[00:00:00] Speaker 00: Our last case today is Chamberlain Group, Inc. [00:00:04] Speaker 00: versus the ITC. [00:00:06] Speaker 00: Appeal number 20-1965. [00:00:09] Speaker 00: Mr. Dowd, when you're ready, you may begin. [00:00:15] Speaker 02: May it please the court? [00:00:16] Speaker 02: Jim Dowd on behalf of Chamberlain. [00:00:19] Speaker 02: In this case, the ALJ at the ID level committed the same basic error for two patents, both the 404 patent and the 223 patent. [00:00:30] Speaker 02: In her markman orders, she correctly rejected Nortek's attempt to import limitations that the claims do not recite. [00:00:38] Speaker 02: But then in her initial determination, the ID, she committed the error that her markman order avoided. [00:00:45] Speaker 02: For the 404 patent, she imported a head unit requirement into the term movable barrier operator, or MBO. [00:00:55] Speaker 02: And for the 223 patent, [00:00:56] Speaker 02: She imported a works or functions requirement into operates. [00:01:01] Speaker 02: Now, the commission rightly corrected the error for the 223 patent, but failed to go far enough, should have also corrected that error for the 404. [00:01:12] Speaker 00: Do I remember correctly that the 223 patent really is subject of the cross appeal? [00:01:17] Speaker 02: It is. [00:01:17] Speaker 00: And I wonder whether you should discuss that later. [00:01:20] Speaker 02: I will, Your Honor. [00:01:21] Speaker 02: I just wanted to kind of frame the issues. [00:01:24] Speaker 02: And I want to address the 404 patent now. [00:01:27] Speaker 02: and reserve eight minutes for response. [00:01:29] Speaker 00: Can I ask you one other question, just very quickly? [00:01:31] Speaker 00: Your opening brief identifies a number of terms, one of which you've already used today, as being confidential. [00:01:39] Speaker 00: Are any of the words in your opening brief confidential? [00:01:43] Speaker 02: My understanding is that the words of the briefing are not confidential. [00:01:46] Speaker 00: OK. [00:01:46] Speaker 00: So we don't need to worry about the words that are highlighted in yellow as being confidential in your opening brief. [00:01:53] Speaker 00: No, they're not in the other briefs. [00:01:54] Speaker 00: I just want to make sure. [00:01:55] Speaker 02: My understanding is that those terms were identified below, but NORTECH has since agreed that in the briefs, they're not confidential. [00:02:04] Speaker 05: So we don't have to worry about any of the confidentiality stuff. [00:02:07] Speaker 02: I believe not. [00:02:08] Speaker 02: And I will attempt to keep my argument at that level. [00:02:11] Speaker 00: Well, it's important also for an opinion, right? [00:02:13] Speaker 00: I mean, so the question, even if you keep yourself from saying them, we need to know what we can and cannot say. [00:02:19] Speaker 02: Yes, Your Honor. [00:02:20] Speaker 00: Yes, Your Honor. [00:02:20] Speaker 00: So are any of the words confidential? [00:02:22] Speaker 02: I don't believe so, Your Honor, no. [00:02:24] Speaker 00: Thank you. [00:02:26] Speaker 02: So turning now to the movable barrier operator, the central issue for the 404 patent is the construction of this term, which I'll refer to MBO for short. [00:02:37] Speaker 02: That issue is subject to de novo review. [00:02:41] Speaker 02: And that issue would resolve. [00:02:44] Speaker 02: under the correct construction, all of the issues for the 404 patent. [00:02:49] Speaker 04: How do we know that what we really have is a pure issue of claim construction as opposed to an application of the construction claim linear meaning, which might be reviewed for substantial evidence? [00:03:01] Speaker 02: Because that is what the ALJ below said in two ways, two or three ways. [00:03:08] Speaker 02: First, in her ID, she's specifically under a heading that says the claimed, the claimed, is it A73, the claimed movable barrier operator does not encompass a wall station. [00:03:23] Speaker 02: A73, Your Honor? [00:03:26] Speaker 02: She's referring to the claim, and the term movable barrier operator in quotes is the claim term. [00:03:33] Speaker 02: She then goes on and makes it abundantly clear. [00:03:36] Speaker 02: And now this is at A-102. [00:03:37] Speaker 02: And I'm citing her note. [00:03:39] Speaker 00: What about page A-76? [00:03:41] Speaker 02: A-76. [00:03:43] Speaker 00: Yeah, at the top of the page. [00:03:46] Speaker 02: I don't have it memorized, Your Honor, but I believe she's at that stage. [00:03:51] Speaker 02: Is that what she's saying in the figure? [00:03:53] Speaker 00: No, I was looking at the description of Figure 5. [00:03:55] Speaker 00: Look at the top of page A-76. [00:03:59] Speaker 00: It says Figure 5 colon. [00:04:02] Speaker 00: that there's some language. [00:04:03] Speaker 00: Figure one in 404 Patton annotated to emphasize that, comma, as a matter of claim construction, comma, movable barrier operator is distinct from ball station. [00:04:13] Speaker 02: I would certainly agree that's an indication that she's engaging in claim construction. [00:04:18] Speaker 00: And your other site was 101? [00:04:19] Speaker 02: 102, note 24. [00:04:23] Speaker 02: And there she says in the footnote, the last line, quote, as a matter of claim construction, [00:04:30] Speaker 02: The quote, movable barrier operator, close quote, which possesses the claimed processor does not encompass a wall station. [00:04:39] Speaker 02: So that is very clearly a revised claim construction that she then applies. [00:04:44] Speaker 02: And that's why I believe it is subject to de novo review. [00:04:49] Speaker 02: Resolving that claim construction, fixing that error would resolve all of the issues in the case. [00:04:55] Speaker 00: Why isn't her claim construction correct when every single embodiment in the patent processor is located in the head unit, at least in the embodiments depicted? [00:05:08] Speaker 02: First, we would start with the claim language. [00:05:11] Speaker 02: In the claims, what the claims say is a movable barrier operator connected to control the movement of the barrier with or without an alarm. [00:05:21] Speaker 02: Connected to control. [00:05:22] Speaker 02: That is how the claim defines what the movable barrier is. [00:05:27] Speaker 02: And it then goes on to say the movable barrier operator comprising, open-ended, allows for different types of configurations. [00:05:35] Speaker 02: the movable barrier operator comprising a communication connection, that's limitation 11B, and a processor. [00:05:45] Speaker 02: And that's limitations 11C through F. So long as you have a communication connection and you have a processor, and those two components are connected to control the movement of the barrier, while alarming or not alarming, [00:06:02] Speaker 02: That is what the claim requires. [00:06:04] Speaker 00: Now, the processor alone can't move the barrier. [00:06:07] Speaker 00: It has to control some sort of something that moves the barrier. [00:06:10] Speaker 02: But the claim is very specific about this. [00:06:13] Speaker 02: The claim does not recite any box. [00:06:15] Speaker 02: It doesn't recite a head unit. [00:06:17] Speaker 02: It doesn't recite a wall station. [00:06:20] Speaker 02: It doesn't even recite a motor. [00:06:22] Speaker 02: What it says is you have two components, a processor and a communication connection. [00:06:28] Speaker 00: Even if it had another element in it, does it say anything about [00:06:31] Speaker 00: a singular housing? [00:06:33] Speaker 02: It does not. [00:06:34] Speaker 02: It doesn't say anything about a singular housing in the claim, no. [00:06:37] Speaker 02: It only says you have to have these two elements, a processor that does the detecting and effecting, or the determining and effecting limitations, and a communication connection. [00:06:47] Speaker 02: And those can be anywhere. [00:06:49] Speaker 02: They don't have to be physically located in a single box. [00:06:53] Speaker 02: They can be distributed so long as they are connected to control the movement. [00:06:58] Speaker 02: and then alarm or not alarm, based on the communication connection that issues the command. [00:07:03] Speaker 04: You did not propose that as a construction below, though. [00:07:06] Speaker 02: We certainly did. [00:07:07] Speaker 02: We certainly did, Your Honor. [00:07:09] Speaker 02: We argued that the claim term should be given its plain meaning. [00:07:13] Speaker 02: Movable barrier operator does not restrict to a head unit. [00:07:17] Speaker 02: It doesn't restrict to a wall station. [00:07:19] Speaker 02: And instead, we argued specifically that it is [00:07:23] Speaker 02: these two components connected to control. [00:07:26] Speaker 02: That was the issue in the Markman briefing, and actually you can see that by looking to the Markman briefing. [00:07:36] Speaker 02: Nortek argued specifically about the head unit, and the processor couldn't be in the wall station 40. [00:07:44] Speaker 02: That's at A101-64. [00:07:47] Speaker 02: We responded saying, no, the concept of a head unit appears nowhere in the claims, and that Nortek was, quote, presumably trying to manufacture a non-infringement position by isolating the apparatus of claim 11 to a head unit. [00:08:01] Speaker 04: What page is yours? [00:08:03] Speaker 02: A10112. [00:08:04] Speaker 02: OK. [00:08:04] Speaker 04: But what I meant to say, not that you weren't clear about the head unit versus the wall station, but when it came time in the Markman to propose a construction, you didn't say anything along the lines of what it sounds like you're asking us to construe today, connected to control or all the circuitry and hardware that might ultimately operate. [00:08:27] Speaker 04: You never proposed that, did you? [00:08:28] Speaker 02: Because that's the express language of the client. [00:08:31] Speaker 04: Express language of the claim says a movable barrier operator But what is it you would have us do today on claim construction? [00:08:40] Speaker 02: I would have you reverse her construction that limits that imposes this negative requirement that limits the movable barrier operator to the head unit and instead [00:08:52] Speaker 02: revert back to the plain language, which just says that a movable barrier operator is met if the components that are recited as comprising that movable barrier operator are connected to control the movement. [00:09:07] Speaker 00: Could you remind me what her initial claim construction was? [00:09:10] Speaker 00: Was it that ordinary meaning, I don't need to limit it to the head movement? [00:09:14] Speaker 00: What exactly was it? [00:09:16] Speaker 02: It was. [00:09:17] Speaker 02: Her initial claim construction, and this for the record is A26, [00:09:21] Speaker 02: specifically rejected this idea that a movable barrier operator was limited to a head unit. [00:09:28] Speaker 00: Did she say affirmatively what the claim construction was? [00:09:30] Speaker 02: She said, no construction is required because the claim term is clear and has its plain and ordinary meaning as the words convey. [00:09:39] Speaker 02: So the words just say, I've got an operator that moves a barrier. [00:09:44] Speaker 02: That's all I need. [00:09:45] Speaker 02: And she then goes on to say that with respect to Nortek's head unit idea, the only time the specification references a head unit is in relation to the movable bearer is as a non-limiting example. [00:10:03] Speaker 02: And this, Judge Soule, comes back to your question. [00:10:05] Speaker 02: A non-limiting example. [00:10:08] Speaker 02: It is not limiting. [00:10:09] Speaker 02: And she says, it does not justify NORTEK's attempt to import claim limitations to narrow the scope of the movable barrier operator. [00:10:17] Speaker 02: So it's claim construction. [00:10:18] Speaker 02: She imposed a limitation that is incorrect. [00:10:23] Speaker 04: I do want to- I'm nowhere into your time, but when we get to the initial determination, though, by then, [00:10:33] Speaker 04: She's saying at 877 that clarifying that the MBO does not encompass a wall station is readily discernible from the specification. [00:10:44] Speaker 04: And then she threatens your side, I think, with sanctions for arguing otherwise and trying to broaden the construction. [00:10:51] Speaker 04: How do we get from point A to point B? [00:10:53] Speaker 02: Yes, Your Honor. [00:10:54] Speaker 02: I certainly want to answer that. [00:10:55] Speaker 02: I am mindful that I do want to reserve time for the cross appeal. [00:10:58] Speaker 00: To the extent we're asking you questions, we will give you extra time. [00:11:01] Speaker 02: Thank you, because I'm here to answer the questions. [00:11:04] Speaker 02: So the issue with 77 is what she's doing is she's saying exactly directly opposite to what she said in her markman order. [00:11:16] Speaker 02: She's imposing a negative limitation that says these components, the communication connection and the processor, must be in the head unit. [00:11:27] Speaker 02: If they're not in the head unit, then [00:11:29] Speaker 02: that the claim isn't infringed. [00:11:32] Speaker 02: And we can actually see that as we walk down through her fact findings. [00:11:37] Speaker 02: So the reason I say that flipping that construction results in infringement period is if you go through her fact findings, this is first with the processor at A101 to 105. [00:11:49] Speaker 02: She walks through and she finds that the processor in the wall station, it does identify whether it's a local or a remote [00:11:57] Speaker 02: command that it's received, and that it does affect closing with or without an alarm. [00:12:03] Speaker 02: based upon that determination. [00:12:05] Speaker 02: It does what steps C through F say. [00:12:08] Speaker 02: And then at the bottom of A105 over under the top of A106, she says, summarizing, that the wall station processor in the 404 alternative products appears to determine and affect, using the language of the claim, just as the claim 11 requires. [00:12:28] Speaker 02: So under a construction that does not limit MBO to a head unit, that processor is connected to control the movement exactly as the claim recites. [00:12:41] Speaker 02: The second thing, though, is with respect to 11b and the issue around the communication connection, [00:12:49] Speaker 02: That construction issue also resolves the 11b objection as well, because 11b recites a number of communication connections, including a wireless communication system connection, which she specifically found was in the wall unit of the Nortek products. [00:13:07] Speaker 02: And here I'm reading from A83, note 20. [00:13:11] Speaker 00: I want to ask you a question about the ruling on the alternative product, no, the original products. [00:13:17] Speaker 00: Yes. [00:13:18] Speaker 00: And the evidentiary ruling, I guess, a ruling that one of the issues was not properly preserved under the court's ground rules. [00:13:28] Speaker 00: I believe that's your main appeal, right? [00:13:32] Speaker 02: It is. [00:13:32] Speaker 00: OK. [00:13:33] Speaker 00: Could you address that a little bit? [00:13:34] Speaker 00: Give me your best argument for why we shouldn't give her deference. [00:13:39] Speaker 00: given her ground rule number 10.1 that talks about the level of specificity that you have to have in your post-trial brief in order to preserve issues. [00:13:50] Speaker 00: And why wasn't the push button, why wasn't she correct in saying, I can't tell what you mean just by push button? [00:13:56] Speaker 02: Yeah, let me answer that in two ways. [00:13:58] Speaker 02: The first is, [00:14:01] Speaker 02: You don't need to reach that issue at all under the correct construction of MBO. [00:14:06] Speaker 02: Because limitation 11B is met by the Wi-Fi receiver, what's in the language of the claim, the wireless network system connection. [00:14:20] Speaker 02: And here, she made a finding. [00:14:23] Speaker 02: This is at A83, note 20. [00:14:26] Speaker 02: There is no dispute that the 404 accused products have wireless communication system connections in their wall stations in the form of Wi-Fi receivers. [00:14:38] Speaker 02: So there's no dispute about that. [00:14:40] Speaker 02: The only reason she found that wasn't enough to meet a limitation 11B is because she found the movable barrier operator limited to the head unit. [00:14:52] Speaker 02: So reversing that, [00:14:54] Speaker 02: the defaults back to this. [00:14:57] Speaker 02: And therefore, 11b is met independently of the waiver issue based on the Wi-Fi connection. [00:15:03] Speaker 02: And that, we argued in our opening brief at page 45, in our reply brief at pages 52 to 53, that is in the briefing. [00:15:13] Speaker 02: On the specific issue around the local wired connection, that's an alternative way that 11B could be met, the local wired connection. [00:15:24] Speaker 02: And there, the decision was an abuse of discretion, Your Honor, that resulted in the ALJ finding facts that she acknowledged and Nortek admitted are contrary to the true facts of the 404 accused products. [00:15:37] Speaker 02: The ALJ found and Nortek conceded that the 404 accused products have a local wired connection as 11B recites and that all commands, this was Nortek's position, all commands received at the head unit, received at the head unit are transmitted over that local wired connection. [00:15:58] Speaker 02: That's the true fact. [00:16:00] Speaker 02: Yet the ALJ found Nortex products do not infringe 11B's local wired connection, contrary to that fact. [00:16:07] Speaker 02: And infringement is a finding of fact. [00:16:10] Speaker 05: What about the waiver issue, though? [00:16:13] Speaker 02: This was absolutely not waived, Your Honor. [00:16:16] Speaker 02: It was not waived. [00:16:17] Speaker 02: The evidence below, and this is from Nortex [00:16:21] Speaker 02: own corporate representative witness. [00:16:23] Speaker 02: We asked him, what happens when you press the button on the wall station? [00:16:27] Speaker 02: He testified it issues a command that goes over a two-wire connection. [00:16:33] Speaker 02: It was undisputed that this local wired connection exists and that the only way the head unit can receive a command is over that two-wire connection. [00:16:43] Speaker 05: Where does the record show you making the argument that she said was waived? [00:16:47] Speaker 05: I think that's what we're interested in. [00:16:49] Speaker 02: It's at A13835. [00:16:51] Speaker 02: That's in the post-hearing brief. [00:16:55] Speaker 02: And that is when we are introduced. [00:16:57] Speaker 05: What is that? [00:16:58] Speaker 05: 13,000? [00:16:59] Speaker 02: Yep. [00:16:59] Speaker 02: It's in two places, Your Honor. [00:17:01] Speaker 02: The first is A13835. [00:17:05] Speaker 02: And what we say there, and this is against the backdrop of the only way the head unit can receive a command is over the local-wide connection. [00:17:12] Speaker 02: That is undisputed. [00:17:14] Speaker 02: We say there's no dispute that Nortex products distinguish between commands received over the Wi-Fi and commands received from the button on the wall station. [00:17:25] Speaker 02: We're specifically talking about the head unit receiving commands from the button on the wall station. [00:17:33] Speaker 02: The ALJ found, this is at 88. [00:17:37] Speaker 02: NorTech contended that in the 404 accused products, quote, all the communications relevant to this claim element are received over the same connection, i.e. [00:17:47] Speaker 02: the local wired connection between the wall station and the head unit. [00:17:51] Speaker 02: So if the head unit is receiving a command, it is undisputed that it is over that local wired connection. [00:17:58] Speaker 04: Is that how you characterize it in your pre-hearing brief? [00:18:02] Speaker 02: It is, Your Honor. [00:18:03] Speaker 02: That is how we talked about it in the pre-hearing brief. [00:18:05] Speaker 04: Where do you talk about the button? [00:18:06] Speaker 02: We do, Your Honor, because we relied on the testimony. [00:18:10] Speaker 02: Can you give us a page site where you said it's the button? [00:18:13] Speaker 02: We relied on the testimony of Mr. Null. [00:18:16] Speaker 02: And I can find the page site there. [00:18:20] Speaker 02: Let's make sure I'm in the right brief, Your Honor. [00:18:22] Speaker 02: Sorry about that. [00:18:24] Speaker 02: And so I'm at appendix 10619. [00:18:27] Speaker 02: And we're looking at claim 11b. [00:18:30] Speaker 02: In the 404 accused products, the element is met because 10619. [00:18:41] Speaker 02: And so if you go to the claim element 11B, it's described as receiving commands via communication connection with the wall station, the local wired connection, and the system wire connection. [00:18:57] Speaker 02: But the local wire is what we're talking about. [00:19:00] Speaker 02: And it specifically refers to Dr. Subramanian's infringement report, which those paragraphs that are cited, paragraph 143, for example, refers back to Dr. Subramanian's analysis at paragraphs 89 to 90 of his report. [00:19:18] Speaker 02: I'll bring you to those in a moment. [00:19:20] Speaker 02: But that is specifically talking about receiving the command via the local wired connection. [00:19:28] Speaker 02: And it was undisputed, as I mentioned. [00:19:30] Speaker 04: Does the word button appear here in your pre-hearing brief? [00:19:34] Speaker 02: It does in the sense that, if I go to Dr. Sullivan. [00:19:36] Speaker 02: It doesn't literally, correct? [00:19:39] Speaker 02: The word button is not on that page, Your Honor. [00:19:42] Speaker 02: Certainly I agree with that. [00:19:43] Speaker 02: All right. [00:19:44] Speaker 04: And then the ALJ says, you built this post hearing on an aside that Dr. Subrahanian made in the course of this lengthy hearing. [00:19:56] Speaker 04: Why is that an abuse of discretion? [00:19:58] Speaker 02: But it's an abusive discretion because it was not an aside. [00:20:01] Speaker 02: Our theory from the get-go, and I now have this is appendix 12105. [00:20:07] Speaker 02: This is the portion of Dr. Subramanian's report where he explains this. [00:20:14] Speaker 02: And he's saying, in particular, [00:20:17] Speaker 02: The installation instructions instructs the user to press the wall station's up and down arrow to initiate opening or closing the door, pressing the button. [00:20:29] Speaker 04: Did he say button? [00:20:30] Speaker 02: He says the up or down arrow, which is listed as a button on the wall station. [00:20:35] Speaker 02: And then he specifically quotes the passage from Mr. Null's testimony that I have been referring to where Mr. Null testified, so when you press the button, [00:20:45] Speaker 02: using the word button. [00:20:47] Speaker 02: When you press the button, that wall station firmware detects that button for us, and it will send over a cycle command to the head unit across the two-wire connection. [00:20:58] Speaker 02: This is our experts report before trial. [00:21:02] Speaker 02: That has been our position since before trial. [00:21:05] Speaker 02: It was our position at trial. [00:21:07] Speaker 02: It was our position in the post-trial brief. [00:21:10] Speaker 02: You press the button. [00:21:11] Speaker 02: Pressing the button closes the circuit. [00:21:13] Speaker 02: It causes the command to be sent. [00:21:16] Speaker 02: And the only way to send it, the only way to receive it, is over that two-wire connection. [00:21:21] Speaker 05: You rely on those three places in the response. [00:21:24] Speaker 05: 13,835, 10,619, and 12,105, correct? [00:21:29] Speaker 02: I believe that's correct, Your Honor. [00:21:32] Speaker 02: The 12,105 comes. [00:21:35] Speaker 02: That's the expert report. [00:21:36] Speaker 02: Comes in the expert report. [00:21:38] Speaker 02: And it's actually in a section that starts at 12100. [00:21:43] Speaker 02: and walks through each iteration and highlights the wires and where they are. [00:21:48] Speaker 05: Stan, one question. [00:21:50] Speaker 05: On this section we've been talking about there, all of these, the yellow marking, confidential, do we have to worry about that anymore, or is that all of this? [00:22:00] Speaker 02: In the appendix, in the expert's report, I believe we do have to worry about the yellow being confidential. [00:22:06] Speaker 02: And what I've read out in open court is from the portion that is not confidential on page 12105. [00:22:13] Speaker 00: And also, I think that in your opening brief, you read out some things that were marked as confidential. [00:22:19] Speaker 00: But are those confidential or not? [00:22:21] Speaker 00: For example, 813-835, the entire page is highlighted in yellow. [00:22:28] Speaker 02: I believe that that is not confidential, Your Honor, at this stage. [00:22:33] Speaker 02: That's what I understood. [00:22:34] Speaker 02: I tried to avoid getting into anything like specific source code issues, which is where I understand the confidentiality lies. [00:22:41] Speaker 00: OK. [00:22:44] Speaker 00: I think if you wanted to address your cross appeal, now would be the time. [00:22:48] Speaker 00: You're well into your rebuttal time. [00:22:50] Speaker 00: Yes. [00:22:51] Speaker 00: Do you have something you want to say? [00:22:53] Speaker 00: No, Your Honor. [00:22:54] Speaker ?: OK. [00:22:55] Speaker 02: We had ordered so that we would address the 404 issues on the first and then I would say Okay, well, thank you, mr. Dow do you have anything else you want to add your I don't think you have anything else to address but not on this your honor I think your honors probably saw in the briefing on the 05 to that's expired and so therefore we'd asked for Vacating the invalidity finding on that patent as a result of it expiring during appeals [00:23:25] Speaker 00: Okay. [00:23:27] Speaker 00: Mr. Day. [00:23:29] Speaker 01: May it please the court. [00:23:30] Speaker 01: Evan Day for Noatek. [00:23:32] Speaker 01: I wanted to start with one of the points Mr. Dowd made recently about the waiver issue and we disagree with Mr. Dowd's position that the court doesn't need to raise that issue. [00:23:44] Speaker 01: And the reason why is it's not just 11B. [00:23:47] Speaker 01: There are two other elements, 11E and 11F, that depend on the local wired connection. [00:23:52] Speaker 01: And ALJ referenced those at appendix 87. [00:23:56] Speaker 01: So as long as the ALJ didn't abuse reconstruction by finding that there was a change of position by Chamberlain, that waiver finding holds. [00:24:05] Speaker 01: And that disposes of all of the 404 accused products. [00:24:09] Speaker 04: So why isn't it an abuse of discretion? [00:24:12] Speaker 04: I mean, it seems pretty clear what button means. [00:24:16] Speaker 04: It doesn't just physically mean the button. [00:24:19] Speaker 04: It means what's connected to the button and the wires, et cetera. [00:24:22] Speaker 04: There's expert support for that. [00:24:24] Speaker 04: There's testimony from your own witness. [00:24:27] Speaker 04: Isn't this being a little bit too hyper-technical? [00:24:31] Speaker 01: No, Your Honor, and the reason for that specifically has to do with the alternative products and newer products. [00:24:38] Speaker 01: Because what Chamberlain was pointing to with respect to the alternative products is they were saying the processor is now the processor in the wall station. [00:24:46] Speaker 01: And you have claim elements that require that processor to determine that a command was received from a local wired connection, make a determination based on that. [00:24:54] Speaker 01: Now the problem is that that wall station processor doesn't receive any commands from the wire that runs from the, at least any commands relevant to this appeal that run between the head unit and the wall station. [00:25:05] Speaker 01: It sends them, but it doesn't receive them. [00:25:07] Speaker 00: I'm having a hard time understanding what benefit they have from you make this argument that they had an intent, I guess, or had some benefit to be gained by just arguing the button. [00:25:24] Speaker 00: I'm having a hard time understanding that. [00:25:26] Speaker 01: Yeah, certainly. [00:25:28] Speaker 01: I'll explain that, Your Honor. [00:25:30] Speaker 01: The benefit to Chamberlain was making an infringement case based on the processor in the wall station of the alternative products. [00:25:39] Speaker 01: Because now you can say that the processor in the wall station [00:25:43] Speaker 01: detecting button presses. [00:25:45] Speaker 01: So if the local wire connection is the button itself rather than the wire, you can say that you've received a command from that button press and now you're making the determinations you need in elements 11E and 11F because you've received it from the button press. [00:26:00] Speaker 00: Doesn't the processor, even when it's in the head unit, it's going to receive some indication of whether the button's impressed? [00:26:09] Speaker 00: regardless of the location of the processor, whether it's in the wall unit or in the head unit. [00:26:16] Speaker 01: The processor on the head unit is, Your Honor, but for the alternative products, Chamberlain's theory was based on the processor in the wall station. [00:26:25] Speaker 00: I understand, but I don't understand why for the original products it benefits them to argue buttons over wires connected to the buttons or a combination of the buttons and the wires. [00:26:37] Speaker 00: you know, to somehow further their argument on infringement for the alternative products. [00:26:42] Speaker 00: And I'm just trying to understand that. [00:26:44] Speaker 01: Well, I think that might be correct for the original products, but I think Chamberlain wanted an exclusion order that would have kept the alternative products out as well. [00:26:57] Speaker 01: So that's why they moved to a different theory. [00:27:01] Speaker 04: But this argument that they had an incentive to suddenly and belatedly call out the button to capture the alternative products, it did carry the risk even you would concede that they might lose [00:27:12] Speaker 04: the case with respect to the original products. [00:27:15] Speaker 01: That's exactly what happened, Your Honor. [00:27:18] Speaker 04: OK. [00:27:18] Speaker 04: And I guess that just makes it harder for us, or at least me, to understand why that would have been their motivation for trying to play fast and loose with the ground rules. [00:27:30] Speaker 04: Can you help us on that? [00:27:32] Speaker 01: To be quite fair, I think the question about motivation seems to be more one for opposing counsel. [00:27:38] Speaker 01: But they did change their theory, and there was a reason for them to do that. [00:27:42] Speaker 00: But you're the ones who said that was their motivation. [00:27:45] Speaker 00: Yeah, that's right. [00:27:46] Speaker 00: So that's why we're asking you. [00:27:48] Speaker 00: Help me understand why you can surmise that that's their motivation. [00:27:55] Speaker 00: Because that that gives them an argument on the old term that gives them an argument What exactly is the argument the argument is that the buttons since the buttons are in the same place as the? [00:28:07] Speaker 00: Processor it's okay, then that the processor isn't part of the head unit [00:28:11] Speaker 01: I believe that's it, Your Honor. [00:28:14] Speaker 01: So I think the reason for the change is that because the processor in the wall station isn't getting anything over the wire, you can now say that doesn't matter because it's still receiving commands from the button. [00:28:28] Speaker 01: Now, could they have made an argument based on the processor in the head unit for the alternative products? [00:28:35] Speaker 01: I don't know. [00:28:36] Speaker 01: They chose not to at the hearing. [00:28:39] Speaker 01: And I'd also point out that Mr. Dowd said a couple of times that that movable barrier operates. [00:28:46] Speaker 00: There's local wired connection, system wired connection, network connection. [00:28:49] Speaker 00: There's a lot of different connections that buttons could have been connected to the processor, right? [00:28:55] Speaker 00: That's correct, Your Honor. [00:28:57] Speaker 00: Thank you. [00:28:58] Speaker 01: So with respect to the claim construction issue, [00:29:03] Speaker 01: The last point that we've been talking about, the processor in the wall station not receiving commands from that local wire connection. [00:29:13] Speaker 01: It gets to another point that Mr. Dowd said a couple of times. [00:29:16] Speaker 01: So Mr. Dowd said that the construction of the movable barrier operator would resolve everything. [00:29:21] Speaker 01: NORTEK disagrees with that because you still have claim elements 11E and 11F that require the processor to receive commands from the local wired connection. [00:29:35] Speaker 01: And even adopting Chamberlain's construction wouldn't fix that problem for them. [00:29:42] Speaker 01: There's still no infringement of those elements. [00:29:47] Speaker 00: So what is your view then? [00:29:49] Speaker 00: Your view is that even if we adopted the claim construction, we could only vacate and remand? [00:29:55] Speaker 00: Or is your view that we should consider those alternative arguments? [00:29:59] Speaker 01: Well, there weren't even alternative arguments made. [00:30:03] Speaker 01: Chamberlain's brief doesn't even raise enough. [00:30:06] Speaker 00: But what would be the disposition? [00:30:07] Speaker 00: That's what I'm trying to ask you. [00:30:08] Speaker 00: What are you arguing for a disposition? [00:30:11] Speaker 00: Just so I understand, were the court to say that the claim construction was incorrect, what should our disposition be according to you? [00:30:21] Speaker 01: that the case is still affirmed because Chamberlain's brief doesn't spell out a reason to reverse on elements 11E and 11F. [00:30:27] Speaker 01: Even the doctrine of equivalence argument doesn't address the local case. [00:30:33] Speaker 01: It only talks about the remote case where the user is using something like a smartphone. [00:30:36] Speaker 00: Did the court below address those elements? [00:30:39] Speaker 01: Yes, they did, Your Honor. [00:30:41] Speaker 01: I believe that was discussed in Appendix 105 through 109. [00:30:50] Speaker 01: We're discussing the DOE arguments. [00:30:54] Speaker 01: And she also pointed out that at Appendix 104, there weren't any arguments raised with respect to Element 11E. [00:31:06] Speaker 01: And with all that being said, the judge's construction, if you want to call it that, whether you want to call it instruction or application of plain normative meaning, either way it's right. [00:31:19] Speaker 01: The title of this pad is Moveable Barrier Operator and Transmitter with the barrier notification. [00:31:29] Speaker 01: And the claims consistently refer to both the movable barrier operator and the transmitter in various ways that the movable barrier operator can process what it's receiving from the transmitter based on the content. [00:31:44] Speaker 00: What is your view on whether the movable barrier operator has to be housed in one location? [00:31:51] Speaker 01: It does, Your Honor, because the movable barrier operator, our view, the movable barrier operator is a structure. [00:31:58] Speaker 01: Now, you asked about housing. [00:32:00] Speaker 01: The claim doesn't say housing, but it does refer to the mobile barrier operator as a structure rather than strictly a functional component. [00:32:06] Speaker 00: Do you know of any cases? [00:32:08] Speaker 00: Well, let me ask you this. [00:32:11] Speaker 00: You're saying because it's a structure, it has to be all in one physical place. [00:32:16] Speaker 01: That's right, Your Honor. [00:32:17] Speaker 00: And can you tell me, what is your best evidence for that? [00:32:23] Speaker 00: Is it the figures, where they show one blank box for it, or what is it? [00:32:28] Speaker 01: The figures, that would certainly be one. [00:32:30] Speaker 01: Figure one, how it shows a single box. [00:32:32] Speaker 01: I would also point to figure five, which shows the move barrier operator and the transmitter as separate components in the corresponding discussion. [00:32:45] Speaker 00: What about, you know, we've got plenty of cases that say, you know, just because there's a blank box doesn't mean there aren't multiple elements within that box. [00:32:55] Speaker 01: That's certainly true, Your Honor. [00:32:57] Speaker 01: But what the figures, in figures one and five, they're not just showing a blank box. [00:33:04] Speaker 01: They're also showing the transmitter. [00:33:06] Speaker 00: And the transmitter- So you're saying because the transmitter is in a separate box from the movable barrier operator, that means that the claim should be read to say they can't be housed in the same place or distributed. [00:33:21] Speaker 01: I think that's correct. [00:33:23] Speaker 00: Is there anything in the specification that talks about the importance of having the movable barrier operator be separate from the buttons? [00:33:34] Speaker 01: Well, the entire focus of this patent is how the movable barrier operator processes commands from a transmitter. [00:33:41] Speaker 00: Isn't it the entire focus of it is whether it's going to turn an alarm on or off depending on whether it's receiving a signal locally or whether it's receiving a signal that's not local? [00:33:55] Speaker 01: That's fair, Your Honor, but it is a signal from a transmitter. [00:33:59] Speaker 01: And the claims and specification consistently talk about the MBO and the transmitter separately. [00:34:04] Speaker 01: And to be fair, the transmitter isn't mentioned in claim 11, but it is in some of the others. [00:34:10] Speaker 00: And the transmitter is an interval unit, right? [00:34:14] Speaker 01: The wall unit would be an example of a transmitter. [00:34:16] Speaker 00: And the transmitter, you're saying that's, well, I thought the transmitter was like a remote control or your phone or something like that. [00:34:24] Speaker 00: And the wall unit was wired. [00:34:26] Speaker 00: Am I wrong? [00:34:27] Speaker 00: Is that not how your patent specification describes it? [00:34:31] Speaker 01: So the transmitter can be wired. [00:34:32] Speaker 01: And actually, in Figure 5, there's an example, 552. [00:34:36] Speaker 01: There's a line 552 that's called out as a wired transmitter. [00:34:42] Speaker 01: And I see that I'm well into my rebuttal time, Your Honor, unless there are further questions on 404. [00:34:49] Speaker ?: Yeah. [00:34:49] Speaker 04: Yeah, I do have one. [00:34:50] Speaker 04: I read to your friend on the other side from page A77 to ALJ said that the movable area operator does not encompass a wall station, which you would agree with. [00:35:02] Speaker 04: And she says that's readily discernible from the specification. [00:35:06] Speaker 04: Does she ever tell us anywhere in the record where in the specification that's readily discernible from? [00:35:14] Speaker 01: Well, yeah, she points to the figure, and she also- Figure five on the- Figure five. [00:35:23] Speaker 01: I apologize. [00:35:24] Speaker 01: Actually, the LJ pointed to figure one. [00:35:26] Speaker 01: I think figure five is a little bit more clear. [00:35:32] Speaker 00: Where does she point to Figure 1? [00:35:34] Speaker 01: That's at Appendix 76. [00:35:35] Speaker 01: I get it. [00:35:36] Speaker 04: It's her Figure 5 is Figure 1 from the patent. [00:35:39] Speaker 04: Is that right? [00:35:39] Speaker 01: That's right. [00:35:40] Speaker 04: Thank you, Your Honor. [00:35:42] Speaker 04: OK. [00:35:42] Speaker 04: But is it anything more than what you've just recited in response to Judge Stoll's questions? [00:35:49] Speaker 04: Is there something more in the specification that would make it readily discernible that the NBO does not include the wall station? [00:35:59] Speaker 01: I don't believe so, Your Honor. [00:36:01] Speaker 01: I think that was the ALJ cited the same evidence in the investigation. [00:36:05] Speaker 04: And how do you explain what happened? [00:36:07] Speaker 04: Because you had proposed a construction at the markman stage that would have limited the MBO to the head unit. [00:36:17] Speaker 04: And she said that's merely an exemplary embodiment and rejected that. [00:36:22] Speaker 04: So how do we get from the margin to the initial determination? [00:36:25] Speaker 04: They don't seem to line up. [00:36:27] Speaker 01: So I think what the ALJ was saying at the Markman, and unfortunately there were only parallel briefs. [00:36:34] Speaker 01: There wasn't a hearing, which may have resulted in some ambiguity. [00:36:36] Speaker 01: But what she said in the Markman was, it doesn't have to be a garage door or opener head unit. [00:36:43] Speaker 01: There are other embodiments. [00:36:45] Speaker 01: And at the time, the Markman was taking place. [00:36:47] Speaker 01: There actually were some other types of operators. [00:36:51] Speaker 01: There were gate operators that were accused. [00:36:53] Speaker 01: So what the ALJ was saying in the marketing hearing is it doesn't have to be that specific type of operator, but she was not saying that the operator can include anything else that you see in those figures. [00:37:08] Speaker 01: And are there any further questions in the 404? [00:37:16] Speaker 01: No. [00:37:16] Speaker 01: Moving on to the cross appeal on the 223, the fundamental problem with the commission's interpretation or construction of the term operates in the 223 patent is that they read it out of the claim. [00:37:34] Speaker 01: Claims 1 and 21 of the 223 patent require that the obstacle detector operates using a first and second energy usage. [00:37:44] Speaker 01: So operates and the energy usage are both part of the claim, and the commission [00:37:55] Speaker 01: adopted a construction, particularly an appendix 354 to 55, that collapsed those into a single element. [00:38:05] Speaker 01: And the problem with that is you don't have the word operates is no longer doing anything in that claim. [00:38:13] Speaker 01: The way that they've interpreted that, there's no such thing as not operating. [00:38:18] Speaker 01: When you say that if the claim can be completely off, [00:38:22] Speaker 01: You could never have an obstacle attacker that does not operate. [00:38:28] Speaker 01: And we cited the case law in a brief defect that when you have different claim moments, they're presumed to mean different things and convey additional meaning to the claim. [00:38:41] Speaker 01: Additionally, the commission adopted that position that operates and the first and second energy usage could mean completely off in the face of the parties agreeing that it could not mean that. [00:38:55] Speaker 01: Both experts said operates can't be completely off. [00:39:02] Speaker 01: And Chamberlain. [00:39:04] Speaker 00: Even the experts saying it can't be completely off, how much weight should that be given? [00:39:11] Speaker 01: I think that's a considerable amount of weight, because you don't see that sort of agreement very often. [00:39:17] Speaker 00: What about in the context of the specification? [00:39:19] Speaker 00: I'm just curious. [00:39:20] Speaker 00: Were they talking about in the context of the specification when they said that? [00:39:26] Speaker 01: Yes, I believe so, Your Honor. [00:39:28] Speaker 01: And I think both experts pointed to examples in the specification where the obstacle detectors weren't completely powered. [00:39:40] Speaker 01: So the actual disagreements over infringement were whether the obstacle detectors and the accused products were doing something else when they weren't fully powered. [00:39:52] Speaker 05: But there's never a time where the accused products are fully turned off. [00:39:56] Speaker 05: There's always some power, you're saying. [00:39:59] Speaker 05: There's not power that's doing anything. [00:40:01] Speaker 05: But there's power, some kind of. [00:40:04] Speaker 05: In other words, if one read the item, there would be an indication of some power in it, leaving aside whether it's doing anything or not. [00:40:13] Speaker 01: Yeah, there's a very trivial amount of power. [00:40:15] Speaker 01: Now, with respect to the technical domestic industry products, the ALJ found the Chamberlain hadn't even proved that, because the amount of power was within the measuring error of their instrument. [00:40:29] Speaker 01: But no, there was not... [00:40:34] Speaker 01: There's a very trivial amount of current trickling through the... There's current, but the device isn't doing anything. [00:40:42] Speaker 01: Right. [00:40:43] Speaker 01: And what the ALJ found, the basis for her non-infringement finding, was that there is undisputed evidence from the NORTECH technical witness, as well as its expert, that there is nothing being done, but the devices weren't operating, the obstacle detectors weren't operating on that amount of power. [00:41:01] Speaker 01: As well as just a failure proof by Chamberlain that they hadn't actually shown evidence. [00:41:05] Speaker 01: They were operating and I believe I'm I've gone well over my time. [00:41:11] Speaker 00: I don't know if there are any additional questions on Just while we're waiting for this to be set up I do want to ask you one more question Mr. Day in your view is there any information that [00:41:29] Speaker 00: in the record that remains confidential? [00:41:33] Speaker 01: The only things that we would say remain confidential at this point would be references to specific lines and functions of source code. [00:41:40] Speaker 01: Now, the briefs are not confidential. [00:41:42] Speaker 01: We agree with that. [00:41:43] Speaker 01: And the way that everything in the record that describes these things at a functional level is non-confidential. [00:41:53] Speaker 04: Only source code is confidential. [00:41:55] Speaker 01: That's correct, Your Honor. [00:41:59] Speaker 05: Yes, Your Honor. [00:42:01] Speaker 03: Thank you. [00:42:01] Speaker 03: And I appreciate the court's allowing me to appear remotely. [00:42:06] Speaker 03: May it please the court, neither party has identified any actual error in the commission's construction or any real error in its factual findings. [00:42:17] Speaker 03: Instead, both Chamberlain and Nortag are pursuing what are basically positions that are contrary to the claim language and specifications. [00:42:26] Speaker 03: Starting with the 404 patent, for example, Chamberlain wants to take the position that movable barrier operator is essentially a functional term and it can mean almost whatever it means in any given situation. [00:42:37] Speaker 03: So long as it can identify a processor and a wire somewhere in a garage door system. [00:42:45] Speaker 03: Well, this is not the way the claims are written. [00:42:48] Speaker 03: There's no reason to find the movable barrier operator to be such a broad, functional term. [00:42:52] Speaker 03: Otherwise, you would be in 112.6 land, which actually helps the commission's position. [00:42:58] Speaker 03: Plane 11, to start at the beginning, is directed to a processor. [00:43:03] Speaker 03: And that processor is part of the movable barrier operator. [00:43:06] Speaker 03: And that operator is part of the larger movable barrier system. [00:43:12] Speaker 03: Now, the movable barrier operator has various connections, [00:43:15] Speaker 03: wired connection and connections to antennas and so forth. [00:43:19] Speaker 03: Some of those connections are to local sources, some of them are to remote sources. [00:43:24] Speaker 03: But the specification makes clear, especially figures one and two, that the movable barrier operator does not include what's on the other side of, say, the local wired connection or the other connection. [00:43:38] Speaker 00: Why doesn't this violate our case law that says we're not going to read embodiments into the claims? [00:43:46] Speaker 00: There's nothing in the claim that says the movable barrier operator has to be in a particular location, right? [00:43:55] Speaker 03: Except the claims always have to be read in the context of the specification. [00:43:59] Speaker 03: And movable barrier operators is not a term found in the dictionary. [00:44:03] Speaker 03: We have to understand it in this context. [00:44:05] Speaker 03: And I also want to address the issue of this. [00:44:06] Speaker 00: But your view is that the specification makes it important that it be located in the head unit and not, I might read the spec and think that it makes it important what it does. [00:44:18] Speaker 00: The specification talking more about the functions, what it's connected to, not necessarily where it's located. [00:44:23] Speaker 00: How would you respond to that? [00:44:25] Speaker 00: Why do you think the patent specification makes its location so important? [00:44:31] Speaker 03: Well, I don't think it's location per se, [00:44:33] Speaker 03: patent is directed to both garage door systems, which has been the focus so far, but it also includes gate operator systems, which were originally accused products, but they dropped out. [00:44:45] Speaker 03: So when the judge, for example, said that the moveable barrier operator was not limited to a head unit, what she was saying was it can be a head unit in a garage door system, but it can also be something else in a gate operator system, which does not have a ceiling mounted unit. [00:45:01] Speaker 03: And if we look in the patent as well, and if we compare figures one and two, figure one shows the movable barrier operators, kind of the traditional ceiling mounted head unit that we're probably all familiar with. [00:45:14] Speaker 03: Figure two is somewhat more abstract. [00:45:17] Speaker 03: It doesn't identify the movable barrier operators being in a particular location. [00:45:22] Speaker 03: But what it does show is that there's connections to the operator, but the wall station is outside the movable barrier operator. [00:45:31] Speaker 03: wall station is connected to it by a cable as it is in the figure one and other figures that Northex Council mentioned. [00:45:40] Speaker 00: Are you familiar with anything else? [00:45:41] Speaker 00: One of the questions that Judge Stark asked was besides figures one and two, is there anything else in the patent that the judge relied on for her claim construction or that you think we should consider for the claim construction? [00:45:56] Speaker 00: Again, just talking about from the specification. [00:45:59] Speaker 03: In the specification I would look to [00:46:02] Speaker 03: Column 5, Line 36 to Column 6, Line 7, there it describes the movable barrier operator being separate from the wall station. [00:46:10] Speaker 03: It receives commands from the wall station over a wired connection. [00:46:14] Speaker 03: Well, if they're connected and they're described as being separate components, then they should be treated separately. [00:46:23] Speaker 03: Also, Column 8, Line 45 to Column 9, Line 29, [00:46:29] Speaker 03: Again, it describes the moveable barrier operator involved station between separate components. [00:46:35] Speaker 03: And to Chamberlain's point, just because a moveable barrier operator in the claim is identified as having a processor and connection doesn't mean it includes everything within the larger moveable barrier system. [00:46:57] Speaker 04: Is there anything in the specification that tells us we should not read everything that you just referenced as just exemplary embodiments? [00:47:12] Speaker 03: Well, there are monuments, I think, toward the garage door system. [00:47:15] Speaker 03: Now, if we talk about gate systems, it may be a very different system. [00:47:19] Speaker 04: I mean, even if we just limit it to garage door systems, I don't see anything in the specification that says my claims are limited in garage door systems to this type of structure or setup. [00:47:32] Speaker 04: But I'm trying to find if I'm missing something. [00:47:38] Speaker 03: I guess what would happen is if we had a huge system with a wall station and a wire running to the barrier operator, if we followed the spec, we'd say they're separate, but if we're going to pursue the term differently, we would say they're the same. [00:47:52] Speaker 03: I mean, it just gets confusing because it's the same structure at issue. [00:47:55] Speaker ?: We're not talking about different types of wall stations or different types of connections. [00:48:00] Speaker ?: It's the same setup, and it's clearly described in the spec that these are two separate things, and they're connected. [00:48:06] Speaker 03: by the local wire connection or in connecting wire, it's a case of thinking. [00:48:14] Speaker 03: The judge, I'd like to say something about her workman opinion. [00:48:19] Speaker 03: It was Chamberlain who asked her to adopt just the plain meaning, and that's what she did. [00:48:24] Speaker 03: She didn't feel needed any further explanation. [00:48:28] Speaker 03: And in her opinion, she distinguished the move of the barrier operator from the larger move of the barrier system. [00:48:36] Speaker 03: But then when she went to say the head unit is a non-limiting example, I think you have to understand there's two things at issue here. [00:48:42] Speaker 03: One, the head unit is an example of a barrier operator, and that's true for garage door systems, as I said. [00:48:49] Speaker 03: But it's a non-limiting example because the patent officer covers gate operators, as I said. [00:48:55] Speaker 03: So there's no basis to jump to the conclusion that just because it's not limited to the head unit in every case, that therefore the operator covers everything in the garage. [00:49:06] Speaker 04: And that distinction, I think, maybe makes some sense. [00:49:12] Speaker 04: But is there anything we can point to in the record to understand that that's what the ALJ was saying when she said, at Markman, it's not limiting? [00:49:21] Speaker 03: Her Markman opinion was pretty brief. [00:49:24] Speaker 03: I think she was just stating the opinions. [00:49:27] Speaker 03: I think she elaborated that later when she [00:49:31] Speaker 03: In the footnote that was referenced, she felt Chamberlain was trying to change his claim construction by then arguing that the operator, including the Wall State, she said, no, that wasn't part of the briefing for the apartment proceeding. [00:49:48] Speaker 03: I think that's a problem we have here, too, in both parties, frankly, is both of the claim terms that issue these two patents were submitted to the judge for resolution. [00:49:56] Speaker 03: She construed them. [00:49:58] Speaker 03: And then both parties down the road say, oh, no, there's additional elements that have to be part of that plan construction either. [00:50:05] Speaker 03: You have to construe the operator wall station in case the 404 or Nortex says, no, no, operate means you have to have some minimal energy level. [00:50:13] Speaker 03: Those issues weren't raised in the Markman proceeding. [00:50:17] Speaker 03: And so for purposes of review, we think they should fall under the heading of [00:50:22] Speaker 03: substantial evidence and an infringement analysis, and not give parties another bite at the time. [00:50:26] Speaker 00: But isn't it a claim construction? [00:50:28] Speaker 00: I mean, that interpretation, like I think it's at page A, 75 of the record, where the judge said that the movable barrier operator cannot include a wall station, that's a claim construction, right? [00:50:40] Speaker 00: I mean, I personally would not think that, I would think the trial judge could change [00:50:47] Speaker 00: his or her claim construction. [00:50:49] Speaker 00: I don't know why they couldn't, if they had additional thought during the course of the trial, discovered, hey, I need to further construe this. [00:50:58] Speaker 00: The question really is whether the claim construction is right or wrong. [00:51:01] Speaker 00: That's what we look at on appeal. [00:51:03] Speaker 00: But are you seriously disputing that that's a claim construction? [00:51:06] Speaker 03: I think she's clarifying what position she took, which said it's not limited to a head unit. [00:51:14] Speaker 00: That's right, but it's a claim construction, right? [00:51:17] Speaker 00: That's my question to you. [00:51:20] Speaker 03: Yeah. [00:51:21] Speaker 03: It's claim distortion, but I feel parties are trying to go around the markman proceeding and insert claim limitations that they didn't raise. [00:51:28] Speaker 00: Well, one party argued that the moveable barrier operator had to be in the head unit. [00:51:34] Speaker 00: And one party argued that that's not correct. [00:51:37] Speaker 00: And Jay considered that. [00:51:41] Speaker 00: And it's fine for her to reconsider her opinion, but I don't understand why you think that [00:51:47] Speaker 00: more had to be done to preserve the argument on the behalf of the appellant. [00:51:53] Speaker 00: Could you explain that for me? [00:51:56] Speaker 03: I'm saying that for the purpose of the review, we think it's not a subject of the novel review. [00:52:03] Speaker 03: I think it also goes to how do we apply these terms once you adopt plain and ordinary meaning? [00:52:10] Speaker 03: How do you apply it to a broad system? [00:52:12] Speaker 00: But she never did that, right? [00:52:15] Speaker 00: I mean, she interpreted the claim term and then did not consider the other issues. [00:52:21] Speaker 00: She said, I'm interpreting this term to mean that the processor can't be in the wall unit. [00:52:28] Speaker 00: It has to be in the head unit. [00:52:30] Speaker 00: And so therefore, no infringement, right? [00:52:35] Speaker 03: That's essentially correct, yes. [00:52:36] Speaker 00: OK, so it would not be for us to, if we thought the claim construction was incorrect, it would not be for us then to make a factual determination on infringement, right? [00:52:50] Speaker 03: Well, the fact is where the processor is, I mean, that's correct. [00:52:54] Speaker 03: Thank you. [00:52:54] Speaker 03: But turning to NordTech's original products, there was some discussion of this waiver. [00:53:04] Speaker 03: We would simply direct the court's attention to what Chamberlain itself said in its post hearing brief. [00:53:09] Speaker 03: There's at least half a dozen references to identifying the button as the local wired connection. [00:53:15] Speaker 03: And they're at appendix 138.41, 138.42, 138.43, 138.44, 138.48, 138.49, and 138.51. [00:53:27] Speaker 03: And they consistently say the button is the local wired connection. [00:53:32] Speaker 03: And the reason this works, and we're not just trying to be difficult, is when Chamberlain argues that the movable barrier operator extends all the way out in the wall station, then it needs a local connection to that wall station, which is the button. [00:53:50] Speaker 03: The connecting wire between the two is no longer the thing that's gonna send the closed-door command to the processor in the wall station. [00:53:59] Speaker 03: And the fact that Chamberlain didn't even mention it, [00:54:02] Speaker 03: And now we're spending an inordinate amount of time describing how the thing works. [00:54:06] Speaker 03: It shows what's not present in their own post-herent grief. [00:54:11] Speaker 03: And the commission was in its rise to rely on what they argued. [00:54:14] Speaker 03: We understood their position to be that the movable barrier operator extends all the way out to the wall station. [00:54:23] Speaker 03: And we understood their position to be that the button was the local wired connection. [00:54:28] Speaker 04: But what they meant by button has to be understood in context, doesn't it? [00:54:32] Speaker 04: The context including the expert report, the hearing, and everything that had been said before about what the button was connected to. [00:54:43] Speaker 03: Well, if we're talking about how it works, that might be true. [00:54:46] Speaker 03: But we're talking about trying to match specific components to claim limitations. [00:54:52] Speaker 03: And these claim limitations are all interrelated. [00:54:54] Speaker 03: If we change the boundary of the mobile [00:54:57] Speaker 03: barrier operator say from a head unit out to the wall station, well that changes what we might consider the local wired connection to be or what some of the other components might be. [00:55:10] Speaker 03: We're not just talking about how it works and I think that kind of gets lost in this discussion. [00:55:17] Speaker 03: Chamberlain has the obligation to identify what component you actually [00:55:27] Speaker ?: to understand what that argument is. [00:55:30] Speaker ?: We don't necessarily fill in the blanks with the briefs where we think it's convenient. [00:55:36] Speaker ?: It's not fair to the other party. [00:55:38] Speaker 03: So we take them at their word. [00:55:44] Speaker 03: Turning to the alternative products, there's no literal infringement, because in that case, the processor in the wall station performs the functions of the claim. [00:55:56] Speaker 03: And as I argued earlier, that wall station is not part of the moveable barrier operator. [00:56:06] Speaker 03: And the button to that wall station then is not the local wire connection to the moveable barrier operator when that term is properly understood because it's not connected to it. [00:56:16] Speaker 03: As far as the doctored equivalence, Chamberlain relies on the testimony of Nortex engineer Mr. Null. [00:56:23] Speaker 03: But the commission found his testimony unpersuasive on that point [00:56:27] Speaker 03: Mr. Null was essentially responding to a leading question from the attorney. [00:56:33] Speaker 03: He was asked to compare essentially a two-step programming system in the alternative product to the one-step software in the original products. [00:56:42] Speaker 03: He wasn't even asked to compare accused products to the plain language, so it wasn't even a valid equivalence analysis. [00:56:50] Speaker 03: And what's more, Mr. Null just gave a one-word response to the attorney's argument, [00:56:57] Speaker 03: affirming that this attorney statement was correct, but it's not clear he even understood what equivalence was, or as I said, it was either proper equivalence analysis. [00:57:06] Speaker 00: Thank you, Mr. Brecher. [00:57:08] Speaker 00: I think your time is up. [00:57:10] Speaker 00: If you want, you can say a conclusion sentence. [00:57:13] Speaker 03: I'm sorry. [00:57:14] Speaker 00: OK. [00:57:14] Speaker 00: Thank you very much. [00:57:16] Speaker 03: Thank you. [00:57:17] Speaker 00: Mr. Dowd, I will give you [00:57:24] Speaker 00: Oh, it looks like you have your time there. [00:57:27] Speaker 00: Go ahead. [00:57:28] Speaker 00: Thank you. [00:57:29] Speaker 02: Sorry, that was me as well. [00:57:30] Speaker 02: Apologies. [00:57:32] Speaker 00: You're out of time, but I will give you five minutes to address the cross-appeal. [00:57:37] Speaker 02: Thank you, Your Honor. [00:57:38] Speaker 02: And if I might, can I briefly respond to some of the points on the floor as well? [00:57:41] Speaker 00: Yes, five minutes. [00:57:43] Speaker 05: Thank you, Your Honor. [00:57:45] Speaker 05: One question I have. [00:57:45] Speaker 05: Mr. Day pointed out that [00:57:49] Speaker 05: Even if there was no waiver, you still have a problem with respect to claims 11E and 11F. [00:57:59] Speaker 02: I believe it was 11D and 11F, Your Honor, because those are the ones that talk about the determining and effecting. [00:58:05] Speaker 02: And there is no problem on that under the correct instruction of MBO, because if Your Honor takes a look and walks through the fact findings that the judge made, and this is at pages starting on 101, [00:58:19] Speaker 02: She walks through with respect to when the user presses the wall station button on the alternative product, the wall station processor, and then it walks through all of the things that the wall station processor does. [00:58:32] Speaker 02: And what she finds is that it determines whether it was local or remote, and then it affects closing either with an alarm or without an alarm based on that determination. [00:58:46] Speaker 02: And she summarizes. [00:58:47] Speaker 05: But what about the non-alternative products? [00:58:49] Speaker 02: For the non-alternative products, there was no dispute. [00:58:51] Speaker 02: For the original and for the private label products, she found that the head unit processor did all of those elements, and there is no dispute. [00:59:01] Speaker 02: So that means that if the claim construction is reversed, that ends the inquiry. [00:59:08] Speaker 02: And you can affirm based on the findings that she did make, including at 101 through 106. [00:59:16] Speaker 02: There was a question about what benefit would we gain from changing our argument. [00:59:20] Speaker 02: Absolutely no benefit at all. [00:59:22] Speaker 02: We would gain no benefit from that. [00:59:24] Speaker 02: It would only be a problem. [00:59:25] Speaker 00: I think the argument was somehow that you had a motivation to focus on the button, because then the button would be in the wall unit, and it would support your argument on the alternative product. [00:59:40] Speaker 00: But I think he was even in the [00:59:42] Speaker 02: uh... he's decisions but if you if you take a look back to what the claim actually says this is with respect to the limitation eleven b claim says the mobile barrier operator comprising a communication connection and one of those connections is the wireless communication system connection she has a finding that that's met so we gain nothing we don't need to argue anything about it [01:00:11] Speaker 02: to be able, we don't need to change our position. [01:00:13] Speaker 02: Because our position is that if MBO is correctly construed, that notation is met either way, either local wired or by the wireless system network. [01:00:27] Speaker 02: There is nothing in the patent that says it has to be inside of a box. [01:00:32] Speaker 02: I think your honors are very well familiar with the cases on Wired Planets, Superguide, C-Change that we cite in our [01:00:38] Speaker 02: Brief that says you can't import limitations from the claim. [01:00:42] Speaker 02: That is what was done I do want to turn to the operates limitation and in the very short amount of time that I have [01:00:52] Speaker 02: What happened here is after careful review, the commission agreed with and adopted the original construction of operates from the Markman order, applied that, and found as a result of that, there was infringement. [01:01:11] Speaker 02: That construction is supported both by the claim language in claims 1 and 21 that talks about there's simply two modes of operation that are distinguished based on energy usage. [01:01:24] Speaker 02: There's nothing in that language that says that you have to perform work or perform a function. [01:01:32] Speaker 02: And the work or function that Nortek is talking about is detecting an obstacle. [01:01:37] Speaker 02: There is nothing in the claim that says you have to perform work or do a function. [01:01:41] Speaker 02: It just has to be lower energy mode. [01:01:44] Speaker 02: And claim seven, I think, the dependent claim that depends from claim one, I think, is it's dispositive on this issue. [01:01:51] Speaker 02: It says that in the low power mode, relatively infrequent energization comprises substantially no energization. [01:02:00] Speaker 02: That means that claim one must encompass a obstacle detector with substantially no energization of its [01:02:09] Speaker 02: Obstacle sensor of the photo beam the photo beam of an obstacle detector if you think about a garage That is the thing that does the work or the function of the obstacle detector and this is saying that can be fully off So there is no requirement for works or functions in the claim very briefly [01:02:30] Speaker 02: That is also supported in the specification. [01:02:34] Speaker 02: This is at column 10, lines 13 to 16, where it specifically says, a photo-beam-based obstacle detector 12, that's the whole detector, can be configured to permit reduction of the energization cycle and or complete powering down. [01:02:50] Speaker 02: So the construction that the commission applied is fully supported on the intrinsic record, and we would submit that it should be affirmed. [01:02:59] Speaker 02: unless there are other questions. [01:03:01] Speaker 00: Thank you. [01:03:07] Speaker 01: Mr. Day, I will give you three minutes. [01:03:12] Speaker 01: Thank you, Your Honor. [01:03:13] Speaker 01: So with respect to the original Markman order, what the original Markman order did not say was that operates could be off or that it was collapsed into energy usage such that those were the same limitation without operates giving any additional meaning to the claim. [01:03:29] Speaker 01: Additionally, with respect to claim seven, I'd also point the court to what Chamberlain's own expert said at Appendix 1675, that substantially no-energization can't be completely off. [01:03:45] Speaker 01: That was their own expert's testimony. [01:03:47] Speaker 01: Additionally, with respect to claim seven, claim seven talks about no energization of an obstacle sensor. [01:03:53] Speaker 01: It doesn't talk about no energization of an obstacle detector. [01:03:56] Speaker 01: Now Chamberlain's entire infringement theory during the case was that the obstacle detector was doing something else. [01:04:05] Speaker 01: There's an asleep mode without the sensor itself being on. [01:04:13] Speaker 01: So they made that distinction. [01:04:15] Speaker 01: And just to be clear, what the original Markman order did say, now it did say that the obstacle detector didn't have to perform its primary function. [01:04:27] Speaker 01: And we're not arguing that on appeal. [01:04:29] Speaker 01: So Chamberlain took the position in [01:04:33] Speaker 01: in the hearing that it could be something other than its primary function, specifically that it was in a low-powered sleep mode that would allow it to wake up really quickly. [01:04:43] Speaker 01: The ALJ just found that they failed to prove that. [01:04:46] Speaker 01: But the ALJ was correct in applying the plain and ordinary meaning of the word operates. [01:04:51] Speaker 01: It has to operate. [01:04:53] Speaker 01: Operate cannot mean not operate. [01:04:58] Speaker 01: With respect to the the specification also doesn't say that operate can be not operate and and mr. Dowd pointed to column 10 now column 10 it refers to the accommodating a reduced energy consumption mode of operation Further down in column 10 in the claim that reduced energy mode of consumption operation is associated with the MBO itself and [01:05:22] Speaker 01: not with the obstacle detector. [01:05:24] Speaker 01: And finally, at the end of that passage that Mr. Dodd pointed to, the options for the obstacle detector, it can be completely powered down, or it can be put in a reduced operating mode. [01:05:40] Speaker 01: But only one of those does it still operate, and that's what the claim requires. [01:05:47] Speaker 01: So unless there are any further questions from the court. [01:05:50] Speaker ?: No. [01:05:51] Speaker 00: Thank you. [01:05:52] Speaker 00: The case is submitted. [01:05:54] Speaker 00: We thank both counsel for their argument.