florida virginia in the district of columbia i have no knowledge of his credentials for awol and roan is my law clerk and has served in that and so she with distinction for these past two years least a genuine issue of literal infringement under the circumstances of this case the ground of summary judgment should be reversed for two independent reasons first the district courts conclusion that the sea channel is part of the corresponding find at line twenty six of calling or in fact home for actually calls out the present invention also includes connecting me and earlier in line three of call them for the seven one zero pad you'll recall that it calls out separately for connecting limitation for the reason that claim differentiation would require that this not be a part of the plane limitation or the connecting me for example i draw your attention to claim eight which very clearly in the past and the sting wishes the sea channel from any part of the connecting means it's where in adding an additional limitation to everything else founding claim one where in the first end of each stroke rail i perfect reference to the to the column for line three in the caption description i would further call your attention to claim twelve there again we have a case of playing differentiation harness and how that construe where is the linear reciprocating motion in the the linear it's arc to there is a slight arc that is correct your honor under the circumstances of this case the under the testimony of record demonstrates that that flight market motion is consistent with and substantially similar to the linear motion that must be converted into a lift a commotion and so what we have is a situation where even if there is not a flight in the literal inference certainly there is a finding of sufficient evidence to demonstrate infringement under the doctrine of equivalence and it's been demonstrated as as dr rafter the expert in this particular case pointed that the insubstantial differences between the slight r q of motion that's converted into elliptical motion is simply provided for and demonstrated as almost identical and it is also helpful to understand that even the expert for octane said that these parts of the crank are when we get down to the essence of what the connecting means is are interchangeable but articulate motion was in prior art  honor if what we're doing is identifying the single element instead of the claim in its entirety then the existence of the arctic ocean of progress would be an issue but here it is not for the reason that it's only a a singular and subset of the elements that must be shown in the prior or art in order to overcome the case for infringement that's not been shown in the court below and in fact the court in route to the determination granting summary judgment ignored the under about evidence of record demonstrating that there was indeed a case of equivalence with respect to that particular play millet and distinguished from the prior art because none of the prior art your honor included the required elements of selectively varying the size of the substantially elliptical path and so in order to overcome the claim it would have to include all of the elements of the claim it does not for that reason there is a case of literal infringement in our submission and at even the worst case scenario under there would be sufficient evidence to read man to the trial court on the issue of doctrin at the point where we see in the appendix twenty five thirty five the octane reply brief octane concedes that it has structure that i can fit reasonably argue is equipped with the structures have the capability of converting your honor a linear motion into an elliptical motion that capability is all that need be shown this course decision into the packet make that very clear this is an apparatus claim it's what it is not what it does connector has the capability required by the claimed function i'd like to turn briefly to the stroke rail argument the district court adopted a claim construction that this court has condemned as rarely if ever correct in the instant case it is the incorrect interpretation the district court improperly concluded that there is not a stroke really need to use devices because there are intervening parts yet the intervening parts that are shown in every single embodiment in the seven one zero pattern demonstrate that such a construction which simply disregard the law that requires that the claims read on the embodiments found in the pa and so what we have is a construction and you show me some of the into the in your honor in figure one the individual parts and intervening parts would be for example pin seventy six there you  have a situation on the crank arm that is the intervening part that connects and in the acute products you have a number of parts and food in the actuator it's referred to b admission by octane as a stroke rate that stroke red contains additional parts intervening parts such as a motor a screw that is used to lengthen the stride and each of these the intervening parts between the connecting means and the frame and so the structural is comprised of and in this particular case there is a differentiation that's drawn between for example the stroke rail the seven one zero patent and the rocker linkage portion but the court has basically said what you can't do is have any intervening part in order to clinch but each and every one of the case if we look to the radio the structure of the district court's interpretation is found at eight forty two and forty three critically the last line of forty two and a forty particular case octane admits that they have a stroke right and they admit that at eight twenty ninety six they admit that you forty seven has a stroke rule that made it a sixteen fourteen through sixteen nineteen in eighteen separate references acting to expert refers to the stroke rael contained within the accused devices inch at sixteen twenty of the appendix octane to expert asserted that the q forty seven employs a fixed late stroke gr but it would be in is as in the patent suit they are attached through the parts as in the figures in the pack and proper construction of the stroke or element that's not and should not require the structural extend from the foot rail to the frame there is nothing in the specification that even suggests that this is a critical or defining characteristic of a stroke wrist effect it would be strange and inappropriate to define a claim element in terms of what it is near whatever multiple times does that suggest that maybe this use devices a little outside the scope of your client no your honor this is a case of literal infringement in the accused devices there is a connecting means problem for clearly demonstrates that connecting means is the crank arm even octane admits that its crank arm is essentially the same crank arm shown in the patent but you don't have any and has the capability to transform convert that linear motion into a little motion and that is all that is required for so it to this court's been jan decision the cyber civil case would also be instructive in this regard it is only the capability that must be demonstrated that is certainly there that is a case of literally pritchett as a back up position your honor we assert that there is an rebutted evidence in the record that at the very least there is infringement also under the doctrine of equivalence and it has gone on rebut taking all of these inferences and viewing them in a light most favorable to the nonmoving party i call this is a case that is right for adjudication at the trial level launch right in and if you find yourself in vast need of something well you're not it please the court my name is rudy tells her what the law from a partner sticky appears here on behalf of the apple e octane fitness octane prevailed judgment on infringement below the district court's ruling provides three separate grounds for this court to grant affirm and of the summary judgment grant first octanes linkage has no part that a linear path second octanes structure has no c channel or equivalent structure that would cause a piece of a linkage to go in a linear path and three octane linkage has no stroke you're out of the the term stroke rail is one that's not defined as discord knows so we struggle below as to what is a stroke real it's shown in the figures so we know what shown it's described in column three and column for that's all that describes that goes from down here to up here there has been some confusion in the record as to us admitting that we have a stroke real to clear up that that record originally in this case was only the q forty five machine they took the position that our actua casting was our stroke real stroke resume top where we set up you can call it that if you look in the queue forty five machine there is a motor and a screw on the q forty five to forty seven is not the case at this point there's a motor that attaches between the actuator testing and the foot rail so our position was called a stroke where we don't care then ultimately they added in the two forty seven late in the case and at that point the two forty seven constructed differently what they call the stroke rate directly connects to the foot rail at that point i said ok what is a structural and that's just a matter of plain construction we're all here what is a stroke real we did our best below tied it to the intrinsic record you can tell the judge montgomery who is a judge who's handled many patent cases who conscientiously deliberate opinion looked at the the spec looked at the stroke rail and defined it along with us below they didn't they didn't complain about the word extent that's a new argument on appeal if you go below their arguments on the stroke rail where that was a limitless collection of parts which judge montgomery correctly rejected because that would read on every elliptical machine so they didn't argue that it didn't extend up there we've never set the stroke rate have to connect directly welded on to the frame of who says it extends from down here to up here if you look in the drawings you look in the spec that is only invention it's described it's a rigid number we've never argued has to be unitary we don't care whether it's fifteen parts welded together or three parts bolted together that member is a rigid member that goes from down here up here i think judge montgomery's interpretation is correct they didn't they didn't complain below about extends and they should be heard to be complaining about the word expense on appeal but what we can say is we don't have that piece we don't have a piece in our linkage system that goes from down here up here what we have is a multi part linkage system so if you look at for example the rocker link which they want to say a rocker link is a sea channel the rocker link moves with respect to what they call our stroke rate we don't have a rigid piece that goes from down here to up here so whatever we all want to say stroke realize we don't have that equivalent piece in our device but about the neck and the the connecting means  what they're trying to tell the court is by in the spec one part as to their crank on the use the word connecting us as to the sea channel use apache's and so their argument is that because the claim says connecting means it can only refer to the one by the statute claim differentiation is is trumped we have a duty under the statute to go look at the spec and figure out what structure performs the function if you look at column four of the past it is absolutely undisputed column for mines three to six the present vention also provides attaching means this is the same channel for attaching first and seventy to support stand sixteen so as to simultaneously naval annular rotation and linear displacement of the first and read further down column for line sixteen seventeen first and seventy of stroke reels sixty six is thus linear displaced as pin seventy six is we move within the channel now they go on to say that the connecting means also helps with this function but they directed the path of the pattern directly ties the linear displacement function to bo and they had two options if in claim one they wanted to only cover that crankshaft apparatus they had two options one they could have a claim one not the means plus function two if they want to claim one not to riyadh but they want to use means plus function in the spec they need to have the crank arm relate to one function which could have been to move the rail without talking about linear and then the c channel to be what makes it go linear there expert unearned venture she has me admitted that without the  channel that thing moves around it won't go linear the spec confirms that underlay a tremendous the end of the discussion the c channel has to be and we don't have a c channel we don't have anything acqui what about the linear reciprocating motion why isn't the slight arc least the equivalent of a linear motion well there's a number of answer to that question the first i would start with this is court so precedent friedman were a very similar issue was considered that was yet a folding sea and the element in dispute was the attaching means in friedman ironically because it's really quite on a just reaper forming the doctrine of the quibble it's a second time so that we can have the fiction of calling it a legal doctrine it's still the legal doctrine of whether there is substantially the same thing going on when logic head on i didn't mean to so just that i wasn't going to answer that direct question is i like that question because it is it's the philosophical question it's right question to ask what friedman says is there is no formula for vitiated you have to take into consideration the circumstances to the jury well they had the doctrines and substantial difference so if you call that effect issue that's fine in our case the circumstances are we have a rock or a link that's fixed amongst a in a pit with an arc they keep calling a slight  a it's the answer to my question has to be yes you believe that no reasonable jury would as a factual matter find this to be linear yes to that coupled with adding this is the way you phrased the question i had i think the answer is absolutely yes but i think it's just not only because there's an arc is different than a straight line and not only because that straight line was actually the point of knob and see which the examiner  on those are all important reasons why the answer to your question is yes but further to that which is why i think this is much more than just that we didn't take their seats channel but see the court didn't do that the court said no i'm just going to say as a matter  of the same it didn't answer the the more fundamental question of whether there is a factual distinction between a line and our that is correct your honor judge montgomery did not we have to send it judgment that there's no reasonable jury that could find this you have the same record before you that judgment and i'm not going to guess on factual issues i'm going to send it to a fact finding i don't know that any jury would be within its rights looking at these devices data mining that these are quibble entirely consistent and reasonable are you can make that argument well and i'd say that that is what i believe  the only that's capable consistent with the case authorities finch and in particular of performing the function defined if they're modified not even without my well not not with modification of the capability exists in the device itself demonstrates pulls out the device contained within the accused watches as a stroke they admit it they did it because it's present with respect to the freedmen decision that is a difference between the difference in failing to recognise the patent process what it requires with his just to acknowledge what advances are made and leave the rest or improvements not at all your honor in this particular a lens very very closely and appropriately with the cases that speak to the issue of degree here it is so close and that is again as this court pointed out in your question on the question of fact determination something that should be determined at the trial level by the trier of fact this is a case where it is so identical and where you have a clear and unmistakable capability in the device at hand that there is no problem with it were suspected determination of infringement literally and also under the doctrine of acquittal it can be shown if necessary under the circumstances of this case  requires the reversal of the decision below when taken appropriately and every inference every factual inference and evidence of record viewed in a light most favorable to the non working party i