[00:00:05] Speaker 03:
Five seconds.

[00:00:33] Speaker 03:
Good morning.

[00:00:34] Speaker 03:
Good morning.

[00:00:35] Speaker 03:
Please proceed.

[00:00:35] Speaker 03:
Court, I'm Pat Wright.

[00:00:37] Speaker 03:
I represent the appellant arsis in this case.

[00:00:40] Speaker 03:
It's an appeal from a district court finding a non-infringement on motion for summary judgment.

[00:00:45] Speaker 03:
That motion was filed by the accused infringer, and that has important consequences in terms of how you evaluate this.

[00:00:52] Speaker 02:
Do you agree that claim one of 989 is representative?

[00:00:56] Speaker 02:
I do.

[00:00:59] Speaker 03:
OK.

[00:00:59] Speaker 03:
Thank you.

[00:01:00] Speaker 03:
I started to say, Your Honor, that because we are

[00:01:03] Speaker 03:
we were the non-moving party below, the rules of – the federal rule that governs Summary Judgment Rule 56 says that all reasonable inferences must be resolved in favor of the non-moving – that's my claim.

[00:01:16] Speaker 03:
That is important – I think that's important.

[00:01:18] Speaker 03:
MR PALLADINO You can assume we're familiar with the trail.

[00:01:20] Speaker 03:
I didn't think you were.

[00:01:22] Speaker 03:
But anyway, the first thing I wanted to say is that the Claim 1, which calls for a rollover prevention apparatus,

[00:01:29] Speaker 03:
that allows a vehicle to be steered within a non-rollover steering range of motion of the said vehicle, but prevents the vehicle from being steered beyond a rollover threshold of the vehicle, says nothing about a driver at all.

[00:01:41] Speaker 03:
Okay.

[00:01:41] Speaker 03:
I have some problems I want to get cleared up, okay?

[00:01:44] Speaker 02:
On page 16 of the Blueberry, you quote Mr. Firmage, BMW of Murray's in-house council

[00:01:54] Speaker 02:
who happens to be a lawyer who owns a BMW dealership and styles himself as the in-house counsel as expressing no disagreement with your infringement claim and only uncertainty on whether the vehicle is self-steered.

[00:02:10] Speaker 02:
You failed to include that he also said in the same breath that he didn't feel qualified to opine within the context of this patent claim, and he couldn't say for sure, and a little bit later, just couldn't say for certain anything in particular about it.

[00:02:32] Speaker 02:
How is it you admitted those statements, and how is that omission not a mischaracterization of his testimony?

[00:02:38] Speaker 02:
He's not giving you anything.

[00:02:41] Speaker 03:
I disagree with you.

[00:02:42] Speaker 03:
I think he admitted an infringement, and then he tried to dilute his admission.

[00:02:47] Speaker 03:
And any dilution of the admission doesn't take away the admission.

[00:02:50] Speaker 03:
It only goes to the weight be given that admission under our rules of evidence, I submit to you.

[00:02:56] Speaker 02:
On page 41 of the blue brief, you assert that Mr. Fox, BMW's of Murray's declarant, admitted that the ADAP system self-steers.

[00:03:09] Speaker 02:
And you support this assertion with, to be kind, a heavily edited quotation from Mr. Fox's declaration.

[00:03:19] Speaker 02:
On page 17 of the Blue Brief, you quote Mr. Fox as stating, ADAP will assist – and this is with ellipses in it to get to this – ADAP will assist the driver, ellipses, by providing ellipses steering intervention

[00:03:40] Speaker 02:
You omit Mr. Fox's definition of steering intervention, which is a steering recommendation, and provide your own instead, self-steering.

[00:03:51] Speaker 02:
And based on that, you conclude that he admitted that the vehicles were self-steering.

[00:03:59] Speaker 02:
How is that not a misrepresentation?

[00:04:02] Speaker 03:
It's not because in the Fox declaration, Mr. Fox is saying, and I have the Fox declaration right here at appendix page 438, paragraph 4, he says, the ADAP option contains certain features that will assist the driver in operating the vehicle by providing a steering recommendation or steering intervention.

[00:04:26] Speaker 03:
So it can provide one or the other.

[00:04:28] Speaker 03:
The intervention happens when the ADAP system takes over the actual steering of the car.

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The recommendation is something different.

[00:04:36] Speaker 02:
That's why he states an alternative.

[00:04:38] Speaker 02:
Don't talk when I talk.

[00:04:38] Speaker 02:
I'm sorry.

[00:04:39] Speaker 02:
He also says, as I recall, that the driver of the BMW can overrule that by simply continuing their driving.

[00:04:48] Speaker 03:
Isn't that not correct?

[00:04:49] Speaker 03:
He says you can override.

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What he says is this.

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Once this ADAP system is engaged and is active,

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The car, there will be an intervention, and the car will steer itself.

[00:05:02] Speaker 03:
But the driver can override that intervention.

[00:05:04] Speaker 03:
The word override means turn off, disable, deactivate.

[00:05:09] Speaker 03:
That's what he says.

[00:05:10] Speaker 03:
Is there any recommendation?

[00:05:11] Speaker 03:
Well, if there's a steering recommendation, the vehicle isn't driving itself.

[00:05:14] Speaker 03:
But when there's an intervention, the vehicle is driving itself.

[00:05:18] Speaker 03:
And under those circumstances,

[00:05:20] Speaker 03:
The driver can deactivate the intervention by steering in such a way as to turn it off.

[00:05:26] Speaker 02:
Do you have anywhere in the record where Mr. Fox actually says that the accused vehicles are self-steering?

[00:05:33] Speaker 03:
He doesn't use those words, no.

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He uses the words intervention in certain circumstances.

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It goes on to explain that the driver will sense this as a torque or turn of the steering wheel.

[00:05:44] Speaker 03:
Usually we turn the wheel when we want to steer.

[00:05:46] Speaker 02:
Is there any record evidence where

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Someone actually says on BMW's side, says that the vehicles are self-steering.

[00:05:56] Speaker 03:
Only if Mr. Formage's admission to the correctness of the claim chart on claim one.

[00:06:02] Speaker 03:
And that chart does use the words on the chart.

[00:06:06] Speaker 02:
On page 18 of the blue brief, you quote Mr. Fox as saying that the driver of an accused vehicle will experience an ADAP, quote, steering intervention

[00:06:20] Speaker 02:
return of the steering wheel.

[00:06:22] Speaker 02:
You quote him as saying, the driver can allow this torque to be applied, ellipsis, dot, dot, dot.

[00:06:32] Speaker 02:
You leave off the second half of the sentence where Mr. Fox says the driver can, quote, override the steering intervention and steer the vehicle how she sees fit.

[00:06:45] Speaker 02:
What was your intent in leaving off that second part?

[00:06:50] Speaker 03:
Pretty simple.

[00:06:51] Speaker 03:
The claim doesn't say anything about how you turn on or turn off the apparatus.

[00:06:55] Speaker 03:
The claim is silent on that point.

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So that means, under most conventional claim interpretation, that any reasonable way, turn it on or off, could infringe.

[00:07:07] Speaker 03:
And all he's talking about in the portion of the sentence you just read, Your Honor, is how one of the ways to turn off

[00:07:14] Speaker 03:
the ADAP system once it's been activated.

[00:07:16] Speaker 03:
That's all.

[00:07:18] Speaker 02:
On page 45 of the blue brief, you say that the SRAM declaration provides a complete analysis of the intrinsic evidence and that the district court erred by failing to adopt an interpretation.

[00:07:33] Speaker 02:
Is there any record evidence that shows that Mr. SRAM is a person of skill?

[00:07:39] Speaker 03:
Well, he's a mechanical engineer who's worked in the auto industry for auto leave for about 15 years.

[00:07:43] Speaker 02:
Where's the definition of a person of ordinary skill in the art?

[00:07:47] Speaker 03:
In this brief?

[00:07:48] Speaker 03:
Nowhere.

[00:07:50] Speaker 03:
In the brief?

[00:07:51] Speaker 03:
In the record?

[00:07:52] Speaker 03:
No, sir, it's not in the record, period.

[00:07:54] Speaker 03:
We don't attempt to define a person of ordinary skill.

[00:07:57] Speaker 03:
But we do recite in his declaration what his qualifications are.

[00:08:02] Speaker 03:
He took out these patents himself.

[00:08:03] Speaker 03:
He's taken out many, many patents from others.

[00:08:05] Speaker 03:
He holds over 50 patents, most of them in the automotive field.

[00:08:10] Speaker 03:
I think that qualifies him as a person at least of ordinary skill.

[00:08:14] Speaker 03:
And when you consider that our opponents filed only one declaration,

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That's the one of Mr. Fox.

[00:08:21] Speaker 03:
That's the only record evidence they have to state their position.

[00:08:25] Speaker 02:
And then Fox- Why do you sue the local BMW dealer as opposed to the people who make these cars?

[00:08:31] Speaker 03:
Because of the heartland problem.

[00:08:34] Speaker 03:
It's as simple as that.

[00:08:36] Speaker 03:
Think of it this way.

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BMW is a company based in Germany.

[00:08:40] Speaker 03:
BMW of North America, a subsidiary of theirs, is nothing but a selling operation.

[00:08:44] Speaker 03:
And they're based in New Jersey.

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And this dealer is based in Habsburg.

[00:08:48] Speaker 02:
Don't they make those things in – at least some of them down in Tennessee or thereabouts?

[00:08:54] Speaker 03:
They have some sub-assembly plants in the United States.

[00:08:56] Speaker 03:
I don't know exactly how much sub-assembly is done.

[00:08:59] Speaker 03:
But the fact of the matter is the ADAP system was developed in Europe and put on the cars before they ever get to this country.

[00:09:08] Speaker 03:
So they aren't assembling ADAP in South Carolina or any of those places.

[00:09:12] Speaker 03:
But the heartland problem presents the problem that if you don't have brick and mortar

[00:09:18] Speaker 03:
in a given location, you're unlikely to be able to properly plead appropriate venue.

[00:09:24] Speaker 03:
But in this case, anyone who makes use of their cells, of course, under U.S.

[00:09:28] Speaker 03:
law is an infringer.

[00:09:30] Speaker 03:
And make no mistake about it, this defendant is the biggest BMW dealer in the entire state of Utah.

[00:09:36] Speaker 03:
This is no mom-and-pop operation.

[00:09:39] Speaker 03:
We're talking about mega-big.

[00:09:40] Speaker 01:
Okay.

[00:09:40] Speaker 01:
In your brief, you say that you asked for claim construction and the court erred by ignoring that request.

[00:09:48] Speaker 01:
And I couldn't find anything in the record.

[00:09:50] Speaker 01:
Indeed, what I saw in the record is an email that you sent at JA-2023, which says that you are not going to seek interpretation of any term at this time.

[00:10:03] Speaker 01:
So can you show me in the record where you sought claim construction?

[00:10:06] Speaker 03:
I think our appendix

[00:10:08] Speaker 03:
contains the briefing that was actually done on claim interpretation.

[00:10:12] Speaker 03:
Here's how it went.

[00:10:13] Speaker 03:
We had the usual exchange of the page.

[00:10:16] Speaker 03:
I can't give you the page off the top of my head.

[00:10:19] Speaker 03:
But I can.

[00:10:20] Speaker 03:
It's in the appendix.

[00:10:21] Speaker 01:
Well, but the question was, did you seek claim construction?

[00:10:24] Speaker 03:
I didn't seek construction of any term.

[00:10:26] Speaker 03:
No.

[00:10:27] Speaker 01:
OK.

[00:10:27] Speaker 01:
But didn't you tell us in your brief that you asked for claim construction and it was error for the district court to ignore it?

[00:10:34] Speaker 03:
I asked for it in the briefing on summary judgment.

[00:10:35] Speaker 03:
Yes, I did.

[00:10:38] Speaker 03:
and the judge didn't offer claim interpretation.

[00:10:39] Speaker 03:
Instead, he said in his order that the plain meaning of the claim to him requires no interpretation.

[00:10:46] Speaker 03:
Then he went on to say, the claim calls for a driver, and the word driver is nowhere in the claim.

[00:10:51] Speaker 03:
So first he says he didn't do claim interpretation, and then he adds a word to the claim that isn't in there and never was.

[00:10:57] Speaker 03:
In fact, there's no synonym for driver in the claim.

[00:11:00] Speaker 03:
So that's just a narrowing of the claim

[00:11:03] Speaker 03:
that follows no interpretation rule that I know of that is applied under Phillips, and the judge denies doing any interpretation.

[00:11:12] Speaker 03:
Okay.

[00:11:13] Speaker 03:
So then you see at the end of his order – I just want to – I'm running out of time, but at the end of his order on page 4 – this is Appendix Page 22 – he says, simply put, ADEP never actually prevents the vehicle from being steered beyond the rollover

[00:11:32] Speaker 03:
threshold at any point, including when ADAPT is in the engage mode.

[00:11:37] Speaker 03:
That's the end of that comment.

[00:11:39] Speaker 03:
He doesn't cite anything in the record because there's nothing in the record to support it.

[00:11:42] Speaker 03:
There's no evidence in the record to support that fact finally.

[00:11:47] Speaker 03:
And I'm supposed to get – my client is supposed to get the benefit of all reasonable doubt.

[00:11:52] Speaker 03:
If he doesn't cite to anything for it, the reasonable inference is that there is nothing that supports it.

[00:11:58] Speaker 03:
That's the reasonable inference, and that's what he didn't do.

[00:12:02] Speaker 03:
He did this over and over.

[00:12:03] Speaker 03:
On the Fox declaration, Fox is not said to be an expert, so he can't rely on hearsay.

[00:12:10] Speaker 03:
That's an ironclad rule in the Federal Rules of Evidence.

[00:12:14] Speaker 03:
But he attaches manual pages, does Mr. Fox, to his declaration, which are hearsay.

[00:12:19] Speaker 03:
And our opponents offer no argument for admitting that the use of those manual pages against us

[00:12:28] Speaker 02:
not even the business records exception, which requires the laying of a certain kind of foundation under 8036 A, B, or C. Yeah, my recollection is that he runs those records, that he runs the operation that controls those records.

[00:12:41] Speaker 02:
No, that's not so.

[00:12:42] Speaker 02:
I think we have gotten that out of reading it.

[00:12:44] Speaker 03:
No, it's not so.

[00:12:45] Speaker 03:
If you read his declaration, he's this guy that works in New Jersey who shuffles papers around and doesn't write anything.

[00:12:50] Speaker 03:
He never wrote these manuals.

[00:12:52] Speaker 03:
All he did was read them.

[00:12:54] Speaker 03:
I can read the newspaper today and claim to this court that I know what President Trump said to the president of Ukraine, but I don't know any more about it than what I read in the paper, any more than this individual knows about these manual pages.

[00:13:06] Speaker 03:
But whether he knows about them or not, they're still hearsay.

[00:13:09] Speaker 03:
He didn't write them, and they're not authenticated under 803.

[00:13:12] Speaker 03:
So they should never have been considered against us at all.

[00:13:22] Speaker 00:
Good afternoon, I guess.

[00:13:24] Speaker 00:
May it please the Court.

[00:13:27] Speaker 00:
As the Court knows from looking at the record, this was a no-evidence type summary judgment.

[00:13:33] Speaker 00:
It was a party who didn't have the burden

[00:13:36] Speaker 00:
out to that Fox declaration.

[00:13:39] Speaker 00:
Mr. Fox, by the way, you're right, he runs the division in B&W in North America, the section that tests these things and proves them out and establishes how they're going to work and how they're going to be configured for the U.S.

[00:13:53] Speaker 00:
markets.

[00:13:53] Speaker 00:
We know what he's talking about.

[00:13:55] Speaker 00:
He said that, look, these ADAP features that you're accusing never do anything other than make a recommendation to the driver, and the driver can accept them or reject them.

[00:14:09] Speaker 00:
And he said, they don't shut off.

[00:14:11] Speaker 00:
Drivers' actions don't shut these things off.

[00:14:15] Speaker 00:
They just simply override them.

[00:14:17] Speaker 00:
All three of the features are still on, but the driver still has to drive the car.

[00:14:22] Speaker 00:
This car doesn't have an autonomous driving mode.

[00:14:26] Speaker 00:
It's not a Tesla.

[00:14:27] Speaker 00:
All the time, the driver has to drive the car.

[00:14:30] Speaker 00:
And he pointed that out.

[00:14:32] Speaker 00:
And so what the patent owner's job was at that point was to come forward with evidence from which the jury could find for them.

[00:14:42] Speaker 00:
And unfortunately, all they put in was this tram declaration, which doesn't come close to meeting their demands.

[00:14:50] Speaker 00:
Why is that important?

[00:14:52] Speaker 00:
Oh, it's a figure of speech.

[00:14:55] Speaker 00:
I apologize.

[00:14:57] Speaker 00:
But he simply is short of fails.

[00:14:59] Speaker 00:
It's pretty fortunate for your client.

[00:15:00] Speaker 00:
Absolutely.

[00:15:01] Speaker 00:
You're right.

[00:15:04] Speaker 00:
He doesn't establish he had personal knowledge.

[00:15:07] Speaker 00:
He doesn't establish that he did any testing.

[00:15:09] Speaker 00:
He doesn't establish that there are algorithms in the car that will cause it to self-steer.

[00:15:15] Speaker 00:
There aren't.

[00:15:16] Speaker 00:
Or that there's algorithms in the car to enforce a rollover prevention.

[00:15:21] Speaker 00:
There aren't.

[00:15:22] Speaker 00:
All he says is, I think it infringes.

[00:15:25] Speaker 00:
And that's not enough to meet his burden on coming forward with admissible evidence from which the jury could find for the plaintiff.

[00:15:37] Speaker 00:
The other point, I'll touch on them quickly, but I think you know them.

[00:15:42] Speaker 00:
The general counsel was a nice young man.

[00:15:46] Speaker 00:
who had an undergraduate degree in accountancy, went to law school, and went to work on his dad's BMW dealership.

[00:15:55] Speaker 00:
He wasn't there as a technical expert.

[00:15:58] Speaker 00:
He wasn't there to opine about patent law principles.

[00:16:02] Speaker 00:
He was there to talk about how the company sales and the things that they did.

[00:16:08] Speaker 00:
It's nothing but a sort of a real overstatement to suggest that he in any way admitted infringement.

[00:16:15] Speaker 00:
He pretty much admitted that he didn't know what those claim charts were about.

[00:16:20] Speaker 02:
I guess we disagree on that.

[00:16:21] Speaker 02:
I think it's not an overstatement.

[00:16:23] Speaker 02:
It's a misstatement.

[00:16:26] Speaker 00:
Similarly, Mr. Fox, I think you pointed this out already.

[00:16:30] Speaker 00:
He did not say that self-steering is equated with

[00:16:37] Speaker 00:
There were no evidentiary errors.

[00:16:40] Speaker 00:
The judge is a very experienced district court judge who knows the rules of evidence.

[00:16:45] Speaker 00:
He's written a manual on the rules of evidence.

[00:16:49] Speaker 00:
But in any event, this was a known evidence summary judgment motion.

[00:16:53] Speaker 00:
Their job was to come forward with evidence, not to criticize the Fox declaration.

[00:17:00] Speaker 00:
That's the essence of it.

[00:17:01] Speaker 00:
We have to answer any questions, but that's the essence of my argument.

[00:17:06] Speaker 01:
We have your argument.

[00:17:07] Speaker 01:
Thank you.

[00:17:07] Speaker 00:
Thank you, Your Honor.

[00:17:12] Speaker 03:
A couple of things, Your Honor.

[00:17:15] Speaker 03:
My opponent here has mischaracterized or exaggerated Mr. Fox's importance.

[00:17:20] Speaker 03:
If you read his declaration, he says very plainly what he was.

[00:17:23] Speaker 03:
The judge below did say that he would overrule our personal knowledge objection.

[00:17:30] Speaker 03:
But that doesn't mean that just because it's admissible that it entitles the weight.

[00:17:34] Speaker 03:
Again, I say,

[00:17:35] Speaker 03:
Any reasonable doubt must be resolved in our favor, not in favor of our opponent.

[00:17:40] Speaker 03:
As for Mr. Fromage, yes, a nice young man, I agree.

[00:17:43] Speaker 03:
He is also a nice young man who signed the interrogatory responses from our opponent on infringement as the verifier.

[00:17:52] Speaker 03:
That means he made himself a fact witness under Rule 33B5.

[00:17:57] Speaker 03:
He ceased to be a lawyer the minute he signed as a fact witness.

[00:17:59] Speaker 03:
In fact, my opponent signed as to the objections, so it's clear that he signed only as verifier.

[00:18:06] Speaker 03:
That's why we deposed him on infringement.

[00:18:08] Speaker 03:
They chose to make him their representative on infringement, not us.

[00:18:13] Speaker 03:
All we did was take his deposition after they chose him.

[00:18:16] Speaker 03:
And now they want to walk away from his admissions.

[00:18:19] Speaker 03:
They want you to dilute them and give them no weight.

[00:18:22] Speaker 03:
And that's a reversible error.

[00:18:24] Speaker 02:
Assuming, of course, that you're correct in saying that they were admissions.

[00:18:27] Speaker 03:
Yes, sir.

[00:18:28] Speaker 03:
That's right.

[00:18:28] Speaker 03:
And also, I submit to you, look at Uniloc.

[00:18:32] Speaker 03:
Unilock was a case in this court, very similar, against Microsoft.

[00:18:36] Speaker 03:
The Microsoft representatives on infringement made admissions.

[00:18:39] Speaker 03:
The lawyers tried to argue that they weren't as potent as the acute – as the patentee said.

[00:18:46] Speaker 03:
And this court said, that's not our job on appeal from summary judgment.

[00:18:51] Speaker 03:
Our job is to resolve reasonable doubt in favor of the patentee.

[00:18:59] Speaker 02:
genuine issue of material facts of actual language.

[00:19:02] Speaker 02:
That's right.

[00:19:03] Speaker 03:
Any one of us can argue that when someone makes an admission, well, gee, he didn't know what he was talking about.

[00:19:08] Speaker 03:
But they picked him to sign for them on infringement.

[00:19:10] Speaker 03:
Let me reiterate, genuine.

[00:19:13] Speaker 03:
I hear you.

[00:19:15] Speaker 01:
OK, thank you for your time.

[00:19:17] Speaker 01:
Thank you.

[00:19:17] Speaker 01:
Thank both sides.

[00:19:17] Speaker 01:
And the case is submitted.

[00:19:18] Speaker 01:
That concludes our proceeding for this morning.

[00:19:21] Speaker ?:
All right.