[00:00:00] Speaker 01:
So we will hear argument next in number 21-2239, ESIF against Pujen.

[00:00:10] Speaker 01:
Mr. Hill.

[00:00:15] Speaker 00:
Good morning.

[00:00:16] Speaker 00:
May it please the court.

[00:00:18] Speaker 00:
My name is Gordon Hill.

[00:00:19] Speaker 00:
I represent the appellant, ESIP in this case.

[00:00:23] Speaker 00:
And ESIP asserts that this case is actually very simple.

[00:00:29] Speaker 00:
The intrinsic evidence.

[00:00:31] Speaker 00:
answers any and all questions with respect to the claims that are asserted.

[00:00:37] Speaker 00:
And the district court improperly relied on extrinsic evidence, especially with respect to claim construction, which led to improper claim constructions, which naturally led to incorrect infringement analyses.

[00:00:55] Speaker 00:
ESIP also submitted to this court

[00:00:59] Speaker 00:
the district court's ruling that the underlying case was found to be exceptional.

[00:01:06] Speaker 00:
One of the reasons ESIP did this was because that ruling shows many legal and factual errors that the district court committed.

[00:01:13] Speaker 01:
Maybe you should get to the specific errors on which everything turns.

[00:01:17] Speaker 00:
OK.

[00:01:19] Speaker 00:
One of the specific errors is that the district court required mathematical precision with respect to claim construction and with respect to infringement.

[00:01:28] Speaker 00:
For example, in claim construction, one of the limitations called the eductor limitation recites that there is a distance between the nozzle and an aperture.

[00:01:42] Speaker 00:
The district court required that that aperture be defined precisely.

[00:01:47] Speaker 00:
It had to be defined by its shape and exactly how it would be measured, even though the claim language did not require that specificity.

[00:01:58] Speaker 00:
Another error that was made was the district court conflated the cavity that is in the written description of the patent with the aperture that is recited in the claim.

[00:02:15] Speaker 00:
One of the best examples of this is in defendant's response brief on page 3.

[00:02:21] Speaker 00:
There is a picture of the eductor configuration

[00:02:26] Speaker 00:
as found in Figure 9 of the patent.

[00:02:35] Speaker 00:
Defendants have shaded a portion of that yellow, and they have defined that as the aperture.

[00:02:43] Speaker 03:
It's not in our briefs.

[00:02:45] Speaker 03:
It's not colored.

[00:02:46] Speaker 03:
I don't have my electronic version.

[00:02:48] Speaker 01:
Yeah, one of the things both parties should know, when these things get printed and you don't use a color printer, the color is invisible.

[00:03:07] Speaker 02:
But I know what you're talking about.

[00:03:14] Speaker 00:
There's a small portion right in the middle that's shaded as yellow.

[00:03:19] Speaker 03:
And your argument is that they invented that as an individual structure when it's actually just part of chamber 116.

[00:03:27] Speaker 00:
That is correct.

[00:03:28] Speaker 03:
And that goes to your argument that it's supposedly two-dimensional instead of three-dimensional.

[00:03:33] Speaker 00:
Well, that yellow portion is part of it.

[00:03:36] Speaker 03:
What happens if I agree with the district court that whatever the 111,

[00:03:46] Speaker 03:
119 is that it's three-dimensional.

[00:03:50] Speaker 03:
It's a structure, right?

[00:03:52] Speaker 03:
The aperture is a structure.

[00:03:54] Speaker 00:
Well, the aperture is a region of empty space.

[00:03:57] Speaker 00:
It's a hole.

[00:04:01] Speaker 01:
Well, the word aperture... It has depth as well.

[00:04:05] Speaker 01:
So it has an entry surface and an exit surface, and there's some distance between the two things.

[00:04:11] Speaker 00:
Well, specifically with respect to exit orifice 119, I would say that that's a two-dimensional opening.

[00:04:24] Speaker 01:
Doesn't the spec refer to orifice 119 and chamber 119?

[00:04:29] Speaker 00:
It does, but the part where it refers to chamber 119.

[00:04:32] Speaker 01:
It literally says this number applies to both those things.

[00:04:36] Speaker 01:
The chamber is more than a plane.

[00:04:38] Speaker 00:
I would say that the part where the specification refers to chamber 119 is actually a typographical error.

[00:04:46] Speaker 00:
That can be found on appendix page 45 within column 10 of the patent.

[00:04:53] Speaker 00:
If we look at that,

[00:04:54] Speaker 00:
It does say tending to evacuate the chamber, and it does say 119.

[00:04:59] Speaker 00:
But then the next sentence is, thus the reduced pressure in the chamber, 116, draws liquid through the siphon tube 96 from the reservoir.

[00:05:10] Speaker 00:
And so that reference to 119.

[00:05:12] Speaker 00:
When you're in column 10?

[00:05:15] Speaker 00:
I'm on column 10.

[00:05:17] Speaker 00:
Line?

[00:05:18] Speaker 00:
Line 39, 39 and 40.

[00:05:23] Speaker 00:
And that's on appendix page 45.

[00:05:25] Speaker 03:
Where it is pressure in the chamber draws liquid in the siphon reservoir.

[00:05:34] Speaker 03:
Why is that pertinent?

[00:05:36] Speaker 00:
Every other reference to 119 talks about the exit orifice.

[00:05:40] Speaker 00:
This is the only reference that says chamber 119.

[00:05:43] Speaker 01:
Am I right that the only reference in the spec to aperture is column 3, line 36?

[00:05:53] Speaker 00:
No, there are numerous references to apertures in the specification.

[00:05:59] Speaker 03:
With respect to the... Yeah, in addition to the aperture that we're talking about, 119, there are 26 references to aperture in the written description, all of which describe three-dimensional structures.

[00:06:13] Speaker 00:
I'm not sure all of them describe three-dimensional structures, but a lot of them do.

[00:06:18] Speaker 03:
However, with respect to exit orifice 119... Well, the district court used the intrinsic evidence and the spec to create the answer to whether it's two-dimensional or three-dimensional.

[00:06:35] Speaker 03:
With respect to claim construction... It says going in two.

[00:06:37] Speaker 03:
It says that the force from the nozzle is going in two, not 119.

[00:06:44] Speaker 03:
And based on that, as I understand it, the district court said that's the tell over me, that's a three-dimensional structure.

[00:06:54] Speaker 00:
Right.

[00:06:55] Speaker 03:
You were arguing that the intrinsic evidence doesn't solve this problem.

[00:06:59] Speaker 03:
The district court used the intrinsic evidence to arrive at the three dimensions.

[00:07:03] Speaker 00:
Well, I think the proper application of the intrinsic evidence does solve this problem.

[00:07:08] Speaker 03:
But don't you have to tell us why the district court committed error in claim construction when it used the word into, among other things, to say the structure is three-dimensional?

[00:07:20] Speaker 00:
It's not so much the use of the word into.

[00:07:22] Speaker 00:
It's the fact that the description in the written specification describes the exit orifice in terms of a two-dimensional opening.

[00:07:32] Speaker 03:
Where?

[00:07:33] Speaker 00:
Right here in column 10.

[00:07:35] Speaker 03:
I didn't see anything about the planer.

[00:07:41] Speaker 00:
Based on the context of this.

[00:07:43] Speaker 03:
Where does it say, in essence, that 119 has to be two dimensional?

[00:07:48] Speaker 00:
It doesn't say 119 has to be two dimensional.

[00:07:51] Speaker 00:
But from the context, what we have here is that

[00:07:55] Speaker 00:
Cavity 116 is defined by three openings.

[00:08:00] Speaker 00:
One of them is the nozzle orifice 118, one of them is the siphon 96, and one of them is the exit orifice 119.

[00:08:10] Speaker 00:
No one disputes that nozzle orifice 118 is a two-dimensional planar opening at the end of the nozzle that's pictured there.

[00:08:22] Speaker 00:
Again, referring to the picture with the yellow shading, the district court and the defendants say that that yellow shaded part is the aperture.

[00:08:34] Speaker 00:
But from the context of this description, what we can see is that the cavity is defined by those three openings.

[00:08:41] Speaker 00:
So everything between those three openings is the cavity.

[00:08:45] Speaker 03:
Where was there a concession that the nozzle opening is two-dimensional?

[00:08:51] Speaker 03:
You just said everybody agreed.

[00:08:52] Speaker 03:
I didn't see that anywhere.

[00:08:56] Speaker 03:
No one has disputed that the nozzle orifice... Whether the nozzle is two-dimensional, three-dimensional hasn't been in suit, correct?

[00:09:03] Speaker 00:
No, because everyone understood that the nozzle orifice is at the end of the nozzle.

[00:09:09] Speaker 00:
It's that point at the end of the nozzle where the measurement from the nozzle to the aperture starts.

[00:09:14] Speaker 03:
That's where the highly compressed air comes out.

[00:09:16] Speaker 00:
Yes.

[00:09:17] Speaker 03:
Right.

[00:09:18] Speaker 00:
That nozzle orifice is that point at the end of the nozzle.

[00:09:22] Speaker 03:
And we simply don't know whether it is totally planar or whether it has any depth at all.

[00:09:26] Speaker 03:
But the notion that highly compressed air blasts up against a plane and somehow manages to emerge through a hole seems a little harder to believe.

[00:09:39] Speaker 00:
Well, the air goes through an orifice.

[00:09:43] Speaker 00:
The aperture, the planar opening is.

[00:09:45] Speaker 03:
The air comes out of the mouth of the nozzle.

[00:09:48] Speaker 00:
Exactly.

[00:09:50] Speaker 00:
And that mouth of the nozzle is nozzle orifice 118.

[00:09:54] Speaker 03:
It's just the opening part.

[00:09:55] Speaker 03:
Right.

[00:09:56] Speaker 03:
And we don't know whether that structure where the air is coming out is two-dimensional or three-dimensional, because it wasn't ensued.

[00:10:03] Speaker 00:
Well, it's considered two-dimensional, because it's also the nozzle portion of it has its own identification number.

[00:10:16] Speaker 00:
So the context of the specification

[00:10:18] Speaker 00:
makes it clear that the nozzle is one component, the nozzle orifice is something else.

[00:10:26] Speaker 00:
And the nozzle orifice just refers to that two-dimensional planar opening.

[00:10:37] Speaker 02:
Just looking at the claim language, should we take anything from the fact that it says into an aperture?

[00:10:44] Speaker 02:
Do you know that the perspective we should be thinking about in terms of measuring this space is the space from where you go into the aperture and then from the location of the end of the nozzle?

[00:11:01] Speaker 00:
I think the district court reads too much into that language.

[00:11:05] Speaker 02:
The nozzle has- I guess your argument is we should be thinking of only the most

[00:11:13] Speaker 02:
distal plane of that aperture as being the focal point of doing this measurement in this plane.

[00:11:23] Speaker 02:
Is that your point?

[00:11:25] Speaker 00:
Yes, the point to the context of the specification makes it clear that that distal end is what's called the exit orifice.

[00:11:33] Speaker 00:
The mixing of the air and the liquid under the context of the specification occurs in the cavity portion, not the aperture.

[00:11:42] Speaker 00:
In fact,

[00:11:43] Speaker 00:
This section in column 10 that describes the eductor configuration does not use the term aperture with respect to that part of the description.

[00:11:54] Speaker 03:
Mixing takes place in 116.

[00:11:56] Speaker 00:
Exactly.

[00:11:57] Speaker 03:
And that's defined as an aperture.

[00:11:59] Speaker 00:
No, 116 is defined as a cavity.

[00:12:02] Speaker 03:
It's defined also as an aperture, isn't it?

[00:12:05] Speaker 00:
I don't believe so.

[00:12:06] Speaker 00:
It's defined as a cavity.

[00:12:08] Speaker 00:
It is sometimes defined as a chamber in line 40 there in column 10.

[00:12:14] Speaker 00:
But it is not defined as an aperture.

[00:12:17] Speaker 00:
Exit orifice 119, technically, is not defined as an aperture either.

[00:12:23] Speaker 00:
It's an orifice.

[00:12:24] Speaker 00:
And that distinction is to show that it is a two-dimensional.

[00:12:29] Speaker 03:
Well, it's defined as an aperture by the claim.

[00:12:33] Speaker 03:
The claim calls it an aperture.

[00:12:37] Speaker 00:
The claim uses a broader term, aperture.

[00:12:39] Speaker 00:
That is correct.

[00:12:41] Speaker 00:
But the detailed description defines that as an exit orifice.

[00:12:48] Speaker 00:
The parties agree that the exit orifice is basically the reference to the recited aperture in the claim.

[00:12:58] Speaker 00:
And this is very common in patents.

[00:13:00] Speaker 00:
The detailed description provides a detailed description of one embodiment.

[00:13:06] Speaker 00:
And then the claims recite language to broaden that description so that it can cover more than one embodiment.

[00:13:14] Speaker 00:
The detailed description in column 10 talks about one embodiment of an inductor.

[00:13:20] Speaker 00:
And the exit orifice in that is the end of that cavity.

[00:13:25] Speaker 00:
It's the end of that chamber.

[00:13:27] Speaker 00:
Again, from the context here, we see that the mixing of the liquid and the air occur in the cavity.

[00:13:35] Speaker 00:
And that mixture is then what exits the exit orifice.

[00:13:39] Speaker 00:
And from the picture, it's clear that a lot of mixing happens in that yellow shaded area.

[00:13:45] Speaker 00:
The air and the liquid, that's essentially where the air and the liquid meet in that yellow shaded area.

[00:13:52] Speaker 00:
So that can't be the aperture.

[00:13:53] Speaker 00:
That's got to be the cavity.

[00:13:56] Speaker 02:
That's the only place where the cavity is?

[00:14:00] Speaker 02:
That little yellow piece?

[00:14:01] Speaker 00:
No.

[00:14:02] Speaker 00:
The cavity, again, from the context of the specification, it's defined by those three openings.

[00:14:08] Speaker 00:
The nozzle.

[00:14:10] Speaker 02:
There's other space in there.

[00:14:12] Speaker 00:
There is other space in there, yes.

[00:14:13] Speaker 00:
There's other space where the air comes in.

[00:14:16] Speaker 00:
There's other space specifically in figure nine under the nozzle.

[00:14:22] Speaker 00:
There's a space where the liquid is drawn into the cavity.

[00:14:26] Speaker 00:
But then that mixing happens in what defendants and the court have called the aperture.

[00:14:32] Speaker 00:
And that is a mistake.

[00:14:35] Speaker 01:
You have used almost your entire time.

[00:14:37] Speaker 00:
I have.

[00:14:38] Speaker 01:
Just to save the remainder, I'll add a little bit more.

[00:14:41] Speaker 00:
I will save what I can for rebuttal.

[00:14:43] Speaker 04:
Thank you, Your Honor.

[00:14:47] Speaker 04:
Your Honors, may it please the court, my name is Elliot Hales.

[00:14:49] Speaker 04:
I represent the Pugina Pellies in this case.

[00:14:53] Speaker 04:
In our view, this appeal, similar to my friend in argument, we think is pretty simple, that the two most important issues here are whether the court construed the spacing limitation correctly and applied it correctly in issuing summary judgment, and whether it correctly construed the anchoring limitations and correctly applied those in summary judgment.

[00:15:12] Speaker 01:
Each one of those independently supports the summary judgment in full, right?

[00:15:16] Speaker 04:
That's right, Judge Toronto.

[00:15:18] Speaker 01:
As for the other two... The duty cycle does not bear on Claim 14.

[00:15:22] Speaker 04:
That's right.

[00:15:24] Speaker 04:
And the term droplets well construed is not case dispositive here.

[00:15:27] Speaker 02:
And then the appellant raised the fourth claim construction argument, right?

[00:15:31] Speaker 04:
For the droplets terms?

[00:15:32] Speaker 02:
Yes.

[00:15:33] Speaker 04:
That's right.

[00:15:33] Speaker 02:
And we don't need to address that.

[00:15:36] Speaker 04:
That's right.

[00:15:36] Speaker 04:
If either the spacing limitation or anchoring limitations was correctly construed and correctly applied in summary judgment, then those would both be sufficient to dispose of this appeal and need not be reached in any disposition of this appeal.

[00:15:48] Speaker 04:
Returning to the spacing limitation, the salient issue discussed by my friend in argument here is whether an aperture is correctly considered to have three dimensions.

[00:15:56] Speaker 04:
We don't think that there is any dispute on this issue, either in argument today or in the record.

[00:16:02] Speaker 04:
The reason for this is that the entire point of construing this term was because the parties had differing views of the point in this aperture at which a party should measure to determine if the aperture is appropriately spaced away from the nozzle.

[00:16:16] Speaker 04:
Namely, appellees viewed you should measure to the front side of this aperture and appellants believed you should measure to the back side of the aperture from the nozzle.

[00:16:24] Speaker 04:
because those two measures would yield different distances that needed to be construed so that the jury wasn't determining the scope of claim language, and so it was construed.

[00:16:34] Speaker 04:
The very nature of the dispute reveals that apertures were conceived by the parties to have three dimensions.

[00:16:39] Speaker 04:
If the front and back of a two-dimensional plane are in the same place, they would have yielded the same measure, and there was no reason to construe this term in the first place.

[00:16:46] Speaker 03:
Why is that so?

[00:16:48] Speaker 03:
His argument is that focusing on the yellow piece

[00:16:52] Speaker 03:
119 as an independent structure is wrong.

[00:16:57] Speaker 03:
Basically 119 is simply a part of this chamber, 116, and that it's a unitary structure and that the aperture can therefore refer, aperture 119 can just as well refer to the exit side of the structure as opposed to the entry side.

[00:17:16] Speaker 04:
We think there are several problems.

[00:17:17] Speaker 03:
Because they're one and the same if it's two-dimensional.

[00:17:20] Speaker 04:
Sure, we think there are several problems with that argument.

[00:17:22] Speaker 04:
The first is 116.

[00:17:24] Speaker 04:
The lead line leads to the chamber itself.

[00:17:26] Speaker 04:
The lead line for 119, the exit orifice, leads to the horizontal tunnel that leads away from chamber 116 because they are individually demarcated, individually named.

[00:17:38] Speaker 04:
We think there are separate structures.

[00:17:40] Speaker 03:
Well, are they indeed individually marked?

[00:17:43] Speaker 03:
Part of their argument is that you've created something in the drawing.

[00:17:49] Speaker 01:
Just to be clear, when you say the 119 squiggly line leads into the inside of that yellow chamber, how in the world would I see that?

[00:17:59] Speaker 01:
I mean, you blew it up, and then you blew it up some more, and then you blew it up some more.

[00:18:04] Speaker 01:
It appears that there's a little bit of ink that moves across that left face.

[00:18:12] Speaker 01:
But that's not apparent from looking at the patent without a microscope or a magnifying glass.

[00:18:21] Speaker 04:
We just zoomed in using the ordinary PDF tools available to any person of skill, and they aren't interested in where the lead line terminates.

[00:18:27] Speaker 01:
Right, but maybe that's an artifact of the printing.

[00:18:30] Speaker 04:
Let's assume that for the sake of this argument.

[00:18:32] Speaker 04:
Let's return then to the issue, is an aperture correctly understood in the arc to be three-dimensional?

[00:18:37] Speaker 04:
The evidence in the record is conclusive on this point.

[00:18:40] Speaker 04:
First, as the court has observed, the term aperture is repeatedly used in this patent and almost uniformly used to describe elements having three dimensions.

[00:18:48] Speaker 04:
This is evidenced by element 25B, which is described as an aperture in a grommet, allowing the electrical cables to enter the device.

[00:18:55] Speaker 04:
When appellant's expert was presented with element 25B and the corresponding specification disclosures, he agreed.

[00:19:01] Speaker 04:
Which is where?

[00:19:02] Speaker 04:
That is in column two.

[00:19:07] Speaker 04:
on appendix page 43.

[00:19:08] Speaker 04:
42?

[00:19:11] Speaker 04:
Let me get the precise column.

[00:19:14] Speaker 01:
You said column 2?

[00:19:21] Speaker 01:
You said it was element, what, 25?

[00:19:22] Speaker 01:
25 D, you said.

[00:19:24] Speaker 04:
25 B is in boy.

[00:19:27] Speaker 01:
B is in boy.

[00:19:28] Speaker 01:
And where is it?

[00:19:30] Speaker 01:
I see.

[00:19:31] Speaker 01:
Line 43.

[00:19:34] Speaker 01:
Column 2.

[00:19:37] Speaker 04:
No.

[00:19:38] Speaker 01:
No, column 5, I'm sorry.

[00:19:41] Speaker 04:
That's right.

[00:19:41] Speaker 04:
Column 5, line 43.

[00:19:44] Speaker 04:
It's named as aperture 25b.

[00:19:45] Speaker 04:
If the court goes and looks at figure 2, element 25b is shown there.

[00:19:55] Speaker 04:
That element is clearly a three-dimensional tunnel running through that grommet piece.

[00:20:01] Speaker 04:
And when this was shown to appellants experts in the course of his deposition, he agreed that the patentee here has described this aperture and that this aperture is shown as having three dimensions.

[00:20:11] Speaker 04:
And he agrees that this aperture, according to the patentee, is intended to have three dimensions and is depicted as such.

[00:20:17] Speaker 04:
So the idea that an aperture has three dimensions is accepted and it's accepted as specific to the intrinsic record here in this patent specification.

[00:20:30] Speaker 03:
When you do the measurement and interpret where you're measuring to,

[00:20:34] Speaker 03:
from your expert, you end up with a distance lesser than the patent wanted to have.

[00:20:39] Speaker 03:
That's right.

[00:20:40] Speaker 03:
Right.

[00:20:40] Speaker 03:
Meaning that you're less efficient than the, the, the doctor is less efficient than the patent they wanted to have.

[00:20:47] Speaker 03:
You have to have some room when the air comes out of the nozzle under pressure, and then the Venturi effect sucks the, the,

[00:20:58] Speaker 03:
whatever it is, aroma stuff out of the canister and then mixes it up.

[00:21:01] Speaker 03:
There has to be enough room to mix it up in effectively to get it out.

[00:21:05] Speaker 03:
That's the reason for having the distance, because if the nozzle was flat up against the aperture, right?

[00:21:09] Speaker 04:
Right.

[00:21:09] Speaker 03:
It wouldn't work.

[00:21:10] Speaker 04:
Right, there'd be no negative pressure.

[00:21:12] Speaker 03:
You know, it would just also just bounce and you wouldn't have effective mixing.

[00:21:16] Speaker 04:
Right.

[00:21:16] Speaker 03:
So under your interpretation of the claim and your measurements, the adductor is much less efficient.

[00:21:22] Speaker 03:
It doesn't have enough space to work.

[00:21:25] Speaker 03:
It's against the patent.

[00:21:27] Speaker 03:
The patent required a space of X, distance between the nozzle and the exit, in order to have effective induction, right?

[00:21:37] Speaker 04:
I think your question assumes that the range here, the 1 to 10 effective diameters of the nozzle, has claimed the only effective ranges here.

[00:21:45] Speaker 03:
The fact that we have a functioning inductor shows that the claim... Well, he went to all the trouble to say, you know, the distance between the nozzle and the exit is very, very important to the way these things work.

[00:21:56] Speaker 03:
And it wants to be a distance of between x and y, meaning he needs at least x to y. To make it work, it's got to be at least a lower number to the larger number, right?

[00:22:08] Speaker 04:
I don't think the argument is in order to work it has to be 1 to 10, but rather my invention claims the range of 1 to 10, right?

[00:22:14] Speaker 04:
There may well be functioning inductors that operate outside of the range of 1 effective diameter away and 10 effective diameters away, but that's not their invention, or at least it's not within the scope of their claims.

[00:22:23] Speaker 03:
Your other point would be this argument wasn't made below.

[00:22:25] Speaker 04:
Right.

[00:22:25] Speaker 04:
Right.

[00:22:26] Speaker 04:
That's correct.

[00:22:27] Speaker 04:
And it's inconsistent with arguments made elsewhere.

[00:22:29] Speaker 04:
We've seen argument in the briefing at page 6.

[00:22:31] Speaker 04:
There can be no gap between the nozzle and the aperture for the product to function.

[00:22:35] Speaker 04:
But then we see at appendix sites 384, 417, and 1138.

[00:22:40] Speaker 03:
Assume for purposes of argument that I agree with you that the district court did not commit error in determining that the exit orifice is a three-dimensional structure.

[00:22:50] Speaker 03:
So we have measurement.

[00:22:51] Speaker 03:
And I assume, for purposes of argument, I agree that the district court picked the entry place into the exit for us as being the demarcation point for the measurement.

[00:23:01] Speaker 03:
I don't understand what happened in terms of the infringement analysis under that complaint construction.

[00:23:09] Speaker 03:
I'm looking, I was trying, your expert made measurements.

[00:23:13] Speaker 03:
Right.

[00:23:14] Speaker 03:
And he measured the mouth of the nozzle, came up with a number, measured the distance, came up with a number that shows less than to be within the range of the claim.

[00:23:23] Speaker 03:
Right.

[00:23:23] Speaker 03:
I don't understand the evidence that was put in by your adversary.

[00:23:28] Speaker 04:
Well, to that point, there was no evidence put in by my adversary, in our view.

[00:23:33] Speaker 03:
This cut-off device, that was put in evidence.

[00:23:38] Speaker 03:
Wasn't that in his... It's all done on paper.

[00:23:41] Speaker 03:
There was no trial on infringement, right?

[00:23:44] Speaker 04:
There are five pages, or rather five places in the record that my friend in argument points to as sufficient proof for a reasonable jury to rely on in finding infringement.

[00:23:53] Speaker 04:
The first two are the statements in the infringement contention saying

[00:23:58] Speaker 04:
The aperture is 4 to 6 effective diameters away.

[00:24:00] Speaker 03:
Well, his expert's saying measurements don't count, and I don't have to look at it.

[00:24:03] Speaker 03:
You can just look at it, and you can tell it.

[00:24:05] Speaker 03:
I'm going to exclude all that.

[00:24:06] Speaker 03:
What I'm really looking at are his cutouts and trying to understand whether there was a tribal issue of fact.

[00:24:12] Speaker 03:
He put that information in front of the judge, and he said, here's my nozzle.

[00:24:18] Speaker 03:
Think in the drawings he pointed to the nozzle what I couldn't find was where in that Array of information and the pictures I couldn't find out where the exit orifice was right that that image is found at appendix page 5 that's found in the court's Motion for summary judgment disposition the the specific image.

[00:24:38] Speaker 03:
I think you're talking about the page of that appendix page 5 page 5

[00:24:45] Speaker 04:
This is the court's summary judgment disposition of the case, and it has excerpted one of the pages to which Helen points as sufficient proof of its infringement.

[00:24:55] Speaker 04:
The problem with this image is that there is no accompanying testimony that I used this ruler to measure the nozzle, the nozzle being this diameter.

[00:25:07] Speaker 02:
Where is the alleged aperture?

[00:25:12] Speaker 04:
That's a good question.

[00:25:13] Speaker 04:
If you see the image below, you see that purple kind of archway.

[00:25:16] Speaker 01:
We don't have colors.

[00:25:17] Speaker 04:
I'm sorry.

[00:25:18] Speaker 04:
I don't know what purple is.

[00:25:18] Speaker 04:
Do you see the component that exists in the image below that kind of descends from above and has an archway at the bottom of it?

[00:25:27] Speaker 04:
Mm-hmm.

[00:25:27] Speaker 04:
That is alleged to be the aperture top and to kind of define the top of this aperture.

[00:25:32] Speaker 04:
Is the aperture the arch?

[00:25:35] Speaker 03:
It is the arch.

[00:25:36] Speaker 03:
It's how we picture 21.

[00:25:39] Speaker 04:
Yes, there are two images on page five, appendix page five.

[00:25:43] Speaker 03:
Yeah, there are two images on page five.

[00:25:45] Speaker 03:
You have a color version.

[00:25:46] Speaker 03:
Yeah, I have a color version.

[00:25:48] Speaker 03:
Well, I copied it from the internet, from the record.

[00:25:55] Speaker 03:
So I don't see anything purple.

[00:25:59] Speaker 04:
On appendix page five.

[00:26:00] Speaker 03:
Yeah, on page 5, you're looking at which one of the two pictures, the top or the bottom?

[00:26:05] Speaker 04:
My apologies.

[00:26:05] Speaker 04:
I get color confused sometimes.

[00:26:06] Speaker 04:
This component which descends from the top of the image in page 5 has an archway at the bottom of it.

[00:26:13] Speaker 03:
Page 5 has two pictures on it.

[00:26:15] Speaker 04:
Which picture are we talking about?

[00:26:16] Speaker 04:
The lower one.

[00:26:17] Speaker 03:
Yeah, that's what I was asking.

[00:26:18] Speaker 03:
OK, we're at the lower one.

[00:26:19] Speaker 03:
And here he shows where he thinks the nozzle is.

[00:26:22] Speaker 03:
And then he's got the aperture space and something called the aperture side.

[00:26:28] Speaker 03:
Right.

[00:26:28] Speaker 03:
And something called the separator or separating chamber.

[00:26:31] Speaker 03:
OK, I know that.

[00:26:31] Speaker 02:
All these labels are blurry.

[00:26:33] Speaker 01:
Yeah, I have no ability to read the labels.

[00:26:36] Speaker 04:
And we have the same issue in calling this sufficient proof for a reasonable jury.

[00:26:42] Speaker 03:
I can read on what is in the record in this case.

[00:26:46] Speaker 03:
It's got what was printed in the brief and what's printed in this thing.

[00:26:53] Speaker 03:
If you go to look at the briefs that were filed online,

[00:26:57] Speaker 03:
That's where the color shows up.

[00:27:00] Speaker 04:
OK.

[00:27:00] Speaker 04:
Well, at any resource in which we look at it.

[00:27:03] Speaker 03:
And so I see a nozzle, and I see an alleged aperture space, right?

[00:27:09] Speaker 03:
And I see he's got a measuring device that I use at home, my ruler.

[00:27:17] Speaker 03:
And was there any argument based on producing a number?

[00:27:22] Speaker 03:
Because the patent is calling about specific numerical distances that need to be met.

[00:27:27] Speaker 04:
The short answer is no.

[00:27:28] Speaker 04:
Their expert has never used this image, or this ruler, or this device, so far as we can tell anywhere in the record, to have performed an infringement analysis.

[00:27:36] Speaker 04:
Rather, this was accompanying the infringement contention.

[00:27:38] Speaker 04:
And so far as we understand, those were submitted and conducted by the attorneys themselves.

[00:27:42] Speaker 04:
So as for whether this constitutes evidence of infringement, we think the answer is no.

[00:27:50] Speaker 03:
taken by the court and put into the court's opinion.

[00:27:53] Speaker 03:
So the court didn't say it's not evidence.

[00:27:56] Speaker 04:
The court didn't say it's not evidence, but it said it's not sufficient evidence for a reasonable jury to find infringement.

[00:28:02] Speaker 03:
Well, that's what I'm trying to get at, sir.

[00:28:04] Speaker 03:
I simply don't know when the other side ever made any measurements.

[00:28:08] Speaker 03:
I guess you say they didn't.

[00:28:10] Speaker 04:
That there is no testimony that any person has ever performed a measurement on appellant's side of the nozzle diameter or the distance from the nozzle to where the aperture structure should be.

[00:28:20] Speaker 03:
I suppose your argument would be, at the very least, in order to get this case to the jury, once they put the ruler up against the distance between the nozzle and the so-called aperture space, there'd have to be a number associated with the aperture space.

[00:28:37] Speaker 04:
Somebody would need to be able to testify to the jury.

[00:28:39] Speaker 03:
What am I just saying?

[00:28:41] Speaker 03:
At the least, you'd need to find that in the record.

[00:28:43] Speaker 04:
Right.

[00:28:43] Speaker 04:
Right.

[00:28:44] Speaker 04:
We've had no opportunity to plumb the merits of the methodology performed, or who performed it, how they performed it, whether this is reliable evidence that a jury can say this expert has provided sufficient rule.

[00:28:55] Speaker 04:
Where do you think the aperture is in your device?

[00:28:59] Speaker 04:
So in the infringement contention will represent to you what the appellants have said.

[00:29:03] Speaker 02:
No, I want to know what you think where the aperture is.

[00:29:07] Speaker 02:
There has to be an exit orifice somewhere, right?

[00:29:09] Speaker 04:
To the extent an aperture exists, it's

[00:29:12] Speaker 04:
the area inside the arcuate flange that exists beneath the arch in between the sidewalls and above the base.

[00:29:21] Speaker 04:
This happens to sit above the siphon tube, which is hard to see, but which extends.

[00:29:25] Speaker 03:
Did you say it was behind the nozzle?

[00:29:28] Speaker 03:
The exit orifice was behind the nozzle?

[00:29:30] Speaker 04:
No.

[00:29:31] Speaker 04:
The aperture would lie in line with the jet of air that exits the nozzle.

[00:29:36] Speaker 03:
But there was a lot of talk about who was it that brought up this notion of the exit orifice being behind the nozzle.

[00:29:42] Speaker 04:
That was appellants.

[00:29:43] Speaker 03:
But I read something where they say, no, no, no, that wasn't us.

[00:29:47] Speaker 03:
That was you.

[00:29:48] Speaker 03:
And then I read what it was, and it was you.

[00:29:51] Speaker 04:
The argument is, and I'm at my time, but I'd like to answer your question.

[00:29:55] Speaker 04:
The argument was that the three structures we talked about, the top, the sides, and the bottom, the bottom does extend behind the nozzle.

[00:30:03] Speaker 04:
The sides to some eyes could extend behind the nozzle, but the aperture top, which would define the top of the aperture.

[00:30:09] Speaker 03:
What is the bottom?

[00:30:10] Speaker 03:
The bottom of what?

[00:30:12] Speaker 04:
The bottom of the chamber extends back behind the tip of the nozzle.

[00:30:17] Speaker 03:
Is that 116?

[00:30:18] Speaker 04:
So this is a product, not a patent figure, but the base of our product of that adduction chamber, the alleged adduction chamber, does extend back to and behind the tip of the nozzle.

[00:30:32] Speaker 03:
Well, all that compressed air in your device that is enjoying mixture adduction with the fluid that's coming up out of the reservoir,

[00:30:42] Speaker 03:
It goes out to go into the air somewhere.

[00:30:45] Speaker 03:
Correct.

[00:30:45] Speaker 03:
And where's the exit in the drawings of the dissected machine?

[00:30:50] Speaker 03:
Where does the air come out?

[00:30:54] Speaker 02:
Do the photos on A4 show it?

[00:31:00] Speaker 04:
Yes.

[00:31:01] Speaker 04:
If you look at appendix page 4, the upper archway,

[00:31:06] Speaker 03:
Are we talking about the picture on the bottom or the picture on the top of page 4?

[00:31:11] Speaker 04:
My explanation would apply to both pictures.

[00:31:13] Speaker 03:
Pardon me?

[00:31:14] Speaker 04:
Well, in the bottom image on appendix page 4, you can see the removed component that has that archway at its bottom.

[00:31:22] Speaker 04:
That would be inserted into this circular space such that the archway arms point down.

[00:31:31] Speaker 03:
I've got the version where I can read it.

[00:31:33] Speaker 03:
So the exit is at the, not the separator wall, the aperture side.

[00:31:40] Speaker 03:
Where is it?

[00:31:41] Speaker 03:
Is the exit 12, 16, 22?

[00:31:43] Speaker 03:
Or which number?

[00:31:47] Speaker 04:
The numbers aren't as clear in my image.

[00:31:50] Speaker 04:
I can only describe it with reference to the structures.

[00:31:52] Speaker 04:
I think you would know that.

[00:31:53] Speaker 04:
I don't know the numbers.

[00:31:55] Speaker 03:
Well, I'll tell you.

[00:31:55] Speaker 03:
The number that's on the top at nozzle is 12.

[00:31:58] Speaker 04:
OK.

[00:31:59] Speaker 03:
The number that's below that aperture side is 16.

[00:32:03] Speaker 03:
Okay.

[00:32:03] Speaker 03:
The one slightly to the left of that is 22 separator wall.

[00:32:07] Speaker 03:
Right.

[00:32:09] Speaker 03:
Over on the left, 20 is separator or separating chamber.

[00:32:14] Speaker 03:
And the one on top is 42 reservoir tube.

[00:32:17] Speaker 04:
Right.

[00:32:17] Speaker 04:
The answer to your question then is the air proceeds from the nozzle over the siphon tube and the siphon tube is where the aperture would be located according to the inference and allegations.

[00:32:26] Speaker 04:
And then it proceeds left in these images.

[00:32:28] Speaker 03:
The only siphon tube mentioned here.

[00:32:31] Speaker 04:
It would be reservoir tube.

[00:32:33] Speaker 03:
Which?

[00:32:34] Speaker 04:
Reservoir tube.

[00:32:36] Speaker 04:
I think it's number 12 or 14.

[00:32:38] Speaker 03:
OK, reservoir tube.

[00:32:40] Speaker 04:
In the lower image, there's a reservoir tube, according to my understanding.

[00:32:44] Speaker 03:
So that's the exit?

[00:32:45] Speaker 04:
No, the exit would be to the left of that reservoir tube.

[00:32:48] Speaker 04:
And then it would enter the separation space to the left of the reservoir tube.

[00:32:51] Speaker 03:
So there's a little blank space there in the picture.

[00:32:53] Speaker 03:
Is that the hole?

[00:32:56] Speaker 04:
Which hole?

[00:32:57] Speaker 03:
Well, where the stuff is coming out of the mixing chamber and going towards being able to be spread out in the air.

[00:33:04] Speaker 04:
Right.

[00:33:04] Speaker 04:
That hole or aperture exists only when you insert the component in the lower image to the left, which defines the alleged aperture of the accused product.

[00:33:16] Speaker ?:
OK.

[00:33:18] Speaker 04:
Because in our view that the court appropriately construed the anchoring and spacing terms and applied them faithfully, we ask that the court affirm the record suggestions.

[00:33:34] Speaker ?:
Thank you.

[00:33:34] Speaker 00:
Thank you.

[00:33:39] Speaker 00:
If I may, I'd like to start with one idea about the aperture.

[00:33:44] Speaker 00:
And aperture can be a three-dimensional opening, but it can also be a two-dimensional opening.

[00:33:50] Speaker 00:
That's the whole point to using the term aperture in the claim, is that it can cover more than one thing.

[00:33:55] Speaker 00:
The exit orifice, under the context of the claim, is a two-dimensional opening at the end of the cavity where the mixing occurs.

[00:34:06] Speaker 00:
I'd like to look at appendix pages four and five for a minute if I could as well This is a picture of the accused device labels are very blurry.

[00:34:17] Speaker 00:
I can't make heads or tails out of The way the labels are blurry, and I apologize for that you can see

[00:34:27] Speaker 00:
There's kind of an opening that has a little bit of a U shape.

[00:34:29] Speaker 00:
It's like a floor with two walls.

[00:34:32] Speaker 01:
Which photograph are we looking at?

[00:34:33] Speaker 00:
I'm looking at the bottom photograph, although the top one also shows... On Appendix Page 5.

[00:34:40] Speaker 01:
I'm sorry?

[00:34:40] Speaker 01:
On Appendix Page 5.

[00:34:41] Speaker 00:
Oh, I'm sorry, Appendix Page 4.

[00:34:42] Speaker 00:
4, thank you.

[00:34:44] Speaker 00:
I'm sorry.

[00:34:44] Speaker 03:
On the bottom.

[00:34:46] Speaker 00:
On the bottom.

[00:34:46] Speaker 03:
Yes.

[00:34:48] Speaker 00:
This shows the cavity has a floor and two sides in that bottom picture.

[00:34:53] Speaker 03:
What's the cavity?

[00:34:55] Speaker 00:
The cavity is right in front of the nozzle.

[00:34:58] Speaker 00:
You pointed out nozzle number, labeled number 12.

[00:35:01] Speaker 03:
Yeah, but the cavity is not defined.

[00:35:04] Speaker 00:
The cavity is not identified here, although you can see that there are sides next to the nozzle and a floor.

[00:35:15] Speaker 00:
And then the aperture top fits over.

[00:35:17] Speaker 03:
Well, it's also part of a greater open chamber.

[00:35:21] Speaker 00:
Yes, it's a smaller.

[00:35:23] Speaker 03:
It's like a bowl, a bowl.

[00:35:24] Speaker 03:
Is there a chamber inside the chamber?

[00:35:28] Speaker 00:
Well, the bigger chamber is what we call the separator, the separation chamber.

[00:35:33] Speaker 00:
The other chamber is what we call the cavity, right in front of the nozzle.

[00:35:38] Speaker 00:
And that cavity

[00:35:40] Speaker 00:
has an exit orifice that's very similar to the one in the patent.

[00:35:44] Speaker 00:
It is not right up next to the nozzle.

[00:35:48] Speaker 00:
When that aperture top essentially forms the roof of that cavity.

[00:35:52] Speaker 00:
Are we talking about the archway?

[00:35:54] Speaker 00:
Yes, the archway.

[00:35:56] Speaker 02:
OK.

[00:35:56] Speaker 02:
The archway is.

[00:35:57] Speaker 02:
I mean, right now, on the bottom, the photo of A4, we don't actually see the aperture when it's fully assembled and put together.

[00:36:06] Speaker 00:
And that's kind of the bottom of page five.

[00:36:11] Speaker 00:
That's why you have to kind of look at both of these together.

[00:36:13] Speaker 02:
Is the bottom of page five showing me the aperture right now?

[00:36:15] Speaker 00:
Well, the bottom of page five is cut away to show the... Right, right.

[00:36:19] Speaker 03:
But sir, for me, what your problem is, this discussion we're having right now is not in the record.

[00:36:28] Speaker 03:
This explanation about what all these things mean, I didn't see that anywhere written down on a piece of paper that the judge could understand.

[00:36:36] Speaker 00:
OK, the judge put these in here and had other pictures.

[00:36:39] Speaker 03:
What I'm telling you is these pictures were supplied by you, for your client, to show why under the district court's claim construction there was infringement.

[00:36:50] Speaker 00:
Right.

[00:36:50] Speaker 03:
Right.

[00:36:51] Speaker 03:
And so you're now saying which is what, where the error goes, where the chamber is, and all that.

[00:36:57] Speaker 03:
And then you've got a yardstick, supposedly, that's going to show the measurement.

[00:37:02] Speaker 03:
But I don't see any explanation of any of this.

[00:37:05] Speaker 00:
The explanation is on appendix page 152, on appendix page 158.

[00:37:12] Speaker 03:
I would say there's a... Won't that just float at 152?

[00:37:14] Speaker 00:
Yes.

[00:37:21] Speaker 00:
And, I'm sorry, if I may, I'd almost rather jump to page 1181.

[00:37:29] Speaker 00:
for the reason that my friend said that ESIP's expert never looked at this picture and never made a calculation with respect to the adductor configuration.

[00:37:40] Speaker 00:
And on page 1181 and 1182, more specifically in paragraphs 63 and 64 there, our expert does describe the eductive configuration and how a measurement is taken.

[00:37:55] Speaker 00:
It can be, as he says, a simple inspection of the actual device.

[00:38:00] Speaker 00:
And that's what these pictures show.

[00:38:02] Speaker 02:
I'm sorry?

[00:38:02] Speaker 02:
Where does he say that?

[00:38:03] Speaker 02:
What line?

[00:38:04] Speaker 00:
Paragraph 63 or 64?

[00:38:06] Speaker 00:
Paragraph, I think that's in 63.

[00:38:09] Speaker 03:
No, it's basically 64 and 65 or 64 you're relying on.

[00:38:15] Speaker 03:
There's no measurement there.

[00:38:18] Speaker 00:
The measurement is on appendix page 152, where we say that the measurement is four to six nozzle diameters.

[00:38:30] Speaker 00:
The expert looks at this picture.

[00:38:33] Speaker 00:
He notes it in, I think it's paragraph 64 there.

[00:38:39] Speaker 00:
and says that the distance between the nozzle and the aperture is indeed within the claimed range.

[00:38:52] Speaker 02:
Without explanation.

[00:38:55] Speaker 00:
The explanation is accompanying with the picture that you can look at the inductor configuration and determine the distance.

[00:39:04] Speaker 00:
This is a common idea of a perfect example in everyday life is a traffic situation.

[00:39:12] Speaker 00:
People talk about how the distance between cars using car lengths.

[00:39:18] Speaker 00:
The car length doesn't have to be exactly known.

[00:39:22] Speaker 00:
But you can tell how far away from another car a car is and just kind of show it by car lengths.

[00:39:30] Speaker 00:
And there are many core cases that talk about that distance being established in car lengths.

[00:39:36] Speaker 00:
And that's what the inventor did here.

[00:39:38] Speaker 00:
This distance is established in minimum effective diameters.

[00:39:43] Speaker 02:
Aren't we talking about something on the level of microns?

[00:39:46] Speaker 00:
No, with respect to the minimum effective diameter, defendants measured it and ESIP does not dispute that it's 500 microns, which is half a millimeter.

[00:39:57] Speaker 02:
The ruler... Right, so, I mean, when you talk about car lengths as an analogy...

[00:40:01] Speaker 02:
to do a visual inspection of something that feels a little different than when we get to the order of half a millimeter.

[00:40:10] Speaker 02:
I have no confidence just from looking at something, whether something is 500 microns in length.

[00:40:18] Speaker 00:
The ruler here is actually showing centimeters divided into millimeters.

[00:40:24] Speaker 00:
And that ruler is there to provide scale.

[00:40:27] Speaker 00:
So what you can see is that half a millimeter is observable by the naked eye.

[00:40:32] Speaker 00:
And the distance from the nozzle to the exit orifice is, if you want to convert it to millimeters, it's 2 to 3 millimeters, which is, again, observable with the naked eye.

[00:40:43] Speaker 02:
That's a centimeter ruler?

[00:40:45] Speaker 00:
Not a standard.

[00:40:47] Speaker 00:
It's an inch ruler, but it's an inch ruler.

[00:40:53] Speaker 00:
Well, it's got inches on the other side.

[00:40:56] Speaker 00:
It's a ruler where inches are on one edge and centimeters are on the other edge.

[00:41:02] Speaker 00:
This happens to show the centimeter edge.

[00:41:05] Speaker 00:
You know that because it's divided into tenths.

[00:41:08] Speaker 00:
An inch ruler is divided into sixteenths, not tenths.

[00:41:15] Speaker 00:
This shows centimeters on this side, and the hash marks show millimeters.

[00:41:22] Speaker 00:
And I'm sorry.

[00:41:23] Speaker 00:
I apologize.

[00:41:24] Speaker 01:
No, you were answering questions, but I think it is time to bring this to an end.

[00:41:29] Speaker 00:
Thank you, Your Honor.

[00:41:30] Speaker 01:
I appreciate it.

[00:41:31] Speaker 01:
Thank you.

[00:41:32] Speaker 01:
And thanks to both counsel.

[00:41:34] Speaker 01:
Case is submitted.