[00:00:00] Speaker 00:
Our third case this morning is number 23, 2047, Miller Industries Towing Equipment versus NRC Industries.

[00:00:12] Speaker 00:
Okay, Mr. Mazza.

[00:00:14] Speaker 00:
Thank you.

[00:00:15] Speaker 01:
May it please the court for planning... Excuse me.

[00:00:20] Speaker 01:
This case is a claim construction case for patent infringement.

[00:00:24] Speaker 01:
It concerns a large tow truck or wrecker with this unique movable and strategically located control panel.

[00:00:32] Speaker 01:
That was the claim termination control panel that provides operators with better sight lines and an ergonomic positioning during vehicle recovery.

[00:00:42] Speaker 01:
So when the control panel is moved out, the operator has better sight lines to, say, a vehicle over a bridge.

[00:00:51] Speaker 01:
And when the control panel's in a downwardly angle position, the operator has better ergonomic or plyometric positioning of the hands.

[00:00:59] Speaker 01:
And these operations can take a while.

[00:01:02] Speaker 01:
Miller accepted a judgment of non-infringement, given the district court's claim construction that the control panel must be a singular or one-piece, quote, unit on which controls for the wrecker are attached or integrated.

[00:01:15] Speaker 01:
That's an A7.

[00:01:18] Speaker 01:
Here, a one-piece control panel is disclosed in figure 3 of the patent, and a two-piece control panel is disclosed in figure 3A of the patent.

[00:01:29] Speaker 01:
Figure 3 shows a door.

[00:01:31] Speaker 01:
The record controls are supported by the door.

[00:01:33] Speaker 01:
The door is outwardly hinged, and the control panel allows the control panel to be moved in and out of the compartment, and the door closes the compartment.

[00:01:45] Speaker 01:
Figure 3A shows a shelf sliding outwardly that supports and moves the control panel, and the door also closes the compartment.

[00:01:54] Speaker 02:
So where in the specification can you point us that gives us some indication that

[00:02:00] Speaker 02:
figure 3A, the door element number 27 prime, is part of the control panel.

[00:02:10] Speaker 02:
My understanding, I'll just tell you off the top, is that the control panel is with where all the controllers are, and the door is a separate thing from the control panel.

[00:02:24] Speaker 02:
In fact, I think you have a claim that actually

[00:02:27] Speaker 02:
makes that quite clear, Claim 22.

[00:02:30] Speaker 01:
Thank you, Ryan.

[00:02:31] Speaker 01:
So there's a tripartite function given in the claims, for example, Claim 1, that says that the control panel has these three functions.

[00:02:40] Speaker 01:
It supports the record controls, it says that it moves the record controls in and out of the compartment, and it says that

[00:02:49] Speaker 01:
It closes the compartment.

[00:02:51] Speaker 01:
It says the control panel does all three things.

[00:02:54] Speaker 01:
Now we claim for the control panel.

[00:02:56] Speaker 01:
I'm sorry.

[00:02:57] Speaker 02:
Getting back, I mean, that's true for the embodiment of figure 3.

[00:03:02] Speaker 02:
Now let's talk about whatever is in the written description that helps you as to figure 3a, which you want to fit into this claim, on how this written description describes

[00:03:17] Speaker 02:
panel, door 27 prime, as part of the contemplated control panel.

[00:03:22] Speaker 01:
So at A45, column five, lines one to four, the written description describes that the record control is located on the shelf and an upper door closes the tool box.

[00:03:38] Speaker 01:
And in claim four, similarly, claim four describes that the sliding shelf supports the record controls

[00:03:46] Speaker 01:
And therefore, claim one has to be broader than that.

[00:03:51] Speaker 01:
And the only example of a shelf supporting the controls is one where the door closes the controls.

[00:04:00] Speaker 00:
So control panel.

[00:04:01] Speaker 00:
I'm confused.

[00:04:02] Speaker 00:
I mean, I'm looking at column five.

[00:04:03] Speaker 00:
It keeps referring to the control panel as 30, right?

[00:04:11] Speaker 00:
And in, excuse me.

[00:04:14] Speaker 00:
In Figure 3, 30 closes it.

[00:04:17] Speaker 00:
But in Figure 3A, it's a different item, which is 27 prime, which closes it, right?

[00:04:25] Speaker 00:
Or 25 prime, I guess it is, that closes it.

[00:04:30] Speaker 01:
You are correct, Your Honor, that the application's file used Council 30 or Control Panel 30 to mean something different.

[00:04:39] Speaker 01:
The claims clearly changed that as they were revised during the file history.

[00:04:45] Speaker 01:
And the file history made it clear what the changes were.

[00:04:48] Speaker 00:
Well, how does the change language make that clear?

[00:04:51] Speaker 00:
I'm puzzled.

[00:04:53] Speaker 00:
Because all the change was to make sure that it's the control panel mounted on this slab that closes the compartment, right?

[00:05:08] Speaker 01:
Well, the file history says that the control panel can either be a shelf, in which case it's a two-piece structure, because that's the only example in the patent, a shelf that carries the controls and a door that closes.

[00:05:23] Speaker 01:
Or the file history also says it can be a door.

[00:05:26] Speaker 01:
The control panel can be a door.

[00:05:28] Speaker 01:
And that's it.

[00:05:30] Speaker 01:
A558, the July 27, 2015 amendment,

[00:05:38] Speaker 01:
Okay, and just to try to answer your question again, also at A44, column four, lines 30 to 34, the patent explains that it will be appreciated

[00:05:54] Speaker 01:
that the same or similar ergonomic and enhanced sideline advantages may be obtained by locating record controls.

[00:06:04] Speaker 00:
I'm sorry, I'm confused.

[00:06:06] Speaker 00:
I look at page 16 of the red brief which sets forth the prosecution history and it describes on that page what the amendment was.

[00:06:14] Speaker 00:
and underscores the amended language, which says that we're in the control panel, is operable to close off the interior compartment.

[00:06:23] Speaker 00:
How does that help you get to including figure 3A within the scope of the claim?

[00:06:31] Speaker 00:
I just don't see the connection with the amended language in 3A.

[00:06:35] Speaker 00:
16 of the right brief.

[00:06:41] Speaker 01:
Oh, you're referring to the final amendment.

[00:06:43] Speaker 01:
Okay.

[00:06:43] Speaker 01:
So our point is, the final amendment is generic to Figures 3 and 3A.

[00:06:47] Speaker 01:
There's nothing said in the final amendment that limits it to either a one-piece or a two-piece structure.

[00:06:54] Speaker 01:
If you look at Figure 3A and compare it to Figure 3, everything that's, the revisions that are in that final amendment are generic to both drawings.

[00:07:02] Speaker 01:
They apply, those revisions apply to both drawings.

[00:07:07] Speaker 00:
Well, only a control panel includes the separate door.

[00:07:11] Speaker 00:
But there's no indication that it does.

[00:07:14] Speaker 01:
Well, it must.

[00:07:16] Speaker 01:
And our reasoning is the claim language controls and the claim language says that the control panel closes the compartment.

[00:07:25] Speaker 01:
And with Figure 3, the door does that.

[00:07:28] Speaker 01:
With Figure 3A, the door does that.

[00:07:31] Speaker 01:
And so therefore, the control panel must include a door or the shelter, for example.

[00:07:42] Speaker 02:
cart before the horse, assuming the conclusion.

[00:07:45] Speaker 02:
We're on a pathway where we're trying to figure out what the claim actually encompasses.

[00:07:55] Speaker 02:
And does it, in fact, encompass figure 3A?

[00:07:58] Speaker 02:
You're assuming that it must.

[00:08:01] Speaker 02:
And I don't think that's necessarily true that it must.

[00:08:03] Speaker 02:
Of course, you can write a claim that's directed to only one of two differently disclosed embodiments.

[00:08:09] Speaker 02:
And when I look at the interview summary,

[00:08:12] Speaker 02:
and the reasons for allowance, they really both underscore the idea that the controls and the control panel are part and parcel with the door.

[00:08:26] Speaker 02:
And so the control panel itself is closing off the compartment.

[00:08:32] Speaker 02:
And so there's a misalignment with the embodiment with the figure 3A, where

[00:08:42] Speaker 02:
In contrast, it's much more in line with what Figure 3 is disclosing.

[00:08:48] Speaker 01:
I can understand a visceral reaction, but I don't agree, Your Honor.

[00:08:53] Speaker 01:
For example, the Notice of Allowance for Claims 1, 14, and 16 says nothing about it at all.

[00:08:59] Speaker 00:
Okay, but I think Judge Chen has a good point.

[00:09:01] Speaker 00:
If you look at figure 3A, the 30 is the control panel and 27 prime is this separate door.

[00:09:09] Speaker 00:
There's no indication that 27 prime is part of 30.

[00:09:16] Speaker 02:
And that's entirely consistent with the first passage on column 5 that you pointed us to that identifies supporting counsel 30 and then a separate element

[00:09:27] Speaker 02:
called upper door 27.

[00:09:29] Speaker 02:
It's not 27 prime.

[00:09:31] Speaker 02:
It's not treating door 27 prime as a part of the control or console 30.

[00:09:38] Speaker 01:
Throughout the patent, it's consistent in the intrinsic record.

[00:09:42] Speaker 01:
For example, at day 43, column 2, lines 4 to 14, the patent consistently says that the control, it says that the shelf can be the support mechanism.

[00:09:57] Speaker 01:
Okay.

[00:09:59] Speaker 01:
And the notice of allowance and final amendment don't detract from that.

[00:10:04] Speaker 01:
The revisions to the final amendment just talked about opening and closing the compartment in ways that are consistent with either figure three or figure three A. And the notice of violence says nothing about a door.

[00:10:18] Speaker 01:
There's a good reason why claim one left door out.

[00:10:20] Speaker 01:
There's a good reason why claim four talks about a shelf and claim three talks about a door.

[00:10:26] Speaker 01:
Because claim one is broader than either the shelf-door combination or the door combination.

[00:10:32] Speaker 01:
And again, we say that the claim language drives the ship here.

[00:10:38] Speaker 01:
The claim language sets, it specifically says the control panel does these three things, this tripartite function.

[00:10:48] Speaker 00:
At the time of the Sixth Amendment, the final amendment, if I understand correctly, Claim 22 was also amended, correct?

[00:10:57] Speaker 00:
Correct.

[00:10:58] Speaker 00:
And how was Claim 22 amended at that point?

[00:11:02] Speaker 00:
What language was added to Claim 22?

[00:11:04] Speaker 01:
The language that was added is that A744, which is volume

[00:11:18] Speaker 01:
A door separate from the control panel for closing and opening the interior compartment, where the door is sliding, generally, vertically moving.

[00:11:27] Speaker 00:
That sort of suggests that they took the 3A embodiment and included it in 22.

[00:11:34] Speaker 01:
And it may well be correct, but that doesn't detract from the fact that claim 1 and claim 14 are broad enough to cover both drawing examples.

[00:11:46] Speaker 02:
The claim says that the control panel, when it's in a first position, is stored within the interior of the compartment of the record.

[00:12:01] Speaker 02:
So the DOOR 27 is not stored within the interior compartment when the control panel is in the first position.

[00:12:16] Speaker 02:
Isn't that right?

[00:12:17] Speaker 01:
You can make that argument, I would say no.

[00:12:21] Speaker 01:
The interior of the door is stored within the interior of the apartment.

[00:12:26] Speaker 02:
The door, in door 27 prime, it's forming one of the walls of the interior compartment.

[00:12:33] Speaker 02:
It's not within the interior compartment.

[00:12:36] Speaker 02:
Fair enough.

[00:12:36] Speaker 02:
OK, so there's a, I guess the problem is that's some very real tension in the claim with what your proposed construction of the claim is.

[00:12:45] Speaker 01:
I don't think so, Your Honor, because whether it's figure 3 or figure 3A, the door is the closure mechanism.

[00:12:53] Speaker 02:
And the claim also requires that when the control panel is in the second position, that the control panel is remote from the vehicle.

[00:13:06] Speaker 02:
Right.

[00:13:06] Speaker 02:
And that's not true for

[00:13:08] Speaker 02:
door 27 prime in figure 3a right well it's not remote from the exterior of the vehicle it's you know it's up inside the vehicle that's true but later on in the claim talks about the control panel being in a downward extended position

[00:13:25] Speaker 01:
and the portion of the control panel that's in the downward-accent position has it based in at a discipline.

[00:13:31] Speaker 01:
And I think it's clear for claim one that that's what it's referring to, and the unrebutted testimony of Mr. Brown, the only post-it testimony, the only expert testimony, says that.

[00:13:43] Speaker 00:
Why do we care about that when the intrinsic evidence seems to supply the answer?

[00:13:49] Speaker 00:
Why do we care what a posa said when we have intrinsic evidence which enables us to construe the claim?

[00:13:56] Speaker 01:
Well, I agree.

[00:13:58] Speaker 01:
I think the intrinsic evidence is clear here.

[00:14:00] Speaker 01:
But to the extent that there have been questions raised, like is the interior of the door still needed within the compartment, I think you can look to post the testimony to say this is clearly what was intended.

[00:14:13] Speaker 01:
And you mentioned very quickly, you mentioned Council 30.

[00:14:17] Speaker 01:
If you look at Figure 4, Council 30 does not close the door.

[00:14:22] Speaker 01:
The door closes.

[00:14:23] Speaker 01:
It does not close in the compartment, excuse me.

[00:14:25] Speaker 01:
The door closes in the compartment.

[00:14:27] Speaker 01:
Council 30 only partially closes the compartment.

[00:14:31] Speaker 01:
It has to be the door.

[00:14:32] Speaker 01:
Unless there's further questions, may I?

[00:14:34] Speaker 00:
All right, we'll give you 10 minutes for revival.

[00:14:48] Speaker 03:
Good morning, Your Honors.

[00:14:49] Speaker 03:
May it please the Court, Alexander Olson, on behalf of Appellee NRC Industries.

[00:14:55] Speaker 03:
I think that the panel already understands the issue here, which is we're talking about does control panel mean one thing, or does it mean one thing plus a separate door?

[00:15:04] Speaker 03:
And I would submit that all of the intrinsic evidence supports that it means, in fact, one thing.

[00:15:08] Speaker 03:
So that visceral initial reaction that it's one thing is sort of

[00:15:15] Speaker 03:
abundantly supported throughout the entirety of the patent, the specification, the claim language, the prosecution history.

[00:15:25] Speaker 03:
So I think that Judge Chen has already zeroed in on one of the most important parts, and it's Claim 22, which both parties agree is directed to and covers the Figure 3A embodiment.

[00:15:38] Speaker 03:
So the embodiment where there's a separate door, and then it slides out on the shelf.

[00:15:41] Speaker 03:
And the wording of Claim 22 has

[00:15:44] Speaker 03:
a control panel and then a door separate from the control panel.

[00:15:48] Speaker 03:
So it's very clear that control panel, at least in that claim, does not include the door.

[00:15:54] Speaker 03:
And what Miller's asking this panel to do and has asked the district court to do is to say, oh, but for these other claims, for claims 1, 14, and 16,

[00:16:03] Speaker 03:
actually a separate, unattached, independently moving door in part of the control panel.

[00:16:08] Speaker 03:
And there's a presumption in patent law that the same claim term used in different claims means the same thing.

[00:16:14] Speaker 03:
And I would posit that that's especially true here, where we're talking about a structure.

[00:16:18] Speaker 03:
This is not something that the cases that

[00:16:23] Speaker 03:
The Miller sites discuss terms like substantially, substantially pure.

[00:16:28] Speaker 03:
You know, things where you can envision it might mean something different depending on the context.

[00:16:32] Speaker 03:
Here we're talking about a physical part of the apparatus.

[00:16:36] Speaker 03:
So respectfully, I think that the cases that Miller has cited on that point are inapposite.

[00:16:47] Speaker 03:
Then I think Judge Chen, you also zeroed in on some of the surrounding claim language, which does not make sense if you consider a control panel to be control panel plus a separate, unattached, independently moving door.

[00:17:00] Speaker 03:
And it's things like the base end and the dispel end.

[00:17:02] Speaker 03:
How do I know what's the base end and the dispel end if it's two things that aren't attached and move separately?

[00:17:09] Speaker 03:
And similarly, in the first storage position, in the second operable position,

[00:17:15] Speaker 03:
Let's say that in the shelf and door example, the door is open but the controls are not yet extended.

[00:17:21] Speaker 03:
Are we in the first position or the second position?

[00:17:24] Speaker 03:
It's not answered.

[00:17:25] Speaker 03:
And the reason it's not answered is because it was never contemplated that

[00:17:31] Speaker 03:
that the term control panel would include a separate, unattached door.

[00:17:35] Speaker 03:
It was contemplated, like in the Figure 3 example, that the control panel would include an attached door.

[00:17:41] Speaker 03:
So in their primary example, the controls are on the door, you fold the door down, and you are able to access the controls.

[00:17:48] Speaker 03:
So that language makes sense.

[00:17:50] Speaker 03:
It no longer makes sense if we're saying, oh, but control panel actually means these two unrelated things that move separate.

[00:18:00] Speaker 02:
What do we do with dependent claim four, which says the control panel comprises an outwardly sliding shelf?

[00:18:08] Speaker 02:
That's clearly not directed to figure three anymore.

[00:18:11] Speaker 03:
You're right, Your Honor.

[00:18:13] Speaker 03:
I agree with that, and I think there's a couple of answers.

[00:18:17] Speaker 03:
One is, if you really look at the prosecution in history, that's a vestige of sort of how we got to

[00:18:23] Speaker 03:
to where we got to.

[00:18:24] Speaker 03:
Originally, Miller tried to get claims on sort of a generic idea of a wrecker with controls that are movable.

[00:18:31] Speaker 03:
And if you look at those early claims, it made sense that we want movable controls.

[00:18:37] Speaker 03:
And then claim three is they're going to be on the door.

[00:18:39] Speaker 03:
Claim four is they're going to be on a sliding shelf.

[00:18:42] Speaker 03:
Later in prosecution, the examiner required them to amend the claims so that they no longer had that breadth.

[00:18:50] Speaker 03:
So the vestige of that remains.

[00:18:55] Speaker 03:
And maybe the examiner didn't look as carefully, as closely at the dependent claims.

[00:19:05] Speaker 02:
It's- Are you saying claim four is invalid?

[00:19:09] Speaker 03:
It potentially, there may not be a written description for claim four.

[00:19:13] Speaker 03:
Or I think that the doctrine of- Or it's indefinite?

[00:19:17] Speaker 02:
I mean, I don't understand.

[00:19:19] Speaker 02:
I mean, it's presumptively valid, right?

[00:19:22] Speaker 03:
Yes.

[00:19:22] Speaker 03:
Yes.

[00:19:23] Speaker 03:
I would say that it's- well,

[00:19:28] Speaker 03:
In our brief, we reference a potential example that could satisfy that claim for, which is sort of the filing cabinet style, where you would say, arguably, that is a sliding shelf that closes off access to the compartment.

[00:19:41] Speaker 03:
And that's in, we have a picture in appendix 1269.

[00:19:45] Speaker 03:
Yes, we have a picture.

[00:19:53] Speaker 03:
If a person of ordinary skill in the art could, I believe, conceive of a design that was on a sliding shelf that still met the closing off the compartment door example.

[00:20:05] Speaker 03:
But even beyond that, claim differentiation isn't absolute.

[00:20:09] Speaker 03:
If we want to have the claims have different scope and everything makes sense.

[00:20:17] Speaker 03:
But in this case, I would say that the dependent claims

[00:20:23] Speaker 03:
are sort of infected by the prosecution history and maybe are no longer the model of clarity.

[00:20:31] Speaker 03:
But I would say, given our example, it is an example that the filing cabinet is an example that makes sense, that could satisfy that claim, that's different in scope than that claim one, and which doesn't require us to do the mental gymnastics of saying, oh, but control panel actually means this plus a separately independent moving door.

[00:20:54] Speaker 03:
And then even beyond just sort of the plain language, I think, Judge, you may have mentioned this.

[00:21:00] Speaker 03:
The prosecution history is quite clear that the examiner was unwilling to give Miller a patent on this general idea of a wrecker with movable controls.

[00:21:11] Speaker 03:
They asked, he said no.

[00:21:12] Speaker 03:
They asked, he said no.

[00:21:13] Speaker 03:
There were five rounds of amendments where they really tried to keep that claim scope.

[00:21:18] Speaker 03:
And the examiner was steadfast in saying, no, I believe that's obvious over the prior art.

[00:21:22] Speaker 03:
Then if we look at the last set of amendments and the interview summary and the notice of allowance, we can see it was critical to the examiner that Miller be limited to these specific structures.

[00:21:39] Speaker 03:
Okay, I mean, in energy summary paraphrasing, he said, okay, if you amend the claims to make them specific to the structure, such as adding door 25, then they would be allowable.

[00:21:50] Speaker 03:
And so it's clear he's saying, if you limit the claims in this way, you can have Miller does what he says.

[00:21:58] Speaker 03:
Now they didn't add the word door to claims 1 to 14, but they did say, well, the control panel is operable to close off the interior compartment.

[00:22:08] Speaker 03:
So in effect, limiting into that structure, or at least some structure where the control panel itself, and not a separate door, closes off that compartment.

[00:22:18] Speaker 03:
And more than that, Miller said that's what they were doing.

[00:22:21] Speaker 03:
In their remarks accompanying that last amendment, they said,

[00:22:25] Speaker 03:
It was discussed in the interview that if the claims were amended as they now have been, they would be allowable.

[00:22:32] Speaker 03:
So anyone looking at this prosecution history from an objective standpoint would say

[00:22:38] Speaker 03:
They did what he said.

[00:22:40] Speaker 03:
They limited the claims.

[00:22:41] Speaker 03:
And those are the claims that they have now.

[00:22:45] Speaker 03:
And finally, the notice of allowance by the examiner, he underlines, closes off the compartment.

[00:22:52] Speaker 03:
And I'm looking at appendix 756.

[00:22:54] Speaker 03:
And so there's no secret here that these claims were narrowed during prosecution.

[00:23:01] Speaker 03:
as was required in order to overcome the obviousness projections.

[00:23:07] Speaker 03:
Now, curiously, in the briefing, and I would point especially to the reply, I believe pages 7 to 11, Miller said, no, we didn't narrow the claims.

[00:23:19] Speaker 03:
They're not even saying we didn't narrow the claims in this specific way.

[00:23:23] Speaker 03:
They're saying we didn't narrow the claims at all.

[00:23:26] Speaker 03:
So that's not what they told the examiner, and that's not what an objective reading of the specification shows.

[00:23:31] Speaker 03:
So I would say, you know, they're not even really hiding the ball.

[00:23:35] Speaker 03:
They're saying, you know, I don't care what we said during the examination, but I think we still have that broad claim to a record with movable controls.

[00:23:45] Speaker 03:
And it's just, it is belied by the record.

[00:23:49] Speaker 03:
I think that

[00:23:54] Speaker 03:
One point I did want to make, and I think Judge Chet, I actually wrote cart before the horse down in my notes here because I think you keyed in exactly on what Miller's doing here.

[00:24:03] Speaker 03:
They're saying, how can I make these claims read so that they cover NRC's embodiment?

[00:24:08] Speaker 03:
That's not how we do claim construction, but I think that

[00:24:11] Speaker 03:
Again, they're not hiding the ball in what they're doing there.

[00:24:13] Speaker 03:
They're saying, well, the control panel must be whatever performs these three functions.

[00:24:19] Speaker 03:
And we came up with an analogy that maybe it's helpful, maybe it's not.

[00:24:22] Speaker 03:
But if you think of a car that claims the steering wheel that steers the car and has controls for the radio, the steering wheel has those two things.

[00:24:30] Speaker 03:
Under a normal approach, you would say, okay, what's the steering wheel?

[00:24:34] Speaker 03:
It's this wheel.

[00:24:35] Speaker 03:
Does it have radio controls?

[00:24:36] Speaker 03:
Yes or no.

[00:24:36] Speaker 03:
That's how we determine whether it falls within the scope of the claim.

[00:24:40] Speaker 03:
Under this sort of contorted construction for Miller, you wouldn't do that.

[00:24:44] Speaker 03:
You'd look and say, okay, what steers the car?

[00:24:47] Speaker 03:
This wheel.

[00:24:48] Speaker 03:
Where are the radio controls?

[00:24:50] Speaker 03:
Maybe they're on the wheel.

[00:24:51] Speaker 03:
It's part of the claim.

[00:24:52] Speaker 03:
Maybe they're on the dashboard.

[00:24:54] Speaker 03:
And now Miller says, oh, well now the dashboard is part of the steering wheel because it performs one of the functions that the steering wheel does.

[00:25:00] Speaker 03:
So I think putting the cart before the horse is exactly the right phrase in terms of understanding Miller's approach and why they're doing what they're doing.

[00:25:14] Speaker 03:
We agree that the district court appropriately did not consider extrinsic evidence.

[00:25:20] Speaker 03:
I'm happy to talk about that if it would be helpful to your honors.

[00:25:25] Speaker 00:
I don't think you need to do that.

[00:25:27] Speaker 03:
I think that if there are not further questions, I will see you the rest of the time.

[00:25:32] Speaker 00:
OK.

[00:25:33] Speaker 00:
Thank you, Ms.

[00:25:34] Speaker 00:
Olson.

[00:25:34] Speaker 00:
Mr. Mazza, two minutes.

[00:25:35] Speaker 00:
Thank you.

[00:25:43] Speaker 01:
Thank you, Your Honor.

[00:25:45] Speaker 01:
With respect, we still think the plain meaning of the plain language is broad enough to encompass

[00:25:52] Speaker 01:
that the control panel can cover pictures 3A and 3.

[00:25:56] Speaker 01:
And there is nothing in the file history that suggests otherwise.

[00:26:00] Speaker 01:
At the interview, nothing was agreed to.

[00:26:02] Speaker 01:
And additional functional considerations were agreed to be discussed.

[00:26:08] Speaker 01:
But this is what the interview says at A748.

[00:26:11] Speaker 01:
The examiner suggested amending.

[00:26:14] Speaker 01:
based on structural aspects.

[00:26:17] Speaker 01:
It goes on to talk about a door.

[00:26:18] Speaker 01:
But we also talked about a willingness to add Claim 2 to Claim 1, didn't do it.

[00:26:24] Speaker 01:
We certainly didn't have a door language.

[00:26:26] Speaker 01:
And the language that we did add in the final amendment is generic and figure 3 and 3A.

[00:26:32] Speaker 01:
It simply says, it still says the control panel is lovable.

[00:26:36] Speaker 01:
But now it says the control panel in the second position provides an interior open department at both figures 3A and 3.

[00:26:44] Speaker 01:
And this by the cavity example is a poster child for why the district court should have considered Brown because the by the cavity example has a face.

[00:26:55] Speaker 01:
that the operator would have to go like this, he would lose all sight of the controls.

[00:27:01] Speaker 01:
You'd never use that.

[00:27:04] Speaker 01:
So that's why you have to tie these things to what a person with an ordinary skill would do.

[00:27:10] Speaker 01:
You would never do this.

[00:27:12] Speaker 01:
And the patent says, for example, claim 22, a strategic location providing an ergonomic position, that is not one of those things.

[00:27:21] Speaker 01:
Now, back to Justice Chen, when you talked about doors separate from the control panel, it said a shelf.

[00:27:27] Speaker 01:
It said the control panel includes a shelf, and then it said that doors separate from the control panel.

[00:27:31] Speaker 01:
That doesn't mean that doors separate from the rest of the control panel, because the only examples talk about door as the closure mechanism.

[00:27:40] Speaker 01:
So door separate from the control panel 1022 must mean door separate from the rest of the control panel, i.e.

[00:27:46] Speaker 01:
the shelf.

[00:27:47] Speaker 01:
Okay, I think we're out of time.

[00:27:49] Speaker 00:
Thank you.

[00:27:49] Speaker 00:
May both counsel cases submitted.