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case number 192411, CMO Holdings Inc.

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versus Hong Kong U-Link Network.

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It is an appeal from a judgment after trial in the Southern District of New York.

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Mr. Dragseth, are you prepared to begin?

[00:00:15] Speaker 02:
I am.

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Thank you.

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OK.

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You may go ahead.

[00:00:19] Speaker 02:
Thank you.

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May it please the court, late in the week, and I think this case has been fully briefed, so I want to focus on points that I think can get the court to resolution of the case

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quickest and answer any questions.

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So with that, I would plan to start with the claim construction issue, because I think it's the fastest way and easiest way to resolve the issues in this case.

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Mr. Drax, this is Judge Tarantos.

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Continuing with your interest in getting to at least what is currently on my mind, assume for purposes of this question that we agree with your claim construction point.

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Remand, reversal, why reversal if reversal?

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Reversal because the issue of infringement was fully briefed.

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Simon has showed you a site in the record that they think they have.

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We have pointed out that the expert on that point

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merely was talking that generally and then when it was pointed out to him that a hotspot doesn't have a phone in it, he agreed with that.

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And so we don't think that's the one point that they pointed to for remand.

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Well, let me, yeah, so I think I understand that.

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There's this one question and answer in which Dr. Clark isn't even definitive in saying no he, or yes he thinks there is

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a non-local calls database and maybe the absence of such a affirmative declarative assertion is enough.

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I frankly don't understand your point about how at least three of the four devices do not have phone call capabilities fits into this reversal versus remand.

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I'm not even sure I know what a phone call is.

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Well, that's a good question, Your Honor.

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The point there that we're trying to make, and I don't want to push too hard on this point about reverse versus remand, but the point, to answer your question, these are hot spots.

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I have one from Verizon.

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I call it hot spots.

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I'm sorry.

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I thought G2, G3, U2, or U something were hot spots, but S1 was not.

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Right, and so our point isn't that S1 isn't a phone, it's just that they in their brief didn't point out, they didn't make any points about S1.

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And what's the relevance under the claim of whether a device can, as you say, make a phone call?

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If you agree with our claim construction, you need to have a non-local call database.

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And that is something that you would use for a phone call.

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There would be no reason to have that on a hotspot.

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Go ahead.

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Sorry.

[00:03:07] Speaker 04:
No, I didn't say anything.

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OK, more generally, there may be something more that's in their brief.

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I am not trying to say that you must reverse in this situation.

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I don't think that there is anything more in their brief.

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But there's like a paragraph on each side about this, which left me pretty uncertain.

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When I looked at the summary judgment,

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papers, they made a motion for summary judgment, which Judge Rakoff granted.

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You made a motion for summary judgment, which Judge Rakoff denied.

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You said in your motion for summary judgment, this preamble is limiting, and what's more, it actually requires a non-local calls database.

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And if you, the judge, agree with that, then there are no non-local call databases in the accused product.

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They came back with only this little

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passage from Dr. Clark.

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And I'm trying to understand, and they didn't say we need more discovery.

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They didn't say we need claim construction on non-local calls database.

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And I'm trying to understand if on this assumption of the claim, you're being right on the claim construction, that properly ends the case or not.

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It makes a big difference according to, because it changes whether we need to address the other issues.

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Right, and I think you've laid it out very well why the court can't just reverse because it was fully briefed, it was on summary judgment.

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If they had a factual dispute at the time, of course, the summary judgment procedure compels them to put that factual dispute in place.

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But I would think that at a minimum there needs to be some explanation beyond what's in the brief to explain why we would, even apart from procedure and the summary judgment rules, why we would want to or need to go down and spend more resources, both the parties,

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and the district court's resources.

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Well, they quote, counsel, they quote Dr. Clark as saying it depends on how you construe the non-local cause database as to whether I would believe or whether I would opine that the allegedly infringing devices do or do not have one.

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And so does that mean that there needs to be a claim construction that we shouldn't be doing

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in the first instance?

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If you read through that, he's getting pretty broad with his implied construction there, I think, because I think he refers to data calls.

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In other words, if it doesn't have anything to do with a telephone, a voice, I think what he's saying there, if you read it, he's saying, well, if non-local calls database doesn't have anything to do with voice, or it doesn't have to deal with voice calls, it can deal with data calls, which is completely different.

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than what the patent is talking about.

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I think that's what's going on there with that testimony, but I don't think that's even a tenable construction.

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If you look at the bottom of column 15 of the patent, they talk about the non-local call database.

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It's all only and exclusively about telephone calls.

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That's what call means.

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Certainly, if you're talking about, you've probably had other cases, if you were talking about memory, right, and the CPU can make a call to memory,

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and get some data back but that's not what this Pat is talking about so he can't get there's no support to go that broad.

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This is Judge Wall.

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Let me take you somewhere else for a moment.

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On page one of the Graybrace, you assert that, I'm quoting, Seymour's trial theory on a series of non-responses, Fifth Amendment by the way, by an individual, Wong Bin, who chose to

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invoke the Fifth Amendment.

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While a jury was entitled to draw reasonable inferences, there is nothing linking Mr. Bin's non-responses to the 689 patent.

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My understanding is that Mr. Bin was a cloud link subsidiary employee.

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I think that's right.

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OK.

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Isn't there a legitimate adverse inference

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when an employee declines to answer a specific question, whether or not they assert the fifth.

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Okay, so yes, there is, but we have to say, well, what is the adverse inference?

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And the adverse inference has to be that the response to that particular question.

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You can't just say, well, he took the fifth, so we can have an adverse inference against him as a bad person.

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It has to be that his answer to that question would have been bad.

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And the questions he got were questions of the form

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Is this file, they had 14 files on his laptop.

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Did you put this file on your laptop?

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He took the fifth.

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The adverse inference you get from that is, sure, he put the file on his laptop, but that doesn't have anything to do with the patent in this case.

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They asked him, did you use these files to prepare your patents?

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And he took the fifth.

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So an adverse inference you might be able to get from that question is, okay, he used those files to prepare his own patents.

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Nothing in there jumps the gap over to the 689 patent or even the 735 patent.

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But didn't the court say it's relevant as it relates to whether or not it constitutes circumstantial evidence of a pattern of copying?

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Well, in other words, you don't have to necessarily type that particular

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piece of evidence to the particular patent if it establishes a pattern or helps to establish a pattern?

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First, it's not a pattern of copying patents and I don't want to go too deep into that because that's not the ultimate point.

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The ultimate point is that yes, it could be to show that, you know, bad faith, let's say, just general bad faith, but if there's no evidence that we knew about this patent,

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or no reasonable inference that anybody knew.

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And nothing about Mr. Bin has anything to do with either the 735 or the 689 patent.

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And there's nothing about him searching or doing anything with third party patents.

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So yes, you could use, if you had evidence that we knew about the 689 patent, maybe you could use Mr. Bin to say, well, we're bad guys.

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something like that, right, to get the intent element.

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But you have to separately hook that up and say, well, OK, there was bad intent.

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But even with the bad intent, there's no evidence of knowledge of the patent.

[00:10:04] Speaker 00:
OK, can we go back to the primary question, which is the claim construction issue?

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Sure.

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Do you believe that requiring a plurality of each of the elements requires more than one of each element in the claim devices?

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As in two or more non-local call databases?

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I think so.

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I think that's the natural reading.

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We rely on superguide.

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Superguide was one or more.

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Plurality means two or more.

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If you apply superguide with the slight adjustment changing one or more to two or more, I think that's the ordinary meaning of the claim.

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Well, I mean, is there anything in the specification that would support the proposition that you need multiples?

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So two points on that.

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Yes, and I'll tell you in a minute.

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And there is more than what supports our opponent's claim construction.

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So two points, two places in the spec you can look for that.

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First off,

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When in columns 14 and 15, our opponent has cited those passages quite a bit, and it's where they lay out all of these kind of generic computer components.

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They do talk about one or more.

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What does one or more mean?

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Well, the more part of one or more is two or more.

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Right, but it also allows for one, right?

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It does allow for one, but you don't have to hit everything.

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You don't have to claim

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all possibilities.

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This is not a situation where you have, you know, a preferred embodiment, a separate invention in the specification.

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What you're saying is there's an optional thing here.

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You could have one, you could have two, you could have three, and then if you want to take that option in a claim, you can't claim an option, right?

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You can't claim all of that.

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You can't, because if you do that, then it's just open-ended to all of that.

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So if you are allowed, though, to carve off part of an option in your claim, and the briefing has plenty of discussion about how this is a con from a previous patent and other claims in this patent and in the parent patent deal with that.

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I will say, though, that this, we have the only ordinary meaning

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claim construction in this case.

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So if you want in hoc verba match to that ordinary meaning, you can go to the summary of this patent and there's an in hoc verba match

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between claimate and it's about halfway down the summary column where they do the practice of copying the claim.

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And so if you believe that this is the ordinary meaning of this language, then there is disclosure in the specification, not in the classical way that people do it, but there is disclosure in the specification that matches that.

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So we don't have a situation where there's some sort of impossible conflict between the specification and the claim.

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Can I just ask you, the summary paragraph is a little bit long.

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Is that as, is that written in such bad English as the claim?

[00:13:10] Speaker 02:
Yes.

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Okay.

[00:13:12] Speaker 02:
So it's, now that I've had a chance to open it while you said that, it's starting at line 25 of column three.

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Right, it's a long paragraph.

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Yep.

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And I heard a beep and so I will reserve, if there aren't any other questions, of course.

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We'll give you the full three minutes for rebuttal.

[00:13:30] Speaker 02:
Thank you, Chief Judge.

[00:13:33] Speaker 00:
Oh, that's a nice promotion.

[00:13:37] Speaker 02:
Oh, sorry.

[00:13:37] Speaker 00:
That's OK.

[00:13:38] Speaker 00:
I'll take it.

[00:13:42] Speaker 00:
All right.

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Let's hear from the other side.

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May I please the court?

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This is Ben Weijer from KNO Gates on behalf of SEMA Holding Bank.

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We submit that the trial court would correct on all issues now on appeal, claim construction and otherwise, under all the pertinent standards of review.

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To turn first to the claim construction issue, the trial court was correct when it determined that the claims do not require a non-local cause database to be satisfied.

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That feature is not necessary under a plain English interpretation of the claims, and as an optional feature, it is not, quote, essential structure.

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So the claims are, quote, structurally complete under this court's precedent, even without that element as part of the claims.

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Is the claim construction, I mean, is the claim language ambiguous in your mind?

[00:14:33] Speaker 03:
It is not, Your Honor.

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In our view, the plain language of the claim is clear in the sense that the preamble list is a list of six items separated by the word and, and preceded by the phrase plurality of.

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So in our view, the plain language of that is, if two or more of the six elements are present, the preamble list would be met to the extent that it's a limitation.

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In our view... This is Judge Taranto.

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Where I get hung up on that is in the language that immediately follows, at least one of the plurality of programs, blah, blah, blah, the plurality of processors.

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It seems to me that with the garbled language that comes before at least, the language after leaves it unambiguous that at least two of those items in the previous list have to have themselves, there have to at least be a plurality of those

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which then tells me, okay, this is the word plurality in the first part, is in fact distributed over and therefore applies to each of the items in the list.

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Your Honor, I agree the claim is not all that clearly written, but in our interpretation of the last phrase of the claim, the part that comes after the preamble list from the briefs, what it's saying there is that at least one of the plurality of programs, so there must be at least two programs, which the list element makes clear because it says programs.

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at least one of those programs has instructions that can be executed to do certain things in the claims.

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So it's not inconsistent.

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It may be a little bit wordy, but it is not inconsistent with the way the preamble list is written as to the way the rest of the claim element is written in the preamble.

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And I think Judge O'Malley made the point with my counterpart that the interpretation that the plaintiff or that the defendant here, that Euclid Link advocates,

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where a plurality of precedes each of the elements of the preamble list is wrong for a number of reasons.

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The first of which, again, Judge O'Malley highlighted, which is there is no disclosure in the specification of a plurality of non-local cause databases.

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Figure 5B shows what the non-local cause database looks like.

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That is an optional feature.

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There's no dispute between the parties about that fact.

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But there's no disclosure about how one might use multiple non-local cause databases in the invention claimed in claim A.

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This court's precedent, for example, in Ruckus Wireless versus Innovative Wireless, which is 824, Fed 3rd, 999, counsels against construing claims in a way to violate the written description requirement.

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And that's exactly what UCloudLinks construction would do.

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There would be no written description for a plurality of non-local calls databases.

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And so, therefore, this court's precedent counsels against that.

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The other problem with UCloudLinks proposed construction is that it requires even one non-local calls database.

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As we made clear in our briefing, that would exclude embodiments of the 689 patent where the non-local cause database is explicitly described as an optional component of the device.

[00:17:35] Speaker 00:
But don't you have the, what's your response though to the fact that claim 19, the method claim is a completely different system that's discussed and so there,

[00:17:54] Speaker 00:
you don't have to worry about whether it's optional or not, because it's not there.

[00:18:00] Speaker 03:
Your Honor, I think this might lead a little bit into the issues of damages, but Claim 19 is a method claim, and so it's different in scope in a number of respects, but it's different in scope at least in as much as the kind of infringer is different.

[00:18:12] Speaker 00:
For a method claim, we might not have the same claim for infringement against... But are you saying that to the extent the specification says that non-local

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calls database is optional, that it's only optional for systems claims?

[00:18:30] Speaker 00:
And wouldn't that optionality cover whether you're claiming systems versus methods?

[00:18:37] Speaker 03:
No, not at all.

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I think our position is that the device described in the specification may or may not include in its memory a non-local calls database.

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A method claiming the use of a device as described may be a method for using a device that has the database,

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may be a method for using the device that doesn't have the database.

[00:18:55] Speaker 03:
So the method claim versus apparatus claim is not the thing that drives the optionality.

[00:19:00] Speaker 03:
The optionality comes from the explicit disclosure in the specification, which says, in some embodiments, there is no non-local cause database.

[00:19:11] Speaker 03:
As I was mentioning before, the other side of the coin with you cloud links proposal is that by requiring a non-local cause database, it is contrary to this court's precedent in, for example, OD versus IPS,

[00:19:22] Speaker 03:
which is in our brief at page 30, that it is improper in general as possible to construe claims in a way to exclude embodiments of the patent.

[00:19:29] Speaker 03:
And this one's a little bit confusing because you're excluding an embodiment that lacks the non-local cause database, but it is contrary to this court's precedent on that as well.

[00:19:38] Speaker 03:
I also think it's important to note that our proposed construction where a non-local cause database is not required is consistent with the way the rest of the claim is written.

[00:19:48] Speaker 03:
The questions on remand touched on this a little bit, but we don't know what a non-local calls database is or does in the context of the claim.

[00:19:55] Speaker 03:
And the reason for that is because it's never mentioned again in claim eight or any of the dependent claims from claim eight.

[00:20:01] Speaker 01:
So we don't... Council, this is symbolic.

[00:20:05] Speaker 01:
I have a little damages question for you.

[00:20:08] Speaker 01:
Okay.

[00:20:10] Speaker 01:
In the blue brief in footnote five, five link quotings.

[00:20:17] Speaker 01:
ignored the fact that Bob Link only makes approximately $3.50 in revenue for selling data to customers, which means CMO's $3.00 royalty rate is effectively an 86% royalty.

[00:20:31] Speaker 01:
Is that true?

[00:20:35] Speaker 03:
Are the facts underlying that statement true, or is it true that we're asking for an 86% royalty?

[00:20:40] Speaker 01:
Both.

[00:20:42] Speaker 03:
I believe the testimony that is cited there, that is a trial transcript citation.

[00:20:45] Speaker 03:
So that's a citation that was made

[00:20:47] Speaker 03:
to evidence the jury heard.

[00:20:49] Speaker 03:
And we have no reason to doubt that that's true.

[00:20:52] Speaker 03:
And the math I think is correct that 86%, three is 86% of 350.

[00:20:57] Speaker 03:
But still in all, that's part of the overall evidentiary package the jury heard when deciding whether or not Mr. Martinez's royalty presentation was correct.

[00:21:05] Speaker 03:
And I'd refer the court back to the Asetek case, which is cited in the sentence right after footnote five.

[00:21:10] Speaker 03:
That's a case cited by you Cloudlink in support of this argument.

[00:21:13] Speaker 03:
But Asetek essentially stands for the proposition

[00:21:16] Speaker 03:
that even if a royalty rate approximates a plaintiff's profits, that's not per se impermissible.

[00:21:23] Speaker 03:
And indeed, in some instances, HSI tells us that's exactly what a hypothetical negotiation would lead to.

[00:21:29] Speaker 03:
That case says at 852, 733, 1363, I'm sorry, it says, quote, negotiating for a per unit payment equal to its per unit profit can be a logical approach for a patent owner

[00:21:45] Speaker 03:
that it's uncertain of how many sales might be lost.

[00:21:49] Speaker 03:
So that case cited by UCLoudling stands for exactly the proposition that Mr. Martinez advocated, which is the profit margin is a useful tool in determining what the reasonable loyalty is.

[00:21:59] Speaker 00:
Another important... Did you ever make an argument that SEMA was entitled to convoyed sales of day passes?

[00:22:07] Speaker 03:
We did not, Your Honor.

[00:22:08] Speaker 03:
In our view, this issue is a little bit murky in the UCLoudling briefs because data services are not a convoyed sale.

[00:22:14] Speaker 03:
This comes back a little bit to the question of the apparatus versus method claim.

[00:22:18] Speaker 03:
And if you think about the claim as an apparatus claim, the sale of the device is an infringing sale or stipulation to that effect.

[00:22:25] Speaker 03:
The use of a device by a customer of uCloudLink would also be an act of infringement because they are using a device which is an infringing device.

[00:22:34] Speaker 03:
So we're not talking about a convoy sale where, for example, we have the load straps and the dock leveler from some of the seminal case law on this convoy sales point.

[00:22:42] Speaker 03:
We're talking about two acts of infringement occurring because of one, the sale of the device, and two, the use of the device.

[00:22:50] Speaker 03:
But even more importantly than that, the question under 284 from the Western GECO case and other cases of its progeny is what is the economic impact of the act of infringement?

[00:23:00] Speaker 03:
And here we have admissions stipulations as to the underlying act of infringement by uCloud Link, both in the form of direct infringement through sales and induced infringement through sales abroad

[00:23:12] Speaker 03:
and usage in the United States.

[00:23:15] Speaker 03:
The question is, what is the economic impact of that sale?

[00:23:18] Speaker 03:
The answer can't be anything other than the users of the device consume data.

[00:23:23] Speaker 03:
If they don't do that, devices are paper waste.

[00:23:27] Speaker 00:
Council, can we go back to where Judge Toronto started the argument with your friend on the other side, and that is assuming that we would believe that the claim construction is wrong.

[00:23:41] Speaker 00:
What is your position on remand versus reversal?

[00:23:46] Speaker 00:
I mean, these were cross motions for summary judgment.

[00:23:49] Speaker 00:
Discovery was closed.

[00:23:51] Speaker 00:
I mean, if there was an argument to be made that, and you didn't know at the time what the court's construction was going to be, if there was an argument to be made under an alternative construction, shouldn't you have had to make it then?

[00:24:02] Speaker 03:
Your Honor, I think this is a bit of an abnormal situation, and I haven't studied Judge Rakoff's order on this exact point today or yesterday.

[00:24:11] Speaker 03:
I believe what Judge Rakoff said is he sort of indicated the delay on Euclid Link's side in bringing this issue to the forefront.

[00:24:19] Speaker 03:
So it's true that that issue of whether the non-local cause database is a limitation was briefed in summary judgment, but that was after fact discovery was done.

[00:24:27] Speaker 03:
That was after expert discovery was done.

[00:24:29] Speaker 03:
And even in coming to that claim construction, Judge Rakoff expressed some dismay about how late in the process that was.

[00:24:36] Speaker 04:
But this is Judge Toronto, but unless I missed something,

[00:24:40] Speaker 04:
When I read your opposition to the other side summary judgment motion on this point, I do not remember seeing you making an argument that because of the late arising nature of this issue or for any other reason that you would need more discovery or

[00:25:05] Speaker 04:
would need a claim construction on non-local calls database in order to answer the question whether if such a database is required, you can find them in the accused products.

[00:25:18] Speaker 03:
That's correct, Your Honor.

[00:25:19] Speaker 03:
I think at that point, Dr. Clark's testimony about the confusion that was addressed with Mr. Dragstaff around what does it mean to be a call, what does it mean to be a non-local call database, that was what

[00:25:30] Speaker 03:
we had relied on at that point in supporting them.

[00:25:32] Speaker 04:
The problem I have with that is, as far as I understand, that's the only thing you relied on.

[00:25:37] Speaker 04:
And what you can't find in that single question and answer is a direct declarative statement that, yes, there is a non-local calls database in at least one or more of the accused products.

[00:25:52] Speaker 03:
Yeah, I think I agree with you.

[00:25:53] Speaker 03:
I think what Dr. Clark says there is I don't know what non-local calls database is, so there might be.

[00:25:59] Speaker 03:
And that's the fundamental problem we have here.

[00:26:01] Speaker 03:
And it gets back to my point about non-local calls database not being mentioned anywhere else in the claim.

[00:26:06] Speaker 03:
Even if it is a limitation to the claim, we don't know what it means.

[00:26:09] Speaker 03:
There hasn't been a fact finding because nobody knows what it means at this point.

[00:26:12] Speaker 03:
We know what the specification says about it, but nowhere else in the claims that were asserted and stipulated to infringement was there a discussion of what the non-local calls database does, is, looks like.

[00:26:23] Speaker 03:
There was some commentary about, you know, phone calls and what is a call.

[00:26:27] Speaker 03:
I think that Mr. Dragstaff's example is not really the pertinent example of another possible alternative for a call.

[00:26:33] Speaker 03:
In the world we're in, Skype is a thing.

[00:26:36] Speaker 03:
Zoom is a thing.

[00:26:38] Speaker 03:
People have Skype phone numbers.

[00:26:39] Speaker 03:
But those are all voice over IP calls.

[00:26:42] Speaker 03:
Those are all data packets transferred over the internet, converted from voice to data and data back to voice.

[00:26:47] Speaker 03:
Those are calls.

[00:26:48] Speaker 03:
And that's an example of the kind of issues that need to be resolved on this field.

[00:26:52] Speaker 04:
Can I just say, one question about the foreign damages.

[00:26:57] Speaker 04:
Why am I wrong, would I be wrong in thinking that even if the foreign data use could properly under Western GECO, Supreme Court Western GECO and so on, be a legitimate part of the assessment of the royalty for the domestic sales

[00:27:23] Speaker 04:
Why isn't there a jury trial right to the resolution of the issue?

[00:27:29] Speaker 04:
Because it seems like there are fact questions.

[00:27:33] Speaker 03:
Your honor, in our view, and I think that our brief made this fairly clear, the issue of the royalty rate to be applied to both domestic and foreign damages, if you will, was an issue tried to the jury.

[00:27:44] Speaker 03:
Mr. Martinez gave testimony about what the royalty rate would be for domestic only determinations and said it would be lower

[00:27:52] Speaker 03:
if a full kind of global determination were made.

[00:27:55] Speaker 03:
And the number that the jury adopted was his lower number for a negotiation that took into account domestic and foreign application.

[00:28:04] Speaker 03:
So I don't think there's been any problem with it.

[00:28:06] Speaker 00:
Mr. Weed, you didn't reserve any time for Ms.

[00:28:09] Speaker 00:
Johnson, but there was a specific request that she be given two minutes.

[00:28:12] Speaker 00:
Why don't we give her two minutes, and I'll give Mr. Dragseth an extra two minutes on what's left of his rebuttal.

[00:28:19] Speaker 03:
That sounds good.

[00:28:19] Speaker 03:
Thank you, Your Honor.

[00:28:20] Speaker 03:
Would you like me to finish answering that question?

[00:28:22] Speaker 00:
No, I think we're going to have to move on.

[00:28:27] Speaker 05:
Okay.

[00:28:27] Speaker 05:
Your Honors, may it please the court, Gina Gennaro-Johnson of KNL Gates on behalf of SEMO Holdings, Inc.

[00:28:34] Speaker 05:
I wanted to start with whether the jury heard substantial direct evidence that SEMO notified Utah Link of its charges of infringement of the 689 patent prior to asserting the 689 patent.

[00:28:49] Speaker 05:
We contend that there was substantial direct evidence to this point.

[00:28:52] Speaker 05:
In fact, Mr. Martinez testified to this point, and the jury instructions noted that the damages period began prior to the filing of the 689 complaint because of it.

[00:29:03] Speaker 04:
This is the one week prior?

[00:29:05] Speaker 05:
That's correct, Your Honor.

[00:29:08] Speaker 05:
And Mr. Martinez's testimony was unrebutted and not cross-examined.

[00:29:13] Speaker 04:
Do you think that pre-complaint willfulness is necessary under

[00:29:22] Speaker 04:
HALO and the law of willfulness?

[00:29:25] Speaker 05:
And I'm not sure why it would be, but... Your Honor, I do not believe that that's necessary.

[00:29:32] Speaker 05:
If we look at the HALO case, what is at the core of the inquiry is culpability, and culpability can arise pre or post-suit, because the science requirement is the same in either instance here.

[00:29:44] Speaker 05:
We do need to look at the totality of the circumstances in either case pursuant to the WCM case.

[00:29:49] Speaker 05:
And I would contend, Your Honor, that our case is not different from the WCM case.

[00:29:54] Speaker 05:
In the WCM case, the patents were initially asserted in a different district.

[00:29:59] Speaker 05:
That case was dropped, and then the patents were asserted in another district just one month later.

[00:30:04] Speaker 05:
And so CMOS filing of the 689 complaint subsequent to its cease and desist letter is a very similar issue, albeit a shorter period of time in between.

[00:30:14] Speaker 05:
Is knowledge of a parent patent enough?

[00:30:18] Speaker 05:
I would contend, Your Honor, that knowledge of a parent patent is enough, especially under the circumstance when the patent application had been made public for four years at the time at which Zhang Rongrong, UCLAAD Link 36 witness, testified Dr. Gong became aware of the parent patent.

[00:30:41] Speaker 05:
And I think this issue is touched on

[00:30:43] Speaker 05:
precisely in footnote four of the WCM case, and that is why UCLINQ's discussion of the state industries case does not apply here.

[00:30:53] Speaker 00:
Okay, one last question.

[00:30:54] Speaker 00:
The parties seem to argue or seem to believe in their arguments that knowledge is enough for willfulness, but is it more needed

[00:31:08] Speaker 05:
Knowledge of the patent is the baseline that's required and we believe that's satisfied by the cease and desist letter that was sent on August 13th.

[00:31:19] Speaker 05:
In addition, I would agree that a totality of the circumstances approach requires more than just knowledge.

[00:31:26] Speaker 05:
And that's precisely why we take the totality of the circumstances approach.

[00:31:31] Speaker 05:
An infringer who first learns of the patent in the context of litigation and has no prior history with the plaintiff is much different than you, CloudLink.

[00:31:39] Speaker 05:
An infringer who admittedly knew of SEMO's patents, monitored its products, and whose technical documents share exact figures with SEMO's internal documents.

[00:31:49] Speaker 05:
So we do not have the case here, Your Honor, where the jury heard nothing but Yu Kao Ling's knowledge of the patents.

[00:31:55] Speaker 05:
In fact, that's why the testimony surrounding Rong Rong Zhang's admission of knowledge of the 735 patents and Wang Bin's testimony regarding transferring documents embodying CMOS technology over to Yu Kao Ling's computer are relevant to the overall inquiry and not substantially more prejudicial than probative.

[00:32:17] Speaker 00:
Okay, Ms.

[00:32:18] Speaker 00:
Johnson, thank you very much.

[00:32:19] Speaker 00:
As Mr. Dragg says, it's getting to be a long morning, so we need to move on.

[00:32:26] Speaker 00:
I gave you two extra minutes, but you don't have to use it.

[00:32:29] Speaker 02:
I have some quick bullet points.

[00:32:31] Speaker 02:
I think the ordinary meaning is our meaning.

[00:32:33] Speaker 02:
That's the only one that's been discussed.

[00:32:35] Speaker 02:
It's provided by SuperGuide, and we didn't hear anything more on that.

[00:32:42] Speaker 04:
The antecedent... Mr. Dragg says... I'm sorry to drag this out.

[00:32:47] Speaker 04:
Isn't the other side's view of this, of the claim construction, doesn't it amount to putting the single letter word A in front of memory and in front of non-local calls database, and then you have a list of things, some of which are singular, some of which are plural, and at that point, what comes after the at least one makes perfect sense, a plurality of the two things that are listed as plural,

[00:33:16] Speaker 04:
And so with a pretty small bit of surgery, we would have a claim that is actually in standard English.

[00:33:29] Speaker 04:
And then that would be support their view and not your view.

[00:33:32] Speaker 02:
So I have a response to that on the superguide point and then another on the, what's called the antecedent basis point that you had brought up and had some discussion with our opposing council with.

[00:33:44] Speaker 02:
On the superguide point, no, I don't think that's a small change.

[00:33:47] Speaker 02:
The term memory, as they've said multiple times, is a group noun, same with communication circuitry, okay?

[00:33:55] Speaker 02:
So there's no need.

[00:33:57] Speaker 02:
If you want to put A in there, you are rewriting the claim.

[00:34:00] Speaker 02:
That's a given.

[00:34:01] Speaker 02:
And that is verboten, except in the most extreme circumstances.

[00:34:06] Speaker 02:
Memory is not singular.

[00:34:08] Speaker 02:
The word is single, but it's a group noun, and so within it, it can have plural, especially in claim drafting.

[00:34:16] Speaker 02:
You say first memory storing commands to do X, second memory storing commands to do Y, and then you can have plurality of memory.

[00:34:24] Speaker 02:
To say a plurality of memories,

[00:34:26] Speaker 02:
is not something you see often in claims.

[00:34:28] Speaker 00:
So I don't think that that's... How do we deal with the fact that, as your friend on the other side contends, we're reading the claim to exclude one of the described embodiments?

[00:34:43] Speaker 02:
All right, a few points.

[00:34:45] Speaker 02:
Number one, there is no exclusion of a preferred embodiment.

[00:34:49] Speaker 02:
This is an optional situation.

[00:34:51] Speaker 02:
Nothing was listed here as preferred.

[00:34:55] Speaker 02:
There is actually, I would say, not even an exclusion of an embodiment as that term is used in the prior case.

[00:35:01] Speaker 00:
Well, isn't that exactly what happened in OD?

[00:35:04] Speaker 02:
No, OD didn't have one of these optional terms where it said, well, you can have A or not have A. I don't think that was the fact in OD.

[00:35:12] Speaker 02:
And there's other distinction over OD and we make it in the brief, is that in OD there weren't other claims.

[00:35:19] Speaker 02:
So really you said, well, it looks to us like he's trying to get everything with claim one.

[00:35:26] Speaker 02:
I forget what number it was in OD, but let's just say claim one.

[00:35:29] Speaker 02:
So we need to construe that claim so that he gets everything.

[00:35:35] Speaker 02:
But as the court has said subsequently, well, if there's a reason to think that the inventor wasn't trying to get everything with claim eight,

[00:35:43] Speaker 02:
like they're reciting that feature missing from other claims.

[00:35:47] Speaker 02:
And it doesn't have to be only that feature that comes out of the claim.

[00:35:51] Speaker 02:
But if there isn't a reason to necessarily conclude he's trying to get everything in his disclosure, then we don't do it.

[00:35:58] Speaker 02:
And that's why we have doctrines of

[00:36:00] Speaker 02:
disclosed but not claimed.

[00:36:02] Speaker 02:
In RE service, there was an aluminum, I forget what the two embodiments were, aluminum and something else.

[00:36:08] Speaker 02:
You had an alternative.

[00:36:09] Speaker 02:
You could use aluminum or steel.

[00:36:10] Speaker 02:
Well, they claimed one of them.

[00:36:11] Speaker 02:
There wasn't a holding there that that was verboten and we're going to have it cover both.

[00:36:16] Speaker 02:
They said, you know what, you claimed aluminum.

[00:36:19] Speaker 02:
That's what you get under the plain language of the claim.

[00:36:21] Speaker 02:
And in fact, even worse for them, you have disclaimed the other material, the steel.

[00:36:26] Speaker 02:
So there's nothing in the law that prevents a construction like ours.

[00:36:32] Speaker 02:
Further on your question, they cited ruckus, which I don't see in the briefs, so I'll throw out another case in the briefs.

[00:36:37] Speaker 02:
Ruckus for the idea that, well, you can't have an enable, you know, you have to construe so that you don't have a 112 problem.

[00:36:43] Speaker 02:
The court has held other

[00:36:44] Speaker 02:
Other ways where the claim language is clear, where there is an ordinary meaning for the claims, and I'll just throw out lizard tech as one example, where the court said, listen, if you got a 112 problem, litigate it further somewhere else.

[00:36:56] Speaker 02:
And then just really quickly on remedy.

[00:36:59] Speaker 02:
You should look at A76, where the court talked about how much blame each party had for when the issues came up.

[00:37:07] Speaker 02:
And I think Judge Toronto has his finger on whether there was a request for extra discovery, whether there was a request for extra experts, or so on.

[00:37:15] Speaker 02:
There wasn't.

[00:37:17] Speaker 02:
And that is all I have, unless the court has questions.

[00:37:21] Speaker 00:
No, I don't think so.

[00:37:22] Speaker 00:
I don't hear anything.

[00:37:24] Speaker 00:
The case will be submitted.

[00:37:26] Speaker 00:
Thank you.