[00:00:43] Speaker 02:
наш последний caso для аргумента сегодня 21-1114 Louisville Ladder vs. Werner Company.

[00:00:52] Speaker 02:
Mr. Wright, por favor.

[00:01:07] Speaker 00:
Good morning.

[00:01:08] Speaker 00:
May it please the court.

[00:01:09] Speaker 00:
My name is Terry Wright and I'm here on behalf of the Appellant of the Ladder.

[00:01:12] Speaker 00:
The board erred in this case in their constructions of the terms entirely open face and extending upwardly.

[00:01:19] Speaker 00:
The very purpose of the in-rail covers described in the 731 patents that is at issue are to protect and reinforce the bottom ends of the ladder while still allowing for the lower most portion of the ladder on the interior to be easily viewed and inspected.

[00:01:31] Speaker 00:
But the board's construction of entirely open face and extending upwardly completely eviscerated those fundamental advantages of the 731 patent.

[00:01:39] Speaker 04:
It seems to me one of the problems you may have is that the language entirely open face is followed in the claim itself by saying set open face suitable for exposing a portion of the lateral.

[00:01:55] Speaker 04:
So you don't have to even look to the spec or the embodiments or whatever, but certainly in the claim language it seems to have modified arguably the word entirely open face, correct?

[00:02:06] Speaker 00:
That's correct.

[00:02:07] Speaker 00:
It's correct that the portion isn't specifically disclosed in that claim language, but our position is that you can't read the two of those in isolation.

[00:02:14] Speaker 00:
You necessarily have to look for the meaning of entirely open face, which we feel like is ambiguous at best.

[00:02:20] Speaker 00:
And so you wouldn't necessarily have to go back to the spec and to the prosecution history.

[00:02:25] Speaker 04:
But wait, I don't understand.

[00:02:26] Speaker 04:
I'm talking about reading the claim language that I've cited.

[00:02:29] Speaker 04:
As a whole.

[00:02:33] Speaker 04:
Yes.

[00:02:33] Speaker 04:
And not parsing entirely open face from the remainder of that sentence in the claim.

[00:02:38] Speaker 00:
That's correct.

[00:02:39] Speaker 00:
Right.

[00:02:39] Speaker 00:
Writing to do right.

[00:02:40] Speaker 00:
Well, our position is that entirely open face is ambiguous here.

[00:02:44] Speaker 00:
Reading that claim language as a whole.

[00:02:47] Speaker 02:
Well, it's not ambiguous when you read it in light of the rest of the claim language.

[00:02:51] Speaker 02:
That's the question.

[00:02:54] Speaker 00:
Right.

[00:02:54] Speaker 00:
Right.

[00:02:54] Speaker 00:
And I guess, again, our position, though, is that entirely open face

[00:02:58] Speaker 00:
даже si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si si

[00:03:24] Speaker 00:
Well, there's figures three and nine.

[00:03:27] Speaker 00:
Figure three has a small web engagement member within it.

[00:03:30] Speaker 00:
We would argue that is an entirely open face that allows for sufficient inspection, but to the extent that's not an entirely open face, then figure nine certainly shows that.

[00:03:42] Speaker 00:
The specification includes a passage that makes readily apparent what a substantially open face is.

[00:03:50] Speaker 00:
The specification makes clear that in this substantially open base, that shell doesn't extend upwardly beyond the upper surface of the base.

[00:03:56] Speaker 00:
The rail flange retainers don't extend entirely along the respective sidewalls and thus expose portions of those flanges of the ladder rail when they're engaged with the rail flange retainers.

[00:04:08] Speaker 00:
And third part, the web engagement member does not extend entirely along the exterior wall.

[00:04:13] Speaker 00:
So it exposes a portion of the web and that web is engaged with the slot.

[00:04:17] Speaker 00:
But more significantly we think that portion of the specification then concludes by indicating that the substantially open interior base of the shell allows a ladder user to inspect adequately.

[00:04:31] Speaker 00:
It's the columns, column 6, line 66 and it continues on to column 7, line 14.

[00:04:40] Speaker 00:
But that portion of the spec concludes by indicating that what's important here is that open face allows for adequate inspection of the ladder rail.

[00:04:50] Speaker 04:
Is there any definition of adequate inspection?

[00:04:56] Speaker 00:
There's not.

[00:04:56] Speaker 00:
It's discussed in the background in terms of inspecting it for cracks and damage at the bottom of the ladder rail.

[00:05:06] Speaker 00:
undergone kind of a transition from aluminum to fiberglass.

[00:05:10] Speaker 00:
Fiberglass is a more resilient material, but it still has significant damage at the bottom of the ladder rails from impacts or flexing of the particular rail walls.

[00:05:20] Speaker 00:
So the solution to that was to reinforce the bottom end of the ladder rail.

[00:05:24] Speaker 00:
And the 731 patent is directed towards such an embodiment, and it improves over existing ladder boots because it allows for this inspection.

[00:05:33] Speaker 00:
в том числе и в том числе в том числе

[00:05:40] Speaker 00:
The board also further errs in failing to recognize that the prosecution history also makes clear what portion is being exposed.

[00:05:49] Speaker 00:
We felt like that the portion being exposed necessarily includes the lower most interior services and the corners based on that prosecution history.

[00:05:58] Speaker 00:
The prosecution, the claims were amended during prosecution to recite an entirely open face.

[00:06:04] Speaker 00:
Entirely open face, those three words are not found within the patent itself.

[00:06:08] Speaker 00:
But during prosecution the claims were amended to overcome a reference that's referred to in the briefing as herd.

[00:06:14] Speaker 00:
Herd was directed towards a foot for a ladder rail that covered the lower most interior portions and it has two oppositely disposed side walls and two end walls that basically is applied by pushing it over the end.

[00:06:26] Speaker 00:
The archaic sides in herd were configured to extend on opposite sides of the ladder and they turn inward at one point to basically pinch

[00:06:33] Speaker 00:
their foot onto the end of the ladder rail and secure that foot.

[00:06:38] Speaker 00:
In Heard though, its construction allows the corners to be exposed.

[00:06:41] Speaker 04:
But isn't Heard about the number of walls and not what specific portion of the ladder rail must be exposed?

[00:06:52] Speaker 00:
The walls were part of it, but I believe the portions being exposed was a large part of it as well.

[00:06:57] Speaker 00:
Heard allows for the corners of the ladder rail to be exposed.

[00:07:01] Speaker 00:
but that face of the lower most portion was still entirely covered and heard.

[00:07:05] Speaker 00:
So what the applicant did in this instance was to amend the claims from a substantially open face to an entirely open face, and then the patent was allowed.

[00:07:15] Speaker 00:
In its response when they submitted that amendment, they indicated that the entirely open face was meant to describe the face of the shell by which the bottom surface of the ladder rail can be exposed for inspection and proper fitting.

[00:07:27] Speaker 00:
They also noted that although Hurd showed so sides, which does expose a small portion, the applicant contended that none of those sides would clearly show up at the bottom edge of the ladder rail were improperly displaced from the bottom surface.

[00:07:40] Speaker 00:
So what we're really looking at there, I think, is that the prosecution history of the 731 patent clearly distinguished from a foot such as that found in Hurd, which exposed a small portion of the ladder rail,

[00:07:52] Speaker 00:
от того, что находится в патенте 731, который позволяет этой нижней интерьерной службе в коронаре в Лаврилу, чтобы было достаточно распространено для инспекции и оборудования.

[00:08:03] Speaker 02:
Когда I'm looking at the actual prosecution history and I'm on page 803 and looking at your actual response to the office action, applicant respectfully contends that with this definition, there is also no portion of the tread which is disposed within said embossed and said hold.

[00:08:21] Speaker 02:
где, где, где, где, где, где, где, где, где, где, где, где, где, где, где, где, где,

[00:08:49] Speaker 00:
Under the quoted passage right there, it says, although the herd pattern does show sides which expose a small portion of the ladder rail, applicant respectfully contends that none of those sides would clearly show if the bottom edge were improperly displaced.

[00:09:04] Speaker 00:
And then, you know, the paragraph above that, too, it talks about the term entirely open face has been used so as to describe the face of the shell by which the bottom surface of the rail can be exposed for proper inspection and fitting.

[00:09:17] Speaker 02:
просто para ser claro que no crees que la construcción del borde no crees que la construcción del borde no crees que la construcción del borde no crees que la construcción del borde no crees que la construcción del borde no crees que la construcción del borde no crees que la construcción del borde no crees que la construcción del borde

[00:09:42] Speaker 02:
these purposes that are articulated on 804 and also mentioned in the patent, namely exposed for infection and proper fitting would be met also, is that right?

[00:09:55] Speaker 00:
I think the issue with the board's construction here is that as long as, and the board is somewhat ambiguous in adopting this, but as long as the

[00:10:03] Speaker 00:
face on the far side of the interior of the cover is open, that's sufficient.

[00:10:09] Speaker 00:
But that ignores the fact that under the board's definition, anything could be in between that face of the cover and completely block the view of the ladder rail.

[00:10:19] Speaker 00:
But if you could see some small portion of it, then that's sufficient under the board's view.

[00:10:23] Speaker 00:
And we think that's incorrect because of these passages at least in the prosecution.

[00:10:28] Speaker 02:
Because if you could only see some small portion of it, it wouldn't be available for inspection in proper fit.

[00:10:33] Speaker 00:
Right.

[00:10:34] Speaker 00:
I mean the damage to a ladder rail occurs at the bottom ends of the ladder rail and in those corners.

[00:10:39] Speaker 00:
You don't want to be inspecting something when it propagates multiple inches up from the bottom.

[00:10:44] Speaker 00:
And that was our issue primarily with, you know, the board's reasoning when it talked about the Plotner patent.

[00:10:48] Speaker 00:
The Plotner patent that was at issue was cited by the board for invalidating the Entirely Open Face limitation.

[00:10:55] Speaker 00:
It has cutouts or windows, but they're multiple inches up from the base of the shell.

[00:10:59] Speaker 00:
So because of that, we don't feel like that can meet the Entirely Open Face limitation, because it's not where the boot is located, and it completely obstructs that interior face.

[00:11:08] Speaker 00:
к к к к к к

[00:11:37] Speaker 03:
What do you mean by integral or integral?

[00:11:41] Speaker 00:
A unitary construction, a one-piece construction.

[00:11:44] Speaker 03:
So the rail plants retain... So two pieces that are folded together would not qualify?

[00:11:52] Speaker 00:
Correct.

[00:11:52] Speaker 00:
Correct.

[00:11:52] Speaker 00:
Under our interpretation.

[00:11:54] Speaker 00:
The claim language we feel like in TIN requires an integral construction.

[00:11:59] Speaker 00:
It recites a cover for an end of a ladder rail that comprises a shell, and in accordance with standard patent claim structure, it indents and then further recites that that shell comprises a rail flange retainer.

[00:12:09] Speaker 00:
So in other words, claim TIN specifically recited that the rail flange retainer is a part of the shell, and then it goes on to further recite that the rail flange retainer extends upwardly from the bottom of that very same shell.

[00:12:20] Speaker 00:
To the extent there is some ambiguity in the language of claim 10, we also felt like one skilled in the art reading specification would necessarily understand the shell and its associated rail flange retainers are a one-piece integral construction.

[00:12:34] Speaker 00:
The 731 patent describes the shell as including an exterior wall, an interior wall, two side walls, and a lower wall or base, but the rail flange retainers are described as being part of that side wall and as assisting with the alignment of the ladder rail once it's in there.

[00:12:48] Speaker 00:
Secondly, we also feel like it would be clear to one ordinary school in the art that the shell is a unitary construction.

[00:12:54] Speaker 00:
Not only is that all that's described in the specification, but the specification only describes manufacturing methods that produce that unitary construction.

[00:13:02] Speaker 00:
There's no disclosure whatsoever in the 731 patent of anything less than a unitary construction.

[00:13:07] Speaker 00:
The figures in the 731 patent only depict a one-piece shell, and then describing again how that shell is manufactured, the specification only references techniques that are capable of producing that material.

[00:13:18] Speaker 02:
Except that your specification in that same section goes on to say that the shell can be made by any manufacturing process and that you're not limited to the ones disclosed herein.

[00:13:27] Speaker 02:
So the fact that you only disclose processes that produce an integral single-piece shell, but then you go on to say, let me be really clear, this shouldn't be read as a limitation.

[00:13:36] Speaker 00:
Well, I think, you know, we get to that point when, if we're looking at what Claim 10 references, Claim 10 we feel like is very straightforward and includes that the rail flange retainers are part of that shell.

[00:13:48] Speaker 00:
But then, you know, if we go back and look at the spec, almost the entirety of the spec here is directed to such one-piece unitary constructions.

[00:13:56] Speaker 02:
You say directed to.

[00:13:57] Speaker 02:
There's nothing in the spec that suggests that there's sort of an advantage or a benefit to a single unitary construction as opposed to two pieces.

[00:14:04] Speaker 02:
I mean, that's, I feel like you're just trying to read

[00:14:06] Speaker 00:
بسرطان بسرطان بسرطان بسرطان

[00:14:56] Speaker 01:
Good morning, Your Honors.

[00:14:56] Speaker 01:
May it please the Court.

[00:14:58] Speaker 01:
The Board found, based on substantial evidence, that claims 8-16 and 19-20 are obvious, were obvious, in view of four prior art references, beginning with Louisville's own prior art catalog, which was not disclosed with the Patent Office during the original prosecution.

[00:15:14] Speaker 01:
The Board correctly construed the claims based on the plain language of the claims, the specification, and the file history.

[00:15:20] Speaker 01:
and rejected Louisville's efforts to read in limitations going to some of the questions that Judge Moore and Judge Prost asked this morning about reading in limitations that are inconsistent with the plain language of the claim.

[00:15:33] Speaker 01:
The board rejected those arguments.

[00:15:34] Speaker 01:
Louisville had the opportunity during original prosecution or during the proceedings below to propose amendments to the claims to add these limitations

[00:15:43] Speaker 01:
что они требуют теперь добавить неправедельно в строительности.

[00:15:48] Speaker 02:
Ну, они сделали это в Багдаде.

[00:15:50] Speaker 02:
Лимитация открытой линии была добавлена во время прокуратуры.

[00:15:53] Speaker 02:
И их аргумент на паузе 804, они выяснили в Багдаде, когда разговаривают об открытой линии, это должен быть так, что нижняя поверхность линии может быть выкручена для инспекции и правильного снятия.

[00:16:05] Speaker 02:
И их аргумент, что Багдаде очень широкая строительность, скрывает много оборудований, которые не позволяют для этого.

[00:16:11] Speaker 01:
But the board's construction follows exactly the language that was in the claim, which was that the entirely open face exposed a portion of the ladder rail.

[00:16:22] Speaker 01:
in the file history in the response to the examiner's rejection, they did refer to exposing a bottom edge of the ladder rail, and we addressed, you know, that's really the surface that points down on the ladder rail.

[00:16:35] Speaker 01:
Now they're really pointing to a different surface, which is using the words.

[00:16:40] Speaker 01:
What Louisville asked the board to include by its interpretation was that it exposed the lowermost portion and corners of the ladder rail.

[00:16:47] Speaker 01:
Those words appear nowhere in the claims, nowhere in the specification,

[00:16:51] Speaker 01:
and nowhere in the file history that Louisville cites.

[00:16:54] Speaker 01:
But in any event, given what they did say in that response to the Patent Office, they simply, it is not a clear and disavowal disclaimer of scope, particularly when read in light of the plain language that they did add by amendment, which simply says, expose a portion of the ladder rail.

[00:17:12] Speaker 02:
And so do you think that a portion of the ladder rail is exposed in every

[00:17:19] Speaker 01:
yes, because that was the board's construction that there must be a portion of the ladder rail exposed

[00:17:31] Speaker 01:
And really, I should clarify, there were really two disputes, two sub-disputes when it came to the Entirely Open Face limitation.

[00:17:39] Speaker 01:
There is the structural limitation, Entirely Open Face.

[00:17:41] Speaker 01:
What does that mean?

[00:17:42] Speaker 01:
What is the face?

[00:17:43] Speaker 01:
And then there is the function recited by that structural limitation, which is to expose a portion of the lateral rail.

[00:17:50] Speaker 01:
And the board addressed both.

[00:17:52] Speaker 01:
On the functional piece, the board said the claim simply requires exposing a portion of the ladder rail, not any particular portion, and Louisville's argument that it must expose a lowermost portion in the corners of the ladder rail is simply not supported by the claim language or the specification or this portion of the file history.

[00:18:10] Speaker 01:
On the structural piece, the entirely open face, the board addressed the question of what is the face and

[00:18:19] Speaker 01:
Red Warner's interpretation is what the board called the more natural interpretation of the word face, which is that face takes on its geometric meaning that it's the side of the cover and that that side must be entirely open and

[00:18:34] Speaker 01:
looked, I think, to Louisville's proposal that that face could be anywhere throughout the volume of the cover and said, well, that's even broader.

[00:18:44] Speaker 01:
And so we see no problem with adopting Werner's view because Louisville's interpretation would be even broader and even more detrimental to the obviousness arguments if we went that direction.

[00:18:56] Speaker 03:
What force do you give to the prosecution history page 804 of the appendix?

[00:19:02] Speaker 01:
это комментарий, но, опять же, закон требует, если вы отклинаете что-то, которое не специфично написано в заявлении, через преседование, историческое отклинивание, это должно быть очевидно и непринято.

[00:19:14] Speaker 01:
Это должно быть абсолютно очевидно для публики, чтобы служить функцией обучения публики.

[00:19:18] Speaker 03:
Какова ваша интерпретация того письма, которая дает ей никакое значение?

[00:19:23] Speaker 01:
Well, I read it as an example that it must expose a portion, the entirely open face in the claim must expose a portion of the ladder rail.

[00:19:32] Speaker 01:
And there's an example here provided that a portion that could be exposed is a bottom edge of the ladder rail.

[00:19:40] Speaker 01:
And I'd also note that the purpose that is recited here in the

[00:19:46] Speaker 01:
is not exactly the same purpose that Louisville has urged throughout these proceedings.

[00:19:54] Speaker 01:
They are emphasizing that you need to expose the lower and more proportionate corners because that's where the cracks will begin in, for example, a fiberglass ladder rail.

[00:20:02] Speaker 01:
Which is true.

[00:20:03] Speaker 01:
That's undisputed.

[00:20:03] Speaker 01:
That is where the cracks will begin.

[00:20:05] Speaker 01:
There's also evidence that the cracks must propagate up several inches before they become a problem.

[00:20:10] Speaker 03:
It would be nice to catch them sooner rather than later.

[00:20:13] Speaker 01:
Certainly.

[00:20:13] Speaker 01:
But the purpose that's recited in the response of the Patent Office has nothing to do with cracks or wear and tear.

[00:20:19] Speaker 01:
It has to do with whether the rail is seated fully down into the

[00:20:25] Speaker 01:
cover whether, in other words, has the cover been properly installed?

[00:20:28] Speaker 01:
I'm looking here again at page 804, where it says if a bottom edge of the ladder rail were improperly displaced from the bottom surface of the shell.

[00:20:37] Speaker 01:
And skipping ahead to the invalidity argument, there's no dispute that in, for example, the Louisville catalogs,

[00:20:43] Speaker 01:
You see the bottom corners of the rail inside that cover.

[00:20:48] Speaker 04:
Well, this whole prosecution history was that the effort of Pat Nohner to differentiate between herd.

[00:20:53] Speaker 04:
Correct.

[00:20:55] Speaker 04:
So what relationship is there between the herd reference and what we're talking about now on page 804?

[00:21:03] Speaker 01:
You're right, Judge Grossman.

[00:21:04] Speaker 01:
I think you alluded to this before, that

[00:21:06] Speaker 01:
Heard showed four walls.

[00:21:08] Speaker 01:
It showed a cover with four walls that wrapped all the way around the ladder rail.

[00:21:12] Speaker 01:
And so it didn't expose much of anything in terms of the seeing the ladder exposing a portion.

[00:21:20] Speaker 01:
And that's why I think that the claim language that Louisville added at that point by amendment, that there be an entirely open face.

[00:21:28] Speaker 01:
didn't have anything remotely close to an entirely open face.

[00:21:32] Speaker 01:
All four faces were occluded substantially.

[00:21:35] Speaker 01:
But it also exposed a portion of the ladder rail.

[00:21:39] Speaker 01:
And that was something Herd did not do.

[00:21:42] Speaker 01:
And by reciting that, applicant overcame the Herd reference.

[00:21:51] Speaker 01:
Если usted permite, voy a seguir al segundo argument de la construcción de la clave, que fue la extensión subvertera.

[00:21:57] Speaker 01:
Y aquí, una vez más, Louisville está intentando importar, a través de la construcción de la clave, limitaciones que podría tener, pero que no decidieron proponer por el artículo debajo.

[00:22:07] Speaker 01:
Y lo que quieren importar es la palabra íntegro, o construcción de una pieza, como habéis hablado, soy el juez Trump.

[00:22:14] Speaker 03:
Just to clarify something, and I'm not sure whether this matters.

[00:22:18] Speaker 03:
The full metal boot in the Louisville catalog is actually two separate pieces.

[00:22:24] Speaker 03:
It is.

[00:22:24] Speaker 03:
Correct.

[00:22:24] Speaker 03:
Like a shoe and a shin guard.

[00:22:28] Speaker 03:
Yes.

[00:22:28] Speaker 03:
The shin guard maybe extends upwardly from the shoe, but it doesn't even touch it.

[00:22:34] Speaker 01:
I'm not sure whether they touch, Your Honor, but they're certainly two different pieces.

[00:22:38] Speaker 01:
There's no dispute about that.

[00:22:40] Speaker 03:
And Mr. Schmidt, one of... Isn't there some distance between a single piece and integral?

[00:22:50] Speaker 03:
This may be unimportant because, I think, as Mr. Wright indicated,

[00:22:57] Speaker 03:
his client's position was integral means formed in a single unitary process not two things bolted together so I don't think that his client presented to the board a position that at a minimum the vertical piece needs to be connected to the shoe piece but

[00:23:22] Speaker 03:
That would exclude the full metal boot, right?

[00:23:28] Speaker 01:
Yes, my understanding of Louisville's argument all along has been to use integral and one piece interchangeably, they mean the same thing, and both of them exclude the full metal boot, as contrary to the evidence of record, the substantial evidence that Ford relied on, including the fact that Mr. Schmidt acknowledged that one of ordinary skill in the art knew, and again, I'm sorry, Mr. Schmidt was one of Louisville's long-time employees and an expert they presented,

[00:23:53] Speaker 01:
Those of ordinary skill in the art would have understood that you could use plastic for this booth or you could use metal and depending on the material you chose and the strength and the volume of the material you use, you might want a one piece construction for extra strength or you might not need it in the case of metal.

[00:24:10] Speaker 03:
Is your position that upwardly extend, the thing that must upwardly extend

[00:24:16] Speaker 03:
to the thing from which it upwardly extends?

[00:24:18] Speaker 01:
Our position is the opposite of that, Your Honor.

[00:24:21] Speaker 01:
No.

[00:24:21] Speaker 01:
Our position is that there is no requirement that it be integral or one piece.

[00:24:25] Speaker 01:
It simply must extend upwardly from, and in, for example, the case of the Full Metal Booty.

[00:24:34] Speaker 03:
It must just be perpendicular to, even if you could drive a truck through the two, through the gap?

[00:24:40] Speaker 01:
So perhaps, I mean, if it were connected to another ladder, of course, it would not extend upwardly from, but within the relative distance that is shown in the full metal boot, that those rail lines retainers do extend upwardly from.

[00:24:55] Speaker 01:
For the convenience of assembly, and because metal is strong, the full metal boot discloses a two-piece construction.

[00:25:02] Speaker 02:
I'm a bit concerned with what you're saying in response to Judge Toronto.

[00:25:07] Speaker 02:
There's a difference between two piece construction and two separate pieces that aren't part of the same construction.

[00:25:16] Speaker 02:
You're saying that the pieces that extend upwardly, like I'll refer to them as the shin guards, because it seems like a good way to do so, don't have to be connected as part of the bottom, which is part of the shell.

[00:25:30] Speaker 02:
I mean, these are all, the claim defines a shell and includes all of these components as part of the shell.

[00:25:36] Speaker 01:
I don't think the court needs to reach that question because in the prior art, they are connected.

[00:25:41] Speaker 01:
So in the full metal boot, they are connected with bolts through the ladder rail.

[00:25:49] Speaker 01:
So the inside piece, that trap as a little piece that you can see on the inside of the ladder rail, connects through to the shell on the outside.

[00:25:57] Speaker 01:
So in the case of the full metal boot, they are connected.

[00:26:01] Speaker 01:
It is a two-piece construction.

[00:26:02] Speaker 01:
Where the two pieces are connected to one another.

[00:26:05] Speaker 03:
I'm sorry, what's the bottom piece in the full metal boot?

[00:26:09] Speaker 03:
I thought, is that the sole?

[00:26:11] Speaker 01:
The base, well, so there is the base of the shell to which the tread is connected.

[00:26:18] Speaker 01:
And then the base of the shell has the trapezoidal member that extends up.

[00:26:22] Speaker 03:
And in the full metal boot there's a little angle piece, an L-shaped piece that goes from the base to the

[00:26:31] Speaker 03:
To the web, as you call it.

[00:26:35] Speaker 03:
Somebody really should have explained what web is.

[00:26:37] Speaker 03:
It took literally, it took me an hour to figure out what that meant.

[00:26:42] Speaker 03:
And it's that little L bracket that is connected to the base and connected through the web to the shin guard.

[00:26:51] Speaker 01:
Correct.

[00:26:53] Speaker 03:
And collectively they provide... So it doesn't matter that there's actually a little gap between the shin guard and the base.

[00:27:00] Speaker 01:
No, because it is still, that is the cover.

[00:27:04] Speaker 01:
That is the cover that is providing all of the functions required by the claims.

[00:27:09] Speaker 01:
And because it's metal and it's strong and it's easier to assemble, that way it is presented in two pieces that are bolted together.

[00:27:16] Speaker 01:
But one of ordinary skill in the art would have known, as the evidence shows,

[00:27:19] Speaker 01:
that you can use, you can build a cover out of metal, you can build it out of plastic, you can use one piece construction, you can use two piece construction, and you would make those decisions well within the knowledge and skill of one ordinary skill in the art based on the parameters of a particular design and the strength of the material and the amount of the materials that you choose.

[00:27:42] Speaker 01:
There is one other issue with respect to the rail point retainers and the disclosure in the full metal boot.

[00:27:49] Speaker 01:
art reference, the Louisville catalog, that Louisville waved below.

[00:27:54] Speaker 01:
They didn't present it until their sure reply.

[00:27:57] Speaker 01:
It was addressed during the oral argument, but the board found that it had been waved, and that is the setback between the edge of the base and the rail plant retainers.

[00:28:08] Speaker 01:
And the board found that substantial evidence supports that that was disclosed, even though Louisville had waved the argument and presented it too late.

[00:28:15] Speaker 01:
The last two issues that the board, that Louisville challenges with respect to the obviousness findings are both also supported by substantial evidence.

[00:28:23] Speaker 01:
First one is the bond.

[00:28:25] Speaker 01:
The board construed bond to require a chemical or physical engagement that includes a portion of the shell and a portion of the trail and excludes mechanical fasteners.

[00:28:37] Speaker 01:
Mr. Verhalen, the expert that Werner presented, provided extensive testimony interpreting the photo shown in the Werner brochure and explaining for three reasons why the photo shows an attachment that is not with mechanical fasteners.

[00:28:53] Speaker 01:
That photo shows a black tread under a ladder rail cover and it shows six pieces extending up through the top of that shell.

[00:29:04] Speaker 01:
And Mr. Graham explains that they stick up too far.

[00:29:07] Speaker 03:
There are too many of them that are spread out in the way that would indicate... These are little rubbery plugs that hold by friction on the disk through which they poke.

[00:29:21] Speaker 01:
That's exactly right, Your Honor.

[00:29:23] Speaker 01:
так как itu adalah so that was the question of the bond on the board credited Mr. Verhanen testimony of that neither Louisville nor its expert Dr. Kwan challenge the details of that they Dr. Kwan just looked at the photos that I can't tell and the board credited Mr. Verhanen testimony which provides substantial evidence to support that conclusion

[00:29:42] Speaker 01:
к к к

[00:30:07] Speaker 01:
спасибо за свое время, и мы предпочитаем, что решение Бориса должно быть подтверждено в зависимости от предпочтений.

[00:30:14] Speaker 02:
Окей, мистер Райт, у вас есть немного времени.

[00:30:27] Speaker 00:
Пожалуйста, перейдите.

[00:30:28] Speaker 00:
Спасибо, гражданин.

[00:30:28] Speaker 00:
У меня есть несколько быстрых clarifications здесь.

[00:30:31] Speaker 00:
Когда we continue to talk about FACE, I think it's important to recognize that the board in deciding FACE

[00:30:36] Speaker 00:
We prioritize extrinsic evidence in the form of a dictionary definition of face in that plane instead of choosing to look at the specification and the prosecution history.

[00:30:47] Speaker 00:
Warner is fond of indicating that the claim construction we proposed is not supported by the specification, but as we indicated, that column 6 to column 7 paragraph bridges those two columns clearly indicates what a substantially open face is, and then the prosecution history is what gets us to entirely open face.

[00:31:06] Speaker 00:
The other point we would make here too, extending upwardly shouldn't be regarded as just positioned in relation to something.

[00:31:12] Speaker 00:
The claim language doesn't indicate that.

[00:31:15] Speaker 00:
If the rail plant retainer were a separate part and were just positioned in relation to the rest of the shell, it would be recited separately, but it's not.

[00:31:22] Speaker 00:
It's recited as part of that very same shell.

[00:31:25] Speaker 00:
The last point we would make, once you reach those initial conclusions about what entirely open face should mean and what extending upwardly means, it becomes very clear that the global catalogs in that full metal boot as well as the Plotner reference don't show an entirely open face.

[00:31:41] Speaker 00:
and they don't show the rail plant retainers extending upwardly or a one-piece unitary construction there.

[00:31:47] Speaker 00:
The full metal boot, as you just discussed, is a two-piece construction.

[00:31:50] Speaker 00:
It's an L-shaped bracket that fits on the interior of a rail, and there's also a sleeve that goes on the back that's then bolted together so there's a large gap between those two pieces.

[00:31:59] Speaker 02:
Well, one thing that no one has mentioned, but it kind of bothered me about your integral one-piece construction concept is the claim itself expressly says

[00:32:10] Speaker 02:
A shell formed of at least one material.

[00:32:14] Speaker 02:
Your integral unitary construction makes it seem like you want the whole thing to be molded and created of a single material.

[00:32:22] Speaker 02:
But the claim itself contemplates expressly the possibility that the shell could be formed of multiple different materials.

[00:32:29] Speaker 02:
That would necessarily require those different materials to be affixed together somehow.

[00:32:34] Speaker 00:
Yes, and I think over time So I think you know one explanation for that is that we do indicate some molding processes and some extrusion Processes that you could have blends of different materials that produce that one-piece unitary construction So I presume that that's what it's getting at, but I don't have a better answer I think both counsel this case is taken under submission

[00:33:03] Speaker 00:
Court is adjourned until tomorrow morning at 10 a.m.