the united states court of appeals for the federal circuit is now open and in fashion god save the united states and that honorable co well good morning your honors and may it please the court this is james day on behalf of level sleep now this appeal turns on claim construction there's no dispute that under the district court's original construction of the terms low body pressure and low supporting surface pressure summary judgment was improper that original construction was pressure of a level which materially reduces causes of bed induced shifting and the dish accorded knowledged both during the summary judgment hearing and in the order granting summary judgment level sleep submitted admissible evidence showing that the accused  that he could not have changed what we're saying is he did change it and he changed it in the summary judgment order so he we submitted evidence that met the original construction and in the summary judgment order he applied an additional limitation which is the only way that summary judgment is granted so that though i think that it was noticed that that was the problem well frank i'm not saying there was no notice right i think the problem is that we were not given the opportunity to evaluate infringement under the construction that was applied in the summary judgment order for instance we didn't consider whether the doctrine of equivalence might apply that's a problem i think the more fundamental problem here your honor is the judge adopted a construction that imported a limitation of forty millimeters  passage he did not say that forty is an upper limit and in the proceedings neither party in their papers had said forty was an upper limit what we had suggested was that if you were going to use figure ten and the related text to it to impose numeric limitations it should be what illustrated there eighty at the shoulders forty of the ways than eighty at the us so we understood him to reject numeric limitations but had you adopted wonder if that upper limit was based on figure ten it should have been based on the figure not up the pressure at the waist in that figure since the  evidence to argue document equivalence for example had you known of the court's claim construction your honor we we did not say that in our briefing when i'm trying to explain i guess two things one is the appeal is not based on lack of motives the lack of notice i think is what leads to an incorrect construction it sort of just the procedural history lead us to a place where you have what i think is a facially incorrect construction ok but you're lying i just interrupt for a minute you are relying on conventional doctrine to claim construction for your argument that the district's construction time correct i'm not going to look at the history for example of where that construction how it was modified by the court because you haven't really raised that instead your argument is that based on the intrinsic evidence in the claim claim language specification the district court went too far in setting  limit find the claimed term low pressure right that's correct your honor the appeal turns on the correct construction which we think is the original construction that the court issued and that imposing a limit of forty simply incorrect construction and if you if you agree with that then summary judgment was incorrect that's the only way that summary judgment could be countered was by adding that further cents that construction would be indefinite would it not well i'm not suggesting that the construction is not bounded your honor what what we're suggesting is you don't need a specific numeric limitation the terms low body pressure or low supporting surface pressure have an objective boundary an objective baseline it's pressure of a level that materially reduces the cause of bed and do shifting  us conventional mattresses are innerspring mattresses and it provides an example of such a conventional innerspring mattress in figure ten we see a woman of a particular size lawyering on that conventional innerspring it shows that her body is not aligned her back is sagging in the middle and it gives us the pressures that such a person would typically experience their eighty at the shoulders and hips forty at the waist thirty on the legs and then in the very next figure figure eleven it shows that same person lying on one embodiment of the inventive mattress and you can see what what the invention is about is having different zones  different firmness foam so that at the shoulder and the hips the body is allowed to compress further into the mattress this is less toronto can i just as is my remembering incorrectly that column sixteen there's a statement that says the pressure will be typically low and below a low pressure threshold and for a tuned bed made of properly selected forms of materials that pressure threshold will be below the ischemic pressure or thirty so what that there's a couple of things to note here one it's not limiting the invention to thirty what it's saying is you may you may have low pressure which is the language of claim one the independent claim or it can also be below a low pressure threshold which is reciting it independent claim eleven which narrows the concept of low body pressure and really in an ideal case the preferred embodiment would get sure all of the pressure is down to the ischemic pressure threshold of about thirty and that's claimed twelve the narrowest of those dependent claims that we talk about another thing to note here and so when i read this when we read this language it's telling us about the preferred embody a preferred embodiment of this invention it's important to note though your honor that this language doesn't appear with every embodiment in our reply brief we cite you know discussion of another embodiment where it doesn't refer to the scheme of pressure at all it does say that the surface pressure at the shoulder and the hips will be low doesn't mention lowering pressure at the waist which is where we're in the going back are you referring to  our reply brief know there's reduced pressure at the shoulder because the zone is allows the shoulder to compress further into the mattress then there's some talk about the waist providing support for the the waist and holding the body in ali is part of what this invention requires and then later and called thirty toward the bottom starting line sixty there's discussion that the hip is also allowed to compress further into the mattress creating low surface pressure so there it's not that there's no mention of the scheme of pressure here and so what the specification is telling us and these examples and in others that refer to the ischemic pressure as an ideal ideal mattress would reach the ischemic pressure and the invention is is intended to better approach those ideal characteristics the pattern is teaching us is that you can improve on the pressure and alignment of prior art mattresses by reducing the cause of bed into shifting so you reduce the pressure particularly at the shoulder in the hips to reduce tossing and turning and in an ideal case in the best case the preferred case you would get all the way down to the scheme a pressure threshold again not confirmed by the way the claims are structured shifting and i know it has that part about the comfortable sleeping level of it and so on but it says it moves the pressure which is below the pressure threshold so that seems to be some sort of expressed definition to your st the st part of the question i do think the sentence that you're citing and call nine is important it tells us that low body pressure is pressure of a level which materially reduces causes about in to shifting that gives us the objective baseline we need or that a person of honor skill mean our needs to assess the term low body pressure and low sporting surface pressure that the st part of the signs tells us something about pressure for comfortable sleep which is not part of the district court's construction and frankly somewhat subjective so it tells us what the goal is but it doesn't add to the objective baseline for assessing whether the pressure is low body pressure which is based on reducing tossing and turning reducing the causes of bed into shifting in the parent's  must eliminate pasta and turning the patent describes low body pressure as reducing materially reducing the cause of death into shifting so if you go back to figure ten you've got pressures of eighty at the shoulder and hence if you reduce those pressures and then this is how our experts analyze the evidence if you reduce those pressures of eighty down to say forty five you will reduce the number of shifts in the night they're not eliminated but the patent doesn't require the limiting that in an ideal mattress would get down to the ischemic pressure which would you know either completely completely reduce tossing and turning but that's only in an ideal embodiment of the invention it's not required in order to practice the invention there are no statements in this patent that say the invention as a whole achieves in all embodiments sub systemic pressures no reference to the scheme of pressure in the title or the abstract or the summary of the intervention it's mentioned in the kind of language i was talking about comparison can be made to an inner spring mattress that that that you believe summary judgment would be in a was inappropriate because the the calculations don't don't support believe that that summary judgment is inappropriate my question is if we agree with the district court that forty is the upper limit is there any basis to argue that summary judgment is inappropriate at that level well your honor i don't believe that the record evidence and the infringement contentions we made based on the original construction provide a basis to change the decision if forty is an upper limit and i would go back to the point i made at the beginning that the evidence does show that that the p five mattress achieves pressures of forty three at the maximum that's an average of seventeen which may very well infringe on of the doctrine of equivalence and that's something that just wasn't before us intel the summary judgment order was issued ok thank you all right i'll restore your three minutes something that that was the basis for the court's summary judgment motion could ever man confidential but i guess i'm trying to understand how we talked to you about some of these calculations one second mr de do you agree with that i agree with your honor i think that is how the supplemental appendix was put together and i frankly doubt there will be any discussion of anything sleep number  brother's time really does the find of the case that we have the happy fact that in this case the inventor's actually gave their view of the proper test edition of the key term view are you asking us to just say that the district courts claim construction was actually wrong and and that the maximum has to be a schematic level or are you saying that the district courts maximum response just drawn to this question that we have the follow on passages come sixteen that actually describe that anything over thirty is not low pressure and so we can't we can't simply say will  of the reality but i guess i am still going back to your agreeing to forty but you agree that forty comes from the figures in the patent itself right well yes you are i just say that figures what do we make of mr torbert testimony that that said that mattresses could have that these pressure calculations are somewhat problematic because mattresses  the the mattresses can practice the patents and suit even though a pressure map shows points of pressure above forty and we have pressure maps that shows some points above forty how did anyone do any analysis of those specific pressure points to determine if if they are anomalies what we have your honor is the dr freeze the plane just expert was allowed to position her subjects in any point is she never attempted to explain those high pressures as anomalies did clothing and frankly given the number of them that she showed it seems unlikely that that would be   comes down as capillary days a new artist flexible and so there are there are physiological problems that occur with with people just as a result of the aging process so for example older people have trouble in different parts of their bod then using forty is just saying whatever that room is forty is about it that's well that's right and i think that's what led the district court to resist the numerical imitation in the initial claim not what happened what happened more he's dead but the lovely the fleet experts was ordered back to the conventional masters analysis and so in his summary judgment order at eight hundred and twenty three dollars he makes it clear that he expected the parties to be constrained by his his too high of pressure reasoning of the claim construction order and setting explicitly in a twenty three that that the court's original claim construction order explain the pressures above forty to indefiniteness but what if anything does the record say about whether a relevant skilled artisan would have a sufficiently definite idea of a spring mattresses pressure profile for the fact to give that kind of reasonable notice that the definiteness requirement demands so frightened as the spring mattress issue out of there was nothing in the record really the st question that everyone would have to confront is what is a conventional sparring match or is there are thousands and thousands of choices  the the level sleep expert chose one that i think was commercially available or perhaps just testing profile but really never explain why that one was chosen out of a one thousand but could have been chosen  resale to know which of those choosing the person but is there something in the record that says among the many many choices among spring matches mattresses the pressure profiles w says we're told that forty is too high that you know that word those words too high or not used in the patent at the patent does not say forty is too high and even the claim construction order did not say forty is too high so if it were if you think about figure ten that shows you that there's pressure of eight hundred and four thousand and eighty then thirty at the legs if forty was some sort of an upper limit or were you know definitional of what's too high there'd be no point in talking about pressure double that at the shoulders it's it's not an upper limit it's not the patten never says it's an upper limb is just not there to support such a statement second the council stated that anything over thirty is not low pressure again the patent just does not say that it it says that none of those kinds of statements are there instead what we have is the objective baseline that it's pressure of a level which materially reduces bet into shifting i do want to on the indefinite question there's no record here of you know thousands of conventional mattresses producing different results i mean that's something that clearly distinguishes this case from sleep numbers citations to the live your liberty ammunition  case where there was a record showing that the you know the baseline the conventional product actually had all sorts of different properties that would change the result there's no record of anything like that here your honor  judgment briefing we pointed out that they never asked our expert that question and frankly our expert didn't address it in the report because that wasn't the construction we were dealing with before you went but you know that just never came up because the construction was not for us and finally and this may turn to be a minor point but the council said that dr friese chose a very small moment to do these tests and that's not true her daughter's something like five hundred and ten and one hundred and eighty pounds certainly much bigger and so the pressures are much higher than the person illustrated in figure ten who's a small woman of two point  zero and with that i would like to thank the panel for your time today thank you all right the case will be submitted and i promise council we won't sleep on our decision i am