[00:00:00] Speaker 04:
Our second case this morning is number 23, 24, 26, SME Steel Contractors versus Sizonic Placing Company.

[00:00:08] Speaker 04:
Okay, Mr. Eisenberger, is that how you pronounce it?

[00:00:14] Speaker 03:
Good morning, Your Honors, and may it please the Court, Michael Eichsenberger on behalf of the Appellants.

[00:00:19] Speaker 03:
This Court should reverse the District Court for two primary reasons.

[00:00:22] Speaker 03:
First, the District Court committed the cardinal sin of importing limitations into its construction of the terms position between and form between.

[00:00:31] Speaker 03:
Second, this Court should reverse the Lanham Act, the District Court's granting of summary judgment on the Lanham Act and copyright claims because genuine issues of material fact

[00:00:43] Speaker 03:
prevent the court from granting summary judgment on those claims.

[00:00:46] Speaker 03:
Turning first to the claim limitation issue, the district court construed the terms form between and position between to mean spans the distance between.

[00:00:58] Speaker 01:
Just as a Housekeeping Mayor, do you agree that position between and form between have the same meaning in this case?

[00:01:04] Speaker 03:
It's our position that they have the same meaning in this case.

[00:01:07] Speaker 03:
And both should be construed to have their plain and ordinary meaning of both terms, which just requires that the air gap be formed or positioned somewhere between the bearing member and the core member.

[00:01:22] Speaker 01:
What's your best intrinsic support for an air gap that spans less than the full distance between the core and the bracing member?

[00:01:29] Speaker 03:
Sure, I think there are multiple points.

[00:01:32] Speaker 03:
One is the intended purpose of the air gap.

[00:01:35] Speaker 03:
First, the intended purpose is to prevent bonding and also to prevent or minimize contact between the bearing member and the core member.

[00:01:46] Speaker 03:
So as long as there is an air gap, it can achieve that.

[00:01:52] Speaker 03:
And with respect to the intrinsic evidence, if you look at Figure 4, which is on

[00:01:58] Speaker 03:
page 151 of the appendix there are multiple bearing members that are interposed between the cementitious material and the core member and the reason that that's critical here is because in terms of claim language one what we talk about is a bearing member that is up against the cementitious material it's what retains the cementitious material and so in terms of claim one

[00:02:26] Speaker 03:
The critical point of reference is the outermost bearing member.

[00:02:32] Speaker 03:
That outermost bearing member, if there's another bearing member interposed between that, the air gap necessarily can't span the entire distance between the outermost bearing member and the core member.

[00:02:48] Speaker 03:
And so in terms of intrinsic support, Your Honor, it's the purpose, the functional purpose,

[00:02:54] Speaker 03:
which can be accomplished if there are, for example, multiple air gaps.

[00:02:58] Speaker 03:
Or also, as indicated in Figure 4, that we can have multiple air gaps where the claim language refers to the outermost bearing member.

[00:03:08] Speaker 04:
Yeah, but that sounds very much as though you're trying to do a new claim construction, whereas you say that it's plain and ordinary meeting.

[00:03:19] Speaker 04:
So there's a problem with that, right?

[00:03:22] Speaker 04:
You didn't ask for claim construction.

[00:03:24] Speaker 04:
Now, effectively, you're asking for claim construction by pointing us to the patent and arguing various figures and statements in there.

[00:03:34] Speaker 04:
We can't, at this point, consider that when you didn't ask for claim construction earlier, right?

[00:03:41] Speaker 03:
Well, so all we ask is that the court construe the terms bearing member

[00:03:47] Speaker 03:
Excuse me, form between and position between to have their plain and ordinary meaning.

[00:03:52] Speaker 04:
Okay, but plain and ordinary meaning doesn't mean that the jury doesn't claim construction.

[00:03:59] Speaker 04:
It means that we take it on face value.

[00:04:03] Speaker 03:
Yes, Your Honor, and here the face value of position between and formed between

[00:04:10] Speaker 03:
It does not require, as the district court construed, to span the distance between.

[00:04:15] Speaker 03:
For example, in our brief we had the analogy of a ham sandwich.

[00:04:21] Speaker 03:
A piece of ham is between, formed between, or positioned between the two pieces of bread.

[00:04:28] Speaker 03:
And that remains the case even if a piece of lettuce or a piece of tomato is put between the two.

[00:04:34] Speaker 03:
It doesn't necessarily require that the piece of ham spans the entire distance

[00:04:40] Speaker 03:
between the two pieces of bread.

[00:04:42] Speaker 03:
And so what we're asking for is for this court to reverse.

[00:04:46] Speaker 04:
Where's the air gap here?

[00:04:48] Speaker 04:
There's a piece of cardboard between the bracing member and the court.

[00:04:54] Speaker 04:
There's no air gap on either side of the cardboard, right?

[00:04:59] Speaker 04:
Your Honor, the air gap.

[00:05:01] Speaker 04:
Correct, right?

[00:05:01] Speaker 04:
There's no air gap on either side of the cardboard.

[00:05:07] Speaker 03:
There is no air gap on either side of the cardboard, because the cardboard, it goes around.

[00:05:13] Speaker 03:
So you're saying the air gap is in the cardboard?

[00:05:16] Speaker 03:
Correct, Your Honor.

[00:05:17] Speaker 03:
The air gap is within the cardboard.

[00:05:19] Speaker 03:
And again, the district court, based off of its interpretation of spans the distance between, found that there was no, that the claims limitations were not satisfied.

[00:05:32] Speaker 03:
But if we look at a piece of cardboard, for example, it has an outermost layer.

[00:05:37] Speaker 03:
a lower layer, and corrugations between.

[00:05:41] Speaker 03:
Well, within each of those corrugations is an air gap.

[00:05:46] Speaker 03:
There is a void between the cardboard in the sense that it has a top piece, a bottom piece, and the corrugation.

[00:05:54] Speaker 03:
And so what we're saying is each one of those voids or air gaps between the corrugations, because there is a void there within the corrugations, that is the air gap

[00:06:07] Speaker 03:
And the court found that it is not an air gap because the air gap doesn't literally span the entire distance to the core member because there's that bottom layer of the cardboard.

[00:06:21] Speaker 03:
And so the concern we have is essentially the claims were found to be not infringed based off the thickness of that bottom layer of cardboard because the air gap doesn't literally span the distance between the top layer

[00:06:36] Speaker 03:
of the cardboard, which we're calling our bearing member, and the core member.

[00:06:41] Speaker 03:
And so the concern we have here is there's nothing intrinsically in the patent itself that requires this limitation, that it spans the distance between.

[00:06:53] Speaker 02:
Just out of curiosity, the prior art included having asphaltic rubber between, right, which

[00:07:02] Speaker 02:
a porous material with air gaps in it, right?

[00:07:05] Speaker 02:
So if we agree with you, then wouldn't that anticipate?

[00:07:09] Speaker 03:
I think, well, first of all, Your Honor, I don't believe that in this case, the defendant didn't challenge the validity of the patent.

[00:07:20] Speaker 02:
Well, it will if we agree with you.

[00:07:22] Speaker 02:
It will on remand if we agree with you, right?

[00:07:24] Speaker 02:
I mean, so you're saying any type of air gap in whatever material spans the distance, that would qualify.

[00:07:30] Speaker 03:
And so what we're looking for here is an air gap that spans the distance between the core member and the bearing member.

[00:07:37] Speaker 03:
And the difference with the asphaltic rubber layer, whether or not that rubber layer will have an air bubble or not, I don't think is in the record before the court.

[00:07:48] Speaker 03:
But the difference between the two is in the 680 patent, we have an air gap that creates separation between the cementitious material that

[00:08:00] Speaker 03:
and decor.

[00:08:02] Speaker 03:
In the prior art, one was asphalted rubber.

[00:08:05] Speaker 03:
Asphaltic rubber is essentially coating the core that prevents the concrete from then coming into contact with the core.

[00:08:13] Speaker 02:
I wasn't trying to get off on a side note about stuff that wasn't in the record.

[00:08:16] Speaker 02:
I'm just sort of trying to figure out the limits to your argument that what type of air gap qualifies, right?

[00:08:22] Speaker 02:
So we can add more words onto the construction and say any type of air gap qualifies.

[00:08:26] Speaker 02:
But that's not what you're saying.

[00:08:28] Speaker 02:
Not any type of air gap qualifies.

[00:08:30] Speaker 02:
It has to be one that what?

[00:08:31] Speaker 03:
In this case, the district court construed air gap to be an unfilled space or interval.

[00:08:39] Speaker 03:
So that is the term that the court has adopted.

[00:08:42] Speaker 03:
We're not challenging that term on appeal.

[00:08:45] Speaker 03:
What the focus of ours is, is position between.

[00:08:49] Speaker 03:
And what the claims require is they require the outermost bearing number.

[00:08:54] Speaker 04:
So you're saying that, let's say there's a one inch gap.

[00:08:59] Speaker 04:
And we're talking about a piece of cardboard in between, that a one-inch gap between one piece of corrugation material on the left and another piece of corrugation material on the right constitutes an air gap, even though that air gap doesn't extend the whole length of the core.

[00:09:26] Speaker 03:
It doesn't extend the whole length along the transverse length of the core.

[00:09:33] Speaker 04:
It does any inch, millimeter, anything, any small air gap between the top piece and the bottom piece is sufficient even though it's only in that very limited area between the very member of the core.

[00:09:47] Speaker 03:
And that's what we're focusing on here because... And that's your position, right?

[00:09:51] Speaker 03:
It's our position that

[00:09:53] Speaker 03:
The claims require, if we look at it cross-sectionally, if the BRB is cut in half, we're looking at whether there's an air gap between the outermost bearing member and the core member.

[00:10:10] Speaker 03:
The district court in adopting spans the distance between focused first on the functionality and said that an air gap can't

[00:10:19] Speaker 03:
achieve the functionality if it doesn't span the distance between the entire distance.

[00:10:24] Speaker 03:
As mentioned, as long as there is a air gap, also as indicated in Figure 4, where we have multiple bearing members and multiple air gaps, the function is achieved.

[00:10:34] Speaker 03:
In terms of the figures, the district court also said there's no figure that shows a bearing member or an air gap that spans the entire distance.

[00:10:44] Speaker 03:
And the concern we have with that first is the claims aren't limited under Phillips to what's depicted in the embodiments.

[00:10:54] Speaker 03:
We're entitled to the plain and ordinary meaning of position between and form between.

[00:10:58] Speaker 03:
And as this court has noted in Rexnard, for example, the patentee is entitled to the plain and ordinary meaning, and the mere fact that they don't depict every potential embodiment does not mean that they're not entitled to the full claim scope.

[00:11:15] Speaker 01:
I was going to turn to different claims.

[00:11:18] Speaker 04:
I've got to say, I don't understand how a one millimeter air gap

[00:11:23] Speaker 04:
between the bearing member and the core, in a very limited part of this, serves the purposes of the patent.

[00:11:29] Speaker 04:
I mean, really, how does that work?

[00:11:35] Speaker 03:
And so, again, in this case, what we're looking at is whether there's an air gap.

[00:11:40] Speaker 04:
No, but in terms of the breadth of your construction, you're saying that any air gap, no matter how small, satisfies the climate limitation.

[00:11:49] Speaker 04:
It seems to me

[00:11:50] Speaker 04:
that's a hard sell because a tiny air gap doesn't serve the purpose of the invention.

[00:11:57] Speaker 03:
And so maybe I misunderstood your point when we're talking about, for example, the defendant's device here.

[00:12:07] Speaker 03:
The cardboard obviously has multiple air gaps in the sense that there are corrugations.

[00:12:13] Speaker 04:
Well here it does, but I was asking a hypothetical.

[00:12:16] Speaker 04:
If it was just a one millimeter single air gap, you're saying that's enough.

[00:12:20] Speaker 04:
I don't understand.

[00:12:23] Speaker 01:
We can move to the... Yeah, I want to talk about false advertising before your time runs out on us here.

[00:12:30] Speaker 01:
So help me understand, at least in terms of

[00:12:34] Speaker 01:
what sort of presumptions you think may be applicable here.

[00:12:39] Speaker 01:
What is the difference between what I'm going to call the two-comparator market presumption that might occur and the intentional deception presumption?

[00:12:47] Speaker 01:
And do you believe that you need both presumptions to apply in order for you to win with respect to this argument?

[00:12:53] Speaker 03:
No, Your Honor.

[00:12:54] Speaker 03:
There are multiple presumptions.

[00:12:56] Speaker 03:
presumptions at play.

[00:12:57] Speaker 03:
The first is whether the statements are literally false.

[00:13:00] Speaker 03:
It's our contention that at least two are.

[00:13:02] Speaker 03:
So under Zoller, there's a presumption there.

[00:13:05] Speaker 01:
Under the two competitor market... Does it require literal falsity or is misleading enough in terms of the Lanham Act claim that you're bringing?

[00:13:17] Speaker 03:
It needs to be literally false for the presumption on literal falsity.

[00:13:21] Speaker 03:
But for the two markets... Hold on.

[00:13:23] Speaker 01:
You said literally false for a presumption on literal falsity.

[00:13:28] Speaker 01:
But I don't understand that sentence.

[00:13:30] Speaker 01:
Maybe I speak too fast.

[00:13:32] Speaker 01:
But you just said literally false for a presumption on literally false.

[00:13:34] Speaker 01:
It's not like you're saying A equals A. Sure.

[00:13:37] Speaker 03:
So when an advertisement is literally false, there's no need to prove customer confusion.

[00:13:42] Speaker 03:
So that's the first presumption.

[00:13:43] Speaker 03:
The second is if there's two competitors in the market,

[00:13:46] Speaker 03:
That also in and of itself gives us the presumption.

[00:13:50] Speaker 03:
There are two competitors in the market in this case.

[00:13:55] Speaker 04:
I'm into my rebuttal time so I will...

[00:14:04] Speaker 04:
So which case says the two competitors are enough?

[00:14:09] Speaker 04:
Is that the vitamins case?

[00:14:10] Speaker 03:
So in the vitamins case, if there is two competitors in the market... What language?

[00:14:17] Speaker 03:
Sure.

[00:14:22] Speaker 03:
What page are we talking about?

[00:14:24] Speaker 03:
240.

[00:14:35] Speaker 03:
So in vitamins, it talks about plaintiffs and defendants are the only two figures.

[00:14:38] Speaker 04:
Do you have the PedForth page?

[00:14:41] Speaker 03:
Well, maybe you can do it on the right.

[00:15:00] Speaker ?:
Yep, let me do it.

[00:15:00] Speaker ?:
Thank you.

[00:15:06] Speaker 02:
So you say that the statement about their capacity to produce is literally false.

[00:15:18] Speaker 02:
How could that statement possibly have caused you any images?

[00:15:23] Speaker 03:
And my time's expired, may I answer the question?

[00:15:26] Speaker 03:
Yeah, go ahead.

[00:15:27] Speaker 03:
You're still up.

[00:15:29] Speaker 03:
So it caused us damage because it goes to their capabilities.

[00:15:35] Speaker 03:
When there's two companies bidding for what can be

[00:15:40] Speaker 03:
provided on a project, their ability to deliver on that project is critical.

[00:15:45] Speaker 03:
But more importantly, under the case law, if it's literally false, we don't need to show that it actually harmed us.

[00:15:53] Speaker 03:
It's simply that it is literally false.

[00:15:57] Speaker 03:
And that ends the inquiry.

[00:15:59] Speaker 03:
Well, it creates a presumption.

[00:16:02] Speaker 03:
It creates a presumption.

[00:16:03] Speaker 03:
Right.

[00:16:03] Speaker 03:
Exactly.

[00:16:04] Speaker 03:
Right.

[00:16:06] Speaker 02:
Let me ask you about the other literal call, literally false claim.

[00:16:09] Speaker 02:
You say that they said that they were tested and qualified when there was a report from the university that said they weren't.

[00:16:20] Speaker 02:
And that statement that they were tested and qualified, that was in the design manual.

[00:16:27] Speaker 02:
Did I read the record wrong or is the report from the university that says that two of them failed also in the design manual?

[00:16:34] Speaker 03:
It is also in the design manual, Your Honor.

[00:16:36] Speaker 02:
So the evidence that you say contradicts their statement was also in the same manual you said that had the false statement?

[00:16:42] Speaker 03:
Correct.

[00:16:43] Speaker 03:
But the design manual is obviously a 90-page document.

[00:16:48] Speaker 03:
And on the first page, where they have the critical language at issue here, that their patented methods have been tested and qualified for use in accordance with governing building codes.

[00:16:58] Speaker 03:
That language is literally false in the sense that not all their braces had passed.

[00:17:10] Speaker 03:
Buried at the end of the document, if somebody were to look past the initial statement, the initial statement that says our patented methods have been tested and qualified for use in accordance with governing building codes, and they had ignored that statement and then looked into the remainder of the manual,

[00:17:27] Speaker 03:
then yes, there is a statement that you can see what the outcome is, but they claimed in the preparatory language a statement that's false.

[00:17:37] Speaker 04:
Okay, I think we're out of time.

[00:17:38] Speaker 04:
We'll give you two minutes or a bubble.

[00:17:40] Speaker 04:
Mr. Swanson.

[00:17:57] Speaker 00:
Good morning, Your Honors.

[00:17:58] Speaker 00:
May it please the court, my name is Scott Swanson for Appellee's Seismic Bracing Company in Andrew Hinchman.

[00:18:06] Speaker 00:
This case focuses on the district court's correct claim construction and correct dismissal of each of the claims of patent infringement under the Lanham Act, the copyright law, and the state unfair competition claims.

[00:18:21] Speaker 00:
I would like to begin addressing the

[00:18:25] Speaker 00:
Appellant's argument regarding figure four of the patent.

[00:18:29] Speaker 00:
I don't believe that this figure was previously argued before their reply, but if it was, it's fine.

[00:18:34] Speaker 04:
We have a problem.

[00:18:35] Speaker 04:
I mean, this is sounding like claim construction rather than plain and ordinary meaning.

[00:18:40] Speaker 04:
Go ahead.

[00:18:42] Speaker 00:
OK.

[00:18:44] Speaker 00:
Well, I think the district court's claim construction was correct, and I agree we haven't argued for a new claim construction.

[00:18:52] Speaker 00:
The main purpose was that I was going to point out that in describing the bearing members in Figure 4, at Appendix 0158, the specification of the 680 patent states

[00:19:14] Speaker 00:
that yet another air gap is positioned between the bearing members.

[00:19:18] Speaker 00:
It doesn't say it's positioned between the core and the bearing members as they're advocating and describing their figure.

[00:19:24] Speaker 02:
Well, if this wasn't raised before, we don't even have an assessment by the lower court about whether Figure 4, which is an alternative embodiment, is even meant to be encompassed by Claim 1, right?

[00:19:37] Speaker 00:
I agree.

[00:19:41] Speaker 00:
Everything in the specification illustrates that there is an air gap that extends between the bearing member and the core.

[00:19:55] Speaker 00:
And the claims state that this claims either use form between or position between.

[00:20:04] Speaker 00:
Now, a plain and ordinary meaning of the terminology form between when it states that the core

[00:20:11] Speaker 00:
and the bearing member are separated apart such that the air gap is formed between them.

[00:20:17] Speaker 00:
To me, this implies functional language, that it has to be spaced apart to be formed.

[00:20:23] Speaker 00:
And my client's device only has cardboard in between the core and the bearing member.

[00:20:30] Speaker 00:
As the district court.

[00:20:32] Speaker 01:
How do you respond to opposing counsel's argument that the air gap is within the cardboard and it's still serving the intended purpose?

[00:20:42] Speaker 00:
A, they have not brought up a doctrine of equivalence argument.

[00:20:45] Speaker 00:
And B, we don't believe this literally infringes because it states that the error gap is formed between the core and the bearing member, or that they are positioned apart, that the core and the bearing member are adjacent, and the error gap is positioned between them.

[00:21:05] Speaker 00:
And in neither instance is cardboard spanning between the

[00:21:12] Speaker 00:
bearing number and the core, an air gap.

[00:21:19] Speaker 00:
I think that the appellant specifically addressed this in the prosecution history in distinguishing the Kakeuchi patent and stating that an air gap plus a film would defeat the purpose of the air gap and the film.

[00:21:40] Speaker 00:
Thus, if there is

[00:21:41] Speaker 00:
If the air gap does not span the distance between these, it does not meet the requirements of the claim language.

[00:21:58] Speaker 00:
Turning to the Lanham Act claims.

[00:22:01] Speaker 02:
You're standing for those claims.

[00:22:04] Speaker 02:
Wasn't that a mistake to break this in terms of standing as opposed to just saying it was on the merit?

[00:22:10] Speaker 00:
Yes, I think Lexmark states at the last paragraph of the decision that to prove standing, they have to make a claim in the complaint that provides standing to proceed.

[00:22:22] Speaker 00:
And then at the end, they have to produce evidence.

[00:22:25] Speaker 00:
So I think what it is is there should be evidence here of damages.

[00:22:30] Speaker 00:
And there is no evidence of damages.

[00:22:32] Speaker 02:
So even if we disagreed about standing,

[00:22:34] Speaker 02:
we could affirm on the basis that no reasonable jury could find that there were damages.

[00:22:41] Speaker 00:
Correct, Your Honor.

[00:22:42] Speaker 00:
Yes, this is a Rule 56 decision as opposed to Rule 12.

[00:22:48] Speaker 00:
Looking at the statements, my client was the chief engineer for the appellants for multiple years.

[00:22:59] Speaker 00:
He was involved in all of these cases.

[00:23:04] Speaker 00:
are in all of these projects.

[00:23:06] Speaker 00:
It doesn't ever state that SBC itself did any of these projects.

[00:23:18] Speaker 00:
None of these are false.

[00:23:22] Speaker 04:
Well, they're only contending that two of them are false, right?

[00:23:25] Speaker 04:
The production capacity can't be tested and qualified.

[00:23:31] Speaker 00:
Correct.

[00:23:32] Speaker 04:
So why don't you address those two?

[00:23:34] Speaker 00:
The production capacity of my client subcontracted out with steel fabricators, but the braces were still being produced by his company and delivered by his company under his company's name.

[00:23:51] Speaker 00:
Thus, they were being produced.

[00:23:53] Speaker 00:
And he had the capacity through using these independent contractors to produce, in essence, as many braces as he wanted to.

[00:24:04] Speaker 00:
by hiring more third parties.

[00:24:07] Speaker 00:
And there isn't any evidence at all on the record that those statements were false.

[00:24:22] Speaker 00:
And turning to the claim that the braces did not pass inspection, three of the braces sizes had passed the university testing.

[00:24:32] Speaker 00:
And thus, my client was fully qualified to produce those.

[00:24:36] Speaker 00:
The two smaller size braces did not pass.

[00:24:40] Speaker 00:
I don't think this is on the record, but they have now.

[00:24:42] Speaker 00:
But they were qualified to produce the three braces.

[00:24:48] Speaker 00:
And this was all set forth, as Judge Hall stated, at the actual testing results that were provided in the manual.

[00:25:00] Speaker 00:
There is no evidence, no facts on the record that anyone considered any of these allegedly false allegations in giving my client any projects or awarding him any bids.

[00:25:15] Speaker 00:
And thus, they haven't been harmed.

[00:25:18] Speaker 00:
The appellants haven't been harmed.

[00:25:21] Speaker 01:
About kind of following up on the question I asked opposing counsel, I understand the statements and arguments that are being made with respect to literal falsity.

[00:25:29] Speaker 01:
But what about something being misleading in terms of the way that it was being provided?

[00:25:35] Speaker 01:
Could there have been harm associated with misleading statements?

[00:25:40] Speaker 00:
The appellants would have had to prove harm, is my reading of the case law.

[00:25:45] Speaker 00:
And they didn't prove any harm because they didn't provide any evidence of anyone actually using any of these statements to award any bid.

[00:25:56] Speaker 04:
So what do you understand that it ought to be?

[00:25:59] Speaker 04:
If there's a two competitor market, what do you have to show in addition to that to get a presumption of injury?

[00:26:07] Speaker 00:
It would have to show literal falsity and prove the two competitor market.

[00:26:15] Speaker 01:
And what are you basing that showing on?

[00:26:18] Speaker 01:
Like, where exactly in the case law are you basing that as the test you were saying is applicable?

[00:26:24] Speaker 00:
I believe that's in the vitamins case.

[00:26:27] Speaker 00:
Where?

[00:26:29] Speaker 00:
That I don't recall off the top of my head.

[00:26:32] Speaker 01:
I apologize.

[00:26:33] Speaker 01:
Do you have the case with you?

[00:26:36] Speaker 00:
On my computer.

[00:26:42] Speaker 01:
Do you recall any place where vitamins online says you need to show literal falsity?

[00:26:51] Speaker 00:
I believe it stated it was either literal or

[00:26:54] Speaker 00:
literal falsity or an intentional intent to deceive.

[00:27:03] Speaker 04:
Has intentionality been argued here?

[00:27:11] Speaker 00:
I don't believe so.

[00:27:27] Speaker 01:
Wasn't intentionality argued both at the district court and here?

[00:27:30] Speaker 01:
You don't think it was?

[00:27:32] Speaker 00:
I think they argued that intentionality was presumed because it was the only way they thought he could get a job.

[00:27:40] Speaker 00:
But I don't think that there was ever any citation to any evidence of intentionality.

[00:27:59] Speaker 04:
Yeah, I mean, what I read by them as they're saying at 1239 is that there's a presumption of injury in a two-competitor market where there's deliberate deception.

[00:28:23] Speaker 00:
That sounds correct, Your Honor.

[00:28:25] Speaker 04:
I thought the suggestion here was that there was deliberate deception because of some testimony that they knew about what the customers needed or something like that.

[00:28:36] Speaker 04:
Was my recollection right about that?

[00:28:40] Speaker 00:
I believe that was their argument.

[00:28:41] Speaker 00:
That sounds correct.

[00:28:46] Speaker 00:
An engineer operating in the same field and understanding what competitors want and making

[00:28:54] Speaker 00:
Statements that are not false is not misleading.

[00:28:59] Speaker 04:
It's not intentional.

[00:29:01] Speaker 00:
I would say it's not intentional misleading.

[00:29:03] Speaker 00:
Intentional statements.

[00:29:06] Speaker 01:
So at least in terms of the briefing before us and the blue brief, beginning around page 69, there's definitely argument about intent and that these misrepresentations were intentional.

[00:29:19] Speaker 01:
I see that at least on 69 through 70.

[00:29:23] Speaker 01:
Do you have the briefs with you?

[00:29:24] Speaker 04:
Yes.

[00:29:27] Speaker 04:
But the evidence of that is entirely based on the knowledge of customer requirements, I think, isn't it?

[00:29:40] Speaker 04:
Could you repeat?

[00:29:41] Speaker 04:
The argument of intent is based on the knowledge of customer requirements, isn't it?

[00:29:55] Speaker 01:
The intent is based on... Do you agree that the district court did not reach the merits of the false advertising claim?

[00:30:25] Speaker 00:
The district court stated that the claims were ambiguous at best and thus did not rule them false or not false.

[00:30:43] Speaker 00:
It stated that there is no standing because the claims were ambiguous.

[00:30:52] Speaker 04:
It seems to be very confusing in the 10th Circuit, whether there's a difference between the standing test and the merits test, and they were trying to distinguish some earlier case.

[00:31:02] Speaker 04:
I don't know.

[00:31:05] Speaker 00:
I agree, Your Honor.

[00:31:06] Speaker 00:
It's very confusing.

[00:31:13] Speaker 04:
OK.

[00:31:13] Speaker 04:
Anything further?

[00:31:14] Speaker 00:
I believe that really that test boils down to,

[00:31:21] Speaker 00:
that none of these statements were false or misleading, and that the client had done the stuff that was listed in the design manual.

[00:31:39] Speaker 04:
OK.

[00:31:40] Speaker 04:
Thank you.

[00:31:47] Speaker 04:
Mr. Eichenberger.

[00:31:54] Speaker 04:
Thank you, Your Honor.

[00:31:55] Speaker 04:
Quickly.

[00:31:56] Speaker 04:
So the theory of literal of falsity rests on those two statements.

[00:32:03] Speaker 04:
But you're also saying it's sufficient if we prove intent.

[00:32:07] Speaker 04:
Correct, Your Honor, and in support... And intent is established because of knowledge of customer requirements, is that right?

[00:32:13] Speaker 03:
Correct, Your Honor, so what we specifically point to is these ideas of reliability, deliverability, successful installs.

[00:32:22] Speaker 04:
How does knowledge of customer requirements show intent?

[00:32:27] Speaker 03:
Because the purpose of the design manual

[00:32:30] Speaker 03:
is sent to engineers.

[00:32:32] Speaker 03:
The engineers then qualify the BRBs for use on a project.

[00:32:36] Speaker 03:
When determining whether a device will be successful or useful in the industry, it's whether it's reliable.

[00:32:44] Speaker 03:
It's whether you can deliver.

[00:32:46] Speaker 03:
And in order, for example, in our brief, we mentioned if you went to a potential customer and you said, I'm a company of one.

[00:32:53] Speaker 03:
I've never built a single brace before that's been sold.

[00:32:57] Speaker 03:
Those type of statements go directly to the concerns that the engineers reviewing the design manual would have.

[00:33:04] Speaker 03:
They'd have concerns about reliability, deliverability, durability.

[00:33:08] Speaker 03:
And so by framing his capabilities, both in the sense of making literally false statements and also

[00:33:16] Speaker 03:
making himself appear like the appellants by characterizing his projects as their projects.

[00:33:22] Speaker 03:
What he's essentially doing is capitalizing on what the customer or what the engineer that's going to approve the project is looking for exactly.

[00:33:31] Speaker 03:
With respect to your question on claim construction, we're not asking for any additional construction.

[00:33:37] Speaker 03:
What we're simply asking for is that the words formed between and positioned between be given their plain and ordinary meaning based off the

[00:33:45] Speaker 03:
The district court's erroneous construction was narrowly limited to the specific scenario where it spans the entire distance between.

[00:33:54] Speaker 03:
There is no support in the specification that requires that specifically.

[00:34:00] Speaker 03:
Spans the distance between is nowhere to be found in the specification.

[00:34:05] Speaker 03:
For that reason, the court should reverse on the patent and on the Lanham Act because the standing issue was problematic and also in light of the presumptions.

[00:34:13] Speaker 03:
Okay, thank you.

[00:34:14] Speaker 03:
Thank both counsels.