[00:00:00] Speaker 00:
Start again with the case 1922-86, Levy Holdings, LLC, against Chung.

[00:00:07] Speaker 00:
Mr. Chadwick.

[00:00:08] Speaker 04:
Thank you very much, Your Honors.

[00:00:10] Speaker 04:
May it please the Court?

[00:00:12] Speaker 04:
The jury below improperly held that one, Mr. Chung, was personally... Mr. Chadwick, this is Judge Wallach.

[00:00:21] Speaker 03:
In the blue brief, there's a long list of what you state are issues.

[00:00:27] Speaker 03:
For example, at Issue 7,

[00:00:30] Speaker 03:
you say that it's whether the jury's verdict that 36,453 units infringed is against the clear weight of the evidence when the evidence of record is that only 8,689 units were sold after the asserted patent was issued.

[00:00:49] Speaker 03:
How is that different than issue three, which says whether substantial evidence supports the jury's verdict that

[00:00:58] Speaker 03:
36,453 units infringed when the evidence of record is that only 8,689 units were sold after the asserted patent had issued.

[00:01:12] Speaker 03:
My concern is a lot of this stuff seems to me to be duplicative.

[00:01:16] Speaker 03:
Am I wrong?

[00:01:18] Speaker 04:
You're not wrong, Your Honor, and I apologize for any confusion from the long statement of issues.

[00:01:24] Speaker 04:
That was really designed to reflect the different issues raised

[00:01:28] Speaker 04:
in the denied JMOL motion, the denied Rule 59A motion, and the denied Rule 59E motion, and to reflect the different standards of review at the district court for those different motions, even though there are overlapping issues raised in those motions.

[00:01:45] Speaker ?:
OK.

[00:01:46] Speaker 01:
Thank you.

[00:01:47] Speaker 01:
Mr. Chadwick, in footnote one of the red brief, there's a reference to the fact that the corporation

[00:01:57] Speaker 01:
here was not served, and yet the judgment was entered against the corporation.

[00:02:05] Speaker 01:
That's an error that has to be corrected, right?

[00:02:11] Speaker 04:
Certain companies and entities were included at parties, but the company for which there was evidence of any sales of accusing products was not a party, and there is no judgment against that party.

[00:02:25] Speaker 04:
And that's really one concern that we have is that the individual was found liable for infringement.

[00:02:32] Speaker 01:
I understand.

[00:02:33] Speaker 01:
We can get to that in a moment.

[00:02:34] Speaker 01:
But so you're saying that there was no judgment ended against deep vapes?

[00:02:43] Speaker 04:
My understanding is that there was a judgment against deep vapes, but they are not a party to this appeal and are not challenging that verdict.

[00:02:50] Speaker 01:
But they were never served, right?

[00:02:56] Speaker 01:
I am not aware, actually.

[00:02:58] Speaker 01:
I apologize.

[00:03:00] Speaker 01:
Okay.

[00:03:00] Speaker 01:
All right.

[00:03:00] Speaker 01:
Well, why don't you go ahead and talk about the personal liability of Mr. Chung?

[00:03:08] Speaker 04:
There were no jury instructions as to induced infringement or piercing the corporate veil.

[00:03:14] Speaker 04:
So to find Mr. Chung liable for direct infringement, there needed to be substantial evidence in the record that he personally made, sold, offered, or imported the product.

[00:03:26] Speaker 04:
He consistently testified through trial that it was his company.

[00:03:29] Speaker 04:
His company was the moving force.

[00:03:34] Speaker 04:
His company was the one that sold.

[00:03:35] Speaker 04:
His company was the one that effectuated the sales.

[00:03:38] Speaker 04:
And the only evidence of sales was by his company, Esquire Distribution, with the sales summary.

[00:03:44] Speaker 04:
So for the jury to find him personally liable is unsupported by substantial evidence.

[00:03:50] Speaker 04:
And the district court, in its order denying the JMOL and the other post verdict

[00:03:55] Speaker 04:
motions on this point did not identify any evidence that the jury could have relied on to find him personally liable.

[00:04:06] Speaker 04:
Beyond the infringement, there are issues with the damages verdict.

[00:04:11] Speaker 04:
First off, the damages verdict finds that sales made before the issuance of the 284 patent infringed the 284 patent.

[00:04:22] Speaker 04:
Again, the only evidence of any sales of products

[00:04:25] Speaker 04:
of accused products as that appendix 105.3 and 105.4.

[00:04:31] Speaker 04:
The first page of that document shows sales made, all sales made during a broad timeframe.

[00:04:41] Speaker 04:
And the second page shows all sales made after

[00:04:45] Speaker 04:
the issue of the 284 patent.

[00:04:46] Speaker 00:
Well let me ask you, was the jury instructed that they were not to consider the earlier sales?

[00:04:56] Speaker 00:
I didn't see that argument that this was stated in the arguments to the

[00:05:02] Speaker 00:
to the jury that not all of these sales could be viewed as infringing.

[00:05:10] Speaker 00:
It was discussed that even in closing argument to the jury.

[00:05:14] Speaker 00:
It was the total numbers that were argued by counsel.

[00:05:21] Speaker 00:
And I didn't see where there was some sort of clear statement and instruction that, no, you have to draw a line.

[00:05:33] Speaker 04:
Jury instruction number five states the 271A description that infringement is only during the term of the patent, but there is no instruction to really limit the damages to only post issuance of the patent.

[00:05:48] Speaker 04:
And you're correct, Your Honor.

[00:05:50] Speaker 04:
During closing argument, Lovey's counsel stated that all products infringed in violation of this 271A, but there was no corrective instruction asked to limit the damages.

[00:06:05] Speaker 00:
Okay, proceed.

[00:06:07] Speaker 00:
As I understand, Mr. Chen actually testified.

[00:06:12] Speaker 00:
In the course of his testimony, was the relationship between him and his company as sole stockholder and president, whatever his title was, was that brought out before the jury?

[00:06:25] Speaker 04:
There was testimony before the jury that he was president

[00:06:32] Speaker 04:
sole owner of the company.

[00:06:34] Speaker 04:
But again, there was no alter ego claim made at trial, no instruction.

[00:06:39] Speaker 04:
And he consistently testified that sales went through his company, that his company ran the website, but also that his company had employees, other employees beyond him, other people that made decisions.

[00:06:56] Speaker 01:
Well, so their theory was we've held in WordTech and other cases that

[00:07:02] Speaker 01:
An individual corporate officer can't be liable for acting on behalf of the corporation where there's no piercing of the corporate veil.

[00:07:11] Speaker 01:
So the question here is whether the testimony would support a conclusion that Mr. Chang acted in his personal capacity as opposed to acting as a corporate officer in making these sales.

[00:07:24] Speaker 01:
Could you address whether the record shows that he made any sales in his personal capacity?

[00:07:33] Speaker 04:
And you're right, Your Honor, that's really the only legal theory left.

[00:07:36] Speaker 04:
And there is not substantial evidence to that effect.

[00:07:38] Speaker 04:
The only evidence of sales is an Esquire distribution sales summary at appendix 105.3 and 105.4.

[00:07:46] Speaker 04:
And the jury may choose to disregard his testimony that all sales go through his company.

[00:07:52] Speaker 04:
The jury may choose to disregard the existence of his company, but they cannot then conclude without evidence, without testimony,

[00:08:02] Speaker 04:
that these were therefore made personally by Mr. Chung outside the scope of his company or

[00:08:11] Speaker 04:
by himself personally.

[00:08:13] Speaker 00:
Do you say that's forbidden or is that a question with a factual basis that the jury can weigh in terms of liability and looking at the assets?

[00:08:27] Speaker 00:
I don't recall whether they asked whether the corporation had any assets to pay the damages or whatever else might have

[00:08:38] Speaker 00:
gone through a jury's mind, but was there any attempt by either side to join his company as a party?

[00:08:50] Speaker 04:
There was no attempt to join the company.

[00:08:52] Speaker 04:
So the company was not able to defend itself or to establish its assets and corporate formalities.

[00:08:59] Speaker 00:
How can it defend itself if it's not charged with anything?

[00:09:05] Speaker 04:
Well, precisely.

[00:09:07] Speaker 04:
You're correct, Your Honor.

[00:09:10] Speaker 04:
And there was no evidence of anything other than the company's sale of the accused products.

[00:09:22] Speaker 00:
Well, there was evidence of sale and of ownership.

[00:09:26] Speaker 00:
Are you saying that that's no evidence or what?

[00:09:32] Speaker 04:
I'm saying there is only evidence of sales by the company.

[00:09:35] Speaker 04:
And for the jury to attempt to pierce the corporate veil when one, there was no instruction given, two, there was also in post-judgment briefing, Levy admitted that it did not pursue an alter ego theory because it believed it could find liability under an inducement theory.

[00:09:54] Speaker 04:
So for the jury to have performed some sort of ad hoc alter ego analysis to find the president and owner of Esquire liable,

[00:10:04] Speaker 04:
should be reversed.

[00:10:06] Speaker 01:
Where do we find that statement in the post trial briefing by Lubbe that they weren't pursuing a Pearson corporate bail theory?

[00:10:16] Speaker 04:
That's going to be in their opposition to the rule 59A motion.

[00:10:22] Speaker 04:
And that will be on appendix page 1133.

[00:10:30] Speaker 04:
where they say this issue was never raised because alter ego and piercing the corporate veil analysis is not even the correct standard by which personal liability from patent infringement was found in the context of this case.

[00:10:42] Speaker 04:
They then go on to cite international manufacturing, which of course found the officer liable for induced infringement and not for direct infringement.

[00:10:55] Speaker 04:
Okay.

[00:10:57] Speaker 04:
Beyond this,

[00:11:00] Speaker 04:
There are issues with the marking, with compliance with Section 287.

[00:11:06] Speaker 04:
Chung raised this issue multiple times to the court and identified specific unmarked patented articles.

[00:11:12] Speaker 04:
There was no evidence provided at trial that there was any compliance with the marking.

[00:11:18] Speaker 04:
And yet, when the jury instructions were read,

[00:11:23] Speaker 04:
He objected to the lack of 287 instructions.

[00:11:26] Speaker 04:
That was overruled by the court, raised this issue multiple times in post verdict briefing, and still, Lubbe has not provided evidence that they complied with this, with their burden under Arctic Cat.

[00:11:37] Speaker 04:
And I'd like to reserve the rest of my time for a rebuttal.

[00:11:40] Speaker 00:
Any more questions for Mr. Chadwick?

[00:11:43] Speaker 00:
Out.

[00:11:43] Speaker 00:
Okay.

[00:11:44] Speaker 05:
Bedwellock, no.

[00:11:46] Speaker 00:
Okay.

[00:11:46] Speaker 00:
Let's hear from Mr. Callaway.

[00:11:49] Speaker 05:
Thank you, Your Honor, and may it please the court

[00:11:52] Speaker 05:
In this appeal, Mr. Chung is out there.

[00:11:54] Speaker 01:
How could there be individual liability by Mr. Chung since there was no inducement theory, no theory of piercing the corporate veil?

[00:12:03] Speaker 01:
And we've specifically held in WordTech and other cases that a corporate officer isn't liable personally for doing the corporation's business.

[00:12:16] Speaker 05:
Well, in this case, Your Honor, the corporation was never shown to exist.

[00:12:21] Speaker 05:
So what you effectively have is Mr. Chung's bare testimony, alibi testimony, if you will, that another actor was responsible for infringement.

[00:12:29] Speaker 05:
And yet, his own testimony at appendix 770, 763, 796, and 786 showed that he himself made the decision to infringe, that he himself told him.

[00:12:45] Speaker 01:
The testimony says that he did it as a corporate officer.

[00:12:49] Speaker 01:
which we have specifically held is not sufficient for direct infringement liability.

[00:12:57] Speaker 05:
So, the cases in which that's true involve a corporate defendant that's part of the case and that is stipulated through the pleadings to exist and to be a party that can shield an individual from liability.

[00:13:13] Speaker 05:
But again, in this case, what you have.

[00:13:15] Speaker 01:
What evidence is there in the record that the company didn't exist?

[00:13:20] Speaker 01:
Well, there's no evidence that the company did not exist.

[00:13:24] Speaker 01:
And Mr. Chung said he made the sales for the company, right?

[00:13:29] Speaker 01:
He did say that at one point.

[00:13:30] Speaker 05:
Yet at another point, Appendix 772, he was asked, can you confirm it says Conceal A, that's the infringing product, on the front page of your website?

[00:13:39] Speaker 05:
Answer, yes.

[00:13:41] Speaker 05:
On the second page, is that a sales page for Conceal A product on your website?

[00:13:45] Speaker 05:
Correct.

[00:13:46] Speaker 05:
Is that $15 the price that you sold it for on your website?

[00:13:50] Speaker 05:
Correct.

[00:13:50] Speaker 05:
And he confirms at 763 that he designed the product.

[00:13:59] Speaker 05:
He says at 786 that the sales spreadsheet at appendix 1053 was the complete number of sales that he had done regarding Conceal A and Conceal B. But he says repeatedly in here that he did this on behalf of the corporation.

[00:14:15] Speaker 01:
Where does he say that he did it personally and not on behalf of the corporation?

[00:14:22] Speaker 05:
He never says the words I did it personally, but his addendum that it's on behalf of the corporation is something that the jury can believe or not believe.

[00:14:31] Speaker 05:
And on substantial evidence, the jury had multiple admissions by Mr. Chung that he sold, he offered for sale, he designed, this was on his website, independent of any action by Esquire or any umbrella of liability protection by Esquire.

[00:14:48] Speaker 01:
Well, I'm still struggling as to where,

[00:14:51] Speaker 01:
The burden of proof is on you.

[00:14:54] Speaker 01:
And there are all these statements.

[00:14:58] Speaker 01:
For example, on 769, so when the company sells it, you're selling through the company.

[00:15:03] Speaker 01:
Correct.

[00:15:05] Speaker 01:
All the promotions were done through the company.

[00:15:10] Speaker 05:
Right.

[00:15:11] Speaker 05:
And so we have to ask, can his alibi testimony, in that instance, transform this case where he's a defendant

[00:15:20] Speaker 05:
who's liable for his own infringement, can it transform that case into a case where a non-party is suddenly shielding him from liability?

[00:15:31] Speaker 05:
And the answer to that is no, that he was shown to infringe, the jury heard substantial evidence consistent with his infringement.

[00:15:40] Speaker 05:
They heard other evidence where he said, I did all of this on behalf of the corporation, but they were not obligated to credit that testimony.

[00:15:49] Speaker 01:
The problem is the burden of proof is on you to establish that he made the personal sale.

[00:15:56] Speaker 05:
And based on the sites that I read, we feel we've met that burden on substantial evidence, that he sold on his own behalf, that the jury could reasonably conclude the sales were made on his own behalf.

[00:16:09] Speaker 01:
And you agree that you had to show that the sales were made on his own behalf and not for the corporation, right?

[00:16:15] Speaker 05:
I do agree with that.

[00:16:16] Speaker 05:
I will add, because we jumped right into this, that Chung waived any argument that the jury improperly pierced or that the evidence of his infringement was not sufficient.

[00:16:25] Speaker 05:
He never raised these.

[00:16:26] Speaker 01:
Wait a moment.

[00:16:28] Speaker 01:
You said in your post-trial briefing you're not relying on piercing the corporate veil.

[00:16:32] Speaker 01:
You're not relying on that here today, are you?

[00:16:35] Speaker 01:
No, no, of course.

[00:16:36] Speaker 05:
What I'm saying is that Chung waived

[00:16:39] Speaker 01:
the argument about alter ego, and he waived an argument that... What evidence does it make whether he waived argument about alter ego?

[00:16:46] Speaker 01:
You never made an argument about alter ego.

[00:16:49] Speaker 05:
Well, he now makes the argument that he should be shielded by alter ego liability.

[00:16:53] Speaker 05:
That argument was not in his rule 50A motion.

[00:17:04] Speaker 05:
Regarding the timing of infringing sales,

[00:17:08] Speaker 05:
Again, the question of when sales were made was not raised in Chung's Rule 50A motion.

[00:17:16] Speaker 05:
So we introduced Exhibit 201, that's Appendix 1053, the sales spreadsheet without any objection.

[00:17:23] Speaker 05:
Chung himself testified to Exhibit 1053 and testified that he had made the sales reflected on 1053.

[00:17:31] Speaker 05:
Chung's counsel never cross-examined him on that sales spreadsheet, never raised it in his case in chief,

[00:17:37] Speaker 05:
never argued about it in closing argument.

[00:17:41] Speaker 05:
This whole argument that... The problem again is that you have the burden of proof.

[00:17:46] Speaker 01:
Where's the proof that these sales on the first page were made before or after the patent was issued when the second page says they weren't?

[00:17:57] Speaker 05:
There's overlap, Your Honor, between Chung's sales period on that page 1053 and the patent term.

[00:18:03] Speaker 05:
So the sales spreadsheet shows 36 some odd thousand sales

[00:18:07] Speaker 05:
between March of 16 and February of 18.

[00:18:11] Speaker 05:
Now, the patent issued September 5th of 2017.

[00:18:13] Speaker 05:
There are months of overlap, okay, between that first sale spreadsheet and the patent term.

[00:18:21] Speaker 05:
So Chung didn't object to that evidence.

[00:18:24] Speaker 05:
We argued to the jury that all those sales... The patent date shows the sales made after the patent issue, right?

[00:18:30] Speaker 05:
It purports to show sales made after the patent issue.

[00:18:32] Speaker 05:
Chung argues that those sales

[00:18:34] Speaker 05:
should be subtracted from the first page, but the jury was never told that.

[00:18:38] Speaker 05:
No one ever testified to that second page.

[00:18:40] Speaker 05:
He now argues on appeal that that second page represents the only sales that were made after issuance.

[00:18:48] Speaker 05:
But in fact, the jury never heard that.

[00:18:50] Speaker 05:
The jury saw two pages of a spreadsheet, which in interpreting that spreadsheet, you could determine that those two pages should be added to each other, that they perhaps represented sales for different regions of the country,

[00:19:04] Speaker 05:
that they represented sales of different types, what have you.

[00:19:08] Speaker 05:
What page of the appendix of these sales figures at?

[00:19:13] Speaker 05:
1053, Your Honor, and 1054.

[00:19:16] Speaker 05:
So this is a fact issue, Your Honor, where we

[00:19:32] Speaker 05:
showed the jury and Chung testified about that first page that shows 36,453 sales.

[00:19:40] Speaker 05:
The jury was confronted with an overlap between that sales period and the term of the patent.

[00:19:46] Speaker 05:
And.

[00:19:47] Speaker 05:
When did the patent issue?

[00:19:48] Speaker 05:
The patent issued on September 5th of 2017.

[00:19:56] Speaker 05:
Okay.

[00:19:57] Speaker 01:
Page 1054 shows sales from September 6th.

[00:20:02] Speaker 01:
the next day through the end of the period, right?

[00:20:07] Speaker 05:
So that's what the document says.

[00:20:09] Speaker 05:
Now, Chung would have you believe that that second page shows the only sales and all of the sales that were made after the patent issued.

[00:20:18] Speaker 05:
But these are queries to a database, and we don't know what those queries were.

[00:20:21] Speaker 05:
No one testified to them.

[00:20:23] Speaker 05:
So it would be easy for the jury to look at this and say... The sales data you relied on from page

[00:20:31] Speaker 01:
1053 was sales data that included sales before the patent issued, right?

[00:20:36] Speaker 05:
Well, there's nothing that says that sales occurred before the patent issued.

[00:20:40] Speaker 05:
All you have is a range.

[00:20:42] Speaker 05:
March 1, 2016, which is before the patent issued, right?

[00:20:47] Speaker 05:
Right.

[00:20:48] Speaker 05:
You have a broad range of dates during which sales were made, but you have no granularity as to when sales were made in that range.

[00:20:56] Speaker 05:
So that becomes a jury question.

[00:20:57] Speaker 05:
When were those sales made?

[00:20:59] Speaker 05:
The jury could have concluded, hey, those sales were made before the patent issued.

[00:21:03] Speaker 05:
You get no damages.

[00:21:04] Speaker 05:
They in fact did not.

[00:21:05] Speaker 05:
And they decided that the sales were made after the patent issued.

[00:21:09] Speaker 05:
Now on substantial evidence, the grant of a JMAW is proper only where the evidence construed in the light most favorable to the non-moving party permits only one reasonable conclusion.

[00:21:21] Speaker 05:
And that conclusion is contrary to the jury's verdict.

[00:21:23] Speaker 05:
That's not this case because you have months of overlap.

[00:21:26] Speaker 05:
I think five months of overlap.

[00:21:28] Speaker 05:
between that sales item summary at 1053 and the term of the patent and it's a classic jury question.

[00:21:35] Speaker 05:
How many of those sales fell within the term of the patent?

[00:21:37] Speaker 05:
How many of those sales should we attribute to damages?

[00:21:41] Speaker 05:
They could have said zero and instead they said all and there's substantial evidence for that decision just as there would be substantial evidence for any other breakdown of the dates of those sales because

[00:21:53] Speaker 01:
Let me ask you a different question here.

[00:21:56] Speaker 01:
In footnote one, you say that Deep Veins was never served, yet a judgment was entered against them, correct?

[00:22:03] Speaker 05:
Not correct.

[00:22:04] Speaker 05:
We don't say, it's not my understanding that Deep Vapes was never served.

[00:22:08] Speaker 05:
We say in footnote one that another company owned by Chung, Deep Vapes, Inc., DBA Boom Vaporizer, was a defendant.

[00:22:17] Speaker 05:
Were they served?

[00:22:19] Speaker 05:
My understanding is they were.

[00:22:21] Speaker 05:
I don't have independent knowledge of that.

[00:22:23] Speaker 05:
There's nothing in the record to show that?

[00:22:27] Speaker 05:
I don't have anything at my fingertips that says they were or were not served.

[00:22:31] Speaker 05:
My understanding is they did not appear.

[00:22:34] Speaker 05:
Mr. Chung made several references in his briefing where he said, I'm not advancing the interests of DeepVapes.

[00:22:41] Speaker 05:
I'm not saying anything on behalf of DeepVapes.

[00:22:43] Speaker 05:
So my impression was DeepVapes no showed.

[00:22:45] Speaker 05:
But I don't have at my fingertips the service of process on DeepVapes.

[00:22:50] Speaker 01:
OK.

[00:22:53] Speaker 00:
Isn't that critical to the corporate veil aspect?

[00:22:58] Speaker 05:
Well, we don't rely on any piercing of the corporate veil.

[00:23:02] Speaker 05:
Again, our theory is Chung directly infringed.

[00:23:05] Speaker 05:
And it's not the place on appeal to say, should we be piercing?

[00:23:12] Speaker 05:
WordTech was mentioned earlier.

[00:23:13] Speaker 05:
And this case is distinct from WordTech in several ways.

[00:23:18] Speaker 05:
In WordTech, the jury instructions in verdict form were so defective that this court

[00:23:23] Speaker 05:
throughout the jury's individual infringement verdicts as clear error.

[00:23:28] Speaker 05:
The verdict form in that case actually had no option for direct infringement, not so here where the jury found that Mr. Chung directly infringed.

[00:23:36] Speaker 05:
Mr. Chung jointly submitted without objection a jury instruction that charged the jury with determining whether he himself directly infringed.

[00:23:45] Speaker 05:
So right off the bat, WordTech is different.

[00:23:49] Speaker 05:
Then in WordTech,

[00:23:50] Speaker 05:
The plaintiff had two theories, both hinging on specific jury findings for which there were no instructions.

[00:23:56] Speaker 05:
First, that the corporate defendant was nonexistent during the alleged infringement because it neglected to file annual statements.

[00:24:03] Speaker 05:
There was no instruction on that, so the jury was rudderless in determining that fact pattern.

[00:24:07] Speaker 05:
And second, the second plaintiff's theory in WordTech was that even if the corporate defendant was a valid corporation, the jury had heard substantial evidence that supported piercing the veil.

[00:24:19] Speaker 05:
Now, parenthetically, we don't think that to the extent, we don't think it's correct to instruct a jury on piercing the bail because that's an equitable doctrine under California law.

[00:24:29] Speaker 05:
But neither of these issues that were crucial to WordTech are present here.

[00:24:33] Speaker 05:
We have a direct infringement verdict that was unobjected to that was not raised in the 50A motion.

[00:24:42] Speaker 05:
And that verdict stands on substantial evidence that Mr. Chung himself directly infringed.

[00:24:48] Speaker 05:
His testimony about another actor, Esquire Distribution, amounts to simply alibi testimony that another actor was involved.

[00:24:57] Speaker 05:
It could have just as easily been another person to try to deflect liability from himself.

[00:25:07] Speaker 05:
With respect to marking, we met our pleading obligation because we pled Chung's awareness of the 284 patent that the appendix

[00:25:17] Speaker 05:
73 paragraph 57.

[00:25:19] Speaker 05:
Chung admitted in his answer that he had notice of the issuance of the 284 patent.

[00:25:24] Speaker 05:
That's appendix 133 paragraph 57.

[00:25:27] Speaker 05:
Chung simply never carried his burden under Arctic Cat to articulate the products he believed were unmarked.

[00:25:34] Speaker 05:
And to put this in perspective, Chung is moving for a new trial on failure to mark.

[00:25:39] Speaker 05:
But he never raised the failure to mark at trial.

[00:25:42] Speaker 05:
If you look at the sites in his reply at page 30, he's pointing to pretrial filings,

[00:25:47] Speaker 05:
and post-trial motions to point to his supposed meeting of his obligation to point out unmarked products.

[00:25:57] Speaker 05:
But he points to nothing from trial.

[00:25:58] Speaker 05:
This is a fact issue on which he's looking for a new trial.

[00:26:02] Speaker 05:
He never brought it up.

[00:26:02] Speaker 05:
He mentioned it in closing argument, I believe, at the trial.

[00:26:06] Speaker 05:
But that can't meet his burden of production to point out unmarked products.

[00:26:10] Speaker 05:
Compliance with 287 is a question of fact.

[00:26:12] Speaker 05:
Arctic Cat tells us that.

[00:26:14] Speaker 05:
And in fact, Arctic Cat

[00:26:16] Speaker 05:
reviews closely the evidence at trial that the alleged infringer put forth to meet its burden of production on this issue of identifying unmarked products.

[00:26:27] Speaker 05:
And it's a lot.

[00:26:29] Speaker 05:
There was expert testimony about products.

[00:26:32] Speaker 05:
There was a recitation of claim elements to show that those products in fact met the claims despite being unmarked.

[00:26:39] Speaker 05:
We have none of that.

[00:26:40] Speaker 05:
There was no trial evidence about marking whatsoever.

[00:26:43] Speaker 05:
Um, and, and there was no other, uh, fact-finding that happened in the district court.

[00:26:50] Speaker 05:
Chung never moved for summary judgment.

[00:26:52] Speaker 05:
So he is not appealing any other fact-finding exercise other than the trial with respect to marking.

[00:26:59] Speaker 05:
I heard my beep there, so I will stop.

[00:27:01] Speaker 00:
Okay.

[00:27:01] Speaker 00:
Any more questions for council?

[00:27:06] Speaker 00:
Okay.

[00:27:07] Speaker 00:
All right.

[00:27:08] Speaker 00:
Then we'll hear some rebuttal.

[00:27:09] Speaker 00:
Mr. Chadwick.

[00:27:11] Speaker 04:
Thank you, your honor.

[00:27:12] Speaker 04:
Just a few points here.

[00:27:13] Speaker 04:
First, it was Levy's burden to establish infringement, and it was Levy's burden to establish the number of infringing units.

[00:27:23] Speaker 04:
So the fact that Chung points to his company, the fact that there is a sales record from his company is really their burden to over-proof.

[00:27:35] Speaker 04:
They are trying to flip that to make it Chung's burden to establish this defense.

[00:27:40] Speaker 04:
But that burden has always rested squarely with Levy to prove infringement.

[00:27:46] Speaker 01:
As for the number of infringing units.

[00:27:48] Speaker 01:
They say that this issue, if it's personal liability wasn't raised in the 50, rule 50 motion, is that correct?

[00:27:56] Speaker 04:
They say that the alter ego issue was not raised.

[00:28:00] Speaker 04:
And that's correct.

[00:28:01] Speaker 04:
Well, the 50A does say that there was no proximate cause.

[00:28:06] Speaker 04:
And alter ego was not raised at trial.

[00:28:08] Speaker 02:
It was not in the precondition.

[00:28:10] Speaker 01:
They're not talking about alter ego liability.

[00:28:13] Speaker 01:
You're not talking about it.

[00:28:14] Speaker 01:
The district court didn't talk about it.

[00:28:16] Speaker 01:
We're talking about whether he was improperly held liable for acting in a personal capacity when he acted in a corporate capacity.

[00:28:28] Speaker 04:
In the 58, he does say that there is no proximate cause to the damages related to Mr. Chung personally.

[00:28:35] Speaker 04:
What page is that on?

[00:28:39] Speaker 04:
That's appendix 328.

[00:29:01] Speaker 00:
Okay.

[00:29:03] Speaker 00:
Okay.

[00:29:03] Speaker 00:
Okay, proceed with whatever else you need to tell us in rebuttal.

[00:29:07] Speaker 04:
As for the dates, the only evidence of record is one that shows all sales made of the accused products and one that shows post patent issuance sales of the accused product.

[00:29:19] Speaker 04:
And tangentially, this is from Esquire and not Chung.

[00:29:23] Speaker 04:
The jury is not free to make unfounded assumptions about the timing of the dates of the sales in the first page.

[00:29:31] Speaker 04:
especially because the only other evidence of record is the second page, which squarely puts 8,600 post issuance.

[00:29:39] Speaker 04:
They are not free to make assumptions because as Lebby admits, there was no other testimony of that.

[00:29:44] Speaker 04:
They did not meet their burden as to 36,000 sales because there's no other testimony or evidence in the record.

[00:29:52] Speaker 04:
And as for the jury instruction, Chung did stipulate to an instruction

[00:30:01] Speaker 04:
regarding him as an individual, because that matched the claim that was brought at trial.

[00:30:08] Speaker 04:
That does not stipulate to liability, of course.

[00:30:10] Speaker 04:
They still have the burden to prove his liability, and if they chose not, if Lubby chose not to bring a case against Esquire, this was their case, this was their choosing to go after him personally, and they have not put enough evidence in the record to support a jury verdict or to support the district court's decisions on that issue.

[00:30:30] Speaker 04:
And with that, if there's no more questions, I will... This is Judge Wallach.

[00:30:34] Speaker 03:
Your last statement is utterly confusing or at least lacking in any merit that I can see.

[00:30:44] Speaker 03:
If Chung stipulated to the jury determining whether or not he had personal liability, how is it that you're saying he didn't

[00:31:01] Speaker 04:
I'm saying he was agreeing to the statement of law in the instruction.

[00:31:05] Speaker 04:
He is not agreeing that they met their burden of proof as to that claim.

[00:31:10] Speaker 03:
But the jury could find that based on your stipulation, right?

[00:31:17] Speaker 04:
The jury is entitled to find if there was evidence in the record.

[00:31:23] Speaker 04:
OK.

[00:31:24] Speaker 04:
But you didn't stipulate.

[00:31:25] Speaker 04:
What's the stipulation that we're talking about here?

[00:31:28] Speaker 04:
In jury instruction number five,

[00:31:31] Speaker 04:
or excuse me, in the jury instructions, when it's defining what infringement that the jury should be seeking, it says whether or not Mr. Chung as an individual is liable for patent infringement.

[00:31:48] Speaker 04:
Okay, but you didn't stipulate that he was liable.

[00:31:51] Speaker 04:
No, no.

[00:31:52] Speaker 04:
Just what he was to determine.

[00:31:57] Speaker 00:
Yeah.

[00:31:57] Speaker 00:
Any more questions?

[00:31:59] Speaker 04:
No.

[00:32:00] Speaker 00:
Okay, thanks to counsel.

[00:32:02] Speaker 00:
The case is taken into submission.