[00:00:00] Speaker 03:
Thank you very much.

[00:00:00] Speaker 03:
Good morning, Ms.

[00:00:01] Speaker 03:
Garner.

[00:00:02] Speaker 03:
Please proceed.

[00:00:03] Speaker 03:
This is Case 2020-1047, Hoist Fitness System versus Huffstuff Fitness.

[00:00:13] Speaker 03:
Ms.

[00:00:13] Speaker 04:
Garner, please proceed.

[00:00:15] Speaker 04:
Thank you, Your Honor.

[00:00:16] Speaker 04:
Good morning, all of Your Honors, and may it please the Court.

[00:00:20] Speaker 04:
The core issue in this appeal is the serial claim construction of claim terms that require pivotally mounting a user support frame.

[00:00:30] Speaker 04:
The district court ultimately narrowed those terms inconsistently with the patent specification to limit pivotal mounts to only those that produce movement that is generally circular.

[00:00:42] Speaker 04:
The pivotally mounted relative to and pivotally mounted on terms require a user support mounted to pivot, mounted to turn, and places no further restrictions on the overall movement path.

[00:01:01] Speaker 04:
So the court's construction that deviates from the claim language significantly is too narrow in some respects, but not surprisingly, given the departure from the claim language, it's also too broad in some respects.

[00:01:17] Speaker 03:
But the pivot axis defines a vertical gravitational center line.

[00:01:22] Speaker 03:
Isn't that significant?

[00:01:26] Speaker 04:
The pivot axis defines

[00:01:29] Speaker 04:
vertical gravitational center line and so the pivot axis is a point.

[00:01:38] Speaker 04:
However, the overall movement is not what determines whether or not the user support is pivotally mounted.

[00:01:48] Speaker 04:
The user support has to change in angular orientation.

[00:01:53] Speaker 04:
There are other claim terms in some but not all of the

[00:01:59] Speaker 04:
patterns that are directed to the movement around the pivot axis.

[00:02:07] Speaker 04:
But of course, a body can move around a point, even in a circle around that point, without changing orientation, without pivoting

[00:02:21] Speaker 04:
Think of a chair on a ferris wheel that moves around about the point in the middle of the ferris wheel, but maintains its upright orientation.

[00:02:31] Speaker 04:
What pivotally mounted here requires is that that upright orientation not be maintained, but that the chair, the user support frame change in angular orientation over the course of the exercise movement.

[00:02:48] Speaker 04:
What about the lateral movement, right?

[00:02:53] Speaker 04:
So the claims do not rule out lateral movement.

[00:03:04] Speaker 04:
It's tough stuff position that by adding a slide as one of the parts of the claimed multiple part pivot axis having multiple pivots that took it outside

[00:03:22] Speaker 04:
these comprising claims, but that's not the case.

[00:03:25] Speaker 01:
The addition of lateral movement... You have to rely on the comprising language to get there.

[00:03:30] Speaker 01:
Lateral movement is not within the concept of pivotal movement, right?

[00:03:37] Speaker 04:
So the movement of the user support frame is not required only to pivot.

[00:03:46] Speaker 01:
Well, I understand, but my question was lateral movement is not

[00:03:51] Speaker 01:
within the definition of pivotal, right?

[00:03:54] Speaker 04:
They are two different kinds of movement, yes.

[00:03:59] Speaker 04:
But this term places a restriction that the user support frame must pivot.

[00:04:06] Speaker 04:
It doesn't say that it can't do other things, that it can't also move laterally.

[00:04:14] Speaker 03:
What about the four-bar pivot system?

[00:04:18] Speaker 04:
That's the exact embodiment that discloses both lateral movement and pivotal movement and shows that the claims are not limited to purely circular motion or even generally circular motion.

[00:04:35] Speaker 04:
The claims, this embodiment that shows a four-bar linkage that can accomplish a wide variety, a huge range of motion.

[00:04:46] Speaker 04:
is one of the embodiments that the patentee disclosed.

[00:04:52] Speaker 04:
The movement of a four-bar linkage always includes a lateral component in addition to a pivotal component.

[00:05:01] Speaker 03:
And that doesn't have a pattern of rotating around a single pivot point?

[00:05:08] Speaker 04:
So with regard to the four-bar linkage, the patent explains that although the movement is made up of multiple pivots, there are multiple pivots that are controlling the movement of the user support frame, so there is no one point

[00:05:27] Speaker 04:
about which it turns at all times, there's an average point.

[00:05:30] Speaker 04:
And that's what some of the patents call the theoretical pivot axis.

[00:05:35] Speaker 04:
So because it's not a circle, you can't define the center of the circle.

[00:05:43] Speaker 04:
And in order to find the center of the rotation or the center about which the user support frame moves, the patent teaches a method

[00:05:57] Speaker 04:
of perpendicular bisectors from the differentials between the beginning and ending movements in order to locate that pivot axis.

[00:06:07] Speaker 01:
But doesn't the four-bar embodiment described in the specification as having the same kind of movement as the pivot?

[00:06:17] Speaker 04:
It's described in the specification as optionally having that, being able to mimic

[00:06:24] Speaker 04:
It physically can't perfectly mimic, but it can approximate the movement of a single fixed pivot.

[00:06:32] Speaker 04:
But the patent makes the, so some of the patents disclose this optional mimicking capability.

[00:06:42] Speaker 04:
Not all of them do, importantly.

[00:06:44] Speaker 04:
The parent 880 patent does not include this discussion.

[00:06:49] Speaker 04:
The patents that do, when they're talking about particular figures, particular configurations of a four-bar linkage, they say this particular figure mimics and you can also place the pivot in an impossible location.

[00:07:08] Speaker 04:
But when those patents are talking more generally,

[00:07:11] Speaker 04:
about four-bar linkages as a type, the patents say this can allow a desired pivoting movement to be achieved where a single physical pivot would be in an inaccessible location.

[00:07:27] Speaker 04:
So that's from the 209 patent, Appendix 179 at Column 13.

[00:07:34] Speaker 04:
lines 56 through 62.

[00:07:36] Speaker 04:
At that point, the 2009 patent is talking generally.

[00:07:40] Speaker 04:
It starts out the embodiments of figures 1 through 26 all have four-bar linkages.

[00:07:47] Speaker 04:
And then it goes on to say that four-bar linkages can allow a desired pivoting movement to be achieved.

[00:07:55] Speaker 04:
So if there's a desire for a pivoting movement that approximates a single physical pivot,

[00:08:04] Speaker 04:
the four-bar linkage can accommodate that desire.

[00:08:09] Speaker 04:
Similarly, with regard to the 949 patent, when it's talking about Figure 8, it says the movement of this particular configuration in Figure 8 approximates that of a single physical pivot.

[00:08:25] Speaker 04:
But when the 949 patent is talking more generally about four-bar linkages,

[00:08:30] Speaker 04:
In the summary of the invention at appendix 123, column 2, 10-15, the specification notes the user support pivot may be a single pivot or it may be a four-bar linkage, and a four-bar linkage beneath the user support can be arranged to produce movement equivalent to a single physical pivot.

[00:08:58] Speaker 02:
Excuse me, Judge Schall here.

[00:09:01] Speaker 02:
The district court construed the pivotally mounted and pivotally mounting terms to require, as I understand it, overall movement that is generally concentric.

[00:09:17] Speaker 02:
And then further stated that concentric is more synonymous with circular rather than meaning having a common center.

[00:09:26] Speaker 02:
And I know that you

[00:09:27] Speaker 02:
take issue with that construction, but what do you understand the district court to be getting at when it says that concentric is more synonymous with circular rather than having a common center?

[00:09:47] Speaker 04:
entirely what the court was getting at, but the court below was taking cognizance of Tufts's argument that perfectly circular motion was required.

[00:10:01] Speaker 04:
The court had rejected that all along, eventually modifying its original construction to require concentricity, which

[00:10:11] Speaker 04:
was wrong but not problematic given that other claim terms require concentricity with respect to the pivot axis.

[00:10:26] Speaker 04:
But what he meant by not that concentric doesn't mean common center, it means circular.

[00:10:43] Speaker 03:
If I'm looking... Judge Schall, please continue with your question, if you wish.

[00:10:49] Speaker 02:
Bill, I'm finished.

[00:10:51] Speaker 02:
Thank you, Judge Lurie.

[00:10:53] Speaker 03:
All right.

[00:10:53] Speaker 03:
Then, Ms.

[00:10:54] Speaker 03:
Conner, you're into your rebuttal time, so perhaps we will... Could I have one more question, Judge Lurie?

[00:11:00] Speaker 01:
Yes.

[00:11:01] Speaker 01:
On page 179, column 14, there's this reference to the four-bar linkage, but it still says that

[00:11:12] Speaker 01:
describes it in terms of a pivot mount defining a theoretical pivot axis.

[00:11:21] Speaker 01:
So the language of the claim itself seems to suggest that the four-bar linkage accomplishes the same pivoting movement that the more traditional pivot mount would, right?

[00:11:41] Speaker 04:
The four-bar linkage does accomplish the pivoting movement that a single fixed pivot would accomplish, but it also includes a lateral component that the single fixed, the single physical pivot does not.

[00:11:58] Speaker 01:
And where in the claim language is the reference to that lateral movement?

[00:12:03] Speaker 01:
So with regard to the

[00:12:12] Speaker 04:
The fact that the overall movement is a combination of two different pivots leads to that conclusion.

[00:12:26] Speaker 04:
And additionally, the specifications that discuss this issue make clear that some four-bar configurations don't approximate the movement of a single physical pivot.

[00:12:42] Speaker 04:
The 209 patent at the first block quote that TFI, the Tufts-Tufts site from the 209 patent, it discusses this mimicking capability.

[00:12:55] Speaker 04:
Tufts-Tufts block quote site leaves off the last sentence of that paragraph though that states, the combined exercise arm and user support movement illustrated

[00:13:06] Speaker 04:
in figures 5A, 5B, 6A, 6B, and 7 may not be possible with a single pivot.

[00:13:16] Speaker 01:
So it's clear that some can be.

[00:13:19] Speaker 01:
Where in the claim language do I find any reference to the lateral movement that might be made possible by a four-bar configuration?

[00:13:29] Speaker 01:
Because I see in this claim language it's referring to the four-bar configuration mimicking the single pivot point.

[00:13:41] Speaker 04:
This claim term pivotal mounting is directed to the pivotal motion, but other claim terms reflect that other kinds of motion are possible.

[00:13:58] Speaker 04:
The movement around, the pivot doesn't necessarily lie in the middle of the body that's pivoting, and so the movement around

[00:14:11] Speaker 04:
The pivot axis includes a lateral component, a lateral movement component.

[00:14:21] Speaker 04:
It's pivoting the whole time it's moving, but it's also in a four-bar linkage moving laterally.

[00:14:29] Speaker 04:
And unless there are additional questions, I'll reserve the rest of my time.

[00:14:35] Speaker 03:
We will save it for you.

[00:14:38] Speaker 03:
We will pivot to Mr. Telcher.

[00:14:42] Speaker 00:
Good morning, Your Honors.

[00:14:44] Speaker 00:
I'm gonna start my clock here just one second.

[00:14:47] Speaker 00:
Okay.

[00:14:48] Speaker 00:
The district court properly construed the claim language consistent with its plain and ordinary meaning.

[00:14:54] Speaker 00:
The plain and ordinary, plain and ordinary meaning of pivotal is circular motion.

[00:15:00] Speaker 00:
This point is conceded by voice at page 46 of its opening brief, where it says pivotal movement is quote, only circular.

[00:15:09] Speaker 00:
Voice expert, Mr. Len,

[00:15:12] Speaker 00:
also conceded that pivotal motion only has one degree of freedom and, quote, creates essentially a circular motion around a pivot axis.

[00:15:22] Speaker 00:
In the court's original claim construction order, in Appendix 52, the court credits their expert's testimony that pivotal motion is circular.

[00:15:33] Speaker 00:
So the court got it correct.

[00:15:35] Speaker 00:
Boyce has two arguments.

[00:15:38] Speaker 00:
Why

[00:15:38] Speaker 00:
this court should deviate from the plain and ordinary meaning that, you know, all of us on this record agreed that it requires circular motion.

[00:15:45] Speaker 00:
So they're arguing why should we deviate from the plain and ordinary meaning.

[00:15:50] Speaker 00:
Hoist has two reasons.

[00:15:52] Speaker 00:
One of them is

[00:15:53] Speaker 00:
that in the four-bar linkage, according to them, this isn't stated in the patent's words, this is from an interpretation of a drawing, there's slight movement.

[00:16:01] Speaker 00:
So theory one is slight movement of the four-bar linkage.

[00:16:05] Speaker 00:
Theory two on why we should deviate from the plan in our area meeting is a couple of the asserted claims also use the word arcuate, albeit in claims that still require pivotal.

[00:16:16] Speaker 00:
Those are the only two reasons I give this court.

[00:16:18] Speaker 00:
As to the first reason,

[00:16:20] Speaker 00:
the district court actually credited their argument that there's slight movement in the four-bar linkage.

[00:16:26] Speaker 00:
If you look at, for example, Appendix 52, he says in the case of a four-bar linkage that Hoyt has submitted enough evidence to show that it's not perfectly pivotal.

[00:16:38] Speaker 00:
And then he goes on to add the word generally.

[00:16:41] Speaker 00:
So as for their first reason for deviating from the Plaint and Ordinary meeting, the district court credited their argument and found that it requires generally.

[00:16:50] Speaker 00:
As for their second argument on ARCUIT, being in only a couple of the claims, they didn't even make that argument at the claim construction phase.

[00:16:59] Speaker 00:
They conceded in footnote five of their original Markman brief that the claims 938, claim one that has ARCUIT in it as well as Pivotal, they conceded that was construed the same as the other Pivotal terms at the Markman phase.

[00:17:15] Speaker 00:
If you look at Appendix 35, which is the district court judge's markman order, he notes that the parties agree that all pivotal terms should be construed the same.

[00:17:27] Speaker 00:
So as to the second argument, as far as I'm concerned, that argument should have been deemed waived, which is what we've argued.

[00:17:35] Speaker 00:
However, even if you reach the argument on the merits and deem it not waived,

[00:17:40] Speaker 00:
It's only in now claim one of the 938 patents and that patent still requires quote pivotal movement.

[00:17:49] Speaker 00:
It says pivotally mounted relative to and it requires pivotal movement.

[00:17:55] Speaker 00:
So our group does not change that language.

[00:18:06] Speaker 03:
So... Pivot moves around... Pivot moves around... And that is essentially circular, right?

[00:18:16] Speaker 03:
Correct.

[00:18:16] Speaker 03:
Everyone agrees.

[00:18:18] Speaker ?:
That's your point.

[00:18:20] Speaker ?:
It is my point.

[00:18:21] Speaker 00:
And Hoist admits that it's page 46 of their opening brief.

[00:18:24] Speaker 00:
Hoist's expert says that it's circular motion.

[00:18:27] Speaker 00:
And so the only way we can get to where they want to get to is to deviate from the plain and ordinary meaning of pivotal.

[00:18:33] Speaker 00:
And they've not given this court a good reason to do that.

[00:18:37] Speaker 00:
and clearly the specs.

[00:18:39] Speaker 00:
The specs only describes pivotal movement.

[00:18:42] Speaker 00:
So there's two ways of achieving the pivot.

[00:18:44] Speaker 00:
One is a single pivot.

[00:18:47] Speaker 00:
The other way is the four-bar linkage.

[00:18:50] Speaker 00:
Patents should think the reason you use a four-bar linkage is there's some applications where you can't use a single pivot.

[00:18:57] Speaker 00:
And then we cited at pages nine to 10 of our opening brief all of the places in the specs

[00:19:04] Speaker 00:
where they state that the four-bar linkage produces the same movement as a pivot.

[00:19:09] Speaker 00:
The only point that Hoist has tried to make at times is that you can go out and find other four-bar linkages not disclosed in their patent that somehow might produce something other than circular motion.

[00:19:20] Speaker 00:
But those aren't in their patent.

[00:19:22] Speaker 00:
What's in their patent is described as producing pivotal or circular motion.

[00:19:27] Speaker 00:
As this court has noted, the claims all require that pivotal motion.

[00:19:32] Speaker 00:
As I heard from the question in the opening of this, the claims have no component that talks about translational movement.

[00:19:41] Speaker 00:
The claims don't even talk about elliptical movement.

[00:19:44] Speaker 00:
So if you combine linear with curving motion, you get elliptical or curvilinear.

[00:19:50] Speaker 00:
The claims don't call that out either.

[00:19:52] Speaker 00:
Yes, sir.

[00:19:53] Speaker 00:
Yes, sir.

[00:19:55] Speaker 02:
Sean here.

[00:19:56] Speaker 02:
I'd like to just ask you the same question

[00:19:58] Speaker 02:
that I raised with Ms.

[00:20:00] Speaker 02:
Garner when she was speaking.

[00:20:03] Speaker 02:
As I know, the judge said that concentric is more synonymous with circular rather than meaning having a common center.

[00:20:11] Speaker 02:
And I will confess that I've been, since I've been looking at the case, puzzling over that a little bit.

[00:20:18] Speaker 02:
Can you explain to me exactly the distinction between circular

[00:20:24] Speaker 02:
as opposed to having a common center, what the district court judge was talking about there.

[00:20:30] Speaker 02:
Yes, your honor.

[00:20:31] Speaker 00:
So the what hoist argued the claim construction phase is that it was the overall movement.

[00:20:41] Speaker 00:
We're talking about exercising.

[00:20:43] Speaker 00:
So if you sit on the user seat, what is the motion you're going to experience relative to the mainframe?

[00:20:49] Speaker 00:
So it's we're talking about a movement path and

[00:20:53] Speaker 00:
pivotal required a circular movement path.

[00:20:56] Speaker 00:
The reason we got to this center of rotation is because Hoyst knows that they can't prove that tough stuff machines produce a generally circular motion.

[00:21:08] Speaker 00:
That's why they stipulate it's non-infringement.

[00:21:11] Speaker 00:
So the way to get around the plain and ordinary meaning of

[00:21:15] Speaker 00:
Pivotal meaning circular was to argue that common center of a motion is the relevant inquiry.

[00:21:24] Speaker 00:
As we pointed out, their expert came up with a Rouleau method, which I'd never even heard of before.

[00:21:32] Speaker 00:
Our expert had never even heard of it before.

[00:21:33] Speaker 00:
But they found something in a book that talks about if you find a center of rotation for this Rouleau method, that that means that we infringe, even though it doesn't matter what motion it is.

[00:21:45] Speaker 02:
Uh, as we showed with the Rouleau measurement in the center of- Excuse me, Mr. Townsend, but wouldn't something that's circular have a common center?

[00:21:55] Speaker 00:
Absolutely.

[00:21:56] Speaker 00:
It does.

[00:21:57] Speaker 00:
So there's no dispute that a circle has a common center.

[00:22:01] Speaker 00:
What Coist was attempting to do is to say that, for example, a triangle has a common center.

[00:22:07] Speaker 00:
A square has a common center.

[00:22:09] Speaker 00:
Believe it or not, if you have a straight line that has a curve at the end, so imagine a straight line that goes for a foot.

[00:22:15] Speaker 00:
And at the very end, there's an inch long curve that has a center of rotation.

[00:22:20] Speaker 00:
So Hoyst was not saying that the center of rotation applied to circular movement.

[00:22:24] Speaker 00:
Hoyst was saying that any motion that had a center of rotation infringes its patent.

[00:22:30] Speaker 00:
Doesn't matter.

[00:22:30] Speaker 00:
And this was in their expert supplemental report that got stricken at the end.

[00:22:34] Speaker 00:
He said that triangles are covered, squares are covered.

[00:22:37] Speaker 00:
Anything with angular rotation, he claimed, was covered.

[00:22:41] Speaker 00:
So he was deviating well beyond circular movement.

[00:22:44] Speaker 00:
That's why the district court judge ultimately at the motion eliminate phase

[00:22:48] Speaker 00:
And the final hearing construed the term because he could tell that Hoist was trying to say it covered any motion under the sun except the straight line, which is not what the claims require.

[00:22:58] Speaker 00:
Thank you.

[00:22:59] Speaker 00:
Question?

[00:23:01] Speaker 00:
Yes, that answered my question.

[00:23:02] Speaker 02:
Thank you.

[00:23:06] Speaker 00:
So I don't have any more points to make.

[00:23:09] Speaker 00:
Are there any other questions for me?

[00:23:10] Speaker 00:
If not, I'll rest.

[00:23:13] Speaker 03:
Thank you, Mr. Telcher.

[00:23:15] Speaker 03:
Ms.

[00:23:15] Speaker 03:
Garner has some more.

[00:23:18] Speaker 04:
Yes, thank you, Your Honor, and may it please the court.

[00:23:21] Speaker 04:
The patents very clearly disclose that in the case of a four-bar linkage, you need to do a calculation in order to find the effective pivot point.

[00:23:35] Speaker 04:
It's not a circle, so there's no one pivot point.

[00:23:41] Speaker 04:
And the 880, the parent patent in this case, I call them nine,

[00:23:46] Speaker 04:
Lines 62 through 66 describes that since the pivot is a four-bar linkage in the embodiment of Figures 1 to 4, the user support frame pivots about a theoretical pivot axis, which is the effective pivot point for the combined pivotal movement of the four-bar linkage, which has multiple pivots controlling the movement of the user support frame.

[00:24:14] Speaker 04:
The movement is not

[00:24:17] Speaker 04:
pivot is not circular.

[00:24:21] Speaker 04:
And that's why you need a theoretical, that's why you need to find a theoretical pivot axis.

[00:24:33] Speaker 03:
You can finish your point, Tom Cole, if you haven't.

[00:24:36] Speaker 04:
I have.

[00:24:37] Speaker 03:
Okay.

[00:24:38] Speaker 03:
Thank you very much.

[00:24:39] Speaker 03:
We have your arguments and the case is submitted.

[00:24:43] Speaker 00:
Thank you.

[00:24:48] Speaker 00:
The Honorable Court is adjourned until tomorrow morning at 10am.