Legal Case Summary

. I think there are some claims that do limit to stainless steel and there are other claims that don't. In the originally filed claims associated with this application, you think that there were two sheet claims that had no restriction on corrosive resistance? Do you mean on the 07 set? I mean on this patent, that's the issue for the 804. The first application was when the banded, then it was renewed in the 077 application which emerged as the 804 patent. So there was no patent that came off of the parent application. So if you look at them together, you see tube sheets describe in the original without restriction as to material. But not in the 804 claims. Not in the claims that were filed in the 077 correct, Your Honour. 077 is the application that led to 804? Yes, Your Honour. And in fact, Penteiro admits there's no material limitation in the original claim 29 or in figure 2. Figure 2 introduces the alternative tube sheet that's in column 7, sorry column 8 starting at line 29. And that was new material in the 077 application. I'm sorry, that was not new material. That was new material in the 077 application, but figure 2 in the original was in the 692 and repeated verbatim in the 077. And that's the one that I quoted that described the tube sheet in terms of its function of collecting the tubes into a unified structure. So that material is carried forth verbatim. It provides disclosure of tube sheets made of whatever material would be understood by a person of skill in the art. And that in fact was metal cast iron steel stainless steel. What doesn't actually use those phrases, those words? It does not, Your Honour. But the prior art that's discussed in the patent and that is cited on the, during the prosecution of the patent does use those terms

. And Penteiro's own. But those are, that's the very prior art that you're disparaging. Not disparaging, Your Honour. There's no, there's no disparagement of the prior art. It's the district court that said that stainless steel is an essential element of these claims. Well, corrosion resistant material. Or corrosion resistant. It starts with the abstract. I mean, I know that the abstract doesn't mean much. But when you, when you look at it in the very first place, you see anything in this patent talks about how important corrosion resistance is. And then it's repeated over and over and over and over. I don't know how you can say that you're claiming anything other than corrosion resistant material. Well, Your Honour, there are many places in the, in the specification where it is not, there is not a requirement of corrosion resistance. And this is a, this is a patent where you have some claims directed to the tube sheets, some directed to the burner assembly, some directed to the, are there many places where it uses the word tube sheet and doesn't include the word stainless steel or corrosion resistance? Well, it uses the word, a heat, words heat exchanger, Your Honour, because I don't, I'm not talking about the heat exchanger. That word, I mean, the word, that's an issue is whether the tube sheet itself has to be stainless steel or corrosion resistant. Right. And I think Your Honour that the heat exchanger is the structure that includes the tube sheet. And certainly any person of skill in the art understood that. And we presented that

. And we answered my question though, my question is, are there many places in the patent when you specifically refer to tube sheet that it doesn't include the word stainless steel or corrosion resistant, modifying tube sheet? I think Your Honour that there are a couple of places where it refers to the tube sheet metal. Where? That's nine, colon nine ten. Pardon? Column nine? Column nine. What lines? And in the... Where in colon? Are you supposed to just look at the whole column? No, no, no, no, what you're talking about? My apologies. There is reference to a flowing of the tube sheet metal in lines nine to ten. And there is also fluid deformation of the tube sheet metal referred to in column thirteen. But before all of that, before all of that in column six line 34, you have a sentence, a pair of in plates, seventy two, seventy four. Are sodded, welded or otherwise affixed in watertight fashion on each terminal. So soldering and welding, of course, refers to a metal structure and the whole... Well, that's not tube sheet, that's talking about the end plates. The end plates are the same as the tube sheets, Your Honour. As you will see in column eight, one twenty nine, figure seven shows an alternative tube sheet end plate. It states they're showing that those are the same things. Well, yes, but if you finish reading that the rest of those lines, it says the tube sheet is preferably formed from a thin plate or sheet of stainless steel

. Yes, that's correct, Your Honour. That is the preferred and body minute reduced. But I understand that if it's mentioned one time, or maybe a couple times when it's describing one specific example to preferred embodiment, but almost every single time it uses the word tube sheet here, it talks about it being a stainless steel tube sheet. Starting with the abstract, where it talks about the importance of the corrosion resistance and throughout. Yes, there you can pull out some isolated insinance where it's discussing other aspects of how the tube sheet is formed and alike, but I don't see. I mean, when you have, what's the standard here? I mean, isn't it if almost everything talks about this tube sheet being stainless steel or corrosion resistance? Isn't that enough for disclaimer? Respectfully, no, Your Honour. Well, what would require the first of all, what is required to make the written description requirement? No, I want to know what you think is required for disclaimer. I will answer your question if I may. It's disclosure. The disclosure is in this path. And then if you look for a disclaimer, you have to see an explicit reference to this path, this this invention does not cover. You think that you have to have magic words that say we display acts not magic, but there has to be enough there so that it's clear that it does not reach to cover the other. If it doesn't, does it have to say something about this patent does not cover or can it say can every basically every single discussion be directed at a specific more narrow claim term? If it, if throughout this, let's assume there are any other references you've found a few, but there weren't references where they use tube sheet without the word stainless steel. But they didn't say this doesn't cover or this isn't limited to stainless steel. Would you have a disclaimer there? I think that would be a tougher case for us, Your Honour, but I think there is disclosure that contradicts the determination of a disclaimer. And of course this, this specification. So how do we determine that? I mean, because I read this specification and it's talking about corrosion resistant materials for the tube sheets. It uses stainless steel most of the time. It talks about the importance of corrosion resistance

. That seems to be a pretty important part of this invention. And I don't see anything but stray references to non corrosion resistant material. Doesn't that mean a disclaimer standard? Your Honour, I believe it does not respectfully. And I think if the disclosure is in the patent that supports the claims, of course a patent is entitled to draw claims to various things, we presented the proposition that what's really interesting in this patent is the plastic header. The plastic headers had not been used up to that point over 100 years. But it's repeatedly talks about the fact that the corrosion resistance is really important because we're talking about pool water. Well, sometimes I don't like you about pool water. My problem is, and this goes back to my original question is, if I were to construe this claim under Phillips, I would say that the claim requires corrosion resistance. So then you've got a non infringement, but you still got a valid patent. The problem is you asked for a different claim construction that I think really makes sense. And that's not an issue before us. So now you've got you going to put your patent at risk. Respectfully, Your Honour, we disagree. We think that the disclosure is there to support it under the written description standard that corrosion resistance should not be read into the claims at issue here. There's one claim that calls for corrosion resistance to cheat. That's claim 46. And under the doctrine of claim differentiation, was that claim mean if the other claims all have to include corrosion resistance in them? There are claims in this patent that cover tube sheets, corrosion resistance tube sheets, stainless steel tube sheets, and claims that cover plastic headers. And the combination claims that we're looking at here, 43 to 45 to 47, all cover corrosion, not sorry, all cover a plastic header on a heater design. That was something that had never been seen before in the history of these products, although they had been made for over a hundred years

. What does that have to do with whether or not the tube sheet is limited to stainless steel or corrosion resistance? Well, the inventor is entitled, Your Honour, to present a claim that's emphasizing the combination of elements, including the new plastic header, without restricting the tube sheet. The tube sheet could be made of cast iron, it could be made of steel, it could be made of stainless steel. It could be made of that, but if you didn't claim put that in your specification, then you don't get it by adding new broader claims later on. I mean, the original claims that were associated with this patent, did you stainless steel every time it used the word tube sheet? Well, Your Honour, respectfully, there was not a broadening over what is disclosed in the specification when you understand it from the perspective of a person of skill in the art, who knows that you make a heat exchanger and its tube sheets or end plates out of metal, and that had been the practice. I just want to explore the disclaimer concept with you, and let me see if we can figure out, basically, along a spectrum, what kinds of things would amount to disclaimer. So certainly, I would think, in order to be reasonable, you would agree that if the specification said, make this out of stainless steel, any other metal won't work because it will be too heavy and it will corrode, period. That's even if the claim later just said tube sheet and didn't say stainless steel, would that amount to a disclaimer in your mind? I believe it would, Your Honour. So even though it's not saying don't make it out of this, that or the other, it's an implicit disclaimer because it's telling you affirmatively to do something and saying, and it's conveyed to the world, this is the scope of my invention, this is, I'm aware that you could make it out of other materials. It's not a matter of being uninformed, it's a matter of carving them out for a specific reason. The opposite end of that spectrum is just repeatedly talking about preferably using stainless steel or preferably using a corrosive resistant material, without, for example, disparaging non-corrosive resistant materials. I'm not, none of these are your case. I'm trying to set out two oppositions of the spectrum and then we'll kind of cabin in on your facts and see which end there. So I just want you to know where I'm going. So you don't fight me too much on what I think are oppositions of the spectrum. So the other opposite end would be this example, right, where just because you refer to something as a stainless steel tube sheet, if you never explain why the stainless steel is important and should be preferred over other materials and don't disparage other things, that wouldn't amount to a disclaimer in your view, right? Yes. And so what this case is, there are definitely cases where we've had where we've said you don't need magic language. So you don't need to say no disclaimer. But usually there's something more than just using it repeatedly in the spec, like there's something like the present invention is. Or language that really makes it clear to the world is your argument that there isn't any such language as that in this specification

. Well, there is language that says the present invention includes and then it lists a bunch of things. But it does not say it's limited to that. That's the only way you can do it. And even in your your far spectrum case, your honor, if there were language that said you should do it this way, but there is other disclosure in these specification that supports the claims that are presented and approved by the state of the spectrum. And if you're not using it by the patent examiner, then I think we do have support. But the problem is I don't see that other disclosure in this specification. I think that my colleagues asked you to identify where in the spec you talk about a tube sheet in a manner that isn't limited to stainless steel or at least corrosive resistance, maybe even stainless steel. And you haven't identified anything for us. I mean, you pointed the top of column nine, but that is the continuation of a discussion of figure seven, which begins with the tube sheet 108 is preferably formed of a thin plate of steel sheet of stainless steel. And then even at the top of column nine, where you pointed to the word tube sheet, it was always two sheet 108. So that's a continuation of that same discussion. And I think this isn't just a matter of the through in stainless steel. He explains this inventor explains all the reasons why stainless steel is important. It's lighter weight and he stresses how lightweight it is. You know, it's I mean, plastic might be even lighter weight, but he then disparages plastic a little bit in other places. But for different parts, not tube sheets, I understand. But I guess I guess I'm struggling with where this lies on that disclaimer spectrum. It's somewhere more towards the middle for sure, but I mean, the present invention language captures the notion of the corrosive resistance. It's stressed throughout non corrosive resistant materials are disparaged

. Maybe that picture taken together. This isn't a case where you just tie the word stainless steel to the tube sheet. Maybe you have all these other indicia that are enough for disclaimer. Well, you're on respectfully the first time that a tube sheet is mentioned in column six lines 3435. It refers to a pair of end plates. It describes them by their function, which is to unify the tubes into an integrated assembly. Did you say column six, a pair of end plates? Yes. A pair of end plates, 72, 74 are soldered welded or otherwise affixed in watertight fashion on each terminal end of the tube set, unifying the tubes into an integrated assembly. That tells a there's no restriction on the material there. The first time that there is any mention of a tube sheet. I don't understand that. I mean, yes, when you're talking about the descriptions and stuff in the summary of the invention paragraph in column three, it says the heat exchanger includes a pair of space parable parallel stainless steel tube sheets. Yes. I mean, that's the first thing that I'm not going to go back from column three to see if it's mentioned before column three, but that's the first time tube sheets are mentioned or at least before column six and it says stainless steel. Your honor, you are correct in the summary of the invention, but when this pattern is taught as describing in detail what it's disclosing, the first reference it makes to end plates or tube sheets is in that column six where it does not restrict them as to material. But everything else does. I mean, even that preference language that you cite in column eight, I agree with the district court that that preference language more naturally refers to the width and not to the material of the tube sheet. So I don't think that supports you either. Everything here talks about how important corrosion resistance is

. So I don't know how you can say that you've invented something without a corrosion resistant element just because you have one statement where it doesn't actually mention material. It doesn't mention corrosive material. It just doesn't mention material at all. It doesn't mention material at all and that leaves it to the person of skill in the art who's been making these devices out of cast iron, which the patent says is not corrosion resistant and out of other metals, which arguably are corrosion resistant if they serve purpose for the lifetime of the product. So we think it is disclosed there and your honor with respect to the reference figure in column eight, it starts by saying figure seven shows an alternative to sheet, an alternative to sheet. That language cannot be ignored. Okay, Mr. Bromberg, we are way over time. So I'm going to have to cut you off for now, I'll restore a minute or two over bottle time, but we need to move on and we may be here for Mr. Voland. Thank you. Mr. Voland, if you need a little extra time, obviously we'll accommodate because we allowed Mr. Bromberg to go away over. Thank you, you're welcome. Good morning and may I please court a more poll for you? Okay, I have to ask one big picture of business question before we go any further. Is Pentea a pool heater and spa company? Yes. Are you actually arguing for not infringement purposes that yours doesn't infringe because it corrods? And how the heck can you do that as a matter of business judgment? How in the world can you argue for not infringement? Our product doesn't infringe because it's awful. I'm awful

. You're talking about claim 46. Yes. Yes. Okay. I mean, the business people signed off on this? You were here. They had to over, right? There's a fundamental difference. Okay. The tube sheet in Pentea's products doesn't touch the water. Okay. It's a dry tube sheet design. So you have the, let's say it's a vertical tube sheet with holes in it and these heat exchanger tubes come around and they go through the holes. They go right through the tube sheet. So the water is within those tubes and not within the, it doesn't pass through the tube sheet material. It doesn't contact the water on the other side, on either side of the tube sheet. Can you have a full meter? Do I? Uh-huh. I do. There's not a part in there dry. Not a part in that thing that's dry at any given time when it's operating. Yes. But anyway, all right, I'm going to let you also, because it doesn't really have a lot to do with what we mainly want to talk about. Well, I would just sort of left out loud when I read that. No, stainless steel is obviously more expensive. So if, if, if, pentagon, we get a, we're using carbon steel which, which works structurally fine, but if it's exposed to the water, sure it's going to corrode and it's going to give the same problem that the 804 patent causes. So what, how does your water not touch the tissues? I'm shocked. I mean, I, I mean, this is important to, for, to claim 46. So, it's important on the issue of non-infringement that we assertive as an alternative ground based on the in communication with language as well. So, um, if you have a tube sheet that's like this, okay, and you've got a plastic manifold on one side that houses water, okay, with an inlet and an outlet. And you've got heat exchanger tubes on the other side, okay? Those tubes, and this is what's described in the 804 patent largely, can come up and then engage the tube sheet and attach to it here so that the water can go through that hole and into the manifold on the other side and circulate, okay, through the tubes, through the manifold, in and out of the manifold. So, one side of the tube sheet is wet in a 804 patent type design or some heater type designs and it stays, and it can be wet where the water comes in here too, but in pentairs products, the tube goes right through, okay, and the tube itself attaches to the plastic manifold. So, there's no water circulating against the backside of the tube sheet. It's called a dry tube sheet design versus a wet tube sheet design. I hope that explains it. Okay. Now, let, uh, I'm going to jump right into questions here. The piece about your argument that I'm not comparable with as your reliance on this essential elements test. Is there really such a test? I wouldn't call it essential elements in quotes if we use that term. It may have been a little unclear. I look at the issue as when you get into written description

. But anyway, all right, I'm going to let you also, because it doesn't really have a lot to do with what we mainly want to talk about. Well, I would just sort of left out loud when I read that. No, stainless steel is obviously more expensive. So if, if, if, pentagon, we get a, we're using carbon steel which, which works structurally fine, but if it's exposed to the water, sure it's going to corrode and it's going to give the same problem that the 804 patent causes. So what, how does your water not touch the tissues? I'm shocked. I mean, I, I mean, this is important to, for, to claim 46. So, it's important on the issue of non-infringement that we assertive as an alternative ground based on the in communication with language as well. So, um, if you have a tube sheet that's like this, okay, and you've got a plastic manifold on one side that houses water, okay, with an inlet and an outlet. And you've got heat exchanger tubes on the other side, okay? Those tubes, and this is what's described in the 804 patent largely, can come up and then engage the tube sheet and attach to it here so that the water can go through that hole and into the manifold on the other side and circulate, okay, through the tubes, through the manifold, in and out of the manifold. So, one side of the tube sheet is wet in a 804 patent type design or some heater type designs and it stays, and it can be wet where the water comes in here too, but in pentairs products, the tube goes right through, okay, and the tube itself attaches to the plastic manifold. So, there's no water circulating against the backside of the tube sheet. It's called a dry tube sheet design versus a wet tube sheet design. I hope that explains it. Okay. Now, let, uh, I'm going to jump right into questions here. The piece about your argument that I'm not comparable with as your reliance on this essential elements test. Is there really such a test? I wouldn't call it essential elements in quotes if we use that term. It may have been a little unclear. I look at the issue as when you get into written description. The cases, of course, are you look at the four corners. You take the document that was filed, you match it up with here, what was later claimed, and you make a determination. Was there possession, okay, Ariad says possession within the four corners, okay. So, here what you have is a disparagement in the background of cast iron, corrosion and rusts, etc. Very next paragraph down in the summary says the objects of the present invention and the problems in the prior art are solved by the present invention that it lists, ABCDEFG. One of those is stainless steel tube sheets that specifically addresses the problem. And in your, this court's pacing technologies case, honey, well, and sime, others we cited. The present invention language when it's set up just like that, it creates what pacing technologies called a quote unquote unmistakable disclaimer. Now, here in the 804 case, take the 077 application. But if this is a disclaimer and if you're right, then why isn't the problem? I mean, I don't see how this fails written description. It's just that the claims are not properly construed. I mean, claim constructions, a question of law, parties can't stipulate to it. We, you know, has to be the predicate that's decided before, if foragement or validity. So, I mean, it's kind of like you're making a case for yourself and a case against yourself at the same time, because I don't see how you jump to written description without first construing the claims. And if you're right about the disclaimer, then the claims are narrow. This year honor was how the claims were construed and the infringement contensions that we received from the owner of the patent. Okay, so just like came up in Mr. Bromberg's argument. Okay, they want to take a broad claim construction

. The cases, of course, are you look at the four corners. You take the document that was filed, you match it up with here, what was later claimed, and you make a determination. Was there possession, okay, Ariad says possession within the four corners, okay. So, here what you have is a disparagement in the background of cast iron, corrosion and rusts, etc. Very next paragraph down in the summary says the objects of the present invention and the problems in the prior art are solved by the present invention that it lists, ABCDEFG. One of those is stainless steel tube sheets that specifically addresses the problem. And in your, this court's pacing technologies case, honey, well, and sime, others we cited. The present invention language when it's set up just like that, it creates what pacing technologies called a quote unquote unmistakable disclaimer. Now, here in the 804 case, take the 077 application. But if this is a disclaimer and if you're right, then why isn't the problem? I mean, I don't see how this fails written description. It's just that the claims are not properly construed. I mean, claim constructions, a question of law, parties can't stipulate to it. We, you know, has to be the predicate that's decided before, if foragement or validity. So, I mean, it's kind of like you're making a case for yourself and a case against yourself at the same time, because I don't see how you jump to written description without first construing the claims. And if you're right about the disclaimer, then the claims are narrow. This year honor was how the claims were construed and the infringement contensions that we received from the owner of the patent. Okay, so just like came up in Mr. Bromberg's argument. Okay, they want to take a broad claim construction. Okay, in our view, they clearly exposed themselves. In our view, when we picked up this patent and looked at it and looked at the history and we looked at the summary of the invention, yeah, I see that question. They do, they expose themselves and they take a broad claim construction, but it's a question of law. Now, let me morph this a little bit and I recognize this is a different scenario. But what's bothering me is if this were a case of statutory interpretation, they may be asking us to take a broad view of the statute, because that's what they need in order to prevail on whatever kind of claim they've raised. But we're not necessarily going to accept that broad view of the statute if it's incorrect, and especially if it would result in the statute being unconstitutional, for example. So why ought I to accept a broad but improper view of the claims that result in their invalidity? Because that's the patenties decision to assert them of that scope, and it was the parties decisions during the lawsuit to litigate them of that scope. And there was three years of litigation over that scope all the way through summary judgment where judge Wu made very specific findings on both the written description, as well as the invalidity products. So why didn't you argue for a narrower claim construction that you were more interested in knocking out the patent than in having a finding of non-improagement? Well, you know, if we had done that, Your Honor, I would have been accused of reading limitations from the specification into the claim. It's always a two-edge sword, okay? So you've got in claim 43 and 47, the independent claim. You've just got the tube sheet unrestricted as to material. If we go and argue, Oh, Your Honor, that should be construed really narrowly, okay? The specification is all about stainless steel and corrosion resistance. Okay, what we're going to hear back is your reading limitations from the spec into the claims, and you've got claim differentiation with claim 46, which specifically calls out corrosion resistance. So that's where it is. There's no- It just seems like I understand rock in a hard place. I get it, but it seems like the best way to do these things is to argue in the alternative. You know, for you as a defendant, you know, these claims are narrowed and should be construed as X. And if you're not going to consume the X, I'm going to consume broader than this spec doesn't support it. Because you know, there's a lot of candidates to claim construction and among them are construa claims, so as to assure its validity, if there are multiple possible constructions, and your whole argument is there's a disclaimer in this spec

. Okay, in our view, they clearly exposed themselves. In our view, when we picked up this patent and looked at it and looked at the history and we looked at the summary of the invention, yeah, I see that question. They do, they expose themselves and they take a broad claim construction, but it's a question of law. Now, let me morph this a little bit and I recognize this is a different scenario. But what's bothering me is if this were a case of statutory interpretation, they may be asking us to take a broad view of the statute, because that's what they need in order to prevail on whatever kind of claim they've raised. But we're not necessarily going to accept that broad view of the statute if it's incorrect, and especially if it would result in the statute being unconstitutional, for example. So why ought I to accept a broad but improper view of the claims that result in their invalidity? Because that's the patenties decision to assert them of that scope, and it was the parties decisions during the lawsuit to litigate them of that scope. And there was three years of litigation over that scope all the way through summary judgment where judge Wu made very specific findings on both the written description, as well as the invalidity products. So why didn't you argue for a narrower claim construction that you were more interested in knocking out the patent than in having a finding of non-improagement? Well, you know, if we had done that, Your Honor, I would have been accused of reading limitations from the specification into the claim. It's always a two-edge sword, okay? So you've got in claim 43 and 47, the independent claim. You've just got the tube sheet unrestricted as to material. If we go and argue, Oh, Your Honor, that should be construed really narrowly, okay? The specification is all about stainless steel and corrosion resistance. Okay, what we're going to hear back is your reading limitations from the spec into the claims, and you've got claim differentiation with claim 46, which specifically calls out corrosion resistance. So that's where it is. There's no- It just seems like I understand rock in a hard place. I get it, but it seems like the best way to do these things is to argue in the alternative. You know, for you as a defendant, you know, these claims are narrowed and should be construed as X. And if you're not going to consume the X, I'm going to consume broader than this spec doesn't support it. Because you know, there's a lot of candidates to claim construction and among them are construa claims, so as to assure its validity, if there are multiple possible constructions, and your whole argument is there's a disclaimer in this spec. So it's hard not to certainly be awfully tempted to reconstruct the claim appropriately. Now it would still result in your non-infringement if we agree with you on claim 46, because this claim would devolve into an identical scope, right? It could well under your hypothetically-generous. Yeah, it's it's it's. But assuming we can't get the claim construction because it's not before us on appeal, right? Then. Part of the problem is you you clearly fall somewhere in the middle on Judge Moore's spectrum. And so. So you know, so what are your strongest points for purposes of a disclaimer? Sure. Column three clearly disparages cast iron, which which part I mean, take me line. I don't know. You're on. Happy to column three. Right at line 39. Cast iron has been utilized in heat exchangers for economic reasons, but when subjected to even mildly corrosive liquids, oxidizes or dissolves. Okay, oxidizers or dissolves means rust. The district court made a finding that it's undisputed that the tube sheets and pentares accused heaters rust. And that factual finding hasn't been and can't be shown to be clearly erroneous. So it's jumped into 46 for a minute, but that's one aspect. The second aspect is what is this discussion of cast iron going to the tube sheets? Sure, that when it says heat exchangers, a heat exchanger is formed of the tube sheets and then the tubes which cross between them essentially. So what you then see is the summary of the invention, which has been discussed

. So it's hard not to certainly be awfully tempted to reconstruct the claim appropriately. Now it would still result in your non-infringement if we agree with you on claim 46, because this claim would devolve into an identical scope, right? It could well under your hypothetically-generous. Yeah, it's it's it's. But assuming we can't get the claim construction because it's not before us on appeal, right? Then. Part of the problem is you you clearly fall somewhere in the middle on Judge Moore's spectrum. And so. So you know, so what are your strongest points for purposes of a disclaimer? Sure. Column three clearly disparages cast iron, which which part I mean, take me line. I don't know. You're on. Happy to column three. Right at line 39. Cast iron has been utilized in heat exchangers for economic reasons, but when subjected to even mildly corrosive liquids, oxidizes or dissolves. Okay, oxidizers or dissolves means rust. The district court made a finding that it's undisputed that the tube sheets and pentares accused heaters rust. And that factual finding hasn't been and can't be shown to be clearly erroneous. So it's jumped into 46 for a minute, but that's one aspect. The second aspect is what is this discussion of cast iron going to the tube sheets? Sure, that when it says heat exchangers, a heat exchanger is formed of the tube sheets and then the tubes which cross between them essentially. So what you then see is the summary of the invention, which has been discussed. And I don't think there's any dispute about the present invention. And you've got all the disclaimer cases based on the language of the present inventions. But where are you jumping to the present inventions? Where are you going? Column three, the heading summary of the invention. Okay, line 54, the problems and disadvantages associated with conventional devices and methods, etc. are overcome by quote, the present invention, which includes and it goes on and lists the elements. But it doesn't say anything about a tube sheet or a stainless steel tube sheet or a corrosive resistant tube sheet. It does at line 64 and 65. In a different sentence, not containing the present invention language. But I would respectfully say this. And by the way, this is the only complaint I have about your brief, but I do want to point it out because it did jump out of me and bother me. In this exact point, you put present invention dot dot dot and then the rest of that other sentence about tube sheet. Okay. And I found that to be a disingenuous and overbroad claim on your part because you did it in a way that implied it was all part of the same sentence. Please don't do that again in the future because you've got a very credible position and you don't want to undermine the credibility of your own position by doing something overreaching. Got it, Your Honor. And I would just note that again, the heading itself is summary of the invention, Your Honor. And in the next sentence, it talks about the present invention and our position that you just referenced was intended to encompass the entire paragraph, which is how we read it as the present invention. The next aspect that goes to a disclaimer is there's nowhere in the detailed description that takes the tube sheet. Well, wait a minute

. And I don't think there's any dispute about the present invention. And you've got all the disclaimer cases based on the language of the present inventions. But where are you jumping to the present inventions? Where are you going? Column three, the heading summary of the invention. Okay, line 54, the problems and disadvantages associated with conventional devices and methods, etc. are overcome by quote, the present invention, which includes and it goes on and lists the elements. But it doesn't say anything about a tube sheet or a stainless steel tube sheet or a corrosive resistant tube sheet. It does at line 64 and 65. In a different sentence, not containing the present invention language. But I would respectfully say this. And by the way, this is the only complaint I have about your brief, but I do want to point it out because it did jump out of me and bother me. In this exact point, you put present invention dot dot dot and then the rest of that other sentence about tube sheet. Okay. And I found that to be a disingenuous and overbroad claim on your part because you did it in a way that implied it was all part of the same sentence. Please don't do that again in the future because you've got a very credible position and you don't want to undermine the credibility of your own position by doing something overreaching. Got it, Your Honor. And I would just note that again, the heading itself is summary of the invention, Your Honor. And in the next sentence, it talks about the present invention and our position that you just referenced was intended to encompass the entire paragraph, which is how we read it as the present invention. The next aspect that goes to a disclaimer is there's nowhere in the detailed description that takes the tube sheet. Well, wait a minute. If I were to read everything in that whole paragraph as the present invention, then you're going to tell me I should read this patent as limited to a front header, which is plastic, a rear header, which is plastic. They have to be removable attached. Do you understand? I mean, the difficulty with taking a present invention language that appears in one sentence and then applying it to every aspect of the entire paragraph is that would amount to an awful lot of disclaimer suddenly. And I don't know if that reaches clear and unmistakable. Now, maybe the difference is everything else in this patent screams tube sheets are stainless steel. Maybe that's the answer. But maybe it's not a magic of that one sentence. What do you think? Yeah. Your Honor, again, we think that in this, in the summary, stainless steel tube sheets, a person of ordinary skill, you are reading that paragraph and come away that that is the only possible material. Later references to that. And you think it's stainless steel, not even corrosive resistant. You think it has to be stainless steel? We asserted that, but we accept corrosion resistance because it reaches the same conclusion. It's a fine point. But the rest of the description, it never broadens that description. It may say tube sheets referring to figure two by the number. Okay. But for example, whereas Mr. Bromberg pointed to column eight in the middle line, 29 discussing, discussing tube sheets 108. If you go down further at line 61 of column eight, it's very clear that it says stainless steel tube sheet 108

. If I were to read everything in that whole paragraph as the present invention, then you're going to tell me I should read this patent as limited to a front header, which is plastic, a rear header, which is plastic. They have to be removable attached. Do you understand? I mean, the difficulty with taking a present invention language that appears in one sentence and then applying it to every aspect of the entire paragraph is that would amount to an awful lot of disclaimer suddenly. And I don't know if that reaches clear and unmistakable. Now, maybe the difference is everything else in this patent screams tube sheets are stainless steel. Maybe that's the answer. But maybe it's not a magic of that one sentence. What do you think? Yeah. Your Honor, again, we think that in this, in the summary, stainless steel tube sheets, a person of ordinary skill, you are reading that paragraph and come away that that is the only possible material. Later references to that. And you think it's stainless steel, not even corrosive resistant. You think it has to be stainless steel? We asserted that, but we accept corrosion resistance because it reaches the same conclusion. It's a fine point. But the rest of the description, it never broadens that description. It may say tube sheets referring to figure two by the number. Okay. But for example, whereas Mr. Bromberg pointed to column eight in the middle line, 29 discussing, discussing tube sheets 108. If you go down further at line 61 of column eight, it's very clear that it says stainless steel tube sheet 108. And we respectfully submit, there's no doubt at all that the specification as a whole discloses only stainless steel for the two sheets. And I would note that it went all of nine, actually, better for you. Yeah, and I'm working my way there, but I was asked to show specifically where we contend the disclaimer comes from. I mean, column nine then after that discussion in bottom of eight line, 18, those couple sentences. The stainless steel sheet metal tube sheet is used in combination with expanded copper or stainless steel tube sheets. And plastic headers and economical corrosion resistant heat exchanger is produced. And the next sentence goes on to describe the advantages of avoiding stains, stained water and mineral deposits in the pool water. We also note as Judge Hughes pointed out, the original claims filed with the 077 were all limited to stainless steel tube sheets. The court in gentry gallery specifically gave that fact some weight in the overall calculus and had the site in our brief. Mr. Bromberg cited the 692 parent application, but the parent is not incorporated by reference into the 077. That argument only arose in the reply, so we didn't address it in our intermediate brief. But this court's president, it's in raid desaversky. It's a CCPA case 1973, 474, F second, 671, makes clear that merely characterizing an application as a CIP. C, doesn't serve to incorporate the parent. And mere reference to a prior application doesn't allow you to rely on the prior application for disclosure support. And K were also argued that certain claims like claims 22 to 42 and Mr. Bromberg referenced column 13 in his argument. Those claims didn't exist when the 077 was filed, so they simply don't count in determining whether there's written description

. And we respectfully submit, there's no doubt at all that the specification as a whole discloses only stainless steel for the two sheets. And I would note that it went all of nine, actually, better for you. Yeah, and I'm working my way there, but I was asked to show specifically where we contend the disclaimer comes from. I mean, column nine then after that discussion in bottom of eight line, 18, those couple sentences. The stainless steel sheet metal tube sheet is used in combination with expanded copper or stainless steel tube sheets. And plastic headers and economical corrosion resistant heat exchanger is produced. And the next sentence goes on to describe the advantages of avoiding stains, stained water and mineral deposits in the pool water. We also note as Judge Hughes pointed out, the original claims filed with the 077 were all limited to stainless steel tube sheets. The court in gentry gallery specifically gave that fact some weight in the overall calculus and had the site in our brief. Mr. Bromberg cited the 692 parent application, but the parent is not incorporated by reference into the 077. That argument only arose in the reply, so we didn't address it in our intermediate brief. But this court's president, it's in raid desaversky. It's a CCPA case 1973, 474, F second, 671, makes clear that merely characterizing an application as a CIP. C, doesn't serve to incorporate the parent. And mere reference to a prior application doesn't allow you to rely on the prior application for disclosure support. And K were also argued that certain claims like claims 22 to 42 and Mr. Bromberg referenced column 13 in his argument. Those claims didn't exist when the 077 was filed, so they simply don't count in determining whether there's written description. I think we have your argument, are there any other points you want to touch on that you feel like you haven't had an opportunity to because we let him go over some willing to be generous. If you don't need to, that's good too. I'm okay. Okay, very good. Mr. Bromberg, how about two minutes of her bottle time, please? Thank you, Your Honor. I agree with Mr. Bolum that stainless steel is more expensive. And indeed, economical cast iron is an advantage of cast iron, so it's not disparaged for that. And really, the invention here is a series of inventions. The plastic header is very important. Corrosion resistant tube sheet is very important. You don't have to claim all of them in one claim in order to have a viable claim that is fully supported by the specification. And on the issue of corrosion resistant, Your Honor, the there was no claim construction of that term. It just didn't come up. The we submitted a declaration from Dr. Clark, an expert in this field for 40 years, who has seen structures in furnaces and fluid heaters and what have you that were so corroded that they crumbled into dust. And he thought that it's something that does not have that experience where the component lasts for the lifetime of the product, even though it has some surface rust still needs the definition of corrosion resistant. But in column 9, it talks about the importance of corrosion resistance being that the water is not discolored

. I think we have your argument, are there any other points you want to touch on that you feel like you haven't had an opportunity to because we let him go over some willing to be generous. If you don't need to, that's good too. I'm okay. Okay, very good. Mr. Bromberg, how about two minutes of her bottle time, please? Thank you, Your Honor. I agree with Mr. Bolum that stainless steel is more expensive. And indeed, economical cast iron is an advantage of cast iron, so it's not disparaged for that. And really, the invention here is a series of inventions. The plastic header is very important. Corrosion resistant tube sheet is very important. You don't have to claim all of them in one claim in order to have a viable claim that is fully supported by the specification. And on the issue of corrosion resistant, Your Honor, the there was no claim construction of that term. It just didn't come up. The we submitted a declaration from Dr. Clark, an expert in this field for 40 years, who has seen structures in furnaces and fluid heaters and what have you that were so corroded that they crumbled into dust. And he thought that it's something that does not have that experience where the component lasts for the lifetime of the product, even though it has some surface rust still needs the definition of corrosion resistant. But in column 9, it talks about the importance of corrosion resistance being that the water is not discolored. That's not the same as completely crumbling into dust. That is the same as rust, right? Well, Your Honor, I think that it depends on the structure of the tube sheet. As Mr. Bowling was explaining, you can have a wet tube sheet environment and a dry tube sheet environment where you don't permit the water to get in touch with the tube sheet metal. And therefore, the rust will not get into the water. So that is another aspect of the invention. Yeah, but that's not what column 9 talks about. Column 9 talks about tube sheets that are corrosion resistant so that even when the water goes through them, you're not going to discolor the pool water. That may be Your Honor, but it also talks about the configuration with the alternative tube sheet of figure 7 where you have the nipples. And you put the tubes through. The tubes are always made of copper, almost always made of copper. So you put the tubes through them and then you expand the tubes to fit tightly. And then the water is going to run through the tube sheet without touching the tube. So that is a configuration that's explicitly laid out in columns 7, sorry, 8 and 9, as well as soldering or welding those tubes to the tube sheet. So those are all alternative designs that this invention, this set of inventors put forward as way to the tube. Okay, Mr. Robert, I think we have your argument. Sorry to cut you off, but we have to move on for today. The case is taken under submission and I thank both counsel for their argument

. You don't need to switch sides. I hope you are welcome