Legal Case Summary

. O. L. in the district court because the district court had already ruled against Kinzen on the legal issues of claim interpretation. And because under those, the district court's claim interpretation on the legal issues, the issue of infringement was a question of back for the jury. Could I understand the claim construction issues that are here and can just help me? As I understand in claims one and 22, we have an issue about a gray upon me and powered linkage me to drive. Yes. And with respect to both of those, the sole issue is whether connecting or connected whatever the language was, is the description of function within 1, 12, 6, right? Not quite, Your Honor. That is one issue whether connecting is a functional, whether that's functional on a means plus function clause. And then the other is whether the district court included too much structure in the means plus function clause, it's structure that was not necessary to perform a function which were described in the claims. And even as to those two, because I understood that the third one, the power of swing is the one issue as to whether there was too much structure included. No, our position with respect to the draptongue means and the powered lift linkage means is that no matter whether connecting is a function, no matter whether that's true or not, the district court still included too much structure. It's all three of them? Yes. I'm not sure that I understand this to the first two. Assuming that connecting or connected whatever the language is functional, there's still an argument that there was too much structure. Yes, Your Honor. The connection function, that is a function, is performed just by the draptongue means. It does not have to be bifurcated at the end. The patent makes clear that the bifurcation or the opening at the end was to allow a front row unit to drop through that opening. Case does not have front row units

. It does not perform that function. That function is not described in the claim. In fact, the claim doesn't even describe front row units. So the simple act of connection would be any kind of draptongue, whether or not it's bifurcated. In fact, the summary of the invention says that the carrier frames attached to the draptor by a draptongue hitch, a drapte hitch tongue, without saying that it's bifurcated. Bifurcation has no purpose in the connection function. The only purpose of the bifurcation or hole was to allow the front row unit on the center line to drop down through the tongue. What's the issue about too much structure in relation to the second one, the power of lift linkage mean? That means plus function clause, your honor, the judge included substantial number of elements on the lift frame and on the bell housing on the lift frame. She included the... Well, that assumes that you went on the connectic issue. If you lose on the connecting issue, is there still an issue about too much structure under that one? Yes, Your Honor. The evidence that the trial was that from our witnesses was that the lift linkage is a simple four bar linkage and that's the way the summary of the invention described. It's a four bar linkage and a hydraulic cylinder. The lift frame is one solid single well unit. Both cases, witnesses and kinsies witnesses testified to that. You can attach the parallel links at any point on that lift frame and still cause the lifting function. And you would have it connected because it would be connected to some heart on the lift frame

. You don't need the center stretch 109 and horizontal mounting section 111 and the arched rear mounting bar that the district court included in the power of lift linkage clause in order to perform the connection function. You just need to attach the parallel links to some point on the lift frame. Since it's all one well unit, it would still get lifted, you know, it would still be connected. It seems to me that I'm struggling with. See, do you hear on the problem that I'm struggling with here in a way of conceptualizing what the function and necessary relationship is between function and necessary structure, specifically with reference to the term necessary. The way you conceptualize necessity here seems to be that if you could substitute a different structure for the particular structure that's used in the patent specification and the embodiment. Then the particular structure that's used in the embodiment isn't necessary. But I wonder if that's the right way to look at the relationship between function and structure. Let me give you an example of what's bothering you. You could say, suppose you have a vehicle and you're describing a motor and wheels and then means for transmitting the rotational energy to the wheels from the motor. Now in the particular patented device, you have a crankshaft, a differential, and then an axle and the energy is going through all of those. Now, you would say, I think, that the means for transmitting the energy would include the differential of the natural way of characterizing the structure that was necessary to transfer the energy, correct? In that example, I think that's right. Even though, of course, you could have mentioned that sitting in the back between the two rear wheels, or you could have the front wheel drive engine that didn't have a differential. So it's not strictly necessary to have a differential in order to communicate energy from the motor to the wheels, right? If I follow you, I think you're right. So the question is, when you say, is this necessary structure, it seems to me, don't you have to look at the particular embodiment that the patent is focused on and ask in that context is this structure necessary? I would say yes to my differential. And you would then, for that reason, have to say in the context of that patent, the differential is a necessary structure. I would have two answers to that. I would say yes, but you must look at the function and then consider what structure is necessary to perform that function number one. Well, to go to my case, would you say the differential is necessary to perform that function? The function being to transfer energy from the motor to the wheels

. The function has described in that clause, yes. But with respect, for example, the rotation function, the power swing means. Those additional links are specifically described as performing other functions, the deceleration function and the overlocking function, not as part of the rotating function. And the summary of the invention broadly states that the rotation can be caused by a hydraulic cylinder. So there is other references, other descriptions, to accomplishing those functions without using those additional links. But in that limitation, the parts that you say should be left out are connecting ports that are necessary for the other parts to perform that function, aren't they? If in that environment you didn't have those links, there wouldn't be a connection between the hydraulic cylinder and the cranker. Yeah, it couldn't perform a swing mean. I don't think the connecting function is described in the power swing mean. No, no, no, I'm not talking about the tonight, but I'm talking. I'm really pursuing the same line of inquiry that Judge Brighton is pursuing. And the power swing means, example, which I understand your contention there about these two pieces of structure. You say, aren't necessary, but they are necessary to connect the two pieces of structure that you say are necessary. So those two pieces couldn't perform the function unless they were connected, right? In the embodiment illustrator in the drawing, there was testimony that the standard way of causing rotation is to use a hydraulic cylinder and a cranker. And this would be an ordinary mechanical device that's been known for a long time. Some read the invention, says that's how you can cause rotation just to see an hydraulic cylinder. But that would be a different embodiment from the one shown in the past. You could have had that embodiment in there, but as I understand it, this is the embodiment that's there. And just as, again, to go back to my homely example, you don't need to have a different tool. It's a perfectly well understood way to do to transfer energy from an engine into wheels without a differential

. But this particular structure of front-end engine at rear wheel drive has a different one. Therefore, isn't that necessary? But if another part of the patent describes another way of doing it, then that is also a structure that's described in the patent and would be able to be incorporated into the engine. And is the figure 19, figure 20? Is there an alternative embodiment in the patent? There's no other drawing of that. But the summary of the invention does describe all three of these devices in a broader fashion as far as the structure that's used to accomplish the functions. And where would I look to find the second, the alternative embodiment? In columns 2 and 3 under the summary of the invention, for the draft tongue, they say that the carrier frame is connected to a draft tongue hitch, which is quite, in draft tongue hitches being vipricated. I have a reference to that, you're on the column 2. That would be in line 33, a telescope in hitch tongue. And then the four-bar linkage device is described more broadly in line 41 and 42, a heavy four-bar linkage actuated by a pair of master hydraulic cylinders. That doesn't describe all of the other structure that's included in the judge's interpretation, but it is an accurate description of a standard four-bar linkage, which witnesses on both sides testified as a very well-known mechanical device. And then I have one more interesting judge's question. One more means plus function, plus writer. And then as far as it's described in the summary of the invention, that's in column 3. The power swing means is described more broadly in column 3 line 43, just referring to the hydraulic cylinder. No, I'm right here. Question? No, that's fine. I was good you had a, you finished your response to that question. Going back, just not to the personal notation, and playing one that's the issue here, the draft tongue means connecting, set carrier frame, the subtract addition for permitting a little movement, et cetera, that goes on from there. But let's assume to the moment that one were to agree with your contention that the district were air in saying that connecting was means was described the function for purposes of means plus function claim. But what if you just looked at connecting as saying basically, if you read the claim as saying draft tongue means, which is connected to the carrier frame, which connects the carrier frame to the tractor, for permitting a little movement, et cetera

. In other words, the draft tongue frame for N, which is connected close to N, for permitting movement. And you look at the draft tongue means, as encompassing, I guess on figure, I guess is figure one, encompassing item 15, the cleavus 16, and the bifurcated element, I guess 17. Where would that, what would your response be to that? My response to that would be the function is permitting pivotal movement, and that function is, the structure for that function is the cleavus 16, which allows the pivoting bolder hand to go through. And that would be then the structure, the corresponding structure, the means plus function clause. The connection in your current theoretical phrase would not be a function, it would just be physical connection, which would be anyway. The district court judge, and correctly found, always I think, found that for the performing the pivoting function, I think, am I correct in thinking that, found that the structure there was 15, 16. He didn't include 17 in that. I don't think we can read it that way, Your Honor. I think she just said that the function is both connecting and permitting pivotal movement, and the structure for performing those functions, she didn't break it down. I see, she didn't say that. Okay. And I think she did the same with the liquid link, it means. I'll tell you, Mr. Chess, if you're all finished, both your main argument and your rebuttal time, but you received a number of questions, so we'll restore your five minutes for your rebuttal. Thank you. And Mr. Bowen will give you an additional five minutes on your main argument if you need some of this, if you just give us the volume of 5. Thank you. Thank you

. Good afternoon, May I please the court? So let me, I mean, the pounce on you before you say anything, but time flies quickly as we know, so I apologize. But getting to what I was finishing up discussing with Mr. Chess, what is your answer if one concludes that the district court judge did air in finding that, connecting represented a function for purposes of a 112-6 client. Where does that leave us in your means? I know you disagree with that, but assume that from the moment, where would we be? My reading of her Markman ruling is that she found that it's just 15 and 16 in that situation. Okay. So is that a problem for you then? Well, it's several points in response to that by May. And here key point is that you don't have this bifurcated piece, item 17. Sure. And I think a fair reading of her Pat is that the item 15, as its defined in specification, includes the bifurcated section 17. When ever 15 is referred to, it's an arrow to the entire pitch, the entire tongue, and the only specific tongue that's referenced in the patent actually goes from the clevis all the way back to the main frame. And it includes a telescoping section and it includes the bifurcated rear foot. Now, when we're talking about, I want to make sure I understand this because I think I was first listening in the case, I was, I got a little bit off base. When you're talking about this function here, performing pivotal movement, we're talking about the movement that takes place, if I correct, when the tractor makes a turn in the field. That's correct. Okay. It's the entire unit, the framing unit, including the tongue that's described in the path. There's no movement between the tongue itself and the main frame. The movement pivots up at the tractor hitch. So, it's your position, is it your position that for purposes of performing the function of pivotent that 15, 16 and 17 are all necessary? Yes, because your, our position is, that's the only structure that's disclosed

. Why is that? Because it's defined as part of 15. And as I, as Judge Brightson alluded to before, I don't think the standard to look at is, what could the specification have said? It's what does the specifications say? Okay, here there's one specific embodiment described. And this entire issue that Mr. Chestnut has raised could have been solved very easily. If the drafter of that specification had been more clear and said, look, here's how we prefer to do it, however public, please take notice that in alternative forms of our invention, this bifurcated section is not needed. And I think when you look at the patent itself and the intrinsic evidence as a whole, and if I could make one note on this specific point that wasn't in our brief, so I was just giving warning, but it's in the prosecution history. There's an argument that was made, it's in amendment B, the second amendment, and it's at appendix page 3874 and 3875. And in that particular location, the patentee argued that the claimed invention, quote unquote, achieves a result that is not achieved by the Carter patent that had been cited against them. They go on to explain what that result is. They say that our invention allows two sets of real millions to be used, front and back, and therefore we can drop a unit right down in the center. They're talking about right through that bifurcated section of the tongue. Now that argument could not have been made if the entire tongue structure was not incorporated in the claims as they existed at that time, and they clearly included this draft tongue means. So it's not just a specification, it's the intrinsic record as a whole. Of course, the interpretation of the judge read gave to that exact indication. Unless there's other issues on the tongue, I'm happy to move. Go ahead with the rest of your questions. Mr. Testnacht points us to the summary of the invention as containing perhaps alternative embodiments or at least a shorthand description of embodiments from which the argues that we find that some of the features that are in the more elaborate and described embodiment are not necessary, even within the context of this design and your response. Several points again

. One is I don't recall those points being made in the brief because I don't recall our having to address them in our response brief. Second is my reading of the summary is not quite the same as Mr. Testnacht. My reading of the summary is that the same machine is described. It's described in more general fashion, but it's the same machine and the language that links the summary into the detailed description of the invention. I don't think it says anywhere that there's alternative embodiments that are described in the summary that are beyond the purview of the very specific machine that's described throughout the path. We don't see that the hitch is mentioned in column 2 where Mr. Testnacht is pointed to some other type of hitch. There's only one described in a pattern from a structural standpoint. And certainly in accordance with the public policy, the high section 112 paragraph 6, what that is is a shortcut. It allows patenties to make a choice. I can describe my invention using the means language and if I do, here's the rules that have to be followed or I can describe it more broadly and use simply a tongue memory. They could have said a tongue memory and we wouldn't be here arguing this today. But they chose to use the language draft tongue means. They don't dispute that it's 112 6. And when that happens, very specific rules kick in. Let's all take a look at the function. Then let's define what it is. Let's look at the specification and see the specific structure disclosed

. And again, this goes to the public notice function. The purpose of the specification, let's strike out the purpose of the claims when construed in my specification of prosecution is to give the public notice of what's covered or what's not. And when the draft or chooses the means language and chooses not to describe the structure in the claim, it's only fair to allow the public to assume that the structure is actually disclosed. Not general descriptions of things and not showing how they're connected like it is in the summary. That doesn't suffice. What suffices are particular embodiments. That's what this court has historically looked to in assessing the scope of means plus function structures. So I hope I've answered your question. I can briefly comment on the other one, both six issues. What about the connecting issue? They're saying basically that connecting is not a description of function because it doesn't, I think, come after four. It doesn't say four connecting, means four connecting. What's the response to that? Sure. In the context of the draft, tongue means and the power of the linkage means connecting clearly is describing a function because it's saying, here's what the means does. Here's what it does. Mr. Chestnut has pointed to claim three words connected between a curve. And there's a clear difference there. Claim three is describing the location of the power means followed by the function. So we think that the plain language itself sets forth that connecting is a function because there's no structural members getting from the hitch back to the main frame for the tongue means. And without that connecting language, again, you'd be missing linkages going from the carrier frame back to the lift frame for the power of the linkage means so that the express language connecting describes what the means does. What is its purpose? What is its function? Excuse me. Secondly, Mr. Chestnut hasn't cited a single case which stands for the proposition that where the word four is lacking in the claim language, that word that ends in ING such as connecting here should be construed as a function. But have you given cited a space the other way? You're right. We have the northward grung case and the Ferguson-Boward-Card case. But both, they didn't deal with the word connecting but it said means generating in one instance. Yeah, but they didn't mean both. They did those foreign cases in which you had like connecting four doing something and the word connecting was before the four. But what I'm saying is the one case is either northward or the other means generating. Yeah, but it doesn't present the precise issue. You understand that you don't need the word four and means plus function claim. But where you do, where you have that construct, the argument is that the function is the language appearing after the word four rather than the language appearing before it. And we haven't had a case involving that before, have we? Not on this precise connecting issue, but I think you can't tell me that. But I mean in terms of the use of the word four and means plus function claim with some description of the function coming before the word four and some coming afterwards. I see your point and I can't say on that precise point where authority which has made it a requirement or not. I assume for the moment that we read the word connecting as if it said draft means connected to said carrier frame and the tractor. Yes. Okay

. And without that connecting language, again, you'd be missing linkages going from the carrier frame back to the lift frame for the power of the linkage means so that the express language connecting describes what the means does. What is its purpose? What is its function? Excuse me. Secondly, Mr. Chestnut hasn't cited a single case which stands for the proposition that where the word four is lacking in the claim language, that word that ends in ING such as connecting here should be construed as a function. But have you given cited a space the other way? You're right. We have the northward grung case and the Ferguson-Boward-Card case. But both, they didn't deal with the word connecting but it said means generating in one instance. Yeah, but they didn't mean both. They did those foreign cases in which you had like connecting four doing something and the word connecting was before the four. But what I'm saying is the one case is either northward or the other means generating. Yeah, but it doesn't present the precise issue. You understand that you don't need the word four and means plus function claim. But where you do, where you have that construct, the argument is that the function is the language appearing after the word four rather than the language appearing before it. And we haven't had a case involving that before, have we? Not on this precise connecting issue, but I think you can't tell me that. But I mean in terms of the use of the word four and means plus function claim with some description of the function coming before the word four and some coming afterwards. I see your point and I can't say on that precise point where authority which has made it a requirement or not. I assume for the moment that we read the word connecting as if it said draft means connected to said carrier frame and the tractor. Yes. Okay. Now, how would you construe that clause? Connected to the carrier frame and the hedge. But again, I could construe that in context. I think the answer is plainly look at it in context. Look at that precise language. Look at the means language which presumptively triggers the one twelve six application and make a determination is that part of the claim function. Well, I guess what I'm asking you for is it parsed that clause for me in a way. That you think would be consistent with your theory. The case because I think it is not unfair, frankly, to read that language the way I just translated. There's a problem here obviously. This claim is the most flattering thing you could say about is it's a hybrid. It's not a pure means plus function claim. It's got some structure and some means plus function. You could also call it a mess. But it's difficult to parse. And if we say connecting something to something else is really a reference to more description of structure than it is for description of function and therefore connected would be the word that is going there. How would you parse it? Again, I think you've hit the nail right on the head. Is it a description of structure or is it describing what the means that stated does? Well, of course, we face this from all the time. There are lots of words that describe structure as a screwdriver. It describes structure, but it also describes exactly what it does

. Now, how would you construe that clause? Connected to the carrier frame and the hedge. But again, I could construe that in context. I think the answer is plainly look at it in context. Look at that precise language. Look at the means language which presumptively triggers the one twelve six application and make a determination is that part of the claim function. Well, I guess what I'm asking you for is it parsed that clause for me in a way. That you think would be consistent with your theory. The case because I think it is not unfair, frankly, to read that language the way I just translated. There's a problem here obviously. This claim is the most flattering thing you could say about is it's a hybrid. It's not a pure means plus function claim. It's got some structure and some means plus function. You could also call it a mess. But it's difficult to parse. And if we say connecting something to something else is really a reference to more description of structure than it is for description of function and therefore connected would be the word that is going there. How would you parse it? Again, I think you've hit the nail right on the head. Is it a description of structure or is it describing what the means that stated does? Well, of course, we face this from all the time. There are lots of words that describe structure as a screwdriver. It describes structure, but it also describes exactly what it does. And again, I'm going to take connected to in that context, your honor, and say that that should be construed as what the tongue does. What is it purpose? When you're looking at the function, the questions which are triggered are, what's the purpose of this means? What does it do versus on the other hand, where is it or what is it structurally? Those are the cases where the presumption can be overcome. Where, for example, there's many cases which this court holds where there's plenty of structure which follows application of the word means and therefore we're not even going to apply the statute at all. Here connected to, I can see how so many might argument both ways, but without any recitation of structure which follows it, which is the case here, my view is that 1126 should apply. That should be part of the function because it's clearly stated what the means does in the context of that claim limitation. If I can just briefly comment on the power of swing means which came up in Mr. Chess and that's argument. Again, the issue is not what could have been described in terms of the structure. This is a case where there's no disagreement on the function. There's from the hydraulic cylinder one, two additional links to the part that's actually rotated. I think that precedent is very clear that if the only structure described is these links are two 18 and two 21, which are there and the specification does not describe a specific alternative embodiment that the question has already been answered to those or the actual structures disclosed, that's what the court corrected found. There's still an issue and it was an issue in this case. It is an embodiment which lacks those elements equivalent. The claim still covers the actually disclosed structure and its equivalence, but that's not the issue for construing what structure goes into the claim. If I could go to one or two other points, I have about five or six minutes left. For the reasons we set forth in our brief, we don't think that we should be here today. Even if Mr. Chess not as right on all of his points, we respectfully submit that the judgment of non-apprentive and actually the verdict should be affirmed. This is not a forum where any argue or any error that was made below provides an opportunity to come in and

. And again, I'm going to take connected to in that context, your honor, and say that that should be construed as what the tongue does. What is it purpose? When you're looking at the function, the questions which are triggered are, what's the purpose of this means? What does it do versus on the other hand, where is it or what is it structurally? Those are the cases where the presumption can be overcome. Where, for example, there's many cases which this court holds where there's plenty of structure which follows application of the word means and therefore we're not even going to apply the statute at all. Here connected to, I can see how so many might argument both ways, but without any recitation of structure which follows it, which is the case here, my view is that 1126 should apply. That should be part of the function because it's clearly stated what the means does in the context of that claim limitation. If I can just briefly comment on the power of swing means which came up in Mr. Chess and that's argument. Again, the issue is not what could have been described in terms of the structure. This is a case where there's no disagreement on the function. There's from the hydraulic cylinder one, two additional links to the part that's actually rotated. I think that precedent is very clear that if the only structure described is these links are two 18 and two 21, which are there and the specification does not describe a specific alternative embodiment that the question has already been answered to those or the actual structures disclosed, that's what the court corrected found. There's still an issue and it was an issue in this case. It is an embodiment which lacks those elements equivalent. The claim still covers the actually disclosed structure and its equivalence, but that's not the issue for construing what structure goes into the claim. If I could go to one or two other points, I have about five or six minutes left. For the reasons we set forth in our brief, we don't think that we should be here today. Even if Mr. Chess not as right on all of his points, we respectfully submit that the judgment of non-apprentive and actually the verdict should be affirmed. This is not a forum where any argue or any error that was made below provides an opportunity to come in and... I'll be candid with you. I thought that argument that you're making completely without support. Can you point me to any case that suggests that you have a general verdict? The Kuido case here are. It's one that we cited. There was a general verdict which we put in our appendix. It's at A5116. And the verdict said, is the patent infringed yes or no? That was a case where there were at least four claim limitations that were disputed below. Turnkey on appeal contested the claim construction on two, pre-determined means and the flow record, and the evidence on others. And this court took a look at the facts and said, we can dispose of this based on one claim limitation. The pre-determined means they looked and said the claim construction issue were not going to treat any differently than below. There actually had been a waiver and there was sufficient evidence. So in that case, picking one disputed claim element, the court affirmed the general verdict. But your problem is that the Supreme Court and the eight circuit have repeatedly said that where you have a general verdict, not talking about sufficient to the evidence, but talking about errors in the instruction, that if there's an error in the instruction that general verdict has to go, if it's a one theory of recovery or one defense. I don't understand in the Abbott case, which you rely on, so heavily it's not a case involving a general verdict, it was a special verdict in which the jury had found several claim limitations. That's not the situation here. I mean, how do you deal with fun kids and these other Supreme Court cases? There are among, I think that there is a major distinction between a verdict that relies on separate legal theories of recovery or a number of separate defenses, which is the line of cases cited by Mr. Chestnut and his reply, versus a situation where there's a single defense or a single legal theory that's supported by multiple grounds

... I'll be candid with you. I thought that argument that you're making completely without support. Can you point me to any case that suggests that you have a general verdict? The Kuido case here are. It's one that we cited. There was a general verdict which we put in our appendix. It's at A5116. And the verdict said, is the patent infringed yes or no? That was a case where there were at least four claim limitations that were disputed below. Turnkey on appeal contested the claim construction on two, pre-determined means and the flow record, and the evidence on others. And this court took a look at the facts and said, we can dispose of this based on one claim limitation. The pre-determined means they looked and said the claim construction issue were not going to treat any differently than below. There actually had been a waiver and there was sufficient evidence. So in that case, picking one disputed claim element, the court affirmed the general verdict. But your problem is that the Supreme Court and the eight circuit have repeatedly said that where you have a general verdict, not talking about sufficient to the evidence, but talking about errors in the instruction, that if there's an error in the instruction that general verdict has to go, if it's a one theory of recovery or one defense. I don't understand in the Abbott case, which you rely on, so heavily it's not a case involving a general verdict, it was a special verdict in which the jury had found several claim limitations. That's not the situation here. I mean, how do you deal with fun kids and these other Supreme Court cases? There are among, I think that there is a major distinction between a verdict that relies on separate legal theories of recovery or a number of separate defenses, which is the line of cases cited by Mr. Chestnut and his reply, versus a situation where there's a single defense or a single legal theory that's supported by multiple grounds. For example, in the North Point case, there was an issue of anticipation, and this court held very clearly. But anticipation is a single theory of defense, even though there were five references asserted to anticipate, and error was being argued with respect to at least one or two or three. But that was the thought that I'm completely, I have to say, I'm completely in agreement with Judge Diakie in his take on this, and I was surprised to see the argument in your brief in light of evidence. This exact panel sat on North Point, and the point, I thought, in that case, was that there's a distinction between legal errors and factual insufficiency, and the point at North Point was to say factual insufficiency is something as to which you can't simply win on one of multiple theories and then say, aha, the jury might have found that theory as to be the factual theory for finding liability. And in as much as the evidence is insufficient on that theory, I get a reversal. No, that's what the Supreme Court said in Britain. But it said exactly the opposite, which would affect the legal errors. And what we're dealing with here is illegal. This case is, it seems to me, no different. And it's positive that if the trial judge had construed the claim here to require that the implement be colored green, and that the jury had come in with a general verdict of non-infringement, I don't think you'd be arguing that who cares about the green business? Because they have to prove that every single claim limitation was unsupportable. I don't think you'd be making that argument. Because it seems so clearly possible that the jury might have been this led by the legal error. In this case, I asked the court to take note of the fact that we attempted to, again, avoid this problem by proposing a special verdict, which outlined the precise claim elements and dispute all five of them for each independent claim and ask the jury to indicate yes or no. And it would have been, like would have been a lot easier for us, at least. And perhaps for you, if the special verdict had been adopted. But I know of no case, maybe you can point this to the one. But I know of no case in which we've held that the failure to agree to, and by the district court, the failure to adopt, a special verdict, is supposed to a general verdict, requires a different approach for the question of legal error. Well, I can say this, that on the Federal Circuit Authority that I'm aware of in the infringement context, where there's been legal error shown, the cases that the balance rely on E.C

. For example, in the North Point case, there was an issue of anticipation, and this court held very clearly. But anticipation is a single theory of defense, even though there were five references asserted to anticipate, and error was being argued with respect to at least one or two or three. But that was the thought that I'm completely, I have to say, I'm completely in agreement with Judge Diakie in his take on this, and I was surprised to see the argument in your brief in light of evidence. This exact panel sat on North Point, and the point, I thought, in that case, was that there's a distinction between legal errors and factual insufficiency, and the point at North Point was to say factual insufficiency is something as to which you can't simply win on one of multiple theories and then say, aha, the jury might have found that theory as to be the factual theory for finding liability. And in as much as the evidence is insufficient on that theory, I get a reversal. No, that's what the Supreme Court said in Britain. But it said exactly the opposite, which would affect the legal errors. And what we're dealing with here is illegal. This case is, it seems to me, no different. And it's positive that if the trial judge had construed the claim here to require that the implement be colored green, and that the jury had come in with a general verdict of non-infringement, I don't think you'd be arguing that who cares about the green business? Because they have to prove that every single claim limitation was unsupportable. I don't think you'd be making that argument. Because it seems so clearly possible that the jury might have been this led by the legal error. In this case, I asked the court to take note of the fact that we attempted to, again, avoid this problem by proposing a special verdict, which outlined the precise claim elements and dispute all five of them for each independent claim and ask the jury to indicate yes or no. And it would have been, like would have been a lot easier for us, at least. And perhaps for you, if the special verdict had been adopted. But I know of no case, maybe you can point this to the one. But I know of no case in which we've held that the failure to agree to, and by the district court, the failure to adopt, a special verdict, is supposed to a general verdict, requires a different approach for the question of legal error. Well, I can say this, that on the Federal Circuit Authority that I'm aware of in the infringement context, where there's been legal error shown, the cases that the balance rely on E.C. Lab and Wenger, for example, involved a single claim limitation, which was in dispute. A single one, and obviously there, if the error was shown to be prejudicial, the patent team should be entitled to a new trial on that ground. But here, let's say there was ten limitations at issue. And parties go and spend weeks and weeks and weeks trying a complex case, spending all this money. And under the appellant theory, one claim construction, one limitation is shown to have a claim constructioner. Under the appellant theory, this court would have to vacate that verdict and send it all back to be redone. Well, it may not make any sense, but it's for law. And the Supreme Court has said that. It was the holding as I waited a fun case, for example, in their earlier cases. I mean, is that what fun case, then? I'm not specifically familiar with the facts as I stand here today as some kids. I just want to just like hand comment, but I'd be happy to check it, but you know, somehow you desire. Well, I don't think it. See that the red lights on, but I'm happy to answer any further questions. I think all of the questions that we have have been posed as both. Thank you. Tessa, you have your five minutes for the battle. I'll try to take up the points Mr. Bowling made in the order that he made them. He first referred to an argument that was in his pre relative to the argument made in the prosecution history, trying to distinguish the Carter reference by saying Carter doesn't allow you to have front row units

. Lab and Wenger, for example, involved a single claim limitation, which was in dispute. A single one, and obviously there, if the error was shown to be prejudicial, the patent team should be entitled to a new trial on that ground. But here, let's say there was ten limitations at issue. And parties go and spend weeks and weeks and weeks trying a complex case, spending all this money. And under the appellant theory, one claim construction, one limitation is shown to have a claim constructioner. Under the appellant theory, this court would have to vacate that verdict and send it all back to be redone. Well, it may not make any sense, but it's for law. And the Supreme Court has said that. It was the holding as I waited a fun case, for example, in their earlier cases. I mean, is that what fun case, then? I'm not specifically familiar with the facts as I stand here today as some kids. I just want to just like hand comment, but I'd be happy to check it, but you know, somehow you desire. Well, I don't think it. See that the red lights on, but I'm happy to answer any further questions. I think all of the questions that we have have been posed as both. Thank you. Tessa, you have your five minutes for the battle. I'll try to take up the points Mr. Bowling made in the order that he made them. He first referred to an argument that was in his pre relative to the argument made in the prosecution history, trying to distinguish the Carter reference by saying Carter doesn't allow you to have front row units. The contact of that argument was the invention permits this and not the invention required that the claim don't require front row units. And even if it did, it wouldn't require a barricaded hitch because of front row units wouldn't have to be on the center line. It could be off the center line just the way the back row units are not on the center line. With respect to the corridor case, I think the court is well aware of the corridor case. There was no error claim interpretation, no case cited by case involved in error of erroneous jury instruction. That totally distinguishes the case we have here from the cases that the case relied on. As far as the verdict form, the judge selected a room verdict form. Both sides proposed the verdict form. The judge obviously wanted a very simplified form, which is her right. Would you oppose the expected verdict? No. Right. What happened was when the time came to put the proposed pre-trial verdict together, case had a proposed verdict and we said that's pretty complicated. We don't like that here. It's hours. We've both attached our proposed verdict form to the pre-trial verdict. We never heard anything more about the verdict form until the judge came up with her own verdict form and presented it to us. She came up with her own verdict form. She obviously had a very simple form. And even the simplified form that she came up with obviously confused the jury because they didn't answer question number two

. The contact of that argument was the invention permits this and not the invention required that the claim don't require front row units. And even if it did, it wouldn't require a barricaded hitch because of front row units wouldn't have to be on the center line. It could be off the center line just the way the back row units are not on the center line. With respect to the corridor case, I think the court is well aware of the corridor case. There was no error claim interpretation, no case cited by case involved in error of erroneous jury instruction. That totally distinguishes the case we have here from the cases that the case relied on. As far as the verdict form, the judge selected a room verdict form. Both sides proposed the verdict form. The judge obviously wanted a very simplified form, which is her right. Would you oppose the expected verdict? No. Right. What happened was when the time came to put the proposed pre-trial verdict together, case had a proposed verdict and we said that's pretty complicated. We don't like that here. It's hours. We've both attached our proposed verdict form to the pre-trial verdict. We never heard anything more about the verdict form until the judge came up with her own verdict form and presented it to us. She came up with her own verdict form. She obviously had a very simple form. And even the simplified form that she came up with obviously confused the jury because they didn't answer question number two. So I think she had justification for trying to simplify it as much as possible. The echo lab case, I think, is directly in claim. Mr. Bolin said there was only one claim limitation. There were actually two claim limitations that this court reviewed. One was the reflecting service and the other one was reflected light. The court held that in claim 16, the district court got one of those limitations right, but in the reverse verdict of non-fringement on claim 16. We had a one of those. But as on the connecting point, we struggle with it. We struggle with it and we can't come up with an answer and serve in equal force. Doesn't the patent he under those circumstances lose? I mean, as to whether connecting a description of function or a description of instruction. No. Even if your honors decide that connecting is a functional description under the means plus function analysis, there is no necessity to include the bifurcated portion. No, I understand that. My question wasn't clear. I'm saying you lose on the connecting issue being functional. If we can't figure out which it should be, if we're stuck, that doesn't the patent he lose. No, because even if you can't figure out, in other words, if you accept the district court's interpretation that connecting is functional language, we can't tell whether functional or structural. Well, then I think men is not a means plus function plus because if you cannot say that this is a function

. So I think she had justification for trying to simplify it as much as possible. The echo lab case, I think, is directly in claim. Mr. Bolin said there was only one claim limitation. There were actually two claim limitations that this court reviewed. One was the reflecting service and the other one was reflected light. The court held that in claim 16, the district court got one of those limitations right, but in the reverse verdict of non-fringement on claim 16. We had a one of those. But as on the connecting point, we struggle with it. We struggle with it and we can't come up with an answer and serve in equal force. Doesn't the patent he under those circumstances lose? I mean, as to whether connecting a description of function or a description of instruction. No. Even if your honors decide that connecting is a functional description under the means plus function analysis, there is no necessity to include the bifurcated portion. No, I understand that. My question wasn't clear. I'm saying you lose on the connecting issue being functional. If we can't figure out which it should be, if we're stuck, that doesn't the patent he lose. No, because even if you can't figure out, in other words, if you accept the district court's interpretation that connecting is functional language, we can't tell whether functional or structural. Well, then I think men is not a means plus function plus because if you cannot say that this is a function. I think we're looking for some help. I know you don't want to give any ground and that's understandable, but I do think that the principle of mathematical terms is the general principle that where the courts and equitvoids are a claim-construction issue, that you lay it off on the patent D because of patent D was the party that was in a position where the draft was in. That's exactly what I think of the preperate rule as a collective patent. But as I understand the analysis under section 112 paragraph 6, you first determine whether it's functional and if it's not functional, then it's not a means plus function. So if your orders decide that connecting, you don't, you can't make up your mind, I would say, then the decision has to be it's not functional language. Thank you. Mr. Chessner, thank you. The case is submitted, although I would just say up here. Oh, Mr. Falman, I'm sorry. Well, that concludes the oral argument in number 05.

calendar this afternoon and two cases that are being submitted on the on the briefs. Just for the record, I will note the two submitted cases. The first one is number 05-3350, Poezie versus the Department of Defense. And the second submitted case is number 05-3358, Miller versus the Office of Personnel Management. The first of two companion cases for oral argument this morning, a Saturday, excuse me, is number 05-1269, Kinzenbaum versus Case LLC. Just want to confirm you are reserving five minutes for your rebuttal. Is that correct? That's correct. You can approach and begin whenever you're ready. Do you understand how the lighting system works? Yes, I do. You're on the line. Okay. Well, by our way, whenever you're ready, I may have please the court. The issue in this case is whether a patentee can appeal an erroneous interpretation of one claim element when it has not moved for J. O. O. L. on another claim element. If case is right that Kinzen's appeal in this case is unfounded, then Kinzen would not have any remedy to correct an error of claim interpretation, a legal error, in the district court. And Kinzen did not file a motion for J. O. O. L. in the district court because the district court had already ruled against Kinzen on the legal issues of claim interpretation. And because under those, the district court's claim interpretation on the legal issues, the issue of infringement was a question of back for the jury. Could I understand the claim construction issues that are here and can just help me? As I understand in claims one and 22, we have an issue about a gray upon me and powered linkage me to drive. Yes. And with respect to both of those, the sole issue is whether connecting or connected whatever the language was, is the description of function within 1, 12, 6, right? Not quite, Your Honor. That is one issue whether connecting is a functional, whether that's functional on a means plus function clause. And then the other is whether the district court included too much structure in the means plus function clause, it's structure that was not necessary to perform a function which were described in the claims. And even as to those two, because I understood that the third one, the power of swing is the one issue as to whether there was too much structure included. No, our position with respect to the draptongue means and the powered lift linkage means is that no matter whether connecting is a function, no matter whether that's true or not, the district court still included too much structure. It's all three of them? Yes. I'm not sure that I understand this to the first two. Assuming that connecting or connected whatever the language is functional, there's still an argument that there was too much structure. Yes, Your Honor. The connection function, that is a function, is performed just by the draptongue means. It does not have to be bifurcated at the end. The patent makes clear that the bifurcation or the opening at the end was to allow a front row unit to drop through that opening. Case does not have front row units. It does not perform that function. That function is not described in the claim. In fact, the claim doesn't even describe front row units. So the simple act of connection would be any kind of draptongue, whether or not it's bifurcated. In fact, the summary of the invention says that the carrier frames attached to the draptor by a draptongue hitch, a drapte hitch tongue, without saying that it's bifurcated. Bifurcation has no purpose in the connection function. The only purpose of the bifurcation or hole was to allow the front row unit on the center line to drop down through the tongue. What's the issue about too much structure in relation to the second one, the power of lift linkage mean? That means plus function clause, your honor, the judge included substantial number of elements on the lift frame and on the bell housing on the lift frame. She included the... Well, that assumes that you went on the connectic issue. If you lose on the connecting issue, is there still an issue about too much structure under that one? Yes, Your Honor. The evidence that the trial was that from our witnesses was that the lift linkage is a simple four bar linkage and that's the way the summary of the invention described. It's a four bar linkage and a hydraulic cylinder. The lift frame is one solid single well unit. Both cases, witnesses and kinsies witnesses testified to that. You can attach the parallel links at any point on that lift frame and still cause the lifting function. And you would have it connected because it would be connected to some heart on the lift frame. You don't need the center stretch 109 and horizontal mounting section 111 and the arched rear mounting bar that the district court included in the power of lift linkage clause in order to perform the connection function. You just need to attach the parallel links to some point on the lift frame. Since it's all one well unit, it would still get lifted, you know, it would still be connected. It seems to me that I'm struggling with. See, do you hear on the problem that I'm struggling with here in a way of conceptualizing what the function and necessary relationship is between function and necessary structure, specifically with reference to the term necessary. The way you conceptualize necessity here seems to be that if you could substitute a different structure for the particular structure that's used in the patent specification and the embodiment. Then the particular structure that's used in the embodiment isn't necessary. But I wonder if that's the right way to look at the relationship between function and structure. Let me give you an example of what's bothering you. You could say, suppose you have a vehicle and you're describing a motor and wheels and then means for transmitting the rotational energy to the wheels from the motor. Now in the particular patented device, you have a crankshaft, a differential, and then an axle and the energy is going through all of those. Now, you would say, I think, that the means for transmitting the energy would include the differential of the natural way of characterizing the structure that was necessary to transfer the energy, correct? In that example, I think that's right. Even though, of course, you could have mentioned that sitting in the back between the two rear wheels, or you could have the front wheel drive engine that didn't have a differential. So it's not strictly necessary to have a differential in order to communicate energy from the motor to the wheels, right? If I follow you, I think you're right. So the question is, when you say, is this necessary structure, it seems to me, don't you have to look at the particular embodiment that the patent is focused on and ask in that context is this structure necessary? I would say yes to my differential. And you would then, for that reason, have to say in the context of that patent, the differential is a necessary structure. I would have two answers to that. I would say yes, but you must look at the function and then consider what structure is necessary to perform that function number one. Well, to go to my case, would you say the differential is necessary to perform that function? The function being to transfer energy from the motor to the wheels. The function has described in that clause, yes. But with respect, for example, the rotation function, the power swing means. Those additional links are specifically described as performing other functions, the deceleration function and the overlocking function, not as part of the rotating function. And the summary of the invention broadly states that the rotation can be caused by a hydraulic cylinder. So there is other references, other descriptions, to accomplishing those functions without using those additional links. But in that limitation, the parts that you say should be left out are connecting ports that are necessary for the other parts to perform that function, aren't they? If in that environment you didn't have those links, there wouldn't be a connection between the hydraulic cylinder and the cranker. Yeah, it couldn't perform a swing mean. I don't think the connecting function is described in the power swing mean. No, no, no, I'm not talking about the tonight, but I'm talking. I'm really pursuing the same line of inquiry that Judge Brighton is pursuing. And the power swing means, example, which I understand your contention there about these two pieces of structure. You say, aren't necessary, but they are necessary to connect the two pieces of structure that you say are necessary. So those two pieces couldn't perform the function unless they were connected, right? In the embodiment illustrator in the drawing, there was testimony that the standard way of causing rotation is to use a hydraulic cylinder and a cranker. And this would be an ordinary mechanical device that's been known for a long time. Some read the invention, says that's how you can cause rotation just to see an hydraulic cylinder. But that would be a different embodiment from the one shown in the past. You could have had that embodiment in there, but as I understand it, this is the embodiment that's there. And just as, again, to go back to my homely example, you don't need to have a different tool. It's a perfectly well understood way to do to transfer energy from an engine into wheels without a differential. But this particular structure of front-end engine at rear wheel drive has a different one. Therefore, isn't that necessary? But if another part of the patent describes another way of doing it, then that is also a structure that's described in the patent and would be able to be incorporated into the engine. And is the figure 19, figure 20? Is there an alternative embodiment in the patent? There's no other drawing of that. But the summary of the invention does describe all three of these devices in a broader fashion as far as the structure that's used to accomplish the functions. And where would I look to find the second, the alternative embodiment? In columns 2 and 3 under the summary of the invention, for the draft tongue, they say that the carrier frame is connected to a draft tongue hitch, which is quite, in draft tongue hitches being vipricated. I have a reference to that, you're on the column 2. That would be in line 33, a telescope in hitch tongue. And then the four-bar linkage device is described more broadly in line 41 and 42, a heavy four-bar linkage actuated by a pair of master hydraulic cylinders. That doesn't describe all of the other structure that's included in the judge's interpretation, but it is an accurate description of a standard four-bar linkage, which witnesses on both sides testified as a very well-known mechanical device. And then I have one more interesting judge's question. One more means plus function, plus writer. And then as far as it's described in the summary of the invention, that's in column 3. The power swing means is described more broadly in column 3 line 43, just referring to the hydraulic cylinder. No, I'm right here. Question? No, that's fine. I was good you had a, you finished your response to that question. Going back, just not to the personal notation, and playing one that's the issue here, the draft tongue means connecting, set carrier frame, the subtract addition for permitting a little movement, et cetera, that goes on from there. But let's assume to the moment that one were to agree with your contention that the district were air in saying that connecting was means was described the function for purposes of means plus function claim. But what if you just looked at connecting as saying basically, if you read the claim as saying draft tongue means, which is connected to the carrier frame, which connects the carrier frame to the tractor, for permitting a little movement, et cetera. In other words, the draft tongue frame for N, which is connected close to N, for permitting movement. And you look at the draft tongue means, as encompassing, I guess on figure, I guess is figure one, encompassing item 15, the cleavus 16, and the bifurcated element, I guess 17. Where would that, what would your response be to that? My response to that would be the function is permitting pivotal movement, and that function is, the structure for that function is the cleavus 16, which allows the pivoting bolder hand to go through. And that would be then the structure, the corresponding structure, the means plus function clause. The connection in your current theoretical phrase would not be a function, it would just be physical connection, which would be anyway. The district court judge, and correctly found, always I think, found that for the performing the pivoting function, I think, am I correct in thinking that, found that the structure there was 15, 16. He didn't include 17 in that. I don't think we can read it that way, Your Honor. I think she just said that the function is both connecting and permitting pivotal movement, and the structure for performing those functions, she didn't break it down. I see, she didn't say that. Okay. And I think she did the same with the liquid link, it means. I'll tell you, Mr. Chess, if you're all finished, both your main argument and your rebuttal time, but you received a number of questions, so we'll restore your five minutes for your rebuttal. Thank you. And Mr. Bowen will give you an additional five minutes on your main argument if you need some of this, if you just give us the volume of 5. Thank you. Thank you. Good afternoon, May I please the court? So let me, I mean, the pounce on you before you say anything, but time flies quickly as we know, so I apologize. But getting to what I was finishing up discussing with Mr. Chess, what is your answer if one concludes that the district court judge did air in finding that, connecting represented a function for purposes of a 112-6 client. Where does that leave us in your means? I know you disagree with that, but assume that from the moment, where would we be? My reading of her Markman ruling is that she found that it's just 15 and 16 in that situation. Okay. So is that a problem for you then? Well, it's several points in response to that by May. And here key point is that you don't have this bifurcated piece, item 17. Sure. And I think a fair reading of her Pat is that the item 15, as its defined in specification, includes the bifurcated section 17. When ever 15 is referred to, it's an arrow to the entire pitch, the entire tongue, and the only specific tongue that's referenced in the patent actually goes from the clevis all the way back to the main frame. And it includes a telescoping section and it includes the bifurcated rear foot. Now, when we're talking about, I want to make sure I understand this because I think I was first listening in the case, I was, I got a little bit off base. When you're talking about this function here, performing pivotal movement, we're talking about the movement that takes place, if I correct, when the tractor makes a turn in the field. That's correct. Okay. It's the entire unit, the framing unit, including the tongue that's described in the path. There's no movement between the tongue itself and the main frame. The movement pivots up at the tractor hitch. So, it's your position, is it your position that for purposes of performing the function of pivotent that 15, 16 and 17 are all necessary? Yes, because your, our position is, that's the only structure that's disclosed. Why is that? Because it's defined as part of 15. And as I, as Judge Brightson alluded to before, I don't think the standard to look at is, what could the specification have said? It's what does the specifications say? Okay, here there's one specific embodiment described. And this entire issue that Mr. Chestnut has raised could have been solved very easily. If the drafter of that specification had been more clear and said, look, here's how we prefer to do it, however public, please take notice that in alternative forms of our invention, this bifurcated section is not needed. And I think when you look at the patent itself and the intrinsic evidence as a whole, and if I could make one note on this specific point that wasn't in our brief, so I was just giving warning, but it's in the prosecution history. There's an argument that was made, it's in amendment B, the second amendment, and it's at appendix page 3874 and 3875. And in that particular location, the patentee argued that the claimed invention, quote unquote, achieves a result that is not achieved by the Carter patent that had been cited against them. They go on to explain what that result is. They say that our invention allows two sets of real millions to be used, front and back, and therefore we can drop a unit right down in the center. They're talking about right through that bifurcated section of the tongue. Now that argument could not have been made if the entire tongue structure was not incorporated in the claims as they existed at that time, and they clearly included this draft tongue means. So it's not just a specification, it's the intrinsic record as a whole. Of course, the interpretation of the judge read gave to that exact indication. Unless there's other issues on the tongue, I'm happy to move. Go ahead with the rest of your questions. Mr. Testnacht points us to the summary of the invention as containing perhaps alternative embodiments or at least a shorthand description of embodiments from which the argues that we find that some of the features that are in the more elaborate and described embodiment are not necessary, even within the context of this design and your response. Several points again. One is I don't recall those points being made in the brief because I don't recall our having to address them in our response brief. Second is my reading of the summary is not quite the same as Mr. Testnacht. My reading of the summary is that the same machine is described. It's described in more general fashion, but it's the same machine and the language that links the summary into the detailed description of the invention. I don't think it says anywhere that there's alternative embodiments that are described in the summary that are beyond the purview of the very specific machine that's described throughout the path. We don't see that the hitch is mentioned in column 2 where Mr. Testnacht is pointed to some other type of hitch. There's only one described in a pattern from a structural standpoint. And certainly in accordance with the public policy, the high section 112 paragraph 6, what that is is a shortcut. It allows patenties to make a choice. I can describe my invention using the means language and if I do, here's the rules that have to be followed or I can describe it more broadly and use simply a tongue memory. They could have said a tongue memory and we wouldn't be here arguing this today. But they chose to use the language draft tongue means. They don't dispute that it's 112 6. And when that happens, very specific rules kick in. Let's all take a look at the function. Then let's define what it is. Let's look at the specification and see the specific structure disclosed. And again, this goes to the public notice function. The purpose of the specification, let's strike out the purpose of the claims when construed in my specification of prosecution is to give the public notice of what's covered or what's not. And when the draft or chooses the means language and chooses not to describe the structure in the claim, it's only fair to allow the public to assume that the structure is actually disclosed. Not general descriptions of things and not showing how they're connected like it is in the summary. That doesn't suffice. What suffices are particular embodiments. That's what this court has historically looked to in assessing the scope of means plus function structures. So I hope I've answered your question. I can briefly comment on the other one, both six issues. What about the connecting issue? They're saying basically that connecting is not a description of function because it doesn't, I think, come after four. It doesn't say four connecting, means four connecting. What's the response to that? Sure. In the context of the draft, tongue means and the power of the linkage means connecting clearly is describing a function because it's saying, here's what the means does. Here's what it does. Mr. Chestnut has pointed to claim three words connected between a curve. And there's a clear difference there. Claim three is describing the location of the power means followed by the function. So we think that the plain language itself sets forth that connecting is a function because there's no structural members getting from the hitch back to the main frame for the tongue means. And without that connecting language, again, you'd be missing linkages going from the carrier frame back to the lift frame for the power of the linkage means so that the express language connecting describes what the means does. What is its purpose? What is its function? Excuse me. Secondly, Mr. Chestnut hasn't cited a single case which stands for the proposition that where the word four is lacking in the claim language, that word that ends in ING such as connecting here should be construed as a function. But have you given cited a space the other way? You're right. We have the northward grung case and the Ferguson-Boward-Card case. But both, they didn't deal with the word connecting but it said means generating in one instance. Yeah, but they didn't mean both. They did those foreign cases in which you had like connecting four doing something and the word connecting was before the four. But what I'm saying is the one case is either northward or the other means generating. Yeah, but it doesn't present the precise issue. You understand that you don't need the word four and means plus function claim. But where you do, where you have that construct, the argument is that the function is the language appearing after the word four rather than the language appearing before it. And we haven't had a case involving that before, have we? Not on this precise connecting issue, but I think you can't tell me that. But I mean in terms of the use of the word four and means plus function claim with some description of the function coming before the word four and some coming afterwards. I see your point and I can't say on that precise point where authority which has made it a requirement or not. I assume for the moment that we read the word connecting as if it said draft means connected to said carrier frame and the tractor. Yes. Okay. Now, how would you construe that clause? Connected to the carrier frame and the hedge. But again, I could construe that in context. I think the answer is plainly look at it in context. Look at that precise language. Look at the means language which presumptively triggers the one twelve six application and make a determination is that part of the claim function. Well, I guess what I'm asking you for is it parsed that clause for me in a way. That you think would be consistent with your theory. The case because I think it is not unfair, frankly, to read that language the way I just translated. There's a problem here obviously. This claim is the most flattering thing you could say about is it's a hybrid. It's not a pure means plus function claim. It's got some structure and some means plus function. You could also call it a mess. But it's difficult to parse. And if we say connecting something to something else is really a reference to more description of structure than it is for description of function and therefore connected would be the word that is going there. How would you parse it? Again, I think you've hit the nail right on the head. Is it a description of structure or is it describing what the means that stated does? Well, of course, we face this from all the time. There are lots of words that describe structure as a screwdriver. It describes structure, but it also describes exactly what it does. And again, I'm going to take connected to in that context, your honor, and say that that should be construed as what the tongue does. What is it purpose? When you're looking at the function, the questions which are triggered are, what's the purpose of this means? What does it do versus on the other hand, where is it or what is it structurally? Those are the cases where the presumption can be overcome. Where, for example, there's many cases which this court holds where there's plenty of structure which follows application of the word means and therefore we're not even going to apply the statute at all. Here connected to, I can see how so many might argument both ways, but without any recitation of structure which follows it, which is the case here, my view is that 1126 should apply. That should be part of the function because it's clearly stated what the means does in the context of that claim limitation. If I can just briefly comment on the power of swing means which came up in Mr. Chess and that's argument. Again, the issue is not what could have been described in terms of the structure. This is a case where there's no disagreement on the function. There's from the hydraulic cylinder one, two additional links to the part that's actually rotated. I think that precedent is very clear that if the only structure described is these links are two 18 and two 21, which are there and the specification does not describe a specific alternative embodiment that the question has already been answered to those or the actual structures disclosed, that's what the court corrected found. There's still an issue and it was an issue in this case. It is an embodiment which lacks those elements equivalent. The claim still covers the actually disclosed structure and its equivalence, but that's not the issue for construing what structure goes into the claim. If I could go to one or two other points, I have about five or six minutes left. For the reasons we set forth in our brief, we don't think that we should be here today. Even if Mr. Chess not as right on all of his points, we respectfully submit that the judgment of non-apprentive and actually the verdict should be affirmed. This is not a forum where any argue or any error that was made below provides an opportunity to come in and... I'll be candid with you. I thought that argument that you're making completely without support. Can you point me to any case that suggests that you have a general verdict? The Kuido case here are. It's one that we cited. There was a general verdict which we put in our appendix. It's at A5116. And the verdict said, is the patent infringed yes or no? That was a case where there were at least four claim limitations that were disputed below. Turnkey on appeal contested the claim construction on two, pre-determined means and the flow record, and the evidence on others. And this court took a look at the facts and said, we can dispose of this based on one claim limitation. The pre-determined means they looked and said the claim construction issue were not going to treat any differently than below. There actually had been a waiver and there was sufficient evidence. So in that case, picking one disputed claim element, the court affirmed the general verdict. But your problem is that the Supreme Court and the eight circuit have repeatedly said that where you have a general verdict, not talking about sufficient to the evidence, but talking about errors in the instruction, that if there's an error in the instruction that general verdict has to go, if it's a one theory of recovery or one defense. I don't understand in the Abbott case, which you rely on, so heavily it's not a case involving a general verdict, it was a special verdict in which the jury had found several claim limitations. That's not the situation here. I mean, how do you deal with fun kids and these other Supreme Court cases? There are among, I think that there is a major distinction between a verdict that relies on separate legal theories of recovery or a number of separate defenses, which is the line of cases cited by Mr. Chestnut and his reply, versus a situation where there's a single defense or a single legal theory that's supported by multiple grounds. For example, in the North Point case, there was an issue of anticipation, and this court held very clearly. But anticipation is a single theory of defense, even though there were five references asserted to anticipate, and error was being argued with respect to at least one or two or three. But that was the thought that I'm completely, I have to say, I'm completely in agreement with Judge Diakie in his take on this, and I was surprised to see the argument in your brief in light of evidence. This exact panel sat on North Point, and the point, I thought, in that case, was that there's a distinction between legal errors and factual insufficiency, and the point at North Point was to say factual insufficiency is something as to which you can't simply win on one of multiple theories and then say, aha, the jury might have found that theory as to be the factual theory for finding liability. And in as much as the evidence is insufficient on that theory, I get a reversal. No, that's what the Supreme Court said in Britain. But it said exactly the opposite, which would affect the legal errors. And what we're dealing with here is illegal. This case is, it seems to me, no different. And it's positive that if the trial judge had construed the claim here to require that the implement be colored green, and that the jury had come in with a general verdict of non-infringement, I don't think you'd be arguing that who cares about the green business? Because they have to prove that every single claim limitation was unsupportable. I don't think you'd be making that argument. Because it seems so clearly possible that the jury might have been this led by the legal error. In this case, I asked the court to take note of the fact that we attempted to, again, avoid this problem by proposing a special verdict, which outlined the precise claim elements and dispute all five of them for each independent claim and ask the jury to indicate yes or no. And it would have been, like would have been a lot easier for us, at least. And perhaps for you, if the special verdict had been adopted. But I know of no case, maybe you can point this to the one. But I know of no case in which we've held that the failure to agree to, and by the district court, the failure to adopt, a special verdict, is supposed to a general verdict, requires a different approach for the question of legal error. Well, I can say this, that on the Federal Circuit Authority that I'm aware of in the infringement context, where there's been legal error shown, the cases that the balance rely on E.C. Lab and Wenger, for example, involved a single claim limitation, which was in dispute. A single one, and obviously there, if the error was shown to be prejudicial, the patent team should be entitled to a new trial on that ground. But here, let's say there was ten limitations at issue. And parties go and spend weeks and weeks and weeks trying a complex case, spending all this money. And under the appellant theory, one claim construction, one limitation is shown to have a claim constructioner. Under the appellant theory, this court would have to vacate that verdict and send it all back to be redone. Well, it may not make any sense, but it's for law. And the Supreme Court has said that. It was the holding as I waited a fun case, for example, in their earlier cases. I mean, is that what fun case, then? I'm not specifically familiar with the facts as I stand here today as some kids. I just want to just like hand comment, but I'd be happy to check it, but you know, somehow you desire. Well, I don't think it. See that the red lights on, but I'm happy to answer any further questions. I think all of the questions that we have have been posed as both. Thank you. Tessa, you have your five minutes for the battle. I'll try to take up the points Mr. Bowling made in the order that he made them. He first referred to an argument that was in his pre relative to the argument made in the prosecution history, trying to distinguish the Carter reference by saying Carter doesn't allow you to have front row units. The contact of that argument was the invention permits this and not the invention required that the claim don't require front row units. And even if it did, it wouldn't require a barricaded hitch because of front row units wouldn't have to be on the center line. It could be off the center line just the way the back row units are not on the center line. With respect to the corridor case, I think the court is well aware of the corridor case. There was no error claim interpretation, no case cited by case involved in error of erroneous jury instruction. That totally distinguishes the case we have here from the cases that the case relied on. As far as the verdict form, the judge selected a room verdict form. Both sides proposed the verdict form. The judge obviously wanted a very simplified form, which is her right. Would you oppose the expected verdict? No. Right. What happened was when the time came to put the proposed pre-trial verdict together, case had a proposed verdict and we said that's pretty complicated. We don't like that here. It's hours. We've both attached our proposed verdict form to the pre-trial verdict. We never heard anything more about the verdict form until the judge came up with her own verdict form and presented it to us. She came up with her own verdict form. She obviously had a very simple form. And even the simplified form that she came up with obviously confused the jury because they didn't answer question number two. So I think she had justification for trying to simplify it as much as possible. The echo lab case, I think, is directly in claim. Mr. Bolin said there was only one claim limitation. There were actually two claim limitations that this court reviewed. One was the reflecting service and the other one was reflected light. The court held that in claim 16, the district court got one of those limitations right, but in the reverse verdict of non-fringement on claim 16. We had a one of those. But as on the connecting point, we struggle with it. We struggle with it and we can't come up with an answer and serve in equal force. Doesn't the patent he under those circumstances lose? I mean, as to whether connecting a description of function or a description of instruction. No. Even if your honors decide that connecting is a functional description under the means plus function analysis, there is no necessity to include the bifurcated portion. No, I understand that. My question wasn't clear. I'm saying you lose on the connecting issue being functional. If we can't figure out which it should be, if we're stuck, that doesn't the patent he lose. No, because even if you can't figure out, in other words, if you accept the district court's interpretation that connecting is functional language, we can't tell whether functional or structural. Well, then I think men is not a means plus function plus because if you cannot say that this is a function. I think we're looking for some help. I know you don't want to give any ground and that's understandable, but I do think that the principle of mathematical terms is the general principle that where the courts and equitvoids are a claim-construction issue, that you lay it off on the patent D because of patent D was the party that was in a position where the draft was in. That's exactly what I think of the preperate rule as a collective patent. But as I understand the analysis under section 112 paragraph 6, you first determine whether it's functional and if it's not functional, then it's not a means plus function. So if your orders decide that connecting, you don't, you can't make up your mind, I would say, then the decision has to be it's not functional language. Thank you. Mr. Chessner, thank you. The case is submitted, although I would just say up here. Oh, Mr. Falman, I'm sorry. Well, that concludes the oral argument in number 05