[00:00:02] Speaker 03:
Our last case today is Sorrell Holden's, the Infinity Headwear and Apparel, case number 22-1964.

[00:00:12] Speaker 03:
And I will go ahead and say, let's see if this case will be a cinch.

[00:00:19] Speaker 03:
I'm gonna bring out my inner Judge Laurie.

[00:00:38] Speaker 03:
Mr. Parsons, whenever you're ready.

[00:00:40] Speaker 00:
Thank you, Your Honor.

[00:00:41] Speaker 00:
Good morning and may it please the court.

[00:00:43] Speaker 00:
My name is Gavin Parsons.

[00:00:44] Speaker 00:
I'm with the Coats of Middle law firm in Cary, North Carolina, and I'm here representing Soil Holdings LLC in an appeal of a trial court's claim construction order in a jury verdict in favor of the defendant for non-infringement.

[00:01:00] Speaker 00:
And at last, a sanctions order against plaintiff's counsel over a discovery issue.

[00:01:07] Speaker 00:
So those are the issues we're talking about, the three primary issues within that.

[00:01:13] Speaker 00:
Mr. Sorrell's invention, which he assigned to Sorrell Holdings, is a, as you said, is a cinch.

[00:01:19] Speaker 00:
It's a, it performs two functions.

[00:01:21] Speaker 00:
In claim 11, it binds the mesh into a pleated ball and it attaches it to a scrubber that has a, that attaches the scrubber to a pleated ball, to a figurative handle.

[00:01:33] Speaker 00:
Two functions.

[00:01:35] Speaker 00:
Reviewing claim language, it is irrelevant whether that cinch touches the user's hands or not.

[00:01:44] Speaker 00:
The court's claim construction order and jury instructions construed claim 11 to require a negative limitation that the cinch could not contact the user's hand while they were washing.

[00:01:58] Speaker 00:
And that's nowhere to be found in the claim language.

[00:02:00] Speaker 03:
That was imported in from the specification, right?

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

[00:02:03] Speaker 00:
Yes, it was imported from the spec, and there are eight or nine other mentions of the word cinch in the specification.

[00:02:10] Speaker 00:
about one and limited claim 11 based on that.

[00:02:14] Speaker 01:
Can we talk about the paragraph that the board relied on from the specification?

[00:02:19] Speaker 01:
I think it's at 850, but as I read that paragraph, there are certain statements about the cinch that are called out as just embodiments, certain statements in that paragraph that use the word may,

[00:02:37] Speaker 01:
But the crucial sentence that I think was persuasive to the district court doesn't say embodiment and doesn't say may.

[00:02:46] Speaker 01:
Instead, it says additionally, cinch 30 and nozzle 46 do not directly contact the user when bathing with the device.

[00:02:54] Speaker 01:
Why is it an erroneous reading of that sentence to think that that is, in fact, a limitation?

[00:03:03] Speaker 00:
Again, that is the one, there's nothing by the inventor there that demonstrated any kind of intent that the claim line would be limited by that specification.

[00:03:15] Speaker 01:
Well, how about the grammar?

[00:03:18] Speaker 01:
Why shouldn't, why wouldn't a person still in the art not read the grammar choices very deliberate?

[00:03:23] Speaker 01:
It's embedded in a paragraph that uses embodiment and may and broader language, but that specific sentence doesn't use either of those.

[00:03:31] Speaker 00:
I understand that, but in all the other mentions of cinch in the specifications, there is no

[00:03:40] Speaker 00:
This is the one time there's any kind of limitation referred to there.

[00:03:43] Speaker 00:
And the court picked that one limitation out of the life on it instead of how the numerous eight or nine other times the cinch was used in those specifications.

[00:03:52] Speaker 03:
When we import what you call the negative limitation from the specification into the claim, what is the standard for doing that?

[00:04:01] Speaker 03:
Does it have to be a disclaimer?

[00:04:03] Speaker 03:
What typically, if we were to import a limitation from the claim, even if it doesn't say in this environment and such,

[00:04:10] Speaker 03:
What sort of standard would we apply?

[00:04:15] Speaker 03:
I know we have some case law, for example, that says it has to be clear and unambiguous if it's a disclaimer.

[00:04:22] Speaker 03:
What about lexicography?

[00:04:27] Speaker 03:
I'm going a little bit outside of what the arguments were.

[00:04:31] Speaker 03:
I just was trying to understand, in what circumstances would it be appropriate, you think, for the court to

[00:04:39] Speaker 03:
take a limitation like in the specification here and actually bring it into the claim.

[00:04:45] Speaker 00:
Um, I would point to another example, the embodiments that even when you have a single embodiment, this court has consistently rejected the idea that if there's something in the body that you don't have to, and so I would get to it that way.

[00:05:01] Speaker 00:
And I think that's

[00:05:06] Speaker 00:
You have one embodiment in your patent, and there's something in it.

[00:05:11] Speaker 00:
You don't import that, particularly a negative limitation, into the claim language from that one embodiment.

[00:05:18] Speaker 00:
And this court has been very clear over time not doing that.

[00:05:22] Speaker 03:
I don't recall.

[00:05:22] Speaker 03:
Are there any dependent claims that talk about whether the person's hand can touch the sink?

[00:05:29] Speaker 03:
I do not believe so.

[00:05:31] Speaker 03:
OK.

[00:05:35] Speaker 01:
If we think one or both of the claim constructions are wrong, your request is that we would then vacate and remand for a new trial on infringement, is that right?

[00:05:45] Speaker 01:
Absolutely, yes.

[00:05:45] Speaker 01:
And if we were to do that, would the construction you would have us give to the district court be what you proposed at the claim construction hearing?

[00:05:52] Speaker 00:
Yes, Your Honor.

[00:05:53] Speaker 01:
So it's in the claim construction briefing that you gave to us?

[00:05:55] Speaker 00:
Yes, Your Honor.

[00:05:57] Speaker 00:
And again, up in the full disclosure in the brief, we'd come up with whatever feels appropriate, but we would urge you to double our construction.

[00:06:10] Speaker 03:
Do you want to address figurative payment?

[00:06:13] Speaker 00:
Yes, I would like to address the figurative payment.

[00:06:16] Speaker 00:
Generally, there's a principle that intent is not part of patent infringement.

[00:06:21] Speaker 00:
And that's not, that sometimes the cases are a little murky.

[00:06:24] Speaker 00:
But the idea is, it's a pretty solid idea.

[00:06:28] Speaker 00:
And the way that it was used in this case by Able Defendants' Trial Council was not, that it was very clear that he hammered away over and over and over again.

[00:06:38] Speaker 00:
In our brief, it's very clear, the record is very clear, that he

[00:06:42] Speaker 00:
told the jury that they didn't specifically intend to design this flush face as a handle, therefore it doesn't meet French.

[00:06:50] Speaker 00:
It doesn't meet that second part of the claim.

[00:06:53] Speaker 03:
And it's your view that all that's required is that it be capable of being?

[00:06:59] Speaker 00:
Capable, suitable, yes.

[00:07:01] Speaker 00:
But again, even if you look at the claim construction and say, well, the court wasn't unreasonable in what they did,

[00:07:09] Speaker 00:
How it ended up, how the evidence came in, the arguments that the defense counsel made in their second and third summary judgment brief, they were driving at intent from day one.

[00:07:19] Speaker 00:
And so we wanted to object to it, but then we asked the judge.

[00:07:22] Speaker 00:
We said, OK, in the opening and the evidence has come in and all the argument, he's driving at intent.

[00:07:30] Speaker 00:
You've got your construction, you're going to go forward with your construction, at least give an instruction that says, this is the path along, there's no intent requirement, so we can argue that for the jury.

[00:07:40] Speaker 00:
And the judge declined and said it's not in the pattern instructions, I'm not going to give it.

[00:07:44] Speaker 00:
So even if you agree with them and say, well, I don't disagree with them, the way that it came out here was wildly prejudicial to us.

[00:07:53] Speaker 00:
The defendants council did a great job for its client, but there was definitely intent in the agreement.

[00:07:58] Speaker 04:
Can I just get some confirmation on some answers that you gave to some of my colleagues' questions?

[00:08:03] Speaker 04:
So I do see what constructions you proposed in your claim construction briefing below, and that was helpful.

[00:08:10] Speaker 04:
But I noticed that you said something slightly different in your brief to us.

[00:08:14] Speaker 04:
on, for example, cinch, I just want to make sure I know what construction you would say your proposing is the right one for each of these sort of terms that are in dispute.

[00:08:25] Speaker 04:
So let me maybe help you with this.

[00:08:27] Speaker 04:
So I saw that you said on page 14 of the blue breed, you have a portion that you're talking about with respect to cinch about a string, elastic band, or metal.

[00:08:38] Speaker 04:
And then I was comparing that to appendix page 95,

[00:08:43] Speaker 04:
And I saw a slightly different language in the rule chart that I was looking at.

[00:08:49] Speaker 04:
So I just wanted to make sure I know where you stand on the construction.

[00:08:53] Speaker 04:
And maybe the answer is the answer you gave to Judge Stark.

[00:08:57] Speaker 04:
And it's what you said on appendix page 95, but then you said something slightly different on the blue brief, so I just wanted clarification.

[00:09:03] Speaker 00:
We, and Your Honor, candidly, we also have two sets of layers on this map.

[00:09:08] Speaker 00:
And we had my, initially the client was represented by a lawyer of Texas, and then we came in, the claim went out for a ex parte A re-examination.

[00:09:19] Speaker 00:
And then my partner and I came in and took over the case.

[00:09:22] Speaker 00:
So there may be... Understood.

[00:09:24] Speaker 04:
But can you just tell me where you stand now?

[00:09:25] Speaker 04:
That would be helpful.

[00:09:26] Speaker 00:
Yes.

[00:09:27] Speaker 00:
And I'm sorry, which appendix page you said?

[00:09:29] Speaker 00:
Ninety-three?

[00:09:29] Speaker 04:
Ninety-five and Louprey 14.

[00:09:32] Speaker 04:
That was where I was seeing a slight discrepancy.

[00:09:45] Speaker 04:
It's more of a clarification question.

[00:09:46] Speaker 00:
I'm not trying to... Yes, Your Honor.

[00:09:52] Speaker 03:
The only thing I want to add to this is that you can't propose a new construction on appeal.

[00:09:58] Speaker 00:
No, I'm just talking about removing.

[00:10:00] Speaker 00:
I'm not.

[00:10:01] Speaker 00:
I don't believe we attempted to propose a new construction.

[00:10:06] Speaker 00:
I think we just wanted to remove the language about that.

[00:10:11] Speaker 03:
You're OK with the district.

[00:10:12] Speaker 03:
I mean, yeah, just your course construction.

[00:10:14] Speaker 03:
So long as it doesn't have the negative limitation.

[00:10:17] Speaker 00:
Yes, your honor.

[00:10:17] Speaker 00:
Yes, I'm sorry.

[00:10:18] Speaker 00:
And I think that's the only thing we were asking for is to remove that.

[00:10:23] Speaker 04:
On the sanction point, are you only contesting the grant of the attorney's fees and costs and assuming you didn't have an issue with the continuation of the trial?

[00:10:43] Speaker 00:
I'm going to answer your question, yes or no, and then I'm going to try to explain.

[00:10:45] Speaker 00:
I appreciate that.

[00:10:47] Speaker 00:
Yes, but the order that the judge entered at the November 2021 trial setting, it continued the trial.

[00:10:57] Speaker 00:
The defendant had asked on Sunday, it continued the trial and denied the defendant's motion to dismiss because the defendant moved to dismiss Sunday before the trial saying, you've excluded the assignment.

[00:11:10] Speaker 00:
That is jurisdictional.

[00:11:12] Speaker 00:
You may not go forward.

[00:11:13] Speaker 00:
The case is dead in the water.

[00:11:15] Speaker 00:
We stood up the next morning and said, Your Honor, I completely agree with the defendant's counsel without the assignment.

[00:11:20] Speaker 00:
You don't literally don't have the authority to go forward.

[00:11:22] Speaker 00:
It was an error.

[00:11:24] Speaker 00:
We are challenging the sanction that was entered against us, the attorney's fees.

[00:11:28] Speaker 00:
The order continuing in the trial

[00:11:30] Speaker 00:
was not problematic.

[00:11:33] Speaker 00:
The issue, there is a statement or two in that order that mentions that we produced the assignment, the one page assignment three days before trial.

[00:11:44] Speaker 00:
And that's factually inaccurate.

[00:11:46] Speaker 00:
We produced it, well it was a month before, it was a mistake, well it was my mistake.

[00:11:50] Speaker 00:
And I explained that at length, but then we were contesting the imposition of fees.

[00:11:56] Speaker 00:
The court left it open as the defendant may file a motion for attorney's fees, they may impose attorney's fees.

[00:12:03] Speaker 00:
So we are attacking the sanctions order specifically, but part of that was it was based upon an erroneous finding, because there are no findings in the attorney's fee order about prejudice.

[00:12:14] Speaker 00:
And there were, and they found in the November order there's a line in there that says three days, disclosing the three days before trial is prejudicial.

[00:12:21] Speaker 01:
It's confusing because the district court also says elsewhere repeatedly that he recognizes he produced it 30 days or some of it two weeks ahead.

[00:12:31] Speaker 01:
What what happened?

[00:12:32] Speaker 01:
Okay, I will try to cut to the short version.

[00:12:36] Speaker 00:
Yeah, discovery.

[00:12:36] Speaker 00:
There were this case had been pennies.

[00:12:39] Speaker 01:
I should be clear.

[00:12:40] Speaker 01:
I mean, what I just assume the district judge just misspoke once or twice and saying it was three days because in various other places, it seems that he clearly understood.

[00:12:50] Speaker 01:
And it was conceded, I think, that you turned these documents over about 30 days ahead.

[00:12:55] Speaker 00:
Yes.

[00:12:56] Speaker 00:
I don't know why that was in two places.

[00:12:59] Speaker 00:
But we turned it over October 15, a month before trial.

[00:13:04] Speaker 00:
It had been in the record.

[00:13:06] Speaker 00:
It had been referred to.

[00:13:07] Speaker 00:
The issues we were talking about were in validity and not infringement.

[00:13:15] Speaker 00:
But they had it 30 days in advance.

[00:13:19] Speaker 01:
I mean, I was surprised to see an appeal on an $11,000 question.

[00:13:22] Speaker 01:
That doesn't mean you can't appeal it.

[00:13:23] Speaker 01:
It doesn't mean you're not right.

[00:13:26] Speaker 01:
But I now wonder, are you looking for us to say it was clear error to say that you produced it three days ahead?

[00:13:33] Speaker 01:
Is that what this is about?

[00:13:35] Speaker 00:
No, it was the imposing $11,000 sanction.

[00:13:37] Speaker 00:
Because the case, there was another case that we had relied on.

[00:13:40] Speaker 03:
Can I ask you, when you say imposing $11,000, you mean abuse of discretion.

[00:13:45] Speaker 03:
The court didn't have the discretion

[00:13:47] Speaker 03:
Oh, no, no, it had the discretion, yes.

[00:13:50] Speaker 03:
So is it the finding that it was prejudicial?

[00:13:54] Speaker 00:
There was no evidence in the record whatsoever that there was prejudice.

[00:13:58] Speaker 03:
What about prejudice caused by delay of trial?

[00:14:02] Speaker 03:
Everybody's showing up in person and being ready for trial and then happen to delay trial.

[00:14:09] Speaker 03:
I agree, it's a little unclear what the prejudice is that he's referring to in his sentence and his sanctions order.

[00:14:15] Speaker 03:
But what if that's the prejudice he was referring to?

[00:14:22] Speaker 00:
As having done something, it's a little difficult to come back and say, I have been in a number of situations where I've had trials.

[00:14:32] Speaker 00:
I've worked weekends.

[00:14:33] Speaker 00:
I've skipped family events.

[00:14:35] Speaker 00:
Clients have come in.

[00:14:36] Speaker 00:
Things have been done.

[00:14:37] Speaker 00:
Something's been continued for one reason or another.

[00:14:39] Speaker 00:
Frequently similar situations where something comes up, sometimes frankly more egregious than this.

[00:14:46] Speaker 00:
The case that we cited, the Arkansas case, the judge merely continued the trial.

[00:14:52] Speaker 00:
We just asked the judge to continue the latter.

[00:14:55] Speaker 00:
impose a lesser sanction or consider lesser sanctions, we didn't specifically, no one specifically said the trial must be continued.

[00:15:03] Speaker 00:
That was the remedy the judge came up with.

[00:15:05] Speaker 00:
But the case we cited to him, she just continued the trial, no one got sanctioned, and she ran some of the judgment forms like that.

[00:15:13] Speaker 00:
I don't view that as a prejudice.

[00:15:15] Speaker 03:
What do you think the prejudice was that he was referring to?

[00:15:17] Speaker 03:
Do you think it was just three days before trial and

[00:15:20] Speaker 03:
Or was it the fact that he felt he had to continue trial?

[00:15:25] Speaker 00:
I don't know, because I did not consider any of that prejudice.

[00:15:28] Speaker 00:
And the defendant, the prejudice that they identified was that we didn't get the dismissal we wanted.

[00:15:34] Speaker 01:
The $11,000 are there about, that was the measure of their cost for showing up for trial.

[00:15:41] Speaker 01:
Isn't that right?

[00:15:41] Speaker 01:
Isn't that where that number came from?

[00:15:43] Speaker 01:
Yes.

[00:15:49] Speaker 03:
Okay, well thank you.

[00:15:50] Speaker 03:
Let's hear from Mr. Caston.

[00:15:52] Speaker 02:
May it please the court.

[00:16:05] Speaker 02:
Infinity asked that this court affirm the district court's judgment because the district court conducted the necessary claim construction and instructed the jury properly.

[00:16:17] Speaker 02:
It also did not abuse its discretion involving the sanctions that the court was just discussing.

[00:16:23] Speaker 02:
Let's get to cinch.

[00:16:26] Speaker 02:
Here, the specification gives clear language

[00:16:30] Speaker 02:
about guidance on what cinch is, and it states, additionally, cinch and nozzle do not directly contact the user when bathing with the device as it may be abrasive or uncomfortable to the user.

[00:16:44] Speaker 02:
This statement in the specification is not regarding a particular embodiment.

[00:16:50] Speaker 04:
It is applicable to the... Is there anything else in terms of the intrinsic record that you would say supports the district court's claim construction on cinch, besides the part you just pointed us to?

[00:16:59] Speaker 02:
Yes, Your Honor.

[00:17:00] Speaker 02:
We think that there's at least four or five other things in the intrinsic record.

[00:17:04] Speaker 02:
One is that when using that language about no contact, the

[00:17:13] Speaker 02:
Language states that when using, excuse me, it does not directly contact the user when bathing with the device.

[00:17:21] Speaker 02:
And in that discussion, it uses device 10, which is the entire device.

[00:17:28] Speaker 02:
The district court picked up on that because that means that it's not as far as a specific environment that's involved.

[00:17:35] Speaker 03:
Is it device 10?

[00:17:37] Speaker 03:
Why isn't device 10 an environment?

[00:17:38] Speaker 02:
I mean, is it?

[00:17:39] Speaker 02:
Device 10, as I understand, is the device itself, Your Honor.

[00:17:43] Speaker 03:
So somebody's figure, their main figure, has to be the only thing that they can... When someone has a figure and a patent, that is what the invention is.

[00:17:53] Speaker 03:
It can't be anything broader than that.

[00:17:55] Speaker 03:
Don't the claims, the plain language of the claims, define what the invention is?

[00:18:00] Speaker 02:
They do, Your Honor.

[00:18:01] Speaker 03:
Is this requirement for the cinch expressed through claims?

[00:18:06] Speaker 02:
Is it in the claims?

[00:18:08] Speaker 02:
No, it is not in the claims.

[00:18:10] Speaker 02:
But it is, Your Honor, in what we had just talked about in the specification.

[00:18:14] Speaker 03:
In addition to that... Is this the only sentence that describes the word cinch in which the word embodiment or may is not included?

[00:18:25] Speaker 02:
That I don't know without looking.

[00:18:26] Speaker 02:
I don't recall that there is another one.

[00:18:31] Speaker 02:
But if you look at, for example, you know, this discussion is supposed to be as part of an embodiment in Figure 4.

[00:18:39] Speaker 02:
But if you look once again, Your Honor, at this no contact requirement, it once again not only uses Device 10 generally, but there is no reference in Figure 4 to Device 10.

[00:18:53] Speaker 02:
It's not, at that point, you're no longer talking about Figure 4.

[00:18:57] Speaker 02:
You're talking about the device generally.

[00:19:00] Speaker 04:
And in addition... Just to make sure I stick it back on my question, it sounds like you're still talking to us about that one portion of the specification, right?

[00:19:07] Speaker 04:
You're not pointing me to other parts of the intrinsic record?

[00:19:10] Speaker 02:
There actually are, Your Honor, other parts, but I haven't... Yes, let me get to those right now and answer your question.

[00:19:17] Speaker 02:
For example, there is a discussion about...

[00:19:22] Speaker 02:
that the cinch can be made of metal.

[00:19:26] Speaker 02:
And if it's going to be made of metal, and this is just one embodiment, I will admit, but if it's going to be made of metal that is exposed

[00:19:38] Speaker 02:
and it can contact very sensitive parts of the skin of a male, female, or infant body, it's not going to provide a comfortable experience.

[00:19:47] Speaker 03:
The problem with that, the problem with this argument that I'm having is I don't think the claim requires a metal cinch.

[00:19:54] Speaker 02:
It does not require it, but it can be one embodiment of it.

[00:19:58] Speaker 03:
But it's hard.

[00:19:59] Speaker 03:
What if it's not metal?

[00:20:00] Speaker 03:
What if it's not?

[00:20:01] Speaker 03:
What if the cinch, because the claim doesn't say what the cinch is made of,

[00:20:05] Speaker 03:
What if it's not a material that would be hard on the body that we're supposed to still read in because there's one sentence in the specification that says that you want to have the hand not directly contact it, that we're supposed to read that into the claim?

[00:20:19] Speaker 02:
We think so, Your Honor.

[00:20:20] Speaker 02:
We think that if it can be metal, then it shouldn't be contacting the skin.

[00:20:29] Speaker 02:
It is also, Your Honor, there's discussions in here about how the pleats... What if it's not metal?

[00:20:34] Speaker 03:
What if it's an embodiment in which it's not metal, though?

[00:20:37] Speaker 02:
Well, it could still be of another hard material that would be abrasive to the skin, Your Honor.

[00:20:43] Speaker 02:
And in addition, there's discussion within the specification that the pleats cover the cinch.

[00:20:52] Speaker 04:
What is your best case?

[00:20:53] Speaker 04:
to say that we need to read in this portion of the specification that you've been talking to all of us about into the claims.

[00:21:03] Speaker 02:
The best case?

[00:21:04] Speaker 04:
Yes, please.

[00:21:05] Speaker 02:
I think there's a discussion in the Thorner case that's been cited, and it specifically says that a feature can be outside

[00:21:13] Speaker 02:
the reach of the patent's claims, even though the language of the claims itself, read without reference to the specification, might be considered broad enough to encompass that feature.

[00:21:26] Speaker 02:
And so we think that there is an express disavowal in this matter when it talks about no contact by the user.

[00:21:34] Speaker 02:
Did you argue express disavowal below to the district court?

[00:21:39] Speaker 02:
I don't remember that we used the term express disavowal, but we did talk about how these particular portions of the specification under Vitronix and Phillips inform what the claims are in this matter.

[00:21:57] Speaker 03:
Express disavowal is a pretty hard standard to satisfy.

[00:22:01] Speaker 03:
Why do you think you've satisfied that here?

[00:22:05] Speaker 02:
Your Honor, we think that the plain language

[00:22:09] Speaker 02:
Cinch does not directly contact the user when bathing with the device, as it may be abrasive or otherwise uncomfortable to the user, meets that language.

[00:22:19] Speaker 02:
And in addition, the specification criticizes and disparages the prior art for providing an uncomfortable experience to the user.

[00:22:31] Speaker 02:
For example, column 1, lines 32 through 36 of the patent talk about how there were specific concerns that soap dispensers in the prior art may scratch the user during such use.

[00:22:45] Speaker 04:
If we agree with Sorrell that the district court erred with respect to the claim constructions, do you agree that that was a least prejudicial error?

[00:22:55] Speaker 01:
Could you repeat the question, Your Honor?

[00:22:56] Speaker 04:
Sure.

[00:22:57] Speaker 04:
If we agree with your opposing counsel that there was an error with respect to the claim constructions here, do you agree that that error would be prejudicial?

[00:23:05] Speaker 02:
We would not agree with that, Your Honor.

[00:23:07] Speaker 02:
Why not?

[00:23:10] Speaker 02:
As to the claim construction regarding figurative handle, we think that there's other evidence on figurative handle that would not require, that would not be prejudicial error and not require a new trial.

[00:23:24] Speaker 02:
For example, there was discussion there about how the ploy, the plush toy is essentially not suitable or capable because it turns soft when it was wet and it was not rigid.

[00:23:36] Speaker 03:
Isn't that a prior question for the fact finder?

[00:23:41] Speaker 03:
You're saying whether that, you're saying you have evidence that would show, even under a broader construction, that the accused device doesn't have a figurative handle, right?

[00:23:52] Speaker 03:
Because it would get wet.

[00:23:54] Speaker 03:
But isn't that for the jury to decide that factual question?

[00:23:59] Speaker 02:
Well, I think the answer is yes, generally.

[00:24:02] Speaker 02:
But here, when we're looking at it from this standpoint, if there is evidence that supports what would be, if the court decided, a correct claim of construction.

[00:24:13] Speaker 03:
It's only if that evidence is undisputed, right?

[00:24:17] Speaker 02:
I don't think it necessarily has to be undisputed.

[00:24:20] Speaker 02:
I think it just has to be overwhelming, as I recall.

[00:24:23] Speaker 02:
I don't think so.

[00:24:26] Speaker 01:
Isn't what happened here, you got a construction that implied intent was necessary on a figure handle term.

[00:24:33] Speaker 01:
You litigated the case and told the jury they had to find intent, and you said the evidence doesn't show intent.

[00:24:39] Speaker 01:
Not even sure that that was in dispute.

[00:24:42] Speaker 01:
If we were to now say that the proper construction does not require an intent, isn't there at least some likelihood the verdict would have been different and therefore we'd have to send it back?

[00:24:52] Speaker 02:
Your Honor, we think that the intent that's at issue here is different.

[00:24:57] Speaker 02:
We don't think that this is an intent to infringe that's at issue.

[00:25:03] Speaker 02:
We think this is a definitional intent about what a particular item is for.

[00:25:08] Speaker 01:
I get that.

[00:25:09] Speaker 01:
But let's say, just for the sake of argument, that we think that that was an incorrect construction, and you shouldn't have been allowed to make that argument to the jury.

[00:25:18] Speaker 01:
Isn't that a prejudicial error?

[00:25:22] Speaker 01:
I know you don't concede it's an error, but if we were to find it's an error, how is it not prejudicial?

[00:25:28] Speaker 02:
I think it's, not to repeat myself, but I think going back to the evidence as far as that it's not a capable item that can be a handle, talking about the plush toy when it gets wet, for example.

[00:25:44] Speaker 02:
I think that's the evidence that would be towards that.

[00:25:48] Speaker 02:
And talking about the intent,

[00:25:51] Speaker 04:
Do you at least concede though that there would have been prejudicial error with respect to the, if we find that the court erred below with respect to the such construction, would you concede that that would

[00:26:06] Speaker 04:
then be some type of prejudicial error here?

[00:26:08] Speaker 02:
I think that we probably would, Your Honor.

[00:26:11] Speaker 02:
As to the different definitions that Sorrell proposed as to the figure to Handel, they asked that it be able to be grasped by the hand.

[00:26:24] Speaker 02:
They asked that it be

[00:26:25] Speaker 02:
capable of being grasped by the hand.

[00:26:27] Speaker 02:
They ask that it be suitable of being grasped by the hand.

[00:26:31] Speaker 02:
But there's lots of items, common items frankly, that just because they are able, suitable, or capable of being grasped by the hand, that they are not or do not have handles.

[00:26:43] Speaker 02:
For example, the water bottles in front of your honor, those are capable or suitable of being grasped by the hand.

[00:26:49] Speaker 02:
They do not have a handle.

[00:26:51] Speaker 02:
Similarly, a cell phone, for example, is indeed made to be grasped by the hand, but it doesn't have a handle.

[00:27:00] Speaker 02:
And so we think that the handle, when that is mentioned, it is designed to be grasped by the hand.

[00:27:06] Speaker 02:
And that's what the district court's construction order was getting at.

[00:27:11] Speaker 01:
I'd like to, if you don't mind, talk about the sanctions issue.

[00:27:15] Speaker 01:
Am I correct that it was undisputed in the district court that your side got the assignment documents from the other side approximately 30 days before trial?

[00:27:26] Speaker 01:
So is it clearly erroneous, the various statements that we see in the record where the district court seems to be finding that you only got them roughly three days before trial?

[00:27:38] Speaker 02:
I think as Your Honor had mentioned in the prior questioning, that yes, it

[00:27:44] Speaker 02:
I think there was a mix-up in the order, because in one of the orders, he does say three days.

[00:27:50] Speaker 02:
But both orally, and this is at Appendix 1032, and in a written order, I believe it's on the motion to dismiss, Appendix 1476, he says that it's about a month before trial.

[00:28:04] Speaker 02:
So the trial judge was aware that we had had them about 30 days before trial.

[00:28:11] Speaker 01:
That's correct.

[00:28:14] Speaker 01:
He seems to make different findings at different times.

[00:28:21] Speaker 01:
And I get that.

[00:28:23] Speaker 01:
It's hard to be 100% correct all the time.

[00:28:28] Speaker 01:
Nobody can do that.

[00:28:28] Speaker 01:
But why should we not say that in this context that was clear error, and therefore the sanctions based on that are an abuse of discretion?

[00:28:38] Speaker 02:
I think because leading up to trial, Your Honor,

[00:28:42] Speaker 02:
that evidence had been excluded.

[00:28:45] Speaker 02:
And my client had relied on that exclusion up until the day before trial, when then, on the morning of trial, the judge decided to continue the case.

[00:28:57] Speaker 02:
At that point, our attorneys and everybody else had already traveled to the trial.

[00:29:02] Speaker 01:
That all goes to the prejudice.

[00:29:04] Speaker 01:
But my question, I think, is if the order is based on a clear error of fact, i.e.

[00:29:09] Speaker 01:
when you got the documents,

[00:29:11] Speaker 01:
why is that not an abuse of discretion, even if you were prejudiced?

[00:29:16] Speaker 02:
I think the answer is that, I think that even though the order says three days, the judge was well aware that it was actually 30 days, and in fact, in another written order, had recognized it was 30 days.

[00:29:30] Speaker 01:
So it's not really clear error, you would say?

[00:29:32] Speaker 02:
That's correct, Your Honor.

[00:29:38] Speaker 02:
Your honor, we would ask that the judgment be affirmed both as to construction of cinch, the construction of figurative handle, and that there was no abuse of discretion as to sanctions.

[00:29:49] Speaker 03:
Thank you, Mr. Caston.

[00:29:51] Speaker 03:
Thank you very much.

[00:29:55] Speaker 03:
Mr. Parsons, I'm going to give you another minute.

[00:30:03] Speaker 00:
Thank you, Your Honor.

[00:30:05] Speaker 00:
I just want to pick up on something that Judge Cunningham asked about prejudice.

[00:30:11] Speaker 00:
There was sufficient evidence in the record regarding

[00:30:19] Speaker 00:
I wish I brought one with me.

[00:30:21] Speaker 00:
Whether you could grab the face of the plush toy that was in the poop.

[00:30:25] Speaker 00:
I questioned Mr. Sorrell, and this is on pages 27, 28, and 29 of our brief.

[00:30:32] Speaker 00:
I said, can you grab the character if he was on the sand?

[00:30:35] Speaker 00:
OK, are you holding the character?

[00:30:36] Speaker 00:
All right, so you're holding onto the ball for the character.

[00:30:39] Speaker 00:
I'm holding onto the character.

[00:30:41] Speaker 00:
Is your hand touching the cinch?

[00:30:42] Speaker 00:
No, sir.

[00:30:43] Speaker 00:
Does the character come out easily?

[00:30:44] Speaker 00:
No, not easily.

[00:30:46] Speaker 00:
Mr. Sorrell may have already covered this, but just one out of pure paranoia.

[00:30:50] Speaker 00:
Is the character on the dependence product, is it suitable to grab?

[00:30:52] Speaker 00:
Yes.

[00:30:53] Speaker 00:
All right.

[00:30:53] Speaker 00:
Is it secure?

[00:30:54] Speaker 00:
Yes, sir.

[00:30:55] Speaker 00:
Is it your opinion that it sticks out far enough for someone to grab it?

[00:30:58] Speaker 00:
Yes.

[00:30:59] Speaker 00:
So Mr. Sorrell is on the stand handling this.

[00:31:01] Speaker 00:
I question the infinities representative.

[00:31:04] Speaker 00:
I said, Mr. Keller, I said, all right, can I use this as a handle grabbing the plush toy if I was bathing?

[00:31:12] Speaker 00:
If you say so.

[00:31:13] Speaker 00:
Am I using it as a handle now?

[00:31:14] Speaker 00:
Sure.

[00:31:15] Speaker 00:
So I can use it as a handle.

[00:31:16] Speaker 00:
Sure.

[00:31:17] Speaker 00:
So there was evidence in the record that this construction, if our construction had adopted, the jury could have returned the verdict in our favor.

[00:31:27] Speaker 03:
OK.

[00:31:27] Speaker 03:
Thank you very much.

[00:31:30] Speaker 03:
Thank you.

[00:31:30] Speaker 03:
We thank both counsel for your argument today and the case will be under submission.

[00:31:36] Speaker 03:
We are adjourned for today.