Yes, yes, yes, yes. Good morning, please proceed. Good morning, Mayor. Please, the Court. My name is Ken Florek. I'm here on behalf of the Talent Planeth Quick Products. Trimmer heads in the industry at the time of conception of the press and invention were time consuming and hard to load and customers complained about these designs. The pads to Trimmer head filled a long belt need in the yard, because it was the most quickly in use of it. We launched into that work. We finished with the question whether there is a final test with the finish line. My understanding is yes, we are. What about the inequitable conduct? Yes, there was one counterclaim raised for the validity and inequitable conduct and the trial court did decide knowing validity, which was the basis, the sole basis of the counterclaim. The same validity
. Any other possibility? Well, again, there was a single counterclaim for an invalidity which solely represented inequitable conduct. There was the only allegations in the amended answer. Well, the like-pagan equitable conduct was a pretty serious aspect of this counterclaim. In fact, there is an allegation of fraud, fraud, which I certainly take a dim view of, because there was no evidence of fraud. There was a failure to cite a reference, which doesn't even seem to be an anticipatory reference. A failure to cite a reference as fraud. That is quite different from invalidity. It's also a reprehensible assertion not backed up by evidence. One wonders whether it even complies with rule 11 standards. But it certainly is a different allegation than invalidity. I understand that you're honoring and I concur. My point, though, is that the defendant's never put on any evidence of inequitable conduct at trial
. And the defendant's have agreed that that was the case. Well, wouldn't that make the inequitable conduct half of the unitary counterclaim subject to dismissal under rule 12b6 perhaps? But I don't see anywhere where the trial judged dismiss it under 12b6 on the merits or otherwise. He simply never said anything at all directed toward the inequitable conduct assertion. My understanding, your honor, is that the trial judged so a single counterclaim and labeled it with the S. So, to these letters we got talked about, understandings, but the record doesn't show it. The record is we did put in additional documentation to show what we had from the record that it showed it. I mean, the letters you wrote to us. Yes. That's what I'm saying. The record in the trial court does not show that it was disposed of as Chief Judge just said. Not by name. No, you're right
. Well. You're saying there was one counterclaim. There was one counterclaim. And it was dismissed. It was dismissed. That's your point. Yes, sir. Well, we'll have to decide. Well, you said there was one counterclaim, what two parts do I promise you in validity? You and one was not enforceability. But again, the entire counterclaim dealt with the inequitable conduct. It was a single aspect that was raised in the counterclaim. And it was the single counterclaim that was dismissed by the trial judge
. Obviously, it's an anticipation where we're not part of the counterclaim. Not as I read it, Your Honor. Well, then we'll talk about it later. Why is the word invalidity in there if it doesn't deal with things such as obviously? It did not write the answer to your Honor. Yes, sir. Well, we can question your opponent. You might as well address the merits. Assuming we have jurisdiction. Thank you, Your Honor. Again, the trimmer heads at the time of conception of this invasion. We're time for assuming parts to load and cut the line. Mr
. Floorick, if I can make a suggestion to you, you shouldn't use any of your very fleeting precious time on the basic facts. We've read the briefs, we've looked at diagrams, we've read the patents, we have a feel for this technology, we have a very thorough opinion by an experienced district judge, we have a bench trial, we have findings of fact, we have legal conclusions. Yes, Your Honor. You have a heavy burden to show that there was clear error in the infringement findings of the district judge. Well, there was clear error, Your Honor. The clamping means that the district court found to be a means plus function is not a means plus function. And that's where the district court aired in the clamp construction here specifically. I may be self evident to you, but it's not at all self evident to me that he is wrong when he says the presumption of 126 treatment is triggered by the use of the word means, further reinforced by the vagueness of the concept of clamping. And then he says quite specifically that presumption was never rebutted. Now, where was it rebutted? It was rebutted in the prosecution history, Your Honor, where the original prosecution history of the 424. You better point us to something specific that rebutts the presumption because it seems to me he's 100% right that the presumption is triggered. There may be a presumption, Your Honor, but under Greenberg and Lighting World, under Greenberg especially, that is rebutted when there's sufficient structure
. Now, Greenberg specifically called out clamp as a structure that while it takes its function from its name, it also provides the structure. Your claim doesn't say clamp, it says clamping means. I call a clamp that something that clamps. Here we're talking about a cam being urged against a wall and then we have another embodiment with a different shape. This doesn't sound like the conventional meaning of clamp. It's really clamping means which performs a certain function which has structures, specific structures in this back. No specific structures as defendant's expert pointed out at Drone appendix 590 lines 8 through 19. All such members have, all such clamps have two members that are brought together by a force. That is the basic structural definition of clamp or clamping. The two members coming together under a force to frictionally hold something between them. Again, though the expert pointed out a wide number of different ways that clamping could be performed, every clamp has that structure. So the fact that structure is in every clamp makes that structure
... What structure? Two members brought together by a force to frictionally hold something between them. That's a specific well-known structure. Yes it is, you're on according to the testimony here. Two members, we have a wall, we have a clamping member and we have a force in a spring that holds them together. So because of that, an undergreen bird which specifically calls a clamp, one of the items, by the testimony that clamps have this specific structure, two members brought together by a force. You also have a spring here and you have a center of gravity. Those are in deep-pending clamps, Your Honor. Clang 2 talks about the pivoting of the clamping member clamping. That's assuming we agree with you that there's no 112-6 here. Yes, Your Honor
. If there's 112-6, then these are part of the clamp. But then you go to the prosecution history, which is where you're supposed to determine the meaning of clamping means and you see that in the first instance, in the parent application, where clamping means is discussed, the examiner first raised a restriction requirement and brought out four different species and that's a J722, not 772. The examiner pulled out four species, the applicant elected the first species, the first group, which was directed specifically to fit years 1 through 3 of the patent. All of those are the spring biased clamping member as we've discussed. And then in the amendment, Clang 28 was added, Clang 128 became Clang 1 and it was argued that none of the prior references showed the spring bias. Now again, the spring bias was added through the restriction requirement and the argument in the amendment fits that none of the prior has it. I'd like to move on to the construction of Clang 15, where again we see that the district court aired in construction. First instance, calling out a spring as ambiguous. A spring has an obvious meaning well understood and to consider ambiguous, was narrow around part of the trial. Well, that doesn't say spring means. No, it does not. But the previous claim limitation does go back to clamping member and if that includes a spring, then that is limited to what's in the specification
. It becomes less than generic. Clang 15 is an additional independent claim planner. I know, but part of the claim is to clamping member. Well, Clang Ping member, not clamping means the clamping member is one of the two members that are pushed together by a force to clamp something frictionally in between. The wall is one and Clang 15 is much more detailed in the elements. There's a wall on one side, which is one of the clamping members. There's one of the two clamping members. Of course, that claim resides a clamping member pivotally mounted. It does, Your Honor. The accused isn't pivotally mounted. And because of that, we're looking to the doctrine of equivalents. Again, the considerations that the district court did not take into effect with the fulfillment of a long felt need in the art, the commercial success of the invention and that there was no prosecution, history, stop, or whatsoever, as to this member
. Again, we have a device that, a plaintiff came up with where instead of winding line or weaving it through, you would take a piece of strength and just push it in. And that's how it used to load. It was the most quickly and easily loaded out there. And that's what the district court found as a matter of fact. The defendant's device was exactly the same thing. You pushed it in and it helped. Everything worked exactly the same. The slide-ably mounted clamping member and the pivotally mounted clamping member are equivalent in this regard. Based on the range of equivalents, the fact that it performs the same function in the same way to achieve the same result. I'd like to say the rest for you. We'll do that. Thank you. Mr. Foster. Thank you, Your Honor. May I please support? I know the person you want to hear from me has to be commissioned to connect with conduct allegations in the answer and the counter claim. Well, principally finality, but that's the base of it. The, a little bit of fact, a predicate for the basis for the allegations, again with. And the, the fact that this is in the record, there was a prior history with regard to prosecution of the application of the parent patent known as the 424 patent. And during the course of that prosecution, a claim 28, a new claim after the initial application had been introduced by the applicant. After dialogue back and forth between the patent officer and applicant, that claim was rejected on the basis of prior art. That claim then reappeared in the form of claim one in the 666 patent, which is the patent that issue in this case with absolutely nothing in the file record to explain why it was that an identical claim that had been rejected in the parent patent now reappeared with no further discussion with the patent officer. This is why it overcame prior art. Also during the course of the prosecution of the 666 patent, there have been events in Europe where the European patent office had taken certain positions with regard to
. Mr. Foster. Thank you, Your Honor. May I please support? I know the person you want to hear from me has to be commissioned to connect with conduct allegations in the answer and the counter claim. Well, principally finality, but that's the base of it. The, a little bit of fact, a predicate for the basis for the allegations, again with. And the, the fact that this is in the record, there was a prior history with regard to prosecution of the application of the parent patent known as the 424 patent. And during the course of that prosecution, a claim 28, a new claim after the initial application had been introduced by the applicant. After dialogue back and forth between the patent officer and applicant, that claim was rejected on the basis of prior art. That claim then reappeared in the form of claim one in the 666 patent, which is the patent that issue in this case with absolutely nothing in the file record to explain why it was that an identical claim that had been rejected in the parent patent now reappeared with no further discussion with the patent officer. This is why it overcame prior art. Also during the course of the prosecution of the 666 patent, there have been events in Europe where the European patent office had taken certain positions with regard to. Why, why is this all fraud? Didn't we get away from that odd hominem term and. We talked about inequitable conduct if that's what it was. Well, the term fraud doesn't exist in a vacuum. It's fraud on the patent office which is a term bar that, as I understand it, has been used over the years to equate to inequitable conduct. And I inquired of patent counsel as to whether or not. I think the equation has been broken through the years. It takes more than inequitable conduct to prove fraud. It takes affirmative actions to prove fraud in any event. Why wasn't that inequitable conduct claim undecided and doesn't that affect finality? Well, I don't think it does because I don't think it does. The whole counterclaim, my lower title said, Invalidity and Unforceability. The whole counterclaim has inequitable conduct except for the use of the word fraud at its heart. Well, we did not flesh out or during discovery elicit the kind of evidence that in my judgment warranted going to trial on the issue of inequitable conduct
. Why, why is this all fraud? Didn't we get away from that odd hominem term and. We talked about inequitable conduct if that's what it was. Well, the term fraud doesn't exist in a vacuum. It's fraud on the patent office which is a term bar that, as I understand it, has been used over the years to equate to inequitable conduct. And I inquired of patent counsel as to whether or not. I think the equation has been broken through the years. It takes more than inequitable conduct to prove fraud. It takes affirmative actions to prove fraud in any event. Why wasn't that inequitable conduct claim undecided and doesn't that affect finality? Well, I don't think it does because I don't think it does. The whole counterclaim, my lower title said, Invalidity and Unforceability. The whole counterclaim has inequitable conduct except for the use of the word fraud at its heart. Well, we did not flesh out or during discovery elicit the kind of evidence that in my judgment warranted going to trial on the issue of inequitable conduct. And during at the end of the trial. Well, in other words, it was a shotgun pleading. Well, no, because I explained that there was a basis for making the allegation to begin with. And it's so often the case when you're alleging intent. A lot of you can start with the fact that the initial good faith basis for making the allegation and you're trying to prove it during discovery. After the course of the plaintiffs case and the defendant's case, I made the decision that we were not going to pursue the inequitable conduct claim. There was then a discussion apparently off the record, although I can't honestly recalls I stand here, why that occurred. But there was a discussion off the record with the charge of charge, where I said that I was not going to be presenting evidence. And it was done in the context of whether or not Mr. Plurr had to bring in a rebuttal witness specifically Mr. Plurr. Mr
. And during at the end of the trial. Well, in other words, it was a shotgun pleading. Well, no, because I explained that there was a basis for making the allegation to begin with. And it's so often the case when you're alleging intent. A lot of you can start with the fact that the initial good faith basis for making the allegation and you're trying to prove it during discovery. After the course of the plaintiffs case and the defendant's case, I made the decision that we were not going to pursue the inequitable conduct claim. There was then a discussion apparently off the record, although I can't honestly recalls I stand here, why that occurred. But there was a discussion off the record with the charge of charge, where I said that I was not going to be presenting evidence. And it was done in the context of whether or not Mr. Plurr had to bring in a rebuttal witness specifically Mr. Plurr. Mr. Cacella. And I will take responsibility for them when we go back out not being aware that that was off the record. And then not walking out of the court and making the record clear that that claim or that portion of the counterclaim was being withdrawn. Are you of the view that the case is final or are you saying you're taking responsibility? Do you think there's a gap in the finality? On a purely procedural basis, I do, there is no question that there should have been some colloquial record between myself, defense counsel and the court with regard to that aspect of the plea. So you're not resting on the idea that there's one counterclaim and that was dismissed? No, I am not because we litigated the issue of the validity or the invillidity of the certainly claims 1, 2, 3, and 15 of the 666 patent irrespective of the four corners of the complaint throughout the discovery, throughout the pre trial proceedings, the pre trial statements, the submissions, the findings of fact, the evidence of trial and the post trial submissions. That issue was litigated. So I submit the issue of the validity of certain of the claims of issue in this case, are before the court appropriate for disposition and it's something that I came today prepared to argue. But that assumes finality. In validity isn't before the court of the case isn't final. I can see that in your eye. There is no question that if this court decides that before can address the issue of the validity or invillidity of the subject claims that there has to be a determination in the court below and that's not there, then you can't decide that issue. I can see that point
. Cacella. And I will take responsibility for them when we go back out not being aware that that was off the record. And then not walking out of the court and making the record clear that that claim or that portion of the counterclaim was being withdrawn. Are you of the view that the case is final or are you saying you're taking responsibility? Do you think there's a gap in the finality? On a purely procedural basis, I do, there is no question that there should have been some colloquial record between myself, defense counsel and the court with regard to that aspect of the plea. So you're not resting on the idea that there's one counterclaim and that was dismissed? No, I am not because we litigated the issue of the validity or the invillidity of the certainly claims 1, 2, 3, and 15 of the 666 patent irrespective of the four corners of the complaint throughout the discovery, throughout the pre trial proceedings, the pre trial statements, the submissions, the findings of fact, the evidence of trial and the post trial submissions. That issue was litigated. So I submit the issue of the validity of certain of the claims of issue in this case, are before the court appropriate for disposition and it's something that I came today prepared to argue. But that assumes finality. In validity isn't before the court of the case isn't final. I can see that in your eye. There is no question that if this court decides that before can address the issue of the validity or invillidity of the subject claims that there has to be a determination in the court below and that's not there, then you can't decide that issue. I can see that point. Obviously speaking for I think both parties, we would like disposition certainly on the issues that you do have before you. I'm suggesting that my comments here today provide the necessary finality for purposes of addressing the invillidity issue. What about the case law suggesting that pleadings can be deemed to conform to the proof actually presented by the burden bearing party without formal amendment of the complaint itself? That is exactly the case law and the jurisprudence to which I was alluding when I described the procedure below where the parties actually litigated the issues of the validity of claims. You are abandoning with drawing, foreswaring, a counter-climber of a suit in the future. And that will conduct a matter? Yes. We're not leaving it open so that I can turn around and walk out whatever happens on this appeal while another lawsuit on the basis is going to be over. You're saying no. That will happen? Now one more collateral question. Whatever happened to the other party, national express at all, they seem to have disappeared from this case as far as it's present posture. No, they're defendants, but they are not cross-talented. Torbjian would be simply the cross-talented on the finding of validity and validity. They were defendants in the initial claim for the court
. Obviously speaking for I think both parties, we would like disposition certainly on the issues that you do have before you. I'm suggesting that my comments here today provide the necessary finality for purposes of addressing the invillidity issue. What about the case law suggesting that pleadings can be deemed to conform to the proof actually presented by the burden bearing party without formal amendment of the complaint itself? That is exactly the case law and the jurisprudence to which I was alluding when I described the procedure below where the parties actually litigated the issues of the validity of claims. You are abandoning with drawing, foreswaring, a counter-climber of a suit in the future. And that will conduct a matter? Yes. We're not leaving it open so that I can turn around and walk out whatever happens on this appeal while another lawsuit on the basis is going to be over. You're saying no. That will happen? Now one more collateral question. Whatever happened to the other party, national express at all, they seem to have disappeared from this case as far as it's present posture. No, they're defendants, but they are not cross-talented. Torbjian would be simply the cross-talented on the finding of validity and validity. They were defendants in the initial claim for the court. Well, I understand that, but I take it that even though there was participation below by Mr. Steinman from blank Rome, we don't have a brief from Mr. Steinman here. Well, I represented all parties at trial and get you... Do you represent all parties on appeal? Yes, and you look... Then why doesn't your brief so describe..
. Well, I understand that, but I take it that even though there was participation below by Mr. Steinman from blank Rome, we don't have a brief from Mr. Steinman here. Well, I represented all parties at trial and get you... Do you represent all parties on appeal? Yes, and you look... Then why doesn't your brief so describe... You all know, I'm holding my copy of the corrected brief of the red brief. And I identify myself and my firm's representing... Yes, you're quite right. What threw me off is on the reply brief, you represent yourself as speaking only for Torbjian ink. And so I got mixed up about who is speaking for those other defendants like national express, but I should have checked the brief as well. Thank you. Thank you. Thank you. Thank you. Thank you
. You all know, I'm holding my copy of the corrected brief of the red brief. And I identify myself and my firm's representing... Yes, you're quite right. What threw me off is on the reply brief, you represent yourself as speaking only for Torbjian ink. And so I got mixed up about who is speaking for those other defendants like national express, but I should have checked the brief as well. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you
. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you.
Yes, yes, yes, yes. Good morning, please proceed. Good morning, Mayor. Please, the Court. My name is Ken Florek. I'm here on behalf of the Talent Planeth Quick Products. Trimmer heads in the industry at the time of conception of the press and invention were time consuming and hard to load and customers complained about these designs. The pads to Trimmer head filled a long belt need in the yard, because it was the most quickly in use of it. We launched into that work. We finished with the question whether there is a final test with the finish line. My understanding is yes, we are. What about the inequitable conduct? Yes, there was one counterclaim raised for the validity and inequitable conduct and the trial court did decide knowing validity, which was the basis, the sole basis of the counterclaim. The same validity. Any other possibility? Well, again, there was a single counterclaim for an invalidity which solely represented inequitable conduct. There was the only allegations in the amended answer. Well, the like-pagan equitable conduct was a pretty serious aspect of this counterclaim. In fact, there is an allegation of fraud, fraud, which I certainly take a dim view of, because there was no evidence of fraud. There was a failure to cite a reference, which doesn't even seem to be an anticipatory reference. A failure to cite a reference as fraud. That is quite different from invalidity. It's also a reprehensible assertion not backed up by evidence. One wonders whether it even complies with rule 11 standards. But it certainly is a different allegation than invalidity. I understand that you're honoring and I concur. My point, though, is that the defendant's never put on any evidence of inequitable conduct at trial. And the defendant's have agreed that that was the case. Well, wouldn't that make the inequitable conduct half of the unitary counterclaim subject to dismissal under rule 12b6 perhaps? But I don't see anywhere where the trial judged dismiss it under 12b6 on the merits or otherwise. He simply never said anything at all directed toward the inequitable conduct assertion. My understanding, your honor, is that the trial judged so a single counterclaim and labeled it with the S. So, to these letters we got talked about, understandings, but the record doesn't show it. The record is we did put in additional documentation to show what we had from the record that it showed it. I mean, the letters you wrote to us. Yes. That's what I'm saying. The record in the trial court does not show that it was disposed of as Chief Judge just said. Not by name. No, you're right. Well. You're saying there was one counterclaim. There was one counterclaim. And it was dismissed. It was dismissed. That's your point. Yes, sir. Well, we'll have to decide. Well, you said there was one counterclaim, what two parts do I promise you in validity? You and one was not enforceability. But again, the entire counterclaim dealt with the inequitable conduct. It was a single aspect that was raised in the counterclaim. And it was the single counterclaim that was dismissed by the trial judge. Obviously, it's an anticipation where we're not part of the counterclaim. Not as I read it, Your Honor. Well, then we'll talk about it later. Why is the word invalidity in there if it doesn't deal with things such as obviously? It did not write the answer to your Honor. Yes, sir. Well, we can question your opponent. You might as well address the merits. Assuming we have jurisdiction. Thank you, Your Honor. Again, the trimmer heads at the time of conception of this invasion. We're time for assuming parts to load and cut the line. Mr. Floorick, if I can make a suggestion to you, you shouldn't use any of your very fleeting precious time on the basic facts. We've read the briefs, we've looked at diagrams, we've read the patents, we have a feel for this technology, we have a very thorough opinion by an experienced district judge, we have a bench trial, we have findings of fact, we have legal conclusions. Yes, Your Honor. You have a heavy burden to show that there was clear error in the infringement findings of the district judge. Well, there was clear error, Your Honor. The clamping means that the district court found to be a means plus function is not a means plus function. And that's where the district court aired in the clamp construction here specifically. I may be self evident to you, but it's not at all self evident to me that he is wrong when he says the presumption of 126 treatment is triggered by the use of the word means, further reinforced by the vagueness of the concept of clamping. And then he says quite specifically that presumption was never rebutted. Now, where was it rebutted? It was rebutted in the prosecution history, Your Honor, where the original prosecution history of the 424. You better point us to something specific that rebutts the presumption because it seems to me he's 100% right that the presumption is triggered. There may be a presumption, Your Honor, but under Greenberg and Lighting World, under Greenberg especially, that is rebutted when there's sufficient structure. Now, Greenberg specifically called out clamp as a structure that while it takes its function from its name, it also provides the structure. Your claim doesn't say clamp, it says clamping means. I call a clamp that something that clamps. Here we're talking about a cam being urged against a wall and then we have another embodiment with a different shape. This doesn't sound like the conventional meaning of clamp. It's really clamping means which performs a certain function which has structures, specific structures in this back. No specific structures as defendant's expert pointed out at Drone appendix 590 lines 8 through 19. All such members have, all such clamps have two members that are brought together by a force. That is the basic structural definition of clamp or clamping. The two members coming together under a force to frictionally hold something between them. Again, though the expert pointed out a wide number of different ways that clamping could be performed, every clamp has that structure. So the fact that structure is in every clamp makes that structure... What structure? Two members brought together by a force to frictionally hold something between them. That's a specific well-known structure. Yes it is, you're on according to the testimony here. Two members, we have a wall, we have a clamping member and we have a force in a spring that holds them together. So because of that, an undergreen bird which specifically calls a clamp, one of the items, by the testimony that clamps have this specific structure, two members brought together by a force. You also have a spring here and you have a center of gravity. Those are in deep-pending clamps, Your Honor. Clang 2 talks about the pivoting of the clamping member clamping. That's assuming we agree with you that there's no 112-6 here. Yes, Your Honor. If there's 112-6, then these are part of the clamp. But then you go to the prosecution history, which is where you're supposed to determine the meaning of clamping means and you see that in the first instance, in the parent application, where clamping means is discussed, the examiner first raised a restriction requirement and brought out four different species and that's a J722, not 772. The examiner pulled out four species, the applicant elected the first species, the first group, which was directed specifically to fit years 1 through 3 of the patent. All of those are the spring biased clamping member as we've discussed. And then in the amendment, Clang 28 was added, Clang 128 became Clang 1 and it was argued that none of the prior references showed the spring bias. Now again, the spring bias was added through the restriction requirement and the argument in the amendment fits that none of the prior has it. I'd like to move on to the construction of Clang 15, where again we see that the district court aired in construction. First instance, calling out a spring as ambiguous. A spring has an obvious meaning well understood and to consider ambiguous, was narrow around part of the trial. Well, that doesn't say spring means. No, it does not. But the previous claim limitation does go back to clamping member and if that includes a spring, then that is limited to what's in the specification. It becomes less than generic. Clang 15 is an additional independent claim planner. I know, but part of the claim is to clamping member. Well, Clang Ping member, not clamping means the clamping member is one of the two members that are pushed together by a force to clamp something frictionally in between. The wall is one and Clang 15 is much more detailed in the elements. There's a wall on one side, which is one of the clamping members. There's one of the two clamping members. Of course, that claim resides a clamping member pivotally mounted. It does, Your Honor. The accused isn't pivotally mounted. And because of that, we're looking to the doctrine of equivalents. Again, the considerations that the district court did not take into effect with the fulfillment of a long felt need in the art, the commercial success of the invention and that there was no prosecution, history, stop, or whatsoever, as to this member. Again, we have a device that, a plaintiff came up with where instead of winding line or weaving it through, you would take a piece of strength and just push it in. And that's how it used to load. It was the most quickly and easily loaded out there. And that's what the district court found as a matter of fact. The defendant's device was exactly the same thing. You pushed it in and it helped. Everything worked exactly the same. The slide-ably mounted clamping member and the pivotally mounted clamping member are equivalent in this regard. Based on the range of equivalents, the fact that it performs the same function in the same way to achieve the same result. I'd like to say the rest for you. We'll do that. Thank you. Mr. Foster. Thank you, Your Honor. May I please support? I know the person you want to hear from me has to be commissioned to connect with conduct allegations in the answer and the counter claim. Well, principally finality, but that's the base of it. The, a little bit of fact, a predicate for the basis for the allegations, again with. And the, the fact that this is in the record, there was a prior history with regard to prosecution of the application of the parent patent known as the 424 patent. And during the course of that prosecution, a claim 28, a new claim after the initial application had been introduced by the applicant. After dialogue back and forth between the patent officer and applicant, that claim was rejected on the basis of prior art. That claim then reappeared in the form of claim one in the 666 patent, which is the patent that issue in this case with absolutely nothing in the file record to explain why it was that an identical claim that had been rejected in the parent patent now reappeared with no further discussion with the patent officer. This is why it overcame prior art. Also during the course of the prosecution of the 666 patent, there have been events in Europe where the European patent office had taken certain positions with regard to. Why, why is this all fraud? Didn't we get away from that odd hominem term and. We talked about inequitable conduct if that's what it was. Well, the term fraud doesn't exist in a vacuum. It's fraud on the patent office which is a term bar that, as I understand it, has been used over the years to equate to inequitable conduct. And I inquired of patent counsel as to whether or not. I think the equation has been broken through the years. It takes more than inequitable conduct to prove fraud. It takes affirmative actions to prove fraud in any event. Why wasn't that inequitable conduct claim undecided and doesn't that affect finality? Well, I don't think it does because I don't think it does. The whole counterclaim, my lower title said, Invalidity and Unforceability. The whole counterclaim has inequitable conduct except for the use of the word fraud at its heart. Well, we did not flesh out or during discovery elicit the kind of evidence that in my judgment warranted going to trial on the issue of inequitable conduct. And during at the end of the trial. Well, in other words, it was a shotgun pleading. Well, no, because I explained that there was a basis for making the allegation to begin with. And it's so often the case when you're alleging intent. A lot of you can start with the fact that the initial good faith basis for making the allegation and you're trying to prove it during discovery. After the course of the plaintiffs case and the defendant's case, I made the decision that we were not going to pursue the inequitable conduct claim. There was then a discussion apparently off the record, although I can't honestly recalls I stand here, why that occurred. But there was a discussion off the record with the charge of charge, where I said that I was not going to be presenting evidence. And it was done in the context of whether or not Mr. Plurr had to bring in a rebuttal witness specifically Mr. Plurr. Mr. Cacella. And I will take responsibility for them when we go back out not being aware that that was off the record. And then not walking out of the court and making the record clear that that claim or that portion of the counterclaim was being withdrawn. Are you of the view that the case is final or are you saying you're taking responsibility? Do you think there's a gap in the finality? On a purely procedural basis, I do, there is no question that there should have been some colloquial record between myself, defense counsel and the court with regard to that aspect of the plea. So you're not resting on the idea that there's one counterclaim and that was dismissed? No, I am not because we litigated the issue of the validity or the invillidity of the certainly claims 1, 2, 3, and 15 of the 666 patent irrespective of the four corners of the complaint throughout the discovery, throughout the pre trial proceedings, the pre trial statements, the submissions, the findings of fact, the evidence of trial and the post trial submissions. That issue was litigated. So I submit the issue of the validity of certain of the claims of issue in this case, are before the court appropriate for disposition and it's something that I came today prepared to argue. But that assumes finality. In validity isn't before the court of the case isn't final. I can see that in your eye. There is no question that if this court decides that before can address the issue of the validity or invillidity of the subject claims that there has to be a determination in the court below and that's not there, then you can't decide that issue. I can see that point. Obviously speaking for I think both parties, we would like disposition certainly on the issues that you do have before you. I'm suggesting that my comments here today provide the necessary finality for purposes of addressing the invillidity issue. What about the case law suggesting that pleadings can be deemed to conform to the proof actually presented by the burden bearing party without formal amendment of the complaint itself? That is exactly the case law and the jurisprudence to which I was alluding when I described the procedure below where the parties actually litigated the issues of the validity of claims. You are abandoning with drawing, foreswaring, a counter-climber of a suit in the future. And that will conduct a matter? Yes. We're not leaving it open so that I can turn around and walk out whatever happens on this appeal while another lawsuit on the basis is going to be over. You're saying no. That will happen? Now one more collateral question. Whatever happened to the other party, national express at all, they seem to have disappeared from this case as far as it's present posture. No, they're defendants, but they are not cross-talented. Torbjian would be simply the cross-talented on the finding of validity and validity. They were defendants in the initial claim for the court. Well, I understand that, but I take it that even though there was participation below by Mr. Steinman from blank Rome, we don't have a brief from Mr. Steinman here. Well, I represented all parties at trial and get you... Do you represent all parties on appeal? Yes, and you look... Then why doesn't your brief so describe... You all know, I'm holding my copy of the corrected brief of the red brief. And I identify myself and my firm's representing... Yes, you're quite right. What threw me off is on the reply brief, you represent yourself as speaking only for Torbjian ink. And so I got mixed up about who is speaking for those other defendants like national express, but I should have checked the brief as well. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you