the united states court of appeals for the federal circuit is now open and in session god save the united states and this honorable court stratton corp given that we only have one argued case today i think what i'd like to do is give both sides instead of fifteen minutes seventeen minutes so that when mr venteen minutes and that way given all the potential for cross talk we can ensure that everyone has a full opportunity to be heard today mr wolf whenever you're ready again thank you or as yet and that's in part because the specifications specifically says that the baffle and the wall be one and the same now the claims call for a separate baffle so you would need a separate piece of metal we should your view understand nothing more than a flat plate mounted all along the front wall to count as a flow control sitting there your honor i understand your question and i understand why my answer may be counterintuitive and it's really driven by the specification which says that a two for the quote back wall thirty six may be eliminated with the flow control baffle sixty eight forming the back wall of the mower deck so i think what the specification is saying there is that the baffle is what affects the flow of air it can be one in the same thing as a wall and so the logic would extend again we don't need to go this far for purposes of this appeal so i i don't think we're arguing that if that any of this is necessary for you to find a fact question for purposes of the jury but the logic of the specification is as long as you have a separate structure as long as it is in between the blades and the front wall that it doesn't matter whether it conforms to that front wall it can still serve as a baffle that's the best answer i can give you to that that i don't want to say counterfactual but that hypothetical situation and that's i think definitional based on the specification that's what would have appeared presumably in any jury instructions after closing argument but those constructions construction was then further construed by his honor and said that implicit or  with was the meaningful effect and the space the part limitation and not just meaningful effect and spaced apart but meaningful effect and spaced apart for the entire length of the baffle and this is why i was pushed back a little bit on some meaningful of fact consideration with the claim construction but he did appear to contemplate that there was some kind of separation requirement that was need between the front wall and the and the baffle am i wrong about the meaningful effect part if you especially i believe you are your honor appendix forty two the last sentence of the st full paragraph is on a right the concept of a meaningful effect is subsumed within the notion of control of the flow of clipping that is what i meant by further construed their construction or implicit so it was not part of the words of the construction but certainly it was on the district court's mind when it rejected simplicity as a matter of laws either anticipatory or obvious prior art obviousness prior art mr wolf this is judged by what do you think meaningful a fact and control means i understood that to simply mean that the baffle has to actually control the flow of clippings and that's the same thing as meaningful effect do you have a different understanding i don't  the devil is in the details here your honor though because we have x marks admission that the simplicity baffle controls the flow there but they add two further implicit elements to that one is it has to have a meaningful effect along its entire length so if there are portions that are not doing anything and portions that are somehow that counts as no longer a flow control baffle and then also the notion that it is not it has to be as opposed to an absence that would read out the specification language i was talking about earlier where a baffle in the front wall at least for a period of time can share metal as contemplated by the specifications but opposed to the absence of the wall that was not the construction that the parties agreed to that was not the construction that was used to find that our product friends their original and product friends because there was no evidence that  you page fifteen of our opening brief it may be the biggest and best picture of the underside of the  on the the green and the orange and the yellow is the baffle and then when that when the yellow ends on the left side you see a semicircular black piece of metal that's the that's the metal that gap so you can see that the discharge opening very much still exists and the at the top in the bottom i don't know how many inches that is but there's a gap you can actually see white in between that discharge opening very much still exists even though the flow of air is cut off by that mulching baffle and that's of course precisely what claim for dependent claim for us talking about what you see is simplicity is an embodiment dependent claim for and terms of its written description and then looking at claim one and claim for what becomes clear to me is that this patent is directed to i guess what i would call a reconfigurable side just charging more and that it was known in the art that you could convert a side discharge mower into a mulching lowered by  st flow control baffle and all the other elements it appears that claim one by calling for a discharge opening to be formed in the sidewall is in fact directed to a side discharge from our that through claim for we understand can be reconfigured through the addition of extra par to convert the sides discharge more into potentially a mulching mar that can be reconfigured back into a side discharge maher and so sense why would it be wrong to conclude which i believe the district court did that any infringing or anticipating moer would have to be able to function as a side discharge mower with all the elements recited and claim one including the flow control baffle so let me answer that two ways your honor one is that simplicity could in fact operate that way even if that was correct as claim construction the piece of metal that covers the discharge opening is a separate piece of metal you could if you're looking at page fifteen again you could take the metal to the left of the yellow line off and then you would indisputably have even x marks where you claim one so these are three different pieces of metal that are put into the plate in the simplicity package little more time but could you you said you had a nd reason could you quickly touch on that or did you already include that i did that was that and we talked about this at some length which is that claim for m encompass claim one and so when it says close is said discharge opening the discharge opening must still exist even if close but all of this is of course replete with facts i mean our expert says it would have been obvious as your honor pointed out to just take that playoff if that's what you want to accomplish but even when you're constructing it there's a period where the plate isn't on that you have i don't even under x our construction i'm going to support torrey mower at that point in time ok thank you very making the more productive and more profitable it also played a major factor in transforming xmarks from a small player in the market to the market share leader it was poppy by many commercial mower manufacturers mr vandenberg i'm sorry that you only have a limited amount of time could you actually just speak to the arguments yes i want to start with the issues of play and construction but i want to start by talking about the many cases of this court that reiterate that claims must be construed consistently with what the claims the specification and the prosecution history show that the inventor actually invented it now usually those cases come up in the context of infringement where the argument is being a patent he's trying to cover something that their invention was never intended to cover well of course it all comes down to the actual words of the claims so if there are particular words of the claims you want the court to focus on could you please go right to that end and then tell your story from those words yes your honor st of all is the issue of the infringe your honor of the claim does work does require more than just an opening it requires a discharge opening we have to give all claims all words in a claim meaning what what is the function of the opening in the in the past and if it's not to discharge one hundred percent of the opening in the side wall in the pa but it does it does not it cannot perform that function when the mulch kit is installed in the specification here else so reiterates that a more is a side discharge more depending on whether or not not just that there is an opening in the side wall but that that opening is capable of discharging air and grass clippings an analogy that we've thought about is if i'm in a if i'm in a locked room you know there's a doorway but it's closed and it's locked and there's no key is there an exit opening from that room i would submit to your honor's that there is no exit opening if there's no ability to open that door and exit it's not till the door has been unlocked and opened that there is an exit open in the same way when the multitude is installed you may be able to still look behind there and see an opening but it's not a discharge opening because air and grass clippings can not just charge through that opening only when it's removed that you have an opening and when it's removed you also have no structure in front of the blades and in fact is as we pointed out not agree simplicity is really just another example of the conventional wisdom that says when your side discharge malling keep nothing in front of the plates and it's only when you're trying to mulch that you install baffles in front of the blades together with a structure that closes the discharge o create a thicker front wall there is no evidence that merely creating a thicker front wall has any control has any effect on the flow of air and grass clippings but your honor it's not just that language there is other language that leads you to the same result and again we construe claims not with each term in isolation but we look at the claims terms together as a whole judge chen s if i recall correctly the district court judge seemed to be persuaded by evidence he heard at trial that you will improve performance with your  baffle is based away from the front wall because that further reduces blow out and to me i thought that was a peculiar way to rely on that to construe flow control powerful when there's nothing in the intrinsic evidence that talks about how this baffle is designed to optimize the reduction of space it away from the front wall not that you have you ultimately have a nonfunctioning baffle if it's somehow pressed up against the wall in part that didn't seem to be what he was saying he was talking about requiring the baffle to be spaced apart all the way along the front wall let's look at the other plain language your honor we also have a requirement that the baffle be located between the blades and the front wall if you were trying to cover a structure that merely had a place running along the front of the mower you would never use that phraseology as we say in our brief if you're talking about a claim of hanging paneling in a room you wouldn't say that that paneling depends downwardly from the ceiling of the room between the walls of the room say if it's been attached to the wall and it becomes part of the wall here the claim say that the front flow control baffle needs to be located within the walls of the mower  k and it needs to be between the blades and the front wall the other thing that the other things that the claims require is they require that the walls have inner surfaces and that the walls define a downwardly directed opening again further indication that the claim language the flow control baffles are not to be construed to cover just long plates that are running a long time to acting conforming to that the various the only thing that's located between the blades in the front wall are those three v shaped pieces the remainder of it is not meant to clarify for the court on the issue of portions and mr me wolf is trying to use that term broadly to say you know any portion he can think of and this this one is section or this to which section over there that's not what the reference to portions your honor again we're not disputing that those vs shaped pieces have an effect but those vs shaped pieces don't get you the various portion part to the shape of the frontal your honor it might still have some effect on wall but the various portions would not and it would and the portions you would be looking at would still not be located between the blades in the front wall and you still have the difference that the baffle was the separate structure again your honor i respectfully submit that at least the portions that run along contacting conformed to the front wall would not be  not i'm not clear why you're thinking that is it because of the the fact that the air contacts that surface because that is an issue that was addressed specifically by the patent office unquestionably control the flow of air and grass clippings have a big effect on it and they are not flow control baffles the deck long we're not disputing the deck walls have an effect on the floor and grass clippings but the question is whether the simplicity structure has all of those required elements of the claims in addition to a flow control baffle that is located between the blades and the front wall that projects downwardly from the tomfool that despite their presence still has still leaves the deck with walls that baffle well of course they have to call the part in their manual something that's right and we don't dispute that as a whole there are pieces of a baffle function but again at the end of the day the issue is not what simplicity calls it it's what our specification our plain language specification prosecution history as a whole indicates was invented during reexamination didn't you acknowledge that it's ok if the baffle makes are going to try to argue that it means something different they will hold on a nd we're not talking about briggs right now we're talking about you were talking about your side and we're talking about how your side during the front wall and so therefore a can't nessun it doesn't necessarily have to be constrained to be completely separated all across the length of the front wall and i wrong about that your honor what we said is that it can touch at a single point we're making the point that just because it touches at a single point would not prohibit it from being a flow control baffle one of the requirements of the claim is that you have a stay separate stand surely continuous battle it has to run substantially so now i guess just so i understand your position before you have to go you're no longer pushing the idea that the bath will have to be completely separate all the way along across the front of the mower it can it can touch the front wall one can you can you explain why it can contact the front wall once but not twice because you can speak and at that point you are not making just a thicker front wall i would submit this y there is a flow a substantially continuous flow control baffle the claim language contemplates that there could be discontinuity so that if somebody wanted to make that i don't have no evidence that anybody ever tried to appropriate this invention by doing that but if somebody did that that's where the claim language would lead you and it's completely consistent with the point that pieces of metal that simply and more questions a couple things are on our one here on earth one we have to remind ourselves of the posture i know we all know this but this was summary judgment as the anticipation obviousness must of what everything we've been talking about and perhaps you've had it open previously but i just wanted to make a few points based on that if you could you repeat the j a number twenty eight thousand three hundred and ninety four and it's a it's a yes all right so we see on the upper left we have the blowout that's been colored in both of the briefs and a couple things to note about that st of all mr vandenberg said that you could touch once and you would still infringe put it a certain number of and then when you get to the v shape corson's by substantially more nd he made a comment about that it has to project downwardly from the mower down you'll know if you look at the top  you'll see bolts coming through the top of the mower deck connecting to the baffle these baffle portions are not only screwed into the side wall they are screwed directly into the top wall of the mower deck and finally i just know that you see the piece labeled it's kind of in the middle last that's the portion that covers the discharge opening if you take away that  discharges if you want the grass kicked out mulching is if you want to chop up more and less there for fertilizer mulch or whatever the case may be and so if you wanted the flow control benefit to get from a to b all you have no pun intended all you have to do is remove plainly for a jury to decide whether or not that would be obvious even if you were to decide to discharge opening ceases to exist if you cover it and i is my question is why why would you remove that place and keep the front and mulching baffle plate for purposes of using simplicity for a side discharge mower if you want if you believe that the benefit of the baffle structure is that the curve straight curved structure of the very much for your time and we're all the whole community is very impressed with how this process is going in light of the condemn i hope everyone is well thanks very much for that mr this case is submitted