[00:00:00] Speaker 03:
for argument is 20-1812, Mondus Technology versus LG Electronics.

[00:00:06] Speaker 03:
Mr. McKeon, whenever you're ready.

[00:00:09] Speaker 02:
Thank you, Your Honor, and good morning.

[00:00:10] Speaker 02:
May it please the Court.

[00:00:11] Speaker 02:
There are three issues that provide an independent basis why the judgment below should be reversed.

[00:00:16] Speaker 02:
Written description, infringement, and standing.

[00:00:19] Speaker 02:
I'd like to start with written description.

[00:00:21] Speaker 00:
Claims require... Mr. McKeon, this is Judge Hughes.

[00:00:24] Speaker 00:
Before you get started on that, can I ask you about the timeliness of this appeal?

[00:00:29] Speaker 02:
Sure, Your Honor.

[00:00:31] Speaker 00:
So this is an interlocutory appeal, right?

[00:00:33] Speaker 00:
That's correct, Your Honor.

[00:00:36] Speaker 00:
And what is the interlocutory order that you're challenging?

[00:00:41] Speaker 02:
We're challenging the liability order, the September 2019 liability order.

[00:00:48] Speaker 00:
And why aren't you out of time?

[00:00:50] Speaker 00:
Because you didn't file an appeal within 30 days of that.

[00:00:54] Speaker 02:
Rule four, Your Honor, applies to tolling here, as we've said in the briefing.

[00:01:01] Speaker 00:
Right.

[00:01:01] Speaker 00:
I understand the basics of your argument.

[00:01:03] Speaker 00:
Just so I'm not like hiding the ball, let me tell you, here's my problem.

[00:01:08] Speaker 00:
Rule four allows judgments to be told based upon a variety of motions that are directed at those judgments.

[00:01:16] Speaker 00:
There wasn't any motion directed at that interlocutory order, was there?

[00:01:22] Speaker 02:
Well, that's true, Your Honor.

[00:01:24] Speaker 02:
But remember that when the rule says all, and it says all, motions are resolved, the damages motion was pending until April of 2020.

[00:01:34] Speaker 00:
I get that entirely.

[00:01:37] Speaker 00:
And if this case had been an appeal from a final judgment and you waited until after all of the rule 50 motions, we wouldn't be here.

[00:01:46] Speaker 00:
But it's not an appeal from a final judgment.

[00:01:48] Speaker 00:
It's an appeal from an interlocutory order.

[00:01:51] Speaker 00:
And I don't see any motion directed at that interlocutory order that would toll the time to file an appeal from that interlocutory order.

[00:02:01] Speaker 02:
That's correct, Your Honor.

[00:02:03] Speaker 02:
But remember, the 1292, there's no exception.

[00:02:06] Speaker 02:
We have 1291, 1295, 1292.

[00:02:08] Speaker 02:
There's no exception for damages interlocutory appeals under 1292 and Rule 4.

[00:02:16] Speaker 02:
In fact, it applies squarely in this case because the issue of damages was hotly contested below and we had multiple rounds of briefing and that in fact could have disposed of all the issues.

[00:02:31] Speaker 00:
I understand this and I don't understand why it makes any difference because

[00:02:38] Speaker 00:
We have a unique rule that allows, in patent cases, an interlocutory appeal of liability, which doesn't exist in any other civil case, as far as I know.

[00:02:48] Speaker 00:
But if that's the case, then the language is final but foreign accounting.

[00:02:55] Speaker 00:
And you agree, I think, that the liability in this case was final but foreign accounting in September, that September order.

[00:03:05] Speaker 00:
And whether damages was final or not,

[00:03:08] Speaker 00:
doesn't have anything to do with the 1292C2 appeal, does it?

[00:03:13] Speaker 02:
Well, I mean, certainly under 1292C, we've got a right under, and this is a unique thing for the Federal Circuit, but I don't see any language in the text of the statutes or the rule that carves out damages remedy or remedy-related motions under Rule 50.

[00:03:35] Speaker 02:
And that's the problem.

[00:03:36] Speaker 02:
There's nothing in the text that prevents the scenario that we are here today.

[00:03:42] Speaker 02:
And when we had the final judgment that the judgment went into effect by operation of statute, the liability motions were ruled on in September.

[00:03:53] Speaker 02:
We had that one outstanding motion.

[00:03:55] Speaker 02:
And it's really a perfect application of rule four.

[00:03:58] Speaker 02:
And there's nowhere in the text of the statute, nowhere in the rule where there's some sort of special carve out for the federal circuit.

[00:04:05] Speaker 02:
here under 1292.

[00:04:07] Speaker 01:
This is Judge Dyke.

[00:04:09] Speaker 01:
I mean, I think Judge Hughes may have a point here, because I don't think the time limits are established by Rule 4.

[00:04:16] Speaker 01:
The statute itself establishes the 30-day time limit.

[00:04:23] Speaker 01:
And you have a decision by the Supreme Court in the Budenich case, which is 486 U.S.

[00:04:29] Speaker 01:
196,

[00:04:31] Speaker 01:
in which the Supreme Court said that the finality of a judgment is not affected by the pendency of a motion relating to attorney's fees.

[00:04:41] Speaker 01:
And the reason for that is that it doesn't affect the merits of the judgment.

[00:04:45] Speaker 01:
So under that Supreme Court case, I don't see how a motion that relates to solely damages affects the finality of the liability determination.

[00:04:58] Speaker 01:
But while I agree that you have a very good point about the language of rule four, I'm having trouble seeing how the language of rule four is governing here when the time limit is statutory and the Supreme Court in this Budenist case has told us why motions are irrelevant if they don't relate to the merits of the underlying judgment.

[00:05:26] Speaker 02:
Well, I mean, the judgment, of course, was constructively entered.

[00:05:29] Speaker 02:
And the judgment was told under Rule 4.

[00:05:33] Speaker 02:
And 2107, of course, you're right, is the statutory text that gives you the 30 days.

[00:05:38] Speaker 02:
But under the Rule 4, we have to look to the finality question.

[00:05:42] Speaker 02:
And that's really, under Rule 4, you're looking to, OK, when is it actually final?

[00:05:47] Speaker 00:
And there's nothing that parts out.

[00:05:49] Speaker 01:
I guess the point is that,

[00:05:50] Speaker 01:
Rule four can't overcome the statute and the construction of the statute that the Supreme Court has given to it.

[00:05:58] Speaker 01:
And in fact, after the Budenich case, the rule four was amended to delete motions for attorney's fees, if I recall it, from the list of motions that counted, appearing to be a recognition that the rule has to follow the statute rather than the other way around.

[00:06:19] Speaker 02:
Yes, Your Honor.

[00:06:20] Speaker 02:
Certainly the rule can't contradict the statute, and we agree with that.

[00:06:25] Speaker 02:
But I do think that read together holistically, there's nothing in the language that changes that.

[00:06:32] Speaker 02:
And I'm not quite familiar with the cases you cite, Your Honor.

[00:06:37] Speaker 02:
But what I can tell you is when we read the text of the statute, it all works together perfectly.

[00:06:42] Speaker 02:
And this case is the perfect application of that.

[00:06:45] Speaker 02:
When we had an outstanding motion that was not resolved,

[00:06:49] Speaker 02:
that could have resolved the case in a way where LG prevailed.

[00:06:55] Speaker 02:
And it would have been entirely different.

[00:06:58] Speaker 02:
And that's why we have the tolling to begin with.

[00:07:01] Speaker 02:
And it's perfectly consistent with the legislative history of the appellate rule here, rule four.

[00:07:10] Speaker 00:
But we're not talking about tolling a final judgment.

[00:07:14] Speaker 00:
We keep talking about final judgment.

[00:07:15] Speaker 00:
We're talking about when an interlocutory order

[00:07:19] Speaker 00:
becomes suitable for appeal under 1292C2.

[00:07:25] Speaker 00:
And you agree the interlocutory order is September.

[00:07:29] Speaker 00:
There was nothing further that needed to be done after September, right?

[00:07:33] Speaker 00:
That is the order you're appealing from.

[00:07:36] Speaker 02:
I guess you're, I quibble a little bit, Your Honor, while you're characterizing me.

[00:07:39] Speaker 02:
I mean, judgment was entered by 150 days from the jury verdict in early September of 2019.

[00:07:44] Speaker 02:
Judgment was entered in everything.

[00:07:46] Speaker 02:
And then, you know, we had our pending rule 50 motions across the board on all issues.

[00:07:53] Speaker 02:
So that, those issues, yes, some were resolved in the September 29th.

[00:08:00] Speaker 00:
No, not some.

[00:08:01] Speaker 00:
All liability issues were resolved in September, right?

[00:08:05] Speaker 00:
That is true.

[00:08:06] Speaker 00:
That is true.

[00:08:07] Speaker 00:
I mean, if all liability issues weren't resolved, then we don't have jurisdiction at all.

[00:08:12] Speaker 00:
All liability issues.

[00:08:14] Speaker 00:
that made it interlocutory.

[00:08:16] Speaker 00:
I'm not going to argue with you.

[00:08:18] Speaker 00:
I think, you know, I understand your argument.

[00:08:20] Speaker 00:
I want to ask one more question, though.

[00:08:22] Speaker 00:
If we decide this appeal is untimely and dismissive, you won't be barred from raising any of your liability-based merits issues after the new trial for damages.

[00:08:33] Speaker 00:
Should you lose on damages?

[00:08:35] Speaker 00:
And if you prevail on damages, then we won't have to see this again, or presumably not from your side.

[00:08:42] Speaker 02:
Thank you, Your Honor, for noting that.

[00:08:44] Speaker 02:
And I think monitors concede that in their red brief, that that is, in fact, the case in terms of if the court were to go in that direction.

[00:08:53] Speaker 02:
But unless there's any other questions, I'd like to turn to the written description argument, which we do think is positive on the merits.

[00:09:02] Speaker 02:
The patent, as I said earlier, requires a type of said display unit.

[00:09:07] Speaker 02:
And this is in the claim, which was amended in the patent office.

[00:09:12] Speaker 02:
On cross-examination, Mr. Lam, their expert, Moniz's expert, admitted that there's no expressed disclosure of a type ID number in the specification.

[00:09:22] Speaker 02:
And to this day, Moniz has been unable to identify anywhere in the written description where a type ID is disclosed.

[00:09:29] Speaker 03:
Well, let me ask you about that.

[00:09:32] Speaker 03:
Mr. Stevenson, one of the witnesses,

[00:09:35] Speaker 03:
In the context of invalidity, he said that the specs disclosure of an ID number is something like a serial number, and that's at 15157.

[00:09:46] Speaker 03:
And then in the context of non-infringement, he allowed that serial numbers could be a type ID.

[00:09:53] Speaker 03:
That's at 15168.

[00:09:58] Speaker 03:
So why isn't that enough to give the jury the idea that there is something in the specification?

[00:10:05] Speaker 03:
that relates to the type?

[00:10:08] Speaker 02:
Well, to be clear here, Your Honor, as Dr. Stephenson said, you know, that serial number is a hypothetical context, and they were never arguing that there were a serial number disclosed in the specification because it's not disclosed.

[00:10:20] Speaker 02:
And this was really on the infringement side of the case where, and the dispute on the infringement side of the case was whether certain bits in LG televisions constituted a type ID.

[00:10:33] Speaker 02:
And that was the discussion that was going on with respect to the cross-examination.

[00:10:38] Speaker 02:
It was not in the context of what the written description of the specification disclosed.

[00:10:43] Speaker 02:
Dr. Stevenson was very clear that the type ID was not disclosed.

[00:10:47] Speaker 02:
And these serial numbers, there is no disclosure of a serial number.

[00:10:49] Speaker 02:
It was only a hypothetical, could a serial number be a type ID in some context?

[00:10:56] Speaker 02:
And that was the discussion that you were referring to, Your Honor.

[00:11:00] Speaker 02:
He was very clear, though, that the specification is limited to IDs for specific display units.

[00:11:08] Speaker 02:
And that's clear.

[00:11:08] Speaker 02:
There's nothing in the specification explicitly there.

[00:11:11] Speaker 02:
And Your Honor, the Center Court case is really on point here.

[00:11:15] Speaker 02:
We've got to look at the four corners of the specification and the written description.

[00:11:20] Speaker 02:
Where is it in the written description?

[00:11:22] Speaker 02:
Were we established across the nation?

[00:11:25] Speaker 03:
Well, do you not that they could have done, I mean, I know you'll say that they didn't do this, but they could bring in an expert in terms of how a person skilled in the art would read the specification as covering this.

[00:11:39] Speaker 03:
I mean, even if it's not there, they could have had rebuttal evidence that would be relevant to the question, would it not?

[00:11:46] Speaker 02:
That is true, Your Honor, but this Court has held, and you've got to, because an expert says something, doesn't make it so.

[00:11:54] Speaker 02:
And particularly on this written description question when the written description itself is what guides you.

[00:12:01] Speaker 03:
I know, but the problem we have is you've got a jury verdict against you.

[00:12:06] Speaker 03:
And the J-Mall, you know, the district court didn't talk about the serial number stuff.

[00:12:14] Speaker 03:
He did mention the question about your witnesses' impartiality.

[00:12:20] Speaker 03:
So let me ask you about that.

[00:12:21] Speaker 03:
You made two arguments.

[00:12:24] Speaker 03:
in defense.

[00:12:25] Speaker 03:
You say, one, it wasn't really impeaching at all, and two, even if it were, it only would have affected non-infringement and not validity.

[00:12:37] Speaker 03:
I don't get your second point.

[00:12:39] Speaker 03:
If you're on a jury and you hear a witness talking about X and you figure out he's a liar, and I'm not suggesting that about your witness, I'm talking hypothetically, and then he testifies about a completely different thing, isn't the jury free?

[00:12:54] Speaker 03:
to transfer that conclusion that this guy is not to be believed over to everything else he says during the trial.

[00:13:02] Speaker 03:
So I'm not getting your second point.

[00:13:03] Speaker 03:
Your first one I get, and maybe you can give us a little more as to why the district court was wrong, that this was not impeaching at all.

[00:13:10] Speaker 02:
Yeah, on the second point, Your Honor, we just cite the integral life sciences case where the court suggested that it really had to go issue by issue on this.

[00:13:20] Speaker 02:
None of the challenged evidence that we're talking about written description, there was no impeachment on that point at all.

[00:13:27] Speaker 02:
But I do, you know, we don't need to carry the rule so far.

[00:13:30] Speaker 02:
I do understand the general concept that, you know, if an expert is, you know, brought down more generally, then, you know, maybe you can expand that.

[00:13:38] Speaker 02:
But on this point, when we're talking about the written description and what's disclosed, that testimony was unimpeached.

[00:13:47] Speaker 02:
And on the first point, and I think that is important, Your Honor, and they keep saying the expert was impeached and the district court in the JMO order, that was the only basis the district court, and I did hear the bell, so I will finish this, if I may.

[00:14:02] Speaker 02:
The district court only relied on this one point.

[00:14:05] Speaker 02:
And the issue there was our expert never disputed that there was RGB bits in the television.

[00:14:11] Speaker 02:
The only issue there was our expert said it was characteristic information.

[00:14:15] Speaker 02:
It wasn't type ID.

[00:14:16] Speaker 02:
They were saying it was type ID.

[00:14:18] Speaker 02:
We said it was characteristic information.

[00:14:20] Speaker 02:
The jury believed their expert, not our expert.

[00:14:23] Speaker 02:
That's not impeachment.

[00:14:25] Speaker 02:
And if you look at the testimony carefully, there's just no impeachment there.

[00:14:29] Speaker 02:
Yes, for sure, the jury went with their expert, not ours.

[00:14:32] Speaker 02:
But we just take issue with it, with the characterization as it being impeachment.

[00:14:36] Speaker 03:
All right.

[00:14:36] Speaker 03:
I appreciate that.

[00:14:37] Speaker 03:
Thank you.

[00:14:38] Speaker 03:
We'll reserve the remainder of your e-bubble.

[00:14:40] Speaker 02:
Thank you.

[00:14:41] Speaker 00:
Thank you, Donna.

[00:14:42] Speaker 00:
Thank you.

[00:14:43] Speaker 03:
Mr. Black?

[00:14:46] Speaker 00:
Thank you, Your Honor.

[00:14:47] Speaker 00:
May it please the court.

[00:14:49] Speaker 00:
Let me begin with the timeliness of the appeal.

[00:14:52] Speaker 00:
And while this is an issue of first impression for the federal circuit, it is governed by the statutory text and determined by reading the language of the statutes at issue.

[00:15:07] Speaker 00:
Under 2192C2, an appeal will lie to this court for an interlocutory appeal only

[00:15:15] Speaker 00:
when a judgment is, quote, final except for an accounting.

[00:15:18] Speaker 03:
Well, Mr. Black, let me just interrupt and ask you how you look at Rule 4 and tell me how you reconcile what you're advocating here with the language in Rule 4.

[00:15:31] Speaker 03:
Yes, Your Honor.

[00:15:32] Speaker 00:
Is there a way to do it?

[00:15:33] Speaker 00:
Yes, I believe that there is.

[00:15:35] Speaker 00:
And in the brief we pointed out, if you look at Rule 4A, it just says, 4A4,

[00:15:42] Speaker 00:
And this goes along with what Judge Dyke was commenting about the case, the name of which I'm not sure I can pronounce properly, but established the same principle.

[00:15:54] Speaker 00:
What Rule 4A4 says is that if a party files in the district court any of the following motions under the federal rules of civil procedure, it doesn't say specifically motions as to what.

[00:16:06] Speaker 00:
If the rule is read filing of any of the following motions relating to the judgment at issue,

[00:16:11] Speaker 00:
which is how we say it should be interpreted, then any conflict is resolved, and it makes perfect sense.

[00:16:19] Speaker 00:
If there's a judgment pending and there's a motion that could affect that judgment, then it works.

[00:16:27] Speaker 00:
The statute works.

[00:16:29] Speaker 00:
They read it as any of the following motions relating to any judgment, regardless of whether it could possibly have any effect.

[00:16:38] Speaker 00:
And that's the best way, we think, to look at the rule

[00:16:41] Speaker 00:
and is consistent with the case law that says you should interpret these rules to be consistent with the underlying statutory authority.

[00:16:51] Speaker 00:
If there were a conflict, you would have a problem under the rules labeling act and the statute would have to supersede the rule.

[00:17:00] Speaker 00:
But we don't have to get there.

[00:17:01] Speaker 00:
You can read this rule simply as saying any of the following motions relating to the judgment at issue.

[00:17:09] Speaker 00:
We have a timeliness rule built into the interlocutory appeal statute 1292C2 and the appeal lies when the case is final except for an accounting, not final except for an accounting or some other motion on another issue.

[00:17:27] Speaker 00:
And of course the 30-day rule is required by 2107,

[00:17:31] Speaker 00:
A, and that is jurisdictional and can't be waived.

[00:17:34] Speaker 00:
So if you were to read the rule otherwise, Your Honor, we would have a situation where the rule conflicts with a statute and there's no savings provision under the Rules Enabling Act.

[00:17:45] Speaker 03:
Can I ask you, Mr. Block, just out of curiosity, I don't know that there's an answer to this question, but as your friend said, and I think you would agree, this is a question that has not come up before.

[00:17:57] Speaker 03:
So why hasn't it?

[00:17:58] Speaker 03:
Is it because everybody is assuming that they follow rule four and that they don't raise an objection on timeliness?

[00:18:06] Speaker 03:
Or is it because everybody knows that they've got to file it within 30 days if they've got the one judgment without an accounting?

[00:18:16] Speaker 03:
Do you want to speculate on that?

[00:18:18] Speaker 00:
I will speculate, Your Honor.

[00:18:20] Speaker 00:
I think it's because we had pending motion practice in front of the district court.

[00:18:24] Speaker 00:
where the judge was unsure about whether he needed to hold a new trial on damages or could simply enter judgment and not give us a new trial.

[00:18:32] Speaker 00:
And we were litigating those issues.

[00:18:36] Speaker 00:
And we speculated that LG did not want to file the notice of appeal then, potentially irritating the district judge.

[00:18:44] Speaker 00:
That was our internal speculation.

[00:18:49] Speaker 01:
There's no indication that this issue has ever come up before, right?

[00:18:53] Speaker 01:
I mean, pretty unusual.

[00:18:54] Speaker 00:
That's true.

[00:18:55] Speaker 00:
It hasn't come up before, your honor.

[00:18:57] Speaker 00:
Um, the only, the only case we found, which was, which was close at all close was the Mickelson case that your honor wrote.

[00:19:04] Speaker 00:
Um, obviously it's not on all fours.

[00:19:06] Speaker 00:
It does seem to adopt a principle though.

[00:19:09] Speaker 00:
Uh, the basic principle when there was an injunction and the appeal was from an injunction, the court proceeded with the appeal, even though there were other post trial motions pending.

[00:19:19] Speaker 00:
I don't see how the rule could be any different as a practical matter.

[00:19:22] Speaker 00:
If you have a right to take an interlocutory appeal, that's policy matter.

[00:19:26] Speaker 00:
You should take it immediately.

[00:19:27] Speaker 00:
And of course, there's no harm in filing an early notice of appeal if you turn out that it's early.

[00:19:34] Speaker 00:
But we can't have situations where the statute says an appeal lies and then the party with the right to appeal is lackadaisical about taking the appeal.

[00:19:47] Speaker 01:
Well, that's exactly what the Boudinich case said.

[00:19:50] Speaker 01:
It said it's common ground in this case that the district court's decision on the merits was appealable before its determination of attorneys sees then the merits appeal was untimely.

[00:20:01] Speaker 00:
Yes, Your Honor.

[00:20:02] Speaker 00:
So we submit that on the timeliness point that the appeal is not timely, that 1292C2 states the beginning of the appeal period, that the 30-day rule of 2107 states the end of the appeal period,

[00:20:17] Speaker 00:
and that even a federal rule of appellate procedure cannot trump the statutes under Bowles and Savak versus Wilson.

[00:20:26] Speaker 00:
This is Judge Hughes.

[00:20:27] Speaker 00:
Can I just confirm with you what your friend on the other side said, which is if we dismiss this as untimely, if this comes back, all of the merits, issues, and liabilities will still be lied.

[00:20:41] Speaker 00:
There won't be any preclusive effect from this untimely appeal.

[00:20:46] Speaker 00:
That's correct.

[00:20:46] Speaker 00:
As the law stands now, Your Honor, I believe that is correct, that the interlocutory appeals under 1292C2 are optional.

[00:20:56] Speaker 00:
They can be delayed until the conclusion of the final judgment.

[00:21:06] Speaker 03:
You want to move on to the written description issue?

[00:21:09] Speaker 03:
Yes.

[00:21:10] Speaker 00:
I want to address written description, Your Honor, and make a couple of points that

[00:21:17] Speaker 00:
Written description, of course, it's a question of fact.

[00:21:20] Speaker 00:
LG bore the burden.

[00:21:21] Speaker 00:
They put up Dr. Stephenson.

[00:21:23] Speaker 00:
The district judge, he reviewed Dr. Stephenson's meter in the courtroom and made.

[00:21:29] Speaker 03:
Mr. Black, Judge Steck has a question.

[00:21:32] Speaker 00:
Oh, I'm sorry.

[00:21:32] Speaker 01:
Looking at the specifications, there isn't any reference to a type identifier.

[00:21:41] Speaker 01:
So I guess quite apart from the testimony,

[00:21:47] Speaker 01:
You have a problem right there with the language of the specification, don't you?

[00:21:52] Speaker 01:
I mean, it's not the case in which you argued that someone skilled in the art would know that there was possession of a type identifier.

[00:22:01] Speaker 01:
You argued that it's right there, and I just don't see that it is right there.

[00:22:07] Speaker 00:
But... No, Your Honor.

[00:22:09] Speaker 00:
Yes, Your Honor.

[00:22:10] Speaker 00:
Below, we argued that someone who's skilled would know that a type identifier

[00:22:14] Speaker 00:
was understood based on reviewing the specification, the prior art, what was known to those who still in the art.

[00:22:21] Speaker 00:
We had a summary judgment process in this case.

[00:22:24] Speaker 00:
Of course, that's not in front of the jury, so we didn't discuss it.

[00:22:27] Speaker 00:
At the jury trial, Dr. Stevenson made admissions, which made it unnecessary for us to put our expert on.

[00:22:32] Speaker 00:
But I would like to point to one portion of the specification that I think is quite important on your question.

[00:22:38] Speaker 01:
Just to be clear, you did not have any testimony in the jury trial

[00:22:43] Speaker 01:
that someone skilled in the art would know that the applicant has been in possession of a type identifier.

[00:22:51] Speaker 00:
We had some testimony from Dr. Stevenson about the presence of the serial number and that that was a type ID.

[00:22:59] Speaker 00:
And we also had testimony from Mr. Lam in his direct testimony about the meaning of a crucial passage of the specification at column 5, line 60 to 67.

[00:23:12] Speaker 00:
At that portion of the specification, it discusses what's called the reverse case where the number is sent from the display to the computer.

[00:23:21] Speaker 00:
And the patent states an ID number is sent to the computer from the display device, and then it tells us what the purpose of the ID number is, what it denotes, what information it conveys.

[00:23:32] Speaker 00:
Quote, so that the computer identifies that the display device having a communications function is connected.

[00:23:39] Speaker 00:
So we know that Dr. Stevenson's view that the only thing that the ID number did was identify a unique display from all others in the world is absolutely wrong.

[00:23:48] Speaker 00:
He did not discuss this portion of the specification.

[00:23:50] Speaker 00:
But this portion of the specification doesn't say anything about a type identifier.

[00:23:56] Speaker 00:
It says that the ID number is sufficient to identify whether the device has a communication function.

[00:24:03] Speaker 00:
And elsewhere in Dr. Lamb's testimony, and this is at 15075 of the appendix,

[00:24:09] Speaker 00:
transcript pages 290 to 291, he said that in this case, the communication function that they're talking about, and he's the only one who testified on this passage, is an actual video format.

[00:24:22] Speaker 00:
So the ID number is defining what video format the display is capable of receiving.

[00:24:28] Speaker 00:
Our contention is that a video format is a type.

[00:24:31] Speaker 03:
Well, I'm a little confused, Mr. Black, just because I read the district court's opinion on Jamal to agree and not suggest otherwise that there was no rebuttal evidence put on on this point.

[00:24:46] Speaker 03:
We did not take away sitting at the sitting through the trial, right?

[00:24:50] Speaker 00:
Yes.

[00:24:51] Speaker 00:
Well, there was rebuttal.

[00:24:52] Speaker 00:
We did not call Mr. Lamb in rebuttal.

[00:24:55] Speaker 00:
He did testify on direct.

[00:24:58] Speaker 00:
during the infringement case and explaining the patent to the jury, he testified extensively on what the patent taught.

[00:25:05] Speaker 00:
And two of the things he pointed to were this passage at line 50 that talks about a communication function.

[00:25:12] Speaker 00:
And at A15075, he discussed that the communication function was a video format.

[00:25:19] Speaker 00:
And there's also a section of the patent, column one, lines 41 to 43, that discusses

[00:25:26] Speaker 00:
a video signal as this type of display device.

[00:25:30] Speaker 00:
We don't think it's a big jump, Your Honor, from an ID number which was disclosed that could uniquely identify a display, numbers that could provide characteristic information to the display, and using a number to identify a video format which is a type.

[00:25:45] Speaker 00:
If you walk into a video store today, a Best Buy, you'll see TVs, they're 4K, 1080p, HD, the old days that would have been RGB or monochrome.

[00:25:55] Speaker 00:
When read as a whole, the specification supports the type limitation, which is what the patent office concluded.

[00:26:01] Speaker 00:
And I take it, look, the patent office's rulings are not inviolate, but we do have a clear and convincing evidence standard.

[00:26:07] Speaker 00:
And in this case, two examiners who met during an examiner's interview with the applicant's representatives agreed to add this language to resolve a prior art

[00:26:17] Speaker 03:
I take your point, but that's obviously the case in every case, because we wouldn't be here unless there was a live patent that the examiners had approved.

[00:26:26] Speaker 03:
So I'm not sure you're right about the standard.

[00:26:30] Speaker 03:
It just does seem quite unusual.

[00:26:34] Speaker 03:
Granted, they may not be compelled to put on rebuttal evidence.

[00:26:38] Speaker 03:
But even in Centicor, I believe, there was discussion and there was documentation in the specification that was cited to support it, and here there's much less of that, if any.

[00:26:53] Speaker 00:
Well, the invention here is much simpler, Your Honor, and goes to the question of how do you configure a display to a computer in a world where there are lots of different types of displays.

[00:27:06] Speaker 00:
configuration problem that both experts agreed was an issue here.

[00:27:10] Speaker 00:
And the issue was what would one of skill in the art with a bachelor's in science and engineering get out of reading the specification?

[00:27:18] Speaker 00:
It's their burden.

[00:27:19] Speaker 00:
After Dr. Stevenson testified, his testimony was so contradictory, he was really destroyed on the witness stand, and it was clear he had no credibility.

[00:27:32] Speaker 00:
They put in six or seven transcript pages of a written description case, more for the record in this court than in the district court.

[00:27:40] Speaker 00:
And we don't have to put up rebuttal testimony when that happens.

[00:27:42] Speaker 00:
That's the law.

[00:27:43] Speaker 00:
Now, of course, if we're wrong and we come up on appeal, we have nothing to work with.

[00:27:48] Speaker 00:
But here, something happened that we didn't know would happen.

[00:27:51] Speaker 00:
The district judge made explicit credibility finding here that the witness was not credible.

[00:27:56] Speaker 00:
In which case, it's as if he didn't testify.

[00:27:58] Speaker 01:
So what?

[00:27:59] Speaker 01:
Even if you ignore his testimony, you have a problem because there isn't anything in the spec that talks about a type identifier.

[00:28:09] Speaker 00:
Your Honor, at column five, line 60, I'll just come back to that.

[00:28:14] Speaker 00:
It discusses a communication function, separates the world into two types of displays, those with communication function X and those without communication function X. Our experts said that means a display type.

[00:28:26] Speaker 00:
So the ID number in that example is being used to describe whether, determine whether a device falls within this plate type of communication function, A or B or C. That's a type.

[00:28:39] Speaker 00:
You don't need to be an electrical engineer to understand that.

[00:28:41] Speaker 00:
Unlike Centicor where the technology was extremely complicated and really all it was described was a research plan with a potential million possibilities.

[00:28:50] Speaker 00:
This isn't one of those cases.

[00:28:52] Speaker 03:
Do you have a citation to the testimony you're referring to?

[00:28:56] Speaker 03:
Is it Dr. Lam's?

[00:28:58] Speaker 00:
Yeah, sure.

[00:28:59] Speaker 00:
Certainly, Your Honor.

[00:28:59] Speaker 00:
It's Mr. Lam.

[00:29:01] Speaker 00:
It's at A15075, transcript pages 290 to 291.

[00:29:08] Speaker 00:
And he ties the ID number to a video format.

[00:29:11] Speaker 00:
And then I'd also point out column one.

[00:29:16] Speaker 01:
Where is this testimony?

[00:29:17] Speaker 01:
What page?

[00:29:18] Speaker 00:
I'm sorry, Your Honor.

[00:29:19] Speaker 00:
At the appendix 15-075, which are transcript pages, 290 to 91.

[00:29:26] Speaker 00:
Okay.

[00:29:27] Speaker 00:
Hold on a second.

[00:29:34] Speaker 01:
And what page of the transcript?

[00:29:38] Speaker 00:
290 to 291.

[00:29:39] Speaker 01:
290, 15-075.

[00:29:50] Speaker 03:
And where does he talk about the type?

[00:29:54] Speaker 00:
He doesn't use the word type.

[00:29:56] Speaker 00:
He says the communication function defines a video format.

[00:30:01] Speaker 03:
I misunderstood what you said.

[00:30:03] Speaker 03:
I thought you said he had talked about the type being in that section of the specification.

[00:30:08] Speaker 00:
I'm sorry.

[00:30:09] Speaker 00:
He said the communication function was a video format.

[00:30:12] Speaker 00:
Column 1, lines 41 to 44 of the patent tie video signal to type.

[00:30:20] Speaker 00:
I'm sorry, column one.

[00:30:23] Speaker 00:
Lines 41 to 44.

[00:30:30] Speaker 03:
And that's talking about the prior art?

[00:30:33] Speaker 03:
This is in the background section?

[00:30:35] Speaker 00:
Yes, it's in the background section, but it discloses that a video signal is a type to those who are still in the art, which I think is a fairly easy point to make, regardless of engineering background.

[00:30:48] Speaker 03:
And this is talking about in the prior art, right?

[00:30:51] Speaker 00:
Yes, which those who are still in the arc are charged with knowing.

[00:30:58] Speaker 03:
Okay.

[00:31:01] Speaker 03:
My colleagues have any further questions?

[00:31:02] Speaker 03:
I think I heard the bell.

[00:31:04] Speaker 03:
Katie, did the timing go off?

[00:31:07] Speaker 03:
Yes.

[00:31:08] Speaker 03:
Any further questions from Judge Hughes or Judge Dyke?

[00:31:11] Speaker 03:
No.

[00:31:13] Speaker 03:
Okay.

[00:31:13] Speaker 03:
Thank you very much.

[00:31:15] Speaker 03:
Let's hear, I guess there's some rebuttal time left for Mr. McKean.

[00:31:20] Speaker 03:
There's about 30 seconds for bottle time.

[00:31:23] Speaker 02:
OK.

[00:31:23] Speaker 02:
Well, we'll give you two minutes.

[00:31:25] Speaker 02:
Thank you, Chief Judge.

[00:31:27] Speaker 02:
I appreciate that.

[00:31:28] Speaker 02:
When the expert admitted across examination that type ID is not expressly disclosed, the burden persuasion is always on us, but burden production is on them.

[00:31:40] Speaker 02:
And with respect to the column one site we just heard from, it is true that there is a reference to type in column one with respect to the prior

[00:31:51] Speaker 02:
There's never any linkage of that disclosure to an ID at all.

[00:31:56] Speaker 02:
This is not in the specification.

[00:31:58] Speaker 02:
The column 5, line 60 reference, Mr. Black provided some testimony here, but there's nothing as far as I can tell on the record on discussing that, column 5, line 60, and certainly has nothing to do with type ID.

[00:32:13] Speaker 02:
5 line 60 talks about IDs, serial number that the ID type, the ID number that the specification explicitly discloses in the specification, not type ID at all.

[00:32:25] Speaker 03:
Do you have a case site for the burden of production being on them?

[00:32:29] Speaker 02:
Yes, I do, Your Honor.

[00:32:31] Speaker 02:
Give me a moment here and we'll get you that.

[00:32:35] Speaker 03:
If it's in your brief, never mind.

[00:32:37] Speaker 03:
I don't want to change it.

[00:32:37] Speaker 02:
It is actually in the brief.

[00:32:41] Speaker 03:
Final statement, because your clock is about to run out.

[00:32:44] Speaker 02:
The final statement is, during the prosecution's history, they amended the claim to add type ID.

[00:32:52] Speaker 02:
So now to argue on appeal that the ID number of the specification, written description, you can bootstrap from there into type ID.

[00:33:01] Speaker 02:
That just doesn't, it's not supported by the prosecution history.

[00:33:04] Speaker 02:
They added that and they specifically said during the markup reading at A1155 that type ID is different.

[00:33:14] Speaker 02:
It's something different than ID number of the SPAC that you can't equate the two.

[00:33:19] Speaker 02:
And with that I will rest.

[00:33:22] Speaker 03:
Thank you.

[00:33:23] Speaker 03:
And we thank both sides and the case is submitted.

[00:33:26] Speaker 02:
Thank you.