[00:00:00] Speaker 00: Our next case is Parker Vision versus Qualcomm, 2022, 1755. [00:00:06] Speaker 00: Mr. Budwin. [00:00:12] Speaker 03: May it please the court, Josh Budwin on behalf of Parker Vision. [00:00:17] Speaker 03: During my initial introduction, I'd like to address two issues, the collateral stopple and the Dow bear issues. [00:00:23] Speaker 03: First, [00:00:24] Speaker 03: Collateral estoppel cannot apply in this case as a matter of law because the patent claims and infringement issues in this case relate to switch down conversion and are exactly the opposite of the prior case that related to capacitor down conversion. [00:00:42] Speaker 03: The district court abused its discretion in striking the whole of our infringement expert report without finding that Qualcomm's own highly confidential documents and the testimony of the engineers who designed the circuits in question that were relied on by our expert were unreliable. [00:01:01] Speaker 00: Let me ask you with respect to the distinction between switches and capacitor. [00:01:07] Speaker 00: We're talking about claims, say, [00:01:10] Speaker 00: 23 in the 551 patent and claims in the 940 patent. [00:01:18] Speaker 00: Could you point out the language that points out the distinction switch versus capacitor? [00:01:24] Speaker 03: Yes, Your Honor. [00:01:25] Speaker 03: If we look to claim 23, the 551 patent, and this is at pages star 1011 to 12 of the Parker Vision 1 opinion, the last elements of that claim recite a storage module recited to said switch module. [00:01:41] Speaker 03: Wherein said storage module receives non-negligible amounts of energy transferred from a carrier signal. [00:01:49] Speaker 03: And then the very end of that claim, there's another wherein clause. [00:01:53] Speaker 03: Wherein a lower frequency signal is generated from the transferred energy. [00:01:58] Speaker 03: Consistent with that claim language, this court held in Parker Vision 1 that the claims asserted in that case, including claim 23 of the 551 patent, required the capacitor, the energy storage element, [00:02:10] Speaker 03: to perform down conversion. [00:02:13] Speaker 03: In contrast, if we look to claim 24 of the 940 patent at issue here, this is at appendix 150, this claim has three parts, and they're labeled one, two, and three. [00:02:28] Speaker 03: One, a universal frequency translation module. [00:02:32] Speaker 03: That's the switches. [00:02:34] Speaker 03: said UFT module aliasing, sampling, opening and closing a switch, an electromagnetic signal, according to an aliasing signal, having an aliasing rate to down convert said electromagnetic signal, and transferring energy that's already been down converted at an aliasing rate. [00:02:56] Speaker 03: And then if we look to item three, it's a storage device storing energy from the UFT module. [00:03:02] Speaker 03: The language of the claims makes plain, and it tracks the holding of this Court's decision in Parker Vision 1, that in the prior case, the capacitors were required to downconvert, and in this case, the switches are required to downconvert. [00:03:17] Speaker 00: Because this is summary judgment, isn't it? [00:03:20] Speaker 03: Yes, Your Honor, it is summary judgment of collateral estoppel, which is an issue of law which this Court should review de novo. [00:03:27] Speaker 02: The comparison of claim scope that you just went through, is it fair to think of that as a question of law itself that's really analogous, if not identical, to claim construction? [00:03:37] Speaker 03: Yes, Your Honor, I believe it is. [00:03:39] Speaker 03: This court can look at the language of the claims itself as a matter of law, and this court can determine that the scope of those claims are different. [00:03:47] Speaker 02: Now, my understanding is nobody asked the district court to do claim construction as part of this collateral estoppel analysis. [00:03:54] Speaker 02: Isn't that right? [00:03:54] Speaker 03: That's correct, Your Honor. [00:03:55] Speaker 03: The district court was not asked to construe by either party any of the claims that issue in this case to read in the generating limitation that would bring the scope of the claims. [00:04:05] Speaker 03: the literal language of the claims at issue in this case to read on the same scope as the claims that were at issue in the prior cases. [00:04:11] Speaker 02: Isn't that a problem for you? [00:04:12] Speaker 02: Because couldn't we see your appeal as essentially asking us to do claim construction that you never asked the district court to do? [00:04:19] Speaker 03: No, Your Honor. [00:04:20] Speaker 03: The language of the claims as written controls, in the absence of a claim construction, we look to the plain and ordinary meaning of those claims. [00:04:27] Speaker 03: And the plain and ordinary meaning of those claims, as I just discussed with Judge Lurie, the language is different. [00:04:34] Speaker 03: The language is different as a matter of law. [00:04:36] Speaker 03: You can see that by looking at the claims. [00:04:38] Speaker 03: You don't need a claim construction to do that. [00:04:41] Speaker 03: If anything, if Qualcomm was trying to import limitations to make these claims look like the claims from the prior case, then they should have advanced the claim construction asking for the claim scope to be the same, and they didn't. [00:04:54] Speaker 03: So if anything, [00:04:55] Speaker 03: the issue would seem to imply a waiver on Qualcomm's part and not on our part. [00:04:59] Speaker 03: The language of the claims as written is consistent with our infringement theory and shows that the issues to be litigated in this case are not the same as the issues litigated in the prior case. [00:05:11] Speaker 02: The district court was of the view that your experts admitted that the claim scope was basically identical here to what we faced in Parker Vision. [00:05:21] Speaker 02: For example, at A8 the district court says your experts admitted that the claims here require that you produce a lower frequency signal using energy that's been transferred from a higher frequency signal into a storage medium. [00:05:38] Speaker 02: Did I get right with the district court found and didn't your experts in fact admit that? [00:05:43] Speaker 03: You did get right with the district court found and the district court did correctly quote our expert. [00:05:48] Speaker 03: But the expert's testimony is fully consistent with switch down conversion, which is the issue litigated in this case, and not capacitor down conversion, which was the issue litigated in the prior case. [00:06:00] Speaker 03: The question that was asked, and I have this. [00:06:02] Speaker 03: It's reproduced on page 26 of Qualcomm's brief. [00:06:05] Speaker 03: The question that was asked was, does claim 24 of the 940 patent require that you produce a lower frequency signal using energy [00:06:18] Speaker 03: that's been transferred from a higher frequency signal into a storage medium. [00:06:24] Speaker 03: And if we look at claim 24 of the 940 patent, as I just discussed with Judge Lurie, you can see the way that claim is set up, the UFT module switch down converts to down convert said electromagnetic signal and transferring energy from said electromagnetic signal at an aliasing rate [00:06:46] Speaker 03: And where does at least some of that energy gets transferred? [00:06:49] Speaker 03: It gets transferred into a storage device. [00:06:51] Speaker 03: The switches have already down-converted that energy by the language of the claim and our experts' opinion, which I'll provide for you, Your Honor, before they reach the energy storage device. [00:07:02] Speaker 03: So the experts' alleged admission that Qualcomm relies upon on page 26 and that the district court relied upon [00:07:10] Speaker 03: in granting collateral estoppel summary judgment is fully consistent with the infringement theory in this case, which is the opposite of the infringement theory at issue in the prior case. [00:07:21] Speaker 03: If we look to appendix 44.111 and 43.34, these are? [00:07:28] Speaker 02: 44.111? [00:07:32] Speaker 03: Two fours, three ones, four zero, three three four. [00:07:37] Speaker 03: These are excerpts from our expert's report where he is crystal clear, that is the switches that are doing the down conversion. [00:07:44] Speaker 03: And as related to the quote that your honor asked me about and that we just discussed, this is page 4334. [00:07:53] Speaker 03: During the periodic coupling, so when the switch is closed, a down converted signal exists at the output of the mixer. [00:08:00] Speaker 03: I'm quoting our expert's report. [00:08:02] Speaker 03: It consists of two parts, one that goes to the load and the other that goes to the energy storage device. [00:08:10] Speaker 03: That's the infringement opinion. [00:08:11] Speaker 03: The switch is downconvert. [00:08:12] Speaker 03: That downconverted energy then goes to two places. [00:08:15] Speaker 03: It goes to the load and some of it goes into the energy storage device. [00:08:19] Speaker 03: The quote that Your Honor asked me about that's reproduced on page 26 is 100% consistent with that theory of infringement, which was not an issue that was litigated in the prior case. [00:08:28] Speaker 02: And the report that you just quoted for, was that part of the summary judgment record on the collateral estoppel summary judgment motion, the second one, the one that was granted? [00:08:36] Speaker 03: Yes, Your Honor, it was. [00:08:38] Speaker 02: And the district court just overlooked it, is your view? [00:08:40] Speaker 03: That's my view. [00:08:41] Speaker 03: And I think the district court also got it wrong as a matter of law by treating this issue as a disputed issue of material fact between the experts. [00:08:48] Speaker 03: The claim language itself is clear. [00:08:50] Speaker 03: That's all that we need to look at, even to the extent that we get to what the experts had to say. [00:08:55] Speaker 03: I just explained to Your Honor why our opinion is consistent with the switch-down conversion theories presented here and different from the prior case. [00:09:04] Speaker 03: But it's important that Qualcomm's expert agrees with us. [00:09:08] Speaker 03: And we present the testimony of Qualcomm's expert for the excerpts from his report on pages 40 and 41 of our brief. [00:09:16] Speaker 03: their expert prepared these side-by-side charts in an attempt to show that the claim language is the same. [00:09:21] Speaker 03: What those claim language side-by-side charts in fact show is the claim language is different. [00:09:28] Speaker 03: When we look to that critical generating limitation, we don't see that present in the charts prepared by Qualcomm's expert. [00:09:37] Speaker 03: And I think it's important to note that we took the court's guidance from the prior case to heart. [00:09:44] Speaker 03: star 1013, star 1014, star 1016, this court told us in the prior case that the double balance mixer, that's the switches in Qualcomm's product, creates the baseband signal before the signal reaches the identified capacitors. [00:10:01] Speaker 03: And this meant, and I'm quoting from 1014, that Qualcomm products obtained the baseband signal [00:10:09] Speaker 03: from somewhere other than the energy stored in the capacitors, precluding a finding of infringement. [00:10:17] Speaker 03: Consistent with that, we selected and asserted claims and infringement theories in this case that read on the switches in the double balance mixer doing the down conversion and creating the baseband signal for the capacitors. [00:10:32] Speaker 03: And because the infringement of patent claims [00:10:35] Speaker 03: that cover switches generating or creating the baseband signal was not litigated in the prior case, but is being litigated in this case, collateral stopple cannot apply as a matter of law. [00:10:48] Speaker 03: That's the sovereign software case. [00:10:52] Speaker 03: And with that, I'd like to reserve the remainder of my time. [00:10:55] Speaker 00: We will save it for you, Mr. Gardner. [00:11:13] Speaker 01: May it please the court. [00:11:14] Speaker 01: I'm Eamon Gardner on behalf of Qualcomm. [00:11:18] Speaker 01: The district court in this case did exactly what it was asked to do. [00:11:22] Speaker 01: For both collateral estoppel and Albert, it received extensive briefing, held two full days of hearings, and issued opinions consistent with the one-sided evidentiary record that was actually presented to it. [00:11:36] Speaker 01: The decisions should be affirmed. [00:11:38] Speaker 01: I'd like to start with the issue of collateral estoppel. [00:11:41] Speaker 01: For collateral estoppel, [00:11:43] Speaker 01: The court was asked to decide whether a person of ordinary skill in the art would consider the received claims in this case to include the same requirement that the court found dispositive of non-infringement in Part Provision 1. [00:11:59] Speaker 01: On this issue, the record was uncontested. [00:12:02] Speaker 01: The district court properly relied on Dr. Azzabi's undisputed analysis, that's Qualcomm's expert, [00:12:08] Speaker 01: And the deposition admissions from not one, but both of Parker Vision's experts confirming that the claims at issue have the same fundamental requirement. [00:12:19] Speaker 01: And those admissions are cited at the red brief at page 26. [00:12:23] Speaker 01: Now, Parker Vision has presented bare attorney argument that the claims in this case are somehow different. [00:12:29] Speaker 01: They're, quote unquote, switched down converted. [00:12:32] Speaker 01: This is an argument which lacks any intrinsic support or relevant extrinsic support. [00:12:38] Speaker 01: and should be rejected. [00:12:40] Speaker 00: We can read the claims. [00:12:43] Speaker 01: Yes. [00:12:43] Speaker 01: So I do understand that the court can look at the language of the claims. [00:12:48] Speaker 01: But this is not claims that are sort of layman's terms or claims that are within sort of the ordinary usage. [00:12:55] Speaker 01: These are very complex sets of patents. [00:12:59] Speaker 01: And even Parker Vision argued that this is an evidentiary issue to the district court. [00:13:05] Speaker 01: So for example, in [00:13:08] Speaker 01: the records site 10072, Parker Vision argued that in the absence of a claim construction, the jury must decide how a person of ordinary skill and the art would understand the claim. [00:13:21] Speaker 01: Now, Parker Vision has attempted to distinguish this saying they were talking about non-infringement or talking about infringement in their case. [00:13:28] Speaker 01: But on the very next page, 10073, Parker Vision, for this exact issue, [00:13:35] Speaker 01: Whether or not the 907 claims include the generating requirement, Parker Vision once again argued it was an evidentiary issue. [00:13:42] Speaker 01: And I'll quote, Parker Vision said, no party sought to construe any term in the 907 patent, so the jury must decide on a trial record how a passito would understand the claims' plain and ordinary meaning. [00:13:55] Speaker 01: Parker Vision cannot now follow. [00:13:57] Speaker 00: You speak in anagrams as well. [00:14:00] Speaker 01: I apologize. [00:14:02] Speaker 01: I think that that was a direct quote, to be fair, from the record, but I will try to always use person of ordinary skill in the art. [00:14:11] Speaker 01: Parker Vision now can't fault the district court. [00:14:14] Speaker 01: for accepting its own argument on how to handle the very issue in dispute. [00:14:19] Speaker 02: Well, let me press you a little on that. [00:14:21] Speaker 02: If this is a question of law, of claim scope, analogous to claim construction, don't we have an obligation, either us or on remand the district court, to resolve that dispute as a question of law, even if you all decided it's not a question of law? [00:14:40] Speaker 01: Well, first, I think the invited error [00:14:42] Speaker 01: Doctrine, which is Logan V. Principe, which was cited in our briefing, says that if the parties present the district court with an argument that this is how you should handle it, that the district court following that, then Parker Vision can't now complain about that on appeal. [00:15:01] Speaker 01: Even if we look at this from a claim construction perspective, claim construction requires that you look at the plain and ordinary meaning or the meaning of the claims through the eyes of a person of ordinary skill in the art. [00:15:12] Speaker 01: And here we have three experts, both of Parker Visions experts, who acknowledge that the claims include the same requirements. [00:15:20] Speaker 02: What's your response to the maybe arguably more common sense? [00:15:24] Speaker 02: reading of the claims that we got from your friend on the other side, where it doesn't sound like that generating language is in the claims before us now, which was clearly there in the 551 patent in Parker Vision 1. [00:15:37] Speaker 01: So I think this court has held that just mere differences in claim language isn't what's important. [00:15:45] Speaker 01: It's whether or not the same requirement is included, right? [00:15:49] Speaker 01: That's the Ohio versus the low. [00:15:51] Speaker 02: So where is it included in the claims before us now? [00:15:54] Speaker 01: Great. [00:15:54] Speaker 01: So we have in specifically, if we look at the 940 patent, which I think your question relates to, is we're talking about an aliasing module that performs down conversion and park revision puts a lot of weight on the fact that [00:16:11] Speaker 01: within that the aliasing rate that helps perform that kind of down conversion is included in the UFT module and then ignores that we have a signal generator and a storage device that are also part of the aliasing module in order to perform that down conversion. [00:16:26] Speaker 01: Now, neither party presented the claim construction dispute on what the aliasing module does because all the experts understood this. [00:16:32] Speaker 01: I understand that that's not an ordinary term that anybody here uses, but that term is something that was well within the knowledge of a person of ordinary skill in the art [00:16:40] Speaker 01: And on deposition and in Dr. Razavi's expert report, all three experts agreed that the aliasing module includes this fundamental requirement. [00:16:51] Speaker 01: Now Parker vision has argued today that the expert mission isn't actually an admission. [00:16:57] Speaker 01: That's the same, but the language that we're talking about is an exact quote from the federal circuits argument. [00:17:05] Speaker 01: I mean, the federal circuits decision in Parker vision one, so the federal circuit [00:17:10] Speaker 01: In Parker-Vision 1 said the generating limitation in each of the asserted claims requires that the accused products produce a low frequency baseband signal using energy that has been transferred from a high frequency carrier signal into a storage medium. [00:17:24] Speaker 01: That's the exact quote that we asked their experts. [00:17:29] Speaker 01: So for Parker-Vision to now stand here and say that that describes switched down conversion is rather surprising given that that's the exact way that the generating limitation [00:17:39] Speaker 01: which was described in PV1, which was the essential finding in PV1, matches that language. [00:17:48] Speaker 01: So there appears to be no dispute that the generating limitation and their switched down conversion are exactly the same because they agreed today that that language describes both the generating limitation in Perk Revision 1 and their supposed switched down conversion, which again does not exist in any of these patents that are at issue here. [00:18:10] Speaker 02: In your brief at page 17 you write that both of Parker Visions technical experts, there was the original I think Dr. Allen and then a replacement expert, you say both of them testified the asserted received claims from the 940 and the 907, those are the patents with us. [00:18:28] Speaker 02: include the exact requirement that the district court in this court found as positive of non-infringement in Parker Vision 1 is the place that you would point to for those two experts admitting that? [00:18:41] Speaker 02: This quote at page 26 and your other sites at 26 in your brief. [00:18:46] Speaker 01: So the quotes in our red brief at page 26, they also cite to the Parker Vision 1 decision at 1,013. [00:18:56] Speaker 01: So if you compare this court [00:18:59] Speaker 01: said that the generating limitation, it said what that requires. [00:19:02] Speaker 01: We then asked their experts, does it require the same thing? [00:19:05] Speaker 01: And they confirmed. [00:19:07] Speaker 01: So we don't have any dispute. [00:19:09] Speaker 02: So if, just hypothetically, if we say those are not admissions or that, on a summary judgment standard, a reasonable fact finder could say those are not admissions, it's more complicated, there's a genuine dispute of fact, what would we do at that point? [00:19:29] Speaker 01: if you found that the previous statements were not admissions? [00:19:35] Speaker 02: That the statements in this case that the district court relied on to say there's no dispute of fact about claim scope, if we say there is a dispute of fact, what do we do at that point? [00:19:47] Speaker 01: I think that the issue I've [00:19:51] Speaker 01: I still think that affirmance is proper because what we have is we have Dr. Razavi has submitted an expert report, right? [00:19:58] Speaker 01: So this was submitted as his opening expert report, and the district court relied on that at Appendix 7. [00:20:08] Speaker 01: It includes multiple citations to Dr. Razavi's opening expert report, and Parker Vision had an opportunity to present rebuttal [00:20:17] Speaker 01: you know, analysis of that. [00:20:18] Speaker 02: What happened to Dr. Allen's expert report that the district court relied on in denying your summary judgment motion at the beginning of the case? [00:20:26] Speaker 02: Wasn't that still part of the record? [00:20:28] Speaker 01: So that is not part of the record. [00:20:29] Speaker 01: And that's a great question. [00:20:30] Speaker 01: I want to be clear about this. [00:20:31] Speaker 01: So Dr. Allen submitted an expert declaration in 2019 that the court relied on in denying their original summary judgment. [00:20:42] Speaker 01: When Dr. Allen was replaced, the court issued an order, and that's at appendix 31-984 through 31-991. [00:20:50] Speaker 01: And the district court set bounds on what Dr. Steer was allowed to adopt and not allowed to adopt. [00:20:56] Speaker 01: And at 31-984, the order regarding the replacement expert defines that Dr. Allen or Dr. Steer is allowed to adopt the 2020 expert reports with no mention of the expert declaration. [00:21:11] Speaker 01: At 31-991, the court repeats that statement. [00:21:15] Speaker 02: How could that be proper? [00:21:16] Speaker 02: There was a report in 2019 from their expert who got sick, by the way, right? [00:21:22] Speaker 02: You're not alleging there was something nefarious in that expert disappearing, right? [00:21:26] Speaker 01: Yeah, that's correct. [00:21:27] Speaker 02: So how can evidence that created a genuine dispute of fact on the very point of the scope of the claims [00:21:34] Speaker 02: that the district court relied on to deny your first motion suddenly be wiped away and as if it doesn't exist when you renew your motion years later? [00:21:43] Speaker 01: Well, I think the fact is that if Dr. Steer would have liked to adopt that, he would have needed to actually adopt it. [00:21:50] Speaker 01: And there's no evidence that he actually did. [00:21:52] Speaker 01: Now, the reason there's nothing on appeal is Parker Vision never argued this below. [00:21:59] Speaker 01: But if they had, there was deposition testimony of Dr. Steer where he says he never looked at the Parker Vision 1 claims. [00:22:07] Speaker 01: How could Dr. Steer have adopted something from a 2019 declaration that compares those? [00:22:13] Speaker 01: Obviously he would have had to have done a little bit of work to look at the claims. [00:22:16] Speaker 01: He would have needed to do it, but he didn't. [00:22:18] Speaker 01: So he didn't adopt it. [00:22:20] Speaker 01: So we're in a situation where they withdrew an expert and they didn't have their replacement expert do the analysis that would be required in order to adopt that. [00:22:29] Speaker 01: And I think that this ends up going a little outside the evidentiary record, but we would of course be happy to submit that to confirm. [00:22:37] Speaker 01: But it's just simply not true that Dr. Steer adopted that, nor was he allowed to, given the bounds of what the order on the replacement expert covered. [00:22:53] Speaker 01: I just want to cover briefly, because counsel just touched out at a really high level, [00:22:58] Speaker 01: on the Daubert issues, if you don't have any more questions on collateral or software. [00:23:04] Speaker 01: So on the Daubert issues, Percovision has just failed to show that that Daubert decision was manifestly erroneous, as is required by the deferential abuse of discretion standard review. [00:23:16] Speaker 01: Now, I heard Percovision's counsel say highly confidential documents, that its expert relied on those. [00:23:23] Speaker 01: And this is a case where [00:23:26] Speaker 01: We had two full days of hearings on this. [00:23:28] Speaker 01: They had a full opportunity to identify the documents that their expert relied on and provide evidence that their expert actually relied on those materials. [00:23:38] Speaker 01: And they just didn't do it. [00:23:39] Speaker 01: The district court was in a position to be able to consider those arguments. [00:23:43] Speaker 01: And the fact is they just never have shown that their expert actually relied on or actually considered those materials. [00:23:53] Speaker 01: Instead, they point to materials that were never cited by their experts. [00:23:57] Speaker 01: They point to materials that are irrelevant to the asserted claims or they point to calculations that just simply don't exist per the district court's findings. [00:24:07] Speaker 02: So is this argument that even if we thought the district court was wrong to require testing in order to make the opinion reliable, that would not lead to reversal because the other problem is their expert didn't rely on anything, much less not do testing. [00:24:26] Speaker 01: I think that's exactly right. [00:24:27] Speaker 01: So there's two layers to this. [00:24:29] Speaker 01: So Qualcomm submitted unrebutted evidence, including the textbook from Dr. Allen, the expert who actually prepared the analysis and the report, saying that the simulations are customary and necessary, and then an expert must simulate to understand these specific kinds of devices. [00:24:49] Speaker 01: Now, this isn't sort of a general. [00:24:51] Speaker 01: The court found that for these specific claims and for these specific products, that simulations were proper and simulations were necessary. [00:25:00] Speaker 01: Indeed, it considered undisputed evidence that the same experts, when analyzing the same exact products for similar claims, attempted to rely on simulations in other cases. [00:25:11] Speaker 01: So this was not something that, and that's at Appendix 33, this was not something that was new to them. [00:25:19] Speaker 01: Now, even if [00:25:21] Speaker 01: You said, well, you don't need to do simulations. [00:25:25] Speaker 01: Then it's still Percovision's burden to show that their expert relied on sufficient facts and our data. [00:25:31] Speaker 01: And they just never demonstrated that to the district court. [00:25:34] Speaker 02: Before your time runs out, there's this other expert report related to invalidity. [00:25:38] Speaker 02: You say we don't have jurisdiction over that part of their appeal. [00:25:42] Speaker 02: They talk about the doctrine to avoid judicial waste in their reply brief. [00:25:46] Speaker 02: If, I know this isn't what you want, but if the case is going back anyway, [00:25:50] Speaker 02: And if we thought the district court got this invalidity one wrong, to avoid judicial waste, should we say something, or we shouldn't or can't say something about that? [00:26:01] Speaker 01: Well, I don't think it's properly in front of this court, but it's also not ripe for resolution. [00:26:06] Speaker 01: If you look at the court's order at appendix 27 and 45, the district court instructed the parties to go meet and confer on this issue and to submit further briefing if necessary to resolve how the court's order will actually impact. [00:26:20] Speaker 01: And we have a fundamental disagreement here about the framing of the issue. [00:26:26] Speaker 01: But our view is that we're relying on the findings that were necessary for the claims that were invalidated. [00:26:34] Speaker 01: And Parker-Vision disagrees about that. [00:26:35] Speaker 01: But we still have just a fundamental. [00:26:38] Speaker 02: If we affirm, is this case still going forward on invalidity? [00:26:41] Speaker 01: No, it's not. [00:26:45] Speaker 00: OK. [00:26:45] Speaker 00: Thank you. [00:26:45] Speaker 00: You have a final thought? [00:26:47] Speaker 01: No, Your Honor. [00:26:49] Speaker 00: All right. [00:26:50] Speaker 00: We can guess what it is anyway. [00:26:53] Speaker 00: Mr. Baldwin has some more bottles on. [00:26:59] Speaker 03: Yes, Your Honor, thank you. [00:27:01] Speaker 03: So briefly on the collateral estoppel issue, we heard my friend discuss that it was represented to the district court that the jury should decide the issue of collateral estoppel. [00:27:11] Speaker 03: The jury should decide the issue of claim scope. [00:27:13] Speaker 03: And while I don't think that's the right standard, as we discussed earlier, [00:27:17] Speaker 03: Here, the jury did not decide that issue, and the district court told us directly that he didn't think juries should be resolving these types of issues. [00:27:26] Speaker 03: The district court resolved this issue against us at summary judgment, and the district court got it wrong. [00:27:32] Speaker 03: If the jury must decide this issue, [00:27:35] Speaker 03: using the alleged admission of our expert, they're welcome to cross-examine the expert at trial with that and get whatever testimony from the expert at trial that they think they can make from that cross-examination. [00:27:46] Speaker 03: This isn't an issue where the expert admitted anything and gave the case away. [00:27:51] Speaker 03: I think it's very important for us to focus on what the holding of the Parker Vision 1, the prior case, was. [00:27:58] Speaker 03: My friend is pointing to what I would characterize as [00:28:01] Speaker 03: loose language in that opinion related to the use of the word produce, it's clear the holding in that case required the capacitors to generate, which is the claim language, or create. [00:28:13] Speaker 03: And when the prior opinion uses words like produce, it was using them as a synonym for generate or create. [00:28:19] Speaker 03: But there's no evidence that the expert, with respect to the testimony that we've been discussing, was asked that question. [00:28:26] Speaker 03: He understood produce in that same way. [00:28:28] Speaker 03: Instead, [00:28:30] Speaker 03: Because at the time he's asked that question, collateral estoppel has already been resolved in our favor by the district court two years before. [00:28:38] Speaker 03: He's answering that question in the context of the claims and his infringement opinion, both of which are crystal clear that switches down convert, not the capacitor. [00:28:49] Speaker 03: I would like to address the Dow bear issues briefly with my remaining time. [00:28:53] Speaker 02: Before you do, Dr. Steer had never adopted Dr. Allen's opinion, and Dr. Allen's opinion on collateral stopper was not part of the record, according to your friend. [00:29:03] Speaker 03: Dr. Steer, as I understood it, adopted all of Dr. Allen's opinions when Dr. Allen had to be replaced for his medical issues. [00:29:10] Speaker 02: Are you able to point us to where in the record we could find support for that? [00:29:14] Speaker 03: What I have is I actually have the expert declaration that was signed by Dr. Allen. [00:29:20] Speaker 03: I don't have a record site that says Dr. Steer specifically adopted the expert declaration, which is at appendix 10-091, so 1-00-91-92. [00:29:31] Speaker 03: But at the time of Dr. Steer's expert report and at the time of his deposition, [00:29:37] Speaker 03: The court had already resolved the collateral estoppel issue. [00:29:40] Speaker 03: Our view is that issue was resolved in our favor. [00:29:43] Speaker 03: It was over and done with. [00:29:44] Speaker 03: And then our expert put in an infringement theory, an infringement report, that's clear that the switch is downconverted. [00:29:51] Speaker 03: Because the collateral estoppel issue had already been resolved by the court, we didn't view that as a live issue that required expert testimony to go in and rebut. [00:30:00] Speaker 02: Even when you got a renewed motion for summary judgment on collateral estoppel? [00:30:03] Speaker 03: That came after the expert reports, after the record was closed. [00:30:07] Speaker 02: But you made no effort, apparently. [00:30:08] Speaker 02: You're nothing you can point to in the record for, oh, by the way, we'd now like to expand the record to make sure Dr. Steer has a chance to adopt. [00:30:15] Speaker 03: So Dr. Steer is crystal clear time and again in his report that the switch is downconvert. [00:30:21] Speaker 03: There is never one opinion cited in his report anywhere where he says the capacitor downconverts, not one. [00:30:29] Speaker 03: And so the report itself shows that it's the switches that downconvert, not the capacitors that downconvert. [00:30:36] Speaker 03: And the report is clear that there is infringement in this case in an issue that is different from the issues presented in the prior case. [00:30:44] Speaker 03: And turning briefly to the Dalbury issue, [00:30:47] Speaker 03: I heard my friend suggest that while we had Qualcomm evidence in the record, there's no proof that our expert actually relied on Qualcomm evidence. [00:30:57] Speaker 03: And if we look to Appendix 33, and this is the district court, I think it's interesting how the district court framed this issue. [00:31:04] Speaker 03: He says, this is a quote, [00:31:05] Speaker 03: The point being that plaintiffs experts elected to rely on Qualcomm's design review documents, testing review documents, schematics, and defendant simulations in conjunction with mathematical analysis to support the opinions. [00:31:20] Speaker 03: The district court is recognizing that we cited and relied on Qualcomm's evidence. [00:31:25] Speaker 03: Appendix 39 has to the harmonically rich signal term. [00:31:30] Speaker 03: The district court found that Parker Visions expert relied on and cited [00:31:34] Speaker 03: A low level, this is a quote, a low level test, harmonic test showing a second and third harmonic power level. [00:31:43] Speaker 03: Expert report site, appendix 51074. [00:31:46] Speaker 03: That's the expert explaining the evidence relied upon for the harmonically rich signal. [00:31:53] Speaker 03: Appendix 38 and 27 for gating. [00:31:56] Speaker 03: Again, the district court says, Dr. Steer's report contains numerous references to gating, and he identifies switches on schematics which he contends performs the gating function. [00:32:09] Speaker 03: That's the district court saying that our expert cites evidence in support of gating. [00:32:15] Speaker 00: Counsel, your time is up. [00:32:18] Speaker 00: You take the case on the submission. [00:32:21] Speaker 00: But let me ask you just to make sure everything is working all right. [00:32:24] Speaker 00: You keep looking over there to see the timing. [00:32:27] Speaker 00: Is it not in front of you? [00:32:28] Speaker 03: It is in front of me, but yes. [00:32:29] Speaker 00: Thank you, Your Honor. [00:32:31] Speaker 00: Thank you. [00:32:31] Speaker 00: The case is submitted.