[00:00:00] Speaker 01:
Okay, the next case before the court is Sassow Golf Inc.

[00:00:03] Speaker 01:
versus Nike Inc., case number 20-1456.

[00:00:08] Speaker 01:
It's an appeal from a decision from the Northern District of Illinois.

[00:00:15] Speaker 01:
Ms.

[00:00:15] Speaker 01:
Sassow, are you ready to argue?

[00:00:18] Speaker 00:
Yes, I am ready.

[00:00:21] Speaker 01:
Oh, I'm sorry, Ms.

[00:00:22] Speaker 00:
Sassow.

[00:00:24] Speaker 01:
You may begin.

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

[00:00:27] Speaker 00:
Good morning, may it please the court, Meg Pesulo on behalf of Sassogolf.

[00:00:33] Speaker 00:
Under Nautilus, Nike has the burden of proof to prove with clear and convincing evidence that the claim fails to inform with reasonable certainty the person of skill about the scope of the invention.

[00:00:48] Speaker 00:
Nike has not carried that burden here.

[00:00:51] Speaker 00:
There is no evidence on the actual decisive question

[00:00:57] Speaker 00:
which is whether a person of skill can identify the boundaries or edges of the toe and heel with reasonable certainty.

[00:01:06] Speaker 00:
Nike tells the court numerous times that there is allegedly undisputed expert testimony, but there is no such thing.

[00:01:15] Speaker 00:
The expert declarations that Nike cites were filed years before the present dispute was crystallized.

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And when the dispute was about a different topic,

[00:01:26] Speaker 00:
In particular, whether the toe and heel were region or particular points.

[00:01:34] Speaker 01:
Ms.

[00:01:34] Speaker 01:
Fasulo, I certainly understand your point that Judge Wood's opinion leaves a lot to be desired in terms of completeness, but is it really necessary to send it back just to have the court walk through the nautilus factors and ultimately reach the same conclusion?

[00:01:59] Speaker 00:
Your Honor, I believe here the crucial thing that is missing is any record evidence from Nike on this question of whether the person of skill can identify the boundary or the edge of the toe and heel.

[00:02:15] Speaker 00:
So it's not as if the court could walk through any evidence to support its decision under Nautilus.

[00:02:24] Speaker 00:
That evidence simply is missing.

[00:02:26] Speaker 00:
And Nike has the burden here

[00:02:29] Speaker 00:
Nike hasn't put forth any of the evidence that the district court would need to rely on in order to reach the conclusion that the claims are indefinite.

[00:02:41] Speaker 02:
Counselor, isn't it the problem here that the sparseness of the district court opinion that's before us?

[00:02:51] Speaker 02:
It's really difficult because of its lack of completeness to read that

[00:03:00] Speaker 02:
that opinion and to find, you know, a foothold by which we can actually review what the court was thinking about.

[00:03:08] Speaker 00:
Yes, Your Honor.

[00:03:10] Speaker 00:
I think that is an excellent point.

[00:03:12] Speaker 02:
The district court's opinion... So back to Judge O'Malley's question, do we have to send it back in order to have that type of review?

[00:03:21] Speaker 02:
Can we do it?

[00:03:22] Speaker 02:
Can we apply the Nautilus standard and do that?

[00:03:26] Speaker 00:
Yes, your honor.

[00:03:26] Speaker 00:
You can apply the Nautilus standard and conclude that the claim is not indefinite because Nike has not carried its burden.

[00:03:35] Speaker 02:
But are we able to also apply the Nautilus standard and conclude that it is indefinite?

[00:03:42] Speaker 00:
I don't think that the court can reach that conclusion.

[00:03:45] Speaker 00:
Nautilus makes clear that the perspective of the person of skill in the art is a really important part of the inquiry.

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and that is borne out in later case law as well.

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And there is no evidence in this record that a person of skill would be confused about the toe or heel regions or how to determine those regions.

[00:04:10] Speaker 00:
In fact, the... Go ahead.

[00:04:15] Speaker 02:
Go ahead, Judge O'Mah.

[00:04:17] Speaker 01:
No, I was just saying that with respect to what is the toe region and what is the heel region, those were already...

[00:04:24] Speaker 01:
terms were already defined by the other judges, the previous judges, correct?

[00:04:30] Speaker 00:
That is correct.

[00:04:31] Speaker 00:
The first judge to weigh in on claim construction here did construe toe and heel as regions, and that judge recognized that toe and heel are terms of art that a person of skill is well aware of and can apply.

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And those constructions have never been challenged by Nike.

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And so they are still, they stand today.

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And with that understanding, a person of skill would understand how to look at a golf club and identify where those regions are.

[00:05:08] Speaker 00:
There are regions that are within the skill of the person of art to identify and do so with reasonable certainty.

[00:05:19] Speaker 04:
This is Judge Hughes.

[00:05:21] Speaker 04:
Can I interrupt just a minute?

[00:05:22] Speaker 04:
I understand your argument about everybody knowing where the toe and heel are, and that they're regions, and that that's all undisputed.

[00:05:29] Speaker 04:
But isn't the problem here that where you measure within that region will impact the actual curvature measurement?

[00:05:39] Speaker 04:
And so what we have to know is not where the regions are, which is undisputed, but where the edge of each region is.

[00:05:49] Speaker 00:
Yes, that is correct.

[00:05:52] Speaker 04:
And what in the specification or the claims or the record suggests that a skilled artisan would know where to determine the edge of the heel and the toe?

[00:06:07] Speaker 00:
The construction of these terms and the recognition that they are terms of art that a person of skill understands supplies the evidence

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that a person of skill could determine these with reasonable certainty.

[00:06:23] Speaker 00:
But I think, Judge Hughes, that you are identifying the crucial thing that is missing here, which is that there is no evidence in the record that a person of skill could not identify these with reasonable certainty.

[00:06:37] Speaker 00:
And because Nike carries the burden here, that crucial missing evidence

[00:06:44] Speaker 00:
must fall on Nike?

[00:06:46] Speaker 04:
Well, I understand you want to argue that it's a burden issue, and maybe that's all you've got.

[00:06:49] Speaker 04:
But I want to ask you the affirmative question.

[00:06:52] Speaker 04:
Where in the specification does it tell us how to look at the heel and toe region and define what the edge is?

[00:07:01] Speaker 00:
You're correct, Judge.

[00:07:03] Speaker 00:
The patent itself does not give clear evidence of where to determine the edge of a heel or toe.

[00:07:12] Speaker 00:
the NATO standard doesn't require that a claim be defined so precisely, so long as the person... Well, let me interrupt you again.

[00:07:23] Speaker 04:
Let me interrupt you again, because I think it's important here.

[00:07:26] Speaker 04:
The edge is actually critical for determining this curvature radius, right?

[00:07:31] Speaker 04:
And if the edge is located, you know, a quarter of an inch backwards or forwards in the toe and heel regions, it will affect the measurement.

[00:07:39] Speaker 04:
Isn't that true?

[00:07:41] Speaker 00:
I would disagree with that.

[00:07:43] Speaker 00:
There's certainly the possibility that it could affect the measurement.

[00:07:48] Speaker 00:
But there's no evidence that it will affect the infringement question.

[00:07:54] Speaker 04:
And Presidio... I'm not asking about... See, you want to confuse infringement and indefiniteness.

[00:08:00] Speaker 04:
And we need to know where the edge is so the jury can be instructed to determine, here's how you do the measurement and here's where you find the edge.

[00:08:08] Speaker 04:
then you determine whether the infringing articles infringe that thing.

[00:08:14] Speaker 04:
I just don't understand how, given the way, you know, golf clubs had to work and the different shapes, how a half inch forward or a half inch back in the region wouldn't drastically affect the measurement in some cases.

[00:08:30] Speaker 04:
It's not an infringement question if we can't decide what the point is in the first place.

[00:08:35] Speaker 04:
Is your answer just that there's nothing in the specification that tells us where the edge of it, the toe and the heel is?

[00:08:41] Speaker 04:
And all we have is, I think, fairly high-level testimony from your experts saying a skilled artisan would be able to figure this out.

[00:08:51] Speaker 00:
Yes, that is correct.

[00:08:52] Speaker 00:
The specification does not explicitly tell a person of skill where the precise edge is.

[00:09:00] Speaker 00:
There is testimony.

[00:09:02] Speaker 00:
And the court found that these are terms of art that a person of skill understands, but... Well, the court found that toe and heel are terms of art.

[00:09:14] Speaker 04:
I don't see anywhere where the court found or any evidence that a person with a skilled artist would definitely understand how the patent specification is using the term edge and precisely where the edge is.

[00:09:27] Speaker 04:
It seems to me that these are front and back regions of a golf club.

[00:09:30] Speaker 04:
And sure, we generally know where they are.

[00:09:33] Speaker 04:
But the precise point where it changes from the edge of the toe to whatever you're calling the further middle of the clubs towards the endpoint is not precise.

[00:09:44] Speaker 04:
And I don't see any expert testimony saying anybody would understand that the toe ends here where the heel ends there.

[00:09:52] Speaker 04:
Is that correct?

[00:09:54] Speaker 00:
That is correct.

[00:09:54] Speaker 00:
And the lack of evidence on this point needs to fall

[00:10:00] Speaker 00:
on Nike because Nike carries the burden of proving with clear and convincing evidence.

[00:10:06] Speaker 00:
So the fact that there is no expert testimony that is directly on this point I think is determinative here.

[00:10:15] Speaker 02:
I thought that Nike's expert testified that you could not determine on the basis of the specification where to begin the measurement.

[00:10:31] Speaker 00:
from the end point.

[00:10:40] Speaker 00:
Nike submitted three expert declarations that it now cites in this briefing.

[00:10:48] Speaker 00:
All of those were submitted at a time when the dispute was about whether the toe and heel were regions or points.

[00:11:00] Speaker 00:
All of Nike's expert declarations say that a person of skill understands those terms generally and wouldn't understand whether the toe and heel are a region or a point.

[00:11:19] Speaker 00:
But Judge Leinenweber, the first judge to weigh in here, disagreed with those experts and said that a person of skill reading

[00:11:29] Speaker 00:
the claims would understand these to be regions.

[00:11:33] Speaker 00:
There's nothing in any of these expert declarations that talk about the edge or the boundary of the regions and how not knowing that edge would make it impossible or difficult to determine the scope of the claim.

[00:12:00] Speaker 00:
I'd like to circle back to something that Judge Hughes asked me about, which is about how the patent does not provide precise boundaries or teachings about the edge of the heel or the toe.

[00:12:15] Speaker 00:
One of the things that I think is important to keep in mind is that the standard of nautilus is reasonable certainty.

[00:12:24] Speaker 00:
So long as a person of skill is reasonably certain

[00:12:28] Speaker 00:
of where the heel or toe end, the claim is not indefinite.

[00:12:35] Speaker 00:
And any dispute about how to measure the precise radius of curvature on any particular golf club is a question of infringement, not a question of indefiniteness.

[00:12:59] Speaker 01:
explain to us why you didn't, I mean, I understand you didn't want yet another delay before this particular judge, but why didn't you submit a supplemental briefing?

[00:13:12] Speaker 00:
The primary reason that we didn't ask to submit supplemental briefing in September of 2018, excuse me, is the issue of delay.

[00:13:23] Speaker 00:
At the point that the district court

[00:13:26] Speaker 00:
asked whether SASA would be interested in additional briefing.

[00:13:30] Speaker 00:
The issue had been pending before the court for nearly five years and we... Can I ask you, did you ask, did you, I mean, the court acted like, the judge acted like she was surprised that you guys were still around.

[00:13:48] Speaker 01:
You know, putting aside the fact that we've got reports that have to be issued every six months, did you

[00:13:56] Speaker 01:
give her any reason to believe you were still there and waiting?

[00:14:01] Speaker 01:
And did you, did you file requests for, for, for a ruling, anything to prompt the judge?

[00:14:07] Speaker 00:
There was never any filings on the docket, but my understanding is that Council for Sasso occasionally reached out to the court and the by phone.

[00:14:21] Speaker 00:
And you can see in the record that there were a number of

[00:14:26] Speaker 00:
status conferences that were set and subsequently rescheduled.

[00:14:31] Speaker 00:
And so SASO believed that there was always a ruling right around the corner and that no further action or prompting was necessary.

[00:14:41] Speaker 01:
Okay.

[00:14:42] Speaker 01:
Thank you.

[00:14:43] Speaker 01:
We'll save the rest of your time for rebuttal.

[00:14:51] Speaker 01:
Okay.

[00:14:52] Speaker 01:
Mr. Harris?

[00:14:54] Speaker 03:
Good morning, and thank you, your honor.

[00:14:56] Speaker 03:
May it please the court.

[00:14:58] Speaker 03:
I'd like to start with the line of questioning from Judge Hughes and Judge Raina about the evidence or lack thereof.

[00:15:11] Speaker 03:
Because I think what we hear Sasso saying is there's a lack of evidence on Nike's part.

[00:15:18] Speaker 03:
There's no evidence on Nike's part because the three unrebutted

[00:15:23] Speaker 03:
expert testimony or expert declarations that Nike submitted went to a different issue.

[00:15:30] Speaker 03:
And that's simply not the case.

[00:15:34] Speaker 03:
Judge Wood's factual finding that it's unclear where one would take the claimed radius of curvature measurement is fully supported by and it aligns with exactly what Nike's experts were saying from the very beginning.

[00:15:53] Speaker 01:
Uh, Fesla's right, isn't she, that those were submitted in connection with Nike's position that no one would understand what the toe or the heel is, and that those positions were rejected?

[00:16:08] Speaker 03:
Well, not exactly, Your Honor, and let me explain.

[00:16:12] Speaker 03:
And this is where we think it's important that the court reviews not just Judge Wood's opinion,

[00:16:19] Speaker 03:
but all 44 pages of the three opinions from Lyon and Weber, Chang and Wood, from judges Lyon and Weber, Chang and Wood.

[00:16:28] Speaker 03:
So when these issues were, when the claim construction issues were first teed up in 2010 before Judge Lyon and Weber, Nike's experts opined that the terms toe and heel are general terms that are susceptible to many different interpretations and depending on the- Those were rejected.

[00:16:49] Speaker 01:
Right?

[00:16:50] Speaker 01:
Those arguments were counsel.

[00:16:52] Speaker 01:
I read all of those opinions.

[00:16:54] Speaker 01:
So they clearly rejected your concept that one in skill and the art wouldn't know what a toe or a heel was.

[00:17:02] Speaker 03:
Know what Nike's experts were saying was that if you were going to use toe and heel as a measurement, for a basis of measurement, then you would have to know what the point is.

[00:17:13] Speaker 03:
Where on the toe or heel that point is.

[00:17:18] Speaker 03:
And Judge Leinenweber said, okay, I'm going to reject that, but I'm able to reject it because of my construction of radius of curvature.

[00:17:27] Speaker 03:
Remember, Judge Leinenweber said, well, the only way this is going to make sense is if I can screw radius of curvature to mean a single radius of curvature on the toe side.

[00:17:37] Speaker 03:
and a single radius of curvature on the heel side.

[00:17:40] Speaker 03:
And because I'm doing that, I don't need to worry about the pinpoint or exact locations of where the toe and heel start because it doesn't matter.

[00:17:50] Speaker 01:
Again, we're past that.

[00:17:52] Speaker 01:
So Judge Chang said, no, that's not correct.

[00:17:55] Speaker 01:
You can have a radius of curvature on a complex curve.

[00:17:59] Speaker 01:
So I think we are back to where everybody was during the last argument, which is,

[00:18:06] Speaker 01:
the question of the edge.

[00:18:08] Speaker 01:
Now let me ask you, as I see it, we have two lines of cases.

[00:18:13] Speaker 01:
One that says that you can determine indefiniteness as a matter of law and at claim construction where the term is fully subjective or nonsensical.

[00:18:24] Speaker 01:
And then we have another set of cases where we say where the question is that there are multiple methods of possibly determining infringement

[00:18:35] Speaker 01:
that those are questions that have to be decided based on underlying findings of fact.

[00:18:45] Speaker 01:
It would seem like what the judge has done here is essentially enter summary judgment without making any findings of fact and without allowing the jury to make any findings of fact.

[00:18:58] Speaker 01:
I'm not saying that indefiniteness shouldn't still be alive and well for purposes of you to fight, but I just don't know how we say that it can be determined on a one-sentence opinion.

[00:19:12] Speaker 03:
Well, Your Honor, we disagree with you, and here's why.

[00:19:17] Speaker 03:
You're right that Judge Chang disagreed with Judge Lyna Weber's construction of a radius of curvature.

[00:19:25] Speaker 03:
And when he did that, when Judge Chang did that,

[00:19:29] Speaker 03:
He acknowledged that his different construction of radius of curvature created an issue.

[00:19:37] Speaker 03:
And he explained it like this.

[00:19:39] Speaker 03:
He said that the radius of curvature measurements, because of the way that he construed radius of curvature, necessarily depends on identifying the exact locations.

[00:19:49] Speaker 03:
And so in other words, Your Honor, he came full circle back to where Nike and its experts had started in 2009.

[00:19:57] Speaker 03:
That is, if you're going to use the toe or the heel as a basis for measurement, which Judge Lionel Weber said, well, we're not going to do that.

[00:20:06] Speaker 03:
And then Judge Chang said, well, actually, we are going to have to do that now that I've changed the definition or the construction of radius of curvature.

[00:20:13] Speaker 03:
So that took us back exactly to where Nike's experts started, which is, OK, these claims require using toe and heel as a basis or location for measurement.

[00:20:24] Speaker 03:
And if that's the case,

[00:20:25] Speaker 01:
No, but those experts said, and you don't know where in the toe, but if in fact the conclusion is that it's the edge of the toe, do you have any experts say that there's no way to determine where the edge of the toe is?

[00:20:40] Speaker 03:
That's exactly what all three of Nike's experts said, that they wouldn't know where the toe starts or stops or where the heel starts or stops.

[00:20:49] Speaker 01:
No, they said they wouldn't know where to take the measurement from.

[00:20:52] Speaker 01:
But they never said I wouldn't know if I'm told to take it from the edge.

[00:20:57] Speaker 01:
They never said I wouldn't know where they wouldn't be able to find the edge.

[00:21:02] Speaker 03:
Well, the claim language says that, and this is Sasso's argument, the claim language says that it's the measurements between the most rearward point and the toe and on one side and between the most rearward point and the heel on the other side.

[00:21:18] Speaker 03:
It doesn't say, the claim doesn't say anything about edge.

[00:21:21] Speaker 03:
So it's between those two areas, the rearward point and the toe.

[00:21:26] Speaker 01:
Well, if it's between, and you never really addressed the between argument, but if it's between, the assumption is it's from the most rearward point until the toe begins, or the most rearward point until the heel begins.

[00:21:40] Speaker 01:
And you don't ever have anyone say that they wouldn't know what that meant.

[00:21:46] Speaker 03:
Well, we respectfully disagree.

[00:21:48] Speaker 03:
If the assumption, if that's a reasonable assumption that it's the edge, well then that's exactly what Nike's experts were saying, that a skilled artisan would not know where to take this measurement, as recited in claim seven, because there are many different places where that measurement could be taken from.

[00:22:06] Speaker 01:
But again, they didn't, there's nowhere that they say they would not be able to figure out what the edge, or at the beginning point,

[00:22:16] Speaker 01:
of the toe or the heel is, right?

[00:22:19] Speaker 03:
Well, I agree with you, Your Honor, that they don't use the word edge.

[00:22:23] Speaker 03:
But again, the claim doesn't use the word edge either.

[00:22:26] Speaker 01:
Or begin point, end point.

[00:22:29] Speaker 01:
They don't ever say they wouldn't know that.

[00:22:32] Speaker 03:
They say to use the terms toe and heel as a measurement point

[00:22:40] Speaker 03:
they would have to be assigned a specific definition with a specific boundary, which I think can reasonably construe it as an edge, a specific boundary if they were to be used as a measurement point.

[00:22:51] Speaker 03:
That's Maltby's Declaration Appendix 2419 at paragraphs 26 and 27.

[00:22:56] Speaker 03:
Right.

[00:22:57] Speaker 01:
And if they are told that the boundary is where SASO proposes, is there any evidence that they wouldn't be able to find that?

[00:23:08] Speaker 03:
Well, SESO hasn't proposed a boundary.

[00:23:11] Speaker 03:
SESO's approach is let the jury figure it out.

[00:23:15] Speaker 03:
The jury can figure out where the boundary is, but that doesn't answer the question and that shifts and we think improperly shifts the claim construction analysis and the legal analysis of determining the scope of a claim to the jury and

[00:23:33] Speaker 03:
It also runs afoul of the Supreme Court's warnings and nautilus of the zone of uncertainty.

[00:23:41] Speaker 03:
You know, under SASO's approach, whether a club infringes or a prior art club invalidates could change day to day, person to person.

[00:23:54] Speaker 03:
It could be a moving target.

[00:23:56] Speaker 03:
And we've already seen that in SASO's attempted enforcement of its patent.

[00:24:02] Speaker 01:
Before the lawsuit, before they filed their lawsuit against Nike, they had one interpretation of how to determine whether... But the question is, is this something that's decided at claim construction or something that needs to have underlying facts resolved?

[00:24:19] Speaker 01:
Because it has to be by clear and convincing evidence.

[00:24:22] Speaker 01:
And we've said where it's so obvious on the face that the word is frivolous or nonsensical, that we can say,

[00:24:30] Speaker 01:
that by clear and convincing evidence, it's indefinite as a matter of law.

[00:24:34] Speaker 01:
But we've also said where there are other underlying considerations, you have to have someone who's a trier of fact make a determination about what one of reasonable skill in the art would know or understand.

[00:24:49] Speaker 03:
Well, in this case, Your Honor, you get to the same result.

[00:24:57] Speaker 03:
If this court finds that Judge Wood's finding was not a factual finding entitled to the clear error standard review and instead does a de novo review, well, you get to the same result.

[00:25:12] Speaker 03:
There's absolutely nothing in the intrinsic record that would allow or inform a skilled artisan on

[00:25:23] Speaker 03:
where an edge of a toe starts or stops, or where a heel starts or stops.

[00:25:28] Speaker 03:
And I think SAS has admitted it as much.

[00:25:32] Speaker 03:
So either way, we think, Your Honor, you get to the same result.

[00:25:42] Speaker 03:
So I think that unless you have any other questions, Your Honor, I think we've covered all the points that we wanted to make today.

[00:25:50] Speaker 03:
for all of those reasons and all the reasons in our briefing, we think that Claim 7 fails to inform a skilled artisan with reasonable certainty as to the scope of the claim, and therefore, Nike requests that this court affirm.

[00:26:05] Speaker 03:
Thank you.

[00:26:07] Speaker 01:
Thank you, counsel.

[00:26:10] Speaker 01:
Ms.

[00:26:10] Speaker 01:
Cicillo?

[00:26:12] Speaker 00:
Thank you.

[00:26:13] Speaker 00:
This case is much more like the ultimate

[00:26:18] Speaker 00:
multiple measurement cases like Dow and Teva.

[00:26:22] Speaker 00:
But the critical difference between this case and those is the state of the record.

[00:26:28] Speaker 00:
In those cases, there was evidence in record that whether the accused product would infringe depended on the methodology employed.

[00:26:37] Speaker 00:
There's no evidence of that here.

[00:26:39] Speaker 00:
And there's no evidence that a person of skill could not locate the boundary or edge of the toe and heel

[00:26:47] Speaker 00:
with reasonable certainty.

[00:26:49] Speaker 00:
Nike has provided none of that evidence.

[00:26:52] Speaker 00:
And without it, Nike cannot carry a burden that Nautilus puts on Nike and Nike alone.

[00:26:59] Speaker 00:
That means that the district court should be reversed and remanded for further proceedings.

[00:27:11] Speaker 01:
Thank you.

[00:27:11] Speaker 01:
Good timing.

[00:27:12] Speaker 01:
The case will be submitted.

[00:27:17] Speaker 01:
And the court is adjourned.

[00:27:19] Speaker 03:
The honorable court is adjourned until tomorrow morning at 10 a.m.