[00:00:02] Speaker 03: United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:06] Speaker 03: God save the United States and this honorable court. [00:00:11] Speaker 01: The first case for argument this morning is 20-1009, a left seat design versus electronics. [00:00:20] Speaker 01: Mr. Bresler, whenever you're ready. [00:00:22] Speaker 03: Good morning, Your Honors. [00:00:23] Speaker 03: Ken Bresler from Blank Rome for Appellant Electronics. [00:00:27] Speaker 03: This is a case where the jury found [00:00:29] Speaker 03: entrenchment under the doctrine of equivalence on four elements. [00:00:33] Speaker 03: I want to focus on one of those elements, which is element H, and how that element is vitiated by the finding of entrenchment under the doctrine of equivalence. [00:00:42] Speaker 03: This is a de novo issue with no deference getting to the trial court with a jury. [00:00:48] Speaker 03: Now, if your honors would not mind turning to the blue book and page four, there are two figures there that I'll walk your honors through that will help us to visualize [00:00:58] Speaker 03: what is happening in this case and the invention. [00:01:02] Speaker 03: The inventions described in claim 27 is simple and can be seen in figure one from page four of the blue brief. [00:01:10] Speaker 03: Obviously, I cannot see your honors, whether you've had an opportunity to turn to that page, but I'll give you a couple of seconds if that's appropriate. [00:01:20] Speaker 01: Well, you don't want to use too much of your time, so please proceed. [00:01:23] Speaker 03: So claim 27 describes a rotating drum [00:01:28] Speaker 03: which is green, it flies along a carriage, which is gray, over a fixed screw, yellow, so the cables can be wound and unwound around the drum without getting tangled. [00:01:38] Speaker 03: Looking at claim 27 as a whole, it describes under element C, the hollow drum, under element E, the hollow drum. [00:01:46] Speaker 01: I'm sorry. [00:01:47] Speaker 01: This is Judge Prost. [00:01:48] Speaker 01: Let me just get to the heart of it for me, because I think this is actually, candidly, at least speaking for myself, I'm really struggling with this, because it seems [00:01:58] Speaker 01: As a procedural matter, it's very odd. [00:02:01] Speaker 01: There was no claim construction here. [00:02:04] Speaker 01: The other side asked for a claim construction, which I think in your view would have done the opposite of what was required. [00:02:09] Speaker 01: It was rejected by a trial judge. [00:02:12] Speaker 01: But they were left with a plain and ordinary meaning. [00:02:15] Speaker 01: And it seems to me that at the end of the day, that claim construction of what a plain and ordinary meaning is kind of drives the whole initiation argument. [00:02:26] Speaker 01: Even the second judge on J-Mall, the majority of his determination was based on his construing the claim in a way that it hadn't been construed previously. [00:02:38] Speaker 01: Am I right about that so far? [00:02:40] Speaker 01: Are you agreeing with what I'm saying? [00:02:41] Speaker 01: Yes. [00:02:42] Speaker 01: Yes. [00:02:43] Speaker 01: The claim is very strong. [00:02:46] Speaker 01: So there was no claim construction. [00:02:48] Speaker 01: Did you, you know, we've got an old case called O2 Micro. [00:02:52] Speaker 01: And there, we said, no, no, no, no, no. [00:02:54] Speaker 01: Plain and ordinary meeting wasn't good enough where the heart of the dispute came down to claim construction and the claim construction should have been done. [00:03:02] Speaker 01: Did you ever, you knew this was part of the dispute in the case. [00:03:06] Speaker 01: Did you ever seek a specific claim construction on plain and ordinary meaning? [00:03:12] Speaker 03: No, your honor. [00:03:13] Speaker 03: We saw a plain and ordinary meeting. [00:03:14] Speaker 03: We think this claim is very clear that it requires both a hollow hub and a hollow drum, both of them. [00:03:20] Speaker 03: to be sized, such as the hollow drum can receive the screw. [00:03:24] Speaker 03: It doesn't seem like there's anything that requires any construction, Your Honors, and I think that the way that OSD is construing it, as well as the District Court, it just makes no sense in context. [00:03:39] Speaker 01: Well, let me ask you a specific part of that that confused me. [00:03:42] Speaker 01: If you look at Appendix 22, which is in the heart of the District Court's Jamal determination, [00:03:51] Speaker 01: towards the middle of that page, he cites back to Judge Sweet's construction. [00:03:56] Speaker 01: And then he says that construction points out that the Vortec hub drum assembly unquestionably receives the screw. [00:04:11] Speaker 01: Is he right about that or what's your decision? [00:04:15] Speaker 01: Well, I'm confused. [00:04:16] Speaker 01: How is what Judge Sweet construed [00:04:20] Speaker 01: the hollow hub is being, how does that not necessarily get you where the district court was, the second district court that is? [00:04:28] Speaker 03: Well, firstly, the de novo review. [00:04:30] Speaker 03: So what Judge Daniels found is not relevant here. [00:04:33] Speaker 03: Secondly, there's no such thing as- Well, you keep saying de novo review. [00:04:37] Speaker 01: Is it de novo review because it's officiation or because you think it's a claim construction dispute? [00:04:42] Speaker 03: It's a legal issue on officiation. [00:04:44] Speaker 03: It's not a client construction issue. [00:04:46] Speaker 03: It's plain and ordinary. [00:04:47] Speaker 03: It's a legal issue to be determined on a de novo. [00:04:51] Speaker 03: This drum assembly is a different part. [00:04:56] Speaker 03: It's different from the hollow drum. [00:04:58] Speaker 03: The hollow drum is only described once in the specification. [00:05:04] Speaker 03: And it's very simple the way it's described. [00:05:07] Speaker 03: And I'll read it to you because I think it's important. [00:05:09] Speaker 03: column four lines 39 to 47. [00:05:13] Speaker 03: The only place hollow drum is mentioned. [00:05:15] Speaker 03: Says which hollow hub, which hub is hollow so the screw can pass via the hollow hub inside the drum. [00:05:22] Speaker 03: I'm sorry, it's the only place hollow drum is mentioned. [00:05:25] Speaker 03: Inside the drum, so which hub is hollow so the screw can pass via the hollow hub inside the drum, which is also hollow. [00:05:33] Speaker 03: Storing the screw inside the hollow drum is possible because the drum is not mounted on a separate shaft. [00:05:40] Speaker 03: Drum assembly has nothing to do with this. [00:05:41] Speaker 03: The claim is very clear. [00:05:43] Speaker 03: It uses the term hollow hub, which is described as being hollow, so the screw can go into it, and it uses the term hollow drum. [00:05:51] Speaker 03: So hollow hub and hollow drum. [00:05:52] Speaker 03: Two different terms, different than the drum assembly, Your Honor. [00:05:57] Speaker 01: Well, let me then take you to the other piece. [00:05:59] Speaker 01: I mean, DOE is a challenge for a number of reasons, including that we've got these [00:06:04] Speaker 01: two doctrines, one is initiation and the other is function way result. [00:06:08] Speaker 01: And function way result is the most frequently used. [00:06:12] Speaker 01: And that's a problem for you, right? [00:06:13] Speaker 01: Because under function way result, we're just looking for substantial evidence of the jury. [00:06:19] Speaker 01: And there was testimony, was there not, that it functioned in substantially the same way and substantially the same result. [00:06:28] Speaker 01: So what do you do about that? [00:06:31] Speaker 00: There was no testimony about that? [00:06:33] Speaker 03: No, Your Honor, we went through the short snippet of testimony cited by OSD for supporting their position that there was substantial similarity. [00:06:44] Speaker 03: And we went through that, and I'll find exactly where it is in the brief, and clearly it just simply does not. [00:06:52] Speaker 03: And that is on pages [00:06:56] Speaker 03: page 14 of the yellow brief, where we point out... Well, I don't have your brief, but I'm looking at the testimony. [00:07:03] Speaker 01: Can you look at... What I've got here is Appendix 9264 through, you know, about five or ten pages. [00:07:14] Speaker 01: Okay. [00:07:15] Speaker 01: I can try to turn that into a little... And I know on 9266, this expert is talking about literal infringement. [00:07:23] Speaker 01: So a lot of this stuff is literal infringement. [00:07:26] Speaker 01: And the difference, but there is testimony, right? [00:07:31] Speaker 01: Is there not? [00:07:31] Speaker 03: I'm sorry, what page would you like me to look, Your Honor? [00:07:38] Speaker 03: I'm sorry? [00:07:39] Speaker 03: I am there. [00:07:43] Speaker 03: There is testimony where Mr. Soot says that they're identical, but he in no time compares the function by result and state of the substantial similarity between [00:07:54] Speaker 03: a winch that has a hub that blocks the screw, which has a solid shaft blocking the screw from entering the drum. [00:08:02] Speaker 03: He does not go through the analysis to say that there's substantial similarity between that and a winch that has a hollow hub and a hollow drum so the screw can pass through the hollow hub into the drum. [00:08:14] Speaker 03: He simply does not go through the analysis. [00:08:17] Speaker 03: And by the way, your honor, even if he did, that doesn't negate the issue of initiation. [00:08:23] Speaker 03: Here you have a claim that is highly initiated by the, um, if, if the war tech and friend, the claim requires, and I'll turn to it, a hollow hub and hollow drum being sized such that the screw can move into the hollow hub to allow the hollow drum to receive the screw as the drum rotate. [00:08:44] Speaker 03: None of that is here. [00:08:46] Speaker 03: There's no hollow hub because the shack runs through the drum. [00:08:50] Speaker 03: and extends in a solid fashion for two inches past the drum, preventing the screw or preventing the hollow hub from receiving the screw to allow the drum to receive the screw. [00:09:02] Speaker 03: The hollow drum at the same time also cannot receive the screw because there's a shaft going through it. [00:09:08] Speaker 03: Now, it's very important to understand, again, going back to the specification, talking about the hollow [00:09:16] Speaker 03: drum. [00:09:16] Speaker 03: The only place it talks about the hollow drum again, they say storing the screw inside the hollow drum is possible because the drum, I'm sorry, this is column four, lines 39 to 47. [00:09:29] Speaker 03: Storing the screw inside the hollow drum is possible because the drum is not mounted on a separate shaft, but the drum itself forms its own shaft. [00:09:39] Speaker 03: The vortex has a solid shaft running through the drum and extending 13 inches out of the drum for [00:09:45] Speaker 03: through those inches, there's no borehole. [00:09:48] Speaker 03: The screw is blocked from getting into the drum. [00:09:53] Speaker 03: And you can see that, your honors, looking to blue brief, page four, figure two, shows the vortex. [00:10:05] Speaker 03: And you'll see that instead of there being a hollow drum, there is a thick, solid steel shaft going through it. [00:10:11] Speaker 03: And the hollow hub, which is what OSD says the hollow hub, is not hollow all the way. [00:10:18] Speaker 03: There's two inches of solid steel defending the screen. [00:10:21] Speaker 04: Why does that make a difference if the respect to the function way the result is, if the hub is only two inches away from the drum portion? [00:10:35] Speaker 03: Well, it reads out the entire claim. [00:10:37] Speaker 03: How does the public to understand [00:10:40] Speaker 03: what this means. [00:10:44] Speaker 03: How can you possibly understand it? [00:10:46] Speaker 03: This is very similar to Judge Laurie's decision in the Duncan parking case, where you have a requirement that the... Does it matter if one finds that the hub and the drum are one piece? [00:11:05] Speaker 03: Well, they can't be one piece. [00:11:07] Speaker 03: It makes no sense if it's one piece because [00:11:10] Speaker 03: And if you look to other claims in the other elements, you should know how to write something where it would have a hollow drum that was a drum that was not hollow. [00:11:24] Speaker 03: So compare these claims to claims 10, 16, and 31. [00:11:27] Speaker 03: Those claims have a hollow hub in element F, but not a hollow drum. [00:11:32] Speaker 03: Those claims only require a drum, unlike claim 27 requires a hollow drum. [00:11:37] Speaker 03: And those claims do not require the drum besides to receive the screw, like in claim 27. [00:11:41] Speaker 03: There's clearly a distinction between a hollow hub and a hollow drum with two separate terms, one in defined in element C and one in E. And why would it be written element H if they were the same? [00:11:56] Speaker 03: Why would you write a claim that everybody relies on that says hollow hub and hollow drum? [00:12:02] Speaker 03: being sized so that the screw can move into the hollow hub. [00:12:05] Speaker 03: Now, Osd recognizes this as an issue, and he tried to get the district court to construe LM&H such that the screw only had to go into the hub, but the district court rejected that. [00:12:18] Speaker 03: And, you know, there's no response even to the fact that by Osd that they're having raised this issue before and lost means that basically the case is over. [00:12:27] Speaker 03: I mean, that issue is over. [00:12:28] Speaker 03: It's been decided by the district court that that's not what it means. [00:12:33] Speaker 01: Now there's another problem. [00:12:35] Speaker 03: If the hollow drum and the hollow hub were the same, and only the hollow hub had to receive the screw, then it would be duplicative. [00:12:45] Speaker 03: Element H would be superfluous, because hollow hub was already defined as a portion of the drum intact with an elongated opening to allow passage of the elongated screw. [00:12:55] Speaker 03: That's the same thing as the hub being sized to receive the screw. [00:13:00] Speaker 03: It means element H would be superfluous, [00:13:03] Speaker 03: And there would be no reason for it to be there. [00:13:04] Speaker 03: So what we have here is a situation where we have an element completely read out of the claim by a finding of the doctrine of equivalent. [00:13:16] Speaker 01: Jared, am I right? [00:13:17] Speaker 01: Did we hear the timer go off? [00:13:20] Speaker 01: That is correct. [00:13:21] Speaker 01: There are two minutes remaining for the rebuttal period. [00:13:26] Speaker 01: OK. [00:13:26] Speaker 01: Thank you. [00:13:27] Speaker 01: All right. [00:13:27] Speaker 01: So why don't we reserve your rebuttal and let's hear from your friend on the other side. [00:13:33] Speaker 01: Mr. Ballinger. [00:13:34] Speaker 05: Thank you, Your Honor. [00:13:37] Speaker 05: And may it please the court and good morning. [00:13:43] Speaker 05: I will start by saying just a preliminary comment based on the questions that I thought about O2 micro and I thought about it because what we do have now is situation where on appeal, [00:14:03] Speaker 05: defendants have decided to pursue a claim construction that was never presented by them either to the district court or to the to the jury. [00:14:14] Speaker 01: I take your point. [00:14:15] Speaker 01: I take your point, Mr. Bollinger. [00:14:17] Speaker 01: This is your input, but the problem looking at it from the other side is that your claim construction was rejected and the district court on the second district court judge on Jamal [00:14:33] Speaker 01: is really doing a claim construction. [00:14:35] Speaker 01: He's really saying that the drum includes the hub, and they're one and the same. [00:14:40] Speaker 01: I mean, he really does rest his, as I understand it, you can disagree with me and tell me why, please. [00:14:46] Speaker 01: But his initiation analysis, which is the principal part of his general opinion, does rest on the claim construction that was not received, and was contrary to what went down before. [00:15:00] Speaker 01: And even in your own brief in red, [00:15:03] Speaker 01: You talk about it, 38. [00:15:04] Speaker 01: It sounds as if, if you read this independently, it sounds as if the jury did the claim construction. [00:15:12] Speaker 01: They agreed with this claim construction, and that's how they got. [00:15:16] Speaker 01: So who had the burden to raise those two micro? [00:15:20] Speaker 01: Tell me that. [00:15:20] Speaker 01: I mean, did you ever get a claim construction beforehand that goes to what you're relying on now? [00:15:27] Speaker 05: Well, there are two responses. [00:15:29] Speaker 05: is i don't think the jury was doing a clean construction they actually had the adopted what i think it's proper construction of these terms and and it's also the plane meaning in my view that's why the plane meaning still works in this case on is that the drum is repeatedly described throughout the entire record in this case is including a ten caps with their hollow hub in what tectonics did at trial if it didn't really try to address that because they just said plane meaning [00:15:58] Speaker 05: And they kept on pointing to their drum and saying, we don't have an end cap with a hollow hub. [00:16:04] Speaker 05: And because the jury found that there was no hollow hub literally met by the accused product, and that the end cap that included their extended hub was an equivalent to a hollow hub, they ultimately concluded that while the age was satisfied, [00:16:27] Speaker 01: Let's take the hub out of, the end caps out of it. [00:16:31] Speaker 01: Your construction and what the district court, as I understood it, said is the hollow drum includes the hub, right? [00:16:40] Speaker 01: Yes. [00:16:41] Speaker 01: Okay. [00:16:42] Speaker 01: If that's the case, then why wasn't there literal infringement? [00:16:51] Speaker 01: My question about literal infringement is because when I read the testimony of your witness, [00:16:55] Speaker 01: He essentially reaches his functionally result tests because he says they're identical. [00:17:02] Speaker 01: So why wasn't, why if I'm on the jury and drums, I think the correct claim construction is the hollow drum includes the hub. [00:17:11] Speaker 01: Why isn't that literal infringement? [00:17:14] Speaker 05: It isn't, they concluded it wasn't literal infringement because they also concluded [00:17:19] Speaker 05: that the, the, uh, the accused product did not include literally the hollow hub. [00:17:26] Speaker 05: And because that's part of element H, which was a disputed term, they concluded that while it has the equivalent of a hollow hub, that can't make it literally infringing. [00:17:36] Speaker 05: It still has to be doctrinal equivalence analysis. [00:17:39] Speaker 05: And I think that they were heavily swayed by [00:17:42] Speaker 05: some of the instructions they received on the earlier limitations, the base member and the first name. [00:17:48] Speaker 02: Counsel, this is Judge Laurie. [00:17:50] Speaker 02: You did win a jury verdict, but you won it on equivalence relating to four claim limitations. [00:17:59] Speaker 02: Have we ever found encouragement under the doctrine of equivalence where four claim limitations weren't literally met? [00:18:10] Speaker 05: I'm unaware of a case, but quite frankly, Your Honor, I did not look specifically to see what the maximum number of equivalent elements. [00:18:20] Speaker 05: I have to say that this really unfolded as two variations between the two designs, which were extrapolated across multiple limitations. [00:18:31] Speaker 05: I think the questions of equivalence kind of line up because it's an integrated mechanical device. [00:18:38] Speaker 05: a base member that has to fly. [00:18:41] Speaker 02: Equivalence is sort of a close, iffy issue. [00:18:46] Speaker 02: And hey, you've got four of them. [00:18:51] Speaker 02: And you've got a cross appeal on willfulness. [00:18:56] Speaker 02: How can one willfully infringe when you're not meeting four claim limitations? [00:19:04] Speaker 02: That almost doesn't pass a straight face test. [00:19:08] Speaker 05: Well, I can go into that a little bit. [00:19:13] Speaker 05: That's on our cross appeal. [00:19:14] Speaker 05: We think that there was obvious copying. [00:19:16] Speaker 05: And in fact, Judge Swee, on Appendix 60, if they were copying, there would have been literal infringements. [00:19:26] Speaker 02: Well, that's a pretty poor copy when you get four things that are different. [00:19:35] Speaker 05: I'm, first of all, the earlier designer, I think there was evidence of copying and we presented it and Judge Sweet found it not to be speculative. [00:19:47] Speaker 05: He said circumstantial evidence demonstrated copying. [00:19:50] Speaker 05: Whether that is, can you copy a device and have elements that, four separate elements of doctrinal equivalence? [00:19:58] Speaker 05: I think you can. [00:20:00] Speaker 05: recognizing where we are on this appeal, only one of those elements are now being challenged as a matter of law. [00:20:07] Speaker 05: And quite frankly, I think the challenge is, um, is, uh, last merit because the obvious claim construction and what the jury concluded with the obvious, ordinary meaning of this term hollow drum is a drum that includes it's end caps and, and, uh, uh, hollow hub. [00:20:27] Speaker 05: And when you read the claim with that in mind, it makes perfect sense. [00:20:31] Speaker 01: Yeah, but that's where I'm really falling short, because the district court, the first district court judge who did the claim construction never confused the claim that way, right? [00:20:42] Speaker 01: On the other side, Dutronix, I think he misspoke perhaps, because looking at the appendix at JA 836, Dutronix did argue with the Markman that the hum and the drum are separate. [00:20:54] Speaker 01: And I think that was the claim in ordinary meaning they were proposing. [00:20:58] Speaker 01: So there was no claim construction by Judge Scuse that said that the drum is the same and includes the hub, right? [00:21:07] Speaker 05: I, well, I don't think, I don't think those are inconsistent statements. [00:21:10] Speaker 05: I don't think that the fact that the hub is obviously a separate component of the drum and you have to do things to the hub as required by the claim that are [00:21:21] Speaker 05: It's the drum is an umbrella term and when you when the screw receives I'm sorry when the drum receives the screw that means it's anywhere within the open hollow drum The hollow drum includes the hub, right? [00:21:36] Speaker 01: The hollow drum includes the hub Okay, can I just ask you one other question before turning back and that goes to this equivalent point and did Raina mention it's only you know, the two inches [00:21:49] Speaker 01: Would your argument be different? [00:21:51] Speaker 01: What if it were three inches? [00:21:53] Speaker 01: What if it were 10 inches? [00:21:55] Speaker 01: Why, given that you think that the crane construction overrides everything, would it make a difference? [00:22:02] Speaker 01: Would there not be the same equivalence that you're arguing for if it were 10 or 10 or 12 or 20 inches away? [00:22:11] Speaker 05: I don't know if it would change my argument. [00:22:13] Speaker 05: I'd have to go back into the function way result [00:22:17] Speaker 05: And how those questions were addressed by our expert and their expert. [00:22:22] Speaker 05: My gut feeling is that probably a three inch probably wouldn't make a difference. [00:22:28] Speaker 05: And when you get out to 10 or 12 inches, one of the benefits of this thing was to have a more compact design. [00:22:34] Speaker 05: So at some point, [00:22:36] Speaker 05: Maybe you would cross that barrier, but I don't think that that's what's happened in any of the sense. [00:22:41] Speaker 05: Remember that the innovation here- Well, the one with the compact design. [00:22:46] Speaker 01: I didn't see much testimony or any about the discussion of that because, yeah, I do think that the result here and the function is to have a compact design. [00:23:00] Speaker 01: And I didn't see much saying that two inches doesn't make a difference to the compact design. [00:23:05] Speaker 01: but something more wood. [00:23:07] Speaker 01: Is there some question you can point me to? [00:23:10] Speaker 05: I can't. [00:23:11] Speaker 05: And quite frankly, the compact design was a subsidiary benefit. [00:23:15] Speaker 05: The real benefit was to protect the screw. [00:23:17] Speaker 05: And that was clearly done by their design, where they have an 11-inch bore for a 10.75-inch screw. [00:23:24] Speaker 05: So it's fully enclosed within the hollow hub, which was emulated precisely. [00:23:31] Speaker 05: And that's an important aspect for these winches, because they sit around [00:23:35] Speaker 05: unused for long periods of time and dust and other debris can get into the screw and cause problems. [00:23:43] Speaker 05: And I'm going into my, and I purposely will go into my remaining time, because I want to address not only that there's such, I mean the intrinsic record here is so one-sided, and that's why ordinary meeting works. [00:24:00] Speaker 05: And in fact, their expert conceded that the ordinary meaning is dictated by what the definition is in the spec. [00:24:07] Speaker 05: The definition for hollow drum in the spec was clearly laid out to include both its hubs. [00:24:12] Speaker 05: And they don't have any counter to that at all. [00:24:15] Speaker 05: When you look at H, you can see that it's talking about an arrangement where the hub and the drum are sized in a way to allow for the screw to end up in a protected [00:24:29] Speaker 05: fully enclosed, received by the drum, which includes both its end caps, so that it's dust free. [00:24:35] Speaker 01: I appreciate that, but I'm sorry to interrupt, but we were both under a short time frame. [00:24:40] Speaker 01: Right. [00:24:42] Speaker 01: Didn't prior art designs also protect the screw? [00:24:47] Speaker 05: There was a, I don't know, no, certainly not in the theater winch business. [00:24:52] Speaker 05: And the obvious one would be [00:24:56] Speaker 05: the screw that was shown in the Bellagio, which was of record in front of them. [00:25:02] Speaker 05: I think there were covers that they put on screws in some of the designs earlier, but I don't think there's any record of that in the proceedings. [00:25:12] Speaker 05: However, but that's the critical result. [00:25:14] Speaker 05: I mean, Mr. Soot came up with a radical new way of doing this. [00:25:19] Speaker 05: He fixed the screw and he made the drum rotate with a threaded nut at the end so that it could be protected at one end of its travel. [00:25:27] Speaker 05: And that's what the specification covers. [00:25:30] Speaker 05: I guess I will reserve, well let me just touch two things. [00:25:35] Speaker 05: You haven't asked much about damages or any of the other things. [00:25:40] Speaker 05: The Second Circuit doesn't allow review on great weight of the evidence. [00:25:44] Speaker 05: One thing I wanted to extend that, to make that point, is that in the Robinson decision, that dealt with the damage where they did challenge great weight of the evidence. [00:25:53] Speaker 05: and was denied on a new trial basis, and that was, Robinson ruled in the Second Circuit that that wasn't subject to review. [00:26:02] Speaker 05: I will reserve the rest of, how much time do I have left? [00:26:06] Speaker 05: I have three minutes? [00:26:09] Speaker 01: Two minutes and 34 seconds. [00:26:11] Speaker 05: All right, thank you. [00:26:13] Speaker 01: You know, sir, I just want to make sure that this is all done fairly, and it's very, cross appeals are often somewhat confusing, and on the phone, it's even more confusing. [00:26:23] Speaker 01: Maya, I heard you make one brief statement in response to Judge Lurie on copying, but other than that, have you really pressed your cross-appeal? [00:26:33] Speaker 01: You don't get to be butted if you haven't raised it. [00:26:36] Speaker 05: Okay, let me make sure I'm clear on this. [00:26:41] Speaker 05: We are pursuing a cross-appeal. [00:26:42] Speaker 05: It's clear that Judge Sweet on willfulness made a mistake. [00:26:47] Speaker 05: He had a... He failed to... He applied the wrong burden of proof. [00:26:52] Speaker 05: any any required egregious conduct for a willfulness finding to present the willful this issue to the jury on halo talk about enhanced damages it doesn't discuss on the issue um... uh... as and and our our position is the records associated specifically with their patent counsel uh... and the knowledge of the council got detailed knowledge of the forty five patent which was shared with some of the management at at that tronics established knowledge [00:27:18] Speaker 05: Um, sufficient and, uh, and with the copying record being the same. [00:27:22] Speaker 05: So I will reserve the rest of my time on, on that. [00:27:24] Speaker 05: Um, and thank you, your honor. [00:27:26] Speaker 05: If there are any other questions, I'll be glad to. [00:27:30] Speaker 01: Okay. [00:27:31] Speaker 01: Um, and the time only comes if the other side addresses the craft appeal. [00:27:35] Speaker 01: So we shall see, but, um, thank you. [00:27:37] Speaker 01: Um, all right, Mr. Bresla. [00:27:41] Speaker 01: Uh, we'll give you, I think we were down to two minutes. [00:27:45] Speaker 01: We'll give you three minutes for rebuttal. [00:27:47] Speaker 01: or four minutes if you need it. [00:27:54] Speaker 01: Mr. Bresler? [00:27:58] Speaker 03: I'm sorry, I put you on my phone. [00:28:00] Speaker 03: Yes, do you hear me now? [00:28:02] Speaker 03: Oh, okay. [00:28:03] Speaker 03: I'm sorry, now it's my fault. [00:28:04] Speaker 03: As instructed, I muted myself. [00:28:07] Speaker 03: This comes down to whether the drum, hollow drum, includes the hollow hub. [00:28:14] Speaker 03: Why would a claim be written [00:28:16] Speaker 03: to have both the hollow hub and hollow drum being sized so the screw can move into the hollow hub to allow the drum to receive the screw. [00:28:24] Speaker 03: If it were written, if it were only required, the hub to receive the screw, it would say a hollow hub this size to receive the screw. [00:28:34] Speaker 03: Now, on top of that, as I mentioned earlier, if the hollow hub only has to receive the [00:28:45] Speaker 04: I'm sorry, I'm losing you. [00:28:49] Speaker 01: I don't know if anybody else can hear you, but I'm losing you. [00:28:52] Speaker 02: I lost him too. [00:28:54] Speaker 04: Same here. [00:28:55] Speaker 03: Do you hear me now? [00:28:57] Speaker 04: Yes. [00:28:59] Speaker 03: Did I fall off? [00:29:01] Speaker 03: It looks like my... Did you hear me, Aaron? [00:29:05] Speaker 03: Hello? [00:29:06] Speaker 04: Councilor, you fell off for about 30 seconds. [00:29:09] Speaker 03: Oh, okay. [00:29:10] Speaker 03: I'm sorry. [00:29:11] Speaker 03: My earphones obviously ran out of juice. [00:29:14] Speaker 03: Do you hear me now? [00:29:15] Speaker 03: I'll speak to the speaker. [00:29:17] Speaker 02: We can hear you. [00:29:18] Speaker 03: Yes. [00:29:19] Speaker 03: Thank you. [00:29:19] Speaker 03: Okay. [00:29:20] Speaker 03: What I was saying is it says that this rests on the hollow drum and the hollow hub being the same. [00:29:27] Speaker 03: Why then would the claim be written to have the hollow hub and hollow drum being sized so the screw can move into the hollow hub to allow the hollow drum to receive the screw? [00:29:37] Speaker 03: It would just be written a hollow hub sized to receive the screw. [00:29:40] Speaker 03: That's not how it's written. [00:29:42] Speaker 03: and people have to be able to rely on it. [00:29:44] Speaker 03: Why would you use hollow and hollow drum two separate terms? [00:29:48] Speaker 03: Moreover, many of the other claims and throughout the specification use just a drum, not hollow drum. [00:29:54] Speaker 03: This is very clear that it's only that this hollow drum has to receive the screw. [00:29:59] Speaker 03: And again, I refer you to claims 10, 16 and 31, which only use a drum and a hollow hub. [00:30:06] Speaker 03: They don't refer to a hollow drum and they don't require the hollow drum to receive the screw. [00:30:11] Speaker 03: Finally, [00:30:12] Speaker 03: If that theory is correct by OSD, that the hollow hub and hollow drum are the same and the screw only has to be received by the hollow hub, then element H would be superfluous in light of element E, which was construed as a portion of the drum end cap with an elongated opening to allow passage of the elongated screw. [00:30:35] Speaker 03: That's the exact same thing as a hollow hub sized to receive the screw. [00:30:41] Speaker 03: So that's another basis revitiation. [00:30:43] Speaker 03: So this is not a question. [00:30:47] Speaker 03: We talk about the two inches away. [00:30:49] Speaker 03: This is not a question of degree. [00:30:51] Speaker 03: This is a question of a complete absence of the structure. [00:30:54] Speaker 03: If it were a, if the, if the claim read a screw that passed within two inches of the drum and it was for one inch of the drum and it was actually two inches, then that's a question of degree. [00:31:07] Speaker 03: This is a question of a screw that cannot go into the hollow drum. [00:31:12] Speaker 03: It simply cannot be received by the hollow drum because there's a shaft running through the hollow drum that is solid for two inches thereafter. [00:31:23] Speaker 03: So it's not a question like many of the cases that discuss officiation, whereas a question of, it's a bit of degree, one inch, two inch, three inch, what's the difference? [00:31:33] Speaker 03: Here is a complete absence of the claim element. [00:31:36] Speaker 03: which requires that the drum itself, as opposed to the hollow hub, be sized to receive the screw. [00:31:42] Speaker 03: And it requires a hollow hub that is sized to allow the drum to receive the screw. [00:31:47] Speaker 03: The hollow hub is solid at the end. [00:31:49] Speaker 03: It is not sized to allow the drum to receive the screw. [00:31:54] Speaker 03: Unless there are any questions, Your Honor, I'll rest. [00:31:59] Speaker 01: Um, okay. [00:32:00] Speaker 01: So let me just review the bidding. [00:32:02] Speaker 01: I think that, uh, because you did not address the cross appeal in your remarks, as I understand it, that means that there's no rebuttal by Mr. Bollinger. [00:32:13] Speaker 01: Um, so everybody concur on that? [00:32:17] Speaker 01: I certainly do. [00:32:18] Speaker 05: I'm sorry. [00:32:21] Speaker 05: Yeah, this is Mr. Bollinger. [00:32:22] Speaker 05: I guess that's right. [00:32:27] Speaker 01: I'm sorry? [00:32:29] Speaker 05: This is Mr. Bollinger. [00:32:33] Speaker 05: I didn't hear any points raised on willful infringement, so you're right. [00:32:37] Speaker 05: All right. [00:32:37] Speaker 01: Thank you. [00:32:38] Speaker 01: All right. [00:32:39] Speaker 01: We thank both sides for their indulgence and the cases submitted.