Legal Case Summary

. It started with addiction area and never properly analyzed intrinsic evidence. We got off track with extrinsic attorney drawings that were shown not for the purposes of what was at dispute or what the subject matter was, but for purposes of change in addiction area meaning that something it wasn't. The district court had two fundamental errors with its dictionary approach. The first one relates to curved shang. The court started up from the marine webstreet dictionary straight out to find the curr. The dictionary meaning was to have or to take a turn change or deviation from straight liner plane surface without sharp brakes or angularity. That was the dictionary meaning. We all know dictionary meaning doesn't really answer the entire question. Look, the intrinsic evidence. But where are the intrinsic evidence which you say supports your position? Let me back up. The dictionary meaning was changed from without sharp brakes or angularity to read as a judge. Change it to be without sharp corners or sharp angularity which changed a dictionary meaning from one that would be without angularity or to one that would have certain angles as long as they're not sharp. Now, sharp is a word that was never used and has never been used for these type of devices, probably that more from perceived. It doesn't exist. Sharp doesn't describe these type of products. Okay, just came out with dictionary. It's not used anywhere in the cat in itself

. But your request for or your claim construction is, as I understand, an on angular continuous bend, correct? Yes. Well, we're as as Judge Garasa inquired a moment ago, where is the support for that construction and the intrinsic record? Okay, that is supported at column 3, lines 38 to 43, in which it mentions and it describes all of it. It's curved over a significant fraction of its length. But of course, if you look at figure 2 and the text that relates to figure 2, I guess figures 1 and 2, the text describes this embodiment anyway is having three straight portions, 14, 18 and 20 and an arqueot portion 16. So the shank 12, which consists of the arqueot portion 16 and 2 straight portions 18 and 20, is certainly not a continuous bend, because there are straight segments. That's correct, but the the definition of reproposals came out of the spec as far as when it talks about curve. Non-angle continuous bend over a significant portion of the length. We didn't say it had to be the entire length, it had to be a significant portion. What? Where in the spec is it saying not angular, though? In fact, you know, look, I think it's simple geometry. When a straight line meets a curve, there's an angle there, right? You have to go from a straight line to a curve. As Judge Lynn pointed out, the shank includes 16, 18 and 20. So a curved shank, which is only the curvature is 16, it meets the straight portion 18. By virtue of simple geometry, doesn't there need to be an angle where a curve meets a straight portion? I don't think I agree with that. There's just a continuous line and then the line starts to bend with the curvature. So I don't think there's an angle there. Well, let's look at figure two. Figure two shows a clear angle between the butt and the shank, for example

. Doesn't it? I mean, how can you say that's continuous between the butt and the shank? The butt is straight. The shank begins to curve at the first tapered portion at the beginning of 16. Clearly, there's an angle there. In fact, they even show how the line would continue on if it were to go straight. And they show the curve to axis 22. So how is that not an angle between the butt and the tapered shank portion? It may have the claim to firmist curved shank. It's not the butt. Okay? You can confuse it. I think the butt and the curved shank is being one and the same. And that's not the curved position. The position is the claim line which talks about the shank has to be curved. And that's what I think you need to refer to, not the transition between the butt and the shank, because that's something that claims all about. So now when you look at the proper context, the curved shank, as required by the pattern, as we see it, is curved. You know, it makes your mean a curve. Where are you referring back to the curved shank in the claim language, an elongated body having a curved shank configured to occupy the upper portion? That's the curve that we believe was erroneously interrupted by the disc curved shank. What is meant by curved? That's what's before us. But where would the angle be? Why wouldn't there be an angle when the change is judged more points out from the shank to the lower portion of the nail? Well, I guess the answer to that is there's no testimony that's an angle

. And I don't see it as an angle. We're talking about the curved portion. What is meant by the curved portion? And what is the definition of curved? Councilor, you said that the specification supports your non-angular continuous bend over a significant part of the leg. And I was hoping you were going to direct me to where you'd come up with the non-angular part. The non-angular, as we propose, relates to definition that curved is not included angles. It's that simple. The chord. Does the word bend bend or bend include angles? I don't think so. The curved. The word bend or bend does not include angles. Doesn't strike or refer to its own product. Is containing a bend? Strike refers to its product as having an angle bend. That's a little different terminology. The patented self refers to angle bends as being something that's curved. The patented self, this says I'm paraphrasing here, but basically it says angle bends are not good. But is there a full slew of prior art? I realize the strike or product is of course not prior art. And the strike or patent was ten years after the patented issue

. So it too is not really prior art. But isn't there a whole slew of prior art that was cited in this prosecution history, the 507 patent, the 313 patent, the 296 patent, the 202 patent, all which appear to have angular designs and refer to those as bends. They don't say non-angular bends or angular bends or non-angular bends. They just call them bends. The calm bends possibly, but let's pack up a little bit. The patented self refers to angle bends as being something different than a curve. It just does. It's different. R-acuse product has an angle bend. No, no. What? Council, where does the patent refer to angle bends as being something different than curved? Yeah, it's called column 3 lines, sorry, line 45. Obduced with angle bends are smaller as curves relative to the object length. They do not pass through their own envelope or insertion. Okay, wait. No. So they don't say all angle bends. They say angled bends that do not pass through their own envelope for insertion

. Because, I mean, certainly you would have to concede if the angle bend was a one-degree angle, it was a very short object. It could pass through its own envelope. Well, that's not so bad. I mean, one more nerve-wracking. It seems an obvious one. Well, now we're talking about potentially document equivalence forces literal. Now, let's back up here. There was no document equivalence analysis. The whole case related to literal infringement and what is meant by curved shank. Curve shank, the dictionary says without angle area, no angles. It was changed to be including some angles yet undefined with sharp hits, no one knows with sharp hits. And the only way they could find a little infringement is case of our angle bend was to change the meaning of curved shank to include an angle bend. And that's where we didn't get our getting cork, because this is not a little infringement case. A curve does not and cannot include an angle, cannot include an angle bend. And then, if you're getting into the document equivalence and what they didn't want to go to the document equivalence, they had problems. Because that's when you bring in, is it usable with a brooch? Or is this not? What was the patent trying to accomplish with the curve? And that's where this case got off its track, right there. And the second issue is transverse

. The patent itself defines transverse. It used the word defines. And that's that column two lines 56-88. It says, further, figure two further illustrates a plurality of transverse holes, each of which is defined on a respective axis, intersecting the nail axis 22, and perpendicular to the portion of the nail axis at the moment portion. The drawing shell transverse holes being perpendicular, the spec defines it as being perpendicular. The courts interpretation basically read out the triangular transverse. The accused products had only two holes perpendicular. The claims required at base three, so there's no literal infringement, there's been no argument of document equivalence in the transcript. Mr. Bob Lee, you're well, and to your rebuttal time, do you want to save your rebuttal time? I will. Thank you. Mr. Laney? Good afternoon. Two judges may proceed. You may proceed. Thanks, Chris. I'm here with co-council, Paul Vickery, and Representative Kimit

. I'd like to address, real quickly, Mr. Vogler made the assertion that they always describe the striker nails having an angled band. I'd like to draw the court's attention to the Pentax page A2009. If you look at A2009, in particular, the last two bullet points on the right side. If you look at the last two bullet points, the first one reads, the curvature of the nail allows insertion at the standard entry point, i.e. the lateral entry point just inside the greater tuberosity. Now, what's key about that is they're describing their nail as having a curvature. Now, let's juxtapose that as to how the patent used curve. And this illustrates that curve has an understood meaning. But if you go to page 648, Pentax 648, or if you have a patent, you go to column 4, line 23. The curve of the nail 10 permits its insertion through an aperture between the ball and the greater tubercle at the top of the humors. So both of these documents, both striker as well as the patent, describe this curve as permitting it to go through what striker calls a standard entry point. Moreover, as Judge Moore pointed out, they described their nail as having a 6 degree lateral bend. They don't say it's an angled bend, they say it's a 6 degree lateral bend. But I think what's key on the description of that, again turning to A2009, they say it's how they describe this bend. They describe the bend as allows insertion of the nail along an almost straight path

. Well, that juxtapose perfectly with the way the 4 for 4 patent describes that the curve is able to follow its own envelope. Now, striker tries to argue that the nail of the 4 for 4 patent is limited to a shape that is able to pass through its own envelope. Well, how do we know that? Why do I say that? I say that because they say this thing has to exclude any and all amounts of angled bend and small radius curve. Well, we've asked our numerous times to define, well, what is it? And then, support to exclude something from the definition. What is the boundary that you're excluding? What are you excluding? They have never once been able to ask that question. So we turn to the specification. Well, what does it say an angled bend or a small radius curve is? It says that it's something that does not, if you have angled bend or a small radius curve, you do not pass through your own envelope. Now, what's key about this is that later it goes on and says, hey, wait a minute, the preferred embodiment does not pass through its own envelope curve. Which suggests that it has some angled bend or small radius curve. So it's clear from even the specification that excluding any and every amount of angled bend just isn't the proper construction. Moreover, including the limit of the curve. Well, count for a wait a minute. What about, I mean, small radius curve. It's still a curve and it doesn't pass through its own envelope because it's a small radius curve. So maybe curve should be construed like they say as excluding angles, but maybe that whether it passes through its own envelope is only relevant to the radius of the curve. I'm not sure I'm following the question. First off, you're trying to suggest that striker says they want this claim limited to something that passes through its own envelope, but I haven't seen them argue that

. I don't think that when they argue the claim construction means a long narrow part of the mail having a significant, having a non angular continuous bend necessarily means that it necessarily has to pass through its own envelope. Well, they do say that it cannot have any amount of angled bend or small radius curve, but we don't know what that means except for what the specification tells us. Which it tells us if you have small radius curve or if you have angled bend, it does not pass through its own envelope. So you can't separate the two and there's never been any construction of what angled bend or small radius curve means. What are the boundaries of what it is you're going to exclude other than the specification stating that if you have it, you don't pass through your own envelope. Are you suggesting the claim is limited to something that does pass through its own envelope? I absolutely do not think it has to pass through its own envelope. In fact, if you look at dependent claim 13, dependent claim 13 specifically says claim one having a profile that substantially passes within its own envelope. Now, the doctrine of claim differentiation, although it is a presumption, it's not hard and fast rule. That in of itself, though, gives us a presumption that claim one is broader. Councillor, you have a stronger argument that you probably just haven't gotten to. I'm sure you were going to bring it up, but on column three, at lines 38, it says because the nail tend is, quote, gently curved. It is said to largely pass through its own envelope. Well, gently curved to me is a much narrower term than curved as used in claim one. And gently curved only largely passes through its own envelope. So then what does curved do? It might not pass through its own envelope at all, right? It's not required by the collection. Right. So it seems to me that claim one is not limited to something that passes through its own envelope, even substantially, not just because it claimed differentiation, but because of the definition in the specification. But again, I just don't see them making the argument that it is. And if I'm wrong, it explains to me how they are. Well, I don't know what the meaning of angle bend or small radius curve is. What does that mean? Is it, I mean, their argument is that their definition excludes any and all angle bend or small radius curve. And so I only submit, I think that they're getting that by trying to exclude any and all angle bend small radius curve. But they're getting it directly from the specification. I'll call them three lines, let's say, 44, objects with angled bends or small radius curves relative to the object length do not pass through their own envelope on insertion. Correct. So what does that mean? So it means something with an angle bend or small radius curve does not pass through its own envelope on insertion. But if you look at the preferred bottom and it describes even the preferred bottom at beginning on that same column line 51, it says even the preferred bottom that doesn't pass perfectly through its own envelope. And are not well suited for insertion into a broached hole, right? And that's the other key. The other key is they try to say this thing has to be able to be used with a broach that it's necessary part in order to find curve. It has to permit the nail to be used with a broach. And I think this file history is clear that the use of a broach is a distinctly separate invention than the nail itself. The nail is designed to secure fragments of the proximal humerus. The use of a broach was a method that is described in the specification, but the examiner said you have to make an election. The use of a broach is a distinctly separate invention

. But again, I just don't see them making the argument that it is. And if I'm wrong, it explains to me how they are. Well, I don't know what the meaning of angle bend or small radius curve is. What does that mean? Is it, I mean, their argument is that their definition excludes any and all angle bend or small radius curve. And so I only submit, I think that they're getting that by trying to exclude any and all angle bend small radius curve. But they're getting it directly from the specification. I'll call them three lines, let's say, 44, objects with angled bends or small radius curves relative to the object length do not pass through their own envelope on insertion. Correct. So what does that mean? So it means something with an angle bend or small radius curve does not pass through its own envelope on insertion. But if you look at the preferred bottom and it describes even the preferred bottom at beginning on that same column line 51, it says even the preferred bottom that doesn't pass perfectly through its own envelope. And are not well suited for insertion into a broached hole, right? And that's the other key. The other key is they try to say this thing has to be able to be used with a broach that it's necessary part in order to find curve. It has to permit the nail to be used with a broach. And I think this file history is clear that the use of a broach is a distinctly separate invention than the nail itself. The nail is designed to secure fragments of the proximal humerus. The use of a broach was a method that is described in the specification, but the examiner said you have to make an election. The use of a broach is a distinctly separate invention. And that is that if you look at appendix 797 and 786. On 797 the examiner clearly states that group one is a human element is to the nail, the nail itself. And then client group three is a method for implanting the nail, namely using the broach. The examiner said these are two distinctly separate pick one. So the examiner did it, picked one, picked group one, the nail itself. And the district court recognized that. But they have to be used together? Absolutely not. And if they had elected to go with a method claim that use a broach they would have had to be used together. And yes, the broach may have had some may have impact on what type of nail and shape of nail you could use with a broach. But claim one's broader claim one doesn't have to be used with approach. Therefore it's broader. What other section of the specification supports the idea that it's broader than a broached hole because the only place I see anything other than using this an approached method is a column three lines 33 when they talk about a rotating drill bit or a reamer but they go on to say why those are no good because they cause tissue damage and another problem. So we're in the spec do we find support for the notion that this should be read more broadly like you're suggesting now. Well, first I would disagree that it says using rings and drills are no good in every case. It does say that the broach hole has its benefits. And that in some cases a drill and a ring would not be ideal. But to answer your question the entire spec talks about the nail in the context of using a broached hole

. And that is that if you look at appendix 797 and 786. On 797 the examiner clearly states that group one is a human element is to the nail, the nail itself. And then client group three is a method for implanting the nail, namely using the broach. The examiner said these are two distinctly separate pick one. So the examiner did it, picked one, picked group one, the nail itself. And the district court recognized that. But they have to be used together? Absolutely not. And if they had elected to go with a method claim that use a broach they would have had to be used together. And yes, the broach may have had some may have impact on what type of nail and shape of nail you could use with a broach. But claim one's broader claim one doesn't have to be used with approach. Therefore it's broader. What other section of the specification supports the idea that it's broader than a broached hole because the only place I see anything other than using this an approached method is a column three lines 33 when they talk about a rotating drill bit or a reamer but they go on to say why those are no good because they cause tissue damage and another problem. So we're in the spec do we find support for the notion that this should be read more broadly like you're suggesting now. Well, first I would disagree that it says using rings and drills are no good in every case. It does say that the broach hole has its benefits. And that in some cases a drill and a ring would not be ideal. But to answer your question the entire spec talks about the nail in the context of using a broached hole. I think the broadening of it comes from the fact that claim 13 makes it clear that the curve of claim one does not have to pass through its own envelope. Moreover, I think the fact that this cortaline of cases and e-pass and go light as well as the most recent ventana versus medical systems this court made it clear that a specification can close with multiple inventions. And the claim doesn't have to encompass every feature every benefit that's described. And I think this is exactly that type of case. But if it can't be used without the broach hole, right? Oh, it can be used by the broach. How is it? How is the whole made for insertion of the nail? With an all. It's called an all which is. It takes a mirror. It's a medieval looking thing that cuts it into the bone. And then I sometimes I think you still use a reamer or drill but that's acumen supplies that with this patented device. Supplies that and surgeons have the option that can use a broach or they could use a drill or reamer. And then they just insert it into the greater, right on the other side of the greater table. With and without the broach. Usually without the broach from the testimony provided. In fact, our own expert testified he's only used the broach once and that was the very first time to create the video showing that the use of a broach. Every other hundred or so times he never used actually a broach. So the broach isn't critical to inserting this nail in order to perform its stated function which is to secure the fragments of the proximal humorous to the foundation which is the nail itself

. I think the broadening of it comes from the fact that claim 13 makes it clear that the curve of claim one does not have to pass through its own envelope. Moreover, I think the fact that this cortaline of cases and e-pass and go light as well as the most recent ventana versus medical systems this court made it clear that a specification can close with multiple inventions. And the claim doesn't have to encompass every feature every benefit that's described. And I think this is exactly that type of case. But if it can't be used without the broach hole, right? Oh, it can be used by the broach. How is it? How is the whole made for insertion of the nail? With an all. It's called an all which is. It takes a mirror. It's a medieval looking thing that cuts it into the bone. And then I sometimes I think you still use a reamer or drill but that's acumen supplies that with this patented device. Supplies that and surgeons have the option that can use a broach or they could use a drill or reamer. And then they just insert it into the greater, right on the other side of the greater table. With and without the broach. Usually without the broach from the testimony provided. In fact, our own expert testified he's only used the broach once and that was the very first time to create the video showing that the use of a broach. Every other hundred or so times he never used actually a broach. So the broach isn't critical to inserting this nail in order to perform its stated function which is to secure the fragments of the proximal humorous to the foundation which is the nail itself. I'd also like to address the issue of transverse holes. In particular, the suggestion that transverse holes is necessarily defined as perpendicular. There are several arguments against this and I think probably the most convincing one is the fact that the patent D knew how to say perpendicular. He didn't say perpendicular and the can't claims. He said transverse. And by transverse transverse has a broader meaning. It means across. Now, how do we know that he meant the broader meaning? Is there anything in the specification that tells us and the answer is absolutely. If you look at column two, line one, it says, a red line 45, the butt portion has transverse holes oriented at select angles to receive fasteners attachments to the... I'm not with you, but you got to remind me again where you are. I'm sorry, column one, or line 45. Okay. And you see where it says the butt portion has transverse holes oriented at selected angles to receive fasteners attached to the fragments. It says the same thing in the abstract. Now, what's key about that is that indication right there

. I'd also like to address the issue of transverse holes. In particular, the suggestion that transverse holes is necessarily defined as perpendicular. There are several arguments against this and I think probably the most convincing one is the fact that the patent D knew how to say perpendicular. He didn't say perpendicular and the can't claims. He said transverse. And by transverse transverse has a broader meaning. It means across. Now, how do we know that he meant the broader meaning? Is there anything in the specification that tells us and the answer is absolutely. If you look at column two, line one, it says, a red line 45, the butt portion has transverse holes oriented at select angles to receive fasteners attachments to the... I'm not with you, but you got to remind me again where you are. I'm sorry, column one, or line 45. Okay. And you see where it says the butt portion has transverse holes oriented at selected angles to receive fasteners attached to the fragments. It says the same thing in the abstract. Now, what's key about that is that indication right there. It's talking broadly. It's saying selected. It's saying user can designate this. So, when you talk about perpendicular, you're talking to the nail axis at the butt portion. Because clearly, if we look at figure two, or figure one, either one, you do see that the holes are at different angles, like different places in the butt, but with regard to the axis, they're all perpendicular. So, I don't necessarily see column one, lines 45, suggesting that transverse holes means broader than perpendicular with regard to the nail axis. It all depends on where you're going to measure the angle from, right? I mean, so certainly they're going in at different angles. You've got a cylinder and they're going in at all different angles, but they're always perpendicular to the nail axis, the butt. The preferred embodiment is correct that they're always perpendicular. But the question is, are they limited to perpendicular? Is there any disclosure that says that indicates that when you use transverse and when you describe the invention that it's limited to having an axis that's perpendicular to that? And I think the answer is no. By talking abroad, turns by saying you can select the angle. But the angle that you're selecting is not the angle relevant to the nail axis. I completely disagree, Judge. When it says selected angles of the transverse holes, it's saying the angles of the holes relative to each other, namely the hole axes, the axes of the hole. That's different from the axis of the butt. We're not sure of the axis of the hole. We're defining transverse hole, but transverse hole in relation to what? Transverse in relation to what? Transverse in relation to the butt portion

. It's talking broadly. It's saying selected. It's saying user can designate this. So, when you talk about perpendicular, you're talking to the nail axis at the butt portion. Because clearly, if we look at figure two, or figure one, either one, you do see that the holes are at different angles, like different places in the butt, but with regard to the axis, they're all perpendicular. So, I don't necessarily see column one, lines 45, suggesting that transverse holes means broader than perpendicular with regard to the nail axis. It all depends on where you're going to measure the angle from, right? I mean, so certainly they're going in at different angles. You've got a cylinder and they're going in at all different angles, but they're always perpendicular to the nail axis, the butt. The preferred embodiment is correct that they're always perpendicular. But the question is, are they limited to perpendicular? Is there any disclosure that says that indicates that when you use transverse and when you describe the invention that it's limited to having an axis that's perpendicular to that? And I think the answer is no. By talking abroad, turns by saying you can select the angle. But the angle that you're selecting is not the angle relevant to the nail axis. I completely disagree, Judge. When it says selected angles of the transverse holes, it's saying the angles of the holes relative to each other, namely the hole axes, the axes of the hole. That's different from the axis of the butt. We're not sure of the axis of the hole. We're defining transverse hole, but transverse hole in relation to what? Transverse in relation to what? Transverse in relation to the butt portion. Correct. And it can be in our position as it's across the butt portion. Mr. Laney, before you finish, and I know you're almost at a time, even if we were to affirm the claim construction and affirm on the merits, the district judge here graded the permanent injunction with the following statement. The general rule is that the injunction will issue once infringement and validity have been a judged up in light of eBay. We require to at least fake hate and remand that back for a determination of the of the customary permanent injunction factors. I don't want to see that amount of time if I'm answered the question. We don't agree that you necessarily required to send it back because this court views judgments and other opinions. And I think the court made ample factual support that would support even under the fact that the factors, irreparable harm, inakward remedy, monetarily, balance of harms, and as well as the need for the device. I think the court made sufficient factual findings that would let this court uphold the judgment in particular she found that this was the world's largest orthopedic company that set out to deliberately copy and drive our company out of the market. And by taking away 75% of the market share. I think patent law if it does anything at least it gives you a right to control who you're going to compete against. And while they've licensed it to other people surely they have the right to tell one company that they know their intent is to drive them out of the market to say you're not, I'm not going to compete against you. You're not allowed to practice my device. What the district court's consideration of those factors is once in the context of the request for a stay and not necessarily as a review of the propriety of the injunction itself. And Judge, I agree with that completely. And to the extent that Judge would like the court to do with the first instance use her own discretion

. Correct. And it can be in our position as it's across the butt portion. Mr. Laney, before you finish, and I know you're almost at a time, even if we were to affirm the claim construction and affirm on the merits, the district judge here graded the permanent injunction with the following statement. The general rule is that the injunction will issue once infringement and validity have been a judged up in light of eBay. We require to at least fake hate and remand that back for a determination of the of the customary permanent injunction factors. I don't want to see that amount of time if I'm answered the question. We don't agree that you necessarily required to send it back because this court views judgments and other opinions. And I think the court made ample factual support that would support even under the fact that the factors, irreparable harm, inakward remedy, monetarily, balance of harms, and as well as the need for the device. I think the court made sufficient factual findings that would let this court uphold the judgment in particular she found that this was the world's largest orthopedic company that set out to deliberately copy and drive our company out of the market. And by taking away 75% of the market share. I think patent law if it does anything at least it gives you a right to control who you're going to compete against. And while they've licensed it to other people surely they have the right to tell one company that they know their intent is to drive them out of the market to say you're not, I'm not going to compete against you. You're not allowed to practice my device. What the district court's consideration of those factors is once in the context of the request for a stay and not necessarily as a review of the propriety of the injunction itself. And Judge, I agree with that completely. And to the extent that Judge would like the court to do with the first instance use her own discretion. I would agree the appropriate action would be to vacate and have her do that. However, I would only say that the fact she did find what support the judgment she reached. Thank you. I'm out of here. Thank you, Mr. Lenny. Mr. Bogo you have four minutes. Thank you. On the current shape the issue is whether the district court air is a matter of law. And the analysis was taken in dictionary one that included without angularity to now include in that included some form of angles which is contradicted by the dictionary and also contradicted by the spec which says angle bends and not appropriate. The striker also proposed a second component to that and that was claim disavow. And that's what we added the language is should be used with a broach and angle bends and the claim is not restricted to a broach. I mean you say more than not. Again, there's two components to the claim destruction. One was made by Kurt Schenk. The second one is whether it was called disavow based on statements in the spec that the use of the broaches important is one of the features of the invention

. I would agree the appropriate action would be to vacate and have her do that. However, I would only say that the fact she did find what support the judgment she reached. Thank you. I'm out of here. Thank you, Mr. Lenny. Mr. Bogo you have four minutes. Thank you. On the current shape the issue is whether the district court air is a matter of law. And the analysis was taken in dictionary one that included without angularity to now include in that included some form of angles which is contradicted by the dictionary and also contradicted by the spec which says angle bends and not appropriate. The striker also proposed a second component to that and that was claim disavow. And that's what we added the language is should be used with a broach and angle bends and the claim is not restricted to a broach. I mean you say more than not. Again, there's two components to the claim destruction. One was made by Kurt Schenk. The second one is whether it was called disavow based on statements in the spec that the use of the broaches important is one of the features of the invention. And Schenk's with angle bends or smaller raised curves are things that you stay working for the reasons they said to not have tissue damage and things like that. And the district court rejected that so there's two components to it. But the error that we are submitting was the definition of Kurt which did not give us a fair opportunity to present our case to the jury. Because if anything it should have been a document equivalence issue whether our product which we our testimony was an angle bend and you know the reference of Mr. Laney to the document in the appendix was is a physician manual. You know it's not the engineers it's not lawyers. Test by just a physician manual refers to a six degree light of bend right below the passage he identified. But what we didn't get our day in court was the proper on what what the proper analysis should have been. It wasn't let on infringement because if you take the definition of Kurt whether with a dictionary which we would have accepted the regular dictionary meaning because it meant without any reliability. But then where became a problem was the court did not stop there the court then took it that means something it wasn't meant to me and something that's contributed by the fact. They include angles and so we did not get our day because it became an issue of literal infringement versus document equivalence. And if you go to the document equivalence then it's a question of fact then you bring in the issues of ways function result then you could look into whether broaching is significant or not. And then you will find as our experts testify that a shank with an angle bend it's a term of art in the industry is different. Our T2NL cannot be used with the broach we cannot accomplish any of those benefits and that should have been the proper analysis and that's where this K-aport went wrong. That's what the district court went wrong. It was changed from a case that might have been a doctor equivalence case to a literal infringement because they changed the meaning of Kurt. There's something that's not addiction air and something that's not supported by the spec and how do they do that they use the 20 drawings of makeshift products saying these will work they have an angle bend they'll work in a polished hole

. And Schenk's with angle bends or smaller raised curves are things that you stay working for the reasons they said to not have tissue damage and things like that. And the district court rejected that so there's two components to it. But the error that we are submitting was the definition of Kurt which did not give us a fair opportunity to present our case to the jury. Because if anything it should have been a document equivalence issue whether our product which we our testimony was an angle bend and you know the reference of Mr. Laney to the document in the appendix was is a physician manual. You know it's not the engineers it's not lawyers. Test by just a physician manual refers to a six degree light of bend right below the passage he identified. But what we didn't get our day in court was the proper on what what the proper analysis should have been. It wasn't let on infringement because if you take the definition of Kurt whether with a dictionary which we would have accepted the regular dictionary meaning because it meant without any reliability. But then where became a problem was the court did not stop there the court then took it that means something it wasn't meant to me and something that's contributed by the fact. They include angles and so we did not get our day because it became an issue of literal infringement versus document equivalence. And if you go to the document equivalence then it's a question of fact then you bring in the issues of ways function result then you could look into whether broaching is significant or not. And then you will find as our experts testify that a shank with an angle bend it's a term of art in the industry is different. Our T2NL cannot be used with the broach we cannot accomplish any of those benefits and that should have been the proper analysis and that's where this K-aport went wrong. That's what the district court went wrong. It was changed from a case that might have been a doctor equivalence case to a literal infringement because they changed the meaning of Kurt. There's something that's not addiction air and something that's not supported by the spec and how do they do that they use the 20 drawings of makeshift products saying these will work they have an angle bend they'll work in a polished hole. And that was an extrinsic evidence which was improper and that's how this case got messed up and that's why we didn't get a fair deal. And as far as transfers. Mr. Volger you're out of time I think the argument is complete. I appreciate it. Thank you very much. Case is submitted.

Today we have four cases on the calendar. Two are already argued and two are getting an echo in here. Two are submitted on the record on the briefs. For the purposes of the tape, I will give the names of the two cases that are submitted on the briefs. The first one is 067198. The second is 07-3008. Bainey B. Justice. The first case for argument is 061260. Accumediate versus striker corporation. You reserved five minutes for rebuttal. I presume you are familiar with the lighting system. Thank you. I appreciate it. Thank you. May it please the court. The jury's infringement for extent from the district court's erroneous claim construction. There was a deeply flawed mark in theory and analysis. It started with addiction area and never properly analyzed intrinsic evidence. We got off track with extrinsic attorney drawings that were shown not for the purposes of what was at dispute or what the subject matter was, but for purposes of change in addiction area meaning that something it wasn't. The district court had two fundamental errors with its dictionary approach. The first one relates to curved shang. The court started up from the marine webstreet dictionary straight out to find the curr. The dictionary meaning was to have or to take a turn change or deviation from straight liner plane surface without sharp brakes or angularity. That was the dictionary meaning. We all know dictionary meaning doesn't really answer the entire question. Look, the intrinsic evidence. But where are the intrinsic evidence which you say supports your position? Let me back up. The dictionary meaning was changed from without sharp brakes or angularity to read as a judge. Change it to be without sharp corners or sharp angularity which changed a dictionary meaning from one that would be without angularity or to one that would have certain angles as long as they're not sharp. Now, sharp is a word that was never used and has never been used for these type of devices, probably that more from perceived. It doesn't exist. Sharp doesn't describe these type of products. Okay, just came out with dictionary. It's not used anywhere in the cat in itself. But your request for or your claim construction is, as I understand, an on angular continuous bend, correct? Yes. Well, we're as as Judge Garasa inquired a moment ago, where is the support for that construction and the intrinsic record? Okay, that is supported at column 3, lines 38 to 43, in which it mentions and it describes all of it. It's curved over a significant fraction of its length. But of course, if you look at figure 2 and the text that relates to figure 2, I guess figures 1 and 2, the text describes this embodiment anyway is having three straight portions, 14, 18 and 20 and an arqueot portion 16. So the shank 12, which consists of the arqueot portion 16 and 2 straight portions 18 and 20, is certainly not a continuous bend, because there are straight segments. That's correct, but the the definition of reproposals came out of the spec as far as when it talks about curve. Non-angle continuous bend over a significant portion of the length. We didn't say it had to be the entire length, it had to be a significant portion. What? Where in the spec is it saying not angular, though? In fact, you know, look, I think it's simple geometry. When a straight line meets a curve, there's an angle there, right? You have to go from a straight line to a curve. As Judge Lynn pointed out, the shank includes 16, 18 and 20. So a curved shank, which is only the curvature is 16, it meets the straight portion 18. By virtue of simple geometry, doesn't there need to be an angle where a curve meets a straight portion? I don't think I agree with that. There's just a continuous line and then the line starts to bend with the curvature. So I don't think there's an angle there. Well, let's look at figure two. Figure two shows a clear angle between the butt and the shank, for example. Doesn't it? I mean, how can you say that's continuous between the butt and the shank? The butt is straight. The shank begins to curve at the first tapered portion at the beginning of 16. Clearly, there's an angle there. In fact, they even show how the line would continue on if it were to go straight. And they show the curve to axis 22. So how is that not an angle between the butt and the tapered shank portion? It may have the claim to firmist curved shank. It's not the butt. Okay? You can confuse it. I think the butt and the curved shank is being one and the same. And that's not the curved position. The position is the claim line which talks about the shank has to be curved. And that's what I think you need to refer to, not the transition between the butt and the shank, because that's something that claims all about. So now when you look at the proper context, the curved shank, as required by the pattern, as we see it, is curved. You know, it makes your mean a curve. Where are you referring back to the curved shank in the claim language, an elongated body having a curved shank configured to occupy the upper portion? That's the curve that we believe was erroneously interrupted by the disc curved shank. What is meant by curved? That's what's before us. But where would the angle be? Why wouldn't there be an angle when the change is judged more points out from the shank to the lower portion of the nail? Well, I guess the answer to that is there's no testimony that's an angle. And I don't see it as an angle. We're talking about the curved portion. What is meant by the curved portion? And what is the definition of curved? Councilor, you said that the specification supports your non-angular continuous bend over a significant part of the leg. And I was hoping you were going to direct me to where you'd come up with the non-angular part. The non-angular, as we propose, relates to definition that curved is not included angles. It's that simple. The chord. Does the word bend bend or bend include angles? I don't think so. The curved. The word bend or bend does not include angles. Doesn't strike or refer to its own product. Is containing a bend? Strike refers to its product as having an angle bend. That's a little different terminology. The patented self refers to angle bends as being something that's curved. The patented self, this says I'm paraphrasing here, but basically it says angle bends are not good. But is there a full slew of prior art? I realize the strike or product is of course not prior art. And the strike or patent was ten years after the patented issue. So it too is not really prior art. But isn't there a whole slew of prior art that was cited in this prosecution history, the 507 patent, the 313 patent, the 296 patent, the 202 patent, all which appear to have angular designs and refer to those as bends. They don't say non-angular bends or angular bends or non-angular bends. They just call them bends. The calm bends possibly, but let's pack up a little bit. The patented self refers to angle bends as being something different than a curve. It just does. It's different. R-acuse product has an angle bend. No, no. What? Council, where does the patent refer to angle bends as being something different than curved? Yeah, it's called column 3 lines, sorry, line 45. Obduced with angle bends are smaller as curves relative to the object length. They do not pass through their own envelope or insertion. Okay, wait. No. So they don't say all angle bends. They say angled bends that do not pass through their own envelope for insertion. Because, I mean, certainly you would have to concede if the angle bend was a one-degree angle, it was a very short object. It could pass through its own envelope. Well, that's not so bad. I mean, one more nerve-wracking. It seems an obvious one. Well, now we're talking about potentially document equivalence forces literal. Now, let's back up here. There was no document equivalence analysis. The whole case related to literal infringement and what is meant by curved shank. Curve shank, the dictionary says without angle area, no angles. It was changed to be including some angles yet undefined with sharp hits, no one knows with sharp hits. And the only way they could find a little infringement is case of our angle bend was to change the meaning of curved shank to include an angle bend. And that's where we didn't get our getting cork, because this is not a little infringement case. A curve does not and cannot include an angle, cannot include an angle bend. And then, if you're getting into the document equivalence and what they didn't want to go to the document equivalence, they had problems. Because that's when you bring in, is it usable with a brooch? Or is this not? What was the patent trying to accomplish with the curve? And that's where this case got off its track, right there. And the second issue is transverse. The patent itself defines transverse. It used the word defines. And that's that column two lines 56-88. It says, further, figure two further illustrates a plurality of transverse holes, each of which is defined on a respective axis, intersecting the nail axis 22, and perpendicular to the portion of the nail axis at the moment portion. The drawing shell transverse holes being perpendicular, the spec defines it as being perpendicular. The courts interpretation basically read out the triangular transverse. The accused products had only two holes perpendicular. The claims required at base three, so there's no literal infringement, there's been no argument of document equivalence in the transcript. Mr. Bob Lee, you're well, and to your rebuttal time, do you want to save your rebuttal time? I will. Thank you. Mr. Laney? Good afternoon. Two judges may proceed. You may proceed. Thanks, Chris. I'm here with co-council, Paul Vickery, and Representative Kimit. I'd like to address, real quickly, Mr. Vogler made the assertion that they always describe the striker nails having an angled band. I'd like to draw the court's attention to the Pentax page A2009. If you look at A2009, in particular, the last two bullet points on the right side. If you look at the last two bullet points, the first one reads, the curvature of the nail allows insertion at the standard entry point, i.e. the lateral entry point just inside the greater tuberosity. Now, what's key about that is they're describing their nail as having a curvature. Now, let's juxtapose that as to how the patent used curve. And this illustrates that curve has an understood meaning. But if you go to page 648, Pentax 648, or if you have a patent, you go to column 4, line 23. The curve of the nail 10 permits its insertion through an aperture between the ball and the greater tubercle at the top of the humors. So both of these documents, both striker as well as the patent, describe this curve as permitting it to go through what striker calls a standard entry point. Moreover, as Judge Moore pointed out, they described their nail as having a 6 degree lateral bend. They don't say it's an angled bend, they say it's a 6 degree lateral bend. But I think what's key on the description of that, again turning to A2009, they say it's how they describe this bend. They describe the bend as allows insertion of the nail along an almost straight path. Well, that juxtapose perfectly with the way the 4 for 4 patent describes that the curve is able to follow its own envelope. Now, striker tries to argue that the nail of the 4 for 4 patent is limited to a shape that is able to pass through its own envelope. Well, how do we know that? Why do I say that? I say that because they say this thing has to exclude any and all amounts of angled bend and small radius curve. Well, we've asked our numerous times to define, well, what is it? And then, support to exclude something from the definition. What is the boundary that you're excluding? What are you excluding? They have never once been able to ask that question. So we turn to the specification. Well, what does it say an angled bend or a small radius curve is? It says that it's something that does not, if you have angled bend or a small radius curve, you do not pass through your own envelope. Now, what's key about this is that later it goes on and says, hey, wait a minute, the preferred embodiment does not pass through its own envelope curve. Which suggests that it has some angled bend or small radius curve. So it's clear from even the specification that excluding any and every amount of angled bend just isn't the proper construction. Moreover, including the limit of the curve. Well, count for a wait a minute. What about, I mean, small radius curve. It's still a curve and it doesn't pass through its own envelope because it's a small radius curve. So maybe curve should be construed like they say as excluding angles, but maybe that whether it passes through its own envelope is only relevant to the radius of the curve. I'm not sure I'm following the question. First off, you're trying to suggest that striker says they want this claim limited to something that passes through its own envelope, but I haven't seen them argue that. I don't think that when they argue the claim construction means a long narrow part of the mail having a significant, having a non angular continuous bend necessarily means that it necessarily has to pass through its own envelope. Well, they do say that it cannot have any amount of angled bend or small radius curve, but we don't know what that means except for what the specification tells us. Which it tells us if you have small radius curve or if you have angled bend, it does not pass through its own envelope. So you can't separate the two and there's never been any construction of what angled bend or small radius curve means. What are the boundaries of what it is you're going to exclude other than the specification stating that if you have it, you don't pass through your own envelope. Are you suggesting the claim is limited to something that does pass through its own envelope? I absolutely do not think it has to pass through its own envelope. In fact, if you look at dependent claim 13, dependent claim 13 specifically says claim one having a profile that substantially passes within its own envelope. Now, the doctrine of claim differentiation, although it is a presumption, it's not hard and fast rule. That in of itself, though, gives us a presumption that claim one is broader. Councillor, you have a stronger argument that you probably just haven't gotten to. I'm sure you were going to bring it up, but on column three, at lines 38, it says because the nail tend is, quote, gently curved. It is said to largely pass through its own envelope. Well, gently curved to me is a much narrower term than curved as used in claim one. And gently curved only largely passes through its own envelope. So then what does curved do? It might not pass through its own envelope at all, right? It's not required by the collection. Right. So it seems to me that claim one is not limited to something that passes through its own envelope, even substantially, not just because it claimed differentiation, but because of the definition in the specification. But again, I just don't see them making the argument that it is. And if I'm wrong, it explains to me how they are. Well, I don't know what the meaning of angle bend or small radius curve is. What does that mean? Is it, I mean, their argument is that their definition excludes any and all angle bend or small radius curve. And so I only submit, I think that they're getting that by trying to exclude any and all angle bend small radius curve. But they're getting it directly from the specification. I'll call them three lines, let's say, 44, objects with angled bends or small radius curves relative to the object length do not pass through their own envelope on insertion. Correct. So what does that mean? So it means something with an angle bend or small radius curve does not pass through its own envelope on insertion. But if you look at the preferred bottom and it describes even the preferred bottom at beginning on that same column line 51, it says even the preferred bottom that doesn't pass perfectly through its own envelope. And are not well suited for insertion into a broached hole, right? And that's the other key. The other key is they try to say this thing has to be able to be used with a broach that it's necessary part in order to find curve. It has to permit the nail to be used with a broach. And I think this file history is clear that the use of a broach is a distinctly separate invention than the nail itself. The nail is designed to secure fragments of the proximal humerus. The use of a broach was a method that is described in the specification, but the examiner said you have to make an election. The use of a broach is a distinctly separate invention. And that is that if you look at appendix 797 and 786. On 797 the examiner clearly states that group one is a human element is to the nail, the nail itself. And then client group three is a method for implanting the nail, namely using the broach. The examiner said these are two distinctly separate pick one. So the examiner did it, picked one, picked group one, the nail itself. And the district court recognized that. But they have to be used together? Absolutely not. And if they had elected to go with a method claim that use a broach they would have had to be used together. And yes, the broach may have had some may have impact on what type of nail and shape of nail you could use with a broach. But claim one's broader claim one doesn't have to be used with approach. Therefore it's broader. What other section of the specification supports the idea that it's broader than a broached hole because the only place I see anything other than using this an approached method is a column three lines 33 when they talk about a rotating drill bit or a reamer but they go on to say why those are no good because they cause tissue damage and another problem. So we're in the spec do we find support for the notion that this should be read more broadly like you're suggesting now. Well, first I would disagree that it says using rings and drills are no good in every case. It does say that the broach hole has its benefits. And that in some cases a drill and a ring would not be ideal. But to answer your question the entire spec talks about the nail in the context of using a broached hole. I think the broadening of it comes from the fact that claim 13 makes it clear that the curve of claim one does not have to pass through its own envelope. Moreover, I think the fact that this cortaline of cases and e-pass and go light as well as the most recent ventana versus medical systems this court made it clear that a specification can close with multiple inventions. And the claim doesn't have to encompass every feature every benefit that's described. And I think this is exactly that type of case. But if it can't be used without the broach hole, right? Oh, it can be used by the broach. How is it? How is the whole made for insertion of the nail? With an all. It's called an all which is. It takes a mirror. It's a medieval looking thing that cuts it into the bone. And then I sometimes I think you still use a reamer or drill but that's acumen supplies that with this patented device. Supplies that and surgeons have the option that can use a broach or they could use a drill or reamer. And then they just insert it into the greater, right on the other side of the greater table. With and without the broach. Usually without the broach from the testimony provided. In fact, our own expert testified he's only used the broach once and that was the very first time to create the video showing that the use of a broach. Every other hundred or so times he never used actually a broach. So the broach isn't critical to inserting this nail in order to perform its stated function which is to secure the fragments of the proximal humorous to the foundation which is the nail itself. I'd also like to address the issue of transverse holes. In particular, the suggestion that transverse holes is necessarily defined as perpendicular. There are several arguments against this and I think probably the most convincing one is the fact that the patent D knew how to say perpendicular. He didn't say perpendicular and the can't claims. He said transverse. And by transverse transverse has a broader meaning. It means across. Now, how do we know that he meant the broader meaning? Is there anything in the specification that tells us and the answer is absolutely. If you look at column two, line one, it says, a red line 45, the butt portion has transverse holes oriented at select angles to receive fasteners attachments to the... I'm not with you, but you got to remind me again where you are. I'm sorry, column one, or line 45. Okay. And you see where it says the butt portion has transverse holes oriented at selected angles to receive fasteners attached to the fragments. It says the same thing in the abstract. Now, what's key about that is that indication right there. It's talking broadly. It's saying selected. It's saying user can designate this. So, when you talk about perpendicular, you're talking to the nail axis at the butt portion. Because clearly, if we look at figure two, or figure one, either one, you do see that the holes are at different angles, like different places in the butt, but with regard to the axis, they're all perpendicular. So, I don't necessarily see column one, lines 45, suggesting that transverse holes means broader than perpendicular with regard to the nail axis. It all depends on where you're going to measure the angle from, right? I mean, so certainly they're going in at different angles. You've got a cylinder and they're going in at all different angles, but they're always perpendicular to the nail axis, the butt. The preferred embodiment is correct that they're always perpendicular. But the question is, are they limited to perpendicular? Is there any disclosure that says that indicates that when you use transverse and when you describe the invention that it's limited to having an axis that's perpendicular to that? And I think the answer is no. By talking abroad, turns by saying you can select the angle. But the angle that you're selecting is not the angle relevant to the nail axis. I completely disagree, Judge. When it says selected angles of the transverse holes, it's saying the angles of the holes relative to each other, namely the hole axes, the axes of the hole. That's different from the axis of the butt. We're not sure of the axis of the hole. We're defining transverse hole, but transverse hole in relation to what? Transverse in relation to what? Transverse in relation to the butt portion. Correct. And it can be in our position as it's across the butt portion. Mr. Laney, before you finish, and I know you're almost at a time, even if we were to affirm the claim construction and affirm on the merits, the district judge here graded the permanent injunction with the following statement. The general rule is that the injunction will issue once infringement and validity have been a judged up in light of eBay. We require to at least fake hate and remand that back for a determination of the of the customary permanent injunction factors. I don't want to see that amount of time if I'm answered the question. We don't agree that you necessarily required to send it back because this court views judgments and other opinions. And I think the court made ample factual support that would support even under the fact that the factors, irreparable harm, inakward remedy, monetarily, balance of harms, and as well as the need for the device. I think the court made sufficient factual findings that would let this court uphold the judgment in particular she found that this was the world's largest orthopedic company that set out to deliberately copy and drive our company out of the market. And by taking away 75% of the market share. I think patent law if it does anything at least it gives you a right to control who you're going to compete against. And while they've licensed it to other people surely they have the right to tell one company that they know their intent is to drive them out of the market to say you're not, I'm not going to compete against you. You're not allowed to practice my device. What the district court's consideration of those factors is once in the context of the request for a stay and not necessarily as a review of the propriety of the injunction itself. And Judge, I agree with that completely. And to the extent that Judge would like the court to do with the first instance use her own discretion. I would agree the appropriate action would be to vacate and have her do that. However, I would only say that the fact she did find what support the judgment she reached. Thank you. I'm out of here. Thank you, Mr. Lenny. Mr. Bogo you have four minutes. Thank you. On the current shape the issue is whether the district court air is a matter of law. And the analysis was taken in dictionary one that included without angularity to now include in that included some form of angles which is contradicted by the dictionary and also contradicted by the spec which says angle bends and not appropriate. The striker also proposed a second component to that and that was claim disavow. And that's what we added the language is should be used with a broach and angle bends and the claim is not restricted to a broach. I mean you say more than not. Again, there's two components to the claim destruction. One was made by Kurt Schenk. The second one is whether it was called disavow based on statements in the spec that the use of the broaches important is one of the features of the invention. And Schenk's with angle bends or smaller raised curves are things that you stay working for the reasons they said to not have tissue damage and things like that. And the district court rejected that so there's two components to it. But the error that we are submitting was the definition of Kurt which did not give us a fair opportunity to present our case to the jury. Because if anything it should have been a document equivalence issue whether our product which we our testimony was an angle bend and you know the reference of Mr. Laney to the document in the appendix was is a physician manual. You know it's not the engineers it's not lawyers. Test by just a physician manual refers to a six degree light of bend right below the passage he identified. But what we didn't get our day in court was the proper on what what the proper analysis should have been. It wasn't let on infringement because if you take the definition of Kurt whether with a dictionary which we would have accepted the regular dictionary meaning because it meant without any reliability. But then where became a problem was the court did not stop there the court then took it that means something it wasn't meant to me and something that's contributed by the fact. They include angles and so we did not get our day because it became an issue of literal infringement versus document equivalence. And if you go to the document equivalence then it's a question of fact then you bring in the issues of ways function result then you could look into whether broaching is significant or not. And then you will find as our experts testify that a shank with an angle bend it's a term of art in the industry is different. Our T2NL cannot be used with the broach we cannot accomplish any of those benefits and that should have been the proper analysis and that's where this K-aport went wrong. That's what the district court went wrong. It was changed from a case that might have been a doctor equivalence case to a literal infringement because they changed the meaning of Kurt. There's something that's not addiction air and something that's not supported by the spec and how do they do that they use the 20 drawings of makeshift products saying these will work they have an angle bend they'll work in a polished hole. And that was an extrinsic evidence which was improper and that's how this case got messed up and that's why we didn't get a fair deal. And as far as transfers. Mr. Volger you're out of time I think the argument is complete. I appreciate it. Thank you very much. Case is submitted