[00:00:00] Speaker 00:
Our next case is Fresh Hub Inc.

[00:00:02] Speaker 00:
versus Amazon.com Inc.

[00:00:06] Speaker 00:
Councilor Andres, you have reserved three minutes of rebuttal.

[00:00:15] Speaker 01:
of becoming old friends.

[00:00:16] Speaker 01:
Good morning, Your Honors, and may it please the Court and the Esquire Court in three minutes.

[00:00:23] Speaker 01:
Your Honor, in order to look at whether or not the District Court should deny fresh-ups to J-Mall, this Court reviews that under the NOVO standard, puts itself in the shoes of the District Court, and tries to determine whether a reasonable jury would come to that conclusion based on the totality of the evidence presented.

[00:00:44] Speaker 01:
Fresh Hub submits that the evidence in this case was overwhelming.

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We report for expert testimony, over 60 exhibits, technical documents, public documents.

[00:00:59] Speaker 01:
We put three other engineers in our case in chief for depositions.

[00:01:02] Speaker 04:
I don't see how quantity answers the question.

[00:01:12] Speaker 04:
on the item point, whether the accused Prada could under the plan construction.

[00:01:25] Speaker 04:
the specific point of dispute, whether the jury had evidence based on the two sides' testimony on that particular element from which we could decide in Amazon's favor.

[00:01:40] Speaker 01:
The only evidence that Amazon put forward was the record of Dr. Johnson.

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And the court did not give a construction of the term item.

[00:01:49] Speaker 04:
Did you ask for one?

[00:01:50] Speaker 01:
No, the parties put ordinate a meaning.

[00:01:52] Speaker 04:
Right, so I guess we have a rule, almost an avoidable rule, that when the parties don't ask for further interpretation of a term, that

[00:02:07] Speaker 04:
whether each side's application of that term is reasonable.

[00:02:17] Speaker 04:
And why?

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And tell me if I'm wrong in my understanding.

[00:02:21] Speaker 04:
I took it that on this point Amazon's experts said

[00:02:26] Speaker 04:
I interpret this and it's a reasonable interpretation to mean basically a particular product that is available, not a generic name for a type of product like carrot.

[00:02:42] Speaker 01:
The actual testimony of Hamilton's expert was a physical product that you put in the refrigerator, put on a shelf.

[00:02:49] Speaker 04:
Right, I got stuck on that for a while, imagining not just the name for the product, carrot, as being on the list, but the carrot being on the list so that one would have to say in the vegetable aisle, I wouldn't call that an aisle, I'd call that a list.

[00:03:07] Speaker 01:
But that was the testimony that he gave.

[00:03:09] Speaker 04:
And nobody could possibly understand that.

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You don't put literally carrots and bananas and broccoli on a list.

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You put them in the cart.

[00:03:19] Speaker 01:
We agree.

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But that was their position.

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That's the reason we said there's no support for their expert position.

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He also said that the word order

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When you say Amazon, put milk on my list.

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That was not an order.

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That's just an utterance of words.

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So the two terms that their expert relied on order and list were so far removed from the ordinary meaning.

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that the district court erred when it didn't discount that testimony altogether, because that was the only basis for the Amazon's position in non-affringement.

[00:03:58] Speaker 01:
In fact, if you look at the actual testimony in cross-examination, we're like, the word milk is an item, according to Amazon.

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It's on their website.

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It's on their documents.

[00:04:13] Speaker 01:
Dr. Strong

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Milk will be an item.

[00:04:19] Speaker 01:
So this is about, you know, it's not a typical battle of the experts, where they had two reasonable interpretations.

[00:04:27] Speaker 01:
Dr. Johnson had to go so far afield, that it would be impossible, as you said, Your Honor, that his interpretation could not be possibly read into the claim itself.

[00:04:37] Speaker 03:
But the claim says identifying an item corresponding to the text, right?

[00:04:45] Speaker 03:
It couldn't be just a word corresponding to the word.

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And I mean, corresponding to the text must be doing some work.

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We must be referring to some kind of object that corresponds to the word for the object.

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And then that's further bolstered by the way the word item is used in the abstract and then the summary and invention and then there's other parts of the spec that talk about the SKU identifier for a given object.

[00:05:20] Speaker 03:
So, you know, it looks like it's

[00:05:25] Speaker 03:
there's a basis for understanding the word item in the context of this patent that has one of the ordinary meanings of item.

[00:05:36] Speaker 03:
I guess item can be defined in different ways, but item can be the actual thing that corresponds to the word for the thing.

[00:05:48] Speaker 01:
Well, I mean, if you go to the, you know, there's two parts of the system here.

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first system and then the peer system.

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And when it talks about receive via the digitizer, a verbal order, comprising at least one item.

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So the order has an item there.

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So it gives a very limited interpretation.

[00:06:07] Speaker 03:
There's an orderable item that we're talking about.

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Like add milk to the shopping list.

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Milk would be the item.

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Now we showed, and everyone admitted, that does go on the shopping list.

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That item does go on.

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Dr. Strom said that is the item.

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Their documents said that is the item.

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You have to get such a tortured construction in order to get away from that, as Dr. Johnson did, in order to find non-infringement.

[00:06:34] Speaker 01:
And even the district court, in its denial of the JMO, recognized that it is the actual physical product on the list, as Judge Tarantino just mentioned, is not

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It would not be physically possible.

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It makes the claim nonsense.

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So there is absolutely no support.

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And that's the only evidence they have.

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They have one witness.

[00:07:01] Speaker 03:
And I guess maybe adding an item to the list is the same thing as just reserving the object for purchasing.

[00:07:11] Speaker 01:
You know well and so in that way you're you're once again kind of referring to some kind of product that you're adding to your electronic shopping cart Yeah, and milk or carrots or or It doesn't matter what you put on if you ever used Amazon product you have the boxing in your home you say Amazon Alexa add Carnation instant milk to the shopping list and

[00:07:40] Speaker 01:
will add carnation instant milk.

[00:07:41] Speaker 01:
It will identify that.

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If you say milk, it will just add milk.

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So it is something that there is no dispute that those items are added to the list.

[00:07:51] Speaker 01:
And I don't know how, the only way you can get outside of an infringement on the item in particular is make it, as Dr. Johnson did say, it's a physical item.

[00:07:59] Speaker 01:
It's something you put in the refrigerator or on the shelf.

[00:08:02] Speaker 01:
That's the only way you can get around that term.

[00:08:05] Speaker 01:
This was such overwhelming evidence to show that items are added to the list, even to the point where we had a party admission, the man who designed the product.

[00:08:12] Speaker 03:
I guess if we were to go your way, it seems like the claim would have just said,

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after converting to text, just add the text to the list.

[00:08:26] Speaker 03:
But the claim actually seems to be calling for something in addition to just merely adding the text to the list.

[00:08:35] Speaker 03:
It's identifying an item that corresponds to the text and then adding the item to the list.

[00:08:43] Speaker 03:
It feels like there's something, some more work going on inside this claim than really adding text, any, you know, verbalized text to a list.

[00:08:53] Speaker 01:
Well, if you read the claim in the totality, when you see the first thing the item is used, it's the verbal order comprising at least an item.

[00:09:02] Speaker 01:
So you know that the verbal order comprises the item.

[00:09:06] Speaker 01:
that's clear.

[00:09:07] Speaker 01:
So you're saying something verbally and that comprises the item.

[00:09:12] Speaker 01:
And then you digitize that and then you add the identified item to the list associated with the user.

[00:09:17] Speaker 01:
And then you enable the list, including the identified item, to be displayed to the user.

[00:09:22] Speaker 01:
So you have to display the actual item as well on the list that's on the screen.

[00:09:29] Speaker 01:
So any plain reading, ordinary meaning of the terms, I think you can't get around the claim language and the evidence in this case.

[00:09:41] Speaker 01:
A reasonable jury would not have found non-infringement of that element.

[00:09:45] Speaker 04:
And what about, there's another element here, right, memory?

[00:09:49] Speaker 01:
Yeah, it was not argued to the jury, but in closing statements, it was never raised by, Dr. Johnson didn't mention it.

[00:09:57] Speaker 01:
Dr. Johnson said the memory is there.

[00:09:58] Speaker 01:
It came up in post.

[00:10:00] Speaker 04:
Isn't there a dispute about what there is, whether it's the little device sitting in your home or whether it's that plus back end systems with which it communicates?

[00:10:14] Speaker 01:
If you look at the claim, it has two systems.

[00:10:16] Speaker 04:
I'm sorry, but I thought that this was a dispute not about the claim so much as what your infringement allegation was, or infringement proof was.

[00:10:30] Speaker 01:
The accused products.

[00:10:31] Speaker 01:
We spent a lot of time talking about that back end system.

[00:10:33] Speaker 01:
In fact, more time on the back end system than the front end system.

[00:10:36] Speaker 01:
That's objective.

[00:10:37] Speaker 01:
There's no possible way you could say we did not accuse that back-end system, because that was the evidence we put in.

[00:10:43] Speaker 01:
That was part of the trial briefing.

[00:10:46] Speaker 01:
That came out of the blue, that we did not accuse the back-end system comprising the servers.

[00:10:51] Speaker 04:
Is there a front-end jury that said otherwise here?

[00:10:59] Speaker 01:
No, the claim was taken as a whole.

[00:11:03] Speaker 01:
But the evidence that went in was first for the actual Alexa device in your home, and then the back-end system sitting on the cloud or Alexa Amazon's website.

[00:11:13] Speaker 01:
Those were very distinct two systems.

[00:11:17] Speaker 01:
And when we spent probably more time talking about the back-end system,

[00:11:21] Speaker 01:
And so we accused the back end system and we have the evidence, you know, that's objective.

[00:11:26] Speaker 01:
And how they came out with how the district court found that was, that was not accused product.

[00:11:31] Speaker 01:
is a mystery.

[00:11:33] Speaker 01:
I have no idea how that came up.

[00:11:34] Speaker 01:
It was not argued to the jury.

[00:11:36] Speaker 01:
And just real quick, before I get to my rebuttal time, I do want to talk about the two basis for the new trial.

[00:11:44] Speaker 01:
One is the great way of the evidence.

[00:11:46] Speaker 04:
I'm not actually that interested in talking about that.

[00:11:49] Speaker 04:
But I am interested in talking about the cross appeal, if this is the right time, or are we going to wait?

[00:11:54] Speaker 01:
Can I do that in rebuttal time?

[00:11:57] Speaker 01:
No, you better bring it up now so that they have the opportunity to respond to that.

[00:12:04] Speaker 01:
They're the moving party.

[00:12:05] Speaker 01:
You can address it.

[00:12:09] Speaker 04:
Inequitable conduct.

[00:12:10] Speaker 04:
And here's my question.

[00:12:12] Speaker 04:
In trying to figure out whether there really is only one set of interpretations of what Mr. Weiss and others did here,

[00:12:26] Speaker 04:
I would very much like to hear what the non-nefarious scenario is that you think is plausible.

[00:12:36] Speaker 01:
So what happened was there was a change in ownership of the parent company, ICANN, and there was a list of patents that were going to be prostituted, but those were not.

[00:12:50] Speaker 01:
And the principal did not get those emails.

[00:12:54] Speaker 01:
Mr. Weiss said, you know, he believed it was transmuted.

[00:13:02] Speaker 04:
evidence that the principal, is this Mr. Souter or Sower or something?

[00:13:06] Speaker 01:
Sower, I believe.

[00:13:07] Speaker 01:
Sower, that he did not get the emails?

[00:13:10] Speaker 01:
There's no evidence that he got that.

[00:13:12] Speaker 04:
Okay, well, I guess, and it's fair enough, I asked you a question about, give me a scenario in which it's possible that these statements were either, that these statements, there's only one statement to this sheet, was true.

[00:13:28] Speaker 04:
or at least not intentionally false.

[00:13:32] Speaker 04:
So, okay, so you're describing a scenario.

[00:13:33] Speaker 01:
So it's a scenario where there was a list of patents that were sent and there was no evidence that Mr. Sauer got those patents.

[00:13:41] Speaker 01:
He never expressly abandoned those patents.

[00:13:44] Speaker 03:
When he found out... Are you talking about the assignment right now?

[00:13:48] Speaker 01:
This was about a list of patents that were going to be dropped on prosecution.

[00:13:54] Speaker 01:
There are already some issued patents on those.

[00:13:57] Speaker 01:
And there are some that are going to be pursued.

[00:13:58] Speaker 03:
And you're talking about back during the time where the application, the parent application, received a final office action rejection.

[00:14:07] Speaker 03:
And then it was going to go abandoned in six months if it hadn't been responded to.

[00:14:11] Speaker 03:
Is that the time frame you're talking about?

[00:14:13] Speaker 01:
That's correct.

[00:14:13] Speaker 03:
OK.

[00:14:14] Speaker 01:
And so there was just no evidence presented

[00:14:17] Speaker 01:
Definitely not clear and convincing evidence.

[00:14:19] Speaker 01:
But Mr. Sauer saw that information.

[00:14:22] Speaker 01:
He expressly said it was abandoned.

[00:14:24] Speaker 01:
That was his intention.

[00:14:26] Speaker 01:
And he found out it was abandoned.

[00:14:27] Speaker 01:
He contacted the attorney because there was a change of ownership and there was a fight.

[00:14:31] Speaker 01:
There's lawsuits about ownership of the company.

[00:14:33] Speaker 01:
So it kind of went to a black hole.

[00:14:35] Speaker 01:
And once they realized they revived it, they revived it.

[00:14:38] Speaker 01:
There was nothing to ferry so it was going on.

[00:14:40] Speaker 01:
And that's what the district.

[00:14:43] Speaker 04:
So I think I'm not.

[00:14:46] Speaker 04:
I think you're sort of halfway to what scenario in which.

[00:14:54] Speaker 04:
I think that it pronounces it.

[00:14:57] Speaker 04:
Sauer and there was another person that Mr. Weiss said he thought that also, let's forget his name, that maybe they didn't get the emails in 2012 or 2011, whichever that was.

[00:15:09] Speaker 04:
And part of the scenario is that Mr. Weiss would not have followed up

[00:15:21] Speaker 04:
on something that I think his deposition, as in, in his deposition he said was a pretty big deal and he wouldn't do this without authorization.

[00:15:33] Speaker 04:
That's also part of the scenario.

[00:15:35] Speaker 01:
Well, it wasn't expressed.

[00:15:36] Speaker 01:
It was, the whole scenario was Mr. Weiss had no recollection and no records, really.

[00:15:43] Speaker 01:
It was expressed

[00:15:44] Speaker 01:
BAM or not, and there's nothing in the record to show that it was.

[00:15:48] Speaker 01:
So it was never, it was both of the pending lawsuits and the transfer of ownership of the company and who actually got the information, who obtained the information from Mr. Weiss.

[00:16:00] Speaker 01:
There was just no evidence that it was a material misrepresentation.

[00:16:05] Speaker 01:
It was clearly no intent.

[00:16:07] Speaker 01:
It wasn't even close to getting intent.

[00:16:09] Speaker 01:
Mr. Weiss had no intent.

[00:16:11] Speaker 01:
Mr. Sauer had no intent.

[00:16:13] Speaker 01:
There was nothing.

[00:16:13] Speaker 04:
I think I remember that Mr. Weiss said the intent that he thought mattered was Mr. Sauer's intent, not his.

[00:16:23] Speaker 04:
That's correct.

[00:16:25] Speaker 04:
And on whether the abandonment was intentional, not whether the, by assumption, false assertion to the PTO was intentional.

[00:16:35] Speaker 04:
Two different intents floating around here.

[00:16:38] Speaker 04:
Correct.

[00:16:39] Speaker 04:
And so you have to have a plausible scenario in which, and you're really focusing on what happened at the company, not what happened at Kenobi.

[00:16:52] Speaker 04:
Your scenario is that the emails kind of got lost or something, and that that's plausible even though Mr. Weiss would have been pretty careful about

[00:17:09] Speaker 04:
allowing this to go abandoned without an authorization.

[00:17:15] Speaker 04:
I know there's no evidence of the authorization.

[00:17:18] Speaker 04:
I'm talking about a scenario that is plausible enough that the district court could say that the evidence that there is leaves a plausible alternative.

[00:17:32] Speaker 04:
And as long as there's a plausible alternative,

[00:17:34] Speaker 04:
I can and indeed should reject the inequitable conduct.

[00:17:39] Speaker 01:
Correct.

[00:17:40] Speaker 01:
And after a thorough bench on this, what the district court found that was the most reasonable inference was there was no intent to see by the company.

[00:17:49] Speaker 04:
I'm not quite sure he said that.

[00:17:51] Speaker 04:
I think he just said that there's no proof that the most reasonable inference is the bad one.

[00:18:00] Speaker 04:
Not that.

[00:18:00] Speaker 04:
I don't think he found that the most reasonable inference is the alternative.

[00:18:05] Speaker 01:
There was no intent to say that.

[00:18:07] Speaker 01:
I think we're saying the same thing, but maybe just different.

[00:18:10] Speaker 03:
OK.

[00:18:11] Speaker 03:
But you just keep saying there was no intent.

[00:18:14] Speaker 03:
There's no intent.

[00:18:16] Speaker 03:
And just to follow up on Judge Toronto's question,

[00:18:20] Speaker 03:
uh... it's hard for us to just simply accept the conclusion without understanding what with the scenario and the possible scenario that occurred at the time between uh... the canopy attorney and then and as i understand it was that general

[00:18:44] Speaker 03:
He wouldn't let something go abandoned unless the client told him it's okay to let this one go abandoned.

[00:18:52] Speaker 03:
So the question is, did that just not happen here?

[00:18:56] Speaker 03:
That he didn't ever get the official sign off from the client to let it go abandoned?

[00:19:03] Speaker 01:
That's what the evidence shows.

[00:19:05] Speaker 03:
Well, I mean,

[00:19:09] Speaker 03:
The evidence doesn't show anything, I guess, is the problem here.

[00:19:13] Speaker 03:
Maybe that's the problem for the other side.

[00:19:15] Speaker 03:
We don't know.

[00:19:16] Speaker 03:
Well, I'm just trying to figure out maybe the same thing that George Toronto is trying to figure out.

[00:19:22] Speaker 03:
Is that plausible that a patent attorney, an experienced patent attorney, would just let it go abandoned if he checks in with the client and the client just is radio silent, and then six months elapses and now the thing is officially abandoned?

[00:19:39] Speaker 01:
I'm not a soothsayer, but I can only start with the evidence showed.

[00:19:45] Speaker 01:
And so what the evidence showed in this case was that because of the change of ownership in the company, Mr. Sauer being in and being out, and the lawsuits being filed, email went to a black hole, and things didn't happen for several years until the company got sorted out.

[00:20:04] Speaker 01:
But that's what the evidence is in this case.

[00:20:07] Speaker 01:
I'm not trying to guess what really happened, because I can only live with the evidence that was presented at trial.

[00:20:14] Speaker 01:
And the evidence presented at trial is not clear and convincing.

[00:20:18] Speaker 01:
There is absolutely no evidence at all.

[00:20:19] Speaker 01:
I think that maybe that's what the panels have a problem with.

[00:20:22] Speaker 01:
There is no evidence at all.

[00:20:24] Speaker 01:
And that's more of Amazon's issue than mine.

[00:20:36] Speaker 02:
Good morning.

[00:20:37] Speaker 02:
This is the court, Dave Haddon for Amazon.

[00:20:38] Speaker 02:
Let me start with the Jamal issue.

[00:20:42] Speaker 02:
As the court knows, only in extreme cases can a Jamal be granted for the party that bears the burden of proof.

[00:20:52] Speaker 02:
And this is not that extreme case.

[00:20:55] Speaker 02:
The claim in this case required translating at least a portion of the digitized order to tax

[00:21:05] Speaker 02:
and then identifying an item corresponding to the text and then adding that identified item to the list.

[00:21:14] Speaker 02:
It's undisputed that in the accused shopping list feature, there is no identification of an item corresponding to the text.

[00:21:25] Speaker 02:
The system just adds the word the user said to the list.

[00:21:29] Speaker 03:
Well, this comes down to which ordinary meaning of item is really the right one to go with.

[00:21:36] Speaker 02:
I think it does, in a way, in that item has to be a thing that is distinct from the text.

[00:21:43] Speaker 02:
But I think that is clear from the language of the claim itself.

[00:21:46] Speaker 02:
You have to have text, and then you have to identify an item corresponding to that text.

[00:21:53] Speaker 04:
If the order came in with the text saying, I want, I forget what Mr. Andre's example was, powdered milk with a, and the person puts in the store SKU number.

[00:22:11] Speaker 04:
That would presumably come in.

[00:22:14] Speaker 02:
Well, that would be text, right?

[00:22:16] Speaker 02:
The examples in this case were their expert said, add sad to my shopping list.

[00:22:22] Speaker 02:
And the word sad shows up in your shopping list.

[00:22:25] Speaker 02:
Or you could say, add unicorns, which is what our expert did.

[00:22:29] Speaker 02:
And you get the word unicorn on the shopping list.

[00:22:31] Speaker 04:
I'm trying to understand so much.

[00:22:34] Speaker 04:
Suppose I typed in or something, or I guess it's not typed in.

[00:22:39] Speaker 04:
gave a verbal order for SKU 12345.

[00:22:43] Speaker 02:
Then SKU 145 would go in, but that would just be text.

[00:22:48] Speaker 04:
What matters is that would be that would that would not come under this claim.

[00:22:54] Speaker 02:
It would not, because we have not identified an item from the text.

[00:22:58] Speaker 02:
That is just random text.

[00:23:00] Speaker 02:
It could be anything you said.

[00:23:01] Speaker 04:
It's not random.

[00:23:02] Speaker 04:
It's SKU number one, two, three, four, five.

[00:23:04] Speaker 02:
It is, but it's not interpreted as an identification of an item.

[00:23:08] Speaker 02:
That SKU number is meaningless in your shopping list.

[00:23:11] Speaker 02:
It's just like the word sad or any other word.

[00:23:14] Speaker 02:
Now there are ordering systems that were accused with respect to the other patterns where Amazon does try to find a skew number that corresponds to the words, but that's not what is done in the shopping list.

[00:23:25] Speaker 02:
So the step of taking text and then using it to identify a product, which by a skew number, for example, like you said, which is what the patent describes is not done in the patent.

[00:23:37] Speaker 02:
You take those words, you try to match them to a description of items in a database.

[00:23:43] Speaker 02:
If you find a match, then you find the SKU number corresponding to that item in the database.

[00:23:48] Speaker 02:
And that SKU number is the identifier that would get added.

[00:23:52] Speaker 02:
None of that happens in the Amazon shopping list, because it's not a mechanism for ordering a product at all.

[00:23:59] Speaker 04:
So your evidence about what happens in the accused Amazon system is what?

[00:24:05] Speaker 02:
It was, there was testimony from Mr. Love, who was in charge of that feature, who explained how it worked and how it didn't identify.

[00:24:15] Speaker 04:
How did it work?

[00:24:15] Speaker 04:
I want you to describe it.

[00:24:17] Speaker 02:
So all it does is it takes the word that the user says, it stores that word in a database, and it shows that word on the list.

[00:24:25] Speaker 02:
There's a completely separate system that is used by other Amazon speech lists that find items when a user says instead of add to my list, add to my cart.

[00:24:38] Speaker 02:
And those features were accused of infringing the other patent in this case that were also found not infringed and from which there is no appeal.

[00:24:47] Speaker 02:
So this shopping list feature is completely separate from the ordering features that you can do with Alexa.

[00:24:54] Speaker 02:
It's just a way to capture a user's thoughts.

[00:24:57] Speaker 02:
The whole purpose is not to order things on Amazon, but just to have a list that you could use anywhere else.

[00:25:03] Speaker 02:
So there is no step to match the words in any way to a product you could buy.

[00:25:09] Speaker 02:
And there was testimony from Mr. Love, who's in charge of that feature, about that's how it works.

[00:25:14] Speaker 02:
So, you know, contrary testimony.

[00:25:16] Speaker 04:
Right.

[00:25:17] Speaker 04:
I assume that when you talk about putting an item on the list, you mean putting a

[00:25:25] Speaker 04:
of representation in ASCII that corresponds to the physical thing.

[00:25:30] Speaker 02:
Yeah, we don't mean to put an item on the list.

[00:25:33] Speaker 02:
So if you say milk, and if you're going to identify an item, if you say Amazon, add milk to my cart, and you could have bought clover, 2% milk, and a half gallon in the past, Amazon will add that to your cart.

[00:25:48] Speaker 02:
But if you say, add milk to my shopping list,

[00:25:51] Speaker 02:
You just get the word milk, or unicorns, or sad, or anything else.

[00:25:55] Speaker 02:
There is no mechanism to try to identify an actual item that you could purchase.

[00:26:01] Speaker 02:
That is the distinction.

[00:26:02] Speaker 02:
And that goes also with this other point, that there's no digitized order.

[00:26:08] Speaker 02:
An order in this patent is not the example counsel used, telling your son to take out the trash.

[00:26:15] Speaker 02:
An order is a purchaser.

[00:26:17] Speaker 02:
If you look at figure eight, which is the only figure in this pattern that describes this voice shopping idea at all, the last step is place order.

[00:26:27] Speaker 02:
So when we're talking about order, we're talking about a purchase request and order for an item.

[00:26:32] Speaker 02:
But there is no order that is received when someone says, add something to my list.

[00:26:37] Speaker 02:
It's not a mechanism for ordering a product at all.

[00:26:42] Speaker 04:
Can you comment on the second issue about the memory, the memory?

[00:26:49] Speaker 02:
Yeah.

[00:26:49] Speaker 02:
So this is, so this claim requires two computer systems, right?

[00:26:54] Speaker 02:
And fresh up made the strategic choice to accuse only the user device, the echo, the fire TV or the fire top.

[00:27:05] Speaker 02:
And they did that because

[00:27:08] Speaker 02:
Nobody uses their Fire TV to order products or add to their shopping list, right?

[00:27:13] Speaker 02:
So they would have a tough time showing damages.

[00:27:16] Speaker 03:
But by accusing the product- Trial, didn't the backend servers come up quite a bit?

[00:27:22] Speaker 02:
The backend servers, they talked about them, but what the jury was instructed, and what was in the final pretrial order, was that the accused products were the user devices.

[00:27:33] Speaker 02:
The Echo, Fire tablet, or the Fire TV.

[00:27:37] Speaker 02:
And of course, those do not include the components on the backend server.

[00:27:41] Speaker 03:
Did they refer to Alexa?

[00:27:44] Speaker 02:
They, they accused those products, those products can interact with Alexa, but what was accused was the end user products that interact with Alexa.

[00:27:55] Speaker 02:
So those products obviously do not include the servers and our expert explained that and their expert admitted on cross.

[00:28:03] Speaker 02:
They don't include the servers in the non-volatile memories on the servers.

[00:28:08] Speaker 02:
So those products themselves do not literally infringe.

[00:28:13] Speaker 03:
Why didn't you raise this at trial?

[00:28:14] Speaker 02:
We did.

[00:28:15] Speaker 02:
We did.

[00:28:16] Speaker 02:
He's wrong.

[00:28:18] Speaker 02:
It's in our brief.

[00:28:19] Speaker 02:
Our experts said it.

[00:28:20] Speaker 02:
Their experts said it uncrossed.

[00:28:22] Speaker 02:
That's why Judge Albright addressed it in the J-Mall.

[00:28:26] Speaker 02:
There was evidence at trial completely about this.

[00:28:30] Speaker 04:
So what I'm sitting here thinking is, I guess I'm thinking, I'm not sure whether the argument here is about

[00:28:43] Speaker 04:
insufficiency of evidence or is it or it's about you are bound to something in a pre-trial instruction that you didn't object to or bound to something in the pre-trial order.

[00:28:59] Speaker 02:
Well, I think they were bound to what was in the pretrial order as to what the accused product was.

[00:29:07] Speaker 02:
And because that was also what the jury was instructed the accused product was, they can argue about other things.

[00:29:14] Speaker 02:
But what they had to show at trial was the accused product they identified in the final pretrial order and that was identified to the jury.

[00:29:22] Speaker 02:
That had to meet the elements of the claim, and it didn't.

[00:29:28] Speaker 02:
So there are three major issues where they didn't meet their burden.

[00:29:31] Speaker 02:
And we're nowhere near the type of extreme case where

[00:29:36] Speaker 02:
Jamal's appropriate, particularly in the Fifth Circuit, where, as you know, the jury was free to disregard their expert entirely.

[00:29:46] Speaker 02:
So they would have no evidence of infringement, and that was within the jury's purview.

[00:29:51] Speaker 02:
Let me switch, unless you would like me to address the new trial issues, which you didn't hear about, I'm fine skipping that.

[00:29:59] Speaker 02:
Let me go to the ineptible conduct, because there are a few things that were said here that were flat out wrong.

[00:30:05] Speaker 02:
So Mr. Weiss justified that he received the final rejection.

[00:30:12] Speaker 02:
That is something he would forward to his client.

[00:30:15] Speaker 02:
Now, they withheld those communications as privilege.

[00:30:20] Speaker 02:
But we do have a privilege log.

[00:30:22] Speaker 04:
Right, but we don't have an objection from you on appeal about the claims of privilege.

[00:30:29] Speaker 02:
No.

[00:30:30] Speaker 02:
You're correct, Your Honor.

[00:30:31] Speaker 02:
Correct.

[00:30:31] Speaker 02:
And all I was going to point out is that there are communications in the privilege log from Mr. Weiss to Fresh Hub right after that he received that final rejection.

[00:30:43] Speaker 02:
And he testified he had no reason to believe that the client did not receive that communication and that his practice was to send it.

[00:30:51] Speaker 02:
Same thing with the notice of abandonment.

[00:30:54] Speaker 04:
Just to clarify, I don't quite remember.

[00:30:59] Speaker 04:
The items in the privilege log about communications with, I guess ICANN it was, or ICANN, were about communications that came after the email he sent?

[00:31:16] Speaker 02:
Yes.

[00:31:17] Speaker 02:
So these communications are limited to this application because that's the only thing they logged.

[00:31:23] Speaker 04:
No, I'm asking a question about the precise timing.

[00:31:27] Speaker 02:
Yeah, I can give you the timing if I have it here written down.

[00:31:34] Speaker 02:
So after the final rejection issued, there's a log entries 91 and 92 that were sent two weeks later the same month.

[00:31:48] Speaker 02:
Those are 1720 to 21 in the appendix.

[00:31:51] Speaker 02:
After the notice of abandonment issue, their log entries 98 and 99, dated three days after the receipt of that abandonment, those are at 17-021.

[00:32:03] Speaker 02:
And then there are communications to Mr. Weiss before the petition to revive in 2017, and those are at 17-024.

[00:32:12] Speaker 03:
Now, how do we know these

[00:32:16] Speaker 03:
Communications that occurred are necessarily about this particular application.

[00:32:21] Speaker 02:
Because Mr. Weiss testified that he only logged communications that referred to the patents in suit.

[00:32:31] Speaker 02:
And this is the only pending application that related to these patents.

[00:32:35] Speaker 02:
All of these patents were filed based on the revived application that we're talking about now.

[00:32:42] Speaker 02:
So these are only about that application.

[00:32:46] Speaker 02:
That's the only thing he logged.

[00:32:47] Speaker 02:
That's the only thing he provided to us.

[00:32:49] Speaker 04:
And am I understanding the inference that you're asking from that is that the... Did Mr. Weiss follow this practice and communicate this?

[00:33:05] Speaker 04:
Not to try to finish.

[00:33:07] Speaker 04:
that non-receipt emails falling into a black hole is disproved by this.

[00:33:13] Speaker 02:
That didn't happen.

[00:33:15] Speaker 02:
And more importantly, we know it didn't happen because in December 2012, Mr. Weiss prepared this assignment document that explicitly listed this application as abandoned.

[00:33:28] Speaker 03:
Well, not so.

[00:33:30] Speaker 03:
clearly abandoned.

[00:33:31] Speaker 02:
Well, Mr. Weiss admitted that he listed it as abandoned.

[00:33:34] Speaker 03:
Well, on the assignment, it says something like abandoned, expired, or something else.

[00:33:40] Speaker 02:
Right.

[00:33:40] Speaker 02:
Or inactive.

[00:33:41] Speaker 02:
Or inactive.

[00:33:41] Speaker 03:
But Mr. Weiss... And so, therefore, if you're just looking at the face of the assignment, which has assorted application numbers, patent numbers, some of which have this label of, you know,

[00:33:56] Speaker 03:
that it's not clear just from the face that this thing was abandoned.

[00:34:01] Speaker 03:
This particular application was abandoned.

[00:34:04] Speaker 02:
Understood.

[00:34:04] Speaker 02:
But Mr. Weiss testified that he listed it and knew it was abandoned when he included it on that assignment document.

[00:34:12] Speaker 03:
He knew, but that doesn't necessarily mean the client knew.

[00:34:15] Speaker 02:
Understood.

[00:34:16] Speaker 02:
But the client received that and signed it in front of a notary.

[00:34:20] Speaker 02:
So this black hole notion is wrong.

[00:34:23] Speaker 02:
The client received it and signed it in front of a notary.

[00:34:26] Speaker 02:
Now, let me switch a little bit, because under FMC and other cases, right, Mr. Weiss's intent is attributable to the client.

[00:34:39] Speaker 02:
So, regardless, if we look at what Mr. Weiss knew, Mr. Weiss testified that he knew this abandonment was not a mistake.

[00:34:50] Speaker 02:
He knew it was intentional.

[00:34:52] Speaker 02:
I asked him and he testified.

[00:34:55] Speaker 02:
2017 did you wake up and you didn't wake up and find out this was a mistake and he said correct So mr. Weiss knew this is abandonment was Intentional he also testified that well, I think there's knowledge of it being abandoned

[00:35:13] Speaker 03:
And there's knowledge of it that the client intended it to be abandoned, are two different things.

[00:35:20] Speaker 03:
They're closely related, but they're different enough that that difference matters to this case.

[00:35:25] Speaker 02:
I understand.

[00:35:26] Speaker 02:
But I think the point is, when Mr. Weiss filed the petition to revoke, the patent office said, this has been abandoned a long time.

[00:35:35] Speaker 02:
We're relying on you that that entire delay was intentional.

[00:35:41] Speaker 02:
Now when Mr. Weiss knew in 2012 that the patent was abandoned and he testified he did nothing to revive it.

[00:35:50] Speaker 02:
He testified he knew in 2013 that the patent was abandoned and he did nothing to revive it.

[00:35:57] Speaker 02:
He knew in 2014 it was abandoned and did nothing to revive it.

[00:36:00] Speaker 02:
He knew in 2015 it was abandoned and did nothing to revive it.

[00:36:04] Speaker 02:
And he knew in 2017 that it hadn't been a mistake on his part.

[00:36:09] Speaker 02:
How can he truthfully say that that entire delay was unintentional?

[00:36:15] Speaker 02:
If you know something is abandoned.

[00:36:17] Speaker 04:
Well, on that particular question, I thought he was explicit that he said that he thought the intent for abandonment was not his, but the client's.

[00:36:30] Speaker 04:
And he did not know that, or rather,

[00:36:32] Speaker 04:
His knowing that it was abandoned is not the same thing as a client having intentionally done so.

[00:36:41] Speaker 02:
But his intent goes to the client and their FMC.

[00:36:46] Speaker 02:
he knew in that entire period that the patent was abandoned.

[00:36:52] Speaker 03:
Does FMC say that when an attorney knows that an application goes abandoned, that necessarily means, translates to the client knowing and intentionally choosing to deliberately allow an application to go abandoned?

[00:37:07] Speaker 03:
Is that what FMC says?

[00:37:09] Speaker 02:
It doesn't matter whether... Is that what FMC says?

[00:37:13] Speaker 02:
FMC says that the intent of... Yes or no, is that what FMC says?

[00:37:19] Speaker 02:
I don't know if FMC says explicitly that.

[00:37:21] Speaker 02:
What FMC says is that the intent of the applicant's representative matters.

[00:37:30] Speaker 04:
Right.

[00:37:31] Speaker 04:
So one of the things I said to Mr. Andre is there are two intents floating around here.

[00:37:35] Speaker 04:
I think you're talking about the second one, the intent behind the representation to the PTO, not the intent for the abandonment.

[00:37:45] Speaker 02:
Exactly, Your Honor.

[00:37:45] Speaker 02:
So when he says that this entire delay was unintentional,

[00:37:50] Speaker 02:
That is not correct.

[00:37:52] Speaker 02:
He knew it was abandoned.

[00:37:54] Speaker 02:
He did nothing to revive it.

[00:37:56] Speaker 02:
So therefore, whatever that period of delay between 2012 and 2017, it couldn't have been a mistake.

[00:38:05] Speaker 02:
He knew it wasn't a mistake.

[00:38:06] Speaker 02:
He knew every year it was abandoned, and he did nothing to revive it.

[00:38:11] Speaker 02:
That is an intentional act.

[00:38:23] Speaker 00:
I'm going to ask if you restrict your comments regarding the cross-appeal to his arguments.

[00:38:30] Speaker 01:
Okay, and just very clear, counsel said I was mistaken that we didn't accuse the Alexa system.

[00:38:36] Speaker 01:
That's not correct.

[00:38:37] Speaker 01:
It was in the pre-trial order.

[00:38:39] Speaker 01:
We always put in the fact that we accused the products they sell

[00:38:44] Speaker 01:
which is the Amazon Echo, the Fire TV.

[00:38:48] Speaker 01:
We always say that the products we always have include Alexa.

[00:38:55] Speaker 01:
And in our pre-trial order, we talk Alexa system.

[00:38:57] Speaker 01:
It has to connect with Alexa system.

[00:38:59] Speaker 01:
That's the second end of it.

[00:39:00] Speaker 01:
So when we talk in our pre-trial order, this is at 16349, 350.

[00:39:06] Speaker 01:
That the Amazon Echo products include all these different products and they say they also include Alexa.

[00:39:13] Speaker 01:
So I think that's undisputed With respect to the cross-appeal issue Very briefly there is a Two-step issue There is

[00:39:33] Speaker 01:
The... The falsity question and then... The intent.

[00:39:39] Speaker 04:
The intent.

[00:39:40] Speaker 04:
But the falsity includes a different intent.

[00:39:42] Speaker 04:
The falsity includes, since the statement that is supposedly false was a statement about the client's intentional abandonment.

[00:39:51] Speaker 04:
And I think as I'm understanding things, the core of your point is that it was not proved by clear and convincing evidence that the client intended the abandonment.

[00:40:02] Speaker 01:
That's correct.

[00:40:04] Speaker 01:
And nothing in the evidence shows that the patent examiner operated in bad faith.

[00:40:13] Speaker 01:
I would like to talk about the new trial, but we didn't talk about it, so I will respect the court and not bring that up, but hopefully sound the papers.