[00:00:00] Speaker 04: Our next argument is United Access Technology versus AT&T, SBC, Century, Taylor, Kay West, 2021, 2002, and 2007. [00:00:14] Speaker 04: Mr. Garza. [00:00:20] Speaker 04: And you might want to first direct your attention to the Robinson Reader case. [00:00:31] Speaker 00: May it please the court. [00:00:33] Speaker 00: The reasoning of the DC Circuit in the Robinson Reeder case does not affect declaratory judgment claims such as are at issue here. [00:00:43] Speaker 00: In that case, the DC Circuit found that Rule 54 gave the district court the power to determine whether to maintain jurisdiction over related claims after partial dismissal, [00:00:56] Speaker 00: and that the litigants' use of the voluntary dismissal procedures of Rule 41 usurped that authority from the district court. [00:01:05] Speaker 00: But declaratory judgment claims were not at issue in Robinson Reeder, and they're different. [00:01:10] Speaker 00: As this court found in the 2007 case of Benetech Australia versus Neutronix, the site is 495 F3rd, 1340, the party seeking to maintain a declaratory judgment jurisdiction [00:01:25] Speaker 00: has an ongoing evidentiary burden to show a substantial controversy of sufficient immediacy and reality to justify declaratory judgment, both at the inception of litigation and throughout the litigation. [00:01:39] Speaker 00: Here, when the parties have agreed to dismiss the case, the parties have abandoned this evidentiary burden. [00:01:45] Speaker 00: And the district court cannot carry this burden without the help of the parties. [00:01:49] Speaker 00: So unlike in Robinson Reader, here, the parties' use of Rule 41 does not usurp the district court's authority because the district court could not maintain jurisdiction without the participation of the parties. [00:02:05] Speaker 03: Are you suggesting that in a situation which if the parties had gone to the district court and asked for a rule 54B certification, and the district court had said no, as Judge Jordan indicated he probably would have, that nonetheless, even in the absence of the district court's failure to certify under 54B, that this court would have jurisdiction over the summary judgment grant? [00:02:33] Speaker 00: So it's a strange result, but I think so. [00:02:36] Speaker 00: And the reason is you can picture how it could go out. [00:02:39] Speaker 03: What would be easier for you just to dismiss the Sentry Tell case at this point? [00:02:45] Speaker 03: You still have the AT&T case. [00:02:47] Speaker 03: I don't think anybody's, other than the fact that there wasn't final judgment on a separate piece of paper, but that can be gotten around. [00:02:54] Speaker 03: But it seems to me you have a big problem with the Sentry Tell case, notwithstanding the argument you're making about [00:03:03] Speaker 03: the declaratory judgment. [00:03:05] Speaker 03: I've never seen that argument made in the context of a finality determination before. [00:03:12] Speaker 00: I agree. [00:03:13] Speaker 00: And you are correct. [00:03:14] Speaker 00: This argument has not been made before. [00:03:16] Speaker 00: But it falls from the Federal Circuit's requirement that there be an evidentiary basis for declaratory judgment jurisdiction. [00:03:24] Speaker 00: Declaratory judgments are special in that regard. [00:03:27] Speaker 00: So the district court can't maintain jurisdiction without the presence of the parties. [00:03:32] Speaker 00: It's impossible under Federal Circuit precedent. [00:03:34] Speaker 02: Well, let's assume we reject that argument. [00:03:36] Speaker 02: Do you have another argument? [00:03:38] Speaker 00: No, Your Honor. [00:03:38] Speaker 00: I think the only other argument I would make is that patent cases are different than Title VII and defamation cases. [00:03:47] Speaker 00: There is a presumption against piecemeal litigation, especially when you have claims as related as infringement and infelidity, where you share the same patent. [00:03:57] Speaker 00: It makes sense for the jury to consider the issues at the same time. [00:04:01] Speaker 04: You think the Supreme Court agrees that patent cases are different? [00:04:06] Speaker 00: It depends on the case. [00:04:09] Speaker 00: I'll move to the merits. [00:04:10] Speaker 00: The record here shows three ways in which the lines running downstream from the DSLAM are different than the lines that run upstream to the public switch telephone network. [00:04:26] Speaker 00: First, each twisted wire pair running downstream from the DSLAM transmit signals to exactly one subscriber. [00:04:34] Speaker 00: There's no switching equipment downstream of the DSLAM. [00:04:37] Speaker 00: The signals can't jump from one line to another. [00:04:39] Speaker 00: The destinations are predetermined. [00:04:42] Speaker 00: In contrast, the upstream voice signals can run to any subscriber on the public switch telephone network through the switching equipment at the central office. [00:04:53] Speaker 00: Second, starting again with the downstream side, [00:04:56] Speaker 00: A single twisted wire pair is sufficient to carry the signals that branch to the individual subscribers. [00:05:04] Speaker 00: In contrast, the defendants have installed higher capacity T1 and fiber optic cables to transmit the voice signals to the switching equipment at the central office. [00:05:17] Speaker 00: Finally, the downstream lines have a different type of signal. [00:05:20] Speaker 00: There's a multiplexed voice and data signal that cannot reach the public switch telephone network. [00:05:26] Speaker 00: The DSLAM is the boundary. [00:05:28] Speaker 00: The DSLAM takes apart that signal and only allows the voice signals to pass to the public switch telephone network. [00:05:36] Speaker 00: The jury can look at these factual differences between the downstream lines and the upstream lines to determine that these lines should be characterized differently and the boundaries should be the D-SLAM. [00:05:47] Speaker 00: For example, the jury can look at the twisted wire pairs coming downstream from the D-SLAM and decide that those are branches that lead to individual subscribers and not a trunk that can lead to any subscriber attached to the public switch telephone network. [00:06:03] Speaker 00: Further, the jury can look at the DSLAM as a boundary, because the multiplex voice and data signals, if they try to run up against it, they are taken apart. [00:06:15] Speaker 03: But you could have numerous different boundaries, I suppose, between the central office and the signal interface, where you make various changes, either in the mode of transmission, the degree to which the wires are bundled, [00:06:33] Speaker 03: Part of it could be fiber optic. [00:06:35] Speaker 03: Part of it could be wire. [00:06:36] Speaker 03: You wouldn't suggest that you could put the D-SLAM on, let's say, a place upstream of any number of these convergence points. [00:06:48] Speaker 03: And because it's a D-SLAM, that's enough to mean that everything downstream of that D-SLAM is local, as we use the term, versus public trunk. [00:07:00] Speaker 00: I disagree. [00:07:03] Speaker 00: First, from UAT 2, of course, the DSLAM can't be open and operated from the central office. [00:07:08] Speaker 00: That's law of the case. [00:07:09] Speaker 00: There is a positional limitation to the DSLAM. [00:07:12] Speaker 00: We know it has to be downstream of the public trunk line. [00:07:15] Speaker 00: And importantly here, in this motion, defendants have not challenged our designation of the lines running upstream from the DSLAM as a public trunk line. [00:07:24] Speaker 00: The summary judgment motion is about whether the jury can look at the lines running downstream of the public trunk line and decide that they are extended pairs, not part of the public trunk. [00:07:40] Speaker 00: There are two other issues we would like the court to address. [00:07:44] Speaker 00: The first is claim construction. [00:07:47] Speaker 00: The district court did find that the signal interface must be located at the furthest downstream point of convergence. [00:07:55] Speaker 00: We think that ruling is an error. [00:07:57] Speaker 00: Without a ruling that further narrows the positional limitation from the UA-T2 case, there's no basis to grant defendant's motion. [00:08:09] Speaker 00: There's no legal basis that would prevent the signal interface from sitting from where it sits in the accused embodiments. [00:08:15] Speaker 00: The second issue relates to Dr. Williams' deposition testimony. [00:08:20] Speaker 00: The district court gave that testimony to much weight. [00:08:23] Speaker 00: When there is competing expert statements and record factual evidence, the district court should not have taken the admissions and treated them as determinative. [00:08:35] Speaker 03: In your brief, you characterized, I think this is a fair characterization, that Dr. Williams' testimony is having been the product of confusion. [00:08:44] Speaker 03: And I read through the section of his testimony in which he conceded that he had not given an opinion on each of the questions he was asked, which were essentially the same question over and over. [00:08:57] Speaker 03: I didn't find a source of confusion there. [00:09:00] Speaker 03: It seemed to me the questions were pretty clear. [00:09:03] Speaker 03: What is the confusion you see in that sequence of questions and answers? [00:09:07] Speaker 00: So I certainly did not intend to give you that impression with my brief. [00:09:13] Speaker 03: I thought there was something that basically said in the heat of the deposition. [00:09:18] Speaker 03: In the heat of the deposition, and it was a suggestion of a lack of clarity. [00:09:23] Speaker 00: Well, I agree. [00:09:25] Speaker 00: Once a witness has answered a question incorrectly, if you ask the same follow-up question five times, you'll probably get the same answer five times. [00:09:33] Speaker 00: hope that the witnesses maintain a consistent line of argument. [00:09:36] Speaker 03: Well, but if on the second question he realizes that he had misapprehended the question the first time, you would expect a different answer with an explanation. [00:09:44] Speaker 00: Hopefully. [00:09:45] Speaker 03: We didn't get that. [00:09:46] Speaker 00: Correct. [00:09:47] Speaker 00: But on summary judgment, we can't compare the expert's deposition answers and prefer them to the statements in his declaration. [00:09:55] Speaker 00: If we do that, we are [00:09:58] Speaker 00: We are having a trial by document. [00:09:59] Speaker 00: We are robbing the jury of its chance to evaluate the credibility of the witness and determine if those questions that he did answer multiple times in a disfavorable way should overtake his statements he had made before the deposition. [00:10:16] Speaker 03: What do you think is the strongest statement in any of his expert reports, either of his expert reports, that favors [00:10:26] Speaker 03: construction that you're advocating. [00:10:30] Speaker 00: So we're not relying on the expert report to justify or claim construction. [00:10:35] Speaker 03: No, I said construction. [00:10:36] Speaker 03: That's a misstatement. [00:10:38] Speaker 03: The theory that you're suggesting. [00:10:41] Speaker 00: So again, we do point to his statements at pages 19 to 21 of the reply and 48 to 50 of the opening brief. [00:10:48] Speaker 00: I think the strongest statements are his. [00:10:50] Speaker 03: If you would give me the paragraphs of the reports, because that's what I've got in front of me. [00:10:55] Speaker 00: OK. [00:10:55] Speaker 00: Unfortunately, I did not bring those up. [00:10:58] Speaker 00: But I will say, in the reply brief at pages 19 to 21, we do cite the three statements that we believe support this, along with the diagram where he [00:11:08] Speaker 00: Literally labels the lines coming downstream from the DSLAM as extended pairs and the lines going upstream from the DSLAM But in his report in the portions that we cited to it Pages 19 to 21 of the reply we have three bullet points that are right before the diagram That's where he explains how he came to his conclusions [00:11:34] Speaker 00: If there's no other questions, I would like to save the remainder of my time for rebuttal. [00:12:06] Speaker 01: Good morning, and may it please the court. [00:12:10] Speaker 01: I'll start with the Robinson Reader case, and I'll just get one point beyond what my colleague said. [00:12:17] Speaker 01: I would point out that in Robinson Reader, and this is in footnote seven, and also I believe it is in page, they've got two different, using the Fed third site, it's 1340. [00:12:30] Speaker 01: The case talks about how statute of limitation or any other analogous constraint can be sufficient. [00:12:39] Speaker 01: And going in further of what my colleague said, I would say that the basis of the counterclaims at issue in the second appeal are an analogous constraint. [00:12:49] Speaker 01: If we look at them in the record, you'll see that the only basis given for those declaratory judgment counterclaims is the complaint of infringement. [00:12:58] Speaker 01: So once that complaint of infringement was resolved on summary judgment, this court's affirmance does act to eliminate, in the same way as the statute of limitations, the basis for those counterclaims. [00:13:12] Speaker 01: Because the only basis given for how the counterclaims, which are declaratory judgment counterclaims, meet the case or controversy requirement was the affirmative infringement assertion that was made in the complaint. [00:13:25] Speaker 01: So there is language in Robinson Reader that lines up with the analysis offered by my colleagues. [00:13:30] Speaker 01: So I just offer that to the court. [00:13:32] Speaker 01: But as the court pointed out, we can reach the merits regardless because of the appeal in the 338 case, which had no other clause. [00:13:38] Speaker 03: And there would be no prejudice, as far as I can see, to sentry teller. [00:13:42] Speaker 03: At least it's a little hard to see how there would be prejudice. [00:13:45] Speaker 03: by dismissing their appeal and simply requiring that they go back. [00:13:51] Speaker 03: If AT&T loses the case and the UAT wins it, you go back to the district court and you start all over again, right? [00:13:59] Speaker 01: While you're on your own. [00:14:00] Speaker 03: Not start all over again. [00:14:01] Speaker 03: You start where you left off. [00:14:03] Speaker 01: Well, Your Honor, I'm not sure what the district court would do at that point. [00:14:06] Speaker 01: Rule 41 does allow litigants to dismiss without prejudice a client. [00:14:11] Speaker 01: And there's nothing left for the district court to do, given that the rule allows the parties to do exactly what they did. [00:14:18] Speaker 03: But the problem with it is that what the policy that seems to me emerges clearly from the rule is exactly what Judge Garland said in Robinson Reeder, which is to have the district court act as the dispatcher [00:14:30] Speaker 03: of the issue of finality. [00:14:32] Speaker 03: Yes, you can dismiss. [00:14:34] Speaker 03: That doesn't necessarily mean you thereby automatically get review in the Court of Appeals that you have finality for purposes of Section 1291, or in our case, 1295. [00:14:45] Speaker 03: So there's a difference between what 41A1A2 allows versus what 1291 requires. [00:14:53] Speaker 03: You'd agree with me on that. [00:14:55] Speaker 01: Well, I agree with you that that's what the DC Circuit. [00:14:57] Speaker 01: That's the analysis of the DC Circuit. [00:14:59] Speaker 01: But let me give a little bit. [00:15:01] Speaker 01: It is odd to say that a district court is constrained to go to trial on the remaining claims when, under Rule 41, the parties dismiss a claim. [00:15:12] Speaker 01: They're allowed to do that. [00:15:13] Speaker 01: So from a judicial efficiency, it's not like the district court, under Congress's structure, is allowed to say, well, I'm not going to go to trial on the remaining claims, because you used Rule 41 to dismiss this one claim that I think shouldn't have been dismissed. [00:15:28] Speaker 01: And yet, at the appeal level, that same question of going forward with the remaining claims somehow becomes a bar to appeal. [00:15:36] Speaker 01: And I don't think that was really considered in the Robinson Reeder case. [00:15:39] Speaker 01: I don't think this court needs to read it, because these counterclaims are different. [00:15:42] Speaker 01: They're declaratory judgment counterclaims, and thus are linked in the language of Robinson Reeder, because they have, in the language, analogous constraint. [00:15:52] Speaker 01: They're linked to the claims that were adjudicated on the merits. [00:15:56] Speaker 02: And so just to be clear, and this was your first argument you presented, so because this was a DJ [00:16:03] Speaker 02: What? [00:16:03] Speaker 02: Why does that give us jurisdiction? [00:16:07] Speaker 02: Your argument is because they would automatically fall if there were an affirmance? [00:16:13] Speaker 01: Simply put, Your Honor, affirming ends the case. [00:16:19] Speaker 01: And that's the basis for the final judgment, final decision rule, is we want the affirmance to end the case. [00:16:26] Speaker 01: In Robinson Reeder, the Title VII claim and the defamation claim were independent claims. [00:16:32] Speaker 01: There could have been an affirmance, and that plaintiff could have come back and sued the next day for defamation. [00:16:37] Speaker 01: But if the defendant in this case comes back and makes that same DJ claim the next day, it gets dismissed. [00:16:45] Speaker 01: Because the basis for the DJ claim, assuming this court is fair. [00:16:49] Speaker 02: So your rule would not apply to what most of our cases are like, where you've got counterclaims? [00:16:54] Speaker 01: If the counterclaim is a DJ claim based on an affirmative claim, it applies. [00:16:59] Speaker 01: If it's a separate, then no, it wouldn't apply. [00:17:03] Speaker 01: In the words of Robinson Reeder, there is a constraint such that the affirmance will block the subsequent re-attempt at that point. [00:17:13] Speaker 04: And that's the case here. [00:17:19] Speaker 01: So on the merits, I'd like to start with Judge Bryson's question. [00:17:24] Speaker 01: You asked my opponent. [00:17:25] Speaker 01: I think it's a great question. [00:17:26] Speaker 01: What part of these reports are supposedly in contrast with the crystal clear deposition testimony? [00:17:33] Speaker 01: So the court below looked at the fact that this court has said there is a requirement that you put forward evidence applying the proper construction to the accused system. [00:17:44] Speaker 01: That's what the judge below said. [00:17:46] Speaker 01: And that is what wasn't happening here. [00:17:49] Speaker 01: And in answer, basically, the plaintiff wants to say, well, we'll just tell the jury about the accused system. [00:17:56] Speaker 01: no evidence of applying the proper construction to it, and we'll let the jury decide. [00:18:01] Speaker 01: And in fact, if you look at some of the things they point to, they're pointing at the specification. [00:18:06] Speaker 01: They're asking the jury to do what the Supreme Court in Markman said is not the jury's job, to look at the specification and decide, well, what's disclosed in the specification? [00:18:16] Speaker 01: It's kind of close to the accused systems in some way. [00:18:19] Speaker 01: I mean, that's why we have two parts to infringement. [00:18:23] Speaker 01: We determine the proper claim construction. [00:18:26] Speaker 01: And then, as a matter of fact, the patentee has the burden of putting forward evidence applying that plain construction to the accused systems. [00:18:35] Speaker 01: Here, the only evidence put forward of that was, in theory, the expert. [00:18:40] Speaker 01: And the expert said, well, I'm not looking at whether this is truly the opposite end. [00:18:46] Speaker 01: The expert went and said, well, I can see that there's public trunk line between the central office and this spot where I say the proper signaling interface is. [00:18:56] Speaker 01: And then said, and I am not looking any further. [00:18:59] Speaker 01: I am not doing any analysis of what's downstream. [00:19:03] Speaker 03: Well, he said that in his deposition, but do you read the excerpts from his reports as saying essentially that, or do you think he went farther, maybe even a little farther, by way of suggesting that everything downstream of the D slam is local? [00:19:23] Speaker 01: Respectfully, Your Honor, let's turn. [00:19:24] Speaker 01: While we didn't get an answer as to where in the report, we were told to look at the bullet points on pages 19 and 20. [00:19:32] Speaker 01: And that will let me address your question. [00:19:35] Speaker 01: So the first bullet point is, they basically say, well, he said that the B slam sits at the local end of the public trunk line. [00:19:43] Speaker 01: And therefore, he must admit that everything downstream is not public trunk line. [00:19:50] Speaker 01: The problem with that is this court has said many times, starting with Arthur C. Collins, who cited our brief, that you can't just give the conclusion and say, the expert said the conclusion, therefore we infer some analysis is behind it. [00:20:06] Speaker 01: That's not the test. [00:20:07] Speaker 01: You have to actually have the expert provide some analysis under the claim construction. [00:20:12] Speaker 01: So that bullet point doesn't do it. [00:20:14] Speaker 01: The second bullet point is that he states that the bundled lines running between the DSAM and the serving terminal are extended pairs. [00:20:22] Speaker 01: That's recreating the argument they made on claim construction. [00:20:27] Speaker 01: Nothing in the claim construction says anything about extended pairs. [00:20:31] Speaker 01: So applying the claim construction [00:20:34] Speaker 01: required him to look at public trunk line, which is what the claim construction says, and determine where the opposite end is, and apply that to the accused systems. [00:20:45] Speaker 01: But instead, he goes back to the terminology that they argued on claim construction. [00:20:50] Speaker 01: But claim construction's over. [00:20:52] Speaker 01: The district court found a claim construction. [00:20:55] Speaker 01: This court affirmed that claim construction. [00:20:58] Speaker 01: The burden at that point was for the patentee to put forward evidence applying that claim construction. [00:21:04] Speaker 01: Arguing about extended pairs, which is not part of the claim construction, but part of their argument about claim construction, doesn't meet that third, final, third-volt point. [00:21:14] Speaker 03: Let me ask you just a clarification of nomenclature, really, because different terms are used in different sources for these [00:21:24] Speaker 03: sets of wires that are going up the stream. [00:21:28] Speaker 03: I think in the previous decision, I characterized, because I wrote the opinion, as the court characterized more accurately, extended pairs as including what are referred to in this record and other places as not only the extended pairs, i.e. [00:21:47] Speaker 03: everything from the serving terminal down to the residences, [00:21:52] Speaker 03: but also the twisted pairs from the serving terminal up to the remote terminal. [00:21:59] Speaker 03: I take it that that is the more proper nomenclature. [00:22:03] Speaker 03: Is that right, or is there a different nomenclature that you would even think preferable to that? [00:22:08] Speaker 01: I think, Your Honor, looking at your opinion from the previous UAT2 case, I would point you to this is on page. [00:22:17] Speaker 01: Let me make sure I get that right. [00:22:19] Speaker 01: 968 of the opinion, where you say the patents make clear that the terms public telephone network and public trunk line refer to a segment of the telephone wiring network located between the local exchange and a point of convergence where the pre-existing interface was located. [00:22:36] Speaker 01: And then below that, you cite to the specification, and you refer to the interface that is a connection between the extended pairs [00:22:47] Speaker 01: and the pairs that are part of the trunk line. [00:22:52] Speaker 01: So in discussing that, now that's not part of the construction. [00:22:55] Speaker 01: But in discussing that, the extended pairs are not the pairs that are part of the trunk line. [00:23:02] Speaker 01: And the only pairs that are part of the trunk line are between the remote terminal and the serving terminal. [00:23:07] Speaker 03: And those would be generally referred to, I take it, correct me if this is wrong, as twisted pairs as opposed to extended pairs. [00:23:14] Speaker 03: Is that a fair statement? [00:23:15] Speaker 01: Your Honor, I think they're both referred to. [00:23:17] Speaker 01: They're both twisted pairs. [00:23:19] Speaker 01: So I don't think you can make that generalization. [00:23:22] Speaker 01: And this is one of the problems with just saying, well, jury, here are some technical documents about this accused system. [00:23:28] Speaker 01: And you apply the claim construction because our experts aren't going to do it. [00:23:32] Speaker 01: We're not going to put in evidence applying the claim construction, even though that's a factual issue according to this court's law. [00:23:39] Speaker 01: We want to just kick it out to the jury [00:23:41] Speaker 01: tell the jury about 50 odd columns of patent that we have here and have the jury make the call. [00:23:48] Speaker 01: And as you realized in the last opinion, there are figures in this patent that clearly aren't part of these claims. [00:23:55] Speaker 01: That was one of the arguments. [00:23:56] Speaker 01: And so leaving the jury to just take the patent and compare it to the accused system, when there's no substantial evidence, as the court below found, of applying the proper claim construction to the accused systems is exactly what Rule 56 is supposed to avoid. [00:24:13] Speaker 01: So looking at that question, I think it's clear that, [00:24:18] Speaker 01: And sorry, I do want to get to this last bullet point, right? [00:24:21] Speaker 01: I don't want to leave one open. [00:24:24] Speaker 01: The bullet point says, finally, this is the last bullet point, page 20 of the reply brief. [00:24:29] Speaker 01: He concludes that the DSLAM meets the positional limitation of the term signal interface. [00:24:36] Speaker 01: Which would be impossible if the lines running downstream of the D-SLAM were part of the public chunk line. [00:24:41] Speaker 01: So again, the expert set a conclusion, and we're going to infer that there was underlying analysis. [00:24:48] Speaker 01: That's not, as this court has said many times, the standard. [00:24:52] Speaker 01: You don't just get to have your expert say the accused system has the limitation and therefore beat summary judgment. [00:24:59] Speaker 01: Especially in this case, you don't even have to go there under your law. [00:25:02] Speaker 01: But in this case, the expert said that and then admitted [00:25:06] Speaker 01: in deposition, but I didn't do the analysis. [00:25:10] Speaker 01: And I refuse. [00:25:10] Speaker 01: I don't have an opinion on the analysis that would be required to determine that truly we are at the opposite end of the public trunk line. [00:25:20] Speaker 01: It's like walking out to I-95 on the Beltway and looking up to Maine and saying, I'm at the opposite end of Maine on I-95 without turning around and looking at I-95 going all the way to Miami. [00:25:32] Speaker 01: That's essentially what the expert did. [00:25:35] Speaker 03: Let me turn your attention to the doctrine of equivalence, if I could. [00:25:41] Speaker 03: Yes. [00:25:42] Speaker 03: There is a place in Judge Stark's summary judgment opinion in which he says, and I'll just quote it, that, for purposes of the motion, the parties provisionally stipulated that a reasonable jury could determine as a factual matter that the locations of the DSLAM in defendants accused instrumentalities are insubstantially different than that required. [00:26:04] Speaker 03: by the signal interface or telephone exchange claim limitations. [00:26:09] Speaker 03: What do you make of that stipulation? [00:26:13] Speaker 01: Well, Your Honor, I'm not exactly sure about the stipulation. [00:26:16] Speaker 01: But in terms of the summary judgment briefing that was in front of the judge this time, it was clearly contested. [00:26:23] Speaker 01: There's no question, if you look at the motion, that that was contested. [00:26:26] Speaker 01: And I would turn, Your Honor, in the appendix, to page 10, 827. [00:26:32] Speaker 01: and 828. [00:26:34] Speaker 03: So just to hold off on that, if you could keep the thought, are you saying, in effect, that for purposes of this motion or the motion, the one that was before Judge Stark does not apply to the current motion before Judge Jordan? [00:26:48] Speaker 01: That is certainly our position, Your Honor. [00:26:49] Speaker 01: And I think the briefing bears that out. [00:26:52] Speaker 01: And again, on page 10, 827 and 828, [00:26:55] Speaker 01: That is the entirety of the argument made by UAT as the DOE in front of the court with regard to the current motion. [00:27:04] Speaker 01: And you'll see that almost all of that goes to the frequency argument, which is the summary judgment motion that the judge didn't even reach below. [00:27:12] Speaker 01: So there is about four lines going to the issue on which the judge below decided the signaling interface. [00:27:19] Speaker 01: And it's an argument that they don't even raise on appeal. [00:27:21] Speaker 01: They haven't preserved any of their arguments on DOE. [00:27:23] Speaker 03: Now, one of the arguments that's made in favor of saying there's no DOE is that the patent suggests that the invention was designed to avoid governmental regulations preventing certain types of signals going on the public trunk. [00:27:42] Speaker 03: system, if it does, avoid those regulations, since you are, by hypothesis, on the public trunk. [00:27:49] Speaker 01: So Your Honor, first of all, the patent is specific, and it has to do with amounts of energy. [00:27:55] Speaker 01: It's not actually signals. [00:27:57] Speaker 01: So I'll point, Your Honor, to the specifics on that. [00:28:00] Speaker 01: So we made that argument based on the actual patent. [00:28:06] Speaker 01: And let me get you to that. [00:28:07] Speaker 01: That's at 234. [00:28:09] Speaker 01: And that's column 48, lines 39 to 46. [00:28:12] Speaker 01: And I'm sorry, I'm going over time, but I just want to answer your question. [00:28:19] Speaker 01: And if you look there at those last few lines, lines 44 to 46, you'll see that what was being discussed was the severe limits on the energy that can be conducted onto the network in that particular band. [00:28:35] Speaker 01: So by minimizing that energy, you are able to achieve [00:28:39] Speaker 01: compliance with the regulations. [00:28:41] Speaker 01: But that's a totally different invention. [00:28:44] Speaker 01: So they didn't know how to do that. [00:28:46] Speaker 01: They said, don't try that. [00:28:48] Speaker 01: We figure out how to do it, and that's why it's not me. [00:28:52] Speaker 01: That's the idea. [00:28:54] Speaker 01: Unless the court doesn't. [00:29:22] Speaker 00: I have three points I'd like to make on rebuttal. [00:29:25] Speaker 00: First, Dr. Williams' analysis is at the appendix, page 6628, 6629, paragraphs 303 to 305. [00:29:35] Speaker 00: Now, defendants suggest at this point that this argument is too facile, that there isn't enough development in these three paragraphs to justify the conclusions. [00:29:45] Speaker 00: Had they argued this at district court under Daubert, you would review that decision as an abuse of discretion. [00:29:52] Speaker 00: They did not challenge the sufficiency of his reasoning under Daubert. [00:29:57] Speaker 00: This issue is you can't review that for the first time here. [00:30:02] Speaker 00: As a result, you have to take this analysis as evidence that the jury could use on summary judgment. [00:30:07] Speaker 00: They haven't preserved their Daubert argument. [00:30:10] Speaker 00: Second. [00:30:11] Speaker 00: Patent cases are not different in one important regard. [00:30:15] Speaker 00: You don't need an expert to hand hold you through the evidence. [00:30:19] Speaker 00: We have shown in our briefing that there are real factual differences between the lines running downstream from the DSLAM and the lines running upstream. [00:30:28] Speaker 00: The jury can look at those and go, I understand these lines are leading to the public switch telephone network and any telephone. [00:30:35] Speaker 00: These lines aren't, these are only leading to one subscriber. [00:30:38] Speaker 00: They can look at those factual differences and come to the proper conclusion about the end of a public trunk line. [00:30:45] Speaker 00: And of course, public trunk line has not been further construed other than saying that it's the public telephone network. [00:30:53] Speaker 00: Again, because we're on defendant summary judgment motion, they have to say what in the construction prevents this from working, what in the construction stops our analysis from satisfying an infringement claim. [00:31:07] Speaker 00: What they point to is the serving terminal. [00:31:09] Speaker 00: They point to the serving terminal as the be-all end-all of what stops this infringement case. [00:31:14] Speaker 00: And for the reasons in our brief, [00:31:17] Speaker 00: Construction in UAT 2 has nothing to do with downstream points of convergences, has nothing to do with downstream bundling. [00:31:25] Speaker 00: And without a claim construction like that at the district court, they can't satisfy their summary judgment burden. [00:31:33] Speaker 00: Unless there's any other questions, I'm happy to release the rest of my time. [00:31:37] Speaker 04: Thank you, counsel. [00:31:40] Speaker 04: The case is submitted.