Is council here for Hockerson, Helperstatt and Cusco? Next case is number 061263, Hockerson Helperstatt, Cusco. Please is a court. I'm going to get right into the issue with regards to the lower rent. The court area in the claim construction concerning the lower rent and the court define the lower rent as a low sedge, the border, the yield portion, the perigot she admits of the point where the yield actually touches the ground and contact with the surface. Our contention is there's nothing in the pattern and the specifications or in the claims when the prosecution history requires that the shoe actually be touched in the ground or the measurement is made to determine where the lower rent is. If we look at the prior art which is in figures 1 and 2 of the 895 pad, you'll see that it's a pyramid-shaped mincele and what was added to it is a support band going from the lower rent of that pyramid shape and so up to the yield portion and kind of showing the shoe, just a shoe just to have you had an idea. This was the lower rent here and you had a support band that went up to the mid-span and the heel pump to support the shoe from supernating and pronating. It was a stabilized idea and in the early 70s there was nothing that had a support. Is this a Costco shoe? This is not a part of the record. No, not part of it. I gather you're not objective too. This is a precise shoe that we did objective below and I would have objective of course going to look at it in the record below. There was not a record below. It's outside the relevant sales period, it's not a huge shoe as a side
. I think they said it aside and we'll avoid further debate. Okay, well these are concerning the lower rent wise. I believe the 12-core area was led down on Roni's path for two reasons. One, they were relying on, and this is in the appendix 3055 and 3056 of the breed, they were lying on an argument made by a Mr. Backus who was returning for A.S.I. and during the regime's downation with Mr. Backus was arguing that the distinction was between a Foucai operaton and the 895 pattern. During that he said that the Foucai operaton must have not been measured with touching the ground. The midsole could not have been measured with touching the ground. From that it was inferred that the 895 pattern had to be touched in the ground. Now that's not a clear disavowl of any limitation that could be read into the pattern
. From the mere fact that there was a statement made to the examiner that this shoe is different. It should be noted that the Foucai operaton did not have a midsole, pyramid shape, did not have an outsole. It was a capsule, it was a completely different type of shoe. The other thing I think that misled the court was an arrow. It was a test done by Mr. Wattley who was the expert witness on behalf of H.H.I. Mr. Wattley testified a trial, he was asked a question by Costco's counsel, and the question was concerning the hypothetical based on an assumption, based on an assumption based on an assumption. If we're looking at the Foucai operaton and let's assume that it doesn't have a capsule, let's assume it has a midsole and from that let's assume that the midsole has an outsole. And from that can you tell us where the lower rim is? From that point we stated where it got the lower rim is. And where the lower rim is clearly stated, which was more narrow than what we are claiming that it is
. And what we're saying the lower rim should be looked at is it should be at the lower rim having opposite sides to declare outwardly located, which lies significantly laddering beyond the lower edges of the heel cup. That's claim one of the patent. That's the specific language of the patent. And what was happening is the court took a hypothetical based on an assumption, an assumption, an assumption, and drew a conclusion that the lower rim was not on the actual outer edges of that pyramid shaped midsole of the shoe. That's significant because that's going to change where the measurements is. In order for the invention to work, in order for the invention to take into consideration the prior art, you have to have a midsole with the lower edges wider, the lower rim wider than the lower edges of the midsole. And the lower edges of the midsole is where the heel cup actually sits on the midsole. It's kind of technical. It's actually pretty straightforward as far as what's happening in here. Well, you say it's kind of technical. It seems to me to be almost hyper technical. And my problem is, didn't just look at all of this and say we've got some very technical claims with very minor variations, little just where the edge, what's the edge of the heel of the rim and so on. And the court tried to adopt as far as I could tell what might be described as a normal common sense practical interpretation of what these terms really were intended to do
. It's hard for me to say reading the district court's opinion and claim construction that the district court was just off the wall on this. I don't think there were off the wall. I think there were misled in the sense that mistakenly. If you were reading the limitation into the pattern that doesn't exist, if we say that the lower rim is any place other than the midsole, and if you're saying the shoe has to rest on the surface, then we're saying that the lower rim is the outsole. And what that would do then is place the limitation into the pattern that's not there. The only viable argument to get it in there would be through the prosecution history, saying that somehow HHI disavowed something. But unless it's clear and ambiguous, we could not have done that and they did not do that. So it is a critical point because you're talking millimeters in order for if that lower rim is measured at the lower edge of the midsole, it's different than if it's measured at the lower edge of the outsole, which is attached to that midsole. Especially in the Costco case, because their outsole is rounded. Now the interesting thing about that is if that argument was accepted, it would basically say if you had an outsole that was rounded, you might have a shoe that infringes or you might not. Or if you have a shoe that has an outsole at square after wearing it for a few hundred miles of running or whatever activity, you're going to round the edges and all of a sudden the shoe doesn't infringe. And I think it's critical that the outsole or that the lower rim is measured at the outer portions of the midsole. And I guess that's the distinction, is that we're reading a limitation into the patent that doesn't exist if we don't say that the outsole is at the lower edge of the midsole
. Any other questions on that? I will move on to that other argument that I have with regards to the midsole construction. I think the core error construction of the midsole is starting the midspan. The force stated that the midspan is a specific structure. And in this case, the midspan is not a specific structure. And again, if we go to the language of the specifications, what it says is, let me define a midspan. The midspan is from the lower edge, again, it's where the upper sits under the midsole of the shoe. And then it would be at the heel cup of the shoe. So you have this area which was not unsupported prior to this invention. Before we have, there was an upper of a shoe sitting on a pair of midspan and there was nothing that supported around it. We are saying that the midspan can be literally any area between the lower edge where that upper sits on the midsole and up to the middle of the heel cup. It doesn't have to be a specific point. It must have been- Mr. Wattley testified to this to something here in a manner that's somewhat damaging to you
. Saying that the midspan is the point at which the top of the support band merges with the side wall of the heel cup. Mr. Wattley testified that it merged- but he didn't say- he said that it merged at a point where the support band was still laddable so we had long hands being ladd wrong. And what that comes into an issue in this case is that you had some perforated material that went up higher than you actually needed for the midspan. Now, it's always been our position that the 895 bat in the midspan was not a specific area. I think Mr. Hockerson, the inventor in the prosecution history, stated that it was not a specific area. But for the argument, I think it is somewhat moved in the sense that Mr. Wattley said, as soon as you have the lower rim, the measurement code in the lower rim, and it's beyond the lower edge, and you have that angle, you have the invention. And even if it's attached to a single spot, you will still have the invention of the 895 bat. And so there was some differentiation there, but I don't think that that was a credible differentiation or a mirror that's going to affect our position. The other thing that I'd like to say with regards to the midspan is that if you're taking your ordinary definition, there's not one addiction area for midspan. I've looked all over, but if you take the words that you look at mid, it's midpoint in span as area
. And if you read the language in the specifications, what you have is column three begins with line 19 with a support band extends upwardly in merges a long line 40 with the vertical midspan. If it's going to merge, it's not going to be a specific point. I'd nowatize that to a freeway. It doesn't actually have a specific spot when you're merging on the road. You don't jump on, you merge on. And then the exact next sentence is talking about how the support band also extends upward in merges a long line 42 with the side of the ebber which is above and it goes on. But again, it's using the exact same language, merging. And so what I think there is that the specifications are clearly defining what the midspan is. It's a point that merges. But if you look at column three lines 18 through 23, you've got this pretty clear indication that the midspan is a structure and it gives the location of that structure. Right? Well, it's a structure, but I think it's an area where I think the structure is the wall or the support band is going up to the midspan. What does the figure six show here? Where's the midspan? Well, figure six shows that there's a point on the midspan on the line 40. So what are you saying? Is that really okay? That's what I'm looking at
. Okay, figure six shows one 40. But I'm saying that anywhere between basically where you see 38 up to 40 is that midspan area. Now the picture shows one 40, but that's not the only one. I didn't show that with a some kind of more encompassing illustration in your figure six here. You pointed to a specific place and said that's it. Well, it's saying that it is saying that, but I don't think you can look at the picture that the figure ended up at the top. I think you have to look at with the flames and with the specification. I'm looking at the specification. We just looked at the place where we were talking about the support band extends upwardly to merge along the line 40. As it says in column three, with the vertical midspan of the hilltop and also extends upwardly to merge along line 42. And I think that's a critical point because if you look at line 42, you see there's no way it could be a specific spot. This is line 42 here. This all this is midspan and it is going to merge through here with the upper
. And I think that that's your argument you're making is I think is on point in the sense that it's not a specific spot or specific. Pretty for specific. It's pointing to exactly that point of merger all where that point is may vary with the angle of the shoe there, but it's a pretty specific point, right? Well, I mean, I can see that it's a specific point on the drawing, but I think that with the used merge and you look at the specifications of the language, I mean, merged does not stand for a specific point. I mean, merged if if we merged under a free we're not jumping on a specific point we're gradually getting to there. And I think once you get above the lower edge and then you go up to the middle of the hilltop, that area is the merge spot. This drawing shows well, this is one of the embodies, but this is not the only place where that midspan could be. And can I reserve the rest of my time if I'm running? Yes, I am. Really short. Yes, I will leave. Please the court. I will address the same issues if I may. I look respect to the lower rim. We have a couple of claim limitations here that really drive what the lower rim means
. There are two. One says that the lower rim has to be wider than the hilltop midspan, but the fifth limitation, which was added in the re-examination, specifically, couches the width of the lower rim in terms of the ability of the sole of the shoe to provide stability. And in this case, the distinction that was made with respect to Fukuoka, to it scarcely have been clear, I can't imagine a plainer case of disavowal than the submission of a drawing. The lines are standing down there, it's saying, measured here when you have a curved lower rim because, outward of that, provides no stability. That's the word that's used in the fifth claim limitation, the fifth one down that's in italics that was added in re-examination. That's the one that that drawing was submitted to talk about the argument and why other than that has no stability. So if the lower rim is to be measured wider than that, they say it would be an error. And in the Costco's case, the outsole is curved, the sole, and the word in that limitation is sole. That's the word that it uses in terms of stability. Wider than that, provides no stability. You can't measure wider than that. There are also other arguments or other issues within the specification as well that support it. Throughout it, it says stability is key in the specification with respect to the lower rim. There's uttering nothing. It simply points generally to the bottom of the shoe. It doesn't have lines drawn in measurement locations and dimensional measurements. It's nothing in the specification to guide us within the claim itself in terms of clear disavowal. We have the word sole used a number of times. We have midsole. We have lots of different language. It makes it very unclear exactly what this terminology is getting at. We know that lower rim is a coin term. Is there a way to acknowledge these words lower rim and mid span wallings? They're all coin terms. In order to say you need a clear disavowal, but clear disavowal isn't departure from an ordinary and custom meaning. We don't have that here. Instead, what we have is a definitional language in the prosecution history that says, in this case, when it's curved, measured inward to flat and actually touched us the ground
. There's uttering nothing. It simply points generally to the bottom of the shoe. It doesn't have lines drawn in measurement locations and dimensional measurements. It's nothing in the specification to guide us within the claim itself in terms of clear disavowal. We have the word sole used a number of times. We have midsole. We have lots of different language. It makes it very unclear exactly what this terminology is getting at. We know that lower rim is a coin term. Is there a way to acknowledge these words lower rim and mid span wallings? They're all coin terms. In order to say you need a clear disavowal, but clear disavowal isn't departure from an ordinary and custom meaning. We don't have that here. Instead, what we have is a definitional language in the prosecution history that says, in this case, when it's curved, measured inward to flat and actually touched us the ground. We also have both sides. The experts from both sides saying the same thing. Mr. Watley in particular is saying in a hypothetical, if it curves upward, you measure it where it first peels up in the horizontal. The exhibit that Mr. Watley was shown in the conjunction with that hypothetical was the footwork illustration that very long from the footwork pattern. I figure 12. Assuming that's where it is, you place it straight into the bottom and where it peels up, that's where you measure the lower rim. The first that peels up from the horizontal. The issue with footwork with that HHI takes is that it doesn't have a midsole and it's not right out of the sole. And yet, footwork describes its true construction in exactly the same kind of language that the claim says. Footwork says it has a foam interlayer and a hard outer layer. Well, the claim says it has to have a resilient midsole and a more durable outsole
. We also have both sides. The experts from both sides saying the same thing. Mr. Watley in particular is saying in a hypothetical, if it curves upward, you measure it where it first peels up in the horizontal. The exhibit that Mr. Watley was shown in the conjunction with that hypothetical was the footwork illustration that very long from the footwork pattern. I figure 12. Assuming that's where it is, you place it straight into the bottom and where it peels up, that's where you measure the lower rim. The first that peels up from the horizontal. The issue with footwork with that HHI takes is that it doesn't have a midsole and it's not right out of the sole. And yet, footwork describes its true construction in exactly the same kind of language that the claim says. Footwork says it has a foam interlayer and a hard outer layer. Well, the claim says it has to have a resilient midsole and a more durable outsole. That's the identical thing. It doesn't use the precise exact words, but in any time situation where you're looking at prior art, people are going to use different words. They mean utterly the same thing. So the application of footwork that can scarcely have been more appropriate, the departure and the definitional language in the file history was exactly spot on. If the sole is rounded, measure it where it stops being flat and first peels up. Mid-Mitsule is similar here, rather vertical mid-span. That was a coin term as well. If we were to look at it definitionally, the evidence that we submitted in the Markman hearing says that it should be in the middle of the span, halfway between the bottom and top of the span, while in the heel cup. We submitted evidence that is consistent with the file history that shows lying 40 is being right in the middle between the top and the bottom of the span. The language about merging in, which is used in the specification, even if you talk about hypotheticals and analogies about merging into a free-winged stutch, you still have to get there. You still have to merge all the way in. If you look at figure 6 for instance in the pattern, it shows that it kind of tapers in and gets thinner and thinner as it gets there, but it does get all the way to line 40, halfway between the bottom and the top of the mid span. Mr
. That's the identical thing. It doesn't use the precise exact words, but in any time situation where you're looking at prior art, people are going to use different words. They mean utterly the same thing. So the application of footwork that can scarcely have been more appropriate, the departure and the definitional language in the file history was exactly spot on. If the sole is rounded, measure it where it stops being flat and first peels up. Mid-Mitsule is similar here, rather vertical mid-span. That was a coin term as well. If we were to look at it definitionally, the evidence that we submitted in the Markman hearing says that it should be in the middle of the span, halfway between the bottom and top of the span, while in the heel cup. We submitted evidence that is consistent with the file history that shows lying 40 is being right in the middle between the top and the bottom of the span. The language about merging in, which is used in the specification, even if you talk about hypotheticals and analogies about merging into a free-winged stutch, you still have to get there. You still have to merge all the way in. If you look at figure 6 for instance in the pattern, it shows that it kind of tapers in and gets thinner and thinner as it gets there, but it does get all the way to line 40, halfway between the bottom and the top of the mid span. Mr. Watley specifically said that top. That was his work. He specifically admitted having testified that the vertical mid span had been measured at the top of that EVA material on its shoe, the top of the supporting. So all of the testimony, the specification, all the points of the same thing, there is utterly not one work in the specification, in the file history that suggests that it can be the range along the span. The only thing that you will find is the submission during the re-examination of a deposition transcript from an inventor that was taken in litigation after the pattern original issue, but at some point during the re-examination, in which at that point in time he says it could be anywhere along the span. But of course nothing in the pattern suggests that. The only thing he has is the line, line 40. Now, my counsel suggests that line 42 is different. You see in figure 5, line 40 extends horizontally, and line 42 tapers down. But the opposite language is the vertical mid span of the heel cup. Line 40 is along that location. Line 42 is extending farther forward, and the other claim is 2 and 3 deal with that line 42. There is no debate about what the vertical mid span of the heel cup should be
. Watley specifically said that top. That was his work. He specifically admitted having testified that the vertical mid span had been measured at the top of that EVA material on its shoe, the top of the supporting. So all of the testimony, the specification, all the points of the same thing, there is utterly not one work in the specification, in the file history that suggests that it can be the range along the span. The only thing that you will find is the submission during the re-examination of a deposition transcript from an inventor that was taken in litigation after the pattern original issue, but at some point during the re-examination, in which at that point in time he says it could be anywhere along the span. But of course nothing in the pattern suggests that. The only thing he has is the line, line 40. Now, my counsel suggests that line 42 is different. You see in figure 5, line 40 extends horizontally, and line 42 tapers down. But the opposite language is the vertical mid span of the heel cup. Line 40 is along that location. Line 42 is extending farther forward, and the other claim is 2 and 3 deal with that line 42. There is no debate about what the vertical mid span of the heel cup should be. It's right at line 40, halfway between the bottom and the top. In fact, if there is any error here, it's because the core didn't go far enough, and to hold that this claim literally means it must extend upward halfway between the top and the bottom of the heel cup. He allowed it to simply be the top of the support band wherever it ends. That was sufficient in the language of the evidence that trial would have healed as a result either way, in this case. But the core probably should have gone farther and said, vertical mid span is halfway between the span, top and bottom of the heel cup. I would like to also look at one last point if I may on the mid span. Mr. Watley did all for testimony, his counsel points out that he said something along the lines of, you still have the invention there, as long as you've got some supporting material, you've still got the invention. I suppose we wouldn't disagree that as long as you had any material in that so-called unsupported gap with the prior art shoe that you would have some additional support, it would function better and reduce flexing and so on. But in that case, the claim would say something like a shoe with some support material or support band. It's a very long claim. It has all kinds of rigorous dimensional requirements, be honestly absolutely absolute support material. So it's fine for the shoe to be functioning that way, but in order to in principle pattern requires a whole lot more
. It's right at line 40, halfway between the bottom and the top. In fact, if there is any error here, it's because the core didn't go far enough, and to hold that this claim literally means it must extend upward halfway between the top and the bottom of the heel cup. He allowed it to simply be the top of the support band wherever it ends. That was sufficient in the language of the evidence that trial would have healed as a result either way, in this case. But the core probably should have gone farther and said, vertical mid span is halfway between the span, top and bottom of the heel cup. I would like to also look at one last point if I may on the mid span. Mr. Watley did all for testimony, his counsel points out that he said something along the lines of, you still have the invention there, as long as you've got some supporting material, you've still got the invention. I suppose we wouldn't disagree that as long as you had any material in that so-called unsupported gap with the prior art shoe that you would have some additional support, it would function better and reduce flexing and so on. But in that case, the claim would say something like a shoe with some support material or support band. It's a very long claim. It has all kinds of rigorous dimensional requirements, be honestly absolutely absolute support material. So it's fine for the shoe to be functioning that way, but in order to in principle pattern requires a whole lot more. So we would discount what Mr. Watley says on those grounds. I would address one last point if I may in terms of the broadening of this claim and re-examination. This claim originally had in the last limitation a wall that had or support band rather than had to be applied up to the link. It was amended thereafter to say that the midsole and support band had to form a wall means which implying upwardly. This court previously dealt with that issue in the Congress decision and at that point in time was focused on the aspect of whether the support band after the amendment had to start from the low rim all the way to the bottom and concluded that it didn't. But in looking at the conceptual shoe that Congress set forth concluded that when Congress amended the support band so that it no longer started at the low rim, it destroyed the pyramid shaped midsole. And therefore those two limitations, the support band and the pyramid shaped midsole were somehow inherently interrelated such that the only way you could adjust the support band so that it didn't start the low rim would be a way that destroys the pyramid shape. But the hypothetical shoes that we have presented show that that's not the case that it is quite possible to construct a shoe that keeps the exact pyramid shape and all of the other limitations of the claim. But as a support band that does not start at the low rim might start anywhere all the way down to infinitely small, barely perceptible distance above the lower rim. And is this argument about the invulidity of the cotton that the re-examination offered as an alternative ground for affirmance? I mean I'm not to what are you asking us to do to declare that the patent is invalid now? Yes, Your Honor. That was the district court passed on this question. The district court did in the form of denying a summary judgment motion presented by Costco
. So we would discount what Mr. Watley says on those grounds. I would address one last point if I may in terms of the broadening of this claim and re-examination. This claim originally had in the last limitation a wall that had or support band rather than had to be applied up to the link. It was amended thereafter to say that the midsole and support band had to form a wall means which implying upwardly. This court previously dealt with that issue in the Congress decision and at that point in time was focused on the aspect of whether the support band after the amendment had to start from the low rim all the way to the bottom and concluded that it didn't. But in looking at the conceptual shoe that Congress set forth concluded that when Congress amended the support band so that it no longer started at the low rim, it destroyed the pyramid shaped midsole. And therefore those two limitations, the support band and the pyramid shaped midsole were somehow inherently interrelated such that the only way you could adjust the support band so that it didn't start the low rim would be a way that destroys the pyramid shape. But the hypothetical shoes that we have presented show that that's not the case that it is quite possible to construct a shoe that keeps the exact pyramid shape and all of the other limitations of the claim. But as a support band that does not start at the low rim might start anywhere all the way down to infinitely small, barely perceptible distance above the lower rim. And is this argument about the invulidity of the cotton that the re-examination offered as an alternative ground for affirmance? I mean I'm not to what are you asking us to do to declare that the patent is invalid now? Yes, Your Honor. That was the district court passed on this question. The district court did in the form of denying a summary judgment motion presented by Costco. Did you raise in the summary judgment motion the argument that the patent had been impromissibly broadened at the re-examination stage? Yes, Your Honor. As you pointed out we dealt with this in Congress didn't we? Yes, Your Honor. The court did deal with this. The sentence where the court talked about not conceiving of hypotheticals. You've got a couple hypotheticals that you think will do the trick. And I would hope that I wouldn't waste the court's time simply trying to take another crack at it in the same old shoe, Your Honor. And I think that Congress missed it. The court certainly wasn't motivated to look for it as Costco or a defendant in our shoes would be. And I think that the shoe has no issue. The hypothetical shoes that we presented have literally everything that the amended claim requires but would not have infringed the original. We don't need to reach this if you went on the rest, right? That would be correct, Your Honor. Yeah, if it pleases court out, we'll go to the floor and say the last remaining time. Okay, thank you, Mr
. Did you raise in the summary judgment motion the argument that the patent had been impromissibly broadened at the re-examination stage? Yes, Your Honor. As you pointed out we dealt with this in Congress didn't we? Yes, Your Honor. The court did deal with this. The sentence where the court talked about not conceiving of hypotheticals. You've got a couple hypotheticals that you think will do the trick. And I would hope that I wouldn't waste the court's time simply trying to take another crack at it in the same old shoe, Your Honor. And I think that Congress missed it. The court certainly wasn't motivated to look for it as Costco or a defendant in our shoes would be. And I think that the shoe has no issue. The hypothetical shoes that we presented have literally everything that the amended claim requires but would not have infringed the original. We don't need to reach this if you went on the rest, right? That would be correct, Your Honor. Yeah, if it pleases court out, we'll go to the floor and say the last remaining time. Okay, thank you, Mr. Gray. Let's see. Well, first with regards to the Congress case. I'm going to just touch that really quick. At that point in time, this court said that the wall means had to had to stem, had it inclined from the lower end. His example still do not do that. I think the court looked at that fairly closely at that time and said they could see it, no other idea. I don't know, or any other way of doing this. I don't think there is any other way. And what has been shown in their brief, it still is not the wall means is not coming from the lower end up to the midspan. It is not doing that. With regards to the merging thing, it's, it's, it's column two line 14, it says merging with the midspan. It doesn't say merging to it says merging with
. Gray. Let's see. Well, first with regards to the Congress case. I'm going to just touch that really quick. At that point in time, this court said that the wall means had to had to stem, had it inclined from the lower end. His example still do not do that. I think the court looked at that fairly closely at that time and said they could see it, no other idea. I don't know, or any other way of doing this. I don't think there is any other way. And what has been shown in their brief, it still is not the wall means is not coming from the lower end up to the midspan. It is not doing that. With regards to the merging thing, it's, it's, it's column two line 14, it says merging with the midspan. It doesn't say merging to it says merging with. So I'm still going to push on that, that argument that it's not a specific point that's going to merge with something. I'm calling to line line 14 of that. I'm seeing it saying said band is staying everything merging with the vertical midspan that he'll cut for supporting the stabilizing. And again, that seems to be fairly clear as to, it's not a specific point. And as I argued a little bit earlier, I think that if you look at it, it's column three, we're choosing that same exact lines, you're merging along line 40. And if you look at the next line where it's talking about 42, it says 42 merging along the line. And I think Texas Digital stands on point, it says it states that you should look at a pattern in the specification in term of ordinary meaning of rewards. And I think there's a pattern there saying that it's merging. It's not a specific spot. And it looks like I'm out of time. If it looks as if you're out of time, you could rely on your brief with respect to the validity issue. In which case, Mr. Gray, nothing for every battle
. Last question, then. Thank you both, the case is taken under submission