[00:00:12] Speaker 03:
Our next case is Bombardier recreational products versus Arctic Cat, 2018, 2388, and 2424.

[00:00:22] Speaker 03:
Is it Mr. Connealy?

[00:00:26] Speaker 03:
When you're ready.

[00:00:50] Speaker 02:
Good morning, and may it please the court.

[00:00:51] Speaker 02:
Kevin Keneally for BRP.

[00:00:56] Speaker 02:
The district court committed several errors in denying BRP's JMOL motion after trial on the issues relating to arcticats in validity defenses.

[00:01:08] Speaker 02:
I'd like to start by highlighting one relating to claim eight in the 847 patent.

[00:01:14] Speaker 02:
Claim 8 is a dependent patent claim.

[00:01:17] Speaker 02:
And the court, unfortunately, at A22 and 23, in its post-trial rulings, simply glossed over it.

[00:01:26] Speaker 02:
It made no mention of it at all.

[00:01:28] Speaker 02:
And that's probably indicative of the failure of proof that Arcticab made a trial through its expert.

[00:01:35] Speaker 02:
If you look in the blue brief on pages 35 and 36, and here I need to point out an error of our own.

[00:01:42] Speaker 02:
I apologize to the panel.

[00:01:44] Speaker 02:
We have a reference at the top of page 36 to A3538.

[00:01:49] Speaker 02:
And that page is actually found in the appendix at 3471.

[00:01:55] Speaker 02:
But on the bottom of 35, carrying over to the top of 36, what you will plainly see is six lines of conclusory hindsight testimony from Mr. Karpik, Arctic Cats expert, about claims seven and eight.

[00:02:13] Speaker 02:
not looking at the claim language, not talking about motivation to combine.

[00:02:17] Speaker 02:
This is the kind of hindsight and conclusory testimony this court has repeatedly said was insufficient as a matter of law in cases like InTouch and other cases that we cite in our briefs.

[00:02:30] Speaker 02:
I just wanted to point that out on the 847 patent with respect to that failure as indicative of the other obviousness failures that the district court made, probably because of the lack of proof by Arctic Cat.

[00:02:43] Speaker 02:
There's simply nothing addressing any of the KSR factors with respect to claims seven and eight, the upper column limitation and the upper column forming the apex, including secondary considerations.

[00:02:56] Speaker 00:
It's all wrong.

[00:02:58] Speaker 00:
Shouldn't we all?

[00:02:58] Speaker 00:
We're going to be considering substantial evidence.

[00:03:01] Speaker 00:
That's the standard we should look at.

[00:03:02] Speaker 00:
And we have to presume that the jury made fact findings in favor of finding these claims invalid, right?

[00:03:10] Speaker 00:
So your argument really is failure of proof.

[00:03:13] Speaker 00:
Does it matter necessarily whether in the Jamal motion or the Jamal decision the district court talked about, you know, that all of the, I guess I'm wondering what is the import of errors in the district court's decision so long as there's

[00:03:31] Speaker 00:
If we find substantial evidence to support the jury's factual findings, isn't that sufficient?

[00:03:36] Speaker 00:
Don't we review judgments, not opinions, when we're looking at J-Mall, right?

[00:03:43] Speaker 02:
You do, Your Honor.

[00:03:45] Speaker 02:
But part of your premise is that there was substantial evidence in the record.

[00:03:48] Speaker 02:
And that's what I was trying to point out with my comments.

[00:03:50] Speaker 00:
I get it.

[00:03:50] Speaker 00:
I want to make sure you're focusing on that.

[00:03:52] Speaker 02:
No, that's right.

[00:03:53] Speaker 02:
So where there is simply conclusory

[00:03:58] Speaker 02:
expert testimony that doesn't address any of the KSR factors, including motivation, that is the basis on which we think the evidence was insufficient.

[00:04:06] Speaker 02:
And that's why the JMAAL should have been granted on obviousness as to those elements, those claims of the 847 patent.

[00:04:14] Speaker 02:
I would like to turn, in the interest of time, to the 669 patent, where there are also errors that the district court committed with respect to indefiniteness.

[00:04:23] Speaker 02:
And if there's time, we'll talk about anticipation as well.

[00:04:28] Speaker 02:
669 patent is not indefinite as a matter of law the sole claim term that was at issue was this Term seat position defined by a seat is that construction of that term seat position defined by the seat?

[00:04:41] Speaker 00:
The construction there that reads in figures 9a 9b and 10 that was your proposed construction is that correct we did yes?

[00:04:49] Speaker 02:
Actually, I should be I should be clear we propose that it be the the

[00:04:53] Speaker 02:
the definition, the specification of the standard writer.

[00:04:56] Speaker 02:
And then the court said, in fairness, the standard writer according to claim to figures 9A, 9B, and 10.

[00:05:05] Speaker 02:
But we certainly didn't oppose reading that in.

[00:05:07] Speaker 00:
And you haven't appealed that.

[00:05:10] Speaker 00:
No one's appealing the claim construction at all.

[00:05:13] Speaker 02:
No one's appealing the claim construction.

[00:05:14] Speaker 00:
What do we do where there's expert testimony disputing whether one of ordinary scale New York can look at figures 9A, 9B, and 10 and figure out what this is defining?

[00:05:27] Speaker 02:
You take this court's guidance from the biosig case after a remand from the Supreme Court and you look at the intrinsic record and you say, was there enough guidance in the intrinsic record

[00:05:37] Speaker 02:
for someone of skill in the art to look at figure 9a and determine what are the relevant dimensions in order to practice the patent.

[00:05:44] Speaker 00:
Isn't there a jury finding on that factual issue?

[00:05:49] Speaker 00:
On the question of whether looking at figures 9a, 9b, and 10, there was conflicting expert testimony on

[00:05:58] Speaker 00:
how opposed it would look at that, how a person of ordinary skill and the art would understand that.

[00:06:03] Speaker 00:
And there's a jury finding of indefiniteness.

[00:06:06] Speaker 02:
I would say this, Your Honor.

[00:06:07] Speaker 02:
We fought against, at the jury charge, we fought against having this jury instruction because we considered it to be an issue of law.

[00:06:16] Speaker 02:
And if there were underlying factual issues, the court could make those factual findings.

[00:06:21] Speaker 00:
Are there underlying factual issues here?

[00:06:23] Speaker 02:
No.

[00:06:23] Speaker 02:
Why not?

[00:06:24] Speaker 02:
Because there are no heirs that are relevant to the dimensions of finding

[00:06:27] Speaker 02:
the 50th percentile adult male.

[00:06:30] Speaker 01:
That's what I find interesting about your argument is that you accept because you advance the notion that your claim construction for this seat position limitation rests on lexicography.

[00:06:44] Speaker 01:
Your side, the inventor, was his own lexicographer in defining this particular claim term.

[00:06:51] Speaker 01:
And nobody is disputing that on appeal.

[00:06:55] Speaker 01:
the district court had to identify what was the definition provided in the specification.

[00:07:02] Speaker 01:
And it found reasonably, I think, the idea that it's whatever a standard rider would be and then all the elements that are described as being the ruler for what a standard rider is in the written description, including all the dimensions itemized in figures 9a, 9b, and 10.

[00:07:22] Speaker 01:
your argument in your briefing and today seems to be well

[00:07:28] Speaker 01:
Only some of those dimensions that are listed in figures 9a, 9b, and 10 really matter.

[00:07:35] Speaker 01:
And we should ignore the other dimensions that turn out to have lots of mathematical defects in them as not being relevant.

[00:07:44] Speaker 01:
And I just don't understand how you can try to define your lexicography by only half a loaf.

[00:07:54] Speaker 01:
I think you have to take the whole loaf.

[00:07:56] Speaker 01:
And if it turns out there's lots of mold in your loaf, that's really the problem and defect that you have to live with with the lexicographic definition provided in your written description.

[00:08:13] Speaker 02:
Taking no offense at the mold reference, Your Honor, let me try to unpack that.

[00:08:17] Speaker 02:
Because you have to look at the one of ordinary skill on a definiteness analysis has to look at the intrinsic record.

[00:08:23] Speaker 02:
And this court has to look at the intrinsic record and say, could someone of ordinary skill understand the claim's scope with reasonable certainty?

[00:08:31] Speaker 02:
So let me try to address that very point.

[00:08:35] Speaker 02:
At trial, my friends brought out a number of errors in the 90th percentile and the 10th percentile.

[00:08:40] Speaker 02:
Now, everyone agrees.

[00:08:41] Speaker 02:
Those can't be relevant, because the only thing claimed is a 50th percentile.

[00:08:45] Speaker 02:
They also tried to convince the jury that the standing height of an adult male

[00:08:49] Speaker 02:
was somehow relevant to determining the dimensions of the standard rider on a snowmobile.

[00:08:56] Speaker 02:
It may be relevant for, as they pointed out, your driver's license, but it certainly isn't relevant in the context of this patent.

[00:09:05] Speaker 02:
So let's talk about the intrinsic record.

[00:09:07] Speaker 02:
When you look at Figure 7 of the patent, you see a rider, a one-up rider, a single person on the ride.

[00:09:12] Speaker 02:
And that shows very common sense on someone seated on a straddle seat with their arms forward,

[00:09:19] Speaker 02:
and their feet NH well.

[00:09:22] Speaker 02:
But I think the best proof of what the intrinsic record shows are the relevant dimensions are the portion that Arcticat actually cites in its own brief.

[00:09:31] Speaker 02:
And I'm on page seven of their brief.

[00:09:34] Speaker 02:
It can also be found in the appendix at 6563, where the inventors told the Patent Office very clearly during prosecution what the relevant dimensions were.

[00:09:46] Speaker 02:
They said,

[00:09:47] Speaker 02:
contrasting their invention with the prior art.

[00:09:50] Speaker 02:
They said, well, don't look at that prior art.

[00:09:53] Speaker 02:
Here are the relevant dimensions.

[00:09:56] Speaker 00:
I'm looking at page seven in the red brief.

[00:09:58] Speaker 00:
Maybe you're about to read it.

[00:10:00] Speaker 00:
But what part are you relying on?

[00:10:02] Speaker 02:
At the very bottom, Your Honor.

[00:10:03] Speaker 02:
There's a site to APPX 6563.

[00:10:06] Speaker 00:
Where the standard rider has a torso length of 45.7 centimeters.

[00:10:11] Speaker 00:
I see.

[00:10:12] Speaker 00:
Yes.

[00:10:12] Speaker 00:
And the problem I'm having is simply the climb construction of this term.

[00:10:17] Speaker 00:
that was provided to the court and is not on appeal.

[00:10:23] Speaker 00:
And that's the construction of the term.

[00:10:25] Speaker 00:
And it's not that the standard writer has a torso length of 45.7 centimeters.

[00:10:30] Speaker 00:
It's instead something that refers to figures 9A, 9B, and 10, in which were the subject of expert testimony that the jury could have credited saying that there were errors and that one of ordinary scale in the art would have difficulty understanding

[00:10:46] Speaker 00:
how to follow those figures to figure out what the 50th percentile person is.

[00:10:51] Speaker 00:
But I understand that the term seat position defined by the seat seems like something probably every snowmobile could have.

[00:11:01] Speaker 00:
And it does.

[00:11:01] Speaker 02:
But the problem is the claim structure.

[00:11:04] Speaker 02:
Well, respectfully, it's Arcticat who's trying to imbue ambiguity where there is none.

[00:11:09] Speaker 02:
I was pointing the court to those five or six dimensions that the intrinsic record tells the person of ordinary skill and tells the court.

[00:11:18] Speaker 02:
These are the relevant dimensions.

[00:11:19] Speaker 02:
So our expert, Dr. Rausch, took those dimensions, looking at figure seven of that rider, and said, that rider, I'm going to use those dimensions.

[00:11:28] Speaker 02:
I'm not going to use standing height or some outstretched arm.

[00:11:32] Speaker 02:
And that's what she did.

[00:11:33] Speaker 02:
And that's what she proved infringement with.

[00:11:35] Speaker 02:
That's what we proved infringement with before the jury.

[00:11:38] Speaker 02:
That's how we proved the patent was not enabled.

[00:11:42] Speaker 02:
That's how Arctic Cat's own expert

[00:11:45] Speaker 02:
used the standard ATD, the dummy, which lived these same dimensions in order to try to prove invalidity.

[00:11:53] Speaker 02:
Everyone used the same method.

[00:11:55] Speaker 00:
Is there a standard dummy that's the 50th percentile North American man?

[00:11:59] Speaker 00:
There is.

[00:12:00] Speaker 01:
I thought there were some difficulties in making a proper dummy in this case.

[00:12:05] Speaker 02:
I think the questioning at that point, Your Honor, was whether it would be difficult with all the errors that don't relate to the standard position.

[00:12:15] Speaker 02:
It might be hard if you incorporated the standard dummy with the standing height error.

[00:12:21] Speaker 02:
I think that was the testimony.

[00:12:22] Speaker 02:
But no one, it was undisputed.

[00:12:24] Speaker 02:
Dr. Rausch, our expert at trial, was able to use the figures I just recited that are in the prosecution history, the torso, the two arm lengths, the leg lengths, and compare that to the dummy.

[00:12:37] Speaker 02:
And she did.

[00:12:38] Speaker 02:
And it's very close.

[00:12:40] Speaker 02:
And that's how she determined the seat position.

[00:12:43] Speaker 02:
And I'd also like to remember, this is an issue of law for the court on indefiniteness.

[00:12:48] Speaker 00:
I think there could be underlying issues of fact, just like in claim construction.

[00:12:52] Speaker 00:
We have been instructed that there could be underlying issues of fact.

[00:12:57] Speaker 00:
Similarly, in indefiniteness, there could be underlying issues of fact, as you're trying to determine what the scope of the claimant is and whether it even could be determined.

[00:13:08] Speaker 02:
That's true.

[00:13:08] Speaker 00:
But when a party tries to interject ambiguity where there is none, that's not relevant to- Do they have an expert who's- OK, your point is that the expert testimony is irrelevant.

[00:13:20] Speaker 02:
Yes.

[00:13:21] Speaker 02:
Their expert attacks on the standard position, or excuse me, on the seat position defined by the seat are irrelevant.

[00:13:29] Speaker 02:
And I'll raise another issue.

[00:13:30] Speaker 02:
Claim 88 is different in kind from some of the other claims that were in the case that are in the patent in the 669.

[00:13:37] Speaker 02:
And if I could, just refer the court in the appendix at 401.

[00:13:44] Speaker 02:
This is column 21.

[00:13:48] Speaker 02:
Claim 80, another independent claim, requires that that invention have a seat position disposed a certain distance from another component of the snowmobile, the forward-most drive track axle.

[00:14:00] Speaker 02:
Claim 97 is another claim of the patent, not asserted here, where the seat position is disposed some distance relative to something else.

[00:14:08] Speaker 02:
For those kinds of claims, I could understand if a party was going to try to make some definiteness argument.

[00:14:16] Speaker 02:
But the seat position defined by the seat in claim 88 is just that.

[00:14:21] Speaker 02:
It doesn't require some sort of further scrutiny.

[00:14:25] Speaker 02:
The construction that was given to the jury was for its aid to understand what it meant.

[00:14:29] Speaker 02:
But the claim, 88, it calls out a straddle-type seat, a standard component of the conventional snowmobile, a standard component of our claimed snowmobiles, a standard component of the infringing snowmobiles.

[00:14:43] Speaker 03:
Counsel, you're well into your rebuttal time.

[00:14:46] Speaker 03:
We'll give you two minutes for rebuttal.

[00:14:48] Speaker 03:
But before you sit down into your seat position,

[00:14:55] Speaker 03:
There's been a motion by Appellee to supplement the record with three pages of testimony.

[00:15:01] Speaker 03:
I assume you don't object.

[00:15:04] Speaker 02:
Well, as the party who first noticed that it was missing, I have no objection, Your Honor.

[00:15:09] Speaker 03:
Thank you very much.

[00:15:11] Speaker 03:
Mr. McCloud.

[00:15:16] Speaker 04:
Good morning, Your Honors.

[00:15:17] Speaker 04:
Neil McCloud, representing Appellee Articat.

[00:15:21] Speaker 04:
May it please the court.

[00:15:24] Speaker 04:
From counsel's comments, it sounds like they're slowly coming to realize that it is the claims as construed that matter for purposes of indefiniteness.

[00:15:34] Speaker 04:
You don't construe claims and then push the construction aside and go back to analyzing the unconstrued claim.

[00:15:42] Speaker 04:
It's the construction that matters.

[00:15:44] Speaker 04:
It's what the claims mean that you look at for indefiniteness.

[00:15:49] Speaker 04:
Anything else would be illogical and, I think, inconsistent because, as the court pointed out,

[00:15:54] Speaker 04:
The construction of the seat position defined by the seat is actually what they proposed and the court adopted.

[00:16:00] Speaker 00:
How do you respond to the point that your client's expert testimony is irrelevant because it talks about measurements that have about the 90th percentile male or the 10th percentile male or positions that, you know, total height, not something that matters with respect to

[00:16:19] Speaker 00:
sitting on the snowmobile.

[00:16:21] Speaker 04:
In a couple ways, Your Honor.

[00:16:22] Speaker 04:
First, he did analyze the 50th percentile dimensions, which are the middle dimensions on those figures.

[00:16:30] Speaker 04:
He expressly said in his testimony, I'll ignore the 95th percentile errors, although there are some.

[00:16:39] Speaker 04:
With respect to what dimensions are relevant, first of all, there is no carve out in the construction for the following dimensions.

[00:16:47] Speaker 04:
in figures 9A and B. There was no proposal like that from BRP that only these dimensions matter.

[00:16:54] Speaker 04:
But more to the point, our expert, Warner, did analyze those dimensions.

[00:17:01] Speaker 04:
The point that Mr. Warner was making with respect to the overall height of the body build in figures 9 and 10 and the overall arm dimension is that they don't add up.

[00:17:15] Speaker 04:
The overall dimension does not match all these sub-dimensions.

[00:17:19] Speaker 04:
You don't know where the errors are.

[00:17:21] Speaker 04:
You can't account for that discrepancy.

[00:17:25] Speaker 04:
It makes it more than just an error.

[00:17:26] Speaker 04:
It makes that ruler.

[00:17:28] Speaker 04:
And this is the claimed ruler.

[00:17:30] Speaker 04:
There will be no mistake about that.

[00:17:31] Speaker 04:
The only reason we're talking about these figures is because that is the ruler that all measurements are made with.

[00:17:37] Speaker 04:
You don't know what the dimensions of that ruler are because of the discrepancy between the overall dimension and all the sub-dimensions.

[00:17:45] Speaker 04:
that BRP says are relevant.

[00:17:48] Speaker 04:
An analogy I thought of is, and I think it's a good one.

[00:17:52] Speaker 04:
If somebody hands you a ruler and it's got 14 on the left side, 14 units, whatever, inches, centimeters, and on the right side it's got 23, for example, inches or centimeters, whatever dimensions.

[00:18:05] Speaker 04:
And they say, go measure something.

[00:18:07] Speaker 04:
Go measure the court's bench and report back with reasonable certainty

[00:18:14] Speaker 04:
as to what the height is.

[00:18:16] Speaker 04:
You can't do it with that ruler.

[00:18:19] Speaker 04:
And that's the ruler I'm describing.

[00:18:22] Speaker 04:
You can't do it.

[00:18:22] Speaker 04:
You can flip a coin, which is what I think their SBIRC did, and said, well, I'm going to choose these dimensions and ignore the fact that they're inconsistent with the overall height dimension.

[00:18:33] Speaker 04:
But if you're being honest, you have to report back, I cannot do this measurement.

[00:18:39] Speaker 04:
with the tool I've been giving.

[00:18:40] Speaker 04:
It's broken.

[00:18:41] Speaker 04:
It doesn't work.

[00:18:42] Speaker 04:
You can't do it.

[00:18:42] Speaker 04:
You can't come to any reasonable certainty on what the height of that bench is with this flawed ruler.

[00:18:53] Speaker 04:
So that was the point of his testimony.

[00:18:55] Speaker 04:
And he did address the relevant dimensions, what they, what BRP calls the relevant dimensions, in terms of the overall height.

[00:19:02] Speaker 04:
And his testimony really shows that you can't do anything with this ruler, because you have no idea where the discrepancies lie.

[00:19:13] Speaker 04:
There was also.

[00:19:16] Speaker 00:
In analyzing the validity of the claims in view of the prior art, you had an expert who was able to present evidence based on, I think, just standard measurements of a North American male of 50th percentile.

[00:19:33] Speaker 00:
Maybe there was a dummy that had those dimensions.

[00:19:38] Speaker 00:
Why is it that we shouldn't ignore the errors in the figures

[00:19:42] Speaker 04:
In this case since one of ordinary scale in the yard would know that there's a standard Dummy that has those dimensions first of all that the dummy that they use does not have the same dimensions as the one in As the dimensions of the patent it couldn't those dimensions are flawed you can't you can't determine what they are So the dummy is I think our testimony was from Warner It's not a surrogate and we've shown that in our briefs.

[00:20:09] Speaker 04:
It's not a surrogate for what is claimed in the patent

[00:20:13] Speaker 04:
The dummy photos you saw were by our expert were an attempt to replicate Measurements that BRP was doing for infringement And he was only using the dummy so he couldn't be accused later of doing his own measurements He was trying to replicate what they were doing for purposes infringement, but our position is you can't do you can't do any measurements with this

[00:20:37] Speaker 04:
body build in figures 9A and 9B and 10 at all.

[00:20:42] Speaker 04:
You can't come to any conclusions.

[00:20:44] Speaker 04:
And the ATD doesn't help you.

[00:20:49] Speaker 04:
ATD means the dummy that was used.

[00:20:54] Speaker 04:
Council brought up claim 80, which was previously asserted in the case.

[00:21:00] Speaker 04:
And that's actually when the party's experts were using

[00:21:04] Speaker 04:
the crash test to do measurements.

[00:21:08] Speaker 04:
Claim 80 is actually instructive here.

[00:21:10] Speaker 04:
Claim 80 also recites the term seat position defined by the seat.

[00:21:16] Speaker 04:
Claim 80 does provide an actual measurement using that seat position defined by the seat, which is a point on the seat.

[00:21:23] Speaker 04:
There should be no mistake about that.

[00:21:25] Speaker 04:
It is a point.

[00:21:26] Speaker 04:
Claim 80 says the seat position defined by the seat must be less than 590 millimeters

[00:21:33] Speaker 04:
from the forward axle.

[00:21:35] Speaker 04:
So it's a precise measurement.

[00:21:36] Speaker 04:
591 would escape infringement.

[00:21:39] Speaker 04:
589 millimeters would be within that limitation.

[00:21:43] Speaker 04:
The point I'm trying to make is seat position is in both of those claims.

[00:21:50] Speaker 04:
It means the same thing in both those claims.

[00:21:54] Speaker 04:
It's a rare case where a claim term means something different in one claim than it does in another.

[00:22:00] Speaker 04:
Claim 80, I think, emphasizes, or you get a greater sense or a quicker sense of just how indefinite these claims are because of seat position defined by the seat.

[00:22:11] Speaker 04:
You can't take any measurements down to the 590 millimeter dimension using this flawed ruler, where you don't even know which dimensions to use.

[00:22:30] Speaker 04:
I'd like to address a few things on the 847 patent.

[00:22:38] Speaker 04:
I think the court pointed out, we really are just, you know, BRP's appeal really is just about contesting the evidence, saying there's not enough substantial evidence.

[00:22:49] Speaker 04:
And we're up here on appeal with a jury verdict that there was

[00:22:53] Speaker 04:
You have to view the facts in light most favorable to ARTICAT.

[00:22:57] Speaker 04:
And they did find claims 1, 6, 7, and 8 of the 847 patent invalid.

[00:23:06] Speaker 00:
Do you agree with opposing counsel's assessment of the only evidence that was provided on claim 8, ensuring its invalidity?

[00:23:17] Speaker 04:
No, I don't.

[00:23:20] Speaker 04:
The upper column that was referred to in claim eight is prior art.

[00:23:24] Speaker 04:
It's admitted prior art in their patent.

[00:23:26] Speaker 04:
That's evidence.

[00:23:29] Speaker 04:
Our expert did testify as to a motivation to combine this simple prior art structure, the upper column, with snowmobiles.

[00:23:39] Speaker 04:
And that's at appendix 3475.

[00:23:42] Speaker 04:
So there is a motivation to combine in the record.

[00:23:47] Speaker 04:
They seem to be hung up on.

[00:23:49] Speaker 04:
Or seem to be suggesting there's some requirement that an expert sit and recite every single claim every time he's going through it Almost like a magic words requirement That experts have to go through and there isn't one and the reason probably for that is it's clear that that would be a rather onerous thing for Experts to do is to memorize each claim and recite it every time you move on to the next claim I will point out that

[00:24:21] Speaker 04:
when our expert Karpik was testifying regarding these claims, he was using, as experts often do in patent cases, a claim chart up on the screen where he was checking off each box for each claim as he went through it.

[00:24:36] Speaker 04:
So the claim term for claim 8 and for claim 7 and for claim 6 were all on the screen for the jury when he was marching through his analysis.

[00:24:49] Speaker 03:
You've withdrawn your cross-appeal.

[00:24:54] Speaker 04:
We have.

[00:24:56] Speaker 03:
Are you still arguing non-infringement?

[00:24:58] Speaker 04:
We are.

[00:24:58] Speaker 04:
I don't think that dropping the cross-appeal affects that.

[00:25:03] Speaker 00:
Right.

[00:25:03] Speaker 00:
Why not?

[00:25:03] Speaker 00:
Why not under radio steel where the judgment in this case, if you look at the district court's judgment, it has one paragraph related to infringement and a different paragraph related to validity.

[00:25:15] Speaker 00:
So why wouldn't

[00:25:17] Speaker 00:
Your argument, if you were successful, enlarged the scope of the judgment, thus requiring you to file a cross-appeal.

[00:25:27] Speaker 04:
Mike, I don't know that specific case.

[00:25:29] Speaker 04:
I'm sorry, I don't.

[00:25:30] Speaker 04:
But all the other cases I've read on this and the court's precedent are that infringement is, I guess you could call it a subset of invalidity.

[00:25:40] Speaker 04:
You can't infringe an invalid claim.

[00:25:42] Speaker 04:
So with the defense of non-infringement, you are not enlarging your,

[00:25:48] Speaker 04:
your finding of invalidity.

[00:25:50] Speaker 03:
In other words, you were a winner on invalidity.

[00:25:55] Speaker 04:
Essentially, yeah, the prevailing party on invalidity.

[00:26:03] Speaker 04:
Just a few comments on the anticipation of Claim 88 of

[00:26:09] Speaker 04:
The 669 patent under Hattin and Foxtrack.

[00:26:14] Speaker 04:
I think in BRP's brief, they're confusing a few things on the Hattin.

[00:26:18] Speaker 04:
First of all, they concede that the Hattin snowmobile anticipates claim 88 of the 669 patent.

[00:26:29] Speaker 04:
They don't dispute any of the elements.

[00:26:30] Speaker 04:
They just dispute.

[00:26:31] Speaker 04:
They don't even dispute it's public.

[00:26:33] Speaker 04:
They just say it wasn't public enough.

[00:26:36] Speaker 04:
It was public.

[00:26:36] Speaker 04:
It was ridden, rode by Roger Scum on a public highway in Minnesota.

[00:26:44] Speaker 04:
It's fully corroborated.

[00:26:45] Speaker 04:
What BRP, I think, misses in their brief is that the hit teen snowmobile itself, which we had at trial.

[00:26:52] Speaker 04:
And the jury saw it, and all the witnesses identified it.

[00:26:57] Speaker 04:
Hattin Snowmobile itself is corroborating.

[00:27:00] Speaker 04:
You can corroborate with a physical exhibit as much as you can with a document.

[00:27:06] Speaker 04:
So the Hattin Snowmobile corroborates Roger Skimes.

[00:27:12] Speaker 01:
I guess your public use argument makes me wonder if we start to adopt it, we start going down a slippery slope.

[00:27:21] Speaker 01:
We have witness A saying, oh, yeah, I remember seeing this snowmobile 35 years ago.

[00:27:26] Speaker 01:
I rode on it.

[00:27:28] Speaker 01:
And you have witness B saying, oh yeah, I remember seeing that snowmobile 20 years ago.

[00:27:33] Speaker 01:
And then that's it.

[00:27:36] Speaker 01:
If that was the evidence of so-called corroboration, would that be enough?

[00:27:45] Speaker 01:
Two witnesses saying they saw it 20 years ago?

[00:27:50] Speaker 04:
Somewhere in there.

[00:27:51] Speaker 04:
It's not enough.

[00:27:52] Speaker 04:
I would say that it is in this case obviously you have two witnesses identifying the exact same snowmobile It's a distinctive snowmobile.

[00:28:00] Speaker 04:
They're not Saying you know I saw a toyota on the seat that you may have seen ten years ago It's a distinctive snowmobile and we have more than two we have also

[00:28:13] Speaker 04:
Joel Hollstrom, who said he saw a photograph of that very distinctive snowmobile in 1987.

[00:28:19] Speaker 04:
And we have the later testimony of witnesses who heard about Roger Skye's ride on the Hittiteen snowmobile.

[00:28:28] Speaker 04:
And again, he pointed out the exact snowmobile.

[00:28:32] Speaker 04:
And it's a distinctive one that he wrote on.

[00:28:35] Speaker 03:
You think it's a matter of the credibility of the witnesses?

[00:28:39] Speaker 04:
I'm sure that's part of it.

[00:28:42] Speaker 04:
probably a major part of it, and that's something for the jury to really examine credibility and things like that.

[00:28:51] Speaker 04:
I only have a minute and a half left.

[00:28:53] Speaker 04:
I just wanted a few more words about the obviousness of the dependent claims in the 669 patent, those claims 92 to 95.

[00:29:04] Speaker 04:
Those add what I would call minor limitations to

[00:29:10] Speaker 04:
a claim has already been found to be anticipated, they add those ranges for the steering position.

[00:29:17] Speaker 04:
We're asking the court to reverse the district court on this, where he found those are not obvious.

[00:29:25] Speaker 04:
So why are we special?

[00:29:27] Speaker 04:
Why can we get up here and say reversal's a good idea for that, whereas BRP can't for any of theirs?

[00:29:35] Speaker 04:
I think the court below on this issue

[00:29:38] Speaker 04:
spent or given an ordinate amount of weight to the fact that when you combine two references, you often have to make modifications.

[00:29:50] Speaker 04:
You seem to be hung up on that, that if you combine the Hattin, for example, or the Fockjack, for example, with- Can I interrupt you just for a minute?

[00:30:01] Speaker 00:
This issue that you're talking about, there's a jury verdict on this issue, right?

[00:30:06] Speaker 00:
Or am I confusing the issues?

[00:30:08] Speaker 04:
There is.

[00:30:09] Speaker 04:
There's no finding that claims 92 to 95 are obvious.

[00:30:14] Speaker 00:
So the question is whether substantial evidence supports the jury's verdict, right?

[00:30:19] Speaker 04:
Yes.

[00:30:20] Speaker 04:
I'm saying there isn't to support that.

[00:30:22] Speaker 00:
So you're going to explain why there's no evidence?

[00:30:25] Speaker 04:
I'm going to explain why there isn't substantial evidence.

[00:30:32] Speaker 04:
The court gave an inordinate amount.

[00:30:34] Speaker 00:
The jury gave an inordinate amount.

[00:30:36] Speaker 04:
The jury, too.

[00:30:39] Speaker 04:
to the fact that you have to modify the prior art sometimes.

[00:30:43] Speaker 04:
If that was the standard, you can never combine two references, because there's always going to be modifications when you combine two things.

[00:30:49] Speaker 04:
The key part of this, though, is that BRP's own expert witness, when asked about these claims and the claim ranges, he was asked whether a person of skill of art in the 1990s, i.e.

[00:31:05] Speaker 04:
back in the prior art days,

[00:31:07] Speaker 04:
without knowledge of the 669 patent, the question expressly excluded the 669 patent, would be motivated to use the 40 to 90 millimeter ranges.

[00:31:19] Speaker 04:
And his answer was, if that range complemented his or her design, yes.

[00:31:25] Speaker 04:
So their own expert is saying these ranges are

[00:31:29] Speaker 04:
Nothing, but a design choice well within the skill of one in the art.

[00:31:34] Speaker 03:
Thank you.

[00:31:34] Speaker 03:
I think that testimony is Thank you council.

[00:31:37] Speaker 02:
Mr.. Keneally has two minutes for bottle if you need it Thank you your honor with the point that with regard to the claim construction point the council was making the court construed the claim seat position defined by the seat is

[00:31:58] Speaker 02:
as referring to the body build of that 50th percentile male, and seated in a natural operating position.

[00:32:05] Speaker 02:
Not standing, not walking, not stretching its arms out.

[00:32:08] Speaker 02:
Seated in a natural operating position.

[00:32:10] Speaker 02:
And we submit that that is the natural operating position shown in all the figures, but most especially, Figure 7 of the 669.

[00:32:19] Speaker 02:
And we would refer the court to compare

[00:32:23] Speaker 02:
We were talking about the red brief at 7 with that citation to the intrinsic evidence from the file history.

[00:32:29] Speaker 02:
That's at appendix 6563.

[00:32:31] Speaker 02:
Those figures, when you compare those figures to the 669, figure 9A, with appendix 387, they're exactly the same.

[00:32:43] Speaker 02:
And they're exactly the same figures that Dr. Rausch used to prove or to show the infringement.

[00:32:48] Speaker 02:
So we think that that.

[00:32:52] Speaker 02:
shows that, and I also point out that the jury found enablement of the patent, that you can practice the patent.

[00:32:58] Speaker 02:
And so the other thing I want to point out is that counsel said something about that there has to be an exact point on the straddle type seat.

[00:33:07] Speaker 02:
Again, let's look at the claim construction.

[00:33:10] Speaker 02:
A portion of the straddle type seat, understanding that when someone sits down, they're not going to contact the seat only at one point.

[00:33:19] Speaker 02:
The issue here about indefiniteness is reasonable certainty.

[00:33:23] Speaker 02:
Let me be brief on anticipation.

[00:33:26] Speaker 02:
We don't agree that that was a public disclosure when Mr. Hattin took Arctic Cat's vice president out for a ride.

[00:33:33] Speaker 02:
We don't even think it was corroborated.

[00:33:35] Speaker 02:
In fact, if you were going to accept Arctic Cat's evidence presented to the jury at this case as sufficient corroboration, a single interested witness, you would be undoing Finnegan to start with.

[00:33:49] Speaker 02:
You would also be undoing basically a century of corroboration requirements

[00:33:53] Speaker 02:
by the Supreme Court and this court, because to Judge Laurie, to your point, credibility is not the issue.

[00:34:01] Speaker 02:
We don't defer and say, well, one person's telling one story, as long as they're credible, we'll let it get by.

[00:34:08] Speaker 02:
That is not the corroboration requirement.

[00:34:10] Speaker 02:
They have the duty by clear and convincing evidence to show that this hit-teen was ever public.

[00:34:16] Speaker 02:
And I would ask the court to compare the facts of this case to the Moleculon research case, the Rubik's Cube case, where there was a lot more disclosure by that inventor than there was by Mr. Hattin.

[00:34:27] Speaker 02:
Briefly on obviousness, as Judge Stoll you pointed out, the jury didn't buy their story on obviousness as to those claims 2 through 95.

[00:34:38] Speaker 02:
So there was substantial evidence, and the district court cited to it in its JMOL.

[00:34:42] Speaker 02:
But the other point we would make is we believe that the anticipation

[00:34:46] Speaker 02:
result that the court reached was wrong below.

[00:34:49] Speaker 02:
Hattin and Foxtrack don't anticipate, neither one anticipates.

[00:34:54] Speaker 02:
And so without anticipating references, they can never get to an obviousness anyway, because they're missing necessary elements of the patented invention.

[00:35:02] Speaker 03:
Thank you, counsel.

[00:35:04] Speaker 03:
Your time has been consumed.

[00:35:06] Speaker 03:
Thank you, Your Honor.

[00:35:07] Speaker 03:
We'll take the case under advisement.