[00:00:00] Speaker 03: Councilor Waldrop, you have reserved three minutes of your time for rebuttal. [00:00:04] Speaker 03: Is that correct? [00:00:06] Speaker 00: Yes, your honor. [00:00:08] Speaker 03: You may proceed. [00:00:09] Speaker 00: May it please the court. [00:00:26] Speaker 00: There can be no doubt that the parties have at least three claim construction disputes over claim. [00:00:32] Speaker 02: Can I just get right to it? [00:00:34] Speaker 02: So let's get to docking port, which I think seems central to this case. [00:00:37] Speaker 02: And assuming you preserve your O2 micro challenge, what construction of docking port do you now want? [00:00:45] Speaker 00: It is the same construction that we advance at markman the alternative construction from docking port which was Hardware and or software that enables a wired or wireless connection. [00:00:55] Speaker 02: What does that mean? [00:00:57] Speaker 02: How is that defining a docking port? [00:00:59] Speaker 00: That is consistent with the claim language docking port is [00:01:07] Speaker 02: Hardware or hardware and our software that allows for a wired or wireless connection between the mobile device and the mobile set-top box Okay, so we're talking a connection between wait between the mobile device and the mobile set-top box Yes, your honor right and your concern, but that's not in your construction your construction just stops at wireless connection it doesn't describe what the connection is between and [00:01:34] Speaker 00: The docking port is hardware and or hardware software that allows for a wired or wireless physical connection or wireless connection between the device and the docking station docking port The claims your honor recite a mobile set-top box comprising a docking port configured to receive a mobile [00:01:58] Speaker 02: So the wireless connection is between the docking port and the mobile device? [00:02:04] Speaker 00: Yes, Your Honor. [00:02:05] Speaker 00: And the docking port is a part of the mobile set-top box with the wireless connection. [00:02:10] Speaker 02: I get all that. [00:02:10] Speaker 02: Here's my problem is where is the docking port and where is the connection when this is? [00:02:19] Speaker 02: Because your specification seems to suggest that that can all be done in one device. [00:02:28] Speaker 00: Yes, Your Honor. [00:02:29] Speaker 00: The claims are not limited to that, Your Honor, and the specification is not limited to that. [00:02:33] Speaker 00: So, Your Honor, the claim in column 5, line 64 through column 62... I get that. [00:02:38] Speaker 02: Can you just tell me, when it's all in one device, when there's not a separate mobile device and a separate station that contains the docking port, [00:02:49] Speaker 02: Where is the docking port in that all-in-one device? [00:02:53] Speaker 02: And where is that wired or wireless connection? [00:02:56] Speaker 00: When the docking port and the mobile device are integrated, there is no such connection necessary between [00:03:02] Speaker 00: the mobile device and the docking port of the mobile set-top box. [00:03:06] Speaker 00: When they integrated the mobile device and the mobile set-top box integrated, there is no such connection necessary. [00:03:12] Speaker 02: So there's no docking port? [00:03:13] Speaker 00: There is a docking port, but it's inside the mobile device and... What's docking inside of the mobile device? [00:03:19] Speaker 00: It's integrated. [00:03:20] Speaker 00: It's integrated. [00:03:21] Speaker 02: How do you call that docking? [00:03:23] Speaker 00: Oh, docking doesn't necessarily mean that it has to be physically connected. [00:03:28] Speaker 02: Look, I'm not going to hide my cards here. [00:03:29] Speaker 02: I don't think [00:03:31] Speaker 02: that the all-in-one device you're describing is claimed. [00:03:35] Speaker 02: It's in your specification, but I don't see it as claimed in these claims. [00:03:39] Speaker 02: And I think you're trying to twist the words of docking port to cover the Roku device. [00:03:44] Speaker 02: And I don't understand how the plain meaning of docking and your claims, which said accept a mobile device into a docking port, cover an integrated device where there's no docking going on. [00:03:56] Speaker 02: And you just said there's no wired or wireless connection in that. [00:04:00] Speaker 00: There is a wire connection when the two devices are combined. [00:04:06] Speaker 02: Yeah, no, I get this. [00:04:07] Speaker 02: I think your friend on the other side would be very happy to give you the clamp construction of two separate devices that are connected either wired or wirelessly. [00:04:17] Speaker 00: Yes. [00:04:18] Speaker 02: Right? [00:04:18] Speaker 02: Because theirs don't infringe that. [00:04:20] Speaker 02: Yes. [00:04:20] Speaker 02: They only infringe if it covers an integrated device. [00:04:24] Speaker 02: But I don't understand why an integrated device has a docking port that internally connects a mobile device with a station. [00:04:35] Speaker 02: It sounds like it's just a station that connects directly to the internet. [00:04:39] Speaker 00: No, Your Honor. [00:04:40] Speaker 00: That's actually the confusion. [00:04:41] Speaker 00: That was not the issue at trial and not the issue during marketing. [00:04:45] Speaker 00: Their issue was does a mobile device that connects wirelessly to a mobile set-top box without a physical connection [00:04:53] Speaker 00: Their position was that does not infringe the claims. [00:04:57] Speaker 00: Their position was the mobile device and the mobile set top box have to be physically connected to infringe. [00:05:02] Speaker 00: But the dependent claims of the patent claims 21 and 53 specifically discuss a wireless connection. [00:05:09] Speaker 00: So their interpretation reads out a wireless connection whereby I have my mobile device with no connection to a document. [00:05:17] Speaker 02: How does their device infringe? [00:05:19] Speaker 00: Their device infringes because I have my mobile device with video content on it. [00:05:23] Speaker 00: I want to cast that video content from my mobile device, my mobile phone, to the mobile set-top box, to a display device. [00:05:30] Speaker 00: That is exactly what the claims cover. [00:05:32] Speaker 02: Their position... No, I understand that's what the claims covered. [00:05:34] Speaker 02: I thought the Roku boxes don't connect to a mobile device. [00:05:37] Speaker 02: They just connect to the internet. [00:05:39] Speaker 00: No, they actually do connect to a Roku, to a mobile device because I have to be able to cast [00:05:45] Speaker 00: right, cast and send data from my mobile device, video content, to the Roku player, a Roku stick, from my mobile device, which then appears on the display device. [00:05:54] Speaker 02: OK, is that a functionality? [00:05:55] Speaker 02: Because a lot of Roku devices just connect to your Wi-Fi network without a mobile device. [00:06:00] Speaker 00: Yes, but this is not claiming that. [00:06:02] Speaker 00: This is claiming casting from a mobile device, not from the Roku player, from the Roku player navigating the Roku player. [00:06:09] Speaker 00: This functionality talks about casting video content, be it from the internet or from your phone, from your phone or mobile device to the Roku player to appear on the display device. [00:06:20] Speaker 00: That is the accused functionality that was claimed. [00:06:22] Speaker 02: That's what in frame is. [00:06:23] Speaker 02: Can I just clarify that? [00:06:24] Speaker 02: If all we were talking about was a Roku device that connects directly to a wireless network through Wi-Fi or whatever other means through, you know, cell phone capability and there is no mobile device involved, that wouldn't be covered by your claims. [00:06:46] Speaker 00: the ability to claim one with your right, Your Honor. [00:06:49] Speaker 00: It has to have a mobile device input. [00:06:52] Speaker 00: Yes, Your Honor. [00:06:52] Speaker 00: We're claiming casting from your mobile device. [00:06:54] Speaker 02: OK. [00:06:56] Speaker 02: Because I think that just started to complicate things for me. [00:06:59] Speaker 02: What if their device doesn't connect through Wi-Fi, but it connects through cell phone capacity? [00:07:06] Speaker 02: So there's no separate mobile device, but you would consider this all in one box, a mobile device [00:07:11] Speaker 02: itself but there's nothing there's no separate thing casting to the Roku it is the Roku connects through a cell phone signal and gets video content and then shows it to the TV [00:07:30] Speaker 00: Your honor, the claims of this patent are focused on a mobile set-top box that has a mobile device input, in which the mobile device casts through. [00:07:38] Speaker 00: So the claim, the limitation, the infringement theories presented at trial all went to mobile devices. [00:07:45] Speaker 02: I just want to clarify, because the briefing in this case was utterly confusing to me, particularly because the specification includes this integrated box. [00:07:54] Speaker 02: But it sounds to me that I've gone down [00:07:56] Speaker 02: a rabbit hole that I didn't need to go down looking at this integrated device. [00:08:00] Speaker 00: No, Your Honor. [00:08:01] Speaker 00: You do not need to focus on the integrated device. [00:08:03] Speaker 00: The integrated device is irrelevant to what happened at trial and what the central issue is in this case. [00:08:07] Speaker 03: Counselor, I have a couple of questions, and they go to your 02 microchallenge. [00:08:14] Speaker 03: And when I look at the record, I see that there's various points where you could have sought a supplemental construction, but you did not do that. [00:08:24] Speaker 03: And in fact, the only point that you raise a challenge, a construction-related challenge, is that your motion for a new trial. [00:08:36] Speaker 03: Do I have that right? [00:08:37] Speaker 00: No, Your Honor. [00:08:38] Speaker 00: That's not what happened, Your Honor. [00:08:40] Speaker 00: We proposed alternative constructions for every term, including the docking port term, which was the term we just discussed. [00:08:45] Speaker 03: That's the beginning. [00:08:46] Speaker 03: You proposed alternative, but after that. [00:08:48] Speaker 00: After that, we found a Daubert and a Mill at pretrial disputing Roku's attempt to incorporate... But did you submit, did you request a supplemental construction at that time? [00:09:01] Speaker 00: We asked for clarification. [00:09:04] Speaker 00: We pointed out that the claim constructions that Roku was presenting had been rejected specifically by the district court at Markman. [00:09:10] Speaker 00: So the same constructions that they were presenting at trial and doing pretrial briefing had been specifically rejected by the district court. [00:09:18] Speaker 00: We won that dial work. [00:09:20] Speaker 00: We then objected at trial. [00:09:23] Speaker 00: Those objections were sustained and overruled. [00:09:27] Speaker 00: We then had a mini markman because we were in a COVID situation, Your Honor. [00:09:31] Speaker 00: So the pandemic and the circumstances led to the error. [00:09:35] Speaker 00: Because we couldn't object as falsely, there were no sidebars. [00:09:39] Speaker 00: The court refused or declined to resolve the O2 micro dispute before the jury came in. [00:09:44] Speaker 00: So we had to object slide by slide. [00:09:46] Speaker 00: So what occurred was a mini markman on the docking port issue in front of the jury. [00:09:51] Speaker 00: That is what happened. [00:09:52] Speaker 00: We objected slide by slide. [00:09:54] Speaker 00: And in fact, what is telling, Your Honor, is Roku filed a supplemental claim construction brief on docking port at trial after their expert had taken a stand and advanced rejected claim constructions. [00:10:07] Speaker 00: The Tushar court overruled it. [00:10:09] Speaker 00: We were prepared to full-simly respond to it. [00:10:11] Speaker 03: Where would I look to find your objection to, the specific objection that you raised in your motion for a new trial, [00:10:18] Speaker 03: Where would I find that in the record, either at trial or prior to trial? [00:10:24] Speaker 00: Your Honor, you could find the Daubert rulings, Your Honor. [00:10:29] Speaker 00: You could find that person. [00:10:30] Speaker 03: I want your specific objection, not the Daubert ruling. [00:10:34] Speaker 00: Oh, the specific objections, Your Honor, were found that if you were to look at [00:10:39] Speaker 00: APX 4941 which is 67 20 through 25 APX 55 37 if you look at our brief 22 the district court even knowledge your honor that in the future that it needs to be more careful with rejected claim instructions what brief at 22 our brief at 22 your honor [00:11:00] Speaker 03: No, which brief? [00:11:02] Speaker 03: The one you filed in this case? [00:11:03] Speaker 00: Yes, sir. [00:11:03] Speaker 00: The appellant brief. [00:11:04] Speaker 00: I'm talking about below. [00:11:05] Speaker 00: Yes, sir. [00:11:05] Speaker 00: The appellant brief, Your Honor. [00:11:07] Speaker 00: Is that the one you're talking about or the one below? [00:11:08] Speaker 03: No, I'm talking about before the district court. [00:11:11] Speaker 00: Ah, Your Honor, if you were to... What are the objections that you raised? [00:11:15] Speaker 00: In the briefing of her new trial? [00:11:18] Speaker 00: I'm pointing to the record that's cited in the briefing before this court, Your Honor. [00:11:21] Speaker 00: There are citations in the briefing there. [00:11:23] Speaker 03: Not the briefing before this court, sir. [00:11:26] Speaker 03: I'm talking about where in the trial below, before the district court, did you raise objections that you later raised in your motion for a new trial? [00:11:37] Speaker 00: Yes, Your Honor. [00:11:38] Speaker 00: APPX 6324 through 6324. [00:11:41] Speaker 00: APPX 6324 through 6326. [00:11:51] Speaker 00: You have anything more specific that's a lot of pages a ppx 62 23 at Five lines 1 through 15. [00:12:00] Speaker 00: This is right before Roku's expert took the stand we request So a ppx 62 33 and five page five lines 1 through 15 [00:12:14] Speaker 00: We indicated to the court that there was confusion regarding the claim construction, and that if the court did not clarify, justice would not be achieved. [00:12:23] Speaker 00: This is cited in our briefing in block quotes. [00:12:25] Speaker 00: When we raised this issue with the court, the court even acknowledged that Roku slides at that time were problematic, and they looked like they were from a margarine hearing rather than for trial. [00:12:35] Speaker 00: But the court said that it was not going to relitigate claim construction at that time, and we were going to have to object slide by slide. [00:12:43] Speaker 02: Why is this an O2 micro problem? [00:12:46] Speaker 02: Because the construction you're arguing for is the construction the district court gave it, right? [00:12:52] Speaker 00: The O2 micro problem is because the claim construction that was allowed to be advanced by Roku precluded claim scope that was specifically claimed in the patent claims 21 and 23. [00:13:02] Speaker 02: That wasn't the claim construction adopted by the district court in governing the trial. [00:13:08] Speaker 02: I mean, O2 micro is when [00:13:11] Speaker 02: There is no claim construction given, and there should have been one. [00:13:15] Speaker 02: Here, the district court made clear what the scope was. [00:13:18] Speaker 00: Your Honor, the district court left unresolved claim scope. [00:13:21] Speaker 00: We actually disagree. [00:13:22] Speaker 02: The district court... OK, I don't agree with you on that. [00:13:24] Speaker 02: Let's just proceed from that, because the district court adopted what you just got up here and told me at the beginning of your argument that it included. [00:13:33] Speaker 02: Why not? [00:13:33] Speaker 02: That's exactly what he said, isn't it? [00:13:35] Speaker 00: No, Your Honor, the district court said that docking port was plain or near meaning. [00:13:40] Speaker 00: It didn't edit it. [00:13:40] Speaker 02: And then when you clarified at a certain point, he put in, he agreed with your language or you all stipulated, there's an agreement to that construction. [00:13:49] Speaker 00: No, Your Honor. [00:13:49] Speaker 00: There was plain, ordinary meaning. [00:13:51] Speaker 00: And then there was a codicil with a party degree. [00:13:53] Speaker 00: It could be hardware and or hardware and software. [00:13:56] Speaker 02: Which is what you just advocated to me as the proper construction. [00:14:00] Speaker 00: No, that's not the proper construction. [00:14:02] Speaker 00: That would be the proper construction if Roku had not been allowed to go into court and say. [00:14:06] Speaker 02: OK. [00:14:07] Speaker 02: So you're talking about this wired or wireless connection. [00:14:10] Speaker 00: They said. [00:14:11] Speaker 02: That's the proper construction. [00:14:12] Speaker 00: Yes. [00:14:13] Speaker 02: Where in the record did you propose that construction to the district court and you protected it? [00:14:18] Speaker 00: At the Markman. [00:14:19] Speaker 00: At the Markman, we proposed plain and ordinary meaning, or if the court thought it was necessary... Well, you're the one that proposed plain and ordinary meaning. [00:14:25] Speaker 02: You didn't propose this construction you're now advocating. [00:14:28] Speaker 00: We did. [00:14:29] Speaker 02: After the Markman, where did you again propose it? [00:14:31] Speaker 00: We proposed plain and ordinary meaning, or if the court thought a construction wasn't necessary, we proposed an alternative construction at the Markman. [00:14:38] Speaker 00: So we said, look, Your Honor. [00:14:40] Speaker 02: I don't care what you did at the Marksman. [00:14:41] Speaker 02: Where did you propose it again? [00:14:43] Speaker 02: And he rejected it. [00:14:45] Speaker 00: During Daubert, we filed a Daubert to preclude the argument that it was exclusive, that you had to have a physical connection between the mobile tent top box and the mobile device. [00:14:54] Speaker 00: That had been specifically rejected. [00:14:54] Speaker 02: That doesn't sound like proposing a claim construction. [00:14:56] Speaker 02: That sounds like filing a Daubert motion against their testimony. [00:15:00] Speaker 00: Yes, because it went outside the claim construction order. [00:15:03] Speaker 00: You have to also remember, Your Honor, that we filed in motion and limiting at the pretrial level, precluding Roku from arguing outside of the pretrial order. [00:15:11] Speaker 02: I don't disagree with you that there's a lot of testimony that went in here that shouldn't have went in. [00:15:15] Speaker 00: Yes, Your Honor. [00:15:16] Speaker 02: This does not seem like an O2 micro issue, though. [00:15:18] Speaker 02: It seems like an evidentiary issue. [00:15:20] Speaker 00: It is both, we believe. [00:15:21] Speaker 02: It is both. [00:15:22] Speaker 02: Why aren't you arguing that the district court abused its discretion in allowing this testimony? [00:15:26] Speaker 00: We did argue that as well, Your Honor. [00:15:28] Speaker 00: We've argued, one, that it was an O2 microdispute. [00:15:30] Speaker 02: I know, but you didn't get up here and present that as your main argument. [00:15:33] Speaker 00: Well, I'm prepared to go to that second after the questioning, Your Honor. [00:15:39] Speaker 04: Before you sit down, let me just tell you where I am. [00:15:42] Speaker 04: This case was tried to the jury. [00:15:44] Speaker 04: We've all been talking about the docking limitation, right? [00:15:49] Speaker 04: That's been the entire conversation. [00:15:51] Speaker 04: My understanding was that the defendant said there are two or three other limitations in the claim that our product doesn't meet. [00:15:59] Speaker 04: And they had testimony by experts to that effect. [00:16:03] Speaker 04: And the jury, regardless of what the jury found on docking port, regardless whether it was error, O2 micro or otherwise, it seems to me there are independent grounds to support the jury verdict. [00:16:18] Speaker 04: That is to say the other limitations that were argued as not being met by the accused product. [00:16:26] Speaker 04: In the motion for the new trial, your adversaries opposed the motion for a new trial alternatively on the ground that the jury verdict was perfectly sustainable on these other limitations. [00:16:39] Speaker 04: In that, in your response to that argument, you didn't counter that. [00:16:46] Speaker 04: So in front of the district court judge, when the district court judge was looking at your motion for a new trial, the district court says to himself, I don't have to worry about error on the docking port because there are at least two, if not three other limitations that the defendant said were not met, argued that to the jury, and you did not contest that at all. [00:17:09] Speaker 04: The same argument is made here on appeal that there's an alternative ground to affirm. [00:17:13] Speaker 04: that totally elides the entire discussion of docking port. [00:17:18] Speaker 04: That is to say, the limitations that were said to the jury not to infringe and you didn't object. [00:17:23] Speaker 04: And you haven't objected in this court. [00:17:26] Speaker 04: So for my money, I don't need to worry about the docking port because there were independent grounds for sustaining the jury verdict. [00:17:35] Speaker 04: When you have a black box verdict, our job is to decide whether the verdict is sustainable. [00:17:42] Speaker 04: What's your response to that? [00:17:44] Speaker 04: You didn't have any response in your brief, in your reply brief at all, to an alternative argument. [00:17:51] Speaker 00: Your Honor, I think we did, Your Honor, but first... No, you didn't. [00:17:53] Speaker 04: Show me in your gray brief where there's one word that deals with this alternative argument. [00:18:00] Speaker 00: Well, Your Honor, I think on the reply brief... [00:18:03] Speaker 00: Take the seven through ten your honor we talk about seven to ten yes, sir We talk about one that docking port is found in all the claims So the term docking port is in all the claims television signal is not found in all the claims Moreover Roku's experts spent twice as much time on the top there are there is one limitation That's in all the claims, and that's docking port. [00:18:24] Speaker 04: No. [00:18:24] Speaker 00: There's another one television signal is not in all the asserted claims mobile set-top boxes in all the [00:18:30] Speaker 00: asserted claims, but that was not the central issue. [00:18:32] Speaker 00: Docking port was in all the asserted claims. [00:18:34] Speaker 00: Television signal was not. [00:18:36] Speaker 00: Roku's experts spent twice as much time on docking port as the other claim terms. [00:18:42] Speaker 00: It was front and center. [00:18:43] Speaker 00: To respond to Judge Hughes' point, I want to make sure we believe that the district court abused its discretion in refusing to enforce its orders and allowing for the very thing that proper claim construction was supposed to prevent, which was a running gun battle over claim construction during trial. [00:18:58] Speaker 00: The jury was set adrift because of COVID and the pandemic. [00:19:03] Speaker 00: Many arguments that were not supposed to be put in front of the jury about what the claim scope was, the very argument that discussion I had with Judge Hughes regarding this, that played out in front of the jury. [00:19:13] Speaker 00: because of the pandemic and because of the court's procedure to try to keep us safe. [00:19:17] Speaker 00: But this same colloquy, which we think affected the entire proceeding, played out in front of the jury. [00:19:23] Speaker 00: And that is what Markman is supposed to prevent. [00:19:25] Speaker 00: And we believe the docking port was the very first thing that they said in their opening statement, Judge Cleverger. [00:19:31] Speaker 00: They said, we don't have a docking port because a physical connection is required between a mobile device and the mobile set-top box. [00:19:37] Speaker 00: Claims 21 and 53, the lie of that claim scope is implicated. [00:19:41] Speaker 00: We think we deserve a new trial yard. [00:19:43] Speaker 03: All right. [00:19:44] Speaker 03: Thank you, counsel. [00:19:44] Speaker 03: We've got your arguments. [00:19:46] Speaker 03: You're way over your rebuttal time, but I'll give you back some time later on, okay? [00:19:50] Speaker 03: Thank you. [00:19:51] Speaker 03: I appreciate it. [00:19:56] Speaker 03: Mr. Unikowski. [00:20:09] Speaker 01: Thank you your honors may please the court District court did not commit any reversible error. [00:20:14] Speaker 03: I'm gonna ask you to speak up just a little bit. [00:20:16] Speaker 03: Okay. [00:20:16] Speaker 01: I'm sorry your honor The district court did not commit any reversible error that warrants overturning the jury verdict in this case Therefore the judgment of the district court should be affirmed Could you just clarify right away whether I'm off base because I was suggesting there was an alternative ground here I saw that and [00:20:34] Speaker 04: in your brief, but the argument was that docking port is the only limitation that is in all the claims. [00:20:40] Speaker 04: Is your adversary correct on that? [00:20:42] Speaker 01: No, you are not off base. [00:20:44] Speaker 01: Correct, Your Honor. [00:20:45] Speaker 01: We made other arguments. [00:20:46] Speaker 01: For instance, multicast is a limitation that appears throughout the claims. [00:20:49] Speaker 01: Which is it? [00:20:52] Speaker 01: Multicast versus unicast, that's an argument. [00:20:54] Speaker 01: We raised it in our [00:20:56] Speaker 01: in our brief as independent grounds supporting the verdict. [00:20:58] Speaker 04: So is there any other limitation that's in all the claims that you can point to? [00:21:02] Speaker 01: Yes, I believe authenticating the validity of a user is in all the claims. [00:21:05] Speaker 01: Is that in all the claims? [00:21:06] Speaker 01: I believe it is, yes, Your Honor. [00:21:08] Speaker 04: You believe or you know? [00:21:10] Speaker 01: I'm sorry? [00:21:10] Speaker 04: You believe or you know? [00:21:11] Speaker 01: No, it is, yes. [00:21:12] Speaker 01: Yes, Your Honor. [00:21:13] Speaker 01: These are all independent. [00:21:15] Speaker 04: I thought authenticating was in all the claims. [00:21:17] Speaker 01: Yes, yes. [00:21:19] Speaker 01: And so those are independent grounds to affirm the verdict. [00:21:21] Speaker 02: And there's evidence that you don't authenticate in the way required by the patent? [00:21:25] Speaker 01: Yes, Your Honor. [00:21:26] Speaker 01: In fact, we think that, you know, yes, we submitted evidence on both of those claim limitations. [00:21:31] Speaker 01: We don't think that there's a multicast here because every signal goes to only one user of the Yoke Roker device. [00:21:39] Speaker 01: And we don't authenticate the validity of the user, we authenticate maybe a device, but that's different from authenticating the user. [00:21:46] Speaker 01: The Roku device doesn't know what user is using it. [00:21:48] Speaker 02: And what evidence is that in your extrovert report? [00:21:50] Speaker 01: Yes, we present a testimony, a trial on this, it's described at the end of our brief. [00:21:55] Speaker 01: So yes, we had multiple independent grounds to uphold the jury verdict, independent of the ones that are litigated. [00:22:01] Speaker 01: I'd also point out that on television signal and mobile set top box, it's extremely unlikely that the asserted errors would have affected the verdict, because those were only non-imprisonment arguments for one set of accused devices, the Roku players. [00:22:16] Speaker 01: But there was non-imprisonment for both sets of accused devices. [00:22:19] Speaker 01: So it's extremely unlikely. [00:22:20] Speaker 02: I mean, even if we agree with you on television signal, though, which I tend to think I do, that isn't in at least one of these claims, right? [00:22:29] Speaker 01: That's right. [00:22:30] Speaker 01: Mobile set-top box is in every claim, however. [00:22:33] Speaker 01: But yes, television signal is not. [00:22:34] Speaker 01: And the jury found non-infringement on every assertive claim. [00:22:38] Speaker 02: Right. [00:22:38] Speaker 02: In terms of this alternative ground, we can't look to television signal to support the entire jury verdict, because there's one claim that doesn't have one. [00:22:47] Speaker 01: Right. [00:22:47] Speaker 01: But mobile set-top box, it does appear in every claim. [00:22:51] Speaker 02: Does a mobile set-top box kind of bring back in the docking port issue? [00:22:54] Speaker 01: No, it doesn't. [00:22:55] Speaker 01: That brings in potentially the television signal issue. [00:22:57] Speaker 01: That's totally independent of docking port. [00:23:00] Speaker 01: And as we say at the end of our briefs, there's other totally independent grounds to uphold this jury verdict. [00:23:04] Speaker 01: The multicast and authenticity. [00:23:05] Speaker 01: Yes, and authenticating the validity of the user. [00:23:08] Speaker 01: There's a chart at the front of our brief which summarizes... So those are the ones we've raised in our brief. [00:23:12] Speaker 01: I think those are the clearest and cleanest arguments because they apply to all the claims and all the products. [00:23:17] Speaker 01: But there's a chart at the front of our brief listing all of our non-infringement arguments, all of which were supported by expert testimony at the trial. [00:23:24] Speaker 03: I asked counsel on the other side several questions concerning when did they object to the construction that was at play during the trial. [00:23:34] Speaker 03: And he pointed to different parts of the record. [00:23:37] Speaker 03: Is it your view that objections were made to the construction during that time? [00:23:42] Speaker 01: They were not made. [00:23:43] Speaker 01: This argument is waived. [00:23:44] Speaker 01: MP3 Partners got the exact claim constructions it advocated for at the Markman hearing, and it never wavered from those constructions. [00:23:51] Speaker 01: It felt like it won at the Markman hearing. [00:23:53] Speaker 01: The judge did exactly what it asked it to do. [00:23:56] Speaker 01: Now, it's true that ME3 partners filed a Daubert motion, but as this court has held, that's very different from objective to a claim construction. [00:24:03] Speaker 01: In a way, it's the opposite argument. [00:24:05] Speaker 01: The Daubert motion is presuming that the claim constructions are complete and correct and merely asking the testimony to conform to those presumptively complete and correct constructions, which is quite different from saying that the constructions themselves [00:24:18] Speaker 01: are wrong or incomplete. [00:24:20] Speaker 02: And just to clarify, is the construction they got that you think is the one they wanted that it can be done through hardware or hardware and software? [00:24:28] Speaker 01: That's right. [00:24:28] Speaker 01: So they advocated plain and ordinary meaning. [00:24:30] Speaker 01: And the judge gave that to them over our objection. [00:24:33] Speaker 01: And then there's these discussions back and forth at the Markman hearing over the hardware and hardware and software. [00:24:39] Speaker 01: And the parties agreed. [00:24:40] Speaker 01: Because it was actually Roku that raised what we thought was a latent ambiguity in the claim construction, or in the absence of a claim construction. [00:24:48] Speaker 01: And then the party stipulated, and the court agreed to add that to the Markman order, and then the jury was instructed on it. [00:24:53] Speaker 02: Did they ever argue, because it seems to me the whole, I don't frankly understand the hardware, hardware and software construction, because the heart of this seems to me to be whether the mobile device can connect wirelessly or it has to be a physical connection. [00:25:08] Speaker 01: Right. [00:25:08] Speaker 01: So we think it has to be a physical connection. [00:25:10] Speaker 01: And that was the point of raising this point at the Markman hearing. [00:25:12] Speaker 01: You can see in the transcript of the Markman hearing that Roe and his lawyer. [00:25:17] Speaker 02: So your view is they never specifically advocated for the wireless? [00:25:22] Speaker 02: I mean, he says they did it in an alternative. [00:25:24] Speaker 02: I'm a little confused about that. [00:25:26] Speaker 02: If your main construction is plain language and you get [00:25:29] Speaker 02: what you want, then you can't complain later. [00:25:31] Speaker 01: Exactly. [00:25:32] Speaker 01: And they certainly didn't. [00:25:33] Speaker 01: In fact, they doubled down on that. [00:25:34] Speaker 01: They kept asking the court to stick to its constructions on every issue and decline and prevent us from allegedly presenting evidence conflicting with that. [00:25:42] Speaker 01: And I think it's quite easy to see why the court distinguishes between an O2 micro objection, asking the court to construe the claim, and a kind of Daubert motion, asking the court to exclude testimony. [00:25:53] Speaker 01: The strategic considerations are quite different. [00:25:56] Speaker 01: If you file a Daubert motion or ask to exclude testimony, there's really only upside for the movement, because if you win, the other side can't present testimony, and if you lose, you're sort of back to where you were. [00:26:07] Speaker 01: Whereas when you ask the court to construe a claim, that's a real strategic decision, because if the court says, okay, then maybe you'll get a claim construction you don't like. [00:26:16] Speaker 01: And so in this case, strategically, MV3 partners got the claim constructions it asked for, either plain and ordinary meeting or the construction of this mobile set-top box that it asked for. [00:26:26] Speaker 01: And it never wavered from that. [00:26:27] Speaker 01: It was very happy with those constructions. [00:26:30] Speaker 01: So let me just ask you. [00:26:31] Speaker 02: The hardware connection, only through hardware, seems like it definitely requires a physical connection. [00:26:36] Speaker 02: Yes. [00:26:36] Speaker 02: Hardware with software. [00:26:41] Speaker 02: That still seems like there's a point of disagreement there about whether it requires a physical connection or not. [00:26:46] Speaker 02: But there was never any further argument that that could be completely wireless in terms of claim construction. [00:26:52] Speaker 01: So I have to say that when we asked the court to have this stipulation, the point of this was to ensure that it wasn't both wired and wireless. [00:27:00] Speaker 01: You can see in the transcript of the Markman hearing [00:27:02] Speaker 01: Roku's counsel said that MV3 Partners is asking for both wired and wireless, which is contradicted by the language of the claims. [00:27:09] Speaker 01: So the point of our asking for both hardware or hardware and software was to exclude the wireless embodiment that MV3 Partners was accusing of infringement. [00:27:20] Speaker 01: That's why we had this dialogue. [00:27:21] Speaker 01: That's why I don't think we can be accused of misconduct by the testimony presented at trial. [00:27:26] Speaker 01: From our perspective, the whole point of this colloquy [00:27:29] Speaker 01: at the Markman hearing was to allow us to present this very testimony at trial. [00:27:34] Speaker 01: And MV3 partners didn't object. [00:27:36] Speaker 02: I mean, if the dispute was about wired versus wireless, one would expect that to be explicitly discussed somewhere. [00:27:44] Speaker 02: And I didn't see it. [00:27:46] Speaker 02: Maybe your friend can point to it. [00:27:49] Speaker 01: Well, I mean, at the Markman hearing, I'm going to just read off the transcript of the Markman hearing. [00:27:54] Speaker 01: It's at 11. [00:27:59] Speaker 01: 30 I believe it is so So so rope this council says there's a dispute again starting here mv3 is arguing that a docking port as it exists in the claims is software or hardware and [00:28:14] Speaker 01: used for communication between the mobile sat-dot box and the mobile computing device. [00:28:18] Speaker 01: That's a top of 1130. [00:28:20] Speaker 01: And then he says, OK, this argument is absolutely contradicted by the language and the claims themselves. [00:28:26] Speaker 01: And then you'll see at page outlines 20 to 23 of the transcript of the Markman hearing, he says, now, if you look at exactly what each of those components does, [00:28:36] Speaker 01: it is clear that the docking port cannot be something that involves a wired or wireless connection. [00:28:41] Speaker 01: So that's the argument he was making to the court at the Markman hearing. [00:28:44] Speaker 01: From our perspective, that was the whole point of the stipulation. [00:28:47] Speaker 01: So I don't, I mean, we weren't committing misconduct. [00:28:50] Speaker 01: The argument that Dr. Russ made was from our perspective, exactly what we stipulated that we should be able to make at the Markman hearing. [00:28:57] Speaker 01: But honestly, I think this illustrates the benefit of the contemporaneous objection rule. [00:29:01] Speaker 01: Because what MB3 Partners is essentially saying is that Roku committed misconduct because the judge made some kind of implicit statement, this oblique statement in a colloquy at the Markman hearing that didn't even make it into the Markman order that we were somehow violating. [00:29:17] Speaker 01: But we had no idea that MB3 Partners had this perspective until after the jury returned its verdict. [00:29:23] Speaker 01: So I don't think we can be accused of misconduct [00:29:25] Speaker 01: based on some interpretation of the Markman transcript that MB3 partners never even presented to the district judge. [00:29:32] Speaker 03: Well, counsel on the other side has argued that they made timely objections during the trial, but there was some problem with the slides, I guess. [00:29:40] Speaker 01: No, Your Honor, that is simply incorrect. [00:29:42] Speaker 01: I mean, I urge the court to just look at the colloquy that's been cited to the court. [00:29:46] Speaker 01: So most of that colloquy was a discussion with respect to the slideshow as a whole. [00:29:51] Speaker 01: There was something like over 100 slides. [00:29:54] Speaker 01: And there's a very general objection from MV3 Partners Council saying something like, a lot of these slides are really bad because they go against the Markman hearing. [00:30:03] Speaker 01: So we urge you to conform the slides to the Markman hearing. [00:30:06] Speaker 01: And the judge is very reasonable on this. [00:30:09] Speaker 01: What the judge says is, okay, here's what we're going to do. [00:30:11] Speaker 01: I'm not going to rule on 100 slides right now. [00:30:14] Speaker 01: So you're not going to tell us, Roku, you don't publish the slides to the jury. [00:30:18] Speaker 01: until I've had a chance to see them, and then MV3 Partners has had a chance to object. [00:30:23] Speaker 01: So I'll even point you to the place in the transcript. [00:30:25] Speaker 01: It's at page 6236 of the Joint Appendix, where the judge offers this guidance as to how it's going to proceed on this. [00:30:33] Speaker 01: It says, the court. [00:30:33] Speaker 01: This is at line 18, 6236. [00:30:35] Speaker 01: The court. [00:30:37] Speaker 01: OK. [00:30:37] Speaker 01: When Dr. Russ is on the stand, you can say, I intend to discuss slide number 10. [00:30:41] Speaker 01: I will turn to slide number 10. [00:30:43] Speaker 01: Make sure your folks don't put it up. [00:30:45] Speaker 01: The defendant can decide whether or not to object. [00:30:48] Speaker 01: If the defendant objects, I'll hear the objections. [00:30:51] Speaker 01: I've been through all of them, and whoever's putting Dr. Russ on can respond as to why it's not objectionable. [00:30:56] Speaker 01: So the judge is saying you have every chance in the world to object to the slide if you don't agree with it. [00:31:00] Speaker 01: So this is not a general objection to the slides as a whole, followed by an instruction by the judge that if you have a specific slide you don't like, you have to object to that slide. [00:31:10] Speaker 01: That's not preserving anything. [00:31:12] Speaker 01: And then you get to the testimony of Dr. Russ. [00:31:15] Speaker 01: First of all, there is definitely nothing even approaching a request to construe the claim or alter the claim construction. [00:31:22] Speaker 01: Not during Dr. Russ' testimony, not during the claim construction, not during the jury charge conference. [00:31:28] Speaker 01: Obviously, because MD3 Partners won from its perspective at the Markman hearing, it got plain and ordinary meaning that's exactly what it wanted. [00:31:35] Speaker 01: And so, of course, it didn't want the judge to change the claim construction. [00:31:38] Speaker 01: It was perfectly happy with what it got. [00:31:40] Speaker 02: Can you, are you aware, I know I kind of asked this and you kind of answered it, but I looked at what you said and it didn't resolve it for me. [00:31:47] Speaker 02: Did they ever specifically ask for a claim construction that said a docking port, the connection between the mobile device and the docking port can be wired or wireless? [00:31:57] Speaker 01: No, I don't think so. [00:31:58] Speaker 01: I mean, the claim construction that's quoted in the brief was the claim that I think Your Honor quoted during the opening argument. [00:32:04] Speaker 01: That was the claim construction that they asked for. [00:32:06] Speaker 01: I don't think that their claim construction cleared up the alleged ambiguity that is being raised here. [00:32:12] Speaker 01: But I don't think the court even needs... The hardware or the hardware versus software? [00:32:15] Speaker 01: Right. [00:32:16] Speaker 02: I don't think it cleared it up either, which seems to be a little bit of the problem in some sense that if that's now the heart of the case, that should have been asked for. [00:32:25] Speaker 02: But again, I don't ever see that being explicitly asked for. [00:32:29] Speaker 02: It was asked for maybe in an alternative to plain and ordinary meaning. [00:32:33] Speaker 02: But I don't understand how that's good enough. [00:32:36] Speaker 01: I agree, Your Honor. [00:32:37] Speaker 01: I mean, I think that the easiest way to resolve this case is to simply say that when you ask for plain and ordinary meaning and you get it, then you can't assert it's an invited error in some sense. [00:32:46] Speaker 01: You can't assert that the district court erred in doing exactly what you asked the district court to do. [00:32:51] Speaker 03: Well, I guess you could if you began to make timely objections to any type of construction that the judge is embarking on. [00:33:00] Speaker 01: Sure. [00:33:00] Speaker 01: So I think there is certainly a class of cases in which, you know, an expert report is served and suddenly the parties realize that there's this latent ambiguity in the construction. [00:33:09] Speaker 01: Maybe they didn't realize it at the Markman hearing. [00:33:10] Speaker 01: You know, that happens sometimes. [00:33:12] Speaker 01: And then you can say, OK, Your Honor, look, there's this ambiguity in the constructions. [00:33:16] Speaker 01: We didn't realize before, before expert reports. [00:33:18] Speaker 01: Now we know. [00:33:19] Speaker 01: Please go ahead and construe the claims. [00:33:20] Speaker 01: That's fine. [00:33:21] Speaker 01: I think the judge has a duty to entertain that kind of motion. [00:33:24] Speaker 01: But the exact opposite thing happened in this case. [00:33:27] Speaker 01: We served our expert report many months before trial. [00:33:30] Speaker 01: And then MV3 partners made the opposite argument. [00:33:33] Speaker 01: They said, Your Honor, you should stick to your claim constructions that you've already rendered and exclude testimony that allegedly conflicted with the claim constructions. [00:33:41] Speaker 02: And the ambiguity that we have here now is back to that. [00:33:45] Speaker 02: You think the connection has to be physical somehow. [00:33:50] Speaker 02: So it excludes a total wireless connection. [00:33:52] Speaker 02: And they think it can be wired or wireless. [00:33:56] Speaker 02: Yes, that's the dispute. [00:33:58] Speaker 02: That dispute, was that ever explicitly raised to the district court at any time? [00:34:05] Speaker 01: The claim construction dispute, I mean, no, certainly not by MV3 partners. [00:34:08] Speaker 01: I have to say, looking at this claim, I think maybe one reason the district judge offered a plain and ordinary meeting instruction is I just think it's clear. [00:34:18] Speaker 01: It says, a docking port configured to accept a mobile computing device. [00:34:22] Speaker 01: That sounds like a thing. [00:34:24] Speaker 01: Something docks and it accepts the device. [00:34:27] Speaker 01: That sounds like the device is stuck to it. [00:34:30] Speaker 01: I understand that opposing counsel talked about wireless embodiments. [00:34:34] Speaker 01: But, you know, the wireless embodiments come from a different claim limitation. [00:34:38] Speaker 01: The mobile device input that receives the media content, which is the limitation below docking port, you can see in Paige's little eye, Romanette's eye of the opening brief. [00:34:48] Speaker 01: So that can be wired or wireless. [00:34:50] Speaker 01: We're not saying that wireless embodiments are excluded. [00:34:53] Speaker 01: We're simply saying that the docking port limitation has to be a physical connection. [00:34:57] Speaker 01: And I think an ordinary English speaker would say, a docking port configured to accept a mobile computing device is a physical thing. [00:35:02] Speaker 02: Well, that seems to be a reasonable reading of docking port. [00:35:05] Speaker 02: And if a different construction had been needed, it should have been explicitly proposed. [00:35:10] Speaker 01: I agree, Your Honor, with that. [00:35:13] Speaker 01: I see my time has expired. [00:35:14] Speaker 01: If there's any other questions. [00:35:15] Speaker 03: You're right on time. [00:35:16] Speaker 03: Any other questions from my colleagues? [00:35:19] Speaker 03: OK, we thank you. [00:35:22] Speaker 03: Mr. Waldrop, we'll restore you to three minutes. [00:35:45] Speaker 04: Just before you start, what about authenticating the validity of the user limitation? [00:35:51] Speaker 00: Yes, Your Honor. [00:35:52] Speaker 00: MV3 presented evidence infringement of all those elements yet trialed, Your Honor. [00:35:56] Speaker 00: And Roku highlighted in closing argument. [00:35:59] Speaker 04: Right. [00:35:59] Speaker 04: But I mean, if the jury found no infringement on that limitation, that covers it all, right? [00:36:08] Speaker 00: Yes, Your Honor. [00:36:09] Speaker 04: Your response to my alternative argument theory [00:36:12] Speaker 04: There were other grounds on which the jury could have found non infringement. [00:36:15] Speaker 04: You said well, then there's no Limitation that applies to all the patents or all the claims authenticating the validity user does yeah, but that was not the art Yes, your honor you're correct your honor, but that was not the issue that Where there was an o2 micro issue to speed over and I understand I understand I'm just just trying to get in my head that [00:36:36] Speaker 04: The O2 micro issue, the claim construction issue, the Dalbert issue, as I think this oral argument has proved, is very confusing as to what your argument is, what the other side's argument is, what was the judge's role in trying to make certain that there was clarity as to whether or not there could be a wireless connection. [00:36:54] Speaker 04: It seems to me like that's where it all boiled down. [00:36:57] Speaker 04: And all I was saying was being perhaps a little more simple-minded, it looked to me like there was no alternative around to support the verdict, which was that [00:37:05] Speaker 04: Your adversary argued to the jury that if you're authenticating the validity of the user limitation was not met. [00:37:12] Speaker 04: You argued to the contrary. [00:37:14] Speaker 04: The jury could have found against you and found in favor of Roku on that issue. [00:37:20] Speaker 04: And if they had done so, then the verdict would be sustainable, even if there had been error with regard to the docking station. [00:37:29] Speaker 00: Your Honor, we will never know that, Your Honor. [00:37:31] Speaker 04: You don't need to know that with a general verdict. [00:37:33] Speaker 04: Our job is to decide on the motion for the new trial whether the jury verdict was sustainable. [00:37:39] Speaker 02: What? [00:37:39] Speaker 04: And what I'm saying is that, and there's a body of law in the circuit as well as here that says just that. [00:37:45] Speaker 04: And that argument was made to the district court judge against your motion for a new trial, saying you don't have to worry about potential error on this complicated issue. [00:37:55] Speaker 04: because there's a ground here that the jury very well could have found infringement on and not infringement on and that takes care of the verdict. [00:38:02] Speaker 00: What we're seeking Your Honor is a less drastic measure than throwing out the jury verdict. [00:38:05] Speaker 00: Excuse me? [00:38:06] Speaker 00: We're seeking a less drastic measure than throwing out the jury verdict. [00:38:08] Speaker 00: We're seeking out a measure by which we have a fair trial in which... Well, you're asking for a new trial. [00:38:14] Speaker 00: Yes, your honor. [00:38:15] Speaker 04: But why do you need a new trial when the jury very well had before it evidence on which it can find non-infringement of the authenticating the validity user limitation? [00:38:26] Speaker 00: Because, your honor, we don't know if that was actually what they found out. [00:38:28] Speaker 04: You never know that in a black box verdict. [00:38:31] Speaker 04: That's the risk you take when you don't get specific verdicts. [00:38:36] Speaker 04: You don't ask for a specific verdict to say, well, is there infringement of this limitation? [00:38:43] Speaker 04: This limitation? [00:38:44] Speaker 04: This limitation? [00:38:45] Speaker 00: Your Honor, but we do know that there was confusion over just the docking port, and we do know that that was an issue that played out in front of the jury. [00:38:52] Speaker 00: We do know that there was a jury's conversion of that. [00:38:53] Speaker 03: If you know there's confusion, [00:38:55] Speaker 03: Why did you decide not to seek a supplemental construction on that particular issue, on the wireless for the docking port? [00:39:04] Speaker 00: Because the court has specifically rejected the interface, physical interface construction proposed by Roku. [00:39:10] Speaker 03: Well, then were you relying on the Dobert and the MIMO? [00:39:15] Speaker 00: No, Your Honor. [00:39:16] Speaker 00: We had a markup ruling where the court said, I'm uncomfortable with the physical interface. [00:39:20] Speaker 00: I'm not comfortable with Roku's construction of a physical interface. [00:39:23] Speaker 00: Rejected it. [00:39:24] Speaker 00: That's a markup. [00:39:25] Speaker 00: That should have been the end of it. [00:39:26] Speaker 00: But Roku continued and recast it as a physical connection, a physical interface, and made it exclusive, and read out claims 21 and 53, which require wireless communication. [00:39:38] Speaker 00: So essentially, they said, look, those claims don't matter, even though they're assertive. [00:39:42] Speaker 00: That is just error. [00:39:44] Speaker 00: OK. [00:39:45] Speaker 02: You didn't ask for specifically wired or wireless. [00:39:49] Speaker 00: We did. [00:39:49] Speaker 00: We did. [00:39:50] Speaker 00: With Dock and Port, we asked for plain and ordinary meaning. [00:39:52] Speaker 00: No, no, no. [00:39:52] Speaker 02: You can stop saying that. [00:39:53] Speaker 02: You asked for plain and ordinary meaning. [00:39:55] Speaker 02: You can't now go back and say, well, we were wrong. [00:39:58] Speaker 02: You should have adopted our alternative construction. [00:40:01] Speaker 02: After the confusion arose, you never said, look, there's confusion over wired or wireless. [00:40:06] Speaker 02: Give us a claim construction that includes wireless. [00:40:09] Speaker 02: Is there anything in the record that specifically says, in those words, [00:40:13] Speaker 02: I want a claim construction that includes wired and wireless. [00:40:17] Speaker 00: Yes, Your Honor. [00:40:19] Speaker 00: We presented evidence in our infringement case where our experts said that there was... No, no. [00:40:23] Speaker 02: I don't care about the evidence. [00:40:24] Speaker 02: Did you ever tell the district court, there's confusion, I want a claim construction that includes wired and wireless. [00:40:32] Speaker 02: Where in the transcript [00:40:34] Speaker 00: Even better than that. [00:40:35] Speaker 00: Even better than that. [00:40:36] Speaker 00: We said we wanted a construction that prevented road crew from... No, no, no, no. [00:40:40] Speaker 02: I don't think that's good enough. [00:40:42] Speaker 02: What I want is, did you say specifically to the district court, there's confusion, the construction should be wired or wireless? [00:40:49] Speaker 00: Yes, Your Honor. [00:40:50] Speaker 00: We said in the colloquy that the construction, we have claims 21 and 53, which allow for wireless communication. [00:40:57] Speaker 00: That is in the record. [00:40:58] Speaker 00: That is in the colloquy. [00:40:59] Speaker 00: We said they're reading out claims code. [00:41:01] Speaker 00: We said specifically that if you allow Roku to present this argument you will preclude claims 21 and 53 from being applied and those allow for wired and wireless communication That was specifically argued about at trial presented at trial. [00:41:19] Speaker 00: It was front-center [00:41:20] Speaker 00: And if this is allowed to stand, claim scope was precluded. [00:41:24] Speaker 00: They allow for the claims that were asserted to be abrogated, not included before the jury begins to only give the connection. [00:41:31] Speaker 03: I believe we have your argument. [00:41:34] Speaker 00: That is improper. [00:41:35] Speaker 00: Thank you, Your Honor.