[00:00:32] Speaker 03:
Next case is Zito LLC versus CRJ Inc.

[00:00:38] Speaker 03:
Ripken Holdings et al.

[00:00:40] Speaker 03:
2019-2009.

[00:00:41] Speaker 03:
Mr. Archibald.

[00:00:42] Speaker 04:
Good morning and may it please the court.

[00:00:49] Speaker 04:
Fundamentally, in this case where a jury trial had been requested, the district court erred by ruling on the defendant's summary judgment motion as if

[00:01:01] Speaker 04:
Without any Markman or other claim construction proceeding, it had conducted a bench trial on the issue of infringement rather than an inquiry into whether the defendants had met their burden of demonstrating non-infringement sufficiently.

[00:01:20] Speaker 00:
Local rules allow the court to not conduct a Markman hearing in certain circumstances, right?

[00:01:27] Speaker 04:
That's correct if there was not a dispute, for example.

[00:01:31] Speaker 04:
There was confusion initially, I think, by council about whether the patent rules, and I know the panel has in mind Maryland being one of the 13 model districts to run

[00:01:47] Speaker 04:
year experiment with specific patent rules and where they interact.

[00:01:54] Speaker 04:
So in this case, and if we look at appendix 88, we see the scheduling order there that the court went through what it was going to do, but then there was the boilerplate in the scheduling order.

[00:02:10] Speaker 04:
that it's Roman Rule 6, the court will require compliance with the local rules.

[00:02:17] Speaker 04:
Of course, the local rules would include in this instance.

[00:02:21] Speaker 00:
Right, but the local rules also include an exception that says that normally we do X, but we don't have to do X. That's certainly true, Your Honor.

[00:02:28] Speaker 04:
Absolutely.

[00:02:29] Speaker 04:
It was the court's right to not have it go through that.

[00:02:34] Speaker 04:
And the court's right to, even though the chief judge was not a member of the panel,

[00:02:39] Speaker 04:
to hear the case, but there was confusion in the minds of counsel.

[00:02:47] Speaker 04:
Why do I say that on this issue?

[00:02:50] Speaker 04:
That is because there was a motion, a joint motion to clarify, to have the court clarify whether the local patent rules as they related to claim construction and as they related to infringement.

[00:03:06] Speaker 04:
contentions, whether those applied or not to the case.

[00:03:11] Speaker 03:
Why don't you direct your argument to the claims in relation to the accused activities?

[00:03:18] Speaker 03:
I mean, that's what the case is about.

[00:03:20] Speaker 04:
It is, but one of the issues was claim construction.

[00:03:28] Speaker 04:
Let me go right to where you're on her.

[00:03:31] Speaker 00:
Where did you tell the

[00:03:33] Speaker 00:
that claim construction was determinative of the outcome of the summary judgment motion?

[00:03:41] Speaker 04:
Did not say it was determinative.

[00:03:44] Speaker 04:
Did set forth in the response to the defendant's statement of undisputed facts in the section where ZETO LLC responded to that, they set out

[00:04:04] Speaker 04:
their contentions as to any number of these claim terms.

[00:04:10] Speaker 00:
Did you propose any constructions in response to the motion for summary judgment?

[00:04:15] Speaker 04:
We proposed in the response what was pointed out.

[00:04:20] Speaker 04:
We did not propose specific ones because the court had entered, and it's on page 175 of the appendix, the court had entered a clarificatory order

[00:04:33] Speaker 04:
as saying claim construction will come later, specifically had entered that order in response to a joint motion for clarification by council.

[00:04:47] Speaker 04:
And I would submit to the panel that had there been no

[00:04:54] Speaker 04:
issues of claim construction, it would have been pointless for counsel to be approaching the court and saying, Your Honor, tell us, does 805, claim construction, apply to this or not?

[00:05:10] Speaker 00:
Okay, but let's get to the summary judgment motion.

[00:05:13] Speaker 00:
In response to the summary judgment motion, did you say that with respect to the issues being addressed by the summary judgment, claim construction will impact

[00:05:23] Speaker 00:
the court's analysis of those issues.

[00:05:28] Speaker 04:
What we said, and I believe it was implicit in response, was what was said out in the response to the defendant's statement of undisputed facts.

[00:05:39] Speaker 00:
Right, and so what was that that you said?

[00:05:42] Speaker 04:
What we said was

[00:05:44] Speaker 04:
for the claim term reader identifier, it could be, and posited using the language of the patent, it could be such things as manual input.

[00:06:00] Speaker 04:
And that was specifically asserted in the response to the defendant's statement of undisputed facts.

[00:06:12] Speaker 00:
So what words were you asking the court to construe and what support did you give for the conclusion that it could cover manual input?

[00:06:21] Speaker 04:
We understood that claim construction pursuant to the judge's motion for clarification was to come later.

[00:06:29] Speaker 04:
So there was not, which was completely getting, as everyone recognizes, the court at the cards, I should say, before the horse.

[00:06:38] Speaker 04:
Because claim construction is the first thing, of course, that has to be addressed.

[00:06:43] Speaker 04:
in summary judgment infringement.

[00:06:46] Speaker 04:
And here, the court, the day before the briefing, it was January 31, entered a clarificatory order saying, we'll deal with claim construction later.

[00:06:58] Speaker 04:
It's explicitly what is said there.

[00:07:02] Speaker 04:
And that, I would submit, took away a requirement for there to be claim construction right then and there.

[00:07:13] Speaker 04:
Right then and there, and really it starts with the scheduling order, the case went off the rails in terms of the summary judgment that is before your honors.

[00:07:24] Speaker 04:
Went off the rails because the court was, in his mind, going to consider summary judgment of infringement without addressing the claim construction first.

[00:07:42] Speaker 04:
And that led to the issues there, as to the other issues, the fact disputes, as to the things that the court did address.

[00:07:56] Speaker 04:
The first point I would make is we come to the matter, first of all, of what time was this infringement alleged?

[00:08:07] Speaker 04:
It was alleged right from March 14.

[00:08:09] Speaker 04:
The court found that.

[00:08:11] Speaker 04:
The court and the defendants did not challenge

[00:08:15] Speaker 04:
the allegation in the complaint that there was not one system, but rather that there was a first system, that there was an interim system, and then there was a system two years after that in 2016.

[00:08:34] Speaker 04:
Did not address that.

[00:08:36] Speaker 04:
The significance of that is with that allegation, first of all, of a changing system.

[00:08:45] Speaker 04:
And with the court having found that the system was used from 2014, March of 2014, the only thing before the court from the defendants who had full access to everything was an affidavit, was a declaration of an employee who didn't start employment until June of 2015.

[00:09:11] Speaker 04:
spoke to not having knowledge before that, spoke to he understood things, or he I think understood was the word that he used.

[00:09:24] Speaker 04:
When I would submit, and we say it in our brief, cases where they had control of the witnesses, they had control of the device to not present any evidence

[00:09:41] Speaker 04:
And the burden, of course, in the first instance, was on them for non-infringement.

[00:09:46] Speaker 00:
Of course, you say that they had the burden of proving non-infringement.

[00:09:50] Speaker 04:
That's not true.

[00:09:51] Speaker 04:
I misspoke myself.

[00:09:54] Speaker 04:
They had the burden initially of coming forward.

[00:09:56] Speaker 00:
Of coming forward.

[00:09:57] Speaker 04:
Yes.

[00:09:58] Speaker 00:
And then it's your burden to say that at trial, under the standards that would be applicable at trial, that there is material issue fact with respect to that question.

[00:10:09] Speaker 04:
And I think that is really starkly illustrated in the way that the declaration of Mr. Zito was addressed both by the defendants and by the court.

[00:10:23] Speaker 04:
Nobody suggested that it was not on personal knowledge and should be stricken under rule 62.

[00:10:29] Speaker 00:
The court did specifically find that it was not corroborated.

[00:10:33] Speaker 00:
And the only corroboration you cited was the RPM manual.

[00:10:36] Speaker 00:
And the court went on at length to say why that doesn't actually corroborate.

[00:10:40] Speaker 04:
That was the court's view.

[00:10:42] Speaker 04:
I would submit that in taking the inferences in favor of the non-movement in this circumstance, that that was

[00:10:53] Speaker 04:
not appropriate.

[00:10:54] Speaker 04:
And secondly, it wasn't just that, Your Honor.

[00:10:57] Speaker 04:
There was also the Ripken patent application that was in the record before the court that also pointed to the fact that there were disputes.

[00:11:09] Speaker 04:
It really comes down, I submit, and really is brought home when one reads the language

[00:11:19] Speaker 04:
of the defendants and their opposition.

[00:11:21] Speaker 04:
Well, who's to say that Mr. Zito saw what he said?

[00:11:26] Speaker 04:
That sort of thing.

[00:11:28] Speaker 04:
Those are fact disputes, as this court and others have helped for the truth.

[00:11:33] Speaker 00:
Did you ask the court to delay the summary judgment ruling until you could conduct discovery on the accused product?

[00:11:40] Speaker 00:
No, there was no Rule 56F motion in this case, Your Honor.

[00:11:44] Speaker 04:
I see that I've gone into my rebuttal time, and so I'll defer.

[00:11:48] Speaker 04:
We will say the floor.

[00:11:50] Speaker 03:
Mr. Mandeaver.

[00:11:53] Speaker 02:
Good morning, Your Honors.

[00:11:54] Speaker 02:
William Mander on behalf of the Ripken defendants.

[00:11:57] Speaker 02:
May it please the court.

[00:11:58] Speaker 02:
I guess I'd like to start where the argument started, and that was that the client construction would come later.

[00:12:08] Speaker 02:
And I don't really understand that argument because, of course, in the summary judgment context, you have to construe the court.

[00:12:16] Speaker 02:
As the court noted, there was no requirement that the patent local rules be applied.

[00:12:23] Speaker 02:
There was an initial scheduling order where the judge made it very clear after we told him we think there's

[00:12:28] Speaker 02:
misunderstanding of the operation of the product that we want to file an early summary judgment motion the court granted it gave the but I mean there was to some extent a conclusion that that that the patent did not cover manual operation right

[00:12:44] Speaker 02:
by who, Your Honor?

[00:12:47] Speaker 02:
You say it doesn't cover?

[00:12:50] Speaker 00:
The RPM system you say in the summary judgment motion is that rather than the ZETO approach, the RPM system required an operator to select the appropriate parameters and routines and then input those.

[00:13:01] Speaker 00:
Yes, Your Honor, I mean we don't... So clearly there was some at least construction that the court had to undertake to say

[00:13:09] Speaker 00:
it did or didn't require those.

[00:13:11] Speaker 02:
Well, first of all, this issue of manual input, that's exactly what we do.

[00:13:17] Speaker 02:
The ZETO, their amended complaint indicated a couple of different versions, one of which said, talked about manual operation.

[00:13:28] Speaker 02:
So we addressed that.

[00:13:29] Speaker 02:
And as part of that contention, Zito had said that the keyboard could be the reader that's in the claims of all the patents.

[00:13:39] Speaker 02:
And we disputed that.

[00:13:42] Speaker 02:
Then in the opposition to summary judgment, that was just dropped.

[00:13:46] Speaker 02:
It was never raised again.

[00:13:47] Speaker 02:
In fact, when it came to the argument section of their summary judgment motion, Zito mentioned only the RFID bracelet and the RFID reader.

[00:13:57] Speaker 02:
So he just abandoned any

[00:14:00] Speaker 02:
suggestion that he was trying to read it on manual input.

[00:14:05] Speaker 02:
And that's what the court found.

[00:14:06] Speaker 02:
He said there was no claim constructions, the district court decision, no claim construction, and found there was no genuine issues of material fact.

[00:14:13] Speaker 02:
He found, as the court noted, that we do it very differently than the claims.

[00:14:18] Speaker 00:
We have the requirement... I guess what I'm trying to understand is if the conclusion ultimately on infringement is that you do it differently than the claims,

[00:14:26] Speaker 00:
doesn't the court at least have to analyze the claims to some extent to say you do it differently?

[00:14:32] Speaker 02:
Well, as the court noted in the decision, there were no claim disputes.

[00:14:36] Speaker 02:
We laid out exactly the requirements of the claims in our motion and the court concluded there was no claim construction issues, no disputes.

[00:14:46] Speaker 02:
We specifically said

[00:14:47] Speaker 02:
that all the claims of both patents require that there be a processor executing code based on read-in user information.

[00:14:58] Speaker 02:
And based on that read-in user information, the system is configured.

[00:15:01] Speaker 02:
That's not how we do it.

[00:15:02] Speaker 02:
That's what we set forth in our summary judgment motion.

[00:15:05] Speaker 02:
The way the RPM system works is rather than a processor executing code to configure the system, what the RPM system requires is an operator manually input

[00:15:17] Speaker 02:
the different parameters and the different configuration.

[00:15:20] Speaker 00:
But isn't it more accurate then to say that it's because if you're saying you're not covered by the claims and the other side is saying you are covered by the claims.

[00:15:31] Speaker 00:
There's clearly a claim dispute.

[00:15:32] Speaker 00:
Ultimately what the court concluded is that there wasn't a genuine issue of material fact because it was never fleshed out as it relates to what the words of the claims are.

[00:15:44] Speaker 02:
Again, the district court didn't think there was an issue as claim construction.

[00:15:49] Speaker 02:
They accepted the position that we set forth in our opening summary judgment brief.

[00:15:54] Speaker 01:
And the court – Right.

[00:15:55] Speaker 01:
Which was a certain conception of what the claims cover.

[00:15:58] Speaker 01:
And that conception excludes manual operation of such a system.

[00:16:04] Speaker 01:
And so, in that sense, you were putting forward a certain understanding of what those claims meant, and the judge accepted that understanding of the claims and then concluded that your accused system doesn't match that understanding of the claims.

[00:16:23] Speaker 01:
And in essence, though, this is all premised on a certain conception of what the claims mean, i.e.

[00:16:29] Speaker 01:
some version of a claim construction.

[00:16:31] Speaker 01:
Not a formal claim construction, but nevertheless a certain understanding of the claims.

[00:16:36] Speaker 01:
Isn't that right?

[00:16:37] Speaker 02:
Yeah, absolutely, Your Honor.

[00:16:38] Speaker 02:
The court understood the claims.

[00:16:41] Speaker 01:
But I guess your position is there was no dispute as to that particular understanding of the claims.

[00:16:47] Speaker 01:
That's correct.

[00:16:49] Speaker 01:
Which is to say that nobody at summer judgment disputed that the claims exclude some form of manual operation of the system.

[00:17:00] Speaker 01:
That's right.

[00:17:01] Speaker 01:
In order to launch the balls this way, that way.

[00:17:03] Speaker 02:
That's right, Your Honor.

[00:17:04] Speaker 02:
In fact, if you look at the argument section of ZETO's opposition to our summary judgment motion, they don't argue manual at all.

[00:17:13] Speaker 02:
They argue the configuration where the RFID bracelet and the RFID reader are used exclusively.

[00:17:19] Speaker 02:
It just doesn't talk about manual at all.

[00:17:22] Speaker 02:
There's some passing reference to manual, as counsel noted.

[00:17:26] Speaker 02:
But when it came to actually argue, there was really no consent.

[00:17:29] Speaker 02:
We would say that there was no real argument that

[00:17:32] Speaker 02:
the patent-covered manual input parameters.

[00:17:40] Speaker 02:
Let me talk about for a moment the different systems that counsel raised.

[00:17:45] Speaker 02:
He said there are three different systems.

[00:17:46] Speaker 02:
They raised this in their reply brief.

[00:17:50] Speaker 02:
And they base it on the different claim charts that are attached to the amended complaint.

[00:17:56] Speaker 02:
If you look at those three different versions that they claim, they're really just two configurations.

[00:18:02] Speaker 02:
The configuration where there's an RFID bracelet and an RFD reader, and those cases where the user information is simply input directly into the system without this RFID communication.

[00:18:16] Speaker 02:
That's it.

[00:18:17] Speaker 02:
That's the only version.

[00:18:18] Speaker 02:
And both of those versions were, I wouldn't even call them versions, they're the same RPM system, just configurations.

[00:18:25] Speaker 02:
Those both were fully addressed in our motion.

[00:18:28] Speaker 00:
So this idea that they were different versions... Can you submit any evidence, other than the RPM manual, that that's actually the way the system was operated during the relevant time period?

[00:18:37] Speaker 02:
So, Your Honor, we submitted the declaration of Mr. Stringfellow.

[00:18:42] Speaker 02:
He did come on in June of 2015.

[00:18:45] Speaker 02:
Mr. Zito claims he saw this – he observed this operation in late spring 2014.

[00:18:53] Speaker 02:
But Mr. – besides the RFP,

[00:18:57] Speaker 02:
There's the walk-through specification which also confirms it.

[00:19:02] Speaker 02:
All the documents that have been in this case confirmed that there's just one way that the system works.

[00:19:07] Speaker 02:
Their alleged complaint doesn't talk about different versions or there is this evolution of products.

[00:19:13] Speaker 02:
It's just one RPM system.

[00:19:15] Speaker 02:
They never took any discovery.

[00:19:17] Speaker 02:
They never took a deposition to try to establish that there was something different than just one RPM system.

[00:19:24] Speaker 02:
And to give that argument any kind of legs, you really have to give way to the ZETO declaration, which the court found was self-serving, lack of corroboration, and was conclusory.

[00:19:37] Speaker 02:
And if you read our summary judgment motion, when you read it and you come away, you understand the big argument of non-infringement is the fact that, no, we don't have a processor with code executing instructions to figure out this read-in user information.

[00:19:52] Speaker 02:
We manually input.

[00:19:53] Speaker 00:
That's one of the arguments, Your Honor.

[00:20:02] Speaker 02:
I mean, again, another big argument is the fact that the system, and we established this very clearly, never use user information to configure the system.

[00:20:13] Speaker 02:
It's just completely different things.

[00:20:14] Speaker 02:
We use it to take the results

[00:20:18] Speaker 02:
that come out of the system and we pair it with the players to give, for example, a leader's board.

[00:20:24] Speaker 02:
We'd never use the user information to figure out what parameters are necessary.

[00:20:28] Speaker 02:
That's the ZETO pattern.

[00:20:29] Speaker 02:
It's completely different from what our system is.

[00:20:40] Speaker 02:
Unless there's any further questions, I would not see the rest of my time.

[00:20:44] Speaker 03:
Thank you, Council.

[00:20:46] Speaker 03:
Mr. Archibald, has some rebuttal time left?

[00:20:49] Speaker 04:
Yes, but I don't believe I need to use it.

[00:20:53] Speaker 04:
I believe that the arguments of Council have demonstrated that... Thank you.

[00:20:56] Speaker 03:
The arguments, the case is submitted.