Everyone, the first case this morning is number 2010-1096, Biopolver against the Monocort, Mr. Schwiberk. Schwiberk. Would you tell us what's its state in this case since your opponent is not opposing your position? This is Biopolver Engineering, which goes by the name Biopthera, and hold the briefing in evidence. A peel of a summary judgment determination in favor of biotech and immunocorp on the 7-1-9 patent. So the District Court Judge granted summary judge denied Biopthera's motion. I just want to know what the stakes are depending on how this appeal goes. Well, from Biopthera's perspective, the proper outcome is to enter summary judgment in Biopthera's favor and send the case back down for a determination of damages for immunocorp and biotechs, immunopath and immunotall products. So the stakes would be a District Court trial on damages, which would be... But the settlement agreement says there's a free license
. The settlement agreement says that as to immunotall, once this court reverses, there's then a license without a royalty payment for immunotall going forward. It's in fact an anti-injunction license agreement. It says there's a royalty free license. You're saying that that nonetheless, that damages would be due? Up until the date that this court reverses the District Court decision. The Court has been all... That's a significant number, as it was the product in Congress. The product continues to be sold in the United States by immunotall or by immunocorp. I was talking about the future that settled talking about the past. We did
. There are past damages. There are past damages. It would depend on our decision today. Yes. One of the two products isn't subject to the future anti-injunction license. So there isn't any dispute looking at the settlement agreement that as to immunopath, no license is ever granted even when this court reverses. SDMU tall is a court reverses that date when in essence become the end of the damages period. Because then we would look at all of the sales that happen up until the granted license. And those would be subject to the damages determination. Even though the settlement agreement didn't mention that past damages were still alive, that that's understood. The settlement agreement is silent as to any retroactivity
. Biofers view is absent. There's no waiver. There's no release. There's a free license. There's a free license. There's a free license. Going forward. Well, it says that the conditional event for the grant of the license is this court reversing. So on the date that this court enters its order, reversing and entering hopefully summary judgment and biofavorites. On that day, the license is granted. There's nothing in there
. Who have an appeal here on from a summary judgment and not an complaint? Yep. And it hangs on the interpretation of a claim, which is writing a particle size of 1.0 microns or less. About 1.0, that's correct. You wanted an interpretive more rough. There's actually two ways to reach the same result. The district court construed the word having as being a closed term so that the particle size having after the word having had to be exclusively 1.0. But if we look at the specification, there is nothing there that refers to particle sizes having more than 1.0 microns
. In fact, specification says prefers 0.2 microns, which is a good deal of us. And the prosecution distinguished a reference that had much larger. So I was the trial court in here. Okay, let me break it down into pieces. The specification uses the term fine grind to refer to its, I'll call it sub-micron, about 1.0 microns particles. And what the specification discloses is that its preferred embodiment is a nutritional supplement, which is just that, about 1.0. But twice in the specification, it talks about how the nutritional supplement can have both the fine grind and the larger, non-ground particle sizes. And is there any number referring to particle size greater than 1
.0 microns in this fact? Which is the basis for interpretive claims. Distinguishes prior disclosures, which would obtain a beta-glucan, which is larger, from what its preferred embodiment, which was a, uses the term fine grind, or a particle reduction method, to obtain something which is about 1.0 or less. So it distinguishes everything which is above 1.0 as the non-ground larger particle size. It doesn't put a number. It doesn't say that the average particle size is 4 to 6 microns. It simply distinguishes the larger non-ground particle, which are the ones that are not ground, from the ones that are ground. And then twice it says, both the non-ground larger particles and the fine grind, smaller particles can be put together. Yeah, it's column 2, line 66, both the fine grind and non-ground substantially purified beta-1, 3, glucan, more preferably the fine grind, glucan described herein, may be administered orally. And then again, at column 3, starting at a line 17, both the fine grind and the non-ground substantially purified beta-1, 3, glucan product, may be administered to animals as a significant nutritional supplement for the purpose of improving both growth and survival in these animals as well as enhancing growth rate and feed efficacy
. Where is the particle size for the non-ground material? In column 3, beginning about line 2, it is believed that upon oral administration, the smaller or finer particle size, the glucan, that's the about 1.0, is more quickly dissolved in the gastrointestinal track and consequently more readily absorbed as compared to non-ground glucan product, which comprises lower than the normal one. The larger sized glucan particles. But the specification says that after you sit about the larger particles, you grind them again. The invention was not the use of the glucan, it was the particle size. The invention was a combination of larger particle size and smaller particle size. And that's what the specification talks about. And when it used a comprising plane for what the beta glucan. But if you argued with the examiner that the invention was the small, fine-leg ground particle. The prosecution history, the discussion with the examiner was about the fact the prior didn't disclose any of the non-ground. This is not a case where the patent holder is trying to read it on a product that does not have the sub-micron or about 1
.0. Everybody admits this product has the about 1.0. The question is, is Canada have both that and more? What the district court was saying was, no, it has to be just the stuff below 1.0 micron. What the specification discloses? Is your construction such that if it has just one or two glucans that are 1.0 microns or less than it in front of you? Yes. So it could have, you know, a million glucans that are above 1.0. But if one or two of them in there happen to be smaller than 1.0, there's a Frenchman
. Yes. If the nutritional supplement contains glucan particles that are below 1.0 micron, about 1.0. It infringes. The fact that it has additional particle sizes, which are larger than 1.0 micron, doesn't make it not infringed. The court construed the term having, but because we were never given a chance to the argument, it ignored the composing term that appears before the term having. So even if this court were to affirm the construction of the district court, which is closed, I think that's contrary to the specification. But even if this court were to do it, their product is still infringed. The reason why their product infringes is because you would still have particle size, about 1
.0 micron, 1.0 micron and less. In addition, because of the comprising term, you would have water and solubilese-bated glucan, along with whatever else is in their nutritional supplement, which leads to infringement. There's nothing because of the earlier comprising term, even if you close off having, that element is still satisfied. Biofair is not attempting to read. There are. Comprising the water solubilese cell wall extra, or something else. That's the meaning of comprising. Yep. Then comprising substantially purified beta-bink hands, or something else. And then having a particle size, which identifies the particle size. It's water-soluble yeast cell extract. There are three terms there, each of which you're trying to draw. No. Biofair is only seeking an open construction, well, we are seeking an open construction of having. Assuming having is closed, comprising, the second comprising would mean you have water and solubilese cell wall extra. Comprising purified beta-bink hands, having closed a particle size about 1.0 micron. And, because it's a comprising term, substantially purified beta-13-bink hands, not having the narrow particle size. That second comprising means that the water and solubilese cell wall extra can have more than just the closed, if that's the construction that's applied. 1.0 micron
. It's water-soluble yeast cell extract. There are three terms there, each of which you're trying to draw. No. Biofair is only seeking an open construction, well, we are seeking an open construction of having. Assuming having is closed, comprising, the second comprising would mean you have water and solubilese cell wall extra. Comprising purified beta-bink hands, having closed a particle size about 1.0 micron. And, because it's a comprising term, substantially purified beta-13-bink hands, not having the narrow particle size. That second comprising means that the water and solubilese cell wall extra can have more than just the closed, if that's the construction that's applied. 1.0 micron. This is a preferred embodiment issue on the term having. So you're not saying that the really effective product is the finely ground the micronized stuff with a few chunks that kind of pass through this larger than one micron. Your response to Judge Moore's question was that it can hold these chunks as long as you have just a little bit of the micronized stuff. What was unique about this pattern was a nutritional supplement with a particle from the beta-glucan that had a size below 1.0 micron. Even if it's only one or two percent of the total glucan. Yes. And how did you resolve that in the light of the arguments during prosecution? Because the duration was the micronized and the solubility and the insulubility. The issue during prosecution was that the prior art didn't disclose anything below 1.0 micron. It didn't disclose anything about the particle size
. This is a preferred embodiment issue on the term having. So you're not saying that the really effective product is the finely ground the micronized stuff with a few chunks that kind of pass through this larger than one micron. Your response to Judge Moore's question was that it can hold these chunks as long as you have just a little bit of the micronized stuff. What was unique about this pattern was a nutritional supplement with a particle from the beta-glucan that had a size below 1.0 micron. Even if it's only one or two percent of the total glucan. Yes. And how did you resolve that in the light of the arguments during prosecution? Because the duration was the micronized and the solubility and the insulubility. The issue during prosecution was that the prior art didn't disclose anything below 1.0 micron. It didn't disclose anything about the particle size. It didn't teach a small particle size. There was no disclosure of a small particle size or that product contained a small particle size. So the applicant distinguished himself by the prior art by saying ours contains a sub-micron, a small particle size. But the applicant didn't say ours contains exclusively a sub-micron. It contains only a sub-micron. Rather, as disclosed in the original application, the applicant was saying ours is both. There is just large particles because they don't disclose anything about the existence of any of the small particles. So the specification says that what's effective is the micronized stuff. The preferred embodiment on the particle size according to the applicant is the sub-micron. But it discloses that both can be part of the nutritional supplement. Which a non-preferred embodiment set out? There are, well, yes, in the sense that it discloses a nutritional supplement that is both the large particle sizes and the small particle sizes
. It didn't teach a small particle size. There was no disclosure of a small particle size or that product contained a small particle size. So the applicant distinguished himself by the prior art by saying ours contains a sub-micron, a small particle size. But the applicant didn't say ours contains exclusively a sub-micron. It contains only a sub-micron. Rather, as disclosed in the original application, the applicant was saying ours is both. There is just large particles because they don't disclose anything about the existence of any of the small particles. So the specification says that what's effective is the micronized stuff. The preferred embodiment on the particle size according to the applicant is the sub-micron. But it discloses that both can be part of the nutritional supplement. Which a non-preferred embodiment set out? There are, well, yes, in the sense that it discloses a nutritional supplement that is both the large particle sizes and the small particle sizes. But the specific, this was a divisional. The specification. To me, the other disclosures are a point two microns. Look at everyone of the examples and they relate either to 1.0 or 0.2. And let me quote for you what you know for a while. What was stated in the prosecution. No, we're in the art because the examiner point to a teaching or suggestion of beta-13E extract blue can, having a particle's fine particle size, the more particularly a particle size of 1.0 or 0.2 or less
. But the specific, this was a divisional. The specification. To me, the other disclosures are a point two microns. Look at everyone of the examples and they relate either to 1.0 or 0.2. And let me quote for you what you know for a while. What was stated in the prosecution. No, we're in the art because the examiner point to a teaching or suggestion of beta-13E extract blue can, having a particle's fine particle size, the more particularly a particle size of 1.0 or 0.2 or less. I mean, those steps really sets out what your invention is in contra-distinction to fire out. What the applicant didn't say and what the court tried to impose into the patent is an exclusive 1.0. What the applicant said was, it doesn't teach the small particles. And that's all the applicant ever said. What was unique about this invention was the small particles and the possibility of combination with a large particle. If the court, and keep in mind the evidence that they contain a sub-micron particle, it's actually in the district court's order, it's in their admissions, it's in the court's order. It's in their communication with their attorneys. The term having given this specification should be open because the specification discloses both can be there. This is not a case as this court typically sees where there's one preferred embodiment and we're trying to argue about something that doesn't appear in the specification, the combination of both. What about claim 2, which says the composition of claim 1 having a particle size of 0
. I mean, those steps really sets out what your invention is in contra-distinction to fire out. What the applicant didn't say and what the court tried to impose into the patent is an exclusive 1.0. What the applicant said was, it doesn't teach the small particles. And that's all the applicant ever said. What was unique about this invention was the small particles and the possibility of combination with a large particle. If the court, and keep in mind the evidence that they contain a sub-micron particle, it's actually in the district court's order, it's in their admissions, it's in the court's order. It's in their communication with their attorneys. The term having given this specification should be open because the specification discloses both can be there. This is not a case as this court typically sees where there's one preferred embodiment and we're trying to argue about something that doesn't appear in the specification, the combination of both. What about claim 2, which says the composition of claim 1 having a particle size of 0.2 microns or less? Given that it's referring to the composition, it seems clear to me that everything in claim 2 has to be 0.2 microns or less. Not just a single particle or two. Well, keep in mind that a product doesn't just have a single particle or two. But claim 2, the dependent. The court of the declaration 98.6% of the blue-cam particles in the accused products are greater than 4 microns. So that leads only 1.4% of the blue-cans in the accused products that are just less than 4. It's a big distance between 4 and 1 and 2. That's their view of the evidence on the test
.2 microns or less? Given that it's referring to the composition, it seems clear to me that everything in claim 2 has to be 0.2 microns or less. Not just a single particle or two. Well, keep in mind that a product doesn't just have a single particle or two. But claim 2, the dependent. The court of the declaration 98.6% of the blue-cam particles in the accused products are greater than 4 microns. So that leads only 1.4% of the blue-cans in the accused products that are just less than 4. It's a big distance between 4 and 1 and 2. That's their view of the evidence on the test. I understand. It's our appeal of a determination of some re-judgment. From our perspective, it doesn't matter if it's 12% that falls in the 1.0 micron or a smaller amount. Claim 2 is the dependent claim where it's now the clause that's being interpreted as 1.0 microns now drops down to a point 2. And the experts testimony showed that it got down to 0.028. But for the purposes of this appeal, claim 1 is sufficient to reverse and 5 judgment. We're not focused on trying to obtain infringement of claim 2. The district court construed the term having
. I understand. It's our appeal of a determination of some re-judgment. From our perspective, it doesn't matter if it's 12% that falls in the 1.0 micron or a smaller amount. Claim 2 is the dependent claim where it's now the clause that's being interpreted as 1.0 microns now drops down to a point 2. And the experts testimony showed that it got down to 0.028. But for the purposes of this appeal, claim 1 is sufficient to reverse and 5 judgment. We're not focused on trying to obtain infringement of claim 2. The district court construed the term having. But given that claim 2 clearly pertains to every particle contained within the composition being at 0.2, why doesn't that likewise imply that claim 1 is talking about the entire composition? I disagree with your premise. I don't think claim 2 is talking about every particle size being about 0.2. The composition of claim 1 having a particle size of about 0.2 microns or less, the composition that's being followed by the ball wax. The composition containing. Now the where it is. Let me say the composition containing. It says the composition of claim 1. And so claim 1 was according to our view, nutritional supplement, which is a combination of things
. But given that claim 2 clearly pertains to every particle contained within the composition being at 0.2, why doesn't that likewise imply that claim 1 is talking about the entire composition? I disagree with your premise. I don't think claim 2 is talking about every particle size being about 0.2. The composition of claim 1 having a particle size of about 0.2 microns or less, the composition that's being followed by the ball wax. The composition containing. Now the where it is. Let me say the composition containing. It says the composition of claim 1. And so claim 1 was according to our view, nutritional supplement, which is a combination of things. Clang 2 says that claim where a particle size is about 0.0.2 or less. The dependent claim as a further limitation that the particle size is even smaller than in claim 1. Not suggesting that everything that existed in claim 1 is that smaller particle size. The specification discloses the nutritional supplement with both larger particle sizes and smaller particle sizes. That's the correct instruction. Thank you. Any other questions? Any other questions? Okay. Thank you, Mr. Shrieger
. We will take the case of your submission