[00:00:00] Speaker 04: is clear out the one case before the people for the second case move on. [00:00:05] Speaker 04: So please be mindful of that and we'll give you plenty of time to set up. [00:00:09] Speaker 04: So good morning. [00:00:10] Speaker 04: The first case for argument this morning is 19-2275, Industrial Print Technologies versus Genvia. [00:00:19] Speaker 04: Mr. Maloney, whenever you're ready. [00:00:27] Speaker 01: Thank you, Your Honor. [00:00:28] Speaker 01: May it please the court, we have appealed five issues and two relate to the summary judgment rulings of non-infringement of the variable data printing patent. [00:00:39] Speaker 01: to summary judgment rulings relating to the inkjet control patents, and then the amount of fees relating to the dismissal of two of the customers. [00:00:46] Speaker 01: I plan to try to address these in the order that we briefed. [00:00:50] Speaker 04: Mr. Maloney, before you start, this is just a housekeeping thing, and maybe Mr. Reynas has something to say about this, too. [00:00:57] Speaker 04: But everything in the appendix is marked confidential, including the district court's opinion, all the expert witnesses, the deposition. [00:01:04] Speaker 04: Now, I think to a certain extent, [00:01:06] Speaker 04: It's not confidential in the briefs, but we're all, I think, having a hard time here, like what, if anything, we can talk about and why all of this stuff should be confidential. [00:01:17] Speaker 01: Your Honor, these are confidentiality designations by the defendants, not by my clients. [00:01:22] Speaker 01: We had this issue in the briefing, and we actually had an order rejecting the original brief as redacting too much information. [00:01:31] Speaker 01: And so we met and conferred with [00:01:33] Speaker 01: the defendant's counsel and the revised corrected brief has a much more narrow number of terms that are redacted based on their confidentiality distribution. [00:01:42] Speaker 04: Well the difficulty is maybe Mr. Reines has something to say is that so now we've got briefs that talk about stuff in a non-competential way but the documents in the appendix that correspond to those are still marked confidential. [00:01:55] Speaker 04: I assume if it's in the brief it's good to go. [00:01:58] Speaker 04: But what about stuff like the district court's opinion? [00:02:01] Speaker 04: I mean, there's nothing in there that we are not free to cite, is there? [00:02:06] Speaker 01: Mr. Wright? [00:02:06] Speaker 01: Again, that was the defendant's request that those opinions be filed under seal by the court, and the district court accepted that. [00:02:12] Speaker 01: That was not at our request. [00:02:15] Speaker 02: Do you want me to drag this down here? [00:02:18] Speaker 02: Yes, please. [00:02:18] Speaker 02: So we had some complications here. [00:02:20] Speaker 02: We didn't know what they were going to appeal. [00:02:24] Speaker 02: Obviously, it's all seven cases. [00:02:25] Speaker 02: And there was a big to do. [00:02:28] Speaker 02: They originally filed. [00:02:30] Speaker 02: without even engaging with us. [00:02:34] Speaker 02: And, well, we're going to have to. [00:02:37] Speaker 04: OK, besides the history, where are we now? [00:02:39] Speaker 02: Yeah, so, but that's the history of the report, which is that we never had the meet and confer regarding the underlying record, because we never had engagement on that. [00:02:49] Speaker 02: But where we are now, to get to that, that's the way we can get to that report. [00:02:53] Speaker 02: There's very limited confidence information that relates to the fire signal and some of the very specific details that I don't think are requisite for deciding this case, at least as far as I know. [00:03:06] Speaker 02: Okay. [00:03:06] Speaker 02: Other than that, I don't think there's anything else that's under seal, and certainly the opinions of the court as well could implicate it. [00:03:12] Speaker 00: Perhaps you can write to us and let us know exactly what's confidential with respect to the signal, because it's difficult to write an opinion if we don't know what's confidential or not. [00:03:26] Speaker 00: And this is another example. [00:03:29] Speaker 00: I mean, we had to deal with this issue a number of times. [00:03:31] Speaker 00: This is another example. [00:03:33] Speaker 00: over marking of confidentiality and it stimmies the process you know again we are wasting more time on this let us know what's confidential and what's not you guys get together and then we'll be free to go ahead and and and use our judgment right right the opinion [00:03:54] Speaker 02: The briefs do have limited amounts of that. [00:03:56] Speaker 02: Yes. [00:03:57] Speaker 02: OK. [00:03:57] Speaker 04: Yes. [00:03:58] Speaker 04: OK. [00:03:58] Speaker 04: We're going to restore, start you back at the 15-minute clock. [00:04:02] Speaker 03: Can I ask one quick question, Mr. Marlone? [00:04:04] Speaker 03: I heard you say that all of the confidential information is the defendant's information. [00:04:09] Speaker 03: So you have no, you personally, for your client, have no information that you want to designate a confidential. [00:04:14] Speaker 01: That's correct. [00:04:15] Speaker 01: We were just attempting to comply with their designations on the protective order in the district court in marking visas confidential in the appendix. [00:04:23] Speaker 04: Okay, thank you. [00:04:24] Speaker 04: Okay, so is it too much to are we okay with just turning the clock back and starting at 15 minutes? [00:04:37] Speaker 04: Yes, we're good. [00:04:38] Speaker 01: We're good to go. [00:04:38] Speaker 01: All right. [00:04:39] Speaker 01: May it please the court. [00:04:40] Speaker 01: So we have two issues relating to the variable data printing patents, two summary judgment rulings on the ink checks and 12 patents, and the issue of the amount of fees awarded. [00:04:48] Speaker 01: I'm going to try to touch on all of these briefly, and I'm trying to go in order that we did in our brief subject, of course, to the court's questions. [00:04:54] Speaker 04: OK. [00:04:54] Speaker 04: Well, I mean, I think we're going to have a lot of questions, so let's just get started. [00:04:59] Speaker 04: Can I talk about the cases for a minute, the sort of pre-principle cases that are in [00:05:04] Speaker 04: play here, which is your side argues Lucent, the other side argues Fujitsu. [00:05:10] Speaker 04: As far as I could tell from the district court's summary judgment decision and your opposition to summary judgment, you had a see-sight to Lucent, but not for any of the principles or arguments you're making before us in this brief, right? [00:05:24] Speaker 04: Am I right about that? [00:05:26] Speaker 01: I'm not sure exactly which cases we cited in a brief. [00:05:30] Speaker 01: I do know that at the summer judgment oral argument I argued this point directly to the district court that in a case like this where a machine is capable of infringing and non infringing modes Circumstantial evidence and direct evidence are both relevant and the circumstantial evidence in this case included all of the things that we've highlighted in our appellate briefs which are [00:05:50] Speaker 01: the fact that they're designed to practice these methods, they're supported, there's extensive evidence of instructions, demonstrations, training, all of this other evidence, all of which was put forth in the district court in opposition to their summary judgment through our... Let me just follow up on that because it's a more recent case. [00:06:11] Speaker 04: I guess it's Toshiba, and it's a 2012 case. [00:06:17] Speaker 04: And it's interesting there because the court, I guess, got caught up in the food fight between Lucent and Fujitsu and tried to sort of make sense of how those two apply. [00:06:29] Speaker 04: And it seems like the court in that case relied very heavily on Fujitsu being disabled by default, which seems to be the case here. [00:06:41] Speaker 04: So whether or not you're capable of infringing, the court there differentiated between the two. [00:06:47] Speaker 04: And they said, OK, nothing was done by default in Lucent. [00:06:53] Speaker 04: But here in Fujitsu, it was. [00:06:57] Speaker 04: In our case, isn't there default? [00:07:02] Speaker 04: Where it says capable of infringement, aren't the devices disabled by default? [00:07:10] Speaker 01: Well, there's only one instance where there's an issue of a default. [00:07:14] Speaker 01: That is the processing of PDF files. [00:07:17] Speaker 01: When the PDF files, which are PDF or PDFPT, are processed, there's a setting called optimize that has to be set. [00:07:23] Speaker 01: And the evidence was that that is not turned on by default. [00:07:27] Speaker 01: But that doesn't avoid infringement. [00:07:29] Speaker 01: First of all, that's only two of the file types accused. [00:07:32] Speaker 01: There are five. [00:07:33] Speaker 01: OK, so can you tell me the two? [00:07:35] Speaker 04: Because I've got four of these and I've got all kinds of lists. [00:07:37] Speaker 04: So the two that are disabled by default, is that the JLYT? [00:07:42] Speaker 01: No, that is PDF and PDFVT. [00:07:47] Speaker 04: OK. [00:07:48] Speaker 01: When those two file types are processed, if the Indigo is not set for optimized, [00:07:54] Speaker 01: It won't use the save and reuse bitmap feature. [00:07:58] Speaker 01: But that's simply a drop-down menu and the customer can select on or off. [00:08:02] Speaker 01: The point they made was, well, it's off when it's shipped to the customer. [00:08:06] Speaker 01: But, Your Honor, our case is not focused on that alone by any means. [00:08:11] Speaker 01: Our claims cover, we have expert analysis showing, when any of these five file types [00:08:18] Speaker 01: are used for variable data printing. [00:08:20] Speaker 01: And we limited the PDF to the situation where the optimized feature is turned on, that in any of those five scenarios, the claims are necessarily practiced. [00:08:30] Speaker 04: Well, firstly, I want to turn to Judge Rainer, because he had a question. [00:08:32] Speaker 04: But I have a question about the expert reports and what they say about those files and formats. [00:08:37] Speaker 00: I'm interested in your reliance on your circumstantial evidence question. [00:08:43] Speaker 00: And to me, circumstantial evidence can mean a lot of different things. [00:08:48] Speaker 00: It's evidence that can point to a mere possibility [00:08:51] Speaker 00: Which in that case, I think that it'd be difficult to find summary judgment on that. [00:08:57] Speaker 00: And there can be evidence that points to a probability that something happened. [00:09:01] Speaker 00: It's more probable than not that it happened. [00:09:04] Speaker 00: Are you arguing the latter? [00:09:06] Speaker 00: And so does it make a difference that lucent pertains to a jury verdict, the review of a jury verdict, versus in this case where we're looking at summary judgment? [00:09:18] Speaker 01: Our feeling and our view, Your Honor, is that the circumstantial evidence has to show that more likely than not, at least one customer, at least one end user, used the infringing modes of operation. [00:09:32] Speaker 01: More likely than not. [00:09:34] Speaker 01: And that is enough to survive summary judgment under Lucent, under Toshiba, [00:09:40] Speaker 01: we have amazing amount of evidence to demonstrate not only circumstantial evidence. [00:09:45] Speaker 00: So what does that mean? [00:09:48] Speaker 00: Identifying the direct infringer, is that more likely than not? [00:09:53] Speaker 01: I'm sorry, Your Honor, I didn't hear your question. [00:09:54] Speaker 00: It's more likely than not, evidence that's more likely than not. [00:09:59] Speaker 00: In the area of the infringement, are we talking about identification of the direct infringer? [00:10:09] Speaker 01: Yes, it doesn't have to be identification of a specific customer that performed the method, but there has to be some evidence, either direct or circumstantial, that more likely than not at least one end user performed these claimed methods. [00:10:23] Speaker 03: What do you think is your best evidence for a PDFVT, for the best evidence to show that more likely or not at least one customer used variable printing? [00:10:37] Speaker 01: the evidence was admittedly lighter on so I understand where your question is coming from we have one customer who said they most likely use PDF BT so that would be the only direct evidence we have an actual instance of using it but that specific use isn't [00:10:55] Speaker 04: There only infringement if the very data feature is enabled. [00:11:00] Speaker 04: And was there any evidence that that one person who arguably may have used that did it in a way that was enabled to infringe? [00:11:08] Speaker 01: Possibly. [00:11:08] Speaker 01: Perhaps not for that one customer. [00:11:10] Speaker 01: But again, this is where. [00:11:11] Speaker 04: OK, so what we've got is possibly one customer who possibly infringed because we don't know whether or not the device was enabled as required for infringement. [00:11:19] Speaker 01: Is that who we are? [00:11:20] Speaker 01: I don't agree with that character. [00:11:20] Speaker 01: Respectfully, I don't agree with that characterization. [00:11:22] Speaker 01: What we have is [00:11:25] Speaker 01: circumstantial evidence that all five of these processing modes were deliberately designed into the indigo machines, that HP trained their customers at on-site demos, demos at their Georgia facility through written materials, week-long training sessions, how to do all these things and encourage them to use this. [00:11:44] Speaker 01: These claims are actually quite straightforward in that you just have to designate [00:11:48] Speaker 01: static and data static and variable areas. [00:11:51] Speaker 01: And then the machine does the rest. [00:11:53] Speaker 01: It saves and reuses the static bitmaps. [00:11:56] Speaker 01: And that's the, that's the essence of the claim. [00:11:58] Speaker 01: So as long as you're doing variable. [00:11:59] Speaker 03: I wanted to give you a chance to answer that question, but I do have a question for you that relates to it, which is, are the underlying documents, I see you've got your expert testimony and might refer to sales information and marketing data, but at least in my appendix, I have not been able to find that the underlying evidence that's quoted by the expert. [00:12:18] Speaker 03: Is it in the appendix? [00:12:20] Speaker 03: Was it provided to the district court? [00:12:22] Speaker 01: Some of that is in the appendix but there was an overwhelming amount of evidence and so we cited the expert report which in turn identifies all the underlying evidence that the expert relied on and during the oral argument [00:12:35] Speaker 01: I asked the district court if she would like the actual underlying evidence and she just, no we don't need to do that. [00:12:41] Speaker 04: Well one of the early things she said was you've got a hundred, you cite to hundreds of pages of expert reports and that's all you do. [00:12:49] Speaker 04: Not calling out. [00:12:51] Speaker 04: But let me ask you, when she starts off she divides two and two and the first was [00:12:57] Speaker 04: She just concludes there was no infringement there. [00:13:01] Speaker 04: Is that because those weren't covered by the instructions and all of the stuff you're citing, training and instructions? [00:13:07] Speaker 04: Was that with respect to all four of these formats or just to two of them? [00:13:11] Speaker 01: The instructions covered all five of the relevant file types. [00:13:15] Speaker 01: So we think this was a major error on the district court's part. [00:13:18] Speaker 01: She required [00:13:19] Speaker 01: direct evidence in the sense of someone actually observing somebody using PDFVT with the optimized feature turned on, or PPMLT. [00:13:28] Speaker 01: That is not required. [00:13:29] Speaker 01: That is absolutely not required. [00:13:31] Speaker 01: There's circumstantial evidence that all five of these formats are not only supported, not specifically trained and demonstrated by HP. [00:13:39] Speaker 00: It's not required under Lucent, correct? [00:13:41] Speaker 00: That's correct. [00:13:42] Speaker 00: Okay, this goes back to my question to you, and I'd like Mr. Reines to answer this question, too. [00:13:47] Speaker 00: Does it make a difference that lucent involves the court reviewing a jury verdict, whereas this case involves the court reviewing a summary judgment decision? [00:13:57] Speaker 01: I think the standards are very similar. [00:13:59] Speaker 01: There just has to be some evidence, in a summary judgment context, to create a genuine issue of material fact that at least one person, one time, practiced the method, which I think is very similar. [00:14:11] Speaker 01: In an infringing way. [00:14:11] Speaker 01: In an infringing way, yes. [00:14:13] Speaker 01: All of our proofs are directed only to the infringing most. [00:14:16] Speaker 04: Well, actually, let me ask you about that then. [00:14:18] Speaker 04: When you've got the, this is the expert deposition, and he highlights the respondents and the questions and whatever. [00:14:25] Speaker 04: Look at 47404. [00:14:45] Speaker 04: Because that's where these are the questions that were, these were the definitions that I think were given in connection with the questions that were asked. [00:14:55] Speaker 01: These were the written interrogatories served on about 30 customers closely supervised by the court. [00:15:00] Speaker 01: These were the only questions the court would allow us to ask. [00:15:03] Speaker 04: Okay. [00:15:04] Speaker 04: So looking down at the, but the question, answering the question was predicated on what the definitions are for what we were talking about. [00:15:12] Speaker 04: So look at the question, which I think provides it, line 22 through 25. [00:15:20] Speaker 04: It talks about, let's take one at a time. [00:15:23] Speaker 04: It talks about PPML. [00:15:27] Speaker 04: If we agree, this is a different issue in the case. [00:15:30] Speaker 04: But if we were to agree with the district court's claim construction on that, that's irrelevant. [00:15:34] Speaker 04: That's not infringing anymore, because that's out of the summary judgment, right? [00:15:39] Speaker 01: Well, we dispute that. [00:15:40] Speaker 04: Yes, but let's assume that's a separate issue in the case. [00:15:43] Speaker 04: So let's assume that we agree with the district court's claim construction, and that's out. [00:15:47] Speaker 04: The next reference is, let's skip the PPMLT. [00:15:56] Speaker 04: That can only infringe. [00:16:00] Speaker 04: It has alternate non-infringing uses, right? [00:16:05] Speaker 01: Depends what you mean by that, Your Honor. [00:16:06] Speaker 01: The non-infringing uses are to use JLYT for non-variable data printing. [00:16:11] Speaker 01: We didn't accuse that. [00:16:13] Speaker 01: Are all of our evidence eventually used? [00:16:14] Speaker 01: But wait, but I'm just looking at the questions. [00:16:15] Speaker 04: These were questions that were answered. [00:16:17] Speaker 04: So how would somebody answering these questions know [00:16:21] Speaker 04: that you didn't limit the PDF VT, for instance, and say, which it can only infringe the very data feature is enabled. [00:16:32] Speaker 04: That's not what this question, which refers to these use of [00:16:36] Speaker 01: I don't know if it's on these two pages your honor but the same questions defined variable data printing as printing that involves the Some content that changes and some that stays the same and the saving and the reusing of the bitmaps that was part of the definitions Where is that? [00:16:52] Speaker 01: Don't know if it's on this page, but it was definitely in the questions that were asked of and that's and you said You answered this only if you've done it this way x y and z that was yes until when you start with the premise that the customer understands variable data printing is this is this For jobs that have variable content that changes and uses a saving bitmap feature [00:17:12] Speaker 01: Then the court said, OK, then we're going to define the file types as these five. [00:17:16] Speaker 01: Because any of these five, according to the evidence, our expert's analysis, any of these five, when used for variable data printing, practice the methods. [00:17:25] Speaker 01: And that's never been, that wasn't the court's challenge to our evidence. [00:17:29] Speaker 01: The court accepted that on the summary judgment context. [00:17:31] Speaker 01: And so by saying yes to this question, that is evidence that at least one of these five was used for variable data printing. [00:17:39] Speaker 01: And 63% of the respondents [00:17:42] Speaker 03: Said yes, they use one of these five for variable data printing on these machines Where do you think in the record we're going to see that definition for very data variable data printing I can find it. [00:17:56] Speaker 03: It's gonna take me a moment, but I mean if you want you can find it while your Opposing council is top are arguing, but just I think it might be helpful I [00:18:06] Speaker 01: I will. [00:18:07] Speaker 01: Thank you, Your Honor. [00:18:07] Speaker 04: But you said one of those. [00:18:09] Speaker 04: So the answer would have been, we did use one of these five. [00:18:13] Speaker 04: Well, what if they all meant the PPML? [00:18:15] Speaker 04: And what if, hypothetically, on that question, we found there was no infringement because of the claim constraint? [00:18:20] Speaker 01: Well, there's a tremendous amount of additional evidence of using things beyond PPML. [00:18:24] Speaker 01: There's direct other testimony, direct depositions of five or six customers. [00:18:29] Speaker 01: Those are identified in our brief that use JLite, PDF, optimized. [00:18:35] Speaker 01: Interrogatory response from HP, admitting use of optimized PDF. [00:18:38] Speaker 01: None of that stuff is in the record. [00:18:41] Speaker 01: It is in the record, Your Honor. [00:18:42] Speaker 04: In the appendix? [00:18:44] Speaker 01: Yes. [00:18:44] Speaker 01: I thought we had just one. [00:18:47] Speaker 04: I'll forget your brief for a moment. [00:18:49] Speaker 04: In the appendix, I recall having one document. [00:18:52] Speaker 04: You've got the expert stuff, Mr. Gafford, right? [00:18:55] Speaker 01: Well, that's what I was referring to, that Mr. Gafford's portions of his report cite to all of this evidence. [00:19:01] Speaker 01: Which customer said what about which design? [00:19:04] Speaker 03: But we don't have, just to make it clear, do we have any of those underlying documents that the expert cited? [00:19:10] Speaker 01: no you have the citations that the expert made to those documents and what that evidence established which was for example that this particular customer admitted using JLite and PPML so on and so forth. [00:19:22] Speaker 01: We have the JOR report evidence which is a report HP does that shows that the majority of their customers use at least three of these file types. [00:19:32] Speaker 01: We have these deposition on written questions which show that 63 percent responded to using at least one of the five file types possibly [00:19:40] Speaker 01: more than one. [00:19:41] Speaker 03: I take it your view is that even though we don't have the underlying documents, we're supposed to take your expert's description of those documents and view it in your favor? [00:19:54] Speaker 01: It wasn't just a description. [00:19:56] Speaker 01: These were record citations to the exact... But we don't have the record citations. [00:20:01] Speaker 03: From what I understand you're saying, the district court judge did not either. [00:20:05] Speaker 01: the district court was proper that evidence but said that expert reports alone was which didn't want the underlying citations to the documents that the expert had relied on. [00:20:18] Speaker 01: We could have submitted that. [00:20:19] Speaker 01: I requested to submit that in the district court at the oral argument. [00:20:22] Speaker 01: The court said no. [00:20:24] Speaker 01: And that wasn't the basis for the court finding summary judgment. [00:20:28] Speaker 01: The court basically just didn't apply [00:20:30] Speaker 01: Lucent and Toshiba and acknowledge all of the circumstantial evidence that goes in addition to this direct evidence of direct evidence. [00:20:40] Speaker 04: And did you make all of that argument in New York? [00:20:42] Speaker 04: As I said, when I read your opposition to the summary judgment motion, it had a cease site to Lucent, but not for purposes of parsing circumstantial versus direct evidence. [00:20:53] Speaker 01: Well, we cited the evidence. [00:20:55] Speaker 01: We made the point that this was enough direct and circumstantial evidence, that circumstantial evidence [00:21:00] Speaker 01: the title of our section on this in our brief is that we have adequate direct and circumstantial evidence that these features are actually have been used. [00:21:11] Speaker 01: And that was the title of that section as I recall in our brief. [00:21:16] Speaker 01: We may not have cited Lucent specifically but that is the proposition of law that we were relying on. [00:21:22] Speaker 04: Can I just take it page forty five four ten. [00:21:27] Speaker 04: I think this is [00:21:29] Speaker 04: a portion of your damages expert report, which you rely on in your briefing, right? [00:21:37] Speaker 01: Yes. [00:21:38] Speaker 04: And where it says, at the end of it, the last bullet point says, 17 respondents confirmed that they used one or more of the accused file types. [00:21:52] Speaker 04: But again, that could be non-infringing uses, right? [00:21:56] Speaker 04: So that doesn't help us, right? [00:21:58] Speaker 01: Well, for VDP printing, the question that the respondents were asked to answer, again, was, well, let me read you what the sentence says. [00:22:05] Speaker 04: All the sentence says is 17 respondents confirm that they use one or more of the accused file types or use the infringing VDP methods. [00:22:16] Speaker 04: So that's an or. [00:22:17] Speaker 04: Or both. [00:22:22] Speaker 04: So 17 respondents could have just confirmed that they used one of the accused file types full stop. [00:22:31] Speaker 04: Is that the way I should read the sentence? [00:22:32] Speaker 04: I don't really understand the sentence. [00:22:34] Speaker 01: I don't believe so. [00:22:35] Speaker 01: That's a reference to the fact that you can use these file types for non-VDP printing. [00:22:39] Speaker 01: And some of the customers had indicated that they don't do VDP printing. [00:22:43] Speaker 01: But for those that do VDP printing, when they do it with any of these five accused file types, those are the infringing modes. [00:22:51] Speaker 01: and what Miss Riley was doing was confirming. [00:22:54] Speaker 04: Where does the sentence say that? [00:22:55] Speaker 04: Look at page 45, 410. [00:23:01] Speaker 01: She says a paragraph, if I may, Your Honor, she says a paragraph 93, that the data shows that the accused VDP. [00:23:07] Speaker 01: I'm sorry, where are you in the page? [00:23:08] Speaker 01: I'm sorry, paragraph 93, which is that her conclusion is that the accused VDP is widely used to make HP's customers with 63%. [00:23:20] Speaker 01: of the respondents confirming that they use an accused method or a file type or both. [00:23:26] Speaker 01: And I'm not sure why she worded it that way. [00:23:29] Speaker 03: Why would it be, this is similar to what Judge Proce was just talking about. [00:23:33] Speaker 03: It says 63% used an accused method or file type. [00:23:38] Speaker 03: But we've already established that just because you use the file type doesn't mean that you're necessarily infringed, right? [00:23:44] Speaker 01: I'm not sure exactly why she worded it that way. [00:23:46] Speaker 01: I think she meant to say that [00:23:49] Speaker 01: These accused methods, and it was always discussed throughout the cases, the accused methods are the use of these file types for VDP. [00:23:57] Speaker 01: And so to say 63% use the accused method or file type or both is, yeah, it's an awkward way of saying it. [00:24:04] Speaker 01: But her whole point and the data shows that 63% said we do variable data printing, and we do it with one of these five file types. [00:24:11] Speaker 01: That's how the question was set up. [00:24:12] Speaker 03: Did the district court judge prohibit you from submitting some of the underlying documents, including, you know, [00:24:18] Speaker 03: Expressly said you could not provide it [00:24:21] Speaker 01: we asked for i think twenty four questions and they were very logically laid out to get to a more granular level of detail and the district court only allowed us five. [00:24:30] Speaker 01: There were strenuous objections from HP that this was too burdensome on the customers. [00:24:33] Speaker 01: We wanted to know things like how much printing did you do with each file? [00:24:37] Speaker 03: That's not my question. [00:24:38] Speaker 03: I want to make sure you understand my question. [00:24:40] Speaker 03: Earlier you said that you didn't submit the underlying documents because the district court judge didn't want them. [00:24:46] Speaker 03: I'm asking that the district court judge tell you you could not submit [00:24:50] Speaker 03: the evidence, including the written question depositions and different materials that are cited in paragraph 93, for example. [00:24:58] Speaker 01: She never said we cannot submit them. [00:24:59] Speaker 01: We filed our opposition brief at oral argument. [00:25:02] Speaker 01: I asked if the court would like us to supplement that with the underlying documents that the experts are citing too. [00:25:09] Speaker 01: And as I recall, she said, no, I don't want you to do that. [00:25:14] Speaker 04: Can I just follow up to a few things you said? [00:25:16] Speaker 04: Your expert Mr. Gafford agreed in his deposition that variable data printing for JLYT can be done in non fringing ways. [00:25:27] Speaker 04: Did he not? [00:25:28] Speaker 04: No, he did not. [00:25:42] Speaker 04: The question, and do you believe that, do you know that JLYT channels are not used in every JLYT BDP job? [00:25:52] Speaker 04: Do you know that answer? [00:25:54] Speaker 04: Well, of course not. [00:25:57] Speaker 01: Yes, he did say that, but his opinion is that the infringing modes either use channels or something else called the JLite elements. [00:26:06] Speaker 01: His opinion, so that question was at Red Herring. [00:26:09] Speaker 01: It doesn't matter if they use channels or elements. [00:26:11] Speaker 01: There's two ways within JLite to define the variable data areas. [00:26:15] Speaker 01: And we've addressed this in our appeal brief. [00:26:17] Speaker 01: He was simply acknowledging that there's two ways to do it. [00:26:20] Speaker 01: They don't have to use the channels. [00:26:22] Speaker 01: That is one way. [00:26:24] Speaker 01: But the elements are another way of defining a variable data area. [00:26:28] Speaker 01: His opinion was when you use JLite to practice VDGB jobs, there's no way around it. [00:26:33] Speaker 01: You infringe these claims. [00:26:34] Speaker 04: I guess it just takes me back, just to finish up, to 47-401, which I thought was the definition, the definition you were providing in the context of all these questions. [00:26:46] Speaker 04: And I don't see at least, you said there's more and I'm not seeing where that does anything beyond covering non-infringing uses and infringing without the variable data feature. [00:27:00] Speaker 04: We are way beyond our [00:27:06] Speaker 00: We've been speaking about LUSA and you rely heavily on that case. [00:27:12] Speaker 00: Do you have any other type of authority that we can look at which stands for the proposition that circumstantial evidence can support a finding of direct infringement as to a specific customer? [00:27:28] Speaker 00: Am I wrong? [00:27:29] Speaker 00: Here we had no identification of a specific customer. [00:27:33] Speaker 01: No, I strongly disagree with that, Your Honor. [00:27:35] Speaker 01: We have many specific customers identified. [00:27:37] Speaker 01: We have Fort Dearborn. [00:27:40] Speaker 01: We have... As a direct infringer. [00:27:44] Speaker 01: Yes, as infringing. [00:27:45] Speaker 00: As a direct infringer. [00:27:46] Speaker 01: As a direct infringer. [00:27:47] Speaker 01: We have admissions by HP and their interrogatory answer of certain customers using the optimized ETF. [00:27:52] Speaker 00: Well, if you had that, why is it circumstantial? [00:27:54] Speaker 01: That evidence is direct. [00:27:56] Speaker 01: That evidence is direct. [00:27:57] Speaker 01: We submitted both direct [00:27:59] Speaker 01: as well as circumstantial. [00:28:01] Speaker 01: There are hundreds of customers who use these indigo machines. [00:28:04] Speaker 01: We couldn't possibly take discovery of all of them. [00:28:06] Speaker 01: We're only permitted these five questions of 30. [00:28:09] Speaker 00: So both the circumstantial of them. [00:28:11] Speaker 00: Excuse me. [00:28:12] Speaker 00: Was not the district court opinion based on that the direct infringement was identified or the evidence to direct infringement was circumstantial in nature? [00:28:25] Speaker 01: Well, she misinterpreted the evidence in reaching that conclusion. [00:28:29] Speaker 01: I have it at 44508, we identified Bright Format, Schaumut, Strada, Quad, Express Docs, Reichling. [00:28:38] Speaker 01: These are all customers who admitted directly using these models. [00:28:41] Speaker 00: I'm asking about the district court opinion. [00:28:42] Speaker 01: Yes. [00:28:45] Speaker 01: I'm sorry, Your Honor. [00:28:45] Speaker 01: She said there was no direct evidence of PDFVT, no direct evidence of PPMLT. [00:28:54] Speaker 01: And in that context, she said it was no infringement. [00:28:57] Speaker 01: And her error there was not recognizing. [00:28:59] Speaker 04: Well, she says she doesn't say use the term direct evidence. [00:29:01] Speaker 04: She said because the plaintiff provided no evidence. [00:29:04] Speaker 01: Well, no evidence, yes. [00:29:06] Speaker 01: OK. [00:29:06] Speaker 01: But the record shows that we provided the circumstantial evidence because that spans all five file types. [00:29:11] Speaker 01: Then for J-Lite and PDF optimized, I think she acknowledged there was plenty of direct evidence there. [00:29:18] Speaker 01: That's where she said, well, [00:29:20] Speaker 01: But that evidence just shows that they could have used optional features. [00:29:23] Speaker 01: And that was wrong as well, because for the infringing methodology, which is the variable data printing, those features aren't optional. [00:29:31] Speaker 01: They have to designate the variable data area, the static data area, and then the machine saves and reuses the bitmaps. [00:29:37] Speaker 01: And that's what our experts have heard. [00:29:38] Speaker 03: And that is except for JLite and the quote from your expert about how channels are just one way to introduce variable data, right? [00:29:48] Speaker 01: Well, channels or elements, in his opinion, which we have proffered, is that either use of JLite channels or use of JLite elements to specify the variable data area falls within the claim. [00:29:59] Speaker 01: So he was just explaining that there's two ways to do it within JLite. [00:30:02] Speaker 01: Two infringing ways. [00:30:03] Speaker 04: They have to be enabled. [00:30:05] Speaker 01: Jaylight is always enabled that doesn't have this up and which is which are the ones were have it were which are disabled by default PDF okay and PDF slash so what was your so-called what was your circumstantial evidence for those well both are supported by the machines they actually engaged another company to develop a specific RIP processor to do that and they've extensively marketed it there's instructions [00:30:29] Speaker 01: There's demonstrations. [00:30:30] Speaker 01: There's direct customer training in Georgia on site. [00:30:33] Speaker 01: There's admissions by HP and their interrogatories of customers actually using the optimized feature turned on. [00:30:39] Speaker 01: There's the... Wait, wait. [00:30:40] Speaker 04: Tell us that again. [00:30:41] Speaker 04: What was the last thing? [00:30:42] Speaker 04: That there's evidence that customers actually used it? [00:30:45] Speaker 01: HP's interrogatory answers admit that customers ran variable data printing jobs with the optimized feature turned on. [00:30:53] Speaker 01: Those interrogatory responses are at 45,796 through 45,800 in the appendix. [00:31:00] Speaker 01: We have evidence that they have demonstrated and trained customers on how to use the optimized feature. [00:31:06] Speaker 01: There's a week-long training course that customers can attend, and they get specific instruction on how to use the optimized feature. [00:31:13] Speaker 01: This is the kind of evidence that is very powerful circumstantial evidence. [00:31:18] Speaker 01: If I could quickly answer Judge Duran's earlier question about the case law, I do believe the Conball case, which comes after Lucent, was a summary judgment case, Your Honor. [00:31:27] Speaker 01: And in that context, the court, again, reaffirmed [00:31:30] Speaker 01: the principle that evidence such as press releases about the accused features, instructing end users, distributing tools that could be used to support the accused features, and the expert analysis of how that was enough evidence to avoid summary judgment. [00:31:46] Speaker 01: We have more than enough. [00:31:47] Speaker 04: Was Conval a non-precedential opinion? [00:31:53] Speaker 01: I don't know, Your Honor. [00:31:53] Speaker 01: I see it's cited in the Fed Appendix, so it could be. [00:31:55] Speaker 04: Well, how is it cited as an APPX? [00:31:57] Speaker 01: It's cited as an APPX. [00:32:00] Speaker 04: Which means it's not residential, correct? [00:32:04] Speaker 01: Yes. [00:32:04] Speaker 01: Understood. [00:32:07] Speaker 00: Is that it? [00:32:07] Speaker 00: Any other cases? [00:32:09] Speaker 01: Well, the Lucent case, of course, Toshiba supports us, which follows Lucent. [00:32:16] Speaker 01: There were two modes of reading the data to the DVD. [00:32:18] Speaker 01: And the French tried to argue that that meant you had to prove it at a very detailed level. [00:32:25] Speaker 01: And the court said, no, instructions and things of that nature were enough evidence to prove it. [00:32:31] Speaker 01: And that was, again, a summary judgment issue. [00:32:34] Speaker 01: It precluded summary judgment, because it was circumstantial evidence that supported that these features are actually used. [00:32:39] Speaker 04: But didn't, in the Toshiba case, didn't the court try to distinguish between, as I started saying 10 minutes ago, between Fujitsu and Lucent by saying that in Fujitsu, in this case, we're going with Lucent because it was not disabled by default, whereas in Fujitsu, it was. [00:33:01] Speaker 01: The court made the observation that in Fujitsu, the feature was disabled by default. [00:33:06] Speaker 01: I agree with you, Your Honor. [00:33:07] Speaker 04: And in Toshiba, they made the point that theirs is the infringing product. [00:33:13] Speaker 04: There was not disabled by default. [00:33:16] Speaker 04: I read it. [00:33:17] Speaker 04: Tell me if you disagree. [00:33:18] Speaker 01: I'm sure that's correct. [00:33:19] Speaker 01: But again, our infringement evidence regarding the features that can be turned off was only directed to when they're turned on. [00:33:27] Speaker 01: We have admissions of customers [00:33:29] Speaker 01: Using that the PDF with the optimized feature turned on that that is and we also have incredible amount of circumstantial evidence on that one That's the whole point of this. [00:33:40] Speaker 04: I guess I'm having a hard time. [00:33:41] Speaker 04: Is this all in your brief? [00:33:42] Speaker 04: I mean, I was your brief a couple times, but do you have citations to the record where you say you have direct evidence of a customer using it with all this stuff turned on? [00:33:54] Speaker 01: We have HP's interrogatory answers at 45796 through 4580 that established customers using it with the optimized feature turned on. [00:34:05] Speaker 01: That's one example. [00:34:07] Speaker 01: We have a bright format, a deposition of bright format that admitted using the optimized PDF feature. [00:34:15] Speaker 01: That's at 44508. [00:34:17] Speaker 01: Well, that's the Gafford report referring to that evidence. [00:34:23] Speaker 01: a straw poll, which is a customer survey, which is also relevant evidence under the case law, that 63% of the respondents indicated that when they do variable data printing, they use the optimized PDF feature. [00:34:37] Speaker 01: 63%. [00:34:38] Speaker 01: That was in Ms. [00:34:39] Speaker 01: Riley's report. [00:34:40] Speaker 01: That's the POTI BDP workflow straw poll. [00:34:42] Speaker 01: That's a customer survey. [00:34:44] Speaker 01: Customer survey evidence is the type of evidence that the case law has acknowledged is enough to get over this hump at summary judgment of showing [00:34:52] Speaker 01: that the features were actually used. [00:34:54] Speaker 01: That's at APPX 45493. [00:34:58] Speaker 01: So we believe we had more than enough evidence to get past this relatively low hurdle of avoiding summary judgment for an issue like this. [00:35:13] Speaker 01: I know I'm way over my time. [00:35:14] Speaker 04: You're way over, but that's our fault more than yours. [00:35:17] Speaker 04: So will we restore summary but let's hear from Mr. Roberts. [00:35:20] Speaker 04: Thank you very much. [00:35:31] Speaker 02: Edward Reinis, and may it please the court. [00:35:33] Speaker 02: Let me just first address Judge Raina's good question about the law. [00:35:37] Speaker 02: Under the trilogy of Anderson, Sellotax, and Matsushita, the legal standard is exactly the same for reviewing a jury verdict under Rule 50 versus a Rule 56 motion. [00:35:53] Speaker 02: Would a reasonable juror have a substantial evidentiary basis? [00:35:57] Speaker 02: The first thing I'd like to point out is that I think when you look at the Lucent case, these cases all have to be decided on their own facts, because what you can infer from marketing materials is going to be very different. [00:36:10] Speaker 02: In this case, the different formats that you could use are at least 20 listed. [00:36:16] Speaker 02: I think there's a lot more, but TIFF, GIF, JPEG, Adobe, [00:36:24] Speaker 02: pcs post script i mean there's so many of you so to apply that to the lucent example in concrete terms in lucent it's the date picker right it's the calendar that comes down that everybody gets you've got tens of millions and probably hundreds of millions of people with the date picker and the issue was would some number of people that use the actual date picker to pick their dates for something or not here it's not like you have this fixed [00:36:49] Speaker 02: format that people are going to use. [00:36:51] Speaker 02: They can use 20 or more. [00:36:53] Speaker 02: And then within them, Your Honor, Judge Prost said it was a very good eye to pick up on the testimony of Gafford regarding channels. [00:37:01] Speaker 02: In fact, channels are the basis for the theory of infringement of Gafford. [00:37:07] Speaker 02: And he said, the question to him was, well, would you have to use channels? [00:37:11] Speaker 02: And he goes, of course not. [00:37:13] Speaker 02: All these languages have numerous. [00:37:15] Speaker 04: Well, let me ask you, Mr. Rice, if we're getting really into the evidence, let me ask you. [00:37:19] Speaker 04: Sure. [00:37:20] Speaker 04: relied fairly heavily on HPs and derogatories. [00:37:24] Speaker 04: So what do you have to get? [00:37:26] Speaker 04: You want to tell us where they are in these? [00:37:29] Speaker 02: Yes. [00:37:29] Speaker 02: That's at 457997. [00:37:31] Speaker 02: The relevant part is 798-799. [00:37:34] Speaker 02: OK. [00:37:34] Speaker 04: Give me a second, because I've got a lot of stuff to do. [00:37:37] Speaker 04: Of course. [00:37:38] Speaker 04: 45. [00:37:39] Speaker 02: I mean, the amount of discovery that was taken, you'll see from this question to answer. [00:37:44] Speaker 02: how thorough it was. [00:37:45] Speaker 04: I'm sorry. [00:37:46] Speaker 04: Give me the citation again. [00:37:47] Speaker 02: Sure. [00:37:47] Speaker 02: 45799 is really the most relevant page. [00:37:52] Speaker 02: You could start at 798. [00:37:54] Speaker 02: OK. [00:37:54] Speaker 04: All right. [00:38:03] Speaker 02: And so you could see the amount of work HP went to go through all of its files, all its troubleshooting files for all these years. [00:38:13] Speaker 02: And what it said is, [00:38:15] Speaker 02: It is aware of select few customers who may have attempted to use the optimized PDF. [00:38:20] Speaker 02: That's on 45798. [00:38:23] Speaker 02: And then what they did was they called and they said they were having a problem using it. [00:38:26] Speaker 02: And that was only two customers over the course of eight years. [00:38:30] Speaker 02: So if there's 300, you know, hundreds of customers here using presses for eight years with different jobs coming in every day, and the total was two troubleshooting instances, [00:38:43] Speaker 02: where they said they attempted and couldn't use it, that does not establish an absolute. [00:38:48] Speaker 03: Well, doesn't this evidence also say that this feature, that customers don't usually identify to HP what print types they're using and how they're using it, that they consider that confidential? [00:39:01] Speaker 03: And so it says the use of this feature is anecdotal secondhand, right? [00:39:07] Speaker 02: For the troubleshooting, yeah. [00:39:08] Speaker 02: I mean, I assume if they're troubleshooting, they have to reveal what they're using. [00:39:13] Speaker 03: Can I ask you something else about your characterization of losing case? [00:39:16] Speaker 03: There's been lots of different discussion today about how to distinguish that case. [00:39:20] Speaker 02: Yes. [00:39:20] Speaker 03: And in your brief, you take the tact that the court held that if circumstantial evidence were the only evidence that performed the claim method, it would have reversed the jury. [00:39:30] Speaker 02: Yeah, I don't know if it's wrong. [00:39:33] Speaker 02: I regretted it when I read it so I think lucent says where you have a feature on something like outlook that hundreds of millions of people are using it [00:39:46] Speaker 02: And everyone's getting trained on how to use it, that there's an inference that at least one person used it. [00:39:52] Speaker 02: And that seems reasonable to me. [00:39:53] Speaker 02: I don't have a bone to bet on. [00:39:54] Speaker 03: So it's that for the circumstantial evidence. [00:39:57] Speaker 03: In that case, it was the circumstantial evidence that actually worked. [00:39:59] Speaker 02: That's what I was going to say. [00:40:00] Speaker 02: Yes. [00:40:00] Speaker 02: OK. [00:40:00] Speaker 02: All right. [00:40:00] Speaker 02: Yeah. [00:40:01] Speaker 04: But why is that different than here? [00:40:03] Speaker 04: Houston says, even though the opinion is a little unusual, it says was just barely sufficient. [00:40:14] Speaker 04: But it was sufficient. [00:40:15] Speaker 04: And they just say, well, [00:40:17] Speaker 04: There are only two people, more people used it. [00:40:20] Speaker 04: And here you do have on these two pages, you're talking about two customers who may have used a feature, and then you said may have, and then you have may have attempted. [00:40:33] Speaker 04: May have attempted. [00:40:35] Speaker 04: So you're saying that's less than lucent? [00:40:38] Speaker 02: Yeah, I think let me just if I could just explain the record and why I think it's so different from lucent Just if I could just have a minute or two for that. [00:40:46] Speaker 02: I really would appreciate it So first you have 20 different file types that could be used then you have different D of these which is basically what's the equipment that's running the software and I would I would encourage referring to four eight four nine six eight three And this is [00:41:07] Speaker 02: that there's multiple different DFE's that could even be used. [00:41:11] Speaker 02: So, 49683. [00:41:12] Speaker 02: Sorry, just write a bit here. [00:41:22] Speaker 04: This is who? [00:41:25] Speaker 04: Who's Mr. Maloney? [00:41:27] Speaker 02: This is Mr. Maloney. [00:41:29] Speaker 02: And he goes through [00:41:31] Speaker 02: And he's arguing, and his point is that there's the SmartStream production ProCrint server. [00:41:38] Speaker 02: You'll see that in the second full paragraph at line 13 and 14. [00:41:42] Speaker 02: And then when you go below, you'll see there's the ASCO DFE at 21. [00:41:47] Speaker 02: And Mr. Muller says they did a teeny bit of discovery and were able to confirm with some follow-up that it doesn't practice the methods here. [00:41:59] Speaker 02: So not only do you have 20 different formats, you have different DFE's that can be used, and there's no establishment in any of the evidence. [00:42:07] Speaker 02: in the two troubleshooting calls over eight years that those people were using the ESCO or the SmartStream Production ProPrint server. [00:42:14] Speaker 03: I'm not appreciating the significance of DFE. [00:42:17] Speaker 03: I saw that in your brief several times you made that point. [00:42:20] Speaker 03: And I'm not understanding why that makes a difference with respect to the circumstantial evidence presented here. [00:42:27] Speaker 02: So the DFE runs the software. [00:42:29] Speaker 02: It's not the software itself. [00:42:31] Speaker 02: It's the [00:42:33] Speaker 02: It's a platform for the software. [00:42:35] Speaker 02: And all you need to really know is that Mr. Maloney, who's right here at the summary judgment hearing, confirmed that the DFE, that the ESCO DFE, which they took discovery on, doesn't practice the methods here. [00:42:50] Speaker 02: I don't see what else you need to know. [00:42:52] Speaker 02: That's talking about the, they dropped it from infringement. [00:42:55] Speaker 02: They didn't know, and this is a point we made in our briefs and below, that even as to the DFE, [00:43:02] Speaker 02: The only one they're accusing is the SmartStream Production Pro print server, and Mr. Maloney won't tell you that's the only DFE that can be used. [00:43:11] Speaker 02: So even when those two customers called in and said, we can't get this optimized PDF feature to work, we don't know whether they were using X objects, which is the theory of why PDF infringes, and that's of document. [00:43:24] Speaker 02: And then we don't know even if they were using the DFE. [00:43:27] Speaker 02: But really, the perspective that I want to give you is not only is there 20 different formats that can be used, that in the testimony that Judge Prost highlighted about Jaylight, it was like, well, would you only use channels? [00:43:41] Speaker 02: No, of course. [00:43:42] Speaker 02: In all these standards, there's a gazillion things you can use. [00:43:44] Speaker 02: They're just languages that you can use fungibly. [00:43:48] Speaker 02: lived with this case for years, seven cases that were given to her by the MDL panel. [00:43:53] Speaker 02: And she understood that there's so much configurability that goes into it that can't be denied. [00:43:59] Speaker 04: Sir, I just have to follow up on the DFE issue. [00:44:05] Speaker 04: Yeah. [00:44:07] Speaker 04: Are you positing that as an alternative ground for affirmance? [00:44:11] Speaker 04: Because I'm not seeing where the district court relied on any of that. [00:44:15] Speaker 02: The district court didn't cite the DFE. [00:44:18] Speaker 02: What the district court said is, you've done all this discovery, which is the point that I really want to ultimately get into, of a relatively small universe, especially compared to something like Lucent. [00:44:29] Speaker 02: And you haven't given me one example of an actual print job [00:44:33] Speaker 02: an actual software code run, an actual circumstance with an actual customer where it's happened. [00:44:39] Speaker 00: Now, Mr. Maloney did state... Doesn't Lucid tell us that you don't have to give that information? [00:44:45] Speaker 02: I think Lucid has to be contextual. [00:44:47] Speaker 02: It can't be that in every situation where you say, what if something said you could use one of 10,000 different options and there was only 10 customers. [00:44:56] Speaker 02: And you encourage people. [00:44:57] Speaker 00: So what does Lucent say that the circumstantial evidence can point to a mere possibility or does it have to point to a probability? [00:45:05] Speaker 02: All of this is what's a reasonable inference, okay, which requires judgment. [00:45:09] Speaker 02: And Chief Judge Lynn exercised judgment as to when you could say a verdict would be supported by this. [00:45:15] Speaker 02: And the point here is, and this is the perspective I want to give is, there's hundreds of customers, not hundreds of millions. [00:45:23] Speaker 02: So it's a finite universe. [00:45:25] Speaker 02: They selected five. [00:45:27] Speaker 02: They don't argue to you that any of the five use it except for Dearborn, which they dismissed with prejudice. [00:45:33] Speaker 02: So it can't be the direct infringement. [00:45:35] Speaker 02: Who's eliminated? [00:45:36] Speaker 02: They dismissed it. [00:45:37] Speaker 02: If that was their best example, it's been out of the case. [00:45:40] Speaker 02: So they picked their best five. [00:45:43] Speaker 02: They don't allege to you any of their best five customers that they actually sued, that they did party discovery on, depositions, documents, going through their files, that any of them use anything. [00:45:54] Speaker 02: Zero. [00:45:55] Speaker 02: So that's your first red flag, okay? [00:45:57] Speaker 03: But again, we're going back to Lucent. [00:45:59] Speaker 03: Lucent said it was very weak evidence, but they said circumstantial evidence that one party used it would be enough to support the jury verdict. [00:46:10] Speaker 02: Understood. [00:46:11] Speaker 02: So then they sued five companies, none used it. [00:46:14] Speaker 02: by any account. [00:46:15] Speaker 02: The only thing that was just cited, it's not in the briefs, was Fort Dearborn. [00:46:18] Speaker 02: Fort Dearborn was dismissed with prejudice. [00:46:20] Speaker 02: How could they possibly be relying on that? [00:46:22] Speaker 02: Then they wanted to do all this additional third party discovery because none of the parties were using any of the accused methods in any way that they could show infringement. [00:46:32] Speaker 02: And they could have done hundreds of the written interrogatories. [00:46:36] Speaker 02: They chose to do 30. [00:46:38] Speaker 02: They wrote the questions. [00:46:39] Speaker 02: The questions that weren't given were rejected because they were improper. [00:46:43] Speaker 04: What about Lucent does rest a bit on instructions? [00:46:47] Speaker 04: And your friend here says that there were training and all kinds of instructions about how to use this in an infringing way, yada, yada, yada. [00:46:55] Speaker 04: Is that correct? [00:46:56] Speaker 02: It is not correct in the sense that none of those, there's obviously marketing materials about here's 20 different formats you can use. [00:47:02] Speaker 02: There's no marketing material that says use JLite with channels on the ProPrint DF80 or anything remotely resembling that. [00:47:12] Speaker 03: What about the expert report that kind of takes those quotes and puts them together? [00:47:17] Speaker 03: are we supposed to give that expert report, weigh it favorably on summary judgment? [00:47:23] Speaker 02: I just think it's got to be contextual what's a reasonable inference. [00:47:27] Speaker 02: They did so much discovery here. [00:47:29] Speaker 02: So they had five customers, they zipped out on that. [00:47:32] Speaker 02: Then they picked out of hundreds, they picked the 30 best. [00:47:35] Speaker 02: We give them all our job origin reports, which tells you basically what the customers are running, which we have some information about when they're variable or not. [00:47:42] Speaker 02: They selected 30 and [00:47:45] Speaker 02: They've given you essentially nothing out of what came with those written the drug toys aren't even in the record the answers Well, then they could have done come up with circumstantial evidence [00:47:55] Speaker 02: But they could have done, but within the universe, I don't know what to say, other than within the universe of just a few hundred customers where they had, you did so much discovery. [00:48:05] Speaker 02: You looked at the answer we did. [00:48:06] Speaker 02: We went through all of it. [00:48:07] Speaker 00: This is what I'm getting to, Mr. Ryan. [00:48:09] Speaker 00: I mean, where do we draw the line? [00:48:11] Speaker 00: I think circumstantial evidence can point to a possibility. [00:48:16] Speaker 00: Anything's possible, though. [00:48:18] Speaker 00: And circumstantial evidence can also be argued to point to a probability, meaning that it's more probable than not that something occurred, that that thing occurred. [00:48:27] Speaker 00: Where do we draw the line? [00:48:30] Speaker 02: I think it's easy here. [00:48:31] Speaker 02: There's different DFE's that are used. [00:48:33] Speaker 02: There's an admission that there's a DFE that doesn't infringe at all, the ASCO DFE, and that we've gone through that. [00:48:40] Speaker 02: There's no evidence that anyone used the pro DFE. [00:48:46] Speaker 02: with Jaylight using channels, because their own expert said, well, with Jaylight, yeah, there could be all kinds of other things. [00:48:54] Speaker 02: Of course there are. [00:48:54] Speaker 02: I don't know. [00:48:55] Speaker 02: The point being that they had so much that they could have done follow-up oral depositions of any of the customers that they did the 30 written depositions of. [00:49:05] Speaker 02: They could have done more subpoenas. [00:49:08] Speaker 02: The fact that they sued five companies that use PNUs doesn't require any of that. [00:49:13] Speaker 02: Well, I gave you an example that goes to an extreme, which is if there's 10 customers and you say there's 1,000 different formats that we support, and then you write out how you support each of the 10,000 formats and say all of them can be configured in multiple ways, and here's how you do that. [00:49:30] Speaker 02: No, it would be a horrible inference from that marketing material that anyone used it. [00:49:35] Speaker 02: So you have to use judgment. [00:49:36] Speaker 02: It can't be just there's marketing material. [00:49:39] Speaker 02: Ergo, there's a direct infringement. [00:49:41] Speaker 02: You have to look at the record in each case. [00:49:43] Speaker 02: Chief Judge Lynn is extremely sophisticated and experienced. [00:49:47] Speaker 02: They did massive discovery. [00:49:49] Speaker 02: They didn't even put the written interrogatories into the record. [00:49:54] Speaker 02: The first site, you said, you have direct evidence? [00:49:58] Speaker 02: What is it? [00:49:58] Speaker 02: Fort Dearborn. [00:49:59] Speaker 02: Fort Dearborn, they abandoned the case because they didn't have any evidence of it. [00:50:06] Speaker 02: So if there's all these dry holes, it's like, give me one print job that uses this. [00:50:12] Speaker 02: One print job. [00:50:14] Speaker 02: And if they were able to select five companies that they sued that are customers, in Lucent, no customers were sued. [00:50:21] Speaker 02: Party Discovery, expensive, that they're having to reimburse us for. [00:50:27] Speaker 02: then do 30 written deposition questions. [00:50:30] Speaker 02: They could have done 100 if they wanted. [00:50:32] Speaker 02: And they have nothing from that. [00:50:33] Speaker 03: They have maybe... What about for... I'm going to just talk about one example that I think might be the strongest example, which is PDFVT. [00:50:41] Speaker 04: Right. [00:50:42] Speaker 03: And there's a particular company, the name of which I won't mention. [00:50:45] Speaker 03: that there's a couple different things. [00:50:49] Speaker 03: There's the expert report describes evidence showing that that one customer probably used PDF VT with variable printing. [00:50:59] Speaker 03: I think that's at A44508. [00:51:00] Speaker 03: And there's also interrogatory responses, again, talking about the troubleshooting calls. [00:51:07] Speaker 03: Same customer at A45799. [00:51:12] Speaker 03: Why isn't that enough for circumstantial evidence of use? [00:51:15] Speaker 02: Right, so PDFV, this is the probably, so all this drip net fishing, and we're talking about ExpressDocs, I want to address your honor's best case, this is the best, I think this is a good way to do it, is Ed Adcock from ExpressDocs said they use these other things, they probably use PDFVT. [00:51:36] Speaker 02: That doesn't tell you, as Judge Gross pointed out, whether they used the veridative feature. [00:51:42] Speaker 02: PDFVT is a common, [00:51:44] Speaker 02: I'm not denying that. [00:51:46] Speaker 02: Why wouldn't I? [00:51:47] Speaker 02: It's the truth. [00:51:48] Speaker 04: PDFVT's not... But it only infringes if they're using the Veridata. [00:51:52] Speaker 02: Which no one uses. [00:51:54] Speaker 02: That's why the suit against O'Neill was considered improper. [00:51:58] Speaker 02: O'Neill only used PDF. [00:52:01] Speaker 02: That's it. [00:52:03] Speaker 02: And they never once turned on this Veridata. [00:52:06] Speaker 02: They had to drop the case, did it too long, and got charged fees for it. [00:52:10] Speaker 02: No one uses this feature. [00:52:12] Speaker 02: In all the years, there's two people that attempted to do it, and they couldn't do it. [00:52:16] Speaker 02: And we don't know what else. [00:52:17] Speaker 02: We don't know what DFA they were using or anything else. [00:52:20] Speaker 02: So the best example, Judge Dole, and I agree, that's a great pressure test, is what about PDFVT? [00:52:27] Speaker 02: Did someone probably use something but no mention of veradata? [00:52:31] Speaker 02: Is there another? [00:52:32] Speaker 02: Best example? [00:52:34] Speaker 03: I don't know. [00:52:34] Speaker 03: There's for PPML on the same page. [00:52:36] Speaker 03: It talks about variable data. [00:52:39] Speaker 02: None of these are PPMLT. [00:52:42] Speaker 02: So PPMLT, there's no example period. [00:52:44] Speaker 02: That's the one that Judge Lynn said. [00:52:47] Speaker 02: No one's ever shown anyone ever using it. [00:52:49] Speaker 02: So none of these are PPMLT. [00:52:50] Speaker 02: That's out. [00:52:51] Speaker 02: PPML is not infringing because it's variable data area. [00:52:55] Speaker 02: That's out. [00:52:57] Speaker 02: okay so I mean if you go through them you see PPMLT there's no one anywhere you look at their best greatest hit is 44508 which Judge Dole you helpfully pointed out which is their expert reports characterization [00:53:12] Speaker 02: of interrogatory responses that weren't worthy of being submitted to the district court. [00:53:18] Speaker 02: The responses are from 30 parties that they hand-selected as the most likely, based on all the discovery that they did, to be using it. [00:53:25] Speaker 02: And this is a probably they use something without even mentioning very data. [00:53:30] Speaker 02: PPMLT is mentioned nowhere. [00:53:32] Speaker 02: It's out. [00:53:33] Speaker 02: there's no example of someone using that with optimized, not even in the troubleshooting. [00:53:40] Speaker 04: Can I just clarify, and two of the five of these are PPML, and there's another issue in this case that we never got to. [00:53:49] Speaker 04: We were to hypothetically affirm the district court judge on non-infringement. [00:53:53] Speaker 04: Those go out anyway. [00:53:55] Speaker 02: Right. [00:53:55] Speaker 02: And so let's just go through them the way the judge did. [00:53:58] Speaker 02: Let's give Judge Lynn, and it's my fault, not anyone else's. [00:54:02] Speaker 02: Judge Lynn, the courtesy of that. [00:54:03] Speaker 02: Veridata PDF VT, it's never been shown with veridata. [00:54:08] Speaker 02: And I just went through that with Judge. [00:54:09] Speaker 02: So you won't find it anywhere. [00:54:11] Speaker 02: You're not going to find an instance of anyone using it. [00:54:15] Speaker 02: That's with evidence Then you get to Jay light your honor pointed out the channels problem, which is it's optional of course people can do it countless ways and then PDF has the X objects problem in the very data problem That's the four examples that they came up with now the question is through marketing materials that say you can use the [00:54:36] Speaker 02: 20 different GIF, PDF, Microsoft formats. [00:54:41] Speaker 02: You can use whatever you want going into these flexible presses. [00:54:45] Speaker 02: And then you can use different DFE's. [00:54:47] Speaker 02: You're not limited to this one DFE. [00:54:49] Speaker 02: There's no reason no one's going to argue that you are. [00:54:54] Speaker 02: Was it reasonable for the judge to say, bring me one print job? [00:54:59] Speaker 02: Because she was in discovery hearing after discovery hearing. [00:55:02] Speaker 02: Bring me one print job where any of this has been used. [00:55:05] Speaker 02: Bring me one deposition question. [00:55:07] Speaker 02: They chose to inform me the deposition question. [00:55:10] Speaker 02: They could have said, did you use Jaylight? [00:55:11] Speaker 02: Did you use channels? [00:55:14] Speaker 02: Did you use channels like this? [00:55:15] Speaker 02: What DFE did you use? [00:55:17] Speaker 02: They didn't ask that question. [00:55:18] Speaker 02: That's not our fault. [00:55:19] Speaker 02: But yet, 30 customers had to answer the questions. [00:55:22] Speaker 02: So the question is, with that kind of discovery record, and we're not talking about hundreds of millions of customers, with a date picker. [00:55:28] Speaker 02: Of course people use the date picker. [00:55:31] Speaker 02: Someone used the date picker somewhere. [00:55:33] Speaker 02: That's just common sense. [00:55:35] Speaker 02: And we don't check our common sense on this, because it's judgment about what's a reasonable inference. [00:55:39] Speaker 02: On this record, is there a reasonable inference that someone did all these different things? [00:55:43] Speaker 02: No. [00:55:43] Speaker 02: And the judge went through the four of them and explained why. [00:55:46] Speaker 02: There's no showing anyone used PPMLT. [00:55:51] Speaker 02: So it's a supported format. [00:55:52] Speaker 02: Yes, Judge Raina, I confess. [00:55:55] Speaker 02: We support PPMLT. [00:55:58] Speaker 02: We show people, if you want to use PPMLT, you can use it. [00:56:01] Speaker 02: They drifted that threshold in seven different federal cases with free awards for access to discovery and didn't come up with one instance of saying, here's someone using PPMLT. [00:56:14] Speaker 02: So that's a red flag. [00:56:15] Speaker 03: Can I ask you one other question in response to my question to you? [00:56:20] Speaker 03: You really did a good job with some of the other evidence. [00:56:24] Speaker 03: But what about the page A45799? [00:56:29] Speaker 03: And that where it says HP is aware of a select few customers we have attempted to use to optimize PDF and then mentions that one customer. [00:56:38] Speaker 02: Right, this is that in the whole history, two customers attempted to use it and called because they couldn't work it. [00:56:46] Speaker 03: So your point is that from this we shouldn't infer that they were actually using it because they were having trouble and didn't, so we should infer that they didn't in fact use it. [00:56:56] Speaker 02: And that the five companies that they chose that they thought were using PDF with this optimized feature, none of them ever used it. [00:57:03] Speaker 03: How do I know that none of them ever used it? [00:57:06] Speaker 02: Because they had to drop the cases and then they got sanctioned. [00:57:12] Speaker 03: Including that company that we mentioned before? [00:57:15] Speaker 02: Fort Dearborn they didn't get sanctioned on. [00:57:18] Speaker 03: I'm sorry? [00:57:19] Speaker 02: Fort Dearborn they dropped but they weren't sanctioned. [00:57:22] Speaker 02: You haven't seen in the appendix or in their briefing that they said Fort Dearborn used acts. [00:57:30] Speaker 02: I mean, just you would have remembered, oh, let me look at the Fort Dearborn case. [00:57:35] Speaker 02: They didn't make that argument. [00:57:36] Speaker 02: I mean, the arguments they're making now is really Monday morning quarterbacking on what the district court judge, which is she had this record where they got all this discovery. [00:57:44] Speaker 02: And they didn't come forward with even one document showing that all the channels were used or whatever, that the DFE was used. [00:57:52] Speaker 02: that would have shown infringement. [00:57:54] Speaker 02: And it wasn't for lack of opportunity. [00:57:56] Speaker 02: And the complaint about the limitation on the deposition questions is unfair, because they could have tendered any, and this is what they came up with. [00:58:05] Speaker 02: And a bunch of them were deemed inappropriate, and they were. [00:58:11] Speaker 02: So I mean, it's just a matter of if you go through the judge's reasoning, and like I did for each of these things, it is [00:58:21] Speaker 02: very reasonable to conclude that there was no use. [00:58:24] Speaker 04: Can I ask you just to wrap things up a little? [00:58:27] Speaker 02: Sure. [00:58:27] Speaker 04: My colleagues have asked, and we've asked a lot about the Lucent case. [00:58:31] Speaker 04: Is it fair to say that your read of Lucent is it didn't set up black letter law principles that you can infer at least one person used it, if their instructions, yada da, that every case is [00:58:48] Speaker 04: based on the circumstances of that particular case? [00:58:51] Speaker 02: It has to be, because there's too many fact patterns I could spin up in a very short amount of time that would show you how ludicrous that would be if it was just blindly followed. [00:58:59] Speaker 02: It's contextual. [00:59:00] Speaker 02: Here there's hundreds of customers which they did focused discovery on. [00:59:03] Speaker 02: They could have sent those questions out to 300 customers. [00:59:08] Speaker 02: It's not like there was a gazillion people using it. [00:59:10] Speaker 02: And to come up with nothing after all that for the district court to say, OK, enough. [00:59:15] Speaker 02: Show me an example of someone actually using it. [00:59:17] Speaker 02: And on the DFE, we haven't heard any explanation. [00:59:29] Speaker 02: Well, thank you so much for taking so much time for our case, Your Honor. [00:59:32] Speaker 02: Thank you. [00:59:38] Speaker 04: I know you certainly don't, but we will give you three minutes. [00:59:41] Speaker 01: First of all, this issue of the DFE is another red herring. [00:59:50] Speaker 01: That was a DFE that was disclosed later in discovery. [00:59:54] Speaker 01: We looked at it. [00:59:55] Speaker 01: It didn't do what this case is about. [00:59:57] Speaker 01: We agreed to drop it. [00:59:59] Speaker 01: That's not the issue at all. [01:00:01] Speaker 01: The DFE's that were accused are the ones that performed these variable data printing modes using the five file types that we've [01:00:08] Speaker 01: that we have focused our case on. [01:00:10] Speaker 01: All of this discussion of optional features, 20 different formats, none of that's really relevant because we honed our case in on the five file types that infringe when they're used for variable data printing. [01:00:23] Speaker 01: Judge Raina, to your question, I'm quoting Lucent where it says, the standard is, what the Federal Circuit found in Lucent was that more likely than not, one person somewhere in the United States had performed the claimed method. [01:00:37] Speaker 01: I think that's the standard that we assume gives us. [01:00:40] Speaker 01: And that was based on circumstantial evidence. [01:00:42] Speaker 01: What's incredibly unfair is to require a patent owner to have to go take discovery from hundreds of customers when HP put these features in the Indigo machines, heavily marketed them, instructed the customers exactly how to do it, demonstrated it hundreds of times, week-long training sessions, hundreds of them showing exactly how to do it, [01:01:04] Speaker 01: And we do have direct evidence. [01:01:06] Speaker 01: I won't go through it again. [01:01:07] Speaker 01: I know I'm really limited in time here. [01:01:09] Speaker 01: There was direct evidence as well of actual use by actual customers. [01:01:13] Speaker 01: Mr. Reines mentioned the JOR reports. [01:01:15] Speaker 01: What are those? [01:01:16] Speaker 01: Those are HP's reports that show when someone for personalized printing, i.e. [01:01:20] Speaker 01: variable data, uses either JLite, PPML, or PDFVT. [01:01:27] Speaker 01: And the majority of those, the reports show that the majority of their customers have [01:01:32] Speaker 01: have been designated in these JOR reports as doing just that. [01:01:35] Speaker 01: That's direct evidence. [01:01:37] Speaker 01: We have customer surveys. [01:01:39] Speaker 01: That's also relevant. [01:01:40] Speaker 01: Customer surveys on what folks do in the industry show that 63% of customers who have been surveyed who do variable data printing do it with optimized PDF. [01:01:51] Speaker 01: 8% use JLite. [01:01:53] Speaker 01: 32% use PDFVT. [01:01:55] Speaker 01: That's also, I would say that's direct evidence, but at a minimum, it's circumstantial evidence. [01:02:01] Speaker 04: The optimized PDF feature, like let's refer to in 45508, does that even specify the file type? [01:02:10] Speaker 01: Optimized has to be thought of as in addition to the file type, so we have PDF. [01:02:15] Speaker 04: and PDFVT, those are two slightly- The user of the optimized PDF feature, that doesn't signify infringement, right? [01:02:24] Speaker 01: It does, because what we mean by, what I mean, I apologize, what I mean by the optimized PDF is processing PDF files with the optimized feature turned on. [01:02:33] Speaker 04: Well, that's not what it says. [01:02:34] Speaker 04: That's what you say you mean, but that's not what the- What were you referring to? [01:02:39] Speaker 04: I'm on 44, I don't want to take your time. [01:02:41] Speaker 01: 44508 we list yes the various things and it just says user of the optimized PDF feature and Throughout the entire case we refer to the optimized PDF feature is PDF when the optimized feature on the machine is turned on your honor I wanted to answer the question from earlier about the definition of EDP and the customer written deposition questions [01:03:08] Speaker 01: uh... which is it and it's one oh five or eight this is an earlier version of the question seven questions but i believe on that page is where the variable data print job is defined it is question number four and it defines variable data print job as a print job that has uh... elements of a page that may change between one instance of the page and another first requirement conducted using one of the five [01:03:37] Speaker 01: one of the following file types, and it lists those five, and it specifically says with the optimized PDF feature. [01:03:44] Speaker 01: So that was the way we drafted the question that way. [01:03:48] Speaker 01: the court approved the question that way, because everybody understood that gets to the number of our case. [01:03:53] Speaker 01: Anyone who does that, who says yes to that question, has used at least one of the five file types to perform what's accused in this case. [01:04:02] Speaker 01: That is why those customer questions, the 63% responded yes to, is powerful direct evidence, additional direct evidence of infringement. [01:04:15] Speaker 04: OK. [01:04:15] Speaker 04: Colleagues, anything further? [01:04:17] Speaker 04: Thank you very much.