Legal Case Summary

The United States Court of Appeals for the Federal Unification is now open at discussion. Dr. H. Lee, you have a seat. Please. Good morning, ladies and gentlemen. We have five cases on the DACA this morning, one of which is submitted. The first four are being argued. The first argument today is this incorporation versus Fadi. Did I pronounce that correctly? I was about to ask you today. Today. DACA number 13, 12, 16. I understand that each of you want to reserve five minutes for rebuttal as it relates to the appeal and the respective cross appeal. Is that correct? Yes, Your Honor. Okay. All right, Mr. McFarlane. Good morning. May I please the Court? I'd like to focus on two specific errors that we believe are the district court committee that granted somebody judgment. That the defendant's do not, is the French claims five and claims five was the 9-4-9 pattern

. The first error involves the claim limitation active assembly. And specifically as it was construed in the summary judgment order and the types of actuators that are included in the scope of that means plus function claim limitation. Now, the specification discloses three alternative and modem of that active assembly and the actuator included in it. It solidifies your actuators, numerically driven actuators, and is separately mechanical linear actuators. Can I ask you just to clarify, you're not objecting to the fact that the court employed a 1, 12, 6 analysis. Correct? Correct. And you're not objecting to the construction, to the extent that you believe it existed at the time of the claim construction order. Correct. And that would include all aspects of the structure that the relatively complicated structure that the court described. Is that right? That's correct. Okay, and that includes the timing signal and everything else relating to that structure. Correct. We may argue as to those other components of the structure, but the description of those components within the construction we are not objecting. Okay. All right. I just wanted to make sure that we had a full sense of exactly what the structure is that we're working with and it's either one where the court's languages and or should be read to say including. Correct. Okay. Go ahead

. And we believe that the specification clearly indicates that the disjunctive interpretation was correct. There are two places to talk about the active assembly and the types of actuators. The first is column 18 lines 50 to 59. Let me make sure just to follow up on Dr. Mally's question. You're not pressing. You actually described four types of actuators in the specification. The fourth type is just a any other. Now all other correct. If you're giving up on the all other in light of the district court's construction. This is specifically disclosed types of actuators are the three. And then the fourth category are not specifically disclosed. So we are not pressing that. So the first place it describes each and body that includes an actively driven actuator. So that's pneumatically bored by solenoid. And so from that place we have two examples of an actively driven actuator, a solenoid or an amazis. And then the next place to discuss is column 29 and sport 23 where it says in preferred embodiments each actuator 88 includes a pneumatic cylinder considered to pull or push your act 80s. So that block 88 is pneumatic cylinder. And it says in other preferred body, when it's a contract rate or 88 is a mechanical linear actuator, can figure to pull or push track 87

. So it's clearly described in the separate body mass. Now let me understand something though that support it. And it's hard to describe the general function which is moving the camshafts and obviously opening the pitting system or operating the pitting system. But the court also discussed the word active and said active is functional language. So what is it about a mechanical linear actuator that is active in the absence of power source? Well, each of these actuators has a power source. One of the ordinary skill in our would understand that the pneumatic cylinder is powered by an amazis engine somewhere, pumping air into it. A solenoid at the top is powered by an electrical source somewhere. The power source in and of itself is not part of this claim limitation. Besides the case that gave the example of a toaster, you can have a pattern that is drawn to the mechanism of the toaster. It operates based on the electrical power of the toaster. But the actual electrical power of the power source is not part of the claim limitation itself. And so the same applies here. You have a mechanical linear actuator that is driven by a power source, a motor. Also the solenoid is driven by a power source. The pneumatic is driven by a power source of an electric array of air into it somewhere, a pneumatic engine somewhere. And so that power source is not strictly within that claim limitation. And so that the idea of an active assembly in the prior heart models, the pockets were opened and closed as the mechanism moved by cam tracks. And differently shaped clamp tracks were opened and closed. The pockets, the idea of an active way, there's an actuary that means that the pockets are opened and closed by the mechanism of one of these three actuators

. And so we believe that those three disclosed embodiments within the specification are clearly described in the destructive and the claim construction should also be of this objective. Now if the core agrees with that construction, then there's no basis for the district court summary judgment. The district court assumed that they were mechanical in their actuators within the accused devices. And so if that destructive claim construction is correct, then it's not going to overcome some red dodging. Well, the couple of arguments that are made in response. One is that even if you accept the proposition that there's a mechanical linear actuator, there still wouldn't be infringement because there's nothing linear about the acute device. And the linearity of it can be seen very clearly on the exhibit. It's in the appendix A1268. It's a diagram shown with the adjuice product that the accused devices are. And the mechanical linear actuator, it consists of that activation rod driven by the second cramp, which is the rotary motion that drives it. And then it's that drives the connector length, which is rigidly connected to the bottom of that lever. And then the cam tract. And so it moves those cam tract horizontally. And according to the testimony of the inventor who designed that, that actually the shape of that lever was actually designed to minimize any vertical motion. It moves one half inch horizontally. And it's as it was 0.0035 inches vertically. And so it's by any level of design rule, it's almost perfectly horizontally. The magistrate judge did not address that issue correctly

. That is correct. He simply assumed that there were linear mechanical linear actuators in the acute device. I'm going to grant him some rejection. Well, okay. I mean, the summary section is granted on the grounds that mechanical linear actuators are not within the scope of claim. Correct. And all infringement issues were put in the last put in the opinion, I'm not addressing any of the infringement issues. That's correct. And so that's where the mechanical linear actuator comes in. You have that linear motion that is actuated by mechanical linear actuator. And so even under the more restrictive construction that the district court put in, we actually also had evidence showing that there was infringement under that more restrictive argument because there is a structural equivalent. And I would like to focus on one bit of evidence. It was from the defendant expert, Dr. Claw. And he testified regarding mechanical linear actuators that were in his declaration that a903, the standard handbook of machine design that shows examples of mechanical linear actuators. And again, the power source is not shown in those examples because the power source is not strictly part of mechanical linear actuator. But the testimony is strictly applicable to the accused of pitchers. What he, Dr. Claw says was that you can take the power source and switch out an error as power source for an electrical power source and it will operate in essentially the same way

. And so applying that to the mechanism that's shown in A1268, it shows an electric servo. And so what does testimony mean is you can take that electric servo and substitute a pneumatic motor there and it operates in essentially the same way. I'm going to give you a chance to discuss the one area on your side. I find trouble. And that is your spalliation argument. Given that the district court's abusive discretion standard, how's it an abusive discretion when what you folks did was a seed to request to delete the pictures. And yet, you had access to the material you had witnesses, they could testify. We replied in good faith with their demand that they delete those photographs and we had no notice or information that they were going to do. But how's it an abusive court's discretion? That's a high standard. And at the summer of the judgment stage, we thought that the court did not give that any weight but so ever, and that under the case law without the fetchers had given some weight. If we are to assume that your rights, that mechanical linear actuators are not just part of the claim where they would have to be driven in a solenoid or pneumatic way and they could be driven to, by some other power source, then what is your response to the court's alternative finding albeit in a footnote that if in fact that's the case, the claim is indefinite. So the claimant is indefinite. I think that the standard for indefinite is given in the bio-medido case, which is one of the cases principally lied on by the defendant that says that the specification must contain structure into the claim means and it is not a high standard. And I think from one ordinary skill in the art, the structure and the specification both for the timing system and for the second term, the timing system and mechanical linear actuator shows that they are definite from one ordinary skill in the art. As we said, Professor Bowser is one of ordinary skill in the art, the attendance expert is an mechanical engineer but he does not have access or experience in that field of art. The disco-structure for mechanical linear actuator is again the activation rod, I'm sorry, that's the accused device, but within the context of the active assembly, here's a plethora of actual structure that's disclosed, the cases that defendants rely upon. I guess that's exactly what I'm concerned about, plethora of structures. When you look at that handbook, there's all kinds of things that could constitute a mechanical linear actuator. Are you familiar with our Blackboard decision where the court specifically said the mere fact that you could figure out how to do it, it's not enough when you're in a 126th context

. It's the difference between going into a park store and saying, I like a device that can turn off the lights and figure out what that is, can you design a form of how I like to buy a switch. Here in terms of what they've bought, in terms of the servo motor, in terms of the timing system, that's an off-the-shelf timing system. They've gone in and bought an off-the-shelf timing system just as anybody. The buddy case says that a commercially available vacuum sensor didn't disclose what that was, was known to one of the ordinary skill-in-yarder. They could determine what that was, they could provide an off-the-shelf. This simply says, if you're moving into the timing system as opposed to off-the-mechanical linear actuator, the timing system, all you say is it can be internally generated or externally generated, and there's lots of stuff out there. That's how broad you are. It's not that you said you could go in and buy a commercially available X. You just said you can go in and buy XYZ or D. For the mechanical linear actuator, it's a known structure as it's shown in Professor Cox exhibit that changes rather in motion to linear motion. That is a known structure. Just like an actuator is a known structure, mechanical linear actuator is a much narrower classification of structures than just overall actuator. It's such a much more specific than what an actuator would be. What about the timing system on the signal system? The timing system in the signal system again is a category of devices that Professor Bales would testify to that's well known to those ordinary skill-in-yard. The other side experts said it could be anything. Basically the fuse off of a hand grenade, a dash pot, a lighted fuse, an escape one of the more they still miss art, knows that those specific devices are not used within through process and change. So one of the more nice skill-in-yard knows the types of structures that that is, mechanical linear actuator, they can go identify as they can buy, they can pick it up the shelf. I suppose the hand grenade could process your through only on a one-time basis. All right, here I am saying you were a buttoil time I'm afraid

. So we'll give you a four-minute full restore some and give you a little extra response to the extent that you need it. Good morning, and may I please the court, my name is Michael Thomas, I represent the kind of linear actuator companies in the today's office. The district court's new creation summary judgment should be affirmed for at least three independent reasons. Now before I discuss the three reasons why the court's order should be affirmed, I'd like to step back and just to moment look at this case from 30,000 feet and address how I used to be dodging. We're here addressing claim construction because the patentee missed there. Traffic claims with the term active assembly which had no- Okay, we understand from your brief how we got here and that's why we were just asking precisely what the complaint are. So why don't you tell us what you three things are? Well, the ambiguity that the plan has had created, it's led to the court's claim construction, the arguments they're now making for a different claim construction, those were waived under the Northern District Local Rules. This then advocated for a construction that was not the main plus function during the claim construction. In the Northern District there are very specific local rules outlined in great detail, the sclozures of claim construction, counter-disclosures, deposition and discovery that occurred. Are you saying that the district court rules would apply in the following way that if I didn't think that the claim was written in means of a function format. And the district court found nonetheless that it was means plus function format that I have no recourse by way of arguing that the district court assuming the district court was right that the district court misapplied the 112th 6th analysis once he got there. I think under this court jurisprudence, particularly additional lending, the recourse, and you're going to tell me yes or no, I'm actually asking for a question whether that is your argument. Yeah, the argument is that they don't have that recourse to argue a different means plus function. Their recourse is to argue the original claim construction that they preserved on appeal at claim construction before the front. And so if the district court rejects their non-1126 argument, it doesn't matter what the district court George does in handling the 112th 6th, they have no argument as to no complaint that they can make to this court as to the mishandling of the one. And that is our position as well to argue the position that they originally advanced at the trial court. Now the one thing. Let me ask you a couple of questions too. I find this disturbing

. Two things. One, it page three of your opening brief of your brief. You say, plain and appellent, this end corporation holds, but does not practice assertive claims than you want. Why are you telling us it doesn't practice? Because they represent the big deal elsewhere in the papers. Right. That leads me to your claim on page nine using language like blatant misrepresentation. And, let's see, false assertion. All right. And I find that very disturbing. Have you taken action before the bar or about this time of Sunday? I know you are. Don't you think you're obligated to if you believe a fraud has been perpetrated on the court? I don't know that I am. I know it's biobligation to the map to for my client to bring those misrepresentations to this court's attention. And for example, the one reference on page nine or 10 of our opening brief. This and I look at it closely. I'm very disturbed by your use of this language in this context. I'm pretty much disturbed. All right. Assuming that we disagree with you on the waiver because it does feel like the only moving target we had here was the district court's approach to this case. Right, whether it was right or wrong, it clearly was a moving target that surprised everybody

. He didn't ask for briefing on 126 and the original at least original construction seems to have had a disjunctive use of grammar. So and that he provides that construction. So assuming we're not on waiver, what are your merits points? Well, number one, the construction was correct. That mechanical linear actuator is a description of what something does, not what it is. That is why there's so many different types of structures, not specific class structures, but a wildly disparate array potential devices that could under this definition fall within scope of mechanical linear actuator. But there are many devices, mechanical devices, that whose names are a description of what they do. A screwdriver, for example. What does it do? It drives screws. A brake. What does it do? It breaks. More motion. I don't think that it is unusual at all for mechanical devices to have names that are described. Their function. And here we have, as I think your opposing counsel pointed out, a page from a standard mechanical engineering handbook that has depicted mechanical linear actuators. And I think there's even a Wikipedia page referenced by one of the experts that describes the devices known as mechanical linear actuators. Why isn't that enough? Actually, all of those references refer to linear actuators except the Wikipedia reference. The only one that's worth it. But the word mechanical doesn't re-ext the critical part of the linear actuator, right? And that's a description of what something does. It means for generating linear displacement itself. What evidence did you introduce below that showed that one skill in the art would be unable to discern the scope of that term? What evidence did we circle out? First of all, we submitted the declaration of Dr. Klopp first. And then second, evidence below demonstrates that that is not a known discrete structure as required under 112 paragraphs six. Which of course we're applying 112, which means much particularly distinctly point out and claim the inventions. And so the evidence comes from the form of 50th-owned infringement contentions that have more than changed throughout the case. At one time, they led a single connecting route. All that self was a mechanical linear actuator. That's in their infringement contentions under the local rules, which also have changed in this case in violation of the local rules. That's one piece of evidence. Did the lower court rely on the local rules, on a violation of the local rules for purposes of its decision? The court did not because his claim constructions did not require him to address the fact that there's no... Do you think it would really be appropriate for us in the first instance to interpret the local rules and to apply some strict reading of those local rules when the district court didn't do so? Well, if the district court didn't have an opportunity to do so, and here we have new contentions that hasn't been addressed, I think the court could and its own discretion do that. I thought about that question myself. I'm not sure I know the answer. So what about the answer to Judge Wilde's question? He said, what testimony did you offer? Did you have expert testimony that said that your expert would not understand the class of structures that would fall into the rubric of mechanical linear actuators? Or did he testify that there were thousands of such structures? Or what did he say? Actually, our expert did not describe what a mechanical linear actuator is. He couldn't do that. He only described what it was. I made it earlier

. What evidence did you introduce below that showed that one skill in the art would be unable to discern the scope of that term? What evidence did we circle out? First of all, we submitted the declaration of Dr. Klopp first. And then second, evidence below demonstrates that that is not a known discrete structure as required under 112 paragraphs six. Which of course we're applying 112, which means much particularly distinctly point out and claim the inventions. And so the evidence comes from the form of 50th-owned infringement contentions that have more than changed throughout the case. At one time, they led a single connecting route. All that self was a mechanical linear actuator. That's in their infringement contentions under the local rules, which also have changed in this case in violation of the local rules. That's one piece of evidence. Did the lower court rely on the local rules, on a violation of the local rules for purposes of its decision? The court did not because his claim constructions did not require him to address the fact that there's no... Do you think it would really be appropriate for us in the first instance to interpret the local rules and to apply some strict reading of those local rules when the district court didn't do so? Well, if the district court didn't have an opportunity to do so, and here we have new contentions that hasn't been addressed, I think the court could and its own discretion do that. I thought about that question myself. I'm not sure I know the answer. So what about the answer to Judge Wilde's question? He said, what testimony did you offer? Did you have expert testimony that said that your expert would not understand the class of structures that would fall into the rubric of mechanical linear actuators? Or did he testify that there were thousands of such structures? Or what did he say? Actually, our expert did not describe what a mechanical linear actuator is. He couldn't do that. He only described what it was. I made it earlier. This is in Vistance on Greece. They say, this is a appendix, 1109. They say, telling me, defend this expert avoids making any positive definition of a mechanical linear actuator. He never did describe what it was. How about it, 877-877-9, where I believe this is from your expert's declaration. Describing a mechanical linear actuator is a mechanical linear actuator. It causes motion between two machine elements when the motion occurs along the straight line. And my understanding is that the mechanical linear actuator causes straight line motion is confirmed by the handle. That seems to me that he's describing, he's not taking minimum, he's not taking issue with the notion that the term mechanical linear actuator would be understandable to a person's skill in the art. I think he is. He's describing only what it does, not what actually, if you ask someone, please go by a mechanical linear actuator. He actually testified to this the latest portion of his deposition at some point at any rate. If in fact, one was asked, please go out and get me a mechanical linear actuator. Of course, instead, the question was, please go out and design me one. Either way, I love that question. Thank you, Gerranger. You're welcome, because I'm looking at the standard handbook and machine design. Either way, you could get a vast array of different types of structures as opposed to a discrete structure. It's a description of what something does

. This is in Vistance on Greece. They say, this is a appendix, 1109. They say, telling me, defend this expert avoids making any positive definition of a mechanical linear actuator. He never did describe what it was. How about it, 877-877-9, where I believe this is from your expert's declaration. Describing a mechanical linear actuator is a mechanical linear actuator. It causes motion between two machine elements when the motion occurs along the straight line. And my understanding is that the mechanical linear actuator causes straight line motion is confirmed by the handle. That seems to me that he's describing, he's not taking minimum, he's not taking issue with the notion that the term mechanical linear actuator would be understandable to a person's skill in the art. I think he is. He's describing only what it does, not what actually, if you ask someone, please go by a mechanical linear actuator. He actually testified to this the latest portion of his deposition at some point at any rate. If in fact, one was asked, please go out and get me a mechanical linear actuator. Of course, instead, the question was, please go out and design me one. Either way, I love that question. Thank you, Gerranger. You're welcome, because I'm looking at the standard handbook and machine design. Either way, you could get a vast array of different types of structures as opposed to a discrete structure. It's a description of what something does. But if I think of a screwdriver, I can go to Home Depot and they have a row of screwdriver. They don't have that from a mechanical linear actuator. How do we know? There's nothing in the record that I can find that says that. This is claim construction. And Vistann has offered an ambiguous term active assembly, which is then made constrained by the port. The port is unable to ascertain that this is a discrete particularized structure. And then the Vistann's jurisprudence and bio-redino and ergo, it's not specific enough. If we look actually at Vistann's own position, it says, if the port will indulge on page 36 of Vistann's repatriates, they say the following. Both parties experts testify that length regarding the meaningful actuator and mechanical linear actuator. Our expert only talked about its function, not what it is structurally. Vistann's experts, Dr. Bowser, have pined that an actuator is an electric, hydraulic, mechanical, pneumatic device, or a combination of these to affect some predetermined linear or rotational motion. And that mechanical linear actuator is an actuator as defined above that is driven at least in part by a mechanical element such as a gear threaded rod, cam, or crank. And if that definition, that is their definition of mechanical linear actuator. It doesn't even have to be linear, according to that. If you take that and grasp it into Judge Sparrow's client construction and include that set of structure, then the question becomes, what isn't mechanical linear actuator? What is the color by this planet? Everything is covered. And you write back to the same ambiguity that you started with with the term active assembly. It is everything under the sun. And that is the problem

. But if I think of a screwdriver, I can go to Home Depot and they have a row of screwdriver. They don't have that from a mechanical linear actuator. How do we know? There's nothing in the record that I can find that says that. This is claim construction. And Vistann has offered an ambiguous term active assembly, which is then made constrained by the port. The port is unable to ascertain that this is a discrete particularized structure. And then the Vistann's jurisprudence and bio-redino and ergo, it's not specific enough. If we look actually at Vistann's own position, it says, if the port will indulge on page 36 of Vistann's repatriates, they say the following. Both parties experts testify that length regarding the meaningful actuator and mechanical linear actuator. Our expert only talked about its function, not what it is structurally. Vistann's experts, Dr. Bowser, have pined that an actuator is an electric, hydraulic, mechanical, pneumatic device, or a combination of these to affect some predetermined linear or rotational motion. And that mechanical linear actuator is an actuator as defined above that is driven at least in part by a mechanical element such as a gear threaded rod, cam, or crank. And if that definition, that is their definition of mechanical linear actuator. It doesn't even have to be linear, according to that. If you take that and grasp it into Judge Sparrow's client construction and include that set of structure, then the question becomes, what isn't mechanical linear actuator? What is the color by this planet? Everything is covered. And you write back to the same ambiguity that you started with with the term active assembly. It is everything under the sun. And that is the problem. And that is the position we face to be a better than other states. Everything under the sun? Well, everything under the sun that can actually move with tanical parts in one way or another. How about an admin? I suppose it sounds like a mechanical parts that doesn't sound like a mechanical linear actuator to me. Well, I would admit that solenoids as well as black and violators are occasionally referred to and actually are electro-wagons. Well, solenoids are driven by electro-magons. That's true. You are going to have to stop in a minute if you want any rebuttal. But let me ask you this. Both with respect to your issue regarding the timing and the signals and even to, I guess, the lesser extent with respect to the issue of mechanical linear actuators and whether that indefinite is a question of law, but it turns on underlying facts. We don't actually have any of those findings by the trial court. Wouldn't it be more appropriate for us to remand if we thought you were even had a valid argument to the district court to say if you're going to go on indefinite, we need to know why. I think with respect to the mechanical linear actuator and the conventional timing system, I think the court have the evidence and the record developed, particularly conventional timing system. But the court didn't answer that. Didn't even rule on that. That's correct, you're right. The court deferred that. He didn't have to reach that question because he found a lot of pressure. Okay, so I guess I'm trying to understand your, to the extent your cross of bills, comments on that. There's no judgment below

. And that is the position we face to be a better than other states. Everything under the sun? Well, everything under the sun that can actually move with tanical parts in one way or another. How about an admin? I suppose it sounds like a mechanical parts that doesn't sound like a mechanical linear actuator to me. Well, I would admit that solenoids as well as black and violators are occasionally referred to and actually are electro-wagons. Well, solenoids are driven by electro-magons. That's true. You are going to have to stop in a minute if you want any rebuttal. But let me ask you this. Both with respect to your issue regarding the timing and the signals and even to, I guess, the lesser extent with respect to the issue of mechanical linear actuators and whether that indefinite is a question of law, but it turns on underlying facts. We don't actually have any of those findings by the trial court. Wouldn't it be more appropriate for us to remand if we thought you were even had a valid argument to the district court to say if you're going to go on indefinite, we need to know why. I think with respect to the mechanical linear actuator and the conventional timing system, I think the court have the evidence and the record developed, particularly conventional timing system. But the court didn't answer that. Didn't even rule on that. That's correct, you're right. The court deferred that. He didn't have to reach that question because he found a lot of pressure. Okay, so I guess I'm trying to understand your, to the extent your cross of bills, comments on that. There's no judgment below. He didn't say it was definite. He just didn't say it was indefinite on that ground, right? That's correct, you're right. Trump or didn't rule on that. But having this in now, proper to claim construction that included indefinite terms both in the form of a timing system, as well as a. Canton linear actually we believe it's right now for this court to invalidate the time and the final point I would make is that there actually is no evidence here of. A timing system and a control signal as required by the court to claim construction in the choosing infringement by a certain independent basis finding a non infringement. But that's also not ruled out by the district court. Okay, now you have gone way over. So what we're going to do is we will give you three minutes. We'll give you four minutes. Thank you. Does this just in practice this? The this and it's been in the business. I see what you've got. They do not practice this specific claim. They practice other claims included in this. What's your answer to my question about whether if we have any questions regarding indefiniteness, it should be something that needs to be referred back to the trial court in the first instance of fact. I would not disagree with that. I think there is some evidence in the record, but there was not the subject of the trial court's decision. I think there is sufficient evidence in the record to show that these are not indefinite

. He didn't say it was definite. He just didn't say it was indefinite on that ground, right? That's correct, you're right. Trump or didn't rule on that. But having this in now, proper to claim construction that included indefinite terms both in the form of a timing system, as well as a. Canton linear actually we believe it's right now for this court to invalidate the time and the final point I would make is that there actually is no evidence here of. A timing system and a control signal as required by the court to claim construction in the choosing infringement by a certain independent basis finding a non infringement. But that's also not ruled out by the district court. Okay, now you have gone way over. So what we're going to do is we will give you three minutes. We'll give you four minutes. Thank you. Does this just in practice this? The this and it's been in the business. I see what you've got. They do not practice this specific claim. They practice other claims included in this. What's your answer to my question about whether if we have any questions regarding indefiniteness, it should be something that needs to be referred back to the trial court in the first instance of fact. I would not disagree with that. I think there is some evidence in the record, but there was not the subject of the trial court's decision. I think there is sufficient evidence in the record to show that these are not indefinite. The mechanical inter actuator was discussed by experts, both experts could describe it to point to textbooks that show what it is shown with the information was. And so I think there is sufficient evidence in the record to show that it is not indefinite. And what's the evidence in the record to show that there is actual timing that the acute devices respond to a timing signal? There are two bits of what the timing signal was saying to be internally generated or externally generated. And so in terms of the classical, mechanical control signal, the motion of the actuator on itself can be considered that control signal. And then alternatively, in our infringement contentions on the motion, we said that the control signal was coming out of the survey drive, the drives, the timing crank are the control signals. And so there is evidence that that control signal was in the record. Which is a principle argument, the one you just reiterated first, is that control signal does not need to be an electric control signal. It can be a mechanical signal. CRED is a bump on a rotating shaft or something like that. CRED is in terms of... Even though it's not readily adjustable. CRED. And your opposing counsel in this brief says, well, adjustability is an important aspect of that. And therefore that's why your type of control signal is not... Your mechanical signal is not an in-scope of claims

. The mechanical inter actuator was discussed by experts, both experts could describe it to point to textbooks that show what it is shown with the information was. And so I think there is sufficient evidence in the record to show that it is not indefinite. And what's the evidence in the record to show that there is actual timing that the acute devices respond to a timing signal? There are two bits of what the timing signal was saying to be internally generated or externally generated. And so in terms of the classical, mechanical control signal, the motion of the actuator on itself can be considered that control signal. And then alternatively, in our infringement contentions on the motion, we said that the control signal was coming out of the survey drive, the drives, the timing crank are the control signals. And so there is evidence that that control signal was in the record. Which is a principle argument, the one you just reiterated first, is that control signal does not need to be an electric control signal. It can be a mechanical signal. CRED is a bump on a rotating shaft or something like that. CRED is in terms of... Even though it's not readily adjustable. CRED. And your opposing counsel in this brief says, well, adjustability is an important aspect of that. And therefore that's why your type of control signal is not... Your mechanical signal is not an in-scope of claims. Well, the adjustability is not within the climate, just as it has to move within synchronism with the other devices. It doesn't say that synchronism has to be adjustable or it makes the law faster or changes, just says it's in synchrony. And so with that, mechanical signal that is in synchrony. And I suppose it is adjustable by shifting the machine. It's adjustable by shifting the machine correct. And then just to provide... My colleague, my opposing colleague has said, we do not believe there's been any waiver every hour. We made on appeal. We made virtually work for work in a post-missumary judgment. And in terms of mechanical and your actuator, you can buy one. We've submitted it to 2136, 2131, a catalog that shows various mechanical and your actuator's that you can buy. And I think that in conjunction with the case books that show you what mechanical and your actuator is. It's not a single known structure, but it is a defined category of structures that under cases like BUDDY is sufficiently relevant to support a means of function claim under 112 purposes. And again, it's not an unbounded claim. It's not a magnet. It's a mechanical device, as opposed to an electronic or air compressor. It's a compression that's a narrow category of devices

. Well, the adjustability is not within the climate, just as it has to move within synchronism with the other devices. It doesn't say that synchronism has to be adjustable or it makes the law faster or changes, just says it's in synchrony. And so with that, mechanical signal that is in synchrony. And I suppose it is adjustable by shifting the machine. It's adjustable by shifting the machine correct. And then just to provide... My colleague, my opposing colleague has said, we do not believe there's been any waiver every hour. We made on appeal. We made virtually work for work in a post-missumary judgment. And in terms of mechanical and your actuator, you can buy one. We've submitted it to 2136, 2131, a catalog that shows various mechanical and your actuator's that you can buy. And I think that in conjunction with the case books that show you what mechanical and your actuator is. It's not a single known structure, but it is a defined category of structures that under cases like BUDDY is sufficiently relevant to support a means of function claim under 112 purposes. And again, it's not an unbounded claim. It's not a magnet. It's a mechanical device, as opposed to an electronic or air compressor. It's a compression that's a narrow category of devices. Actuators, broad category, mechanical and mechanical actuators, narrow category, and mechanical and mechanical. And so there are cases that we cited the same actuator and another tells us it is a distinct structure. And then some mechanical and your actuator is narrower and more defined and less indefinitely than the actuator. Okay. Okay. All right, but, Tom. Of course, I'll leave my comments to the traditional cross-pure. The indefiniteness argument applies both to the term mechanical and your actuator if it's read to be an independent corresponded structure. As well as the term conventional timing system generating control signals in any number of well-known ways. The testimony from business owner expert Dr. Boudre is that that conventional timing system can include a range of structures, including integrated circuit, 555-timer chip, solid state integrated circuit. No moving parts whatsoever. You said that in a separation on one end. Did the court construe those terms? The court construed the act of assembly term to include requirement for timing system. Okay. Did the court construed signal or timing system? The court, in a sense, I think the court did because he included timing control signals within the claim constructing the course on a structure. And the question then becomes, well, what does control signal mean? In the court, what adds its way in its claim construction order to provide the context of what that means, and that's about 828. For the court specifically said that control signals are generated by a timing system operating in synchronism with both a cyclical motion at the holder conveyor and cyclical motion at the Pitting Night Assembly. So it's to be useful to cause the operators to open briefly and then reclose the holders of the pockets, and then this is critical

. Actuators, broad category, mechanical and mechanical actuators, narrow category, and mechanical and mechanical. And so there are cases that we cited the same actuator and another tells us it is a distinct structure. And then some mechanical and your actuator is narrower and more defined and less indefinitely than the actuator. Okay. Okay. All right, but, Tom. Of course, I'll leave my comments to the traditional cross-pure. The indefiniteness argument applies both to the term mechanical and your actuator if it's read to be an independent corresponded structure. As well as the term conventional timing system generating control signals in any number of well-known ways. The testimony from business owner expert Dr. Boudre is that that conventional timing system can include a range of structures, including integrated circuit, 555-timer chip, solid state integrated circuit. No moving parts whatsoever. You said that in a separation on one end. Did the court construe those terms? The court construed the act of assembly term to include requirement for timing system. Okay. Did the court construed signal or timing system? The court, in a sense, I think the court did because he included timing control signals within the claim constructing the course on a structure. And the question then becomes, well, what does control signal mean? In the court, what adds its way in its claim construction order to provide the context of what that means, and that's about 828. For the court specifically said that control signals are generated by a timing system operating in synchronism with both a cyclical motion at the holder conveyor and cyclical motion at the Pitting Night Assembly. So it's to be useful to cause the operators to open briefly and then reclose the holders of the pockets, and then this is critical. The court had to house us at appropriate times during the Pitting Cycle. So I believe the court did, in a time construction order, make clear that these control signals aren't just any control signals. They're ones that are useful because the pockets are open and closed, depending on where the position of the knife is moving in the up and down direction. Then you can't, that'd be our unit on the present, but I don't want to necessarily do that. I would like to answer questions. That's what the court did with respect to control signals. And the testimony from Dr. Bowser is that timing system and the control signals associated with them to be anything from a rotating metal bar connected to the system. So I would like to answer questions to a serval worker on the one end and an integrated circuit on the other. And I submit that under this court jurisprudence in Virgo and Biomidino and others, that that is too wide and too disparate a group to be sufficient to satisfy requirement of finding clear notice on what the scope of the claim is when we're under 112 Paragraph 6. So that's a violation of 112 Paragraph 2. It's not definite. It's clear, in my view, R view that this is far more indefinite than the claims that were invalidated at Virgo and Biomidino. All right. Thank you. Thank you.

The United States Court of Appeals for the Federal Unification is now open at discussion. Dr. H. Lee, you have a seat. Please. Good morning, ladies and gentlemen. We have five cases on the DACA this morning, one of which is submitted. The first four are being argued. The first argument today is this incorporation versus Fadi. Did I pronounce that correctly? I was about to ask you today. Today. DACA number 13, 12, 16. I understand that each of you want to reserve five minutes for rebuttal as it relates to the appeal and the respective cross appeal. Is that correct? Yes, Your Honor. Okay. All right, Mr. McFarlane. Good morning. May I please the Court? I'd like to focus on two specific errors that we believe are the district court committee that granted somebody judgment. That the defendant's do not, is the French claims five and claims five was the 9-4-9 pattern. The first error involves the claim limitation active assembly. And specifically as it was construed in the summary judgment order and the types of actuators that are included in the scope of that means plus function claim limitation. Now, the specification discloses three alternative and modem of that active assembly and the actuator included in it. It solidifies your actuators, numerically driven actuators, and is separately mechanical linear actuators. Can I ask you just to clarify, you're not objecting to the fact that the court employed a 1, 12, 6 analysis. Correct? Correct. And you're not objecting to the construction, to the extent that you believe it existed at the time of the claim construction order. Correct. And that would include all aspects of the structure that the relatively complicated structure that the court described. Is that right? That's correct. Okay, and that includes the timing signal and everything else relating to that structure. Correct. We may argue as to those other components of the structure, but the description of those components within the construction we are not objecting. Okay. All right. I just wanted to make sure that we had a full sense of exactly what the structure is that we're working with and it's either one where the court's languages and or should be read to say including. Correct. Okay. Go ahead. And we believe that the specification clearly indicates that the disjunctive interpretation was correct. There are two places to talk about the active assembly and the types of actuators. The first is column 18 lines 50 to 59. Let me make sure just to follow up on Dr. Mally's question. You're not pressing. You actually described four types of actuators in the specification. The fourth type is just a any other. Now all other correct. If you're giving up on the all other in light of the district court's construction. This is specifically disclosed types of actuators are the three. And then the fourth category are not specifically disclosed. So we are not pressing that. So the first place it describes each and body that includes an actively driven actuator. So that's pneumatically bored by solenoid. And so from that place we have two examples of an actively driven actuator, a solenoid or an amazis. And then the next place to discuss is column 29 and sport 23 where it says in preferred embodiments each actuator 88 includes a pneumatic cylinder considered to pull or push your act 80s. So that block 88 is pneumatic cylinder. And it says in other preferred body, when it's a contract rate or 88 is a mechanical linear actuator, can figure to pull or push track 87. So it's clearly described in the separate body mass. Now let me understand something though that support it. And it's hard to describe the general function which is moving the camshafts and obviously opening the pitting system or operating the pitting system. But the court also discussed the word active and said active is functional language. So what is it about a mechanical linear actuator that is active in the absence of power source? Well, each of these actuators has a power source. One of the ordinary skill in our would understand that the pneumatic cylinder is powered by an amazis engine somewhere, pumping air into it. A solenoid at the top is powered by an electrical source somewhere. The power source in and of itself is not part of this claim limitation. Besides the case that gave the example of a toaster, you can have a pattern that is drawn to the mechanism of the toaster. It operates based on the electrical power of the toaster. But the actual electrical power of the power source is not part of the claim limitation itself. And so the same applies here. You have a mechanical linear actuator that is driven by a power source, a motor. Also the solenoid is driven by a power source. The pneumatic is driven by a power source of an electric array of air into it somewhere, a pneumatic engine somewhere. And so that power source is not strictly within that claim limitation. And so that the idea of an active assembly in the prior heart models, the pockets were opened and closed as the mechanism moved by cam tracks. And differently shaped clamp tracks were opened and closed. The pockets, the idea of an active way, there's an actuary that means that the pockets are opened and closed by the mechanism of one of these three actuators. And so we believe that those three disclosed embodiments within the specification are clearly described in the destructive and the claim construction should also be of this objective. Now if the core agrees with that construction, then there's no basis for the district court summary judgment. The district court assumed that they were mechanical in their actuators within the accused devices. And so if that destructive claim construction is correct, then it's not going to overcome some red dodging. Well, the couple of arguments that are made in response. One is that even if you accept the proposition that there's a mechanical linear actuator, there still wouldn't be infringement because there's nothing linear about the acute device. And the linearity of it can be seen very clearly on the exhibit. It's in the appendix A1268. It's a diagram shown with the adjuice product that the accused devices are. And the mechanical linear actuator, it consists of that activation rod driven by the second cramp, which is the rotary motion that drives it. And then it's that drives the connector length, which is rigidly connected to the bottom of that lever. And then the cam tract. And so it moves those cam tract horizontally. And according to the testimony of the inventor who designed that, that actually the shape of that lever was actually designed to minimize any vertical motion. It moves one half inch horizontally. And it's as it was 0.0035 inches vertically. And so it's by any level of design rule, it's almost perfectly horizontally. The magistrate judge did not address that issue correctly. That is correct. He simply assumed that there were linear mechanical linear actuators in the acute device. I'm going to grant him some rejection. Well, okay. I mean, the summary section is granted on the grounds that mechanical linear actuators are not within the scope of claim. Correct. And all infringement issues were put in the last put in the opinion, I'm not addressing any of the infringement issues. That's correct. And so that's where the mechanical linear actuator comes in. You have that linear motion that is actuated by mechanical linear actuator. And so even under the more restrictive construction that the district court put in, we actually also had evidence showing that there was infringement under that more restrictive argument because there is a structural equivalent. And I would like to focus on one bit of evidence. It was from the defendant expert, Dr. Claw. And he testified regarding mechanical linear actuators that were in his declaration that a903, the standard handbook of machine design that shows examples of mechanical linear actuators. And again, the power source is not shown in those examples because the power source is not strictly part of mechanical linear actuator. But the testimony is strictly applicable to the accused of pitchers. What he, Dr. Claw says was that you can take the power source and switch out an error as power source for an electrical power source and it will operate in essentially the same way. And so applying that to the mechanism that's shown in A1268, it shows an electric servo. And so what does testimony mean is you can take that electric servo and substitute a pneumatic motor there and it operates in essentially the same way. I'm going to give you a chance to discuss the one area on your side. I find trouble. And that is your spalliation argument. Given that the district court's abusive discretion standard, how's it an abusive discretion when what you folks did was a seed to request to delete the pictures. And yet, you had access to the material you had witnesses, they could testify. We replied in good faith with their demand that they delete those photographs and we had no notice or information that they were going to do. But how's it an abusive court's discretion? That's a high standard. And at the summer of the judgment stage, we thought that the court did not give that any weight but so ever, and that under the case law without the fetchers had given some weight. If we are to assume that your rights, that mechanical linear actuators are not just part of the claim where they would have to be driven in a solenoid or pneumatic way and they could be driven to, by some other power source, then what is your response to the court's alternative finding albeit in a footnote that if in fact that's the case, the claim is indefinite. So the claimant is indefinite. I think that the standard for indefinite is given in the bio-medido case, which is one of the cases principally lied on by the defendant that says that the specification must contain structure into the claim means and it is not a high standard. And I think from one ordinary skill in the art, the structure and the specification both for the timing system and for the second term, the timing system and mechanical linear actuator shows that they are definite from one ordinary skill in the art. As we said, Professor Bowser is one of ordinary skill in the art, the attendance expert is an mechanical engineer but he does not have access or experience in that field of art. The disco-structure for mechanical linear actuator is again the activation rod, I'm sorry, that's the accused device, but within the context of the active assembly, here's a plethora of actual structure that's disclosed, the cases that defendants rely upon. I guess that's exactly what I'm concerned about, plethora of structures. When you look at that handbook, there's all kinds of things that could constitute a mechanical linear actuator. Are you familiar with our Blackboard decision where the court specifically said the mere fact that you could figure out how to do it, it's not enough when you're in a 126th context. It's the difference between going into a park store and saying, I like a device that can turn off the lights and figure out what that is, can you design a form of how I like to buy a switch. Here in terms of what they've bought, in terms of the servo motor, in terms of the timing system, that's an off-the-shelf timing system. They've gone in and bought an off-the-shelf timing system just as anybody. The buddy case says that a commercially available vacuum sensor didn't disclose what that was, was known to one of the ordinary skill-in-yarder. They could determine what that was, they could provide an off-the-shelf. This simply says, if you're moving into the timing system as opposed to off-the-mechanical linear actuator, the timing system, all you say is it can be internally generated or externally generated, and there's lots of stuff out there. That's how broad you are. It's not that you said you could go in and buy a commercially available X. You just said you can go in and buy XYZ or D. For the mechanical linear actuator, it's a known structure as it's shown in Professor Cox exhibit that changes rather in motion to linear motion. That is a known structure. Just like an actuator is a known structure, mechanical linear actuator is a much narrower classification of structures than just overall actuator. It's such a much more specific than what an actuator would be. What about the timing system on the signal system? The timing system in the signal system again is a category of devices that Professor Bales would testify to that's well known to those ordinary skill-in-yard. The other side experts said it could be anything. Basically the fuse off of a hand grenade, a dash pot, a lighted fuse, an escape one of the more they still miss art, knows that those specific devices are not used within through process and change. So one of the more nice skill-in-yard knows the types of structures that that is, mechanical linear actuator, they can go identify as they can buy, they can pick it up the shelf. I suppose the hand grenade could process your through only on a one-time basis. All right, here I am saying you were a buttoil time I'm afraid. So we'll give you a four-minute full restore some and give you a little extra response to the extent that you need it. Good morning, and may I please the court, my name is Michael Thomas, I represent the kind of linear actuator companies in the today's office. The district court's new creation summary judgment should be affirmed for at least three independent reasons. Now before I discuss the three reasons why the court's order should be affirmed, I'd like to step back and just to moment look at this case from 30,000 feet and address how I used to be dodging. We're here addressing claim construction because the patentee missed there. Traffic claims with the term active assembly which had no- Okay, we understand from your brief how we got here and that's why we were just asking precisely what the complaint are. So why don't you tell us what you three things are? Well, the ambiguity that the plan has had created, it's led to the court's claim construction, the arguments they're now making for a different claim construction, those were waived under the Northern District Local Rules. This then advocated for a construction that was not the main plus function during the claim construction. In the Northern District there are very specific local rules outlined in great detail, the sclozures of claim construction, counter-disclosures, deposition and discovery that occurred. Are you saying that the district court rules would apply in the following way that if I didn't think that the claim was written in means of a function format. And the district court found nonetheless that it was means plus function format that I have no recourse by way of arguing that the district court assuming the district court was right that the district court misapplied the 112th 6th analysis once he got there. I think under this court jurisprudence, particularly additional lending, the recourse, and you're going to tell me yes or no, I'm actually asking for a question whether that is your argument. Yeah, the argument is that they don't have that recourse to argue a different means plus function. Their recourse is to argue the original claim construction that they preserved on appeal at claim construction before the front. And so if the district court rejects their non-1126 argument, it doesn't matter what the district court George does in handling the 112th 6th, they have no argument as to no complaint that they can make to this court as to the mishandling of the one. And that is our position as well to argue the position that they originally advanced at the trial court. Now the one thing. Let me ask you a couple of questions too. I find this disturbing. Two things. One, it page three of your opening brief of your brief. You say, plain and appellent, this end corporation holds, but does not practice assertive claims than you want. Why are you telling us it doesn't practice? Because they represent the big deal elsewhere in the papers. Right. That leads me to your claim on page nine using language like blatant misrepresentation. And, let's see, false assertion. All right. And I find that very disturbing. Have you taken action before the bar or about this time of Sunday? I know you are. Don't you think you're obligated to if you believe a fraud has been perpetrated on the court? I don't know that I am. I know it's biobligation to the map to for my client to bring those misrepresentations to this court's attention. And for example, the one reference on page nine or 10 of our opening brief. This and I look at it closely. I'm very disturbed by your use of this language in this context. I'm pretty much disturbed. All right. Assuming that we disagree with you on the waiver because it does feel like the only moving target we had here was the district court's approach to this case. Right, whether it was right or wrong, it clearly was a moving target that surprised everybody. He didn't ask for briefing on 126 and the original at least original construction seems to have had a disjunctive use of grammar. So and that he provides that construction. So assuming we're not on waiver, what are your merits points? Well, number one, the construction was correct. That mechanical linear actuator is a description of what something does, not what it is. That is why there's so many different types of structures, not specific class structures, but a wildly disparate array potential devices that could under this definition fall within scope of mechanical linear actuator. But there are many devices, mechanical devices, that whose names are a description of what they do. A screwdriver, for example. What does it do? It drives screws. A brake. What does it do? It breaks. More motion. I don't think that it is unusual at all for mechanical devices to have names that are described. Their function. And here we have, as I think your opposing counsel pointed out, a page from a standard mechanical engineering handbook that has depicted mechanical linear actuators. And I think there's even a Wikipedia page referenced by one of the experts that describes the devices known as mechanical linear actuators. Why isn't that enough? Actually, all of those references refer to linear actuators except the Wikipedia reference. The only one that's worth it. But the word mechanical doesn't re-ext the critical part of the linear actuator, right? And that's a description of what something does. It means for generating linear displacement itself. What evidence did you introduce below that showed that one skill in the art would be unable to discern the scope of that term? What evidence did we circle out? First of all, we submitted the declaration of Dr. Klopp first. And then second, evidence below demonstrates that that is not a known discrete structure as required under 112 paragraphs six. Which of course we're applying 112, which means much particularly distinctly point out and claim the inventions. And so the evidence comes from the form of 50th-owned infringement contentions that have more than changed throughout the case. At one time, they led a single connecting route. All that self was a mechanical linear actuator. That's in their infringement contentions under the local rules, which also have changed in this case in violation of the local rules. That's one piece of evidence. Did the lower court rely on the local rules, on a violation of the local rules for purposes of its decision? The court did not because his claim constructions did not require him to address the fact that there's no... Do you think it would really be appropriate for us in the first instance to interpret the local rules and to apply some strict reading of those local rules when the district court didn't do so? Well, if the district court didn't have an opportunity to do so, and here we have new contentions that hasn't been addressed, I think the court could and its own discretion do that. I thought about that question myself. I'm not sure I know the answer. So what about the answer to Judge Wilde's question? He said, what testimony did you offer? Did you have expert testimony that said that your expert would not understand the class of structures that would fall into the rubric of mechanical linear actuators? Or did he testify that there were thousands of such structures? Or what did he say? Actually, our expert did not describe what a mechanical linear actuator is. He couldn't do that. He only described what it was. I made it earlier. This is in Vistance on Greece. They say, this is a appendix, 1109. They say, telling me, defend this expert avoids making any positive definition of a mechanical linear actuator. He never did describe what it was. How about it, 877-877-9, where I believe this is from your expert's declaration. Describing a mechanical linear actuator is a mechanical linear actuator. It causes motion between two machine elements when the motion occurs along the straight line. And my understanding is that the mechanical linear actuator causes straight line motion is confirmed by the handle. That seems to me that he's describing, he's not taking minimum, he's not taking issue with the notion that the term mechanical linear actuator would be understandable to a person's skill in the art. I think he is. He's describing only what it does, not what actually, if you ask someone, please go by a mechanical linear actuator. He actually testified to this the latest portion of his deposition at some point at any rate. If in fact, one was asked, please go out and get me a mechanical linear actuator. Of course, instead, the question was, please go out and design me one. Either way, I love that question. Thank you, Gerranger. You're welcome, because I'm looking at the standard handbook and machine design. Either way, you could get a vast array of different types of structures as opposed to a discrete structure. It's a description of what something does. But if I think of a screwdriver, I can go to Home Depot and they have a row of screwdriver. They don't have that from a mechanical linear actuator. How do we know? There's nothing in the record that I can find that says that. This is claim construction. And Vistann has offered an ambiguous term active assembly, which is then made constrained by the port. The port is unable to ascertain that this is a discrete particularized structure. And then the Vistann's jurisprudence and bio-redino and ergo, it's not specific enough. If we look actually at Vistann's own position, it says, if the port will indulge on page 36 of Vistann's repatriates, they say the following. Both parties experts testify that length regarding the meaningful actuator and mechanical linear actuator. Our expert only talked about its function, not what it is structurally. Vistann's experts, Dr. Bowser, have pined that an actuator is an electric, hydraulic, mechanical, pneumatic device, or a combination of these to affect some predetermined linear or rotational motion. And that mechanical linear actuator is an actuator as defined above that is driven at least in part by a mechanical element such as a gear threaded rod, cam, or crank. And if that definition, that is their definition of mechanical linear actuator. It doesn't even have to be linear, according to that. If you take that and grasp it into Judge Sparrow's client construction and include that set of structure, then the question becomes, what isn't mechanical linear actuator? What is the color by this planet? Everything is covered. And you write back to the same ambiguity that you started with with the term active assembly. It is everything under the sun. And that is the problem. And that is the position we face to be a better than other states. Everything under the sun? Well, everything under the sun that can actually move with tanical parts in one way or another. How about an admin? I suppose it sounds like a mechanical parts that doesn't sound like a mechanical linear actuator to me. Well, I would admit that solenoids as well as black and violators are occasionally referred to and actually are electro-wagons. Well, solenoids are driven by electro-magons. That's true. You are going to have to stop in a minute if you want any rebuttal. But let me ask you this. Both with respect to your issue regarding the timing and the signals and even to, I guess, the lesser extent with respect to the issue of mechanical linear actuators and whether that indefinite is a question of law, but it turns on underlying facts. We don't actually have any of those findings by the trial court. Wouldn't it be more appropriate for us to remand if we thought you were even had a valid argument to the district court to say if you're going to go on indefinite, we need to know why. I think with respect to the mechanical linear actuator and the conventional timing system, I think the court have the evidence and the record developed, particularly conventional timing system. But the court didn't answer that. Didn't even rule on that. That's correct, you're right. The court deferred that. He didn't have to reach that question because he found a lot of pressure. Okay, so I guess I'm trying to understand your, to the extent your cross of bills, comments on that. There's no judgment below. He didn't say it was definite. He just didn't say it was indefinite on that ground, right? That's correct, you're right. Trump or didn't rule on that. But having this in now, proper to claim construction that included indefinite terms both in the form of a timing system, as well as a. Canton linear actually we believe it's right now for this court to invalidate the time and the final point I would make is that there actually is no evidence here of. A timing system and a control signal as required by the court to claim construction in the choosing infringement by a certain independent basis finding a non infringement. But that's also not ruled out by the district court. Okay, now you have gone way over. So what we're going to do is we will give you three minutes. We'll give you four minutes. Thank you. Does this just in practice this? The this and it's been in the business. I see what you've got. They do not practice this specific claim. They practice other claims included in this. What's your answer to my question about whether if we have any questions regarding indefiniteness, it should be something that needs to be referred back to the trial court in the first instance of fact. I would not disagree with that. I think there is some evidence in the record, but there was not the subject of the trial court's decision. I think there is sufficient evidence in the record to show that these are not indefinite. The mechanical inter actuator was discussed by experts, both experts could describe it to point to textbooks that show what it is shown with the information was. And so I think there is sufficient evidence in the record to show that it is not indefinite. And what's the evidence in the record to show that there is actual timing that the acute devices respond to a timing signal? There are two bits of what the timing signal was saying to be internally generated or externally generated. And so in terms of the classical, mechanical control signal, the motion of the actuator on itself can be considered that control signal. And then alternatively, in our infringement contentions on the motion, we said that the control signal was coming out of the survey drive, the drives, the timing crank are the control signals. And so there is evidence that that control signal was in the record. Which is a principle argument, the one you just reiterated first, is that control signal does not need to be an electric control signal. It can be a mechanical signal. CRED is a bump on a rotating shaft or something like that. CRED is in terms of... Even though it's not readily adjustable. CRED. And your opposing counsel in this brief says, well, adjustability is an important aspect of that. And therefore that's why your type of control signal is not... Your mechanical signal is not an in-scope of claims. Well, the adjustability is not within the climate, just as it has to move within synchronism with the other devices. It doesn't say that synchronism has to be adjustable or it makes the law faster or changes, just says it's in synchrony. And so with that, mechanical signal that is in synchrony. And I suppose it is adjustable by shifting the machine. It's adjustable by shifting the machine correct. And then just to provide... My colleague, my opposing colleague has said, we do not believe there's been any waiver every hour. We made on appeal. We made virtually work for work in a post-missumary judgment. And in terms of mechanical and your actuator, you can buy one. We've submitted it to 2136, 2131, a catalog that shows various mechanical and your actuator's that you can buy. And I think that in conjunction with the case books that show you what mechanical and your actuator is. It's not a single known structure, but it is a defined category of structures that under cases like BUDDY is sufficiently relevant to support a means of function claim under 112 purposes. And again, it's not an unbounded claim. It's not a magnet. It's a mechanical device, as opposed to an electronic or air compressor. It's a compression that's a narrow category of devices. Actuators, broad category, mechanical and mechanical actuators, narrow category, and mechanical and mechanical. And so there are cases that we cited the same actuator and another tells us it is a distinct structure. And then some mechanical and your actuator is narrower and more defined and less indefinitely than the actuator. Okay. Okay. All right, but, Tom. Of course, I'll leave my comments to the traditional cross-pure. The indefiniteness argument applies both to the term mechanical and your actuator if it's read to be an independent corresponded structure. As well as the term conventional timing system generating control signals in any number of well-known ways. The testimony from business owner expert Dr. Boudre is that that conventional timing system can include a range of structures, including integrated circuit, 555-timer chip, solid state integrated circuit. No moving parts whatsoever. You said that in a separation on one end. Did the court construe those terms? The court construed the act of assembly term to include requirement for timing system. Okay. Did the court construed signal or timing system? The court, in a sense, I think the court did because he included timing control signals within the claim constructing the course on a structure. And the question then becomes, well, what does control signal mean? In the court, what adds its way in its claim construction order to provide the context of what that means, and that's about 828. For the court specifically said that control signals are generated by a timing system operating in synchronism with both a cyclical motion at the holder conveyor and cyclical motion at the Pitting Night Assembly. So it's to be useful to cause the operators to open briefly and then reclose the holders of the pockets, and then this is critical. The court had to house us at appropriate times during the Pitting Cycle. So I believe the court did, in a time construction order, make clear that these control signals aren't just any control signals. They're ones that are useful because the pockets are open and closed, depending on where the position of the knife is moving in the up and down direction. Then you can't, that'd be our unit on the present, but I don't want to necessarily do that. I would like to answer questions. That's what the court did with respect to control signals. And the testimony from Dr. Bowser is that timing system and the control signals associated with them to be anything from a rotating metal bar connected to the system. So I would like to answer questions to a serval worker on the one end and an integrated circuit on the other. And I submit that under this court jurisprudence in Virgo and Biomidino and others, that that is too wide and too disparate a group to be sufficient to satisfy requirement of finding clear notice on what the scope of the claim is when we're under 112 Paragraph 6. So that's a violation of 112 Paragraph 2. It's not definite. It's clear, in my view, R view that this is far more indefinite than the claims that were invalidated at Virgo and Biomidino. All right. Thank you. Thank you