my name is john carlson from carlson gaskin olds an intellectual property firm just outside of detroit michigan i'm here on behalf of pacific company pacific company has been owned by the family for three generations to make a variety of reusable plastic packaging products it's not a it's not a name that consumers see on the ordinary on an ordinary daily basis but if you go to the grocery store limitation it's the closest well to things you defined it in terms of use did you give us any structural definition of what a top frame is it was not it was defined not just in terms of use to its eighty one fifty two column two lines twenty seven to twenty nine to yes on line twenty seven pellets typically require large openings for receipt of pallet jacks and then later in the specification column five lines thirty eight to forty three the top frame is typically used to help stabilize the shipment objects at the upper end in conjunction with the pellet at the lower and so but i'm still now looking for a structural definition of top frame you gave me a structural definition of a palette the well then we have isn't doesn't the patent office have a point that you can easily put a pallet on top and it would perform the top frame function and therefore qualify as a tough right that's assuming the definition of again under the bell atlantic case i think there's a definition by by implication and the bell atlantic case they said consistent usage in the specification can even trump the ordinary meaning now in this case we don't have to trump the ordinary meanin because the ordinary meaning as used in the art is consistent with the way we used it but even in the bell atlantic case said consistent usage can trump the ordinary meaning but i think the language you sid structural limitations even if the structure was discussed in the specification we don't import that into the claims but first most of the cases like philips or  trans texas case are cases where they are trying to import limitations straight out of the spec typically under the single embodiment rule the fictional single not in that rule that we only disclosed it this way distinguished from one another then you can create a definition that way in the sense that is that equally applicable in this context or in dealing with the path of the board and the principle that they're entitled to give the claim terms or products possible those same tools for interpret in the specification are also used albeit maybe with a different standard is it reasonable in light of the special edition in bell atlantic though the terms mode and rate were incapable of performing the same but however the way these terms were used in the specification we were going to draw a hard distinction between them they were defined by implication as separate and distinct concepts in the specification here what would prevent me from taking a power but putting it on top of stabilizing a structure when you accusing me of infringement it's because it's not a top frame and as used in well but i would column you're using the patent offices definition of type frame but our definition of type frame would exclude pellets because if you show me that definition then the definitions that in the spectrum saying the but the definition that we're arguing is that special definition your own lexicography as we call it don't you have to put that in the patent somewhere if you want to contradict the ordinary meaning you do in our case we are using it in in  reference actually takes a pellet and puts it on top of a stack of goods and they call it a pallet they don't call it a top friend they call it a pallet so even with this intended use or this possible use yes you could take a pellet you could throw it on top of his deck or goods it's now a pallet on top of a stack of good does not a top frame you could you could take your shoe put some water in your shoe and drink out of it but that doesn't make your shoe a drinking glass   so i think the specification does a better job even better than the bell atlantic case and better than mars of distinguishing the palette in the top frame the prior art as well also use the term top frame a structural limitation that it be a top frame that has it has each of the structural components right but if it's a frame of some sort maybe a pallet it's sitting on top and it has these exact structural component definition comes from and i think because it was a term of art in this specification it wasn't explicitly defined it's sort of it's if that's what it says and it's  specific ation didn't coin the term top frame and it's not using the term top frame contrary to some established or new meaning it's using it in accordance with the ordinary meaning that's why it says things like a to morning please the court the board reasonably interpreted the term top frame to mean a structure that's capable of stabilizing objects on top of a palette without any specific structural attributes now if you look at column sixteen it tells us that the top rame is defined in figure seventeen through twenty seven and we start looking through seventeen to twenty seven and we get a kind of clear picture of something that doesn't look like a palette at all why can't that satisfy our definitional search well those figures show the two top frames that are claimed by rared and all those structural limitations are in the body of the claims and we don't limit we don't limit the claims to the particular embodiments that are in in the patent but they are these embodiments you're correct all have features which are distinguishable from how can we use those features in conjunction with the plain meaning argument that mr carlson has given us to distinguish talk french from black from poets well i think it's fair to say that pallets have features that are distinguishable from top frames including columns and forklift openings but there's nothing i don't think it's necessarily fair to say that t have features that are distinguishable from pallets in other words a pallet may have additional structural features while the other side tells us that pallets while the top frames have the feature of being planar at  and that their side that no opening on the side there's no description of that in in the pattern at all well let me ask you i'm going to claim twenty five there's a preamble there's preamble language and the board agreed that that was the limit correct yes correct the board agreed that it was limiting but only in terms of its function well what i'm struggling with frankly is that you know if you apply principles of claimed concern of statutory construction to construing this claim you've got two different terms to use which if we were doing as i said a statutory construction analysis one would assume that congress intended by the use of two different terms to be  two different things if that is the way we are to construe it that's the other side's argument and you lose right not necessarily just prose they are two different things in terms of what they do but they're not necessarily mutually exclusive in terms of their structure a pallet sits under the goods the top frame is placed on top of the goods to stabilize them but for example the the prior art what is your definition of top frame well i was going to point out that railroad actually does not have a dust definition of top for it rare rare says there's a customary in ordinary meaning the way the board interpreted it was in terms of what it says there are some structural differences that no one in the industry would look at a pallet you know with its depth and its holes for forklifts and say ah there's a top rein and that he suggests that by reference to prior art in other pieces of evidence that the plane an ordinary meaning to one of skill in the art maybe he doesn't define it so precisely in terms of every structure but it certainly isn't a palette i think he's made that point quite clearly well for example he cites the picket reference which simply shows a top for a minute doesn't it doesn't say a top frame is a structure that does not have forklift openings which is something he wants to say  he could easily say so but if i look at one hundred references to bison goals and they all showed an object with two wheels you'd be arguing to me they don't preclude five wheels from being a bicycle and i would say but that's about what the plain ordinary meaning is and how else can you show the plain ordinary meaning but to refer to lots of documents that show how people of skill in the art understand it to be for example he could have put a declaration from a person of ordinary still in the art saying this is interpretation during prosecution during reexamination could have as instructed that claim terms are to given their plane in ordinary meaning to one of skill in the art he has introduced evidence about what that plane an ordinary meaning is o has rejected that evidence but based on what the p t o is the one with the burden so you've rejected his evidence and what have you all cited to to the contrary or the examiner in the board relied on his pattern itself which does not impart any particular structural characteristics to the top frame it does it shows to embodiments but that's it and again all of the structural limitations of a top frame appear in the body of the claim there's no reason to add any additional structure to the term top prove itself i'm interested in your suggestion that page declaration would have been sufficient to supply what the point you would have accepted or rejected that definition but you would not have necessarily tried to incorporate that declaration into the document itself into the patent document yes right it would just be additional evidence in the record to show what the path mean what a person of ordinary skill in the art would think the customary ordinary reading of the term was there was a dissent in this case by one of the board members which in my experience and yours is broader than mine is a bit unusual and what the dissent said in part at least is i think the dissent was troubled by the language in the preamble and the fact that it described it indicated that the applicant to the patent in this case was really talking about two different distinctive and separate things when he was referring using two different terms to a top frame and then to a pal and why not why isn't that correct again i think they are distinct in terms of what they do the use the uses their intended functions but they're not necessarily completely different in terms of their structure i thought it was the structure is different they're different in structure obviously one is arguably thinner and the other one could have holes but in terms of the function they serve i thought that was the argument that they can perform the same function now i could well usually the wor palette can be used as a top frame but just because it has the label palette doesn't mean it can't be used as a top for the preamble is everyone agrees a limitation correct yes but not necessarily a structural well the preamble says a top rame where in the top frame assembly in the palette have at least one layer of objects positioned there between so that's part of the limitation right it has to be something that's sitting on top of the bottles correct correct ok so there's a structural limitation but yet the board relied entirely for claim twenty five on conic and held there was anticipation not obviousness he didn't bring in a plumber whatever the other references conic shows nothing on top it is a single pallet on the bottom and a bunch of bottles sitting on top it it never disclose using the pallet on top or shows anything at all sitting on top of any of those objects if everyone agrees the preambles a limitation and the preamble clearly says something on the bottom buncha stuff the middle and the top frame on top how can conic intic him to limit something that's that's absolutely required to sit on top all the time a top print then you're saying a top frame could be something on the bottom of the bottles that's no use that the use has to be using it on them i don't understand how we run away from that requirement of the claims once we all accept the preamble is a limitation again i think your are you trying to are you saying that there is a structural limitation in the preamble i'm reading the preamble which everyone agrees is a limitation and well for one thing i think you could actually take out the word the phrase top from and just say an assembly adapted for use with the palette were in the assembly in the palette have at least one layer of objects there between and then the rest of the body of the claim structurally describes and i supplement which morse question yes where is there any art showing something capable of being used on top  well in this case there is flow which happens to show a pallet that is actually being used on top so it indicates that a palate is capable of stabilizing objects that's not cited against this claim this claim was rejected only on anticipation only in light of conic well we're now just talking about what the definition is now kona is and was used as an anticipation rejection because it contains every single structure a limitation in the body of the claim except the wherein one in the preamble so be on top one yes but if you understand on top to mean capable of being used on top to stabilize what i'm wondering what tells us  this has essentially the same structure that's claimed in claim twenty five and you can't patent a new use for an existing prior art structure there is a case called in re schreiber which was cited by the board to anticipate we just need to meet all of the structural limitations that you would equate with assembly and then more given some additional information that it's a top assembly right but again i don't think in the we've talked about the corner graph or it's the examiner on the board found that it was capable of sitting on top and performing that function of a top frame and conceded that they had not challenge that finding at all well the empathy you said it conceded it i saw a don't see a concession but b they're arguing that you are wrongly construing top frame it can't be a pallet and they're pointing to kona you can sing see that's a pallet it's not a top frame i see it all to be a very similar argument i think when you are pointed at something that has the label of a palette and saying that's a palette because it's called the palette but it's still capable of being used as a top for him to stabilize the objects on top of the  a competitor not just any competitor but a competitor in this art that makes top frames and makes pallets and a competitor that wants this pet and invalidated i'm going to get him to tell you that a pellet is not a top frame i think i would think that that would carry a lot more weight and that's what we have here we have a competitor in this art who wanted this pet and invalidated saying a pellet is not a top frame not explicitly but implicitly in the ways that that have explained in the in the br the top frame invention can have various designs well if one of them's a rectangle and one of them is a rectangle with an interior cross that your example of various designs that i think the world cup frames is actually pretty small and it definition of type frame if we were to conclude that claim twenty five wasn't properly held to be anticipated by conic for the reasons that we were discussing with miss pettigrew shows nothing on top not for the structural limitations that you would like but for the other reason would this just be followed with an obviousness rejection in light of flume and that would be the end of it possibly i suppose that at that point i could also amend the claims to include the definition i'm asking for now as well why in the world didn't you do that earlier well i'm not sure when i don't think i was involved but then i was involved maybe i'm not sure when i got involved maybe run final but the rigs and you don't have i