trials@uspto.gov
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`571-272-7822
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`IPR2015-00774, Paper No. 34
`IPR2015-00958, Paper No. 34
`May 24, 2016
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`J SQUARED, INC. d/b/a UNIVERSITY LOFT COMPANY,
`Petitioner,
`vs.
`SAUDER MANUFACTURING COMPANY,
`Patent Owner.
`- - - - - -
`Case IPR2015-00774
`Case IPR2015-00958
`Patent 8,585,136
`Technology Center 3600
`Oral Hearing Held: Thursday, April 21, 2016
`
`
`Before: LINDA E. HORNER, JOSIAH C. COCKS, and
`JAMES A. WORTH, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Thursday,
`April 21, 2016, at 2:00 p.m., Hearing Room A, taken at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`REPORTED BY: RAYMOND G. BRYNTESON, RMR,
`
`CRR, RDR
`
`
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`571-272-7822
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`IPR2015-00774, Paper No. 34
`IPR2015-00958, Paper No. 34
`May 24, 2016
`
`
`
`
`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`J SQUARED, INC. d/b/a UNIVERSITY LOFT COMPANY,
`Petitioner,
`vs.
`SAUDER MANUFACTURING COMPANY,
`Patent Owner.
`- - - - - -
`Case IPR2015-00774
`Case IPR2015-00958
`Patent 8,585,136
`Technology Center 3600
`Oral Hearing Held: Thursday, April 21, 2016
`
`
`Before: LINDA E. HORNER, JOSIAH C. COCKS, and
`JAMES A. WORTH, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Thursday,
`April 21, 2016, at 2:00 p.m., Hearing Room A, taken at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`REPORTED BY: RAYMOND G. BRYNTESON, RMR,
`
`CRR, RDR
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`ON BEHALF OF THE PATENT OWNER:
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`THOMAS N. YOUNG, ESQ.
`MICHAEL M. JACOB, ESQ.
`Young Basile Hanlon & MacFarlane P.C.
`3001 West Big Beaver Road, Suite 624
`Troy, Michigan 48084
`248-649-3333
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`PHIL BONTRAGER
`President & Chief Executive Officer
`Representative for Sauder Manufacturing Co.
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`SCOTT A. McKEOWN, ESQ.
`Oblon, McClelland, Maier & Neustadt, LLP
`1940 Duke Street
`Alexandria, Virginia 22314
`703-413-3000
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`WILLIAM F. BAHRET, ESQ.
`Bahret & Associates LLC
`320 North Meridian Street, Suite 510
`Indianapolis, Indiana 46204
`317-423-2300
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`P R O C E E D I N G S
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`(2:00 p.m.)
`JUDGE COCKS: Please be seated. Good
`afternoon. Welcome to the Board.
`This is a consolidated oral argument for two
`proceedings, IPR2015- 00774 and IPR2015- 00958, both
`involving Patent 8,585,136.
`Let's begin with introductions. Would counsel for
`Petitioner please introduce themselves?
`MR. McKEOWN: Sure. Scott McKeown of Oblon,
`lead counsel for Petitioner, University Loft.
`To my right here is --
`MR. BAHRET: Bill Bahret, Bahret & Associates,
`also for Petitioner.
`JUDGE COCKS: Thank you, counsel. And for the
`Patent Owner, please?
`MR. YOUNG: For the Patent Owner, lead counsel
`is Thomas N. Young, and I'm accompanied by Michael Jacob
`and the Chief Executive Officer of the Patent Owner, Sauder
`Manufacturing Company, Mr. Philip Bontrager.
`JUDGE COCKS: Thank you, Mr. Young. As we
`set forth in our trial hearing order, each side has 60 minutes of
`argument time. Petitioner will go first, as they bear the
`burden of unpatentability, and may reserve rebuttal time.
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`The Patent Owner will then argue their opposition
`to the case, and the Petitioner will use their rebuttal time after
`that.
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`That being said, I believe the Petitioner -- actually
`wait a minute. We received an e- mail from the Patent Owner.
`Has that been resolved?
`MR. YOUNG: I believe it has.
`JUDGE COCKS: So you withdraw those
`objections?
`MR. YOUNG: Yes.
`JUDGE COCKS: Thank you. Mr. McKeown, I
`think you were going to speak, and you may proceed.
`MR. McKEOWN: Good afternoon. As the Board
`is aware, we're talking about the 774 and 958 proceedings
`today, both directed to the '136 patent. To the extent that I
`begin talking about one or the other proceeding, I will make
`sure that I make it clear so that the transcript is clear.
`But generally speaking we're talking about claims
`1, 4, 6 through 9 and 12 of the 774. Any other claims will
`stand or fall with those if they have not been separately
`argued.
`
`As to the 958 we're talking 1, claim 1, claim 6
`through 9 and 12. No other claims were separately argued.
`The Patentee in this case well understands that its
`claims are simply too broad as written. For that reason, the
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`trial discussion has been about other things, whether it is
`commercial products, safety requirements, design goals, all of
`which is a story to infuse what is essentially 50- plus
`additional terms to these claims that are not recited in the
`claims. And the argument has been, well, the specification
`shows these features so, therefore, the claims require them.
`That's not the way that the law works. Had
`Patentee wanted to remodel their claims as drastically as they
`are proposing here, they should have submitted an amendment.
`There is no way to remodel these claims in the manner that is
`proposed just because of the Patentee's say -so. So what am I
`talking about?
`JUDGE COCKS: Counsel, if I could interrupt
`
`briefly?
`
`MR. McKEOWN: Sure.
`JUDGE COCKS: Did you reserve rebuttal time?
`MR. McKEOWN: Yes, I will reserve a half hour.
`MR. McKEOWN: So what am I talking about?
`This is Exhibit 1022. It is not really coming up clear on the
`ELMO but it is in the record. Your Honors can pull it up if
`you would like.
`But this was a clean copy of claim 1 originally that
`I gave to the Patentee's declarant, Mr. Harting during his
`deposition just to try to follow along with the various features
`and limitations that the Patentee was arguing that should be
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`infused into these claims. And I will just walk through them
`briefly. It is probably easier on my eyes if I pick it up.
`But rather than a chair, the Patentee is arguing that
`its chair as broadly stated is actually limited to an application,
`that is, a desk or task application.
`JUDGE COCKS: Counsel, what is that exhibit
`number that you are reading from?
`MR. McKEOWN: It is 1022. Your Honor, I don't
`know that you can really see it up there, but there it is.
`So the argument is that the chair is
`application- specific. There is arguments throughout the record
`that the chair needs to be limited to a certain type of user,
`whether it is student age, college age, age 12, age 8. It varies
`depending upon which aspect of the record that you are
`reading.
`
`The base portion has been argued as being armless,
`backless, smooth and flat surface with appropriate legs. The
`releasable, releasably engaged language is argued as meaning
`locked together in a receptacle. This is despite the fact that
`receptacle is recited separately in claim 3 and locked together
`doesn't appear in the claim.
`Further down we have using a receptacle latch and
`claw as to the coupling. The latch is recited separately in
`claim 6. The claw was deleted from the claims prior to this
`patent issuing.
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`Further down we have language that was crossed
`out of the claim. "Or alternatively" is now being construed as
`"as well as." And then we have a couple asterisks in this
`exhibit. The first asterisk was because I guess the declarant
`didn't want to write all of the wording that he had previously
`provided in his declaration.
`So there is the entirety or virtually the entirety of
`paragraph 3 and page 7 of Mr. Harting's declaration that he
`requires as being part of the claim. And then towards the end
`we have the double asterisk which is the legs being below the
`seat and permanently attached. Again, none of this stuff is in
`the claims as written.
`So essentially what the Patentee has argued
`throughout trial is not the claims that were instituted but
`altogether different claims.
`JUDGE HORNER: How should we construe the
`term "saddle"?
`MR. McKEOWN: The saddle is a mount.
`JUDGE HORNER: A mount.
`MR. McKEOWN: Simply a mount point.
`JUDGE HORNER: And where do you derive that
`particular definition from? What should we look to for that
`definition?
`MR. McKEOWN: Let me give you some context.
`So there is a general description of the saddle in column 7. It
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`is talking about a generally planar member. And then there
`are some further details about the saddle. And that's
`separately recited in claim 3 which is not part of the trial. So
`that's where we come away with the conclusion that a saddle is
`simply a mounting point. And the reason it is called a saddle
`is there is a seat on top and somebody sits there.
`JUDGE COCKS: Does the patent actually say
`mounting point, that language from the patent itself?
`MR. McKEOWN: I don't know that the word
`mounting point per se appears anywhere, but in context that's
`the functionality that the saddle is providing.
`And, as I said, the additional features that the
`Patentee has argued are separately recited in some of the
`dependent claims. So presumably the independent claims is
`broader under the Doctrine of Claim Differentiation.
`JUDGE WORTH: Let me ask you one more
`question about that. It sounds from your proposed definition
`there that you are kind of claiming mount in a combination of
`modular components.
`And so does the construction depend on whether
`the parts are apart or together or in any other particular
`orientation?
`MR. McKEOWN: We're not advancing any
`dependent construction based upon the orientation. The saddle
`serves as a purpose whether it is integrally formed or it is just
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`sort of -- is a name for that component based upon its
`function.
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`So essentially what we're talking about is argument
`by amendment of, as I said, 50- plus claim terms, a lot of
`which are relating to intended use, some of which are relating
`to users. There is no users even mentioned in the
`specification.
`So these positions that are being advocated here,
`they are just legal impossibilities. There is no explanation as
`to why the claims should be limited to the figures and the
`embodiments of the specification contrary to Federal Circuit
`law other than the fact of, well, because we say so, which sort
`of gets us into the witnesses themselves.
`So how could they take these positions that are so
`contrary to the law? And that basically distills down to the
`witnesses are the -- is the Patentee, essentially.
`We've got three witnesses, Mr. Bontrager who is
`here today is the CEO of the Patentee; Mr. Warncke who is the
`inventor on the patent , and then we have Mr. Harting who is a
`business partner of the Patentee and receives ongoing royalties
`from any products that are covered by this patent, which I
`think was 4 percent, which is in the deposition transcript. So
`everyone is biased, plainly biased.
`In addition to that, during the depositions it
`became clear that these claim constructions that were proposed
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`by the Patentee's declarants did not even include the intrinsic
`record. None of them had reviewed the prosecution history.
`So it is not our burden to argue what the claim construction
`would have been had they done the right job.
`We're just pointing out that they didn't do the right
`job. It is an improper claim construction. So aside from the
`bias, this is just incompetent testimony.
`JUDGE WORTH: So are you arguing that
`declaration testimony is entitled to less weight or simply not
`more weight than a normal declaration?
`MR. McKEOWN: I think it is definitely entitled to
`less weight given the bias and also given the analysis is
`incomplete. In my view it should be given zero weight, but
`that's up to the Board.
`JUDGE WORTH: And is there any
`cross-examination that is relevant that you would like to direct
`us to?
`
`MR. McKEOWN: That would be at pages 1 and 2
`of the reply. I point out all of these issues where we talk
`about where the various constructions are coming from.
`I should mention that when I questioned the three
`witnesses -- this is Mr. Harting's construction. The other two
`disagreed with it. Some added terms. Some took terms away.
`So that's on pages 1 and 2 of the response is that
`explanation, and then in addition to that is an explanation as
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`to none of them reviewing the intrinsic record. So those
`citations and that discussion is the first two pages of the
`response.
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`So at bottom what we're talking about here is an
`argument that is look at my specification, look at my
`commercial products. They don't look like the prior art even
`though this is not a design patent case. And the specification
`has details that is not in the various pieces of prior art.
`But that's not what we're here for. We're here for a
`trial of the claims, and it is the claims as issued. And if you
`want to argue that they mean something completely different,
`there better be a very good reason for that. And we just don't
`know what that is other than, well, for example, the figure X
`which shows integral rocker legs, therefore, the legs in my
`claim must mean integral.
`That's not how patent law works and there is no
`explanation as to why we would ignore the case law here.
`Again, all of these constructions are simply impossible.
`JUDGE HORNER: With regard to dependent claim
`4, which recites the base legs must extend generally arcuately
`downward from, and then it goes on to recite various portions
`of the chair. I believe in your reply you asserted that Patent
`Owner had improperly incorporated underside in the claims.
`How do we interpret downward from if it is not
`from the underside?
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`MR. McKEOWN: Well, I think in the Institution
`Decision the distinction was made between what is going on in
`this patent and how it has been claimed in other patents, which
`in other patents they have said beneath, and the Examiner has
`accepted that as meaning only below a certain point.
`JUDGE COCKS: What do you mean by other
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`patents?
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`MR. McKEOWN: Related continuation patents
`that are cited.
`JUDGE HORNER: But I think in the decision on
`institution we were interpreting positioned below, which is in
`claim 1.
`
`MR. McKEOWN: Right.
`JUDGE HORNER: In this case we're talking about
`claim 4 which is describing with more specificity the base legs
`extending generally arcuately downward from a lower portion.
`MR. McKEOWN: Right. And I guess the point
`there is that that claim as broadly drafted would encompass
`some point on the lower portion. It is not specifically or
`explicitly recited where that point is.
`Does that answer your question?
`JUDGE HORNER: Yes, it does. Thank you.
`JUDGE WORTH: Let me ask a follow-up, if that's
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`okay.
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`So if there is similar language but not exactly the
`same language that stem from which the claim depends, and
`the canons of claim construction are not inexorable, as a
`general matter, but according each word some meaning is there
`additional shading in the language given by the words or terms
`that Judge Horner was pointing to in dependent claim 4 that
`would be additional on top of that independent claim 1?
`MR. McKEOWN: Let me make sure I'm looking at
`claim 4 here.
`JUDGE WORTH: So Judge Horner was pointing to
`the words "wherein a first of the two base legs extends
`generally arcuately downward from a lower portion."
`MR. McKEOWN: Uh-huh. I don't know that that
`language adds anything to claim 1. There is certainly other
`detail in terms of the positioning of the legs themselves in
`claim 4, meaning they're on opposing sides.
`But I think it is consistent with the language that is
`in claim 1, that there is no fixed point. We're just talking
`about a general direction relative to the seating portion, if that
`answers your question.
`JUDGE COCKS: Counsel, let me ask you, do you
`really mean that, that it does not add anything to claim 1?
`Surely that's not what you're saying.
`MR. McKEOWN: Claim 4 adds something. But
`what I'm saying, that something is not the directional
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`characteristics of the legs. It is the fact of where they are on
`opposite sides, which I don't necessarily think is called out in
`claim 1.
`
`So that was the discussion in the record primarily
`of claim 1. Claim 12 is a little bit of a different discussion, a
`different claim terminology, more importantly has
`means-plus- function language.
`And as the Board pointed out in the Decision to
`Institute, the manually operable means is the latch. And how
`do we know that? Because it is the only structure in the
`specification that is described as manually operated. It is the
`only structure that is linked to a release operation in the
`specification.
`The argument of the Patentee is that it needs to
`include the claw. And their primary argument there is, well, if
`you take the claw out, the chair doesn't work. So if you take a
`component out of our commercial product it doesn't work as
`well.
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`That's an engineering principle. That's not a legal
`principle. The way means- plus- function claims are interpreted
`is what is the function necessary or, excuse me, what is the
`structure necessary to perform that function, not what is all of
`the parts you need for this device, whatever it is, to work for
`its intended purpose.
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`For example, you know, the cell phone in my
`pocket, if I claimed it I would have a means for displaying. If
`I take the battery out, the display doesn't work. That doesn't
`make the battery part of the means for displaying. It is what
`structure is necessary to perform that function.
`And so we're confusing throughout this record this
`idea of engineering principles and patent law. We're here
`today to talk about a claim. We're not talking about a broad
`claim that covers some complex product or a different product
`and saying, well, the two of them have to be the same. That's
`not the conversation here.
`The Patentee decided -- sorry?
`JUDGE WORTH: Oh, please.
`MR. McKEOWN: The Patentee decided to draft
`their claims broadly.
`JUDGE WORTH: What is the function that is
`relevant here?
`MR. McKEOWN: For claim 12?
`JUDGE WORTH: Right, for your argument that
`the latch does not include --
`MR. McKEOWN: Sure. So the function that's
`recited is, I think, towards -- there is a third element of the
`claim: Manually operable means for releasably engaging said
`chair to said base portion. So it is the releasably engaging of
`structures that is the function.
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`JUDGE WORTH: And the claw is not necessary
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`for that?
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`MR. McKEOWN: It is not necessary for the
`release, the engagement, which is the mating. The actual seal
`is structure. They didn't claim this as means for securing, or
`means for engaging. They said manually operable means for
`releasably engaging.
`The only structure in the spec is the latch. All of
`the witnesses agree that nobody manually manipulates the
`claw. So it can't be the claw.
`JUDGE WORTH: So it sounds like you are
`focusing on the word releasably.
`MR. McKEOWN: That's correct.
`JUDGE WORTH: Does that -- why does it only
`say engaging?
`MR. McKEOWN: If it was means for engaging we
`would have a different conversation, but releasably refers to
`the manner of the mating. It doesn't refer to the actual seal.
`That's something different.
`So this is functional language about how parts
`come together. They are not fixed. They are releasably
`engaged.
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`JUDGE COCKS: Counsel, let me ask you, I'm
`looking at column 5 of the patent, this is lines 24 through 26,
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`and it says "the claw 142 will function so as to releasably
`engage with a saddle of the base."
`Isn't that a releasable engagement function
`attributed to the claw?
`MR. McKEOWN: No, it -- well, I take that back.
`They do use the same language, releasably engaged,
`throughout this patent for a variety of structures.
`But if you look at, for example, column 6, the first
`sentence there: The latch defines a handle or actuator with
`which a user may actuate or open the latch rotating the latch
`about the pivot and generally away from the frame lower
`portion to release the chair and the base portion.
`So that is the release function that is tied to that
`structure. But more importantly, we know the structure has to
`be manually because manually is in the claim and we have to
`give weight to the word manually.
`The witnesses agree that nobody manually
`manipulates.
`JUDGE COCKS : So that manually is there, that
`excludes the claw, so what if manually operable is not there,
`would that -- and the same function after the means explained
`the claim?
`MR. McKEOWN: Sure. So assuming manually
`operable is not there, I would say the releasable engagement is
`still just that structure necessary to release the union, whether
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`you are popping them open or closing them. It is that
`structure that provides the union.
`Now, it could be welded together or fixed together
`or glued together. That wouldn't be a releasable engagement.
`The other structure relates to, you know, securing the parts
`together. It is not the manner by which you separate them or
`join them together. The releasable part is the spring- loaded
`latch.
`
`JUDGE COCKS: But aren't you pulling away from
`what you just said before about how manually operable
`worked? I think you just said that it actually doesn't matter.
`MR. McKEOWN: Right, I was assuming in your
`hypothetical that manually was not in the claim. So I think
`manually characterizes the possibility of structures. It has to
`be manually operable by the plain language of the claim.
`But I also think, if manually were not there,
`releasably engaging is not securing parts together. It is just
`the manner in which they are separated and released.
`The hardware that is necessary to keep them
`together, that is something different. That would be means for
`securing. We're talking about engaging and disengaging.
`There are a lot of different ways that you can do that.
`And the patent reiterates in several portions that
`we can't limit this specification to any specific arrangement of
`the claw. So it was the decision of the Patent Owner to draft
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`it broadly, to characterize the means as manual, and that's the
`latch.
`
`JUDGE WORTH: You did mention in a different
`context the prosecution history. Are you relying on the
`prosecution history for your construction of not including the
`latch -- sorry, not including the claw in that structure?
`MR. McKEOWN: No, Your Honor, I don't think
`there is any discussion of the means- plus- function claim in the
`prosecution history.
`We are just going by a straightforward review of
`what function, the release function, is linked to the latch and
`the latch is the only structure described as manual in the
`specification. And, again, the Patentee's own witnesses have
`made clear that the claw is not manipulated manually.
`JUDGE HORNER: Does it make a difference
`that -- I understand the Patent Owner's position to be that the
`way we should read this is that it is talking about engagement
`of the chair to the base and that that is when you put the chair
`on top of the base, not when you disengage it.
`Your argument seems to be focused on the point of
`disengagement and the latch being moved to disengage the
`chair.
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`And I note in the last amendment filed before this
`patent was allowed they changed the language from manually
`operable means for releasably engaging said chair from said
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`base to manually operable means for releasably engaging said
`chair to said base.
`Does that inform us as to the correct meaning of
`this language?
`MR. McKEOWN: I think it is the same issue. If
`you look at the patent at, I believe it is column 9.
`So at the top of column 9 it is this discussion of
`engaging versus disengaging where it makes clear that, well,
`in some instances you can put the chair back and open the
`latch or you can by force operate the spring.
`That doesn't make the latch any less manually
`operable. And the column 9 says the user may manually
`manipulate the latch with the first leg to the open position or
`force it closed. That doesn't change the character of the
`latches being manually operable.
`JUDGE HORNER: It's manually operable either if
`it has got a ramped surface so it ramps open on its own or
`whether you --
`MR. McKEOWN: Right.
`JUDGE HORNER: -- have to manually lift it.
`MR. McKEOWN: Right. I guess to explain it
`differently, that door over there has a manually operable
`means for releasably engaging it from the frame. Right? I can
`operate the door to open it. I can push it closed. That doesn't
`make the doorknob disappear.
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`I can make a video and I can pop off the hinges
`and show you that the door doesn't work, but that's not patent
`law. That doesn't somehow make the hinge part of the
`doorknob. It is just not the way it works. No one is manually
`operating hinges. It is the same thing.
`So just getting through the prior art briefly.
`Mackey is a 102 for the 774 proceeding. The arguments
`against Mackey rely upon these added claim limitations that
`you see on the screen.
`There is arguments that it lacks categorical
`identity. It is not a design patent case. There is an argument
`that the stool of this claim has to be backless. The evidence
`that is even submitted by the Patentee doesn't support this.
`They submit a dictionary definition that says it is
`usually backless. They submit a Google image search that
`shows chairs with backs. So the record is clear on that. And
`then they argue the remainder of these features, which I won't
`get into.
`
`But Mackey, generally speaking, is identical to
`claim 1. It is not comparing a picture of Mackey and a picture
`to a commercial embodiment that might be covered by these
`broad claims. It is what do the claims say? The claims
`generally, at least claim 1, are two pieces that are coupled
`together. One is a chair and one is a stool. That's what
`Mackey describes.
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`On the Pollack obviousness combination -- and
`we're still in the 774 discussion -- we have Pollack I and
`Pollack II that both reference each other. So the combination
`is pretty straightforward as the inventor has proposed this
`combination himself. The Patentee has said that the
`combination is plausible.
`They just point out what they call complications
`which are just straightforward adaptations of these teachings.
`To be clear, we have not proposed any obviousness
`combinations that are arguing bodily incorporation. That's not
`the law.
`
`So, again, the Pollack distinctions also go back to
`the age of the users and all of these other features that come
`from the specification.
`JUDGE WORTH: Could you elaborate on that
`bodily incorporation?
`MR. McKEOWN: Well, I'm not sure I follow their
`arguments but, for example, they say, well, if you modify
`Pollack you would have to take off bumpers to affix it to this
`lower table.
`There is no -- let's assume you had to do that.
`That's what one skilled in the art necessarily would do to
`combine something.
`So, you know, this is just -- this is the way
`obviousness combinations work. If you are aware in the art
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`that you can put a rocker on top of a table stool, then you do
`that. The fact that you have to move a screw here or there --
`and they sort of characterize it as it violates their two parts
`rules.
`
`So they are arguing that this claim is limited to
`just two parts because it says combination. It also says
`comprising. So, again, these are the arguments they are
`making. I can't really explain them.
`So switching to the 958 proceeding --
`JUDGE COCKS: Counsel, before you do that I
`have one question about the Pollack ground. I see that that
`ground was applied to claim 12.
`What if we were to disagree with you and think
`that the claw is part of the manually operable means for
`releasably engaging. What would that do to that ground?
`MR. McKEOWN: Well, I think if you look at
`Pollack there is a claw. Do you have a copy of that? I want to
`say it is element 76, which is a bracket that keeps the chair
`from moving in an upward orientation once the latch is
`engaged. So it is essentially a piece of metal that claws out
`over another metal strut.
`So assuming that the claw were required -- and it
`is, 76 in figure 2 -- that certainly would qualify, generally
`speaking, as to what a claw is.
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`JUDGE COCKS: Let me ask you, is that an
`approach you took as a part of your briefing?
`MR. McKEOWN: We did not. A claw was not
`construed by either party. And I would also mention the term
`claw was deleted from the claims prior to this patent issuing.
`So 76 and 77 in figure 2, so they are both basically
`two pieces of metal that arch over and limit the movement of
`the rocker.
`JUDGE COCKS: Counsel, can you expand on what
`you just said about claw being eliminated from the claims?
`Was it part of claim 12?
`MR. McKEOWN: It was -- no, Your Honor. I
`believe it was originally in claim 2 and as was the latch, if I'm
`not mistaken, the position of the latch. And those were
`cancelled from claim 2 prior to issuance.
`JUDGE COCKS: So what are you asking us to
`
`infer?
`
`MR. McKEOWN: Well, I think the inference there
`is that claw was never part of the independent claim. It was
`only presented as a dependent claim and then it was cancelled
`from that claim prior to issuance.
`So it just guides, I think, anyone looking at the
`record as to what was intended as to the scope of claim 1.
`JUDGE COCKS: Does that somehow inform us of
`the scope, what is covered by claim 12?
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`MR. McKEOWN: I'm sorry, can you repeat that?
`JUDGE COCKS: Does that inform us about what
`is covered by claim 12?
`MR. McKEOWN: No. If we're talking about claim
`12, obviously that's a different discussion. That's a
`means-plus- function analysis, which we've discussed.
`JUDGE COCKS: Counsel, you have 30 minutes
`remaining. You are into your rebuttal time.
`MR. McKEOWN: Okay. I'm only going to go
`another five m
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