[00:00:00] Speaker 00: Argument today is 2-0-1-5-1-9, Maxwell versus Loups. [00:00:06] Speaker 00: Mr. Walker, please proceed. [00:00:10] Speaker 03: Thank you. [00:00:11] Speaker 03: This is the district court action or an appeal of the district court action regarding a patent directed to a toothbrush. [00:00:18] Speaker 03: And it's a toothbrush for institutional use, such as use in prisons or for inmates. [00:00:25] Speaker 03: And it's directed to a flexible handle to avoid use of the brush as a weapon. [00:00:31] Speaker 03: And so the issues are with respect to the one element in dispute, the flexible throughout limitation of the flexible handle issues was the sua sponte summary judgment of non-infringement proper. [00:00:49] Speaker 03: And we submit that it wasn't, that that limitation was met and at the very least there's disputes of fact. [00:00:56] Speaker 03: And then the other issue was whether there was an abuse of discretion in connection with the court's private test of the accused product and then suesponte summary judgment based there on without a chance for us to respond. [00:01:11] Speaker 03: And the court's rejection of the request for reconsideration and what we contend was altering the claim construction in the course of doing that. [00:01:22] Speaker 02: And hopefully, before you get into your argument, [00:01:25] Speaker 02: Quick question just about claim construction. [00:01:29] Speaker 02: Is it your view that the elongated body includes the orange substance but does not include the head, that is to say the white piece with bristles? [00:01:47] Speaker 02: or that the flexible elongated body includes the orange substance with the head in it. [00:01:55] Speaker 02: The reason I ask is because at several points in your brief, you suggest that the elongated body is less flexible in the head portion, which I assume is attributable to the head, which led me to believe that your argument was that the elongated body includes the head portion [00:02:15] Speaker 02: But at other points, it seems like you're saying that the elongated body does not include the head. [00:02:24] Speaker 03: Right. [00:02:24] Speaker 03: So, yes, we're contending that the claim requires that the elongated body is comprised of a head portion and a handle portion. [00:02:35] Speaker 03: And then the claim also has another element called the head, which is not part of the elongated body. [00:02:40] Speaker 02: The question is, is the elongated body, when you talk about the elongated body, is it, in effect, the entire toothbrush, including the head, or does it exclude the head? [00:02:52] Speaker 03: Well, I think technically, the way the claim is written, it excludes the head. [00:02:57] Speaker 03: OK. [00:02:58] Speaker 04: So for purposes of this case and the accused product, [00:03:04] Speaker 04: which is made up of two colors, orange and white. [00:03:08] Speaker 04: Your view is, in mapping the Q's product onto the claim, that the orange material is the claimed elongated body, and then the white portion, excluding the bristles, is the claimed head element. [00:03:25] Speaker 04: Is that right? [00:03:27] Speaker 03: Yes. [00:03:28] Speaker 04: Okay. [00:03:29] Speaker 04: But then, just following up on [00:03:32] Speaker 04: it did seem like in parts of your briefing and parts of your argument, you were suggesting that the elongated body, at least the head portion of the elongated body is less flexible than the handle portion of the flexible body for the accused product. [00:03:57] Speaker 04: And that could only be because that argument is premised on [00:04:02] Speaker 04: the white material being included in your view of what the head portion of the elongated body is. [00:04:11] Speaker 04: So I think I can understand Judge Bryson's confusion here, given that what you're saying in different parts of your brief seem to be inconsistent with each other. [00:04:23] Speaker 04: Could you clarify that? [00:04:27] Speaker 03: Yeah, I see what you're saying, but I'm just thinking of the [00:04:32] Speaker 03: The claim is a practical matter that, well, in talking about the head portion being less bending than the handle portion, that would be a result of the claim given that there's a requirement that the head is multitude exposed in the head portion of the handle and that it's of a more rigid material. [00:05:00] Speaker 03: I think we can talk about both things in trying to prove the claim, and I guess that's maybe partly why we're here, in that to prove that the elongated body is flexible throughout, it's easy to prove that the handle portion is flexible throughout because everyone can see it and bend it. [00:05:19] Speaker 03: We submit that the evidence that we provided also shows that the head portion also bends or flexes. [00:05:26] Speaker 03: It just doesn't bend as much. [00:05:28] Speaker 03: Because that's the way the claim is set up and that's the way the product is made to help it not be used as a weapon. [00:05:36] Speaker 02: As Judge Chen was just saying though, if it's less flexible in the head portion and you say, for example, in reply brief at page 15, you say the elongated body of the accused product is less flexible in the head portion than in the handle portion. [00:05:56] Speaker 02: Because the less flexible head is inserted within the head portion, if what you're saying is that it is the elongated body is less flexible, and then as Judge Ten said, that can only be because the elongated body includes the head. [00:06:13] Speaker 02: And are you, for lack of a better way of putting it, are you walking away from the suggestion that the [00:06:23] Speaker 02: head portion is less flexible than the handle portion? [00:06:30] Speaker 03: No. [00:06:30] Speaker 03: No. [00:06:31] Speaker 03: No, I think we get to this point by applying the claim to the accused product, which is specific. [00:06:38] Speaker 03: And it's true that in the accused product, the head portion is less flexible than the handle portion. [00:06:43] Speaker 02: Right. [00:06:43] Speaker 02: But we're now talking about an issue of claim construction, which does not involve looking at the accused product, right? [00:06:50] Speaker 03: Right. [00:06:51] Speaker 02: And the question is, once again, is the head portion less flexible in your view because the elongated body includes the head in the head portion? [00:07:04] Speaker 03: As a matter of claim construction? [00:07:05] Speaker 02: Yes. [00:07:07] Speaker 03: Well, as I read it, the term flexible throughout doesn't go into that level of detail. [00:07:13] Speaker 03: It just says that the elongated body must be flexible throughout. [00:07:17] Speaker 03: And so if an inch of it is [00:07:19] Speaker 03: is much more flexible than another inch of it. [00:07:22] Speaker 03: I don't think it matters so long as they flex. [00:07:25] Speaker 00: Council, I think for me, this is Judge Moore, I think for me the confusion seems to be arising because the district court treated in application to the accused product treated this claim as requiring flexibility throughout once the head is inserted inside the elongated body and that's not what the claim seems to require on its face and I think [00:07:52] Speaker 00: Your argument is consistent with that, but then I think you kind of, where you may be sort of arguing in the alternative that even if the claim required flexibility along the entire elongated body, even after the white head is inserted in, we have proof that should have precluded summary judgment even if that is the right claim construction, which you yourself do not agree it is, but even if it is the right claim construction, [00:08:19] Speaker 00: we have proof that still should have precluded summary judgment on that. [00:08:22] Speaker 00: Does that sound consistent with what you're arguing? [00:08:25] Speaker 03: Yes, we have proof on both of those. [00:08:28] Speaker 03: And we also cited a case, I think the Tanaka case, that says that a claim term can have more than one ordinary meaning. [00:08:37] Speaker 03: So flexible throughout means that the material of the elongated body [00:08:46] Speaker 03: is flexible throughout and as the court said in the claim construction order at Appendix 674 under the header common words as the court was saying this has plain and ordinary meaning the court said that the first material and then put parentheses the elongated body must be flexible throughout. [00:09:06] Speaker 03: So we think that's consistent with our first argument that if all the orange material is flexible the body is flexible throughout and we also submitted evidence [00:09:16] Speaker 03: I think there's evidence of record at least to raise an issue of dispute of fact that the head portion is flexible. [00:09:24] Speaker 03: And if you bend it, it's flexible. [00:09:26] Speaker 03: It is less flexible than the handle, but it does bend. [00:09:29] Speaker 03: We submitted images of that. [00:09:32] Speaker 00: Again, Counsel C, here's where you're sort of kind of confusing the issue. [00:09:36] Speaker 00: You mean the head portion, when the head is disposed within it, [00:09:41] Speaker 00: Correct? [00:09:42] Speaker 00: Because the head portion is just a piece of the orange tube. [00:09:44] Speaker 00: The orange tube, the head portion is going to be just as flexible as the body portion until you insert the white, stiffer material inside the head portion. [00:09:53] Speaker 00: Correct? [00:09:54] Speaker 03: All right. [00:09:55] Speaker 03: Yes. [00:09:57] Speaker 03: Well, as to the latter, we're saying when you apply it to the accused product, the fact is that that head portion is flexible. [00:10:07] Speaker 03: It bends and it twists. [00:10:09] Speaker 03: but it bends and twists less than the handle portion. [00:10:14] Speaker 03: And so we're trying to address the plain and ordinary meaning of flexible throughout in both cases. [00:10:20] Speaker 03: That the material itself is flexible and also that the head portion and the handle portion bend and therefore it's flexible throughout. [00:10:27] Speaker 03: Both things are true. [00:10:28] Speaker 03: Both things are evidence of infringement. [00:10:30] Speaker 03: And both things are consistent with the claim construction. [00:10:34] Speaker 03: You know, maybe the difference is the hypothetical of looking at the claim and imagining all possibilities [00:10:40] Speaker 03: versus the application of the claim to the accused product which gets into this kind of seeming difference or inconsistency between saying we proved it because the flexible material is flexible throughout and I mean the orange material is flexible throughout and no one disputes that. [00:11:00] Speaker 03: And also we proved it because we showed the brush bending including the head portion. [00:11:06] Speaker 03: Bending is just less bending than the handle. [00:11:09] Speaker 03: And yes, in doing that, we're, we acknowledge that an accused product that has a head in it that's stiffer. [00:11:17] Speaker 00: Mr. Walker, you're into your rebuttal time. [00:11:19] Speaker 00: Do you want to continue? [00:11:27] Speaker 03: Well, I wanted to, well, this is an easy case compared to most of them, I suppose. [00:11:34] Speaker 03: was complicated. [00:11:36] Speaker 03: I wanted to note, as I already did, that the court itself and the claim of structural order said that the first material is flexible throughout. [00:11:44] Speaker 03: And also, Smith, the expert, in bending the brush forward towards the bristles and having the image, which he labeled as less bending and more bending, he said, despite the court saying [00:11:58] Speaker 03: He didn't, that the orange material that makes up the elongated body handle and head portions is less rigid than the second material. [00:12:05] Speaker 03: So it has to be, at least have some flexibility to it, and that's Appendix 833. [00:12:14] Speaker 03: And so all reserved from there. [00:12:17] Speaker 00: Thank you, Mr. Walker. [00:12:18] Speaker 00: Let's hear from Mr. Kakar. [00:12:21] Speaker 01: Good morning, Your Honors. [00:12:23] Speaker 01: May it please the Court, this is Muda Kakar for MAXIL. [00:12:29] Speaker 01: there is no evidence based on the record of this case that, you know, any reasonable juror will find that the head portion is flexible. [00:12:41] Speaker 01: And when I say head portion and I, you know, agree with the... I know there was confusion based on how Loupes characterizes it, but it is Maxill's position is that as the claim is written, the head portion, or at least the elongated body, [00:12:59] Speaker 01: is comprised of the head portion and handle portion, that's clear, but the head portion also essentially includes the white head, because the white head... Mr. Kakkar, this is Judge Chen. [00:13:12] Speaker 04: Just as a baseline, do we all agree that the orange material shown in the photographs of your accused toothbrush is flexible throughout, just the orange material alone? [00:13:27] Speaker 01: Yes, Your Honor, it is. [00:13:29] Speaker 04: So your argument necessarily is premised on the head once it's installed in the elongated body becomes part of the elongated body. [00:13:48] Speaker 01: That is correct, Your Honor. [00:13:50] Speaker 04: OK. [00:13:51] Speaker 04: But what about the claim structure, which appears to set out and separate [00:13:59] Speaker 04: three different elements of the claimed toothbrush. [00:14:05] Speaker 04: Claim limitation one being an elongated body being flexible throughout. [00:14:10] Speaker 04: Limitation two being a head comprised of a second different material. [00:14:15] Speaker 04: And then finally, limitation three, a plurality of bristles extending from the head. [00:14:22] Speaker 04: So structurally, that seems to signal to me that the head [00:14:27] Speaker 04: is a separate and distinct component from the elongated body. [00:14:31] Speaker 04: Now, to be sure, they're all ultimately integrated with each other, the bristles into the head and the head into the elongated body, but why would it necessarily be wrong to read and understand and construe the claim as the head being a separate and distinct [00:14:50] Speaker 04: component from the elongated body, and it is only the elongated body itself alone in isolation that has to be flexible throughout. [00:15:01] Speaker 01: Your Honor, because the way the claim is written, and I agree that there are multiple elements, and then the elements are related, but if you look at the language of claim one, where it talks about a head, the head, [00:15:19] Speaker 01: But it further says the head is disposed in and molded to the head portion of the elongated body. [00:15:27] Speaker 01: And there is extensive prosecution history, and it's discussed in the brief, so I will not repeat it here, where it essentially, the applicant essentially made that argument that it is very critical for this utility of this invention to work, for this invention to work, that the head be permanently fixed [00:15:48] Speaker 01: to the head portion of the elongated body. [00:15:51] Speaker 01: And then the applicant used very strong language that the invention is directed to a toothbrush where the handle and the head are permanently attached and head portion of the invention is under no circumstances capable of removal without destroying the purpose and utility of the claimed invention. [00:16:10] Speaker 01: And it's on page 1039 of the appendix and elsewhere as well as discussed in the brief, which is why [00:16:17] Speaker 04: Mr. Kakkar, my arm is permanently attached to my torso. [00:16:23] Speaker 04: Does that mean when I say torso, that necessarily includes my arm? [00:16:33] Speaker 01: But when we say, Your Honor, your body, then we will say it includes your arm. [00:16:39] Speaker 04: Yeah, and it also includes the torso, that it's permanently attached to the arm. [00:16:48] Speaker 01: That is correct. [00:16:50] Speaker 04: But then we wouldn't get confused and say, the torso necessarily now encompasses my arm given that the arm and torso are somehow permanently affixed to each other. [00:17:07] Speaker 00: In fact, Judge Ten, my engagement ring, because my fingers have gotten fatter over the years, is permanently affixed to my finger, which is attached to my arm, which is attached to my torso. [00:17:18] Speaker 00: So I think my engagement ring is likewise now a part. [00:17:23] Speaker 04: Thank you for sharing that observation. [00:17:26] Speaker 01: Very good. [00:17:28] Speaker 01: And with all due respect... Very helpful, very helpful. [00:17:33] Speaker 02: If I could intercede here. [00:17:38] Speaker 02: If we were to conclude that the claim construction that Mr. Walker is advocating here, that the elongated body does not include the head, we would have to reverse, would we not? [00:17:58] Speaker 01: I'm sorry. [00:17:58] Speaker 01: So if I understand Your Honor correctly, you're saying that if we were to [00:18:05] Speaker 02: If we were to conclude that the claim of destruction that Mr. Walker is suggesting that elongated body is just the orange substance, it's distinct from the head, we would have to reverse, correct? [00:18:24] Speaker 01: Your Honor, the elongated body being distinct from the head, it is [00:18:35] Speaker 01: It is distinct in the sense that, yes, they are made up of distinct. [00:18:40] Speaker 02: The term elongated body includes only the, for purposes that we've been discussing, the orange substance, and does not include the head, the white, less flexible element. [00:18:56] Speaker 02: If we were to so conclude, then we would have to reverse. [00:19:05] Speaker 01: I don't see why we would have to reverse if we were to conclude that because if we were to conclude the elongated body is just the orange material because again, there are two different, there are elements that are separate in both claim one and claim 11 because the limitation that elongated body being flexible throughout [00:19:33] Speaker 01: is present in both Claim 1 and 11, but the confusion that comes from is the relative rigidity of the first material and second material, which is only an element of Claim 1 and not of Claim 11. [00:19:49] Speaker 01: So as far as, so this is Maxwell's position, that the way the claims are written, the flexible throughout [00:19:59] Speaker 01: limitation, which the elongated body should be, is a different limitation from the relative rigidity of the material that makes the head and that makes the body. [00:20:11] Speaker 01: And for accused product to be shown to infringe the claimed invention in the 285 patent, it must be shown that not only is the accused product flexible throughout, which [00:20:28] Speaker 01: that is from one end to the other as the court, the district court. [00:20:33] Speaker 00: But counsel, your answer to Judge Bryson's question is just sheer nonsense. [00:20:38] Speaker 00: You're not answering his question at all. [00:20:41] Speaker 00: His question was, if we conclude the elongated body is the only thing that needs to be flexible based on the claim language and that the head does not need to be flexible, just the elongated body, doesn't that require reversal in this case? [00:20:59] Speaker 01: I apologize, you know, I did not mean to give a nonsensical answer. [00:21:05] Speaker 01: I guess I'm just having a hard time understanding, you know, the claim construction argument here that we would need to reverse it if the elongated body does not include the head portion. [00:21:20] Speaker 02: No, no, not include the head, not the head portion. [00:21:23] Speaker 01: I'm sorry, the head. [00:21:26] Speaker 01: You're correct. [00:21:27] Speaker 01: You're correct. [00:21:28] Speaker 01: The elongated body does not include the head. [00:21:35] Speaker 01: I apologize. [00:21:41] Speaker 01: I'm not able to definitively answer that because if we conclude that the head is not part [00:21:52] Speaker 01: The lower court did not make any determination whether the head is part of the elongated body or not. [00:22:02] Speaker 02: Except that it seems to me at least that it was implicit in the district court's ruling that because the district court found that the elongated body was not flexible throughout, that was predicated on the fact that there was [00:22:21] Speaker 02: less, or in the district court's view, no bending in the handle portion because of the presence of the head. [00:22:30] Speaker 01: That is correct, Your Honor. [00:22:32] Speaker 02: And, okay, I guess... District court's whole analysis was premised on the construction, implicit construction perhaps, of the elongated body as including the head. [00:22:47] Speaker 01: That is correct, Your Honor. [00:22:49] Speaker 02: My question is, if he's wrong about that implicit construction, don't we need to reverse? [00:22:55] Speaker 01: Yes, Your Honor. [00:22:56] Speaker 01: Thank you for clarifying. [00:22:57] Speaker 01: Yes. [00:22:58] Speaker 01: You're absolutely right. [00:22:59] Speaker 01: OK. [00:23:01] Speaker 04: But we do understand that your position is the flexibility limitation is directed to the elongated head when it's combined [00:23:15] Speaker 04: the elongated body when it's combined with the head, correct? [00:23:18] Speaker 04: That is correct. [00:23:20] Speaker 04: And then looking at claim four, it has a hardness limitation as to the head material, right? [00:23:30] Speaker 01: Yes, sir. [00:23:31] Speaker 04: Of 75 to about 95 on the shore A scale. [00:23:37] Speaker 04: Are you familiar with the relative hardness of such materials within that shore A? [00:23:44] Speaker 01: Yes, Your Honor. [00:23:49] Speaker 04: So that is... Those are pretty hard materials we're talking about once you get up into the 90s, isn't that right? [00:23:57] Speaker 01: That is correct, Your Honor. [00:23:59] Speaker 04: So once you install something that hard into an otherwise floppy tube, it's going to make the head portion end of that floppy tube [00:24:14] Speaker 04: pretty inflexible, wouldn't it, once we're talking about hardness on the scale of the 90s? [00:24:24] Speaker 01: So, Your Honor, the hardness from 75 to 95, you know, and it also talks about [00:24:31] Speaker 01: And then the Claim 5 is the one that actually lists examples of all the material. [00:24:37] Speaker 01: And so you're right. [00:24:40] Speaker 01: It will make it, you know, it will make it relatively harder to, you know... So all those materials... Sorry, let me take a step back. [00:24:54] Speaker 01: So here's the 75 to 95, where is the... [00:24:59] Speaker 01: hardness of versus the hardness of the second material. [00:25:04] Speaker 01: And that's another point, Your Honor, that we had in our brief that there is a confusion the way the claims are written, whether the 75 to 95. [00:25:22] Speaker 01: The claim four says that when the second material, that is the material comprising the head, [00:25:28] Speaker 01: is 75 to 95. [00:25:30] Speaker 01: And so, yes, those are hard materials. [00:25:34] Speaker 01: So, Your Honor, if I understand you correctly, you're saying that if that durometer hardness, if that were to be durometer hardness of the first material, that is the material making the tube, [00:25:51] Speaker 00: To stress more, it's kind of you saying that's the material that needs to be the first material, because your argument is the elongated body has to be flexible throughout, even when you insert into it a head which has a 95 sure A scale hardness. [00:26:08] Speaker 00: So you're the one making the argument that the entire body need to be flexible, even when something that hard is stuffed into it. [00:26:21] Speaker 01: That is correct, Your Honor, because that is how the claim is written. [00:26:29] Speaker 01: And that is why, Your Honor, and it's not an appeal, but they were at the time of claim construction, we did make arguments relating to indefiniteness issues because that's what makes it confusing that [00:26:45] Speaker 04: You know, because at the end of the day, practically speaking, you know... Isn't there a way, isn't there a different way though of understanding how claim four interacts with claim one? [00:26:56] Speaker 04: And that would be to further confirm that the flexible limitation is really just directed to the elongated body by itself in isolation without having the head installed into it. [00:27:10] Speaker 04: And then the head that actually, according to claim four at least, [00:27:15] Speaker 04: can be quite hard, quite rigid, quite inflexible. [00:27:19] Speaker 04: If I were to punch my fist as hard as I could against something that had a 95-durometer hardness, I'd probably break my hand. [00:27:31] Speaker 01: That is correct, Your Honor. [00:27:33] Speaker 01: But it is our maximum position that, you know, once that heart, and that is, you know, [00:27:40] Speaker 01: Claim four being the dependent claim, but when we look at the claim one language, it is when that hard head, because it is permanently molded to the elongated body, as in the head portion of the elongated body, it renders that portion of the elongated body [00:28:01] Speaker 01: at least, you know, inflexible. [00:28:04] Speaker 01: And that's why, you know, even the accused product, the way it's made, that the head portion, which, essentially, that's our position, includes the head, which is permanently fixed to the head portion of the body, making it inflexible. [00:28:21] Speaker 01: And that is why that limitation is not met. [00:28:25] Speaker 02: But I do understand... Mr. Dasar, I just have one last question. [00:28:30] Speaker 02: Procedurally, I'm troubled by the way this case went down procedurally. [00:28:36] Speaker 02: You filed an opposition to Loops' motion for summary judgment. [00:28:44] Speaker 02: And in the first page of that opposition, you suggest to the court that it's sua sponte granted summary judgment of non-infringement in Maxwell's favor. [00:28:54] Speaker 02: You did not file a cross motion for summary judgment, which would have given [00:29:00] Speaker 02: loops an opportunity to file an opposition and make the sellotext showing that it's required to make. [00:29:08] Speaker 02: And yet, loops by virtue of your brief request for sous-spontae summary judgment has been put in the position of having to scramble to respond to that point in a reply, which as I understand was limited in district practice to three pages. [00:29:29] Speaker 02: Why didn't you file a cross-motion for summary judgment, which would have given LOOPS a full opportunity to respond? [00:29:38] Speaker 01: That's absolutely correct, Your Honor. [00:29:39] Speaker 01: It wasn't any tactical decision. [00:29:43] Speaker 01: It was just, you know, a procedural oversight on my part because I found, you know, with case law, because it was our position that based on the evidence that LOOPS provided, [00:29:56] Speaker 01: in its opening motion as favoring summary judgment of infringement, that based on that evidence, that evidence was lacking and was not enough to show, to meet this summary judgment standard. [00:30:12] Speaker 01: And that's why, you know, the case that I cited that in such a case, even when there's no cross motion, the court can still find and make a determination [00:30:21] Speaker 01: when the party that has the burden by preponderance of evidence of showing infringement fails to meet that burden, the other party, all it has to do actually either show how they fail to or simply even point out that there is not enough evidence that [00:30:42] Speaker 01: that there can be any infringement under a reasonable jury standard and which is why I labeled it as a request for a Suas-Ponte decision and then the district court does address that in a footnote saying that it was not procedurally filed correctly as a cross motion but even as a request [00:31:04] Speaker 01: court cites to the authority that it has the power to grant the sua sponte request and also, and that's why the court I think... Under limited circumstances. [00:31:16] Speaker 01: That is correct. [00:31:17] Speaker 01: And I think that is why the court, I think, agrees with Your Honor because the court went ahead and gave Maxwell the opportunity to not only just, not Maxwell, sorry, Luce, not only to file the motion for reconsideration, but to also further supplement the motion to reconsideration and provide additional information which Luce may have otherwise provided in response to that cross-motion. [00:31:41] Speaker 00: Judge Bryson, anything further? [00:31:43] Speaker 01: Nothing further. [00:31:44] Speaker 00: Okay, thank you. [00:31:46] Speaker 00: Mr. Walker, how much, Joseph, how much rebuttal time does Mr. Walker have? [00:31:50] Speaker 04: Mr. Walker has three minutes on the button. [00:31:53] Speaker 00: Thank you very much. [00:31:53] Speaker 00: Mr. Walker, please proceed. [00:31:56] Speaker 03: Thank you. [00:31:57] Speaker 03: And yeah, I understand the point regarding claim four and claim 13 is the one that we asserted that it's consistent with the construction of flexible throughout if you apply that to just the body and that's consistent with the way [00:32:13] Speaker 03: the claim is written. [00:32:15] Speaker 03: And then procedurally, and I know we've briefed this over and over, you know, in addition to the Suicide Summary Judgment without the cross-motion, the court then asked, well, send me the brush, and then issued the order saying, this doesn't flex, bend, twist, or anything, but by that time, we'd already submitted evidence that it does, and it does, and we submitted more evidence that it does. [00:32:41] Speaker 03: Having the expert put a measurement device to show that the evidence we already submitted shows that there's a deflection in the head portion. [00:32:51] Speaker 03: And why are we trying to prove flexibility throughout by referring to the head at all? [00:32:58] Speaker 03: Well, it's a practical matter. [00:33:00] Speaker 03: We're applying the claims to the accused product. [00:33:03] Speaker 03: So you hold it in your hands and you twist it. [00:33:05] Speaker 03: Or you put it in a vice and you twist it. [00:33:08] Speaker 03: And so procedurally, [00:33:11] Speaker 03: not having a chance to even know what the court did to examine this, and knowing, or at least believing, what we see with our own eyes, that the head portion does bend, we don't see how that could be procedurally appropriate. [00:33:26] Speaker 03: We don't see how that couldn't be an abuse of discretion. [00:33:29] Speaker 03: I don't like to use that term regarding anyone, but it was unreasonable to [00:33:36] Speaker 03: ignore the picture of the head portion being bent by fingers, it clearly is flexible, and deny the whole thing. [00:33:44] Speaker 03: So, issue summary judgment, sua sponte, without disregarding evidence that's directly contrary to that. [00:33:53] Speaker 03: So, with that, I will close. [00:33:57] Speaker 00: Okay, we thank both counsels. [00:33:59] Speaker 00: This case is taken under submission and that concludes our proceedings for today. [00:34:04] Speaker 03: The honor report is adjourned until tomorrow morning at 10 a.m.