Legal Case Summary

KIMBERLY-CLARK v. FIRST QUALITY

Date Argued: Wed Oct 05 2011
Case Number: 59894
Docket Number: 2602613
Judges:Not available
Duration: 37 minutes
Court Name: Federal Circuit

Case Summary

**Case Summary: Kimberly-Clark Corp. v. First Quality Baby Products, LLC, Docket No. 2602613** **Court:** United States District Court for the Western District of Wisconsin **Filing Date:** [Exact date not provided] **Parties Involved:** - **Plaintiff:** Kimberly-Clark Corporation - **Defendant:** First Quality Baby Products, LLC **Background:** This case involves a dispute between two companies in the personal care industry, primarily focusing on the production and marketing of disposable diapers. Kimberly-Clark, a leading manufacturer known for its innovative products, alleges that First Quality has infringed on several of its patents related to diaper technology. **Legal Issue:** Kimberly-Clark claims that First Quality's products violate intellectual property laws by utilizing patented technology without authorization. The patents in question cover specific designs and manufacturing processes that Kimberly-Clark argues are critical to the quality and functionality of its products. **Arguments:** - **Plaintiff's Argument:** Kimberly-Clark contends that it has developed unique technology that grants it a competitive edge in the market. The company asserts that the infringement has unfairly harmed its business and market share. - **Defendant's Argument:** First Quality denies any infringement, arguing that their products are independently developed and do not fall under the claims of the asserted patents. They may also contest the validity of the patents, claiming that they are either overly broad or not novel. **Procedural Posture:** The case has moved through preliminary motions, including discovery disputes, claim construction hearings, and possibly motions for summary judgment. Both parties have likely engaged in extensive fact and expert discovery to support their positions. **Current Status:** The court is reviewing the evidence submitted and will soon issue rulings on any pending motions. A trial date may be scheduled depending on the outcome of these motions. **Conclusion:** The resolution of Kimberly-Clark Corp. v. First Quality Baby Products, LLC will have significant implications for patent law in the consumer products sector and may set precedents related to innovation, competition, and intellectual property rights in the manufacturing industry. **Next Steps:** Parties await the court's rulings on the submitted motions, with potential implications for settlements or a forthcoming trial. (Note: This summary is a hypothetical interpretation based on typical case structures and concepts. For accurate details, please refer to legal documents or court records related to the actual case.)

KIMBERLY-CLARK v. FIRST QUALITY


Oral Audio Transcript(Beta version)

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our in validity position based on a claim construction of pre-facent. And he has since reversed himself

. So the only reason that he had for all of the claims but one for rejecting our in validity defense is now gone. So would he he changed his construction so pre-facent he had previously said it covers only the refacent of the training pants. Exactly. It covers permanent and refacentable and our prior art was permanent. And he rejected our prior art because it was permanent and it didn't meet the pre-facent claim limitation. So he he has reversed himself and therefore the one reason that he gave the only reason that he gave for all of the claims except one of the 143 patent is gone. Now that leaves only claim 68, which is a dependent claim. And that claim, the main claim says you want to tension the side panels of the diaper. And claim 68 says tension it by pulling it apart. Now to me that seems extremely obvious as how else would you do it? And in fact there's testimony from both experts on this. So I don't really think that can rise to the level of supporting a preliminary injunction on the one for three patent. I think we have now established a substantial question of patentability as to all of these sort of claims. Okay. So in the light of those two developments, your suggestion is that you have focus on the other patents. Yes. I'm going to go there right now

. Just to finish up on the one for three patent on non-infringement, there's also a claim construction issue where the court construed inspecting a engagement seam to mean capturing an image. And that again just that can't be a right claim construction because you have some claims that say capturing an image. You have other claims and say inspecting an image. And then you have some claims that say both claim 73 says both. What's the status of the proceedings below beyond just the we're going through discovery right now. So I'd like to now move to the 939 patent, which is the sheer stress patent. And the key issue on invalidity was one reference, the Linquist reference. And does it teach a sheer stress and does it teach promoting increased engagement. And here we believe the judge just really just misread the reference. The reference clearly teaches an open and recloseable patent. We did both sides had expert testimony. Yes. And the court, how I've accredited the other side's expert. He did. He did. And you're on I think this is a case like Amazon and like Abbott where the court just misread the reference and the expert for the other side misread the reference

. Well, coming by, Mr. Reading, sure. It seems to me that the claim device achieves the sharing by pulling an opposite direction. And it seems to me that the Linquist reference achieves somewhat the same purpose or tries to with this rollers that are going in the same direction. Well, wrong about that. I the what there's been a new development on that, Your Honor, in the claim construction that that the court just decided, he actually construed sheer stress to just mean a relative, a force generally parallel to the face of the material. He doesn't say any more than it has to be an opposite direction. It just has to be generally parallel. And that makes sense, Your Honor, because in the patent, the, the, and I can give you the page in the decision if you need that. The patent gives several different ways of doing a sheer stress. You can pull it in opposite directions. You can hold one and pull the other. You can hold the other and pull one. So there were multiple ways of doing it. And the, the, the going in the same direction as Linquist does. I mean, you dispute that Linquist goes in the same direction

. Linquist generates a sheer stress the same way if, if you take a, a bunch of pieces of paper and you push it like this, each piece of paper is moving relative to the other parallel to the face of the material. And so you're getting the sheer stress. The court's definition is now a force generally parallel to the face of the material. And the, the Linquist specifically says relative displacement in a direction substantially parallel to the surface of the article. The teaching is exactly the same. At best, the, the Linquist may give compression as well as sheer, but it certainly gives sheer under the definition that the court has now adopted in the new claim construction. The other problem is, is that the prosecution here is very relevant. The, the, the claim of the claims of 939 patent were not allowed because the sheer stress was new. In fact, it was a prior reference, machista that applied to sheer stress manually. And the court said, well, the, the panel office said, well, they didn't do it mechanically. So we'll give you a patent. Linquist clearly does it mechanically with these rollers. The other thing that Linquist teaches is, it says to do this to achieve a significantly increased retention force. That's a quote right out of Linquist. And the court missed that. The court said, oh, I don't think it's a sheer stress and it doesn't say anything about increasing retention force

. Now, while he focused on this, this alleged failure of Linquist to teach a retention force on validity, and said we didn't show validity, even though the reference says that, on infringement, he never made a finding that we had the increased sheer stress, or he, his only, the increased engagement. His only, he, he, he made no findings that what first quality did promoted increased engagement between the fastening components. And in fact, at Pag ref 19 in the court's order, the court even says that first quality contests this very same issue. And, and we had expert testimony on it at a 4950, 453. And then the court never made a finding on it. So there's, there's no support in the court's order for a finding of a, a, that there's a substantial, there's a certainly substantial question of, on, on invalid, there's a substantial question on non infringement, because there's no finding that a critical element of the claim is found in first quality's process. Interestingly, again, the court said, oh, the reference, um, doesn't teach promoting engagement strength, but it did. It, it said it, it, it, it, it said exactly that. And then when it came to first quality, the court said, first quality says they don't promote engagement strength, and, and they don't do a sheer stress. And they're not doing about promoting engagement stress. I'd like to move to the 316 tucking patent. And here again, I think it's just, it's, it's the, the evidence that was put forward just doesn't support the, the infringement, uh, finding by, uh, the judge, again on a preliminary injunction hearing on an expedited basis with, with very little discovery and time. But there's a key limitation in the tucking patent, the 316 tucking patent. And that is that the, the vacuum width has to be equal to the folded width. So the width of the vacuum has to be equal to the folded width. The best, this is Kimberly Clark's evidence is red breathed at page 58

. And they show that they, they say these are the longitudinal all lines. And, and so there's a vacuum up here that's holding up the training pan. And they say, okay, this is, this must be the tucking station and this must be where the longitudinal folds are. So these longitudinal folds, um, the vacuum are being formed by this vacuum and they're equal, the vacuum is equal to the longitudinal fold. There's only one problem. This is a longitudinal fold. This is from the blue briefed page 81. It's nowhere near as wide as the vacuum. The, the, what you're looking at, and you can see this is, this is the, the, this whole portion here and this whole portion here is not equal, is, is tucked in, it is not the width. So this was the evidence. And, you know, I first briefly pointed this out, Kimberly Clark's saying, oh well, the judge looked at a lot of things. He looked at a video. He looked at this. He looked at that. But then Casey's sighted the same picture. All of the evidence, this is the best, this is the picture

. This is the best that they could come up with to show this. And it, and it doesn't show it. And so it reads on prior art. We, what, no, here we're saying is we don't in French. In other words, yeah, to get it, but not, can we turn to the validity questions? Yes. Okay. On the validity question, the difference between you and the prior art is the length of this, whatever you call it, the vacuum zone. On, on validity, we showed, on the validity, we showed, we had prior art where the vacuum zone was equal to the fold, the, the, the folded width. So we, in the, in the, in the prior art, we showed it's the driver's machine. We showed the driver's machine that had a vacuum width that was equal to the folded width. So that what, what you would see in the driver's machine is, is that what, before it was talked, is it would look like this. The, the vacuum on top would, in essence, define the fold lines. And then it would be tucked in. And your, your fold width would be equal to the vacuum width. That is the reference that we put forward. The judge rejected it because he said, well, it's, it's not permanent

. It's, it's, again, it's this difference between permanent side seals and refassable side seals. Which, again, we don't believe is, is an appropriate distinction to make. The, the, interestingly, in the reexam on the 187 patent examiner cited a bunch of references and said it's, it would be obvious to interchange refassable side seams with non-refassable side seams. And many of these patents actually talk about that the invention applies to both. So on, on validity, that's the issue. On infringement, there's no evidence because this is the best picture they have. And this width is just not equal to this width, it just isn't. Now, I'd like to talk about the, the, I'm in my rebuttal time. So I think I'll stop. Thank you. Thank you. Thank you, Your Honor. May it please the court. As the court knows, the district court conducted an extensive evidentiary hearing here heard from multiple witnesses had, alumnus written submissions made express credibility determinations and, and, and made detailed findings of fact, finding a substantial likelihood that first-quality infringes and that the asserted claims of these patents are not, not invalid. Now, Mr. George mentioned two recent developments, and let me start by talking about those

. The first is, in particular, why would respect the 187 patent? Why doesn't the first office action raise a substantial question of patentability with respect to that patent? Well, it, it doesn't, it doesn't in the preliminary injunction sense, that is, it doesn't show that their invalidity defenses have substantial merit. Because first of all, it's, it's a first office action. Kimberly Clark has not even responded. What the patent office did was take at face value declarations from, from, for example, experts, a first-quality experts, that the district court saw and heard and rejected their testimony. So for that reason, we think the first office action really is of no moment here, precisely because it's preliminary, the standards are different, and in fact, first-quality saw a stay of the lower court proceedings based on the reexam and the district court rejected that for, for, for precisely those reasons. Well, what, what supports the notion that the first office action is just a rubber stamp? Oh, well, I'm not saying it's a rubber stamp, Your Honor, but the, the patent office is considering one side of the, one side of the case. And so they're saying one side of the case renders it in val. Why doesn't that raise a substantial question? I mean, you can have a substantial question as a result of conflicting factual evidence, completely legal theories, right? Sure. So it seems to be, as though they've examined one side's evidence and says it renders it in val. Why doesn't that render a substantial question? Well, it, it, it doesn't, Your Honor, because in this case, again, you're, you're dealing with a hearing where the district court made credibility determinations based on some of the same, precisely the same evidentiary submissions that the patent office took at face value. Now, the patent office up to this point had no basis not to take them at face value because it hasn't seen the other side. But I, I've also been a final one. And with, with full, full consideration of Kimberly Clark submissions and, and all of that, I mean, I'm, yeah. Then I think it's a closer question than I think maybe, but I think at this stage of the reexamination proceedings, I don't think you can reach that conclusion. Not after you've had an evidentiary hearing with credibility determinations, that a lot of things the patent office has not yet seen. Now, the other recent development that Mr

. George mentioned was the claim construction order that the district court entered recently. Now, as to the one four three patent, that's where the court changed the construction of pre, pre-facent disposable pants. And, and there are a couple of things I'd like to say about that. First of all, with all due respect, we think the court got it right the first time. As we lay out in the brief, that's not going to create a, to eliminate this substantial question that the district court has changed its mind. Well, you're on the district court's second order is not here. The question here is whether the district court's initial construction is- The judicial notice of the second. Well, you can, sure, you can take judicial notice of it, but it's, it's no more than, I mean, it's denoval review anyway. The question is there's a claim construction issue here. And the, the claim construction issue is in this patent, what does pre-facent disposable pants being? And, as we lay out in the brief, the specification consistently refers to the training pants of this invention as having refassible seams. It uses a term, when it's talking about permanent seals, it's, uses terms like bonding and bonded, when it's talking about these refassible seams, that's when it uses the words, fasteners and fasteners and components. In fact, it refers to fascinating components as components that are adaptable for refassible engagement. Then it goes into a three column description of these kinds of refassible systems. So, as I said, we think the district court got it right the first time, but even beyond that, that was not the only basis for the rejection of the invalidity contentions. The district court noted, first of all, that the prior art on which first quality relies, these, the drivers and the GP-3 machines, were not, there, there's no corroboration that those are, in fact, prior art. But you've got a problem trying to transverse that. I mean, the district court said that, but then he went on to say, but they presented some argument and at this stage, since discovery isn't complete, I'm going to go with that. Oh, well, go ahead, I'm sorry. So, you want us to disagree with the district court in terms of whether or not we consider this prior art, is that where you need us to go? No, I, we don't need you to go there, but I think you can go there because what the district court said is exactly that. So, they presented some argument, they presented no evidence, and at this stage are the proceedings, we're not saying that they had to have the clear and convincing corroborating evidence, but at this stage are the proceeding a complete lack of corroborating evidence would be an independent basis to affirm the district court's determination. Well, let's assume that we agree with the district court's latest claim construction, and we agree with the district court that we should consider the TPC, the prior art. Where does that lead to? There's, first of all, he still has two other problems. There is a substantial question whether the TPC-3 machine even had an inspection system at all as the district court noted. At paragraph 37 of its decision, and the evidence on that, their evidence that it had. He did not resolve that, because he didn't need to because of the claim construction. I mean, on the one hand, you're already, we should defer the district court on the other hand, you're saying that in so far as he left something open, we should go ahead and resolve it, but that doesn't seem entirely consistent. Well, the state of play is this, Your Honor. Kimberly Clark presented evidence that the TPC-3 machine did not have an inspection system. First quality evidence that it did consisted entirely of the uncorroborated testimony of Mr. Caldwell. I think he got a hard road, a hoe, if the economy convinced us to sustain an injunction on a different ground in the district court. Well, let me try a different road, then, Your Honor

. I mean, the district court said that, but then he went on to say, but they presented some argument and at this stage, since discovery isn't complete, I'm going to go with that. Oh, well, go ahead, I'm sorry. So, you want us to disagree with the district court in terms of whether or not we consider this prior art, is that where you need us to go? No, I, we don't need you to go there, but I think you can go there because what the district court said is exactly that. So, they presented some argument, they presented no evidence, and at this stage are the proceedings, we're not saying that they had to have the clear and convincing corroborating evidence, but at this stage are the proceeding a complete lack of corroborating evidence would be an independent basis to affirm the district court's determination. Well, let's assume that we agree with the district court's latest claim construction, and we agree with the district court that we should consider the TPC, the prior art. Where does that lead to? There's, first of all, he still has two other problems. There is a substantial question whether the TPC-3 machine even had an inspection system at all as the district court noted. At paragraph 37 of its decision, and the evidence on that, their evidence that it had. He did not resolve that, because he didn't need to because of the claim construction. I mean, on the one hand, you're already, we should defer the district court on the other hand, you're saying that in so far as he left something open, we should go ahead and resolve it, but that doesn't seem entirely consistent. Well, the state of play is this, Your Honor. Kimberly Clark presented evidence that the TPC-3 machine did not have an inspection system. First quality evidence that it did consisted entirely of the uncorroborated testimony of Mr. Caldwell. I think he got a hard road, a hoe, if the economy convinced us to sustain an injunction on a different ground in the district court. Well, let me try a different road, then, Your Honor. Perhaps one that's not as hard. And that's claim 68 of the 143 patent. As Mr. George noted, that has a different limitation or an additional limitation. And that is the requirement that the side panels be pulled in opposite directions to tension of the seam. The court found as a fact that paragraph 18 of its findings, the first quality had failed to show that the TPC-3 machine had that feature. That finding rested squarely on the expert testimony, in particular the testimony of Mr. Butterworth. He explained exactly why it didn't, and that's at 6336 and 6375 to 79 of the joint appendix. And so certainly as to claim 68, the revised claim construction has nothing to do with the reason that the validity of that claim was upheld. Now, Mr. Dr. I thought paragraph, I'm sorry, just to be clear, there are a lot of paths obviously flowing around here. The paragraph 18 dealt with the 316 patent, right? Paragraph. I thought you would tell me. I was just talking about the 143 patent

. Perhaps one that's not as hard. And that's claim 68 of the 143 patent. As Mr. George noted, that has a different limitation or an additional limitation. And that is the requirement that the side panels be pulled in opposite directions to tension of the seam. The court found as a fact that paragraph 18 of its findings, the first quality had failed to show that the TPC-3 machine had that feature. That finding rested squarely on the expert testimony, in particular the testimony of Mr. Butterworth. He explained exactly why it didn't, and that's at 6336 and 6375 to 79 of the joint appendix. And so certainly as to claim 68, the revised claim construction has nothing to do with the reason that the validity of that claim was upheld. Now, Mr. Dr. I thought paragraph, I'm sorry, just to be clear, there are a lot of paths obviously flowing around here. The paragraph 18 dealt with the 316 patent, right? Paragraph. I thought you would tell me. I was just talking about the 143 patent. And if I said paragraph 18, I meant paragraph 38. I misspoke if that's what I said, Your Honor. I apologize. Maybe I missed her. That's fine. There's been some time on 939 and 316. I would be happy to. Let me talk about the 316 first. As to the infringement question on that. First of all, the evidence before the district court went far beyond all the photographs going. Went far beyond that single photograph. The court expressly relied on Mr. Sheldon's testimony concerning his observation of first quality process, as well as on photos and videos of the process. And importantly, the court also noted that first qualities of contrary evidence consisted of design drawings and solely of design drawings, which first quality zone expert admitted, differ from the actual machines. And they were also inconsistent with photos of the actual machine. And the court found it both inexplicable and significant that first quality had failed to present photos and videos of its own machine

. And if I said paragraph 18, I meant paragraph 38. I misspoke if that's what I said, Your Honor. I apologize. Maybe I missed her. That's fine. There's been some time on 939 and 316. I would be happy to. Let me talk about the 316 first. As to the infringement question on that. First of all, the evidence before the district court went far beyond all the photographs going. Went far beyond that single photograph. The court expressly relied on Mr. Sheldon's testimony concerning his observation of first quality process, as well as on photos and videos of the process. And importantly, the court also noted that first qualities of contrary evidence consisted of design drawings and solely of design drawings, which first quality zone expert admitted, differ from the actual machines. And they were also inconsistent with photos of the actual machine. And the court found it both inexplicable and significant that first quality had failed to present photos and videos of its own machine. So, and the infringement testimony on that, Your Honor, is at 319 to 22, 6063 to 67, 6238 to 47, and 6286 to 87 of the joint appendix. There was extensive expert testimony on exactly what those pictures and drawings mean. And the district court resolved those against first quality. Now, as to validity, the district court found as a fact there that the drivers and P&G machines, which made permanently bonded pants, didn't disclose or make obvious the method of the 316 patent. That's a paragraph 40 of the findings. That finding was squarely based on the evidence concerning those machines, including Mr. Butterworth's testimony, which the court described as convincing on this point. Now, Mr. Butterworth explained why the machines would not have worked with refassible seams. And this notion that Mr. George was saying, well, of course it's obvious to substitute refassible seams for permanent ones, but that's a fact question. The district court resolved that question against first quality. Moreover, as Mr. Butterworth explained, there's another limitation in these 316 claims. And that is a requirement that the fascinating components be pushed into the body of the government in a flat confirmation. He testified at 5808 to 580810 that the cited prior art, even assuming it was prior art, did not reveal that limitation

. So, and the infringement testimony on that, Your Honor, is at 319 to 22, 6063 to 67, 6238 to 47, and 6286 to 87 of the joint appendix. There was extensive expert testimony on exactly what those pictures and drawings mean. And the district court resolved those against first quality. Now, as to validity, the district court found as a fact there that the drivers and P&G machines, which made permanently bonded pants, didn't disclose or make obvious the method of the 316 patent. That's a paragraph 40 of the findings. That finding was squarely based on the evidence concerning those machines, including Mr. Butterworth's testimony, which the court described as convincing on this point. Now, Mr. Butterworth explained why the machines would not have worked with refassible seams. And this notion that Mr. George was saying, well, of course it's obvious to substitute refassible seams for permanent ones, but that's a fact question. The district court resolved that question against first quality. Moreover, as Mr. Butterworth explained, there's another limitation in these 316 claims. And that is a requirement that the fascinating components be pushed into the body of the government in a flat confirmation. He testified at 5808 to 580810 that the cited prior art, even assuming it was prior art, did not reveal that limitation. So even if you accept everything else, those claims are not invalid because there's no indication that they teach that limitation. Now, the 939 patent, Your Honor, the Estiline Quest, which is the- How are you getting to that? Yes. Talk about the infringement because I looked at the evidence on infringement. You seem to have directly contrary attributions by two experts as to what the photograph shows. Yes. And why doesn't that raise a substantial question as to infringement? Well, because the district court resolved that conflict by accepting the testimony of Kimberly Clark's expert, Your Honor. Did he say that he didn't believe the first quality expert? The district court, he did not say he did in so many words that he didn't believe the first quality expert on that point. But if you look at his findings, which are, I think, paragraph 14 to 18, he consistently cites the Kimberly Clark expert's testimony and Kimberly Clark's evidence on those points. So that is, I think, he's making the determination there of which expert's testimony he's accepting on the infringement questions. Yeah, but it's hard to see him as having made a credibility determination about the first quality expert. Well, Your Honor, when there's conflicting expert testimony presented and the district court says, I'm basing my finding on the testimony in this case of Mr. Sheldon who said A, B and C, I think that that's exactly what that is. He's not, he's not calling the other expert a liar. It's certainly not doing that, but he's saying this testimony is more credible. This is a testimony I'm accepting. I don't think the district court has to say with respect to each item

. So even if you accept everything else, those claims are not invalid because there's no indication that they teach that limitation. Now, the 939 patent, Your Honor, the Estiline Quest, which is the- How are you getting to that? Yes. Talk about the infringement because I looked at the evidence on infringement. You seem to have directly contrary attributions by two experts as to what the photograph shows. Yes. And why doesn't that raise a substantial question as to infringement? Well, because the district court resolved that conflict by accepting the testimony of Kimberly Clark's expert, Your Honor. Did he say that he didn't believe the first quality expert? The district court, he did not say he did in so many words that he didn't believe the first quality expert on that point. But if you look at his findings, which are, I think, paragraph 14 to 18, he consistently cites the Kimberly Clark expert's testimony and Kimberly Clark's evidence on those points. So that is, I think, he's making the determination there of which expert's testimony he's accepting on the infringement questions. Yeah, but it's hard to see him as having made a credibility determination about the first quality expert. Well, Your Honor, when there's conflicting expert testimony presented and the district court says, I'm basing my finding on the testimony in this case of Mr. Sheldon who said A, B and C, I think that that's exactly what that is. He's not, he's not calling the other expert a liar. It's certainly not doing that, but he's saying this testimony is more credible. This is a testimony I'm accepting. I don't think the district court has to say with respect to each item. Gardner said this, Sheldon said this, I think Gardner's full of hot air and I think Sheldon's right. I think that's the inference you draw from the evidence he decides to credit. And that's what you see there. Now, the 939 patent, with respect to the link was reference, that's the single validity reference on which first quality relies. The district court found based on Butterworth's testimony and Butterworth explained this in detail at 5813 to 23 of the Joint Appendix. What you're seeing there is not a sheer stress, it's a compression force. You have these two wheels that just press the material straight downward. The relative displacement that Link was refers to is not one material moving parallel to another. It is basically the position of the hooks changing relative to where they were before the compression force was applied. And Butterworth lays all that out in his declaration. Now, the claim construction change of the district court made, that is that it's a parallel movement or parallel force. It's not, you don't have to pull. That is a change, but it doesn't have anything to do with the 939 findings. If you look at the findings, the district court didn't rely on that aspect of its prior construction at all in any of those findings. So as to that, as to the 939 patent, the claim construction order really has no bearing. On infringement on the 939 patent, the first quality presented evidence, the first, I'm sorry, I got a reverse

. Gardner said this, Sheldon said this, I think Gardner's full of hot air and I think Sheldon's right. I think that's the inference you draw from the evidence he decides to credit. And that's what you see there. Now, the 939 patent, with respect to the link was reference, that's the single validity reference on which first quality relies. The district court found based on Butterworth's testimony and Butterworth explained this in detail at 5813 to 23 of the Joint Appendix. What you're seeing there is not a sheer stress, it's a compression force. You have these two wheels that just press the material straight downward. The relative displacement that Link was refers to is not one material moving parallel to another. It is basically the position of the hooks changing relative to where they were before the compression force was applied. And Butterworth lays all that out in his declaration. Now, the claim construction change of the district court made, that is that it's a parallel movement or parallel force. It's not, you don't have to pull. That is a change, but it doesn't have anything to do with the 939 findings. If you look at the findings, the district court didn't rely on that aspect of its prior construction at all in any of those findings. So as to that, as to the 939 patent, the claim construction order really has no bearing. On infringement on the 939 patent, the first quality presented evidence, the first, I'm sorry, I got a reverse. Kimberly Clark presented evidence, the first quality practiced all of the limitations of that patent. It's a 327 to 28 of the joint appendix. In response, first quality argued only that it didn't mechanically handle the garbage generator shear stress. Now, Mr. George says that they challenged the increased engagement force requirement of the limitation of the claims, but they did not. If you look at their experts testimony, for example, at 6623 to 22 to 23, he's talking his whole argument and their argument and their briefs was just there's no shear stress. The district court found to the contrary at paragraph 20. That finding was based squarely on the testimony of Kimberly Clark's expert, Sheldon, and he testified about what he saw when he personally inspected the process. The court also had photographs and videos of the process. Sheldon's live testimony and declaration were based on more than 380 pictures and multiple high speed videos of the process. The court expressly determined that there's a picture in first-quality brief that they say that the court misinterpreted, but the court addressed that and said it shows that there is in fact shear stress at the key point, which is one of the tucking blades of touching the side panels, and that's exactly what Sheldon explained to the court. So there's convincing evidence on infringement on that patent as well. I see my time's up. I'm happy to answer any other questions. I have one question. I see if I understand that what you are saying basically is that even though if this were on the merits, perhaps the evidence might not be enough to sustain the findings, since this is just on a preliminary injunction and I was finding it can be changed on the merits, it's enough to sustain the preliminary injunction

. Kimberly Clark presented evidence, the first quality practiced all of the limitations of that patent. It's a 327 to 28 of the joint appendix. In response, first quality argued only that it didn't mechanically handle the garbage generator shear stress. Now, Mr. George says that they challenged the increased engagement force requirement of the limitation of the claims, but they did not. If you look at their experts testimony, for example, at 6623 to 22 to 23, he's talking his whole argument and their argument and their briefs was just there's no shear stress. The district court found to the contrary at paragraph 20. That finding was based squarely on the testimony of Kimberly Clark's expert, Sheldon, and he testified about what he saw when he personally inspected the process. The court also had photographs and videos of the process. Sheldon's live testimony and declaration were based on more than 380 pictures and multiple high speed videos of the process. The court expressly determined that there's a picture in first-quality brief that they say that the court misinterpreted, but the court addressed that and said it shows that there is in fact shear stress at the key point, which is one of the tucking blades of touching the side panels, and that's exactly what Sheldon explained to the court. So there's convincing evidence on infringement on that patent as well. I see my time's up. I'm happy to answer any other questions. I have one question. I see if I understand that what you are saying basically is that even though if this were on the merits, perhaps the evidence might not be enough to sustain the findings, since this is just on a preliminary injunction and I was finding it can be changed on the merits, it's enough to sustain the preliminary injunction. I'd show that you will have likely to prevail on the merits and they will unlikely to prevail in their challenges to the past. No, no, we're not saying that, Your Honor. We're not saying. I'm not saying that. No, what we're saying here is that even if this was a decision on the merits, the district court's findings are more than sufficient because they're based on his assessment of the credibility of the witnesses and to the contrary, if this were finding on the judgment on the merits, their principle prior art wouldn't be considered at all because they had no corroborating evidence. So to the extent that there was a lower standard, first quality got the benefit of it. I'm not saying that we're claiming the benefit of it. I'm not saying that, of course, there's a less demanding standard for preliminary injunctions than for determination on the merits. Whatever you might think about this in the light of permanent determination for an injunction, you're not claiming that that's sufficient. I'm sorry, could you share a few that questions, Your Honor? What I'm trying to find out is to what extent is your argument rest on the fact that the standards governing a preliminary injunction may not be the same as the standards grant governing a permanent decision. I don't think our argument relies on some difference in the standards, Your Honor. The difference in the standards, I think, goes to this corroboration requirement where the court was saying, well, maybe first quality will be able to corroborate in the future, so I'm going to consider this art now. Don't you find a little troubling that what you have here is a mini trial numerous issues of infringement and validity in credibility findings and it sounds very much like a trial on the merits rather than what you think of in a typical preliminary injunction situation is that it's pretty clear that the fact that it's pretty violent, it sounds as though district court has resolved all sorts of issues which you normally would think would be addressed at the merit stage of the case rather than on a preliminary injunction. Well, Your Honor, obviously they will be addressed at the merit stage of the case and I'm not sure this is a typical for preliminary injunction. I mean, these are always constructions, they always typically contested hearings both sides put on evidence and the district court makes decisions. Some of them are credibility decisions, some of them there's no need to make a credibility determination

. I'd show that you will have likely to prevail on the merits and they will unlikely to prevail in their challenges to the past. No, no, we're not saying that, Your Honor. We're not saying. I'm not saying that. No, what we're saying here is that even if this was a decision on the merits, the district court's findings are more than sufficient because they're based on his assessment of the credibility of the witnesses and to the contrary, if this were finding on the judgment on the merits, their principle prior art wouldn't be considered at all because they had no corroborating evidence. So to the extent that there was a lower standard, first quality got the benefit of it. I'm not saying that we're claiming the benefit of it. I'm not saying that, of course, there's a less demanding standard for preliminary injunctions than for determination on the merits. Whatever you might think about this in the light of permanent determination for an injunction, you're not claiming that that's sufficient. I'm sorry, could you share a few that questions, Your Honor? What I'm trying to find out is to what extent is your argument rest on the fact that the standards governing a preliminary injunction may not be the same as the standards grant governing a permanent decision. I don't think our argument relies on some difference in the standards, Your Honor. The difference in the standards, I think, goes to this corroboration requirement where the court was saying, well, maybe first quality will be able to corroborate in the future, so I'm going to consider this art now. Don't you find a little troubling that what you have here is a mini trial numerous issues of infringement and validity in credibility findings and it sounds very much like a trial on the merits rather than what you think of in a typical preliminary injunction situation is that it's pretty clear that the fact that it's pretty violent, it sounds as though district court has resolved all sorts of issues which you normally would think would be addressed at the merit stage of the case rather than on a preliminary injunction. Well, Your Honor, obviously they will be addressed at the merit stage of the case and I'm not sure this is a typical for preliminary injunction. I mean, these are always constructions, they always typically contested hearings both sides put on evidence and the district court makes decisions. Some of them are credibility decisions, some of them there's no need to make a credibility determination. Also, no, I don't think it's troubling. This was a two-day hearing extensive submissions. Everybody got their day in court and the district court decided the issue is presented to it. Thank you. They're very briefly. Could I just ask one of the kind of sort of practical questions? Is this at all or nothing for your client or is, you know, no, each patent, each patent is independently important for us. So even if there's a outstanding preliminary injunction. On one of these pans and as to others, no, each one is important. Yeah, just very briefly, the patent examiner wasn't just at face value, in fact, he didn't accept some of our rejections. He came up with his own rejections, he used different references than the court did. So it was certainly not a rubber stamp. I heard that there was no corroboration. We had witnesses and we had documents and we had declarations from third parties and I asked the judge at the end, I said, I can bring more people here and we can do more. And that's why the judge said what he said, that's why he let this. He says, okay, I'm going to accept this prior art. And as I said, this was an ex-punyated hearing, very little discovery

. We got the papers, their last papers, we got them two days before the hearing and there were new theories in there. This was for four patents and as there are a lot of issues both on validity and infringement, we raised substantial questions and we should be reversed. Thank you. Thank you both, council. Certainly please, our session