[00:00:00] Speaker 00: The case for argument is 20-1793 Omega Patents versus Cal Amp Corporation. [00:00:06] Speaker 00: Mr. Trelo, whenever you're ready. [00:00:09] Speaker 01: Thank you, Your Honor, and may it please the Court. [00:00:12] Speaker 01: This is the second time this case has been before this Court. [00:00:16] Speaker 01: In the first appeal, the Court vacated and remanded for a new trial because, among other reasons, the infringement theory Omega and its expert pursued a trial which rested on treating signals sent by the accused LMUs [00:00:30] Speaker 01: as device codes required by the claims was inconsistent with the proper claim construction. [00:00:37] Speaker 01: Omega and the same expert pursued the same theory again at the second trial, making it clear that Omega cannot approve infringement under the proper claim construction. [00:00:46] Speaker 01: Therefore, the infringement judgment should be reversed. [00:00:49] Speaker 01: At a minimum, a new trial should be ordered. [00:00:52] Speaker 01: Now, the court, we think, shouldn't even need to read it. [00:00:56] Speaker 03: I don't think it's fair, Mr. Coller says, to say that they pursued the same [00:01:00] Speaker 03: plane construction theory, which in the original case said that a device code was attributable to something other than the ECU, where here the device code comes from the ECU and is being retransmitted by the ECU. [00:01:28] Speaker 01: Your Honor, I don't think that's correct. [00:01:31] Speaker 01: If we look at the infringement evidence with respect to the 278 patent, and that's a patent that has the limitation that requires that the controller and the vehicle device communicate using a corresponding vehicle device code from among a plurality thereof, under that, [00:01:58] Speaker 01: under the proper claim construction, the corresponding device code that's being used to communicate must come from a vehicle device. [00:02:06] Speaker 01: And that's not the theory that Omega pursued at trial. [00:02:10] Speaker 01: Omega put on its infringement. [00:02:12] Speaker 03: But it is true, is it not, that the ECU is a vehicle device? [00:02:17] Speaker 01: It is true. [00:02:19] Speaker 01: Yes, an ECU is a vehicle device, Your Honor. [00:02:22] Speaker 03: And it is also true that the LMU is transmitting [00:02:26] Speaker 03: an ECU code, right? [00:02:32] Speaker 01: The LMU is transmitting a signal on the vehicle bus. [00:02:39] Speaker 01: And with respect to the 278 patent. [00:02:44] Speaker 03: Wait, you're not answering my question. [00:02:45] Speaker 03: And that signal does include a code coming from the ECU, which is a vehicle device, right? [00:02:52] Speaker 01: No, no. [00:02:53] Speaker 01: And that's where I think the proof fails, Your Honor. [00:02:59] Speaker 01: When Omega's expert, McAlexander, was explaining his infringement theory at trial, on direct, he didn't identify anything that met the corresponding vehicle device code limitation. [00:03:11] Speaker 01: Then on cross, he was pressed to explain where that element could be found. [00:03:16] Speaker 01: And he testified, he said that the, and this is that appendix 23, 557 to 58, [00:03:22] Speaker 01: He said the LMU sends out a signal with a specific code. [00:03:27] Speaker 01: And then when asked whether he was referring to the queries to the bus sent by the LMU, he confirmed that that's exactly what he meant. [00:03:34] Speaker 01: A signal sent by the LMU is not a signal from a vehicle device. [00:03:39] Speaker 01: And that's what the claim construction requires that the corresponding vehicle device code be. [00:03:44] Speaker 03: OK, I understand that. [00:03:46] Speaker 03: And you may be right. [00:03:50] Speaker 03: that an improper theory was presented to the jury. [00:03:54] Speaker 03: But the fact is that the record shows, does it not, that the LMU transmits an ECU code that is in the record that could have formed the basis for the jury verdict? [00:04:10] Speaker 03: And if it did, that would be appropriate, no? [00:04:13] Speaker 01: No, I don't think so, Your Honor, because if [00:04:16] Speaker 01: No matter what the LMU is transmitting, it is not a device code under the claim construction. [00:04:24] Speaker 03: I don't think you're addressing my question. [00:04:27] Speaker 03: My question is, if the LMU transmits a vehicle device code, that is, a code coming from the EMU, that would seem to satisfy the claim limitation. [00:04:38] Speaker 03: And there was evidence in the record that that did occur, whether or not that evidence came from the Pat T. expert. [00:04:47] Speaker 01: Your Honor, I just don't think that there is evidence that the LMU transmits. [00:04:56] Speaker 01: There is some testimony that the LMU transmits what Omega's experts said were device codes, but it's clear that he was not using device code consistently with the claim construction. [00:05:09] Speaker 01: He was referring to information that was [00:05:13] Speaker 01: loaded onto the LMU as part of manufacturing. [00:05:16] Speaker 01: It was not a signal from a vehicle device. [00:05:19] Speaker 01: And so I don't think that there is any testimony or evidence that the LMU transmits signals that it received from a vehicle device. [00:05:29] Speaker 01: And therefore, whatever the LMU is transmitting, it is not a device code under the claim construction. [00:05:35] Speaker 01: And I think that's the fundamental failure of proof with respect to the 278 infringement theory. [00:05:43] Speaker 00: Mr. Trela, let me move you on just because there are a number of issues here. [00:05:48] Speaker 00: I really do want to get to the damages question, but I have one question before that on this direct indirect infringement verdict, and you're seeking us to vacate the direct infringement. [00:06:01] Speaker 00: I understand what the problem is. [00:06:04] Speaker 00: I just don't understand how that issue is before us and it's reviewable. [00:06:09] Speaker 00: I don't disagree that there would necessarily be any preclusive effect to the direct infringement, which was something that was not appealable. [00:06:18] Speaker 00: So I don't get how, if it's not appealable, we have the authority to review it and vacate it here. [00:06:25] Speaker 01: Well, Your Honor, I think maybe the [00:06:28] Speaker 01: The best way to explain it is to look at how this case really maps on to the Supreme Court decision in Camretta versus Green. [00:06:37] Speaker 01: In both cases, there was basically a two-part inquiry to determine whether the defendant was liable to the plaintiff. [00:06:44] Speaker 01: First, was there a violation or infringement of the plaintiff's rights? [00:06:48] Speaker 01: And second, was the defendant's actual or constructive knowledge sufficient to hold it liable for that underlying violation or infringement? [00:06:57] Speaker 01: And in that context, the Supreme Court said that even though the defendant had been found not liable by reason of qualified immunity since the right wasn't clearly established, that finding was still, the underlying finding of the violation was reviewable because it could affect the defendant's conduct going forward. [00:07:18] Speaker 03: Now in Camretta, the court- How can that be here when the patent expired in 2016? [00:07:26] Speaker 01: Well, Your Honor, that's exactly the point I was about to get to. [00:07:29] Speaker 01: In that sense, again, this case maps on to Camretta. [00:07:33] Speaker 01: In Camretta, the underlying issue had become moot. [00:07:38] Speaker 01: There was no case or controversy because, among other things, the plaintiff had become an adult. [00:07:45] Speaker 01: And so the issue of minors' rights, she no longer had any stake in that. [00:07:49] Speaker 01: And so there was no case or controversy. [00:07:51] Speaker 01: So the court vacated. [00:07:53] Speaker 01: Here, as you said, the patent expired, Omega hasn't appealed the no-inducement finding, but the underlying finding of direct infringement by customers could still have adverse consequences for Cal-Emp in the event of, for example, an indemnity claim by a customer sued for direct infringement by Omega. [00:08:15] Speaker 01: And therefore, we think the logic of Camretta says that this court can and should vacate that underlying direct infringement finding. [00:08:24] Speaker 00: Okay, let me move you on to damages. [00:08:26] Speaker 00: This case is confusing to me on a number of levels, one of which is. [00:08:32] Speaker 00: If we're talking about the comparable licenses, and your argument is one that I take seriously, about the lack of comparability of the licenses, why didn't you, I know this would have happened the first trial, you never sought to have those excluded, right, under Daubert, to say they weren't comparable. [00:08:52] Speaker 00: You chose instead, I understand procedurally, the other side, Daubert and your guy, and prevailed. [00:09:01] Speaker 01: Your Honor, [00:09:03] Speaker 01: Let me make two points. [00:09:05] Speaker 01: First, in fact, before the second trial, we did again try we tried to get the license license agreements excluded the court. [00:09:13] Speaker 01: The court denied that motion. [00:09:15] Speaker 01: He said, because we had not objected or moved to exclude them in the first trial, we couldn't move to exclude them in the second trial. [00:09:21] Speaker 00: I know you tried to get your rebuttal witness in, but I didn't recognize that in the second trial, you also tried to exclude them. [00:09:29] Speaker 01: We sought leave. [00:09:30] Speaker 01: Well, we had to seek leave to file a motion. [00:09:33] Speaker 01: And the court denied leave because since we hadn't done it at the first trial, he said we couldn't do it at the second. [00:09:39] Speaker 00: And you haven't appealed that, right? [00:09:42] Speaker 01: No, no, we haven't appealed that. [00:09:44] Speaker 01: But Your Honor, I would note that in this Court's opinion in the first case, I mean in the first appeal, the Court said that whether the license agreements are admitted into evidence is a separate question from whether they can support a damages judgment. [00:10:00] Speaker 01: And our point is, sure, they're in the evidence. [00:10:03] Speaker 01: We're not saying, we haven't argued on appeal that it was improper to admit them, but they don't support [00:10:09] Speaker 00: The damage is judgment because you are arguing on appeal, though, that I think that your witness should have been allowed to testify and rebuttal. [00:10:18] Speaker 01: We are, Your Honor. [00:10:19] Speaker 01: Yes, we are. [00:10:21] Speaker 00: OK. [00:10:22] Speaker 00: And let me just press that a little, because the way the argument is going in the briefs, there's a back and forth between just simply the failure to apportion, and then a back and forth with the comparable licenses, and whether they were comparable, and all of that stuff. [00:10:41] Speaker 00: Are those separate, or are they pretty much part of the same big picture? [00:10:47] Speaker 01: Well, I guess I would say that they are [00:10:51] Speaker 01: maybe separate parts of a big picture. [00:10:54] Speaker 01: And that is, I think certainly to put some meat on those bones, I think that it's possible that by explaining the differences between licenses and how the exemplar licenses might be comparable, you could in theory get to an apportionment explanation as well. [00:11:19] Speaker 01: But Omega didn't do either here. [00:11:21] Speaker 01: It made no attempt to show any incremental value for the 278 patent as used in the accused LMUs. [00:11:28] Speaker 01: And it didn't make any attempt to show how these licenses that it put in the record, which involved dozens of patents, US and foreign patents, products that do things way beyond what the LMUs can do, how any of those were comparable. [00:11:41] Speaker 01: It just basically said, Omega, we have a policy. [00:11:44] Speaker 02: Sorry, can I just interrupt? [00:11:46] Speaker 02: Chief, I know we're over. [00:11:48] Speaker 02: Can I ask just a couple of questions on this point? [00:11:51] Speaker 02: So, Mr. Trela, did you ever exclude the other side's expert witness under Daubert? [00:12:02] Speaker 01: I don't think we tried to exclude the other side's expert. [00:12:06] Speaker 02: Let me tell you what my problem is with your argument. [00:12:12] Speaker 02: And I also, I fully appreciate your argument about the comparability of these licenses and that they don't match up. [00:12:20] Speaker 02: But we also have the expert's testimony that the technology that this company licenses, whether they license it for five patents or 60 patents, they use a $5 fee for every single one. [00:12:33] Speaker 02: And if that testimony wasn't excluded and the jury was allowed to hear it and [00:12:39] Speaker 02: allowed his explanation of how those licenses work with regard to the hypothetical negotiation. [00:12:47] Speaker 02: Why isn't that sufficient evidence that the jury could infer, as a matter of fact, that they would have licensed only the 278 for $5? [00:12:56] Speaker 01: Well, Your Honor, because for two reasons, I think. [00:13:01] Speaker 01: One is because there [00:13:03] Speaker 01: But the fact that that's Omega's policy does not absolve it of what this court has said is basically a statutory directive. [00:13:10] Speaker 01: The damages have to be based on incremental value that the patented invention adds to the accused product. [00:13:16] Speaker 01: Second, this court in, and this is a case cited both by Omega and by Callamp, in Gaylord versus US, this court held that. [00:13:26] Speaker 02: Can I just interrupt you there? [00:13:27] Speaker 02: I understand that incremental value stuff, but I mean, this isn't a Fran case. [00:13:34] Speaker 02: you know, looking at what the damages would have been from this 278 patent, if they can show that, you know, this is the value of this patent, that they would have charged you $5, and that's an accepted fact, to license this technology to your client, why isn't that the value of the patent? [00:13:59] Speaker 02: Maybe I'm being simplistic, but outside the friend context, I don't understand why we absolutely need apportionment or anything if they could show that their policy was they're going to license this technology for $5. [00:14:16] Speaker 02: And if you had taken a license just for the 278 or for the whole portfolio, you would have paid $5. [00:14:23] Speaker 02: And I know that their expert doesn't say that exactly, [00:14:28] Speaker 02: you know, assume that that's a fair inference. [00:14:30] Speaker 02: Again, I'll just ask you one more time. [00:14:32] Speaker 02: And if you want to talk about apportionment and stuff, that's fine. [00:14:34] Speaker 02: I just don't understand why that's necessarily applicable here. [00:14:37] Speaker 02: If you can read their expert as saying the 278 would have been licensed at $5 to your client for this technology. [00:14:47] Speaker 01: Two responses, Your Honor. [00:14:49] Speaker 01: One is I think cases like Exmark, for example, which is discussed in the briefs, make clear that [00:14:55] Speaker 01: the idea of apportionment and incremental value, and that applies outside the Frant context. [00:15:01] Speaker 01: So that is a generally applicable principle. [00:15:04] Speaker 01: And second, as I started to allude to earlier, this court in Gaylord versus US has said both sides' positions have to be considered at the bargaining table. [00:15:16] Speaker 01: The plaintiff can't just rely on, well, it is my policy to charge $5. [00:15:21] Speaker 01: That is not sufficient to support [00:15:25] Speaker 01: to support a reasonable royalty determination. [00:15:28] Speaker 01: And that is all they had here. [00:15:30] Speaker 02: Well, except that you don't have anything on the other side because your expert got excluded and you didn't appeal that the first time around. [00:15:40] Speaker 01: Well, our expert was excluded. [00:15:41] Speaker 01: We didn't appeal it the first time around. [00:15:44] Speaker 01: We think we should have been entitled to present that expert in rebuttal this time around. [00:15:50] Speaker 01: We've explained that in our briefs. [00:15:51] Speaker 01: I know I'm way over time. [00:15:53] Speaker 01: But under 11th Circuit law, which would apply here, we should not have been precluded from presenting that expert at the retrial. [00:16:02] Speaker 03: Okay, but this is Judge Dyck. [00:16:04] Speaker 03: Let me, I'm trying to understand this also. [00:16:07] Speaker 03: It seems to me that the problem here is that every license they presented was for multiple patents. [00:16:15] Speaker 03: And under Erickson and other cases, the license fee under those licenses has to be apportioned [00:16:22] Speaker 03: among the various patents, particularly in a case like this one where the inventor himself said he didn't value one patent over another in that license situation. [00:16:37] Speaker 03: In other words, he's not saying that all the value of the license was attributable to the 278 patent. [00:16:47] Speaker 01: I completely agree, Your Honor. [00:16:50] Speaker 01: All of the licenses they put in involved dozens of patents. [00:16:55] Speaker 01: There was no basis to determine any sort of value specific to the 278, particularly in the context of a limited capability product like the LMU. [00:17:07] Speaker 01: And so that's why one of the reasons we think this damages judgment is deeply flawed. [00:17:16] Speaker 00: I know I'm way over time. [00:17:18] Speaker 00: I know, I know. [00:17:19] Speaker 00: I don't want to interrupt my colleagues. [00:17:20] Speaker 00: So if not hearing anything more from Judge Hughes and Judge Dyke, will we store some rebuttal time and let's hear from Ms. [00:17:27] Speaker 00: Woodward. [00:17:28] Speaker 00: Thank you, Your Honor. [00:17:29] Speaker 00: Thank you. [00:17:32] Speaker 04: Thank you, Your Honor, and may it please the court. [00:17:34] Speaker 04: Starting first with the 885 patent, I agree with the point that Your Honor made. [00:17:40] Speaker 03: This is Judge Dyke. [00:17:40] Speaker 03: Just following up on the last discussion that we're having. [00:17:45] Speaker 03: Why, under Erickson and other cases like that, don't you have to apportion the license fee under the patent license agreement as between the 278 patents and the multiple other patents that are covered by the agreement, something which you did not do in your damages evidence? [00:18:10] Speaker 04: So I think the answer to that is in one of the questions that Judge Hughes posed. [00:18:15] Speaker 04: In the Erickson case, the court actually noticed that the defendant does not challenge the methodology used by Erickson's damage expert. [00:18:24] Speaker 04: We need not consider the propriety of his apportionment analysis. [00:18:28] Speaker 04: The same is true here. [00:18:30] Speaker 04: Our damages expert was, for purposes of apportionment, had an opinion that each one patent individually [00:18:39] Speaker 04: under this entire licensing portfolio and licensing strategy, each one of those, so long as it included multi-vehicle data bus information, was worth $5. [00:18:52] Speaker 04: And that theory was not challenged via Daubert and thus that in and of itself. [00:19:02] Speaker 03: I don't see why there's an obligation [00:19:04] Speaker 03: to exclude the testimony under Daubert, you can still say it doesn't provide substantial evidence to support the jury verdict. [00:19:12] Speaker 03: And here, I don't see the jury witness other than saying that the patentee always wanted to get $5, did anything to support the notion of no apportionment here. [00:19:26] Speaker 04: So I believe that the apportionment is in the way that these licenses are taken. [00:19:31] Speaker 04: It's supported also not only by, [00:19:33] Speaker 04: like I said, the unchallenged theory and opinion of our expert, but it was also supported by Mr. Flick himself, who said that if, you know, when he went into this, there was originally a different structure of his licensing, where for the first feature it was $5, and then it would be 50 cents or 25 cents thereafter, eventually because of the difficulties in administrating a program like that that had a structured and additional add-on component [00:20:03] Speaker 04: He eventually went to this, OK, it's $5 for whatever patent you license. [00:20:08] Speaker 03: That's his licensing policy. [00:20:11] Speaker 03: You have here a hypothetical negotiation in which somebody can't just say, well, it's my policy to demand so and so. [00:20:19] Speaker 03: So that's the end of the matter. [00:20:22] Speaker 03: You have to support the apportionment among the very patents covered by the license, particularly when [00:20:31] Speaker 03: your own witness said that he can't say that the 278 has more value than the other patents covered by the license. [00:20:41] Speaker 03: I just don't get it. [00:20:43] Speaker 04: But what he said was you would be licensing in all of these licenses. [00:20:48] Speaker 04: The licenses are laid out so that if you are using any one claim from any one of these patents, [00:20:54] Speaker 04: That's what starts the $5. [00:20:56] Speaker 04: That's what Mr. Flick said as well. [00:20:59] Speaker 03: Let's see. [00:20:59] Speaker 03: But it doesn't suggest that that's an apportionment or something that's binding in a hypothetical negotiation. [00:21:08] Speaker 03: I mean, you took that position. [00:21:11] Speaker 03: Any patentee could say, well, my policy is not to give a license for anything more than X, and that would be the end of the matter. [00:21:19] Speaker 03: And that's not the end of the matter in these hypothetical negotiations, right? [00:21:23] Speaker 04: Well, it's one thing to say it, Your Honor, and that's the point that I think Mr. Cello was making with the Gaylord case, is that it's one thing to say it, but it's another thing to come into court with 18 licenses, all of which have been negotiated. [00:21:40] Speaker 04: Many of them were negotiated outside, you know, all of them were negotiated at arm's length. [00:21:45] Speaker 03: Every single one of those licenses has multiple patents, right? [00:21:50] Speaker 04: That's correct. [00:21:51] Speaker 03: Okay. [00:21:52] Speaker 04: But they also do distinguish between different types of technology. [00:21:56] Speaker 04: So as we saw, there was $5 for any that include the multi-vehicle functionality, which the 278 No Question does. [00:22:04] Speaker 04: Then there were separate agreements for $1 if it was simply data to track. [00:22:08] Speaker 04: And there were additional rates or different rates if it was simply GPS without multi-vehicle functionality. [00:22:15] Speaker 04: So we know that there is within that evidence of apportionment, that multi-vehicle functionality where you're getting data off the bus and can do so for multiple vehicles. [00:22:27] Speaker 04: All of this suggests that that technology is worth $5. [00:22:30] Speaker 04: And before we move on, I want to point out that this is also consistent with the evidence that was submitted by Cal Am's own witnesses about the value of their infringing LMUs. [00:22:44] Speaker 04: Eiberger testified, for example, that there would be no value without the downloading of scripts, which is one of the key parts of the 278 patent. [00:22:55] Speaker 04: Hergesheimer, I think that's how you say that, he also testified similarly. [00:23:02] Speaker 04: He talked about [00:23:03] Speaker 04: the importance of the multi-vehicle functionality to its customers, the difficulty in trying to design around that, and the value again of having multi-vehicle functionality in its LMUs. [00:23:19] Speaker 00: I get that. [00:23:20] Speaker 00: And I'm looking at your brief, red brief, page 35 and 36. [00:23:25] Speaker 00: And that's where you make an argument that the seals were driven primarily, if not exclusively, by the invention of the 278 patent. [00:23:34] Speaker 00: What gives me pause is a statement you have on page 35, which says, the jury heard the infringing LMUs have no component parts outside of what is found in the 278 patent. [00:23:48] Speaker 00: Well, the 278 patent covers the controller. [00:23:51] Speaker 00: And in that respect, I think Mr. Trela makes the point that it's very much like the Exmark case, which he raises well. [00:23:58] Speaker 00: You didn't invent everything up the controller, right? [00:24:03] Speaker 00: The patent is on a specific feature. [00:24:06] Speaker 00: So to say that LMUs have no component parts outside what is found in the 278 patent is quite misleading, isn't it? [00:24:18] Speaker 04: It certainly wasn't intended to be so. [00:24:22] Speaker 00: I think it is. [00:24:24] Speaker 00: that everything about the LMUs, there's nothing about them that isn't covered by the claims and covered by the invention of the 278, right? [00:24:35] Speaker 00: You don't mean that. [00:24:37] Speaker 04: I think what's meant there is that this is similar to Exmark in that if you look at the claims and the different limitations that are recited, you've got the position determining device, the wireless communication device, then the controller. [00:24:49] Speaker 04: The controller has to talk on the data bus, [00:24:52] Speaker 04: and you've got to be able to download. [00:24:53] Speaker 04: So it's all of those things, and that's exactly, that is the extent. [00:24:58] Speaker 00: But there are components in the 278 that are cited, but they're not the invention. [00:25:05] Speaker 00: Right. [00:25:05] Speaker 00: So I would say that that's correct, Your Honor. [00:25:07] Speaker 00: You still have to do apportionment. [00:25:09] Speaker 00: That doesn't cover, just because all of the components are found in the 278 patent doesn't mean that that eliminates the need for apportionment when it's not what the 278 invention is about. [00:25:24] Speaker 00: Do you understand my question? [00:25:26] Speaker 04: I do, Your Honor. [00:25:27] Speaker 04: And I think I'll go back to the testimony from Hirvish-Meimer that I just quoted. [00:25:32] Speaker 04: because I think that's the key, that Hergesheimer and Iberger, excuse me, because they really said this. [00:25:39] Speaker 04: They said the value of the LMU is in having multi-vehicle functionality so that you can read something off the data bus, but then also in having these downloadable scripts that make that multi-vehicle function work. [00:25:54] Speaker 04: Those are the two key components of the 278. [00:25:58] Speaker 04: And this testimony, which I think is really remarkable to have, that that's the value, says Cal Amp itself, that is the point of novelty. [00:26:07] Speaker 04: That is what the 278 patent is all about. [00:26:09] Speaker 04: So in that, I think that it is coextensive with the patent. [00:26:13] Speaker 00: Can I just take you to the process point regarding damages? [00:26:18] Speaker 00: And in our our opinion, our initial opinion, we said on remand, the parties are urged to achieve clarity by clearly presenting evidence, objections, arguments and jury instructions as to infringement, damages, blah, blah, blah, blah, blah. [00:26:35] Speaker 00: And my understanding and reading of the record is you all go back to the district court judge. [00:26:41] Speaker 00: And I think he said we don't really understand very well the way he [00:26:46] Speaker 00: He conducts his court, which is maybe fair. [00:26:50] Speaker 00: But do you think that he was correct in not allowing them to at least bring their expert in on rebuttal on the license agreements given the remand and this new trial on damages? [00:27:06] Speaker 04: Absolutely, Your Honor. [00:27:07] Speaker 04: This is classic. [00:27:09] Speaker 04: It's waiver on waiver. [00:27:11] Speaker 04: He ruled very clearly. [00:27:12] Speaker 04: They made the request after the first trial. [00:27:16] Speaker 04: and said, we need a new trial because you should have allowed us to do this. [00:27:20] Speaker 04: He then said, no, I find that that argument is waived. [00:27:25] Speaker 04: They then did not appeal that. [00:27:27] Speaker 04: That was just conceded by Mr. Trela. [00:27:29] Speaker 04: It's a very clear position, clear decision that he had made that should have been appealed if that was something that [00:27:39] Speaker 04: that Cal Amp wanted either this court to consider or in a remand for the jury ultimately to consider that in its determination. [00:27:49] Speaker 04: And that's at 17. [00:27:51] Speaker 03: It certainly was a waiver as far as the first trial was concerned. [00:27:56] Speaker 03: They couldn't challenge the first trial on that ground not having a field bill. [00:28:01] Speaker 03: Why does that ruling necessarily carry over when there has to be a new trial on damages? [00:28:07] Speaker 03: Why is that? [00:28:08] Speaker 03: Why at that point does the ruling necessarily carry over? [00:28:17] Speaker 04: Because they could have and did not appeal it. [00:28:21] Speaker 04: And so it becomes law of the case. [00:28:23] Speaker 04: At a minimum, they have to show that that decision on remand amounts to an abuse of discretion. [00:28:31] Speaker 04: But when they knew that this was an issue, they had it within their power to appeal it after the first decision that he made. [00:28:38] Speaker 04: I think it's completely within the judge's discretion to decide that he's not going to go back and reconsider that ruling. [00:28:46] Speaker 03: Could I ask you about the infringement issue and the device corresponding device code limitation? [00:28:57] Speaker 03: Certainly. [00:28:57] Speaker 03: Mr. Trela, I think correctly points out that your expert propounded an impermissible theory under our first decision in this case. [00:29:09] Speaker 03: But the question is whether there was evidence to support a permissible theory. [00:29:13] Speaker 03: Would you address that, please? [00:29:16] Speaker 04: I would. [00:29:17] Speaker 04: And what I would say is I think that the court, for both the 885, if the court does address it on the merits, and the 278. [00:29:24] Speaker 04: 278. [00:29:25] Speaker 03: OK. [00:29:27] Speaker 04: The court doesn't need to go any further than, again, Cowlamp's own admissions. [00:29:33] Speaker 04: These are from Mr. Chen. [00:29:35] Speaker 04: And you may recall that in the first appeal, Mr. Chen was the internal engineer whose testimony was excluded with respect to a good faith belief of non-infringement. [00:29:47] Speaker 04: So he was the witness that Callan had actually appealed to this court and said, no, we need to be able to present more from him as to what he believed about infringement. [00:29:56] Speaker 04: On pages 1952, he testifies three times [00:30:05] Speaker 04: that the LMU stores device codes within it, and then it reads device codes from the bus, and that these are from vehicle devices. [00:30:15] Speaker 04: In this dialogue, it actually, the questioning council actually wants to make clear, now you know that device codes are signals from a vehicle device, this is how it was construed by the court, he says, yes, okay, I understand. [00:30:31] Speaker 04: So on these pages, 19.522, 19.523, Calliam's witness on non-infringement himself testifies that yes, the LMU is going to be receiving from various device, vehicle devices, device codes. [00:30:49] Speaker 04: He then also says on page 19.527, and this is specific to the 257, he admits when it comes to dependent claim six, [00:31:00] Speaker 04: Now, you agree that one of the vehicle codes is for reading from at least one vehicle device within the LMU, and his answer is yes. [00:31:09] Speaker 04: So, exactly as Your Honor said, and I actually think that the testimony of our expert is not as it was portrayed by Mr. Chella, so if I could adjust that for an additional minute, I'd appreciate it. [00:31:21] Speaker 04: But Your Honor, Judge Dyke, you are exactly right that there is plenty of evidence, plenty of substantial evidence from this [00:31:28] Speaker 04: from the entirety of the record that there is a corresponding vehicle code that is related to the enabling data that's downloaded to satisfy infringement on the 278. [00:31:39] Speaker 03: Before we run out of time, let me ask you one other question on vacating the 885. [00:31:44] Speaker 03: If this doesn't have any consequences, why are you fighting it so hard? [00:31:49] Speaker 04: And obviously, I'm not going to suggest what this court should or should not do with regard to decisions on its own jurisdiction. [00:31:59] Speaker 04: I think our point is simply that the precedent from this court is that it should decline to review it. [00:32:05] Speaker 04: That's from personalized user model versus Google as well as the MIT court. [00:32:10] Speaker 03: But why are you fighting vacating it if it doesn't have any consequences? [00:32:17] Speaker 04: If, Your Honor, if that's what you choose to do, then I would not. [00:32:20] Speaker 04: We were just trying to point out that the precedent is that you declined to review it because Cal Amp does not itself have jurisdiction, which is different from all of the other cases that they have pointed to where there was jurisdiction originally and then something happened while it was on appeal to moot the decision. [00:32:37] Speaker 04: And this case is different from those. [00:32:40] Speaker 00: Ms. [00:32:41] Speaker 00: Willis, I know your time has expired and you haven't gotten to your cross appeal, but we can obviously rest on the briefs on that. [00:32:49] Speaker 00: But I do have one final clarification on the discussion we were having about 10 minutes ago about damages. [00:32:56] Speaker 00: And that's that you concluded by resting fairly heavily, at least, on Mr. Hergesheimer's testimony. [00:33:02] Speaker 00: Am I correct about that? [00:33:06] Speaker 04: He is one of the two witnesses. [00:33:10] Speaker 04: He was not the expert. [00:33:11] Speaker 04: He was one of Cal Amps two witnesses, Mr. Hergesheimer and Mr. Eiberger, who are identified. [00:33:17] Speaker 00: You're calling out particularly Mr. Hergesheimer. [00:33:20] Speaker 00: I don't want to put words in your mouth. [00:33:21] Speaker 00: I just thought that you thought that what he did, his testimony was quite significant. [00:33:27] Speaker 00: That's correct. [00:33:28] Speaker 00: Okay, I just wondered if you could give us the sites for that, because I do know you do cite some of his testimony at 31 and 32 in the brief, and I don't know if those are the sites you meant or if it's somewhere else in your brief. [00:33:42] Speaker 00: I just don't want to get confused when we take the case later. [00:33:50] Speaker 04: Could you give us the site? [00:33:51] Speaker 04: Sure. [00:33:51] Speaker 04: The deposition testimony that was cited starts at 19-620. [00:33:58] Speaker 04: and runs through 19.622. [00:34:02] Speaker 04: During those pages he says that the LMU development was for purposes of customer demand. [00:34:08] Speaker 04: He then says that they were not able to find alternative designs and he says that if it didn't work on multiple vehicles that it would be of limited value. [00:34:17] Speaker 04: The other testimony that I cited that was similar is from Iberger, which is at JA 14722, which again says that the LMU would be of, I think he actually says no value if you were unable to download scripts, which is the enabling data from the 278 patent. [00:34:37] Speaker 00: Okay. [00:34:38] Speaker 00: Thank you very much. [00:34:39] Speaker 00: Thank you. [00:34:41] Speaker 04: Yeah. [00:34:41] Speaker 04: Thank you, Your Honors. [00:34:43] Speaker 00: Mr. Trello, will we store three minutes of rebuttal? [00:34:46] Speaker 01: Thank you, Your Honor. [00:34:47] Speaker 01: very briefly. [00:34:50] Speaker 01: Picking up on that last point, I think if the court looks at the testimony of Heiberger and Hergesheimer, it does not support this notion that the entire value of the LMU is attributable to the 278 patent. [00:35:06] Speaker 01: And to the contrary, and we noted this in our brief, Omega had an infringement claim involving Calam's VPOD products, which provide [00:35:16] Speaker 01: a chunk of the same functionality as the LMU. [00:35:19] Speaker 01: And they said those infringed the 278 patent. [00:35:22] Speaker 01: The jury found that they don't. [00:35:23] Speaker 01: So we know that at least we have a finding, an unappealed finding, that a part of what the LMU does is not covered, is not the invention. [00:35:32] Speaker 01: It's not claimed by the 278 patent. [00:35:34] Speaker 01: And there's no evidence to apportion the unclaimed part from the claimed part. [00:35:40] Speaker 01: So I think that's a fundamental problem and that cited testimony doesn't fix it. [00:35:46] Speaker 01: Going back to the testimony that was cited from Mr. Chen, this is on the infringement point. [00:35:55] Speaker 01: Mr. Chen testified that yes, the LMU can read device code sent by a vehicle device, but there was no linking of that to the corresponding vehicle device code as used in the 278 patent. [00:36:08] Speaker 01: And we've got a situation here where the jury was told by their expert [00:36:13] Speaker 01: that the corresponding vehicle device code he was relying on was something different. [00:36:18] Speaker 01: So it's clear at a minimum that the jury could have relied on an improper basis in reaching its verdict. [00:36:24] Speaker 01: And under this court's decision and lit in other cases, that would call for at least a new trial. [00:36:31] Speaker 01: And finally, you know, I'm going back to damages. [00:36:35] Speaker 01: I'm sorry for jumping around. [00:36:37] Speaker 03: The problem with that is that you didn't object to his testimony, right? [00:36:42] Speaker 01: Oh, well, Your Honor, there was a lengthy exchange at trial on this question. [00:36:49] Speaker 01: And I'm fumbling around here. [00:36:51] Speaker 01: And it's at appendix pages 23657 through 23672, where we went back and forth with the court about the improper device code theory that was being presented. [00:37:05] Speaker 01: We renewed that in the [00:37:08] Speaker 01: a post-trial JMAW motion, which was filed basically a day after this exchange. [00:37:12] Speaker 01: And the court even acknowledged in its JMAW order at appendix page 25 that we had said that one of our bases was that Omega had misled the jury about the proper construction of device code. [00:37:25] Speaker 01: And so we definitely raised this with the district court. [00:37:28] Speaker 01: The district court considered it and basically rejected our position. [00:37:35] Speaker 01: If the court has no further questions, I will stand on the briefs on the remaining issues. [00:37:42] Speaker 00: Thank you. [00:37:44] Speaker 00: Thank both sides, and the case is submitted. [00:37:47] Speaker 01: Thank you, Your Honor.