made a terrific table saw that was tremendously successful and if he had written if the patents in this suit i should say if he had written ats because there are many other g that dr gas describing as patent applications now what's happening is that these patents these remaining two patents are being used to preempt competition from new and different kinds of safety systems this is a preemption case that's that's where i come out with the correct what the correct label is we know from court cases ranging from the morse case way back when through halliburton in one nine hundred forty six through some lower court decisions more recently that one not simply cannot claim the results of a machine you have to you have to claim the machine that you invented you can't say i claim anything that three traps a blade when it detects some sort of dangerous condition and i think because of the preemption concerned and the way one to one was described in the supreme court's alice decision i think section one hundred one is right where these claims belong they're directed to the abstract idea of a safety system and there's nothing more there in the claim except wrote that if if one pays attention to the intrinsic evidence i have so it is i'm just looking at the heading is two point five that talks about functional client that's right and then of the third line we wrote that if if you correct the intrinsic evidence instead of doing a pure williamson analysis then the claims are not means plus function and the extent to and preempt also systems and mechanisms capable of performing the even if those systems and mechanisms were invented long ago by others were not yet been invented that's exactly what's going on in this case now there is there is there are some alternatives to addressing this problem which can be labelled under one one you could look at it as a variety of one section one twelve system and the reason i say that i think we could look at one of the short cuts that i mentioned would be looking at the claim element mechanism having a movable component in the two seventy nine patent our contention from the beginning of the case based on our experts unrebutted on cross examined opinion was that one of skill in the art reading that phrase in that  in the context of the specification of the intrinsic evidence would build would understand the movable component to be a break off and he or she would understand that based on the specifications setting forth dimensions such as one thirty second of an inch three milliseconds that track perfectly between the claim language which uses those dimensions and a specification that uses those dimensions and one could clue that the movable component is a break in which case we don't have any infringement issue because our product doesn't use a break we were informed read paul contribute to that with traction of a cutting tool it does run in the saw stops primary example and in their commercial products the break paul stops the blade and when it grabs the blade the angular momentum of the spinning blade is transferred into a downward force that pulls the blade and brake all and that that your honor is where i come to the abstract idea problem because if it's anything that moves it is as saw stop itself said to the patent office covering any machine that will perform this function no matter how it engineer design or what kind of component is moving now earlier cases have looked at this as an issue of indefiniteness i think that's been a frequent label in the older cases i was concerned that that label doesn't fit host not a loss because in fact if one of skill in the art can look at one of these machines and determine whether in fact it taps some sort of dangerous condition through some sort of detection mechanism and retracts the blade with some sort of retraction mechanism and it does so within fourteen milliseconds want to school in new york knows whether it is within that claim or whether it is not in the plan doesn't seem attack on the claims was a tad underdeveloped you know i mean we've seen a lot of why don't want briefs the past few years they always go through the two step framework and they always try to walk us through a particular claim and then and then go line by line through the various limitations and explain why each of those individual limitations ultimately doesn't add to anything either alone or is the word combination with something that could be considered and then a concept because everything that's really in there is just generic well understood routine etc etc and and so when i looked at your brief load of israel jay as well as your blue brief i see something that's a little skimpy on the analysis and so i was concerned immediately after the initial markman decision in which we went through all of these cases in detail and looked at the various legal labels because really what we're talking about is what label is it for what's wrong with these claims we discussed all the labels want to one unable meant written description indefiniteness federal common law that brief was still pending excuse me that motion was still pending when we had the hearing and it was still pending when the hearing was ended and it was still pending when we wrote our coast hearing griefs you're correct your honor that immediately after we filed that motion the judge sue a sponsor ordered new claim construction briefing on the question of whether after all these claims were linked in some way to the specification whether the specification does bind them in some way make them concrete in some way that commission a century endorsed it isn't something that's something that can be addressed here on appeal now that l j has actually passed on the issue or would you say that the other side is waived any right to construction and that construction violates the principle that limitations in the specification should not be imported into the claims and also violates the doctrine of claim differentiation burden is on them of course because there's a presumption but he went through and did the analysis and looked at the patent looked at the testimony of all the experts the parties rolls and it's not one twelve six and so that that litigation choice by seems to feed into a strategy of trying to knock out these claims perhaps under section one a lot because if all the limitations are so broad engine erik that thing compass any and all items that maybe do was so i guess in a sense it's probably i think in your interest to argue that well ease limitations are not so purely functional whether definite structure right it's a class of structures like a brake mechanism you're on and that's the question before you is there's a presumption that it is not one to all sex and the l j went and examine the record and said this is being used to define a class of structures other safety mechanisms figures three and four show side views of a table saw configured with both a retraction system and a breaking mechanism to use the word retraction system there to connote a structure of systems that are used just like a braking mechanism but this one it's one that we're environments have that or attraction system would be one where you have him out that's movable and an actuator that's going to move amount to mount the blade on it in an actuator that is then going to move that away when the detection takes place and that his structures or traction systems well known in the art and there's this breaking mechanisms they're using it in the way that the l j said which is it's a class of structures if the claimant instead of saying reaction system et still be a there be a presumption going one way but in fact if this it breaking means or stopping something someone say well that's a breaking mechanisms and that's a class structure so i would not say that would be the case it's not the issue here force and your honor even if th alison's taking a look at the entire claim we're not attempting to claim all structures as they say that will break this bill look at claim twelve for example it requires an explosive so if you use something besides an explosive you know infringe twelve playmate requires a contact action but there's well known systems that use proximity detection so there's no claim here that is covering every single way of having a safety device none of the claims do in fact if you look at claim sixteen yet that's not hardly i mean if you talk about the preemption while i mean that's not hardly necessary for preemption right you can look at a smaller field than the entire field to establish preemption yes but there i mean your honor is that we are preempting every way that you can try and make a device that is going the claims here and you have to look at each claim individually every way you can make a device that will have a safety mechanism that if you said if you put your finger against it it's going to stop them sixteen of the two seven nine requires a retraction system there are some systems that only use a break so he will break the only system you're not going to infringe claim sixty so there's no preemption here whatsoever the basis for this if there is a preemption issue of the three you're covering too much of their own  establish any of that your honor these claims do not cover an infinite number of devices there are ways to do there are ways to practice that don't meet the scope of these claims in every single instance and get them i'm sorry getting back to reaction means hypothetical sure you're saying that would not be one twelfth us limitation because because why because language describing the operation structures there's a just a presumption that the means so would necessarily mean that it's one twelve six just as i said like a breaking is it breaking means and what it will add just means use a break there's a class of structures that are breaks there's a that's not the issue here the issue here was one that class as a model component and actuator and there's many different ways that you could do that and therefore this is a class a structure is like a break you missed mechanism or determinism that's the language that the when their expert looked in fact that's how the experts looked at it they looked at that entire phrase and said this is describing a retraction system so if i said reaction i misspoke i meant that phrase that i'd read to judge more means that you are talking about a class of structures that are attraction system your honor the word actually meet your your own is the word break is known in the mechanical arts as the name for structure there is no evidence in this record that either reaction system or what we're hearing now retraction system is known in the art as a name for structure if it was we would have a completely different case if it said break if it said detached and if it said screwdriver in any of those words that are known as names for structure then we wouldn't be in in a williamson zone we wouldn't be in a functionality zone but the only evidence in this record is the opinion of one expert that these claims refer to anything that performs to be cited function we do have some deposition testimony from another expert from saw stops expert who s reaction system would be any system that causes a physical action and we have the intrinsic evidence of what saw stop intended to cover and i think a very fair question for me is why on earth did you not walk into that hearing room at the market hearing and argue that this is all means plus function the answer for that is the intrinsic evidence which we laid out on pages thirteen and fourteen of our brief that made it clear that this applicant absolutely was not trying to invoke and in fact was trying not to invoke means plus function law and what we have said all along in the supplemental briefing even in our very initial exchange of instructions with a stop is if you look at the williamson test this is means what function however in this case unlike any other case of that i'm aware of there is strong intrinsic evidence that the applicant did not want  means plus function and so we have to decide what to do with the case when under williamson it would be means of a function but we know that that was not the applicant's intent and labeling it i want to one problem may be bizarre  figuring out the correct label for what the problem with these claims then is has been difficult and the difference in the law today versus when the supreme court decided morse or halliburton  points that up we did argue written description and enablement we said that if what you're claiming is any machine that can do the job invented now invented before invent it in the future th inherently you cannot have described every single possible machine to do that job and inherently you cannot have enabled every possible machine to do that job so you could look at it as a section one twelve problem i but yes this is our supplemental plan construction brief where this argument with intrinsic evidence williamson is laid out and we included a table with what we thought the corresponding structure page one eight to four of the appendix the second table up from the bottom on the one to seven patent reform we have reaction system described as late break plus retraction system and body meant some citations to the patent but i look at retraction as part of the function of that claim it says it reacts by this is your arguments where the correspondence structure is proving that he's  all being in the same bucket ok because reaction system and detection system both suffer from the same issues so we dealt with all of i would look i think i think the answer to what case to look at in terms of recent cases may be the me as aki which is a board that appeals interferences case where the claim was written functionally it did not use the word means the board said this is not section one twelfth six paragraph but it is functional therefore if so facto it's uncountable because it didn't