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The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and its honorable court.

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Good morning.

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The first argued case this morning is number 20-1475, BioRad Laboratories against the International Trade Commission.

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Mr. Cannon, please proceed.

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May it please the court, Brian Cannon for BioRad.

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Your honors, this case involved three patents owned by Bayerad, all directed to precisely engineered devices performing microfluidic sized droplets in a background fluid.

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These devices are sometimes called chips or cartridges.

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They have wells and tiny channels.

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And these channels are about the size of a human hair.

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And the idea of these patents is you put fluid under pressure to create tiny aqueous droplets

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in oil, and these droplets are tremendously useful in a variety of applications.

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What BIORADS affected in these three patents was making uniform and consistent droplets on the chips, and there are two sets of products at issue from the ITC investigation below, and these are imported and sold by 10X.

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The first are the commercial chips that the ITC found to be infringed, and they are not the subject of

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BioRat's appeal.

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The second set of chips are chips that 10X uses internally to make droplets as part of its manufacturing process.

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And these chips, these are the ones that are the subject of BioRat's appeal.

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They are called the Chip GB.

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And even though the ITC found that 10X's commercial chips infringed, it found no infringement for the Chip GB.

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And BioRat contends this was error, an error of law by the ITC below.

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And that is the subject of our appeal.

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To get directly to the issue, is the question, does everything come down to the definition of sample?

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Is it, there are all sorts of complicated issues that are mentioned by all parties in their briefs, but is that what we should be focusing on?

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Yes, Your Honor, exactly.

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The issue is the definition of sample.

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Because these patents, or this patent, a single patent, the 664 patents, it requires a sample well and one of the channels to carry sample containing fluid.

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And it's this sample containing fluid that becomes the droplet in the background oil.

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And the parties below had an agreed upon claim construction for sample.

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And it's very straightforward.

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And the claim construction is, for sample, a compound composition

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and or mixture of interest from any suitable source.

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And that can be found at appendix site 704, which is the claim construction order.

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And that is a very deliberately broad definition of sample.

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It just has to be basically anything of interest from any suitable source.

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And that is to contrast it with the background fluid, which is the oil in which the droplets are formed.

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And the theory is that it's not a sample of interest

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because it's not going to be analyzed, right?

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Well, what the ITC found, what the ALJ found, which was... That's what the ITC found, right?

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Yes, the ITC found because the fluid used in 10X's manufacturing process was not of interest to an end user customer and was not a biological sample, it was therefore not a sample for purposes of this patent.

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However, the claim construction does not require

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the sample to be of interest to an end user customer doing an experiment in the biological lab.

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The patent is broader than that and the claim construction is broader than that and in fact the specification is broader than that as well.

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So I think Your Honor has nailed the exact issue which is the ITC imported into the claim construction, into the claims, a requirement that

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will be of interest, not just generally of interest, but of interest to a specific person, the end user customer in a biological sciences lab.

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And... I think you have a hard time saying that the claim construction is definitive because it's not entirely clear.

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And so what we have is a situation in which the ITC has sort of interpreted its own claim construction to require that the

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sample be of interest for purposes of analysis?

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And the question is whether that's correct or not correct in the light of the patent and the specification.

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Your Honor, I agree in part with that, but I also disagree respectfully because the claim construction requires the sample to be

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the sample material to be of interest.

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It doesn't specify of interest to whom or in what context, as long as that aqueous fluid is the material of interest to contrast with the background fluid.

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Because remember, it's the aqueous fluid that forms the droplets, and it's the background fluid, the oil, that just serves as the background.

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That's not of interest.

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It's the immiscible fluid that is contrasted with the aqueous fluid.

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The concept in these patents is you have two different types of fluids going through these channels.

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One is aqueous.

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One is oil.

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And so through the intersection of the channels, droplets of aqueous fluid are formed.

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And the sample fluid is the aqueous fluid.

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And it just has to be of interest.

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So I would say that of interest doesn't specify of interest to whom.

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It just has to be the subject matter of what's getting run, what becomes the droplet.

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But to get to your second point, if you do actually look at the specification, because the claim construction is derived directly from the specification, that's appendix site 454, which is the 664 pen.

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It comes from column eight, lines 36 to 38.

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The agreed upon claim construction is simply how the word sample is defined in the specification.

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And the examples that are given are tremendously broad of what can constitute a sample.

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I would argue that even though examples and a specification are not limiting, just the breadth of the examples of what a sample could be demonstrate that the term sample or the term of interest, which is what the sample is supposed to be, can be anything.

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It can be foodstuffs, weapons, components, bio-defense samples.

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There's all kinds of material, including biological material, that could be the sample.

[00:07:01] Speaker 01:
Well, counsel, this is Judge Laurie.

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Have you ever found a case where a claim has been interpreted or found entrenched or not because of the words of interest?

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Intention usually isn't part of the interpretation of claims of interest.

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Are there any cases construing of interest?

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We don't have a case that focuses on that phrase that we have briefed, but I think of interest is not so much, it's partly of who is interested in this material, but it's also to contrast the fluid that's in the droplets with the fluid that is in the background, the oil fluid that actually creates the droplets.

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So we don't have a case that says here is what of interest means,

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But I think if you look at this claim and you look at the patent, it's directed towards creating these droplets within a background fluid and doesn't specify who actually has to be interested in the sample.

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Someone has to be interested in it.

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And in this case, 10x, as the manufacturer using these chips, 10x is extremely interested in the sample, in the monomer solution that goes into these chips.

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The end user customer may or may not be interested.

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But 10X as a manufacturer of these droplets for its own internal purposes is extremely interested.

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And as we laid out in the brief, 10X does extensive quality control on the material that goes into these droplets.

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And it's of great interest to 10X to have the monomers solution.

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What about column 14 of the patent, line 43, which defines sample containing?

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as meaning the sample material to be analyzed.

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Doesn't that suggest that the sample is to be analyzed for purposes of determining its content, not simply as a part of overall quality control?

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Well, that is certainly one example of a sample containing droplet.

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And it is true that when scientists in labs

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use these droplets, one of the applications is to analyze and analyze such as a cell or a sequence of DNA.

[00:09:24] Speaker 04:
Okay, but isn't this part of the specification inconsistent with the RUV you're making?

[00:09:29] Speaker 00:
I don't believe so, Your Honor.

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I think this is one example of a sample that could be used.

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I mean, certainly a sample could be of interest to a scientist and certainly could be analyzed

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The claim construction is not.

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What's described here is not what you're talking about, right?

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If you took this as a definition of what a sample was, you would lose, right?

[00:09:52] Speaker 00:
I don't believe that we would lose if this example is the definition of sample, but it's not.

[00:10:00] Speaker 04:
Why not?

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Because this example is directed towards analyzing, and I'm looking at column 14, line 45 to 46, contain sample material to be analyzed for the presence of one or more target molecules.

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And that is not what is being done with these CHIP GBs.

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If the definition of sample was to look for one or more target molecules to be analyzed, that is not the application that's being done here with these CHIPs.

[00:10:34] Speaker 00:
Your Honor, my time has expired.

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Was there anything else that you wish to ask me about this?

[00:10:39] Speaker 02:
Let's see if we've completed the exploration, especially the point that you were just making, just to make clear that we understand what the issues are.

[00:10:52] Speaker 02:
You're telling us that using the word sample at that point in column 14 was discussing

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I'll say discussing the use of the chips or AUs, but not limiting the overall structure and design.

[00:11:11] Speaker 00:
That's exactly correct, Your Honor.

[00:11:18] Speaker 02:
OK.

[00:11:19] Speaker 02:
Any questions?

[00:11:20] Speaker 02:
Any more questions at this point for Mr. Cannon?

[00:11:23] Speaker 01:
No.

[00:11:25] Speaker 02:
OK.

[00:11:25] Speaker 02:
Mr. Groombridge, are you next?

[00:11:28] Speaker 05:
I am, Your Honor.

[00:11:30] Speaker 02:
OK, please proceed.

[00:11:32] Speaker 05:
Thank you.

[00:11:33] Speaker 05:
This is Nicholas Groombridge for 10X.

[00:11:36] Speaker 05:
May it please the court?

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I'd like to pick up with the discussion of the CHIP GB and the claim construction issue here.

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And we do agree with Your Honor Judge Newman that this does come down to the definition of sample.

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And it also implicates what does of interest mean.

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And we also agree with what Judge Dyke said pointing to column 14, lines 43 to 50.

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That's an instance of the use of sample.

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And it certainly, in that text, appears to be definitional.

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But the entire set of definitions that appear at columns 9 through 13

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make clear in this case that the sample is something to be analyzed that it may or may not contain an analyte which is something one is looking for, for example a pathogen molecule and that a reagent is something different and the term sample is carefully constructed here in quite elaborately to be the thing that is to be analyzed

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And in that context, then the chip GB is not used in such a fashion that it has no sample well because it's not being used to analyze a sample.

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It doesn't have the other features that are defined in the patent by reference to the term sample.

[00:13:06] Speaker 02:
But is there a distinction in the claim that it must be a reagent which acts on the sample?

[00:13:16] Speaker 05:
I think, Your Honor, that what's in the claim is the use of the word sample.

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And that the patentee here chose to define the architecture by reference, the features here by reference to what would be in them.

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And that therefore leads us to what is a sample.

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And the patent is crystal clear that a sample is something that's going to be analyzed.

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And under that reading, then there can be no infringement because this chip isn't used with samples.

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And so we don't think that it implicates a question of intent to Judge Laurie's question here.

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I think that it's more the objective facts of what it's actually used for.

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But there certainly are some issues around the decision by the patent drafter here to define physical features by reference to what would be in them.

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And so that really sets out our position as far as the Chip GB is concerned.

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I would just say that we disagree that there was any change to the claim construction.

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We certainly disagree that the commission read in either a requirement that something be of interest to an end user or that it be biological.

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It merely cited those as examples, as a testimony

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when in applying the claim construction, it reached the second stage of infringement analysis, the fact stage.

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So there's nothing wrong in any event with the commission elaborating on a claim construction when it addresses infringement, right?

[00:15:02] Speaker 05:
Absolutely, Judge Dyke.

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And to your honest point, we do think that this is one of those situations where the

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There's an express definition which the parties all agreed to, which includes the language of interest.

[00:15:15] Speaker 05:
We then got to the point of, well, what exactly does that mean?

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And I think it's not wrong to say the ITC interpreted its own claim construction, but it did that entirely correctly by reference to these portions of the specification that are definitional and said the specification tells us what a sample is and juxtaposes it with a reagent.

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And this chip is not being used with anything that counts as a sample as defined in the patent.

[00:15:41] Speaker 05:
And with that, unless the court has further questions on this issue, I would like to move on to 10X's appeal and to the question of the proper construction of droplet generation region here.

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And specifically, I'd like to address, first of all, the construction as we see in terms of what we think was wrong

[00:16:11] Speaker 05:
in pure claim construction.

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And secondly, the issue around as I know estoppel and whether the prior art was or was not considered here.

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And so with respect to the construction of droplet generation region, I think first of all, I would like to touch on waiver simply because it has been asserted very vigorously by both BioRad and the commission that there was a waiver here.

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And we, of course, disagree with that.

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And I think it might be useful just to lay out what happened.

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To be clear, the construction that 10X is advocating in this court is the same construction that it advocated before the commission.

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And that construction never changed.

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That construction was set out originally in the joint claim chart.

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It was then incorporated in 10X's briefing on claim construction.

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And it was the subject of, after the initial determination, it was the subject of a request for review by the commission.

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The waiver argument here is based on a sentence in, or the conclusion of waiver and the arguments that are now presented to this court, based on a sentence in 10X's brief at Appendix 1088, but if we look

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just seven pages earlier in that same section of the brief, the proposed construction is laid out there.

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It's the construction that has never changed.

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And that is what we are advocating.

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And thus, in our view, there was never any departure from that.

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And thus, these issues of waiver simply don't arise.

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And with respect to that, the construction that we advocate here is based on the fact that these patents define

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the physical features by virtue of what is in them.

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And when they are talking about features that are defined as sample containing, in our view, what that means in view of the specifications is that the channel, the sample channel, the sample containing channel that arrives at the intersection where the droplets are to be formed

[00:18:21] Speaker 05:
is defined as a channel that is conveying fluid, and it's the same fluid that left the sample well.

[00:18:29] Speaker 04:
So is the theory here that because the sample has been encapsulated by the time it reaches the oil channel that it doesn't comply with the claim limitation?

[00:18:42] Speaker 04:
Is that the idea?

[00:18:43] Speaker 05:
The theory, Your Honor, is that what reaches the

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the point at which droplets are generated is a different fluid, because it has been merged with a second fluid.

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And so what is arriving there is not.

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This is a comprising claim.

[00:19:00] Speaker 04:
So what's wrong with that?

[00:19:01] Speaker 04:
What's wrong with the fact that the second fluid?

[00:19:04] Speaker 05:
It's a comprising claim, but that doesn't mean that the term sample containing can be redefined.

[00:19:13] Speaker 02:
But you're saying it doesn't?

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contain any of the analyte?

[00:19:20] Speaker 02:
You say it's a different fluid?

[00:19:22] Speaker 05:
It's a different fluid, Your Honor, because what has happened in the design that 10x has, it is very carefully engineered to mix two aqueous phases prior to their arriving at the point at which droplets are generated.

[00:19:40] Speaker 02:
And the reason for that is because- But does it contain any of the material to be analyzed?

[00:19:46] Speaker 05:
It certainly does contain the material to be analyzed.

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And that what has happened there is that material.

[00:19:54] Speaker 02:
But why isn't it sample?

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Why isn't it sample containing?

[00:19:57] Speaker 05:
Because in our view, Your Honor, the term sample containing in these patents is defined to mean that which is in the sample well.

[00:20:05] Speaker 05:
And it certainly could be mixed with other reagents before it's put into the sample well.

[00:20:11] Speaker 05:
But these patterns are not talking about any system in which, on the chip, after the sample containing material leaves the well, it is admicked further before it reaches the channel, the intersection of which the droplets are generated.

[00:20:26] Speaker 02:
Well, then it doesn't matter, you say.

[00:20:28] Speaker 05:
Well, I think we say it does matter because the claim terms that define the sample containing and a fair reading of the patents is that that's what is the material that's in the sample well.

[00:20:41] Speaker 05:
And so that what arrives at the intersection must be the same material that left the sample well.

[00:20:49] Speaker 05:
And in our case, it is not.

[00:20:51] Speaker 02:
Well, but you see what the trouble is.

[00:20:54] Speaker 02:
Here, apparently, the same

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procedures are being conducted as are taught in the patent.

[00:21:02] Speaker 02:
But we have this word sample, and we're doing this very elaborate lexicographic or whatever definition of sample removed from, I'll say, the reality of what's in the specification.

[00:21:19] Speaker 02:
Can you put that back on track from your viewpoint?

[00:21:23] Speaker 05:
Well, I will certainly try, Your Honor,

[00:21:26] Speaker 05:
So what we're focusing on is what is the meaning of sample and sample containing in these patterns.

[00:21:34] Speaker 05:
And in our view, what we've decided below was that it can be admixed on the chip simply because sample containing does not exclude that.

[00:21:46] Speaker 05:
We think that that's inconsistent with the way the term is used.

[00:21:51] Speaker 05:
And perhaps in terms of, I'm not sure that this is in the briefing, but the only place that we find in any of these patents that refers to such an admixture is in the 160 patent, not at issue in this appeal.

[00:22:06] Speaker 05:
At the bottom of column 73, where it talks about such a mixture, but it uses a different term.

[00:22:16] Speaker 05:
It doesn't call it sample containing fluid.

[00:22:18] Speaker 05:
It calls it sample reagent mixture fluid.

[00:22:21] Speaker 05:
And in our view, that's indicative of the fact here that what the patents are talking about when they reference sample containing fluid is the material that left the sample well.

[00:22:36] Speaker 05:
It can be admixed with other things before it's put in the sample well, but it can't be admixed once it's on the chip.

[00:22:42] Speaker 04:
But why isn't it a sample containing fluid, even if it's mixed with something else?

[00:22:47] Speaker 04:
I'm not quite following that.

[00:22:49] Speaker 05:
Your Honor, because the only disclosure in these patents and the use of the term sample containing is saying that's what's in the sample well.

[00:23:01] Speaker 05:
That, for example, the very language at column 14, lines 43 to 50, we think a fair reading of that is that you can put other reagents.

[00:23:11] Speaker 05:
For example, you could put PCR primers and enzymes and such like with the sample and then put it in the sample well.

[00:23:18] Speaker 05:
That liquid which is in the sample well is certainly sample containing, even though it has had other things added to it.

[00:23:24] Speaker 05:
What the patents are not allowing here is that mixture on the chip, so that when the liquid leaves the sample well, it's admixt with something before it arrives at the point at which droplets are generated.

[00:23:35] Speaker 02:
So the patents are not allowing that?

[00:23:37] Speaker 02:
Perhaps I didn't read them carefully enough.

[00:23:40] Speaker 02:
Is that explicitly prohibited in the specification?

[00:23:44] Speaker 05:
I think it's...

[00:23:47] Speaker 05:
My time is up.

[00:23:49] Speaker 02:
Please respond.

[00:23:50] Speaker 05:
Certainly continue.

[00:23:51] Speaker 05:
There's no words that I could point to that say we hereby exclude this.

[00:23:59] Speaker 05:
But I think that the usage of the term sample and sample containing are invariably described with respect to the material that was put into the sample well, and that the physical features are described by reference to what's in them.

[00:24:13] Speaker 02:
It must be pure.

[00:24:16] Speaker 02:
Pure analyte with nothing else?

[00:24:19] Speaker 05:
Not pure analyte, not in the least.

[00:24:21] Speaker 05:
But it must be what was placed in the sample well.

[00:24:24] Speaker 05:
That could include other things.

[00:24:26] Speaker 05:
But what it's not allowing, because this isn't disclosed or described or enabled, and it's not how the terms are used, is an architecture in which admixture takes place on the chip.

[00:24:38] Speaker 05:
That is not something that was the subject of these patents.

[00:24:41] Speaker 05:
And that's the core of it.

[00:24:43] Speaker 05:
My time having run out unless there are other questions.

[00:24:46] Speaker 04:
I have one question, Mr. Crombridge, before you sit down.

[00:24:49] Speaker 04:
And that has to do with inducement and contributory infringement.

[00:24:53] Speaker 04:
If we were to reject your position on contributory infringement, does it make any difference whether you're right about induced infringement?

[00:25:08] Speaker 05:
I'm thinking about that.

[00:25:09] Speaker 05:
I think, Your Honor, I mean, there is an intent requirement for both induced infringement and contributory infringement.

[00:25:17] Speaker 05:
And it is under the common law.

[00:25:23] Speaker 05:
Certainly, there is an intent requirement.

[00:25:25] Speaker 05:
Whether the intent requirement is the same may be something of a question.

[00:25:30] Speaker 04:
That's not really my question.

[00:25:32] Speaker 04:
My question is, suppose we say you're

[00:25:35] Speaker 04:
right on induced but wrong on contributory.

[00:25:39] Speaker 04:
Does it make any difference that you were right on induced?

[00:25:45] Speaker 05:
I think it might, Your Honor.

[00:25:47] Speaker 05:
I'd have to sort of tease that through.

[00:25:49] Speaker 05:
But because we're dealing with importation and what happens with the things after they're imported and how they might subsequently be used, I think it might.

[00:25:57] Speaker 05:
OK.

[00:25:58] Speaker 02:
OK.

[00:25:59] Speaker 02:
All right.

[00:25:59] Speaker 02:
Now you have some rebuttal time saved.

[00:26:01] Speaker 02:
All right.

[00:26:01] Speaker 02:
Let's hear from the commission, Mr. Trout.

[00:26:07] Speaker 04:
Thank you, Your Honor.

[00:26:11] Speaker 04:
Just before you get on to other things, could you just answer that same question?

[00:26:15] Speaker 04:
If we hold that the commission was right on contributory infringement but wrong on induced infringement, does it make any difference?

[00:26:25] Speaker 03:
Did you ask that question the same way before?

[00:26:29] Speaker 03:
I thought before you asked if they were right on induced but wrong on contributory.

[00:26:37] Speaker 03:
So if the commission is wrong on contrived, then it wouldn't make a difference.

[00:26:48] Speaker 04:
No, no, right on contrived.

[00:26:49] Speaker 03:
Right on contrived.

[00:26:50] Speaker 03:
If the commission is right on contrived, then it would be right on induced as well.

[00:26:59] Speaker 04:
No, no, that's not the question I'm asking.

[00:27:01] Speaker 04:
I'm asking in terms of practical effect.

[00:27:05] Speaker 03:
A practical effect?

[00:27:06] Speaker 03:
No, there wouldn't be a practical effect difference, no.

[00:27:09] Speaker 04:
OK.

[00:27:10] Speaker 03:
Thank you.

[00:27:11] Speaker 03:
There will still be a violation of section 337.

[00:27:14] Speaker 03:
OK.

[00:27:18] Speaker 03:
So I was going to start with a bio-rads appeal and the issue about the sample unless the court would like me to proceed otherwise.

[00:27:27] Speaker 02:
Well, no need to repeat the arguments we've already heard.

[00:27:31] Speaker 02:
Is there anything new you would like to tell us from the commission's viewpoint?

[00:27:41] Speaker 03:
Well, I think just to elaborate on the infringement theory here, it's not intended.

[00:27:52] Speaker 03:
The claims don't cover an intended use.

[00:27:56] Speaker 03:
By our knowledge, there are some inputs on the chips, but it wasn't clear.

[00:28:03] Speaker 03:
But to confirm that the input is actually a sample well as opposed to some other kind of well, they relied on the use of a sample with it to confirm that structure.

[00:28:17] Speaker 02:
Well, if they don't cover intended use, then why does it matter what the composition of the sample is?

[00:28:26] Speaker 03:
Because a sample well is a particular structure, right?

[00:28:33] Speaker 03:
It's not just any well.

[00:28:34] Speaker 03:
The ChipGB is a very different device.

[00:28:39] Speaker 02:
But it's not disputed.

[00:28:41] Speaker 02:
Is it that the structures are identical?

[00:28:45] Speaker 02:
I gather that the dispute was what was contained in the structure.

[00:28:51] Speaker 02:
Is that incorrect?

[00:28:58] Speaker 04:
Your position is it doesn't make any difference that the sample is mixed with something else.

[00:29:06] Speaker 03:
Well, that's the infringement theory was that the sample, the monomer solution confirmed that it was a sample well.

[00:29:23] Speaker 03:
But the problem that Bayer has is the monomer solution isn't

[00:29:27] Speaker 03:
a sample in the context of the claims or the patents.

[00:29:30] Speaker 03:
The monitoring solution is an input for a reagent production process.

[00:29:34] Speaker 03:
And that's what the ALJ found.

[00:29:36] Speaker 03:
It's not a sample.

[00:29:39] Speaker 03:
And that finding is supported by substantial evidence.

[00:29:42] Speaker 03:
But Dr. Simpson and Santiago testified to that.

[00:29:47] Speaker 03:
Dr. Simpson testified that a sample is something that a customer cares about and can and wants to analyze.

[00:29:53] Speaker 03:
He said there is no value in analyzing the monitors here.

[00:29:57] Speaker 03:
The definition of sample includes terms of context or of interest.

[00:30:09] Speaker 03:
But that needs to be applied in the context of the patent.

[00:30:15] Speaker 03:
In the patent, that's about figuring out what or how much of an analyte is in a sample using the chip.

[00:30:30] Speaker 03:
Are there any other questions about the sample aspect of the appeal?

[00:30:37] Speaker 02:
Anything else?

[00:30:38] Speaker 02:
Anything new that you need to tell us?

[00:30:42] Speaker 03:
No.

[00:30:44] Speaker 03:
No.

[00:30:46] Speaker 02:
Okay.

[00:30:47] Speaker 02:
All right.

[00:30:47] Speaker 02:
Thank you, Mr. Trav.

[00:30:54] Speaker 03:
Is there, I was just asking about the buyer as appeal.

[00:30:59] Speaker 03:
I do have something to add as far as the droplet generation region construction that was discussed.

[00:31:06] Speaker 03:
So the ALJ explicitly found the construction here to be waived.

[00:31:12] Speaker 03:
It was an independent reason presented for rejecting its construction.

[00:31:16] Speaker 03:
And whenever TANF petitioned the waiver finding to the commission, it needed

[00:31:25] Speaker 03:
that the ALJ made a mistake and it didn't because they didn't show that the, it didn't show that there was an error in the waiver finding.

[00:31:39] Speaker 03:
It doesn't rate any, it doesn't contend any error with the waiver finding until its reply brief here.

[00:31:47] Speaker 03:
And as the court pointed out before, there's just no,

[00:31:52] Speaker 03:
There's no basis in the claim language at all to support its construction.

[00:31:56] Speaker 03:
They're relying on examples of specification, but you can't import limitations from specification into the claims.

[00:32:07] Speaker 03:
And the specification, in fact, allows the channels to be branched or to have one-to-one inlet.

[00:32:14] Speaker 03:
And that's all I wanted to add for that issue.

[00:32:19] Speaker 03:
So if there are any other questions, there are any other questions.

[00:32:22] Speaker 02:
Any more questions for Mr. Trav?

[00:32:25] Speaker 01:
No, no.

[00:32:27] Speaker 02:
OK, thank you.

[00:32:28] Speaker 02:
Then we will hear rebuttal from Mr. Cannon.

[00:32:38] Speaker 02:
Are you here?

[00:32:39] Speaker 02:
Are you unmuted?

[00:32:45] Speaker 00:
Can you hear me, Your Honor?

[00:32:46] Speaker 02:
I hear you now, yes.

[00:32:48] Speaker 00:
I apologize.

[00:32:49] Speaker 00:
I wanted to start off with the question that was raised earlier about contributory and induced infringement, and Bayerad agrees with the ITC that there will be no difference to the outcome.

[00:33:02] Speaker 00:
There would still be a violation of Section 337, an infringement, even if the ITC was wrong on the inducement, but correct on the contributory infringement.

[00:33:16] Speaker 00:
And I also wanted to

[00:33:18] Speaker 00:
add to Mr. Trout's argument from the ITC about waiver because if we look at what the ALJ actually did and what the ALJ actually found, and that is on Appendix Site 692, the ALJ specifically found that 10X had waived its claim construction position on droplet generation region.

[00:33:43] Speaker 00:
In fact, the ALJ said,

[00:33:45] Speaker 00:
called it a, quote, sudden departure from its position in the Joint Claim Construction Chart.

[00:33:50] Speaker 00:
And then further on Appendix Site 693, the ALJ said, quote, the first problem with Respondent's new, quote, extending from construction is that it deviates significantly from the construction it set forth in the Joint Claim Construction Chart.

[00:34:08] Speaker 00:
For this reason alone, pursuant to Ground Rule 1.14, Respondent's new construction is waived.

[00:34:15] Speaker 00:
And that is the construction of droplet generation region.

[00:34:18] Speaker 00:
And it was incumbent upon 10X at that point to appeal that waiver decision to the commission.

[00:34:24] Speaker 00:
It did not do so.

[00:34:25] Speaker 00:
And it was also incumbent upon 10X to appeal that waiver decision to this court, which it did not do so.

[00:34:31] Speaker 00:
So I think the waiver position is, as the ITC presented in its argument, it should have been appealed below.

[00:34:40] Speaker 00:
But even on the merits of droplet generation region,

[00:34:44] Speaker 00:
I believe your honor has analyzed this very well in the questions to Mr. Groombridge in that the droplet generation region is simply the intersection of two channels with a third channel as an outlet channel.

[00:34:57] Speaker 00:
One of the channels has to have sample-containing fluid, and there is no dispute that the fluid that reaches the intersection is sample-containing fluid in terms of a contained sample and it's a comprising claim.

[00:35:13] Speaker 00:
even on the merits, should this construction be reached.

[00:35:16] Speaker 00:
10X is incorrect and is trying to import limitations into the construction.

[00:35:23] Speaker 00:
And then I would like to briefly address the indirect infringement issue.

[00:35:28] Speaker 00:
And Your Honor, unlike the cases cited by 10X in its brief, here we actually had a trial on knowledge and intent.

[00:35:37] Speaker 00:
And the ALJ specifically took testimony and found it not credible from 10X about

[00:35:43] Speaker 00:
its knowledge and intent position.

[00:35:45] Speaker 00:
And the ALJ made very detailed findings in the ID, which was affirmed by the ATC, explaining why the testimony was not credible.

[00:35:54] Speaker 00:
So it's very much like the Warsaw case that I believe Judge Dyke authored from 2016, which affirmed a jury verdict.

[00:36:05] Speaker 00:
We actually had a trial on the knowledge and intent portions for indirect infringement.

[00:36:10] Speaker 00:
So unless Your Honors,

[00:36:12] Speaker 00:
Have any further questions on this issue?

[00:36:15] Speaker 00:
That summarizes Bayard's position on 10-X's appeal.

[00:36:19] Speaker 02:
Okay.

[00:36:20] Speaker 02:
Anything else for Mr. Cannon?

[00:36:22] Speaker 00:
No.

[00:36:23] Speaker 00:
No.

[00:36:24] Speaker 02:
Okay.

[00:36:24] Speaker 02:
Thank you.

[00:36:25] Speaker 02:
And Mr. Groombridge, you have some rebuttal on your cross-appeal.

[00:36:29] Speaker 05:
Thank you very much, Your Honor.

[00:36:31] Speaker 05:
I really just want to follow up on the inducement and contributory infringement point.

[00:36:37] Speaker 05:
And to be clear, perhaps further responding to Judge Dyke's question and to what Mr. Trote and Mr. Cannon said, certainly if the court were to reverse on inducement and contributory infringement, there would still be a violation.

[00:36:53] Speaker 05:
The practical effect that I had in mind is that that may impact

[00:36:57] Speaker 05:
Given that there are these design arounds, it may impact how easy or difficult it is to continue importing chips under procedures, for example, with a certification or some kind of proceeding to modify the exclusion order.

[00:37:13] Speaker 05:
And if that is my time up, I'm happy to stop.

[00:37:17] Speaker 05:
Otherwise, I can just respond to what Mr. Kennan said regarding

[00:37:23] Speaker 02:
Can I take another minute or so to make sure we have the cross appeals straight?

[00:37:29] Speaker 05:
Yes, and on the question of the factual findings, we are not challenging any factual findings regarding the credibility of Dr. Hineson.

[00:37:39] Speaker 05:
The point there is that those really don't relate to the subject matter of these patents.

[00:37:45] Speaker 05:
that is a factual finding saying with respect to whether droplet generation technology was being used.

[00:37:53] Speaker 05:
But that isn't what 682 and 635 patents are about.

[00:37:59] Speaker 05:
They're about other things and therefore that factual finding simply doesn't bear on the question of whether there was the requisite state of mind for inducement of those patents.

[00:38:07] Speaker 05:
And with that, I am concluded unless the court has further questions.

[00:38:12] Speaker 02:
Any more questions for any of the counsel?

[00:38:15] Speaker 05:
No, no.

[00:38:16] Speaker 02:
OK, thank you.

[00:38:18] Speaker 02:
Thanks to all three of you.

[00:38:20] Speaker 02:
The case is taken under submission.