[00:00:00] Speaker 02:
Our next case is Zircon Corporation versus the ITC.

[00:00:05] Speaker 02:
And Black and Decker and Stanley Black and Decker has intervened on it.

[00:00:12] Speaker 02:
2022, 1649.

[00:00:14] Speaker 02:
Mr. Hutchins.

[00:00:17] Speaker 03:
Thank you, and good morning, Your Honor, and may it please the court.

[00:00:20] Speaker 03:
I'd like to discuss DI and time-willing some patent and validity issues, and we'll rely on our briefing for any other issues.

[00:00:28] Speaker 03:
With respect to DI and specifically apportioning expenses to the DI products, we submit the commission made two errors.

[00:00:36] Speaker 03:
First, the commission erred in adopting an inflexible rule that per se disallows proof of investments collectively for products covered by various of the asserted patents in an overlapping fashion where the overlap is less than 100%.

[00:00:52] Speaker 03:
The commission's prior decision in DRAMs, the 242 investigation, allowed the complainant to prove a domestic industry by demonstrating investment collectively in a series of products.

[00:01:03] Speaker 03:
Now, in that case, it was DRAMs of various sizes.

[00:01:08] Speaker 03:
Even though each patent in that case did not cover each size of DRAM, but because of the substantial overlap among the patent coverage and products, the commission held that there was a DI proven

[00:01:23] Speaker 03:
even though the evidence was not broken down by the individual sizes of DRAM.

[00:01:28] Speaker 03:
Here, we submit the Commission likewise should have considered the amount of overlap

[00:01:32] Speaker 03:
and taken the flexible approach of the DRAMs case instead of propounding a rule that would cause a complainant's evidence of DI to fail whenever a single product in the aggregation was covered by less than all of the asserted patents.

[00:01:46] Speaker 01:
Show me where the commission adopted the rigid rule that you say and you've just tried to articulate.

[00:01:55] Speaker 03:
When the commission stated that our aggregation was improper because it covered

[00:02:02] Speaker 03:
products collectively, where not all of the products were covered by all of the patents.

[00:02:08] Speaker 03:
And when the commission further stated, and I take issue with their description of the record, but when the commission further stated that they had to reject the DI aggregation because they could not tell whether one of the excluded products for one of the patents accounted for 90%

[00:02:32] Speaker 03:
of the revenue or 10% or vice versa.

[00:02:36] Speaker 03:
In other words, that it couldn't tell whether any of the excluded products would have had such a high allocation that it would prevent any of the three patents from having a DI that could have been significant.

[00:02:51] Speaker 03:
That logic would apply to the case, for instance, where you have a complainant that has 50 DI products and the complainant asserts

[00:03:02] Speaker 03:
that all 50 products are covered by all asserted patents, and they aggregate their DI evidence accordingly.

[00:03:10] Speaker 03:
Everyone in the court here would agree today that if that supposition were true and all of the asserted patents actually covered all of the DI products, that's an appropriate aggregation.

[00:03:25] Speaker 03:
But assume the ALJ determines for whatever reason that one of those products isn't covered by one of the patents.

[00:03:32] Speaker 03:
And a different one of those products isn't covered by a different product.

[00:03:37] Speaker 03:
The patents don't quite overlap.

[00:03:40] Speaker 03:
Under the logic of the commission's decision here, that DI evidence would be thrown out as irrelevant, because the commission couldn't know whether the absent product, whether it was this product for this patent or this different product for this other patent, had such a high allocation

[00:03:58] Speaker 03:
that it would have prevented a DI for any of the individual patents.

[00:04:04] Speaker 02:
Council, at appendix page 6, the commission said of the 57 products, only 14 practice all three of the patents.

[00:04:19] Speaker 02:
14 practicing all three of the patents means something.

[00:04:25] Speaker 02:
You're not particularly arguing that.

[00:04:29] Speaker 03:
Well, so we don't disagree, by the way, with the Venn diagram that's included in A60.

[00:04:38] Speaker 03:
We have three DI products.

[00:04:40] Speaker 03:
Excuse me.

[00:04:41] Speaker 03:
For the three patents, there are 14 products that cover all three.

[00:04:45] Speaker 03:
For the 771 and the 185 patents, the overlap is much more significant.

[00:04:50] Speaker 03:
It's more than 2 thirds overlap.

[00:04:54] Speaker 03:
We submit that the commission should have undertaken to determine

[00:04:59] Speaker 03:
whether that overlap was significant enough for either of those under the DRAMs case to treat it as effectively one product, which is what the DRAMs case did with the various sizes of DRAMs.

[00:05:11] Speaker 03:
I'll also say this importantly.

[00:05:14] Speaker 03:
The commission should have, if it were going to what we say is a diversion from the DRAMs case, looked to the underlying product by product, year by year data, which absolutely was in the record.

[00:05:28] Speaker 03:
look at whether the sum of the revenues for the products that cover the 771 patent specifically, the DI products that cover the 185 patent specifically, the products that cover the 662 patent specifically.

[00:05:43] Speaker 03:
On a product-by-product basis, it was in the record which products are covered by which patents.

[00:05:48] Speaker 03:
And for every single individual DI product in Complainants Exhibit 28C, there was a spreadsheet that listed

[00:05:57] Speaker 03:
what the revenues were per year, per product.

[00:06:00] Speaker 03:
So if the court were going to institute a rule that we submit is more stringent than DRAM suggests, it should have looked to the data.

[00:06:10] Speaker 03:
Because it doesn't take an expert, I would submit, to simply add the revenues.

[00:06:15] Speaker 03:
If it's determined that these 30 of the 50 products are covered by one patent.

[00:06:20] Speaker 00:
Did you argue the case that way to either the ALJ or to the commission?

[00:06:26] Speaker 00:
So focusing on the specific product by product revenues?

[00:06:33] Speaker 03:
So to the ALJ, the aggregation was done for the DI products in its entirety.

[00:06:42] Speaker 03:
If you were to look at the experts aggregation, the expert did not sum the products in that fashion.

[00:06:53] Speaker 03:
The underlying data, that spreadsheet that I just referenced, the 28C exhibit, was cited repeatedly to the commission during the appeal.

[00:07:03] Speaker 00:
Did you make the specific, explicit argument, though, even to the commission, that they should focus on each product, or they should focus on a particular product and look at the sales for that particular product?

[00:07:21] Speaker 03:
What I can say is we

[00:07:23] Speaker 03:
provided the data to the commission.

[00:07:25] Speaker 03:
And we pointed out to the commission that you can determine from that data any aggregation you want.

[00:07:34] Speaker 03:
The best sites I could provide you.

[00:07:35] Speaker 00:
We've all seen in large how sizable the records are in commission cases.

[00:07:40] Speaker 00:
And indeed, we have a pretty substantial portion of that here.

[00:07:46] Speaker 00:
So I'm not sure that you can expect the commission to have gone through the record

[00:07:53] Speaker 00:
with the kind of specificity that you're talking about if you're not actually making the argument that that's the focus of your contention, even setting aside the question of whether you raised it to the ALJ.

[00:08:05] Speaker 03:
The best sites I can give you to the commission would be at A4423 and 4432, but it's cited throughout the discussion.

[00:08:13] Speaker 00:
I'll note that- What was the citation to that?

[00:08:17] Speaker 03:
4423 and 4432.

[00:08:19] Speaker 03:
All right.

[00:08:22] Speaker 03:
And I'll note that, for instance, in the laser barcode scanners case, the court, after it had done its DI analysis, the court recognized that the technical prong only ended up being met for one claim of one patent.

[00:08:39] Speaker 03:
There the commission went back on its own to look at the underlying data, to come to a conclusion that there was DI for that

[00:08:51] Speaker 03:
lesser subset of what had been argued before, which would alleviate some of the unfairness or a trap for the unwary for the complainant, who is no complainant can present all permutations that are possible if they have a lot of DI products.

[00:09:10] Speaker 02:
Counsel, we don't have to deal with this issue at all, do we?

[00:09:14] Speaker 02:
because you've got obviousness invalidations and you're apparently not arguing those and you're relying on your briefs.

[00:09:24] Speaker 02:
But in fact, we don't have to deal with the economic issue, do we?

[00:09:29] Speaker 03:
Either would be an independent ground.

[00:09:30] Speaker 03:
So we have to win on DI and we have to win for each of the patents on the obviousness.

[00:09:36] Speaker 03:
With respect to the 662 patent, the auto recalibration patent,

[00:09:41] Speaker 03:
Our argument is that the Commission erred by accepting a ruling of obviousness that we suggest was based on improper hindsight reconstruction.

[00:09:54] Speaker 03:
One, we submit that the secondary references are not in the field of the patent based on the description of the field and the patent itself and the scope of the claims, but also the manner in which calibration is done, for instance, in the German application.

[00:10:11] Speaker 03:
is not in the same way as the auto recalibration that they're trying to create in Steber, which is the moving stud sensor.

[00:10:21] Speaker 03:
Because in the German application, it's a stationary sensor on a tank or a silo that's holding liquid or grain, for instance, and you do an initial calibration.

[00:10:33] Speaker 03:
You empty the tank completely, you fill the tank completely, then the calibration is set

[00:10:39] Speaker 03:
for the remainder of the normal operation of the sensor.

[00:10:44] Speaker 03:
That's not a recalibration.

[00:10:46] Speaker 03:
That's simply a calibration that's done.

[00:10:49] Speaker 03:
And that description in the application is paragraphs 86 and 87 at A17338.

[00:10:55] Speaker 03:
That single initial calibration is not an automatic recalibration we submit.

[00:11:03] Speaker 03:
So that even if you were to apply this learning process of emptying a tank and filling a tank,

[00:11:09] Speaker 03:
it would not be an improvement in the same way.

[00:11:13] Speaker 03:
Similarly for Miller, which explicitly cannot and does not detect studs, it would not be an improvement in the same way.

[00:11:21] Speaker 03:
And Miller was before the patent office.

[00:11:25] Speaker 02:
So you're into your battle time.

[00:11:27] Speaker 02:
You can either use it or continue as you choose.

[00:11:30] Speaker 03:
I'll continue just to make one small point with respect to validity on the other two patents, the 771 and 185.

[00:11:39] Speaker 03:
We submit that simply by looking at the product, the prior Zircon 1 product in the record, which can be seen at A17814, you will see the vertical elongated indentations on either side, which hold the thumb vertically

[00:11:57] Speaker 03:
And it's always shown in the manual as being held vertically and you have multiple fingers on the other side in the indentation, which that, in our view, would prevent there being an axis of rotation because on neither side do you have a single point.

[00:12:11] Speaker 03:
The axis is an imaginary line with points on either side.

[00:12:15] Speaker 03:
In neither instance, because the thumb is held vertically and it's against the wall, and because you have multiple fingers on the other side, you do not have that single point for an axis of rotation.

[00:12:25] Speaker 03:
And we submit that the prior reference in that respect speaks for itself.

[00:12:30] Speaker 03:
And so your honors can simply look at the reference and come to a conclusion as to whether it's anticipating the axis of rotation claim.

[00:12:39] Speaker 03:
Thank you very much.

[00:12:43] Speaker 02:
Mr. Richards for commission.

[00:12:58] Speaker 05:
Thank you, Your Honor.

[00:12:58] Speaker 05:
Your Honors, may it please the Court.

[00:13:01] Speaker 05:
This is an investigation where the Commission's no violation determination is an unremarkable application of settled law.

[00:13:08] Speaker 05:
to evidence and it should be affirmed for two independent reasons.

[00:13:12] Speaker 05:
The first reason as you've touched on sort of at length already is the domestic industry issue.

[00:13:17] Speaker 05:
There are three asserted patents in this case.

[00:13:20] Speaker 05:
The domestic industry has to be shown as to each of them and by statutory requirement it has to be relating to articles protected by the patent.

[00:13:29] Speaker 02:
If they had proceeded only with respect to one patent

[00:13:34] Speaker 02:
wouldn't they have approved the domestic industry?

[00:13:39] Speaker 05:
We don't know the answer to that, Your Honor.

[00:13:41] Speaker 05:
That is precisely the nub of the Commission's opinion.

[00:13:44] Speaker 05:
It's that the evidence before it isn't sufficient for it to make the significance analysis.

[00:13:50] Speaker 00:
I will note that the former prior Commission opinions would suggest the answer to that would be yes, not assuming that the group of products was a tightly related group.

[00:14:03] Speaker 05:
if the group of products are articles that are protected by the patent, and there was a single patented issue, then the approach of relying on those articles and investments of them, that would be an appropriate approach.

[00:14:17] Speaker 05:
I do want to go ahead and launch into some responses to the points we just heard.

[00:14:20] Speaker 05:
The first is about the DRAMS case.

[00:14:22] Speaker 05:
Importantly, I think what's been missed here, DRAMS applied the pre-1988 version of the tariff act.

[00:14:31] Speaker 05:
The significance is there, the 1988 Amendments to the Tariff Act is when the language, articles protected by the patent, was put into the statute.

[00:14:39] Speaker 05:
The Commission sort of alluded to this in their opinion when it noted it wasn't sure that the pre-1987 decision in DRAMs was really applicable here.

[00:14:49] Speaker 05:
But even if it was, they did actually go ahead and make the finding that there wasn't substantial overlap here.

[00:14:55] Speaker 05:
versus what was the factual situation in DRAMs where you had different DRAM chips essentially of eight kilobytes, 16 kilobytes, 32 kilobytes.

[00:15:06] Speaker 05:
Those were the groupings.

[00:15:07] Speaker 05:
By contrast, it pointed again to that Venn diagram and said, here, 53 products total, but the overlap for all the patents is only 14 of those products.

[00:15:18] Speaker 05:
And it said, that's not substantial overlap.

[00:15:21] Speaker 05:
So I think the DRAMs reliance sort of fails for two different reasons.

[00:15:25] Speaker 05:
There's no support for the substantial overlap factually.

[00:15:28] Speaker 05:
Legally, there's no indication that the Commission in 1987 was applying language from an amendment that wasn't going to exist for another year.

[00:15:36] Speaker 01:
One of the arguments, and maybe you're about to come to it, is that the Commission applied a very rigid rule, a very narrow interpretation of what needs to be shown in order to prove domestic industry when there's some degree of overlap in the products and the patents.

[00:15:51] Speaker 01:
Did the Commission in fact do that?

[00:15:53] Speaker 05:
No, Your Honor.

[00:15:55] Speaker 05:
The Commission has been clear that there are many ways that a DI can be proved.

[00:15:59] Speaker 05:
I'll also point out the suggestion that this case is where the rule that was applied here was laid out isn't correct.

[00:16:06] Speaker 05:
When my research goes back at least to 2004 in the Commission's digital analog converters case, that was the one where the Commission said because complainant is asserting the 928 patent and the 501 patent,

[00:16:19] Speaker 05:
and the articles that practice said patents don't overlap, complain it must demonstrate the existence of two domestic industries.

[00:16:26] Speaker 01:
So when you said this is a straightforward application of settled law, did you mean commission decisions?

[00:16:32] Speaker 05:
Yes.

[00:16:32] Speaker 01:
Do we have any federal circuit cases on this point?

[00:16:35] Speaker 05:
Well, I'll note, Your Honor, this particular exact fact situation I haven't seen in a Federal Circuit case.

[00:16:41] Speaker 05:
I think the closest one you can find will be the interdigital opinion, which states repeatedly that the art of the domestic industry has to be relating to articles that practice the patent.

[00:16:54] Speaker 05:
That's really the guiding light here behind the Commission's opinion, and for good reason, because that is the statutory language that it cannot abandon.

[00:17:02] Speaker 01:
We haven't adopted the patent by patent requirement in any decision of ours, is that right?

[00:17:08] Speaker 05:
No, and I need to be very careful.

[00:17:10] Speaker 05:
The Commission has not said, and it is not the Commission's position, that there has to be a patent by patent allocation in every case.

[00:17:19] Speaker 05:
The Commission will accept articles.

[00:17:21] Speaker 05:
an article by article allocation where appropriate.

[00:17:25] Speaker 05:
It will accept a patent by patent allocation if that's the way the complainants want to prove their case.

[00:17:31] Speaker 01:
It could be article by article as well.

[00:17:33] Speaker 05:
Right.

[00:17:33] Speaker 05:
And in that situation, the way you'd get to the articles that are protected by the patent portion of the statute is by showing the articles are protected by the patent.

[00:17:41] Speaker 02:
But didn't the commission conclude that 14 products practice all three patents?

[00:17:48] Speaker 05:
That's correct, Your Honor.

[00:17:50] Speaker 05:
But that's not enough.

[00:17:51] Speaker 02:
The problem is... What, you need 15 or 20?

[00:17:54] Speaker 05:
No, no, it's not simply the number.

[00:17:57] Speaker 05:
Wouldn't one do it?

[00:17:58] Speaker 05:
I'm sorry?

[00:17:59] Speaker 05:
Wouldn't one do it?

[00:18:00] Speaker 05:
Absolutely.

[00:18:02] Speaker 05:
One product could be enough if there's evidence presented in the record showing that the investments in that one product are significant and substantial, and assuming that that product is protected by the patent.

[00:18:16] Speaker 05:
That's what's missing here.

[00:18:18] Speaker 05:
Instead of getting the information so that we could suss out

[00:18:22] Speaker 05:
how much was invested in the products that are protected by each patent, we got it aggregated.

[00:18:27] Speaker 00:
Alastair Hutchins says that the materials before the commission, at least, and I guess it was before the ALJ, broke these numbers down by product.

[00:18:41] Speaker 05:
So I'll make a couple points.

[00:18:42] Speaker 05:
I respectfully disagree with my friend about that.

[00:18:45] Speaker 00:
You disagree that there was anything in the record that had that kind of breakdown, or you disagree that that's a sufficient basis for

[00:18:52] Speaker 00:
is getting relief.

[00:18:53] Speaker 05:
No, I disagree about what was presented to the ALJ and what was presented to the commission.

[00:18:57] Speaker 00:
Okay.

[00:18:58] Speaker 05:
I'll note first the reference to appendix 4423 and 4432.

[00:19:02] Speaker 05:
I attempted to look up at council's table, but neither of those are in the appendix.

[00:19:08] Speaker 05:
I checked with intervenors council as well, so I can't comment on those because they weren't designated in the appendix.

[00:19:13] Speaker 00:
Well, the fact that they're not in the appendix doesn't mean they're not in the record.

[00:19:17] Speaker 05:
Well, I can go on beyond that.

[00:19:19] Speaker 00:
Let's see.

[00:19:21] Speaker 00:
Can you answer the question that he raises, which is, was the breakdown type evidence before the commission?

[00:19:30] Speaker 00:
Was there evidence from which the commission, if it had gotten out its pencil, could have added up the numbers and come to a conclusion with respect to the particular products, let's say, that were within the middle of the Venn diagram?

[00:19:43] Speaker 05:
I submit no, Your Honor.

[00:19:44] Speaker 05:
The two things I'm aware of that are in the record

[00:19:47] Speaker 05:
There is this declaration from Mr. Bork.

[00:19:51] Speaker 05:
That is not substantive evidence.

[00:19:53] Speaker 05:
It was never admitted as evidence.

[00:19:55] Speaker 05:
In fact, it was the subject of a motion in Lemonade, which Zircon represented to the ALJ that it would not rely on it as substantive evidence.

[00:20:04] Speaker 00:
Disregard Bork.

[00:20:05] Speaker 00:
What I'm really going for is, is there a spreadsheet or some equivalent in which, had the commission dived in, you can

[00:20:17] Speaker 00:
You can query whether the commission had an obligation to dive in if it wasn't specifically briefed to them.

[00:20:21] Speaker 00:
But the commission could have elicited the information necessary to establish that, let's say, those 14 products, all of which were covered by all the patents, constituted a domestic industry for purposes of the statute.

[00:20:38] Speaker 05:
No.

[00:20:39] Speaker 05:
And may I explain?

[00:20:40] Speaker 05:
Yes.

[00:20:40] Speaker 05:
I want to make sure my representation is correct.

[00:20:44] Speaker 05:
I have dove in into the record.

[00:20:45] Speaker 05:
I know the spreadsheets that we are talking about.

[00:20:48] Speaker 05:
It is not so clear as comparing the list of product names to these spreadsheets.

[00:20:54] Speaker 05:
I didn't see the product names in the columns.

[00:20:56] Speaker 05:
There are a lot of numbers about expenditures, but to the extent the assertion is that they are readily discernible without any testimony explaining how to do this calculation, I disagree with that.

[00:21:08] Speaker 05:
And the second point I wanted to make is the commission, as opposed to myself preparing for this argument,

[00:21:14] Speaker 05:
was never pointed to those and asked to do that.

[00:21:17] Speaker 05:
So whether the commission could have done it, it was never even asked to.

[00:21:21] Speaker 01:
Does those responses cover what counsel is referring to as 28C?

[00:21:27] Speaker 05:
I'm sorry.

[00:21:28] Speaker 05:
I didn't catch the reference to 28C.

[00:21:29] Speaker 05:
I'm afraid I did.

[00:21:30] Speaker 01:
I thought that's what counsel was referring to, which I took to be some exhibit that he contends is in the record.

[00:21:35] Speaker 01:
I don't know if he means the administrative record or the evidentiary record.

[00:21:39] Speaker 05:
I apologize, Your Honor.

[00:21:40] Speaker 05:
I'm not sure what the reference to 28C is.

[00:21:44] Speaker 05:
If I may, oh, I'm sorry.

[00:21:45] Speaker 05:
I see my time has expired.

[00:21:47] Speaker 05:
Yes, that's what happens when one divides one's time.

[00:21:50] Speaker 05:
Yes, indeed.

[00:21:52] Speaker 05:
Your Honors, absent more questions, I'll see you ahead and sit down.

[00:21:55] Speaker 02:
Thank you.

[00:21:57] Speaker 02:
Mr. Collins.

[00:22:07] Speaker 04:
Thank you.

[00:22:07] Speaker 04:
Your Honors, may it please the Court

[00:22:09] Speaker 04:
I guess I'll start off with clearing up some of the confusion on Exhibit 28C.

[00:22:12] Speaker 04:
Exhibit 28C, CX28, it's in the record at 6564.

[00:22:18] Speaker 04:
It's a summary chart of revenue.

[00:22:22] Speaker 04:
So using a revenue chart is the wrong thing here because what's trying to be identified is the allocation of expenses, investments in the DI products

[00:22:31] Speaker 04:
to determine whether those investments are significant and substantial.

[00:22:36] Speaker 04:
What's missing is a chart showing the investments, the expenses on a product by product thing.

[00:22:41] Speaker 04:
So saying that there's revenue charts that someone at the commission could have taken a calculator out and done all the addition, that doesn't get you anywhere anyway, because this is not about the investment expenses.

[00:22:52] Speaker 04:
So that chart does not really push the needle at all.

[00:22:55] Speaker 01:
Is 28C in the evidentiary record in any event?

[00:22:59] Speaker 01:
Do you know?

[00:23:00] Speaker 04:
Honestly off the top of my head I'm not sure.

[00:23:03] Speaker 04:
It was in the appendix.

[00:23:04] Speaker 04:
That I know, but I'm not sure.

[00:23:05] Speaker 04:
And I know we have issues about what is not in the evidentiary record.

[00:23:09] Speaker 04:
But I just want to make it clear, no confusion, revenue and expenses, not the same thing.

[00:23:15] Speaker 04:
The second point, I think, Judge Stark, you asked about, they asked him where in the record was a rigid rule identified.

[00:23:23] Speaker 04:
And the answer is it's not.

[00:23:25] Speaker 04:
If you look at the commission's opinion on pages 61 and 62,

[00:23:29] Speaker 04:
They actually go through other cases that had similar situations with multiple patents, multiple products, and they said you could have grabbed one product or one group of products that practice all three patents and told us what the investments were for that group of products, which I guess the analogy being with their 14 products in the middle, and they said Zircon didn't do that.

[00:23:50] Speaker 04:
They also pointed out cases where you have investments traced to products

[00:23:55] Speaker 04:
different groups that reach out to different patents and they said you didn't do that one either so they kind of wrote a little treatise on how to approach these multi patent cases and they basically the lesson out of it is the complainant is pretty free to organize its evidence as long as you can take the products the expenses for the products and trace them back in some meaningful way to determine whether there's an investment for the patent

[00:24:21] Speaker 04:
uh... and that's the problem is when you want all the numbers together as they said we can't tell if it's ninety ten one way ten or ninety the other and we can't make a qualitative analysis and i don't think there's any expectation the commission should be the one point of the calculator for that one of the rest obviousness absolutely but if i had like one more point of domestic industry there is a federal circuit case i think is relevant and worth reading and it's the john metzling with case and that is on page nineteen of our brief

[00:24:50] Speaker 04:
And it's not directly on point, but it's pretty close.

[00:24:53] Speaker 04:
It's a case where utility patents and design patents were involved.

[00:24:57] Speaker 04:
And they said the complainant had failed because they had the burden of proof on the allocation of issue.

[00:25:03] Speaker 04:
And they did not identify how much of its investment in research and development related to the design patent protected by the 539 design patent, as opposed to the 509 family more generally.

[00:25:14] Speaker 04:
So that is a case where this court has looked at it and said, if you get multiple patents, you really do need to split this out.

[00:25:21] Speaker 04:
In this case, it was more about how much R&D did you do on design patent ornamentation, as opposed to your other patents, which is quite analogous to here.

[00:25:29] Speaker 04:
How much R&D or investment or work did you do on auto recalibration versus the others?

[00:25:35] Speaker 00:
Let me ask you, if you're moving on now to the patent, let's focus on the 771 patent claims 13 through 15.

[00:25:44] Speaker 00:
Which the ALJ and then ultimately the commission said was not proved up because of the failure to establish the means plus function sufficient, not sufficient evidence on means plus function is the way I think I read that.

[00:25:57] Speaker 04:
Yes.

[00:25:58] Speaker 00:
There's a stipulation as to what the gripping means means.

[00:26:03] Speaker 00:
Correct.

[00:26:04] Speaker 00:
And there is an answer to question 90 that Mr. Delman gives.

[00:26:09] Speaker 00:
And I can't see any breathing room between the two.

[00:26:14] Speaker 00:
uh... the stipulation says gripping means is a means plus function structure as a pair of concave finger holes position at opposite sides of the grip is disclosed in the specification and equivalence there too and he testifies in his answer each of the stanley products has a grip located on their housing designed for a user to hold the tools the grips are comprised of two recessed three-dimensional depressions located at opposite sides of in curving inward from the surface of their housing

[00:26:44] Speaker 00:
which serves as features for fingers to hold.

[00:26:48] Speaker 00:
Isn't that saying exactly what the stipulation says that claim limitation means?

[00:26:55] Speaker 04:
No, because the stipulation also included all the citations to all the disclosure in the specification of the drawings.

[00:27:02] Speaker 04:
In my understanding of the way ALJ was saying, what you didn't do is go into the specification.

[00:27:07] Speaker 04:
And if you look at the specification, they're very, how would I say these kind of, they're very dented.

[00:27:13] Speaker 04:
finger holds.

[00:27:14] Speaker 04:
They're really almost shaped like the tip of a finger.

[00:27:17] Speaker 04:
And what you didn't do is you didn't go into the specification and compare from that point.

[00:27:20] Speaker 00:
None of this appears in the ALJ's opinion, which is very short on this point.

[00:27:24] Speaker 04:
Right.

[00:27:25] Speaker 00:
This is all coming from you as attorney argument, as far as I can see.

[00:27:30] Speaker 04:
And what I would say is what the ALJ did is he faulted both parties on that front because the Zircon 1 also had very similar finger holds.

[00:27:39] Speaker 04:
that you can put two fingers into.

[00:27:41] Speaker 00:
And that may well be.

[00:27:43] Speaker 00:
And we can talk about whether, if you lose on this, you're entitled to make an argument that you really should still win on anticipation from Zircon 1.

[00:27:51] Speaker 00:
That is a procedural problem, which it's not entirely clear to me, at least, which is how we would get there.

[00:28:00] Speaker 00:
But as to this language, it is very hard for me to see what the difference is between what

[00:28:10] Speaker 00:
of the dominant saying and what the stipulation is.

[00:28:15] Speaker 00:
Are you saying he needed to put in citations to the specification, which were cited, by the way, on the stipulation?

[00:28:24] Speaker 00:
The stipulation included all the citations.

[00:28:26] Speaker 04:
Right.

[00:28:26] Speaker 04:
The stipulation included references to the figures, references to citations and specifications.

[00:28:31] Speaker 00:
Which is to say that the language of the stipulation is exactly what

[00:28:36] Speaker 00:
the specification is saying.

[00:28:38] Speaker 00:
So that if he is saying what the stipulation is saying, and the stipulation is saying what the specification says, then logically he's saying what the specification is saying.

[00:28:48] Speaker 04:
I think, I believe what the ALJ was saying, he did not compare the corresponding structure.

[00:28:52] Speaker 04:
He didn't roll up his sleeves.

[00:28:54] Speaker 04:
So if you were to look at, for example, the first page of the 771 patent, the very front, APPX is page 136 of the appendix.

[00:29:02] Speaker 04:
And that is a very different finger hold than either the Zircon 1,

[00:29:05] Speaker 04:
It's a very different finger hold from the Stanley product.

[00:29:08] Speaker 04:
And I think what the ALJ is saying is the corresponding structure is this thing that they drew and this thing that they described.

[00:29:15] Speaker 04:
And just reciting things like it has finger holds that you can grip, those words are already in the claim.

[00:29:21] Speaker 04:
He's saying what you didn't do is go in and you agreed upon the cited passage of the specification.

[00:29:26] Speaker 04:
They have meaning.

[00:29:28] Speaker 04:
We didn't feel that it was necessary in the stipulation to repeat all those passages in the stipulation.

[00:29:34] Speaker 04:
The idea was the expert has to go in to do the infringement analysis and look at these drawings and make the comparison, because they're very different.

[00:29:42] Speaker 00:
So let me just ask a question that we alluded to earlier.

[00:29:46] Speaker 00:
There wasn't a cross appeal in this case.

[00:29:49] Speaker 00:
So how do we reach the question of validity, assuming we find that the ALJ and the commission were wrong in their assessment

[00:30:03] Speaker 00:
of the proof on 771, 13 through 15, how do we get to the question of validity?

[00:30:12] Speaker 04:
It's an independent reason for reversal.

[00:30:14] Speaker 04:
Actually, cross appeal would have been inappropriate because it would not have affected the scope or outcome of the judgment.

[00:30:20] Speaker 00:
That's an interesting question because in a district court, you would be dead wrong in making that argument because the scope of relief in validity is broader than the scope of relief

[00:30:33] Speaker 00:
for non-infringement.

[00:30:36] Speaker 00:
Your argument, I take it inferentially, is that in the commission, because the only relief is an exclusion order, that it comes out the same way.

[00:30:45] Speaker 00:
But there's a potential collateral stockholder effect from a judgment on invalidity that would be broader than a judgment on non-infringement.

[00:30:54] Speaker 00:
So why doesn't that require a cross-appeal?

[00:30:59] Speaker 04:
We did look into that extensively and what we found was Federal Circuit cases frowning on this being a cross-appeal issue because it would get you more people strategically used to get more page space and things of that nature and we looked at it and said it's an independent reason to affirm the judgment below.

[00:31:19] Speaker 00:
Any one of those cases an ITC case?

[00:31:22] Speaker 04:
I can double check that.

[00:31:23] Speaker 00:
I can tell you that the law is perfectly clear that if you have

[00:31:27] Speaker 00:
uh... non-infringement and and uh... invalidity you can't go from non-infringement to invalidity without a cross-appeal.

[00:31:35] Speaker 00:
You would agree to that.

[00:31:37] Speaker 04:
No, I would because these turn on the same issue.

[00:31:42] Speaker 00:
Setting aside ITC cases, you don't agree with that in the context of the district court that you can lose on uh...

[00:31:52] Speaker 00:
uh... invalidity win on non-infringement and then in the court of appeals you get to come back without a cross-appeal and argue invalidity.

[00:32:00] Speaker 04:
I believe in the district court you're right.

[00:32:02] Speaker 04:
I believe that's right because the judgment says the patent is invalid.

[00:32:06] Speaker 04:
I misunderstood.

[00:32:07] Speaker 04:
Oh yeah, I believe you're right about that.

[00:32:09] Speaker 00:
So you have a commission case that stands for the proposition that in that setting you don't need to cross-appeal.

[00:32:15] Speaker 04:
I am looking in my brief.

[00:32:17] Speaker 04:
I do know I have a footnote on this.

[00:32:18] Speaker 00:
The only thing you cite is the dark case.

[00:32:22] Speaker 04:
I believe that's right.

[00:32:23] Speaker 00:
Right.

[00:32:23] Speaker 00:
And that is a district court case.

[00:32:26] Speaker 00:
And it doesn't stand for the proposition that you are arguing for.

[00:32:31] Speaker 04:
Right.

[00:32:32] Speaker 04:
And what I believe is that we have an independent reason for a firmance simply because of the scope of the judgment below.

[00:32:38] Speaker 01:
Can I take you back real quick to the infringement question?

[00:32:43] Speaker 01:
Have we ever held that in order to prove infringement of a means plus function, you have to

[00:32:51] Speaker 01:
take the extra step of tying the evidence back to the specification.

[00:32:58] Speaker 01:
That is, if you, in sum and substance as an expert, say all the words that would describe an embodiment expressly disclosed in the specification, do you also have to

[00:33:10] Speaker 01:
take that last step and say, and it looks just like figure whatever, or it looks just like the specifically disclosed.

[00:33:18] Speaker 04:
I don't think it has to be like a design patent analysis where you compare the pictures, but you do have to look at the disclosed embodiment.

[00:33:25] Speaker 04:
I think the problem is the words that were in that stipulation were essentially words identifying things that were in the claim, right?

[00:33:32] Speaker 04:
Depressed finger holds, and it's as shown in and described in.

[00:33:36] Speaker 04:
It's a short form for the specific environment that's in the application, which were really designed to hold one finger, as opposed to the products that, both in validity and anticipation, they were large, as he did earlier, multi-finger drips.

[00:33:50] Speaker 04:
And there's no comparison about why the single dent that is designed to hold one finger would be equivalent.

[00:33:56] Speaker 04:
And that's what we're saying is you've got to look at the specific style.

[00:33:59] Speaker 04:
And that's the statute, the corresponding structure and the disclosing specification.

[00:34:03] Speaker 04:
I believe the answer to your question is yes.

[00:34:05] Speaker 02:
Thank you, counsel.

[00:34:05] Speaker 02:
I think we have had your argument.

[00:34:09] Speaker 02:
Mr. Hutchins, take three minutes.

[00:34:13] Speaker 03:
Thank you, your honor.

[00:34:16] Speaker 03:
I'll try to make a few points in reverse order.

[00:34:20] Speaker 03:
It's our position that

[00:34:24] Speaker 03:
there would have had to be a cross-appeal or some sort of contingent cross-appeal raising those other issues that was not made here.

[00:34:31] Speaker 03:
So we think that it would be inappropriate for you to rule on the infringement side to give a remand on the validity side where that has not been appealed.

[00:34:43] Speaker 00:
Not understanding that the judgment in the ITC would be exactly the same, which is no exclusion order.

[00:34:49] Speaker 03:
Correct.

[00:34:50] Speaker 00:
And I'm unaware of- Why would the facts

[00:34:53] Speaker 00:
Why would that not distinguish the ITC case from a district court case where the effect of the decision would be much broader if you have an injunction or a declaratory judgment of invalidity?

[00:35:07] Speaker 03:
Well, so I haven't given thought to that specific question.

[00:35:11] Speaker 03:
All I can say is that I'm unaware of any case making that distinction at the ITC.

[00:35:18] Speaker 03:
All I'm aware of are the cases that would have required a cross-appeal.

[00:35:22] Speaker 03:
And it was not argued here that, as an alternate ground of affirmance, that really, I would submit, wasn't pressed.

[00:35:30] Speaker 03:
All that was said was, if you're going to rule against us on that, let us make the argument down below, rather than arguing to this court here that they should look at that argument and come to their own conclusions on it as an alternate ground to affirm.

[00:35:47] Speaker 03:
At this court, I think that's a little different, which was not done here, rather than simply saying,

[00:35:51] Speaker 03:
Well, let me have another chance below, even though I didn't appeal.

[00:35:56] Speaker 02:
Two quick points in reverse.

[00:35:59] Speaker 03:
I'm sorry?

[00:36:00] Speaker 02:
You want to move on?

[00:36:01] Speaker 02:
Yes, I'm sorry.

[00:36:01] Speaker 03:
Let me move on.

[00:36:05] Speaker 03:
With respect to the means plus function question that Judge Stark raised, we're also unaware of any case specifically requiring magic words that relate back to 112.6 or specific portion of the specification, as opposed to, as you said, in sum and substance.

[00:36:21] Speaker 01:
What about the argument that the finger holds or whatever the term is, they're drawn in one way and no one ever says, that's what I see in the accused products?

[00:36:31] Speaker 03:
This is, I believe, straightforward enough that this is an instance of plainly putting semantics over the substance of the testimony.

[00:36:39] Speaker 03:
If you look at what the testimony was and you look at what the construction was, I think it absolutely is fair to say that there was evidence of the corresponding structure.

[00:36:49] Speaker 03:
It has to be corresponding.

[00:36:51] Speaker 03:
Or equivalent.

[00:36:52] Speaker 03:
Or equivalent, of course.

[00:36:52] Speaker 03:
Yes, of course, Your Honor.

[00:36:54] Speaker 03:
Last point, just to clarify.

[00:36:57] Speaker 03:
Exhibit 28C wasn't the evidentiary record.

[00:37:00] Speaker 03:
It was put in the first day of trial through Mr. Bork's witness statement.

[00:37:04] Speaker 03:
It was cross-examined on during the trial.

[00:37:08] Speaker 03:
And it does provide revenue on a product by product basis.

[00:37:14] Speaker 03:
But here, remember, costs were allocated based on revenue, which is absolutely an appropriate, well-accepted way to allocate costs.

[00:37:25] Speaker 03:
So I respectfully disagree with my brother counsel that you couldn't very readily look at the DI products in that exhibit 28C, which were actually highlighted as such.

[00:37:37] Speaker 03:
On a patent-by-patent basis, simply add up the numbers and you would know the percentage allocation.

[00:37:43] Speaker 03:
unless your honors have any further time.

[00:37:44] Speaker 03:
I appreciate the extra minute.

[00:37:45] Speaker 00:
A quick record related question.

[00:37:48] Speaker 00:
On question 90, there are some references to CPX, and that includes CX.

[00:38:00] Speaker 00:
61C, 62C, 63C, and 64C.

[00:38:04] Speaker 00:
I couldn't find those in the appendix.

[00:38:06] Speaker 00:
Do you know what those are?

[00:38:09] Speaker ?:
One second.

[00:38:16] Speaker 00:
This is a question and answer 90, which is at 14, 451 of the appendix.

[00:38:23] Speaker 03:
Yes.

[00:38:24] Speaker 03:
Those are user manuals.

[00:38:26] Speaker 00:
OK.

[00:38:27] Speaker 00:
That's all I need to know.

[00:38:29] Speaker 00:
Thank you.

[00:38:29] Speaker 03:
Yes.

[00:38:29] Speaker 03:
Well, thank you, Your Honor.

[00:38:30] Speaker 00:
Thank you, counsel.

[00:38:31] Speaker 02:
Case is submitted.