[00:00:02] Speaker 04:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

[00:00:11] Speaker 01:
Thank you.

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Our first case for argument today is 2018-2021, Peerless Industries versus Crimson.

[00:00:23] Speaker 01:
Mr. Ryndak, you may proceed.

[00:00:25] Speaker 04:
Thank you, Your Honor, and may it please the court.

[00:00:30] Speaker 04:
After a two-week trial, a jury returned a unanimous verdict in favor of my client, finding that Crimson AZ had proven by clear and convincing evidence that the 850 patent was obvious in view of the combination of the Techcraft TLK-50B and the Sanis BMTL-2.

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We are here today because despite overwhelming proof of invalidity, the district court granted the extreme remedy of JMAW on the obviousness verdict.

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The district court accomplished this by impermissibly failing to consider evidence that supported the jury's verdict.

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The district court also incorrectly determined that there was no evidence of a motivation combined.

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The district court was mistaken.

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First, the trial evidence proved that the sole feature of the 850 that was patentable over the prior art was the bridge plate.

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In this regard, Marshall Brown, who was the prosecuting attorney,

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was forced to admit a trial that but for the addition of the bridge plate, the 850 patent was anticipated by the prior art references Bremen and Pfister.

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Mr. Rindick, this is Judge Toronto.

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Can you just explain what the motivation is that was in evidence to combine the T prior art with the V prior art?

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Certainly.

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There was, in fact, substantial evidence of a motivation to combine because

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There was testimony of three pacitas, Lamb, Plavnik, and Gleiser.

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And they all testified consistently that there was a known problem in the ART that brackets would fall from a bridge plate if they weren't secured with a safety mechanism.

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Okay.

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Does T lack a safety mechanism?

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I'm sorry.

[00:02:20] Speaker 00:
Does the T prior ART lack a safety mechanism?

[00:02:23] Speaker 04:
Oh, I see.

[00:02:24] Speaker 00:
No, they all have... So why would one look elsewhere based on the desire for a safety mechanism?

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I see.

[00:02:32] Speaker 04:
Well, that's one thing that the judge keyed in on.

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She said that there wasn't a motivation to combine because we didn't prove that, you know, a bridge plate was necessary for a bracket.

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But that's really not the right question.

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The right question is whether there'd be a motivation to combine a bridge plate as a safety mechanism in any bracket.

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And the PASIDAs all testified that they were aware of safety mechanisms and the evidence showed that there were basically three.

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There was a bridge plate that's a safety mechanism.

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There were tabs that were a safety mechanism.

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Tabs are basically, they're like a half a bridge plate.

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They can fold outward.

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They can fold inward.

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And there was a safety bar.

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The VMPL2 employed a safety bar.

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So the PASIDAs had in their purview

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three safety mechanisms that could be used to secure a bracket to a wall plate.

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It doesn't matter which one they employed, but they could easily see by looking at the brackets that if you combine the ramps of the VMPL-2 with the bridge plate of the TRK-50B, you've now practiced the invention.

[00:03:48] Speaker 01:
Council, this is just more.

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I think one of the problems I have with that argument is it seems to boil down to if certain features, safety plates, screws, ramps, things like that, were generally known in the art, there's automatically a motivation to combine any of them.

[00:04:06] Speaker 01:
That's what I feel like your argument boils down to, and that seems like it would be a dramatic expansion of our law.

[00:04:14] Speaker 04:
Well, I mean, the thing to remember about that is that these are commodities.

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And it doesn't matter what safety measure you employ, a posita would have all of those in their quiver, so to speak, and they could employ any one of them.

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And I think that is sufficient motivation to use the bridge plate in the VMPL-2.

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Mr. Rindak, this is Judge Chen.

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Could you point me to the testimony

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from any of the witnesses during the trial in the joint appendix where one of the witnesses, one of the experts says there are multiple known security mechanisms and it would have been obvious and they're all interchangeable and so therefore it would be obvious to use any one of this fixed number, limited number of security mechanisms.

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testimony by the procedures that... Can you point me to a JA site?

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I'd like to see the quote.

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A what site?

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The joint appendix site.

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I'd like to see the testimony.

[00:05:31] Speaker 04:
Sure.

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Finding it now.

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Well, this is at APTX 8271.

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And the testimony is, and it's a safety suit.

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The answer, correct.

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The primary purpose of it, correct, correct.

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Safety and security, yes.

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Somewhere between those two terms.

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This is Lam, who's testifying about what the bridge plate was for.

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But to answer your question directly,

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It's whether a postita testified that, oh, we could combine any one of these elements.

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There is a testimony in that regard.

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But what there is, Judge, is powerful evidentiary evidence.

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The jury had with them all three of those brackets in the jury room.

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And they could review them.

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And they could see them.

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And they could see that.

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any combination of or rather the combination of the bridge plate with the DMPL-2 was an obvious solution.

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Mr. Rindak, this is Judge Chen again.

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Yes.

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You have the burden of proof to establish by clear and convincing evidence that the claims would have been obvious to a skilled artisan, right?

[00:07:09] Speaker 02:
Correct.

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As part of your burden of proof in the context of a 103 challenge, don't you also need to present a reason to combine different elements together as reflected in the claim?

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Yes, and there was a reason.

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The reason is... And, well, I guess that's my concern.

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My concern is where in the record did you satisfy that element of your burden in a 103 challenge to...

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put together and present what is the rationale, what is the reason to take different elements from different references and put them together?

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That's what I'm looking for in any testimony.

[00:07:55] Speaker 04:
Well, Judge, the obviousness analysis isn't as rigid as I think that you're explaining.

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The motivation combined can be implicit within the prior art.

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And here you have two components.

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On the one hand, you have cositas who are all acknowledging that there's a problem in the art with brackets falling off the wall unless they're secured.

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On the other hand, the jury sees a multitude of brackets, and they all have a security mechanism.

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From those two elements, the jury could see that it would be obvious to use

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any number of those combinations to secure the brackets to the wall plate.

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So with the evidence, the combination of the evidence showed the jury three things.

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Number one, that the problem of falling brackets was well known in the art.

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Number two,

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that there were limited common sense solutions at a procedure's disposal to solve that problem, right?

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A procedure could use the bridge plate, it could use a tab, or it could use a safety bar.

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Any one of those would get the job done.

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And three, the 850 encompasses an obvious solution to that problem, because it has a bridge plate.

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Armed with that evidence, the jury, any reasonable jury, any reasonable jury, could conclude that a procedure would know to combine

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the bridge plate of the TRK50B with the upper and lower ramps of the BMPL2 and have a reasonable expectation of success in achieving the claimed invention.

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Despite all of this, the district court compounded this error by applying a heightened standard of proof to crimson when it ruled that it did not prove that a retainer and safety screw were necessary components to a bracket.

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In this regard, the court applies the wrong standard because, again,

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The relevant question isn't whether the bridge plate and security screws are necessary components of every bracket.

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All that Crimson had to show was whether there was any problem known in the art with an obvious solution.

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Crimson wasn't required to show that a bridge plate is the only solution.

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It was only required to show that it was a solution.

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And the testimony together with the brackets show without a doubt that the bridge plate is a solution to that problem.

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And based upon that evidence, the jury made two very important factual or implicit factual findings.

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The implicit factual findings are, one, the only difference between the 850 and the BMPL-2 is the absence of a bridge plate in the BMPL-2.

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And second, that the only difference between the 850 and the TRK-50B was the absence of the lower ramps in the TRK-50B.

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the physical brackets adduced to the jury that they had in the jury room were substantial evidence supporting their verdict.

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And it's also interesting to note that the jury's implied factual findings on obviousness are also supported by the district court's ruling on anticipation.

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The district court upheld the anticipation verdict that the GRK50B anticipated claims 1, 2, 3, 6, and 7.

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And what this means, and this is why it's important,

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It means that the jury correctly compared the claims of the H-50 to the TRK-50B based on the evidence adduced.

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If the jury was somehow irrational or simply didn't understand how to compare the H-50 claim language to the prior art, it would have been reflected in an unreasonable verdict on anticipation, but it wasn't.

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And it's clear that the jury correctly ascertains differences between the A50 and the TRK50B unaided by any expert testimony.

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Expert testimony is not required.

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So based on the evidence, the case is not close.

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It was easy for the jury to understand.

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The jury's determination that Crimson proved obviousness by clearly convincing evidence was rational and correct.

[00:12:16] Speaker 04:
If I can comment a little bit about the technology,

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The technology here is, technology is almost a misnomer.

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I mean, if it's technology, it's caveman technology.

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If you've ever seen a picture hung on a wall by a nail and a wire, you'll understand this technology.

[00:12:35] Speaker 04:
I hear the tone and I'm out of time, so I'll rest.

[00:12:39] Speaker 01:
Okay.

[00:12:40] Speaker 01:
Thank you, Mr. Ryndeck.

[00:12:42] Speaker 01:
Mr. Deso?

[00:12:45] Speaker 03:
May I please the court?

[00:12:48] Speaker 03:
My name is Jim Diasso and I'm representing Peerless on appeal.

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Obviously, there's a number of issues that have been raised by both sides, both on the appeal and the cross-appeal.

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I'm going to focus my time today on obviousness and then on the items on our cross-appeal.

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Before we get to the issue of motivation to combine an obviousness, we think there's a preliminary issue that this Court

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should address and actually should reverse the finding anticipation on and uphold the finding of obviousness on.

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And that is the admission of the TRK 50B bracket into evidence.

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We believe that the district court abused her discretion in admitting that bracket into evidence.

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As we indicated in our briefs, the TRK 50B bracket was the sole evidence that was before the jury with respect to anticipation.

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And it was one of the two brackets that were combined on the obviousness.

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So the entire invalidity case put forth by Crimson depended upon the admission of the TRK50 bracket into evidence.

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And if that bracket was not appropriately admitted into evidence, we believe that there is no basis for either anticipation or an obviousness.

[00:14:01] Speaker 00:
And this is Judge Toronto.

[00:14:02] Speaker 00:
Do I understand right that that issue comes down to whether

[00:14:06] Speaker 00:
the district court abused its discretion in concluding that the reliability factors of 807 are sufficiently satisfied by the quite powerful interest of Amazon in having these kinds of printouts, its listings be accurate and that that was enough for admissibility, the rest going to wait.

[00:14:31] Speaker 03:
Yes, I believe that the issue comes down to whether or not, in particular, two of the four elements of 807 is fulfilled.

[00:14:41] Speaker 03:
One goes to the trustworthiness.

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There's an issue of whether there's equivalent circumstances of trustworthiness surrounding this.

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And then the second level goes to whether or not you can find non-hearsay evidence.

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And basically, the proponent of the evidence, in this case, Crimson, had the burden of proving that this evidence

[00:15:00] Speaker 03:
was more probative than any non-hearsay evidence.

[00:15:04] Speaker 03:
So there are two levels to it.

[00:15:05] Speaker 03:
Trustworthiness is one level, the ability to find other evidence, or showing that that other evidence was not as trustworthy as the evidence we had.

[00:15:14] Speaker 00:
Right, and do I, I'm afraid my memory of the many, many details here might be inadequate, but am I remembering correctly or incorrectly that what you point to as the better non-hearsay evidence

[00:15:28] Speaker 00:
would be to find somebody or other in the Amazon company that might actually remember how this one among probably tens of thousands or hundreds of thousands of electronically listed items got to be so listed?

[00:15:48] Speaker 03:
No, Your Honor.

[00:15:48] Speaker 03:
Well, we think, first of all, I would point the court to the Burton case out of the Seventh Circuit where Judge Posner addressed justice issue.

[00:15:57] Speaker 03:
But our suggestion is consistent with what Judge Posner said, is that you have to look at what was available other than this piece of evidence before you can admit it under the hearsay rule.

[00:16:07] Speaker 00:
Right, but just to be, I was taking all of that as a given.

[00:16:12] Speaker 00:
So you said, here's what would be available.

[00:16:15] Speaker 00:
Am I remembering right, that what you say is, here's the non-hearsay evidence in this case that would be available, is some person at Amazon who might remember how this particular listing got made?

[00:16:30] Speaker 03:
No, what we would suggest, Your Honor, is the better evidence would be to go and take a corporate representative,

[00:16:35] Speaker 03:
under the rules that would allow you to take a corporate representative of either Amazon or Techcraft.

[00:16:42] Speaker 03:
So you could either go to the Amazon company and ask them for a corporate representative who could talk about the circumstances for a particular website, how they're maintained, and basically show that they are qualified business records pursuant to a well-established rule, or else exception to the hearsay rule.

[00:17:02] Speaker 03:
So that would be one way.

[00:17:03] Speaker 03:
The second way would be to go to Techcraft itself, which is a manufacturer, and obtain evidence from them.

[00:17:09] Speaker 03:
Presumably, they have their own evidence about when they put this particular bracket on the market, when it went for sale.

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And that evidence would be also something that could potentially be used to establish that this particular bracket predated the clinical date.

[00:17:26] Speaker 03:
So there are different things that they could have done, but they didn't do any of them.

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And they didn't explain why they didn't do any of them.

[00:17:35] Speaker 03:
And they didn't show that that evidence, either from the manufacturer or from Amazon, would have been less prolific than this printout from the internet.

[00:17:45] Speaker 03:
So all of that was their burden.

[00:17:48] Speaker 02:
This is Judge Chen.

[00:17:51] Speaker 02:
What if, hypothetically, there was a printout of an article from CNN.com that said,

[00:18:01] Speaker 02:
first printed on, first published on January 2004.

[00:18:07] Speaker 02:
Do you think that'd be good enough to use the printout of that article as prior as of that date of 2004?

[00:18:21] Speaker 03:
No, Your Honor.

[00:18:22] Speaker 03:
I think that you actually have to go through the process of establishing that there was non-hearsay evidence or evidence that fell within the scope of one of the well-established exceptions.

[00:18:36] Speaker 03:
And that's the basis for establishing clear and convincing evidence.

[00:18:40] Speaker 03:
I think one of the things that I'd ask the court to consider here is what would be... How about washingtonpost.com?

[00:18:49] Speaker 02:
And it said,

[00:18:51] Speaker 02:
the article said at the top, you know, first printed or first published on January 2004.

[00:18:58] Speaker 02:
Would that be good enough?

[00:19:01] Speaker 03:
No, Your Honor.

[00:19:02] Speaker 03:
It would be our view that you would not be able to just print off a page from any website of any company without a showing that, without a proof that there was trustworthiness.

[00:19:16] Speaker 02:
And going back... That would be an abusive discretion to rely on

[00:19:21] Speaker 02:
a printout from WashingtonPost.com, NewYorkTimes.com, et cetera, where that website indicated that it was, that article was first published at a certain date.

[00:19:37] Speaker 03:
It would be an abuse of discretion, Your Honor, if there was not established the elements of 807.

[00:19:42] Speaker 03:
And again, 807, for our purposes here, we focused on two of the four elements that we think were not satisfied.

[00:19:50] Speaker 03:
The first element is there has to be proof of trustworthiness.

[00:19:55] Speaker 03:
And that's proof of trustworthiness.

[00:19:57] Speaker 01:
Counsel, this is Judge Moore.

[00:19:59] Speaker 01:
Is it your view that under the Seventh Circuit to meet the first requirement of guarantees of trustworthiness, either the statement has to be made under oath or corroborated by non-hearsay evidence?

[00:20:14] Speaker 01:
Is it your view that Seventh Circuit law requires compliance with one of those two?

[00:20:21] Speaker 03:
I would say we don't have to go that far, Your Honor.

[00:20:26] Speaker 03:
We believe that there has to be some evidence beyond the document itself to establish trustworthiness.

[00:20:33] Speaker 03:
So precisely what the contours of that other evidence would be, I don't think you have to go so far as to say it has to be under oath or non hearsay evidence.

[00:20:43] Speaker 03:
But what you do, you have to have something besides just the document itself to establish trustworthiness.

[00:20:50] Speaker 03:
Let me go back to the basic issue here which is the idea that somehow because Amazon is a well-known name and because Amazon had no motivation here that all of a sudden we can assume that it's trustworthy.

[00:21:03] Speaker 03:
But I don't think you can do that because we have no idea about how Amazon maintained this particular site or this particular webpage.

[00:21:11] Speaker 03:
We don't even know whether Amazon itself was the person that maintained this.

[00:21:15] Speaker 03:
A lot of the companies, such as Amazon, which provide marketplaces for third-party vendors, allow those third-party vendors to manage and control the particular sites on their website.

[00:21:28] Speaker 01:
So all of that is... So, Council, for example, are you suggesting that it may not even be Amazon that is listing the date first available?

[00:21:36] Speaker 01:
Amazon may actually release that to the

[00:21:41] Speaker 01:
and allow the individual seller to post the information like date first sold?

[00:21:47] Speaker 01:
Correct.

[00:21:47] Speaker 03:
And that is not in the record one way or the other, Your Honor, but I would suggest because it's not in the record one way or the other, the proponent of the evidence, in this case Crimson, has fulfilled to provide their burden of proof with respect to this.

[00:22:02] Speaker 03:
So again, they have the burden of proving invalidity by clearing convincing evidence.

[00:22:08] Speaker 03:
And we cited case law to the court that suggests that overall burden of clearing convincing evidence applies not only to the totality of the issue of invalidity, but also to the proof that there must be some sort of showing that there's a prior us here.

[00:22:22] Speaker 03:
So they bore a substantial burden of that.

[00:22:25] Speaker 03:
And frankly, I would say just printing something off from a website is not enough to do that.

[00:22:32] Speaker 03:
You've got to do more.

[00:22:34] Speaker 03:
You've got to do something.

[00:22:35] Speaker 03:
that shows that that print-off on the website has trustworthiness, and you have to do something more to prove that just by looking at the document itself.

[00:22:45] Speaker 03:
And then secondly, you have to show why you couldn't have done it through more traditional, well-established means to actually prove the same fact.

[00:22:56] Speaker 03:
And again, the Rule 807 that existed at that point in time required that you show that it was more

[00:23:02] Speaker 03:
probative on this particular issue than the other issues.

[00:23:08] Speaker 03:
So, Your Honor, unless there's more questions on that, I was going to turn briefly to our issue with respect to the contract claim.

[00:23:17] Speaker 03:
With respect to the contract claim, the two points I wanted to make in the last minute or so that I have left.

[00:23:24] Speaker 03:
Number one, this was issued as decided by the district court on a motion for judgment on the pleading.

[00:23:31] Speaker 03:
So basically on a fair legal record where the court could make no factual findings and could not make any factual determinations.

[00:23:41] Speaker 03:
The other point I wanted to make is that we cited for this court both in Illinois law and from various jurisdictions around the country,

[00:23:52] Speaker 03:
various restrictive covenants that were more broad than the covenant issue in this particular case.

[00:23:59] Speaker 00:
This is Judge Toronto.

[00:24:00] Speaker 00:
Can I just ask a question about what's at stake on these claims?

[00:24:04] Speaker 00:
Here's my understanding, and just correct me if I'm wrong.

[00:24:07] Speaker 00:
There are two claims, civil conspiracy, torsious interference with the Sycamore peerless contract.

[00:24:16] Speaker 00:
The possibly violated

[00:24:20] Speaker 00:
or the allegedly violated provision of the contract was the one year post-termination do not sell something.

[00:24:29] Speaker 00:
The termination was December of 2009.

[00:24:35] Speaker 00:
The sales from Sycamore to Crimson started in July of 2010.

[00:24:40] Speaker 00:
You all knew about it, thought it was no big deal until sometime in 2011, after which,

[00:24:46] Speaker 00:
or as of which that restrictive provision had itself lapsed because more than one year had passed since December 2009.

[00:24:56] Speaker 00:
So are we talking about five months of sales from July 2010 to December 2010?

[00:25:04] Speaker 03:
Based upon the record that we have right now, we are, Your Honor.

[00:25:08] Speaker 03:
But we will also believe that that is a significant issue that the Court should be considering because the whole purpose of

[00:25:15] Speaker 03:
restrictive covenants such as this is to put the parties back, to stop people from getting a head start from using someone else's intellectual property.

[00:25:25] Speaker 03:
And with that, Your Honor, I think I'm past my time.

[00:25:27] Speaker 03:
So I will delve into this more in rebuttal if the court allows me.

[00:25:33] Speaker 01:
Okay.

[00:25:33] Speaker 01:
Thank you, counsel.

[00:25:35] Speaker 01:
I think you have some rebuttal time.

[00:25:37] Speaker 01:
Mr. Ryndeck?

[00:25:41] Speaker 04:
Ryndeck.

[00:25:42] Speaker 04:
Thank you, Your Honor.

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

[00:25:43] Speaker 01:
Thank you.

[00:25:44] Speaker 04:
So just with respect to the admission of the TRK-50 Bean, Amazon.com isn't just any retailer.

[00:25:54] Speaker 04:
I mean, it's the largest retailer in the country, and they're not in the business.

[00:25:58] Speaker 01:
Is there evidence in the record of that?

[00:26:00] Speaker 01:
There is not, Judge.

[00:26:02] Speaker 01:
So you're asking me to take judicial notice of the fact that Amazon is the largest retailer in the country?

[00:26:07] Speaker 04:
I think if it's not the largest, it's in the team photo.

[00:26:11] Speaker 01:
So I should take judicial notice of some team photo?

[00:26:16] Speaker 04:
No, Your Honor.

[00:26:17] Speaker 04:
I didn't mean to slip about it, but I think it's well known.

[00:26:21] Speaker 01:
But you're basically trying to testify right now to things you didn't put into evidence below.

[00:26:26] Speaker 01:
You're trying to offer me your personal testimony unsupported by anything in the record.

[00:26:31] Speaker 04:
I think it's common knowledge that Amazon.com is one of the largest retailers in the country.

[00:26:38] Speaker 04:
Did you argue that below?

[00:26:39] Speaker 01:
We did not argue it below, but the court... Now you're making arguments on appeal regarding this that asks me to assume or take judicial notice of evidence not in the record and arguments not made below.

[00:26:55] Speaker 01:
What evidence did you present as to the trustworthiness of the representations on the website?

[00:27:03] Speaker 04:
Well, we presented it to the court, and the court found that Amazon.com would not have any motivation to lie about the date that it published.

[00:27:14] Speaker 01:
And as for Mr. Dassau's argument... Well, would the Washington Post have any reason to lie about the date they published?

[00:27:23] Speaker 01:
It's not about lying, right?

[00:27:25] Speaker 01:
Its trustworthiness doesn't just mean lying, because lying implies some intentionality.

[00:27:30] Speaker 01:
It could be carelessness, right?

[00:27:31] Speaker 01:
Or it could be perhaps Amazon allows the individual vendors to list the date first sold.

[00:27:39] Speaker 01:
Perhaps Amazon's not even in control of that data.

[00:27:41] Speaker 01:
And then you could imagine circumstances where there are wild variations in the accuracy of the data being presented if Amazon were to allow each individual seller to list and to fill that particular data field.

[00:27:55] Speaker 01:
And I think that's the problem here that I see.

[00:28:00] Speaker 04:
I would draw a distinction between the Washington Post and Amazon.com.

[00:28:04] Speaker 04:
I mean, it depends on what information you're trying to rely upon in the Washington Post.

[00:28:10] Speaker 00:
Was there specific evidence on the question of who, as between Amazon and Techcraft, fills in that field about date first posted?

[00:28:22] Speaker 04:
There's no evidence of that.

[00:28:24] Speaker 04:
That's speculation from the other side.

[00:28:27] Speaker 00:
That would be speculation both ways, wouldn't it?

[00:28:30] Speaker 01:
And aren't you the ones with the burden of proof here?

[00:28:33] Speaker 01:
Aren't you the ones under 807 that have to prove entitlement to this exception to the hearsay rule?

[00:28:43] Speaker 04:
It is our burden.

[00:28:44] Speaker 04:
However, that was not an objection raised by the other side.

[00:28:47] Speaker 04:
They didn't say somebody else could have filled in the amazon.com order.

[00:28:50] Speaker 04:
That's not the argument they made at trial.

[00:28:55] Speaker 04:
I note that I'm out of time, and so... Well, I guess I just am wondering.

[00:29:00] Speaker 01:
I'm just not... Don't worry about your time.

[00:29:02] Speaker 01:
I'm just... I'm not sure about this argument.

[00:29:06] Speaker 01:
The Seventh Circuit has given a number... Has a number of cases in which they've considered 807, and in each of those cases... But let me put it like this.

[00:29:16] Speaker 01:
In none of those cases, none, was the reference on its face the only thing that carried the day under 807.

[00:29:24] Speaker 01:
So perhaps there isn't a 7th Circuit case that says something like this can never be enough, but I can't find any 7th Circuit case that has held something like this is enough.

[00:29:36] Speaker 04:
Well, I know that the evidence is also admissible under 80317 that's applicable to market reports of similar commercial publications.

[00:29:47] Speaker 04:
I don't think there's any dispute that the Amazon RIS thing is published like catalog.

[00:29:52] Speaker 04:
And it's made with the expressed intent that the public rely on.

[00:29:56] Speaker 04:
And that's enough to satisfy the burden under that rule.

[00:30:01] Speaker 04:
And so pick your rule that's admissible under either.

[00:30:05] Speaker 00:
I don't remember.

[00:30:06] Speaker 00:
Was something other than 807 such as the rule you just mentioned argued to the district court or relied on by the district court for the admissibility?

[00:30:19] Speaker 04:
It was not, Your Honor, because the

[00:30:22] Speaker 04:
the document was admitted.

[00:30:24] Speaker 04:
There was no reason to give another basis for admitting the evidence.

[00:30:30] Speaker 04:
But if you look at the rules of evidence applicable here, it's admissible under either rule.

[00:30:45] Speaker 04:
And I guess with that, I'll rest.

[00:30:48] Speaker 01:
All right, Council.

[00:30:50] Speaker 01:
Mr. Dassault, I'll give you two minutes of rebuttal time, but please make certain that you limit yourself to issues related only to the cross-appeal.

[00:31:01] Speaker 03:
Thank you, Your Honor.

[00:31:04] Speaker 03:
I'll be real brief.

[00:31:05] Speaker 03:
With respect to the admission of the piece of evidence, 80317 was never considered or discussed by the district court.

[00:31:16] Speaker 03:
The only rule that the district court ever looked at or ever focused on was 807.

[00:31:22] Speaker 03:
So the idea that this somehow qualifies under 80317 is not supported by the record.

[00:31:28] Speaker 03:
I also don't believe that that qualifies under 80317, and we've indicated that in our briefs as well.

[00:31:34] Speaker 03:
Turning back to Judge Taranto's question with respect to the contract claims, Your Honor, I want to say not only is there issues here in this particular case,

[00:31:46] Speaker 03:
with respect to the contract claims.

[00:31:47] Speaker 03:
But there is, as we indicated in our statement of the related cases, a separate arbitration against Sycamore directly that is dependent upon whether or not this particular claim is invalid.

[00:32:00] Speaker 03:
So the issue of the contract and the validity of the contract goes beyond this particular lawsuit and its implications elsewhere.

[00:32:11] Speaker 01:
Council, returning to the admissibility of this evidence,

[00:32:15] Speaker 01:
Did you make the argument below that it could be Techcraft, not Amazon, that fills in that data field about when things were first available that there is not any evidence in this record that shows that that's even a representation that is being made by Amazon itself?

[00:32:33] Speaker 03:
We did not say it could have been filled in by Techcraft.

[00:32:36] Speaker 03:
What we did say, Your Honor, was that there was no showing who filled it in under what circumstances or anything like that.

[00:32:45] Speaker 01:
Where did you make that argument in particular?

[00:32:50] Speaker 03:
Well, we made it in a motion to eliminate prior to the admission into evidence.

[00:32:56] Speaker 03:
This was extensively briefed on motions to eliminate.

[00:32:59] Speaker 03:
We generally objected at the time that the admission was actually made at trial.

[00:33:06] Speaker 03:
And then again, the issue was briefed in post trial.

[00:33:09] Speaker 01:
But no, no, no, don't, don't worry.

[00:33:11] Speaker 01:
But, but I just want to be clear.

[00:33:13] Speaker 01:
You did in fact, so if I dig in and try to find this motion and lemonade, I am going to find that you did in fact expressly and particularly argue that there's no showing about who filled it in.

[00:33:25] Speaker 01:
So maybe you didn't say Techcraft may have filled it in instead of Amazon.

[00:33:29] Speaker 01:
You're just, but you did make the argument, clearly you made this argument that no showing who is filling in that data field about date first available.

[00:33:38] Speaker 03:
You know, I don't want to make that specific of a representation to the court.

[00:33:43] Speaker 03:
What I recollect very clearly is we repeatedly objected to this piece of evidence because there was no showing

[00:33:53] Speaker 03:
of anything about how it was filled in or under what circumstances.

[00:33:59] Speaker 03:
From my point of view, that is a complete failure of a proof.

[00:34:04] Speaker 03:
And as a result, it would encompass what we're arguing here on the field.

[00:34:10] Speaker 03:
But we did not make that specific argument in the district court.

[00:34:12] Speaker 01:
Well, you did not make what specific argument to the district court?

[00:34:16] Speaker 01:
The specific argument that it could have been TechCrack that filled it.

[00:34:20] Speaker 01:
OK.

[00:34:20] Speaker 03:
Or some other third party.

[00:34:22] Speaker 01:
So you did or didn't make an argument that there's no showing who filled it in?

[00:34:28] Speaker 03:
Again, I don't remember specifically saying we don't know who filled it in.

[00:34:32] Speaker 03:
I do remember saying very clearly at a number of points in the time in the trial court that we had no evidence about the circumstances under which this particular website was maintained.

[00:34:48] Speaker 01:
That's fine and we'll end the argument but I just want to say before we conclude this particular hearing today that both attorneys have made a number of arguments both in their briefs and during oral argument that weren't made below or didn't have any foundation in the record and that's not appropriate and it is not the way that you should be arguing appeals.

[00:35:17] Speaker 01:
It's just flat out inappropriate.

[00:35:20] Speaker 01:
So please be aware of that and try in the future to do a better job of forthrightly presenting and arguing your appeals.

[00:35:29] Speaker 01:
That's all.

[00:35:30] Speaker 01:
Thank you both, counsel.

[00:35:32] Speaker 01:
That concludes this case for today.