[00:00:00] Speaker 01:
Okay, thank you.

[00:00:01] Speaker 01:
The next case is number 19, 1746, Ford Global Technologies against New World International.

[00:00:10] Speaker 01:
Mr. Oak.

[00:00:14] Speaker 03:
Thank you, Your Honor.

[00:00:16] Speaker 03:
Good morning, and may it please the Court.

[00:00:20] Speaker 03:
The summary judgment of infringement is irrelevant.

[00:00:23] Speaker 04:
Mr. Oaks, this is Judge Wallach.

[00:00:26] Speaker 04:
I have some questions for you.

[00:00:28] Speaker ?:
Okay.

[00:00:29] Speaker 04:
In the red brief at 15, Ford states of inconsistent drawings and descriptions argument that you, quote, appear to be arguing that is what is labeled a side view should have been labeled a top, bottom, or front view, close quote.

[00:00:51] Speaker 04:
Is that your argument?

[00:00:56] Speaker 03:
Well, that's an argument that we were precluded from making because of the claim construction.

[00:01:04] Speaker 03:
But under proper claim construction, when the written description is imported into the claim, as it should have been, you can argue inconsistencies between the drawings and the written descriptions if they create uncertainty under the Nautilus test.

[00:01:27] Speaker 04:
So, Your Honor, you are arguing that what is labeled a side view should have been labeled a top, bottom, or front view.

[00:01:36] Speaker 03:
Well, again, we were precluded from making that argument due to the claim construction, but that certainly would have been an argument that would have been available to us.

[00:01:49] Speaker 04:
Counsel.

[00:01:50] Speaker 04:
Yes.

[00:01:51] Speaker 04:
Judge Talks, you stop.

[00:01:55] Speaker 04:
Understand?

[00:01:56] Speaker 04:
Yes, sir.

[00:01:57] Speaker 04:
All right.

[00:01:58] Speaker 04:
So the answer is, that is what you're arguing.

[00:02:01] Speaker 04:
You can't say, I'm precluded, or you would say, no, I don't have any argument here.

[00:02:09] Speaker 03:
Well, yes, I do believe that creates an inconsistency and is a basis for indefiniteness when there's an inconsistency between the written description and the drawings.

[00:02:25] Speaker 04:
OK.

[00:02:25] Speaker 04:
Be some judgment.

[00:02:27] Speaker 04:
That inconsistency, according to you, is labeling side as opposed to top, bottom, or front.

[00:02:38] Speaker 04:
That's your position.

[00:02:40] Speaker 03:
Well, that's one of our positions.

[00:02:42] Speaker 03:
There's a lot of other things that create indefiniteness in these patents, but that certainly would contribute to it.

[00:02:49] Speaker 03:
Stop.

[00:02:53] Speaker 04:
I'm only asking you about that one position.

[00:02:56] Speaker 04:
Now I'm going to ask you another question.

[00:03:00] Speaker 04:
In the red brief at 15, Ordez says that you argue that, quote, some parts link numbers corresponded to a part that did not match the part covered by an infringed patent.

[00:03:21] Speaker 04:
but that none of the patents you mentioned are at issue in this appeal.

[00:03:26] Speaker 04:
What possible relevance does your argument about patents that are not at issue in this appeal have to this appeal?

[00:03:35] Speaker 03:
Because the patents that I refer to that are not in this appeal are in the table, and they destroy the assumption

[00:03:46] Speaker 03:
that Ford relies upon to create actual notice from the table.

[00:03:52] Speaker 03:
The only thing that that table is good for is determining what parts will fit into the automobile.

[00:04:01] Speaker 03:
It's not good for a specific accusation of infringement.

[00:04:06] Speaker 03:
That does not hold up along all the lines.

[00:04:09] Speaker 03:
In fact, the very first line does not support that assumption.

[00:04:13] Speaker 03:
And since there is not a specific accusation of infringement,

[00:04:17] Speaker 03:
of a specific patent by a specific part, you do not have actual notice.

[00:04:23] Speaker 04:
Okay.

[00:04:23] Speaker 04:
Turning to the indefiniteness issue, Ford argues in the red brief at 19 that you forfeited any argument about Matita because you didn't mention it at the charging conference and that you didn't argue that it contains a different standard than Nautilus.

[00:04:46] Speaker 04:
Did you make any arguments before the district court in any involving Matita?

[00:04:51] Speaker 04:
And if so, please provide me with a site.

[00:04:56] Speaker 03:
Mentioned in the brief is that we moved for a continuance.

[00:05:01] Speaker 03:
As this trial was approaching, the Matita decision was decided.

[00:05:06] Speaker 03:
And it appeared to change the test for indefiniteness by engrafting the ordinary observer test onto indefiniteness.

[00:05:16] Speaker 03:
We said if the standard is going to change, we need new expert reports, we need new discovery with regard to the prior audit, which affects the ordinary observer test.

[00:05:29] Speaker 03:
The district court ruled that in Ray Matisa did not apply to this case.

[00:05:33] Speaker 03:
But I believe that's something this court can review because indefiniteness is a matter of law.

[00:05:40] Speaker 03:
that is reviewed on a de novo standard.

[00:05:43] Speaker 03:
And it can be decided based on the intrinsic evidence alone in this case.

[00:05:47] Speaker 03:
So that is an issue this court can review.

[00:05:50] Speaker 04:
OK.

[00:05:51] Speaker 04:
Turning to your spoliation instruction argument, in the blue braids at 72, did you raise the argument that the instruction needed to be permissive rather than mandatory before the district court?

[00:06:05] Speaker 04:
And if so, give me a second.

[00:06:08] Speaker 03:
We objected to the jury instruction, not on that specific basis, but we objected to it and we believe we are now entitled to make that argument.

[00:06:24] Speaker 04:
That answers my question.

[00:06:25] Speaker 04:
Okay.

[00:06:28] Speaker 04:
One last set of questions.

[00:06:29] Speaker 04:
In the blue brief at 57, you raise an enablement challenge.

[00:06:36] Speaker 04:
That is you say,

[00:06:37] Speaker 04:
This testimony indicates that the design patent was not enabled under 112.

[00:06:44] Speaker 04:
Beside the testimony you point to on page 57 of your brief, did you argue the design patents were not enabled before the district court?

[00:06:57] Speaker 03:
That statement was in the pretrial order.

[00:07:02] Speaker 03:
In En Rey Matita, this court says that enablement and indefiniteness are basically the same question in design patents.

[00:07:12] Speaker 04:
Did you seek a jury instruction on enablement?

[00:07:15] Speaker 03:
No.

[00:07:16] Speaker 04:
Did you raise this issue in your JMOL motion?

[00:07:21] Speaker 03:
I don't believe we did, no.

[00:07:23] Speaker 03:
We argued, as Enri Matita states, you can argue indefiniteness and enablement under the general rubric of indefiniteness.

[00:07:33] Speaker 03:
And that's what we did.

[00:07:35] Speaker 03:
Okay.

[00:07:35] Speaker 03:
Thank you, counsel.

[00:07:37] Speaker 03:
You're welcome.

[00:07:39] Speaker 03:
Returning to the issue of infringement, this summary judgment should be reversed because the district court failed to properly apply the ordinary observer test in its analysis.

[00:07:52] Speaker 03:
and it improperly decided contested issues of fact.

[00:07:57] Speaker 03:
The district court never compared the patented and accused designs to the eyes of a purchaser of the accused products and never made any findings or conclusions in that regard.

[00:08:10] Speaker 03:
Rather, the order relies heavily upon the testimony of New World's own expert and the fact that it starts off with a discussion of the testimony.

[00:08:18] Speaker 03:
But that testimony cannot support summary judgment of infringement for several reasons.

[00:08:25] Speaker 03:
As a preliminary matter, the testimony relied upon has been corrected and explained under Rule 30E with sufficient justification.

[00:08:34] Speaker 03:
So the corrections should be considered.

[00:08:37] Speaker 03:
And as such, they raise issues of fact.

[00:08:40] Speaker 02:
But even if the corrections are not considered... Council, but the law is very clear that

[00:08:46] Speaker 02:
You can't use the correction mechanism to actually completely change an A to a B or a yes to a no.

[00:08:57] Speaker 02:
I mean, he's completely changing his testimony and the court had the right to conclude that that was not an appropriate correction.

[00:09:09] Speaker 03:
I disagree with that, Your Honor.

[00:09:11] Speaker 03:
Under Rule 30E, you're allowed to make changes in substance or in form.

[00:09:18] Speaker 02:
For instance, the transcript failed to include a word that it should have included, or I misspoke with respect to calling it singular instead of plural.

[00:09:31] Speaker 02:
But to say my testimony is XYZ and now it's the opposite of XYZ is not

[00:09:38] Speaker 02:
a correction within the meaning of that rule?

[00:09:42] Speaker 03:
Your Honor, I disagree.

[00:09:43] Speaker 03:
I think under Rule 30E, you can make changes in substance, and what the courts do is simply allow the jury to see both versions and to decide as a matter of fact.

[00:09:55] Speaker 03:
Now, there are some cases out there from the Third Circuit that talk about an abuse of discretion, but even if we apply that standard in this case, which I don't think it should be, but even if we do,

[00:10:08] Speaker 03:
It is an abuse of discretion not to consider it because there's sufficient justification.

[00:10:14] Speaker 03:
And I go through that in the brief.

[00:10:16] Speaker 03:
There are frequent shifts in the topics between multiple standards.

[00:10:20] Speaker 03:
The questions are ambiguous.

[00:10:22] Speaker 03:
Importantly, the conflict created by the declaration was already in the deposition.

[00:10:29] Speaker 03:
For example, immediately after the question and answer that the order refers to regarding substantially the same,

[00:10:36] Speaker 03:
The expert testified that he considered all the ornamental features in the design patents and found them not to be substantially similar.

[00:10:46] Speaker 03:
That's immediately after this question and answer.

[00:10:49] Speaker 03:
So this testimony conflicts with how the order interprets the preceding answer and supports the expert's correction and explanation that he misunderstood the question.

[00:10:59] Speaker 03:
Secondly, the question itself refers to a single claim

[00:11:04] Speaker 03:
It says claim designs and the court had to change that in its opinion to add an ED to make it make any sense.

[00:11:12] Speaker 03:
But you've got to stick with the original question.

[00:11:15] Speaker 03:
So which claim is it?

[00:11:16] Speaker 03:
That's not clear and it presents an issue of fact.

[00:11:20] Speaker 03:
So when the court is interpreting these questions and answers,

[00:11:25] Speaker 03:
It's drawing inferences in Ford's favor, which it's not permitted to do on summary judgment.

[00:11:31] Speaker 03:
Then a second set of questions and answers are referred to on Appendix 11481 and 11482.

[00:11:39] Speaker 03:
Here the experts referring back to earlier answers he gave regarding only the 552 patent

[00:11:45] Speaker 03:
and the accused headlamp where he answered in terms of substantial similarity.

[00:11:51] Speaker 02:
The judge pointed to several concessions that he made.

[00:11:55] Speaker 02:
This wasn't just one off-the-cuff statement that he quickly corrected.

[00:12:00] Speaker 02:
The court pointed to several places in which your expert confirmed that these were the same designs.

[00:12:11] Speaker 03:
Well, I'm addressing the only two places that are referred to in the order.

[00:12:15] Speaker 03:
In the first one, only one claim is referred to.

[00:12:19] Speaker 03:
That's ambiguous.

[00:12:20] Speaker 03:
We don't know which one.

[00:12:21] Speaker 03:
In the second set, if you read it carefully, and again, the judges has used this testimony to support summary judgment over all 13 design patterns.

[00:12:31] Speaker 03:
So it's got to be specific, and it's not.

[00:12:34] Speaker 03:
He's referring, if you look carefully on this substantial similarity,

[00:12:39] Speaker 03:
What the expert is doing, he's referring back to an earlier question where he answered in terms of substantial similarity and that they could be virtually identical.

[00:12:49] Speaker 03:
He never states, he never states that they were substantially the same, which is the test.

[00:12:55] Speaker 02:
And I'll also note... He said, didn't he specifically say that he was referring to the ordinary observer test?

[00:13:02] Speaker 03:
No.

[00:13:02] Speaker 03:
He did not, not on these questions.

[00:13:05] Speaker 03:
That standard was never used, never a part of these questions.

[00:13:09] Speaker 03:
He was not asked to consider it in light of the prior art, and he was not asked what an ordinary observer would consider.

[00:13:17] Speaker 03:
The proper standard was not used.

[00:13:20] Speaker 03:
I'll also note on these questions is that these questions referred to the 552 patent and the accused product.

[00:13:30] Speaker 03:
These are the ones referred to in the jury note where the jury did not want to find willful infringement because they thought the accused product was inconsistent with the design patent.

[00:13:41] Speaker 03:
So that certainly supports the expert's interpretation of these questions and answers in the fact that the judge had to resolve contested issues of fact in order to support these.

[00:13:59] Speaker 03:
Am I in my rebuttal time?

[00:14:02] Speaker 03:
I haven't heard the time.

[00:14:03] Speaker 01:
We'll save you rebuttal time, but let's make sure.

[00:14:05] Speaker 01:
Any more questions at the moment from the panel?

[00:14:08] Speaker 01:
Judge O'Malley?

[00:14:10] Speaker 02:
I do have one question before you sit down, and that is that you argue that the defendants shouldn't have been treated as one collective entity, but in the pretrial order and in the proposed verdict form,

[00:14:28] Speaker 02:
Didn't you treat them as one collective entity yourself?

[00:14:35] Speaker 03:
Well, Your Honor, they're separate entities.

[00:14:37] Speaker 02:
Come on, yes, you could just say yes or no.

[00:14:40] Speaker 03:
Well, I believe that the pretrial order may have treated them as collective entity, but that's not the governing issue on the judgment.

[00:14:52] Speaker 03:
The governing issue on the judgment.

[00:14:53] Speaker 02:
Well, there has to be a manifest error of law.

[00:14:56] Speaker 02:
Was it in, in your proposed verdict form that way?

[00:14:59] Speaker 03:
Uh, no, no, the verdict form only was absolutely expressly limited to new world only.

[00:15:08] Speaker 03:
It did not include auto lighthouse or UCC.

[00:15:12] Speaker 02:
Because you had, you had treated them as one collective entity and discussed them as one collective entity in front of the jury.

[00:15:19] Speaker 02:
Right.

[00:15:20] Speaker 03:
No, because counsel for Ford expressly made the decision not to include them in the verdict form.

[00:15:30] Speaker 01:
Okay.

[00:15:31] Speaker 01:
Okay.

[00:15:32] Speaker 01:
We'll ask.

[00:15:33] Speaker 01:
All right.

[00:15:33] Speaker 01:
Judge Wallach, any questions at the moment?

[00:15:36] Speaker 04:
No, thanks.

[00:15:37] Speaker 01:
Okay.

[00:15:38] Speaker 01:
We'll save the full rebuttal time, and let's hear from the other side, the sales rep.

[00:15:43] Speaker 00:
Good morning, and may it please the court... Proceed.

[00:15:49] Speaker 00:
Thank you.

[00:15:49] Speaker 00:
Thank you, Your Honor.

[00:15:50] Speaker 00:
Good morning, and may it please the Court, Jessica Ellsworth for Ford Global Technologies.

[00:15:56] Speaker 00:
None of the 15 issues raised by the appellants here has merit, and many of them are waived, as this Court's questions have indicated.

[00:16:05] Speaker 00:
The evidence showed that New World infringed the patents, and a reasonable jury could have returned the verdict it did on definiteness, willfulness, and damages, among other issues.

[00:16:19] Speaker 00:
beginning with the infringement question that my counsel on the other side argued to you.

[00:16:24] Speaker 00:
He focused on an errata that was submitted by his declaration, by his expert after the summary judgment ruling had occurred.

[00:16:34] Speaker 00:
And I think it is important in noting that that submission to the district court was not made until after the summary judgment ruling occurred.

[00:16:43] Speaker 00:
This really was sort of an act of gamesmanship by New World.

[00:16:48] Speaker 00:
In their opposition to summary judgment, they tried to submit a declaration to see if that would be enough and have their experts say he was confused.

[00:16:59] Speaker 00:
They didn't submit the errata until after the district court had ruled and found that that declaration couldn't be used to give inconsistent testimony.

[00:17:10] Speaker 00:
Your Honor noted Judge O'Malley, there were numerous statements made by New World's expert throughout this deposition that support the district court's ruling.

[00:17:20] Speaker 00:
Judge Godby was well aware of those statements and recited a number of them in his decision.

[00:17:26] Speaker 00:
He also looked at 30 pages of side-by-side comparisons of the accused product and the patented designs.

[00:17:35] Speaker 00:
And you can see that in the appendix laid out in the summary judgment briefing at 5486,

[00:17:40] Speaker 00:
to 5516.

[00:17:43] Speaker 00:
And he noted in his ruling that New World didn't contest that side-by-side comparison.

[00:17:50] Speaker 00:
All of this evidence was sufficient to give the district court the authority it needed to decide that no reasonable jury could return a verdict of non-infringement based on this evidentiary record.

[00:18:04] Speaker 00:
As the court has noted, the notice issues

[00:18:08] Speaker 00:
were one for the jury to decide, and there was sufficient evidence for each of the 13 patents at issue that there was notice.

[00:18:17] Speaker 00:
The indefinite argument about Matita was not raised at the time of the jury instructions.

[00:18:25] Speaker 00:
It was not raised in the 50A motion.

[00:18:27] Speaker 00:
And even if it were preserved, New World hasn't told you why it would matter.

[00:18:34] Speaker 02:
What do we do with the fact that the jury

[00:18:38] Speaker 02:
didn't think that there was substantial similarity with respect to at least one of the products.

[00:18:45] Speaker 00:
So Your Honor, for one thing, the jury wasn't instructed on what the standard is for infringement.

[00:18:50] Speaker 00:
And I think that's particularly important because the jury not knowing that the standard is one of substantially the same and not knowing what testimony

[00:19:06] Speaker 00:
New World's expert had given under oath asked that question.

[00:19:10] Speaker 00:
But those are two very key absences in the information that was presented to the jury.

[00:19:15] Speaker 00:
And so I don't think there can be anything read into that.

[00:19:19] Speaker 00:
No, it's exactly as Judge Godby noted.

[00:19:23] Speaker 00:
He could see why New World would move for reconsideration, but the evidentiary record on that legal question remained the same as it was at summary judgment.

[00:19:32] Speaker 00:
And for that reason,

[00:19:33] Speaker 00:
He saw no reason to question his summary judgment ruling.

[00:19:37] Speaker 01:
How can the jury decide infringement of a design patent without comparing them?

[00:19:45] Speaker 01:
When you say the jury wasn't instructed on the legal standard, they certainly were told that this was a question of infringement of a document with drawings.

[00:19:59] Speaker 01:
Was that how it was presented?

[00:20:02] Speaker 00:
So Your Honor, they were told that the court had determined that the patents were infringed if they were valid.

[00:20:08] Speaker 00:
So the jury was asked to make a determination of indefiniteness.

[00:20:13] Speaker 00:
And then if it found that the patents, that New World had not proved invalidity, then it was to determine if damages were appropriate and what those damages would be.

[00:20:24] Speaker 00:
And there was extensive damages testimony put on.

[00:20:28] Speaker 00:
There was an extensive argument about notice that was made to the jury.

[00:20:32] Speaker 00:
And the jury was within its discretion to conclude that there was notice and also that the infringement was willful.

[00:20:41] Speaker 00:
There was a lot of testimony about kind of backdoor sales and asking to pay for cash and deleting inventory records, all sorts of things.

[00:20:52] Speaker 00:
that could have led the jury to reasonably conclude willfulness was a proper finding, notice was properly found, and then the indefiniteness was also for the jury to reach that factual determination.

[00:21:06] Speaker 00:
And on that, I think it's important to note that Coucher in his testimony to the jury explained on cross-examination that many of the things he'd identified as differences were just variations in perspective.

[00:21:20] Speaker 00:
And he told the jury, I've only been instructed to look for differences.

[00:21:24] Speaker 00:
And he told the jury that he could resolve all of the differences that he had identified.

[00:21:30] Speaker 00:
You could see examples of this in the appendix at 11198, 11194, 11210 to 218, 11240 to 250.

[00:21:40] Speaker 00:
I could go on.

[00:21:42] Speaker 00:
There was extensive evidence supporting the jury's verdict.

[00:21:46] Speaker 02:
I have a question, again, going back to the infringement.

[00:21:50] Speaker 02:
One of the things that concern me is that it seems like that even if we accept the fact that the New World expert admitted certain things and didn't have the right to unadmit them or pull them back, it seemed like the judge was treating those admissions almost like

[00:22:14] Speaker 02:
judicial admissions that are binding and determinative, rather than simply an evidentiary admission that gets weighed with all the other factors.

[00:22:24] Speaker 02:
Am I reading that wrong?

[00:22:28] Speaker 00:
I think you might be reading a little bit too much into the weight that he gave it.

[00:22:32] Speaker 00:
The judge stated the ordinary observer test, and then he went through and explained why New World's experts

[00:22:44] Speaker 00:
testimony that there was substantial similarity between the accused products and the forward products, between the accused products and the patented designs was

[00:22:55] Speaker 00:
sufficient to preclude there from being a disputed factor.

[00:22:58] Speaker 00:
There was really nothing to weigh on the other side, because what New World had attempted to offer was its expert.

[00:23:07] Speaker 00:
But its expert at deposition had really folded, in a sense, and agreed extensively that all of the ornamental aspects of these patents could be found in the

[00:23:20] Speaker 00:
He agreed that they were substantially the same twice.

[00:23:27] Speaker 00:
And he agreed that the visually dominant aspects of the patented designs were all found in the product and that they differed from the prior art.

[00:23:37] Speaker 00:
So when you combine those statements by the witness with the 30 pages of side-by-side comparisons, and you can see this at appendix page 80,

[00:23:48] Speaker 00:
where the court said a simple side-by-side comparison confirms that they're substantially the same.

[00:23:53] Speaker 00:
New World did not dispute the accuracy of these side-by-side comparisons.

[00:23:57] Speaker 00:
In a sense, that second piece is like this court's decision in the Crocs case, where it did something similar.

[00:24:05] Speaker 00:
It did a side-by-side comparison, and in comparison after comparison, the two products looked nearly identical.

[00:24:12] Speaker 00:
And that was enough for this court, actually in that case, to reverse.

[00:24:15] Speaker 00:
an ITC decision finding that they had been different.

[00:24:19] Speaker 00:
So when you have the expert testimony from the defendant's own expert, and then you have the side-by-side comparison, I mean, there just wasn't any other evidence to weigh on New World's side.

[00:24:34] Speaker 00:
If your honors have no further questions, we ask that this court affirm the judgment below.

[00:24:41] Speaker 01:
Okay, any more questions, Ms.

[00:24:43] Speaker 01:
Elford?

[00:24:43] Speaker 01:
Ms.

[00:24:43] Speaker 01:
Judge O'Malley?

[00:24:44] Speaker 04:
No, I'm fine.

[00:24:45] Speaker 01:
Thank you.

[00:24:46] Speaker 01:
Judge Wallach?

[00:24:47] Speaker 04:
I actually have one.

[00:24:48] Speaker 04:
OK.

[00:24:49] Speaker 04:
In the gray brief at 24, New World says it didn't have to raise enablement at trial.

[00:24:55] Speaker 04:
And your friend on the other side went into this at some length.

[00:25:01] Speaker 04:
I'd just like a response on that, please.

[00:25:04] Speaker 00:
Certainly, Your Honor.

[00:25:05] Speaker 00:
I think his argument is based on the fact that Inrei Matita said the two sometimes go hand in hand.

[00:25:11] Speaker 00:
But the fact that the two sometimes go hand in hand

[00:25:14] Speaker 00:
isn't a freebie to avoid asking for a jury determination of invalidity based on lack of enablement and to come in after the fact and say, oh, these patents weren't enabled.

[00:25:28] Speaker 00:
They didn't ask the jury to decide that question.

[00:25:31] Speaker 00:
They didn't ask the jury to be instructed on that question.

[00:25:34] Speaker 00:
And that was not enough to preserve what is a separate and distinct basis for finding invalidity.

[00:25:42] Speaker 01:
Okay.

[00:25:43] Speaker 01:
Anything else, Judge Wilek?

[00:25:44] Speaker 04:
No, thank you.

[00:25:45] Speaker 01:
Okay.

[00:25:47] Speaker 01:
Thank you, Ms.

[00:25:48] Speaker 01:
Ellsworth.

[00:25:49] Speaker 01:
Mr. Oaks, you have your rebuttal time.

[00:25:52] Speaker 03:
Yes, thank you, Your Honor.

[00:25:53] Speaker 03:
First, as a factual matter, it's not true that the declaration was filed after the summary judgment was granted.

[00:26:00] Speaker 03:
The declaration from the expert was filed in the response to the summary judgment, and it was within the 30-day period for corrections, and it was

[00:26:10] Speaker 03:
Because of that, because the deposition was taken so close to when Ford filed its summary judgment.

[00:26:17] Speaker 03:
But the important point, overriding point here, both on infringement and indefiniteness, this case illustrates the importance of applying the correct standards in a design patent case.

[00:26:30] Speaker 03:
The correct standard was not applied, because Gorham versus White, you've got to do the comparison to the eyes of the purchaser.

[00:26:40] Speaker 03:
And that was not done here.

[00:26:42] Speaker 03:
And that would have made a critical difference because in this case, the purchaser is a purchaser of repair parts and is trying to return the vehicle back to its original appearance.

[00:26:54] Speaker 03:
Therefore, the ordinary observer purchaser is highly discerning.

[00:27:00] Speaker 03:
That is something that has been admitted by Ford in the ITC action.

[00:27:05] Speaker 03:
When you talk about the side-by-side comparison that the court made,

[00:27:10] Speaker 03:
The court.

[00:27:11] Speaker 04:
Well, this is Judge Wallace.

[00:27:13] Speaker 04:
Yes.

[00:27:14] Speaker 04:
Were these parts manufactured by your client laser copy?

[00:27:24] Speaker 03:
Yes.

[00:27:25] Speaker 03:
But you do not.

[00:27:26] Speaker 03:
I'm sorry.

[00:27:28] Speaker 04:
Go ahead.

[00:27:29] Speaker 04:
What does that imply?

[00:27:31] Speaker 04:
What's a laser copy?

[00:27:33] Speaker 03:
It's an exact copy of the commercial parts.

[00:27:40] Speaker 03:
But of course, in an infringement analysis, you do not compare commercial part to accused part.

[00:27:46] Speaker 03:
You compare it to the design patents.

[00:27:48] Speaker 03:
And in this case, there are substantial differences.

[00:27:51] Speaker 03:
I mean, if you look at appendix 6036 to 6037, you're comparing the headlamp in figure three.

[00:27:58] Speaker 03:
There's a round top to the lens.

[00:28:01] Speaker 03:
And in the accused part, there's a flat top.

[00:28:03] Speaker 02:
But your own expert specifically said that Ford's parts

[00:28:08] Speaker 02:
were the same as what's depicted in the designs.

[00:28:11] Speaker 02:
And then you turn around and make exact copies of Ford's parts.

[00:28:16] Speaker 02:
No.

[00:28:17] Speaker 03:
The court resolved the disputed issue of fact.

[00:28:22] Speaker 03:
On that question and answer, it only refers to one claim.

[00:28:26] Speaker 03:
And also, it didn't include the standard.

[00:28:29] Speaker 03:
It's not clear that he was answering in terms of what an ordinary observer would believe.

[00:28:34] Speaker 03:
A designer awarding a skill only compares part to accused patent.

[00:28:38] Speaker 03:
Under the proper test, you're really looking at four different things.

[00:28:42] Speaker 03:
You're looking at design patent claim, you're looking at accused part in light of the prior art, which was not done, and you're also referring back to the original part.

[00:28:52] Speaker 03:
So you're really looking at four things in the analysis.

[00:28:56] Speaker 03:
The questions were not directed to that, to the proper comparison.

[00:29:03] Speaker 03:
Finally, there is no finding or conclusion by the district court that a purchaser would have considered these to be substantially the same.

[00:29:14] Speaker 03:
And without that statement, this summary judgment is fundamentally defective, doesn't apply the right standard.

[00:29:20] Speaker 03:
and cannot stand.

[00:29:22] Speaker 03:
And if it falls, then the judgment on damages and willful infringement and attorney's fees, that must fall as well.

[00:29:31] Speaker 01:
Any more questions for Mr. Oak?

[00:29:34] Speaker 01:
Judge O'Malley?

[00:29:36] Speaker 02:
No, thank you.

[00:29:37] Speaker 01:
Thank you.

[00:29:38] Speaker 01:
Judge Wallach?

[00:29:39] Speaker 02:
Thank you.

[00:29:44] Speaker 01:
Okay, thank you.

[00:29:45] Speaker 01:
The case is taken under submission.