[00:00:01] Speaker 03:
Our next case for argument is 24-1537, Dura Systems versus Van Packer.

[00:00:07] Speaker 03:
Mr. Summerfield, please proceed when you're ready.

[00:00:17] Speaker 01:
Thank you, Your Honor.

[00:00:17] Speaker 01:
May it please the court, George Summerfield, on behalf of the appellant, Van Packer.

[00:00:23] Speaker 01:
First of all, before we get in the merits, I'd like to say that it

[00:00:25] Speaker 01:
After reconsideration, we believe that Appellee is right, that the correct remedy on appeal, if there is error below, is remand and not reversal.

[00:00:37] Speaker 01:
This appeal comes down to a single issue.

[00:00:39] Speaker 01:
Whether in the limitation, thermal spacers thermally isolating, the adjective thermal, which modifies the noun spacers, has a meaning discrete from the adverb thermally, which modifies the verb isolating.

[00:00:52] Speaker 01:
Canons of claim construction dictate that it does,

[00:00:55] Speaker 01:
as no term should be rendered superfluous.

[00:00:58] Speaker 01:
However, the district court in her construction began with components that maintain a space.

[00:01:06] Speaker 03:
And then if we look at appendix page 23, the operative portion of that page says that while the thermal space- Can I just ask you, while I 100% think that you're right most of the time, you shouldn't read a word as superfluous.

[00:01:19] Speaker 03:
It should have meaning.

[00:01:21] Speaker 03:
In this case, the reason that I'm struggling to agree with that general proposition is the prosecution history, because it used to just say thermal spacers.

[00:01:31] Speaker 03:
And the examiner came along and rejected it.

[00:01:34] Speaker 03:
And he interpreted thermal spacers as being a generic spacer with no thermal property components to it.

[00:01:41] Speaker 03:
And I'm sure that the patent applicant probably scratched his head and said, well, it says thermal, but I guess the guy doesn't get it.

[00:01:48] Speaker 03:
So let's beat him over the head with thermal.

[00:01:49] Speaker 03:
Let's instead add in thermal spacers that perform a thermal function, whatever the next part was.

[00:01:57] Speaker 03:
So why doesn't that override your general principle

[00:02:01] Speaker 03:
with this very specific prosecution example.

[00:02:05] Speaker 03:
The general principle is words shouldn't be superfluous.

[00:02:07] Speaker 03:
But in this case, the patent examiner came in and when they said thermal spacing, he treated thermal as not having any meaning.

[00:02:14] Speaker 03:
And he made them redundantly include the thermal property language in there.

[00:02:18] Speaker 03:
So given that, why doesn't it blow your argument up?

[00:02:21] Speaker 01:
Because it actually supports it, Your Honor.

[00:02:22] Speaker 01:
The point is the spacers themselves have to have thermal properties that result in thermal isolation.

[00:02:29] Speaker 01:
It may very well be

[00:02:30] Speaker 01:
that the examiner was looking for belt and suspenders on this issue.

[00:02:34] Speaker 01:
But the end result is the same.

[00:02:36] Speaker 01:
If you have generic spacers that may result in thermal isolation, that doesn't satisfy the claim language.

[00:02:43] Speaker 01:
If you have thermal isolation that results from something other than the spacers themselves, for example, the size of the void, which is a separate claim limitation, or insulation that happens to be present in the gaps of the spacers, then the limitation isn't met.

[00:02:58] Speaker 02:
Can I just ask what you mean by specific thermal properties?

[00:03:01] Speaker 02:
I take it, although you don't express the say in the brief, that you mean that it has to be made out of a certain material.

[00:03:07] Speaker 02:
Is that your argument?

[00:03:08] Speaker 01:
That's one way, Your Honor.

[00:03:09] Speaker 01:
But whatever it is, the spacers themselves have to be responsible for the thermal isolation, not other things that may be present.

[00:03:18] Speaker 05:
Why?

[00:03:18] Speaker 05:
We have lots of functional claiming.

[00:03:20] Speaker 05:
Some people don't like it.

[00:03:21] Speaker 05:
If you call it a thermal spacer because it functions,

[00:03:27] Speaker 05:
to perform that task, even if it's a generic spacer, if it's the way it's placed, if it's the way it looks, the way it's shaped, and that performs the goal of third.

[00:03:39] Speaker 05:
Why isn't that sufficient?

[00:03:40] Speaker 01:
But this isn't functional claiming here, Your Honor.

[00:03:42] Speaker 01:
The instrumentality that is responsible for the thermal isolation is specified in the claims.

[00:03:49] Speaker 01:
It can't be anything.

[00:03:50] Speaker 01:
It can't be that there happens to be thermal isolation, so the term thermal spacer is somehow met.

[00:03:57] Speaker 01:
And that's the unfortunate result of the district court's decision.

[00:04:01] Speaker 01:
She basically said the spacers themselves don't have to have any thermal properties at all.

[00:04:07] Speaker 02:
I don't think I understand what you mean by has to be responsible themselves for thermal isolation.

[00:04:15] Speaker 02:
That doesn't make sense to me as a matter of science.

[00:04:19] Speaker 02:
What do you mean by that?

[00:04:21] Speaker 02:
You mean they should limit conducting of heat?

[00:04:25] Speaker 01:
Well, if we look at what the actual spacer is, it's this device here.

[00:04:28] Speaker 01:
It's made out of metal.

[00:04:30] Speaker 01:
And as their expert admitted below, metal conducts heat.

[00:04:33] Speaker 01:
You put a tea kettle on a stove, it gets hot, you don't touch it.

[00:04:36] Speaker 03:
Yeah, but you're trying to read out the holes.

[00:04:38] Speaker 03:
You're trying to suggest the holes in that device are not part of the spacer.

[00:04:41] Speaker 03:
But they are.

[00:04:42] Speaker 01:
No, Your Honor.

[00:04:42] Speaker 03:
They're part of the spacer.

[00:04:43] Speaker 01:
Actually not.

[00:04:44] Speaker 01:
What we're saying is that if we actually look at Paige.

[00:04:51] Speaker 03:
By the way, I love that you brought in the spacer.

[00:04:55] Speaker 01:
Thank you, Your Honor.

[00:04:56] Speaker 01:
If we look at page 2241, we see how this is actually deployed.

[00:05:00] Speaker 01:
And it's not the holes that are, it's not deployed with these holes empty.

[00:05:04] Speaker 01:
It's deployed with insulation material in the holes.

[00:05:08] Speaker 01:
And the reason you need the insulation material is because this spacer itself has no thermal capabilities.

[00:05:15] Speaker 01:
It's a heat conductor and a very effective one.

[00:05:18] Speaker 01:
So the insulation material in this circumstance is the thing that

[00:05:23] Speaker 01:
basically insulates the components that are supposed to be thermally isolated from one another according to the claim language.

[00:05:31] Speaker 01:
Now, they could have drafted the claim to say the spacer plus insulation results in thermal isolation.

[00:05:38] Speaker 01:
They didn't say that.

[00:05:40] Speaker 01:
They made it very clear that it is the spacer itself and only the spacer that results in the thermal isolation.

[00:05:46] Speaker 01:
They also specified

[00:05:48] Speaker 01:
that the separator, the spacer, has to be thermal.

[00:05:52] Speaker 05:
And I think this is the argument they make that refers back to your application, which is arguably the embodiment as the accused product, that the spacer is designed with perforations that create vertical metal strips between the perforations.

[00:06:08] Speaker 05:
And the medical strips act as a heat sink by reducing the amount of heat transferred between the inner lines.

[00:06:15] Speaker 01:
Yes, Your Honor.

[00:06:15] Speaker 01:
If we look at page 2167 of the appendix,

[00:06:18] Speaker 01:
where that discussion is found is actually from their summary judgment pleading.

[00:06:22] Speaker 01:
What they do is they cite a couple paragraphs from our application, so it's not intrinsic evidence, and it talks about these perforations.

[00:06:30] Speaker 01:
And if we look at what is actually shown there, it looks nothing like this in the first instance.

[00:06:34] Speaker 01:
But secondly, it's a little unclear as to what this is saying, because it talks about two things.

[00:06:39] Speaker 01:
It talks about perforations 130, and then it talks about metal strips 132.

[00:06:44] Speaker 01:
But the operative language, which bridges 2167 and 2168, says the metal strips 130.

[00:06:51] Speaker 01:
So apparently, there's a mistake there, because the metal strips aren't 130 in the earlier paragraph.

[00:06:56] Speaker 01:
They're 132.

[00:06:57] Speaker 01:
So we really don't know what's being talked about here.

[00:06:59] Speaker 01:
But in any event, this is a claim construction issue.

[00:07:02] Speaker 03:
Well, now, this doesn't feel like a claim construction issue.

[00:07:04] Speaker 03:
This feels like we've pivoted to a non-infringement issue, not a claim construction issue.

[00:07:08] Speaker 01:
The only reason, Your Honor, is because they brought up our application, a clearly extrinsic piece of evidence that doesn't pertain to the patent in suit.

[00:07:17] Speaker 01:
That's the only reason we've been talking about it, because they seem to think that our own published patent application makes a difference as to the scope of the claims of their patent.

[00:07:25] Speaker 03:
I'm confused.

[00:07:26] Speaker 03:
You have just admitted, right, that those holes are part of the thermal spacer.

[00:07:30] Speaker 03:
Did you not?

[00:07:31] Speaker 01:
Yes, Your Honor.

[00:07:32] Speaker 03:
So if the holes are part of the thermal spacer, then isn't your argument one of non-infringement, not claim construction?

[00:07:40] Speaker 03:
Because your argument is what is actually performing the isolating function is insulation that is inserted in those holes, not the holes themselves.

[00:07:48] Speaker 03:
So doesn't that go to infringement, not claim construction?

[00:07:51] Speaker 01:
No, Your Honor.

[00:07:51] Speaker 01:
It is claim construction.

[00:07:52] Speaker 01:
Because under the district court's construction, it doesn't matter what's performing the isolation.

[00:07:59] Speaker 01:
It doesn't matter.

[00:08:02] Speaker 01:
It could be other claim limitations.

[00:08:04] Speaker 01:
All she says is that there has to be a separation resulting in thermal isolation.

[00:08:10] Speaker 01:
She says the spacers themselves need not have any thermal capabilities whatsoever, and that's at page 23 of the appendix.

[00:08:18] Speaker 01:
So under her construction, any old spacer would be sufficient as long as the end result, no matter how you get there, is thermal isolation.

[00:08:27] Speaker 01:
That is not what the claim says, Your Honor.

[00:08:30] Speaker 01:
And nowhere in the specification, anywhere in the appellee's patent does it use that?

[00:08:36] Speaker 03:
Well, her plan construction is, quote, components that maintain a space between the inner liner and the outer casing that limit the amount of heat conducted, dot, dot, dot.

[00:08:45] Speaker 03:
But so, I mean, so she seems to be identifying things, components, not any old whatever if it happens, but components.

[00:08:54] Speaker 01:
Sure, but that's exactly right, Judge.

[00:08:55] Speaker 01:
You couldn't select a more generic term than components.

[00:08:58] Speaker 01:
And again, the components could be

[00:09:00] Speaker 01:
the spacer with the insulation, with a sufficient gap in the void, all of the things that might contribute to thermal isolation well beyond the spacer itself.

[00:09:13] Speaker 01:
So basically, the term thermal spacer becomes irrelevant to this invention.

[00:09:19] Speaker 01:
And very clearly from the prosecution history, whether the examiner articulated correctly what the syntax in the claims was or wasn't,

[00:09:29] Speaker 01:
The applicant made it very clear that the spacers themselves had to have thermal characteristics.

[00:09:36] Speaker 01:
And rather than contradicting our argument, the fact that they went ahead and said thermal spacers thermally isolating, they wanted to make it absolutely clear that the spacers we're talking about in this situation have to have thermal characteristics themselves.

[00:09:54] Speaker 01:
And they said as much during the prosecution history.

[00:09:58] Speaker 02:
I don't know if it's that clear.

[00:09:59] Speaker 02:
You said very clear.

[00:10:00] Speaker 02:
I don't know if it's that clear.

[00:10:01] Speaker 02:
It seemed to me to be ambiguous as to whether the discussion was talking about the spacer itself or the fact that the arrangement of the spacer in the overall apparatus creating a gap which created the property of thermal isolation is what they were talking about.

[00:10:18] Speaker 01:
Well, we can start at page 422 of the appendix, Your Honor.

[00:10:22] Speaker 01:
And this goes back to what Chief Judge Moore asked me about a few minutes ago.

[00:10:32] Speaker 01:
If we look at paragraph 7, the middle of the paragraph, there's a sentence that starts, thus the spacers.

[00:10:37] Speaker 01:
The examiner says, thus the spacers are only there to keep duct components in a spaced relationship without requiring any specific thermal properties.

[00:10:46] Speaker 01:
So that's the office action rejection.

[00:10:49] Speaker 01:
Now if we go to page 438 of the appendix, we see the response.

[00:10:57] Speaker 01:
And if we look at the next to last paragraph, the last sentence,

[00:11:01] Speaker 01:
In particular, independent claim one has been amended to recite the one or more thermal spacers thermally isolating said inner duct liner from said outer casing.

[00:11:11] Speaker 01:
And then if we look at the next paragraph, second sentence, it says the term thermal in the context of the subject application means and refers to specific thermal properties, namely thermally isolating.

[00:11:22] Speaker 01:
So the spacer itself has to have this thermally isolating capability about it, not all the other bells and whistles that might be included

[00:11:30] Speaker 01:
when the spacer is deployed.

[00:11:33] Speaker 01:
The problem we have is the judge didn't even need to get into that inquiry below because she made it clear that she didn't... Okay, I just got to try and figure it.

[00:11:40] Speaker 03:
So some of what you're arguing now seems different than I understood it in your brief, and I'm not saying it's a bad argument.

[00:11:47] Speaker 03:
I'm just trying to, in my mind, separate buckets, claim construction and infringement.

[00:11:52] Speaker 03:
Where in your brief did you make the argument that her claim construction below sweeps in the insulation as part of

[00:12:01] Speaker 03:
the thermally isolating spacer in order to, because that's what I understand.

[00:12:07] Speaker 03:
What I understand you're saying now is the only thing that does the thermal isolation now is the insulation.

[00:12:14] Speaker 01:
If I said that, your honor, I didn't mean to.

[00:12:16] Speaker 01:
What I said was we don't know what's doing the isolation.

[00:12:19] Speaker 01:
The one thing we do know is it didn't matter for purposes of her claim construction.

[00:12:24] Speaker 01:
All she cared about was that thermal isolation resulted.

[00:12:27] Speaker 01:
And it doesn't much matter how, because she said that the spacers themselves did not have to have any thermal properties.

[00:12:35] Speaker 05:
But going back to what the chief was pointing to, the courts claim construction of thermal spacers thermally isolating.

[00:12:42] Speaker 05:
It says components that maintain a space between the inner duct.

[00:12:47] Speaker 05:
What is that talking about that limit the amount of heat?

[00:12:50] Speaker 05:
They're talking about the spacers, right?

[00:12:52] Speaker 05:
Yes.

[00:12:52] Speaker 05:
What the spacers have to do.

[00:12:54] Speaker 01:
Yes.

[00:12:55] Speaker 01:
But the problem is, even in that circumstance, if you have sufficient space, there's going to be thermal isolation without any regard to whether the spacers themselves have any thermal characteristics.

[00:13:05] Speaker 05:
We can have two things that- But that's the issue.

[00:13:09] Speaker 05:
You're asking us to say that the spacers themselves have to have thermal characteristics.

[00:13:14] Speaker 05:
And the question is, is that true?

[00:13:17] Speaker 05:
Or can spacing and other things done the way the spacer is used?

[00:13:22] Speaker 05:
Or the way it operates within the apparatus, if it satisfies the function of thermally isolating, is that sufficient to make it a space?

[00:13:31] Speaker 01:
But then why have the term thermal in there at all, Your Honor?

[00:13:33] Speaker 01:
Because anything given sufficient space is capable of thermal isolation.

[00:13:38] Speaker 01:
So if that's true.

[00:13:40] Speaker 01:
then why modify the term spacer with thermal?

[00:13:44] Speaker 05:
So you're saying the word that's superfluous is space, thermal space.

[00:13:48] Speaker 05:
Thermal modifying spacer.

[00:13:50] Speaker 05:
They could have said a spacer that does thermal isolation.

[00:13:53] Speaker 01:
Correct, Judge.

[00:13:54] Speaker 05:
And that would have satisfied.

[00:13:55] Speaker 01:
That's right, Judge.

[00:13:56] Speaker 01:
As a matter of fact, it's pretty clear from the way she decided the case below that all you have to have at the end of the day is thermal isolation and a spacer.

[00:14:04] Speaker 01:
Assume you have those two things.

[00:14:06] Speaker 01:
That's all you need.

[00:14:07] Speaker 05:
Well, yeah, so just to reiterate, the question is whether thermal spacer means a spacer that performs a thermal function or whether it has to have its own conductivity or something.

[00:14:22] Speaker 05:
There has to be something unique to the spacer.

[00:14:24] Speaker 01:
Something about the spacer that in and of itself makes it capable of thermally isolating componentry.

[00:14:31] Speaker 01:
If it isn't able to do that, if it needs help,

[00:14:35] Speaker 01:
then it's not a thermal spacer.

[00:14:36] Speaker 01:
What do you mean by needs help?

[00:14:38] Speaker 01:
Something else has to be responsible for the thermal isolation.

[00:14:41] Speaker 01:
Perhaps in this circumstance, the insulation, perhaps the distance, any myriad number of things that might result in the prevention of the transfer of heat.

[00:14:52] Speaker 02:
So if it's not poles and it's not

[00:14:56] Speaker 02:
state uh... it all seems to me to collapse into an argument that it has to be made out of something specific but you're saying that's not your argument i'm just trying to think of an example of what it could be besides material asbestos it could be it could be pure insulation material right right but that's an argument that it has to be a certain material you're saying that's not what it means perhaps judge but again that sounds like a to me that sounds like a part two of infringement test issue the question though is she never got to the point is she never got there because she didn't have to

[00:15:25] Speaker 01:
All she had to find was there's a spacer, there's thermal isolation, that's it.

[00:15:31] Speaker 05:
Whether the spacer... But does the shape of the spacer result in it just thermally isolating?

[00:15:39] Speaker 05:
It could, and that would be... Okay, and you agree that's a thermal spacer?

[00:15:43] Speaker 01:
If the shape is somehow connotes or results in thermal characteristics for the spacer itself, which will be a fine argument when the case goes back down.

[00:15:54] Speaker 01:
Because maybe that is their argument, that maybe it's the shape of this thing that makes it a thermal spacer.

[00:15:59] Speaker 01:
But the judge didn't get there because she didn't have to.

[00:16:03] Speaker 03:
OK, so I want to try one last time, because we're out of time.

[00:16:06] Speaker 03:
But I want to try and understand, the only place that I find this argument of yours about the, so first up, many places you want to call, you say the void can't be part of the spacer.

[00:16:19] Speaker 03:
Or at least that's what I understood your argument to be.

[00:16:22] Speaker 01:
Right.

[00:16:22] Speaker 03:
I don't understand that.

[00:16:24] Speaker 03:
I thought we agreed the holes can be part of the space.

[00:16:26] Speaker 01:
The void is the space between componentry according to the claim.

[00:16:31] Speaker 01:
So there may be a void that's sufficiently big between the components so that there won't be heat transfer.

[00:16:40] Speaker 01:
But that's a separate claim limitation.

[00:16:43] Speaker 03:
Oh, OK.

[00:16:44] Speaker 03:
Well, then where is the insulation?

[00:16:48] Speaker 03:
Is the insulation in the holes, or is the insulation in the void, or is the insulation in both?

[00:16:52] Speaker 01:
If you look at, so the best illustration of that, you'll probably find.

[00:16:56] Speaker 03:
It's 16 year brief.

[00:16:57] Speaker 01:
2166, I think that's what we cite.

[00:16:59] Speaker 03:
The 16th word brief is what I was looking at.

[00:17:01] Speaker 03:
What do you want me to look at?

[00:17:02] Speaker 01:
Appendix 2166, Your Honor.

[00:17:17] Speaker 01:
So this is from... Right, that's the same thing as page 16 of the... Okay.

[00:17:21] Speaker 01:
Sorry, Your Honor.

[00:17:22] Speaker 01:
This is from Appellee's pleadings and... Actually, this is from their expert's brief, expert's report.

[00:17:31] Speaker 01:
And here we have highlighted in green what he characterized as the spacer, and we see how the insulation material is deployed.

[00:17:39] Speaker 01:
But again, the insulation material is a separate claim limitation.

[00:17:43] Speaker 01:
By virtue of the way the claim should be construed, the insulation wouldn't be part of the spacer.

[00:17:48] Speaker 05:
But would this satisfy the claim limitation in your view?

[00:17:51] Speaker 05:
Is this a thermal spacer?

[00:17:53] Speaker 01:
No, Your Honor, because there's no evidence that the spacer itself has thermal characteristics.

[00:18:00] Speaker 05:
Again, we're back to characteristics, as Judge Hall spoke of.

[00:18:03] Speaker 05:
What characteristics are those?

[00:18:05] Speaker 01:
Something that is capable of doing thermal isolation by itself.

[00:18:10] Speaker 01:
something that will make sure that there is no heat transfer between the components.

[00:18:15] Speaker 01:
They're supposed to be thermally isolated.

[00:18:17] Speaker 05:
Well, if it's structured in such a way that there are holes, that can serve that purpose?

[00:18:25] Speaker 01:
It can, but there's no evidence that this is such a thing, because the judge didn't need to get there below.

[00:18:31] Speaker 01:
There wasn't that inquiry at all.

[00:18:34] Speaker 01:
There's nothing below that says, because of the way these holes are configured,

[00:18:39] Speaker 01:
that the spacer by itself has thermal characteristics.

[00:18:44] Speaker 01:
The judge didn't need to reach that, because she said it doesn't matter.

[00:18:49] Speaker 02:
I thought you didn't reach it because you stipulated to infringement.

[00:18:53] Speaker 01:
There were cross motions for infringement, Your Honor.

[00:18:57] Speaker 03:
You said a minute ago, and maybe I misunderstood you, that insulation is a separate claim limitation, so the insulation can't be part of the thermal spacer.

[00:19:04] Speaker 03:
I can't find it.

[00:19:05] Speaker 03:
Where is insulation a claim limitation in claim one?

[00:19:08] Speaker 01:
Your Honor.

[00:19:09] Speaker 01:
Bear with me for just a minute.

[00:19:26] Speaker 01:
If you look at column 8 on appendix 125, line 54.

[00:19:33] Speaker 01:
I'm sorry.

[00:19:36] Speaker 01:
Can you give a second?

[00:19:37] Speaker 01:
Sorry.

[00:19:38] Speaker 01:
Appendix 125.

[00:19:41] Speaker 01:
You just refer to the pattern.

[00:19:42] Speaker 01:
Yes.

[00:19:43] Speaker 01:
Column 8.

[00:19:46] Speaker 03:
Column what?

[00:19:47] Speaker 01:
54.

[00:19:47] Speaker 03:
That's the void receiving insulation material.

[00:19:54] Speaker 01:
Yes.

[00:19:56] Speaker 03:
I thought you just said the holes are not the void.

[00:20:00] Speaker 01:
Well, I mean, Your Honor, I guess the point is that there is here the concept of insulation being something separate from the structure that's taught.

[00:20:11] Speaker 01:
or that's claimed.

[00:20:14] Speaker 03:
OK.

[00:20:14] Speaker 03:
OK.

[00:20:14] Speaker 03:
Let's hear from the opposing counsel.

[00:20:16] Speaker 01:
Thank you, Your Honor.

[00:20:26] Speaker 00:
Good morning, Your Honors.

[00:20:27] Speaker 00:
Chad Neidegger with my partner, Ryan Morris.

[00:20:30] Speaker 00:
I'm working with Neidegger representing the Appellee Dura System Barrier Unit.

[00:20:34] Speaker 00:
May it please the court.

[00:20:36] Speaker 00:
A lot of confusion has been sown.

[00:20:38] Speaker 00:
A lot of arguments have shifted from the briefs to this morning.

[00:20:42] Speaker 00:
And my hope is to be able to clarify the confusion that's been propagated here.

[00:20:48] Speaker 00:
First, we'll talk about the voids.

[00:20:50] Speaker 00:
In the briefing, the appellant argued that the perforations or the holes in the spacer are voids.

[00:21:00] Speaker 00:
And then it played a semantical game in the briefing where it said, those voids can't be part of the spacer because they're separately claimed.

[00:21:07] Speaker 00:
That's where we start with the first point of confusion.

[00:21:10] Speaker 03:
Where did they call the holes voids in their briefing, since you said that?

[00:21:13] Speaker 03:
Where can I find that?

[00:21:15] Speaker 00:
Ms.

[00:21:17] Speaker 00:
Morris, could you grab that quickly, please?

[00:21:19] Speaker 00:
I'll return to that in just a moment.

[00:21:21] Speaker 00:
OK.

[00:21:21] Speaker 00:
But the void in the claim is the space all along the inner duct liner and all along the outer casing.

[00:21:29] Speaker 00:
So the void runs the length of the entire module of duct work.

[00:21:34] Speaker 00:
That's the void in the claim language, and that's clear.

[00:21:37] Speaker 00:
And so when they talk about the insulation fills the void, that's the void.

[00:21:43] Speaker 00:
The insulation runs all along the entire length of the duct module, which is necessary to insulate the outer casing from the inner duct liner so that heat can't reach that barrier and cause a fire on one side or the other.

[00:21:57] Speaker 00:
If you have a fire on the inside of the duct, the heat can't get through the wall to start a fire on the outside of the duct.

[00:22:04] Speaker 00:
That's the purpose of this invention.

[00:22:06] Speaker 05:
Well, can you just go to the court's claim construction on thermal spacers?

[00:22:12] Speaker 05:
What do those words mean?

[00:22:14] Speaker 05:
Components that maintain a space between the inner duct liner and outer casing that limit the amount of heat conducted through the components.

[00:22:23] Speaker 05:
Are they talking about the components of the spacer?

[00:22:26] Speaker 05:
So the components.

[00:22:30] Speaker 05:
So that they do not create fall points on the inner duct line.

[00:22:34] Speaker 05:
Describe this to what what does this tell us about the spacer?

[00:22:38] Speaker 00:
Yes, so the thermal spacer has to perform two functions it has to perform the spacing function and it has to perform the thermal function and That's exactly that thing.

[00:22:49] Speaker 03:
He told enough you agree.

[00:22:50] Speaker 03:
That's a thermal spacer absolutely Absolutely, and and so how does it perform the thermally isolating function?

[00:22:58] Speaker 00:
So the way it performs a thermally isolating function is best described in their own patent application that describes how it does that.

[00:23:07] Speaker 00:
And this is in their own patent application where they explain.

[00:23:12] Speaker 00:
The spacer 106 includes one or more perforations one third.

[00:23:15] Speaker 03:
I need a page number.

[00:23:17] Speaker 00:
Yep, absolutely.

[00:23:19] Speaker 00:
This is at appendix 2167 to 68, and it's citing to appendix

[00:23:26] Speaker 00:
2324 at paragraphs 46 and 47.

[00:23:28] Speaker 04:
What page do you want me to go to?

[00:23:30] Speaker 00:
Go to page 2324.

[00:23:31] Speaker 00:
Page 2324 at paragraphs 46 and 47.

[00:23:36] Speaker 05:
Now, this is their application for their product.

[00:23:39] Speaker 00:
This is their patent application.

[00:23:41] Speaker 03:
What does this have to do with anything?

[00:23:43] Speaker 00:
This has to do with how infringement is shown, how the spacer the council held up satisfies the court's construction for summary judgment of infringement.

[00:23:55] Speaker 00:
This is evidence that their spacer performs the thermal function.

[00:24:00] Speaker 03:
I'm looking at their spacer.

[00:24:01] Speaker 00:
Yes.

[00:24:02] Speaker 03:
So their spacer is right there.

[00:24:03] Speaker 00:
Yes.

[00:24:04] Speaker 03:
How does it perform a thermally isolating function?

[00:24:07] Speaker 00:
Yep.

[00:24:08] Speaker 00:
And that's explained.

[00:24:09] Speaker 00:
I'll read it to you right here.

[00:24:11] Speaker 00:
So the perforations create metal strips 132 between the perforations.

[00:24:16] Speaker 04:
Where are you?

[00:24:16] Speaker 04:
What paragraph?

[00:24:18] Speaker 00:
This is at

[00:24:23] Speaker 00:
Paragraph 46.

[00:24:24] Speaker 00:
OK.

[00:24:27] Speaker 04:
Figure 4.

[00:24:53] Speaker 03:
I really don't understand how you think their patent application informs the construction to be given to a term in your patent.

[00:25:03] Speaker 00:
We don't.

[00:25:04] Speaker 00:
That's additional confusion.

[00:25:06] Speaker 03:
But you're sowing that confusion right now by trying to take me to their patent application as somehow evidence of how I should construe and understand your patent.

[00:25:14] Speaker 00:
No.

[00:25:15] Speaker 00:
I'm sorry, Your Honor.

[00:25:16] Speaker 00:
We're having a miscommunication apparently.

[00:25:18] Speaker 00:
I was responding to your question on how their spacer performs an isolating function.

[00:25:23] Speaker 00:
That's not a construction issue.

[00:25:24] Speaker 00:
That's an infringement issue, because we're talking about their accused product.

[00:25:28] Speaker 00:
If you want me to talk about construction, I'm happy to do so.

[00:25:31] Speaker 00:
But I was responding to your question and asked how their product performs the isolating function.

[00:25:37] Speaker 03:
OK.

[00:25:37] Speaker 03:
Do you agree that the district court found the thermal spacer must thermally isolate?

[00:25:44] Speaker 00:
Absolutely.

[00:25:45] Speaker 05:
The construction, it's- Well, can you go back to my question about what these words mean and how they describe how the thermal spacer performs this function?

[00:25:56] Speaker 00:
Absolutely.

[00:25:57] Speaker 00:
OK.

[00:25:57] Speaker 00:
So, Your Honor, the components are the physical structure of the spacer.

[00:26:01] Speaker 00:
The spacer has to have a structure, and that's what the court calls a component.

[00:26:06] Speaker 05:
OK.

[00:26:06] Speaker 00:
And that component must perform the two functions recited in the claim construction.

[00:26:11] Speaker 00:
It must maintain a space between the inner duct liner and the outer casing.

[00:26:15] Speaker 00:
OK, so that's the first thing that the component must do.

[00:26:18] Speaker 00:
The second thing that the component must do, it must limit the transfer of heat between the inner duct liner and the outer casing through the component.

[00:26:27] Speaker 00:
That's the thermally isolating component.

[00:26:28] Speaker 05:
And it doesn't tell us how it does that, just as they must do that.

[00:26:32] Speaker 00:
No.

[00:26:32] Speaker 00:
But see, that's where we get to actually what is the rub in this case.

[00:26:36] Speaker 00:
See, the appellant argues that it must do that one and only one way.

[00:26:40] Speaker 00:
And that is by having the thermal spacer, the component, made of a material

[00:26:45] Speaker 00:
with a low thermal conductivity property value.

[00:26:50] Speaker 02:
So he says he's not arguing that, but your view is, which is my view, that is what he's arguing.

[00:26:55] Speaker 00:
That's exactly what they're arguing.

[00:26:56] Speaker 05:
And what are you arguing?

[00:26:57] Speaker 05:
What are the limitations you are arguing that make it a thermal space?

[00:27:01] Speaker 00:
So we argue that it has to limit, just like the court's construction says, it has to limit the conduction of heat through the component.

[00:27:09] Speaker 00:
And that can be done any one of a number of ways.

[00:27:11] Speaker 05:
Give us a few examples.

[00:27:13] Speaker 05:
OK, how do you do that without having anything to do with the properties of the space?

[00:27:18] Speaker 00:
The perfect example is the thermal spacer that was shown to you today.

[00:27:22] Speaker 00:
That thermal spacer is shaped in a special way.

[00:27:26] Speaker 00:
It's shaped in a way so that it limits the conductivity of heat from one side to the other.

[00:27:33] Speaker 00:
And it does that because the perforations, and this is what I was going to read to you from their patent application, because this is what their patent application explains.

[00:27:40] Speaker 00:
The perforations create these thin metal strips, and those thin metal strips act as a heat sink.

[00:27:46] Speaker 00:
Because those thin metal strips act as a heat sink, it thermally isolates.

[00:27:51] Speaker 00:
It prevents the conduction of heat from one side of the spacer to the other side of the spacer.

[00:27:55] Speaker 00:
Without those holes, you wouldn't have those heat sinks.

[00:28:00] Speaker 00:
And so the heat would be able to transfer from one side to the other, creating fail points during fire testing.

[00:28:07] Speaker 00:
And so that's one example.

[00:28:08] Speaker 00:
Another example would be to use a coil.

[00:28:11] Speaker 00:
so for example if the spacer you could have a spacer with just a just a straight rod well if you use a one inch copper rod as your spacer that would not thermally isolate the heat would be able to go through that copper rod and get to the other side and cause fail points but if instead you took

[00:28:32] Speaker 00:
And you made that a coil.

[00:28:33] Speaker 00:
And so instead of having to traverse two inches of distance, the heat would have to travel all the way around that coil and travel essentially along two feet of the component.

[00:28:45] Speaker 05:
Are there any embodiments in the specification for the patent and suit that describe

[00:28:52] Speaker 05:
What kinds of the things you're describing to us now about what might satisfy the limitation of a thermal spacer?

[00:29:01] Speaker 00:
So the specification does not provide specific examples of how the thermal isolating must occur.

[00:29:09] Speaker 00:
It just, that's just new.

[00:29:11] Speaker 05:
No, I want examples of what the thermal spacer is, whether it's just so we know.

[00:29:17] Speaker 05:
It's a different shape, spacers that don't have just the conductivity.

[00:29:24] Speaker 00:
Well, I mean, in the patent, there are numerous figures where the thermal spacer is identified.

[00:29:37] Speaker 03:
What figure would you like us to look at?

[00:29:45] Speaker 00:
I don't have the 120.

[00:29:50] Speaker 00:
So for example, looking at appendix page 116, figure four.

[00:30:07] Speaker 00:
I'm sorry?

[00:30:09] Speaker 04:
Figure four?

[00:30:11] Speaker 00:
Yes, that's figure four.

[00:30:13] Speaker 00:
You see there are spacers on the corners.

[00:30:19] Speaker 00:
I believe they are labeled section 422.

[00:30:22] Speaker 00:
If you turn the page to figure 5, the thermal spacer is 420 is the proper number.

[00:30:29] Speaker 00:
If you look at figure 5B.

[00:30:31] Speaker 03:
Well, wait, element 420, you're saying that's the thermal spacer?

[00:30:39] Speaker 00:
Yes, element 420 is the thermal spacer.

[00:30:41] Speaker 03:
OK, well, in your description of figure 4, which is at column 6, line 54, can you go there with me?

[00:30:48] Speaker 00:
One moment, please.

[00:30:51] Speaker 00:
You said column 6.

[00:30:53] Speaker 03:
This is your description of column 4 in your path.

[00:30:56] Speaker 03:
Column 6, line 54.

[00:30:58] Speaker 00:
Yes.

[00:30:59] Speaker 03:
According to another aspect, and as depicted in figure 4 and 5A, the thermal spacers 420 are recessed into the insulation material

[00:31:08] Speaker 03:
in order to maintain or provide a flat insulation face indicated by reference 422.

[00:31:17] Speaker 03:
So what does that mean?

[00:31:19] Speaker 03:
You've got the spacer recessed into insulation, which is 422.

[00:31:24] Speaker 03:
422 is the insulation, right?

[00:31:27] Speaker 00:
Yes.

[00:31:28] Speaker 00:
So the spacers can be recessed into the insulation.

[00:31:33] Speaker 00:
But the spacers still have to... What can happen, Your Honor, is when you mechanically

[00:31:39] Speaker 00:
attached to components, that mechanical attachment can become a thermal bridge for heat to transfer from one side to the other and get through the insulation.

[00:31:50] Speaker 00:
And that's why the thermal spacer must also be thermally isolated.

[00:31:54] Speaker 00:
So even if the thermal spacer 420 is recessed into the insulation, the thermal spacer itself still has to be thermally isolating so that it doesn't create a thermal bridge for heat to get from one side to the other.

[00:32:08] Speaker 05:
So is there anything unique?

[00:32:12] Speaker 05:
So this could be, in Figure 4, a generic spacer.

[00:32:16] Speaker 05:
And because of where it's positioned or how it's positioned, it performs the function of thermally insulating?

[00:32:24] Speaker 00:
No, Your Honor.

[00:32:25] Speaker 05:
So what is special about?

[00:32:27] Speaker 05:
What is it about Figure 4, the spacer in Figure 4, that makes it thermally isolating?

[00:32:38] Speaker 00:
That's not expressly explained.

[00:32:40] Speaker 00:
The thermal function of that specific spacer in figure four is not expressly explained or addressed in the specification of the patent.

[00:32:49] Speaker 00:
But as found by the court and the expert testimony,

[00:32:53] Speaker 00:
A person of skill in the art understands that a thermal spacer performs a thermal function.

[00:32:58] Speaker 00:
And this was explained.

[00:32:59] Speaker 03:
OK, this is getting really confusing for me.

[00:33:01] Speaker 03:
And honestly, you're not helping yourself at all here.

[00:33:04] Speaker 03:
So if, I mean, just pro-point question is exactly my question, which is, what about 420 lets us know it is performing a thermally isolating function apart from its location in the insulation as a heat sink?

[00:33:22] Speaker 03:
which would be true of any spacer.

[00:33:25] Speaker 03:
Any spacer, generic spacer, if it's only the location, then any generic spacer could suffice.

[00:33:34] Speaker 00:
No, Your Honor.

[00:33:34] Speaker 00:
The location has nothing to do with it.

[00:33:37] Speaker 00:
The location, if you turn to the next page in figure 5b, you can see that the spacer is located at the very end.

[00:33:49] Speaker 00:
It's not embedded within the insulation.

[00:33:53] Speaker 00:
You see 420 in figure 5B.

[00:33:56] Speaker 00:
It's at the very end of the module, and it's not embedded in the insulation.

[00:34:00] Speaker 00:
The fact that it's embedded in insulation doesn't make a spacer perform a thermal function or not.

[00:34:07] Speaker 05:
What makes it perform a thermal function?

[00:34:10] Speaker 00:
And that's what I was talking about earlier.

[00:34:12] Speaker 00:
It can be the material that it's made out of.

[00:34:15] Speaker 00:
It can be made of a material with low thermal conductivity.

[00:34:18] Speaker 00:
It can be the shape of the material.

[00:34:20] Speaker 00:
And that's what is the case with the thermal spacer of the defendant's product.

[00:34:26] Speaker 00:
It's specifically shaped so that it creates a heat sink.

[00:34:29] Speaker 05:
Do we find any support for that in the specification?

[00:34:32] Speaker 05:
Do they have any examples?

[00:34:34] Speaker 05:
Mention the words material, shape.

[00:34:39] Speaker 05:
I mean, this may be a written description problem, but anything in the specification that describes the limits of what a thermal spacer is.

[00:34:52] Speaker 00:
The specification does not go into detail to describe.

[00:34:56] Speaker 05:
I don't care about detail.

[00:34:57] Speaker 05:
I want something.

[00:34:58] Speaker 05:
Give me two words.

[00:35:00] Speaker 05:
I don't need detail.

[00:35:01] Speaker 00:
Well, we go back to the fact that it's a thermal spacer.

[00:35:07] Speaker 00:
The fact that it is a thermal spacer means that it has to perform a thermal function.

[00:35:11] Speaker 00:
Then we go back to the claim language.

[00:35:12] Speaker 00:
The claim language defines the scope of the invention.

[00:35:15] Speaker 00:
And the claim language expressly recites thermally isolating the inner duct liner from the outer casing.

[00:35:22] Speaker 05:
So if you took out the word spacer, the word thermal from spacer, and if the claim just read a spacer that performs the thermally isolating function, same?

[00:35:38] Speaker 05:
Is thermal doing any work?

[00:35:40] Speaker 05:
The thermal that modifies spacer.

[00:35:43] Speaker 05:
Is it doing any work in that claim?

[00:35:46] Speaker 00:
Under your lead?

[00:35:49] Speaker 00:
And this gets to judge more to your comment.

[00:35:51] Speaker 05:
You can't answer yes or no?

[00:35:53] Speaker 00:
Yeah, I can.

[00:35:54] Speaker 00:
Yes, Your Honor.

[00:35:55] Speaker 00:
Because thermal spacer identifies a structure.

[00:35:59] Speaker 00:
And the fact that it's a thermal spacer,

[00:36:05] Speaker 00:
means that that structure must perform at least two functions.

[00:36:10] Speaker 00:
And the applicant believes that those two words were sufficient to indicate that it performed both of those two functions.

[00:36:16] Speaker 00:
And this goes back to Judge Warder and the prosecution.

[00:36:18] Speaker 05:
So it's a generic spacer performing a thermal isolating function.

[00:36:22] Speaker 00:
It has to space, and it has to perform a thermal function.

[00:36:25] Speaker 05:
OK, but look at the claim language.

[00:36:28] Speaker 05:
If you take the word thermal out of space before spacer, and you just have the rest of the claim language,

[00:36:35] Speaker 05:
Any difference?

[00:36:37] Speaker 05:
Wouldn't it mean exactly what you're saying?

[00:36:40] Speaker 05:
If you say, one or more spacers configured to maintain a duct line, and blah, blah, blah, and one or more spacers thermally isolating the inner duct.

[00:36:50] Speaker 05:
Does thermalism?

[00:36:51] Speaker 00:
Your Honor, I would agree that that would not change the scope of the claim.

[00:36:54] Speaker 00:
And the reason why is because during prosecution, as Judge Moore noted, the applicant had thermal spacer without the thermally isolating phrase.

[00:37:02] Speaker 00:
And the examiner said, well,

[00:37:05] Speaker 00:
That doesn't have to perform any thermal function at all.

[00:37:07] Speaker 00:
Any spacer will satisfy that language.

[00:37:10] Speaker 00:
And as Judge Moore said, the applicant probably scratched his head and said, well, that doesn't make any sense.

[00:37:15] Speaker 00:
Because how is that a thermal spacer if it has no thermal functionality?

[00:37:18] Speaker 00:
So the applicant then explained why, in the context of the patent, thermal means and refers to, this is quoting from appendix page 438, means and refers to thermally isolate.

[00:37:30] Speaker 00:
But purely functional.

[00:37:32] Speaker 05:
It's purely functional claim limitation.

[00:37:37] Speaker 05:
And it only has to do with the performance of a spacer that thermally isolates.

[00:37:43] Speaker 05:
Right.

[00:37:44] Speaker 05:
That's no different than the claim line.

[00:37:46] Speaker 05:
So we're in the specification.

[00:37:48] Speaker 05:
Does it tell us what the properties are of the spacer that performs the function of thermally isolating?

[00:37:57] Speaker 00:
The specification does not describe how thermal isolation is achieved.

[00:38:05] Speaker 00:
A person of ordinary skill in the art would understand that.

[00:38:09] Speaker 05:
They would understand what?

[00:38:10] Speaker 05:
How it's achieved or that it doesn't tell us how it's achieved?

[00:38:14] Speaker 00:
A person of ordinary skill in the art knows how to create a spacer that achieves thermal isolation.

[00:38:19] Speaker 00:
A person of skill in the art knows that it can be done a number of different ways, through the material property, through the shape, through a number of different ways.

[00:38:27] Speaker 05:
Did you have testimony in the record?

[00:38:29] Speaker 00:
Yes, it is, Your Honor.

[00:38:32] Speaker 00:
That's at Appendix, page 1833 to 1834.

[00:38:39] Speaker 00:
at appendix page 1833 to 1834.

[00:38:40] Speaker 00:
This is the expert witness, Mr. Creamy.

[00:38:44] Speaker 00:
And he goes, he explains that.

[00:38:46] Speaker 00:
And he uses the coil example that I was talking about earlier.

[00:38:51] Speaker 04:
OK.

[00:38:51] Speaker 04:
Which paragraph?

[00:38:52] Speaker 04:
Paragraph 45?

[00:38:56] Speaker 00:
So.

[00:39:18] Speaker 00:
1833, 1834, paragraphs 45 and 46.

[00:39:36] Speaker 00:
Okay, so in paragraph 46, for example, Fosita would understand that he, she could affect the transfer of heat through the spacer by selecting a different material, having thermal conductivity values, as Mr. Cheek opines.

[00:39:48] Speaker 00:
The lower the thermal conductivity value of a material, the slower the heat moves or is conducted through the material.

[00:39:53] Speaker 00:
Aposita would also understand that she-he could affect the transfer of heat through the spacer by altering the shape of the spacer.

[00:40:00] Speaker 00:
For example, heat would transfer through a spacer that has perforations more slowly than it would through a spacer made of the same material and with the same geometry, but without perforations.

[00:40:10] Speaker 00:
He goes on to provide another example.

[00:40:12] Speaker 00:
Aposita would also understand that she-he could affect the transfer of heat through the spacer by increasing the length of the path.

[00:40:17] Speaker 00:
which the heat must travel along the spacer to reach the other side.

[00:40:20] Speaker 00:
For example, it would take heat longer to travel through a spacer in the shape of a coil than it would through a spacer made of the same material in the shape of a straight line.

[00:40:29] Speaker 00:
So a person of skill in the art understands that this thermally isolating function can be achieved a lot of different ways.

[00:40:36] Speaker 00:
And what the appellate is trying to do is they're trying to graft in a limitation.

[00:40:39] Speaker 00:
This is really a disclaimer case.

[00:40:41] Speaker 00:
They're arguing that the applicant in prosecution disclaimed

[00:40:46] Speaker 00:
ways of thermal isolation other than a material property of low thermal conductivity Okay, counselor.

[00:40:53] Speaker 03:
We have your argument time is up.

[00:40:54] Speaker 03:
Thank you very much I'm going to store two minutes of a bottle time, please

[00:41:12] Speaker 01:
Thank you, Your Honor.

[00:41:12] Speaker 01:
Let's start with paragraph 45 that the opposing counsel is just referring to.

[00:41:17] Speaker 01:
All of these things indicate that the spacer cannot be generic.

[00:41:20] Speaker 01:
There has to be something done to it, or it has to be made out of a material that allows it to perform the thermal functions.

[00:41:26] Speaker 01:
Or a certain shape.

[00:41:27] Speaker 01:
Or a certain shape.

[00:41:28] Speaker 01:
That's right.

[00:41:29] Speaker 03:
But my problem is, Counsel, that your whole argument, I understood in your brief, to amount to the holes can't be part of the spacer.

[00:41:37] Speaker 03:
You say that on page 18, in short, the holes or voids defined by the accused spacers are not properly considered part of the spacers themselves.

[00:41:44] Speaker 03:
I understood your entire argument in this case to be one of claim construction.

[00:41:47] Speaker 03:
In fact, earlier you disavow the idea that you're disputing the district court's finding of infringement and you make it crystal clear that you're only on claim construction and you're only that the holes in our spacer

[00:41:58] Speaker 03:
cannot be considered part of the spacer.

[00:42:00] Speaker 03:
All of the arguments you've made today, which by the way I find somewhat persuasive but somewhat confusing, seem to be about whether your particular spacer made out of metal, which has insulation that goes in between the spacer and the duct and in the holes, what is performing the thermally isolating

[00:42:17] Speaker 03:
That's infringement.

[00:42:19] Speaker 03:
You disavowed that argument.

[00:42:21] Speaker 03:
If you lose today, that's why.

[00:42:23] Speaker 03:
It's because you made this case all about claim construction, and you repeatedly told us the holes in your spacer are not part of the spacer.

[00:42:31] Speaker 03:
And that's all I focused on, because that's what you told me is the only thing you're arguing on appeal.

[00:42:35] Speaker 03:
And then you came in in this oral argument.

[00:42:36] Speaker 03:
I'm going to restore your two minutes, because I'm using all of it.

[00:42:38] Speaker 03:
You came in this oral argument, and you went a completely different direction.

[00:42:41] Speaker 03:
And it really confused me.

[00:42:42] Speaker 03:
And maybe it's persuasive.

[00:42:44] Speaker 03:
Maybe it's not.

[00:42:45] Speaker 03:
But it's not the way you briefed this case.

[00:42:47] Speaker 01:
And we made it very clear in our briefing that the judge's construction allowed generic spacers to be covered by the claims.

[00:42:55] Speaker 01:
It didn't even matter what was part of our spacer and what was not below.

[00:43:00] Speaker 01:
And I want to read this from their summary judgment pleading, appendix 2171.

[00:43:05] Speaker 01:
They start off, and this is the very last sentence on page 2171.

[00:43:13] Speaker 01:
Defendants argue that the thermal spacers of the accused products do not satisfy the thermal spacers thermally isolating limitation because its thermal spacers increase the amount of heat transfer between the inner liner and the outer casing.

[00:43:28] Speaker 01:
They go on on the next page.

[00:43:29] Speaker 01:
Defendants arrive at this conclusion by comparing the amount of heat transferred in the absence of the thermal spacers to the amount of heat transferred in the presence of the thermal spacers.

[00:43:39] Speaker 01:
The standard of thermal isolation that defendants apply to argue non-infringement is that thermal spacers must not allow more heat to be transferred between the inner duct liner and the outer casing than is transferred between those components absent the thermal spacers.

[00:43:54] Speaker 01:
This is legal error because defendants do not compare the thermal spacers of the accused products that... Am I right that everything you're reading from is the summary judgment of infringement and not the claim construction?

[00:44:04] Speaker 01:
Yes, Your Honor, but what they're telling you is... You didn't appeal it.

[00:44:08] Speaker 01:
Your Honor.

[00:44:09] Speaker 01:
What they're saying is that they're allowed to make that argument because the claim construction issued by the district court, it didn't matter.

[00:44:18] Speaker 01:
whether the spacer in question had thermal characteristics or not.

[00:44:22] Speaker 01:
They're basically acknowledging that.

[00:44:24] Speaker 01:
We're saying the judge was wrong in saying that below, that the thermal spacer has to have thermal characteristics.

[00:44:30] Speaker 01:
And if you can make the argument that the thermal spacer actually increases the transference of heat under her claim construction, that shows the claim construction is wrong.

[00:44:42] Speaker 03:
OK.

[00:44:43] Speaker 03:
Thank you, counsel.

[00:44:44] Speaker 03:
We thank both counsels in this case to take another submission.