[00:00:12] Speaker 01:
Good morning, and may it please the court.

[00:00:14] Speaker 01:
The district court committed legal error in holding the claim term resembling a pan-fried bacon product indefinite.

[00:00:22] Speaker 01:
Before I get to the merits, I want to address the jurisdictional issue Hormel has raised.

[00:00:30] Speaker 01:
The court has jurisdiction over this appeal.

[00:00:33] Speaker 01:
The district court only agreed to consider Hormel's indefiniteness claim or indefinite motion.

[00:00:39] Speaker 01:
Because Hormel represented in writing, it would dismiss any remaining claims that a favorable indefiniteness ruling would, quote, end the case.

[00:00:52] Speaker 01:
The district court granted the summary judgment on June 24.

[00:00:56] Speaker 01:
Hormel could have immediately complied and filed a Rule 41C dismissal.

[00:01:05] Speaker 01:
In all events, two days later, HIP filed its notice of appeal.

[00:01:09] Speaker 01:
At that point in time, no genuine live issue remained in the case.

[00:01:15] Speaker 01:
The formal record then shows that HIP submitted an agreed proposed form of order on July 24, and the district court entered final judgment on July 25.

[00:01:28] Speaker 03:
Why don't you proceed to the merits of the case?

[00:01:30] Speaker 01:
Thank you, Your Honor.

[00:01:34] Speaker 01:
Returning to the merits, the complete intrinsic record alone

[00:01:39] Speaker 01:
demonstrates that the term provides sufficient guidance to a hypothetical person of ordinary skill in the art.

[00:01:47] Speaker 01:
The specification contains a wealth of detail.

[00:01:50] Speaker 01:
The prosecution history evidences that the term pan-fried bacon has an established meaning in the art and had that at the relevant time.

[00:02:02] Speaker 01:
The opinion says nothing about

[00:02:05] Speaker 01:
the prosecution history or much of the detail in the specification.

[00:02:09] Speaker 03:
Let's turn to the specification.

[00:02:13] Speaker 03:
Yes, Your Honor.

[00:02:14] Speaker 03:
According to the specification, resembling pan-fried bacon product is a function of texture, mouthfeel, bite, appearance, or color.

[00:02:24] Speaker 03:
But it doesn't specify how to measure any of those characteristics, what level of them must be achieved, or how many of them must be met.

[00:02:35] Speaker 03:
So am I missing something that's in the specification?

[00:02:38] Speaker 01:
Your Honor, I disagree with your premise.

[00:02:41] Speaker 01:
I don't believe that the specification says one has to focus analytically or quantitatively on the underlying

[00:02:54] Speaker 01:
organoleptic factors that together give pan-fried bacon its appearance in flavor and taste.

[00:03:05] Speaker 02:
Let me read you from the district, the court's opinion in Appendix 29.

[00:03:13] Speaker 02:
The court says, to your expert, and then if I just handed you two pieces of bacon and I said, tell me,

[00:03:21] Speaker 02:
Which one is microwave versus which one is pan-fried?

[00:03:25] Speaker 02:
You wouldn't be able to do that.

[00:03:28] Speaker 02:
You would want to know which process each was made by, right?

[00:03:31] Speaker 02:
The witness.

[00:03:33] Speaker 02:
It would be difficult from two single pieces of bacon to say this is like pan-fried and this is not like pan-fried.

[00:03:43] Speaker 01:
That, I think, Your Honor, highlights the point of disagreement.

[00:03:48] Speaker 01:
This case is not about one piece of bacon compared to another piece of bacon.

[00:03:54] Speaker 01:
The claims define an industrial-scale commercial product.

[00:04:00] Speaker 02:
We're talking about in the... Your expert repeatedly testifies

[00:04:04] Speaker 02:
that the expert cannot tell the difference.

[00:04:07] Speaker 01:
Well, the expert was being cross-examined by the court, questioned by the court about these underlying factors.

[00:04:16] Speaker 01:
Those aren't relevant.

[00:04:18] Speaker 01:
The expert had previously offered testimony at appendix page 8, 1018 and 1019, paragraphs 8 through 10 of his reply declaration that said those underlying

[00:04:34] Speaker 01:
organoleptic factors really are not relevant to the inquiry of whether industrial scale production resembles a pan-fried bacon product.

[00:04:48] Speaker 04:
Did you say 1018 to 1019?

[00:04:51] Speaker 01:
1018.

[00:04:51] Speaker 01:
And I apologize, because after, well, what happened, Your Honor, is I noticed that after page 1014, it's still the reply declaration.

[00:05:03] Speaker 01:
The page numbers got garbled.

[00:05:06] Speaker 01:
Paragraphs 8 through 10.

[00:05:10] Speaker 04:
I see.

[00:05:11] Speaker 04:
Okay, so this is marked some kind of odd sequence of symbols 30 and then 38.

[00:05:19] Speaker 04:
That didn't show up in the electronic record.

[00:05:24] Speaker 04:
So we're at page 4 of the reply declaration?

[00:05:29] Speaker 01:
That's correct.

[00:05:32] Speaker 01:
But the district court focused on the required quantified criteria for the underlying factors.

[00:05:48] Speaker 01:
That's not what the patent disclosed.

[00:05:53] Speaker 01:
Let me point out.

[00:05:55] Speaker 04:
Well, I guess there's a problem there.

[00:05:57] Speaker 04:
If you walk away from the organoleptic factors, and you say that those really aren't determinative, then how would I know that a particular piece of bacon is enough like pan-fried bacon in order that my device that produced that piece of bacon would infringe?

[00:06:19] Speaker 01:
Well, that would be the wrong comparison, Your Honor.

[00:06:22] Speaker 04:
Again, the claim... When you agree that pan-fried, having pan-fried bacon is a substantive limitation of the claim, right?

[00:06:30] Speaker 04:
Resembling a pan-fried bacon product is a substantive... So how would I know that a particular piece of bacon, or a group of pieces of bacon produced by my machine resemble pan-fried bacon?

[00:06:45] Speaker 01:
Here's how.

[00:06:46] Speaker 01:
First of all, we're talking about

[00:06:49] Speaker 01:
bacon slices that are input to a spiral oven at a rate of about 2.7 tons per hour.

[00:06:58] Speaker 01:
So we're not pulling one.

[00:07:00] Speaker 01:
We're talking about more of an oven.

[00:07:03] Speaker 04:
Suppose there is either one piece of bacon or 1,000 pieces of bacon.

[00:07:07] Speaker 04:
I still have to decide.

[00:07:10] Speaker 04:
This really is enough like pan-fried bacon that I'm infringing.

[00:07:14] Speaker 04:
or not, how do I make that determination?

[00:07:17] Speaker 01:
So several ways.

[00:07:19] Speaker 01:
First, the intrinsic record shows that pan-fried bacon is a term of art.

[00:07:25] Speaker 01:
Second, the exhibit... What does it mean?

[00:07:28] Speaker 01:
Well, it has, as the district court... Other than bacon, which is fried in a pan.

[00:07:33] Speaker 01:
Well, and we had that discussion for the district court, and what the district court

[00:07:38] Speaker 01:
said as his ruling is if it's not indefinite, I construe that have plain and ordinary meaning and nothing more.

[00:07:48] Speaker 01:
That's an appendix A 1925, 1926.

[00:07:53] Speaker 01:
But to continue, what the example does is it provides a point of comparison between bacon being made at 2.7 tons per hour against

[00:08:08] Speaker 01:
bacon that is pan-fried to 500 degrees for 2.5 minutes.

[00:08:14] Speaker 01:
And then the example says they are substantially the same.

[00:08:19] Speaker 01:
That is a point of comparison that a person of ordinary skill in the art would have in addition to understanding that

[00:08:31] Speaker 01:
the phrase pan-fried bacon is a term of art in the industry.

[00:08:35] Speaker 02:
If bacon is pan-fried at 500 degrees, does it matter how often it's turned?

[00:08:47] Speaker 01:
I suspect, Your Honor, the answer is

[00:08:51] Speaker 01:
It might matter not in a material way.

[00:08:57] Speaker 01:
Whether you leave it two and a half minutes on one side or the other, or you flip it every minute, there might be an infinitesimal difference, not a difference that a person of ordinary skill in the art would consider.

[00:09:14] Speaker 01:
Is there something in the record that tells us that?

[00:09:16] Speaker 01:
There is not on either side, because what the record shows is

[00:09:21] Speaker 01:
is the example which says the bacon is going to be pan-fried at 500 degrees Fahrenheit, two and a half minutes on one side, two and a half minutes on the other.

[00:09:34] Speaker 01:
So that's what the record shows.

[00:09:36] Speaker 01:
And then the record says, and if you compare that, compare those products to what you've been making in the example at 2.7 tons per hour,

[00:09:47] Speaker 01:
You are going to find they are substantially the same.

[00:09:51] Speaker 04:
But you're not limiting yourself, as I understand your position, at least before the district court, was you're not limiting yourself to example one.

[00:09:59] Speaker 04:
You don't say that example one is the definition of pan-fried bacon for purposes of this patent.

[00:10:05] Speaker 01:
Well, that's absolutely correct.

[00:10:07] Speaker 01:
It is a precise comparison.

[00:10:13] Speaker 01:
But not a restricting comparison.

[00:10:15] Speaker 01:
But not a restrictive comparison.

[00:10:17] Speaker 01:
Let me talk about some other comparisons.

[00:10:21] Speaker 01:
The summary of the invention, column two, lines 23 to 28, and then 32 to 34, talks about the range of colors that a product can have.

[00:10:39] Speaker 01:
But then it also says that the produced product does not have burned or blackened outer edges.

[00:10:45] Speaker 01:
and is much closer than a microwaved product to home-fried bacon.

[00:10:51] Speaker 01:
What this teaches a person of ordinary skill is a three-way qualitative comparison.

[00:10:59] Speaker 01:
And it also teaches the boundary that the inventive pan-fried bacon cannot have burned or blackened edges.

[00:11:13] Speaker 01:
Let me ask you a question.

[00:11:16] Speaker 04:
This is what's bothering me about this case.

[00:11:18] Speaker 04:
I'll lay it out for you.

[00:11:21] Speaker 04:
You and I are probably old enough, I suspect, to remember paint by numbers.

[00:11:27] Speaker 04:
You remember those games where you would color in the particular portions of the drawing and it would sure enough turn out to look kind of like a painting?

[00:11:36] Speaker 04:
Indeed.

[00:11:37] Speaker 04:
Okay.

[00:11:38] Speaker 04:
Suppose I come up with an improvement on paint by numbers and I say, if you follow this, you will produce a painting that looks like the Mona Lisa.

[00:11:49] Speaker 04:
And then I get a patent on that.

[00:11:52] Speaker 04:
And one of the terms is it has to look like the Mona Lisa.

[00:11:56] Speaker 04:
Now, how in the world am I going to be able to enforce that patent for indefiniteness if no one really knows how close it has to be to the Mona Lisa?

[00:12:08] Speaker 04:
I have a data point, the Mona Lisa itself, but I don't know how far away from the Mona Lisa you can go and still infringe.

[00:12:16] Speaker 04:
That's my problem.

[00:12:18] Speaker 04:
Why is this case different from mine?

[00:12:20] Speaker 01:
This case is different because, again, in addition to the one example,

[00:12:26] Speaker 01:
The bacon that we would be comparing is only compared if it meets claim limitations A through E. In other words, in order to be subject to the test of resembling a pan-fried bacon product, you first have to follow all the steps and then you decide you have the example, you have

[00:12:51] Speaker 01:
pan-fried bacon as a term of art.

[00:12:55] Speaker 01:
You have the qualitative comparison and the summary of the invention.

[00:13:00] Speaker 01:
And again, a person of ordinary skill in the art would be able to understand within the range of flexibility we have under current law whether it resembles

[00:13:20] Speaker 01:
And no one challenged resembling as being vague.

[00:13:25] Speaker 01:
The question was whether pan-fried bacon has meaning.

[00:13:35] Speaker 01:
The scope of resembling a pan-fried bacon product is very similar to the kind of cases this court deals with, with substantially or similar.

[00:13:48] Speaker 01:
And so there's quite a few data points.

[00:13:52] Speaker 01:
Let me also say, there's no question, if one looks at the Hormel extrinsic evidence and the color photos,

[00:14:04] Speaker 01:
Hormel has been marketing and showing comparisons and using the phrase pan-fried bacon, showing pictures.

[00:14:17] Speaker 01:
The reality is that a person of ordinary skill in the art would well understand, with the comparisons that are available, what resembles a pan-fried bacon product after it's gone through the

[00:14:33] Speaker 01:
Steps of process claims A through E. And what doesn't?

[00:14:37] Speaker 03:
You're well into your rebuttal, so I'm going to move you to the other side.

[00:14:42] Speaker 01:
Thank you, Your Honor.

[00:14:52] Speaker 00:
May it please the Court.

[00:14:53] Speaker 00:
I'd like to address two primary points.

[00:14:57] Speaker 00:
Well, I want to start with this.

[00:14:59] Speaker 00:
Certainly.

[00:15:00] Speaker 02:
You seem to argue lack of finality.

[00:15:03] Speaker 02:
Yes, Your Honor.

[00:15:05] Speaker 02:
And in its reply, HIP points to a letter from April 11, 2019, in Appendix 1133.

[00:15:16] Speaker 02:
Yes.

[00:15:18] Speaker 02:
In which, I assume this is Hormel, is it not?

[00:15:23] Speaker 02:
It is, Your Honor.

[00:15:25] Speaker 02:
To bring the case to finality, defendants agree that if the

[00:15:29] Speaker 02:
The court expedites consideration on the indefinite issues and grants judgment in defendant's favor on its invalidity counterclaim and HIP's claims.

[00:15:38] Speaker 02:
Defendants will dismiss the remaining inequitable conduct and correction of inventorship counterclaims and so on.

[00:15:47] Speaker 02:
Doesn't that wrap up the case?

[00:15:50] Speaker 00:
Your Honor, it certainly did not wrap up the case at the time.

[00:15:54] Speaker 00:
And it's explicit here, Your Honor.

[00:15:55] Speaker 00:
And that's, I think, the point is the parties understood, even back as far as April of 2019, that if the court issued an opinion finding the claims indefinite, then that is a partial summary judgment.

[00:16:11] Speaker 00:
And we agreed that if the court did that, we would then take steps to

[00:16:18] Speaker 00:
dismiss our claims so that final judgment could be entered.

[00:16:22] Speaker 00:
So even as early back as April of 2011, the parties understood that what the court was going to do.

[00:16:28] Speaker 00:
And you did that, of course.

[00:16:29] Speaker 00:
You dismissed.

[00:16:30] Speaker 00:
It took a while.

[00:16:31] Speaker 00:
It took a month.

[00:16:33] Speaker 00:
And in fact, what happened, Your Honor?

[00:16:35] Speaker 03:
How is this different than our case in E-Pass, which we followed a subsequent

[00:16:41] Speaker 03:
with the district court grants summary judgment of some of the claims there's an appeal and then the district court dismisses the remaining counterclaims and enters judgment and we hold premature notice appeal ripened when the judgment was entered and cured any defect

[00:16:58] Speaker 00:
I think the difference between EPAS in this case, Your Honor, is in EPAS, what the court did is it terminated the entire case, provided an appeal deadline so everyone had a reasonable belief that the case was over.

[00:17:11] Speaker 00:
And it was that judgment that was appealed from.

[00:17:15] Speaker 04:
In this case... But who had any doubt that the case was effectively over in this case given that you had agreed to dismiss?

[00:17:21] Speaker 04:
The judge understood that and the other party assumed that it would happen.

[00:17:25] Speaker 00:
The other party, in fact, after this happened, the partial summary judgment was entered.

[00:17:32] Speaker 00:
The appeal was immediately taken.

[00:17:35] Speaker 00:
And it was immediately taken for a reason, Your Honor.

[00:17:38] Speaker 00:
It wasn't because we don't have, as first tier points out, an inexperienced

[00:17:45] Speaker 00:
plaintiff with inexperienced trial counsel.

[00:17:47] Speaker 00:
They have very experienced trial counsel.

[00:17:50] Speaker 00:
And it wasn't a decision, the appeal wasn't filed because they thought it was final.

[00:17:54] Speaker 00:
The appeal was filed because they wanted to expedite this appeal because there's a parallel PTAB proceeding going on.

[00:18:00] Speaker 00:
So they wanted, and they in fact did, try to stay that appeal.

[00:18:04] Speaker 00:
So what they were doing was saying, let's crank this through as quick as we can.

[00:18:09] Speaker 02:
So we need a representation.

[00:18:11] Speaker 00:
Yes, and the week after they actually filed the appeal, within a week, we sent them a communication saying, that's not a final order.

[00:18:25] Speaker 00:
We need to work through and see if we can agree on a stipulation.

[00:18:31] Speaker 00:
It's at, I'll tell you, Your Honor, 13.

[00:18:34] Speaker 00:
It's at the back.

[00:18:37] Speaker 00:
It's at appendix 2335.

[00:18:48] Speaker 00:
And if you'll see on appendix 2335 towards the bottom of that, I say, Jerry, thanks for the letter.

[00:18:57] Speaker 00:
Go on.

[00:18:57] Speaker 00:
We wanted to raise another issue with you.

[00:18:59] Speaker 00:
We suspect the current appeal may be premature as the case was not final and no final judgment was entered.

[00:19:06] Speaker 00:
So basically, and then we provided them with a proposal.

[00:19:10] Speaker 00:
We spent almost a month having to negotiate that proposal, because one of the other elements that the court didn't deal with was the infringement element.

[00:19:17] Speaker 00:
How exactly was infringement gone?

[00:19:18] Speaker 00:
How could it come back?

[00:19:20] Speaker 00:
So we spent almost a month before we got the final judgment.

[00:19:22] Speaker 00:
So the idea is, even if they thought it was a final judgment when they filed it, which I don't believe they did,

[00:19:29] Speaker 00:
Clearly, within that month after we were negotiating all this, the court entered the final judgment we asked them to.

[00:19:37] Speaker 00:
And so the court had jurisdictional rules.

[00:19:41] Speaker 00:
And the jurisdictional rules say that you have to appeal from a final judgment.

[00:19:46] Speaker 00:
And Rule 4A2, as applied in the first year case, Your Honor,

[00:19:59] Speaker 00:
states that Rule 4A2 can save a premature appeal only when a district court announces a decision that would be appealable if immediately followed by entry of judgment.

[00:20:14] Speaker 00:
There's no way that partial summary judge of ruling, absent of certification under Rule 34, was a final judgment that could have been appealed.

[00:20:23] Speaker 00:
Everyone knew it, both before and after.

[00:20:27] Speaker 00:
They had the final judgment in their hand.

[00:20:30] Speaker 00:
They had experienced counsel.

[00:20:31] Speaker 00:
They chose not to slow the appeal down by filing a new appeal.

[00:20:36] Speaker 02:
OK, let's talk about me.

[00:20:37] Speaker 00:
Thank you, Your Honor.

[00:20:41] Speaker 00:
Your Honor, this was actually a great case for having an evidentiary hearing.

[00:20:49] Speaker 00:
Because what we learned from that evidentiary hearing, and I think what you recognize today is, despite the fact we're standing before you today, I certainly don't know, and I expect no one knows, what the standard is for an expert to apply to determine whether pan-fried bacon resembles it.

[00:21:07] Speaker 00:
It really doesn't matter, because the expert indicated

[00:21:10] Speaker 00:
Exactly, exactly.

[00:21:12] Speaker 00:
And that's what the good thing was when the judge finally got to ask his own questions of the experts.

[00:21:17] Speaker 00:
And their own expert couldn't find it.

[00:21:20] Speaker 00:
Our expert certainly explained that it is purely a subjective term.

[00:21:24] Speaker 00:
And while, in this case, it's really, really on all fours with the datamized case.

[00:21:30] Speaker 00:
Because what you had in both of those cases, where you had some parameters laid out in the past, but you had no way to define whether or not those parameters were met.

[00:21:40] Speaker 00:
And so just like datamize, this purely subjective term had no objective standard either within the patent, which both experts admit.

[00:21:50] Speaker 00:
The plaintiff's expert admits that there's no objective standard laid out for those terms.

[00:21:57] Speaker 00:
And there's nothing in the art he also admitted.

[00:22:00] Speaker 00:
Their own expert admitted that even in the art, there's no objective standard with regard to Hormel's own use of the term.

[00:22:08] Speaker 00:
Their expert was asked, well, how does Hormel apply it?

[00:22:11] Speaker 00:
He couldn't give a standard for Hormel's use either, because there is no standard, because this is purely subjective.

[00:22:19] Speaker 04:
Let me ask you a question that's just a little bit out of the set of issues that the parties have addressed.

[00:22:26] Speaker 04:
But when I first read the claim,

[00:22:28] Speaker 04:
it struck me that the resembling of pan-fried product sounded like preamble type language rather than substantive limitation type language.

[00:22:38] Speaker 04:
Now, both parties have agreed that it is a substantive requirement.

[00:22:42] Speaker 04:
Is that because without that language being a substantive limitation, there would be invalidity problems with this claim?

[00:22:49] Speaker 00:
Well, I think there certainly are invalidity problems with the claim regardless of that issue, Your Honor.

[00:22:55] Speaker 04:
What I'm trying to get at is because

[00:22:59] Speaker 04:
is not a substantive limitation of the claim, then the problem goes away.

[00:23:05] Speaker 04:
The problem of indefiniteness, right?

[00:23:09] Speaker 00:
If that original order was different, we wouldn't have gone on to address

[00:23:15] Speaker 00:
the indefiniteness issue.

[00:23:16] Speaker 04:
Right.

[00:23:16] Speaker 04:
But what I'm saying is that you would agree with me, I think, that in many circumstances, someone would be arguing that that language is really preamble language and not limiting, and that the limiting language shows up in A, B, C, D, and E of the claim, right?

[00:23:33] Speaker 00:
Well, I can't attest to what people strategically would argue.

[00:23:37] Speaker 04:
If you were in that position as a patent lawyer and you looked at this and you said, oh, boy, if we have to deal with pan-fried bacon,

[00:23:44] Speaker 04:
as a claim limitation, we're going to have a problem.

[00:23:49] Speaker 04:
And therefore, it looks like preemptive type limitation.

[00:23:53] Speaker 04:
That's a judgment that you might well reach, don't you think?

[00:23:56] Speaker 00:
I guess I can't speculate that on your own.

[00:24:00] Speaker 03:
I think the point is... I know from the record that this was added during prosecution to overcome prior art.

[00:24:09] Speaker 00:
The limitation while it was added during prosecution, that's correct.

[00:24:12] Speaker 00:
It did not overcome the prior art.

[00:24:15] Speaker 00:
They continued to give projections.

[00:24:17] Speaker 04:
But the intent, you think, was to overcome prior art.

[00:24:20] Speaker 00:
Again, I can't speculate on the intent.

[00:24:23] Speaker 00:
I think the key here is, regardless of that decision and what happened with that decision... We all agree that it is something of a connection.

[00:24:29] Speaker 00:
It's water under the bridge, Your Honor.

[00:24:31] Speaker 00:
And I don't think this court either has the jurisdiction given the scope of the notice of appeal or should, even if it had jurisdiction, address that.

[00:24:41] Speaker 00:
Because that's a separate issue.

[00:24:43] Speaker 00:
That order was never appealed.

[00:24:44] Speaker 00:
Only this order was.

[00:24:48] Speaker 00:
I think the other point, unless you have any further questions on that issue, I'll go back to the indefiniteness issue.

[00:24:56] Speaker 00:
And I think the other point I just raised in response to my friend

[00:25:01] Speaker 00:
is that with regard to the example, as he noted, as you questioned, the example at its best presents one data point.

[00:25:12] Speaker 00:
He admits it doesn't provide the contours of the claim.

[00:25:16] Speaker 00:
And just as in data bias, you can have an example.

[00:25:20] Speaker 00:
And unless, especially with purely subjective terms, unless you have something to bound that with substantial evidence, like the cases that have

[00:25:32] Speaker 00:
found that terms were not indefinite within the specifications themselves.

[00:25:38] Speaker 00:
There was sufficient data, many examples provided that helped guide one of ordinary skill in the art.

[00:25:45] Speaker 02:
I think you're being generous when you say at its best, but I'm just puzzled why you want to send this back down to the district court.

[00:25:53] Speaker 02:
I don't want to send it back down to the district court.

[00:25:54] Speaker 02:
Are you saying it's indefinite?

[00:25:56] Speaker 02:
prematurely appealed.

[00:25:59] Speaker 04:
Your argument, I take it, is that the appeal has been waived altogether.

[00:26:02] Speaker 00:
Correct, Your Honor.

[00:26:03] Speaker 00:
We would ask that this appeal be dismissed and the case be final.

[00:26:08] Speaker 00:
We're not in any way asking that it be returned to the district court and, in fact, believe we would just be right back up here if that were to happen.

[00:26:17] Speaker 00:
You would with a 54B certification.

[00:26:20] Speaker 00:
Well, but I think the point is the case is over.

[00:26:22] Speaker 00:
And there was no appeal from that judgment.

[00:26:25] Speaker 00:
So we don't think that any remand is available.

[00:26:28] Speaker 00:
They couldn't go back and appeal.

[00:26:30] Speaker 00:
But regardless, Your Honor, if you're inclined to address the merits of this case, we certainly understand that.

[00:26:36] Speaker 00:
We think we are very strong on the merits.

[00:26:38] Speaker 04:
And let me ask one more question along the lines of Dick DeWallace's question.

[00:26:44] Speaker 04:
And that is, you mentioned earlier with respect to the dismissal issue that there was

[00:26:52] Speaker 04:
through with respect to the proposed order of dismissal.

[00:26:57] Speaker 04:
I think you said something.

[00:26:59] Speaker 04:
And I'm looking at the proposed order of dismissal and entry of judgment.

[00:27:03] Speaker 04:
And two of the three paragraphs simply saying judgment is entered against the plaintiff because of the indefinite.

[00:27:12] Speaker 04:
And the other paragraph simply says defendants first counterclaim for inequitable conduct and third counterclaim for correction of inventorship are dismissed.

[00:27:23] Speaker 04:
pursuant to the terms of the letter of the court.

[00:27:25] Speaker 04:
That doesn't sound very complicated to me.

[00:27:27] Speaker 04:
You're just doing exactly what you said you would do in the April letter.

[00:27:30] Speaker 04:
Why did that take a month, a letter of appeal?

[00:27:33] Speaker 00:
Well, Your Honor, because that last paragraph is exactly that.

[00:27:37] Speaker 00:
What was it that we actually agreed to do in that letter?

[00:27:40] Speaker 00:
And we went back and forth?

[00:27:43] Speaker 00:
on how that was to be interpreted in terms of if there was a remand, for example, exactly what claims we continued to have.

[00:27:52] Speaker 00:
And so we negotiated that.

[00:27:53] Speaker 00:
And that's where you got a simple result in the end, which was we said in the R.A.

[00:27:59] Speaker 00:
April letter what we said and basically left the decision of how that was going to be interpreted in terms of how any claims that were dismissed came back in the case.

[00:28:23] Speaker 00:
Your Honor, I think in conclusion that the other point that we haven't talked about, but obviously this court is extremely well aware of this, is not only did the court get it right, but we are here under a standard review, and based on the court's decision, its firsthand look at testimony, its credibility determinations of the witnesses, that we're here not just to say, was the court right or was the court wrong, but we're here to say,

[00:28:51] Speaker 00:
Did the court clearly err in coming to its conclusions?

[00:28:53] Speaker 04:
Well, in indefiniteness, it's sort of like the Teva principle, right?

[00:28:59] Speaker 04:
It's a question of law for the court, which is apply the legal standard.

[00:29:05] Speaker 04:
And only if there are factual issues that are attendant to that determination does the clear error standard apply, right?

[00:29:14] Speaker 00:
That's right, Your Honor.

[00:29:16] Speaker 04:
So that would apply, for example,

[00:29:18] Speaker 04:
to the assessment of the expert's credibility type decisions, but it strikes me not much else in the case has the clear error standard, right?

[00:29:28] Speaker 00:
But the majority of this case, because there is no standard, objective standard within the four corners,

[00:29:35] Speaker 00:
The majority of the case is about evaluating what each of the experts believed was the state-of-the-art.

[00:29:41] Speaker 00:
In fact, HIPPS' own counsel stated that this isn't the typical case where you can just sort of on the four corners of the patent decide whether there's an indefiniteness issue.

[00:29:53] Speaker 00:
And it's important, particularly here, to have expert testimony.

[00:29:57] Speaker 00:
That's an appendix 1893 to 95.

[00:30:00] Speaker 00:
And so this court went out of its way to have a full day testimonial hearing in order to understand these experts, not just on paper, but in writing.

[00:30:12] Speaker 00:
And he made those credibility determinations.

[00:30:13] Speaker 00:
And Your Honor, you're correct that if you look at his credibility determinations and you look at those for clear error, you look at what he decided based on that testimony.

[00:30:23] Speaker 00:
Did he clearly come to the wrong factual conclusions of what the state of the art is?

[00:30:27] Speaker 00:
And then the question is, which you can look at, De Novo, based on those findings, did the district court properly conclude?

[00:30:37] Speaker 00:
Thank you, unless the court has any further questions.

[00:30:49] Speaker 01:
Very briefly, Your Honors.

[00:30:51] Speaker 01:
I asked the court to take a look at appendix page 64, docket entry 142, and what the district court entered, their order granting motion for summary judgment, patent invalid.

[00:31:10] Speaker 01:
Then in all capital letters, case closed.

[00:31:14] Speaker 01:
That was June 24, 2019, very much like the Pendle case.

[00:31:22] Speaker 04:
What entry is that?

[00:31:23] Speaker 01:
It's 142 on Appendix 64.

[00:31:38] Speaker 04:
You know, I'm sure, that normally those words, case closed, are put in by the clerk, not by the judge.

[00:31:45] Speaker 01:
I do understand that, Your Honor, but that's the record that we had to work with.

[00:31:52] Speaker 01:
And it's consistent with how the district court understood it at the time.

[00:32:00] Speaker 01:
Judge Bryson, you'd asked a question about standard of review in the line of demarcation.

[00:32:05] Speaker 01:
And what I would suggest is that TIVA and Sonics drew a nuanced line that separates

[00:32:14] Speaker 01:
the kind of extrinsic evidence where the judge talked about underlying factual questions.

[00:32:24] Speaker 01:
But the judge erred as a matter of law in relying on conclusory allegations.

[00:32:32] Speaker 01:
And the judge's own findings on ultimate issues, objective, subjective, are entitled to no deference at all.

[00:32:42] Speaker 01:
I do submit that the record, when it's fairly reviewed, has a comparison, has guidance from the two embodiments and the specification, has qualitative comparisons in the summary.

[00:32:58] Speaker 01:
The inventive process is much closer, to use its language, to pan-fried bacon than to microwave bacon.

[00:33:06] Speaker 01:
And a person of ordinary skill in the art would understand this.

[00:33:11] Speaker 01:
given, that's shown by Hormel's own extrinsic records.

[00:33:16] Speaker 01:
Does the court have any questions?

[00:33:18] Speaker 03:
No.

[00:33:18] Speaker 03:
Thank you.

[00:33:19] Speaker 03:
Thank you.