[00:00:00] Speaker 02:
Our next case is Precision Fabrics Group versus Titex International, 2019, 1751, and 1754.

[00:00:10] Speaker 02:
Ms.

[00:00:12] Speaker 02:
Borchers.

[00:00:19] Speaker 01:
May it please the court.

[00:00:21] Speaker 01:
The fundamental error by the district court was expressly declining to resolve a claim scope dispute that the court knew about prior to and during trial over the one and only word at issue on infringement.

[00:00:35] Speaker 01:
And that word is swells in the court's construction of the term intumescent.

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The court construed intumescent to mean chars and swells upon exposure to heat or flame.

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Titex admitted that the coating charred, and so under the court's claim construction, the only infringement issue at trial was does Titex's coating swell upon exposure to heat or flame.

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That answer was a binary decision, a yes or a no, based on does it swell or not.

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Repeatedly before and during

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the trial, TYTEX presented a different meaning of the word swells that required added limitations that were not in the court's claim construction.

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Examples of those added definitions to swells

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is that swell means does it swell enough?

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That's at Appendix 3290.

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Does it swell significantly?

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That's at Appendix 2785.

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Does it swell in an appropriate way?

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That's at Appendix 2780.

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Does it swell to a high value?

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Appendix 2781.

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Does it swell to an unacceptable level?

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That's at Appendix 2781.

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Counsel, your brief raises also as a procedural

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concerns and objections.

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But isn't this case basically about the jury finding there was no infringement based on a claim construction provided by the court that seems reasonably correct?

[00:02:12] Speaker 01:
No, Your Honor.

[00:02:13] Speaker 01:
We believe that this is an O2 micro case where there was an active and live unresolved claim scope dispute, that the court erred in finding went to the factual issue of infringement.

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We believe that was the fundamental error by the court.

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When we moved in the motion in Lumine to preclude TYTEX from offering a different meaning for swells,

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at trial.

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The court expressly recognized O2 micro but concluded that under O2 micro, this wasn't a claim scope dispute, this was a factual question relating to the test for infringement.

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We submit that was the fundamental error and that continued through trial.

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The trial sheckered

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Trial record shows that PFG and TYTEX consistently throughout the trial presented to the jury two different meanings of the word swells.

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PFG consistently said swells mean swells, what's in the construction.

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And that testimony was in PFG's opening, in Dr. Pod's testimony about every single sample that he tested, that that's what swelling means, and in PFG's closing.

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In contrast, consistently throughout the trial, TYTEX argued a different meaning of swelling to the jury through witness examination and in its closing argument.

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Perhaps there's several examples of this in our brief.

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There's two in particular that I'll highlight right now.

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which is that over PFG's objection during Dr. Horrocks' testimony, Dr. Horrocks was allowed to testify that swells has a certain meaning to one of ordinary skill in the arc.

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That is the claim of construction question, yet he was allowed to say that.

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And then he went on to say, at one point specifically,

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I was looking for a change in dimension and the change in dimension for material which is defined as one which swells and chars more than a little.

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So he said his definition for swelling was it swells and chars more than a little, which is not in the construction and is improperly adding limitations.

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That's at appendix 2853 through 2854.

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Dr. Horrocks also, throughout his testimony, said that whether he chose his engineering caliber, for example, because he needed to determine whether it was swelling more than a little.

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Again, he's saying the definition is more than a little.

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And that swelling has to be in an appropriate way, as one would expect a material of this type to swell if it was swelling

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a swelling, intumescent-like material."

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And these quotes are from Appendix 2780 to 2782.

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Dr. Horrocks also said, for material which swells and chars, one would expect quite a high value, the increase to a high value, and that

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when looking for entomacence, he said, quote, we have to agree.

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What is acceptable level of swelling and what is a little level of swelling, if you like?

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What is more than a little and what is less than a little?

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And likewise, in Titex's closing argument, Titex also argued, based on Dr. Horak's testimony and testimony that were challenging from Mr. Wildman and from Mr. Holland, that

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In order to be a real intumescent, the intumescent has to have a very high amount of carbon.

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That's not in the court's construction.

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And in their closing, they said that an intumescent, based on the witness testimony, has to pop out like popcorn.

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That's not in the court's construction.

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So the fundamental error here was that it was left to the jury for the jury to decide what is the scope of the meaning swells.

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This error in allowing the jury to decide that was an error of law that this court reviews de novo, and it was highly prejudicial to PFG.

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PFG, of course, prepared its case and presented its case based on the court's actual construction.

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And it was, it was error to have the witnesses and titex arguing to the jury that the standard, the definition of infringement was something different than what the court had said that it was.

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So PFG requests that this court reverse the jury verdict and enter judgment as a matter of law under the court's correct claim construction without TYTEX's additional limitations.

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And we submit that under that correct claim construction, substantial evidence does not exist to support the jury's non-infringement verdict.

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TYTEX had admitted that every other limitation in the claims at issue were present.

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All of Dr. Bott's testing showed that the coating swells.

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And even Dr. Horrocks testified on cross-examination that Dr. Bott's aluminum pan testing showed swelling.

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And that's at appendix 2848.

[00:07:31] Speaker 02:
Can you address the doctrine of equivalence issue?

[00:07:37] Speaker 01:
Yes.

[00:07:39] Speaker 01:
So on the doctrine of equivalence,

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We filed an eliminate motion to preclude Dr. Horrocks from testifying on the doctrine of equivalence because it was untimely.

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It was not contained in his expert report.

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The court, in denying our motion, found instances in his report where the word function was present and said that magic words aren't required and that the disclosure of this word function was enough to disclose the opinion.

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That was error to allow that.

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The expert report had no opinion on the Doctrine of Equivalence and the portion of the report that the court pointed to was actually in a claim construction section of the report.

[00:08:28] Speaker 01:
And he, Dr. Horace, simply never disclosed that in his... If we agreed with you, what would the remedy be?

[00:08:36] Speaker 01:
The remedy on this is abuse of discretion and so but here we believe that the remedy would be that you could reverse and enter judgment as a matter of law because once you remove Dr. Horrocks improper opinion on the

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on doctor of equivalence, then the evidence that is left was Dr. Bott's testimony under the doctor of equivalence.

[00:09:02] Speaker 03:
Yeah, but you have the burden of proof.

[00:09:04] Speaker 01:
Yes.

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If they put on no evidence at all, isn't the jury permitted to conclude that they didn't believe your expert or didn't agree with you?

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Isn't it possible that you put on evidence of infringement under the doctor of equivalence and the jury could still conclude you didn't prove infringement even though they put on no evidence?

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I believe that the standard is that the jury, that there would have to be no substantial evidence to support the jury's verdict of no infringement under the doctrinal equivalent.

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And here, there was substantial evidence to support a verdict of.

[00:09:40] Speaker 03:
That's not the question.

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You didn't say that right at all.

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The question is, is there substantial evidence to support the jury's verdict?

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The jury could reject your expert's testimony.

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You have the burden of proof on the issue of infringement.

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The jury could reject your expert's testimony because they thought he was incredible, even if they put on nothing.

[00:10:01] Speaker 03:
So I don't see how you get Jamal.

[00:10:03] Speaker 01:
I understand your point.

[00:10:04] Speaker 01:
You know what?

[00:10:05] Speaker 03:
I think he would have gotten a bit of a new trial, but you didn't ask for it.

[00:10:08] Speaker 01:
We did ask for a new trial on that.

[00:10:10] Speaker 03:
No, you didn't.

[00:10:11] Speaker 03:
Go back and look yourself.

[00:10:12] Speaker 03:
Have him look right now on rebuttal.

[00:10:14] Speaker 01:
I will look, and I'll address it on rebuttal.

[00:10:18] Speaker 03:
But to your point- He filed a motion for a new trial, but it was only on that willfulness testimony you didn't like.

[00:10:23] Speaker 03:
Did you include this on DOE?

[00:10:25] Speaker 03:
You could have potentially gotten a new trial.

[00:10:28] Speaker 01:
I will check the record on that, Your Honor.

[00:10:34] Speaker 01:
While the jury could have disregarded or not believed Dr. Bott's testimony, without the improper testimony on the doctrine of equivalence, the only evidence that was left on the record was Dr. Bott's testimony on the doctrine of equivalence.

[00:10:50] Speaker 03:
This is also where you're wrong.

[00:10:51] Speaker 03:
This guy was free to testify about function because he had included it in his expert report.

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And then the attorney could have spun that.

[00:10:58] Speaker 03:
You're right.

[00:11:00] Speaker 03:
He should never have said the word equivalence.

[00:11:02] Speaker 03:
It was not permissible.

[00:11:04] Speaker 03:
I agree.

[00:11:06] Speaker 03:
But what he could have offered and did offer was testimony regarding function and how these things function because he had expressly addressed that in his expert report.

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And then the attorney could have stood up and said,

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His testimony regarding function likewise proves there can be no DOE because it's got to have the same function way result.

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And so there was testimony that went to equivalence even when I exclude as inadmissible his statements about DOE in particular.

[00:11:33] Speaker 03:
And so that's sort of another problem you have is, to be honest with you, the inadmissible statements, and I agree with you, they should have been inadmissible,

[00:11:40] Speaker 03:
those inadmissible statements aren't the only evidence they had that pertained at all to function, weigh, and result, and that other evidence would still be in.

[00:11:54] Speaker 01:
On the issue of Doctrine and Equivalence, I hear what you're saying.

[00:12:00] Speaker 01:
It also does not address that the evidence that we submitted that TYTEX knew from its supplier on the day that suit was filed that

[00:12:10] Speaker 01:
that the coding forms an intumescent char and behaves as an intumescent is what the supplier told TYTAX on the day that suit was filed and that evidence was put into the jury as well as Dr. Bott's testing.

[00:12:25] Speaker 01:
I'm not sure that I agree with Your Honor that Dr. Horrocks being allowed to testify about function as a basis for doctrine of equivalent opinion to be able to actually say there's no infringement under the doctrine of equivalent when he had never disclosed that opinion.

[00:12:47] Speaker 03:
I told you I agree with him.

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He can't say anything about doctrine of equivalence, but what he could testify to is function and then the attorney argument

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could explain how his testimony on function applies equally to this other area.

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That's your problem.

[00:13:03] Speaker 03:
Don't think I didn't read it all, I did.

[00:13:04] Speaker 03:
It's a lot to read.

[00:13:06] Speaker 02:
I understand that it's a lot to read, yes.

[00:13:08] Speaker 02:
You're into your rebuttal time?

[00:13:11] Speaker 02:
Yes, I'll save my rebuttal time.

[00:13:13] Speaker 02:
Thank you.

[00:13:14] Speaker 02:
Mr. Jones.

[00:13:19] Speaker 00:
Good morning, Your Honors, and barely.

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And may it please the Court.

[00:13:23] Speaker 02:
Good timing is right in front of you.

[00:13:25] Speaker 00:
You're right.

[00:13:27] Speaker 00:
Your Honors, I'll go ahead and hit a couple of points PFG just made.

[00:13:31] Speaker 00:
The first is that she cited two things in the testimony of Dr. Horrocks that she complains about.

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One is testimony concerning swelling in an appropriate way, and that's at page

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appendix 2780 through 2781.

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Then the other one she talked about was significant swelling and scientifically significant swelling.

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That's at page 2785.

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both of the objections to that testimony were sustained at trial.

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And PFG never asked for a curative instruction.

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It was their burden to object to it, and they did, but the court sustained those objections.

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And then it was their burden to ask for a curative instruction immediately after the sustaining of that objection.

[00:14:23] Speaker 00:
They didn't do that.

[00:14:24] Speaker 00:
That's the same issue with respect to Mr. Holland's testimony and Mr. Wildman's testimony.

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PFG was instructed several times during trial that the judge was going to take the case or the questioning question by question.

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and that if you don't like a question, then object.

[00:14:44] Speaker 00:
The court time and time again told PFG to do that, and they did not with respect to Mr. Highland's testimony and Mr. Wildman's testimony.

[00:14:54] Speaker 00:
Now, the issue of Dr. Porat's testimony on doctrine of equivalence is really a red herring.

[00:15:01] Speaker 00:
it's harmless whether it's excluded or not, because there's ample testimony that was not objected to from both Mr. Wildman and Mr. Highland regarding the substantially same way prong of the Doctrine of Equivalence test.

[00:15:17] Speaker 00:
And that testimony was the same as Dr. Horowitz's testimony.

[00:15:21] Speaker 03:
That's not the test.

[00:15:23] Speaker 03:
If you have inadmissible testimony that goes to the heart of an issue by an expert, the test isn't

[00:15:30] Speaker 03:
Okay, well even if that testimony was in fact admitted and the jury heard it and wasn't informed to disregard it, is there other stuff on the record they could have based their verdict on?

[00:15:41] Speaker 03:
We can't get inside their heads and no, maybe they based their verdict entirely on him.

[00:15:46] Speaker 03:
He seems like a very likable witness.

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I read his whole testimony.

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I thought to myself, I have no doubt this man appealed to that jury in South Carolina.

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No doubt in my mind.

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I read his testimony.

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He's an excellent expert.

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I mean, he must have thrown you off a little bit when he said, I met the doctor two days ago.

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So you may not share my opinion, and I would understand why.

[00:16:02] Speaker 03:
But all of that being said, the test isn't, is there some other evidence the jury could have based their decision on?

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The test is, is there a reason to be concerned that the inadmissible testimony may have prejudiced the verdict?

[00:16:16] Speaker 00:
And that would be the case, Your Honor, if it was a new trial request.

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And you're exactly right.

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There is no new trial requested here based on that testimony, based on the exclusion of Dr. Horrocks.

[00:16:29] Speaker 03:
No, you're right.

[00:16:29] Speaker 03:
And they framed it as a JMAW.

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And by framing it as a JMAW, I have to decide that they're entitled to an entire verdict the other way in light of all the evidence, not just whether this verdict could have tainted the judgment.

[00:16:42] Speaker 00:
That's right, Your Honor.

[00:16:43] Speaker 00:
And with respect to that issue, there was ample evidence in the record that there was no swelling.

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There was ample evidence that the jury, the court, the parties understood that the issue was swelling or no swelling, not some degree or amount of swelling.

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The parties and the court said in their closing and opening statements and in the jury instructions 19 times

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that the issue was swelling versus no swelling.

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And what evidence did high techs present on that issue?

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They presented the evidence primarily from Dr. Horrocks, and that testimony is not challenged here on appeal.

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Dr. Horrocks' testimony on the lack of swelling is not challenged here today.

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Dr. Horrocks had two separate independent bases.

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for concluding that there was no swelling.

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First of all, he had conducted tests.

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His testing showed, in his own words, his test results were that there was no swelling, close quote, quote, there was no swelling, close quote.

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That testimony alone was enough evidence for the jury to conclude that there was no swelling.

[00:17:55] Speaker 00:
But he did more than that, Your Honors.

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He, based on his knowledge and understanding of chemistry, he looked at the formulation of the SVX 41 coding.

[00:18:05] Speaker 00:
And he said that it could not swell.

[00:18:08] Speaker 00:
Not only that it did not swell, but there was nothing in it, there was no swelling agent in the formulation that would allow it to swell.

[00:18:17] Speaker 00:
The PFG doesn't challenge either bits of that testimony today on appeal.

[00:18:22] Speaker 00:
And so either bit of evidence, either one of those two pieces of evidence is sufficient for the jury to evase the conclusion of no swelling on.

[00:18:33] Speaker 00:
And Your Honor, you're exactly right.

[00:18:35] Speaker 00:
Earlier in questioning, you asked about could the jury have just discredited, disbelieved the testimony of PFG's expert?

[00:18:44] Speaker 00:
Absolutely.

[00:18:45] Speaker 00:
They had the burden of proof.

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So it was their burden to put on proof that was credible and believable that from which a jury could find.

[00:18:53] Speaker 00:
But as this court recently recognized, I think in December, in the Syngenta versus Willow Wood case,

[00:19:01] Speaker 00:
The issue is not or the question is not whether evidence supports an appellate's position.

[00:19:07] Speaker 00:
The question is whether or not the evidence supports the jury's verdict.

[00:19:12] Speaker 00:
That's the question.

[00:19:14] Speaker 00:
Now, PFGE focused most of its briefing

[00:19:17] Speaker 00:
on showing its evidence, the evidence from Dr. Byatt, its evidence that shows that it swells.

[00:19:24] Speaker 00:
Well, again, Your Honors, that's not the test.

[00:19:27] Speaker 00:
And this case is not an O2 micro case.

[00:19:30] Speaker 00:
This test is Verizon versus Cox Fibernet.

[00:19:34] Speaker 00:
It is eerily similar.

[00:19:35] Speaker 00:
It is on all fours with Verizon.

[00:19:38] Speaker 00:
First and most importantly, this is not a question of law.

[00:19:42] Speaker 00:
If claim construction had been appealed, and of course they wouldn't have appealed claim construction because the court adopted their claim construction word for word.

[00:19:50] Speaker 00:
The court rejected our claim construction.

[00:19:53] Speaker 00:
They had the opportunity, PFG had the opportunity, if they didn't like the use of the word swells, which is what they proposed,

[00:20:01] Speaker 00:
then they had every opportunity to use a different word, to give a further interpretation of the word swells, to get the judge to say that swelling meant one micron increase in size.

[00:20:15] Speaker 00:
It had all that opportunity.

[00:20:17] Speaker 00:
But it didn't do that.

[00:20:18] Speaker 00:
PFG presented a proposed construction.

[00:20:21] Speaker 00:
The court adopted it word for word.

[00:20:24] Speaker 00:
Now, this case is exactly like Verizon.

[00:20:27] Speaker 00:
In the Verizon case, this court said that the

[00:20:30] Speaker 00:
The district court applied Fourth Circuit law, which thank goodness is the same law we're here applying today.

[00:20:38] Speaker 00:
Fourth Circuit law.

[00:20:40] Speaker 00:
And in that case, this court said that whether the jury was deprived of its ability to decide the case is reviewed for an abuse of discretion.

[00:20:49] Speaker 00:
Just as in Verizon.

[00:20:51] Speaker 00:
The parties and the district court reminded the jury of the claim construction many times.

[00:20:57] Speaker 00:
I've already mentioned 19 different times.

[00:20:59] Speaker 00:
And Verizon, just as in Verizon, PFG never objected to the jury instructions, did not object at all to TYTEX's opening statement and this closing statement issue that PFG just presented.

[00:21:13] Speaker 00:
PFG did not object to it.

[00:21:15] Speaker 00:
They didn't object and ask the court to issue a curative instruction regarding the closing statement.

[00:21:23] Speaker 00:
Just as in Verizon, TyTex's own expert, our Dr. Horrocks, acknowledged the proper claim construction when he said on the stand, and this is a quote, that the quote, whole issue is swelling, close quote.

[00:21:38] Speaker 00:
He understood that was the issue, the jury understood that was the issue, and that's the testimony and the evidence that we presented.

[00:21:46] Speaker 00:
Just as in Verizon, PFG is not asserting that the claim construction was incorrect.

[00:21:51] Speaker 00:
I mean, how could they?

[00:21:53] Speaker 00:
They won the claim construction.

[00:21:58] Speaker 00:
In addition, this whole issue about doctrine of equivalence, and Judge Moore, I understand your point that our expert witness used the words doctrine of equivalence, but he's not a normal patent law expert.

[00:22:12] Speaker 03:
You couldn't have a patent law expert testify as one.

[00:22:14] Speaker 00:
That's right, Your Honor.

[00:22:15] Speaker 00:
Back when I first came along, we had patent law experts.

[00:22:19] Speaker 03:
Well, I used to testify as one.

[00:22:21] Speaker 00:
I understand, Your Honor.

[00:22:22] Speaker 03:
And then I wrote the opinion that said it can't happen anymore.

[00:22:25] Speaker 00:
Well, and in some respects, I'm glad that's the case.

[00:22:29] Speaker 00:
But he's a technical expert.

[00:22:31] Speaker 00:
This is the first time he'd ever testified.

[00:22:34] Speaker 00:
And he's a professor.

[00:22:36] Speaker 00:
50 years of experience in entomacic chemistry, PhD chemist.

[00:22:41] Speaker 00:
In fact, he published the...

[00:22:43] Speaker 03:
be easy to find a really likeable guy with that pedigree and you did I can tell when I read the transcript he's very likeable but I mean you must have just you must have just lost it when he said I only met the doctrine two days ago after you had gained the judges agreement that it could come in because he read his earlier opinion as having offered enough

[00:23:05] Speaker 03:
that everyone should be on notice, he's going to give an opinion on DOE.

[00:23:09] Speaker 03:
And then this guy in response to your question says, I met it two days ago, I don't know.

[00:23:14] Speaker 03:
Your Honor, actually I... I can't even imagine what you were going through at that exact moment in time.

[00:23:19] Speaker 00:
Your Honor, it struck me a little odd, but he actually is right, because it didn't matter that he didn't use the magic words doctrine of equivalence in his report or in his deposition.

[00:23:33] Speaker 03:
He didn't give an opinion in his report on DOE.

[00:23:35] Speaker 03:
He gave an opinion on function, and you as an attorney could have

[00:23:39] Speaker 03:
put on his opinion on function and then you could have explained to the jury that's one of the necessary elements for DOE this guy should not and you know it makes me a little sad because this judge did such a great job he can't possibly have a ton of patent cases and he was so careful question by question on this but he shouldn't have allowed this person to testify on DOE and you shouldn't have tried to get it you already had a strong case

[00:24:01] Speaker 00:
Well, Your Honor, he frankly, he testified on Doctrine of Equivalence, but he testified on exactly what Your Honor mentioned, which is he testified... Yeah, and that I would let stay in.

[00:24:10] Speaker 03:
The inadmissible part is when you tried to get him to go further and actually answer the ultimate question.

[00:24:17] Speaker 03:
That's the inadmissible part, and that's just a little too far.

[00:24:19] Speaker 03:
It's like a little bit of hubris.

[00:24:21] Speaker 03:
You know, you had the judge agreeing with you, so you were going to take it as far as you could possibly take it.

[00:24:26] Speaker 03:
Actually, Your Honor... To your detriment.

[00:24:28] Speaker 00:
Actually, Your Honor, I did not write and I questioned him on the stand.

[00:24:32] Speaker 03:
I didn't use it.

[00:24:33] Speaker 00:
I didn't use the term Doctor of Equivalence.

[00:24:36] Speaker 00:
He used it first in an answer under Doctrine of Equivalence.

[00:24:40] Speaker 00:
And I don't know what page is on, but I can give that to the court.

[00:24:43] Speaker 00:
But he used it.

[00:24:44] Speaker 00:
I asked him a question.

[00:24:45] Speaker 00:
I said, so what are the what are your conclusions?

[00:24:48] Speaker 03:
Let me read it to you because you're wrong.

[00:24:50] Speaker 03:
No, I'm sorry.

[00:24:51] Speaker 03:
I'm talking about just in general, the Doctrine of Equivalence.

[00:24:54] Speaker 03:
This is you speaking.

[00:24:56] Speaker 03:
It's on page 2809.

[00:24:57] Speaker 03:
So be really careful with me.

[00:25:00] Speaker 03:
No, I'm sorry.

[00:25:01] Speaker 03:
I'm talking just in general about the doctoral equivalence.

[00:25:04] Speaker 03:
Is it your understanding the doctoral equivalence involves a comparison of the ways and the function and the result of the intuminescent coding set forth in the patent versus SBI X41?

[00:25:15] Speaker 03:
Answer.

[00:25:16] Speaker 03:
I've only met this equivalence and I can't say in the last two days, so I'm not too clear about it.

[00:25:22] Speaker 03:
You did use the words.

[00:25:23] Speaker 03:
You did ask the question.

[00:25:25] Speaker 00:
Your Honor, if I could ask your indulgence to turn back a prior page to Appendix 2808, he's the one that used equivalents first.

[00:25:36] Speaker 00:
If you'll look at line 15, the answer

[00:25:41] Speaker 00:
I asked him, what conclusions did you draw here?

[00:25:43] Speaker 00:
And he said, well, since my conclusion is that the SVX 41 coding does not swell, that means that TYTEX has not infringed the patents either in the literary criteria, which again, he meant literal infringement.

[00:25:57] Speaker 00:
or in the equivalence criteria.

[00:26:00] Speaker 00:
My point was not that I didn't ask the question on equivalence.

[00:26:04] Speaker 00:
My point was that he brought it up, so I had to ask him what equivalence was.

[00:26:08] Speaker 03:
Well, you also knew that you were going to ask him what equivalence was, because they made a motion in limine not to let you do it, and you defended your right to do it.

[00:26:15] Speaker 03:
So there's no question where you were going.

[00:26:18] Speaker 03:
It's not like it came up inadvertently unbeknownst to you.

[00:26:21] Speaker 03:
There was a motion to exclude it.

[00:26:22] Speaker 00:
That's right, Your Honor, and the way I had planned on questioning him was to get in the information about substantially same way, and that the two types of chemistry, flame-retardant chemistry, which is what the SVX-41 coding uses, is exactly what Martin Wildman and Mr. Holland, the company that developed the coding, said.

[00:26:46] Speaker 00:
Flame-retardant chemistry operates to extinguish and snuff out a flame.

[00:26:51] Speaker 00:
That's unlike thermal barrier chemistry, intermescent barrier chemistry, which swells and chars to create a thermal barrier.

[00:26:59] Speaker 00:
And Dr. Horrocks, in both his report and at his deposition, in fact, in response to a question from PFG's attorney at the deposition, talked about the thermally protective barrier that is created by an intermescent coating.

[00:27:15] Speaker 03:
Yeah, but it has to be in his report.

[00:27:16] Speaker 03:
It doesn't matter if they question him about it in the deposition.

[00:27:18] Speaker 03:
It has to be in his report.

[00:27:20] Speaker 03:
I saw in his report at least enough that he could have talked about function.

[00:27:23] Speaker 03:
I don't know that I would have agreed to more than that, but you could have certainly taken that and run with it.

[00:27:28] Speaker 03:
But he didn't.

[00:27:29] Speaker 03:
He shouldn't have been talking about DOE.

[00:27:32] Speaker 03:
But anyway, we've been through it.

[00:27:33] Speaker 03:
We've covered it.

[00:27:34] Speaker 00:
Okay.

[00:27:34] Speaker 00:
Thank you, Your Honor.

[00:27:35] Speaker 00:
Well, I see that I'm almost out of time, so I would be remiss if I didn't mention one last thing, and that is that PFG is wrong about TYTEX's alternative ground for affirmance here.

[00:27:48] Speaker 00:
They say that it was not supported by evidence at trial.

[00:27:51] Speaker 00:
Our claim construction was that the inter-medicine definition required something called a carbonific.

[00:27:59] Speaker 00:
Well, there was evidence at trial that there was no carbonific.

[00:28:02] Speaker 00:
Mr. Holland twice said that the SVX 41 coding does not contain a carbonific.

[00:28:07] Speaker 00:
That's an appendix page 2702.

[00:28:10] Speaker 00:
And then PFG asked Dr. Horrocks, when he was on the stand, I didn't ask him this, they asked him whether or not the Tytex coating had a carbon defect.

[00:28:20] Speaker 00:
He testified that it did not.

[00:28:22] Speaker 00:
And that's an appendix page 2836.

[00:28:24] Speaker 00:
Thank you, Your Honor.

[00:28:26] Speaker 02:
Thank you, Counsel.

[00:28:29] Speaker 02:
Ms.

[00:28:29] Speaker 02:
Borchers has a little more than two minutes rebuttal.

[00:28:34] Speaker 01:
Thank you.

[00:28:39] Speaker 01:
First, there is no waiver of the O2 micro issue in this case.

[00:28:43] Speaker 01:
PFG raised the issue pretrial in a motion in Lumine and then continued to raise it throughout trial.

[00:28:52] Speaker 01:
And this case is like GPNE in that respect, not in Verizon, where in GPNE, the court said that there was no waiver where a party had raised its objections to the claim scope dispute before the case went to the jury.

[00:29:08] Speaker 01:
And that's the case here.

[00:29:09] Speaker 01:
The fact that we continued to try to object but maybe didn't object to each and every instance in a long trial where we did end up in sidebars for a fifth of our trial time doesn't mean we waived anything.

[00:29:25] Speaker 01:
The O2 micro issue was preserved and we didn't waive it.

[00:29:29] Speaker 01:
This case is not like Verizon where in the Verizon case, Verizon

[00:29:36] Speaker 01:
The court found that Verizon never identified a claim scope dispute prior to or during the trial.

[00:29:42] Speaker 01:
That was not the case here.

[00:29:47] Speaker 01:
The opposing counsel indicated that lack of swelling testimony by Dr. Horrocks is not challenged here today.

[00:29:55] Speaker 01:
We have challenged that testimony because we said that his testimony was offered, his opinions were under the wrong meaning of the word swells.

[00:30:05] Speaker 01:
And so we very much challenge that testimony.

[00:30:09] Speaker 01:
And our brief at Page's

[00:30:12] Speaker 01:
19-29 lists an extensive number of examples where Dr. Horrocks redefined the meaning of the word swells to add further limitations to it.

[00:30:27] Speaker 01:
And then with respect to the issue of doctrinal equivalence, and I apologize, we don't have our briefing here in the courtroom on

[00:30:38] Speaker 01:
our underlying motion to the district court for a new trial.

[00:30:43] Speaker 01:
We do have our briefs here to this court and the judge's order on our underlying motions.

[00:30:51] Speaker 01:
And as far as the briefing to this court, we did conclude our brief by asking for a saying judgment should be entered for PFG or in the alternative a new trial should be ordered.

[00:31:06] Speaker 01:
with respect to all of these issues.

[00:31:09] Speaker 01:
I think your question was about the underlying motion, though.

[00:31:12] Speaker 01:
And unfortunately, I don't have that portion of the record with me.

[00:31:17] Speaker 02:
Thank you, counsel.

[00:31:18] Speaker 02:
Thank you.