[00:00:00] Speaker 03:
Our first case this morning is number 21-21-59, CapExport LLC versus Zinus Inc.

[00:00:07] Speaker 03:
Mr. Wolfe.

[00:00:15] Speaker 04:
Matthew Wolfe of Arnold & Porter for Appellant Zinus.

[00:00:20] Speaker 04:
May it please the court.

[00:00:22] Speaker 04:
This appeal turns on one question and one question only.

[00:00:25] Speaker 04:
Must a reasonable jury have concluded

[00:00:28] Speaker 04:
that the Merson bed had a footboard and longitudinal bar with the claimed connectors?

[00:00:33] Speaker 04:
The answer is plainly no.

[00:00:36] Speaker 04:
The only direct evidence as to the area in question, the two potentially claimed connectors, the only evidence of that was a photograph.

[00:00:47] Speaker 04:
And the only witnesses to testify as to what that photograph showed were brought by appellants in this case, Ms.

[00:00:54] Speaker 04:
Hunting and Mr. Lee.

[00:00:56] Speaker 04:
And each of them testified that that photograph most likely depicted a hole, not either of the two claimed connectors.

[00:01:05] Speaker 03:
OK, so let's assume for the moment that that were the case.

[00:01:09] Speaker 03:
Yes, Your Honor.

[00:01:10] Speaker 03:
Why doesn't that satisfy the connected claim limitation connected by putting the member into a hole?

[00:01:20] Speaker 03:
Your Honor, my recollection is that was an argument that was made in the district court.

[00:01:28] Speaker 04:
Your Honor, so first of all, if we look at from the longitudinal bar, there would literally be nothing there if it was just plugged into a hole.

[00:01:36] Speaker 04:
So there would be no connector or no equivalent to a connector.

[00:01:40] Speaker 04:
It would just be the bar with nothing on the end.

[00:01:43] Speaker 03:
And I think- It wouldn't fit into a hole.

[00:01:46] Speaker 04:
Yeah, but remember, they're specifically called out a second and a fourth connector.

[00:01:50] Speaker 04:
The second connector is at the end of the longitudinal bar.

[00:01:54] Speaker 04:
And if the witnesses are correct, there is literally nothing at the end of the longitudinal bar.

[00:02:01] Speaker 04:
Now, of course, they're free to make an equivalence argument in the context of an obviousness case.

[00:02:05] Speaker 03:
I'm not sure that I understand it.

[00:02:06] Speaker 03:
Why isn't putting the member into a hole achieving a connection?

[00:02:11] Speaker 03:
Wouldn't that achieve a connection?

[00:02:13] Speaker 04:
Your Honor, that may be achieving a connection, but that's not what the claim calls for.

[00:02:17] Speaker 04:
The claim calls for a second and a fourth

[00:02:19] Speaker 04:
connector, separate and apart, in addition to, on the one hand, the longitudinal bar, on the other hand, the headboard.

[00:02:26] Speaker 04:
So there's got to be additional structure for purposes of literal infringement on the one hand and anticipation on the other.

[00:02:33] Speaker 04:
And there's no structure whatsoever if the witnesses are credited.

[00:02:38] Speaker 03:
Where does it say there has to be additional structure?

[00:02:41] Speaker 04:
Your Honor, it is a footboard with a fourth connector

[00:02:45] Speaker 04:
wherein the first connector is adapted to the third connector, wherein the second connector is adapted to attach to the fourth connector.

[00:02:52] Speaker 04:
So there are specific connectors called out with regard to the footboard, and wherein the longitudinal bar and the footboard inside the compartment of the headboard, those are separate structures.

[00:03:02] Speaker 04:
So there's a footboard called out, there's a longitudinal bar called out, there's a connector at the end of the longitudinal bar called out, and there's a connector attached to the footboard called out.

[00:03:13] Speaker 04:
If you have a hole,

[00:03:15] Speaker 04:
That's not a connector, that's just a hole.

[00:03:17] Speaker 04:
And more clearly even than that is if all you have is a longitudinal bar, there is no connector.

[00:03:24] Speaker 04:
in this case, the fourth connector attached to the longitudinal bar.

[00:03:28] Speaker 04:
At least, Your Honor, that seems to be the plain reading of the claims.

[00:03:32] Speaker 01:
And this is the argument you made in the district court.

[00:03:34] Speaker 01:
This argument was not raised by the other side here, but it's the argument, and it wasn't ruled on by the district court.

[00:03:42] Speaker 04:
No, Your Honor, the district court relied exclusively on the fusion assembly instructions.

[00:03:47] Speaker 04:
And if the fusion assembly instructions applied to the Merson bed, if that accurately depicted

[00:03:53] Speaker 04:
the footboard and the longitudinal bar, then there would be anticipation as to those limitations.

[00:04:00] Speaker 04:
So based on the avenue the district court took to find anticipation, it never came up in its opinion.

[00:04:06] Speaker 03:
But the argument was raised.

[00:04:09] Speaker 04:
It was, Your Honor.

[00:04:10] Speaker 04:
At some point, I was not trial counsel, but obviously I have the record in front of me.

[00:04:15] Speaker 04:
It was raised, but it was not the basis of any decision that I'm aware of.

[00:04:19] Speaker 04:
It was not decided.

[00:04:20] Speaker 04:
The alternative theory that if

[00:04:23] Speaker 04:
Actually, I don't think it was phrased in these terms, that if it was simply a bar put into a hole, that that would satisfy the claim for 102 purposes.

[00:04:32] Speaker 04:
Certainly made for 103 purposes, but that's, of course, not what we're talking about here.

[00:04:37] Speaker 04:
And I want to focus on the witnesses for a second.

[00:04:41] Speaker 04:
Miss Hunting and Mr. Lee said, after years of experience, I look at this picture, the picture at 8434, and I see a hole.

[00:04:52] Speaker 04:
I don't see a connector on either side.

[00:04:56] Speaker 04:
Now, under ordinary circumstances, you would have expected appellees to come to put forward their evidence and say, no, we see a connector here.

[00:05:04] Speaker 04:
We see a connector there.

[00:05:05] Speaker 04:
Look at this shadow.

[00:05:06] Speaker 04:
Look at this indentation.

[00:05:08] Speaker 04:
Look at this bulge.

[00:05:09] Speaker 04:
And that would show a connector.

[00:05:11] Speaker 03:
I'm not sure that the witnesses' testimony about how to interpret a photograph

[00:05:17] Speaker 03:
is particularly relevant.

[00:05:20] Speaker 03:
I mean the question is, if they were to swear a jury trial, the jury would just interpret the photograph itself.

[00:05:26] Speaker 04:
Your Honor, respectfully, I am not one.

[00:05:31] Speaker 04:
I'm talking about me personally.

[00:05:32] Speaker 04:
I can't tell a hole in a bed from a hole in the wall.

[00:05:35] Speaker 03:
So what's the expertise of these witnesses to interpret photographs?

[00:05:41] Speaker 04:
Well, for example, Ms.

[00:05:42] Speaker 04:
Hunting testified that if the Merson bed had the hooks,

[00:05:48] Speaker 04:
So it was a shape, it was kind of an omega-shaped connector depicted in the fusion instructions.

[00:05:57] Speaker 04:
If there was such a structure in the Mersenne Bed, you would have expected to see the fabric bulge out, which makes sense if you put metal underneath fabric and

[00:06:07] Speaker 04:
nail it down, you'd expect to see some evidence from the fabric that there's metal either underneath it or on top of it.

[00:06:13] Speaker 04:
Now, you may say that's obvious, that we can all look at that and see it.

[00:06:16] Speaker 04:
Well, if that's true, I look at it and I don't see any bulge to the east or west, left or right.

[00:06:23] Speaker 04:
But I'm not one that's been in the industry for 15 years.

[00:06:27] Speaker 04:
But the point I'm trying to raise, Your Honor, is we have two witnesses that come forward and say what I think is apparent from the photo.

[00:06:33] Speaker 04:
But again, I'm not an expert.

[00:06:35] Speaker 04:
I'm not a witness.

[00:06:36] Speaker 04:
We don't see any evidence of connectors.

[00:06:38] Speaker 04:
We see evidence of a hole.

[00:06:41] Speaker 01:
In order for you to say that the district court jumped the gun on saying no triable issue, do you really need those witnesses as opposed to saying if all we have is the photograph, you just can't tell?

[00:06:56] Speaker 04:
100% right, Your Honor.

[00:06:57] Speaker 04:
We do not need to make that.

[00:06:59] Speaker 04:
I'm just pointing out the interesting.

[00:07:01] Speaker 04:
And these are kind of inferences I would draw if I were in front of a jury.

[00:07:04] Speaker 04:
If I were at closing argument and we put witnesses on the stand and said, no, there was a hole, and they didn't put any witness saying it was a connector, not a hole, I'd say, ladies and gentlemen, you can infer that they don't have anybody that can say there's a hole.

[00:07:17] Speaker 04:
But to your point, the more fundamental issue is the district court found the limitations at issue based on the fusion instructions.

[00:07:27] Speaker 04:
There is no witness, there is no evidence that the fusion instructions, at least in relevant part, or at all frankly, apply to the Merson bet.

[00:07:38] Speaker 05:
Isn't there some evidence in the form of testimony from someone who said that the, I guess they talked about the relevant code being PC-001C, that code meaning that it was a bed in a box.

[00:07:56] Speaker 05:
And now the instructions don't say bed in the box, but there's something that suggests maybe the

[00:08:02] Speaker 05:
Fusion is a bed in a box.

[00:08:05] Speaker 05:
There's some circumstantial evidence.

[00:08:07] Speaker 04:
An important question, Your Honor.

[00:08:09] Speaker 05:
Is this Ms.

[00:08:10] Speaker 04:
Lee's testimony?

[00:08:12] Speaker 04:
Ms.

[00:08:12] Speaker 04:
Tan.

[00:08:13] Speaker 04:
Ms.

[00:08:13] Speaker 04:
Tan.

[00:08:13] Speaker 04:
An important issue, Your Honor.

[00:08:15] Speaker 04:
So Ms.

[00:08:15] Speaker 04:
Tan sat in Singapore for deposition for appellants.

[00:08:19] Speaker 04:
Appellees weren't there.

[00:08:21] Speaker 04:
That was the decision they made.

[00:08:22] Speaker 04:
Appellees trial counsel.

[00:08:24] Speaker 04:
So they had her alone.

[00:08:25] Speaker 01:
Appellants could have been there.

[00:08:26] Speaker 04:
They could have been there.

[00:08:27] Speaker 04:
I'm not suggesting there was anything wrong.

[00:08:28] Speaker 04:
I'm just saying there was nothing obstructing the appellant from asking the questions I'm about to pose that they could have asked.

[00:08:34] Speaker 01:
You said something in your brief about how appellee's counsel had to be in the United States when this was taking place in Singapore, suggesting that maybe it was a little bit pulling a fast one.

[00:08:42] Speaker 04:
It was sharp practice, but not an appealable issue, Your Honor.

[00:08:46] Speaker 04:
I'm not suggesting that should determine your decision making.

[00:08:49] Speaker 04:
It was frustrating, but it was not something that litigators haven't seen before.

[00:08:54] Speaker 04:
Ms.

[00:08:55] Speaker 04:
Tan was there.

[00:08:57] Speaker 04:
They never asked her about the fusion at all.

[00:09:01] Speaker 04:
If you search her deposition transcript, you will not find the word fusion.

[00:09:07] Speaker 01:
So she- I guess that the sense I had was that she came pretty close to saying that all of the bed frames made by Woody carrying the PC-100 number

[00:09:26] Speaker 01:
were structurally the same, differed only with respect to the cloth, with respect to the fabric.

[00:09:34] Speaker 01:
I don't think she quite said it, but there's a sense that she, one could read this and say she's assuming that without quite saying that, and without mentioning the word fusion.

[00:09:46] Speaker 01:
That's some evidence, right, that

[00:09:50] Speaker 01:
It doesn't matter whether it was fusion instructions or Merson instructions.

[00:09:56] Speaker 01:
It's the same structure as relevant to the claims.

[00:09:59] Speaker 04:
Your Honor, if I were repellent at trial, I would try to string those suppositions together to make the argument you're making.

[00:10:07] Speaker 04:
But she never mentions the fusion.

[00:10:10] Speaker 04:
She never suggests that the Fusion had the PC001 code.

[00:10:15] Speaker 01:
She also never says, and this is an important point where that chain is just like... Is that otherwise established or denied in the evidence?

[00:10:22] Speaker 01:
No.

[00:10:22] Speaker 04:
Okay.

[00:10:24] Speaker 04:
No.

[00:10:24] Speaker 04:
But the most important piece of the chain is that even if they did share the same code, that they shared all features.

[00:10:32] Speaker 01:
Well, not all features.

[00:10:33] Speaker 01:
All relevant features.

[00:10:33] Speaker 01:
All relevant features.

[00:10:35] Speaker 01:
All relevant features.

[00:10:36] Speaker 01:
One of them has a C at the end and that one probably is, I don't know,

[00:10:39] Speaker 04:
Fair enough.

[00:10:40] Speaker 04:
I wasn't trying to overstate this.

[00:10:43] Speaker 04:
The point, though, is that even if you prove that PC001 was a fusion, that meant anything as to the connecting structure, the part we're talking about.

[00:10:54] Speaker 04:
It would not be uncommon.

[00:10:55] Speaker 04:
In fact, I think it would be the norm for a product code to have multiple products within it with different features.

[00:11:03] Speaker 04:
And in fact, Your Honor, it's interesting.

[00:11:05] Speaker 04:
One of the fights below that shouldn't have been resolved in summary judgment, and it wasn't directly reflected in the court's decision, was the language, the Chinese language, under the picture.

[00:11:16] Speaker 04:
And this is at 97-44 is the fight, and the picture itself is at 84-34.

[00:11:23] Speaker 04:
And Woody's itself said, and this is what appellees suggest the language should be translated to, strengthen the connection between the vertical rod and the foot of the bed.

[00:11:34] Speaker 04:
That is completely consistent with Appelli's theory that it was just a hole, unlike other connections, for example, at the corner of the bed, which were the hook and latch, that Woody itself recognized.

[00:11:47] Speaker 05:
I mean, maybe strengthen the connection means hit that, make sure that you get the two connectors connected properly.

[00:11:54] Speaker 05:
It's shown on the instructions.

[00:11:56] Speaker 05:
I think it's elements, what, two and four.

[00:11:59] Speaker 04:
From the fusion?

[00:12:00] Speaker 05:
Yes, from the fusion.

[00:12:03] Speaker 05:
I'm not sure.

[00:12:04] Speaker 04:
My argument is that there was clearly, assuming you believe the translation that Appellee's brought forward, and it was straight from Google, so it seems like at least it's plausible, that Woody itself, the seller of the bet itself, was saying there's something wrong with the connection at the footboard.

[00:12:23] Speaker 04:
There's something wrong with what's happening here.

[00:12:25] Speaker 04:
They didn't comment about it at the head board.

[00:12:27] Speaker 04:
They didn't comment about it anywhere else.

[00:12:29] Speaker 04:
They just said it there.

[00:12:30] Speaker 04:
So again, we get back to this notion that we're at summary judgment.

[00:12:33] Speaker 04:
We're not here trying to overturn a jury verdict.

[00:12:35] Speaker 03:
OK, but the thing that seems to me quite odd is that your client has witnesses who could have testified what the

[00:12:45] Speaker 03:
structure of the Merson bed was.

[00:12:48] Speaker 03:
And you didn't bring in any witness to say, no, the Merson bed doesn't have these connectors shown in the assembly instructions for the fusion bed.

[00:13:04] Speaker 03:
My understanding, Your Honor, was that any witness... Sorry, Your Honor, I didn't mean to cut you off.

[00:13:08] Speaker 03:
What you offer instead is speculation, speculative testimony, that that's not the kind of connection that existed.

[00:13:18] Speaker 03:
You must have had witnesses who could have testified as to what the structure of the Merson Pet was, but you didn't bring in any of those people

[00:13:26] Speaker 03:
and with declarations to support your opposition to summary judgment.

[00:13:31] Speaker 04:
Respectfully, Your Honor, we did.

[00:13:32] Speaker 04:
We brought forward Miss Hunting, who looked at a photograph from the inspection court.

[00:13:35] Speaker 03:
No, no, but she didn't testify that she's familiar with the Merson bed, and this is not the way the Merson bed is constructed.

[00:13:41] Speaker 04:
I mean, you would have to assume that there was a witness that was focusing on the connection at the footboard from 10 years ago.

[00:13:48] Speaker 04:
The witness that you had with

[00:13:52] Speaker 03:
Maybe she's one of them.

[00:13:53] Speaker 03:
But you had witnesses who could have come in and testified that the structure of the Merson bed is not reflected in the fusion bed instructions.

[00:14:03] Speaker 04:
Your Honor, we could have.

[00:14:04] Speaker 04:
But on the other hand, this is summary judgment.

[00:14:07] Speaker 04:
And there's not a single witness, not one witness from appellant, that came forward and said, the Merson bed has this structure.

[00:14:15] Speaker 04:
They had Ms.

[00:14:16] Speaker 04:
Tan on the stand.

[00:14:18] Speaker 04:
And she didn't testify that it had this structure.

[00:14:21] Speaker 04:
They had Ms.

[00:14:22] Speaker 04:
Tan at deposition, and they could have asked her a simple question.

[00:14:25] Speaker 04:
Does this part of the fusion instructions, does that apply to the Mersenne bed as well?

[00:14:29] Speaker 04:
They didn't ask her that question.

[00:14:32] Speaker 04:
They didn't ask her that question.

[00:14:34] Speaker 04:
Why didn't they submit a single declaration saying, we looked at this, we know about this, we have this?

[00:14:42] Speaker 04:
And they're in the industry.

[00:14:44] Speaker 04:
They're over in China as well.

[00:14:45] Speaker 04:
We talked about the presence in China in the trade shows.

[00:14:48] Speaker 04:
They could have done exactly what Your Honor said.

[00:14:50] Speaker 04:
At least we had the witnesses talk about the picture.

[00:14:52] Speaker 04:
They didn't do any of that.

[00:14:54] Speaker 03:
OK.

[00:14:54] Speaker 03:
I think we're about out of time.

[00:14:56] Speaker 03:
We'll give you two minutes.

[00:14:58] Speaker 03:
Thank you, Your Honor.

[00:15:03] Speaker 03:
Mr. Beichman?

[00:15:08] Speaker 02:
Good morning, Your Honors, and may it please the court.

[00:15:10] Speaker 02:
My name is David Beichman, and I represent the appellees, along with my co-counselman, Lord Kashishian.

[00:15:16] Speaker 02:
Excuse me.

[00:15:18] Speaker 02:
I've listened to this argument very carefully.

[00:15:21] Speaker 02:
And in fact, it's because this argument forms the backbone of the entire case position.

[00:15:28] Speaker 02:
What I believe it was Justice Stowe correctly pointed out was the Agnes Tan testimony.

[00:15:33] Speaker 02:
This testimony is remarkably clear on the issue that there is only one bed in a box.

[00:15:40] Speaker 02:
The names that we've been talking about here, I respectfully submit our arguments.

[00:15:43] Speaker 01:
Suppose I thought it was actually not remarkably clear.

[00:15:47] Speaker 01:
Sure.

[00:15:49] Speaker 01:
I mean, you could read it as assuming that, but never directly saying it and also never specifically referencing fusion, but never quite saying every PC, is it PC 100 or PC 001?

[00:16:04] Speaker 01:
PC 001.

[00:16:05] Speaker 01:
PC 001.

[00:16:08] Speaker 01:
Bed made, bed frame made by Woody's has the same footboard connector.

[00:16:13] Speaker 02:
Right.

[00:16:14] Speaker 02:
And so I can address that.

[00:16:15] Speaker 02:
Thank you, Your Honor.

[00:16:16] Speaker 02:
It's a good question.

[00:16:17] Speaker 02:
And the reason why it's a good question is because the names Fusion, the names Merson, and any of these other names are not going to be applied to the product by the factory.

[00:16:27] Speaker 02:
So when we deposed, and I went to Singapore and we'll talk about that in a bit, when I deposed her,

[00:16:33] Speaker 02:
The name Fusion didn't mean anything to her.

[00:16:36] Speaker 02:
We talked about these things independent of the deposition.

[00:16:39] Speaker 02:
And she said, we've made, and this is what's on the record, as I think Your Honor pointed out, that all of the bed identifiers were PC-001.

[00:16:48] Speaker 02:
They're simply a bed in a box.

[00:16:49] Speaker 02:
It says that on the carton, one piece, one carton.

[00:16:52] Speaker 02:
It says that on the PU instructions, bed in a box.

[00:16:56] Speaker 02:
And what Ms.

[00:16:56] Speaker 02:
Tan testified to is that since early as 2010,

[00:17:01] Speaker 02:
They had been, they being Woody manufacturing, had sold this same PC-001 bed in a box to folks in the United Kingdom.

[00:17:10] Speaker 02:
It was the same bed in the box that one customer who had ordered it called it Fusion.

[00:17:14] Speaker 02:
It was the same bed in the box.

[00:17:16] Speaker 03:
Well, the instructions themselves called it Fusion, right?

[00:17:19] Speaker 02:
That's correct, Your Honor.

[00:17:20] Speaker 02:
And the reason why the instructions call it Fusion is because

[00:17:23] Speaker 02:
There was testimony that the folks over in quality control, when they were shipping that order, there was an email from Peng DeFranco between, I believe it's a Huey Ping at the factory.

[00:17:34] Speaker 02:
Huey Pink said, we had to open one of the other Fusion beds to get an instruction manual to put in this headboard to ship to you, because they wanted to see the instructions.

[00:17:44] Speaker 05:
The problem I'm having is that you don't have any testimony at all that says the Mersin bed is the Fusion bed, or that they're all the same.

[00:17:51] Speaker 05:
You don't even have testimonies saying that that code, the bed in the box, the PC-001 code, that that applies to Fusion.

[00:18:02] Speaker 05:
So I feel like you're reading a lot into her testimony, which I have read.

[00:18:07] Speaker 05:
So where is this testimony that says, tell me specifically, where is the testimony that says that the Mercer and the Fusion are the same, or even that Fusion is a bed in a box?

[00:18:16] Speaker 02:
Sure.

[00:18:17] Speaker 02:
I believe that the reason we can say that without deeply reading into it, but simply looking at what Ms.

[00:18:23] Speaker 02:
Tan has testified to, is the fact that all of the beds in that factory are identified as a bed in a box.

[00:18:30] Speaker 02:
They are not identified.

[00:18:33] Speaker 02:
I believe that she did testify that all of the bed and the box were referred to bed and the box, and they're so identified on the carton.

[00:18:45] Speaker 02:
For example, if you look at the carton on the Merson box, there's a photograph of it on the record as well.

[00:18:50] Speaker 05:
What about fusion?

[00:18:51] Speaker 05:
Again, you're suggesting that the fusion instructions

[00:18:55] Speaker 05:
You know per se belong to the Merson bed and that the fusion and the Merson are one and the same.

[00:19:01] Speaker 00:
Correct.

[00:19:01] Speaker 05:
That's what you're suggesting.

[00:19:02] Speaker 05:
But where is the testimony or any evidence to prove that not bearing in mind that we're on summary judgment and inferences are supposed to be made in favor of the nine movement?

[00:19:13] Speaker 02:
Right and I spent a lot of time thinking about the inference issue because what's clear here is the inferences there were no negative inferences made.

[00:19:20] Speaker 02:
The bed that's at issue here the Merson bed was purchased by

[00:19:25] Speaker 02:
Mr. Lowry, the then patent expert and CEO.

[00:19:29] Speaker 02:
And that bed that he purchased had those fusion instructions in there.

[00:19:33] Speaker 02:
They didn't just miraculously appear.

[00:19:35] Speaker 05:
So there is contrary evidence from opposing counsel's side that says there was a witness who said, oftentimes, the wrong instructions are put in the box.

[00:19:46] Speaker 05:
So there's an inference there.

[00:19:47] Speaker 05:
There's something undermining your suggestion.

[00:19:50] Speaker 05:
that just because the fusion instructions were in the mercy box, they per se means the fusion bed and the mercy bed are the same.

[00:19:57] Speaker 02:
What defeats the testimony that sometimes, which is speculative and conjecture, there's no fact, is the email I referenced where Mr. Ping says, from the factory where the bed is originated, packed, and shipped from, he says in an email to Peng DeFranco, who's with Jusama and Colin Lowry, he says, we've removed

[00:20:16] Speaker 02:
an instruction manual from one of our other existing beds, which is the instruction manual that says Fusion PU, bed in a box, and they've inserted it into the Merson bed box.

[00:20:26] Speaker 03:
Where is this email in the record?

[00:20:29] Speaker 02:
I apologize.

[00:20:30] Speaker 02:
I'm going to confer with my co-counsel.

[00:20:36] Speaker 03:
If you're going to make references in oral arguments, you ought to know where it is in the appendix.

[00:20:40] Speaker 02:
I understand.

[00:20:41] Speaker 02:
I apologize, Your Honor.

[00:20:46] Speaker 01:
That's ECF number 268.

[00:20:48] Speaker 01:
That's ECF stand out.

[00:20:51] Speaker 01:
JA's help.

[00:20:55] Speaker 02:
Appendix 9950.

[00:20:59] Speaker 01:
Thank you.

[00:21:00] Speaker 02:
I'm just for that.

[00:21:01] Speaker 01:
This is embedded in some legal memorandum?

[00:21:08] Speaker 02:
That's correct.

[00:21:09] Speaker 02:
Okay.

[00:21:09] Speaker 02:
The email is in the email.

[00:21:18] Speaker 01:
Is this the relevant shipment?

[00:21:20] Speaker 01:
I thought the relevant shipment was in 2012.

[00:21:23] Speaker 01:
This email has a September 2011 date.

[00:21:28] Speaker 02:
September 10, 2011 with the subject, one piece packed bed assembly instruction manual.

[00:21:34] Speaker 01:
Right, but that shipment, whatever that shipment was, was not the one the district court relied on, was it?

[00:21:39] Speaker 02:
No, that was the one again where they're using the same, it's the only instruction manual they had.

[00:21:46] Speaker 03:
no no but the question is is this email relating to the shipment that we're talking about or to some other ship this email is clearly

[00:22:00] Speaker 02:
to the shipment from on or around that date, which would be 2011.

[00:22:05] Speaker 02:
And King says, excuse me, thanks if you're willing.

[00:22:08] Speaker 03:
The shipment we're talking about is 2012.

[00:22:11] Speaker 02:
Yes, Your Honor.

[00:22:12] Speaker 03:
So it's not the same shipment.

[00:22:14] Speaker 02:
No, but what we're talking about in answering Justice Stoll's question was whether... Judge Stoll.

[00:22:19] Speaker 02:
Judge Stoll, I apologize, was whether or not there was

[00:22:22] Speaker 02:
any evidence showing that this instruction manual goes from one bed to another.

[00:22:28] Speaker 03:
And it says... You're saying in another instance they retrieved the instruction manual from another bed and used it.

[00:22:35] Speaker 03:
Because it doesn't show that that happened in the individual shipment we're talking about.

[00:22:40] Speaker 05:
And also it doesn't say it's a Mersenne bed or that the instruction is a fusion instruction.

[00:22:46] Speaker 02:
Again, that's because the factory just makes one bed in a box, and that's all they've ever made is one bed in a box.

[00:22:51] Speaker 05:
And on this email... I believe that was... Ms.

[00:22:59] Speaker 02:
Tan testified in her deposition that, in fact, it was calling...

[00:23:05] Speaker 02:
It was Colin Lowry, I'll have the site for you, I apologize.

[00:23:08] Speaker 02:
It was Colin Lowry who, in fact, came up with the name Merson Bed.

[00:23:13] Speaker 02:
And it was always the customers who purchased the beds that identified what the name was, whereas at the factory as Ms.

[00:23:20] Speaker 02:
Tan testified.

[00:23:22] Speaker 03:
There's testimony in the record to that effect?

[00:23:24] Speaker 02:
Yes, there is.

[00:23:25] Speaker 02:
Where?

[00:23:26] Speaker 01:
8447, perhaps.

[00:23:34] Speaker 00:
Was it in there?

[00:23:34] Speaker 01:
I'm looking at the tan deposition at 8447.

[00:23:37] Speaker 01:
I'm not sure if that's what you're referring to.

[00:23:45] Speaker 02:
So on page appendix 8447, so this bed in a box, do you understand what the name Merson full bed is?

[00:23:54] Speaker 02:
And the answer is, Merson is a product of the Jusama, the item.

[00:23:59] Speaker 02:
They call it this name.

[00:24:01] Speaker 02:
OK, so, and she says, because, and I say, I'm sorry, so Merson is Jusama's name for the product?

[00:24:07] Speaker 02:
Yes.

[00:24:08] Speaker 02:
And then the PC001, whose name is that?

[00:24:11] Speaker 02:
That is the factory code.

[00:24:14] Speaker 01:
And then we talk about the factory mode for that particular model in bed.

[00:24:19] Speaker 01:
Yes.

[00:24:20] Speaker 01:
So now we're back into uncertainty about whether there's more than one particular model with respect to the claim requirement that we're talking about, which is the footboard connection.

[00:24:34] Speaker 02:
What she says further is that just stands for, and I'm looking on page 19, that just stands for the style, the pattern, and the design.

[00:24:43] Speaker 02:
Just to differentiate for the customers, some people might like three-stitching, but they're all the same constructions.

[00:24:50] Speaker 02:
like this bed in the boxes, but only different on the stitching on the headboard.

[00:24:55] Speaker 01:
So I think that answer goes to both of the questions, pending, where she completely testifies without saying that PC-001 is the factory code for the fusion.

[00:25:08] Speaker 01:
I believe where she's saying that there is only one structural, only one structure of all of the woody PC 001 beds.

[00:25:19] Speaker 02:
She says that, in fact, she does at line 12 at any time.

[00:25:25] Speaker 02:
Which page?

[00:25:27] Speaker 02:
I'm on page 19, and she says at line 8, but they are all the same constructions like the bed and the box, only different on stitching.

[00:25:36] Speaker 02:
And before that, she says on page 18, yes, I'd ask PC0011, she says that's the factory code.

[00:25:45] Speaker 02:
So within two pages of her deposition testimony, she's confirming that all of the bed and the box products, of which there are one,

[00:25:53] Speaker 02:
are identified by PC 001.

[00:25:55] Speaker 05:
Is there any testimony that the Fusion is a bed in the box?

[00:25:59] Speaker 02:
The Fusion instruction manual itself says Fusion PU bed in the box on the actual document.

[00:26:08] Speaker 02:
And they say, I believe the Fusion may even say bed in the box on the carton if we look at the photographs, but the carton certainly says one carton hyphen one box.

[00:26:18] Speaker 02:
But it does say it's specifically on

[00:26:22] Speaker 02:
on diffusion instructions that were used by the district court both in the blurry version and in the 2011 clear copy version to examine the connections in the footboard and headboard connectors.

[00:26:40] Speaker 01:
Mr. Wolf made some reference to an issue concerning translation of the Chinese caption.

[00:26:48] Speaker 01:
Can you address that?

[00:26:49] Speaker 01:
So I wasn't quite sure whether he was saying there's something there that supports his view or just that it's neutral.

[00:26:56] Speaker 02:
It's neutral in their view.

[00:26:59] Speaker 02:
In our view, it says something about strengthen the connection here.

[00:27:02] Speaker 02:
Because remember, this is a quality control report.

[00:27:05] Speaker 02:
And so after the bed's put together and they're jumping on the bed, sitting on the bed, and doing all of those things, they had said strengthen with an arrow, strengthen the connector.

[00:27:14] Speaker 01:
And that infers that there is a connector and the connector consistent I thought maybe I was hearing mr. Wolf say that there's some indication that there's a problem that needs to be solved we better strengthen the connector and I would you know to me if that fits with the notion that it's in a hole which is Strikes me is highly implausible The central beam of a bed with a fairly narrow footboard

[00:27:41] Speaker 02:
Right and I think it's implausible more so because why would you have different connectors on opposite ends of the bed but one instruction that says insert head and foot the same but in turning to the specific issue of the language

[00:27:54] Speaker 02:
Arguably, strengthening a connector could refer to a number of things.

[00:27:58] Speaker 05:
Does it say strengthen a connector, or does it say strengthen the connection?

[00:28:01] Speaker 02:
Connection.

[00:28:02] Speaker 02:
Strengthen the connection.

[00:28:03] Speaker 02:
I apologize.

[00:28:05] Speaker 02:
I apologize.

[00:28:05] Speaker 02:
When the language, if interpreted correctly, says strengthen the connection, that could mean a host of things.

[00:28:12] Speaker 02:
Number one, if the U bracket is bolted with two bolts, put an extra bolt.

[00:28:18] Speaker 02:
Or if the L tab that's welded, which you can clearly see in the photograph, the welding there, needs to be strengthened or repositioned, whatever the case may be, to add additional support to that location.

[00:28:30] Speaker 02:
But there's nothing that says nowhere since 2016 that we've been looking at this patent before this court now three times.

[00:28:36] Speaker 02:
We've never come across an issue, this sudden issue of, well, now there's a difference in the connector.

[00:28:42] Speaker 05:
Are you writing testimony explaining why this photograph doesn't show a hole?

[00:28:46] Speaker 02:
why it doesn't show a hole?

[00:28:47] Speaker 05:
Yes, yes.

[00:28:48] Speaker 05:
I mean, because I can see, I see both sides here.

[00:28:50] Speaker 05:
I can see a hole.

[00:28:52] Speaker 05:
And I can also see what you're talking about.

[00:28:54] Speaker 05:
So my question is, you know, it seems like it's a genuine issue of fact.

[00:28:59] Speaker 05:
So how do I resolve that?

[00:29:01] Speaker 05:
Because I look at it and I see both possibilities.

[00:29:05] Speaker 02:
I think if your honor looks at the, at the,

[00:29:09] Speaker 02:
picture carefully, you can see that the bed is in its connected state.

[00:29:12] Speaker 02:
The bed is assembled in that photograph.

[00:29:14] Speaker 02:
And then it would defy logic that if looking at that photograph where appellant identifies what they think is a hole, why would the longitudinal bar be sitting on top of it?

[00:29:25] Speaker 02:
It would be inserted.

[00:29:26] Speaker 02:
Think about it this way.

[00:29:27] Speaker 02:
You would not be able to see a hole if in the constructed state, the longitudinal bar was actually inserted into the hole.

[00:29:36] Speaker 02:
That would just defy.

[00:29:39] Speaker 02:
No, Your Honor, just the pictures.

[00:29:41] Speaker 02:
And the instruction manuals that say insert the headboard and the footboard connections in the exact same way.

[00:29:48] Speaker 02:
Instruction number six on all of the instruction manuals that have been submitted to the court.

[00:29:54] Speaker 01:
Is there anything in the record that gives a particular dimension, which is, say, the thickness of the footboard?

[00:30:03] Speaker 01:
I didn't see it.

[00:30:05] Speaker 02:
The thickness of the footboard, no, I don't recall.

[00:30:07] Speaker 01:
Presumably, it's 60 inches long, because that's queen size bed, right?

[00:30:12] Speaker 01:
And it's made, I don't know, 10.

[00:30:15] Speaker 01:
12 inches or something in height, thickness, which seems to me to have something to do with the plausibility of saying you're just going to put the central beam in a hole without attaching it in any way.

[00:30:26] Speaker 02:
Right.

[00:30:26] Speaker 02:
And that would also make sense given that they are relatively thin if you just look at them.

[00:30:30] Speaker 02:
I don't have the data, but it wouldn't make sense by the same token to have separate ones.

[00:30:35] Speaker 01:
Why isn't the right thing to do here to say that on the evidence presented,

[00:30:41] Speaker 01:
You can't say that there is no tribal issue of fact, but perhaps on remand a quite targeted bit of extra testimony might conclusively resolve this, either more directly from Woody.

[00:30:58] Speaker 01:
Did you make only one structure bed at the time that included

[00:31:04] Speaker 01:
I may be full stop or, um, experts or something who would say highly improbable that you would have a whole connection or look at this photograph.

[00:31:17] Speaker 01:
The lighting tells us that whatever, but the reason the current record we're left with things that leave me saying, yeah, I'm sort of speculating about things I can imagine being out there as facts in the world, but I don't know them.

[00:31:33] Speaker 02:
The reason why that's not needed, and that's not the case, and I respectfully take a different turn on this, is that as the judge pointed out in the district court's ruling, the evidence provided by Ms.

[00:31:45] Speaker 02:
Tan was uncontroverted.

[00:31:47] Speaker 02:
Nobody challenged it, and there was an opportunity for Zionists...

[00:31:52] Speaker 02:
Nobody challenged or disputed the authenticity of the documents that Ms.

[00:31:57] Speaker 02:
Tan testified to, the testimony that she gave, and the instruction manuals that she provided.

[00:32:05] Speaker 02:
Nobody challenged those.

[00:32:06] Speaker 02:
They were accepted for what they were.

[00:32:08] Speaker 02:
But instead, what we see in the opposition to the summary judgment is this appointment of these new quote unquote experts who based their

[00:32:17] Speaker 02:
declarations on pure speculation.

[00:32:20] Speaker 02:
Cindy Hunting starts her declaration with the words, it is impossible to tell how this connects.

[00:32:26] Speaker 02:
But I think it's a hole.

[00:32:28] Speaker 02:
That evidence compared to the testimony that PC-001 bet in the bottom.

[00:32:33] Speaker 01:
Just tell me if I'm thinking about this wrong.

[00:32:34] Speaker 01:
It seems to me there are two questions.

[00:32:37] Speaker 01:
One is, what do you make in the photograph?

[00:32:40] Speaker 01:
Let's assume that that's just neutral because you can't tell.

[00:32:44] Speaker 01:
Then the other question indeed the primary basis is this question.

[00:32:48] Speaker 01:
How do we know?

[00:32:49] Speaker 01:
for summary judgment purposes that the 2011 fusion instructions were instructions that describe the Mersenne deck there's different names why it's undisputed what the 2011 instructions show they do show a connector a fourth connector but it's not clear that

[00:33:12] Speaker 01:
that for purposes of your invalidity defense, which was not a prior art publication defense as resolved, it was an on sale bar defense, which meant that the actual beds shipped in 2012 had this feature.

[00:33:29] Speaker 01:
And the question is, isn't there a disputed issue of fact about whether the instructions were for that product?

[00:33:36] Speaker 02:
My answer to that question is undeniably there's not a disputed issue in fact because of the email confirming that we're taking this instruction manual out and putting it in this Mersenne bed to ship it to you so you have an instruction manual on how to bed it.

[00:33:49] Speaker 01:
In fact, we don't even know it's a Mersenne bed.

[00:33:51] Speaker 01:
We know a year earlier, or six months earlier.

[00:33:54] Speaker 02:
I'm sorry.

[00:33:54] Speaker 02:
We know that Woody Furniture Manufacturing made one bed in a box.

[00:33:59] Speaker 02:
There's always a bed in a box.

[00:34:00] Speaker 01:
That's line 12 of mini page 19 at 8447.

[00:34:04] Speaker 02:
Correct.

[00:34:05] Speaker 02:
And Ms.

[00:34:06] Speaker 02:
Tan also testified that all of these beds were the same construction.

[00:34:13] Speaker 02:
So we know that right away.

[00:34:15] Speaker 02:
And again, addressing the point of sharp practice.

[00:34:18] Speaker 02:
Judge Wilson had ordered us to take depositions of foreign nationals in 10, 12 days.

[00:34:23] Speaker 02:
I think it was something like that.

[00:34:25] Speaker 02:
And I immediately got on a plane flew to Singapore and met with these people and begged and pleaded with them to take it, sit it for a deposition.

[00:34:31] Speaker 02:
It was highly unusual for them to find themselves in this situation.

[00:34:35] Speaker 02:
And so the very day when I flew back to the United States, and they said, OK, we'll do it, but we're only going to do it on Wednesday.

[00:34:41] Speaker 02:
And this is a Sunday.

[00:34:43] Speaker 02:
We gave notice.

[00:34:43] Speaker 02:
That's all the time we had to arrange a court reporter, et cetera.

[00:34:46] Speaker 02:
I'm not offended, but it's bothersome that this would be called sharp practice.

[00:34:51] Speaker 02:
We were working with the tools we had.

[00:34:53] Speaker 02:
And we even provided a telephone line and said, hey, if you can't be here, we'll get you there.

[00:34:59] Speaker 02:
The appendix citation.

[00:35:01] Speaker 03:
I think we're about out of time.

[00:35:04] Speaker 03:
Unless there are further questions, if I want to call in.

[00:35:07] Speaker 03:
OK.

[00:35:07] Speaker 02:
Thank you, Mr. B. Thank you very much.

[00:35:08] Speaker 03:
Mr. Wolfe, so please address page 8447, which does seem to be testimony that there was only

[00:35:23] Speaker 03:
that customers use different names, and why isn't that sufficient to establish that the fusion instructions are the same as the Merson instructions?

[00:35:39] Speaker 04:
Your Honor, let me start answering that question by turning you to 8432.

[00:35:48] Speaker 04:
And this is

[00:35:50] Speaker 04:
a document from, this is the inspection report, the middle of the inspection report.

[00:35:56] Speaker 04:
And there was an implication that somehow appellees controlled the name of the bed, or that they were deciding what to call things, and it was kind of beyond the purview of appellants.

[00:36:05] Speaker 04:
If you look at the second column, third row, for example, you see this is going from Woody to appellees.

[00:36:16] Speaker 04:
You see, item, Merson Queen bed.

[00:36:19] Speaker 03:
OK, but you're not answering my question.

[00:36:21] Speaker 03:
I'm asking about the testimony on 8447, which seems to say there's one factory bed.

[00:36:30] Speaker 03:
It had the TC001 code, and the customers called the bed different things.

[00:36:37] Speaker 04:
But, Your Honor, my point is the customers weren't the ones calling the bed different things.

[00:36:40] Speaker 04:
We see a physical document here.

[00:36:41] Speaker 03:
No, no, no.

[00:36:42] Speaker 03:
That's perfectly consistent with the customer

[00:36:45] Speaker 03:
asking that the name that they applied to the bed be put on the box.

[00:36:50] Speaker 04:
Even assuming that's correct, Your Honor, we still get to the fundamental question that then fusion.

[00:36:54] Speaker 04:
Let's assume that my client was the one that called it Merson.

[00:36:58] Speaker 04:
Fusion was what they called it, undisputedly.

[00:37:01] Speaker 04:
And there's not a single question.

[00:37:02] Speaker 04:
Is fusion the same as Merson?

[00:37:04] Speaker 05:
Mr. Wolf, I just want to know if you agree with Judge Dyke's characterization of this testimony.

[00:37:08] Speaker 04:
I do not, Your Honor.

[00:37:09] Speaker 04:
Can you explain why?

[00:37:10] Speaker 04:
Because there's no suggestion that A, fusion is PC001.

[00:37:15] Speaker 04:
And B, when she says, and the factory code for that particular model of bed, answer yes.

[00:37:23] Speaker 04:
I read the rest of that testimony as talking about that particular model of bed.

[00:37:28] Speaker 04:
So that testimony is about the ways that particular model varied.

[00:37:33] Speaker 04:
And it varied based on the fabric and the stitching.

[00:37:35] Speaker 04:
And that's what the C means.

[00:37:37] Speaker 05:
What about the page 19 testimony where she says, just to differentiate for different customers, some people might like three stitching, but they're all the same construction, like bed in the box, but only different on the stitching on the headboard.

[00:37:53] Speaker 05:
Can we understand that to mean that

[00:37:56] Speaker 05:
All of the boxes made in that plant are the same.

[00:38:00] Speaker 05:
They're all bed-in-the-box, or at least that all bed-in-the-box constructions are the same structure.

[00:38:08] Speaker 04:
There's contrary evidence, but even putting that aside, I don't think that's the fairest reading of this testimony.

[00:38:13] Speaker 03:
Why is that not a fair reading?

[00:38:14] Speaker 04:
Because I think she's only being asked about PC-001.

[00:38:19] Speaker 04:
And she says it's a particular model, and then they go on.

[00:38:23] Speaker 04:
I think that would be an awfully thin read to base summary judgment.

[00:38:27] Speaker 03:
She says on page 17, this is the bed in the box that we called it the bed in the box item.

[00:38:34] Speaker 03:
And she says that's the factory code.

[00:38:39] Speaker 03:
PC 001 means all parts of the rest of the bed are contained inside the headboard.

[00:38:45] Speaker 03:
Yes, correct.

[00:38:45] Speaker 03:
And you zip it up.

[00:38:47] Speaker 03:
So she seems to be saying that there's one factory bed, and it bears that code.

[00:38:55] Speaker 03:
What is the contrary evidence to that?

[00:38:59] Speaker 04:
The contrary evidence?

[00:39:00] Speaker 04:
I mean, we can simply look at, if we look at in the opinion itself,

[00:39:08] Speaker 04:
If we look, there's two pictures, I think it's 828, but let me get to it.

[00:39:14] Speaker 04:
Yes, if you look at 828 in the opinion itself, there's two photos.

[00:39:21] Speaker 04:
One is of the fusion, 828.

[00:39:31] Speaker 04:
We see at the top the picture from the fusion and assembly instructions.

[00:39:35] Speaker 04:
the obviously what would comply with the claims.

[00:39:39] Speaker 04:
And we see the flanged connector that's to go to the headboard.

[00:39:43] Speaker 04:
Whatever you think of the picture below it, it is not that structure.

[00:39:49] Speaker 04:
There is no way that there are flanges to the east and west, the right and left of the hole, whatever you want to call it.

[00:39:56] Speaker 04:
So we know that there are two different structures, whether they meet or don't meet the claims.

[00:40:01] Speaker 04:
But more fundamentally, fusion.

[00:40:03] Speaker 05:
Why no way?

[00:40:04] Speaker 05:
I mean, why couldn't it be under the tent?

[00:40:08] Speaker 04:
Well, remember, there was undisputed testimony from Ms.

[00:40:13] Speaker 04:
Honey to Mr. Lee that if there were flanges underneath, you would see them.

[00:40:17] Speaker 03:
But she also testifies impossibly to tell from the photographs.

[00:40:22] Speaker 03:
And she goes on to the testimony, which sounds speculative as to what the photos show.

[00:40:27] Speaker 03:
Why isn't the district judge entitled to conclude

[00:40:32] Speaker 03:
or why, unappealed with de novo review, we're reading how the, okay, the photographs don't show anything.

[00:40:37] Speaker 03:
They don't show evidence one way or the other, but the testimony is that there was one factory model, the structure was the same except for the stitching, and that it was labeled PC-001.

[00:40:52] Speaker 03:
And there's no contrary testimony to that.

[00:40:55] Speaker 04:
There is literally no testimony whatsoever about the fusion and assembly instructions at all, about the word fusion.

[00:41:05] Speaker 04:
And there's no dispute by appellants that that's their word for it.

[00:41:07] Speaker 03:
You're not answering my question.

[00:41:09] Speaker 03:
I'm sorry.

[00:41:09] Speaker 03:
There is no contrary testimony that the factory produced different models, right?

[00:41:16] Speaker 04:
There's no testimony about that topic one way or the other.

[00:41:19] Speaker 04:
Correct.

[00:41:20] Speaker 04:
Yes, there's no contrary.

[00:41:21] Speaker 03:
From this testimony, this is the only testimony that bears on the question of whether the factory produced a single model.

[00:41:30] Speaker 04:
And I think the fairest entrance, if I were to be talking to a jury right now, I would say the fact that the factory called their bed fusion.

[00:41:39] Speaker 04:
They put the word fusion assembly instructions on the title of the instructions.

[00:41:44] Speaker 04:
And yet, the witness never said a word about those instructions.

[00:41:49] Speaker 04:
that that is, I would at least ask the jury to infer, that that suggests that there were, in fact, multiple beds, the fact that she wasn't asked about it, and the fact that they clearly, I believe, they showed different structures as 828.

[00:42:03] Speaker 05:
Yes, Your Honor.

[00:42:04] Speaker 05:
So your view is that the photo itself is evidence undermining the fact that the instructions for fusion apply to Mersenne, right?

[00:42:12] Speaker 04:
That's right.

[00:42:12] Speaker 04:
That's what Miss Hunting said.

[00:42:13] Speaker 04:
It's most likely the case.

[00:42:15] Speaker 05:
OK, and then my second question is, do you know if there's any testimony saying that the PC-001 includes fusion?

[00:42:24] Speaker 04:
We scrubbed the record the last three days, Mr. Nishimoto, Mr. Park, and myself.

[00:42:29] Speaker 04:
We did not find a single reference, not one reference, to PC-101 with regard to fusion.

[00:42:35] Speaker 04:
And we didn't see it claimed by appellant.

[00:42:37] Speaker 04:
We didn't see it below.

[00:42:38] Speaker 04:
We don't believe it does apply to fusion.

[00:42:41] Speaker 04:
I just don't have any proof of it.

[00:42:42] Speaker 04:
I just have the absence of evidence to point you to.

[00:42:44] Speaker 01:
Can I just ask, looking at the photo, is the hole down below the bar where the white is and then some dark color to the left?

[00:42:58] Speaker 01:
Or is the bar in a hole?

[00:43:00] Speaker 01:
And then if so, what is this structure?

[00:43:05] Speaker 01:
What's going on?

[00:43:06] Speaker 01:
Exactly.

[00:43:07] Speaker 04:
So, Your Honor, you can actually see a little bit of the arrow coming from the lower left pointing up to what we say is the hole.

[00:43:14] Speaker 04:
It's kind of, and that arrow is coming from the Chinese we were talking about that said strengthen the connection.

[00:43:22] Speaker 04:
So our supposition, and it's supposition, but it seems plausible, is that this is an inspection report.

[00:43:29] Speaker 04:
These are not assembly instructions.

[00:43:31] Speaker 04:
This is someone saying this is what's good and bad about the bed.

[00:43:34] Speaker 04:
And they're pointing out the fact that this hole isn't good enough, that we need to strengthen the connection.

[00:43:39] Speaker 01:
I'm sorry.

[00:43:40] Speaker 01:
Is it disputed that the photograph shows a assembled part of the bed frame?

[00:43:47] Speaker 01:
Oh, yeah.

[00:43:48] Speaker 01:
There are many.

[00:43:49] Speaker 01:
So what is your view of?

[00:43:52] Speaker 01:
how that connection is being made.

[00:43:55] Speaker 01:
Is the hole not visible because the bar is already in it?

[00:44:00] Speaker 01:
In which case, what's going on beneath?

[00:44:02] Speaker 04:
No, the hole is visible, Your Honor, if I could...

[00:44:05] Speaker 04:
So this is holding up a cup for the record.

[00:44:09] Speaker 04:
And I'm trying to get the right angle.

[00:44:10] Speaker 04:
The hole is here.

[00:44:11] Speaker 04:
The bar is sitting on top of it.

[00:44:14] Speaker 04:
And they're saying that's not good enough.

[00:44:16] Speaker 05:
Does the bar sit on top of the hole?

[00:44:17] Speaker 05:
Would it fall down?

[00:44:18] Speaker 04:
No, no.

[00:44:18] Speaker 04:
You can see that there's a lip to the cup, Your Honor.

[00:44:20] Speaker 04:
And that's what Ms.

[00:44:21] Speaker 04:
Hunty testified.

[00:44:22] Speaker 04:
You see the bottom lip?

[00:44:23] Speaker 04:
It's just resting on top of the hole.

[00:44:25] Speaker 04:
They're saying this isn't good enough.

[00:44:26] Speaker 04:
There's a hole here, you just stick the bar in the hole, and we need to strengthen the connection.

[00:44:31] Speaker 04:
That's what the comment is.

[00:44:33] Speaker 01:
Do you get what I'm confused about?

[00:44:35] Speaker 01:
I'm not sure.

[00:44:36] Speaker 01:
I expected the bar to go into that cup, if that's the hole.

[00:44:39] Speaker 01:
It will.

[00:44:39] Speaker 01:
And then I wouldn't see the white space.

[00:44:42] Speaker 04:
Right, exactly.

[00:44:43] Speaker 04:
When assembled, the bar goes into the, and you wouldn't see it.

[00:44:45] Speaker 01:
I thought you said this was assembled.

[00:44:46] Speaker 04:
No, it's not assembled.

[00:44:47] Speaker 04:
I'm sorry if I misspoke.

[00:44:48] Speaker 04:
Oh.

[00:44:49] Speaker 04:
So this is showing, the bar is sitting just above the hole.

[00:44:52] Speaker 01:
So what in the record tells us that it's uncertain whether this is a picture of an assembled bit?

[00:45:01] Speaker 01:
I think it was not, at least to my ears, it was not an unimportant piece of what Mr. Allen said that this was assembled.

[00:45:11] Speaker 03:
The judge says another photograph of the inspection report shows the assembled connection.

[00:45:17] Speaker 03:
and then cites the warring deposition for that proposition.

[00:45:21] Speaker 04:
If you cite those pages, that is not assembled.

[00:45:24] Speaker 04:
In fact, you can just look, and I'm holding up the assembly, and you can see that some of these pictures are assembled and some are not.

[00:45:29] Speaker 04:
This is an inspection again, not an assembly.

[00:45:32] Speaker 04:
So our understanding is, and Ms.

[00:45:35] Speaker 04:
Hunting's understanding looking at it, is that the bar was sitting just above the hole, showing the hole.

[00:45:40] Speaker 04:
That was the point of the picture.

[00:45:42] Speaker 05:
What is allowing the bar to stay there?

[00:45:44] Speaker 01:
Friction I mean I I mean I'm It looks to me like there's a lip to the cup to the the plastic cup, but in your view This is not showing the way that This would be used by a person lying on the bed Because you would need to drop the bar down just put it you would plug it in that's right, okay?

[00:46:08] Speaker 01:
But that's your view.

[00:46:09] Speaker 04:
And I think that that's why the caption is relevant and important, because they're pointing out what's going on in the picture.

[00:46:17] Speaker 01:
And you didn't have any information about the thickness of the flipboard?

[00:46:23] Speaker 01:
We do.

[00:46:23] Speaker 01:
We have some, Your Honor, that- In the record?

[00:46:25] Speaker 04:
Yes.

[00:46:26] Speaker 04:
Miss Hunting testified.

[00:46:27] Speaker 04:
And remember, the district court disregarded Miss Hunting's testimony because it said she didn't consider the instructions.

[00:46:35] Speaker 04:
What did she testify that thickness was?

[00:46:37] Speaker 04:
Yeah, she testified that the hole was about an inch deep in the footboard.

[00:46:44] Speaker 04:
That's what it appeared to her, that it was about an inch deep hole.

[00:46:47] Speaker 01:
Oh, but we don't actually have kind of a dimension.

[00:46:51] Speaker 04:
That's the only thing in the record.

[00:46:53] Speaker 04:
But we do have an inch deep is the estimate of what we're looking at.

[00:46:57] Speaker 04:
For the white is the back of the hole.

[00:46:59] Speaker 04:
And the testimony was that that's most likely a thin sheet of plywood at the back of the hole.

[00:47:04] Speaker 04:
And that's what you're seeing in white.

[00:47:06] Speaker 04:
And that that's about an inch back from the face of the football.

[00:47:10] Speaker 03:
Is the lorry testimony that's cited in the district court's opinion in the appendix here?

[00:47:16] Speaker 04:
Some of it is.

[00:47:17] Speaker 04:
And I would absolutely invite the court to read it, because it does not.

[00:47:21] Speaker 03:
Where is it?

[00:47:22] Speaker 03:
Where is the?

[00:47:37] Speaker 04:
Which, are you talking about footnote 40?

[00:47:40] Speaker 03:
Footnote 68.

[00:47:42] Speaker 03:
Oh, I might have been thinking of it.

[00:47:43] Speaker 03:
The judge says another photo of the inspection report shows the assembled connection in the site's PID at three, which is the Lorry deposition at three.

[00:47:53] Speaker 04:
I don't believe that's in the record, Your Honor, that site.

[00:47:56] Speaker 04:
I'm sorry, I thought you were talking about a different footnote.

[00:47:59] Speaker 04:
I thought you were talking about the footnote at 75.

[00:48:03] Speaker 04:
But I don't believe that's in the record, but I don't know that for a fact.

[00:48:07] Speaker 01:
There are some lorry deposition excerpts starting at $73.54.

[00:48:37] Speaker 04:
I mean, obviously, I reread the lorry in the record, and I don't recall seeing that testimony.

[00:48:43] Speaker 04:
But I can't confirm that sitting right here.

[00:48:47] Speaker 03:
OK.

[00:48:48] Speaker 03:
Thank you, Your Honors.

[00:48:50] Speaker 03:
Thank you.

[00:48:51] Speaker 03:
Thank both counsel.

[00:48:51] Speaker 03:
The case is submitted.

[00:48:52] Speaker 03:
Thank you.