[00:01:11] Speaker 03:
We're in brief recess.

[00:01:14] Speaker 03:
So relax for a moment.

[00:01:59] Speaker 03:
OK.

[00:02:00] Speaker 03:
Next argued case is 191649, HVL-PO2 against oxygen frog.

[00:02:10] Speaker 03:
Mr. Sipple.

[00:02:12] Speaker 01:
Thank you.

[00:02:17] Speaker 01:
May it please the court.

[00:02:19] Speaker 01:
My name is Marty Sipple.

[00:02:21] Speaker 01:
I'm an attorney in Tallahassee, Florida.

[00:02:23] Speaker 01:
On behalf of the appellant, HVL P02 LLC, and with me is my co-counsel, Ali Aker.

[00:02:31] Speaker 01:
Your Honors, the issue in this case is what is the minimum required to sustain the burden of proof on an obvious defense in a patent infringement action?

[00:02:44] Speaker 01:
As the Court is aware, this

[00:02:47] Speaker 01:
This these patents in suit were invalidated based on two Prior our references one known as the low tide video which was published on YouTube back in 2010

[00:03:01] Speaker 01:
And the other, which is referred to as the Coronet reference, which was published on an internet website called The Melting Pot also in 2010.

[00:03:11] Speaker 01:
There is several critical holes in the proof that require reversal

[00:03:23] Speaker 01:
of this judgment of invalidity, and I want to walk through each of those.

[00:03:27] Speaker 01:
The first is with respect to the low tide video that was published on YouTube.

[00:03:33] Speaker 01:
The issue there is whether that constitutes a printed publication within the meaning of 35 USC section 102.

[00:03:42] Speaker 01:
And we would contend that it does not qualify.

[00:03:46] Speaker 01:
And specifically, the reason it doesn't qualify

[00:03:50] Speaker 01:
is because there was no evidence put on at trial that a person skilled in the art back in 2012, which is the priority date of these patents, would have been motivated to go to YouTube to find pertinent prior art.

[00:04:07] Speaker 04:
The problem I have with that argument is we have printed publications where we found things like

[00:04:15] Speaker 04:
a thesis in a shoebox in the basement of a library in Germany was a prior art that could be used under 102.

[00:04:25] Speaker 04:
With all due respect, a YouTube video is much more accessible than what I just described.

[00:04:30] Speaker 01:
Maybe.

[00:04:31] Speaker 01:
I mean, it depends.

[00:04:32] Speaker 01:
And I think that's the key is maybe.

[00:04:35] Speaker 01:
And I'll direct.

[00:04:36] Speaker 04:
But that would be a question of fact.

[00:04:38] Speaker 01:
There has to be some facts.

[00:04:40] Speaker 01:
There has to be some facts presented.

[00:04:42] Speaker 01:
There was no evidence whatsoever presented

[00:04:45] Speaker 01:
as to what a person skilled in the art in 2012 would be motivated to look at.

[00:04:49] Speaker 01:
And let me address your shoebox comparison.

[00:04:54] Speaker 01:
It may be that that shoebox was maintained by somebody whose people skilled in the art were familiar with and would know to go... It wasn't.

[00:05:03] Speaker 04:
It was a PhD candidate.

[00:05:05] Speaker 04:
That was a PhD thesis.

[00:05:07] Speaker 04:
So a PhD candidate would, by virtue of their position,

[00:05:12] Speaker 04:
not be a known, skilled artisan.

[00:05:15] Speaker 01:
Well, I don't know the case you're referring to, but the case that I've- It's called Inray Hall.

[00:05:19] Speaker 01:
What's it called?

[00:05:20] Speaker 04:
It's called Inray Hall, if you ever want to look at it.

[00:05:22] Speaker 01:
But the case that I'm relying on is called Blue Calypso.

[00:05:26] Speaker 01:
And that was a case where, similar to what you're talking about, the person published a hyperlink on their personal web page.

[00:05:36] Speaker 01:
I think Judge Chen was involved in this case.

[00:05:37] Speaker 04:
So when something is on easily accessible internet

[00:05:42] Speaker 04:
web searchable kind of place.

[00:05:46] Speaker 04:
Do you think that the accused infringer who is seeking to enter that in as prior art must also in every case, no matter what the reference is, establishes that the location in which it is

[00:06:03] Speaker 04:
is the kind of location that a skilled artist would have gone to.

[00:06:08] Speaker 04:
You think they have to do that even if you've introduced nothing that suggests it's not.

[00:06:13] Speaker 04:
You think they have to do that even if you've introduced nothing by way of evidence that suggests this is not the kind of place someone would go.

[00:06:23] Speaker 01:
party asserting the invalidity defense for sure.

[00:06:26] Speaker 04:
And think about... So every printed publication that's a magazine, that's a thesis, that's searchable on the internet, you would like us to create a rule of law that adds to the list of things that somebody entering that reference into evidence must establish.

[00:06:45] Speaker 04:
They must put up a skilled artisan to say, I would have gone to that location to look.

[00:06:53] Speaker 01:
I think that in this context, when you're talking about what I would refer to as an obscure internet site.

[00:07:00] Speaker 04:
You think YouTube is obscure?

[00:07:01] Speaker 01:
No, no.

[00:07:02] Speaker 04:
You may be too old for that.

[00:07:03] Speaker 01:
That's what the district judge said.

[00:07:06] Speaker 01:
But think about the implications of what you're asking.

[00:07:11] Speaker 01:
Instagram, Facebook.

[00:07:14] Speaker 01:
YouTube I mean where does it stop where does it stop with the obligation of someone skilled in the art and mind you seven years ago to I Mean you don't have to prove anything you have you have to are you I mean you can't assume that

[00:07:30] Speaker 01:
that this was something a person skilled in the art would have been motivated to go look at.

[00:07:35] Speaker 01:
Again, I say, should they have went to Mr. Peab's Instagram account?

[00:07:38] Speaker 01:
Should they have went to Mr. Peab's Facebook account?

[00:07:40] Speaker 01:
Where does it stop?

[00:07:41] Speaker 04:
Why would they go to a thesis in the basement of a German library?

[00:07:45] Speaker 04:
We got a lot of printed publication cases.

[00:07:47] Speaker 01:
I mean, this case, in our view, is on all fours with blue calypso.

[00:07:52] Speaker 01:
The holding in that case was that there was no proof that a person skilled in the art would have been motivated.

[00:07:59] Speaker 02:
If I can recall what happened in blue calypso, this just happened to be one graduate student.

[00:08:05] Speaker 02:
that had her own personal webpage, and she posted some paper that she had drafted on her personal webpage.

[00:08:16] Speaker 02:
But there was no evidence that

[00:08:21] Speaker 02:
it had been tagged in a way that it could be findable unless you knew this particular web address for this particular grad student and then looked around on that web page to see what kind of papers she may have posted.

[00:08:38] Speaker 02:
YouTube is something that's widely accessible and it does feel like something that's just

[00:08:48] Speaker 02:
a lot of different things that are in the public domain and YouTube itself is searchable and so you can quickly access all the different

[00:08:59] Speaker 02:
videos that have been uploaded onto YouTube.

[00:09:03] Speaker 02:
That's why it feels a little different to me, maybe actually a lot different to me than a random webpage of a single person that's occupying some netherworld of cyberspace that you can't really get to unless you actually know that specific web address.

[00:09:26] Speaker 01:
I understand your question.

[00:09:28] Speaker 01:
I think that Mr. Peebs is no less obscure in this case than that PhD student was in that case.

[00:09:35] Speaker 01:
So the question is, and it's the same question I posed in the district court is,

[00:09:39] Speaker 01:
The issue isn't whether you can find it if you went to YouTube.

[00:09:44] Speaker 01:
The question is, why would you go to YouTube in the first place?

[00:09:48] Speaker 01:
That's the issue.

[00:09:49] Speaker 01:
And I will repeat, there's no evidence in this record that anybody would have in 2012.

[00:09:56] Speaker 01:
And that's the issue squarely before this court.

[00:10:00] Speaker 01:
Judge Moore's concern that we're creating some sort of new evidentiary standard.

[00:10:04] Speaker 01:
But the burden is on the plaintiff to prove this and prove that it's a printed publication.

[00:10:09] Speaker 01:
And we're talking about patents that have a presumption of validity.

[00:10:14] Speaker 01:
And the standard to validate them is by clear and convincing evidence.

[00:10:19] Speaker 01:
So it's not a little deal here.

[00:10:21] Speaker 01:
These were issued United States patents to my clients.

[00:10:25] Speaker 01:
So yes, we think Blue Calypso does control here and that that is grounds number one for reversing these judgments.

[00:10:34] Speaker 01:
Grounds number two is there's no evidence that either the low tide or the cornet reference disclose a controller device that sends a signal.

[00:10:48] Speaker 01:
The case I cite on this is PAR Pharmaceuticals, which stands for the proposition that when you have... Is this your argument about that little gray box?

[00:10:55] Speaker 01:
Yeah, this is partially about the little gray box, yes.

[00:10:59] Speaker 04:
You didn't bring one with you, did you?

[00:11:00] Speaker 01:
What's that?

[00:11:01] Speaker 04:
Did you bring one with you?

[00:11:02] Speaker 02:
Oh, it's in my brief.

[00:11:04] Speaker 02:
There's a picture in my brief.

[00:11:06] Speaker 02:
I guess my understanding of Coronet is it shows you the picture and then it describes the picture and describes how the Coronet system works and it talks about how the system shuts off at 100 PSI and turns on at 80 PSI.

[00:11:26] Speaker 02:
Yes.

[00:11:27] Speaker 02:
I mean, you have to do a little bit of 1 plus 1 plus 1 equals 3.

[00:11:32] Speaker 02:
But the point here, it seems to strongly indicate that there's something automatic about the system turning off and turning on.

[00:11:40] Speaker 02:
And when it's talking about the system, it describes the system as having two concentrators of a compressor.

[00:11:47] Speaker 02:
And so therefore, whatever

[00:11:52] Speaker 02:
device is that's turning on and turning things off, it's turning off both concentrators and the compressor.

[00:12:00] Speaker 02:
It's turning on both concentrators and the compressor at the same time.

[00:12:07] Speaker 02:
And everything that I just described sounds exactly like what the claimed controller is doing.

[00:12:15] Speaker 01:
Maybe to an engineer.

[00:12:17] Speaker 01:
The person skilled in the art is not an engineer.

[00:12:19] Speaker 01:
Got to remember that.

[00:12:20] Speaker 01:
It's a handy bead maker.

[00:12:23] Speaker 01:
And Mr. Cornett, I asked him that specific question.

[00:12:27] Speaker 01:
Could you tell by this narrative that that was a control or device?

[00:12:36] Speaker 01:
He said, no.

[00:12:37] Speaker 01:
The only way you know is by looking at the picture.

[00:12:39] Speaker 01:
And I cited that colloquially in my reply brief.

[00:12:43] Speaker 01:
So no, we don't think we think that evidence in the record evidence is you have to look at the picture and the picture tells you nothing Mr. Gilmore the engine the only engineer who testified in this case other than mr. Fleischman Said I wouldn't know what that thing is just by looking at that picture and so so that's problem number one with the cornet reference problem number two let's assume that

[00:13:10] Speaker 01:
Judge Chan, that somebody might have known that's a controller.

[00:13:13] Speaker 01:
The problem is it's not a digital controller.

[00:13:16] Speaker 01:
It doesn't send a signal.

[00:13:18] Speaker 01:
The claims, and specifically claim one, which I've quoted in the brief, specifically says send a signal.

[00:13:27] Speaker 01:
And the record in the case, I'm pointing the wrong way, Mr. Fleischman admitted at trial that the cornet

[00:13:35] Speaker 01:
controller does not send a signal and that's at page 372 of the appendix.

[00:13:43] Speaker 01:
As I understand it, the claim doesn't call for a digital controller, it just says controller.

[00:13:49] Speaker 01:
Calls for a controller that sends a signal

[00:13:52] Speaker 01:
And the trial evidence is that the type of controller that sends a signal is a digital controller.

[00:14:00] Speaker 01:
And that's what I'm trying to emphasize, that Mr. Fleischman agreed with that at trial, that the cornet is a mechanical controller, which has to be hardwired to the other components.

[00:14:13] Speaker 04:
You're about to run into your rebuttal time.

[00:14:14] Speaker 04:
Can I ask you?

[00:14:15] Speaker 01:
Oh, I'm sorry.

[00:14:16] Speaker 04:
Can you tell me what was the nature of, I am troubled by the idea that there are only four witnesses in this case, two by deposition, trans video.

[00:14:28] Speaker 04:
And the only question the jury answered on this patent was obviousness.

[00:14:31] Speaker 04:
And one of the witnesses who was not offered, proffered, or introduced as an expert, nonetheless, testified, I think in four places, that he concluded it would have been obvious to him, this combination.

[00:14:43] Speaker 04:
And I know there was a motion in Lemonay asking that those particular questions and answers not be allowed, and the district court nonetheless allowed them.

[00:14:52] Speaker 04:
But he suggested he would give a curative instruction.

[00:14:54] Speaker 04:
We've asked for the curative instruction.

[00:14:56] Speaker 04:
I understand it's coming possibly on Monday.

[00:14:58] Speaker 04:
Do you have a recollection of what the nature of the curative instruction was that you could share with me?

[00:15:04] Speaker 01:
Basically, what the judge told the jury was,

[00:15:08] Speaker 01:
This is a lay person who you're about to hear this video testimony of.

[00:15:14] Speaker 01:
Your job is to determine the issue of obviousness.

[00:15:19] Speaker 01:
And if that word comes out, you'll have to give it the weight that you think is deemed appropriate.

[00:15:26] Speaker 04:
Oh my goodness.

[00:15:27] Speaker 01:
Now let me say, I may be wrong, but that's my memory.

[00:15:30] Speaker 04:
Did he actually suggest that the jury was entitled to give weight to a layperson's statement about obviousness?

[00:15:39] Speaker 01:
I'm going from memory, so don't hold me to this.

[00:15:41] Speaker 01:
And Mr. Huntsman may correct me.

[00:15:43] Speaker 01:
But I think it was along those lines.

[00:15:46] Speaker 01:
You'll have to give it the way it is.

[00:15:47] Speaker 04:
We'll see Monday, right?

[00:15:48] Speaker 04:
Because we'll have a copy of it.

[00:15:49] Speaker 01:
You'll have that on Monday.

[00:15:50] Speaker 01:
Yes, yes, yes.

[00:15:51] Speaker 01:
OK, I'm in my rebuttal time, so I'll reserve the rest of my time.

[00:15:54] Speaker 01:
Thank you.

[00:15:55] Speaker 03:
OK, good.

[00:15:56] Speaker 03:
Thank you.

[00:16:08] Speaker 03:
Mr. Huntsman.

[00:16:10] Speaker 00:
May it please the court.

[00:16:11] Speaker 00:
My name is Robert Huntsman.

[00:16:13] Speaker 00:
I'm the attorney for the appellees and defendants, which I'll call collectively Oxygen Frog.

[00:16:22] Speaker 00:
I'd like to start with the few minutes I have to talk just a little bit of history that I think might be helpful to the court that may not be fully clear from the briefings.

[00:16:32] Speaker 00:
That may be helpful to some of the issues that we've discussed today.

[00:16:38] Speaker 00:
In early 2000 or so was the first time that people figured out this idea of taking these medical oxygen concentrators and combining them so that they could produce a big enough stream of oxygen to supply these glass torches.

[00:16:57] Speaker 00:
And that was long before the invention here.

[00:17:02] Speaker 00:
The invention here came later, or the claimed invention I should say, came later on a particular variation.

[00:17:10] Speaker 00:
These systems are used primarily in two different ways by these glass blowers.

[00:17:15] Speaker 00:
One is they'll use an oxygen gathering system just to gather the oxygen and be directly applied to a torch.

[00:17:25] Speaker 00:
Another variation, the one that's at issue here, is it's kind of helpful instead of directly supplying a torch is to

[00:17:32] Speaker 00:
Take the oxygen and put it in a tank for later usage and so when you start putting into a tank then you have the issue of when you're filling a tank you need to shut off the tank when it gets full for safety and other obvious reasons and That's that that's the embodiment that's that's an issue today the by 2010 there was a

[00:17:56] Speaker 00:
this group of glass artists that were very active on the internet.

[00:18:00] Speaker 00:
It wasn't just YouTube.

[00:18:01] Speaker 00:
They had this forum where they discussed these things with each other, and they presented links to the various YouTube videos addressing this subject matter.

[00:18:12] Speaker 00:
When counsel says that there was no facts to support the idea that these YouTube videos were accessible in the record, he's mistaken.

[00:18:20] Speaker 00:
Counsel is ignoring the fact that we had a four-day trial with live witnesses, including

[00:18:25] Speaker 00:
the authors of the YouTube videos and they were able to not only authenticate the videos, the date and so forth, but they had never met each other personally and yet in their testimony they discussed the fact that they had seen the works of each other, that they had seen each other's videos.

[00:18:46] Speaker 00:
So we actually had

[00:18:48] Speaker 00:
factual testimony to support that these particular videos had been seen.

[00:18:54] Speaker 00:
Plus, there's references to... Is it in the record that they'd seen each other's videos?

[00:19:01] Speaker 00:
It is.

[00:19:02] Speaker 00:
You're probably going to ask me where and I'm not going to be able to tell you.

[00:19:05] Speaker 00:
But somewhere in the trial... Yes, in the testimony of Mr. Cornett and in the testimony of Mr. Peebs, they were both asked questions along those lines.

[00:19:17] Speaker 04:
OK, so both of them sort of acknowledged that they had seen each other's YouTube videos.

[00:19:22] Speaker 00:
Right.

[00:19:22] Speaker 00:
And those two and basically everybody that testified except for the expert, Mr. Gilmore, were participants in this web forum where there was the melting pot.

[00:19:35] Speaker 00:
The melting pot, right.

[00:19:37] Speaker 00:
OK, so the particular embodiment

[00:19:45] Speaker 00:
Well, the other thing that happened is the patents at issue had numerous claims.

[00:19:50] Speaker 00:
But as part of the procedure, the parties came to an agreement.

[00:19:55] Speaker 00:
The plaintiff agreed to drop all the claims except for the four that are at issue here.

[00:19:59] Speaker 00:
And in exchange, the defendant agreed to quit selling the accused products.

[00:20:04] Speaker 00:
And so when it came time for claims construction, we only had the four claims that are at issue here.

[00:20:14] Speaker 00:
We did have a claims construction of Markman hearing, and we had the opportunity to brief.

[00:20:19] Speaker 04:
So your client, just so I understand it, is no longer selling the accused product?

[00:20:23] Speaker 00:
That's correct.

[00:20:24] Speaker 04:
Why are we here?

[00:20:25] Speaker 04:
Why couldn't you guys figure out some way to settle this?

[00:20:28] Speaker 04:
I mean, given that you're not selling anymore, and with all due respect, there just can't be that much money at stake in this.

[00:20:34] Speaker 00:
You would have to ask the other party.

[00:20:37] Speaker 00:
I think it's largely over damages for past sales and that sort of thing.

[00:20:44] Speaker 00:
The particular embodiment that was left that's covered is a very narrow one.

[00:20:49] Speaker 00:
It's to solve a problem.

[00:20:51] Speaker 00:
Some of these glass blowers are in residential neighborhoods.

[00:20:54] Speaker 00:
And when you start hooking up these little medical concentrators and you start plugging them in, if you plug in too many of them into one circuit, it'll blow the fuse.

[00:21:05] Speaker 00:
And so the problem that these claims address is the issue of when that happens, what do you do?

[00:21:11] Speaker 00:
Well, the PEEBS.

[00:21:14] Speaker 00:
Reference and Mr.. Peebs in live testimony discussed the fact that You just have to find in their outlet to plug in some of the components Okay, and and so that's that solution there that then raised the problem if you're in the in the

[00:21:31] Speaker 00:
tank thing where you're trying to shut off the tank that means you have more to shut off because now you've got components plugged into two different wall circuits and so there's this little wiring issue is when the tank says shut off I've got enough oxygen you have to shut off everything in two circuits and the solution to that is what's very common in the art is a two-pole switch and these pressure switches

[00:21:55] Speaker 00:
buy them at Lowe's at the big box stores, come in two pole versions.

[00:22:00] Speaker 00:
And what the two pole means is when the switch fires, you can switch two different circuits.

[00:22:07] Speaker 04:
Gray box, right?

[00:22:08] Speaker 04:
Little gray box.

[00:22:08] Speaker 00:
Well, that's the gray box.

[00:22:10] Speaker 00:
And you'll know it in the patent itself.

[00:22:14] Speaker 00:
It says that a controller lists the things that a controller can be in, and it specifically names the mechanical switches, the digital switches, and so forth.

[00:22:21] Speaker 00:
So when it came time to construe the claims,

[00:22:26] Speaker 00:
All the claims that had any detail about what a controller did, except for possibly the signaling, were gone.

[00:22:33] Speaker 00:
And so we were just left with the controller that signals.

[00:22:35] Speaker 00:
And so the issue was, what does the controller have to do to be a controller?

[00:22:44] Speaker 00:
And we argued unsuccessfully that it had to do more.

[00:22:49] Speaker 00:
Because all the patents talked about is all this tricky stuff where you turned on certain components before other components.

[00:22:54] Speaker 00:
Because the claim would mention it and the accused product all just turn everything on at once or off at once.

[00:23:00] Speaker 00:
But the judge concluded that that would be reading the specification into the claims and concluded that the claims of these particular four claims, that the only actions required was that the switch turn everything on and everything off at the same time.

[00:23:16] Speaker 00:
And since the accused product get it, we lost on infringement on summary judgment motion.

[00:23:23] Speaker 00:
And I might add, the plaintiff was very happy with that ruling that day.

[00:23:29] Speaker 00:
Now today, he's come in and saying, no, the control has to do something more than just turn everything on and off.

[00:23:34] Speaker 00:
He's saying that the signaling, he's basically, even though claim construction is not an issue here, he's arguing that the claims would be construed so that signaling has a particular meaning that only a digital controller

[00:23:49] Speaker 00:
could perform.

[00:23:50] Speaker 00:
And I would argue that, A, even though this court can do claims construction de novo, neither party is suggesting that we do that today.

[00:23:59] Speaker 00:
And also, we have the problem that the infringement was found based on the claims construction that's set.

[00:24:07] Speaker 00:
So if the court were inclined to change the claims construction from what the court below used, then

[00:24:17] Speaker 00:
We would ask that the infringement holding be set aside as well, because it was decided based on this current claims construction.

[00:24:24] Speaker 00:
So I think that this idea that signaling requires a digital controller is not supported by the facts.

[00:24:31] Speaker 00:
It sounds like a matter of construction.

[00:24:33] Speaker 00:
The court below basically said that, well, if you signal, causing the thing to shut on or shut off is the sensor signaling to the switch to fire.

[00:24:48] Speaker 00:
That's what we believe is the construction below, and we think it should not be disturbed, and that his argument that a digital controller is required has no merit.

[00:25:02] Speaker 00:
In the few minutes I have left, I would just like to make some observations about this case.

[00:25:07] Speaker 03:
Before you, please go ahead.

[00:25:09] Speaker 02:
Mr. Huntsman, could you talk a little bit about that one instruction from the judge to the jury as to the nature of the lay testimony's discussion in reference to things that may or may not be obvious?

[00:25:25] Speaker 02:
Do you recall what kind of limiting instruction the judge gave?

[00:25:30] Speaker 02:
I know we're going to see the real thing next week, but I'd like to know what you recall.

[00:25:34] Speaker 00:
I think the record you have, I think we had the draft jury instructions, if I recall, are in the supplemental.

[00:25:39] Speaker 00:
And I think my recollection is that he followed pretty closely.

[00:25:45] Speaker 02:
I'm wondering about a specific verbal instruction given before the deposition tape started rolling on Mr. Peebs and his references to obviousness.

[00:25:57] Speaker 02:
If you recall a few minutes ago.

[00:25:58] Speaker 00:
I do not recall.

[00:25:59] Speaker 00:
I mean, I do not recall as I stand here today.

[00:26:03] Speaker 00:
But I would like to say that

[00:26:09] Speaker 00:
In patent law, there's two versions of obviousness.

[00:26:11] Speaker 00:
There's the 103 version of obviousness.

[00:26:13] Speaker 00:
In my own mind, I call that obviousness with the big O. And then there's obviousness in the lay sense.

[00:26:19] Speaker 00:
And the Supreme Court in KSR has explained that obvious to try is a factual method that one can use to try to invalidate a patent.

[00:26:30] Speaker 00:
So it's certainly within the scope of a rule 701 witness

[00:26:36] Speaker 00:
testified his opinion that it's obvious to do something, because it's a matter of fact whether something is obvious to try.

[00:26:46] Speaker 03:
It's not a matter of fact.

[00:26:47] Speaker 03:
It's a matter of law.

[00:26:48] Speaker 00:
Well, I'm saying obvious has two terms.

[00:26:52] Speaker 00:
It has a word that

[00:26:53] Speaker 00:
engineers use that know nothing about the law.

[00:26:56] Speaker 03:
Well, there are underlying facts, but it's a question of law.

[00:26:59] Speaker 03:
I think that that wasn't particularly changed, and I think that the Supreme Court in KSR didn't go so far as to say, don't bother me with the statutes.

[00:27:11] Speaker 00:
No, I'm not saying that.

[00:27:12] Speaker 00:
I'm just saying they didn't go so far as to tell lay witnesses.

[00:27:15] Speaker 03:
They can't use the word obvious because it's- They didn't say lay opinions.

[00:27:20] Speaker 03:
They were, in talking about common sense, were talking about, in the face of that context, the common sense of the person of skill in the field of the invention.

[00:27:34] Speaker 03:
Whether someone walking in off the street and thinking, saying that, well, it's obvious to me, it's not the same.

[00:27:43] Speaker 00:
Correct, it's not the same.

[00:27:45] Speaker 00:
But it's not improper for witnesses to so testify.

[00:27:48] Speaker 03:
We will see.

[00:27:50] Speaker 00:
OK.

[00:27:51] Speaker 00:
The other thing is, if you look at the testimony of both witnesses, they were both asked by Mr. Sipple if they had an opinion on the invalidity of the patent.

[00:27:59] Speaker 00:
And both of them made it clear that they didn't know anything about patents and all that stuff, and that they were just testifying from their own experience.

[00:28:08] Speaker 00:
And that's in the record for both of those witnesses.

[00:28:11] Speaker 00:
And the jury heard that.

[00:28:14] Speaker 00:
Also, because the plaintiff challenged the judge's finding of obviousness, basically accused Judge Walker of rubber-stamping the jury verdict, Judge Walker did his own independent analysis, and he laid it out in his opinion.

[00:28:30] Speaker 00:
And he was able to show that there was substantial evidence just based on Mr. Fleshman's testimony.

[00:28:35] Speaker 04:
That's a denial of Jamal.

[00:28:39] Speaker 04:
I think you kind of conflate that in the brief

[00:28:42] Speaker 04:
a bench trial where he made his own findings.

[00:28:45] Speaker 04:
There's a difference between denying Jamal and making your own findings.

[00:28:51] Speaker 00:
True, but what he did show in that opinion was that there was substantial evidence based on witnesses other than

[00:28:58] Speaker 00:
Mr. Peebs.

[00:28:59] Speaker 04:
Yes, but if there's only four witnesses in the entire case, this is a streamlined patent case, which, by the way, I applaud you both for.

[00:29:09] Speaker 04:
But when there's only four witnesses and one of them who's a layperson, not an expert, gets on the stand and says over and over that he thinks it would have been obvious, that's really potentially prejudicial, very potentially prejudicial.

[00:29:26] Speaker 04:
And actually, I don't see that it has any relevance.

[00:29:29] Speaker 04:
given that he's not an expert.

[00:29:31] Speaker 04:
And so I'm not sure that the fact that there is substantial evidence for a finding in light of potentially high degree of prejudice is OK.

[00:29:47] Speaker 00:
I think the jury can make a distinction between

[00:29:50] Speaker 00:
a person saying this was obvious for me to try versus saying I think as a matter of law these patents are invalid for obviousness.

[00:30:00] Speaker 00:
These experts were testifying from their own experience and I don't think the jury had any difficulty figuring that out.

[00:30:06] Speaker 03:
The other person is fully instructed on the law as well as of greatest concern in all obviousness cases is the effect of hindsight and as to

[00:30:19] Speaker 03:
how to put yourself in the mind when you didn't know what was going to work or not work, as opposed to what looks like a simple change.

[00:30:32] Speaker 03:
And this, of course, is the problem with a lay witness and where the jury, neither the witness nor the jury,

[00:30:43] Speaker 03:
is told the intricacies of patent law.

[00:30:47] Speaker 03:
We know it's not simple law.

[00:30:49] Speaker 03:
We know that it's very hard to somehow control the considerations so that it's predictable to some innovator who has an idea, wants to make a change, has an investment problem.

[00:31:09] Speaker 03:
and needs to think about, suppose it works.

[00:31:12] Speaker 03:
Does that mean that everyone's going to be able to copy it?

[00:31:15] Speaker 03:
So the friendly patent lawyer says, no, we'll patent it.

[00:31:19] Speaker 03:
And here we are.

[00:31:21] Speaker 00:
Here we are.

[00:31:22] Speaker 00:
Well, I see my time has gone.

[00:31:24] Speaker 04:
Can I ask one final question?

[00:31:25] Speaker 04:
Right before Judge Newman just spoke, you said, quote, these experts were testifying from their own experience.

[00:31:34] Speaker 04:
That's exactly the problem.

[00:31:36] Speaker 00:
I met these witnesses.

[00:31:37] Speaker 04:
See, that's exactly the problem.

[00:31:39] Speaker 04:
Experts could have offered this testimony, but you just referred to Mr. Peebs as an expert, and that's what he wasn't.

[00:31:46] Speaker 00:
I meant the way this is, but.

[00:31:48] Speaker 04:
Yeah.

[00:31:50] Speaker 04:
Got it.

[00:31:53] Speaker 00:
So it sounds like this case is going to turn on the instructions, which I am not helpful to enlighten the court on, so I have no further

[00:32:03] Speaker 03:
trying to figure it out, trying to get it right.

[00:32:07] Speaker 03:
Thank you.

[00:32:08] Speaker 00:
Thank you.

[00:32:09] Speaker 03:
OK, you have your rebuttal time.

[00:32:15] Speaker 01:
Very briefly, just because the court's curious about it, and we will have the actual instruction, but there is a summary.

[00:32:31] Speaker 01:
I'm struggling with it.

[00:32:32] Speaker 01:
my papers together here.

[00:32:39] Speaker 01:
Page 101 and 102 of the appendix, Judge Walker summarizes what he was going to tell the jury.

[00:32:51] Speaker 01:
He says, I am happy to give an instruction to the jury that it's their decision, and their decision only, to determine something as obvious.

[00:32:59] Speaker 01:
Obvious is a term of art as they are going to apply it, and they need to apply the definition as this court instructs them, and they should not conflate what somebody else says is obvious to them with their ultimate task.

[00:33:11] Speaker 01:
I'm happy to give that qualification.

[00:33:14] Speaker 01:
But I don't think that just because somebody employs that word, it is a violation of the case law that you cited or inconsistent with the 701 opinion.

[00:33:23] Speaker 01:
And we would differ with that, even with the instruction that you'll see.

[00:33:29] Speaker 01:
Under Rule 701, I believe the basic idea of Rule 701 is if a lay opinion can be helpful to the jury, it could be admissible.

[00:33:42] Speaker 01:
The example being, how fast was that car going?

[00:33:46] Speaker 01:
But when you get to ultimate issues like obviousness or negligence or things like that, then you're into the territory of prejudicial and confusing the jury.

[00:33:59] Speaker 01:
And I think that's the territory we veered into here.

[00:34:03] Speaker 01:
Very briefly on the other issues, the issue with respect to the

[00:34:12] Speaker 01:
YouTube video isn't whether it was authenticated.

[00:34:14] Speaker 01:
Nobody disputes it was authenticated.

[00:34:17] Speaker 01:
The question is whether someone skilled in the art would have been motivated to go look at it in 2012.

[00:34:22] Speaker 01:
And the only evidence that is pertinent to that, and Mr. Hussman alluded to it, is that Mr. Cornett did say, and I'll find the page number,

[00:34:57] Speaker 01:
Well, I don't have the page number.

[00:34:59] Speaker 01:
I can't find it.

[00:35:00] Speaker 01:
But Mr. Cornett did say he might have saw the videos.

[00:35:05] Speaker 01:
And I want to emphasize that that was plural.

[00:35:07] Speaker 01:
And the reason I emphasize that was plural is because Mr. Peeps actually posted several videos, only one of which is pertinent to this case.

[00:35:16] Speaker 01:
the other two of which were posted well after the priority date, 2013 and 2014.

[00:35:23] Speaker 01:
And so Mr. Cornett's testimony that he saw the video in question is at best vague and equivocal, and that's the only... But he doesn't have to see the video in question.

[00:35:34] Speaker 04:
Because the only issue you're arguing about is whether people would look at these types of videos at all.

[00:35:40] Speaker 04:
And his testimony is sufficient for that purpose, whether he saw this exactly.

[00:35:44] Speaker 01:
I think it's on the very, very borderline, Your Honor.

[00:35:47] Speaker 04:
That's a jury question, not a question of fact.

[00:35:50] Speaker 01:
It's sufficient.

[00:35:51] Speaker 01:
That's the question.

[00:35:52] Speaker 01:
And then finally, you had a question about why are we here?

[00:36:00] Speaker 01:
I want to make clear that as a result of these judgments, my client's patents have been invalidated.

[00:36:07] Speaker 01:
So it's not just Mr. Huntsman's client that's the problem here.

[00:36:11] Speaker 01:
There may be other people all over the world doing this.

[00:36:14] Speaker 01:
And my client now is in a position not to be able to stop it.

[00:36:18] Speaker 01:
Their patents have been invalidated.

[00:36:20] Speaker 03:
When does it expire?

[00:36:21] Speaker 01:
Say again?

[00:36:22] Speaker 03:
When does the patent expire?

[00:36:24] Speaker 01:
Oh, I don't know that.

[00:36:25] Speaker 01:
I mean, 20 years.

[00:36:28] Speaker 03:
It was 20 years from the first date.

[00:36:30] Speaker 01:
Yes.

[00:36:30] Speaker 03:
But that was quite a while ago, right?

[00:36:33] Speaker 01:
2012.

[00:36:33] Speaker 03:
2012 was the priority?

[00:36:37] Speaker 01:
Yes.

[00:36:39] Speaker 01:
So they're still good 10 years ago here.

[00:36:42] Speaker 01:
So anyway, I just wanted to briefly address that.

[00:36:44] Speaker 01:
My time is up.

[00:36:45] Speaker 01:
We would request that you reverse the judgment and enter a judgment as a matter of law that the obvious offense was insufficient.

[00:36:54] Speaker 01:
Thank you.

[00:36:55] Speaker 03:
Thank you.

[00:36:56] Speaker 03:
Thank you both.

[00:36:57] Speaker 03:
The case is taken under submission.

[00:37:00] Speaker 03:
And that concludes our arguments for this morning.