[00:00:00] Speaker 03: 182145 John Steck International versus JF Microtechnology. [00:00:37] Speaker 03: Let's just wait till everybody gets settled. [00:00:40] Speaker 03: I think we're ready. [00:00:41] Speaker 03: Whenever you are, sir. [00:00:47] Speaker 00: Good morning, Angelisa Court. [00:00:49] Speaker 00: I'm Frederick Whitmer. [00:00:50] Speaker 00: I represent Kilpatrick Townsend and Stockton, JF Micro Technology, SDN, VHD. [00:01:00] Speaker 00: The fundamental error of the judgment of infringement in this case is that John's tech conflated [00:01:07] Speaker 00: literal infringement with infringement by the doctrine of equivalence in that it argued that making the same structure that constitutes the means for biasing the contact against the housing wall, the elastomer, that that is simultaneously the housing wall itself. [00:01:33] Speaker 00: In other words, having failed correctly, I think, [00:01:37] Speaker 00: in a literal infringement analysis, that same analysis was used to say it is doctrine of equivalence. [00:01:46] Speaker 00: So that what we have here is a patent, a very short patent with a very short specification that discloses only the contact with the housing wall that has three elements, a housing, an elastomer, [00:02:08] Speaker 00: and a contact, those three elements have been turned into a doctrine of equivalence by turning the elastomer, which was defined as the means for biasing the contact into contact with the housing wall, engagement with the housing wall, into an engagement by equivalence with that same elastomer. [00:02:31] Speaker 03: Why isn't that a question of fact for a jury? [00:02:36] Speaker 00: I don't think it is a question of fact, Your Honor. [00:02:38] Speaker 00: The reason is that, as we have explained in our brief, in our several briefs, that it eliminates by virtue of turning the elastomer into both the means for biasing the contact into engagement at the housing wall and the equivalent of the housing wall, you are vitiating the need for the required housing. [00:03:05] Speaker 00: The housing is a separately specified element of claim one and all through the other claims. [00:03:12] Speaker 00: So it can't be, it seems to me, a question that the jury can say as a fact, we don't need the housing wall because you have the elastomer. [00:03:21] Speaker 00: The elastomer was the means for biasing the contact for direct engagement with the housing wall. [00:03:29] Speaker 00: And the only description in the [00:03:33] Speaker 00: in the patent with respect to embodiments is for an engagement by the contact with the housing wall. [00:03:42] Speaker 00: So there's no evidence to support the fact that the housing wall is not necessary. [00:03:49] Speaker 00: It's made unnecessary by the theory that was used here. [00:03:54] Speaker 03: I guess I'm not sure I really understand what you're saying. [00:03:58] Speaker 03: We've got a function way result test here. [00:04:01] Speaker 03: Yes. [00:04:01] Speaker 03: And seems to me maybe the question is the engagement. [00:04:06] Speaker 03: OK, so you've got a tail end of the contact in engagement with the wall of the housing. [00:04:12] Speaker 03: And with respect to the infringing device, the argument with respect to way, which I guess is the hardest one to get through, is that the engagement is indirect. [00:04:23] Speaker 03: So there is engagement with the housing wall. [00:04:27] Speaker 03: It's just done in a different way. [00:04:29] Speaker 03: Not directly. [00:04:31] Speaker 03: It's done indirectly, which is essentially an equivalent way of doing it. [00:04:38] Speaker 03: So that's the theory, right? [00:04:40] Speaker 03: And just going back, just to finish my question, to add what Judge Newman pointed out, is why wasn't the jury allowed, permitted, to [00:04:51] Speaker 03: do that kind of fact-finding and reach that conclusion? [00:04:54] Speaker 00: I'm sorry, I didn't mean to interrupt. [00:04:56] Speaker 00: The theory fails as a matter of law, it seems to me. [00:04:59] Speaker 00: And the reason for that is because by simultaneously saying the elastomer, which was defined as the means for biasing the contact for engagement into the housing rule, and making that equivalent to the housing rule. [00:05:15] Speaker 00: And recall that the district court incorrectly found that the patent required direct engagement [00:05:21] Speaker 00: So indirect engagement was excluded from the claim construction, which is not challenged in this appeal. [00:05:30] Speaker 00: That by doing that, what the theory accomplishes is to erase a meaningful structural and functional limitation of the claim on which the public is entitled to rely on in avoiding infringement. [00:05:47] Speaker 00: That's a direct citation. [00:05:48] Speaker 00: from this court in, I think it's called Canopco. [00:05:52] Speaker 00: I've never heard it said out loud. [00:05:54] Speaker 00: So it's one of the cases we've cited several times over. [00:05:58] Speaker 03: Well, except our case law allows for the doctrine of equivalence. [00:06:02] Speaker 00: Absolutely. [00:06:02] Speaker 03: And that is defined as function, way, result. [00:06:06] Speaker 03: So why wasn't the jury entitled to accept the testimony of the witnesses that essentially, whether it's this elastomer or not, [00:06:18] Speaker 03: that it essentially operates in the same way, whether you're using this intervening force, which itself then rests on the outer housing. [00:06:28] Speaker 03: So it's less direct than what the patent explicitly claims. [00:06:32] Speaker 00: Because the function of the accused device was to encourage sliding. [00:06:37] Speaker 00: There is no testimony that rebuts the testimony from our witnesses at trial. [00:06:44] Speaker 00: And recall, I wasn't trial counsel. [00:06:47] Speaker 00: I wasn't at the trial. [00:06:48] Speaker 00: But there was no, in reading the testimony of the record, there's no testimony that is other than the design intention of the accused device was to encourage sliding. [00:07:03] Speaker 00: And the reason it encouraged sliding was to achieve a result of reducing what is called the wipe at the top and to avoid direct contact with the housing wall. [00:07:16] Speaker 00: so that you preserve the integrity of the housing wall, so that we know, conversely, what the intention is with respect to the pet. [00:07:27] Speaker 03: Wasn't there a lot of evidence that it substantially decreases the amount of sliding? [00:07:34] Speaker 03: I mean, there was a lot of testimony about that, and the district court concluded that the jury [00:07:39] Speaker 03: Likely, or almost obviously accepted that that there was a substantial diminishment of the sliding and the Q device, right? [00:07:47] Speaker 00: There's a different the that's what the district court said. [00:07:51] Speaker 03: That was the testimony before the jury. [00:07:55] Speaker 03: There might have been contrary testimony. [00:07:58] Speaker 03: I don't recall at the moment. [00:07:59] Speaker 03: But in any event, why was the jury not allowed to credit that testimony and reach a conclusion that the accused device really does limit the amount of sliding? [00:08:12] Speaker 00: Let me split this up into pieces. [00:08:14] Speaker 00: Because although it was one question, I think there are several parts to it. [00:08:20] Speaker 00: Because the infringement question [00:08:21] Speaker 00: if I can use it that way, is different than the argument I'm making with respect to the elastomer being both the equivalent of the housing wall under their theory and the means for biasing. [00:08:35] Speaker 00: The infringement argument that was made was based not upon, there was no testimony from any of the witnesses that said, okay, I've looked at the claim, I've read what the claim construction is, and in my judgment, for X, Y, Z reasons, [00:08:50] Speaker 00: it is, in fact, a substantial reduction of sliding. [00:08:55] Speaker 00: Rather, what was asked, and we've cited this in our main brief, I think it's very early on, page 17 or thereabouts, that there was an analysis that said, well, what would an ordinary person in skill of the art do to determine whether or not there was substantial reduction in sliding? [00:09:18] Speaker 00: And the testimony was, well, I looked at the prior art, and it was less than the prior art. [00:09:24] Speaker 00: And because it was less than the prior art, that substantially reduces sliding. [00:09:28] Speaker 02: Well, but if you have substantial reduction, and you want to talk about whether there's a substantial reduction or not, you need to know vis-a-vis what. [00:09:38] Speaker 02: What's the starting point? [00:09:40] Speaker 02: And isn't it reasonable to say, well, substantial reduction is, or substantial elimination, I guess, is the word used in the claim. [00:09:48] Speaker 02: Is vis-a-vis what the prior art was? [00:09:50] Speaker 02: That seems to me at least a pretty good starting point, isn't it? [00:09:55] Speaker 00: I think it's a starting point, because you have to look at something. [00:09:58] Speaker 00: You have to understand what it was. [00:10:01] Speaker 00: But the testimony wasn't just that. [00:10:03] Speaker 00: Say, well, if it's less than 191, I think was the number. [00:10:08] Speaker 00: If it's less than 191, it's a substantial reduction. [00:10:12] Speaker 02: Well, it's considerably less than 191. [00:10:14] Speaker 02: I think it went down to 24 microns, right? [00:10:17] Speaker 00: Correct. [00:10:17] Speaker 00: But that's 24 times what the patented device, what the commercial embodiment of the patented device does. [00:10:28] Speaker 00: And I think it was misleading in a sense to talk about the width of a human hair and what this distance is, because we're talking about very small differences in terms of spacing. [00:10:44] Speaker 00: A micron, I'm told of 60 microns as a human hair, [00:10:48] Speaker 00: Well, one micron to 24 microns, we're 24 times less reduction than what they have done. [00:10:56] Speaker 03: Well, it's interesting because I think, based on what I could glean from the record, this is exactly the debate that the experts had before the jury. [00:11:04] Speaker 03: And what the district court judge said on Jamal is, yeah, you had a competing expert that tried to diminish the effectiveness of your numbers, gave some alternative numbers. [00:11:14] Speaker 03: But I don't think it's extreme for the district court then to have said, I have to defer. [00:11:21] Speaker 03: The jury was allowed to credit what one expert said. [00:11:24] Speaker 03: Even if we said here, we're not a jury, even if we agree with what you're telling us about these numbers, that's completely irrelevant to what we're doing here, right? [00:11:33] Speaker 03: The jury could credit one expert over another. [00:11:37] Speaker 03: Your expert complained about the way they were calculating this stuff. [00:11:41] Speaker 03: The jury heard all of that and reached a conclusion. [00:11:43] Speaker 03: This is classic, right? [00:11:45] Speaker 00: I don't think it is classic, because I'm not criticizing anybody's method. [00:11:49] Speaker 00: I'm not saying they're wrong about 24. [00:11:51] Speaker 00: It was really 73. [00:11:53] Speaker 00: I'm not here to say that, because that's not in the record, and that wasn't the argument before. [00:11:58] Speaker 00: My argument to Judge Bryson, essentially, is you can't say to the jury, well, [00:12:02] Speaker 00: it was substantially less because it was less than the prior art. [00:12:05] Speaker 00: That opens, if that's the standard. [00:12:08] Speaker 02: Why not? [00:12:09] Speaker 02: Why isn't the prior art a pretty good, if you're talking about substantially reducing, it's reducing from something. [00:12:16] Speaker 02: So what would you pick if you wouldn't pick the prior art? [00:12:19] Speaker 02: What do you think is a better measure from reducing from what? [00:12:22] Speaker 00: Well, your honor, [00:12:24] Speaker 00: respectfully, you used the term starting point earlier. [00:12:27] Speaker 00: And I agree with you. [00:12:29] Speaker 00: You have to look at something. [00:12:29] Speaker 02: I think starting point, I'm not sure it isn't a pretty good stopping point, too. [00:12:34] Speaker 02: Because what would be your reference point? [00:12:39] Speaker 00: Well, I'm certainly not a posita. [00:12:42] Speaker 02: I understand that. [00:12:43] Speaker 02: But presumably, you've given some thought in this case to what would have been the right thing for the 95%. [00:12:49] Speaker 00: And I'll tell you why. [00:12:51] Speaker 02: OK. [00:12:52] Speaker 02: 95% from, from 191. [00:12:56] Speaker 00: Presumably, yes. [00:12:57] Speaker 02: Instead of the 87% that was, was shown in the evidence? [00:13:00] Speaker 00: Well, whatever, whatever the percentages were. [00:13:02] Speaker 00: But it would have to think at least 95 or close. [00:13:07] Speaker 00: And the reason I say that is because the district court found, I think correctly, that the intention of the patent was to reduce the sliding as much as possible. [00:13:22] Speaker 02: Okay. [00:13:22] Speaker 02: But you're still, you're still starting when you say 95%. [00:13:26] Speaker 02: I take it. [00:13:27] Speaker 02: You're still starting with the prior art 191, right? [00:13:29] Speaker 00: I have no difficulty starting because as your honor said, it's going to be, it's going to be reduced from the 191. [00:13:37] Speaker 02: And the only question is how much is substantial, right? [00:13:41] Speaker 02: And you're saying it's a matter of a law, substantial has to have been 95% reduction? [00:13:46] Speaker 00: Well, I think it needs some reference. [00:13:50] Speaker 00: When you're talking about there's lots of laws the court is obviously aware of when you have subjective standards of substantially this. [00:13:57] Speaker 00: And so you have to have some kind of reference. [00:13:59] Speaker 00: And perhaps the reference, at least as a starting point, is what the prior art said. [00:14:05] Speaker 00: That may be true. [00:14:08] Speaker 00: But it seems to me, and I'll go back to what I think is fundamentally the more important part of the argument, is that the literal infringement argument that converted itself into a doctrine of equivalence argument, I think vitiates the need for the housing wall, which is, in fact, a meaningful structural and functional limitation. [00:14:30] Speaker 00: And how do we know that? [00:14:31] Speaker 00: Because the patent tells us that. [00:14:34] Speaker 00: I think it's column three. [00:14:37] Speaker 00: lines 60 through 66 or thereabouts, that says that it was designed to have the contact make an engagement with the housing wall. [00:14:50] Speaker 00: It doesn't say housing wall or something else like it. [00:14:54] Speaker 00: It says with the housing wall to reduce sliding. [00:14:57] Speaker 00: I think I'm into my rebuttal time. [00:14:59] Speaker 03: Yes, you are. [00:15:00] Speaker 03: OK. [00:15:00] Speaker 00: Why don't we hear from the other side and we'll restore some of that. [00:15:06] Speaker 00: Is this your wall? [00:15:07] Speaker 00: I'm going to clean up the podium from someone else. [00:15:11] Speaker 03: I didn't know what it was. [00:15:14] Speaker 03: I don't know what it is, but it wasn't mine. [00:15:18] Speaker 01: Thank you. [00:15:21] Speaker 01: May it please the court? [00:15:23] Speaker 01: JFM raises two issues on appeal. [00:15:25] Speaker 01: Both of those issues concern whether there is substantial evidence supporting the jury's verdict of infringement. [00:15:33] Speaker 01: Johnstech raises a third purely legal issue [00:15:36] Speaker 01: Concerning interpretation of the actual notice statute section 287 a I'm going to start with Whether sigma uses an equivalent structure as the 866 patent This is not a question of vitiation. [00:15:51] Speaker 01: This is a question of substantial evidence the jury was presented first with expert testimony from engineer Mike Andres Mr.. Andres testified [00:16:04] Speaker 01: It's the appendix 2795 to 2797. [00:16:06] Speaker 01: The eczigma product uses a large rear elastomer of 70A [00:16:18] Speaker 01: Which is the hardest, close-to-fire one. [00:16:20] Speaker 03: I'm not sure. [00:16:21] Speaker 03: I read your briefs. [00:16:25] Speaker 03: On this point, which is either function, way, result, the way piece of it, or the initiation argument, either one, the district court, there's a claim construction on the word engagement. [00:16:36] Speaker 03: And the district court construed the term to require direct engagement between the contact and the housing wall. [00:16:43] Speaker 03: The argument would be under DOE and the vitiation doctrine, as we understand it, why isn't there a vitiation argument either with respect to the claim requires direct engagement, and there was no direct engagement here given. [00:17:04] Speaker 03: At best, you could call it indirect engagement. [00:17:07] Speaker 03: And further, kind of an alternate argument, which is they require whatever engagement it is, it has to be with the housing wall, between the contact and the housing wall. [00:17:18] Speaker 03: And here, in the equivalent doctrine, it can't vitiate that in a way that eliminates that entirely, because there's no contact here between the contact and the housing wall. [00:17:33] Speaker 03: To me, that's the issue. [00:17:35] Speaker 03: And I think that's partly what your friend was arguing to us. [00:17:39] Speaker 01: Yes. [00:17:39] Speaker 01: And you framed it appropriately. [00:17:41] Speaker 01: And so the issue is why indirect engagement satisfies the doctrine of equivalence. [00:17:47] Speaker 01: In this case, it's not a vitiation of the claim term. [00:17:50] Speaker 01: It's because the invention requires engagement to cause the contact to roll forward. [00:17:56] Speaker 01: And while the court did construe [00:17:59] Speaker 01: at claim construction required that there be direct engagement. [00:18:03] Speaker 01: That was because only direct engagement was shown in the patent, and it's a means plus function claim. [00:18:10] Speaker 01: We're proving equivalency not by showing disengagement or separation between the elastomer and the housing. [00:18:19] Speaker 01: We're showing that the elastomer, the rear elastomer, is an intermediary with the housing. [00:18:24] Speaker 01: So in effect, it is engaging housing. [00:18:28] Speaker 02: Diagrams and depictions of the accused device left me feeling that I didn't have a real good idea of exactly what it how it functions and what it looks like but How in the accused device there's the elastomer between the foot of the contact and the wall Are there other elastomers in the same structure there are and that's an important distinction and and are they [00:18:57] Speaker 02: Do they have the same composition as the elastomer that is between the wall and the foot? [00:19:04] Speaker 02: Are they softer or harder? [00:19:07] Speaker 02: I understand the elastomer between the foot and the wall is very hard, but are the others equally hard or is the record clear on that? [00:19:16] Speaker 01: I think it was clear that both the elastomers and the zygmunt [00:19:19] Speaker 01: product are made of the same composition of material. [00:19:23] Speaker 01: And it's important that the rear elastomer, however, is compressed and tightly placed within that housing. [00:19:30] Speaker 01: And it's confined within the housing and pre-compressed. [00:19:35] Speaker 01: Mike Andre's testified to this. [00:19:37] Speaker 01: And that makes the rear elastomer stiffer and acts and functions like the housing wall. [00:19:43] Speaker 01: And that's what's also important is the judge's claim construction said that the structure required [00:19:49] Speaker 01: required one or more elastomers. [00:19:52] Speaker 01: So it wasn't required to have two elastomers in order to practice the clean. [00:19:57] Speaker 01: And as you heard in the argument by my opponent, it has said that we're arguing that the same structure as another element is being used to prove equivalency. [00:20:09] Speaker 01: And that's not exactly correct because we don't have to, the claim can be satisfied by one elastomer. [00:20:15] Speaker 01: That rear elastomer could be considered. [00:20:17] Speaker 01: Now, I don't think it's inappropriate to use another element to show a separate structure. [00:20:24] Speaker 01: But here, that rear elastomer could be considered merely an intermediary and does not need to be considered the elastomer to prove the requirement of [00:20:35] Speaker 01: one or more elastomers, because there are two elastomers in the device. [00:20:40] Speaker 02: So your argument really, I gather, is that it doesn't matter that it happens to be an elastomer that's between the wall and the foot of the contact. [00:20:48] Speaker 02: It could be a thin piece of metal that you've inserted in there so that it's indirect contact, but it still functions exactly the same as if the foot were contacting the wall. [00:20:59] Speaker 02: That's your argument. [00:21:00] Speaker 01: I think that's precisely correct. [00:21:02] Speaker 02: And your opposing counsel would say, well, but the elastomer [00:21:05] Speaker 02: is perhaps hard, but it's not so hard that it doesn't have some give to it. [00:21:11] Speaker 02: So it's not exactly the same as a wall that is solid that's biasing with full force against the foot of the contact. [00:21:20] Speaker 01: They would argue otherwise, and they certainly have argued otherwise, but the jury heard that and they found to the contrary. [00:21:26] Speaker 01: And it's important to notice that in JFM's blue brief on page 25, they state something to the effect of this is not a polyurethane. [00:21:34] Speaker 01: or a protracted coating, which they suggest would, as I understood it, would satisfy the doctrinal equivalence. [00:21:41] Speaker 01: So how much, whether you go from a thin coating of a polyurethane or some intermediary, that's a decision for the jury to evaluate based on the expert testimony that they heard on that function way result, competing testimony, and they decided in favor of Johnstek. [00:21:57] Speaker 01: It's based on substantial evidence. [00:21:59] Speaker 01: The evidence wasn't just based on the expert testimony. [00:22:03] Speaker 01: The other evidence was, of course, the patent by JFM that says that the rear elastomer is used to protect the load board, as well as their advertisement, the JFM advertisement, the trial exhibit 35, which advertises the counter force in the Zygma to reduce load board wear. [00:22:20] Speaker 01: You've heard from the other side that, well, they've designed the product to encourage sliding. [00:22:26] Speaker 01: It's pretty clear from Warner Jenkins that, as it says, quote, the intent plays no role in the application of the doctrine of equivalence. [00:22:34] Speaker 01: That's page 36. [00:22:35] Speaker 01: It doesn't matter what they intended. [00:22:37] Speaker 01: We disagree with their intent. [00:22:39] Speaker 01: And we showed it and contradicted them on cross-examination as to what their intent was. [00:22:43] Speaker 01: But it doesn't matter because their product also substantially eliminates slacking. [00:22:49] Speaker 03: Is there other, just as a technical, just sort of housekeeping, there are other issues remain pending before the district court with regard to this case? [00:22:59] Speaker 01: No, there are not. [00:23:00] Speaker 03: Attorney's fees or anything dealing with the judgment? [00:23:03] Speaker 03: No? [00:23:03] Speaker 01: The judge resolved all the issues and there wasn't a, he denied a reward of attorney's fees, he enhanced damages for 25% based on sales made after the verdict, and he entered a permanent injunction. [00:23:14] Speaker 01: So it's all been resolved. [00:23:16] Speaker 02: Which leads us to the question of whether you get more. [00:23:21] Speaker 01: Correct. [00:23:22] Speaker 01: And I was going to transition to substantial elimination of sliding, but why don't we just move on to the issue of the cross-appeal and the issue of the actual notice. [00:23:32] Speaker 02: I find this meeting, of which there was some testimony, to be sort of befuddling. [00:23:40] Speaker 02: It's hard to believe that there was a meeting between the parties [00:23:45] Speaker 02: the subject or at least one principal part of the subject of which was this Allegation of infringement without anybody actually producing or referencing a particular patent Apparently at least so far as the record shows that's true. [00:24:03] Speaker 02: That's what happened. [00:24:04] Speaker 02: We can't dispute that your honor the testimony so so we as Bizarre as it seems that seems to be the facts on the [00:24:15] Speaker 02: on the ground as we have them. [00:24:17] Speaker 02: Now, with that so, why isn't a case like SRI dispositive against you on this? [00:24:26] Speaker 02: SRI saying that talking about the requirement of notice that requires the recipient be informed of the identity of the patent and the activity that is believed to be an infringement. [00:24:40] Speaker 02: And I don't see that you are informed of the identity of the patent. [00:24:44] Speaker 02: So the facts of SRI are different, because in that case, as if my memory serves me, there was a letter that dealt... Well, yes, but this is the... I'm quoting from the section of the opinion in which the court states the standard to be applied in this setting. [00:25:00] Speaker 02: And there, the court is saying an identity of the patent. [00:25:05] Speaker 02: It seems to me that it's as clear as could be that the identity of the patent was not disclosed in this case. [00:25:12] Speaker 01: The identity of the patent, we submit that we have not offered evidence that it was identified. [00:25:17] Speaker 02: So why, under SRI, are you not done for? [00:25:21] Speaker 01: Because the statute doesn't require identification of a specific patent, and there was particular information identified in the meeting that's shown by the declaration of Mr. Adiran. [00:25:35] Speaker 01: It was submitted in opposition to summary judgment. [00:25:38] Speaker 01: that he explained that they believed the Sigma product, so they identified the accused product, and it violated, quote, Johnstech's patent rights on the roll technology, and then they explained that Sigma's use of two elastomers and an S-shaped contact rolled across the load board. [00:25:55] Speaker 01: So they provided it. [00:25:56] Speaker 02: OK, but Johnstech has, I gather, 250-odd patents. [00:26:01] Speaker 01: Yes. [00:26:01] Speaker 02: So if you go in, you say, you've violated our patents. [00:26:05] Speaker 02: Go fetch. [00:26:06] Speaker 02: Go look through our 250 patents and see if you can find one that infringes. [00:26:13] Speaker 02: That's not the purpose of the notice statute, is it? [00:26:15] Speaker 02: To put somebody to that kind of task? [00:26:18] Speaker 01: Well, I'm not clear. [00:26:21] Speaker 01: The purpose of the notice statute from the case law says that it's to protect innocent infringers. [00:26:27] Speaker 01: who are unaware of a patent. [00:26:29] Speaker 02: But in the facts of this case... And give those, there's putatively innocent offenders, infringers, an opportunity to test the proposition that they infringe. [00:26:40] Speaker 02: In other words, if somebody comes in and says, you infringe, presumably the person is entitled to notice sufficient to be able to say, oh yeah, he's right, I do, or I don't think I do. [00:26:52] Speaker 02: But I don't see how with a company that has 250 [00:26:55] Speaker 02: patents coming in and saying, you infringe our patent rights. [00:26:58] Speaker 02: I don't see how that does that. [00:27:00] Speaker 01: Congress could have written a statute that allowed strict liability and didn't require notice if it wanted to. [00:27:05] Speaker 01: I believe that would be constitutional. [00:27:08] Speaker 01: In this case, it wrote the statute that it did, and it specifically said that the number, patent number, must be required and stated for marking. [00:27:16] Speaker 01: And it didn't state, with respect to actual notice, just as we've all seen, proof that the infringer was notified of the infringement. [00:27:24] Speaker 01: and continue to infringe thereafter. [00:27:27] Speaker 03: Well, the question is construing notified of the infringement. [00:27:31] Speaker 03: Correct. [00:27:32] Speaker 03: I can just come up to you and say, you're infringing one of my 4 million patents. [00:27:36] Speaker 03: That that's really what was contemplated in this language. [00:27:40] Speaker 03: Don't you think it's a fair interpretation of this language to say notified of the infringement necessarily means that you identify the product and the patent claim which is being infringed? [00:27:54] Speaker 01: I submit that it's a fair reading. [00:27:55] Speaker 01: It's a fair reading that the activity of infringement has to be identified specifically, but it doesn't require the level of detail as the marking statute does for the specific patent number. [00:28:06] Speaker 01: And why would Congress do that? [00:28:08] Speaker 01: For exactly in a situation like this, where a company is using lay people, they don't know specifically what the specific issue is, but they provided the technology against a direct competitor, [00:28:22] Speaker 01: who has knowledge of our product, who, the day earlier, has been his own note safe. [00:28:26] Speaker 03: If these are lay people that don't have really any grasp of the patent and the claims and the things at issue, then why is that a legit claim of infringement? [00:28:37] Speaker 03: I mean, we're assuming that if somebody makes a claim of infringement, it's a reasoned, knowledgeable claim. [00:28:44] Speaker 03: So those people need to have that to make the charge of infringement, right? [00:28:51] Speaker 01: They don't need to provide notice. [00:28:53] Speaker 01: The marking statute for good reason has to require a specific patent number because you're not having an active person there present. [00:29:00] Speaker 01: In a situation where you have a person telling you, you specifically in that product, infringe our technology related to our product, as the Seco District Court has said, you don't need the level of detail. [00:29:12] Speaker 01: If they have additional problems with what information they've received, they could follow up. [00:29:17] Speaker 01: They could demand [00:29:18] Speaker 03: But is your answer because they should be able to surmise what patent claims you mean? [00:29:25] Speaker 03: Or is it because that is irrelevant? [00:29:28] Speaker 03: Well, how can they assess whether or not they agree or disagree or whatever unless they know what you're accusing them of? [00:29:35] Speaker 03: So are you saying that knowledge is irrelevant? [00:29:39] Speaker 03: Are you saying that it's their burden to go and search it out? [00:29:45] Speaker 01: I'm saying as long as you provide information about the activity that's the alleged infringement and you provide a level of detail of some level of detail that complies with the statute. [00:29:58] Speaker 02: Well, some level of detail. [00:29:59] Speaker 02: Now, what we're struggling with is what do you mean by that? [00:30:03] Speaker 02: Well, the patent, the statute. [00:30:05] Speaker 02: Suppose I can imagine a case in which somebody doesn't actually give the number of the patent. [00:30:12] Speaker 02: but identifies the patent with sufficient specificity that it satisfies the requirement of notice. [00:30:18] Speaker 02: For example, if you say the name of the patent is X, it is my only patent. [00:30:25] Speaker 02: You can find it easily. [00:30:26] Speaker 02: Just go on to Google patents and you'll find it by the name. [00:30:30] Speaker 02: That's probably sufficient. [00:30:32] Speaker 02: I don't know that actually having the 9,856,251 is required, but to say [00:30:40] Speaker 02: Particularly, again, a company that has 250 patents to say, you infringe one of our patents, but we're not going to tell you what it is. [00:30:48] Speaker 02: Is that notice? [00:30:49] Speaker 02: Does it sound like notice to me? [00:30:51] Speaker 01: Well, the record didn't quite put it to that degree. [00:30:55] Speaker 02: No, but I extracted the 250 from the record, and I extract from the record also, as you agreed, that they didn't identify the patent. [00:31:04] Speaker 02: So that kind of leaves us where I like it, doesn't it? [00:31:08] Speaker 01: No, I think what it leaves us is, as long as there's been a level of detail shown that is, quote, notified of the infringement and the level of detail here, that it satisfies the statute because it provided them some details about the technology at issue so that they could provide due and the recipients. [00:31:26] Speaker 03: What's the definition of infringement? [00:31:27] Speaker 03: Does it include that you're infringing something and there's something that's being infringed? [00:31:33] Speaker 01: Well, I mean, we've quoted the dictionary definition from the Black law dictionary. [00:31:40] Speaker 01: It's the act of the infringer. [00:31:43] Speaker 01: Their transgressions or trespasses on our intellectual property. [00:31:49] Speaker 03: On your claim, right. [00:31:51] Speaker 03: Correct. [00:31:51] Speaker 03: Right. [00:31:51] Speaker 03: That's part and parcel of it. [00:31:53] Speaker 03: that they are transgressing what you have claimed to have gotten exclusive rights to you. [00:32:00] Speaker 01: I don't think it, the statute doesn't put it to that level of precision like it does for the marching statute. [00:32:06] Speaker 03: We have restored two minutes. [00:32:17] Speaker 00: Thank you very much Robert. [00:32:20] Speaker 00: There's one additional point. [00:32:21] Speaker 00: SRI, I think, is the end of the story. [00:32:23] Speaker 00: But at appendix 426 through 428, you will see the testimony that we asked for the number, and they refused. [00:32:33] Speaker 00: And it seems remarkable to me that actual notice is, under their theory, less specific than the constructive notice that marking would have provided. [00:32:44] Speaker 00: Had they marked, they could have withheld any patent numbers they wanted in a meeting. [00:32:50] Speaker 00: I think it's a closed question. [00:32:52] Speaker 00: The district court resolved it correctly. [00:32:58] Speaker 00: Let's go back to what I think is the principal argument for why the jury verdict here should be reversed, and that is with respect to the vitiation. [00:33:10] Speaker 02: Let me get your reaction to the question that I asked you, opposing counsel. [00:33:17] Speaker 02: the accused device had done is, instead of the elastomer, had put a very thin piece of metal between the foot of the contact and the back wall. [00:33:27] Speaker 02: Would you agree that that would be a permissible doctor of equivalence? [00:33:31] Speaker 00: And where the contact touches that thin piece of metal? [00:33:35] Speaker 00: Yes, right. [00:33:35] Speaker 02: The contact touches the thin piece of metal, and the thin piece of metal is in direct contact with the back wall. [00:33:42] Speaker 00: My immediate reaction is, if that isn't an insubstantial addition [00:33:47] Speaker 00: for avoiding infringement, exactly the reason that the doctrine of equivalence was created by whatever court it was, whenever it was, a thousand years ago, then there isn't anyone. [00:33:59] Speaker 00: Because that was my example about doing polyurethane. [00:34:03] Speaker 00: Everything in this patent, including the figure. [00:34:06] Speaker 03: Just so I'm clear, so you're agreeing that that would come under DOE? [00:34:11] Speaker 00: I believe it would, yes. [00:34:12] Speaker 00: That's why I did the [00:34:15] Speaker 00: I did the qualification, I think Judge Bryson agreed with this, that it's the contacts that's touching the metal strip that's in front of the, absolutely. [00:34:24] Speaker 00: Absolutely. [00:34:24] Speaker 03: So what's the difference? [00:34:25] Speaker 03: Why is this case different? [00:34:27] Speaker 00: This case is different because, first, the patent figure shows direct engagement, I guess it's this way. [00:34:35] Speaker 00: The patent figure shows direct engagement of the contact with the housing. [00:34:40] Speaker 02: But that wouldn't be true in the example with the piece of metal. [00:34:43] Speaker 00: Correct. [00:34:45] Speaker 00: The piece of metal, I'm presuming, and it seems sensible, that the only reason it's put there is to avoid direct engagement with... Protect the back wall from where? [00:34:57] Speaker 00: I'm sure if I were retained to defend them, I'd come up with better reasons even than that. [00:35:01] Speaker 00: Probably you would. [00:35:03] Speaker 00: But in this argument today, I will say to you, I would find it a very difficult argument. [00:35:09] Speaker 00: And I would say to my client, I think we have to settle this case because that's not going to work. [00:35:13] Speaker 00: But in this case, [00:35:15] Speaker 00: It's a very substantial difference. [00:35:17] Speaker 00: And the difference is seen if I may cite you to, where's the patent? [00:35:25] Speaker 00: The invention in this patent, this is appendix 27. [00:35:31] Speaker 00: It's column three, beginning at line 55. [00:35:36] Speaker 00: This contactor system has been designed to prevent contact translational relative motion, paren sliding, close paren, [00:35:44] Speaker 00: against the load board 28. [00:35:47] Speaker 00: Sliding motion causes wear and tear on the load board pads, an undesirable characteristic. [00:35:52] Speaker 00: The sloped terminus of contact tail six in engagement with housing wall 15 is instrumental in preventing the contact 18 from sliding along the load board. [00:36:07] Speaker 00: The frontal elastomer also plays a role in helping achieve this and by forcing the contact 18 [00:36:13] Speaker 00: in a direction to remain seated against the wall of the housing 10. [00:36:19] Speaker 00: Now the elastomer in the sigma device is the means, excuse me, in the patent is the means for biasing the contact to the engagement with the housing wall. [00:36:36] Speaker 00: the analysis of these accused sigma device under their doctrine of equivalence, they are eliminating the need for the housing wall, which is a specifically called out separate element, because they say, well, and Mr. Cortland, Mr. Merrill here earlier said, it engages the housing wall because it touches through the elastomer. [00:37:04] Speaker 00: Elastomer becomes both the means for biasing and the equivalent of the housing wall, making the need for the required element of the housing wall unnecessary. [00:37:17] Speaker 00: It vitiates that requirement. [00:37:20] Speaker 00: For those reasons, I ask that the judgment below be reversed and remanded for the entry of judgment for JFM. [00:37:29] Speaker 00: Thank you very much for your time and attention. [00:37:30] Speaker 00: We thank both sides and the cases submitted.