[00:00:00] Speaker 00:
We have four argued cases this morning.

[00:00:02] Speaker 00:
The first is number 22, 1996.

[00:00:04] Speaker 00:
Shane versus Newell Brands, Inc.

[00:00:09] Speaker 00:
Mr. Schroeder.

[00:00:11] Speaker 02:
Good morning, Your Honors, and may it please the court.

[00:00:14] Speaker 02:
This appeal involves the correct interpretation of a simple phrase.

[00:00:19] Speaker 02:
What does the patent claims mean when they say to position the infant such that the infant's feet are substantially below the infant's head?

[00:00:27] Speaker 02:
These are simple words with a well-understood meaning.

[00:00:31] Speaker 02:
And I think the crux of the dispute here appears to be whether the infant's feet must be substantially below the height of the head, defined by the horizontal plane running through the head,

[00:00:42] Speaker 02:
or whether they must also be within the same vertical plane as the head.

[00:00:48] Speaker 02:
Under the proper construction of this term, there can be no factual dispute that Greg O. Souther falls within the scope of the claims.

[00:00:55] Speaker 02:
I'd like to first address and primarily focus on the claim construction issues before turning to the summary judgment issue.

[00:01:02] Speaker 03:
So perhaps a different way to describe the choice is whether you're comparing

[00:01:10] Speaker 03:
plane where the head is, on one side the same, plane versus feet.

[00:01:15] Speaker 03:
And let's think of the feet as a single point, I think.

[00:01:18] Speaker 03:
Or whether below refers to essentially a linear relationship where the line is essentially vertical.

[00:01:29] Speaker 03:
Why wouldn't the second one

[00:01:32] Speaker 03:
Both, I think, are perfectly, in general, available meanings of below.

[00:01:38] Speaker 03:
You know, if you're in a hospital bed and they say, keep your feet, keep your head above the feet, you're not talking about a linear relationship between head and feet, just about levels for flow of water, basically.

[00:01:55] Speaker 03:
But this one seems to be about a linear relationship, and therefore,

[00:02:02] Speaker 03:
And I take it that the district court's claim construction was essentially that.

[00:02:09] Speaker 02:
I think that is the way to set up a dichotomy between the two positions here.

[00:02:14] Speaker 02:
But I disagree that the claims were intended to cover the linear relationship in the vertical plane.

[00:02:20] Speaker 02:
And if, if I may, your honor, we could start with, um, the claims themselves, they use the term below as opposed to underneath, which would be more precise if you were seeking to claim a more vertical linear relationship.

[00:02:34] Speaker 02:
Also, the claims use the word vertical to modify, uh, the motion that's imparted, but they do not in at least the independent claims use the word vertical to describe the position.

[00:02:46] Speaker 00:
But doesn't that flow to a large extent from the prosecution history where the board distinguished this piece of prior art because of basically a lack of verticality?

[00:03:01] Speaker 02:
I think that's right, Your Honor, although that deals with below the horizontal plane of the head.

[00:03:06] Speaker 02:
So when we look to the prosecution history, there was before the patent office, the closest prior art was this reference boomer.

[00:03:16] Speaker 02:
And it was consistent with the prior art discussed in the patent itself that would have an incline of at most 45 degrees.

[00:03:25] Speaker 02:
and then you have a right angle.

[00:03:26] Speaker 02:
So in that type of orientation, the infant's feet are near the level of the infant's head.

[00:03:32] Speaker 02:
It would have been quite easy if the Patent Office viewed this limitation as requiring a vertical relationship, meaning that the feet had to be directly underneath the head, under no interpretation.

[00:03:46] Speaker 02:
If that was how the Patent Office viewed these claims, there is no way Bloomer would have even been selected by the examiner.

[00:03:52] Speaker 02:
as falling within the scope of the claims because it is on the same level.

[00:03:58] Speaker 00:
But yeah, Bloomer was distinguished on the ground that it was really horizontal and what the board is saying is to anticipate or render obvious it would have to be more vertical, right?

[00:04:12] Speaker 02:
It would have to be not so close to the horizontal level of the head.

[00:04:17] Speaker 02:
So if we look at the actual language in the board's decision there,

[00:04:21] Speaker 02:
It refers to, and this is on appendix 308 to 309.

[00:04:28] Speaker 02:
It distinguishes the claims from Bloomer because Bloomer shows a position in which the infant's feet are very close to the horizontal plane of the infant's head.

[00:04:39] Speaker 02:
If we were talking about difference in the vertical plane, it wouldn't matter how close it would be to that horizontal plane.

[00:04:47] Speaker 02:
It could still be directly underneath.

[00:04:49] Speaker 02:
Say if you were to contort yourself in a way that your chin would be resting on your head, that would still be below on the vertical axis.

[00:04:59] Speaker 02:
But we're talking about here on the horizontal plane is what they're looking at.

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And so that's why I think the prosecution history informs the claim construction here.

[00:05:08] Speaker 02:
that what the Patent Office was looking at is how far below the horizontal plane defined by the head are the feet.

[00:05:15] Speaker 03:
So putting aside the prosecution history piece and just thinking about looking at the patent, so I guess things that seem to me to weigh in favor of the linear view of it are the head is essentially a point.

[00:05:33] Speaker 03:
If you think of the feet as two points, that's essentially one.

[00:05:37] Speaker 03:
And they're actually connected to the first point, and then we have the head.

[00:05:43] Speaker 03:
And then you look at the pictures, which are about carrying a baby against the chest.

[00:05:50] Speaker 03:
and either right against the real chest or the little device that the baby is shown on something that mimics the chest.

[00:06:00] Speaker 03:
Why doesn't that all point to the better meaning of this language being the linear one?

[00:06:06] Speaker 03:
And so below means really pretty close to a vertical line.

[00:06:13] Speaker 02:
So I think, Your Honor, we need to first look at the words used in the claims.

[00:06:20] Speaker 02:
just the position which the infant's feet are substantially below the infant's head.

[00:06:24] Speaker 02:
I think that connotes just a delta in the y-axis, if you will, and not necessarily a correlation in the x-axis.

[00:06:34] Speaker 02:
It does not have to be directly underneath.

[00:06:36] Speaker 02:
The claims do not recite underneath.

[00:06:38] Speaker 02:
And in fact, when we look in the specification itself, there's an example where they use the term under to refer to placing a heating element underneath the surface.

[00:06:47] Speaker 02:
And that is more of a direct correlation in that X axis as opposed to below, which simply requires below the horizontal plane of the head.

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And so I think that's how we get there.

[00:07:04] Speaker 02:
When you look even at the party's claim construction briefing as well, Graco had initially argued that substantially below was indefinite because it didn't specify how far below, meaning how far below in the y-axis it must be below the head.

[00:07:22] Speaker 02:
And then they argued that substantially below requires that the feet be below the head, quote, by a considerable amount or by quite a lot.

[00:07:31] Speaker 02:
That, again, is only referring to the delta in the x-axis or in the vertical axis and the y-axis, not any sort of how far away from my head in the x-axis must the feet be to also meet that construction.

[00:07:45] Speaker 00:
So if you look at page 28 of your brief,

[00:07:50] Speaker 00:
And I'm just wondering how to make the measurements here.

[00:07:52] Speaker 00:
And if you look at that left-hand figure there, where it says 25 degrees and 50 degrees, well, shouldn't the line that you're measuring be from the feet to the head rather than the relationship of the torso to verticality?

[00:08:15] Speaker 00:
And if my calculation is correct, that would be

[00:08:20] Speaker 00:
25 degrees.

[00:08:25] Speaker 02:
So off the vertical.

[00:08:28] Speaker 02:
You're right, Your Honor, in the sense that the position that's important is looking at the infant's head with respect to the infant's feet.

[00:08:36] Speaker 00:
So are you agreeing that the measurement, you draw a line there from the head to the feet to determine whether it's sufficiently vertical?

[00:08:46] Speaker 02:
I think our gray brief on page 14 has that same image that you see on the right, but annotated.

[00:08:53] Speaker 02:
And I think this helps solidify or illustrate the position and the dispute.

[00:09:01] Speaker 00:
But I'm not understanding whether you're agreeing with me or disagreeing with me.

[00:09:04] Speaker 00:
Isn't the correct measurement to measure the angle from the feet to the head and to determine how near that is to the vertical?

[00:09:12] Speaker 02:
That would be one way of measuring the angle.

[00:09:15] Speaker 02:
Yes, but I disagree that that's what the claims require.

[00:09:18] Speaker 02:
The claim requires the infant's feet to be substantially below the infant's head.

[00:09:23] Speaker 02:
So those are two points in space, and you simply compare their relative location in space without reference to an angle.

[00:09:30] Speaker 02:
And that's why the annotated figure on Graybrief 14 shows the plane in which the infant's head is in and the plane in which the infant's feet is in.

[00:09:40] Speaker 03:
What about the other picture on 28 of your blue brief, the left-hand picture with the actual angles shown?

[00:09:49] Speaker 03:
I think, at least my understanding of the questions that Dyke was asking is, so here you have two lines where you're measuring angles.

[00:09:59] Speaker 03:
The one on the left is

[00:10:04] Speaker 03:
the holding device off to the left to the feet, and the other is the bottom holding device, let's say, to the head.

[00:10:10] Speaker 03:
But there's another line to be drawn essentially between the feet and the head, which is neither of these two lines.

[00:10:20] Speaker 02:
Yes, that's correct.

[00:10:21] Speaker 02:
And if you were to draw a line from the feet to the head, it would be a downward sloping line, right?

[00:10:27] Speaker 02:
It would be, and this goes to when we talk about how you would apply actually the district court's construction, a more mainly vertical

[00:10:34] Speaker 02:
It would be more mainly vertical if you were to draw a line, say, from the infant's head down to the... No, I want you to look at the other picture.

[00:10:42] Speaker 02:
Yes, this one on 28.

[00:10:43] Speaker 03:
Yeah, but not the one with the baby in it.

[00:10:47] Speaker 03:
Just the one with the... Yes, that one.

[00:10:50] Speaker 03:
So over to the left, very close to the Y-axis, is right just above 25 degrees.

[00:10:56] Speaker 03:
Let's call that the feet.

[00:10:57] Speaker 03:
Yes.

[00:10:58] Speaker 03:
And let's call over in the northeast corner at the top of the blue line, the head.

[00:11:03] Speaker 03:
Now draw a line between those two things.

[00:11:08] Speaker 03:
That's going to be less than 50 degrees from horizontal, more than 40 degrees from vertical.

[00:11:18] Speaker 02:
So that angle may be, but in that angle, we still would have the point of the feet being substantially below the point of the head, which is what the plain language of the claims can hope.

[00:11:31] Speaker 03:
I thought there was an argument that

[00:11:33] Speaker 03:
Even if one looked at the linear stuff, 50 is closer to vertical than it is to horizontal.

[00:11:41] Speaker 03:
But that's only if you use this kind of back of the holding thing device.

[00:11:48] Speaker 03:
Whereas that would not be true if you do this undrawn line.

[00:11:55] Speaker 03:
It's going to be under 50.

[00:11:58] Speaker 02:
I see what you're asking, Your Honor.

[00:11:59] Speaker 02:
Yes, so that would be under the district court's mainly vertical orientation construction.

[00:12:03] Speaker 02:
And by under, I mean less than.

[00:12:04] Speaker 02:
Yes, yes.

[00:12:05] Speaker 02:
So under the district court's mainly vertical.

[00:12:07] Speaker 00:
So it would be non-infringing under the district court's mainly vertical.

[00:12:11] Speaker 02:
No, I disagree with that as well, Your Honor.

[00:12:12] Speaker 00:
But if you do the measurement that way, the way that Judge Toronto and I have been talking about,

[00:12:19] Speaker 00:
that would be non-infringing under the district court's construction, right?

[00:12:24] Speaker 02:
I disagree with that, and neither side made that argument below that that's how this should have been measured.

[00:12:30] Speaker 02:
The issue was when we look in the patent, it describes the prior art that angles up to 45 degrees, whereas this... But we can come up with a slightly different claim construction.

[00:12:43] Speaker 00:
That's not forbidden, right?

[00:12:45] Speaker 02:
That's correct.

[00:12:45] Speaker 02:
Claim construction is reviewed de novo.

[00:12:48] Speaker 02:
And I don't know if we don't have the measurement, because there's also the pillow that's at play here, and also where the infant's feet are positioned in order to determine the angle specifically, what that is.

[00:13:00] Speaker 02:
This was not under the district court's claim construction of mainly vertical orientation.

[00:13:06] Speaker 02:
Mr. Shane's experts said that that, as an engineering perspective, the way you would address that is mainly vertical.

[00:13:13] Speaker 02:
It would be more vertical than horizontal.

[00:13:15] Speaker 00:
The virtue of the measurement that I've been suggesting to you is that it is measuring directly how much the feet are below the head.

[00:13:28] Speaker 02:
As a function of an angle, yes, but as a function of two points in space, I don't think that that's what the claim language, when it refers to whether one is substantially below the other, I think that refers to distance as opposed to an angle.

[00:13:45] Speaker 00:
Unless there are other questions, I'll reserve the rest of your time.

[00:13:50] Speaker 00:
We'll give you two minutes.

[00:13:56] Speaker 00:
Mr. Leonard?

[00:14:15] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:14:18] Speaker 01:
I want to start with the line of questioning that Your Honors were asking my friends on the other side regarding the linear relationship of the infant.

[00:14:26] Speaker 01:
I think you picked up on a critical point of the patents, and I think that is the correct way to think about it.

[00:14:32] Speaker 01:
If you look to the specification, to the claims as well, the positioning of the infant is what's critical to Mr. Shane's invention.

[00:14:40] Speaker 01:
He describes the purpose of the invention

[00:14:43] Speaker 01:
attempting to soothe an infant, and that often the only way to soothe an infant is to hold the infant in a vertical orientation.

[00:14:49] Speaker 01:
And that this vertical orientation and vertical motion is often the only way to soothe an infant.

[00:14:54] Speaker 01:
So he's already set up kind of the purpose of his invention.

[00:14:57] Speaker 01:
That orientation is critical to his invention.

[00:15:01] Speaker 01:
He goes on to describe the specification.

[00:15:03] Speaker 00:
But the knees can be bent, right?

[00:15:06] Speaker 00:
The figures two and three in the patent showed bended knees.

[00:15:12] Speaker 01:
That's correct.

[00:15:13] Speaker 01:
And I think that's consistent with the district court's claim construction, construing the terms to be a position with the infant in a mainly vertical orientation.

[00:15:21] Speaker 01:
It doesn't require strict verticality.

[00:15:23] Speaker 01:
There's going to be some adjustment of the infant.

[00:15:27] Speaker 01:
Excuse me, Your Honor.

[00:15:28] Speaker 01:
So the legs can be slightly bent, but they can't be raised toward the head.

[00:15:34] Speaker 01:
Because as you noted, we now are no longer talking about an infant's feet substantially below its head or the infant in a mainly vertical orientation.

[00:15:41] Speaker 01:
And because that orientation is so critical, according to Mr. Shane and the specifications associated with the infant, that the accused products which position the infant in a seated reclined position with its legs raised towards its head is fundamentally different advice than what Mr. Shane was describing.

[00:16:01] Speaker 01:
So I think the specification, as you mentioned the figures, figure one, which is showing the prior art that the patent was intended to mimic.

[00:16:09] Speaker 01:
So a caregiver holding the infant in a vertical orientation.

[00:16:12] Speaker 01:
And then figures two and three, which are embodiments of the invention, replicating that same orientation.

[00:16:17] Speaker 01:
So the infant's in a upright, mainly vertical orientation.

[00:16:22] Speaker 01:
Again, demonstrating how that position is critical to soothing the infant according to the patent.

[00:16:28] Speaker 01:
Now, in order for Mr. Shane's infringement positions to work, he took a broad-end interpretation of the district court's claim language, essentially a construction of the construction.

[00:16:40] Speaker 01:
He took the position that in order for an infant to be in a mainly vertical orientation, all that was required was that the infant's back was greater than 45 degrees.

[00:16:51] Speaker 01:
And although he criticizes the district court's claim construction for allegedly injecting an infant orientation to the claims as opposed to defining the claims based on the infant's feet with respect to its head, for purposes of infringement, he abandons that argument, focuses only on the infant's back, says you ignore the infant's feet, the infant's head, and that's all that matters.

[00:17:15] Speaker 01:
The issue with this argument is

[00:17:18] Speaker 01:
We presented a hypothetical in our brief.

[00:17:21] Speaker 01:
If you have an infant that is in a seated reclined position, similar to the Bloomer reference that was at issue in the prosecution history, where the infant's back is at 46 degrees, the legs are elevated at 44 degrees, under Shane's infringement argument, that would be an infringing product under the patent.

[00:17:40] Speaker 01:
And that's just an unreasonable result given

[00:17:42] Speaker 01:
the claim language, given the specification, and how Mr. Shane defined his invention.

[00:17:55] Speaker 01:
So again, we believe that the linear relationship of the infant's head with respect to its feet is the proper interpretation of the claims.

[00:18:04] Speaker 01:
And that is what Mr. Shane was trying to describe.

[00:18:07] Speaker 01:
when he said that the position of the events feed had to be substantially below its head.

[00:18:11] Speaker 01:
I think it's clear from the language we agree that this is a simple case about the meaning and application of simple words.

[00:18:18] Speaker 01:
I think it's clear from the claims, particularly when you read them in light of the specification, the orientation that Mr. Shane was attempting to describe.

[00:18:30] Speaker 01:
In addition to

[00:18:31] Speaker 01:
the claim language and the specifications supporting the district court's claim construction.

[00:18:36] Speaker 03:
Can I just ask you, I think Mr. Schroeder referred to what you argued by way of indefiniteness at the initial claim construction.

[00:18:49] Speaker 03:
What did you argue about indefiniteness?

[00:18:54] Speaker 03:
And I took his point to be that you made an argument about indefiniteness that

[00:19:01] Speaker 03:
either assumed or asserted that there was, that the right question to ask was, you know, the altitude difference between the head and the feet.

[00:19:12] Speaker 03:
That's the planar view.

[00:19:14] Speaker 03:
Right.

[00:19:15] Speaker 03:
And that, you know, you just don't know how much altitude difference there has to be.

[00:19:21] Speaker 03:
Is that what you argued or was that only on the assumption that the altitude difference was the right framework but not an endorsement of that assumption?

[00:19:30] Speaker 01:
That's correct.

[00:19:31] Speaker 01:
I think that the purpose of our indefiniteness argument was based on Shane's position that the claims required no construction.

[00:19:38] Speaker 01:
We thought construction was necessary because the claims were ambiguous.

[00:19:42] Speaker 01:
So in the event that Shane was arguing that no construction was needed, then in our position, the claims were indefinite because we could not tell what it meant for the infant's feet to be substantially below its head.

[00:19:57] Speaker 01:
But in reality, our primary position was that this specification is clear on what that position is, that it's this linear relationship between the offense head and feet consistent with the specification in a mainly vertical orientation.

[00:20:15] Speaker 01:
In addition to the claims and specifications supporting the district court's claim construction, during the claim construction process, Mr. Shane stated in his opening claim construction brief

[00:20:27] Speaker 01:
that one ordinary skill in the art would recognize that substantially vertical means a position in which the infant's feet are substantially below its head.

[00:20:35] Speaker 01:
And it's that appendix 528.

[00:20:38] Speaker 01:
So effectively, in his opening claim construction brief, trial counsel for Mr. Shane essentially agreed with the district court's claim construction.

[00:20:45] Speaker 01:
He said the claim language at issue meant substantially vertical.

[00:20:50] Speaker 01:
And that, in addition to the

[00:20:52] Speaker 01:
intrinsic record the court relied on.

[00:20:53] Speaker 01:
And I think that all supports the mainly vertical orientation that the district court held.

[00:21:00] Speaker 01:
Now, appellate counsel has tried to walk that back on appeal.

[00:21:06] Speaker 01:
But I think it's critical that Mr. Shane made this admission or this affirmative statement in his opening claim construction brief.

[00:21:12] Speaker 01:
We pointed this out in our responsive brief.

[00:21:15] Speaker 01:
And at no point did he ever try to clarify or explain what he was really trying to say.

[00:21:20] Speaker 01:
He didn't say anything in his reply brief.

[00:21:22] Speaker 01:
He didn't say anything at the Markman hearing.

[00:21:25] Speaker 01:
And he didn't say anything during summary judgment briefing.

[00:21:28] Speaker 01:
So he seemed to stand on that affirmative statement that the claim language meant that the infant was in a substantially vertical position.

[00:21:46] Speaker 01:
Now, one of Mr. Shane's criticisms of the district court's claim construction is that it injected an infant orientation into the claims.

[00:21:56] Speaker 01:
But the claims clearly provide that it's the infant orientation that's important.

[00:22:01] Speaker 01:
Shane repeatedly noted this during the prosecution when he was distinguishing Bloomer, that it's the position of the infant that is critical, and that Bloomer, which is a reclined device that has the infant in a reclined seat position with its

[00:22:13] Speaker 01:
legs elevated towards head was not his invention.

[00:22:17] Speaker 01:
And further, both parties' experts agree that the infant orientation is what's critical.

[00:22:23] Speaker 01:
And that can be found at appendix 2868 through 2870, at paragraphs 48 through 52, and appendix 3185 through 3186, pages 58 and 59.

[00:22:39] Speaker 01:
Mr. Shane's primary argument that the district court's claim construction was wrong, it doesn't work because when the district court defined the position of the infant as a position with the infant in a mandy vertical orientation, he was necessarily defining the position of the head with respect to the feet.

[00:22:55] Speaker 01:
So in defining the position of the infant, he was defining the points of the feet and the head.

[00:23:03] Speaker 01:
Also, the specification makes no specific

[00:23:05] Speaker 01:
reference to the positioning of the feet.

[00:23:08] Speaker 01:
No reference to this position of the head.

[00:23:11] Speaker 01:
There's no position of them relative to each other.

[00:23:13] Speaker 01:
What it does reference is the verticality of the infant or that the embodiments position the infant in a vertical orientation.

[00:23:23] Speaker 01:
In fact, the only reference to feet in the specification has to do with a feature that can be added to the device.

[00:23:29] Speaker 01:
Because when an infant is hanging in an upright position for so long, it can become fatigued and it needs support for its legs, which are hanging.

[00:23:37] Speaker 03:
OK, can I just ask you about the PTAB decision, which I guess was led to the issuance of the patent.

[00:23:46] Speaker 03:
It was right on the application.

[00:23:47] Speaker 03:
I'm looking at appendix H308.

[00:23:53] Speaker 03:
the board says, one of ordinary skill at the time of invention, would understand the phrase, the infant's feet are substantially below its head to mean that the infant's feet are considerably below its head rather than near the height of the infant's head.

[00:24:11] Speaker 03:
I took the other side's position to be that that essentially adopted the altitude or planar notion of below

[00:24:22] Speaker 03:
rather than the linear view.

[00:24:27] Speaker 03:
Why isn't that right?

[00:24:28] Speaker 01:
Yeah, I would disagree with that.

[00:24:29] Speaker 01:
I mean, I think inherent in the clay language, a position with the infant's feet substantially below its head is the alternative to that, that the feet are not near the height of its head.

[00:24:40] Speaker 03:
And then, you know, further language that actually uses the phrase horizontal plane of the head.

[00:24:46] Speaker 03:
I take those two things to be the same.

[00:24:48] Speaker 03:
Is that a problem for your position?

[00:24:51] Speaker 01:
I don't think so.

[00:24:51] Speaker 01:
I think what the PTAB was saying is that, and this is in reference to the Bloomer prior art, which again is very similar to the Acute's product, what it's saying is it's not that type of device.

[00:25:04] Speaker 01:
It's not the type of device where the legs are elevated towards its head.

[00:25:07] Speaker 01:
The feet need to be substantially below, whereas the PTAB said considerably below.

[00:25:12] Speaker 01:
I don't think it was taking the position that there was a horizontal plane aspect to it.

[00:25:20] Speaker 01:
Rather, that the infant's feet essentially had substantially below, meaning not near the plane, so below the plane of the infant's head.

[00:25:31] Speaker 01:
And I think, again, if you look to the specification, that makes clear what the position of the infant was, what the intention of the patent was.

[00:25:43] Speaker 01:
Further, I'll just add that the PTAB construction was based on a broadest reasonable interpretation standard.

[00:25:49] Speaker 01:
which, of course, the district court does not apply, and it's not required to adopt the PTEP's decision because of the differing standards.

[00:26:13] Speaker 01:
The specification also never discusses a orientation

[00:26:16] Speaker 01:
where an infant is in a reclined seated position.

[00:26:19] Speaker 01:
It's very clear of the orientation it's describing.

[00:26:22] Speaker 01:
And it's this vertical or mainly vertical orientation that's critical, according to the patent, to suiting an infant.

[00:26:29] Speaker 01:
It also never discusses a position in which the infant's feet are elevated.

[00:26:33] Speaker 01:
It's, again, always directed to this vertical orientation that is critical, given Mr. Shane's description of what he was trying to accomplish with his invention.

[00:26:49] Speaker 01:
With respect to Mr. Shane's infringement position, he again, as I mentioned before, takes the position.

[00:26:55] Speaker 01:
He interprets the district court's claim construction further than the district court did, arguing that all that is required is the infant's back must be 45 degrees.

[00:27:06] Speaker 01:
The issue with that is there's no support for that claim, for that claim, that interpretation of the court's construction.

[00:27:12] Speaker 01:
It's nowhere in the claim language.

[00:27:14] Speaker 01:
There's nothing in the specification that supports that.

[00:27:17] Speaker 01:
All you need to look at is the infant's back or that greater than 45 is all that's required of the claims.

[00:27:23] Speaker 01:
In fact, the intruder record makes no mention of specific angles, no mention that you only consider the infant's back and you ignore the infant's feet.

[00:27:31] Speaker 01:
In fact, the claims clearly show that it's the orientation of the entire infant.

[00:27:34] Speaker 01:
So you have to consider the feet and the head.

[00:27:38] Speaker 01:
And I think it's clear why he took that position, because under the properly construed claims, the accused products simply do not infringe.

[00:27:46] Speaker 01:
They're fundamentally different devices than what is claimed.

[00:27:51] Speaker 01:
So in taking that position, he's trying to impermissibly broaden the claim language beyond what Mr. Shane actually claims.

[00:28:01] Speaker 01:
Further, in presenting his infringement arguments or his

[00:28:07] Speaker 01:
arguments against non-infringement, Mr. Shane never actually applied the properly construed claims and compared them to the accused products.

[00:28:16] Speaker 01:
Because what he did was he took his further interpretation and used that throughout.

[00:28:20] Speaker 01:
But he never actually compared the properly construed claims to the accused products.

[00:28:27] Speaker 01:
The only thing he, Mr. Shane, cites to is a statement by his expert

[00:28:32] Speaker 01:
which essentially adopts this greater than 45 position.

[00:28:38] Speaker 01:
But that statement is entirely conclusory and unsupported.

[00:28:41] Speaker 01:
There's no support that he cites to in the specification.

[00:28:47] Speaker 01:
no analysis to say why this is the correct interpretation.

[00:28:51] Speaker 01:
And in his report, he actually provides misleading figures.

[00:28:54] Speaker 01:
And this is at Appendix 2213 and 2214, in which the images we're looking at on, I believe it was page 28 of Mr. Shane's opening brief

[00:29:08] Speaker 01:
Showing the orientation the 50 degree angle in the 25 degree angle what their expert does is actually crop that picture to remove the infants the seat bottom angle essentially presenting a misleading Misleading demonstration of what the accused products and how it oriented the infant okay?

[00:29:26] Speaker 00:
I think mr.. Leonard.

[00:29:27] Speaker 00:
We're out of time.

[00:29:28] Speaker 00:
Thank you.

[00:29:28] Speaker 00:
Thank you your honors

[00:29:38] Speaker 00:
Mr. Schroeder.

[00:29:39] Speaker 00:
Is it Schroeder or Schroeder?

[00:29:40] Speaker 00:
Schroeder, Your Honor.

[00:29:42] Speaker 00:
Schroeder.

[00:29:42] Speaker 00:
Two minutes.

[00:29:44] Speaker 02:
I have a few points to make in rebuttal.

[00:29:47] Speaker 02:
First, under Graco's interpretation, as they argued, opposing summary judgment and in their red brief on page 23, they viewed the district court's mainly vertical orientation to require the infant to be confined to a single plane.

[00:30:03] Speaker 02:
meaning the infant cannot be seated.

[00:30:06] Speaker 02:
And you can see this.

[00:30:07] Speaker 02:
Like I said, Redbrief 23 and their expert made these statements on appendix 2373 and 2866.

[00:30:14] Speaker 02:
And so taking that to its extreme, that means if you're seated or if your legs are elevated, you cannot be in any orientation, according to Graco, meaning they would contend even your honors seated at the bench, your feet are not substantially below your head.

[00:30:29] Speaker 02:
That cannot square with the plain language of the claims.

[00:30:33] Speaker 02:
And then turning back to the point where I think we started with before about whether this is the linear theory or the linear interpretation of this claim element as opposed to the planer, the board's opinion, which is part of the prosecution history of these patents, resolves any dispute by using the language near the height of the head and referring to the horizontal plane of the head.

[00:30:56] Speaker 02:
That's the planer view as opposed to the linear theory.

[00:30:59] Speaker 02:
And finally, with respect to the purported concession, Mr. Shane did not concede in the district court's construction.

[00:31:05] Speaker 02:
If you look at the statement on Appendix 528, he is advocating for the position of claim interpretation adopted by the board.

[00:31:15] Speaker 02:
So if you complete the sentence, the part that was cropped, he says, i.e., the infant's feet are considerably below its head rather than near the height of the infant's head, as found by the P-tab.

[00:31:26] Speaker 02:
That's advocating for the plainer view of the claims as opposed to the linear view of the claims.

[00:31:31] Speaker 02:
Unless there's any other further questions, Your Honor.

[00:31:36] Speaker 00:
Thank you, Mr. Schroeder.

[00:31:37] Speaker 00:
Thank both counsels.