[00:00:02] Speaker 03:
Our next case for argument today is 20-2200, Best Way versus Intech Recreation Corp.

[00:00:11] Speaker 03:
Mr. Arts, please proceed when you're ready.

[00:00:43] Speaker 02:
Good morning, Your Honors.

[00:00:44] Speaker 02:
May it please the Court.

[00:00:46] Speaker 02:
The board below improperly construed the concave limitation.

[00:00:50] Speaker 02:
It did so by assigning it a meaning, contrary to its ordinary meaning.

[00:00:56] Speaker 02:
But nothing in the specification, nothing in the file history, supports departing from the presumption that every term in a claim should be given its ordinary meaning.

[00:01:07] Speaker 02:
The board did so based on two things.

[00:01:09] Speaker 02:
It did so based on the inclusion of the phrase that is in the claim, not in the specification, as well as before.

[00:01:16] Speaker 03:
Council, maybe you're not aware of it, but the claims are part of the specification.

[00:01:20] Speaker 02:
They are, Your Honor.

[00:01:21] Speaker 02:
But as what the board said is it utilized the claim and not the specification to define the term.

[00:01:29] Speaker 02:
You have to start with the ordinary meaning in the claim, but you have to use the specification to help understand what it is that terms in the claim mean.

[00:01:38] Speaker 04:
So are you saying that the phrase that is is meaningless in the claim?

[00:01:42] Speaker 02:
I'm not saying that at all, Your Honor.

[00:01:44] Speaker 02:
What I'm suggesting is you need to look to the specification to see what that concave limitation as used in the claim actually means.

[00:01:53] Speaker 02:
And what that is when you look at the specification means there's a causal relationship.

[00:01:58] Speaker 02:
You can't look at the claim and determine that the term concave has no meaning.

[00:02:04] Speaker 02:
They gave the term concave a meaning of a lateral displacement.

[00:02:08] Speaker 02:
That's a flat, a convex, that effectively reads the term concave out of the claim entirely.

[00:02:14] Speaker 04:
Well, you could, in a claim, define a term even if there are things in the specification or the written description that are inconsistent with what your definition is, right?

[00:02:28] Speaker 04:
You can be your own lexicographer.

[00:02:30] Speaker 02:
You can be your own lexicographer, Your Honor.

[00:02:32] Speaker 02:
There's nothing in the specification or in the intrinsic record here that indicates an intent by the patent owner to define concave as something other than its ordinary meaning.

[00:02:42] Speaker 03:
Well, except the claim language.

[00:02:44] Speaker 02:
Well, Your Honor, I would suggest that the claim language, as both the Board and Intex noted, tracks actual language in the specification.

[00:02:54] Speaker 03:
So just, I just want to be clear.

[00:02:56] Speaker 03:
You have to stop saying specification.

[00:02:57] Speaker 03:
The Board didn't make the mistake that you're making.

[00:03:00] Speaker 03:
It says we make the following findings regarding the written description disclosure in the specification.

[00:03:06] Speaker 03:
So if you would please be precise and refer to the written description when you seek to exclude the claims.

[00:03:11] Speaker 03:
That would be helpful to me.

[00:03:12] Speaker 02:
Apologize your honor.

[00:03:14] Speaker 02:
Let's look at the written description the summary of the invention specifically.

[00:03:18] Speaker 02:
Let's look at column two and I want to point to the places in the specification in the written description where the term concave is used so we can help understand how the term concave is used in the claim language and I would like to use refer the court to column two and in column two

[00:03:39] Speaker 02:
it utilizes the term concave, specifically with the phrase extends beyond.

[00:03:44] Speaker 02:
That the concave relationship, which is the spatial relationship at the bottom of the bed, that provides the stability of the bed, the relationship between the lower main chamber and the peripheral auxiliary chamber, is defined as being concave.

[00:03:59] Speaker 02:
And if we're going to focus on what that is in the claim.

[00:04:01] Speaker 03:
Is there a particular language in column two you'd like me to add?

[00:04:04] Speaker 02:
Yes, Your Honor, I'm sorry.

[00:04:05] Speaker 02:
Column two lines.

[00:04:09] Speaker 02:
13 through 18, that that phrase tracks the language of the claim.

[00:04:14] Speaker 02:
And then the immediately following sentence beginning at line 18 that talks again about the peripheral auxiliary chamber being raised by the lower main air chamber such that the peripheral auxiliary chamber extends downward to contact the ground.

[00:04:35] Speaker 02:
And I would also like to refer the court to column 3.

[00:04:38] Speaker 02:
Column 3 also uses the same that is language.

[00:04:43] Speaker 02:
Column 3 utilizes, it says it's its with reference to the lower surface.

[00:04:50] Speaker 02:
What line are you on?

[00:04:52] Speaker 02:
I'm sorry, line 24.

[00:04:54] Speaker 02:
Column 3.

[00:04:56] Speaker 02:
Its outer surface, and this is in reference to the outer surface of the lower main air chamber, is concave with respect to the outer surface of the loop.

[00:05:06] Speaker 02:
of the peripheral auxiliary air chamber.

[00:05:08] Speaker 02:
That is, surface C of peripheral auxiliary air chamber B1 is higher than or extends beyond.

[00:05:18] Speaker 04:
But it is possible to move laterally and not extend beyond the frame, right?

[00:05:28] Speaker 04:
which is what they're talking about here.

[00:05:30] Speaker 02:
Well, sure, it's possible, but the lateral displacement is already in the claim, Your Honor.

[00:05:35] Speaker 02:
The lateral displacement, the claim talks about an oblique extending strip.

[00:05:40] Speaker 02:
The bed has an upper chamber and a lower chamber, and the oblique extending strip is placed in the lower chamber.

[00:05:46] Speaker 02:
It connects from the side peripheral wall and extends down to the bottom wall.

[00:05:51] Speaker 02:
So that oblique extending strip is creating this peripheral auxiliary chamber

[00:05:55] Speaker 02:
within the lower chamber.

[00:05:57] Speaker 02:
And as the name suggests, periphery, it's already around the lower main air chamber.

[00:06:02] Speaker 02:
So to then interpret the next limitation about the peripheral auxiliary chamber extending beyond, it's already at the periphery.

[00:06:12] Speaker 02:
So to interpret it as saying, okay, well, now it extends beyond the bottom surface, the claim already tells us it's already there.

[00:06:19] Speaker 02:
So the only limitation or the only interpretation that is consistent with both the word concave and extends beyond is a construction that imports some sort of vertical arrangement.

[00:06:33] Speaker 02:
which is consistent with the ordinary meaning of concave.

[00:06:37] Speaker 02:
Because every surface that is concave is going to have the outer edges, the outer periphery, extend beyond.

[00:06:45] Speaker 02:
But not every surface that extends beyond is going to be concave.

[00:06:49] Speaker 02:
Under this interpretation, you have a flat surface.

[00:06:52] Speaker 02:
You can have a convex surface that extends beyond.

[00:06:55] Speaker 02:
To interpret the term as the board did,

[00:06:58] Speaker 02:
The concave limitation to read out the term concave eliminates the term concave from the claim.

[00:07:06] Speaker 04:
But you're saying so that the oblique extending strip can allow for lateral extension.

[00:07:13] Speaker 04:
What is wrong with the claim actually defining itself, defining the claim to allow for that possibility?

[00:07:22] Speaker 02:
Well, where the board erred was suggesting that it could be lateral extension only.

[00:07:28] Speaker 03:
the the the construction that the board had is it could be vertical the board gave it the broadest reasonable construction which is extends beyond could be either extends beyond vertically or extends beyond horizontally because the claim itself doesn't limit it one way or the other so the board didn't exclude any of the embodiments that are disclosed it construed the claim broadly to include all of them well with all due respect I disagree I don't think that the board

[00:07:57] Speaker 02:
analyze the claim properly.

[00:07:58] Speaker 02:
When the argument is that we're reading limitations into the claim, no we're not.

[00:08:03] Speaker 02:
We're asking the court to give proper definition to the word concave as used in the claim.

[00:08:10] Speaker 02:
And how do we look at what concave is?

[00:08:12] Speaker 02:
We've talked about what's in the written description.

[00:08:14] Speaker 02:
But I think it's also important to look at what the inventors indicated in the background of the invention were problems.

[00:08:21] Speaker 03:
But you didn't find it in the claim.

[00:08:24] Speaker 03:
You chose to say concave, comma, that is boom.

[00:08:29] Speaker 03:
And you gave a definition.

[00:08:31] Speaker 03:
You gave it an express definition in the claim.

[00:08:33] Speaker 03:
You chose to do that.

[00:08:36] Speaker 03:
And your definition is in fact broader than and encompasses all of the embodiments disclosed in the spec.

[00:08:42] Speaker 03:
Now, you want to narrow that definition.

[00:08:45] Speaker 02:
I don't agree, Your Honor.

[00:08:47] Speaker 02:
Even accepting Your Honor's argument that that serves as a definition, you have to look at what it is.

[00:08:54] Speaker 02:
You can have a concave structure that extends beyond.

[00:08:58] Speaker 02:
It extends downwardly.

[00:09:00] Speaker 02:
But you can't have an extend beyond in all instances that is concave.

[00:09:05] Speaker 02:
So to find that that is language serves to change the ordinary meaning.

[00:09:11] Speaker 02:
When there's nothing in the written description and nothing in the file history that suggests that, in fact, if you look at that same language of column three in the specification that says is higher than or extends beyond, and that's at line 27,

[00:09:29] Speaker 02:
In the instances where the applicant during prosecution in the clarifying amendment inserted extends beyond into the claim, the only place where extend in the detailed description, the only place where extends beyond appears in the detailed description is as a parenthetical defining or modifying higher than.

[00:09:49] Speaker 04:
So why change the claim?

[00:09:51] Speaker 04:
Why not just leave is higher than?

[00:09:53] Speaker 02:
For the very same reason that the board noted in footnote seven is that the higher than orientation created some ambiguity as to which direction the raising or which direction the displacement was occurring.

[00:10:06] Speaker 04:
But the examiner didn't say that during the course of prosecution.

[00:10:09] Speaker 02:
No, but what the examiner noted, Your Honor, was when they allowed the claims in the first instance, he specifically referenced and cited prior art that he wasn't applying, but that he thought was relevant.

[00:10:20] Speaker 02:
That same prior art is the very same prior art

[00:10:23] Speaker 02:
cited by the applicant in the background and shown in figures four, five, six, and seven, which as the examiner noted, had protruding stabilizing structure.

[00:10:33] Speaker 02:
So the examiner knew what it was that the invention was.

[00:10:36] Speaker 04:
So are you saying extends beyond is not broader than higher than?

[00:10:40] Speaker 02:
in a vacuum extends beyond is broader than higher than.

[00:10:44] Speaker 02:
I'm not suggesting that the ordinary meaning of extends beyond in all instances equates to higher than.

[00:10:50] Speaker 02:
What I'm suggesting is as used here in the claim, as interpreted by the detailed description, the only instance where extends beyond appears is

[00:11:03] Speaker 02:
parenthetical to after higher than in relation to describing an arrangement where the peripheral auxiliary chamber extends beyond the lower surface of the bed to contact the ground and to provide the stability, which is what the patent and what the invention was designed to do was to provide stability in a manner that was not protruding beyond the... And doesn't the claim as construed by the board expressly cover that embodiment disclosed in column three?

[00:11:36] Speaker 02:
The answer is only yes.

[00:11:39] Speaker 02:
I can't say no.

[00:11:40] Speaker 02:
Well, in some regards, no, Your Honor.

[00:11:42] Speaker 02:
To the extent that the construction reads out the vertical, and you can have a construction that is just a flat bed across the bottom, that's not concave.

[00:11:53] Speaker 03:
How does this construction read out the vertical?

[00:11:56] Speaker 03:
This construction by the board allows both horizontal and vertical to meet the extents beyond limitation.

[00:12:03] Speaker 03:
So I don't see how you can actually stand in front of me and argue that the construction by the board reads out the embodiment in column three.

[00:12:17] Speaker 03:
If you have a construction that says the outer surface of the peripheral auxiliary chamber... Under the board's construction, would you be able to assert this claim for infringement against something under the board's construction that has extending beyond in the vertical direction?

[00:12:32] Speaker 02:
Yes.

[00:12:34] Speaker 03:
That's the embodiment in the claim.

[00:12:36] Speaker 02:
But what it does, like the TF3 case, is it interprets the claim not taking into account what the invention is such that the claim covers a lateral-only construction.

[00:12:48] Speaker 04:
But it doesn't say only.

[00:12:50] Speaker 02:
The construction says,

[00:12:52] Speaker 02:
The outer surface of the peripheral auxiliary air chamber extends either vertically and or laterally.

[00:12:58] Speaker 02:
So the board's construction covers a lateral only.

[00:13:03] Speaker 02:
That's a flat bed.

[00:13:05] Speaker 02:
And that's what the prior art was that the board relied on to invalidate the claims.

[00:13:10] Speaker 02:
There was no raised structure.

[00:13:12] Speaker 02:
It was a flat bed across its surface.

[00:13:15] Speaker 02:
And it's found that it met this limitation because the peripheral auxiliary chamber was located outside

[00:13:22] Speaker 02:
The lower main air chamber just like the claim defines with respect to the oblique extending stripers It's already there so effectively while they said Vertical could be part of the construction.

[00:13:34] Speaker 02:
It's not required

[00:13:36] Speaker 02:
And that's where I have the issue with the board's construction.

[00:13:39] Speaker 02:
I don't believe that lateral is required simply because the periphery, the bed footprint is defined by the side of the bed called the periphery sheet.

[00:13:52] Speaker 02:
And the oblique strip contacts the inner surface of that and extends inwardly.

[00:13:56] Speaker 02:
So by definition, the peripheral auxiliary chamber is going to be within the footprint of the bed.

[00:14:01] Speaker 03:
Do you want to save any of your time?

[00:14:02] Speaker 02:
Yes, I see my time is up.

[00:14:03] Speaker 02:
Thank you.

[00:14:04] Speaker 03:
OK, Mr. Carter?

[00:14:22] Speaker 01:
Thank you, Your Honors.

[00:14:24] Speaker 01:
May it please the Court.

[00:14:26] Speaker 01:
The P tab construed two terms.

[00:14:30] Speaker 03:
Sorry.

[00:14:33] Speaker 03:
Okay, go ahead.

[00:14:34] Speaker 03:
Please proceed.

[00:14:36] Speaker 01:
Yes, thank you, Your Honors.

[00:14:37] Speaker 01:
May it please the Court.

[00:14:38] Speaker 01:
The P tab construed two terms and found that all claims of the 866 patent are invalid based on multiple obviousness combinations.

[00:14:48] Speaker 01:
Best Way doesn't challenge any part of the obviousness findings and only challenges the one claim construction, the concave limitation.

[00:14:56] Speaker 01:
The claim language is that concave is defined by extends beyond, and that is how the PTAB correctly arrived at its claim construction.

[00:15:07] Speaker 01:
At bottom,

[00:15:08] Speaker 01:
All of Bestway's arguments turn the claim language on its head by requiring Extends Beyond to be defined by Concave.

[00:15:19] Speaker 01:
Bestway's attempt to rewrite the claim in this and other manners is improper in the fundamental flaw.

[00:15:25] Speaker 03:
I mean, I think their argument would be that Extends Beyond means higher, right?

[00:15:32] Speaker 03:
It has to go higher vertically.

[00:15:34] Speaker 03:
and they point to column three where they say is higher than, or in parentheses, or extends beyond.

[00:15:41] Speaker 03:
Why isn't that a definition for the word extends beyond that requires vertical, not just horizontal?

[00:15:47] Speaker 01:
So that particular section in column three says higher than and then uses the term or, which is an alternative.

[00:15:55] Speaker 03:
No, it doesn't.

[00:15:56] Speaker 03:
It says higher than and then in parentheses says or extends beyond, which reads to me like definitional and not an alternative, right?

[00:16:04] Speaker 03:
Why would there be parentheses?

[00:16:06] Speaker 03:
If it was an alternative, you wouldn't use parentheses.

[00:16:09] Speaker 01:
Well, I look at they're turning or into that is.

[00:16:13] Speaker 01:
And to me, or, if I'm looking at I'm going to do A or B,

[00:16:17] Speaker 01:
I'm going to do one or the other as alternatives, not A. And then whether or not it's in parentheses, I can do B instead.

[00:16:27] Speaker 01:
And I also think that if you look at the totality of the intrinsic evidence, which includes the claims, the written description, and the file history, we have every time concave is used, the term that is is used, along with the term extends beyond.

[00:16:48] Speaker 01:
And that happens in the abstract.

[00:16:51] Speaker 01:
It happens in column two, lines 13 through 17.

[00:16:54] Speaker 01:
It happens in column three.

[00:16:57] Speaker 04:
But why couldn't we interpret that is as simply establishing a cause and effect relationship between the concave spatial relationship and the extension beyond?

[00:17:09] Speaker 04:
I mean, if you're making it flat, it's not concave anymore, right?

[00:17:15] Speaker 01:
I agree that the normal use of concave as an adjective, which is curved inward, that flat is not curved inward.

[00:17:27] Speaker 01:
Here, though, every time concave is used, not just in the claim, which is very important here, in the claim itself, they use that is to define concave.

[00:17:38] Speaker 01:
Every use in the written description,

[00:17:40] Speaker 01:
They associate concave with the defining term that is and extends beyond.

[00:17:47] Speaker 01:
And very importantly, the other piece of the intrinsic record is the file history.

[00:17:52] Speaker 01:
Bestway consciously made the decision in the file history to change.

[00:17:57] Speaker 03:
But every time they use concave in the specification, it's referring to vertical extension beyond.

[00:18:05] Speaker 03:
I don't see any embodiment in the spec that is horizontal only.

[00:18:11] Speaker 01:
Correct, no embodiment that is vertical only.

[00:18:15] Speaker 01:
The use of extends beyond is definitely a broader term than higher than or a term that would just refer to lateral extension or that would just refer to a vertical extension.

[00:18:27] Speaker 04:
So under your interpretation, then all of those things in the prior art that were expressly disclaimed and denigrated because the platform

[00:18:40] Speaker 04:
would extend even beyond the frame, that all of that would be covered by the board's interpretation, correct?

[00:18:49] Speaker 01:
The prior art that was distinguished, Your Honor, so if we look for example at figures four through seven, those importantly did not have the oblique extending strip that creates the shape of the inverse cone.

[00:19:01] Speaker 04:
And that is when you're looking at what it is that... My question is, could you have something that extends beyond the very frame of the bed and creates that tripping hazard that was denigrated in the prior?

[00:19:17] Speaker 01:
So the lateral extension, as Mr. Arts mentioned, there's the use of peripheral.

[00:19:25] Speaker 01:
So it's claimed as being peripheral.

[00:19:28] Speaker 01:
And what is shown in Figure 3 is that that surface does extend laterally, consistent with that.

[00:19:35] Speaker 01:
The claims don't do anything to define a footprint.

[00:19:38] Speaker 01:
They don't do anything to limit something to being within

[00:19:43] Speaker 01:
within a space of, for example, the main air chamber.

[00:19:48] Speaker 01:
If they wanted to claim in that route, there are many ways they could have done that to write that claim language.

[00:19:55] Speaker 01:
However, I would point out that when you look at the 866 patent and you look at Figure 3, which, best way, says is covered by the claims, for example, you can look at the right-hand side of Figure 3.

[00:20:12] Speaker 01:
And that peripheral auxiliary air chamber that is labeled B1 clearly sticks out to the right of both the upper main chamber and the lower main chamber.

[00:20:24] Speaker 01:
So just query what what claim limitation would best way have added to the claims supported by the specification to get to this footprint issue that they wanted if they wanted some kind of negative claim limitation such as

[00:20:41] Speaker 01:
no extra chamber outside of the lower chamber.

[00:20:47] Speaker 01:
I suppose they could have done that, but to me now we are in the land of the court rewriting the claims as opposed to construing the claims as best way negotiated and obtained at that office.

[00:21:00] Speaker 04:
I understand that your point is that because of the that is language, concave no longer means concave.

[00:21:08] Speaker 01:
That is correct.

[00:21:10] Speaker 04:
Let me go back to my question before about the potential for a cause and effect relationship.

[00:21:17] Speaker 04:
You could say a fever causes an infection, but that doesn't necessarily redefine an infection to mean a fever.

[00:21:29] Speaker 04:
It's a cause and effect relationship that they're arguing is in the claims.

[00:21:36] Speaker 01:
If they had written the claim to say you have a concave relationship that causes this extension, I think that is different than using that is or IE.

[00:21:49] Speaker 01:
This court has cases that we have cited in our briefing.

[00:21:53] Speaker 01:
I believe it's on pages 36 and 37 of the red brief.

[00:21:56] Speaker 01:
The Edwards case, the Skidmedica case, that the use of IE or that is signals an intent to define.

[00:22:05] Speaker 01:
And those are all cases where that is done in the specification.

[00:22:08] Speaker 01:
Here, this is done in the claim.

[00:22:10] Speaker 01:
And it's also done in the specification.

[00:22:13] Speaker 01:
And it was done in the file history where Bestway made a conscious decision to, instead of claiming a vertical relationship following that is, they had a broader extension beyond the relationship.

[00:22:24] Speaker 04:
But there's nothing in the file history that says why that was done, correct?

[00:22:29] Speaker 01:
That is correct.

[00:22:30] Speaker 01:
But I don't think that there is any dispute that going from higher than, which is clearly a vertical orientation, to extends beyond.

[00:22:39] Speaker 01:
I don't think there's any dispute that the claim language was not broadened.

[00:22:45] Speaker 01:
in the manner adopted by the PTAB's construction.

[00:22:49] Speaker 04:
But going back to my other question, because you never really answered it, you would say that everything that was denigrated in the prior art could be covered by this construction, right?

[00:23:00] Speaker 04:
It could extend as far beyond as you want it to, right?

[00:23:05] Speaker 01:
Yes, because of these claims.

[00:23:07] Speaker 01:
Now, yes, there's nothing limiting the size of the peripheral chamber in the claims.

[00:23:14] Speaker 01:
Nothing at all that limits that.

[00:23:18] Speaker 01:
They could have done that in the claims, but they didn't.

[00:23:21] Speaker 01:
The reason is, when you look at what it is they were describing and what it is the examiner adopted as the reasons for allowance, it's focused on the oblique extending stroke and the shape of the inverse cone.

[00:23:34] Speaker 01:
That's what it is that Bestway believed that it was patenting.

[00:23:40] Speaker 01:
It wasn't putting a limit.

[00:23:41] Speaker 04:
Right, the shape of the inverse cone.

[00:23:44] Speaker 01:
I'm sorry?

[00:23:45] Speaker 04:
The shape of the inverse cone.

[00:23:47] Speaker 04:
In other words, the concave shape, right?

[00:23:50] Speaker 01:
No, the shape of the inverse cone is a different limitation than the concave limitation.

[00:23:55] Speaker 01:
The shape of the inverse cone is created by the oblique extending strip.

[00:24:03] Speaker 01:
And the oblique extending strip is what it is that was added in the 103 combination from the Metzger reference.

[00:24:11] Speaker 01:
And that combination,

[00:24:13] Speaker 01:
and the reasons for the combination are not contested by Bestway here.

[00:24:18] Speaker 01:
That is, in the prior art, what it is that Bestway said that it was doing.

[00:24:23] Speaker 01:
When you look at the advantages, for example, it isn't just limited to tripping.

[00:24:27] Speaker 01:
They also talk about saving cost.

[00:24:29] Speaker 01:
They talk about having a better appearance.

[00:24:32] Speaker 03:
Why do you think, or how would you explain the prosecution amendment on page 16

[00:24:40] Speaker 03:
where they eliminated the words is higher than and changed it to extends beyond.

[00:24:46] Speaker 03:
What would your explanation be for how a skilled artisan would understand that prosecution amendment?

[00:24:59] Speaker 03:
Is it your view that that is, in fact, a broadening amendment?

[00:25:04] Speaker 03:
Because you don't usually see broadening amendments in response to office action rejections.

[00:25:10] Speaker 01:
Let me make sure because there are four places page 16 is where I am Yep, so that's the amendment to the claim And I think that that absolutely is a broadening amendment and as I believe judge more in your questions You're correct that the specification supports that amendment because when you look at figure three there is extension of

[00:25:38] Speaker 01:
both vertically and laterally.

[00:25:41] Speaker 01:
And so it is broadening, and it is supported when you look at Figure 3 of the claims.

[00:25:54] Speaker 01:
One final point that I will make is that even Bestway does not want the plain, ordinary meaning of concave.

[00:26:02] Speaker 01:
When you look at figure three and you look at the relationship of the surfaces that they're claiming, you have a completely flat surface that is bounded by two convex surfaces.

[00:26:17] Speaker 01:
No one looking at figure three is going to say that there is a concave anything, a curved inwardly there.

[00:26:25] Speaker 01:
And that is the definition of concave as it's used as an adjective here.

[00:26:30] Speaker 01:
Best Way also points to uses of concave as a noun, but the claim does not use concave as a noun.

[00:26:39] Speaker 01:
And so those ordinary uses should not apply.

[00:26:43] Speaker 01:
Best Way, what they're really after is just vertical displacement.

[00:26:48] Speaker 01:
They want the bottom surface of the bed lifted completely off the ground.

[00:26:53] Speaker 01:
But that clearly is not what is claimed.

[00:26:56] Speaker 01:
They could have, there are a lot of different ways they could have claimed that.

[00:26:59] Speaker 01:
And the P tab in its findings noted that Bestway could have amended the claims through a reissue or a motion to amend or in the original prosecution, but they did not do so.

[00:27:14] Speaker 01:
Unless the court has any further questions, I will cede my remaining time.

[00:27:17] Speaker 03:
Okay, counsel?

[00:27:19] Speaker 03:
Mr. Arts, you have some rebuttal time.

[00:27:34] Speaker 02:
Thank you, Your Honor.

[00:27:35] Speaker 02:
Just a couple quick points.

[00:27:37] Speaker 02:
We agree that that is in the claim as referencing a causal relationship.

[00:27:41] Speaker 02:
And that's the only thing that makes sense in the context of the entire claim.

[00:27:47] Speaker 02:
So when you look at the file history, what has happened?

[00:27:50] Speaker 02:
In the office action where they indicated that the claims were allowed, this is on appendix 642,

[00:27:57] Speaker 02:
The examiner expressly says, the prior art made of record, and this is in the conclusion, and not relied upon, is considered pertinent to applicant's disclosure.

[00:28:07] Speaker 02:
And then it lists a series of references.

[00:28:09] Speaker 02:
Some of those references are not only described in the specification, they're included in figures four through seven.

[00:28:15] Speaker 00:
And the examiner says... But this is really what I've been thinking about.

[00:28:20] Speaker 00:
Is it correct that after these issues became joint,

[00:28:26] Speaker 00:
before the PTAB as to what was and wasn't covered, that there was no opportunity to restrict the claims in a way that you're telling us they should be interpreted in order to avoid these problems?

[00:28:44] Speaker 02:
Meaning, I'm sorry, Your Honor, you're asking did we have an opportunity to amend the claims?

[00:28:50] Speaker 00:
I know by statute it's supposedly permitted

[00:28:54] Speaker 00:
So my question is both was there an opportunity and also was it pursued?

[00:29:01] Speaker 02:
We did not pursue any amendment of the claims and certainly under the IPR rules we had an opportunity to file a motion to amend the claims so that was available to us and we didn't do it but again we didn't believe that the claims required amendment we believed that the term concave as defined within the specification

[00:29:24] Speaker 02:
I see my time is up.

[00:29:25] Speaker 02:
May I finish complete my answer?

[00:29:27] Speaker 02:
Last point I want to make is Council Mr. Carter suggested in every instance where concave appears within the detailed description, it's associated with the term extends beyond.

[00:29:38] Speaker 02:
It's not correct.

[00:29:39] Speaker 00:
Yes, because it does appear as if at least some of the problems you're confronting here could have been avoided by

[00:29:49] Speaker 00:
amendments had they been timely or permitted under the system.

[00:29:56] Speaker 02:
That certainly, Your Honor, the hindsight's 20-20 with respect to any patent.

[00:30:00] Speaker 02:
We can always go back and look and wish that things were clear.

[00:30:03] Speaker 02:
We're dealing with the record as we have it today.

[00:30:08] Speaker 02:
Thank you, Your Honor.

[00:30:10] Speaker 03:
I thank both counsels.

[00:30:11] Speaker 03:
This case is taken under submission.