[00:00:00] Speaker 03:
All right, our next case for argument is 22-1620, Acceleron versus Dell.

[00:00:06] Speaker 03:
Mr. Klein, please proceed.

[00:00:08] Speaker 05:
May it please the court.

[00:00:10] Speaker 05:
I would like to address the Ketrus 9000 issue first.

[00:00:13] Speaker 05:
And this court should reverse the trial court's denial of Acceleron's motion to exclude the admission of the built for trial Ketrus 9000 that was materially different than the beta Ketrus 9000 that was reported to be prior art.

[00:00:35] Speaker 05:
The Tetris 9000 that was reported as prior art in the year 2000 did not hold, and the documents confirmed that.

[00:00:46] Speaker 05:
The trial court admitted or acknowledged

[00:00:50] Speaker 05:
This is in the blue brief on page 12, that there were certain functionalities, and this was in regard to the estoppel motion in denying Acceleron's motion to stop Dell from relying upon the physical system after we had gone through the IPR.

[00:01:07] Speaker 05:
The trial court acknowledged that the physical system built for trial or built after the fact had certain features and functionalities not in the documents.

[00:01:19] Speaker 05:
Now this followed the argument from Dell that the physical system was a superior reference to the documents.

[00:01:28] Speaker 05:
And when we look at the documents, indeed they say that it does not hold the Tetris 9000

[00:01:36] Speaker 05:
from the alleged time as prior art did not poll, but used a different system for data collection, namely interrupts.

[00:01:46] Speaker 05:
Now, we'll talk perhaps about interrupts.

[00:01:48] Speaker 04:
Can we talk about whether you forfeited the right to object to the admission of the physical version into evidence?

[00:01:55] Speaker 04:
My understanding is you did make this objection, very specific objection to this physical version, to the magistrate judge.

[00:02:04] Speaker 04:
And then the magistrate judge

[00:02:06] Speaker 04:
disagreed with you.

[00:02:07] Speaker 04:
And then, of course, you raised your objections to the magistrate, to the district court, but you didn't include this particular objection, this particular argument.

[00:02:19] Speaker 04:
And so why isn't it true that under our case law, if you haven't re-raised that objection to the district court, you've essentially forfeited it?

[00:02:30] Speaker 05:
Right.

[00:02:31] Speaker 05:
The argument was not the focus in the objection.

[00:02:35] Speaker 05:
I acknowledge that.

[00:02:37] Speaker 05:
It is cited back to the briefs.

[00:02:39] Speaker 05:
And it's made both in the, as you know, Judge Chen, in the initial brief and in the reply.

[00:02:44] Speaker 05:
However, it is intertwined with the hardware argument that was made in the objection to the special match.

[00:02:53] Speaker 04:
But let's assume for the moment that in your objection that you raised

[00:02:59] Speaker 04:
to the district court.

[00:03:00] Speaker 04:
And I'm the district court judge.

[00:03:02] Speaker 04:
And I would read that of what you were unhappy with, what the magistrate or special master did.

[00:03:09] Speaker 04:
And I don't see anything about this whole question about software.

[00:03:15] Speaker 04:
So I don't rule on that, because it wasn't raised to me.

[00:03:20] Speaker 04:
Why isn't it then just gone?

[00:03:22] Speaker 05:
Well, the trial court actually acknowledged that any issue that Acceleron desires to raise could be raised at trial.

[00:03:29] Speaker 04:
The trial court in this decision did not say... Yes, but any issue that was raised didn't include the software argument.

[00:03:37] Speaker 04:
Well, it did, Your Honor, because even in the objection... Maybe in the most elliptical way, but I guess what I'm trying to say is...

[00:03:44] Speaker 04:
When I looked at what your motion said, I didn't see anything.

[00:03:51] Speaker 04:
I mean, if I was the district court judge, I wouldn't even understand that there was some kind of contest about the beta version versus the software and the physical version.

[00:04:01] Speaker 05:
I think the statement I'm referring to where the trial court overruled the objection from Excelleron from the special master is when the trial courts does reference any objection, keeping in mind that this was the third time this issue had come before the court.

[00:04:17] Speaker 05:
it had been briefed and litigated to death.

[00:04:21] Speaker 05:
And in fact, the special master in denying the issue in the motion in Lemony referenced both the prior motion to strike ruling from the court and the district court's denial of summary judgment.

[00:04:33] Speaker 05:
So I think that- Three or two.

[00:04:35] Speaker 01:
I mean, it was the motion for partial summary judgment that you brought.

[00:04:39] Speaker 05:
That's right.

[00:04:40] Speaker 01:
And then this whole question about anticipation because of this whole problem was up and ball of wax.

[00:04:47] Speaker 01:
the trial judge and the special master say, well, that's a fact issue.

[00:04:53] Speaker 01:
Let the jury decide.

[00:04:56] Speaker 05:
Right.

[00:04:56] Speaker 05:
That's what the court says?

[00:04:57] Speaker 01:
That's what the court says, too.

[00:04:58] Speaker 01:
So it's a jury issue.

[00:04:59] Speaker 01:
Let the jury decide.

[00:05:03] Speaker 01:
And so my point is, you're challenging here the ruling on the motion in limiting.

[00:05:10] Speaker 01:
That's correct.

[00:05:10] Speaker 01:
You don't have a sufficient evidence of J-MAL on the jury verdict that was invalid.

[00:05:17] Speaker 01:
So the standard of review on the issue in front of us is abuse of discretion.

[00:05:23] Speaker 01:
Right?

[00:05:23] Speaker 05:
It is, Your Honor.

[00:05:24] Speaker 01:
And that's not a standard of review that's very friendly to you.

[00:05:27] Speaker 01:
If you had been challenging the jury verdict, you'd have a more friendly standard of review.

[00:05:32] Speaker 01:
Because the patent would have been invalidated, and is there substantial evidence to show clear and convincing evidence of invalidity?

[00:05:39] Speaker 01:
And that whole analysis is in front of us.

[00:05:42] Speaker 01:
And so from my perspective, whether or not you waive

[00:05:46] Speaker 01:
software argument or not, you're stuck with the rationale from the denial of the motion, which was, here's a fact issue.

[00:05:53] Speaker 01:
The evidence that's being offered isn't being, you're not trying to say it doesn't qualify under Daubert.

[00:06:02] Speaker 01:
The evidence, and the judge says, well, the jury can decide one way or the other.

[00:06:08] Speaker 01:
And what grounds do I have to reverse that judgment?

[00:06:13] Speaker 01:
which was the emotional limiting is denied, because it's a fact question.

[00:06:19] Speaker 01:
Let the jury decide.

[00:06:21] Speaker 05:
Because, Your Honor, we are saying that the admission of the Ketchers 9000 built for trial was unduly and unfairly prejudicial to acceleron as a result.

[00:06:32] Speaker 01:
Any piece of evidence that is subject to doubt has that capacity.

[00:06:38] Speaker 05:
And in this case, it was unfairly prejudicial.

[00:06:41] Speaker 05:
And I do believe it was.

[00:06:42] Speaker 01:
Why more so than any other piece of evidence that may or may not turn the verdict against your client?

[00:06:48] Speaker 05:
Because this device was materially different.

[00:06:51] Speaker 05:
It was not the same.

[00:06:52] Speaker 05:
It had different software that did different things.

[00:06:56] Speaker 05:
And that was the issue.

[00:06:58] Speaker 01:
But that's the fact question.

[00:07:00] Speaker 01:
And you had evidence in front of the jury.

[00:07:03] Speaker 01:
You've given a full opportunity to put in your evidence saying, look, this isn't the same machine.

[00:07:09] Speaker 01:
It's run differently.

[00:07:10] Speaker 01:
The other side put in its testimony as to why its two people and its expert thought it was the same.

[00:07:17] Speaker 01:
And the jury made a decision.

[00:07:18] Speaker 01:
And you're not challenging the jury verdict.

[00:07:21] Speaker 05:
We are to the extent that it is tainted.

[00:07:24] Speaker 01:
No, you're not.

[00:07:24] Speaker 01:
You didn't.

[00:07:25] Speaker 01:
You can't say that.

[00:07:26] Speaker 01:
Because there's a way to challenge the jury verdict, which is in J-Mall.

[00:07:30] Speaker 01:
And you didn't file that.

[00:07:33] Speaker 01:
You chose instead to attack the admission of the evidence as a matter of a motion and limiting upfront the trial judges trying to decide what evidence is going to come in, right?

[00:07:44] Speaker 01:
The judge has already seen it once in terms of your partial motion for summary judgment, right?

[00:07:53] Speaker 01:
Help me out.

[00:07:54] Speaker 01:
How can I say?

[00:07:56] Speaker 01:
I mean, it's a strange world.

[00:08:00] Speaker 01:
when you can take a piece of evidence that didn't exist and create it out of whole cloth, you know what I mean?

[00:08:06] Speaker 01:
And then say, well, so our case law allows you to do that.

[00:08:10] Speaker 05:
And we're saying the prejudicial effect, it was substantially prejudicial for that piece to come in and to be relied upon to show something that does not exist, allegedly exists.

[00:08:21] Speaker 01:
But you're actually saying that on the motion for personal summary judgment of non-invalidity,

[00:08:29] Speaker 01:
No reasonable juror could have found these claims invalid.

[00:08:33] Speaker 01:
That's what your summary judgment motion was trying to establish.

[00:08:36] Speaker 05:
That is what we tried to establish in the court.

[00:08:39] Speaker 01:
But you're not appealing that.

[00:08:41] Speaker 05:
Well, the rationale for that was pulled in by the special master in regard to the Meyer-Bodem saying that one was just like the other, and in fact, it's not.

[00:08:50] Speaker 05:
In the Meyer case, it was the plunger, and you can look at it.

[00:08:53] Speaker 01:
I don't want to take up too much of your time, because I mean, this issue is very important, because if you lose on this issue, if the catcher goes in, claim 20 is invalid, and you're not challenging that, and that makes the argument.

[00:09:05] Speaker 05:
It does.

[00:09:06] Speaker 05:
It does.

[00:09:08] Speaker 05:
To recap, I'd like to hit this.

[00:09:10] Speaker 03:
To follow up just on that for one second, just to make sure I understand procedurally, if you don't end up prevailing on the Ketrus 9000 argument, either the forfeiture point or on the merits directly of it that promotes the infringement issue, is that right?

[00:09:25] Speaker 03:
We don't have a separate argument apart from this on infringement.

[00:09:29] Speaker 05:
I think that's right, Your Honor, because the infringement issue comes from the construction of the term polls.

[00:09:35] Speaker 05:
And I don't know that the court would get there if it's not going to do it.

[00:09:39] Speaker 01:
Well, if your claim is invalid, I mean, you're not making a separate argument that a

[00:09:43] Speaker 01:
A verdict that you didn't infringe somehow makes you a nicer citizen or whatever, right?

[00:09:48] Speaker 05:
We are not.

[00:09:49] Speaker 05:
We are focusing on the catcher's issue first.

[00:09:52] Speaker 05:
And then the polling issue, if the court changes the claim construction of polling.

[00:09:56] Speaker 04:
Could you speak to the absence of a 50B motion on this question?

[00:10:03] Speaker 05:
On the question of?

[00:10:05] Speaker 04:
Of this invalidity argument.

[00:10:10] Speaker 05:
I think that it was a rightness issue, or whether the issue had been preserved.

[00:10:15] Speaker 05:
And I'm not actually sure, as I think back to that, what may have gone into why the challenge that we have before us was and wasn't selected.

[00:10:26] Speaker 05:
But with regard to why the catcher's and the motion limiting issue is presented to the court is because it's different.

[00:10:34] Speaker 05:
And as far as to your point about should this be the determination of the jury, the court decided that it was substantially the same based on what the court heard.

[00:10:42] Speaker 05:
But the court, as we put in the wreath, relied on documents that show exactly the opposite.

[00:10:49] Speaker 05:
And so it never should have gone before the jury.

[00:10:51] Speaker 05:
And without it, Dell has nothing to show that claim 20 is anticipated.

[00:10:55] Speaker 05:
by the prior device.

[00:10:57] Speaker 05:
So this gets to your point about would claim 20 still be invalid.

[00:11:02] Speaker 05:
Without that device at trial, it can't.

[00:11:04] Speaker 01:
No, I don't think anybody's arguing that the invalid determination turns on that piece of evidence.

[00:11:11] Speaker 01:
Right.

[00:11:11] Speaker 05:
Well, I just wanted to be clear about that.

[00:11:12] Speaker 01:
No, I know that.

[00:11:13] Speaker 01:
But if the claim is invalid, then there can't possibly be any infringement.

[00:11:19] Speaker 05:
If I'd like to turn to willfulness in a few moments I have.

[00:11:23] Speaker 04:
I just want to make sure I understand on the invalidity question and this is the only issue we really have to decide is this

[00:11:32] Speaker 04:
motion eliminate objection first whether it was forfeited if not forfeited them was it properly admitted under the abuse of discretion standard because if we conclude that we're not going to overturn its admission this whole validity issue is over with because there was no fifty-fifty motion there was no jamal fifty-fifty motion uh... challenging the invalidity verdict i think that may be correct okay and and

[00:12:00] Speaker 05:
As I stand here now, Your Honor.

[00:12:03] Speaker 03:
Willfulness is with regard to Claim 3, right?

[00:12:05] Speaker 03:
Not Claim 20.

[00:12:05] Speaker 03:
So why don't you get to willfulness?

[00:12:07] Speaker 03:
Because that is still an issue regardless of what happens to Claim 20.

[00:12:10] Speaker 05:
With regard to willfulness, the trial court erred in prohibiting the accelerant from presenting its willfulness case to the jury, such that the court should reverse and remand.

[00:12:21] Speaker 05:
Now with regard to Claim 20, it was never tried on infringement.

[00:12:24] Speaker 05:
So if the court does decide that the catcher's issue

[00:12:27] Speaker 05:
goes Acceleron's way, claim 20 has never been tried, and the willfulness issue would be tried there.

[00:12:32] Speaker 05:
But with regard to claim three, as the chief judge knows.

[00:12:34] Speaker 01:
You prevailed on one claim in your argument that should have been willful infringement.

[00:12:39] Speaker 01:
And the judge went through your argument and said, well, if I'm just measuring it as a matter of whether there's willful infringement, I look at the factors.

[00:12:46] Speaker 01:
I look at all these factors, and I say, no, there's no willful infringement.

[00:12:50] Speaker 01:
Plus, he says, I've already decided I'm not going to enhance.

[00:12:54] Speaker 01:
So I'm not going to enhance.

[00:12:56] Speaker 01:
That takes care of it secondarily.

[00:12:59] Speaker 05:
What's interesting, Your Honor, and I would point the court to what the trial court said about inducement infringement.

[00:13:05] Speaker 05:
The trial court said that there is subjective intent to find inducement infringement, citing only two of the many factors that Acceleron put forward for willfulness.

[00:13:15] Speaker 05:
So it was good enough there, and that's very similar to what this court did in SRI, where it said an unchallenged finding of inducement infringement.

[00:13:23] Speaker 05:
While the standards are different,

[00:13:25] Speaker 04:
It was enough there to support a finding of willfulness, and we would submit here that... Right, but SRI also said a finding of induced infringement doesn't necessarily compel a finding of willful infringement.

[00:13:38] Speaker 04:
And I'm not suggesting that it does.

[00:13:39] Speaker 04:
And so there is some daylight.

[00:13:41] Speaker 04:
you know, a non-articulated daylight between inducement and willfulness.

[00:13:46] Speaker 04:
And so therefore, we can't say that the district court's decision on all these different issues is hopelessly in conflict with itself if it ruled one way on inducement and a different way on willfulness.

[00:13:59] Speaker 05:
I'm only drawing the comparison to SRI because there was an unchallenged

[00:14:05] Speaker 05:
finding of inducement infringement there.

[00:14:07] Speaker 05:
And I believe the court indicated that a reasonable jury could likewise find willfulness.

[00:14:13] Speaker 05:
Here, I think, is the same.

[00:14:15] Speaker 04:
I guess what I'm trying to say is if you're going to convince us that the district court was wrong in saying no reasonable fact finder could find willful infringement here, you would need something stronger than just pointing out that he did allow induced infringement to go to the jury.

[00:14:33] Speaker 05:
And on allowing the inducement, it was on two facts.

[00:14:36] Speaker 05:
We've cited many others, including the fact that the products weren't changed for a period of time.

[00:14:43] Speaker 05:
There were more products that came out based upon that technology.

[00:14:46] Speaker 05:
One of Dell's experts indicated that the accused device could very well meet one of the claim elements.

[00:14:53] Speaker 05:
There was no advice of counsel, and this case falls before 298, where that could at least be a factor.

[00:14:59] Speaker 05:
So these would be facts that a reasonable jury could point to.

[00:15:03] Speaker 05:
and considering the light most favorable to acceleron, could find willfulness.

[00:15:09] Speaker 05:
To the point of inducement, it's only to the fact that only two of the factors were allowed upon to find inducement.

[00:15:18] Speaker 04:
that was just in terms of what was your killer evidence of deliberate infringement here.

[00:15:24] Speaker 04:
It seemed like it was more around the edges.

[00:15:27] Speaker 04:
I mean, he gave some letters, but he didn't actually accuse them of infringement.

[00:15:32] Speaker 04:
Eventually, obviously, after the lawsuit was filed, they became aware of the patent.

[00:15:37] Speaker 04:
But that awareness of the patent is not alone enough to even credibly

[00:15:44] Speaker 04:
make it a jury question of whether they are deliberately and intentionally infringing that path.

[00:15:51] Speaker 05:
It is a totality of the circumstances.

[00:15:52] Speaker 05:
But to the point of what evidence the court might focus upon, the trial court focused on the fact that 11 of Dell's competitors were sued for products that were very similar.

[00:16:02] Speaker 05:
And at trial, it came out that Dell admitted its technical expert, one of its employees, acknowledged that his products were very similar to, I think, Hewlett Packard and IBM.

[00:16:12] Speaker 05:
So Dell knew that those products were accused of infringing.

[00:16:15] Speaker 05:
So that was enough for the trial court to say that that's objective intent for inducement.

[00:16:19] Speaker 05:
We think a reasonable jury could likewise rely on evidence like that and the other facts to likewise find.

[00:16:26] Speaker 03:
Well, you've used all your time.

[00:16:27] Speaker 03:
I'll restore some rebuttal time.

[00:16:29] Speaker 03:
Thank you, Your Honor.

[00:16:29] Speaker 03:
That's your proposing counsel.

[00:16:31] Speaker 03:
Mr. Fleming.

[00:16:32] Speaker 00:
Good morning, and may it please the court.

[00:16:34] Speaker 00:
Mark Fleming together with David Yen and William Conlon on behalf of Dell.

[00:16:38] Speaker 00:
I'll start with Ketris as well, because as the questions have indicated and as Mr. Crane has conceded, the Ketris issue is not only dispositive of the invalidity issue, but also of claim construction and infringement.

[00:16:49] Speaker 00:
And the Ketris issue, the objection that's being raised before this court, is twice forfeited and twice harmless.

[00:16:55] Speaker 00:
The first forfeiture problem is that Acceleron did not raise the difference between the software versions that it's now arguing in its objections from the special master to the district court.

[00:17:04] Speaker 00:
The secondary forfeiture problem is that the specific arguments that they make in their briefing, you didn't hear as much of it this morning, but with regard to sentences in the Ketris software manual, our expert Dr. Michelson's trial testimony about Ketris and its documentation,

[00:17:18] Speaker 00:
None of that was presented even to the special master.

[00:17:21] Speaker 00:
If you look at the briefing to the special master, 5739, 5740, none of that is there.

[00:17:27] Speaker 00:
Acceleron's response to that in their reply is, oh, well, our motion in limine was preserved.

[00:17:31] Speaker 00:
That's true, but that is all that was preserved.

[00:17:34] Speaker 00:
If they're going to rely on arguments that are now not presented to the special master, not in their motion in limine, then they either needed to preserve them through a trial objection or at the very least through their post-judgment motion for new trial wasn't done.

[00:17:45] Speaker 00:
It's forfeited twice over.

[00:17:47] Speaker 00:
Also harmless.

[00:17:48] Speaker 00:
because they do not deny that as the case now stands before this court, the Ketrus unit that was demonstrated at trial was relevant to invalidity of claim three and claim 24.

[00:17:59] Speaker 00:
We actually succeeded in invalidating claim 24.

[00:18:01] Speaker 00:
They haven't appealed that.

[00:18:03] Speaker 00:
They haven't denied that the physical unit was relevant to show invalidity of claim three.

[00:18:08] Speaker 00:
They're only focusing on claim 20.

[00:18:10] Speaker 00:
That, at most, would have justified a limiting instruction of some kind.

[00:18:14] Speaker 00:
The judge could have said, you can only consider this demonstration

[00:18:17] Speaker 00:
for purposes of those two claims.

[00:18:19] Speaker 00:
I conclude it's not relevant to Claim 20.

[00:18:21] Speaker 00:
They didn't ask for that limiting instruction from Judge Batten.

[00:18:23] Speaker 00:
They haven't asked for it here.

[00:18:25] Speaker 00:
So that's another reason why the court does not need to engage with the merits of whether it was admissible.

[00:18:31] Speaker 00:
The second harmlessness reason is there was plenty of other evidence of Claim 20's invalidity.

[00:18:36] Speaker 00:
Judge Clevenger, you've averted to this in some of your questions.

[00:18:39] Speaker 00:
Dr. Michelson, our expert, gave detailed testimony that the Ketrus Prior Art product

[00:18:44] Speaker 00:
Not the thing that was sitting in the courtroom, but the prior art product, which was the invalidating reference, actually engaged in polling.

[00:18:51] Speaker 00:
And his testimony has not been challenged.

[00:18:52] Speaker 00:
There's no appeal of a Daubert motion or anything like that.

[00:18:55] Speaker 00:
And he could give that testimony even if it relied on inadmissible evidence.

[00:18:59] Speaker 00:
And he gave detailed testimony about how the prior art product actually worked.

[00:19:04] Speaker 00:
He was cross-examined on that.

[00:19:06] Speaker 00:
The jury was entitled to make its credibility determination.

[00:19:09] Speaker 00:
Mr. Forbes himself also testified about how he demonstrated

[00:19:13] Speaker 00:
the Ketrus Manager software to customers in the spring and summer of 2000, and he said it works exactly the same way as Dr. Michelson had testified.

[00:19:21] Speaker 00:
So even had there been no live demonstration of a Ketrus unit in the courtroom at all, there is plenty of evidence that the prior art product anticipated claim 20, and as Your Honor has indicated,

[00:19:32] Speaker 00:
there was no post-judgment rule 50B motion, not just on this issue, on any issue.

[00:19:37] Speaker 00:
Acceleron did not file a post-judgment rule 50B motion on any issue, so there is no sufficiency question before the court.

[00:19:45] Speaker 00:
With respect to willfulness, I may sound like a broken record, but that's moot too, or at the very least harmless, because the district court has already exercised its substantial discretion in denying enhanced damages, and Acceleron has not shown

[00:19:59] Speaker 00:
that any retrial, even if a new jury were to find willfulness, could change the ultimate judgment.

[00:20:04] Speaker 00:
This case, we think, is like Exogen.

[00:20:06] Speaker 00:
It's a non-precedential case, but I think it's very persuasive on this.

[00:20:09] Speaker 00:
There, the district court granted summary judgment of no willfulness, then separately evaluated the read factors and said, I'm not going to enhance damages.

[00:20:16] Speaker 00:
This court affirmed and rejected the argument that a jury must consider willfulness before exercising discretion.

[00:20:23] Speaker 00:
And with regard to inducement, I just point out

[00:20:27] Speaker 00:
The SRI, of course, makes clear that inducement and willfulness are different standards.

[00:20:31] Speaker 00:
Also, a reasonable belief of invalidity is relevant to willfulness, whereas under Connell versus Sisfill, we know it's not relevant to inducement, and clearly Dell had a reasonable belief of invalidity in this case.

[00:20:43] Speaker 00:
It prevailed.

[00:20:44] Speaker 00:
as to Claim 24 and Claim 20, it was at the very least a triable issue for the jury on Claim 3.

[00:20:50] Speaker 00:
So we think a remand on willfulness would be futile and unnecessary, and unless the Court has further questions, we'd respectfully submit the judgment should be affirmed.

[00:20:57] Speaker 00:
Thank you, Your Honor.

[00:20:58] Speaker 03:
All right.

[00:20:59] Speaker 03:
Thank you.

[00:21:00] Speaker 03:
Mr. Pullman, Mr. Prine.

[00:21:03] Speaker 05:
A couple of points I'd like to make with regard to Claims 3 and Claim 20.

[00:21:06] Speaker 05:
The claim 20 was invalidated, but claim 3 wasn't.

[00:21:10] Speaker 05:
And there's a distinction there I think that's relevant here.

[00:21:13] Speaker 05:
Claim 3 had only devices or structure that the jury could see.

[00:21:18] Speaker 05:
And when they looked at it and they looked at the catcher's device, and he's right.

[00:21:23] Speaker 05:
We do not object to claim 3 because when the jury was able to see it, they could see that it did not have the structure that claim 3 required.

[00:21:30] Speaker 05:
But they couldn't see what's going on in claim 20, because it claimed software that's happening at the microprocessor.

[00:21:37] Speaker 05:
And they couldn't see that.

[00:21:38] Speaker 05:
And that's where the undue prejudice and the unfair prejudice really takes root.

[00:21:42] Speaker 05:
And I think the distinction is most bright, because there was nothing that we could do at that point to, you know, what is it?

[00:21:49] Speaker 05:
Acceleron's in a position of bringing the negative.

[00:21:51] Speaker 03:
But then the argument which he made, Mr. Fleming made, was that at that point, since it was admissible with regard to claim three and that you didn't object,

[00:21:59] Speaker 03:
is that even if you objected to its admissibility with regard to Claim 20, that would have just been a limiting instruction.

[00:22:04] Speaker 03:
The device itself would still have been in evidence.

[00:22:06] Speaker 05:
The trial court had already told us what our options were with that.

[00:22:09] Speaker 05:
With regard to the limiting instruction, our object, our option was to go through cross-examination.

[00:22:14] Speaker 05:
We felt that it would be futile to bring it up again.

[00:22:16] Speaker 05:
We had already brought it up three times already.

[00:22:18] Speaker 05:
To bring it up again, we didn't... For the special master.

[00:22:21] Speaker 05:
Sorry?

[00:22:21] Speaker 02:
For the special master, you brought it up?

[00:22:24] Speaker 05:
Well, the catcher's issue had become before the court in three different times, in the motion to strike, the motion for summary judgment, now motion and limiting.

[00:22:31] Speaker 01:
And the results of that... When was the motion to strike?

[00:22:33] Speaker 01:
I didn't see any reference to that in the briefs.

[00:22:35] Speaker 05:
Well, the prior motion to strike was the first time, it was for estoppel purposes, that was the first time that Acceleron had challenged the catcher's 9000.

[00:22:45] Speaker 01:
Okay.

[00:22:46] Speaker 05:
Right.

[00:22:47] Speaker 01:
And my point there to... In the specific argument when everybody was arguing back and forth as to why the

[00:22:53] Speaker 01:
was insufficient was basically on the summary judgment and on the motion and the limit.

[00:22:58] Speaker 05:
The Special Master cited both of those, Your Honor.

[00:23:00] Speaker 05:
He cited back to the... I knew that.

[00:23:02] Speaker 05:
Right, right.

[00:23:03] Speaker 05:
That's what I'm referring to there.

[00:23:04] Speaker 05:
And that's why, to the Chief Judge's point, while limiting instruction wasn't requested, the trial court had already said that, you know, the cross-examination was the available remedy at that time.

[00:23:16] Speaker 05:
With regard to my friend bringing up the expert, Dr. Michaelson, and their witnesses, none of them speak to what was going on in the prior device as far as whether it was polling.

[00:23:28] Speaker 05:
Dr. Michaelson only relies upon the two witnesses that neither one were together.

[00:23:33] Speaker 05:
Both we've cited that are interested witnesses saying that it looked and functioned the same.

[00:23:39] Speaker 05:
They never say that it polled because they didn't write the software.

[00:23:43] Speaker 05:
It was farmed out to a third party.

[00:23:45] Speaker 05:
and they were working on other parts.

[00:23:47] Speaker 05:
So let's parse out what they actually said.

[00:23:50] Speaker 05:
Dr. Michelson's opinion was only about... All right.

[00:23:53] Speaker 03:
Well, actually, you are way beyond your time.

[00:23:55] Speaker 03:
So if you have a summing thought, we'd be happy to hear it.

[00:23:59] Speaker 05:
It's just that we disagree that this issue has been forfeited and would be harmless.

[00:24:03] Speaker 05:
We do acknowledge that the Ketchers 9000 affects the claim construction issue with regard to the wilfulness issue.

[00:24:11] Speaker 05:
We think that should have gone to the jury, and we would ask the court to reverse on that as well.

[00:24:14] Speaker 05:
Thank you.

[00:24:15] Speaker 03:
I thank both counsel, this case is taken under submission.