UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`COASTAL INDUSTRIES, INC.,
`Petitioner,
`
`v.
`
`SHOWER ENCLOSURES AMERICA, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00573
`Patent 7,174,944 B1
`____________
`
`Record of Oral Hearing
`Held: October 3, 2018
`____________
`
`
`
`
`
`
`
`
`
`
`Before MICHAEL W. KIM, CARL M. DeFRANCO, and ALYSSA A.
`FINAMORE, Administrative Patent Judges.
`
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`COASTAL INDUSTRIES, INC.,
`Petitioner,
`
`v.
`
`SHOWER ENCLOSURES AMERICA, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00573
`Patent 7,174,944 B1
`____________
`
`Record of Oral Hearing
`Held: October 3, 2018
`____________
`
`
`
`
`
`
`
`
`
`
`Before MICHAEL W. KIM, CARL M. DeFRANCO, and ALYSSA A.
`FINAMORE, Administrative Patent Judges.
`
`
`
`
`Case IPR2017-00573
`Patent 7,174,944 B1
`
`APPEARANCES:
`
`ON BEHALF OF PETITIONER:
`JOSEPH P. KINCART, ESQUIRE
`Rogers Towers P.A.
`1301 Riverplace Boulevard
`Suite 1500
`Jacksonville, Florida 32207
`
`--and--
`
`ANDRES F. ARRUBLA, ESQUIRE
`Coastal Industries Inc.
`3700 St. Johns Industrial Pkwy W
`Jacksonville, FL 32246
`
`
`ON BEHALF OF PATENT OWNER:
`RYAN M. FOUNTAIN, ESQUIRE
`420 Lincoln Way West
`Mishawaka, Indiana 46544
`
`
`The above-entitled matter came on for hearing on Wednesday,
`
`October 3, 2018, commencing at 1:09 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2017-00573
`Patent 7,174,944 B1
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`P R O C E E D I N G S
`- - - - -
`JUDGE KIM: Welcome, everyone. This is a supplemental oral
`hearing for IPR2017-00573. I'm Michael Kim. To the right I have Judge
`Finamore and on the phone we have Judge Carl DeFranco.
`So I believe each side has 30 minutes in this case. Petitioner will
`have most of the burdens. You will go first. You can reserve some time for
`rebuttal if you would like, and Patent Owner's counsel will proceed with
`their entirety of 30 minutes. Then, lastly, Petitioner will have a short last
`word.
`
`So with that, logistically, as you know, Judge DeFranco is remote
`and actually can't see you. So if you could just please, whenever you talk,
`especially with slides or any demonstratives or any exhibits, if you would
`just please provide the actual cite so he can -- he has access to the entire
`record. He can find it. You just have to let him know what he actually
`needs to find.
`And as far as in and out goes, if you could please -- everyone, if
`you could please reserve in and out to times when counsel is changing so
`that to be the least disruptive to the proceeding, I'd appreciate it.
`So with that, can I just get appearances starting with Petitioner's
`counsel?
`MR. KINCART: Yes, Your Honor. My name is Joseph Kincart
`and I am here on behalf of Petitioner, and I am joined by --
`MR. ARRUBLA: Andres Arrubla, Your Honor, on behalf of
`Petitioner.
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`JUDGE KIM: Welcome. And then Patent Owner?
`MR. FOUNTAIN: Your Honor, this is Ryan Fountain. I'm here
`for the Patent Owner.
`JUDGE KIM: Great. All right. Unless there's anything else,
`Petitioner, you may please come up.
`MR. FOUNTAIN: Actually, Your Honor.
`JUDGE KIM: Yes.
`MR. FOUNTAIN: I did raise some objections to demonstratives.
`JUDGE KIM: Yes.
`MR. FOUNTAIN: Should we address that first?
`JUDGE KIM: They have been considered and at this time -- you
`can address them later. However, right now we have looked through the
`slides. They seem to have the proper cites and generally seem to be fine in
`that they're part of the record. If there's any particular ones that you believe
`are outside of the record, you can bring them up during the oral argument
`portion itself.
`MR. FOUNTAIN: In that regard, Your Honor, may I reserve five
`minutes of my time for sur-rebuttal?
`JUDGE KIM: On what basis, sir?
`MR. FOUNTAIN: I perceive in the demonstratives, evidence of
`what may be new arguments. I'd like the ability to address those.
`JUDGE KIM: Why can't you do that in your regular time?
`MR. FOUNTAIN: Because my suspicion is they're going to
`address them in rebuttal exhibits, particularly with regard to pages 30
`through 34 of the demonstratives.
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`JUDGE KIM: Okay. Well, then it's duly noted that you think
`pages 30 through 34 may have new argument and so we will take that into
`consideration.
`MR. FOUNTAIN: Thank you. And one other explanation, sir, the
`board over there to my left and your right is not identical to page 2 of the
`demonstratives. There is, for example, the inclusion of the word header. I
`don't know what significance that has and I won't know perhaps until much
`later.
`
`JUDGE KIM: Understood. And, again, but you understand as we
`said, none of this is evidence. This is not evidence in the record. So as far
`as we're concerned, we're going to look at these things, but then we literally
`won't look at them again. We will only look at what's actually in the file.
`Do you understand?
`MR. FOUNTAIN: Yes, sir.
`JUDGE KIM: Okay. So with that Petitioner --
`MR. ARRUBLA: Your Honor, can I offer you guys to take a copy
`of the exhibits?
`JUDGE KIM: Sure. Thank you.
`Approximately how much time would you like to reserve for your
`rebuttal, Mr. Kincart?
`MR. KINCART: 10 minutes, please.
`JUDGE KIM: Okay. You can begin when you're ready.
`MR. KINCART: Thank you, Your Honor.
`May it please the Board. My name is Joseph Kincart and I am here
`on behalf of the Petitioner. I'd like to begin by thanking you for your time
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`Patent 7,174,944 B1
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`today. As you know, we're here to discuss the post-SAS review, the '944
`patent claims and the grounds included in the Petition that have not
`previously been considered by the Board. Towards that end, we'd like to
`highlight some key factors of the case-in-chief, mostly the law, as it applies
`to the prior art.
`A summary of the relevant law will relate to the claims and the
`structural elements and functional limitations, and the correct interpretation
`of functional limitations as to whether the prior art structure is capable of the
`claimed functional limitation. I'll also show you the structural elements
`present in the claims of the '944 patent and show you how the prior art
`includes structural elements that are, in fact, capable of accomplishing those
`functional elements.
`So if you can turn with me now to slide 8.
`In particular, the grounds and the references are listed there before
`you and so you can see that they include Comeau and, of course, Sterling
`again and Van Weelden and Jang and combinations of them. I'd probably
`like to begin with a little bit of a discussion of Comeau.
`As you know, Comeau was considered by the Patent Examiner
`during prosecution. However, the Examiner did not have the benefit of the
`additional references there, Van Weelden, Sterling or Jang, nor did the
`Examiner have the benefit of the guidance provided by the Fed. Circuit in
`Translogic and the Bettcher cases.
`And if we could proceed now to slide 9.
`The Examiner found the issued claims allowable for two primary
`reasons. We're familiar with these, but they do relate to the new grounds
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`Patent 7,174,944 B1
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`and to the unexamined claims and, of course, they include first and second
`track members remaining aligned with the header while the adjustment for
`the first and second rail members are adjusted and the second reason is first
`and second track members are recessed in the first and second panels
`respectively.
`We will show that Comeau, in fact, includes many of these things,
`especially while in combination with Jang, and also the Van Weelden in
`combination with Sterling or Jang and Sterling.
`JUDGE KIM: Mr. Kincart.
`MR. KINCART: Yes, sir.
`JUDGE KIM: Just because we don't have much time, the panel is
`more interested in the recessed limitation than the aligned.
`MR. KINCART: Very good. We can help you with that.
`Let's go to slide 2 and we may, in fact, need to use the Elmo for
`this one a little bit earlier than we meant to, but slide 2 shows the Comeau
`reference. And in addition to Comeau, I think that it's really important that
`we understand what is meant by a panel and a rail. And, of course, we're
`going to be applying the broadest reasonable interpretation during this
`interpretation. And in doing so, we had to take every reasonable
`interpretation of what those things could mean and one of those was
`provided by the inventor himself, and there's some deposition in front of you
`and I'm going to read just a very short part.
`The interchangeability in the industry of a panel, rail as a panel,
`were freely interchanged. So I can call this a rail as well, but to me it's a
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`panel, it's a rail, interchangeability of those parts. So recess of the track
`within the panel would include recessed within the rail.
`And if we turn now, again, to the Comeau which is on the panel in
`front of you, but for Judge DeFranco who's remote, you'll see it as slide 2,
`and he's actually putting it on the Elmo also. We've highlighted where I can
`make it work. The tracks here recessed into the panel.
`JUDGE KIM: Okay. So your definition for recessed from the
`District Court construction is set back from a plane?
`MR. KINCART: That is correct, sir. Thank you.
`JUDGE KIM: What is the plane we're talking about here?
`Where --
`MR. KINCART: So in this case if you were to have the plane be
`the outermost part of the panel, so that would include this rail and there's a
`piece that we fit in here, but it would go from there to there to there. And
`I'm looking at the outside corners, Mr. DeFranco, of the middle piece 324.
`And so if you look at the outermost surfaces to the left and to the right and
`then you look at the track, which clearly protrudes in further from that
`outside plane, and so it does, in fact, become recessed.
`JUDGE KIM: Now I'm going to channel Patent Owner that there's
`parts of the track member that are not beyond that plane, correct? Because
`you represent all of the part coming down from header 12 as being the track
`member.
`
`MR. KINCART: Your Honor, I am not an expert, but I would
`concede to you from my observation of it, it is that way, but it brings up a
`wonderful point that I sought to discuss with you today, which is the
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`definitions -- and they're provided on slide 4. You don't need to turn to them
`now, but they're also here on the display -- are at least as broad as these
`agreed-to terms, and so the broadest reasonable interpretation would include
`any part of that track being in there. It does not say in its entirety --
`JUDGE KIM: And this is the hard part because like I think we've
`had this at the other hearing. Are these the constructions you want or not?
`MR. KINCART: Are these the constructions? Yes, Your Honor, I
`would be perfectly happy with these.
`JUDGE KIM: Okay. Because now you're saying -- and it
`arguably could be said what you're saying is now that at least the portion of
`something recessed in is recessed in. Whereas, if I read set back into a plane
`of a surface to on which it is fixed or located, arguably you need the whole
`thing recessed and not partially recessed.
`MR. KINCART: I think that it's important for me now to bring to
`the panel's attention that it's not proper to read in limitations that aren't
`present and that we are trying to deal with the broadest reasonable
`interpretation. And so if we are, in fact, recessed into the plane, we are in
`fact recessed into the plane. And to add limitations such as in the entirety,
`would a person of ordinary skill in the art be aware of that and my
`contention is they would not. They would need to say if we're going to go as
`broad as possible, recessed is recessed.
`JUDGE KIM: So any portion of recessed.
`MR. KINCART: Yes, sir, any portion of recessed.
`JUDGE KIM: Okay. Oh, I had another question. About this
`plane, can you point to where in the record you identify this plane, the plane
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`that you just pointed out on the screen in the record, do you know where that
`is in the pleadings? I know that the figure -- the figure with the yellow part,
`the rails of the yellow portion, that is in your Reply. However, there's no
`line there. So when we were reading it, we couldn't tell what plane you
`meant.
`
`MR. KINCART: I am going to ask co-counsel to look for the cite
`for you and I'd like to -- there's another part that we had prepared
`anticipating some line of dialogue, although you always challenge me. Mr.
`Clark further testified, and I would submit that it's within the broadest
`reasonable interpretation to the question, I think I heard you say is that the
`tracks have been recessed and not the components, and the answer was I
`don't know what was or was not recessed, what would have been defined as
`recessed. And putting aside the 112 issues, again, I would suggest that in
`that much doubt, we need to go to the broadest reasonable interpretation, if
`even the inventor was not sure of what that would mean.
`JUDGE KIM: I guess. I mean, this is -- and I don't want to go
`down this rabbit hole too much, but now we're talking sort of about extrinsic
`evidence. I mean, you know, what the inventor subjectively thought is sort
`of one thing in the invention. However, unless it's in the patent document, I
`mean, how much weight are we supposed to give it, right? Because let's
`say -- I mean, in the other scenario is, well, you know, later on when you're
`enforcing this patent, the inventor is going to have a fuzzy memory, if you
`will, in favor of finding infringement, for example.
`MR. KINCART: Okay. Actually it's a perfect segue into another
`point in general that I wish to raise here, which is where is it in the patent
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`document? There is no limitation that says in its entirety or that it needs to
`be below the surface or it can be partially above the surface and so we need
`to apply the claims that -- or the constructions that we've agreed to and that
`in addition the law tells us that we go to the broadest reasonable
`interpretation.
`My point was not to say whether the patent inventor was even
`correct or not, only that he would be a reasonable interpretation of what was.
`JUDGE KIM: So you're treating it sort of like a quasi expert in
`interpreting --
`MR. KINCART: Or a person of ordinary skill in the art, right?
`And so we have given you experts. We've given you experts with advanced
`engineering degrees and we've given declarations from an expert with many,
`many years, decades in the business and so now we have the inventor,
`advanced degree, decades of experience all in agreement on the point that it
`could be very broad.
`JUDGE KIM: Okay. Thank you.
`MR. KINCART: Okay. I think very closely related on point is
`that a little bit of the law, Schreiber teaches us that functional limitations
`without corresponding structure should not be afforded patentable weight at
`all and Bettcher closely related teaches us that choosing to define a
`functional limitation asserted to be critical for establishing novelty, as is the
`case here according to the Examiner anyway, carries with it the risk that the
`claimed subject matter may, in fact, be an inherent characteristic of the prior
`art.
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`And you questioned us and probably rightfully so because we used
`the word inherent in our Petition and didn't couple it with necessarily so, but
`many of the things that are present, such as stops and end jambs, it does
`necessarily stop. And that if I turn to Van Weelden now -- I'm going to -- it
`is slide 14 and for the panel here it's here on the side. Van Weelden does
`have stops. I'm showing them right now that are listed as beads specifically
`to stop from -- provide limits for the axial movement of the rollers. And in
`abundance of caution, we said would that be enough and so we gave an
`alternate and we included things like Comeau where 200 is an end cap. And
`if we have these rails and panels sliding in the tracks, they necessarily stop
`it, as do wall jambs in almost every other reference that we have there.
`I was very grateful to have the opportunity to get up here and point
`out that although perhaps the Petition doesn't afford us to go into detail on
`all of these different aspects that, in fact, there's no way that these can
`continue to travel with those devices in place.
`JUDGE KIM: So let's say those are stops. Patent Owner then
`goes on to argue, but then you have these other limitations. It's not just its
`presence to stop themselves. For example, Claim 4 says, wherein those
`stops are positioned to limit movement on a third rail member between the
`other two rail members. Where is that in your briefing?
`MR. KINCART: So, again, if we go to the law, the law would say
`that the interpretation is that this is not a method claim. So it's structural
`components that are capable of this and all of these stops are designed to
`keep it on track. That track is between the other two. If it's on track, it's
`designed to keep it right where it's at. And if we -- I'm turning now to
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`Comeau, I'm sorry, Judge DeFranco. The end caps are also -- they stop it
`from coming out the end, which is the only way for Comeau to come off the
`track. It starts in the track. It stays in the track. As long as those end caps
`are in place, it's physically impossible.
`JUDGE KIM: Well -- okay. But it seems like the way that they're
`claiming it is longitudinal. I mean, that's the point of the beads, right, is to
`stop them longitudinally.
`MR. KINCART: So thank you very much. I mean, it's almost as
`if you're giving me the perfect segues and I'm going to turn to -- and, again,
`something that we anticipated the discussion and I don't know that -- like to
`go to can things, but lots of embodiments are described in this specification.
`It's huge and nowhere do these limitations come into the claim. There are no
`structural components to support these functional limitations. So we don't
`see a slot, we don't see a hex screw, we don't see anything that enables this,
`so most likely they're defective in and of themselves.
`Beyond that, we have stage doors, we have T.V. screens, we have
`wardrobes, all of these things. None of those limitations are entered into the
`spec. -- I mean, into the claims that were issued nor was horizontal, vertical,
`lateral alignment or adjustment. I would respectfully submit that it's well
`within a broadest reasonable interpretation to align the door so it's fully
`closed or align it so it's fully open or partially open.
`Because if you go to the definition of alignment -- and, Judge
`DeFranco, I believe that is slide 4 we're looking at, a blowup of it -- the
`adjustment of relative positions and orientation of one of those objects. We
`can't read those limitations in that they meant vertical alignment or
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`horizontal or any type. And, in addition, if it is only vertical, we clearly
`have shown in references like Sterling and Van Weelden where that type of
`vertical alignment was done before. In fact, it was commonplace and, in
`fact, these tracks and track elements are fixed. They do not change in regard
`to the header. So all of those references meet that limitation, mostly because
`there was no discipline in drafting up these claims.
`JUDGE KIM: But then what's the point of having a stop if the
`track member does it itself?
`MR. KINCART: Well, no. I mean, without the stop, and go to
`which reference? The stop keeps it from jumping off track and, in fact, it
`comes to play in the C shape which I'll get into also. But if I look at the stop
`first at Van Weelden with the beads and it's more the roller --
`JUDGE KIM: Like the one on the left with the rails, like the beads
`don't even look like they --
`MR. KINCART: They don't come into play so much. It is for the
`ones with the rollers which is primarily what we're dealing with in this
`embodiment. That's literally meant to keep the rollers functioning on the
`tracks.
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`JUDGE KIM: But then the claims are to the rails.
`MR. KINCART: I'm sorry?
`JUDGE KIM: The claims are to the rails.
`MR. KINCART: So I'd have to go to which claim? It says Claim
`4, first and second track members. Alignment of the first and second rail
`members is adjusted and that the stops are positioned to limit movement of
`the third rail member to between. So there's two different sets of limitations
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`here, but position to limit movement of the third rail member between the
`first and second rail members. So, again, clearly if you're going to have the
`one that is blocked there with the roller to keep it on track, it's limited to its
`original position.
`JUDGE KIM: But that's a roller. That's not a rail member.
`MR. KINCART: But the rail members are part of the panels and
`the roller is an extension of it. It's not a separate piece necessarily.
`JUDGE KIM: Where is that in your briefing? You colored the
`rails, but not the rollers.
`MR. KINCART: We don't have a definition of rail up there before
`us, and I think that it would also be unworkable in the '944 [patent]. They
`don't distinguish between where the rails can move without the rollers and,
`in fact, it's the same correspondence of rollers and rails used on that. They
`don't have the slides, but they do have the rollers and the rails the exact same
`way and so we essentially presented you with the same structures and the
`same pieces.
`And what it appears is that the Patent Owner has sought to rename
`them in a way that causes experts, including their own, to have some doubt
`on the meaning and, in fact, you know, someone that was there for tens of
`years, Mr. Dowd, it's not natural nomenclature for these parts, but that is the
`same structure. So if the '944 patent was to teach it, it's that it's to remain
`between the rail members, even if it's via extension of the rollers. The rail is
`between the rollers, so there's nothing that it can do without the rollers.
`And, again, in Comeau, if I turn to that, you cannot readjust that in
`relation to the other two rails without sliding it out of the track entirely. And
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`so by putting end caps on it, we've essentially accomplished what it's
`expressly asking us to do, limit movement of the third rail member to
`between the first and second. Especially the end caps, the rail would
`literally hit the end cap whether it was being supported by the rollers or not.
`JUDGE KIM: Well, but for that end cap, it would seem, it would
`hit the first -- the outer rails, the rollers, but the inner one it would not hit,
`because you have those two portions, I believe they're labeled what, 162.
`Aren't those only in the outer apertures?
`MR. KINCART: No. This piece here, is it 165? 156, the green.
`And, Judge DeFranco, I'm referring now to the Comeau exhibit. And that
`slides into the end of the entire apparatus with all of the tracks and all of the
`rails. So all of them would come to strike that, if it was brought to --
`JUDGE KIM: The end part, but then -- but you're also saying that
`the extensions are also part of the stops, correct?
`MR. KINCART: Well, the extensions, they keep it in place, but I
`don't think they act as the stop. I think it's just a securing mechanism for
`attaching it to the assembly of tracks. I don't --
`JUDGE KIM: I guess the way you -- okay. So let's say it's just the
`end stop.
`MR. KINCART: Okay.
`JUDGE KIM: Then it would seem that all three rails would be --
`they would have the same freedom of movement, correct?
`MR. KINCART: In this embodiment, yes.
`JUDGE KIM: Yes.
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`MR. KINCART: But there's nothing in this embodiment to say
`otherwise.
`JUDGE KIM: Well, but then the claim, again, says the stops in
`Claim 4 are positioned to limit movement of a third rail between the other
`two rail members.
`MR. KINCART: Yes, sir.
`JUDGE KIM: So how is it stopped -- if they all have the same
`range of motion, how is one --
`MR. KINCART: So I think -- again, I'm very glad if there's doubt,
`we have rail 1, we have rail 2, the inner and the outer rail, Judge DeFranco,
`and then the inner rail is rail 3. This inner rail 3 moves in a motion that
`would, let's say open and close the panels for the sake of this argument. It
`limits that movement. But between those two places, there's no other place
`to do it. However, without an end cap, it can slide right off and then go
`anywhere.
`And, similarly, but in a different way to have the same effect, we
`have these beads which keep it on track which is between the inner and outer
`and keep it from coming off. So the only way that it can move is in between
`those other two. There's no other direction of movement for it or at least
`that's probably a broader statement that I need to make. It limits it between
`the two. I suppose it could move up and down, but that's inconsequential.
`JUDGE KIM: Okay. You're out of your initial 20 minutes. Do
`you have a last point you'd like to make?
`MR. KINCART: Just one sentence or two on the Motion to
`Amend in that for all the reasons that is procedurally wrong, the limitation to
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`move with is nowhere in the spec. and like the other limitations needs to be
`interpreted very broad. And if we remember, this would only come into
`play. It's a contingent. So, in essence, you're saying this claim is invalid.
`But if you put down to move with, it would make it valid and it occurs to me
`there's no limitation on to move with.
`So if some small competitor were to move it across his warehouse,
`that would, you know, in essence anticipate the claim that had already been
`considered invalid or shipped it or done anything to do with this piece of
`equipment. It gives us no limitations on what it did and there's undisciplined
`drafting here both in the original and in the amended claims where they
`could have done something meaningful. We've spent over a year now
`teaching them the meaningful limitations that could have been included into
`their claims and they chose not to do it.
`Thank you, Your Honors.
`Are you okay with that or do you want to --
`JUDGE KIM: I have a question there, yeah. I mean, so what I
`think Patent Owner is going to say is what I mean by move with is it's the
`rail member is locked to the track number. What is so complicated about
`that?
`
`MR. KINCART: I would suggest that that should stay in the claim
`and at the very least a disclaimer for all other movement be filed with the
`PTO, otherwise it's very unfair. There's a whole case about public policy
`and putting, you know, the POSITA on notice. And to move with, as I just
`created one example, is so broad. I would suggest that the claim drafting is
`very undisciplined, no structural components to support the functional
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`claims, overly broad, no definition, no glossaries and to move with is an
`unsupported term that is very, very broad.
`JUDGE KIM: So you don't think that your example of move with
`is an unreasonably broad interpretation that --
`MR. KINCART: I don't think it's unreasonable. We move
`devices. So what if we just moved the entire assembly back two inches in
`installation? I'll become a little bit less ridiculous. It was meant to make a
`point in the warehouse or shipping it. But what if we move the whole
`assembly two inches back in installation, have we then violated the claim?
`What if it's a half an inch?
`JUDGE KIM: Well, I would assume Patent Owner would say no.
`MR. KINCART: Then I would like to see that written into the
`claim and for obvious reasons. Then the person of ordinary skill in the art is
`put on notice this type of movement has been claimed, this has not and so,
`again, a declaration to the PTO that was put on notice we disclaim or
`disclaimer all other movements and maybe that would be something of
`interest to yourselves.
`JUDGE KIM: Okay. Thank you.
`MR. KINCART: Thank you.
`JUDGE KIM: Mr. Fountain, I'm going to give you about three
`extra minutes. I'm going to give them their entire 10 minutes. We've run a
`few minutes over, so.
`MR. FOUNTAIN: Okay. Your Honors, we have a lot of ground
`to cover, so I'll jump right in. The stop, you were talking about the stop with
`regard to Figure 11 on page 2 of the demonstrative exhibits. If we look at
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`the claim, it says the stops coupled to the track members. What's shown on
`Figure 11 is a stop coupled to the header track. You've got to be consistent
`and what we've talked about in the past we're seeing, again, here today.
`They're mixing up the word header track and track member.
`If we go to their definitions which, by the way, they've said for the
`first time in their Supplemental Reply that we acquiesced to. We don't. But
`let's assume their depositions for -- their definitions for a minute. A track, a
`groove serving as a guide. This on page 4 of the demonstrative exhibit. And
`we look over to page 2 at Comeau, we have a groove serving as a guide.
`Where is the groove? There is no groove. There's an L-shaped flange.
`You'll find the groove on page 3 of the demonstrative exhibits with regard
`to, for example, Figure 4, element 70. There's the groove, but you don't
`have it in Comeau.
`JUDGE KIM: And, of course, they're going to say, right, it's an L
`shape. You can put something in an L shape and, you know, maybe I guess
`what you're saying is there's no lip and you need a lip for a groove
`essentially?
`MR. FOUNTAIN: This is their definitions. You're absolutely
`
`right.
`
`JUDGE KIM: Well, yeah, no, and I'm sure they're going to say,
`well, you don't need a lip under that definition.
`MR. FOUNTAIN: Right. But let's go back to the more
`fundamental issue. If we look at the Supplemental Reply and we compare
`that to the Petition, two things jump out at you. In the Petition they never
`claimed Comeau was invalidating by itself. It was always in combination
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`with something else. And if you look for the word beads on this Figure 4
`argument, the word beads you can do a word search in the Petition. You
`won't find it. That's a totally new argument and that's too late.
`So to come back to one of my objections to demonstrative exhibit
`2, also these definition they've taken from what was agreed in District Court,
`that was agreed in District Court under local Patent Rule 4-1(b)(3).
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