Legal Case Summary

So there you can see that after the first few hours of the day, you have a mental health in mind. That's what you want to do. You want to keep doing this. You can't make any sense that you're doing this. You can't do anything. You want to know what you're doing. You want to know what you're doing. You want to know what you're doing. Okay. Okay. Today is Wednesday, October 4th, 2006. We're in the Howard T. Markie National Courts Building. At 717 Madison, Place Northwest, Washington DC. We're preparing to have a world audience this morning at 10 o'clock in both courtrooms. 201 and 203. Anything else that you would like to do? Please, to welcome a visiting judge, the Honourable Patty B. Seris, from the United States District Court of the District of Massachusetts. Judge Seris is an experienced district judge who has taken an interest in our court's work and we were delighted when she accepted our invitation to sit with us. And we look forward to sitting with her not only today and tomorrow. But in the future, as often as she's willing to volunteer. The calendar day has four argued cases. For the benefit of counsel, I assure you that we have read your briefs and we have an understanding of the arguments. And you shouldn't waste your time on receptations of the facts or the procedural background of the case. Get right to the arguments that you want to impress upon us today. Very well with that said, we'll have argument first to number 05, 1434 Anderson against fiber composites. And first up, then, is Mr

. Schultz. Thank you, Your Honor. May it be for the Whitney Adams, the old lady in the bedroom, and the course of 100 degrees? Fiber composites and Anderson, do agree about one thing. And that's the District Court of the Clinton Instruction Act, and I'd like to talk about the act of the District Court of the Act. Right. And that's on what have been referred to in the papers as the group two patents or the structural member patents. And if you just go through a standard analysis, you're going to come out exactly correct, exactly, and the District Court did. There's not been complicated about the claims of the two patents, the same amount of patents. A claim one of the old two, seven patents is an example. It says that it covers a wood thermal plastic polymer composites, structural metal, and that certain characteristics of that that are recited in the claim. And if you then move next from the claim language of the claim, look at the specification. It's very clearly, right at the beginning, it says the invention relates to your crew structural member. And in fact, structural member is even defined in columns three of the old two, seven patents, which you can find in the appendix, it takes 135. It gives a meaning. It says the term structural member. For purposes of this application means a linear member with a beginner cross section code complex. Cross section. Again, there's nothing particularly surprising about what the District Court did in this case, the District Court came to the right conclusion in the Biden Composites, however, with asked this Court to impose what the Nessons would be a process limitation or a form limitation and say that it's limited to a talent or a process to have talent. Let me ask you about the prosecution history. I assume you were going to get there next, but let's go directly to it. And in particular, the remarks regarding the Mianni composite at A4116 to 4117, you're familiar with that passage. And in particular, the language in contrast, and this is in contrast to statements made about Mianni, the presently claimed composite is prepared by mixing the melted polymer and wood pulp forming pelletized material cooled and then extruded. This is to distinguish from Mianni in which the statement was made at 4117 that the composite is directly extruded and kept hot during the entire operation. Why isn't that disclaimer? I'm glad you asked that, Judge. And to begin with, we need to go back to paintings. And we need to go to the appendix that paid 4150

. And keep in mind that this was the first response to the first office action on the parent application. And the applicant was confronted with rejections over several pieces of art, including the Mianni. And the applicant said, and this is at the bottom of A4115. I quote, applicants respectfully disagree and have indicated in specification that prior to the President's invention, previous polyfinal thermoplastic materials combined with wood products have not resulted in a sufficient young's modulus as claimed in the composite herein, some sites. This is made clearer by applicants claims now-o-ment, which point to an important element of the President's invention, which is the size of the wood fiber, used in the composite having such a large model. So we have that language. Then there's some discussion that's not particularly relevant. And then we have the statement that you refer to Judge Bryson about the extrusion process. But you then need to go on and look at what, in fact, the amended claims were, and it added an aspect ratio limitation to the claim. So the whole, the whole tenor here is this invention has to deal with certain characteristics not otherwise found in the prior art. And it really has nothing to do with how you get there. So we step that and we look at the claim language again. And it talks about a composite structural memory of that. So when you say it doesn't have anything to do with how you get there, it seems to me that the language I just read says exactly the opposite of that, and says that it has everything to do with how you get there, at least the distinction from the any has everything to do with how you get there. I mean, it certainly is the case that you could have a composition claim, which you could say is ought to be construed to be limited to compositions which are made in a certain way. I mean, that would be a disclaimer of compositions made in any other way, I think you'd agree with that. If we look at the law of this court on this claim, where this claim language has to be cleared on empty. And if we look at the Phillips case, which says, you know, look at the plain language, and it's back and then you have to look with a little bit of a, you know, with the great assault, so to speak, on the prosecution history. And this is the only statement in the prosecution history of the 027-523-PAN, even though there were a couple of continuation applications and a lot of other prosecution issues. So I think point to, it's not a clear disclaimer. And what's really important here is what comes out of the extruder. But if you put that together with the specification, the number of statements saying the invention is in refers to the palette of the linear extruder. I mean, isn't, if you put the whole picture together, both the specification and the prosecution history, doesn't it look like a disclaimer? If you look at the differs between the group one and the... I'm referring to group one

. Okay. And of course, we were talking about group two. Let me see if I understand it because I had the same question. Yes. You started off, I think, saying you were going to go directly to group two. Yes. So you're skipping over for now, group one. Do I understand that correctly? Yes. Because I interpreted your... Mionius... Mionius group took. Yes. Okay. And so... Okay. So we're... From now, we're not getting into the group one, patents is a disclaimer issue that we're talking.

.. We're talking group. Okay. Two. So, still we're talking about structural amendments. I was a little embarrassed. I understand. But in response to Judge Saras' question, I wanted to just contrast the difference in the specification because there are some substantial differences in the specifications between the composite composition patents and the structural member patents. If you look again at the expected structural member patents, it's very clear that we're covering the structural amendments. That we're covering the end product that comes out of the extruder, it says right in the beginning. There really no playing here that we're covering some intermediate or that some process comes into play here. Because it's clearly covering the end product. In my opinion, I think the specification is very clear here. I'll have to, you know, concede that there are... When you're looking at the group, two patents, there are some different issues with respect to the specification. Now you mean group one. I jumped too quickly to group one, but that's where you seem to have such a problem. Well, I'm more than happy to go there now, like satisfied everybody's... Before you get there, could you tell me just as a practical matter, why does the group one... You start your appeal with group one

. Why does it matter in terms of just on the street consequences? Is it because you want to get it back into the willfulness or is there a collateral, a stop-well issue lurking here? Because it looks to me like you're not apt to get any more money out of the case, at least on the straight infringement. Because these groups of patents seem to be co-terminous in their scope. That's an excellent question. Your Honor, on the street in a competitive environment, we would like those patents back to cover what final composes did and what others may be thinking about doing. We would like the anti-initian and highly competitive environment of having six patents instead of two. But is that just because there's different coverage or simply because six of anything is better than two of anything, unless all of them are bad? Well, at some level, the environment in which all our clients operate six is better than two. Okay, so that's what we're here laboring over is the proposition that takes us back to... I think we're laboring over several things, Your Honor. Primarily, and that's why I led the argument of law. The group, two patents, the structural member patents, the court got it right and they're infringed. What's interesting about the group, one patents and the court's claim construction there, is the denial of summary judgment. On their use, by the composites, use other intermediates. If you go back and you look at the court's claim construction and the summary judgment, the court basically said that the composite composition claim, because of the things that the service pointed out, it covers a patent or a linear extreme. They basically are intermediate, not the final product and the court held the group. Two patents clearly cover a final product, doesn't matter about the underneath, which is correct. However, and this is why we've asked you in essence, even if you adopt the district court's claim construction on the group, one patents descended back. The issue that summary judgment was entered against us on what's called the repro, because what they do, as we know from looking at materials, is they have rejected railing parts at our student and then they chalk them up and they then feed them back into an extruder. So they, in fact, are, it's not just the power and wood buying, they put in a extruder, they put power and wood buy them and they also toss in this, what I'll call, and even their experts admitted that it's a linear extreme, so if you paint the claim construction of the group, one patents, why isn't it an on show pointing opposite paints 43 and the court is seeing this, this is the chopped up repro that the court held did not infringe as a matter of summary judgment. Is that a blow-up photograph by the way or is it, it's in by-ring process brief and I thought there was a copy in both briefs. Well, maybe there is. One of the responses was that you didn't put in a case that each one, the thought that was a little, what would you call them, the repro, met all the limitations of the claim. Well, that's not right. If you look at the report of our expert, Robert Lutinan, and we cite at the appendix, and I'll give that to you for a second. In the appendix at pages A1140 through 73, we have not all, but a good part of this actually report, and he accimes that the repotent in fact infringes, and here's his analysis, summed up in a nutshell, which is, you have a product that comes out of the extruder that's defective for some, maybe warped for something like that

. That product has been samples of that type of product that have been tested, and meet the claim limitations. It's chopped up, and it's better that even extruder. So, it in fact, through what is, you know, very easy circumstances, evidence in fact infringes. But the core of the way it even gets to present that to you. Your yellow light is on, however, I expect that, including the complexity of this case and the number of issues that will go over. So, I don't think you should worry unduly or rush yourself as you go into the other issues that you'd like to address. At some point, we will have to move on, but that we would like to give you an opportunity, and Mr. Skinny, an equal opportunity to address some of the issues beyond this. But having said that, let me bring you back one more time, if I could, to Mianny. Because this was something that looked constipation. Could I just stay on the point that he had to be here? Of course, just on the point that you made, I just go back to Judge Bryson's earlier question about what the real dispute is here and what the ramifications are, what we do. Even if we agreed with you on the repro, on the issue you're just talking about, does that have any consequence in terms of additional money? We're still left or we're not with the sum awarded on the group 2PAT. I'm not sure because I haven't gone back and looked at the time period over which they might have been using the repro. It might cover a different time. I just don't know what you're saying. Also, on Mianny, I took your answer and I was trying to sort out whether you were saying either A, that there's a lot of material going the other way. And therefore, regardless of the actual statement made by the prosecuting attorney with regard to Mianny, that statement is sort of overwhelmed by contrary evidence as to the scope of the patent and should be disregarded, even if it would in isolation be treated as a clear disclaimer. Or B, that there is an explanation for that statement that is consistent with a reading of the patent that is as broad as you submitted should be read. Well, it certainly be in the sense that what's the explanation then for the statement the presently claimed composite is prepared by mixing the melted polymer and wood pulp forming pelletized material? Because that sounds to me. If you take that sentence, this is B now. If you take that sentence, it looks to me as if that's saying that composite equals pelletized. You need to take that in the context of not even several office actions later, but in the same office action response that said, look, we are confronted with Mianny and his other references. And here's the problem with those other references. And this is with respect to Mianny as well. It's, look at our modulus, look at the fact that we're thermoplastic and not a thermoselling material. And we're going to make an amendment that's going to be confronted with this prior art and we're going to add aspect ratio

. That's what we're going to add. And we're covering a final product. When you get to this pelletizing issue, it can work with step back, especially with regard to the structural member pattern. And keep in mind that we don't care what goes into the extrovert. In fact, in the 3, 3, 4 pattern, you know, there's a statement made on page 18 of the red brick that says, and I'm bored. You know, you know where in the specification of any of the six patterns, is there any mention of making a structural part without a critical problem? Well, the 3, 3, 4 pattern in the first column says, you can direct extrude. Now, even though that's in the group, one pattern is important to, I think, one important fact to keep in mind. But going back to the group two patterns in the army, that they, the pelletizing, even if what the army in fact did, and even if our preferred input into the extruder is a pallet. And it says that that's our preferred input into the extruder. When I'm talking about a process, a method, or what goes into the extruder, we'll talk about what comes out of the extruder. It clearly says a structural member. It's what comes out at the end. Well, but the sentence, again, bringing you back to that sentence, and this is B, does, can you read that sentence in a way that's consistent with your claim construction, is about how it's prepared. It uses the word is prepared by mixing. That, that's what you're saying, or the prosecuting attorney is saying, is our invention. So in terms of just looking, setting aside contact, is there an explanation for that sentence that is an innocent explanation, the sense that it's consistent with the construction that you're urging for the group to pass? I think there are a couple of explanations for that, you know. One, there's no evidence in the patent office never said or conceded that Miyami had the characteristics that were claimed. It's a toxic matter of the case characteristics. And in planning to polyion, made it, but that doesn't matter. Does it? I mean, our law, it seems to me, says the following thing. You tell me if this is not a fair characterization. You have a patent application to a shoe, and you are confronted with a prior art and the examiner, well, never mind what the examiner. Examiner, the prior art to you and says reject. And you say, well, you can't reject on the base of that prior art because that prior art has leather soles. Our shoe has rubber soles. Once you say that doesn't matter whether the prior art has leather soles or not, what matters is you said what your invention is

. And the question is, is this a characterization of your invention? It is not a characterization of our invention that should be deemed a disclinator, especially if you look at the very first thing we said about this prior art in the page 8 4-115. It says we disagreed and have indicated a specification that prior to our invention, previous PVC materials and wood did not have sufficient modules. And then we go on to amend in light of that art by adding not some process limitation, not a form limitation, not an intermediate limitation, but a structural limitation of the size of the wood fiber. That's what we do in response to this art. That's how we view the art and how we view our as being different. Now, would you are there other issues that, if you have a chance to address the e-dress because we will give you a little extra time if you're... I guess I'd like to reserve it for a rebuttal. I will give you a rebuttal. I'm actually inviting you to... if there's another issue. There it is. I'd like to talk about the anticipation issue briefly in this case, the anticipation issue involved in modern plastics, the article, and the issue there, a couple of different issues there. Number one, they claim that modern plastic art is... That's actually... I guess that's a cross-apieu issue, right? Yeah, why don't you wait on that? Let me ask you one quick question about the injunction question. Yes, and that is with respect to the courts and I live here in injunction, why don't you have an adequate remedy in law? If we have to..

. the benefit of the injunction, of course, is that if they start manufacturing a lot of the game, that we have the benefit of the budget town here, as opposed to having to go in and file a little bit. And this is something that they haven't done, that they stopped doing six years ago? They stopped doing, and there's some indication in the record that we had thought that they were back in the clean range, and they're kind of right in the action. So they decide that they for either financial benefit, because we think from an economic perspective, wood's a lot cheaper than PVC, and so they reduced their wood content below 30%, but at some point the economics of PVC, especially the petroleum-based product, maybe such that it's handy to throw another 5% wood, which comes right back into our claims. You know, you brief this before the eBay case, so do you think that, in any way, changes things that looked as if the judge did not look at four factors, although very short-hand. Well, that's an interesting point, Your Honor. The judge did, everybody briefed in post-trial before fact in text, and so it covers what, I don't think he may really have an impact on that, but the judge just kind of blew off the analysis, and said, I really just don't think that the judge is talking here, does not really really give him an analysis to your work. But that's an interesting question. I mean, in eBay, they dealt with the factors you have to consider in terms of issuing an injunction, but here the court decided to deny the injunction. Does the court have to analyze all four factors in terms of denying it? I mean, if the court finds one of those factors is deficient, why does the court have to reach the other factors in the context of a denial, not a grantee? That's probably a fair comment. I'm not sure if you look at the record that the court analyzed really any factors, she just kind of blew off the whole idea of the injunction. But you mentioned the, I'm sorry, no question. You mentioned the contempt versus new action, which of course is a concern I know, is it's an enemy, it's a lot of these disputes, but isn't that present in every injunction case, in every case in which injunction is denied? You have that argument for why an injunction should have been granted. If that were so, then we would have gotten eBay right. I'm keenly aware that we've been told that we didn't. I actually think that that honest facts you've probably got to be right. Well, you've been lying people at least disagree with you. In any event, I think that if you look at the factors here, this is a situation where we are in fact operating under our band. We may not be making debt ratings, but we're making a lot of product under our band. We've licensed somebody else in the same pair. It treks under us. And I think it's important because we are practicing a band that we've got a licensee out there, which by licensing these bands to the same area. That we have the benefit of the injunctions and we can really content well with the combat in this case. Very well. We'll reserve your full rebuttal time and you can address at that time any of the cross appeal issues that may arise. Great. Thank you

. Thank you. Mr. Skinny. Now, could you, Mr. Schwarzwar, could you add the similar amount of time to Mr. Skinny's time? I think it's what was it about? Next, you have eight minutes or so, it wasn't. Very well. Thank you. On that case, the court, thank you. I can deal with that key playing misgonsum issue, the point of view of both patents and those groups of patents, and together. Because the thing that is that these patents came out of the same research product, the same invention, through them. And what Henderson has proposed here for essentially both groups is what they call playing meaning. And essentially, the only thing playing about the meaning they propose is, number one, it wasn't what they invented. It's displained in the specifications of both groups and it was displained in prostitution. What they invented, as is clear from what the inventor's testimony was, at the trial, was that they got a power and wood extrusion that had better strength properties and thermal expansion properties than the pry-walk could get. And they put those values in most of the claims, those modulus value and the thermal expansion value. As a minimum young spot modulus value in most of the claims is a maximum expansion, real expansion in most of the claims. And both sets of patents make it clear that they had only one way to get that. And it was a direct result of the process they used. And that was the pelletizing process where they do a two-step operation. First, they prepare the pellets. And actually, what happens is they say, in their patents, that you prepare the pellets, you orient the fibers, you orient the fibers in the pellets, you control the moisture of the pellets, and then you cut the pellets from the linear extrude rate that comes out of the dock. And later on, what you do is you take those pellets, or the linear solid linear extrude rate, and you dump them in another hopper, and you extrude the actual structural amount. Is there any distinction between, for purposes of the process of obtaining the advantages of the patent, between pelletizing and simply linear extrusion before the chopping into the house? There is a variety that's indicated in patents, and it would seem to me that probably just deals with ease of handle. Okay. That's a reason you're ahead of the water. One of the issues. One of the problems that I encountered in thinking about the case is that you refer in a short-hand fashion to pelletizing, and you point to various places when pelletizing is emphasized. And what became a little unclear to me is whether you met every time you referred to pelletizing to include linear extrusion as the term is used in the process. Yes, because it's a practical matter, the only difference in the process is chop chop chop. It is chopping up what comes out of the dock. And if you want to use that... Then that makes the references to pelletization a little less crisp, of course, because when in the prosecution history and so forth, it is said, well, the key to our invention is pelletization, then you're really saying, well, they don't really quite mean that. They mean linear extrusion, which is sometimes results in pellets, right? Is that a fair characterization? I think it part after judgment. What is...what I'm quarreled with is that. When we were dealing, particularly in a group one pattern, for example, when you're dealing with just the composition, you have claims that individual patterns directed to pellets, independent patterns are equal to pellets, linear extrusion, and then the composite material. This is... When they address that pelletizing comments, it may pelletize the comments in that original set of prosecution history, they always refer to that globally. When they were talking about pelletizing, it was global. It referred to all three groups of poems. They never made a distinction between how they're using pelletizing in that prosecution history, and between pellets, linear extrusion, and composite material in the plot. That's how the group won. All the group won, yes, you're right. So when we were arguing pelletizing here in the prosecution, you won, that's what they were arguing. They were not applying it all, because that's what they were all

. One of the issues. One of the problems that I encountered in thinking about the case is that you refer in a short-hand fashion to pelletizing, and you point to various places when pelletizing is emphasized. And what became a little unclear to me is whether you met every time you referred to pelletizing to include linear extrusion as the term is used in the process. Yes, because it's a practical matter, the only difference in the process is chop chop chop. It is chopping up what comes out of the dock. And if you want to use that... Then that makes the references to pelletization a little less crisp, of course, because when in the prosecution history and so forth, it is said, well, the key to our invention is pelletization, then you're really saying, well, they don't really quite mean that. They mean linear extrusion, which is sometimes results in pellets, right? Is that a fair characterization? I think it part after judgment. What is...what I'm quarreled with is that. When we were dealing, particularly in a group one pattern, for example, when you're dealing with just the composition, you have claims that individual patterns directed to pellets, independent patterns are equal to pellets, linear extrusion, and then the composite material. This is... When they address that pelletizing comments, it may pelletize the comments in that original set of prosecution history, they always refer to that globally. When they were talking about pelletizing, it was global. It referred to all three groups of poems. They never made a distinction between how they're using pelletizing in that prosecution history, and between pellets, linear extrusion, and composite material in the plot. That's how the group won. All the group won, yes, you're right. So when we were arguing pelletizing here in the prosecution, you won, that's what they were arguing. They were not applying it all, because that's what they were all. That's the only way that they could get those approved measurements that they rely on here, and Mr. Schooz referred to as being the stations over the prior law. Well, maybe your response was... I had to address the problem that I was having, but just to make sure, let me ask the question a different way. When you recite a statement made in the prior... This actually was in the prosecution history and response to prior art, the recited invention is a resonant fiber composite thermoplastic pellet. Yes. You do not intend by that reference to argue that it excludes linear extrude, as I understand it. That's cool. So the word pellet, we already know, doesn't quite mean in that context pellet and pellet alone. So we've already brought in the word a little bit, and my question is, isn't that word then being used in less than a very precise restrictive fashion in the prosecution history? You understand my question? Yes, I do. That's true. Yes, it's an extensive question. I think it's a question that I've been asked about in a certain way and chopped it up in a certain way. In other words, can that be regarded as kind of a shorthand for the various forms in which this substance can be presented? The only sustainable commonality between linear extrude and pellet is it solid. What is different between what the accusing of infringement here, at least initially, in the case was, the fact that we were dumping our composition is powdery, polyvinyl, fallen, and so on, especially. It's not a solid form. And so what they did in prosecution was each time, and it's repeated throughout that rhythmical prosecution, each time that they confronted with any type of rejection of it, they came back to, it's the pellet. That's consistent with the specification, which says, in the root ones, it makes it absolutely clear, in order to get a structural part here, good structural part, palatizing is required, and I think in that sense, with palatizing, that's in the summary of the invention section. And the summary of the invention section is saying, it's required to use palatization, and that means in terms of the linear extrude, it could be used. And that's all good one. That's all good one

. That's the only way that they could get those approved measurements that they rely on here, and Mr. Schooz referred to as being the stations over the prior law. Well, maybe your response was... I had to address the problem that I was having, but just to make sure, let me ask the question a different way. When you recite a statement made in the prior... This actually was in the prosecution history and response to prior art, the recited invention is a resonant fiber composite thermoplastic pellet. Yes. You do not intend by that reference to argue that it excludes linear extrude, as I understand it. That's cool. So the word pellet, we already know, doesn't quite mean in that context pellet and pellet alone. So we've already brought in the word a little bit, and my question is, isn't that word then being used in less than a very precise restrictive fashion in the prosecution history? You understand my question? Yes, I do. That's true. Yes, it's an extensive question. I think it's a question that I've been asked about in a certain way and chopped it up in a certain way. In other words, can that be regarded as kind of a shorthand for the various forms in which this substance can be presented? The only sustainable commonality between linear extrude and pellet is it solid. What is different between what the accusing of infringement here, at least initially, in the case was, the fact that we were dumping our composition is powdery, polyvinyl, fallen, and so on, especially. It's not a solid form. And so what they did in prosecution was each time, and it's repeated throughout that rhythmical prosecution, each time that they confronted with any type of rejection of it, they came back to, it's the pellet. That's consistent with the specification, which says, in the root ones, it makes it absolutely clear, in order to get a structural part here, good structural part, palatizing is required, and I think in that sense, with palatizing, that's in the summary of the invention section. And the summary of the invention section is saying, it's required to use palatization, and that means in terms of the linear extrude, it could be used. And that's all good one. That's all good one. So, when we have it with that is, and what the root one claims is, to make it clear, actually, that they're talking about the composite point, as also being a solid, and district courts construction about the pellets or linear extrude is, is that in the root one claims, in a lot of them, for the composite, they put it in the wrong, this margin is for the composite, and that's really done, we measure this solid. The patents themselves refer to the ASTM test, which is a test on a solid pot. It's a potential margin, it's a test on a particular single-hand destruction. Now, you've, understandably, I think Mr. Schutz talked initially of group two, and you've talked largely about group one. Why don't we focus on group two, to the exclusion of group one, and I had an exchange with Mr. Schutz about me and he, and I understand your argument about that. I am less certain about how far you go with the specification. I see that you do cite, well, in the 553, you cite column 10, lines 30 through, looks like 48. But that doesn't seem to me to have the kind of force that some of the group one statement, both in the specification and in the prosecution history, what's your strongest, is that the strongest piece of ammunition you have from the specification of group two? I think there are two types of information. And I think one of the things in specification is, at the beginning of the summary, the dimensions that extraction, we've heard talks about how to obtain this, this is the we have found that the successful manufacturing physical properties passage. Yes, requires the internet, instead of saying that's 553, the A148, 553, column two at the bottom. That sounds correct. I think that's the same answer. It shows up in the other pattern too. It was a similar one, the two two separate lines. The same language. Yes, that's right. When it says here, it talks about in terms of that, that what's required to get this composite structural piece that can replace wood, it requires internet mixing, internet content, between the polymetric material and the fire. But there's no reference in that passage as far as I could see to the polarization just mixing. Just mixing. So if you can mix without politicizing, I mean, I know your position is that nobody told us how to do that. But at least for purposes of clean construction, this does not seem to confine the invention to politicization. It might itself perhaps not. The specification, now we know from the summary here that this mixing is absolutely critical. The mixing step is absolutely critical to obtain these results

. So, when we have it with that is, and what the root one claims is, to make it clear, actually, that they're talking about the composite point, as also being a solid, and district courts construction about the pellets or linear extrude is, is that in the root one claims, in a lot of them, for the composite, they put it in the wrong, this margin is for the composite, and that's really done, we measure this solid. The patents themselves refer to the ASTM test, which is a test on a solid pot. It's a potential margin, it's a test on a particular single-hand destruction. Now, you've, understandably, I think Mr. Schutz talked initially of group two, and you've talked largely about group one. Why don't we focus on group two, to the exclusion of group one, and I had an exchange with Mr. Schutz about me and he, and I understand your argument about that. I am less certain about how far you go with the specification. I see that you do cite, well, in the 553, you cite column 10, lines 30 through, looks like 48. But that doesn't seem to me to have the kind of force that some of the group one statement, both in the specification and in the prosecution history, what's your strongest, is that the strongest piece of ammunition you have from the specification of group two? I think there are two types of information. And I think one of the things in specification is, at the beginning of the summary, the dimensions that extraction, we've heard talks about how to obtain this, this is the we have found that the successful manufacturing physical properties passage. Yes, requires the internet, instead of saying that's 553, the A148, 553, column two at the bottom. That sounds correct. I think that's the same answer. It shows up in the other pattern too. It was a similar one, the two two separate lines. The same language. Yes, that's right. When it says here, it talks about in terms of that, that what's required to get this composite structural piece that can replace wood, it requires internet mixing, internet content, between the polymetric material and the fire. But there's no reference in that passage as far as I could see to the polarization just mixing. Just mixing. So if you can mix without politicizing, I mean, I know your position is that nobody told us how to do that. But at least for purposes of clean construction, this does not seem to confine the invention to politicization. It might itself perhaps not. The specification, now we know from the summary here that this mixing is absolutely critical. The mixing step is absolutely critical to obtain these results. And that's consistent with the group one that claims to obtain the young's modulus results they're talking about, just to take that as an example. Because that's in most of the points. In all the claims certainly to be to better or serve the listeners. They had to do this mixing of the polymer and the wood fiber as it's described here, internet mixing. But it's not a method claim. So there are other pieces of this specification that make it look as if it's a replacement for, for example, wooden structural members. So it's a lot tougher for you through the specification here. For the specification, but then tied in with the prosecution, I would do that in a second. But if you think of the specification a little bit more exhausted. Yes. It's a tougher case for you. By itself, yes, because they don't make the statement in that summary that they're talking about politic. But remembering this is still on the same inventive concept, the same invention we're by. In this case, the only evidence that exists along the trial that's in any of the briefs that allowed them to make these young modulus values of this ultimate part was by palatizing first. That's a mission by Mary and matter a trial. It's consistent with the one point point. It's consistent with root two. The reason it's consistent with root two is because if internet mixing is so critical to that part, what did they describe as the method for doing it in the root two patterns? They describe only one thing. And that's that same palatization method. That's the only thing they describe. And then at the end, which is the portion of a specification, you refer to, which I think is a 10 of the tributes in the root two patterns. It attributes these improved measurements to improve the young's modulus measurements to the palat of the process here. So what we have here is then telling you in the summary of the invention, in order to get the proper structural part, which nobody in the heart could do before using a polymer and wood fiber extrusion, they couldn't do it. However they were extruding it. We say this intimate mixing will be arranged with fibers, and the long anthem and the children moisture. That's critical to this to getting these improved results

. And that's consistent with the group one that claims to obtain the young's modulus results they're talking about, just to take that as an example. Because that's in most of the points. In all the claims certainly to be to better or serve the listeners. They had to do this mixing of the polymer and the wood fiber as it's described here, internet mixing. But it's not a method claim. So there are other pieces of this specification that make it look as if it's a replacement for, for example, wooden structural members. So it's a lot tougher for you through the specification here. For the specification, but then tied in with the prosecution, I would do that in a second. But if you think of the specification a little bit more exhausted. Yes. It's a tougher case for you. By itself, yes, because they don't make the statement in that summary that they're talking about politic. But remembering this is still on the same inventive concept, the same invention we're by. In this case, the only evidence that exists along the trial that's in any of the briefs that allowed them to make these young modulus values of this ultimate part was by palatizing first. That's a mission by Mary and matter a trial. It's consistent with the one point point. It's consistent with root two. The reason it's consistent with root two is because if internet mixing is so critical to that part, what did they describe as the method for doing it in the root two patterns? They describe only one thing. And that's that same palatization method. That's the only thing they describe. And then at the end, which is the portion of a specification, you refer to, which I think is a 10 of the tributes in the root two patterns. It attributes these improved measurements to improve the young's modulus measurements to the palat of the process here. So what we have here is then telling you in the summary of the invention, in order to get the proper structural part, which nobody in the heart could do before using a polymer and wood fiber extrusion, they couldn't do it. However they were extruding it. We say this intimate mixing will be arranged with fibers, and the long anthem and the children moisture. That's critical to this to getting these improved results. And the way they disclose in the patterns is the palatization. Nothing else. There is not one bit of description. Anyplace in these patterns that describe preparing these things any other way. So now when we're talking about those declines, declines on your face, talk about the actual key phrase at the beginning, I think, is a composite structural member of the state. Suitable for use as a replacement for a wood structural member. It's a replacement part for something that is very strong as a young's modulus value, the minimum of 1.5 million PSI. That's what leading surface. They're looking to have that composite structural member replace wood. And they put in the point to the young modulus value, or the absolute, that they only describe as being available from using the palatizing process. In a specification they say it should be the result to the palatizing process. And at the beginning it's intimately mixed, and that's how they describe it intimately mixing. And in fact it's saying that whatever you were doing before to make this in a pry-wire, you weren't intimately mixing it. And this is how you do it. So on its face, the claim does not include a process that the dating connection method, I think the key part, is that my meaning of part will not be important in its classification and the prosecution history. We're in the very first office action that they are confronted with. In the original application that's the parent of the 553 in the 027 path, in that very first one, they deal with my end. And although they make other arguments, that argument actually says, he says, talking about my end, for a new war, the composite is directly extruded and kept hot during the entire operation. That's how they construe my end, and when he contrasts that, by saying, this type of composite, which is the claim term, is not the composite to what by the present invention. In contrast, the presently can't claim composite is prepared by mixing the melting pomegranate polymer and wood pulp forming palatizing materials. There is not one method step in any of the claims that they are addressing that argument to, but they told the patent office what they really had invented here. And in so doing, they define composite in those claims as certainly excluding any direct extrusion process, which is what find the composite's laws, and limiting it to the palatizing process. That's not the only time they do this. He says, later on in the prosecution of the next application, which is really the application that became the 553 patent, they added the word, thermoplastic to the claims. Now it becomes thermoplastic composite material

. And the way they disclose in the patterns is the palatization. Nothing else. There is not one bit of description. Anyplace in these patterns that describe preparing these things any other way. So now when we're talking about those declines, declines on your face, talk about the actual key phrase at the beginning, I think, is a composite structural member of the state. Suitable for use as a replacement for a wood structural member. It's a replacement part for something that is very strong as a young's modulus value, the minimum of 1.5 million PSI. That's what leading surface. They're looking to have that composite structural member replace wood. And they put in the point to the young modulus value, or the absolute, that they only describe as being available from using the palatizing process. In a specification they say it should be the result to the palatizing process. And at the beginning it's intimately mixed, and that's how they describe it intimately mixing. And in fact it's saying that whatever you were doing before to make this in a pry-wire, you weren't intimately mixing it. And this is how you do it. So on its face, the claim does not include a process that the dating connection method, I think the key part, is that my meaning of part will not be important in its classification and the prosecution history. We're in the very first office action that they are confronted with. In the original application that's the parent of the 553 in the 027 path, in that very first one, they deal with my end. And although they make other arguments, that argument actually says, he says, talking about my end, for a new war, the composite is directly extruded and kept hot during the entire operation. That's how they construe my end, and when he contrasts that, by saying, this type of composite, which is the claim term, is not the composite to what by the present invention. In contrast, the presently can't claim composite is prepared by mixing the melting pomegranate polymer and wood pulp forming palatizing materials. There is not one method step in any of the claims that they are addressing that argument to, but they told the patent office what they really had invented here. And in so doing, they define composite in those claims as certainly excluding any direct extrusion process, which is what find the composite's laws, and limiting it to the palatizing process. That's not the only time they do this. He says, later on in the prosecution of the next application, which is really the application that became the 553 patent, they added the word, thermoplastic to the claims. Now it becomes thermoplastic composite material. And what they did then was define, and when they added that, he says, do use of, by saying the following, do use of thermoplastic polyvide chloride and wood fiber in a composite pellet used in the thermoplastic process to form the structure member would result in a case of the thermoplastic polyvide. And the thermoplastic composite, no, that's the term for the client. Once again, I read that over and you did feature in your brief, and I see the point of the argument that it didn't seem to me, it has an inclusive feel as opposed to an exclusive feel, and the exclusive feel is much more useful in assessing disclaimer. This is saying what is included, and the absence of any broader inclusion may be at some probative value, but it doesn't seem to me quite the same as saying this is what it's not. That may be so, but the question, the larger question is, if the claims are as they say it is, why would you even make the statement? Why would that statement even be there? And the reason is that a lot of the argument was had no politicizing it. So all of a sudden, now they're back at this time focusing on what their invention truly wants, which was politicization. That's what they thought they had invented. Can I ask you this question, which it wasn't alluded to in the briefs, and perhaps it's not in the record in the so-don't go there. Is there any indication, in the record, as to what your product does to achieve the kinds of properties that are touted for the patented product as you view it limited to politicization, without politicization? Not specifically, because originally our product, our process was something that was set up by our company, who was licensed in technology. In any way, but in sort of no specific reason, I don't know what that's like. I'm not sure we've moved on to infringement yet, but how do you deal with, did you do anything else you want to say? I don't know, that's a good question. Suppose we went with the District Court's claim construction on the Group One patents. Yes. Where in the record does it talk about, as far as you claim that the Anderson didn't put in enough evidence to show infringement by the repro? He says, yes, could you spell out your argument a little bit more? The argument is simply this. The only thing that they had tested for, because we're dealing with limited margins and coefficient of experimentation in these parts, some of other things. What their expert did was buy, they bought some product of ours at a school. Some product of Mitzel. And they tested that. The full member. Yes, the full member. The slash of the letter. The post and the spindles and the top rest of our letters. They tested that. And that's how it came to this conclusions as to what was in it and how the margins, longer, is looked. But that's not the repo. I think the repo picture is an actually, but it's not the one

. And what they did then was define, and when they added that, he says, do use of, by saying the following, do use of thermoplastic polyvide chloride and wood fiber in a composite pellet used in the thermoplastic process to form the structure member would result in a case of the thermoplastic polyvide. And the thermoplastic composite, no, that's the term for the client. Once again, I read that over and you did feature in your brief, and I see the point of the argument that it didn't seem to me, it has an inclusive feel as opposed to an exclusive feel, and the exclusive feel is much more useful in assessing disclaimer. This is saying what is included, and the absence of any broader inclusion may be at some probative value, but it doesn't seem to me quite the same as saying this is what it's not. That may be so, but the question, the larger question is, if the claims are as they say it is, why would you even make the statement? Why would that statement even be there? And the reason is that a lot of the argument was had no politicizing it. So all of a sudden, now they're back at this time focusing on what their invention truly wants, which was politicization. That's what they thought they had invented. Can I ask you this question, which it wasn't alluded to in the briefs, and perhaps it's not in the record in the so-don't go there. Is there any indication, in the record, as to what your product does to achieve the kinds of properties that are touted for the patented product as you view it limited to politicization, without politicization? Not specifically, because originally our product, our process was something that was set up by our company, who was licensed in technology. In any way, but in sort of no specific reason, I don't know what that's like. I'm not sure we've moved on to infringement yet, but how do you deal with, did you do anything else you want to say? I don't know, that's a good question. Suppose we went with the District Court's claim construction on the Group One patents. Yes. Where in the record does it talk about, as far as you claim that the Anderson didn't put in enough evidence to show infringement by the repro? He says, yes, could you spell out your argument a little bit more? The argument is simply this. The only thing that they had tested for, because we're dealing with limited margins and coefficient of experimentation in these parts, some of other things. What their expert did was buy, they bought some product of ours at a school. Some product of Mitzel. And they tested that. The full member. Yes, the full member. The slash of the letter. The post and the spindles and the top rest of our letters. They tested that. And that's how it came to this conclusions as to what was in it and how the margins, longer, is looked. But that's not the repo. I think the repo picture is an actually, but it's not the one. That's what it looks like. I think that is what it is. Well, he claims that circumstantial evidence and it's enough to meet the burden. Well, where it comes from is a rejected part that they've never tested. And because this comes belatedly, they never asked to test. And essentially, in order to prove infringement of that, you would have to prove that the repro, not only met that limitation, but it wasn't fact that it did meet the claims. But it wasn't fact met all the limitations in the claims. Figure something because it was a reject. Or the theoretical sample evidence. You can read the title of the percentage of the word five of the content would be just from the specs. I mean, you have to do testing on the repro that's not interesting. And the reason that comes up is because many form that, like, originally, one patents were product, or the other patents, it used to be the one patents. Well, I take it to the young's modulus of, I mean, if I have, for example, a baseball bat, I can test the young's modulus of the bat. If I chop it into 16 pieces, I can still test the young's modulus of each of those pieces. And I will obtain presumably the same result, correct? I'm assuming a consistent, consistency throughout the bat. So the fact that these are all in chip form, I mean, it looks like many, many tiny chips, but nonetheless, you could test the young's modulus of each of these chips, right? And you would assume, assuming that the product is thoroughly mixed, that you would achieve the same young's modulus with respect to each chip that you would for the structural member that you started. You would take a look at the data, because what the partial and the language was the defective to begin with? I mean, that's your argument is that it was defective, and therefore it might not have had the same... We're just not properties. But that's not my argument. That's the other one. Can I ask you one quick final question on the injunction? The only thing I think the district court said was, concluding that this is not a case where the equitable power of the court would be well served. Now, you go on in your brief to spend eight pages or so, dealing with each of the factors and analyzing those factors. But how are we to review the court's decision under a piece of discretion? There's no analysis or no detail on what the court's thinking was. Well, I think the issue is a use of discretion, and those are the factors that were presented to the evidence that was presented to the work in connection to each one

. That's what it looks like. I think that is what it is. Well, he claims that circumstantial evidence and it's enough to meet the burden. Well, where it comes from is a rejected part that they've never tested. And because this comes belatedly, they never asked to test. And essentially, in order to prove infringement of that, you would have to prove that the repro, not only met that limitation, but it wasn't fact that it did meet the claims. But it wasn't fact met all the limitations in the claims. Figure something because it was a reject. Or the theoretical sample evidence. You can read the title of the percentage of the word five of the content would be just from the specs. I mean, you have to do testing on the repro that's not interesting. And the reason that comes up is because many form that, like, originally, one patents were product, or the other patents, it used to be the one patents. Well, I take it to the young's modulus of, I mean, if I have, for example, a baseball bat, I can test the young's modulus of the bat. If I chop it into 16 pieces, I can still test the young's modulus of each of those pieces. And I will obtain presumably the same result, correct? I'm assuming a consistent, consistency throughout the bat. So the fact that these are all in chip form, I mean, it looks like many, many tiny chips, but nonetheless, you could test the young's modulus of each of these chips, right? And you would assume, assuming that the product is thoroughly mixed, that you would achieve the same young's modulus with respect to each chip that you would for the structural member that you started. You would take a look at the data, because what the partial and the language was the defective to begin with? I mean, that's your argument is that it was defective, and therefore it might not have had the same... We're just not properties. But that's not my argument. That's the other one. Can I ask you one quick final question on the injunction? The only thing I think the district court said was, concluding that this is not a case where the equitable power of the court would be well served. Now, you go on in your brief to spend eight pages or so, dealing with each of the factors and analyzing those factors. But how are we to review the court's decision under a piece of discretion? There's no analysis or no detail on what the court's thinking was. Well, I think the issue is a use of discretion, and those are the factors that were presented to the evidence that was presented to the work in connection to each one. In terms of review of that, here, I realize it's difficult to implement certain data purposes in the Senate, but essentially, when you deal with the four factors here, I think the result is, is that any reasonable court would conclude that a permanent injunction here for some of the partners who stopped six years ago in five years ago for reasons of defense in it is probably inappropriate to view the factors in the heart. In terms of the other one, the fluidity, the extra time to move on. Well, if there is something that you think is important for us to hear, orally, that is not perhaps out of the way, and you can't have it by the briefs, why don't you look at it at the beginning of the day still? The only thing I would say on the injunction should be, for shoots, for a two-in-a-two, it's licensing, and what they were doing, there's no audience at that in the record, other than the original licensing. As a practical injunction for the past, for what we stopped selling as of 2000, it doesn't affect the market today, and I can't, still doesn't, in the fringe, because they are the only difference in the chain, probably against it. So, nothing will change in the market. And your content to meet across the delicious fluid, the briefs? I'm really sorry. The interspersion has a contingent of fluid. I am sorry. Very well then. Thank you, Mr. Schien, you know, Mr. Schutes, we will give you your full rebuttal time if you need it. You shouldn't feel obliged to use it. If you need it, it's yours. A couple of points, Your Honor, back to trying to have a nutshell in response to me and respect. If you go right to the spec of the 027, it says, unambiguous labor, more particularly, the invention relates to an improved structural method that commutes this direct replacement fluid. So, if someone wants to know what the invention of the structural member of Patents Eye, it looks to be claimed it's a structural method, then go to spec, it says a structural method. If you look at the biobintery and theione, what it really says is that the presently claimed composite is prepared, in other words, we've got a process here, how you prepare it, and then what you have at the end. We claim what you have at the end. There's a key, and we've got this in the record. There's a lot of patents came out of these patents. We've got never patents. And we know how to write never patents, we've got never claims. So, something that this is, this is an end product claim. And we may put a pellet in each stutter to come out with an end product, they may put polybine chloride power and wood to the stutter to come out with that end product, but it's the end product, it's clean. And when you talk about the intimate mixing, that's critical to get the structural properties

. In terms of review of that, here, I realize it's difficult to implement certain data purposes in the Senate, but essentially, when you deal with the four factors here, I think the result is, is that any reasonable court would conclude that a permanent injunction here for some of the partners who stopped six years ago in five years ago for reasons of defense in it is probably inappropriate to view the factors in the heart. In terms of the other one, the fluidity, the extra time to move on. Well, if there is something that you think is important for us to hear, orally, that is not perhaps out of the way, and you can't have it by the briefs, why don't you look at it at the beginning of the day still? The only thing I would say on the injunction should be, for shoots, for a two-in-a-two, it's licensing, and what they were doing, there's no audience at that in the record, other than the original licensing. As a practical injunction for the past, for what we stopped selling as of 2000, it doesn't affect the market today, and I can't, still doesn't, in the fringe, because they are the only difference in the chain, probably against it. So, nothing will change in the market. And your content to meet across the delicious fluid, the briefs? I'm really sorry. The interspersion has a contingent of fluid. I am sorry. Very well then. Thank you, Mr. Schien, you know, Mr. Schutes, we will give you your full rebuttal time if you need it. You shouldn't feel obliged to use it. If you need it, it's yours. A couple of points, Your Honor, back to trying to have a nutshell in response to me and respect. If you go right to the spec of the 027, it says, unambiguous labor, more particularly, the invention relates to an improved structural method that commutes this direct replacement fluid. So, if someone wants to know what the invention of the structural member of Patents Eye, it looks to be claimed it's a structural method, then go to spec, it says a structural method. If you look at the biobintery and theione, what it really says is that the presently claimed composite is prepared, in other words, we've got a process here, how you prepare it, and then what you have at the end. We claim what you have at the end. There's a key, and we've got this in the record. There's a lot of patents came out of these patents. We've got never patents. And we know how to write never patents, we've got never claims. So, something that this is, this is an end product claim. And we may put a pellet in each stutter to come out with an end product, they may put polybine chloride power and wood to the stutter to come out with that end product, but it's the end product, it's clean. And when you talk about the intimate mixing, that's critical to get the structural properties. And if you don't enter the mixture, you're not going to get the structural properties. And if you look again, and I think this is important, in the plaintiff's after, or in the spec after we talk about making the pellet, then we simply go on, this is column 7 of the O2 7 Patent Eye 1, 3, 7, line 14. And then we, in a similar fashion, the pellet materials we imagine are introduced into an extruder and extruded into the structural metal. So, basically, you're taking the same process you used to extrude the pellet. And then you talk the pellet in, and you extrude the structural metal, and then the mister's getting at it right when he said, you make a pellet because what you can do is use your storage. You put it on a side, and then when your time comes to make the structural metal, instead of mixing some wood, mixing some powder, and it tossing the pellets, is what you do. And that's the only difference. So we have an end product claim, and I think it's clear I think. So that's, you know, I said on that, I think, for that. I'm a repro, touching the grief down that issue to finish up here. The context, of course, is that we were s-j-ed, and with some of the judgment against us on that. Despite these facts, it is like a baseball bat shop, we tested product that's wrong with the store. And sometimes, in this, there's a testimony that sometimes the product's defective when it comes out. It's not defective because it was tested not to have certain product, it's not anything right about that. It's warped, maybe the coloration is it right, it tosses in the pile, then chop it up, and so then they take that chop that stuff and it put it back in just exactly like we do with the pellets here. And so, even though we didn't test the pellet, that's correct. We tested product that came off of their extruders, and there's testimony in a record that that product sometimes defective is chopped up, stored, and then tossed back in the extruder. So, it's not a leap at all. It's circumstantial evidence that the intermediate doesn't back that the same properties as this stuff that we tested. And that was our expert's opinion. But the core of how no material issue is student back there, we think that's wrong. And I thank the core very much for the time that a lot of me at the beginning. Thank you, thank you very much. Thank you. Thank you both, Council. Thank you, all right

. And that's the case is submitted