Known in medical against Connicka Minola photo Mr. help me with the pronunciation Pat Pat Minola Thank you May please the court. My name is Devon Patinabha and I represent non-medical in this matter. The district court committed a number of errors and resolved this case on average judgment. I will address three of them in my argument today. First, the district court improperly construed the pivot-use limitation as a means-plus-function limitation. Second, the district court failed to apply the section 112 paragraph six equivalence test in determining literal infringement. And third, the district court improperly narrowed its construction when it applied it to the accused product. First, the district court improperly construed the pivot-use limitation as a means-plus-function limitation. Well, let me ask you something. Just a simple note doesn't pivot means mean a means for pivoting. You're under your case law. Tivit means there's a presumption that arises there. That isn't my question. My question to you is does pivot means mean anything other than a means for pivoting? Yes. What does it mean? It can know structure. I didn't ask you again about connoting structure. If it does, do you can add that pivot is what? And now? Yes, pivot is a noun
. Well, that's certainly rather poor English as well as if it's a noun because the word means is unnecessary. And why didn't they say a pivot? That's how you describe a pivot. And they could have said a pivot. But why didn't? They could have said, but but doesn't the fact that they didn't say a pivot, they just said pivot means suggests it's not intended as a noun. I think if you look at the entire record, the fact that he actually intended it to be a noun, they told the patent office that it was a structural limitation. And the way they put it in, even though they use the word means, I think given that the pivot can know structure, it would be about any presumption to apply what section one was. What structure does the word pivot can know? The structure, the word pivot can know is two structures that rotate relative to each other. So it would be a simple hinge would be a pivot. And a post to which two things were attached and swung around would be a pivot. That would have a pivot. Yes. Now, following up on Judge Friedman's comment, I looked at every use of the word pivot in the specification. It was never used once as a noun. Every other time it was used as a verb. Actually, there is one use of the word pivot as a noun, which is an original claim five. The word pivot is used and it says pivot means in later on in that claim, you reverse do it as a noun. But even though the patent, when you say a original claim five, that's not in the patent anymore
. I don't know how what done with that claim issue that is not it did issue. I just can't remember which claim issue that is. But in terms of the specification itself, pivot is used in specification to describe the function. But under your case law, that doesn't prevent the word as it's used in the claim, especially because the claim language provides both a location and extent of that structure to be construed as a non-1, 12, 6 limitation. What seems to be happening here is an unintended unintentional and unnecessary delicacy of instruction. The real problem is it not is whether or not whether there's equivalence of the structure and the specification. But whether there's equivalence of the pivoting function, isn't that the reason why you're so concerned that there was a mistake in calling it means plus function? It's equivalence of. And why should that make a difference on the record? That's really what I'm leading up to. It should come out the same way. Should it not in terms of whether there is or is not infringement under some equivalency of something, whether it's equivalency of the structure and the specification, or whether it's equivalency of the usage pivot, viewing it as a structural term rather than as a noun or an adjective or whatever it is in congruence for means? Yes, Your Honor. And there's a two-part answer to that question. First, there is no debate that the infringing device functions, forms of function of pivoting. There is the district court never addressed the question of equivalency at all. So while there is evidence in the record to suggest that the structure of the infringing device would be an equivalent under paragraph under section 112 paragraph 6, that's an issue the district court never addressed. Well, the district court said there were so many differences that there can't be equivalence. That would be there's at least a fact issue after that, Your Honor, because there is evidence, there's detailed expert reports in the record that show that it would be an equivalent one of skill in the art and that would not be a pro, that would not be a decision that the district court is a factual decision that the district court should not make on some judgment. You are talking now about the specific function of whether or not there is in fact that kind of motion between the two parts
. I'm sorry, actually the specific motion is not an issue at all. They're debating that it actually impivots where the issue is if it doesn't pivot if there's no motion it can't pivot. No, I think they agree that I think both parties agree that it pivots where the issue for equivalence is in the district court, for this case the judge as part of the pivoting structure can strew the claim to require a three-part spring. And the question for infringement really is is that three-part spring equivalent under section 12, section 112 paragraph 6, to the spring they use in their device. But the the finger clip in the accused device doesn't pivot, it doesn't move around in access. So how is there a pivot? The finger clip in this device has a purple housing on top and that actually pivots with respect to the lower housing. And so what is the housing that you're talking about? Is it the dust cap along the top or are you talking about the the actually finger pad and the top of the finger pad that contains the LED? What you're calling the dust cap would be the one housing that contains the LEDs and then the second housing would be the housing that has the battery. Which we're talking about the finger clip where the finger goes now, right? Yeah, where the finger goes there is an LED in top and there's a finger pad at the bottom, right? And the LED extends from the lower housing but the second the other second housing is actually though what you're calling the LED was in the upper housing. It is contained within the upper housing but it's not physically attached to the upper housing which is what the district court of addition to the district court found no literally infringement because they actually looked at the physical attachment. They they're required that that LED structure that you're talking about attached to the cap the dust as you're calling it the dust cap but it's the first housing the dust cap contains the LED structure and the second housing is where it had the top of the finger pad. No this isn't what I'm calling the housing it's what you're calling the housing right the dust cap. The dust cap is what? You call that the housing right? Yes, why by the way is that the housing I the housing I would have thought was the thing that encased the finger not the dust cap. And that actually does contact the finger it's what is moved off it's what pivoted. I understand how it may contact the finger but it's so out of context with the patents use of the term patent that I that I'm trying to understand why you would identify that is the housing rather than the part that actually contacts the finger. In normal operation that dust what you're calling the dust cap does perhaps that the edge touch the finger but the part that is in contact with the finger having some relevance to taking the reading from the the the blood is not the dust cap and therefore why would you call the housing the dust cap? It contains that portion of the circuitry that's used to contain it it happens to be under it but what it's not contained in it it's within the volume that's defined by a dust cap and that would be the ordinary meaning of contains the day. Why why wouldn't you just call the housing that the finger pad and the LED containing upper portion that contacts the finger? That that is all part of one that extends from the lower housing but you think it's all it's all without the cap that device is not an operating and it's with the cap that device I spend more time trying to figure out why you did this and anything else in the whole case and I still can't figure it out you're not making it clear to me. The device has to have two housings yes and I the housings as described in the patent and in every way illustrated are the finger clips upper and lower parts in this case you're saying it's a dust cap not anything that to do with the finger clip and so I'm very confused by that
. It does have something to do with the finger clip in that it is part of what is what helps hold the finger in place. It's what you push your finger through and it it's the entire structure which is there and just as in the patent the LEDs are contained within the upper housing to be able to do the reading. In addition to the patent office in addition to telling the patent office that pivoted structure your case law and coal as well as a wooden barcode would. Can I mention one other thing you know these days we have these fancy computers I asked my clerk to run us a search on your patent there's no claim in it with the word pivot alone. He just did a patent sir he just did a word search on your patent. It was in the original it's not in the issued patent unless computers don't work. No I'm sure they do. You're after seeing all the times of Well take a little more time now we'll take it out of the next case if that makes sense to you because the your issues are very similar and I gather in both cases. Yes they are. Okay then do continue for your rebuttal period and we'll add your rebuttal on now. With regard to your case I've the only other point I want to make on the case law is this case is very similar your decision and coal and it's also very similar in terms of facts as to your explanation in unit dynamics as to why this pivot struck pivot means she becomes true as a structure as not a responsible plane as a normal not a responsible plane. The district court with regard to the second error really did not ever do a one-to-one-to-one paragraph analysis which by itself should be a reason to send this case back. They didn't do that with respect to pivot means where they simply looked at the identical structure of the springs and then the judge in specifically carved out all the spring structures that existed prior to 1995 and said because they were prior to 1995 did not think they were a public whereas under Trumana this case this court is specifically said for purposes of section one-to-one paragraph six those are this spring structures that we have to look at to determine that it opens and that was never done in the district court. The third the third error of the district court made really is that it also narrow the construction what when it was applying them to when it was applying to the accused device and what the first example of that is in the limitation that the first and second housings are an electrical communication and it's this issue that we discussed about containment. Their district court added the two additional limitations that there'd be physical attachment to the to the housing which is nowhere in the construction it's not in the claims and it's not required by the specification and for that reason the district court's analysis is improper. Second it also required that the LED are pivot with the housing and that's also not required by the claims or the specification and for that reason the district court's analysis is improper. Okay thank you Good morning
. Good morning. May I please the court by Paul Stevman of the law firm Kirkland-Maweson-I here on behalf of both of the athletes. Okay. The only we believe that the issues in this case are really relatively simple on our spelled out well in the groups. The only point that I wanted to make affirmatively this morning is to draw the court's attention to two statements in the appellate briefs. One at the blue brief at page 29 line two. This is where a known and really reveals what it's trying to do. According to known in the limitation, pivot means which allows the housings to pivot must be interpreted this is what their brief said. Now we're at page 22. Page 29 on line two. Got it. They want pivot means to which allows the housings to pivot to be interpreted to incorporate any structure that performs a pivoting function. Of course that's not any arcane kind of hidden motive. That's the reason for the argument about why this isn't a means proper means plus function. Well I think it's not hidden or arcane but it is directly contrary to the statutory mandate of section 112 paragraph 6. That section says. Again that's exactly why they're saying that district court heard in applying 1126 and I think it would be interesting as long as we're here to understand not only your position as to why the structures the structure and specification are not equivocal but also why equivalency doesn't apply on the theory in that sentence on page 29
. Well I think that I think that's what I was trying to explain and that is that the statute does not allow you to claim in purely functional terms. Statute does not allow you to claim any structure which performs a function of pivoting. If you put your claim in that form then you are required under 1126 to refer to the specification so that was the point. The issue is whether it was properly interpreted as being in that form. It was properly interpreted as being in that form. Why? Because the word pivot is actually in the claim so you don't really need means. It's our convoluted Clark case and others. I'll say that when the structure is in the claim then it's not means plus function even though you use the word means. The court's decisions that find that claim using the word means that is outside 1126 always find sufficient structure for completely performing the claimed function. I don't think completely is in our cases. sufficient structure for performing the claimed function. You're on my recollection is there's at least one claim one of your decisions that says completely performed but in any event here the only word is pivot that does not tell you how to perform all three of the claimed functions. It does not tell you how to think pivots which is very different in the accused device which only pivots in one direction than it is in the claim device which is pivot into it. It does not tell you how to grip a finger. The word pivot by itself does not tell you or tell you enough structure to grip a finger and third it does not tell you interconnecting which is also required by the claims. There are three things the pivot means must do. It must interconnect
. It must allow the two housings to pivot and must grip a finger. The word pivot by itself in no way can know sufficient structure to do that whether it completely performs it or whether it's just sufficient. The claim has a gripping means why does the pivot means have to perform the gripping function. The claim says finger gripping means comprised of a pivot means so the words finger gripping means don't tell you anything. Correct. So it's not limited. Right. We did not advance an argument based on the words finger gripping means we only advanced our argument based on the pivot means structure. The pivot means has to release a grip of finger right. That's correct. That's what the line the claim says. That's correct. In the word pivot does not it does this one release a grip of finger. This one in the accused device. Yes. That was not an issue below your honor but arguably yes the pulsox do would release a grip of finger. Then why is why are you raising that as a quote as an issue
. The issue is not what is located in the accused device. The issue is whether the word pivot by itself is sufficient structure to perform all of the recited functions recited in the claim. The equivalent claim instruction we're not on the fridge. The equivalency under 1126 is equivalence of the accused structure and the structure in the specification. Okay. So but you are saying we don't look at the accused structure at all in interpreting 1126. No. Well once we get to that portion of 1126 we would look at the accused structure and the accused structure as it turns out is the same structure that the patentee said when they were trying to get around the gold-burger reference it contained a completely different kind of spring element. That is what they said. So a spring element cannot be equivalent if it is completely different than the invention. The reason they did that. The reason they did that is that under means plus function the spring, the w shaped connected spring that's shown in the patent figures and it'scribed at length in the specification. That is the only structure that performs the recited functions. It performs the interconnecting, it performs the pivoting and performs the finger ripping at least in part. It's a necessary structure to perform all of those functions. So once we look at the specification we find that spring. That is the structure to which we must compare the accused device
. But during prosecution they had already said that the spring and hinge structure had a completely different kind of spring mechanism. That's what they said. So the district court didn't have to then go through and say these are the same function, these are the same ways, these are the same result. Under Ballard which the district court correctly enunciated in its opinion. If the patentee disclang or said this is not equivalent in its specification or in the prosecution history then it is simply not equivalent for purposes of 1.6 and it's not equivalent for purposes of the document. So the district court was done. So you really don't care whether 1.6 applies or not? Your honor I believe the result would be the same whether it does apply or not. We urged the district court to follow Phillips and correctly apply the claims before applying into the accused device and I think 1.12.6 does apply. But even if the court found that it didn't apply we would say that they could say it was a completely different kind of structure. Are there any other distinctions you want to point out to us? The other the other thing I wanted to say was that they make the same kind of argument about program means at break brief page 27. Once again they took this time what they admit is a mean plus function limitation. But they urged the court to find that the correct construction is any algorithm that senses anything, any algorithm that senses. And this court was very very clear in what in WMS gaming that a means plus function limitation that relates to a computer program running on a microprocessor must be limited to the algorithm shown in the specification
. Here that algorithm is shown with figure 18. It's a very specific algorithm. There is no evidence in the record from which this court or the district court could have even evaluated the equivalence and under rule 56 of the Federal Reserve Civil Procedure the burden was unknown and to come forward with that evidence if they had it in order to prove the equivalence. Having failed to do so there simply can be no equivalence. You're saying they presented no evidence of equivalence or that you don't think it was the right kind of evidence. There was no evidence on the issue of program means equivalence. There couldn't be because they didn't put any evidence in of the structure in the accused device. There's no evidence. Where in the claim? What clause of the claim are you fighting to? I'm in five two. I'm in five two three patents. The last clause of the claim. The electronic means being carried by the crypt means? No, I'm sorry. I'm in five two three patents. The claim one. The last clause of the claim which is program means operating connected to the pulse oxymeter means and display means for sensing the presence of a finger and switching apparatus from a low-power state to a normal power state. In WMS gaming the court made clear that the thing is the program means. You're saying that is a different program? I'm saying there's no evidence of the program. In fact when the accused device had that bounty evidence and put it forward what it would have shown is that it's actually a mechanical switch that sends a hardware wake-up call to a microchip. It's not a program at all. So had the district court gotten the evidence it would have found no proof once anyway because it's not a computer program. It's not a program what is it? It's a hardware switch you're on. This is the accused device when the cover opens. It's not computer operated at all. It's not computer operated. It is computer operated. It's just not algorithm operated. There is a microchip in here but the microchip starts the computer program once this switch has been activated and a small voltage is applied to the interrupt pin. So it says operatively connected. Operating with connected is not it is not an issue. It's the force sensing. It's the means force sensing. Program means force sensing. This is very strange. The whole thing is computer operated and you say it's not programmed
. In fact when the accused device had that bounty evidence and put it forward what it would have shown is that it's actually a mechanical switch that sends a hardware wake-up call to a microchip. It's not a program at all. So had the district court gotten the evidence it would have found no proof once anyway because it's not a computer program. It's not a program what is it? It's a hardware switch you're on. This is the accused device when the cover opens. It's not computer operated at all. It's not computer operated. It is computer operated. It's just not algorithm operated. There is a microchip in here but the microchip starts the computer program once this switch has been activated and a small voltage is applied to the interrupt pin. So it says operatively connected. Operating with connected is not it is not an issue. It's the force sensing. It's the means force sensing. Program means force sensing. This is very strange. The whole thing is computer operated and you say it's not programmed. It is programmed in order to be blood and pulse measurements. It says program means operatively connected to the examiner means. Correct. There's no doubt that there is a program means in here operatively connected to the other elements. It's just not a program means for sensing the presence of a finger and switching the apparatus from a low power state to a low power state. Is that device you're holding in your right hand? Where does the finger go? The finger goes here here on and this has been disconnected. That's the upper housing, right? This is the upper housing. According to the upper housing has nothing in it. Or it narrowly, is that right? Well there is plastic. There's a plastic piece that I will move to get this off but there's a plastic rubber coating that rests on the finger so that it's comfortable. But it's just a shell, but this is just a shell. That's right. And if one of these in the record, this was exhibit one. If full one of these was attached to exhibit one to our papers, so both the district work and this work can examine and length of it which was to do. So the LED containing upper arm there does not contact finger. It does not contact the finger. This is the first housing
. It is programmed in order to be blood and pulse measurements. It says program means operatively connected to the examiner means. Correct. There's no doubt that there is a program means in here operatively connected to the other elements. It's just not a program means for sensing the presence of a finger and switching the apparatus from a low power state to a low power state. Is that device you're holding in your right hand? Where does the finger go? The finger goes here here on and this has been disconnected. That's the upper housing, right? This is the upper housing. According to the upper housing has nothing in it. Or it narrowly, is that right? Well there is plastic. There's a plastic piece that I will move to get this off but there's a plastic rubber coating that rests on the finger so that it's comfortable. But it's just a shell, but this is just a shell. That's right. And if one of these in the record, this was exhibit one. If full one of these was attached to exhibit one to our papers, so both the district work and this work can examine and length of it which was to do. So the LED containing upper arm there does not contact finger. It does not contact the finger. This is the first housing. This is a housing with all the electrical components in it. This thing which they insist on calling housing does not contain any electric components. It contains nothing other than a soft plastic thing to track the strings. The only function is to keep the light out from the LED so that you can get an accurate reading. And as I said, you know, when this is sold these two are connected and taken apart so that it's easy to see what's inside here. So the pivot on this device does not move the LED containing upper arm? That's correct. And the district court noted that specifically. The district court analyzed their argument that the LED arm was the second housing. And so that can't be the second housing. Even if I were willing to carve that off and call that the second housing, the claim would fail against this device because the second housing must pivot. Does that up-or-on move? This arm doesn't move. Does not move. Whereas under the patented device the top housing moves down on the pivot. That's correct. To make contact with the finger. As I said, this is exhibit one. I'm happy to hand it up to the court
. This is a housing with all the electrical components in it. This thing which they insist on calling housing does not contain any electric components. It contains nothing other than a soft plastic thing to track the strings. The only function is to keep the light out from the LED so that you can get an accurate reading. And as I said, you know, when this is sold these two are connected and taken apart so that it's easy to see what's inside here. So the pivot on this device does not move the LED containing upper arm? That's correct. And the district court noted that specifically. The district court analyzed their argument that the LED arm was the second housing. And so that can't be the second housing. Even if I were willing to carve that off and call that the second housing, the claim would fail against this device because the second housing must pivot. Does that up-or-on move? This arm doesn't move. Does not move. Whereas under the patented device the top housing moves down on the pivot. That's correct. To make contact with the finger. As I said, this is exhibit one. I'm happy to hand it up to the court. Would you please? It's not theta here. Well, in this case, I would like it. How would you like me to do that? You give it to me. When you're finished with your argument, give it to the bailist, please. Would you want to take a look at it right now? When he's finished, that's just fine. I will do so. I was... I have no other points to make in the balance of my time. Okay. Thank you, Mr. Stedman. Okay. Mr. Pad, that's fine. I'm sorry, now I don't want to follow the course direction
. Would you please? It's not theta here. Well, in this case, I would like it. How would you like me to do that? You give it to me. When you're finished with your argument, give it to the bailist, please. Would you want to take a look at it right now? When he's finished, that's just fine. I will do so. I was... I have no other points to make in the balance of my time. Okay. Thank you, Mr. Stedman. Okay. Mr. Pad, that's fine. I'm sorry, now I don't want to follow the course direction. No, please. By the way, now I understand why you call it a housing. As about that. You don't have to take any time on it and I understand your argument better now. And there's actually a finger pattern there. Yep, I got it. With respect to... With respect to his argument on the functions, we don't actually... We agree with him on the interconnect. We believe there is interconnect. And I don't think that's been in dispute and that there's pivot. On the release of the gripping, we think that's part that I don't think the lower part that that's one of the functions of pivot means. And we don't think that actually impacts the decision on whether pivot means should be construed under one plus that you're not
. No, please. By the way, now I understand why you call it a housing. As about that. You don't have to take any time on it and I understand your argument better now. And there's actually a finger pattern there. Yep, I got it. With respect to... With respect to his argument on the functions, we don't actually... We agree with him on the interconnect. We believe there is interconnect. And I don't think that's been in dispute and that there's pivot. On the release of the gripping, we think that's part that I don't think the lower part that that's one of the functions of pivot means. And we don't think that actually impacts the decision on whether pivot means should be construed under one plus that you're not. Analysis there is, I think, only going to this prosecution history point. And let me make that point very clear. The original claims that were filed in this case claim for how to pivot means function. And that pivot means function is the language that ends up in issue claim one of the O52 pattern. Claim 32 was a separate claim that was originally filed that had a very specific description of a pivot means that included this three-part sprint structure. During prosecution and very consistently throughout the pattern T distinguished the specific three-part sprint structure that was in the claim specific claim language to it from the prior art which is the Goldberg reference. But when it came to the patent office rejecting claim for, the original claim for based on the same Goldberg reference, the patty did not at any time distinguish the pivot means that was claimed in claim for from the Goldberg reference. But the issue is the spring structure at that stage. And I make a strong argument of the stuff as to equivalency of their spring structure. As to the spring structure, if it was all as the claim for it, that's part of the reason when original claim for it would be improper and limited to just the spring structure, especially given the disclosure and the patent. And nonetheless, the original claim for was never distinguished on those grounds. In fact, you told the patent office implicitly that the language that is that in front of you in the original claim for is language that would cover the structure of Goldberg. It could be never distinguished that language from Goldberg. And as to the WMS Gaming Point, and this is a minor point, the section of the E-Post with WMS Gaming really has to do with claim construction. It's not in front of you today to know what's challenging the construction of the program. Well, didn't you decline mechanical switches when you were distinguishing yourself from overall Connor? Yes, we did distinguish mechanical switches, but what we didn't distinguish, if you look at the language, what we didn't distinguish was use of mechanical sensors with a computer program. When you look at that language, the language they cite against no Connor, well, Connor is simply a physical switch and it's just an on-off
. Analysis there is, I think, only going to this prosecution history point. And let me make that point very clear. The original claims that were filed in this case claim for how to pivot means function. And that pivot means function is the language that ends up in issue claim one of the O52 pattern. Claim 32 was a separate claim that was originally filed that had a very specific description of a pivot means that included this three-part sprint structure. During prosecution and very consistently throughout the pattern T distinguished the specific three-part sprint structure that was in the claim specific claim language to it from the prior art which is the Goldberg reference. But when it came to the patent office rejecting claim for, the original claim for based on the same Goldberg reference, the patty did not at any time distinguish the pivot means that was claimed in claim for from the Goldberg reference. But the issue is the spring structure at that stage. And I make a strong argument of the stuff as to equivalency of their spring structure. As to the spring structure, if it was all as the claim for it, that's part of the reason when original claim for it would be improper and limited to just the spring structure, especially given the disclosure and the patent. And nonetheless, the original claim for was never distinguished on those grounds. In fact, you told the patent office implicitly that the language that is that in front of you in the original claim for is language that would cover the structure of Goldberg. It could be never distinguished that language from Goldberg. And as to the WMS Gaming Point, and this is a minor point, the section of the E-Post with WMS Gaming really has to do with claim construction. It's not in front of you today to know what's challenging the construction of the program. Well, didn't you decline mechanical switches when you were distinguishing yourself from overall Connor? Yes, we did distinguish mechanical switches, but what we didn't distinguish, if you look at the language, what we didn't distinguish was use of mechanical sensors with a computer program. When you look at that language, the language they cite against no Connor, well, Connor is simply a physical switch and it's just an on-off. Mr. Stedman says they have no program. It's just a mechanical switch. And you're honored if you look at Mr. Terry Euchie's... A hardware switch, but that's... And they don't dispute. There is a computer program. There's a little bit of... The record is not real clear on what the scope of the computer program. Mr
. Mr. Stedman says they have no program. It's just a mechanical switch. And you're honored if you look at Mr. Terry Euchie's... A hardware switch, but that's... And they don't dispute. There is a computer program. There's a little bit of... The record is not real clear on what the scope of the computer program. Mr. Terry Euchie initially said there is no computer program to detect the absence of a finger. In the supplemental, he then suggests there is a computer program that detects the absence of a finger. And what we wanted was a WU-56 app deposition of Mr. Terry Euchie because that is the only fact or the only set of facts that they rely on for the summary judgment. We haven't had a chance to press Mr. Terry Euchie and cross him on his declaration. So I can't give you the details of how their computer program works because we didn't get a chance to deposit before the summary judgment order came out. And so that's all I can say as to the computer program. I know it's there. When we tested it, put a declaration in just by observation and Mr. Eric put that in, he thought that the computer program did detect it. The presence of a finger. He also thought that the computer program detected the absence of a finger. But Mr. Terry Euchie and his declaration seems to suggest we're right that he does detect the absence of a finger. He was silent after the paragraph and the presence of a finger. It's unclear what he's exactly saying
. Terry Euchie initially said there is no computer program to detect the absence of a finger. In the supplemental, he then suggests there is a computer program that detects the absence of a finger. And what we wanted was a WU-56 app deposition of Mr. Terry Euchie because that is the only fact or the only set of facts that they rely on for the summary judgment. We haven't had a chance to press Mr. Terry Euchie and cross him on his declaration. So I can't give you the details of how their computer program works because we didn't get a chance to deposit before the summary judgment order came out. And so that's all I can say as to the computer program. I know it's there. When we tested it, put a declaration in just by observation and Mr. Eric put that in, he thought that the computer program did detect it. The presence of a finger. He also thought that the computer program detected the absence of a finger. But Mr. Terry Euchie and his declaration seems to suggest we're right that he does detect the absence of a finger. He was silent after the paragraph and the presence of a finger. It's unclear what he's exactly saying. But it goes to the main issue that we can't tell that's why we asked for the WU-56 app deposition and we took the success of discovering including deposition of Mr. Terry Euchie and putting it in an expert report based on what we find from Mr. Terry Euchie and putting it in the opportunity. Okay. I think we heard the arguments on the comments. Hand that to the clerk there.
Known in medical against Connicka Minola photo Mr. help me with the pronunciation Pat Pat Minola Thank you May please the court. My name is Devon Patinabha and I represent non-medical in this matter. The district court committed a number of errors and resolved this case on average judgment. I will address three of them in my argument today. First, the district court improperly construed the pivot-use limitation as a means-plus-function limitation. Second, the district court failed to apply the section 112 paragraph six equivalence test in determining literal infringement. And third, the district court improperly narrowed its construction when it applied it to the accused product. First, the district court improperly construed the pivot-use limitation as a means-plus-function limitation. Well, let me ask you something. Just a simple note doesn't pivot means mean a means for pivoting. You're under your case law. Tivit means there's a presumption that arises there. That isn't my question. My question to you is does pivot means mean anything other than a means for pivoting? Yes. What does it mean? It can know structure. I didn't ask you again about connoting structure. If it does, do you can add that pivot is what? And now? Yes, pivot is a noun. Well, that's certainly rather poor English as well as if it's a noun because the word means is unnecessary. And why didn't they say a pivot? That's how you describe a pivot. And they could have said a pivot. But why didn't? They could have said, but but doesn't the fact that they didn't say a pivot, they just said pivot means suggests it's not intended as a noun. I think if you look at the entire record, the fact that he actually intended it to be a noun, they told the patent office that it was a structural limitation. And the way they put it in, even though they use the word means, I think given that the pivot can know structure, it would be about any presumption to apply what section one was. What structure does the word pivot can know? The structure, the word pivot can know is two structures that rotate relative to each other. So it would be a simple hinge would be a pivot. And a post to which two things were attached and swung around would be a pivot. That would have a pivot. Yes. Now, following up on Judge Friedman's comment, I looked at every use of the word pivot in the specification. It was never used once as a noun. Every other time it was used as a verb. Actually, there is one use of the word pivot as a noun, which is an original claim five. The word pivot is used and it says pivot means in later on in that claim, you reverse do it as a noun. But even though the patent, when you say a original claim five, that's not in the patent anymore. I don't know how what done with that claim issue that is not it did issue. I just can't remember which claim issue that is. But in terms of the specification itself, pivot is used in specification to describe the function. But under your case law, that doesn't prevent the word as it's used in the claim, especially because the claim language provides both a location and extent of that structure to be construed as a non-1, 12, 6 limitation. What seems to be happening here is an unintended unintentional and unnecessary delicacy of instruction. The real problem is it not is whether or not whether there's equivalence of the structure and the specification. But whether there's equivalence of the pivoting function, isn't that the reason why you're so concerned that there was a mistake in calling it means plus function? It's equivalence of. And why should that make a difference on the record? That's really what I'm leading up to. It should come out the same way. Should it not in terms of whether there is or is not infringement under some equivalency of something, whether it's equivalency of the structure and the specification, or whether it's equivalency of the usage pivot, viewing it as a structural term rather than as a noun or an adjective or whatever it is in congruence for means? Yes, Your Honor. And there's a two-part answer to that question. First, there is no debate that the infringing device functions, forms of function of pivoting. There is the district court never addressed the question of equivalency at all. So while there is evidence in the record to suggest that the structure of the infringing device would be an equivalent under paragraph under section 112 paragraph 6, that's an issue the district court never addressed. Well, the district court said there were so many differences that there can't be equivalence. That would be there's at least a fact issue after that, Your Honor, because there is evidence, there's detailed expert reports in the record that show that it would be an equivalent one of skill in the art and that would not be a pro, that would not be a decision that the district court is a factual decision that the district court should not make on some judgment. You are talking now about the specific function of whether or not there is in fact that kind of motion between the two parts. I'm sorry, actually the specific motion is not an issue at all. They're debating that it actually impivots where the issue is if it doesn't pivot if there's no motion it can't pivot. No, I think they agree that I think both parties agree that it pivots where the issue for equivalence is in the district court, for this case the judge as part of the pivoting structure can strew the claim to require a three-part spring. And the question for infringement really is is that three-part spring equivalent under section 12, section 112 paragraph 6, to the spring they use in their device. But the the finger clip in the accused device doesn't pivot, it doesn't move around in access. So how is there a pivot? The finger clip in this device has a purple housing on top and that actually pivots with respect to the lower housing. And so what is the housing that you're talking about? Is it the dust cap along the top or are you talking about the the actually finger pad and the top of the finger pad that contains the LED? What you're calling the dust cap would be the one housing that contains the LEDs and then the second housing would be the housing that has the battery. Which we're talking about the finger clip where the finger goes now, right? Yeah, where the finger goes there is an LED in top and there's a finger pad at the bottom, right? And the LED extends from the lower housing but the second the other second housing is actually though what you're calling the LED was in the upper housing. It is contained within the upper housing but it's not physically attached to the upper housing which is what the district court of addition to the district court found no literally infringement because they actually looked at the physical attachment. They they're required that that LED structure that you're talking about attached to the cap the dust as you're calling it the dust cap but it's the first housing the dust cap contains the LED structure and the second housing is where it had the top of the finger pad. No this isn't what I'm calling the housing it's what you're calling the housing right the dust cap. The dust cap is what? You call that the housing right? Yes, why by the way is that the housing I the housing I would have thought was the thing that encased the finger not the dust cap. And that actually does contact the finger it's what is moved off it's what pivoted. I understand how it may contact the finger but it's so out of context with the patents use of the term patent that I that I'm trying to understand why you would identify that is the housing rather than the part that actually contacts the finger. In normal operation that dust what you're calling the dust cap does perhaps that the edge touch the finger but the part that is in contact with the finger having some relevance to taking the reading from the the the blood is not the dust cap and therefore why would you call the housing the dust cap? It contains that portion of the circuitry that's used to contain it it happens to be under it but what it's not contained in it it's within the volume that's defined by a dust cap and that would be the ordinary meaning of contains the day. Why why wouldn't you just call the housing that the finger pad and the LED containing upper portion that contacts the finger? That that is all part of one that extends from the lower housing but you think it's all it's all without the cap that device is not an operating and it's with the cap that device I spend more time trying to figure out why you did this and anything else in the whole case and I still can't figure it out you're not making it clear to me. The device has to have two housings yes and I the housings as described in the patent and in every way illustrated are the finger clips upper and lower parts in this case you're saying it's a dust cap not anything that to do with the finger clip and so I'm very confused by that. It does have something to do with the finger clip in that it is part of what is what helps hold the finger in place. It's what you push your finger through and it it's the entire structure which is there and just as in the patent the LEDs are contained within the upper housing to be able to do the reading. In addition to the patent office in addition to telling the patent office that pivoted structure your case law and coal as well as a wooden barcode would. Can I mention one other thing you know these days we have these fancy computers I asked my clerk to run us a search on your patent there's no claim in it with the word pivot alone. He just did a patent sir he just did a word search on your patent. It was in the original it's not in the issued patent unless computers don't work. No I'm sure they do. You're after seeing all the times of Well take a little more time now we'll take it out of the next case if that makes sense to you because the your issues are very similar and I gather in both cases. Yes they are. Okay then do continue for your rebuttal period and we'll add your rebuttal on now. With regard to your case I've the only other point I want to make on the case law is this case is very similar your decision and coal and it's also very similar in terms of facts as to your explanation in unit dynamics as to why this pivot struck pivot means she becomes true as a structure as not a responsible plane as a normal not a responsible plane. The district court with regard to the second error really did not ever do a one-to-one-to-one paragraph analysis which by itself should be a reason to send this case back. They didn't do that with respect to pivot means where they simply looked at the identical structure of the springs and then the judge in specifically carved out all the spring structures that existed prior to 1995 and said because they were prior to 1995 did not think they were a public whereas under Trumana this case this court is specifically said for purposes of section one-to-one paragraph six those are this spring structures that we have to look at to determine that it opens and that was never done in the district court. The third the third error of the district court made really is that it also narrow the construction what when it was applying them to when it was applying to the accused device and what the first example of that is in the limitation that the first and second housings are an electrical communication and it's this issue that we discussed about containment. Their district court added the two additional limitations that there'd be physical attachment to the to the housing which is nowhere in the construction it's not in the claims and it's not required by the specification and for that reason the district court's analysis is improper. Second it also required that the LED are pivot with the housing and that's also not required by the claims or the specification and for that reason the district court's analysis is improper. Okay thank you Good morning. Good morning. May I please the court by Paul Stevman of the law firm Kirkland-Maweson-I here on behalf of both of the athletes. Okay. The only we believe that the issues in this case are really relatively simple on our spelled out well in the groups. The only point that I wanted to make affirmatively this morning is to draw the court's attention to two statements in the appellate briefs. One at the blue brief at page 29 line two. This is where a known and really reveals what it's trying to do. According to known in the limitation, pivot means which allows the housings to pivot must be interpreted this is what their brief said. Now we're at page 22. Page 29 on line two. Got it. They want pivot means to which allows the housings to pivot to be interpreted to incorporate any structure that performs a pivoting function. Of course that's not any arcane kind of hidden motive. That's the reason for the argument about why this isn't a means proper means plus function. Well I think it's not hidden or arcane but it is directly contrary to the statutory mandate of section 112 paragraph 6. That section says. Again that's exactly why they're saying that district court heard in applying 1126 and I think it would be interesting as long as we're here to understand not only your position as to why the structures the structure and specification are not equivocal but also why equivalency doesn't apply on the theory in that sentence on page 29. Well I think that I think that's what I was trying to explain and that is that the statute does not allow you to claim in purely functional terms. Statute does not allow you to claim any structure which performs a function of pivoting. If you put your claim in that form then you are required under 1126 to refer to the specification so that was the point. The issue is whether it was properly interpreted as being in that form. It was properly interpreted as being in that form. Why? Because the word pivot is actually in the claim so you don't really need means. It's our convoluted Clark case and others. I'll say that when the structure is in the claim then it's not means plus function even though you use the word means. The court's decisions that find that claim using the word means that is outside 1126 always find sufficient structure for completely performing the claimed function. I don't think completely is in our cases. sufficient structure for performing the claimed function. You're on my recollection is there's at least one claim one of your decisions that says completely performed but in any event here the only word is pivot that does not tell you how to perform all three of the claimed functions. It does not tell you how to think pivots which is very different in the accused device which only pivots in one direction than it is in the claim device which is pivot into it. It does not tell you how to grip a finger. The word pivot by itself does not tell you or tell you enough structure to grip a finger and third it does not tell you interconnecting which is also required by the claims. There are three things the pivot means must do. It must interconnect. It must allow the two housings to pivot and must grip a finger. The word pivot by itself in no way can know sufficient structure to do that whether it completely performs it or whether it's just sufficient. The claim has a gripping means why does the pivot means have to perform the gripping function. The claim says finger gripping means comprised of a pivot means so the words finger gripping means don't tell you anything. Correct. So it's not limited. Right. We did not advance an argument based on the words finger gripping means we only advanced our argument based on the pivot means structure. The pivot means has to release a grip of finger right. That's correct. That's what the line the claim says. That's correct. In the word pivot does not it does this one release a grip of finger. This one in the accused device. Yes. That was not an issue below your honor but arguably yes the pulsox do would release a grip of finger. Then why is why are you raising that as a quote as an issue. The issue is not what is located in the accused device. The issue is whether the word pivot by itself is sufficient structure to perform all of the recited functions recited in the claim. The equivalent claim instruction we're not on the fridge. The equivalency under 1126 is equivalence of the accused structure and the structure in the specification. Okay. So but you are saying we don't look at the accused structure at all in interpreting 1126. No. Well once we get to that portion of 1126 we would look at the accused structure and the accused structure as it turns out is the same structure that the patentee said when they were trying to get around the gold-burger reference it contained a completely different kind of spring element. That is what they said. So a spring element cannot be equivalent if it is completely different than the invention. The reason they did that. The reason they did that is that under means plus function the spring, the w shaped connected spring that's shown in the patent figures and it'scribed at length in the specification. That is the only structure that performs the recited functions. It performs the interconnecting, it performs the pivoting and performs the finger ripping at least in part. It's a necessary structure to perform all of those functions. So once we look at the specification we find that spring. That is the structure to which we must compare the accused device. But during prosecution they had already said that the spring and hinge structure had a completely different kind of spring mechanism. That's what they said. So the district court didn't have to then go through and say these are the same function, these are the same ways, these are the same result. Under Ballard which the district court correctly enunciated in its opinion. If the patentee disclang or said this is not equivalent in its specification or in the prosecution history then it is simply not equivalent for purposes of 1.6 and it's not equivalent for purposes of the document. So the district court was done. So you really don't care whether 1.6 applies or not? Your honor I believe the result would be the same whether it does apply or not. We urged the district court to follow Phillips and correctly apply the claims before applying into the accused device and I think 1.12.6 does apply. But even if the court found that it didn't apply we would say that they could say it was a completely different kind of structure. Are there any other distinctions you want to point out to us? The other the other thing I wanted to say was that they make the same kind of argument about program means at break brief page 27. Once again they took this time what they admit is a mean plus function limitation. But they urged the court to find that the correct construction is any algorithm that senses anything, any algorithm that senses. And this court was very very clear in what in WMS gaming that a means plus function limitation that relates to a computer program running on a microprocessor must be limited to the algorithm shown in the specification. Here that algorithm is shown with figure 18. It's a very specific algorithm. There is no evidence in the record from which this court or the district court could have even evaluated the equivalence and under rule 56 of the Federal Reserve Civil Procedure the burden was unknown and to come forward with that evidence if they had it in order to prove the equivalence. Having failed to do so there simply can be no equivalence. You're saying they presented no evidence of equivalence or that you don't think it was the right kind of evidence. There was no evidence on the issue of program means equivalence. There couldn't be because they didn't put any evidence in of the structure in the accused device. There's no evidence. Where in the claim? What clause of the claim are you fighting to? I'm in five two. I'm in five two three patents. The last clause of the claim. The electronic means being carried by the crypt means? No, I'm sorry. I'm in five two three patents. The claim one. The last clause of the claim which is program means operating connected to the pulse oxymeter means and display means for sensing the presence of a finger and switching apparatus from a low-power state to a normal power state. In WMS gaming the court made clear that the thing is the program means. You're saying that is a different program? I'm saying there's no evidence of the program. In fact when the accused device had that bounty evidence and put it forward what it would have shown is that it's actually a mechanical switch that sends a hardware wake-up call to a microchip. It's not a program at all. So had the district court gotten the evidence it would have found no proof once anyway because it's not a computer program. It's not a program what is it? It's a hardware switch you're on. This is the accused device when the cover opens. It's not computer operated at all. It's not computer operated. It is computer operated. It's just not algorithm operated. There is a microchip in here but the microchip starts the computer program once this switch has been activated and a small voltage is applied to the interrupt pin. So it says operatively connected. Operating with connected is not it is not an issue. It's the force sensing. It's the means force sensing. Program means force sensing. This is very strange. The whole thing is computer operated and you say it's not programmed. It is programmed in order to be blood and pulse measurements. It says program means operatively connected to the examiner means. Correct. There's no doubt that there is a program means in here operatively connected to the other elements. It's just not a program means for sensing the presence of a finger and switching the apparatus from a low power state to a low power state. Is that device you're holding in your right hand? Where does the finger go? The finger goes here here on and this has been disconnected. That's the upper housing, right? This is the upper housing. According to the upper housing has nothing in it. Or it narrowly, is that right? Well there is plastic. There's a plastic piece that I will move to get this off but there's a plastic rubber coating that rests on the finger so that it's comfortable. But it's just a shell, but this is just a shell. That's right. And if one of these in the record, this was exhibit one. If full one of these was attached to exhibit one to our papers, so both the district work and this work can examine and length of it which was to do. So the LED containing upper arm there does not contact finger. It does not contact the finger. This is the first housing. This is a housing with all the electrical components in it. This thing which they insist on calling housing does not contain any electric components. It contains nothing other than a soft plastic thing to track the strings. The only function is to keep the light out from the LED so that you can get an accurate reading. And as I said, you know, when this is sold these two are connected and taken apart so that it's easy to see what's inside here. So the pivot on this device does not move the LED containing upper arm? That's correct. And the district court noted that specifically. The district court analyzed their argument that the LED arm was the second housing. And so that can't be the second housing. Even if I were willing to carve that off and call that the second housing, the claim would fail against this device because the second housing must pivot. Does that up-or-on move? This arm doesn't move. Does not move. Whereas under the patented device the top housing moves down on the pivot. That's correct. To make contact with the finger. As I said, this is exhibit one. I'm happy to hand it up to the court. Would you please? It's not theta here. Well, in this case, I would like it. How would you like me to do that? You give it to me. When you're finished with your argument, give it to the bailist, please. Would you want to take a look at it right now? When he's finished, that's just fine. I will do so. I was... I have no other points to make in the balance of my time. Okay. Thank you, Mr. Stedman. Okay. Mr. Pad, that's fine. I'm sorry, now I don't want to follow the course direction. No, please. By the way, now I understand why you call it a housing. As about that. You don't have to take any time on it and I understand your argument better now. And there's actually a finger pattern there. Yep, I got it. With respect to... With respect to his argument on the functions, we don't actually... We agree with him on the interconnect. We believe there is interconnect. And I don't think that's been in dispute and that there's pivot. On the release of the gripping, we think that's part that I don't think the lower part that that's one of the functions of pivot means. And we don't think that actually impacts the decision on whether pivot means should be construed under one plus that you're not. Analysis there is, I think, only going to this prosecution history point. And let me make that point very clear. The original claims that were filed in this case claim for how to pivot means function. And that pivot means function is the language that ends up in issue claim one of the O52 pattern. Claim 32 was a separate claim that was originally filed that had a very specific description of a pivot means that included this three-part sprint structure. During prosecution and very consistently throughout the pattern T distinguished the specific three-part sprint structure that was in the claim specific claim language to it from the prior art which is the Goldberg reference. But when it came to the patent office rejecting claim for, the original claim for based on the same Goldberg reference, the patty did not at any time distinguish the pivot means that was claimed in claim for from the Goldberg reference. But the issue is the spring structure at that stage. And I make a strong argument of the stuff as to equivalency of their spring structure. As to the spring structure, if it was all as the claim for it, that's part of the reason when original claim for it would be improper and limited to just the spring structure, especially given the disclosure and the patent. And nonetheless, the original claim for was never distinguished on those grounds. In fact, you told the patent office implicitly that the language that is that in front of you in the original claim for is language that would cover the structure of Goldberg. It could be never distinguished that language from Goldberg. And as to the WMS Gaming Point, and this is a minor point, the section of the E-Post with WMS Gaming really has to do with claim construction. It's not in front of you today to know what's challenging the construction of the program. Well, didn't you decline mechanical switches when you were distinguishing yourself from overall Connor? Yes, we did distinguish mechanical switches, but what we didn't distinguish, if you look at the language, what we didn't distinguish was use of mechanical sensors with a computer program. When you look at that language, the language they cite against no Connor, well, Connor is simply a physical switch and it's just an on-off. Mr. Stedman says they have no program. It's just a mechanical switch. And you're honored if you look at Mr. Terry Euchie's... A hardware switch, but that's... And they don't dispute. There is a computer program. There's a little bit of... The record is not real clear on what the scope of the computer program. Mr. Terry Euchie initially said there is no computer program to detect the absence of a finger. In the supplemental, he then suggests there is a computer program that detects the absence of a finger. And what we wanted was a WU-56 app deposition of Mr. Terry Euchie because that is the only fact or the only set of facts that they rely on for the summary judgment. We haven't had a chance to press Mr. Terry Euchie and cross him on his declaration. So I can't give you the details of how their computer program works because we didn't get a chance to deposit before the summary judgment order came out. And so that's all I can say as to the computer program. I know it's there. When we tested it, put a declaration in just by observation and Mr. Eric put that in, he thought that the computer program did detect it. The presence of a finger. He also thought that the computer program detected the absence of a finger. But Mr. Terry Euchie and his declaration seems to suggest we're right that he does detect the absence of a finger. He was silent after the paragraph and the presence of a finger. It's unclear what he's exactly saying. But it goes to the main issue that we can't tell that's why we asked for the WU-56 app deposition and we took the success of discovering including deposition of Mr. Terry Euchie and putting it in an expert report based on what we find from Mr. Terry Euchie and putting it in the opportunity. Okay. I think we heard the arguments on the comments. Hand that to the clerk there