Legal Case Summary

. Until they're countermandant, right? So at this remainder testified, I'm looking at the third is the deposition or the declaration that came in on nine. I interpreted the claim terms I believe were necessary to interpret. Clearly you'd have a means plus function patent. So that means he's saying I did that. I performed it in front of an analysis and stewed them. He goes on and he's telling you what he did. You had the opportunity to depose, Mr. Mead. No, you're on a request to do it, but we did not. But you're not telling us on appeal that that was error. You got snuck a little bit because you said we'd like to depose Mr. Mayor and Mr. Reckleach if you're going to grant all of these supplemental papers coming into the record. If we're not going to bring him in, then we don't want to depose him. And what the executive court judges, he kept out, roughly just declaration and good exact declaration and cementing, but he led in the third declaration. Most of the third. Most of the parts that hurt should be left. And you didn't be persistent

. So from my perspective, I mean, if you put Maynard on the stand, you could have asked him a whole lot of questions about what he did, right? And he'd be on the road. You would find out whether he had said what he swore to you. The further he's pretty serious stuff. But it's not necessary in this case because it was the burden at that point in time when proceedings for Mr. for the plaintiff to come forth and show that they had done the appropriate inquire. All he says is I'd find looked at the claims. We don't know what he did, whether it was a means puzzle. Well, we're low in the record, for example, that Mr. Reckleys very shortly after Mr. Maynard had done his research, writing letters to your client, which he's referring to the means for determining this and the means for determining that. So that would lead certainly, that's evidence to show that somebody had recognized that this was a means plus function pattern. I'm looking on something that's got letters, the letters that were sent by Mr. Reckleys to the president of Polar, they're at A717 here in the records, you're saying. We think that in your device there are the means corresponding to the structure you got of your. That was a response to Polar's after the complaint was, was Polar's letter after the complaint was filed. And with respect to the technical. This is what he's asking, this is what he's asking for a license, this is a well before the complaints filed. But Mr

. Ortsin to A717, Mr. Reckleys is writing, saying, the your products, you know, got these problems. The heart rate mounting feature correspondence to the means for providing data indicative of the cardiac function of the user. That got somebody who were a Howard, he had to think this was a means plus function plan. Could have written that letter otherwise. Mr. He sent two of those, if there's one, I was looking at the following. Mr. Ortsin did not say that when his declaration under purge or in the panel is purge, he didn't say I looked at these. I found that I think this is the claims I believe were necessary. Right? Let's assume for a moment that somebody recognized that these claims were means plus function. I find that part to believe that they knew what he did. They're just two simple means. There is no evidence that there was a construction that says, okay, what is the first function? What is the second function? What is the structure in the car's response to that first function in that second? Well, my first one is you had an opportunity to find that out. You could put Mr. Mayor to understand and really let the fire under his seat because he's undergrowth. We had the opportunity and asked for it. And you were denied and you didn't complain

. You didn't say to the judge, hey, wait a second, you can't let in the third declaration and not let me depose the ballot. That doesn't cure the deficiencies of the record of the record you are. Or, nor does it cure the deficiencies of Mr. Mayor's declaration, which should have said, I did this. There is no evidence. Yes, there are certain standards. The financial evidence is somebody recognized that these work means destruction. We'll take that for granted for long. But again, there is no evidence of saying what is the black litter law, what you do when you have means plus function claims. You interpret it as what's the function, what structure performs that function. Moreover, in an infringement analysis, is there a car response between the structure in the pattern? Look, let's also look at what's happened here that the chief judge certainly alluded to. We have the judge actually ordering Howard Simon to produce the two memorandum. How they offered to give them up, because I read the record, the judge said, I order you to give them to me. The two are called the two secret memorandum. The two secret memorandum. The judge in his opinion said, I reviewed the two memorandum and these two memorandum support what Mr. Mayor said in his declarations. I think that's a fair character position, but I think he said there was nothing in the secret memorandum

. The secret memorandum, that would change his opinions. Well, he's heard, I mean, the judge knows what the law is, right? The judge, you know, the black litter law that we have in these plus function claims. I mean, does the United States have the evidence of showing that that was applied here, you know? I understand what you're saying, but the simple fact is there is no evidence of the claim construction and moreover, there's no evidence of a pre-infringement filing analysis for means of a function. That's important. I refer you to, for example, the patent claims in patent figures, a 17. I don't read your brief to be saying that the judge aired as a matter of law in looking at the two memorandums. The judge is free to look at the memos. Wait, Mr. Smith, you have to go very slowly. The judge was free to look at the two privilege memorandums. Yes, sir. So that wasn't a violation of law for him to do that. And the judge once he looked at the two memorandums, it was the judge entitled to rely on something in the memorandum to support his decision. Not without disclosing those memorandums to the law, but that does memorandum. This court cannot reasonably conclude that the claim construction was appropriately performed prior to filing suit. That's what the judge relied on below. Unless we take the view that Mr. Mayer, who at the risk of going to jail for surgery in his first, second, and third declaration, said I did what was necessary

. And I didn't say by what I was espousing as a theory of the case is the burden then shifted to you to deposing. The two things, one, he didn't say I did what was necessary, said I did a claim construction, I did analysis. He didn't say I applied, I found the first function, I found the second function, I found the structure. The structure is important. If you take a look at the patent, there are several pages of figures of the important structure here. None of which is discussed anywhere in the record. I see this money, I agree. Time? You're ending your rebuttal time. Yes, you'd like to say that you may. Unless there's a question I'd like to give you, do you like the answer? Thank you, we'll preserve your time, Mr. Moran. Mr. Rupplitch. May I please the court? Judge Carter's order denied role 11 sanctions should be affirmed. He did not abuse his discretion. His findings that Howard's claim construction was not frivolous is not clearly erroneous. And there's no clear error in his finding that Howard performed a pre-filing of a investigation. It's sufficient pre-filing

. Is the judge rely at all on the two previous documents? What the judge did was... He relied on them as both a check and to identify that there was nothing inconsistent in those documents. What was the check? What do you mean by that? What he said was that the major declarations were a faithful summary, this was on page A5, a faithful summary of what is in those memorandum. So he went back and he used it as a check to the veracity of what's in the document. When the affidavit said I conducted the claim construction I thought was necessary, we all know it's a means of function claim, all the lawyers know what the chart's supposed to look like. The judge is saying I look at the secret documents and they confirm the generality that was in the original declaration, right? Correct. Okay, so now my question is how do we know that the judge is right? Because we can't see the two previous documents. See what's happened is that the judge has relied on non-evident something that's not a record. But the judge was... The judge was finding for amply supported by the evidence that is a record, because if we look at the evidence that was in the original... The judge is told by not deposing of the manner. But what I want to stick with is that there's a star chamber element to this case

. We have a district court judge who, by your admission, is relying on privileged documents that are not a record. They're not a record here. For all we know, the two memorandum deals solely with the client meeting and with contingency-thing analysis. Because that's the way the mayor described it. So how do we know? We heard me, for example, sustaining a district court decision. When the district court judge said in making my decision, I'm relying on what my wife told me this morning. When I say the court relied on it, the court's ultimate decision is amply supported by the other evidence on which the district court relied. So when I said that this is an order that's on which the district court relied has to be the three declarations, right? Correct. That's nothing else in the record. Correct. And what do those declarations say? We know that Mr. Maynard is a registered patent attorney. We know he studied the patents. We know he studied the file history. We know he conducted legal research on claim construction. We know that he construed the asserted claims. And there's no dispute. The only two limitations of claim one are in means plus function form

. We know he drafted a first memorandum in which he said he included a preliminary claim construction. And we know he drafted a second memorandum in which he amplified that claim construction, including citations to case law and the patent specification. Mr. Recleach, we probably wouldn't be here if there was a claim chart somewhere that broke the claim down element by element, identified the structure and so forth, and then pointed to where that was found in the accused devices. Is there a reason that wasn't there? Two answers to that. First of all, a claim chart is that this court's made clear that a claim chart necessarily is not required. But second, remember that these memos were written a year before the complaint was filed. And they don't have, you're not going to find in these memos a detailed claim chart for all the different defendants accused. I'm going to start telling us about what's in those declarations that you're going to find that you've waived a grip on. I'm not very careful, Mr. Recleach. I believe you know I understand that, you know, but what Mr. Maynard said was that he included in there a claim construction and he included citations to the record and he included citations to the case law, which there is no dispute in this case that how is claim construction was wrong? There is no dispute. We were here before, not this entire panel, but some of the judges on this panel. How are we assumed early on that the patent claims that were asserted covered both embodiments, including the simplified exercise embodiment? How are we asserted in this case all the way up until the judge decided the summary judgment order and the claim construction and even on appeal to this court, we spent nine pages of our brief arguing that the claim construction issue that the word patient included normal, healthy individuals. It's only for Mr. Recleach. Mr

. Recleach, let me come back to the privilege issue. You rely very heavily on your brief on the 1983 Advisory Committee note to rule 11 that says, you know, we don't, we don't want rule 11 to be an occasion for breaching the word product privilege. You're familiar with the 1993 Advisory Committee note? Yes, you're right, but we try to be careful. Let me refresh your recollection. In 1993, after several years of experience with rule 11 motions, the Advisory Committee noted that good practices for a district court to defer ruling on a rule 11 motion until it cases all over, which is what happened here, because it says it would reduce the disruption creed. If a disclosure of attorney claim to medication is needed to determine whether a violation occurred. So by 1993, the Advisory Committee recognizes that there may be cases in which a disclosure of attorney claim privilege is necessary to determine whether a violation occurred. And because it's deferred to after the trial is over, the fact that you had some trial strategy in the memos that you were trying to protect, giving that up after the trial isn't so painful, right? And you're all a balanced scale trying to find the right results. Well, there's a lot of other things in the memo that in memos of that nature, there are a lot of other things that the same... Well, when the rubber hit the road and Maynard had to make certain, it's really accurate, that is to say in the third declaration, he described that second memo not as a claim construction, or as a, you know, in branch analysis, that was a contingency fee analysis. So presumably your firms make up about you were very charged and how you were doing, it's been embedded in that document, and I understand why you don't want that to be disclosed. But here we have a situation where you've agreed that the district court relied on stuff that's not in evidence, we haven't seen it. And once again, I'll say this again, the district court only relied on it to the extent that he was checking the veracity of what Mr. Maynard testified, he has an independent basis for his own. I'm assuming that it meant he didn't have it. I mean, what would happen if we were to hold that it was against a violation of law for the judge to rely on evidence not in record? That's a pretty simple proposition, you can't rely on what your wife told you. And to say the judge got to go back and look at this case clean, and decide whether the three declarations that are in record are sufficient. And that's what he did because we do that, he said they're sufficient because I have looked at the secret documents. He never said that, what he said is I've looked at the secret documents and they are a faithful summary of what Mr. Maynard testified, and I don't see anything here to change my findings. And it didn't change the fact that Mr. Maynard testified in those declarations about all of the things that he did. And it didn't change the fact that the basic dispute between Polar and Dr. Tarrani was not over whether a means plus function analysis was ever done, but it was which means plus function analysis was correct. And that turned on the issue of the construction of patient, which wasn't decided until two years after the complaint was decided, and once the court determined that patient doesn't include normal healthy individuals, the court determined that Dr. Tarrani dedicated to the public, her simplified embodiment, the court determined that therefore the means plus function limitation required the measured stroke volume. And there was no dispute between the parties. There was never any dispute that these devices didn't measure the patient's stroke volume. So this was as the parties told Judge Carter very very beginning of this case, this is the client construction case. And so the parties disagreed about the claim construction, but those claim constructions, the competing claim constructions were presented to the District Court and they were presented to the Federal Circuit. And yes, the District Court determined that how we was wrong. And Mr. Maynard talked about all the steps that he went through and the District Court's determination was that the finding was that the patent specification gave how we the reasonable expectation that a court would agree with its construction. And that finding is not clearly erroneous

. And to say the judge got to go back and look at this case clean, and decide whether the three declarations that are in record are sufficient. And that's what he did because we do that, he said they're sufficient because I have looked at the secret documents. He never said that, what he said is I've looked at the secret documents and they are a faithful summary of what Mr. Maynard testified, and I don't see anything here to change my findings. And it didn't change the fact that Mr. Maynard testified in those declarations about all of the things that he did. And it didn't change the fact that the basic dispute between Polar and Dr. Tarrani was not over whether a means plus function analysis was ever done, but it was which means plus function analysis was correct. And that turned on the issue of the construction of patient, which wasn't decided until two years after the complaint was decided, and once the court determined that patient doesn't include normal healthy individuals, the court determined that Dr. Tarrani dedicated to the public, her simplified embodiment, the court determined that therefore the means plus function limitation required the measured stroke volume. And there was no dispute between the parties. There was never any dispute that these devices didn't measure the patient's stroke volume. So this was as the parties told Judge Carter very very beginning of this case, this is the client construction case. And so the parties disagreed about the claim construction, but those claim constructions, the competing claim constructions were presented to the District Court and they were presented to the Federal Circuit. And yes, the District Court determined that how we was wrong. And Mr. Maynard talked about all the steps that he went through and the District Court's determination was that the finding was that the patent specification gave how we the reasonable expectation that a court would agree with its construction. And that finding is not clearly erroneous. The District Court's determination was that how we claim construction was not of a frivolous variety and was not so frivolous as the work that you said. Well, your discounting is that and we'll need to belabor it, but anybody reading the District Court's opinion is going to realize the District Court was very troubled by what had happened here. They were very troubled with your client in particular, they come real close to saying he was a bad person. He did. Well, the sheet pardon me. But the court was clearly difficult having difficult problems. And if one were to view the court finding the crutch or something that helped the court over this hurdle in a very, very difficult case for that was the two privileged documents. I look at them and they give me comfort that these generalities that that Mr. Maynard has stated and is that they're sure. Right. So how can we be sure that the District Court would reach the same decision on the real 11 issue if the previous documents had not been given and not been given the judge? Because what the District Court statements were. I hate to keep returning to this, but the District Court statements were. Then you be specific. Yes, the District Court said about those that they were a faithful summary and that's on page A5. And then he said that the memorandid didn't supply any reason to change his findings and that's a page 810. So it's that use that really made them largely irrelevant. Mr. Maynard was in front of this District Court

. The District Court's determination was that how we claim construction was not of a frivolous variety and was not so frivolous as the work that you said. Well, your discounting is that and we'll need to belabor it, but anybody reading the District Court's opinion is going to realize the District Court was very troubled by what had happened here. They were very troubled with your client in particular, they come real close to saying he was a bad person. He did. Well, the sheet pardon me. But the court was clearly difficult having difficult problems. And if one were to view the court finding the crutch or something that helped the court over this hurdle in a very, very difficult case for that was the two privileged documents. I look at them and they give me comfort that these generalities that that Mr. Maynard has stated and is that they're sure. Right. So how can we be sure that the District Court would reach the same decision on the real 11 issue if the previous documents had not been given and not been given the judge? Because what the District Court statements were. I hate to keep returning to this, but the District Court statements were. Then you be specific. Yes, the District Court said about those that they were a faithful summary and that's on page A5. And then he said that the memorandid didn't supply any reason to change his findings and that's a page 810. So it's that use that really made them largely irrelevant. Mr. Maynard was in front of this District Court. So you know reason to change his findings. That means that he thinks that there's something in the detailed stuff in the memorandum that actually counters what your opposition has been saying when he says, you know, I have no reason to change my mind. And the whole challenge, you know, in front of the judge was there's no specificity here. That was the same argument your your average are making here. So when the judge says, well, I got no reason to change my mind. There must be specificity in the document. Well, they understand that Polar's argument shifted throughout time. It started out. They said that how we conducted no free filing investigation. That was the basis for their original motion. And it wasn't until much later in the day, probably their fourth brief when they said, oh, how we didn't, didn't you. So that means plus function analysis. Well, that is frankly refuted by the evidence that's before the court completely separate from the November memorandum. And that is that Mr. Maynard is a registered patent attorney. He had the patents. He had the prosecution history. He researched the case law

. So you know reason to change his findings. That means that he thinks that there's something in the detailed stuff in the memorandum that actually counters what your opposition has been saying when he says, you know, I have no reason to change my mind. And the whole challenge, you know, in front of the judge was there's no specificity here. That was the same argument your your average are making here. So when the judge says, well, I got no reason to change my mind. There must be specificity in the document. Well, they understand that Polar's argument shifted throughout time. It started out. They said that how we conducted no free filing investigation. That was the basis for their original motion. And it wasn't until much later in the day, probably their fourth brief when they said, oh, how we didn't, didn't you. So that means plus function analysis. Well, that is frankly refuted by the evidence that's before the court completely separate from the November memorandum. And that is that Mr. Maynard is a registered patent attorney. He had the patents. He had the prosecution history. He researched the case law. He did several iterations of analysis of that. And then how represented in those August and September letters before the complaint was ever filed, a letter saying, look, here's what corresponds to these limitations and presented a means plus function argument for two years. For two years in the case that was faithful all the way through in consistent. And then at the end of the case, two years into a judge Carter rule that that was wrong. We brought it up on appeal. We argued for nine pages of our call of brief. And this court said, yes, judge Carter's correct you how we were wrong. But because we were wrong judge Carter recognized doesn't make our claim construction. Ferviless. Nor did it make the infringement analysis that was performed. Ferviless. And he had some concerns about the fact that that that we only looked at two devices. We only looked at all the user manuals. We only looked at the article about how these devices work. We only looked at the patents that were marked on the products and how these work. And he was concerned about extrapolating that infringement analysis from just the two products to the 14. But there was no question there's never been a dispute that every one of those accused products use the own cow feature. It's in Polar's literature that's available on the website

. He did several iterations of analysis of that. And then how represented in those August and September letters before the complaint was ever filed, a letter saying, look, here's what corresponds to these limitations and presented a means plus function argument for two years. For two years in the case that was faithful all the way through in consistent. And then at the end of the case, two years into a judge Carter rule that that was wrong. We brought it up on appeal. We argued for nine pages of our call of brief. And this court said, yes, judge Carter's correct you how we were wrong. But because we were wrong judge Carter recognized doesn't make our claim construction. Ferviless. Nor did it make the infringement analysis that was performed. Ferviless. And he had some concerns about the fact that that that we only looked at two devices. We only looked at all the user manuals. We only looked at the article about how these devices work. We only looked at the patents that were marked on the products and how these work. And he was concerned about extrapolating that infringement analysis from just the two products to the 14. But there was no question there's never been a dispute that every one of those accused products use the own cow feature. It's in Polar's literature that's available on the website. It's in the comparison chart that we identified. So there's no dispute. One of the interesting problems in this whole setting is that we don't know whether there have been instances in the past like this where after the trial is over district court judges ordered to disclose break the attorney's claim. We should determine whether or not a violation had occurred. Are you aware of any such incidents? We were not able to find any of your honor but let me caution you. It's not the attorney client privilege. It's a word project. The issue was, I see my time to expire, I just want to explain that the issue was not. Final thought Mr. Rickledge. Final thought. The final thought was the issue wasn't details of what was done and what was not. The issue wasn't details of how the product work. The dispute between the party from the very beginning all the way to the end of the case was on competing claim constructions. As it turns out, how it was wrong and that claim construction. But the district court didn't abuse its discretion finding that that claim construction was frivolous. Thank you. Thank you Mr

. It's in the comparison chart that we identified. So there's no dispute. One of the interesting problems in this whole setting is that we don't know whether there have been instances in the past like this where after the trial is over district court judges ordered to disclose break the attorney's claim. We should determine whether or not a violation had occurred. Are you aware of any such incidents? We were not able to find any of your honor but let me caution you. It's not the attorney client privilege. It's a word project. The issue was, I see my time to expire, I just want to explain that the issue was not. Final thought Mr. Rickledge. Final thought. The final thought was the issue wasn't details of what was done and what was not. The issue wasn't details of how the product work. The dispute between the party from the very beginning all the way to the end of the case was on competing claim constructions. As it turns out, how it was wrong and that claim construction. But the district court didn't abuse its discretion finding that that claim construction was frivolous. Thank you. Thank you Mr. Rickledge. Mr. Moran you have four and a half minutes. First I'd like to strunously dispute Mr. Rickledge is a characterization that it was purely a claim construction issue below. But Mr. Moran we do have four. The dispute before the court allowed was more than just a claim construction. It was what structure is in our devices, polar devices that cars on to the structure shown in the pack. And that goes to the crux of what's not here today and that is despite what we said here, the best the district court can do is guess at what is there. If this court had found that a patient could encompass a healthy person, would we be here today? Yes, because we still do not know despite what's been said. We probably will be here in the other direction because what's missing here is the evidence of other than guess. Mr. Moran. Mr. Moran. Yes, Your Honor. Thank you

. Rickledge. Mr. Moran you have four and a half minutes. First I'd like to strunously dispute Mr. Rickledge is a characterization that it was purely a claim construction issue below. But Mr. Moran we do have four. The dispute before the court allowed was more than just a claim construction. It was what structure is in our devices, polar devices that cars on to the structure shown in the pack. And that goes to the crux of what's not here today and that is despite what we said here, the best the district court can do is guess at what is there. If this court had found that a patient could encompass a healthy person, would we be here today? Yes, because we still do not know despite what's been said. We probably will be here in the other direction because what's missing here is the evidence of other than guess. Mr. Moran. Mr. Moran. Yes, Your Honor. Thank you. The trouble I have is that claim constructions a very difficult process with a multitude of factors that influence it. You're absolutely right. And so with that kind of a complex legal matter to be determined, it's difficult isn't it to merely based on an outcome of claim construction charge someone with frivolousness. That's not what occurred in this case, Your Honor. The rule of that in the notions were put in before the summary judgment was even ruled upon. So it was not waiting till after the theory from the get go was that only an exercise of frivolity could have read the claims on a healthy person. On a claim construction issue. And also on the infringement issue only an exercise of frivolity. I'm just supporting what I make it she judges saying is from the get go when you said, well, how many things this claim reads on a healthy person. That is frivolous. And oh, boy, we're going to we got it. We're going to get a real one. No, that's not the only thing you're honored. It did not resolve only on that issue. That's the only one that made it to the judge ruled on in the summary judgment. There was a whole second part of the case is a way to make it. The structure that's used in this device is nothing like the structure that's shown in the specification for these other other functions. Well, and that would be a question of claim construction too, wouldn't it? Because structures also encompasses equivalence of that structure all within the claim construction function

. The trouble I have is that claim constructions a very difficult process with a multitude of factors that influence it. You're absolutely right. And so with that kind of a complex legal matter to be determined, it's difficult isn't it to merely based on an outcome of claim construction charge someone with frivolousness. That's not what occurred in this case, Your Honor. The rule of that in the notions were put in before the summary judgment was even ruled upon. So it was not waiting till after the theory from the get go was that only an exercise of frivolity could have read the claims on a healthy person. On a claim construction issue. And also on the infringement issue only an exercise of frivolity. I'm just supporting what I make it she judges saying is from the get go when you said, well, how many things this claim reads on a healthy person. That is frivolous. And oh, boy, we're going to we got it. We're going to get a real one. No, that's not the only thing you're honored. It did not resolve only on that issue. That's the only one that made it to the judge ruled on in the summary judgment. There was a whole second part of the case is a way to make it. The structure that's used in this device is nothing like the structure that's shown in the specification for these other other functions. Well, and that would be a question of claim construction too, wouldn't it? Because structures also encompasses equivalence of that structure all within the claim construction function. And so once again, we're into the complexity of the legal question that could have easily gone the other way. And then we have not. I want you to do Mr. Moran is listen to the end of my question and then respond. So let's start over again. Isn't this just a matter of claim construction doesn't that make your burden here very difficult? No, it is not matter of just claim construction. There's two pieces to it. There is the claim construction. What is it? It's not before the court today. The other half is once you have that claim construction complex as it is is your honor noting. Applying that claim construction to the devices. And once again, there's no evidence of whether or not that was actually performed in this case. In fact, with respect to at least one device, it wasn't performed at all. It simply looked at the feature as Mr. Ruppridge said earlier. Show them marking chart for the S 810i product. Mr. May or Mr

. And so once again, we're into the complexity of the legal question that could have easily gone the other way. And then we have not. I want you to do Mr. Moran is listen to the end of my question and then respond. So let's start over again. Isn't this just a matter of claim construction doesn't that make your burden here very difficult? No, it is not matter of just claim construction. There's two pieces to it. There is the claim construction. What is it? It's not before the court today. The other half is once you have that claim construction complex as it is is your honor noting. Applying that claim construction to the devices. And once again, there's no evidence of whether or not that was actually performed in this case. In fact, with respect to at least one device, it wasn't performed at all. It simply looked at the feature as Mr. Ruppridge said earlier. Show them marking chart for the S 810i product. Mr. May or Mr. May or look only at the marking chart which on its face said we have features. Features are not the structure that's incorporated into the claims by virtue of one 12 paragraph six. And there's no evidence that Mr. May or actually did one 12 paragraph six investigation. So is that Mr. Kraks of your argument here after all the unavailability to us on appeal of those two work product documents? In part of your honor, it's our position that you cannot affirm without those documents which you could reverse without those on the basis of the non-infringement analysis or the infringement analysis not being made. I see that my time is up. There's no further questions. Thank you, Mr. Moran.

Mr. Moran, you may proceed. Please record. I'm John Moran here on behalf of the former electoral and Finnish parent and the former ink of the US subsidiary. This morning the important critical issue is what is not before the court and what is not before the court is evidence of the rudimentary and basic inquiry of construing the claims and applying the claims to the accused product prior to bringing suit. That evidence is lacking in at least four separate areas. That is evidence of a means plus function claim analysis, evidence of a means plus function in fringe and analysis, evidence of investigation into whether the accused products used heart rate at rest, the parameter that the complaint and amended complaint post said was required with the products. And furthermore, what's missing from the court or the memoranda that Polar was denied access to before the bill of district court? Do you think that trial court that witnessed all of these proceedings and was well first in the activities of both parties and even saw records which aren't before this court? Do you think it abused its discretion? Yes, Your Honor. In two ways. That's a pretty strong thing to say that someone abuses their discretion. How did that happen here? In both the lack of evidence and the legal standards. Well, but the district judge did quite a little bit in telling us how they investigated the products and they construed the patent. At one point they even narrowed their charges against your client from the to the own call system from the new call system. It seems like it wasn't an instance of them going after you without basis. Well, that's our position is that yes, there was going after us without not us, but Polar Electro and Polar. If we look at the evidence of record, we do have three declaration by Mr. Mayor that are sworn under a pain of purgatory. So we accept them as true. We must. Until they're countermandant, right? So at this remainder testified, I'm looking at the third is the deposition or the declaration that came in on nine. I interpreted the claim terms I believe were necessary to interpret. Clearly you'd have a means plus function patent. So that means he's saying I did that. I performed it in front of an analysis and stewed them. He goes on and he's telling you what he did. You had the opportunity to depose, Mr. Mead. No, you're on a request to do it, but we did not. But you're not telling us on appeal that that was error. You got snuck a little bit because you said we'd like to depose Mr. Mayor and Mr. Reckleach if you're going to grant all of these supplemental papers coming into the record. If we're not going to bring him in, then we don't want to depose him. And what the executive court judges, he kept out, roughly just declaration and good exact declaration and cementing, but he led in the third declaration. Most of the third. Most of the parts that hurt should be left. And you didn't be persistent. So from my perspective, I mean, if you put Maynard on the stand, you could have asked him a whole lot of questions about what he did, right? And he'd be on the road. You would find out whether he had said what he swore to you. The further he's pretty serious stuff. But it's not necessary in this case because it was the burden at that point in time when proceedings for Mr. for the plaintiff to come forth and show that they had done the appropriate inquire. All he says is I'd find looked at the claims. We don't know what he did, whether it was a means puzzle. Well, we're low in the record, for example, that Mr. Reckleys very shortly after Mr. Maynard had done his research, writing letters to your client, which he's referring to the means for determining this and the means for determining that. So that would lead certainly, that's evidence to show that somebody had recognized that this was a means plus function pattern. I'm looking on something that's got letters, the letters that were sent by Mr. Reckleys to the president of Polar, they're at A717 here in the records, you're saying. We think that in your device there are the means corresponding to the structure you got of your. That was a response to Polar's after the complaint was, was Polar's letter after the complaint was filed. And with respect to the technical. This is what he's asking, this is what he's asking for a license, this is a well before the complaints filed. But Mr. Ortsin to A717, Mr. Reckleys is writing, saying, the your products, you know, got these problems. The heart rate mounting feature correspondence to the means for providing data indicative of the cardiac function of the user. That got somebody who were a Howard, he had to think this was a means plus function plan. Could have written that letter otherwise. Mr. He sent two of those, if there's one, I was looking at the following. Mr. Ortsin did not say that when his declaration under purge or in the panel is purge, he didn't say I looked at these. I found that I think this is the claims I believe were necessary. Right? Let's assume for a moment that somebody recognized that these claims were means plus function. I find that part to believe that they knew what he did. They're just two simple means. There is no evidence that there was a construction that says, okay, what is the first function? What is the second function? What is the structure in the car's response to that first function in that second? Well, my first one is you had an opportunity to find that out. You could put Mr. Mayor to understand and really let the fire under his seat because he's undergrowth. We had the opportunity and asked for it. And you were denied and you didn't complain. You didn't say to the judge, hey, wait a second, you can't let in the third declaration and not let me depose the ballot. That doesn't cure the deficiencies of the record of the record you are. Or, nor does it cure the deficiencies of Mr. Mayor's declaration, which should have said, I did this. There is no evidence. Yes, there are certain standards. The financial evidence is somebody recognized that these work means destruction. We'll take that for granted for long. But again, there is no evidence of saying what is the black litter law, what you do when you have means plus function claims. You interpret it as what's the function, what structure performs that function. Moreover, in an infringement analysis, is there a car response between the structure in the pattern? Look, let's also look at what's happened here that the chief judge certainly alluded to. We have the judge actually ordering Howard Simon to produce the two memorandum. How they offered to give them up, because I read the record, the judge said, I order you to give them to me. The two are called the two secret memorandum. The two secret memorandum. The judge in his opinion said, I reviewed the two memorandum and these two memorandum support what Mr. Mayor said in his declarations. I think that's a fair character position, but I think he said there was nothing in the secret memorandum. The secret memorandum, that would change his opinions. Well, he's heard, I mean, the judge knows what the law is, right? The judge, you know, the black litter law that we have in these plus function claims. I mean, does the United States have the evidence of showing that that was applied here, you know? I understand what you're saying, but the simple fact is there is no evidence of the claim construction and moreover, there's no evidence of a pre-infringement filing analysis for means of a function. That's important. I refer you to, for example, the patent claims in patent figures, a 17. I don't read your brief to be saying that the judge aired as a matter of law in looking at the two memorandums. The judge is free to look at the memos. Wait, Mr. Smith, you have to go very slowly. The judge was free to look at the two privilege memorandums. Yes, sir. So that wasn't a violation of law for him to do that. And the judge once he looked at the two memorandums, it was the judge entitled to rely on something in the memorandum to support his decision. Not without disclosing those memorandums to the law, but that does memorandum. This court cannot reasonably conclude that the claim construction was appropriately performed prior to filing suit. That's what the judge relied on below. Unless we take the view that Mr. Mayer, who at the risk of going to jail for surgery in his first, second, and third declaration, said I did what was necessary. And I didn't say by what I was espousing as a theory of the case is the burden then shifted to you to deposing. The two things, one, he didn't say I did what was necessary, said I did a claim construction, I did analysis. He didn't say I applied, I found the first function, I found the second function, I found the structure. The structure is important. If you take a look at the patent, there are several pages of figures of the important structure here. None of which is discussed anywhere in the record. I see this money, I agree. Time? You're ending your rebuttal time. Yes, you'd like to say that you may. Unless there's a question I'd like to give you, do you like the answer? Thank you, we'll preserve your time, Mr. Moran. Mr. Rupplitch. May I please the court? Judge Carter's order denied role 11 sanctions should be affirmed. He did not abuse his discretion. His findings that Howard's claim construction was not frivolous is not clearly erroneous. And there's no clear error in his finding that Howard performed a pre-filing of a investigation. It's sufficient pre-filing. Is the judge rely at all on the two previous documents? What the judge did was... He relied on them as both a check and to identify that there was nothing inconsistent in those documents. What was the check? What do you mean by that? What he said was that the major declarations were a faithful summary, this was on page A5, a faithful summary of what is in those memorandum. So he went back and he used it as a check to the veracity of what's in the document. When the affidavit said I conducted the claim construction I thought was necessary, we all know it's a means of function claim, all the lawyers know what the chart's supposed to look like. The judge is saying I look at the secret documents and they confirm the generality that was in the original declaration, right? Correct. Okay, so now my question is how do we know that the judge is right? Because we can't see the two previous documents. See what's happened is that the judge has relied on non-evident something that's not a record. But the judge was... The judge was finding for amply supported by the evidence that is a record, because if we look at the evidence that was in the original... The judge is told by not deposing of the manner. But what I want to stick with is that there's a star chamber element to this case. We have a district court judge who, by your admission, is relying on privileged documents that are not a record. They're not a record here. For all we know, the two memorandum deals solely with the client meeting and with contingency-thing analysis. Because that's the way the mayor described it. So how do we know? We heard me, for example, sustaining a district court decision. When the district court judge said in making my decision, I'm relying on what my wife told me this morning. When I say the court relied on it, the court's ultimate decision is amply supported by the other evidence on which the district court relied. So when I said that this is an order that's on which the district court relied has to be the three declarations, right? Correct. That's nothing else in the record. Correct. And what do those declarations say? We know that Mr. Maynard is a registered patent attorney. We know he studied the patents. We know he studied the file history. We know he conducted legal research on claim construction. We know that he construed the asserted claims. And there's no dispute. The only two limitations of claim one are in means plus function form. We know he drafted a first memorandum in which he said he included a preliminary claim construction. And we know he drafted a second memorandum in which he amplified that claim construction, including citations to case law and the patent specification. Mr. Recleach, we probably wouldn't be here if there was a claim chart somewhere that broke the claim down element by element, identified the structure and so forth, and then pointed to where that was found in the accused devices. Is there a reason that wasn't there? Two answers to that. First of all, a claim chart is that this court's made clear that a claim chart necessarily is not required. But second, remember that these memos were written a year before the complaint was filed. And they don't have, you're not going to find in these memos a detailed claim chart for all the different defendants accused. I'm going to start telling us about what's in those declarations that you're going to find that you've waived a grip on. I'm not very careful, Mr. Recleach. I believe you know I understand that, you know, but what Mr. Maynard said was that he included in there a claim construction and he included citations to the record and he included citations to the case law, which there is no dispute in this case that how is claim construction was wrong? There is no dispute. We were here before, not this entire panel, but some of the judges on this panel. How are we assumed early on that the patent claims that were asserted covered both embodiments, including the simplified exercise embodiment? How are we asserted in this case all the way up until the judge decided the summary judgment order and the claim construction and even on appeal to this court, we spent nine pages of our brief arguing that the claim construction issue that the word patient included normal, healthy individuals. It's only for Mr. Recleach. Mr. Recleach, let me come back to the privilege issue. You rely very heavily on your brief on the 1983 Advisory Committee note to rule 11 that says, you know, we don't, we don't want rule 11 to be an occasion for breaching the word product privilege. You're familiar with the 1993 Advisory Committee note? Yes, you're right, but we try to be careful. Let me refresh your recollection. In 1993, after several years of experience with rule 11 motions, the Advisory Committee noted that good practices for a district court to defer ruling on a rule 11 motion until it cases all over, which is what happened here, because it says it would reduce the disruption creed. If a disclosure of attorney claim to medication is needed to determine whether a violation occurred. So by 1993, the Advisory Committee recognizes that there may be cases in which a disclosure of attorney claim privilege is necessary to determine whether a violation occurred. And because it's deferred to after the trial is over, the fact that you had some trial strategy in the memos that you were trying to protect, giving that up after the trial isn't so painful, right? And you're all a balanced scale trying to find the right results. Well, there's a lot of other things in the memo that in memos of that nature, there are a lot of other things that the same... Well, when the rubber hit the road and Maynard had to make certain, it's really accurate, that is to say in the third declaration, he described that second memo not as a claim construction, or as a, you know, in branch analysis, that was a contingency fee analysis. So presumably your firms make up about you were very charged and how you were doing, it's been embedded in that document, and I understand why you don't want that to be disclosed. But here we have a situation where you've agreed that the district court relied on stuff that's not in evidence, we haven't seen it. And once again, I'll say this again, the district court only relied on it to the extent that he was checking the veracity of what Mr. Maynard testified, he has an independent basis for his own. I'm assuming that it meant he didn't have it. I mean, what would happen if we were to hold that it was against a violation of law for the judge to rely on evidence not in record? That's a pretty simple proposition, you can't rely on what your wife told you. And to say the judge got to go back and look at this case clean, and decide whether the three declarations that are in record are sufficient. And that's what he did because we do that, he said they're sufficient because I have looked at the secret documents. He never said that, what he said is I've looked at the secret documents and they are a faithful summary of what Mr. Maynard testified, and I don't see anything here to change my findings. And it didn't change the fact that Mr. Maynard testified in those declarations about all of the things that he did. And it didn't change the fact that the basic dispute between Polar and Dr. Tarrani was not over whether a means plus function analysis was ever done, but it was which means plus function analysis was correct. And that turned on the issue of the construction of patient, which wasn't decided until two years after the complaint was decided, and once the court determined that patient doesn't include normal healthy individuals, the court determined that Dr. Tarrani dedicated to the public, her simplified embodiment, the court determined that therefore the means plus function limitation required the measured stroke volume. And there was no dispute between the parties. There was never any dispute that these devices didn't measure the patient's stroke volume. So this was as the parties told Judge Carter very very beginning of this case, this is the client construction case. And so the parties disagreed about the claim construction, but those claim constructions, the competing claim constructions were presented to the District Court and they were presented to the Federal Circuit. And yes, the District Court determined that how we was wrong. And Mr. Maynard talked about all the steps that he went through and the District Court's determination was that the finding was that the patent specification gave how we the reasonable expectation that a court would agree with its construction. And that finding is not clearly erroneous. The District Court's determination was that how we claim construction was not of a frivolous variety and was not so frivolous as the work that you said. Well, your discounting is that and we'll need to belabor it, but anybody reading the District Court's opinion is going to realize the District Court was very troubled by what had happened here. They were very troubled with your client in particular, they come real close to saying he was a bad person. He did. Well, the sheet pardon me. But the court was clearly difficult having difficult problems. And if one were to view the court finding the crutch or something that helped the court over this hurdle in a very, very difficult case for that was the two privileged documents. I look at them and they give me comfort that these generalities that that Mr. Maynard has stated and is that they're sure. Right. So how can we be sure that the District Court would reach the same decision on the real 11 issue if the previous documents had not been given and not been given the judge? Because what the District Court statements were. I hate to keep returning to this, but the District Court statements were. Then you be specific. Yes, the District Court said about those that they were a faithful summary and that's on page A5. And then he said that the memorandid didn't supply any reason to change his findings and that's a page 810. So it's that use that really made them largely irrelevant. Mr. Maynard was in front of this District Court. So you know reason to change his findings. That means that he thinks that there's something in the detailed stuff in the memorandum that actually counters what your opposition has been saying when he says, you know, I have no reason to change my mind. And the whole challenge, you know, in front of the judge was there's no specificity here. That was the same argument your your average are making here. So when the judge says, well, I got no reason to change my mind. There must be specificity in the document. Well, they understand that Polar's argument shifted throughout time. It started out. They said that how we conducted no free filing investigation. That was the basis for their original motion. And it wasn't until much later in the day, probably their fourth brief when they said, oh, how we didn't, didn't you. So that means plus function analysis. Well, that is frankly refuted by the evidence that's before the court completely separate from the November memorandum. And that is that Mr. Maynard is a registered patent attorney. He had the patents. He had the prosecution history. He researched the case law. He did several iterations of analysis of that. And then how represented in those August and September letters before the complaint was ever filed, a letter saying, look, here's what corresponds to these limitations and presented a means plus function argument for two years. For two years in the case that was faithful all the way through in consistent. And then at the end of the case, two years into a judge Carter rule that that was wrong. We brought it up on appeal. We argued for nine pages of our call of brief. And this court said, yes, judge Carter's correct you how we were wrong. But because we were wrong judge Carter recognized doesn't make our claim construction. Ferviless. Nor did it make the infringement analysis that was performed. Ferviless. And he had some concerns about the fact that that that we only looked at two devices. We only looked at all the user manuals. We only looked at the article about how these devices work. We only looked at the patents that were marked on the products and how these work. And he was concerned about extrapolating that infringement analysis from just the two products to the 14. But there was no question there's never been a dispute that every one of those accused products use the own cow feature. It's in Polar's literature that's available on the website. It's in the comparison chart that we identified. So there's no dispute. One of the interesting problems in this whole setting is that we don't know whether there have been instances in the past like this where after the trial is over district court judges ordered to disclose break the attorney's claim. We should determine whether or not a violation had occurred. Are you aware of any such incidents? We were not able to find any of your honor but let me caution you. It's not the attorney client privilege. It's a word project. The issue was, I see my time to expire, I just want to explain that the issue was not. Final thought Mr. Rickledge. Final thought. The final thought was the issue wasn't details of what was done and what was not. The issue wasn't details of how the product work. The dispute between the party from the very beginning all the way to the end of the case was on competing claim constructions. As it turns out, how it was wrong and that claim construction. But the district court didn't abuse its discretion finding that that claim construction was frivolous. Thank you. Thank you Mr. Rickledge. Mr. Moran you have four and a half minutes. First I'd like to strunously dispute Mr. Rickledge is a characterization that it was purely a claim construction issue below. But Mr. Moran we do have four. The dispute before the court allowed was more than just a claim construction. It was what structure is in our devices, polar devices that cars on to the structure shown in the pack. And that goes to the crux of what's not here today and that is despite what we said here, the best the district court can do is guess at what is there. If this court had found that a patient could encompass a healthy person, would we be here today? Yes, because we still do not know despite what's been said. We probably will be here in the other direction because what's missing here is the evidence of other than guess. Mr. Moran. Mr. Moran. Yes, Your Honor. Thank you. The trouble I have is that claim constructions a very difficult process with a multitude of factors that influence it. You're absolutely right. And so with that kind of a complex legal matter to be determined, it's difficult isn't it to merely based on an outcome of claim construction charge someone with frivolousness. That's not what occurred in this case, Your Honor. The rule of that in the notions were put in before the summary judgment was even ruled upon. So it was not waiting till after the theory from the get go was that only an exercise of frivolity could have read the claims on a healthy person. On a claim construction issue. And also on the infringement issue only an exercise of frivolity. I'm just supporting what I make it she judges saying is from the get go when you said, well, how many things this claim reads on a healthy person. That is frivolous. And oh, boy, we're going to we got it. We're going to get a real one. No, that's not the only thing you're honored. It did not resolve only on that issue. That's the only one that made it to the judge ruled on in the summary judgment. There was a whole second part of the case is a way to make it. The structure that's used in this device is nothing like the structure that's shown in the specification for these other other functions. Well, and that would be a question of claim construction too, wouldn't it? Because structures also encompasses equivalence of that structure all within the claim construction function. And so once again, we're into the complexity of the legal question that could have easily gone the other way. And then we have not. I want you to do Mr. Moran is listen to the end of my question and then respond. So let's start over again. Isn't this just a matter of claim construction doesn't that make your burden here very difficult? No, it is not matter of just claim construction. There's two pieces to it. There is the claim construction. What is it? It's not before the court today. The other half is once you have that claim construction complex as it is is your honor noting. Applying that claim construction to the devices. And once again, there's no evidence of whether or not that was actually performed in this case. In fact, with respect to at least one device, it wasn't performed at all. It simply looked at the feature as Mr. Ruppridge said earlier. Show them marking chart for the S 810i product. Mr. May or Mr. May or look only at the marking chart which on its face said we have features. Features are not the structure that's incorporated into the claims by virtue of one 12 paragraph six. And there's no evidence that Mr. May or actually did one 12 paragraph six investigation. So is that Mr. Kraks of your argument here after all the unavailability to us on appeal of those two work product documents? In part of your honor, it's our position that you cannot affirm without those documents which you could reverse without those on the basis of the non-infringement analysis or the infringement analysis not being made. I see that my time is up. There's no further questions. Thank you, Mr. Moran