[00:00:00] Speaker 04:
is 191773 WCM versus IPS Corporation.

[00:01:22] Speaker 04:
Can I just clarify, you've got two people listed.

[00:01:25] Speaker 04:
Is that because your colleague is going to do rebuttal?

[00:01:29] Speaker 04:
Correct, Your Honor.

[00:01:30] Speaker 04:
Thank you.

[00:01:31] Speaker 03:
Good morning.

[00:01:32] Speaker 03:
May I please the court?

[00:01:34] Speaker 03:
I have three issues that I'd like to discuss with the court today.

[00:01:37] Speaker 03:
First, being the district court's abuse of discretion and nearly trebling the damages against my client, IPS.

[00:01:44] Speaker 03:
The second being the district court's failure to abide by this court's mandate and its enhancement analysis.

[00:01:50] Speaker 03:
And third, the district court's erroneous determination to use the date of the original compensatory damages judgment as the date from which to calculate post-judger interest on its revised enhancement.

[00:02:01] Speaker 04:
Well, unfortunately for you, the questions I have don't seem to be on your list.

[00:02:06] Speaker 04:
So let me start.

[00:02:08] Speaker 04:
And can we just focus on this summary judgment issue and what happened, the limitations of willfulness?

[00:02:16] Speaker 04:
I mean, it is an argument you make, right?

[00:02:18] Speaker 04:
Correct.

[00:02:20] Speaker 04:
That the post litigation conduct should have been excluded from the willfulness analysis, correct?

[00:02:28] Speaker 03:
That's an argument we made throughout our briefing.

[00:02:31] Speaker 03:
with the district court and one that the district court ignored, never was addressed.

[00:02:36] Speaker 04:
Okay, so let me ask you a little about that argument, which is one, I think it's clarified in red, but I think you kind of agree in gray.

[00:02:45] Speaker 04:
So my understanding from the briefing, and you can tell me if you're wrong, is that you would agree that the sale of the classic products, even if it occurred post-litigation, would still be covered under the willfulness determination of the revised

[00:03:00] Speaker 04:
products would not.

[00:03:03] Speaker 03:
Is that correct?

[00:03:04] Speaker 03:
Well, our view on the order, I would say yes in part, Your Honor.

[00:03:08] Speaker 03:
I would say the sales of the classic products pre-suit fall within the judge's willfulness and enhancement analysis.

[00:03:17] Speaker 03:
But I believe the conduct, egregious conduct stops.

[00:03:22] Speaker 06:
Just for a couple of months.

[00:03:24] Speaker 06:
Correct.

[00:03:25] Speaker 06:
But not all of the sales of the classic.

[00:03:31] Speaker 06:
exactly the same product where the sales began before, but they just continued into the litigation.

[00:03:37] Speaker 03:
Correct.

[00:03:37] Speaker 03:
And my position on that is that with respect to the classic product, there's no conduct that's being cited to during the course of the litigation that would be egregious.

[00:03:47] Speaker 03:
And in combination with the court's post, the ruling on post-suit willfulness as a matter of law, I believe that it's absolved IPS

[00:03:58] Speaker 03:
egregious conducts as of the filing of the suit.

[00:04:01] Speaker 03:
And in fact, when we filed a new judgment for a matter of law, we presented remedial actions and things like that to the court.

[00:04:13] Speaker 03:
WCM argued that those were irrelevant because of that order.

[00:04:17] Speaker 03:
And the court agreed in a footnote saying that he was going to consider those actions irrelevant.

[00:04:22] Speaker 04:
I'm really confused about this point.

[00:04:25] Speaker 04:
Can you look at Gray, page 5?

[00:04:28] Speaker 04:
I mean, Red has a big excerpt.

[00:04:30] Speaker 04:
There's a big excerpt in Red that talks about, and we can ask Red, maybe I misunderstood their point.

[00:04:37] Speaker 04:
But I thought that their point is that you had conceded, and that's at the bottom of 19, top of 20.

[00:04:46] Speaker 04:
But then in gray, seemingly in response to that, you say, so while it is true that the summary judgment and other orders did not prevent the district court from being able to consider seals of the classic product after the date of commencement of the lawsuit to assess enhancement, near seals of the classic product after the date of the suit on their own,

[00:05:07] Speaker 04:
cannot possibly warrant exorbitant punishment that was levered under IPS.

[00:05:13] Speaker 04:
So this seems to say that you're saying classic products sold pre- and post-suit are fear gained for enhancement, even though you obviously disagree with the judge's conclusion with respect to the stiffness of that enhancement.

[00:05:30] Speaker 04:
And so, I mean, taking all of this, and it caused me to go back and record,

[00:05:33] Speaker 04:
It seemed to me, so you're disagreeing with me, that if we agree with you on the import of the summary judgment, which is an open question, that we are simply talking about the post-litigation sales of the revised product.

[00:05:49] Speaker 04:
You don't agree with that.

[00:05:50] Speaker 03:
Well, I think, Your Honor, I guess the point I was trying to make is I'm not going to disagree with you on that.

[00:05:56] Speaker 03:
What I'm going to suggest is that

[00:05:58] Speaker 03:
The conduct that it's cited to, there isn't any conduct cited to post-suit.

[00:06:04] Speaker 03:
So in my view, when you review the totality of the circumstances against classic product sales post-suit,

[00:06:13] Speaker 03:
There shouldn't have been an enhancement.

[00:06:15] Speaker 04:
OK, but with respect to revised, could you have some rough number about what we're talking about in terms of the amount, the percentage, like the sales, the entirety of the sales that have been included in this?

[00:06:28] Speaker 03:
Post-suit.

[00:06:29] Speaker 04:
I believe the revised product post-suit.

[00:06:32] Speaker 03:
What portion of the?

[00:06:33] Speaker 03:
I believe the sales of the revised classic product post-suit amount to about 40% of the sales.

[00:06:42] Speaker 06:
My recollection is that the last time you all were here, you indicated or a record indicated that about 15% of the units for which damages had been awarded were revised classics.

[00:07:02] Speaker 06:
Just 15%.

[00:07:03] Speaker 06:
And I remember the numbers.

[00:07:06] Speaker 03:
I'm sorry, Your Honor.

[00:07:08] Speaker 03:
I don't have that number in front of me, but I'm sure that's within the original judgment.

[00:07:15] Speaker 06:
And you were the appellant last time?

[00:07:21] Speaker 03:
We were, yes.

[00:07:21] Speaker 06:
And I think you said undisputed evidence suggests that about 15% or about 207,597 of the units were revised classic and revised classic

[00:07:33] Speaker 06:
rough-in products at page 31 of your brief last time.

[00:07:37] Speaker 06:
Okay.

[00:07:37] Speaker 03:
Well, I'll take that as a factor.

[00:07:39] Speaker 06:
Which would mean assuming $207,597 and there's a $1.50 enhancement, we're talking about $312,000 worth of enhancement attributed to the revised classic.

[00:07:53] Speaker 06:
Correct.

[00:07:59] Speaker 03:
Well, assuming I've answered all your questions on the post-judgment willfulness order, what we found particularly troubling on remand is the district court's treatment of the Federal Circuit's order.

[00:08:14] Speaker 03:
In our view, the district court merely sort of played lip service to the remand instructions, particularly with respect to factors two and factor seven.

[00:08:28] Speaker 03:
With respect to factor two, this court had held that the factor only slightly favored enhancing.

[00:08:38] Speaker 03:
However, the district court

[00:08:40] Speaker 03:
relying on the same testimony that this court discredited as supporting that contention, Mr. Cassell's testimony regarding investigating whether AV&A purchased the patents.

[00:08:52] Speaker 03:
As this court said, that testimony involved patents and products not at issue in this case and can't support conclusion that this factor was the most important and wastes heavily.

[00:09:02] Speaker 03:
But more importantly, the district court, in an effort to support its determination on factor two,

[00:09:08] Speaker 03:
cites to a snippet of testimony from Jeff Hummer of IPS to conclude that the redesign was not done in an effort to avoid infringement, but only to take away WCM's perception.

[00:09:19] Speaker 03:
And in my mind, that doesn't even make sense.

[00:09:23] Speaker 03:
Why would IPS go through the efforts of revising its design if it was not for the purposes of trying to avoid

[00:09:31] Speaker 03:
the infringement claims.

[00:09:33] Speaker 04:
Do you know what the standard of review is for us?

[00:09:36] Speaker 04:
I mean, this paragraph, you're talking about the paragraph in Appendix 8, right, where the district court discusses this testimony.

[00:09:45] Speaker 04:
So that's reversible error under an abuse of discretion standard that he chose to read this testimony in that way and to take away from it?

[00:09:55] Speaker 03:
Well, first of all, I say it's abuse of discretion because this is the same testimony that this court

[00:10:01] Speaker 03:
had said the last time was inapplicable to this review.

[00:10:10] Speaker 06:
Suppose that we thought that because of what happened during summary judgment and what was then assumed to have been taken off the table, that the revised classic is not a proper subject of enhancement

[00:10:28] Speaker 06:
then does the point you're now talking about matter for the rest of the case?

[00:10:34] Speaker 03:
Well, the point I'm now talking about matters with respect to the classic product and viewing the classic product in the totality of the circumstances.

[00:10:44] Speaker 03:
This is the only evidence that the court cites in support of its contention that we didn't have a good faith belief.

[00:10:52] Speaker 03:
The court cites to this testimony from Mr. Casella that during the purchase of the products in question and the company, that they didn't conduct the full review of the patents.

[00:11:05] Speaker 03:
And as this court recognizes, the patents at issue in the suit did not even exist in 2010.

[00:11:10] Speaker 03:
And if you look at the court's citations, he actually omits the middle page, which ties it to the 2010 inquiry.

[00:11:18] Speaker 06:
Well, what about the line about we did this to avoid the perception?

[00:11:24] Speaker 06:
That's about the revised classic?

[00:11:26] Speaker 03:
Correct.

[00:11:26] Speaker 06:
I'm sorry.

[00:11:27] Speaker 03:
That's right.

[00:11:28] Speaker 03:
And I find troubling where the very next question asked of the witness was, is it to avoid infringement?

[00:11:36] Speaker 03:
And he acknowledged that that was the intent.

[00:11:38] Speaker 03:
And yet I believe the district court was trying to suggest it was otherwise.

[00:11:43] Speaker 03:
In terms of refactor seven, this court held that

[00:11:47] Speaker 03:
The revised classic was a remedial measure.

[00:11:51] Speaker 03:
Yet the district court on remand determined it wasn't a remedial measure.

[00:11:56] Speaker 03:
I think, again, in combination with the judge's determination and summary judgment to suggest it wasn't a remedial measure, there's no evidence to suggest we weren't intending on designing a product that didn't infringe the claims of the patent.

[00:12:13] Speaker 03:
It just certainly wouldn't make any sense

[00:12:17] Speaker 02:
Even if the revised product was a remedial attempt, what are we to make of the fact that your client continued to sell a classic product?

[00:12:28] Speaker 03:
Well, I think what my client did was wind down the sales of the classic product that it had an inventory.

[00:12:37] Speaker 03:
When they started manufacturing the revised in July, I believe it was 2014, they did not manufacture any more classic products.

[00:12:45] Speaker 03:
But they had a large inventory.

[00:12:46] Speaker 03:
various sizes, various finishes, and they wound down that inventory.

[00:12:51] Speaker 03:
And then all the customers were switched over to the robot.

[00:12:55] Speaker 04:
So that doesn't excuse the infringing conduct, right?

[00:12:59] Speaker 04:
I mean, yeah, they had an inventory, but how does that answer the question about why they shouldn't be calling on doing that?

[00:13:07] Speaker 03:
That's a lot, right?

[00:13:11] Speaker 03:
Well, what I'm saying is damages were assessed against those.

[00:13:13] Speaker 03:
We're not denying that damages shouldn't be assessed.

[00:13:15] Speaker 03:
But the question is whether that business practice is something that warrants treble damages or nearly treble damages.

[00:13:22] Speaker 06:
I mean, on the assumption that you knew this was infringing it,

[00:13:30] Speaker 06:
say, we had a lot of product.

[00:13:32] Speaker 06:
We weren't going to throw it away.

[00:13:33] Speaker 06:
We need to get a return on it.

[00:13:37] Speaker 03:
Well, I think if you accepted your assumption, it wouldn't be an excuse.

[00:13:42] Speaker 03:
But I would say I would not accept that assumption.

[00:13:45] Speaker 03:
I don't think at that point in time in the case, IPS believed that it was infringing.

[00:13:50] Speaker 03:
I think the redesign was an effort to try to further distance itself from the claims

[00:13:56] Speaker 03:
and further insulate itself from further damages.

[00:13:59] Speaker 02:
If you didn't think the classic product was an infringement, why did you redesign it?

[00:14:07] Speaker 03:
Again, I think that was a smart business practice.

[00:14:10] Speaker 03:
You want to further get yourself away.

[00:14:13] Speaker 02:
Maybe it would have been a smarter business practice to stop selling the classic while this was being resolved.

[00:14:21] Speaker 03:
I think then you would leave customers without an option or they'd have to go somewhere else.

[00:14:28] Speaker 03:
You might be in violation of your business contracts.

[00:14:30] Speaker 03:
I can't speak to that and it's not in the record.

[00:14:32] Speaker 03:
But I see that I'm in my rebuttal time.

[00:14:35] Speaker 03:
I'd just like to, unless there are other questions.

[00:14:37] Speaker 04:
How long did you continue selling the Classic on the shelf to get rid of your surplus?

[00:14:44] Speaker 03:
I believe the record reflects that it was a three and a half year sales period.

[00:14:49] Speaker 03:
This was after the suit, after the conclusion of this case.

[00:14:54] Speaker 03:
Not after the conclusion of this case, Your Honor, no.

[00:14:57] Speaker 06:
After the onset of the case.

[00:14:58] Speaker 03:
After the onset of the case, correct.

[00:15:00] Speaker 03:
I believe it was wound down by the summer following the decision by this court.

[00:15:04] Speaker 03:
OK.

[00:15:05] Speaker 03:
Thank you.

[00:15:06] Speaker 03:
Thank you.

[00:15:16] Speaker 00:
Good morning.

[00:15:17] Speaker 00:
Good morning.

[00:15:19] Speaker 00:
May it please the court?

[00:15:22] Speaker 00:
The issue in this case turns on the standard review.

[00:15:24] Speaker 00:
It's an abuse of discretion.

[00:15:26] Speaker 04:
Can we just start where we started with your friend?

[00:15:29] Speaker 04:
Sure.

[00:15:29] Speaker 04:
Which is, at least speaking for myself, I've got some question with respect to the summary judgment that was entered into it first.

[00:15:40] Speaker 04:
And I know what your arguments are.

[00:15:42] Speaker 04:
But let's assume for a moment

[00:15:45] Speaker 04:
that we conclude that the revised, the sale of revised products post litigation should not have been included in the willfulness determination.

[00:15:55] Speaker 04:
That's what the district court had said in summary judgment, right?

[00:16:01] Speaker 04:
Initially.

[00:16:02] Speaker 00:
I don't think that's exactly what the district court said on summary judgment.

[00:16:06] Speaker 00:
And all indications after that are that that's not what that means.

[00:16:11] Speaker 00:
What the court said on summary judgment

[00:16:14] Speaker 00:
recognizing the court denied summary judgment.

[00:16:17] Speaker 00:
It wasn't granted.

[00:16:18] Speaker 00:
The court said that as to the objective prong, based on the mentor case, that post litigation conduct wouldn't be looked at.

[00:16:29] Speaker 00:
The objective prong, based on mentor, because we did not file for a preliminary injunction, post litigation conduct would not be considered.

[00:16:40] Speaker 00:
Now what happened since then?

[00:16:42] Speaker 00:
the jury was given the question on willful infringement as to all the products.

[00:16:48] Speaker 00:
And this court affirmed that finding of willful infringement as to the revised classic.

[00:16:54] Speaker 00:
So we're not going back to reopen willful infringement on the revised classic.

[00:17:01] Speaker 00:
That was decided.

[00:17:02] Speaker 00:
It was given to the jury, and the jury decided it.

[00:17:07] Speaker 00:
Since then, halo.

[00:17:09] Speaker 06:
Let's assume that

[00:17:13] Speaker 06:
not the denial of summary judgment, but the paragraph that sort of, in some sense or other, grants summary judgment as to the post litigation, the one at 55, 56.

[00:17:28] Speaker 06:
Let's assume that the reasoning there is simply wrong now.

[00:17:32] Speaker 06:
It is wrong now.

[00:17:33] Speaker 06:
OK, right.

[00:17:33] Speaker 00:
And the core reckoning.

[00:17:34] Speaker 06:
The junction part, even the reasoning on its face goes no further than to say there is some evidence, not that there's no tribal issue.

[00:17:42] Speaker 06:
Nevertheless.

[00:17:44] Speaker 06:
Why?

[00:17:47] Speaker 06:
Isn't it evident that the question of willfulness, full willfulness, as to product introduced after the suit was filed was no longer on the table for the jury to be considered as confirmed, perhaps, by your response to the JMAAL, your opposition to JMAAL on willfulness afterwards, where you say, why are they talking about post-litigation misconduct?

[00:18:15] Speaker 06:
It is immaterial.

[00:18:17] Speaker 06:
Not in the case.

[00:18:19] Speaker 00:
Right.

[00:18:21] Speaker 00:
There's the jury verdict.

[00:18:23] Speaker 06:
Which is generic.

[00:18:26] Speaker 06:
It just doesn't say.

[00:18:27] Speaker 00:
It doesn't differentiate.

[00:18:29] Speaker 00:
And so willfulness was found as to the revised classic product.

[00:18:33] Speaker 00:
And this court specifically affirmed that finding, that there was willfulness as to the revised classic.

[00:18:42] Speaker 00:
That question was not open on remand.

[00:18:46] Speaker 00:
And if you look at what the district court did in addition to that, as to the products that were sold after the verdict, the intermediate period, the judge enhanced that as well.

[00:18:58] Speaker 00:
That's inconsistent with saying nothing after the verdict could be considered for willfulness.

[00:19:04] Speaker 00:
I think it also puts the focus on the wrong issue, which is enhancement here.

[00:19:08] Speaker 00:
And there are plenty of enhancement factors after the filing of the litigation.

[00:19:14] Speaker 06:
that can be considered, such as the duration of the misconduct.

[00:19:28] Speaker 06:
or something like that, that we have stuck by the idea that a jury fact-finding of subjective willfulness is a necessary precedent to enhancement.

[00:19:40] Speaker 06:
So if the record indicates that there simply was no jury finding of willfulness as to the revised classic, if that's true, then the rest of the factors don't matter for that.

[00:19:55] Speaker 00:
No, Judge Toronto, I would agree with you if that were the case.

[00:19:59] Speaker 00:
That's not what we have.

[00:20:01] Speaker 00:
We do have a finding of willfulness, and this court affirming it.

[00:20:06] Speaker 00:
Perhaps I'm misreading what the court said.

[00:20:08] Speaker 00:
What this court said, what page you?

[00:20:13] Speaker 00:
Well, I have the version from Lexus, and it's on the first page or so, where it says, we conclude that WCM provided sufficient evidence

[00:20:24] Speaker 00:
for a reasonable jury to have found infringement under the doctrine of equivalence.

[00:20:29] Speaker 00:
That only relates to the revised classic.

[00:20:31] Speaker 00:
The classic was literal infringement.

[00:20:33] Speaker 00:
And to have found that IPS's infringement was willful.

[00:20:39] Speaker 00:
This very same argument was made the last time.

[00:20:43] Speaker 00:
If you look at IPS's brief on page 40, they made the exact same argument

[00:20:48] Speaker 00:
that their conduct could not be willful as to the revised classic because it was after the litigation was filed.

[00:20:58] Speaker 00:
They made that identical argument and this court did not accept it.

[00:21:03] Speaker 00:
So given that there's a finding of willful infringement that was affirmed by this court, the focus is on enhancement and that should be an abuse of discretion standard.

[00:21:16] Speaker 04:
And I think Judge Toronto referred to this.

[00:21:19] Speaker 04:
In your J-Mall motion, you say post-litigation actions are irrelevant following the court's ruling on summary motion for summary judgment and no-willfulness.

[00:21:27] Speaker 04:
And you cite back to that and footnote 21.

[00:21:35] Speaker 00:
Right.

[00:21:35] Speaker 00:
At that time,

[00:21:37] Speaker 00:
That's where we were.

[00:21:37] Speaker 00:
Halo hadn't been decided.

[00:21:39] Speaker 00:
The court had said, as to the objective prong, that we weren't going to look at past the litigation filing.

[00:21:46] Speaker 00:
And we didn't.

[00:21:49] Speaker 00:
IPS was making the argument that, oh, look at what we did afterwards as to willful infringement.

[00:21:54] Speaker 00:
And we said, well, again, we're talking about willful infringement, not enhancement.

[00:22:00] Speaker 00:
That argument was fully vetted.

[00:22:01] Speaker 00:
And the finding of willful infringement was upheld.

[00:22:06] Speaker 00:
And as the court recognizes, what the court said about the objective prong back pre-Halo is no longer the law, as well as the court's statement about we didn't file a preliminary injunction, so you wouldn't look at that conduct.

[00:22:23] Speaker 00:
And by the time we got around to enhancement, that was recognized.

[00:22:27] Speaker 00:
So we still have a willful infringement finding as to the revised classic.

[00:22:34] Speaker 00:
I shouldn't be arguing willful infringement as to that product.

[00:22:40] Speaker 00:
The court found that it was a trivial change.

[00:22:44] Speaker 00:
I'm not sure how that absolves anybody from willfulness.

[00:22:47] Speaker 00:
But be that as it may, the question here is just enhancement.

[00:22:52] Speaker 00:
was 2.5 times incorrect on this record.

[00:22:56] Speaker 06:
By the way, I asked the question about putting some numbers on it.

[00:23:00] Speaker 06:
Do you have a different view of whether about 15%, 200,000 units is what we're talking about on the revised classic?

[00:23:08] Speaker 00:
I remember from the last time that was about what it was.

[00:23:12] Speaker 00:
I don't know if there was an, there must be an accounting of that number somewhere, but for purposes of this, I would accept that.

[00:23:18] Speaker 06:
In which case the enhancement for those units would be a dollar fifty per unit or about three hundred and twelve thousand dollars.

[00:23:26] Speaker 06:
It should be around that amount, yes.

[00:23:28] Speaker 06:
It would be fifteen percent.

[00:23:28] Speaker 06:
Just to get a sense of the scale of what we're talking about.

[00:23:31] Speaker 00:
Fifteen percent of the total which is a little over two million dollars, right?

[00:23:35] Speaker 00:
That sounds exactly right.

[00:23:39] Speaker 00:
So here the district court on remand

[00:23:43] Speaker 00:
did what I believe this court instructed and went back and looked at those factors.

[00:23:48] Speaker 00:
And there's no violation of the mandate.

[00:23:50] Speaker 00:
It was left open for the district court to consider the factors.

[00:23:55] Speaker 00:
And to take, for example, the copying factor in the court's first opinion, it had only a paragraph that mentioned the culture of copying.

[00:24:06] Speaker 00:
And this court said that it doesn't really sound like enough.

[00:24:10] Speaker 00:
But it didn't foreclose the district court from looking at actual copying, and it did that on remand.

[00:24:16] Speaker 00:
It wasn't just the culture of copying.

[00:24:18] Speaker 00:
The court found that IPS actually copied the products in this case.

[00:24:24] Speaker 00:
That's a factual finding that has not been shown to be erroneous or an abuse of discretion in relying on it.

[00:24:32] Speaker 00:
Same for the factor two on their good faith belief.

[00:24:37] Speaker 00:
There was some discussion in the first opinion about previous products and IPS's practices.

[00:24:46] Speaker 00:
On remand, the district court went and found as to these products, they did not have a good faith belief.

[00:24:53] Speaker 00:
And it was shown throughout the three and a half years where they continued to infringe, including selling the classic product after they had the revised classic.

[00:25:04] Speaker 00:
This is a classic abuse of discretion standard.

[00:25:07] Speaker 00:
And we don't think IPS has shown that any finding is erroneous or that the court abused its discretion in coming to this enhancement factor.

[00:25:16] Speaker 04:
Can I just ask you, do you know when was HALO decided relative to the proceedings in this case?

[00:25:26] Speaker 04:
Sure.

[00:25:26] Speaker 04:
Was it 2016?

[00:25:27] Speaker 00:
I have my timeline right here in front of me.

[00:25:31] Speaker 00:
Thank you.

[00:25:33] Speaker 00:
Yes.

[00:25:34] Speaker 00:
The trial was in October of 2015 and then there was post-trial briefing.

[00:25:42] Speaker 00:
May of 2016 is when the court grants enhanced damages.

[00:25:49] Speaker 00:
Halo, June of 2016, which was the next month after the court's decision on enhanced damages.

[00:25:57] Speaker 00:
Summary judgment was back in 2015, around right before the trial, and HALO was decided right after that.

[00:26:06] Speaker 00:
And the court recognized that later on because it had only dealt with the objective prong that had been overruled by HALO.

[00:26:14] Speaker 04:
Yeah, the concern is frankly that

[00:26:17] Speaker 04:
You may be right about that, but the question remains of what everyone's understanding was as to the question that was going to the jury at the time it went to the jury.

[00:26:29] Speaker 04:
So if the understanding was we were in pre-Halo land, and in the summary judgment, the judge had really concluded that post litigation was out, that everybody understood the question of willfulness going to the jury

[00:26:47] Speaker 04:
was limited to the priest stuff.

[00:26:50] Speaker 04:
And so if that is the case, then yes, there may be intervening law that can still be applied subsequently, but why doesn't at least, I don't want to say these words because they're a new trial or something.

[00:27:04] Speaker 04:
I mean, if the jury never decided it because it was everyone's understanding that that question was not going to the jury on rulefulness, why don't you have a little bit of a hiccup here?

[00:27:16] Speaker 00:
I do, I do completely and I would say there was no such understanding and the way you can determine that is, first of all, look at the jury instructions.

[00:27:25] Speaker 00:
They don't say anything about that.

[00:27:28] Speaker 00:
Look at the jury verdict, which also doesn't say anything about that.

[00:27:32] Speaker 00:
And third, I'm sorry, on the jury verdict form was listed the 272

[00:27:41] Speaker 00:
And there was no question about that.

[00:27:45] Speaker 06:
That was introduced after the litigation was filed.

[00:27:51] Speaker 06:
was infringed only by the revised?

[00:27:54] Speaker 00:
No.

[00:27:55] Speaker 06:
But it was after.

[00:27:56] Speaker 04:
But the judge threw that out.

[00:27:57] Speaker 04:
Isn't that the thing?

[00:27:58] Speaker 04:
The judge threw out, recognizing that that wasn't before the jury.

[00:28:02] Speaker 04:
That's right.

[00:28:03] Speaker 04:
Because it was post-litigation.

[00:28:05] Speaker 04:
That's right.

[00:28:05] Speaker 04:
So why is it not, again, my point being that everybody understood, as indicated by your Jamal finding, that at the time, pre-Halo, the post-litigation stuff was off the table.

[00:28:19] Speaker 04:
OK.

[00:28:19] Speaker 00:
Well, first of all, I think that's broader than what anyone would have understood.

[00:28:24] Speaker 00:
Because if you look at the district court's statement on summary judgment, it relates to the objective prong.

[00:28:32] Speaker 00:
And also, it says solely conduct after the litigation.

[00:28:38] Speaker 00:
And we have taken the position throughout that conduct that began before and continued throughout can be considered for willfulness.

[00:28:47] Speaker 00:
And the revised classic.

[00:28:49] Speaker 00:
It's part of the same conduct.

[00:28:51] Speaker 00:
There really is no difference because they made what the court found was a trivial change just to change WCM's perception.

[00:29:01] Speaker 00:
If the test for the Doctrine of Equivalence, an insubstantial change, I don't know how that exonerates anybody from willful infringement.

[00:29:13] Speaker 04:
Can I just, before the time runs out, the question we pressed with your friend, or I pressed with your friend, which is, has he, is it your clear understanding that he has conceded that at most we're talking about the revised product and not the continuation of the classic product?

[00:29:32] Speaker 00:
Your Honor, I don't know whether they've conceded that.

[00:29:34] Speaker 00:
They seem to have conceded that in the last appeal.

[00:29:38] Speaker 00:
And I thought some of their statements, again, were to that effect.

[00:29:41] Speaker 00:
But from some of the portions of their brief that looks like they were challenging the classic as to any time after the suit was filed.

[00:29:49] Speaker 00:
And that, I believe, is water under the bridge on willful infringement as to both the classic and the revised classic.

[00:29:57] Speaker 00:
And so the only issue before this court is the amount of the enhancement and whether that was an abuse of discretion.

[00:30:05] Speaker 00:
Given all that happened on summary judgment,

[00:30:10] Speaker 00:
the briefs in this case in the prior appeal, we have a finding of local infringement as to all products that was affirmed.

[00:30:20] Speaker 00:
And so the only question is enhancement.

[00:30:41] Speaker 01:
please the court, Joe Farquhar, for the appellant IPS.

[00:30:44] Speaker 01:
Your Honor, I heard a lot of my prior colleague mention about the willfulness verdict.

[00:30:49] Speaker 01:
And I think Judge Toronto said it, which is clear that the verdict of willfulness does not supplant the judge's obligations to exercise discretion and has been made clear by the Supreme Court.

[00:31:00] Speaker 01:
And in fact, this court said in the prior opinion, the channel of discretion here is narrow.

[00:31:06] Speaker 01:
Some of the items that my opinion

[00:31:08] Speaker 06:
And Mr. Sylvia pointed out the... Can you address Mr. Jakes' point, his argument that this issue of willfulness of the sale of the revised classic is definitively settled by this court's prior ruling in this matter?

[00:31:29] Speaker 01:
Certainly, Your Honor.

[00:31:30] Speaker 01:
I think what was done last time was that there was a motion on the appeal of a denial for judgment as a matter of law of no willfulness.

[00:31:40] Speaker 01:
It was this court's duty to find and determine if there was substantial evidence on the record to support the willfulness verdict.

[00:31:47] Speaker 01:
And that was done.

[00:31:48] Speaker 01:
But none of that evidence.

[00:31:49] Speaker 06:
But only as to the report, not only, but including as to the revised classic.

[00:31:53] Speaker 06:
You read a statement, a sentence, right from the beginning of our opinion.

[00:31:57] Speaker 06:
To conclude, WCM provided sufficient evidence for a reasonable jury to have found infringement when the word doctorate of equivalent and to have found that IPS's infringement was willful.

[00:32:07] Speaker 06:
The doctorate of equivalence issue was only about the revised?

[00:32:11] Speaker 06:
That is correct.

[00:32:12] Speaker 06:
And do you read that second half of the sentence, and to have found that IPS's infringement was willful?

[00:32:21] Speaker 06:
limited to or at least including or not including the revised classes?

[00:32:26] Speaker 01:
We would say the position doesn't include the revised, however.

[00:32:29] Speaker 01:
How was the matter argued?

[00:32:31] Speaker 01:
I don't remember the rules.

[00:32:33] Speaker 01:
At that point, the question was, was there substantial evidence to support the verdict?

[00:32:37] Speaker 01:
There was no determination in the willfulness verdict of which product to which the willfulness applied, and it even

[00:32:42] Speaker 01:
had related to any of the acts related to either product, the copying, the good faith belief.

[00:32:48] Speaker 01:
In fact, that's why the jurisprudence is you don't rely on the willfulness verdict, because we don't know why the jury found how it did.

[00:32:54] Speaker 01:
And WCM's

[00:32:56] Speaker 01:
The biggest arrow in their quiver is that, well, we have a wilfulness verdict.

[00:33:00] Speaker 01:
So therefore, from that, it springs.

[00:33:02] Speaker 01:
There's a wellspring of facts to find enhancement from which the judge can draw upon and say, listen, well, if the jury found wilfulness, it had to find copying.

[00:33:10] Speaker 01:
It had to find lack of good faith belief.

[00:33:12] Speaker 01:
It had to find whatever facts that suit the matter.

[00:33:16] Speaker 01:
And the problem that we have here, and my client, while, yes, the verdict is what it is, it's been upheld, my client is not an egregious padding pirate.

[00:33:25] Speaker 01:
And let's focus for the moment on the classic products.

[00:33:28] Speaker 01:
Certainly, these patents were sprung on the client two months before they filed suit, and then they try to wind down and sell the product.

[00:33:36] Speaker 01:
But that's the only content we're talking about.

[00:33:38] Speaker 01:
There's many other companies in the United States accused of patent infringement that do the same sort of thing.

[00:33:43] Speaker 01:
Are they all wanton, reckless patent infringers?

[00:33:46] Speaker 01:
At the time in which the products were being wound down, there were summary judgment motions.

[00:33:49] Speaker 01:
There was a clean construction?

[00:33:51] Speaker 06:
Can I just ask you one other sort of procedural question?

[00:33:53] Speaker 06:
Certainly, Your Honor.

[00:33:54] Speaker 06:
Is there anything that would prevent us, as a procedural matter, don't get into the substance case, from ruling that a new trial should be awarded subject to a remittitor of the $312,000 at issue for enhancement

[00:34:20] Speaker 06:
And presumably, if a new trial, we haven't talked about prejudgment interest.

[00:34:25] Speaker 06:
But on the assumption that prejudgment interest cannot run from the very beginning, but only in this case as to, what is it, 2018 or?

[00:34:35] Speaker 06:
Post-judgment interest, Your Honor.

[00:34:36] Speaker 06:
Post-judgment, sorry.

[00:34:37] Speaker 06:
Post-judgment interest.

[00:34:39] Speaker 06:
Since March of 2019, then a new trial would push that forward even further.

[00:34:46] Speaker 01:
And Your Honor, to your question, I'm not sure procedurally what would

[00:34:49] Speaker 01:
prevent you.

[00:34:49] Speaker 01:
However, we do agree that the three post-judgment interests, if at all, should come from the final determination enhancement.

[00:34:56] Speaker 01:
As far as this determination on summary judgment

[00:34:59] Speaker 01:
to Your Honor Judge Crost, the district court, whatever one's interpretation of summary judgment and counsel has tried many times to maybe navigate that, whatever anyone in the trial court thought that order meant, it's clear from Appendix 44 the district court did say, since post litigation conduct is not an issue,

[00:35:20] Speaker 01:
site, IDS's redesign efforts are irrelevant considerations.

[00:35:24] Speaker 01:
This was cited as footnote three, and this was the order on the JMAW of no willfulness and enhanced damages.

[00:35:34] Speaker 01:
It's hard to find the court using its best discretion, again, in that narrow line of discretion allowed to it under the enhancement inquiry.

[00:35:44] Speaker 01:
At one point, withhold from my client the ability to defend itself using a redesigned product.

[00:35:50] Speaker 01:
And then not only do that, but then try to use that redesigned product as a basis to say, we somehow were trying to conceal infringement.

[00:35:57] Speaker 01:
And then after this court's mandate that it was seen as being remedial, albeit ineffective, then to still say, you know what, I'm going to still award close to treble damages.

[00:36:06] Speaker 01:
I didn't do three because the federal circuit didn't want me to do that.

[00:36:09] Speaker 01:
So I'm going to do two and a half, but the issue

[00:36:12] Speaker 01:
We see there a flavor of discretion that

[00:36:14] Speaker 01:
would, I think, set a bad precedent for other litigants, in particular, where here, all that was really what we're talking about is the sale of a product that was subsequently found to infringe.

[00:36:25] Speaker 05:
Bad flavor is going to be a really hard, abusive discretion of people.

[00:36:30] Speaker 01:
Well, I'm saying, though, Your Honor, here, if you look at the facts in a granular level, there were a lot of facts and circumstances that we put forth in our briefs that the district court summarily just didn't consider.

[00:36:43] Speaker 01:
WCM mentioned copying, but we put forward that the things allegedly copied were not distinct or the design or ideas of his client, although they may think it is.

[00:36:54] Speaker 01:
And then certainly our patents we felt were indicative of our belief that the product that was being, this classic product was innovative and different.

[00:37:01] Speaker 01:
They don't dispute the patent for the classic.

[00:37:04] Speaker 04:
Well, we're well beyond time.

[00:37:06] Speaker 01:
Well, thank you for your time.

[00:37:07] Speaker 01:
If there's any other questions.

[00:37:08] Speaker 01:
Thank you.

[00:37:09] Speaker 01:
We thank both sides for the cases submitted.