[00:00:00] Speaker 01:
Our next case is Alpac Polyester versus Polymetrix AG, 2021, 1706.

[00:00:23] Speaker 01:
Mr. Schweibenz, we're ready when you are.

[00:00:36] Speaker 01:
And you don't need your mask here.

[00:00:42] Speaker 00:
I'm sorry, I didn't catch that last part.

[00:00:44] Speaker 01:
I said you don't need your mask while arguing.

[00:00:46] Speaker 00:
Thank you, Your Honor.

[00:00:47] Speaker 00:
I appreciate that very much.

[00:00:52] Speaker 03:
Can I just clear up a couple things before you begin?

[00:00:54] Speaker 03:
So there was no separate action against IVP directly, right?

[00:01:01] Speaker 00:
That's correct, Your Honor.

[00:01:02] Speaker 03:
And the total value of the

[00:01:04] Speaker 03:
three samples that are at issue here is under $50?

[00:01:11] Speaker 00:
We disagree with that, Your Honor.

[00:01:13] Speaker 00:
But ultimately, the goal of this case was not a monetary issue.

[00:01:17] Speaker 00:
It was ultimately we were seeking an injunction.

[00:01:20] Speaker 00:
That was the primary goal of the case.

[00:01:23] Speaker 00:
But we disagree with that in terms of the value of the case.

[00:01:26] Speaker 03:
So why didn't you seek an injunction against IVP?

[00:01:29] Speaker 00:
Well, the case was brought against Polymetrix and ultimately that was the party that we chose to file suit against.

[00:01:39] Speaker 00:
We had not filed a case against IVP directly.

[00:01:42] Speaker 03:
Okay.

[00:01:46] Speaker 00:
I thank you, good morning, and may it please the court.

[00:01:49] Speaker 00:
There are two independent categories of reasons to reverse the grant of summary judgment of no induced infringement.

[00:01:55] Speaker 00:
First, there are disputed issues of material fact as to whether Polymetrix induced infringement of the asserted patents on the part of its customer Indorama.

[00:02:05] Speaker 00:
And second, the district court erred in deciding multiple procedural issues that contravene well-settled Eighth Circuit precedent.

[00:02:14] Speaker 00:
With respect to the multiple disputed issues of material facts, Polymetrix actively induced its customer in Narama's infringement, and Judge Nelson aired in granting summary judgment of no inducement, given evidence that Polymetrix had knowledge of the asserted patents, as well as knowledge of Narama's infringing activities.

[00:02:37] Speaker 00:
It's not disputed, Your Honor, is that?

[00:02:38] Speaker 04:
Not the evidence that they encouraged importation.

[00:02:42] Speaker 00:
Yeah, there's multiple facts in the record Judge Stoll with respect to that point.

[00:02:50] Speaker 00:
The main one is the contract issue that we argued that they entered into a contract and ultimately under Swedish law, that was the law that was chosen, they were essentially responsible

[00:03:00] Speaker 00:
for actions that occurred in this commissioning period.

[00:03:05] Speaker 00:
So because there was an instruction to direct Indorama... Because at the time they owned the product under the contract.

[00:03:13] Speaker 00:
That's correct.

[00:03:15] Speaker 04:
There should be an inference of inducement to import based on that.

[00:03:21] Speaker 00:
That's correct, Your Honor.

[00:03:22] Speaker 04:
What about the contrary evidence?

[00:03:23] Speaker 04:
Isn't there some testimony to the contrary?

[00:03:26] Speaker 00:
Yes.

[00:03:27] Speaker 00:
And from our perspective, Your Honor, that's a classic fact dispute.

[00:03:30] Speaker 00:
On one side of the table, we have this document where the ultimate US test results were incorporated into a polymetrics document.

[00:03:38] Speaker 00:
We have expert testimony saying that that's the case.

[00:03:42] Speaker 00:
We also have an admission from polymetrics CEO that those US test results were baked in to that document.

[00:03:51] Speaker 03:
But merely knowing that something might be happening is not enough for inducement, right?

[00:03:57] Speaker 00:
Of course, Your Honor.

[00:03:57] Speaker 00:
We understand that there has to be the active steps.

[00:04:00] Speaker 00:
So you're right, Your Honor.

[00:04:01] Speaker 00:
It has to be more than knowledge.

[00:04:03] Speaker 00:
But we look to other facts that are in the record, Your Honor.

[00:04:05] Speaker 03:
What other facts other than that's the quirk of Swedish law that you cite to?

[00:04:12] Speaker 03:
Because what I see is everything

[00:04:15] Speaker 03:
pointing the other way.

[00:04:16] Speaker 03:
I mean, IVP's own personnel said it was their decision and their decision only.

[00:04:22] Speaker 00:
Right.

[00:04:23] Speaker 00:
Respectfully, Your Honor, our position on that is that that declaration should not have been submitted because it was basically, that was a surprise witness.

[00:04:31] Speaker 00:
The first time we had ever heard that was in connection with the summary judgment motion.

[00:04:35] Speaker 04:
You were allowed to take a deposition of that witness, Mr. Saney, right?

[00:04:40] Speaker 00:
we were not actually what we were offered was a deposition after the summary judgment motion was filed limited limited in time limited in scope and from our perspective we wanted to be able to get the full amount of time that we're allowed in the federal rules and we also want to ask that witness any question that we wanted versus it being sort of limited in time and scope after the summary judgment motion was filed and from the federal rules of civil procedure perspective i mean from our to get that sort of

[00:05:07] Speaker 00:
at the time of summary judgment, when the case had been pending since 2016, and there was no disclosure of Indorama, Indorama Adventures Poland, of this witness, other than documents.

[00:05:18] Speaker 03:
But wait, the court specifically addressed that and said, what do you mean there's no disclosure?

[00:05:21] Speaker 03:
I mean, you knew who he was.

[00:05:24] Speaker 03:
You knew all the details about the corporate structure.

[00:05:28] Speaker 03:
You knew what

[00:05:30] Speaker 03:
what role he played.

[00:05:31] Speaker 03:
And so that's why the court said we should have deposed him earlier, but I'll still let you depose him, but just to a limited extent.

[00:05:38] Speaker 00:
So the court said there was an offer made by Polymetrics after the summary judgment motion was filed, after we brought to the court's attention that they failed to identify this person, the company, and the related companies in their initial disclosures.

[00:05:50] Speaker 00:
It was at that point that the deposition was offered.

[00:05:54] Speaker 00:
But again, it was offered for a very limited amount of time.

[00:05:57] Speaker 03:
I was also offered for a very limited scope in terms of the... But didn't the district court make specific findings that there was plenty in discovery even before that point in time that would have indicated to you what this person's role was?

[00:06:12] Speaker 00:
What the person's role was?

[00:06:13] Speaker 00:
I would concede that... And who the person is.

[00:06:16] Speaker 00:
what their name was and what their title was, yes, Your Honor, but the specific evidence that was put forth in this declaration with respect to the importation of Mr. Gosanianis, none of that was in the documents.

[00:06:28] Speaker 00:
The first time we had ever learned about this particular importation was in the declaration of Mr. Sinai.

[00:06:36] Speaker 00:
It was an explosive declaration to come.

[00:06:38] Speaker 00:
And I think my friend on the other side would admit that they didn't even become aware of it until shortly before they filed the summary judgment motion.

[00:06:46] Speaker 00:
Our position is that at some point they should have amended their initial disclosures to at least give us notice.

[00:06:53] Speaker 00:
We had no notice until the summary judgment motion was filed.

[00:06:57] Speaker 00:
And again, this is four years after the case was brought.

[00:07:02] Speaker 04:
What do you think that you would have gained by having the deposition earlier?

[00:07:08] Speaker 04:
You knew what his position was.

[00:07:09] Speaker 04:
You were able to take a deposition on the specific points at issue in the summary judgment motion.

[00:07:14] Speaker 04:
What would benefit would you have had by deposing him earlier?

[00:07:19] Speaker 00:
Well, the benefit would be to cross-examine the witness.

[00:07:21] Speaker 00:
We never got that opportunity, ultimately, to find out, to test his credibility, to test sort of the statements that he was making about not having... What do you mean, I don't understand.

[00:07:31] Speaker 04:
You took his deposition and now you're saying that you didn't have the opportunity to cross-examine.

[00:07:35] Speaker 00:
I apologize.

[00:07:36] Speaker 00:
I might have misunderstood your question.

[00:07:37] Speaker 00:
We never got the opportunity to depose Mr. Sinai.

[00:07:42] Speaker 00:
So you asked me, we did not depose him.

[00:07:45] Speaker 00:
There's a couple of names that may be confusing.

[00:07:46] Speaker 00:
There's a Mr. Owasy that is the alphabet representative.

[00:07:50] Speaker 00:
That's the U.S.

[00:07:51] Speaker 00:
Indorama.

[00:07:52] Speaker 03:
But there was an offer to allow you to do that.

[00:07:54] Speaker 00:
There was an offer for Mr. Sinai, who was part of the Polish entity.

[00:07:58] Speaker 00:
But again, that was given late in the game after the summary judgment motion.

[00:08:01] Speaker 00:
But you didn't take him up on the offer.

[00:08:03] Speaker 00:
We did not take them up because we did not think it was fair to limit us in time and scope with respect to that deposition.

[00:08:08] Speaker 00:
We wanted to have a full and fair opportunity.

[00:08:10] Speaker 03:
So who limited you in time and scope?

[00:08:12] Speaker 00:
The offer that was made.

[00:08:13] Speaker 03:
The offer did.

[00:08:13] Speaker 03:
Why didn't you go to the court and say, under the rules, we need more discovery before we can respond to the summer judgment motion?

[00:08:22] Speaker 03:
There is a provision for that.

[00:08:23] Speaker 00:
I mean, from our perspective, given when it happened, we also thought it would undermine our motion to strike as well because of the federal rules argument that we had made.

[00:08:32] Speaker 00:
So ultimately the decision was a decision that we thought we should get the full and fair opportunity to depose him and have be unlimited in terms of the scope which we could depose him.

[00:08:42] Speaker 03:
You didn't ask for a full and fair opportunity to pose him.

[00:08:44] Speaker 03:
You just said, we're going to make the strategic decision not to depose him because we want to strike.

[00:08:52] Speaker 00:
We just felt like that the rules dictated that the declaration should be stricken because the rules are fairly clear that you must identify one that you're going to rely on.

[00:09:01] Speaker 03:
It's still a discretionary decision that the district court made in part based on the fact that there was an offer to depose it.

[00:09:12] Speaker 00:
There was definitely an offer to depose him, and it is discretionary, Your Honor, but we feel like it was an abuse of discretion as it relates to the fact that they failed to identify this person and their initial disclosures.

[00:09:23] Speaker 00:
And our view is that it's an automatic sanction under Rule 37.

[00:09:27] Speaker 00:
If you fail to do that, that that person cannot be utilized in a summary judgment motion unless it's established that it was substantially justified

[00:09:36] Speaker 00:
are harmless.

[00:09:37] Speaker 00:
And here, in our perspective, it was neither.

[00:09:39] Speaker 00:
Because referencing the fact that he was in the documents, there's cases from the 8th Circuit that we cited in our brief that say that that's just not good enough.

[00:09:46] Speaker 03:
Yeah, but he wasn't just buried in the documents.

[00:09:48] Speaker 03:
The cases that you cited where there's somebody buried in all kinds of documents that he's hardly ever mentioned.

[00:09:54] Speaker 03:
I mean, this is the person who received the test results from AlphaPet.

[00:09:59] Speaker 03:
And those documents were

[00:10:02] Speaker 03:
We're disclosed.

[00:10:02] Speaker 03:
I mean, there were 1,300 documents, right, that were his name accused?

[00:10:06] Speaker 00:
Yes.

[00:10:07] Speaker 00:
I apologize.

[00:10:08] Speaker 00:
I didn't mean to interrupt you.

[00:10:08] Speaker 03:
But I mean, forget all the others.

[00:10:10] Speaker 03:
What about the email?

[00:10:12] Speaker 00:
The email just said, here's test results.

[00:10:16] Speaker 00:
And here's a graph.

[00:10:17] Speaker 00:
It didn't say anything else.

[00:10:18] Speaker 00:
It was a very cryptic email that was sent to Mr. Sinai.

[00:10:22] Speaker 00:
And it said that there was results that we're sending you.

[00:10:25] Speaker 00:
But it didn't confirm the fact that that could have been for PET that had nothing to do with the revamp of the plan.

[00:10:33] Speaker 00:
So again, that email alone, we don't think was enough to give us that type of notice.

[00:10:37] Speaker 00:
When you compare what's in the declaration

[00:10:39] Speaker 00:
This declaration was cited in Polymetric's brief 84 times.

[00:10:44] Speaker 00:
It was a primary piece of evidence that the court used to grant summary judgment.

[00:10:49] Speaker 00:
And this person was not disclosed to us until they filed the summary judgment.

[00:10:52] Speaker 00:
But it's the classic trial by ambush here of summary judgment.

[00:10:57] Speaker 03:
Can I go back to the email?

[00:10:58] Speaker 03:
You said it doesn't even say what it's about.

[00:11:00] Speaker 03:
It's identified.

[00:11:01] Speaker 03:
It says it's pet from Poland, right?

[00:11:05] Speaker 00:
It's, I think, exact language, you're on right.

[00:11:07] Speaker 00:
I have to find it, but I believe it said, pull and test results.

[00:11:10] Speaker 00:
I think that's what it said, you're on.

[00:11:11] Speaker 00:
I paused off, I didn't get that exactly right, but I believe that's what it said.

[00:11:15] Speaker 01:
Okay.

[00:11:16] Speaker 00:
So exactly.

[00:11:17] Speaker 00:
So just because it said poll and test results doesn't mean that it was for in this commissioning period time and doesn't mean that it was actually the product that was made with the accused process.

[00:11:28] Speaker 00:
It could have been before.

[00:11:29] Speaker 00:
It could have been from a different area.

[00:11:32] Speaker 00:
And ultimately that's important because the record reflects that there was

[00:11:35] Speaker 00:
PET that was sent to the United States right before that commissioning period time.

[00:11:41] Speaker 00:
So from our perspective, we didn't know for sure that this was relevant to the argument that we wanted to make.

[00:11:48] Speaker 03:
Isn't that what discovery is all about?

[00:11:52] Speaker 00:
shorter and that is what this is about but the discoveries also about following the rules from appellants perspective in terms of identifying witnesses in your initial disclosures in doing it and timely way or at least supplementing them before you bring a motion for summary judgment where you go to trial uh... connected let's i know you want to move off of this but let me just isn't it also true that you asked questions about

[00:12:21] Speaker 03:
Mr. Sinai, in the other depositions that were taken before summary judgment?

[00:12:27] Speaker 00:
We asked questions about documents that were illegible, and the witnesses did their best to answer them.

[00:12:34] Speaker 00:
But the ultimate question about Mr. Gosain's importation of the sample into the United States, that was not disclosed until Mr. Sinai's declaration.

[00:12:44] Speaker 00:
It was not in the documents, and there was no way that we could have discerned that.

[00:12:47] Speaker 00:
In fact, Mr. Awoski, the alphabets witness, actually admitted that there was no way that we could have figured that out until you saw the Sinai declaration with summary judgment.

[00:12:57] Speaker 00:
And Polymetrix, my friends on the other side, has also admitted that there's no way that they could have figured that out until they spoke to Sinai as well.

[00:13:05] Speaker 00:
In other words, they didn't find out about this fact until they were preparing their summary judgment motion on August 24.

[00:13:11] Speaker 00:
That's in the record.

[00:13:12] Speaker 00:
And ultimately, from our perspective, that's just too late, and that should have been disclosed earlier.

[00:13:19] Speaker 00:
If I may, Your Honor, there is other evidence in the record that shows the causation beyond this, including the fact that the polymetrics was advertising and promoting that this Equistior process was FDA approved.

[00:13:30] Speaker 00:
From our perspective, that's a significant fact from causation.

[00:13:35] Speaker 00:
Also, there was an offer for sale that polymetrics made to Alphabet in the United States in 2013.

[00:13:40] Speaker 00:
From our perspective, a reasonable juror could look at all of this evidence

[00:13:45] Speaker 00:
and in the circumstantial evidence and say, yeah, they felt like they were free to be able to import this into the United States because Polymetrix was promoting FDA approval.

[00:13:55] Speaker 00:
Polymetrix had previously made an offer to sale to them in 2013 of the same technology, but they didn't accept that offer for sale.

[00:14:04] Speaker 00:
But ultimately, those we think are all circumstantial facts.

[00:14:06] Speaker 00:
that would lead a reasonable juror to conclude that Polymetrix wanted that PET to go to the United States so that they could fulfill the contract and get paid.

[00:14:18] Speaker 00:
We think that's a very reasonable theory to present to the jury, ultimately.

[00:14:22] Speaker 00:
And it's certainly in line with its court's most recent ruling in the Glaxo case and other cases that show that circumstantial evidence can be used to prove induced infringement.

[00:14:33] Speaker 00:
Your Honor, with respect to the 602 issue, we think that's also a very important issue in this case, as it relates to a third party.

[00:14:40] Speaker 00:
Mr. Awasti, who is the alphabet 30b6, he admitted that this PET was sent to the United States for polymetrics, and ultimately that those test results were given

[00:14:54] Speaker 00:
uh... to politics this is this is the uh... testimony that was excluded because he did not have personal knowledge that's correct your honor that was that that was the court's decision and from our perspective uh... because he was a thirty six witness that that the court's understanding of this happened was was permitted that the the real question is that it's only under thirty b six it's only if it's an adverse parties

[00:15:18] Speaker 04:
testimony that it would be admitted with a lack of personal knowledge, right?

[00:15:26] Speaker 04:
Because the corporate knowledge here, it's not an adverse party.

[00:15:31] Speaker 04:
So what's the basis for saying that it should have been admitted?

[00:15:35] Speaker 00:
is that what he was testifying on was the corporate knowledge.

[00:15:38] Speaker 00:
I think that the crux of the issue is why.

[00:15:43] Speaker 00:
Why was that PET brought?

[00:15:45] Speaker 00:
That's really what Polymetrix pointed to.

[00:15:46] Speaker 00:
That's what the court pointed to.

[00:15:48] Speaker 00:
We couldn't tell why, and he didn't know why.

[00:15:51] Speaker 00:
But from our perspective, the why doesn't matter.

[00:15:53] Speaker 00:
He was saying from the corporate perspective,

[00:15:59] Speaker 00:
his testimony, the corporate understanding, Your Honor, was that this PET was brought into the United States, and ultimately the test results were given to Polymetrix.

[00:16:07] Speaker 00:
And from our perspective, that is a key admission because, again, it goes to our circumstantial case that affirmative steps were taken to induce them to infringe

[00:16:18] Speaker 00:
And ultimately, we're talking about a summary judgment standard here.

[00:16:21] Speaker 00:
All of these facts that we're talking about that Judge Mallory had raised the question on, all these have to be viewed in a light most favorable to DAC.

[00:16:28] Speaker 00:
That's what my client said.

[00:16:29] Speaker 04:
It's not setting that aside.

[00:16:31] Speaker 04:
I understand what you're saying, but it's an evidentiary issue.

[00:16:35] Speaker 04:
So we're not going to look at, start weighing the testimony before we decide

[00:16:42] Speaker 04:
whether there was an abuse of discretion on the evidentiary issue, right?

[00:16:46] Speaker 00:
I didn't mean to mix the issues together, Your Honor, but they are sort of interrelated in terms of you have to look at all these facts.

[00:16:52] Speaker 00:
Back on the 602 issue, I agree with you completely.

[00:16:54] Speaker 00:
That is an evidentiary issue.

[00:16:55] Speaker 00:
That is something that is abuse of discretion.

[00:16:59] Speaker 00:
But what I'm saying is that

[00:17:00] Speaker 00:
if that testimony comes in, then it goes into the bucket of other testimony that's all sort of considered together under the court's de novo standard for purposes of looking at whether the grant summary judgment was proper or not.

[00:17:13] Speaker 01:
So I'm going to stop.

[00:17:14] Speaker 01:
You've exceeded your time, including rebuttal time.

[00:17:18] Speaker 01:
But let's hear from the other side, and we'll give you three minutes of rebuttal time.

[00:17:22] Speaker 00:
Thank you, Your Honor.

[00:17:22] Speaker 00:
I very much appreciate that.

[00:17:33] Speaker 02:
And your honor, may please the court.

[00:17:37] Speaker 02:
I must first start off by saying that this is the first time I heard the FDA and offer for sale argument.

[00:17:45] Speaker 02:
The appellant did not make that argument in its briefing, nor did they make that on summary judgment.

[00:17:52] Speaker 03:
I was missing something, because I didn't see it.

[00:17:55] Speaker 02:
That's a new argument for me, and Polymetrics has not had the opportunity to respond to that.

[00:18:03] Speaker 02:
With respect to the Saini Declaration,

[00:18:08] Speaker 02:
Under rule, the federal, excuse me, the district court found that polymetrics did not violate rule 26.

[00:18:16] Speaker 02:
Rule 26 requires a party to supplement their initial disclosures if that information was not otherwise made known during discovery.

[00:18:25] Speaker 03:
But once you realized that you were going to go so far with this witness that you were going to actually put in an affidavit, why didn't you just send a letter supplementing your rule 26 disclosures at that point while you were still

[00:18:38] Speaker 03:
going on and preparing your papers for summer judgment.

[00:18:42] Speaker 02:
Your Honor, because of the Rule 26E standard and that Mr. Saini was made known during discovery, as the district court found... But what's wrong with belt and suspenders?

[00:18:52] Speaker 03:
Because the district court could have found against you.

[00:18:54] Speaker 02:
Correct.

[00:18:55] Speaker 02:
As a matter of fact, we did supplement our initial disclosures because, understand the context here, there were cross-motion for summary judgment.

[00:19:02] Speaker 02:
So they filed a cross-motion for summary judgment, and before we submitted a second declaration of Mr. Saini, after we updated the initial disclosures and offered Mr. Saini for deposition,

[00:19:14] Speaker 02:
Um, so we, we did supplement that before we filed Saini's, uh, declaration in connection with our opposition to their- And before you filed his second declaration and you realized what their objection was, then you put him on the World 26.

[00:19:30] Speaker 02:
Correct.

[00:19:31] Speaker 02:
Um, again, as Judge O'Malley said, it's belt and suspenders, but we didn't feel we had- Why didn't you do it earlier?

[00:19:36] Speaker 04:
Why didn't you do it earlier?

[00:19:38] Speaker 02:
because we were just following the Federal Rules of Civil Procedure, Rule 26S, that if he was otherwise made known in discovery.

[00:19:45] Speaker 02:
And the principal piece of evidence that he had as of August 2019 was the August 7, 2014, alphabet email, which was addressed to Mr. Saini.

[00:19:56] Speaker 02:
And the subject was polling sample results.

[00:20:00] Speaker 02:
The only information that they didn't have concerning that piece of evidence

[00:20:06] Speaker 02:
was the fact that it related to commissioning period pet.

[00:20:10] Speaker 02:
But on July 22nd of 2020, they took the deposition of Mr. Wasti from Alpha Pet.

[00:20:17] Speaker 02:
And they claim in their brief, page 50 of their opening brief and page 31, that this was critical new evidence, that they finally learned that that memo, that report, that email had to do with commissioning period pet.

[00:20:31] Speaker 04:
Mr. Saini was a third party?

[00:20:33] Speaker 04:
That's right.

[00:20:33] Speaker 04:
That's correct.

[00:20:34] Speaker 04:
I mean, how would they know that you're going to rely on this third party witness?

[00:20:38] Speaker 04:
It's not even your own.

[00:20:39] Speaker 04:
I could see if it was your own employee, then maybe, you know, 26 would be satisfied.

[00:20:45] Speaker 04:
But Mr. Saini was a third party.

[00:20:47] Speaker 04:
How would they know you were going to rely on him?

[00:20:50] Speaker 02:
They didn't know that we were going to rely on it, but that's not the requirement.

[00:20:54] Speaker 02:
The requirement is whether this witness was made known in discovery.

[00:21:00] Speaker 02:
And there can be, as the district court found, GP DAAC simply cannot contend, credibly contend, that Saini's identity and significance had not been made known to them during discovery.

[00:21:12] Speaker 02:
And that's it.

[00:21:12] Speaker 03:
So you both made some strategic decisions that

[00:21:16] Speaker 03:
may or may not have been correct.

[00:21:18] Speaker 03:
So you made a strategic decision not to supplement your Rule 26 disclosures, but you knew that it was a risky decision, and that's why you offered a deposition.

[00:21:28] Speaker 03:
Right?

[00:21:29] Speaker 02:
Well, we were giving them the opportunity to, we didn't realize it was a risky proposition in terms of identifying a prior witness, but we were just giving them a fair opportunity to take Mr. Saini's... Well, why would you do that if you didn't think it was risky?

[00:21:44] Speaker 03:
Why didn't you just say, hey, discovery closed.

[00:21:46] Speaker 03:
You saw his name in there.

[00:21:47] Speaker 03:
You could have taken his deposition.

[00:21:50] Speaker 02:
just so they could round out their evidentiary base for the purposes of responding to the summary judgment motion.

[00:21:57] Speaker 01:
Council, would you address the question of inducement by polymetrics?

[00:22:03] Speaker 01:
What they did and what they knew?

[00:22:06] Speaker 02:
Sure, Your Honor.

[00:22:08] Speaker 02:
Polymetrics did not induce

[00:22:11] Speaker 02:
IVP to send any samples to the United States.

[00:22:13] Speaker 02:
There was no evidence in the record, and the district court found that, there was no evidence in the record that Polymetrics directed IVP to send any of the samples to the United States.

[00:22:24] Speaker 02:
Polymetrics submitted the declarations of four witnesses from Polymetrics, including the CEO, Mr. Mueller,

[00:22:33] Speaker 02:
the director of research and development, Mr. Crystal, head of sales, Mr. Polyalkov, and the project manager, Mr. Von Tobol.

[00:22:45] Speaker 02:
And all of those witnesses said they had no knowledge of the samples that IVP sent to the United States.

[00:22:53] Speaker 02:
And Saini said that that decision was his and his alone, and that was unrebutted.

[00:22:58] Speaker 02:
Because of that evidence, GPDDAC had to create some theories for causation because the principal issue at the district court was causation, the issue of causation.

[00:23:12] Speaker 02:
And that's an essential element of their claim on which they have the burden of proof.

[00:23:15] Speaker 02:
And the district court found that they didn't provide sufficient evidence.

[00:23:19] Speaker 02:
Their theories of causation were causation by contract and the court found that the contract did not require IVP to send samples to the United States.

[00:23:29] Speaker 01:
Of course, this is on summary judgment.

[00:23:32] Speaker 01:
I'm sorry?

[00:23:32] Speaker 01:
This is on summary judgment.

[00:23:34] Speaker 01:
Correct.

[00:23:35] Speaker 02:
No genuine issues at all.

[00:23:37] Speaker 02:
No, and there is not, Your Honor, because the standard for summary judgment is whether there's a genuine issue of material fact.

[00:23:44] Speaker 02:
And the word genuine is important here.

[00:23:47] Speaker 02:
And an issue is genuine if there's sufficient evidence for a jury to find in favor of the non-movement.

[00:23:55] Speaker 02:
And the district court found that their evidence was insufficient to rise to that level.

[00:23:59] Speaker 04:
What about the ratification theory?

[00:24:02] Speaker 04:
That is, that there was some similarity between

[00:24:05] Speaker 04:
the testing done in the United States on the product that was imported to the United States and the test results that polymetrics had, I think, this ratification idea that something that occurred after the fact shows that somehow they were involved in encouraging that importation.

[00:24:26] Speaker 04:
Are you aware of any cases where something, evidence of ratification

[00:24:32] Speaker 04:
can be used because it's after the fact for inducement?

[00:24:37] Speaker 02:
I'm only aware of the one case that they cited and I don't have that citation.

[00:24:43] Speaker 02:
In that case, there was evidence of inducement and knowledge of the infringing acts of

[00:24:51] Speaker 02:
and then there was ratification thereafter.

[00:24:54] Speaker 02:
There's no evidence that Polymetrix ratified the testing by incorporating that data into their May 28, 2015 report.

[00:25:05] Speaker 02:
The only evidence they submitted in support of that

[00:25:08] Speaker 02:
was the declaration of their expert, Dr. Sheraldi, who drew an imprecise line representing what he believed to be July 23, 2014 data.

[00:25:20] Speaker 02:
And the court found that to be insufficient evidence, because he said it matched almost exactly.

[00:25:25] Speaker 02:
And for scientific measurements, saying that the data from the alphabet email was contained in the May 28, 2015 report,

[00:25:34] Speaker 02:
that such imprecise terms is insufficient to go to the jury.

[00:25:37] Speaker 02:
The jury would be required to speculate as to whether that figure 4.4 in the May 28, 2015 report actually included that data.

[00:25:47] Speaker 02:
The other piece of evidence that they relied on was this alleged admission by Mr. Mueller, where he said that he was being deposed on the two documents, the May 28,

[00:25:57] Speaker 02:
2015 report and the Alphabet 2014 email.

[00:26:01] Speaker 02:
He testified in the prior 29 pages that they didn't refer.

[00:26:05] Speaker 02:
They took one question, one answer out of 29 pages of testimony where it was kind of vague as to what document he was referring to.

[00:26:13] Speaker 02:
But he clearly testified in the preceding pages that he never saw on page 11953

[00:26:26] Speaker 02:
He said, in response to the Alphapet data, he said, that's something I see for the first time, so I don't know about the background.

[00:26:35] Speaker 02:
With respect to the May 28 report, he says, I recognize the document, but I've not seen it before.

[00:26:48] Speaker 02:
And further, the testimony that they're relying on, where Mr. Mueller made this alleged admission, is on 119977 of the appendix.

[00:27:02] Speaker 02:
But when you look earlier in his testimony, and then it said 11972,

[00:27:11] Speaker 02:
Mr. Mueller said, I think I have the wrong page there with me.

[00:27:15] Speaker 02:
Oh, I'm sorry.

[00:27:16] Speaker 02:
It's not the right accurate site.

[00:27:18] Speaker 02:
It's 11963.

[00:27:21] Speaker 02:
When asking about the exhibit seven, which was the alphabet email, he said, I cannot confirm.

[00:27:30] Speaker 02:
I don't know whether they are identical samples or not.

[00:27:33] Speaker 02:
The results in both documents are close to each other.

[00:27:36] Speaker 02:
But I have no idea whether it's the sample.

[00:27:38] Speaker 02:
It's the same measurement.

[00:27:41] Speaker 02:
GP DAAC would have this court believe that during the deposition, Mr. Mueller was able to identify on that figure of 4.1 of the May 28, 2015 report, which is found at 7711 of the appendix, and was able to identify the specific data from July 23 at 3 PM on that graph.

[00:28:06] Speaker 02:
And when you look at that graph, you can see that it's

[00:28:09] Speaker 02:
all these data points, hundreds of data points that kind of merged together.

[00:28:13] Speaker 02:
And the irony here is that their own expert, who was paid to find the data from the AlphaPet email in the May 28, 2015 report, couldn't find it.

[00:28:25] Speaker 02:
He concluded that it matched almost exactly.

[00:28:28] Speaker 02:
So they expect this court to believe that Mr. Neuer admitted during his deposition that that data from the Alpha report was contained in the

[00:28:37] Speaker 02:
May 28th report.

[00:28:39] Speaker 02:
So there's just no evidence of record that polymetrics ratified and used that data.

[00:28:45] Speaker 02:
In fact, the court found the evidence to be to the contrary.

[00:28:50] Speaker 02:
The district court relied on a declaration from Mr. Crystal who said polymetrics never received the data.

[00:28:56] Speaker 02:
Mr. Mueller also testified that these measurements during the commissioning period are daily measurements and that they have to be done on site.

[00:29:04] Speaker 02:
It makes no sense to send it across the Atlantic during a commissioning period to test these results during a commissioning.

[00:29:13] Speaker 02:
In the end, the district court found that GPT-DAC circumstantial evidence

[00:29:19] Speaker 02:
of causation was so weak that the jury would be required to speculate.

[00:29:25] Speaker 02:
And therefore, the court found that there was insufficient evidence on causation to submit to the jury, and she granted summary judgment in favor of polymetrics and polymetrics requested.

[00:29:37] Speaker 03:
Can you enlighten me on the things that I asked about in the very beginning?

[00:29:42] Speaker 03:
What is the relationship now between these two players?

[00:29:45] Speaker 03:
Why go after polymetrics for things that it appears

[00:29:50] Speaker 03:
that IVP might have done?

[00:29:53] Speaker 02:
Your Honor, I've been asking that question for five years and I still don't know the answer and I don't know if I'll ever have the answer to that.

[00:29:59] Speaker 02:
We're fighting over 289 kilograms of PET that were sent from IVP to the United States for testing that had nothing to do with the plant.

[00:30:08] Speaker 02:
It had to do with inter-laboratory cross-tacking.

[00:30:11] Speaker 02:
It had to do with

[00:30:12] Speaker 02:
running samples on an Arberg machine, which is a packaging machine, a preform machine, had nothing to do with the plant.

[00:30:19] Speaker 03:
Are either Polymetrix or IVP importing any of this into the United States?

[00:30:24] Speaker 02:
No, they're not, Your Honor.

[00:30:25] Speaker 02:
And first of all, PolyMetrics doesn't import.

[00:30:27] Speaker 02:
They're an engineering company that builds these plants for their customers, such as Indorama.

[00:30:31] Speaker 02:
Indorama is in the business of manufacturing PET, and there is zero evidence that IVP imported any commercial pet.

[00:30:40] Speaker 02:
There is no dispute that IVP sent 289

[00:30:45] Speaker 02:
kilograms over a four-year period for testing.

[00:30:50] Speaker 02:
In particular, as you noted at the beginning, the commissioning period paid, I think, was 27 kilograms, a street value of about $49.

[00:30:59] Speaker 02:
And I understand the issue from GPD DAC's perspective is one of an injunction

[00:31:05] Speaker 02:
But polymersures are not involved with IVP.

[00:31:09] Speaker 02:
So even if there was injunctive relief, there's no injunctive relief against polymersures.

[00:31:14] Speaker 02:
They're not involved with the company.

[00:31:15] Speaker 02:
They built the plant, gave them the keys to the plant, and Indorama's on their own.

[00:31:21] Speaker 02:
So I can't answer that question, Your Honor.

[00:31:24] Speaker 02:
I wish I could.

[00:31:27] Speaker 02:
Thank you very much.

[00:31:28] Speaker 01:
Thank you, Counsel.

[00:31:31] Speaker 01:
Mr. Schwab has three minutes if you need them.

[00:31:40] Speaker 00:
Thank you, Your Honor, very much.

[00:31:41] Speaker 03:
Do you agree with my reading of the briefs and with what your friend on the other side said, as you've never even mentioned, FDA or any relationship between polymetrics and the FDA at anywhere?

[00:31:54] Speaker 00:
No, Your Honor, we respectfully disagree.

[00:31:56] Speaker 00:
And we would point the court to our summary judgment motion, which is at appendix 6-330 and 3-1, where we reference the FDA issue.

[00:32:06] Speaker 03:
It's not in your briefs to us, though, right?

[00:32:09] Speaker 00:
No, Your Honor, but it's part of our submission below on the summary judgment brief that we made, our affirmative summary judgment brief.

[00:32:15] Speaker 00:
We made that when we were... Tell me what pages?

[00:32:16] Speaker 00:
6, 3, 3, 0, and 31, and then again also at 6, 3, 6, 1, through 63.

[00:32:28] Speaker 00:
And I can only offer for sale, Your Honor.

[00:32:30] Speaker 00:
That was mentioned at another place.

[00:32:32] Speaker 00:
If I could, for the record, just note that it's at Appendix 396.

[00:32:36] Speaker 00:
So both of those issues are part of the record, Your Honor.

[00:32:40] Speaker 00:
I just wanted to hit a couple of issues really quickly, if I could, which was the reference, again, of the question about the value of this case.

[00:32:45] Speaker 00:
I would refer the court to the MBMC v. Mitsubishi case, which is a Judge Shaw opinion from the Federal Circuit from 2005, where this similar issue came up, where there was zero damages.

[00:32:56] Speaker 00:
But the court sort of ignored that ultimately and still went ahead with the case because of the nature of that case, which is very similar to our case on multiple issues.

[00:33:05] Speaker 00:
So I wanted to point that out for the court.

[00:33:08] Speaker 00:
Then another issue that I think that is very important to just hit very quickly, Your Honor, is with respect to that email that you referenced again, the one that was written to Mr. Sinai from Alphabet.

[00:33:17] Speaker 00:
Again, it's an appendix 12599 through 600.

[00:33:21] Speaker 00:
If you look at that email closely, and I'm sure Your Honors have, there's nothing in that email about importation, nothing.

[00:33:27] Speaker 00:
There's no way anyone could discern that something was imported just based on the face of that email.

[00:33:33] Speaker 00:
So we wanted to put that in the record as well.

[00:33:36] Speaker 00:
You mentioned discovery, Your Honor.

[00:33:37] Speaker 00:
there was still six months left on discovery when the summary judgment motion was filed.

[00:33:42] Speaker 00:
So discovery had not closed.

[00:33:44] Speaker 00:
We had not an opportunity to even finish discovery before the motion was granted.

[00:33:50] Speaker 00:
With respect to the question about ratification cases, Judge Stoll, I just wanted to point your attention to some cases that we have cited.

[00:33:57] Speaker 00:
There's the Bennett Marine case and there's the Powerless cases, which both reference the fact

[00:34:01] Speaker 00:
that ratification can serve as a basis for induced infringement.

[00:34:05] Speaker 00:
So I just wanted to point that out to you, Your Honor, that's in our briefs, just so you're aware of those cases.

[00:34:09] Speaker 00:
And the last issue, Your Honor, I think that's really significant on the 602 issue with Mr. Alwasti.

[00:34:14] Speaker 00:
When you look at the question and answer, it's repeated in our page 24 of our opening brief.

[00:34:20] Speaker 00:
It's very clear that no objection was made by Polymetrics Council

[00:34:24] Speaker 00:
or Alphabet's counsel at that deposition.

[00:34:27] Speaker 00:
And under Rule 32, Delta 3 Bravo, you don't make an objection.

[00:34:31] Speaker 00:
It's waived.

[00:34:32] Speaker 00:
So they never made that 602 objection.

[00:34:34] Speaker 00:
They didn't even have it in their summary judgment briefing.

[00:34:36] Speaker 00:
It was raised after when they were doing supplemental briefing for summary judgment, and that ends up being one of the main bases

[00:34:42] Speaker 00:
of the court excluding that testimony under 602.

[00:34:47] Speaker 00:
They never made an objection at the deposition, and it was not even in their summary judgment briefing.

[00:34:51] Speaker 00:
And the only reason we sort of preserved the issue is because we told the court, hey, we never got a chance to address the 602 issue that was raised late.

[00:34:59] Speaker 00:
We just want to say for the record, here's our arguments about why it's 30 v 6, and here's why ultimately we think it should have been admissible.

[00:35:07] Speaker 00:
But we never got an opportunity to brief that.

[00:35:08] Speaker 00:
Again, it was sort of sandbagged with that 602 argument after the fact.

[00:35:13] Speaker 00:
So we wanted to point out those issues for your honors.

[00:35:17] Speaker 00:
And with that, I think, your honors, we will submit the case for briefing.

[00:35:22] Speaker 00:
I really appreciate your time.

[00:35:23] Speaker 01:
Thank you, gentlemen.

[00:35:24] Speaker 01:
We appreciate your arguments.

[00:35:26] Speaker 01:
The case is submitted.

[00:35:28] Speaker 01:
And that concludes your arguments for today.