So, there are arguments next. 12-1-206. B-A-S-F-A-GRO-B-B against A-M-I-F... B-A-R-I-S-F... B-A-S-F-B B-A-R-R-R-R-R... ..based from the Sterj slower yellow from the hallways for the appellant side, as to reserve five minutes for your permission. The patent's ed issue here relate to a process for the effective treatment to protect buildings from insiaics and particularly termites
. The central issue is that the district court erroneously construed the term barrier to include a continuous treatment on only one side of the building. That would leave the other half of the building wholly unprotected from termite infestation. This was not the ordinary and customary term, the use and definition of the word barrier in 1996. It is undisputed in this case that the ordinary and customary meaning of barrier in 1996 was a complete barrier around both sides that substantially blocked all potential areas of entrance. With the respect to that point. That may be true, but during the prosecution of the pen, your client tried to get around prior art by limiting the claims to treating the pesticide at very distinct areas as opposed to all around the house, whether inside, under or outside. The district court in our opinion, respectfully, that issue that you're focused on is exactly where the district court went awry. Because the district court said that the hope declaration which was submitted as part of the prosecution constituted a clear redefinition of the term barrier and redefined it to include a treatment only on one side of the building. And of course the law on this is clear that such a redefinition has to be clear and it has to be unmistakable. And we respectfully submit that a reasonable reading of the hope declaration, it cannot lead to the conclusion that there was a clear and unmistakable redefinition of the term barrier. And so let me go to- When we look at the act that you're describing and in the hope declaration being used as the lecture auger first redefining a relevant term. But don't you also have to look at the remaining of the pattern at the specification and the claims where it clearly said that the pesticide was meant to be administered in very distinct locations. You have a figure in the pattern that shows that. And is that consistent with what the court decided the hope declaration is supposed to do? You know, let me take those one at a time if I'm right
. Because neither the specification, it was really column one line 10 to 12 that the court referred to in the specification. Nor the hope declaration provide a clear and unmistakable redefinition of barrier to mean one side or the other or both. When you think, let's make sure we're all on the same page. I think we are, but it's just to make sure when you say one side, when you initially said one side or not the other side, I was thinking you're referring to the left side, but not the right side. That's not what you're saying. You're saying the outside or the versus the inside. The under or sometimes we say under, sometimes we say inside. I think you're going to say under what we really mean is also to say inside. Correct, you're on the right. When I say one side for shorthand, I apologize. You're really talking about parental outside not under slash inside, right? But what we believe is undisputed in this case is that in the prior art, everyone recognized that in the prior treatments rather, that what happened in the real world in 1996 and it's undisputed in their expert agreed at that position is people who perform this would put it around the outside and around the inside. And the reason for that is pretty simple in the district court acknowledges because a termite can enter from inside under the building through the dirt or from outside into the building. It doesn't matter which way the termite gets in. It's still infest the building and still does the damage
. And that's undisputed. So now Camura comes along and says for the first time, I have a treatment that allows you not to have to cover every single spot. And the district court, when he and then Camura says without barrier, that's the disclaimer. Without where we agree it's a disclaimer. But the question is, does it mean that he's describing a treatment that is both sides, which is what we contend? Or does it mean he's describing a treatment that is even has a barrier only on one side? And we say that makes no sense. It makes no sense. Because when you think about where the judge ended up on a claim construction and, and, I am going to return to the specification and I haven't forgotten. I will go back there in one minute. But let me just finish this thought. The whole point of this invention was to protect the building from, from termite damage. The district court recognized the termites could enter from under or inside or outside. The specification says, loopholes in the treatment cause a failure. Yet the district court construes the patent and the barrier disclaimer to say that one whole side of the building could be left unprotected either the inside or the outside. In a situation where the whole point of the invention is to add a loopholes, it makes very little sense to say we're going to have one whole side unprotected
. When everybody understands the termites can enter, but I'm going to add a loophole on the other side. It doesn't make sense in the context of the patent. Now with respect to the specification, your honor, the judge referred to lines of 10 through 12 of column one of the specifications. Let me just interrupt you for a second. I can't. We just, to go back to the hope declaration, this is, I suppose, a small point since it involves only one word, but it's perhaps an important word. And that is the and slash or word that's used in paragraph 16 at 886. If that word has been read and, then it would seem to me you have a pretty good argument, but it doesn't. Reads and slash or, which suggests that barrier can be defined to include only the one. That is to say a perimeter only not inside. It does suggest that, your honor, but we respectfully submit it that we're the closer reading. What you see is that hope is talking with respect to, for example, the misciilistic patent, and when he says and or, he's talking about two different events. He's talking about the original construction of the barrier on both sides inside and outside. And he's also then talking about the fact that sometimes you have a failure in the barrier, and the barrier needs to be regenerated, and a person comes back and only applies some on one side or the other side to fix a regeneration where there's a hole
. So he is talking conjunctively about two different kinds of events, the original construction of the barrier. Well, and then this is a one, the 16, paragraph 16 is one sentence. And the sentence does seem to say a method, dot, dot, dot, that involves placing under a concrete slab and or around a house to optimize the dose, and that this method either under the slab or around the house is understood by a person of ordained skill in the art as a method of creating or regenerating. A barrier. But your honor, with respect, the misciilchic patent talks about both originally creating a barrier and regenerating the barrier in the case of something's disrupted, in which case you wouldn't need to go do the whole barrier. You only need to do a spot treatment. So the question though, I understand that it's ambiguous. Well, maybe the question, oh, there's no doubt, but the point. Maybe the, maybe the special occasion adds clarity to that ambiguity. The specification says, and this is in column one. You were headed right there, right around line 10, right? Well, conventional termite control operators apply the chemical around or under the building. Right, your honor, it does. But in that same sentence, it refers to conventional treatment and it's undisputed that conventional treatment referred to in that sentence was a full barrier treatment on both sides of the building. No, it says or
. No, but it says the conventional treatment where they apply it or around and under. I understand or is not a clear term. We respectfully submit and the cases of this court have held it to mean either or both in different contexts. Well, this context we believe it means both. Well, counsel, you have a, is it 37, 38, is siloable to cases, right, and relating to exactly what you're talking about. And those cases show, you say, that or as used in the phrase around or under need not carry this junk of meaning. It could, right? Okay. Do you have any cases that say from this court saying that or means and? Well, in the, it can mean, no, no, you know, what we, what, let me be clear about our point here. This is, it's a very important point and I'm glad you raised it. We, we suggest it means either or both. And in the 3M case, this court, which we cite, this court found it to mean either or both. And then that case was cited with approval and a subsequent case that we cited in our brief. And my point is that this is ambiguous, but the standard is he's got to clearly redefine it. And the reason it's ambiguous is because sometimes you're talking about the original creation of the barrier, sometimes as in misciilchic, you're talking also about regenerating a barrier where it is a repair
. Now look, to go to that language, it begins with a conventional treatment. Which language, I'm sorry, I'm sorry, but that's a line to them, column one, the judge read. Yes. The very next sentence contrasts that with forming loopholes at line 12. It contrasts the conventional treatment with forming loopholes. Which was what, which was what Camero was inventing. And respectfully, your honor, it makes no sense to talk about a home, for example, with a barrier around only the outside, nothing at all on the inside. And then Camero is going to come along and invent the idea of adding a loophole on the outside. The entire inside is one mass of loopholes, if that's what is envisioned. In the context of the patent, that construction doesn't make sense. And it leads the surrogate. I mean, I was just going to say you're into your bubble time. Thank you. I would have to thank very much, appreciate it
. Thank you. The inventor made it clear, as the court has already noted, that he claimed treatments without barrier. And he said in the lines on column one, to which you've been referring, that a barrier is formed when insecticide is applied around or under a building. Now, that suggestion that a barrier is an application of a continuous treatment around the building or under a building is in fact perfectly consistent with the prior art and extrinsic evidence. It is true, as Mr. Gallo says, that there are many teachings that in order to protect a building from termite imbages, you must create multiple barriers, a barrier around and a barrier underneath. But that does not affect the meaning of the term barrier. If you look at their principal reference, which is not only quoted, but illustrated at page three of the blue brief, you see a drawing that shows, looks like this, drawing the chose insecticide applied on the outside around, which is called a vertical barrier. And insecticide applied underneath the foundation, which is called a horizontal barrier. In your argument, those are two barriers, one. Those are two barriers, not one. Well, that's not just my argument. That's what the prior art teaches. That was from the approved reference manual, the handbook of test control, which is also relied on, says the same thing
. Yes, in order to fully protect the building from termites, you have to create a vertical barrier, which is a barrier around the perimeter, and you have to create a horizontal barrier, which is underneath the foundation. So there is no terminological inconsistency between the use of the term barrier in the patent, and the use of the term barrier in the prior art, in which BASF results. Now, what the patentee said is that, my method doesn't have any barriers. And he had good, I guess it didn't make any sense from the point of view of somebody seeking a patent, it made perfect sense. The inventor had good reasons to disclaim treatments that formed a barrier either around the building or under a building, because that was the prior, because those treatments were disclosed, and it's hardly disclosed, in the prior art, that the examiner had confronted the applicant with. Take for example the pros detect. That was a patent that, on its face, and as the examiner understood it, involved drilling holes around a building, not under it, just around the building at discrete locations, and squirting insecticide into the soil. And that was one of the pieces of prior art, in which the examiner said, all right, well, how's that different from what you're playing? In the end, what they said was that, well, the insecticide poured into the soil in the prosbee patent, vaporizes, and it expands from the places, and it creates a barrier around the building. There is no suggestion in the prosbee patent that the vapor travels underneath the foundation, and forms a barrier under the building, and there is no evidence, whatever, in the record, that prosbee involves creating a barrier under a building, indeed, the testimony that BASF sites from their expert Dr. Potter suggested that he wasn't even sure it would work at all. But certainly, what the inventor faced, as he was trying to persuade the examiner to grant a patent covering what he claimed as his invention, was prior art that, as characterized by his own declarative, created a barrier around, but not under a building. So it was essential for the inventor to say, well, my invention is different. My invention doesn't create a barrier at all. It doesn't create a around the building, a vertical barrier, and it doesn't create a under a building
. Or for a Zomobarri, it doesn't have a barrier at all. And he needed to say that, or at least he perceived that he needed to say that, to get the patent in the first place. You could ask, could he have gotten a patent that claimed a barrier only on one side? Who knows? That isn't the patent that he asked for. Is there somewhere in the intrinsic evidence? Any indication is to what the term perimeter, set aside barrier from moment. The term perimeter means in this art. I mean, we're throwing word perimeter around. And if perimeter means only, let's suppose, the line which is drawn for lack of a different point, at the ground level, around the four corners of the building, and no more, if that's the perimeter of the building, in another settings it would be assumed to be, then that would seem to exclude the second half of the barrier when we refer to perimeter. But if perimeter includes also the area under the building, if it's used in that way, then that would get forced. It seems to me that it was a kind of... I think the intrinsic evidence, the characterization, for example, in example one, it said it was a 10 by 15 building. Right. So the common sense notion of perimeter is that's 30 plus 20, 50 meters is the perimeter. And I think that's the part... The path really only makes sense if you assume the perimeter in example one is... Is that the exact same way the word perimeter is used in that example, or in connection with that example? Because I don't recall... You can actually have that scare. Well, I'm not sure that it matters, your honor. I'm not trying to fight your question. I think perimeter, I think the judge correctly construed the term perimeter as having its common sense meeting you. Add up the length of all of the sides of the building, and that's your perimeter
. And I think that's the part... The path really only makes sense if you assume the perimeter in example one is... Is that the exact same way the word perimeter is used in that example, or in connection with that example? Because I don't recall... You can actually have that scare. Well, I'm not sure that it matters, your honor. I'm not trying to fight your question. I think perimeter, I think the judge correctly construed the term perimeter as having its common sense meeting you. Add up the length of all of the sides of the building, and that's your perimeter. The argument that BASF is making is that we'll total perimeter means twice that. You have to count the outside and the inside and add them together. So in a 10 by 15 building, your perimeter is 100 meters and not 50 meters. I think that's counterintuitive, and I find very little suggestion in the patent to support that reading. But in a sense again, it doesn't... I suggest it really doesn't matter that the case really turns on what the meaning of the disclaimer is, and the disclaimer was for barriers, and that both the extrinsic evidence and the intrinsic evidence in the patent and prosecution history make it quite clear what a barrier is. And it includes a continuous treatment around the building, which the authorities at the time called a vertical barrier, and it included creating a continuous treated region underneath the building, which the authorities at the time called a horizontal barrier. There is no dispute that my clients product creates a barrier in that sense. There is unambiguous instructions to create what the authorities call a vertical barrier, a barrier around the building. Let me just call your attention to the passage that is provoked and you ask this question about perimeter with respect to barrier. In that case, at 8.82, the appendix, the sentence that is free lines down from the top
. The argument that BASF is making is that we'll total perimeter means twice that. You have to count the outside and the inside and add them together. So in a 10 by 15 building, your perimeter is 100 meters and not 50 meters. I think that's counterintuitive, and I find very little suggestion in the patent to support that reading. But in a sense again, it doesn't... I suggest it really doesn't matter that the case really turns on what the meaning of the disclaimer is, and the disclaimer was for barriers, and that both the extrinsic evidence and the intrinsic evidence in the patent and prosecution history make it quite clear what a barrier is. And it includes a continuous treatment around the building, which the authorities at the time called a vertical barrier, and it included creating a continuous treated region underneath the building, which the authorities at the time called a horizontal barrier. There is no dispute that my clients product creates a barrier in that sense. There is unambiguous instructions to create what the authorities call a vertical barrier, a barrier around the building. Let me just call your attention to the passage that is provoked and you ask this question about perimeter with respect to barrier. In that case, at 8.82, the appendix, the sentence that is free lines down from the top. Dr. Hopo is a verified that the cited priorities, all directed, so-called barrier treatment techniques, where in a complete barrier is formed around the perimeter of a structure to be protected. Now, a perimeter in that setting means only the 50 meters that you are referring to, then that supports you. If it means more than that, it supports your Pussy Council. That's why I'm curious. I think it is. And I think this precious little evidence that perimeter has any meaning other than its common sense of meaning. I just see very little evidence of that. But nothing that nails that question down hard. I think... Yeah, I mean, it is interesting. An example of one
. Dr. Hopo is a verified that the cited priorities, all directed, so-called barrier treatment techniques, where in a complete barrier is formed around the perimeter of a structure to be protected. Now, a perimeter in that setting means only the 50 meters that you are referring to, then that supports you. If it means more than that, it supports your Pussy Council. That's why I'm curious. I think it is. And I think this precious little evidence that perimeter has any meaning other than its common sense of meaning. I just see very little evidence of that. But nothing that nails that question down hard. I think... Yeah, I mean, it is interesting. An example of one. It says it's a 5 by 10 meter perimeter. And it says the treated area, which is reflected by the black squares, represents 5 meters per 10 meters of perimeter. I see. And the black areas may be covered half of the external perimeter, but if the total perimeter includes the interior as well, there's no way that that sentence makes any sense. Okay. Thank you. And final... I mean, I think if you accept, and I think you should, the notion that a barrier is a term that includes a vertical barrier and horizontal barrier. The disclaimer is that my invention... The inventor said to the examiner, my invention doesn't have any barriers at all
. It says it's a 5 by 10 meter perimeter. And it says the treated area, which is reflected by the black squares, represents 5 meters per 10 meters of perimeter. I see. And the black areas may be covered half of the external perimeter, but if the total perimeter includes the interior as well, there's no way that that sentence makes any sense. Okay. Thank you. And final... I mean, I think if you accept, and I think you should, the notion that a barrier is a term that includes a vertical barrier and horizontal barrier. The disclaimer is that my invention... The inventor said to the examiner, my invention doesn't have any barriers at all. The judge construed that as a disclaimer, and therefore a limitation on the claim was no barrier. The fact that the claim is a comprising claim, has uses the transition comprising, doesn't allow the patent to avoid the need to have an element of the claim pressed. If you have... If your claim is A, B, and C, comprise A, B, and C, it may be that you can add D, but you can't add not C. And that's the reason that the comprising term doesn't help BASF in its claim. If you accept, as you should, the district court's claim construction and construction of the disclaimer. So no more questions? House of doubt? Thank you. Mr. Gallo, you have a couple of minutes with three... Three minutes
. The judge construed that as a disclaimer, and therefore a limitation on the claim was no barrier. The fact that the claim is a comprising claim, has uses the transition comprising, doesn't allow the patent to avoid the need to have an element of the claim pressed. If you have... If your claim is A, B, and C, comprise A, B, and C, it may be that you can add D, but you can't add not C. And that's the reason that the comprising term doesn't help BASF in its claim. If you accept, as you should, the district court's claim construction and construction of the disclaimer. So no more questions? House of doubt? Thank you. Mr. Gallo, you have a couple of minutes with three... Three minutes. Thank you, Ron. I'd make three or four quick points. Number one, the patent does not talk about horizontal versus vertical barriers. It talks about the barrier. So that is not in the patent. It's not in the specification. It's not in the prosecution history. Number two, I encourage your honor. I respectfully request the court when you look at something like the hope declaration. When we read it in its entirety. In addition to using the word OR, which creates the ambiguity, it also says it's intended to quote, it's not possible to get to the termite to get to the building without crossing insecticide. It talks about the insecticide being unavoidable to the termite. On page 882, the Judge Bryce, and you referred to in parentheses at the end of that sentence about the perimeter. It uses the word, there are no untreated locations
. Thank you, Ron. I'd make three or four quick points. Number one, the patent does not talk about horizontal versus vertical barriers. It talks about the barrier. So that is not in the patent. It's not in the specification. It's not in the prosecution history. Number two, I encourage your honor. I respectfully request the court when you look at something like the hope declaration. When we read it in its entirety. In addition to using the word OR, which creates the ambiguity, it also says it's intended to quote, it's not possible to get to the termite to get to the building without crossing insecticide. It talks about the insecticide being unavoidable to the termite. On page 882, the Judge Bryce, and you referred to in parentheses at the end of that sentence about the perimeter. It uses the word, there are no untreated locations. And respectfully, as a matter of common sense and the context of this patent, you cannot ensure that a termite doesn't get to a building. You cannot make the insecticide unavoidable. You cannot have no untreated locations. If you're leaving an entire half of the structure, with no insecticide on it, particularly in light of the two undisputed facts that persons of ordinary skill in the art thought of a barrier as being on both sides, their expert admitted that, notwithstanding the argument you just heard for the first time, about two different barriers. That's not in the record. That's pure lawyer argument. Their expert admitted at deposition that the barrier was that, on both, at the time of 1996, a barrier meant a treatment on both sides. Conantly bove law firm that submitted the hope declaration, provided an explanation that said the prior art treatment says the termites can't reach the building. That's just flat. That's not true. If you define a barrier as a human substance, the justification language, we address. Where you 30 say, around or under a family, or houses to form a barrier. It does say around or under. There's no question that that's the hardest issue for us
. And respectfully, as a matter of common sense and the context of this patent, you cannot ensure that a termite doesn't get to a building. You cannot make the insecticide unavoidable. You cannot have no untreated locations. If you're leaving an entire half of the structure, with no insecticide on it, particularly in light of the two undisputed facts that persons of ordinary skill in the art thought of a barrier as being on both sides, their expert admitted that, notwithstanding the argument you just heard for the first time, about two different barriers. That's not in the record. That's pure lawyer argument. Their expert admitted at deposition that the barrier was that, on both, at the time of 1996, a barrier meant a treatment on both sides. Conantly bove law firm that submitted the hope declaration, provided an explanation that said the prior art treatment says the termites can't reach the building. That's just flat. That's not true. If you define a barrier as a human substance, the justification language, we address. Where you 30 say, around or under a family, or houses to form a barrier. It does say around or under. There's no question that that's the hardest issue for us. But what I respectfully submit is in common usage and in the law. Or can also mean both, either or both. That's what we respectfully submit at mints. And then read in context, where at first, in that same sentence, refers to the conventional treatment in 1996, which is undisputed to mean a complete barrier on both sides. And read in context of like misciilchic, where there are occasions where you only treat one side to regenerate a barrier. And read it, I'm sorry, go ahead. The only other, the very next sentence, contrasts it with a treatment with loopholes. And you say to yourself, now does that mean that he's talking about having an entire half of the structure unprotected before the treatment goes on? Read together, it creates enormous ambiguity. The District Court judge said in his Markman opinion, it says, neither the claim nor the specification make fully clear what barrier means. He then goes on to find that it was clearly redefined. So I'm not obviously, he reaches a different conclusion. But early in the opinion, he says, the specification and the prosecution history don't make it clear. And I ask your honours, respectfully, to contrast that with the law of this court, which says it must be clearly and unmistakably redefined. Let me ask you if I can a factual question
. But what I respectfully submit is in common usage and in the law. Or can also mean both, either or both. That's what we respectfully submit at mints. And then read in context, where at first, in that same sentence, refers to the conventional treatment in 1996, which is undisputed to mean a complete barrier on both sides. And read in context of like misciilchic, where there are occasions where you only treat one side to regenerate a barrier. And read it, I'm sorry, go ahead. The only other, the very next sentence, contrasts it with a treatment with loopholes. And you say to yourself, now does that mean that he's talking about having an entire half of the structure unprotected before the treatment goes on? Read together, it creates enormous ambiguity. The District Court judge said in his Markman opinion, it says, neither the claim nor the specification make fully clear what barrier means. He then goes on to find that it was clearly redefined. So I'm not obviously, he reaches a different conclusion. But early in the opinion, he says, the specification and the prosecution history don't make it clear. And I ask your honours, respectfully, to contrast that with the law of this court, which says it must be clearly and unmistakably redefined. Let me ask you if I can a factual question. I just very briefly took clarifying this for me because I found this puzzling. You're building a building that you want to treat with a complete barrier. Let's assume it's slab construction with concrete slab. Where do you put the under portion of the treatment? This is the value of the commercial invention. What had used to happen? What is the convention? What was the old stuff? That's what it was. What used to happen is they would go around the outside of the house, your house would drill every six inches or so. They would come in the air basement and drill holes every six inches to get it under the floor. And that's what Camura, unless they put it in before they put the slab. Right, of course. Or if in pre-construction you'd put it in and then you'd put the slab on top of it. But that was the invention that Camura came up with. You don't have to go and drill holes in the basement anymore. You can put it around the outside and you can pick a couple of spots on the inside and have loop holes. That's the value that revolutionized
. Thank you. We thank Bill of Council for the case of this