[00:00:00] Speaker 02: Our last case this morning is DNA Genotech versus Spectrum Solutions, 2023-2017. [00:00:09] Speaker 02: Mr. Matsui. [00:00:27] Speaker 03: Thank you, Your Honor. [00:00:27] Speaker 03: May it please the court? [00:00:28] Speaker 03: Brian Matsui for Genotech. [00:00:31] Speaker 03: The district court's claim construction should be reversed. [00:00:34] Speaker 03: And I'd like to start with two points. [00:00:36] Speaker 03: First, the district court started with the wrong premise. [00:00:39] Speaker 03: It said that the claims were ambiguous simply because the claims don't say where in the device the reagent compartment would be located. [00:00:48] Speaker 03: And second, the district court did not require a clear and unmistakable disclaimer to depart from the plain and ordinary meaning of the term reagent compartment. [00:00:58] Speaker 03: Instead, it simply limited the claims based upon examples, embodiments, or features that were disclosed in the specification. [00:01:21] Speaker 00: It's not saying an embodiment of the invention or an example of the invention or one way to do it is it says the invention features. [00:01:30] Speaker 00: A first compartment, a second compartment. [00:01:33] Speaker 00: How is that importing some embodiment or limiting the clear language that's talking about [00:01:40] Speaker 00: the invention as a whole. [00:01:42] Speaker 03: So I think that when you look at the language that you're pointing to, Your Honor, on column six, it is talking about the invention. [00:01:50] Speaker 03: But it's not using the phrase the present invention, which is signaling that you're talking about the invention as a whole, what this court has pointed to. [00:01:58] Speaker 03: And so it's talking about an aspect. [00:02:01] Speaker 00: The present? [00:02:02] Speaker 00: Is the get out of jail free card here? [00:02:05] Speaker 03: No, I don't think that that's really it. [00:02:08] Speaker 03: I think that what you need to find in order for there to be a disclaimer when you have plain, ordinary meaning like this is you need to find something that is clear and unmistakable. [00:02:17] Speaker 03: And the real fact that it's talking about an aspect of the invention, an aspect being a part or a feature, isn't amounting to a disclaimer. [00:02:26] Speaker 03: If you look at this court precedent, [00:02:28] Speaker 03: like Tectronix or Hiram, you have something where there's clear language that indicates that the patentee is talking about the invention as a whole, and all really what they're doing is they're saying that this feature is important. [00:02:44] Speaker 03: There's nothing in this specification at all that indicates the location of the reagent compartment is important or essential or is, it matters at all. [00:02:55] Speaker 03: It only has a requirement that it's a compartment [00:02:57] Speaker 03: that holds the reagent. [00:02:59] Speaker 03: And that's why I think that the district court went wrong when it took a very broad term that has a plain and ordinary meaning. [00:03:07] Speaker 03: I don't think anyone disputes now that the plain and ordinary meaning of reagent compartment doesn't require a specific location. [00:03:15] Speaker 03: And it limited it to what the specification discloses when it just says languages like the device includes a container that has a first region and a second region. [00:03:29] Speaker 03: And that's not what this court precedent does when it's looking for a disclaimer. [00:03:34] Speaker 03: Now, if you don't mind, I'd just like to start with the claims quickly, because I think that that helps sort of like emphasize the point. [00:03:42] Speaker 03: When we have the claims appendix [00:03:45] Speaker 03: 140, when you look at column 19 at claim one, it's talking about a device, and the inventor is very clear when it wants to specify a structure that goes into the components of the device or a location that's important for this term, reagent compartment. [00:04:06] Speaker 03: For example, in B, it says the reagent compartment having a barrier, set barrier, sealing and containing reagents. [00:04:13] Speaker 03: So it's very specific there. [00:04:15] Speaker 03: as to what the reagent compartment has to do. [00:04:17] Speaker 00: And it's similarly specific for... If the reagent is not secure, then the thing doesn't work at all. [00:04:24] Speaker 00: You've got to have the secure reagent someplace, and then you add the saliva or whatever, [00:04:32] Speaker 00: and then you break the barrier and they have their reaction. [00:04:35] Speaker 00: So it's gotta be secure to begin with. [00:04:37] Speaker 00: That's a given, isn't it? [00:04:38] Speaker 00: It is. [00:04:39] Speaker 03: I mean, there has to be a barrier to hold the reagent, but there's nothing in this claim that indicates where that reagent compartment has to be. [00:04:49] Speaker 03: And for example, it could be in the cap. [00:04:51] Speaker 03: It can be anywhere in the device. [00:04:54] Speaker 03: And had the inventor wanted to specify a location, it could have specified the location by saying that, [00:05:01] Speaker 03: you know, the containment vessel containing the reagent compartment or something along those lines. [00:05:07] Speaker 03: It didn't do that here. [00:05:09] Speaker 03: All we have then is a plain normal meaning of a term like reagent compartment. [00:05:13] Speaker 03: And then you need to find either a definition or a disclaimer. [00:05:18] Speaker 03: And there is no definition or disclaimer in this case. [00:05:21] Speaker 00: When you look at this... So clarify this for me. [00:05:23] Speaker 00: Did the other side below offer this construction? [00:05:39] Speaker 00: offered to the court or is there one construction offered by your side below that the court just didn't buy and came up with its own plain and ordinary meaning of the language? [00:05:50] Speaker 03: So are we talking about the reagent compartment or the containment vessel construction here? [00:05:57] Speaker 03: Our challenge is to the construction of reagent. [00:05:59] Speaker 03: Reagent compartment. [00:06:00] Speaker 03: Reagent compartment. [00:06:01] Speaker 00: From the claim. [00:06:02] Speaker 03: Yes. [00:06:03] Speaker 03: And our challenge is to that. [00:06:04] Speaker 03: And we said it should be the plain and ordinary meaning. [00:06:06] Speaker 03: And the other side argued that it should be in the containment vessel. [00:06:11] Speaker 03: And the district court adopted that construction based upon its belief of a disclaimer. [00:06:18] Speaker 00: Can you offer an actual construction [00:06:19] Speaker 00: of where the reagent compartment should be. [00:06:26] Speaker 00: Is that the plain or new mean? [00:06:27] Speaker 03: And that's exactly what it is in this situation, because the plain or new reagent compartment is just a compartment that contains reagent, and there's nothing in the claim itself that will require it to be in any specific location of the device. [00:06:42] Speaker 03: It just says the device includes, and then it has a reagent compartment. [00:06:47] Speaker 03: we would be entitled to the plain, ordinary meaning of that term, absent some sort of definition. [00:06:52] Speaker 01: I mean, why couldn't clay, though, that they wanted in a specific place, why didn't you say reagent compartment is something that is capable of sealing in the reagents and can be in any location in the invention? [00:07:06] Speaker 01: I understand, but this is a problem we get all the time. [00:07:12] Speaker 01: It seems to me that when the scope of a claim term is put into play, [00:07:27] Speaker 01: it behooves both parties to offer a specific interpretation rather than to just throw out plain and ordinary meaning, which gives the district court no guidance and then leaves us with no guidance until you get here and start arguing for a specific meeting. [00:07:44] Speaker 00: I mean, on that point, I've done hundreds of client construction hearings. [00:07:48] Speaker 03: Certainly, Your Honor. [00:07:49] Speaker 00: And I can't tell you how many times there are five terms at issue or 15 terms at issue or 20 terms at issue. [00:07:57] Speaker 00: And we get there, and every one of them says, plain and ordinary meeting, plain and ordinary meeting, plain and ordinary meeting. [00:08:03] Speaker 00: It doesn't give the court any guidance. [00:08:05] Speaker 00: It doesn't give the court anything other than, we don't want what they want. [00:08:10] Speaker 00: Certainly on how it's plain and ordinary meaning from your side, really joining the issue and really giving the court something other than, something substantive, [00:08:22] Speaker 03: I disagree in this case that we should have to offer a construction that specifies a location because we shouldn't have to narrow our claims based upon... I don't think anybody's saying you have to, but I think the problem is when it's put in play and they have clearly said it has to be in... [00:08:44] Speaker 01: the containment vessel, you put yourself in a bad position when you don't offer construction that says it doesn't have to be. [00:08:52] Speaker 03: Well, I mean, we did. [00:08:53] Speaker 03: We argued that it doesn't need to. [00:08:54] Speaker 03: I mean, the whole rejoined issue completely on the issue as to whether or not it needs to be in the containment vessel. [00:09:01] Speaker 03: So I think if that was the concern, that should not be a concern of this court, because we definitively argued that it does not need to be in the containment vessel. [00:09:14] Speaker 03: The other side is the one that is trying to basically take a claim term and add requirements that were found in the specification. [00:09:20] Speaker 03: And we said, no, it doesn't need to be in this specific location. [00:09:25] Speaker 00: So you don't read the specification to require that it be in the containment business? [00:09:32] Speaker 00: No, not at all, Your Honor. [00:09:33] Speaker 00: And you just, the language in column six [00:09:40] Speaker 03: It's not a lexicography, and I don't think it's neither a lexicography nor a disclaimer. [00:09:47] Speaker 03: It's really describing ways in which the invention can be structured. [00:09:52] Speaker 00: But if we were to find... [00:10:00] Speaker 00: totality of the specification, right? [00:10:02] Speaker 03: Yes, Your Honor, but this is not a case where there is multiple ordinary meanings, and you're looking to the specification to see what the best reading of a term is. [00:10:11] Speaker 03: This is a case in which there is a plain, ordinary meaning of reagent compartment, and the other side is trying to narrow the claim term based upon the specification. [00:10:22] Speaker 00: You're saying that there's only one plain and ordinary meaning. [00:10:25] Speaker 03: of this claim term, yes, there is. [00:10:29] Speaker 03: And certainly, there is no, the plain name does not require it to be in the containment vessel. [00:10:36] Speaker 03: And so that's why they went to disclaimer. [00:10:38] Speaker 03: That's why the other side and the district court, [00:10:40] Speaker 03: went to disclaimer, which is a high burden. [00:10:43] Speaker 03: You have to find something that's clear and unmistakable. [00:10:46] Speaker 03: They didn't argue that this is just simply a case in which you can take the term reagent compartment and say, well, now what is going to be the meaning in the context of the specification, because we don't know what that term can mean. [00:10:57] Speaker 03: They accepted that there is a meaning of this term, and now they're trying to say that there was disclaimer. [00:11:03] Speaker 03: But when you look at this court's precedent to find a disclaimer, even when you have phrases like the president of invention [00:11:10] Speaker 03: which here it's not even tethered to the language that you are responding to, you still have language that shows that it's important in some way that the location be here, or you have some disparity. [00:11:44] Speaker 00: or an abuse on the part of the trial court. [00:11:50] Speaker 03: The only argument they made was disclaimer. [00:11:54] Speaker 03: They forfeited any other type of argument at claim construction. [00:11:57] Speaker 03: They made a disclaimer argument only. [00:11:59] Speaker 03: And that's what the district court decided, and then that's what's up here for this court to decide. [00:12:04] Speaker 00: And so- Claim construction is a legal action obligated, an obligation of the court. [00:12:09] Speaker 00: It's not, you didn't argue it so you can't contain it, you can't take a position on it. [00:12:14] Speaker 03: This court has held that you can't change your claim construction arguments on appeal and that's effectively what this would be. [00:12:22] Speaker 03: It would be fundamentally shifting the argument, but regardless, even if the court... [00:12:27] Speaker 01: disclaimer, the plain language, just looking at the claim in the context of the specification, is insufficient to say that the reagent compartment has to be in the containment vessel. [00:12:41] Speaker 01: That's correct, Your Honor. [00:12:43] Speaker 01: There's nothing in the plain language of the actual claim that puts it there. [00:12:47] Speaker 03: Puts a location, and there's nothing in the specification that would say that [00:12:51] Speaker 03: This is not the kind of case where you look at the specification and say, you know, through passages and passages and passages, it's clear that this is the only way you're talking about this specific term. [00:13:02] Speaker 03: The true agent compartment isn't even used in those passages, which is something that you would expect ordinarily in there. [00:13:10] Speaker 03: Judge Lurie, if I could just, you know, I know that I'm into my rebuttal time, but just make one quick point. [00:13:16] Speaker 03: With respect to the provisional, this case is very different from cases like DDR and MPHJ. [00:13:21] Speaker 03: First of all, the provisional that was incorporated by referent here is just very different. [00:13:26] Speaker 03: It's not at all the type that's incorporated verbatim. [00:13:29] Speaker 03: If you look at appendix 3182 to 3191, it's very different. [00:13:35] Speaker 03: In cases like MPHJ and DDR, there was language in the provisional that was admitted that was limited language or a definition. [00:13:44] Speaker 03: And so I think a person of learning skill in the art would say, oh, well, that's important. [00:13:47] Speaker 03: Here, we have no limiting language in the specification. [00:13:51] Speaker 03: And so it's just an example. [00:13:53] Speaker 03: If there are no questions, I would like to move on. [00:13:55] Speaker 03: Do we have a reminder of your time? [00:13:57] Speaker 03: Thank you. [00:14:06] Speaker 04: Morning, Your Honor. [00:14:06] Speaker 04: I'll take the floor. [00:14:08] Speaker 04: I'll be reside for the appellee. [00:14:09] Speaker 02: Reside? [00:14:10] Speaker 04: Reside. [00:14:11] Speaker 04: Reside, yes, sir. [00:14:13] Speaker 04: Your Honor, I'd like to start with a provisional application in terms of just the history of what happened. [00:14:17] Speaker 04: You had a provisional application in this case that had various embodiments, including an embodiment with a reagent compartment in the cap. [00:14:24] Speaker 04: You had other embodiments where the reagent compartment was in the container. [00:14:28] Speaker 04: Now, the word containment vessel never appears in the specification at all, including in the 187. [00:14:32] Speaker 04: Now, when the provisional was converted to the non-provisional, all embodiments that had to do with the reading compartment in the cap were removed from the provisional application to the non-provisional. [00:14:43] Speaker 04: Now, the embodiments with the reading compartment in the tube were all faithfully reproduced into the non-provisional. [00:14:49] Speaker 00: Now, what also happened was that... Is that the basis for your disclaimer argument? [00:14:53] Speaker 04: No, the base of the disclaimer argument is actually the specification of the 187. [00:14:56] Speaker 04: It's kind of going through the history of what happened in terms of what the patentee can or cannot do. [00:15:01] Speaker 04: Now, when genotype went from the provisional to the non-provisional, not only did they take out the embodiments that actually had to do with [00:15:12] Speaker 04: being in the cap, they also took out disclosure in the provisional application that actually said in an embodiment, the radiation compartment is in the tube. [00:15:22] Speaker 04: That was stricken as well. [00:15:24] Speaker 04: And then what we had was when we went to the non-provisional application, the disclosure of the 187 patent, you now have statements about, in the sixth aspect, [00:15:34] Speaker 04: the invention features. [00:15:35] Speaker 04: Now, the aspect is important. [00:15:37] Speaker 04: Now, we heard Genotype argue that when it comes to aspects, those are not necessarily the invention includes. [00:15:43] Speaker 04: Now, this invention has three different sort of subsets. [00:15:47] Speaker 04: It was the compositions, methods, and the container. [00:15:51] Speaker 04: Now, when it came to the various different aspects, aspects one, two, three, four, [00:15:56] Speaker 04: Aspect five had to do with compositions and methods. [00:15:59] Speaker 04: Aspect six was the only one that had to do with the container. [00:16:03] Speaker 04: And so when they were saying in the sixth aspect, the invention features, they were talking about the device invention as a whole. [00:16:11] Speaker 04: In the case law, and I heard counsel mention Tectronic, in the Tectronic case, you had a very similar issue as well. [00:16:17] Speaker 04: Not just was the infrared detector located in the wall console. [00:16:21] Speaker 04: In that case, this court also found the fact that there was an aspect of the invention that had to do with a microcontroller didn't make any difference, because that's a different invention. [00:16:32] Speaker 04: The fact that you have various different inventions included [00:16:35] Speaker 04: in this particular application doesn't mean that the device invention, which is on its own as a whole, isn't described as the invention. [00:16:44] Speaker 04: Now, one other thing that we also have in this case is citations to cases like Hiram, where they're talking about the specifications mentioning of criticality, essentiality, or importance. [00:16:55] Speaker 04: And there, it actually, Hiram is actually really, really interesting in that that requirements consisted with this court's jurisprudence. [00:17:05] Speaker 04: actually says that you do that when you don't have a description of the present invention as a whole. [00:17:12] Speaker 04: If you're trying to go to an embodiment, then you need essentiality, criticality, or importance. [00:17:18] Speaker 04: And set on page 1373 of Hiram, it says, however absent some language in the spec or prosecution suggesting that wired connection is important, essential, necessary, or the present invention, [00:17:32] Speaker 04: There is no basis to narrow. [00:17:34] Speaker 04: Here, we have the present invention. [00:17:36] Speaker 04: And actually, when you actually look at the Regents of the University of Minnesota, what you have in that case also is the fact that when you describe the invention as a whole, that is disclaimer. [00:17:48] Speaker 04: Now here, when you go from the non-provisional [00:17:50] Speaker 04: where you have embodiments with the cap. [00:17:53] Speaker 04: You excise them. [00:17:54] Speaker 04: You have disclosure that explicitly says in an embodiment, it's in the actual reagent, the reagent compartment is in the container. [00:18:02] Speaker 04: You excise them. [00:18:03] Speaker 04: You go into the non-provisional. [00:18:05] Speaker 04: You are doing exactly what DDR Holdings said. [00:18:08] Speaker 04: You are evolving your application and what you delete is as important [00:18:14] Speaker 04: as showing what you intended to mean by that than anything else. [00:18:18] Speaker 04: Now, one other thing that we heard is the ambiguity of the claims. [00:18:21] Speaker 04: Now, these claims were ambiguous on purpose. [00:18:24] Speaker 04: If you actually look at the claim language, and we're not arguing ambiguity because we don't need that here. [00:18:28] Speaker 04: What we actually just need is a delineation of the present invention. [00:18:33] Speaker 04: Now, what you have there is you actually see. [00:18:36] Speaker 02: To be clear, the specification doesn't use the word present. [00:18:40] Speaker 02: It doesn't use the word present, but it says the invention features, and every description... You've said that several times, so you might just omit the word present from your statement. [00:18:49] Speaker 04: Yes, Your Honor, I apologize. [00:18:50] Speaker 04: So it does not say the present invention, it says the device invention features, and then it says the device includes these aspects. [00:18:58] Speaker 04: So with the totality of what we're looking at between the non-provisional to the provisional to the non-provisional, the statements in the non-provisional about the invention, and then what you also see is [00:19:13] Speaker 04: are really not necessarily useful to interpret claims. [00:19:17] Speaker 04: Their own understanding was evinced in later iterations of various different applications where they actually tried to get patents on containers with a department of the cap. [00:19:25] Speaker 04: Now I understand this, of course, Jurisprudence and Pfizer and other cases says that we can't look to those to interpret claims, but we can look to them to see that whether they understood their disclaimer to be effective or not, and that's what we have in this case. [00:19:39] Speaker 04: Now, another thing that I think is important to also get to is something that Judge Gittstrap, you were kind of mentioning is this issue of containment vessel. [00:19:48] Speaker 04: The court's finding in summary judgment was on containment vessel. [00:19:52] Speaker 04: It wasn't on reagent compartment. [00:19:54] Speaker 04: Now, what this court would have to do in order to get to reagent compartment would have to say, look, we understand that the issue before us is not reagent compartment. [00:20:08] Speaker 04: It's containment vessel. [00:20:10] Speaker 04: But because reagent compartment is construed in this manner, [00:20:14] Speaker 04: Genotech was forced to take a position that was found to be specious and rejected by the district court. [00:20:20] Speaker 04: And now we're going to redo the claim construction on this issue of reaching compartment so that Genotech can go back and restart their evidence and put in new evidence for a limitation not before this court. [00:20:34] Speaker 04: And we believe that the ruthless argument comes there. [00:20:37] Speaker 04: It's a threshold issue that the court would have to reach. [00:20:40] Speaker 04: Because if this court were to reverse the Asian compartment, the court's finding that the accused product did not meet the containment vessel limitation would remain in place. [00:20:51] Speaker 00: Well, true enough, the court's finding was on containment vessel, but the summary judge [00:20:58] Speaker 04: I believe that summary judgment was only appropriate because the evidence that Genentech put forward on containment vessel was found to be specious and summarily rejected. [00:21:13] Speaker 04: And actually the lower court was careful to state [00:21:17] Speaker 04: because Genotech actually moved for reconsideration of the compartment of the reagent compartment limitation in this opposition to summary judgment. [00:21:25] Speaker 04: In denying that motion for reconsideration, the court specifically said the summary judgment is not on reagent compartment, it's on containment vessel based on an argument made by Genotech based on evidence put forth by its [00:21:39] Speaker 04: And if we were to go back to the lower court, what we would have to do is go back in time and now put in other evidence on the containment vessel, which is not before this court, only on the Reagent Department. [00:21:52] Speaker 00: So I'm not sure I buy that, but I hear your argument. [00:21:56] Speaker 04: I'm saying procedurally in terms of what we would have to do. [00:21:58] Speaker 04: It wouldn't set aside the judgment on containment vessel. [00:22:01] Speaker 04: It would give them effectively a mulligan to go back and re-argue that particular point based on, OK, so now that we have a different construction on the regional department, [00:22:11] Speaker 04: Let's go back to a prior iteration of your argument on containment vessel and now let's take back the expert declaration you put in that says containment vessel is the two and the cap put together, which is the argument they made. [00:22:24] Speaker 04: Basically saying, if you get a clone construction that you don't like, you can argue something else and then have some tenuous connection to the prior term to say, hey, I'd like to get a redo because it's a de novo issue. [00:22:38] Speaker 04: That's the point that I was making there, Your Honor. [00:22:41] Speaker 00: Well, I'm confident that if we send it back to the trial court, they'll argue everything. [00:22:46] Speaker 00: Both sides will argue everything they can. [00:22:48] Speaker 00: It'll be up to trial court to constrain the applications of the remand, if that should happen. [00:22:54] Speaker 00: But I don't know that that's a reason that should move this court one way or the other at this juncture. [00:23:00] Speaker 04: And I understand what you're saying. [00:23:02] Speaker 04: I don't have any fear about the parties being able to argue both sides well at the district court and the district court being able to perceive those arguments. [00:23:11] Speaker 04: The concern that I have more is if this sum of judgment wasn't granted and the claim construction were what it were because there was an offer to [00:23:20] Speaker 04: stipulate the non-affringement, come and try to figure out the claim construction issue on the radiation department first, before going on the merits. [00:23:29] Speaker 04: But if some of your judgment were denied based on the fact that there's factual issues, let's move forward, this entire issue would have gone to a jury. [00:23:37] Speaker 04: And the argument that would have been made to a jury would have been on containment vessel, and we would have been here. [00:23:41] Speaker 04: And that, a whole thing that basically served. [00:23:45] Speaker 00: We're talking about two different things. [00:23:47] Speaker 00: We're talking about claim construction, [00:23:49] Speaker 00: subject to the court's claim construction, we're talking about the court's granting of summary judgment and of non-infringement. [00:23:57] Speaker 00: And whether that's driven by the other, they're two different things. [00:24:01] Speaker 00: And really what this court has got to focus on, did the trial court err in adopting the construction that it adopted? [00:24:08] Speaker 00: Regardless of whether that goes to a jury later or ends up granting summary judgment or whatever happens after the fact, our focus is on the claim construction process [00:24:23] Speaker 04: And I agree, Your Honor, but the part that I'm arguing is that claim construction here and the non-infringement position here was not on the term that was the subject of the non-infringement opinion by the court. [00:24:40] Speaker 04: what we would have to do to get to the only issue raised by Genotech here, which is reagent compartment, would have to be, well, reagent compartment is somehow linked to the element that was found missing from the product, and because it's linked, we're gonna look at that in Acceleration Bay, there were two different issues before the court, and the court said, well, because this wouldn't set aside the judgment, the issues move. [00:25:05] Speaker 04: So what I'm saying here is, if we were to look at [00:25:09] Speaker 04: containment vessel, I would understand that, because that's the basis of the judgment. [00:25:12] Speaker 04: That's where the judgment was based on the fact that containment vessel cannot include the cap, which is what Genentech was arguing. [00:25:20] Speaker 04: But now Genentech is arguing, well, if the original compartment limitation were construed differently, I would have taken a different position on containment vessel, and I wouldn't have lost. [00:25:32] Speaker 02: All right. [00:25:32] Speaker 02: Anything for the Council? [00:25:33] Speaker 02: No, Your Honor. [00:25:37] Speaker 02: Mr. Matsui, we'll give you a few minutes for a bottle. [00:25:41] Speaker 00: Thank you. [00:25:48] Speaker 03: Just briefly on the non-infringement issue, we should not have to appeal non-infringement under the district court's construction when we're challenging that construction. [00:25:56] Speaker 03: That's what they want us to do at Red Grief, page 27. [00:25:59] Speaker 03: They conceded at appendix 5789. [00:26:04] Speaker 03: that the tube is the containment vessel, Your Honor. [00:26:07] Speaker 03: That's what they said. [00:26:07] Speaker 03: And our complaint made clear that the spectrum product includes a tube with one continuous wall, which is the containment vessel for collecting saliva. [00:26:17] Speaker 03: We had to change our infringement contentions after the district court's construction. [00:26:20] Speaker 03: We would change them again. [00:26:22] Speaker 03: if this court were to remand with the new construction based upon reagent compartment. [00:26:28] Speaker 03: On the issue of the word aspect, aspect isn't a term of art that this court basically grants way to to say it's like the present invention. [00:26:37] Speaker 03: There's no language here that connects aspect with the present invention. [00:26:42] Speaker 03: All the references to the present invention are where the patentee is talking about methods and compositions, like the compositions for the reagent, not the device itself. [00:26:52] Speaker 03: And so I think that that really takes us even further away from any sort of disclaimer case law. [00:27:00] Speaker 03: On the provisional application, again, I would [00:27:05] Speaker 03: Just note that the provisional here in this case is very, very different from the actual 187 patent specification. [00:27:13] Speaker 03: It's not one of those things where you can go through and say, OK, it's clear that they took out this sentence because it was important. [00:27:20] Speaker 03: It was affected the specifications like three to four times longer. [00:27:24] Speaker 03: It was basically completely rewritten. [00:27:27] Speaker 03: And so I don't think this is a case like in NPHDA where you can say that what was taken out was significant. [00:27:33] Speaker 03: If anything, I think that what it shows is that by incorporating it by reference, it shows that there's other types of embodiments in which the reagent compartment can be in the cap, not just in the containment vessel itself. [00:27:47] Speaker 03: If there are no further questions, we'd ask. [00:27:49] Speaker 02: Thank you, counselors. [00:27:50] Speaker 03: We appreciate both arguments. [00:27:52] Speaker 02: The case is submitted, and that concludes today's arguments.