good morning everyone the united states court of appeals is pleased to be holding oral arguments here in the historic a courthouse in richmond virginia this is the first time our court has sat in richmond some of human yet may know we sat yesterday at the university of virginia law school in charlottesville and will be sitting in one panel of tomorrow at the university of richmond law school this is a normal part of our pursuits pursuant to the  statute creating the court in one thousand nine hundred two we were commissioned by congress since we have a national jurist diction geographically to sit around the country from time to time so every year we depart washington and go to another city we're a regional circuit sits and hence we're here dave pleased to be so very grateful for the finest distance of the circuit executive and clerk and other personnel including the security officers of this courthouse and also grateful to same as we have every month regardless of where we're sitting with that let's get to the business at hand first mention that there are two appeals being submitted today on the briefs without oral argument namely department of treasury and as well the case of an appeal number zero six thirty one thirty eight on bravo vs office of personnel management likewise being handled on the briefs three cases will be argued we'll hear first argument in appeal number zero six dash ten twenty seven freeman versus playtex products mr starr good morning welcome and please proceed thank you better in the district courts martin or in this case your honor the court correctly construed the key limitation in this appeal which is a slippery plain or section of  thin membrane so there's agreement between the parties and also the court as to the correct construction of the plane or yes your own so it's only the application of the construction that's the source of dispute that is correct  and you say the application was erroneous because that's correct your honor the court determined that a plane or section of a thin membrane meant that the slip through the thin membrane had to be through a section of the membrane that had a flat two dimensional quality the court also indicated in its market order that a plane or structure need not be perfectly flat because  membrane a flexible resilient membrane cannot be perfectly flat when it's in use or when it's not in use boat the court also noted in its mark in order that the three forty seven patent issue in this case claims a membrane that has a slit located where the membrane is relatively flat so the court the district court taught us a few things about what it means to have a flat two dimensional law is there anything in the written description or elsewhere in the patent suggesting that your client was attempting to obtain protection for curved court could have done what it did do you both say is fine except in the application correct what's the error in the application the application is that play texas membrane i concede if you look at describe it as parabolic i'd describe it as slightly slightly concave as as you view that membrane from the time ok whatever the degree is is it continuous across the full expanse of the part of the membrane in which the slit dislocated it's my understanding yes it is but the focus of the problem or it's not a problem it's an interesting thing about these particular claims there is a limitation that talks about a  membrane ok the thin membrane itself isn't just report correctly noted was never amended never discussed and the overall membrane itself can take any of a variety of shapes all right so we know that thin membrane itself is really not an then intersected as i understand coil sensually has two surfaces that converge kori is not a suction operated valve like playtex is about or the three forty seven valve in fact for you if you ply suction to the word planner for the thing i'm concerned about i don't know about the other two judges is a fair notice to competitors once the amendment says planner why shouldn't competitors be permitted to  rely on that and to design around for example by having a membrane that is otherwise similar except not plan or your honor i absolutely agree that the notice function of claims is critical and in this case i think a reasonable competitor reading the prosecution history looking at the mechanism of court which is night and day from playtex is on a bit but the reader doesn't only look at what the prior art was that was the problem it also looks at what the solution was selected out of all the words in the world by the prosecutor and he or she selected a plan i don't believe in summary judgment context you do a different story of course is in this case so the question here is whether a reasonable jury could have found that despite being somewhat curved the accused device membrane is close enough to plan or to meet the definition of plan or not not close enough close enough is is is the equivalence argument that that i'd be glad to made well within the meaning of planner as defined by the court as defined by the court the court said that planner means having a flat two dimensional quality of query what did the court mean by the quality of being flattened two dimensional particularly when you're talking about a structure a membrane any structure has three dimensions or it would be a structure of fame of course of the question mentioned all in of course the district judge understood that and the district judge also said that plainer structures do not have to be perfectly flat that they can be relatively flat in the court recognized that in the literal infringement context there was would you agree then that the question is whether a reasonable juror could find that the accused membrane is relatively flat yes you're ok and i'm sorry now what's the what's your basis of saying oh yes it would have been perfectly reasonable for the jury to conclude that the curve membrane which the court dismissed as conclusory i believe your honor of the storm declaration may be many things but it's not conclusory dr sorel was going to tell the jury how a structure having length and depth and thickness could be deemed to have a flat two dimensional quality and dr storm is an expert in membranes so he was going to tell the jury how first of all the playtex membrane was had a flat t dimensional quality how it was relatively flat he was going to describe the major a membrane which themselves by their very nature are resilient and flexible and sag and move upward and downward during operation and and sag during rest but also the jury should have seen and could have seen the actual sample of the playtex valve they could have looked at that in the question then becomes is is the  we do your honor we're is that i did a very i'm sorry is it ten seventy eight i would refer to the court in a four i couldn't find anything that wasn't so minuscule as to make it impossible to estimate the degree of curvature we don't have the device here we do have a device here i've also got the engineering drawing which the district court tippit reproduced on eighty four that didn't seem to be much more helpful than the tattoo drawings what seems to start the curvature can be seen if you take the upper right hand picture and the arrow on the i understand you correctly whether a reasonable juror relying thereon could have found that the membrane on the left is relatively flat if you're anything else besides the storm declaration critical to please the court morning runners the central issue on this appeal before the court this morning turns entirely and i think it was picked up by your honour's just now on whether the court's construction below means relatively flat both freeman in their briefs and dr soren in his declaration repeatedly refer to that as the standard and i would submit to your honor's that is not the standard that is not how judges define the term play in our section so relatively flat or not the district judges were that is correct sir there mr starr's were yes sir remind us of precisely what the district judge wrote the district court said precisely that plain are means flat having a two dimensional quality and so when i was thinking about this last night i thought to myself all why when you say just flat and that seems an obvious question and the answer to that can be found in the district court's opinion and this is a footnote three hundred thirty two of the joint appendix in these claims are honors there were two uses of the word plainer a d the court first addressed the term plain are with respect to the lid portion of the sippy cup and the court noted that the term plain if you look it up in the dictionary says a surface to something having two dimensions and freeman actually argued below well that can't be the right construction because clearly a lid on a sippy cup has three dimensions so that can't be right judge one strome then looked at the term plainer and said well plain are means flat having a two dimensional quality in other words not purely on a surface not purely two dimensional that it can have some dimension and of course that's precisely what we're talking about here plain are in the context of a lid having three dimensions how is your membrane constructed is it heat molded to have curvature or is the curvature accidental and to perform any useful function what's really going on here there are that's a very good question and we address it in our brief the answer is we specifically intentionally told it to have occur judge paul pointed to the appendix ten seventy eight where there's the engineering drawing inventor on the playtex patent testified that we put that curve and to prevent what is known as salt and pepper leakage so when an infant there's two ways these cups can leak your honor if you just tip it over that's it  but as we all know having young children they don't do that they shake it up and down and it's called salt pepper leakage and the determination that was made by the playtex engineers around her was that a curved membrane would prevent salt and pepper and so then when mr star talks about how membranes because they're inherently pliable sag presumably under the force of gravity that's not the what causes the curvature in your membrane you're curvatures deliberate not gravity cause yes sir and  the notion that you can somehow account for this as an engineering artifact that's simply not the case and i don't believe it's disputed by the other side this is intentionally a curved membrane and you know now as to if your view that it's just insufficient on its face or somehow it has been countered or neutralized by evidentiary materials you submitted on the summary judgment proceeding the former your honor and i would submit for two reasons the first reason is if you look at the operative paragraph of the storm declaration he performs his analysis on the basis of the construction of the relatively flat he says my opinion is that the playtex membrane is relatively flat we're going to get that if if that was not the phrase ever used by judge lunch well you ought to let me be specific judge along stroke when discussing the coil valve in his opinion in a fairly casual way says well the plate to the membrane of the three four seven pads is different from coil in that it is relatively flat that was not his adopted construction and i would submit your honor that because judge long stream used the same definition for plain are both were split respect the lid and with respect to the membrane it would tell you why he wouldn't have such a construction because the plane our lives is expressly modified by the well known term substantially so it's a substantially plain our cover section with respect to the lid if you use the same construction for plane are with respect to both the lid and the membrane then the earlier limitation in the claim would mean substantially relatively flat having a two dimensional quality and we would respectfully submit that just doesn't make any sense so sort that's the first point your honor the swarm use the incorrect standard he did not use the judge definition the second point your honor is that the only analysis dr soren proffers in his declaration is this notion of coordinate systems and my friends on the other side say well that was implicit in the judge's claim construction if you look at the judge's summary judgment order he says not only was it not implicit i expressively rejected the notion of a coordinate system to determine whether something is plain or not limitations and either can or you this product in all due candor i have to say i'm a little perplexed by judge mr dr storms declaration as was the district court because there is frankly some very inconsistent language in the in the operative paragraph but here's what i understand what you understand a concept the concept is thin in comparison to length and with so few what almost like the definition of a membrane that doesn't really help as of course it's extremely thin compared to  length or would better put your fault membranes or like that your honor put your finger right on it indeed it would be redundant in the context of these claims because the membrane that it's claimed is a thin membrane therefore if dr storm is correct thin in comparison to and with y have plain are every membrane that is a thin membrane would be plain and judged all the other point is my friends on the other side take the position well dr storms position should be credited but it was expressly rejected by judge long stream as the claim construction for plane are below so it stands to reason that the playtex membrane can infringe on a rejected definition of plane or is it an overstatement to say your view of the declaration is that it's a complete nullity because it uses the wrong yardstick yes sir it is my position if you are not overstating your disdain for the holy curve you're representing that throughout its length or width the surface of the membrane in which the slit is found has continually kirk yes there is no flat portion at all yes  fact judge once from expressly noted and we highlighted in our brief that even if you can even if you take the flat earth example and you say well gosh if we minute we dissect this curved object we can we can sense that there is a flat portion of it somewhere the slit in the playtex membrane and this is in the record and in our brains runs almost the entire diameter of the slit we can do with that is clearly visible in the in the diagrams that have a very large curvature and a very small dimension that one could argue that therefore it's relatively flat i don't understand freeman to argue at all that there's any portion of this membrane which is in fact flat and the engineering drawing to ten seventy eight establishes that it is not flat i'll touch briefly on yes rather let me tell you there you should get to it wasn't written to i didn't understand mr starr to argue this morning for equivalent infringement his argument seems to be purely that he's entitled to a jury decision as to the literal and only reason i raise it your honor is in the blue brief and we addressed it in the read brief but if you honour's don't feel they need to hear that i'll just sit down less or any further questions all right things are less mr star member in fact a coordinate system the court system is is explicit in the district court's construction of the plane or section the district court said that a plane or section thin membrane has a flat two dimensional quality in a reference to two dimensional is not referenced to important system i'm not sure what it is so what we retained dr store to do to tell the jury is that how in the world can a structure that has conceded lead thickness properly be referred to under the porch zone claim construction as having a flat two dimensional quality and what dr storm did in about two pages of his declaration was explaining that in the world of membranes there are two dimensional membranes that are modeled in two dimensions whether they're flat relatively flat or good that's that's the problem here that a surface can be two dimensional but a surface in and of itself is not structure a membrane is structure in that it's got thickness  news and is therefore three dimensional so what dr soren was trying trying to tell a jury in trying to tell just long term is how can a structure that has  literally called a structure that has a flat two dimensional quality and he invoked the two dimensional versus a three dimensional system in order to do that it's good i think your honor you raise the point what would a reasonable competitor believe was surrendered here and a reasonable competitor knows and would have looked at the structure of core duckbilled duckbilled valve that cannot open on structure the assumption is clearly three dimensional can not be modeled in two dimensions versus a playtex membrane that is clearly relatively flat and the three forty we believe that the rationale for the admitted here was to distinguish quite tight balance which have a radically different scene mechanism and structure at the location of the opening then do either the three forty seven pat membrane or the playtex leahy or he doesn't dispute what the purpose of the amendment was the issue is what's the effect of the solution shows and you say well even though we used a broader than necessary word namely planner a good patent lawyer would read the prosecution history and see that we meant plan or in a narrower fashion then might in some other context of been the case and therefore it should be understood in that in our fashion you seem to me that's the that's the essential dispute here what's the correct understanding of planner based on what the judge said and whatever we can infer from that and the judge did say again that a flat two dimensional quality means that that particular structure is relatively flat and i would i would refer you to page eight thirty says relatively flat was used in a totally different context as are separate statements from having a two dimensional quality i would disagree in fact the on page eight thirty two the court district court raised enough what does the word planner mean in the word plan or appears twice in the claim they were not distinguishing between the two different uses they were trying to get their head around what just plain or mean in the context structure including the it including the membrane all right i think we have positions of both sides well in mind very clearly stated by both of you we thank you very much but take the appeal under advisement t