[00:00:00] Speaker 00:
Her next case on the docket is case number 21-2320, Salazar versus 18T Mobility.

[00:00:10] Speaker 00:
Mr. Kehane, whenever you're ready, please proceed.

[00:00:13] Speaker 00:
Did I say your name correctly?

[00:00:15] Speaker 02:
Yes, Your Honor.

[00:00:16] Speaker 02:
Great.

[00:00:16] Speaker 02:
Thank you.

[00:00:22] Speaker 03:
Good morning.

[00:00:24] Speaker 03:
May it please the court?

[00:00:29] Speaker 03:
My name is Darius Kehani.

[00:00:31] Speaker 03:
I represent the patent owner and the plaintiff in this case, Joe Andrew Salazar, on this appeal.

[00:00:41] Speaker 03:
The issue here on appeal is directed to one basic principle that is precedent in this court.

[00:00:55] Speaker 03:
It comes out of the Baldwin case.

[00:00:59] Speaker 03:
where this court has noted that there are very limited, extremely limited exceptions.

[00:01:06] Speaker 03:
And unless there is an unmistakable indication in the specification or the prosecution history or the language of the claims, the language A component

[00:01:26] Speaker 03:
means one or more components.

[00:01:28] Speaker 00:
Do you think that the district court interpreted a microprocessor to be a single microprocessor?

[00:01:35] Speaker 00:
Because I didn't necessarily read the construction that way.

[00:01:41] Speaker 03:
No, Your Honor.

[00:01:42] Speaker 03:
The district court interpreted a microprocessor to mean one or more microprocessors.

[00:01:49] Speaker 03:
However, it interpreted the later definite article said microprocessor

[00:01:57] Speaker 03:
not to go back and refer to a one or more, but rather to a single microprocessor.

[00:02:03] Speaker 00:
I think it may have said one or more.

[00:02:05] Speaker 00:
But that would mean, let me give you an example, a microprocessor and say that was two microprocessors.

[00:02:11] Speaker 00:
Then it says said microprocessor performing function x. It would have to be at least one.

[00:02:18] Speaker 00:
It could be the two microprocessors that both perform the later function.

[00:02:23] Speaker 00:
There has to be at least one.

[00:02:25] Speaker 00:
You can't mix and match.

[00:02:28] Speaker 00:
I think what the district court was saying is you can't, even if there's multiple microprocessors in the first reference to a microprocessor.

[00:02:34] Speaker 00:
When you later have the same language, said microprocessor, the microprocessor, performing different functions, it can't be that you can say, well, this is one microprocessor does this, and one microprocessor does that, kind of like the dog analogy that was in the district court's opinion.

[00:02:51] Speaker 00:
If you have a dog.

[00:02:53] Speaker 00:
that fetches and sits.

[00:02:56] Speaker 00:
You can't satisfy that by having one dog that fetches and one dog that sits.

[00:03:03] Speaker 03:
Well, it depends on the structure of the language.

[00:03:09] Speaker 03:
For example, in Reevarma, where you had a preamble, and in convolve, where you had a preamble that connected, for example, in convolve, a user interface directly connected to

[00:03:23] Speaker 03:
linked to the processor, there was a specific recitation of a relationship and a limitation.

[00:03:32] Speaker 03:
Whereas in Reco and in, for example, 01 Communique, where you have a group, where the Baldwin rule in progeny say you have a group of items, A equals one or more, if

[00:03:48] Speaker 03:
Any subsequent reference back to the A equals one or more is only limited to a single item that subsumes and renders meaningless the principle involved.

[00:03:59] Speaker 03:
So here in Salazar's claims, we have a communication command and control and sensing system in the preamble described, comprising.

[00:04:09] Speaker 03:
So the dog is a communication command control and sensing system in Salazar's what we argue.

[00:04:16] Speaker 03:
It's not a microprocess.

[00:04:18] Speaker 03:
The preamble of the claim speaks to a communication command control and sensing system comprising then a microprocessor that is coupled to a microprocessor that has the following functions.

[00:04:30] Speaker 03:
So all these functions that come after, if you say that a microprocessor is a single microprocessor that has to do all these things, then you really don't have one or more microprocessors.

[00:04:45] Speaker 03:
You just have a single microprocessor.

[00:04:48] Speaker 03:
And it renders the rule meaningless.

[00:04:51] Speaker 03:
In the case of both Inri Varma and Convolve that was argued, the language was very specific where it was defining the invention.

[00:05:05] Speaker 03:
For example, statistical analysis had to be connected to two investments specifically, or that the user interface had to be connected to the processor.

[00:05:14] Speaker 03:
That's how the invention was described.

[00:05:17] Speaker 03:
came comprising and then had these various limitations.

[00:05:22] Speaker 03:
So that's the distinction we draw here is that if only one microprocessor, as your honor described, would have to do, if one microprocessor had to do all these other functions,

[00:05:37] Speaker 03:
then a microprocessor, meaning one or more microprocessors, would be meaningless.

[00:05:42] Speaker 03:
Because simply to be one microprocessor, those additional microprocessors would have no additional meaning, because one microprocessor would have to do everything that was recited in the claims.

[00:05:52] Speaker 00:
But isn't that the drafter's responsibility?

[00:05:55] Speaker 00:
If the claims of the word said microprocessor for creating a memory device coupled to said microprocessor, and the uniser interface coupled to said microprocessor, if it was

[00:06:07] Speaker 00:
wanted, if it was desired to be written in a way where it wasn't referring back to at least one of the same microprocessors as referred to above, wasn't there some responsibility on the part of the patent order to write it that way?

[00:06:21] Speaker 03:
The court's precedent that says in the drafting that A equals one or more means you have a plurality now.

[00:06:29] Speaker 03:
And now when you refer back to that group, you don't now relinquish or narrow.

[00:06:33] Speaker 03:
You don't go now from a plural to a single.

[00:06:37] Speaker 03:
So when you say said microprocessor, we're saying that if a microprocessor equals one or more microprocessors, and you say said microprocessor has various functions, you mean any one of that group of one or more has those functions.

[00:06:54] Speaker 03:
I mean, this claim, if you take this narrow construction, Your Honor,

[00:06:59] Speaker 03:
The drafter, the inventor, which you would have to say every smartphone has dozens of microprocessors possibly in them.

[00:07:08] Speaker 03:
You would limit this patent, where in the specification it speaks to so many microprocessors, to one microprocessor would have to do everything.

[00:07:17] Speaker 03:
And that would not be a reasonable construction, what we have here in terms of the scope of the invention.

[00:07:22] Speaker 03:
And so we have this precedent, which this court has applied in the way we're describing.

[00:07:29] Speaker 03:
Even this district court in the case Freeney applied the same principle, the same way that we're arguing it should be applied.

[00:07:39] Speaker 03:
this court has in, as I said, O1 communique, it has in RECCO.

[00:07:45] Speaker 03:
It says that you don't have to have the same one of the A to do all the functions, and that any one of the group can do these functions.

[00:07:55] Speaker 03:
Because we don't.

[00:07:55] Speaker 00:
What about, I just want to ask one more question about Varma, which is the case that had the dog analogy.

[00:08:02] Speaker 00:
The limitation at issue there was not where the first use of the phrase was in the preamble before the word comprise it.

[00:08:10] Speaker 03:
That is correct.

[00:08:11] Speaker 03:
However, there was a specific linking that every investment, every analysis had to be connected to two investments.

[00:08:19] Speaker 03:
And it went on.

[00:08:20] Speaker 03:
And if you look at the later claims, it always connected those two together as was recited.

[00:08:26] Speaker 03:
Whereas in our case here, it's a communication command control and sensing system.

[00:08:32] Speaker 03:
that has comprised comprising means that and then as a microprocessor that has said functions a microprocessors said functions and if the principal again if if a microprocessor cannot be one or more has to be a single one then the ball rule has no has no place here okay I'm you are in your time would you like to preserve that yes thank you thank you mr. Landis

[00:09:03] Speaker 02:
Good morning, Your Honors.

[00:09:05] Speaker 02:
May it please the Court, Todd Landis on behalf of defendants and cross-appellates.

[00:09:11] Speaker 02:
Your Honors, the jury verdict should stand this case for two reasons.

[00:09:16] Speaker 02:
First, district court's construction of the microprocessor term was correct.

[00:09:21] Speaker 02:
And second, even if it was incorrect, that error was harmless because there were other grounds on which this jury was required to find non-infringement on behalf of the defendants.

[00:09:33] Speaker 02:
Even if neither of those apply, this present case should have never gone to the jury because plaintiff's claims were barred by either claim preclusion, the Kessler doctrine, or both.

[00:09:45] Speaker 02:
I'll address each of these in turn.

[00:09:47] Speaker 00:
I want to ask you, if this court were to agree with the district court's claim construction, would we have to reach the cross-appeal?

[00:09:56] Speaker 00:
Would we have to reach the Kessler issue?

[00:09:58] Speaker 00:
No, Your Honor.

[00:10:00] Speaker 02:
If you found that the court's construction was correct,

[00:10:02] Speaker 02:
then that would be the end of this story.

[00:10:04] Speaker 02:
The jury found non-infringement in this case.

[00:10:07] Speaker 02:
And that would be the only thing that has been appealed by the plaintiff.

[00:10:11] Speaker 00:
But we would also have to address your argument that you didn't fail to preserve your rule 50 anticipation argument, right?

[00:10:19] Speaker 02:
Yes, Your Honor.

[00:10:20] Speaker 02:
Although, Your Honor, I'm not certain that you would have to reach that.

[00:10:23] Speaker 02:
I mean, the jury verdict would stand.

[00:10:25] Speaker 02:
I think you could not reach that at all.

[00:10:28] Speaker 02:
And the jury verdict could still stand based upon the non-infringement finding by itself.

[00:10:33] Speaker 00:
I think under a precedent, we might have to consider validity.

[00:10:36] Speaker 00:
We can't just leave validity out there.

[00:10:38] Speaker 00:
under the Supreme Court president.

[00:10:42] Speaker 00:
So unless you're right now waiving that issue or saying that we don't have to, in your view, you're going to waive that issue on appeal, then we have to address it.

[00:10:53] Speaker 02:
Yes, Your Honor.

[00:10:53] Speaker 02:
I mean, if we have to address it, we have to address it.

[00:10:55] Speaker 02:
I think that that issue we're going to submit on the papers for that argument.

[00:11:02] Speaker 02:
I think the real heart of this issue is the microprocessor term and how it was construed, properly construed.

[00:11:08] Speaker 02:
and to address a few of the issues that I heard raised by the court and by my colleague, the district court found that there was a connection between the claim language and how a microprocessor was gone in the Varma case.

[00:11:27] Speaker 02:
And when you look at the claim language itself, I think what's important is the first sentence out of the microprocessor term.

[00:11:34] Speaker 02:
That sentence is a microprocessor for generating a plurality of control signals used to operate said system.

[00:11:44] Speaker 02:
Said system refers back to the preamble, the communication, command, control, and sensing system.

[00:11:51] Speaker 02:
So first, when my colleague over here says there is no connection to the preamble, that's not true.

[00:11:57] Speaker 02:
The very first sentence in the microprocessor term connects the preamble to the microprocessor term.

[00:12:03] Speaker 02:
More importantly, when you look at the phrasing of that sentence, it looks like Varma.

[00:12:09] Speaker 02:
In Varma, you had a statistical analysis request corresponding to two or more selected investments.

[00:12:16] Speaker 02:
That could have been written as a statistical analysis request for two or more investments.

[00:12:23] Speaker 02:
We have the same thing here, a microprocessor for generating a plurality of control signals used to operate said system.

[00:12:34] Speaker 02:
What the plaintiff would like to do is exactly what the court in Varma warned against.

[00:12:39] Speaker 02:
They want to negate the language that comes after A. They want to negate the for language and everything else that comes after A. But when you continue on in the claim, it gets, I think, even more interesting.

[00:12:55] Speaker 02:
Because when we get to the first said, now it doesn't say said microprocessor for creating.

[00:13:01] Speaker 02:
It says said microprocessor creating.

[00:13:05] Speaker 02:
That language, to me, indicates that you're referring to the same microprocessor that was for generating the plurality of control signals.

[00:13:14] Speaker 02:
And if you follow this through the claim, you will see that each time the said microprocessor is referred to with respect to another function, there's no longer for.

[00:13:24] Speaker 02:
It's always just the ing gerund of that word, creating, generating.

[00:13:33] Speaker 02:
The only exception to that would be in the memory device where you have retrieved by the microprocessor, said microprocessor.

[00:13:42] Speaker 02:
The other problem with plaintiff's proposal of this construction is what do we do when we get to the couplings?

[00:13:48] Speaker 02:
We have a memory device coupled to said microprocessor.

[00:13:52] Speaker 02:
Under plaintiff's construction, as I understand it, is that said microprocessor the microprocessor for creating?

[00:14:00] Speaker 02:
The microprocessor creating?

[00:14:01] Speaker 02:
The microprocessor for generating?

[00:14:04] Speaker 02:
What microprocessor would it be?

[00:14:06] Speaker 02:
This gets worse as you move down the claim.

[00:14:09] Speaker 02:
Do you have a user interface?

[00:14:10] Speaker 00:
If I understand correctly, I think you hinted at what you thought your adversary's claim construction to be.

[00:14:16] Speaker 00:
I think what you're saying, I just want to make sure I understand.

[00:14:18] Speaker 00:
You understand it as I understand it, I think, to be that there could be multiple different microprocessors that could be either coupled or could be performing all the different functions or being coupled to the different structures.

[00:14:29] Speaker 02:
That's how I understand it, Your Honor, is what they're saying.

[00:14:32] Speaker 02:
And when you look at that and put it into this claim, it gets hopelessly, in my opinion, indefinite.

[00:14:38] Speaker 02:
You don't know what's going on in the claim.

[00:14:40] Speaker 02:
It gets even worse when you go to claim two, where you have even more stuff that needs to be interconnected and more functions that come about.

[00:14:47] Speaker 00:
If they were correct, though, wouldn't that just mean that the claim's broad?

[00:14:51] Speaker 00:
Not necessarily indefinite.

[00:14:53] Speaker 00:
It's just broad.

[00:14:54] Speaker 02:
It would be broad.

[00:14:56] Speaker 02:
But I would also say that if you took their interpretation to its limit,

[00:15:02] Speaker 02:
To me, it's just now tantamount to being functional claiming.

[00:15:05] Speaker 02:
The microprocessor doesn't matter anymore.

[00:15:09] Speaker 02:
They have now just decided to functionally claim.

[00:15:11] Speaker 02:
And I harken this back to means plus function claiming.

[00:15:14] Speaker 02:
And I know this is not means plus function claiming here.

[00:15:17] Speaker 02:
But I harken it back to that.

[00:15:18] Speaker 02:
When you look at means plus function and you have something that's computer function, this court has said, you can't just have a general purpose processor.

[00:15:25] Speaker 02:
You need to have a specific processor.

[00:15:27] Speaker 02:
that's specifically programmed to do something.

[00:15:30] Speaker 02:
Here, you'd just be functionally claiming, and the processor would be meaningless in many ways.

[00:15:36] Speaker 02:
But I think the Varma case is the most appropriate case.

[00:15:39] Speaker 02:
The language that follows a microprocessor is defining the interconnections of that microprocessor and what it has to do.

[00:15:47] Speaker 02:
And those interconnections, all of those things have to be done by at least one microprocessor, as the district court found.

[00:15:58] Speaker 02:
also reaches this conclusion.

[00:16:00] Speaker 02:
This case is much more akin to the claims 1, 3, and 5 in convol than it would be the 9 and 15.

[00:16:07] Speaker 02:
Because here, we have an interconnection with other components in the claim, which is exactly what claims 1, 3, and 5 in convol had, and how the court surmised that those claims were different than claims 9 and 15, and reached the conclusion

[00:16:25] Speaker 02:
that in that case, the microprocessor had to perform the various functions and have the various connections.

[00:16:37] Speaker 02:
Unless your honors have any further questions on that, I turn my attention to the harmlessness of the construction.

[00:16:46] Speaker 02:
So your honor, in this case,

[00:16:50] Speaker 02:
The claim has another element, a memory device, coupled, and it's a lengthy element.

[00:16:55] Speaker 02:
There are two halves to that element.

[00:16:57] Speaker 02:
The first is that the memory device is coupled to the microprocessor configured to store polarity parameter sets.

[00:17:04] Speaker 02:
The district court construed configure to to mean

[00:17:07] Speaker 01:
a particularized arrangement of the memory device for a specific purpose.

[00:17:20] Speaker 01:
that you should win anyway because the jury was required to find non-infringement on these other two grounds.

[00:17:28] Speaker 01:
First of all, it was a little unclear from the briefing, but you do accept that that's what we would have to find, that the jury was required to agree with you on one or both of those other non-infringement grounds?

[00:17:40] Speaker 02:
Yes, Your Honor.

[00:17:40] Speaker 02:
I think under the Court's precedent in Network 1

[00:17:44] Speaker 02:
I'm losing my train of thought on the other case right now, that a reasonable jury would have been required by the evidence.

[00:17:54] Speaker 01:
It's not enough just that there was substantial evidence to support a verdict of non-infringement.

[00:18:00] Speaker 01:
That would not be enough.

[00:18:01] Speaker 02:
So I would admit that I think it's slightly unclear, but the language that has come out of the court is certainly the required language that it's there.

[00:18:11] Speaker 01:
So tell us how on one or both of those the jury would have been required to find non-infringement.

[00:18:18] Speaker 02:
So I'm going to turn to the second half of the memory device claim first, which is where you have such that the memory space required to store said parameters, which the court interpreted as parameter sets, is smaller than the memory space required to store said command code sets.

[00:18:34] Speaker 02:
During trial, plaintiff's expert delineated for the court, for the jury, what were the parameter sets and what were the command code sets.

[00:18:44] Speaker 02:
And he talked about it in terms of bits.

[00:18:47] Speaker 02:
And he was asked how many bits were in the command code set.

[00:18:54] Speaker 02:
And he agreed, on cross-examination, this is at appendix 1560 line 4 through 1561 line 12, that the command code set had 224 bits of physical memory to store.

[00:19:09] Speaker 02:
He was asked those same questions about the parameter sets at appendix 1561 line 13 through appendix 1562 line 8.

[00:19:18] Speaker 02:
He admitted that the parameter set had 384 bits of physical memory to store.

[00:19:25] Speaker 02:
He was then asked whether there was any empty spaces physically in memory due to those bits.

[00:19:32] Speaker 02:
And he had to admit there was not.

[00:19:34] Speaker 02:
That's at appendix 1559, 13 through 17, and 18 through 20.

[00:19:41] Speaker 02:
To me, that's the end of the story.

[00:19:44] Speaker 02:
Their expert admitted in front of the jury that the opposite is true within these devices.

[00:19:50] Speaker 01:
I think you moved for judgment as a matter of law on that ground, didn't you?

[00:19:53] Speaker 02:
We did, Your Honor.

[00:19:54] Speaker 01:
And you were denied?

[00:19:55] Speaker 02:
We were denied.

[00:19:56] Speaker 02:
Yes, Your Honor.

[00:19:57] Speaker 01:
So isn't it pretty clear that a reasonable jury didn't have to accept your analysis of the evidence?

[00:20:06] Speaker 02:
I don't know if I would agree with that, Your Honor.

[00:20:08] Speaker 02:
I mean, certainly the judge didn't find it to be enough to take it out of the hands of the jury.

[00:20:14] Speaker 02:
But when you have both experts agreeing that the very things that

[00:20:21] Speaker 02:
Their expert identifies as the command code sets and the parameter sets have backward storage capacities from the claims.

[00:20:29] Speaker 02:
The command code set takes less room than the parameter set.

[00:20:34] Speaker 02:
I don't know how any reasonable jury could not have found non-infringement in those instances.

[00:20:40] Speaker 02:
Both experts agreed the claim is the opposite of the claim.

[00:20:45] Speaker 02:
In that circumstance, I think a reasonable jury would have to find.

[00:20:50] Speaker 02:
would be required to find, not infringement.

[00:20:55] Speaker 02:
Your Honor, as I see, I'm running up against my time here a little bit.

[00:20:59] Speaker 02:
I'd just like to briefly talk about the claim preclusion and the Kessler Doctrine for a second.

[00:21:07] Speaker 02:
To cut to the chase, I just feel like if there's ever a case that I've learned from in law school that should be barred for claim preclusion and I owed the Kessler Doctrine, it is this one.

[00:21:17] Speaker 02:
We have the same plaintiff.

[00:21:20] Speaker 02:
The same patent, the identical claims, asserted against 3.8 million of the identical products.

[00:21:29] Speaker 00:
What about the fact that in the first case, there was another ground on which non-infringement could have been found, and that was specifically that the manufacturer, I think, was

[00:21:39] Speaker 00:
not performing anything inside the United States was the argument.

[00:21:43] Speaker 00:
So that could have been the basis for the jury's verdict.

[00:21:46] Speaker 00:
So why doesn't that make it so collateral stubble or Kessler would not apply?

[00:21:55] Speaker 02:
Your Honor, I anticipated this question from the court today.

[00:21:58] Speaker 02:
The jury verdict form read this.

[00:22:01] Speaker 02:
Did Mr. Salazar prove by a preponderance of the evidence that HTC Corporation infringed any of the asserted claims through the use, sale, or offer for sale in the United States, proper under the law, or importation in the United States of any of the following accused products?

[00:22:22] Speaker 02:
And then it listed the three products that are in both cases.

[00:22:26] Speaker 02:
The jury was obligated under that jury instruction to look at use, sale, offer for sale, and importation.

[00:22:35] Speaker 02:
Plaintiff presented numerous evidence and argument to the jury about offer for sale, including all of the contracts between HTC and each of these defendants.

[00:22:49] Speaker 01:
It doesn't that all fundamentally mean we cannot tell whether the jury found non-infringement on the basis of lack of action by HTC in the US or whether they found it perhaps additionally because the product didn't meet all the elements of the claims.

[00:23:05] Speaker 01:
We just can't tell.

[00:23:07] Speaker 02:
But Your Honor, I think what I'm saying to the court is the evidence that was presented on offer for sale, there was no evidence presented that none of that occurred in the United States.

[00:23:17] Speaker 02:
It was all in the United States.

[00:23:18] Speaker 01:
But there was an extraterritoriality defense.

[00:23:21] Speaker 01:
In fact, it appears to be- For importation.

[00:23:23] Speaker 01:
Primary defense.

[00:23:24] Speaker 01:
But this was the only infringement question the jury was asked, isn't it?

[00:23:27] Speaker 02:
This is the only infringement question with the oars in it.

[00:23:31] Speaker 02:
And I think that's the important point, is that the jury had to look at each of these things and make a decision.

[00:23:37] Speaker 02:
And since they answered the question no, and not yes on any of them.

[00:23:40] Speaker 00:
Are you saying that because the jury verdict question was, did A happen or B happen?

[00:23:46] Speaker 00:
They had to actually consider both?

[00:23:49] Speaker 02:
I think it's actually four things, Your Honor.

[00:23:51] Speaker 02:
But I would say yes.

[00:23:52] Speaker 02:
That's what the jury question with obligation.

[00:23:54] Speaker 00:
Why would they have to?

[00:23:55] Speaker 00:
The answer to the question was, is there no infringement because of A or B?

[00:23:59] Speaker 00:
Why, once they decide there is an infringement because of A, why do they need to move on to B?

[00:24:05] Speaker 02:
Well, because the court didn't just say it's infringed any of these sort of claims through each of these.

[00:24:15] Speaker 02:
So I mean, the way it's written,

[00:24:19] Speaker 02:
The court is asking through use, through sale, through offer for sale.

[00:24:23] Speaker 01:
That's not how the case was tried, though, right?

[00:24:26] Speaker 01:
HTC argued very clearly you can find non-infringement based on lack of action in the US.

[00:24:32] Speaker 01:
Or here's another one you can find non-infringement based on we don't practice all the elements of the claims.

[00:24:38] Speaker 02:
Your honor I fully admit that that's true that we argued before this jury about Who was the importer into the United States that that was before this year and told the jury?

[00:24:50] Speaker 01:
This is in the first case told the first jury You can rule for us Without even considering the elements of the claims if you just simply find we didn't take any action in the u.s.

[00:25:03] Speaker 02:
right Yes, your honor that that is very true but

[00:25:06] Speaker 02:
That may impact Kessler, but I'm not sure it impacts claim preclusion.

[00:25:11] Speaker 02:
Because in claim preclusion, the Supreme Court has said, and this is from New Hampshire v. Maine, successive litigation of the very same, whether or not relitigation of the claim raises the same issues as the earlier suit.

[00:25:28] Speaker 02:
There were different issues there.

[00:25:30] Speaker 02:
But here, under claim preclusion, the parties are in privity.

[00:25:36] Speaker 02:
There was a judgment rendered by court.

[00:25:38] Speaker 00:
Isn't it true that the extraterritoriality defense would only apply to HTC?

[00:25:43] Speaker 00:
It would not apply to AT&T, right?

[00:25:46] Speaker 02:
Absolutely.

[00:25:47] Speaker 02:
But AT&T was in the first case and was dismissed from the first case prior to trial by the plaintiff.

[00:25:55] Speaker 02:
This was an issue they could have raised, and that's what claim preclusion is for.

[00:26:00] Speaker 02:
I see I'm over my time, Your Honor.

[00:26:02] Speaker 02:
Thank you.

[00:26:13] Speaker 03:
Thank you.

[00:26:14] Speaker 03:
I'll first address the procedural matter.

[00:26:18] Speaker 03:
Your honors are on point.

[00:26:20] Speaker 03:
The jury instructions just did not make clear what was the basis for their ultimate decision of non-infringement.

[00:26:28] Speaker 03:
And because we don't know if they decided on infringement because they were convinced that the sale did not occur in the United States, or because the claim elements of the patent were not met,

[00:26:42] Speaker 03:
Either one of those theories could have been the basis.

[00:26:45] Speaker 03:
So those products did not get that trade right.

[00:26:50] Speaker 03:
They did not get it clear, so to speak, for the purposes of claim preclusion.

[00:26:56] Speaker 03:
And under Kessler, the products didn't get it clear.

[00:27:01] Speaker 03:
And Kessler doesn't apply here, because Kessler only relates to post-judgment.

[00:27:07] Speaker 03:
allegations of infringement, which there were none here.

[00:27:10] Speaker 03:
In the case of claim preclusion, we don't have the same claim or cause of action because one related to claims outside of the United States, excuse me, transactions outside the United States, and one related to transactions within the United States.

[00:27:24] Speaker 03:
So we did not get a resolution of the basic issue as to whether or not the claim elements were actually met by these products.

[00:27:36] Speaker 03:
Um, so I, I, I just, this is a, from, as a matter of, you know, as a matter of privity, as a matter of the same, not being the same claim or cause of action, but even more importantly, your honors, the HTC and AT&T argued in the first case that, that Salazar should not be able to add AT&T to the case.

[00:28:03] Speaker 03:
They could not add them because it was a separate transaction in occurrence under Section 299 of the American Events Act.

[00:28:11] Speaker 03:
They'd taken that position.

[00:28:13] Speaker 03:
And that's why the court severed the case, split the case.

[00:28:18] Speaker 03:
It would be inequitable.

[00:28:19] Speaker 03:
It would be contrary to good policy.

[00:28:22] Speaker 03:
And in effect, it's a waiver of the claim preclusion argument.

[00:28:26] Speaker 03:
under the second restatement of judgments, Section 26.1a, it's a basic principle that if you argue to split the case as a defendant, you can't later argue claim preclusion.

[00:28:41] Speaker 03:
And that's exactly what HTC and AT&T did.

[00:28:45] Speaker 03:
And consequently, there can be claim preclusion for that reason.

[00:28:51] Speaker 03:
And of course, as a doctrinal matter, as an equity matter, as a policy matter.

[00:28:57] Speaker 03:
And with respect to the validity of the argument, yes, clearly a reasonable jury could have found that there was non-infringement.

[00:29:07] Speaker 03:
I would say that Judge Gilstrap, in ruling on the Rule 50, was making a decision as to whether a reasonable jury could find for the plaintiff, and the court proceeded to move forward with the case.

[00:29:20] Speaker 03:
So I don't think there's any question that a reasonable jury could have found non-infringement.

[00:29:26] Speaker 03:
So I don't think that's a compelling argument.

[00:29:28] Speaker 03:
Just coming back to the claim construction issue, the law of this court makes very clear that there must be unmistakable clear intent either in the prosecution history, either in the specification or claim language.

[00:29:45] Speaker 03:
If you're going to narrow or go away from sort of the Baldwin rule, that A component means one or more.

[00:29:54] Speaker 03:
The structure of the claim in Salazar speaks to a communication command control and sensing system comprising

[00:30:01] Speaker 03:
a microprocessor.

[00:30:02] Speaker 03:
A microprocessor, under Baldwin and Progeny, means one or more microprocessors.

[00:30:08] Speaker 03:
Then it's either coupled to various things or it has various statements that it's for certain purposes.

[00:30:17] Speaker 03:
There's no language in this, unlike in Varmer, where there was a very specific, or let's take Convolve, where there was a very specific connection in the preamble, in this case of Convolve, and guess what, you're correct, and in ReVarmer it was not in the preamble,

[00:30:29] Speaker 03:
connecting either the user interface to the processor in the preamble in convolve.

[00:30:35] Speaker 03:
The court compared two sets of claims and found in one set of claims there wasn't that precise link.

[00:30:42] Speaker 03:
and found that it wasn't limiting.

[00:30:45] Speaker 03:
In the case where the user interface was linked specifically to the processor in Commvault, in the preamble, the court then found that, okay, now those two have to be together, and the fact that it's A, it was one of more, we find exception.

[00:30:59] Speaker 03:
But where the claim language

[00:31:02] Speaker 03:
In Convolve, with respect to claims 9 and 15, recited apparatus for controlling operation of data, storage, device, the apparatus comprising.

[00:31:13] Speaker 03:
We say this is, and then they had various elements comprising.

[00:31:18] Speaker 03:
The court found that it wasn't limiting.

[00:31:20] Speaker 03:
And we argue that Salazar's case really is

[00:31:25] Speaker 03:
as opposed to, it's just like an apparatus, it's a communication command control and sensing system here.

[00:31:30] Speaker 03:
There is no limitations recited in the preamble and then you go on and then it talks about a microprocessor that has various limitations.

[00:31:39] Speaker 03:
And those limitations could, you can't, you reinvoke the plurality, you don't lose the plurality when you have a definite article said

[00:31:49] Speaker 03:
or the, in this case, the said microprocessor just refers back to the group.

[00:31:54] Speaker 03:
Why would you limit it to a single microprocessor?

[00:31:57] Speaker 03:
If you say that said only goes back to a single, then where's the Baldwin rule?

[00:32:02] Speaker 03:
It's no longer one or more.

[00:32:04] Speaker 03:
It could just be equal to one microprocessor.

[00:32:07] Speaker 03:
It renders the rule meaningless.

[00:32:09] Speaker 03:
And in many claims out there that are in patents,

[00:32:12] Speaker 03:
you have this structure where you have A, something with various other limitations.

[00:32:17] Speaker 03:
If we say that every time there are other limitations around the definite article, and that's going to limit it to a single component, then when would the Baldr rule ever apply?

[00:32:30] Speaker 00:
We understand your argument, Mr. Kehaney.

[00:32:33] Speaker 00:
I think you're about out of time.

[00:32:35] Speaker 00:
Did you want to summarize that up or add anything else?

[00:32:39] Speaker 03:
I would just say, Your Honor, that

[00:32:41] Speaker 03:
We believe that, again, as a matter of policy and as a matter of equity, the claim for pollution should not apply, because there is no privity between the carriers and HDC.

[00:32:56] Speaker 03:
And it was a different claim and cause of action.

[00:32:58] Speaker 03:
On Kessler, that's a red herring, Your Honor.

[00:33:01] Speaker 03:
Kessler is limited to post-judgment.

[00:33:04] Speaker 03:
infringement activities or allegations of infringement.

[00:33:07] Speaker 03:
There was none of that.

[00:33:08] Speaker 03:
The patent was expired.

[00:33:10] Speaker 03:
On validity, we pointed out it was right.

[00:33:13] Speaker 00:
I think you're out of time.

[00:33:14] Speaker 03:
Thank you, Your Honor.

[00:33:15] Speaker 00:
Mr. Landis?

[00:33:19] Speaker 00:
Your Honor, I'm looking for him.

[00:33:22] Speaker 02:
If you have a question for me, I'll be happy to answer it.

[00:33:24] Speaker 00:
We don't have any questions.

[00:33:25] Speaker 00:
Thank you very much.

[00:33:30] Speaker 00:
OK.

[00:33:30] Speaker 00:
The case will be submitted in the briefs.

[00:33:32] Speaker 00:
We thank counsel for their argument.

[00:33:34] Speaker 00:
Thank you.