[00:00:00] Speaker 05:
And our final case this morning is number 24, 1845, JR Simplot Company versus McCain Foods.

[00:00:08] Speaker 05:
OK, Ms.

[00:00:08] Speaker 05:
Sweezy.

[00:00:10] Speaker 03:
Good morning, Your Honors.

[00:00:11] Speaker 03:
May it please the court?

[00:00:12] Speaker 03:
I'd like to start with the 112 issues and then touch on the two infringement issues.

[00:00:17] Speaker 03:
And on section 112, the district court took factual questions away from the jury, and it got the law wrong in the process.

[00:00:25] Speaker 03:
It made three fundamental mistakes.

[00:00:28] Speaker 03:
First, it isolated pieces of the claim language divorced from each other without looking at the claim in the full context.

[00:00:35] Speaker 03:
It's a one-step, one-limitation claim.

[00:00:38] Speaker 03:
Second, it misunderstood functional claiming and functional boundaries.

[00:00:43] Speaker 03:
And third, it picked sides on competing expert testimony, which is exactly what cannot happen at summary judgment.

[00:00:52] Speaker 03:
And if you look at the district court's footnote on page

[00:00:55] Speaker 03:
Appendix 50, footnote 22, you'll see this is an excellent example of how the District Court committed errors when it dismissed 16 pages of our expert's testimony.

[00:01:09] Speaker 03:
So in that footnote, it dismisses detailed, specific, factual evidence from our expert, Dr. Floros, and his testimony that's cited there is at Appendix 7391 to 7406, where he detailed

[00:01:25] Speaker 03:
what the person of ordinary skill in the art knows, what the background is of the person of ordinary skill in the art, how they can balance the parameters that are at issue in the claims.

[00:01:37] Speaker 03:
He responded.

[00:01:38] Speaker 05:
Where's the testimony, in terms of indefiniteness, where's the testimony that someone of ordinary skill in the art would know what

[00:01:47] Speaker 05:
was meant by resistance to cutting and how to measure it.

[00:01:51] Speaker 05:
There's a reference to a mechanism for measurement, but I don't see any testimony about how someone of skill in the art would know where when the resistance level had been achieved.

[00:02:07] Speaker 03:
Your honor I'll find you that testimony and I want to start with the patent though because the patent itself in column 3 and this is at appendix 150

[00:02:15] Speaker 03:
says that you use a texturometer.

[00:02:17] Speaker 03:
This is a known device.

[00:02:19] Speaker 05:
Yeah, but the patent also suggests that reducing the resistance to cutting requires something more in terms of what's required to be shown.

[00:02:40] Speaker 03:
Your Honor, you might be referring to the not heating too much piece of it.

[00:02:44] Speaker 05:
No, no, no.

[00:02:46] Speaker 05:
The qualitative assessments were performed.

[00:02:50] Speaker 05:
And they talked about guaranteeing a sheer cut.

[00:02:53] Speaker 05:
And there's all sorts of discussion here about what might be measured by this device.

[00:03:00] Speaker 05:
And I don't see any expert testimony telling us how someone would know what was meant by all of that and when that was achieved.

[00:03:10] Speaker 03:
Your Honor, if you look at, for instance, Appendix 7397, that's carrying over from paragraph 611, Dr. Flores specifically talks about the objective measurement of a texturometer, that that was known in the field.

[00:03:26] Speaker 05:
Yeah, yeah.

[00:03:27] Speaker 05:
The measurement device was known.

[00:03:29] Speaker 05:
But where's the testimony that someone opposite would know when the resistance

[00:03:39] Speaker 05:
reducing the resistance had been achieved.

[00:03:42] Speaker 03:
That is what the texturometer does.

[00:03:46] Speaker 05:
That's not the question.

[00:03:49] Speaker 05:
I understand there's a texturometer.

[00:03:52] Speaker 05:
What's the evidence as to how someone skilled in the art would know when the level of reducing resistance had been achieved?

[00:04:04] Speaker 05:
Because the patent talks about all sorts of things.

[00:04:07] Speaker 05:
that, you know, like the shear cut and so on and so forth that would be encompassed within that.

[00:04:17] Speaker 03:
Your Honor, the texturometers, I know, if I can just respond on this point, because it's a specific device that's known in the prior art.

[00:04:25] Speaker 05:
That's not the question I'm asking.

[00:04:26] Speaker 05:
I'm asking you is how is someone supposed to know when the objective, the claim limitation, has been achieved

[00:04:35] Speaker 05:
Using the texturometer what you know what what is it?

[00:04:39] Speaker 05:
What's the measurement?

[00:04:43] Speaker 03:
The measurement will depend on the produce right so this is a process that cuts across all fruits and vegetables because what matters is the the new use of a known technology and the Texturometer and the person of ordinary skill, and you aren't using it

[00:04:59] Speaker 03:
would understand, in addition to the qualitative assessment, you can actually touch the potato and feel that it's easier to cut.

[00:05:06] Speaker 05:
OK, but that sounds like something that's indefinite, a qualitative assessment.

[00:05:10] Speaker 03:
But the patent goes on and says you can use a texturometer as a quantitative measurement.

[00:05:16] Speaker 03:
It doesn't need to specify specific parameters for each produce because that is known in the field with our experts saying that a person of ordinary skill in the art is familiar with this device and exactly what the texturometer measures.

[00:05:31] Speaker 03:
And it's going to vary.

[00:05:33] Speaker 03:
Maybe I can point you to an analogy that our expert used.

[00:05:37] Speaker 04:
What kind of reading does a texturometer give you?

[00:05:44] Speaker 03:
A numerical reading.

[00:05:45] Speaker 01:
Does the patent specification give a range of values for the texturometer's numerical value that would be desirable?

[00:05:55] Speaker 03:
No, it doesn't.

[00:05:56] Speaker 03:
But again, this is a tool like a thermometer, right?

[00:05:58] Speaker 03:
A thermometer outputs a numerical value.

[00:06:01] Speaker 03:
Sure.

[00:06:03] Speaker 04:
But a thermometer may have a value, but that value may not tell you whether something's sufficiently done or not.

[00:06:11] Speaker 04:
And that's going to depend upon

[00:06:13] Speaker 04:
a lot of different things, including what doneness is desired for that particular meat or whatever.

[00:06:21] Speaker 04:
Like if you're cooking a piece of steak, you can put a temperature probe in and know that steak is 120.

[00:06:29] Speaker 04:
Is that done?

[00:06:32] Speaker 04:
Some people would say yes.

[00:06:33] Speaker 04:
A lot of people would say no.

[00:06:35] Speaker 04:
How do we know what range gets to an acceptable cutting range

[00:06:44] Speaker 04:
If there is... Is there an accepted range for every specific vegetable that it is sufficiently cuttable at this number?

[00:06:54] Speaker 03:
What our expert is saying, and the patent supports, is that you don't need a specific numerical value.

[00:07:02] Speaker 03:
The claims don't say exactly at this point.

[00:07:06] Speaker 05:
How do you know when the claim limitation is being satisfied?

[00:07:08] Speaker 05:
That's the problem.

[00:07:09] Speaker 05:
I don't see... I read this expert testimony.

[00:07:12] Speaker 05:
I don't see any expert testimony.

[00:07:13] Speaker 05:
Yes, he talks about using this device to measure, but he doesn't say what measurements would be within the climb limitation.

[00:07:24] Speaker 03:
And he didn't need to, just like we don't need to for a thermometer.

[00:07:27] Speaker 03:
And it's binary.

[00:07:29] Speaker 03:
It's going to be easier.

[00:07:30] Speaker 04:
I mean, if you stick the thermometer in anything and gives you a number, that still doesn't tell you whether that's within the range covered by the patent.

[00:07:41] Speaker 04:
But a person of order is- You've got to know what the range is.

[00:07:45] Speaker 03:
Not when the claims themselves don't say this is the specific range you're going to.

[00:07:49] Speaker 03:
It's either you've reduced the resistance to cutting or not.

[00:07:54] Speaker 05:
And there's no evidence from the defendants that- What's the numerical value that qualifies as reducing the resistance to cutting?

[00:08:04] Speaker 03:
That is something, again, with a thermometer that's more familiar to me, at least,

[00:08:08] Speaker 03:
that is well known to the person of ordinary skill in the art.

[00:08:11] Speaker 03:
And we're here on summary.

[00:08:12] Speaker 01:
Is it a view that any reduction in resistance to cutting that's different than what the vegetable previously was is sufficient?

[00:08:20] Speaker 01:
It's just a really broad claim?

[00:08:23] Speaker 03:
It is a broad claim because it covers all types of produce.

[00:08:26] Speaker 01:
So I'm asking you a specific question.

[00:08:29] Speaker 01:
Yes.

[00:08:30] Speaker 01:
I was asking, let me try again.

[00:08:32] Speaker 01:
I was saying, is it your view

[00:08:34] Speaker 01:
that in order to reduce the resistance to cutting means any amount of reduction in resistance to counting.

[00:08:43] Speaker 01:
Is that what you're saying?

[00:08:44] Speaker 03:
I think that's a fair reading and certainly at the summary judgment stage should be inferred in our favor.

[00:08:49] Speaker 03:
I think you can also compare it

[00:08:51] Speaker 03:
that we are operating with a claim in the context of a prior art system, right?

[00:08:55] Speaker 03:
So the person of ordinary skill in the art was already preparing produce for cutting and cooking.

[00:09:02] Speaker 03:
And so the person of ordinary skill in the art already had knowledge of what that level should be.

[00:09:08] Speaker 03:
And so what we have... What is the level?

[00:09:11] Speaker 05:
Your witness never said what the level was.

[00:09:14] Speaker 05:
He said, use this device.

[00:09:17] Speaker 05:
But he didn't say, I read this device.

[00:09:19] Speaker 05:
And if there's this reading on the device, that's reducing the resistance to cutting.

[00:09:23] Speaker 05:
He didn't say that.

[00:09:24] Speaker 05:
He didn't tell us that.

[00:09:25] Speaker 05:
And particularly in the light of the specification, which seems to define resistance to cutting as being something that's fairly complicated.

[00:09:36] Speaker 03:
Let me offer two points.

[00:09:37] Speaker 03:
There's no evidence from the defendants on this.

[00:09:39] Speaker 03:
And this is, of course, their burden, both at summary judgment

[00:09:43] Speaker 03:
on validity as clear and convincing evidence.

[00:09:46] Speaker 03:
And again, this is not, our expert used an analogy of a microwave, right?

[00:09:52] Speaker 03:
We can figure out how to get the food hot enough.

[00:09:57] Speaker 03:
And there's a range of what that is, but it's hot enough.

[00:10:00] Speaker 03:
And we might vary, but I know what it's going to be hot enough.

[00:10:04] Speaker 03:
a person using a person of skill in the art knowing a texturometer particularly because I thought the invention was trying to not eat it right and maybe in that that wasn't the best analogy but in terms of already knowing

[00:10:19] Speaker 03:
what you want the produce to get to.

[00:10:21] Speaker 03:
You want it to be a certain texture so that it's easier to cut.

[00:10:25] Speaker 03:
The person of ordinary skill in the art already had that goal, was aware of those values, those numerical values.

[00:10:31] Speaker 03:
The patent didn't need to reteach all of that.

[00:10:33] Speaker 05:
Where does your expert say that someone who posits would know what the values were?

[00:10:38] Speaker 05:
I don't see that in the testimony.

[00:10:40] Speaker 03:
Your Honor, I think it's a fair inference, again, between the patent itself, which talks about Appendix 149, the background.

[00:10:48] Speaker 05:
So your answer is the expert did not testify about that.

[00:10:51] Speaker 03:
He didn't provide numerical values.

[00:10:53] Speaker 04:
If this is so easy and everybody that's a skilled artist would know for a carrot the range would be X, for a potato the range would be Y, for a green bean the range would be Z, then why isn't there anything remotely saying that in the record?

[00:11:14] Speaker 04:
All you have is this vague thing saying, well, everybody knows what it would be for all the different vegetables.

[00:11:20] Speaker 04:
But how?

[00:11:20] Speaker 04:
I mean, they've got to be on notice of whether they're infringing or not based upon what range they're cutting in.

[00:11:29] Speaker 03:
And they had that knowledge based on the prior art process.

[00:11:32] Speaker 03:
And so using a different technology to achieve the same thing, you're still... Who said that?

[00:11:40] Speaker 03:
That's in the patent.

[00:11:41] Speaker 03:
The patent is replacing.

[00:11:42] Speaker 03:
In column one, it talks about the prior art process.

[00:11:45] Speaker 03:
There was one process, and it was putting the produce in a hot water bath for a long period of time.

[00:11:52] Speaker 03:
And you did that to achieve reduced cutting resistance.

[00:11:58] Speaker 03:
And our patent is very specific.

[00:12:00] Speaker 05:
But there's no indication of what, in the prior art, was meant to reducing cutting resistance either.

[00:12:09] Speaker 03:
I don't know that I can point your honor to that, but that isn't an argument that the defendants pursue with any testimony of their own that it somehow is difficult to figure this out.

[00:12:18] Speaker 03:
Our expert says the person of ordinary skill... Was this an issue below this particular term?

[00:12:25] Speaker 03:
Yes.

[00:12:25] Speaker 03:
I mean, it's a one-step claim, so it was.

[00:12:28] Speaker 03:
And it's defendant's burden to prove that this was somehow indefinite.

[00:12:31] Speaker 03:
And when you have the person of ordinary skill in the art operating

[00:12:34] Speaker 03:
against a prior art process that knew how to use a texturometer, stick it in, and see if it's easier to cut, you can do the same thing through a different technology.

[00:12:43] Speaker 03:
That's what our patent is claiming.

[00:12:45] Speaker 03:
It's replacing one step in the prior art process with a different technology to get to the same point.

[00:12:52] Speaker 03:
And there's been no suggestion that a person of ordinary skill in the art didn't know how to figure that out with a texturometer.

[00:13:03] Speaker 03:
I see that I'm into my rebuttal.

[00:13:06] Speaker 03:
I would just like to emphasize that we are here on summary judgment.

[00:13:11] Speaker 03:
There is intrinsic and extrinsic evidence, including the expert report I pointed to, and the district court misunderstanding functional claiming.

[00:13:19] Speaker 03:
And I think our conversation this morning relates to that, because these are claims that are achieved, and their definiteness is promoted by the function they are performing.

[00:13:29] Speaker 03:
I'll save the rest of my time for rebuttal.

[00:13:32] Speaker 03:
Thank you.

[00:13:41] Speaker 00:
Good morning, Your Honor.

[00:13:42] Speaker 00:
It's Brian Barroker on behalf of JR Simplot.

[00:13:44] Speaker 00:
I want to start with the fundamental premise, which is that the understanding that McCain is urging that summary judgment somehow that this issue should be treated as if it's a factual dispute that needs to go to the jury.

[00:13:57] Speaker 00:
Two problems with that.

[00:13:58] Speaker 00:
This court's Berkheimer presidential opinion says that indefiniteness is reviewed for clear error.

[00:14:04] Speaker 00:
And any factual issues are revered.

[00:14:06] Speaker 00:
I'm sorry.

[00:14:07] Speaker 00:
So the ultimate question of indefiniteness is reviewed de novo, and any factual issues are reviewed for clear error.

[00:14:14] Speaker 00:
That means that the court can and often does decide issues of summary judgment.

[00:14:19] Speaker 00:
The actual posture in Berkheimer was a summary judgment decision.

[00:14:23] Speaker 00:
Berkheimer cites the Cox v. Sprint case in which the court there decided the issue on summary judgment.

[00:14:31] Speaker 00:
So the idea that this is an issue that goes to the jury.

[00:14:33] Speaker 01:
I'm sorry to interrupt you, but I think what I hear you saying is because

[00:14:37] Speaker 01:
You have to do claim construction.

[00:14:38] Speaker 01:
And if you can't construe a claim, then the claim is indefinite.

[00:14:42] Speaker 01:
And claim construction is something for the judge.

[00:14:45] Speaker 01:
It's that this is not something that should be going to the jury, regardless of whether there's factual questions or not.

[00:14:50] Speaker 00:
Correct.

[00:14:51] Speaker 00:
The court has no obligation to send this issue to the jury.

[00:14:55] Speaker 00:
And there's no precedential opinion of this court that says that indefiniteness factual questions have to go to the jury.

[00:15:00] Speaker 00:
There's been cases that say it can if it wants to send those issues to the jury.

[00:15:04] Speaker 00:
But there's no case.

[00:15:05] Speaker 00:
And certainly the Teva decision wasn't indefinite in this case.

[00:15:08] Speaker 00:
The Supreme Court's Teva decision in which it said these factual issues should be decided by the court is a precedential, obviously, decision that this court has to follow.

[00:15:18] Speaker 00:
So with that.

[00:15:19] Speaker 00:
On this record, there is no record to support the idea, to the points your honors were making, that a person of skill in the art would know how to measure ease of cutting.

[00:15:29] Speaker 00:
There's no quantitative measurement.

[00:15:31] Speaker 00:
How much more does it need to be easier?

[00:15:33] Speaker 00:
That's not in the record.

[00:15:35] Speaker 00:
And there's also testimony that texturometers aren't like thermometers.

[00:15:39] Speaker 00:
Texturometers give multiple different force measurements.

[00:15:43] Speaker 00:
It's often a maximum.

[00:15:45] Speaker 00:
an average, an initial, and it's measuring it over the period of the cut.

[00:15:50] Speaker 00:
So as you pierce the fruit or vegetable, there's going to be one force.

[00:15:53] Speaker 00:
But as you enter the fruit or vegetable, there's going to be different forces that are needed to make the cut.

[00:15:57] Speaker 00:
You measure all of those things.

[00:16:00] Speaker 00:
And even their own record, a McCain documented appendix 8427.

[00:16:04] Speaker 00:
This is an internal document of theirs that shows that these force measurements can lead to eight different types of measurements.

[00:16:12] Speaker 00:
So there's nothing in this record to say which of these measures in which you would use to make this ease of cutting assessment.

[00:16:18] Speaker 00:
So there's multiple problems, even with the ease of cutting piece of the claim alone.

[00:16:24] Speaker 00:
And then there's also additional problems with the preheating step.

[00:16:28] Speaker 00:
As Your Honors were alluding to earlier, when you do this application of the electric field, you can't heat the fruit or vegetable to what is a preheating step.

[00:16:38] Speaker 00:
But what does that mean?

[00:16:39] Speaker 00:
It depends on the fruit or vegetable.

[00:16:42] Speaker 00:
The patent specification gives one example of what a preheating step may be for a potato.

[00:16:46] Speaker 00:
There's nothing in this record about what preheating would be for any other fruit or vegetable.

[00:16:53] Speaker 00:
So there's just no basis upon which a person's skill in the art will know ahead of time whether they are going to infringe

[00:17:00] Speaker 00:
because they don't know whether the field strength they're using is going to be strong enough to cause it to be easier to cut or not so strong as to cause it to be preheating.

[00:17:10] Speaker 00:
And on the backside, there's nothing in this record that enables the person of skill in the art to know whether they've actually infringed because they don't know whether they've made the fruit or vegetable easier to cut.

[00:17:21] Speaker 00:
So on that basis alone, this court can affirm the judgment

[00:17:26] Speaker 00:
the district court of indefiniteness and that's the standard that Judge Hughes said earlier you're reviewing judgments not opinions and this judgment is correct.

[00:17:39] Speaker 00:
My colleague didn't get to the other 112 issues but the court's judgment below can also be affirmed on the written description and enablement grounds because this patent gives very few

[00:17:52] Speaker 00:
examples, and yet it covers any fruit or vegetable, any field strength, so long as it's easier to cut.

[00:17:59] Speaker 00:
Under this court's precedence, that renders this claim lacking in written description and provides another reason to affirm the judgment below.

[00:18:09] Speaker 00:
So there's multiple bases under 112 that this judgment should be affirmed.

[00:18:16] Speaker 00:
Any questions, Your Honor, about the 112 issues?

[00:18:20] Speaker 00:
Any questions about any other issues that I'm happy to answer, but otherwise I'll cede my time to my colleague from ALIA.

[00:18:27] Speaker 05:
Thank you.

[00:18:30] Speaker 05:
Mr. Grossberg.

[00:18:35] Speaker 05:
Ms.

[00:18:35] Speaker 05:
Grossberg.

[00:18:43] Speaker 02:
May it please the court, Leslie Grossberg on behalf of the third party defendants, Valaya and Food Physics.

[00:18:53] Speaker 02:
The district court was not obligated to accept McCain's expert's legal conclusions that it would have been easy or a skilled artisan would have known to carry out extensive testing and just inherently known what the objective bounds of the claim term are.

[00:19:13] Speaker 02:
McCain has tried to make an argument that on summary judgment, this was a question for the jury.

[00:19:21] Speaker 02:
Yes, it is.

[00:19:21] Speaker 02:
Sure.

[00:19:22] Speaker 04:
This is claim construction, so clearly it's de novo.

[00:19:25] Speaker 04:
But what if expert testimony, so extrinsic evidence, could resolve the indefiniteness issue?

[00:19:34] Speaker 04:
Is the court not obligated to look at extrinsic evidence to determine whether the patent is indefinite?

[00:19:42] Speaker 02:
No, I don't believe so, Judge Hughes.

[00:19:44] Speaker 02:
I think that under the Teva decision, that that is a subsidiary finding a fact that is squarely within the province of the district court to decide without the question going to a jury.

[00:19:54] Speaker 05:
But it may not have to go to the jury, but doesn't the court have to look at the evidence?

[00:19:58] Speaker 02:
Well, I think that here McCain's own evidence, its own expert's testimony was undisputed.

[00:20:04] Speaker 02:
The district court considered his opinions and found that this term is indefinite.

[00:20:13] Speaker 02:
What is a high electric field?

[00:20:15] Speaker 02:
Dr. Floros said you have to test a bunch of different things to know.

[00:20:19] Speaker 02:
And in fact, because the skilled artisan would know to test for all these different variables to determine whether using the blade textrometer method, whether something is easier to cut, that doing all that testing is necessary.

[00:20:37] Speaker 02:
And that's why this claim language just does not put the public on notice of what's claimed.

[00:20:44] Speaker 02:
And that's because the...

[00:20:49] Speaker 02:
Even the specified preferred embodiment that is disclosed in the patent of 30 to 75 volts per centimeter, Dr. Floros himself testified that that might not constitute a high electric field.

[00:21:06] Speaker 02:
based on the other conditions at play.

[00:21:09] Speaker 02:
And so in view of that, I think that the district court did consider and credit Dr. Flores' testimony.

[00:21:16] Speaker 02:
I think it was undisputed.

[00:21:17] Speaker 02:
The defendant certainly didn't dispute that part of his testimony.

[00:21:22] Speaker 02:
And based on McCain's own expert and applying McCain's own proposed construction of this claim term,

[00:21:29] Speaker 02:
found that it does not inform with reasonable certainty what is available to the public and what is claimed under the patent.

[00:21:40] Speaker 05:
Anything further?

[00:21:42] Speaker 02:
On the issue of whether or not the district court applied the correct standard for indefiniteness You know I would just add that I Think that the record does show that the district court was well aware that to invalidate a patent The standard is clear and convincing evidence and that for indefiniteness

[00:22:03] Speaker 02:
Specifically, at least in the district court's previous two claim construction orders had recited that standard.

[00:22:12] Speaker 02:
And so I don't think that this is a situation where the district court instructed a jury on the wrong legal burden of proof.

[00:22:20] Speaker 02:
This is a situation where the district court clearly knew what the standard was and applied it appropriately.

[00:22:30] Speaker 03:
Thank you.

[00:22:30] Speaker 05:
Thank you.

[00:22:33] Speaker 05:
Thank you.

[00:22:35] Speaker 03:
Four brief points.

[00:22:36] Speaker 03:
The district court was absolutely obligated to accept our expert's testimony and draw inferences in our favor.

[00:22:42] Speaker 03:
This was summary judgment.

[00:22:44] Speaker 05:
The problem is he never pointed to any expert testimony about what it means to be easier to cut.

[00:22:50] Speaker 03:
You're right, Your Honor, and that's my second point, because our expert said this is easy, and that's an appendix, specifically an appendix 7400.

[00:22:57] Speaker 04:
But it's testimony, like you're saying.

[00:22:59] Speaker 04:
This is definite because our expert said everybody would know

[00:23:02] Speaker 04:
what would make it definite.

[00:23:04] Speaker 04:
That's just conclusory.

[00:23:07] Speaker 03:
Not with the rest of his testimony, respectfully, Your Honor, where he talks about what's already known in the field, the prior art process and the texturometer.

[00:23:15] Speaker 03:
And particularly at summary judgment, if all we have missing is the listing of specific numerical values, that is not a basis to find undisputed facts.

[00:23:24] Speaker 03:
We disputed every fact that defendants put forward, and that's starting at appendix.

[00:23:29] Speaker 05:
Where does he tell us what numbers you'd use from the texturometer?

[00:23:32] Speaker 04:
He doesn't your honor and if that's all that's missing that is not a basis for summary judgment My third point is that we are not here unclear error I mean if those numbers are required to set the outer boundaries of this claim and They're not in the patent claims are not in the specifications and all his testimony is well everybody would know what all those numbers are for every specific

[00:24:00] Speaker 04:
vegetable at issue, that's a legal conclusion, not a factual conclusion.

[00:24:05] Speaker 04:
It sounds to me like it's basically saying, well, it's not indefinite because everybody would figure it out, not how they would figure it out or that they would understand how to figure it out.

[00:24:14] Speaker 04:
Just that it's, they would know it.

[00:24:17] Speaker 03:
Everybody had already figured it out because people were already treating produce with this different technology, but still measuring the exact same thing of the produce.

[00:24:29] Speaker 03:
Is it easier to cut or not?

[00:24:30] Speaker 04:
And as the district court itself recognized, if that was so apparent, then you would think you would have seen some at least example of that in your expert opinion somewhere.

[00:24:41] Speaker 03:
Your Honor, again, because this is summary judgment, the inferences go in our favor.

[00:24:45] Speaker 04:
I mean, you can harp on summary judgment all you want, but this is claim construction.

[00:24:48] Speaker 04:
And I don't think the district court's even obligated to look at extrinsic evidence if it determines that the intrinsic evidence as a matter of law makes this indefinite.

[00:24:57] Speaker 03:
I did want to get to that point about the standard of review.

[00:24:59] Speaker 03:
This is not claim construction.

[00:25:01] Speaker 03:
We had a claim construction.

[00:25:03] Speaker 03:
There is a construction that the court gave.

[00:25:06] Speaker 03:
Defendants moved on to summary judgment.

[00:25:09] Speaker 03:
They did not ask for Rule 52 findings.

[00:25:11] Speaker 03:
In fact, they asked for summary judgment.

[00:25:12] Speaker 03:
And even on appeal, on the first page of Simplot's brief, it is still positing your decision as whether there is evidence for a reasonable fact finder, the juror, to find in McCain's favor.

[00:25:26] Speaker 03:
And on summary judgment, when they have the burden, both at summary judgment and on invalidity, there is enough.

[00:25:31] Speaker 03:
And there are enough inferences.

[00:25:33] Speaker 03:
This is not clear error in the cases that they cite.

[00:25:36] Speaker 03:
Either did exactly a rise in claim construction.

[00:25:39] Speaker 05:
They were a hatch waxman cases where the judge itself is the fact finder Or they just even reach it Thank you all counsel the case is submitted that concludes our session for this morning