[00:00:01] Speaker 02:
Our next case is Tippman Engineering LLC versus Innovative Refrigeration Systems Team.

[00:00:09] Speaker 02:
Mr. McCoy, we're ready to hear your arguments.

[00:00:13] Speaker 02:
You have reserved three minutes of time for rebuttal, correct?

[00:00:17] Speaker 01:
Correct, Your Honor.

[00:00:17] Speaker 01:
Thank you.

[00:00:18] Speaker 01:
I guess it's still morning.

[00:00:21] Speaker 01:
Good morning, Your Honors.

[00:00:22] Speaker 01:
Andrew McCoy on behalf of plaintiff, excuse me, Appellant Tippman Engineering.

[00:00:28] Speaker 03:
uh... may please the court uh... we're here today in this appeal because the district court made several fundamental claim construction errors in violation of this court's established precedent let me ask you one question we have here the parent patent the 047 patent and there's been discussion in the briefing about prosecution history relating to that patent yes your honor and then we have the 570 patent which is the one that's now at issue before us

[00:01:00] Speaker 03:
To resolve this, do we really need to consider anything relating to the 047 patent?

[00:01:05] Speaker 03:
Doesn't the case really just turn on what the claims of the 570 patent say and the specification in the 570 patent?

[00:01:17] Speaker 03:
Isn't that really what we're looking at?

[00:01:20] Speaker 03:
In other words, do we need to concern ourselves with the prosecuting history of the 047?

[00:01:26] Speaker 01:
We submit, Your Honor, that the plain and ordinary meaning of the terms in the 570 patent absolutely control, and they should have controlled below.

[00:01:34] Speaker 01:
But the issue with the district court's opinion is that it took the 047 prosecution history and said that there was a disclaimer and applied that disclaimer, even though it also acknowledged that the limitations it read into the claims aren't actually in the claims in the 570 patent.

[00:01:50] Speaker 01:
So I think to answer your question, we agree with you that the plain and ordinary meaning of the 570 claims applies.

[00:01:55] Speaker 01:
And they are not limited to a negative pressure system as a district court.

[00:02:00] Speaker 03:
So you're saying we should just look to the claims and the specification in the 570 patent?

[00:02:07] Speaker 01:
Yes, Your Honor.

[00:02:07] Speaker 01:
We think the claims of the 570 patent are broad enough to cover positive and negative pressure systems.

[00:02:14] Speaker 01:
I acknowledge that a positive pressure system is not expressly discussed in the written description of the 570 patent.

[00:02:20] Speaker 03:
Well, on the contrary, the 570 patent specification seems to talk, and I'm not talking about the claims now, just the specification, seems to talk extensively about negative pressure.

[00:02:36] Speaker 03:
We see in numerous places, you know them as well as I do, references to air being drawn through.

[00:02:42] Speaker 03:
as opposed to being pushed.

[00:02:45] Speaker 03:
And it really does seem to be a case where the drawings, which are part of the specification, which are referenced in the specification, are very compelling in terms of suggesting negative pressure.

[00:03:00] Speaker 01:
Negative pressure is absolutely the embodiment, the illustrative embodiment that is described in both specifications.

[00:03:07] Speaker 01:
The 570 was a continuation of the 047, and no amendments were made to the abstract, no amendments were made to the specification, no amendments were made to the drawing.

[00:03:16] Speaker 01:
The inventors chose in the 047 to claim a negative pressure system.

[00:03:21] Speaker 01:
They disclosed a negative pressure system.

[00:03:24] Speaker 01:
And in the 570, they chose to claim more broadly.

[00:03:28] Speaker 01:
They used direction neutral language.

[00:03:30] Speaker 01:
They did not use words like draw.

[00:03:31] Speaker 01:
They didn't use the express limitation negative.

[00:03:35] Speaker 03:
The specification still has to support what they're claiming.

[00:03:39] Speaker 01:
I do agree with that, but there's also plenty of cases from this court that say we don't limit claims to only the single-disclosed embodiment, which is exactly what this case involves.

[00:03:51] Speaker 04:
Just curious, what is the written description support for a positive pressure system in this specification?

[00:03:59] Speaker 04:
I mean, I know this is not a written description challenge here, but nevertheless, I'm just curious to know what

[00:04:07] Speaker 04:
If you were to get the claim construction you wanted, what would be the basis for saying such a claim as construed broadly would have adequate written description support?

[00:04:20] Speaker 01:
I think it's a great question, Your Honor.

[00:04:22] Speaker 01:
I think this court's precedent in Ariad really squarely addresses that question.

[00:04:27] Speaker 01:
In Ariad, the court said, we've made clear that the written description requirement does not demand examples or actual reduction in practice.

[00:04:34] Speaker 01:
Instead, we look at a multi-factor test.

[00:04:37] Speaker 01:
We look at things like complexity and predictability of the relevant technology, the existing knowledge in a particular field, the predictability of the aspect at issue here.

[00:04:46] Speaker 01:
This is simple technology.

[00:04:47] Speaker 01:
This is simple mechanical technology.

[00:04:49] Speaker 01:
A positive pressure system is literally just rotating fan the other way.

[00:04:54] Speaker 01:
Changing your orientation.

[00:04:55] Speaker 04:
That's true, but we also know from our written description case law that obvious variance of what is disclosed is not enough to be written description support.

[00:05:06] Speaker 04:
So I cannot remember the name of the case, but there was a case 15 years ago about

[00:05:14] Speaker 04:
a sofa console that had certain elements arranged in a certain way, cup holders and things like that.

[00:05:22] Speaker 04:
And there was one arrangement that was disclosed and then the claim was written in a broad way that encompassed other kinds of embodiments and then that claim went down under the written description.

[00:05:36] Speaker 04:
So once again, just assume we know the law.

[00:05:46] Speaker 04:
Now let's just get down to brass tacks looking through your three columns of written description and try to figure out what would be the written description support for a system of applying freezing air

[00:06:05] Speaker 04:
in a positive pressure arrangement.

[00:06:09] Speaker 01:
Chair, Your Honor, the most direct written description support specifically is at Columns 4, Appendix 54, Lines 11 through 22, where... Column 4?

[00:06:20] Speaker 01:
Yes, Your Honor.

[00:06:22] Speaker 04:
Oh, these are the claims.

[00:06:24] Speaker 01:
The paragraph right before the claims.

[00:06:27] Speaker 01:
Where it's stated that a personal learning skill in New York would understand that the objective of this invention can be carried out with modest simple I'll just read here.

[00:06:37] Speaker 04:
Oh, okay The classic boilerplate paragraph that we see at the end of so many written descriptions I would not

[00:06:48] Speaker 01:
Respectfully, Your Honor, I characterized it as boilerplate, but I understand where you're coming from with that.

[00:06:53] Speaker 01:
I would also add that there's no dispute here from the extrinsic evidence.

[00:06:59] Speaker 01:
Innovative's expert and our expert witness evidence that the district court did not consider that positive and negative systems are used interchangeably in this industry and have been for a long time.

[00:07:10] Speaker 01:
There's no dispute at all.

[00:07:12] Speaker 01:
And again, the district court did not consider this.

[00:07:15] Speaker 01:
that blast freezers can be positive or negative and achieve the precise objective of these systems, which is rapid cooling of air.

[00:07:24] Speaker 01:
It doesn't matter if the error goes right to left or left or right.

[00:07:27] Speaker 01:
To achieve the objectives of this invention, that is immaterial.

[00:07:31] Speaker 01:
Now, we think when you consider all of that evidence, when you consider the extrinsic evidence that the district court did not consider, when you consider the simplicity of this technology, when you consider column four, we do think that there would be

[00:07:45] Speaker 01:
And as well as for its precedent, such as the Hill-Rom case, Phillips, and many others, there's no reason to limit it to just the negative pressure embodiment disclosed in the patent.

[00:07:58] Speaker 01:
and described as illustrative.

[00:08:00] Speaker 01:
And I would also add, this is not one of the disclaimer cases where the inventor said, my invention is, or the present invention is, or the present invention only operates with a critical feature of negative pressure.

[00:08:16] Speaker 01:
That's not one of these cases.

[00:08:18] Speaker 04:
Is it your view that there's a rigid rule, that we need to see a statement like that, with that kind of a buzzword and a written description, in order to conclude that there is some kind of disclaimer?

[00:08:33] Speaker 01:
I don't.

[00:08:34] Speaker 01:
I think the score just said that it's not a rigid rule, and you don't need the buzzwords.

[00:08:38] Speaker 04:
But I think it can be implicit.

[00:08:42] Speaker 01:
Well, no, it has to be clear and unmistakable.

[00:08:44] Speaker 04:
Right.

[00:08:45] Speaker 04:
It has to be clear, but it can also be implicit in the sense that it doesn't need to be expressed.

[00:08:53] Speaker 04:
My invention is not a positive pressure system.

[00:08:56] Speaker 04:
My invention is a negative pressure system.

[00:08:59] Speaker 04:
You don't have to say that in a spec in order

[00:09:02] Speaker 04:
use the spec to limit the claim.

[00:09:07] Speaker 01:
That's correct, Your Honor.

[00:09:08] Speaker 01:
But I think in those instances where the court has reached that conclusion, it was repeated statements.

[00:09:12] Speaker 02:
So what is the invention here, in your view?

[00:09:15] Speaker 02:
What's the claim that demands?

[00:09:17] Speaker 01:
The claimed advance is a more efficient blast freezing system that allows the palletized product to be stacked in such a way and made with the interior chamber in such a way that it actually creates a system where you can have more product, you can move more efficiently throughout the warehouse, you can keep the product in the warehouse and freeze it and store it at the same time.

[00:09:43] Speaker 04:
And your patent covers any and all versions of that?

[00:09:47] Speaker 01:
As the claims, I mean, not any and all versions, as I said before, these types of systems have been known.

[00:09:54] Speaker 01:
We think the other limitations in the claims are obviously, you know, what the scope of the claims are and would make them unique over the prior art.

[00:10:05] Speaker 02:
Okay, you're close to your rebuttal time.

[00:10:08] Speaker 02:
Well, now you still have two minutes before you hit your claim to the role.

[00:10:14] Speaker 01:
Um, you, your honors have, you know.

[00:10:18] Speaker 01:
gone right to the issues here.

[00:10:20] Speaker 01:
The one thing I probably haven't mentioned yet, which I think is an important one, is the claim differentiation issue.

[00:10:28] Speaker 01:
There can be no reasonable dispute here that the district court ripped limitations out of dependent claims and read them directly into the independent claims.

[00:10:35] Speaker 01:
There's a presumption that that should not happen, and the district court provided no reason to overcome that presumption.

[00:10:40] Speaker 01:
So that is yet another reason we think the district court erred in construing the claims in this case.

[00:10:47] Speaker 04:
Quick housekeeping question about the warehouse or warehouse space limitation and whether a children has to be

[00:10:55] Speaker 04:
inside the warehouse space or not.

[00:10:59] Speaker 04:
I got confused reading both of your briefs.

[00:11:03] Speaker 04:
But let me put that to the side.

[00:11:04] Speaker 04:
Let's just say if, hypothetically, we were to affirm the claim construction that these claims are best understood as requiring some kind of negative pressure airflow system,

[00:11:18] Speaker 04:
then is that the end of the case?

[00:11:21] Speaker 04:
Or would you say, no, you still have to keep going and review the warehouse-based claim constructions?

[00:11:32] Speaker 01:
I believe we said on the record before the lower court that that would end the case because the accused system is a positive pressure system.

[00:11:39] Speaker 04:
OK.

[00:11:39] Speaker 04:
And then now getting back to the warehouse issue, what's the fight here between the two of you?

[00:11:47] Speaker 01:
The fight here is simply, does the chiller need to be located physically in the warehouse?

[00:11:52] Speaker 04:
Either inside or outside, that's it?

[00:11:54] Speaker 01:
Right.

[00:11:55] Speaker 01:
The limitation that was read from the dependent claim into the independent claim said the chiller is in the warehouse.

[00:12:00] Speaker 04:
OK.

[00:12:01] Speaker 04:
So the district court construed the claim to require the warehouse space to be big enough to include a chiller in the warehouse.

[00:12:13] Speaker 01:
Correct.

[00:12:15] Speaker 01:
After acknowledging that there's actually no reason in the claims to actually do so, the district court nevertheless did that, yes.

[00:12:21] Speaker 01:
I'll reserve the rest of my time for rebuttal.

[00:12:25] Speaker 01:
Thank you, Your Honor.

[00:12:32] Speaker 00:
Gleakin, but thank you.

[00:12:34] Speaker 02:
Did I pronounce that correctly?

[00:12:35] Speaker 00:
It's actually Gleakin.

[00:12:37] Speaker 00:
Although half my family pronounces it the other way, too.

[00:12:39] Speaker 00:
I can't figure it out.

[00:12:40] Speaker 04:
Before you get into the pressure situation, can you just respond?

[00:12:44] Speaker 04:
You were disputing something about the warehouse-based limitation in your brief?

[00:12:49] Speaker 00:
Sure.

[00:12:50] Speaker 00:
You're correct.

[00:12:51] Speaker 04:
You were not happy with the construction of a warehouse, warehouse space that's large enough to include a chiller?

[00:12:57] Speaker 00:
Well, it wasn't quite.

[00:12:58] Speaker 00:
The construction wasn't a warehouse space large enough to include a chiller.

[00:13:02] Speaker 00:
The question was, does the chiller have to be somewhere in the warehouse space, remote from the chamber, this plenum where all of the pallets are?

[00:13:13] Speaker 04:
Don't say plenum.

[00:13:14] Speaker 04:
I get confused.

[00:13:15] Speaker 00:
You want to say chamber?

[00:13:16] Speaker 00:
OK.

[00:13:16] Speaker 00:
Remote from the chamber or not.

[00:13:18] Speaker 00:
And we get that construction from the specification, column one, line 64.

[00:13:24] Speaker 04:
Isn't the construction that the chiller is in the warehouse?

[00:13:29] Speaker 00:
Correct, because it says it's specification.

[00:13:31] Speaker 04:
So then what are you complaining about?

[00:13:33] Speaker 00:
Because this is where I was confused a little bit by the reply as well.

[00:13:37] Speaker 00:
My understanding of the court's instruction is the court said, I'm not going to require the chiller to be in any particular place.

[00:13:44] Speaker 00:
So that's what we believe was in.

[00:13:47] Speaker 04:
I thought the claim construction, though, specifically, it says the chiller in there.

[00:13:55] Speaker 00:
Let me get to it.

[00:13:56] Speaker 00:
Just like that.

[00:13:57] Speaker 00:
Just like that.

[00:14:00] Speaker 04:
There's got to be a chiller.

[00:14:01] Speaker 00:
It says, right, a warehouse-defining warehouse space, this is appendix 8, means a structure containing a space uses a giant freezer that contains a chiller and both freezes and maintains perishable foods or like products.

[00:14:15] Speaker 02:
Does it make a difference if the chiller is in the warehouse or not, whether you have a positive flow or a negative flow?

[00:14:22] Speaker 00:
It makes a difference to the efficiency of the system for a positive pressure system.

[00:14:27] Speaker 00:
Our point eventually is going to be you can't just have a chiller cooling this warehouse space and sucking air in from the top where heat rises, which is the point our expert made, right into the chamber at a positive pressure and pushing it out through the pallets.

[00:14:41] Speaker 00:
You have to have a chiller actually cooling the chamber.

[00:14:45] Speaker 00:
You have to cool that chamber to whatever the air temperature is that's sufficiently below freezing to blast freeze giant pallets of chicken.

[00:14:55] Speaker 00:
You can't just, if you do it, if the chiller is remote from the chamber, a positive pressure system, the whole objective of this invention, doesn't work.

[00:15:05] Speaker 00:
That was one of our arguments.

[00:15:08] Speaker 00:
It's a side argument, because I think Judge Chen.

[00:15:10] Speaker 02:
What happens, the chickens don't chill quick enough, or do they chill not at all?

[00:15:15] Speaker 00:
Well, I mean, obviously time is money in this industry.

[00:15:19] Speaker 00:
And also time, when you're talking about raw uncooked chicken, is also about bacteria growth.

[00:15:25] Speaker 00:
And also the faster you can freeze something, you've all got freezer burn things in your freezer.

[00:15:30] Speaker 00:
The faster that you can just freeze something, the less time it's going to take to have that freezer burn taste.

[00:15:35] Speaker 00:
So you reduce bacteria with the time, you reduce the freezer burn.

[00:15:39] Speaker 00:
But really, at the end of the day, it's the negative pressure system that kills the plaintiff's case here, the appellant's case.

[00:15:47] Speaker 04:
But just so I understand, you're fine with this claim construction at A8?

[00:15:52] Speaker 00:
In A8?

[00:15:53] Speaker 00:
I am fine with it.

[00:15:54] Speaker 00:
But when you just forwarded it.

[00:15:55] Speaker 00:
Correct.

[00:15:55] Speaker 00:
I am fine with that claim construction too.

[00:15:57] Speaker 00:
But I do believe that it is an error in that the chiller must be remote from the chamber.

[00:16:06] Speaker 00:
And that, I was about to say, column one, line 65 says, as shown, chillers are positioned remotely from the chambers.

[00:16:17] Speaker 00:
So there's no equivocal language in the specification that teaches the art here, the invention, is that chillers are positioned remotely.

[00:16:25] Speaker 00:
Judge Shaw, going to your question about the prosecution history, I do think it is certainly relevant, obviously, as extrinsic evidence to look at the prosecution history.

[00:16:35] Speaker 00:
And I think here in the context of the reply arguments, it's even more relevant.

[00:16:40] Speaker 00:
Because what you have in the reply is repeated, and you heard it here from counsel.

[00:16:46] Speaker 00:
The airflow direction, left to right, it's immaterial.

[00:16:49] Speaker 00:
It doesn't matter to our invention.

[00:16:51] Speaker 00:
It's a dispute over a bunch of nothing.

[00:16:53] Speaker 03:
We just have to look at this specification of these claims.

[00:16:58] Speaker 03:
That was my question.

[00:16:59] Speaker 03:
I read the briefs and the material in the record about the 047 patent prosecution.

[00:17:10] Speaker 03:
But it just doesn't seem relevant to me to this issue about negative pressure.

[00:17:14] Speaker 03:
We just have to look at, OK, here's the patented issue, and here are the claims.

[00:17:19] Speaker 03:
Is it negative pressure required?

[00:17:22] Speaker 00:
I don't think that the decision about whether or not to consider the 047 patents, the parent prosecution history, I don't think that decision necessarily impacts what this court should decide.

[00:17:35] Speaker 00:
The district court relied on it a lot.

[00:17:37] Speaker 00:
Oh, that's true.

[00:17:38] Speaker 00:
I agree.

[00:17:38] Speaker 00:
It wasn't an error for it to do so.

[00:17:41] Speaker 00:
And what I was just pointing out was that we now have an argument that who cares?

[00:17:44] Speaker 00:
Negative, positive, pressure, it doesn't matter.

[00:17:46] Speaker 00:
But if you do look at the statements in the parent prosecution history, you see that the applicant at that time was distinguishing the two prior references, Durham and Clayson, they were, the patents.

[00:17:58] Speaker 00:
insisting with italics that these cited patents only claimed a positive pressure system.

[00:18:07] Speaker 04:
The patent examiner went through painstakingly for every limitation in the... But the 047 patent claims actually had very clearly written into the claim the idea of a negative pressure system drawing air into the air chamber.

[00:18:23] Speaker 04:
So of course, they're permitted to make that kind of argument based on the way that claim is written.

[00:18:30] Speaker 04:
This claim doesn't have those express statements of negative pressure or drawing air into the air chamber.

[00:18:38] Speaker 00:
Correct.

[00:18:38] Speaker 00:
But if you look at there is common subject matter, that's why the 047 patent prosecution history is relevant.

[00:18:44] Speaker 00:
But again, I think the specification here, as you just pointed out, the only thing that Tippman can point to

[00:18:50] Speaker 00:
is this boilerplate language, which under the Wang case that we cite, it breaches.

[00:18:54] Speaker 04:
But you know, at the same time, under our claim construction principles, you necessarily need to rely on some notion that there was an implicit disclaimer of anything but a negative pressure system.

[00:19:11] Speaker 04:
And yes, it does disclose a negative pressure system.

[00:19:14] Speaker 04:
But we've also said you don't limit claims to a particular embodiment unless there's some clear indicia otherwise that suggests that you do.

[00:19:26] Speaker 04:
And here, we don't see those magic words like the present invention includes a negative pressure system or the present invention is

[00:19:37] Speaker 04:
Drawing air Through the product and then into an air chamber and then up to an exhaust fan It those statements are not quite there or not there in the spec.

[00:19:50] Speaker 04:
So the next question is What is it about the spec?

[00:19:55] Speaker 04:
that tells us, that requires us to say the inescapable conclusion from reading the spec is that the character of this invention is necessarily a negative pressure system.

[00:20:09] Speaker 00:
Your Honor, and I will point that out, I will say that I think the spec read with the claims and the additional argument we have in the opposition about how

[00:20:20] Speaker 00:
What the claims say about where the air must come from to cool the pallets, to freeze the pallets also dictates a negative pressure, but not focusing on the claims for a minute, just looking at the specification.

[00:20:31] Speaker 00:
Your Honor, if it's column one and it starts at line 54,

[00:20:40] Speaker 00:
So there are various points in the specification.

[00:20:44] Speaker 00:
And we point this out on pages 28 to 22 of our brief where illustrative embodiment is used.

[00:20:50] Speaker 00:
Those are all describing non-inventive features.

[00:20:52] Speaker 00:
But what I'm seeing here is it says, the only significant way to move coal inside the warehouses by going through and around the product on a pallet.

[00:20:59] Speaker 00:
Well, of course, that has to be.

[00:21:02] Speaker 00:
The air is drawn into the chamber, can then be recooled and recirculated or exhausted.

[00:21:06] Speaker 00:
And here's the critical part.

[00:21:08] Speaker 00:
Because the cold air moves around the product prior to entering chamber, it provides an efficient means of cooling.

[00:21:16] Speaker 03:
Where's that exactly?

[00:21:17] Speaker 00:
It is column one, line 57 is where the because starts.

[00:21:25] Speaker 00:
So the word because is pretty important.

[00:21:28] Speaker 00:
And not only that, they chose to frame it as because it moves prior to entering the chamber.

[00:21:35] Speaker 00:
It doesn't say because the cold air moves through the pallets, which would suggest eat away, just prior to entering the chamber.

[00:21:43] Speaker 00:
Well, that is by necessity, of course, a negative pressure system.

[00:21:47] Speaker 00:
And it goes on.

[00:21:48] Speaker 00:
This is where it says, the chilled air passes through the spaces, near or through the cases, in order to enter chamber.

[00:21:56] Speaker 00:
Anyway, in the top of line, column two, line two, first full sentence, continuing this process freezes the product as well as maintains its frozen condition.

[00:22:09] Speaker 00:
And so it talks about the benefits of that particular process.

[00:22:13] Speaker 00:
And it is because the air moves into the chamber.

[00:22:17] Speaker 03:
Now, reading that in conjunction with the claims, and we point to- Do you attach any significance to the statements that are- I'm looking at column one, line, I guess 48.

[00:22:31] Speaker 03:
Cold air produced in a warehouse is drawn through.

[00:22:36] Speaker 03:
And then two lines down, this air cools the product down while being drawn into chamber six.

[00:22:45] Speaker 03:
Oh, absolutely.

[00:22:47] Speaker 03:
And you have, further down, references to drawn.

[00:22:49] Speaker 03:
That suggests negative.

[00:22:51] Speaker 00:
That not only suggests it, it is the definition of a negative system, Judge Shaw.

[00:22:56] Speaker 00:
And what I'm saying is, in conjunction with that, you set that up with drawn, drawn.

[00:23:01] Speaker 00:
And then you say, because it's drawn into the chamber,

[00:23:04] Speaker 00:
prior to others drawn through the palates prior to entering the chamber.

[00:23:09] Speaker 04:
Now, I do think... I'm not sure what to think, though, about the two sentences we've skipped over in that paragraph that lead with the...

[00:23:18] Speaker 04:
phrase in this illustrative embodiment.

[00:23:22] Speaker 04:
Line 46 of column 1.

[00:23:25] Speaker 04:
In this illustrative embodiment, pallets 4 position several high on opposing sides and a long chamber 6.

[00:23:30] Speaker 00:
Sure.

[00:23:31] Speaker 04:
Line 51.

[00:23:32] Speaker 04:
In an illustrative embodiment, and further described here in openings 30 along the periphery of chamber 6 mate with cases 22 on the pallets, I guess your response to these statements of illustrative embodiment that those

[00:23:46] Speaker 04:
Illustrative embodiment statements are confined to the content of those very sentences themselves and don't speak to the larger paragraph where they're talking about drawing air through the spacers within the pallet assembly and then into the air chamber.

[00:24:05] Speaker 00:
That's correct, Your Honor, because if it was more than that, you would think the boilerplate wouldn't be necessary.

[00:24:13] Speaker 00:
It would be a statement like in the advanced cardiovascular case where there was coaxial and dual lumens.

[00:24:19] Speaker 00:
And they said, well, we've described coaxial, but dual lumens would also work.

[00:24:23] Speaker 00:
You would think some sort of positive pressure arrangement would be there in place of boilerplate.

[00:24:28] Speaker 00:
But yes, I do limit that to the actual sentences, and I think

[00:24:33] Speaker 00:
What's important there is that, for example, in illustrative embodiment, as further discussed here, in openings along the periphery of the chamber meet with cases.

[00:24:43] Speaker 00:
There are many ways to mate a case, a pallet, with a chamber wall.

[00:24:49] Speaker 00:
So the word mate doesn't really describe anything.

[00:24:52] Speaker 00:
In the 047, they were talking about pallet guides, and seals, and ceiling-ly engaged.

[00:24:57] Speaker 00:
And so yes, I believe those sentences relate to how it mates in many different ways.

[00:25:02] Speaker 00:
In this case, they mate in a certain way.

[00:25:05] Speaker 00:
So your honor and then finally going to the claims themselves one thing that our expert pointed out And there's no waiver here this this argument was in our experts first of all in the experts report was in your claim construction brief the

[00:25:21] Speaker 00:
This particular argument is not in the claim construction brief, per se.

[00:25:26] Speaker 00:
But it's in the expert report.

[00:25:29] Speaker 00:
We made it at the Markman hearing without objection.

[00:25:33] Speaker 00:
There was an opportunity for cross-examination on what Tippman in its reply brief now says is so plain and common sense.

[00:25:40] Speaker 00:
There was no cross-examination.

[00:25:41] Speaker 00:
There was no movement to exclude at the end of the evidence.

[00:25:43] Speaker 00:
And there was no post-hearing motion to exclude.

[00:25:49] Speaker 00:
The expert's report in Appendix 248, so the court has it, is the particular place where the expert mentions it.

[00:25:57] Speaker 00:
Our opening claim construction brief does argue, of course, that air in the warehouse space has to be set to a desired air temperature, not the chamber.

[00:26:07] Speaker 00:
And this is the reason.

[00:26:09] Speaker 04:
So experts were testifying at the marketing hearing?

[00:26:11] Speaker 00:
They were.

[00:26:12] Speaker 04:
As to the meaning of the claims?

[00:26:13] Speaker 00:
They weren't.

[00:26:15] Speaker 00:
They were permitted to testify.

[00:26:16] Speaker 00:
And I think here, that's proper.

[00:26:17] Speaker 00:
We are not relying solely on expert testimony.

[00:26:20] Speaker 00:
I think that when you focus on the claim language of about, and I only have a minute or so, I think we can get there even without expert testimony, which is this.

[00:26:28] Speaker 00:
If we look just at claim one, it's represented in the other independent claim is about the same.

[00:26:33] Speaker 00:
We have a warehouse defining a warehouse space set to a desired air temperature.

[00:26:39] Speaker 00:
So we know the warehouse space is set to the desired air temperature.

[00:26:43] Speaker 00:
Going down to line 35, one of the apparatus, of course, we know is there's an airflow chamber that has an air inlet and an air outlet.

[00:26:53] Speaker 00:
And then if we go down to line 40, we get to a paragraph that starts with a wall disposed.

[00:27:01] Speaker 00:
And it's talking about the wall of the chamber and the pallets against it.

[00:27:06] Speaker 00:
whereby, and this is line 45, whereby air at the desired air temperature can pass into the airflow pathway of the pallet assembly, thereby transfer heat before the product and the air.

[00:27:20] Speaker 00:
Well, the air at the desired air temperature, if we go back to line 26, is in the warehouse space.

[00:27:29] Speaker 00:
which is not in the chamber.

[00:27:31] Speaker 00:
So in order for air at that desired air temperature to pass through the pallet airflow pathways and thereby transfer heat, it has to be coming from the warehouse space, because the only requirement of the pallet.

[00:27:44] Speaker 04:
The other side retorted that if you have the air in the warehouse space at the desired temperature and then going through the fan using a positive pressure system, that

[00:27:56] Speaker 04:
same air will still be at the desired temperature when it's sitting inside the airflow chamber, because its temperature isn't going to change just by going through the fan.

[00:28:09] Speaker 00:
But first of all, Your Honor, the air in the chamber is not the same temperatures in the warehouse space.

[00:28:15] Speaker 00:
Picture, you have a walled off chamber,

[00:28:17] Speaker 04:
What are you talking about in a positive pressure system?

[00:28:20] Speaker 00:
Correct.

[00:28:20] Speaker 00:
In a positive pressure system, one, it's pulling air from where the heat rises.

[00:28:24] Speaker 00:
And this is what our expert explained.

[00:28:26] Speaker 04:
But that air is in the warehouse space.

[00:28:30] Speaker 04:
That is already preset to a desired temperature.

[00:28:34] Speaker 04:
So whatever temperature, that's all the air in the warehouse, not just

[00:28:41] Speaker 04:
the air along the floor, it also necessarily includes the air near the top of the warehouse.

[00:28:46] Speaker 00:
Maybe, but I think it is common parlance that, of course, air is going to rise.

[00:28:50] Speaker 00:
It's always going to be warmer up top.

[00:28:52] Speaker 00:
And I understand that the idea is you can set it.

[00:28:54] Speaker 00:
Maybe you put your thermometer at the top.

[00:28:57] Speaker 00:
That's an immensely inefficient way.

[00:29:00] Speaker 00:
I mean, imagine if your house was, you know, you want to take it during the summer.

[00:29:03] Speaker 00:
All of the air from your house.

[00:29:05] Speaker 04:
We have to live in a certain fiction when we're just looking at the climate.

[00:29:08] Speaker 04:
Correct.

[00:29:08] Speaker 04:
be worrying about all these other issues?

[00:29:12] Speaker 00:
But Your Honor, you'd be right in a static system.

[00:29:14] Speaker 00:
If things were just cooled and sat there.

[00:29:18] Speaker 00:
But that's not the way it is.

[00:29:19] Speaker 00:
There's a massive amount of airflow.

[00:29:21] Speaker 00:
In a positive pressure system, you're taking the air

[00:29:25] Speaker 00:
And you're pushing it through warm pallets.

[00:29:28] Speaker 00:
And so you're filling the airway aisles, and I don't want to take too much time, with warm air.

[00:29:32] Speaker 00:
And that's the problem.

[00:29:33] Speaker 00:
You can't store frozen pallets of product when you're pushing warm air into the aisles.

[00:29:39] Speaker 00:
Thank you.

[00:29:57] Speaker 01:
Your Honor, Judge Chen, you nailed it right on the head with some of your questions here for my opposing counsel.

[00:30:05] Speaker 01:
This is a system where

[00:30:07] Speaker 01:
It is continuously moving air, hours and hours at a time, to maintain these products frozen.

[00:30:13] Speaker 01:
This isn't just one blast shot of air, where warm air suddenly rises and we have nowhere to go.

[00:30:19] Speaker 01:
In column two, if you just keep reading where my opposing counsel was reading, continuing this process freezes the products as well as maintains its frozen condition.

[00:30:29] Speaker 01:
The experts also talk about it in their declarations, appendix

[00:30:33] Speaker 01:
28 through 230, for example, innovative expert talks about how these systems operate.

[00:30:39] Speaker 01:
This isn't just a little snapshot in time where air is just puffed into a chamber and it freezes the product.

[00:30:45] Speaker 01:
This is a continuous system.

[00:30:46] Speaker 01:
It's a closed system where air is constantly flowing.

[00:30:49] Speaker 01:
There's no limitation in these claims to the precise location of the inlets and the outlets, like there was in the 047.

[00:30:57] Speaker 01:
There's no limitations to the precise location of the fans.

[00:30:59] Speaker 01:
There's no limitations to the precise location of the chillers.

[00:31:03] Speaker 01:
These are broader claims.

[00:31:05] Speaker 01:
And when we're looking at column one that my opposing counsel was drawing to the court's attention, that was mentioned in their brief,

[00:31:12] Speaker 01:
What seems to be overlooked here is that is describing a negative pressure system.

[00:31:17] Speaker 01:
It is not, however, limiting this invention to that system.

[00:31:22] Speaker 01:
It doesn't say the only way the objective of this system is accomplished is because the cold air moves around the product before entering the chamber.

[00:31:31] Speaker 01:
It's just simply describing a negative pressure system.

[00:31:34] Speaker 01:
So unless the court has any additional questions for me, I think we have covered all of the key points here.

[00:31:41] Speaker 01:
But I'll just quickly summarize them.

[00:31:43] Speaker 01:
This is not a case where we should be limiting the case to the illustrative embodiment.

[00:31:46] Speaker 01:
The Hill-Rom case is directly on point.

[00:31:49] Speaker 01:
When you look at the written description factors and area, this is simple technology.

[00:31:53] Speaker 01:
There's no dispute from the experts in this case that positive and negative pressure systems were known.

[00:31:58] Speaker 01:
There's no dispute that positive and negative pressure systems accomplished

[00:32:02] Speaker 01:
the objectives of this invention.

[00:32:05] Speaker 01:
And there's no reason to limit the claims as the district court did.

[00:32:10] Speaker 01:
It was improper application of decades of disclaimer precedent.

[00:32:15] Speaker 01:
And we ask that the court vacate the claim constructions, reverse and remand.

[00:32:20] Speaker 02:
OK, thank you.

[00:32:21] Speaker 02:
We thank all the parties for their arguments.