[00:01:17] Speaker 02: You're reserving three? [00:01:18] Speaker 02: Yes, Your Honor. [00:01:20] Speaker 02: I'll let you know. [00:01:21] Speaker 02: Start running into it. [00:01:27] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:01:30] Speaker 01: Two errors of claim construction made below require the judgment be vacated here. [00:01:36] Speaker 01: First, the district court erred in construing the disposed within claim limitation. [00:01:41] Speaker 01: to require the test strips be disposed entirely within the flow control channel, thereby excluding the preferred embodiment of the patent. [00:01:51] Speaker 01: The claims use nearly identical language as the specification, as the specification when it's referring to the preferred embodiment of Figure 3 disposed within. [00:02:00] Speaker 01: The claims, the assay test strip is disposed within the flow control channel, and the specification in Column 5 referring to Figure 3 [00:02:10] Speaker 01: The assay sample fluid control in this embodiment of the invention is accomplished by disposing assay test strip 22 within a flow control channel. [00:02:21] Speaker 03: There's no reason to... You started with your strongest evidence, for sure, that that language and specification is the strongest evidence to support you on claim construction. [00:02:30] Speaker 03: But what about the plain claim language? [00:02:33] Speaker 03: And the plain claim language saying, for example, that the fluid has to contact the loading zone at a particular location at the, I guess, the pervious side of the flow control channel. [00:02:48] Speaker 01: At the liquid pervious side. [00:02:50] Speaker 01: Yes. [00:02:50] Speaker 01: And that would be met whether the test strip protrudes or whether it's flush width. [00:02:56] Speaker 01: In either case, it's going to contact at the opening or the liquid pervious side. [00:03:01] Speaker 03: Your view is that the claim doesn't say only at the liquid purge site. [00:03:06] Speaker 03: So do I understand correctly that when you flip this thing over, you flip it over, and if the loading zone is protruding out, it will immediately be contacted by the liquid when it's flipped over? [00:03:19] Speaker 03: Right? [00:03:20] Speaker 03: Because it's sitting outside of the channel. [00:03:21] Speaker 01: Yes. [00:03:22] Speaker 01: And in fact, the figures are a little confusing. [00:03:25] Speaker 03: There is no figure eight in the patent, even though it says this one, right? [00:03:28] Speaker 01: There's a figure three, which shows the flow control channels and the test strips disposed within with the test strips protruding. [00:03:36] Speaker 01: Now that is shown with the test strips sticking up, but in the embodiment that's claimed, which is shown finally in figure six, that figure three is turned over. [00:03:46] Speaker 01: So the flow control channels are [00:03:49] Speaker 01: are disposed with their opening toward the base, per the claim. [00:04:00] Speaker 03: You're saying figure six is flipped over? [00:04:02] Speaker 01: In figure six, what you see in figure three is flipped over. [00:04:13] Speaker 01: So the test strips [00:04:15] Speaker 01: The flow controls or channels are in the container such that their opened end is oriented toward the base. [00:04:24] Speaker 03: A dumb question. [00:04:25] Speaker 03: I thought that the specification said that you would take the whole container and flip it over, meaning that that top 45 should be on the bottom if it's flipped over. [00:04:34] Speaker 01: That's the embodiment of Figure 7. [00:04:38] Speaker 01: OK. [00:04:38] Speaker 01: And with the very end of the prosecution history, the examiner and examiner's amendment [00:04:45] Speaker 01: limited the claims to only the embodiment of Figure 6. [00:04:49] Speaker 01: So in Figure 7, yes, Figure 3 would be placed within the container as here with the test strip sticking up. [00:04:59] Speaker 01: The sample would be added and then a user would quickly turn it over and it would be like Figure 6, function like Figure 6. [00:05:09] Speaker 03: So where's the loading zone in Figure 6? [00:05:11] Speaker 03: It's down there at the bottom? [00:05:13] Speaker 01: Yes. [00:05:14] Speaker 01: And it's shown as sort of the crosshatched in figure three. [00:05:18] Speaker 01: It's at the opening of the liquid pervious side. [00:05:23] Speaker 01: And so whether the test protrudes or it's flush with, it's going to contact at the liquid pervious side. [00:05:31] Speaker 01: And in fact, when that [00:05:34] Speaker 01: At a point during the prosecution, most of the prosecution, the claim said the test strip is disposed so that the test strip is either flush with or protrudes from. [00:05:47] Speaker 01: And later in the prosecution, that limitation is removed, making the claims only broader in that respect. [00:05:54] Speaker 01: And this term, contact at the liquid pervious side, is added to make the claims read properly. [00:06:01] Speaker 01: At the same time, [00:06:03] Speaker 01: That amendment was made. [00:06:06] Speaker 01: The applicants stated in their remarks that the device of the present invention is shown in Figures 3 through 7. [00:06:13] Speaker 01: So completely inconsistent with some amendment that would exclude the preferred embodiment of Figures 3 through 7. [00:06:21] Speaker 03: Page A 11615, there's some language that says it's contrasting, of course, the tidings part. [00:06:30] Speaker 03: And it says, in contrast, [00:06:33] Speaker 03: The present invention provides a physical channel whereby the fluid may enter the channel to directly contact the test strip only through the liquid pervious side. [00:06:45] Speaker 03: What about that language only? [00:06:47] Speaker 03: There's one other location. [00:06:48] Speaker 03: It's also at page 11651. [00:06:51] Speaker 03: You have the language only in describing to the patent office how your invention operates. [00:06:58] Speaker 03: How do you respond to that? [00:07:00] Speaker 03: Why doesn't that show? [00:07:02] Speaker 03: that your invention should be limited to strips that don't protrude. [00:07:09] Speaker 01: The claims are open-ended comprising, and the sample will be delivered to the sample loading zone by entry through. [00:07:21] Speaker 01: Whether it contacts it before or not, the sample will still be delivered to the test strip by entry through that open area. [00:07:29] Speaker 03: You're saying that's the only way the fluid can enter the channel, even if the loading zone gets fluid otherwise. [00:07:36] Speaker 01: Yes. [00:07:36] Speaker 01: And the language of the sample is delivered directly to the sample loading zone of the assay test strip through a liquid pervious site. [00:07:50] Speaker 01: was mentioned also during the prosecution history when the claims recited a test strip that was either flush with or protrudes from. [00:08:01] Speaker 01: So the applicant is using that same language during prosecution when it could have been either. [00:08:06] Speaker 01: Then that limitation is removed. [00:08:08] Speaker 01: Claim can only get broader from that. [00:08:12] Speaker 01: And repeatedly, during prosecution, the applicant said the device of the present invention is shown in figures three through seven. [00:08:20] Speaker 01: The district court never acknowledged that statement in coming to its conclusion. [00:08:25] Speaker 01: The district court never acknowledged that a disclaimer or disavowal must be clear and unmistakable. [00:08:31] Speaker 03: I understand that you're right, that a disclaimer or disavowal must be clear and unmistakable. [00:08:36] Speaker 03: But is that really the standard that we would look to? [00:08:38] Speaker 03: So we're looking through intrinsic evidence to try to determine the meaning of a claim term. [00:08:44] Speaker 03: So you look at the plain claim language. [00:08:46] Speaker 03: You look at the spec. [00:08:47] Speaker 03: You look at the prosecution history. [00:08:48] Speaker 03: And your position is that when the court looks at the prosecution history, it can only rely on it if there's a clear disclaimer? [00:08:55] Speaker 03: Is that your position? [00:08:57] Speaker 01: Well, the plain and ordinary meaning controls unless there's lexicography or a disclaimer. [00:09:03] Speaker 01: And when we look at the specification, the plain and ordinary meaning per the specification disposed within would encompass something that protrudes. [00:09:13] Speaker 03: So you're saying to weigh against that strong evidence in the specification that it would have to be pretty clear? [00:09:21] Speaker 01: A disclaimer. [00:09:22] Speaker 03: I think to find a disclaimer... Do you have any cases that actually say that? [00:09:28] Speaker 01: I mean, I think the cases are legion to say that the plain and ordinary meaning of claim language controls, except if there's lexicography or [00:09:39] Speaker 01: a clear and unmistakable disclaimer. [00:09:41] Speaker 03: I think opposing counsel would say plain and ordinary meaning of the plain claim language isn't just entirely disposed within the channel, it's entirely disposed within the channel so that there's some other language that says so that the liquid comes through and enters the channel at a particular location. [00:10:00] Speaker 03: They rely on other language to take the position that the plain and ordinary meaning is not just limited to disposed within the [00:10:09] Speaker 03: Channel, correct. [00:10:11] Speaker 01: They they rely upon contact at the opening which would be met whether the test strip protrudes or not and they Delivery through they also rely upon and the applicants consistently stated that delivery through occurred Even when the claims called for the test trip being either flush with or protruding there from I mean [00:10:34] Speaker 03: Do you have more points you want to make about this claim term? [00:10:37] Speaker 03: I do want to ask you some questions about equalized pressure or equivalent pressure. [00:10:45] Speaker 01: Well, no, I turn to equalized. [00:10:49] Speaker 03: One of the things that concerns me about the equivalent pressure argument is that in the prosecution history repeatedly there's reference to the invention working because the pressure is equalized. [00:11:01] Speaker 03: What does equalized mean? [00:11:07] Speaker 01: Well, that's also in the context of the specification using only the word equilibrium in describing this concept of pressure equilibrium within and without the flow control channel. [00:11:22] Speaker 01: So I think there's six different instances where the specification uses the term equilibrium. [00:11:29] Speaker 01: Go ahead. [00:11:30] Speaker 03: I'm sorry. [00:11:31] Speaker 01: And yes, the specification does [00:11:36] Speaker 01: refer to equalized pressure, but it also refers to equilibrium. [00:11:40] Speaker 01: And if I could, for example, point the court to page 11672 of the prosecution history. [00:11:49] Speaker 01: And I think that is particularly instructive. [00:11:53] Speaker 01: On 11672, in the same paragraph, the applicant uses the term equivalent and pressure equilibrium to describe the concept of [00:12:05] Speaker 01: the ambient pressure being used to prevent excess sample fluid from flooding the test strip. [00:12:13] Speaker 01: And so we have the specification consistently using equilibrium. [00:12:18] Speaker 03: Well, you say consistently, but I can point out like five or six places where you say equalized pressure. [00:12:24] Speaker 03: So at page 11614, you say the invention utilized equalized pressure within and without the flow control chamber. [00:12:33] Speaker 03: to prevent assay sample fluid from flooding the chamber. [00:12:36] Speaker 03: And then at page 11615, we have, again, equalized pressure. [00:12:42] Speaker 02: Would you draw a distinction between equal and equalized? [00:12:49] Speaker 02: Because the other side seems to say it has to be exactly equal. [00:12:53] Speaker 02: That's their argument. [00:12:55] Speaker 02: And to me, equalized is a verb. [00:12:58] Speaker 01: Equalized refers more to a balance. [00:13:00] Speaker 01: The claims use the word equivalent, not equal. [00:13:07] Speaker 01: I mean, we were prepared to go to trial on the plain and ordinary mean of equivalent, which has a common understanding that encompasses different things that may be different, but have the same effect. [00:13:19] Speaker 01: So for example, the doctrine of equivalence. [00:13:22] Speaker 01: Equivalent, we were going to trial with the plain and ordinary meaning of equivalent. [00:13:27] Speaker 01: when the district court announced, well, I don't know why. [00:13:30] Speaker 01: I don't just define it as equal. [00:13:32] Speaker 01: Just so you know, you're in your rebuttal. [00:13:34] Speaker 01: Thank you. [00:13:35] Speaker 01: And so we briefed the issue, and then the district court ultimately concluded equivalent [00:13:42] Speaker 01: means equal full stop and instructed the jury that way and told the jury twice that you must follow the instructions. [00:13:49] Speaker 01: Now we asked as an alternative, we said, well, if you're going to go to these dictionaries and define equivalent as simply equal, well, let's look at the dictionaries where it says it's equal to or has the same effect as, which is also supported by the dictionaries that the appellees cite. [00:14:07] Speaker 01: And the district court rejected that alternative as well and then followed through with an instruction that [00:14:12] Speaker 01: changing equivalent to equal to full stop, nothing more. [00:14:16] Speaker 03: I have another question for you, which is the patent refers to repeatedly no pressure gradient, having no pressure gradient, right? [00:14:26] Speaker 03: And also, I think there's something in the claim to that effect, not that exact words. [00:14:30] Speaker 03: What does that mean? [00:14:32] Speaker 01: Eliminating a pressure gradient that would cause excess sample to flow into the channel and flood the test [00:14:38] Speaker 03: So it doesn't mean your view is no pressure gradient doesn't mean that the difference in pressure is zero. [00:14:44] Speaker 01: It's an elimination of a pressure gradient that's going to cause flooding. [00:14:49] Speaker 01: Anyway, it's a basic concept that if you have a [00:14:52] Speaker 01: a cup of water, there's a gradient of pressure as you go down. [00:14:58] Speaker 01: The pressure gets deeper. [00:15:00] Speaker 01: Someone goes in a pool, the pressure gets deeper as you go. [00:15:02] Speaker 01: So there is a pressure gradient in just a container of fluid. [00:15:06] Speaker 01: But the pressure gradient that the claims is talking about eliminating is a pressure gradient that's going to cause flooding of the test strip. [00:15:14] Speaker 03: You're relying on the language, eliminating a pressure gradient along which excess sample fluid could flow. [00:15:19] Speaker 01: Yes. [00:15:21] Speaker 03: So again, your answer is no, that doesn't mean it has to be zero difference in pressure. [00:15:27] Speaker 03: Pressure gradient has a different meaning. [00:15:28] Speaker 03: I'm asking because I didn't really see anything in the record that told me what a pressure gradient is. [00:15:34] Speaker 01: It's a pressure gradient that's going to cause flow of fluid, excess sample fluid. [00:15:39] Speaker 01: And so we submit that the district court erred by just simply changing equivalent to equal to, which required some sort of mathematical precision to the prejudice of Rembrandt. [00:15:52] Speaker 01: There's no further questions. [00:15:53] Speaker 01: I'll preserve whatever I might have left. [00:15:55] Speaker 02: OK. [00:16:04] Speaker 02: I'll let you have two minutes. [00:16:06] Speaker 02: I'll let you have two minutes on rebuttal. [00:16:21] Speaker 00: Thank you, Judge Wallach, and may it please the court. [00:16:23] Speaker 00: Jason Wilcox on behalf of the Lear. [00:16:26] Speaker 00: To answer your question, Judge Stoll, about whether the prosecution is only relevant if there is a disavowal, I think the case that you're looking for, which we cite in our briefs, is Aventis, that's 715 F3 at 1373. [00:16:41] Speaker 00: And it makes clear that the prosecution history is relevant for providing the context for the claim so that you can understand what the ordinary meaning is to a person of skill in the art. [00:16:50] Speaker 00: So we don't have to win on disclaimer here for the prosecution history to be relevant, although we do think that there was a clear and unmistakable disclaimer by removing the protrudes from language from the claim. [00:17:02] Speaker 00: But let me start with the plain language. [00:17:03] Speaker 02: Let me start with some questions. [00:17:05] Speaker 02: OK. [00:17:05] Speaker 02: Thank you. [00:17:07] Speaker 02: On page 45 of the blue brief, Rembrandt says, quote, there's no debate the preferred embodiment shown in the patent. [00:17:16] Speaker 02: figures includes protruding test strips. [00:17:20] Speaker 02: Do you dispute that? [00:17:22] Speaker 00: No, I agree that the embodiments in figures three through seven show protruding test strips. [00:17:26] Speaker 00: OK. [00:17:27] Speaker 02: On page 21 of the red brief, you say, quote, flippantly dismissing the need for such measurements, Rembrandt's expert asked, why would I want to measure pressure? [00:17:39] Speaker 02: Why is that flippant? [00:17:41] Speaker 00: Well, I think in the context of what he is saying, he is being flippant. [00:17:44] Speaker 00: He's being, he's responding to our expert's testimony where expert has measured the pressures inside the and outside the flow control channels, explained why those are important and why it shows that there is not equivalent pressures here, but instead different pressures that do create a pressure gradient. [00:18:00] Speaker 00: And his response is, well, why would I want to measure pressure? [00:18:02] Speaker 00: Well, you'd want to measure pressure to know whether the pressures are equivalent, whether the pressures are in equilibrium with each other. [00:18:08] Speaker 00: and whether the pressures are equal to each other. [00:18:11] Speaker 02: On page 23 of the red brief, you say due to its design, the i-cup would not function properly with equal pressures. [00:18:24] Speaker 02: It requires different pressures. [00:18:29] Speaker 02: Where's that shown? [00:18:31] Speaker 00: So I think that's shown at several places, Your Honor. [00:18:33] Speaker 00: Our expert testified at appendix 10-976 [00:18:38] Speaker 00: 10.977 that the i-cup requires that. [00:18:41] Speaker 00: He said the same thing at 10.969 to 10.970. [00:18:47] Speaker 00: His entire testimony was the i-cup needs a pressure gradient, and it needs different pressures, and that the reason why you don't get flooding is because there's a greater pressure inside the flow control channel than outside the flow control channel that stops the fluid from flowing between the outside and the inside. [00:19:05] Speaker 00: If they're equalized, [00:19:08] Speaker 00: Is there a greater pressure? [00:19:10] Speaker 00: If they are equalized, there isn't a greater pressure. [00:19:12] Speaker 00: If they're equalized, there is no pressure gradient. [00:19:15] Speaker 00: And the pressures are the same as the district court recognized in its construction. [00:19:20] Speaker 00: That's what equalized means, is the dictionaries we cite, Judge Wallach, and also the cases. [00:19:24] Speaker 00: There's a difference between equal and equalized, is there not? [00:19:27] Speaker 00: I agree that they are different words. [00:19:29] Speaker 00: They share the same root. [00:19:30] Speaker 00: And if you look at the dictionaries that we cite, [00:19:33] Speaker 00: equalize as to meaning equal in value, equal in force. [00:19:39] Speaker 00: So while one is a verb and one is, I think, a noun, they have the same meaning as the district court recognized and as courts have recognized, including the Trist Pharmaceutical case that we cite and the Bullard versus General Electric case that we cite in our briefs. [00:19:52] Speaker 00: And the three or four dictionaries that we also cite in our briefs all treat equivalent as a synonym for equal. [00:19:59] Speaker 00: And the applicants themselves, if you look at appendix [00:20:03] Speaker 00: You know a lot of questions. [00:20:06] Speaker 02: I know my brother and sister in due to okay Don't run on too much on page 35 of the Redbury You say that the fluid would instead enter the strip through the protruding portion of the sample loading zone You didn't cite anything to support that what's your record evidence? [00:20:26] Speaker ?: I? [00:20:26] Speaker 00: Well, I think you're right. [00:20:28] Speaker 00: We don't cite anything to say that because this is ultimately claim construction, Judge Wallach, but I think it stands to reason. [00:20:32] Speaker 00: If you have a protruding strip that sticks, when you have this flipped over, as my friend on the other side said, so that it's actually pointing down, the protruding strips are at the bottom. [00:20:42] Speaker 00: So if you have a protruding strip, the first place it's going to contact the liquid that's inside the cup is at that protrusion. [00:20:50] Speaker 02: OK, let me get to what bothers me a lot, and that is in the yellow brief, [00:20:56] Speaker 02: Rembrandt says, finally, it's worth noting that Allaire states, quote, and they're citing page 39. [00:21:07] Speaker 02: It is unclear whether applicants even recognize their amendments would exclude their preferred embodiment from the scope of the claims. [00:21:17] Speaker 02: And they say then, of course, applicants did not recognize any exclusion in their preferred embodiment. [00:21:24] Speaker 02: They consistently said the opposite. [00:21:26] Speaker 02: And then they go on to say, hey, that's not a disclaimer in any case. [00:21:32] Speaker 02: And it seems to me that's a huge hole in your argument. [00:21:35] Speaker 02: How do you deal with that? [00:21:36] Speaker 00: Well, I think that we deal with that in two ways, Judge Wallach. [00:21:39] Speaker 00: I think the first way is they say that figures three through seven displays the invention in three places. [00:21:46] Speaker 00: Two of those happen before they remove the protruding language. [00:21:49] Speaker 00: The third place where they say it is at appendix 11671. [00:21:52] Speaker 00: That is after the examiners rejected the claims twice. [00:21:56] Speaker 00: And they're trying to explain to the examiner why they can still quote, traverse his rejection, why they think his rejection is wrong. [00:22:03] Speaker 00: But then on the very next page, 11672, they say that they're nonetheless going to amend the claims to expedite prosecution. [00:22:09] Speaker 00: And then they make the amendment that removes the protruding strips. [00:22:13] Speaker 03: It also removed flush strips, right? [00:22:15] Speaker 00: It also removed flush from the strips. [00:22:16] Speaker 03: So would you take this position that this invention doesn't include flush strips? [00:22:21] Speaker 00: So I wouldn't, Judge Stolen. [00:22:24] Speaker 00: And the reason why I wouldn't say, I agree, it's a fair question. [00:22:28] Speaker 00: The reason why I wouldn't say that is because [00:22:34] Speaker 00: The language that's there, which says that the strip is disposed within the flow control channel so that the sample fluid contacts the loading zone at the liquid pervious side of the channel, means that it is flush. [00:22:44] Speaker 00: That's what the word at is doing in that language. [00:22:46] Speaker 00: So it still covers the flush version of the claims. [00:22:49] Speaker 00: It just doesn't cover the protruding version of the claims. [00:22:52] Speaker 00: And the reason why they made that change, once again, if you look at appendix 11672, is they wanted to emphasize that the fluid [00:23:01] Speaker 00: comes into direct contact with the sample fluid without going through any intermediate structure. [00:23:06] Speaker 03: Like a wicking material. [00:23:07] Speaker 00: Like a wicking material, yes. [00:23:09] Speaker 03: As in tidings. [00:23:10] Speaker 00: As in tidings. [00:23:10] Speaker 00: But the examiner also recognized at 11-6-34 that tidings itself, as the claims were originally written and under Rembrandt's current reading of the claims, also allows for this contact at the sample loading zone. [00:23:24] Speaker 00: And because the claims, as Rembrandt says, aren't our comprising claims, if you take their reading, the exact rejection, the examiner gated 11-634, would still apply. [00:23:33] Speaker 00: His argument was, I understand that you think there's this wicking material, and it's different. [00:23:38] Speaker 00: But if you fill the tidings device up enough, it will still come into direct contact without that wicking material, because tidings has protruding strips. [00:23:46] Speaker 03: I think Judge Wallach has a few more questions. [00:23:49] Speaker 02: OK. [00:23:50] Speaker 02: On page 37 of the red brief, [00:23:53] Speaker 02: You say that contact quote contact cannot occur in the channel if the test strip and its Sample loading zone extend outside the channel you don't provide any citation For that assertion what evidence in the record supports that statement. [00:24:11] Speaker 00: I think it's the same explanation I gave a minute ago judge walk which is that when you have the cup with a test trip sticking down and protruding out where they're going to contact the sample loading zone and [00:24:21] Speaker 00: is at protrusion. [00:24:22] Speaker 00: They're not going to contact the sample loading zone at the liquid pervious side and they're not going to be delivered to the sample loading zone at the liquid pervious side. [00:24:32] Speaker 00: What's the liquid pervious side? [00:24:34] Speaker 00: The liquid pervious side is [00:24:37] Speaker 00: So in figure six, it would be the bottom. [00:24:39] Speaker 00: It is an opening in the flow control channel that is where liquid can come into the flow control channel, whereas the other sides are liquid impervious because they're generally made of plastic. [00:24:52] Speaker 00: So where it will contact the sample loading zone, if you have a protruding strip, will be outside of that liquid pervious end. [00:25:00] Speaker 03: Why would it be in both places? [00:25:03] Speaker 00: Well, so I think it could be in both places, but I think when you look at the prosecution history... Is that it would be in both places? [00:25:08] Speaker 00: I think that for contacts, I think that it would be possible to potentially read that claim that way if there wasn't the prosecution history where they are making these amendments. [00:25:17] Speaker 02: But I think the even stronger... Your friend says that they're broadening, not narrowing. [00:25:22] Speaker 00: Well, I think that when you're making amendments in response to three prior art rejections, it's very unlikely that you are broadening the scope of your claims to overcome prior art. [00:25:30] Speaker 03: But it could be broadening it in [00:25:32] Speaker 03: context that's different than tidings, right? [00:25:36] Speaker 03: It could be that they narrowed the claim to distinguish tidings in a particular way that doesn't even have any relevance to the infringement issue here in this case, right? [00:25:48] Speaker 00: That is possible, but I think that when you combine it with their statement at 11672 where they say the reason they're making the amendment is to expedite prosecution Right to expedite prosecution to make it clear that they're not having a capillary action of having the fluid go up the wicking sample Wicking material right well, but if you're broadening the claims you're not expediting prosecute even if you're just broadening a single limitation You're not expediting prosecution because now you've opened up more prior art the examiner is gonna have to search for [00:26:16] Speaker 03: But I also think that this court has said, in cases such as Norian and such as the Youship case, that the fact that... Do you think that all... Your statement you made about how people prosecute patents, do you think that's how it always is? [00:26:32] Speaker 03: That's a routine rule everyone follows? [00:26:34] Speaker 03: Do I never broaden your claims? [00:26:35] Speaker 03: Or you open up the prior art that the examiner has to consider? [00:26:39] Speaker 00: I don't think that that's a rule that applies across the board in every case. [00:26:42] Speaker 03: I don't know that I could fairly import that into any patent prosecution history that I'm reviewing. [00:26:49] Speaker 00: But I think you can import it when they say at 11672 that they are trying to expedite prosecution. [00:26:54] Speaker 00: If they didn't say that, I think that it would be hard to draw that generalization. [00:26:58] Speaker 00: But where they make that specific statement, [00:26:59] Speaker 03: Well, shouldn't we really be looking at the language we're in the flow control channel, you know, the language about disposed within the flow control channel so the sample fluid contacts the sample loading zone and a liquid pervious side of the flow control channel? [00:27:12] Speaker 03: That's really what we should be focusing on that language and what it means, right? [00:27:16] Speaker 00: I agree. [00:27:16] Speaker 00: You should be focusing on that language and what it means. [00:27:18] Speaker 03: Instead of really focusing on what language they removed, which in this case, because they removed both flush and protruding from. [00:27:26] Speaker 00: Well, I disagree a little bit, Judge Toll, because I think that that sheds light on what that language that is now in the claims means. [00:27:33] Speaker 00: The prosecution history sheds light on that. [00:27:35] Speaker 00: And I think that where they had the protrudes from language in there, which tidings also has protruding strips, and then they chose to take it out after multiple prior art rejections, including a prior art rejection at 11634, where the examiner said that [00:27:48] Speaker 00: just having an intermediate structure or getting rid of an intermediate structure is not enough because tidings can also deliver the fluid without using an intermediate structure that that language is telling. [00:28:00] Speaker 00: I'm not aware of a case from this court where someone has removed language from a claim and replaced it with different language and the court has said, [00:28:07] Speaker 00: that that didn't affect the scope of the claims. [00:28:10] Speaker 00: This court has said in cases like Ajinomoto, that when the words change, this court presumes that that changes the scope of the claims. [00:28:16] Speaker 00: And this court has also said in cases like Norian and Youship, [00:28:20] Speaker 00: that even if you think that the disclaimer wasn't necessary to overcome the prior art, this court is, there's no principle of patent law, that the disclaimer is limited to the amendments that they had to absolutely make to overcome the prior art. [00:28:33] Speaker 03: OK. [00:28:33] Speaker 03: I understand your position. [00:28:34] Speaker 00: Thank you. [00:28:34] Speaker 00: OK. [00:28:36] Speaker 00: If there are any questions about the equivalent to- I think that Judge Wallach has more questions. [00:28:39] Speaker 02: I do, as a matter of fact, yes. [00:28:42] Speaker 02: On page seven of the yellow brief, Rembrandt says that you assert, and that's it, your assertion is that page [00:28:50] Speaker 02: 14 of the RedBerry. [00:28:55] Speaker 02: Quote, the applicants emphasized throughout prosecution of the 019 patent that protecting against oversaturation by placing the strips entirely within the flow channel was a key point of novelty of the prior art. [00:29:10] Speaker 02: Rembrandt says that statement is, quote, false and supported by no record site. [00:29:16] Speaker 02: Where exactly in the record did [00:29:18] Speaker 02: Rembrandt, make the emphasized statements you allege. [00:29:21] Speaker 00: Well, so I think that where you would find that is appendix 11686, where they say the claims as amended, and this is with removing the protruding strips language, the claims as amended make clear that the invention approves upon prior devices by preventing the flooding of test strips, by constructing a flow control channel around the strips, and then goes on to say in the next sentence, [00:29:43] Speaker 00: that in this respect, the pervious side of the channel will limit the rate at which sample will flow into the channel to contact the sample loading zone. [00:29:51] Speaker 00: Now, if by constructing it around the strips, so it limits the flow into the channel to contact the sample loading zone, I think that that is what they are saying, Judge Wallach. [00:30:02] Speaker 00: But once again, even if you don't think that that's directly on point, I think the very fact that they removed the language from the claims is enough under Norian and Youship in this court's cases. [00:30:12] Speaker 00: I want to make one quick point on equivalent, too, unless you have other questions about this. [00:30:16] Speaker 02: Lots of other questions, actually, yeah. [00:30:17] Speaker 00: OK. [00:30:18] Speaker 02: On page 39 of the red brief, you make the argument that it is unclear whether the applicants even recognized their amendments would exclude the device shown in figures three to seven. [00:30:32] Speaker 02: The same question I asked before, in effect. [00:30:35] Speaker 02: How can you argue there was a clear and unmistakable disclaimer if it's unclear? [00:30:39] Speaker 00: Well, I think that it's clear and unmistakable that they removed protruding test strips. [00:30:42] Speaker 00: Whether they recognize that that would exclude figures three through seven, I don't know whether they recognize that or not. [00:30:49] Speaker 00: But what I would know is that when they removed protruding test strips from the claim, that was a clear and unmistakable disclaimer. [00:30:54] Speaker 00: And ultimately, disclaimer and the construction of the claim is objective, not subjective, based on what they. [00:31:00] Speaker 02: OK, let me ask you a housekeeping question. [00:31:01] Speaker 00: OK. [00:31:02] Speaker 02: Page one of the gray brief you say, if this court remains for a new trial on infringement, it should also order a new trial on invalidity. [00:31:09] Speaker 02: Did you ask the district court for a new trial on invalidity? [00:31:12] Speaker 00: We didn't ask the district court for a new trial on invalidity because we had won and we didn't need to. [00:31:18] Speaker 00: And this court's cases haven't required you to move for a new trial if you're only asking for a conditional new trial if a claim construction that you've already adopted is overturned. [00:31:28] Speaker 00: If I can just make the one point I wanted to make about equivalent versus equal agreement. [00:31:32] Speaker 00: I'll give you 30 seconds if I have. [00:31:37] Speaker 00: My opponent on the other side draws a distinction between equilibrium and equivalent and equal, but if you look at appendix 11.6.86 and appendix 11.6.11, the claims themselves use equilibrium and equalizer as interchangeable terms. [00:31:52] Speaker 00: What they say is that the inside and outside pressure stays in substantial equilibrium and, quote, [00:31:57] Speaker 00: In this respect, the liquid pervious side of the channel serves as a pressure equalizer. [00:32:01] Speaker 00: And that's because the definition of equilibrium is equally balanced. [00:32:05] Speaker 00: So whether it's equilibrium, whether it's equivalent to, or whether it's equal, the claims require exactly what the district court said. [00:32:14] Speaker 00: If there are no further questions, thank you, Your Honors. [00:32:18] Speaker 02: Well, your time's up. [00:32:28] Speaker 01: Thank you, Your Honor. [00:32:32] Speaker 01: I just wanted to clarify a point because of the beginning of my friend's argument. [00:32:36] Speaker 01: They talked about the prosecution history being relevant. [00:32:40] Speaker 01: I wasn't suggesting in any way that the prosecution history was not relevant. [00:32:44] Speaker 01: I was just saying that if we're going to find a disclaimer of the plain and ordinary meaning of the language, a disclaimer of the preferred embodiment, you're going to have to find a clear and unmistakable disclaimer in the prosecution history. [00:32:57] Speaker 01: Now with respect to the test trips being disposed within the flow control channel, the claims call for the sample fluid contacting it at the opening. [00:33:07] Speaker 01: And it's that contact at the opening that allows the flow control channel to function as a flow control channel. [00:33:12] Speaker 01: The liquid closes off the opening, and it prevents further entry of fluid except by capillary action of the test trip. [00:33:22] Speaker 01: So controlled entry of fluid that is going to allow the test to run. [00:33:26] Speaker 01: Now, with respect to the amendment to remove flush with or protrudes from, that did change the claim language. [00:33:35] Speaker 01: When those requirements were in, there could be two ways the test strip was disposed within the flow control channel. [00:33:42] Speaker 01: It would have to be either flush with or protrudes from. [00:33:44] Speaker 01: By removing those, it's only broadened the term disposed within the flow control channel. [00:33:52] Speaker 01: How else could it be? [00:33:54] Speaker 01: It could protrude. [00:33:55] Speaker 01: It could be within. [00:33:56] Speaker 01: What's another way? [00:33:59] Speaker 01: If it would contact, but it wouldn't be exactly flush with. [00:34:04] Speaker 01: So there was flush with and protrudes were the two options. [00:34:08] Speaker 01: They were removed. [00:34:09] Speaker 01: It was simply disposed within so that it contacts at the opening. [00:34:13] Speaker 03: What if the test strip was a little bit shorter? [00:34:15] Speaker 03: Yeah. [00:34:16] Speaker 03: That would be the only thing that I could imagine would be if it didn't actually [00:34:23] Speaker 03: It was shorter, but I guess it wouldn't matter when you flip the cup over or when it's facing down. [00:34:28] Speaker 01: And if the pressure allowed the fluid to enter enough to contact it and close it off and operate as a flow control channel. [00:34:36] Speaker 01: And consistently throughout the prosecution industry, tidings was distinguished based upon flow control channel and the lack of intermediate structure, not about protruding test strips. [00:34:45] Speaker 01: And if I can make one point on equalize, [00:34:47] Speaker 01: I'll give you 15 seconds. [00:34:49] Speaker 01: Go ahead. [00:34:50] Speaker 01: We cite on the yellow brief at page 22 a dictionary of equalize, which refers to equilibrium, our proposed construction. [00:34:59] Speaker 01: Thank you, Your Honors. [00:35:00] Speaker 01: Thank you. [00:35:01] Speaker 01: This matter will stand submitted.