Legal Case Summary

First case this morning is intimate versus magnetar Mr. Ward. Thank you. Good morning and may you please the court. To win on this appeal intimate must prove one thing, demonstrate one thing to this court. And that's that the district court aired when it interpreted the claim one element related to an intermediary. And the court district court did so air in at least one of two ways. What's an intermediate and why is it necessary in this claim? And in this claim your honor the intermediary serves the purpose to provide spacing and support for the magnets of the magnet elements which are the magnets with alternating polarities. In physics reasons there has to be spacing between those two magnets of alternating polarities and also these magnets are so strong that if there's not something in between those two magnets they tend to spin into a new location. Okay the significance of a hallbacher ray is that it creates a one-sided flux

. And in the hallbacher ray all of the magnets are participating in creating that one-sided flux. Given that can any of the magnets in the hallbacher ray be considered intermediaries? They're all participating as magnetic elements to create a one-sided flux. How do you therefore as you must say that some of the magnets are nonetheless intermediaries? Because the claim language tells us that they are your honor. The claim language provides that the magnet elements are those elements that are part of the plurality of magnets along the carrying rail of alternating polarities. Those are the only magnet elements that we're looking at for magnet elements. So in a hallbacher ray where the magnets that are in between those alternating polarities are parallel to the carrying rail as opposed to perpendicular they are not of alternating polarity. And because they are not alternating polarity they are not magnet elements as defined by claim one, the specific language of claim one. What's the significance of the disclosure in the pattern that says the flux must run crosswise? Wouldn't that mean that the magnets having their north and south pole pointing across the air gap would be considered magnetic elements? The magnet elements that are of opposite polarity along both carrying rails are those magnet elements. And we agree your honor that is the flux that is created across that air gap that provides the main breaking force in these rides

. There's nothing in evidence or factually submitted to the district court. But in the hallbacher ray those magnets with the polarity running parallel with the track itself are nonetheless participating in that crosswise creation of an eddy current. That is a factual contention by magnetar that is in dispute. That's just realities of how a hallbacher ray works. I mean you can get that off. Excuse me, Wikipedia. That is true your honor. But even though it's participating they're not providing the main breaking force. And there's nothing in the claim language, claim one language or the specifications that would exclude a magnet as being an intermediary no matter what the arrangement of that magnet is

. The claim language says look to the magnetic array. Find those magnets that have opposite polarity, one pointing with the north pole pointing up, the next with the south pole pointing up and so on. And in the things in between those two magnets. But you argue, excuse me for interrupting. You agreed with the district court that the intermediary is just something between the magnetic elements. And then you also argue that that's something between the magnetic elements does not participate in the flux. Now, doesn't that seem to matter? We did not argue with your honor with all due respect that does not participate in the flux what we argued was that those alternating polarity magnets create the main breaking force. That was the phrase that we use. We're not saying that whatever the intermediary is cannot participate in providing the flux

. That's nowhere in the claim language. It's nowhere in the specifications, your honor. So those were not specifically excluded either by argument or by the claim language or the intrinsic evidence here. Instead, your honor, the patent language tells us to look for those alternating polarity magnets. And there's no dispute that alternating means opposite. There's only two poles in a magnet, one north and one south. And along those carrying rails, those magnets that we're told to look for, look between in order to find the intermediary are those adjacent pairs on the same rail. One with a north facing up and next with the south facing up. So it's your theory that these alternating magnets remain adjacent even though there's another magnet between them

. Is that how you read it? It's yes, your honor. And it's because the language is alternating pairs of said plurality of magnet elements. And magnet elements does not include all magnets, but instead it's defined in the prior claim element to be only those magnets of alternating polarity. And the term adjacent is meant to tell you to look along the same carrying rail. Because by its own claim language, we're saying there's an intermediary in between those alternating polarity magnets so they cannot necessarily abut. They cannot be next to each other. Well, let me ask you about the flux. You mentioned the flux before. Yes

. Even assuming we were to accept your view of intermediaries, allowing them to be magnets. You're not saying the case is over then on the infringement right. Is there something left? Would we have to, wouldn't we have to remand it to the district court for them to determine whether or not there's infringement and the accused devices? In other words, whether the magneted elements create the necessary flux? Well, your honor. First of all, you would not necessarily have to remand for that purpose because it's undisputed what the hall back array looks like that's used in the magnetart brakes. And that shows that those intervening or intermediary magnets are of lateral or parallel to the polarities or parallel to the carrying rail. And if the court finds that there's nothing in the claim language or specifications that requires or limits the intermediary from participating in a flux in any way, then you don't have to remand for the purpose of determining whether there's an infringement issue still. Instead, you could remand with the direction that there's a to reverse the judgment of in the literal infringement, summary judgment of literal infringement on this particular claim. Now, on that point of whether or not the intermediaries can contribute to the flux, nobody's ever, I mean, the district court didn't reach that issue on plain construction. You're asking us to decide for the first time, construe the claim so that they can contribute to the flux, correct? I agree, Your Honor, that the district court was not asked to determine if, as part of the claim construction, the contribution to flux of an intermediary is important or not

. The other basis, in addition to the fact that the district court did not look to determine what the magnet elements were, which magnets were supposed to look at. The district court also appears to have, although it states that it did not, bring a limitation from the specifications, read that into the claim one language, and that limitation was that that intermediary is non-magnetic. In response, Intimid argued to the district court that the intermediary can be magnetic, and the district court in response, and in rejecting that argument stated and quoted the portion of the specification that described a figure showing a non-magnetic intermediary. Then based upon that denied magnetar, or Intimid's interpretation, that the intervening intermediary can be magnetic. Now, if you look at the claim one and claim two languages, it's clear that the inventors did not intend to limit the intermediary and claim one to non-magnetic intermediaries. There's no such limitation in the claim language, it just says, and intermediary. And more specifically, in claim two, is a dependent claim with only one additional limitation. And that additional limitation is only that that intermediary is non-magnetic. I spend a lot of time in the scholarship of patent law, and we all scoff at the reverse doctrine of equivalence

. Is this the one case in a million where the reverse doctrine of equivalence applies? Where, indeed, we do have a magnetic intermediary that fits within the language of the claim, but the claim operates, the accused device operates in such a different way that it is not infringing. By the hallmark of a way, creating a one-sided flux and the polarities that are parallel to the track participating in the creation of that eddy current in a way that is not anticipated by the claim. This is not the one in the million case, Your Honor. Why? It's not the one in the million case because that the claim language anticipates and provides for a magnetic or an intermediary that may be magnetic, including a magnet. Now, magnetar argues in its brief that although claim one would cover a magnetic intermediary, that would be steel or another metal that may be magnetic, there's nothing in the claim language or specification that would slice out that pours carve out an exception of what is magnetic and what is not magnetic for the purposes of this claim. Further, Your Honor, when you refer to a one-sided flux, the flux has to go across that air gap in order to provide a braking force, and that's what this patent is about. Having that flux go across that air gap and slow down the roller coaster ride, slow down the dropping tower ride, so it operates in the exact same way, Your Honor. It may provide additional direction or additional compliments to the braking according to magnetar, but Your Honor, it does provide flux across the gap. What was this patent of translation from? It was translated from a German patent

. Okay. It reads like it. The other point that we raise in the appeal, Your Honor, is not necessary for intimate prevail on appeal, but because we are regarding the length limitation in claim one. The district court has already found that it denies summary judgment for infringement under the doctrine of equivalence related to the length limitation. That is not going to appeal, that is not going to cross appeal. The length that we're arguing about in our brief relates to the district court's judgment of literal non-infringement, and in applying that, of course, its interpretation or its misinterpreted conductive rail for conducting part. We would argue that that needs to go back to the district court to determine if to reevaluate based on the proper claim language, whether or not there's literal non-infringement. Well, as I read the patent, or at least as I tried to understand it, the conductive part is that part of the conductive rail that has the conductive covering. The conducting part is that's correct

. So the conductive rail is the longer part. So it's all one unit, except part of the conductive rail, conducting rail is and that's the coating. That's correct. Now, we don't have in the record, at least I couldn't find a full description of the accused device. So I'm puzzled about this length problem, that is in the context of a roller coaster, is it your perception of this whole device that the rail will go, the conductive rail will go the whole length of the roller coaster railing, or is it just a piece at the end where the car comes into the rest stop? How does that work? It works in this way in a roller coaster implementation. The magnets are actually on the track within 100 or 200 yards of the station. The rail, the conductive rail is on the passenger car. So it cannot extend the length of the roller coaster ride. It only extends the length of the passenger car. At most, it may be shorter than the length of the passenger car, which is why you're on it. We disagree with the courts and the district courts interpretation that length means it has to travel from end to end of any ride, whether it be a tower ride or a roller coaster ride. And I see them about to run out of time, but I'd like to reserve a little time I have left for the rebuttal time. Would you give Mr. Senga? Senga. Thank you very much. And the extra three minute should he need to use it. Morning, Your Honours. The intermediary claim limitation, we think it was correctly interpreted by the district court and the district court's interpretation did not turn on whether the intermediary was magnetic or not

. At most, it may be shorter than the length of the passenger car, which is why you're on it. We disagree with the courts and the district courts interpretation that length means it has to travel from end to end of any ride, whether it be a tower ride or a roller coaster ride. And I see them about to run out of time, but I'd like to reserve a little time I have left for the rebuttal time. Would you give Mr. Senga? Senga. Thank you very much. And the extra three minute should he need to use it. Morning, Your Honours. The intermediary claim limitation, we think it was correctly interpreted by the district court and the district court's interpretation did not turn on whether the intermediary was magnetic or not. It simply ruled that the intermediary is a member disposed between others and in making that interpretation is properly. If that's the case, if the intermediary is just in this claim, something disposed between the magnets of opposite polarity, then even if that thing which is between the magnets of opposing polarity happens to be another magnet that is participating in the flux, doesn't it still fall within the scope of the claim? Well, Your Honour, I would say no. The reason being is that the claim language says that the adjacent pairs in between which the intermediaries is disposed. Those are adjacent pairs of magnets of alternating polarity. The claim in some instances refers to opposite polarity when it refers to the magnets across the gap, one rail to another rail, but within the same rail, the plurality of magnets is described as magnet elements mounted on each upset carrying rails with alternating polarities. Now, that is a broader term than opposite polarities. As we know from the Hallback Array design, the polarity of the magnets does not have to change to be 180 degrees opposite. The polarity of the magnet can change incrementally by 45 degrees or 90 degrees. Are you saying that in the that this middle magnet is an alternating magnet? Is that what your argument is? Correct

. It simply ruled that the intermediary is a member disposed between others and in making that interpretation is properly. If that's the case, if the intermediary is just in this claim, something disposed between the magnets of opposite polarity, then even if that thing which is between the magnets of opposing polarity happens to be another magnet that is participating in the flux, doesn't it still fall within the scope of the claim? Well, Your Honour, I would say no. The reason being is that the claim language says that the adjacent pairs in between which the intermediaries is disposed. Those are adjacent pairs of magnets of alternating polarity. The claim in some instances refers to opposite polarity when it refers to the magnets across the gap, one rail to another rail, but within the same rail, the plurality of magnets is described as magnet elements mounted on each upset carrying rails with alternating polarities. Now, that is a broader term than opposite polarities. As we know from the Hallback Array design, the polarity of the magnets does not have to change to be 180 degrees opposite. The polarity of the magnet can change incrementally by 45 degrees or 90 degrees. Are you saying that in the that this middle magnet is an alternating magnet? Is that what your argument is? Correct. The one that's pointing up instead of pointing sideways. Well, we have one magnet pointing up directly, adjacent to it is a magnet pointing sideways. That is an alternating polarity and we have nothing in between them. The record is clear that those magnets are abutting one another directly. All of this is based on your assumption that alternating and opposite are not equivalent. Alternating does not mean opposite. Alternating does not mean opposite. I mean, Mr. Red the briefs, but I thought the other side at least was even citing testimony by one of your witnesses that said that alternating and opposite are the same things

. The one that's pointing up instead of pointing sideways. Well, we have one magnet pointing up directly, adjacent to it is a magnet pointing sideways. That is an alternating polarity and we have nothing in between them. The record is clear that those magnets are abutting one another directly. All of this is based on your assumption that alternating and opposite are not equivalent. Alternating does not mean opposite. Alternating does not mean opposite. I mean, Mr. Red the briefs, but I thought the other side at least was even citing testimony by one of your witnesses that said that alternating and opposite are the same things. Whether I'm right or not about that. Is there anything in the record to establish that? Yes, you're going to have to claim itself where it uses the different terms in different contexts and uses opposite polarity to refer to the magnets across the rail versus alternating polarities to refer to the magnets within the rail. Number one, number two, in the specification where it describes the intermediary, it again uses different terms. It says that the polarity can be reversed where it can you? I'm referring to the specification here at column 4 line 22. It says the polarity of the magnet elements are reversed along the direction of the carrying rail. Now that would be analogous to opposite reverse meaning 180 degrees apart. Now it goes on, and it says that the magnets always have a different polarity, different meaning something different, but not necessarily 180 degrees apart. And so the specification uses different terms, likewise in the claim itself. It uses different terms and the presumption is that the different terms at different meaning

. Whether I'm right or not about that. Is there anything in the record to establish that? Yes, you're going to have to claim itself where it uses the different terms in different contexts and uses opposite polarity to refer to the magnets across the rail versus alternating polarities to refer to the magnets within the rail. Number one, number two, in the specification where it describes the intermediary, it again uses different terms. It says that the polarity can be reversed where it can you? I'm referring to the specification here at column 4 line 22. It says the polarity of the magnet elements are reversed along the direction of the carrying rail. Now that would be analogous to opposite reverse meaning 180 degrees apart. Now it goes on, and it says that the magnets always have a different polarity, different meaning something different, but not necessarily 180 degrees apart. And so the specification uses different terms, likewise in the claim itself. It uses different terms and the presumption is that the different terms at different meaning. With respect to your honor's question. Why would they? Why would they? Why would the draft admittedly this an interpretation problem perhaps even a problem of converting this patent from German to English? Why would they want to use two different terms meaning two different things to describe the same features? That's what I'm puzzled about. Well the only answer I could give is that presumably the alternating term is broader. They will then where possible they wanted to get whatever breadth that they could and that if there were some, against some change in polarity but not 180 degree change that they wanted to cover that. But we are left with the record here that they established and from the record we see that they use different terms and it appears that they intended to have different meanings and certainly if they wanted to cover something broader they would give the benefit of that record. So if we were to disagree with you on that point, is that the end of the story for you? Well, no. So we disagree on this alternating means opposite. What's left of your theory on the claim line which I'm intermediary? On intermediary? Well we certainly can have a reverse dr. Novakowlins argument that I could address but on the basic concept of whether you know something whether there is an intermediary you could presumably determine that the magnet could be the intermediary

. With respect to your honor's question. Why would they? Why would they? Why would the draft admittedly this an interpretation problem perhaps even a problem of converting this patent from German to English? Why would they want to use two different terms meaning two different things to describe the same features? That's what I'm puzzled about. Well the only answer I could give is that presumably the alternating term is broader. They will then where possible they wanted to get whatever breadth that they could and that if there were some, against some change in polarity but not 180 degree change that they wanted to cover that. But we are left with the record here that they established and from the record we see that they use different terms and it appears that they intended to have different meanings and certainly if they wanted to cover something broader they would give the benefit of that record. So if we were to disagree with you on that point, is that the end of the story for you? Well, no. So we disagree on this alternating means opposite. What's left of your theory on the claim line which I'm intermediary? On intermediary? Well we certainly can have a reverse dr. Novakowlins argument that I could address but on the basic concept of whether you know something whether there is an intermediary you could presumably determine that the magnet could be the intermediary. I will note however there's no disclosure in the specification of an intermediary that is anything other than non-magnetic. Why? Why? Why? Why? Why? Isn't the claim differentiation itself a disclosure? You've got magnetic claimed as a dependent claim. Why doesn't that claim differentiation argument itself disclose a broader meaning for an intermediary? That includes magnetic as well as non-magnetic elements. Two reasons you're on are number one that dependent claim was added during prosecution. It was not part of the original disclosure upon filing. So it would be new matter. And secondly, we have a question as to whether claim differentiation is more than just a guideline in the course of the claim construction process or whether it is. So we have said in Phillips that the one place where it may have application is in the instance of dependent claim enlightening the breadth of the independent. Well and you're certainly you know as I'm not saying it should not be considered all I'm saying is that I don't think it rises to the level of creating disclosure in the specification since it was something added during the prosecution

. I will note however there's no disclosure in the specification of an intermediary that is anything other than non-magnetic. Why? Why? Why? Why? Why? Isn't the claim differentiation itself a disclosure? You've got magnetic claimed as a dependent claim. Why doesn't that claim differentiation argument itself disclose a broader meaning for an intermediary? That includes magnetic as well as non-magnetic elements. Two reasons you're on are number one that dependent claim was added during prosecution. It was not part of the original disclosure upon filing. So it would be new matter. And secondly, we have a question as to whether claim differentiation is more than just a guideline in the course of the claim construction process or whether it is. So we have said in Phillips that the one place where it may have application is in the instance of dependent claim enlightening the breadth of the independent. Well and you're certainly you know as I'm not saying it should not be considered all I'm saying is that I don't think it rises to the level of creating disclosure in the specification since it was something added during the prosecution. Doesn't figure six by the way show the lack of a intermediary? That is an embodiment in which it appears that the magnets are directly in contact with one another and all the more reason why when they claimed an intermediary affirmatively that the public should be entitled to rely on that narrow scope of the claim particularly in view of the file history where the original claim submitted was merely three lines long. Well but if that's an embodiment we need to construe the claim to cover that embodiment right? Well you're on our I don't think that we have to construe the claim to cover every single embodiment that's disclosed. Clearly the preferred embodiment is one in which there is some type of non-magnetic intermediary that's what the bulk of disclosure is about but the you know of course a patent owner would love to have the broadest claim that covers every conceivable embodiment but up here we've got the patent owner drafting the claims to the specific. Isn't your device just an improvement? Well we do think it is better your honor but I don't think it's an improvement I do think it is it is a change in kind because it has done something that in fact the patent owner didn't didn't really contemplate initially Mr. Ward said in his argument that the whole purpose of the intermediary was to deal with the issue of the magnet spinning relative to one another. What magnet art did it was instead of using it in a intermediary to solve that problem it encased the magnets in a tube and the tube provided the resistance to the spinning of the magnets so it really addresses the problem differently not only in the way the flux is created but also in the way the issue of the spinning of the magnets relative to each other. If anyone limitation is missing then there's no infringement obviously talk a little bit about this length issue which we just got to at the end of your your opponents discussion I'm interested in how I can't quite figure out how the length issue works in the context of a roller coaster. Roll across the okay what happened in the roller coaster embodiment and this is described in Mr. Pribonix declaration at J

. Doesn't figure six by the way show the lack of a intermediary? That is an embodiment in which it appears that the magnets are directly in contact with one another and all the more reason why when they claimed an intermediary affirmatively that the public should be entitled to rely on that narrow scope of the claim particularly in view of the file history where the original claim submitted was merely three lines long. Well but if that's an embodiment we need to construe the claim to cover that embodiment right? Well you're on our I don't think that we have to construe the claim to cover every single embodiment that's disclosed. Clearly the preferred embodiment is one in which there is some type of non-magnetic intermediary that's what the bulk of disclosure is about but the you know of course a patent owner would love to have the broadest claim that covers every conceivable embodiment but up here we've got the patent owner drafting the claims to the specific. Isn't your device just an improvement? Well we do think it is better your honor but I don't think it's an improvement I do think it is it is a change in kind because it has done something that in fact the patent owner didn't didn't really contemplate initially Mr. Ward said in his argument that the whole purpose of the intermediary was to deal with the issue of the magnet spinning relative to one another. What magnet art did it was instead of using it in a intermediary to solve that problem it encased the magnets in a tube and the tube provided the resistance to the spinning of the magnets so it really addresses the problem differently not only in the way the flux is created but also in the way the issue of the spinning of the magnets relative to each other. If anyone limitation is missing then there's no infringement obviously talk a little bit about this length issue which we just got to at the end of your your opponents discussion I'm interested in how I can't quite figure out how the length issue works in the context of a roller coaster. Roll across the okay what happened in the roller coaster embodiment and this is described in Mr. Pribonix declaration at J.A. 304 in the roller coaster the conductive part and rail are attached to the car that the passenger sit in. It is in the accused device about three feet long for each car the ride itself is approximately a thousand feet long. The magnets the array of magnets are fixed they're mounted on the ride itself in the stationary part of the ride and as the car moves past the area where you want to stop the car the fin on the car passes through the magnets in our is this fin energized? Well no the fin is just a piece of metal has a metal coating it's it is the what's referred to as the conducting part or conducting rail and it is the coating the conductive coating is co extensive with the the entire rail so it is not independently energized the magnets are energized correct the magnets provide the the energy in that scenario and so there's there was no debate at the district court level that the conducting rail in the accused products was substantially shorter than the end-to-end length of the ride and the real issue was a was a pure legal claim construction issue over what does length mean and the district court properly construed length to mean the distance not the direction the position intimate has is that length means lengthwise parallel to the rails as opposed to turn sideways and we pointed out in our briefs how in every instance where the term length is used in the specification and even in other claims it's used to refer to the distance of the whatever it happens to be that being described not the orientation or direction an orientation or direction is referred to there's a specific mention of that so we think the plain meeting was properly construed by the district court and we've also raised as an alternate ground for a firmance the doctrine of equivalence issue on this extend the length limitation we do think it's it's properly raised on appeal there was an issue in the intimate reply brief as to whether we properly appealed it what we timely appealed from the only appealable order in this case and this is an appropriate basis to support a finding of no infringement and year there was an amendment for purposes of that ability festo applies and there's been no argument by intimate at any stage that any of the festo exceptions apply so there's a complete R to the is the conduct just as the technical is the they talk about the conducting fin in the accused device is the conducting fin on the accused device the same thing is the conducting part that we're talking about the point right that the fin yeah the fin is the same thing as the conducting part the entire fin is coated with conductive material what's confusing is the term conducting it actually doesn't conduct anything does it's just an inner piece of metal isn't that right the coated it is in your honor however when passing through the flux field generated by the magnets it is the thing that creates the breaking force so it's kind of a chicken and egg issue there can I go back to them just one question on the magnetic intermediate issue sure if we get past the point where magnets can be intermediaries and we sort of skip that we got into a little discussion with the other aside about then the question of infringement if we we've we're if we were to change the claim construction and do you agree the other side said that it's not necessary it's not required that just the magnetic elements create the necessary flux because the intermediaries can also contribute to that and that yeah as I understood the other side thought that was clear is there any dispute on that this is well yeah I think the enrichment analysis whether or not in the accused device one I I would have thought that it's the man again the accused device in order to establish infringement you have to establish the magnetic elements create the necessary flux and the other side said no no no no no it's clear that the intermediaries can contribute to the flux maybe I misunderstood but you heard no I think that's that's the issue I think to some extent the district court did in rejecting this mean breaking force argument the district court did get to that it said look the the issue on the intermediary is is not whether you know it provides less breaking force than the other magnets there's there's no disclosure of the patent whatsoever of the intermediary providing a breaking force so our view is that if the you know we would have to really take a much closer look at the whole operation of the of the device if we were to have a different construction there but the extent the length issue certainly gives an alternate ground for a firm and I one one question just posted you asked regarding mr. Probonics testimony on alternating an opposite I didn't want to address that he testified that the magnets on the other rail from the you know the two carry rails the magnets from the other rail in the accused device are not opposite polarity and frankly he he preferred to alternating an opposite but when he was giving his answer explaining exactly what was done in the accused device and he said no we we don't have alternating we don't have opposite he was talking about the magnets on the other rail not the issue that's before this court which is within a given rail you know is there is there adjacent magnets of alternating polarity I'd like to touch on the the rule 11 issue briefly the this report initially had awarded sanctions and the basis for that was that there was not a reasonable prefiling inquiry the reason being is that the prefiling investigation revealed no information about the orientation of the magnets in the accused device and even under intimate claim construction knowing that orientation of the of the magnets is critical to them and we have an unusual situation where the plaintiff actually admitted that from the photographs that they took they couldn't determine what the orientation of the magnets were and what ultimately happened in the district court reconsidering is it weighted the quantity of efforts that the plaintiff put into the prefiling investigation and looked at the quantity versus the quality none of the rule 11 standard it's an objectively reasonable standard and from that point of view there just was no evidence about the orientation of the magnets from which the plaintiff could have made a reasonable conclusion that there was infringement and the standard in the reconsideration order which looked at the totality of the plaintiff's efforts was the wrong legal standard and the the district court can supply the Antonius decision and what's unusual here is that we know because the only difference between the original decision and the decision on reconsideration was the court applying a different legal standard there was no additional factual evidence of the plaintiff's investigation presented so we know that that legal standard in this case was dispositive of the sanctions issue and this court should clarify that the standard is not just one of the rating on the amount of time that was spent or the amount effort that was spent if there are claim limitations that the prefiling investigation does not reveal that can't be an objectively reasonable investigation and the decisions in view and June support that very now I guess here what happened was the product was observed from a distance and from a distance the particular magnetic orientation couldn't be discerned plaintiff admits as much and as a result we have those sanctions are appropriate thank you mr. Skanga thank you mr. Ward you have three minutes remaining thank you Your Honor going to the alternating polarity argument and your honor to address your point about mr. Pribonix testimony I will read it to you from page j a 1370 the question posed to mr. Pribonix was so as you understand it the term alternating polarities means exact opposite polarities and now we're talking about as used in the 350 patent and he says yes it wasn't about reverse polarities it wasn't about different polarities he was asked what does alternating polarities mean and because as he admitted there are only two polarities in north polarity and a south polarity in magnet alternating polarities means opposite and that's how it's used in the 350 patent that's what he admitted to in his deposition and that is what is justified by the intrinsic evidence as well throughout these specifications and the claim language can I just just do quickly on the length of the fixed device part yes if we were to accept the court's claim construction which you challenge I is it still your view that there's some genuine issue of fact with respect to literal infringement on the accused devices again we accept the district court's claim construction that the rail has to run along the track if you accept the district court's opinion that the claim construction that the rail must go run from the very beginning to the very end of the track then on the literal infringement no there's no reason to go back to the district court I'm drawn or because they're the accused product does not run from end to end however as we previously discussed there are other disclosed embodiments of this particular invention the bodyman of four for example or a railroad car a railroad or sorry roller coaster ride where the rail is attached to the car and is much shorter so it necessarily cannot extend end to end of the track your honor as far as the doctrine of equivalence argument that is now being raised by magnetar it is not if you look into in the red brief in their cross appeal the only issue raised in the cross appeal in the red brief is the rule 11 sanctions issue and it is not an alternative grounds for granting for for this appeal because what we are challenging intimate is the grant of summary judgment for literal infringement on the length term we have not challenged the district court's denial of summary judgment for infringement under the doctrine of equivalence that would be separate if you reverse that you would be modifying and amending the judgment not just of affirming the present judgment in the district court therefore it was required to be something that had to be cross appealed it wasn't and necessarily cannot be relied upon by magnetar here likewise magnetar never raised before the district court the argument of what do the opposite opposing magnets look like that was never a factual issue or basis for infringement at the district court level thank you thank you mr

.A. 304 in the roller coaster the conductive part and rail are attached to the car that the passenger sit in. It is in the accused device about three feet long for each car the ride itself is approximately a thousand feet long. The magnets the array of magnets are fixed they're mounted on the ride itself in the stationary part of the ride and as the car moves past the area where you want to stop the car the fin on the car passes through the magnets in our is this fin energized? Well no the fin is just a piece of metal has a metal coating it's it is the what's referred to as the conducting part or conducting rail and it is the coating the conductive coating is co extensive with the the entire rail so it is not independently energized the magnets are energized correct the magnets provide the the energy in that scenario and so there's there was no debate at the district court level that the conducting rail in the accused products was substantially shorter than the end-to-end length of the ride and the real issue was a was a pure legal claim construction issue over what does length mean and the district court properly construed length to mean the distance not the direction the position intimate has is that length means lengthwise parallel to the rails as opposed to turn sideways and we pointed out in our briefs how in every instance where the term length is used in the specification and even in other claims it's used to refer to the distance of the whatever it happens to be that being described not the orientation or direction an orientation or direction is referred to there's a specific mention of that so we think the plain meeting was properly construed by the district court and we've also raised as an alternate ground for a firmance the doctrine of equivalence issue on this extend the length limitation we do think it's it's properly raised on appeal there was an issue in the intimate reply brief as to whether we properly appealed it what we timely appealed from the only appealable order in this case and this is an appropriate basis to support a finding of no infringement and year there was an amendment for purposes of that ability festo applies and there's been no argument by intimate at any stage that any of the festo exceptions apply so there's a complete R to the is the conduct just as the technical is the they talk about the conducting fin in the accused device is the conducting fin on the accused device the same thing is the conducting part that we're talking about the point right that the fin yeah the fin is the same thing as the conducting part the entire fin is coated with conductive material what's confusing is the term conducting it actually doesn't conduct anything does it's just an inner piece of metal isn't that right the coated it is in your honor however when passing through the flux field generated by the magnets it is the thing that creates the breaking force so it's kind of a chicken and egg issue there can I go back to them just one question on the magnetic intermediate issue sure if we get past the point where magnets can be intermediaries and we sort of skip that we got into a little discussion with the other aside about then the question of infringement if we we've we're if we were to change the claim construction and do you agree the other side said that it's not necessary it's not required that just the magnetic elements create the necessary flux because the intermediaries can also contribute to that and that yeah as I understood the other side thought that was clear is there any dispute on that this is well yeah I think the enrichment analysis whether or not in the accused device one I I would have thought that it's the man again the accused device in order to establish infringement you have to establish the magnetic elements create the necessary flux and the other side said no no no no no it's clear that the intermediaries can contribute to the flux maybe I misunderstood but you heard no I think that's that's the issue I think to some extent the district court did in rejecting this mean breaking force argument the district court did get to that it said look the the issue on the intermediary is is not whether you know it provides less breaking force than the other magnets there's there's no disclosure of the patent whatsoever of the intermediary providing a breaking force so our view is that if the you know we would have to really take a much closer look at the whole operation of the of the device if we were to have a different construction there but the extent the length issue certainly gives an alternate ground for a firm and I one one question just posted you asked regarding mr. Probonics testimony on alternating an opposite I didn't want to address that he testified that the magnets on the other rail from the you know the two carry rails the magnets from the other rail in the accused device are not opposite polarity and frankly he he preferred to alternating an opposite but when he was giving his answer explaining exactly what was done in the accused device and he said no we we don't have alternating we don't have opposite he was talking about the magnets on the other rail not the issue that's before this court which is within a given rail you know is there is there adjacent magnets of alternating polarity I'd like to touch on the the rule 11 issue briefly the this report initially had awarded sanctions and the basis for that was that there was not a reasonable prefiling inquiry the reason being is that the prefiling investigation revealed no information about the orientation of the magnets in the accused device and even under intimate claim construction knowing that orientation of the of the magnets is critical to them and we have an unusual situation where the plaintiff actually admitted that from the photographs that they took they couldn't determine what the orientation of the magnets were and what ultimately happened in the district court reconsidering is it weighted the quantity of efforts that the plaintiff put into the prefiling investigation and looked at the quantity versus the quality none of the rule 11 standard it's an objectively reasonable standard and from that point of view there just was no evidence about the orientation of the magnets from which the plaintiff could have made a reasonable conclusion that there was infringement and the standard in the reconsideration order which looked at the totality of the plaintiff's efforts was the wrong legal standard and the the district court can supply the Antonius decision and what's unusual here is that we know because the only difference between the original decision and the decision on reconsideration was the court applying a different legal standard there was no additional factual evidence of the plaintiff's investigation presented so we know that that legal standard in this case was dispositive of the sanctions issue and this court should clarify that the standard is not just one of the rating on the amount of time that was spent or the amount effort that was spent if there are claim limitations that the prefiling investigation does not reveal that can't be an objectively reasonable investigation and the decisions in view and June support that very now I guess here what happened was the product was observed from a distance and from a distance the particular magnetic orientation couldn't be discerned plaintiff admits as much and as a result we have those sanctions are appropriate thank you mr. Skanga thank you mr. Ward you have three minutes remaining thank you Your Honor going to the alternating polarity argument and your honor to address your point about mr. Pribonix testimony I will read it to you from page j a 1370 the question posed to mr. Pribonix was so as you understand it the term alternating polarities means exact opposite polarities and now we're talking about as used in the 350 patent and he says yes it wasn't about reverse polarities it wasn't about different polarities he was asked what does alternating polarities mean and because as he admitted there are only two polarities in north polarity and a south polarity in magnet alternating polarities means opposite and that's how it's used in the 350 patent that's what he admitted to in his deposition and that is what is justified by the intrinsic evidence as well throughout these specifications and the claim language can I just just do quickly on the length of the fixed device part yes if we were to accept the court's claim construction which you challenge I is it still your view that there's some genuine issue of fact with respect to literal infringement on the accused devices again we accept the district court's claim construction that the rail has to run along the track if you accept the district court's opinion that the claim construction that the rail must go run from the very beginning to the very end of the track then on the literal infringement no there's no reason to go back to the district court I'm drawn or because they're the accused product does not run from end to end however as we previously discussed there are other disclosed embodiments of this particular invention the bodyman of four for example or a railroad car a railroad or sorry roller coaster ride where the rail is attached to the car and is much shorter so it necessarily cannot extend end to end of the track your honor as far as the doctrine of equivalence argument that is now being raised by magnetar it is not if you look into in the red brief in their cross appeal the only issue raised in the cross appeal in the red brief is the rule 11 sanctions issue and it is not an alternative grounds for granting for for this appeal because what we are challenging intimate is the grant of summary judgment for literal infringement on the length term we have not challenged the district court's denial of summary judgment for infringement under the doctrine of equivalence that would be separate if you reverse that you would be modifying and amending the judgment not just of affirming the present judgment in the district court therefore it was required to be something that had to be cross appealed it wasn't and necessarily cannot be relied upon by magnetar here likewise magnetar never raised before the district court the argument of what do the opposite opposing magnets look like that was never a factual issue or basis for infringement at the district court level thank you thank you mr. Ward I think all times expired so we thank counsel both sides the next case is Snyder versus opn

First case this morning is intimate versus magnetar Mr. Ward. Thank you. Good morning and may you please the court. To win on this appeal intimate must prove one thing, demonstrate one thing to this court. And that's that the district court aired when it interpreted the claim one element related to an intermediary. And the court district court did so air in at least one of two ways. What's an intermediate and why is it necessary in this claim? And in this claim your honor the intermediary serves the purpose to provide spacing and support for the magnets of the magnet elements which are the magnets with alternating polarities. In physics reasons there has to be spacing between those two magnets of alternating polarities and also these magnets are so strong that if there's not something in between those two magnets they tend to spin into a new location. Okay the significance of a hallbacher ray is that it creates a one-sided flux. And in the hallbacher ray all of the magnets are participating in creating that one-sided flux. Given that can any of the magnets in the hallbacher ray be considered intermediaries? They're all participating as magnetic elements to create a one-sided flux. How do you therefore as you must say that some of the magnets are nonetheless intermediaries? Because the claim language tells us that they are your honor. The claim language provides that the magnet elements are those elements that are part of the plurality of magnets along the carrying rail of alternating polarities. Those are the only magnet elements that we're looking at for magnet elements. So in a hallbacher ray where the magnets that are in between those alternating polarities are parallel to the carrying rail as opposed to perpendicular they are not of alternating polarity. And because they are not alternating polarity they are not magnet elements as defined by claim one, the specific language of claim one. What's the significance of the disclosure in the pattern that says the flux must run crosswise? Wouldn't that mean that the magnets having their north and south pole pointing across the air gap would be considered magnetic elements? The magnet elements that are of opposite polarity along both carrying rails are those magnet elements. And we agree your honor that is the flux that is created across that air gap that provides the main breaking force in these rides. There's nothing in evidence or factually submitted to the district court. But in the hallbacher ray those magnets with the polarity running parallel with the track itself are nonetheless participating in that crosswise creation of an eddy current. That is a factual contention by magnetar that is in dispute. That's just realities of how a hallbacher ray works. I mean you can get that off. Excuse me, Wikipedia. That is true your honor. But even though it's participating they're not providing the main breaking force. And there's nothing in the claim language, claim one language or the specifications that would exclude a magnet as being an intermediary no matter what the arrangement of that magnet is. The claim language says look to the magnetic array. Find those magnets that have opposite polarity, one pointing with the north pole pointing up, the next with the south pole pointing up and so on. And in the things in between those two magnets. But you argue, excuse me for interrupting. You agreed with the district court that the intermediary is just something between the magnetic elements. And then you also argue that that's something between the magnetic elements does not participate in the flux. Now, doesn't that seem to matter? We did not argue with your honor with all due respect that does not participate in the flux what we argued was that those alternating polarity magnets create the main breaking force. That was the phrase that we use. We're not saying that whatever the intermediary is cannot participate in providing the flux. That's nowhere in the claim language. It's nowhere in the specifications, your honor. So those were not specifically excluded either by argument or by the claim language or the intrinsic evidence here. Instead, your honor, the patent language tells us to look for those alternating polarity magnets. And there's no dispute that alternating means opposite. There's only two poles in a magnet, one north and one south. And along those carrying rails, those magnets that we're told to look for, look between in order to find the intermediary are those adjacent pairs on the same rail. One with a north facing up and next with the south facing up. So it's your theory that these alternating magnets remain adjacent even though there's another magnet between them. Is that how you read it? It's yes, your honor. And it's because the language is alternating pairs of said plurality of magnet elements. And magnet elements does not include all magnets, but instead it's defined in the prior claim element to be only those magnets of alternating polarity. And the term adjacent is meant to tell you to look along the same carrying rail. Because by its own claim language, we're saying there's an intermediary in between those alternating polarity magnets so they cannot necessarily abut. They cannot be next to each other. Well, let me ask you about the flux. You mentioned the flux before. Yes. Even assuming we were to accept your view of intermediaries, allowing them to be magnets. You're not saying the case is over then on the infringement right. Is there something left? Would we have to, wouldn't we have to remand it to the district court for them to determine whether or not there's infringement and the accused devices? In other words, whether the magneted elements create the necessary flux? Well, your honor. First of all, you would not necessarily have to remand for that purpose because it's undisputed what the hall back array looks like that's used in the magnetart brakes. And that shows that those intervening or intermediary magnets are of lateral or parallel to the polarities or parallel to the carrying rail. And if the court finds that there's nothing in the claim language or specifications that requires or limits the intermediary from participating in a flux in any way, then you don't have to remand for the purpose of determining whether there's an infringement issue still. Instead, you could remand with the direction that there's a to reverse the judgment of in the literal infringement, summary judgment of literal infringement on this particular claim. Now, on that point of whether or not the intermediaries can contribute to the flux, nobody's ever, I mean, the district court didn't reach that issue on plain construction. You're asking us to decide for the first time, construe the claim so that they can contribute to the flux, correct? I agree, Your Honor, that the district court was not asked to determine if, as part of the claim construction, the contribution to flux of an intermediary is important or not. The other basis, in addition to the fact that the district court did not look to determine what the magnet elements were, which magnets were supposed to look at. The district court also appears to have, although it states that it did not, bring a limitation from the specifications, read that into the claim one language, and that limitation was that that intermediary is non-magnetic. In response, Intimid argued to the district court that the intermediary can be magnetic, and the district court in response, and in rejecting that argument stated and quoted the portion of the specification that described a figure showing a non-magnetic intermediary. Then based upon that denied magnetar, or Intimid's interpretation, that the intervening intermediary can be magnetic. Now, if you look at the claim one and claim two languages, it's clear that the inventors did not intend to limit the intermediary and claim one to non-magnetic intermediaries. There's no such limitation in the claim language, it just says, and intermediary. And more specifically, in claim two, is a dependent claim with only one additional limitation. And that additional limitation is only that that intermediary is non-magnetic. I spend a lot of time in the scholarship of patent law, and we all scoff at the reverse doctrine of equivalence. Is this the one case in a million where the reverse doctrine of equivalence applies? Where, indeed, we do have a magnetic intermediary that fits within the language of the claim, but the claim operates, the accused device operates in such a different way that it is not infringing. By the hallmark of a way, creating a one-sided flux and the polarities that are parallel to the track participating in the creation of that eddy current in a way that is not anticipated by the claim. This is not the one in the million case, Your Honor. Why? It's not the one in the million case because that the claim language anticipates and provides for a magnetic or an intermediary that may be magnetic, including a magnet. Now, magnetar argues in its brief that although claim one would cover a magnetic intermediary, that would be steel or another metal that may be magnetic, there's nothing in the claim language or specification that would slice out that pours carve out an exception of what is magnetic and what is not magnetic for the purposes of this claim. Further, Your Honor, when you refer to a one-sided flux, the flux has to go across that air gap in order to provide a braking force, and that's what this patent is about. Having that flux go across that air gap and slow down the roller coaster ride, slow down the dropping tower ride, so it operates in the exact same way, Your Honor. It may provide additional direction or additional compliments to the braking according to magnetar, but Your Honor, it does provide flux across the gap. What was this patent of translation from? It was translated from a German patent. Okay. It reads like it. The other point that we raise in the appeal, Your Honor, is not necessary for intimate prevail on appeal, but because we are regarding the length limitation in claim one. The district court has already found that it denies summary judgment for infringement under the doctrine of equivalence related to the length limitation. That is not going to appeal, that is not going to cross appeal. The length that we're arguing about in our brief relates to the district court's judgment of literal non-infringement, and in applying that, of course, its interpretation or its misinterpreted conductive rail for conducting part. We would argue that that needs to go back to the district court to determine if to reevaluate based on the proper claim language, whether or not there's literal non-infringement. Well, as I read the patent, or at least as I tried to understand it, the conductive part is that part of the conductive rail that has the conductive covering. The conducting part is that's correct. So the conductive rail is the longer part. So it's all one unit, except part of the conductive rail, conducting rail is and that's the coating. That's correct. Now, we don't have in the record, at least I couldn't find a full description of the accused device. So I'm puzzled about this length problem, that is in the context of a roller coaster, is it your perception of this whole device that the rail will go, the conductive rail will go the whole length of the roller coaster railing, or is it just a piece at the end where the car comes into the rest stop? How does that work? It works in this way in a roller coaster implementation. The magnets are actually on the track within 100 or 200 yards of the station. The rail, the conductive rail is on the passenger car. So it cannot extend the length of the roller coaster ride. It only extends the length of the passenger car. At most, it may be shorter than the length of the passenger car, which is why you're on it. We disagree with the courts and the district courts interpretation that length means it has to travel from end to end of any ride, whether it be a tower ride or a roller coaster ride. And I see them about to run out of time, but I'd like to reserve a little time I have left for the rebuttal time. Would you give Mr. Senga? Senga. Thank you very much. And the extra three minute should he need to use it. Morning, Your Honours. The intermediary claim limitation, we think it was correctly interpreted by the district court and the district court's interpretation did not turn on whether the intermediary was magnetic or not. It simply ruled that the intermediary is a member disposed between others and in making that interpretation is properly. If that's the case, if the intermediary is just in this claim, something disposed between the magnets of opposite polarity, then even if that thing which is between the magnets of opposing polarity happens to be another magnet that is participating in the flux, doesn't it still fall within the scope of the claim? Well, Your Honour, I would say no. The reason being is that the claim language says that the adjacent pairs in between which the intermediaries is disposed. Those are adjacent pairs of magnets of alternating polarity. The claim in some instances refers to opposite polarity when it refers to the magnets across the gap, one rail to another rail, but within the same rail, the plurality of magnets is described as magnet elements mounted on each upset carrying rails with alternating polarities. Now, that is a broader term than opposite polarities. As we know from the Hallback Array design, the polarity of the magnets does not have to change to be 180 degrees opposite. The polarity of the magnet can change incrementally by 45 degrees or 90 degrees. Are you saying that in the that this middle magnet is an alternating magnet? Is that what your argument is? Correct. The one that's pointing up instead of pointing sideways. Well, we have one magnet pointing up directly, adjacent to it is a magnet pointing sideways. That is an alternating polarity and we have nothing in between them. The record is clear that those magnets are abutting one another directly. All of this is based on your assumption that alternating and opposite are not equivalent. Alternating does not mean opposite. Alternating does not mean opposite. I mean, Mr. Red the briefs, but I thought the other side at least was even citing testimony by one of your witnesses that said that alternating and opposite are the same things. Whether I'm right or not about that. Is there anything in the record to establish that? Yes, you're going to have to claim itself where it uses the different terms in different contexts and uses opposite polarity to refer to the magnets across the rail versus alternating polarities to refer to the magnets within the rail. Number one, number two, in the specification where it describes the intermediary, it again uses different terms. It says that the polarity can be reversed where it can you? I'm referring to the specification here at column 4 line 22. It says the polarity of the magnet elements are reversed along the direction of the carrying rail. Now that would be analogous to opposite reverse meaning 180 degrees apart. Now it goes on, and it says that the magnets always have a different polarity, different meaning something different, but not necessarily 180 degrees apart. And so the specification uses different terms, likewise in the claim itself. It uses different terms and the presumption is that the different terms at different meaning. With respect to your honor's question. Why would they? Why would they? Why would the draft admittedly this an interpretation problem perhaps even a problem of converting this patent from German to English? Why would they want to use two different terms meaning two different things to describe the same features? That's what I'm puzzled about. Well the only answer I could give is that presumably the alternating term is broader. They will then where possible they wanted to get whatever breadth that they could and that if there were some, against some change in polarity but not 180 degree change that they wanted to cover that. But we are left with the record here that they established and from the record we see that they use different terms and it appears that they intended to have different meanings and certainly if they wanted to cover something broader they would give the benefit of that record. So if we were to disagree with you on that point, is that the end of the story for you? Well, no. So we disagree on this alternating means opposite. What's left of your theory on the claim line which I'm intermediary? On intermediary? Well we certainly can have a reverse dr. Novakowlins argument that I could address but on the basic concept of whether you know something whether there is an intermediary you could presumably determine that the magnet could be the intermediary. I will note however there's no disclosure in the specification of an intermediary that is anything other than non-magnetic. Why? Why? Why? Why? Why? Isn't the claim differentiation itself a disclosure? You've got magnetic claimed as a dependent claim. Why doesn't that claim differentiation argument itself disclose a broader meaning for an intermediary? That includes magnetic as well as non-magnetic elements. Two reasons you're on are number one that dependent claim was added during prosecution. It was not part of the original disclosure upon filing. So it would be new matter. And secondly, we have a question as to whether claim differentiation is more than just a guideline in the course of the claim construction process or whether it is. So we have said in Phillips that the one place where it may have application is in the instance of dependent claim enlightening the breadth of the independent. Well and you're certainly you know as I'm not saying it should not be considered all I'm saying is that I don't think it rises to the level of creating disclosure in the specification since it was something added during the prosecution. Doesn't figure six by the way show the lack of a intermediary? That is an embodiment in which it appears that the magnets are directly in contact with one another and all the more reason why when they claimed an intermediary affirmatively that the public should be entitled to rely on that narrow scope of the claim particularly in view of the file history where the original claim submitted was merely three lines long. Well but if that's an embodiment we need to construe the claim to cover that embodiment right? Well you're on our I don't think that we have to construe the claim to cover every single embodiment that's disclosed. Clearly the preferred embodiment is one in which there is some type of non-magnetic intermediary that's what the bulk of disclosure is about but the you know of course a patent owner would love to have the broadest claim that covers every conceivable embodiment but up here we've got the patent owner drafting the claims to the specific. Isn't your device just an improvement? Well we do think it is better your honor but I don't think it's an improvement I do think it is it is a change in kind because it has done something that in fact the patent owner didn't didn't really contemplate initially Mr. Ward said in his argument that the whole purpose of the intermediary was to deal with the issue of the magnet spinning relative to one another. What magnet art did it was instead of using it in a intermediary to solve that problem it encased the magnets in a tube and the tube provided the resistance to the spinning of the magnets so it really addresses the problem differently not only in the way the flux is created but also in the way the issue of the spinning of the magnets relative to each other. If anyone limitation is missing then there's no infringement obviously talk a little bit about this length issue which we just got to at the end of your your opponents discussion I'm interested in how I can't quite figure out how the length issue works in the context of a roller coaster. Roll across the okay what happened in the roller coaster embodiment and this is described in Mr. Pribonix declaration at J.A. 304 in the roller coaster the conductive part and rail are attached to the car that the passenger sit in. It is in the accused device about three feet long for each car the ride itself is approximately a thousand feet long. The magnets the array of magnets are fixed they're mounted on the ride itself in the stationary part of the ride and as the car moves past the area where you want to stop the car the fin on the car passes through the magnets in our is this fin energized? Well no the fin is just a piece of metal has a metal coating it's it is the what's referred to as the conducting part or conducting rail and it is the coating the conductive coating is co extensive with the the entire rail so it is not independently energized the magnets are energized correct the magnets provide the the energy in that scenario and so there's there was no debate at the district court level that the conducting rail in the accused products was substantially shorter than the end-to-end length of the ride and the real issue was a was a pure legal claim construction issue over what does length mean and the district court properly construed length to mean the distance not the direction the position intimate has is that length means lengthwise parallel to the rails as opposed to turn sideways and we pointed out in our briefs how in every instance where the term length is used in the specification and even in other claims it's used to refer to the distance of the whatever it happens to be that being described not the orientation or direction an orientation or direction is referred to there's a specific mention of that so we think the plain meeting was properly construed by the district court and we've also raised as an alternate ground for a firmance the doctrine of equivalence issue on this extend the length limitation we do think it's it's properly raised on appeal there was an issue in the intimate reply brief as to whether we properly appealed it what we timely appealed from the only appealable order in this case and this is an appropriate basis to support a finding of no infringement and year there was an amendment for purposes of that ability festo applies and there's been no argument by intimate at any stage that any of the festo exceptions apply so there's a complete R to the is the conduct just as the technical is the they talk about the conducting fin in the accused device is the conducting fin on the accused device the same thing is the conducting part that we're talking about the point right that the fin yeah the fin is the same thing as the conducting part the entire fin is coated with conductive material what's confusing is the term conducting it actually doesn't conduct anything does it's just an inner piece of metal isn't that right the coated it is in your honor however when passing through the flux field generated by the magnets it is the thing that creates the breaking force so it's kind of a chicken and egg issue there can I go back to them just one question on the magnetic intermediate issue sure if we get past the point where magnets can be intermediaries and we sort of skip that we got into a little discussion with the other aside about then the question of infringement if we we've we're if we were to change the claim construction and do you agree the other side said that it's not necessary it's not required that just the magnetic elements create the necessary flux because the intermediaries can also contribute to that and that yeah as I understood the other side thought that was clear is there any dispute on that this is well yeah I think the enrichment analysis whether or not in the accused device one I I would have thought that it's the man again the accused device in order to establish infringement you have to establish the magnetic elements create the necessary flux and the other side said no no no no no it's clear that the intermediaries can contribute to the flux maybe I misunderstood but you heard no I think that's that's the issue I think to some extent the district court did in rejecting this mean breaking force argument the district court did get to that it said look the the issue on the intermediary is is not whether you know it provides less breaking force than the other magnets there's there's no disclosure of the patent whatsoever of the intermediary providing a breaking force so our view is that if the you know we would have to really take a much closer look at the whole operation of the of the device if we were to have a different construction there but the extent the length issue certainly gives an alternate ground for a firm and I one one question just posted you asked regarding mr. Probonics testimony on alternating an opposite I didn't want to address that he testified that the magnets on the other rail from the you know the two carry rails the magnets from the other rail in the accused device are not opposite polarity and frankly he he preferred to alternating an opposite but when he was giving his answer explaining exactly what was done in the accused device and he said no we we don't have alternating we don't have opposite he was talking about the magnets on the other rail not the issue that's before this court which is within a given rail you know is there is there adjacent magnets of alternating polarity I'd like to touch on the the rule 11 issue briefly the this report initially had awarded sanctions and the basis for that was that there was not a reasonable prefiling inquiry the reason being is that the prefiling investigation revealed no information about the orientation of the magnets in the accused device and even under intimate claim construction knowing that orientation of the of the magnets is critical to them and we have an unusual situation where the plaintiff actually admitted that from the photographs that they took they couldn't determine what the orientation of the magnets were and what ultimately happened in the district court reconsidering is it weighted the quantity of efforts that the plaintiff put into the prefiling investigation and looked at the quantity versus the quality none of the rule 11 standard it's an objectively reasonable standard and from that point of view there just was no evidence about the orientation of the magnets from which the plaintiff could have made a reasonable conclusion that there was infringement and the standard in the reconsideration order which looked at the totality of the plaintiff's efforts was the wrong legal standard and the the district court can supply the Antonius decision and what's unusual here is that we know because the only difference between the original decision and the decision on reconsideration was the court applying a different legal standard there was no additional factual evidence of the plaintiff's investigation presented so we know that that legal standard in this case was dispositive of the sanctions issue and this court should clarify that the standard is not just one of the rating on the amount of time that was spent or the amount effort that was spent if there are claim limitations that the prefiling investigation does not reveal that can't be an objectively reasonable investigation and the decisions in view and June support that very now I guess here what happened was the product was observed from a distance and from a distance the particular magnetic orientation couldn't be discerned plaintiff admits as much and as a result we have those sanctions are appropriate thank you mr. Skanga thank you mr. Ward you have three minutes remaining thank you Your Honor going to the alternating polarity argument and your honor to address your point about mr. Pribonix testimony I will read it to you from page j a 1370 the question posed to mr. Pribonix was so as you understand it the term alternating polarities means exact opposite polarities and now we're talking about as used in the 350 patent and he says yes it wasn't about reverse polarities it wasn't about different polarities he was asked what does alternating polarities mean and because as he admitted there are only two polarities in north polarity and a south polarity in magnet alternating polarities means opposite and that's how it's used in the 350 patent that's what he admitted to in his deposition and that is what is justified by the intrinsic evidence as well throughout these specifications and the claim language can I just just do quickly on the length of the fixed device part yes if we were to accept the court's claim construction which you challenge I is it still your view that there's some genuine issue of fact with respect to literal infringement on the accused devices again we accept the district court's claim construction that the rail has to run along the track if you accept the district court's opinion that the claim construction that the rail must go run from the very beginning to the very end of the track then on the literal infringement no there's no reason to go back to the district court I'm drawn or because they're the accused product does not run from end to end however as we previously discussed there are other disclosed embodiments of this particular invention the bodyman of four for example or a railroad car a railroad or sorry roller coaster ride where the rail is attached to the car and is much shorter so it necessarily cannot extend end to end of the track your honor as far as the doctrine of equivalence argument that is now being raised by magnetar it is not if you look into in the red brief in their cross appeal the only issue raised in the cross appeal in the red brief is the rule 11 sanctions issue and it is not an alternative grounds for granting for for this appeal because what we are challenging intimate is the grant of summary judgment for literal infringement on the length term we have not challenged the district court's denial of summary judgment for infringement under the doctrine of equivalence that would be separate if you reverse that you would be modifying and amending the judgment not just of affirming the present judgment in the district court therefore it was required to be something that had to be cross appealed it wasn't and necessarily cannot be relied upon by magnetar here likewise magnetar never raised before the district court the argument of what do the opposite opposing magnets look like that was never a factual issue or basis for infringement at the district court level thank you thank you mr. Ward I think all times expired so we thank counsel both sides the next case is Snyder versus op