district court for the northern district of illinois who yesterday and today has the phone here do so up a man argued issue ranks and sit on a panel including this one and in terms of government thank you so much for your generosity in your help here thank you very much for having one of our pieces today will be submitted later today on the brief without benefit of worl argument that is sanchez versus merit system protection board which is appealed thirty two seventy nine from two thousand and eight will are i suppose for the opening and the appeal there's the question of infringement of the six one five patent that question in turns entirely on a plane construction which is whether a compression mechanism biased or you can assume we've carefully read the briefs so you have to get right to your quirk contention on appeal of why that was reversible error in the clean construct ok with respect to that plank destruction for the plain meaning of the term as actually fast fact the defendant argued to the district court there is not quite a plain meaning if the claims looked at in the abstract and separate from the specification which of course or it wouldn't do but the plain meaning it does happen to be consistent with the proposed construction of zip wall which is something that  mechanisms of a more rigid mechanical fort that could be compared by a layperson like myself with the car jacked a number and it looked to me like  was in front of the district court was the testimony from professor slocum who said in the context of this application i believe that this would copper things that are not screenwriter i mean i don't care what some professor is for these things to work all they need to do is generate something a force in the poll that the boss is tension that's all that's required and so when they disclose the spring that is one way to do it but they disclose alternative they don't say springs or spring like exactly what we should be looking at it is a compressor mechanism because a compressor mechanism is something that generates a compressive force and the pole hold it in place that's precisely the way that the patent uses those terms it talks about  in the pole using the word compressor so the mechanism the compressor mechanism is something that generates the compressor force and again that is exactly the way the words are used in the specification and it is consistent with heavy alternatives to strain we were limited to what the public was put on notice was within the bounds of this claim it looked to me quite clear that the public would put on notice that spring like mechanisms are covering and things that don't operate like a spring are not covered quite the contrary your honor the the public was put on notice that the applicant was calling something that generates a compressor a force in the poll a compressor mechanism the applicant was defining the term by the way it is being used and if that weren't sufficient the applicant goes on to say can russian mechanism includes springs and that pneumatic springs and drops previous but pneumatic mechanisms and hydraulic mechanisms and those things are not expected in this context to be springy this isn't a car it is they can be or they cannot be and there is a way and there is and there is nothing in the well i don't know i don't know that that's true and i don't know that person of ordinary skill in the are in this to language that seems to me to be the key language here because it isn't just compression to use a compression mechanism bias to urge said head away from said automatically because the compression mechanism is biased to the head away from the surface and judge michele said in the other body definition of the curve that a spring like mechanism which is up right so it can't operate in exactly the way of the spring the only difference being that the compression mechanism is either automatic with the spring when you release it where you compressed the pole and then you go short i guess and they don't both get short if you're talking about generated impressive force when it's in install all of those mechanisms do that by being activated to push the head towards the ceiling and they both result in the same thing which is a  no matter what form it unless there's something that i'm not aware of but getting rid of the invention and that is what the rest of the claim your honor is we're not just talking about this one limitation there are a number of limitations this was this was really remarkable zero seven six which had been dismissed out doesn't even require expansion of the poll right there are a lot of things and what used to happen is like what was shown with the two by fours in the briefing was they did add piece of plastic and jam something in there there was an assembly to do it and what the inventor did was they found this cleft that you've been put on it's better than jamming plastic up against the ceiling because it creates additional friction up there so you don't have plastic up there you don't have to poke a hole of plastic there's a lot about this invention that's innovative it's not all about the compression mechanism the only reason we're talking only about the compression mechanism is that the only limitation it wasn't math but best not to mention the invention is the claim as a whole you want to talk about oh poor  pull it covers like a leg coming off we defended our use that it should require two legs off of the same side and that's the issue in a nutshell there is nothing in the plane that their product with no longer a market that modest time the product is no longer on the market but that but that simply takes the two factors of balance of harms and public interest and makes them totally in favor of an injunction and if you look at the reply brief for the defendant they say well we've designed around so it's highly unlikely we're going to start selling take him best buy we need an injunction it's not impossible and we are entitled to an injunction against a direct competitor who's the only other person who sells through a significant what well yes occluding by the defendant it just happens to be that we can in this case and it's not a player market and you implied in your pre it's only a two player market on amazon but in the broader marketplace there rock of people who make the compete and they're all small regional suppliers they're the only significant large national retailer out there that sells this kind of a device as evidenced by the fact that it's on amazon dot com as well as  stopped offering though using making it better and this device the month that the complaint was filed back into quiet so we've gone almost four years with no infringing activity whatsoever we don't know that your honor  several things that we thought were legal or including that the court said i require quantification of lawsuits well you can't quantify lost sales that actually supports a factor here but i know what the market was here to see whether or not it injunction should issue isn't that what most guess and frankly when would you ever get an injunction if this were not a circumstance where won't be granted which is why every morning you really needed like if they were doing no injunctions often grant when a competitor is stopped and there are the morning he's the core of my name's mike froman i represent fast as you know this case involves three patents and i'm not going to bore you with a summary of the arguments on the materials that have already been presented in the bike devices you wouldn't be infringing in any of that right because we don't have an but that quitclaim construction did not say that right don't think as i read the court construction it didn't lock war not once green like hydraulic devices history and specification a spring in this is required and so i guess like a hydraulic on a car a shock absorber that sort of thing is springy it goes up and down i think the reason one of the reasons it hasn't been discussed or why this thing needs to be sprin that somebody standing on the floor can adjust the fit of a curtain by pulling down on the springiness releasing the current pulling it and then letting it go and it pins the curtain up against the ceiling again so it has to have that spring is in order to make that sort of an adjustment and i think that's pretty clear from the written description the drawings the impression of pressure means to you think squeezing still have invalidity claims that were not ring we had as mr lowry it pointed out that discovery was never fully explored in the case and so we didn't have an opportunity to fully explore validity  sorry i wanted to just quickly address kind of a threshold issue here and that is whether or not there's jurisdiction before the court whether there was a final judgment entered by the district court or not i think because of the damages question remaining with patent and then damages and infringement on the old seven six patent that there is a question as to whether or not that is a final judgment i know that the plaintiffs had by conditionally weight without prejudice on its right to go after are the accused device would in brain i will have to go back and do a complete analysis of the from of the claim we felt at the time that because we had this clear forth between the applicant and the examiner say well you know good changes language you got to do that or whatever but my sense of from reading the prosecution history in the entire pattern is that the reason they entered that plurality of legs on at least one side was because that's all the pat showed that's all that the applicant could get out of the examiner because each of the drawings i think it's two for eight figures two for a seat all show two legs on one side of the clip what the applicant ended up getting out of this was a plurality of at least two legs extending from at least one side of the clip and i think that what you read that the prosecution history and see those drawings it makes sense that that's really what did go on this case and what happened there was a telephonic conference between the examiner and applicant which always makes my life difficult as a complicated because i'm not really sure what was said in the  gore had said it was dramatically but that if it if that was corrected you could parse that out dramatically was legally and grammatically incorrect in view of the prosecution history specification and wrong so it does not spring is the preferred component and it says with respect to figure sad this is what you could do with an embodiment that has that extension you could hold down and do that it doesn't say that that's the only embodiment or that it has to be a spring have to install it with respect to figure seven for all of the claims that may ever issue now if the court looks at these claims there is no extension in these planes there isn't a dependent plane claim seven but there is no extension loop in the broader independent plane and what is more like in bad limitations also met the a minute with respect to when under pressure actually shows it's not a spring a spring pushes it away only when under russian when the worst one hundred pressure moved it actually makes clear that they're not talking about a confused by looking at all these drawings of both devices your claim number one is a malka taxable to an extent imposed so your get your device actually screws onto a painter's hole like a paint no well i know but it looks like me one one piece no effector different colors and i believe her this is an abridgement argue that was never articulated by the defendant so i don't have a lot on that in the record i know i realize that and i because others in the arc don't call that letter before the district court no your honor i don't think that it actually had published at the time i get it that's why for long before the district court proceedings but it had published as of the time of the district wor as as well as the plain language of the patent and the draw its claim thirty five of the or all four patent must be interpreted require a clip having no less than two legs to extending from an east one side of the play and that this exactly what