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The United States Court of Appeals for 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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All right.

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Council, are we ready to begin?

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Yes, your honor.

[00:00:18] Speaker 01:
OK.

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Mr. Day, you'll have three minutes for rebuttal.

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Thank you.

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You may begin.

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Well, good morning, your honors, and may it please the court.

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This is James Day on behalf of Level Sleep.

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Now, this appeal turns on claim construction.

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There's no dispute that under the district court's original construction of the terms low body pressure and low supporting surface pressure, summary judgment was improper.

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That original construction was pressure of a level which materially

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reduces causes of bed-induced shifting.

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And the district court acknowledged both during the summary judgment hearing and in the order granting summary judgment that level sleep submitted admissible evidence showing that the accused beds meet that original claim construction.

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Is it your position, Mr. Day, that the district court judge has no authority to alter

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its claim construction position?

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No, Your Honor.

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We're not suggesting that he could not have changed it.

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What we're saying is he did change it and he changed it in the summary judgment order.

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So we submitted evidence that met the original construction and in the summary judgment order he applied an additional limitation, which is the only way

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that summary judgment was granted.

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So, are you saying that it was noticed that that was the problem?

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Well, frankly, I'm not saying there was no notice.

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Right.

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I think the problem is that we were not given the opportunity to evaluate infringement under the construction that was applied in the summary judgment order.

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For instance, we didn't consider whether the doctrine of equivalence might apply.

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That's a problem.

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I think the more fundamental problem here, Your Honor, is the judge adopted a construction that imported a limitation of 40 millimeters of mercury into the claims without full briefing.

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That construction was never suggested during the Markman proceedings until a rebuttal argument in the oral argument.

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It was the first time that 40 was suggested as some sort of numeric limitation.

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The judge rejected.

[00:02:47] Speaker 01:
Well, didn't the court in its first claim construction, didn't it mention figures four and 10 and talk about outer limits?

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Sort of in the second half of its construction?

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Yeah, in the claim construction order, the judge said that there were, it mentioned it upper limits and cited to figure 10 in the 172 patent and I think it's a two sentence passage.

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He did not say that 40 is an upper limit.

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And in the proceedings, neither party in their papers had said 40 was an upper limit.

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What we had suggested was that if you were going to use figure 10 and the related text to impose numeric limitations, it should be what's illustrated there, 80 at the shoulders, 40 at the waist, and 80 at the hips.

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So we understood him to reject numeric limitations, but had he

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had he adopted one, or if that upper limit was based on figure 10, it should have been based on the figure, not the pressure at the waist in that figure.

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So the logic didn't follow.

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And I think the problem with where we ended up is you've got a construction that was never fully argued by the two parties until we get to this appeal.

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Counsel, this is Judge Stoll.

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I didn't quite understand your brief to be raising the notice problem that you're talking about.

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I certainly understood your brief to be challenging the district court's modified construction.

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Where in your brief do you talk about a notice problem and talk about how you would have presented other evidence to argue doctrine of equivalence, for example, had you known of the court's client construction?

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Your Honor, we did not say that in our briefing.

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I'm trying to explain

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I guess two things.

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One is the appeal is not based on lack of notice.

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The lack of notice I think is what leads to an incorrect construction.

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It's sort of just the procedural history led us to a place where you have what I think is a facially incorrect construction.

[00:04:57] Speaker 00:
Okay, so but you're relying on, just to interrupt for a minute, you are relying on conventional doctrines of claim construction for your argument.

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that the district court's construction is incorrect.

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I'm not going to look at the history, for example, of where that construction, how it was modified by the court, because you haven't really raised that.

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Instead, your argument is that based on the intrinsic evidence, the plain claim language and specification, the district court went too far in setting a particular limit on the claim term low pressure, right?

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That's correct, Your Honor.

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The appeal turns on the correct construction

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which we think is the original construction that the court issued, and that imposing a limit of 40 is simply an incorrect construction.

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And if you agree with that, then summary judgment was incorrect.

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The only way that summary judgment could be entered was by adding that further incorrect limitation.

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Well, even assuming that we believe that the original construction wasn't bounded at all,

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which in my mind you'd have to take out this whole discussion of figures four and 10, that construction would be indefinite, would it not?

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Well, I'm not suggesting that the construction is not bounded, Your Honor.

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What we're suggesting is you don't need a specific numeric limitation.

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The terms low body pressure, low supporting surface pressure have an objective boundary, an objective baseline.

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pressure of a level that materially reduces the causes of bed induced shifting.

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So that's an objective measure.

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Materially as compared to what?

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Well, as compared to conventional mattresses.

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Meaning inner spring mattresses, right?

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Yeah, that's correct, Your Honor.

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So the patent tells us conventional mattresses are inner spring mattresses.

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And it provides an example of such a conventional innerspring mattress in figure 10.

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We see a woman of a particular size lying on that conventional innerspring mattress.

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It shows that her body is not aligned.

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Her back is sagging in the middle.

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And it gives us the pressures that such a person would typically experience.

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They're 80 at the shoulders and hips, 40 at the waist, 30 on the legs.

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And then in the very next figure, figure 11, it shows that same person lying on one embodiment of the inventive mattress.

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And you can see what the invention is about is having different zones of different firmness foam so that at the shoulder and the hips, the body is allowed to compress further into the mattress.

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This is just Toronto.

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Can I just ask this?

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Am I remembering incorrectly that

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Was it column 16?

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Column 15 talks about figure 10 and explains that's not a very satisfactory situation.

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And then column 16 talks about figure 11 with the improved mattress.

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Am I remembering right that column 16 says that in figure 11, not just the waist and legs, but the hips and shoulders are down around 30?

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Well, so with the language I think you're thinking of, Your Honor, is, let me get to that.

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What it says is you'll have, let's see if I'm looking at the same thing.

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Yeah, in column 16, there's a statement that says the pressure will be typically low and below a low pressure threshold.

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And for a tuned bed made of properly selected foams and materials, that pressure threshold will be below the ischemic pressure, or 30.

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So with that, there's a couple of things to note here.

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One, it's not limiting the invention to 30.

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What it's saying is you may have low pressure, which is the language of claim one, the independent claim.

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It can also be below a low pressure threshold, which is recited in Dependent Claim 11, which narrows the concept of low body pressure.

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And really, in an ideal case, the preferred embodiment would get all of the pressures down to the ischemic pressure threshold of about 30.

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And that's Claim 12, the narrowest of those dependent claims that we talk about.

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Another thing to note here, and so when I read this, when we read this language, it's telling us about the preferred embodiment, a preferred embodiment of this invention.

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It's important to note though, Your Honor, that this language doesn't appear with every embodiment.

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In our reply brief, we cite a discussion of another embodiment where it doesn't refer to the ischemic pressure at all.

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It does say that the surface pressure at the shoulder

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and the hips will be low.

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It doesn't mention lowering pressure at the waist.

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Where in this spec are you referring to?

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It's our reply brief.

[00:10:33] Speaker 02:
Actually, here we go.

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It's in column 30.

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So in column 30, starting at lines, it's 23 through about 28.

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It talks about, you know, there's reduced pressure at the shoulder because the zone allows the shoulder to compress further into the mattress.

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Then there's some talk about the waist providing support for the waist and holding the body in alignment, which is, you know, part of what this invention requires.

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And then later in column 30 toward the bottom,

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starting at line 60, there's discussion that the hip is also allowed to compress further into the mattress, creating low surface pressure.

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So there, there's no mention of ischemic pressure here.

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And so what the specification is telling us in these examples and in others that refer to the ischemic pressure as an ideal mattress would reach the ischemic pressure, and the invention is

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is intended to better approach those ideal characteristics.

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The patent is teaching us that you can improve on the pressure and alignment of prior art mattresses by reducing the causes of bed-induced shifting.

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So you reduce the pressure, particularly at the shoulder and the hips, to reduce tossing and turning.

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And in an ideal case, in the best case,

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the preferred case, you would get all the way down to the ischemic pressure threshold.

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Again, that's confirmed by the way the claims are structured, which start with low body pressure, low supporting surface pressure, and then only in a dependent claim give you that ischemic pressure threshold.

[00:12:27] Speaker 00:
Mr. Day, this is Judge Stoll.

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I want to ask you about another sentence that I don't think you've mentioned in the specification, and that's, for example,

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at JA 93, column 9, line 32 through 35.

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And there there's what appears to be, you know, a lexicographical definition.

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It says the terminology low body pressure means a pressure which is below a pressure threshold, typically the ischemic threshold for comfortable sleep and a level which materially reduces causes of bed induced shifting.

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And I know it has that part about the comfortable sleep and level of, you know, and so on.

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But it says it means the pressure, which is below a pressure threshold.

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So that seems to be some sort of express definition coming from the inventors.

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And then when you have to look through the specification then to understand what that pressure threshold is, right?

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I do agree with that as being a proper approach for claim construction.

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As to your first part of the question, I do think the sentence that you're citing in column nine is important.

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It tells us that low body pressure is pressure of a level which materially reduces causes of bed and due shifting.

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That gives us the objective baseline we need or that a person of ordinary skill in the art needs to assess the term low body pressure and low supporting surface pressure.

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The first part of the sentence tells us something about pressure for comfortable sleep, which is not part of the district court's construction and, frankly, is somewhat subjective.

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So it tells us what the goal is, but it doesn't add to the objective baseline for assessing whether the pressure is low-body pressure, which is based on reducing tossing and turning, reducing the causes of bed-induced shifting.

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In the parenthetical, it says that this comfortable sleep, pressure for comfortable sleep is typically the ischemic threshold, which again tells us that it's not limited to the ischemic threshold.

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And again, this is consistent with the read of this patent as saying the ideal embodiment, the preferred embodiment.

[00:14:51] Speaker 00:
I mean, the other, I understand your answer.

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I truly do.

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I want to ask you though quickly about column one, line 63 through 66.

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And that says that when parts of the body, usually the shoulders and hips and the conventional mattress are subjected to pressures above the ischemic threshold, discomfort results, and hence the person shifts to remove the discomfort and direct to tissue damage.

[00:15:17] Speaker 00:
How,

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Shouldn't I be reading that as saying that when the pressure is, you know, above the ice-steaming pressure, that's going to cause bed-induced shifting?

[00:15:28] Speaker 00:
Isn't the patent here pretty much stating that?

[00:15:33] Speaker 02:
Well, yes.

[00:15:35] Speaker 02:
Your Honor, your read of that sentence is right.

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The pressures above the ice-steaming threshold can cause tossing and turning, but the patent does not say that you must eliminate tossing and turning.

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describes low body pressure as reducing, materially reducing the causes of bed-induced shifting.

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So if you go back to figure 10, you've got pressures of 80 at the shoulder and hips.

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If you reduce those pressures, and this is how our experts analyze the evidence, if you reduce those pressures of 80 down to, say, 45, you will reduce

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the number of shifts in the night.

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They're not eliminated, but the patent doesn't require eliminating.

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That, in an ideal mattress, would get down to the ischemic pressure, which would either completely reduce or eliminate tossing and turning.

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But that's only in an ideal embodiment of the invention.

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It's not required in order to practice the invention.

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There are no statements in this patent that say the invention as a whole

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achieves in all embodiments sub- ischemic pressures.

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There's no reference to the ischemic pressure in the title or the abstract or the summary of the invention.

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It's mentioned in the kind of language I was talking about earlier where it describes some of the embodiments.

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If you choose carefully the right type of foam and tune the bed properly, you will achieve that.

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That's the preferred embodiment.

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It would be inappropriate to use that to limit the claims.

[00:17:15] Speaker 01:
Counsel, before you sit down, and I will give you some time for rebuttal, but this is Judge O'Malley.

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I just want to pin something down.

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So I assume that if we agree with you that there should be no upper limit as long as some comparison can be made to an inner spring mattress that you believe

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summary judgment was inappropriate because the calculations don't support a conclusion that there's no material issue of fact.

[00:17:46] Speaker 01:
And I assume that if we believe that the upper limits should be as set out in Figure 10, 80, 40, 80, that you also believe that summary judgment was inappropriate.

[00:18:02] Speaker 01:
My question is,

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If we agree with the district court that 40 is the upper limit, is there any basis to argue that summary judgment is inappropriate at that level?

[00:18:22] Speaker 02:
I don't believe that the record evidence and the infringement contentions we made based on the original construction provide a basis to change the decision if 40 is an upper limit.

[00:18:34] Speaker 02:
I would go back to the point I made at the beginning that the evidence does show that the P5 mattress achieves pressures of 43 at the maximum in an average of 17, which may very well infringe under the doctrine of equivalence.

[00:18:49] Speaker 02:
And that's something that just wasn't before us until the summary judgment order was issued.

[00:18:54] Speaker 01:
Okay.

[00:18:55] Speaker 01:
Thank you.

[00:18:56] Speaker 01:
All right.

[00:18:56] Speaker 01:
I'll restore your three minutes for rebuttal.

[00:18:59] Speaker 01:
And Mr. Cordell, if you need three more minutes, we'll give it to you, too.

[00:19:06] Speaker 01:
Mr. Cordell?

[00:19:08] Speaker 04:
Thank you.

[00:19:09] Speaker 04:
May I proceed?

[00:19:11] Speaker 01:
No, I have a question first before we start your clock.

[00:19:14] Speaker 01:
Oh, sure.

[00:19:15] Speaker 01:
You have marked an inordinate amount of things as confidential.

[00:19:21] Speaker 01:
And essentially, much of the discussion of the pressure levels and the inventor testimony has also been marked as confidential.

[00:19:34] Speaker 01:
It's a little difficult for me to understand how something that was the basis for the court's summary judgment motion could ever remain confidential.

[00:19:43] Speaker 01:
But I guess I'm trying to understand how we talk to you about some of these calculations.

[00:19:52] Speaker 04:
Thank you, Laura.

[00:19:54] Speaker 04:
Much of what was designated in the supplemental appendix was... I can't say that it was all on our watch, if I can.

[00:20:06] Speaker 04:
It came from both sides.

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And I think what happened was reflexively when the court requested the additional appendix materials last week, we simply maintained those designations.

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as had been set before the district court, I do not believe that much of that is confidential.

[00:20:27] Speaker 04:
So I think that if there are issues that come up during the argument, I'll highlight them, but I seriously doubt that we will run afoul of any confidentiality concerns.

[00:20:38] Speaker 01:
Okay.

[00:20:39] Speaker 01:
One second.

[00:20:39] Speaker 01:
Mr. Day, do you agree with that?

[00:20:43] Speaker 02:
I agree with that, Your Honor.

[00:20:45] Speaker 02:
I think... Okay.

[00:20:47] Speaker 02:
That is how the supplemental appendix was put together, and I frankly doubt there will be any discussion of anything sleep number, thinks it's confidential.

[00:20:54] Speaker 02:
I'm not concerned with confidentiality from level sleep side.

[00:20:59] Speaker 02:
Okay.

[00:21:00] Speaker 02:
All right.

[00:21:00] Speaker 02:
With regard to this argument.

[00:21:02] Speaker 01:
Okay, let's proceed then.

[00:21:03] Speaker 01:
Thank you both.

[00:21:06] Speaker 04:
Thank you, honor maid.

[00:21:07] Speaker 04:
Please support Russell Cordell for sleep number.

[00:21:10] Speaker 04:
I do agree that this is an appeal that is largely resolvable on claim construction.

[00:21:17] Speaker 04:
I think that the definitional statements that Judge Stone asked about during my brother's time really does define the case.

[00:21:30] Speaker 04:
We have the happy fact that in this case, the inventors actually gave us their view of the proper definition of the key term, low-body pressure.

[00:21:40] Speaker 01:
Is it your view, are you asking us to say that the district court's claim construction was actually wrong and that the maximum has to be the ischemic level or are you saying that the district court's maximum of 40 is correct?

[00:21:56] Speaker 04:
The latter, Your Honor.

[00:21:57] Speaker 04:
The maximum of 40 is correct.

[00:21:59] Speaker 04:
Our fallback is if for some reason you disagree with that, then we would adhere more closely to the definitional level given in the specification.

[00:22:08] Speaker 01:
Okay.

[00:22:08] Speaker 01:
But you agree that the maximum of 40 would come from the figures, correct?

[00:22:14] Speaker 04:
Yes.

[00:22:16] Speaker 01:
Okay.

[00:22:16] Speaker 01:
And if we're looking at the figures, why shouldn't we be considering 80-40-80?

[00:22:22] Speaker 04:
I believe it was in response to Judge Taranto's question that we have the follow-on passages in column 16 that actually describe that anything over 30 is not low pressure.

[00:22:36] Speaker 04:
And so we can't simply say, well, as long as you're under 80 at any particular point, that that would suffice for, for example, a shoulder when we have the explicit disclosure at column 16.

[00:22:47] Speaker 04:
And my citations are all to the 172 patent, by the way.

[00:22:52] Speaker 04:
that tell us that in order to beat low pressure, you've got to be around 30 millimeters of mercury.

[00:22:58] Speaker 04:
So it really would not... There's just no support anywhere in this specification for us to set a variable pressure and call it low pressure.

[00:23:09] Speaker 04:
And, yeah, although extrinsic, the experts all agreed that what we're really talking about here is the ischemic capillary pressure in human skin.

[00:23:20] Speaker 04:
And that skin doesn't change, whether it's on your hip or shoulder or elbow.

[00:23:25] Speaker 01:
The reality is that... But I guess I'm still going back to you're agreeing to 40, but you agree that 40 comes from the figures in the patent itself, right?

[00:23:36] Speaker 04:
Well, yes, Your Honor.

[00:23:38] Speaker 01:
So to say that column 16, which talks about 30, supports the cap at 40 doesn't seem to make a lot of sense.

[00:23:49] Speaker 04:
Well, what we have is we take the specification and the conjunction of both figures 10 and 11 together.

[00:23:55] Speaker 04:
And we know that 40 is too high, that we are told that.

[00:24:00] Speaker 04:
And so really the construction at 40 is one of convenience.

[00:24:05] Speaker 04:
We pick that number because that is sort of the

[00:24:09] Speaker 04:
the best middle ground that the specification gives us.

[00:24:13] Speaker 04:
But the most pure application of the definitions given us by the patent would be 30.

[00:24:20] Speaker 04:
And that's why our fallback position is that if the court wants to be very strict in construing the claims according to the definitions given us in the specification, then we're down at 30.

[00:24:34] Speaker 04:
And it's not necessary for this appeal.

[00:24:37] Speaker 01:
What do we make of

[00:24:39] Speaker 01:
Mr. Torbert's testimony that said that mattresses could have that these pressure calculations are somewhat problematic because mattresses can show high pressure points when it's really some fluke or abnormality.

[00:25:01] Speaker 04:
That would be the button testimony.

[00:25:03] Speaker 04:
And that can happen, right?

[00:25:06] Speaker 04:
So clothing sometimes has

[00:25:07] Speaker 04:
have hard surfaces embedded in them, and that can create an ischemia at a point.

[00:25:14] Speaker 04:
But both sides essentially agree that those don't count.

[00:25:19] Speaker 04:
What we're talking about here are persistent kinds of pressures created by mattresses and human bodies, not anomalies that might... But how do we know from the record that's submitted that, I mean, as he testified, he said that the

[00:25:37] Speaker 01:
The mattresses can practice the patents in suit, even though a pressure map shows points of pressure above 40.

[00:25:43] Speaker 01:
And we have pressure maps that show some points above 40.

[00:25:48] Speaker 01:
Did anyone do any analysis of those specific pressure points to determine if they are anomalies?

[00:25:56] Speaker 04:
What we have, Your Honor, is that Dr. Freese, the plaintiff's expert, was allowed to position her subjects in any way and on any

[00:26:06] Speaker 04:
in any manner that she chose.

[00:26:08] Speaker 04:
She actually used her daughter as a subject, you know, a smaller person, and was free to position her in any way that she saw fit.

[00:26:17] Speaker 04:
And yet the pressure map the plaintiff's expert herself created showed these pressures well above that 40 millimeters of mercury level.

[00:26:27] Speaker 04:
So no one asked, you know, specifically, well, actually, we may have in her deposition gone into this, but the point is,

[00:26:36] Speaker 04:
She never attempted to explain those high-pressure zones as anomalies due to clothing.

[00:26:43] Speaker 04:
And frankly, given the number of them that she shows, it seems unlikely that that would be the case.

[00:26:50] Speaker 03:
Mr. Cordell, this is Judge Toronto.

[00:26:52] Speaker 03:
Can I ask you this question?

[00:26:53] Speaker 03:
Is there anything in the patent or the record that says whether 30 millimeters of mercury is the ischemic pressure

[00:27:04] Speaker 03:
for all human skin, no matter the person?

[00:27:13] Speaker 04:
The patent does have several citations equating the ischemic pressure with about 30 millimeters of mercury.

[00:27:20] Speaker 03:
About 30.

[00:27:23] Speaker 04:
About 30.

[00:27:23] Speaker 04:
And this is one point where the competing experts were in vile with agreement.

[00:27:28] Speaker 04:
We have citations from both sides.

[00:27:31] Speaker 03:
Did anybody put any kind of, I don't know, numerical wiggle room on that figure of approximately 30?

[00:27:43] Speaker 04:
You know, what comes to mind is each side had medical doctors that they offered.

[00:27:49] Speaker 04:
We had Dr. Krieger, they had Dr. Jacobson.

[00:27:52] Speaker 04:
And so, for example, round appendix 8000, supplemental appendix 8000.

[00:28:00] Speaker 04:
I know Dr. Krieger had an extensive discussion of the ischemic pressure.

[00:28:06] Speaker 04:
It's actually, it looks like 7997, paragraph 17.

[00:28:11] Speaker 04:
And he has 30 to 32.

[00:28:13] Speaker 04:
And I think what the testimony was is that as people get older, that ischemic pressure actually

[00:28:19] Speaker 04:
goes down as capillary age and you aren't as flexible.

[00:28:23] Speaker 04:
And so there are physiological problems that occur with people just as a result of the aging process.

[00:28:30] Speaker 04:
So for example, older people have trouble in different parts of their bodies than younger do.

[00:28:35] Speaker 03:
But the maximum... So I guess against that background, the 30 is not a terribly rigid number, I think even in the patent in column one when it says approximately 30.

[00:28:47] Speaker 03:
And if there's some room, then using 40 is just saying whatever that room is, 40 is above it.

[00:28:57] Speaker 04:
That's right.

[00:28:58] Speaker 04:
That's right.

[00:28:59] Speaker 04:
And I think that's what led the district court to resist a numeric limitation in the initial claim construction order.

[00:29:05] Speaker 04:
I do dispute that this was some kind of a surprise.

[00:29:10] Speaker 04:
I think in his initial order,

[00:29:12] Speaker 04:
the district court was quite clear that he was having trouble, you know, fixing that number given that there was this range between 30 and 32.

[00:29:20] Speaker 04:
And what he had was those statements and then the clear statement that 40 was too high.

[00:29:25] Speaker 04:
And so he thought that the experts would be able to then apply his reasoning and set forth an amortment order very clearly.

[00:29:33] Speaker 04:
But that's not what happened.

[00:29:35] Speaker 04:
What happened was instead the level sleep experts resorted back to their conventional mattress analysis

[00:29:41] Speaker 04:
And so in his summary judgment order at A23, he makes it clear that he expected the parties to be constrained by his too high a pressure reasoning of the claim construction order and said explicitly at A23 that the

[00:30:00] Speaker 04:
that the court's original claim construction order explained the pressures above 40 millimeters of mercury are too high to satisfy the claim.

[00:30:07] Speaker 03:
Mr. Cordell, can I just ask one final question for myself about this indefiniteness business?

[00:30:13] Speaker 03:
I know that in your claim construction brief, you kind of invert to indefiniteness, but what, if anything, does the record say about whether a relevant skilled artisan

[00:30:28] Speaker 03:
would have a sufficiently definite idea of a spring mattresses pressure profile for that to give the kind of reasonable notice that the definiteness requirement demands.

[00:30:48] Speaker 04:
So framed as the spring mattress issue, your honor, there is nothing in the record, really.

[00:30:53] Speaker 04:
The first question that everyone would have to confront is, what is a conventional spring mattress?

[00:31:00] Speaker 04:
There are thousands and thousands of choices.

[00:31:04] Speaker 04:
The level sleep expert chose one that I think was commercially available or perhaps fit for her testing profile, but really never explained why that one was chosen out of the thousands that could have been chosen.

[00:31:18] Speaker 04:
As we are all aware, that people choose mattresses sometimes because they like a firmer mattress, sometimes because they like a softer mattress.

[00:31:25] Speaker 04:
And that's why when you go into the store, there are dozens and dozens available.

[00:31:30] Speaker 04:
And there's really nothing in this record that would allow one of ordinary steel to know which of those to choose in the first instance.

[00:31:37] Speaker 03:
But is there something in the record that says among the many, many choices among spring mattresses,

[00:31:46] Speaker 03:
the pressure profiles would vary tremendously?

[00:31:52] Speaker 04:
I'm not aware of that, Your Honor, but I believe that's true.

[00:31:54] Speaker 04:
I think that the pressure profiles of conventional mattresses are specifically created, again, because people have different preferences.

[00:32:02] Speaker 04:
Sometimes they like it softer, sometimes they like it firmer.

[00:32:06] Speaker 04:
Okay.

[00:32:06] Speaker 04:
So that's the problem.

[00:32:08] Speaker 00:
Mr. Cordell, this is Judge Stoll.

[00:32:10] Speaker 00:
I have a question that's analogous to the first one that Judge Toronto asked you.

[00:32:15] Speaker 00:
about the ischemic pressure.

[00:32:16] Speaker 00:
I want to know if there's anything in the record that suggests, either in the patent specification or the record that suggests that the ischemic pressure would change based on where the body part.

[00:32:28] Speaker 00:
For example, is it different for the waist than it is for the shoulder and hips?

[00:32:33] Speaker 00:
Is there anything that suggests that?

[00:32:36] Speaker 04:
No, Your Honor.

[00:32:37] Speaker 04:
In fact, the contrary would be true.

[00:32:39] Speaker 04:
So one of the discussions that I believe the court had with my brother was regarding Column 30, where different body parts were highlighted.

[00:32:49] Speaker 04:
And in each case, for example, the citation at Column 30, this is Appendix 103,

[00:32:58] Speaker 04:
talk about the shoulder part of the side-lying male body, this is at line 25 to 27, being supported with, quote, low surface body pressure.

[00:33:10] Speaker 04:
Down below that, in column 30, there is a citation to the hip at about line 62.

[00:33:18] Speaker 04:
Displacement parameters accommodate the hip part of the side-lying male body, 35, again, with low surface body pressure.

[00:33:27] Speaker 04:
So there's no indication that this would be variable at all.

[00:33:32] Speaker 04:
And in fact, the opposite contention is set forth in the specs.

[00:33:37] Speaker 00:
Okay.

[00:33:37] Speaker 00:
Thank you.

[00:33:38] Speaker 00:
I just want to note something just for the record that it's been a while since I've seen appendix copies of patents that were so poorly, that are so hard to read and illegible.

[00:33:51] Speaker 00:
And I just want to bring it to

[00:33:53] Speaker 00:
everybody's attention that it's much more helpful when higher quality images are put in the appendix.

[00:34:00] Speaker 00:
That's all.

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

[00:34:02] Speaker 04:
Understood, Your Honor.

[00:34:02] Speaker 04:
I apologize.

[00:34:04] Speaker 04:
My eyes are... Used to be good, but no more.

[00:34:10] Speaker 04:
If I could make just one final point, I do want to address this notion that there was a

[00:34:17] Speaker 04:
Somehow the court's construction was a surprise.

[00:34:21] Speaker 04:
I don't believe it was.

[00:34:22] Speaker 04:
There was extensive discussion of this pressure limitation, indeed a numeric pressure limitation, at the Marpen hearing beginning of Appendix 1363.

[00:34:33] Speaker 04:
And I note that Level 3 did not ask the district court for leave to supplement anything or to reopen record at any point.

[00:34:43] Speaker 04:
So, you know, to the extent that that's an attractive argument, I think that it probably isn't maintained here.

[00:34:57] Speaker 04:
And with that, if there are no other questions, I'll cede my time.

[00:35:04] Speaker 01:
Okay, Mr. Day, three minutes.

[00:35:08] Speaker 02:
Thank you, Your Honor.

[00:35:08] Speaker 02:
Just a few things.

[00:35:10] Speaker 02:
One, Council says we're told that 40 is too high.

[00:35:15] Speaker 02:
Those words, too high, are not used in the patent.

[00:35:22] Speaker 02:
The patent does not say 40 is too high.

[00:35:26] Speaker 02:
And even the claim construction order did not say 40 is too high.

[00:35:31] Speaker 02:
So if it were, if you think about figure 10, it shows you that there's pressure of 80, 40, 80, and then 30 at the legs.

[00:35:40] Speaker 02:
If 40 was some sort of an upper limit or, you know, definitional of what's too high, there'd be no point in talking about pressure double that at the shoulders.

[00:35:50] Speaker 02:
It's not an upper limit.

[00:35:52] Speaker 02:
It's not, the patent never says it's an upper limit.

[00:35:56] Speaker 02:
It's just not there to support such a statement.

[00:36:01] Speaker 02:
Second, the council stated that anything over 30 is not low pressure.

[00:36:07] Speaker 02:
Again, the patent just does not say that.

[00:36:09] Speaker 02:
It says that in an ideal case, in a preferred embodiment, you would get to that level, but it never says low pressure means the ischemic pressure or low pressure means 30 pressure over 30 is too high.

[00:36:27] Speaker 02:
None of those kinds of statements are there.

[00:36:29] Speaker 02:
Instead, what we have

[00:36:31] Speaker 02:
is the objective baseline that it's pressure of a level which materially reduces bed-induced shifting.

[00:36:39] Speaker 02:
I do want to, on the indefiniteness question, there's no record here of, you know, thousands of conventional mattresses producing different results.

[00:36:50] Speaker 02:
I mean, that's something that clearly distinguishes this case from Sleep Numbers citations to the Liberty Ammunition

[00:36:57] Speaker 02:
case where there was a record showing that the baseline, the conventional product, actually had all sorts of different properties that would change the results.

[00:37:07] Speaker 02:
There's no record of anything like that here, Your Honor.

[00:37:13] Speaker 02:
On what counsel referred to as the button test, what's the deal with pressures over 40?

[00:37:24] Speaker 02:
Could it be an artifact?

[00:37:26] Speaker 02:
That was, in the summary judgment briefing, we pointed out that they never asked our expert that question.

[00:37:34] Speaker 02:
And frankly, our expert didn't address it in the report because that wasn't the construction we were dealing with.

[00:37:39] Speaker 02:
It's the 40 limit.

[00:37:41] Speaker 02:
But, you know, that just never came up because the construction was not before us.

[00:37:47] Speaker 02:
And finally, and this may turn to be a minor point, but counsel said that Dr. Freese chose a very small woman to do these tests, and that's not true.

[00:37:58] Speaker 02:
Her daughter's something like 5'10 and 180 pounds, certainly much bigger, and so the pressures are much higher than the person illustrated in Figure 10, who's a small woman of 2.5 percentile.

[00:38:13] Speaker 02:
And with that, I would like to thank the panel for your time today.

[00:38:18] Speaker 01:
Thank you.

[00:38:20] Speaker 01:
All right.

[00:38:20] Speaker 01:
The case will be submitted, and my promised counsel, we won't sleep on our decision.

[00:38:27] Speaker 01:
Sorry, I'm challenging Alan.

[00:38:28] Speaker 01:
All right.

[00:38:33] Speaker 01:
Thank you.

[00:38:34] Speaker 01:
The court is adjourned.

[00:38:36] Speaker 01:
Thank you, Your Honor.

[00:38:37] Speaker 03:
Thank you, Your Honors.