[00:00:01] Speaker 01:
This morning is 21-1856, Pulse Electronics versus UD Electronic Corporation.

[00:00:08] Speaker 01:
Mr. Chen, whenever you're ready.

[00:00:15] Speaker 05:
Thank you, Your Honor.

[00:00:17] Speaker 05:
May it please the court.

[00:00:18] Speaker 05:
My name is Lee Chen, and I represent the appellant, Pulse Electronics.

[00:00:23] Speaker 05:
Your Honors, the district court made significant legal errors when it ruled on summary judgment.

[00:00:30] Speaker 05:
that there is no evidence of infringing activity by UDE in the US.

[00:00:35] Speaker 05:
The record is extensive, and the parties differ on what inferences should be drawn from that record.

[00:00:42] Speaker 05:
But on summary judgment, the district court was required to draw the inferences in favor of Pulse, the non-movement.

[00:00:49] Speaker 05:
This it did not do.

[00:00:51] Speaker 05:
Instead, the district court made findings of fact against Pulse, the non-movement in the summary judgment proceeding on virtually every contested issue

[00:01:00] Speaker 05:
In so doing, the district court turned the summary judgment standard on its head and its ruling on issues 1, 4, and 5 must be reversed.

[00:01:10] Speaker 01:
Well, you used the word contested, and that can mean several things.

[00:01:14] Speaker 01:
I mean, yeah, OK, I'm not going to quibble.

[00:01:16] Speaker 01:
Maybe it was contested.

[00:01:17] Speaker 01:
But in order for it to really be contested, you have to put forth something that at least gives you the inferences.

[00:01:25] Speaker 01:
And the district court went through really each piece of evidence

[00:01:30] Speaker 01:
and analyzed it and concluded that that evidence didn't do it for you.

[00:01:39] Speaker 01:
So it may be contested, but it's no longer defeat summary judgment if the evidence just isn't there.

[00:01:48] Speaker 05:
Thank you, Your Honor.

[00:01:48] Speaker 05:
I think that's an important point.

[00:01:50] Speaker 05:
And I would submit that the evidence was there and that the district court

[00:02:01] Speaker 05:
made findings on some of that record.

[00:02:05] Speaker 05:
And if I may, I'll go through some of this record.

[00:02:08] Speaker 01:
Well, I'd be happy to, because his opinion is so thorough.

[00:02:11] Speaker 01:
So if you want to pick out a few examples where you think that he got his analysis of the facts and the evidence, or his conclusions would not support it?

[00:02:21] Speaker 05:
Certainly, Your Honor.

[00:02:23] Speaker 05:
I'll begin with the inducement infringement issue.

[00:02:27] Speaker 05:
Now, it's undisputed that UDE was aware of the Patents Institute and Pulse's infringement claims as early as October of 2016 and February of 2017.

[00:02:37] Speaker 05:
The record also shows that UDE issued numerous invoices showing its accused ICMs were ultimately destined for the US.

[00:02:47] Speaker 05:
This is not so much a point about the-

[00:02:52] Speaker 04:
Identify and let me look at of course.

[00:02:55] Speaker 04:
I know what's your best invoice.

[00:02:58] Speaker 04:
I Know I don't care if it's I'm not forcing you to choose one I want to look at an invoice that you think is important.

[00:03:05] Speaker 05:
Yes, your honor pages 29 61 through 63 of the record

[00:03:19] Speaker 01:
Sorry, give me the number again.

[00:03:21] Speaker 05:
2961 through 63.

[00:03:25] Speaker 04:
And I realize this is all in yellow, which means presumably somebody thinks this is confidential.

[00:03:40] Speaker 04:
So you may have some trouble doing what's absolutely essential, which is talking about the specifics.

[00:03:46] Speaker 05:
I think I can talk about this record without

[00:03:49] Speaker 05:
without mentioning, well, I'll try to do my best in that regard.

[00:03:59] Speaker 05:
So the particular entity, so I would first point out that these invoices, along with many others, show the ultimate destination for the accused UDICMs were in the US.

[00:04:13] Speaker 04:
So by line number or something, where do you think that is shown?

[00:04:24] Speaker 04:
Above the telephone number?

[00:04:26] Speaker 04:
Is that the line?

[00:04:27] Speaker 05:
I believe so, Your Honor.

[00:04:31] Speaker 05:
Yes.

[00:04:32] Speaker 05:
Right above the telephone number, it shows the specific street address in the United States.

[00:04:38] Speaker 05:
Now, the entity, and there are many others that show similar street addresses in the US.

[00:04:47] Speaker 05:
And this is not a point about the bill to or whether or not

[00:04:51] Speaker 05:
title was transferred at a certain point.

[00:04:53] Speaker 05:
But it shows that these UDE-issued invoices, these were invoices issued by UDE, so it must have known where its accused products were ultimately destined.

[00:05:05] Speaker 01:
Now, the identity of- And there's no dispute that these were accused products?

[00:05:11] Speaker 05:
There's no dispute.

[00:05:14] Speaker 05:
The G series, Your Honor, under Sellers PN,

[00:05:18] Speaker 05:
it lists the product number for the seller.

[00:05:25] Speaker 04:
The following question comes up with respect to at least some of the other invoices too.

[00:05:31] Speaker 04:
So I don't think it's confidential to say that the word forwarder appears on here.

[00:05:39] Speaker 04:
Why is what is good?

[00:05:42] Speaker 04:
Is the address where UDE is shipping it to, or is that simply the address, the home address of the forwarder, which is named in the line above, but the delivery to the forwarder is not in the US?

[00:05:59] Speaker 04:
It's in Hong Kong.

[00:06:01] Speaker 04:
That I don't think is confidential.

[00:06:03] Speaker 05:
I think it's the ultimate destination for the products, rather.

[00:06:08] Speaker 04:
The address is the ultimate destination.

[00:06:10] Speaker 04:
How do you know that?

[00:06:11] Speaker 04:
I took this and some other ones, like a 2911, to be that the address line was the home address of the forwarder, but the delivery is to the forwarder in Hong Kong.

[00:06:26] Speaker 04:
And then the forwarder does whatever the forwarder is going to do with it.

[00:06:31] Speaker 04:
Why is that?

[00:06:32] Speaker 05:
So this is in part an inference on my part, Your Honor.

[00:06:37] Speaker 05:
My understanding is this entity is in the United States.

[00:06:42] Speaker 05:
I don't believe this entity has a presence in Hong Kong.

[00:06:46] Speaker 04:
But up above it says shipped from Hong Kong to Hong Kong.

[00:06:50] Speaker 04:
What does that mean?

[00:06:57] Speaker 05:
My understanding is that's where the title transfer took place.

[00:07:02] Speaker 03:
Isn't that where delivery took place?

[00:07:05] Speaker 05:
But the ultimate destination, even if that's where delivery took place, Your Honor, this shows the ultimate destination for the accused products is actually the US.

[00:07:15] Speaker 05:
And there is another piece of fact that I believe ties it in, especially in the context of inducement.

[00:07:21] Speaker 03:
This particular, I'm sorry.

[00:07:23] Speaker 03:
So if a party, a foreign party, an Asian party sells product to another Asian party in Asia,

[00:07:32] Speaker 03:
But the seller of that product knows that the Asian buyer is ultimately going to ship that purchased product, along with a bunch of other things, to America.

[00:07:46] Speaker 03:
Is that enough to make the seller of that product viable for induced infringement?

[00:07:55] Speaker 05:
not by itself, Your Honor.

[00:07:57] Speaker 05:
And in this case, we don't think we need to focus only on that piece of act.

[00:08:02] Speaker 05:
And that is because this particular entity.

[00:08:05] Speaker 03:
Right.

[00:08:05] Speaker 03:
So we agree that that would be insufficient.

[00:08:07] Speaker 03:
So even if we were to agree with you that this invoice suggests that

[00:08:15] Speaker 03:
the sold and purchased product in Hong Kong ultimately enters the United States, you've got to prove even more than that.

[00:08:26] Speaker 03:
You still have missing elements to prove 271B induced infringement.

[00:08:32] Speaker 05:
Yes, Your Honor.

[00:08:36] Speaker 05:
The missing piece, I would submit, it comes from UDE's own website, which lists its US agents and distributors.

[00:08:47] Speaker 05:
And this entity that purchased the accused ICMs, the accused UDE ICMs, is listed and promoted by UDE on its own website as a distributor of UDE products.

[00:09:03] Speaker 05:
And we believe that given UDE's knowledge of the patent suit, given its knowledge of Pulse's infringement position, for UDE to have sold products to an entity that it knew was bringing those accused products into the US, and for UDE to have actively promoted that entity for the purpose of

[00:09:31] Speaker 05:
of marketing UDE products that satisfies the elements of inducement infringement.

[00:09:38] Speaker 04:
Your Honor, the- And can you- this is, I guess, getting back to Judge Post's, tying this to the district court.

[00:09:46] Speaker 04:
What specifically, and if you know the page, on what page did the district court address what we've just been talking about, these particular- So the district court, in analyzing these invoices,

[00:10:01] Speaker 05:
seemed to focus strictly on whether or not these invoices constitute direct infringement by UDP and did not relate.

[00:10:11] Speaker 04:
And what did the court say about that?

[00:10:14] Speaker 04:
The court based on page?

[00:10:16] Speaker 05:
I'm sorry, Your Honor.

[00:10:18] Speaker 05:
I'd be happy to submit a letter.

[00:10:22] Speaker 05:
The district court basically said that

[00:10:26] Speaker 05:
The built-to entity being in the US is not dispositive.

[00:10:32] Speaker 05:
That ship-to information is also not dispositive, given the transfer in Hong Kong.

[00:10:40] Speaker 05:
And that title transferred and so forth in Hong Kong.

[00:10:43] Speaker 05:
So that UDE is not liable.

[00:10:46] Speaker 05:
for direct infringement for these invoices, that these invoices do not show UDE's direct infringement.

[00:10:54] Speaker 05:
Given that these invoices show the accused UDE products did end up in the US, that this shows direct infringement by somebody.

[00:11:03] Speaker 05:
And that's all that's necessary in the context of inducement infringement.

[00:11:07] Speaker 03:
And what's the JA site for the website you're talking about?

[00:11:10] Speaker 05:
The UDE website?

[00:11:12] Speaker 05:
Yeah.

[00:11:14] Speaker 05:
I have the website printouts.

[00:11:21] Speaker 05:
Apologies, Your Honor.

[00:11:36] Speaker 05:
I believe it's page 1757 of the record, where UDE lists this particular entity as UDE's U.S.

[00:11:48] Speaker 05:
district event.

[00:11:51] Speaker 05:
Now, Your Honor, the record also shows that U.S.-based EMS companies work with UDE to develop material, requires planning documents.

[00:12:02] Speaker 05:
And this is shown in page

[00:12:05] Speaker 05:
3,022 of the record, where this particular US-based EMS company working with UTE developed this material requirements planning document.

[00:12:18] Speaker 05:
And it shows specific US locations in California where UTE's accused products would be sent.

[00:12:28] Speaker 05:
This is the kind of document, Your Honor, that can only be generated with UTE's participation and involvement.

[00:12:36] Speaker 05:
It is not credible for you to say it has no knowledge of its accused products entering the US market given this materials requirements planning document.

[00:12:52] Speaker 03:
I'm sorry, you're pointing me to JA3022?

[00:12:55] Speaker 05:
Yes.

[00:13:00] Speaker 03:
And where's the smoking down here?

[00:13:03] Speaker 05:
Your Honor, if you could look at the last three rows on that page.

[00:13:08] Speaker 03:
OK.

[00:13:09] Speaker 05:
And under facility, it shows the city and state in the United States.

[00:13:20] Speaker 03:
Under facility.

[00:13:23] Speaker 03:
Oh, towards the bottom of the chart.

[00:13:26] Speaker 03:
Yes, the last three rows.

[00:13:33] Speaker 05:
In the page preceding, it lists the products that are sold to this particular EMS company in the US.

[00:13:43] Speaker 03:
Did you present this to the district court?

[00:13:49] Speaker 03:
Yes.

[00:13:50] Speaker 03:
Or is this the one where the district court said this wasn't really presented to him?

[00:14:02] Speaker 05:
I don't have the page reference, Your Honor.

[00:14:07] Speaker 05:
But as Your Honor knows, I came to this case kind of late.

[00:14:14] Speaker 01:
Well, the difficulty I'm having in it, your time's almost up.

[00:14:17] Speaker 01:
So I don't want to invite you to spend another 20 minutes doing this.

[00:14:21] Speaker 01:
But where I started was we've got almost 100 page district court opinion.

[00:14:27] Speaker 01:
And your critique here is that he didn't

[00:14:30] Speaker 01:
have the proper inferences, and he reweighed the evidence, and he resolved factual disputes.

[00:14:36] Speaker 01:
And so it would be helpful for me if you could tie what he said to some of the stuff you've talked about today so we could see where your view is that his error, he didn't appropriately deal with this evidence.

[00:14:53] Speaker 01:
So where are the corresponding portions of his opinion where he addresses these?

[00:15:01] Speaker 05:
Your Honor, my apologies.

[00:15:03] Speaker 05:
I don't have the specific page reference from the district court opinion.

[00:15:07] Speaker 05:
And I would be happy to submit a supplemental.

[00:15:11] Speaker 01:
Well, maybe you can come back and have that, if it doesn't distract you from listening to the other.

[00:15:18] Speaker 05:
OK.

[00:15:20] Speaker 05:
And in addition to the issue of whether the invoices

[00:15:26] Speaker 05:
Your Honor, I see that I'm out of time.

[00:15:29] Speaker 01:
OK.

[00:15:29] Speaker 01:
I will just make one other.

[00:15:30] Speaker 01:
It says, I think we can ask Red when they get out here.

[00:15:33] Speaker 01:
But I think in their brief, they say that the documents that you've just discussed with Judge Chen weren't in the record, were not presented to the district court.

[00:15:45] Speaker 01:
Do you have any information about that?

[00:15:49] Speaker 01:
The invoices were certainly... No, I'm talking about the stuff that Judge Chen was just looking to.

[00:15:56] Speaker 05:
3021... We can ask Brett about it.

[00:16:02] Speaker 01:
Maybe they can confirm it if you're not sure.

[00:16:04] Speaker 01:
Thank you, Your Honor.

[00:16:05] Speaker 01:
Thank you.

[00:16:06] Speaker 01:
Will we start some rebuttal time?

[00:16:10] Speaker 01:
The other side.

[00:16:11] Speaker 02:
May it please the court?

[00:16:14] Speaker 02:
I am John Scherrer of Perkins Coie.

[00:16:15] Speaker 02:
And let me just give you that reference that Judge Shen requested.

[00:16:19] Speaker 02:
It's in appendix 63.

[00:16:21] Speaker 02:
Note 21 refers to Judge Benitez's noting that the evidence that was presented was not before him.

[00:16:30] Speaker 02:
And so he did not have the opportunity to consider it.

[00:16:33] Speaker 02:
But let me just turn back to those invoices, because those are important.

[00:16:37] Speaker 02:
Because it shows, actually, the lack of evidence that

[00:16:41] Speaker 02:
Hulse put forward to prove its case and why Judge Benitez provided a thorough opinion, finding that none of the evidence that was presented was sufficient to overcome the summary judgment motion.

[00:16:53] Speaker 02:
And those invoices, as Judge Sharonto pointed out, indicate what's clear.

[00:16:58] Speaker 02:
And I want to refer you to, Judge Benitez provided a nice table as some of your judgment around Appendix 116 to 118, where he tabulates all the shipments from and to by UDE, as well as the forwarding address and the trade terms by which those invoices reflected.

[00:17:16] Speaker 02:
And what he made clear was that all shipments by UDE were by truck.

[00:17:23] Speaker 02:
from Hong Kong to Hong Kong.

[00:17:25] Speaker 02:
And clear across all 115 invoices was that UDE shipped from and delivered to all the UQ's products to Hong Kong.

[00:17:35] Speaker 02:
And from there, the customer, it's unclear where the customer, what they did with those products.

[00:17:44] Speaker 02:
Because from those invoices, what we have is nothing in the record what those invoices mean.

[00:17:51] Speaker 02:
because Paul's chosen not to obtain further information on those invoices.

[00:17:55] Speaker 02:
But based on the fair reading of those invoices, underneath the forwarding information of the forwarder, you have is shipped to the forwarder, which is clear from the evidence that the products from UD were shipped to the forwarder in Hong Kong.

[00:18:10] Speaker 02:
And as Judge Toronto pointed out, the address there, a fair reading, is that is simply the address of the forwarder, not that the forwarder shipped

[00:18:19] Speaker 02:
Not that UD shipped its products to that forwarding address.

[00:18:24] Speaker 02:
What's clear in the record, and as Judge Bernies held, is that all products shipped by UD was from Hong Kong to Hong Kong.

[00:18:33] Speaker 04:
What about appendix page 1757, which lists, this doesn't seem to be yellow, lists as USA Distribution A on the East Coast, the same company that appears in 2961 as the forwarder?

[00:18:55] Speaker 02:
Sure, Your Honor.

[00:18:55] Speaker 02:
Now, first of all, this was the first time that argument was presented.

[00:18:59] Speaker 02:
It was never presented before judgment day.

[00:19:01] Speaker 02:
It was never presented in any of the briefs.

[00:19:04] Speaker 02:
That simply indicates from the website that MCN is a distributor.

[00:19:10] Speaker 02:
It does nothing more.

[00:19:11] Speaker 02:
It does not connect the dots between what products UDE may supply to the distributor,

[00:19:18] Speaker 02:
Because UD supplies many products beyond ICMs, let alone the accused multi-gig 2xN ICMs.

[00:19:27] Speaker 02:
And so there's a failure to connect the dots.

[00:19:29] Speaker 02:
What we have on the invoice, what was shown I think in appendix 2961, was that accused ICMs were delivered to MCN in Hong Kong.

[00:19:43] Speaker 02:
What MCN did with those,

[00:19:45] Speaker 02:
We don't know.

[00:19:46] Speaker 02:
It's not in the records.

[00:19:47] Speaker 02:
What we have is a reference on UD's website that MCN is a distributor.

[00:19:52] Speaker 04:
And you don't think it is a available inference to the finder of fact that when you give this forwarding company these goods and you list them as your USA distributor?

[00:20:13] Speaker 04:
that in the absence of anything else, the jury couldn't find that you knew where those things were destined for?

[00:20:23] Speaker 02:
And that's with respect to inducement?

[00:20:28] Speaker 04:
Yes, both halves of inducement.

[00:20:31] Speaker 04:
At least two of the three halves of inducement.

[00:20:33] Speaker 02:
I think it takes more of a leap of faith.

[00:20:35] Speaker 02:
It's more of a speculation which products

[00:20:38] Speaker 02:
did the distributor actually sell in the US?

[00:20:41] Speaker 02:
Because there's no evidence that MCN sold any UD products, other than a reference on a website that the distributor.

[00:20:47] Speaker 02:
There is no evidence in the record that MCN sold any UD products, let alone the accused UD products.

[00:20:53] Speaker 02:
What's in the record is an invoice of accused ICMs delivered to MCN in Hong Kong.

[00:21:01] Speaker 02:
That's it.

[00:21:02] Speaker 02:
That is, I think, speculation.

[00:21:05] Speaker 02:
or a speculative inference that a jury would have to make.

[00:21:09] Speaker 02:
If there was evidence, perhaps, that MCN actually sold accused ICMs in the US, that there could be an inference.

[00:21:18] Speaker 04:
So I take your point that this

[00:21:22] Speaker 04:
I guess, a UDE web page, and in particular, the piece that's at A1757 that says MCN electronics on the East Coast is the USA distribution, was not relied on.

[00:21:37] Speaker 04:
And so maybe we can ignore it.

[00:21:39] Speaker 04:
But let's assume we're going to attend to that.

[00:21:41] Speaker 04:
Just that assumption.

[00:21:43] Speaker 02:
Yes, Your Honor.

[00:21:44] Speaker 04:
Really, that's not enough to support an inference that what was given to MCN

[00:21:51] Speaker 04:
in Hong Kong, MCN being the US distributor, was distributed in the US?

[00:22:01] Speaker 02:
I think it's not a fair inference.

[00:22:04] Speaker 02:
I think it causes speculation, because there's no evidence what MCN actually distributes.

[00:22:09] Speaker 02:
Just because they receive goods, we have no evidence that MCN only distributes in the United States.

[00:22:15] Speaker 04:
Do we have contrary evidence?

[00:22:17] Speaker 02:
Well, there's simply no evidence other than that MCN is on UD's website.

[00:22:21] Speaker 02:
We don't have any evidence that that is in fact correct.

[00:22:24] Speaker 02:
That is in fact true that MCN is a distributor.

[00:22:27] Speaker 03:
Could you be saying that

[00:22:30] Speaker 03:
We know perhaps that UDE is distributing some products through MCM on the East Coast of the United States, but we don't know if it's the accused products.

[00:22:41] Speaker 02:
If you hold that the UDE website is, in fact, truthful,

[00:22:47] Speaker 02:
Because there was no questions asked about the website pages about, are these current distributors?

[00:22:53] Speaker 02:
Do they in fact distribute UD products?

[00:22:55] Speaker 02:
Do they in fact distribute 2xN multi-gig?

[00:22:59] Speaker 02:
There was no questions asked of any deposition, and there's definitely no evidence of that in the record.

[00:23:05] Speaker 02:
So what we have is, MCN is identified as a distributor on a website.

[00:23:11] Speaker 02:
We don't know if, in fact, that is the correct website.

[00:23:13] Speaker 02:
We don't know, in fact, what it distributes.

[00:23:15] Speaker 02:
And then we have an invoice in the case concerning accused ICMs being delivered to MCN in Hong Kong.

[00:23:23] Speaker 02:
We have no information about what MCM does beyond if they distribute elsewhere in the world.

[00:23:29] Speaker 02:
There's nothing in the record.

[00:23:30] Speaker 02:
That is the problem in this case.

[00:23:32] Speaker 02:
There is not sufficient evidence presented by Pauls to oppose a summary judgment ruling.

[00:23:38] Speaker 02:
And whether it's a fair inference, I don't think it is.

[00:23:41] Speaker 02:
But ultimately, your honors will make that decision.

[00:23:44] Speaker 02:
Because I think there's too many inferences you have to make in order to reach the conclusion that the products as shown in appendix 2963 that were delivered to MCM in Hong Kong actually made its way to the United States.

[00:24:02] Speaker 03:
Do you know what ship two means in those invoices?

[00:24:05] Speaker 02:
The ship to and from the boarding address, there is no evidence what that means.

[00:24:09] Speaker 02:
Judge Benitez pointed that out.

[00:24:11] Speaker 02:
I see.

[00:24:11] Speaker 03:
So if I'm asking you, do you know what that means?

[00:24:14] Speaker 02:
I do not know what that means.

[00:24:15] Speaker 02:
My understanding based on my personal experience, what's up at the front, UD ships from and ships to by truck from Hong Kong to Hong Kong in every single invoice.

[00:24:27] Speaker 02:
The boarding information

[00:24:29] Speaker 02:
My conclusion is consistent with Judge Toronto's in the sense that identifies basically who the forwarder is and what their address is.

[00:24:37] Speaker 02:
Not that that's the location that the forwarder actually ships.

[00:24:40] Speaker 02:
The products that it receives in Hong Kong to where it ultimately decides to go.

[00:24:43] Speaker 02:
There's no evidence what these customers, where those customers sent to if they'd sent those products anywhere.

[00:24:50] Speaker 02:
There's no evidence in the record.

[00:24:52] Speaker 02:
That's the problem in this case.

[00:24:55] Speaker 02:
And I had some other issues to discuss about, but it was not brought up in the opening argument.

[00:25:02] Speaker 02:
So I don't find a need to present those.

[00:25:04] Speaker 02:
Unless your honors have questions, I will concede my time.

[00:25:07] Speaker 03:
I think there was a personal attorney declaration or two that asserted that they purchased a product in the United States containing

[00:25:20] Speaker 03:
The UDEICM?

[00:25:23] Speaker 02:
Yes, Your Honor.

[00:25:24] Speaker 02:
So there was, in opposition to the summary judgment motion followed by UD, Paul provided a declaration from his trial counsel, Mr. Kuczynski, in which he similarly stated a mere allegation that I purchased, with no supporting evidence of that, but I purchased a Juniper switch and a Cisco switch.

[00:25:43] Speaker 02:
And as we noted in our briefs that the- I think it says, I purchased it in the United States.

[00:25:49] Speaker 02:
Yes, Your Honor.

[00:25:49] Speaker 04:
Which could mean several different things, but it does say that.

[00:25:53] Speaker 02:
It does say that.

[00:25:54] Speaker 02:
So set aside the fact whether that evidence is admissible, the Murrah allegation is insufficient, I believe, to create a trouble issue, the fact that he purchased it in the United States.

[00:26:09] Speaker 02:
as whether there was an offer for sale or sale or even an importation of the product into the United States.

[00:26:16] Speaker 02:
When then you look at the product, the Juniper switch... I'm sorry, did you just finish that point?

[00:26:23] Speaker 04:
Yes, Your Honor.

[00:26:24] Speaker 04:
How is it that if the declarants assertion is admissible, would you assume that that is insufficient as a matter of law to indicate that

[00:26:38] Speaker 04:
It was sold to him in the United States.

[00:26:41] Speaker 02:
There was no indication in the allegation that it just said, I purchased Cisco Juniper Switch in the United States.

[00:26:48] Speaker 02:
From whom?

[00:26:49] Speaker 02:
That would purportedly be the direct infringer.

[00:26:51] Speaker 02:
There was no indication who that was.

[00:26:53] Speaker 02:
For what price?

[00:26:54] Speaker 04:
If he purchased it, he purchased it from somebody, that person would be called the seller.

[00:26:59] Speaker 04:
Assume in the United States means the seller was selling it in the United States.

[00:27:06] Speaker 02:
I guess I'm more baffled by the term purchase.

[00:27:12] Speaker 02:
What does it mean?

[00:27:13] Speaker 02:
There's no indication I purchased for X amount of dollars.

[00:27:16] Speaker 02:
There's no indication I purchased from X.

[00:27:19] Speaker 02:
whoever it was, this switch.

[00:27:22] Speaker 02:
There is nothing other than this more allegation of I purchased in the United States.

[00:27:26] Speaker 02:
That's it.

[00:27:27] Speaker 02:
And it came from an attorney that was never identified as a witness in any initial disclosure statement.

[00:27:32] Speaker 04:
I understand the admissibility point.

[00:27:34] Speaker 04:
I understand the point that he might have bought it from somebody who UDE had no knowledge that had ever acquired these things.

[00:27:47] Speaker 04:
The non-direct infringement part of the inducement might not be established.

[00:27:53] Speaker 04:
But I'm a little, when you put aside admissibility and focus just on whether somebody sold this thing to this guy in the United States, I'm having some trouble understanding how there's a problem with that.

[00:28:11] Speaker 02:
Because I don't believe, I don't know what purchase means in this context.

[00:28:19] Speaker 02:
Get the fact that there is no supporting evidence.

[00:28:22] Speaker 02:
To me, it's not sufficient to indicate what purchase meant.

[00:28:28] Speaker 02:
No invoice, no record of it.

[00:28:29] Speaker 02:
It's just a bare assertion, a conclusion.

[00:28:32] Speaker 02:
And as we all know, we have this future.

[00:28:34] Speaker 02:
But what a sale means.

[00:28:35] Speaker 01:
I don't understand.

[00:28:35] Speaker 01:
What could purchase mean other than you exchanged something for something and get the good?

[00:28:42] Speaker 01:
Would bought be better?

[00:28:45] Speaker 02:
Well, my struggle would be, well, on optors, for there to be a sale, offer acceptance and adequate consideration.

[00:28:55] Speaker 02:
So at the very least, what was the adequate consideration that was conveyed to indicate to at least this attorney

[00:29:01] Speaker 02:
who's advocating for his client that they would constitute a purchase.

[00:29:05] Speaker 02:
I don't have anything of an offer except, or more importantly, indication of what advocates to consideration for this attorney to reach the conclusion that a purchase was made in the United States.

[00:29:14] Speaker 01:
The district court doesn't rely on anything else.

[00:29:18] Speaker 02:
No, you are not.

[00:29:19] Speaker 02:
The district court more focused on his concerns, whether this was a misspell coming from an attorney that was never disclosed as a witness.

[00:29:26] Speaker 02:
I'm making an argument, even if you consider it, setting aside the miscibility issues, what do you have?

[00:29:32] Speaker 02:
You still have issues about whether this actually is sufficient evidence to indicate that there was, in fact, an importation or sale in the United States.

[00:29:40] Speaker 02:
Setting that aside, then, what is actually shown by these products?

[00:29:43] Speaker 02:
With the Juniper Switch, as we said in our brief, it indicates that there is a quantia chip.

[00:29:48] Speaker 02:
And as we indicated in our brief, Paul never took into account the issue of multi-sourcing.

[00:29:55] Speaker 02:
There's no in what we have in their expert expert opinion indicated, hey, this this particular ICM switch in the Juniper switch looks like doesn't look like the accused UDE ICM.

[00:30:07] Speaker 02:
In fact, it looks like a competitor's ICM, Molex.

[00:30:11] Speaker 04:
Doesn't one of the either the Cisco or the Juniper item purchase.

[00:30:19] Speaker 04:
Is there a picture in the record with of the unit with a

[00:30:24] Speaker 04:
UDE code?

[00:30:28] Speaker 02:
You would be referring to the Cisco switch, Your Honor.

[00:30:31] Speaker 02:
Okay.

[00:30:31] Speaker 02:
Yes.

[00:30:32] Speaker 04:
So forget about the Juniper one.

[00:30:33] Speaker 02:
Sure.

[00:30:35] Speaker 02:
You're referring to that one where there's simply a picture.

[00:30:37] Speaker 02:
The problem with that one, it goes back.

[00:30:39] Speaker 04:
Simply a picture?

[00:30:40] Speaker 04:
That's not bad.

[00:30:40] Speaker 02:
Well, there's a picture, but it goes back to all the other issues, the immiscibility of the declaration, the sufficiency of the statement, but more importantly also, well, the immiscibility of the sales record concerning Cisco.

[00:30:53] Speaker 02:
If you look at the tables produced from Cisco to Pulse,

[00:31:00] Speaker 02:
There's no deposition taken of Cisco.

[00:31:03] Speaker 02:
There's no basis for which that table could be admitted into evidence.

[00:31:07] Speaker 02:
And so what we have is, and judgment is concluded, there is no basis based on the pictures alone that this constitutes a sale of a product in the United States.

[00:31:16] Speaker 02:
And I'm done with your honor.

[00:31:18] Speaker 02:
You're the time I have allotted.

[00:31:20] Speaker 01:
Any further questions?

[00:31:27] Speaker 01:
Thank you.

[00:31:27] Speaker 01:
Will we store three minutes?

[00:31:30] Speaker 05:
Your Honors, so with regard to the page 3022 of the record, Judge Bonita said he didn't consider it because it was not attached to the seal record.

[00:31:42] Speaker 05:
But apart from what we've discussed with regard to the invoices in the actual units,

[00:31:51] Speaker 05:
The record shows that UDE admitted multiple times that it sends the accused products into the US, or at least there is that possibility.

[00:32:01] Speaker 05:
The testimony of Mr. Chris Chen, he admitted multiple times that UDE sends the accused products, or there's a possibility of UDE sending the accused products into the US for the purposes of providing samples.

[00:32:15] Speaker 05:
And those admissions can be found

[00:32:17] Speaker 05:
on pages 16, 19, and 31.

[00:32:21] Speaker 05:
I'm sorry.

[00:32:23] Speaker 03:
This UDE witness confessed to sending these accused products into the United States?

[00:32:31] Speaker 03:
He admitted to the possibility of it, yes, Your Honor.

[00:32:33] Speaker 03:
The possibility.

[00:32:34] Speaker 01:
Yes, please.

[00:32:36] Speaker 01:
What does that mean?

[00:32:37] Speaker 01:
I don't know, but it's possible?

[00:32:40] Speaker 05:
He said, yes, there is a possibility of it.

[00:32:42] Speaker 05:
And this was also further confirmed in the wrong response at UDE sites in its briefing.

[00:32:47] Speaker 05:
And that wrong response is, I believe, on page 2111 through 12 of the record, where UDE admits, in rare instances, it may have knowledge of its products entering the United States.

[00:33:03] Speaker 00:
And these testimonies consistently- Was there a connection drawn between products and the accused products?

[00:33:11] Speaker 05:
So the first instance in which Mr. Chen made the admission, the question was not focused on the accused products, but we would suggest, Your Honor, his answer makes clear.

[00:33:22] Speaker 05:
His answer was confined to accused products.

[00:33:25] Speaker 05:
In the second instance, the Q&A did pertain to accused products.

[00:33:30] Speaker 05:
And the two instances are at pages 16-19, at page 30, line 8 through

[00:33:39] Speaker 05:
page 31, line 2 of that deposition transcript, and then page 3141 of the record, starting at page 46, line 2 through 22.

[00:33:55] Speaker 01:
Almost at the end.

[00:33:56] Speaker 01:
Any wrap up comments?

[00:34:00] Speaker 05:
I would further note that UDE's admissions are consistent with the testimony of a US-based EMS company, who acknowledged that in every instance, their customers would demand samples.

[00:34:16] Speaker 03:
Did you depose any of the EMS company employees?

[00:34:20] Speaker 05:
This one, yes.

[00:34:21] Speaker 05:
This EMS deposition is at page 3215 of the record.

[00:34:28] Speaker 05:
at page 52 of the deposition Beginning line 24 that person say we incorporate UDE ICMs into our products and ship them to the United States for distribution They acknowledge working with UDE I Don't know that his deposition specifically connected the United States component your honor But

[00:34:57] Speaker 03:
Do you have any testimony from any of these third party manufacturer suppliers that say we incorporate UDE products into our products and then ship those into the United States for distribution?

[00:35:15] Speaker 05:
We have testimony from this particular EMS company, Your Honor, that

[00:35:21] Speaker 05:
acknowledges they incorporate UDE products into theirs.

[00:35:26] Speaker 05:
Not the accused products, just products.

[00:35:28] Speaker 05:
The accused products, excuse me.

[00:35:31] Speaker 05:
And there's production from one of the branding companies that shows, so the record shows that

[00:35:49] Speaker 05:
UDE's global marketing manager correlated the product number for this EMS company with UDE's accused product number.

[00:35:58] Speaker 05:
And that EMS company, in turn, sells to a brand company in the US.

[00:36:04] Speaker 03:
Does Molex use that same ID number?

[00:36:07] Speaker 03:
I'm sorry?

[00:36:08] Speaker 03:
Does Molex use that same ID number?

[00:36:12] Speaker 05:
I do not know, Your Honor.

[00:36:14] Speaker 05:
And that, Your Honor, is pointing to the multi-source issue, which I think

[00:36:19] Speaker 05:
There's a previous step, which is, number one, does Molex use the same ID number?

[00:36:27] Speaker 05:
There's nothing here.

[00:36:27] Speaker 03:
Your expert witness confessed that it did.

[00:36:30] Speaker 03:
That was part of the testimony.

[00:36:36] Speaker 03:
2788 to 89.

[00:36:43] Speaker 03:
OK.

[00:36:48] Speaker 03:
I wasn't aware of that, Your Honor.