[00:00:00] Speaker 03:
Our first case is Cooley Systems v. Riddell, 2022-12-21.

[00:00:05] Speaker 03:
Mr. Chen.

[00:00:05] Speaker 03:
Thank you, Your Honor.

[00:00:10] Speaker 01:
May it please the Court, Ruben Chen from the Cooley LLP law firm on behalf of Appellant and Pan-Earned Cool IT Systems, Inc.

[00:00:20] Speaker 01:
Your Honor, central to this appeal is the claim term matingly engaged.

[00:00:25] Speaker 01:
And the court here can decide, under de novo review, based on the strength of the intrinsic evidence, the correct meaning of the combined words, matingly engaged, and reverse the board's partial construction and decision, which fails to properly take into account either word, let alone their combination.

[00:00:47] Speaker 01:
Cool IT's construction of matingly engaged is mechanically joined or fitted together to interlock.

[00:00:54] Speaker 01:
This construction, as I'll further explain, is supported by both the intrinsic evidence as well as the extrinsic evidence.

[00:01:01] Speaker 02:
In contrast, if I could interrupt you, the word interlock is giving me trouble, frankly.

[00:01:09] Speaker 02:
Because it seems to me it's one of those words which, if you use it to construe another term, you still have to construe the term interlock.

[00:01:16] Speaker 02:
You really haven't made a whole lot of progress, it seems to me.

[00:01:21] Speaker 02:
By interlock, I'm not sure.

[00:01:25] Speaker 02:
whether that means, for example, do you think a ball and socket joint interlock?

[00:01:32] Speaker 01:
That is one form of interlocking, Your Honor.

[00:01:34] Speaker 02:
Right.

[00:01:34] Speaker 02:
Even though there's no locking there, if you have a ball and socket, assuming you don't have some pressure on both ends, you simply lift them up and the ball falls out, there's no locking, right?

[00:01:46] Speaker 01:
Oh, I do think there needs to be some sort of locking, so... So I need to adhere.

[00:01:50] Speaker 02:
If I had a ball and a socket, and I put the socket here and put the ball here, and I held them up, and I moved my hand and the socket fell out, or the ball fell out, you would say that's not interlocking?

[00:02:05] Speaker 01:
Actually, let me take that back.

[00:02:06] Speaker 01:
I do think that it is interlocking because it cannot move in one particular direction, Your Honor.

[00:02:12] Speaker 01:
That's correct.

[00:02:13] Speaker 02:
But it doesn't have to be locked.

[00:02:16] Speaker 02:
I mean, like, you can't pull it apart.

[00:02:18] Speaker 01:
Well, the definition, the only dictionary definition that's in the record for interlock says that it has to engage with each other by overlapping or fitting

[00:02:30] Speaker 01:
together, which by the way does not support the board's partial construction of fitted within.

[00:02:35] Speaker 01:
It needs to fit together.

[00:02:38] Speaker 01:
There needs to be overlapping.

[00:02:39] Speaker 02:
Let me give you another example, just to get clarity in my mind as to what you mean when you say interlock.

[00:02:46] Speaker 02:
You probably are familiar with the weather tech

[00:02:51] Speaker 02:
covering liners that are used in cars to protect the interior of the car.

[00:02:56] Speaker 02:
You just stick something, which can be customized for a particular car.

[00:03:00] Speaker 02:
You put it down, and it keeps the mud and dirt from getting on your car's floor.

[00:03:05] Speaker 01:
Yes.

[00:03:07] Speaker 02:
They sit down onto the floor of the car, but you pick them up, shake off the dirt, and you put them right back down.

[00:03:17] Speaker 02:
I think interlocking, in your view,

[00:03:19] Speaker 01:
So I'm not as familiar with the weather tech, um, weather floor mats, but, um, it fits the hump in the car.

[00:03:27] Speaker 02:
it fits, but it's not locked in, in the sense that you could pull it up.

[00:03:36] Speaker 01:
I think that would also be interlocked, because it would prevent them from sliding in a particular direction.

[00:03:44] Speaker 01:
And so in that way, there is locking that's happening.

[00:03:46] Speaker 01:
Just with the ball and socket, like you said, there is

[00:03:51] Speaker 01:
a prevention of the components from moving relative to each other in at least one plane.

[00:03:58] Speaker 02:
Why wouldn't it be sufficient to say that the surfaces have similar corresponding shapes?

[00:04:21] Speaker 01:
That is one form of interlocking, your honor, but I think there are other forms of interlocking, for example, with the highlighters, for example, right?

[00:04:31] Speaker 01:
This isn't exactly a contour to the shape of this stud, but because of the diameter of the stud being slightly larger than the diameter of these

[00:04:42] Speaker 01:
channels or pins that hold the cap and butt together, there is interlocking in that particular example, which is obviously an example that I had used at the PTAT, hearing your honors.

[00:04:54] Speaker 00:
Is the concept of force having to be applied somehow part of what you think is the proper construction of mating link age?

[00:05:05] Speaker 01:
Your Honor, I believe there needs to be force in a certain direction, not in all directions.

[00:05:10] Speaker 01:
So for example, in that

[00:05:13] Speaker 01:
For this particular type of interlocking, yes, there needs to be force.

[00:05:17] Speaker 01:
But for example, in that ball and chain example, or when you have contoured surfaces, they may not be needing to be forced in all directions, right?

[00:05:25] Speaker 00:
Because they can fall apart.

[00:05:26] Speaker 00:
But part of the construction that you think the board should have used would require force to have to be imparted in at least one direction?

[00:05:36] Speaker 00:
Is that what we should understand is your construction?

[00:05:37] Speaker 01:
That's right, Your Honor.

[00:05:39] Speaker 01:
So if you look at the only embodiments of the specification that show matingly engaged, you can see these recessed region, right?

[00:05:48] Speaker 01:
It's not the entirety of the second side, by the way.

[00:05:50] Speaker 01:
It's only just the region of the second side.

[00:05:54] Speaker 01:
the compliant member fits into that recessed region.

[00:05:58] Speaker 01:
And in a particular plane, yes, you do need force in order to separate them.

[00:06:03] Speaker 01:
But if you were just to take apart the components, sure, they would fall apart.

[00:06:07] Speaker 01:
And they're not fused together.

[00:06:08] Speaker 01:
They would fall apart.

[00:06:10] Speaker 02:
Would you accept as equivalent to your construction, as I'm now understanding it, a construction of matingly engaged to mean fitting together with complementary shapes

[00:06:24] Speaker 01:
I would accept that.

[00:06:27] Speaker 01:
I think that is more narrow than what interlock means.

[00:06:32] Speaker 02:
I do.

[00:06:34] Speaker 01:
Because there are ways to interlock that don't require complementary contoured shapes, like the highlighter example that I just showed.

[00:06:45] Speaker 01:
So I'm willing to accept it, because I do think that the lion reference doesn't disclose that, but I do think that's too narrow of a construction, and the construction that we have provided

[00:06:57] Speaker 01:
is supported by the intrinsic evidence as well as the extrinsic evidence.

[00:07:02] Speaker 01:
I'd like to go to the intrinsic evidence first and then talk about the extrinsic evidence, which also includes actually a court decision from the Federal Circuit, the Lyle decision, versus A.J.

[00:07:14] Speaker 01:
Manufacturing Company 398 F.3rd 1306 at Pinsight 1313 to 1314.

[00:07:20] Speaker 03:
If we accept the board's construction

[00:07:27] Speaker 03:
Do you agree that Lyon meets that meaning?

[00:07:34] Speaker 01:
I do not, your honor.

[00:07:36] Speaker 01:
If your honors accept the board's partial construction, it does not for two reasons.

[00:07:41] Speaker 01:
The first is that Lyon is not fitted within.

[00:07:45] Speaker 01:
It's not fitted within.

[00:07:47] Speaker 01:
And the reason is all that Lyon's plate 240 is doing, if you look at figure five,

[00:07:55] Speaker 01:
right, is abutting the second side of the housing.

[00:07:57] Speaker 01:
If you look at figure five, this plate can slide up and down as well as there's a little bit room here.

[00:08:03] Speaker 01:
It can slide left and right if it were not for these tabs 242 and fusing, right?

[00:08:09] Speaker 01:
And fusing is not the same thing as matingly engaged because you cannot decouple these components and it also is not mechanically.

[00:08:18] Speaker 02:
How about the tabs?

[00:08:18] Speaker 02:
Why don't the tabs provide the matingly engaged

[00:08:24] Speaker 01:
Well, the tabs are not touching the second side of the housing at all.

[00:08:32] Speaker 01:
The tabs are bent over the fins, and so they are not a compliant member that's matingly engaged to the second side of the housing.

[00:08:41] Speaker 02:
They're matingly engaged to the micro channels.

[00:08:47] Speaker 02:
Is that right?

[00:08:48] Speaker 02:
They're matingly engaged to something.

[00:08:51] Speaker 01:
I don't think the claim uses that term to describe what the tabs is doing.

[00:08:56] Speaker 02:
The tabs keep the plate firmly in place in a particular place.

[00:09:04] Speaker 01:
That's correct.

[00:09:06] Speaker 02:
You're saying it's not the right place.

[00:09:07] Speaker 01:
That's right.

[00:09:08] Speaker 01:
That's exactly right.

[00:09:09] Speaker 01:
That's exactly right, Your Honor.

[00:09:10] Speaker 00:
And the second reason... Yeah, the fusing.

[00:09:12] Speaker 00:
Can you talk about that?

[00:09:13] Speaker 00:
How do we know that fusing is not matingly engaging?

[00:09:17] Speaker 01:
Right, so the same board in a related IPR, IPR 2020-825, found that the only type of connection between the plate 240 and the flat second side of the housing is fusing.

[00:09:36] Speaker 01:
They flat out said that, and their decision here, they don't rely on

[00:09:42] Speaker 01:
Fusing to argue that the plate 240.

[00:09:46] Speaker 00:
I got that, but why is fusing not matingly engaging?

[00:09:52] Speaker 00:
What tells us it has to be able to be taken apart?

[00:09:55] Speaker 01:
Absolutely, yeah.

[00:09:56] Speaker 01:
So with respect to fusing, number one is that it doesn't allow for decoupling of these components.

[00:10:04] Speaker 01:
And it doesn't satisfy the correct construction, which is mechanically joined or fitted together to interlock.

[00:10:10] Speaker 01:
It's not mechanical.

[00:10:12] Speaker 01:
These are chemical bonds that are being created either by welding a structure so that it becomes unitary, uniform,

[00:10:20] Speaker 01:
So it's no longer matingly engaged.

[00:10:22] Speaker 01:
It's uniform, right?

[00:10:24] Speaker 01:
Or you have to actually add some sort of material in between, some sort of bonding material to connect these two pieces, and then these two pieces are not even connecting with each other anymore.

[00:10:36] Speaker 01:
They're connecting with the bonding material.

[00:10:40] Speaker 01:
So for those reasons, fusing does not satisfy

[00:10:43] Speaker 01:
meetingly engaged.

[00:10:45] Speaker 03:
I assume you think that in the board's decision it wasn't Lyon, it was just wrong.

[00:10:52] Speaker 01:
It was wrong.

[00:10:53] Speaker 01:
That's correct.

[00:10:54] Speaker 01:
Yes.

[00:10:56] Speaker 01:
That's exactly right.

[00:10:57] Speaker 01:
And the second reason why, you know, even under the board's partial construction, Lyon's Plate 240 doesn't satisfy the board's own partial construction is the board used, you said, fitted within the recessed region defined by the second side

[00:11:11] Speaker 01:
of a housing member, right?

[00:11:13] Speaker 01:
So the recessed region has to be defined by the second side of the housing member.

[00:11:19] Speaker 01:
And with respect to these earlier embodiments, this top cap 244 is completely flat.

[00:11:25] Speaker 01:
These perimeter walls may define a recess.

[00:11:29] Speaker 01:
But it's not the second side that defines a recessed region.

[00:11:34] Speaker 01:
And I'll put emphasis also on the word region, right?

[00:11:37] Speaker 01:
So in these later embodiments that only were added as new matter in 2011, it's a region of the second side, not the entirety of the second side that is recessed.

[00:11:49] Speaker 01:
And so Lion's Plate 240 doesn't satisfy the board's own partial construction for that reason as well.

[00:11:56] Speaker 00:
I think you told us that extrinsic evidence favors you as well.

[00:12:01] Speaker 00:
Yes.

[00:12:02] Speaker 00:
Do we have to reach the extrinsic evidence just because the board did?

[00:12:06] Speaker 00:
And if we do, don't we review their review of it deferentially?

[00:12:09] Speaker 01:
Yes, if you do have to go to extrinsic evidence, it would be under Substantial Evidence Review.

[00:12:15] Speaker 01:
Your honors are correct, but you don't need to go there.

[00:12:17] Speaker 01:
Intrinsic evidence under de novo review supports Cool IT's proposed construction.

[00:12:24] Speaker 01:
Also, there is just no evidence.

[00:12:26] Speaker 01:
Extrinsic evidence does not support the board's construction, and this is why they, the board relied on two things, right?

[00:12:32] Speaker 01:
Number one is dictionary definitions.

[00:12:33] Speaker 01:
The only dictionary definitions that mate and engage

[00:12:37] Speaker 01:
support, essentially verbatim, HULIT's proposed construction.

[00:12:42] Speaker 01:
ASITEC did not submit any competing definitions of mate or engage.

[00:12:47] Speaker 01:
ASITEC did submit a dictionary definition for the term interlock.

[00:12:53] Speaker 03:
ASITEC has withdrawn from the case?

[00:12:55] Speaker 01:
That's correct.

[00:12:56] Speaker 03:
Oh, I'll just go just finish real quick on interlock.

[00:13:01] Speaker 01:
So with respect to interlock, the full definition of interlock is to engage with each other by overlapping or fitting together.

[00:13:09] Speaker 01:
That's not the same as the board's partial construction of fitted within and intrinsic evidence

[00:13:14] Speaker 01:
with the prosecution history of the new matter being added in 2011 that uses the terms mainly engaged and recessed region.

[00:13:21] Speaker 01:
Those terms mainly engaged and recessed region never appear in the earlier 2007-2009 line reference.

[00:13:30] Speaker 01:
The claim construction itself with the requirement of the second side having a recessed region supports

[00:13:37] Speaker 01:
and then the same board decided in a related IPR that the only type of connection between plate 240 and the line reference is fusing with the second side of the housing.

[00:13:48] Speaker 02:
Fusing is not the same thing.

[00:13:53] Speaker 02:
the IPR and the present IPR with respect to their treatment of fusing.

[00:13:58] Speaker 01:
That is absolutely correct, Your Honor.

[00:14:00] Speaker 02:
So what says that they got it right the first time and wrong this time as opposed to the other way around?

[00:14:05] Speaker 01:
Oh, maybe there's a little bit of confusion in what I said.

[00:14:10] Speaker 01:
The same board found that the only type of connection between plate 240 and the second side of housing is fusing.

[00:14:18] Speaker 01:
So we agree with that.

[00:14:19] Speaker 01:
That is the intrinsic evidence.

[00:14:21] Speaker 01:
That's a final decision at this point, since it's not being appealed.

[00:14:25] Speaker 01:
And so that's the only type of connection between plate 240 and the second side of the housing.

[00:14:30] Speaker 02:
But the current board seems to be saying the contrary.

[00:14:35] Speaker 02:
They're saying there is.

[00:14:36] Speaker 01:
Yes, you're right.

[00:14:37] Speaker 01:
They're being inconsistent.

[00:14:38] Speaker 02:
So why is it that we have to assume the current board is wrong, even if the same board previously said something that is contrary?

[00:14:47] Speaker 02:
That's right.

[00:14:48] Speaker 02:
Why didn't they suddenly wake up and decide this time that there was something else that was fitting, and that the first time that they were wrong?

[00:15:02] Speaker 01:
Well, this board's decision actually doesn't rely on fusing.

[00:15:07] Speaker 02:
They specifically say it's necessary.

[00:15:10] Speaker 01:
Sorry?

[00:15:10] Speaker 02:
They say fusing was not a necessary element of model.

[00:15:14] Speaker 01:
That's right.

[00:15:16] Speaker 01:
They're saying we're not relying on the fact that plate 240 is fused to the second side of the housing.

[00:15:23] Speaker 01:
That's essentially what the board in this IPR is saying, which I think that's the only type of connection that that same board found.

[00:15:32] Speaker 01:
So their decision doesn't make sense to me.

[00:15:36] Speaker 03:
Counsel, your time has expired.

[00:15:38] Speaker 03:
We move into the final time, but we'll give you two minutes to move on.

[00:15:41] Speaker 01:
Thank you.

[00:15:42] Speaker 01:
Appreciate that, Your Honor.

[00:15:43] Speaker 03:
Ms.

[00:15:43] Speaker 03:
Lateef.

[00:15:47] Speaker 04:
Thank you, Your Honors.

[00:15:48] Speaker 04:
Good morning.

[00:15:48] Speaker 04:
May it please the court?

[00:15:50] Speaker 04:
I just want to remind this court that this is a continuation in part.

[00:15:55] Speaker 04:
And to the extent that Helen is up here trying to say that the construction of the term matingly engaged requires interlocking,

[00:16:04] Speaker 04:
They could have put that in their claims, and they didn't.

[00:16:06] Speaker 04:
There is nothing in the intrinsic evidence here that would suggest that matingly engaged is anything other than what this board found, which is that a partial component of the compliant member is fitted within the recessed region of the second side of the housing.

[00:16:22] Speaker 04:
This idea that interlocking somehow is a requirement, it's not seen in the claims.

[00:16:28] Speaker 04:
It's not seen in the specification.

[00:16:30] Speaker 04:
It's not in the prosecution history.

[00:16:32] Speaker 04:
And then, of course, the board also looked to extrinsic evidence to determine whether or not their construction was accurate.

[00:16:43] Speaker 04:
But almost like is not the same thing.

[00:16:47] Speaker 04:
It's a fitted.

[00:16:47] Speaker 04:
All you need is a portion of the compliant member to be

[00:16:51] Speaker 04:
Fitted within the recess region of the second side of the housing.

[00:16:56] Speaker 04:
Yes, there needs to be some sort of, I think the question earlier today was about force, whether there need to be something there.

[00:17:01] Speaker 04:
But that doesn't require interlocking.

[00:17:03] Speaker 04:
In the same example you gave, Your Honor, about having a ball fitted that it could drop out, that wouldn't be necessarily interlocking.

[00:17:10] Speaker 04:
And you don't need that here.

[00:17:12] Speaker 04:
You just need it to be matingly engaged, fitted within.

[00:17:17] Speaker 02:
Do you think that matingly, that part of the matingly engaged

[00:17:21] Speaker 02:
contemplates the presence of, what's the terminology, complementary shapes that I think was discussed.

[00:17:31] Speaker 04:
No, Your Honor.

[00:17:32] Speaker 02:
Why not?

[00:17:33] Speaker 02:
That feels like, if they're not complementary, how are they making it?

[00:17:41] Speaker 04:
Well, the board looked at what the claims and the specification described, and it just needs to be fitted within.

[00:17:48] Speaker 04:
It just needs to fit within that part of the housing so that when the coolant enters, the inlet and the outlet are closed off, and it forces the coolant to go through the microchannel instead of coming out of that.

[00:18:00] Speaker 04:
inlet and outlet.

[00:18:02] Speaker 02:
But that seems to me, you could satisfy that with just the term engage.

[00:18:07] Speaker 02:
But you've got the term matingly engaged.

[00:18:08] Speaker 02:
So matingly has to carry some force.

[00:18:11] Speaker 02:
Well that's the fitted within part, right?

[00:18:13] Speaker 02:
But what is fitted within?

[00:18:15] Speaker 02:
I mean a chair can fit within a room and that's not what we have in mind, obviously.

[00:18:20] Speaker 02:
Right.

[00:18:20] Speaker 02:
What do you mean by fitted within?

[00:18:22] Speaker 02:
Fitted snugly?

[00:18:25] Speaker 02:
Is that what you have in mind?

[00:18:26] Speaker 04:
So according to this particular invention, the heat exchanger, it has to be fitted within such that the coolant can't escape out of the inlet and the outlet.

[00:18:35] Speaker 02:
That's a functional description, but what do you mean by

[00:18:40] Speaker 02:
the general term fitted within, and why is that not going to be equivalent to having coordinated shapes?

[00:18:52] Speaker 04:
So it's not as if, to be clear, I didn't mean to suggest it's not, that coordinated shapes wouldn't satisfy that.

[00:18:59] Speaker 04:
What I was really trying to say is that's not the only way it could be satisfied.

[00:19:02] Speaker 04:
You don't need the coordinated shapes to satisfy fitted within.

[00:19:06] Speaker 04:
The coordinated shapes narrows the definition.

[00:19:08] Speaker 02:
Fitted within, but

[00:19:09] Speaker 04:
The matingly engaged is satisfied.

[00:19:14] Speaker 04:
According to the board, when they looked at the summary of the invention, and they looked at the claims, and they went throughout the spec, it's satisfied when you have a portion of the compliant member fitted within.

[00:19:25] Speaker 04:
You could have complementary shapes, but that's not the only way to have matingly engaged.

[00:19:33] Speaker 04:
And this idea that you want some sort of interlocking is much more narrow than what the claims and the specification are asking for.

[00:19:39] Speaker 04:
If you look at the summary section... Let me ask you before you move to that.

[00:19:43] Speaker 00:
The claimed language also requires the occupying a portion of the recess, correct?

[00:19:49] Speaker 00:
Yes.

[00:19:50] Speaker 00:
So how is the board's construction not rendering that limitation superfluous?

[00:19:54] Speaker 00:
When you describe what it means to fit within, it sounds to me like occupies a portion.

[00:20:00] Speaker 00:
Is there any difference between the two?

[00:20:02] Speaker 04:
difference between the two of occupying a portion and fitted within?

[00:20:05] Speaker 00:
Well, yes, because the board says matingly engage means fit within.

[00:20:11] Speaker 00:
So my concern is that construction is so broad, it leaves occupies a portion doing nothing in the claim.

[00:20:20] Speaker 04:
Occupy a portion, you're sort of talking about that last section in the claim, that last limitation.

[00:20:26] Speaker 04:
That's defining how the manifold is formed.

[00:20:31] Speaker 04:
And so that occupying a portion, that's not language that is used to talk about how the compliant member and the housing are fitted together.

[00:20:42] Speaker 00:
The compliant member is the manifold insert, is it not?

[00:20:45] Speaker 04:
It is, but it's talking about how it's, so that last section that you're looking at, that limitation, is talking about sort of how the exhaust manifold is formed by the compliant member of the house, I'm sorry, and the housing.

[00:21:00] Speaker 00:
I'm looking at, yeah, that last limitation wherein a portion of the compliant member occupies a portion of the recessed region

[00:21:08] Speaker 00:
defined by the second side of the housing number.

[00:21:11] Speaker 00:
Yes.

[00:21:12] Speaker 00:
Is that not the same place we look to for whether there's mating engagement between the compliant member and the housing?

[00:21:22] Speaker 04:
No, because it is not the same place.

[00:21:24] Speaker 04:
Because what that is doing is talking about how you're defining how the exact manifold are formed.

[00:21:33] Speaker 04:
When you go up to the part where we're trying to construe matingly engaged in that third limitation,

[00:21:39] Speaker 04:
That's talking, and it's, so if you kind of read more, it's talking about explaining how it works with the microchannels.

[00:21:50] Speaker 04:
That's where you're talking about amazingly engaging them for the purpose of having the coolant sort of have this divergent act to go through the microchannels.

[00:22:02] Speaker 00:
So in response to the argument, which I think is in the blue brief, that the board's construction renders occupies a portion entirely superfluous, you say no because it's... That's describing a different... That's not describing how the compliant member is meetingly engaged with the second side of the housing.

[00:22:22] Speaker 04:
That's describing how you... how the compli... I'm sorry, how the manifold, exhaust manifolds are formed within the housing.

[00:22:29] Speaker 04:
They're not doing the same work.

[00:22:31] Speaker 04:
So it doesn't make it superfluous.

[00:22:33] Speaker 02:
Do you agree with Mr. Chen, in response to one of my questions, that the tabs that are shown on the Azalea's line 2007 do not have the role of giving us direction as to what maybe is a Navy engaged

[00:22:56] Speaker 02:
I do understand the types I'm talking about.

[00:22:57] Speaker 04:
I do understand the types I'm talking about.

[00:22:59] Speaker 02:
I'm not sure I understand your question.

[00:23:02] Speaker 02:
He said, well, they don't contribute to the mating engagement because they're not engaged to the right thing.

[00:23:07] Speaker 02:
They're engaged with the microchats, not with the housing.

[00:23:15] Speaker 04:
Yeah, I'm not sure that I agree.

[00:23:18] Speaker 04:
But I want to be clear.

[00:23:20] Speaker 04:
as I answer that question, that the board never made findings with respect to whether or not Lion is obvious under their construction.

[00:23:30] Speaker 04:
So this idea, basically the argument is,

[00:23:34] Speaker 04:
Under the board's construction, lime is obvious.

[00:23:37] Speaker 04:
And I guess Mr. Chen is arguing, well, no, because those tabs make it so that it can adjust the, I think his argument was, if I'm mistaken.

[00:23:46] Speaker 02:
I think his argument is essentially that, well, the tabs are there.

[00:23:52] Speaker 02:
And they may well secure the plate to the microwave, but they don't secure the plate to the house.

[00:24:01] Speaker 04:
Yeah, I don't agree with that, and I'm not exactly sure why that.

[00:24:04] Speaker 04:
I do not as I read the spec, and I'm not exactly sure why he does.

[00:24:09] Speaker 02:
In what way do the tabs engage the housing as opposed to the.

[00:24:18] Speaker 04:
Well, when the plate in the.

[00:24:20] Speaker 04:
Let me just turn to it real quickly, please, Your Honor.

[00:24:26] Speaker 04:
looking for the figure five I'll find it just had to get to it okay so the plate and the seal are kind of what work together to be to be considered the compliant member here and that fit within the housing but the in lying the plate in the seal

[00:24:51] Speaker 04:
form together.

[00:24:52] Speaker 04:
And so the tabs are just on the ends of that plate.

[00:24:55] Speaker 04:
And so they are a part of the plate, like they make up the plate.

[00:24:59] Speaker 04:
So when that is being, when the seal and the plate are together and they're in the recess region of the housing, it's not a separate thing.

[00:25:08] Speaker 04:
I'm not looking at the tabs separately in the way that Mr. Chen is.

[00:25:11] Speaker 04:
There's nothing in the specification that tells me that I should and I'm

[00:25:15] Speaker 04:
I don't agree that that should be somehow separated out.

[00:25:19] Speaker 04:
They're just a part of the plate that gets connected within the recessed region of the housing.

[00:25:25] Speaker 02:
Connected to what?

[00:25:25] Speaker 04:
Fitted within, I should say, the recessed region of the housing.

[00:25:28] Speaker 02:
Right.

[00:25:28] Speaker 02:
But what is it connected to?

[00:25:30] Speaker 02:
What do the TAMs connect the plate to?

[00:25:33] Speaker 02:
Do they connect the plate to the housing is the question.

[00:25:38] Speaker 04:
Yes, in the sense that it's in the recessed region of the housing.

[00:25:42] Speaker 04:
I mean, I hesitate to use connected, and I think I did that.

[00:25:45] Speaker 04:
I didn't mean to throw you off.

[00:25:47] Speaker 04:
But there's a piece of the seal and that plate that are within the recessed region of the second side of the housing.

[00:25:55] Speaker 04:
And that's all that is needed for Lyon to fit within the construction that the board came up with.

[00:26:01] Speaker 02:
The board didn't rely on the tabs.

[00:26:03] Speaker 04:
No, the board talked about the plate.

[00:26:05] Speaker 04:
But the tabs are a part of the plate.

[00:26:07] Speaker 04:
The board didn't parse it out.

[00:26:09] Speaker 04:
But the tabs are not a separate thing from the plate.

[00:26:13] Speaker 02:
Well, the feature of the plate, it differentiates the plate from just a flat.

[00:26:19] Speaker 04:
Correct, Your Honor.

[00:26:20] Speaker 04:
But under the construction, all you need is that you have a partial part of the compliant member being recessed within the housing.

[00:26:29] Speaker 04:
So that compliant member here would be the seal and the plate together.

[00:26:34] Speaker 03:
Council, is this the type of supplier

[00:26:38] Speaker 04:
Ah, that's true.

[00:26:43] Speaker 03:
I apologize, Your Honor.

[00:26:47] Speaker 04:
I'm not sure I have to look at the deal.

[00:26:50] Speaker 00:
Is there any embodiment disclosed in the specification that you would view as being read out of the claims or excluded from the claims under the patentee's construction?

[00:27:04] Speaker 00:
Is it too narrow to even capture all the embodiments that are disclosed in the specification?

[00:27:09] Speaker 00:
Is that an argument that you make?

[00:27:11] Speaker 04:
That's not an argument that I made in my briefing.

[00:27:15] Speaker 04:
But what I would say is yes, in the sense that interlocking is two, figures one through three don't require an interlock.

[00:27:25] Speaker 04:
So the fact that interlocking is so narrow, maybe that's something I should have said, but absolutely that would be

[00:27:32] Speaker 04:
All they have is a partial part within the second side of the housing.

[00:27:37] Speaker 04:
And if you look at the summary that kind of describes that, it literally says a partial part of the compliant member sits within the housing.

[00:27:44] Speaker 04:
So it may not be explicit in my briefing, but I would absolutely stand here and say that those figures would, their construction is too narrow to satisfy those figures.

[00:28:03] Speaker 02:
What do you understand by the term?

[00:28:07] Speaker 04:
The way I understand it is that you have contoured pieces, complementary contour pieces, like legos.

[00:28:11] Speaker 04:
So the way you have... I heard ball and soccer.

[00:28:16] Speaker 04:
I would not call those interlock necessarily based on my understanding of what patent owner wanted.

[00:28:22] Speaker 04:
That is not the term that the board is using.

[00:28:23] Speaker 04:
Yeah, I understand that.

[00:28:25] Speaker 04:
I'm just examining you on somebody else's position.

[00:28:28] Speaker 04:
My understanding of interlock would not be that example.

[00:28:32] Speaker 04:
I literally think there needs to be contoured complementary pieces that lock together.

[00:28:38] Speaker 04:
If patent owner meant something else, that's possible.

[00:28:40] Speaker 04:
But they should have laid that out in their specification.

[00:28:42] Speaker 04:
And it should have been listed in the claims.

[00:28:43] Speaker 02:
And it's not here.

[00:28:44] Speaker 02:
Well, what I understand in their position today

[00:28:46] Speaker 02:
They don't necessarily lock together, but they resist movement in at least one direction.

[00:28:55] Speaker 02:
That may be.

[00:28:55] Speaker 02:
Which would be true of the bottle socket, for example.

[00:28:57] Speaker 02:
Sure.

[00:28:58] Speaker 02:
Or the WeatherTech service.

[00:29:00] Speaker 04:
I agree.

[00:29:00] Speaker 04:
If that's what they understand it to be, then that may be.

[00:29:03] Speaker 04:
But that doesn't change the facts here, that that's not in the specification.

[00:29:06] Speaker 04:
That's not in the claims.

[00:29:07] Speaker 04:
And the board's construction is in line with the entrance of evidence and the entrance, exit of evidence.

[00:29:14] Speaker 00:
On the prosecution history, is there a way to read it as supporting the board's construction or is it at best just neutral and we shouldn't put any weight on it?

[00:29:25] Speaker 04:
It's at best neutral.

[00:29:26] Speaker 04:
If you look at my briefing, I was talking about how it has to be a clear disavowal here if they wanted the interlocking.

[00:29:33] Speaker 04:
And it's kind of either ambiguous or silent at best, the prosecution history.

[00:29:38] Speaker 04:
So there was nothing there that would cause the board to narrow their construction to interlocking.

[00:29:46] Speaker 00:
And what about ceiling?

[00:29:49] Speaker 00:
Is ceiling something completely distinct from matingly engaged in the board's view?

[00:29:58] Speaker 04:
So the board said that it must... Let me back up and just say the board did a partial construction here.

[00:30:06] Speaker 04:
They didn't look at all the ways in which something could be matingly engaged.

[00:30:11] Speaker 04:
Under this partial construction that is before us today,

[00:30:15] Speaker 04:
Fitted together, I think ceiling would probably be too far.

[00:30:25] Speaker 00:
It would not fit.

[00:30:27] Speaker 04:
However, again, this is a partial construction based on the dispute that was before the board.

[00:30:33] Speaker 04:
And it didn't look at all the ways that meetingly engaged could occur.

[00:30:38] Speaker 04:
It just said, this is the dispute, so we're just going to look at whether it's interlocking or not.

[00:30:44] Speaker 04:
the varying ways.

[00:30:45] Speaker 04:
And so they didn't really come to that conclusion, whether it would fit or not, because they didn't have to, because that was not what was before them.

[00:30:53] Speaker 04:
And so if there are no further questions, I respectfully ask that you affirm the board's decision.

[00:30:59] Speaker 04:
Thank you for your time.

[00:31:20] Speaker 03:
I don't think so, Your Honor.

[00:31:23] Speaker 01:
I don't think the patent has expired.

[00:31:24] Speaker 01:
Apologies for not having that answer.

[00:31:27] Speaker 01:
What about the effective filing date?

[00:31:33] Speaker 01:
The effective filing date, the priority date goes back to 2011.

[00:31:43] Speaker 03:
Is there litigation going on now?

[00:31:46] Speaker 01:
No, there is not, Your Honor.

[00:31:50] Speaker 01:
That's correct, Your Honor.

[00:31:56] Speaker 01:
Thank you, Your Honor.

[00:31:57] Speaker 01:
And I'll be quick.

[00:31:58] Speaker 01:
There's just four points that I want to make.

[00:32:00] Speaker 01:
With respect to tabs 242, I would direct Your Honors to column 12 of the patent.

[00:32:08] Speaker 01:
This is at appendix 1722, lines 15 to 21, which make it clear that the tabs do not actually abut the second side of the housing of the tabs.

[00:32:21] Speaker 01:
are bent over the walls, the fins of the microchannels.

[00:32:26] Speaker 01:
The second point is I heard counsel use the word fitted together, but that's not the same thing as fitted within.

[00:32:32] Speaker 01:
So a sex expert used the word fitted together to describe the ordinary meeting.

[00:32:38] Speaker 01:
of what he considered to be mainly engaged, but that's not the same thing as what the board's partial construction is, which is fitted together, fitted within different, with respect to the term interlock, to your honor's question, there are

[00:32:56] Speaker 01:
It comes straight from the dictionary definition, which is interlock.

[00:33:00] Speaker 01:
And there have been a number of courts, including the Federal Circuit's Lyle decision, which affirmed.

[00:33:05] Speaker 02:
What was in the Lyle case?

[00:33:06] Speaker 02:
It wasn't in your brief, I don't think, was it?

[00:33:08] Speaker 01:
It wasn't in our brief.

[00:33:09] Speaker 01:
We did cite other cases in footnote nine of our opening brief.

[00:33:12] Speaker 01:
It was in the record.

[00:33:13] Speaker 01:
It's on appendix.

[00:33:15] Speaker 02:
It's more helpful if it's in the brief.

[00:33:17] Speaker 01:
Yes.

[00:33:18] Speaker 02:
What's the side to that?

[00:33:19] Speaker 01:
Yes.

[00:33:20] Speaker 01:
The Lyle case is

[00:33:24] Speaker 01:
398 F3rd 1306 at Penn site 1313 to 1314.

[00:33:32] Speaker 01:
And in our brief, in footnote nine of our opening brief, we cite to a number of district court decisions that found engage means interlock.

[00:33:43] Speaker 00:
Are figures one to three within the scope of your claims?

[00:33:47] Speaker 01:
Figures one through three.

[00:33:51] Speaker 01:
of the 567 patent, Your Honor.

[00:33:52] Speaker 01:
That's your... Of the patent that we're reviewing.

[00:33:55] Speaker 01:
Not the lion reference.

[00:33:56] Speaker 00:
No, the 567.

[00:33:58] Speaker 01:
Yes, 567.

[00:33:59] Speaker 01:
Figure 1 is, but not 2 and 3.

[00:34:01] Speaker 01:
Figure 1 is just this very generic sort of block diagram that doesn't actually show... And what about the occupies a portion part of the claim limitation?

[00:34:12] Speaker 00:
Is counsel on the other side right that that really has nothing to do with what we're talking about?

[00:34:17] Speaker 01:
No, I actually disagree with that, Your Honor.

[00:34:20] Speaker 01:
That does have to do with what we're talking about.

[00:34:23] Speaker 01:
And I do think, Your Honor, is correct that it would be rendered superfluous with a really broad construction of matingly engage.

[00:34:32] Speaker 01:
It essentially would render that particular limitation

[00:34:36] Speaker 01:
superfluous.

[00:34:37] Speaker 00:
She said it had to do with something different.

[00:34:43] Speaker 00:
That it had to do with how the manifold is formed, if I understood correctly.

[00:34:50] Speaker 00:
Why is she not right about that?

[00:34:51] Speaker 01:
It recites wherein a portion of the compliant member occupies a portion of the recessed region defined by the second side of the housing member.

[00:34:59] Speaker 01:
I think it's specifically talking about

[00:35:02] Speaker 01:
the compliant member and the second side of the housing, so I am actually not... Which is the same place we have to look to for mating engagement?

[00:35:10] Speaker 01:
That is correct.

[00:35:10] Speaker 01:
That is correct, Your Honor.

[00:35:13] Speaker 01:
final point is actually in agreement with counsel that seemingly engaged is different and there's actually a different claim claim twenty eight that claims ceiling with that there are no further questions and i respectfully request that your honors reverse thank you