[00:00:00] Speaker 02:
Next case is Next Step 8 versus Comcast Cable Communications LLC.

[00:00:08] Speaker 02:
Mr. Andre?

[00:00:10] Speaker 02:
So you have reserved time for rebuttal.

[00:00:31] Speaker 02:
Councillor Andre.

[00:00:35] Speaker 01:
May it please the court.

[00:00:35] Speaker 01:
Good morning, Your Honours.

[00:00:39] Speaker 01:
Expert testimony both in direct examination and cross-examination.

[00:00:44] Speaker 01:
Fact witnesses both in depositions and in live testimony and cross-examination.

[00:00:50] Speaker 01:
Technical documents, source code, and videotapes.

[00:00:53] Speaker 01:
So that was the substantial evidence that supported the jury to rely on for a document equivalent finding in this case.

[00:01:02] Speaker 01:
Most of that evidence was completely ignored in the analysis of the District Court for returning the jury's verdict.

[00:01:10] Speaker 02:
The District Court focused on... But it recognized that the jury had sufficient evidence, didn't it?

[00:01:17] Speaker 01:
It did.

[00:01:17] Speaker 01:
It had sufficient, it had central evidence, but they had no way to do analysis.

[00:01:23] Speaker 01:
Instead, it based its analysis on one very small subset, Dr. Selker,

[00:01:28] Speaker 01:
next expert's testimony.

[00:01:31] Speaker 01:
And that's the last 15, 20 minutes of his testimony that lasted well over two hours.

[00:01:38] Speaker 01:
And why Dr. Selhor talked about that?

[00:01:41] Speaker 04:
Just to be clear, most of that testimony was about literal entrenchment, right?

[00:01:45] Speaker 04:
That's correct.

[00:01:46] Speaker 04:
A common problem in entrenchment testimony with a POE tag along.

[00:01:52] Speaker 01:
And I think where the district court got it wrong was the scope of the doctrine of equivalence in this case.

[00:02:00] Speaker 01:
This was a very, very narrow doctrine of equivalence argument, and very simple.

[00:02:05] Speaker 01:
It was not a very complex case with respect to doctrine of equivalence.

[00:02:10] Speaker 01:
In the lower court, what Tom Katz's position was, was that it took more than one bud push, a lot of bud pushes.

[00:02:18] Speaker 01:
That was not a single action.

[00:02:21] Speaker 01:
That's what it comes down to.

[00:02:22] Speaker 01:
And for the court to look at the claim language, which is responsive to a single action performed by a user.

[00:02:29] Speaker 01:
That's all that was under the doctrine of equivalence.

[00:02:32] Speaker 01:
Responsive to a single action performed by a user.

[00:02:36] Speaker 01:
So Comcast tradition below was there's more than one button push.

[00:02:41] Speaker 01:
It's not single action.

[00:02:43] Speaker 04:
Succeeded on that, right?

[00:02:45] Speaker 01:
With the jury.

[00:02:46] Speaker 01:
Well, and I'm under the doctrine of equivalence.

[00:02:48] Speaker 01:
No, I'm literal.

[00:02:49] Speaker 01:
I'm literal, yes.

[00:02:51] Speaker 01:
And so what Dr. Suffer talked about was you multiple button pushers, and that's equivalent to a single action.

[00:02:58] Speaker 01:
Equated to throwing a baseball.

[00:03:00] Speaker 01:
I would equate it more like dialing a phone.

[00:03:02] Speaker 01:
As soon as I make a phone call.

[00:03:03] Speaker 01:
You make a phone call, that's a single action.

[00:03:05] Speaker 01:
You may push seven numbers with the local number, or 11 numbers with this long distance.

[00:03:09] Speaker 01:
It's still a single action.

[00:03:11] Speaker 01:
So that's how simple this doctrine of equivalence argument was.

[00:03:15] Speaker 01:
And the district court focused on the following steps, the troubleshooting steps, saying he didn't link that to the troubleshooting steps of the next part of the claim, though, which is under literal.

[00:03:28] Speaker 01:
Literal infringement was not an issue.

[00:03:29] Speaker 01:
This is doctrine of equivalence.

[00:03:30] Speaker 01:
So only that one very specific element is all that's under the focus of district courts, JMOL, and this appeal.

[00:03:41] Speaker 00:
The my understanding of the district court judges concern at least one real concern with the DOE presentation below is that what Dr. Selker needed to do

[00:03:55] Speaker 00:
when making the doctrine of equivalence presentation was to now accept the premise that all of those four or five different individual steps are not just steps that amount to a single action, but in fact each of those individual steps is an action to itself.

[00:04:15] Speaker 00:
And now Dr. Sulker needed to explain to the jury why it can be so that

[00:04:21] Speaker 00:
four or five different individual actions can somehow be considered insubstantially different from a single action, which is the term that's used in the claim.

[00:04:32] Speaker 00:
So why are a multiplicity of actions equivalent to a single action?

[00:04:37] Speaker 00:
And that was the concern that he didn't see any so-called particularized testimony and linking argument to making that presentation.

[00:04:46] Speaker 00:
So the concern was there wasn't

[00:04:48] Speaker 00:
really an adequate adjustment in now talking about a new theory of infringement, doctrinal equivalence, why now accepting the fact that some of the things that maybe he said the jury wouldn't accept, about four or five steps amounting to a single action, why if they're all individual actions, why that can still, under the doctrinal equivalence, be a single action.

[00:05:12] Speaker 00:
So what I just explained there is obviously very subtle, but there's a very real, significant, important purpose behind the rule of particularized testimony and linking argument for doctrinal equivalence purposes.

[00:05:27] Speaker 00:
And I think it's because we need to ensure that the plaintiffs are making it clear to the fact finder how your new theory of infringement is different from the former theory of infringement.

[00:05:39] Speaker 00:
So could you explain why it is you think the district court got it wrong when he concluded that.

[00:05:49] Speaker 00:
There wasn't a sufficient adequate presentation of the new theory above and beyond, you know, making the adjustment away from the former literal infringement theory.

[00:06:01] Speaker 01:
And to be clear, the district court didn't articulate nearly as clearly as you did.

[00:06:06] Speaker 01:
Okay.

[00:06:07] Speaker 01:
It was very vague.

[00:06:07] Speaker 01:
At least there was no linking argument.

[00:06:10] Speaker 01:
Now, what Dr. Stepford talked about was, it could be multiple steps to comprise a single action.

[00:06:17] Speaker 01:
So, when he talked about multiple steps, he used baseball analysis.

[00:06:21] Speaker 01:
You pick up the baseball, you put your arm back, you throw it.

[00:06:24] Speaker 01:
Those are multiple steps, but they still be equivalent to a single action.

[00:06:27] Speaker 01:
So, he used the word steps instead of multiple actions.

[00:06:30] Speaker 01:
But, once again, this is a very simple concept.

[00:06:35] Speaker 01:
of a if picking up a phone or a device and pressing three times as opposed to one time is that equivalent to a single action no one disputes if you push it one time it's a single action if you push it three times could that be a single action as well so and i think once again this goes back to the focus of relying only on dr seppler's testimony

[00:06:59] Speaker 01:
There was an abundance of evidence because this was a very simple concept, a lay person concept.

[00:07:06] Speaker 01:
This is not something that requires the expert testimony involved in some of the software cases or hardware cases that this court has seen.

[00:07:17] Speaker 04:
Is the baseball analogy what Selker used?

[00:07:20] Speaker 04:
It was.

[00:07:20] Speaker 04:
Right.

[00:07:21] Speaker 04:
So one way, perhaps, of following up on what Judge Chen said might be this.

[00:07:28] Speaker 04:
Tell me what you think about it.

[00:07:31] Speaker 04:
With the baseball analogy, there may be a number of steps, but the ball gets released just once.

[00:07:38] Speaker 04:
What's going on here, and kind of the point of this patent claim, is that with one communication,

[00:07:47] Speaker 04:
leaving the user and arriving at the recipient system, a whole lot of things get done that otherwise would take multiple communications.

[00:07:58] Speaker 04:
And so it was incumbent on, and that's what the several pushes and buttons are, right?

[00:08:06] Speaker 04:
There's one that sends a communication and they answer something else.

[00:08:09] Speaker 04:
Another sends another communication.

[00:08:11] Speaker 04:
Is that wrong?

[00:08:11] Speaker 01:
In this instance, what was argued down below was,

[00:08:16] Speaker 01:
Logging onto your phone first, logging onto the device was one step.

[00:08:20] Speaker 01:
Once you got to the actual application, the app, the Comcast app that was responsible for this, it was one button push.

[00:08:27] Speaker 01:
It was a single button.

[00:08:29] Speaker 01:
Their defense was, and we put a nice chart in our table on page nine of the fly brief, what they said was, there was a, start the My Account app, log on if necessary, and then you push the button.

[00:08:44] Speaker 01:
So they said, logging on to the, this was the evidence they put for the jury, logging on to the app was the single action.

[00:08:54] Speaker 04:
Right.

[00:08:54] Speaker 04:
But that's still a communication that goes from user to somebody who then has to recognize it and say, okay, you may proceed.

[00:09:02] Speaker 01:
It's like logging onto your phone, like a Facebook page.

[00:09:07] Speaker 01:
It just logs onto the page, and now you open the page itself for your own personal protection.

[00:09:13] Speaker 01:
Then when you communicate with the backend servers, which is the next step of the troubleshooting steps, that's when you push the button that says, My Assistant.

[00:09:23] Speaker 01:
And then that one single button push, that one single action was enough.

[00:09:27] Speaker 01:
But the reason we put adoption of equivalence in for that one very, very simple phrase was, even if at the very least, even if you count logging on and then pushing the button, that's still equivalent to a single action.

[00:09:43] Speaker 01:
So that's where it comes down to.

[00:09:47] Speaker 01:
Judge Shin, when you look at the totality of the evidence in this case, I think that's key here.

[00:09:56] Speaker 01:
Because even if you don't credit Dr. Selkow with a linking argument, there are other linking arguments.

[00:10:02] Speaker 01:
This is not that complex.

[00:10:04] Speaker 01:
The simplicity of this makes this case stand out from other cases.

[00:10:09] Speaker 01:
The jury had evidence that they could have done their own linking ordnance, that they could have figured out on their own, because this was such a simple concept, we should have videotaped what Dr. Zucker did of someone using the app.

[00:10:21] Speaker 01:
This is from CONCAST's website.

[00:10:22] Speaker 01:
This is how you do it.

[00:10:24] Speaker 01:
We had technical documents.

[00:10:26] Speaker 01:
We had the cross-examination.

[00:10:27] Speaker 01:
You saw the cross-examination of the director, Dr. Billesignore.

[00:10:32] Speaker 01:
When we said, push one button, that's a single action.

[00:10:35] Speaker 01:
That's a single action, that's correct.

[00:10:37] Speaker 01:
So what the real rub came down to was, is logging on to the app, potentially logging on your phone, opening the app itself, and just push a button, opening the app.

[00:10:51] Speaker 01:
You're not communicating with the server.

[00:10:52] Speaker 01:
You're not doing any activity at that point.

[00:10:54] Speaker 01:
That's just getting the phone or your app ready to go.

[00:10:58] Speaker 02:
So I think that's the... Can you really want to damage those issues?

[00:11:03] Speaker 01:
Yeah, so the damage issue, the district court determined that the doublet was grand because the expert just willy-nilly came up 50% as initial starting point.

[00:11:15] Speaker 01:
That just wasn't the case.

[00:11:17] Speaker 01:
The damage expert relied on a considerable amount of factual basis for the case to get to the 50%.

[00:11:24] Speaker 01:
There was a basis as a starting point.

[00:11:26] Speaker 01:
He went through the complete analysis

[00:11:29] Speaker 01:
of the size of parties, the importance of it, the cost savings of not having the truck rolls go out.

[00:11:37] Speaker 01:
And he went through a very, very detailed analysis as to where the parties would start the negotiations.

[00:11:43] Speaker 01:
So he started at 50-50.

[00:11:44] Speaker 01:
He said that would be a starting point.

[00:11:47] Speaker 04:
Just for clarification alone, I don't know whether it makes a difference.

[00:11:53] Speaker 04:
Did this 50-50 starting point, does that

[00:11:57] Speaker 04:
before any consideration of the particulars of the parties, or is there some consideration of the particulars before that?

[00:12:05] Speaker 04:
Again, I'm not sure that makes a difference, but I'd like to know.

[00:12:08] Speaker 01:
It was after.

[00:12:08] Speaker 01:
It was after you looked at who the parties are, the importance of technology, the cost savings amount.

[00:12:14] Speaker 01:
It was a very extensive fact-based analysis of the scope of the case.

[00:12:21] Speaker 02:
He didn't have a starting point, a numerical starting point, and then as a result of the analysis, landed at 50-50.

[00:12:28] Speaker 02:
Seemed like he was 50-50 out of the air.

[00:12:32] Speaker 01:
He had no starting point at all.

[00:12:34] Speaker 01:
He did the analysis first, and then after he finished his analysis, he got to 50-50.

[00:12:39] Speaker 01:
Then he did the georgian circuit factors and reduced it down to 60-40.

[00:12:43] Speaker 01:
So he did a factual analysis to get to 50-50 first.

[00:12:46] Speaker 01:
So he had a basis.

[00:12:47] Speaker 01:
It wasn't just him saying, because that's a good starting point, 50-50.

[00:12:52] Speaker 01:
It wasn't arbitrary.

[00:12:54] Speaker 01:
It was something that he actually had thought about.

[00:12:56] Speaker 01:
He determined that based on the parties.

[00:12:59] Speaker 04:
You don't agree that just saying, in the absence of any information, a good starting point

[00:13:08] Speaker 04:
would be 50-50, but that's wrong.

[00:13:10] Speaker 01:
And he didn't say that.

[00:13:11] Speaker 01:
Okay.

[00:13:12] Speaker 01:
To be clear, he didn't.

[00:13:13] Speaker 04:
No, but your position is not that there's something wrong with that.

[00:13:16] Speaker 01:
No, I'm just saying in this particular instance... We certainly haven't held that.

[00:13:20] Speaker 01:
No, exactly.

[00:13:22] Speaker 01:
You can start anywhere you want to start, but in this particular instance, he had a well-founded foundation to start at 50-50, and then made justice from there.

[00:13:31] Speaker 01:
I'll reserve the rest of the time.

[00:13:41] Speaker 03:
where this case should begin and end with the issues of non-infringement.

[00:13:45] Speaker 03:
On the doctrine of equivalence, I think Judge Shen has put his finger on the fundamental starting problem of this analysis.

[00:13:52] Speaker 03:
There isn't this argument in the alternative.

[00:13:54] Speaker 03:
There isn't the clear identification of what steps are being compared.

[00:13:59] Speaker 03:
And so as a result, you have testimony that's never grappling with the fact that the multiple button presses are spaced out in time,

[00:14:08] Speaker 03:
The screen is changing between them.

[00:14:10] Speaker 03:
There are multiple user decisions and different paths.

[00:14:13] Speaker 04:
Is there communication between those pushes between the user and some responder?

[00:14:20] Speaker 04:
Yes, we believe there is in the sense of when you first... I mean a responder off the device.

[00:14:29] Speaker 03:
In that there's communication when you first open the app, there's communication.

[00:14:36] Speaker 03:
to the cloud.

[00:14:37] Speaker 03:
And then there's additional communication as you're going through the further steps.

[00:14:43] Speaker 03:
So I think that's another issue that's not being grappled with.

[00:14:47] Speaker 00:
And then the attempt to... So just to be super clear, every time the user clicks on a button, presses a button,

[00:14:56] Speaker 00:
he or she is then interacting with the cloud each time because the cloud is responding with a, say, a new page and you can see on the screen?

[00:15:06] Speaker 03:
Yes, yes.

[00:15:07] Speaker 03:
That's how it's working.

[00:15:08] Speaker 03:
And on that new page, there are different decisions that can be made, the user can go in different paths.

[00:15:14] Speaker 02:
So there's no question here that the same results are sent in and the same result occurs?

[00:15:21] Speaker 03:
No, I would disagree.

[00:15:24] Speaker 03:
Dr. Selger's result testimony, the result prong, was, as the district court correctly recognized, untethered from the claim.

[00:15:33] Speaker 03:
His result prong was, this will fix your problem.

[00:15:37] Speaker 03:
This will refresh it.

[00:15:46] Speaker 03:
The result here is that it's responsive to a single action.

[00:15:52] Speaker 03:
for particular troubleshooting steps have to take.

[00:15:56] Speaker 03:
So you can't come in and say, oh, we wanted to focus on just the single action and isolation.

[00:16:00] Speaker 03:
You really can't have a function or result analysis here without tying it together to what's flowing out of that.

[00:16:11] Speaker 03:
And the testimony on that, I mean, you're hearing an argument here about sort of one path they were arguing about the Xfinity assistant.

[00:16:21] Speaker 03:
But the testimony, for example, on determining a support center, at Appendix 437, that's talking about a different path when you're coming in through selecting your devices.

[00:16:32] Speaker 03:
And then the testimony on that, on Appendix 438 and 439,

[00:16:36] Speaker 03:
The theory of determining a support center there is you're getting a different URL when you go to refresh your device.

[00:16:45] Speaker 00:
Aside from the single action question, the jury found that these different flows perform all these steps of the claim, right?

[00:16:58] Speaker 03:
Well, the jury found no, literally.

[00:17:02] Speaker 03:
And that's a black box jury.

[00:17:04] Speaker 03:
There was a jury ruling under the doctrine of equivalence, but I think this is a classic example like this court warned in Lear or Siegel, where when you don't have the proper, particularized testimony and linking argument, the jury's just put it.

[00:17:19] Speaker 03:
Right.

[00:17:20] Speaker 00:
But the Doctor of Equivalence case really boiled down to the single action question.

[00:17:25] Speaker 00:
That's the lone thing that the plaintiff presented for purposes of Doctor of Equivalence.

[00:17:32] Speaker 00:
It was just that limitation.

[00:17:33] Speaker 03:
Right.

[00:17:33] Speaker 03:
And my point is, if you're doing a function-way result analysis of the single action, you can't immediately talk about the function of that and the result of that without showing the connection between the single action

[00:17:49] Speaker 03:
and what's coming out of that.

[00:17:50] Speaker 03:
And so then you'd be grappling with meaningful differences, like troubleshooting steps that are happening even under their theory at different points of time.

[00:17:58] Speaker 03:
One click is communicating, and maybe that's when the buffering is happening.

[00:18:02] Speaker 00:
What if we were to assume that here's how the jury understood everything?

[00:18:08] Speaker 00:
The jury listened to all of Dr. Selker's testimony and everybody else's testimony and concluded that Xfinity assistant and a diagnostic check and all of that

[00:18:18] Speaker 00:
It literally infringes this claim and other claims, except for its single action question.

[00:18:26] Speaker 00:
But on the single action question, we think that this multitude of steps that a user does is the equivalent of a single action.

[00:18:36] Speaker 00:
And that's how we should understand the jury's line of thinking here.

[00:18:42] Speaker 00:
And so then the question boils down to, OK,

[00:18:45] Speaker 00:
Did the plaintiff put on enough of a case, under our rules of doctrinal equivalence, to actually create a fact question that can properly go to the jury on that?

[00:18:59] Speaker 03:
If you're thinking about it in those terms, the answer to the last question is no, it didn't.

[00:19:06] Speaker 03:
It puts on a case where its testimony on the function is, I say that's the same function.

[00:19:12] Speaker 03:
It's as conclusive as it can get.

[00:19:15] Speaker 03:
The testimony on the way isn't really even talking about the way that it's done.

[00:19:20] Speaker 03:
It's not grappling with trying to explain why multiple button presses is the same.

[00:19:25] Speaker 03:
The testimony of the result is taking aim at the wrong person.

[00:19:28] Speaker 00:
And what we're hearing from the opposing counsel today is there are times, or there can be times, where the facts are so straightforward, non-complex,

[00:19:42] Speaker 00:
Maybe you don't need to put on a big new presentation for purposes of doctrine of equivalence for the jury to think about and understand what's at stake on this particular fact question of equivalence for a given limitation.

[00:19:59] Speaker 00:
In light of everything that's been presented before, certainly in the context of literal infringement, but nevertheless, they had a whole body of testimony to hear exactly how these products operate and

[00:20:11] Speaker 00:
And they understood what was at stake in terms of the single user action in the claim.

[00:20:15] Speaker 03:
Right, but it's not a matter of putting on a fake presentation.

[00:20:18] Speaker 03:
It really is the substance of it.

[00:20:20] Speaker 03:
There are ways that this could be done efficiently at trial where the expert is giving a particular testimony and linking argument that is actually connecting up.

[00:20:29] Speaker 03:
But if you think of the Malta case cited on page 39 of the Red Group,

[00:20:34] Speaker 03:
That was handbells, right, for use in church and schools.

[00:20:39] Speaker 03:
Far simpler technology than we're even talking about here.

[00:20:42] Speaker 03:
But there, when the expert came in and basically said, well, these function like the claimed buttons that you needed to have in the handbells.

[00:20:50] Speaker 03:
That was inadequate.

[00:20:52] Speaker 03:
And this court said the jury's left to nothing but its own imagination to try to fill in the gaps.

[00:20:58] Speaker 03:
So we have even civil technology there.

[00:21:00] Speaker 02:
And remember, as I said, in this case, there was evidence.

[00:21:04] Speaker 02:
I mean, the jury was one left to its own imagination.

[00:21:08] Speaker 03:
Well, I'm not sure.

[00:21:10] Speaker 03:
I mean, the evidence here for the doctrine of equivalence testimony

[00:21:17] Speaker 03:
didn't answer these questions of the jury, right?

[00:21:19] Speaker 03:
Saying, I say that's the same function.

[00:21:21] Speaker 02:
It didn't answer the question of result.

[00:21:25] Speaker 03:
It didn't.

[00:21:25] Speaker 03:
I mean, function, way, and result.

[00:21:27] Speaker 03:
All the testimony.

[00:21:28] Speaker 03:
Function, pure conclusory, I say that's the same function.

[00:21:32] Speaker 03:
That alone would kill them.

[00:21:34] Speaker 03:
On the way testimony, that's the testimony of the district court having fairly characterized it as the word satellite.

[00:21:40] Speaker 03:
And if you look at that paragraph, it isn't

[00:21:44] Speaker 03:
grappling really with the issue of way.

[00:21:47] Speaker 03:
It's at the very high level saying you're not having to input information or you're not down in the machine room inputting information.

[00:21:54] Speaker 03:
That's not saying, okay, now here we have multiple presses.

[00:21:58] Speaker 03:
I mean, the second you get to a second button press, it's 100% increase.

[00:22:02] Speaker 03:
We're not talking about some case where you have a tolerance that you've changed by 5%.

[00:22:06] Speaker 03:
It's a giant change.

[00:22:08] Speaker 03:
And in this case, for all of these elements to match up with what they're hearing in literal infringement,

[00:22:14] Speaker 03:
You're deep into it.

[00:22:16] Speaker 03:
You're talking about five-button presses in that scenario.

[00:22:21] Speaker 03:
that this isn't something where the jury is given that evidence.

[00:22:26] Speaker 03:
And as this court just affirmed last month with the LSI of the Intel case, there's a reason we have these requirements.

[00:22:33] Speaker 03:
The doctrine of equivalence is the exception.

[00:22:36] Speaker 03:
And this court has long required the particularized testimony and the linking argument to make sure that it stays capped properly.

[00:22:46] Speaker 03:
And I think to dispense with that,

[00:22:49] Speaker 03:
in this case, really runs against that whole body of precedent, and even in cases with far simpler technology.

[00:22:57] Speaker 03:
Just to complete that thought on the technology, because they have positioned this in the function and the results, it's really not as simple as they're talking about.

[00:23:07] Speaker 03:
I mean, what you're talking about is flowing out of this is the communication with the home gateway that's causing a bunch of things to happen in the cloud.

[00:23:15] Speaker 03:
And so to have an expert

[00:23:18] Speaker 03:
who is connecting that up so the jury can understand as opposed to just sort of drawing the inferences from one screen changing into another.

[00:23:27] Speaker 03:
So we think that the decision is absolutely correct on doctrine of equivalence.

[00:23:32] Speaker 03:
If you affirm on that, then you don't need to reach the damages issue or the conditional cross appeal on section 101.

[00:23:40] Speaker 03:
And so I'm happy to address any of these issues.

[00:23:43] Speaker 03:
On damages, I think that the thing I would emphasize is

[00:23:47] Speaker 03:
What you're hearing here is taking a lot of testimony that was about the Georgia-Pacific factors, and about whether you go up or down from a starting point, and repurposing that to try to justify the starting point that came out of nowhere.

[00:24:04] Speaker 03:
And the single most telling thing, this is 9410 of the appendix, when our expert called out, he said, the starting point's coming out of nowhere, there's no support for this.

[00:24:15] Speaker 03:
The response was, absent any other evidence, 50-50 is the logical starting point.

[00:24:23] Speaker 04:
What's wrong with that?

[00:24:24] Speaker 04:
I genuinely do not understand what's wrong with that.

[00:24:29] Speaker 04:
If you have some identified incremental benefits of working together, if you literally have no other information, but you're going to consider a wealth of information,

[00:24:46] Speaker 04:
I've got no reason except to start in the middle.

[00:24:49] Speaker 04:
And now I'm going to figure out how far off the middle to go.

[00:24:54] Speaker 04:
Forget about Georgia-Pacific.

[00:24:55] Speaker 04:
I mean, all kinds of facts that make that.

[00:24:58] Speaker 04:
We haven't said that.

[00:25:00] Speaker 04:
Vernetics doesn't say that.

[00:25:02] Speaker 04:
Vernetics was about you can't use the conclusion of Nash's theorem without establishing the premises.

[00:25:08] Speaker 03:
Right, but I would switch your mind.

[00:25:10] Speaker 03:
This is worse than Vernetics because Vernetics, at least, it's tapping into a broader theoretical framework.

[00:25:16] Speaker 03:
for why this would be the starting point.

[00:25:19] Speaker 03:
And here, it's essentially the Nash bargaining solution without any theory

[00:25:24] Speaker 04:
No, the point about the Nash bargaining solution was that it said this is kind of a result that we are going to get to on the set of premises, like any mathematical theorem, that are the premises of the theorem.

[00:25:39] Speaker 04:
This is just saying we've done an elaborate analysis to get to the stage of identifying the incremental benefits that would be somehow or other shared

[00:25:51] Speaker 04:
by the two parties, the patent owner and the licensee in the hypothetical negotiation.

[00:25:56] Speaker 04:
Now we're going to think about how we're going to share it.

[00:25:58] Speaker 04:
And rather than having an undisciplined analysis, we're going to say, we'll start.

[00:26:05] Speaker 04:
Let's assume we don't know anything about them.

[00:26:08] Speaker 04:
So it's in the middle of the table now.

[00:26:11] Speaker 04:
We're going to share it equally.

[00:26:14] Speaker 04:
And now we're going to consider, oh, one is tremendously powerful in terms of bargaining power, and one is not.

[00:26:21] Speaker 04:
One has all kinds of other alternatives where the alternatives have been considered before.

[00:26:27] Speaker 04:
I just don't understand what's wrong with saying, when you don't know anything about the division of the tie, start by assuming it'll be equal.

[00:26:36] Speaker 03:
So when you don't know anything about the division, they really aren't carrying the burden on apportionment here, because the base is being determined based on the cost savings of essentially whenever a customer problem is being fixed.

[00:26:51] Speaker 03:
And there's no attempt in this analysis to then apportion that and say, well, how is that attributable to this specific patent, this specific way of doing it,

[00:27:03] Speaker 04:
with the single action as opposed to something else.

[00:27:16] Speaker 04:
damages analysis, and you've gotten to the stage of identifying the incremental benefits attributable to apportionment to the use of the patent.

[00:27:27] Speaker 03:
There's no apportionment analysis there.

[00:27:29] Speaker 03:
So they went right from, this is the base, and his assumption from the base is just, if your problem's fixed, then you've avoided the truck rolls and the other bit.

[00:27:40] Speaker 03:
It hasn't said tied that to this particular way of fixing the problem as opposed to some other automated troubleshooting or multiple actions.

[00:27:50] Speaker 04:
This doesn't sound like a 50-50 question.

[00:27:53] Speaker 04:
This sounds like there just hasn't been a comparison to non-controversial things.

[00:27:59] Speaker 03:
So then that space is filled, right?

[00:28:01] Speaker 03:
Then they come in and the next step in analysis is to say 50-50 is the starting point.

[00:28:08] Speaker 03:
So what I'm saying is

[00:28:10] Speaker 03:
Maybe there are worlds where, if you have apportioned properly, you could get to 50-50 as a starting point.

[00:28:18] Speaker 03:
But to say, what's wrong with that absent any other evidence?

[00:28:22] Speaker 03:
To just start with 50-50, the absent any other evidence is going to mean, and would have meant in this context, that you're skipping the apportionment analysis.

[00:28:30] Speaker 03:
And so you're having a danger of really inflated royalty awards that are going past that analysis.

[00:28:48] Speaker 01:
Thank you, Your Honor.

[00:28:52] Speaker 01:
Thank you.

[00:28:54] Speaker 01:
Going back to the damages question, that was never the apportionment issue was never before the district court.

[00:29:02] Speaker 01:
The cost savings is exactly apportioned to what was the expert determine what would be the cost savings to the party by using this invention.

[00:29:12] Speaker 01:
So it definitely tied to the footprint of the invention already.

[00:29:15] Speaker 01:
So Portia was already there when they called Sam's analysis.

[00:29:18] Speaker 01:
So it was there before the district court, but just for the record.

[00:29:22] Speaker 01:
But how he got to 50-50 was through a very case-specific analysis.

[00:29:27] Speaker 01:
So he actually went above and beyond, which just wasn't arbitrary.

[00:29:32] Speaker 01:
And so I just wanted to make that clear for the record.

[00:29:35] Speaker 01:
Also for the record, there's no evidence, there's nothing in evidence of record regarding cloud communications during the first or second button pushes.

[00:29:44] Speaker 01:
That was just not in the case.

[00:29:47] Speaker 01:
It just literally came down to the simplicity as

[00:29:51] Speaker 01:
One single action required only a single button push.

[00:29:56] Speaker 01:
Their argument, you'll see it in the cross-examination of their witnesses, their experts, and their faculty.

[00:30:01] Speaker 02:
And would you say that that's the DOE issue that's been formed?

[00:30:04] Speaker 01:
That's it.

[00:30:05] Speaker 01:
It's just the tapping.

[00:30:06] Speaker 01:
It's just the tapping.

[00:30:07] Speaker 01:
And the function we resolve, we put it into expert testimony, but also it is abundant.

[00:30:13] Speaker 01:
how this is done through the record.

[00:30:17] Speaker 01:
It's there through the testimony of fact witnesses, their expert, our expert.

[00:30:23] Speaker 01:
Their expert actually used the word single action.

[00:30:26] Speaker 01:
He said, yeah, that would be a single action.

[00:30:27] Speaker 01:
It's just one button push.

[00:30:29] Speaker 01:
he actually says that cross-examination, because you have to log on, of course, in that exact single-action realm.

[00:30:34] Speaker 01:
So there was abundant evidence.

[00:30:36] Speaker 04:
And there is... Just to be clear, I guess I just want to be sure.

[00:30:41] Speaker 04:
You said that there is not evidence in the record describing a particular aspect of the accused method, the aspect being whether

[00:30:53] Speaker 04:
In the sequence of buttons, the more than one button pushes, there is a communication, I'm just going to call it the cloud, but outside the home, north of the network.

[00:31:09] Speaker 04:
With each button, the record doesn't establish that?

[00:31:13] Speaker 01:
Not my memory.

[00:31:14] Speaker 01:
What the whole defense was in this case,

[00:31:18] Speaker 01:
was if you had to push more than one button with more than a single action, it's multiple actions.

[00:31:24] Speaker 01:
That's the whole defense.

[00:31:26] Speaker 01:
very limited purpose.

[00:31:28] Speaker 01:
So in this particular case, there is an abundance of evidence that shows that as simple as this technology was, Judge Chin got it right, and what the jury could have relied on was they understood what was going on here, and that one single, very narrow component of single action performed by the user was a user's action.

[00:31:54] Speaker 01:
Let's turn to further questions.

[00:31:56] Speaker 02:
Thank you, Your Honor.

[00:31:57] Speaker 02:
Appreciate it.

[00:31:59] Speaker 02:
Yes.

[00:31:59] Speaker 02:
So do we have a minute left for your... Right.

[00:32:02] Speaker 03:
Just very quickly, you don't need to reach the cross appeal if you affirm on deal 09, but if the claims are being stretched to the point where we're talking about multiple actions here, then we really are talking about just taking the steps a user would have been doing in terms of

[00:32:20] Speaker 03:
looking at the serial number, conveying this information, and saying automate that.

[00:32:24] Speaker 03:
So the more they're stretching this, the worse the section 101 case.

[00:32:31] Speaker 02:
Thank you.