[00:00:00] Speaker 05:
The first case this morning is number 22, 1769, Lone Star Technology Innovations versus ASUS Computer International.

[00:00:11] Speaker 05:
Mr. Raghoshi.

[00:00:13] Speaker 04:
Good morning, Your Honors.

[00:00:15] Speaker 04:
Vinay Joshi for the appellant ASUS Tech.

[00:00:18] Speaker 04:
I have reserved five minutes for rebuttal.

[00:00:22] Speaker 04:
May it please the court, Your Honors, Lone Star does not own the patent.

[00:00:29] Speaker 04:
By that, I don't mean to say that they did not prove ownership.

[00:00:34] Speaker 04:
That is true also.

[00:00:35] Speaker 04:
But I mean to go a step further and say they do not own the patent.

[00:00:39] Speaker 00:
What type of standing argument are you raising?

[00:00:42] Speaker 00:
Are you raising an Article III standing argument?

[00:00:44] Speaker 00:
Are you raising a statutory standing argument?

[00:00:47] Speaker 00:
kind of categorize the type of argument you're raising?

[00:00:50] Speaker 04:
Yes, we are, we're not raising what they call the provincial, we're not saying somebody else is the owner and they need their permission together.

[00:00:58] Speaker 04:
We're saying that 35 USC 261 requires a written evidence of ownership.

[00:01:06] Speaker 04:
We don't believe the patent ever was assigned or owned by them or they have any license to sue other people with it.

[00:01:12] Speaker 05:
Okay, but that doesn't really answer the question.

[00:01:14] Speaker 05:
Are you relying on Article 3 standards?

[00:01:16] Speaker 05:
Yes.

[00:01:17] Speaker 05:
But not statutory standing?

[00:01:20] Speaker 05:
Yes, we're relying on Article 3 standing.

[00:01:22] Speaker 05:
Only?

[00:01:23] Speaker 05:
Yes.

[00:01:23] Speaker 05:
Okay.

[00:01:24] Speaker 05:
Yes.

[00:01:25] Speaker 05:
And so there was testimony at the trial as to patent ownership.

[00:01:32] Speaker 05:
So why isn't that sufficient to establish patent ownership?

[00:01:36] Speaker 04:
Because the case law is clear and we cited cases that say that the ownership must be proven through written instruments.

[00:01:44] Speaker 05:
According to trial testimony... That's a statutory standing order.

[00:01:48] Speaker 04:
I apologize, Your Honor.

[00:01:48] Speaker 04:
I'm confused, and I am claiming statutory.

[00:01:51] Speaker 05:
Yes.

[00:01:52] Speaker 05:
Okay, but the problem is you waived statutory standing by not raising it until after the trial was over with.

[00:01:59] Speaker 04:
Respectfully, that is incorrect.

[00:02:02] Speaker 04:
Where did you raise it?

[00:02:03] Speaker 04:
We raised it when I cross-examined Mr. Jesse Rice, and I asked him... When did you preserve it in the pretrial order that you were

[00:02:12] Speaker 00:
making this argument?

[00:02:13] Speaker 04:
We did.

[00:02:14] Speaker 04:
We did.

[00:02:15] Speaker 04:
We said three things in our pre-trial order.

[00:02:18] Speaker 04:
We said that we don't infringe, that the patent is invalid, and even if we do infringe, we don't owe any damages.

[00:02:26] Speaker 00:
How does that preserve the standing argument?

[00:02:29] Speaker 04:
Because if you infringe, you must pay some reasonable royalty damages.

[00:02:34] Speaker 04:
And because we said that even if we infringe, we don't owe any damages.

[00:02:40] Speaker 00:
Did you ever in your pretrial orders say that you disputed standing?

[00:02:45] Speaker 04:
We, in our pre-trial arguments, said that even if we infringe, we don't owe damages.

[00:02:49] Speaker 04:
That necessarily means they don't own the patent.

[00:02:52] Speaker 05:
Let's assume we reject that, and that we find that you waive the statutory standing argument by failing to raise it in the pretrial order.

[00:03:02] Speaker 05:
What is the problem, if any?

[00:03:04] Speaker 05:
as to constitutional standing?

[00:03:07] Speaker 04:
The problem with constitutional standing is that the chain of title, according to trial testimony of Mr. Rice, goes something like this.

[00:03:20] Speaker 04:
The inventors assign the patent to their employer, an Israeli company named Opus Technologies Limited.

[00:03:30] Speaker 04:
After that, Intel took ownership of the patent, but there is no evidence of that.

[00:03:36] Speaker 05:
You mean that they didn't show ownership because they misdescribed the chain of title?

[00:03:40] Speaker 04:
Is that the argument?

[00:03:42] Speaker 04:
At the oral hearing, and I'm sorry, at the trial.

[00:03:45] Speaker 05:
Can I answer one question?

[00:03:46] Speaker 05:
Yes.

[00:03:46] Speaker 05:
Is that the argument?

[00:03:49] Speaker 05:
They didn't establish patent ownership because they misdescribed the chain of title?

[00:03:53] Speaker 04:
They describe the chain of title correctly at the trial.

[00:03:58] Speaker 04:
It doesn't match up with the recordation at the Patent Office.

[00:04:00] Speaker 05:
So what?

[00:04:01] Speaker 05:
That has nothing to do with constitutional standing.

[00:04:06] Speaker 04:
Your Honor, the case law is very clear that ownership must be proven with written documents.

[00:04:12] Speaker 04:
That's 35 U.S.C.

[00:04:13] Speaker 04:
261.

[00:04:14] Speaker 05:
It's not an Article 3 requirement.

[00:04:20] Speaker 05:
Maybe we should go on to the next issue.

[00:04:22] Speaker 04:
Okay.

[00:04:23] Speaker 04:
So the next issue has to do with inducement.

[00:04:28] Speaker 04:
And there were two trials in this case.

[00:04:32] Speaker 04:
And the only method claims are at issue in this case.

[00:04:37] Speaker 04:
And there's no allegation of direct infringement by ASUS Tech.

[00:04:43] Speaker 04:
There's also no allegation of contributory infringement by ASUS Tech.

[00:04:47] Speaker 04:
So the only allegation is that of inducement.

[00:04:51] Speaker 04:
And after the first trial, the judge in the district court correctly ordered a second trial.

[00:04:57] Speaker 04:
Because the judge said that you did not show evidence of correlation between the damages and direct infringement.

[00:05:09] Speaker 04:
And so we had a second trial.

[00:05:11] Speaker 04:
So at the second trial, they didn't bring any evidence again of direct infringement.

[00:05:17] Speaker 04:
They said that the evidence that they have is the survey that we brought.

[00:05:22] Speaker 04:
We had a survey done to show that this optional feature, this is a menu you have to go into, then you go into a sub-menu, then you go into another sub-menu.

[00:05:31] Speaker 04:
It's not necessary that this method is executed every time a monitor is used or a projector is used.

[00:05:37] Speaker 04:
So then we go into, this is an optional method just like in Lucent Gateway.

[00:05:43] Speaker 04:
So we had this retrial.

[00:05:45] Speaker 04:
They said, well, your own evidence shows that about 16.2% of the users actually use this method.

[00:05:52] Speaker 04:
First of all, that wasn't submitted in their case.

[00:05:55] Speaker 04:
So when we made our 50A motion, it wasn't submitted.

[00:06:00] Speaker 05:
figure yes and you multiply that by six point four million dollar units and the highest royalty rate that they're claiming which is 70 cents a unit yes then you get something actually which is in excess yes jury verdict so why isn't the jury verdict supported by substantial evidence because even if you even if you if even if all of that is true

[00:06:26] Speaker 04:
and there is evidence of direct infringement and the jury has that leeway, where is the evidence that we induce that direct infringement?

[00:06:35] Speaker 04:
That's only circumstantial.

[00:06:37] Speaker 04:
The only evidence that there is is that we have these manuals that you can download online.

[00:06:43] Speaker 04:
They don't come with the box in which the monitor comes.

[00:06:46] Speaker 04:
So there needs to be shown some evidence

[00:06:49] Speaker 04:
And this is just Microsoft, the same situation that Microsoft was.

[00:06:54] Speaker 04:
So they need to show the correlation that the direct infringement was caused by inducement.

[00:07:00] Speaker 04:
And if they can't show that, then they only get damages based on circumstantial evidence of inducement, which is one unit of royalty per type of product.

[00:07:10] Speaker 06:
Haven't we said product manuals can be enough to substantiate inducement of infringement?

[00:07:18] Speaker 04:
They can be as circumstantial evidence, but then the damages that you get is just... So here we have many, many product manuals, right?

[00:07:26] Speaker 06:
And then we also have your company's website, the Q&A page, and then a few other things that are in the record that make it clearly available on how owners of this product can perform this recited method.

[00:07:46] Speaker 04:
That's true, Your Honor, and all of that is correct, factually.

[00:07:49] Speaker 04:
You can get those manuals online, either through our website, you can go on Amazon, you can go somewhere else, and you can get them.

[00:07:56] Speaker 04:
But the question is, did any of these 16.2% of the people that supposedly did the direct infringement do it based on those manuals, or they just played around and they did it?

[00:08:07] Speaker 04:
If they did it, we didn't use.

[00:08:09] Speaker 04:
So there are these manuals, but the question is, what kind of damages do you get?

[00:08:15] Speaker 04:
And Lucent Gateway is quite clear that you would get circumstantial evidence damages, which is for one unit per type of product.

[00:08:25] Speaker 04:
You wouldn't get it for all 16.2% because there was no showing of inducement to do that direct infringement.

[00:08:33] Speaker 05:
Could we move on, unless my colleagues have further questions about damages, move on to the question of infringement and

[00:08:42] Speaker 05:
issue of what you characterize as a secret claim construction.

[00:08:46] Speaker 02:
Yes.

[00:08:47] Speaker 05:
I confess that I found this all very confusing.

[00:08:51] Speaker 05:
Yes.

[00:08:53] Speaker 05:
And why isn't the approach that the plaintiff's expert took the correct approach that talks about

[00:09:08] Speaker 05:
not affecting other pixels or whatever that they're talking about, not changing it beyond the change to the one component, let's say rib 233 or something like that.

[00:09:27] Speaker 05:
It doesn't require that you only change pixels with an identical linear composition.

[00:09:37] Speaker 04:
Okay.

[00:09:38] Speaker 04:
Are you finished, sir?

[00:09:38] Speaker 04:
May I?

[00:09:39] Speaker 04:
Yes, okay.

[00:09:40] Speaker 04:
So the definition is of a term called individual color.

[00:09:46] Speaker 04:
The definition of the individual color, the court got it exactly right.

[00:09:50] Speaker 04:
It says it's a linear combination of color components or colors.

[00:09:53] Speaker 04:
So for example, before me are red, blue, yellow.

[00:09:57] Speaker 04:
In computers they're red, blue, and green, and all the other colors are a combination of them.

[00:10:02] Speaker 04:
So now you identify an individual color.

[00:10:05] Speaker 04:
Let's say it's 30% red, 30% blue, and 40% green.

[00:10:10] Speaker 04:
So now what happens is you go to the next step,

[00:10:13] Speaker 04:
which is identification, and there it says said, selected.

[00:10:17] Speaker 04:
So you selected an individual color, you selected a color.

[00:10:20] Speaker 04:
Let's say it's all red or, you know, let's for example, let's say it's all red, 100% red, and then the G and the B are zero.

[00:10:29] Speaker 04:
Now you go to the next step and you say you identify within those pixels where that color is, okay?

[00:10:35] Speaker 04:
So at that point, it should be that color.

[00:10:38] Speaker 04:
But there is a second definition.

[00:10:40] Speaker 04:
The second definition says, no, no, no, what red is, is based on logical conditions.

[00:10:46] Speaker 04:
So for example, somebody could, and this is what even their expert says, I don't understand this, I'm using it, but I could define any logical condition any way I want.

[00:10:56] Speaker 04:
He used the logical condition, anything that has even a little bit of red.

[00:11:01] Speaker 04:
So 1% red and 99% blue, he says is red.

[00:11:05] Speaker 04:
OK.

[00:11:05] Speaker 00:
Is your argument that you believe the plane construction is

[00:11:10] Speaker 00:
inconsistent for the same term between steps B and C?

[00:11:13] Speaker 00:
Yes.

[00:11:14] Speaker 05:
Why did you suggest that claim construction which gave the same construction for individual color throughout the patent claim?

[00:11:26] Speaker 05:
Could you please say that again?

[00:11:27] Speaker 05:
I did not hear.

[00:11:28] Speaker 05:
Why then, if it was supposed to be different between B and C, why did you in your proposed claim construction offer a construction which was adopted by the district court

[00:11:39] Speaker 05:
which is the same for B and C. Yes, no.

[00:11:43] Speaker 04:
Well, that's not true because we were not allowed to show the jury the entire claim construction order, just the definitions.

[00:11:51] Speaker 04:
So that's the definition, but then their expert got on the stand and applied it in a way that was different from the first one.

[00:11:58] Speaker 05:
Okay, but your definition for individual color was the same for B and C, and now you're saying it shouldn't be the same, right?

[00:12:05] Speaker 04:
No, I'm saying it should be the same, and the court's order makes it different.

[00:12:09] Speaker 04:
The court's order says, for the first time, it's in one color, like red.

[00:12:13] Speaker 04:
And the second time, the person, the expert, whoever is looking at it, gets to logically define whatever they want it to be.

[00:12:21] Speaker 00:
Can you show us where the court's order makes it different?

[00:12:26] Speaker 04:
Yes.

[00:12:26] Speaker 04:
So there is a section in the claim construction order that begins with differences.

[00:12:36] Speaker 04:
Let me find that, Your Honor.

[00:12:37] Speaker 04:
One second.

[00:12:38] Speaker 04:
I have it.

[00:12:39] Speaker 03:
I believe it's Appendix 1059.

[00:12:46] Speaker 03:
Okay, so now there's a section, so the claim construction order begins before, but then

[00:13:08] Speaker 04:
At 1059 at the bottom, defendants suggest that claim one selecting step is limited to selecting an exact individual color and they are correct.

[00:13:19] Speaker 04:
So it needs to be exact.

[00:13:20] Speaker 04:
It needs to be red or 30% red, 30% green, 30% blue.

[00:13:25] Speaker 06:
Well, that's the rub of things.

[00:13:29] Speaker 06:
Your argument is premised on the idea that individual color has to be a particular

[00:13:36] Speaker 06:
color point notation.

[00:13:38] Speaker 06:
Yes.

[00:13:38] Speaker 06:
You know, certain R value, certain G value, and a certain B value.

[00:13:43] Speaker 06:
Yes.

[00:13:44] Speaker 06:
And the district court at 1060 clearly rejected that idea, that individual color doesn't have to be a particular color point notation for a particular pixel.

[00:13:57] Speaker 06:
It's not a pixel-based kind of conception of individual color.

[00:14:01] Speaker 06:
Individual color could just even be read alone.

[00:14:05] Speaker 06:
Yes.

[00:14:05] Speaker 06:
And that's borne out by all the different embodiments that are described later in the patent specification, where they say, in all those examples, hey, you can just have red as the individual color.

[00:14:19] Speaker 06:
And so if just red can be the individual color, then there isn't a variance in understanding of how individual color, the term, is being used in the selecting step and the identifying step, because you select

[00:14:35] Speaker 06:
red as their individual color, and you're going to change the hue or saturation of red.

[00:14:41] Speaker 06:
And then you're going to identify all those pixels that have red, right?

[00:14:46] Speaker 06:
Yes.

[00:14:46] Speaker 06:
Maybe among other things too, of course, but that have red.

[00:14:49] Speaker 06:
Yes.

[00:14:50] Speaker 06:
And then use some sort of formula to decide which of those pixels that have red that are going to be identified, quote unquote, to have their hue actually changed.

[00:15:03] Speaker 06:
So in that way, individual color, with that understanding, it doesn't have some kind of migrating, differing understanding between the two steps.

[00:15:12] Speaker 04:
Well, it does, Your Honor, because the way this order is, and then they go on to say that to the extent the defendants argue that

[00:15:23] Speaker 04:
identifying step is limited to identifying that have the exact individual color they are incorrect so let's say you pick red okay let's say you pick like right so it's like the judge there is talking about to the extent you believe

[00:15:38] Speaker 06:
The pixels have to have the exact individual color.

[00:15:40] Speaker 06:
That means pixels that have the exact color point notation.

[00:15:45] Speaker 06:
Right.

[00:15:46] Speaker 06:
Pixels that are particularly coded with an overall color scheme.

[00:15:50] Speaker 06:
And there the district court is saying, no, that's not correct, because as all those embodiments show, you could just select a color like red or like green that you want to turn up or turn down the hue on.

[00:16:02] Speaker 04:
Right.

[00:16:03] Speaker 04:
But Your Honor, the purpose of clean construction

[00:16:05] Speaker 04:
is to make things more definite so we can talk about infringement and invalidity.

[00:16:10] Speaker 04:
This makes everything amorphous.

[00:16:11] Speaker 04:
It leaves it to the expert on both sides to apply whatever logical conditions.

[00:16:17] Speaker 04:
They don't even limit it to preferred environments.

[00:16:19] Speaker 05:
The problem that I see

[00:16:20] Speaker 05:
is that this qualification to the claim construction, which appears at 1059 and 1060, was not something that the jury was informed about.

[00:16:31] Speaker 05:
And in fact, the judge refused to allow the jury to be informed about it.

[00:16:37] Speaker 05:
So what the jury was told was confusing.

[00:16:43] Speaker 05:
Now, what we do about that is another question, but that's the heart of the problem, isn't it?

[00:16:50] Speaker 04:
That's exactly right, Your Honor, and if I may add to that, it also harmed us in our cross-examination of the expert, their expert, because the jury didn't know about his further clarification, so to speak.

[00:17:04] Speaker 04:
And we're trying to explain to the jury that the expert is using two different definitions, but we weren't able to do that at trial.

[00:17:13] Speaker 06:
Well, then didn't you make an objection to that, to preserve it for appeal?

[00:17:17] Speaker 06:
Yes.

[00:17:17] Speaker 06:
Well, it's not clear to me that you did.

[00:17:20] Speaker 06:
I mean, right now, what we have is what you refer to as a secret claim construction that never got in front of the jury.

[00:17:28] Speaker 06:
Yes.

[00:17:28] Speaker 06:
So you can't appeal it in that way.

[00:17:32] Speaker 06:
At the same time, I didn't really see throughout the trial where you said, you know, we are unable to present our case because, Judge, you're not allowing us to because it doesn't conform with your secret construction.

[00:17:53] Speaker 06:
And so, you know, we objected that.

[00:17:55] Speaker 04:
No, no, we did, Your Honor.

[00:17:57] Speaker 04:
There's actually a footnote in my brief.

[00:17:58] Speaker 04:
We did it twice.

[00:17:59] Speaker 04:
Once we actually, after the order, we appealed with the motion.

[00:18:02] Speaker 04:
That's in the record.

[00:18:04] Speaker 04:
And then there was a sidebar.

[00:18:05] Speaker 05:
Where's the footnote you're talking about?

[00:18:08] Speaker 03:
Where the judge said, you are flirting with something I told you not to do.

[00:18:14] Speaker 03:
One second.

[00:18:18] Speaker 03:
It might be in my reply.

[00:18:21] Speaker 03:
I recall a sidebar where the judge stopped me.

[00:18:25] Speaker 03:
I even asked their expert to read something and I was told not to do that.

[00:18:34] Speaker 03:
I can find it, Your Honor.

[00:18:35] Speaker 03:
I know.

[00:18:36] Speaker 05:
Is this in your opening brief?

[00:18:41] Speaker 03:
It's in the opening or in the reply brief, but I was, I was, I remember really I was shut down from doing that.

[00:18:49] Speaker 05:
Well, there's no question that you were shut down.

[00:18:52] Speaker 05:
The question is whether you raised that as an issue.

[00:18:54] Speaker 05:
Yes, yes, yes, yes, I did.

[00:18:57] Speaker 05:
You have to raise it in the blue brief.

[00:18:59] Speaker 02:
I did, I did.

[00:19:00] Speaker 02:
Let me

[00:19:12] Speaker 03:
We move for reconsideration too.

[00:19:15] Speaker 03:
Okay, here is it.

[00:19:17] Speaker 04:
In the blue brief 64, page 64 footnote 7, the district court stated, I assure you Mr. Joshi that the claim construction order did not limit the claim to the preferred embodiment.

[00:19:35] Speaker 04:
And it sounds like to me that's precisely what you're trying to do here, and I'm going to caution you against that.

[00:19:40] Speaker 04:
That's part of the larger conversation I had with the judge at the sidebar.

[00:19:46] Speaker 05:
Well, what is it in the blue brief that you're complaining about?

[00:19:50] Speaker 04:
So what I'm complaining about is that... You didn't offer a different claim construction.

[00:19:57] Speaker 05:
You just offered the one claim construction, which he adopted and then qualified

[00:20:04] Speaker 05:
in the text you were referring to earlier.

[00:20:08] Speaker 05:
What's the point you're making in the blue brick?

[00:20:10] Speaker 05:
The point I'm making is that he improperly shut you down from exploring the significance of this, quote, secret claim construction.

[00:20:21] Speaker 04:
Yes, he did not allow me to explore on claim construction.

[00:20:25] Speaker 04:
The definition, the first definition, the one that was given to the jury, a linear combination of individual colors, is not what their expert used that trial.

[00:20:33] Speaker 04:
He used a different definition to show that, what he was trying to show is that no other color changes, right?

[00:20:39] Speaker 04:
That's the big deal about this claim.

[00:20:41] Speaker 04:
You change one color, everything else remains the same.

[00:20:44] Speaker 04:
Now he's saying everything else changes, but they're also red.

[00:20:47] Speaker 04:
There's red in every pixel because there is no logic as to what red is.

[00:20:51] Speaker 04:
If it's all blue, it's red.

[00:20:53] Speaker 04:
If it's all green, it's red.

[00:20:55] Speaker 04:
So this limitation that no other pixel is changing, he says, by logic, nothing changes, even if they all change.

[00:21:04] Speaker 00:
Can I get a little bit more clarity regarding when you raised issues with this quote unquote secret claim construction?

[00:21:12] Speaker 00:
first at the trial level, and then I assume you're pointing us to page 64, note 7 for where you think you raised in the blue brief, and then I did see some more statements about it in the reply.

[00:21:24] Speaker 00:
Can you tell me how the claim construction was presented on this particular limitation in dispute to the jury?

[00:21:33] Speaker 00:
how, if at all, the secret claim constructions would have been presented to them?

[00:21:37] Speaker 04:
So the jury was just given the definition.

[00:21:45] Speaker 04:
So all the jury knew was individual color is a linear combination of colors or color components.

[00:21:50] Speaker 04:
That's all they got.

[00:21:51] Speaker 04:
Nothing more.

[00:21:53] Speaker 04:
The secret is we were told by the judge that only those one line definitions of various terms will be given to the jury.

[00:22:02] Speaker 04:
But the claim construction order has this section, which I showed before, where it says further clarification or it says there are further disputes.

[00:22:11] Speaker 04:
That portion was never allowed to be shown to the jury.

[00:22:17] Speaker 06:
So then it didn't affect the jury verdict?

[00:22:19] Speaker 04:
It didn't affect the jury verdict.

[00:22:23] Speaker 04:
Well, it affected the jury verdict because

[00:22:27] Speaker 04:
We wanted to have a discussion with their expert about the logical conditions, which this footnote says is not limited to the deferred embodiments.

[00:22:39] Speaker 04:
So there is no definition here.

[00:22:43] Speaker 04:
Like every color is red.

[00:22:45] Speaker 06:
I'm lost because I don't see you raising an objection at trial saying, Your Honor, we want to preserve

[00:22:52] Speaker 06:
for appeal, the fact that we are unable to present a certain kind of non-infringement theory because there is some kind of additional construction that we are obligated to follow at this trial that blocks us from making our non-infringement case.

[00:23:13] Speaker 04:
No, Your Honor, respectfully, that is not correct.

[00:23:16] Speaker 04:
We filed an entire brief to protest the claim construction and then at trial too, there is a sidebar that's in the record on that point.

[00:23:27] Speaker 06:
I'm just having trouble identifying that in your blue brief so that you can actually have a vehicle to

[00:23:35] Speaker 06:
appealed what you're calling a secret claim construction because it didn't get to the jury.

[00:23:42] Speaker 06:
So in that sense, it couldn't have harmed you through the jury verdict with some kind of flawed jury instruction.

[00:23:51] Speaker 06:
Then the next question is, all right, well, how else, if the jury never saw it, how did it actually hurt you?

[00:23:57] Speaker 06:
Well, maybe it hurt you because you weren't able to present a non-infringement theory, but I don't see you

[00:24:05] Speaker 06:
explaining to us in the brief that you made that kind of objection at trial that could preserve it for appeal.

[00:24:14] Speaker 04:
Well, no, we do discuss in our brief, so like if we go to, for example, page 75 of the blue brief, so that's where we explain

[00:24:27] Speaker 04:
how this hurt us on non-infringement because even their expert admitted on those pages right there, I would say 74 onto 79, what we explain is that if we go by the definition of individual color, red, we have a very, very strong non-infringement argument that there are many pixels

[00:24:55] Speaker 05:
other than that red, that change, and therefore we don't... In other words, there are other pixels other than the linear combination.

[00:25:06] Speaker 05:
Yeah, they identify... Or linear combination that are changed as a result.

[00:25:10] Speaker 05:
Yes.

[00:25:10] Speaker 05:
In your product.

[00:25:11] Speaker 04:
Yes.

[00:25:12] Speaker 04:
Right.

[00:25:12] Speaker 04:
Yes.

[00:25:13] Speaker 04:
And their expert admits that, and that's why he goes to this definition where he makes it amorphous, and he says, under logic, I can define it to be anything I want it to be, but that's not the purpose of plane construction.

[00:25:25] Speaker 00:
Can I ask you this?

[00:25:26] Speaker 00:
So I've been poring over this record some, and at least on appendix page 2333, there seems to be some discussion back and forth between your team and the judge regarding what's going on in terms of claim construction and what is going on with the witnesses.

[00:25:47] Speaker 00:
Am I understanding that correctly, that this is where you're saying down below,

[00:25:52] Speaker 00:
You may have raised an issue in terms of what we're calling the secret claim constructions.

[00:25:58] Speaker 00:
I'm in the appendix 2333.

[00:26:02] Speaker 03:
The misimpression has endorsed the theory without football.

[00:26:07] Speaker 06:
This is actually the other side arguing for a mistrial, right?

[00:26:13] Speaker 03:
Yes.

[00:26:14] Speaker 04:
Oh yeah, well they argued for a mistrial because they said that because I raised objections about these two different definitions and they said jury had heard some of that and they moved for a mistrial based on that.

[00:26:28] Speaker 00:
So I'm still struggling a little bit, and I apologize for struggling on this.

[00:26:34] Speaker 00:
Where, if at all, did you contend that there was a problem in terms of something going to the jury, whether it was in the form of testimony that some of the witnesses felt bound by the secret constructions and they were testifying accordingly?

[00:26:48] Speaker 00:
And where was that preserved below?

[00:26:52] Speaker 00:
And then where would that be preserved in the blue brief?

[00:26:55] Speaker 04:
So that came out below in two places, one at trial and before we filed a brief protesting or re-urging or... The motion for reconsideration.

[00:27:06] Speaker 04:
Reconsideration.

[00:27:07] Speaker 04:
At the trial, I had myself, their expert's name is Dr. Dusharmai.

[00:27:13] Speaker 04:
And he had and I had an extensive discussion about these two different definitions that he's using and even he said that doesn't make sense to me and I quoted that in I believe it's in the reply brief.

[00:27:27] Speaker 04:
I said well you didn't he says it doesn't make sense to me but that's the logic I'm using and I said what logic are you using?

[00:27:34] Speaker 04:
He said logic is if you even have slight red if it's 99% blue and 1% red I can call it red under the definition.

[00:27:41] Speaker 00:
Do you have a page

[00:27:43] Speaker 00:
As to what you're describing, is there something I can look at in the record?

[00:27:47] Speaker 03:
Yes, I can.

[00:27:48] Speaker 03:
So that would be...

[00:28:11] Speaker 00:
I will offer that if my colleagues are okay with it, you can give me the page on rebuttal.

[00:28:20] Speaker 03:
Well, I'll give it to you right now.

[00:28:21] Speaker 03:
It will just take me just a second.

[00:28:27] Speaker 05:
Why don't you give it to us on rebuttal?

[00:28:50] Speaker 01:
May it please the court?

[00:28:51] Speaker 01:
My name is Jennifer Shimodo for Lone Star Technological Innovations, LLC.

[00:28:57] Speaker 05:
I guess I'll... So there seems to be a real problem here with infringement.

[00:29:02] Speaker 05:
Let's address that first.

[00:29:05] Speaker 05:
The jury was given a single instruction about the meaning of individual color.

[00:29:11] Speaker 05:
It was denied access to the claim construction order.

[00:29:17] Speaker 05:
If I had been on the jury, I would have been very confused as a result of this.

[00:29:24] Speaker 05:
Now, what the consequence of that is, I don't know.

[00:29:27] Speaker 05:
I mean, why is it that you were fighting against disclosing to the jury this other aspect of the claim construction or which would have made sense out of the arguments that you were making?

[00:29:46] Speaker 01:
Well, first of all, I disagree with their assertion that there was this secret claim construction or even a second definition.

[00:29:56] Speaker 05:
They're referring to the fact that the claim construction had a gloss on individual color, which was not brought before the jury.

[00:30:07] Speaker 05:
That's true, isn't it?

[00:30:10] Speaker 01:
No, it was defined.

[00:30:11] Speaker 01:
It was given the definition that was given to them.

[00:30:14] Speaker 05:
They were instructed only with the definition, and they weren't told about the gloss that the district court put on it.

[00:30:22] Speaker 01:
But I guess what I would argue, Your Honor, is that the court found that way because when you look at the actual claims themselves, the use of individual color is referring to

[00:30:36] Speaker 01:
the choices that you have to select from.

[00:30:38] Speaker 01:
So in a three-axis monitor, it's red, blue, green, for example.

[00:30:44] Speaker 05:
Individual color is defined in terms of a particular combination.

[00:30:52] Speaker 05:
So you could choose all three of these.

[00:30:54] Speaker 05:
Weight in linear terms, right?

[00:30:59] Speaker 01:
Yes, but when you then talk about the selecting or the identifying, when you use those with the said individual color, then it goes into talking about the selecting of the pixels and so forth.

[00:31:13] Speaker 01:
For example, in the 1C, the identifying portion, it says identifying a plurality of said input image pixels having said individual color.

[00:31:24] Speaker 05:
Is it not the case that in C, the reference to individual color is not referring to a linear combination?

[00:31:36] Speaker 01:
It's referring to the individual color of red, blue, or green.

[00:31:41] Speaker 05:
Is your answer that it is not referring to a linear combination?

[00:31:46] Speaker 05:
In other words, the claim construction

[00:31:49] Speaker 05:
that the jury was given cannot be applied to the use of the word individual color in seek.

[00:31:58] Speaker 01:
Well, you certainly could choose an individual color of more than that.

[00:32:03] Speaker 05:
No, but you're not answering my question.

[00:32:04] Speaker 05:
You cannot use the simple claim construction that the judge charged the jury with in interpreting the words individual color in seek.

[00:32:16] Speaker 05:
It makes no sense, right?

[00:32:21] Speaker 01:
I think it makes sense, Your Honor, in that the court said that it could not be the pixels, or it doesn't have to be the pinpoint.

[00:32:30] Speaker 01:
Pixel is not what the individual color is.

[00:32:33] Speaker 01:
That's when you get down to the selecting or identifying stage.

[00:32:36] Speaker 05:
Where did the court say that?

[00:32:37] Speaker 05:
That's not the claim construction that the court gave the jury.

[00:32:41] Speaker 01:
But it is in the actual claim itself when you read the claim.

[00:32:45] Speaker 06:
Well, the judge said this under the heading of the additional construction disagreements, where it said individual color doesn't have to be the

[00:32:56] Speaker 06:
particular color point for a given pixel.

[00:32:59] Speaker 01:
Correct.

[00:32:59] Speaker 06:
But that still brings me back to Judge Dyke's original question, which is, why did the district court restrict the jury from seeing this portion of the Markman order discussing this additional construction disagreement?

[00:33:23] Speaker 01:
I don't have an answer for why the court

[00:33:27] Speaker 01:
took that position.

[00:33:29] Speaker 01:
But certainly, I think that when you look at the claims, that it's clear when you talk about the selecting or the identifying.

[00:33:40] Speaker 06:
Let me get to Judge Dyck's question in a different way.

[00:33:43] Speaker 06:
Sure.

[00:33:43] Speaker 06:
The district court seemed to think just the color red can be an individual color.

[00:33:48] Speaker 01:
Sure.

[00:33:50] Speaker 06:
Why is the color red alone a linear combination of colors or color components?

[00:33:58] Speaker 01:
It is how it's defined by the inventor in the patent itself.

[00:34:03] Speaker 06:
Can you just in plain language answer my question, which is also, I think, Judge Dyck's question.

[00:34:09] Speaker 06:
Why is the color red a linear combination of colors or color components?

[00:34:16] Speaker 06:
I've been wondering that for the past several days.

[00:34:20] Speaker 06:
And maybe you can provide me with an answer to that.

[00:34:24] Speaker 01:
I would say that red is a linear combination and that it could be that you choose to choose red and blue, green, I guess, but red in and of itself is

[00:34:42] Speaker 06:
Okay, it sounds like there's not a great answer, maybe.

[00:34:45] Speaker 06:
Nobody in this world can provide a great answer.

[00:34:48] Speaker 06:
You are the best candidate on the planet, and I'm not hearing something very good, so maybe the best answer is, what we have is...

[00:34:59] Speaker 06:
a bit of a wonky patent specification, where we have one place saying, individual color means a linear combination of color or color components.

[00:35:07] Speaker 06:
And then we have a series of embodiments, cases one through six, which identify just a color in each example as being the individual color.

[00:35:15] Speaker 01:
Will the inventor?

[00:35:16] Speaker 06:
Please do not interrupt.

[00:35:18] Speaker 06:
I'm sorry.

[00:35:18] Speaker 06:
I might be trying to help you at this moment.

[00:35:20] Speaker 01:
My apologies, Sharar.

[00:35:23] Speaker 06:
So we have another portion of the specification, cases one through six.

[00:35:28] Speaker 06:
where in each case they just identify as the individual color something like a red or a green or a blue, etc.

[00:35:36] Speaker 06:
And so that seemed to be what the district court was trying to do in reconciling all of this in the patent by saying, you know, the patent also tells me that red alone can be an individual color.

[00:35:49] Speaker 06:
may not cleanly fit with translating into a linear combination of color and color components, but at least these embodiments drive this certain kind of understanding.

[00:36:01] Speaker 06:
Could that be the best way to understand what's going on here?

[00:36:04] Speaker 01:
It could be, Your Honor.

[00:36:05] Speaker 01:
And I would also point that the inventor.

[00:36:07] Speaker 05:
Well, there's probably no other better way for you than that.

[00:36:09] Speaker 05:
But the problem that I see with that is what Judge Chan is suggesting, and it may be correct, is that the district court's interpretation of the patent and the order was correct.

[00:36:22] Speaker 05:
The problem is the jury wasn't told that.

[00:36:26] Speaker 05:
The jury was given an instruction as to the meaning of individual color.

[00:36:30] Speaker 05:
which rendered the whole claim incoherent.

[00:36:34] Speaker 05:
That's the problem.

[00:36:41] Speaker 01:
I understand, Your Honor.

[00:36:43] Speaker 01:
I don't have a great answer for why that is.

[00:36:47] Speaker 06:
Is the issue preserved?

[00:36:52] Speaker 01:
Well, I don't believe that the issue is preserved.

[00:36:55] Speaker 01:
It didn't seem as though

[00:36:56] Speaker 01:
they objected to that, but they've made different arguments at different times that makes it a little muddling.

[00:37:04] Speaker 00:
But did you say you agree that they did object to that at trial?

[00:37:07] Speaker 00:
No, I said that I don't think they objected to that at trial.

[00:37:12] Speaker 00:
Let me ask you a housekeeping question, which might be a welcome reprieve.

[00:37:17] Speaker 00:
The housekeeping question is, with respect to this

[00:37:21] Speaker 00:
Definition proposed by the District Court of Individual Color, it says linear combination of colors or color components.

[00:37:27] Speaker 00:
Do you view linear combination as also modifying color components?

[00:37:34] Speaker 00:
Do you understand my question?

[00:37:36] Speaker 01:
No, can you say it again?

[00:37:37] Speaker 01:
I'm sorry.

[00:37:37] Speaker 00:
So if you have Appendix Page 1058, it might be easier if you look at it.

[00:37:41] Speaker 00:
Sure.

[00:37:45] Speaker 00:
And tell me when you're there.

[00:37:47] Speaker 00:
I'm sorry, I thought it would be easier to answer my question if you turn to appendix page 1058 and then once you're there I can reiterate the question.

[00:37:58] Speaker 00:
Okay, go ahead.

[00:37:59] Speaker 00:
Okay, so as you can see it says the core considers the term individual color to mean linear combination of colors for color components.

[00:38:07] Speaker 00:
My question to you is does linear combination also modify color components?

[00:38:13] Speaker 00:
Or do you just see it as modifying colors?

[00:38:22] Speaker 00:
How do I understand the clem destruction is what I'm trying to ask.

[00:38:26] Speaker 00:
I would say that it modifies both.

[00:38:32] Speaker 01:
But I would also point out that within the specification, it does give the inventor gave a definition of individual color and gave that linear combination, but also then put such as red, blue, green at the end of it.

[00:38:52] Speaker 01:
And the court took that out, which was our construction, our proposed construction.

[00:38:59] Speaker 01:
That would have clarified the issue.

[00:39:07] Speaker 00:
If we view there being a problem with the claim construction that was appropriately preserved, and let's assume for the moment, appropriately presented to us here, what do you believe would be the right form of relief?

[00:39:23] Speaker 00:
for next step.

[00:39:30] Speaker 01:
I guess the right step would be that you would remand and would have another trial in this case.

[00:39:42] Speaker 06:
Is there any other litigation going on in this case?

[00:39:47] Speaker 06:
No.

[00:39:50] Speaker 06:
If we did a hard or firm or a hard reverse, that would be the end of everything.

[00:39:56] Speaker 06:
Correct.

[00:40:08] Speaker 01:
I wanted to talk briefly about the standing issue that he brought up, that Zeus brought up.

[00:40:19] Speaker 01:
that it would be clear that ASUS never did bring this up in the pretrial order.

[00:40:25] Speaker 01:
And they're claiming that because they say, well, we said that the issue of damages was an issue, but they also claimed invalidity or non-infringement.

[00:40:35] Speaker 01:
And had the jury found that, or if there was a finding of invalidity, for example, or non-infringement, then we wouldn't have been awarded damages either.

[00:40:46] Speaker 01:
So that was never brought up during trial at all.

[00:40:50] Speaker 01:
In terms of damages and its correlation issue, there's a confusion, I believe, in ASUS between the inducement and the correlation that's necessary of use for damages.

[00:41:07] Speaker 01:
In Lucent, they said that you just needed a correlation in some way between the use and the actual damage award.

[00:41:19] Speaker 01:
And the actual inducement was shown through the first trial, through the manuals, and so forth, and there was testimony.

[00:41:26] Speaker 01:
But that issue was resolved in the first trial.

[00:41:31] Speaker 01:
It wasn't an issue for the second trial, which was just on damages.

[00:41:37] Speaker 00:
While I'm not a fan of people waxing poetic, do you want to summarize up your best argument for why you believe there should be clear affirm on this infringement issue that

[00:41:48] Speaker 00:
We've all been discussing with you.

[00:41:52] Speaker 01:
I believe there should be a clear affirm because the district court, when you look at the claim construction and then you look at what they are saying is wrong with it and talking about, oh, it has to have logical conditions, well, it talks about logical operations in other parts of the claims.

[00:42:11] Speaker 01:
It also talks about the identifying of said

[00:42:16] Speaker 01:
input image pixels having said selected individual color.

[00:42:21] Speaker 01:
So once you've selected red, for example, then the next step is to identify the pixels or identify the conditions under which you will change those pixels, which pixels within red it will change.

[00:42:38] Speaker 01:
But it doesn't affect.

[00:42:39] Speaker 01:
And then the last step, of course, is the display.

[00:42:43] Speaker 01:
without affecting the other color.

[00:42:44] Speaker 01:
So if you change something in red, it's not going to affect blue or green.

[00:42:50] Speaker 01:
However, and maybe this is shown better in like a six axis, for example, a three axis that only has red, blue, or green as your choices, changing red could change, at least to the human eye, what we would consider purple or pink or

[00:43:07] Speaker 01:
magenta or anything else.

[00:43:09] Speaker 01:
But when you go to a six axis, it doesn't change that.

[00:43:13] Speaker 01:
It would have a different effect because the computer doesn't see that as red.

[00:43:21] Speaker 01:
They would see that as magenta, for example, and be defined that way.

[00:43:30] Speaker 01:
Thus, the construction makes sense when you read the rest of the claims instead of trying to muddle it.

[00:43:37] Speaker 01:
And I don't believe that there was a second claim construction or a secret claim construction that was given, because the so-called secret claim construction is really just something that is incorporated when you have to read the plurality of said input pixels.

[00:43:58] Speaker 05:
Okay, we're out of time.

[00:43:59] Speaker 05:
Let me ask a question.

[00:44:00] Speaker 05:
If we were to pause the issuance of a decision for 30 days to enable the parties to discuss settlement, would that be useful?

[00:44:12] Speaker 01:
My plan would certainly be open to that.

[00:44:15] Speaker 01:
I think that's a better question for maybe a six.

[00:44:19] Speaker 05:
Thank you.

[00:44:20] Speaker 01:
Thank you.

[00:44:25] Speaker 05:
Mr. Joshi, before you get into your rebuttal, what's your response to that?

[00:44:31] Speaker 04:
Yeah, I would, obviously, I would make a strong recommendation to the client that we participate fully in any type of mediation if there's a pause of 30 days.

[00:44:46] Speaker 04:
Okay.

[00:44:46] Speaker 04:
Judge Cunningham, Your Honor, if I may start by answering your question, may I please ask you to take a look at

[00:44:55] Speaker 04:
Appendix 2587.

[00:45:20] Speaker 00:
So this is the motion for reconsideration?

[00:45:22] Speaker 04:
Yeah, this is a motion, but let me show you why it's a trial document.

[00:45:26] Speaker 04:
Do you see the date of filing is at May 19, 2021?

[00:45:30] Speaker 04:
Yes.

[00:45:31] Speaker 04:
And then if I may ask you to just flip a few pages to 2597, it's about four or five pages later.

[00:45:38] Speaker 04:
Do you see the trial, it's a trial transcript?

[00:45:45] Speaker 00:
I see it.

[00:45:46] Speaker 04:
Okay, and the date on that is May 20, 2021.

[00:45:49] Speaker 04:
So this is happening in between the trial.

[00:45:50] Speaker 04:
This is happening.

[00:45:51] Speaker 04:
We filed this during the trial.

[00:45:53] Speaker 00:
Understood.

[00:45:54] Speaker 04:
Okay, so this is not something that happened months before.

[00:45:56] Speaker 04:
So this is happening now.

[00:45:58] Speaker 04:
What I point out to you, Judge, is that if you go to 2588,

[00:46:07] Speaker 04:
This is Dr. Dusharme, the other side's expert, and there is a paragraph that's highlighted in gray, and this is what he says.

[00:46:16] Speaker 04:
He says, so, I mean, I could imagine a scenario where I don't know for what purpose

[00:46:23] Speaker 04:
you could design and identifying arithmetic or logical operation using a combination of logical operators, that would select the pixels of zero.

[00:46:32] Speaker 04:
It doesn't make any sense to me, but the patent teaches that the designer has the ability to combine these operators and still meet the limitation.

[00:46:41] Speaker 04:
And so that's where we quote him.

[00:46:44] Speaker 04:
And then on the next page, I ask him, well, he says,

[00:46:54] Speaker 04:
I said, and I'm only talking about input pixels having red, and my question is, for the accused products, what was the value of red that determined whether you selected certain input pixels and didn't select any other pixels?

[00:47:09] Speaker 04:
And he says, in the accused products, it was a value greater than zero.

[00:47:13] Speaker 04:
So he says, slightest red, that's the logic that he came up with.

[00:47:16] Speaker 04:
Now, you know, Jack Chen raised an interesting point that

[00:47:22] Speaker 04:
This is a wonky patent and it says different things in different places.

[00:47:26] Speaker 04:
Fine.

[00:47:27] Speaker 04:
If we have these preferred embodiments with six logical conditions and the district court doesn't want that to be limited, then make that the definition in the first place.

[00:47:37] Speaker 04:
Then we can invalidate the patent easily.

[00:47:40] Speaker 04:
Don't make it hard for us to invalidate and easy for them to say we infringed.

[00:47:46] Speaker 04:
That's fine.

[00:47:47] Speaker 04:
If there is so much chaos in the patent, then let's make that the definition so we can work with the same definition for invalidity and infringement.

[00:47:55] Speaker 06:
But at the trial, we have... Where did you say that... Where did you preserve that in the trial where you said, okay, we need... No.

[00:48:03] Speaker 06:
We need to be able to make our invalidity case now and we need to do that through your so-called secret construction, but you're not letting us do that.

[00:48:14] Speaker 04:
That was a strategic decision where we stuck with the definition that we believe was right for invalidity.

[00:48:21] Speaker 04:
So we didn't make that objection because, you know, the art is chosen well in advance of the trial and the expert reports are submitted in advance of the trial and we're bound by what's in the expert report.

[00:48:31] Speaker 04:
So we couldn't, we didn't have the ability to spin on a dime, but we kept appealing it as I just showed Judge Cunningham.

[00:48:43] Speaker 05:
Thank you, Your Honors.