[00:00:08] Speaker 03: Please, we really appreciate it. [00:00:10] Speaker 03: Mr. Meloro? [00:00:14] Speaker 04: Is that how you pronounce your name? [00:00:15] Speaker 04: Meloro or Meloro? [00:00:17] Speaker 00: Meloro. [00:00:17] Speaker 00: Yes, Your Honor. [00:00:18] Speaker 00: Meloro. [00:00:18] Speaker 00: Yes. [00:00:19] Speaker 04: Thank you. [00:00:25] Speaker 00: Thank you, Your Honors. [00:00:27] Speaker 00: It may please the court, and thank you for permitting us to be here today. [00:00:32] Speaker 00: The judgment of the district court should be reversed because, [00:00:36] Speaker 00: The Markman construction of fastening stems require attachment of two components of a multi-component device. [00:00:46] Speaker 00: Excuse me, it was improper. [00:00:48] Speaker 00: It was improper for four different reasons. [00:00:51] Speaker 00: First of all, the construction is inconsistent with the claim language itself. [00:00:57] Speaker 00: The specification does not mandate or dictate the construction of a multi-piece device [00:01:05] Speaker 00: with attachment by a fastening stem. [00:01:09] Speaker 00: The construction is contradicted by the prosecution history, where the examiner specifically. [00:01:14] Speaker 03: So in your view, why did the judge go astray here? [00:01:17] Speaker 03: Was it because of the MPP stuff we're dealing with on below, or was it just that she looked at the embodiments and made too much of them, or what? [00:01:30] Speaker 00: I think there were two fundamental aspects that contributed to the error here. [00:01:35] Speaker 00: One was the sense that the claim had to be limited to the embodiment in figures for A and B simply because fastening stem was amended and inserted into the claim. [00:01:48] Speaker 00: Secondly, the judge discounted entirely, essentially, the prosecution history where the examiner specifically noted that claims eight and nine had all of the limitations of claim one were fully examined and determined to be patentable. [00:02:05] Speaker 00: And that could not be the case if claim one required attaching two components of a multi-component device. [00:02:14] Speaker 04: Now, let's assume you're right about all that. [00:02:16] Speaker 04: And let's assume further that the district court made a mistake with respect to the claim construction issue. [00:02:23] Speaker 04: Where I have a problem with your brief is starting at about page 35, where you get into the question of whether there is a [00:02:34] Speaker 04: fastening stem that is contemplated for the one-piece devices in light of the specification. [00:02:42] Speaker 04: And you say that the, for example, and I'm reading from page 35, that because the conductor extends only partially through the terminals cavity, this is with respect to the figures of the one [00:03:01] Speaker 04: part device. [00:03:04] Speaker 04: Because the conductor extends only partially through the terminal's cavity, the specification contemplates the space between the conductor and mounting cuff potentially being occupied by a fastening stem. [00:03:19] Speaker 04: Now I don't see, and that seems to me just to be quite a stretch. [00:03:24] Speaker 04: I didn't see anything in [00:03:27] Speaker 04: the specification that suggests that the space, which is on figure 1C, between the phantom conductor and the junction, there's no suggestion that I could see that there's a fastening stem there, giving the term fastening stem any realistic definition. [00:03:51] Speaker 00: Your Honor, the- Do you understand? [00:03:53] Speaker 04: It's a long question, but I think you probably understand. [00:03:56] Speaker 00: Yes, I think I understood the question, Your Honor. [00:03:58] Speaker 00: And let me start the answer by saying that figure 1C does not disclose a fastening statin. [00:04:06] Speaker 00: Figure 1C is a generic figure. [00:04:11] Speaker 00: And there is a space in the cavity which is not occupied. [00:04:16] Speaker 00: by the conductor that is coming in. [00:04:17] Speaker 04: And there's nothing about that space that suggests, as far as I could see, that it is or could be occupied by a fascinating stem. [00:04:29] Speaker 04: The language of your brief suggests, well, it might be occupied by a fascinating stem. [00:04:34] Speaker 04: Who knows? [00:04:35] Speaker 04: Isn't that the gist of what you're saying? [00:04:37] Speaker 00: The specification itself does not say that a fastening stem could go in that space. [00:04:43] Speaker 00: The specification and the figure provide a space. [00:04:46] Speaker 04: So I'm really having, even if we send this case back, I guess where the bottom line is, I don't see how, unless the accused devices actually have a stem that comes up in the middle of the cavity, [00:05:02] Speaker 04: of the one-piece devices, how you can possibly prevail on any reasonable application of the term fastening stem? [00:05:09] Speaker 00: We're here for real reasons on this, Markman, and the infringement issue is a real issue if the case goes back. [00:05:20] Speaker 01: Do I recall correctly that when the district court judge asked, I believe, where is a device that's a unitary construction that has a fastening stem, the answer was the accused device? [00:05:32] Speaker 00: The accused device does indeed have a fascinating stamina. [00:05:35] Speaker 00: It's a unitary device. [00:05:36] Speaker 00: The specification itself does not disclose a specific embodiment with that construction. [00:05:45] Speaker 01: Your view is that the specification is broad enough that it could have covered something where there's a little piece of metal that goes, I mean, I guess, a solid construction that would go into where the second cavity 210 is, for example, and figure 2B. [00:06:01] Speaker 00: That's correct. [00:06:01] Speaker 00: You're on the specification. [00:06:02] Speaker 01: Let me ask you something else. [00:06:03] Speaker 01: I want to ask you about fastening. [00:06:07] Speaker 01: If there's a fastening stem in the claim, that's plain claim language. [00:06:12] Speaker 01: In the embodiment that you're envisioning, which isn't actually depicted in the specification, how is that fastening anything? [00:06:21] Speaker 00: Because fastening is broader than attaching. [00:06:24] Speaker 00: And I think that was one of the fundamental errors the court made below. [00:06:29] Speaker 00: Fastening, if you just look to the plain and ordinary meaning from a dictionary, includes joining, affixing, or securing. [00:06:39] Speaker 01: And then how is it joining, affixing, or securing? [00:06:43] Speaker 00: Because if you had a fastening stem that was in that space, it is securing. [00:06:50] Speaker 00: the terminal and the mounting cuff. [00:06:52] Speaker 04: These devices are designed- Even if they are just a one-piece device? [00:06:56] Speaker 00: Even if it's just a one-piece device, because if that space existed without a fastening stem, when you crimp the terminal, which is how the device is designed to be used, that you make the connection and then you crimp, you could actually break the terminal if there's not sufficient support there. [00:07:15] Speaker 00: So if you have a fastening stem extending into that terminal, [00:07:20] Speaker 00: that can secure the terminal and the mounting cuff, and in particular, could secure them for the purpose of the invention, which is when you make the connection and you crimp. [00:07:31] Speaker 04: So the fastening stem would, in effect, be a strengthening stem. [00:07:35] Speaker 00: In that instance, yes, in the unitary construction with fastening stem. [00:07:39] Speaker 04: That's not fastening in the normal sense of the word, the terminal and cuff. [00:07:44] Speaker 04: because they're already fastened to their one piece. [00:07:47] Speaker 00: It is fastening in the ordinary sense to Merriam-Webster dictionary, make fast and secure is one definition. [00:07:55] Speaker 00: Fix firmly and securely is another definition. [00:07:59] Speaker 00: And secure against opening is another definition. [00:08:03] Speaker 00: Attach is also a possible interpretation of fastening, but it's not the only one. [00:08:10] Speaker 00: And in the ordinary usage of fastening, it encompasses more than attachment of two pieces. [00:08:16] Speaker 01: And the only fastening stem that you have in your specification is one that does more than that, right? [00:08:22] Speaker 01: The only one you have disclosed is one that's described as joining the pieces together, such as by precipitating the fastening stem of the mounting cuff 460 into the cavity 410 of the terminal 432, right? [00:08:37] Speaker 00: The fastening stem is introduced at the bottom of column 5 and to the top of column 6. [00:08:44] Speaker 01: Right. [00:08:44] Speaker 01: It's only in that third embodiment. [00:08:46] Speaker 00: I'm not saying there's any claims to that. [00:08:48] Speaker 00: Yes. [00:08:48] Speaker 00: In figures 4a and b, the terminal and the mountain top are two separate components. [00:08:54] Speaker 00: And there is a fastening stem. [00:08:57] Speaker 00: They are pressed fit together in that specific embodiment in figures 4a and b. And then, interestingly, if there's going to be [00:09:07] Speaker 00: Fastening, the specification discloses at column six around line 17 that they may be joined together using a variety of other fastening means, including adhesives, mechanical fasteners, or welding. [00:09:26] Speaker 01: One of the things that's troubling me is I'm thinking about the district court's language. [00:09:32] Speaker 01: The district court never said, in its claim construction, it never said it had to be a unitary [00:09:37] Speaker 01: or a multi-piece device, right? [00:09:41] Speaker 01: It never said that. [00:09:42] Speaker 01: It simply said that a fastening stand has to attach, right? [00:09:48] Speaker 00: The court did say, actually, in ruling on the reconsideration motion, and this is at appendix 23. [00:10:09] Speaker 00: that the court found that the plain language of the claim suggests that a fastening stem is a stem that attaches or joins the other two components of the apparatus, and then specifically said that the court's view of the specification is consistent and supports Merson's view that it is of a multi-piece construction. [00:10:31] Speaker 00: And the entirety of the argument before the district court was essentially the entirety was whether claim one [00:10:38] Speaker 00: when you interpret fastening stem encompasses unitary constructions or must be limited to multi-piece constructions. [00:10:51] Speaker 00: There was an argument that was made concerning waiver in the red brief. [00:10:58] Speaker 00: There was no waiver here at pages three. [00:11:02] Speaker 04: This is with respect to the generic use of the term generic. [00:11:06] Speaker 00: Correct. [00:11:06] Speaker 00: And at pages four and five of the reply brief, we laid out the various citations where the district court was advised that the argument was that claim one is indeed open to and covers unitary constructions in addition to multi-piece constructions. [00:11:29] Speaker 00: There were just a number of errors, I think, in the brief. [00:11:33] Speaker 00: the red brief that contributes to this waiver argument. [00:11:35] Speaker 00: I just would like to address a couple of them. [00:11:39] Speaker 00: The red brief of page 31 indicates that little few is conceded that claim one is limited to a single species, namely that of figure four. [00:11:49] Speaker 00: That was never the case. [00:11:52] Speaker 00: There was no such concession. [00:11:55] Speaker 00: There was, at page 32, an argument that [00:11:59] Speaker 00: Little Fuse argued that figure 1C shows a unitary end cap with a fastening stem. [00:12:07] Speaker 00: That was never argued by Little Fuse. [00:12:11] Speaker 00: There was also an argument regarding figures 2 and 3 having been dedicated to the public. [00:12:18] Speaker 00: And yes, a unitary construction without a fastening stem is not covered by claim 1. [00:12:24] Speaker 00: But that doesn't change the fact that claim 1 covers unitary constructions. [00:12:30] Speaker 01: looking at the stipulation that you have, the stipulations are not infringement. [00:12:37] Speaker 01: And that presents the court's construction a little more narrowly than you're arguing it right now. [00:12:44] Speaker 01: On page A979, it says the court's construction fast makes them, it doesn't describe it as requiring a unicorps or a multi-component construction. [00:13:02] Speaker 00: Your Honor, the construction with regard to attaches or joins other components, those components are different components. [00:13:13] Speaker 00: In other words, the parties argued whether or not that construction of attachment, what Littlefews argued. [00:13:22] Speaker 01: So right here, mounting cuff and terminal, those are two components, right? [00:13:28] Speaker 01: Aren't those two components? [00:13:30] Speaker 01: even though they might be in a unitary construction? [00:13:35] Speaker 00: I don't know if you would call them elements or components if they were in a unitary construction. [00:13:39] Speaker 01: The distinction seems a little bit hard for me to follow and understand. [00:13:44] Speaker 01: To be honest, it seems arbitrary to see your purposes right now. [00:13:47] Speaker 00: The Little Fuse argued that the term fastening stem should be for affixing joining or securing. [00:13:55] Speaker 00: Merson argued that it should be for essentially attaching for joining. [00:14:00] Speaker 00: And both parties said that the implication was that the claim either is limited to multi-piece construction or is open to unitary construction. [00:14:09] Speaker 00: The district court fully understood that, rejected Littlefuse's argument, required that the components be attached or joined. [00:14:20] Speaker 00: And in the reconsideration motion, it specifically acknowledged that its intention was that the claim be limited to multi-piece construction. [00:14:29] Speaker 00: and understood that Claims 8 and 9, therefore, could not be practiced because they were not limiting Claim 1 because Claim 1 was to multi-piece construction and Claims 8 and 9 were to unitary construction. [00:14:42] Speaker 00: So I think the ultimate construction and the court's understanding of the construction and the court's explicit statement on multi-piece construction mean that the issue before the court here ultimately is, [00:14:57] Speaker 00: that the markman construction on fastening is improperly narrow. [00:15:03] Speaker 00: It should be to a fixed join or skewer. [00:15:07] Speaker 00: And the implication of that is that it covers unitary construction in addition to multi-page. [00:15:12] Speaker 03: You know, we have all these principles that we apply in claim construction, and some of them seem in tension with one another on occasion. [00:15:19] Speaker 03: And we've got the principle here, which says you shouldn't limit it to the preferred embodiments. [00:15:24] Speaker 03: We've also got written description and enablement cases that get you into trouble sometimes when there's nothing there. [00:15:31] Speaker 03: Is there a written description or an enablement issue [00:15:33] Speaker 03: contention waiting in the wings here, if you get the construction you want? [00:15:38] Speaker 00: I don't know, sitting here today, whether there is or not. [00:15:43] Speaker 00: But we'd be happy to deal with one if we had to. [00:15:47] Speaker 00: And quite frankly, the sort of argument that's being presented sounds more in written scripture than in claim construction. [00:15:54] Speaker 00: On a plain, ordinary meaning, given this intrinsic evidence, the claim should not be limited to multi-piece construction. [00:16:01] Speaker 00: I see them now. [00:16:02] Speaker 01: I want to ask you another question. [00:16:03] Speaker 01: I'm sorry. [00:16:04] Speaker 01: I just want to make sure I understand. [00:16:06] Speaker 01: So the court's construction is a stem that attaches or joins. [00:16:12] Speaker 01: And that is for fastening stem. [00:16:14] Speaker 01: And for the other full limitation, it's that it attaches. [00:16:19] Speaker 01: And it's your view that that is too narrow. [00:16:24] Speaker 01: And also, you have this view that this construction automatically requires a multi-component device, right, in order for there to be infringement? [00:16:37] Speaker 00: That is our understanding of the court's construction. [00:16:40] Speaker 01: That was- I just don't see it in this tribulation. [00:16:42] Speaker 01: That's one of the problems I'm having. [00:16:44] Speaker 01: I think there's almost an assumption that that requires a multi-component product. [00:16:51] Speaker 01: And that instead is a factual question for a jury to decide. [00:16:56] Speaker 01: And the construction simply says attaches or joins or says attaches. [00:17:00] Speaker 01: So I want to make sure that you hear my position so you can respond to it. [00:17:04] Speaker 01: Why isn't that a factual question, given what is identified in this stipulation to non-infringement as being the construction? [00:17:14] Speaker 00: The construction is a construction that [00:17:19] Speaker 00: that requires the attachment. [00:17:22] Speaker 00: And the attachment was argued by both sides as to whether it would be open to unitary. [00:17:30] Speaker 00: And the court rejected that it would be open to unitary. [00:17:34] Speaker 00: The foundation of the court's ruling was that the claim should be limited by what was described in figures 4A and B, which is a multi-piece construction. [00:17:46] Speaker 00: Once the court issued it. [00:17:48] Speaker 03: Unitary, can you just, because Judge Still asked earlier about the word components. [00:17:52] Speaker 03: When you say unitary, what unitary about what? [00:17:56] Speaker 00: It's been a manufacturing process, Your Honor. [00:17:59] Speaker 00: So with a unitary construction, you would take one piece of material, and you would either machine it. [00:18:07] Speaker 00: So you would remove material. [00:18:09] Speaker 00: It's machined or stamped, but if you machined it, you would end up with a terminal here and a mounting cuff there, but it all started as one piece of material. [00:18:17] Speaker 01: But your view would be that would be one component that has three elements, a fastening stem, a mounting, whatever, and a terminal. [00:18:25] Speaker 00: That's your view? [00:18:27] Speaker 00: our understanding of what the district court ruled in the Markman ruling. [00:18:31] Speaker 01: But you know, we look at claim construction de novo, and I might look at this construction and say, I don't think it's unreasonable to say it's a stem that attaches or joins other components, because it has the word fastening stem in it. [00:18:44] Speaker 01: So that fastening must be doing some work. [00:18:46] Speaker 01: It must have some meaning. [00:18:48] Speaker 01: And so because I look at it de novo and I say, well, that construction looks reasonable, even if I don't think it's necessarily reasonable to say that that's limited to a multi-component construction, why isn't that construction there with your stipulation something that I should just affirm? [00:19:06] Speaker 00: Well, Your Honor, we believe that the construction that the court issued, the court understood to mean was limited to multi-piece construction. [00:19:16] Speaker 00: we'd many times end up in cases where you end up having to do a markman on a markman later on. [00:19:20] Speaker 00: I have to get your ruling. [00:19:23] Speaker 03: But let me ask you. [00:19:24] Speaker 03: I mean, the import of this is that you stipulated to non-infringement under this construction. [00:19:31] Speaker 03: And the other side apparently probably agreed with you. [00:19:35] Speaker 03: So is there any way we can look to, [00:19:38] Speaker 03: to confirm that the stipulation to non-infringement was because of your reading of the unitary stuff? [00:19:48] Speaker 00: Yes, Your Honor. [00:19:49] Speaker 00: The court's markment order, particularly the constructions that are laid out at A20 to 21, and then the court's ruling on reconsideration, and in particular the court's ruling [00:20:07] Speaker 00: a discussion at A23 on a fastening stem. [00:20:12] Speaker 01: But when I look at A20 to 21, which you just cited to me, the fastening stem is specifically defined. [00:20:19] Speaker 01: The court has very precise constructions on page A20 that are repeated in the stipulation. [00:20:25] Speaker 01: And they are the very ones we talked about. [00:20:27] Speaker 01: It doesn't say it has to be a multi-component device. [00:20:33] Speaker 00: Your Honor. [00:20:35] Speaker 00: The third construction, which is the longer term that includes Fastening STEM, the word attaches is what's used there. [00:20:45] Speaker 01: It's clear that the district court was- So your understanding that the president uses the word attaches, that that means multi-component. [00:20:55] Speaker 00: That's correct, Your Honor. [00:20:56] Speaker 00: And if you look at the entirety [00:20:58] Speaker 00: Through the Markman transcript itself, there was a lot of back and forth with counsel. [00:21:03] Speaker 00: And the Markman ruling itself and the reconsideration, the district court rejected the broader interpretation that was put forth by little views of joining, affixing, or securing. [00:21:19] Speaker 01: Wasn't your construction based on it was just plain and ordinary meaning? [00:21:25] Speaker 00: Plain and ordinary meaning, and then [00:21:27] Speaker 01: joining a fixing or securing was- Where exactly do you see that the district court says, no, I don't think attaching means join a fixing or whatever the last code was? [00:21:40] Speaker 00: Joining a fixing or securing. [00:21:43] Speaker 00: The court at appendix pages 15 and 16 discusses the little fuse construction. [00:21:58] Speaker 00: And in the first full paragraph on appendage page 16, the court cites Littlefuse's citation to the Merriam-Webster definition of fastening as to attach, to make fast and secure, to fix firmly or securely, or to secure against opening. [00:22:25] Speaker 00: And then the court goes on to say, [00:22:28] Speaker 00: that the dictionary is consistent with the fastening stem attaching the other two components. [00:22:36] Speaker 00: But attaching isn't the sum and substance of what the plain and ordinary meaning is. [00:22:42] Speaker 00: So the district court recognized that part of what Merriam-Webster permits is attachment, but then focused in and limited to attachment in making the marketing rule, and therefore rejected the broader construction. [00:22:58] Speaker 04: Just out of curiosity, it seemed odd that we have two claim constructions here. [00:23:05] Speaker 04: Fastening stem and then fastening stem that extends, dot, dot, dot. [00:23:10] Speaker 04: The only one that I see that's in the claims is the latter. [00:23:14] Speaker 04: Why do we have a separate construction from the former? [00:23:17] Speaker 00: The way the issues were presented below, individual words, [00:23:24] Speaker 00: were construed by the parties, and then the broader phrase. [00:23:28] Speaker 04: Let me put it this way. [00:23:29] Speaker 04: Does the dispute about fastening stem without the rest of the language matter if we focus on fastening stem that extends dot, dot, dot? [00:23:44] Speaker 00: No, it would not. [00:23:46] Speaker 00: The longer phrase, which requires attachment, captures the issue. [00:23:52] Speaker 03: OK, we're way beyond our time. [00:23:54] Speaker 03: I will restore some rebuttal while we hear from the other side. [00:23:57] Speaker 00: Thank you, Your Honor. [00:24:10] Speaker 00: Getting better at this. [00:24:32] Speaker 02: try to take the glasses off first or everything is going to come flying apart. [00:24:46] Speaker 02: May it please the court, Tom Begen, for Merson, USA. [00:24:51] Speaker 02: We believe that Judge Talwani below [00:24:56] Speaker 02: went right down the center of the bowling lane, if you will, following the principles of Markman and Phillips to articulate her claim construction. [00:25:07] Speaker 02: I want to address the issue of fastening and this idea that fastening is somehow supporting or strengthening. [00:25:19] Speaker 02: That came up at the full argument [00:25:24] Speaker 02: And I want to direct the court to page 901 of the oral argument. [00:25:53] Speaker 02: And then it's also a page. [00:25:55] Speaker 02: So if I could take a step back first. [00:25:57] Speaker 02: So the page of the red brief or the yellow brief references pages, appendix 350 to 359 for the idea that this fastening stem can have a strengthening component. [00:26:12] Speaker 02: And really, it's appendix page 353 that the district court focused in on, and at page 353, [00:26:23] Speaker 01: The following was said. [00:26:34] Speaker 01: Are you leaving pages 901? [00:26:35] Speaker 02: 901 talks about 353. [00:26:38] Speaker 02: So 353 says, regarding the aforementioned claims, Mellor Eugen did not disclose a fastening stem that extends from the mounting cuff of the first and second fuse end caps and into the second cavity that receives the conductor when the fastening stem is separate from the fuse body. [00:26:59] Speaker 02: It is considered within the level of some ordinary skill in the art at the time of the invention to have extended a nub or stem or some sort of extension to provide support for a connection or fastening between the components. [00:27:14] Speaker 02: So it doesn't say strengthening, it says for connection or fastening. [00:27:18] Speaker 02: And then going, you know, that issue is argued below and Judge Talwani at Page [00:27:26] Speaker 02: appendix 901 talked about it. [00:27:28] Speaker 02: And the court said, but you're not claiming that this language, the language of page 353, supports the argument that I guess I'm lost. [00:27:37] Speaker 02: I see there is a reference to supporting. [00:27:40] Speaker 04: I'm sorry. [00:27:41] Speaker 04: You're reading from 901? [00:27:42] Speaker 02: Yes. [00:27:43] Speaker 02: At the top, lines 1 through 7. [00:27:46] Speaker 02: So she says, I guess I'm not understand. [00:27:49] Speaker 02: She says, this supporting is for a connection or fastening between components. [00:27:55] Speaker 02: the court recognized that sort of fastening, you know, meant fastening. [00:28:01] Speaker 02: But I think I take Judge Stoll's point as well that the court's ultimately articulated claim construction was [00:28:11] Speaker 02: addressing only what the court said on page appendix 20. [00:28:14] Speaker 03: What do you make of that? [00:28:16] Speaker 03: I'm glad you turned to Judge Stull's question, because I think that's the important piece of this. [00:28:22] Speaker 03: And I guess I was interested in hearing your response. [00:28:25] Speaker 03: I mean, was it not your view that we were dealing with the distinction between unitary and multi-piece? [00:28:34] Speaker 03: And that was the deciding? [00:28:36] Speaker 02: The distinction, I think, and this gets to the way at the disclosure within the specification. [00:28:43] Speaker 02: So this arose from the fact that the patent initially had three species. [00:28:50] Speaker 02: It had three species, and in the yellow brief, were criticized for associating the species with the companion figures. [00:29:01] Speaker 02: So if you look at the restriction requirement, [00:29:04] Speaker 02: the patent office was clear, as is the case in restriction requirements, that the species and the figures are aligned. [00:29:15] Speaker 02: And Little Fuse makes the point in the yellow brief that yes, we disclaimed the figure, but we didn't disclaim the species. [00:29:27] Speaker 02: They say, well, the court, you know, the patent office used the shorthand for that. [00:29:31] Speaker 02: So I think Judge Tawani below recognized that it, you know, that the first and second species plainly did not have a fastening stem. [00:29:46] Speaker 02: And that the first and second species, when counsel below, [00:29:51] Speaker 02: said were dedicated to the public, that council below was talking about the species being dedicated to the public. [00:29:58] Speaker 01: You're talking about the figures. [00:30:00] Speaker 01: The figures that show embodiments one and two, those were not claimed. [00:30:09] Speaker 01: But there might be, I suppose there could be something else that's a unitary [00:30:16] Speaker 01: assuming for a moment it's a unitary construction as in figures 1 or I think it's figures 2 or maybe it's 1A and 1B but that there's some sort of additional piece of metal or whatever the material is that is in the I guess that someone could point to and say this element could be it's a little thicker here so it could be we're going to argue that it's a fastening step is that [00:30:41] Speaker 01: You know, we're doing our best here because we've got a situation where the examiner, at the end, rather than allowing the claim, said, claim one's generic. [00:30:51] Speaker 01: And it includes more than just the third embodiment. [00:30:54] Speaker 01: It now includes something that derives from the first and second embodiments, right? [00:30:59] Speaker 02: Yes. [00:31:00] Speaker 02: Our position below was that the examiner never made an affirmative finding that it was generic. [00:31:05] Speaker 02: The examiner rejoined it without explanation. [00:31:08] Speaker 02: And so we can point to the MPEP. [00:31:11] Speaker 02: And so the question is, was that a mistake? [00:31:13] Speaker 02: And what's the impact of that? [00:31:15] Speaker 02: What's the impact of rejoining? [00:31:17] Speaker 04: Well, as long as it makes some sense what the examiner did. [00:31:21] Speaker 04: It was crazy. [00:31:22] Speaker 04: It's just inexplicable and inconsistent with the laws of physics. [00:31:26] Speaker 04: Then, sure, it's a mistake. [00:31:28] Speaker 04: But doesn't it make some sense to say that what happened here is, arguably, as the examiner may have viewed it, is it started with three species. [00:31:40] Speaker 04: limited to one. [00:31:42] Speaker 04: And then when he came back, he said, OK, we'll go with species three for purposes of the fastening stem. [00:31:49] Speaker 04: And we'll add the requirement of a fastening stem to species one and two. [00:31:55] Speaker 04: And thereby, they become legitimate dependent claims of species three. [00:32:00] Speaker 04: Species three becomes claim one. [00:32:03] Speaker 04: Species two and one became claims eight and nine. [00:32:08] Speaker 04: why isn't that a reasonable way for the examiner to have proceeded in withdrawing the restriction requirement? [00:32:16] Speaker 02: I think that that stands in conflict with the specification. [00:32:22] Speaker 04: In what respect does it conflict with the specification? [00:32:26] Speaker 04: Admittedly, the drawings, for example, do not show a fastening stem in the [00:32:36] Speaker 04: first and second species. [00:32:38] Speaker 04: But they also don't exclude that possibility, right? [00:32:42] Speaker 02: I think that we're just left in the dark with that. [00:32:45] Speaker 02: So if we go back to first principles of notice, that people like Merson need to be on notice of what's in the patent document, what this document is. [00:32:54] Speaker 04: But why don't the claims give us that notice? [00:32:57] Speaker 04: Because if you read the claims, you have claim one says, OK, it's got to be a fastening stamp. [00:33:03] Speaker 04: And claims eight and nine say, it's got to have [00:33:06] Speaker 04: what claim one said, because they're dependent claims, and it's also can be unitary, either stamped or machined. [00:33:13] Speaker 04: Why isn't that all the notice you need for purposes of establishing that a unitary device with a spasming stamp is covered? [00:33:26] Speaker 02: my my answer to that is I don't know how to unpack your I don't know how to unpack that I don't know how to imagine what a unit here I don't know how to imagine within the four corners of the patent specification and the totality of the file history what a machined fastening stem and you brought what if there was a single [00:33:50] Speaker 01: piece device that had the first two components. [00:33:54] Speaker 01: I think it's a mounting something. [00:33:56] Speaker 01: And then there was something that went on top of those to fasten them. [00:34:01] Speaker 01: Could that be a fastening stem? [00:34:03] Speaker 01: I realize it might not meet other elements of the plane because it doesn't insert. [00:34:07] Speaker 01: But there could be something. [00:34:09] Speaker 01: But the question is, in other words, we might still have an argument, even if [00:34:15] Speaker 01: we try to make this examiner's determination in the prosecution history make sense. [00:34:20] Speaker 01: You might still have an argument, but you still have a fastening stem. [00:34:24] Speaker 01: It's not a fastening stem. [00:34:25] Speaker 01: Hypothetically? [00:34:26] Speaker 01: But I mean, and then also I have another question, which is you said something before that I'm not sure I drew it, so I just want to ask you about it. [00:34:34] Speaker 01: You said it were in the dark as to what the examiner was thinking. [00:34:37] Speaker 01: And I'm not sure that's true, because the examiner said very wrongly, claims 1 through 7 and 10 through 18 are allowed. [00:34:44] Speaker 01: Claims 8, 9, 19, and 20 previously withdrawn require all the limitations of the aforementioned allowable claims. [00:34:53] Speaker 01: So that is the very test of what the examiner was saying. [00:35:00] Speaker 01: The examiner was saying that those claims require these elements, rightly or wrongly. [00:35:06] Speaker 01: You know what the examiner is saying. [00:35:08] Speaker 01: The examiner is saying that it's generic. [00:35:13] Speaker 02: Our problem with the generic argument, and I'd like to point to Appendix 760 through Appendix 763 of the whole exchange at oral argument at the first markman. [00:35:28] Speaker 02: Opposing counsel in describing the restriction requirement in the initial sense said so. [00:35:36] Speaker 02: And this is the beginning of line 21. [00:35:39] Speaker 02: at Appendix 760. [00:35:41] Speaker 02: So in the initial prosecution, Littlefuse had proposed three different species that were recognized by the examiner. [00:35:49] Speaker 02: The first was 2A, 2B, which was a single piece construction. [00:35:54] Speaker 02: And the fine part was hard to read, but this was a machine-dent cap. [00:35:58] Speaker 02: And then going on to 761, I read that on 760 to show that [00:36:10] Speaker 02: opposing counsel below Associated the species with the figures so when there was this statement ultimately on Page 763 that the 3a and 3b were dedicated to the public Opposing counsel [00:36:32] Speaker 02: I understood Opposing Council to mean because of the association with the species with the figures both at oral argument below and how the examiner associated the species with the figures that they were dedicating species one and two to the public. [00:36:52] Speaker 02: In the brief they point out that the examiner withdrew [00:36:59] Speaker 02: the claims. [00:36:59] Speaker 02: While that's correct, but they identified which claims were to be prosecuted, which was, you know, dependent claims seven and eight were associated with the third species. [00:37:09] Speaker 02: And that made its way in. [00:37:10] Speaker 01: So I think that... Yeah, just because it was a restriction of crime, it doesn't mean anything's dedicated to the public, right? [00:37:15] Speaker 01: It means that somebody can file a later patent application, a continuation, or... Oh, sure. [00:37:20] Speaker 01: That certainly could have been done. [00:37:21] Speaker 01: Were you getting the dedication of the public program? [00:37:23] Speaker 01: I'm sorry, I missed it. [00:37:24] Speaker 01: Opposing counsel. [00:37:25] Speaker 04: That's Ms. [00:37:26] Speaker 04: Minister's statement. [00:37:27] Speaker 04: Yeah. [00:37:27] Speaker 04: Okay. [00:37:27] Speaker 02: What does 3A and 3B? [00:37:29] Speaker 02: Do they have fastening stems? [00:37:30] Speaker 02: They don't. [00:37:31] Speaker 02: OK. [00:37:32] Speaker 02: And Miss Minister voluntarily said, and so those are dedicated to the public. [00:37:37] Speaker 01: I'm sorry. [00:37:37] Speaker 01: Line 60, 761. [00:37:39] Speaker 02: Page 8, appendix 763, lines 19 through 24. [00:37:44] Speaker 04: Right. [00:37:45] Speaker 04: But that's not necessarily saying those are dedicated to the public, whether or not they have a fastening stem. [00:37:52] Speaker 04: It's just without a fastening stem, they'd be dedicated. [00:37:56] Speaker 02: Effectively what she's saying well, I interpreted what she was saying is that species one and species two were dedicated Fastening stem or new fastening step well we go back to the restriction requirement itself and the restriction requirement tells us that the So the restriction requirement, this is that appendix 173 species one Which is figures to a those are machined fuse and caps species two [00:38:25] Speaker 02: stamped fused end cap and species three and assembled fused end cap comprising a fastening stem. [00:38:30] Speaker 01: Doesn't that maybe go a little bit too far given what their proposed claim construction was and their lawsuit to think that they actually gave up a machined end cap that has a fastening stem? [00:38:49] Speaker 02: Again, I don't know what that would look like and they certainly you know they they could have not stipulated I think that is a factual question, and they stipulated that our structure didn't meet the The you know construction set forth by judge so on page for judge. [00:39:08] Speaker 02: I'm sorry just so wanting on page appendix 20 which was simply a [00:39:13] Speaker 02: a stem that extends from the mounting cuff and into the second cavity of the terminal that receives the conductor and attaches the mounting cuff to the terminal. [00:39:22] Speaker 02: It's a fairly straightforward claim construction in light of the intrinsic record. [00:39:27] Speaker 02: And then they stipulated that that fact question, they stipulated it in our favor. [00:39:35] Speaker 04: But attaches there is used in the sense of [00:39:39] Speaker 02: two pieces, two separate components being attached, right? [00:39:50] Speaker 02: Markman of a markman. [00:39:52] Speaker 02: And they could have argued that later if they chose, I suppose. [00:39:55] Speaker 03: Well, you were there. [00:39:56] Speaker 03: I mean, I guess going back, and this goes back to the point that Judge Stowe was making with your friend. [00:40:01] Speaker 03: Was it your understanding that there was any ambiguity, or was it your understanding that the court's claim construction decided the issue of whether unitary is covered or not? [00:40:15] Speaker 02: I think the court, [00:40:16] Speaker 02: was focused on a nub. [00:40:18] Speaker 03: Can you answer that possibly yes or no, and I'll let you explain it? [00:40:22] Speaker 02: I think the court did think it was two pieces, because you had a nub going into a cavity. [00:40:27] Speaker 02: And that's why the court, for the second claim construction hearing, wanted to know what a cavity was and what it meant to have a stem or a nub going into a cavity. [00:40:39] Speaker 02: What did that mean? [00:40:40] Speaker 02: And so not on appeal here, but in the record is that [00:40:47] Speaker 02: My friends stipulated that a cavity was an open space. [00:40:51] Speaker 02: They also didn't contest the court's construction of into, going into, extending into, that sort of ordinary meaning. [00:41:00] Speaker 02: So I think it all flows, but. [00:41:03] Speaker 04: Well, there was a dispute about that as to whether it included against. [00:41:10] Speaker 02: They said. [00:41:11] Speaker 02: It does. [00:41:12] Speaker 04: They said it does, and you said no. [00:41:15] Speaker 04: Correct. [00:41:16] Speaker 02: I see my time is up. [00:41:19] Speaker 02: Thank you very much. [00:41:20] Speaker 03: Thank you. [00:41:32] Speaker 03: You used all your rebuttal. [00:41:33] Speaker 03: We'll restore two minutes if you need it. [00:41:53] Speaker 00: Thank you, Your Honor. [00:41:55] Speaker 00: Just a couple of points following up on counsel's argument. [00:42:00] Speaker 00: With regard to the district court's understanding of the construction as being limited to a multi-piece construction, further down, I had cited to Appendix Page 23, further down when the district court analyzed the prosecution history and the reconsideration, the court [00:42:23] Speaker 00: stated that it had considered the prosecution history, including Little Fuse's argument that when the examiner rejoined the claims, including claims eight and nine, the examiner was expressing his understanding that claims one and 10 covered both unitary and multi-piece embodiments. [00:42:41] Speaker 00: However, the court found this argument unpersuasive. [00:42:45] Speaker 00: So it's clear that when the court made its Markman ruling, it [00:42:49] Speaker 00: was aware of the fact that claims eight and nine were reciting unitary embodiments. [00:42:55] Speaker 04: Where were you just reading from? [00:42:56] Speaker 04: I didn't catch the page. [00:42:58] Speaker 04: A23. [00:42:58] Speaker 04: A23, yes, which was from the- That's fine. [00:43:01] Speaker 04: Thanks. [00:43:01] Speaker 00: Yeah. [00:43:03] Speaker 00: And so the court understood full well that claims eight and nine were inconsistent with the court's construction of claim one. [00:43:13] Speaker 00: The court rejected the argument that that was a rationale for claim one being broader. [00:43:18] Speaker 00: And the court essentially, on reconsideration, when the issue was brought up that that would mean that claims eight and nine would be invalid for not limiting claim one, the court said, while the court's construction may impact the validity of dependent claims, their validity was not directly before the court. [00:43:36] Speaker 00: Therefore, clarification is not warranted, and reconsideration was denied. [00:43:40] Speaker 00: So the court's ruling in the court's own statements limit the claim to multi-piece construction. [00:43:48] Speaker 00: That was an error. [00:43:50] Speaker 00: That is contrary to the claim language, not dictated or mandated by the specification, and contrary to the prosecution history. [00:43:58] Speaker 03: Thank you. [00:43:59] Speaker 03: Thank you, Your Honor. [00:44:01] Speaker 03: We thank both sides, and the case is submitted.