[00:00:00] Speaker 03:
This is number 19, 1800, Intellectual Ventures II, LLC, against Aston Shaky Company.

[00:00:08] Speaker 03:
Again, Mr. Stewart.

[00:00:09] Speaker 01:
Thank you again, Your Honor.

[00:00:15] Speaker 01:
It's not been a very long time since I've seen you.

[00:00:19] Speaker 03:
We have to stop meeting this way.

[00:00:24] Speaker 01:
Okay, this is...

[00:00:28] Speaker 01:
Another appeal of an IPR, and I'd like to focus my attention this time, or focus your attention, excuse me, this time on two of the claim construction issues that are before the court.

[00:00:39] Speaker 01:
And those are the meaning of the phrase, pathway in the monolithic body, and the meaning of the phrase, fluid cool, and whether it's a limitation at all.

[00:00:49] Speaker 02:
Not the in claim construction?

[00:00:52] Speaker 01:
Pathway in the monolithic body is one of the two claim construction issues I would like to address.

[00:01:01] Speaker 02:
Tell me why the following is wrong.

[00:01:02] Speaker 02:
You're essentially arguing that this claim language should have the same meaning as the more narrow claim language that was basically an issue in the case we were just listening to about embedded in and words like that that aren't

[00:01:22] Speaker 02:
that are narrower on their face than just in by itself.

[00:01:28] Speaker 01:
I would agree with you that we're arguing that the construction should be essentially the same.

[00:01:34] Speaker 01:
I would disagree that the word in is not inherently as narrow.

[00:01:41] Speaker 01:
What I would concede is that the word in is more ambiguous than the phrase embedded in.

[00:01:49] Speaker 01:
As we explained in the briefs, one of the ordinary meanings of the word in is embedded in or encapsulated in.

[00:01:56] Speaker 01:
And so what the court and the board would need to do is look through the specification and file history to see which ordinary meaning was intended.

[00:02:06] Speaker 03:
What do you do about Figure 16, though, where it's only surrounded on at best three sides?

[00:02:16] Speaker 01:
Figure 16, you're referring to the example where there is a kind of a groove or a trench cut into the side of the... Yes, right, and the top is some sort of aluminum.

[00:02:29] Speaker 01:
Yeah, that wouldn't be an embodiment except for the covering over it.

[00:02:38] Speaker 01:
Otherwise, we believe that would be excluded from the claim.

[00:02:41] Speaker 02:
Right, but the aluminum is not part of the...

[00:02:46] Speaker 02:
Monolithic body.

[00:02:49] Speaker 01:
No, the aluminum is not part of the monolithic body, but something, at least in our view.

[00:02:56] Speaker 02:
It's a very small piece of a figure, but there it is.

[00:02:59] Speaker 01:
Yes, there it is.

[00:03:01] Speaker 03:
So you're trying to argue that that essentially was something that you disclosed but didn't claim?

[00:03:08] Speaker 01:
We think the better reading is that figure 16 is claimed because of the covering over the groove or cutout that you see there at number 338 and also 338 at both points.

[00:03:27] Speaker 03:
But it wouldn't be in the walls of the monolithic body as you contend.

[00:03:33] Speaker 01:
I do think it's cut into the walls of the monolithic body and it is sealed off.

[00:03:41] Speaker 01:
We certainly, as an alternative, we could consent and agree to a narrower claim construction in which figure 16 would be an unclaimed embodiment.

[00:03:55] Speaker 01:
But we do think that the better reading of it is that it does fall within the scope of the claim.

[00:04:05] Speaker 02:
to give to in doesn't require complete enclosure by the... Not by the monolithic body, but enclosure by the monolithic body and... A deep enough trench inside the monolithic body even if the top or side or something of the trench would still qualify in your view.

[00:04:26] Speaker 01:
Well, as long as it's closed off.

[00:04:28] Speaker 02:
though closed off by something other than the monolithic body.

[00:04:32] Speaker 01:
That's correct, Your Honor.

[00:04:33] Speaker 01:
And again, that's, I think, an issue that doesn't necessarily need to be resolved for this appeal.

[00:04:40] Speaker 01:
And we would agree as an alternative that figure 16 would simply be an unclaimed embodiment.

[00:04:52] Speaker 03:
So if your analogy about guns in the wall of a fort

[00:04:57] Speaker 03:
You would say that even if the gun was placed into a little groove, as long as you put a top over it, that it would be in the wall?

[00:05:07] Speaker 01:
Yeah.

[00:05:08] Speaker 01:
As long as it was sealed off, it doesn't have to be sealed off by the same cement or bricks that are forming the wall.

[00:05:16] Speaker 01:
It could be sealed off by wood or something else.

[00:05:20] Speaker 01:
That would be our position, yes, Your Honor.

[00:05:31] Speaker 01:
And I think frankly your questions have fairly covered most of what I had to offer on the meaning of the word in.

[00:05:44] Speaker 01:
And I can move on.

[00:05:45] Speaker 03:
How do you apply that construction to the META reference?

[00:06:08] Speaker 01:
The meter reference is simply a gap or space that's located next to the monolithic body.

[00:06:18] Speaker 01:
And then there is the rotor and other components that are in the middle of the gap.

[00:06:28] Speaker 01:
But it's still simply fluid flowing through a gap next to the monolithic body.

[00:06:44] Speaker 01:
If the court has no further questions on in, I'll move on to fluid cool.

[00:06:53] Speaker 01:
Fluid-cooled is relevant only to the BRAM grounds.

[00:06:57] Speaker 01:
And fluid-cooled appears in the preamble, and it's a limitation for two reasons.

[00:07:02] Speaker 01:
The first is that a preamble is limiting if the specification makes clear that the preamble language is part of what the inventor has actually invented and intended to encompass within the claim.

[00:07:15] Speaker 01:
And that's from Corning Glassworks from this court and many other cases as well that I could cite to the court.

[00:07:23] Speaker 01:
And here the specification leaves no doubt that the inventors limited their work to fluid-cooled devices and intended their claim to cover only fluid-cooled devices.

[00:07:33] Speaker 01:
Even the field of the invention in the specification is limited specifically to fluid-cooled devices.

[00:07:38] Speaker 03:
And this pattern is repeated throughout the entire specification in which the inventors single-mindedly... But what about the fluid-cooled device language changes the structure of what is being claimed?

[00:07:52] Speaker 01:
First of all, I'm not convinced that under Corning and the other cases that a change in structure is essential.

[00:08:01] Speaker 01:
But even if it is, fluid cooled implies that there is some mechanism in the structure for cooling the device through use of a fluid.

[00:08:12] Speaker 01:
There has to be a structure that does that.

[00:08:16] Speaker 01:
Here it is the heat transfer pathway, which is expressly recited in the body, but it adds the fact that that is in fact a structure for carrying cooler fluids, fluids that are going to cool the motor rather than some other type of fluid.

[00:08:40] Speaker 01:
And the second reason that the preamble here, the phrase fluid-cooled is limiting, is that the term fluid-cooled provides an antecedent basis for the terms fluid-cooled motor and fluid-cooled device.

[00:08:57] Speaker 01:
Under settled case law of this court,

[00:09:03] Speaker 01:
antecedent basis provides a basis for concluding that the preamble term is limiting.

[00:09:11] Speaker 03:
But isn't your argument not just that it has to have a cooling function but that it has to have a meaningful cooling function?

[00:09:19] Speaker 03:
I mean, how are we supposed to say how much cooling is supposed to be done?

[00:09:24] Speaker 01:
I don't think the word meaningful is our favorite word.

[00:09:29] Speaker 01:
I think I would characterize it as more than de minimis cooling.

[00:09:34] Speaker 01:
And I think there is precedent from this court and from the lower courts as well that words like de minimis cooling and similar terminology

[00:09:48] Speaker 01:
is a meaningful claim limitation and can be applied by one of skill in the art.

[00:09:56] Speaker 01:
The best example from this court that I have is the Bausch & Lomb versus Hydrocurve case, 796 F-3rd, 443.

[00:10:04] Speaker 01:
And in that case, the claim was directed to a contact lens with a smooth surface and the defendant came forward with evidence

[00:10:13] Speaker 01:
that the surface of its contact lens when viewed under a scanning electron microscope was very rough looking.

[00:10:19] Speaker 01:
And the court said that's not really the relevant test.

[00:10:23] Speaker 01:
The relevant test is whether the device is smooth enough to sufficiently serve the inventor's purpose.

[00:10:32] Speaker 01:
And so a de minimis amount of roughness visible only under a scanning electron microscope was insufficient.

[00:10:38] Speaker 01:
So here I would say similarly that

[00:10:42] Speaker 01:
If the accused product, if we were in litigation, has a heat transfer property or a fluid-cooled property enough to serve the inventor's purpose of cooling the motor so that it doesn't overheat, then we would be in a situation where it falls within the claims.

[00:11:00] Speaker 01:
But if you're in the brand situation where every effort is made to avoid imparting heat into the blood in the artificial heart,

[00:11:08] Speaker 01:
then you're not in a fluid gold situation, you're in quite the opposite situation.

[00:11:18] Speaker 01:
The Bachelin v. Hydrocurve case didn't actually use the phrase de minimis.

[00:11:23] Speaker 01:
There is a very recent district court case that I can cite to the court that used precisely that language.

[00:11:31] Speaker 03:
Sorry.

[00:11:32] Speaker 01:
It's quite all right.

[00:11:33] Speaker 01:
It was Edge Systems versus Venus concept out of the Southern District of Florida in late 2019.

[00:11:39] Speaker 01:
And there, the claims called for abrading the skin.

[00:11:42] Speaker 01:
And the court held that this required the removal of more than a de minimis amount of skin.

[00:11:51] Speaker 01:
Because obviously, if you just brush your face with your hand, you're going to remove some de minimis amount of skin.

[00:11:56] Speaker 01:
But the claim required more than that.

[00:11:59] Speaker 01:
If the court has no further questions on either fluid pooled or in, I'd like to reserve the rest of my time for rebuttal.

[00:12:09] Speaker 01:
Okay, thank you.

[00:12:09] Speaker 01:
Thank you very much, Your Honor.

[00:12:20] Speaker 03:
Mr. Ratchie.

[00:12:22] Speaker 00:
Thank you, Your Honor.

[00:12:23] Speaker 00:
You may please the court.

[00:12:26] Speaker 00:
This appeal addresses three references, Ameda, Stefan, and Bram.

[00:12:32] Speaker 00:
Each of those references supports an independent ground front patentability.

[00:12:37] Speaker 03:
What about the patent would support, other than figure 16, would support the notion that in the wall doesn't have to mean, I mean, I'm sorry.

[00:12:49] Speaker 03:
I'm going back to his example.

[00:12:50] Speaker 03:
In the monolithic body doesn't have to mean in it.

[00:12:54] Speaker 03:
Inside of it, perhaps.

[00:12:56] Speaker 00:
Well, Figure 16 does that, of course.

[00:12:59] Speaker 00:
But the other piece of evidence that the board picked up on, it wasn't addressed in the context of the meta so much as it was defined, was what the parties call the pump embodiment.

[00:13:10] Speaker 00:
And there, it was actually the appellant who provided a colored and labeled diagram.

[00:13:16] Speaker 00:
That's on page 60 of the blue brief.

[00:13:19] Speaker 00:
And also, it comes from the patent owner's story ply at appendix page 631.

[00:13:25] Speaker 00:
There, what they've labeled as the monolithic body includes a housing shell, and the fluid pathway is bounded by the interior of that housing shell.

[00:13:36] Speaker 00:
And the board picked up on that and even said, denying one of the requests for rehearing, that the purple fluid pathway is a void bounded by the inner walls of the pump housing.

[00:13:47] Speaker 00:
It's not inside of the walls of the pump housing.

[00:13:53] Speaker 00:
So figure 16 and what the parties are calling the pump embodiment are the two primary pieces of evidence to show that the word in is not limited to inside the walls of.

[00:14:11] Speaker 00:
And the board, in addressing this claim construction, basically treated

[00:14:21] Speaker 00:
Appellant's arguments were a claim construction even though they never articulated this in the walls of claim construction argument until the request for rehearing.

[00:14:31] Speaker 00:
But the board said, okay, we'll look at this as a claim construction issue and said there's nothing in the language of the claims that precludes the empty space bounded by the monolithic body.

[00:14:44] Speaker 00:
And the board also pointed out that the claims don't recite a specific location of the fluid pathway in the monolithic body.

[00:14:50] Speaker 00:
It just has to be in the monolithic body.

[00:14:54] Speaker 00:
And in fact, the claim doesn't even require the presence of walls.

[00:14:57] Speaker 00:
The entire patent doesn't say anything about walls.

[00:15:02] Speaker 00:
There was never any lexicography by the applicant or any disclaimer during prosecution to narrow the meaning of the word in.

[00:15:13] Speaker 00:
And another point I'd like to make, Your Honor, is even if we adopted Appellant's very narrow claim construction of the term in and read that extra language into the claims, the discharge port and the intake port of Umida both go into and through the wall of the housing.

[00:15:32] Speaker 00:
There's no dispute about that.

[00:15:33] Speaker 00:
And Umida even says, this is appendix page 2655, paragraph 16, Umida says,

[00:15:42] Speaker 00:
The discharge port 14 is formed on the joining surfaces of the casing cover 11 and the molded stator A. Thus, it's clear that the discharge port is formed by features that are in the monolithic body.

[00:15:56] Speaker 00:
Those are structural features that are formed into the monolithic body to allow fluid to go right through the wall of the monolithic body.

[00:16:06] Speaker 03:
Why isn't fluid cooled in the preamble?

[00:16:10] Speaker 03:
important for understanding what heat transfer fluid is?

[00:16:15] Speaker 00:
Because that's just a feature or benefit of the invention.

[00:16:18] Speaker 00:
It adds nothing to the structure.

[00:16:20] Speaker 03:
What is heat transfer fluid, then?

[00:16:25] Speaker 00:
Well, the appellants actually defined that, and the board adopted that construction.

[00:16:31] Speaker 00:
Now they're unhappy with it.

[00:16:33] Speaker 00:
That heat transfer fluid is just a fluid capable of transferring heat.

[00:16:38] Speaker 00:
I think the word is capable was in their construction.

[00:16:42] Speaker 00:
The patent itself admits that fluid cooling is prior art.

[00:16:47] Speaker 00:
This is at the bottom of column one of the patent.

[00:16:50] Speaker 00:
It's actually quoted in the blue brief at page five.

[00:16:53] Speaker 00:
The patent states, it was well known that a fluid in the environment of the device can be used to aid cooling.

[00:17:00] Speaker 00:
So fluid cooling in the preamble is just a benefit or feature of the invention

[00:17:05] Speaker 00:
The invention is to improve fluid cooling in a manner that they thought hadn't been done before, which was to use a monolithic body of plastic to both encapsulate the conductor, which is the part that's getting hot, and to also form a fluid pathway.

[00:17:19] Speaker 00:
That's the invention, and that's the structure that they claimed.

[00:17:26] Speaker 00:
This goes to one of the guideposts from Catalina Marketing.

[00:17:31] Speaker 00:
This is also quoted in the Intertool case that

[00:17:33] Speaker 00:
The preamble generally is not limiting when the claim body describes a structurally complete invention such that the deletion of the preamble phrase does not affect the structure.

[00:17:43] Speaker 00:
Deleting fluid cool doesn't change the structure at all because it's not structural.

[00:17:49] Speaker 00:
IV repellent even admitted, because they were trying to address 35 U.S.C.

[00:17:55] Speaker 00:
section 112 paragraph F,

[00:17:57] Speaker 00:
in footnote four on page 82 of the blue brief, they even admitted that the claims recite specific fluid cooling structure.

[00:18:11] Speaker 00:
Secondly, Your Honor, even if we were to limit the claims to fluid cooled, which would contradict all the guideposts from Catalina, but assuming that that's how the claim is construed,

[00:18:22] Speaker 00:
There's unrefuted testimony from Dr. Trumper that a blood pump doesn't, in fact, use fluid cooling to cool the device.

[00:18:29] Speaker 00:
Dr. Trumper has experience with magnetically levitated blood pumps like BRAM.

[00:18:36] Speaker 00:
That's from appendix page 3558.

[00:18:38] Speaker 00:
He said in his declaration that the blood passing through the pump cools the pump by convection, carrying heat away from the pump.

[00:18:46] Speaker 00:
So he provided an explanation as to how it's fluid-cooled.

[00:18:50] Speaker 00:
And this also came up, again, in his deposition, where he testified that heat will always be convected away by the blood flow.

[00:18:59] Speaker 00:
The only thing that appellants said in response is that bran must be cooling some other way, but they never explained what that way is, and they never addressed Dr. Frumper's testimony that all blood pumps are fluid-cooled through convection.

[00:19:25] Speaker 00:
If you have no more questions about BRAM, I'd like to turn to Stefan.

[00:19:32] Speaker 03:
I have no more questions on BRAM.

[00:19:36] Speaker 00:
The issue with Stefan was the appellant's characterization of the claim construction channel.

[00:19:46] Speaker 00:
The board agreed with the appellants that it brought us reasonable interpretation of the claim term pathway as channel.

[00:19:54] Speaker 00:
The board disagreed with the appellants that a channel has these special characteristics that confine flow to a specific route and avoid turbulence or chaotic or random patterns.

[00:20:05] Speaker 00:
The board looked at the intrinsic record and didn't find these further features or limitations present in the claims or in the specification.

[00:20:14] Speaker 00:
The board looked at extrinsic evidence, such as the testimony of appellants expert Dr. Beeman.

[00:20:19] Speaker 00:
They discredited that testimony because he provided no factual basis

[00:20:23] Speaker 00:
for his opinion that a pathway is a structural channel that confines flow to a specific route with no turbulence.

[00:20:31] Speaker 00:
And appellants never contested once the evidence that appellees put forward that all fluid pathways have turbulence.

[00:20:38] Speaker 00:
That's from the Venard book, and it's discussed at appendix page 1402.

[00:20:43] Speaker 00:
The board also looked at the pump embodiment with respect to the Stefan reference and determined that

[00:20:51] Speaker 00:
Appellant's own statements about the pump embodiment undermined its position that a channel restricts flow to a specific route with specific fluid dynamic features.

[00:21:03] Speaker 03:
But the board was a little confused about the pump embodiment when it was pointing to the prior art, when it thought it was pointing to the patent, right?

[00:21:12] Speaker 00:
Well, I'm not necessarily sure that that's characterized

[00:21:17] Speaker 00:
But what resolves that issue, if there was any confusion, is resolved by the fact that appellants are the ones who provided the colored and labeled diagram of the pump embodiment.

[00:21:27] Speaker 00:
And that shows that the purple fluid pathway gets wider and gets narrower.

[00:21:32] Speaker 00:
It has an impeller that's spinning in the middle, creating turbulence.

[00:21:37] Speaker 00:
And it's very similar to the Stefan reference in that the pathway changes its width and also has an impeller that's spinning in the middle of it.

[00:21:47] Speaker 03:
How does turbulence equate to nonlinear?

[00:21:52] Speaker 00:
I don't believe there's any relation, Your Honor.

[00:21:55] Speaker 00:
Nonlinear means that the, and this isn't raised on appeal, but it means that the shape can't be formed by a simple core pen.

[00:22:05] Speaker 00:
So when you have a housing or a monolithic body with curves in it, that would be nonlinear.

[00:22:11] Speaker 00:
Because it can be molded without the use of a simple

[00:22:15] Speaker 00:
or it can't be molded with a simple core pen.

[00:22:20] Speaker 00:
Now, in the great brief, page 29, appellants have said that, well, we don't need this turbulence limitation in the claims.

[00:22:29] Speaker 00:
It's irrelevant to appeal.

[00:22:31] Speaker 00:
Well, if that's true, then Stefan has a funnel section 22 and funnel segments 44 that meet the limitation of a fluid pathway in the monolithic body.

[00:22:45] Speaker 00:
The expert of appellants, Dr. Beaman, again, he had an opinion that characterized Stefan's pump housing as a chamber.

[00:22:52] Speaker 00:
The board gave that little weight because he failed to even address the funnel segments 44 that are formed into the lower housing half and go right through it.

[00:23:01] Speaker 00:
Those funnel segments are spaced between solid plastic shutoff segments.

[00:23:06] Speaker 00:
The board pointed that out as well.

[00:23:10] Speaker 00:
So if there are no more questions about

[00:23:13] Speaker 00:
The prior references, Your Honors, I'll just conclude briefly.

[00:23:16] Speaker 00:
The board got it right.

[00:23:20] Speaker 00:
There's no reason to read extra features or limitations that appellants want into the claims.

[00:23:26] Speaker 00:
And even assuming that any plausible version of appellant's claim construction is adopted, there's still substantial evidence of unpatentability.

[00:23:36] Speaker 00:
Thank you.

[00:23:46] Speaker 02:
Thank you.

[00:23:48] Speaker 01:
Mr. Stewart?

[00:23:48] Speaker 01:
Thank you, Your Honor.

[00:23:50] Speaker 01:
I'd like to start by addressing the figure from the prior art 737 patent on page 60 of our opening brief.

[00:24:00] Speaker 01:
That figure, even with the annotations and coloring, is not the patented invention.

[00:24:07] Speaker 01:
That's the prior art.

[00:24:09] Speaker 01:
The patent under consideration here explicitly states that this figure must be modified in order to practice the claimed invention.

[00:24:20] Speaker 01:
And the modifications include creating a monolithic body out of the two disparate portions

[00:24:25] Speaker 01:
that are shown as the dark green housing and then the lighter green interior portions.

[00:24:32] Speaker 01:
So those two things must be converted from separate components into a monolithic body.

[00:24:37] Speaker 01:
And secondly, lost wax casting or some other method must be used to actually create holes through that monolithic body in order to practice the invention.

[00:24:48] Speaker 01:
So I think there's some misinterpretation or misunderstanding about what's shown in the figure on page 60.

[00:24:56] Speaker 01:
Secondly, with respect to the UMIDA reference, what was described to the court as a pathway, the discharge report of UMIDA is actually, first of all, non-linear, and the claims call for a non-linear pathway.

[00:25:17] Speaker 01:
And secondly, the discharge report is simply an outlet, which is a separate claim limitation.

[00:25:23] Speaker 01:
actually the nonlinear pathway called for by the claims.

[00:25:30] Speaker 01:
With respect to the meaning of the term pathway or channel, the counsel is correct that we're no longer pressing on appeal, that no turbulence can appear in the channel or pathway.

[00:25:48] Speaker 01:
But that does not mean that Stefan satisfies the in the monolithic body limitation.

[00:25:55] Speaker 01:
It's simply not in the monolithic body.

[00:25:57] Speaker 01:
It is, again, next to the monolithic body, passing along the walls of the monolithic body rather than in the walls of the monolithic body.

[00:26:08] Speaker 01:
And there was also a mention briefly of the waiver argument that we didn't address these issues until our petition for rehearing before the board.

[00:26:22] Speaker 01:
And we went through great lengths to explain in our opening brief exactly what the procedure was below, what happened, what arguments we made, every step of the way.

[00:26:33] Speaker 01:
And we think there could be just no issue that there's no waiver concerns here.

[00:26:41] Speaker 01:
So if the court has no further questions, I will rest with 11 seconds left.

[00:26:47] Speaker 01:
Thank you.

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

[00:26:49] Speaker 02:
The case is taken under submission.

[00:26:50] Speaker ?:
Thank you.