[00:00:02] Speaker 04:
The United States Court of Appeals to the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

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The case for argument this morning is 20-1264, Game Vice Inc.

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versus ITC.

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Mr. Barney.

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Before we begin, this is Judge Dyke.

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I'd just like to mark the fact that this is

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the last argument in which Chief Judge Prost will preside as Chief Judge and that over the last seven years it's been a privilege and a great pleasure to sit on panels on which she has presided and to mark what an excellent job she's done in this and other respects as well.

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Well, this is Judge Prose.

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Thank you very much.

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And I look forward to having you be my presiding person on all future panels, Judge Dyke.

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This is Judge Cleven here.

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I'd like to join Judge Dyke's remarks in full.

[00:01:10] Speaker 01:
Thank you.

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Thank you very much.

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All right, Mr. Barney, your turn.

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Thank you, Your Honor.

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May it please the court?

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The commission erred in construing fastening mechanism and retention member as means plus function limitations despite the presumption against 112F that applies because of the absence of the word means.

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I'd like to begin with fastening mechanism and I'd like to start with the claim language itself.

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It's undisputed that claim one describes the fastening mechanisms as being interconnected with other structural components.

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In Tech Global, in POW, and in Samsung,

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This court held that such structural interconnectedness is consistent with structural claiming rather than functional claiming.

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Nintendo and the Commission don't dispute that there's structural interconnectedness in the claim.

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They only argue that this alone doesn't preclude 112F.

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We agree, but what Tech Global and Powell and Samsung stand for is that when you begin with a presumption,

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that 112F does not apply, which is the case here, structural interconnectedness in the claim language is consistent with that presumption.

[00:02:20] Speaker 01:
Well, Mr. Barney, this is Judge Prost.

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I don't think the specification contains any meaningful discussion of a fastening mechanism that would indicate the term stands for particular structure.

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Can you point, if I'm wrong, can you point me to something in the spec

[00:02:40] Speaker 04:
Sure, I would point to, first of all, the figures.

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So figure 16, if you go to appendix page 213, you see a figure that's described as a fastening mechanism.

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And the patent is consistent in using the term fastening mechanism to refer to particular structures and particular components.

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And that description can be found in columns 9 through 10, for instance.

[00:03:10] Speaker 01:
If you go to Appendix page 240... Well, don't all of these suggest that many different structures could stand in as useful fastening mechanisms as opposed to a particular structure or class of structures?

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Well, there's no question that the term fastening mechanism is a broad

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term and that yes, many different structures can fit within the definition of a fastener or fastening mechanism, but that alone does not mean that the term should be construed as a means plus function limitation.

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Greenberg was clear, the court was clear in Greenberg that just because a term takes its name from a function,

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and includes a wide variety of different structures and potentially even includes everything that performs that function, that does not convert it into a means plus function limitation.

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Mr. Barney, this is Judge Dyke.

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It seems to me that looking at specification, you have a problem.

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I mean, I could imagine a context in which fastening mechanism would denote structure.

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For example, if there were two pieces of metal that were

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being fastened together that, you know, a bolt and nut or a weld or something would be understood by someone skilled in the art as a fastening mechanism in that context.

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But here we have two things which seems to me quite unusual.

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First of all, the two things that are being connected to each other are not being directly connected.

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There's this intervening item of the cell phone.

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And second of all, when you look to the specification, it shows this soft draw latch is making the connection between the two, which is certainly a very unusual kind of fastening mechanism.

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So it seems to me there's nothing conventional about this situation and that your expert witness, in fact, didn't say anything about this kind of situation being something that someone skilled in the art would

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understand.

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It seems to be a unique type of situation, which wouldn't call forth the usual understanding of fastening mechanism in a more conventional context, such as metal to metal attachment.

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Your Honor, if I may, first of all, the claim is very clear that the fastening mechanism does secure two specific physical objects.

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It's securing, there's two fastening mechanisms in the claim.

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And they are securing the first confinement structure to the rigid structural bridge and they're fastening it.

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I don't think you're really addressing what I'm saying.

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The idea of attaching two things together with an intervening cell phone by a soft draw latch is certainly an unusual kind of situation.

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It isn't a conventional situation.

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such as a metal to metal attachment.

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I mean, am I wrong about that?

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I believe you are, Your Honor.

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In this claim, claim one, there's no intervening cell phone between the fastener.

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And so there's two fasteners in claim one, because it's plural fastening mechanisms.

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They are securing the first confinement structure, which is kind of one of the handheld units, to the rigid structural bridge, which is part of or included in what you're calling the cell phone.

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And then there's another fastening mechanism that is connecting the other side to that rigid structural bridge.

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So the fastening mechanism does not have an intervening component.

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OK, but the soft draw latch is kind of an unusual fastening mechanism, right?

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It isn't a conventional fastening mechanism.

[00:07:04] Speaker 04:
No, Your Honor.

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It's conventional.

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It's a draw latch, like you have on your toolbox.

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or like you would have on the old metal lunch boxes that you might have used in school.

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A draw latch is a very, very well-known conventional type of latch.

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I believe soft is just the fact that it's coated, it's rubberized, so it's a rubberized draw latch.

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It's prior art, and it's only disclosed as one preferred embodiment.

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If you look at column nine on appendix page 242,

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It discloses that as in one embodiment, a soft draw latch, such as that provided by SouthCo, have been shown to be a useful fastening mechanism.

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So I don't think there's anything unusual or exotic about a draw latch.

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And again, it's attaching two things in a very conventional manner.

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It's just two physical objects being connected together by a draw latch.

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So I just don't think there's anything exotic.

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About that Nintendo never made this argument that the latch itself is new or different that argument was never made below and had it made had it been made below.

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We certainly would have been able to rebut that with a mountain of evidence, but they never made that argument below, which is why the record doesn't have anything.

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on this particular argument they're now making that the draw latch itself is part of the invention.

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It is not.

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The invention is disclosed and described, for instance, in the summary of the patent.

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And that summary doesn't even talk about the fastening mechanism.

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So it's clearly not the gist or the point of novelty of the invention.

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Now, I would like to- The problem is that while they have put in expert testimony that the FEST mechanism would not be understood as meaning structure by someone skilled in the art, your expert didn't really

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do anything other than to say how he construed.

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He didn't tell us what was referenced to any industry practice or anything like that.

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This denoted structure.

[00:09:20] Speaker 04:
Well, our expert did explain that a fascinating mechanism would be known to a person of ordinary skill in the art.

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He gave many examples of what the fascinating mechanism could be.

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And I would go back to the fact that we have to start with the intrinsic evidence.

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So before we even dive into the extrinsic evidence, we have the intrinsic evidence.

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We have interconnectedness in the claim language, which Nintendo and the commission don't dispute that there's interconnectedness.

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And under Tech Global and Powell, that interconnectedness is intrinsic evidence supporting the presumption against 112F.

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We've also got in the specification

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multiple embodiments in which the applicant used the term fastening mechanism to refer to these embodiments, which are illustrated as physical structures with physical components.

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And again, under Tech Global and Powell and Samsung,

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the use, the consistent use of a term to refer to physical components in the specification is consistent with the presumption against 112F.

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So before you even get to the extrinsic evidence, we have the claim language, we have the presumption, we have interconnectedness, and we have consistent usage across multiple embodiments in the specification, all of which is intrinsic evidence supporting the legal presumption against 112F.

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I would submit that in that situation,

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where all of the intrinsic evidence is in support of the presumption and there is zero intrinsic evidence that rebuts or cuts against the presumption against 112F is really not necessary.

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And I would argue it's erroneous to then go to the extrinsic evidence to see if that presumption can nevertheless still be rebutted somehow.

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With respect to what the extrinsic evidence showed, what it showed was that fastening mechanism is a very broad term.

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That includes essentially every mechanism that fastens.

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In other words, it's synonymous with fastener, which is exactly what we argued in terms of the Blackbird logic, the Blackbird decision.

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That was the testimony of Gamebys's expert, that it was a broad term that essentially covered everything that fastens.

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And it was also clear- It's so broad that it performs

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It includes anything that could perform the function.

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Doesn't that sort of suggest that it's a means plus function term rather than something that denotes a particular structure?

[00:11:47] Speaker 04:
No, Your Honor.

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The function in the claim is securing.

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And I disagree that the fastening mechanism, even under our expert's testimony, did not say that anything that performs the securing function is a fastening mechanism.

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You can secure two things together with, for instance, a friction interference fit.

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But that's not using a fastener.

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That's not using a fastening mechanism.

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Fastening mechanisms is a well-known class of mechanical structures known to those in the mechanical arts.

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It's not everything that secures.

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It's fasteners.

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And as the court in the Blackburn case... But it's everything that fastens, right?

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It arguably is everything that fastens, that's correct.

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It's a fastener.

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And fastener has been held to be structural in countless lower court decisions, not one from this court that I could find, but I think it's, those district court decisions are not binding on this court, but they illustrate our point.

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that terms like fastener or fastening mechanism or fastening device are ubiquitous in mechanical patents.

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They show up all the time.

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And the lower courts have had no problem consistently construing those to be structural.

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And the fact that they're broad and they could include, let's say, something like scotch tape just means it's a broad term.

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And under this court's Greenberg decision and its progeny, the mere fact that a term is broad, that it has great breadth,

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does not equate to a lack of structural definiteness.

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And so we think that's the situation here.

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If I could, Your Honor, I'd like to switch to the other term at issue, unless there's other questions on fastening mechanism.

[00:13:36] Speaker 01:
Are you moving towards retention member, Mr. Barton?

[00:13:39] Speaker 04:
Yes, Your Honor.

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Let me just ask you one preliminary question about that.

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The commission says there's no dispute that there is no violation if the retention member is subject to means plus function treatment.

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Do you agree with, is that statement correct?

[00:13:58] Speaker 04:
Not quite, Your Honor.

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There's no dispute if the exact construction that the commission applied stands, then that is a correct statement.

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But we argue that

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Even if it's construed under 112F, which we don't think it should be, but even if it is construed under 112F, the cylindrical shape of that retention member should not be part of the corresponding structure because even the Commission concedes that it doesn't have anything to do with the function that's being performed.

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The Commission was very clear and very specific about what it identified as the

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aspect.

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What is your view as to what is properly the corresponding structure?

[00:14:41] Speaker 01:
What have you proposed as the corresponding structure?

[00:14:46] Speaker 04:
If it's construed as 112F, the corresponding structure is the recess or opening in the retention member 266.

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And that's not just me saying that, that's what the commission said.

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So if you look at page 43 of the appendix, appendix page 43, which is part of the commission's

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Middle of the page, this is where the commission is talking about the corresponding structure.

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And the commission says that the structure for performing the function of interacting with the fastening detente to restrain the structural bridge to a control module is the recess or opening of retention member 266 that captures the fastening detente 264.

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And in fact, that recess or opening is actually also in game visors proposed construction.

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Because we propose a structural construction

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that hewed closely to what the specification discloses.

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The cylindrical shape of the retention member has nothing whatsoever to do with performing that function, and that's from the Commission's own decision.

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And so we would submit that even under 112F, which again we don't believe should apply, but even if it does, the cylindrical shape should not be part of that corresponding structure under this Court's humanata decision and its progeny.

[00:15:57] Speaker 04:
And if that's the case, then we would not agree that the case is over, because the cylindrical shape was the one aspect that was important.

[00:16:09] Speaker 01:
I think I heard James, you can correct me if I'm wrong, but I do think I heard the bell ring.

[00:16:14] Speaker 01:
Am I right about that, James?

[00:16:18] Speaker 04:
That is correct, Judge Crouse.

[00:16:19] Speaker 04:
OK.

[00:16:20] Speaker 01:
So you're now into your rebuttal time, Mr. Barney, your choice to say that or to hear from the other side.

[00:16:27] Speaker 04:
Your Honors, unless there are specific questions about retention member or anything else, I will reserve the rest of the time.

[00:16:34] Speaker 01:
Okay.

[00:16:34] Speaker 01:
Thank you.

[00:16:36] Speaker 01:
Ms.

[00:16:37] Speaker 01:
Fischerow?

[00:16:38] Speaker 01:
Sorry.

[00:16:40] Speaker 00:
Yes, Your Honor.

[00:16:43] Speaker 00:
Thank you.

[00:16:44] Speaker 00:
May I please support?

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Both of the terms at issue here should be subject to Means Plus Function Treatment.

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In order to avoid 112F,

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Each term must note a particular structure or class structures known in the art.

[00:17:00] Speaker 00:
There's just no such evidence in the record here.

[00:17:02] Speaker 00:
The Commission's factual findings on the extrinsic record are consistent with the claims in the specification, which do not establish the terms here or the name for structure or class of structures.

[00:17:16] Speaker 00:
GameBytes chose not to offer any dictionary definitions for either term before the ALJ.

[00:17:21] Speaker 00:
And Mr. Steuben, its own expert, testified for both of these terms that anything that performs the function would meet the limitations.

[00:17:31] Speaker 00:
Turning to the term fastening mechanism, I first want to discuss the evidence of record and then discuss the Blackbird case.

[00:17:39] Speaker 00:
Here, mechanism is an undisputed nonce word.

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And fastening is an undefined functional term.

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The term fastening mechanism itself does not note a structure or class of structures to a person of skill in the art.

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And there's nothing in the extrinsic or intrinsic record that changes this.

[00:18:00] Speaker 00:
The disclosure of the claims and specifications do not establish that the term is a name for a structure or class of structures known in the art.

[00:18:08] Speaker 00:
Admissions from Mr. Steuben support the commission's determination.

[00:18:13] Speaker 00:
Specifically, Mr. Steuben testified or was asked, Mr. Steuben is the phrase fastening mechanism, a phrase that denotes the definite structure or class of structures in the art, in the relevant art.

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He answered to me, fastening mechanism means anything that fastens.

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He was also asked, and I quote, now would any structure that's capable of performing that function meet the definition of a fastening mechanism?

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And he responded, yes.

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These admissions confirm that the terms do not have an established structural meaning.

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Additionally, testimony from Mr. Steuben explaining what fasting mechanism covers is actually a laundry list of fasting mechanisms that do not limit the terms to a class of structures.

[00:19:02] Speaker 00:
Mr. Steuben's list of possible fasting mechanisms

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included both mechanical components, like screws, pins, rivets, and other methods for fastening, including welding and safety.

[00:19:15] Speaker 00:
Welding and safety... Ms.

[00:19:16] Speaker 01:
Fisher-Roe, could I just ask you a question about that?

[00:19:18] Speaker 01:
If we were to conclude that fastening mechanism means fastener, would that have any impact on what we're doing here?

[00:19:29] Speaker 00:
I don't think so, Your Honor.

[00:19:30] Speaker 00:
Here, the term fastener is not in the record.

[00:19:33] Speaker 00:
And what we need to do is look to the record, right?

[00:19:38] Speaker 01:
But my hypothetical was that we had already concluded that fastening mechanism means fastener.

[00:19:45] Speaker 01:
So we're past that point.

[00:19:48] Speaker 01:
So my question is, hypothetically, if we were to conclude that, would that change the outcome?

[00:19:54] Speaker 00:
There's nothing here in this record, though, defining what fastener means in the context of this case.

[00:20:01] Speaker 00:
I mean, there's no dictionary.

[00:20:03] Speaker 00:
There's no expert testimony.

[00:20:04] Speaker 00:
So we don't know what the scope of the fastener is in the context of this patent.

[00:20:10] Speaker 00:
And so I don't think it would change the outcome at all because here you don't know what it means.

[00:20:16] Speaker 00:
And the only thing that we have in the record is the Blackbird case where

[00:20:22] Speaker 00:
the court would be importing a definition and discussion from that case into this investigation, which is not appropriate.

[00:20:33] Speaker 00:
So no, I don't think it would change anything.

[00:20:37] Speaker 00:
If I may, I was going to return back to the heat staking and the welding testimony from Mr. Steuben, which are not even mechanisms here.

[00:20:51] Speaker 00:
These different methods of fastening are not mechanisms and do not establish that fastening mechanism is a class of structures, even in the art.

[00:21:07] Speaker 00:
Mr. Barney referenced Greenberg, and this case does not attend to the functional terms in Greenberg.

[00:21:18] Speaker 00:
Not every object that performs a function falls within a class of nouns, like clamp or break, discussed in Greenberg.

[00:21:26] Speaker 00:
For example, my foot is not a break if I can use it to slow myself down on a bicycle.

[00:21:32] Speaker 00:
Mr. Steuben, testimony that any... This is Judge Proctor.

[00:21:36] Speaker 01:
I'm sorry to interrupt, but time is short.

[00:21:38] Speaker 01:
So let me ask you a question, move you to retention member.

[00:21:42] Speaker 01:
Sure.

[00:21:43] Speaker 01:
I just wondered how the shape of the identified cylindrical post or column plays or what role it plays in performing the claimed function.

[00:21:55] Speaker 00:
So what the commission did in construing the retention number was look to the only structure disclosed in the specification.

[00:22:03] Speaker 00:
And as you know, the specifications here are very limited with regard to the disclosure

[00:22:10] Speaker 00:
as to the retention member.

[00:22:12] Speaker 00:
There's one paragraph in the specification, and there is one figure.

[00:22:18] Speaker 00:
And that figure shows the retention member.

[00:22:24] Speaker 00:
There's nothing in the specification that describes the structure of the retention member, only the functions that it carries out and that it interacts with the fastening detent.

[00:22:35] Speaker 00:
And here, what the commission did is look to the figure.

[00:22:39] Speaker 00:
And figure 14, and specifically 266, is the only structure illustrated and discussed for the retention member.

[00:22:50] Speaker 00:
And it's a cylinder.

[00:22:52] Speaker 00:
And what the commission did was provide height to this.

[00:22:55] Speaker 00:
And that height, and it's that fast-seam mechanism,

[00:23:00] Speaker 00:
retention member, I'm sorry, with the recessor opening that carries out the function of restraining the structural bridge.

[00:23:08] Speaker 00:
And based on the figure, the catch 268 receives the illustrated cylinder to help restrain and secure the second confinement structure to the structural, I'm sorry,

[00:23:26] Speaker 00:
restrain the structural bridge to a control module of the Paris Control Module.

[00:23:31] Speaker 00:
So here, what the commission did is look to the only disclosure possible in the specification to make its determination as to the corresponding structure.

[00:23:43] Speaker 02:
Does it make a difference, as Judge Dyke, does it make a difference that we're talking about a structure here which is a bit complicated as opposed to a situation, let's say,

[00:23:56] Speaker 02:
where you're talking about a metal to metal fastening.

[00:24:05] Speaker 00:
Going back to the fastening mechanism, I do think it makes a difference in that Mr. Steuben's testimony that anything can do this is contrary to the disclosure, which does have

[00:24:24] Speaker 00:
more unique types of fasteners, right?

[00:24:27] Speaker 00:
They're not the pin screws rivets that Mr. Steuben said could be within as possible fastening mechanisms.

[00:24:39] Speaker 00:
And so I do think it does show and evidence that here the term is not the name for structure to a person of ordinary skill in the art.

[00:24:53] Speaker 00:
There are no further questions, Your Honor.

[00:24:56] Speaker 00:
I respectfully request that the Court affirm the Commission's determination.

[00:25:02] Speaker 01:
Okay.

[00:25:03] Speaker 01:
Mr. Kinsel, you're dividing time, so you've got seven minutes.

[00:25:07] Speaker 03:
Thank you.

[00:25:08] Speaker 03:
If it pleases the Court, Grant Kinsel for Nintendo.

[00:25:11] Speaker 03:
I wanted to pick up, if I could, just on the last bit of the conversation between Ms.

[00:25:19] Speaker 03:
Fischernau and Judge Dyke regarding whether the

[00:25:23] Speaker 03:
Fastening mechanisms described in the specification are conventional or otherwise.

[00:25:30] Speaker 03:
It is quite clear that we're not talking about conventional screws, nuts, and bolts, for example, with respect to these fastening mechanisms.

[00:25:42] Speaker 03:
The specification discloses two specific types of fastening mechanisms.

[00:25:49] Speaker 03:
One is a soft draw latch.

[00:25:53] Speaker 03:
And the other is a slotted guide aperture that interacts with an attachment boss.

[00:25:59] Speaker 03:
These are not conventional screws, nuts, and bolts.

[00:26:03] Speaker 03:
And in fact, if you look at figure, for example, figure 28 at appendix 223, you'll see that there are conventional screws shown in this specification, or at least in this figure.

[00:26:18] Speaker 03:
Those are never described as fastening mechanisms in the specification.

[00:26:22] Speaker 03:
So we're not talking about conventional screws and nuts and bolts.

[00:26:26] Speaker 03:
We're talking about something very different and something that's only defined in the claims by the function that it performs as opposed to the structure that it has.

[00:26:38] Speaker 03:
What we know based on the claims is that whatever the fastening mechanism is, it can perform the function of securing.

[00:26:45] Speaker 03:
And as counsel has already alluded to,

[00:26:52] Speaker 03:
GameVise's own expert agrees that this is just a purely functional definition.

[00:26:57] Speaker 03:
It covers anything that fastens.

[00:27:00] Speaker 03:
And that's not structural.

[00:27:02] Speaker 03:
That's functional.

[00:27:03] Speaker 03:
That's very different from, for example, the screwdriver or the clamps and so on, filters.

[00:27:10] Speaker 03:
Another example that you see in Greenberg where a structure takes its name from the function it performs but still denotes

[00:27:20] Speaker 03:
a particular structure or class of structures known in the art.

[00:27:25] Speaker 03:
Now, I did also want to respond to something that Mr. Barney had mentioned.

[00:27:31] Speaker 03:
He said that Nintendo never made the argument that the soft draw latch and the slotted guide aperture were not conventional.

[00:27:43] Speaker 03:
We never made that argument below.

[00:27:46] Speaker 03:
The fact of the matter is that Gamevice never suggested that fastening mechanisms meant conventional fasteners such as nuts and bolts or screws.

[00:28:02] Speaker 03:
Gamevice's position has always been, and in fact I think Mr. Barney reiterated it again during oral argument, that fastening mechanism just means anything that fastens.

[00:28:12] Speaker 03:
So we're talking about

[00:28:14] Speaker 03:
scotch tape, we're talking about your fingers holding two things together, we're talking about literally anything that can perform that function, and that's the very, very definition of a means plus function term.

[00:28:30] Speaker 03:
In terms of the retention member structure, the only real difference between the commission's position and Nintendo's position is on

[00:28:41] Speaker 03:
the corresponding structure for retention member.

[00:28:47] Speaker 03:
The court need not necessarily reach that decision to affirm the commission's judgment of no violation since Gamevice has conceded that if the 112F construction from the commission is affirmed, there's no violation.

[00:29:09] Speaker 03:
Having said that, Nintendo's position is that the specification doesn't describe any corresponding structure for this retention member.

[00:29:20] Speaker 03:
The commission focused on the circular element 266 in figure 14 as the retention member.

[00:29:32] Speaker 03:
But in fact, the specification describes two different things as the retention member,

[00:29:40] Speaker 03:
specifically 266 and 268.

[00:29:44] Speaker 03:
And while the commission found that 268 was a typo, the reference to 268 was a typo, that's simply wrong.

[00:29:55] Speaker 03:
But in any case, the specification does not clearly link any of these structures to the function that's supposed to be performed.

[00:30:06] Speaker 03:
The quid pro quo for using the kind of functional language that Game Buys used in its claims is to clearly link the structure in the specification for performing that function.

[00:30:18] Speaker 03:
And there is no clear linkage between 266 and the function of restraining a control module to a structural bridge.

[00:30:29] Speaker 03:
And so the court should either find, either affirm the commission on the grounds that

[00:30:37] Speaker 03:
that there's no infringement on a no infringement finding or that the claim is invalid, as indefinite.

[00:30:50] Speaker 03:
Unless the court has particular questions for me, I'll yield the rest of my time.

[00:30:56] Speaker 01:
Thank you.

[00:30:57] Speaker 01:
Thank you.

[00:30:58] Speaker 01:
Mr. Barney, three minutes on rebuttal, please.

[00:31:02] Speaker 04:
Thank you, Your Honor.

[00:31:03] Speaker 04:
Just a few points, and I'm just going to do this in reverse order.

[00:31:06] Speaker 04:
I believe Mr. Kinsel just conceded that they did in fact waive this argument that the softball latch and the other fascinating mechanisms disclosed in the patent are unusual and novel.

[00:31:20] Speaker 04:
I expected when he said that we've accused them of waiver that he was going to point your honor to something in the record where they raised the argument.

[00:31:26] Speaker 04:
The fact of the matter is they didn't raise the argument and he couldn't point to anything in the record where they did raise it.

[00:31:32] Speaker 04:
Second, and so I don't think it would be appropriate to allow them, allow that argument to essentially have oxygen here when we never had a chance to actually rebut it during the proceedings below, because had we had that opportunity, we absolutely would have rebutted that argument very forcefully with evidence.

[00:31:49] Speaker 04:
On the question of whether Greenberg, whether this case is like Greenberg, counsel said this case is very different.

[00:31:57] Speaker 04:
The fastening mechanism is very different from

[00:31:59] Speaker 04:
a term like detente or clamp or filter, he doesn't explain why.

[00:32:05] Speaker 04:
A fastening mechanism, fastening is a noun that's established by the dictionary definitions that were set forth in the Blackbird decision.

[00:32:13] Speaker 04:
We also made that point to the ALJ during oral argument.

[00:32:16] Speaker 04:
Fastening is a noun and it is synonymous with fastener.

[00:32:19] Speaker 04:
A fastener is no different than a detente, a clamp or a filter in terms of it is something that takes its name from structure.

[00:32:26] Speaker 04:
And this court has a long tradition after Greenberg of noting that many terms take their name from structure.

[00:32:34] Speaker 04:
And yes, those do tend to be broad terms.

[00:32:37] Speaker 04:
But as the court has pointed out many times, it is the claim drafter's prerogative to use broad terminology.

[00:32:43] Speaker 04:
And any risk they take with respect to the scope of that claim reading on the prior art is their risk.

[00:32:50] Speaker 04:
But that does not mean that the mere breadth of a term like fastener

[00:32:54] Speaker 04:
or fastening mechanism should be thrown into the 112F category merely because of its breadth.

[00:33:01] Speaker 04:
And I believe that's what the commission did here.

[00:33:04] Speaker 04:
It had a response to the sheer breadth of the term fastening mechanism.

[00:33:09] Speaker 04:
And it confounded breadth of a structural breadth with lack of structure, which is incorrect under Greenberg.

[00:33:17] Speaker 04:
And the last point that I would like to make is just to respond to Ms.

[00:33:21] Speaker 04:
Fischerau who said that there is no

[00:33:24] Speaker 04:
When she was asked, what would you do if the court were to find that fastener and fastening mechanism were synonymous?

[00:33:30] Speaker 04:
And she said, well, the problem is there's no dictionary definition of fastener in this case.

[00:33:34] Speaker 04:
First of all, I really don't think we need a dictionary definition of fastener in this day and age.

[00:33:39] Speaker 04:
But even if we did, there are dictionary definitions set forth in the Blackburn District Court decision, which we cited and relied upon below.

[00:33:49] Speaker 04:
That decision cites the Webster's Third New International Dictionary as well as the Oxford English Dictionary.

[00:33:55] Speaker 04:
making the point that the word fastening is a noun and it's interchangeable with the word fastener.

[00:34:01] Speaker 04:
And we also submitted additional dictionary definitions in our briefing to the Commission and those are included in the appendix in this appeal.

[00:34:09] Speaker 04:
So I just disagree with dictionary definitions upon which the court could rely.

[00:34:16] Speaker 04:
Unless there's any questions, it sounds like I'm finished.

[00:34:19] Speaker 01:
Yes.

[00:34:20] Speaker 01:
Thank you.

[00:34:20] Speaker 01:
We thank all sides and the cases submitted.

[00:34:23] Speaker 01:
That concludes our proceeding for this morning.

[00:34:25] Speaker 01:
Thank you.

[00:34:28] Speaker 04:
The Honorable Court is adjourned from day to day.