldn't characterize every swab as being absorbent.

[00:22:24] Speaker 03:
How's that consistent with his expert declaration where he says that swabs have to be absorbent?

[00:22:34] Speaker 05:
OK, I think the expert declaration that you're talking about is a different expert, too.

[00:22:40] Speaker 05:
The second expert we're talking about is Dr. Kalman, and the deposition is of Warren Hyme.

[00:22:47] Speaker 05:
So Dr. Kalman is the one that explains

[00:22:50] Speaker 05:
that the hydrophobic thread swabs can be absorbent.

[00:22:58] Speaker 05:
And Mr. Heim said that he thought there could be some swabs that were non-absorbent and then identified the one that was identified by Dr. Donizel as being absorbent of oils at least.

[00:23:12] Speaker 03:
Okay, so did Heim submit an expert declaration?

[00:23:15] Speaker 03:
He did.

[00:23:16] Speaker 03:
Did he address this question in the declaration?

[00:23:21] Speaker 05:
I do not remember.

[00:23:24] Speaker 05:
From the portion that we cited in the record, he does not address that.

[00:23:31] Speaker 03:
I see.

[00:23:39] Speaker 02:
Please continue.

[00:23:41] Speaker 05:
OK.

[00:23:41] Speaker 05:
And I would also like to, Mr. Kelly also referred to the Freeman reference multiple times as supporting a non-absorbent swab

[00:23:51] Speaker 05:
And when you look at the Freeman reference, it's actually a pair of forceps.

[00:23:58] Speaker 05:
It's not for cleaning the eye or performing actions that Shabo or Gilbert are.

[00:24:08] Speaker 05:
It's actually just to grasp the eye and potentially debris

[00:24:12] Speaker 05:
But it doesn't disclose grabbing degree.

[00:24:15] Speaker 05:
It just discloses grabbing the eyelid and manipulating it directly.

[00:24:19] Speaker 05:
So the necessity for an absorbent swab or the idea that is actually the same type of area seems fairly limited to me.

[00:24:35] Speaker 05:
And going to the Donenthal reference,

[00:24:42] Speaker 05:
The court directly said that it did not find Dr. Donatel to be credible because his reference to the Dacron swab referred to the description of the material making up the swab as the thread and not the swab itself.

[00:25:02] Speaker 05:
And Blefix has really not countered that with anything substantial.

[00:25:13] Speaker 02:
Anything further?

[00:25:20] Speaker 05:
The... So I'd also say that SHABO and Gilbert references are much closer.

[00:25:34] Speaker 05:
They actually involve cleansing of the eye.

[00:25:38] Speaker 05:
And they both disclose absorbing swabs.

[00:25:40] Speaker 05:
So when you see the references that are the closest to what is being used, they are directly showing that they need to be absorbent materials.

[00:25:51] Speaker 05:
And then when we turn to the dictionary definitions, these are not just broad dictionary definitions.

[00:25:59] Speaker 05:
Dr. Kalman, in his

[00:26:07] Speaker 05:
declaration showed that the Stedman definition was from the most prominent medical dictionary used in space.

[00:26:17] Speaker 05:
And then also that there was another definition that required absorbency from the dictionary of optometry and visual sciences.

[00:26:26] Speaker 05:
So this is not a situation where you have overly broad dictionary definitions that don't relate to the subject matter.

[00:26:32] Speaker 05:
These are on point and in line with the normal understanding of SWAB.

[00:26:37] Speaker 05:
as being absorbent.

[00:26:43] Speaker 05:
And I think with that, I will pass my time if there are no other questions.

[00:26:46] Speaker 05:
All right.

[00:26:47] Speaker 02:
Thank you.

[00:26:48] Speaker 02:
Thank you.

[00:26:49] Speaker 02:
Mr. Kelley, on the bottom.

[00:26:53] Speaker 01:
Thank you, Chief Judge Prost.

[00:26:54] Speaker 01:
I'd like to begin by directly addressing the distinction between Heim's deposition and his expert report, actually his expert declaration.

[00:27:05] Speaker 01:
So they are consistent.

[00:27:07] Speaker 01:
He's saying at the deposition that not all swabs are absorbent.

[00:27:11] Speaker 01:
And if you look to his expert declaration, and I'm referring now to the appendix at page 4641, his position is not that it's the word swab that gets him to absorbency in this case.

[00:27:25] Speaker 01:
What Heim is saying in his declaration is that

[00:27:29] Speaker 01:
When he reads the 718 patent, he doesn't think that what happens in the 718 patent could be done with anything other than absorbent swabs.

[00:27:38] Speaker 01:
And you see this in paragraph 68.

[00:27:40] Speaker 01:
He says, a person of ordinary skill in the art would not have understood that only absorbent swabs may absorb the liquid solution that aids in the removing of the debris.

[00:27:49] Speaker 01:
So even Maibo's witness is not saying that swab is absorbent because that's what swab means.

[00:27:59] Speaker 01:
He's saying SWAB is absorbent because it has to be absorbent in the context of the 718 patent.

[00:28:06] Speaker 01:
And that leads me to my second.

[00:28:07] Speaker 03:
The other expert said the general definite, relied on the general definition, right?

[00:28:13] Speaker 01:
Yeah.

[00:28:14] Speaker 01:
He referred to the general definition of the word SWAB.

[00:28:17] Speaker 01:
But what's important is the definition of the word SWAB in this field.

[00:28:22] Speaker 01:
Heim says it doesn't have to be absorbent.

[00:28:24] Speaker 01:
We have intrinsic evidence that shows it's not absorbent.

[00:28:28] Speaker 01:
And when it comes to the function of this invention, the function is a physical impacting of things on the eye.

[00:28:37] Speaker 01:
The swab rotates, it vibrates, it reciprocates so that it can break, scrub, exfoliate, buff.

[00:28:44] Speaker 01:
Its movement is at a speed sufficient to remove debris.

[00:28:48] Speaker 01:
This is not like debris floating in the eye.

[00:28:51] Speaker 01:
This is debris that is affixed to the eyelid margin that home care cannot remove.

[00:28:57] Speaker 01:
The invention here

[00:28:58] Speaker 01:
is something that impacts that debris to kind of scrub it off the eyelid.

[00:29:05] Speaker 01:
That's not an absorbency issue.

[00:29:07] Speaker 01:
That's an impact issue.

[00:29:08] Speaker 01:
That's a scrubbing issue.

[00:29:10] Speaker 01:
Nothing about the 718 patent requires absorbency.

[00:29:17] Speaker 01:
Mr. Blackstone just referred to absorbency.

[00:29:19] Speaker 01:
The declarant referred to absorbency.

[00:29:22] Speaker 01:
And that's just not a part of this patent.

[00:29:24] Speaker 01:
That's not a part of the removal procedure.

[00:29:27] Speaker 01:
I think I'm out of time.

[00:29:29] Speaker 01:
I will leave it at that.

[00:29:31] Speaker 02:
Thank you.

[00:29:34] Speaker 02:
We thank both sides and the case is submitted.

[00:29:37] Speaker 02:
Thank you.