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The final argued case of the morning is Hoist Fitness Systems Incorporated versus Tough Stuff Fitness International Incorporated, appeal number 21-1978.

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Mr. Telcher, can you hear me?

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I can, Your Honor.

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Okay.

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Very good.

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Please begin whenever you're ready.

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Good morning, Your Honors.

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Two and a half years into this litigation,

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12 hours before trial was to start, police admitted that it could not prove that our client's machines produced a generally circular motion.

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This was against the backdrop of every asserted claim requiring the word pivotal motion.

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Their expert admitting that pivotal motion is circular motion.

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This court, having reviewed the claim construction, finding that the specification compelled that conclusion.

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in short, at no point did we ever have a case against our client.

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As I recall, Mr. Telcher, as I recall, the district court had to continually revisit the claim construction question multiple times over the course of the

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lead up to the trial, right?

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There was the markman.

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There was the summary judgment phase.

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There was the motion in limine where the court felt like it had to give a very specific instruction.

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And then finally, at the status conference on the day before trial, the court felt the need to further clarify the construction it gave at the motion in limine stage.

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Is that right?

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So I guess what I'm saying... Where in the record... Where in the record... I'm sorry, sir.

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Mr. Telcher.

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Mr. Telcher.

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Mr. Telcher.

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Excuse me.

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Yes, sir.

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Where in the record

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Did the district court say, my construction has not changed one whit despite the fact that I am using different articulations?

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Because as I understood at the Markman, the district court ultimately adopted plain and ordinary meaning.

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And then obviously at the mill stage and the status conference, the district court said something different from just reaffirming plain and ordinary meaning.

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So these sites to the record, Your Honor, to answer your specific question are appendix 11976.

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Which volume is that?

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You know what the volume is?

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I think it's sequential, though, isn't it?

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We'll give you the volume number, Your Honor, but the appendix site is 11976.

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I believe that's volume three.

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Thank you, Your Honor.

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one one and it's one one nine seven eight okay uh... an appendix well three two one the twelve three two two.

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Why don't you refer to us the specific language that you're relying on on those pages?

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I will, Your Honor.

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So back to the first site.

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Having further considered the parties arguments regarding certain... So you're looking at the bottom of the page

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under claim construction, just to orient us.

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I just have it on a typed out outline, Your Honor.

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I don't have the page numbers.

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She's asking us to use it at the bottom of the page so they can orient it.

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She's in the middle of the page, Your Honor.

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First full paragraph.

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OK, it begins with having further considered the party's arguments.

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Is that this?

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Yes, it is, Your Honor.

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And the district court says consistent with the plain and ordinary meaning, which their expert conceded was circular, and consistent with the analysis set forth in the court's claim construction order.

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And it's absolutely consistent.

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There's never been a debate on this record that pivotal means circular.

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that that is the plain and ordinary meaning of pivotal.

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That's their expert conceded and our experts confirmed, which means the only way they could have ever had a case is to have some basis for deviating from the plain and ordinary meaning of pivotal.

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And as this court found in its affirmance order, the specification of these patents compel, that was the words of this court, compel the conclusion that

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circular motion is required.

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Mr. Telcher, if I recall correctly, didn't the district court during the Markman's order rule reject your preferred specific construction because the district court did not believe it should adopt a highly strict interpretation?

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of the ordinary meaning because of the four bar linkage embodiment in the specification.

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And then at the same time, in denying your summary judgment motion, the district court again said it rejected the idea that the claim could not encompass any form of translational movement.

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Am I remembering the district court statements correctly in the Markman and denial of summary judgment?

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to an extent, Your Honor.

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So let me clarify what the record actually was with citations to the record.

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Could you tell me which part of what I restated was incorrect?

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So the court specifically rejected, at page 23 of the Martman Ordinance, the court specifically rejected Hoyst's broad interpretation of plain and ordinary meaning.

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That would be the construction that was rejected that Hoyst would continue to promote throughout the litigation.

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That's what page 23 specifically says.

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But I understand the parts of the opinion you want to point to.

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I'm talking about the other parts of the order.

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We agree, Your Honor.

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There was a point in that order where the trial court concluded that it could not adopt a highly strict interpretation of the term.

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Is that right?

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That's correct.

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OK.

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And then the denial of the summary judgment, in that order, the district court said it rejected Tough Stuff's preferred interpretation of excluding any amount of translational movement.

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Is that correct?

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That is incorrect.

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We are not arguing that's incorrect.

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I mean, it's incorrect that that's what we are arguing.

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That's what the district court said.

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OK, that's what I'm trying to get at.

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So the district court did say those two things.

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It did say those two things.

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But as to the first point where it says it was not going to adopt a highly strict interpretation of circular, on the same page that you're citing, if you read down, it rejects voice construction of plain and ordinary meaning, saying that it was too broad.

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And it goes on to specifically say that all that's not required is perfectly pivotal.

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From that moment forward, this case turned on whether our client's motion was generally circular, generally concentric, generally circular, not perfectly circular or pivotal.

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That was the sole issue that was there at Markman.

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And at the eve of trial, they admitted they could not prove our client's motion was generally circular because it was not.

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As early as the preliminary injunction phase, and we cite this in our brief,

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they admitted that our plant's movement was elliptical, not generally circular.

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So if their claims are all pivotal, pivotal requires circular motion, and they admit there's no point that they prove circular motion.

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That means they've never had a case.

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Mr. Telcher, the district court lived with this case for a couple years and knew full well what the arguments were and how the case evolved.

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And we're under an abusive discretion standard here.

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Can you just get to the heart of why, in your view, the district court was just way out of line and very unreasonable in choosing not to grant attorney's fees here, given the very deferential standard of review that you're up against?

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So this court's precedent, Your Honor, and Justice Kamen Ross Chao's clear.

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In order for there to be deference to his findings, the district court needed to make findings.

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The only findings on the merits of this case are one paragraph where, in a very general fashion, he says their claim construction position did not stand out in terms of its substantive strength.

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He doesn't say what the claim construction was, and he doesn't cite any support court.

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So this court is a reviewing court.

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Doesn't everybody know what the claim construction is, though?

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I mean, that's not in dispute.

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So why does the court have to identify what it was?

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It's the claim construction term you're talking about.

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No, Your Honor.

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the claim construction that Hoyst was advancing.

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That's not clear.

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We know what the district court held the claim construction was, but in order for them to prevail, they've got to show that their claim construction had some basis in the record.

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So that's error number one to answer the question.

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Error number two is this court's precedent and its legal error to place undue emphasis on the denial of summary judgment was legal error.

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Here, Hoyst admitted summary judgment should have been granted.

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In view of the claim construction, generally circular motion, they admitted they couldn't prove it.

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So we have a case where two pages of the analysis, almost the entire analysis, denying fees is based on the improvident denial of summary judgment where it should have been granted.

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And the district court provides no analysis of why even the, and that's exactly what happened in Eco Brands.

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In Eco Brands, summary judgment was defeated and the district court found at trial there was no genuine issue of fact.

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Here, Hoist admits there was never a tribal issue of fact.

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And on that record, summary judgment should have been granted.

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We want it as a matter of law.

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Now, the district court judge disagreed with you, right?

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That there was never a case at all, ever.

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There was no genuine issue of material fact from the beginning of the case, right?

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And it was only until later when it clarified its construction that that became clear.

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I believe that's what the district court said.

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Why shouldn't we give that some credit?

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The district court judge specifically said,

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Several times in the record, as I cited, he never changed his claim construction order.

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And therefore, the claim construction order remains the same.

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The machines never changed, and they admitted that they couldn't prove generally circular motion.

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There's no evidence.

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And in the order denying fees, it's two pages.

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The district court judge doesn't cite any evidence.

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He doesn't cite to the patents.

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The police doesn't cite to the patents.

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There is no evidence that supports any construction other than circular motion, which they confirmed they could not mean.

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Mr. Telcher, you're into your rebuttal.

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Would you like to keep going?

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Would you like to reserve your time?

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I will preserve my time.

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Thank you, Your Honors.

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Sure.

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OK, let's hear from Ms.

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Garner.

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Ms.

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Garner, I think you're still on mute.

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I cannot hear you.

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Thank you, Your Honor.

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Can you hear me now?

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Yes.

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Thank you, Your Honors.

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Mr. Keltzer started out saying that two and a half years into this case and 12 hours before trial, Boyce acknowledged that it could not prove infringement.

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And it did so because two and a half years into this case and 12 hours before trial, the court changed its claim construction for the third time, the second time with regard to these particular terms.

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At the district court, did the district court say each time that the construction it was now giving was entirely consistent with the construction it had given previously?

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And in that way, there wasn't really any migration of the claim construction?

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The court did not say that.

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The court said that its new constructions were consistent and were clarifications of what it had said before.

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Court also said that in the motion to eliminate order in which the court initially changed the construction to read generally concentric motion was required, the court acknowledged that both parties had picked and chosen from its claim construction order the parts that they preferred.

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court acknowledged that clarification was required because the court's claim construction order had indicated that while pivotal may refer to circular motion, that the analysis here is complicated by the fact of multiple pivot assemblies.

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The particular one that

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discussed in the patent is the four-bar assembly.

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So the four-bar assembly has four pivots, four physical pivots, each one of which causes circular motion and together cause non-circular motion.

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So in light of that, Tufts' position at plank construction that the court should rule that the user support frame that was pivotally mounted had to move in a circle was wrong.

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The court agreed with Hoyst

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on plane construction that the term pivotally mounted had its plane meaning.

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And in its discussion of what the plane meaning was, the court noted that some form of pivotal, rotational, and or arcuate motion is required by the plane meaning of the planes.

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The parties, so October of 2018, Hoist prevailed on claim construction.

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Plain meaning the court discussed generally concentric, but it had always been Hoist's position that claims, asserted claims have a limitation that imparts a degree of concentricity.

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But those were different claim terms.

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the pivot axis, central pivot axis, and user support pivot axis.

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And from day dot, from Hoyst's complaint, Hoyst noted that the user support frame has to move around concentric, common center, has to move around pivot axis, either a user support pivot axis for some claims, and a central pivot axis

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So it isn't the case that Hoist believed that concentricity wasn't required.

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And that's why, when the court ruled that there was a concentric requirement with regard to the pivotally mounted terms, that didn't upend Hoist's infringement case.

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Because Hoist had shown, with regard to the pivot axis claims, that there was concentricity.

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So over the course of this case, issues of infringement were addressed again and again and again, and each time Hoist was successful.

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Hoist prevailed on claim construction in October of 2018.

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Not two months later, Tufts-Stefans made an emergency temporary restraining order motion, which Hoist

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Tough stuff takes issue with poise relying on, but the issue of non-infringement came up in that motion because tough stuff, in order to prevail, would have had to show likelihood of success on the merits of non-infringement.

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The court rejected tough stuff's motion, found that it had been likely filed for an improper purpose, strongly rebuked tough stuff,

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and found that Testov's non-imprinchment argument was cursory.

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So two months after claim construction, Hoyst's claim construction win, Hoyst overcame the TRO motion, and Testov had an opportunity to, but did not further its case with regard to non-imprinchment.

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Three months after that, the judge ruled on summary judgment.

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And in rejecting Tufts Duff's fees motion, the district court described its summary judgment order as follows, that Appendix 3, the quote, the quote, the court rejected Tufts Duff's position that as a matter of law, any piece of exercise equipment that includes a translational, i.e.

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sliding movement, cannot infringe.

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So again, Hoyst's position was validated that

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It isn't the case that the fact of translational movement means non-infringement.

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And it's important to note that Tufts's summary judgment motion covered several terms, including the pivot axis terms, and with regard to the pivot axis terms, Hoyst argued that

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that the user support frames did move concentrically.

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And specifically with regard to pivotal mounting, the entirety of test-test position on summary judgment was, we have a mechanism, a part of our mechanism, one part of a very complicated mechanism that moves laterally, therefore we don't infringe.

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Because the resulting motion is curvilinear.

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Now, test stuff didn't say what curvilinear means.

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It's not a claim term.

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It hadn't been defined or construed.

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And the judge, the district court, rejected that position that as a matter of law, any piece of exercise equipment that includes the translational, i.e.

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sliding movement, cannot infringe.

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Again, Hoyst's infringement position was validated.

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Three months after that, the judge had to order tough stuff to produce evidence that it relied on with regard to non-infringement.

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And then two months later, so courts won that motion.

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And then two months after that, the parties briefed their motions in lemonade.

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And each party, tough stuff and voice, made two motions.

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that touched on non-infringement or non-infringement.

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And hoist was successful, which refers to both of its motions, and Tufts' motions were both rejected by the court.

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The court contended that its clarifications of the claim construction were consistent with its original observations.

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However, at motion and limine,

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The district court rejected Tuff-Stuff's expert position that Hoist was only entitled to a subset of the possible motion that a four-bar linkage could accomplish.

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The court rejected that position and said that Hoist was not limited to only certain

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of the motion paths that a four-bar linkage can accomplish.

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So notwithstanding that the court, notwithstanding that the court modified its construction at motions in limine, at that point in time, Waste was still entitled to all of the motion paths that could be accomplished by a four-bar linkage.

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So to take the position that from generally concentric

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because you can find an average center of movement, and including all of the motion paths that can be accomplished by a four-bar linkage, comparing that to a requirement that the motion of the user support frame had to be generally circular, there was a distinct and obvious and detrimental

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infringement position for the first time on the eve of trial change to the claim construction.

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Mr. Telscher claims that the district court did not support the opinion but nothing could be further from the truth.

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Testif also implies that the district court denied the fees motion on the sole ground or on the, you know, almost only on the ground that it had previously denied

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summary judgment motion, but that's an inaccurate portrayal of the district court's detailed opinion regarding fees, which makes clear that Tufts-Stuff's failed summary judgment motion was just one data point in the totality of the circumstances, which the district court drew its conclusion that Tufts-Stuff was not entitled to fees.

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So it's not clear at what point, after which win, prevailing on summary judgment, prevailing

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on the TRO prevailing on plan construction, summary judgment, motion to eliminate.

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At what point was it supposed to determine that it couldn't move forward?

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It won each one of the motions that had anything to do with non-infringement or infringement in the case.

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And the detailed opinion of the district court reflects that.

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The opinion starts with a review of the procedural history relative to the

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pivotally mounted terms.

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On initial claim construction, the district court's fees order notes that the asserted patents disclosure of multiple pivot assemblies presents unique issues about the exact movement path of mounted objects.

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So in considering the fees motion, the district court looked back at claim construction and acknowledged that

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you know, there were these difficult issues.

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This was not a no brainer.

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Um, the court in its fierce order also noted that on claim construction, the district court had quote, declined to adopt a construction of this term or others that would rely on a highly strict interpretation of the pivotal rotational or accurate or arcuate motion.

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And that's at appendix two three.

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And that's the same

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reasoning on which Hoist relied to overcome the summary judgment motion, which the court addresses next in its order at appendix three.

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The order denying fees goes on to note that on summary judgment, the district court had clarified claims the claim construction order and denied test steps request for summary judgment.

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that as a matter of law, any piece of exercise equipment that includes a translational, i.e.

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sliding, movement cannot infringe.

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The court also later in its order took tough stuff to task with regard to the absolute lack of evidence that it brought on summary judgment and its raisiness with regard to that lack of evidence.

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Now, tough stuff has

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taking the position that the district court held it to a standard that's inappropriate.

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This is the first time TuftsDef made that argument.

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TuftsDef didn't ask the court to reconsider its summary judgment on the basis of having applied the wrong standard.

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TuftsDef didn't tell the court in its fees motion that the court had applied the wrong standard on summary judgment.

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And in fact, the court didn't apply the wrong standard.

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The court asked TuftsDef

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to point to specific ways in which the accused system did not meet the claim limitation.

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And the court found that Cuffstuff was wholly unable to do that and bravely acknowledged that it lacked evidence to support its position.

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The court's order on fees goes on to discuss the motions and eliminate order.

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and then to discuss the appeal at which the district court notes that the Federal Circuit acknowledged that the construction changed.

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Ms.

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Garner, your time is almost up.

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Do you have a final thought?

[00:26:57] Speaker 01:
I do.

[00:26:57] Speaker 01:
The court considered the correct legal standard, summarized the party's arguments, and set out its reasoning and analysis.

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The court's findings should be affirmed.

[00:27:09] Speaker 03:
OK, thank you.

[00:27:11] Speaker 01:
Thank you.

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We'll now hear rebuttal from Mr. Telcher.

[00:27:19] Speaker 02:
Your Honor, we're sympathetic to District Court judges view fee requests as a tail wagging the dog, but this court's precedent requires them to give an analysis.

[00:27:30] Speaker 02:
There's one paragraph on the merits with no citation to the intrinsic record.

[00:27:34] Speaker 02:
There's reliance on the summary judgment order that's in violation of this court's precedent in eco-brands.

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They say, Hoyst says that the court clarified its order.

[00:27:44] Speaker 02:
We cited the court three citations where the court said it didn't change anything.

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Planned and ordinary meaning of pivotal was circular and that was used throughout.

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Their own expert admits that pivotal motion is circular motion and they conceded that they could never prove that.

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That meant there was no case.

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You know, Hoyst says it prevailed on summary judgment.

[00:28:06] Speaker 02:
Or excuse me, that it prevailed on

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I would ask the court to read at least page 23, which is 3568 of the appendix, where the court expressly tells Hoyst that its construction of plain and ordinary meaning was too broad.

[00:28:28] Speaker 02:
Quote, given this, it is unclear how Hoyst intends its understanding of this plain term is consistent with the terms plain and ordinary meaning in the context of the intrinsic record.

[00:28:39] Speaker 02:
It goes on to state,

[00:28:40] Speaker 02:
For these reasons, already stated, voice understanding would be contrary to the teachings of the intrinsic record, which consistently uses the words pivotal, arcuate, rotational to describe the movement paths of the disclosed exercise machine, as opposed to curvilinear or translational motion, which our client had.

[00:29:00] Speaker 02:
The court goes on to state on that same page, the only qualification of circular motion is it doesn't need to be perfectly pivotal or circular.

[00:29:09] Speaker 02:
The court's constructions at the mill phase and the eve of trial lifted the exact language from its mark and order.

[00:29:16] Speaker 02:
This construction never changed.

[00:29:18] Speaker 02:
Hoist says that it's supposed to win its summary judgment.

[00:29:20] Speaker 02:
I've asked the court to look at Appendix 6278 of Hoist's opposition.

[00:29:27] Speaker 02:
This is the exact quote on how they defeated summary judgment.

[00:29:30] Speaker 02:
And the district court never grappled with this false statement.

[00:29:34] Speaker 02:
This is what they said.

[00:29:37] Speaker 02:
Notwithstanding this litigation-inspired baffling, the user support frame of each accused device was confirmed by a voice expert to move an arcuate, non-linear, generally concentric path siding the lens.

[00:29:49] Speaker 02:
They would later withdraw that expert report at the mill face saying it was irrelevant, and they would concede on the courthouse steps that lens could never prove generally concentric motion.

[00:29:58] Speaker 02:
And they characterized this in the summary judgment opposition as the epitome of a fact dispute.

[00:30:04] Speaker 02:
The district court judge bought into it,

[00:30:06] Speaker 02:
Just like in EcoBrands, when a district court judge denied summary judgment, it would later be revealed that there was never a genuine issue of fact.

[00:30:14] Speaker 02:
And by the way, they say that they won the mill order.

[00:30:17] Speaker 02:
The judge denied striking lens.

[00:30:20] Speaker 02:
He clarified the claim construction order.

[00:30:23] Speaker 02:
Police withdrew lens's report saying it was irrelevant to prove generally circular motion.

[00:30:29] Speaker 02:
They struck their own expert report to say that we lost the mill is false.

[00:30:33] Speaker 02:
Your Honors, I know these cases are tough.

[00:30:36] Speaker 02:
I know you want to give discretion.

[00:30:39] Speaker 02:
But this district court judge never analyzed the merits, provided the court with no citations to the record, and relied almost exclusively on a summary judgment denial that should have been a grant and was a nullity.

[00:30:51] Speaker 02:
For those reasons, Your Honor, we would ask you to respectfully reconsider.

[00:30:54] Speaker 02:
Our client was a much smaller competitor and got hammered on fees.

[00:30:58] Speaker 02:
That's why we filed that TRO on the ITC action.

[00:31:03] Speaker 02:
reasons we respectfully ask the court to reverse and remand.

[00:31:07] Speaker 03:
Okay, thank you very much.

[00:31:08] Speaker 03:
The case is submitted and that concludes today's arguments.