[00:00:26] Speaker 02:
The next argued case is number 18-13-13, County Corporation Against SKC Colon PL, Incorporated.

[00:00:48] Speaker 02:
Mr. Jakes.

[00:00:50] Speaker 01:
Good morning.

[00:00:50] Speaker 01:
May it please the Court.

[00:00:52] Speaker 01:
I'd like to focus my attention this morning on the 961 patent.

[00:00:56] Speaker 01:
and start with the claim construction issue, which is central to this case.

[00:01:02] Speaker 01:
It's a straightforward claim construction issue.

[00:01:05] Speaker 01:
There's no dispute here about the term continuous process limiting the claims.

[00:01:11] Speaker 01:
The question is, what does continuous process mean?

[00:01:15] Speaker 01:
The proposed construction and the one adopted by the court was simply a film produced by a process that continuously casts, for example, by an endless belt or drum.

[00:01:26] Speaker 01:
And we say that's not enough, that if the specification, the prosecution history, the entire record also requires this step D1 as part of a continuous process to meet what is required in the patent.

[00:01:42] Speaker 03:
And you don't think that the fairly high standard, let's just call it the Thornor standard of disclaimer or redefinition has to be met here?

[00:01:53] Speaker 01:
No, Your Honor, I don't think so.

[00:01:56] Speaker 01:
because there are two different ways of looking at it.

[00:01:59] Speaker 01:
One is you look at the entire specification and you have to interpret the term continuous process.

[00:02:06] Speaker 03:
Just tell me why this is wrong.

[00:02:07] Speaker 03:
At least in my mind, I have been thinking of Thorner as applying in those situations where when you look at the word of the claim, you're not really seeing any meaningful wiggle room, any ambiguity, and nevertheless,

[00:02:26] Speaker 03:
that plain meaning can be overcome, whereas you don't need the special thorn or standard to make quite substantial use of the spec when there is, in fact, an uncertainty in the language itself.

[00:02:38] Speaker 03:
If that's right, where's the uncertainty in the language continuous?

[00:02:43] Speaker 01:
Sure.

[00:02:43] Speaker 01:
First of all, if we have to meet that higher standard, I think we can meet the standard of disclaimer here.

[00:02:50] Speaker 01:
But again, I don't think we need to.

[00:02:53] Speaker 01:
The term continuous process

[00:02:55] Speaker 01:
If you just look at the words by themselves out of the context of the patent, well, it could mean a lot of different things.

[00:03:02] Speaker 01:
So it has to be interpreted in the context of the patent.

[00:03:06] Speaker 01:
And the specification provides the meaning.

[00:03:09] Speaker 01:
If you just look at the naked words continuous process, it could mean pretty much anything.

[00:03:15] Speaker 01:
But we already have the court saying, well, it is limiting on the claims, and it means

[00:03:21] Speaker 01:
a process that continuously casts.

[00:03:24] Speaker 01:
Those words are not in the claim.

[00:03:25] Speaker 01:
For example, by an endless belt or a drum.

[00:03:28] Speaker 01:
Those words are not in the claim.

[00:03:29] Speaker 01:
So we're doing claim construction here and interpreting these words.

[00:03:33] Speaker 01:
And when you look at the entire specification, it requires D1 because otherwise the rest of the statements in the specification have no meaning.

[00:03:45] Speaker 03:
Repeatedly... Wait, why would that be so?

[00:03:49] Speaker 03:
couldn't at least, and the real heart of this is the column 20, column 21.

[00:03:54] Speaker 03:
Why couldn't that be an embodiment rather than fully exhaust the range of... Sure.

[00:04:03] Speaker 01:
Well, first of all, in places leading up to that, it uses the term the present invention and says this step is important to produce the film that's required.

[00:04:15] Speaker 01:
There are

[00:04:16] Speaker 01:
sprinkled in there a couple of times, the word preferably, or for example.

[00:04:21] Speaker 01:
And I think probably the statement you're looking at is where the specification says there can be variations.

[00:04:27] Speaker 01:
Well, you look at the examples.

[00:04:29] Speaker 01:
What are the variations?

[00:04:30] Speaker 01:
They are not in step B1.

[00:04:32] Speaker 01:
Every single example, all seven of them have step B1.

[00:04:37] Speaker 01:
That's not one of the variations.

[00:04:39] Speaker 01:
The variations are in temperature and some of the conditions.

[00:04:43] Speaker 01:
Specification says it's important

[00:04:47] Speaker 01:
to the present invention to have that step.

[00:04:49] Speaker 01:
So the variations and in the process, they don't relate to that particular step, everyone.

[00:04:56] Speaker 03:
And it's your view that, what's the language, comparative example?

[00:05:00] Speaker 01:
The comparative example, yes.

[00:05:01] Speaker 03:
That's not actually part of the invention.

[00:05:03] Speaker 03:
That is rather something you're comparing the invention to that.

[00:05:07] Speaker 01:
Yes, that's very clear from the specification where it says the results of comparative example one are unsatisfactory.

[00:05:15] Speaker 01:
It says it's unsatisfactory.

[00:05:16] Speaker 01:
It doesn't have the dimensional stability that's necessary for the invention.

[00:05:21] Speaker 01:
Now, there may be some of the properties that fall within the claims, but it's not made by step D1, and it's therefore unsatisfactory.

[00:05:32] Speaker 02:
In fact... Mr. Jakes, this was a jury verdict, and the issues that you're arguing to us were presented to the jury.

[00:05:40] Speaker 02:
So we need to... Were they not?

[00:05:42] Speaker 01:
No, Your Honor.

[00:05:43] Speaker 01:
It's a matter of plain construction.

[00:05:45] Speaker 01:
This construction was given to the jury that all that is required by continuous process.

[00:05:51] Speaker 02:
And apparently, without objection, the construction was presented as the parties agreed.

[00:05:58] Speaker 02:
Is that right?

[00:05:59] Speaker 01:
No, that's not it.

[00:06:00] Speaker 01:
We did not object at the time of the jury instructions, but it had been made clear at the Markman hearing and at the summary judgment stage that the court was going to use this construction and we did not agree with it.

[00:06:12] Speaker 01:
And I think if you look at cases like

[00:06:14] Speaker 01:
Cardiac pacemakers versus St.

[00:06:17] Speaker 01:
Jude.

[00:06:18] Speaker 01:
We don't have to repeat that objection to preserve this issue for appeal that the incorrect construction was given to the jury.

[00:06:26] Speaker 01:
And it makes a difference because if you see from the summary judgment papers, it's undisputed that SKPI's process does not use step D1.

[00:06:36] Speaker 01:
So it's not a harmless error.

[00:06:38] Speaker 01:
This claim construction is meaningful.

[00:06:41] Speaker 01:
If the court had given the correct construction,

[00:06:44] Speaker 01:
that it required step D1, that it requires a sag when the film goes into the tenter, we wouldn't have met it.

[00:06:51] Speaker 03:
Do I understand right that on this cling construction issue, you have requested vacator, not reversal?

[00:06:59] Speaker 01:
Well, reversal of the cling construction and remand the case.

[00:07:03] Speaker 03:
What would there be to remand for the 961 judgment?

[00:07:09] Speaker 03:
Wouldn't that just be reversed?

[00:07:11] Speaker 03:
Or is there actually a dispute

[00:07:13] Speaker 03:
about whether under your view of the claim construction there could be infringement.

[00:07:19] Speaker 01:
I don't believe there is a dispute.

[00:07:21] Speaker 01:
We did not move for judgment as a matter of law on this issue.

[00:07:24] Speaker 01:
And so I believe that the correct process would be to vacate the judgment and what happens on remand would be determined by the district court.

[00:07:32] Speaker 01:
We didn't want to over ask for what we were entitled to.

[00:07:37] Speaker 01:
If you look at the prosecution history, that also confirms this particular construction

[00:07:44] Speaker 01:
Throughout the prosecution history, it says that this continuous process results in a materially different product.

[00:07:54] Speaker 01:
And for example, the Fujihara references distinguished saying, if you don't use this step, you would inherently get something that's not within the claims.

[00:08:03] Speaker 01:
So that can't be comparative example one either.

[00:08:07] Speaker 01:
There is a statement in there that says the claims are directed to the film, not the process.

[00:08:14] Speaker 01:
This case is already established that produced by a continuous process is a limitation in the claims.

[00:08:22] Speaker 01:
The court said that.

[00:08:23] Speaker 01:
Conica proposed that.

[00:08:25] Speaker 01:
We're just talking about what does that mean and how does it limit the claims.

[00:08:29] Speaker 01:
And once you look at all the documents, including the specification and the prosecution history, I believe that it should be interpreted to require step D1.

[00:08:40] Speaker 01:
And Judge Toronto, to your question, if we have to reach the level of disclaimer here,

[00:08:45] Speaker 01:
I believe we can meet it if you look at cases that we've cited, like the Luminarra case or the Polly America case.

[00:08:52] Speaker 01:
Very similar language in the specification about the present invention.

[00:08:56] Speaker 01:
And I think in Luminarra, the term free to pivot was interpreted as requiring chaotic movement based on the statements in the specification.

[00:09:06] Speaker 01:
That's very similar to what we have here.

[00:09:09] Speaker 01:
The repeated times where it says the present invention and this step is important

[00:09:14] Speaker 01:
make it clear that that's what it should be.

[00:09:16] Speaker 01:
Also, if you look at the examples, the seven examples, every one of them says the present invention.

[00:09:22] Speaker 01:
Every one of them has step B1.

[00:09:25] Speaker 01:
The comparative example does not, and that's rated as unsatisfactory by the specification.

[00:09:32] Speaker 02:
Okay.

[00:09:33] Speaker 01:
Okay.

[00:09:34] Speaker 01:
If I could turn to the inducement issue on the 961 patent.

[00:09:38] Speaker 02:
Yeah.

[00:09:39] Speaker 01:
Here, what the district court said, it said that

[00:09:44] Speaker 01:
SKPI was aware of the patent when the suit was filed and continued to use the same process without change.

[00:09:54] Speaker 01:
That's not enough for inducement.

[00:09:56] Speaker 01:
There has to be an intent to infringe.

[00:09:59] Speaker 01:
In fact, if that were all that were in a complaint, it would be dismissed on the pleadings.

[00:10:03] Speaker 01:
That's not enough even at the pleading stage to plead inducement, to simply say, as of the date of filing the complaint, you were aware of it and you didn't change.

[00:10:14] Speaker 01:
So what else is there?

[00:10:15] Speaker 03:
Can I just ask?

[00:10:17] Speaker 03:
So this is a case in which the AIA's 298 does not apply, right?

[00:10:22] Speaker 03:
It does not.

[00:10:24] Speaker 03:
So if 298 doesn't apply, is there some pre-298 law on the subject of whether not having gone and gotten an opinion of counsel or the like can be used against you?

[00:10:44] Speaker 01:
I don't think so.

[00:10:45] Speaker 01:
I think before the statute was amended, that was generally the law that you couldn't use the failure to invoke privilege.

[00:10:55] Speaker 01:
I mean, the invoking privilege is something against you.

[00:10:58] Speaker 01:
There isn't any issue like that here.

[00:11:01] Speaker 01:
There was no question about any of that.

[00:11:03] Speaker 03:
It wasn't part of the evidence, in fact, used to support the inference of knowledge

[00:11:12] Speaker 03:
or willful knowledge of infringement or willful blindness toward the possibility of infringement that you didn't go out in the months following July 2010 and try to figure out whether you were really infringing?

[00:11:29] Speaker 01:
Well, I know I don't think that's a fair inference, and I think that's really the answer, is because what happened after the suit was filed?

[00:11:37] Speaker 01:
Well, the district court suit was stayed,

[00:11:40] Speaker 01:
And there was a case that went forward in the ITC.

[00:11:43] Speaker 03:
Right.

[00:11:44] Speaker 03:
But there is at least some evidence that maybe the product was not quite the right product.

[00:11:48] Speaker 03:
So that can't be conclusive.

[00:11:50] Speaker 01:
Well, we had a determination by the ITC that we didn't infringe.

[00:11:57] Speaker 01:
And Kanaka can complain after the fact saying, well, there might have been something wrong with the samples.

[00:12:03] Speaker 01:
The fact is there was a determination that we did not infringe.

[00:12:08] Speaker 01:
They didn't appeal it.

[00:12:09] Speaker 01:
They did not appeal that judgment.

[00:12:12] Speaker 01:
I don't think it takes a great leap to conclude that SKPI, from that, believed that they weren't infringing.

[00:12:22] Speaker 01:
The idea that they somehow, from a judgment from the ITC, you don't infringe, that they would conclude, oh, yes, we're likely, we still do infringe, that doesn't even rise to the level of what a reasonable jury would conclude.

[00:12:36] Speaker 01:
That can't be enough.

[00:12:38] Speaker 01:
And the fact that it shows the opposite.

[00:12:40] Speaker 01:
That SKPI throughout believed that it didn't infringe.

[00:12:45] Speaker 01:
In the normal course of the litigation, it presented its non-infringement defenses and it succeeded.

[00:12:52] Speaker 01:
So where is the intent?

[00:12:54] Speaker 01:
The only other thing is the other witnesses who were presented, the judge said that their testimony was not detailed.

[00:13:02] Speaker 01:
They simply said, look, we have positions in our litigation.

[00:13:05] Speaker 03:
I think your suggestion is that the criticism of those witnesses merely returns the state of the evidence to neutral.

[00:13:13] Speaker 01:
It does.

[00:13:13] Speaker 03:
But why couldn't it, in fact, move it in the direction of support, namely, when the witnesses put on by the defendants are essentially, assuming this characterization,

[00:13:31] Speaker 03:
just reciting rote stuff given to them at a high level of generality.

[00:13:36] Speaker 03:
Why isn't an adverse inference drawable from that?

[00:13:39] Speaker 01:
Because we didn't have a burden to prove our own good faith.

[00:13:43] Speaker 01:
It's their burden to prove induced infringement.

[00:13:46] Speaker 01:
And that's why we say that the court, when it looked at it and properly shifted the burden, they could have said nothing.

[00:13:52] Speaker 01:
And what they did say is consistent with what Mr. Song said.

[00:13:56] Speaker 01:
We relied on the ITC determination.

[00:13:58] Speaker 01:
There's nothing inconsistent with that.

[00:14:01] Speaker 01:
This can't meet the bare threshold.

[00:14:03] Speaker 01:
I mean, that's what this court does.

[00:14:04] Speaker 01:
You have to look at the evidence that was presented and say, is that enough for a jury?

[00:14:09] Speaker 01:
And we don't think it meets the line.

[00:14:11] Speaker 03:
Do you have anything you want to say about the 069?

[00:14:14] Speaker 01:
Of the 064, Pat?

[00:14:15] Speaker 03:
064, sorry.

[00:14:17] Speaker 01:
Well, on the exhaustion issue, that's a question of a law that this court should determine based on the contract.

[00:14:26] Speaker 01:
There was testimony from two witnesses

[00:14:30] Speaker 01:
that Kanaka put forward.

[00:14:32] Speaker 01:
And they were not familiar with the negotiations.

[00:14:35] Speaker 01:
There's no contemporaneous testimony to change the plain words of the contract.

[00:14:41] Speaker 01:
And so we stick by our exhaustion defense and believe that that should resolve the 06 forebound.

[00:14:49] Speaker 02:
OK.

[00:14:49] Speaker 02:
Thank you, Mr. Jakes.

[00:14:53] Speaker 02:
Mr. Dane.

[00:14:54] Speaker 00:
Good morning, Your Honors.

[00:14:56] Speaker 00:
Anthony Dane appearing for Kanaka.

[00:15:00] Speaker 00:
The 961, what SKPI is doing is trying to argue around the comparative claim by picking out of context one sentence in which the comparative claim was being compared to the other claims.

[00:15:21] Speaker 00:
But they can't deny that the comparative claim was done without step D. Comparative example.

[00:15:29] Speaker 00:
The comparative example, I'm sorry, was done without step D, and it met claims.

[00:15:35] Speaker 00:
It met the claims one and five.

[00:15:39] Speaker 00:
So the comparative example is another example, another mode that met claims one and five.

[00:15:46] Speaker 00:
It just didn't meet two and four.

[00:15:49] Speaker 00:
So what they're doing is taking out of context a statement

[00:15:52] Speaker 00:
which really in context means we couldn't get the best.

[00:15:56] Speaker 03:
Well, let me just ask this, and I may be confused, but you'll correct my confusion.

[00:16:02] Speaker 03:
So in your view, it meets claim one and five only if you assume the answer to the question of what continuous process means.

[00:16:10] Speaker 00:
No.

[00:16:11] Speaker 00:
What I'm saying is the comparative example was done without step D.

[00:16:19] Speaker 03:
So even if step D were, let's say they want to incorporate step D. But then it wouldn't meet claim one, which requires a continuous process if, in fact, continuous process required step D. It would meet, yeah, that's right.

[00:16:34] Speaker 00:
But here's the point.

[00:16:36] Speaker 00:
You have to construe the term across the entire claims.

[00:16:42] Speaker 00:
So each one of one, two, three, four, and five use continuous process.

[00:16:47] Speaker 00:
So you can't have it both ways.

[00:16:50] Speaker 00:
If what you're going to say is there is only one example, I mean, there's only one mode in the patent, and that has step D, then you're ignoring this comparative example.

[00:17:04] Speaker 00:
And if continuous process.

[00:17:07] Speaker 03:
What's the best reason that you can point to from the spec?

[00:17:14] Speaker 03:
to infer that the comparative example, which sort of sounds like it's not part of the invention from the name, is actually part of the invention.

[00:17:23] Speaker 00:
No.

[00:17:24] Speaker 00:
First of all, when you use comparative example, there's no case law that says the term comparative example means it must not be part of the claim.

[00:17:31] Speaker 03:
That's why I said sounds like.

[00:17:32] Speaker 00:
Sounds like.

[00:17:33] Speaker 00:
And that is, to narrow the plain language of the claim, a disclaimer must be clear and unmistakable.

[00:17:39] Speaker 00:
That's Sanofi.

[00:17:41] Speaker 00:
I don't know where counsel is arguing that he isn't bound

[00:17:45] Speaker 00:
by the fact that you have to disclaim that and say that they don't have to meet that burden.

[00:17:54] Speaker 00:
But nowhere in the specification does it say step one is necessary or required.

[00:18:01] Speaker 00:
It merely, in the best mode section, says it's important.

[00:18:05] Speaker 00:
It doesn't say necessary and required.

[00:18:07] Speaker 00:
And there are claims.

[00:18:09] Speaker 02:
But it was used to distinguish the prior art, was it not?

[00:18:14] Speaker 00:
No, and that's where they're also parsing words.

[00:18:17] Speaker 00:
To distinguish a priority was not necessary, and that's what I get into, to clearly disclaim that any other method other than step D is required to meet the claims.

[00:18:33] Speaker 00:
So no, that isn't the case.

[00:18:36] Speaker 00:
And that's where you have to combine these.

[00:18:38] Speaker 00:
They can't pick and choose.

[00:18:40] Speaker 00:
There was no disclaimer that was clear and mistakeable that said only step D must be employed.

[00:18:47] Speaker 00:
And in fact, when they were arguing claim construction, if you look below, they were arguing that the comparative example didn't meet any of the claims.

[00:18:56] Speaker 00:
And when we demonstrated to the court that, in fact, it did meet, the lack of step D still would meet in the comparative example under claims one and five.

[00:19:07] Speaker 00:
And the court said, I have to consistently

[00:19:10] Speaker 00:
construe continuous process.

[00:19:12] Speaker 03:
Can you just go through this again?

[00:19:13] Speaker 03:
I guess I'm stuck in what may be a confusion.

[00:19:17] Speaker 03:
If continuous process requires step D, then comparative example one doesn't meet it, does it?

[00:19:25] Speaker 00:
No.

[00:19:26] Speaker 00:
No.

[00:19:26] Speaker 00:
But what they're saying is that they'd be ignoring that continuous process has to be construed across the entire claims, right?

[00:19:34] Speaker 00:
So you'd have to have

[00:19:37] Speaker 00:
an unmistakable disclaimer that it has to be under step D. But then how do you, without having absolute language in the specification that the comparative example was meant to distinguish this invention and say that it does not meet this invention, how do you reconcile that it meets claims one and five?

[00:20:06] Speaker 00:
If you read what the patentee said is, in context, you didn't achieve the best mode.

[00:20:15] Speaker 00:
You didn't achieve the most consistent across the entire width of the expansion you wanted.

[00:20:31] Speaker 00:
But it didn't say it was required, and it didn't say that you failed to meet this invention under comparative example one.

[00:20:40] Speaker 00:
Or so.

[00:20:40] Speaker 02:
But didn't they always release the tension as in step D?

[00:20:44] Speaker 00:
Say it again, I'm sorry.

[00:20:45] Speaker 02:
I said, didn't they always release the tension in order to get the desirable structure?

[00:20:50] Speaker 00:
No.

[00:20:51] Speaker 00:
You can do it by releasing tension or without tension.

[00:20:54] Speaker 00:
You may get the best mode by step D.

[00:20:59] Speaker 00:
But there are other modes that you could get.

[00:21:01] Speaker 00:
And that's what the court in construing the claims was understanding, that you may not get the best mode.

[00:21:07] Speaker 00:
And this was under best mode.

[00:21:08] Speaker 00:
Step D was under best mode section.

[00:21:12] Speaker 00:
All comparative example is saying is you're not achieving that best mode.

[00:21:16] Speaker 02:
So how did the claim construction, as Mr. Jakes argues, embody the distinction that he states was wrong as a matter of law?

[00:21:26] Speaker 00:
Well, the continuous process was construed by the court as it was just to be consistent across the claims.

[00:21:34] Speaker 00:
It's just a process in which you consistently pour the varnish on, and it runs by a belt or a drum.

[00:21:44] Speaker 00:
That's consistent across the entire claims.

[00:21:47] Speaker 00:
In order to achieve the best mode, you may want to use SAG.

[00:21:51] Speaker 00:
But you don't need to.

[00:21:52] Speaker 00:
You can apply tension.

[00:21:55] Speaker 00:
And that's the comparative example.

[00:21:56] Speaker 00:
It just merely didn't achieve the best mode.

[00:21:58] Speaker 03:
Did the comparative example use SAG, or did it have tension?

[00:22:03] Speaker 00:
No, the comparative example didn't use the step D. That's the point, did not.

[00:22:09] Speaker 03:
Is that fact, which you just stated, is that in the description of comparative example at the bottom of column 32?

[00:22:19] Speaker 00:
Your Honor, I don't have the column in front of me.

[00:22:25] Speaker 00:
if counsel can have it.

[00:22:27] Speaker 03:
But the comparative example... But when you say it did apply tension before it went into the tentative.

[00:22:33] Speaker 00:
Yes.

[00:22:34] Speaker 00:
Okay.

[00:22:35] Speaker 00:
And it still meets claims one and five.

[00:22:39] Speaker 00:
So let me just say this.

[00:22:41] Speaker 00:
So I guess the answer is yes, and I can cite you to the appendix 350 at 37.1 through 28.

[00:22:47] Speaker 00:
That step D, I mean comparative example one, was made without step D or SAG.

[00:22:54] Speaker 00:
And it falls within claims one or five.

[00:22:56] Speaker 00:
And claims one through five all claim a polyamide film produced by continuous process.

[00:23:02] Speaker 00:
So we start with, you have to establish the common terms.

[00:23:06] Speaker 00:
They have to be construed across the entire claims consistently.

[00:23:10] Speaker 00:
And then, as I said, we didn't say that step D was necessary.

[00:23:17] Speaker 00:
We didn't say it was required, which what the case law says, if you want to explicitly

[00:23:23] Speaker 00:
disclaim.

[00:23:25] Speaker 00:
So they're reading into the specification things that aren't there and they wanted to read into the claims against these two positions, against the Rexnard case which says the common term must be construed consistently and that if you're going to narrow it a disclaimer must be clear and unmistakable.

[00:23:50] Speaker 02:
So do you agree that there was a proper objection

[00:23:54] Speaker 02:
to the claim construction as given to the jury?

[00:23:57] Speaker 00:
Oh, no.

[00:23:57] Speaker 00:
The counsel admitted there was no objection at the time it was given to the jury.

[00:24:02] Speaker 00:
And in fact, they continue to argue.

[00:24:04] Speaker 02:
He says there was an objection during the Markman hearing.

[00:24:07] Speaker 00:
Well, the Markman hearing, I guess if you call it an objection, they were just arguing a different construction.

[00:24:14] Speaker 03:
Have they preserved this claim construction issue?

[00:24:16] Speaker 03:
I don't recall in your red brief saying that they did.

[00:24:18] Speaker 03:
I didn't argue that because... Didn't this court say, I thought it was in Verizon against Vonage or some other case, squarely, if the claim construction issue has been resolved definitively ahead of time, you do not have to raise it at the jury instruction stage.

[00:24:39] Speaker 00:
And Your Honor, for purposes, I would agree with that.

[00:24:42] Speaker 00:
I don't know that they haven't preserved it by failing to object a third time.

[00:24:46] Speaker 02:
But as critical is it not?

[00:24:47] Speaker 02:
They're limiting their argument to this question of law.

[00:24:51] Speaker 02:
They appreciate the problems with review of a jury verdict.

[00:24:55] Speaker 02:
And so we need to decide whether the question of law was correctly decided and appropriately objected.

[00:25:02] Speaker 00:
No.

[00:25:03] Speaker 00:
And here's the problem with not objecting at that stage.

[00:25:07] Speaker 00:
It would mean that you would simply have to go back because we're not agreeing that they wouldn't infringe

[00:25:14] Speaker 00:
even if step D were the requirement, they seem to imply that this court would simply have to reverse because there's no issue that they would not infringe if they didn't meet step D. We didn't concede that.

[00:25:27] Speaker 00:
We didn't agree to that.

[00:25:29] Speaker 03:
And they didn't make a J-Maw motion on this.

[00:25:31] Speaker 00:
That's right.

[00:25:32] Speaker 00:
That's right.

[00:25:32] Speaker 00:
So on that issue, all we would be doing is going back to see whether the judge, in reviewing this again, would either

[00:25:41] Speaker 00:
It would employ step D, which again would require him then to be consistent across all the entire claims.

[00:25:52] Speaker 00:
But we're not agreeing that they still didn't infringe.

[00:25:56] Speaker 00:
We just believe that the court got the proper instruction.

[00:25:59] Speaker 00:
So again, yeah, they would have had object to that and have a JMAW saying that without step D, there would have been no infringement.

[00:26:10] Speaker 00:
with if they didn't do step D. Your Honor, just to preserve time, could I briefly go to the 064?

[00:26:18] Speaker 03:
Mr. Jakes made essentially two arguments this morning.

[00:26:22] Speaker 03:
The 064 was sort of the third right at the tail end, but the second one was, he says, there was insufficient evidence for the jury to infer the intent

[00:26:35] Speaker 03:
requirement of inducement.

[00:26:37] Speaker 03:
Can you explain why, what the sufficient evidence is of knowledge of or willful blindness to infringement of the 961?

[00:26:48] Speaker 00:
Okay, so first of all, once the infringement claim was filed, the infringement lawsuit was filed, they have knowledge.

[00:26:57] Speaker 00:
What your honor was addressing in that scope... They have knowledge of the patent.

[00:27:01] Speaker 00:
The patent, right.

[00:27:02] Speaker 03:
Which is not enough.

[00:27:03] Speaker 00:
Well, and again, they spent a lot of time talking about evidence of knowledge, not of evidence of their intent.

[00:27:11] Speaker 03:
Knowledge of infringement.

[00:27:13] Speaker 00:
Right.

[00:27:14] Speaker 00:
So that's what I'm getting to.

[00:27:15] Speaker 03:
Drop the word intent.

[00:27:16] Speaker 00:
That's what I'm getting to.

[00:27:17] Speaker 00:
Knowledge of infringement.

[00:27:18] Speaker 00:
So they had knowledge of the infringement.

[00:27:20] Speaker 00:
And what Your Honor was getting to, they hired an expert.

[00:27:24] Speaker 00:
They did hire an expert.

[00:27:25] Speaker 00:
And that expert specifically was not asked to determine whether they infringed.

[00:27:31] Speaker 00:
merely just to criticize the testing of Kanika's expert.

[00:27:37] Speaker 00:
And that alone would be willful blindness, because once you hire that expert who's an expert on infringement and you're saying, I don't want to know if I infringe, then you're becoming willfully blind.

[00:27:49] Speaker 00:
In addition, Your Honor is correct.

[00:27:52] Speaker 03:
Would that inference still be good after 298?

[00:27:54] Speaker 00:
I believe that inference after 298 alone would not be

[00:28:01] Speaker 00:
enough.

[00:28:02] Speaker 00:
It would be part of the evidence, but not enough.

[00:28:04] Speaker 03:
And pre-298 law allowed you to rely on that?

[00:28:08] Speaker 03:
Is that right?

[00:28:08] Speaker 00:
It did.

[00:28:09] Speaker 00:
It did.

[00:28:09] Speaker 00:
But there's more.

[00:28:10] Speaker 03:
Did you say that, or is this just no, we never said the contrary?

[00:28:14] Speaker 00:
Well, clearly it's never said the contrary before that there was no right to rely on that.

[00:28:19] Speaker 00:
And I think that without a statement that counsel couldn't, it would

[00:28:27] Speaker 00:
It would kind of lay waste to a lot of jury trials where counsel didn't need to put on more.

[00:28:32] Speaker 00:
But there was more.

[00:28:33] Speaker 00:
They had a patent task force that had been examining patents.

[00:28:38] Speaker 00:
The patent task force was looking not just at patents, but at patent applications that they expected to issue.

[00:28:45] Speaker 00:
The patent task force had statements saying that, boy, we're running a serious risk of being sued on a number of patents.

[00:28:56] Speaker 00:
They were looking at specifically Canica's patents because, again, there are only two or three competitors in this field.

[00:29:03] Speaker 00:
But then there was even more than that.

[00:29:06] Speaker 00:
They continued to follow the patent process afterwards.

[00:29:13] Speaker 00:
And then they did have witnesses.

[00:29:16] Speaker 03:
I'm sorry.

[00:29:16] Speaker 03:
Why would that?

[00:29:18] Speaker 03:
As soon as they were sued on July 26, 2010, they knew about the patent.

[00:29:23] Speaker 03:
Who cares whether they were following patents?

[00:29:25] Speaker 00:
Right.

[00:29:25] Speaker 00:
If they continue to follow patents, that's where I'm getting to what Your Honor said.

[00:29:29] Speaker 00:
If they choose to present witnesses, and they present persons most qualified on this issue, and we depose those witnesses, we can use that evidence affirmatively to show that the witnesses are just regurgitating rote statements, and they're not actually clarifying why, in their opinion, as they said,

[00:29:50] Speaker 00:
Their statement is, we believe we did not infringe.

[00:29:53] Speaker 00:
Well, that means you're making an effort to determine you infringe.

[00:29:57] Speaker 00:
And if your statements are merely applied as they admitted by their attorney, were given to them by their attorney, then that is evidence that can be used.

[00:30:06] Speaker 00:
And the judge did use that, and the jury did use that.

[00:30:09] Speaker 02:
Your Honor, I apologize.

[00:30:11] Speaker 02:
We're running out.

[00:30:12] Speaker 02:
But will you take a few minutes on your cross appeal?

[00:30:15] Speaker 00:
I will take a few minutes.

[00:30:17] Speaker 00:
Does the Court not wish me to address the 064?

[00:30:21] Speaker 03:
The exhaustion question.

[00:30:23] Speaker 03:
Do you have something you want to tell us about that?

[00:30:25] Speaker 00:
Merely that on the 064, counsel just made a tautology.

[00:30:31] Speaker 00:
They changed the law, even though we had two experts who had submitted reports, depositions, and declarations.

[00:30:40] Speaker 00:
And all of them disagreed on what the law is.

[00:30:44] Speaker 00:
And ultimately, the two parties of Japanese construction, the two parties stipulated to an instruction, told the judge it was based on all that.

[00:30:54] Speaker 00:
And the instruction is not the law that they're now imposing as a tautology.

[00:31:00] Speaker 00:
They're now saying their expert would have liked the law to have been this.

[00:31:04] Speaker 00:
That's what this court should follow.

[00:31:06] Speaker 00:
They've waived it because they stipulated to the instruction under the law.

[00:31:11] Speaker 03:
So for Jamal, we've said, and they appropriately quoted footnote five in Markman, which was directly based on the Supreme Court's boil against United Technologies, that for Jamal, the standard of what the correct law is, is not tethered to the jury instruction.

[00:31:32] Speaker 03:
That leaves the question,

[00:31:35] Speaker 03:
Did they, in their Jamal motion, say, by the way, the law demands much more than was stated in the jury instruction?

[00:31:48] Speaker 00:
No, they did not do so in their Jamal or in their appellate briefs.

[00:31:52] Speaker 00:
This was a new creation.

[00:31:53] Speaker 00:
They did in their appellate briefs.

[00:31:55] Speaker 00:
They stated it just as a matter of principle without backing out that once you're on appeal, having not done it in a Jamal,

[00:32:04] Speaker 00:
Now you have to accept that you stipulated to a jury instruction, and now you do have the waiver issue, because they didn't raise it in Jamal.

[00:32:12] Speaker 00:
That's my point.

[00:32:13] Speaker 00:
So they just stated as though they did, and then we had to argue waiver.

[00:32:19] Speaker 02:
OK, that's it.

[00:32:21] Speaker 02:
Let's hear your cross appeal.

[00:32:23] Speaker 00:
And I'm sorry if this is a racehorse, but I'm trying to get it through so quickly.

[00:32:27] Speaker 00:
On the injunction, what happened is during the course of post-trial motion,

[00:32:33] Speaker 00:
and before the court had decided.

[00:32:37] Speaker 00:
SKPI files its own declaratory judgment action, claiming it no longer infringes.

[00:32:43] Speaker 02:
Well, in that case, to get straight to the point, isn't the issue whether, in fact, we now should consider the change, whether there should be an injunction against any changed structure or await the

[00:33:01] Speaker 02:
result of the declaratory action?

[00:33:05] Speaker 00:
So there are two steps.

[00:33:07] Speaker 00:
And first, in arguing against an injunction, they admitted, and we have testimony, they admitted that they continued to sell the infringing products, the actual products found to infringe, for a period of time, at least six months or more after the jury's verdict.

[00:33:27] Speaker 00:
So they continued to deplete their inventory.

[00:33:30] Speaker 00:
Part of our injunction was exactly on that, to stop.

[00:33:34] Speaker 03:
Why is the jury verdict date the relevant time?

[00:33:37] Speaker 03:
The jury verdict was six months or something before you even moved for an injunction.

[00:33:42] Speaker 00:
No, no, no, no.

[00:33:43] Speaker 00:
We moved for injunction.

[00:33:44] Speaker 00:
The court didn't issue the judgment and didn't have the hearing for a period of time.

[00:33:50] Speaker 00:
So the judgment wasn't issued for approximately 14 months, I think, after the jury verdict.

[00:33:57] Speaker 02:
But when the jury verdict was issued... The delay was because of request motions for Jamal?

[00:34:05] Speaker 00:
In part it was, and then in part after the Jamal motions were argued, the judge took a long period of time just to issue the judgment.

[00:34:15] Speaker 00:
It may have sat for a while, and then he realized we filed some papers indicating he hadn't yet issued it.

[00:34:22] Speaker 02:
But did the damages assessment include infringement during that period?

[00:34:27] Speaker 00:
No, and here's the problem.

[00:34:28] Speaker 00:
This is what we raise.

[00:34:30] Speaker 00:
The SKPI's position at trial was, we have no idea where a film goes.

[00:34:35] Speaker 00:
So we can't help you with damages.

[00:34:38] Speaker 00:
We don't know where it goes.

[00:34:39] Speaker 00:
We don't know how much there is.

[00:34:41] Speaker 00:
So we explain.

[00:34:42] Speaker 02:
But you're asking us to decide where the film goes?

[00:34:44] Speaker 02:
Or is it just something for the district court?

[00:34:47] Speaker 00:
No, the jury had already decided it comes in the United States.

[00:34:50] Speaker 00:
The problem was, we couldn't quantify the total amount.

[00:34:55] Speaker 00:
That was always the problem we had.

[00:34:56] Speaker 00:
So we narrowed it to a very specific route we could follow coming in.

[00:35:02] Speaker 00:
But our experts said there's much more coming in.

[00:35:04] Speaker 00:
I just can't quantify it.

[00:35:06] Speaker 00:
And SKPI was of no help because they were saying, we have no idea where it goes.

[00:35:12] Speaker 00:
We have no idea.

[00:35:13] Speaker 00:
The jury didn't believe that.

[00:35:14] Speaker 00:
They knew it came in the United States.

[00:35:15] Speaker 00:
But we couldn't quantify the dollar amount.

[00:35:18] Speaker 00:
So we said we were being irreparably harmed by this continuation of selling what the jury had already found infringed.

[00:35:26] Speaker 00:
The judge ignored that.

[00:35:28] Speaker 00:
What he said was, as long as they filed a motion, I mean, a new complaint, I have to defer to that court.

[00:35:35] Speaker 00:
But Your Honor, that turns the law on its head.

[00:35:38] Speaker 00:
So every time you get a jury verdict or a judgment, if the other side merely goes in on declaratory judgment and says, we've designed around whether they have or not, we obviously believe they still infringed.

[00:35:51] Speaker 03:
It doesn't have to be any time.

[00:35:53] Speaker 03:
It's a matter of some discretion for the district court, right?

[00:35:55] Speaker 03:
No, the court didn't even get into the details of whether or not... I thought Judge Bernal said among the reasons for not giving the injunction was that basically this matter is in Judge Guilford's hands now and leave it there.

[00:36:12] Speaker 00:
What he said was, I don't want to interfere with that determination of whether there is a redesign.

[00:36:19] Speaker 02:
That was on the assertion that the product had been changed.

[00:36:25] Speaker 02:
sounds as if you're asking us to do something or other to exclude everything, changed product, unchanged product?

[00:36:35] Speaker 00:
No, this is what we asked for, to enjoin the continued sale of the actual products, the named products that were found to infringe, and any products that are not colorably different, which is a normal injunction so that you can't

[00:36:53] Speaker 03:
And just to clarify, did you ask for all of their sales that meet those two criteria to be enjoined without regard to whether they knew that those units were going to come into the United States?

[00:37:10] Speaker 00:
No, only the products that are coming to the United States, but the jury had already found.

[00:37:15] Speaker 03:
What was the language of the proposed injunction?

[00:37:19] Speaker 00:
The language of the proposed injunction was to enjoin the products that had been named as infringing and therefore induce.

[00:37:28] Speaker 03:
I'm sorry, you don't enjoin the product, you enjoin an activity with respect to the product.

[00:37:34] Speaker 00:
That's right.

[00:37:35] Speaker 00:
So the making, using, selling of any of those products.

[00:37:41] Speaker 00:
And actually we'd asked for a notice that they notify their vendors that they not be

[00:37:46] Speaker 00:
ultimately products that come into the United States, and any colorable limitations.

[00:37:52] Speaker 00:
So if they have products that they're selling in China, of course those wouldn't be enjoined.

[00:37:56] Speaker 03:
Where's the language of your proposed injunction in the appendix?

[00:38:02] Speaker 00:
Do you have the appendix number?

[00:38:30] Speaker 00:
I believe, and I could be wrong, I think it's found in appendix 7261 through 7275.

[00:38:47] Speaker 00:
That's testimony.

[00:39:14] Speaker 00:
Can I read to you the actual words at 7696 through 7697?

[00:39:22] Speaker 00:
And I'll read it to you, Your Honor.

[00:39:23] Speaker 00:
Directly or indirectly infringing the 961 patent by manufacturing for delivery to the United States using selling, offering to sell, or importing into the United States, the specific films found in Pritch and I didn't lay them all forward, the 961 patent

[00:39:42] Speaker 00:
or any colorable imitations of the infringing products.

[00:39:46] Speaker 00:
So that's appendix 7696 through 7697.

[00:39:50] Speaker 00:
And they had admitted they were actually doing that as to some products.

[00:39:56] Speaker 00:
They didn't deny that.

[00:39:58] Speaker 03:
And as a matter of fact, their witness's testimony was... Did they admit that they were doing that at the time of the consideration of this injunction request?

[00:40:08] Speaker 00:
Yes.

[00:40:09] Speaker 00:
In fact, at argument on that, they admitted at the present time they were doing that.

[00:40:14] Speaker 00:
And so that's the first thing.

[00:40:16] Speaker 02:
Ginsburg.

[00:40:17] Speaker 02:
Isn't that a matter of calculation of damages?

[00:40:20] Speaker 00:
No.

[00:40:21] Speaker 02:
The continuing action after if we were to affirm what the district court decided, there were and here, if you say there was admitted infringement after the verdict was rendered.

[00:40:37] Speaker 02:
that there's a post-trial damages system?

[00:40:44] Speaker 00:
Yes, Your Honor.

[00:40:44] Speaker 00:
There is a post-trial damages system, and we would need an accounting.

[00:40:48] Speaker 00:
The reason we were asking for an injunction, though, is our damages expert said, I can't get information from SKPI on how much is actually coming in, because they denied any knowledge that it was coming in, even though the jury found ultimately it was.

[00:41:07] Speaker 00:
So what he said was, I've traced a very closed system from Korea into the United States.

[00:41:13] Speaker 00:
That amount I can confirm.

[00:41:15] Speaker 00:
The rest would be subject to having to go through machinations, including hopefully getting SKPI to come clean as to what that amount is.

[00:41:25] Speaker 00:
But in the interim, we couldn't assess those damages.

[00:41:29] Speaker 00:
So if you're asking me by now, maybe in accounting we can address them.

[00:41:34] Speaker 00:
But our expert specifically said,

[00:41:37] Speaker 00:
and this is where the irreparable harm comes.

[00:41:39] Speaker 00:
I'm only getting the tip of the iceberg.

[00:41:42] Speaker 00:
There's so much more that is coming in, but I can't give you a calculation with reasonable certainty because I can't get SKPI's numbers.

[00:41:52] Speaker 00:
So once you admit after that that you're continuing to deplete that inventory, but you won't come clean on the amount of it, you should be enjoined at least from that

[00:42:05] Speaker 00:
and then any colorable imitation, because we had evidence, by the way, presented at trial, that they told their customers, we are changing the name of the product, but the product was going to be the same.

[00:42:18] Speaker 02:
So we had some evidence that even this wasn't being litigated in the district court, whether the product was different or the same.

[00:42:25] Speaker 00:
Yeah, and that was our argument, that the product was just named something different.

[00:42:31] Speaker 03:
Is all of this available for

[00:42:35] Speaker 03:
all appropriate remedial relief in the proceeding currently before Judge Guilford, including the possibility of an injunction?

[00:42:44] Speaker 00:
Yes.

[00:42:49] Speaker 00:
Yes.

[00:42:50] Speaker 00:
Specifically, it would cover the redesigned product again.

[00:42:54] Speaker 00:
But at this point, we have to go forward on the continued sales of the inventory.

[00:43:00] Speaker 00:
So the answer is yes.

[00:43:02] Speaker 00:
But then the question, and this is why I ask it, doesn't it turn the law on its head?

[00:43:06] Speaker 00:
Because if you come in and say, I simply redesigned, are you just simply then to get the benefit now of saying, I won't be enjoined for my first malfeasance.

[00:43:17] Speaker 00:
I'll await the several years so I've delayed any potential of injunction.

[00:43:22] Speaker 00:
I've just freed myself by claiming a redesign.

[00:43:25] Speaker 00:
Doesn't the court still have to go through all the factors and say, you claim a redesign,

[00:43:30] Speaker 00:
But let's still see if the party is injured otherwise, especially by these continued sales.

[00:43:36] Speaker 00:
And let's go through all the factors.

[00:43:39] Speaker 00:
Why should we simply take the word that there's a redesign because you filed a new lawsuit?

[00:43:44] Speaker 00:
That's what turns the law on its head.

[00:43:47] Speaker 02:
Okay.

[00:43:48] Speaker 02:
Let's hear from Mr. Jakes.

[00:43:57] Speaker 01:
Thank you.

[00:43:57] Speaker 01:
If I could answer

[00:43:59] Speaker 01:
A couple of questions on the comparative example.

[00:44:05] Speaker 01:
Right under comparative example it says the TD shrinkage is zero.

[00:44:09] Speaker 01:
That means no sag.

[00:44:11] Speaker 01:
That's the indication there.

[00:44:12] Speaker 01:
If you look at the rest of it though, it calls it a comparative polyamide film.

[00:44:19] Speaker 01:
All the other examples are referred to as the present invention.

[00:44:23] Speaker 01:
Then it goes on to say the results couldn't be obtained with the comparative example.

[00:44:28] Speaker 01:
So what we have here is the patent doesn't disclose any other way to achieve the results other than Step D. Council has argued that it meets some of the claims.

[00:44:44] Speaker 01:
That does assume the answer.

[00:44:45] Speaker 01:
That assumes that Step D is not required.

[00:44:48] Speaker 01:
So that really can't resolve it.

[00:44:50] Speaker 01:
And in fact, if you could make a film that meets the claim without Step D,

[00:44:56] Speaker 01:
And the statements in the prosecution history are false.

[00:44:59] Speaker 01:
The statement that step D results in a materially different film, that the prior art wouldn't meet the properties without step D, it's basically saying, well, maybe they could or they couldn't.

[00:45:13] Speaker 01:
So those statements would no longer be true.

[00:45:15] Speaker 01:
The only way for there to be consistency is if the comparative example is outside the scope of the claims, because it's unsatisfactory and does not meet step D.

[00:45:26] Speaker 02:
Okay.

[00:45:27] Speaker 02:
Are we ready for the cross appeal?

[00:45:29] Speaker 01:
Yes, I'm happy to address that on the cross appeal.

[00:45:31] Speaker 01:
Yes, Your Honor.

[00:45:32] Speaker 01:
I think it's a mistake to say that all we did was file a declaratory judgment action.

[00:45:37] Speaker 01:
We did have our expert test the films and show that they did not fall within the parameters.

[00:45:43] Speaker 01:
There's a dispute over that, but that's not the sort of thing that should be adjudicated on an injunction or a contempt proceeding.

[00:45:50] Speaker 01:
That should be determined as a new judgment of infringement.

[00:45:53] Speaker 01:
So it's not simply filing a declaratory judgment

[00:45:56] Speaker 02:
And so what happens in the interim?

[00:45:58] Speaker 02:
Which court decides whether at least a portion of the continuing importations were covered by the verdict?

[00:46:06] Speaker 01:
Yes.

[00:46:08] Speaker 01:
Well, as to the redesigned films, that will be handled in the department.

[00:46:11] Speaker 02:
Well, that hasn't been decided.

[00:46:12] Speaker 01:
That's right.

[00:46:14] Speaker 01:
As to the other films, the only evidence in the record was that sales within the closed Korean market stopped in August of 2016.

[00:46:22] Speaker 01:
The judgment was entered

[00:46:26] Speaker 01:
of May 2017, Kanika moved for an injunction in July 2017.

[00:46:31] Speaker 03:
I think Mr. Dane said that, at least at the oral argument on the injunction, you agreed that perhaps inadvertently, but nevertheless, some of the old products were still being sold right at that time.

[00:46:52] Speaker 01:
There is a possibility, yes.

[00:46:54] Speaker 01:
But what they were being sold for was for a different purpose.

[00:46:57] Speaker 01:
not for flexible copper-clad laminates in other countries.

[00:47:01] Speaker 01:
And so those inventories were continuing to be sold.

[00:47:05] Speaker 01:
At some point, they have stopped completely.

[00:47:06] Speaker 03:
Was there a concession that they were being sold in a way that you knew destined them for the U.S.?

[00:47:12] Speaker 01:
No.

[00:47:13] Speaker 03:
Not at all.

[00:47:14] Speaker 03:
As to those units, not the redesigned ones, but the perhaps inadvertent old ones sold

[00:47:21] Speaker 03:
sometime after the jury verdict, maybe even at the time of the oral argument on the injunction.

[00:47:27] Speaker 03:
Are those units and sales in front of Judge Guilford?

[00:47:32] Speaker 01:
I don't believe so.

[00:47:34] Speaker 01:
Only the redesigned films are.

[00:47:36] Speaker 01:
Those films, as I said, they stopped in August 2016, the sales within the closed Korean market.

[00:47:42] Speaker 01:
And they stopped for sales to any flexible copper laminate later that year.

[00:47:49] Speaker 01:
There's no evidence that those were sold

[00:47:50] Speaker 01:
beyond 2016.

[00:47:51] Speaker 02:
Well, there's no evidence that apparently is part of the problem, the difficulty of obtaining evidence.

[00:47:59] Speaker 01:
Well, I'm just talking about sold anywhere for those purposes.

[00:48:04] Speaker 01:
I understood at the time of the argument.

[00:48:05] Speaker 03:
I think my question is very much like what Judge Newman asked.

[00:48:10] Speaker 03:
Is there, in fact, something falling through the cracks here?

[00:48:12] Speaker 03:
So the tracing of these things from your facilities, wherever they are, Korea, I guess,

[00:48:20] Speaker 03:
to the United States of the resulting product is apparently quite difficult.

[00:48:26] Speaker 03:
It is.

[00:48:27] Speaker 03:
So that means, which I think Mr. Dane said was one reason that you explained why it was very hard to chew up the damages, provide supplemental damages up to the time of judgment, because who knew where a lot of these came from.

[00:48:41] Speaker 03:
And yet, if those things hard to trace were in fact coming into the United States, the old products, presumably they were harmed.

[00:48:50] Speaker 03:
by that.

[00:48:52] Speaker 03:
And yet you're saying there is no redress for that in front of Judge Guilford?

[00:48:58] Speaker 03:
Is there redress somewhere?

[00:48:59] Speaker 01:
There are still supplemental damages from the after the time of the trial that has not been addressed yet for the same infringement that was proved at trial.

[00:49:09] Speaker 01:
That has not yet been determined.

[00:49:11] Speaker 03:
But on at least what Mr. Baines suggested is that that would in fact be very hard to prove, which is one

[00:49:20] Speaker 01:
Classic maybe reason maybe even the very best reason for enjoining the activity at some source because it's too darn hard to trace the resulting dollar I actually think that turns things around their difficulty improving is because of the way this market is structured if you if you look at what SKP actually does it sells to somebody that is four steps removed in the supply chain and

[00:49:47] Speaker 01:
from the smartphones that come into this country.

[00:49:50] Speaker 01:
That's the reason it's difficult to prove, not because of anything that SKBI does, it's just because of this complicated chain.

[00:49:57] Speaker 03:
But it's at their injunction, even if it might have been too broad, but it would, among other things, I think they say, attach some sort of notice that these things may not come into the United States, at which point the recipients of the thing, as it moves down

[00:50:15] Speaker 03:
five steps or more down the supply chain would have notice of that and decide what risks are worth taking.

[00:50:23] Speaker 01:
That's not necessary because on this record, it shows that we've stopped doing that.

[00:50:28] Speaker 01:
We've stopped selling to the companies in Korea that they were able to prove led to the products being imported in the U.S.

[00:50:36] Speaker 01:
That has stopped.

[00:50:37] Speaker 01:
So there is no injunction that is necessary.

[00:50:40] Speaker 01:
Trying to enjoin SKPI from selling to any country

[00:50:43] Speaker 01:
for any purpose on the possibility that it might eventually make it into the United States.

[00:50:48] Speaker 01:
That is way too broad and that's an extraterritorial injunction.

[00:50:53] Speaker 03:
Did you agree that the 7696 is the proposed order granting entry of injunction?

[00:50:59] Speaker 03:
That's what it's titled.

[00:51:00] Speaker 01:
I believe that that was what they submitted, yes.

[00:51:03] Speaker 03:
The language about selling is maybe not very precisely tied into the United States, but on the other hand,

[00:51:13] Speaker 03:
maybe it is.

[00:51:15] Speaker 01:
SKPI doesn't sell into the United States.

[00:51:19] Speaker 03:
It sells to what they were able to prove, this closed Korean market to two companies that... Did the district court say in denying the request for an injunction, one reason is that the requested one is overbroad?

[00:51:35] Speaker 01:
I don't believe that was the reason.

[00:51:37] Speaker 01:
I think it focused on the redesigned films and the fact that those were going to be in front of

[00:51:43] Speaker 01:
the other district court judge.

[00:51:45] Speaker 01:
And if that's not what they were trying to enjoin, then it shouldn't have been an issue.

[00:51:49] Speaker 01:
But obviously, they were trying to enjoin that.

[00:51:51] Speaker 01:
They were trying to capture the redesigned films.

[00:51:54] Speaker 02:
OK.

[00:51:55] Speaker 02:
Anything else for Mr. Jakes?

[00:51:57] Speaker 02:
Thank you.

[00:51:58] Speaker 02:
Mr. Jakes, a couple of minutes of rebuttal on the cross appeal, if there's something you need to tell us.

[00:52:05] Speaker 00:
Your Honor, just briefly, they're over-complicating the sale process.

[00:52:12] Speaker 00:
They were admitting they continued to sell the inventory, and that inventory we had traced into the United States.

[00:52:20] Speaker 00:
They're talking about the bigger picture of now with this redesigned processor claiming it doesn't have that same route, so that may go other places.

[00:52:30] Speaker 00:
We couldn't quantify it without an accounting, but at the time they admitted it, they admitted they were selling the inventory in the same process, and it was coming through.

[00:52:40] Speaker 00:
They wanted to deplete their inventory.

[00:52:42] Speaker 00:
And counsel was fairly, I mean, he was, I don't want to say honest because he's honest all the time, but he was direct in saying the judge did not rely on, you know, this might go elsewhere or redesign.

[00:52:57] Speaker 00:
He was specifically understanding it was still selling the infringing film that the jury had found.

[00:53:04] Speaker 00:
He was just pushing that to Judge Guilford because they had filed a counterclaim.

[00:53:10] Speaker 00:
So there is something falling through the gap, clearly.

[00:53:14] Speaker 02:
Thank you, Your Honor.

[00:53:15] Speaker 02:
Thank you, Mr. Dan.

[00:53:16] Speaker 02:
Thank you both.

[00:53:17] Speaker 02:
The case is taken under submission.