[00:00:00] Speaker 01:
The case this morning is AccuFlaw versus Eventile and Four Pack, 2023, 1887.

[00:00:09] Speaker 01:
Ms.

[00:00:10] Speaker 01:
McComas.

[00:00:11] Speaker 00:
Good morning.

[00:00:12] Speaker 00:
May it please the court?

[00:00:14] Speaker 00:
I guess from statutory construction to claim construction.

[00:00:19] Speaker 00:
Today, this appeal centers on two claim construction issues, majority of the area and tile edge.

[00:00:26] Speaker 00:
And I'm going to go straight to majority of the area unless the court

[00:00:30] Speaker 00:
wishes to go a different direction.

[00:00:34] Speaker 00:
And I hate to read the whole thing because I know you're well prepared, but it's helpful to put the term we're talking about in context.

[00:00:40] Speaker 00:
It's the combination of the first notch and the second notch providing a majority of the area of tile to mortar to subfloor

[00:00:50] Speaker 00:
for the leveling device within the bounds of the base.

[00:00:54] Speaker 00:
The district court concluded that that means the notches in the base collectively span an area that is larger than the solid portion of the base.

[00:01:05] Speaker 00:
And it helped me to look at that in a picture format.

[00:01:08] Speaker 00:
And if you look in the reply brief at page four, there's an example of that that I think makes it easy to talk from.

[00:01:18] Speaker 00:
So basically what the district court concluded is that the blue area has to be larger than the black area.

[00:01:31] Speaker 00:
And she reached that determination in barely one page of analysis that was all focused on the prosecution history.

[00:01:38] Speaker 00:
That's wrong.

[00:01:40] Speaker 00:
We know you start your claim construction

[00:01:42] Speaker 00:
from the patent claims and the specification.

[00:01:45] Speaker 00:
And that's where we start.

[00:01:47] Speaker 00:
And when you start there.

[00:01:48] Speaker 03:
To be fair, in the prosecution history, I think it's correct that the examiner suggested an amendment that would capture what the district court says is the correct claim construction here.

[00:02:02] Speaker 03:
Isn't that what was suggested to you from the examiner?

[00:02:05] Speaker 00:
That's fair.

[00:02:06] Speaker 00:
The examiner suggested it.

[00:02:07] Speaker 00:
We didn't follow the suggestion.

[00:02:09] Speaker 00:
And that's why we're here today.

[00:02:11] Speaker 00:
But I don't want to lose sight of the specification, which the district court overlooked.

[00:02:16] Speaker 00:
There's nothing in the opinion that gets you to, I'm sorry, the claim language itself.

[00:02:21] Speaker 00:
There's nothing that gets you to this discussion in the context of our brief opinion below.

[00:02:28] Speaker 00:
And so it's real simple.

[00:02:30] Speaker 00:
The combination of the first and second notches, that's the blue area.

[00:02:35] Speaker 00:
provides the majority of the tile to mortar subfloor contact within the bounds of the base.

[00:02:39] Speaker 00:
That's the red outlined area.

[00:02:42] Speaker 00:
That's what it says.

[00:02:44] Speaker 00:
If AccuFloor had wanted to claim a device where the notches covered more than the base, they didn't need the words tile to mortar to subfloor contact.

[00:02:58] Speaker 00:
Those would be superfluous under that construction.

[00:03:01] Speaker 00:
So let's talk about the prosecution history.

[00:03:03] Speaker 00:
I know you're dying to get there, right?

[00:03:06] Speaker 05:
Yeah.

[00:03:07] Speaker 05:
I'm very interested in the Edge issue.

[00:03:10] Speaker 05:
So please save a good deal of time for the Edge issue, if you would.

[00:03:14] Speaker 05:
It seems to be more complex than the area issue.

[00:03:18] Speaker 05:
OK.

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

[00:03:21] Speaker 03:
Go ahead.

[00:03:21] Speaker 03:
And I'm satisfied on the prosecution history for majority of the area.

[00:03:24] Speaker 03:
So I'm fine if we turn to Edge.

[00:03:25] Speaker 00:
OK.

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

[00:03:27] Speaker 00:
Then we will turn to edge.

[00:03:28] Speaker 00:
And I agree, there was substantially more briefing on the issue of edge.

[00:03:33] Speaker 00:
Again, tile edge, the district court construed it to mean a line at which a surface of a tile terminates.

[00:03:42] Speaker 00:
That, too, was error.

[00:03:44] Speaker 00:
Edge simply means edge to a person of ordinary skill in the art.

[00:03:48] Speaker 00:
And the district court understood that when deciding corner.

[00:03:52] Speaker 00:
So the arguments were almost the same with respect to corner.

[00:03:55] Speaker 00:
There was dispute.

[00:03:56] Speaker 00:
Our opponents argued that it had to be just the very tip.

[00:04:01] Speaker 00:
And we argued the same thing, that because tile, and when you're in the tile industry, you're worried about breakage on the ends, that it has to be something more than just the very tip.

[00:04:14] Speaker 00:
And the judge found plain and ordinary meaning consistent with those arguments on corner.

[00:04:18] Speaker 00:
But then when she switched to edge, her only reason to not find the same thing with respect to edge

[00:04:26] Speaker 00:
was because of the prosecution history.

[00:04:30] Speaker 00:
But let's start again.

[00:04:31] Speaker 00:
Our decision has no analysis of the actual patent in the specification.

[00:04:37] Speaker 05:
Well, let's turn to figure 11A, which is a big part of your argument.

[00:04:42] Speaker 05:
Correct.

[00:04:44] Speaker 05:
Now, my problem with your alliance in figure 11a, just to cut to the chase, is that 11a was in the specification from before the time that you amended with respect to the edge issue.

[00:04:57] Speaker 05:
And you put the edge limitation into the claims.

[00:05:01] Speaker 05:
Now, that to me suggests that perhaps 11a has been, in effect, overridden by a reduction in the size of what you're claiming.

[00:05:14] Speaker 00:
So I'm glad you raised that, because that was also confusion by the district court, I think.

[00:05:18] Speaker 00:
The claim amendment that we're referencing, which is at appendix 1350 through 1353, didn't add edge.

[00:05:26] Speaker 00:
Edge was already there.

[00:05:27] Speaker 05:
Right.

[00:05:28] Speaker 05:
But what it said was, and importantly, and why figure 11A may not be applicable anymore, is that it says that up to the edge, there has to be a connection between the

[00:05:43] Speaker 05:
the tile and the mortar and the subfloor.

[00:05:47] Speaker 05:
So in the figure 11A, you point out in your brief, well, there's a section there in which the tile is not connected to the mortar and the subfloor, but

[00:06:05] Speaker 05:
after the amendment, at least arguably, that no longer is true as to what you're claiming.

[00:06:12] Speaker 05:
So that's my question to you is, why isn't that enough to discredit, if you will, the application of 11A to your argument about the scope of the new claim limitation that was added?

[00:06:30] Speaker 00:
Can I ask you to focus me in on the language you're looking at that you think is very?

[00:06:36] Speaker 00:
The language of the claim?

[00:06:37] Speaker 00:
No, the amendment that you're focused on.

[00:06:39] Speaker 05:
Yeah, the claim amendment.

[00:06:41] Speaker 05:
It shows up at 1350-353.

[00:06:44] Speaker 03:
Why don't you tell us where you think the edge language is at?

[00:06:49] Speaker 00:
The edge language existed at the beginning of this prosecution.

[00:06:54] Speaker 00:
The claim language that I think you're focused on, and that's why I'm trying to hone in and make sure I'm talking about the right place in the record.

[00:07:02] Speaker 00:
If you go to 1350 through 1353, which is what the district court relied on as a change, you can see that claim five, it moves Edge.

[00:07:18] Speaker 00:
Edge was already there.

[00:07:19] Speaker 00:
It just was moved.

[00:07:21] Speaker 00:
So am I focused on the wrong spot?

[00:07:24] Speaker 00:
No.

[00:07:26] Speaker 05:
Let me just get the language that I think we're focusing on here.

[00:07:31] Speaker 00:
You want to make sure I'm responding to the right amendment and the right question.

[00:07:35] Speaker 05:
Yeah.

[00:07:39] Speaker 05:
The language I'm focusing on is the language that says the notch will provide first tile edge to mortar to subsurface contact.

[00:07:49] Speaker 05:
Right?

[00:07:51] Speaker 05:
And that would suggest to me that

[00:07:54] Speaker 05:
that saying that the figure 11A demonstrates that there does not have to be that kind of contact between the very edge of the tile and some area farther in on the tile.

[00:08:18] Speaker 05:
To me, that's the problem.

[00:08:23] Speaker 00:
Give me just one second to get through those pages.

[00:08:28] Speaker 03:
If I'm following, I think Judge Bryson's reading from 1352.

[00:08:31] Speaker 03:
I think I'm with you.

[00:08:33] Speaker 03:
In claim five, the underlined language, the first notch providing first tile edge to mortar to subfloor contact.

[00:08:43] Speaker 03:
You see that?

[00:08:44] Speaker 03:
Yes.

[00:08:45] Speaker 03:
And my question relatedly is, are you saying that's not amendment language that was always in the claims?

[00:08:52] Speaker 00:
Ray, if you look down at what's being marked out, the tile edge to mortar to subfloor contact was there.

[00:09:01] Speaker 00:
They just adjusted where it was in the claim.

[00:09:04] Speaker 03:
The bottom line of page 5?

[00:09:06] Speaker 00:
Correct.

[00:09:07] Speaker 00:
A first tile, what they replaced.

[00:09:09] Speaker 00:
A first tile over the base to the front of the body.

[00:09:12] Speaker 00:
The first tile having a first surface.

[00:09:14] Speaker 00:
immediately below where you were reading.

[00:09:17] Speaker 00:
What was marked out?

[00:09:21] Speaker 03:
The bottom of 1352, Karen, to 1353.

[00:09:23] Speaker 00:
Correct.

[00:09:24] Speaker 03:
So if I understand, your first argument is we didn't change claim scope at all with this amendment?

[00:09:29] Speaker 00:
Right.

[00:09:29] Speaker 00:
This amendment, we didn't change claim scope with respect to Edge.

[00:09:35] Speaker 00:
That's not what's happening there.

[00:09:37] Speaker 00:
What's happening there is we're actually adding majority of an area.

[00:09:41] Speaker 00:
And we're adding a new claim that doesn't have Edge at all.

[00:09:52] Speaker 01:
Proceed.

[00:09:53] Speaker 00:
Yes, sir.

[00:09:56] Speaker 00:
I hope that answered your question on that issue.

[00:09:59] Speaker 00:
There were other things that the district court relied upon.

[00:10:02] Speaker 00:
I want to make sure I'm focusing on the ones that concern you the most.

[00:10:07] Speaker 00:
Certainly, the district court relied on three things in particular.

[00:10:11] Speaker 00:
She relied on the agenda that was before the examiner.

[00:10:14] Speaker 00:
And we talked about that.

[00:10:15] Speaker 03:
This video, first of all, I take it

[00:10:18] Speaker 03:
Your view is it's intrinsic evidence because the examiner looked at it during prosecution?

[00:10:24] Speaker 00:
Correct.

[00:10:24] Speaker 00:
It was part of the prosecution.

[00:10:26] Speaker 00:
It was part of the argument to the prosecution to explain how.

[00:10:29] Speaker 03:
I mean, I listened to the video.

[00:10:31] Speaker 03:
And it seems like whoever's talking is talking in a manner that is, I don't know, maybe equally consistent with Edge being

[00:10:42] Speaker 03:
the very edge line of the tile, or potentially including some additional area.

[00:10:48] Speaker 03:
I understand that to be the dispute between the parties, but I thought that video could be probably understood either way.

[00:10:56] Speaker 03:
What do I do with that?

[00:10:58] Speaker 00:
You go back to the preferred embodiments, and you look at Figure 11A, and you realize that what's disclosed in the patent itself is a tile that is, even though it discloses edge,

[00:11:09] Speaker 00:
reaches all the way up to that plastic and leaves a space where there's something between.

[00:11:15] Speaker 00:
There's some piece of the end that doesn't get mortar.

[00:11:18] Speaker 03:
Is it possible that the answer here turns on who is the person of ordinary skill in the art?

[00:11:23] Speaker 03:
And was there any discussion of that issue?

[00:11:26] Speaker 03:
Was that in dispute in the trial court?

[00:11:29] Speaker 00:
Yes, the district court didn't consider it.

[00:11:31] Speaker 00:
But we put in an expert declaration that explained

[00:11:34] Speaker 00:
why a line would not work, and that's in the 650 to 653 range?

[00:11:39] Speaker 03:
Your expert said that, but I didn't see your expert opine on who is the person who wears skill in the art here.

[00:11:45] Speaker 03:
Is it someone who lays tile?

[00:11:46] Speaker 03:
Is it someone who designs these plastic inserts?

[00:11:49] Speaker 03:
Is it somebody else?

[00:11:50] Speaker 03:
Was that at all an issue?

[00:11:51] Speaker 00:
I mean, to my knowledge, it just wasn't in dispute.

[00:11:54] Speaker 00:
I don't think anybody challenged that he was an expert.

[00:11:56] Speaker 00:
It just simply wasn't addressed because the judge was caught up on the prosecution history, perhaps the same thing you were looking at.

[00:12:04] Speaker 00:
I'm down to my rebuttal time.

[00:12:06] Speaker 00:
Any further questions?

[00:12:08] Speaker 01:
We will save you rebuttal time.

[00:12:10] Speaker 00:
Thank you.

[00:12:19] Speaker 01:
Mr. Manos.

[00:12:21] Speaker 02:
Good morning.

[00:12:21] Speaker 02:
May I please report?

[00:12:24] Speaker 02:
I want to just dive into EDGE and correct

[00:12:27] Speaker 02:
what happened here in the prosecution history.

[00:12:30] Speaker 02:
So EDGE was actually added first.

[00:12:33] Speaker 02:
What you were looking at when you were in the colloquy there was the March 2020 amendment to the 274 patent.

[00:12:40] Speaker 02:
In fact, that EDGE term had been added earlier to that patent.

[00:12:44] Speaker 02:
And also, it had been first entered into the other patent,

[00:12:51] Speaker 02:
the 857 patent.

[00:12:53] Speaker 02:
And that's actually what I think is the most telling thing of all.

[00:12:57] Speaker 05:
Can you tell us where to find those?

[00:12:58] Speaker 02:
Yes.

[00:12:59] Speaker 02:
Sure.

[00:13:03] Speaker 02:
So the original amendment that added EDGE is at appendix 700 to 718.

[00:13:10] Speaker 02:
And this also includes those exhibits to Hoffman that we talk in our briefing.

[00:13:15] Speaker 02:
And that's at 1045 to 59.

[00:13:17] Speaker 02:
And what's critical here is that in adding it,

[00:13:21] Speaker 02:
D- D-

[00:13:23] Speaker 02:
to say what the edge term was getting at, at 1052, the applicant pointed to Hoffman and pointed to that ledge on which the tile rests and says, edge of tile rests here, no tile to edge contact.

[00:13:37] Speaker 02:
And then on 1050, it points to figures three and five of the patent where the notch is flush with the edge and says, tile rests here, tile to edge to subfloor contact.

[00:13:48] Speaker 02:
So they are clearly delineating when they first added the amendment and added this term,

[00:13:52] Speaker 02:
But what the difference is, is getting flush to the edge, getting that edge right to the end of the tile terminating there.

[00:13:57] Speaker 02:
And that's what's on point, not Figure 11.

[00:14:01] Speaker 02:
Figure 11, as Judge Bryson said, existed before.

[00:14:04] Speaker 02:
They disclaimed from it.

[00:14:05] Speaker 02:
But furthermore, it's not even excluded in the first place.

[00:14:08] Speaker 02:
If you look at Appendix 122, which is

[00:14:12] Speaker 02:
columns four and five of the 274 pattern.

[00:14:15] Speaker 02:
It talks about that figure.

[00:14:16] Speaker 02:
It's not a preferred embodiment.

[00:14:18] Speaker 02:
Line 44 just says it's one embodiment.

[00:14:21] Speaker 02:
And then explaining the spacing pads, which is where this entire argument comes from, is like how, what distance are they set apart.

[00:14:28] Speaker 02:
It says that line 65 to 65

[00:14:31] Speaker 02:
Seven, spacing pads such as spacing pad 152 may be utilized to position the tiles a predetermined distance apart depending on their application.

[00:14:40] Speaker 02:
It doesn't say anything about where they actually essentially need to be.

[00:14:44] Speaker 02:
Do they need to be offset from the notch or anything like that?

[00:14:47] Speaker 02:
So figure 11 is not to scale.

[00:14:50] Speaker 03:
Do you contend that after the Edge Amendment, the figure 11A embodiment is not within the scope of the claims?

[00:14:57] Speaker 02:
I think that precise visual depiction maybe isn't.

[00:15:02] Speaker 02:
But the written description says that the spacing pads don't have a set distance.

[00:15:07] Speaker 02:
So in explaining what figure 11 is doing, the patent doesn't say that they need to be offset that amount.

[00:15:13] Speaker 02:
So the general idea of having these spacing pads isn't excluded at all.

[00:15:18] Speaker 05:
I'm not sure I understood your answer.

[00:15:21] Speaker 05:
Were you saying that 11A is no longer

[00:15:24] Speaker 05:
a viable embodiment of the amended claims?

[00:15:29] Speaker 02:
If you were to have the spacing pads offset such that you had a sort of ledge of the nod.

[00:15:33] Speaker 02:
Right.

[00:15:33] Speaker 05:
Well, that's what 11A looks like, at least to me, to my untutored eye.

[00:15:37] Speaker 05:
It looks like there's a ledge there between the groove where the grout goes and the first x number of millimeters of tile.

[00:15:51] Speaker 02:
Correct.

[00:15:51] Speaker 02:
So I totally understood.

[00:15:53] Speaker 02:
And I would just say three things in response to that.

[00:15:55] Speaker 02:
It's fine if it's excluded for precisely the reason you said how they made the amendment.

[00:16:00] Speaker 02:
It's just an embodiment, not a preferred embodiment, so it's not a problem to exclude it.

[00:16:04] Speaker 02:
And I guess my broader point when I'm getting to the written description is I'm just saying that visual depiction that's excluded doesn't sort of speak to the entirety of what figure 11 is trying to get at, because it has this statement about what the spacing pads are doing, and it's saying they can just be set at a distance.

[00:16:19] Speaker 02:
And so it's not saying it has to be that distance that's actually depicted in the figures.

[00:16:23] Speaker 02:
It's allowing for them to have variable distance, which would include coming right up to

[00:16:28] Speaker 02:
the end of the notch, which is precisely what we say, you know, to tile the edge to mortar subsoil contact is required.

[00:16:36] Speaker 03:
In the cross-sectional history, is there ever any reference to the edge being at the very edge of the tile?

[00:16:46] Speaker 03:
or to a line at the very edge of the tile.

[00:16:49] Speaker 03:
The district court says that the applicant made clear during the prosecution history that the edge is a line at the very edge of the tile.

[00:16:57] Speaker 03:
But I can't find anywhere in the prosecution history where the applicant or even the examiner said that.

[00:17:02] Speaker 02:
So I think the closest thing is not the video.

[00:17:05] Speaker 02:
It's this Hoffman figure three, figure four comparison, which is an appendix.

[00:17:10] Speaker 02:
1050 is the figures in the patents annotated by the applicant, and then 1052 is the Hoffman reference annotated by the applicant to show the distinction.

[00:17:19] Speaker 02:
But as to the video, I agree with you that the video

[00:17:23] Speaker 02:
is a bit of a jumble.

[00:17:25] Speaker 02:
But clearly, they are trying to distinguish those other prior art references by saying they don't get close enough.

[00:17:32] Speaker 02:
And I think the clearest depiction is 1086, where they're showing that their device's notch goes all the way to the edge.

[00:17:42] Speaker 02:
And if it's a region, which is what they say, I mean, there's no basis for the factifier to distinguish what reads on the prior art versus what reads on the claim.

[00:17:51] Speaker 02:
If you look at 1081, for example, where they're all lined up together, they're all in the same region.

[00:17:57] Speaker 03:
But that seems to me as a fact dispute.

[00:18:00] Speaker 03:
You could have regions of different space, different areas.

[00:18:06] Speaker 03:
They've not presented a con- The burden you have, and you persuaded the district court, is we need to agree that edge is limited to just a line at the very edge with no area at all.

[00:18:21] Speaker 03:
And again, I see nothing in the prosecution history where anybody advocated that position, where it was suggested by the examiner, where it was stated by the applicant.

[00:18:34] Speaker 03:
And all the things you pointed me to seem to me equally consistent with we're preserving at least a little bit of area.

[00:18:42] Speaker 03:
We can argue about how much.

[00:18:44] Speaker 03:
But we're not limiting ourselves to just the line at the very edge.

[00:18:49] Speaker 02:
Well, Judge Stark, two things.

[00:18:51] Speaker 02:
One, I think I would urge you to look at the comparison to Hoffman and the figures.

[00:18:55] Speaker 02:
I think that is the critical thing.

[00:18:56] Speaker 03:
Hoffman clearly leaves a lot of it.

[00:18:59] Speaker 03:
I mean, a lot is my word.

[00:19:01] Speaker 03:
There's clearly some area where the mortar is not going to reach, correct?

[00:19:08] Speaker 02:
correct but i think the important point is that the compare what do they point to to counter-distinguish confidence that ten fifty and that's figures three or five where they're pointing to the notch coming flush with a very termination point of the time saying that is what the southern uh... the subfloor contact and then their explanation

[00:19:25] Speaker 02:
at Appendix 714 where they explain this comparison.

[00:19:31] Speaker 02:
They say that they're illustrating their edge to floor subcontact through these two exhibits.

[00:19:34] Speaker 03:
But again, they never say, we're showing you that we are at the very edge and that Hoffman or Duda or anything else is not, correct?

[00:19:43] Speaker 03:
They never say that.

[00:19:44] Speaker 02:
They do not use those precise terms, but I think the supports are reading more than theirs, especially because we're not in the world in which edge has a plain and ordinary meaning.

[00:19:53] Speaker 02:
The other side has conceded that edge can mean a line.

[00:19:56] Speaker 02:
It could mean a region.

[00:19:57] Speaker 02:
So we're just looking at what is the intrinsic evidence best support.

[00:20:00] Speaker 05:
How about a slight tweak to the district court's construction, not simply edge being a line, but edge being an area

[00:20:12] Speaker 05:
that includes the line at which the tile terminates.

[00:20:17] Speaker 05:
In other words, a small area leading up to the line which is the end of the tile.

[00:20:24] Speaker 02:
Judge Bryson, I think that is a totally fine way of reading it.

[00:20:27] Speaker 02:
And I think that's what actually the district court's construction is effectively getting at.

[00:20:30] Speaker 02:
Because remember, a notch is defined as something that

[00:20:34] Speaker 02:
It starts from the other end of the base.

[00:20:37] Speaker 02:
And this is requiring tile edge contact.

[00:20:39] Speaker 02:
So the notch has to go all the way continuously to the termination point, just like you're saying.

[00:20:43] Speaker 02:
There's no space or gap allowed.

[00:20:45] Speaker 05:
If we were to adopt that construction, changing the district court's construction, albeit perhaps not in a dramatic way, but to some extent, wouldn't we have to send this back for the district court to determine whether, under our modified construction,

[00:21:02] Speaker 05:
the accused device still does not infringe?

[00:21:06] Speaker 05:
No, because as I said, I think- The stipulation wouldn't cover it anymore, right?

[00:21:12] Speaker 05:
Because the stipulation is only directed to her construction.

[00:21:16] Speaker 05:
So wouldn't we have to go back?

[00:21:17] Speaker 05:
Maybe you would win on a further stipulation, or maybe it's quite clear that you wouldn't infringe.

[00:21:24] Speaker 05:
But it seems to me it's hard for me to see why we wouldn't have to send it back.

[00:21:29] Speaker 02:
on the precise terms of the stipulation i suppose you're correct but functionally what you stated to to be the construction is what the construction already provides because as i said not just construed this that the construction of not just not disputed that requires the notch to start at one end of the edge of the base the district construction just requires the notch then to go all the way to the edge of the tile effectively by having to touch that line private contact there so what you are

[00:21:57] Speaker 02:
I think the construction you're proposing just sort of flushes out the interplay between those two constructions, which already is sort of mandated by what the district court's already said.

[00:22:06] Speaker 02:
So I don't think there's actually a functional difference between what you're saying and where we're currently at.

[00:22:11] Speaker 03:
I don't think I understand that answer.

[00:22:13] Speaker 03:
The district court construed edge as the line at which a surface of the tile terminates and just the line, correct?

[00:22:21] Speaker 03:
That was her construction.

[00:22:24] Speaker 02:
Correct.

[00:22:24] Speaker 02:
But what I'm getting at, Your Honor Judge Stark, is notch was construed as an opening intersecting an edge of the base through which mortar can penetrate.

[00:22:32] Speaker 02:
So that's at the other end.

[00:22:34] Speaker 02:
So effectively, by construing edge to reach the tile edge, there has to be a continuous amount of mortar that goes from one end to the other.

[00:22:41] Speaker 02:
There can't be a space or gap at the end.

[00:22:44] Speaker 03:
And what I understood the stipulation of non-infringement to mean was that your accused device does not allow the mortar

[00:22:53] Speaker 03:
to reach all the way to that line at which the title terminates.

[00:22:57] Speaker 03:
Correct.

[00:22:58] Speaker 03:
If we were to say the correct construction actually includes some undefined amount of area.

[00:23:03] Speaker 02:
I didn't take Judge Bryson to be proposing that, but maybe I misunderstood.

[00:23:08] Speaker 05:
Suppose that the construction is, and what I was trying to get at probably didn't articulate very well, but suppose the construction is that it has to be some area that includes up to,

[00:23:22] Speaker 02:
So gets to the line.

[00:23:24] Speaker 02:
So I think that answers Judge Stark's question.

[00:23:26] Speaker 02:
If that's true, then we don't get to the line.

[00:23:30] Speaker 03:
The line is still the critical sort of... If the construction, we were to say, it still has to get to the line, then you would say we don't entrench.

[00:23:40] Speaker 03:
If instead the construction were

[00:23:42] Speaker 03:
the edge includes the line but is not limited to the line, then there'd be a fact dispute as to whether the mortar gets to that area that we would now say is the edge.

[00:23:52] Speaker 02:
Sure, and I think there we're just inviting indefiniteness because we're in the situation where

[00:23:56] Speaker 02:
The fact finder can't distinguish between what Dota, sailor, Hoffman, all these other references are doing.

[00:24:01] Speaker 03:
Did you assert an indefiniteness?

[00:24:02] Speaker 02:
We did.

[00:24:03] Speaker 03:
The district court didn't reach it yet.

[00:24:04] Speaker 03:
Is that right?

[00:24:05] Speaker 02:
Correct.

[00:24:05] Speaker 02:
But I think it's a reason not to go that way.

[00:24:08] Speaker 02:
It's sort of a motivation of why the goal of claim construction is to provide clarity, not confusion.

[00:24:13] Speaker 02:
And we're just inviting that confusion by going there.

[00:24:15] Speaker 01:
Council, do you want to defend the majority of an area?

[00:24:19] Speaker 02:
Yes.

[00:24:19] Speaker 02:
There's no further questions on edge.

[00:24:22] Speaker 02:
I think the starting point here is, again, there is no plain language to this term.

[00:24:25] Speaker 02:
So we don't require disclaimer or disavowal.

[00:24:29] Speaker 02:
I think the district court's construction

[00:24:32] Speaker 02:
parses this language in a way that it can be read.

[00:24:35] Speaker 02:
It requires two things.

[00:24:37] Speaker 02:
One, that the Nazis provide a majority of an area for the device within the bounds of the base, and two, that that area needs to be tiled and mortared to subfloor contact.

[00:24:46] Speaker 02:
We're not reading out the words of

[00:24:48] Speaker 02:
of the type of contact required, we're just reading it as sort of this descriptive requirement on what the majority is.

[00:24:57] Speaker 02:
So that is a way to parse the language.

[00:25:00] Speaker 02:
And then the question is just, what does the intrinsic evidence say about what is the better reading?

[00:25:04] Speaker 02:
We're not in the land of clear and unmistakable disclaimer.

[00:25:07] Speaker 02:
We're just in the usual world of using the intrinsic evidence to figure out what the answer is.

[00:25:12] Speaker 02:
And there, the written description and prosecution history only support us.

[00:25:16] Speaker 02:
There is no affirmative evidence for their

[00:25:18] Speaker 02:
construction.

[00:25:19] Speaker 02:
The specification nor the prosecution history never makes any comparison to other holes relative to the notch and how much contact they provide.

[00:25:26] Speaker 02:
There's no statement of that.

[00:25:28] Speaker 02:
There's no embodiment like that.

[00:25:30] Speaker 03:
It's not expressly in there, but it's a comprising claim and an embodiment in which there were holes that provided a negative space in the base and notches

[00:25:41] Speaker 03:
would be within the scope of these bodies.

[00:25:43] Speaker 02:
I totally understand that point.

[00:25:45] Speaker 02:
I'm just making a more modest point, which is that there is no indication that they were contemplating ever any sort of comparison, including Judge Stark, as I think you pointed out, at Appendix 750, where the examiner explicitly suggested the amendment which reads on the district court's construction

[00:26:05] Speaker 02:
you would expect to them if the applicant wanted to say that's not what we meant in their remarks they would have said that's not what we're doing with something to do something else but they never got the words exam they didn't but they did make statements that are go to the overall amount of it's a problem ordered a subfloor contact not where the contact came from never making any of the remarks responding that suggestion that they say

[00:26:30] Speaker 02:
we're different because our notch provides the contact more than saleless holes or anything like that.

[00:26:36] Speaker 02:
And in fact, fundamentally, it doesn't make any sense to parse it as this relative comparison to other holes, because the only benefit they ever identified in the prosecution history or their briefing is that notches provide that contact.

[00:26:46] Speaker 02:
They just want to maximize that contact.

[00:26:49] Speaker 02:
They say that notches are what do it.

[00:26:51] Speaker 02:
But if you're already presupposing that there's other holes that would be providing that contact, there's no basis in the prosecution history to say,

[00:26:59] Speaker 02:
that you want notches to be doing it as opposed to other openings.

[00:27:02] Speaker 02:
So fundamentally, it doesn't make any sense.

[00:27:05] Speaker 02:
And I think, just like another baseline principle as to both terms, is if there is truly a state of equipoise in terms of analyzing the intrinsic evidence and whose construction is better than under the principles and athletic alternatives and others, this court defers, goes with the narrow construction.

[00:27:21] Speaker 02:
And AccuFloor has admitted that both of its constructions are broader than ours.

[00:27:26] Speaker 02:
If there are no further questions, I would ask that the district court's constructions be affirmed.

[00:27:30] Speaker 01:
Thank you, counsel.

[00:27:32] Speaker 01:
Ms.

[00:27:32] Speaker 01:
McComas has three minutes for rebuttal.

[00:27:36] Speaker 00:
Yes, sir.

[00:27:38] Speaker 00:
In respect to my time, I'll go very quickly.

[00:27:40] Speaker 00:
With respect to your question about Figure 11 and the suggestion that it was read out, to be clear, Figure 11 is referenced specifically as tile to mortar to edge, the embodiment of it in the

[00:27:54] Speaker 00:
patent specification itself.

[00:27:56] Speaker 00:
It's in column six.

[00:27:57] Speaker 05:
I know that, but again, the patent specification was written before the amendments.

[00:28:01] Speaker 05:
And I think I understood.

[00:28:07] Speaker 05:
Mr. Mann has to have pointed to an area where EDGE first made its appearance, which was earlier on in the prosecution history.

[00:28:17] Speaker 00:
Right.

[00:28:17] Speaker 00:
It's at 702.

[00:28:18] Speaker 00:
Right.

[00:28:20] Speaker 00:
And there's nothing in there that suggests edge to mortar to subfloor contact at the first and second notch.

[00:28:26] Speaker 00:
That's right.

[00:28:26] Speaker 00:
I'll talk about it later.

[00:28:27] Speaker 05:
But the point is that at the time at which figure 11 first made its appearance, which was in the original application, there was no reference in the claims to edge at all, right?

[00:28:39] Speaker 05:
That's right.

[00:28:40] Speaker 05:
So your argument that, well, edge was in there from the beginning and it was stuck but just modified.

[00:28:48] Speaker 00:
Well, but it's clearly contemplated, right?

[00:28:51] Speaker 00:
Because that's where I'm headed, is that you have in Column 6, Appendix 122, similarly, in a two-tile implementation, for example, each tile has edge-to-subfloor contact due to the notches.

[00:29:04] Speaker 00:
So that was already called out.

[00:29:05] Speaker 00:
So correct.

[00:29:07] Speaker 00:
This specific language was added at the earlier amendment.

[00:29:13] Speaker 00:
It doesn't change.

[00:29:14] Speaker 00:
It's not a modification to what was already disclosed in the specification.

[00:29:18] Speaker 00:
Figure 11 was already- Not claimed in the patent.

[00:29:21] Speaker 05:
Not claimed in the claims.

[00:29:23] Speaker 00:
At the original?

[00:29:24] Speaker 00:
Is that what you mean?

[00:29:26] Speaker 05:
Right.

[00:29:26] Speaker 05:
Which is the point at which Figure 11 was first put into the patent.

[00:29:33] Speaker 00:
Right.

[00:29:33] Speaker 00:
So I'm not arguing with you.

[00:29:35] Speaker 00:
I'm just trying to understand the concern.

[00:29:38] Speaker 00:
that we added the language, the specific language, with edge to subfloor contact at the second notch.

[00:29:45] Speaker 00:
But that doesn't change that the one reference we have in the patent that reflects that, and that when we added that term, it was consistent with our specification, which you would expect it to be.

[00:29:58] Speaker 05:
But if you make an amendment to the claims and you narrow the scope of what you're claiming, but the specification, which was pre-amendment,

[00:30:08] Speaker 05:
includes some embodiment that has clearly been excluded by the amendment, then you can't go back to the embodiment and say, aha, there's what we mean.

[00:30:19] Speaker 05:
Never mind the amendment that was made.

[00:30:21] Speaker 00:
I think the problem I'm having is I'm not reading that as clearly excluding what came before.

[00:30:27] Speaker 00:
It doesn't say very edge.

[00:30:29] Speaker 00:
I mean, it begs the question of what we're talking about, right?

[00:30:32] Speaker 00:
Because then we have, during the prosecution history, an extensive video, thank you so much for watching it, that lays out specifically our product, which we think is our commercial embodiment of what we're claiming in these claims.

[00:30:47] Speaker 00:
And it does the same thing.

[00:30:48] Speaker 00:
It doesn't go to the very edge.

[00:30:51] Speaker 05:
The commercial embodiment in the video looks like it's only the neck of the device only covered the groove where the grout goes.

[00:31:02] Speaker 05:
As far as I can see.

[00:31:03] Speaker 05:
That's in the... Maybe 1080.

[00:31:09] Speaker 05:
...760 and 1080 as well.

[00:31:12] Speaker 05:
If you look at that picture, that looks like the device within, to the extent that one can tell, the neck

[00:31:21] Speaker 05:
of the red device is covering the groove.

[00:31:24] Speaker 05:
It isn't covering any considerable portion of the rest of the tile.

[00:31:29] Speaker 00:
You say considerable portion.

[00:31:31] Speaker 00:
It's covering some portion of it.

[00:31:33] Speaker 05:
I can't tell that.

[00:31:35] Speaker 00:
You can because at that same page, I'm sorry, that sounded argumentative, not intended to be.

[00:31:40] Speaker 05:
All right, this is your job.

[00:31:43] Speaker 00:
This would be edge to mortar to subfloor direct contact.

[00:31:46] Speaker 00:
In other words, minimal interruption of the plastic at the assembly.

[00:31:51] Speaker 00:
So even that page has some reference.

[00:31:54] Speaker 00:
If I can just close very quickly.

[00:31:57] Speaker 01:
You may close because we have come to the edge of here a lot of times.

[00:32:04] Speaker 00:
But not the line.

[00:32:06] Speaker 00:
Just very quickly, to be clear, what we're asking for here is vacatur on both.

[00:32:12] Speaker 00:
There is a proposed claim construction on majority of the edge.

[00:32:17] Speaker 00:
Majority of the area, what we advocated for below with respect to edge was a plain and ordinary meaning, as one in the art would understand it.

[00:32:24] Speaker 00:
Thank you so much.

[00:32:25] Speaker 01:
Thank you to both counsel.

[00:32:27] Speaker 01:
The case is submitted.