[00:00:00] Speaker 03:
Our first case is HR Robotics, et al.

[00:00:04] Speaker 03:
versus the ITC and OPEX as intervener, 2024-1193.

[00:00:10] Speaker 03:
Mr. Nadek.

[00:00:11] Speaker 03:
Thank you, Your Honor.

[00:00:16] Speaker 02:
My name is Ed Nadek, and I'm representing the Appellants, HC Robotics, and Invada LLC.

[00:00:23] Speaker 02:
The ITC below.

[00:00:27] Speaker 02:
adopted the infringement determination of the chief ALJ, who made three errors of claim interpretation.

[00:00:33] Speaker 02:
The first error was in the 194 patent concerning the claim limitation track is positioned so that a delivery vehicle can move between the first series of columns and second series of columns.

[00:00:47] Speaker 02:
And then the second and third issues of claim interpretation

[00:00:51] Speaker 02:
concerned the track limitation of the 194 patent and the drive system limitation of the 505 patent.

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And the ALJ erred in construing both of those limitations to encompass the use of an elevator or lift to carry a stationary vehicle.

[00:01:10] Speaker 02:
I'd like to start with the track positioning requirement of claim one and the 194 pen.

[00:01:18] Speaker 02:
The ordinary meaning of between is in the space separating.

[00:01:22] Speaker 02:
So one would think the ordinary meaning of the claim delivery vehicles can move between

[00:01:30] Speaker 02:
the two series of columns is in the space separating.

[00:01:34] Speaker 02:
And ALJ erred in interpreting that term so that the vehicles only needed to travel within two imaginary vertical planes that extend laterally beyond the columns.

[00:01:45] Speaker 04:
Well, if I went to the Nationals game last night and I told you I sat between home plate and first base, you wouldn't imagine that I was standing in the field.

[00:01:55] Speaker 04:
between those two, right?

[00:01:57] Speaker 02:
Between first base and home plate.

[00:02:04] Speaker 02:
That you're standing in the field?

[00:02:06] Speaker 04:
Yeah, you wouldn't imagine I'm standing in the field if I said I was sitting between, okay.

[00:02:10] Speaker 04:
So why is this different than that?

[00:02:11] Speaker 04:
I mean you say it's the ordinary meaning.

[00:02:14] Speaker 04:
But there are plenty of ordinary meanings where you can conceive of something not being literally right between it.

[00:02:20] Speaker 02:
Well, between, obviously, is a very common preposition.

[00:02:25] Speaker 02:
It can mean slightly different things depending on the context.

[00:02:27] Speaker 02:
So there's a bunch of other clues.

[00:02:29] Speaker 02:
Probably the prosecution history is the most overwhelming.

[00:02:31] Speaker 04:
Well, why isn't the preferred embodiment a clue?

[00:02:34] Speaker 04:
A clue, because your construction would read the preferred embodiment, right?

[00:02:39] Speaker 02:
No, I don't think so, because the preferred embodiment

[00:02:43] Speaker 02:
The claims, as you can see from the prosecution, the claim is focused on the vertical motion of the vehicle.

[00:02:52] Speaker 02:
There is a vertical track in Figure 1, 130, and that is in the space separating the two series of columns.

[00:03:00] Speaker 02:
I think OPEX's argument is, well, there's a horizontal rail that appears to be not.

[00:03:05] Speaker 02:
But the claim doesn't require that every track is between.

[00:03:09] Speaker 02:
It requires only that the track

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A track is positioned so that a delivery vehicle can move vertically between the columns.

[00:03:20] Speaker 02:
And that is shown in figure one.

[00:03:21] Speaker 02:
The vertical track legs are between.

[00:03:24] Speaker 05:
Mr. Medick, what about in column 11 of the patented issue?

[00:03:29] Speaker 05:
It talks about the loading column 300 having vertical rails.

[00:03:37] Speaker 05:
That it's a track.

[00:03:40] Speaker 05:
the preferred embodiment, the column 300, which is outside the array, is considered to have vertical rails, two sets of vertical rails, which would suggest that it's a track.

[00:03:53] Speaker 05:
How do you respond to that?

[00:03:54] Speaker 02:
So like I said, not every track has to.

[00:03:58] Speaker 02:
The claim note says there is a track.

[00:04:01] Speaker 02:
And I think what's actually the prosecution history is really helpful here.

[00:04:05] Speaker 02:
And also notice that the claim language says right after the track positioning requirement,

[00:04:10] Speaker 02:
It says, when the vehicle is stopped along the track, it can deliver an item to a bin, something along those lines.

[00:04:19] Speaker 02:
That happens not when it's on its way up.

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It's when the vehicle is on its way down in Figure 1, and that's when it stops and delivers it to the bin.

[00:04:28] Speaker 02:
And you can see from the prosecution history, when the applicant was presented with alerts during

[00:04:36] Speaker 02:
by the patent office, he amended the claim to include a requirement that the vehicle has to travel vertically.

[00:04:44] Speaker 05:
Now, Lertz was like a ramp.

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It had a ramp like a parking garage.

[00:04:49] Speaker 02:
Exactly.

[00:04:50] Speaker 05:
So that was not traveling vertically, clearly.

[00:04:54] Speaker 02:
No.

[00:04:54] Speaker 02:
Maybe if we could look at what he said in the prosecution history, is he said, in Lertz,

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In order for the car to go up or down in the level, it has to drive over to a ramp to go up or down a level.

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That's vertical.

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But unlike the present invention and the present invention, he said LERT doesn't allow you to go up or down a level to deliver an item to a bin.

[00:05:22] Speaker 02:
Unlike the present invention, where it's between in the space separating the two series of columns so that you can deliver an item to the bin above or a bin below.

[00:05:33] Speaker 05:
One thing that I've noticed is that in that same prosecution history when that claim language was added, if I remember correctly, they were referring to Figure 3.

[00:05:44] Speaker 05:
And if you look at the orientation of Figure 3 and what they refer to as the first series of columns and the second series of columns, it's in that same axis of looking down between the two sets of columns.

[00:05:58] Speaker 05:
And it's on the outside there.

[00:06:01] Speaker 02:
I think it was figure 7 and figure 8, my recollection.

[00:06:04] Speaker 02:
If you look at page 527 in the appendix, I can point you to the exact.

[00:06:19] Speaker 05:
What I was referring to was at page 528.

[00:06:22] Speaker 05:
528.

[00:06:24] Speaker 05:
Yeah.

[00:06:25] Speaker 05:
If you look at line five through about line eight, starting with the phrase, for instance, as shown in figures two through four, the system may include a front series of columns of destination areas 190 and a rear series of columns of destination areas 190.

[00:06:44] Speaker 05:
In such a vitamin, it equals 200 to move in the space between the front and rear columns.

[00:06:50] Speaker 02:
So when you said figure three, this is referring to figures two to four of the 194 pattern.

[00:06:56] Speaker 02:
So maybe I misunderstood.

[00:06:58] Speaker 02:
I thought you were talking about figure three alert.

[00:07:00] Speaker 02:
Could you repeat the figure three alert?

[00:07:02] Speaker 05:
I was just saying, when I looked at these figures, figures two through four, it seemed to be looking at the same orientation as the Q's device and referring to something that was outside of the array.

[00:07:17] Speaker 05:
And so maybe you can help me understand that.

[00:07:21] Speaker 02:
Yeah, so let me start off at 527.

[00:07:26] Speaker 02:
Because I think it's fairly clear here.

[00:07:29] Speaker 02:
I'm looking at the last paragraph, and about four lines down, he says, to go up or down between levels, he's describing alert.

[00:07:39] Speaker 02:
To go up or down between levels, the vehicles drive up or down ramps, as shown in figure A. The ramps are located at the outside edge of each level, as shown in figure seven.

[00:07:50] Speaker 02:
OK, I'm going to skip a little bit down.

[00:07:52] Speaker 02:
where he says, the vehicles cannot move vertically to store or retrieve an item that it is in a column above or below the level that the vehicle is on.

[00:08:00] Speaker 02:
The vehicle must drive away.

[00:08:02] Speaker 02:
This is just like the Gen 2 system.

[00:08:04] Speaker 02:
It must drive away from the destination area and over to a ramp, this is the vertical movement, to move up or down one or more levels to reach the appropriate vertical location for a destination area.

[00:08:16] Speaker 02:
Now he's going to contrast that with this system on the next page.

[00:08:21] Speaker 02:
He says, in contrast, and I'm going to skip the first sentence and move on to the second, the vehicle track is located between the two series of columns.

[00:08:33] Speaker 02:
So the vehicles can move vertically between the first and second series of columns and can transfer an item forwardly to the first series of columns or rearwardly to the second series of columns.

[00:08:45] Speaker 02:
So that only happens in the patent in figure one when it's on its way down, and that's definitely

[00:08:51] Speaker 02:
in the space separating the two columns.

[00:08:53] Speaker 05:
But it's referring to figures two through four that show a different orientation.

[00:08:59] Speaker 03:
Give me just a second.

[00:09:04] Speaker 05:
Look at figure two.

[00:09:09] Speaker 02:
Figure two, no.

[00:09:12] Speaker 02:
Figure two is the same orientation.

[00:09:14] Speaker 02:
It's just showing a top deal.

[00:09:17] Speaker 02:
And so what the pattern describes as the front is on the left of Figure 2.

[00:09:23] Speaker 05:
What about Figure 4?

[00:09:25] Speaker 02:
Figure 4.

[00:09:27] Speaker 02:
This is a side view, but you can't really tell much from Figure 4 because it's not showing where the vertical track legs are.

[00:09:35] Speaker 02:
You have to look at Figure 3 to see that.

[00:09:38] Speaker 02:
Figure four is just showing an end view of figure three.

[00:09:42] Speaker 02:
So the vertical track legs, I colored them yellow in the briefs.

[00:09:45] Speaker 05:
How is a person to know that the track that's in the loading column, 300, is not a vertical track?

[00:09:54] Speaker 02:
Well, it perhaps could be considered a vertical track.

[00:09:57] Speaker 02:
But the claim requires that you have to have a track

[00:10:01] Speaker 02:
that's vertical, and that's delivering it where, when the vehicle stops along the track, it can deliver an item to the bank.

[00:10:08] Speaker 02:
Those are the ones that are between.

[00:10:10] Speaker 02:
And it makes sense.

[00:10:11] Speaker 02:
That's why the inventor said during prosecution, it has to be between because it has to stop on its way down to deliver an item.

[00:10:19] Speaker 05:
Can I ask you something else?

[00:10:20] Speaker 02:
Yes.

[00:10:21] Speaker 05:
The judge here held that claim doesn't require a vertical track.

[00:10:27] Speaker 05:
If I thought that was wrong, did the judge say anything like, even if the claim does require a vertical track, this is what would read on it?

[00:10:35] Speaker 05:
Identify that the lift nonetheless would satisfy that claim limitation, for example?

[00:10:41] Speaker 02:
I'm sorry.

[00:10:41] Speaker 02:
Could you repeat that?

[00:10:43] Speaker 02:
Sure.

[00:10:43] Speaker 05:
OK.

[00:10:44] Speaker 05:
So I think that the judge below held that the claim doesn't require a vertical track.

[00:10:52] Speaker 05:
Have you appealed that, claim construction?

[00:10:58] Speaker 02:
Well, our second issue was that the track can encompass an elevator.

[00:11:05] Speaker 02:
And that's an argument that we made in the brief, that it has to be a vertical track.

[00:11:10] Speaker 05:
So it has to be a vertical track.

[00:11:12] Speaker 05:
If I agreed with that, would that change the outcome of the case?

[00:11:16] Speaker 05:
Or did the administrative judge identify something that's vertical as being the vertical track?

[00:11:23] Speaker 02:
Well, if you agree with me on the track, what I call the track positioning, the between issue, then- I'm setting that aside.

[00:11:30] Speaker 02:
Setting that aside.

[00:11:31] Speaker 05:
I have a different question.

[00:11:32] Speaker 05:
My different question is that the administrative judge held that there is no requirement for a vertical track.

[00:11:40] Speaker 02:
He did hold that.

[00:11:41] Speaker 05:
That's right.

[00:11:42] Speaker 02:
Right.

[00:11:43] Speaker 05:
I'm asking you if I disagree with that claim construction.

[00:11:46] Speaker 02:
Yes.

[00:11:48] Speaker 05:
Where does that leave us?

[00:11:50] Speaker 02:
I think that shows there's no infringement because an elevator, I mean, the elevators.

[00:11:57] Speaker 02:
Well, actually, no, because the CLJ actually found the elevator was not a vertical track.

[00:12:04] Speaker 02:
Where is that?

[00:12:06] Speaker 02:
It's mentioned in the reply brief.

[00:12:08] Speaker 02:
I can find it for you, but it's when he's dealing with dependent claim seven, which is not really an issue.

[00:12:13] Speaker 02:
But it's in the reply brief.

[00:12:15] Speaker 02:
Maybe I can do it.

[00:12:16] Speaker 02:
I'm into the yellow.

[00:12:18] Speaker 02:
He did find it.

[00:12:19] Speaker 02:
He said the belts are not.

[00:12:21] Speaker 02:
I'll find that in the reply brief.

[00:12:28] Speaker 02:
Well, I did want to get to the drive system.

[00:12:33] Speaker 02:
Well, continue.

[00:12:34] Speaker 02:
It's your time.

[00:12:35] Speaker 02:
OK, I'm going to continue now.

[00:12:36] Speaker 02:
Since I don't have a lot of time, I want to cut right to what I think is the critical issue for the drive system, which is the prosecution history of the related 883 patent.

[00:12:48] Speaker 02:
And there's a long string of continuations.

[00:12:51] Speaker 02:
And that was the first one that ultimately led to the 194 and the 505 patents.

[00:12:58] Speaker 02:
In that prosecution history, there was a reference called Holland.

[00:13:05] Speaker 02:
First of all, there was a pending claim 34.

[00:13:08] Speaker 02:
And it had a drive system claim element cooperable with a guide system, almost identical to the drive system claim element to the one at issue here in the 505 bank.

[00:13:18] Speaker 02:
And the prior reference was Holland that was at issue.

[00:13:22] Speaker 02:
And the applicant said, Holland has a track that's horizontally, but it uses cables to lift the vehicle vertically.

[00:13:31] Speaker 02:
And he said, in contrast, the current system, my system that's claimed in the 505 patent, it requires a track in both the horizontal and vertical directions.

[00:13:46] Speaker 02:
And the chief ALJ said, there wasn't a disclaimer of a track in the vertical direction for only one reason.

[00:13:55] Speaker 02:
He said, the applicant made multiple distinguishments on different grounds.

[00:14:00] Speaker 02:
Actually, let me read his exact language.

[00:14:07] Speaker 03:
You're aware that you're using up all your time, which you're entitled to do.

[00:14:13] Speaker 02:
OK.

[00:14:16] Speaker 02:
I'm going to try to use up a little more time.

[00:14:21] Speaker 02:
I see I have a. So the ALJ said there was a combination of grounds.

[00:14:29] Speaker 02:
But that's not the law.

[00:14:30] Speaker 02:
If you have a combination of grounds, you can't have a disclaimer standing one ground.

[00:14:34] Speaker 02:
Let me rest there, and I'll come back to it on my rebuttal.

[00:14:37] Speaker 02:
A little I have left.

[00:14:48] Speaker 03:
You're splitting your time with Mr. Shaw.

[00:14:50] Speaker 01:
Yes, sir.

[00:14:53] Speaker 01:
May it please the court.

[00:14:54] Speaker 01:
I'd like to focus on the limitation to track his position between residing in claim one of the 194 patents, which is the only issue on appeal that's arguably not forfeited.

[00:15:04] Speaker 01:
As was mentioned already, the word between is a common preposition with a plain meaning when describing the location of one object in relation to two other objects.

[00:15:15] Speaker 01:
Like how those sitting in the audience behind me are between this lectern and those back doors of this courtroom.

[00:15:20] Speaker 01:
I think we'd all agree for that to be true, even if they're not sitting within an imaginary corridor that's limited to the height and width of this lectern that runs back to those doors.

[00:15:31] Speaker 01:
And the ALJ found that

[00:15:32] Speaker 01:
expect that the specification uses the term consistently with that plain meaning.

[00:15:38] Speaker 01:
On the other hand, HC asked this court to construe between narrowly to mean only confined within the three-dimensional volume separating two objects in order to avoid infringement.

[00:15:49] Speaker 05:
How do you respond to the dictionary definition that was relied on?

[00:15:52] Speaker 05:
It's in the space separating two objects.

[00:15:56] Speaker 01:
Well, I think that actually supports the ALJ's interpretation, Your Honor, because their dictionary definition was

[00:16:02] Speaker 01:
in the space separating two points or objects between New York and Chicago, I think we'll agree that the states of Ohio and Pennsylvania are between the cities of Chicago and New York, even if they're not located precisely between the space separating the two footprints of those cities.

[00:16:20] Speaker 04:
It's not really a question.

[00:16:21] Speaker 04:
They're not located precisely between.

[00:16:23] Speaker 04:
They're not located between in the diagram, in the figure, in the pattern.

[00:16:30] Speaker 04:
Yes.

[00:16:31] Speaker 04:
Is what we're talking about between?

[00:16:34] Speaker 04:
Yes.

[00:16:36] Speaker 04:
Is it not precisely between versus precisely between?

[00:16:40] Speaker 01:
I'm sorry, I don't understand.

[00:16:42] Speaker 04:
Well, you use the word precisely.

[00:16:44] Speaker 04:
I don't know what the difference is between it's precisely between and it's not precisely between.

[00:16:50] Speaker 01:
Excuse me.

[00:16:51] Speaker 01:
So I'm referring to HC's proposed interpretation of between, where their position is that for something to be between within the context of the patent, it needs to be confined within the three-dimensional space set by the two objects of the preposition between.

[00:17:09] Speaker 01:
If you look at the specification, they use it in a broader sense.

[00:17:13] Speaker 01:
First, if we look at the preferred embodiment under their interpretation, it reads out the preferred embodiment.

[00:17:19] Speaker 01:
This has already been discussed.

[00:17:22] Speaker 01:
Pennix 13647, if we could all turn to that.

[00:17:27] Speaker 01:
That shows figure one, which is the only preferred embodiment of the apparatus here.

[00:17:31] Speaker 01:
13647, it's an annotated version of figure one created at the evidentiary hearing based on HC's expert's description of how the vehicle moves within the system, which is what all those red arrows represent.

[00:17:45] Speaker 04:
Can you go back to figure one, because when I asked your friend about figure one, he says figure one is, you've got it.

[00:17:51] Speaker 04:
We only see one side, but we've got something on the other side.

[00:17:56] Speaker 04:
And his answer was that some of it is between and some of it isn't.

[00:18:03] Speaker 01:
Yes.

[00:18:05] Speaker 01:
So figure one, if you see that number 190, that's an output bin.

[00:18:11] Speaker 01:
And then there's a stack of output bins.

[00:18:13] Speaker 01:
That's one column of destination areas.

[00:18:17] Speaker 01:
And then there's a series of eight of those.

[00:18:20] Speaker 01:
And so that's the first series of destination areas in the claim

[00:18:25] Speaker 01:
Language of claim one, it says between the first series of destination areas, which is what we see, and then there's a mirror version of this on the backside of the track that we don't see.

[00:18:35] Speaker 01:
That's undisputed.

[00:18:37] Speaker 01:
And that's what is the second series of columns of destination areas.

[00:18:41] Speaker 01:
And so between, they would have between mean that the track for guiding the delivered vehicles to the destination areas must be confined within that three-dimensional area set by the boundaries of those two series of destination areas, two series of columns of destination areas.

[00:19:01] Speaker 01:
But as you can see here in the preferred embodiment depicted in figure one, there's several portions of the track that are outside of that space.

[00:19:09] Speaker 01:
yet still within the vertical planes set by the series of columns.

[00:19:15] Speaker 01:
And so that's the basis on which the ALJ found that the preferred embodiment was read out of Claim 1 under their interpretation.

[00:19:24] Speaker 01:
There's further support for that, Your Honors.

[00:19:26] Speaker 01:
If you turn to column 3, lines 9 and 10 of the specification, that's at appendix 304, the ALJ expressly relied on this below at appendix 140 and 141.

[00:19:40] Speaker 01:
Lines 9 and 10 in column 3 explain that in the preferred embodiment the bins 190 are arranged in columns between the vertical track legs.

[00:19:50] Speaker 01:
So now, as the vehicle travels downward for an embodiment, the vehicle travels down on four vertical legs of the track.

[00:19:59] Speaker 01:
Each label is 130.

[00:20:01] Speaker 01:
We see the head figure 5, because each of the four wheels of the delivery vehicle rides down one of the vertical tracks.

[00:20:07] Speaker 05:
Can I talk about vertical tracks right now?

[00:20:10] Speaker 05:
I want to ask you the same question that I asked Mr. Nadek, which is, so what was

[00:20:19] Speaker 05:
identified as being the track that's positioned between the first series of columns and the second series of columns in the accused device or system.

[00:20:30] Speaker 01:
What was found to be?

[00:20:32] Speaker 01:
Yeah.

[00:20:33] Speaker 01:
The entire track for guiding.

[00:20:35] Speaker 01:
So the entire track on which?

[00:20:38] Speaker 05:
The whole loop, the whole track?

[00:20:41] Speaker 05:
Yes.

[00:20:41] Speaker 05:
So what is the portion that allows it so that a delivery vehicle can move vertically?

[00:20:48] Speaker 01:
The portion of the accused system, it's the lifts that are adjacent to that three-dimensional space, yet still within the vertical plane set by the columns of things.

[00:20:59] Speaker 05:
So one thing that the chief administrative law judge held was that these claims do not require a vertical track, right?

[00:21:08] Speaker 05:
Yes.

[00:21:11] Speaker 05:
So if I were to disagree with that, then what does that require?

[00:21:16] Speaker 05:
Is that requiring a remand, or is there some alternative finding that has been made?

[00:21:25] Speaker 01:
Well, I would say two things about that.

[00:21:26] Speaker 01:
First, clean reading of claim one, there's no requirement for track.

[00:21:30] Speaker 01:
It just says, be tracked for guiding.

[00:21:32] Speaker 01:
the delivery vehicles at the destination areas.

[00:21:35] Speaker 05:
It says a track position between first series of columns and a second series of columns so that a delivery vehicle can move vertically between the first series of columns and the second series of columns.

[00:21:46] Speaker 01:
Yes.

[00:21:47] Speaker 05:
In my view, that might suggest vertical, so that's why I'm asking this question.

[00:21:50] Speaker 05:
So, I mean, you can argue why I'm wrong.

[00:21:53] Speaker 05:
But first, let me know whether, answer my direct question, if you don't mind.

[00:21:57] Speaker 01:
Yes.

[00:21:58] Speaker 01:
Remand would be proper to the extent that the ALJ's constructions are changed anyway, so that the commission can determine in the first instance how these new constructions should be applied.

[00:22:10] Speaker 01:
But again, I would circle back that I believe that the description of the track is agnostic as to the orientation for the ability to move the vehicle.

[00:22:21] Speaker 01:
For example, that first wearing clause just refers back to the antecedent basis of a track for guiding.

[00:22:27] Speaker 01:
And then it says the track is positioned so that a delivery vehicle can move vertically.

[00:22:32] Speaker 01:
So it doesn't say the portion of the track that's vertical is between so that it can move vertically.

[00:22:39] Speaker 05:
Well, if the track has to be positioned so that a delivery vehicle can move vertically, how could that track not be positioned vertically?

[00:22:49] Speaker 01:
Well, for example, in the EQ system, you have horizontal portions of the track that are sitting on lifts that are like forklifts.

[00:22:56] Speaker 01:
And so they're horizontal, but they still read on this limitation because of them, the vehicle can move vertically.

[00:23:05] Speaker 05:
But to your point though, Your Honor, if you were to- It feels a little weird, because it feels like we're reading the claim language in light of the accused device.

[00:23:13] Speaker 05:
Instead of understanding the claim language in light of the specification and intrinsic evidence.

[00:23:18] Speaker 01:
Well, I would say, if I could just circle back to what I was saying for column 3, lines 9 and 10, that specifically uses between in the same way that the ALJ interpreted it.

[00:23:28] Speaker 01:
Because if, so again, lines 9 and 10 of column 3 state, in the present instance, the bins 190 are arranged in columns between the vertical track legs.

[00:23:42] Speaker 01:
But we see in figure 1 and figures 2 through 5 that the output bins are adjacent to

[00:23:48] Speaker 01:
the four rails, they couldn't be in the middle, because that's where the glue vehicle travels.

[00:23:53] Speaker 03:
Counsel, your time has expired.

[00:23:54] Speaker 03:
So let's hear from Mr. Shaw.

[00:23:59] Speaker 03:
It's happening over.

[00:24:13] Speaker 00:
Thank you, Your Honor.

[00:24:15] Speaker 03:
First... I'd like to... Oh, please.

[00:24:20] Speaker 03:
we've heard.

[00:24:22] Speaker 03:
It seems very strange to me, reading the third line of that track paragraph, that a vehicle can move vertically between the first series of columns and the second series of columns.

[00:24:36] Speaker 03:
The columns are vertical.

[00:24:38] Speaker 03:
So how is something moving between the columns has to move horizontally?

[00:24:46] Speaker 03:
So why does the claim read vertically?

[00:24:52] Speaker 03:
I'm sorry.

[00:24:52] Speaker 03:
Because it's at the edges, the far edges, where the vertical movement appears.

[00:24:58] Speaker 03:
Isn't that correct?

[00:24:59] Speaker 00:
In the accused product, Your Honor?

[00:25:01] Speaker 03:
No, in the thing, in the invention.

[00:25:03] Speaker 00:
So in the invention, it doesn't specify that the vehicles have to move vertically or horizontally at all.

[00:25:09] Speaker 00:
They just have to be able to move in between the bins.

[00:25:12] Speaker 00:
In the preferred embodiment, the vehicles move up the loading column, horizontally across the horizontal rail 135, and then they can go.

[00:25:21] Speaker 03:
But it doesn't say horizontally between.

[00:25:22] Speaker 03:
It says vertically between.

[00:25:24] Speaker 00:
Yes.

[00:25:24] Speaker 00:
And then when they get to the proper column to go down to the bins, they travel down the vertical tracks.

[00:25:30] Speaker 00:
That's the preferred embodiment.

[00:25:31] Speaker 03:
That's no longer between.

[00:25:34] Speaker 03:
That's no longer between.

[00:25:35] Speaker 00:
Oh, so I think the whole thing here is the

[00:25:42] Speaker 00:
Appellants are trying to read the term between to mean that the vehicle has to be between the columns fully enclosed within the three-dimensional space defined by the edges of the columns from every orientation that you might be looking at it.

[00:25:55] Speaker 00:
So if you're looking at it front on, it has to be within that three-dimensional volume.

[00:25:59] Speaker 00:
But what that ignores is that if you're looking at it side on, like you were pointing out with figures three and four, your honor,

[00:26:05] Speaker 00:
It's not between at all.

[00:26:06] Speaker 00:
The bins stick out to, well, it's not between in that reading of between.

[00:26:10] Speaker 00:
They stick out to the side and the track is here.

[00:26:13] Speaker 00:
The whole meaning of between is informed by the purpose of this invention, which is what the inventor talked about and what our expert talked about at trial, which is to minimize the floor space over the prior art.

[00:26:24] Speaker 00:
So the prior art were like Hot Wheels tracks that drove around on the floor, and it took up all sorts of floor space.

[00:26:29] Speaker 00:
And so what our inventor said is, if you stand that up on its end,

[00:26:32] Speaker 00:
and you put two columns of bins on either side of this track that's disposed or this guiding system that's disposed in this vertical loop, then you minimize the floor space because you only have the vehicles moving in two dimensions instead of driving around in three dimensions on the floor.

[00:26:48] Speaker 00:
That's the whole purpose of the invention.

[00:26:49] Speaker 00:
And that's what they mean when they talk about the claim term between, is when you're looking end on end, the track in this claim is positioned between the two columns of bins.

[00:27:01] Speaker 00:
And there's no question from anyone that from that perspective, the horizontal tracks that are fixed in their system are between the columns of bins.

[00:27:09] Speaker 00:
And what they're now calling the floors of the lift, which are also

[00:27:12] Speaker 00:
So, track segments that are disposed on those elevators from the end are also between the columns of bins.

[00:27:18] Speaker 00:
And if you look at those floors of the lift, they're made of the exact same track material as what their own product literature calls horizontal track.

[00:27:26] Speaker 00:
So, I feel like this is trying to read a preferred embodiment into the claims in an effort to manufacture a non-imprisonment argument.

[00:27:33] Speaker 05:
What about the claim?

[00:27:35] Speaker 05:
Just looking at the plain claim language where it says

[00:27:38] Speaker 05:
that the track is positioned between first series of columns and second series of columns so that a delivery vehicle can move vertically.

[00:27:46] Speaker 05:
Why doesn't that require a vertical track?

[00:27:51] Speaker 00:
I would say, first, if you look at claims two through four, they specify that a vertical track is required.

[00:27:56] Speaker 05:
They specify other things, too.

[00:27:57] Speaker 05:
They also introduce a horizontal track.

[00:27:59] Speaker 00:
That's true.

[00:28:00] Speaker 00:
That's true.

[00:28:01] Speaker 00:
I think also, again, going back to first principles of what's the purpose of this invention, it's to have the system that the vehicles move on in one plane between the two columns of bins.

[00:28:11] Speaker 00:
So if you place any part of the track between the columns of bins, then the whole thing has to be between them.

[00:28:17] Speaker 00:
And that's what the so that language is referring to.

[00:28:19] Speaker 05:
If I place a horizontal- You're going to between, but I'm just trying to figure out whether it's requirement that there be a vertical track.

[00:28:26] Speaker 00:
Understood, and that's what I'm trying to explain.

[00:28:28] Speaker 00:
Well, let me step back from that then.

[00:28:30] Speaker 00:
I think that requires going to the discussion in the specification of the synchronous and not synchronous embodiments in column 11, lines 14 through 27 of the 505 patent.

[00:28:41] Speaker 00:
And what the experts all said is the not synchronous embodiment is an embodiment where the number of turns of your motor doesn't correspond to how far your vehicle has traveled.

[00:28:51] Speaker 00:
because of various reasons.

[00:28:53] Speaker 00:
One of those reasons could be wheel slippage in a friction driving system.

[00:28:57] Speaker 00:
Another reason could be because your vehicle's being moved by something external like an elevator.

[00:29:01] Speaker 00:
And so now the turns of your motor, your motor's not turning when your vehicle's being lifted by an elevator.

[00:29:07] Speaker 00:
But it's still within the not synchronous embodiment described in the patent.

[00:29:11] Speaker 00:
And that's why you have to have these external sensors disposed along the track to find where the vehicle is, because it's not a deterministic relationship, is the way their expert described it.

[00:29:21] Speaker 05:
So you're basically saying that there is an embodiment in the specification that has a lift or elevator.

[00:29:27] Speaker 00:
Yeah, there is an embodiment in the specification that could encompass an elevator.

[00:29:30] Speaker 00:
It doesn't explicitly say that.

[00:29:31] Speaker 05:
And so how does that relate to the claim language that I was just talking about?

[00:29:35] Speaker 00:
So again, the claim language doesn't require that the vehicles drive vertically on the track.

[00:29:40] Speaker 00:
It just requires that they move vertically.

[00:29:42] Speaker 00:
And if they're being lifted or descended by an elevator, then they're moving vertically.

[00:29:47] Speaker 00:
But they're not driving vertically, and there's no track required.

[00:29:54] Speaker 00:
Does that answer your question, Your Honor?

[00:29:56] Speaker 05:
I have your paper here.

[00:29:57] Speaker 05:
Yes, it does.

[00:29:59] Speaker 00:
So I want to talk for- Let me ask you another question.

[00:30:01] Speaker 00:
Oh, please.

[00:30:02] Speaker 05:
If I were to disagree with that, would you agree that the case has to be vacated or remanded for a determination of whether the accused product has a vertical track?

[00:30:10] Speaker 00:
I think it depends on how you find on the other claim terms because the track claim term doesn't affect the 505 patent claim one and its dependence.

[00:30:18] Speaker 00:
And if you affirm the infringement finding on those claims then it doesn't change the scope of the ITC's exclusion order cease and desist order.

[00:30:26] Speaker 00:
So at that point I think we still are in the situation we're in right now where we have an exclusion order that applies and I don't know that that necessarily needs a remand.

[00:30:35] Speaker 05:
Okay, thank you.

[00:30:37] Speaker 00:
I want to address one thing that Council... Well, two things first.

[00:30:42] Speaker 00:
Council was talking about the 844 file history and the distinction over Holland.

[00:30:48] Speaker 00:
And one thing he said is that that claim has the same drive system cooperable with the guide system language.

[00:30:53] Speaker 00:
I think it's important to note, and this is on appendix page 849, that there's a further element in that claim that requires specifically that the drive system can convey the vehicle in two directions.

[00:31:04] Speaker 00:
And that, to me, reads like the drive system has to be able to drive the vehicle.

[00:31:08] Speaker 00:
So that, to me, is another thing that is potentially distinguished over Holland, where its vehicle does not drive in two directions.

[00:31:16] Speaker 00:
But that's totally different claim language than what we're talking about in the 505 patent, where it only says that the vehicle has to have a horizontal direction of travel and a vertical direction of travel.

[00:31:25] Speaker 00:
So that goes back to what I was just talking about, where a vehicle can have a vertical direction of travel if it's riding on an elevator.

[00:31:32] Speaker 00:
The other thing I want to mention just quickly about the element between that we've talked about.

[00:31:39] Speaker 00:
I think your question about the baseball game and being between home base and

[00:31:43] Speaker 00:
or home plate and first base is right on point.

[00:31:45] Speaker 00:
And this actually comes up in the Outside the Box case that appellants cited.

[00:31:50] Speaker 00:
The first thing the judge says is, hey, in normal parlance, the use of the term between includes things that stick out to the side.

[00:31:56] Speaker 00:
And then the judges went on and looked at the specification and found that it was very limited in that sense, and that's why they construed between to mean entirely within the three-dimensional volume.

[00:32:05] Speaker 00:
As we've talked about some today, that's not the case here because that would read the preferred embodiment out of claim five.

[00:32:10] Speaker 00:
And as my co-counsel also pointed out, the specification uses the term between to allow things to stick out to the side in the context of the bins versus the vertical tracks.

[00:32:21] Speaker 00:
The other thing when we talk about the alert reference, number one, that argument was waived.

[00:32:26] Speaker 00:
They never raised it in commission briefing.

[00:32:28] Speaker 00:
You can see this in the appendix at page 13, 599 through 612.

[00:32:34] Speaker 00:
The second thing, and I think this goes to some questions that you were asking, Judge, if you look at figure seven and figure eight of LERT on appendix page 15, 446 and 447, number one, the vehicles don't move vertically at all.

[00:32:48] Speaker 00:
They drive horizontally up ramps.

[00:32:50] Speaker 00:
Number two, the ramps are out to the side, and more importantly, they're perpendicular to the rows of bins.

[00:32:57] Speaker 00:
So the vehicle's not moving up those ramps between the rows of bins.

[00:33:01] Speaker 00:
It's moving this way, and the rows of bins are here.

[00:33:04] Speaker 00:
So there's any number of distinctions over alert that one could take from that discussion that OPEC's made.

[00:33:10] Speaker 00:
There's no clear and unmistakable disclaimer.

[00:33:14] Speaker 03:
Thank you, counsel.

[00:33:15] Speaker 03:
As you see, your time has expired.

[00:33:29] Speaker 02:
Thank you, Your Honor.

[00:33:31] Speaker 02:
First, I wanted to address a question Judge Stoll that you made before having to do with vertical track.

[00:33:39] Speaker 02:
There was a claim that's not an issue in this appeal, Claim 7, which requires a track comprising a substantially vertical portion.

[00:33:47] Speaker 02:
And Chief Judge Cheney found it wasn't infringed.

[00:33:51] Speaker 02:
His analysis, because he found an elevator is not a vertical track or the belts,

[00:33:56] Speaker 02:
His analysis is on appendix pages 153 to 154.

[00:34:01] Speaker 02:
It's also cited on page 18 of our reply brief.

[00:34:07] Speaker 02:
Secondly, I'd like to go back to the drive system limitation of the 505 patent.

[00:34:17] Speaker 02:
The applicant distinguished this during the prosecution of the 883 patent.

[00:34:21] Speaker 02:
It distinguishes the claim drive system from the Holland reference.

[00:34:27] Speaker 02:
And Chief ALJ, in his opinion on pages 114 and 115, I'd like to just read a portion of what his analysis was.

[00:34:36] Speaker 02:
He found there was no disclaimer of the use of an elevator for one reason.

[00:34:42] Speaker 02:
The applicants argued that a particular combination of several elements distinguished the claim over the prior art, not that each of those elements in isolation was novel.

[00:34:51] Speaker 02:
Indeed, the applicants offered several other amendments as possible bases for distinguishing the prior art, many less three elements that relate to the method of retaining or ejecting an item.

[00:35:03] Speaker 02:
And he says, nothing in this passage manifests a clear and unmistakable intent to limit the scope of drive system.

[00:35:10] Speaker 02:
And that's also the only reason that OPEC and the ITC argued why there's no disclaimer, though I think he may have raised a new argument today that's not in his briefs.

[00:35:23] Speaker 02:
It's clearly not the Federal Circuit's law.

[00:35:26] Speaker 02:
We cited the case Anderson, the corporate fiber composites in our brief, and there's many other cases.

[00:35:34] Speaker 02:
The fact that you cited multiple grounds of distinction doesn't immunize you from a disclaimer on any one ground.

[00:35:42] Speaker 02:
And if you look at the cases that OPEX and ITC recite in their briefs to support the argument that multiple grounds of disclaimer don't make it clear enough, multiple grounds of distinguishing, their cases don't stand for what they're arguing that they can immunize you just because you cited multiple grounds.

[00:36:04] Speaker 02:
Those cases are trivascular.

[00:36:06] Speaker 02:
versus Samuels and computer docking station court.

[00:36:09] Speaker 02:
And we discussed in our briefs, neither of those cases support that position.

[00:36:14] Speaker 02:
And I'd like to look at the prosecution history for a second.

[00:36:20] Speaker 02:
If you look at page 860, this is where he's discussing Holland.

[00:36:26] Speaker 02:
You can see the drive system limitation.

[00:36:29] Speaker 02:
Well, the drive system limitation is pretty similar to the drive system limitation that's at issue here, almost the same.

[00:36:35] Speaker 02:
And he talks about Holland just has a horizontal track but doesn't move vertically.

[00:36:41] Speaker 02:
I see my red lights on.

[00:36:44] Speaker 02:
May I just finish?

[00:36:45] Speaker 03:
You can finish your thought.

[00:36:46] Speaker 02:
If you notice on the next page, he says that applicant system provides the vehicles that require a track system in both directions.

[00:36:53] Speaker 02:
And on the facing page,

[00:36:55] Speaker 02:
He has a claim 34 here that doesn't match.

[00:36:58] Speaker 02:
It's got some underlying language that doesn't match exactly the language that's pending in the claim.

[00:37:02] Speaker 02:
But he shows that this traction system limitation that he's talking about comes from the drive system limitation, specifically the words about configured to maintain the orientation as it changes from horizontal to vertical.

[00:37:20] Speaker 03:
Thank you to both counsels.