[00:00:00] Speaker 00: The first case for argument this morning is 22-1098, Ultravision versus GoVision. [00:00:07] Speaker 00: Mr. Fabricant, whenever you're ready. [00:00:13] Speaker 02: Good morning, Your Honors. [00:00:17] Speaker 02: We're here after a full trial on the merits in the Eastern District of Texas, and the primary focus of the [00:00:25] Speaker 02: the appeal with respect to the Hall patents, the 782 patent and the 294 patent, deals with the claim construction by the district court after the Markman hearing, before trial, that the terms waterproof and sealed to be waterproof should be limited to the ingress of water covered by IP 65 or higher. [00:00:50] Speaker 02: So that was the claim construction. [00:00:52] Speaker 02: Importantly, [00:00:54] Speaker 02: Neither party requested that the IP ratings be any part of the claim construction. [00:01:01] Speaker 02: Absen, in fact, proposed a very broad construction, preventing water from entering the panel. [00:01:08] Speaker 04: What do you think the significance is of the fact that the trial court adopted a construction different from either of the proposed ones? [00:01:19] Speaker 04: That's certainly a permissible thing for the trial court, as it would be for us. [00:01:22] Speaker 04: So why is it significant that it was different? [00:01:27] Speaker 02: I think it's significant. [00:01:28] Speaker 02: I agree with Your Honor that the trial court, just like this court, can adopt whatever construction it believes is reasonable and proper. [00:01:35] Speaker 02: But I think it's significant because it shows [00:01:38] Speaker 02: The defendant absent in considering claim construction, as all parties do in the claim construction procedure, didn't believe itself that an IP65 or any IP rating should be involved with the construction of waterproof or sealed to be waterproof. [00:01:54] Speaker 02: So I think it's important because this is a company which is in the business. [00:01:58] Speaker 02: That's their business. [00:01:59] Speaker 02: They sell very large amounts of these panels, and they understand what waterproofing is. [00:02:04] Speaker 02: And that business didn't believe it was something which should be included. [00:02:08] Speaker 02: Now, I understand, obviously, the district court, starting with the magistrate Judge Payne and then, as confirmed over our objections by Judge Gilstrap, believed that the examples of IP ratings throughout the specification rose to the level of allowing the court to import [00:02:27] Speaker 02: those examples, those embodiments into the claim itself. [00:02:31] Speaker 02: And respectfully, I believe the court erred for the following reason. [00:02:35] Speaker 02: There are many IP ratings, as this court has seen from the brief, 65, 66, 67, 68. [00:02:41] Speaker 02: We'll talk about 69 in a second. [00:02:43] Speaker 02: But those are pursuant to our own expert who did put in a declaration on claim construction, and absence did not. [00:02:50] Speaker 02: Those are examples of the level of protection [00:02:54] Speaker 02: which one might seek in this type of industry, they're not the protection itself. [00:03:00] Speaker 02: The protection itself is to prevent water from entering the panel. [00:03:04] Speaker 02: And I think very, very important and telling on this point, evidentiary-wise, is when we went to trial, and the entire defense for the entire trial obviously was, we are not IP65. [00:03:16] Speaker 02: And clearly, all of their demonstrators, all of the evidence, [00:03:20] Speaker 02: Repeatedly, we are not IP 65 and therefore we don't infringe. [00:03:25] Speaker 02: There's no question that was the heart of the case. [00:03:27] Speaker 04: But very importantly is... That was the heart of the case after the claim construction. [00:03:31] Speaker 02: After the claim construction. [00:03:32] Speaker 04: It would be kind of astonishing if it weren't. [00:03:35] Speaker 02: No, no, no. [00:03:36] Speaker 02: But the point is this. [00:03:38] Speaker 02: Equally true, they claim they were IP 54, which is a lesser standard. [00:03:45] Speaker 02: And yet, [00:03:45] Speaker 02: All of the evidence that was presented through their corporate witnesses and through others at trial showed that their panels were waterproof. [00:03:53] Speaker 02: If you put aside the IP ratings, they're selling tens of millions of dollars of panels to outdoor stadiums, like the Dallas Cowboy Stadium. [00:04:03] Speaker 02: They're out in the elements. [00:04:04] Speaker 02: They're out in the weather. [00:04:05] Speaker 02: And the testimony at trial from their own corporate witnesses, including the president of the company, was that they didn't have water problems. [00:04:12] Speaker 02: They didn't leak. [00:04:13] Speaker 02: They didn't fail. [00:04:15] Speaker 02: So we know from their own evidence that a panel with less than IP65 can be waterproof. [00:04:21] Speaker 00: Well, you're mixing up. [00:04:23] Speaker 00: fairly two different issues. [00:04:25] Speaker 00: One is whether the IP rating should be included at all in the claim construction or whether they matter at all. [00:04:30] Speaker 00: And the other is if they do, what should the ratings be? [00:04:35] Speaker 00: So there are kind of two separate, two parts to this question, right? [00:04:39] Speaker 00: And I mean, just one of the things, I mean, the most important thing that I thought about the district court's construction was his reliance on the intrinsic record. [00:04:48] Speaker 00: And it seems like he had quite a bit to go on. [00:04:52] Speaker 00: Is there anything in the intrinsic record in your view that points in the other direction other than your argument, well, you need toxicography, and this doesn't rise to toxicography? [00:05:02] Speaker 02: Yes, Your Honor, I believe so. [00:05:03] Speaker 02: In the specification, there are examples which speak to environmental protection, including preventing solid particles [00:05:16] Speaker 02: as well as water from intruding into the panel. [00:05:20] Speaker 02: And the reason that's important is claim one of the 782 patent is waterproof. [00:05:28] Speaker 02: They're trying to keep water out of the panel. [00:05:30] Speaker 02: It's not a claim directed at keeping solid particles out of the panel. [00:05:35] Speaker 02: And that's very important because these panels are also out in the desert environments, dust hole environments. [00:05:41] Speaker 02: So keeping solid particles out is very important. [00:05:44] Speaker 02: I think that's where the judge didn't pay enough attention to the fact that the portions of the spec dealing with environmental conditions, which prevent solid particles and water, and now in the context of that teaching and disclosure and the specification, now look at claim one. [00:06:05] Speaker 00: Now you see. [00:06:07] Speaker 00: Are you saying, therefore, that the IP ratings are inapt because they include not just waterproofing and solid particles? [00:06:16] Speaker 00: And how can you say that when the dependent claims specifically reference IP ratings? [00:06:22] Speaker 00: And obviously, they have to be narrower and be included within the independent claim. [00:06:30] Speaker 02: Your Honor, what I'm saying is the [00:06:33] Speaker 02: dependent claim six, which specifically identified the IP ratings. [00:06:38] Speaker 02: That was speaking to protect a panel from particles as well as water. [00:06:44] Speaker 02: Claim one only talks about water, waterproof [00:06:48] Speaker 00: I'm sorry to interrupt, but your time is short. [00:06:52] Speaker 00: One of the things that Judge Giltstrap, in addition to, as I said, predominantly the intrinsic record, he did take Ultravision's expert statement that a person skilled in the art would use the IP ratings to describe how waterproof something is. [00:07:08] Speaker 02: Your Honor, what our expert said in his declaration and testimony was that it was a [00:07:15] Speaker 02: would be understood by a person of ordinary skill in the art to understand a level of protection. [00:07:22] Speaker 02: But his testimony and his opinion was that it's not a person of ordinary skill in the art would not look to an IP rating to determine the waterproofing itself, but rather a level of protection. [00:07:35] Speaker 02: And we have in our briefs, and we've cited to the portions of Mr. Crudel's declaration at [00:07:45] Speaker 02: at appendix 3228, 3229, 3230, 3231, portions where he expressly and clearly sets forth his opinion that based upon his experience, a person of ordinary skill in the art would understand that waterproof in the context of modular outdoor usage, the LED panels to mean a level of protection against water ingression. [00:08:14] Speaker 02: so that the product will survive in the environment to which it is installed. [00:08:19] Speaker 02: And he has many different opinions, but they're all basically saying that a person of ordinary skill would understand that it's to protect the ingress of water, and that the IP ratings would not be used by a person of ordinary skill in the art. [00:08:33] Speaker 02: It would not be necessary to determine waterproofing. [00:08:37] Speaker 02: And he also offers that with respect [00:08:39] Speaker 02: his opinion that he doesn't believe the claims are indefinite for that reason. [00:08:45] Speaker 04: Can I just ask you this? [00:08:46] Speaker 04: I think I read that the [00:08:51] Speaker 04: In the IP figures, the first digit is about not water, and the second digit is about water. [00:09:01] Speaker 04: So would this be any different if the district court, instead of saying 65 or higher, had said an IP rating in which the second digit is five or higher? [00:09:17] Speaker 02: Well, it would have clarified that he's directing it solely to water. [00:09:21] Speaker 02: as opposed to solid particles. [00:09:23] Speaker 04: And the water was what was in dispute at the trial. [00:09:27] Speaker 04: It was all about whether the water rating of their product was higher than, was five or higher or lower, right? [00:09:37] Speaker 04: Was there any litigation about the first digit? [00:09:41] Speaker 02: No, that is true because of the construction, which we obtained from the court. [00:09:44] Speaker 02: Both sides had the director's attention to the construction, and there was no way to prove infringement. [00:09:51] Speaker 02: in light of the construction without proving there was an IP 65 rating or greater. [00:09:56] Speaker 02: That's what we were forced to do in light of the construction. [00:10:01] Speaker 02: Had we not had that construction, if the judge had ordered a construction that was based on, as we believe would have been proper, aggressive order into the panel, [00:10:09] Speaker 02: either under environmental conditions that the panel is likely to confront or under weather, as we proposed had that been the case, then the entire evidence of the trial would have been whether the absent panels do allow aggressive water into the panel under those conditions. [00:10:26] Speaker 02: But that's not the way the case ended up playing out because of the construction. [00:10:29] Speaker 00: But there are places in the spec where they're talking about waterproofing and they're talking about IP rating. [00:10:36] Speaker 02: Yes, Your Honor, they're talking about [00:10:38] Speaker 02: levels of protection. [00:10:39] Speaker 02: So, for example, the spec gives examples. [00:10:41] Speaker 02: If you want to immerse the panel underwater, three feet deep, then you've got to have a greater level of protection. [00:10:49] Speaker 02: And it gives an example of IP67. [00:10:52] Speaker 02: Always using the words, for example, always using the words in one embodiment. [00:10:57] Speaker 02: We believe the portion of the specification that speaks directly to solid particles, water, [00:11:04] Speaker 02: and using the words environment is the best example in specification for why waterproofing should not have been tied to the IP 65 or higher rating. [00:11:17] Speaker 00: Your time is getting close. [00:11:19] Speaker 00: Do you want to spend a little time on the display module? [00:11:22] Speaker 02: Sure. [00:11:22] Speaker 02: Yes, your honor. [00:11:24] Speaker 02: I think there it's really simply a matter of the specification and the disclosures and teachings of the specification. [00:11:32] Speaker 02: The specification [00:11:34] Speaker 02: does have, in respect, expressed examples of one panel, one board being attached to a frame and being illuminated. [00:11:44] Speaker 02: And the construction requires two boards. [00:11:48] Speaker 02: Boards are essentially boards, printed circuit boards that have LED lights on them. [00:11:53] Speaker 02: Two boards coupled together, operatively coupled together by this door-to-board configuration. [00:11:59] Speaker 02: And we believe that the expressed language of the specification [00:12:03] Speaker 02: It offers a different reading, and therefore it shouldn't be limited to the two panel configuration. [00:12:11] Speaker 02: And I think I can pull out the patent here for a second. [00:12:19] Speaker 02: On the Appendix 258, which is the 791 patent at column two, beginning at line 27, [00:12:34] Speaker 02: We have an example of, in one embodiment, the at least one LED board includes two LED boards disposed in a side-by-side arrangement. [00:12:43] Speaker 02: So that's one embodiment. [00:12:45] Speaker 02: We also have, in a first aspect, the present invention is a universal display module for a build-in-place billboard sign where the display module is mountable into any one of an array of structural bay members. [00:13:05] Speaker 02: I'm going to read the appropriate portion. [00:13:12] Speaker 02: At column 33, line 51, in this smallest configuration, which is achieved by using a skill sort to separate the smallest configuration from the balance of the frame, the resulting structural frame still has the ability to [00:13:31] Speaker 02: within its associated structural bay number 16, a single display module. [00:13:38] Speaker 02: And there are other examples. [00:13:39] Speaker 02: We've cited them all in our brief of sentences and lines where the specification refers to a single board or a single panel and not the side-by-side configuration. [00:13:54] Speaker 02: We thought it was also important to point out in our brief [00:13:56] Speaker 02: that the phrase important or unique really dealt not with the two panels being joined to the daughter board operatively, but to the structure, the way the structure is in the center. [00:14:10] Speaker 02: And that language is pretty clear from the specification. [00:14:13] Speaker 02: So we believe on that. [00:14:14] Speaker 02: It's really a question of limiting the claim [00:14:21] Speaker 02: examples and not the only example in this case and coming up with a claim construction that has limitations that should not have been imported from the specification. [00:14:35] Speaker 00: Thank you. [00:14:46] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:14:48] Speaker 01: Kevin Martin for the Apple Ease. [00:14:50] Speaker 01: With me today, I'm joined by my colleague Jordan Bach. [00:14:53] Speaker 01: Your Honor spent most of the questioning during my friend's opening argument focused on the waterproofing issue, and so I'll start there as well. [00:15:02] Speaker 01: Your Honors, there was ample evidence in the specification, as well as the trial record, for the district court's conclusion that a person of skill in the art would understand waterproofing in terms of IP ratings [00:15:14] Speaker 01: and would understand waterproofing in the context of these patents. [00:15:17] Speaker 00: Well, can you start on that question where your friend started and obviously he acknowledged what Judge Toronto said, which is the district court was free to do step in and include IP ratings. [00:15:30] Speaker 00: But it makes us a little suspicious, right? [00:15:34] Speaker 00: Or it raises some question in our mind where not your claim, your proposed claim construction didn't reference IP ratings either in any way, shape or form. [00:15:44] Speaker 01: That's right, Your Honor. [00:15:45] Speaker 01: We did not. [00:15:45] Speaker 00: And so what do we do with that? [00:15:47] Speaker 00: Or doesn't that point, at least, start to point in a different direction? [00:15:52] Speaker 01: I think the question for purposes of an appeal is whether the district court's construction, while not proposed by one of the parties, is nonetheless supported by the record. [00:16:01] Speaker 00: Yeah, but you thought your construction was supported by the record, and yours was the preferable and correct construction, right? [00:16:08] Speaker 01: We did, your honor, and that's also the construction we proposed in the IPR, for example. [00:16:12] Speaker 01: We weren't proposing different constructions in different places. [00:16:15] Speaker 01: While we did not propose the construction that the district court adopted, nonetheless, we think it is supportable by the record. [00:16:22] Speaker 01: And this also gets us to the prejudice point, which is at the end of the day, the construction that we proposed we think would have been the same or more difficult to reach than IP65 or higher, or about the same. [00:16:33] Speaker 01: And if you look at the evidence that came in at trial, it's actually difficult to see. [00:16:38] Speaker 01: how the construction they proposed. [00:16:41] Speaker 04: Is this the point? [00:16:42] Speaker 04: And I'm afraid I'm not sure I'm remembering exactly. [00:16:46] Speaker 04: I thought that the district court's sentence on the prejudice question said something about how the jury could have found in your favor under your construction so it wasn't prejudicial. [00:17:02] Speaker 04: But he didn't say it is clear that the jury would have had to have so found. [00:17:09] Speaker 01: I'm not sure of the precise wording on that, Your Honor. [00:17:11] Speaker 04: To my mind, those are actually critically different, because could have is not enough for no prejudice, whereas definitely would have, because it would have been unreasonable to find otherwise, probably is enough for prejudice. [00:17:25] Speaker 04: I thought he used the softer form. [00:17:28] Speaker 01: I agree. [00:17:28] Speaker 01: Those are different. [00:17:29] Speaker 01: The district court's focus on prejudice with respect to infringement was on this cabinet issue, which we can get to. [00:17:36] Speaker 01: Sticking, though, with the claim construction issue, [00:17:39] Speaker 01: You know, when you, when you look at the testimony that came in at trial, when you look at the specification. [00:17:43] Speaker 04: Now you're no longer defending the claim construction. [00:17:47] Speaker 01: No, I am defending the claim construction, your honor. [00:17:49] Speaker 01: So when you look at the specification, the specification repeatedly refers to, uh, weatherproof as being IP 67 or higher. [00:17:58] Speaker 01: When you look at the testimony that came in a trial from the inventor himself, he kept referring to weatherproof as IP 65 or higher. [00:18:05] Speaker 01: And so to the extent that the jury was instructed that [00:18:08] Speaker 01: IP65 is what these patents cover. [00:18:10] Speaker 01: There was no evidence at trial that these patents cover anything less than IP65. [00:18:16] Speaker 01: So for purposes of infringement, nothing in the specification, no evidence at trial that these cover anything less than IP65. [00:18:24] Speaker 01: So for purposes of infringement, if the jury found these are not IP65, [00:18:28] Speaker 01: then they would have had to have found no infringement, even under the weatherproof standard. [00:18:32] Speaker 01: Because again, there was no evidence. [00:18:34] Speaker 04: And you've now three times used the word weatherproof instead of waterproof. [00:18:39] Speaker 01: Weatherproof. [00:18:39] Speaker 04: Those are not the same, are they? [00:18:40] Speaker 01: No, we don't think they are. [00:18:41] Speaker 01: But that was their construction. [00:18:43] Speaker 01: Their construction was essentially weatherproof. [00:18:46] Speaker 01: So at trial, the inventor, Mr. Hall, repeatedly referred to protection against the weather as IP65 or higher. [00:18:55] Speaker 01: Just to give a couple of examples, he said, [00:18:58] Speaker 01: This is out of appendix 10195. [00:19:02] Speaker 01: My whole goal was to develop a modular LED panel that could be completely sealed, that could be IP65 rated so it could stay out in the weather. [00:19:10] Speaker 01: As another example, when it rained, there was still an ability for water to get into the panel, so it still wasn't IP65 rated. [00:19:18] Speaker 01: That's the Inventor's Testimony of Trial. [00:19:19] Speaker 01: If you look at the specification, it talks about weather in terms of IP67. [00:19:23] Speaker 04: So something... [00:19:26] Speaker 04: Quite confused now. [00:19:27] Speaker 04: So the claim word that we're talking about is waterproof. [00:19:33] Speaker 04: Which I think everybody agrees is different from weatherproof because there's more bad stuff in the weather than water. [00:19:43] Speaker 01: And there's also stuff that happens indoors. [00:19:45] Speaker 01: And these patents are not limited to outdoor use. [00:19:48] Speaker 04: If you look at the... Right, but I guess this is getting... I want to focus a little bit on what Mr. Fabricant was focusing on, which is this aspect of these two-digit IP numbers in which only the second has to do with water. [00:20:06] Speaker 01: And you asked a question with this case, would it matter if the district court had simply set a second digit of five or higher? [00:20:12] Speaker 01: I think our position is that it really wouldn't have mattered because we really were focused on water. [00:20:18] Speaker 01: at the, at the trial. [00:20:21] Speaker 04: I can't begin to know the entirety of the focus of the trial, but if, if it's right to describe the argument that you presented at trial as power IP is 54. [00:20:37] Speaker 04: and you didn't say it was 64, but with 54, then it's possible for the jury to be hearing, well, this differs from the IP minimum of 65, where actually it's too minimum because it's not like everything above 65 is exactly right. [00:20:54] Speaker 04: Now, you've flunked on both halves of that. [00:20:57] Speaker 04: It's not just below 65 because it's 64 or lower. [00:21:03] Speaker 04: It's actually, you know, [00:21:05] Speaker 04: 10 or 11 below 65, namely the first digit. [00:21:11] Speaker 04: So it's not clear to me, I guess. [00:21:13] Speaker 04: And that's really all I know about what the trial was about. [00:21:17] Speaker 04: You presented a IP figure for the accused product that differed in both digits. [00:21:28] Speaker 01: It did differ in both digits. [00:21:29] Speaker 01: I mean, I will note in the specification, as well as in the expert's testimony, [00:21:35] Speaker 01: they consistently talk about waterproofing with reference to both digits. [00:21:40] Speaker 01: And when they're talking about water, they never simply say the second digit. [00:21:43] Speaker 01: They always say 65, 54, 67. [00:21:45] Speaker 01: Well, not exactly. [00:21:48] Speaker 00: I mean, maybe frequently, but there are column four on the 782 panel. [00:21:55] Speaker 00: It starts in certain bodyments. [00:21:57] Speaker 00: The display is 67 rated, and therefore waterproof and corrosion resistant. [00:22:03] Speaker 00: So where you're right, I mean, they talk about either weatherproofing or waterproofing in most places in the spec when they use the IP rating. [00:22:10] Speaker 01: Not always. [00:22:11] Speaker 01: That's correct, Your Honor. [00:22:13] Speaker 01: But what I will say, though, is when they talk about the degree of protection from water, they use both digits. [00:22:19] Speaker 01: The experts tended not, and the witnesses tended not to simply talk about what the second digit was. [00:22:24] Speaker 01: They tended to use both. [00:22:25] Speaker 00: Was there any testimony differentiating, explaining to the jury what one digit is vis-a-vis the other digit, and the notion that the both digits cover something beyond waterproofing? [00:22:37] Speaker 01: I don't have it in mind, Your Honor. [00:22:39] Speaker 01: I would assume that there was from one of the experts, but I don't have it in mind right now. [00:22:44] Speaker 04: Do both digits in the industry standard IP run from zero to nine? [00:22:52] Speaker 01: I know the second digit goes to nine. [00:22:54] Speaker 01: We have the table at appendix 22126. [00:22:58] Speaker 01: I don't recall how high the 22126. [00:23:04] Speaker 01: I'm not sure how high the first digit goes. [00:23:08] Speaker 01: Actually, 22139 is the pin site for it within the ratings guide. [00:23:14] Speaker 00: As far as harmless error or whatever we want to call it, I mean, with respect to infringement, I guess the argument, and you're right, the district court relied on the cabinet stuff on that. [00:23:25] Speaker 00: With respect to the invalidity contention, though, you have to step to the inventorship issue, right? [00:23:33] Speaker 01: Well, what the district court found was that the evidence was that if they were correct that the construction of waterproof should mean keeping water out in adverse weather, [00:23:43] Speaker 01: then there was evidence that the prior art introduced at trial, Ultravision's own prior art ultra panel, was, when it was built to its design specifications, proof against adverse weather. [00:23:56] Speaker 01: And so the district court's principal argument there was that even if he had adopted their construction, then the jury would have had to find it. [00:24:03] Speaker 00: Yeah, but we don't know what the jury rested on, right? [00:24:05] Speaker 00: I mean, isn't the law that in these kinds of circumstances we need to do over it because we don't know what the jury did? [00:24:13] Speaker 01: It depends upon what the evidence is, Your Honor. [00:24:15] Speaker 01: And so this is an abusive discretion standard for the district court. [00:24:18] Speaker 01: And the district court found that the jury would have found that these were, I think it was, well, would or could. [00:24:24] Speaker 01: No, I know. [00:24:26] Speaker 01: I don't have the exact language in mind, Your Honor. [00:24:29] Speaker 01: But that there was evidence from which the jury either would or could have found that the prior ultra panel was proof against the weather. [00:24:37] Speaker 01: We also think, and we moved under Rule 50A for a directed verdict of invalidity on the basis of improper inventorship, we think the evidence was indisputable that Mr. Hall simply wholesale copied documents from the Chinese companies with whom he was working, that he amended his patent claims after being told design modifications by the Chinese companies with whom he was working. [00:25:05] Speaker 01: He actually introduced plastic [00:25:07] Speaker 01: after fighting against plastic in conversations with his manufacturers and partners over in China. [00:25:13] Speaker 01: And so we think the jury would have been required to find improper inventorship on these facts. [00:25:18] Speaker 01: The district court didn't reach that issue. [00:25:19] Speaker 04: Can you talk about the, you just talked about the third issue, having talked about mostly the first issue. [00:25:24] Speaker 04: But what about the second issue? [00:25:25] Speaker 04: Is the, what's it, display or something? [00:25:29] Speaker 01: Oh, the cabinet, Your Honor, is that? [00:25:31] Speaker 04: It's a play module on two panels and one board, or a daughter board, or whatever it is. [00:25:38] Speaker 01: Right. [00:25:38] Speaker 01: And so there, we think that their argument principally is based upon a misapprehension of this court's specification disclaimer precedent. [00:25:44] Speaker 01: There is no requirement for specification disclaimer that there be disparagement of the prior art. [00:25:50] Speaker 01: You don't have to meet the lexicography standard. [00:25:53] Speaker 01: It is sufficient to describe a particular aspect of the present invention as being important and unique and a distinguishing factor over the prior art. [00:26:02] Speaker 01: That is exactly what they did with respect to the daughter board and two display panel configuration. [00:26:09] Speaker 04: Can you just help me understand? [00:26:11] Speaker 04: Because I don't think I fully understand. [00:26:14] Speaker 04: I thought the other side makes an argument that there are aspects of the specification that I think maybe they describe as a single board embodiment. [00:26:22] Speaker 01: They point to one sentence for the first time after the claim construction had already been issued. [00:26:28] Speaker 01: So for the first time in their appeal to the district court judge from the magistrate's claim construction, they point to one sentence which says that in one embodiment of one aspect in a patent which has about two dozen aspects, each of which has numerous embodiments, that that refers to at least one board. [00:26:51] Speaker 01: Now, nowhere in the specification does this explain how that at least one board relates to a daughter board plus two panels. [00:27:00] Speaker 04: Do you remember the column and line number for that? [00:27:03] Speaker 01: It's column two, right? [00:27:06] Speaker 01: Yes. [00:27:07] Speaker 01: It's the very first aspect of the invention, says at least one board. [00:27:14] Speaker 01: Again, it does not, after that point, go on to address that ever again. [00:27:19] Speaker 01: in the very next embodiment is at least two boards. [00:27:24] Speaker 01: Now, there was a discussion during Mr. Fabrikant's argument about at least one module. [00:27:32] Speaker 01: The module of the present invention is described in the specification as the daughter board plus two panels, so at least one module does not support their argument at all. [00:27:42] Speaker 03: Now, when the patent specification... Let's focus, though, on column two, though. [00:27:49] Speaker 03: You're essentially asking us to look away from column two, from the first column of a rather lengthy summary of the invention section in order to affirm the district court construction here. [00:28:04] Speaker 03: And I'm just wondering, how can we do that? [00:28:08] Speaker 01: So we're not asking you to look away from it, Your Honor. [00:28:09] Speaker 01: I think first, they've waved to this argument by not raising it at an appropriate time during client construction. [00:28:15] Speaker 01: Second, they've not explained how that at least one board relates to the display module of the present invention as described throughout the rest of the specification. [00:28:23] Speaker 03: Well, I mean, it says it right here in column two. [00:28:27] Speaker 03: In a first aspect, the present invention is a universal display module. [00:28:32] Speaker 03: and then goes further down, the display module comprising a whole bunch of things, and then at line 23, and at least one LED board coupled to the front side of the frame. [00:28:47] Speaker 03: I mean, why isn't that clear enough? [00:28:52] Speaker 03: What's so confusing about that? [00:28:53] Speaker 01: Because there's no explanation of how that at least one board relates to a daughter board plus two panels. [00:28:59] Speaker 03: Well, that's [00:29:01] Speaker 03: giving in to your conclusion that it must have two LED boards, as well as a daughter board. [00:29:09] Speaker 01: Well, two LED, sorry, Your Honor. [00:29:11] Speaker 03: Panel, panels. [00:29:13] Speaker 03: But I'm trying to understand what is the spec trying to communicate right here when it says at least one LED board. [00:29:24] Speaker 01: Right, and we don't think that that is communicating that you would have at least one panel without a daughter board. [00:29:31] Speaker 01: It's not clear from that how it relates to, and I would note as well. [00:29:36] Speaker 03: What is the ambiguity about at least one LED board? [00:29:40] Speaker 03: What else could it be referring to other than what the plaintiff is saying it refers to? [00:29:47] Speaker 01: It could be a reference to, for example, the daughter board with the two modules. [00:29:53] Speaker 01: It's just simply not clear. [00:29:55] Speaker 03: An important point here, too, is that under... Wait, before you start fast talking away, are you saying that when it says one LED board here in column two, that could be referring to the entire display module 14, as that term is used in column 34? [00:30:15] Speaker 01: It could be referring to the display board plus the panels. [00:30:19] Speaker 03: Because, you know, obviously what we have here in column two is the display module comprising a whole bunch of things plus one LED board. [00:30:32] Speaker 03: So, I mean, it seems like the most consistent reading would be that at least one LED board is referring to [00:30:41] Speaker 03: one of these two display panel assemblies that's being described at column 34. [00:30:48] Speaker 03: So let's assume that's what's the right reading of this at least one LED board at column two. [00:30:55] Speaker 03: So then what do we do with that situation? [00:30:58] Speaker 01: So we have three points, Your Honor. [00:30:59] Speaker 01: The first is the waiver [00:31:01] Speaker 03: Let's put aside all your procedural things. [00:31:04] Speaker 03: Let's try to figure out what's the best understanding of this specification in view of what is disclosed in column 34 and what is being told to us in column 2. [00:31:13] Speaker 01: And the second is that under this court's precedents, like pacing technologies, not every embodiment disclosed in the specification needs to be read into every claim. [00:31:21] Speaker 01: And so here, we think that where the rest of the specification describes the display module of the present invention as comprising [00:31:30] Speaker 01: a daughterboard plus two display panels, describes that as an important and unique aspect of the invention, explains why it's an important and unique aspect of the invention, what benefits it provides over the prior art, that you should not read, even if you view that as a separate, that we've been focusing on as a separate embodiment of the invention, that you don't have to read that into every claim, and in fact you should not. [00:31:53] Speaker 01: You should focus on the specification as a whole, and what the specification describes, again, as the important and unique aspects of this module, [00:32:00] Speaker 01: and require those to be in the claims. [00:32:04] Speaker 01: Not this very cursory reference found in that one sentence. [00:32:11] Speaker 04: Is it part of your argument that the claim construction that says a pair of panels linked to a daughter board is not contradicted by the idea that there might be [00:32:29] Speaker 04: one LED board? [00:32:32] Speaker 04: That there's a difference between the panels and the board? [00:32:35] Speaker 01: In the context of the specifications description of what the display module of the present invention is, where it talks about the board and the panels, we think there's just not a contradiction there. [00:32:48] Speaker 01: Again, that very cursory sentence at the beginning of the specification referring to one board, it's not clear that that's carving out just a [00:32:56] Speaker 01: a daughter board or a panel or precisely what that means. [00:33:01] Speaker 01: The specification as a whole is focused very much on its more fulsome description of the display module, which is what the district court relied upon. [00:33:10] Speaker 00: Was that your third point? [00:33:11] Speaker 00: You were going to give us three points. [00:33:15] Speaker 01: I think we've covered it. [00:33:16] Speaker 01: There was waiver, pacing technologies, and honestly, I think I forget my third point at this point. [00:33:24] Speaker 00: OK. [00:33:25] Speaker 00: Thank you. [00:33:26] Speaker 01: Thank you, Your Honor. [00:33:27] Speaker 00: All right. [00:33:27] Speaker 00: So we've gone a little over. [00:33:29] Speaker 00: We're going to restore your rebuttal time anyway. [00:33:31] Speaker 00: Why don't we give you four minutes for rebuttal to keep the time? [00:33:34] Speaker 02: Thank you, Your Honor. [00:33:35] Speaker 02: Thank you. [00:33:38] Speaker 02: I believe that this falls within the Network One case with respect to the fact that there was prejudice. [00:33:43] Speaker 02: There's no question that [00:33:46] Speaker 02: absent relied on the claim construction and presenting its defense in this case, and that the evidence was all directed towards the use of the claim construction. [00:33:54] Speaker 02: There's also no dispute here that Judge Gilstrap never granted a Rule 58 judgment, despite the fact that there was argument. [00:34:03] Speaker 02: He didn't grant it on non-infringement, and he didn't grant it on invalidity, and he didn't grant it on inventorship. [00:34:08] Speaker 02: or anything else which was argued in before the jury was deliberated or when the jury first went into deliberation. [00:34:17] Speaker 02: So I think this is a case where we fall within prejudice. [00:34:21] Speaker 02: And I just did want to comment on the cabinet issue for the moment so the court has an understanding what that was about. [00:34:29] Speaker 02: There was substantial evidence in the record at trial [00:34:32] Speaker 02: other than the expert issue on the cabinet, but I'll speak to the expert issue. [00:34:38] Speaker 00: I defer to my colleagues too, but this was not an issue that was brought up in any way, shape, or form of substance in the initial arguments. [00:34:50] Speaker 02: That's fine. [00:34:51] Speaker 02: Well, I'm just responding to the cabinet issue. [00:34:54] Speaker 02: and i just wanted to say we believe the substantial evidence in the record to support the fact that this was a modular display panel and in fact judge gilstrup did allow the expert to say it was a modular display panel that they were two panels in the courtroom photographs were shown to the jury the evidence was received the objection came after that on a different question and the judge never ends never struck the testimony or instructed the jury to ignore any testimony [00:35:22] Speaker 02: And he says something in his decision on denial of the motion for a new trial, which is where I know he says he excluded the expert's opinion. [00:35:35] Speaker 02: But there was opinion that was permitted, that wasn't the subject of the objection, and that wasn't stricken during the trial. [00:35:43] Speaker 02: I did want to comment with respect to the Cox patent, the door to board issue. [00:35:53] Speaker 02: there is in column two firstly in one embodiment and at least one LED board includes two LED boards followed by at line 30 of column two in another embodiment. [00:36:08] Speaker 02: The display module further comprises a driver board mounted to the backside of the display frame and electrically coupled to the module connector and to the at least one LED board. [00:36:20] Speaker 02: So I think there are several places, even in column two and elsewhere, where one single LED board is referred to. [00:36:27] Speaker 02: My comment here is that if it's ambiguous, if it's not completely clear, we think it is clear based on the specification. [00:36:35] Speaker 03: Is it right you didn't bring up column two to the district court? [00:36:38] Speaker 03: The district court didn't have the benefit of this briefing about column two. [00:36:42] Speaker 03: Is that right? [00:36:44] Speaker 02: That may be correct. [00:36:45] Speaker 02: I'm not in a position to say that that's incorrect. [00:36:47] Speaker 02: I would say, however, that. [00:36:49] Speaker 02: It's kind of struck me as ironic that we had a colleague arguing waiver when this IP69 issue was not brought up to the court during Markman proceeding. [00:36:59] Speaker 02: There was no reference to IP69. [00:37:02] Speaker 02: There was no IP69 chart. [00:37:04] Speaker 02: There was no reference to anything other than 67, 65, 67, and 8. [00:37:09] Speaker 02: Never mentioned. [00:37:10] Speaker 02: Nothing in the record. [00:37:12] Speaker 02: Never argued. [00:37:13] Speaker 02: And the first time that ever came up was in opposition to the motion for a new trial. [00:37:19] Speaker 02: So I just found it interesting that the waiver issue was being raised when their key argument on claim differentiation is based on an IP69 not being in claim six, when that was never brought up during market. [00:37:32] Speaker 00: Just on the first point, my recollection, I may have this wrong, was that Red obviously raised the waiver issue. [00:37:38] Speaker 00: And I don't think he responded to it or disagreed with them in great terms of their characterization of it. [00:37:49] Speaker 02: Thank you, Your Honor. [00:37:50] Speaker 00: Thank you. [00:37:51] Speaker 00: Thank both sides, and the case is submitted.