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United States court of appeals for the federal circuit is now open and in session.

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God save the United States and its honorable court.

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Good morning, ladies and gentlemen.

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We have two cases to be argued this morning and two more on the calendar to be decided on the briefs.

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First case to be argued is mass engineered design versus plain assistance.

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2019 13 65.

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Mr. Long, please proceed.

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Thank you, Your Honor, and good morning.

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May it please the court, my name's David Long.

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I'm with the Central Patent Law Firm representing the Appellate Planner System.

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And one thing if you'll indulge me, I'd like to start out first explaining or clarifying some procedural issues that will help understand better this single piece support arm issue for the 331 patent.

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Because this case kind of illustrates some of the problems you get when a transferring court rules on significant issues like claim construction and then sends it to another court that doesn't have that background and context.

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In this case, the plaintiff was originally sued in Texas.

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The Texas court agreed to transfer the case to Oregon, but only after the court construed the claims.

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So one of the issues that came up in claim construction was whether or not a single piece support arm in claim one of the 331 patents

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whether or not that needed to be formed as a single piece, or if it could be an integral piece of several components combined together.

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And at the end of the day, the ultimate agreement and ruling was that, OK, it can be an integral piece, but these pieces need to be permanently joined together.

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Similarly, with Claim 9, the issue was whether or not the ultimate construction was that there is one arm that extends on both sides of the support column,

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as opposed to one arm extending on one side, the other arm extending on the other.

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Why is that important?

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When you look at the planer products, as you may recall, and we have them in pages 23 through 25 of our blue brief, they basically have a central post with two identical arms that have rings on one end.

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And you slide one arm's ring over the post and have it extend in one direction, take the other ring of the other arm, slide over the post, and it extends in the other direction.

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They're two separate pieces.

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They're never permanently joined.

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and you have one arm extending on one side, one arm extending on the other.

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So we should have won based on that claim construction.

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But the court, the case was sent to Oregon and the judge didn't want to peer into that black box claim construction ruling, just kind of took it at face value.

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And so the ruling we ultimately got was the judge looked at a dictionary to see what integral meant and otherwise ruled that when you slide these two arms together,

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And during that moment, they may be integral and meet these limitations, or at least there could be a fact issue of that.

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The mass has taken issue in the opposition paper saying, well, the judge didn't instruct the jury on what integral meant, and we didn't ask for jury instructions on what it meant.

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And that's why it's very important to understand the procedure.

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The court in this case, like most courts do, ruled that

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there would be no evidence or argument contrary to the court's claim instruction.

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And that makes sense, right, to do that.

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But because of that, plainly there wasn't going to be a jury instruction that Flaner wanted that the court had rejected.

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And moreover, Flaner could not tell the jury that interval meant permanently connected.

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Masson, on the other hand, could, because that would be consistent with the jury's instruction.

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So I thought it was important to understand that procedural posture that got us to where we're at here

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And none of these issues were waived.

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This has always been a claim construction issue.

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Otherwise, we've gone through a lot of detail in our brief about the prosecution history and other things.

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And so we'll stand on that brief and the arguments that we put there and explanation unless your honors have any questions on that and certainly entertain that.

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If not, then I'd like to talk about the 978 patent.

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and specifically the support means limitation of the 978 patent.

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Now you may recall the 978 patent is about supporting an arm that holds monitors in a way that allows that arm to rotate.

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So if you have one monitor on one end of the arm and another monitor at the other end, they can be side by side, what they call horizontal orientation.

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But importantly, because we're supporting it in a way that can rotate,

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you can actually rotate this arm clockwise so that one monitor is now above the other monitor in what they call a vertical orientation.

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So supporting this arm in a way that allows it to rotate clockwise or counterclockwise between a horizontal and vertical orientation is very important for this claim.

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This claim is a mean plus function limitation.

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The support means for supporting the arm.

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There's no dispute about that.

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The corresponding structure is a rotary joint in Figure 7 and a rotatable clutch in Figure 19.

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We have some color-highlighted versions of those figures in our blue brief, Pages 35 through 36, identifying that structure.

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Now, the 978 patent specifically talks about this function.

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And we sign on Page 8 of our blue brief, Column 3, Lines 29 through 34 of the 978 specification.

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And that part of the specification specifically talks about the rotary joint.

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And that is, it is, quote, configured to perform two functions.

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So the first function, it says, is, quote, to support the RM-18 for rotation about a generally horizontal axis 26 through the upright 20, end quote.

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The thing goes on to talk about another function, not an issue here.

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And so when you look at the claim language, when you look at the corresponding structure or rotary joint, the table will plug.

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That's all consistent with what the patent's about.

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Why is that relevant?

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We talked about the planer products.

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There are two separate arms slid over this pole.

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There's no physical way to rotate either of these arms clockwise.

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There's no way to mount a monitor in a vertical orientation.

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This is just a very, very different way.

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We described that in our briefing.

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We talked about

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That's just some force analysis, which would exist in any support.

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You'll always have to have a force pushing up.

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Mr. Long, Mr. Long, Mr. Stech, would you address the other means plus function element of the 978, the mounting means, and particularly your argument that these three hinges don't do the mounting in the same way as the ball

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and socket joint of the patent structure?

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Yes, sir, absolutely.

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And we have, of course, figures on this in pages 44 through 45 of our brief.

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So the corresponding structure in the patent is this ball and socket joint.

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And this is something that you can directly rotate to any position you want to.

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In our patent, it's a very different design.

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It has what are called three hinge joints.

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Once the hinge door hinge,

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It can only rotate in one direction.

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So having three hinge points is already a big change.

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It's certainly not an instantial change, adding nothing of significance.

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But then it goes further.

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Having those separate independent joints allows the planar product to have a biasing spring, and the joint that controls tilting.

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In other words, the weight of the TV, if you put it on this mount, will just cause it to sag downwards.

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So the planar product can put a bison spring to bias that upwards.

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It also has some independent torque things you can do to require less or more force to tilt it up and down.

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The same thing with the tilt mechanism.

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It has its own separate torque system to govern how easy or hard it is to tilt it left or right.

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And so what's good about that, go ahead.

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Wait, wait.

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This is a doctrine of equivalence issue.

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And as I understand it, you don't dispute that it performs.

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The hinges perform the same function as a ball and socket.

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But your argument is that they don't do it in the same way.

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Is that correct?

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It's a means plus function of structural equivalence.

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But we don't dispute it does the function.

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We do dispute that it's in a very different way.

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For example, if you look at that ball and socket joint, if you want to keep it from sagging down under the weight

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of a monitor, you have to tighten it up a lot to counteract that gravity.

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But now that you've tightened it, try to swivel it left or right.

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You've really increased that force.

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Whereas with a planer design, they're just independently tunable, independently different.

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Again, it's certainly not an insubstantial change, adding nothing of significance, which is what's required for it to be a 112-equivalent, structural equivalence.

[00:09:28] Speaker 03:
Mr. Long, this is Judge Stoll.

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On that issue, is there anything in your specification that talks about the importance or advantages of having the ball and socket joint as opposed to another kind of joint?

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A couple answers to that.

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One thing is it instills the benefits of this ball and socket joint, that it's kind of revolutionary, and it's the only disclosures that they have.

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you know, a column and line number site for that about being revolutionary?

[00:10:06] Speaker 02:
It's in our blue brief.

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And so let me see if I can find that real quick.

[00:10:15] Speaker 03:
Thank you.

[00:10:18] Speaker 02:
Yes, Your Honor.

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Mr. Long, if it's not readily at hand, you might find it to us on rebuttal.

[00:10:37] Speaker 02:
Yes, Your Honor.

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I agree, and I'll do that.

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In fact, I see that.

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I believe I'm going into my rebuttal time.

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So if Your Honors don't have any questions from now, or just stole, I'll look up the answer to your question and be back to you when I'm here on rebuttal, if that works.

[00:10:56] Speaker 04:
Oh, yes.

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Thank you.

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We will give you rebuttal time, Mr. Long, Mr. Edmonds.

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Mr. Edmonds, are you there?

[00:11:25] Speaker 01:
Yes, Your Honor, I'm here.

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Let me begin by addressing briefly this ball joint issue.

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In column five, approximately line 50, spot seven, it mentions that the ball joint is preferably configured to provide limited tilting of the display.

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If you read the specification as a whole, the real gist of the ball joint,

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is being able to adjust the monitors to a desired degree when they're facing the user.

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On this issue of the- How is a ball joint mounted in the same way as three hinges?

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So there are three.

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And as the expert, this was a hot look and tested issue.

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that the jury heard expert testimony on both sides and the jury took these devices back with them.

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The three hinge joints are co-located.

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And so they allow rotation in an X, Y, and Z axis.

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The ball and socket joint is also allows rotation in X, Y, and Z axis.

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There's a very slight tiny offset

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of an axis because the three joints are co-located, but they're not in exactly the same spot in space.

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But that was the equivalency was that when you co-locate three hinge joints that move in X, Y, and Z, then that's equivalent to a ball joint that moves in X, Y, and Z. OK.

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That's the same function, and they don't dispute the function.

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The question is, how is that the same way as a ball joint?

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And your only testimony about that seems to be directed to a functional analysis.

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Well, it's a joint, which is the way.

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And the three co-located hinge joints are an equivalent way to the ball joint.

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And yeah, I think you pointed out they do perform the same function.

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Mr. Edmonds, is it your view that on a 112-6 means plus function claim that you need a structural equivalent will suffice, but that doesn't require a function where result analysis?

[00:14:04] Speaker 04:
Is that your view?

[00:14:05] Speaker 01:
No.

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It has to perform the same function, which is agreed, and it has to have

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substantially the same way, substantially the same as the results.

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The results not contested.

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So we're just talking about the structures in substantially the same way.

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And, you know, the expert testimony was that the three collocated hinges were an equivalent structure to the ball.

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The planar product, essentially, just if you pull apart slightly that ball joint, you would pull it apart into the three hinges.

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If you compress the three hinges, you would compress them into a ball joint.

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But on the face of it, three hinges and a ball joint seem to be different and not the same way.

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And the analysis of your expert is just that the forces are the same.

[00:15:11] Speaker 00:
Isn't that correct?

[00:15:13] Speaker 01:
No, because the way is three co-located hinges versus a ball joint.

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That's the way.

[00:15:25] Speaker 01:
And the testimony was, and this was an evidentiary issue as far as equivalency, the testimony was that that is substantially equivalent way and substantially equivalent structures.

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Why?

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That was different.

[00:15:40] Speaker 03:
Hi, this is Judge Stoll.

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Could you elaborate, dig a little bit deeper on this issue and explain what your experts said as to why they were the same way?

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I mean, you mentioned they're both joints.

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I think they're both, the experts said something about how they're both on the back of the display.

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What else is there?

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They're both joints.

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They're both, one is

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The co-located joints are, if you put it up, again, that's just an exploded or slightly exploded ball joint.

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And when you compress the three hinges, then you have a ball joint.

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If you expand the ball joint, you can expand it out to three hinges.

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They're all located in the same place.

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They allow the monitors to go in the same range of movement in X, Y, and Z.

[00:16:35] Speaker 04:
Mr. Edmonds, as I read your brief, you stated virtually every challenge or issue that talent raises has been waived, which can't be correct.

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And to assert that every issue is waived is not a very good use of the judicial process, making us chase after phantoms.

[00:17:04] Speaker 04:
Would you comment on that, your practice of asserting that every issue was waived?

[00:17:11] Speaker 01:
Well, I guess I can certainly take a couple of issues because I wanted to get to them first.

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This council's argument about these differentiation, the biasing spring and this tightening, that argument was first made in their brief, in their reply brief.

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It wasn't even, it wasn't made in their post trial motion.

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And that's just a new argument.

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And there are, I think the starting point for why we made that, took that position is the very limited post-trial motions that they filed.

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So the JMAW was only on indirect infringement.

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And it only had to do with a contested fact issue of not infringing alternatives for a single piece support arm.

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And the other part of the JMAW was Contesting Infringement of Desired Degree, which they haven't pursued on appeal.

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That's all they had in their JMAW.

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In their motion for new trial, they argued that the weight of the evidence was that the arms are separated, and the weight of the evidence was that the hinges are not equivalent to a ball joint.

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And they argued the way the evidence was, it's important it doesn't show vertical to horizontal.

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Those are the only issues they challenge.

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They challenge the jury instruction on unassembled products, and they challenge an instruction that says insufficient instruction on single piece.

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That's all they challenge in their post-trial motions.

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That's all they challenge.

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That's why we've raised waiver on so many of these issues, and especially with respect to the jury instructions.

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They didn't object to those, and they gave very limited objections to the licenses that came in, not the license they're asserting on appeal.

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So, you know, we asserted waiver because there is waiver.

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If I may address also just the new arguments, Planner started off by arguing that single piece needs to be prominently joined.

[00:19:27] Speaker 01:
That's the first time they made arguments in their reply brief.

[00:19:32] Speaker 01:
That's not in their markup briefing.

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It's not in their post trial briefing.

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It's not even in their opening brief.

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It's not supported at all.

[00:19:39] Speaker 00:
Mr. Edmonds?

[00:19:41] Speaker 00:
Yes.

[00:19:42] Speaker 00:
If I hear your recital about the waived arguments, is it fair to say that you agree that the mounting means argument and the lack of equivalence was properly raised in the motion for new trial?

[00:20:00] Speaker 01:
In the motion for new trial, I agree that they did raise the mounting means, the hinges versus the ball joint.

[00:20:08] Speaker 01:
Yes, they did raise that in the motion for new trial.

[00:20:10] Speaker 01:
They said the weight of the evidence was against it.

[00:20:13] Speaker 01:
And of course, there's evidence on both sides, ample evidence from masses expert.

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And as the district court pointed out, from the products themselves, which the jury was allowed to take back into the jury room and using themselves.

[00:20:30] Speaker 01:
That's when you juxtapose all the arguments they've made now versus the arguments that they made, the very, very limited arguments they made in their JMAW and their motion for new trial and the very, very few objections they made during the trial when they had an opportunity to object to these exhibits they're objecting to and to object the instruction.

[00:20:52] Speaker 01:
With respect to this integral issue that Planner's counsel argued, that was an agreed term.

[00:20:59] Speaker 01:
Planer agreed to that term and they've added this, as I mentioned, they've added this currently in their reply brief that was not part of the case and it's not supported at all that integral means permanent, something they made up in their reply.

[00:21:19] Speaker 01:
With respect to the support means, this idea of the arms going from horizontal to vertical

[00:21:29] Speaker 01:
That's also an agreed claim construction.

[00:21:33] Speaker 01:
That's not in the courts, the construction of the court.

[00:21:37] Speaker 01:
That's not the function that was agreed upon.

[00:21:39] Speaker 01:
And that's just not a requirement.

[00:21:41] Speaker 01:
If the district court correctly held that that wasn't a requirement, because it's not.

[00:21:48] Speaker 01:
So in fact, if you look at the main independent claim at issue with claim 16,

[00:21:55] Speaker 01:
If you look at claim one of the 978 patent, it actually does have that limitation.

[00:22:01] Speaker 01:
Claim 16 does not.

[00:22:03] Speaker 01:
So their entire argument on this support means allowing this clock-like rotation of the arm assembly is just completely off, and it contravenes the agreed construction that they agreed to.

[00:22:19] Speaker 01:
With respect to...

[00:22:25] Speaker 01:
The integral counsel stated that they weren't allowed.

[00:22:29] Speaker 01:
So the construction of integral was done by the court in denying their summary judgment motion.

[00:22:36] Speaker 01:
And they didn't appeal the denial of their summary judgment motion.

[00:22:40] Speaker 01:
And the denial of summary judgment is not sufficient under Ninth Circuit to preserve anything for appeal.

[00:22:48] Speaker 01:
And as counsel conceded, the jury was not

[00:22:53] Speaker 01:
given it, instructed on the courts further its clarification of what interval, which was correct, by the way.

[00:23:01] Speaker 01:
But they, you know, there's just nothing there, there's nothing there for Planner to appeal because they agreed to the construction and it met their construction.

[00:23:15] Speaker 01:
I just point out on this issue of waiver, based on the very limited challenges

[00:23:22] Speaker 01:
that Planner made in its post-trial motions.

[00:23:27] Speaker 01:
For this case to be reversed, the court would have to find that desired degree is indefinite.

[00:23:35] Speaker 01:
And desired degree is not indefinite.

[00:23:36] Speaker 01:
And it's fully briefed.

[00:23:38] Speaker 01:
I don't think counsel mentioned it, so we don't need to belabor it.

[00:23:42] Speaker 01:
But if desired degree is not held indefinite, there is no viable appellate challenge

[00:23:50] Speaker 01:
to the indirect infringement, which they were finding as indirect infringement on both patents.

[00:23:56] Speaker 01:
And that supports the judgment.

[00:23:59] Speaker 01:
It supports the damages award.

[00:24:02] Speaker 01:
So the only challenge to indirect infringement was the issue of a single-piece support arm.

[00:24:14] Speaker 01:
The desired degree was, again.

[00:24:16] Speaker 04:
Indirect infringement.

[00:24:17] Speaker 04:
You're talking contributory infringement.

[00:24:20] Speaker 01:
And induced.

[00:24:21] Speaker 01:
There were findings by the jury of contributory and induced.

[00:24:25] Speaker 01:
And the only thing that was in their JMAW or the only thing in their post-trial motions on induced or contributory was saying that there were substantial non-infringing uses for single piece support arm.

[00:24:39] Speaker 01:
They also said that desire degree wasn't met, but they hadn't pursued that on appeal.

[00:24:46] Speaker 01:
So even if all other challenges aside, there are jury findings on contributory and induced infringement.

[00:24:58] Speaker 01:
And their challenge to that with single piece of court arm is completely meritless, certainly not sufficient to overturn it.

[00:25:06] Speaker 01:
And with that, this can be affirmed whether or not there's some issue with direct infringement.

[00:25:14] Speaker 01:
I'd also, Council mentioned that the single piece support arm, I would just commend the panel to the pictures in our brief that we put.

[00:25:28] Speaker 01:
They're taken directly from the exhibits, including the ones that were sent back to the jury.

[00:25:33] Speaker 01:
And clearly that these arm segments, when they are installed, assembled,

[00:25:43] Speaker 01:
per planer's instructions.

[00:25:46] Speaker 01:
They mate together.

[00:25:48] Speaker 01:
They're made to mate together.

[00:25:49] Speaker 01:
They're made to fit together.

[00:25:50] Speaker 01:
They have a tooth and groove configuration.

[00:25:54] Speaker 01:
And that has to be used.

[00:25:55] Speaker 01:
As it was pointed out by Matthew's expert, without using the tooth and groove, then it would be unstable and fall over.

[00:26:06] Speaker 01:
And there's ample evidence of the

[00:26:10] Speaker 01:
of a single piece support arm and also single piece is not requirement of claim 10.

[00:26:15] Speaker 01:
It's only requirement of claim 1 or 331.

[00:26:19] Speaker 01:
With just circling back on the hands because I'm just about out of time, clearly our position is they function the same way and they have these three axes.

[00:26:34] Speaker 03:
This is Judge Stold.

[00:26:35] Speaker 03:
Do you have an answer to my question?

[00:26:38] Speaker 01:
Which one?

[00:26:40] Speaker 01:
What's the question, Judge Stillen?

[00:26:41] Speaker 01:
I will answer it.

[00:26:42] Speaker 03:
I apologize.

[00:26:43] Speaker 03:
I had a question about in the specification and whether the specification discusses the importance of the ball joint.

[00:26:52] Speaker 01:
Well, the specification refers to it as a novel ball joint.

[00:26:57] Speaker 01:
As I mentioned, in column five, it points out that it's preferably configured to allow tilting.

[00:27:07] Speaker 01:
not a requirement.

[00:27:10] Speaker 01:
And as I mentioned, and I don't have the exact site for you, but it's described with this whole notion, which is exactly what's captured in claim 16 of the monitors being able to be adjusted to where the user

[00:27:36] Speaker 01:
can adjust them to, we call it booking.

[00:27:40] Speaker 01:
Think of it as if you're holding a book in front of you and you can adjust the front and back of that book.

[00:27:45] Speaker 01:
That is the main function of that ball joint.

[00:27:47] Speaker 01:
And that's the function that is described in Claim 16.

[00:27:54] Speaker 03:
Okay, thank you.

[00:27:56] Speaker 01:
Okay.

[00:27:56] Speaker 04:
Thank you, Council.

[00:27:58] Speaker 04:
We'll read your argument and we'll hear rebuttals from Mr. Edmonds, from Mr. Long, sorry.

[00:28:07] Speaker 02:
No problems.

[00:28:07] Speaker 02:
Thank you, Your Honor.

[00:28:09] Speaker 02:
First, my apologies, Joe Stoll.

[00:28:10] Speaker 02:
I did find that citation in our brief.

[00:28:13] Speaker 02:
It's on page 42 of our blue brief.

[00:28:16] Speaker 02:
And it's footnote 79, cites to column two, on it's 59 through 60.

[00:28:21] Speaker 02:
And that's the point that Mr. Edmonds made, that the patent talks about, quote, a novel ball and socket joint.

[00:28:29] Speaker 02:
So this was a big deal, this important thing that was in the ball and socket joint.

[00:28:33] Speaker 02:
I want to respond to a couple of issues.

[00:28:35] Speaker 02:
First of all, the question kind of raises a concern we had, which is if we... I think the term waiver was used 43 times in the opposition brief.

[00:28:43] Speaker 02:
We just didn't have the time to go through and rebut every one of these, which they just didn't have merit, and it would have taken our whole brief.

[00:28:51] Speaker 02:
And even today now, I've heard a new argument from them that we somehow waived the bison spring and torque thing.

[00:28:57] Speaker 02:
We had that in our opening brief.

[00:28:59] Speaker 02:
They didn't say anything in opposition, so it's certainly not something I prepared for today.

[00:29:04] Speaker 02:
That was a frustrating part of what we're having to deal with here.

[00:29:09] Speaker 02:
One, because I only have a limited amount of time left, at first I just want to make sure, is there any questions that your honors may have on anything we haven't touched yet, touched on yet?

[00:29:24] Speaker 04:
No, proceed.

[00:29:25] Speaker 02:
Okay, thank you.

[00:29:29] Speaker 02:
So one issue, for example, on this waiver,

[00:29:32] Speaker 02:
They said we didn't appeal the denial of the summary judgment motion.

[00:29:34] Speaker 02:
What we appealed in the issue was the denial was based on the claim construction rule.

[00:29:41] Speaker 02:
And we certainly preserved that issue.

[00:29:43] Speaker 02:
And there's just a whole bunch of other issues.

[00:29:45] Speaker 02:
They said we didn't appeal damages.

[00:29:47] Speaker 02:
We plainly did.

[00:29:48] Speaker 02:
Our most appeal covered that.

[00:29:50] Speaker 02:
And so that's just very unfortunate we had to deal with all that.

[00:29:56] Speaker 02:
Uh, the last thing I'll raise, and I just find it a fascinating issue that would be interesting for the court's guidance is this baseball arbitration order.

[00:30:04] Speaker 02:
Uh, and you all may be familiar with baseball arbitration.

[00:30:06] Speaker 02:
That's where, uh, decision maker in this case, the judge was given two proposed reasonable royalty rates under field, uh, and two undisclosed bases for it.

[00:30:17] Speaker 02:
And then the judge would pick one or the other.

[00:30:19] Speaker 02:
There was no averaging, um, splitting the baby, finding something in the middle.

[00:30:24] Speaker 02:
There's pick A or pick B. And so that's what the judge did, an issue of one page order.

[00:30:31] Speaker 02:
And we cite that one page order on the whole language in page 71 of our blue brief.

[00:30:37] Speaker 02:
The problem was that went to the jury.

[00:30:39] Speaker 02:
We objected many times to that.

[00:30:43] Speaker 02:
There's certainly no way for there because that was an issue.

[00:30:45] Speaker 04:
This isn't exactly rebuttal.

[00:30:47] Speaker 04:
This wasn't raised by Mr. Edmonds.

[00:30:50] Speaker 04:
Are there other points of rebuttal that you want to mention?

[00:30:55] Speaker 02:
Oh, thank you.

[00:30:56] Speaker 02:
Thank you, your honor.

[00:30:57] Speaker 02:
I apologize.

[00:30:58] Speaker 02:
I had some notes here, but quite honestly, I think I have a minute and a half left, I think.

[00:31:06] Speaker 02:
But I think if your honors have no more questions, then then we'll rest on what we said and on the briefs.

[00:31:19] Speaker 04:
Council, we appreciate both arguments and the case is submitted.