[00:00:00] Speaker 01:
The next case for argument is 21-1963, evolution concepts versus hop events.

[00:00:10] Speaker 01:
Take your time getting here until we clear the well.

[00:00:18] Speaker 03:
May it please the court, I'm Alan Sokol, representing evolution.

[00:00:25] Speaker 03:
I am not going to address, unless there are any questions,

[00:00:29] Speaker 03:
the doctrine of equivalence issue.

[00:00:31] Speaker 03:
I'm going to use my time to address the literal infringement issue.

[00:00:38] Speaker 03:
The sole issue is the construction of magazine catch bar, which is a de novo issue decided by this court as a matter of law.

[00:00:51] Speaker 03:
magazine catch bar reads on or encompasses an OEM or factory-installed magazine catch bar, then the district court erred in granting summary judgment of non-infringement and in denying summary judgment of infringement.

[00:01:09] Speaker 02:
Can I just double check something?

[00:01:11] Speaker 02:
Is there actually a dispute between the parties about what you just last said, namely that

[00:01:17] Speaker 02:
There is actually, you were entitled to summary judgment of infringement if indeed the factory catch bar is covered by the claim.

[00:01:27] Speaker 03:
Is there a dispute about that?

[00:01:31] Speaker 02:
So we have a claim construction question.

[00:01:33] Speaker 02:
Suppose we agreed with you that the claim, contrary to the district court's claim construction, actually doesn't exclude factory catch bars.

[00:01:42] Speaker 02:
At that point, do we remand?

[00:01:45] Speaker 02:
Do we remand for the question of infringement to be addressed as to those particular claims, or is it undisputed that there is infringement if we adopt that claim construction?

[00:02:00] Speaker 03:
It is undisputed.

[00:02:01] Speaker 03:
It's my understanding.

[00:02:03] Speaker 03:
It's the judge's understanding at the district court.

[00:02:05] Speaker 03:
It's in her opinion.

[00:02:07] Speaker 03:
She expressly says, if a magazine catch bar encompasses

[00:02:12] Speaker 03:
an OEM magazine catch bar, then there is infringement.

[00:02:18] Speaker 03:
If it doesn't encompass it, then there is not infringement.

[00:02:22] Speaker 03:
So I don't think there's any dispute about that.

[00:02:24] Speaker 02:
That's at appendix page A9, I think.

[00:02:26] Speaker 02:
Excuse me?

[00:02:27] Speaker 02:
Appendix page 9, I think.

[00:02:30] Speaker 03:
Yes, in the court's opinion.

[00:02:33] Speaker 03:
And it's also quoted in our opening brief.

[00:02:39] Speaker 03:
The district court properly relied on intrinsic evidence in making its decision, but the district court failed to follow the claim construction jurisprudence of this court and it failed to consider the patent as a whole.

[00:02:55] Speaker 03:
It focused on a single ambiguous sentence out of context in the patent

[00:03:02] Speaker 03:
And in doing so, it construed magazine catch bar to exclude OEM magazine catch bars, even though there's no special definition or no clear and unmistakable disavowal of the ordinary meaning of magazine catch bar.

[00:03:19] Speaker 03:
To reach that construction, the court went through four steps.

[00:03:22] Speaker 03:
And if any of those steps were erroneous, then the court's decision was erroneous.

[00:03:28] Speaker 03:
And all four of those steps were erroneous.

[00:03:32] Speaker 03:
And I'll just briefly say what the four steps are.

[00:03:35] Speaker 03:
First, it interpreted what is the most quoted sentence in the patent.

[00:03:41] Speaker 03:
And I'm going to read that sentence.

[00:03:44] Speaker 03:
The invention is a permanent fixture added to a semi-automatic firearm by removing the standard OEM magazine catch assembly and installing the invention

[00:03:58] Speaker 03:
The district court interpreted that sentence to mean that magazine catch bar is excluded from being installed.

[00:04:09] Speaker 03:
Excuse me.

[00:04:10] Speaker 03:
The term magazine catch bar excludes installing an OEM magazine catch bar because the OEM magazine catch bar is part of the removed OEM magazine catch assembly.

[00:04:25] Speaker 03:
So that was the first step.

[00:04:28] Speaker 03:
The second step was based on this court's Verizon opinion, the district court held that magazine catch bar in the product claims excludes OEM magazine catch bars.

[00:04:41] Speaker 03:
Even though the product claims just say magazine catch bar, they don't include any installing or removing steps.

[00:04:49] Speaker 03:
Thirdly, the court similarly ruled that in

[00:04:52] Speaker 03:
claim fifteen, which is not even asserted against Juggernaut, that magazine catch bar and that claim also excludes an OEM magazine catch bar.

[00:05:04] Speaker 01:
Does that make any difference?

[00:05:05] Speaker 01:
I mean, I know in your briefing you keep on talking about the unasserted claim as if you can't consider it because it's not been asserted.

[00:05:12] Speaker 01:
That's not your view, is it?

[00:05:13] Speaker 03:
I'm sorry, Your Honor.

[00:05:15] Speaker 01:
Because it's been

[00:05:17] Speaker 01:
unasserted in your briefing, you talk about it as the unasserted claim, and that's fine.

[00:05:22] Speaker 01:
But that doesn't suggest or foreclose that one can consider the claim in connection with claim construction analysis, just because it's not an asserted.

[00:05:32] Speaker 03:
No, of course you can consider it.

[00:05:33] Speaker 03:
You can consider everything in the original disclosure, which includes the written description and the claims.

[00:05:41] Speaker 03:
They're all allowed on the first allowance, and they're part of the original disclosure also.

[00:05:45] Speaker 03:
all of that can be considered.

[00:05:48] Speaker 04:
Part of your appeal is premised on Magazine Catch Bar and Claim 15 as having a different scope of meaning than Magazine Catch Bar and Claim 1.

[00:06:01] Speaker 04:
Is that right?

[00:06:02] Speaker 03:
No, no.

[00:06:05] Speaker 03:
We think that Magazine Catch Bar and Claim 15 and Claims 1 and 8

[00:06:10] Speaker 03:
means the ordinary meaning of magazine catch bar.

[00:06:15] Speaker 04:
But even if it does... I thought you had at least a backup argument suggesting that that same term should have a different meaning in the context of Claim 15 compared to Claim 15.

[00:06:27] Speaker 04:
The backup argument is that... But that isn't part of your appeal that... Yes.

[00:06:33] Speaker 04:
That we should

[00:06:35] Speaker 04:
the court should understand magazine catch bar and claim fifteen is being something different than magazine catch bar and claim one.

[00:06:43] Speaker 03:
Our position, I want to make that clear, is that magazine catch bar has the same construction, the ordinary meaning of magazine catch bar, which encompasses an OEM magazine catch bar in all three claims, one, eight, and fifteen.

[00:06:59] Speaker 03:
But even if you decide that

[00:07:01] Speaker 03:
In claim 15, magazine catch bar excludes an OEM magazine catch bar.

[00:07:07] Speaker 03:
That does not carry over to claims one and eight, which don't include the removing step and the installing step that the court based its construction on.

[00:07:19] Speaker 02:
And just so I can be sure I understand, as to claim 15, the theory is when

[00:07:28] Speaker 02:
The claim says in a step you need to remove something.

[00:07:31] Speaker 02:
Of course it's got to refer to the thing that was originally a part of it.

[00:07:35] Speaker 02:
And it's referring, removing an assembly.

[00:07:38] Speaker 02:
And that doesn't mean that when you put a catch bar back in to a new assembly, you can't use this particular component of it.

[00:07:48] Speaker 02:
That was the original thing that you took out.

[00:07:52] Speaker 02:
And therefore the one that you're putting in, the catch bar, can be the one that you took out.

[00:07:58] Speaker 02:
Is that right?

[00:08:00] Speaker 03:
Well, I'm not sure I understood.

[00:08:03] Speaker 03:
But if the claim 15 says removing the magazine assembly button assembly.

[00:08:11] Speaker 03:
Removing.

[00:08:13] Speaker 02:
A factory-installed magazine catch bar.

[00:08:16] Speaker 02:
And then it says installing a magazine catch bar.

[00:08:19] Speaker 02:
And your point is that can be the same one you removed?

[00:08:22] Speaker 03:
It can be, yes.

[00:08:23] Speaker 03:
That's our position.

[00:08:25] Speaker 03:
And in fact, it can be or it cannot be.

[00:08:28] Speaker 03:
That is, it can be a factory-installed or a non-factory-installed magazine catch bar because it's using a broad term.

[00:08:38] Speaker 04:
And that broad term encompasses both, just like in this... I suppose the district court, when it was reading your specification and claims and saw the term removing, removing the magazine catch bar assembly and all the components therein that make up the magazine catch assembly, the judge believed that removing meant discarding.

[00:09:03] Speaker 04:
Is that fair to say?

[00:09:05] Speaker 03:
I don't think so, Your Honor.

[00:09:06] Speaker 04:
Well, that's how the district court could thereby distinguish that when you recite later in your claim the introduction of a magazine catch bar, it necessarily must be a different catch bar than the one that's part of the assembly, because by removing all of those factory-made components, those are discarded.

[00:09:34] Speaker 03:
That was the district court's reasoning.

[00:09:37] Speaker 04:
So what's wrong with that reasoning, I guess is my question.

[00:09:40] Speaker 04:
Removing all of this guts from the firearm and then replacing it with some new guts.

[00:09:50] Speaker 03:
Well, the word replacing doesn't occur, but it just says installing a magazine catch bar.

[00:09:58] Speaker 03:
That's all it says and that could be either the original magazine catch bar that was part of the assembly that was removed

[00:10:10] Speaker 03:
Or it could be a different magazine catch bar.

[00:10:16] Speaker 03:
It would serve the same purpose, whichever it is.

[00:10:18] Speaker 04:
Is the magazine catch bar of the claimed invention, is it positioned in the same way?

[00:10:25] Speaker 04:
It's positioned somehow differently than how the magazine catch bar is initially positioned.

[00:10:32] Speaker 04:
Is that correct?

[00:10:34] Speaker 04:
In your modified firearm?

[00:10:37] Speaker 03:
In the modified firearm, the magazine catch bar is positioned so that in both it goes into a cavity in the magazine itself and holds the magazine there so it cannot be removed.

[00:10:53] Speaker 03:
And the invention adds a upper tension bar that connects to the magazine catch bar.

[00:10:59] Speaker 03:
that makes the magazine catch bar immobile so that it cannot come out of the magazine and release the magazine.

[00:11:07] Speaker 03:
So that's true for the OEM magazine catch bar.

[00:11:11] Speaker 03:
That's true for the magazine catch bar that is substituted, whether it's modified or not modified.

[00:11:18] Speaker 03:
It works the same way.

[00:11:19] Speaker 03:
It connects with the magazine at the same place to keep it from coming out unless you can move the magazine catch bar OEM or not.

[00:11:30] Speaker 03:
And you can't move it in the invention unless the upper tension bar is released.

[00:11:35] Speaker 03:
And that can only happen

[00:11:37] Speaker 03:
when you open the upper and lower receivers of the firearm.

[00:11:45] Speaker 03:
So what this court's case law clearly requires, and we put a major emphasis on the Thorner decision, Thorner versus Sony, but the same thing happens in the in-bank decision in Phillips that

[00:12:02] Speaker 03:
There are only two ways that you ignore the ordinary meaning of a claim term.

[00:12:08] Speaker 03:
Either you have a special definition that is clearly set forth, or you have a clear and unmistakable disavowal.

[00:12:20] Speaker 03:
And the simple saying that you remove the magazine catch assembly that happens to include a magazine catch bar and then insert

[00:12:32] Speaker 03:
or install a magazine catch bar is by no stretch of the imagination, a clear and undisputable and unambiguous disavowal or disclaimer.

[00:12:43] Speaker 03:
And it's certainly not a special definition.

[00:12:46] Speaker 01:
Mr. Chalko, before your time runs out, I just want to go back to where we started with which is Judge Toronto's question about whether there would be summary judgment of infringement here.

[00:12:56] Speaker 01:
And even though I recognize what you pointed us to on A9 of the appendix, the district court did note some differences in terms of the accused products.

[00:13:07] Speaker 01:
So the question is, really, are we clear that all of the accused products would necessarily be found to be infringing, even if we would agree with you on the claim construction?

[00:13:18] Speaker 01:
And the second part of my question is, I also think that there's some indirect infringement claims.

[00:13:24] Speaker 01:
Oh, I'm sorry.

[00:13:25] Speaker 01:
think there are some indirect infringement claims.

[00:13:29] Speaker 01:
And so I don't know how we do that on summary judgment of infringement, if I'm right about that.

[00:13:35] Speaker 01:
And there are also some dependent claims.

[00:13:38] Speaker 01:
So I guess I'm not entirely satisfied that necessarily all of the accused, there is infringement, summary judgment of infringement on all of the accused products and all the allegations you've made.

[00:13:52] Speaker 01:
So what am I missing?

[00:13:54] Speaker ?:
Right.

[00:13:55] Speaker 01:
Well, we will certainly ask the other side, their view, but.

[00:13:59] Speaker 03:
The court did go through all the limitations of at least claims one and eight and said that they're all there in the accused products.

[00:14:11] Speaker 02:
But I'm sorry, but that's just one in eight.

[00:14:13] Speaker 02:
And there are a bunch of other claims there.

[00:14:14] Speaker 02:
Dependent claims?

[00:14:16] Speaker 02:
As to which do not have the same.

[00:14:18] Speaker 03:
That's right.

[00:14:19] Speaker 03:
I don't think the court went through that.

[00:14:20] Speaker 03:
But I don't know that there was an issue about any of those.

[00:14:24] Speaker 01:
Are there indirect infringement claims in this case?

[00:14:27] Speaker 01:
Excuse me?

[00:14:27] Speaker 01:
Are there indirect infringement claims in this case?

[00:14:32] Speaker 01:
Inducement claims?

[00:14:34] Speaker 01:
Yeah.

[00:14:34] Speaker 01:
Contributory or inducement?

[00:14:36] Speaker 03:
I thought I saw them there.

[00:14:37] Speaker 03:
Thank you.

[00:14:39] Speaker 03:
Yes, there probably are.

[00:14:41] Speaker 03:
And I'm not actually certain.

[00:14:44] Speaker 03:
But since claim eight.

[00:14:45] Speaker 01:
Well, how do we grant summary judgment on induced infringement on this record?

[00:14:51] Speaker 03:
Well, then you might want to reverse on simply literal infringement of claims one and eight.

[00:14:58] Speaker 03:
It's got to be remanded anyway.

[00:15:02] Speaker 01:
We'll ask the other side about it, but I just want to go back to that.

[00:15:05] Speaker 01:
Thank you.

[00:15:06] Speaker 01:
We'll restore some rebuttal time.

[00:15:08] Speaker 01:
Let's hear from the other side.

[00:15:09] Speaker 03:
If I have any remaining time, I'll reserve it for rebuttal, unless there are any more questions.

[00:15:16] Speaker 03:
Thank you.

[00:15:22] Speaker 05:
Good morning.

[00:15:23] Speaker 05:
May it please the court?

[00:15:26] Speaker 05:
My name is Bobby Braxton.

[00:15:27] Speaker 05:
I represent Chevronaut Tactical.

[00:15:30] Speaker 05:
This case fits squarely within Verizon v. Vonage.

[00:15:37] Speaker 05:
Verizon isn't absolute.

[00:15:39] Speaker 05:
It's not final.

[00:15:40] Speaker 05:
There are exceptions.

[00:15:42] Speaker 05:
Absolute versus stealth provided some exceptions where the specification is inconsistent.

[00:15:50] Speaker 05:
The district court looked for some of these exceptions and looked for some of these inconsistencies and saw none and rightfully granted the construction of excluding an OEM magazine catch bar.

[00:16:00] Speaker 02:
And so what is the crucial piece of the spec on which you rely?

[00:16:06] Speaker 05:
There's a number of them.

[00:16:09] Speaker 05:
The first one is, it's on Appendix 66.

[00:16:14] Speaker 02:
Column and line number.

[00:16:16] Speaker 02:
I'm sorry, yes, sir.

[00:16:17] Speaker 05:
And it's column two, line 54.

[00:16:20] Speaker 05:
These two sentences, if I can read it.

[00:16:25] Speaker 05:
The invention is a device which is installed as a permanent component of the firearm.

[00:16:30] Speaker 05:
And then it later says, the invention is a permanent fixture added to a semi-automatic firearm by removing the standard OEM magazine catch assembly and installing the invention.

[00:16:40] Speaker 02:
Right.

[00:16:41] Speaker 02:
So as I read that, that to me does not say one word about whether the invention can include the very same OEM

[00:16:52] Speaker 02:
factory-installed catch bar that was removed for purposes of installing this new assembly.

[00:16:59] Speaker 05:
So I would say I read it as saying the invention is removing the original one and then when you take it... Does it say discarding it?

[00:17:09] Speaker 05:
It doesn't say discarding.

[00:17:10] Speaker 02:
Right, so you remove it because you're taking something apart.

[00:17:13] Speaker 02:
So far nothing is said about what has to be put back.

[00:17:17] Speaker 05:
Right, but I think it says installing the invention.

[00:17:20] Speaker 02:
Right.

[00:17:21] Speaker 05:
And then later, so for example, in the figures, this isn't the case where that sentence is in isolation.

[00:17:28] Speaker 05:
In the figures, if you look to column three, I'm sorry, column four, I'm on page 67 of the appendix, column four, line 65.

[00:17:41] Speaker 05:
This isn't the case where the sentence stands in isolation.

[00:17:44] Speaker 02:
55 or 65?

[00:17:44] Speaker 05:
65, I'm sorry.

[00:17:47] Speaker 05:
And that sentence says, as shown in figure one, when the lower receiver is attached to the upper receiver, the invention 10 is securely placed in a recess in the magazine well.

[00:17:58] Speaker 05:
And so this is a case where they've actually drawn out the invention.

[00:18:02] Speaker 05:
We're not saying they're limited to the specific environment.

[00:18:07] Speaker 02:
How do we know invention?

[00:18:09] Speaker 02:
Is 10 the catch mark?

[00:18:11] Speaker 05:
Ten is the invention.

[00:18:12] Speaker 05:
That's what they call is ten the invention and then later on in the second.

[00:18:16] Speaker 02:
You're not connecting for me that that language to your crucial proposition that the catch bar that goes in as part of the reconstructed firearm can't be the one that came out.

[00:18:30] Speaker 05:
Sure and I think what I'm what I'm trying to

[00:18:35] Speaker 05:
to connect is that they define the invention 10 in the figures, and that none of the figures, one through five, show a firearm with an OEM magazine catch bar.

[00:18:47] Speaker 04:
Well, let's look at figure three.

[00:18:48] Speaker 04:
Yes, sir.

[00:18:49] Speaker 04:
Right?

[00:18:49] Speaker 04:
Figure three is the invention 10, and it shows that invention 10 is an assembly made up of several different components.

[00:19:00] Speaker 04:
Correct.

[00:19:01] Speaker 04:
One of which is the catch bar 120.

[00:19:03] Speaker 04:
Yes, sir.

[00:19:04] Speaker 04:
And so the question to me is, why can't that particular component of the invention also be the same component that makes up the original factory-made magazine catch assembly?

[00:19:21] Speaker 04:
Sure.

[00:19:22] Speaker 04:
Is there something in the specification that communicates to us

[00:19:27] Speaker 04:
magazine catch bar of invention 10 is unique.

[00:19:32] Speaker 04:
It has to be customized because now the way we're going to ensure that this is modified the way we want the firearm to be modified, we need a new different magazine catch bar than the one that was made originally.

[00:19:50] Speaker 05:
Right.

[00:19:51] Speaker 05:
So I think the answer is just taking as a whole the specification

[00:19:56] Speaker 05:
Every time the OEM magazine catch bar is discussed, it's removed.

[00:20:01] Speaker 05:
Now, I drank to it.

[00:20:02] Speaker 05:
Does it say?

[00:20:03] Speaker 04:
I'm sorry.

[00:20:04] Speaker 04:
Let me repeat my question, because it's important to me.

[00:20:07] Speaker 04:
Is there something in this written description that communicates to us that the magazine catch bar of Invention 10 needs to be designed differently than the magazine catch bar that comes with the original magazine catch assembly?

[00:20:26] Speaker 05:
I don't know, other than the language that we spoke about before, where they define the invention as removing the OEN and installing... Right.

[00:20:36] Speaker 05:
You're removing an assembly.

[00:20:37] Speaker 05:
Right.

[00:20:38] Speaker 04:
An assembly of parts.

[00:20:39] Speaker 04:
Yes, sir.

[00:20:40] Speaker 04:
And now you're introducing a different assembly.

[00:20:44] Speaker 04:
As a whole, it's a different assembly.

[00:20:46] Speaker 04:
Correct.

[00:20:47] Speaker 04:
With its own parts.

[00:20:48] Speaker 04:
That's right.

[00:20:49] Speaker 04:
And the real question is, why can't

[00:20:52] Speaker 04:
these two different assemblies share some of the same components.

[00:20:56] Speaker 05:
Sure, and I think the reason is because the original OEM magazine catch bar cannot function in this way.

[00:21:04] Speaker 05:
It just cannot.

[00:21:05] Speaker 05:
The original function, it has a recess for a thread and that's it.

[00:21:09] Speaker 05:
You can't attach an upper tension bar as they've shown in figures three and four.

[00:21:14] Speaker 05:
The original OEM, which has been around for

[00:21:18] Speaker 05:
seventy years cannot function like that.

[00:21:20] Speaker 04:
Are we talking about the assembly or the catch bar itself?

[00:21:24] Speaker 05:
The catch bar itself.

[00:21:25] Speaker 04:
Okay now how do I know that?

[00:21:27] Speaker 05:
I think you know that because you know as I mentioned that column two language they say hey we have to get rid of the OEM magazine catch assembly and in fact claim fifteen is even consistent whereby change in antecedent basis.

[00:21:44] Speaker 05:
Claim fifteen

[00:21:47] Speaker 05:
It specifically calls out, and I'm looking at, it's on Appendix 69, Claim 15, the removing steps comprise depressing the magazine release button to a sufficient depth to permit the factory-installed magazine catch bar, I'm sorry, here we go, removing all parts of the factory-installed magazine release button assembly.

[00:22:14] Speaker 05:
But then later when you install,

[00:22:17] Speaker 05:
you install a magazine catch bar.

[00:22:19] Speaker 05:
And so the change of antecedent basis, it's introducing a new term.

[00:22:23] Speaker 05:
We're not introducing the previous factory installed.

[00:22:29] Speaker 04:
If we were just to look at the claims, forget about the figures on the written description.

[00:22:33] Speaker 04:
Just look at the claims, and then we see this reference to a factory installed magazine catch bar, and then a separate limitation about a magazine catch bar.

[00:22:45] Speaker 04:
Just under standard claim construction principles, why wouldn't we look at the term a magazine catch bar, whether it's in claim 1 or claim 15, as referring to any magazine catch bar?

[00:23:00] Speaker 04:
As I understand it, that's typically how we would understand the claim.

[00:23:06] Speaker 05:
I think if you look at the term factory installed magazine catch bar in claim 15, if it's the same thing as

[00:23:14] Speaker 05:
a magazine catch bar, factory installed is redundant or is unnecessary.

[00:23:20] Speaker 05:
We're removing those limitations if we say those are the same.

[00:23:23] Speaker 02:
Let me push back on that.

[00:23:24] Speaker 02:
It doesn't seem to me redundant at all.

[00:23:27] Speaker 02:
You're removing an entire assembly, one component of which, as Judge Shen said, is this catch bar.

[00:23:37] Speaker 02:
Of course you can refer to those.

[00:23:39] Speaker 02:
This is a process of taking the gun as it came out of the factory.

[00:23:44] Speaker 02:
So you're removing stuff, you say the parts that were installed in the factory, and then you're putting some new stuff in, one of which is a catch bar.

[00:23:53] Speaker 02:
But it doesn't say that the catch bar that you're putting in can't be the one component of the removed assembly that you took out.

[00:24:03] Speaker 05:
I think the only thing I would say is the claim language actually, it doesn't say remove the assembly, it says... I think it does.

[00:24:12] Speaker 05:
I'm sorry.

[00:24:13] Speaker 05:
To permit the factory-installed magazine catch bar.

[00:24:15] Speaker 02:
Removing all parts of the factory-installed magazine release button assembly.

[00:24:19] Speaker 05:
Right, but up above it says depressing the magazine release button to a sufficient depth to permit the factory install magazine catch bar.

[00:24:27] Speaker 05:
So we're talking about one specific component, we remove the whole assembly, and then we add a completely new A magazine catch bar.

[00:24:35] Speaker 02:
Can I ask a question?

[00:24:37] Speaker 02:
Absolutely.

[00:24:39] Speaker 02:
Figure 1 and 2 are one thing.

[00:24:42] Speaker 02:
Figure 3 specifically is introduced on column 5 as one embodiment of the invention.

[00:24:48] Speaker 02:
Does any of the claim language that we are talking about here, the claim language claim particular parts shown in figure 3 of the invention 10?

[00:25:04] Speaker 05:
Yes sir, are you looking at claim one, is that what you said?

[00:25:07] Speaker 02:
Any of the claims that are issued.

[00:25:08] Speaker 05:
It does.

[00:25:10] Speaker 05:
Figure three, for example, shows a magazine catch bar, which is 120, and it shows an upper tension bar, which is 110.

[00:25:22] Speaker 05:
But I would say again, there's not a single figure or description anywhere in here that even suggests that you can reuse

[00:25:32] Speaker 05:
the OEM magazine catch bar.

[00:25:34] Speaker 02:
That would be an odd thing to do, wouldn't it?

[00:25:37] Speaker 02:
In a patent like this, you're describing the structures of the device, except for the method claim, not so much where they came from.

[00:25:52] Speaker 02:
And even the method one is specifically about

[00:25:56] Speaker 02:
You're saying, okay, we're going to start with something.

[00:25:57] Speaker 02:
So you've got to say that is origin-based, but the result that you're creating, who cares where it comes from?

[00:26:05] Speaker 05:
I think why it matters is because the whole thrust of this device is converting a releasable magazine to a fixed.

[00:26:11] Speaker 05:
And so there's no question that the, all the evidence on record from all the experts show you cannot do that with the OEM magazine catch.

[00:26:21] Speaker 05:
There's just no way to do it.

[00:26:22] Speaker 02:
Did the district court rely on some sort of impossibility theory of the sort that you're just describing?

[00:26:30] Speaker 05:
No, but I think the district court relied upon kind of the totality of the specification, including where the applicant of the 845 patent defined the thesis of their invention as removing the original OEM and replacing it with a new magazine catch bar.

[00:26:49] Speaker 05:
And so I think just that.

[00:26:50] Speaker 04:
As well as when we kind of look at... Or maybe to be more refinely accurate, a new assembly.

[00:27:01] Speaker 05:
I would still say the claim itself doesn't really talk about assembly.

[00:27:05] Speaker 05:
It just talks about a magazine catch bar.

[00:27:08] Speaker 04:
Well, it talks about a magazine catch bar and an upper tension bar together.

[00:27:13] Speaker 04:
Correct.

[00:27:13] Speaker 04:
Right?

[00:27:14] Speaker 04:
That's the invention.

[00:27:15] Speaker 05:
That's the invention.

[00:27:16] Speaker 05:
That's correct.

[00:27:17] Speaker 04:
So getting to claim one,

[00:27:20] Speaker 04:
Let's assume the patent drafter wanted to claim an invention that encompassed all kinds of magazine catch bars.

[00:27:33] Speaker 04:
What did it need to say that it failed to say in claim one when it said recites a magazine catch bar?

[00:27:39] Speaker 04:
Sure.

[00:27:40] Speaker 05:
I would say that claim one does capture all types of magazine catch bars.

[00:27:44] Speaker 04:
Including the factory installs one.

[00:27:45] Speaker 05:
No, sir.

[00:27:46] Speaker 04:
Well, that's my question for you.

[00:27:47] Speaker 04:
Right, sure.

[00:27:47] Speaker 04:
Well, then I'm a patent drafter.

[00:27:49] Speaker 04:
I'm in a bind here.

[00:27:50] Speaker 04:
100%.

[00:27:50] Speaker 04:
I want to be able to claim generically a magazine catch bar.

[00:27:54] Speaker 04:
Right.

[00:27:55] Speaker 04:
Encompass any magazine catch bar in your demand.

[00:27:57] Speaker 04:
How am I going to write that claim?

[00:27:59] Speaker 05:
I think you don't even have to touch the claim.

[00:28:01] Speaker 05:
I think in the specification where you say, where you define your invention, you could say, in one embodiment, we can do this.

[00:28:08] Speaker 05:
But also, if it was at all possible to reuse the original OEM, I think it would have taken one sentence.

[00:28:15] Speaker 05:
And I don't think we would be here.

[00:28:16] Speaker 04:
So instead of rewriting the claim, you're suggesting to the patent drafter rewrite the specification?

[00:28:22] Speaker 05:
I think just one sentence would have changed the game completely.

[00:28:25] Speaker 04:
Well, OK.

[00:28:26] Speaker 04:
What if we kept the written description as is?

[00:28:29] Speaker 04:
How is the patent drafter going to write the claim that he

[00:28:33] Speaker 04:
to accomplish what he wants to accomplish.

[00:28:34] Speaker 05:
Sure.

[00:28:35] Speaker 05:
I think perhaps claim one can say magazine catch bar, and claim two could have said, you could have had a deepening claim that says the firearm in claim one, where instead magazine catch bar is an OEM magazine catch bar.

[00:28:51] Speaker 05:
I think if you add, then you have a claim differentiation argument.

[00:28:55] Speaker 05:
But I think had they done that here, there would have been a host of 112 issues, lack of support, all that sort of stuff.

[00:29:00] Speaker 05:
So I think to your question,

[00:29:02] Speaker 05:
I'm not sure off the top of my head how you can redefine magazine catch bar in the claim other than adding dependent claims to kind of flush out the differences.

[00:29:12] Speaker 05:
Did that answer the question a bit?

[00:29:13] Speaker 05:
Yes, that's fine.

[00:29:15] Speaker 01:
Before your time runs out, could you address the kind of procedural question we were having in terms of

[00:29:21] Speaker 01:
if we were hypothetically to reverse claim construction what we're left with in terms of infringement?

[00:29:27] Speaker 05:
Right, Your Honor.

[00:29:27] Speaker 05:
Yes.

[00:29:27] Speaker 05:
So the dependent claims, the asserted dependent claims in this case, we had non-infringement positions as to the dependent claims.

[00:29:37] Speaker 05:
So the district court did not address those.

[00:29:41] Speaker 05:
Once we got the construction, they said, OK, if you don't infringe the independent, you don't infringe the dependent.

[00:29:48] Speaker 05:
But so the dependent claims,

[00:29:52] Speaker 05:
9 and 10, for example, those are still contested.

[00:29:56] Speaker 02:
What about 1 and 8?

[00:29:57] Speaker 05:
1 and 8, the sole main issue is magazine catch bar.

[00:30:02] Speaker 02:
Well, sole and main are not quite the same.

[00:30:06] Speaker 05:
Fair enough.

[00:30:07] Speaker 05:
That's the sole issue.

[00:30:09] Speaker 05:
The only other thing that when we move for some- Summary judgment.

[00:30:14] Speaker 05:
That's correct.

[00:30:15] Speaker 05:
The only other thing is the district court did not get to

[00:30:18] Speaker 05:
was we also filed a motion for summary judgment of invalidity.

[00:30:22] Speaker 05:
So that's still open.

[00:30:24] Speaker 05:
But as to infringement, you're correct.

[00:30:25] Speaker 05:
For 1 and 8, it's magazine catch bar.

[00:30:28] Speaker 02:
And in this case, the invalidity is asserted only as an affirmative defense, not a counterclaim.

[00:30:34] Speaker 02:
It better be the case, or we don't have a final judgment.

[00:30:37] Speaker 04:
uh... that i think that and i think that checked okay that that might that might be the case just one last question uh... your impossibility argument that it would be impossible to use the original factory-made magazine catalog right uh... was there any extrinsic evidence developed to that point yes sir and it's it's it's in the record but it's not in the appendix uh... are art technical expert uh... during the deposition

[00:31:05] Speaker 05:
The question was, if I give you a blank check, can you make this OEM work at all?

[00:31:12] Speaker 05:
And we spent 30 minutes going back and forth.

[00:31:14] Speaker 05:
The final answer was, I would have to give you the blank check back.

[00:31:17] Speaker 05:
There's just no way to do it.

[00:31:18] Speaker 05:
You need, as in Figure 3, some other things to attach the upper tension bar.

[00:31:23] Speaker 04:
You need certain things that... That's fine.

[00:31:26] Speaker 04:
Let me put a finer point on it.

[00:31:28] Speaker 04:
It's impossible to use the OEM magazine catch bar in conjunction with an upper tension bar to accomplish what the invention is designed to accomplish.

[00:31:41] Speaker 05:
I believe it is.

[00:31:42] Speaker 04:
I believe it is.

[00:31:42] Speaker 04:
I think you need something else.

[00:31:44] Speaker 04:
Maybe you need other components to the assembly.

[00:31:46] Speaker 04:
That's fine.

[00:31:47] Speaker 04:
But I'm just wondering, is there something about the design of the originally made magazine catch bar that precludes it from being able to be used with other pieces, including an upper tension bar, to accomplish what the invention's seeking to accomplish?

[00:32:03] Speaker 05:
summarizing kind of the expert's testimony here.

[00:32:05] Speaker 05:
But, you know, we're talking about fine tolerances where this has to fit in certain spots.

[00:32:10] Speaker 05:
And so if it's only threaded to receive one bolt, that's as simple as an OEM magazine catch bar is.

[00:32:16] Speaker 05:
It's a bolt that attaches to a planer piece.

[00:32:20] Speaker 02:
I'm having trouble squaring that with your agreement that the only non-infringement argument you made was about this claim construction.

[00:32:33] Speaker 02:
It sounds like now you're saying, if you tried to use the OEM one, then it wouldn't

[00:32:43] Speaker 02:
It wouldn't be a working firearm, yet they're accusing, I assume, something that is a working firearm.

[00:32:49] Speaker 02:
So it must work.

[00:32:51] Speaker 05:
No, 100%.

[00:32:51] Speaker 05:
But we don't do it in the way that they do it.

[00:32:54] Speaker 05:
So for example, the upper tension bar.

[00:32:56] Speaker 02:
They do it meaning as claimed?

[00:32:59] Speaker 05:
As claimed and written in the pack.

[00:33:00] Speaker 02:
Well, then why didn't you have an additional non-infringement argument?

[00:33:04] Speaker 05:
Because I think the construction for upper tension bar, which is the other item here, the upper tension bar in the accused products, they do not touch the OEM magazine catch bar.

[00:33:15] Speaker 05:
They go above it.

[00:33:16] Speaker 05:
It's not touched.

[00:33:16] Speaker 05:
It's not coupled whatsoever.

[00:33:19] Speaker 05:
And so the reason we're putting all our eggs in the magazine catch bar basket is in the accused products, we do not touch the magazine catch bar.

[00:33:28] Speaker 05:
We don't take it out.

[00:33:29] Speaker 05:
And that's why claim 15, just to back up,

[00:33:34] Speaker 05:
It's not asserted now, but it was originally asserted.

[00:33:37] Speaker 05:
And they eventually had to drop it because they found out, oh, Judgernaut does not take out the OAM Magazine catch bar.

[00:33:44] Speaker 05:
So they dropped claim 15.

[00:33:47] Speaker 01:
Thank you.

[00:33:47] Speaker 05:
Thank you.

[00:33:54] Speaker 03:
I'd like to just address a couple of points.

[00:34:00] Speaker 03:
The Verizon case.

[00:34:02] Speaker 03:
uh... it doesn't apply because it it has to be the invention as a whole uh... that is it is affected and uh... there are two inventions here actually three of the inventions of claims one in eight which are product inventions and these are the invention of claim fifteen which is a method invention and the invention is sentence uh... that that juggernaut relies on

[00:34:30] Speaker 03:
describes the method.

[00:34:32] Speaker 03:
It talks about removing and installing.

[00:34:34] Speaker 03:
Those don't appear in the product claims.

[00:34:37] Speaker 04:
Sokol, we didn't talk about your inventor, co-inventor's deposition testimony during your opening, but could you speak to that?

[00:34:46] Speaker 04:
It appeared at some point he testified that his invention is a modified magazine catch bar.

[00:34:54] Speaker 04:
uh... yes yes let me address that was there just some misunderstanding or miscommunication in what was going on because he you know it sounded there's a way to read that to suggest that the inventor of the his invention is rooted in a modified magazine catch part and he was correct in part of course he's a layman so he doesn't understand about claims and the way they were construed uh...

[00:35:23] Speaker 03:
Mr. Harris, the co-inventor and owner of Evolution, did testify that he did not invent the magazine catch bar.

[00:35:33] Speaker 03:
Of course he didn't invent the magazine catch bar.

[00:35:36] Speaker 03:
Juggernaut admitted that it's been known for decades.

[00:35:40] Speaker 03:
In fact, in their opening claim construction brief, they said magazine catch bar doesn't need to be construed because it has a well-known meaning that's been known for decades and that's its ordinary meaning.

[00:35:54] Speaker 03:
So Mr. Harris did not invent the magazine catch bar.

[00:36:00] Speaker 03:
And he said, when he was asked, he said, but I invented a modified magazine catch bar.

[00:36:06] Speaker 03:
And he did.

[00:36:06] Speaker 03:
And that's what some of the dependent claims are drawn to, but not the independent product claims.

[00:36:14] Speaker 03:
And then he was asked, well, do you still maintain?

[00:36:17] Speaker 03:
Which dependent claims are you referring to?

[00:36:37] Speaker 03:
OK, there are specifics about the magazine catch bar in any number of the claims.

[00:36:55] Speaker 03:
Claim six, for example, talks about a catch pivot, which is in the embodiment of figure four.

[00:37:06] Speaker 00:
What about claim five?

[00:37:08] Speaker 03:
Excuse me?

[00:37:09] Speaker 00:
Claim five?

[00:37:11] Speaker 00:
What's that?

[00:37:11] Speaker 03:
Claim five, yeah, two separate extended members of one magazine catch.

[00:37:16] Speaker 03:
That's the modified catch bar, which is shown in figure four.

[00:37:22] Speaker 03:
There are two embodiments that are disclosed in the patent.

[00:37:25] Speaker 03:
Figure three, where you have a separate upper tension bar and magazine catch bar.

[00:37:31] Speaker 03:
Figure four, the two are an integral

[00:37:36] Speaker 03:
So those are the only two embodiments disclosed.

[00:37:41] Speaker 03:
And the case law is clear that even if you have all embodiments that have only a narrow limitation, that's not enough to be an unmistakable disavowal of the ordinary meaning of a claim.

[00:37:59] Speaker 03:
But those two embodiments are very different.

[00:38:03] Speaker 03:
And it shows that this can be done in a lot of different ways.

[00:38:06] Speaker 03:
Claims one and eight are not restricted to any particular way of doing it.

[00:38:12] Speaker 03:
And I think you asked the question, do you need to have something other than the OEM magazine catch bar?

[00:38:22] Speaker 03:
in order to make this operable.

[00:38:24] Speaker 03:
Well, you don't.

[00:38:27] Speaker 03:
In the Super Tool case, which is this is a consolidated appeal, that's exactly what the defendant does.

[00:38:34] Speaker 03:
It removes the assembly and then it installs the original OEM catch bar.

[00:38:43] Speaker 03:
That's why in the Super Tool case, we asserted claim 15.

[00:38:49] Speaker 03:
We did not assert it in this case, because they don't remove the original magazine catch bar.

[00:38:55] Speaker 03:
But they add the upper tension bar.

[00:38:57] Speaker 03:
And I think my time is up.

[00:38:58] Speaker 01:
Your time is up.

[00:38:59] Speaker 01:
We thank both sides.

[00:39:00] Speaker 01:
And the case is submitted.