[00:00:00] Speaker 01: beginning with number 221049, Assatec, Denmark, versus Vidal. [00:00:07] Speaker 05: Good morning, Your Honors, and may it please the Court. [00:00:11] Speaker 05: The two main issues on appeal in this case are, number one, whether the separately listed claim elements, double-sided chassis and impeller cover in claim one of the 355 patent are entitled to a legal presumption [00:00:27] Speaker 05: that these elements are distinct components of the patented invention. [00:00:32] Speaker 03: Can I just ask you a question about a related IPR final written decision that the PTO issued last month on this very same patent, on these very same claims? [00:00:46] Speaker 03: Are you familiar with that final written decision? [00:00:49] Speaker 05: I know that that final written decision has come out. [00:00:52] Speaker 05: Yes, Your Honor. [00:00:53] Speaker 03: Right. [00:00:53] Speaker 03: And it also invalidated all of these claims, primarily based on the same prior art reference, Duan, right? [00:01:01] Speaker 05: Yes, Your Honor. [00:01:03] Speaker 03: And I noticed that you, the patent owner, did not file a patent owner response in that IPR. [00:01:10] Speaker 03: Is that right? [00:01:11] Speaker 05: Yes, Your Honor. [00:01:13] Speaker 03: So will your client be filing a notice of appeal on that? [00:01:19] Speaker 03: It doesn't appear that you resisted the theory there based on Gwan and then a final written decision invalidated the claims. [00:01:29] Speaker 05: Yes, Your Honor. [00:01:30] Speaker 05: And we made the client has not made a decision yet. [00:01:33] Speaker 05: The underlying case, the district court case, for this appeal had settled. [00:01:42] Speaker 05: And so the client is still considering what to do with the other set of IPRs. [00:01:47] Speaker 03: But I suppose if your client doesn't file a notice of appeal in that other case, then after that time for appeal elapses, that would moot this appeal, would it not? [00:02:01] Speaker 05: Yes, Your Honor. [00:02:02] Speaker 03: OK. [00:02:06] Speaker 03: Is there a reason why you didn't file a patent owner response? [00:02:10] Speaker 05: I would say just limited client resources, Your Honor. [00:02:14] Speaker 03: Okay. [00:02:15] Speaker 03: Because when I look at the mapping of Dwan to the, the proposed mapping of Dwan's elements to the claims here, that looks very clean and straightforward. [00:02:28] Speaker 03: How the lower cover 225 has an inlet and it also has an outlet that's along the perimeter of the cover 225. [00:02:36] Speaker 03: You're familiar with all this. [00:02:38] Speaker 05: Yes, Your Honor, because that same mapping was also a petitioner, in this case, had tried to bring in that alternative mapping in the reply. [00:02:48] Speaker 05: And the PTO properly did not consider that, because it's an entirely new mapping, new theory that was brought for the first time in the reply. [00:02:56] Speaker 05: So I'm familiar from that, because I work on this one. [00:02:59] Speaker 03: Well, you're also the counsel of that other case, too. [00:03:02] Speaker 03: So obviously, you're familiar with the theory. [00:03:05] Speaker 05: Yes, Your Honor. [00:03:07] Speaker 05: In the case that is on appeal here, ACTEX expert disagreed that the cutout or the notch that's on the lower cover is an outlet or not. [00:03:18] Speaker 05: ACTEX expert disagrees that's an outlet, but that's a different issue. [00:03:25] Speaker 05: That issue was properly not considered by the PTAB in the case that it's on appeal here. [00:03:32] Speaker 01: And just what is the due date of a notice of appeal [00:03:37] Speaker 01: a newly decided IPR? [00:03:40] Speaker 05: It's coming up in a week or two. [00:03:47] Speaker 05: So we will likely file a notice. [00:03:51] Speaker 05: You have 63 days. [00:03:54] Speaker 05: Yes, Your Honor, we do. [00:03:56] Speaker 05: And I think the final decision came out about [00:04:00] Speaker 05: about a month or five weeks ago, I believe. [00:04:03] Speaker 05: So, so we have, we have a few more weeks to file the notice of appeal. [00:04:06] Speaker 03: So if I were to try to look at, try to find something somewhere about your expert's view about how that cutout is not actually an outlet on the cover of Dwan, where would I find that? [00:04:20] Speaker 03: Is that in this record or is it in that record? [00:04:23] Speaker 05: It's, it's in the record of this appeal, Your Honor. [00:04:26] Speaker 03: Do you have the site? [00:04:30] Speaker 05: Yes, Your Honor. [00:05:07] Speaker 05: Your Honor, may I look the side up and give you that during my rebuttal time? [00:05:15] Speaker 05: I know it's in the record because it was in his deposition testimony. [00:05:18] Speaker 05: Deposition testimony. [00:05:20] Speaker 03: OK, very good. [00:05:22] Speaker 03: I know you have arguments for this appeal, so please go ahead. [00:05:26] Speaker 05: Sure, Your Honor. [00:05:27] Speaker 05: And so as I was saying, the two issues, the first issue is [00:05:33] Speaker 05: if a legal presumption should apply. [00:05:35] Speaker 05: And the second issue is if the court does find that there is a legal presumption of structural distinctness, then whether that presumption is overcome by the intrinsic record of the 355 patent. [00:05:47] Speaker 05: So on the first issue of whether a presumption should apply, this court in many decisions has found that if claim elements are listed separately, then there is a presumption of structural distinctness. [00:06:03] Speaker 05: Those cases are Becton-Dickinson, Gauss v. Conair, Kyocera. [00:06:08] Speaker 01: They have all found that... Do those talk about complete structural separation? [00:06:14] Speaker 01: The word distinct does not necessarily imply non-overlap, does it? [00:06:25] Speaker 05: Gauss v. Conair and Becton-Dickinson did involve partial overlap, and the court had found that [00:06:32] Speaker 05: that no overlap is allowed. [00:06:34] Speaker 05: So distinct portions of the prior art structure have to be mapped to distinct claim elements. [00:06:41] Speaker 05: And I want to be clear that AC Tech is not arguing that the element should be mapped to physically separate, meaning detached, structures of the prior art device. [00:06:51] Speaker 05: We are not arguing that. [00:06:52] Speaker 05: The argument is that if there are distinct claim elements, they should at least be mapped to distinct portions of the prior art device. [00:06:59] Speaker 05: And this code made it very clear in Powell v. Home Depot, where the two separately listed elements, the cutting box element and the dust collection structures, were mapped to distinct portion of a unitary structure. [00:07:14] Speaker 05: So the front part was mapped to one element. [00:07:16] Speaker 05: The rear part was mapped to another element. [00:07:18] Speaker 05: And the court found that that was proper mapping and there was no violation of Becton Dickinson. [00:07:23] Speaker 05: But here it's the same portion of Douan's Accommodation Chamber 21 has been mapped to both the double-sided chassis and the impeller cover. [00:07:35] Speaker 02: What if those things actually were simultaneously the chassis and the cover? [00:07:42] Speaker 02: The same portion acted as both, functioned as both things. [00:07:50] Speaker 05: Under the intrinsic record of the case, that portion doesn't have to work for both the double-sided chassis and the impeller cover. [00:07:58] Speaker 02: But hypothetically, if it did, if we looked at the prior art reference and we could see they're referring to this segment as both a chassis and a cover, why wouldn't that be okay? [00:08:10] Speaker 05: Because of the presumption, Your Honor. [00:08:12] Speaker 02: Well, that's what I'm curious about. [00:08:13] Speaker 02: I know our case law uses that word, legal presumption, and we have all this stuff about it. [00:08:17] Speaker 02: Where does that come from? [00:08:18] Speaker 02: I mean, this is just claim construction, right? [00:08:20] Speaker 02: We just look at the language of the claim and see what it means. [00:08:23] Speaker 02: When you talk about presumptions, you're usually talking about burden shifting and all that kind of stuff. [00:08:29] Speaker 02: And I don't understand where any of that comes legally doctrinally out of when we're just talking about claim construction. [00:08:39] Speaker 05: Even cases that precede Becton Dickinson have always looked to see what the specification teaches when there are separately listed claim elements. [00:08:49] Speaker 02: Sure, I get that. [00:08:50] Speaker 02: Linguistically, if you look at a list and you have three different things and they're referred to in three distinct ways, [00:08:58] Speaker 02: That sounds like they are three distinct things. [00:09:02] Speaker 02: But what I'm trying to probe and get at is why, because of the way you do just interpretation of language, that means you attach a legal presumption that somehow shifts burdens. [00:09:16] Speaker 02: Where does that come from? [00:09:22] Speaker 05: Your Honor, in all canons of claim construction, we do have to look at the specifications. [00:09:30] Speaker 05: So maybe the legal presumption is basically just saying, go look at the specifications to see if these are the same components. [00:09:37] Speaker 02: Well, if that's the case, though, why is there? [00:09:39] Speaker 02: Because I think you're calling this a rebuttable presumption, which suggests burden shifting to me. [00:09:44] Speaker 02: That's what I don't understand. [00:09:45] Speaker 02: And we don't have to belabor [00:09:47] Speaker 02: the point, because I know it's in our case law, but it makes little sense to me that there's some kind of burden shifting presumption when what you're saying is you go look at the claim language in the context of the specification and determine on a case by case basis what that means. [00:10:03] Speaker 02: Here you may be right that if you look at this claim language, it suggests two different things and that absent evidence to the contrary, they shouldn't be termed the same thing. [00:10:15] Speaker 02: On the other hand, [00:10:17] Speaker 02: Because of the way the prior art may be written, maybe they do perform the same function, even if they're referred to as two different things. [00:10:27] Speaker 05: They don't necessarily have to, Your Honor, because the way the claim is written is that a pump chamber is defined at least in part by the double-sided chassis and the impeller cover. [00:10:39] Speaker 05: So the claim language suggests that there could be a third element. [00:10:43] Speaker 05: So the double-sided chassis could be on the top, the impeller cover, and the bottom. [00:10:47] Speaker 05: And there could be a third element, like a circumferential wall, tying them together. [00:10:51] Speaker 05: So the double-sided chassis and the impeller cover do not have to contact. [00:10:55] Speaker 05: They do not have to overlap or share features or do anything in order to define [00:11:01] Speaker 05: the pump chamber and the specification supports that. [00:11:05] Speaker 05: So even if you go with the presumption that the separately listed claim elements get a presumption and now we have to look at... So if you had an accused device where the chassis and the cover were the same piece, then it wouldn't infringe? [00:11:24] Speaker 05: It should not infringe. [00:11:25] Speaker 05: It should not infringe your honor. [00:11:27] Speaker 05: And because the specification makes it very clear that these two elements do not have to overlap or share features to perform their functions. [00:11:36] Speaker 05: In fact, figure 17 and 20 of the 355 patent, which are representative embodiments of the patented invention, clearly show the double-sided chassis, which is formed by the [00:11:50] Speaker 02: Would that be the case even if in the Q's device the double-sided chassis acted, functioned, the same exact portion functioned as both the chassis and a cover? [00:12:07] Speaker 02: In your view, if the Q's device, because it's constructed differently, [00:12:12] Speaker 02: has the cover being simultaneously part of the chassis, then it wouldn't infringe your patent. [00:12:18] Speaker 05: It would not. [00:12:19] Speaker 05: And EC-TECH has not accused any device in which a single component performed both the functions. [00:12:26] Speaker 05: That has never been the case. [00:12:29] Speaker 05: And so simultaneously, the prior art should not also be mapped in a way that the two elements would overlap or have shared features. [00:12:38] Speaker 05: And so going back to the embodiments in the, in the specification, your honor, there's, there's no embodiment that teaches overlap or sharing of features between these two elements. [00:12:51] Speaker 01: You don't have an argument for the non-overlap result that you've made that's independent of the argument of a presumption. [00:13:02] Speaker 01: Your only argument is there is a presumption. [00:13:04] Speaker 01: There's not enough to overcome it. [00:13:07] Speaker 01: Not that putting aside a presumption, if we looked at the claim language and the spec, overlap would also be impermissible under that form of analysis. [00:13:20] Speaker 05: Yes, Your Honor. [00:13:21] Speaker 05: Even if we don't apply a presumption, if we just look at the claim and we are doing just pure claim destruction, we would still have to look at the specification. [00:13:29] Speaker 05: And the specification very clearly [00:13:32] Speaker 05: teaches that these two elements are separate and distinct components. [00:13:36] Speaker 05: There is no teaching anywhere in the intrinsic record prosecution history specification that shows overlap or sharing of features between the double-sided chassis and the impeller cover. [00:13:46] Speaker 01: So even if we did a claim language is a little bit fuzzier about that, right? [00:13:51] Speaker 05: The claim language clearly says that states this as distinct components. [00:13:56] Speaker 05: And yes, your honor, this is what the director has argued. [00:14:00] Speaker 05: And the PTAB had said that nothing in the claim language excludes the no overlap or the claim doesn't require [00:14:11] Speaker 05: the two elements to be separate. [00:14:13] Speaker 05: But this is where the presumption comes in. [00:14:15] Speaker 05: Whether the claim excludes or not, that is not the proper inquiry if we look at the presumption of Becton Dickinson. [00:14:21] Speaker 05: And just yesterday, Your Honor, this court's decision in Google EcoFactor reaffirmed that there is a presumption of structural distinctness when elements are [00:14:33] Speaker 05: listed separately in the claim. [00:14:35] Speaker 05: So if we apply the presumption, we shouldn't even consider whether the claim excludes anything or not because that's where the presumption comes in. [00:14:43] Speaker 05: And then we look at the specification to see if the presumption of distinctness has been overcome or not. [00:14:51] Speaker 05: And here it is not because nothing in the specification teaches that there is overlap between the two elements. [00:15:00] Speaker 01: You have run out of your time, but I will restore the rebuttal time. [00:15:06] Speaker 01: Sure, Your Honor. [00:15:07] Speaker 01: Thank you from the other side. [00:15:08] Speaker 01: Thank you. [00:15:08] Speaker 01: Thank you, Your Honor. [00:15:16] Speaker 04: May it please the Court? [00:15:18] Speaker 04: I view this case as focused on claim construction, and when I look at what the other side is saying, they're saying that [00:15:27] Speaker 04: the claim recites these two elements and because the specification shows these two elements as distinct structures in the figures and the embodiments, then that's how we should read it. [00:15:40] Speaker 04: But that to me sounds like limiting the claims, using the embodiments of the specification to limit the claims, which is one of the [00:15:51] Speaker 04: basic rules of claim construction ought to do. [00:15:54] Speaker 01: Isn't this presumption that's been relied on another one of the basic rules of claim construction? [00:16:01] Speaker 01: I don't believe so. [00:16:03] Speaker 01: We're not going to be ranking basic rules, right? [00:16:06] Speaker 01: I mean, there's undeniably precedent that talks about how the use of distinct terms, different terms in a claim carries some sort of [00:16:20] Speaker 01: but call it a presumption, whatever that may mean, that those are referring to at least distinct things, possibly not entirely separate things, but at least distinct things. [00:16:33] Speaker 04: It is true that in the Kyocera decision, this court [00:16:38] Speaker 04: use the word presumption here. [00:16:41] Speaker 04: But as I hopefully outlined in the brief. [00:16:45] Speaker 01: Well, even taking out a presumption saying ordinarily would be taken to imply whatever. [00:16:52] Speaker 04: I don't think that there are cases from this court that don't look at it under that lens. [00:16:58] Speaker 04: I mean, if you look at the linear tech case, even the Gauss case, they don't come at this from, you know, [00:17:09] Speaker 04: that two terms by themselves mean different structure. [00:17:13] Speaker 04: They come at this in a typical claim construction way. [00:17:16] Speaker 02: But two terms by themselves means different things, usually. [00:17:19] Speaker 04: Correct. [00:17:20] Speaker 04: And this court has said that the fact that two terms should have different meanings is different than two terms having two terms must have different structure. [00:17:29] Speaker 02: But if they mean different things, don't they usually mean when we're talking about physical objects? [00:17:36] Speaker 02: I mean, if we're talking about functional language, then maybe there's a different thing. [00:17:40] Speaker 02: But if we're talking about physical objects and they use two different names and putting aside this presumption stuff, I don't know where it comes from either. [00:17:48] Speaker 02: But just as a matter of language, when you say, [00:17:54] Speaker 02: defined at least in part by an impeller cover and a double-sided chassis, the plain language to me suggests that the cover and the chassis are not the same thing. [00:18:05] Speaker 04: Well, I think then you're getting into how things are manufactured and is it really the case that a pump here where the cover is injection molded so it's all one piece is going to avoid infringement? [00:18:22] Speaker 04: It just seems [00:18:23] Speaker 04: strange to me that you would say whether these things are two separate pieces that are attached with screws or whether they're formed as a single piece dictates infringement here. [00:18:38] Speaker 02: But that's how they described it. [00:18:39] Speaker 02: Isn't that all a patent law that there's infringement or not based upon how they've described their invention? [00:18:45] Speaker 02: And your friend suggested that if they did act simultaneously as the same structure, that this wouldn't infringe this patent. [00:18:53] Speaker 02: Because at least being consistent, she's arguing that these are two separate things. [00:18:59] Speaker 02: So one that acts functionally as the same two parts doesn't infringe. [00:19:05] Speaker 04: Well, I think that even if you start with the belief that two separately recited elements typically connote separate structure, when you look at the claim language here, and this is the point that the board made, that the double-sided chassis has an individual function, the impeller cover has an individual function, and then the two of them have a shared function of partially defining the pump chamber. [00:19:33] Speaker 04: And the overlapping structure here only operates for that shared function. [00:19:42] Speaker 04: The double-sided chassis needs to separate the stator from the pump chamber. [00:19:48] Speaker 04: And that's done with just the accommodation chamber in Dwan. [00:19:55] Speaker 02: We're under Phillips here, right? [00:19:56] Speaker 02: We're not under BRI? [00:19:58] Speaker 04: Yes. [00:19:58] Speaker 04: You might have a better argument if you were under BRI. [00:20:03] Speaker 04: I don't see how, you know, if you look at the cases finding that the claims require separate structure, I mean, there's much more. [00:20:13] Speaker 04: I mean, Becton Dickinson finds that it would have been nonsensical in the context of that patent to not require separate structure. [00:20:24] Speaker 04: Gauss says that requiring separate structure would defeat the purpose of the invention there. [00:20:30] Speaker 04: We don't have anything like that here. [00:20:32] Speaker 04: There's barely a mention of these parts in the specification. [00:20:36] Speaker 04: And while, yes, the specification shows them as separate, there's nothing in the specification indicating that that's a must or a necessity. [00:20:46] Speaker 04: And the fact that these share a function. [00:20:49] Speaker 02: Isn't it still the most natural reading of this? [00:20:53] Speaker 02: sure i mean i i i think that you know the world we do in clinton i mean this is the problem and i i understand when you call physical things by two different names and put them in a list and separate them that suggests to me that there are two different things that they're not one thing functioning as two different things if you'd met that you would have described in a different way [00:21:20] Speaker 04: I just think that you can't just focus solely on the claims. [00:21:25] Speaker 04: Let me step back. [00:21:28] Speaker 04: Yes, they're identified as separate things, but the claims also identify the fact that they share a function. [00:21:34] Speaker 04: And Gauss specifically says that in that case, where does it say they share a function? [00:21:42] Speaker 02: They're part of the pump chamber, but they're specific. [00:21:46] Speaker 02: They do different things. [00:21:49] Speaker 02: is a cover and one is a chassis. [00:21:53] Speaker 04: The function is partially defining the pump chamber. [00:21:57] Speaker 04: I mean, I see that. [00:21:58] Speaker 04: That's part of their job. [00:21:59] Speaker 02: That's the overall thing. [00:22:01] Speaker 02: And then they're saying it's made up of these different parts. [00:22:06] Speaker 04: And the parts together have to make up the pump chamber. [00:22:11] Speaker 04: So they work together. [00:22:12] Speaker 04: They function together to do that. [00:22:16] Speaker 04: And that's the point the board made where [00:22:19] Speaker 02: You know, hypothetically, if we have basically the same words here, but this was just structured a little differently, and it says, you know, it claims a pump chamber, which is made up of an impeller cover, an impeller, and a chassis, and it lists them like that, would that change your argument? [00:22:43] Speaker 02: That looks a lot more like the cases where we've said, [00:22:46] Speaker 02: those, the way that's written, make it three different things. [00:22:51] Speaker 04: I think if it's just listing the items and not defining them by what functions they perform, certainly that would be a tougher case than we have here. [00:23:04] Speaker 02: But I... Well listen, that's what it's showing here. [00:23:08] Speaker 02: It's just not listing them in that way, but it's not saying acting as an impeller cover and a chassis. [00:23:14] Speaker 02: It's saying defined in part by cover and chassis. [00:23:21] Speaker 04: And that's what they... I mean, that's identifying their function. [00:23:27] Speaker 04: It's not telling you [00:23:29] Speaker 04: what they look like structurally or whether they're two separate pieces or not, it's just saying that those two elements together at least partially form the pump chamber. [00:23:41] Speaker 04: So I don't see why the claim written this way excludes structural overlap. [00:23:49] Speaker 04: And I think that if you're going to give the claim language its full breadth, you can't [00:23:57] Speaker 04: adopt a construction that requires structural separateness. [00:24:02] Speaker 03: So just so I understand, if I can isolate down your argument, is it your understanding of the law that as a starting point when we're examining a claim, different claim terms [00:24:19] Speaker 03: the expectation is that they're going to be distinct structures. [00:24:25] Speaker 03: And there's not going to be shared overlapping structure unless there's something in the claim language itself or the specification that provides a clue that there can be overlapping structures amongst two different claim elements. [00:24:41] Speaker 03: And here, in your view, the defined, at least in part, language in this claim is what gives [00:24:49] Speaker 03: the patent board the clue, the necessary clue to reach the conclusion that there can be overlapping structure between these two elements of the cover and the double-sided chassis. [00:25:01] Speaker 03: Is that a fair summation of your argument? [00:25:04] Speaker 04: That's a fair summation of kind of my second argument where I mean under what you said I think you would be applying something similar to what this course called the presumption but I think [00:25:15] Speaker 04: Initially, if you look at the pre-Beckton cases, you don't see this presumption applied. [00:25:21] Speaker 04: The court comes in without this preconceived notion that two elements mean two different structures, and they just look at the intrinsic record to tell them what's going on here. [00:25:37] Speaker 03: What I'm trying to figure out is what if there's a situation where there are no clues? [00:25:43] Speaker 03: in the claim language or the specifications, the intrinsic evidence? [00:25:46] Speaker 03: And then which way does that tip? [00:25:49] Speaker 03: I guess you seem to be suggesting that, well, anything goes in those situations. [00:25:55] Speaker 03: And we can. [00:25:57] Speaker 03: The claim, therefore, permits this sort of overlapping structure between two claim terms. [00:26:03] Speaker 03: Whereas the other side, and I guess the cases we have that use the word presumption, would suggest the opposite. [00:26:11] Speaker 03: That's correct. [00:26:13] Speaker 03: I mean, you don't have any precedent you can point to that says when there are no clues in the claim language or the specification, then the baseline assumption is that you can't have overlapping structures for two different claims. [00:26:35] Speaker 04: There's no case that expressly says that, but if you look at the cases that we cite, the pre-Beckton cases that we cite, they essentially [00:26:43] Speaker 04: approach the issue that way. [00:26:45] Speaker 04: I mean, the linear tech case is a clear example where the claim required a second circuit and a third circuit, and... Wasn't there something in the claim language or the spec that suggested that there could be some kind of shared structure between those circuits? [00:27:04] Speaker 03: Just, I have it right here. [00:27:10] Speaker 04: So, I mean, what they said was that [00:27:13] Speaker 04: What the court in that case said was, there is nothing in the claim language or specification that supports narrowly construing the terms to require a specific structural requirement or entirely distinct second and third circuits. [00:27:27] Speaker 04: Rather, the second and third circuits must only perform their stated functions. [00:27:31] Speaker 04: So that, to me, reads like almost a presumption the other way. [00:27:35] Speaker 04: There's nothing precluding them from sharing structure, so that's permissible. [00:27:43] Speaker 02: I'm not familiar with the details of the case, but even what you're saying, it sounds to me like you still acknowledge that there has to be two different circuits, even if they're sharing the same structure to perform those two different circuits. [00:28:03] Speaker 02: Which goes back to that same basic linguistic rule that if you refer to two different things, they're two different things. [00:28:12] Speaker 04: In linear case, it was that the second circuit and the third circuit shared some structure, which is what we have here. [00:28:22] Speaker 04: You still have the impeller cover and a double-sided chassis that perform their individual functions, but they share some structure that performs the shared functions. [00:28:33] Speaker 04: And I think, going back to Judge Shen, I think that even if you want to apply this presumption, I think the presumption is overcome because of this shared functionality. [00:28:46] Speaker 02: The problem I have here is there's nothing in the specification that supports, and I know we don't limit things to the specification, but when it's unclear like this, [00:28:56] Speaker 02: you seem to want to say it's always going to be shared structure and they want to see it's never but I think we have to do our best with the language of the claim in light of the specification and here there's nothing to suggest that this is shared structure I mean I know you want to argue this language suggests that it is but let's just assume I don't see anything in the language of the claim that suggests this is shared that to me this claim looks like it's separate structure then [00:29:26] Speaker 04: I would agree that there's nothing in the specification indicating one way or the other, other than the fact that these two elements are shown as separate pieces. [00:29:39] Speaker 04: So if you don't agree that the shared functionality identified in the claim language isn't good enough, then that [00:29:54] Speaker 04: That goes against what the board found. [00:29:55] Speaker 04: And I think that we have a claim construction problem, at least with our case. [00:30:04] Speaker 04: But I think that the shared functionality in the claim language makes sense to me. [00:30:08] Speaker 04: What the board said makes sense to me that if two elements are together defining a pump chamber, then it makes sense that there could be some structural overlap and that there's some shared functionality. [00:30:24] Speaker 04: I guess I'm out of my time. [00:30:26] Speaker 04: I would just like to say at the end that we made an argument that you can affirm based on looking at these in a different way than the petitioner mapped them. [00:30:44] Speaker 04: I understand that's not something the board found, but it seems incredibly straightforward that the lower cover [00:30:53] Speaker 04: 225 in Duan meets all of the requirements of the impeller cover. [00:31:00] Speaker 04: And the accommodation chamber in Duan meets all of the requirements. [00:31:03] Speaker 02: How can we do that? [00:31:04] Speaker 04: I mean, that's the generic problem, isn't it? [00:31:08] Speaker 04: It's a claim construction question. [00:31:09] Speaker 04: I agree that it's not our first argument. [00:31:15] Speaker 01: What you just said about the prior art can't be a claim construction question. [00:31:21] Speaker 04: Well, I think that, I mean, [00:31:23] Speaker 04: I guess if appellants going to dispute that the lower cover 225 in Duan does not meet the requirements of the impeller cover, I guess that's a factual question. [00:31:37] Speaker 04: But it doesn't seem like a very hard factual question to me. [00:31:40] Speaker 04: And I'm surprised to hear them contest that. [00:31:48] Speaker 04: As we laid it out, how we laid it out in our brief, I think that it is clearly satisfied. [00:31:54] Speaker 03: Then your quote, where you say, there's nothing in the claim language respect that supports narrowly construing the terms to require specific structural requirement or entirely distinct second and third circuits. [00:32:07] Speaker 03: Then two sentences down, it says, in fact, the 258 patent specification expressly discloses that the second circuit and the third circuit [00:32:16] Speaker 03: can share common components. [00:32:19] Speaker 03: So that's what I was referring to. [00:32:21] Speaker 04: There's nothing in the specification here that is similar to that. [00:32:29] Speaker 04: Linear tech doesn't approach this from a... I think it's less about the facts here, more about the concept that linear tech doesn't approach this with a presumption of one way or the other. [00:32:43] Speaker 04: It's just, let's look at the claim, let's look at the spec, and let's see what they tell us about whether these two elements must be distinct or can share structure. [00:32:57] Speaker 01: Thank you. [00:33:09] Speaker 05: Your honor had asked during my opening argument, so a site for where the deposition testimony about whether the cutout can perform as an outlet or not. [00:33:22] Speaker 05: It's in the deposition testimony of is a tax expert. [00:33:28] Speaker 05: But I'm not sure if all those pages are in the appendix pages. [00:33:32] Speaker 05: I have the deposition sites. [00:33:34] Speaker 05: It's on page 80, 11 to 22. [00:33:38] Speaker 05: paid 63 to 8, but I don't have the appendix. [00:33:41] Speaker 01: Would that have been filed in the PTO or maybe not even there? [00:33:46] Speaker 05: It was filed in the PTO, Your Honor. [00:33:48] Speaker 05: Yes, Your Honor. [00:33:49] Speaker 05: The whole deposition transcript was filed. [00:33:51] Speaker 03: So, okay, in this IPR, it's all there? [00:33:56] Speaker 05: In this IPR, it's all there, Your Honor. [00:33:58] Speaker 03: And why does he say the cutout isn't an outlet along the perimeter? [00:34:02] Speaker 05: Because there is no disclosure in Duan that there is water actually exiting the pump chamber through that cutout. [00:34:10] Speaker 05: It's mostly a notch that aligns with the outlet 24 of Duan, but that outlet 24 is on [00:34:18] Speaker 05: the wall of the accommodation chamber 21. [00:34:21] Speaker 05: So you need that outlet. [00:34:23] Speaker 05: The outlet 24, which is on the accommodation chamber, is the outlet through which water is exiting the pump chamber and going into the thermal exchange chamber. [00:34:31] Speaker 03: Does the expert file a declaration like that in the other IPR that issued as a final written decision last month? [00:34:40] Speaker 05: ACTEX expert has not, Your Honor. [00:34:42] Speaker 03: Acetech did not do a pound donor response and did not file a... I'm just fascinated and I don't understand why Acetech wants to fight this case and Acetech laid down in the other case. [00:34:57] Speaker 03: Client resources. [00:34:58] Speaker 03: Yeah, client resources allowing you to stand up here, so that's one thing. [00:35:02] Speaker 05: Your Honor, we believe there are important issues of law in this case. [00:35:08] Speaker 05: for instance, the Beckton Dickinson issue, which is why we are here today. [00:35:11] Speaker 02: The problem is if you're not going to appeal that other case, then it moots this case. [00:35:17] Speaker 02: And there may be important issues of law here that are really tricky that we won't decide if we don't have to. [00:35:25] Speaker 05: Yes, Your Honor. [00:35:26] Speaker 05: I fully understand. [00:35:26] Speaker 03: We could plot this case for a year and wait for the other case to come up if you actually, with the client resources, file a blue brief and gray brief and everything like that and look at that case and say, [00:35:38] Speaker 03: you know there's nothing here to say this is an easy case [00:35:41] Speaker 05: Your Honor, we are in discussions with our client, and we'll make a decision. [00:35:46] Speaker 03: I mean, there's judicial resources at stake, too. [00:35:48] Speaker 03: It's not just client resources. [00:35:50] Speaker 03: Absolutely, Your Honor. [00:35:50] Speaker 05: And we are not trying to issue. [00:35:51] Speaker 03: But when there's another case that has a very easy, straightforward affirm, it just makes me wonder, why are we thinking and wrestling with this case? [00:35:59] Speaker 03: You will, if you decide not to appeal. [00:36:02] Speaker 03: The other case let us know in this case, right? [00:36:05] Speaker 05: Yes, Your Honor. [00:36:05] Speaker 03: It would have been useful to get a 28-J letter about last month's final decision on these claims. [00:36:12] Speaker 05: Yes, Your Honor. [00:36:13] Speaker 05: I fully understand. [00:36:14] Speaker 05: But what we are trying to argue here today is the point of law about Becton Dickinson, which is an important issue that I deal with all the time in my practice. [00:36:32] Speaker 05: I don't know if I have any more budget time left. [00:36:34] Speaker 01: Take one minute. [00:36:35] Speaker 05: Sure, Your Honor. [00:36:36] Speaker 05: I just wanted to clarify just a couple of points. [00:36:40] Speaker 05: The council had brought up linear tech and Gauss, and I agree that linear tech, the presumption did not apply because the specification did say that there were the second and the third circuits. [00:36:52] Speaker 05: could share some components. [00:36:54] Speaker 05: And same with the Gauss v. Connair case, which came before Becton Dickinson and is cited in Becton Dickinson. [00:37:01] Speaker 05: The presumption was applied. [00:37:02] Speaker 05: And it was a case of partial overlap, because there the court had found that a pair of probe networks, which was one element, could not be in part of a portion of the electrical operating unit, which is a different [00:37:21] Speaker 05: which is a different component. [00:37:23] Speaker 05: And the court looked to the specification and did not find anything in the specification that would allow that overlap. [00:37:29] Speaker 05: So the Gauss v. Connare is the seminal case that's cited in Becton Dickinson, Kyocera, and so on. [00:37:37] Speaker 05: So there is precedent even before Becton Dickinson of finding this presumption, even though the word presumption was not actually used. [00:37:46] Speaker 01: I think you need to end there. [00:37:47] Speaker 01: Thank you, Your Honor. [00:37:48] Speaker 01: Thank you. [00:37:49] Speaker 01: Thanks to all counsel. [00:37:51] Speaker 01: The case is submitted.