[00:00:00] Speaker 06: Our next case for argument is 24-1509, Bissell versus the ITC. [00:00:06] Speaker 06: Mr. Hawes, please proceed. [00:00:10] Speaker 02: Thank you, Your Honor. [00:00:10] Speaker 02: I'm pleased, of course. [00:00:12] Speaker 02: In its 150 years, Bissell, an American company, has pioneered floor cleaning technology such as the patents in the city. [00:00:19] Speaker 06: Oh my god, this is not a commercial. [00:00:20] Speaker 06: Move on to your legal arguments. [00:00:23] Speaker 02: After the ITC instituted the investigation, [00:00:26] Speaker 02: into Tinco's importing wet-dry vacuums, Tinco altered their software to add two and four second pauses that accomplished nothing real in the way of cleaning or charging. [00:00:38] Speaker 02: The claim construction issue was clearly in front of the ALJ at the time of the ID. [00:00:44] Speaker 02: Both Tinco's experts during the hearing and Bissell's pre-ID briefing described claim construction issues associated here. [00:00:53] Speaker 02: But the ALJ said there's no claim construction. [00:00:57] Speaker 02: But then confusedly turned to inventor testimony as extrinsic evidence, together with a portion of the specification that identifies one exemplary embodiment in the detailed description, to adopt a confining understanding of the clean out cycle and apply that in order to say that the redesign with its four second and two second charging time periods during pump only action would [00:01:25] Speaker 02: and make it impossible to infringe even a comprising claim that identifies the cleanout cycle as an automated, unattended cleanout cycle. [00:01:35] Speaker 02: In other words, the type of claim language of this court has said time and again is open-ended, one or more is appropriate. [00:01:44] Speaker 06: Do you think there's a problem with the notion that the cleanout cycle has to perform at least some cleanout? [00:01:50] Speaker 02: No, Your Honor. [00:01:51] Speaker 02: As long as that is understood with regard to [00:01:54] Speaker 02: the specification and the findings of the ITC, which is that that does occur, and the specification says as long as a portion is cleaned out. [00:02:04] Speaker 02: And the ITC made that finding, and that's not contested on appeal. [00:02:08] Speaker 02: That's not before us on appeal. [00:02:09] Speaker 02: I'll turn the court to the appendix, page 231, which is where the ALJ in the initial decision determined that, and this is [00:02:21] Speaker 02: It's helpful for context to look at 230. [00:02:23] Speaker 02: This is the portion of the claim language that says to execute the unattended automatic cleanout cycle, the controller is configured to, and I'll wait for you to get there, I understand. [00:02:34] Speaker 02: No, go ahead. [00:02:34] Speaker 02: Okay. [00:02:35] Speaker 02: So this is describing what is an automatic cleanout cycle, what's going on. [00:02:40] Speaker 02: And the second part of it, which is on the top of page 231, is that you power the vacuum motor by the battery after the brush roll motor and pump are powered. [00:02:50] Speaker 02: whereby cleaning liquid is extracted and deposited into the recovery tank, and a portion of the recovery pathway is flushed out. [00:02:59] Speaker 06: Was Dr. Sorensen your expert? [00:03:01] Speaker 02: Yes, ma'am. [00:03:02] Speaker 06: Well, the commission below expressly found him not credible or persuasive when he testified that the only requirement for a clean-out cycle were energizing the pumps, the brush, roll motor, and the vacuum molder, right? [00:03:15] Speaker 06: They found that on [00:03:17] Speaker 06: I guess 12, 684, various pages. [00:03:19] Speaker 02: The ID found that that extrinsic evidence was not credible. [00:03:22] Speaker 02: That's right. [00:03:24] Speaker 02: So our position is based on intrinsic evidence, specifically the summary of the patents, that lines up exactly with this finding on page 231, which is that a portion of the recovery pathway is flushed out. [00:03:37] Speaker 02: That's a finding that was not reviewed by the commission and is not challenged on appeal. [00:03:42] Speaker 02: And it lines up exactly with the language in the patents. [00:03:46] Speaker 02: which if you turn with me to, I believe it's appendix page 421, is the summary of the patents. [00:03:55] Speaker 02: Am I right on 420? [00:03:56] Speaker 02: No, 410, I'm sorry. [00:03:58] Speaker 02: Two pages off. [00:04:00] Speaker 02: So if you look at 410, which is in the brief summary, you'll see at lines 19 to 21, it refers to running an automatic clean-out cycle to self-clean at least a portion of the recovery pathway of the surface cleaning apparatus. [00:04:15] Speaker 02: We're asking this court to include in the construction an express description of what an automatic self-cleaning cycle can do, which is clean a portion. [00:04:26] Speaker 03: Don't we have to agree with you that a construction occurred here? [00:04:29] Speaker 03: I mean, I think your view is that, correct me if I'm wrong, is that the ITC engaged in a clean construction [00:04:38] Speaker 03: Whereas I think the other point of view is that the ITC made a fact finding on infringement, right? [00:04:45] Speaker 02: I would agree that you have to find that claim construction occurred here. [00:04:49] Speaker 02: And I'll note that neither the commission nor TENCO addressed the fact that the ALJ here used inventor testimony and the specification as part of the analysis of what corresponds to a cleanout cycle. [00:05:03] Speaker 02: That is not evidence that's used in the second step of infringement. [00:05:07] Speaker 02: You don't look to the inventor testimony or the specification when you're applying the claims. [00:05:11] Speaker 02: Yes, Ronald? [00:05:12] Speaker 00: I thought we sometimes do that, in fact, when there is a unconstrued claim, say, in the jury context, where the jury can't do construction. [00:05:24] Speaker 00: And so the jury is unavoidably presented with the question when there's a term that might not have a unitary [00:05:33] Speaker 00: denotation, the jury has to decide, make a reasonable choice about what this seemingly capacious term would apply to, and you can look and see what the specification says as part of that. [00:05:48] Speaker 00: No? [00:05:49] Speaker 02: I don't believe so, Your Honor. [00:05:51] Speaker 02: I believe this Court has said that you should instruct the jury to use the ordinary meaning to a person of skill and the art at the time. [00:05:58] Speaker 02: Generally, since Markman, the idea has been that only courts look at the specification. [00:06:05] Speaker 02: Only courts look at the legal documents in doing claim construction. [00:06:08] Speaker 06: In doing claim construction. [00:06:09] Speaker 06: But in assessing infringement, you think that there is some legal impediment to the jury reading the specification to understand what the patentee suggested was within the scope of the claims? [00:06:24] Speaker 02: I mean, the jury, I don't think, is barred from doing that. [00:06:26] Speaker 02: But generally, the jury instructions don't instruct them to do that. [00:06:30] Speaker 02: And here, of course, the patent would have identified that a cleanout cycle could include just cleaning a portion. [00:06:36] Speaker 02: This is a very narrow issue with regard to this appeal. [00:06:41] Speaker 06: I just don't see this as an issue of claim construction. [00:06:43] Speaker 06: I see it as an issue of infringement. [00:06:45] Speaker 06: So do you have an argument? [00:06:47] Speaker 06: Is your entire argument hinged upon prevailing on this claim construction theory? [00:06:53] Speaker 06: Or do you alternatively argue that even if the claim in ordinary means is accepted and this is not part of claim construction, there's nonetheless a lack of substantial evidence? [00:07:04] Speaker 02: Your Honor, I would say that if this court agrees with the ALJ that this term requires a complete clean out despite the summary of the invention saying it can be partial, [00:07:15] Speaker 02: We would agree that that by itself as a matter of claim scope is a problem for us. [00:07:23] Speaker 06: OK, you've used all your time. [00:07:24] Speaker 06: And has he also used his rebuttal time? [00:07:27] Speaker 06: What did you set the timer at? [00:07:28] Speaker 02: Six minutes ago. [00:07:29] Speaker 06: Oh, so you didn't put his full time? [00:07:32] Speaker 02: No, we did the split time. [00:07:33] Speaker 02: The six minutes. [00:07:34] Speaker 06: OK, that's fine. [00:07:35] Speaker 06: Well, you're into your rebuttal time. [00:07:38] Speaker 02: I am, Your Honor. [00:07:38] Speaker 02: And I know I need to rebut two different arguments. [00:07:41] Speaker 02: So I will sit there. [00:08:09] Speaker 01: Good morning, your honor, and may it please the court. [00:08:12] Speaker 01: The court should affirm the commission's finding of no violation as to Tinico's redesigned products and reverse as to the original products. [00:08:20] Speaker 01: I'm going to start by responding to my friend and his argument. [00:08:25] Speaker 01: I think he's said to you that if this wasn't claimed construction, they don't have another argument. [00:08:31] Speaker 01: That's what I think I heard. [00:08:32] Speaker 01: I don't want to misstate what I heard, but I think that's what [00:08:35] Speaker 01: He answered your questions with. [00:08:37] Speaker 01: And so I want to go immediately judge Toronto to your questioning of my friend. [00:08:42] Speaker 01: You asked him about the, I believe you used the term, capacious understanding of the term when it is not construed. [00:08:49] Speaker 01: Your opinion for the court at Fresh Hub, which in turn cites another opinion that I believe you authored in Avid versus Harmonic. [00:08:55] Speaker 05: Do you think that matters? [00:08:56] Speaker 01: I'm sorry? [00:08:57] Speaker 05: Do you think it matters? [00:08:58] Speaker 05: Do you think it matters that Judge Toronto authored it? [00:09:01] Speaker 05: Do you think that should have more persuasive value on me or him or anybody else? [00:09:04] Speaker 01: What's the point? [00:09:04] Speaker 01: Chief Judge Moore, it is an opinion of the court. [00:09:07] Speaker 05: Correct. [00:09:08] Speaker 01: And that's why I said his opinion for the court. [00:09:11] Speaker 01: But here's the more important point that I want to get across here. [00:09:15] Speaker 01: The ALJ Cheney did not engage in claim construction. [00:09:20] Speaker 01: What he was doing was applying that line of precedence [00:09:24] Speaker 01: that says a reasonable understanding of the claim term is enough. [00:09:29] Speaker 01: And he said, and you can look. [00:09:30] Speaker 03: Can I ask you, he focused on clean out and also cycle. [00:09:34] Speaker 01: Right. [00:09:35] Speaker 01: Both of those things. [00:09:35] Speaker 01: Exactly. [00:09:36] Speaker 01: Exactly. [00:09:37] Speaker 01: And what he did at pages 207, 208, 207 and 208 of the appendix is he went through the arguments that my friends were making at that time. [00:09:49] Speaker 01: And he said, these are not reasonable arguments. [00:09:53] Speaker 01: Look at page 207, a cycle that does not do any cleaning, quote, cannot be correct. [00:09:58] Speaker 01: He's saying that's unreasonable. [00:09:59] Speaker 01: And that fits squarely within FreshHub, within AVID, even within the EcoFactor case that they rely on. [00:10:07] Speaker 01: It is an unreasonable understanding of the claim term. [00:10:09] Speaker 01: The same thing with regard to cycle. [00:10:11] Speaker 01: And keep in mind also that this ALJ. [00:10:15] Speaker 03: Well, he also is looking at whether the accused product informed, in fact, performs a clean out [00:10:21] Speaker 03: and whether it performs a cycle, right? [00:10:24] Speaker 03: I think that's what's more than what the claim terms mean. [00:10:29] Speaker 01: And he further pointed out, Judge Stoll, that they had not, their expert, Dr. Sorensen, who as Chief Judge Moore properly pointed out earlier, was found not credible, said nothing about cleaning at all during the cycle that they asserted before the ALJ. [00:10:47] Speaker 01: And that's an important point also here, because as we pointed out in our briefs, [00:10:52] Speaker 01: position that my friend has been offering has been a moving target. [00:10:58] Speaker 01: The cycle before the ALJ was t from 0 to 20 seconds. [00:11:06] Speaker 01: Before the Commission that moved to 3.5 to 30 seconds or 4 to 30 seconds and now in this court they're arguing that the relevant cycles [00:11:16] Speaker 01: are 35 to 55 seconds and 55 to 120 seconds. [00:11:21] Speaker 01: The ALJ took them at their word, took their infringement theory, and said that's unreasonable. [00:11:27] Speaker 01: Now, unless the court has further questions on their appeal, let me now turn to the related domestic industry issue here in this case. [00:11:35] Speaker 01: And it is related because, as we've shown in our briefs, Bissell did not put anything close to substantial evidence in. [00:11:43] Speaker 01: to show that they satisfied the technical prong with regard to their products. [00:11:48] Speaker 01: It was a single colloquy with the aforementioned Dr. Sorensen. [00:11:53] Speaker 01: Dr. Sorensen said, you can see that in the source code. [00:11:56] Speaker 01: Did he show it to the judge? [00:11:58] Speaker 01: No, he didn't. [00:11:59] Speaker 01: Why didn't he do that? [00:12:00] Speaker 01: Is this just a gotcha on our part? [00:12:02] Speaker 01: It is not. [00:12:03] Speaker 01: The reason it's not a gotcha is they wanted to go right past this so that they did not have to say what the cycle was. [00:12:11] Speaker 01: Remember, up here on their appeal, [00:12:14] Speaker 01: They're constantly moving with regard to what they say is the relevant cycle. [00:12:18] Speaker 01: But if they did anything more than a conclusory statement, which this court in cases like T2 Delta, Dominion Energy, which is a non-precedential decision, OSI, Intellectual Ventures, all of which we've cited in our brief say is not substantial evidence. [00:12:34] Speaker 01: There is nothing here that shows that they proved the existence of the domestic industry. [00:12:38] Speaker 06: But we have cases that say that expert testimony based on source code is substantial evidence, even when that source code itself is not admitted. [00:12:47] Speaker 06: So what's the problem? [00:12:49] Speaker 01: Well, the problem here is that even all you have here is a reference to source code. [00:12:55] Speaker 01: If you look at the cases that they've cited, I think one was an ample case. [00:12:58] Speaker 01: I don't remember off the top of my head the name of the other case that my friends have cited. [00:13:02] Speaker 01: Those go to the question of an expert testifying in some detail about source code. [00:13:12] Speaker 01: This is like the old pasta sauce commercial, Prego. [00:13:16] Speaker 01: Their expert says it's in there. [00:13:18] Speaker 01: Don't worry, it's in there. [00:13:19] Speaker 06: Yeah, but you all had a chance to review the source code. [00:13:22] Speaker 06: You could have cross-examined Dr. Sorensen on source code. [00:13:25] Speaker 06: He relied on the source code itself. [00:13:28] Speaker 06: I'm sorry, but submitting the actual source code [00:13:31] Speaker 06: The commission may not have been all that helpful to them, but an expert saying that the source code supports this when you've had an opportunity to both review the source code and cross examine the expert. [00:13:44] Speaker 06: And then how, how is it that you think they, the commission legally aired in being able to rely upon that under those circumstances? [00:13:53] Speaker 01: Because all the experts said is it's in there. [00:13:56] Speaker 01: There was not any chart like we see with regard to the [00:14:00] Speaker 01: Infringement products where they show I mean it's in there. [00:14:04] Speaker 06: It's not that complicated the source code contains this Well, we don't we don't That's what that is a cross-examination, but that's not in the source code is it? [00:14:15] Speaker 06: I mean you didn't put you didn't contest it in a way that makes me think the Commission erred in relying on it Well, we absolutely said in our pre-hearing brief that it was their burden [00:14:26] Speaker 01: This was, this was not, we did not stipulate to this. [00:14:29] Speaker 03: But you didn't call out this particular issue, right? [00:14:32] Speaker 01: It was, again, this court has said, and my friends at the commission have cited in their brief, the Alec case in which the domestic industry analysis is said to be virtually the same as an infringement analysis. [00:14:45] Speaker 01: This court would never accept such a single conclusory statement as substantial evidence to support. [00:14:51] Speaker 03: It's just one element, right? [00:14:52] Speaker 03: And this is an expert who relied. [00:14:54] Speaker 03: It's an expert who relied on something that wasn't provided. [00:14:58] Speaker 03: But someone who is an expert in reading source code and understanding source code testified that it was in there, right? [00:15:07] Speaker 03: And it wasn't contested at all. [00:15:08] Speaker 03: Do I understand that correctly? [00:15:09] Speaker 01: Well, it was absolutely contested. [00:15:11] Speaker 01: We said that that was not enough. [00:15:12] Speaker 01: There had to be some further explanation. [00:15:14] Speaker 03: His statement. [00:15:15] Speaker 03: Either who's not a cross-examined donor. [00:15:18] Speaker 01: We did cross-examine him. [00:15:19] Speaker 01: We asked him whether he reviewed a computerized or a paper copy of the source code. [00:15:24] Speaker 01: But that was pretty much the limit of our cross-examination. [00:15:28] Speaker 01: But again, their burden to show that. [00:15:30] Speaker 01: Let me turn very quickly to the suction nozzle configured to extract fluid and debris. [00:15:36] Speaker 01: And here I'd like to point the court to the very last page of the appendix, which is Appendix 31374. [00:15:46] Speaker 01: If it will help, I can hold it up here. [00:15:50] Speaker 01: It is titled Streaking Update. [00:15:54] Speaker 01: And I'm holding it up to you here if you want to take a look. [00:15:57] Speaker 01: There's a picture or a schematic of Bissell's product on the left and Tinico's product on the right. [00:16:04] Speaker 01: What you see here is an entirely different principle and application. [00:16:08] Speaker 01: The Tyneco product has a blade which scrapes off all of the stuff that is coming up as the roller is pushed forward. [00:16:17] Speaker 01: So there is not a suction nozzle configured to extract fluid and debris from the brush roll. [00:16:23] Speaker 01: The configuration here is only to extract it from the blade. [00:16:28] Speaker 01: And what is the proof that was offered against us? [00:16:32] Speaker 01: disassembly of our product to remove the blade to show that if it were configured a different way it might suck up fluid and debris and That's not that's not even substantial evidence that is responsive to this by white construed claim term this is not a case where the report had no construction or the ALJ had no construction or the ALJ had [00:17:01] Speaker 01: Said it's just mere capability so it ended up that he was actually applying something close to a mere capability stand I'm into my rebuttal time. [00:17:09] Speaker 06: I'll save what I've got left Thank you How do I say your name counsel Lindy hers back mr. Buck [00:17:21] Speaker 04: Please proceed. [00:17:23] Speaker 04: International Commission, may it please the court? [00:17:26] Speaker 04: I'd like to start with Bissell's appeal, since I'll be addressing both arguments. [00:17:30] Speaker 04: And specifically, I agree that I think I've understood the court to say that this is literal infringement issue is a fact issue. [00:17:37] Speaker 04: It's not a claim construction issue. [00:17:38] Speaker 04: So there's a few problems with Bissell's arguments. [00:17:41] Speaker 04: First, the commission contends that they've actually forfeited any claim construction argument. [00:17:46] Speaker 04: This was a case where they did not present any claim construction arguments. [00:17:50] Speaker 04: So the plain and ordinary meaning controls. [00:17:52] Speaker 04: It also is hard pressed to understand how you would understand plain and ordinary meaning from the standpoint of a person of ordinary skill while ignoring the specification or ignoring other evidence in the record. [00:18:04] Speaker 04: So we believe, first, that the claim construction is forfeited. [00:18:07] Speaker 04: If this court agrees, there's nothing further to their appeal. [00:18:11] Speaker 04: Second, we believe that the ALJ did not construe the claims as Bissell contends. [00:18:17] Speaker 04: So this was not limited to a single cleanout cycle. [00:18:20] Speaker 04: The ALJ did not require a full cleanout of any portion of the device. [00:18:25] Speaker 04: What happened is there has to be first the antecedent basis, an unattended automatic cleanout cycle. [00:18:32] Speaker 04: That has to be identified first. [00:18:34] Speaker 04: Bissell argued that four to 20 seconds was an unattended automatic cleanout cycle. [00:18:41] Speaker 04: The ALJ made a fact finding that it was not. [00:18:44] Speaker 04: And as further evidence, [00:18:45] Speaker 04: that he did not construe this cleanout cycle as limited to only one. [00:18:49] Speaker 04: If he had, he could have stopped his analysis when the parties agreed that the full 122nd self-clean cycle was the cleanout cycle. [00:18:59] Speaker 04: That's not what he did. [00:19:00] Speaker 04: But on this record, there is only one period of time that was identified and that the ALJ found to be an unattended automatic cleanout cycle. [00:19:10] Speaker 04: And the main reason for that finding was the lack of credibility for Bissell's expert [00:19:15] Speaker 04: And the fact that Bissell's expert, when dealing with this 4 to 20 second time period, completely ignored whether any dirt is cleaned out from the device. [00:19:25] Speaker 04: Now, Bissell's confusing the cleaning a portion of the machine, a physical distance, versus an amount of dirt. [00:19:33] Speaker 04: So there's a difference here. [00:19:35] Speaker 04: What the ALJ found is that there is no amount of dirt that was shown to be removed during Bissell's time periods. [00:19:41] Speaker 04: So for example, if you look at the [00:19:44] Speaker 04: four to 20 seconds, the vacuum motor doesn't even turn on until 20 seconds. [00:19:48] Speaker 04: So removal is hard to see. [00:19:50] Speaker 04: There's more than substantial evidence here to support the ALG's finding that one, four to 20 seconds was not an unattended automatic clean out cycle because it did not show any clean out of dirt from the machine. [00:20:02] Speaker 04: And two, if we're left then with the 120 second full clean cycle, it's undisputed the redesigned products charged twice during that cycle. [00:20:12] Speaker 04: They cannot meet the claim limitation [00:20:14] Speaker 04: that the charging is disabled and remains disabled. [00:20:18] Speaker 04: If there are no questions regarding Bissell's appeal, I'd like to turn to Tyneco's issues. [00:20:25] Speaker 04: So Tyneco raises an issue with the commission's technical prong findings and infringement findings regarding the suction nozzle. [00:20:35] Speaker 04: Tyneco is actually asking this court to reweigh the evidentiary record and to ignore, instead of deferring to the ALJ's credibility determinations, [00:20:44] Speaker 04: So if we turn to technical prong, for background, the technical prong considers whether the articles practice the patents. [00:20:52] Speaker 04: So it's similar to an infringement issue. [00:20:54] Speaker 04: I'd like to actually direct the court to you. [00:20:57] Speaker 06: Let's just get to the chase here. [00:20:58] Speaker 06: This is too much buildup. [00:20:59] Speaker 06: Their argument is Dr. Sorensen's testimony should not have sufficed as substantial evidence because he made at best a passing reference. [00:21:08] Speaker 06: It's in there. [00:21:09] Speaker 06: and didn't identify where, didn't give specifics, didn't. [00:21:12] Speaker 06: And so the question is, do you think that's necessary? [00:21:15] Speaker 06: Was his testimony so conclusory that it should not have sufficed the substantial evidence? [00:21:20] Speaker 06: That's what their entire argument here boils down to. [00:21:23] Speaker 06: Absolutely. [00:21:24] Speaker 04: And if I could direct the court actually to APPX 323. [00:21:28] Speaker 04: So APPX 323 is the page of the initial determination where the ALJ [00:21:38] Speaker 04: analyzes this term that we're talking about. [00:21:42] Speaker 04: I think it's best if we look at what the ALJ actually did. [00:21:45] Speaker 04: So when we're looking at this page, the ALJ first considers all of Bissell's arguments and evidence. [00:21:56] Speaker 04: Then he also references Tinico's responsive brief. [00:22:01] Speaker 04: But then he goes through and also cites Dr. Sorensen's specific testimony regarding the source code. [00:22:07] Speaker 04: At the end of this analysis, he states, in view of the foregoing evidence, there's just far more here than just an expert testimony as well. [00:22:14] Speaker 04: So there's two problems with Kinneko's argument. [00:22:16] Speaker 04: One, there is other evidence in the record that supports the finding that Bissell's domestic industry products meet this limitation. [00:22:25] Speaker 04: And even if we ignore that evidence, which we're not to do under a substantial evidence review, we look at the record as a whole. [00:22:31] Speaker 04: So we look at this other evidence. [00:22:34] Speaker 04: Then we also have the source code testimony. [00:22:37] Speaker 04: Dr. Sorensen, he was qualified. [00:22:39] Speaker 04: He testified he reviewed the source code. [00:22:42] Speaker 04: And the ALJ considered him to be persuasive. [00:22:46] Speaker 04: And lastly, I'd just point out again that TINACO never substantively disputed that this limitation was met. [00:22:53] Speaker 04: So when you have the source code testimony by a qualified expert, you have Bissell's evidence, which also includes, I would point just to clear any confusion, [00:23:02] Speaker 04: this JX 41 at 10 that's cited here in the first paragraph. [00:23:06] Speaker 04: That actually is the fiscal user guide that's also in the record. [00:23:12] Speaker 03: I think the response would be that the only evidence that's presented about disabling during the cleanout cycle is Dr. Sorensen's testimony. [00:23:21] Speaker 03: The other testimony isn't about that feature, I think. [00:23:25] Speaker 03: But tell me if I'm wrong. [00:23:27] Speaker 04: The JX 41 I just cited too, that appears in the joint appendix as [00:23:32] Speaker 04: A P P X 2 6 5 4 5 and that is a Bissell user manual that explicitly states the charging disabled during this opening. [00:23:41] Speaker 04: Sorry I missed that. [00:23:42] Speaker 03: No it's okay I just wanted to make sure we had the site. [00:23:45] Speaker 03: Okay. [00:23:45] Speaker 04: Thank you your honor. [00:23:48] Speaker 04: So in our view more than substantial evidence supports the Commission's finding here that Bissell did meet its technical problem. [00:23:57] Speaker 04: If there are no other questions I'd like to turn to the section nozzle issue. [00:24:02] Speaker 04: So [00:24:03] Speaker 04: Here, there is substantial evidence that supports the ALJ's finding that even if this metal blade helps to extract dirt and debris, it's not the sole way that dirt and debris is removed from the brush roll. [00:24:17] Speaker 04: So we have both experts' testimony that if you apply the claim construction where configured to extract fluid and debris means the components are arranged to extract, if there's suction that is arranged to extract and [00:24:33] Speaker 04: Throughout this investigation, extract and suction were used interchangeably to mean the same thing. [00:24:38] Speaker 04: So it's a range such that the suction can remove any dirt and debris from the brush roll. [00:24:44] Speaker 04: There doesn't have to be all of it removed by the suction. [00:24:47] Speaker 04: It can be helped. [00:24:48] Speaker 04: We can add other components to it, and it can still infringe. [00:24:52] Speaker 04: The ALJ made a specific finding that- Can I just ask? [00:24:56] Speaker 00: Yes. [00:24:57] Speaker 00: I guess it relates in part to this and in part to the previous argument. [00:25:04] Speaker 00: clarification of the relationship between cleaning and extraction slash suction. [00:25:12] Speaker 00: Assuming extraction and suction are the same. [00:25:15] Speaker 00: You said something in the first part of the argument about when the pump is on and the roller brush is going round, there might have been [00:25:30] Speaker 00: or might not have been, I think is your point, cleaning because the dirt is not being suctioned out. [00:25:37] Speaker 00: So maybe it's just floating around or something after being somewhat detached from the bristles. [00:25:44] Speaker 04: If I could just ask a clarifying question and make sure I answer your question correctly. [00:25:49] Speaker 04: I believe before we were talking about the self-clean cycle, when the machine is docked and it's actually being cleaned with fresh water and then the dirty water goes into a dirty tank to be emptied by the user. [00:26:00] Speaker 04: Here, I believe we're talking about it more in operation. [00:26:02] Speaker 04: So if we're actually running the surface cleaning device on the floor to be clean, it's going to use the pump, the motor, the vacuum differently than it might during the self-clean cycle. [00:26:14] Speaker 04: So if we're talking about the removal of dirt while we're actually using it to clean a surface, I think that's a slightly different issue. [00:26:22] Speaker 04: I also think that to go back to the self-clean cycle, it was [00:26:29] Speaker 04: Bissell's burden to prove that any dirt or debris was removed during the self-clean cycle, and they've identified this very small period of time, but they didn't show any dirt or debris removed during that time. [00:26:43] Speaker 04: So if we then switch back to the time code issues, I'm sorry, I know this is confusing, that relates to the infringement, more the operation of the self-cleaning device, is my understanding. [00:26:53] Speaker 04: So when the suction nozzle is arranged such that suction can travel, [00:26:57] Speaker 04: to remove dirt or debris from the brush roll, that satisfies the cleaning orientation. [00:27:02] Speaker 03: You're saying during operation, while it's actually cleaning a carpet, as opposed to when it's sitting there in a self-cleaning mode. [00:27:08] Speaker 04: Yeah, exactly. [00:27:08] Speaker 04: That there would be a slight change. [00:27:09] Speaker 03: Cleaning itself, as opposed to cleaning the carpet. [00:27:11] Speaker 04: Yes, Your Honor. [00:27:12] Speaker 04: Thank you, Your Honor. [00:27:15] Speaker 04: If there are no further questions, I'm happy to see the rest of my time. [00:27:20] Speaker 04: Thank you very much. [00:27:29] Speaker 02: Go straight to the question of whether claim interpretation occurred. [00:27:33] Speaker 02: Tinco's expert during the hearing, and I would point the court to page 13,264. [00:27:39] Speaker 02: This is line 11. [00:27:43] Speaker 02: Question to Tinco's expert. [00:27:45] Speaker 02: And is the interpretation you just gave consistent with the specification of the patents? [00:27:51] Speaker 02: Answer? [00:27:52] Speaker 02: Yes, it is. [00:27:54] Speaker 02: The next page, 13,265. [00:27:58] Speaker 02: Again, line 11. [00:28:00] Speaker 02: Do the specification of the patent support your opinion about the meaning of the cleanout cycle that you just talked about? [00:28:07] Speaker 02: Answer, yes, they do. [00:28:10] Speaker 02: At the hearing, TINCO said, here is a construction of cleanout cycle. [00:28:14] Speaker 02: And by the way, the specification of the patent support it. [00:28:17] Speaker 02: So what happens after the hearing? [00:28:19] Speaker 02: Not surprisingly, the cell is very clear that the issue here is a claim construction issue. [00:28:25] Speaker 02: At appendix page 13906, [00:28:28] Speaker 02: We say, TENCO is importing limitations not recited by the claim. [00:28:33] Speaker 02: At the second to the bottom of that same page, TENCO's definition of clean-out cycle finds no support in the claims or the specification. [00:28:43] Speaker 02: On the next page, 13th. [00:28:44] Speaker 02: Yeah, go ahead. [00:28:45] Speaker 06: One of the things I'm finding challenging about this is that when neither party proposes a construction, which is what happened here, you didn't propose a construction. [00:28:53] Speaker 06: It's the plain, ordinary meaning. [00:28:55] Speaker 06: Do you think that that impedes or prevents the expert from then giving testimony when they're saying there is infringement from explaining what the plain and ordinary meaning is? [00:29:07] Speaker 06: Do you think that that is something the expert can't do? [00:29:10] Speaker 06: How is the jury supposed to divine what the plain and ordinary meaning is to a skilled artisan, which a jury is not? [00:29:19] Speaker 02: So first of all, I would say plain and ordinary meaning [00:29:22] Speaker 02: Not a problem. [00:29:23] Speaker 02: And this takes me back to a question Judge Toronto asked about going to the specification. [00:29:28] Speaker 02: And Judge Toronto, in our brief, we actually did address that point. [00:29:31] Speaker 02: And the casing question, get back to the microphone, is Catalina Lighting. [00:29:35] Speaker 02: We cited it on page 28, which says that the quoting, infringement is to be determined by comparing the asserted claim to the accused device, not by comparing the accused device to figures of the asserted patent. [00:29:47] Speaker 02: So we're not supposed to be going to the specification. [00:29:50] Speaker 02: And there, expert admits, [00:29:52] Speaker 02: That's what he's doing. [00:29:52] Speaker 06: What do you mean? [00:29:53] Speaker 06: I don't agree. [00:29:54] Speaker 06: We're not supposed to be going into specification. [00:29:56] Speaker 06: That doesn't make sense. [00:29:57] Speaker 06: And for a jury to try to figure out, you didn't offer a construction. [00:30:01] Speaker 06: You could have offered a construction. [00:30:03] Speaker 06: You didn't. [00:30:04] Speaker 02: Respectfully, Your Honor, we did. [00:30:05] Speaker 02: We said it was defined by the claims, which was that language I pointed you. [00:30:09] Speaker 02: If you look at page 230 and 231, it says an automatic cleanout cycle includes and gives the specific operation of the pump [00:30:21] Speaker 02: the vacuum motor, and the brush roll motor. [00:30:25] Speaker 02: That defines what it is. [00:30:28] Speaker 02: And the findings on page 230 and 231, which are uncontested on appeal, is that Tenteco's products, both original and redesigned, do that. [00:30:36] Speaker 02: And during the time they're doing that, there's no recharging. [00:30:38] Speaker 06: You've exceeded your time. [00:30:39] Speaker 06: Thank you, Mr. Pollock and Mr. Kostanis. [00:30:51] Speaker 01: Very quick, I hope. [00:30:53] Speaker 01: As to domestic industry, my friend at the commission says, well, look at other evidence that was cited when the ALJ was reciting the party's contentions. [00:31:04] Speaker 01: This is a very experienced ALJ. [00:31:08] Speaker 01: He was reciting contentions. [00:31:09] Speaker 01: He was not making reasoned decision-making or meaningful engagement with this. [00:31:13] Speaker 01: The only evidence he relied on was that single question and answer with Dr. Sorensen. [00:31:18] Speaker 01: Judge Stoll, you asked my friend about JX 41, Appendix 26545. [00:31:24] Speaker 01: That only goes to one, by the way, of the two domestic industry devices. [00:31:30] Speaker 01: There is not anything in the record showing the same thing with regard to the second domestic industry device, and the ALJ didn't engage that at all. [00:31:38] Speaker 01: And finally, the commission said that Dr. Sorensen was found persuasive. [00:31:41] Speaker 01: He was found specifically not credible. [00:31:45] Speaker 01: On the configured point, [00:31:46] Speaker 01: The one thing I want to leave you with is that our products are fundamentally different. [00:31:50] Speaker 01: We have a very thick brush roll that requires that blade to remove things from the brush roll. [00:31:58] Speaker 06: Thank you for your time.