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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 its honorable court.

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Okay, good morning.

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This is Judge Chen, and today we have just one argued case, appeal number 19-1878, Exmark Manufacturing Company versus Briggs and Stratton Corp.

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Given that we only have one argued case today, I think what I'd like to do is give both sides, instead of 15 minutes, 17 minutes so that when Mr. Wolf leads off, I'd like to change the time so he has 13 minutes of an opening and then keeps four minutes of rebuttal.

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And then likewise, Mr. Vandenberg, if he needs it, can use 17 minutes, and that way,

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Given all the potential for crosstalk, we can ensure that everyone has a full opportunity to be heard today.

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Mr. Wolfe, whenever you're ready, please begin.

[00:01:08] Speaker 02:
Thank you, Your Honor, and good morning.

[00:01:10] Speaker 02:
This is Matt Wolfe for Briggs.

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For the district court to find the sole asserted claim valid as a matter of summary judgment required both a counterfactual assessment of the simplicity prior Art Miller

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and a constantly shifting claim construction.

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Putting aside the Markman issues for the moment, a jury could plainly find that Simplicity does have both a baffle and a discharge opening.

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As to the first, the district court incorrectly found that the Simplicity baffle, excuse me, Simplicity did not have baffles because the steel in question was not spaced apart from the mower and did not have a meaningful effect on air and grass flow.

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These requirements are not part of the claims, but even if they were, Simplicity, in fact, has them.

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Simplicity's baffle is an entirely separate structure from the front wall.

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It is bolted into the mower after manufacture and spaced from the front wall by rubber deflectors.

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Exmark concedes that the baffles control the flow of air and grass by the V-shaped elements, the three V-shaped elements visible from the pictures.

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Moreover, the baffles extend lower to the ground than the front wall.

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And as a result of the tab structure, they jut out horizontally at the bottom from the front wall to further control air above and beyond what the deck alone would do.

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And by the way, simplicity itself referred to the structure as baffles in its specifications.

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Mr. Wolf, this is Judge Chen.

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Yes, Your Honor.

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Is it your view that, um,

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If the simplicity baffle was nothing more than a very thin metal plate that was mounted against the front wall and didn't hang lower or anything else like that, is just a very thin flat plate, in your view, would that satisfy the limitation of a first flow control baffle?

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The answer is yes.

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And that's in part because the specification specifically says that the baffle and the wall can be one and the same.

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Now the claims call for a separate baffle, so you would need a separate piece of metal.

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So the answer would be yes, Your Honor, but of course that's not what we have here.

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There are, it is spaced apart, as I said, the V-shaped structure.

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But could you explain, I'm sorry, could you explain why we should,

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In your view, understand nothing more than a flat plate mounted all along the front wall to count as a flow control baffle.

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If in that situation, the baffle is doing nothing more than what the front wall would do without any mounting plate sitting there.

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Your Honor, I understand your question, and I understand why my answer may be counterintuitive.

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And it's really driven by the specification, which says that A240, quote, back wall 36 may be eliminated with the flow control baffle 68 forming the back wall of the mower deck.

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So I think what the specification is saying there is that the baffle is what affects the flow of air.

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it can be one and the same thing as a wall.

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And so the logic would extend.

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And again, we don't need to go this far for purposes of this appeal.

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So I don't think we're arguing that any of this is necessary for you to find a fact question for purposes of the jury.

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But the logic of the specification is as long as you have a separate structure, as long as it is in between the blades and the front wall,

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that it doesn't matter whether it conforms to that front wall, it can still serve as a baffle.

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That's the best answer I can give you to that.

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I don't want to say counterfactual, but that hypothetical situation.

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And that's, I think, definitional based on the specification.

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Mr. Wolf, this is Judge Lynn.

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What do you think the claim construction was that the district court adopted, the initial

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claim construction that the parties agreed to, or the meaningful effect and spaced away limitations that were discussed later?

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Your Honor, that's a great question.

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Expressly, what it adopted was a structure within the walls of the mower deck that controls the flow of air and grass clippings.

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That's what would have appeared, presumably, in any jury instructions after closing arguments.

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But those constructions, that construction was then further construed by His Honor and said that implicit or carried with that was the meaningful effect and the space to part limitation.

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And not just meaningful effect and space to part, but meaningful effect and space to part for the entire length of the baffle.

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And this is why I was pushing back a little bit on Judge Chen's hypothetical because

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there is no doubt that the V-shaped structures that jut into the Moordeck area, that those satisfy even the implicit elements of his honors construction.

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But the reason that didn't... Sorry, I'm sorry.

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Just to confirm, my understanding, my recollection was that the district court on remand expressly rejected any notion of relying on

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some meaningful effect consideration with the claim construction, but he did appear to contemplate that there was some kind of separation requirement that was needed between the front wall and the baffle.

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Am I wrong about the meaningful effect part?

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Respectfully, I believe you are, Your Honor.

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Appendix 42, the last sentence of the first full paragraph,

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His Honor writes, the concept of a meaningful effect is subsumed within the notion of control of the flow of clippings.

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So that is what I meant by further construed their construction or implicit.

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So it was not part of the words of the construction, but certainly it was on the district court's mind when it rejected simplicity as a matter of law as either anticipatory or obvious prior art, obviousness prior art.

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Mr. Wolf, this is Judge Stoll.

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What do you think meaningful effect and control means?

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I understood that to simply mean that the baffle has to actually control the flow of clippings, and that's the same thing as meaningful effect.

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Do you have a different understanding?

[00:08:22] Speaker 02:
I don't.

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The devil is in the details here, Your Honor, though, because we have Exmark's admission that the simplicity baffle controls the flow of air.

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But they add two further

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implicit elements to that.

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One is it has to have a meaningful effect along its entire length.

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So if there are portions that are not doing anything and portions that are, somehow that counts as no longer a flow control baffle.

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And then also the notion that it has to be a meaningful effect as opposed to its absence.

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So that would read out the specification language I was talking about earlier, where a baffle in the front wall, at least for a period of time,

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share metal as contemplated by the specification, but so it's, we don't have a problem with the notion that a baffle has to in some way control the flow of air.

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It admittedly does, X mark and C that does.

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The question is, why does it need to control it for the entire length as opposed to the absence of the wall?

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That was not the construction that the parties agreed to.

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That was not the construction that was used to find that our product infringed, that our original and product infringed, because there was no evidence that our original product controlled the flow of air along its entire length.

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There were clearly portions that did, just as there are clearly portions of Exmark that does.

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I mean, excuse me, Simplicity that does.

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We believe all of it does, but the point... Did I answer your honest question?

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I apologize if I got off on a tangent there.

[00:09:56] Speaker 00:
No, no.

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You answered it.

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Thank you.

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Yes.

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So briefly, moving to the issue of the discharge opening, the PTO found in the re-exam that it existed in simplicity and it confirmed that fact on appeal.

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And dependent claim four makes plain that a discharge opening still exists even if a mulching baffle is covering it.

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And just so we are all talking about the same thing, I don't know if your honors have available to you page 15 of our opening brief and maybe the

[00:10:26] Speaker 02:
the biggest and best picture of the underside of the Simplicity Deck?

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We do have it, Council.

[00:10:40] Speaker 02:
Thank you, Your Honor.

[00:10:41] Speaker 03:
This is a photo of Simplicity with the mulching kit installed.

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Is that right?

[00:10:47] Speaker 02:
That's correct, Your Honor.

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The underside of the deck was tilted upright.

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And we see on the green and the orange and the yellow is the baffle.

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And then when the yellow ends on the left side, you see a semicircular black piece of metal.

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That's the metal that closes off the discharge opening.

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If you look to its left, you see a vertical orange piece of metal.

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That's the discharge opening itself.

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The reason you see something there is

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the top of the discharge opening has metal, but then there's a gap.

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So you can see that the discharge opening very much still exists.

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Indeed, at the top and the bottom, there's, I don't know how many inches that is, but there's a gap.

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You can actually see white in between.

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The discharge opening very much still exists, even though the flow of air is cut off by that mulching baffle.

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And that's of course precisely

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what Claim 4, Dependent Claim 4 is talking about.

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What you see is simplicity is an embodiment of Dependent Claim 4 and therefore necessarily also an embodiment of Independent Claim 1.

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Mr. Wolfe, this is Judge Shen again.

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Yes.

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When I was reading this patent, it's a rather brief patent in terms of its written description and then looking at Claim 1 and Claim 4, what becomes

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Clear to me is that this patent is directed to, I guess, what I would call a reconfigurable side discharge mower, in that it was known in the art that you could convert a side discharge mower into a mulching mower by adding some plates inside the mower deck.

[00:12:41] Speaker 03:
to close off the side discharge opening.

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And when I see claim one referring to a discharge opening and then a first flow control baffle and all the other elements, it appears that claim one, by calling for a discharge opening to be formed in the sidewall, is in fact directed to a side discharge mower that

[00:13:11] Speaker 03:
through claim four, we understand, can be reconfigured through the addition of extra parts to convert the side discharge mower into potentially a mulching mower that can be reconfigured back into a side discharge mower.

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And so in that sense, why would it be wrong

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conclude, which I believe the district court did, that any infringing or anticipating mower would have to be able to function as a side discharge mower with all the elements recited in claim one, including the flow control baffle.

[00:14:02] Speaker 02:
So let me answer that two ways, Your Honor.

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One is that simplicity could, in fact, operate the way, even if that was correct as claims instruction.

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The piece of metal that covers the discharge opening is a separate piece of metal.

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You could, if you're looking at page 15 again, you could take the metal to the left of the yellow line off, and then you would indisputably have even ex marks review of claim one.

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So these are three different pieces of metal that are put into the plate in the simplicity package, and they're actually put in order of

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left, right, and then the discharge opening.

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Mr. Wolfe, that would be a 103 argument, right?

[00:14:44] Speaker 02:
No, Your Honor, I think it would be a... Well, it is a 103 argument, but it is also a 102 argument because as you put in the simplicity mower for the instructions, I gather that's my time, as you put in the simplicity baffles for 28395, Appendix 28395,

[00:15:04] Speaker 02:
You put in the right and the left.

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And at that point, you have claim one indisputably under ex-marx construction.

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You then subsequently put in the piece of metal that closes the discharge opening.

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So that's still anticipatory.

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And of course, we respectfully say that claim four under the law, that the discharge opening must still exist or claim four is made a nonsense of.

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And the PTAT even on appeal agreed with that.

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And I guess... Mr. Wolfe, I'll give you a little more time, but could you... You said you had a second reason.

[00:15:37] Speaker 03:
Could you quickly touch on that, or did you already include that?

[00:15:42] Speaker 02:
I did, Your Honor.

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That was the... And we talk about this at some length, which is that Claim 4 must encompass Claim 1.

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And so when it says it closes said discharge opening, the discharge opening must still exist even if closed.

[00:15:58] Speaker 02:
But all of this is, of course, replete with facts.

[00:16:01] Speaker 02:
I mean, our expert says it would have been obvious, as Your Honor pointed out, to just take that plate off if that's what you wanted to accomplish.

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But even when you're constructing it, there's a period where the plate isn't on.

[00:16:11] Speaker 02:
And so you have, even under Exmark's construction, an anticipatory mower at that point in time.

[00:16:18] Speaker 02:
OK, thank you very much.

[00:16:23] Speaker 03:
We'll now hear from Mr. Vandenberg.

[00:16:26] Speaker 03:
Mr. Vandenberg, whenever you're ready, please begin.

[00:16:30] Speaker 01:
Thank you, your honor.

[00:16:32] Speaker 01:
It may have pleased the court.

[00:16:35] Speaker 01:
The invention of Exmark's 863 patent was an important advance inside discharge mowing for the commercial mowing industry.

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It allowed landscape contractors to mow faster while maintaining a high quality of cut, making them more productive and more profitable.

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It also played a major factor in transforming Exmark from a small player in the market to the market share leader.

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And it was copied by many commercial mower manufacturers.

[00:17:08] Speaker 03:
Mr. Vandenberg?

[00:17:09] Speaker 03:
I'm sorry.

[00:17:10] Speaker 03:
This is Judge Chen.

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You only have a limited amount of time.

[00:17:13] Speaker 03:
Could you actually just speak to the arguments?

[00:17:16] Speaker 01:
Yes.

[00:17:16] Speaker 01:
I want to start with the issues of claim construction.

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But I want to start by talking about the many cases of this court.

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that reiterate that claims must be construed consistently with what the claims, the specification and the prosecution history show that the inventor actually invented.

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And usually those cases come up in the context of infringement where the argument is, you know, a patentee is trying to cover something that their invention was never intended to cover.

[00:17:51] Speaker 03:
Well, of course, it all comes down to the actual words of the claim.

[00:17:54] Speaker 03:
So if there are particular words of the claims you want the court to focus on, could you please go right to that and tell your story from those words?

[00:18:03] Speaker 01:
Yes, Your Honor.

[00:18:04] Speaker 01:
First of all is the issue of the discharge opening.

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As Your Honor indicated, the 863 patent tells us that it is disclosing a mower that is operable in two configurations.

[00:18:17] Speaker 01:
The configuration of claim one

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has a discharge opening, as well as the specially shaped flow control baffles that the specification tells us efficiently transport air and grass clippings across the deck and out through that discharge opening.

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And then you have the dependent claims, like claim four, that claim the second configuration, which adds the removable mulcher baffles that, when installed, close the discharge opening.

[00:18:49] Speaker 01:
The only logical way to read those two claims together is to conclude that in the configuration of claim one, the discharge opening needs to be open and available to discharge air and grass.

[00:19:07] Speaker 03:
Why is that?

[00:19:10] Speaker 03:
Right now, the claim just calls for an opening.

[00:19:14] Speaker 01:
No, I'm sorry, Your Honor.

[00:19:15] Speaker 03:
And now you are arguing that

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this structural opening needs to be open rather than potentially closed.

[00:19:26] Speaker 03:
But as we all know, claim one is a comprising claim, so therefore additional elements can always be added to a comprising claim and still anticipate or infringe.

[00:19:40] Speaker 01:
Your Honor, the claim does require more than just an opening.

[00:19:44] Speaker 01:
It requires a discharge opening.

[00:19:47] Speaker 01:
We have to give all words in a claim meaning.

[00:19:51] Speaker 01:
And to give the word discharge meaning there, it has to be a particular type of opening, one that is available to discharge grass.

[00:20:02] Speaker 01:
Yes?

[00:20:02] Speaker 04:
Excuse me.

[00:20:04] Speaker 04:
This is Judge Lynch.

[00:20:08] Speaker 04:
What is the function of the opening in the patent if it's not to discharge?

[00:20:18] Speaker 01:
Oh, 100%, the opening in the side wall in the patent is there to discharge.

[00:20:25] Speaker 04:
Isn't that the same in the simplicity structure?

[00:20:29] Speaker 01:
The thing about the simplicity structure is that in the configuration they point to to invalidate it, you have the multi-kit installed that has closed that discharge opening.

[00:20:42] Speaker 04:
Oh, but the opening is still there, and the opening

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is and forever will be a discharge opening.

[00:20:49] Speaker 04:
That's its only function, correct?

[00:20:53] Speaker 01:
But it does not, it cannot perform that function when the mulch kit is installed.

[00:21:02] Speaker 01:
And the specification here also reiterates that a mower is a side discharge mower or a mulching mower depending on whether or not

[00:21:12] Speaker 01:
Not just that there is an opening in the side wall, but that that opening is capable of discharging air and grass clippings.

[00:21:23] Speaker 01:
An analogy that we've thought about is if I'm in a locked room, you know, there's a doorway, but it's closed and it's locked and there's no key.

[00:21:32] Speaker 01:
Is there an exit opening from that room?

[00:21:34] Speaker 01:
I would submit to your honor that there is no exit opening

[00:21:40] Speaker 01:
if there's no ability to open that door and exit.

[00:21:44] Speaker 01:
It's not until the door has been unlocked and opened that there is an exit opening.

[00:21:49] Speaker 01:
In the same way, when the mulch kit is installed, you may be able to still look behind there and see an opening, but it's not a discharge opening because air and grass clippings cannot discharge through that opening.

[00:22:05] Speaker 01:
Only when it's removed that you have an opening, and when it's removed,

[00:22:09] Speaker 01:
You also have no structure in front of the blades.

[00:22:13] Speaker 01:
And in fact, as we pointed out in our brief, simplicity is really just another example of the conventional wisdom that says when you're side discharge mowing, keep nothing in front of the blades.

[00:22:27] Speaker 01:
And it's only when you're trying to mulch that you install baffles in front of the blades together with a structure that closes the discharge opening.

[00:22:39] Speaker 04:
I also do want to talk about this again.

[00:22:43] Speaker 04:
What language in the claims requires that the baffle be spaced apart from the front wall for the entire length?

[00:22:51] Speaker 01:
Right.

[00:22:52] Speaker 01:
There is lots of claim language that supports that conclusion.

[00:22:57] Speaker 01:
First of all, again, is the very words, flow control baffle.

[00:23:04] Speaker 01:
that is telling you, this was a coined term, and it's talking about a structure that controls the flow.

[00:23:12] Speaker 04:
And the point that we may... So what does that have to do with being spaced apart from the front wall?

[00:23:17] Speaker 01:
The point is that if you're simply talking about a thin plate that runs along contact conforms, creates a thicker front wall, there is no evidence that merely creating a thicker front wall

[00:23:32] Speaker 01:
has any control, has any effect on the flow of air and grass clippings.

[00:23:40] Speaker 01:
But your honor, it's not just that language.

[00:23:42] Speaker 01:
There is other language that leads you to the same result.

[00:23:45] Speaker 01:
And again, we construe claims not with each term in isolation, but we look at the claims terms together as a whole to make sense.

[00:23:54] Speaker 03:
Mr. Vandenberg, this is Judge Chen.

[00:23:56] Speaker 03:
Yes.

[00:23:57] Speaker 03:
If I recall correctly, the district court judge seemed to be persuaded by evidence he heard at trial that you will improve performance with your baffle if your baffle is spaced away from the front wall because it further reduces blowout.

[00:24:17] Speaker 03:
And to me, I thought that was a peculiar way to rely on that to construe

[00:24:27] Speaker 03:
flow control baffle when there's nothing in the intrinsic evidence that talks about how this baffle is designed to optimize the reduction of blowout under the front wall?

[00:24:43] Speaker 01:
Your Honor, courts are allowed to consider extrinsic evidence in the course of claim construction.

[00:24:51] Speaker 01:
And since one of the issues here is, is a space important

[00:24:57] Speaker 01:
it was appropriate for him to consider that extrinsic evidence.

[00:25:01] Speaker 03:
And in fact, to the extent that... But to me, he seemed to be suggesting the best mode of offering a baffle would be to space it away from the front wall.

[00:25:12] Speaker 03:
Not that you ultimately have a non-functioning baffle if it's somehow pressed up against the wall in part.

[00:25:21] Speaker 03:
That didn't seem to be what he was saying.

[00:25:23] Speaker 03:
He was talking about

[00:25:25] Speaker 03:
what is the most optimal design for a baffle vis-a-vis the front wall.

[00:25:30] Speaker 03:
And so that's my concern.

[00:25:32] Speaker 03:
And moreover, I don't see anything in your specification that necessarily defines baffle in that particular manner, i.e., requiring the baffle to be spaced apart all the way along the front wall.

[00:25:47] Speaker 01:
Let's look at the other claim language, Your Honor.

[00:25:49] Speaker 01:
We also have a requirement that the baffle be located between the blades and the front wall.

[00:26:00] Speaker 01:
If you were trying to cover a structure that merely had thin plates running along the front of the mower, you would never use that phraseology.

[00:26:14] Speaker 01:
As we say in our brief, if you're talking about a claim of hanging paneling in a room, you wouldn't say that that paneling depends downwardly from the ceiling of the room between the walls of the room.

[00:26:27] Speaker 01:
You'd say it's been attached to the wall, and it becomes part of the wall.

[00:26:32] Speaker 01:
Here, the claims say that the front flow control baffle needs to be located within the walls of the mower deck, and it needs to be between the blades and the front wall.

[00:26:44] Speaker 01:
The other thing that the claims require is they require that the walls have inner surfaces and that the walls define a downwardly directed opening.

[00:26:56] Speaker 01:
Again, further indication that the claim language, the flow control baffles are not to be construed to cover just long plates that are running along contacting conforming to the front wall.

[00:27:11] Speaker 01:
We're not disputing that those three short V-shaped pieces, in simplicity, are baffles.

[00:27:20] Speaker 01:
But if your honors and I would suggest instead of looking at page 15 of Briggs's brief, where they've sort of hidden the actual structure under their thick, dark annotations, that the court look at page 15 of our brief, where you can see

[00:27:39] Speaker 01:
that the only thing that's located between the blades and the front wall are those three V-shaped pieces.

[00:27:50] Speaker 01:
The remainder of it is not.

[00:27:53] Speaker 01:
And to clarify for the court on this issue of portions, Mr. Wolfe is trying to use that term broadly to say any portion he can think of, and this one-inch section or this two-inch section over there.

[00:28:07] Speaker 01:
That's not what the reference to portions is.

[00:28:10] Speaker 01:
Remember that this claim defines the shape of the flow control baffle with great specificity, requiring a first arcuate portion, a first elongated and substantially straight portion, a second arcuate portion.

[00:28:27] Speaker 01:
That's what the reference to portions is.

[00:28:31] Speaker 04:
And so forth.

[00:28:33] Speaker 04:
This is Judge Lynn again.

[00:28:35] Speaker 04:
Why would a baffle be ineffective with flow control merely because it forms in part to the front wall?

[00:28:50] Speaker 01:
Your Honor, again, we're not disputing that those V-shaped pieces have an effect.

[00:28:57] Speaker 01:
But those V-shaped pieces don't get you the various portions

[00:29:04] Speaker 01:
required by the claim.

[00:29:07] Speaker 04:
Well, I don't think you're answering my question.

[00:29:09] Speaker 04:
I'm sorry.

[00:29:11] Speaker 04:
Why would a baffle be ineffective for flow control merely because it might conform in part to the shape of the front wall?

[00:29:25] Speaker 01:
Your Honor, it might still have some effect on flow.

[00:29:31] Speaker 01:
But the various portions would not.

[00:29:33] Speaker 01:
And the portions you would be looking at would still not be located between the blades and the front wall.

[00:29:43] Speaker 04:
And you still have to answer.

[00:29:44] Speaker 04:
If the baffle was a separate structure.

[00:29:50] Speaker 01:
Again, Your Honor, I respectfully submit that at least the portions that run along contact and conform to the front wall

[00:30:01] Speaker 01:
would not be.

[00:30:02] Speaker 04:
Why are they not functioning to control flow?

[00:30:08] Speaker 04:
I mean, they may not be adding anything to the flow control that would otherwise be provided by the front wall itself if there had been no baffle.

[00:30:18] Speaker 04:
But nonetheless, if there is a baffle in between the front wall and the mower blades,

[00:30:27] Speaker 04:
That structure has a flow control effect, does it not?

[00:30:34] Speaker 01:
I'm not clear why you're thinking that.

[00:30:38] Speaker 01:
Is it because of the fact that the air contacts that surface?

[00:30:44] Speaker 01:
Because that is an issue that was addressed specifically by the patent office.

[00:30:51] Speaker 01:
And it's a recognition of the fact that not everything inside the deck

[00:30:57] Speaker 01:
that affects the flow of air and grass clippings is a flow control baffle.

[00:31:03] Speaker 01:
The blades unquestionably control the flow of air and grass clippings.

[00:31:09] Speaker 01:
They have a big effect on it.

[00:31:11] Speaker 01:
They are not flow control baffles.

[00:31:12] Speaker 01:
The deck walls, we're not disputing.

[00:31:15] Speaker 01:
The deck walls have an effect on the flow of air and grass clippings.

[00:31:21] Speaker 01:
But the question is whether the simplicity structure has all of those required elements of the claims.

[00:31:27] Speaker 01:
In addition to a flow control baffle that is located between the blades and the front wall, that projects downwardly from the top wall, that despite their presence, still leaves the deck with walls that have interior surfaces and that define a downwardly directing opening.

[00:31:54] Speaker 01:
And you look at all of that.

[00:31:56] Speaker 01:
material together.

[00:31:58] Speaker 03:
Mr. Vandenberg, why do you think simplicity refers to those plates as baffles?

[00:32:06] Speaker 01:
Well, of course, they have to call the part in their part manual something.

[00:32:13] Speaker 03:
That's right.

[00:32:14] Speaker 01:
And we don't dispute that as a whole there are pieces of that that in fact form a baffle function.

[00:32:22] Speaker 01:
But again, at the end of the day, the issue is not what simplicity calls it.

[00:32:28] Speaker 01:
It's what our specification, our claim language specification, prosecution history as a whole indicate was invented.

[00:32:40] Speaker 03:
During re-examination, didn't you acknowledge that it's OK if the baffle makes contact with the front wall?

[00:32:50] Speaker 01:
Of course.

[00:32:52] Speaker 01:
Yes, Your Honor, and that is dealing with that fundamental imprecision of language, that no matter what claim language you choose, parties like Briggs are going to try to argue that it means something different than what it says.

[00:33:06] Speaker 01:
Well, hold on a second.

[00:33:07] Speaker 03:
We're not talking about Briggs right now.

[00:33:09] Speaker 03:
We're talking about you.

[00:33:11] Speaker 03:
We're talking about your side.

[00:33:13] Speaker 03:
And we're talking about how your side, during the re-examination, communicated to the PTO

[00:33:22] Speaker 03:
there by the public, that it was your view that a baffle can contact the front wall.

[00:33:33] Speaker 03:
And so therefore, it doesn't necessarily have to be constrained to be completely separated all across the length of the front wall.

[00:33:45] Speaker 03:
Am I wrong about that?

[00:33:48] Speaker 01:
Your Honor, what we said is that it can touch at a single point.

[00:33:53] Speaker 01:
We're making the point that just because it touches at a single point would not prohibit it from being a flow control baffle.

[00:34:02] Speaker 01:
One of the requirements of the claim is that you have a substantially continuous baffle.

[00:34:09] Speaker 01:
It has to run substantially continuously.

[00:34:11] Speaker 03:
So now, I guess, just so I understand your position before you have to go,

[00:34:18] Speaker 03:
You're no longer pushing the idea that the baffle has to be completely separate all the way along across the front of the mower.

[00:34:30] Speaker 03:
It can touch the front wall once, but no more than once.

[00:34:35] Speaker 01:
Is that your view?

[00:34:35] Speaker 01:
A portion that either touches, I mean, at a single infinitesimal point, yes, it can undoubtedly do that.

[00:34:44] Speaker 01:
And that was the point being made to the board.

[00:34:47] Speaker 03:
In addition... Can you explain why it can contact the front wall once, but not twice?

[00:34:57] Speaker 01:
Because at that point, you are not making just a thicker front wall.

[00:35:02] Speaker 01:
I would submit this, Your Honor, that even if you had, for example, a two-inch section that runs along the front wall, that portion would not be the flow control baffle as claimed.

[00:35:16] Speaker 01:
then the issue that would need to be determined is whether there's a substantially continuous flow control baffle.

[00:35:23] Speaker 01:
The claim language contemplates that there could be discontinuities.

[00:35:30] Speaker 01:
So that's if somebody wanted to make that.

[00:35:32] Speaker 01:
And we have no evidence that anybody ever tried to appropriate this invention by doing that.

[00:35:38] Speaker 01:
But if somebody did that, that's where the claim language would lead you.

[00:35:42] Speaker 01:
And it's completely consistent with the point that

[00:35:46] Speaker 01:
pieces of metal that simply run along contacts and conform to the front wall.

[00:35:52] Speaker 01:
Okay, Mr. Vandenberg, I think you're out of time now.

[00:35:54] Speaker 01:
Thank you very much.

[00:35:55] Speaker 03:
Thank you, Your Honor.

[00:36:02] Speaker 03:
Is this Mr. Wolf?

[00:36:04] Speaker 02:
Yes, Your Honor, thank you.

[00:36:05] Speaker 03:
Okay, let's give Mr. Wolf five minutes just to make sure we have even time.

[00:36:11] Speaker 02:
Thank you, Your Honor, and I will potentially not use all of that five minutes absence of more questions.

[00:36:17] Speaker 02:
A couple things, Your Honor.

[00:36:18] Speaker 02:
One, Your Honors, one, we have to remind ourselves of the posture.

[00:36:24] Speaker 02:
I know we all know this, but this was summary judgment as the anticipation and obviousness of must of what Mr. Vandenberg just said factually.

[00:36:34] Speaker 02:
We have expert reports and the like that vigorously disagree with it.

[00:36:38] Speaker 02:
The jury may or may not agree, ultimately, with Mr. Vandenberg, but that's for the jury.

[00:36:46] Speaker 02:
There is, at a minimum, significant disputed factual issues.

[00:36:50] Speaker 02:
And I'd like, briefly, then, to turn to A28394, which is the specification for the multi-mower, just so you can see everything we've been talking about, and perhaps you've had it open previously.

[00:37:04] Speaker 02:
But I just wanted to make a few points based on that.

[00:37:08] Speaker 03:
Could you repeat the JA number?

[00:37:11] Speaker 02:
Yes, JA28394.

[00:37:15] Speaker 02:
And it's a two-page document.

[00:37:16] Speaker 02:
It goes on to 395.

[00:37:18] Speaker 02:
Yes?

[00:37:31] Speaker 02:
All right, so we see in the upper left, we have the blowout that's been colored in both of the briefs.

[00:37:36] Speaker 02:
And a couple things to note about that.

[00:37:38] Speaker 02:
First of all, Mr. Vandenberg said that you could touch once and you would still infringe, but at a certain number of times, if the baffle touches the front wall, it's thesis to be a baffle.

[00:37:49] Speaker 02:
I would note that in simplicity, thanks to the deflectors marked to C, the baffle never touches the front wall.

[00:37:56] Speaker 02:
It is always separated, at least by the distance of the deflectors, and then when you get to the V-shaped portions, by substantially more.

[00:38:05] Speaker 02:
Second, he made a comment about that it has to project downwardly from the mower deck.

[00:38:11] Speaker 02:
You'll know if you look near the top, you'll see bolts coming through the top of the mower deck connecting to the baffle.

[00:38:21] Speaker 02:
These baffle portions are not only screwed into the sidewall, they are screwed directly into the top wall of the mower deck.

[00:38:31] Speaker 02:
And finally, I just note that you see the piece labeled D. It's kind of in the middle left.

[00:38:40] Speaker 02:
That's the portion that covers the discharge opening.

[00:38:43] Speaker 02:
If you take away that piece, if you just install the two baffle portions, you have claim one.

[00:38:54] Speaker 02:
If you put D in, you have claim four.

[00:38:58] Speaker 02:
This is precisely the structure

[00:39:01] Speaker 02:
contemplated by the asserted patent.

[00:39:04] Speaker 02:
This anticipates for the minimum renders it obvious.

[00:39:08] Speaker 02:
And Mr. Wolfe, yes.

[00:39:10] Speaker 03:
I still am trying to understand why it would be obvious to install just the front baffles, but not install the plate that covers up the discharge opening.

[00:39:28] Speaker 03:
What was it that you argued below in your briefing on summary judgment?

[00:39:35] Speaker 02:
Yes, Your Honor.

[00:39:35] Speaker 02:
And our expert, Denis Del Ponte, who was a 20-year engineer at John Deere, talked about this.

[00:39:43] Speaker 02:
The notion is, obviously, side discharges if you want the grass kicked out and mulching is if you want it chopped up more and left there for fertilizer or mulch or whatever the case may be.

[00:39:54] Speaker 02:
And so if you wanted the flow control benefit of

[00:39:58] Speaker 02:
With mulching, you had plate D in.

[00:40:02] Speaker 02:
If you didn't, you took it out.

[00:40:04] Speaker 02:
But again, that's just for anticipation.

[00:40:06] Speaker 02:
If you're talking about obviousness, then it's a much more clear line.

[00:40:13] Speaker 02:
You have the claim baffle structure.

[00:40:14] Speaker 02:
And to get from A to B, no pun intended, all you have to do is remove D. That's plainly for a jury to decide.

[00:40:22] Speaker 02:
whether or not that would be obvious, even if you were to decide that a discharge opening ceases to exist if you cover it.

[00:40:30] Speaker 03:
I guess the question is, my question is, why would you remove that plate?

[00:40:36] Speaker 03:
But keep the front mulching baffle plates for purposes of using simplicity as a side discharge mower.

[00:40:47] Speaker 03:
What was it that you argued for why

[00:40:51] Speaker 03:
one of skill in the art would be inclined to use half of the mulching kit when using simplicity for a side discharge mower?

[00:41:03] Speaker 02:
If you believe that the benefit of the baffle structure is that the curve straight curve structure of the baffle improved air flow,

[00:41:16] Speaker 02:
you could use that improved airflow either for mulching or for non-mulching purposes.

[00:41:21] Speaker 02:
That's the punchline.

[00:41:23] Speaker 02:
But that the... I wanted not to get too far away from the fundamental point, though, that if we accept, and I think we should, that Claim 4 is practiced, i.e., anticipated by simplicity as fully intended, then by definition, as a matter of patent law, Claim 1 is also practiced and therefore anticipated.

[00:41:46] Speaker 02:
But, of course, all of this, Your Honor, is intensely factual.

[00:41:50] Speaker 02:
Did I answer your question?

[00:41:52] Speaker 03:
Yes, you did.

[00:41:52] Speaker 03:
Do you have one quick final thought?

[00:41:56] Speaker 02:
No, Your Honor.

[00:41:56] Speaker 02:
I think we've made our points, and thank you very much for your time.

[00:42:01] Speaker 02:
We're all, the whole community is very impressed with how this process is going in light of the pandemic.

[00:42:06] Speaker 02:
I hope everyone's well.

[00:42:08] Speaker 03:
Okay.

[00:42:09] Speaker 03:
Thanks very much for that.

[00:42:10] Speaker 03:
Mr. Wolf, this case is submitted.

[00:42:16] Speaker 03:
The honorable court is adjourned until tomorrow morning at 10 a.m.