[00:00:00] Speaker 01:
All right, our next case for argument is 24-1453, National Steel Car versus Green Fire.

[00:00:07] Speaker 01:
Mr. Is it Levelle?

[00:00:10] Speaker 01:
How do I say your name?

[00:00:12] Speaker 04:
Levelle.

[00:00:12] Speaker 04:
It's pronounced easier than it's spelled, Your Honor.

[00:00:16] Speaker 04:
Mr. Levelle.

[00:00:16] Speaker 04:
Levelle.

[00:00:17] Speaker 01:
Say it again.

[00:00:17] Speaker 04:
Levelle.

[00:00:18] Speaker 01:
Mr. Levelle.

[00:00:19] Speaker 01:
OK, like a level.

[00:00:19] Speaker 01:
Yeah, got it.

[00:00:20] Speaker 01:
All right, Mr. Levelle, please proceed.

[00:00:21] Speaker 04:
Thank you, Your Honor.

[00:00:24] Speaker 04:
Good morning, and may it please the court.

[00:00:26] Speaker 04:
The district court's summary judgment of non-infringement should be vacated.

[00:00:31] Speaker 04:
And this case should be remanded back to the district court for further proceedings under the proper construction of the relatively straightforward terms, floor panel and deck.

[00:00:44] Speaker 04:
The court erroneously read into those two basic claim terms at least two limitations that are not

[00:00:53] Speaker 04:
warranted in the plain and ordinary meaning of the claim, and are not included in the court's actual claim construction.

[00:01:02] Speaker 04:
The court issued a claim construction order, and the parties litigated under that claim construction order for two years.

[00:01:10] Speaker 04:
And then at the last moment in the summary judgment opinion, the court added two additional limitations that are not in the court's claim construction.

[00:01:18] Speaker 04:
And the district court did so, and it did so very clearly.

[00:01:24] Speaker 04:
without actually modifying the court's claim construction.

[00:01:27] Speaker 01:
Let's just get to it.

[00:01:29] Speaker 01:
Floor panel versus floor panel extension, right?

[00:01:34] Speaker 04:
Well, it's floor extension versus floor panel extension.

[00:01:37] Speaker 04:
The court's claim construction just required an extension.

[00:01:42] Speaker 01:
Well, but the extension is part of the construction of floor panel, correct?

[00:01:47] Speaker 01:
Well, the... Is the extension part of the construction of floor panel?

[00:01:52] Speaker 04:
The word extension is within the construction of floor panel.

[00:01:55] Speaker 01:
So how can it be talking about something other than the floor panel?

[00:01:58] Speaker 04:
Because the phrase as a whole is the floor, including at least one floor panel.

[00:02:02] Speaker 01:
Yes, but the extension is in the context of the floor panel.

[00:02:07] Speaker 04:
Well, the construction.

[00:02:11] Speaker 01:
What am I missing?

[00:02:12] Speaker 01:
This was not within the construction of the word floor, was it?

[00:02:15] Speaker 01:
Was it the extension within the construction of the word floor, which is a separate tape claim term, than the word floor panel?

[00:02:21] Speaker 04:
But it's also the construction of the term deck.

[00:02:25] Speaker 04:
And yes, we did agree that the court could construe them similarly.

[00:02:29] Speaker 04:
But there's nothing in the claim term deck that requires that the extension be a floor panel extension.

[00:02:35] Speaker 03:
Well, it would just be a deck extension.

[00:02:38] Speaker 03:
Right.

[00:02:38] Speaker 03:
That would be fine.

[00:02:39] Speaker 03:
Well, let's start from the beginning.

[00:02:42] Speaker 03:
I don't even understand your argument.

[00:02:46] Speaker 03:
What is the distinction between a floor extension and a floor panel extension?

[00:02:50] Speaker 03:
Let's just assume that right now, to me, extensions, floor panel extensions, floor extensions,

[00:02:58] Speaker 03:
they all mean the same thing, and they're interchangeable.

[00:03:01] Speaker 03:
And so whenever a party or a judge was referring to an extension or a floor extension, it was also referring to a floor panel extension.

[00:03:11] Speaker 03:
And can you tell me why does it matter?

[00:03:15] Speaker 04:
Well, it arguably didn't matter unless and until, well, it became more important once the court required that extension in the court's summary judgment order inherently requires

[00:03:27] Speaker 04:
two things to physically touch.

[00:03:29] Speaker 04:
Under that assumption, the difference between a floor panel extension and a floor extension would be what it has to touch.

[00:03:38] Speaker 04:
If we assume, because the court said they have to touch, two things for an extension in the court summary judgment order, not in the claim construction order, the judge concluded that an extension must inherently touch

[00:03:53] Speaker 03:
Something so why wouldn't a floor extension also be required to touch the floor panel?

[00:03:58] Speaker 04:
It would be a floor extension We would be okay and they would still infringe if a floor extension had to touch the floor Their their gusset is welded to the floor It is not welded directly to a sheet because the floor has to include one or more floor panel But the floor can include other things and in this case, they've got a narrow

[00:04:22] Speaker 04:
a strip that's not a sheet.

[00:04:24] Speaker 03:
Right, but this is a claim construction of floor panel.

[00:04:27] Speaker 03:
This is not a claim construction of floor, right?

[00:04:30] Speaker 04:
Well, it's a claim construction of floor panel and deck.

[00:04:33] Speaker 03:
Right.

[00:04:33] Speaker 04:
Within the claim language.

[00:04:34] Speaker 03:
Let's just focus on floor panel for now.

[00:04:37] Speaker 03:
Why isn't it logical to understand this claim construction and claim to the extent there's any extensions?

[00:04:46] Speaker 03:
It has to extend from the floor panel sheet.

[00:04:52] Speaker 03:
i.e., be connected to the sheet that makes up the floor panels.

[00:04:56] Speaker 04:
Well, there's nothing in the claim that requires the floor panels touch each other.

[00:05:02] Speaker 04:
And in our view, in the original view, as we asserted the patent originally, these gussets were floor panels.

[00:05:10] Speaker 04:
And counsel's proposed construction, which we modified our proposed construction.

[00:05:16] Speaker 04:
We tried to narrow the issues for the court.

[00:05:18] Speaker 04:
Their construction, their proposed construction for two and a half years,

[00:05:21] Speaker 04:
said floor extension.

[00:05:23] Speaker 04:
We saw that, and we said, OK, we can work with that proposed construction of theirs.

[00:05:29] Speaker 04:
And when we modified our construction, as long as they didn't have to be welded directly together, we were OK with it.

[00:05:37] Speaker 04:
So they were arguing for two and a half years that a floor panel includes floor extensions.

[00:05:44] Speaker 04:
And the district court said floor extensions five times in its claim construction order.

[00:05:48] Speaker 04:
And therefore, our infringement expert, our expert report, everything analysis, all of the analysis in the case was on a floor extension.

[00:05:57] Speaker 04:
Because the claim construction that the court eventually adopted on the second try just says extensions.

[00:06:03] Speaker 04:
But the court's claim construction order says floor extensions five times.

[00:06:07] Speaker 04:
The parties, the... Right.

[00:06:08] Speaker 03:
And it was talking about floor extensions in the context of what was disclosed in the specification, right?

[00:06:16] Speaker 03:
It was trying to figure out what is the meaning of floor panel and it consulted the specification and the specification talked about examples of how you can have these things called extensions which might be integral to the floor sheet or you could have a separate piece sheet that is a floor extension

[00:06:37] Speaker 03:
that then gets welded to the first floor sheet.

[00:06:43] Speaker 03:
And in that context, those two things should be considered part of a floor panel.

[00:06:48] Speaker 03:
And so in that context, that's what the judge said in terms of construing floor panel.

[00:06:54] Speaker 03:
It includes an extension, but the extension is either integral to the floor sheet or it's welded to, attached to, connected to the floor sheet.

[00:07:05] Speaker 04:
In the summary judgment order, that's what the judge concluded.

[00:07:10] Speaker 04:
In the court's claim construction order, the court is very clear.

[00:07:14] Speaker 04:
It's a cardinal sin to read limitations from the preferred embodiment into the claim.

[00:07:18] Speaker 04:
And that's why the court revised its claim construction to include the word separate extensions.

[00:07:24] Speaker 01:
Well, in the original claim construction order of page 46, the court actually said the floor panel can have extensions.

[00:07:31] Speaker 04:
Right.

[00:07:32] Speaker 01:
So that was always contemplated, that there could be extensions on the floor panel.

[00:07:36] Speaker 04:
Right.

[00:07:36] Speaker 04:
The construction says extensions.

[00:07:38] Speaker 04:
It could be either.

[00:07:39] Speaker 04:
It could be physically attached, assuming it has to be welded.

[00:07:42] Speaker 01:
No, the claim construction didn't say it could be either.

[00:07:44] Speaker 01:
The claim construction order never said that.

[00:07:46] Speaker 04:
Well, the claim construction just says extensions.

[00:07:49] Speaker 04:
It doesn't that the... No.

[00:07:50] Speaker 01:
The claim construction says, quote, additionally, the floor panel may have extensions.

[00:07:55] Speaker 01:
That's what the claim construction order says at A46.

[00:07:58] Speaker 01:
Additionally, the floor panel may have extensions.

[00:08:04] Speaker 01:
Am I wrong?

[00:08:05] Speaker 04:
A46.

[00:08:08] Speaker 01:
Do you have A46?

[00:08:09] Speaker 04:
That's the original claim construction.

[00:08:12] Speaker 04:
The court revised that claim construction, and that's in Appendix 32.

[00:08:17] Speaker 04:
And the court said a floor panel or deck can be one sheet or plurality of sheets joined together and may also include one or more extensions

[00:08:28] Speaker 04:
which may be integral or which can be separate.

[00:08:31] Speaker 04:
The words are just extensions.

[00:08:35] Speaker 01:
But still the floor panel can have those things.

[00:08:38] Speaker 04:
That's the definition of floor panel.

[00:08:45] Speaker 04:
Let's talk about the separate issue, if I may, because that clarifies this issue as well.

[00:08:55] Speaker 04:
Because their gusset is a floor panel extension.

[00:08:59] Speaker 04:
And our expert concluded that.

[00:09:01] Speaker 04:
So you don't need to find a floor extension.

[00:09:04] Speaker 04:
You don't need to find that their floor gusset is a floor extension in order to vacate the summary judgment order.

[00:09:10] Speaker 04:
Their gusset is also a floor panel extension because it is an extension that is separate from and not connected to another floor panel.

[00:09:19] Speaker 04:
And there's support in the specification.

[00:09:21] Speaker 04:
There are stiffener extensions.

[00:09:22] Speaker 04:
There are sidewall web extensions that don't touch.

[00:09:26] Speaker 04:
The sidewall web extension doesn't touch the sidewall web.

[00:09:29] Speaker 04:
The stiffener extension does not touch the stiffener.

[00:09:32] Speaker 04:
But those don't relate to the floor panel.

[00:09:34] Speaker 04:
Those relate to other components of the gondola car.

[00:09:39] Speaker 04:
Right.

[00:09:40] Speaker 04:
But the court's actual construction that says they can be separate was issued when both parties agreed that the term separate meant they don't have to touch.

[00:09:53] Speaker 03:
I wish you didn't double down on that, because that's very much not true.

[00:10:00] Speaker 03:
I'm not arguing they never conceded that the floor panel extension can be unconnected to the floor panel.

[00:10:11] Speaker 03:
That's not my argument.

[00:10:12] Speaker 03:
I apologize.

[00:10:13] Speaker 03:
You said it in the blue brief.

[00:10:15] Speaker 03:
You said it again in the gray brief.

[00:10:16] Speaker 03:
And now I had to hear you say it again.

[00:10:18] Speaker 03:
I really wish you hadn't said that.

[00:10:22] Speaker 04:
Let me try to explain what I'm saying.

[00:10:23] Speaker 04:
And maybe I'm not being clear.

[00:10:25] Speaker 04:
I'm not saying they conceded that it can be separate.

[00:10:29] Speaker 04:
We never said that.

[00:10:30] Speaker 04:
What we said is they conceded.

[00:10:31] Speaker 03:
You said it in your blue brief.

[00:10:32] Speaker 04:
We said they conceded the word separate means.

[00:10:38] Speaker 04:
Because it was our proposed construction that said separate.

[00:10:41] Speaker 04:
And they told the court.

[00:10:43] Speaker 04:
don't adopt that, because the word separate means they don't have to even touch.

[00:10:47] Speaker 04:
They clearly said that.

[00:10:47] Speaker 04:
They said it twice.

[00:10:49] Speaker 04:
They said that once in their briefing.

[00:10:50] Speaker 04:
They said it again on the reconsideration.

[00:10:52] Speaker 04:
They told the court, don't adopt the word separate in the construction, because that means they don't have to touch.

[00:11:00] Speaker 04:
But the court adopted the word separate.

[00:11:03] Speaker 03:
So our argument is that... We adopted the word separate in the context of what the specification says, and in fact it quotes at A46 how the extensions can be formed by trimming the floor panel stock such that the extensions are integral parts of the floor panel rather than being joined after the fact as just it's welded in place.

[00:11:24] Speaker 03:
So that's how they can be separate.

[00:11:26] Speaker 03:
They can be something that's separate, that's joined after the fact, and then welded in place.

[00:11:33] Speaker 03:
This is the context of what the court was getting at in terms of the meaning of the word separate.

[00:11:40] Speaker 03:
It doesn't have to be a completely integral thing, but it does ultimately have to be a unitary thing.

[00:11:46] Speaker 03:
It has to be connected to each other.

[00:11:47] Speaker 03:
And that seems like an eminently reasonable understanding of what a floor panel extension would be, vis-a-vis a floor panel.

[00:11:55] Speaker 03:
It would be extending from the floor panel.

[00:12:00] Speaker 04:
The word extension does not inherently mean they have to touch.

[00:12:02] Speaker 04:
And there's examples of that not in the context of the floor panel.

[00:12:07] Speaker 04:
But what the court has done is read limitations from the specification of the preferred embodiment.

[00:12:12] Speaker 04:
The claim language is just a floor, including one or more floor panels.

[00:12:16] Speaker 04:
Their gusset is a flat piece of steel parallel to the floor, welded to part of the floor.

[00:12:23] Speaker 04:
It's a floor panel.

[00:12:24] Speaker 03:
It's a side post gusset for supporting the side post.

[00:12:29] Speaker 04:
That's what they call it.

[00:12:30] Speaker 04:
But it's the same thing that's in the patent as a floor panel extension.

[00:12:34] Speaker 04:
It's welded to the floor, and it carries it.

[00:12:36] Speaker 04:
I'm well into my rebuttal time, so I'll save the rest of the time.

[00:12:39] Speaker 01:
OK, Council?

[00:12:40] Speaker 01:
Council, how do I pronounce your name?

[00:12:43] Speaker 04:
Van Esch.

[00:12:44] Speaker 01:
Mr. Van Esch.

[00:12:51] Speaker 02:
May it please the court, I'm Peter Van Ness on behalf of the Greenbrier Apolize.

[00:12:57] Speaker 02:
I'd like, Your Honor, to directly address a couple of questions that were raised in Council's remarks.

[00:13:04] Speaker 02:
First, there was a comment about the floor panel and the deck.

[00:13:08] Speaker 02:
And the parties had resolved, as explained at appendix pages 13 and 45, the floor panel and deck are to be given the same construction.

[00:13:17] Speaker 02:
I'd like to address the questions that

[00:13:19] Speaker 02:
Your Honor, Judge Chen, that you both asked about a floor panel versus a floor panel extension.

[00:13:26] Speaker 02:
The claim term, as this court observed, is floor panel.

[00:13:30] Speaker 02:
And the floor panel can have an extension.

[00:13:32] Speaker 02:
The claim term was not floor.

[00:13:34] Speaker 02:
The claim term was not floor extension.

[00:13:36] Speaker 02:
And NSC admits that a floor is not the same as a floor panel.

[00:13:41] Speaker 02:
NSC's expert.

[00:13:42] Speaker 02:
Mr. Selberg admitted that floor and floor panel are different and that floor was broader.

[00:13:47] Speaker 02:
And that's at appendix page 4834, paragraph 44.

[00:13:51] Speaker 02:
NSC's infringement theory also concedes that floor and floor panel are different.

[00:13:57] Speaker 01:
Well, the claim actually treats them separately, right?

[00:14:00] Speaker 01:
There's a floor limitation and a floor panel limitation.

[00:14:02] Speaker 02:
Absolutely.

[00:14:03] Speaker 02:
That's exactly right, Your Honor.

[00:14:05] Speaker 02:
Greenbrier's side postgusset is welded to a side sill.

[00:14:08] Speaker 02:
That's not in dispute.

[00:14:09] Speaker 01:
And nobody's argued that those terms should have the same meaning, have they?

[00:14:14] Speaker 01:
That floor and floor panel mean the same thing.

[00:14:17] Speaker 02:
No.

[00:14:18] Speaker 02:
No, they do not mean the same thing.

[00:14:19] Speaker 01:
OK.

[00:14:19] Speaker 01:
Next issue.

[00:14:20] Speaker 02:
OK.

[00:14:23] Speaker 02:
All right.

[00:14:24] Speaker 02:
Let me move on then.

[00:14:26] Speaker 02:
So a summary judgment should be affirmed on either of two bases.

[00:14:31] Speaker 02:
The first basis for affirmance would be that although NSC centered its infringement theory on Greenbrier's side post-gusset, NSC does not present any evidence that the side post-gusset or any other structure was a floor panel extension.

[00:14:46] Speaker 02:
And the second independent basis for affirmance relates to NSC's arguments about touching and use of the word separate in the court's construction.

[00:14:56] Speaker 02:
Again, it's undisputed that Greenbrier's side post-gusset doesn't touch a floor panel.

[00:15:03] Speaker 02:
But the claims, as properly construed, require that the extension of the floor panel touch the floor panel.

[00:15:11] Speaker 02:
Therefore, Greenbrier's side post-gusset cannot be an extension of the floor panel.

[00:15:17] Speaker 00:
Council, am I correct that there was no doctrine of equivalence theory being advanced here by the NSC?

[00:15:26] Speaker 00:
That's correct.

[00:15:27] Speaker 02:
That's correct, Your Honor.

[00:15:29] Speaker 02:
I'd like to address counsel's argument that NSC recognizing that it didn't have evidence of a floor panel extension has created what says is a claim construction argument here.

[00:15:44] Speaker 02:
And the new claim construction argument is that a floor panel extension can be an extension of something other than the floor panel, which we think is wrong.

[00:15:52] Speaker 02:
And that argument is also waived.

[00:15:55] Speaker 02:
And we discussed why that argument is wrong.

[00:15:57] Speaker 02:
The term construed was floor panel.

[00:15:59] Speaker 02:
The plain and ordinary meaning of extension extends.

[00:16:02] Speaker 02:
The part is extending from the item that it's attached to.

[00:16:05] Speaker 02:
The district court cited a dictionary definition of the plain and ordinary meaning of extension.

[00:16:11] Speaker 02:
And in any event, an extension has to touch the item that it's extending.

[00:16:17] Speaker 02:
Patent specification figures describe that.

[00:16:21] Speaker 02:
Regarding waiver, this argument is waived because NSC didn't make this argument during claim constructions.

[00:16:28] Speaker 02:
And when I say this argument, I mean the argument that the term extension can be an extension of something other than the floor panel.

[00:16:35] Speaker 02:
That argument's waived because it was first raised in the second of NSC's two supplemental summary judgment briefs, at which point it was too late.

[00:16:48] Speaker 02:
I'd like to address

[00:16:50] Speaker 02:
Council's argument that Greenbrier agreed somehow that the floor panel extension and floor extension were the same.

[00:17:02] Speaker 02:
The difference in the use of the terminology of floor panel extension were because NSC's original infringement theory treated the floor and the floor panel as coextensive.

[00:17:15] Speaker 02:
So the terms floor and floor panel

[00:17:18] Speaker 02:
were used interchangeably because there was no reason to distinguish between, at that time, a floor and a floor panel.

[00:17:24] Speaker 02:
And in those instances when the parties used the term floor extension, they were referring to the specifications discussion of a floor panel extension.

[00:17:35] Speaker 02:
And then after claim construction, NSC changed its infringement theory regarding what was a floor and what was a floor panel.

[00:17:42] Speaker 02:
And that's when NSC said that the horizontal

[00:17:46] Speaker 02:
leg of the side sill that the side post gusset is attached to, NSC said that is not, they conceded, that is not a floor panel.

[00:17:55] Speaker 02:
They said it was a floor.

[00:17:56] Speaker 02:
So in response to NSC's change theory, Greenbrier explained why its side post gusset was not a floor panel extension.

[00:18:06] Speaker 02:
And then once the issues became crystallized and as a result of NSC changing its theory, everyone became more precise in their use of the terminology

[00:18:16] Speaker 03:
Was there ever an argument that the horizontal portion of the side sill is the floor panel extension?

[00:18:22] Speaker 02:
No.

[00:18:23] Speaker 03:
No, Your Honor.

[00:18:26] Speaker 02:
As a matter of fact, NSC and its experts only ever said the side post gusset was allegedly an extension of the floor.

[00:18:41] Speaker 02:
And they never said,

[00:18:43] Speaker 02:
that the side post gusset was a floor panel extension, whether or not a floor panel extension touches the floor.

[00:18:50] Speaker 02:
In other words, NSC didn't argue that the side post gusset was an example of a touching or a non-touching floor panel.

[00:18:59] Speaker 02:
Even in NSC's reply brief, its final say on the infringement issues at pages 31 and 32, NSC argues only that the side post gusset is what NSC calls a floor extension.

[00:19:13] Speaker 02:
a true extension of the floor or a functional extension of the floor.

[00:19:18] Speaker 02:
And that, Your Honor, is not the relevant claim limitation, which is floor panel.

[00:19:25] Speaker 02:
I'd like to turn to what NSC calls its second issue, where NSC focuses on the language separate in the court's construction and argues that as a matter of claim construction, the floor panel extension need not touch the floor panel.

[00:19:43] Speaker 02:
I'd like to discuss claim construction.

[00:19:47] Speaker 02:
The extension of the floor panel must touch the floor panel.

[00:19:51] Speaker 02:
And again, the district court construed the term floor panel, said it could have an extension that was integral or separate.

[00:19:59] Speaker 02:
And at the outset, I want to say that NSC was fundamentally wrong in its assertion that because the word separate was in the claim construction,

[00:20:11] Speaker 02:
that meant that the floor panel extension didn't have to touch the floor panel.

[00:20:18] Speaker 02:
The word separate doesn't mean touching or not touching because that term can refer to things that are either touching

[00:20:25] Speaker 02:
or not touching.

[00:20:26] Speaker 02:
For example, consider states.

[00:20:28] Speaker 02:
Virginia and Maryland are separate states.

[00:20:31] Speaker 02:
They touch.

[00:20:32] Speaker 02:
Virginia and New York are separate states.

[00:20:35] Speaker 02:
They don't touch.

[00:20:36] Speaker 02:
And the point is, just because two items can be separate doesn't mean they're not touching.

[00:20:42] Speaker 02:
And the court construed the floor panel can have an extension.

[00:20:46] Speaker 02:
The integral are separate.

[00:20:48] Speaker 02:
And the court explained that meant integrally formed or cut separately

[00:20:54] Speaker 02:
and joined after the fact to the floor panel.

[00:20:57] Speaker 02:
And so touching between the extension and the floor panel is required, whether the extension is integral or separate.

[00:21:07] Speaker 02:
Now, an NSC admitted at claim construction that the issue that the court was resolving at claim construction was how

[00:21:22] Speaker 02:
the extension of the floor panel could actually be connected, not whether it could or could not be connected.

[00:21:29] Speaker 02:
And we discussed that at page 21 of our brief, that NSC made those arguments at claim construction.

[00:21:36] Speaker 02:
And in addition, that appendix page 1871, lines 8 through 9, which is from the court's claim construction transcript of that hearing, NSC counsel told the district court that the real dispute

[00:21:51] Speaker 02:
is how the pieces can be connected.

[00:21:55] Speaker 02:
So the arguments that NSC made a claim construction were that the floor panel extension touches the floor panel.

[00:22:01] Speaker 02:
NSC, again, said it could be integral or separate.

[00:22:04] Speaker 02:
And NSC said integral was to cover an extension formed integrally.

[00:22:10] Speaker 02:
In contrast to that was separate, which was to cover a floor panel extension formed separately and later joined in place.

[00:22:18] Speaker 02:
And NSC explained in its briefing that that could be either by a butt joint or a lap joint.

[00:22:25] Speaker 02:
But in all cases, the extension was touching.

[00:22:28] Speaker 02:
And NSC didn't argue and certainly presented no cognizable argument at claim construction that the floor panel extension could be not touching or not extend from the floor panel.

[00:22:42] Speaker 02:
And nor, by the way, did NSC argue at claim construction

[00:22:46] Speaker 02:
that by putting the word separate in the construction, it meant not touching.

[00:22:52] Speaker 01:
Is there anything further?

[00:22:55] Speaker 02:
No, nothing further, Your Honor.

[00:22:56] Speaker 01:
OK, thank you very much, Your Honor.

[00:23:12] Speaker 04:
Judge Tenney.

[00:23:16] Speaker 04:
come down pretty hard on me for statements we made in our group.

[00:23:20] Speaker 04:
I'm going to take one more attempt.

[00:23:22] Speaker 04:
I hope I'm not belaboring this too hard, but I feel like I do need to respond.

[00:23:28] Speaker 04:
And this is also in response to what counsel just said about what we argued at the claim construction hearing and what the word separate means.

[00:23:40] Speaker 04:
So in November of 2020, this is Appendix 326,

[00:23:44] Speaker 04:
in Greenbrier's claim construction brief.

[00:23:47] Speaker 04:
Greenbrier told the district court, NSC's construction uses the word separate to describe non-integral floor extensions, allowing the floor extensions to be unconnected to the rest of the floor panel.

[00:24:03] Speaker 04:
So they knew that our proposed construction, when it used the word separate, included non-touching

[00:24:11] Speaker 04:
within the scope of the plain meaning separate.

[00:24:13] Speaker 04:
And that's supported by his example he just gave, is that there can be two states that are separate that don't touch.

[00:24:19] Speaker 04:
The plain meaning of the word separate includes things that touch.

[00:24:23] Speaker 04:
It also includes things that don't touch.

[00:24:27] Speaker 04:
Almost a year later, in August of 2021, this is Appendix 2524, Greenbrier told the district court in response to our motion for reconsideration

[00:24:39] Speaker 04:
which is the motion that led the court to put the word separate into its claim construction.

[00:24:45] Speaker 04:
Greenbrier said, quote, under NSC's erroneous proposal, so they are not agreeing with our claim construction.

[00:24:51] Speaker 04:
We're not arguing they agreed with our claim construction.

[00:24:54] Speaker 04:
But they agreed that even components that are not in contact with IE that are separate from the floor sheet may be deemed a floor panel extension.

[00:25:05] Speaker 04:
So Greenbrier knew that the word separate in our proposed construction included non-touching.

[00:25:10] Speaker 03:
The fact remains that what the district court did was it replaced the word abutting from the opposing council's proposed construction with separate.

[00:25:21] Speaker 03:
And it did that in the context to make clear that the connection that would be required of a floor extension to a floor panel

[00:25:29] Speaker 03:
didn't have to be a specific type of connection, i.e.

[00:25:33] Speaker 03:
abutting.

[00:25:34] Speaker 03:
It could be other types of connection as well.

[00:25:37] Speaker 03:
And that's what the whole debate was about with respect to the term abutting.

[00:25:41] Speaker 04:
The debate was about abutting because we all agreed, both parties agreed and told the court that the word separate

[00:25:49] Speaker 04:
includes non-touching.

[00:25:50] Speaker 04:
So that was agreed.

[00:25:52] Speaker 04:
We were focused on the dispute.

[00:25:54] Speaker 04:
And their construction was too narrow because they were requiring a butting and butt welds.

[00:26:01] Speaker 04:
But my point is the court's claim construction, the actual claim construction issued by the court, simply says extensions and simply says they can be separate and does not say that separate requires touching and does not say that they have to be floor panel extensions.

[00:26:18] Speaker 04:
I don't think it's debatable that the court then modified that implicitly in its summary judgment order to require two additional limitations after our expert reports were already filed, after all the discovery was done.

[00:26:30] Speaker 04:
If we disagree with you on that, then do we affirm?

[00:26:35] Speaker 04:
Disagree that the court changed its claim construction?

[00:26:38] Speaker 04:
That's right.

[00:26:41] Speaker 03:
Not necessarily.

[00:26:42] Speaker 03:
In the context of what it said and what accorded from the spec at 846 in its original Markman order.

[00:26:47] Speaker 03:
And then on recon, it modified the construction that all along it was understood that an extension has to actually be connected to a floor panel sheet.

[00:26:59] Speaker 04:
But we would still maintain the court's construction then as interpreted as incorrect.

[00:27:05] Speaker 04:
Now, I know we proposed that as an alternative.

[00:27:08] Speaker 04:
because the court had already decided that they wanted to include a plurality of sheets as opposed to a broader term for these floor panels.

[00:27:16] Speaker 04:
And so we said, well, if the court is not going to change its mind on sheet, at the very least, we need them to be separate.

[00:27:26] Speaker 04:
And so yes, we did propose this construction.

[00:27:29] Speaker 04:
But we proposed it in the context that everybody understood extensions could be floor extensions, which was their proposed construction.

[00:27:36] Speaker 04:
And we proposed it in the context

[00:27:37] Speaker 04:
that separate could be non-touching, which the parties both understood that word to mean.

[00:27:44] Speaker 04:
And so I don't think it'd be fair to hold us to that claim construction, which in the parties' minds was very clear when we proposed that alternative construction.

[00:27:55] Speaker 01:
OK, Mr. Lovell, you're way past your time.

[00:27:57] Speaker 01:
So we're going to have to conclude this argument.

[00:27:59] Speaker 01:
Thank both counsel.

[00:28:00] Speaker 01:
The case is taken under submission.