[00:00:00] Speaker 04: Our last case this morning is Magnolia Medical Technologies versus Corrin, Inc. [00:00:07] Speaker 04: 2024-2001. [00:00:11] Speaker 01: Mr. Perry. [00:00:13] Speaker 01: Thank you, Judge Laurie, and may it please the court. [00:00:16] Speaker 01: Having sat here all morning, I bring to you a de novo review of a pure legal issue. [00:00:21] Speaker 01: It is error under many of this court's precedents to issue a claim construction after the jury has returned a verdict. [00:00:29] Speaker 01: That is what Judge Connolly did here. [00:00:31] Speaker 01: That is reversible error. [00:00:32] Speaker 03: Why did you ask for a claim construction in these terms beforehand? [00:00:37] Speaker 03: I understand there's lots of terms. [00:00:40] Speaker 03: District court judges don't want to construe a lot of claims. [00:00:42] Speaker 03: I sympathize with them on that. [00:00:44] Speaker 03: But for claims like this that seem to be at least part of the point of novelty, and to go with claim an ordinary meaning and then determine after the fact that the parties don't actually agree on [00:00:57] Speaker 03: the meaning of these terms as used in the claims is very frustrating to us at the appeals court. [00:01:03] Speaker 01: Your Honor, two answers. [00:01:04] Speaker 01: One is I do understand the frustration. [00:01:06] Speaker 01: Second is Curran asked for a claim construction of these claims very early and then dropped that construction in the narrowing process, as happens in these cases, so that that was the choice and the parties didn't have a dispute. [00:01:16] Speaker 01: But more importantly and more substantively, I don't think there is a dispute on the meaning of these claims. [00:01:21] Speaker 03: I think there's a dispute. [00:01:22] Speaker 03: No, no, no. [00:01:23] Speaker 03: There may not be. [00:01:24] Speaker 03: Wait, let me remind you. [00:01:26] Speaker 03: have three cases I've already lost my train of thought. [00:01:28] Speaker 03: We're talking about the vent and the seal. [00:01:31] Speaker 03: There may not be a dispute about those terms isolated what a vent means and what a seal means. [00:01:38] Speaker 03: But in the context of the claim itself and how they operate and whether it can be one structure or two structures, there's a dispute. [00:01:48] Speaker 03: And it seems to me that should have been resolved at claim construction because if it has to be two, [00:01:54] Speaker 03: then they don't infringe. [00:01:56] Speaker 03: If it can be one, then possibly they infringe. [00:02:00] Speaker 03: What are we to do with that when there's no claim construction in advance? [00:02:03] Speaker 03: And the jury doesn't know that either. [00:02:05] Speaker 01: So my client, Magnolia, the patent holder, we came forward with our infringement expert report before trial and set forward the theory of infringement on which this case was tried to a jury, which was the porous plug is a single structure that is both a vent and a seal. [00:02:21] Speaker 01: Vent noun and seal noun. [00:02:22] Speaker 01: I think it's important to remember this because this is the real debate in this court, right? [00:02:25] Speaker 01: Not vent verb and seal verb. [00:02:27] Speaker 01: The porous plug is a vent noun and a seal noun. [00:02:30] Speaker 01: That was our theory of infringement as announced in the expert report before trial. [00:02:34] Speaker 01: They took his deposition. [00:02:35] Speaker 01: They knew exactly. [00:02:36] Speaker 01: We had infringement contentions. [00:02:37] Speaker 01: It's a Delaware case. [00:02:38] Speaker 01: They knew exactly what the theory was. [00:02:40] Speaker 01: And Curran didn't make a Bechtin motion that there had to be two structures. [00:02:44] Speaker 01: They didn't move to Daubert him on that ground. [00:02:46] Speaker 01: They didn't move to strike his testimony on the ground. [00:02:48] Speaker 01: They didn't object to his testimony on that ground. [00:02:50] Speaker 01: So it was our position that it was a single structure that has both functions, and that there's nothing in the claim or limitation. [00:02:57] Speaker 03: But you didn't ask for a claim construction. [00:02:58] Speaker 01: Well, we didn't need a claim construction. [00:03:02] Speaker 03: I understand. [00:03:02] Speaker 03: Well, I don't, because I don't try patent cases. [00:03:05] Speaker 03: Thank god. [00:03:07] Speaker 03: I do try other cases, but not patent cases. [00:03:15] Speaker 03: You think you don't need it, but now you're here because there wasn't clarity on whether this had to be a unitary structure or it had to be two structures. [00:03:25] Speaker 03: I fundamentally disagree with that judgment. [00:03:26] Speaker 04: Counsel, we can read the claims ourselves. [00:03:29] Speaker 04: And this, claim one of the 483 pattern doesn't talk about a ceiling function and a vent function, where they might both be satisfied by one item. [00:03:43] Speaker 04: Here it says a seal member, an A vent. [00:03:47] Speaker 04: seem pretty clear that they're two separate items. [00:03:50] Speaker 01: Your Honor, that was the argument that Curran made for the first time in its post-verdict JMOL. [00:03:58] Speaker 01: It cited the Becton case and said, those are two functions that have to be done by, or two structures that have to be separate structures under Becton. [00:04:06] Speaker 00: But didn't they argue to the jury that there has to be a vent and a seal separately? [00:04:10] Speaker 01: They argued to the jury, Your Honor, that they had to function separately. [00:04:13] Speaker 01: This is why I stress the difference between a noun and a verb. [00:04:16] Speaker 01: The claim, it's a device claim. [00:04:17] Speaker 01: It's an apparatus claim, as my friends point out. [00:04:20] Speaker 01: If it has a vent, a vent that is not venting is still a vent. [00:04:24] Speaker 01: A seal that is not sealing is still a seal. [00:04:25] Speaker 00: An open seal that is not a seal, because it's leaking like crazy, isn't it? [00:04:29] Speaker 01: Well, I drove into my old minivan this morning, and the air was blowing on me. [00:04:32] Speaker 01: So I closed the vent. [00:04:33] Speaker 01: A closed vent is still a vent. [00:04:35] Speaker 01: Just as an open seal is still a seal. [00:04:39] Speaker 01: And to go to both of your points, Judge Hughes and Judge Laurie, [00:04:45] Speaker 01: Friends on the other side have been very well represented in this entire case. [00:04:48] Speaker 01: This Bechton argument, every patent lawyer knows that if you've got separately described functions or structures, you may have a Bechton argument. [00:04:56] Speaker 01: It was never raised. [00:04:58] Speaker 01: It wasn't raised at claim construction. [00:05:00] Speaker 01: It wasn't raised in a Daubert. [00:05:01] Speaker 01: It wasn't raised in pretrial. [00:05:02] Speaker 01: They didn't seek a jury instruction on it. [00:05:05] Speaker 01: They tried the case on the factual question. [00:05:07] Speaker 01: They made the argument through their expert in a closing argument. [00:05:09] Speaker 00: But we're just reading the claim, and it says a vent and a seal. [00:05:12] Speaker 00: You want us to read out? [00:05:14] Speaker 00: the word and. [00:05:15] Speaker 00: You want there to be no moment in time when there's infringement. [00:05:19] Speaker 01: Your Honor, there is a moment in time. [00:05:20] Speaker 01: There is a vent and a seal. [00:05:22] Speaker 01: The porous plug is both a vent and a seal. [00:05:24] Speaker 01: It vents and seals as a verb at different times. [00:05:27] Speaker 04: It cannot be a vent and a seal at the same time. [00:05:31] Speaker 01: Your Honor, it is a vent and a seal at the same time. [00:05:34] Speaker 01: It may not. [00:05:36] Speaker 03: Your view is it's a vent and seal, but it functions as a vent at one point in time, and it's a seal at another point in time. [00:05:43] Speaker 03: And because this is a device claim, not a method claim, the fact that the function is in series doesn't change the fact that the structure is existent in the device. [00:05:59] Speaker 01: This, Your Honor, is a single structure that has a vent and a seal. [00:06:04] Speaker 01: It vents. [00:06:06] Speaker 01: I close the valve. [00:06:08] Speaker 01: It seals. [00:06:09] Speaker 01: Every valve is a vent and a seal. [00:06:11] Speaker 01: It's a single structure that, as the noun, as the structure requires, is a vent and a seal. [00:06:16] Speaker 03: But you would agree, I think, if the district court did claim construction. [00:06:22] Speaker 03: You would disagree with the claims construction. [00:06:24] Speaker 03: But if the proper claim construction were that the vent and seal were separate structures, then you would have a problem. [00:06:31] Speaker 03: Yes. [00:06:32] Speaker 03: But we didn't get that. [00:06:33] Speaker 03: Well, we got that after the verdict. [00:06:36] Speaker 03: Yes, yes. [00:06:37] Speaker 01: Now, we disagree with it as a matter of claim construction. [00:06:39] Speaker 01: To be clear, Judge Lurie, you raised claim one. [00:06:41] Speaker 01: Claim 24 specifically says that the seal has to be configured to transition from a first state to a second state. [00:06:48] Speaker 01: And the specification, in fact, says [00:06:50] Speaker 01: that the steps can be done either concurrently or sequentially. [00:06:53] Speaker 01: So we have record, intrinsic record evidence that this is a, it's a machine. [00:06:58] Speaker 01: It moves, it changes, right? [00:06:59] Speaker 01: As the blood flows through it, it changes state. [00:07:02] Speaker 01: So this is the structure and function. [00:07:04] Speaker 03: You might correct that the embodiment in your patent, though, shows the vent and the seal as separate structures. [00:07:11] Speaker 01: The one of the preferred embodiments illustrated, yes. [00:07:15] Speaker 01: But of course, we don't compare the claim to the preferred embodiment or to our device. [00:07:18] Speaker 01: I understand. [00:07:18] Speaker 03: Are there any embodiments that show that it's the same structure? [00:07:21] Speaker 01: There are not, Your Honor. [00:07:22] Speaker 01: But there are all the usual disclaimers. [00:07:26] Speaker 01: And these claims are written much more broadly than those embodied. [00:07:30] Speaker 01: And I need to come back to this. [00:07:34] Speaker 01: This was an argument. [00:07:35] Speaker 01: It is a claim construction argument. [00:07:37] Speaker 01: Two structures are one. [00:07:38] Speaker 01: There's 100 Bechtin cases from this court. [00:07:41] Speaker 01: This is an argument that was raised for the first time after the verdict. [00:07:44] Speaker 03: This is what I'm struggling with, which is it clearly is a claim construction argument. [00:07:49] Speaker 03: I think it should have been resolved so that the jury could have been told what happens when it's not [00:07:59] Speaker 03: There is no claim construction. [00:08:00] Speaker 03: And so it just goes to the jury and they get a determinant. [00:08:05] Speaker 03: Are you arguing some kind of forfeiture on their behalf? [00:08:08] Speaker 01: That's exactly right, Your Honor. [00:08:09] Speaker 01: This court's cases in the Culep Packard versus Mustak case, Weiland versus Apple. [00:08:14] Speaker 01: There's a whole bunch of them where if the case goes forward, there's no objection to the instructions, because the instructions said, apply claim in ordinary meaning if I haven't construed it, and the jury returns a verdict [00:08:24] Speaker 01: The judge cannot then construe the claims differently. [00:08:27] Speaker 01: It's too late once the jury is charged. [00:08:30] Speaker 03: And so your view is that because there was no specific claim construction, the jury was free to find that the vent and the seal could be in the same structure? [00:08:40] Speaker 01: Correct. [00:08:40] Speaker 01: And in fact, Your Honor, and this goes, Judge Freeman, to your question earlier, the jury was instructed to apply the plane of an ordinary meaning within the context of the patent as applied by a person of ordinary skill in the art. [00:08:53] Speaker 01: That's the jury instruction. [00:08:54] Speaker 01: And we had Dr. Antonson and Dr. Santiago testifying as to how a person of skill in the art would understand it. [00:09:00] Speaker 01: They disagreed. [00:09:00] Speaker 01: That's a battle of the experts. [00:09:01] Speaker 01: And the jury obviously decided with Dr. Santiago. [00:09:04] Speaker 03: So I want to add one more complication, and that is, [00:09:08] Speaker 03: I understand that we have a presumption in claim construction law that when things are set out separately in a device claim, that they're separate structures. [00:09:17] Speaker 03: How does that come into play with the jury? [00:09:21] Speaker 03: Are we supposed to presume that a jury would know that? [00:09:25] Speaker 03: Because of course, that would be, it maybe as a matter of law, we would. [00:09:29] Speaker 03: I can't imagine that the jury wouldn't know that presumption. [00:09:34] Speaker 03: It really, because that's some of the case law they're citing on claim construction. [00:09:40] Speaker 03: But of course, no claim construction was done until after it's passed. [00:09:43] Speaker 01: That's correct. [00:09:44] Speaker 01: No. [00:09:44] Speaker 01: The jury is going to listen to the experts as to whether there's infringement. [00:09:47] Speaker 01: That's the factual question from the jury. [00:09:49] Speaker 01: The legal question of claim construction, if a judge hasn't construed the claim, as this court's made clear, it's any reasonable construction supported by the evidence. [00:09:56] Speaker 01: And we have two experts here testifying different ways on this. [00:09:59] Speaker 01: That happens. [00:10:00] Speaker 03: So your view, I'm sorry to keep interrupting, but I'm going to is that [00:10:05] Speaker 03: that a single structure or a dual structure is reasonable claim construction on this point because there was none. [00:10:14] Speaker 03: If we found that it was just simply looking at that there's no way a reasonable juror could have said this can be in a single structure, then you'd have a problem. [00:10:23] Speaker 03: Your view is the expert's testified, your expert testified, [00:10:27] Speaker 03: that it's reasonable to think that this device is a seal and a vent. [00:10:34] Speaker 01: Correct, Your Honor. [00:10:35] Speaker 01: And that structurally, anyway, there are many structures. [00:10:39] Speaker 03: And that we can't back it out and say, that's not reasonable because this claim [00:10:44] Speaker 03: clearly says these have to be independent structures. [00:10:48] Speaker 01: It is not so clear. [00:10:49] Speaker 01: I mean, Beckton, for example, where it is physically, literally impossible to have a structure that did both of the things, the swing arm and the hinge thing, this is not physically impossible. [00:10:58] Speaker 01: Every valve is a single structure that is both a vent and a seal. [00:11:02] Speaker 01: And there's a category of structures that does that. [00:11:04] Speaker 01: They're called valves. [00:11:05] Speaker 01: And in fact, I asked one of my associates to type into ChatGPT, give me an example of a single structure that is both a vent and a seal. [00:11:14] Speaker 01: The number three answer is hydrophilic porous plug, which is what we have here, which is a structure that is known in the art of fluid mechanics. [00:11:22] Speaker 01: That is, a vent until it's a seal when it is contact with liquid. [00:11:26] Speaker 01: And valves can operate mechanically, electrically, by pressure, by fluid. [00:11:30] Speaker 04: That is not evidence in the record. [00:11:32] Speaker 01: Your Honor, it's the common sense of it. [00:11:34] Speaker 01: My friends over here say, ignore the testimony of open seal. [00:11:38] Speaker 01: And I say, don't ignore the testimony of closed vent, right? [00:11:40] Speaker 01: We're talking in the real world. [00:11:42] Speaker 01: And we know structures. [00:11:43] Speaker 04: Counsel, let's move to 001 patterns. [00:11:47] Speaker 04: Yes, Your Honor. [00:11:48] Speaker 04: Is there any case law on whether diverter has been found to be a means or was found not to be a means? [00:11:56] Speaker 01: In this court, the structured diverter has never been construed one way or the other. [00:12:01] Speaker 01: The function of diversion has come up a handful of times, but not in any way relevant, as best my research tells us, to what we have here. [00:12:08] Speaker 04: Well, in the court found that figures six and seven, A and B, show diverters that Conan doesn't use. [00:12:19] Speaker 01: Correct. [00:12:19] Speaker 04: So that's the reason for the stipulation. [00:12:22] Speaker 01: There are examples of diverters in this specification. [00:12:25] Speaker 01: And the whole question, of course, in that half of the appeal is whether it's a means plus function claim. [00:12:30] Speaker 01: Because if it's not, then it doesn't pick up. [00:12:31] Speaker 01: It's not limited to the examples in the embodiment. [00:12:34] Speaker 04: Are there other examples of diverters in the specification? [00:12:38] Speaker 01: Not in the specification, but the extrinsic evidence. [00:12:40] Speaker 04: Well, that's what counts with means plus function. [00:12:44] Speaker 01: Well, yes, Your Honor, which is why we say it's not a means plus function term. [00:12:47] Speaker 01: It's a structural term that has structure recited in the claim itself. [00:12:50] Speaker 01: We have an inlet, two outlets, and the pressure equalization configuration requirement, which says that this is a fluidic diverter rather than a mechanical diverter. [00:13:00] Speaker 01: If I could reserve the balance of my time. [00:13:01] Speaker 04: We'll save three minutes for you. [00:13:04] Speaker 01: Thank you. [00:13:18] Speaker 02: Thank you, Judge Lurie. [00:13:18] Speaker 02: May it please the court, John O'Quinn on behalf of Karen. [00:13:22] Speaker 02: Judge Hughes, to the extent that this is viewed as being a claim construction issue, and I'll come back to how I think it's really more of a failure of proof issue, but to the extent that it is, I think this court's decision in Kyocera versus ITC controls the outcome here. [00:13:37] Speaker 02: And it controls the outcome in our favor. [00:13:39] Speaker 02: And the reason for that is because, as you alluded to a moment ago, in cases like Kyocera, Beckham Dickinson, and Google versus Echo Factor, [00:13:48] Speaker 02: There's, quote, a presumption that separately listed claim limitations include separate, distinct physical functions. [00:13:54] Speaker 03: That's a principle of claim construction. [00:13:55] Speaker 02: That's a principle of law. [00:13:56] Speaker 02: A claim construction specifically. [00:13:59] Speaker 02: I agree with that. [00:14:01] Speaker 03: Juries don't do claim construction. [00:14:04] Speaker 03: I agree with that as well. [00:14:05] Speaker 03: So you don't presume that the jury applies that presumption. [00:14:09] Speaker 02: And in Kiyosara, this court dealt with the issue where the claim construction was plain and ordinary meaning. [00:14:17] Speaker 02: And the argument on appeal was that there was a failure of proof. [00:14:22] Speaker 02: And the court said that's better viewed as a claim construction issue, that there was no party had identified claim language overcoming the presumption that two elements are distinct components. [00:14:32] Speaker 02: This is a classic case. [00:14:33] Speaker 02: This court said, just like in Weiland, that a court helped. [00:14:35] Speaker 03: I understand, but this case really troubles me, Mr. O'Quinn, because it was clear from the outset what their infringement contention was, what they were targeting as a vent or the seal. [00:14:47] Speaker 03: So even though they didn't raise it as a claim construction argument, and you didn't apparently raise it, they were necessarily saying the vent and the seal were one, [00:15:01] Speaker 03: structure and to be clear this isn't any kind of unfair surprise on your behalf everybody knew what was being targeted and if this was a claim instruction problem then somebody needed to tell the district court that we have a disagreement about the claim and whether it could be one structure or two before it goes to trial and not do it after the fact because that's where this turned out if if i agree with them [00:15:25] Speaker 03: that the vent and the seal in this claim can overcome that presumption and be a single structure, then they win, don't they? [00:15:35] Speaker 02: Well, they don't. [00:15:36] Speaker 02: And I'll come to why they don't in just a second. [00:15:38] Speaker 02: But just to finish out the thought, first of all, Kyocera, again, was applying the presumption in the context of plain and ordinary meaning. [00:15:46] Speaker 02: The plain and ordinary meaning is that they are separate structures. [00:15:49] Speaker 02: That is what this court concluded in Kyocera. [00:15:52] Speaker 02: And then second, in terms of putting the district court on notice, [00:15:56] Speaker 02: Mid-trial, in the context of making the 50A motion, we specifically said, quote, there are some issues based on the vent and seal terminology, and raised this very issue. [00:16:06] Speaker 02: So this isn't an issue that they were sandbagged with after trial. [00:16:10] Speaker 02: This was raised during trial. [00:16:12] Speaker 02: The court didn't, at that point, view it as an O2 micro problem. [00:16:16] Speaker 02: And I don't think the district court ultimately viewed this as an O2 micro problem, because it just enforced the all elements rule, applying the plain and ordinary meaning [00:16:25] Speaker 02: and the plain and ordinary meaning mean that these are presumptively separate structures. [00:16:29] Speaker 02: They're the ones, if they wanted to do something other than the plain and ordinary meaning being separate structures, they're the ones who had the burden on this. [00:16:37] Speaker 03: Now, having said all of that, at the end of the day, I would get that if their arguments for infringement hadn't at least implicitly contradicted that presumption. [00:16:50] Speaker 02: Well, Judge Hughes, the issue is [00:16:54] Speaker 02: Their arguments for infringement aren't really based on structure and saying that this is the structure of a vent and the structure of the seal. [00:17:01] Speaker 02: Their arguments for infringement are based on capability of performing a function. [00:17:05] Speaker 02: And the problem is these claims, just like the claims in Ball Aerosol, are not drawn towards capability. [00:17:12] Speaker 02: And indeed, they don't recite something that's capable of venting or capable of sealing. [00:17:18] Speaker 02: A claim 24, it requires that you have, these are apparatus claims, it requires that you have the structure of a seal, and that you have the structure of an event, and it requires that you have them at the same time. [00:17:28] Speaker 02: And the way that, the reason that I say that is because at the same point in time, the first operating mode, the volume of blood has to be allowed to flow towards a seal, and at that exact same time, you have to have one. [00:17:41] Speaker 03: I understand your argument on this. [00:17:42] Speaker 03: This is claim construction. [00:17:45] Speaker 03: And you're asking me to do, [00:17:47] Speaker 03: to know about plane construction after a jury has found the opposite on an infringement. [00:17:52] Speaker 02: Well, respectfully, I'm not. [00:17:53] Speaker 02: I mean, when the word at the exact same time requires that blood flow towards the seal and that you have event be configured to allow air to exit, then those are separate words. [00:18:06] Speaker 02: They have separate meaning. [00:18:08] Speaker 02: They were given their plane and ordinary meaning. [00:18:11] Speaker 03: It suggests plane construction. [00:18:12] Speaker 02: Well, judges respectfully, they didn't try to prove to the jury that this is something that a person of ordinary skill in the art, this plug, would understand is a seal. [00:18:24] Speaker 02: Their entirety of their, or that it is event, the entirety of their proof, and I encourage you to look at appendix, excuse me, at appendix 25573. [00:18:35] Speaker 03: So your argument is they didn't prove that there's a seal at all, not that this structure can't be a bent and sealed because it's not a bent and sealed at the same time? [00:18:45] Speaker 02: Well, my point. [00:18:46] Speaker 03: That's not the way I understand it. [00:18:47] Speaker 02: My point, Judge Hughes, is that their proof was entirely based on function. [00:18:53] Speaker 02: And indeed, their whole argument on appeal, if you look at their opening brief at pages 23 and at 38, their argument is, well, you can have things that perform different functions. [00:19:03] Speaker 02: And that really goes to what a method claim would be. [00:19:06] Speaker 02: This is an apparatus claim. [00:19:07] Speaker 02: The apparatus claim has to have the feature of a seal. [00:19:11] Speaker 02: And it has to have the future of event. [00:19:13] Speaker 02: And whether or not it has to have it at the same time, the answer to that question for an apparatus claim is clearly yes, because under this court's decision in Lemelson, infringement can only occur for an apparatus claim under 271A if the claim combination has been assembled. [00:19:27] Speaker 02: And I think this court's decision in Viatech [00:19:30] Speaker 02: 733F of Federal Appendix 542, it's cited in the briefs, goes to exactly this. [00:19:35] Speaker 02: In Viatech, you had a file in the first configuration. [00:19:41] Speaker 02: That file would become the database in the second configuration. [00:19:46] Speaker 02: But you had no configuration that had both the file [00:19:49] Speaker 02: and the database, and this court affirmed the summary judgment of no infringement. [00:19:55] Speaker 02: There was no view that this was a claim construction issue. [00:19:57] Speaker 02: What you had there was a file that had to become a database. [00:20:01] Speaker 02: You could have said, well, it's both a file and a database, but that's based on the idea that it's going to become something in the future. [00:20:08] Speaker 02: It's not that yet. [00:20:09] Speaker 02: And that's true with respect to the seal. [00:20:12] Speaker 03: I know you disagree with this. [00:20:14] Speaker 03: What the proper claim structure of this is, [00:20:16] Speaker 03: that the vent and the seal can be a unitary structure. [00:20:21] Speaker 03: Doesn't the current plug infringe? [00:20:25] Speaker 02: No, I don't think that it does because I don't think there's any evidence that the plug by itself is a seal. [00:20:38] Speaker 02: In fact, it cannot be a seal. [00:20:39] Speaker 02: If you have the plug in isolation, it will never be a seal. [00:20:44] Speaker 02: It cannot. [00:20:44] Speaker 02: It's just a sponge [00:20:45] Speaker 02: that air or fluid can run through. [00:20:49] Speaker 02: The testimony is only when liquid is added. [00:20:52] Speaker 02: This is the testimony from their expert at Appendix. [00:20:56] Speaker 03: Wait, are you saying that when the liquid hits it and it closes that it's not a seal? [00:21:02] Speaker 02: No, no. [00:21:02] Speaker 03: What I'm saying is that at that point, it's kind of acting like... I understand you're... What I'm not buying is the notion that it has to be a vent and a seal at the same time. [00:21:13] Speaker 03: That kind of function, to me, is not relevant to the claim construction. [00:21:18] Speaker 03: What's relevant to me is, can a unitary structure be a vent and a seal, even if it's a vent and seal at different times? [00:21:26] Speaker 02: So depending on how the claim is written, if a claim was written to capability, if a claim was written to functionality, it could be. [00:21:34] Speaker 03: I understand. [00:21:35] Speaker 03: I'm not being very clear. [00:21:37] Speaker 03: My view is, hypothetically, if that's what the claim [00:21:40] Speaker 03: proper claim construction is, is that it doesn't have to be a vent and a seal at the same time. [00:21:48] Speaker 03: That one unitary structure can be both a vent and a seal, even if it's a vent for part of the time, and a seal later. [00:21:56] Speaker 03: Is your view there's no evidence in the jury verdict, or given to the jury to support that? [00:22:03] Speaker 02: I think on these facts, and there's no evidence to support, that the plug itself [00:22:10] Speaker 02: it becomes by itself a seal. [00:22:14] Speaker 02: And what I'm trying to get at, if you look at appendix 25574, their expert testifies it becomes a seal. [00:22:22] Speaker 02: And the way it becomes a seal is a physical transformation. [00:22:25] Speaker 02: By itself, the plug will never be a seal. [00:22:28] Speaker 02: When liquid is added, it acts like a modern super absorbent diaper. [00:22:31] Speaker 03: But the plug itself, once the liquid hits it, is a seal. [00:22:35] Speaker 02: The plug and the liquid combined form the seal. [00:22:38] Speaker 02: The plug and the liquid combined form the seal. [00:22:41] Speaker 02: The seal by itself. [00:22:43] Speaker 02: So when you have the device sitting on a shelf, that plug is not capable of ever sealing anything. [00:22:52] Speaker 02: It's not even capable of becoming a seal. [00:22:54] Speaker 02: What makes it capable, as their own expert testified, [00:22:57] Speaker 02: It goes to the the moisture of the blood. [00:23:00] Speaker 02: This is appendix 25 534 and appendix 25 535 [00:23:05] Speaker 02: And again, at appendix 25841, our expert talks about this. [00:23:10] Speaker 02: It's basically got the material of a super absorbent diaper. [00:23:13] Speaker 03: I mean, I also don't buy this argument that the seal has this operated seal all by itself. [00:23:21] Speaker 03: In the patent, the seal doesn't spring into being somehow. [00:23:26] Speaker 03: It's through air pressure and stuff like that that causes it to seal off. [00:23:30] Speaker 03: Sure. [00:23:31] Speaker 03: Here, it's a liquid. [00:23:33] Speaker 03: And I think there may be some air pressure involved, but you know the facts of your device better than me. [00:23:37] Speaker 03: So it's not that the proper claim construction of the patent claim has to be that it's sealed without any kind of [00:23:46] Speaker 03: effects from other events. [00:23:48] Speaker 03: So the fact that it's the blood causing it to seal, does that mean to me that it's still not a seal once the blood hits it? [00:23:55] Speaker 02: Well, again, by itself, it's not the plug that does the sealing. [00:23:59] Speaker 02: It's the combination of the two. [00:24:01] Speaker 02: You now have something new. [00:24:02] Speaker 03: And it's the combination of the change in air pressure kicking the seal. [00:24:07] Speaker 02: But Judge Hughes, fundamentally here, this is, again, an apparatus claim. [00:24:11] Speaker 02: It's not a method claim. [00:24:14] Speaker 03: I understand where you're going. [00:24:16] Speaker 03: convincing me is that there needed to be claim construction. [00:24:20] Speaker 02: Well and I do think that to the extent that this this court ultimately concludes that the right way to view this is as a claim construction issue as opposed to a failure of proof issue. [00:24:29] Speaker 02: then the prudent thing for this court to do would be to remand in order for the district court to be able to assess, number one, whether or not this is within the scope of Weiland versus Appel, just an elaboration on the meaning inherent in the previous construction. [00:24:42] Speaker 04: Is it your view that when one reads the claim, [00:24:47] Speaker 04: and recites the seal member and the vent member that they necessarily, from reading the claim, must operate at a different time and that therefore they are separate. [00:25:04] Speaker 02: Yeah, my read of both claims is that the seal or the seal member, and those mean the same thing. [00:25:12] Speaker 02: There was no dispute about that. [00:25:15] Speaker 02: And the vent must exist at the same time. [00:25:18] Speaker 02: It has to be capable of sealing and venting at the same time. [00:25:22] Speaker 02: Again, the claims aren't drawn to capability. [00:25:24] Speaker 02: I'm just using that language, because all they proved was that at one point in time, it can vent, and another point in time, it can seal. [00:25:32] Speaker 03: That doesn't even sound like how the patent works. [00:25:34] Speaker 03: Well, hence for a while, and then when the air pressure changes at seals, they're not venting and sealing at the same time. [00:25:41] Speaker 02: Air pressure has nothing to do with the patent in the sense of the way that you look at the device. [00:25:49] Speaker 03: Well, there's something that causes the seal to kick in in the patent. [00:25:53] Speaker 03: It is not venting and sealing at the same time in the patent. [00:25:56] Speaker 02: So it actually is. [00:25:58] Speaker 02: If you look at the structure. [00:25:59] Speaker 03: That's not clear to me and you're not going to win that argument to me here because it seems to me that pattern reads the blood flows through. [00:26:08] Speaker 03: for a certain time and a certain time, a seal kicks in and then it goes a different way. [00:26:13] Speaker 03: At a very high level. [00:26:14] Speaker 03: I can't learn the facts of these cases in detail, but that's the way it operates. [00:26:19] Speaker 02: Let me explain. [00:26:19] Speaker 02: I would highly encourage you to look at the two videos as to how their device operates, because their device is what is described in the specification. [00:26:26] Speaker 02: I understand the claims are different. [00:26:28] Speaker 03: Well, I know their device requires some kind of manual manipulation by the tech. [00:26:32] Speaker 03: But it still tells them when to do it. [00:26:35] Speaker 03: And it's after there's been flow for a while. [00:26:37] Speaker 03: And then it stops. [00:26:38] Speaker 03: And then they have to move it over. [00:26:40] Speaker 03: And then it flows again. [00:26:42] Speaker 03: But a seal is kicking in not immediately. [00:26:45] Speaker 02: No, Judge Hughes, if you look at the device that's described in their specification, if you watch the video, this is clear. [00:26:51] Speaker 03: These are really getting into factual questions. [00:26:53] Speaker 02: And I'm just trying to respond to your question. [00:26:57] Speaker 02: Because the claim doesn't require that the seal seal the event. [00:27:01] Speaker 03: Every time you say the claim doesn't require something, you're just convincing me that this needs to go back for a claim construction. [00:27:07] Speaker 02: Well, my point was simply, if you look, for example, at claim six, they try to make a claim differentiation argument. [00:27:12] Speaker 02: In claim six, the seal. [00:27:15] Speaker 02: That's fine. [00:27:16] Speaker 00: I'm not buying that either. [00:27:18] Speaker 00: If we remand and there is a claims construction, [00:27:23] Speaker 00: Will this bring back to life your argument on the reservoir so that you're going to win no matter what? [00:27:30] Speaker 02: Candidly, Judge Freeman, I hadn't thought that all the way through. [00:27:34] Speaker 00: No one's argued here on the waiver argument on the reservoir element. [00:27:41] Speaker 00: And I think that Judge Connolly was well within his rights to call that waiver. [00:27:45] Speaker 00: But if this goes back, do you? [00:27:48] Speaker 00: We'll hear from Mr. Perry as to whether that waiver disappears, and you're right back into the game on that argument that you waived. [00:27:56] Speaker 02: Well, to be clear, Judge Freeman, if this goes back, there are a legion of arguments that the district court will have to grapple with. [00:28:02] Speaker 02: Because of the posture this case was in, there was only one issue that was resolved on JMAW. [00:28:08] Speaker 02: There were other JMAW issues. [00:28:09] Speaker 02: There are other new trial issues, none of which were even yet briefed, let alone decided. [00:28:15] Speaker 02: So it is certainly possible that it would put the reservoir issue back into play in terms of how it would ultimately play out. [00:28:22] Speaker 02: At the end of the day, though, I think what fundamentally is key here is that the claims require two structures. [00:28:29] Speaker 02: And you can read that just straight up from the plain language of claim 24. [00:28:35] Speaker 02: Excuse me, they require two features. [00:28:37] Speaker 02: And those features can't happen at the same time. [00:28:40] Speaker 02: Just inherently, it cannot seal an event at the same time. [00:28:44] Speaker 00: So you're telling us this is not claims construction because the only way to read the plain and ordinary meaning of that claim is that we need event. [00:28:53] Speaker 00: and ACL that are present when the device sits on the shelf. [00:28:56] Speaker 00: And no reasonable jury could look at this evidence and say that your device has that. [00:29:01] Speaker 02: That is absolutely my position with one modification, which is that when it's on the shelf, for sure, it's also when it's in the first operating mode. [00:29:09] Speaker 02: Because if you look at claim 24, it recites a first operating mode [00:29:14] Speaker 02: in which blood can flow to the seal and that you have event configured to allow error. [00:29:21] Speaker 02: And that's an impossibility in the accused device. [00:29:25] Speaker 02: And that is why this is ultimately about a failure of proof. [00:29:29] Speaker 02: It's about an impossibility as opposed to being a claim construction issue. [00:29:32] Speaker 02: But even if viewed as a claim construction issue, [00:29:34] Speaker 02: I think that because of the plain and ordinary meaning of this court's decision in Kyocera, we should prevail. [00:29:40] Speaker 02: I realize I'm well over my time. [00:29:41] Speaker 02: If the court has any further questions on this. [00:29:43] Speaker 03: I have just one question. [00:29:44] Speaker 03: If we agree with you on the diverter issue, but don't on this other issue, does that affect what we would do in any way? [00:29:53] Speaker 02: No, they're entirely separate. [00:29:54] Speaker 02: The diverter issue, the 001 patent didn't go to trial. [00:29:57] Speaker 02: So they really are entirely separate, Judge Hughes. [00:30:01] Speaker 02: OK. [00:30:02] Speaker 04: Thank you. [00:30:02] Speaker 02: Thank you, Judge Laurie. [00:30:04] Speaker 04: Thank you, Mr. O'Quinn. [00:30:06] Speaker 04: Mr. Perry will give you four minutes if you need it. [00:30:12] Speaker 01: Thank you, Judge Laurie. [00:30:14] Speaker 01: Four quick points, then, if I may. [00:30:16] Speaker 01: First, my friend Mr. O'Quinn fought like hell to make this not claim construction. [00:30:21] Speaker 01: Because if it is claim construction, then the verdict has to be reinstated under Wylan and Mustak. [00:30:28] Speaker 01: Second, I was shocked to hear the suggestion that there would be a remand for claim construction. [00:30:33] Speaker 01: It's not in their brief. [00:30:34] Speaker 01: It is forfeited and waived every which way but Sunday. [00:30:37] Speaker 01: Their whole appeal is that this was not claim construction. [00:30:41] Speaker 01: They can't now then get a remand for claim construction. [00:30:44] Speaker 01: And Judge Hughes, on whether the Bechtin presumption applies, we laid out in our blue brief at pages 39 to 44 why the Bechtin presumption has been overcome. [00:30:54] Speaker 01: They didn't respond at all, because they said this isn't claim construction. [00:30:58] Speaker 01: We came back in our yellow brief at page 15 and explained why the Bechtin presumption is overcome by the claims, by the specification. [00:31:05] Speaker 01: And of course, there's no briefing on it. [00:31:08] Speaker 01: I don't think the court can decide it or can remand it, but clearly they have forfeited this issue. [00:31:13] Speaker 00: Wouldn't it just be a new trial? [00:31:15] Speaker 00: You say the verdict has to be reinstated. [00:31:17] Speaker 00: But if it's not claims construction, if it is claims construction, then the verdict has to be reinstated. [00:31:26] Speaker 00: But we'd have to let Judge Connolly construe the claim, wouldn't we? [00:31:29] Speaker 01: No, Your Honor. [00:31:30] Speaker 01: Both Mustak and Weiland say that if the case goes to the jury on jury instructions that the [00:31:37] Speaker 01: other side does not object to it. [00:31:38] Speaker 01: And there were no objections to these obstructions. [00:31:41] Speaker 01: Appendix 44 is the instruction on what claims were construed and what were not. [00:31:45] Speaker 01: Then the jury returns a verdict. [00:31:47] Speaker 01: Any claim construction issue that is raised after that is gone. [00:31:51] Speaker 01: It's ineffectual. [00:31:52] Speaker 01: You can't change a verdict. [00:31:53] Speaker 01: In fact, we have a Seventh Amendment right now to that verdict because we have a finding of that. [00:31:56] Speaker 00: I'm only talking about a new trial. [00:31:58] Speaker 01: Well, but there's no ground for a new trial because the properly instructed jury returned a reasonable verdict that is totally supported by the evidence. [00:32:05] Speaker 03: My friend, Mr. O'Quinn, also said that there's no evidence in the... I guess you cited those two cases, but I'm somewhat unconvinced that we can't remand this for claim construction on this issue. [00:32:18] Speaker 03: Your Honor... At least it says that directly. [00:32:21] Speaker 01: Yes, Your Honor. [00:32:21] Speaker 01: Moustak says that. [00:32:22] Speaker 01: Weiland says that. [00:32:23] Speaker 01: I think we cited five cases. [00:32:24] Speaker 01: There's at least 20 that I know of, including unpublished cases. [00:32:29] Speaker 01: There is no case that I'm aware of where a case went to verdict on unobjected to instructions. [00:32:35] Speaker 01: And I emphasize that because sometimes this issue is preserved by objecting to the instruction, right? [00:32:38] Speaker 01: But if it goes to the jury on unobjected to instructions, it's too late. [00:32:43] Speaker 01: There's no case that I'm aware of from this court that has ever reversed, vacated, remanded. [00:32:47] Speaker 03: So I take it your argument is that if we find that this isn't a claim construction argument, then as they suggest, then [00:32:57] Speaker 03: We have to presume that your view of what this claim is was fair game for the jury, that it could be one structure, and that there's substantial evidence to support that. [00:33:07] Speaker 01: Correct, Your Honor. [00:33:08] Speaker 01: And let me answer that substantial evidence point, because Mr. Quinn said there's no evidence that the porous plug is a seal before it's wedded. [00:33:14] Speaker 01: He said that just now. [00:33:16] Speaker 03: You don't have to address that too much. [00:33:18] Speaker 03: Well, but I'd like to address it here. [00:33:20] Speaker 03: I don't buy that. [00:33:21] Speaker 01: Curran's own instructional video, which was played to the jury in the record at appendix 25516, says that [00:33:30] Speaker 01: The blood flows into the channel until it reaches the white porous seal. [00:33:35] Speaker 01: They call the plug a seal before it is wetted. [00:33:38] Speaker 01: And they recognize that event. [00:33:40] Speaker 01: So that's Curran's own materials. [00:33:41] Speaker 01: And you look at it, it's called a self-sealing plug in their FDA submission. [00:33:45] Speaker 01: So there's no doubt that there is substantial evidence, Your Honor. [00:33:48] Speaker 01: This case was tried. [00:33:50] Speaker 01: This case was tried to adjourn. [00:33:52] Speaker 03: You can tell I'm really struggling with this case. [00:33:55] Speaker 03: You both can. [00:33:57] Speaker 03: I'm just trying to figure out. [00:33:58] Speaker 03: what to do with Judge Connolly's Jamal decision, where he says there has to be a seal and a plug or seal and event at the same time, which necessarily implies he thinks that it's two structures. [00:34:13] Speaker 01: Correct, Your Honor. [00:34:14] Speaker 01: And for that, he cited Bechtin and said there has to be two structures. [00:34:18] Speaker 01: That's a claim construction. [00:34:19] Speaker 01: He reached that decision. [00:34:21] Speaker 03: And so if we just wipe that out, then your view is, [00:34:23] Speaker 03: that the plain and ordinary meaning of this claim has to encompass two structures or a unitary structure. [00:34:30] Speaker 01: Correct. [00:34:30] Speaker 01: Or that the defendant waived or forfeited the two-structure argument because they never made it. [00:34:36] Speaker 01: Only those claim constructions put in dispute. [00:34:40] Speaker 01: I think I get it. [00:34:40] Speaker 03: Your view is the unitary structure argument was a lie. [00:34:44] Speaker 03: That's what you argued to the jury. [00:34:46] Speaker 03: They didn't object to that. [00:34:47] Speaker 01: Yes. [00:34:48] Speaker 03: And because of that, this, in your view, new claim construction argument that it had to be two separate structures is not permissible. [00:35:00] Speaker 03: And so it has to be reversed. [00:35:02] Speaker 01: Yes. [00:35:03] Speaker 01: It was not raised on Daubert. [00:35:04] Speaker 01: There was no objection to the testimony. [00:35:06] Speaker 01: There was no objection to the jury instruction or a request for an alternative instruction. [00:35:10] Speaker 01: And again, if I go back to, again, [00:35:16] Speaker 01: The Mustak case, which says that when the case goes to the jury, when issues of claim construction, this is a direct quote from Mustak, when issues of claim construction have not been properly raised in connection with the jury instructions, it is improper for the district court to adopt a more detailed claim construction in connection with the JMA motion. [00:35:38] Speaker 01: That's our case. [00:35:40] Speaker 01: Thank you, counsel. [00:35:41] Speaker 04: I think we have your position. [00:35:42] Speaker 04: The case is submitted.