[00:00:01] Speaker 00:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and its honorable court.

[00:00:12] Speaker 04:
Good morning, everyone.

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The first argued case this morning is number 21-1443, High Terror Communications Corporation against Motorola Solutions.

[00:00:24] Speaker 04:
Mr. Ryland.

[00:00:26] Speaker 01:
Thank you.

[00:00:27] Speaker 01:
Good morning, Your Honor.

[00:00:28] Speaker 01:
May it please the court

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The district court in this case found no infringement and dismissed the entire case in a court opinion that was inconsistent with this court's precedent, the federal and local rules, and even inconsistent with the party's arguments.

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Mr. Rylan, this is Judge Wallach.

[00:00:43] Speaker 01:
Yes, Judge Wallach.

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On page 26 of the red brief, Motorola says, and I'm quoting him, the record is clear that Hiterra voluntarily withdrew both, and I'm adding this in, the energy normalization theory.

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and the linear scaling theory.

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After its expert introduced them for the first time in his infringement report, and Motorola moved to strike them.

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Then on page 57 of the Red Break, Motorola says, with respect to the energy normalization theory, Hiterra remarkably contends Motorola never moved to strike that theory, and Hiterra never withdrew it.

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The records shows that Motorola objected your expert's reliance on energy normalization and that you later deleted the paragraph which referred to energy normalization from your expert's amended report.

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Why should we consider these theories on appeal if you've withdrawn them and did you not withdraw them?

[00:01:50] Speaker 01:
Two reasons, Your Honor.

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First, we did not withdraw the entire theory.

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We struck a portion of the expert report in response to a threatened motion to strike to move forward towards summary judgment.

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So because we removed that piece of evidence, we didn't remove the entire theory.

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The second is that Motorola's expert.

[00:02:07] Speaker 03:
Wait, wait, wait.

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Did you strike the reference to energy normalization?

[00:02:18] Speaker 01:
In the expert report?

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Yes, your honor.

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Then what's your second reason?

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The second reason is that both in the expert report and in deposition testimony of both experts, but particularly Motorola's expert, referred to this same energy normalization in support of an invalidity theory.

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And he relied on code that he considered to be or he said was identical or nearly identical to code that we were relying on for infringement and explained what the function of energy normalization was.

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So relying on that piece of testimony and that evidence

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From Motorola's expert, we still believe the theory to be in the case, because it confirmed that energy normalization provided the necessary gain for the treble boost.

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OK.

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Let me ask you about one other thing, and that is the two screenshots reporting to show a treble boost during a test you performed.

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Motorola contends that you claim privilege and refuse to produce those two screenshots.

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Did you provide any other basis than

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privilege in refusing to produce them.

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And if you did refuse to produce them, how can you rely on them now?

[00:03:31] Speaker 01:
I'm not sure that we refused to produce them.

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I know that there was some dispute about it, but it died out during the case.

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We produced the screenshots for sure, and I'm not sure which portion was refused to be produced.

[00:03:45] Speaker 01:
I'm confused on the question, Your Honor.

[00:03:48] Speaker 03:
OK, then I'll let

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Motorola elucidate?

[00:03:54] Speaker 01:
That's fine.

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We produced the screenshots.

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Those screenshots were then provided to the expert, I believe.

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But the expert opined on it, and they were able to inquire as to them with the expert.

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I'm not sure what we prevented Motorola from having that they said they needed for summary judgment, nor did the issue persist into discovery, in the case of lots of discovery disputes.

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So if there was a refusal,

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produce it, I don't know that that issue actually came to a head prior to summary judgment.

[00:04:25] Speaker 03:
Okay.

[00:04:25] Speaker 03:
Well, I'll let counsel clarify that and then you'll be able to respond.

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I don't want to get any more of your time.

[00:04:31] Speaker 01:
Certainly.

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What I want to talk about is the inconsistencies in the case.

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And along the way here, the judge refused to construe disputed claim terms, but then gave them elaborate means to find non-infringement.

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The district court labeled disputed facts as quote unquote agreed.

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to be able to satisfy rule 56.

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And Motorola proffered and ultimately prevailed on an argument to this day it claims was timely.

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But in an opinion following Highterra's opening appeal brief here, the district court confirmed that the base boost argument that was a basis for summary judgment wasn't raised until summary judgment.

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And that's a problem because that's nearly two years after the time it was supposed to be disclosed in the contentions.

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We think the entire opinion should be overturned, but today I want to focus on two key inconsistencies.

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And there are two pure legal errors that these standing alone warrant remanding the case.

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First, it's the district court's reading of or or the base boost issue.

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And the court construed or.

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to require, in a method claim, a device with two thresholds and capable of performing two alternative steps, face boost and treble boost.

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And after summary judgment, it clarified even further, and actually in more confusing fashion, that it rejected the court's or, this court's or precedent that was cited by Hayterra in favor of reading or to mean if then rather than either or.

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And that's actually directly in the C's opinion of this case, when JA

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10537 in the footnote.

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The second legal issue in legal error is the district court's wholesale failure to consider the doctrine of equivalence.

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Yes, sir.

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This is Judge Wallach again.

[00:06:23] Speaker 03:
I want to ask you about your argument you just made.

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The word or in step 103 is a conditional statement that specifies both what to do if the ambient noise is too loud

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And what to do if the ambient noise is too quiet?

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Let me quote, performing a treble boost processing if it is determined that the energy value of the current ambient noise is greater than a first threshold, or performing a bass boost processing it if it is determined that the energy value of the current ambient noise is smaller than a second threshold.

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According to independent claim one, an infringing device must perform a treble boost or a bass boost, but not both, each time the method is performed.

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So it's not enough for the audio output device to only perform a treble boost in a noisy environment.

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How do you respond?

[00:07:25] Speaker 01:
Well, first of all, I don't believe that the what's separated on either, I don't believe that or is a conditional statement, because the conditionals, if this,

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perform this, and then OR.

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So that would separate two steps, alternative steps, with each having a conditional statement.

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Second, I don't read the patent that narrowly.

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There is no reason to read the patent as requiring both when the OR was used.

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In fact, that's what this court has said routinely is what OR means is it's designating alternatives.

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And in this instance, the invention is aimed at a volume adjustment coupled with a frequency adjustment.

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Now, if the steps are performed and one use occurs, and that's all that's necessary for infringement of this method claim, is one use.

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If it follows those steps and performs one of the two designated alternatives, that's consistent with this court's reading of or.

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To require both determinations is contrary to what the claim says.

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The claim could have been written that way, and it's not.

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The patentee chose to designate the two alternative steps using the word or.

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But the district court said that it had to have the capability of responding to either the treble or the bass and that that was the foundation for the decision of non-imprisonment.

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Is that a fair statement of what was decided?

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I don't believe that the district court was correct in that for several reasons.

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The first of which is that there is, you know, that same exact argument was raised before this court in Schumer

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where there was an OR statement that the defendant argued required a capability of performing the alternative steps.

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And this court rejected that.

[00:09:15] Speaker 04:
Well, but you look at the usage of OR, the alternative, based on the teachings of the specification.

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Other than that, I agree that in the claim it could be deemed ambiguous.

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But we have the specification.

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which says that it will respond to either the treble or the bass, depending on what the ambient circumstances constitute.

[00:09:44] Speaker 01:
Is that correct?

[00:09:46] Speaker 01:
I agree, Your Honor, that it responds to either or, and that's the, you know, the focus is the word or here, and it's either or, and it performs either or, but the claim interpretation based on the specification

[00:10:00] Speaker 01:
doesn't require that the claim be read so narrowly that both occur.

[00:10:03] Speaker 01:
In fact, if you look at figure two in the patent, the last step is not treble boost or bass boost.

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It's a frequency adjustment.

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And the patent at, well, at column one, 43 through 47 talks about what the purpose of the invention is.

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And it's really that the essence of this invention is performing an adaptive volume

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adjustment in conjunction with the frequency adjustment.

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If the patent team wanted both to be performed, it would have claimed it that way.

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Claim one, though, designated alternative steps following what this court's precedent is for OR.

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And one of those two is performed by Motorola, thereby confirming infringement of that step.

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Also, in the footnote, the court said that the OR, and excuse me, in the fees footnote that I referenced before,

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The court read or is if then, which if you inject that into the claim, the claim doesn't even make sense that you would perform a treble step or treble boost at a certain frequency if then perform a bass boost at a second threshold.

[00:11:16] Speaker 01:
So what I'm confused is that there's pretty straightforward law for or from this court

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The court then said there's absolutely no need for construction and then went on to construe the claim as requiring two thresholds, requiring the capability to do both boosts, requiring a determination of the thresholds in both instances when the claim and the specification support that was really required is a volume adjustment and a frequency adjustment.

[00:11:42] Speaker 01:
Which one it does doesn't matter because of the or and Motorola performs that treble boost and that's confirmed in the record.

[00:11:51] Speaker 04:
But it doesn't have the capability of the base boost.

[00:11:55] Speaker 01:
Correct.

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And there's nothing that says that it's required to have the capability of the base boost in the claim.

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It's two conditional steps separated by an OR.

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And that's where I feel like we've gotten off base a little bit.

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And this actually highlights what Motorola did below.

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Below, they said that it's a device capable of both boosts and said no construction was necessary on appeal

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They changed their tune completely and said, the court construction is right.

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Well, first of all, the court never even gave high terror an opportunity for a claim construction.

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And second, it now argues that these conditional statements must be read and performed together.

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And if you look at our brief, that actually rewrites the claim.

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That moves both conditional statements up and requires them to be performed, and then a determination of which boost is performed.

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In fact, Motorola doesn't have to work.

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Yes, sir.

[00:12:46] Speaker 01:
Yes, sir.

[00:12:50] Speaker 02:
Councilor, this is Judge Ranham.

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If we affirm the district court's grant to summary judgment based on the base boost requirement, there's no need to remand, right?

[00:13:00] Speaker 02:
I mean, you'd lose on that point.

[00:13:03] Speaker 01:
Yes, Your Honor.

[00:13:03] Speaker 02:
We do.

[00:13:04] Speaker 02:
Okay.

[00:13:05] Speaker 02:
All right.

[00:13:09] Speaker 01:
I just want to close by saying, you know, the oddities in this case are simply

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This case persisted for three years.

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A base boost argument came up at summary judgment.

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In fact, the first time we saw it was a rebuttal expert report with no ability to address it with our expert or for claim construction.

[00:13:31] Speaker 01:
This dismissed the case outright on an argument, an issue that we never raised and it was clear we never raised.

[00:13:37] Speaker 01:
This kind of discrepancy is sort of what leaves us baffled in that the court really went out of its way to find different ways to interpret or

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than what this Court has said in the past.

[00:13:51] Speaker 04:
All right.

[00:13:51] Speaker 04:
Let's hear from the other side, and we'll save you rebuttal time.

[00:13:55] Speaker 04:
OK, Mr. Wilcox.

[00:14:04] Speaker 00:
Thank you, Judge Newman, and may it please the Court.

[00:14:06] Speaker 00:
Jason Wilcox on behalf of Motorola Solutions.

[00:14:10] Speaker 03:
Mr. Wilcox, this is Judge Wallach.

[00:14:12] Speaker 03:
Would you address that question of the

[00:14:15] Speaker 03:
two screenshots.

[00:14:18] Speaker 00:
Yes, Judge Wallach.

[00:14:20] Speaker 00:
So they did include the screenshots in their infringement contentions, as you can see, you know, on appendix 6953 to 6954.

[00:14:29] Speaker 00:
What they didn't produce at any point was the underlying text behind those screenshots.

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and their expert never relied on those screenshots in his report.

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If you look at Appendix 5062 to 5068, where their expert lays out his opinion on the treble boost limitation, he never mentions the screenshots.

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As far as I know, their testifying expert was never provided the screenshot.

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Those screenshots were created by tests performed by a consulting expert, and as we argued at Appendix

[00:15:01] Speaker 00:
9777, when we asked for that information, they refused to provide it, saying it was only given to a consulting expert under Rule 26.

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They didn't have to disclose it.

[00:15:13] Speaker 00:
And that's fine.

[00:15:14] Speaker 00:
That's their choice.

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But then once they make that choice, they then can't rely on it to defeat summary judgment.

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And at this point, where none of the witnesses in the case have seen it and their experts didn't rely on it, they don't have an avenue to get it into evidence.

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create a material dispute of fact.

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So I think that that's why screenshots aren't relevant and don't create an issue that would prevent summary judgment here on the trouble-boost limitation.

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But I also judge Wallace wants to address the base-boost limitation since that's where my friend on the other side spent most of his time.

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And I think that you are exactly right, Judge Wallach and Judge Newman, that that is a conditional limitation.

[00:16:01] Speaker 00:
The final step of the method is a conditional limitation.

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It presents two conditional choices tied to two different thresholds, requires determining whether either of those two thresholds is met, and if so, requires performing the corresponding frequency boost.

[00:16:17] Speaker 00:
Trouble boost if the first threshold is met because it's a loud environment,

[00:16:23] Speaker 00:
because it's a quiet environment.

[00:16:25] Speaker 00:
And as you picked up on, Judge Newman, that's confirmed by the specification.

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If you look at the specification, that appendix, sorry, not appendix, but at columns four, lines five to nine, and column 11, lines 28 to 38, it talks about the purpose of the invention, which is continuously adjusting the frequency response as you move between quiet and loud environments.

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That requires

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being able to perform both types of boost.

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And under high-career theory, the user would have to manually adjust the boost in quiet environments, which is exactly what the invention is trying to avoid, saying it gets in the way of people doing that work.

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But beyond the purpose of the invention, as those lines in the specification, you also have several examples

[00:17:12] Speaker 00:
in the specification where it uses conditional language to talk about these claim sets.

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So you have the abstract where it talks about how you need to perform the treble boost while judging that the ambient noise is bigger than a first threshold and a bass boost while judging that the ambient noise is bigger than a set is below a second threshold.

[00:17:32] Speaker 00:
That's not laying out alternatives.

[00:17:34] Speaker 00:
That's saying you need to perform the relevant boost while the necessary condition is satisfied.

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The claim says, or sorry, the specification says the same thing at column 5, line 19 to 26, and column 10, line 62 to 66, and column 11, line 4 to 7.

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And as you said, Judge Newman, you also have column 3, line 66, column 4, line 3, where it talks about the frequency response may be adjusted through the treble boost or the bass boost based on the energy value of the current ambient noise.

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you take the current ambient noise into account, and then you perform the necessary boost.

[00:18:14] Speaker 00:
And that's not only repeated throughout the specifications, it's also the position the examiner took, Appendix 5043, when initially allowing the claims, and the position HITERA took itself in ICR proceedings, at Appendix 5258, 5261, and 528182, where it talked about a first and second threshold, and said that

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And there would have been no reason to talk about a first and second threshold if you only needed one or the other.

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But you need both.

[00:18:46] Speaker 00:
So I think that that's evidence from the language of the claim, Your Honor.

[00:18:51] Speaker 00:
We believe that that's only one of the bases, though, this Court has to affirm on.

[00:18:55] Speaker 00:
It can also affirm

[00:19:01] Speaker 00:
And I'm happy to answer any questions the court has about those other grounds, but I didn't hear my friend on the other side address them.

[00:19:09] Speaker 00:
Just as I didn't hear my friend on the other side address the doctrine of equivalence issue that you wanted to raise and which, as Judge Rayna pointed out, the court doesn't need to reach if it affirms on base boost.

[00:19:22] Speaker 00:
So if there are no other questions from the court, I will yield back the balance of my time.

[00:19:28] Speaker 04:
Well, Judge, just to be clear,

[00:19:29] Speaker 04:
Their argument is that if you only need a treble boost, it doesn't matter if you have the capability for the bass boost or not, you still would have infringement because the capability is stated in the alternative.

[00:19:47] Speaker 00:
It is stated in, it is not, I guess, I don't agree, Judge Newman, that it's stated in the alternative.

[00:19:52] Speaker 00:
There is an or there.

[00:19:53] Speaker 00:
What's the function that the or is serving?

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is to signal that you can only perform one of them.

[00:19:59] Speaker 00:
So you'll either perform a base boost or you will perform a trouble boost.

[00:20:03] Speaker 00:
You'll never perform both because that would be inconsistent with the purpose of the invention.

[00:20:08] Speaker 00:
But you still have to be capable of evaluating and determining whether the first threshold and the second threshold are satisfied and taking the appropriate conditional action if it is.

[00:20:21] Speaker 00:
And I think that's consistent with this court's previous decision

[00:20:24] Speaker 00:
between these same parties in the high tariff case from last year, where the court looked at the language that was an if, one thing to a selecting step, otherwise do another.

[00:20:35] Speaker 00:
And I disagree that that leads to any strange result here.

[00:20:38] Speaker 00:
My friend on the other side talked about an if-then formulation.

[00:20:42] Speaker 00:
I think that what all it says is if the first threshold satisfied, you perform a trouble

[00:20:50] Speaker 00:
Or, if the second threshold is satisfied, you perform a base boost.

[00:20:55] Speaker 00:
That's a very common type of conditional statement.

[00:20:57] Speaker 00:
It isn't laying out two types of alternatives, and it isn't using the type of alternative language that this court has used or has claimed to use in the past, where this court has said that the limitation is just a list of alternatives.

[00:21:11] Speaker 00:
It doesn't say at least one of, or one or more of the following.

[00:21:15] Speaker 00:
It lays out two conditions and specifies the actions to take

[00:21:20] Speaker 00:
to determine if those conditions are satisfied and take the appropriate actions to perform the claim.

[00:21:27] Speaker 00:
The final thing I will say, Judge Newman, is my friend on the other side suggested that the district court acknowledged this was sprung on the other side at the last minute.

[00:21:36] Speaker 00:
If you look at what the district court actually said in its fee opinion,

[00:21:40] Speaker 00:
At a test, it's 10-5-37.

[00:21:43] Speaker 00:
Well, what it said was Motorola didn't file a motion to dismiss based on this argument and waited to summary judgment.

[00:21:50] Speaker 00:
It wasn't saying that Motorola sat on its hands to raise this argument until summary judgment.

[00:21:55] Speaker 00:
As you heard from my friends on the other side, we mentioned it in our expert report, which you can see

[00:22:05] Speaker 00:
Hiterra knew it was in dispute and had the full opportunity to brief it as part of the summary judgment briefing and the district court looked at the arguments that the parties made, looked at the intrinsic evidence, and decided based on that intrinsic evidence that those claims require the capability of performing the base boost limitation.

[00:22:26] Speaker 04:
Okay.

[00:22:26] Speaker 04:
Any more questions for Mr. Wilcox?

[00:22:29] Speaker 02:
Not for me.

[00:22:32] Speaker 04:
All right.

[00:22:32] Speaker 04:
Mr. Riland, you have your rebuttal time.

[00:22:35] Speaker 01:
I want to hit a couple of points very quickly.

[00:22:38] Speaker 01:
First, my friend on the other side said that the court didn't say that this issue wasn't addressed until summary judgment.

[00:22:44] Speaker 01:
But on appendix 1053A, the court said, neither party directly addressed the issue until the summary judgment stage.

[00:22:52] Speaker 01:
And once raised, Motorola prevailed on the issue.

[00:22:56] Speaker 01:
I wanted to also quickly touch on the doctrinal equivalence, because base boost and doctrinal equivalence rise and fall with each other.

[00:23:02] Speaker 01:
And Motorola's briefed.

[00:23:04] Speaker 01:
essentially concedes that.

[00:23:06] Speaker 01:
Its only substantive argument for doctrine of equivalence is that base boost precludes it.

[00:23:11] Speaker 01:
If the court sides with HITERA on base boost, then the only argument that remains is waiver.

[00:23:16] Speaker 01:
And HITERA has maintained consistently its doctrine of equivalence argument from the complaint, amended complaints, infringement contentions, expert report, and reserved it in its partial motion for summary judgment.

[00:23:27] Speaker 01:
So that's clearly not a waiver in a case that was cited.

[00:23:32] Speaker 02:
Council, I may have missed it, but did you address

[00:23:35] Speaker 02:
doctrine of equivalent in your initial argument this morning?

[00:23:39] Speaker 01:
I tried to.

[00:23:40] Speaker 04:
I tried to, but didn't get to it.

[00:23:43] Speaker 04:
Are you saying that the base and treble boosts are equivalent?

[00:23:49] Speaker 04:
And therefore, it doesn't matter how the claim is construed?

[00:23:54] Speaker 01:
No, Your Honor.

[00:23:54] Speaker 01:
What I'm saying is that if the base and ore issue is resolved in high terrorist favor,

[00:24:00] Speaker 01:
The remaining issues don't preclude the court from considering the doctrine of equivalence.

[00:24:05] Speaker 01:
In fact, the court didn't consider it at all.

[00:24:07] Speaker 01:
And the only rebuttal that Motorola has on waiver is simply that base boost would prevent it.

[00:24:15] Speaker 01:
If base boost issue is overturned, then the doctrine of equivalence is in play.

[00:24:18] Speaker 01:
And the case, at a minimum, must be remanded for the doctrine of equivalence.

[00:24:23] Speaker 01:
Lastly, I wanted to touch on the charts or the figures that were provided and then claimed as

[00:24:30] Speaker 01:
Council claims were covered by privilege.

[00:24:34] Speaker 01:
Motorola was informed that we had a consulting expert perform those tests.

[00:24:44] Speaker 01:
It was called MD Acoustics and we informed them of that discovery.

[00:24:47] Speaker 01:
We made them available and they could be deposed.

[00:24:50] Speaker 01:
Motorola chose not to depose them and that was the end of the issue.

[00:24:56] Speaker 01:
That was not, as my friend said, needed to create a material dispute of fact.

[00:25:02] Speaker 01:
There was lots of evidence.

[00:25:03] Speaker 01:
Mostly, in fact, most importantly, the code.

[00:25:06] Speaker 01:
Motorola's own code confirmed all of the things that were shown in those charts.

[00:25:10] Speaker 01:
So to say that the material issue of fact rises and falls with those charts is simply not the case and not what was argued below.

[00:25:20] Speaker 04:
OK.

[00:25:20] Speaker 04:
Any more questions for Mr. Ryland?

[00:25:23] Speaker 03:
Not for me.

[00:25:23] Speaker 03:
Thank you.

[00:25:26] Speaker 04:
All right.

[00:25:27] Speaker 04:
Thank you.

[00:25:27] Speaker 04:
Thanks to both counsel.

[00:25:29] Speaker 04:
The case is taken under submission.