[00:00:00] Speaker 02:
All right, our next argument for today is 25-1121, Socket Solutions v. Import Global. Mr. Johnson, please proceed when you're ready.

[00:00:10] Speaker 03:
May it please the Court.

[00:00:15] Speaker 03:
Timothy Johnson for Import Global. Your Honors, this is an appeal from a preliminary injunction based in part on the erroneous construction of two terms, backplate and pin, in a patent related to an electrical wall outlet. The district court's construction of backplate is subtle but erroneous rewrite of the claim.

[00:00:33] Speaker 05:
I'm sorry to interrupt you, but I just want to ask you a sort of preliminary question about the status of this case. My understanding, I think, is that the Judge stayed the injunction, the preliminary injunction?

[00:00:50] Speaker 03:
By agreement of the parties, the case has been administratively stayed pending the outcome of this appeal. And that was like a year and a half ago, right?

[00:01:00] Speaker 05:
Yes, Your Honor. And the injunction was stayed, though?

[00:01:04] Speaker 03:
No, Your Honor. The injunction has been in place this entire time.

[00:01:07] Speaker 05:
Oh, the injunction is in place, but the case is stayed? Yes. Okay. Thank you. I'm sorry to interrupt.

[00:01:14] Speaker 03:
So the district court's construction of backplate is a subtle but erroneous rewrite of the claim, and the district court's construction of the term PIN transforms it from a structural component of the claim into a means plus function element as the final construction with no reference to any corresponding structure from the specification. It's essentially the reverse of what is required by Section 112F.

[00:01:40] Speaker 02:
Okay. If we were to agree with you, I know you want to get into both of them, and I'll let you do that. But I just want to know, if we were to agree with you on one or both of the claim construction issues and conclude they're erroneous, what is the result for this case? Clearly, it's a vacating remand for the district court to reconsider the question of likelihood of success. But is there any kind of stipulation by the parties? We often have this in infringement situations. Oh, well, If the claims are construed this way, we stipulate to infringement. If the claims are construed this way, there's no proof of infringement.

[00:02:12] Speaker 02:
Is there anything between the parties regarding either of these two constructions and what they foretell for the infringement analysis?

[00:02:22] Speaker 03:
There is no stipulation between the parties as to that, but it's the defendant's position that if we have one of those.

[00:02:29] Speaker 01:
Yes, right. All right. Go ahead. Continue.

[00:02:34] Speaker 03:
So even in the court below, socket solutions define this invention as pretty simple. It's a socket, a wall socket cover with an extension cord sort of extending down from it, and you have a power strip. So basically you get to cover the wall socket and then continue to use it through a power strip.

[00:02:53] Speaker 03:
And then Claim 19 also is pretty simple. And the structure of Claim 19 has two primary elements. First, it has a cover, and then it has an electrical cord. Those are the two primary elements. Then the term, the cover, was actually defined by the court as a structure that encloses the electrical components and hides a standard indoor electric wall outlet. Then the claim further defines what the cover by adding two components, a front plate and a back plate.

[00:03:28] Speaker 03:
Those are both components of the cover.

[00:03:32] Speaker 03:
And then, again, the front plate is construed properly, given a positional construction that's anchored to the cover. It's construed as a portion of the cover that is visible when installed on the wall outlet. It's anchored to the cover, and it's referenced to the wall outlet. So that construction, again, is correct.

[00:03:52] Speaker 03:
However, when we got to the back plate, the court made this subtle change in that it did not construe the term back plate with reference to the overall cover. Instead, it subordinated back plate to the front plate as basically saying any plate that's opposed to the front plate is And then it also added in that it has these electrical prongs.

[00:04:17] Speaker 05:
I guess, can I just follow up on the chief's question? Because with respect to this issue and with respect to the PIN, I guess I'm a little unsettled. One part, you presented this claim construction, the one you're talking about now, and the other side presented the one adopted by the district court. For which term, Your Honor? I'm sorry, for backplate. Yes, Your Honor. So are we – can we fairly conclude from the record that that would dislodge the judge's finding that that was determinative of and therefore would dislodge the judge's finding of a likelihood of success on the merits?

[00:04:54] Speaker 05:
Yes, Your Honor.

[00:04:56] Speaker 05:
Because – Well, I'll ask your friend the same question.

[00:04:59] Speaker 02:
Go ahead. Because. I'd like to hear the because.

[00:05:01] Speaker 03:
Because even in the photos – The backplate that is on the accused product, it has none of the additional requirements that the claim puts on backplate. It at first claims a backplate as a component of the cover, and then the claim goes on to add additional limitations to the backplate, which is it has the electrical prongs and then certain not only positional but dimensional limitations.

[00:05:28] Speaker 04:
Your position is that the proper construction would – would reflect that it needs to be against the wall, the back plate. Correct. So where do you find that additional requirement, the requirement that it be married to the wall?

[00:05:50] Speaker 03:
It's less of a requirement that it be married to the wall. It's more of sort of giving it the reference. Since the front plate was referenced as being facing away from the wall outlet, The opposite of the back plate would be the other side.

[00:06:04] Speaker 04:
I guess my question is where are you finding that? Is it just you're just inferring because you think it was a proper front plate construction that therefore the sort of the spirit of that means that the back plate, I'm missing something, where you find that the back plate needs to have as an essential aspect of it the wall.

[00:06:29] Speaker 03:
It's in the claim as the component of the cover, the preamble to the overall evidence. apparatus, in the case that this is installed in a wall socket. Now, if it's not installed in a wall socket, it still has a front and back, but it's just sort of to illustrate which side of the cover is the back, because that's the one that's going to be, it has the electrical prongs, so those are the prongs that go into the wall outlet. And again, the claim defines the front plate and the back plate as the external portions of the cover.

[00:07:03] Speaker 03:
That's what the word back does. It's not just a first plate or a second plate. It is a back plate, and the term back has specific meaning from the specification.

[00:07:13] Speaker 02:
I'm assuming thinness is involved in this too.

[00:07:15] Speaker 03:
Exactly, because to measure the thickness of the cover, you measure, according to the specification, the distance from the front plate to the back plate.

[00:07:25] Speaker 04:
But that, I'm with you all the way to this point, but then you're adding into that that The back plate must be, there must be nothing between the back plate and the wall. It has to be right up against the wall. And I don't know where you're getting that.

[00:07:43] Speaker 03:
And again, it may be, it's less of a limitation that it has to be up against the wall. It's basically a way of showing which side of the cover is the back.

[00:07:54] Speaker 02:
Is your construction, as I understand it, back plate means a component of the cover opposing the front plate?

[00:08:00] Speaker 03:
No, you're wrong.

[00:08:00] Speaker 02:
That's their construction. That's their construction. All right. So yours means the portion of the apparatus closest to the wall outlet when the apparatus is plugged into the wall? Yes, Your Honor. Okay, so why is this closest to the wall outlet thing part of the construction? I mean, I totally see Judge Seaborg's point, front plate, back plate, makes sense, but how does that have anything to do with closest to the wall?

[00:08:27] Speaker 03:
It's only just to reference it as being the external side of the cover. And since this is the only way you can plug it into the wall is using the back with the prongs, it's just simply to reference it. It could simply be the external plate or the external back because it is the back of the cover. And so it is the external exterior of the cover. And that's all we're trying to illustrate because the court did the same thing with front plates.

[00:08:54] Speaker 04:
So just to have consistency, that's why it was... I mean, the significance for you is that you have an additional plate in your accused product, right?

[00:09:04] Speaker 03:
Well, we do have a back plate that does not have the electrical prongs on it.

[00:09:11] Speaker 03:
And so...

[00:09:14] Speaker 03:
If the concern is that referencing it to the wall as being the closest plate, then really the construction is it's just the external plate of the cover. It's the back of the cover, not some internal plate within the cover. I mean, the cover has a front and a back. I mean, everywhere in the specification, that's how it teaches.

[00:09:40] Speaker 02:
The ham in the sandwich is not a piece of bread.

[00:09:42] Speaker 03:
Exactly.

[00:09:42] Speaker 02:
All right. Okay. So can I have you pivot? I want you to address irreparable harm. I know you're arguing about PIN. I want you to address irreparable harm. Can I just ask a question about PIN?

[00:09:53] Speaker 05:
Yes, of course. The judge didn't adopt either one of your constructions on PIN. Right. It went on a means plus function thing. But the thing about your construction, and this goes to how we decide this case and how far we go, I'm a little troubled. I don't see where you're getting this. PIN means a mechanical system, because it strikes me that PIN is just a component for making an electrical. So where do you get mechanical system, and is there a difference for purposes of our analysis on claim construction of mechanical system versus structure or component, which I think parallels more closely your friend's construction, so that's why I'm wondering what the consequences are and how significant it is.

[00:10:39] Speaker 03:
I think the problem is sort of the dearth of examples in the specification. It's just they have one example.

[00:10:48] Speaker 05:
Well, first, is there a distinction that matters if your construction is amended from means a mechanical system versus, say, means a component for making an electrical connection between the wire and the prong?

[00:11:05] Speaker 03:
The mechanical connection is based upon not only specification, but the fact that it is attached or fastened or attached to the wire. So that has to have some kind of a physical connection. And then it's also attached or fastened to the prong.

[00:11:21] Speaker 02:
It's a component.

[00:11:22] Speaker 03:
It's a component, yes.

[00:11:23] Speaker 02:
But you can't, I mean, you say mechanical system, it makes it sound like it's like a whole car engine. You know, like it's not a whole system, like the fuel injection system, which has multiple components. It's a single component.

[00:11:33] Speaker 03:
Yes.

[00:11:33] Speaker 02:
Unitary thing.

[00:11:35] Speaker 03:
And the mechanical part was meant to capture sort of the clasping where you have to attach these things with a mechanical force as opposed to, you know, some chemical.

[00:11:43] Speaker 04:
I understand your argument. You're effectively saying the pin has to mean something. Yes. And your argument is direct soldering is not consistent with the idea that you have to have something, whatever that pin may be, right? Yes, Your Honor.

[00:12:02] Speaker 02:
All right, can we now, can we go to irreparable harm? Can you touch upon irreparable harm? And in particular, I want to bring up an issue that neither party really meaningfully addressed, but I feel like is something that we ought to confront. I don't know, maybe you'll say we don't have to confront it, but both parties, the magistrate judge and the district court judge, both at least in a single sentence indicated that that you get a presumption of irreparable harm if there is a likelihood of success.

[00:12:33] Speaker 02:
And I'm a little anxious about that statement because both of the cases that are cited by the magistrate judge and by the district court judge preceded the Supreme Court's eBay decision or this court's decision in Bosch. So can you start by addressing that? And then my next question, like, is there such a presumption? And then my second question would be, did that presumption affect the irreparable harm analysis that either the magistrate or the district court judge articulated. Please, go ahead.

[00:13:01] Speaker 03:
My two answers for that is, no, there is no presumption, and yes, it did affect. Because I believe the district court did make that assumption, or did address like a... Well, start with why there is no presumption, because I didn't see that in your blue brief.

[00:13:16] Speaker 02:
I didn't see you argue that the district court misstated the law anywhere in your blue brief.

[00:13:21] Speaker 03:
And I And I think we focused on the district court's admission that the only evidence with the declaration of the inventor and the owner of the company that was brought in was just conclusory declarations. And the magistrate actually said – Does that have anything to do with presumption?

[00:13:41] Speaker 02:
Well – How in the world are we morphing your argument about conclusory expert testimony into – There's a problem with the law, the way the court stated it.

[00:13:53] Speaker 03:
Well, the presumption, and if you can look at the... Sorry.

[00:14:01] Speaker 03:
The magistrate judge did in... Let's see if I can grab it real quick.

[00:14:12] Speaker 03:
Where she...

[00:14:23] Speaker 03:
In Appendix 47, the magistrate judge does get into the law and then essentially does presume certain things about, you know, because there's a likelihood of infringement that somehow You know, having a competing product out there which is cheaper is going to harm, and therefore that's irreparable harm.

[00:15:08] Speaker 03:
And then money damages would be inadequate.

[00:15:10] Speaker 05:
I'm sorry. You're on page what of the appendix?

[00:15:13] UNKNOWN:
47.

[00:15:13] Speaker 05:
It says irreparable harm is preserved when a clear showing of patent validity and infringement has been made. Is that what you're referring to?

[00:15:26] Speaker 03:
Appendix 47?

[00:15:28] Speaker 05:
It's Appendix 47. It's the last sentence of the second full paragraph.

[00:15:35] Speaker 03:
Yes. Sorry, Your Honor. Thank you. Okay.

[00:15:42] Speaker 02:
Do you have anything further?

[00:15:46] Speaker 03:
Well, and so, but the court does say that, that, you know, that there is a presumption, and... Okay, why don't we, you're out of all your time, you're out of all your rebuttal time, and you're over.

[00:15:57] Speaker 02:
So we're going to hear from the other side. I'm going to restore two minutes of rebuttal time. Thank you. Mr. Rice.

[00:16:19] Speaker 00:
May it please the Court. Good morning, Your Honors.

[00:16:25] Speaker 00:
Let me start with Chief Judge Moore's question on irreparable harm, because I think I have a direct answer to that. The Court did not rely on the presumption. The presumption would have been necessary only if there had been no evidence on either side. Then the presumption would have been necessary to shift the burden from the movement. my client, and the PI to the defendant.

[00:16:58] Speaker 00:
However, there was ample evidence to support the irreparable harm, and the evidence was identified by the magistrate judge in some detail on the opposing counsel referred to, there was evidence on appendix pages 47 and 48. The magistrate judge went through the standard and identified the types of harms that qualify under this court's precedent as irreparable harms, then went through the evidence that

[00:17:43] Speaker 05:
What does footnote two mean? I couldn't quite... Footnote two... I mean, she says she's giving less weight.

[00:17:53] Speaker 05:
They agree that the assertions of market share loss lack meaningful substantiation, and that should be afforded less weight. However, defendant did not prove contrary evidence on this point, on this posture. So whose burden... Who has the burden to do what in the circumstance of defining irreparable harm?

[00:18:17] Speaker 00:
So if, assuming there's no presumption, the appellee in this case, the movement, the PI movement, has the burden to establish irreparable harm.

[00:18:33] Speaker 00:
We presented evidence of irreparable harm in many forms.

[00:18:38] Speaker 00:
clicking many of the boxes that the Federal Circuit has identified as the type of harms that are recognized as irreparable harms.

[00:18:48] Speaker 00:
The relevant part of the background to that footnote, Your Honor, is that In the PI briefing, the defendant did not address irreparable harm at all. It elected to address only likelihood of success and expressly stated that it would not address irreparable harm.

[00:19:13] Speaker 00:
We had a PI briefing, then a PI hearing. At the hearing, we presented evidence. We entered into the record evidence to support evidence our preliminary injunction facts, including the irreparable harm facts. At the hearing, the defendant objected to one point of evidence, and that was the market share. One of our arguments was that there was irreparable harm because the infringement was reducing the patent owner's market share.

[00:19:51] Speaker 00:
The objection was there was no quantification of what the market share was as between the patent owner, the defendant, and other competitors in the market, and therefore there was insufficient support.

[00:20:05] Speaker 02:
There's a lot of issues. Do you mind if I try and summarize and you tell me where I get it wrong?

[00:20:09] Speaker 00:
Absolutely, Your Honor.

[00:20:10] Speaker 02:
So here's my summary. Even if the district court erred in the statement of law with regarding this presumption, which, by the way, I think they did, They didn't apply that presumption. They went on and made fact findings based on four separate categories of evidence, each of which would independently support your irreparable harm argument. Those are fact findings that were made separate and apart from any presumption. And on top of that, the other side said below that they were not challenging at all the irreparable harm arguments that you've made. Does that summarize it?

[00:20:41] Speaker 00:
You summarized it perfectly, Your Honor. Okay.

[00:20:43] Speaker 02:
So why don't you go on then to your claim construction argument?

[00:20:45] Speaker 00:
Absolutely.

[00:20:48] Speaker 05:
On the final point where you agreed that it wasn't, the defendant never raised irreparable harm below, is that what your statement is?

[00:21:00] Speaker 00:
Defendant never addressed it in the briefs and never presented any rebutting evidence.

[00:21:07] Speaker 05:
What about Appendix 17?

[00:21:11] Speaker 05:
which is the district court's opinion, I believe.

[00:21:15] Speaker 05:
In the middle of the second full paragraph, it says, in short, I mean, that's all. Defendant now objects to the R&R affording plaintiff the presumption of irreparable harm. In short, defendant contends that Judge Lewis made no such finding, so plaintiff is not entitled to the presumption.

[00:21:39] Speaker 05:
Isn't that a challenge to the presumption issue or am I misunderstanding what I'm reading?

[00:22:03] Speaker 00:
Okay.

[00:22:05] Speaker 00:
That objection goes to the presumption issue. What they're saying is...

[00:22:10] Speaker 00:
because in their briefs they focused solely on the likelihood of success prong of the preliminary injunction analysis, and because in their view they defeated the likelihood of success, therefore they're objecting to the presumption of irreparable harm, the issue we were dealing with a moment ago, which pre-eBay would have arisen a presumption of irreparable harm would arise if you have a strong likelihood of success.

[00:22:46] Speaker 00:
They're saying there was no likelihood of success, so there should have been no presumption of irreparable harm.

[00:22:53] Speaker 00:
But they presented that argument, but they didn't present any evidence, and they didn't object to any of the other categories of irreparable harm on which the patent owner provided evidence.

[00:23:10] Speaker 02:
Okay, can you move on to your claim construction arguments?

[00:23:14] Speaker 00:
Yes, Your Honor.

[00:23:15] Speaker 02:
The backplate argument is... Let me just have you start with PIN, because I don't see how this PIN is a 112.6.

[00:23:24] Speaker 02:
I mean, that's like mind-blown. So how could this PIN be a 112.6?

[00:23:29] Speaker 00:
It's not a 112.6, Your Honor.

[00:23:32] Speaker 05:
Our view is... How can we affirm the district court's analysis?

[00:23:37] Speaker 00:
It is...

[00:23:39] Speaker 00:
Okay, the term PIN in the claim is a structural term.

[00:23:44] Speaker 00:
The question is whether a structural term in a claim can be given a purely functional definition.

[00:23:54] Speaker 00:
Our position is it was appropriate for the court to define PIN as it did with a functional definition because the PIN itself is a structure. 112.6 is a claim drafting rule that precludes a party from inserting into the claim itself purely functional language without any structure to go with it. In that situation, 112.6 or 112.F kicks in.

[00:24:23] Speaker 00:
and the claim construction must incorporate structures from the specification to supplement the purely functional claim language. In this case, everyone agrees that a PIN is a structure. There's no question about that. The question is, how do you define this structure? The structure was defined by the district court in purely functional terms. It's perhaps a little unfortunate that the district court used the word means

[00:24:53] Speaker 02:
I don't see where this, where's the function in the claim?

[00:24:57] Speaker 02:
Where's the function in the claim?

[00:24:59] Speaker 00:
The function of PIN is not recited in the claim.

[00:25:04] Speaker 02:
Okay, so we've got a structural element in a claim with no function requirement in the claim. I mean, it basically fails on all counts. It doesn't have means. It doesn't have a function. It's like it can't be 112.6.

[00:25:19] Speaker 02:
So if it's not 112.6, then the patentee is not limited to the structures disclosed in the spec.

[00:25:26] Speaker 00:
Correct.

[00:25:27] Speaker 02:
Any skilled artisan could identify what constitutes a PIN in this area.

[00:25:33] Speaker 00:
Correct.

[00:25:35] Speaker 00:
That's our position as the patent owner, as the plaintiff, that the PIN is not limited – to a particular type of pin or particular shape.

[00:25:44] Speaker 02:
You may not lose this argument on remand, but I don't see how we affirm the claim construction when the district court treated it as a functional 112.6 claim construction. I don't have any clue how our correction of the district court's claim construction errors may affect the outcome of the infringement or likelihood of success on infringement analysis. Because that's not presented to me. All I know is I have a claim construction that seems wrong.

[00:26:12] Speaker 00:
Well, so the court construed the PIN to incorporate the function that both parties agreed was the function of PIN.

[00:26:22] Speaker 00:
The pin is a connector that connects the electric wires to the electric prongs. It's disclosed in the specification that this is the function of the structure that is called pin. That is the electrical pin. It has a physical component and an electrical composition component. It's got to be composed of material that can transfer electricity from the pins to the prongs. So we know what the pin is.

[00:26:51] Speaker 00:
in the preferred embodiment.

[00:26:52] Speaker 04:
What I don't understand is you seem to be saying, on the one hand, everybody agrees that pin connotes a structure of some kind, but then the construction doesn't have any structure to it.

[00:27:08] Speaker 04:
So, I mean, you're sort of, I don't, you seem to be agreeing with what pin should connote, but then the construction doesn't address it.

[00:27:22] Speaker 00:
I think the Hill-Rom case is instructive on this issue. The Hill-Rom case identifies the principle that you can have a structural claim limitation, have a purely functional definition, and that does not convert claims. the structural term, into a 112.6 means plus function. And it pointed out that certain terms are best described, best defined by their function.

[00:27:57] Speaker 00:
It gives examples. In the Hill ROM case, it was a data link. And the question there was, does it have to be a wireless data link or can it be a wired data link?

[00:28:09] Speaker 00:
And they defined data link as anything that links data, basically. It didn't have a specific structural limit beyond that, and that was considered okay. The court addressed the argument that this converted data link to a means plus function, and it rejected that argument, saying, no, some terms are best defined purely by function. It gave examples.

[00:28:36] Speaker 00:
For example, container. Container, it doesn't have to be a particular shape. It doesn't have to be a particular size. It doesn't have to have particular material. But we all know that a container is a structure. And so if you define a container as that which contains, that's a purely functional definition, yet it's appropriate for that term. Our position is the court did not err on In defining PIN as a structure or a means, a structure, something that connects the electrical PINs to the electrical prongs, it physically connects them and connects them electrically.

[00:29:21] Speaker 00:
There is nothing in the patent –

[00:29:23] Speaker 04:
How can you have substantial likelihood of success on the merits if the accused product doesn't have any structure to it? It's just, as I understand it, a soldering approach. How can it be substantially likelihood that there's infringement?

[00:29:45] Speaker 00:
Because solder is a structure, Your Honor. It is a physical thing that physically connects the electrical wires to the electrical prongs. It electrically connects the electrical wires to the electrical prongs. How are you finding that the solder is a structure? I don't follow you.

[00:30:08] Speaker 00:
Solder is a structure. I think maybe the confusion is that it has a specific shape. It can take different shapes. It doesn't have a fixed or uniform shape. But it is a structure. It is a thing. It is a physical thing.

[00:30:24] Speaker 00:
And more importantly for our— I just don't understand this.

[00:30:27] Speaker 02:
I mean, a pin is a known thing to a skilled artisan in this field. Solder is not a pin. Maybe you've got an argument under DOE, but solder is not a pin. I mean, that's just silly. That's silliness. A pin is a known structure to a skilled artisan.

[00:30:45] Speaker 02:
A solder is a bunch of goo that just connects to electrical things. It makes – it forges an electrical connection. It's a bunch of melted metal. That's it. It doesn't – it's not a pin, but it might be – you might – you have – maybe you have a DOE argument.

[00:30:59] Speaker 00:
I understand your point, Your Honor. There was no expert testimony from – Melted goo?

[00:31:05] Speaker 02:
Nobody came along with melted goo, huh? No.

[00:31:11] Speaker 02:
Go ahead.

[00:31:11] Speaker 00:
Yeah.

[00:31:12] Speaker 02:
Why don't you hit on backplate? Hit on backplate because I feel like you're running out of time.

[00:31:17] Speaker 00:
Okay. I see you, Your Honor. Yes. All I'll say is that in our position is that the uniformity of shape is not required for a pen. It is a thing. And I understand you've got views on that. I'll move on to backplate. Backplate, the simple issue is the preferred embodiment in the patent was a two-plate device. It had one front plate, one back plate. The cover has to have...

[00:31:47] Speaker 00:
a front plate and a back plate. The front plate is in front of the pins and wires. The back plate is behind the pins and the wires. That's what the claim requires. That's what the patent discloses. In the preferred embodiment, the back plate happens to go against the wall because there's only one plate behind the pins.

[00:32:05] Speaker 00:
In the accused product, there are two plates behind the pins. Our position is by adding an extra plate, you don't change the nature of the infringement. Just to give an example that we used in the brief, which I think is telling, if you take the preferred embodiment of the patent, the two-plate structure, the back plate with the pins, the wires, everything, just as it's depicted in the illustrations and in the preferred embodiment, and you add a functionless thin plate to the back under the appellant's claim construction, you would dispossess the back plate of its back plate status and the new decorative rear plate would now be called the back plate, and therefore they would get out of infringement, our position is you can't add a non-functional, trivial structure onto an infringing product to avoid infringement.

[00:33:11] Speaker 00:
And that is what they – our position is that's what they did with the accused product. They had a back plate that opposed the front plate. It had the pins on it. It had the wires on it. Functioned just as in the patent. And then they put another plate on back and said, now we don't infringe. And that's incorrect, Your Honor. And we believe that the district court should be affirmed.

[00:33:31] Speaker 04:
Can't you – you can have in mind a particular patent and design your product to – not to infringe.

[00:33:40] Speaker 00:
Certainly can design around, Your Honor, but it's the general rule is you can't design around by adding something, adding a structure to a product that infringes an apparatus claim. There's exceptions to that, but this case is not one of those exceptions.

[00:33:58] Speaker 01:
Okay. Mr. Thank you, Your Honor. Thank you. We'll give you time for rebuttal time. Thank you.

[00:34:07] Speaker 03:
Thank you, Your Honor. I'll quickly talk about the back plate again.

[00:34:12] Speaker 03:
The concern seems to be about its reference to the wall. And really what we're saying is that you hold the cover in your hand. It's a physical device. You can look at one side and say, this is the back. This is the back of the cover. That's the back plate.

[00:34:23] Speaker 02:
Your front and your back. Exactly. Like you're standing in front of me. You've got a front. You've got a back.

[00:34:26] Speaker 03:
Exactly. And that's what gives meaning to the word back plate. And we're not saying that you can just stick another decorative plate right onto it and somehow that avoids infringes. That's not what the defendant did. The back plate for the defendant serves other purposes. It's not just simply a decorative thing. And giving meaning to the term back, that's what the claim construction is supposed to do. What they have done is instead of trying to see if you have a backplate, they can't tell if you have a backplate until they take the thing apart.

[00:35:00] Speaker 03:
And then if it has the prongs on the backplate, then suddenly that's the backplate. But before they take it apart, they can't tell you if it's a backplate under the patent. And we're saying you can tell it's the back plate because it's the rear. Then you open it up and you see are the prongs there. And if they're not, then it's a back plate. It's just not a back plate that has the additional limitations of claim nine on it, which is the requirement of the claim. So what they're trying to say is you're looking for really a prong plate.

[00:35:30] Speaker 03:
Any plate that's behind the front plate is the back plate to them, but really they're saying it's the prong plate. Now the prongs are sort of leading. And I would just say that the...

[00:35:41] Speaker 03:
This concern about the design arounds, the inventor himself in his specification says, furthermore, it should be understood that the appendix claims do not necessarily comprise the broadest scope of the invention, which the applicant is entitled to claim.

[00:35:56] Speaker 02:
I want you to go back to back plate. So, I mean, if you had, there's a cover. A cover has to have a front plate and a back plate. This is a comprising claim. Cover can have 5,000 more plates and still infringe this claim.

[00:36:11] Speaker 03:
If those plates are internal, but the back part, if it's, if the... I don't know that I totally agree with that.

[00:36:18] Speaker 02:
A back plate, and you go on to say what it means, comprising at least one set of electrical prongs, including a hot prong. I mean, you've defined what a back plate is in your claim.

[00:36:29] Speaker 03:
I disagree to this point.

[00:36:31] Speaker 02:
Your claim, you understand.

[00:36:34] Speaker 03:
The term backplate is a component of cover. Then the claim further comprises backplate to include some additional limitations, but it's serving two parts.

[00:36:42] Speaker 02:
I 100% agree. I don't disagree with what you just said, but I'm not sure that backplate on its face has to be the thing on the back of the cover as opposed to on the back of the front plate. Do you understand my distinction?

[00:37:00] Speaker 03:
I don't, in that you're using the word back in a way that doesn't make sense. It's the back of the front.

[00:37:08] Speaker 02:
It's the back of the cover.

[00:37:09] Speaker 03:
It's the back of the cover.

[00:37:12] Speaker 02:
Like the back of the car is the trunk and the fender and all that. Okay, I got it.

[00:37:19] Speaker 03:
Thank you, Your Honor.

[00:37:19] Speaker 02:
Thank you. I thank both counsel. This case is taken under submission.