[00:00:00] Speaker 03:
Our final argument for today is docket number 23-1524.

[00:00:09] Speaker 03:
This is Kids 2 LLC versus Tomey International.

[00:00:13] Speaker 03:
Mr. Kuo, you see that we, this morning, have the physical exhibit.

[00:00:21] Speaker 03:
It turns out it could be useful, after all.

[00:00:24] Speaker 03:
But we'll keep it up here to make sure we're keeping track of what you're arguing.

[00:00:30] Speaker 01:
Sure, sure.

[00:00:32] Speaker 01:
May it please the court?

[00:00:34] Speaker 01:
Good morning.

[00:00:34] Speaker 01:
I think it's still morning.

[00:00:36] Speaker 01:
I'm not actually sure.

[00:00:37] Speaker 01:
Just barely.

[00:00:37] Speaker 01:
Barely, OK.

[00:00:39] Speaker 01:
This patent case, like many patent cases, hinges on the issue of claim construction.

[00:00:45] Speaker 01:
Unfortunately, in this case, for reasons set forth in the briefing, the district court erred in many respects with respect to his claim construction.

[00:00:53] Speaker 01:
And then based on this erroneous claim construction, the district court erroneously granted summary judgment of no infringement and partially excluded Tomey's technical expert.

[00:01:03] Speaker 01:
And just to back up one second,

[00:01:07] Speaker 01:
Kids 2 was a change in name, so I'll probably refer to it as Summer Infant, just because that's what's in my head.

[00:01:16] Speaker 03:
And you're representing Summer Infant.

[00:01:18] Speaker 03:
You're representing Tommy.

[00:01:19] Speaker 01:
Tommy, right.

[00:01:21] Speaker 01:
Yeah, procedurally, Summer Infant filed a DJ action, which is what promulgated this case.

[00:01:28] Speaker 01:
As your honor has already indicated that the patented issue is for a multi-stage juvenile bathtub and by multi-stage What is meant is that the tub includes features that allow?

[00:01:39] Speaker 01:
The tub to continue to be used with children as they grow so infants who can't really support their head and aren't don't have body control They are there.

[00:01:50] Speaker 03:
I think we understand that you have two infringement theories right one is

[00:01:56] Speaker 03:
vis-a-vis the accused product.

[00:01:59] Speaker 03:
One is based on an idea that what we'll just call the hump, right?

[00:02:08] Speaker 03:
That hump wall on the toddler's side is some kind of intervening structure that can join the distal ledge of the toddler's seat

[00:02:19] Speaker 03:
to, I guess, the distal edge of the infant seat.

[00:02:23] Speaker 03:
Correct.

[00:02:23] Speaker 03:
That's one theory.

[00:02:25] Speaker 03:
Correct.

[00:02:25] Speaker 03:
The second theory is for the toddler seat, again, you rely on what I'll just call the flat area of the toddler seat, as well as the hump wall that is in direct communication with that flat seat.

[00:02:44] Speaker 03:
Those two pieces together make up the seating surface for the toddler, right?

[00:02:49] Speaker 01:
It depends.

[00:02:51] Speaker 01:
So yes, yes, in answer to your question.

[00:02:54] Speaker 01:
But our position is that the district court erred in its claim construction by requiring that the distal edge of the toddler side touch the distal edge of the infant side.

[00:03:14] Speaker 03:
So this goes to theory number one, then?

[00:03:17] Speaker 03:
Correct.

[00:03:17] Speaker 03:
Of the two that I just mentioned?

[00:03:18] Speaker 03:
Correct.

[00:03:19] Speaker 01:
OK.

[00:03:19] Speaker 01:
Even under the court's erroneous plan construction, we believe that there's still infringement under theory number two, as you've laid out.

[00:03:26] Speaker 03:
OK.

[00:03:27] Speaker 03:
So which one do you want to talk about first?

[00:03:29] Speaker 03:
Theory number one?

[00:03:30] Speaker 03:
Theory number one, yes.

[00:03:32] Speaker 01:
OK.

[00:03:32] Speaker 03:
So now I have a question here, which raises the question of, even if you are right about the term joined at,

[00:03:42] Speaker 03:
that could contemplate intervening structures.

[00:03:45] Speaker 03:
And therefore, the hump wall between the toddler seating surface and what I'll just call the apex is just an appropriate

[00:04:00] Speaker 03:
intervening structure that's permitted.

[00:04:02] Speaker 03:
Then the question still remains for that theory, how is the seating surface for the toddler something that has an incline in it?

[00:04:12] Speaker 03:
Because it is flat going across.

[00:04:17] Speaker 03:
OK.

[00:04:18] Speaker 03:
With respect to that.

[00:04:19] Speaker 03:
I didn't see you face up to that in your gray brief.

[00:04:28] Speaker 01:
Well, to be fair, I didn't actually recognize that as the argument being made, but the horizontal, let's assume that it is completely flat, the toddler side.

[00:04:43] Speaker 01:
The patent actually contemplates that as, it's an incline of zero, but it's still something that's measurable.

[00:04:50] Speaker 01:
The patent actually speaks specifically about the toddler side having a horizontal

[00:04:58] Speaker 01:
angle, let's call it.

[00:05:01] Speaker 01:
And I could point you to, and this is in the patent itself, at APPX 115, column five, line 54.

[00:05:13] Speaker 01:
And it talks about the generally horizontal seating surface 70.

[00:05:18] Speaker 01:
And that refers to figure two from the patent, which is also in the briefing.

[00:05:23] Speaker 01:
And in figure two, which is actually on the cover page as well, 70 is shown to be the seating for the toddler side.

[00:05:32] Speaker 03:
And we're talking about figure 13?

[00:05:35] Speaker 01:
Yes, I'm sorry.

[00:05:36] Speaker 01:
Yeah, figure 13.

[00:05:37] Speaker 03:
Figure 13.

[00:05:38] Speaker 03:
OK.

[00:05:39] Speaker 01:
I misspoke.

[00:05:40] Speaker 03:
So I mean, to me, I didn't take from this patent as suggesting that element 70 by itself

[00:05:53] Speaker 03:
would be the inclined seating surface.

[00:05:57] Speaker 03:
The inclined seating surface would necessarily have to be the extension, the ramp that extends from element 70

[00:06:08] Speaker 03:
on the toddler side, in order to achieve the claimed inclined seating surface for this side of the wash tower.

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

[00:06:22] Speaker 03:
OK, now I'm getting interested as to where in your litigation below or your litigation here did you tell either us or the district court

[00:06:34] Speaker 03:
that, yeah, this flat part, because we all agree it's flat, we all agree it's horizontal, can count as an inclined seating surface.

[00:06:53] Speaker 01:
Because the district court issued its claim construction, I'm sorry.

[00:07:01] Speaker 01:
In our claim charts that we submitted with the summary judgment briefing, we identified specifically that flat section, assuming that it's not inclined at all, but that section of the toddler seat as constituting the seating surface of the toddler side.

[00:07:18] Speaker 01:
So that's where it's identified.

[00:07:20] Speaker 01:
And I would point out that as far as your reading of the patent, the patent doesn't talk about the seating surface 70, which it describes as generally horizontal.

[00:07:36] Speaker 01:
It doesn't say that.

[00:07:39] Speaker 01:
And that's what's claimed.

[00:07:40] Speaker 01:
The claim is specific to the seating surface.

[00:07:45] Speaker 03:
Right, having differing inclinations.

[00:07:48] Speaker 03:
Each seating surface has to be inclined in some way.

[00:07:52] Speaker 01:
Well, horizontal is a measurable incline.

[00:07:58] Speaker 02:
Do you have evidence below that a 0% incline can be an incline?

[00:08:05] Speaker 01:
Well, I think that comes down to whether that's a finding of fact.

[00:08:08] Speaker 02:
No, but do you have evidence that you presented to the district court that that's part of your infringement?

[00:08:12] Speaker 01:
Sure.

[00:08:13] Speaker 01:
Our expert witness, he opined that the horizontal surface is the toddler side seating surface.

[00:08:21] Speaker 02:
I'm sorry.

[00:08:23] Speaker 02:
Sorry.

[00:08:23] Speaker 02:
Is that a different incline, you're saying, than the seating surface elsewhere?

[00:08:28] Speaker 02:
How does a 0% incline

[00:08:31] Speaker 02:
help you meet the claim limitation about the different inclinations?

[00:08:35] Speaker 01:
Well, they're different inclinations.

[00:08:36] Speaker 01:
One is horizontal.

[00:08:37] Speaker 01:
One is pitched somewhat.

[00:08:40] Speaker 03:
Yes, but what if both of them have to be inclined?

[00:08:44] Speaker 03:
I mean, what if the plain, ordinary meaning of this claim requires two differing inclined seating surfaces?

[00:08:52] Speaker 03:
I mean, this is the first time I've ever heard

[00:08:56] Speaker 03:
or read that a 0% incline, a flat surface can also be understood as an incline surface.

[00:09:04] Speaker 03:
In other words, forget about the word incline.

[00:09:07] Speaker 03:
It doesn't matter anymore because you can have any position of the surface and it's going to meet the incline surface requirement.

[00:09:19] Speaker 01:
I was with you until the very end of that question.

[00:09:22] Speaker 03:
OK, so non-inclined is also inclined.

[00:09:25] Speaker 03:
That's what I'm hearing right now.

[00:09:26] Speaker 03:
That's what I need help on.

[00:09:28] Speaker 01:
I'm saying that horizontal is a type of incline that's measurable.

[00:09:32] Speaker 01:
It is zero.

[00:09:34] Speaker 03:
So is there anything that's not inclined, then, in your view?

[00:09:38] Speaker 01:
No.

[00:09:38] Speaker 03:
OK, so everything is inclined, even flat.

[00:09:42] Speaker 01:
In the context of this pattern, yes, because weight of pattern

[00:09:46] Speaker 05:
So I want to just get in here, because I looked at something in the record.

[00:09:50] Speaker 05:
So do you have your appendix, hopefully, with you?

[00:09:52] Speaker 05:
I do.

[00:09:52] Speaker 05:
Can we turn to appendix page 1497?

[00:09:54] Speaker 05:
1497.

[00:09:55] Speaker 05:
Yes.

[00:10:03] Speaker 05:
And I understand this is filed under seal.

[00:10:05] Speaker 05:
So I don't know if I can speak in open court about what's actually stated.

[00:10:09] Speaker 05:
But at a minimum, I'd like you to look at beginning around page 170, line 23, through page 171, line 13.

[00:10:18] Speaker 05:
Yes.

[00:10:22] Speaker 05:
The way I saw that testimony stated was that maybe there had been some evidence pit forth indicating that the toddler's seating surface is inclined.

[00:10:31] Speaker 05:
That's what I'm seeing in this.

[00:10:32] Speaker 05:
particular language.

[00:10:33] Speaker 05:
I won't say it, but I thought that that might be an answer to some of the questions that were posed.

[00:10:39] Speaker 01:
Yes, and this is, I'm sorry, so as I said, this is the testimony of our expert witness.

[00:10:46] Speaker 01:
I'm not really sure if there is a confidentiality issue here, but this is a testimony of our expert witness when asked about the seating surfaces for the toddler side.

[00:10:55] Speaker 01:
And like I said,

[00:10:58] Speaker 01:
You've described, Judge Chen, you've described the toddler size being flat.

[00:11:02] Speaker 01:
I don't actually agree with that.

[00:11:03] Speaker 01:
There is some form to it.

[00:11:06] Speaker 03:
Well, you earlier just said you agreed it was flat.

[00:11:09] Speaker 01:
No, I said if it was flat, it still would fall within the scope of the claim.

[00:11:14] Speaker 01:
And why I'm saying that is because of what the specification teaches, which is that the horizontal portion 70 is the seating surface.

[00:11:23] Speaker 03:
I mean, at grade grief 23, you call it a horizontal seating surface.

[00:11:29] Speaker 02:
Yes.

[00:11:30] Speaker 02:
Is horizontal something different than flat?

[00:11:35] Speaker 01:
I suppose it is.

[00:11:39] Speaker 01:
I mean, a horizontal surface can have, if you look at an overall surface that's horizontal that might have some curves to it, it's still horizontal.

[00:11:49] Speaker 03:
I mean, I'm just troubled because I don't see anywhere in your blue brief

[00:11:54] Speaker 03:
for your gray brief, where you say this accused tub's seating surface for the toddler side has an incline in it.

[00:12:05] Speaker 03:
And so that is what meets the claim limitation.

[00:12:09] Speaker 03:
I know you have theory number two, which is, well, we're also going to rely, we're going to do a combination between the flat surface and then the hump wall.

[00:12:19] Speaker 03:
And then the hump wall is clearly inclined.

[00:12:21] Speaker 03:
It's practically a 90 degree.

[00:12:24] Speaker 03:
inclination.

[00:12:24] Speaker 03:
So in that way, that version of the seating surface, assuming it's a seating surface, has an incline in it.

[00:12:32] Speaker 03:
But I don't see anywhere in your briefing where you say just the flat part itself is inclined and therefore meets the claim limitation.

[00:12:38] Speaker 01:
I think the problem there is because we're addressing the orders that came down from the district court, where theory number one, where the flat portion that's connected via the ramped up portion, that was a claim construction that was rejected by the district court.

[00:12:57] Speaker 01:
So in our summary judgment briefing, that wasn't the argument that was made.

[00:13:02] Speaker 01:
So in the summary judgment briefing, we said, even under your construction,

[00:13:06] Speaker 01:
where we take the combination of the horizontal portion and the ramp portion.

[00:13:11] Speaker 01:
Right.

[00:13:12] Speaker 01:
If, as I hope you do, reverse the district court's claim construction, and we have to go back and argue whether the horizontal part meets the incline, that's a different issue.

[00:13:27] Speaker 01:
But that's not one that was raised below.

[00:13:30] Speaker 03:
But I mean, we have a district court decision at A8

[00:13:36] Speaker 03:
where the district court says the patent calls for two seating surfaces that rise at different angles.

[00:13:43] Speaker 03:
Quote, the accused's tub has a flat bottom surface with a central pump to prevent an infant from slipping.

[00:13:50] Speaker 03:
These structures are not equivalent, and neither the facts nor the admitted expert testimony can support Tomi's infringement theory.

[00:13:58] Speaker 03:
In other words, the judge is seeing the seating surfaces flat,

[00:14:06] Speaker 03:
the seating surfaces, according to the claims, have to be rising at some kind of angle.

[00:14:11] Speaker 01:
And as Judge Cunningham correctly pointed out, our experts actually testified to the fact that there is a slight inclination.

[00:14:17] Speaker 03:
But you didn't raise that in your brief to us.

[00:14:21] Speaker 03:
Again, you're digging out, or thanks to Judge Cunningham, she's digging out something that was

[00:14:27] Speaker 03:
stated somewhere in the record with no support.

[00:14:30] Speaker 03:
In the same place, the expert says he didn't do any measurements.

[00:14:35] Speaker 03:
He's just eyeballing it.

[00:14:37] Speaker 03:
And then he's saying different versions.

[00:14:39] Speaker 03:
At a later point on the page, he talks about it's more of a flat inclination.

[00:14:49] Speaker 03:
So it's basically horizontal, is what he's saying.

[00:14:55] Speaker 03:
We don't you haven't made the argument and so I don't know why we would be entertaining an argument at this point My argument is a claim destruction argument, right?

[00:15:07] Speaker 03:
Your argument is about the intervening structure.

[00:15:09] Speaker 03:
There can be an integral structure for joining two things I'm saying

[00:15:14] Speaker 03:
So what?

[00:15:15] Speaker 03:
What if we give you that?

[00:15:17] Speaker 03:
Then what is the accused seating surface for the toddler?

[00:15:20] Speaker 03:
And it's flat.

[00:15:21] Speaker 03:
It doesn't have an incline unless we believe non-inclined seating surfaces are in fact inclined seating surfaces.

[00:15:31] Speaker 01:
You would then have to go to what is the scope of the claim with respect to incline.

[00:15:37] Speaker 01:
And as I mentioned this, the way the patent is written, it says that the horizontal section of the toddler seat, which is the horizontal, is the seating surface.

[00:15:48] Speaker 01:
And therefore, necessarily, the inclined surface of the toddler can be zero.

[00:15:56] Speaker 02:
Talk a little bit, I know we're, I guess, through your time.

[00:15:58] Speaker 01:
Yes, I know.

[00:15:59] Speaker 02:
Theory 2, or 2A, I don't know now, takes account of the hump in the middle being part of the seating surface, correct?

[00:16:10] Speaker 02:
Yes.

[00:16:11] Speaker 02:
What is the limit on that in your view?

[00:16:14] Speaker 02:
Like, why is that part of the seating surface?

[00:16:16] Speaker 02:
And would you say the back is also part of the seating surface?

[00:16:20] Speaker 02:
Or if there were armrests, that they would be part of the seating surface?

[00:16:23] Speaker 02:
If not, why not?

[00:16:24] Speaker 01:
Certainly not the back.

[00:16:25] Speaker 01:
The back is a separately recited element of the claim.

[00:16:28] Speaker 01:
There are backrests.

[00:16:30] Speaker 01:
The claim recites that there's a backrest and then a seating surface extends from the backrest.

[00:16:35] Speaker 02:
Okay.

[00:16:36] Speaker 02:
Fair enough.

[00:16:36] Speaker 02:
But what makes the hump, or I don't know if it's all the hump or just part of the hump, what makes that the seating surface?

[00:16:45] Speaker 02:
Is it doing something that we would think of as actually helping one sit?

[00:16:49] Speaker 01:
Sure.

[00:16:50] Speaker 01:
It helps support

[00:16:52] Speaker 01:
the child, so with an infant, for example, as they slide down, it's a tub, it's slippery, the soap and everything, as they slide down, as the documents say, and I don't think there's any dispute about this, that the hump and the surface of the hump, of course, serves as a stop.

[00:17:13] Speaker 02:
So what if I have an embodiment

[00:17:16] Speaker 02:
where I know this would never sell, I'm confident, but where I built a structure up over the tub, like a harness to hold the baby, the infant back, and I removed the hold or the hump.

[00:17:30] Speaker 02:
You're saying on your logic, all of what I built up, that superstructure to restrain the baby, that would be part of the seating surface.

[00:17:38] Speaker 01:
i'm not actually envisioning what you're describing but i don't have you ever been to an amusement park where they they pulled down are you talking about a harness yeah harness let's call it a harness over this that's part of the seating structure seating surface i i don't think so your honor and not because harnesses

[00:17:58] Speaker 01:
In the example that I gave with the baby sliding, it's still the weight of the child that's resting against that portion of the... My example, the weight is being pulled back by the harness.

[00:18:11] Speaker 02:
What's the difference?

[00:18:12] Speaker 01:
I don't really agree with that.

[00:18:14] Speaker 01:
I mean, the harness is acting as a barrier to, if you come to a sudden stop,

[00:18:21] Speaker 01:
then you slam into it.

[00:18:24] Speaker 01:
You're not rusting on top of it.

[00:18:27] Speaker 03:
I guess the question is, why isn't this pump likewise a restraint as opposed to a seating surface?

[00:18:35] Speaker 03:
I mean, what if instead of a hump, again, nobody would buy this version, but what if there was like a metal pole sticking up out of the bottom, vertical pole,

[00:18:48] Speaker 03:
Clearly, it's going to block the toddler who's sitting upright over here, right, from slipping forward or sliding forward.

[00:18:58] Speaker 03:
You know, she's got a pole right there, like a foot-tall pole.

[00:19:05] Speaker 01:
Notwithstanding the commercial and practicalities of it.

[00:19:08] Speaker 01:
Would the pole be a seating surface?

[00:19:11] Speaker 01:
Part of it would, because if the child's weight

[00:19:15] Speaker 01:
in the tub is supported by that pole, it is therefore a surface on which the child is seated.

[00:19:24] Speaker 03:
What if there's nice little armrests right here, you know, because the one-year-old likes to perch like this.

[00:19:31] Speaker 03:
Is that a seating surface?

[00:19:32] Speaker 03:
Look at this, my armrest right here is supporting my weight.

[00:19:38] Speaker 03:
Is that a seating surface?

[00:19:39] Speaker 01:
In the context of this patent, it would not be, because the patent talks about the seating surface as part of the bottom surface.

[00:19:45] Speaker 03:
OK.

[00:19:47] Speaker 03:
So anything on the bottom surface, including the pole, would be a seating surface.

[00:19:53] Speaker 03:
Not because the toddler's posterior is somehow touching up against the pole, but just because somehow the

[00:20:08] Speaker 03:
pole is not only holding the toddler in a particular place, but also because there's going to be a way for the toddler to apply some of its weight up against the pole?

[00:20:27] Speaker 03:
The last part.

[00:20:28] Speaker 03:
That sounds pretty uncomfortable.

[00:20:32] Speaker 01:
That's why it wouldn't be a commercially practical situation.

[00:20:35] Speaker 01:
But does it fit within the scope of the claim, yes?

[00:20:39] Speaker 05:
I want to just ask one question before I assume we're... Do you want to hold it?

[00:20:43] Speaker 05:
I will hold it, but I don't need it for my question.

[00:20:47] Speaker 05:
But I'll have it over here.

[00:20:50] Speaker 05:
I think you also indicated that you thought there were errors in terms of summary judgment.

[00:20:53] Speaker 05:
I'm assuming that you're pinning that on some potential genuine issues of disputes of fact.

[00:20:59] Speaker 01:
Yes, Your Honor.

[00:21:00] Speaker 05:
Do you want to just sum those up and like...

[00:21:02] Speaker 05:
10 seconds.

[00:21:04] Speaker 01:
Basically, we did submit our expert report and his findings as to how each limitation is met.

[00:21:11] Speaker 01:
That's something that a jury could consider.

[00:21:16] Speaker 01:
I think I have seven seconds, but I'm not sure.

[00:21:21] Speaker 03:
OK, we will reserve at least some time to move on.

[00:21:25] Speaker 03:
OK, thank you, Your Honor.

[00:21:26] Speaker 03:
OK, and let's hear from Mr. Rodriguez.

[00:21:28] Speaker 03:
And if you could go ahead and set him up with 20 minutes, if he needs it.

[00:21:34] Speaker 03:
Maybe he won't.

[00:21:36] Speaker 00:
We'll see.

[00:21:36] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:21:39] Speaker 00:
So the fundamental issue in this case, which I think Your Honors grasped on in questioning of Tomey's counsel, is that the tub, as designed, does not have

[00:21:50] Speaker 00:
two seating surfaces disposed at differing inclinations.

[00:21:53] Speaker 00:
And in our view, it moots infringement on both theories of infringement.

[00:21:59] Speaker 00:
And you have the tub, you've inspected it, our expert report in the record, it demonstrates that the seating surfaces are generally flat and that those aren't at different inclinations, they don't join at an apex, and so there is no infringement under either

[00:22:14] Speaker 02:
If they're both generally flat, but at different angles, could that potentially satisfy the different inclinations requirement?

[00:22:22] Speaker 00:
So I'll answer your question.

[00:22:24] Speaker 00:
It's our position that it is flat, and the evidence I think supports that.

[00:22:28] Speaker 00:
And it's not actually, I think, contested.

[00:22:30] Speaker 00:
But if it was at different inclinations, I think it still wouldn't meet the claim limitations under either theory.

[00:22:37] Speaker 00:
Under the first theory, where I guess we would be assuming that there is an intervening portion connecting the pieces, I'm assuming the court wouldn't be reading out the join at the apex requirement of claim one.

[00:22:54] Speaker 00:
And so even if you have an intervening structure, and you added that to the construction of claim one, it would still need to be an intervening structure that joins the two surfaces at an apex.

[00:23:06] Speaker 00:
that's not there in this tub.

[00:23:08] Speaker 03:
Under the second... I'm sorry, I didn't quite follow what you just said.

[00:23:12] Speaker 03:
Could you try again?

[00:23:13] Speaker 03:
Sure.

[00:23:14] Speaker 03:
Okay, so the hump wall is an intervening structure.

[00:23:19] Speaker 03:
We accept that, but there's still a problem with the distal edge of one seating surface being joined to the distal edge of the other seating surface through the intervening structure, because why?

[00:23:32] Speaker 00:
Let me make sure I have the hypothetical clear, but this is a situation where the

[00:23:36] Speaker 00:
The vertical wall on the infant side is presumed to be a seating surface.

[00:23:42] Speaker 00:
The horizontal surface of the toddler side is presumed to be a seating surface.

[00:23:48] Speaker 00:
And they're connected with the intervening portion, which counsel on the other side is highlighted in yellow in their briefs.

[00:23:55] Speaker 00:
Is that correct?

[00:23:57] Speaker 00:
So I view their argument as attempting to read out join at the apex from claim one.

[00:24:03] Speaker 00:
Is this the direct connection dispute?

[00:24:06] Speaker 00:
Yes, yes, right.

[00:24:07] Speaker 00:
So you could see a universe where I suppose that we disagree with it, where you add this intervening structure to claim one, but I don't think that justifies removing joining at the apex out of claim one, right?

[00:24:22] Speaker 03:
And in this tub... Why wouldn't this tub meet that?

[00:24:27] Speaker 00:
Because what's being joined is the distal edges of the seating surface.

[00:24:30] Speaker 03:
And I'm going to refer to a figure, though, because I think it might... So, I mean, in a way, the apex itself is a bit of an intervening structure, so to speak, because the apex doesn't have to be a point.

[00:24:44] Speaker 03:
The apex itself could be a surface.

[00:24:45] Speaker 03:
So the two distal edges are being joined at the apex, if the apex is an intervening structure.

[00:24:54] Speaker 03:
And then you have this hump wall has also been an intervening structure.

[00:24:58] Speaker 03:
Why haven't we met the claim limitation?

[00:25:00] Speaker 00:
So I'm going to refer to page 25 of our brief in answering your questions.

[00:25:04] Speaker 00:
So this is page 25 of the red brief, where there's an image from their infringement report, which has the left seating surface in red, the alleged central bottom portion in yellow, and then the right seating surface portion in purple.

[00:25:20] Speaker 00:
In our view, in that situation, the distal edge of the left seating surface is down at the bottom.

[00:25:26] Speaker 00:
And the distal edge of the right seating surface would be up at the top.

[00:25:32] Speaker 00:
And those edges would not be joined at the apex.

[00:25:35] Speaker 00:
Now, if you had a different intervening structure that was flat across the top or something like that, perhaps that could still be joined at the apex.

[00:25:42] Speaker 00:
But in this situation, there's no joining at the apex, even if there's no direct joining.

[00:25:46] Speaker 00:
Yeah, there's no direct join directly.

[00:25:48] Speaker 02:
Of course, construction is wrong.

[00:25:50] Speaker 02:
There's indirect joining.

[00:25:51] Speaker 02:
or at least the jury could find indirect joining.

[00:25:54] Speaker 00:
And I guess our position on that is that that would be reading out joining at the apex out of the claim at that point.

[00:26:00] Speaker 02:
Well, they see it as you're reading in a requirement for direct joining at the apex.

[00:26:07] Speaker 02:
That is their claim construction argument, right?

[00:26:09] Speaker 00:
That is their claim construction argument, but I think we need to understand what's behind that claim construction argument.

[00:26:14] Speaker 00:
We have in claim one the plain terms join at the apex, and the way they approach

[00:26:20] Speaker 00:
The reasoning for why the Court's construction is wrong is to focus on Claim 18.

[00:26:25] Speaker 00:
And they pretend that Claim 18 is this epitome of clarity in the specification when it's not.

[00:26:30] Speaker 00:
It refers to a central bottom portion.

[00:26:33] Speaker 00:
And that is a term that appears in the specification.

[00:26:36] Speaker 00:
But it's never used with reference to any other figure.

[00:26:38] Speaker 00:
It only appears once.

[00:26:39] Speaker 00:
And there's no explanation as to what was.

[00:26:41] Speaker 02:
If one did read Claim 18 and the central bottom portion as encompassing indirect joiner,

[00:26:47] Speaker 02:
than it has to follow under our law, doesn't it?

[00:26:50] Speaker 02:
That claim one would also have to be broad enough to include indirect joiner.

[00:26:56] Speaker 00:
It doesn't follow that it would have to include it.

[00:26:59] Speaker 00:
So a dependent claim and its meaning and scope can be an aid to construction.

[00:27:03] Speaker 00:
But we shouldn't be expanding the scope of claim one.

[00:27:06] Speaker 02:
So we could say that claim 18 just has no scope and is invalid.

[00:27:13] Speaker 02:
It can't be broader than claim one, right?

[00:27:15] Speaker 00:
I think in this situation, it would be more of a superfluous claim element than invalid.

[00:27:19] Speaker 00:
I think they focus on- Hold on a second.

[00:27:23] Speaker 03:
The premise of Judge Stark's question was that claim 18 is clearly contemplating indirect jaundice.

[00:27:31] Speaker 03:
And then you're saying,

[00:27:32] Speaker 03:
Well, that shouldn't change the scope of claim one.

[00:27:35] Speaker 03:
Claim one is restricted to direct jointer only.

[00:27:39] Speaker 03:
And so we can't say claim 18 is superfluous.

[00:27:43] Speaker 03:
Under your view, we would have to say claim 18 is invalid.

[00:27:50] Speaker 03:
Right?

[00:27:50] Speaker 00:
I guess I was thinking of two separate parallel thoughts.

[00:27:53] Speaker 00:
There's one.

[00:27:55] Speaker 03:
Well, let's stick with my thought.

[00:27:56] Speaker 00:
OK.

[00:27:56] Speaker 00:
Let's stick with our thought.

[00:27:57] Speaker 00:
Right?

[00:27:57] Speaker 00:
Yes.

[00:27:58] Speaker 03:
Yes, invalid.

[00:28:02] Speaker 00:
On the presumption that claim one requires direct joiner.

[00:28:06] Speaker 03:
Well, that's what you want.

[00:28:07] Speaker 03:
Yes.

[00:28:07] Speaker 00:
Yes.

[00:28:08] Speaker 00:
Yes.

[00:28:08] Speaker 00:
Then claim 18 is likely invalid.

[00:28:11] Speaker 00:
And that's OK.

[00:28:12] Speaker 00:
Wonderful.

[00:28:13] Speaker 00:
That's OK.

[00:28:13] Speaker 00:
Yes.

[00:28:27] Speaker 00:
On this point of claim 18,

[00:28:29] Speaker 00:
in the interpretation of the central bottom portion that they rely on for their claim construction.

[00:28:35] Speaker 00:
I do want to stress the prosecution history here, which is at... So, Appendix 695.

[00:28:55] Speaker 00:
When during prosecution,

[00:28:57] Speaker 00:
the patent office objected to the term disposed at different inclinations.

[00:29:03] Speaker 00:
Applicants responded by pointing out that with respect to figure 13 in the patent, surface 64 forms one seating surface extending that inclination angle beta 1 and the other seating surface is formed by surface 70 and the extension of surface 70 that meets surface 64 at apex 66.

[00:29:23] Speaker 05:
Council regarding the joint debt limitation, do we need to resolve the issue of whether the seating surface on the toddler side in figure 13 that we've been talking about is just surface 70 or surface 70 and its extension?

[00:29:36] Speaker 00:
So I I don't think With respect to the image in the the pattern figure 13 and refer to the version of figure 13 That's on page 13 of our brief

[00:29:55] Speaker 00:
Sorry, could you repeat the question you need to decide?

[00:29:57] Speaker 05:
Yeah.

[00:29:58] Speaker 05:
I'm asking regarding, we've been talking some about the joined at limitation.

[00:30:01] Speaker 05:
And I'm wondering to resolve the issue of, do we need to resolve this?

[00:30:05] Speaker 05:
I want you to answer this question of whether the seating surface on the toddler side in figure 13 is just surface 70, or is it surface 70 in the extension?

[00:30:18] Speaker 05:
and its extension.

[00:30:20] Speaker 05:
I think it interrelates with what I'm seeing right here on this appendix, page 695.

[00:30:23] Speaker 05:
That's why I'm posing the question.

[00:30:24] Speaker 00:
Sure, sure.

[00:30:25] Speaker 00:
So I guess in one sense, I don't think you need to resolve it simply for the reasons that we talked earlier, which is that these are flat surfaces, and there's just no way that you could read this product on these claims.

[00:30:34] Speaker 00:
However, if we're in the universe of entertaining the claim construction argument about the intervening structures, then I think this is worth looking at.

[00:30:43] Speaker 00:
And perhaps you do need to make a conclusion here.

[00:30:49] Speaker 00:
Tommy argues that the unlabeled portion, which they've highlighted in yellow, between what's marked as 70 and 66, that that's the central bottom portion.

[00:30:58] Speaker 00:
There's no support for that in the specification.

[00:31:00] Speaker 00:
It's never explained as such.

[00:31:01] Speaker 00:
The only time in the entire intrinsic record

[00:31:04] Speaker 00:
where this element is characterized is actually in the prosecution history by applicants themselves.

[00:31:11] Speaker 00:
And they characterize it as an extension of surface 70.

[00:31:15] Speaker 00:
But more than that, they say the seeding surface is formed by both surface 70 and the extension of surface 70 that meets surface 64 at apex 66.

[00:31:27] Speaker 00:
That's a pretty clear explanation of this drawing and what applicants understood that

[00:31:32] Speaker 00:
This seating surface was going to extend from what's marked second.

[00:31:35] Speaker 02:
It doesn't look as if Apex 66 is even drawn as a single point.

[00:31:39] Speaker 02:
Isn't it drawn as an intervening structure itself?

[00:31:42] Speaker 00:
Well, and that's why I was suggesting there is perhaps a universe where this vague and ambiguous concept of a central bottom portion could just be referring to what we've colored an orange portion around Apex 66.

[00:31:55] Speaker 02:
I ask you, the district court's claim construction of the Joinder term

[00:32:02] Speaker 02:
The appellant argues it excludes an embodiment disclosed in the specification.

[00:32:09] Speaker 02:
I see you as implicitly agreeing with that, because you spent a lot of time in the red brief arguing, but it's not a preferred embodiment.

[00:32:17] Speaker 02:
Do I understand you correctly?

[00:32:18] Speaker 02:
You just say it's not a preferred embodiment, but there is an embodiment that is excluded by the district court's construction.

[00:32:25] Speaker 00:
I don't think we would say that there's an embodiment that is excluded by the district court's construction.

[00:32:30] Speaker 00:
We do push back hard on the idea that

[00:32:32] Speaker 00:
this central bottom portion is part of the preferred embodiment.

[00:32:36] Speaker 00:
I think that's fairly clear from the specification that it's not part of the preferred embodiment.

[00:32:41] Speaker 00:
There is language in the specification that talks about the central bottom portion.

[00:32:44] Speaker 00:
However, I do not think there's enough detail or explanation as to what this central bottom portion is or what it should do to understand if it's a separate embodiment or if it's just sort of another label for what's been identified as 66 in the specification.

[00:33:00] Speaker 02:
If I read Figure 13 as indicating 66 may be a structure and not a point, then isn't that embodiment of Figure 13, preferred or not preferred, but clearly disclosed, isn't it excluded under the district court's current construction?

[00:33:20] Speaker 02:
Because the two seating surfaces are not directly touching one another.

[00:33:25] Speaker 00:
I don't think so, because the court's construction did allow that the apex could be an area of a high point.

[00:33:31] Speaker 00:
And so I think that- But it also required direct join during the seating surfaces, did it not?

[00:33:35] Speaker 00:
It required direct join during the seating surfaces, but I think they were directly joined in that area of 60.

[00:33:40] Speaker 03:
I guess the idea would be to draw a straight line through everything the district court said, is they're joined together through the apex.

[00:33:52] Speaker 03:
And if the apex is a single point, so be it.

[00:33:57] Speaker 03:
If the apex is a bigger structure, maybe something that's got a broad curve in it, then so be it.

[00:34:08] Speaker 03:
And then maybe central, I forget what the word is, central bottom surface portion

[00:34:19] Speaker 03:
could be equated in that way to an apex that has not just a point but some broad curve to it.

[00:34:30] Speaker 05:
Are you saying that the apex surface is part of the scene surface or distinct from the scene surface?

[00:34:36] Speaker 05:
the apex surface.

[00:34:37] Speaker 05:
Or maybe I should just say apex.

[00:34:39] Speaker 00:
I don't want to put too many surfaces in there at you.

[00:34:41] Speaker 00:
Thank you.

[00:34:41] Speaker 00:
I appreciate it, Your Honor.

[00:34:43] Speaker 00:
So I think the apex does need to be on the bottom surface portion.

[00:34:48] Speaker 00:
I mean, all of this is on the bottom surface.

[00:34:51] Speaker 00:
I think one problem with Tomi's arguments here, and I think it came through in their introductory argument, they said everything is inclined.

[00:34:58] Speaker 00:
And I think we make this point in our brief that what they're really

[00:35:01] Speaker 00:
trying to argue with these claim construction arguments is that pretty much any geometry on the bottom surface of the tub would be captured by this claim.

[00:35:09] Speaker 05:
So is the answer that the apex is not part of the seating surface?

[00:35:13] Speaker 05:
Is that your answer?

[00:35:14] Speaker 00:
Well, I guess the apex, what I believe I said was that the apex is part of the bottom surface.

[00:35:19] Speaker 00:
I don't think the apex is part of the seating surface necessarily, but it is where the disalleges of the seating surfaces would be joined.

[00:35:29] Speaker 02:
There's a dispute, I think, maybe, that we haven't touched on.

[00:35:33] Speaker 02:
The appellant argues that the correct construction of APEC should not require it to stretch most of the width of the tub.

[00:35:42] Speaker 02:
And I understand you to be saying you agree it shouldn't.

[00:35:45] Speaker 02:
It doesn't have to stretch most of the width of the tub.

[00:35:49] Speaker 02:
You just don't think the district court required that.

[00:35:51] Speaker 02:
Is that your position?

[00:35:53] Speaker 00:
I don't know that I'd say we would agree with it, but I think we agree that that wasn't part of the magistrate judge's construction and that the district court judge at summary judgment made clear that they weren't relying on that.

[00:36:10] Speaker 00:
for moving on some reason.

[00:36:11] Speaker 02:
So if, for some reason, we were sending this case back, what, if anything, would you have us do with this point of whether or not the apex has to stretch most of the width of the tub?

[00:36:20] Speaker 02:
Is there an issue for us?

[00:36:22] Speaker 00:
I don't think there's an issue, because I don't think it is actually part of the construction.

[00:36:27] Speaker 03:
Well, arguably, the magistrate, it was for the magistrate.

[00:36:30] Speaker 03:
The district court's ultimate decision said that part didn't matter of what the magistrate said.

[00:36:37] Speaker 00:
I agree with that.

[00:36:39] Speaker 00:
May I keep going?

[00:36:40] Speaker 00:
The magistrate judge did talk about this, but the magistrate judge's discussion during claim construction about this point

[00:36:48] Speaker 00:
was in response to an argument the summer infant had made about how the apex should be a single point.

[00:36:56] Speaker 00:
And she was explaining how that doesn't make sense in light of the embodiment of the specification stretching across the width of the tub.

[00:37:05] Speaker 02:
That's one more.

[00:37:06] Speaker 02:
I'm not sure if we got your view on

[00:37:10] Speaker 02:
this sort of fundamental dispute under, I think, what we called theory two, the seating surface and whether the hump, the vertical part of it, could be part of the seating surface.

[00:37:22] Speaker 02:
Why should we not view that as, on this record, a fact dispute?

[00:37:27] Speaker 02:
The district court seems to have, I think it was maybe starting with Matt for a judge's sake, it just defies common sense to think that

[00:37:35] Speaker 02:
in this tub anyone would view any vertical part of the hold to be any component of the seating surface.

[00:37:42] Speaker 02:
Why isn't that simply a dispute of fact?

[00:37:45] Speaker 02:
They've got an expert who's willing to stand behind it.

[00:37:48] Speaker 02:
Why shouldn't that just go to the jury?

[00:37:50] Speaker 00:
Sure, so I mean I think our primary point on that is that no reasonable jury could conclude on this record.

[00:37:56] Speaker 00:
What would make it unreasonable?

[00:37:57] Speaker 00:
Yeah, so the reason is all the evidence with some minor minor exceptions that I'll address

[00:38:02] Speaker 00:
all point in fact that the accused hub has a flat bottom surface, and that the hump, the sides of the hump, are not ever considered seats by anyone.

[00:38:11] Speaker 00:
We've got multiple references to how it's a stop, including by their own expert at that position explaining how it serves and functions as a stop, while also admitting that the flatter portions are the seating surface.

[00:38:23] Speaker 00:
Tony's original position in this case, in the demand letter at appendix 154 and in the 30B6 deposition at 1770,

[00:38:32] Speaker 00:
You know, their infringement theory was premised on the flat surfaces, not on the edges of the hump being a seating surface.

[00:38:40] Speaker 00:
So there's that as well.

[00:38:43] Speaker 00:
We have our expert Gordon's testimony and report as well about this, all basically siding with us on that.

[00:38:50] Speaker 00:
There's a part in the Gordon report.

[00:38:52] Speaker 00:
I think we put the images into our brief at page 5.

[00:38:59] Speaker 00:
of the child sitting in the tub, so a toddler sitting in the tub and an infant sitting in the tub, and how they're not using the sides of the wall as a seat, it's just a stop.

[00:39:08] Speaker 00:
And the only two things that

[00:39:13] Speaker 00:
Tony has pointed to as raising a potential question of fact is a slide from Summer infants production that's where a proposed design for this tub It's not the final design if you look at it You can see clearly it's not the final design of the tub says come towards seat and points to the hump it says a contoured seat and it points to the area of the hump we the the

[00:39:36] Speaker 00:
I dispute that the arrows pointing to the hump or was intended to point to the hump because there are two seats there and it just says contoured seats, so I believe it's referring to the general area.

[00:39:47] Speaker 00:
But beyond that,

[00:39:49] Speaker 00:
I don't think that outweighs all the other evidence and that it would be reasonable for a jury to conclude that.

[00:39:53] Speaker 00:
The other point of evidence they point to is the testimony of a former employee who was talking about the design around.

[00:40:00] Speaker 00:
And Sore Infant did implement a design around to avoid the last element of the claim, which we haven't talked about, which is the stacking height.

[00:40:07] Speaker 00:
And the reference to potential infringement there is pretty clearly to the

[00:40:12] Speaker 00:
Redesign of the stacking height not about whether you know the claim as a whole would infringe and that witness was not qualified to offer infringement opinions or anything like Okay, I think we have to go all right.

[00:40:25] Speaker 00:
Thank you.

[00:40:26] Speaker 03:
Thank you We'll have four minutes um

[00:40:38] Speaker 01:
Let me just ask you if you have any specific questions regarding, because otherwise I'll just hit some of them.

[00:40:44] Speaker 01:
Okay, with respect to Judge Tartt's question, everything that counsel had just laid out about what does this internal document mean, or what did their firm project engineer mean when he talked about infringement.

[00:40:59] Speaker 01:
Those are all factual questions, and those are all issues that can properly go before a jury.

[00:41:04] Speaker 01:
This question about whether a stop is a seat, I mean, a seat stops the downward movement of somebody who would otherwise fall on the ground.

[00:41:17] Speaker 03:
Right, but this pump doesn't do that.

[00:41:19] Speaker 03:
The flat part does that.

[00:41:22] Speaker 03:
I guess the problem I'm having is

[00:41:24] Speaker 03:
A seating surface is a surface that you sit on, not sit against.

[00:41:30] Speaker 03:
And your theory is the seating surface encompasses things that you sit on and things you sit against.

[00:41:38] Speaker 03:
And that's where I'm having trouble.

[00:41:41] Speaker 01:
I think that a seating surface is something that supports the weight in all or in part of the occupant.

[00:41:55] Speaker 01:
And so... Right.

[00:41:56] Speaker 03:
You understand why that's too broad for me to accept, because that encompasses the backrest.

[00:42:00] Speaker 03:
That encompasses an armrest.

[00:42:02] Speaker 03:
It encompasses a headrest.

[00:42:04] Speaker 03:
It encompasses just about anything that could be said to give support in part to the weight of the top.

[00:42:10] Speaker 01:
I'm sorry to interrupt.

[00:42:13] Speaker 01:
In conjunction with the rest of the claim, it's not too broad.

[00:42:16] Speaker 01:
In conjunction with the rest of the claim, it's got to be part of the bottom surface.

[00:42:19] Speaker 01:
So the armrest example that you gave would not be part of the bottom surface.

[00:42:23] Speaker 01:
the backrests are already claimed as a separate element.

[00:42:27] Speaker 01:
So I do not believe that is.

[00:42:30] Speaker 03:
So anything that is erected from the bottom surface that could be said to partially support the weight, if the child leans in one direction versus another direction, then that's fair ground to be considered a seating surface.

[00:42:47] Speaker 01:
Within the scope of the claim, yes.

[00:42:52] Speaker 01:
Just one final... Foot rest?

[00:42:56] Speaker 01:
I'm sorry?

[00:42:57] Speaker 03:
Does the foot rest the seating surface?

[00:43:00] Speaker 03:
I never want to put my feet up a little bit, so let's get a little four inch raised area for my foot while I'm sitting in the bathtub.

[00:43:11] Speaker 01:
Why wouldn't it be?

[00:43:11] Speaker 01:
It would be a seat for your feet.

[00:43:16] Speaker 03:
Yeah, this claim's a lot broader than I thought.

[00:43:22] Speaker 03:
Okay.

[00:43:23] Speaker 01:
Well, and that was one issue that Council raised a couple times, and I just want to really quickly hit it, is that, and you had asked the questions about invalidity and the like, but you've already got a ruling on summary judgment of the invalidity, and that hasn't been challenged.

[00:43:41] Speaker 02:
Can you tell me, how do the issues fit together?

[00:43:44] Speaker 02:
I've kind of lost track of that.

[00:43:45] Speaker 02:
We've talked about so many things.

[00:43:48] Speaker 02:
If you went on the direct join or claim construction, where are we after that?

[00:43:52] Speaker 02:
Do we have to reach all these other issues?

[00:43:55] Speaker 01:
No, I think we need to remand.

[00:43:56] Speaker 01:
Because if the claim construction on join debt is incorrect, which obviously I think it is, then that pervades all the other issues.

[00:44:04] Speaker 01:
That's your first issue.

[00:44:06] Speaker 02:
Yes.

[00:44:07] Speaker 02:
So let's just say that we agree with you on that.

[00:44:11] Speaker 02:
Do we reach any other issues, or we just send it back for more proceedings on that claim construction?

[00:44:16] Speaker 01:
Well, you would need to reverse the exclusion of the expert.

[00:44:20] Speaker 01:
Correct.

[00:44:21] Speaker 01:
And then, obviously, the summary judgment.

[00:44:22] Speaker 03:
But I thought you were still stuck with having nothing more than a flat, horizontal seating surface.

[00:44:28] Speaker 03:
But the judge said, you know, it's not inclined, and so therefore you can't.

[00:44:34] Speaker 01:
Not with respect to all his opinions.

[00:44:36] Speaker 01:
I mean, like I said, because the summary judgment was after the claim construction,

[00:44:40] Speaker 01:
we base the summary judgment motion on the claim of construction that the court had issued.

[00:44:45] Speaker 01:
But if that's wrong, then we have other evidence that's not been presented here.

[00:44:53] Speaker 02:
Would you have us reach what we call theory two and all the other issues if, just say, hypothetically, you want on the first claim construction issue?

[00:45:01] Speaker 02:
Should we go on and address these other issues?

[00:45:02] Speaker 01:
Oh, you're asking me if, even if you agree that the claim of construction is wrong, should we still decide whether summary judgment should be granted in our favor?

[00:45:11] Speaker 01:
Okay, that might be one way to put it, but... I would like you to grant summary judgment in our favor so we don't have to go back, but it's... I mean, if... Do we have to get to Theory 2?

[00:45:23] Speaker 02:
It's my question.

[00:45:24] Speaker 02:
If you went on Direct Joinder, do we have to get to the seating surface issues one way or another?

[00:45:30] Speaker 01:
I don't know if that's a question for me.

[00:45:32] Speaker 01:
That might be above my pay grade.

[00:45:33] Speaker 01:
I think that...

[00:45:34] Speaker 04:
I mean, we'll make the ultimate decision.

[00:45:36] Speaker 01:
Yeah, exactly.

[00:45:37] Speaker 04:
We want your point of view.

[00:45:38] Speaker 04:
That's what he's asking for.

[00:45:39] Speaker 01:
Oh, my point of view is if there's a reversal on the claim construction, those issues would have to be sent back unless you are fined.

[00:45:46] Speaker 01:
Even under the court's incorrect claim construction, we would win on summary judgment.

[00:45:51] Speaker 01:
I don't know procedurally if that can happen or not, because you would have already found that the claim construction is wrong.

[00:45:56] Speaker 01:
Thank you.

[00:45:58] Speaker 03:
OK.

[00:45:59] Speaker 03:
Thank you very much.

[00:46:00] Speaker 03:
The case is submitted, and that concludes today's arguments.