[00:00:08] Speaker 00:
Okay, the next argued case is number 18-21-17, Echo Jet Incorporated against Lorico.

[00:00:16] Speaker 00:
Mr. Schaeffer.

[00:00:17] Speaker 02:
May it please the court.

[00:00:18] Speaker 02:
John Schaeffer representing Echo Jet, the appellate in this case.

[00:00:21] Speaker 02:
I'm reserving five minutes for rebuttal.

[00:00:24] Speaker 02:
In this case, Michael Johnson, a Ph.D., a renowned hydrologist, a person of ordinary skill in the relevant art, and our expert in this case.

[00:00:33] Speaker 01:
If you look at these caps, which you have supplied to us, if I understand correctly, I have one of the caps here, that this feature, which is labeled CR,

[00:00:46] Speaker 01:
on the cap, that's what you contend constitutes the wall?

[00:00:51] Speaker 02:
Yeah, the space between the inlet holes and the outlet holes.

[00:00:55] Speaker 02:
You'll see there's a little ridge there.

[00:00:57] Speaker 02:
And the way we know that's a structure, Your Honor.

[00:01:00] Speaker 01:
But you agree that it's what's labeled CR.

[00:01:03] Speaker 02:
I don't have the CR reference in front of me.

[00:01:08] Speaker 01:
It's labeled on the cap.

[00:01:09] Speaker 02:
It was not labeled on the cap at trial, so that may be something that's put on there.

[00:01:12] Speaker 01:
Well, it's etched into the cap.

[00:01:15] Speaker 02:
I honestly don't.

[00:01:18] Speaker 02:
It is the space in between.

[00:01:19] Speaker 02:
There's a little ridge there.

[00:01:21] Speaker 02:
If there's a CR there, then that would be the general area where it is.

[00:01:25] Speaker 02:
But you'll see there's an indentation on the cap going around the edges.

[00:01:30] Speaker 02:
I think an issue by the district court below was whether or not that constituted a structure.

[00:01:37] Speaker 02:
And the way we know it's a structure, Your Honor, is that a police chief technology officer removed that structure on the advice of counsel.

[00:01:47] Speaker 02:
So it's not just a flat surface or pressure alone that's causing it.

[00:01:52] Speaker 01:
Why couldn't the district court properly conclude that it's just a flat surface and not a wall?

[00:01:57] Speaker 02:
The district court couldn't properly conclude that because you had a person of ordinary skill in the art saying that it was.

[00:02:05] Speaker 01:
Well, but he can look at the device itself, right?

[00:02:08] Speaker 02:
And we have no evidence to the contrary, and under the center cut case... Why isn't the device itself evidence?

[00:02:16] Speaker 02:
The device itself is evidence, but it comes down to an issue that I think is fundamental to patent law, which is under what standard do we judge infringement?

[00:02:26] Speaker 02:
Is it from the perspective of someone of ordinary skill in the art?

[00:02:31] Speaker 02:
How would they view this element on the product?

[00:02:34] Speaker 02:
Or is it an ordinary tri-refact?

[00:02:37] Speaker 02:
And if you look at every other element that exists under patent law, it's always decided on the standard of a person of ordinary skill in the art.

[00:02:46] Speaker 02:
Obviousness, the doctrine of equivalence, here

[00:02:49] Speaker 02:
I'm not finding any case law in it, but you're really confronted that issue.

[00:02:54] Speaker 02:
Because you have a person of ordinary skill in the art who's saying, my review of this product, knowing this industry, and understanding how hydraulics works, this is a wall.

[00:03:05] Speaker 02:
And any other person of ordinary skill in the art would recognize this as a wall.

[00:03:10] Speaker 02:
Halley's expert was stricken.

[00:03:12] Speaker 02:
There is no evidence in the record from which the judge could reach that conclusion other than the judge's own review of the product.

[00:03:21] Speaker 02:
This is exactly what happened in the Seneca case.

[00:03:24] Speaker 02:
The Seneca case.

[00:03:25] Speaker 01:
Yeah, but Seneca says you have to have expert testimony unless it's simple technology.

[00:03:32] Speaker 02:
And I'm not arguing here that you need expert technology.

[00:03:37] Speaker 02:
I mean, that you need complicated technology or simple technology.

[00:03:41] Speaker 02:
My point is, did we have a preponderance of the evidence?

[00:03:47] Speaker 02:
When we offer the testimony of a person of ordinary skill in the art who says it practices the element, the judge didn't say in his decision, I disagree with him.

[00:03:59] Speaker 02:
What the judge says in his decision is we didn't have a preponderance of the evidence.

[00:04:05] Speaker 02:
Well, by definition,

[00:04:07] Speaker 02:
We met the basic threshold of that standard since no other evidence was admitted in the record.

[00:04:14] Speaker 02:
Except for the cap itself.

[00:04:16] Speaker 02:
Except for the cap itself, but no one on appellee's side said there was no wall there.

[00:04:21] Speaker 02:
There's just a complete absence of evidence.

[00:04:24] Speaker 02:
So what you have is a judge

[00:04:28] Speaker 02:
disagreeing with a person of ordinary skill in the art.

[00:04:32] Speaker 02:
And I would agree with Your Honor that if we are going to judge infringement by how the trier of fact looks at it, that is fine.

[00:04:42] Speaker 02:
We can have that standard.

[00:04:43] Speaker 02:
And that standard should be clearly articulate, which would be a different standard that exists in all other elements of patent law.

[00:04:50] Speaker 02:
But when you have a person of ordinary skill in the art offering that testimony,

[00:04:57] Speaker 02:
that it practiced it.

[00:04:58] Speaker 02:
And it's not one of those instances, because there are a number of cases where courts disagree with experts, because the expert's opinion is not founded upon evidence.

[00:05:07] Speaker 02:
The expert very quickly just says, oh, it practices this element.

[00:05:10] Speaker 02:
It practices this element.

[00:05:12] Speaker 02:
Our expert, Dr. Johnson, specifically explained how and why his decision-making process came from.

[00:05:19] Speaker 02:
He examined the caps.

[00:05:20] Speaker 02:
He examined the CAD drawings.

[00:05:23] Speaker 02:
And from an understanding how these work, he said that is going to perform the function of a wall as the term was construed by the court, a structure that separates volumes.

[00:05:39] Speaker 02:
Now there's a whole variety of ways we could look at a wall, and you could look at this cap saying, that's no wall I've ever heard of before.

[00:05:46] Speaker 02:
But based on this court's construction,

[00:05:50] Speaker 02:
It is absolutely clear that by reducing that space in that area, which Appellee's own expert or own chief technology officer admitted he did, it caused that pressure to separate the volumes to allow it to work.

[00:06:09] Speaker 02:
Mr. Schaefer, let me ask you though.

[00:06:11] Speaker 04:
I'm looking, excuse me, at the bottom of appendix 10.

[00:06:15] Speaker 04:
And this is the district court opinion, paragraph 16.

[00:06:18] Speaker 04:
The judge says, what Dr. Johnson actually identified as the wall structure was simply the general surface of the cap itself between the inlet holes and outlet.

[00:06:29] Speaker 04:
And then he continues, the court's construction of wall requires a structure, not simply a boundary defining a space.

[00:06:36] Speaker 04:
Now, he's applying the claim construction.

[00:06:40] Speaker 04:
He's the finder of fact.

[00:06:44] Speaker 04:
would disagree with that.

[00:06:46] Speaker 04:
How is that finding

[00:06:49] Speaker 04:
clearly erroneous.

[00:06:50] Speaker 04:
He focuses right on the structure, which is what the fact finder has to do.

[00:06:55] Speaker 02:
Because what he's done is he's changed his claim construction.

[00:06:58] Speaker 02:
He's now said that in order for there to be a wall, there needs to be a structure over and above or on top of the cap.

[00:07:07] Speaker 02:
And if you look at claim 20, it dresses that perfectly.

[00:07:10] Speaker 02:
Because claim 20 defines the wall as a wall being formed by the inner surface of the cap.

[00:07:19] Speaker 02:
So taking that subsequent clause by the inner surface of the cap completely undercuts the court's conclusion there because he's adding an additional structure.

[00:07:29] Speaker 02:
If the court's claim construction previously required such a structural limitation or an additional element other than a structure that separates volume, you would be absolutely right.

[00:07:41] Speaker 02:
But as Your Honor knows, the court cannot change its construction

[00:07:47] Speaker 02:
after evidence is closed in order to reach a finding.

[00:07:50] Speaker 02:
And that effectively is what that ruling's doing.

[00:07:54] Speaker 01:
Under Hewlett-Packard and cases that have followed it, what happens when there's been no objection and no issue about the claim construction is that you look to see whether the determination of infringement that's made under the claim construction is a reasonable determination.

[00:08:10] Speaker 01:
And if I understand you, you're saying the only reason

[00:08:17] Speaker 01:
that you should win is that you had an expert who said this isn't a wall and that the district court had to accept that expert testimony despite his ability to look at the cap.

[00:08:30] Speaker 02:
Oh, no, absolutely not, Your Honor.

[00:08:32] Speaker 02:
We're not saying simply having an expert allows you to win.

[00:08:35] Speaker 02:
So for the example where the expert's opinion is not founded on any other type of evidence, then the expert can be rejected.

[00:08:43] Speaker 02:
But this is not that type of a case.

[00:08:45] Speaker 01:
This is a case where there are... You're saying that once the expert says, I'm an expert and there's a wall here, the district court can't say, I've looked at the device and I don't see a wall.

[00:08:59] Speaker 01:
So you lose.

[00:09:00] Speaker 01:
He can't say that.

[00:09:01] Speaker 02:
But what you're saying there, Your Honor, then, is that someone who does not qualify as a person of ordinary skill in the art

[00:09:10] Speaker 02:
can reject or ignore that evidence.

[00:09:14] Speaker 02:
And what the standard is for experts, as I understand it, is you can give the expert's opinion very, very little weight.

[00:09:22] Speaker 02:
But you can't simply ignore that it has no evidentiary value where the evidence is founded upon opinion.

[00:09:30] Speaker 02:
And to go back to your other point,

[00:09:31] Speaker 02:
The parties didn't just agree on a construction.

[00:09:35] Speaker 02:
The judge had a construction of a structure that separates volume.

[00:09:42] Speaker 02:
And the judge's construction where he adds that element may be appropriate under claim four, because if you look at how wall is defined in claim four, or how wall is part of the claim limitation, a wall being formed circumferentially

[00:10:00] Speaker 02:
on the inner surface of the cap.

[00:10:03] Speaker 02:
So you have two different limitations with respect to wall.

[00:10:07] Speaker 02:
You have one that uses on, and you have one that uses by.

[00:10:13] Speaker 02:
And when you're reading that footnote, Your Honor, you're seeing that the judge is saying, I'm not seeing a structure independent of the cap.

[00:10:22] Speaker 02:
But the limitation in claim 20 specifically says

[00:10:27] Speaker 02:
that the wall can be the cap.

[00:10:30] Speaker 02:
And that's what happened here.

[00:10:32] Speaker 02:
It was brought down in order to allow that pressure to exist to separate volumes.

[00:10:40] Speaker 02:
The issue I think the district court was having in its footnote is he was saying, well, there's no structure.

[00:10:47] Speaker 02:
It's effectively just being caused by the pressure.

[00:10:51] Speaker 02:
But that cannot stand either because we know that the structure was removed.

[00:10:57] Speaker 02:
The Chief Technology Officer of Loracca removed that structure.

[00:11:05] Speaker 02:
And I'm going to reserve the rest of my time for rebuttal.

[00:11:08] Speaker 00:
Yes, let's hear from the other side and we will return to rebuttal.

[00:11:18] Speaker 03:
Mr. Norrod.

[00:11:19] Speaker 03:
May it please the court.

[00:11:20] Speaker 03:
My name is Warren Norrod.

[00:11:21] Speaker 03:
I represent Loracca, defendant in the trial and here today.

[00:11:27] Speaker 03:
I have a presentation, but I want to make sure that we hit what's been asked already.

[00:11:32] Speaker 03:
As the court has observed, appendix 11, court's conclusions of law, he looked at his claim construction and he recognized that we've talked about this and it requires a structure that's more than the general cap.

[00:11:49] Speaker 03:
In fact, he uses the phrase, it has to be more than a boundary in the claim construction order and in his finding his conclusions of law.

[00:11:58] Speaker 03:
But what do we see from the expert?

[00:12:03] Speaker 03:
He says, I think there have to be walls in almost every pump.

[00:12:07] Speaker 03:
There has to be some boundary through by which the water is directed.

[00:12:10] Speaker 03:
And this is through walls, through guiding structures.

[00:12:14] Speaker 03:
And then when we asked, are you aware this patent was issued on the base of a particular wall structure, a particular wall structure, he says, I didn't understand that.

[00:12:24] Speaker 03:
In this case, we have the happy circumstance

[00:12:28] Speaker 03:
that a very similar construction was provided as prior art.

[00:12:34] Speaker 03:
And the inventor said, oh no, we have this little wall, this little tab that comes down here.

[00:12:40] Speaker 03:
It's an actual wall.

[00:12:41] Speaker 03:
This other, this prior art, it just has a flat surface.

[00:12:44] Speaker 03:
It's just a flat surface.

[00:12:45] Speaker 03:
It's not at all a wall.

[00:12:47] Speaker 03:
So we know.

[00:12:48] Speaker 03:
And it was granted on that basis.

[00:12:50] Speaker 03:
It's in the appendix.

[00:12:52] Speaker 03:
So that testimony I just gave you is at 1326.

[00:12:54] Speaker 03:
So Dr. Johnson's arguing that every pump

[00:12:58] Speaker 03:
has a wall, which, of course, makes it meaningless.

[00:13:02] Speaker 03:
And he says, well, the area as a wall works well enough, ignoring that.

[00:13:10] Speaker 03:
Now, we asked him about this.

[00:13:11] Speaker 03:
He didn't know what the rule recapture was, which was attempted by the inventor later on to try to get back this idea that he could use an area as a wall.

[00:13:21] Speaker 03:
It was disallowed.

[00:13:23] Speaker 03:
And then, of course, Dr. Johnson says,

[00:13:27] Speaker 03:
I'm not familiar with the patent prosecution.

[00:13:30] Speaker 03:
I'm not familiar with doctrine of equivalence.

[00:13:32] Speaker 03:
I'm not familiar with more than that.

[00:13:34] Speaker 01:
I've got to say that I don't think that this is correct.

[00:13:36] Speaker 01:
I don't think at the infringement stage that you make a determination about what the prosecution history is.

[00:13:44] Speaker 01:
I mean, if this were a jury trial, that would be appropriate to put that in front of the court.

[00:13:50] Speaker 01:
You have to deal with the claim construction you've got, which no one challenged, and to determine whether the

[00:13:58] Speaker 01:
district court committed clear error in finding that this cap doesn't satisfy the claim construction.

[00:14:05] Speaker 01:
It's not supposed to be looking at that point to the prosecution history, to the specification, to the prior art.

[00:14:13] Speaker 01:
That's all irrelevant in making the infringement determination.

[00:14:20] Speaker 03:
But if we have a doctrine of equivalence that's disallowed, as it was by summary judgment, the court said you can't use doctrine of equivalence.

[00:14:28] Speaker 03:
You can't use functional limitations.

[00:14:30] Speaker 03:
You have to show literal infringement.

[00:14:33] Speaker 03:
You have to show a wall.

[00:14:34] Speaker 03:
You can't simply say this area works.

[00:14:36] Speaker 01:
Right.

[00:14:36] Speaker 01:
And making that determination and making that infringement determination, prosecution history, at that point, is not relevant.

[00:14:45] Speaker 01:
That's not part of the infringement determination.

[00:14:47] Speaker 01:
That's claim construction.

[00:14:49] Speaker 01:
And claim construction's not in front of us.

[00:14:51] Speaker 01:
The claim construction was what it was.

[00:14:54] Speaker 01:
Neither party at this point disagrees with it.

[00:14:56] Speaker 03:
Well, I certainly.

[00:14:58] Speaker 03:
My point was that the court was following its claim construction, and the expert was not.

[00:15:05] Speaker 03:
The expert was saying, the area can be a wall.

[00:15:10] Speaker 03:
A flat surface can be a wall.

[00:15:13] Speaker 03:
And the court said that couldn't be.

[00:15:17] Speaker 04:
Let me ask you, the term at issue, the claim term at issue, is a wall.

[00:15:22] Speaker 04:
The court's construction was,

[00:15:25] Speaker 04:
As follows, the court construes a wall to mean a dividing structure that separates a volume.

[00:15:32] Speaker 04:
So what we have to have is, do we have a structure that separates a volume?

[00:15:37] Speaker 04:
And then in his infringement ruling, he said, referred to the court's construction of wall requires a structure, not simply a boundary defining a space.

[00:15:50] Speaker 04:
But why is there not some kind of structure in this

[00:15:55] Speaker 04:
in this cap.

[00:15:58] Speaker 03:
The way that I look at it, as I just say, if I were to take a BB and just roll it down, it'd just go right down.

[00:16:03] Speaker 03:
It wouldn't hit anything.

[00:16:05] Speaker 03:
There's nothing that I would consider a speed bump.

[00:16:08] Speaker 03:
There's nothing there.

[00:16:09] Speaker 03:
Opposing counsel talks about a ridge.

[00:16:11] Speaker 03:
I did a word search in the full transcript.

[00:16:14] Speaker 03:
Dr. Johnson never talked about a ridge.

[00:16:16] Speaker 03:
He never says or tries to make the argument

[00:16:19] Speaker 03:
at this so-called ridge, which you can kind of see.

[00:16:21] Speaker 03:
It's a difference in the angle.

[00:16:23] Speaker 03:
It's a little sort of a crest.

[00:16:26] Speaker 03:
Right.

[00:16:26] Speaker 03:
But Dr. Johnson didn't identify that.

[00:16:29] Speaker 03:
That's simply not in the record.

[00:16:30] Speaker 03:
The only place in the entire record of the entire case where the word ridge shows up is one time in the claim construction order when Judge Guilford is remarking that he comes to his conclusion that he's going to use the second definition of the wall, which we provide.

[00:16:47] Speaker 03:
He declined to say that it had to be upright in a way that we wanted it to be.

[00:16:52] Speaker 03:
But he did say it had to divide.

[00:16:54] Speaker 03:
It has to be a real division.

[00:16:55] Speaker 03:
Did he use the word ridge?

[00:16:57] Speaker 03:
He used the word ridge one time in his claim construction.

[00:17:01] Speaker 03:
But it's nowhere else in the record, anywhere.

[00:17:04] Speaker 01:
And what did he say about it in the claim construction?

[00:17:07] Speaker 04:
He said he said that because I'm looking at the claim construction here is it a 64 through on this point, I guess a 64 through 67 where is where does in that does he talk about read or is Ridge mentioned?

[00:17:33] Speaker 04:
Now was there some kind of a a

[00:17:37] Speaker 04:
hearing at which it might have been mentioned, but just in the written record, where is it mentioned here?

[00:17:41] Speaker 03:
I guess I don't see it.

[00:17:42] Speaker 03:
I just misimagine that.

[00:17:46] Speaker 03:
Maybe we talked about it during the hearing.

[00:17:48] Speaker 03:
But it's nowhere in Dr. Johnson never tries to make that argument.

[00:17:53] Speaker 03:
That's my real point.

[00:17:54] Speaker 03:
It's just not part of the record.

[00:17:55] Speaker 03:
You're saying it's not part of the experts statement?

[00:18:00] Speaker 03:
Right.

[00:18:00] Speaker 03:
You cannot impute a discussion anywhere that Dr. Johnson

[00:18:05] Speaker 03:
speaks where he says, well, I've identified this ridge as the dividing structure.

[00:18:11] Speaker 03:
He never says that.

[00:18:12] Speaker 03:
In fact, he even says when we ask him, so the wall can be flat, he says yes.

[00:18:19] Speaker 04:
So let me ask you one question.

[00:18:20] Speaker 04:
It relates to your cross appeal.

[00:18:24] Speaker 04:
Obviously, there's one of two possibilities here on the infringement issue.

[00:18:28] Speaker 04:
We would affirm

[00:18:31] Speaker 04:
or we would disagree with the district court and reverse, correct?

[00:18:35] Speaker 04:
Correct.

[00:18:36] Speaker 04:
Okay, now obviously if we were to reverse, you would want us, we would

[00:18:42] Speaker 04:
you'd want us to reach the inventorship cross-appeal, correct?

[00:18:45] Speaker 04:
Absolutely.

[00:18:47] Speaker 04:
If on the other hand we affirm, what is your position with respect to the inventorship cross-appeal?

[00:18:54] Speaker 04:
Do you still pursue it?

[00:18:55] Speaker 04:
Do you still want us to rule on it?

[00:18:58] Speaker 04:
What's your position?

[00:18:59] Speaker 03:
We still want you to rule on it.

[00:19:01] Speaker 03:
This is an active patent that's the basis of other patents.

[00:19:07] Speaker 03:
There's a lot going on, and so it's still an important issue.

[00:19:15] Speaker 03:
If I could go on, as the court has identified, the court, Judge Guilford found that there was a failure to prove its case, for the Ecoget field to prove its case.

[00:19:30] Speaker 03:
As opposed to what my opposing counsel said, the trial transcript shows that Ecoget did not provide competent testimony in favor of infringement.

[00:19:40] Speaker 03:
You cannot simply say an expert has spoken, thus and so you win.

[00:19:45] Speaker 03:
just because the other side doesn't have an expert.

[00:19:50] Speaker 03:
It also, in order to get where it wants to go, it has to have a narrative that says Larocco provided no evidence.

[00:19:57] Speaker 03:
Of course, Larocco used the evidence of Dr. Johnson himself to show that they had a misunderstanding of what the claims were supposed to be and how it's supposed to be construed.

[00:20:10] Speaker 03:
We also had Dr. Lee that provided his personal involvement, what he could do.

[00:20:15] Speaker 03:
And of course, this court has already said that a trial court can make its own judgment about who has credibility.

[00:20:24] Speaker 03:
As I've already said, EcoJet has to show literal infringement and not mere functional equivalence.

[00:20:32] Speaker 03:
The doctrine of equivalence was ruled on as a, in summary judgment, at 3.53, you can find it at 1164 in the record, they may not say

[00:20:45] Speaker 03:
This serves the function of a wall.

[00:20:49] Speaker 03:
They have to say this is the wall.

[00:20:52] Speaker 03:
That's the point of that.

[00:20:54] Speaker 03:
There's a figure of 20 that's part of an amendment that discusses this at 1594, and it's discussed by the claim construction order.

[00:21:03] Speaker 03:
So whenever the expert says this qualifies as a wall,

[00:21:11] Speaker 03:
It does not lead inexorably to a conclusion that has provided competent evidence.

[00:21:17] Speaker 03:
It has to meet the claim construction.

[00:21:20] Speaker 03:
We observe, and we've already reserved a couple times now, in the appendix at 9 and 10, Judge Guilford's observation that Dr. Johnson identified the general surface of the cap only.

[00:21:32] Speaker 03:
What page is this in the appendix?

[00:21:33] Speaker 03:
It's on page 10.

[00:21:34] Speaker 03:
10, okay.

[00:21:36] Speaker 03:
Yes, sir.

[00:21:38] Speaker 03:
Now, I would point out that this is not an expert.

[00:21:40] Speaker 03:
This is not a case of an exotic fire.

[00:21:44] Speaker 03:
We have to figure out what's going on.

[00:21:45] Speaker 03:
These are two people talking about a pump, and everybody knows how the pump works.

[00:21:50] Speaker 03:
The only question is whether the interior surface of the cap by itself can be interpreted to be a wall in light of the claim construction.

[00:21:58] Speaker 03:
Opposing counsel and the expert wants to say it's the opposing cap and the impeller and all this together that provides the function of a wall.

[00:22:06] Speaker 03:
That's not what the claim construction requires.

[00:22:08] Speaker 03:
As I've already read, Dr. Johnson said there has to be a boundary.

[00:22:12] Speaker 03:
He describes it as a boundary at one point.

[00:22:15] Speaker 03:
And we ask him, so it could be flat.

[00:22:18] Speaker 03:
He says, yes, the wall can be flat.

[00:22:22] Speaker 03:
So we would say Dr. Johnson's testimony is incompetent because he failed to testify the infringement was based on the court's claim construction, but only on functional equivalence.

[00:22:34] Speaker 03:
This is not an argument available to eject.

[00:22:37] Speaker 03:
As the court knows, and this court has taught, the expert may testify the ultimate issue, but nothing in the rule requires a fact finder to accept that conclusion.

[00:22:45] Speaker 03:
The court's already picked up on the misconstruction of Symbol versus Opticon.

[00:22:56] Speaker 03:
By arresting its case on expert testimony, Symbol was exposed to a risk that cross-examination of its expert would demonstrate that the accused devices are non-infringing.

[00:23:06] Speaker 03:
under a different and proper construction of the claims.

[00:23:10] Speaker 03:
EcoJet does give lip service to the standard, but their brief only argues that failure to give their expert sufficient credibility is the clear error necessitating reversal.

[00:23:22] Speaker 03:
You and those trial courts are free to reject expert testimony and not required.

[00:23:28] Speaker 03:
Opposing counsel has made much of the fact that we've advised them to go ahead and change their cap, and they did so, and it's not a problem.

[00:23:37] Speaker 03:
That doesn't lead to a finding of infringement.

[00:23:40] Speaker 03:
It leads to a prudent decision that says we don't get to get sued anymore on something that people can throw a hook on.

[00:23:47] Speaker 03:
But the fact is that we can make this change, and it doesn't impact our operations at all, and it was easy.

[00:23:53] Speaker 03:
It certainly doesn't lead to a finding of infringement, but a finding that this was not a wall that had any impact.

[00:24:05] Speaker 03:
As you saw in Centrica, no expert is necessary for simple technology of this type.

[00:24:12] Speaker 03:
You could get claims that Judge Guilford ignored a wealth of evidence.

[00:24:16] Speaker 03:
And you could get failed to write any relevant evidence.

[00:24:18] Speaker 03:
Of course, the claim conclusions of law says otherwise.

[00:24:25] Speaker 03:
He also says that we provided our requirement for a claim was that we have a separate structure of some kind.

[00:24:34] Speaker 03:
You can see in the record at 64 through 66, Morocco proposed two definitions of the claim construction.

[00:24:41] Speaker 03:
The court ultimately picked the second one of those two.

[00:24:45] Speaker 03:
There was back to Centricut.

[00:24:48] Speaker 03:
In Centricut, the court found that when a defendant's expert testifies against infringement in a complex art, and the plaintiff has no expert, the plaintiff is likely to fail.

[00:25:01] Speaker 03:
This case stands as an apt example of what may befall a patent law plaintiff who presents complex subject matter without inputs from experts qualified when the accused infringer has negated infringement with its own expert.

[00:25:14] Speaker 03:
We're different from that in every way.

[00:25:16] Speaker 03:
We didn't have an expert, and they did.

[00:25:18] Speaker 03:
But all they did, to me, this is kind of like an expert saying, all of these things happened five years ago.

[00:25:24] Speaker 03:
And he addresses it, and he explains every little thing that happened five years ago, but you have a statute of limitations of two years.

[00:25:31] Speaker 03:
That expert didn't help you.

[00:25:33] Speaker 03:
It provided a lot of testimony, a lot of evidence.

[00:25:36] Speaker 03:
If the doctrine of equivalence was available to you to prove its case, maybe you'd have something, maybe you wouldn't.

[00:25:42] Speaker 03:
But since it doesn't have that available, you can't say, well, it serves the function of, and they're going to get there.

[00:25:50] Speaker 03:
I'm assuming my 30 seconds is including the five minutes for rebuttal.

[00:25:55] Speaker 03:
OK.

[00:25:56] Speaker 03:
Any other questions before I sit down?

[00:26:05] Speaker 00:
Thank you.

[00:26:08] Speaker 02:
Thank you, Your Honor.

[00:26:10] Speaker 02:
Again, the construction of wall here is a dividing structure that separates volume.

[00:26:15] Speaker 02:
There's no dispute that the accused device works because it separates volume.

[00:26:24] Speaker 02:
My friend here is absolutely correct that why

[00:26:31] Speaker 02:
a defender or the appellee here, changed their cap.

[00:26:36] Speaker 02:
Their intent is irrelevant.

[00:26:38] Speaker 02:
But what is relevant about that is that something was removed and that something is a structure.

[00:26:48] Speaker 02:
So while we may look at it as flat and worse and well, is that angle meaningful?

[00:26:53] Speaker 02:
What we know is that Loralco went through several designs of this cap until they got it to work.

[00:27:01] Speaker 02:
And the one they got work had a structure on it so that the water could be divided.

[00:27:10] Speaker 02:
And how do we know that was a structure?

[00:27:12] Speaker 02:
It was removed.

[00:27:14] Speaker 02:
And that's what our experts said.

[00:27:16] Speaker 02:
There is a structure between these two, and that's what makes it work.

[00:27:21] Speaker 02:
Do all of these types of pump need some type of structure to separate volumes?

[00:27:28] Speaker 02:
Absolutely.

[00:27:29] Speaker 02:
But the invention here is not simply the wall.

[00:27:32] Speaker 02:
The invention here

[00:27:33] Speaker 02:
was being able to accomplish that functionality with fewer parts.

[00:27:40] Speaker 02:
And the fewer parts here was to have the cap in and of itself, have a structure that can perform that function.

[00:27:51] Speaker 02:
And that is what Dr. Johnson testified to.

[00:27:54] Speaker 02:
He didn't just offer blanket testimony that I'm an expert and this is it.

[00:28:00] Speaker 02:
He showed it to the judge.

[00:28:01] Speaker 02:
He provided demonstratives to the judge to show how it worked.

[00:28:05] Speaker 02:
He looked at the CAD drawings and drew it out.

[00:28:08] Speaker 02:
And in our reply brief, we show that structure.

[00:28:11] Speaker 02:
So while it may not be a wall,

[00:28:14] Speaker 02:
the way we would understand a wall, it is clearly a wall as the parties agreed with the court's construction, a dividing structure that separates volume.

[00:28:25] Speaker 02:
There was a structure there that divided.

[00:28:28] Speaker 02:
And the fact that my friend here talks about that

[00:28:34] Speaker 02:
The accused device doesn't have the embodiment that was discussed in prosecution.

[00:28:39] Speaker 02:
That's meaningless.

[00:28:41] Speaker 02:
Because any embodiment, as you know, we're entitled to the full breadth of the claim.

[00:28:45] Speaker 02:
And I would agree that you may be able to defend the judge's ruling as not clear error with respect to four.

[00:28:54] Speaker 02:
where in four, the wall has the additional limitation of being formed circumferentially on the inner surface of the cap.

[00:29:03] Speaker 02:
But with respect to claim 20, you have clear error.

[00:29:08] Speaker 02:
Because there, the wall includes the additional limitation of being formed by the cap.

[00:29:16] Speaker 02:
So the cap in and of itself has the structured wall.

[00:29:21] Speaker 02:
And that is what we have here.

[00:29:23] Speaker 02:
And that is what that limitation requires.

[00:29:26] Speaker 02:
So in 20,

[00:29:27] Speaker 02:
If the accused actually put an additional structure on their cap, they wouldn't practice that element because the cap in and of itself is not doing it.

[00:29:37] Speaker 02:
But here the cap in and of itself is doing it.

[00:29:41] Speaker 02:
And I'll just go back to my last basic point here is we need some direction on how infringement is going to be judged.

[00:29:49] Speaker 02:
Because if it is to the standard of a

[00:29:54] Speaker 02:
person of ordinary skill in the art, which what Dr. Johnson was, his opinion is deserving of some weight.

[00:30:03] Speaker 02:
And the judge here did not say that, I believe it's something different.

[00:30:09] Speaker 02:
He said we did not have a preponderance of the evidence.

[00:30:13] Speaker 02:
We absolutely did because we had evidence.

[00:30:16] Speaker 02:
And while there are instances where you can, tri-refacts can reject or can limit testimony based on credibility, A, there was no credibility determination here.

[00:30:28] Speaker 02:
And it's clear under, I believe it's the,

[00:30:33] Speaker 02:
The bear case, you can't simply reject expert testimony and credibility grounds.

[00:30:38] Speaker 02:
And that's not here.

[00:30:39] Speaker 02:
So this would be a very unusual case to affirm a case where a judge simply disagrees with an expert.

[00:30:47] Speaker 02:
And on his own evaluation of the evidence, which was part of the center cut decision, the judge on his own did this, did not find any independent.

[00:30:55] Speaker 02:
There was no independent witness who came up and testified, I don't believe it's a law.

[00:31:00] Speaker 02:
There's no evidence in the record other than device itself.

[00:31:02] Speaker 02:
And Judge Dyke is right.

[00:31:04] Speaker 02:
He's free to look at it.

[00:31:06] Speaker 02:
But is he free then to reject the expert?

[00:31:09] Speaker 02:
The argument here is the expert wasn't talking about the wall.

[00:31:12] Speaker 02:
The expert absolutely was talking about the wall as construed by this court, a dividing structure that separates volume.

[00:31:20] Speaker 02:
That's what it is.

[00:31:21] Speaker 02:
Thank you.

[00:31:25] Speaker 00:
Thank you.

[00:31:33] Speaker 00:
You would save some time from cross-appeal, but there was no response.

[00:31:38] Speaker 00:
So I believe we have the arguments that we need.

[00:31:44] Speaker 00:
Thank you.