[00:00:00] Speaker 02:
This morning is number 24-2158, Durr Systems, Inc.

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versus EFC Systems.

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Mr. Lamkin.

[00:00:10] Speaker 03:
Good morning.

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You may please the court.

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I'd like to begin with the two claim construction issues, the meaning of substantially conical and of attached, before turning to the exclusion of Durr's expert.

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Beginning with substantially conical, that term does not exclude any curvature no matter how slight.

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The district court gave conical its plain and ordinary meaning.

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resembling a cone in shape.

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Widely familiar shapes have a slight curvature, even though we would easily recognize them as conical in form.

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There's the images on page 36 of our brief, the canine tooth, the tapered cone, a cinder cone volcano is recognizably conical, even though it's not perfectly, there may be curvature, and the cone heads from Saturday Night Live.

[00:00:51] Speaker 03:
The heads are recognizably conical, notwithstanding some slight curvature.

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But the modifiers, substantially and generally, make clear that such departures are permitted.

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Those are terms of approximation.

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They have well-established meanings, meaning about, largely, substantially.

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And that comfortably covers slight curvatures in what would otherwise be a peripheral cone.

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And your view would be substantially, it could include slight curvature.

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It would be up to a fact finder to determine whether something satisfied that claim limitation.

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I think that's right.

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I think it goes to the fact finders of fact.

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A skilled artisan could determine, looking at something, whether it is conical in form and substantially so.

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And that would just go to the jury.

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Certainly, under the claim, other than excluding curvatures, the constructions here could have gone to the jury to make that determination.

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Finally, it's really especially inappropriate for the district court to say you can't have curves when the district court also said you could have sharp angular deviations.

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That simply doesn't reconcile, it doesn't line up with the purpose of the patent, which is to reduce flow deviations.

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The district court recognized that those sharp deviations would introduce sharp deviations and they would actually cause non-laminar flow, contrary to the intentions of the patent.

[00:02:11] Speaker 01:
I could turn quickly to quickly where it says that the conical generally conical overflow surface has a generally constant flow angle does that help define what it is the generally constant flow angle suggests that there can be some

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Modification of the angle, it just has to be generally constant.

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Am I understanding that correctly?

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That's correct.

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Generally constant doesn't mean perfectly straight.

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No change at all.

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It always says generally or substantially as a modifier in the claims.

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But I think critically, those are distinct terms, although they're related.

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Generally constant flow angle doesn't appear in all the claims.

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It appears in only some.

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It's not always there, like the substantially conical.

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And if you look at claim one, for example, it's on appendix 114, column 5.

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It says having a generally constant flow angle relative to the atomizing edge.

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And that atomizing edge is sometimes called the spray edge.

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So it's gotta be relatively, generally constant relative to that outer edge at one point.

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So you can't vary too much off that.

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But it doesn't mean that it has to, you can't have any curvature whatsoever.

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Turning to then to the term attachment.

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The district court, or attached, the district court

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aired in narrowing the term attached to two pieces that came together.

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This is not a product by process claim.

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It's an apparatus claim.

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It's about what the device is, not about how the device came to be.

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So if you look, does it have a rear cover?

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Yes.

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Is it attached to the bell?

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Yes.

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Does it produce a hollow device?

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Yes.

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Then it fits that the claim is satisfied.

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It departs from ordinary meaning, from attached.

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Attached in this context, because it's used as an adjective, doesn't mean something that happened in the past.

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It's a positional word.

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It means that the two things are connected together.

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It's indifferent to how that came to be.

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We all know... So, you know, on page 48 of your brief, you quote the American Heritage Dictionary, attached simply means not freestanding.

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I don't think that's quite correct, because if you look at that dictionary that you cited, American Heritage Dictionary, that's a definition which is an architectural definition.

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It's not a general definition.

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And if you look at the Webster's International Dictionary and OED,

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the primary meaning attached is two pieces joined together.

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So I don't think that the dictionary is helpful to you.

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I think it's harmful to you.

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Quite the opposite, Judge Dyke, because it's indifferent about how the two pieces came to be joined together.

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I don't think you're answering my question.

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I mean, the dictionary you cite does not support your proposition.

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even if that's architectural, because attached is a term that's used in the architectural context as well, even if we take two pieces joined together, Judge Dyke, which is what you've pulled from the OED in Webster's third.

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That's still indifferent about how the two pieces came to be joined together.

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A familiar egg carton?

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Definitely the lid is attached to the egg carton, but whether it's from cardboard or plastic, those are joined together, they're attached, but they were formed from a single piece.

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Joined together is indifferent to how that came to be.

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The tines of a fork are attached to the fork, but no one thinks that that means you took each tine and glued it onto the fork.

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There's lots of examples of banana peel attached to the banana.

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The primary dictionary meaning is joining two pieces together that were previously separate.

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It may not be determinative as to what it means in the context of this patent, but it's a dictionary matter.

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claim that the dictionary supports your definition is really not true in the case of that dictionary, and in general it means taking two pieces and joining them together, which is the one example in the specification here is joining by gluing or some other mechanism like that.

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If those dictionaries say two pieces that were previously separate joined together, that would be not good for us.

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But I believe that Your Honor said that it was two pieces joined together.

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And that simply isn't different.

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Where joins an adjective, they're joined together, as opposed to a past act, someone who joined them together.

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Is it just the difference that attached can be viewed either as an adjective, as you're arguing, or as a past participle, in which case

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It would be referencing what happened previously, as in this object was attached.

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Yeah, I think in the context of this claim, it cannot be a past participle because it describes the attached rear cover, not the rear cover that was attached.

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As it is now.

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And the state is as it is now.

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And it's an apparatus claim.

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It's not a product by process claim.

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So we decide whether it infringes or we construe the claim according to what the device is, not how it came to be that way.

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If it were product by process or something else, or it had a method of making or something like that, it might be a different case.

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But this is an apparatus claim.

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And when you're talking about attach for recover, that means it's joined.

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There's another part that it's hooked to.

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But it doesn't mean that they were made by separate parts.

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They could be made integrally.

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In fact, the absurdity of the contrary view, if the court would turn to page 38 of our brief, for example, I think this illustrates the absurdity of trying to construe it to be two parts brought together.

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On the right-hand side, you have the Durbel cup from our patent, which shows how we make it.

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And on the left-hand side, you have EFC's cup.

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So the way the Dursbell Cup works is, if you look at it, it's very small, but there's 33 and 26.

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It sort of makes an R shape.

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What page are you on?

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38 of our brief.

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There's a little 33 and a 26, and they sort of make an R shape.

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And what happens when we make these is we attach the rear cover, which is that diagonal, onto it.

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And if you turn to EFC, what they do is they start with sort of a V shape, far left.

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You can see that hypotenuse and a piece that goes up from that.

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And then they attach that red piece on the top to complete it.

[00:08:27] Speaker 01:
Just to be clear, we shouldn't be interpreting the claims

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by looking at what the accused product is, right?

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Exactly.

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One of the things that I noticed that EFC relied on was the prosecution history, maybe some amendment changing the words including to attach to.

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Do you have any response to that?

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Yes, certainly.

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Well, if I could finish the thought, but if you look at these two devices, it's very hard to look at and say, gee, the one on the right hasn't attached to recover, the one on the left doesn't.

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Looking at the devices, they're identical, and you can't really say one hasn't attached to recover and one doesn't because of the way in which they were made.

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Turning to the prosecution history,

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Yes, there was a change there, and nothing was attached to the significance of that prosecution history.

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But it changed some very clunky language with including and attached thereto to just be attached thereto.

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It was a simplification.

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I think it's very hard to say that dropping the including, which would be surplufuous, somehow changed the meaning of that.

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What about the expert witness exclusion?

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The standard review on that is quite forgiving.

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So that seems to me your biggest challenge is how you get over the standings.

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Of course, if there's a legal error, Your Honor, in recognizing, for example, it has to be a person of ordinary skill or failing to recognize the correct art, then it's de novo.

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But generally... Let me ask you, before we get into the nuts and bolts of this issue, if we agree with you on the first two issues, is it necessary for us to address

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the exclusion of the expert, either vis-a-vis the DOA, Doctor of Equivalence issue, or with respect to other aspects of his testimony.

[00:10:19] Speaker 03:
I don't think so, Your Honor, because if the claim constructions change, there are going to have to be new reports, at least in part.

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And those new reports could either be from Mr. Totillo or Dr. Akafu.

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Nobody has ever said that Mr. Akafu is not qualified.

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So I think this court could say, as a matter of judicial economy, just vacate the ruling and see how it sorts out on rematch.

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So the court could simply decline to address the issue if it changes the claim constructions.

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Well, we shouldn't come back on rematch and offer the same expert for the same purpose, right?

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Well, if we do, and it's struck, we would be stuck just with Dr. Akafua.

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But for now, we're arguing, and I think we're correct, that Mr. Titillo is amply qualified as an expert.

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He was for a decade.

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The district court's theory is that this is somebody expert in design of these atomizers, and he doesn't qualify, which is clearly correct, right?

[00:11:14] Speaker 03:
Well, he certainly isn't somebody who designs atomizers.

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And if this were a patent on, for example, how to design an atomizer, or the patent were about atomization generally, or fluid dynamics, you would want an expert on those things.

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But the patent is on a particular atomizer, a rotary atomizer for a specific person, applying particulate paint.

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And if you're looking for somebody who understands atomizers for particulate paint, someone who's worked with them for 37 years, someone who is the director of

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Technology for Applied, Director of Coatings Application Technology for a Decade at PPG.

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That's technology for applying coatings, technology for applying paints.

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He was the head of R&D, he supervised R&D at PPG for 10 years.

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including R&D for fundamental paint analyzer research.

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It's really hard to say he's not ordinary skill, ordinary skill.

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Maybe he's not Dr. Dong, but this is a question.

[00:12:09] Speaker 02:
Ordinary skill for what?

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And for somebody making a determination here,

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to design the claimed atomizer, he doesn't have that skill.

[00:12:21] Speaker 03:
Well, he certainly does, because what you're looking at are these geometric shapes, and you're asking... Well, he said himself he doesn't, he's not a design expert.

[00:12:29] Speaker 03:
No, he doesn't design them himself, but he certainly understands the differences in design from 37 years.

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When he started out, he tested virtually every type of bell atomizer in existence.

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But, go ahead.

[00:12:39] Speaker 01:
One impression I have is about the level of ordinary skill in the art.

[00:12:43] Speaker 01:
So, that's a fact-finder.

[00:12:45] Speaker 01:
Right?

[00:12:46] Speaker 01:
Fact-finding about what the level of ordinary schooner art is, that would, if it were a clearly erroneous fact-finding, that would be an abusive discretion.

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What is the argument that it's clearly erroneous?

[00:12:58] Speaker 03:
I think there's two things that are critical to this.

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First, in requiring that he actually be, you know, for example, an expert on fluid dynamics, we have, one, that would exclude one of the inventors.

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One of the inventors, Robert Held,

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didn't even finish college.

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There's no way he had classes on fluid dynamics and the abstract mathematics behind it.

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And if you look at the patent to see what the patent's about, the patent's not about mathematical equations for fluid dynamics.

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It's about relatively straightforward impacts of flattening out something that was formerly jagged to drive the paint forward and the effect of that causing the droplets to be uniform.

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And if the court were to look at the expert report itself, for example,

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He has a working knowledge, an artisan's knowledge, of what happens based on these geometric shapes.

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So for example, if you look at page 6953, he's explaining Rayleigh's theory, which explains how liquids break into ligaments into droplets.

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And he explains why, when you have sharp changes in the surface, you end up with uneven drop sizes.

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And you can tell, and you take a look, and he has this high flow thing where you see

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a wave and he says, look, what happens when you have that wave?

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You have different sizes in the wave.

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And when it breaks apart, you'll get larger and smaller droplets.

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He's using the standard theories, the things he's worked with 37 years, in order to explain what is happening there.

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Rule 702 says you can have it from knowledge, experience, training.

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It mentions academics last.

[00:14:32] Speaker 01:
Going back to what a person reporting near a screening audience and that definition, that fact finding, what are the different factors we should be looking at?

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And is there anything in the specification that supports

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that this patent includes matching colors and different things that he might have expertise in?

[00:14:50] Speaker 03:
Yeah, so certainly the patent is all about matching colors.

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So for example, it starts and says, Rotary Atomizer for particulate paints.

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It's about particulate paints, which have the mica in them.

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And then you look at it, it says, first sends the abstract.

[00:15:04] Speaker 02:
It's not just about matching colors.

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It's designing an atomizer that helps to match colors.

[00:15:09] Speaker 03:
Right, it's rotary atomizer applies particulate paints with good color matching.

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So it's about an atomizer that can achieve good color matching.

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That's very different from Dr. Dom, a rotary atomizer in order to cause, you know, even explosions from jet fuel.

[00:15:24] Speaker 03:
This is about getting the paints to lie, the paint mica to be uniform and to lie flat on a surface as it's drying.

[00:15:30] Speaker 03:
Very, very different purpose.

[00:15:31] Speaker 01:
What was your definition of a person with a rotary atomizer that you proffered?

[00:15:35] Speaker 03:
Yeah, so our definition of ordinary skill was very lengthy.

[00:15:39] Speaker 03:
It went through 15 years of that, 14 years of that, but I think it just comes down to someone who has, based on decades of experience, for example, of working with rotary atomizers of different sizes so they can explain to the jury

[00:15:55] Speaker 03:
why it produces good color match, why it's uniform, why you get the droplets.

[00:16:01] Speaker 01:
I mean, many times we see situations where a district court is adopted.

[00:16:04] Speaker 01:
It's either someone who has particular education or someone who has experience in the industry, and you can have either or.

[00:16:13] Speaker 01:
Did you offer an either or definition?

[00:16:15] Speaker 03:
Yes, we offered an either or, and we used experience in industry because, frankly, Mr. DiTillo isn't an academic.

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If you ask him about the mathematics of fluid dynamics, that's not where he is.

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But he has a working knowledge of those things from those 37 years of experience that began with working in a paint lab testing these things out.

[00:16:36] Speaker 03:
that type of experience and he has based on that practical experience an ability to explain to the jury exactly why you would with particular shapes get uniform drop size of the right size to ensure that the mica goes unevenly or why you wouldn't because it causes things to not have the laminar flow because it causes undulations

[00:16:55] Speaker 03:
in the way that the fluids flow.

[00:16:59] Speaker 03:
You need a thin flow, you need it at the proper speed, and you need it not to be turbulent.

[00:17:04] Speaker 03:
And he can explain exactly why this pattern achieves that.

[00:17:09] Speaker 02:
Okay, I think we're out of time.

[00:17:10] Speaker 03:
Thank you so much.

[00:17:31] Speaker 04:
Good morning.

[00:17:31] Speaker 04:
Thank you, Your Honors.

[00:17:33] Speaker 04:
In Dyr's briefing and in the argument this morning,

[00:17:36] Speaker 04:
They suggest that these patents, this case, is about color matching or painting of automobiles.

[00:17:42] Speaker 04:
But I think, as was hinted during the questioning, that's not really the case.

[00:17:47] Speaker 04:
Dirt didn't invent color matching.

[00:17:48] Speaker 04:
That's not what these patents are about.

[00:17:50] Speaker 04:
It's not what this case is about.

[00:17:51] Speaker 04:
The patents are very clear that they relate to rotary atomizers.

[00:17:55] Speaker 04:
So the problem confronting an inventor looking at this problem wasn't how to achieve color matched paint on cars.

[00:18:02] Speaker 04:
Durr's briefing says that had been done for many years, decades, before these patents existed.

[00:18:07] Speaker 04:
The problem that the inventors faced was how to design a rotary atomizer to apply atomization to a particular surface in a given way.

[00:18:16] Speaker 04:
Mr. Lamkin said if this were a patent on how to design an atomizer, then design experience would be relevant.

[00:18:23] Speaker 04:
This is a patent on how to design an atomizer.

[00:18:25] Speaker 04:
That's exactly what this patent is about.

[00:18:27] Speaker 04:
If you look at the patent, it's very clear the title.

[00:18:29] Speaker 04:
The first sentence of the specification in the background is, the present invention relates generally to rotary atomizers.

[00:18:36] Speaker 04:
The claims don't relate, for the most part, to paint

[00:18:40] Speaker 04:
certainly not to metallic paint, or painting automobiles, or color matching.

[00:18:44] Speaker 04:
What they all relate to is the specific geometric design of a rotary atomizer to achieve a particular result.

[00:18:51] Speaker 01:
And rotary atomizers had been in use from... What about like the first sentence of column one line?

[00:18:56] Speaker 01:
It's the summary of the invention.

[00:18:57] Speaker 01:
The present invention provides a rotary atomizer which provides improved color matching.

[00:19:04] Speaker 01:
I just want to make...

[00:19:07] Speaker 01:
I don't know that I don't see where it's not referring to color match.

[00:19:11] Speaker 04:
Oh, it certainly refers to color match.

[00:19:13] Speaker 01:
But that is the purpose of the improved, it's improved in the sense that it provides improved color matching, right?

[00:19:21] Speaker 01:
Do I understand?

[00:19:21] Speaker 01:
It's actually...

[00:19:23] Speaker 04:
Right, more technically it's improved in that it provides a better droplet size deviation and because of that it can be used to improve color match.

[00:19:31] Speaker 04:
That's really, if you read the body of the application, what it really talks about is how changing the geometric shape of the atomizer device allows a more narrow droplet size deviation.

[00:19:44] Speaker 04:
And because of that, they were able to achieve better color match.

[00:19:47] Speaker 01:
So again... And why is it Victor's expert couldn't talk about that when he was a lot of his expert opinion goes to the droplet size?

[00:19:55] Speaker 04:
Yeah, but the issue here, if you read the claims of the patent, they don't talk about droplet size hardly at all.

[00:20:03] Speaker 04:
What the claims talk about is the specific geometric features, the engineering design features of the atomizer device that had been created.

[00:20:12] Speaker 04:
And so a person of ordinary skill in the art has to be able to compare accurately the design features of one device to another and understand how those design features impact atomization.

[00:20:26] Speaker 04:
And Mr. DeTillo simply doesn't have any expertise in that.

[00:20:30] Speaker 04:
He admitted that he's never designed a rotary atomizer.

[00:20:33] Speaker 04:
He has no experience in atomizer design.

[00:20:35] Speaker 04:
His experience is in

[00:20:37] Speaker 04:
Assessing paint quality after an atomizer has been used, but that doesn't allow him to determine the differences Geometric engineering differences between atomizer devices it just it just doesn't and the district court's analysis was very thorough Certainly there was no clear error in their assessment, and it's not an abuse of discretion for them to make a determination that

[00:20:59] Speaker 04:
that the field of art here is rotary atomizer design, as the patents make very clear, and that to be a person of ordinary skill in rotary atomizer design, you have to have some experience in designing a rotary atomizer.

[00:21:13] Speaker 04:
I think to go the other way would be effectively to say if you're looking at the Exmark case that a landscaper who knows how to use a lawnmower and can assess how well it cut a lawn would be a person of ordinary skill in designing components of a lawnmower.

[00:21:29] Speaker 04:
And that's clearly not correct.

[00:21:30] Speaker 00:
If we disagree with you on the two claim construction issues, then presumably we have to send the case back, right?

[00:21:38] Speaker 00:
This would not be a case in which we could affirm based on

[00:21:41] Speaker 00:
the ruling with respect to the expert alone?

[00:21:47] Speaker 00:
I take it.

[00:21:48] Speaker 04:
Certainly, the ruling on the expert is still important, even if we were reversed on claim construction.

[00:21:54] Speaker 00:
What would you envision would occur back in the district court?

[00:21:58] Speaker 00:
Could the plaintiff, for example, get another expert and proceed without the burden of the district court's ruling on the current expert?

[00:22:10] Speaker 04:
Well, the lower court granted summary judgment of non-infringement for doctrine of equivalence based on the fact that they don't have sufficient evidence to prove doctrine of equivalence.

[00:22:21] Speaker 04:
So that.

[00:22:22] Speaker 00:
Well, but if we sent it back, where would we be with respect to both literal and doctrine of equivalence is what I'm really asking.

[00:22:28] Speaker 04:
Yeah, and I think the answer on doctrine of equivalence is the grant of summary judgment would stand.

[00:22:33] Speaker 04:
Doctrine of equivalence is out of the case.

[00:22:36] Speaker 04:
The lower court granted summary judgment of non-infringement

[00:22:39] Speaker 04:
of doctrine of equivalence not based on claim construction.

[00:22:41] Speaker 04:
It was unrelated to claim construction.

[00:22:44] Speaker 04:
So certainly, the grant of summary judgment of non-infringement under doctrine of equivalence should stand.

[00:22:50] Speaker 04:
And I think the lower court would then have the ability to make the decision on whether the summary judgment of non-infringement of literal infringement would stand as well.

[00:23:01] Speaker 04:
Because the cases are clear that in most cases, though not all, you do need expert testimony to prove infringement

[00:23:08] Speaker 04:
even literal infringement.

[00:23:10] Speaker 04:
And they simply don't have an expert.

[00:23:11] Speaker 04:
They don't have even a person of ordinary skill in the art who can testify to infringement or to invalidity.

[00:23:18] Speaker 04:
So I think the answer is it's important to rule on both issues.

[00:23:22] Speaker 04:
And if the expert is excluded, as he should be, then non-infringement under Doctrine of Equivalence stands.

[00:23:30] Speaker 04:
And it would be up to the district court to decide whether literal infringement exists.

[00:23:35] Speaker 04:
And I think the lower court would be able to decide on its own to manage its own

[00:23:40] Speaker 04:
case and decide whether it was going to give her another bite at the apple and let them mulligan all of the experts things to date and go back or if you know the deadline for Submitting an expert and identifying experts has long passed and that they're stuck with the expert that they have or the non-expert that they have Could you address the two claim instructions sure I

[00:24:04] Speaker 04:
So the first claim construction, the substantially conical, Dirk goes back and first starts to look at the construction of the word conical, not generally conical.

[00:24:15] Speaker 04:
And Mr. Lampkin said that the lower court said that conical means resembling a cone.

[00:24:22] Speaker 04:
And he equates that to approximating a cone.

[00:24:25] Speaker 04:
That's not what the lower court said.

[00:24:27] Speaker 04:
The lower court said a cone is a widely recognized shape and then clarified that a cone has a smooth and continuous surface with a constant flow angle.

[00:24:35] Speaker 04:
So it's pretty clear the lower court correctly said the plain and ordinary meaning of conical is a cone shape.

[00:24:42] Speaker 04:
And what DER is asking this court to do is to construe that term not to mean a cone shape, but to mean a cone and shapes that are sort of similar to a cone.

[00:24:51] Speaker 04:
And they don't cite to any rational basis of why that's the right thing to do.

[00:24:59] Speaker 04:
Well, certainly, once you get to generally conical, that would be a different thing.

[00:25:02] Speaker 04:
But conical in and of itself, I think it's clear that the plain and ordinary meaning of conical is cone-shaped.

[00:25:07] Speaker 04:
And Durer's argument is that even that should be allowed to have some curvature.

[00:25:12] Speaker 04:
I think that's incorrect.

[00:25:13] Speaker 00:
Isn't it just necessarily going to require some deviation from the perfect shape of a cone?

[00:25:20] Speaker 00:
Nothing in the physical world is a straight line.

[00:25:23] Speaker 00:
Nothing in the physical world is a perfect circle.

[00:25:26] Speaker 00:
Although my geometry teacher could come pretty close.

[00:25:29] Speaker 00:
But there's no such thing in the real world as a perfect cone.

[00:25:34] Speaker 00:
So you're going to have some deviation anyway.

[00:25:37] Speaker 00:
Isn't that?

[00:25:37] Speaker 00:
And then when you add generally into it, it seems to me you've got some significant flexibility as to the particular portion of the surface that we're looking at as conical.

[00:25:51] Speaker 04:
Well, I think importantly, the

[00:25:55] Speaker 04:
The patentee here chose to give some definition to what substantially conical means.

[00:25:59] Speaker 04:
The patentee didn't say substantially conical and sort of let that ride as a plain and ordinary meaning.

[00:26:04] Speaker 04:
Instead, the patentee made certain distinctions about what is within and is not within the term generally or substantially conical.

[00:26:13] Speaker 04:
The patentee said very clearly that it includes multi-cone surfaces, double conical surfaces.

[00:26:19] Speaker 04:
And I don't think that under a general plain and ordinary meaning of substantially conical, you would typically include a double conical surface.

[00:26:27] Speaker 04:
I don't think that would fall within the definition.

[00:26:29] Speaker 04:
But the patentee chose to define it that way.

[00:26:32] Speaker 04:
And then the patentee chose to make arguments to distinguish what they had developed from the prior art.

[00:26:38] Speaker 04:
And the arguments that the patentee made there stuck with now.

[00:26:42] Speaker 04:
They can't now go back and try to argue that they were different or that they should be narrowed in some way.

[00:26:47] Speaker 04:
The patentee's arguments were very clearly that undulations and curves are not a substantially conical surface.

[00:26:55] Speaker 04:
The Schneider 487 cup that was cited is a multi-cone surface.

[00:26:59] Speaker 04:
It has conical sections.

[00:27:00] Speaker 04:
And then it also has undulations, meaning it goes from high to low to high angle.

[00:27:06] Speaker 04:
And it has curves.

[00:27:07] Speaker 04:
And it's actually the curved section

[00:27:09] Speaker 04:
that the patent office pointed to.

[00:27:11] Speaker 04:
They said reference numeral 24.2, which is the curved portion, is a substantially conical overflow surface.

[00:27:18] Speaker 04:
And the patentee said that's not correct.

[00:27:20] Speaker 04:
It's not a substantially conical overflow surface.

[00:27:22] Speaker 04:
And the patentee focused on the fact that it's that portion that approaches the spray edge that is not substantially conical.

[00:27:32] Speaker 04:
And even went so far as to say that the examiner's assertion that Schneider 487 is substantially conical, quote, essentially reads out the meaning of conical entirely.

[00:27:42] Speaker 04:
The patentee was clearly focused on conical sections, not curves, not wave-like sections where it goes from areas of high to low angle.

[00:27:52] Speaker 04:
And that's the patentee's arguments that they're stuck with today.

[00:27:55] Speaker 04:
Now, Durr tries to recast that argument and say that it was

[00:27:59] Speaker 04:
that Schneider 487 had a lip.

[00:28:01] Speaker 04:
And that was the distinguishing feature.

[00:28:03] Speaker 04:
But that argument doesn't appear in the record.

[00:28:06] Speaker 04:
That's not what Durr said.

[00:28:08] Speaker 04:
What they said was that portion that you've pointed to, examiner, that curved portion, 24.2, is not a substantially conical section.

[00:28:17] Speaker 04:
And they didn't then define it any further than that.

[00:28:20] Speaker 04:
They didn't go on to say it's not substantially conical because it has an angular change of x degrees.

[00:28:26] Speaker 04:
They didn't say it's undulating because it has

[00:28:30] Speaker 04:
flow change of x degrees, they could have done that, but they chose not to.

[00:28:33] Speaker 04:
And so their disavowal is going to be commensurate in scope with their arguments.

[00:28:38] Speaker 04:
And their arguments were against curves in general and undulations in general.

[00:28:44] Speaker 01:
How could something be double conical but not have some sort of curve or undulation?

[00:28:50] Speaker 04:
Well, undulation would be high to low to high angle.

[00:28:55] Speaker 04:
Just high to low or

[00:28:57] Speaker 04:
this to this wouldn't be an undulation.

[00:28:59] Speaker 04:
That would just be an angular change.

[00:29:01] Speaker 04:
So I think undulation, by its very definition, means it has to go from a higher angle to a lower and then higher.

[00:29:09] Speaker 04:
So curves, there are examples.

[00:29:13] Speaker 04:
And in fact, if you look at the Schneider 487 cup, the angular change between the conical portions and the flat portions is relatively strict.

[00:29:23] Speaker 04:
There's no large curve to that.

[00:29:26] Speaker 04:
So I do think you can make and in fact there is evidence in the case that was discussed about prior Yeah dramatic dramatic angular change I agree with you and I do think I think your point is that that maybe there's some

[00:29:44] Speaker 04:
issues within the patent, that they seem to be including certain things that maybe they wish they excluded.

[00:29:50] Speaker 04:
But the patentee is free to be their own lexicographer and is stuck with the language that they choose to use.

[00:29:56] Speaker 04:
And in this case, they said double cones are okay and curves are not.

[00:30:01] Speaker 04:
That is then the definition of what these terms mean.

[00:30:05] Speaker 04:
And a person skilled in the art should be allowed to look at the words that the patentee used, what they have decided is in and outside of the scope of the claims, and rely on that.

[00:30:15] Speaker 04:
They have to have some basis for understanding what the scope of the claims is.

[00:30:19] Speaker 04:
And it's got to be based on what the patentee said.

[00:30:23] Speaker 02:
What about attached?

[00:30:24] Speaker 04:
For the attached rear cover, effectively,

[00:30:27] Speaker 04:
What DER is trying to do is use claim construction to capture EFC's design, which is unquestionably different.

[00:30:34] Speaker 04:
As Mr. Lamkin pointed out, you can look at those pictures and see that the EFC bell cup uses a

[00:30:41] Speaker 04:
completely integral bell cup where the hub, the rear surface, the spray edge is all one piece.

[00:30:47] Speaker 04:
And then EFC inserts, places a overflow surface insert on the front, which allows them to change the shape of the bell cup by using an insert of choice.

[00:30:59] Speaker 04:
That design is not shown anywhere in these patents.

[00:31:02] Speaker 04:
It's simply not in there.

[00:31:03] Speaker 00:
Well, suppose, though, that the two finished products

[00:31:08] Speaker 00:
were as identical as two products can be.

[00:31:12] Speaker 00:
But it happens that one of them was made integrally and the other was made by joining.

[00:31:21] Speaker 00:
Would your argument still be that the two products are different because the bell bottom, the bottom is attached in one case and not in the other?

[00:31:34] Speaker 04:
It's not necessarily the manner of construction.

[00:31:38] Speaker 00:
Well, that's what I'm trying to get at.

[00:31:39] Speaker 00:
Why isn't it?

[00:31:40] Speaker 00:
I mean, it seems to me that your argument about the word attached necessarily is relying on the notion of how this was constructed.

[00:31:51] Speaker 00:
Because otherwise, in my example, for example, why is that not exactly the same product even though you got there by a different path?

[00:32:02] Speaker 04:
Well, because structurally, they are different.

[00:32:04] Speaker 00:
Well, you're saying, in this case, you say they are different.

[00:32:07] Speaker 04:
Right.

[00:32:08] Speaker 00:
But the term attached, it seems to me.

[00:32:10] Speaker 00:
Are you saying that, in my example, the case in which they were put together was one in which they were attached, and the one in which it was integral was not, and that that would be enough to differentiate the two?

[00:32:27] Speaker 04:
They could be, but it's tough in the abstract in a vacuum to say.

[00:32:32] Speaker 04:
Certainly in the case of this patent, where you're looking at a person of ordinary skill in the art of rotary atomizer design, looking at what is said in this patent, I think it's clear that if the rear cover was a separate piece that is secured to the bell cup to create the rotary atomizer,

[00:32:53] Speaker 04:
then that's different.

[00:32:54] Speaker 04:
And so that's what's covered.

[00:32:56] Speaker 04:
And what's not covered is a structure where the rear portion is integral to the bell cup.

[00:33:04] Speaker 00:
It's just... Even if the finished products in each case are exactly the same?

[00:33:09] Speaker 04:
But the problem is they're not exactly the same.

[00:33:12] Speaker 00:
And actually, they're... My hypothetical, they are.

[00:33:14] Speaker 00:
And I don't make the hypothetical.

[00:33:16] Speaker 04:
And I appreciate that.

[00:33:17] Speaker 04:
And that's what I'm saying.

[00:33:18] Speaker 04:
It's hard to say in a vacuum.

[00:33:20] Speaker 04:
So I guess in a vacuum, yes, I would agree that it would be tough to say that one of those is attached and the other is not.

[00:33:28] Speaker 04:
But the test is not looking as a lay person in a vacuum.

[00:33:33] Speaker 04:
It's looking as a person of ordinary skill in the art in view of this patent.

[00:33:36] Speaker 04:
And in that case, I think it's clear that the rear cover has to be a separate piece that is attached to the bell cup.

[00:33:44] Speaker 04:
And that collectively makes the rotary atomizer.

[00:33:47] Speaker 01:
I want to ask you a couple questions about that.

[00:33:49] Speaker 01:
Looking at the intrinsic evidence, you do have some examples in the specification where it says glued.

[00:33:55] Speaker 01:
I forget what the other ways are.

[00:33:57] Speaker 01:
Welded.

[00:33:59] Speaker 00:
Welded.

[00:34:00] Speaker 01:
Welded.

[00:34:00] Speaker 01:
Thank you.

[00:34:01] Speaker 01:
Welded.

[00:34:02] Speaker 01:
And there's no example where it's integrated.

[00:34:06] Speaker 01:
Correct.

[00:34:06] Speaker 01:
We're not supposed to read examples of the claims, right?

[00:34:10] Speaker 04:
I agree with that.

[00:34:11] Speaker 04:
You're not supposed to read examples into the claims, but you do have to read the claim terms in view of the specification, as a person of ordinary skill in the art would do.

[00:34:20] Speaker 04:
And here, there is simply no support for an integral rear portion.

[00:34:26] Speaker 04:
There's nothing that would suggest.

[00:34:28] Speaker 01:
Is there anything in the specification that suggests that it's really important for the working of the invention that it be attached later?

[00:34:39] Speaker 01:
or attached by being welded or glued.

[00:34:42] Speaker 04:
I think what the specification says is that it's really important that the bell cup be hollow, and then the only way that they say to make a bell cup hollow is by attaching a rear cover.

[00:34:55] Speaker 04:
So it sort of ties into a 112 argument.

[00:34:58] Speaker 04:
There's simply no written description or enablement.

[00:35:00] Speaker 01:
You're saying a person of ordinary skill and the art wouldn't know how to make an integral rear cover

[00:35:07] Speaker 01:
that creates a hollow space.

[00:35:09] Speaker 01:
Is that what you're saying?

[00:35:10] Speaker 01:
And if you are, did you present expert testimony to that effect?

[00:35:16] Speaker 04:
I'm saying that that is factually true in this case.

[00:35:20] Speaker 04:
And in fact, it became apparent that EFC's design was better than DERC's design.

[00:35:29] Speaker 01:
But what evidence?

[00:35:30] Speaker 01:
I mean, you can't say they're a testifier.

[00:35:32] Speaker 04:
Yeah, I don't know that there's any evidence in this record that shows that.

[00:35:35] Speaker 04:
I think the evidence in this record is that the Hollow Bell Cup was important.

[00:35:41] Speaker 04:
and that the only way they say to do it is by attaching a separate piece.

[00:35:45] Speaker 01:
And that they've used- I just want to point out, the claim says a rear cover attached to the bell cup, and then it goes on to tell me more about it.

[00:35:54] Speaker 01:
It says such that, and I think such that talking about how it's attached, such that the atomizer is hollow.

[00:36:01] Speaker 01:
So why wouldn't any way of attaching it such the atomizer is hollow be sufficient?

[00:36:06] Speaker 04:
I think any way of attaching a separate piece is sufficient.

[00:36:10] Speaker 04:
But I think the claims and the specification make a clear distinction between parts that are included that are integral and a separate piece that is attached.

[00:36:20] Speaker 04:
And remember, if you read that claim, it's clear that it's a two-component system.

[00:36:25] Speaker 04:
It's a rotary atomizer that has a bell cup.

[00:36:28] Speaker 04:
And then attached to the bell cup is a rear cover.

[00:36:32] Speaker 04:
So it is a two-component system very clearly, just based on the claims.

[00:36:36] Speaker 01:
We do get a lot of claims where there might be a lot of different components, but yet they're all intergrally connected to one another.

[00:36:44] Speaker 01:
Like, say, a bicycle.

[00:36:45] Speaker 01:
A bicycle has a seat that's probably attached.

[00:36:48] Speaker 01:
A bicycle, including a seat, including a horizontal bar, including a diagonal bar.

[00:36:55] Speaker 01:
Now, it might be that the horizontal bar and the diagonal bar are

[00:37:00] Speaker 01:
Separately their interval right, but are you telling me that whenever I read a claim whenever I see you know things built out?

[00:37:09] Speaker 01:
You know in separate paragraphs like this.

[00:37:11] Speaker 04:
I'm supposed to understand that they are Mechanically distinct from one another and then attached no I think your example though shows exactly what's going on here if it was a bicycle including piece a Including piece B and including PC.

[00:37:24] Speaker 04:
They could be integral or they could be attached, but that's not what this claim says and

[00:37:28] Speaker 04:
It says a rotary atomizer that has a bell cup that includes a front surface, an overflow surface, a deflector.

[00:37:36] Speaker 04:
Those could be integral or attached.

[00:37:38] Speaker 04:
And then it says attached to that bell cup is a rear cover.

[00:37:43] Speaker 04:
And it's the distinction between a piece being attached, which indicates that it is a separate piece that's been secured to it, or saying they could have chosen to say that it's integral.

[00:37:57] Speaker 00:
Which you started off by saying that doesn't matter.

[00:38:01] Speaker 04:
What I am trying, or what I tried to say, and maybe I didn't say it clearly, was that it's not how it's made, but it does relate to the structure in the end.

[00:38:12] Speaker 04:
So yes, I guess, ultimately, how it's made relates, but it's a structural claim.

[00:38:18] Speaker 04:
What's that?

[00:38:18] Speaker 00:
Even if the two structures are identical, they're distinguished by how they were made, is what you're saying, I think.

[00:38:25] Speaker 04:
I am accept that they're not, that's the problem, is that the two structures are not the same.

[00:38:31] Speaker 01:
It's because if it's a... What two structures are you talking about?

[00:38:34] Speaker 04:
The two structures of if you had an integral rear cover versus an attached, a separate attached rear cover.

[00:38:40] Speaker 04:
The two structures are not the same.

[00:38:42] Speaker 04:
There are structural differences that impact the strength, that impact the

[00:38:49] Speaker 04:
the thickness of the various pieces.

[00:38:51] Speaker 04:
There is testimony in this case that discusses the structural differences between EFC's bell cup, which uses an integral rear piece, and DER's bell cup, which uses an attached rear cover.

[00:39:03] Speaker 04:
And because of that attachment, they are structurally different.

[00:39:10] Speaker 02:
OK.

[00:39:10] Speaker 02:
Thank you.

[00:39:23] Speaker 03:
Regarding the district determination of what substantially conical meant page 64 the appendix Doesn't say it has to have a constant slope that was the FC's argument He should simply says resembling a cone like a party hat like a traffic cone like other things that are familiar We're going to I think start with the disclaimer the argument that somehow we disclaimed any curve no matter how insubstantial

[00:39:47] Speaker 03:
I don't think you can get that out of the language of the prosecution history.

[00:39:52] Speaker 03:
If, for example, the court were to turn to page 2588, it talks about, and it has a picture of the Schneider device, and it talks about the substantially conical portion not extending all the way to the spray edge.

[00:40:07] Speaker 03:
But if you look at the edge, the point they're talking about, near the spray edge, it is a very dramatic curve.

[00:40:12] Speaker 03:
So at that point, it doesn't really look like a cone at all.

[00:40:15] Speaker 03:
It looks like if you extended it, you would end up with a bubble or half a sphere.

[00:40:19] Speaker 03:
It simply isn't conical.

[00:40:20] Speaker 03:
It's too curved.

[00:40:22] Speaker 03:
Substantially conical would tolerate some curvature, so long as it still substantially resembles a cone.

[00:40:29] Speaker 02:
So Mr. Bliss says with respect to attached, he says there's some features here which are described as included in which event they don't have to start out as separate pieces, but the use of attached with respect to the rear cover has some significance.

[00:40:45] Speaker 02:
under those circumstances.

[00:40:47] Speaker 02:
What's your response to that?

[00:40:48] Speaker 03:
Included simply means it exists.

[00:40:50] Speaker 03:
It doesn't give a relationship in terms of where they are in space.

[00:40:53] Speaker 03:
Attached means they're next to each other, and you can't pull them apart.

[00:40:56] Speaker 03:
It means connected to.

[00:40:58] Speaker 03:
Two things can be included.

[00:40:59] Speaker 03:
The wheels are included in the car.

[00:41:01] Speaker 03:
The steering wheel is included in the car.

[00:41:02] Speaker 03:
But they aren't necessarily attached to each other.

[00:41:05] Speaker 03:
They're just both included.

[00:41:06] Speaker 03:
When you talk about something being attached, it means that it is connected to.

[00:41:10] Speaker 03:
And so even if you have things that were integrally formed, like my egg carton, the carton and the hinge

[00:41:15] Speaker 03:
and the lid, they're all attached to each other, even though integrally formed.

[00:41:20] Speaker 03:
Turning briefly to the expert, I think the problem with the district court's definition is it excludes one of the inventors.

[00:41:28] Speaker 03:
Robert Held, he required experience designing atomizers.

[00:41:31] Speaker 03:
Robert Held had never designed an atomizer before.

[00:41:34] Speaker 03:
Background in fluid dynamics.

[00:41:35] Speaker 03:
Robert Held had not graduated college.

[00:41:39] Speaker 02:
Why do all the inventors have to be skilled in this particular art?

[00:41:43] Speaker 02:
They may make different contributions.

[00:41:45] Speaker 02:
There are plenty of cases that say that.

[00:41:47] Speaker 03:
Certainly, but there's simply no evidence that Robert held wasn't a huge contributor to the actual design of this of the device and Ordinarily if you're going to exclude the inventors much less one of the key inventors is probably not the right definition But the record doesn't show

[00:42:03] Speaker 02:
what his contribution was.

[00:42:05] Speaker 03:
They certainly had the opportunity to depose him on that and that he was the only inventor they deposed and there's no indication that he just, you know, for example, was a guy measuring droplet sizes which is quite critical here.

[00:42:16] Speaker 03:
Okay, I think we're out of time.

[00:42:18] Speaker 02:
Thank you.

[00:42:19] Speaker 02:
Thank you.