or to mention versus the Coleman company. Please proceed. Tell me how to say your name, Anis. Good morning, Your Honours, and may it please the Court. There are two principal issues that are involved in this appeal. The first, of course, is the District Court's claim construction of the D714PAT. The second issue relates to the judge's decision to strike an ex-growth, the testimony of Peter Bressler, an industrial designer with vast experience in industrial design over four decades of experience in the field. Although the industrial design is a really, really big field, I mean, he could be deciding the inside of a power plant, right? That is possible. Right. So that's a big far cry different from designing floaties. This is actually a case I completely grasp the technology and even though it's a design bat. These two issues, Your Honours, they are not dependent upon one another. The decision is not dependent upon the other, but they both are infected by the same problem. And that is, is that the District Court, myopically focused on the title of the design patent itself, and then defined or constructed that title as it applies to commercial location devices themselves. And in course, doesn't the claim itself, though, say the ornamental design for a personal floatation device is shown and described. So the claim itself refers to the personal floatating device. Don't even have to look to the title. No. It does, Your Honours, say the personal floatation device or the ornamental design of the personal floatation device. The MPEP directs us that a design patent's title does not define its scope. That's a 1504
.04. Just after that, the MPEP instructs an applicant that you are required to identify in the claim the same thing that you identified as the title. So if you are going to suggest that if the title ends up in the claim that that defines the claim, right, then doesn't that swallow the rule? It does. It swallows the rule that says the title can't define scope of the claim. Therefore simply by placing the word title in the claim, that doesn't define the scope. The scope of the design patent itself is defined by the drawings and what's depicted in the drawings. Even if we agree that the functional aspects that make this a personal floatation device have to be not considered in the claim construction, doesn't our precedent say you don't get rid of them altogether? You look at the ornamental aspects of them. That's correct, Your Honor. Perhaps the best example of that is in the recent decision of Ethicon Indo Surgery. And in that case, particularly the issue of claim construction was a bar. And the lower court there had found each and every aspect of the subject claim functional. And therefore, so in your case, to take, for example, I guess the round things that go over the arms, they're functional in a certain sense. But they also can have design aspects in the way they're shaped, you know, their size, their form, and the likes. So we have to look at the design aspects even if there is a certain functional device aspect of them as well. That's exactly what the Ethicon Indo Surgery case says. That's true. And that is simply a regurgitation of this court's precedent. Because if we didn't do that, like every bottle, which is designed patented, you would just exclude the whole bottle because it's functional and that it holds the fluid inside, right? That's correct. So one of the teachings, I guess, of Apple versus Samsung also. There was a request there to make a global rule
. And the court rejected the concept of the global rule. But nonetheless, the import of construction is to identify the non-functional aspects of the design. It didn't say you'd have to identify the functional aspects by using the term accept in her client construction. That's exactly what the district court did. She didn't endeavor to identify the ornamental aspects of those things that she found had some function. And said what she did was if it had some function, it was eliminated from the scope of the claim and could not be considered. Is functionality, is that a fact question that should be given deference? It's a great question. It depends upon what it is that is being considered. And if the information considered is competent evidence for the purpose, the ultimate issue of client construction, of course, is an issue that has no deference. It's reviewed the NOVO. And if there are legal errors that were committed during client construction, then then subsequent factual findings based upon those legal errors, the court also knows those findings, no deference either. That's, that's pursuant to the pan through the decision. But under, under CAVA, does that change anything here? I don't think so, Your Honor. In fact, I think that in subsequent cases like Shire, the court has been careful to identify that you don't need to focus on those elements. That if you can define the client without resort to extrinsic material and findings relating to that are not to be considered or have no relevance to the court. The dispute here truly isn't about the proper construction of the words, personal floatation device. Personal floatation device, as we indicated, isn't a term or an element of the patent's claim claim is stated in the drawings. Personal floatation device is the title, the title of the patent itself. And personal floatation device certainly is not the use or purpose of the claim to article. That use or purpose is to provide buoyancy to the wearer while they're in the water, that is to float or act as a floatation a
. The district court imposed requirements of 46 CFR, part 160, as limitations on the underlying article of manufacture and on the qualifications of any, what she called suitable or viable alternative designs. I think the root cause of the district court's error was the determination that the function of the article was personal floatation device. Well, personal floatation device is not a function. It's a thing, the article of manufacture itself. An article's function isn't determined by the title of the design patent. It's determined by what the thing does. What is it's intended use? If we agree to you that the district court air below in eliminating certain elements of the design and therefore had the wrong claim destruction, what, how should the case be treated? Well, I think, go ahead. I'm sorry. Go ahead. Yeah, I apologize for interrupting. Well, I think that the court can decide this matter on the evidence that's before it. If the court can also reverse and remain back for further proceedings consistent, is that the question asked the question is, would we remand for a new claim construction? Will we can through the claim? Would we find, you know, there's been a finding of non infringement here, right? That's true. I think that your honors could certainly reverse here and make its own decision based upon the claim construction. You were saying, you're suggesting when you say reverse here, you're saying reverse the finding of non infringement and remand? Well, if the non infringement was based solely upon the claim construction and it was once the court was stipulated, that's true. It wasn't even a finding. That's correct. Once the court made its claim construction, it was clear based upon that construction that there could be no infringement, right? So if the claim construction is wrong, the judgment would go wet, as it is predicated. Is it the only thing left to do that? The only thing we really could do is remand. I think that the courts can decide this issue on the record before. The court also would be the infringement issue? Is that the infringement issue? No, no, no
. Not the infringement issue. I'm sorry. The claim construction. You could construe the claim, right? You think we could. And send the case back for further change. You can reverse the claim construction and direct a new claim construction. Yes, the idea based upon the record that's before. So for me, it's still what has to be done even if we completely agree with you on the claim construction? Yes, certainly for purposes of infringement. And further questioning of the invalidity. I'm sorry, I'm missing some of your signature questions. I want to spend a brief amount of time on the court's decision to strike the testimony of Mr. Grassel. I think that there were two issues. Again, the court might optically focus on this term personal quotation, the title, and said that that then necessarily defined a pertinent art. The court misread this court's teaching ensemble. Send-dances are very interesting case where we had a lawyer who was actually serving as a physician. But he was putting this all aside. I mean, your expert admitted he had no expertise in actually developing these kind of wearable quotation devices, right? He's an industrial design. He does a lot of other kind of things. And his only, I guess, relevant experience was he owns a boat or something
. No, he's designed by what you're on. He's also designed school baguer. He's designed all kinds of buoyant materials. Sure. And so it probably wouldn't have been an abusive discretion to let that in. But why isn't an abusive discretion to exclude it when he specifically said, I have never in my professional capacity defined wearable quotation devices. He said specifically, I'm not an expert on personal quotation devices. On personal quotation devices. That's true when referring back to the title of the patent. The in-send dance, the court recognized that there was a difference between the pertinent art for defining the pertinent art as the field of tarps and covers. Although the patent there was directed to the narrower, rectangular, segmented covering systems, much more narrow. So it was the district court failed to follow the teachings of Sundance that led to the air. I will reserve the rest of my time for the results. Thank you, Ed. Tell me how to say your name, Council. Yes, Ms. McCulcock. You're in McCulcock? Yes, I'm in McCulcock. Okay, Ms. McCulcock, please proceed
. I'm Council for a Pelley Sport Dimension. Thank you for your time today. I would like to respond to Mr. Anis's position with respect to the patent title that being injected into the claim construction. This is an interesting point because as Judge Stoll pointed out, personal flotation device is a term that's used in the claim description as well. And in fact, Mr. Anis claims that it should not have been injected in the claim construction, but that is the proposed claim construction that was requested by Coleman. In fact, they requested... I don't understand how this matters because even if we conclude that we can talk about whether these are personal flotation devices and exclude any kind of functional aspects, you still can't just lop off whole parts that might have both functional and design elements. I mean, that's what Ethicon says, isn't it? Are you referring to Judge Hughes on the actual claim construction itself? Yeah, the district court said don't consider the, I guess the round flotty parts altogether, right? The very technical, very technical. Right. She said you can't consider those. In the court's claim construction, the court identified functional and non-functional features that is consistent with odds on. Yes, but... Are you saying that there is no design element at all to the ARM fans? The court found that they weren't in the form. The court found that the ARM fans were non- ornamental, that they were functional and dictated by function
. Why the ARM fans, these round things, are... See, this is the error in determining that a certain structure has function. Ethicon says, even if it has function, there may still be ornamental aspects to it, and that you have to be able to consider that. And the best example of that is the picture. I mean, you could have any kind of number of designs for these ARM fans. They don't have to be round cylinders. I've seen some where there are like four squares put together. They could be longer, they could be shorter, they can do all kinds of straps, although that might be functional. But those are ornamental aspects, and you can't just exclude the entire structure because you conclude that it has some functions. And that's what she did, isn't it? You're on it. Let me explain that point. Those arguments were made before Giacomo, and what Giacomo decided was that you needed the ARM fans to shape the way it was, which was tapered and round for it to function as a personal flotation device. But that just looks wrong. There was no evidence contradicting it. There was no evidence contradicting it. There was no evidence contradicting it. But the problem is, she's adding in things that are in the design pattern. The design pattern should be, I think we said in Egyptian goddess, mostly, you should just look at the picture
. And there's nothing in the picture that says this is completely functional. What the judge did was, in the district court, did was look at the article manufacturer. In this case, it was a personal flotation device. There's no dispute about that. And for a personal flotation device to function as intended, it has certain requirements. Mandatory safety requirements. Did you say that Apple versus Samsung says that you can't just eliminate whole elements? I don't believe Apple versus Samsung says that. In fact, I think Apple versus Samsung says that the Richardson case does not say that it does not state a rule that a district court has to eliminate entire elements from the Queen's scope. I think that's what Apple is saying. In Oddson, you said that this case, a similar to Oddson, or what the district court here was consistent with Oddson. But in Oddson, what they said is that the football is functional, I guess, and the fin is functional. You got to read those have functional aspects. But they didn't just completely eliminate all the any particular functional elements of the rocket football. And instead, this court said, you got to look at the overall design. You don't just eliminate parts. And so here, if you were following Oddson, you wouldn't eliminate the arm bands. Instead, you would look at the arm bands in combination with the torso portion in combination with the second arm band. And that's exactly what the court did in this case. No, I think the court eliminated the arm bands. You mean in the claim construction itself? So if you read the claim construction, the court said ornamental design of a personal flotation device, except the following features are functional
. So the court looked at those features in combination of the overall design. And that's what the court did in Ph.G. case in Oddson. And that is a typical way that the court's in considering functionality, look at how, whether something is functional. They look at the features and they look at it in combination of the overall impression of the design. But even after they determined that something has functional aspects, they just lock off that element saying this is functional. I don't know of any cases that have done that other than what the district court did here. Actually, there are some cases where functional aspects were not included at all. So for instance, in the Oddson case, if you look at the description of the claim construction, it's very detailed. And what the court was trying to do there was differentiate between a tossing ball and a ball that tosses like a football, but flies faster. That was a distinction the court made in its claim construction. It was a very detailed claim construction to ensure that the court captured the ornamental aspect of it and the functional aspect. But it also said it looked at the overall rocket like appearance of the design. It didn't eliminate the fan or the football. It didn't eliminate, but emphasize what the patents go through. I wanted that of inappropriate to do here. I think that..
. Instead of eliminating the armbands, talking about the overall design of the whole design of the PFD. I think the court was correct in determining that the armbands itself was functional. There was no ornamental aspect of it. And the reason is, and Judge Hughes might be right, there might be other designs out there that could have been used. But there was no such evidence before the court. The only alternative designs before the court... Why does the evidence... I mean, the evidence is they made a particular design choice in the picture they showed. And unless it's purely functional and it has to be shaped that way, and it only has a functional result than the rest of it's a design. That's absolutely correct, Your Honor. That was the only way that the armbands fit. But that's not true. I mean, just... I mean, it's not in the record, but we all know that the armband doesn't have to be in this specific circular shape. In the specific size it is to be functional as a flotation device. The size was not issue here, but the shape was. And the only evidence before the court, testimony of the inventor, testimony of the owner. The only expert that testified as well as the utility patent application stated that the armbands had to be shaped this way in a way that was tapered and round. And the reason is this. When... This is soon. You have stack of documents. And when you fold the stack of documents in a circle, it becomes tapered. That's the way that these armbands are manufactured. Now, in your separate... The evidence says it has to be round and tapered. Yes. Has to be, in order to function. Yes. My goodness
. In the specific size it is to be functional as a flotation device. The size was not issue here, but the shape was. And the only evidence before the court, testimony of the inventor, testimony of the owner. The only expert that testified as well as the utility patent application stated that the armbands had to be shaped this way in a way that was tapered and round. And the reason is this. When... This is soon. You have stack of documents. And when you fold the stack of documents in a circle, it becomes tapered. That's the way that these armbands are manufactured. Now, in your separate... The evidence says it has to be round and tapered. Yes. Has to be, in order to function. Yes. My goodness. I've had my children in the pool with these little ones with wings on them. They actually have wings. My daughter loves them. They're not round and tapered. Yes. I must be a terrible mommy because it must not be functioning properly to keep her afloat. Your Honor, I'm aware of those as well. And they are not personal flotation devices. And if you look at my... But you can't be possibly saying that the only way it's a personal flotation device that actually works is that it is this round circular too. It has to fit securely. There are many requirements. Safety requirements. What about the square? What about the picture? And the picture. And the flow. May I explain? What about the pictures on page 42 of the blueberry, for example? Just to give some context. Are those alternative proposals? Yes, they are the alternative with Kirner and Westman. Page 42 on it
. I've had my children in the pool with these little ones with wings on them. They actually have wings. My daughter loves them. They're not round and tapered. Yes. I must be a terrible mommy because it must not be functioning properly to keep her afloat. Your Honor, I'm aware of those as well. And they are not personal flotation devices. And if you look at my... But you can't be possibly saying that the only way it's a personal flotation device that actually works is that it is this round circular too. It has to fit securely. There are many requirements. Safety requirements. What about the square? What about the picture? And the picture. And the flow. May I explain? What about the pictures on page 42 of the blueberry, for example? Just to give some context. Are those alternative proposals? Yes, they are the alternative with Kirner and Westman. Page 42 on it. 42 of the blueberries. These are Kirner and Westman. Is that right, Your Honor? So these are not personal flotation devices. It was made clear that the only evidence before the court was testimony of Miss Ballastrey on this point. And the utility patent application, which made clear... Well, the means are not just... Why do you stick your children in these things? Because they're not to keep them afloat. I mean, these are not pretty. They're not decorative. They're to have little wings. I mean, what is the point of these things if they're not flotation devices? Just more. To be clear, these are not personal flotation devices. I can... Yes
. 42 of the blueberries. These are Kirner and Westman. Is that right, Your Honor? So these are not personal flotation devices. It was made clear that the only evidence before the court was testimony of Miss Ballastrey on this point. And the utility patent application, which made clear... Well, the means are not just... Why do you stick your children in these things? Because they're not to keep them afloat. I mean, these are not pretty. They're not decorative. They're to have little wings. I mean, what is the point of these things if they're not flotation devices? Just more. To be clear, these are not personal flotation devices. I can... Yes. How? They have a special meaning in the industry. Personal flotation devices. Something that is mandated. It's by US Coast Guard standards. By federal regulation. Why? Because it's a life-saving device. It's not a swim aid. It's not a bathing aid, which these are. It is a life-saving device. When thrown into the water in emergency situation, it saves you. And that's why the arm of this needs to be tight. This is why the whole claim construction thing is so critical to your case and to opposing counsel's case. Because if personal flotation device is limited to US Coast Guard regulation, it keeps these things out. And these things show different shapes. I now get it. That's correct, you're an honor. And the important point there is as the Judge Point, at Judge O'Connell, in District Court case, in the order, that was unrebutted. Coleman did not present any evidence that a personal flotation device need not meet US Coast Guard standards. May I answer any other questions? Thank you. I'd like to make a final point, if you don't mind
. How? They have a special meaning in the industry. Personal flotation devices. Something that is mandated. It's by US Coast Guard standards. By federal regulation. Why? Because it's a life-saving device. It's not a swim aid. It's not a bathing aid, which these are. It is a life-saving device. When thrown into the water in emergency situation, it saves you. And that's why the arm of this needs to be tight. This is why the whole claim construction thing is so critical to your case and to opposing counsel's case. Because if personal flotation device is limited to US Coast Guard regulation, it keeps these things out. And these things show different shapes. I now get it. That's correct, you're an honor. And the important point there is as the Judge Point, at Judge O'Connell, in District Court case, in the order, that was unrebutted. Coleman did not present any evidence that a personal flotation device need not meet US Coast Guard standards. May I answer any other questions? Thank you. I'd like to make a final point, if you don't mind. The problem we see with what Coleman is requesting here is that. Coleman would like for this Court to ignore the nature and intent of this device as a personal flotation device. It's not a swimming aid. It's not a buoyant aid. It's not a buoyant device. It's a personal flotation device. And so what is seeking protection, a patent protection, is on something that is mandated by federal regulations and US Coast Guard standards. But it's not seeking patent protection on the fact that it functions as a personal flotation device. Because that would be a utility patent instead of a design patent. They're just seeking a design patent. I don't understand why you're arguing for this extreme claim construction. Anyway, I assume your products don't look exactly like this. Your honor, they were seeking patent protection on a personal flotation device, not a buoyant aid, a personal flotation device. And as the Court found, they can't get a design patent on the utility of a flotation device. So they're getting a patent on the elemental parts of a personal flotation device. And it is true. But here, what was before the Court was claim construction and the key determination was functionality. Were there features that were functional that were not ornamental? And what the Court determined were that the arm bands and the attachments tapering these were functional features and not ornamental. I don't recall, but do you have certain cases that you rely on for the position that this should be limited to a personal flotation device by virtue of the fact that it's in the claim or it's title argument. Or what case law do you have to just apply the idea? Even at the moment, it admits in page seven of their reply that in order to determine functionality, we need to determine what the article manufacturer is and its intended use
. The problem we see with what Coleman is requesting here is that. Coleman would like for this Court to ignore the nature and intent of this device as a personal flotation device. It's not a swimming aid. It's not a buoyant aid. It's not a buoyant device. It's a personal flotation device. And so what is seeking protection, a patent protection, is on something that is mandated by federal regulations and US Coast Guard standards. But it's not seeking patent protection on the fact that it functions as a personal flotation device. Because that would be a utility patent instead of a design patent. They're just seeking a design patent. I don't understand why you're arguing for this extreme claim construction. Anyway, I assume your products don't look exactly like this. Your honor, they were seeking patent protection on a personal flotation device, not a buoyant aid, a personal flotation device. And as the Court found, they can't get a design patent on the utility of a flotation device. So they're getting a patent on the elemental parts of a personal flotation device. And it is true. But here, what was before the Court was claim construction and the key determination was functionality. Were there features that were functional that were not ornamental? And what the Court determined were that the arm bands and the attachments tapering these were functional features and not ornamental. I don't recall, but do you have certain cases that you rely on for the position that this should be limited to a personal flotation device by virtue of the fact that it's in the claim or it's title argument. Or what case law do you have to just apply the idea? Even at the moment, it admits in page seven of their reply that in order to determine functionality, we need to determine what the article manufacturer is and its intended use. But sure, that helps you to figure out whether something's functional or not. So it's undisputed here that the article manufacturer is personal flotation device. That is and it's undisputed again governed by US Coast Guard standards that have standards on buoyancy, secure fit and performance and which misbellisdory said these features were necessary and dictated by the function. Do you have an example of what your accused products look like? Yes. It's on our brief. It is page six of our brief. So you write your honor. There is a difference. All of your findings like this, do they all have, you know, over the shoulder straps, correct? I just, I mean, frankly, it just baffles me while you're wasting our time on this extreme claim construction. When your things don't look anything like the design pattern here and what? Your honor, we filed a motion for summary judgment on non-imprinting. And we had to. But you also, I assume, urged the district court to adopt this claim construction. Yes, I did. Even that's correct. But we filed a motion for summary judgment which did the court did not hear because Coleman requested that the case meet dismissed so they it could appeal. It's the court's decision on clean construction. So we want to be heard on non-imprinting. Under this extreme claim construction. I mean, even if you go with their claim construction, are you going to win? I believe so. I mean, yours is a vest
. But sure, that helps you to figure out whether something's functional or not. So it's undisputed here that the article manufacturer is personal flotation device. That is and it's undisputed again governed by US Coast Guard standards that have standards on buoyancy, secure fit and performance and which misbellisdory said these features were necessary and dictated by the function. Do you have an example of what your accused products look like? Yes. It's on our brief. It is page six of our brief. So you write your honor. There is a difference. All of your findings like this, do they all have, you know, over the shoulder straps, correct? I just, I mean, frankly, it just baffles me while you're wasting our time on this extreme claim construction. When your things don't look anything like the design pattern here and what? Your honor, we filed a motion for summary judgment on non-imprinting. And we had to. But you also, I assume, urged the district court to adopt this claim construction. Yes, I did. Even that's correct. But we filed a motion for summary judgment which did the court did not hear because Coleman requested that the case meet dismissed so they it could appeal. It's the court's decision on clean construction. So we want to be heard on non-imprinting. Under this extreme claim construction. I mean, even if you go with their claim construction, are you going to win? I believe so. I mean, yours is a vest. There's is a band. It's so, I mean, so completely different. The only thing that is relatively similar is the arm bands, actually, which are functional in our perspective. I get it. And that was the court's decision. Your honor, we believe that this case should not have been brought at all. And we were hoping to get the court's final determination on non-imprinting and validity. But Coleman decided to appeal this decision. We don't want to waste a court's time. But the court made a claim construction and we wanted, we believe it should be affirmed. Okay. Mr. Anna, you have a few minutes of the bottle left. I mean, even if you prevail with us, Mr. Anna, if we find the district court made some mistakes, I mean, the accused product, it doesn't look anything like yours to patent claims. What's going on here? It's a vest. And the vest is, the vest dominates the appearance of the item. I hope you're not going to turn around and argue that the overly shoulder things are functional and therefore, for have to be disregarded. You're honored. The devices are exceedingly similar
. There's is a band. It's so, I mean, so completely different. The only thing that is relatively similar is the arm bands, actually, which are functional in our perspective. I get it. And that was the court's decision. Your honor, we believe that this case should not have been brought at all. And we were hoping to get the court's final determination on non-imprinting and validity. But Coleman decided to appeal this decision. We don't want to waste a court's time. But the court made a claim construction and we wanted, we believe it should be affirmed. Okay. Mr. Anna, you have a few minutes of the bottle left. I mean, even if you prevail with us, Mr. Anna, if we find the district court made some mistakes, I mean, the accused product, it doesn't look anything like yours to patent claims. What's going on here? It's a vest. And the vest is, the vest dominates the appearance of the item. I hope you're not going to turn around and argue that the overly shoulder things are functional and therefore, for have to be disregarded. You're honored. The devices are exceedingly similar. They have all aspects of St. Except Fort, except Fort, the straps that go over the shoulders, which are just fabric. It's just the fabric, fastener. So how are you going to get that excluded, though? I mean, the design patents has to be essentially copied. It has scope and it has scope for the eyes and the environment. And it's actually what your friend is doing to us now. And so you don't look at those because those aren't part of the design. No, you're honored. That's not it. Because they don't achieve the floating. Because they're just fabric. Right. They're not part of the publication device. Right. They're just swimming. You're honored. I want to get back to the concept of what is in a name, the title. This bowler's story, as Fort Dimensions expert admits that if this was called a swim, it would not be guided by and it wouldn't be limited by US Coast Guard approval. The same thing would hold true if you said life jacket. If you used to turn life jacket, that's not a US Coast Guard regulated term
. They have all aspects of St. Except Fort, except Fort, the straps that go over the shoulders, which are just fabric. It's just the fabric, fastener. So how are you going to get that excluded, though? I mean, the design patents has to be essentially copied. It has scope and it has scope for the eyes and the environment. And it's actually what your friend is doing to us now. And so you don't look at those because those aren't part of the design. No, you're honored. That's not it. Because they don't achieve the floating. Because they're just fabric. Right. They're not part of the publication device. Right. They're just swimming. You're honored. I want to get back to the concept of what is in a name, the title. This bowler's story, as Fort Dimensions expert admits that if this was called a swim, it would not be guided by and it wouldn't be limited by US Coast Guard approval. The same thing would hold true if you said life jacket. If you used to turn life jacket, that's not a US Coast Guard regulated term. So by focusing biopically on personal floatation advice, you have incorporated all of those limitations into the claim inappropriately. That is an error of law. Judge Stoll, you had indicated about what happened in the odds on case and even though certain aspects were found to be functional, weren't they nonetheless construed? And the answer is absolutely that is true. That defends themselves, were described in detail by the court in its construction that was upheld on appeal. Judge Shees, you had talked about the corner in Westman patents. Well, Fort Dimension had another expert, an expert that was going to testify in the issue of validity. And the very references that you cited to your honor, the corner reference, the Westman reference, and even the Kelsal reference. Weft references that the district court refused to even look at or consider. Those were used by that expert to say an ordinary designer, or a sorry, a designer of ordinary skill in the art of this particular patent, would look to those items to cobble together and create the design of the claim. So if these references are relevant to determining how a nornairous skill designer in this pertinent art would come up with the design claim in the D714 patent. How is it that those same references couldn't, you couldn't change the look or feel and for the device to continue to work as intended. Okay. Thanks for those counsels.
or to mention versus the Coleman company. Please proceed. Tell me how to say your name, Anis. Good morning, Your Honours, and may it please the Court. There are two principal issues that are involved in this appeal. The first, of course, is the District Court's claim construction of the D714PAT. The second issue relates to the judge's decision to strike an ex-growth, the testimony of Peter Bressler, an industrial designer with vast experience in industrial design over four decades of experience in the field. Although the industrial design is a really, really big field, I mean, he could be deciding the inside of a power plant, right? That is possible. Right. So that's a big far cry different from designing floaties. This is actually a case I completely grasp the technology and even though it's a design bat. These two issues, Your Honours, they are not dependent upon one another. The decision is not dependent upon the other, but they both are infected by the same problem. And that is, is that the District Court, myopically focused on the title of the design patent itself, and then defined or constructed that title as it applies to commercial location devices themselves. And in course, doesn't the claim itself, though, say the ornamental design for a personal floatation device is shown and described. So the claim itself refers to the personal floatating device. Don't even have to look to the title. No. It does, Your Honours, say the personal floatation device or the ornamental design of the personal floatation device. The MPEP directs us that a design patent's title does not define its scope. That's a 1504.04. Just after that, the MPEP instructs an applicant that you are required to identify in the claim the same thing that you identified as the title. So if you are going to suggest that if the title ends up in the claim that that defines the claim, right, then doesn't that swallow the rule? It does. It swallows the rule that says the title can't define scope of the claim. Therefore simply by placing the word title in the claim, that doesn't define the scope. The scope of the design patent itself is defined by the drawings and what's depicted in the drawings. Even if we agree that the functional aspects that make this a personal floatation device have to be not considered in the claim construction, doesn't our precedent say you don't get rid of them altogether? You look at the ornamental aspects of them. That's correct, Your Honor. Perhaps the best example of that is in the recent decision of Ethicon Indo Surgery. And in that case, particularly the issue of claim construction was a bar. And the lower court there had found each and every aspect of the subject claim functional. And therefore, so in your case, to take, for example, I guess the round things that go over the arms, they're functional in a certain sense. But they also can have design aspects in the way they're shaped, you know, their size, their form, and the likes. So we have to look at the design aspects even if there is a certain functional device aspect of them as well. That's exactly what the Ethicon Indo Surgery case says. That's true. And that is simply a regurgitation of this court's precedent. Because if we didn't do that, like every bottle, which is designed patented, you would just exclude the whole bottle because it's functional and that it holds the fluid inside, right? That's correct. So one of the teachings, I guess, of Apple versus Samsung also. There was a request there to make a global rule. And the court rejected the concept of the global rule. But nonetheless, the import of construction is to identify the non-functional aspects of the design. It didn't say you'd have to identify the functional aspects by using the term accept in her client construction. That's exactly what the district court did. She didn't endeavor to identify the ornamental aspects of those things that she found had some function. And said what she did was if it had some function, it was eliminated from the scope of the claim and could not be considered. Is functionality, is that a fact question that should be given deference? It's a great question. It depends upon what it is that is being considered. And if the information considered is competent evidence for the purpose, the ultimate issue of client construction, of course, is an issue that has no deference. It's reviewed the NOVO. And if there are legal errors that were committed during client construction, then then subsequent factual findings based upon those legal errors, the court also knows those findings, no deference either. That's, that's pursuant to the pan through the decision. But under, under CAVA, does that change anything here? I don't think so, Your Honor. In fact, I think that in subsequent cases like Shire, the court has been careful to identify that you don't need to focus on those elements. That if you can define the client without resort to extrinsic material and findings relating to that are not to be considered or have no relevance to the court. The dispute here truly isn't about the proper construction of the words, personal floatation device. Personal floatation device, as we indicated, isn't a term or an element of the patent's claim claim is stated in the drawings. Personal floatation device is the title, the title of the patent itself. And personal floatation device certainly is not the use or purpose of the claim to article. That use or purpose is to provide buoyancy to the wearer while they're in the water, that is to float or act as a floatation a. The district court imposed requirements of 46 CFR, part 160, as limitations on the underlying article of manufacture and on the qualifications of any, what she called suitable or viable alternative designs. I think the root cause of the district court's error was the determination that the function of the article was personal floatation device. Well, personal floatation device is not a function. It's a thing, the article of manufacture itself. An article's function isn't determined by the title of the design patent. It's determined by what the thing does. What is it's intended use? If we agree to you that the district court air below in eliminating certain elements of the design and therefore had the wrong claim destruction, what, how should the case be treated? Well, I think, go ahead. I'm sorry. Go ahead. Yeah, I apologize for interrupting. Well, I think that the court can decide this matter on the evidence that's before it. If the court can also reverse and remain back for further proceedings consistent, is that the question asked the question is, would we remand for a new claim construction? Will we can through the claim? Would we find, you know, there's been a finding of non infringement here, right? That's true. I think that your honors could certainly reverse here and make its own decision based upon the claim construction. You were saying, you're suggesting when you say reverse here, you're saying reverse the finding of non infringement and remand? Well, if the non infringement was based solely upon the claim construction and it was once the court was stipulated, that's true. It wasn't even a finding. That's correct. Once the court made its claim construction, it was clear based upon that construction that there could be no infringement, right? So if the claim construction is wrong, the judgment would go wet, as it is predicated. Is it the only thing left to do that? The only thing we really could do is remand. I think that the courts can decide this issue on the record before. The court also would be the infringement issue? Is that the infringement issue? No, no, no. Not the infringement issue. I'm sorry. The claim construction. You could construe the claim, right? You think we could. And send the case back for further change. You can reverse the claim construction and direct a new claim construction. Yes, the idea based upon the record that's before. So for me, it's still what has to be done even if we completely agree with you on the claim construction? Yes, certainly for purposes of infringement. And further questioning of the invalidity. I'm sorry, I'm missing some of your signature questions. I want to spend a brief amount of time on the court's decision to strike the testimony of Mr. Grassel. I think that there were two issues. Again, the court might optically focus on this term personal quotation, the title, and said that that then necessarily defined a pertinent art. The court misread this court's teaching ensemble. Send-dances are very interesting case where we had a lawyer who was actually serving as a physician. But he was putting this all aside. I mean, your expert admitted he had no expertise in actually developing these kind of wearable quotation devices, right? He's an industrial design. He does a lot of other kind of things. And his only, I guess, relevant experience was he owns a boat or something. No, he's designed by what you're on. He's also designed school baguer. He's designed all kinds of buoyant materials. Sure. And so it probably wouldn't have been an abusive discretion to let that in. But why isn't an abusive discretion to exclude it when he specifically said, I have never in my professional capacity defined wearable quotation devices. He said specifically, I'm not an expert on personal quotation devices. On personal quotation devices. That's true when referring back to the title of the patent. The in-send dance, the court recognized that there was a difference between the pertinent art for defining the pertinent art as the field of tarps and covers. Although the patent there was directed to the narrower, rectangular, segmented covering systems, much more narrow. So it was the district court failed to follow the teachings of Sundance that led to the air. I will reserve the rest of my time for the results. Thank you, Ed. Tell me how to say your name, Council. Yes, Ms. McCulcock. You're in McCulcock? Yes, I'm in McCulcock. Okay, Ms. McCulcock, please proceed. I'm Council for a Pelley Sport Dimension. Thank you for your time today. I would like to respond to Mr. Anis's position with respect to the patent title that being injected into the claim construction. This is an interesting point because as Judge Stoll pointed out, personal flotation device is a term that's used in the claim description as well. And in fact, Mr. Anis claims that it should not have been injected in the claim construction, but that is the proposed claim construction that was requested by Coleman. In fact, they requested... I don't understand how this matters because even if we conclude that we can talk about whether these are personal flotation devices and exclude any kind of functional aspects, you still can't just lop off whole parts that might have both functional and design elements. I mean, that's what Ethicon says, isn't it? Are you referring to Judge Hughes on the actual claim construction itself? Yeah, the district court said don't consider the, I guess the round flotty parts altogether, right? The very technical, very technical. Right. She said you can't consider those. In the court's claim construction, the court identified functional and non-functional features that is consistent with odds on. Yes, but... Are you saying that there is no design element at all to the ARM fans? The court found that they weren't in the form. The court found that the ARM fans were non- ornamental, that they were functional and dictated by function. Why the ARM fans, these round things, are... See, this is the error in determining that a certain structure has function. Ethicon says, even if it has function, there may still be ornamental aspects to it, and that you have to be able to consider that. And the best example of that is the picture. I mean, you could have any kind of number of designs for these ARM fans. They don't have to be round cylinders. I've seen some where there are like four squares put together. They could be longer, they could be shorter, they can do all kinds of straps, although that might be functional. But those are ornamental aspects, and you can't just exclude the entire structure because you conclude that it has some functions. And that's what she did, isn't it? You're on it. Let me explain that point. Those arguments were made before Giacomo, and what Giacomo decided was that you needed the ARM fans to shape the way it was, which was tapered and round for it to function as a personal flotation device. But that just looks wrong. There was no evidence contradicting it. There was no evidence contradicting it. There was no evidence contradicting it. But the problem is, she's adding in things that are in the design pattern. The design pattern should be, I think we said in Egyptian goddess, mostly, you should just look at the picture. And there's nothing in the picture that says this is completely functional. What the judge did was, in the district court, did was look at the article manufacturer. In this case, it was a personal flotation device. There's no dispute about that. And for a personal flotation device to function as intended, it has certain requirements. Mandatory safety requirements. Did you say that Apple versus Samsung says that you can't just eliminate whole elements? I don't believe Apple versus Samsung says that. In fact, I think Apple versus Samsung says that the Richardson case does not say that it does not state a rule that a district court has to eliminate entire elements from the Queen's scope. I think that's what Apple is saying. In Oddson, you said that this case, a similar to Oddson, or what the district court here was consistent with Oddson. But in Oddson, what they said is that the football is functional, I guess, and the fin is functional. You got to read those have functional aspects. But they didn't just completely eliminate all the any particular functional elements of the rocket football. And instead, this court said, you got to look at the overall design. You don't just eliminate parts. And so here, if you were following Oddson, you wouldn't eliminate the arm bands. Instead, you would look at the arm bands in combination with the torso portion in combination with the second arm band. And that's exactly what the court did in this case. No, I think the court eliminated the arm bands. You mean in the claim construction itself? So if you read the claim construction, the court said ornamental design of a personal flotation device, except the following features are functional. So the court looked at those features in combination of the overall design. And that's what the court did in Ph.G. case in Oddson. And that is a typical way that the court's in considering functionality, look at how, whether something is functional. They look at the features and they look at it in combination of the overall impression of the design. But even after they determined that something has functional aspects, they just lock off that element saying this is functional. I don't know of any cases that have done that other than what the district court did here. Actually, there are some cases where functional aspects were not included at all. So for instance, in the Oddson case, if you look at the description of the claim construction, it's very detailed. And what the court was trying to do there was differentiate between a tossing ball and a ball that tosses like a football, but flies faster. That was a distinction the court made in its claim construction. It was a very detailed claim construction to ensure that the court captured the ornamental aspect of it and the functional aspect. But it also said it looked at the overall rocket like appearance of the design. It didn't eliminate the fan or the football. It didn't eliminate, but emphasize what the patents go through. I wanted that of inappropriate to do here. I think that... Instead of eliminating the armbands, talking about the overall design of the whole design of the PFD. I think the court was correct in determining that the armbands itself was functional. There was no ornamental aspect of it. And the reason is, and Judge Hughes might be right, there might be other designs out there that could have been used. But there was no such evidence before the court. The only alternative designs before the court... Why does the evidence... I mean, the evidence is they made a particular design choice in the picture they showed. And unless it's purely functional and it has to be shaped that way, and it only has a functional result than the rest of it's a design. That's absolutely correct, Your Honor. That was the only way that the armbands fit. But that's not true. I mean, just... I mean, it's not in the record, but we all know that the armband doesn't have to be in this specific circular shape. In the specific size it is to be functional as a flotation device. The size was not issue here, but the shape was. And the only evidence before the court, testimony of the inventor, testimony of the owner. The only expert that testified as well as the utility patent application stated that the armbands had to be shaped this way in a way that was tapered and round. And the reason is this. When... This is soon. You have stack of documents. And when you fold the stack of documents in a circle, it becomes tapered. That's the way that these armbands are manufactured. Now, in your separate... The evidence says it has to be round and tapered. Yes. Has to be, in order to function. Yes. My goodness. I've had my children in the pool with these little ones with wings on them. They actually have wings. My daughter loves them. They're not round and tapered. Yes. I must be a terrible mommy because it must not be functioning properly to keep her afloat. Your Honor, I'm aware of those as well. And they are not personal flotation devices. And if you look at my... But you can't be possibly saying that the only way it's a personal flotation device that actually works is that it is this round circular too. It has to fit securely. There are many requirements. Safety requirements. What about the square? What about the picture? And the picture. And the flow. May I explain? What about the pictures on page 42 of the blueberry, for example? Just to give some context. Are those alternative proposals? Yes, they are the alternative with Kirner and Westman. Page 42 on it. 42 of the blueberries. These are Kirner and Westman. Is that right, Your Honor? So these are not personal flotation devices. It was made clear that the only evidence before the court was testimony of Miss Ballastrey on this point. And the utility patent application, which made clear... Well, the means are not just... Why do you stick your children in these things? Because they're not to keep them afloat. I mean, these are not pretty. They're not decorative. They're to have little wings. I mean, what is the point of these things if they're not flotation devices? Just more. To be clear, these are not personal flotation devices. I can... Yes. How? They have a special meaning in the industry. Personal flotation devices. Something that is mandated. It's by US Coast Guard standards. By federal regulation. Why? Because it's a life-saving device. It's not a swim aid. It's not a bathing aid, which these are. It is a life-saving device. When thrown into the water in emergency situation, it saves you. And that's why the arm of this needs to be tight. This is why the whole claim construction thing is so critical to your case and to opposing counsel's case. Because if personal flotation device is limited to US Coast Guard regulation, it keeps these things out. And these things show different shapes. I now get it. That's correct, you're an honor. And the important point there is as the Judge Point, at Judge O'Connell, in District Court case, in the order, that was unrebutted. Coleman did not present any evidence that a personal flotation device need not meet US Coast Guard standards. May I answer any other questions? Thank you. I'd like to make a final point, if you don't mind. The problem we see with what Coleman is requesting here is that. Coleman would like for this Court to ignore the nature and intent of this device as a personal flotation device. It's not a swimming aid. It's not a buoyant aid. It's not a buoyant device. It's a personal flotation device. And so what is seeking protection, a patent protection, is on something that is mandated by federal regulations and US Coast Guard standards. But it's not seeking patent protection on the fact that it functions as a personal flotation device. Because that would be a utility patent instead of a design patent. They're just seeking a design patent. I don't understand why you're arguing for this extreme claim construction. Anyway, I assume your products don't look exactly like this. Your honor, they were seeking patent protection on a personal flotation device, not a buoyant aid, a personal flotation device. And as the Court found, they can't get a design patent on the utility of a flotation device. So they're getting a patent on the elemental parts of a personal flotation device. And it is true. But here, what was before the Court was claim construction and the key determination was functionality. Were there features that were functional that were not ornamental? And what the Court determined were that the arm bands and the attachments tapering these were functional features and not ornamental. I don't recall, but do you have certain cases that you rely on for the position that this should be limited to a personal flotation device by virtue of the fact that it's in the claim or it's title argument. Or what case law do you have to just apply the idea? Even at the moment, it admits in page seven of their reply that in order to determine functionality, we need to determine what the article manufacturer is and its intended use. But sure, that helps you to figure out whether something's functional or not. So it's undisputed here that the article manufacturer is personal flotation device. That is and it's undisputed again governed by US Coast Guard standards that have standards on buoyancy, secure fit and performance and which misbellisdory said these features were necessary and dictated by the function. Do you have an example of what your accused products look like? Yes. It's on our brief. It is page six of our brief. So you write your honor. There is a difference. All of your findings like this, do they all have, you know, over the shoulder straps, correct? I just, I mean, frankly, it just baffles me while you're wasting our time on this extreme claim construction. When your things don't look anything like the design pattern here and what? Your honor, we filed a motion for summary judgment on non-imprinting. And we had to. But you also, I assume, urged the district court to adopt this claim construction. Yes, I did. Even that's correct. But we filed a motion for summary judgment which did the court did not hear because Coleman requested that the case meet dismissed so they it could appeal. It's the court's decision on clean construction. So we want to be heard on non-imprinting. Under this extreme claim construction. I mean, even if you go with their claim construction, are you going to win? I believe so. I mean, yours is a vest. There's is a band. It's so, I mean, so completely different. The only thing that is relatively similar is the arm bands, actually, which are functional in our perspective. I get it. And that was the court's decision. Your honor, we believe that this case should not have been brought at all. And we were hoping to get the court's final determination on non-imprinting and validity. But Coleman decided to appeal this decision. We don't want to waste a court's time. But the court made a claim construction and we wanted, we believe it should be affirmed. Okay. Mr. Anna, you have a few minutes of the bottle left. I mean, even if you prevail with us, Mr. Anna, if we find the district court made some mistakes, I mean, the accused product, it doesn't look anything like yours to patent claims. What's going on here? It's a vest. And the vest is, the vest dominates the appearance of the item. I hope you're not going to turn around and argue that the overly shoulder things are functional and therefore, for have to be disregarded. You're honored. The devices are exceedingly similar. They have all aspects of St. Except Fort, except Fort, the straps that go over the shoulders, which are just fabric. It's just the fabric, fastener. So how are you going to get that excluded, though? I mean, the design patents has to be essentially copied. It has scope and it has scope for the eyes and the environment. And it's actually what your friend is doing to us now. And so you don't look at those because those aren't part of the design. No, you're honored. That's not it. Because they don't achieve the floating. Because they're just fabric. Right. They're not part of the publication device. Right. They're just swimming. You're honored. I want to get back to the concept of what is in a name, the title. This bowler's story, as Fort Dimensions expert admits that if this was called a swim, it would not be guided by and it wouldn't be limited by US Coast Guard approval. The same thing would hold true if you said life jacket. If you used to turn life jacket, that's not a US Coast Guard regulated term. So by focusing biopically on personal floatation advice, you have incorporated all of those limitations into the claim inappropriately. That is an error of law. Judge Stoll, you had indicated about what happened in the odds on case and even though certain aspects were found to be functional, weren't they nonetheless construed? And the answer is absolutely that is true. That defends themselves, were described in detail by the court in its construction that was upheld on appeal. Judge Shees, you had talked about the corner in Westman patents. Well, Fort Dimension had another expert, an expert that was going to testify in the issue of validity. And the very references that you cited to your honor, the corner reference, the Westman reference, and even the Kelsal reference. Weft references that the district court refused to even look at or consider. Those were used by that expert to say an ordinary designer, or a sorry, a designer of ordinary skill in the art of this particular patent, would look to those items to cobble together and create the design of the claim. So if these references are relevant to determining how a nornairous skill designer in this pertinent art would come up with the design claim in the D714 patent. How is it that those same references couldn't, you couldn't change the look or feel and for the device to continue to work as intended. Okay. Thanks for those counsels