[00:00:00] Speaker 04:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

[00:00:15] Speaker 02:
Good morning, everyone.

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The first argued case this morning, number 20, 1203, Edgewell Personal Care Brands against Munchkin Incorporated.

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Mr. Bradley, proceed.

[00:00:29] Speaker 00:
Good morning, Your Honors, and may it please the Court.

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For both the 420 patent and the 029 patent, the District Court erred in its claim construction rulings.

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And those errors resulted in the Court improperly granting summary judgment of non-infringement.

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The claim constructions were wrong.

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The Court narrowed the terms in ways that are not supported by the intrinsic record.

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The 420 patent claims a cassette with a clearance.

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The clearance is a space

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the space is configured to prevent interference between the cassette and another structure such as a pail.

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The district court originally construed it that way and got it right.

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The PTAB in denying institution of Bunchkin's IPR construed it the same way and also had it right.

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And perhaps most importantly, the specification describes it in that exact way.

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The embodiments disclosed in the specification make very clear

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and the sporting description makes also clear that the clearance is a space that prevents interference with another structure.

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In Figure 1 of the 420 patent, the movable member 58 is allowed to move precisely because the cassette has that clearance space that allows it to move.

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In another embodiment, Figure 7, the clearance space

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allows the member, the interfering member of the pale to complement that interfering space, excuse me, to complement that clearance space, allowing them to mesh perfectly well together.

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That's what the clearance is.

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The problem is, on summary judgment, the district court shifted that meaning.

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Instead of requiring a space that prevents interference between a cassette and a pale, on summary judgment, the district court

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now required that there be a space between the cassette and another structure such as a pale.

[00:02:32] Speaker 01:
The patent doesn't help that.

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Council, this is Judge Moore.

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I tend to agree with you that the district court's claim construction changed in response to sort of its realization that after claim construction, the parties still had to dispute over the word clearance.

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And I likewise tend to agree with you that the new construction excludes Figure 7.

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One thing that Munchkin argues that I'd like you to address is whether during prosecution history you took action to make clear that you were in fact excluding Figure 7.

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Your Honor, there was nothing that happened during prosecution that impacted the inclusion of Figure 7.

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The only thing that Munchkin points to is the divisional application that preceded the one that issued us the 420 patent.

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In that divisional application, the claims were directed to a cassette with this clearance, but also were directed to the interfering member with the pail.

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The claims covered both the cassette and the pail and specifically claimed the pail

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with the interfering member embodiment as shown in Figure 7.

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The language that Munchkin points to has nothing to do with the cassette.

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The language that Munchkin points to during prosecution is where the examiner said that the pale shown in Figure 1 is different than the pale shown in Figure 7.

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The examiner made clear that the pale shown in Figure 7 is the only one that has the interfering member.

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And it was that discussion where the applicant ended up, excuse me, the examiner ended up saying that the figure one embodiment was movable portion 58, quote, appears to have nothing to do with, close quote, the embodiment of figure seven.

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And in that regard, the examiner was exactly right.

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The interfering member in figure seven, which is part of the pale, is indeed different than the pale structure

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in Figure 1.

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None of that impacted the cassette.

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The 420 patent is directed to and claims the cassette and the clearance.

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And that clearance in the cassette works equally well with both Figure 1 and with Figure 7, with both of those embodiments.

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Nothing happened during prosecution that restricted that.

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And the district court still nonetheless

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eliminated the Figure 7 embodiment from the scope of the claims through this requirement that's not described in the specification where the judge required a space between the cassette and the pail.

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That's not what the figures show.

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That's not what the specification describes.

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In fact, the judge explained that if you have a pail that takes up the clearance space or fills that clearance space or replaces the space that was otherwise there,

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The judge says, well, all of a sudden now you didn't have a clearance space after all.

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Respectfully to the district court judge, that makes no sense.

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It's akin to saying, if I may use an analogy, that there's a parking space.

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The parking space allows a car to come and park.

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It prevents interference between the car and some other structure that might be in the parking space.

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Under the judge's new construction, the judge says, no, there has to be a space

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between the tires on the car and the asphalt of the parking space.

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That's not what the space is talking about in the 420 patent.

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The clearance space in the 420 patent is talking about a space that precisely allows another structure to come in and be a complementary fit to prevent interference.

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And the whole reason...

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Is it your position that the pail is not claimed and therefore shouldn't have been part of what impacted the judge's decision on claim construction?

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The pail is indeed not claimed.

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It's not part of the claims.

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Now, the judge originally construed clearance to be configured to prevent interference between a cassette and another structure, such as a pail.

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That's the same as the PTAB.

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ruling and essentially the same as well.

[00:07:04] Speaker 01:
Yes?

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This is Morgan.

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Is it correct to say the claims are only directed to the diaper cassette and that they can contain a clearance even before it's installed in a pail?

[00:07:17] Speaker 00:
Yes, Your Honor, absolutely.

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The clearance can be discerned simply by looking at the cassette and reading claim one in light of the specification.

[00:07:26] Speaker 00:
Claim one talks about a clearance

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But the word clearance doesn't do all the work by itself.

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The word clearance is described further in the claim, and that's at APPX 120.

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I'm looking at claim one.

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And it says the clearance is in a bottom portion of the central opening of the cassette.

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It says the clearance delimits a portion of the volume that has a reduced width relative to the portion of the volume above it and has other descriptors as well.

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Other claims say that the clearance is in the shape of a chamfer.

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Another claim says it's entirely located in a bottom half of the annular wall.

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The claims make clear that the clearance can be just discerned and determined simply by looking at the cassette and looking at it under a proper construction.

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The district court on summary judgment erred in reconstruing the term and construing it a term that's not consistent with the intrinsic record and improperly granting summary judgment on that basis.

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Mr. Bradley, this is Judge Hughes.

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Can you help me with the drawings a little bit?

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I think I follow you, but I just want to be clear.

[00:08:36] Speaker 04:
I'm looking at Figures J, Figure 7.

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It's on page 16 of your brief.

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It's the one that has interfering marked in green.

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Is that interfering member is actual structure that the cassette rests down onto, that little green triangle?

[00:08:54] Speaker 00:
Yes, Your Honor.

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The green triangle on page 16 of the blue brief

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is as part of the pale.

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So I have here in my office a pale.

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And the green portion is what we've highlighted in green is a physical portion of the pale that sticks up.

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And the whole purpose of it is if you were to take that same cassette shown on page 16 and flip it upside down, that interfering member on the pale would cause the cassette to rise up above

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the top of the tail and the parapets.

[00:09:30] Speaker 04:
Okay.

[00:09:30] Speaker 04:
Can you then look, I guess, back a page in your brief at page 15 at figure one, and you've got a red triangle marked down there, and it looks like something is coming through that.

[00:09:40] Speaker 04:
Is this just a different structure?

[00:09:43] Speaker 04:
I'm just having a hard time following that.

[00:09:46] Speaker 00:
Yes, Your Honor.

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This is a figure one and figure three embodiment.

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It's the same in both figures one and three.

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which is a different pale structure than the one we were just looking at.

[00:10:00] Speaker 00:
The cassette is identical.

[00:10:02] Speaker 04:
And I think you, I heard you tell Judge Moore that this isn't about the pale, it's just about the structure.

[00:10:09] Speaker 04:
Does this mean these new style cassettes with the clear might work in the old style pales that didn't have inter-member, but that's all kind of irrelevant?

[00:10:20] Speaker 04:
What's important for clearance claim is,

[00:10:24] Speaker 04:
it's a new style cassette that if installed in the pail with the interfering member is only one correct way.

[00:10:35] Speaker 00:
That's correct, Your Honor.

[00:10:36] Speaker 00:
The new style cassettes with the clearance, including both Edgewell's product and the Munchkin products that admittedly are designed to work with our pails, most of them would accommodate

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and work with the pale structure shown in figure seven.

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That's how they actually are in the real world.

[00:10:57] Speaker 00:
Another option that the patent discusses is this figure one slash figure three embodiment, which is a different pale structure.

[00:11:04] Speaker 00:
I did want to, if I may, switch and talk a little bit about the 029 patent because the district court there as well got the claim construction wrong.

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The claim describes an annular cover for the cassette.

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And it says the annular cover is, quote, having an inner portion and a top portion, including a tear-off outwardly projecting section.

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That's what the claim talks about.

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Now, the judge during claim construction said that all three of those parts of the cover have to be, quote, a single structure, quote, a single component, quote, a single piece.

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The problem is,

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The specification nowhere says that.

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The claims don't say it.

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The specification doesn't say it.

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The prosecution history doesn't say it.

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And the judge used that construction to exclude, on summary judgment no less, exclude Munchkin's accused cassettes simply because their annular cover, the one that absolutely has an inner portion and a top portion and a tear-away section, he said on summary judgment, those are excluded simply because they're formed from two pieces.

[00:12:18] Speaker 00:
rather than being a single piece.

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But the claims and the spec and the prosecution history never require it to be a single piece.

[00:12:26] Speaker 00:
There has been no disavowing statements.

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Certainly no disavowing statements that are so clear and deliberate and unmistakable that they evidence... And I see that I'm into my... Continue your thought, Mr. Bradley.

[00:12:41] Speaker 00:
Thank you, Your Honor.

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There is no disavowing statement anywhere in the record.

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The examiner did not come forward and say, hey, here's a two-part cover in the prior art.

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And we said, oh, no, ours is a single cover.

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That never happened, nothing like it.

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And there is no disclaimer.

[00:13:01] Speaker 00:
We've also raised in our briefs the term engage, but I would like to reserve the rest of my time.

[00:13:06] Speaker 02:
OK, any more questions for Mr. Bradley at this stage?

[00:13:11] Speaker 02:
On the panel?

[00:13:12] Speaker 02:
All right, hearing none.

[00:13:14] Speaker 02:
We'll hear from the other side, Mr. McAllen.

[00:13:18] Speaker 03:
Thank you, Your Honors.

[00:13:20] Speaker 03:
May it please the court.

[00:13:22] Speaker 03:
This is really, in regards to the 420 patent, a very straightforward case.

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To have a clearance, two things must be clear of each other and not touch.

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And so the space between two things is the very essence of clearance.

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Now, that was the district court's conception of the clearance from the very beginning.

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And that's why the court included the language configured to prevent interference

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into the construction.

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And what's going on is Edgewell now wants to ignore the configured to prevent interference language under the guise of arguing a reinterpretation.

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And there was no reinterpretation here, and we know that for a couple of reasons.

[00:14:03] Speaker 03:
If you go back to the district court's original construction, the district court's analysis of the intrinsic record makes clear that the court believed that the clearance is one, a space, two, adjacent to the annular wall,

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and three, configured to prevent interference between the annual wall and another structure.

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Now, in making that conclusion, the Court recited the concepts described by this disclosure are depicted in Figure 1.

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That's at APPX 24.

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The Court also quoted the purpose of the clearance in Figure 1 in saying that the purpose of the clearance is to allow the closing mechanism 58

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of the device to properly function by creating space for this mechanism to move through.

[00:14:48] Speaker 03:
Now picking up on Judge Hughes' question, if you want to look at page 15 of the blue brief, this is depicted there where the mechanism 58, which is pulled out in a highlight and yellowed, that structure of the pale, that is another structure, that is another structure that the parties have agreed is another structure in this case, and it moves along that dotted line path.

[00:15:13] Speaker 03:
And the point is, is that that structure 58 cannot touch the cassette.

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There must be clearance or space between 58 and the cassette.

[00:15:23] Speaker 03:
Otherwise, as the patent explicitly says, and this is at 638 through 40, if the chamfer clearance were not provided, the cassette would impede the movement of movable portion 58.

[00:15:34] Speaker 03:
The whole point is not to impede the movement of movable portion 58.

[00:15:40] Speaker 03:
So from that analysis alone, we know that the district court is conceiving of a clearance as, in essence, a buffer space, a space that separates the annular wall from another structure.

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And when that space disappears, there's no more separation.

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You have interference.

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You have contact.

[00:15:57] Speaker 03:
You have interference.

[00:16:00] Speaker 01:
Council, this is Judge Moore.

[00:16:03] Speaker 01:
Is it fair to say the original construction didn't require space?

[00:16:08] Speaker 01:
between the structures when the cassette was installed in the pail?

[00:16:13] Speaker 03:
No, I think it does require that the court's original construction, given the configured to prevent interference language, requires that there be space between the annular wall and another structure.

[00:16:26] Speaker 03:
That's the essence of clearance.

[00:16:28] Speaker 03:
That annular wall has to be clear of any other structure.

[00:16:32] Speaker 01:
There had to be clearance to prevent interference between the cassette and another structure.

[00:16:36] Speaker 01:
Is that right?

[00:16:38] Speaker 03:
Correct.

[00:16:38] Speaker 03:
That angled annular wall, there must be clearance between that wall and another structure.

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In other words, there must be space between that wall and another structure.

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And we know that even further because of the very critical analogy.

[00:16:58] Speaker 01:
But what I'm struggling with is the idea that there has to be space between the structures when the cassette is then installed in the pail.

[00:17:08] Speaker 01:
Because the claims don't speak to the pale at all.

[00:17:11] Speaker 01:
They don't cover the pale.

[00:17:12] Speaker 01:
So there has to, the space that is required has to exist between the cassette and another structure.

[00:17:19] Speaker 01:
But then when the cassette is installed in the pale, why are we now infusing that space into that location when pale is not part of the land construction?

[00:17:31] Speaker 03:
Well, so again, our position is, and this is clear from the language of the construction, that

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The another structure is a structure in the pale and the party did not dispute that below.

[00:17:44] Speaker 03:
In fact, as well, affirmatively stipulated to that point below.

[00:17:49] Speaker 03:
So this claim is was construed in a functional way in relation to a structure that is outside the cassette and as well may have a problem with that.

[00:18:02] Speaker 03:
But the problem goes to the configured to prevent interference with another structure language, which again is part of the court's original construction.

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And so the point here is that as well cannot agree that the configured to prevent interference language is correct and then go back and pretend that it doesn't mean precisely what it actually means and to more specifically answer your question.

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You cannot know whether the clearance is configured to prevent interference with another structure unless you insert the cassette in the pail.

[00:18:33] Speaker 03:
And the district court actually recognized that fact because Edgewell made the same argument below.

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And the court said, well, if you're just going to hold the cassette in your hand in the abstract away from the pail, then it's true that every single cassette in the universe

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has that space.

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You can't know that it's configured to prevent interference between another structure until you actually put it in relation to another structure.

[00:18:58] Speaker 03:
And on that point, I want to highlight one other thing that counsel said during his argument.

[00:19:02] Speaker 03:
He said that the clearance can be discerned simply by looking at the cassette.

[00:19:08] Speaker 03:
And what's notable about that is that is directly contrary to Edgewell's arguments below.

[00:19:14] Speaker 03:
Edgewell's expert below took the position

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that the test for interference is, quote, whether the cassette can function properly in the pail.

[00:19:24] Speaker 03:
That's at APPX 3550.

[00:19:25] Speaker 03:
Edgewell knew below that you had to put this thing in the pail to determine whether there was clearance.

[00:19:32] Speaker 03:
That, again, is highlighted by the fact that in responding to one of Munchkin's primary prior art references, which is the European community design reference,

[00:19:43] Speaker 03:
that is essentially identical to the 420 patent and depicts simply the cassette.

[00:19:48] Speaker 03:
It doesn't depict the pail, it just depicts the cassette.

[00:19:51] Speaker 03:
Well, in that case, Aswell argued that, quote, that registration simply depicts the cassette itself and lacks a disclosure regarding, quote, how the cassette works or what it is to be used in, end quote, and it therefore concluded that that registration did not depict a cassette, all right, sorry,

[00:20:11] Speaker 03:
quote, a clearance as construed by the court, end quote.

[00:20:15] Speaker 03:
That's at APPX 4318.

[00:20:18] Speaker 03:
So it is simply not the case that Edgewell below argued that the cassette could be discerned simply by looking at the cassette.

[00:20:24] Speaker 03:
They've changed that position.

[00:20:26] Speaker 03:
They've changed that position because they need to try now to get around the configured to prevent interference language.

[00:20:33] Speaker 03:
And I want to highlight one other thing.

[00:20:35] Speaker 04:
Sorry, can I interrupt here?

[00:20:36] Speaker 04:
This is Judge Hughes.

[00:20:37] Speaker 04:
I want to ask you about these drawings, too, and see if you can explain them to me.

[00:20:41] Speaker 04:
I suspect you have a different view.

[00:20:43] Speaker 04:
I'm looking at the ones on page... I'm back on page 14 and 15 of the blue brief, which has the yellow thing, which is 58.

[00:20:53] Speaker 04:
I'm not sure what that exactly is.

[00:20:56] Speaker 04:
Is it your view that structure 58 won't work at all

[00:21:05] Speaker 04:
the cassette touches it or rests against it?

[00:21:08] Speaker 03:
That's correct, Your Honor.

[00:21:10] Speaker 04:
And that's why the patent... And where in the record or the patent or anything like that suggests that it won't work if it touches it.

[00:21:19] Speaker 04:
Because it seems pretty clear that if we're looking at Figure 7, that it will work even though it's resting on the specific interfering member.

[00:21:28] Speaker 03:
Yeah.

[00:21:29] Speaker 03:
And so the patent at 638 through 40

[00:21:33] Speaker 03:
says, if the chamfer clearance were not provided, the cassette 30 would impede the movement of the movable portion 58.

[00:21:40] Speaker 04:
Well, wait, wait, wait.

[00:21:43] Speaker 04:
Can I stop you there?

[00:21:44] Speaker 04:
Because I'm not sure that I understand what you're saying.

[00:21:48] Speaker 04:
I mean, if that shows just touching, we'll do it.

[00:21:50] Speaker 04:
Or if it's the old style cassettes that don't have any kind of cutout at all.

[00:21:56] Speaker 04:
And that seems to me to be two different things.

[00:21:58] Speaker 04:
If it's fully squared off instead of having this triangle cut out, it might completely impede 58.

[00:22:04] Speaker 04:
But if it's just punching, you know, one tip of 58 but still allows that diagonal movement, then it would work.

[00:22:13] Speaker 03:
The problem here, Your Honor, is that the only possible way to give this claim any sort of ascertainable scope whatsoever

[00:22:21] Speaker 03:
is to equate interference with contact.

[00:22:24] Speaker 03:
That is the only possible way that any of this makes sense.

[00:22:28] Speaker 03:
Otherwise, I've got a situation where I can put it in the pail and it can touch.

[00:22:34] Speaker 03:
I can put it in the pail and it cannot touch.

[00:22:36] Speaker 03:
I can put it in the pail and it can graze against, or I can put it in the pail and it can completely impact.

[00:22:43] Speaker 04:
Well, I just don't understand why it has to be

[00:22:47] Speaker 04:
actual space rather than just touching but still allowing it to work, particularly given the whole point of this, which is so that you don't put the cassette in upside down.

[00:23:00] Speaker 03:
Let me give you one more reference, Your Honor.

[00:23:05] Speaker 03:
And this is at 635.

[00:23:07] Speaker 03:
It's right next to the other passage that I gave you in the 420 patent.

[00:23:11] Speaker 03:
It says a passive movement of the movable portion 58 is illustrated at B.

[00:23:16] Speaker 03:
It is observed that the movable portion 58 passes closely to the wall defining the chamfer clearance.

[00:23:22] Speaker 03:
If the chamfer clearance were not provided, the cassette would impede the movement of the movable portion 58.

[00:23:27] Speaker 03:
And again, the point here is that you can't have a cassette that both prevents interference and allows interference.

[00:23:36] Speaker 03:
And that's exactly what a construction, the construction that Edgewell is urging right now.

[00:23:43] Speaker 03:
There's just no simple way to to put any limits on the scope of the clearance.

[00:23:51] Speaker 03:
Otherwise, and I think I heard Council say that

[00:23:53] Speaker 03:
You know, the cassette would sit too high in the pail if the clearance didn't match up perfectly under the Figure 7 embodiment.

[00:24:01] Speaker 03:
Well, the problem there is that the clearance is not directly correlated with any sort of fit inside the pail.

[00:24:09] Speaker 03:
I can craft a clearance, an angled wall, and more specifically an angled wall on the bottom half of that clearance, at any number of angles and make them fit.

[00:24:18] Speaker 03:
I can shallow the angle, I can steepen the angle, I can cut off the top, I can just make the cassette a little shorter, and I can make it fit in the pail.

[00:24:26] Speaker 03:
So the clearance doesn't have any direct correlation on how the cassette actually fits inside the pail.

[00:24:33] Speaker 03:
And again, that's one of the big holes in Edgewell's position is that this would just swallow, it would completely swallow.

[00:24:41] Speaker 04:
That sounds to me like almost like an indefiniteness argument about clearance rather than

[00:24:47] Speaker 04:
reading the term in light of the specification and the purpose of making it not be inserted upside down.

[00:24:54] Speaker 04:
I get that there's a bunch of different ways you could craft that cutout to make it fit and make sure you're putting it right side up, but that doesn't mean that it can't touch.

[00:25:07] Speaker 04:
It just can't, it has to fit in there in a way that'll make the pail work.

[00:25:12] Speaker 03:
I guess we would ask, you know, what is, and it's conspicuous that Edgewell on appeal never argues that the accused cassettes actually do prevent interference between the annual wall and the pale.

[00:25:23] Speaker 03:
And there's just, again, it gets back to the problem that the real problem, if to the extent Edgewell has one with this construction, is the configured to prevent interference language.

[00:25:35] Speaker 03:
Because you cannot square that language both with the purpose of the clearance in 51

[00:25:41] Speaker 03:
and with the purpose of the clearance, I'm sorry, the purpose of the clearance in Figure 1 and the purpose of the clearance in Figure 7.

[00:25:48] Speaker 03:
And that was the point of the prosecution history.

[00:25:51] Speaker 03:
Again, because this is claimed functionally in relation to a structure in the pale, the PTO specifically recognized that the function of the clearance in the Figure 1 embodiment is completely different from the function of the clearance in the Figure 7 embodiment.

[00:26:07] Speaker 03:
Those two things are mutually exclusive.

[00:26:09] Speaker 03:
They serve two completely different purposes.

[00:26:12] Speaker 03:
One, the figure one embodiment, is really about a clearance that creates space between two structures.

[00:26:18] Speaker 03:
The other is actually less about space at all.

[00:26:21] Speaker 03:
It's more about structure and making two shapes complementary to one another.

[00:26:26] Speaker 03:
They're just two completely different things.

[00:26:28] Speaker 03:
And if you want to have them under the same umbrella,

[00:26:31] Speaker 03:
Again, our position is there's no proper construction that would put those two constructions together, those two embodiments together.

[00:26:40] Speaker 03:
But to the extent you want to try to amalgamate those two embodiments and have them fall under a single construction, you have to get rid of the configured to prevent interference language.

[00:26:50] Speaker 03:
And Edgewell is not challenging that language on appeal, and that's the entire problem.

[00:26:58] Speaker 03:
And I guess quickly,

[00:27:00] Speaker 03:
I'd like to maybe address the 029 patent while I have a bit of time.

[00:27:07] Speaker 03:
In terms of the intrinsic record and the support for the Court's construction, our position is the claims make that clear themselves, but also the specification at 259-362.

[00:27:18] Speaker 03:
This is quoted by the District Court in its construction.

[00:27:23] Speaker 03:
The Outwardly Projecting Section 28 has an area 40 of reduced section connecting it to the top area 27A,

[00:27:30] Speaker 03:
to weaken the material and allow it to be torn off.

[00:27:33] Speaker 03:
That's really the crux of the matter.

[00:27:34] Speaker 03:
This is like a tear off tab on a milk jug.

[00:27:38] Speaker 03:
This is not something where shrink wrap goes over the top of a different cover and you can call that a tear off.

[00:27:45] Speaker 03:
The very essence of the tear off is that you tear it off from the cover itself.

[00:27:49] Speaker 03:
And that's well supported in the intrinsic record.

[00:27:52] Speaker 03:
Lastly, on the doctrine of equivalence issue, in terms of the case law, our position is

[00:27:58] Speaker 03:
you know, limitations that specifically recite the relationships of components to one another, those limitations must have equivalence.

[00:28:06] Speaker 03:
And in this case, we have a construed claim that requires and recites a specific relationship between components, specifically that the components of a single cover be made of the, quote, same structure.

[00:28:20] Speaker 03:
And you simply can't have an equivalent of that

[00:28:24] Speaker 03:
in a different structure.

[00:28:25] Speaker 03:
It's literally the opposite.

[00:28:27] Speaker 03:
And I see I'm at the end of my time.

[00:28:28] Speaker 03:
So if we have no further questions, I will end my argument.

[00:28:32] Speaker 02:
Any more questions for Mr. McCallum?

[00:28:36] Speaker 02:
All right.

[00:28:37] Speaker 02:
Thank you.

[00:28:37] Speaker 02:
And Mr. Bradley, you have your rebuttal time.

[00:28:43] Speaker 00:
Thank you, Your Honor.

[00:28:44] Speaker 00:
I'll go back to the 420 patent and that discussion.

[00:28:48] Speaker 00:
And my colleague across the aisle said that the function of the clearance

[00:28:53] Speaker 00:
and their view is different between Figure 1 and Figure 7.

[00:28:58] Speaker 00:
Respectfully, I disagree.

[00:29:00] Speaker 00:
I do not understand that position at all.

[00:29:02] Speaker 00:
The clearance and the cassettes is exactly the same.

[00:29:06] Speaker 00:
I have a cassette here in my office.

[00:29:08] Speaker 00:
I'm holding it up.

[00:29:09] Speaker 00:
I can see the clearance, and it works equally well in multiple pale embodiments, including the embodiment of Figure 1 and including the embodiment of Figure 7.

[00:29:20] Speaker 00:
It sounds like at least Judge Hughes has the blue brief in front of his honor.

[00:29:25] Speaker 00:
On page 10 of the blue brief, we have depicted the original design clearance by both Edgewell and Munchkin, and side by side with the cassette that has a clearance.

[00:29:39] Speaker 00:
And I might have just misspoken.

[00:29:40] Speaker 00:
There is the original cassette design without a clearance, side by side with the redesign with a clearance.

[00:29:46] Speaker 00:
And as can be seen on figure 10,

[00:29:50] Speaker 00:
One can tell simply from the cassette itself whether there is a space that is configured to prevent interference between the wall of the cassette and another structure such as the pale.

[00:30:03] Speaker 00:
As I mentioned in my opening argument, the claim, for example, claim one, goes on to explain more information about what that clearance does, how it's configured, how it's positioned.

[00:30:16] Speaker 00:
It says that the clearance is in the bottom portion of the central opening of the cassette.

[00:30:21] Speaker 00:
It explains that it delimits a portion of the volume that has a reduced width relative to the volume above it.

[00:30:29] Speaker 00:
It claims some of them describe the clearance as being in the shape of a chamfer.

[00:30:36] Speaker 00:
All of these make clear that the cassette itself has this clearance space.

[00:30:42] Speaker 00:
Sure, its purpose is to prevent interference.

[00:30:46] Speaker 00:
There is no discussion at all of having a space between a member of the pale and the cassette.

[00:30:56] Speaker 00:
The phrase, graze against, came up during my colleague's argument.

[00:31:02] Speaker 00:
Indeed, in figure one, that movable member in yellow, that movable member, very well may graze against the cassette.

[00:31:13] Speaker 00:
If the cassette were up, if I may finish.

[00:31:15] Speaker 02:
Let's finish your thought, please.

[00:31:17] Speaker 00:
The point is, if the cassette were like the old design, where it's fully squared off, or, for example, if it were upside down, where it's fully squared off, there is no clearance on that side of the cassette, and it would not work.

[00:31:30] Speaker 00:
But the clearance is there, the specification supports what the district court originally held, and that construction ought to be re-put in place, and summary judgment vacated or reversed.

[00:31:41] Speaker 00:
Thank you, Your Honors.

[00:31:42] Speaker 02:
Any more questions for Mr. Bradley?

[00:31:47] Speaker 02:
All right.

[00:31:47] Speaker 02:
Hearing none, our thanks to both councils.

[00:31:50] Speaker 02:
The case is submitted.

[00:31:51] Speaker 02:
That concludes this panel's argued cases for this morning.

[00:31:58] Speaker 04:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.