[00:00:00] Speaker 00:
Gatearm Technologies, Incorporated against Access Masters LLC.

[00:00:07] Speaker 00:
Mr. Lockton.

[00:00:10] Speaker 02:
Thank you, Judge Newman, and may it please the court.

[00:00:12] Speaker 02:
This is Andrew Lockton appearing on behalf of the Plaintiff Appellant, Gatearm Technologies.

[00:00:17] Speaker 02:
With my time this morning, or I guess it's this afternoon now, I'd like to address three primary issues.

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I'd like to start with the district judge's review of the report and recommendation issued by the magistrate judge.

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And then, as my friend has been arguing in the briefing that we should simply assume review was appropriate, I would like to take some time to address the correct application of this court's precedent for contempt of a patent injunction.

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And particularly in light of if the court does agree and vacates and remands the order to the district judge, I believe that clarification of the law will be important as it's been a point of

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considerable contention between the parties, both in the lower courts and in the briefing here today.

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And finally, if there's time permitting, I would like to address that even on the facts as found and admitted in the record before you, the 200 patent has been very clearly infringed and that the appellee's modified product violates the court's injunction with at least with respect to that patent.

[00:01:22] Speaker 03:
This is Judge Geranto.

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Can I actually

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divert you from the sequence that you proposed and start at the back end.

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Where in the joint appendix do I find your fullest presentation of your argument that the modified product infringes the 200?

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The fullest presentation of the modified product

[00:01:54] Speaker 02:
Well, let me direct the court to... In our pre-hearing brief, we addressed that the plaintiff... I'm sorry, where do I find that in the joint appendix?

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My apologies.

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In the joint appendix, you can start with appendix 1398 to 1399.

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where we presented to the court that applying the prior infringement contentions for both the 125 and 200 patents to both the enjoined product and the new product, the new product maintained the same features.

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My... So that doesn't actually do what is necessary for a basic infringement analysis, which is to

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recite the elements of the claim and show how they map onto the accused device.

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Let me just, I guess, foreshadow the thought that is worrying me about your 200 tape, and I'm not sure you ever made it.

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So if you look at the 200 patent, it says that the opening in the arm is formed

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by the channel, and in particular by the upper and lower channel sidewalls.

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That means, it seems to me, that the upper and lower channel sidewalls have to come out and meet the arm at the corner.

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Otherwise it wouldn't be an opening in the arm.

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That's what it means for the opening to be formed.

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At that point though, what everybody is calling the fins,

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when they've been moved into the interior of the channel are no longer the terminating ends of the channel upper and lower sidewall, and therefore don't infringe.

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And I don't see where you did that infringement analysis, which is one half of the TiVo contempt analysis, not the colorably different half, but the infringement half, which undeniably had to be established by clearing convincing evidence under TiVo.

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Yes.

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I believe that Dr. Tipton's concession during the trial, the evidentiary hearing testimony, the magistrate's judge finding that the fins were included on the upper and lower inset channel sidewalls and the admissions of the principals of the appellees, Mr. Brinkman and Pickman, that the fins were on the upper and lower channel sidewalls.

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Here's why it seems to me that at least some of that doesn't do the trick.

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The fins are undeniably on the upper and lower sidewalls of the channel, but that doesn't say, and the magistrate didn't say, that they are at the terminating ends of the upper and lower channel sidewalls.

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And indeed, since the channel sidewalls

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it seems to me, clearly have to come out to meet the arm, they are plainly not the terminating ends.

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And Dr. Tipton actually did say that at the end of his expert report.

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I think it's 1054, 1055.

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And then I think gave that answer expressly in cross-examination at 2378 of the appendix.

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Well, Your Honor, I believe Dr. Tipton's

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entire opinion, first of all, should never have been considered by the court because he failed to apply this court's Kivo analysis in presenting an expert opinion.

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However, he did concede that with regard to what we presented as our infringement contentions for both the enjoined product and for the modified product, that that contention, which was reflected with the blue line, was the same for both

[00:06:21] Speaker 01:
Council, this is Judge Chen.

[00:06:24] Speaker 01:
I'm curious to understand better what your side did to articulate, you know, under this clear and convincing evidence standard in this contempt proceeding, why these fins, which are no longer along the outer surface but now are inset somewhere along the way,

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why they necessarily are at the terminating end of the channel sidewalls?

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I believe that question might incorporate a couple of mistakes, Your Honor.

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If I might, first of all, outer surface was never part of the claim terms that are included in the 125 or the 200 patents.

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They're not part of the court's claim construction.

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But they have been introduced and argued by my friends on the other side.

[00:07:21] Speaker 01:
OK.

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Then what is your conception then of why we can identify this particular location along the channel sidewall as the terminating end of the channel sidewall?

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And I would like to address that as my second point, Your Honor.

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The terminating ends were the term used in the specification

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in the claims to represent what became referred to as the fin or the lip.

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It was not, it wasn't presented and it hasn't been argued, and it wasn't part of the court's claim construction, it wasn't addressed by the district judge, that those had to be at the terminating end of one of the sidewalls.

[00:08:09] Speaker 02:
Those were the, the terminating end was the articulation of what was later referred to as a fin.

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So in the 125 patent, it was claimed that the terminating ends were included on the upper and lower sidewalls, which was then construed by the court as the upper half of the side surface and the lower half of the side surface.

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With the 200 patent, however, the terminating ends were claimed as being on the upper and lower inset channel sidewalls.

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And that was presented in our contentions, and that was presented in our case.

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Right, but I'm just looking for, I mean, I see that you've got red lines, blue lines in your pictures, but I'm trying to understand where you made the case that this necessarily is located, why this can be regarded as a terminating end when you would think that a terminating end logically would be at the very, very end of the channel sidewall.

[00:09:16] Speaker 01:
And so therefore, why is this fin located at the terminating end of the channel sidewall?

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Or if you agree it isn't, why doesn't it have to be at the terminating end of the channel sidewall to be regarded as a terminating end of a channel sidewall?

[00:09:44] Speaker 02:
Well, I guess I would

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try to explain it as the upper terminating end and the lower terminating end were articulated within the patents as a structure in and of themselves.

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They weren't claimed as the terminating end of a specific sidewall.

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They were claimed, which is why they ended up being referred to as fins, as their own distinct piece.

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That piece later became referred to as the fin.

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So we weren't arguing and presenting that they had to be at the terminating end of the inset channel sidewalls or at the terminating end of the upper and lower sidewalls.

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They are, as claimed, included here.

[00:10:30] Speaker 01:
So are you saying that they are a structure separate from the channel sidewalls?

[00:10:36] Speaker 01:
I mean, the claim says inset channel sidewalls including a first upper

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terminating end and a first lower terminating end.

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So to me that suggests that whatever a terminating end is, it's part of the channel walls.

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It's not a separate entity apart from the channel walls.

[00:11:04] Speaker 01:
It's included as part of the channel walls.

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And I would agree that in both the

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in joint product and in the new product, that what we're calling terminating ends or fin is included, and it is part of that structure.

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It forms straight from it.

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And in just the way that... Straight from it, but why?

[00:11:26] Speaker 01:
But I guess my question continues to be, why are these fins in the accused product at the terminating end of the inset channel walls?

[00:11:38] Speaker 01:
And where did you explain why

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this represents the terminating end and not some other location.

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For example, like where the channel walls go all the way out to the surface of the arm.

[00:11:58] Speaker 02:
I believe that we presented that through Dr. Rice's testimony using the demonstrative showing how the infringement contentions are drawn showing that... Your Honor, may I finish my response?

[00:12:11] Speaker 00:
Yes, of course.

[00:12:12] Speaker 02:
In the same way that if the inset channel sidewalls on the upper and lower have terminating ends that form an angle and curve into what we're calling the fits, that change, which Dr. Tipton admits has not been changed between the two products, is the same kind of continuous structure that is shown in our demonstrative exhibit where

[00:12:42] Speaker 02:
the upper and lower sidewalls of the modified product now have that curve in order to connect to that terminating end of the inset channel sidewalls.

[00:12:52] Speaker 02:
I guess a more complete answer would be that we are right now, today for the first time, attempting to construe something that was never presented below, but where the terminating end of the inset channel wall is.

[00:13:09] Speaker 02:
And that would be a matter that

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it's, I mean, it can be construed in different ways.

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I would argue that following those blue lines in the demonstrative, it shows exactly how the fin is on that terminating end under your honor's hypothetical.

[00:13:26] Speaker 02:
And it also shows how the outer, the upper and lower sidewalls on the outer surface of the gate arm include a similar right-hand bend or left-hand bend depending on which surface you're on, upper or lower, in order to meet that

[00:13:42] Speaker 02:
terminating end of the inset channel sidewall where the fin is coming off of.

[00:13:51] Speaker 02:
I also think this is a matter that the district judge should have reviewed.

[00:13:56] Speaker 00:
Any more questions at the moment for Mr. Lockton?

[00:14:00] Speaker 03:
No.

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

[00:14:02] Speaker 00:
All right.

[00:14:02] Speaker 00:
Thank you.

[00:14:02] Speaker 00:
We'll hear from the other side.

[00:14:04] Speaker 00:
Mr. Schneider.

[00:14:07] Speaker 04:
Good afternoon, Your Honor, and thank you.

[00:14:09] Speaker 04:
I would like to take less than a minute

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to summarize why this case should not be remanded but should be affirmed.

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And the first issue is the undisputed facts, namely the settlement agreement, paragraph four, which explains how the parties agreed on a structure that would not violate either the settlement or the injunction.

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Now, the plaintiff sought to have this case reopened and asked the court to enforce the settlement.

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But now they're saying that you can't rely on the defense of paragraph four, which is totally inconsistent, and the plaintiff should not have it both ways.

[00:14:49] Speaker 00:
You're saying that this change structure was actually before the parties at the time of settlement?

[00:14:57] Speaker 04:
No, it was not before the parties.

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It was in the language that the parties agreed on at settlement that if the terminating ends are not partially within the opening, then there would be no infringement and no violation.

[00:15:11] Speaker 04:
Now, we didn't cross-appeal because in the Batiscope case, this court said it would be improper for the prevailing party to cross-appeal, but you could rely on anything in the record to sustain the decision below.

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Here, the magistrate made express findings on paragraph four from plaintiff's expert witness.

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And these are paragraphs 60 to 62 of the magistrate's findings.

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where the expert for the plaintiff said, no, they are not partially within the opening.

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They are completely within the opening.

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That is an absolute defense.

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With all due respect to the district court, it was raised five times below, as pointed out in our red brief at page 26, or the electronic version.

[00:15:59] Speaker 01:
Mr. Schneider, when it comes to the claim construction for the 125 patent, didn't the

[00:16:06] Speaker 01:
court below construe this particular limitation as so long as the terminating ends are located in the opening, that's how we should understand this limitation about partially terminating in the opening?

[00:16:25] Speaker 04:
Let me pull that up, but I don't recall that it was said that way, but allow me to just double-check because I don't want to speak.

[00:16:41] Speaker 04:
The first upper side wall, including a terminating end, and the first lower side wall, including a terminating end.

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And what was said is, and I'm reading from appendix page 32, the upper half of the first side surface extending from the convex top to its terminal end located

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in the first opening.

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It doesn't say partial or complete or fully or anything like that.

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So the parties, and this was after the party settlement, so the party does not challenge this plane construction, and it leaves the issue of partially or completely undefined, if you will, but... Mr. Schneider, I think I've absolutely lost the thread here.

[00:17:38] Speaker 03:
Why are we talking about this?

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I really don't get the point yet.

[00:17:42] Speaker 04:
We believe that the decision below should be affirmed on the basis of paragraph four of the settlement agreement, the magistrate's findings that were affirmed and adopted, and the testimony which comes solely from plaintiff's expert that the accused product, the terminating ends are entirely rather than partially within the opening, and that was agreed by the parties would be an exemption from liability.

[00:18:14] Speaker 04:
So on that basis, this court should affirm the decision below, independent of anything else.

[00:18:24] Speaker 00:
But again, that's not in the agreement, right?

[00:18:28] Speaker 04:
It is in the agreement, Your Honor.

[00:18:30] Speaker 00:
Those are words that you read to us?

[00:18:33] Speaker 04:
Yes, if you would look, if I may, Your Honor, at Access Masters

[00:18:41] Speaker 04:
read brief at pages 5 and 6, which would be at pages 22 and 23 of the electronic version.

[00:18:52] Speaker 04:
The paragraph bridging the page says that the parties acknowledge that the defendants can redesign.

[00:19:00] Speaker 04:
And as long as it says by not including the first upper side wall,

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the one having ends terminate partially within the opening.

[00:19:13] Speaker 04:
And further that, a redesigned product lacking the claim limitation shall not infringe the patent's plural platency suit or constitute a violation of the consent decree.

[00:19:23] Speaker 04:
So before this new version was designed, the parties agreed that if you did not have partial termination in the opening, you would not infringe.

[00:19:36] Speaker 04:
And in fact,

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All the witnesses agreed, and we're relying sufficiently to rely on planet zone experts, that in the new product, those terminating ends are completely within the opening, not partially within the opening.

[00:19:53] Speaker 04:
And in fact, it was from a mechanical engineering standpoint, it was explained that in the old device, if you remove the channel, the so-called terminating ends or fins would still be there.

[00:20:03] Speaker 04:
In the new device, if you remove the channel completely,

[00:20:07] Speaker 04:
you take away those terminating ends because they're in the channel walls rather than on the, what I would call the outside envelope walls.

[00:20:17] Speaker 04:
So on that basis alone, there should be affirmance.

[00:20:19] Speaker 04:
Now I would like to address briefly the point about the 200 patent.

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In the plaintiff, I use the word plaintiff because the name of the product is a gate arm as well.

[00:20:32] Speaker 04:
In the plaintiff's gray reply brief at 10,

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they suggest that Dr. Kippen admitted with regard to the 200 patents that the New Gate Arm is the same.

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And there's a citation to Appendix 26 and Appendix 2369 and 2370.

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Appendix 26 does not use the word patent or the numeral 200.

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Appendix 2369 and 2370 does not use the word patent or the numeral 200.

[00:21:04] Speaker 04:
So I would submit

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that there is no such admission by defendant's expert or anyone else.

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As far as what the red lines and the blue lines in the demonstratives indicate, the magistrate judge, after observing the demonstrative and after observing the witness's demeanor and explanation, wouldn't buy into the theory that the red lines are the 125 patent and the blue lines are the 200 patent.

[00:21:34] Speaker 04:
And no brief submitted by the plaintiff quotes any testimony that says the blue lines of the 200 patent.

[00:21:45] Speaker 04:
Dr. Rice at the cited pages only says on behalf of the plaintiff that the new design infringes both patents, which is an unsupported conclusion.

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So I would again submit there's no clear and convincing evidence

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of the not color blue different test and no clearance convincing evidence of all the other aspects of infringement.

[00:22:09] Speaker 04:
And on that part, the magistrate judge did say that the otherwise infringed featured the parties were disputing whether certain contentions could be relied on.

[00:22:25] Speaker 04:
Over the defendant access measures objections, the magistrate said, I will let those contentions in

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but only for the two terms of the claim that I construed.

[00:22:36] Speaker 04:
Well, plaintiff never brought anyone into court to talk about all the rest.

[00:22:41] Speaker 04:
They wanted to take depositions of plaintiff's customers to prove the other features.

[00:22:46] Speaker 04:
They never did.

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The judge gave them leave to do it.

[00:22:49] Speaker 04:
They never did.

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They did not depose or examine the principles of either of the two defendants on this topic.

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Nothing has been cited that goes claim limitation by claim limitation and compares the new device to those claims.

[00:23:12] Speaker 04:
We believe that they just have failed on the clear and convincing evidence standard.

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And the decision below should be affirmed.

[00:23:21] Speaker 04:
And unless the court has specific questions, I would rely on our opposition brief for the remaining issues.

[00:23:28] Speaker 00:
Any more questions for counsel?

[00:23:32] Speaker 01:
Just one, and that is if the decision below were to be affirmed here, would the plaintiffs still be able to file a new patent infringement action against your new gate arm design based on infringing either or both of the patents here?

[00:23:58] Speaker 04:
It depends on what this court says in affirming the decision below.

[00:24:06] Speaker 04:
If the court affirms on the basis of the settlement agreement, that would be conclusive, and the answer is no.

[00:24:14] Speaker 04:
If the court here affirms without giving a specific reason or giving other reasons, such as the plaintiff did not meet its burden of proof of clear and convincing evidence, then the answer is

[00:24:28] Speaker 04:
They could, but they would be faced with the same defense paragraph for the settlement agreement.

[00:24:36] Speaker 04:
They would be faced with the testimony of their expert from the first case that they may have to change experts.

[00:24:42] Speaker 04:
I have no idea what their theory would be, but it respects to, it depends on the manner in which this court renders its decision.

[00:24:54] Speaker 00:
Okay.

[00:24:54] Speaker 00:
Any more questions?

[00:24:57] Speaker 01:
No.

[00:24:58] Speaker 00:
I thank you, then we'll hear... Thank you, Your Honor.

[00:25:03] Speaker 00:
Thank you, Your Honor.

[00:25:04] Speaker 00:
We'll hear you battle, Mr. Lofton.

[00:25:08] Speaker 02:
Thank you, Your Honor.

[00:25:10] Speaker 02:
Going to what my friend was just arguing, now, I think the infringement contentions were admitted for all purposes, and they were presented to the magistrate judge, and she didn't limit the admission of the infringement contentions to only two terms.

[00:25:28] Speaker 02:
But as identified on the appellee's red brief at eight, where they make that argument, if you look at the magistrate judge's report, she only analyzed whether or not there was a violation of the injunction based on two terms of one of the two patents.

[00:25:45] Speaker 02:
And so it was on those grounds, one of the main grounds that we objected to the report and recommendation.

[00:25:54] Speaker 02:
The evidence was in the record.

[00:25:57] Speaker 02:
What we have as far as where this concept of removing the channel, that just goes to one of our other arguments that we presented in our objections, that the principal defense in the underlying case before the magistrate was this idea of importing new claim terms of a U-shaped channel versus a C-shaped channel.

[00:26:18] Speaker 02:
But as we look at the actual geometric structure, there really isn't a difference, and there's definitely not a significant difference between the two.

[00:26:27] Speaker 02:
We also have a number of extrajudicial admissions.

[00:26:31] Speaker 02:
We have findings of obviousness of this modification specifically that were never addressed by the district judge.

[00:26:40] Speaker 02:
And so under the 11th Circuit's law for review of a magistrate judge's opinion, we believe all of this needs to go back to the district judge to address the correct legal standard and the application of the records to that standard.

[00:26:58] Speaker 02:
I also heard my friend arguing about this partially versus completely within the opening language.

[00:27:04] Speaker 02:
And, I mean, frankly, that issue was presented below.

[00:27:09] Speaker 02:
It was rejected by the magistrate judge.

[00:27:12] Speaker 02:
It was presented to the district judge.

[00:27:13] Speaker 02:
It was rejected by the district judge.

[00:27:15] Speaker 02:
And now they're trying to rely upon it here for terms that they didn't ask for those terms to be construed.

[00:27:22] Speaker 02:
They didn't ask for the court below to do anything with regard to them.

[00:27:26] Speaker 02:
And they're asking for this court to affirm on what the district judge found to be a new ground in their objection or in their response to the objections.

[00:27:38] Speaker 02:
At the end of the day, what we have here is a modification to a physical structure that presents no significant change.

[00:27:47] Speaker 02:
It presents the same structural features performing the same function arriving at the same result.

[00:27:55] Speaker 02:
It meets the

[00:27:56] Speaker 02:
Well, as I argued before, it meets the language of the 200 patent, and that specific modification has been found obvious and at least extrajudicially admitted to be the same between the two products.

[00:28:12] Speaker 02:
So, you know, going back to where I started, we believe that the constitutionally required de novo review had never been conducted

[00:28:24] Speaker 02:
And so there's an incomplete record before this court on virtually every point, including my client's Daubert motion to exclude the entire testimony of Dr. Tipton.

[00:28:37] Speaker 00:
Well, counsel, what's your answer to their point that the settlement agreement paragraph four explicitly authorizes the change that was made?

[00:28:50] Speaker 02:
I would absolutely dispute that it authorized the change that was made.

[00:28:54] Speaker 02:
That's an argument that they presented and failed with below.

[00:28:59] Speaker 03:
Can you explain the reason you think it's wrong?

[00:29:03] Speaker 02:
Yes, Your Honor.

[00:29:05] Speaker 02:
The reason that we believe it's wrong is for the same reason that we presented during the evidentiary hearing and in our objections to the district judge, is that the language that was quoted within the settlement agreement

[00:29:23] Speaker 02:
It's simply a representative statement of if you don't have what we are calling currently the fins as holding in the LED light, then you won't infringe the patents.

[00:29:38] Speaker 02:
Now, my friends asked for that language to be construed, and it was.

[00:29:45] Speaker 02:
They prevailed on the claim construction, but now they're realizing that the construction that they asked for doesn't help them.

[00:29:54] Speaker 01:
This is Judge Chen.

[00:29:56] Speaker 01:
As I understand it, the limitation that was identified in the settlement agreement, that's a limitation that comes from the 125 patent, not the 200 patent.

[00:30:08] Speaker 01:
Is that right?

[00:30:11] Speaker 02:
That is correct, Judge Chen.

[00:30:13] Speaker 01:
And then the settlement agreement paragraph goes further and says, as long as you don't infringe this claim limitation,

[00:30:24] Speaker 01:
then you are not infringing the patents in suit, i.e.

[00:30:31] Speaker 01:
the 125 and the 200 patent.

[00:30:34] Speaker 01:
Is that right?

[00:30:37] Speaker 02:
I'm pulling up the language right now.

[00:30:41] Speaker 02:
I believe it says something to that effect.

[00:30:44] Speaker 02:
Yes, I believe that's correct.

[00:30:45] Speaker 03:
It refers to both patents, not just the one from which the quotation is taken.

[00:30:51] Speaker 02:
That is correct, yes.

[00:30:54] Speaker 01:
So in a sense, they rise and fall together so long as they do not practice this specific claim limitation from the 125.

[00:31:14] Speaker 02:
Well, I guess I would argue, Your Honor, that right now we're here on a contempt proceeding.

[00:31:20] Speaker 02:
The contempt proceeding has its standard

[00:31:23] Speaker 02:
the colorable difference and continues to infringe in the manner that the enjoined product infringed.

[00:31:29] Speaker 02:
Now, we've presented that case.

[00:31:32] Speaker 02:
If we were going to go forward in a new action, which to answer the previous question, I believe that we have the right to go forward in a new action.

[00:31:42] Speaker 02:
But if we were to go forward, then that language and the proper construction of it would be at issue.

[00:31:51] Speaker 02:
I do believe that as we presented in our case below, I'm just looking for a little help.

[00:31:58] Speaker 01:
Is there a different way to read that statement in the settlement agreement?

[00:32:03] Speaker 01:
Because, I mean, I think the plain meaning is if you don't practice this one limitation from the 1-2-5 patent, then you are not infringing either of the two patents.

[00:32:19] Speaker 01:
If there's a second reading of that statement, I'd be interested.

[00:32:25] Speaker 02:
Well, I think that the argument that is being presented by my friends on the other side is that that language necessarily means, imports a term of outer surface, which is a point that we discussed earlier, where we do not read that language of the claim of the settlement agreement and the language of the claim.

[00:32:45] Speaker 01:
I think I'm asking a different question.

[00:32:46] Speaker 01:
It's more a basic conceptual question.

[00:32:49] Speaker 01:
as to whether or not this settlement agreement the parties reached agreed that if you don't practice this one limitation from the 125 patent, then there is no infringement of the 125 patent or the 200 patent.

[00:33:09] Speaker 02:
I believe I understand your question, Judge Chen.

[00:33:12] Speaker 02:
To answer the question, the basic question that you're asking, yes, we would

[00:33:18] Speaker 02:
agree that the language reads in a manner that it says if you do not practice the claim limitation of the 125, you don't practice, you don't violate the settlement agreement because, and it would be for the reason that as we presented below, that language from the 125 patent and 200 patent tracks the argument that we presented.

[00:33:50] Speaker 02:
All of which, I would go back to my initial point, needs to be addressed by the district judge.

[00:34:03] Speaker 00:
Any more questions for counsel?

[00:34:07] Speaker 00:
No.

[00:34:09] Speaker 00:
All right.

[00:34:09] Speaker 00:
In that case, the case is taken under submission with thanks to both counsels.

[00:34:15] Speaker 04:
Thank you, Your Honors.

[00:34:16] Speaker 00:
That concludes this panel's arguments for today.

[00:34:23] Speaker 02:
The honorable court is adjourned until tomorrow morning at 10 a.m.