[00:00:00] Speaker 02: Our next case is Little Giant Ladder Systems LLC versus Tri-Cam Industries, Inc. [00:00:07] Speaker 02: 24-2115. [00:00:08] Speaker 02: Councilor Miller, you have reserved three minutes of your time for rebuttal, correct? [00:00:15] Speaker 03: Correct. [00:00:16] Speaker 03: Thank you, your honor. [00:00:17] Speaker 03: May it please the court. [00:00:20] Speaker 03: The district court erroneously construed the term cavity by imposing an unreasonably narrow construction for cavity. [00:00:30] Speaker 03: First, the district court acknowledged that the plain meaning of cavity is a hollowed out space in a mass, period. [00:00:38] Speaker 03: The district court looked at the examiner's explanation of cavity in the notice of allowance, but then selectively relied on just part of the examiner's explanation of cavity and disregarded the context and caveats of the examiner. [00:00:53] Speaker 00: Isn't this the construction you asked for? [00:00:55] Speaker 00: It claims construction. [00:00:57] Speaker 03: Your Honor, no. [00:00:58] Speaker 03: I think Apolize argue, pages 9 and 44 of their brief, they make allusion to us proposing the construction that the court adopted. [00:01:12] Speaker 03: But you can't look at the fact that our construction had the language, doesn't pass all the way through, and then say that the court adopted our construction. [00:01:21] Speaker 03: You have to read the context of our argument. [00:01:24] Speaker 03: And at every stage during claim construction, [00:01:28] Speaker 03: We explained our understanding of doesn't go all the way through is doesn't go all the way through in enough directions that it can perform the function of a cavity. [00:01:38] Speaker 01: I don't think that was in your initial claims construction brief. [00:01:41] Speaker 03: It was. [00:01:42] Speaker 03: In fact, Appendix 266 to 267, our opening claim construction brief, we argued [00:01:52] Speaker 03: to construe the entire phrase, not just the word cavity, altogether. [00:01:57] Speaker 03: And we argued that the examiner had the caveat of it doesn't pass all the way through such that it can cover or hide the bracket. [00:02:10] Speaker 03: Then we argued [00:02:12] Speaker 03: based on this intrinsic record, a posita would understand that as long as the cavity does not pass all the way through the handle in enough directions that it can hide or cover more than the bracket. [00:02:25] Speaker 04: Just to clarify here, my understanding is that your position below from Markman to summary judgment was you had a specific understanding of cavity. [00:02:39] Speaker 04: being a hollowed out space does not pass all the way through. [00:02:43] Speaker 04: That was the formal articulation of it. [00:02:45] Speaker 04: But then you're arguing for your preferred understanding of does not pass all the way through. [00:02:52] Speaker 04: Is that fair? [00:02:54] Speaker 03: Your Honor, I think that's fair. [00:02:56] Speaker 03: Because when we say doesn't pass all the way through, for example, let's take figure 13A. [00:03:01] Speaker 03: Let's take the handle in the preferred embodiment. [00:03:03] Speaker 04: Right. [00:03:04] Speaker 04: But just so I can set the table here a little more, [00:03:07] Speaker 04: So then, therefore, in your view, what our task, what this court's task is, is to try to understand what is the best understanding of does not pass all the way through. [00:03:20] Speaker 03: I think this court's task is, first, it's de novo review on what the proper construction of cavity is. [00:03:26] Speaker 03: Now, that is not limited to, as this court's precedents have said, this court is not bound by either party's proposal. [00:03:33] Speaker 03: So this court could adopt the plain and ordinary meaning, which the district court adopted. [00:03:39] Speaker 04: Things are not quite that free form. [00:03:41] Speaker 04: I mean, if you all along had urged for a construction of cavity that included the phrase, does not pass all the way through, and then again, in your blue brief to us, you underscore your preferred understanding of does not pass all the way through. [00:04:01] Speaker 04: It seems like by the time you bring up in the gray brief, an invitation for this court to just completely drop does not pass all the way through. [00:04:09] Speaker 04: It feels doubly waived. [00:04:11] Speaker 04: It wasn't brought up in your blue brief. [00:04:12] Speaker 04: It was never brought up in front of the district court. [00:04:15] Speaker 04: It just doesn't seem like a good way to run a railroad. [00:04:19] Speaker 04: where you can argue one thing to the district court the whole time. [00:04:23] Speaker 04: The district court adopts it, and then in your gray brief on the appeal level, you do a hard right turn and go in a completely different direction away from everything you argued before. [00:04:33] Speaker 04: You are right that claim construction is de novo, but it doesn't mean it's so free form as to not have any kinds of rules in place in how people should present their arguments. [00:04:46] Speaker 03: Your honor, I agree that the plain and ordinary meaning proposal in the gray brief is one that we proposed as an alternative that the court in its discretion could adopt on a de novo review. [00:04:57] Speaker 03: However, I also disagree that the court adopted the construction as we were arguing it from the beginning. [00:05:05] Speaker 04: Well, the formal construction was hollowed out space does not pass all the way through. [00:05:11] Speaker 04: And then perhaps you had some argument about what does does not pass all the way through mean. [00:05:17] Speaker 04: But nevertheless, the court adopted the hollowed out space does not pass all the way through. [00:05:22] Speaker 04: It just didn't agree with your ultimate preferred understanding of does not pass all the way through. [00:05:28] Speaker 04: In other words, the construction of the construction. [00:05:30] Speaker 03: And that's a different question. [00:05:32] Speaker 03: Well, what the court did in the claim construction order was there were two holdings. [00:05:37] Speaker 03: And two holdings that led us and our expert to believe that the court was using the phrase doesn't pass all the way through, but not in the absolute way that the court further elaborated on in summary judgment. [00:05:52] Speaker 03: For example, in the claim construction order, the court said the cavity [00:05:58] Speaker 03: as the examiner stated doesn't pass all the way through but the court also stated that the lever style handle [00:06:04] Speaker 03: depicted in figure 13A, has a hollowed out space in its mass that does not pass all the way through. [00:06:11] Speaker 03: So we look at the lever style handle in the embodiment that the court cites as an example of its construction. [00:06:20] Speaker 03: And the cavity defined by that handle does pass all the way through in some directions, but not in others. [00:06:27] Speaker 04: But the judge also in that same paragraph rejected the idea that a tunnel would be a cavity. [00:06:35] Speaker 04: Therefore, I think the fact that your expert then came forward with notions of taco shells and tunnels is the problem. [00:06:50] Speaker 03: What it was was there was a disagreement on what the scope of doesn't pass all the way through really means. [00:06:57] Speaker 03: Because if you look at the handle, for example, in the patent, and you ask somebody the question, does this cavity pass all the way through? [00:07:04] Speaker 03: The answer could be both yes and no. [00:07:07] Speaker 03: It doesn't pass all the way through in these directions. [00:07:09] Speaker 03: It does here. [00:07:10] Speaker 03: The statement about tunnels in the claim construction order [00:07:14] Speaker 03: was not a clear holding that cavity excludes tunnels. [00:07:18] Speaker 03: The court did say one might more naturally describe it with tunnel, but the court didn't say you cannot describe that type of a [00:07:28] Speaker 03: hollowed out space with the word cavity. [00:07:32] Speaker 03: And so when the court got to summary judgment, the court went to the preferred embodiment in the patent to explain how the construction applies, but then imported more limitations from the figures that were never part of claim construct. [00:07:45] Speaker 01: I actually think what the court was doing was looking exactly at the language of claim one, because claim one describes the handle in relationship to the rail. [00:07:55] Speaker 01: And that's what figure 13A shows. [00:07:58] Speaker 01: But that's what the claim says, is that we've got the first component, the handle, is in the first rotational position. [00:08:08] Speaker 01: That's flush against the rail. [00:08:11] Speaker 01: And in that position, which is 13A, there is no passing through. [00:08:16] Speaker 01: And as the [00:08:18] Speaker 01: Appellee argues in the red brief, you're defining the handle as a free-floating structure and not in the context of claim one, which is the only time we're looking at cavity. [00:08:32] Speaker 03: Well, I disagree that what the court described with regard to 13A, it comes from the claim language. [00:08:39] Speaker 03: The claim language doesn't say that the rail [00:08:43] Speaker 03: defines the cavity, or that the rail is part of the boundaries of the cavity. [00:08:47] Speaker 01: It defines the position of the handle. [00:08:50] Speaker 03: It says when the handle is in that position, then it says the bracket is inside a cavity defined by the handle, by the first component. [00:09:00] Speaker 03: So only the first component defines the cavity. [00:09:03] Speaker 03: And so when you want to see if [00:09:06] Speaker 03: and the cavity goes all the way through, you look at the structure from which the cavity is hollowed out. [00:09:13] Speaker 03: You don't look at bounding it by independent structures and then calling that enclosed space the cavity. [00:09:18] Speaker 04: The phrase came from the examiner, clearly, in his notice of allowance. [00:09:23] Speaker 04: The phrase does not pass all the way through. [00:09:26] Speaker 04: Correct. [00:09:26] Speaker 04: And he, in there, he said, as shown by the drawings in the instant invention, [00:09:33] Speaker 04: So I think you would then look at figures 13A and 13B, as we were just hearing from Judge Freeman. [00:09:41] Speaker 04: And then when you look at 13A and 13B, what you see is a situation where the cavity, the first component, is in a first rotational position and a second rotational position. [00:09:53] Speaker 04: And in each of those two rotational positions, one end of the bracket is exposed because [00:10:00] Speaker 04: the cavity is not a true perfect dome where all the sides are the same height. [00:10:06] Speaker 04: Whenever the bracket is exposed on one end, the cavity closes up and covers the other end. [00:10:17] Speaker 04: And I think in the context of [00:10:20] Speaker 04: as shown by the drawings of the invention, that reference by the examiner, he or she is talking about the reference of what is going on with that cavity in terms of [00:10:34] Speaker 04: What is it exposing in either of the two rotational positions? [00:10:40] Speaker 03: Well, I believe that bringing in every aspect of figure 13a into the claim simply because the examiner says, as shown, would be wrong. [00:10:52] Speaker 03: What the examiner said was, as shown in the figures, [00:10:55] Speaker 03: Such that it can hide or cover more than a majority of the bracket. [00:11:00] Speaker 03: That's it. [00:11:00] Speaker 03: That's what the examiner meant That's what the examiner said so to also say the examiner also meant [00:11:08] Speaker 03: that the cavity must enclose and surround the bracket, the way the district court said in the summary judgment decision. [00:11:14] Speaker 03: And for it to also say the examiner meant it can't pass all the way through in one direction. [00:11:20] Speaker 03: It just says it must not pass all the way through such that it can hide [00:11:26] Speaker 03: cover more than a majority the bracket that's it and to read more into the claim from the figures based on an examiner's statement in the notice of allowance which even the district court said [00:11:40] Speaker 03: was unclear and inconsistent is going a step too far and is unduly narrowing the claim term. [00:11:47] Speaker 03: We're already narrowing from the plain meaning to it doesn't pass all the way through. [00:11:51] Speaker 03: But to say that it doesn't pass all the way through in any direction, absolutely, the way the district court did, excludes that embodiment when the claim language says the cavity is defined by the first component. [00:12:06] Speaker 03: And so when you're looking at whether it passes all the way through, [00:12:11] Speaker 03: The plain meaning of cavity is a hollowed out space in a mass. [00:12:15] Speaker 03: Does it pass all the way through the mass from which it's hollowed out? [00:12:19] Speaker 03: And it's got to be defined by the first component. [00:12:22] Speaker 03: So that's where the court went wrong. [00:12:25] Speaker 03: And the court faulted the expert for not following the further explanations in the summary judgment order of surrounding and enclosing that were not present in the claim construction order at the time of expert reports. [00:12:41] Speaker 03: So for that reason we would ask the court to reverse the claim construction and vacate the summary judgment decision and Vacate the decision excluding the expert report. [00:12:51] Speaker 03: Thank you. [00:12:52] Speaker 02: Thank you Mr. Miller. [00:12:59] Speaker 05: Councillor Chadwick. [00:13:00] Speaker 05: Thank you your honor may it please the court the district court got the claim construction right here. [00:13:04] Speaker 05: There's no basis to justify reversal or vacating [00:13:09] Speaker 05: the judgment, and this court should affirm. [00:13:11] Speaker 05: I want to address the issue right out of the chute about the notion that the district court rejected Little Giant's claim construction. [00:13:21] Speaker 05: The record shows just the opposite. [00:13:23] Speaker 05: And the court put together a chart at pages 73 to 74 of the appendix, which is the claim construction order. [00:13:31] Speaker 05: And Judge Menendez put the larger phrase that the claim limitation was in, and then Little Giant's construction right next to it. [00:13:39] Speaker 05: And she noted, and you can tell just by having a look at it, that a number of the words in the larger phrase were just repeated. [00:13:46] Speaker 05: Now, in reply, Little Giant says, hey, we asked to have the entire phrase construed, not just cavity, not disposed within. [00:13:56] Speaker 05: They didn't appeal that. [00:13:58] Speaker 05: here before this court, so it's waived. [00:14:01] Speaker 05: But it really doesn't matter anyway if you look at it on the merits. [00:14:05] Speaker 05: We look at what the district court did and what Little Giant asked for. [00:14:10] Speaker 05: If we unpack the chart and you look at the words from the claim limitation that were repeated, they do a nice job of separating substantial amount disposed within and cavity. [00:14:22] Speaker 05: So it's easy to discern what Little Giant was asking for each of those instructions. [00:14:28] Speaker 05: And then on the very next page of the appendix, the district court laid out exactly what those constructions were. [00:14:35] Speaker 05: And for cavity, the district court said Little Giant would interpret cavity to mean hollowed out space not passing all the way through. [00:14:46] Speaker 05: If you look at page 270 of the appendix, which is the first claim construction brief from Little Giant, that is exactly what they asked for in bold. [00:14:58] Speaker 05: Now, they might have arguments elsewhere about enough directions. [00:15:02] Speaker 05: They had a lot of arguments. [00:15:03] Speaker 05: But that was the construction they asked for. [00:15:05] Speaker 05: And if you look at the claim construction brief, they always bolded what they wanted the claim construction to be. [00:15:12] Speaker 05: So for them to argue now that the district court didn't give them exactly what they wanted, it's just not supported by the record. [00:15:20] Speaker 05: And prior to the claim construction order, they never backed away from, as you said Judge Chen, this notion of not passing all the way through. [00:15:29] Speaker 05: They asked for that. [00:15:32] Speaker 05: The district court didn't reject their construction, it adopted it. [00:15:36] Speaker 05: And because of that, Little Giant is stopped on appeal from arguing otherwise. [00:15:41] Speaker 05: That comes right out of the key pharmaceuticals and nuance cases from this court. [00:15:47] Speaker 05: So what's Little Giant left with? [00:15:49] Speaker 05: They really only have one argument. [00:15:50] Speaker 05: And what they say is, well, there's some language in the district court's order that says Little Giant was trying to get a second or third bite at the claim construction of Apple because of unsuccessful efforts. [00:16:03] Speaker 05: And they say, see, there's the evidence we didn't get our construction. [00:16:07] Speaker 05: That's at page 40 of the appendix, by the way. [00:16:10] Speaker 05: If you go back just a couple pages, pages 35 to 36, the district court actually [00:16:16] Speaker 05: explains what she was saying. [00:16:19] Speaker 05: And what she says is that the construction that was adopted was the construction, quote, previously advocated by Little Giant. [00:16:28] Speaker 05: And then she says, what is happening now [00:16:32] Speaker 05: is that Little Giant finds that construction less than supportive of its infringement position. [00:16:38] Speaker 05: So for whatever reason, they asked for the construction. [00:16:40] Speaker 05: They got it. [00:16:40] Speaker 05: It turned out they didn't like it. [00:16:42] Speaker 05: And they came back to the court and said, you didn't give us what we wanted. [00:16:45] Speaker 05: But that's just not the case. [00:16:49] Speaker 05: There's no basis to conclude construction of cavity by Little Giant was rejected by the court. [00:16:54] Speaker 05: They got what they asked for. [00:16:56] Speaker 05: They're stopped from arguing a new claim construction. [00:16:59] Speaker 05: And this court should affirm that. [00:17:01] Speaker 05: the court's claim construction. [00:17:02] Speaker 04: What if we conclude that all along they did argue over the meaning of the construction that they asked for. [00:17:11] Speaker 04: And so therefore, it's still appropriate for them to pursue that argument here on appeal. [00:17:19] Speaker 04: What is the correct meaning of not passing all the way through? [00:17:22] Speaker 04: Well, I've seen some. [00:17:24] Speaker 04: Then we have to answer that question. [00:17:27] Speaker 05: Well, I guess what I would say is I'm not sure that they always argued that that was their understanding of it. [00:17:33] Speaker 05: They made arguments, and then they said, we want this. [00:17:37] Speaker 05: And they got this. [00:17:38] Speaker 05: And I think if you then look at the court's application of the claim construction and summary judgment, [00:17:47] Speaker 04: The point of my question was to invite you to start talking about why is it that the district court's rejection of their understanding of not passing all the way through is correct. [00:17:59] Speaker 05: Oh, I'm sorry, Your Honor. [00:18:01] Speaker 05: Well, first of all, I don't understand their construction to begin with. [00:18:08] Speaker 05: not passing through in enough directions. [00:18:11] Speaker 05: I don't know what a jury does with that when they get it. [00:18:13] Speaker 05: It doesn't elucidate what the term means. [00:18:16] Speaker 05: And if we look at figure 13a, to me it's binary. [00:18:21] Speaker 05: It either passes through or it doesn't. [00:18:23] Speaker 05: And the court said as much in the claim construction order when she brought up this notion of tunnels and openings. [00:18:31] Speaker 05: And she said, if it passes through, it's not a cavity. [00:18:36] Speaker 05: Now, one might ask, where did this language come from? [00:18:39] Speaker 05: An opening and tunnel. [00:18:41] Speaker 05: We didn't argue that. [00:18:42] Speaker 05: But if you look at the very limitation that we're talking about here, the notion of an opening is right in that claim limitation. [00:18:51] Speaker 05: the lock mechanism and a pin that goes through the rails to secure the rails together. [00:18:56] Speaker 05: And that's called an opening. [00:18:58] Speaker 05: And it passes all the way through, and a pin goes through it. [00:19:02] Speaker 05: There has to be something different than a cavity. [00:19:06] Speaker 05: And a cavity, as Judge Freeman, you noted, with regard to figure 13, [00:19:12] Speaker 05: That is the context of the claim. [00:19:15] Speaker 05: It says when it's in the first position or the locked position, then we look at it. [00:19:20] Speaker 05: And there is encapsulation on all three sides. [00:19:25] Speaker 05: That's not reading something into the claim limitation. [00:19:27] Speaker 05: That's just the context of what the specification discloses. [00:19:33] Speaker 05: And Judge Chen, I believe it was you who asked Mr. Miller. [00:19:38] Speaker 05: The commentary of the examiner during prosecution, he said, [00:19:42] Speaker 05: The construction is based on the disclosure of the specification and the figures in the patent. [00:19:51] Speaker 05: Figure 13 is the patent and it does show a cavity that doesn't pass all the way through. [00:19:57] Speaker 05: If you come up from underneath the handle, you'll hit the top of the handle. [00:20:02] Speaker 05: It doesn't pass all the way through. [00:20:05] Speaker 05: And then this notion about, and we brought this up in our brief, although Little Giant didn't really address it much, they keep trying to conflate the issues between disposed within and cavity. [00:20:22] Speaker 05: And every time they talk about hiding or concealing or concealing enough of, that's disposed within. [00:20:30] Speaker 05: That was the construction that they offered the court [00:20:33] Speaker 05: And they kept trying to backdoor it into cavity, but it really doesn't have any place in the construction of cavity at all. [00:20:41] Speaker 01: But Mr. Miller points out that in claim one, the language actually could be read to understand that it is within a cavity defined by the first component. [00:20:54] Speaker 01: And he argues it's defined by the handle, not defined by the handle in relationship to the rail. [00:21:01] Speaker 01: So I'd like to hear your response to that argument. [00:21:03] Speaker 05: Right. [00:21:04] Speaker 05: And I agree that's what the claim language says. [00:21:06] Speaker 05: And when you come up, as I said a moment ago, if you come up, [00:21:10] Speaker 05: from beneath the handle. [00:21:13] Speaker 05: And I think the district court said this in her summary judgment order, that you will hit the underside of the handle. [00:21:23] Speaker 05: So in fact, the handle itself does define a hollowed out space that doesn't pass through. [00:21:30] Speaker 05: And the only way that Little Giant can articulate otherwise [00:21:36] Speaker 05: is to start drawing imaginary lines in a floating handle that has nothing to do with the specification file history. [00:21:43] Speaker 05: They never made arguments like this during prosecution. [00:21:46] Speaker 05: This is something they came up with after the fact. [00:21:50] Speaker 02: Was there any disclaimer or lexicography issues? [00:21:54] Speaker 05: No, Your Honor, and we didn't argue that. [00:21:55] Speaker 05: What we argued was they asked for this at the district court. [00:22:00] Speaker 05: So this isn't a lexicography or disclaimer case. [00:22:03] Speaker 04: In a way, it is, because everyone is embracing what the examiner said in the notice of allowance. [00:22:11] Speaker 04: And so in that way, it comes from the prosecution history, this not passing all the way through. [00:22:17] Speaker 04: It doesn't come from the claim language itself, per se, nor is anyone pointing to something in the specification, per se. [00:22:24] Speaker 04: It's something that comes from the prosecution. [00:22:27] Speaker 04: It's a prosecution history statement. [00:22:30] Speaker 05: I agree with you in this. [00:22:31] Speaker 04: And it starts to sound like disclaimer. [00:22:33] Speaker 04: Well, I agree with you in this regard, Judge. [00:22:35] Speaker 04: Or at least to put it differently, an agreed upon by the parties disclaimer. [00:22:42] Speaker 05: Fair enough. [00:22:42] Speaker 05: I don't know what that means from a legal context. [00:22:44] Speaker 05: But typically in a lexicography or disclaimer case, [00:22:51] Speaker 05: the focus is on what did the applicant say during prosecution, not what did the examiner say. [00:22:57] Speaker 05: And in fact, this court has scads of cases where they say you cannot use what the PTO said against the examiner. [00:23:04] Speaker 05: And even if the examiner is silent, that's not acquiescence to what the examiner said. [00:23:09] Speaker 05: So I disagree with you that it is a disclaimer case at all. [00:23:14] Speaker 05: I think they affirmed [00:23:17] Speaker 05: in the district court litigation, the construction they wanted. [00:23:21] Speaker 05: If they didn't want to have the parenthetical of the construction, they shouldn't have asked for it. [00:23:27] Speaker 05: They did. [00:23:27] Speaker 05: Turns out they didn't like what they got out of it. [00:23:31] Speaker 05: And here we are, and they're arguing something different. [00:23:35] Speaker 05: I have nothing else unless you have more questions. [00:23:38] Speaker 05: Thank you. [00:23:38] Speaker 05: Thank you. [00:23:46] Speaker 03: A few points. [00:23:48] Speaker 03: First of all, when it comes to whether we consistently argued this directional context, we did. [00:23:55] Speaker 03: I read in our opening claim construction brief this last time. [00:23:58] Speaker 03: We made the exact same arguments in our reply claim construction brief, appendix 1417 to 1419. [00:24:04] Speaker 03: About in enough directions and then at the markman hearing I argued to the district court I said it's clear the focus is cavity But if all you do is say not passing all the way through and nothing else the way the examiner said such that it can hide or cover I said it will be unclear and we will be arguing the same thing on summary judgment [00:24:26] Speaker 03: And then I explained, what you have to say is it doesn't pass all the way through in enough directions that it can hide or cover a majority of the brackets. [00:24:33] Speaker 03: So that was a consistent argument we made. [00:24:36] Speaker 03: Now when it comes to whether the rail is properly considered on the not passing all the way through, it's important to consider the history of the amendments around the Grebinowski reference. [00:24:49] Speaker 03: Because the First Amendment, the claim language says that the [00:24:54] Speaker 03: a substantial portion of the bracket is concealed between the handle and the rail. [00:25:00] Speaker 03: And at that time those claims actually cited the rail as part of the definition of the space for the bracket. [00:25:07] Speaker 03: But then the claim was changed to say that the bracket is disposed within a cavity defined by the first component. [00:25:17] Speaker 03: So only the first component defines the cavity, not the rail. [00:25:21] Speaker 04: This one fundamental problem I have with [00:25:24] Speaker 04: argument is we're trying to figure out what the examiner meant when the examiner said not passing all the way through and then he refers to the figures of the application. [00:25:36] Speaker 04: And your argument for not passing all the way through seems to encompass situations where there can be passing all the way through, which is diametrically opposite of the plain language of the phrase. [00:25:49] Speaker 04: And so it strikes me as a hard lift. [00:25:53] Speaker 03: I don't believe that's true. [00:25:55] Speaker 03: My friend here just said, if you carve up into that handle upwards, you'll get to the point, and then you stop, and you don't go all the way through. [00:26:04] Speaker 03: That doesn't mean that what you carved, for example a taco, goes all the way through laterally, but the direction you were carving doesn't go all the way through. [00:26:13] Speaker 03: So the concept of not going all the way through is not inherent in what the examiner said. [00:26:19] Speaker 03: That's why the caveat of the examiner's language [00:26:22] Speaker 03: can't be ignored the way the district court disregarded it. [00:26:26] Speaker 03: You have to just say it doesn't go all the way through such that, the examiner said, such that it can perform this function of receiving most of the bracket inside of it. [00:26:37] Speaker 03: That's what it means. [00:26:40] Speaker 02: What would you say about the disclosure and the specification regarding Magnet 226? [00:26:48] Speaker 02: This is Figure 20. [00:26:53] Speaker 03: figure 20 yes well figure 20 is talking about let me let me make let me remind myself what figure 20 looks like oh figure 20 is talking about the uh the hinge lock that is not the lock for the rig is this not a cavity that goes all the way through [00:27:14] Speaker 03: Yes, but that is not the lock that this claim limitation is talking about. [00:27:20] Speaker 03: This claim limitation is talking about a lock that is disposed on the rails to keep the rails from sliding. [00:27:27] Speaker 03: This figure 20 is talking about the hinge at the top of the ladder and it has a lock there for rotating the rails one way or the other. [00:27:38] Speaker 03: So that's not an embodiment of this [00:27:42] Speaker 03: of what the examiner was pointing to when it talked about the first rotational position and the cavity in the Notice of Allowance. [00:27:50] Speaker 03: So on that basis, the court should reverse claim construction and include the full context of the examiner's statement and the full context of the actual figures and what the handle defines as cavity and remand. [00:28:05] Speaker 03: Thank you. [00:28:06] Speaker 02: We thank the party for the arguments. [00:28:08] Speaker 02: That concludes today's arguments. [00:28:10] Speaker 02: This court rises in recess.