my name is frederick t c counsel record repellant try to take technologies incorporated and we are here today to address primarily the sole rails the entry of summary judgment against tri tech by the lower court on the issue of patents invented this revolutionary machine that for the first time that short approximately seventeen thousand pieces of mail you know nothing in the prior are remotely suggestive or disclosed this novel and groundbreaking technology which is lead to almost eight hundred million sales of the defendant there are two compounds of this machine that are an issue for the purposes of this appeal one is the feed conveyor stationer section which is where the item mailer placed on a moving request the lower court grafted unnecessary claim limitations in the claim terms addition now the sole means the sole reason that the lower court entered summary judgment in this case was it found that the huge transfer was not just opposed the entire remainder of the downstream discharge and as the meal came down and in so doing the lower court properly defined transfer of means it probably defined the term juxtaposed but it improperly defined the term a regardless of the improper determination or playing destruction of the term remainder why take summary judgment should not have been entered against try to because the clothes device still transfer has a transfer meat which still extends the entire remainder why do you challenge the court's construction of remains why do i tell because you are the lower court granted an unnecessary limitation that the remainder had and these in fact the specification showed a transfer of means that doesn't extend to the entire me so the lower court there was no reason there were definitions of remainder that were used that were presented to the lower court to the not include the rest there were dictionary definitions that included something that is left over after other parts have been taken away for the rest and there are other induction of the included not taken usually go on left over there is no reason why it had to be the entire regardless you are given the definition of transfer means which a lower court properly construed in accordance with the specification to include the belt motor in polish that device the transfer means of the accused device extends entirely the downstream discharge the first basis for summary judgment by the lower court with respect to the transfer of beans was that the lower court found that the motor of the accused the vice was too far away from the downstream discharge and to be considered just opposed three of that the second basis for summary judgment was that to transfer means motor could not be juxtaposed the downstream destroyed ten because there was a d stacker plate there was an element of konkona in between the motor and the downstream destructor in connection with that the lower court found that because of this intervening element they could not be juxtaposed but that again inconsistent with the specification which teaches that there is a first back in chamber seventy one a second vacuum chamber seventy seven and the claims in the specification indicate that both the first and second back in chambers are juxtaposed yet a review of figure three of the pack and feels that there was a wall or one of the weight and a bell one zero two in between those two back in one hundred or one hundred ten your other numbers one hundred ten is used frequently in the record in the number one hundred ten at certain points and i was left unclear as to just what we're dealing with when the there was nothing in the prior are taught were suggested that mail stacked directly perpendicular which are critical for an aspect of this event there was no express disclaimer there was no statement discussion in the specification and in fact a review of the specification reveals that the paddle is adjustable on three lines thirty seven thirty eight that's the path of the whole of the male on the conveyor section those of ordinary school yard would recognize that an adjustable paddle is there to move or the defendants contend the head try tech wanted to claim in non perpendicular orientation for the male it could have used the term not perpendicular but try to did that they used the term vertical which would include directly perpendicular slightly off the perpendicular provided it was upright or racked in accordance with the with the specification as well as the ordinary definitions which were from the floor how would you decide that it's erect other than by the hankel in other words if it's anything are you saying one forty five degree angle is erect when suppose you have a lot of flat nail is sitting at let's say a thirty thirty five degree angle well interestingly your honor in there was testimony this below the male can be  well we need to meet you're going to have a dispute presumably maybe not in this case but at some point in which somebody is going to say well this isn't one hundred ten degrees it's one hundred and fifty degrees or it's one hundred and thirty five degrees what is that vertical it may be in them as they are in this case that's not to say you have a term yes and you know we need to try to define the term specification of whether that's forty five degrees or sixty degrees or seventy degrees which change would be relative to your i would say that a meter or your definition of good read on something that was thirty now because that would not be a wrap that would be thirty degrees would technical documents for people ordinary skill the author a last element that i want to talk about is downstream discharges the lower the defendants convince the lower court to grant the unnecessary limitation that downstream discharges had to be an right you believe my pirate watching your honour's it's from times i know for sure it isn't the case because that issue in front of judge damage was put on hold because both sides thought infringement could perhaps be disposed of and deal with everything claim is language is not means plus functional language the climb climb want to climb for both describe sufficient structure to perform the function that function being for removing the downstream most item of ma means and convey the downstream us time of mail to the delivery station no one disputed both parties agreed and the court of federal crimes found the construction of transfer means to be second vacuum chamber and the transport built there was no argument made that the construction of that term required motors pulleys drive bills were at the statue played as part of the transfer means that's because the corresponding structure need perform the re function it does not need to enable that function otherwise you get to the were we stop is it the motor is it the power cord where does it end under quite thirteen that's that construction is actually instructive on this claim thirteen had no structure for what the transfer means was and both parties agreed and the court below found that the structure to be readed to the transfer means it claimed thirteen was again a vacuum chamber the meaning of transfer means is the motor and the rest of the machinery that's behind the the end plate i don't think that it was great as well as i have read the brief i don't believe it's a challenge on the claim construction of transference it was certainly never raised below and it was never argued below the are either brakes one of two ways to present either brake says the transfer means has to include the motor in the q s product that begs the issue of from a claim construction standpoint was the sufficient structure to perform the function of the transfer means everyone said there was and now the question comes in on an infringement analysis i don't know that it's a challenge to the construction but is a question of the infringement analysis can an l component of the product be incorporated into what the transfer means is that actually does not perform the function of the transformations but if defendants and third party fans contend you cannot the proper place to look at the product is again what portions of the keys product perform that function for instance the including language which and watch the battle is over including i agree and i'm certainly granted it doesn't mean those are the only two things you can have in you in the belt but other items that you're going to read into transfer means when you can analyze the cues product must perform the function of the transfer if there was some latch that grab the mail when it sucked up to the belt where there was some stick a light product on the belt another piece of the accused product that could be part of the transfer the motor that's also in the pattern itself but is not part of the structure yes search form a function cannot be part of the component or structure you look at in the accused device to interpret transfer i know this i think one of the briefs characterizes a house that jack built type question of course that it's right but that doesn't necessarily mean it's an easy question  result what is the principal basis for c the motor does not perform in any way or contribute to the performance of the function the argument is that the motor itself enable her and structure the vacuum in the belt to perform the report stated function that's the language from a system that t r her case deals with also both of those deal with all the constructions and not so much an infringement side and i don't believe there's clear guidance in a situation where it's not it's either means most functional language of structure is ready to exclude some other enabling components or there is sufficient structure set forth in the claim itself which is the case here and then there is some enabling component for instance the motor the motor itself does not remove the items doesn't ever come in contact with those it no differently than perhaps the power cord or any other per piece downstream enables that belt or the pump for instance if you're going to count the motor if that's if that was for instance required to remove the items mail which i don't believe it is then the pump powers the vacuum and then we can just keep taking that step all over the next to the power company right so the question as i understand but it will go ahead is is it acting on is it removing the items of ma room that is the function in the transfer means that must be affected now this issue is certainly perhaps one of the more interesting academic issues here but it only doesn't matter for you to affirm because even including the motor there would be no infringement literally of the transfer means and judge damage below addressed that he didn't need to get to it on claims one for if you look at the claim thirteen analysis which has the same structure in that situation judge damage says assuming even if it's the language and summary judgment decision the motors the pulleys and everything else was part of the transfer means the court below did not find that those elements were ordered the transfer means the language on  that we're going to look at the motor and look at things on the perhaps the non business side of this device behind the distractor point and assess whether those meet the limitations of transfer means even if you could read them into transfer means they can never satisfy the requirement of juxtaposed across the remainder because those require it to be juxtaposed to destruction i think the business side of the machine which is what the specification shows and the other intrinsic evidence could in t in which this transfer means would operate to perform functions restarted in the absence of remote well i don't think it could be enabled if you did not have a motor i let's let's not be cute with words just give me a direct answer zero any way in which the transfer means would function as called for in the claim without the whole i don't believe the belt your honor could turn without the motor there could be other ways of powering a belt but ultimately a bill standing on its own will not move anything so why those why use the motor than necessary for the transfer for the same reason that the motor would need to be powered by something and it's a question of degree and we're un and the guidance we have from the court on this is it must be necessary to perform that function but unable into if that does not it's not something we're going to read and if we're looking at it for the sufficient necessary structure or in this instance on the infringement side of things and i agree it is a question that is not absolutely clear i think the right answer and i've not found a federal circuit case that hits this issue of downstream not to use that  claim and even when the specs for the prosecution history talk about transference they never talk about it as including a motor and that order in fact was not even made from a construction standpoint because i think at that point the argument would have had been made that this would be a means  function if the motors necessary will then claim one it would not suffice state sufficient structure and then we got to claim thirteen we would have arguments to bring order and nobody looked at that way not try to ignore the defense  there's guidance on this issue judge when it's t r group automotive and its sister knowledge both of those cases deal with on the claim for trucks inside this situation and there are pieces that are perform or you could argue enabling or otherwise  the pumping means in that case and t iger talks about it in a similar way alternately the discharge or the destocking plate which the court below found was not part of the transfer means it had never been argued not on the briefs not in any claim chart in the court will found it to have been waived that on white crime construction would be subject to abuse of discretion standard the waiver of the stacker plate as being part of the transfer because it's not in the transfer means it preclude the motor from ever being juxtaposed to the destruction and that's the plane thirteen analysis jets damage went through because he looked at even if you count them over so while i don't think the motors part of the transfer means this court can affirm even if the motor was part of the transfer because the motor is on the wrong side of the machine separated by the stack plate and as was found below could not by a reasonable fact finder be juxtaposed the discharge and and even then if you count the motor we read out and ignore juxtaposed it still would have to satisfy the remainder limitation has to be across the remainder of the discharge and ten i think it's five a half inches if you count the motor it's ten inches below that there could not be an argument under the dr but once that ten inches is the will of twelve when you've claimed it as the remainder and i agree i think the poor fellow remainder means the rest of the ordinary meaning in everyone's definition o remainder is a specific term if i have not i'm apples and you take five the remainder is for it is never to two or more three or more remainder means the rest and that's the meaning of remainder that's how it's set forth in the specification there are references for instance specification j want to live in column four winds fourteen to sixteen the second vacuum chamber extends the remainder all discussion during prosecution was the remainder all of what is rest or what is left the rest only at the end there were some fourteen or so uses of god in the klein language that were rejected on amc basis grounds they were all changed a or a it was removed entirely including the remainder changing it to all remainder did not by any stretch of the imagination help broaden this and even then vitiated the limitation if you read it in on the doctrine to try to fit this device on your place that certainly would sound to me as if it would be a reasonable reasonable to conclude that that is an equivalent of the remainder now extending that the remainder has this kind of mathematical precision to it that we sometimes attach to and in the setting you would agree with that right a sixteenth of an inch it's the remainder for all practical purposes right well that's that's the rub and that's the situation you can have in the more case forty seven percent it says majority would most everyday people think come on isn't that really close to fifty percent or one sixteenth of an inch difference and when you use terms like that and you claim it the way you do a term that is for instance majority of minority cannot be that others in the or have to act and rely on that language and ultimately what we learned from warren sage products and so yankees is you cannot do that so while i think we can all see is it really fair is it that's the way that's the court's guidance on this and more importantly given this record there are also statements made during prosecution specifically distinguishing the decatur reference again saying the remainder and once you now have the language is the remainder everything below is the remainder and statements to address prior art of the remainder i don't know that now between that argument and the language itself and we can read that out because otherwise we are in effect the with of the downstream discharges and if that's not a deal we case i don't know what is with respect to this issue and transfer means during the claim construction process and it's a page nineteen through twenty two of the lower court's opinion there was really no dispute about what the word blasting us on this issue transfer beats it's in our brief the defendant's own documents which define their d stacker station show the mode the specification shows the motor was part of the transfer of means and they can clearly be  juxtaposed for the reasons which i talked about above and as noted in footnote one of our reply brief the lower court agreed with the point that the transfer means of the accused to place clues the belt back in chambers drive for those reasons