[00:00:00] Speaker 02:
Our next case for argument is 21-1937, Vocal Life versus Amazon.

[00:00:09] Speaker 02:
All right, Mr. Ray, please proceed.

[00:00:14] Speaker 06:
May it please the court.

[00:00:17] Speaker 06:
The sole issue before you is whether or not the plaintiff, Vocal Life, could show that an Amazon user or Amazon customer of the Echo device could literally infringe a claim of 330 words

[00:00:30] Speaker 04:
Well, you say it's a sole issue, but there's certainly a lot of underlying issues that go to that.

[00:00:35] Speaker 04:
So let me ask you just kind of a housekeeping thing.

[00:00:39] Speaker 04:
There are five limitations on infringement, and you challenge each of those.

[00:00:44] Speaker 04:
Reasonably, both sides didn't have a lot of paper to deal with it.

[00:00:47] Speaker 04:
But if you win on any of those, does that mean you prevail on this case, case over?

[00:00:54] Speaker 04:
If so, if you were to prevail hypothetically on any of those, that would obviate even a claim construction dispute that seems to be before us.

[00:01:03] Speaker 04:
That's a question, not an answer.

[00:01:05] Speaker 06:
The answer is yes.

[00:01:07] Speaker 06:
If you find that any limitation is not literally satisfied, the case is over.

[00:01:10] Speaker 02:
And it will also eliminate the 252 question as well, right?

[00:01:15] Speaker 02:
There's no infringement.

[00:01:16] Speaker 02:
There's no reason to reach whether it applies to process claims.

[00:01:19] Speaker 06:
correct, it will moot the cross appeal.

[00:01:21] Speaker 06:
I urge the court, though, to resolve the claim construction dispute.

[00:01:26] Speaker 06:
And the claim construction dispute I urge because there is other litigation, even between the parties.

[00:01:32] Speaker 06:
And Judge Payne stated that litigation pending resolution of the claim construction dispute.

[00:01:38] Speaker 06:
And the claim construction dispute is front and center.

[00:01:41] Speaker 04:
Where does the claim?

[00:01:42] Speaker 04:
So even if we agree with the claim construction, I mean, you're right.

[00:01:47] Speaker 04:
We try to be conscious of what related cases are and not skirt it.

[00:01:50] Speaker 04:
But if there's really no reason to reach it because it has been reaching a conclusion on other grounds, it's a little aggressive, right, to just reach out there and start deciding other stuff?

[00:02:04] Speaker 06:
You can pick any of the limitations.

[00:02:08] Speaker 06:
And that would resolve the entirety of the appeal and would resolve the case.

[00:02:12] Speaker 00:
I mean, is it resolving if we determine non-infringement under one of the limitations?

[00:02:17] Speaker 00:
Resolving claim construction is just really an advisory opinion.

[00:02:21] Speaker 00:
And I know you just heard people like advisory opinions, but shouldn't we save it for a case where it's actually necessary to the resolution?

[00:02:30] Speaker 06:
Well, here it does reflect such a fundamental misunderstanding of the claim invention by the district court.

[00:02:36] Speaker 06:
The district court's opinion is premised on the claim construction decision.

[00:02:44] Speaker 06:
And it's on A11 of the district court's opinion.

[00:02:48] Speaker 06:
or page 9 of the opinion.

[00:02:49] Speaker 00:
Well, maybe you can convince Judge Payne to give you a different claim construction.

[00:02:54] Speaker 06:
Well, we could do that as well.

[00:02:57] Speaker 06:
But the key limitation is the delay limitation, which was added in the prosecution.

[00:03:01] Speaker 06:
And our Amazon device does not

[00:03:05] Speaker 06:
perform that determination set.

[00:03:08] Speaker 06:
That's a 107 word limitation.

[00:03:10] Speaker 02:
Hold on.

[00:03:11] Speaker 02:
Let me make sure I understand.

[00:03:12] Speaker 02:
Is the claim construction issue that in your wish list dreams of $292 bathing suits that you would, in fact, have us resolve the order of limitations?

[00:03:24] Speaker 02:
Is that the thing you'd want us to do?

[00:03:26] Speaker 02:
Or is it something related to determining a delay?

[00:03:29] Speaker 02:
What is that magic claim construction issue that in your wish list we're going to review?

[00:03:34] Speaker 06:
that the device must receive sound before any of the other processing steps can occur.

[00:03:41] Speaker 06:
It's that simple.

[00:03:43] Speaker 06:
And unfortunately, the district court wrote

[00:03:46] Speaker 06:
The court again rejects Amazon's arguments that the accused products were required to receive a target sound signal prior to the termination of a delay.

[00:03:56] Speaker 02:
And can I understand about the claim construction issue?

[00:03:59] Speaker 02:
Amazon, I think, is the argument only this question about whether the

[00:04:11] Speaker 02:
target signal has to be when it has to be received before or after, or are you suggesting that every one

[00:04:22] Speaker 02:
I guess what I'm trying to get at is sometimes people say all of the claim limitations have to be perceived in the exact order.

[00:04:28] Speaker 02:
And then other times they say, well, there are specific limitations that clearly the language surrounding them dictates a certain order to.

[00:04:36] Speaker 02:
I think your argument is the latter of those two.

[00:04:38] Speaker 02:
Am I wrong?

[00:04:39] Speaker 06:
Well, sufficient to resolve this appeal is that step two, the receiving step,

[00:04:44] Speaker 06:
must occur before the determining a delay step.

[00:04:48] Speaker 06:
So it's step two, must occur before step three.

[00:04:51] Speaker 06:
That is dispositive of this case based on the infringement theory that's being advocated by Vocal Life.

[00:04:58] Speaker 03:
The infringement theory dealing with the determining step.

[00:05:00] Speaker 06:
Correct.

[00:05:01] Speaker 03:
Which is one of five infringement theories.

[00:05:03] Speaker 06:
Correct.

[00:05:04] Speaker 06:
Vocalife implicated acts of Amazon in order to comply or try to attempt to show the determining step.

[00:05:12] Speaker 06:
The trouble is that the steps by Amazon occur years before the customer ever speaks to the device.

[00:05:19] Speaker 06:
So the infringement theory presented at trial was the customer is the direct infringer by speaking to the device.

[00:05:27] Speaker 06:
And so the speaking must occur before we go down the rest of the claim.

[00:05:32] Speaker 06:
And I think they agree on that, but they won't agree that the determining a delay step must occur after the receiving sound signals.

[00:05:41] Speaker 06:
But you are correct.

[00:05:43] Speaker 06:
This claim construction dispute need not be decided because we did present other lack of substantial evidence arguments on other limitations.

[00:05:54] Speaker 04:
So can you turn to one of those, the plurality of configurations one?

[00:05:59] Speaker 04:
And again, it's no fault of anyone's that you're relegated to only several pages on each of those, because there's so many issues, unfortunately, in this appeal.

[00:06:09] Speaker 04:
But the district court on Jamal referred to Doppler and MPAF, and he rested on Alexander's testimony.

[00:06:22] Speaker 04:
Why is that deficient?

[00:06:23] Speaker 04:
Substantial evidence is a pretty easy standard to meet.

[00:06:28] Speaker 06:
Because the claim language requires that the delay enables beamforming

[00:06:39] Speaker 06:
for said array of sound sensors in a plurality of configurations.

[00:06:45] Speaker 06:
And all Mick Alexander testified to was that the software is used in different devices with different configurations.

[00:06:56] Speaker 06:
This claim requires that the plurality of configurations be with the same sound sensors.

[00:07:04] Speaker 06:
And as the district court explained in his Markman opinion,

[00:07:07] Speaker 06:
that could occur if one of the sound sensors is turned off.

[00:07:10] Speaker 06:
And then you still would calculate delays with the remaining sound sensors and be able to calculate the delay and enable beamforming and then steer with the target sound signal in motion.

[00:07:25] Speaker 06:
And so just saying you can use it with different configurations in different products wouldn't comply with the claim language.

[00:07:33] Speaker 06:
The claim language requires that it be

[00:07:34] Speaker 06:
with said array of sound sensors.

[00:07:38] Speaker 06:
Single device.

[00:07:42] Speaker 04:
I'm just looking for a little more insight into why the district court was led astray.

[00:07:50] Speaker 04:
As you presented, at least, it seems like a fairly straightforward proposition.

[00:07:55] Speaker 04:
I wholly agree.

[00:07:57] Speaker 04:
Is it your view that he just misunderstood Alexander's testimony?

[00:08:03] Speaker 06:
I think he did.

[00:08:04] Speaker 06:
I think that's why I think the district court didn't understand the fundamentals of this claim invention and that it requires the sound in order to do the delay, in order to do the steering, in order to work in the plurality of configurations.

[00:08:19] Speaker 06:
It was just Mick Alexander found words that he thought were similar in some documents and persuaded the jury.

[00:08:26] Speaker 06:
And I think the district court wanted and upheld the jury verdict.

[00:08:30] Speaker 06:
But there are many reasons why there cannot be literal infringement by customers of this very detailed 330-word claim.

[00:08:38] Speaker 06:
We picked only five.

[00:08:40] Speaker 06:
We actually thought we'd narrow this.

[00:08:42] Speaker 06:
And we did narrow it because this is just fundamentally real-time computing, which is not what the little Amazon Echo that sells for a few bucks can do.

[00:08:51] Speaker 06:
This is real-time, very sophisticated processing that is not present in a device like ours, which simply hears the loudest noise and selects a fixed beam.

[00:09:02] Speaker 06:
Very simple device compared to this very detailed, very

[00:09:09] Speaker 06:
particular, not only does it require determining a delay, but determining delay in terms of the number of samples.

[00:09:15] Speaker 06:
This is a very narrow limitation.

[00:09:18] Speaker 06:
And of course, we don't do the delays, and we certainly don't do it in the number of samples.

[00:09:23] Speaker 06:
And so there's no such determination or calculation at any time.

[00:09:26] Speaker 04:
There were counterclaims here, right, that were dismissed without prejudice?

[00:09:31] Speaker 04:
Invalidity counterclaims in this case?

[00:09:33] Speaker 06:
Yeah, the invalidity issues were not appealed.

[00:09:37] Speaker 06:
That's for the patent office.

[00:09:40] Speaker 06:
So we're only here on the jury verdict of literal infringement, direct infringement by the user.

[00:09:47] Speaker 06:
The user, Amazon, is only alleged to induce the user's direct infringement.

[00:09:53] Speaker 06:
And if there are no further questions, I'll reserve the rest of my time for rebuttal.

[00:09:57] Speaker 01:
OK.

[00:09:58] Speaker 01:
Thank you, Mr. Ray.

[00:10:01] Speaker 01:
Mr. Fabricant?

[00:10:03] Speaker 01:
Am I saying your name wrong?

[00:10:05] Speaker 01:
Fabricant?

[00:10:05] Speaker 01:
How do you say your name?

[00:10:06] Speaker 01:
Fabricant.

[00:10:07] Speaker 01:
Fabricant.

[00:10:11] Speaker 05:
Good morning, Your Honors.

[00:10:12] Speaker 05:
May it please the court?

[00:10:15] Speaker 05:
This was a very hard-fought trial.

[00:10:18] Speaker 02:
Oh, counsel, they all are.

[00:10:20] Speaker 02:
Hey, claim construction.

[00:10:22] Speaker 02:
I feel like there is substantial evidence for the jury to find infringement of the element regarding timing, regardless of what the construction is.

[00:10:32] Speaker 02:
So is there any reason for us to decide that construction?

[00:10:37] Speaker 05:
Well, I think there is a reason to decide the construction.

[00:10:40] Speaker 05:
Obviously, if the court is satisfied that it would be irrelevant to the ultimate decision whether the construction was upheld or not, then we don't have to pursue that.

[00:10:51] Speaker 05:
I would say, however, that I think it's important to understand the non-infringement arguments on this appeal, that Judge Gilstrap got the construction completely right.

[00:11:01] Speaker 05:
And the reason I say that is it's in the claims

[00:11:05] Speaker 05:
We started at a markman with Amazon taking the position that it had to be in the exact order of the claims as written, the order of steps.

[00:11:14] Speaker 05:
Then when Judge Gilstrap clearly saw that they had inconsistent arguments because they said at the claim construction hearing, well, not everyone has to be particularly in order.

[00:11:24] Speaker 05:
You can flip the determining delay step.

[00:11:26] Speaker 05:
with the estimating step.

[00:11:28] Speaker 05:
That would be OK.

[00:11:29] Speaker 05:
You could flip some of these steps, and then they focused only on the first and second step, receiving and determining a delay.

[00:11:36] Speaker 05:
So they had inconsistency in their own argument.

[00:11:39] Speaker 05:
But I think most important what the court saw was the words of the claims themselves.

[00:11:44] Speaker 05:
The determining a delay element of claim one

[00:11:48] Speaker 05:
specifically provides that there will be aspects of the determination which will take place before the receipt of the sound signal.

[00:11:57] Speaker 05:
It's in the claim language.

[00:11:58] Speaker 05:
In fact, the claim language specifically.

[00:12:01] Speaker 02:
A delay based on an angle can't be determined until the angle itself is formed, right?

[00:12:05] Speaker 05:
I disagree, Your Honor.

[00:12:06] Speaker 05:
What?

[00:12:08] Speaker 05:
Here's why I disagree.

[00:12:11] Speaker 05:
There are angles that can be predetermined.

[00:12:14] Speaker 05:
In fact, the claim says,

[00:12:16] Speaker 05:
a predefined angle in the element determining a delay.

[00:12:22] Speaker 05:
It states, an origin of said array of said sound sensors as a function of distance between each of said sound sensors.

[00:12:30] Speaker 05:
That could be determined in advance, and in fact was determined in advance by Amazon, as the code reflects.

[00:12:37] Speaker 05:
And then it states, and said original

[00:12:42] Speaker 05:
A predefined angle between each of said sound sensors and a reference axis.

[00:12:48] Speaker 05:
A predefined angle.

[00:12:50] Speaker 05:
That's what's in the code.

[00:12:51] Speaker 05:
That's what Mr. McAlexander testified to.

[00:12:54] Speaker 05:
That would be defined before the receipt of the target sound signal.

[00:12:58] Speaker 05:
Now, I want this court to understand our position clearly.

[00:13:02] Speaker 05:
We are not saying, and we have never said in this case, nor a trial, that the determination step is completed.

[00:13:10] Speaker 05:
before the receipt of the target sound signal.

[00:13:13] Speaker 05:
We have never said that.

[00:13:14] Speaker 05:
What the code showed and what we presented to trial was that there are aspects of the determination which do, in fact, take place in the laboratory before that code is loaded and compiled and loaded onto the device.

[00:13:28] Speaker 05:
Those are those predefined angles.

[00:13:31] Speaker 05:
Those are those measurements.

[00:13:32] Speaker 05:
Once the customer says, Alexa,

[00:13:36] Speaker 05:
and the device wakes up, that's the receipt of the sound signal, the determination of the delay is then made.

[00:13:42] Speaker 05:
And the azimuth angle, your honor, is determined.

[00:13:46] Speaker 05:
That's different than the predefined angle.

[00:13:49] Speaker 05:
So we've never taken the position.

[00:13:50] Speaker 05:
And that's why it may not be important that the court resolve the claim construction issue order of steps, because we presented substantial evidence regardless that Amazon performed these steps.

[00:14:05] Speaker 05:
It was never our position at trial that the determination step occurred before the receipt of the sound signal.

[00:14:14] Speaker 05:
And I think that's critical.

[00:14:16] Speaker 05:
Now, I think the court has seen that every single aspect of this claim has been challenged by Amazon on this appeal.

[00:14:22] Speaker 05:
For example, the adaptive beam former, which they denied throughout the entire trial, is replete throughout all of their source code and documents, including a peer review paper submitted by the very engineers who designed this published to the world as to how their device worked.

[00:14:40] Speaker 05:
Mr. Alexander relied on that document.

[00:14:42] Speaker 05:
They also run from.

[00:14:45] Speaker 05:
a 74-page Amazon copyrighted publication that was published on Amazon website, which teaches how this whole system works.

[00:14:54] Speaker 05:
Mr. Alexander relied on that.

[00:14:56] Speaker 05:
That shows the calculation of the delay.

[00:14:59] Speaker 05:
That shows the angle.

[00:15:01] Speaker 05:
He also relied on the source code.

[00:15:03] Speaker 05:
I think very important to understand here when we get to the non-imprisonment arguments, the only one who introduced source code at this trial was Vocalite.

[00:15:11] Speaker 05:
And at the end of the deliberations, the jury asked, in the middle of the deliberations, they had a question.

[00:15:17] Speaker 05:
They wanted to see the source code.

[00:15:19] Speaker 05:
And the only source code was Vocalife's presentation.

[00:15:24] Speaker 05:
The reason that's important, they didn't try to show the code that supposedly would prove non-infringement.

[00:15:31] Speaker 02:
My kiddos would tell me to advise you to have some soche.

[00:15:34] Speaker 02:
You're being a little loud and yelling at us.

[00:15:36] Speaker 05:
Apologizer.

[00:15:39] Speaker 05:
I was getting enthusiastic.

[00:15:41] Speaker 01:
Yes, just a little too enthusiastic.

[00:15:42] Speaker 01:
Dial it down.

[00:15:45] Speaker 05:
Your Honor, it does tie back to the claims of construction, because I think with this many aspects of those ordered steps, to have ordered the steps as Amazon had asked the court to do would have been error.

[00:16:01] Speaker 05:
But it really comes down to the issue of non-infringement.

[00:16:06] Speaker 05:
was substantial evidence on each of these elements presented.

[00:16:11] Speaker 05:
And this, I think, in the briefing and all of the exhibits which are attached to the appendix, Mr. Alexander points to all of these variance documents, not just the source code.

[00:16:22] Speaker 05:
And we're talking about many renditions of source code.

[00:16:25] Speaker 05:
He points to the actual files.

[00:16:27] Speaker 05:
He points in four different versions of code.

[00:16:30] Speaker 05:
He points to the firmware that has been compiled and put on the device.

[00:16:34] Speaker 05:
He points to the peer review article written by the Amazon engineers.

[00:16:38] Speaker 05:
He points to the publication.

[00:16:41] Speaker 05:
He points to other lab books, lab notebooks, that were produced.

[00:16:47] Speaker 05:
Two specific lab notebooks that specifically in detail discuss the front end of the audio.

[00:16:54] Speaker 05:
Words like,

[00:16:57] Speaker 05:
sound localization unit.

[00:17:00] Speaker 05:
Those are used in those documents.

[00:17:02] Speaker 05:
The claim says if you have a sound localization unit, then you have spatial location.

[00:17:09] Speaker 05:
Those words are used in the Amazon documents.

[00:17:12] Speaker 05:
Same thing with adaptive beamforming.

[00:17:14] Speaker 05:
Those words are used in the Amazon documents.

[00:17:18] Speaker 05:
And the testimony of the critical key corporate witness of Amazon at trial when confronted with this adaptive beamforming language

[00:17:27] Speaker 05:
was, well, it's not real adaptive beamforming.

[00:17:32] Speaker 05:
Those were the words.

[00:17:33] Speaker 05:
It's not real adaptive beamforming.

[00:17:35] Speaker 05:
It's in the code.

[00:17:36] Speaker 05:
It's in the description of the algorithms.

[00:17:38] Speaker 05:
It's in all of our publications.

[00:17:40] Speaker 05:
But it's not real.

[00:17:42] Speaker 05:
And therefore, I would say on the evidence, there is substantial evidence as to each and every one of these elements, including the delay determination, the steering connectivity pattern, the spatial location, and the configuration.

[00:17:59] Speaker 05:
All of that, and Mr. McAlexander, in very lengthy testimony, went through, pointed to the files in the code or these publications to address where this evidence was found.

[00:18:12] Speaker 05:
And I think the jury, importantly, this was an indirect infringement case.

[00:18:19] Speaker 05:
Our case was that the customer who used the device and triggered the device by saying, Alexa.

[00:18:27] Speaker 02:
How is the determining delay in the Echo device enabled for multiple configurations?

[00:18:33] Speaker 05:
It's enabled for multiple configurations, Your Honor, because there can be any number of microphones in the device.

[00:18:40] Speaker 05:
This is not a device that has a specific requirement that it have three microphones.

[00:18:44] Speaker 05:
The testimony was cleared.

[00:18:45] Speaker 05:
It can have between two and eight microphones.

[00:18:47] Speaker 05:
It has to have more than one.

[00:18:49] Speaker 05:
It could have multiple microphones.

[00:18:51] Speaker 05:
The code was designed and the claim was written so that it would cover

[00:18:55] Speaker 05:
multiple variable configurations, whether it's a two or four.

[00:18:59] Speaker 04:
But that doesn't mean that the same code is loaded onto products with different microphone configurations, does it?

[00:19:05] Speaker 05:
Not necessarily, no.

[00:19:07] Speaker 05:
In other words, there is the same code.

[00:19:09] Speaker 04:
And isn't that what you had to show?

[00:19:12] Speaker 05:
No, the code is loaded on multiple products with varying microphones.

[00:19:19] Speaker 05:
That's exactly what happens.

[00:19:20] Speaker 05:
That's exactly what Mr. McAlexander found.

[00:19:22] Speaker 05:
That's what the Amazon witnesses testified to, that their products had multiple microphones.

[00:19:28] Speaker 05:
In fact, I think the exact testimony was between two and eight, and that this same code operates regardless of the configuration.

[00:19:37] Speaker 05:
That was the Amazon testimony, as well as what's reflected in the source code, as well as what Mr. McAlexander found in his expert testimony.

[00:19:43] Speaker 00:
But isn't there only one configuration on the device?

[00:19:47] Speaker 00:
There's different devices that have different configurations.

[00:19:51] Speaker 00:
But the actual device sold may have two, may have four, may have eight.

[00:19:56] Speaker 00:
But there's not multiple configurations on that device.

[00:20:00] Speaker 05:
Well, there could be in these situations where not all of the microphones are operating, or certain microphones aren't receiving the sound.

[00:20:07] Speaker 05:
uh... or performing as as as designed but i don't believe the patent the claim or the patent itself there is nowhere within the specification of the intrinsic record of this patent which requires that the multiple plurality of configurations be solely directed to an individual device that that's i don't believe anywhere in the intrinsic record

[00:20:30] Speaker 05:
If your honours have no further questions on this portion, I'll reserve my time for the cross appeal issues.

[00:20:37] Speaker 05:
Thank you.

[00:20:37] Speaker 01:
Mr. Ray, you have rebuttal.

[00:20:44] Speaker 00:
If you want to raise your cross appeal issue, you have to argue them now.

[00:20:50] Speaker 00:
You don't get the last word on here.

[00:20:52] Speaker 00:
I mean, you get the last word.

[00:20:53] Speaker 00:
Sorry.

[00:20:53] Speaker 00:
All right.

[00:20:55] Speaker 00:
I apologize.

[00:20:58] Speaker 05:
You don't have to argue with him.

[00:20:59] Speaker 05:
He doesn't have to tell us about it.

[00:21:00] Speaker 05:
I will briefly address it.

[00:21:04] Speaker 05:
The first issue is the Section 252 issue with respect to the statutory language.

[00:21:11] Speaker 05:
And I think the best argument here is that there has been no statutory construction, as we believe this court should engage in.

[00:21:18] Speaker 05:
We have two different sentences of the second paragraph of 252.

[00:21:22] Speaker 05:
The first clearly creates

[00:21:24] Speaker 05:
absolute intervening rights for a specific thing when a specific thing is identified without question.

[00:21:32] Speaker 05:
The second sentence gives the district court equitable rights under certain circumstances to extend that, and the word processes are used in that second sentence.

[00:21:44] Speaker 05:
I think that in and of itself indicates that Congress's intent was not to include processes or methods in the absolute intervening right section of that provision, not unlike in the 287 statute dealing with marking, where it's clear that a method need not be marked.

[00:22:05] Speaker 05:
And so our argument essentially under 252 is a statutory construction argument.

[00:22:11] Speaker 05:
We don't think it has really been resolved head on by any Federal Circuit decision that we can find.

[00:22:17] Speaker 05:
The second argument for the cross appeal is the courts prohibiting the plaintiff from presenting its damages prior to the filing of the complaint based on inducement in light of willful blindness.

[00:22:35] Speaker 05:
And here we think the court erred because we presented an extensive willful blindness case which the court allowed on willful infringement.

[00:22:43] Speaker 05:
And that record was presented.

[00:22:45] Speaker 05:
But the court allowed us to present that on willful infringement and granted the motion prohibiting us from presenting the same evidence and seeking those additional damages.

[00:22:54] Speaker 05:
Between the time of the inducement prior to the complaint, we were prohibited from presenting those damages.

[00:23:01] Speaker 02:
Why was the only evidence you produced was evidence about knowledge of the 756 patent?

[00:23:07] Speaker 02:
That's completely irrelevant to willful blindness of the 049 patent.

[00:23:10] Speaker 02:
They're different patents.

[00:23:12] Speaker 05:
Well, Your Honor, we disagree, because this was a long history, as was set forth in the briefs beginning in 2011, running for many years with the relationship between the inventors and Amazon.

[00:23:24] Speaker 05:
And while it's true that they were put on specific notice of the original patent in 2014.

[00:23:30] Speaker 02:
And it was surrendered.

[00:23:32] Speaker 05:
And surrendered.

[00:23:35] Speaker 02:
So you had a patent.

[00:23:36] Speaker 02:
It was surrendered.

[00:23:37] Speaker 02:
Why does that mean they're willfully blind that some reissue came out later?

[00:23:41] Speaker 05:
But Your Honor, the evidence at trial was that the corporate policy of Amazon, as testified to by the corporate representatives, was for the employees to specifically disregard any information.

[00:23:53] Speaker 02:
Well, you're saying this was at trial.

[00:23:54] Speaker 02:
This was ruled on at summary judgment.

[00:23:56] Speaker 02:
Whatever evidence was at trial was not part of the record at summary judgment.

[00:24:00] Speaker 02:
You had to overcome summary judgment, right?

[00:24:03] Speaker 02:
What was your evidence at summary judgment?

[00:24:05] Speaker 02:
That's the question before us.

[00:24:07] Speaker 02:
Not did something come out at trial that shows you might have been able to overcome summary judgment, but didn't.

[00:24:13] Speaker 05:
The evidence of summary judgment was that there had been this long history of relationship.

[00:24:17] Speaker 05:
They were aware of the original patent.

[00:24:19] Speaker 05:
And even though it was surrendered, their corporate policy

[00:24:23] Speaker 05:
was not to follow these patents.

[00:24:25] Speaker 05:
They instructed their employees to, in effect, close their eyes.

[00:24:30] Speaker 05:
This is a situation where they receive complaints and protests by these inventors because when the product launched, they were very upset because they had had meetings with Amazon.

[00:24:40] Speaker 02:
In response to the summary judgment, did you introduce evidence at that time that the Amazon employees were told, as you just said, not to follow the patents?

[00:24:52] Speaker 05:
That came out of trial, Your Honor.

[00:24:55] Speaker 02:
So everything you just said, it was completely not in existence in your summary judgment.

[00:24:59] Speaker 02:
So how could the court have erred in granting summary judgment?

[00:25:03] Speaker 05:
The history of the relationship between the parties.

[00:25:06] Speaker 02:
You would like us to hold its improper for a court to grant summary judgment when all you've proven is knowledge of a patent that was surrendered.

[00:25:13] Speaker 02:
You want us to create an affirmative obligation that companies are required and willfully blind if they don't continue to spend lots of dollars following every surrendered patent?

[00:25:24] Speaker 02:
It's absurd.

[00:25:25] Speaker 02:
That's an absurd request on your part.

[00:25:28] Speaker 05:
respectfully would state that in a situation where a company invites these small companies in to see their technology, take their presentations, listen to their presentations, have the engineers of the company sit and develop a product which is then launched, which is, as we've alleged in this case, infringing on the patented technology.

[00:25:51] Speaker 05:
And the employees are instructed in situations like that, that they can not have to follow the... None of which was in your summary judgment response.

[00:26:02] Speaker 02:
Okay, I think your time is up.

[00:26:04] Speaker 02:
Thank you, Your Honor.

[00:26:05] Speaker 02:
Mr. Ray, you have some rebuttal time?

[00:26:08] Speaker 06:
Thank you, Your Honor.

[00:26:10] Speaker 06:
With regard to the claim and the claim construction, I don't think we could have been any more clear below as to the sequence of the steps than in our demonstras, which are set forth in Joint Appendix 1097 and 1098.

[00:26:25] Speaker 06:
And we actually show with arrows what step follows which step.

[00:26:30] Speaker 06:
And there's only two steps where there's any ambiguity.

[00:26:35] Speaker 06:
But those weren't relevant for the infringement and for the presentation of the evidence, because they agreed in the district court that the receiving step must occur before the determining step.

[00:26:47] Speaker 06:
And they only disputed steps at the bottom of the claim.

[00:26:51] Speaker 06:
And this is shown in Joint Appendix 1098.

[00:26:55] Speaker 06:
So I disagree with the history of the claim construction dispute.

[00:26:59] Speaker 02:
For what it's worth, I think you're right.

[00:27:01] Speaker 02:
I think that the receiving step has to occur before the determining step.

[00:27:04] Speaker 02:
But I just don't see how that resolves the case.

[00:27:06] Speaker 02:
And I feel like there are other things that might resolve the case.

[00:27:11] Speaker 02:
I just gave you a record.

[00:27:13] Speaker 06:
Yes.

[00:27:13] Speaker 06:
And the way it makes it easiest to resolve the case is, as you indicated, you do need the sound to have the angle in the next step.

[00:27:20] Speaker 06:
And with regards to the plurality of configurations, the reason why that's another good ground is Mr. Alexander agreed.

[00:27:27] Speaker 02:
But I can resolve the plurality of configurations without touching the order of steps.

[00:27:32] Speaker 06:
That's correct.

[00:27:33] Speaker 02:
Yeah.

[00:27:33] Speaker 06:
And we gave five grounds that you could resolve without going to the order of steps.

[00:27:38] Speaker 02:
I know.

[00:27:38] Speaker 02:
And not all of them were as good as the plurality of configurations.

[00:27:42] Speaker 02:
Oh, I like that.

[00:27:43] Speaker 02:
You might want to be just a tiny bit more selective.

[00:27:45] Speaker 06:
I think number of samples was my favorite, so we all had a debate, and we had disagreements on which one was best.

[00:27:51] Speaker 06:
But on the plurality configurations, if we're going to go there, Mr. McAlexander repeatedly admitted that the weighting factors and the simulation model determinations were specific to one particular microphone geometry.

[00:28:05] Speaker 06:
And those are at Joint Appendix 6325, 6326, 6327, twice on 2728, and 6437, where he repeatedly admitted that the devices are configured for one and one only.

[00:28:22] Speaker 02:
And when the configuration of the microphones change,

[00:28:25] Speaker 02:
there's no evidence that it can determine the delay.

[00:28:28] Speaker 06:
Correct.

[00:28:28] Speaker 02:
That's the problem.

[00:28:29] Speaker 06:
Correct.

[00:28:30] Speaker 02:
I got it.

[00:28:31] Speaker 06:
Thank you very much.

[00:28:32] Speaker 02:
Thank you, Mr. Ray.

[00:28:33] Speaker 02:
Thank you, Mr. Fabricant.

[00:28:35] Speaker 02:
The case is taken under submission.

[00:28:39] Speaker 02:
He didn't touch upon your cross appeal.

[00:28:41] Speaker 02:
So we didn't give you rebuttal.

[00:28:43] Speaker 02:
He didn't touch your cross appeal.

[00:28:44] Speaker 02:
I understand.

[00:28:45] Speaker 02:
I just wanted to explain.

[00:28:47] Speaker 02:
Thanks.