[00:00:00] Speaker 00:
Good morning, Your Honor.

[00:00:02] Speaker 00:
I'm here this morning to address issues of claim construction and inventorship standards.

[00:00:07] Speaker 00:
Mr. Schiller, my colleague, will address the remaining issues of the case, as well as the rebuttal.

[00:00:15] Speaker 00:
Your Honor, this case comes to the Court as a result of motion for summary judgment, and it presents issues and clear errors of claim construction and the inventorship standards.

[00:00:29] Speaker 00:
Claim construction is the most important error here.

[00:00:33] Speaker 00:
In this particular case, the judge in construing shoulder portions used the term shoulder portions as the case was filed, not as the case issued.

[00:00:43] Speaker 00:
If you look at the judge's opinion on, I believe it's appendix 29.

[00:00:48] Speaker 08:
What's your point about claim construction?

[00:00:50] Speaker 08:
How does this help you?

[00:00:52] Speaker 00:
The claim construction here is, the resulting claim construction from the courts is one that's overly broad and excludes the contribution made by the plaintiff Wagner.

[00:01:04] Speaker 08:
What's overly broad about it?

[00:01:07] Speaker 00:
It encompasses the surrendered embodiments that were given up in order to get the patent.

[00:01:14] Speaker 00:
Adams, you mean?

[00:01:15] Speaker 00:
I'm sorry.

[00:01:15] Speaker 08:
It encompasses Adams?

[00:01:17] Speaker 00:
It encompasses Adams explicitly.

[00:01:21] Speaker 00:
Yes, because some of the embodiments that were set forward that were reclaimed extend out over where Adam's portion is, over the lateral portion of the shoulder.

[00:01:32] Speaker 00:
And the claim that came that resulted as the prosecution is one where it's only on the top of the shoulder.

[00:01:42] Speaker 08:
How does this help you?

[00:01:44] Speaker 00:
This helps us because the remaining embodiment that is on the top of the shoulder is what was attributed by

[00:01:51] Speaker 04:
Did the district court judge hold that the claims don't cover an embodiment in which it's on the top of the shoulder?

[00:02:00] Speaker 00:
It didn't say it didn't cover it.

[00:02:02] Speaker 00:
It said it covered more than that.

[00:02:05] Speaker 04:
So if it does cover the top of the shoulder and then some, then it would follow that it's broad enough to cover a lot of different things, including what I think you contend your client contributed.

[00:02:21] Speaker 00:
right well that's but the problem is why does the claim construction matters because if you cover all the other embodiments redefine the term shoulder portions and the shoulder portions then it could be anywhere and that's not what the examiner

[00:02:40] Speaker 00:
determined to be patentable.

[00:02:42] Speaker 00:
That's not with the patentee.

[00:02:43] Speaker 00:
The patentee gave up those.

[00:02:44] Speaker 08:
So what?

[00:02:46] Speaker 08:
I just don't understand how under one construction your client's an inventor but under the other construction isn't?

[00:02:52] Speaker 00:
It's not an inventor because she did not invent portions that go over the back of it or the sides of the shoulder.

[00:02:58] Speaker 04:
But all she has to do is contribute one thing in order to be an inventor.

[00:03:02] Speaker 04:
So it doesn't matter how broad the claim is if it covers things that go on the top of the shoulder, the side of the shoulder, or the back of the shoulder.

[00:03:09] Speaker 04:
If it covers what's on top, then if she contributed that and her testimony is corroborated.

[00:03:15] Speaker 00:
Yes, that's correct.

[00:03:17] Speaker 04:
So maybe the claim construction isn't as important as you think.

[00:03:21] Speaker 00:
Well, we would assume that the court would not

[00:03:25] Speaker 00:
construe the shoulder portions to be so broad as to basically write her out of the panel for that contribution.

[00:03:32] Speaker 04:
Do you want to talk about corroboration?

[00:03:35] Speaker 00:
Your Honor, one of the other important errors that was made here is that in looking at the standard for corroboration, the court decided that it recited the proper standard that the court should use to establish what evidence would be

[00:03:52] Speaker 00:
properly prove inventorship.

[00:03:54] Speaker 00:
But what it did instead was adopt a higher standard.

[00:03:56] Speaker 00:
And if you look at Appendix 29.

[00:03:58] Speaker 08:
What's the corroboration?

[00:04:00] Speaker 00:
The corroboration in what the court was looking for was evidence that Wagner assisted Mr. Ashmore.

[00:04:09] Speaker 00:
What's your theory as to what the corroboration is?

[00:04:11] Speaker 00:
The corroboration through what's proper, which is that the evidence that a person that received an inventor received a suggestion at a meeting

[00:04:22] Speaker 00:
and from a report is sufficient to corroborate.

[00:04:25] Speaker 00:
There is circumstantial evidence here.

[00:04:27] Speaker 04:
Is your view that testimony that they met several times, that she left her vest invention at his house, that that is enough to corroborate that she in fact

[00:04:40] Speaker 04:
told him that he should use shoulder portions for his impression?

[00:04:45] Speaker 00:
Well, first of all, that's partially true.

[00:04:48] Speaker 00:
Yes, it is true, but there's more.

[00:04:51] Speaker 00:
But the problem with the judge's opinion is that he simply ignored the circumstantial evidence because he didn't need to get there.

[00:04:57] Speaker 00:
If she was looking for evidence, she assisted him.

[00:04:59] Speaker 00:
How would she assist him?

[00:05:00] Speaker 00:
She would assist him by working in the lab, helping test prototypes.

[00:05:04] Speaker 04:
I think what he said was that her testimony that she contributed to Mr. Aschlein's invention was not corroborated.

[00:05:18] Speaker 00:
Because I believe he was looking for the higher standard.

[00:05:22] Speaker 00:
He didn't comment at all on the circumstantial evidence.

[00:05:26] Speaker 00:
What do you think is the best evidence that you have for corruption?

[00:05:43] Speaker 00:
this technical discussion between Ashland and Wagner, in which she described the need to have the shoulder belt located on top of the shoulder.

[00:05:53] Speaker 08:
Remember, these two individuals were working in different... I don't understand how the existence of the meetings helps you, because there's no question but that Ashland was helping Wagner with her invention.

[00:06:06] Speaker 08:
And there wasn't any testimony from a third party.

[00:06:09] Speaker 08:
that those meetings addressed Ashland's invention.

[00:06:13] Speaker 00:
Well, first of all, there was no, the testimony that we have at the court, Mr. Ashland did not help Ms.

[00:06:21] Speaker 00:
Wagner with her invention.

[00:06:24] Speaker 00:
He was specifically there to help with the testing of it and the evaluation of the invention, not whether or not he should be a co-inventor.

[00:06:32] Speaker 00:
That's not true.

[00:06:33] Speaker 04:
The question is, what evidence corroborates her testimony that she helped him with his invention?

[00:06:43] Speaker 00:
Well, let's look at the evidence of what Mr. Ashline did and did not do.

[00:06:47] Speaker 00:
Mr. Ashline, prior to the meetings with Wagner,

[00:06:52] Speaker 00:
was insisted on having advice, a head and neck restraint system that would not require and would be independent of the shoulder belts.

[00:07:00] Speaker 00:
After meeting with and having these discussions, his changes just a few months afterwards, now he adopts and uses the shoulder belts.

[00:07:08] Speaker 08:
I don't understand what you're talking about.

[00:07:09] Speaker 08:
There were plenty of prototypes beforehand that involved shoulder belts and restraints on movement of the shoulder belt.

[00:07:18] Speaker 00:
But, Gerardo, those shoulder belts were

[00:07:20] Speaker 00:
shoulder portions are not shoulder portions, that's claimed.

[00:07:23] Speaker 00:
Those are yokes that were part of the old Hubbard devices, and the Hubbard devices don't work.

[00:07:30] Speaker 00:
If you take a look, that was the problem.

[00:07:32] Speaker 00:
The problem to be solved by this patent was what would happen with the displacement of the shoulder belts, and therefore the device doesn't work in multiple and all set impacts.

[00:07:42] Speaker 08:
But Hubbard and Ashline's own prototype show

[00:07:46] Speaker 08:
channels or restraints that keep the shoulder belt on the shoulder even before any meetings between Ashline and Wagner.

[00:07:59] Speaker 00:
Mr. Ashline disparages these prior art devices.

[00:08:03] Speaker 00:
And he makes specific in his testimony, he says, what's the problem with the Hubbard yoke?

[00:08:08] Speaker 00:
Well, it's the shape of the yoke.

[00:08:09] Speaker 00:
So clearly, these prior art devices can't possibly go through and be just simply added on to what he had in advance.

[00:08:17] Speaker 00:
Why would he do that?

[00:08:18] Speaker 00:
Why would he add on something that he knows doesn't work?

[00:08:21] Speaker 00:
It has to be different.

[00:08:23] Speaker 00:
It has to be a different combination.

[00:08:25] Speaker 00:
And this is the evidence that,

[00:08:29] Speaker 00:
Wagner taught Ashline about the need to keep the shoulder belts in position is circumstantial.

[00:08:38] Speaker 00:
I agree it's circumstantial.

[00:08:40] Speaker 00:
There are no notebooks of anybody.

[00:08:42] Speaker 00:
No one kept any written notes on this.

[00:08:43] Speaker 00:
But the problem is, how do you go from not being independent of the shoulder belts, having no need for the shoulder belts,

[00:08:53] Speaker 00:
to one where now you adopt and use it and you have a structure that now maintains the position, seeks to maintain the position in a multiple and offset crash.

[00:09:04] Speaker 00:
And the other issue, if Ashline didn't use any of the teachings or discussions with these, why did he adopt the exact same term where he had never used it before?

[00:09:18] Speaker 00:
This had never appeared on any of the prior art devices, any of the prior art references.

[00:09:22] Speaker 00:
It only appears

[00:09:24] Speaker 00:
for the first time in Wagner's safety vest, which is, again, they're both working in the same genus of automotive safety.

[00:09:31] Speaker 00:
He's on head and neck restraint systems.

[00:09:33] Speaker 00:
She's looking at child safety devices.

[00:09:36] Speaker 00:
It's clear that to have a meeting and she can make a suggestion that, well, you need to keep this here like I need to keep it in place to make this device work.

[00:09:45] Speaker 04:
So let me understand.

[00:09:46] Speaker 04:
You're saying that because her patent application uses the phrase shoulder portions and then his application uses the phrase shoulder portions, that

[00:09:54] Speaker 04:
is corroborating evidence.

[00:09:55] Speaker 00:
I think it's circumstantial evidence that that discussion took place.

[00:09:58] Speaker 00:
And I think that's why our fact needs to be able to make that decision.

[00:10:01] Speaker 00:
With all of the intensity of the circumstantial evidence, did she make that contribution?

[00:10:09] Speaker 08:
OK, we're way over the time unless my colleagues have any further questions.

[00:10:13] Speaker 00:
Sorry, Your Honor.

[00:10:18] Speaker 08:
Morning, Your Honors.

[00:10:22] Speaker 02:
Excuse me, may I please the court?

[00:10:24] Speaker 02:
My name is Jeff Schiller.

[00:10:25] Speaker 02:
I'll be dealing with some of the corroboration issues which Mr. Grogan previously addressed, and then I'll be dealing with the state court claims.

[00:10:33] Speaker 02:
Your Honors, I want to go forward and address some of the issues that were raised in Mr. Grogan's argument.

[00:10:40] Speaker 08:
No, when you divide the arguments, you divide the issues.

[00:10:43] Speaker 08:
You're not allowed to come back and re-argue the same issue that he argues.

[00:10:48] Speaker 02:
OK, Your Honor, we thought there were certain corroboration issues which weren't reached.

[00:10:53] Speaker 08:
No, no, no.

[00:10:54] Speaker 08:
We're done with corroboration.

[00:10:55] Speaker 02:
OK, I'll deal with the state law issues.

[00:10:57] Speaker 02:
That's fine, Your Honor.

[00:10:58] Speaker 02:
Your Honor, there are two things which are important about the state law issues, three things that are important about the state law issues.

[00:11:04] Speaker 02:
The trial court error in making an assumption that because

[00:11:09] Speaker 02:
Julie Wagner knew about the existence of an application for a patent in 2010, that she necessarily knew or should have known what the ultimate patent would wind up being.

[00:11:22] Speaker 02:
That's simply not accurate.

[00:11:24] Speaker 02:
In 2010, when Ms.

[00:11:26] Speaker 02:
Wagner

[00:11:27] Speaker 02:
engaged a lawyer and sent a letter, she knew that there was an application.

[00:11:32] Speaker 02:
At that point, there were no approved claims.

[00:11:36] Speaker 02:
In fact, the claims had been rejected because they were certainly described by Adams.

[00:11:41] Speaker 02:
In fact, what Ms.

[00:11:42] Speaker 02:
Wagner knew in 2010 was that she had a patent for the angel vest, that she was concerned about the fact that this new patent might trump on hers and prevent her from selling her angel vest, and that the USPTO ought to be aware of the fact that this existed.

[00:12:02] Speaker 02:
She did that.

[00:12:03] Speaker 02:
She was told that it did not circumscribe her ability to sell her angel vest.

[00:12:07] Speaker 02:
And there were no allowed claims.

[00:12:10] Speaker 02:
So at that point,

[00:12:10] Speaker 02:
There was no reason that Ms.

[00:12:12] Speaker 02:
Wagner knew or should have known anything whatsoever about the ultimate patent that was issued.

[00:12:18] Speaker 02:
Now we get to 2012 and a patent issues at that point, which is different than what was out in 2010.

[00:12:27] Speaker 02:
As Mr. Grogan pointed out, there were changes as a result of the examiner process and the fact that there were allowances made and

[00:12:37] Speaker 02:
things were given up, embodiments were given up in the process.

[00:12:41] Speaker 02:
The result of that was that the patent that was issued in 2012 was completely different than what was at stake in 2010 when she knew about this.

[00:12:51] Speaker 02:
In that context, Your Honors, what Judge Bell did is impose

[00:12:57] Speaker 02:
condition on Ms.

[00:12:58] Speaker 02:
Wagner that is nowhere in the case law.

[00:13:01] Speaker 02:
And that condition is that she have an obligation to continue to follow a patent which had not been issued, determine what the new structure was, determine whether or not it might impinge upon her patent, and make a claim for co-inventorship.

[00:13:17] Speaker 02:
The fact of the matter is, Your Honors, as soon as Ms.

[00:13:19] Speaker 02:
Wagner determined, after talking to Robert Levy,

[00:13:22] Speaker 02:
that there was a oneness between her patent and what was being produced by Simpson, at that point, Your Honors, there was a claim filed shortly thereafter.

[00:13:34] Speaker 02:
There was no obligation for Ms.

[00:13:38] Speaker 02:
led her to know or to should have known that there was a patent that she was a Cohen veteran.

[00:13:44] Speaker 02:
In fact, she took appropriate steps.

[00:13:47] Speaker 02:
In any event, Your Honors, this is clearly a jury question.

[00:13:50] Speaker 02:
What she knew or should have known is a matter of fact, not a matter of law.

[00:13:56] Speaker 02:
For the judge to make a determination based upon a letter that didn't have anything to do whatsoever with what

[00:14:04] Speaker 02:
The situation was what a lot of patents were at the time and a lot of claims were at the time is simply outside the scope of what it is that he was supposed to do.

[00:14:14] Speaker 02:
Your Honors, I expected to talk about corroboration, which you got to with Mr. Grogan.

[00:14:20] Speaker 02:
If I could reserve three minutes for rebuttal instead of two, because I'm at the end of my time on the state court claims.

[00:14:25] Speaker 02:
I wish Your Honors had any questions.

[00:14:31] Speaker ?:
OK.

[00:14:38] Speaker 07:
Good morning, Your Honors, and may it please the Court.

[00:14:40] Speaker 07:
My name is Craig Killen, and I'm representing the defendants here.

[00:14:43] Speaker 07:
Trevor Ashline and Simpson Performance Products.

[00:14:46] Speaker 07:
Mr. Ashline, as the Court knows, is the named inventor on the patent that issued the 074 patent.

[00:14:53] Speaker 07:
Simpson acquired the patent or required the application that ultimately became the patent as part of an asset acquisition of Mr. Ashline's company in 2010.

[00:15:07] Speaker 07:
This is a straightforward case, and the relevant evidence is undisputed.

[00:15:14] Speaker 07:
Mr. Ashline.

[00:15:15] Speaker 08:
Let me ask you, in the figures to the Ashline 074 patent, do those show restraints on the top of the shoulder for the seatbelts?

[00:15:26] Speaker 07:
The seatbelts are shown in Figure 1, and they're fragmentary, Your Honor.

[00:15:36] Speaker 07:
There is a reference by the number 110.

[00:15:40] Speaker 08:
They would continue over the sample.

[00:15:42] Speaker 07:
Does that show shoulder belt restraints on top of the shoulder?

[00:15:47] Speaker 07:
Figure six, your honor.

[00:15:49] Speaker 07:
Yes, they're not shown in figure six.

[00:15:52] Speaker 08:
They're not shown in figure six?

[00:15:55] Speaker 07:
Maybe I didn't understand the question.

[00:15:56] Speaker 07:
I thought you were asking about the shoulder belts of the vehicle.

[00:15:59] Speaker 08:
What I'm asking is whether figure six shows this

[00:16:06] Speaker 08:
restraint of the shoulder belts on top of the shoulder.

[00:16:10] Speaker 08:
It seems to be item 16.

[00:16:13] Speaker 07:
Those are the shoulder portions.

[00:16:17] Speaker 08:
Yeah, that's my question.

[00:16:19] Speaker 08:
It does show those.

[00:16:20] Speaker 08:
Yes?

[00:16:21] Speaker 08:
Yes, Your Honor, it does show those.

[00:16:22] Speaker 08:
And that didn't change over the course of the patent prosecution, right?

[00:16:27] Speaker 08:
It did not.

[00:16:28] Speaker 07:
As the court has recognized during my colleague's argument, Mr. Ashline developed prototypes of the invention that ultimately was claimed in the 074 patent before he ever met the plaintiff.

[00:16:46] Speaker 07:
Those occurred in 2002 towards the middle of 2003.

[00:16:52] Speaker 07:
Mr. Ashline first met the plaintiff when she saw him out in August 2003.

[00:16:57] Speaker 07:
She wanted some help with an evaluation, as my colleague mentioned, of her vest idea.

[00:17:05] Speaker 07:
At least one of the prototypes that was developed in 2002 was a modification of the ubiquitous Hans device, and I would strongly disagree with that.

[00:17:17] Speaker 07:
Plants Council's point that the HONS device is ineffective.

[00:17:21] Speaker 07:
The HONS device is a very effective device and has saved many, many lives over the course of its existence.

[00:17:28] Speaker 07:
And it was the main competition that Mr. Ashline had at the time.

[00:17:31] Speaker 04:
Is the HONS device still being used?

[00:17:33] Speaker 07:
It is, Your Honor.

[00:17:39] Speaker 07:
Simpson, my client, actually owns HONS as well.

[00:17:44] Speaker 07:
And that device is still in the market.

[00:17:47] Speaker 07:
The main difference, I guess, or a key difference between what's claimed in the 07-4 patent and previous devices, such as the HANS device, is not the shoulder portions themselves because those prior devices did have shoulder portions.

[00:18:05] Speaker 07:
It was well known to everybody in the

[00:18:09] Speaker 07:
in the industry, including, of course, Mr. Ashline.

[00:18:13] Speaker 08:
There was a suggestion that the terminology shoulder portion appeared only after the claim amendment, but it also appears, for example, to be in the specification if you look at 870 column 6, line 64, it refers to 16, which I was calling your attention to earlier, as a shoulder portion, right?

[00:18:37] Speaker 08:
That's correct your honor.

[00:18:39] Speaker 07:
And the specification wasn't changed during the prosecution, right?

[00:18:43] Speaker 07:
That part of the specification was not changed.

[00:18:45] Speaker 07:
I don't think there were any other changes to the specification, but I know that was consistent from the time the application was filed.

[00:18:50] Speaker 07:
So shoulder portion was used before he started meeting with Wagner?

[00:18:55] Speaker 07:
Well this particular application was filed after his meetings with Ms.

[00:19:01] Speaker 07:
Wagner, or at least some of the meetings with Ms.

[00:19:04] Speaker 07:
Wagner.

[00:19:04] Speaker 07:
This application was filed in

[00:19:06] Speaker 07:
April 2007.

[00:19:07] Speaker 07:
But the structure that's claimed in the 07 form... Do we have in the record the applications that were filed before?

[00:19:24] Speaker 07:
I don't know if those are part of the appendix, Your Honor.

[00:19:29] Speaker 07:
I believe that

[00:19:32] Speaker 09:
If I may step back to the council table.

[00:20:00] Speaker 07:
I was checking to see whether the parent patents are part of the appendix.

[00:20:04] Speaker 07:
I'm not sure that they are.

[00:20:08] Speaker 08:
OK, so her theory is that there were changes during the prosecution, not of this patent, but of a parent patent?

[00:20:19] Speaker 07:
I think the argument from opposing counsel, as I understand it, is that

[00:20:25] Speaker 07:
the term shoulder portions was introduced when this application was filed.

[00:20:31] Speaker 07:
And they're contending that that is somehow evidence of her contribution.

[00:20:36] Speaker 08:
But the problem is the record doesn't disclose what the applications looked like before the meetings took place, right?

[00:20:45] Speaker 07:
I don't believe that that's part of the appendix.

[00:20:54] Speaker 08:
I would also continue, Your Honor, that it doesn't matter whether the term shoulder portions was used previously or not, because of all the Mr. Ashland... But it would have been helpful to know what the application looked like before these meetings took place, since they're claiming that there were changes to the application as a result of the meetings.

[00:21:18] Speaker 07:
This particular, you know,

[00:21:24] Speaker 07:
This particular application was filed after the meetings.

[00:21:27] Speaker 07:
This particular application was filed in 2007.

[00:21:32] Speaker 07:
Mr. Ashline had a series of them.

[00:21:34] Speaker 08:
So they didn't put in the application beforehand to show how it was changed?

[00:21:39] Speaker 07:
Well, I'll let opposing counsel address that issue on rebuttal, Your Honor, because I don't believe that's something that we, as the appellee,

[00:21:52] Speaker 07:
added to the appendix.

[00:21:54] Speaker 03:
I mean if their argument is the corroboration is all the stuff up until the meetings never had a shoulder portion and after the meetings there was a shoulder portion we would assume that they would have introduced that as corroborating evidence for her testimony that she's the one that contributed.

[00:22:20] Speaker 07:
I don't want to speak for their decision-making process, Your Honor.

[00:22:25] Speaker 08:
What I will say is that... Well, I would have thought you're familiar with the record.

[00:22:30] Speaker 08:
And they make this contention that things happened in the prosecution as a result of the meetings.

[00:22:36] Speaker 08:
The only way to establish that is to show what the applications looked like before the meetings and what they looked like afterwards and what changes were made.

[00:22:46] Speaker 08:
But you're telling me that they didn't bring that in and the record doesn't disclose that?

[00:22:55] Speaker 07:
I did not encounter that when I was studying the briefs in preparation for this argument, Your Honor.

[00:23:01] Speaker 07:
It may be in the appendix, which is voluminous, but it's not something that we are relying on as our argument against the appeal being taken by the plaintiff.

[00:23:22] Speaker 07:
The district court noted, I think, correctly in its opinion that the use of the term shoulder portions is a generic term.

[00:23:32] Speaker 07:
And there's nothing impermissible or inappropriate about using that term.

[00:23:39] Speaker 07:
in the patent.

[00:23:41] Speaker 07:
The two words are easily understood.

[00:23:44] Speaker 07:
It's part of a member.

[00:23:46] Speaker 07:
The claim element requires a member that has shoulder portions.

[00:23:49] Speaker 07:
So it's a member that has portions that are somewhere on the shoulder.

[00:23:53] Speaker 07:
And it's a shorthand, generic term.

[00:23:59] Speaker 07:
The structure of those shoulder portions, as they're referred to in the patent, was well known in the art.

[00:24:06] Speaker 07:
was well known to Mr. Ashline before he ever met Ms.

[00:24:11] Speaker 07:
Wagner.

[00:24:11] Speaker 07:
Whether you call them shoulder portions or you call them shoulder extensions or lateral extensions or whatever term you use, his prototypes that he developed in 2002 and 2003 already had that structure.

[00:24:24] Speaker 04:
That is in the appendix.

[00:24:27] Speaker 04:
Yes, Your Honor.

[00:24:29] Speaker 07:
That would be

[00:24:38] Speaker 07:
It's in the declaration of Trevor Ashline.

[00:24:41] Speaker 07:
It starts at appendix 117 page 130 117 and it goes through 130 shows Yes, your honor 130 this is the prototype that mr. Ashline created by modifying a hans device and

[00:25:08] Speaker 07:
As my colleague mentioned, the Hans device has a long yoke that extends over the clavicle down to the sternum area.

[00:25:16] Speaker 07:
And one of Mr. Achtlein's goals when he was designing this invention that ultimately became the 07-4 patent is he didn't want to use the long yoke.

[00:25:29] Speaker 07:
He wanted to stop it before the clavicle.

[00:25:33] Speaker 07:
so that if there was a force that was applied to the clavicle in a collision event that it wouldn't break the driver's clavicle or be less likely to.

[00:25:45] Speaker 08:
So he moved the placement of the shoulder belts after the expiration of one of these Hubbard patterns?

[00:25:52] Speaker 07:
He initially, the R3 device, which was the predecessor to the hybrid that he marketed,

[00:26:03] Speaker 07:
The R3 device had shoulder portions, but the shoulder portions did not extend beside the neck of the driver.

[00:26:08] Speaker 07:
They stopped behind the trapezius muscle.

[00:26:12] Speaker 07:
And when the Hubbard patent, he was threatened with patent infringement by Dr. Hubbard,

[00:26:17] Speaker 07:
When the Hubbard patent expired in 2005, I believe, it's November 2005, I think, then he was free to move it back.

[00:26:28] Speaker 07:
So this embodiment that's at appendix 130 does show the shoulder portions extending over the top of the trapezius muscles.

[00:26:37] Speaker 07:
They don't go all the way down to the sternum as the Hans device did because he cut them off.

[00:26:42] Speaker 07:
But based on that interaction with Dr. Hubbard,

[00:26:45] Speaker 07:
he moved it back, the shoulder portions back, so that they didn't extend over the trapezius muscles.

[00:26:52] Speaker 07:
And after that patent expired, he was free to move them back forward again without any fear of patent infringement.

[00:27:04] Speaker 05:
Thank you, Your Honors.

[00:27:09] Speaker 05:
Good morning.

[00:27:10] Speaker 07:
Regarding the issue of

[00:27:12] Speaker 07:
claim construction, I would merely state that before the district court, the plaintiff offered a proposed construction of the shoulder portions limitation that basically just took the language from the claim and then added a whole clause at the end of it.

[00:27:33] Speaker 07:
And the clause that they sought to add was to anchor or restrain the shoulder belts in a position on top of the shoulders during and after a vehicle impact.

[00:27:41] Speaker 07:
The district court properly rejected that.

[00:27:44] Speaker 07:
Attempt to add words to the claim that don't appear in the claim.

[00:27:49] Speaker 07:
I mean, nothing in the specification, nothing in the claim language.

[00:27:53] Speaker 04:
Do you agree that the claims are broad enough to cover the belt being on top, could be on the side, could be on the back?

[00:28:03] Speaker 04:
You agree, though, that the claims, even if they're not limited to being on top, include being on top, right?

[00:28:09] Speaker 07:
Yes, Your Honor, I would agree that the claims as written do not require the

[00:28:18] Speaker 07:
the shoulder portion to extend over the trapezius muscles, or the top of the shoulders.

[00:28:24] Speaker 04:
You said they don't inquire, but they would include it.

[00:28:29] Speaker 04:
They're broad enough to include it, right?

[00:28:30] Speaker 07:
Yes, Your Honor, they would include that.

[00:28:37] Speaker 07:
In that regard, I see the amendment that was made to the claim that

[00:28:47] Speaker 07:
The other side is relying on heavily.

[00:28:53] Speaker 07:
There was an amendment made to claims 1 and 13 of the issue patent.

[00:29:02] Speaker 07:
And really, all that was done.

[00:29:04] Speaker 08:
Of the 074?

[00:29:05] Speaker 07:
Yes, Your Honor.

[00:29:08] Speaker 07:
So the specification was not changed, but the claim language was changed in response to a rejection based on the Adams reference, as opposing counsel mentioned.

[00:29:19] Speaker 07:
What happened was the word over was deleted in those claims, and the words on top of were substituted.

[00:29:31] Speaker 07:
To my way of thinking, if anything, that was a broadening amendment, because over would

[00:29:36] Speaker 07:
I think of over as being over the trapezius muscles, whereas if anything, that was a broadening amendment.

[00:29:47] Speaker 08:
I think we're out of time.

[00:29:49] Speaker 08:
Thank you.

[00:29:50] Speaker 08:
All right.

[00:29:50] Speaker 08:
Thank you.

[00:29:50] Speaker 08:
Mr. Shiller, you have three minutes.

[00:29:54] Speaker 05:
There were 16 different sessions within the California Code of Civil Procedure.

[00:30:03] Speaker 05:
The parties did not specify in the agreement the Title IX.3 controls.

[00:30:13] Speaker 08:
So for corroboration, did you introduce any evidence about what the patent applications looked like before these meetings and how they were changed after the meeting?

[00:30:24] Speaker 02:
Yes, Your Honor.

[00:30:24] Speaker 02:
This is a continuation in part patent.

[00:30:28] Speaker 02:
The original patent, the current patents,

[00:30:31] Speaker 02:
Page 920 of the record, that's parent patent 669.

[00:30:35] Speaker 02:
And at page 900 of the record, appendix 900, which is parent patent 623.

[00:30:40] Speaker 02:
These were parent patents that did not include the words shoulder portions or any relation thereto.

[00:30:50] Speaker 04:
Hang on, just a minute.

[00:30:54] Speaker 04:
So the patent date.

[00:30:55] Speaker 04:
A920 is the parent patent.

[00:30:58] Speaker 02:
Parent A920 and A900 are the parent patents to the ultimate continuation.

[00:31:03] Speaker 04:
It's the final date of December 2003.

[00:31:06] Speaker 04:
Correct.

[00:31:07] Speaker 02:
Correct, Your Honor.

[00:31:08] Speaker 02:
Before there were substantial meetings, there was one conversation with Ms.

[00:31:13] Speaker 02:
Wagner and Mr. Ashline before that point, but the substantial bulk of the meetings took place in 2005.

[00:31:19] Speaker 02:
Those were filed beforehand.

[00:31:21] Speaker 02:
They don't mention shoulder portions.

[00:31:24] Speaker 02:
But they do show restraint on the compound.

[00:31:28] Speaker 02:
They do, Your Honor, but they do it in a different context.

[00:31:32] Speaker 02:
An issue patent, as this Court has held on numerous occasions, is a combination of elements.

[00:31:37] Speaker 02:
The fact that certain elements are not new does not mean that combination... I understand, but the question is...

[00:31:44] Speaker 08:
before us is whether this corroboration of her testimony from the evidence about the prosecution of the patent application.

[00:31:53] Speaker 08:
We have an application which essentially occurred before the meeting at 920 here.

[00:32:00] Speaker 08:
And you admit that that shows shelter restraints, which are her alleged contribution.

[00:32:06] Speaker 08:
So I'm not understanding how the changes in the language

[00:32:10] Speaker 08:
if there were changes in the language, help you when the very restraints that she claims to have invented were already shown in the patent specifications.

[00:32:22] Speaker 02:
Your Honor, the fact that the

[00:32:25] Speaker 02:
continuation in part of patents, the only difference between those patents and the original parent patents is the phrase shoulder portions and the use of the shoulder portions to connect and restrain in the case of an accident.

[00:32:40] Speaker 04:
What about in this patent that showed us in column seven, one, two, three, four, five, six, seven.

[00:32:47] Speaker 04:
It says the lateral extension is 28 extended distance along the right shoulder.

[00:32:54] Speaker 04:
No, Your Honor, there certainly are shoulder, there are shoulder restraints.

[00:33:10] Speaker 02:
There were a lot of shoulder restraints in the industry, as Mr. Killian points out in his opinion, in his brief on Mr.

[00:33:17] Speaker 02:
Ashline had nine patents on safety devices and in this case, there were certainly, there were the Hans devices, there were the R3s, there were a lot of different shoulder portions.

[00:33:29] Speaker 02:
Some had yokes, some had, but this particular combination of elements was new.

[00:33:35] Speaker 08:
If it hadn't been new, Your Honor, there wouldn't have been a patent there.

[00:33:38] Speaker 08:
What particular combination of elements are you talking about?

[00:33:41] Speaker 02:
The combination of elements that included over the shoulders, which are connected in

[00:33:47] Speaker 02:
strained forward movement.

[00:33:49] Speaker 02:
But this patent application shows that.

[00:33:53] Speaker 02:
Your Honor, if in fact the patent application shows that it is certain, then there was no reason whatsoever to grant the continuation patent because it's nothing new.

[00:34:02] Speaker 02:
The fact of the matter is the examiner found that there was an additional patentable element here.

[00:34:09] Speaker 02:
If everything that was in the original parent patent was in existence, there's nothing in the continuation patent that adds.

[00:34:17] Speaker 02:
The fact is the continuation patent adds precisely because it deals with shoulder portions.

[00:34:22] Speaker 02:
And the fact that it deals with shoulder portions and these particular shoulder portions is what allows for there to be an issuance.

[00:34:30] Speaker 02:
Otherwise, Mr. Killian is claiming that the continuation patent, the 07-4 patent, should not have ever been issued in the first place.

[00:34:37] Speaker 04:
Is it a continuation or a continuation?

[00:34:39] Speaker 02:
Continuation in part.

[00:34:41] Speaker 02:
But the difference... And the claim scope is different.

[00:34:43] Speaker 02:
The claim scope is different, but the difference is the difference in

[00:34:47] Speaker 02:
The principal difference in the basic continuation, in part, is the shoulder portions and the way they're configured, Your Honor.

[00:34:56] Speaker 02:
Your Honor, my time is up, but I'm happy to continue answering questions, if there are any others.

[00:35:01] Speaker 08:
OK.

[00:35:02] Speaker 08:
Hearing no further questions, thank you, Mr. Scheller.

[00:35:05] Speaker 08:
Thank you, Your Honor.

[00:35:06] Speaker 08:
Thank all counsel, the cases.