[00:00:00] Speaker 01:
The first case for argument this morning is 23-2057, Cell Trust Corporation versus My Rep Chat.

[00:00:07] Speaker 01:
Mr. Bright, whenever you're ready.

[00:00:10] Speaker 01:
Good morning, Your Honors.

[00:00:12] Speaker 03:
May it please the Court?

[00:00:15] Speaker 03:
I'm Chris Bright on behalf of Plaintiff Appellant Cell Trust, and I will refer to Defendant Appellee as MRC or My Rep Chat.

[00:00:24] Speaker 03:
Very quickly, the cell trust patents that were at issue in this case relate to a new server that receives communications from a virtual number running on an application on a phone and processes them for sending to an electronic discovery system, an EDS, or an enterprise information archiving system, an EIA.

[00:00:45] Speaker 03:
For example,

[00:00:46] Speaker 03:
These could be text messages sent to a regulatory advisor or financial advisor that are subject to regulatory requirements.

[00:00:56] Speaker 03:
Now, there are several legal errors that the district court made.

[00:01:00] Speaker 03:
But I'm going to try to distill them down into two essential legal errors, major issues for this appeal.

[00:01:06] Speaker 03:
The first is claim construction regarding the sending claim term.

[00:01:11] Speaker 03:
And the second is the corroboration requirement

[00:01:14] Speaker 03:
for the alleged prior use testimony by MRC's witness, Mr. Antonoff.

[00:01:22] Speaker 07:
Did you first present this claim construction argument to the court?

[00:01:27] Speaker 07:
I just want to make sure I understand exactly how the claim construction argument may have been teed up below.

[00:01:33] Speaker 03:
Yes.

[00:01:33] Speaker 03:
Understood, Your Honor.

[00:01:36] Speaker 03:
This was an evolving issue during trial.

[00:01:40] Speaker 03:
It was not raised before trial.

[00:01:42] Speaker 03:
And actually, it was an uncertain issue during trial.

[00:01:47] Speaker 03:
And the reason I say that is both sides' experts agree that the sending claim term was not limited to directly sending.

[00:01:56] Speaker 07:
But you're saying that it was never presented as an issue that the district court needed to decide.

[00:02:01] Speaker 07:
Is that what you're indicating?

[00:02:02] Speaker 03:
Before trial.

[00:02:04] Speaker 03:
Before trial, that's correct, Your Honor.

[00:02:05] Speaker 03:
It was not an issue of Markman.

[00:02:07] Speaker 03:
The sending term was one of those terms that had its plain meaning, probably because it just wasn't disputed by defendants.

[00:02:14] Speaker 07:
So when did you present this as a claim construction dispute that you think needed to be decided?

[00:02:20] Speaker 03:
So we certainly, in pre-verdict JMAW briefing, made it very clear, couldn't have been more clear, that the term was not limited to directly sending.

[00:02:30] Speaker 03:
But it also accommodated, as disclosed in the intrinsic evidence, an intermediate server between the accused server and the EDS or EIA.

[00:02:41] Speaker 03:
Now, I want to go back to what I was saying about why it was an evolving issue.

[00:02:45] Speaker 03:
It wasn't even clear that we had, before the jury was charged,

[00:02:49] Speaker 03:
that we had a dispute on infringement on this issue.

[00:02:53] Speaker 03:
And the reason I say that is both sides' experts agreed that there's no directly limitation in the claim language.

[00:03:00] Speaker 03:
And they both agreed that the claim language accommodates an intermediate server.

[00:03:05] Speaker 03:
On the one hand, it was Mr. Colburn on infringement.

[00:03:08] Speaker 03:
On the other hand, it was defendant's witness, Mr. Antonoff, for his invalidity opinions.

[00:03:12] Speaker 03:
And he said it twice.

[00:03:13] Speaker 03:
Mr. Antonoff, he said it on direct examination, and he said it on my cross, because I wanted to be clear.

[00:03:19] Speaker 03:
Are the experts disagreeing on this?

[00:03:22] Speaker 03:
We would have had an O2 micro issue in front of the jury if we had expert disagreement, but we didn't.

[00:03:29] Speaker 07:
What is your JA's support for where there's expert agreement on this issue?

[00:03:33] Speaker 03:
So I would cite, Your Honor, to Appendix 6662.

[00:03:39] Speaker 03:
Appendix 7200 to 7201, and Appendix 7253 to 7254.

[00:03:46] Speaker 03:
What do they say?

[00:03:48] Speaker 01:
Because you don't have enough time to look at all those pages.

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

[00:03:53] Speaker 03:
So I asked Mr. Colburn, who was cell trust expert, I said, do you see directly limitation in the claim?

[00:04:01] Speaker 03:
Defendants objected, actually.

[00:04:03] Speaker 03:
And presumably because they perceived it as a claim construction issue.

[00:04:07] Speaker 03:
district court judge overruled their objection in front of the jury.

[00:04:11] Speaker 03:
This was not a sidebar.

[00:04:12] Speaker 03:
And then he went on to say, essentially, the accused server has to be, the claim server has to be facilitating the communication to the EDS EIA.

[00:04:24] Speaker 03:
So all that taken into context and the way the evidence came in, certainly an intermediate server was not precluded by the claim language.

[00:04:32] Speaker 03:
And then I'll just say, just to answer your question about Mr. Antonoff for the defendants,

[00:04:38] Speaker 03:
He basically said twice, he said, plaintiff's expert said a beautiful thing.

[00:04:43] Speaker 03:
It was interesting, colorful language.

[00:04:44] Speaker 03:
He said a beautiful thing.

[00:04:46] Speaker 03:
There's no directly or direct limitation.

[00:04:49] Speaker 03:
And so it doesn't matter if it goes through intermediate servers.

[00:04:52] Speaker 03:
As long as it ends up at the EDS or EIA, it's true.

[00:04:56] Speaker 01:
So the jury says non-infringed.

[00:04:58] Speaker 01:
Yes.

[00:04:58] Speaker 01:
So without getting a jury instruction by the district court saying it's only directly, it's not indirectly.

[00:05:06] Speaker 01:
So what do you do that?

[00:05:08] Speaker 01:
Your complaint on Jamal is that it's completely against the weight of the evidence because it was infringement.

[00:05:15] Speaker 01:
So we're going to do the infringement thing based on a claim construction that you didn't ask for?

[00:05:22] Speaker 03:
Your Honor, so what happened was the jury, we didn't know this was a dispute on non-infringement.

[00:05:28] Speaker 03:
The first time, because Mr. Antonoff did not give an opinion, the defendant's expert never said, there's no infringement because it's not directly sending, there's an intermediate server.

[00:05:40] Speaker 03:
Never gave that opinion.

[00:05:41] Speaker 01:
So how do we know what the jury did, why they reached a conclusion on our infringement?

[00:05:44] Speaker 03:
It was the only argument that defendants made in closing.

[00:05:49] Speaker 03:
And so that's the first time the jury hears

[00:05:52] Speaker 03:
This is a non-infringement argument.

[00:05:53] Speaker 03:
It's the very first time.

[00:05:54] Speaker 03:
Defendants closing, attorney argument.

[00:05:57] Speaker 03:
Did you make an objection?

[00:05:58] Speaker 03:
Your Honor, there was no objection.

[00:06:00] Speaker 03:
There was no objection in closing.

[00:06:03] Speaker 03:
Frankly, the way that the trial was playing out with the judges overruling the objection in our case in chief that I mentioned earlier,

[00:06:10] Speaker 03:
there was no indication from the district court judge that she would find a direct limitation.

[00:06:17] Speaker 04:
And so is your position that there was no error in

[00:06:23] Speaker 04:
the submission of the case to the jury.

[00:06:25] Speaker 04:
The only error occurred later when she wrote the Jamal opinion?

[00:06:29] Speaker 03:
I would say it was error, because that was the first time the judge told us that there's a direct limitation was post verdict Jamal briefing.

[00:06:37] Speaker 03:
I would say it was error if the judge charged the jury with that view in mind.

[00:06:43] Speaker 04:
But she didn't charge the jury.

[00:06:44] Speaker 04:
There's no objection to anything, and her charge to the jury by you is there.

[00:06:49] Speaker 03:
There is not, because we perceived it as still a plain meaning issue, a plain meaning claim term.

[00:06:56] Speaker 04:
And that's what you're arguing now.

[00:06:57] Speaker 03:
Yes.

[00:06:58] Speaker 03:
And the only evidence that the jury heard was that without a charge from the district court was there's no directly limitation in this claim, and intermediate servers are allowed.

[00:07:10] Speaker 03:
So that's all the evidence the jury had.

[00:07:12] Speaker 03:
So our argument is, even if putting aside whether there was an error in charging the jury,

[00:07:18] Speaker 03:
By construing the claim this way, it's not a weight of the evidence issue.

[00:07:26] Speaker 01:
There was a reason, a need for you to object.

[00:07:29] Speaker 01:
I mean, you said early on this wasn't an O2 micro issue.

[00:07:32] Speaker 01:
Well, maybe it was if you had raised it to the judge and it had come up over an objection, or you would ask for a jury instruction.

[00:07:39] Speaker 03:
Yeah, and we had no notice.

[00:07:42] Speaker 03:
All of that happened before the defendant's closing.

[00:07:45] Speaker 03:
So the evidence went in, jury instructions were begged, and then the closing argument comes in.

[00:07:51] Speaker 07:
But why isn't there a waiver if you didn't object, as Judge Andrews indicated, to the closing?

[00:07:56] Speaker 07:
I know it's unusual to object to a closing, but if you have something you think that's prejudicial happening in the closing, I think the onus is on you to object.

[00:08:04] Speaker 03:
Your Honor.

[00:08:05] Speaker 03:
We thought that with pre-vertic briefing, JMAW briefing, and post-vertic JMAW briefing, that the judge was going to take care of this as a matter of law, because it's a claim construction issue.

[00:08:16] Speaker 03:
And we thought that the judge was going to take care of it.

[00:08:19] Speaker 01:
All right.

[00:08:20] Speaker 01:
Can we move on to corroboration, just because your time is moving forward?

[00:08:23] Speaker 01:
Use of corroboration in the context of this case seems really unusual to me.

[00:08:28] Speaker 01:
Usually we have corroboration come up in completely different contexts, but not in terms of a witness

[00:08:35] Speaker 01:
testifying on obviousness.

[00:08:36] Speaker 01:
And his testimony putting together the obviousness case was quite specific.

[00:08:41] Speaker 01:
So there's one mention at the end about using the devices, and you're using that as a whole basis, corroboration.

[00:08:49] Speaker 01:
I've never seen a case quite like this, to use corroboration against an expert witness who had very fulsome testimony that seemed perfectly appropriate on obviousness.

[00:09:00] Speaker 03:
Understood, Your Honor.

[00:09:02] Speaker 03:
I think that you can see in the case law, I think that the issue of corroboration doesn't, I don't think it comes up often in the obviousness context.

[00:09:12] Speaker 03:
And it's probably even rare that it comes up in the context of obviousness where the factual testimony is coming in from the expert witness.

[00:09:21] Speaker 01:
Yes.

[00:09:21] Speaker 01:
I mean, you say it's rare.

[00:09:22] Speaker 01:
Do we have any cases where it was an expert witness and an obvious deterrent?

[00:09:26] Speaker 03:
I have not seen that, Your Honor.

[00:09:27] Speaker 01:
Maybe defendants have.

[00:09:28] Speaker 01:
Well, maybe there's a reason for that, but I don't know.

[00:09:30] Speaker 03:
Yes, Your Honor, understood.

[00:09:32] Speaker 03:
And so yes, so we were, both sides were bringing together other case law to kind of round out the view of corroboration in this area.

[00:09:40] Speaker 03:
What happened at trial was the defendant's expert, Mr. Antonoff, when he testified, he testified there were two bases for his invalidity opinions, obviousness opinions only.

[00:09:55] Speaker 03:
both based on this combination of three Google products.

[00:10:01] Speaker 03:
And there was no documentary evidence that they worked together.

[00:10:06] Speaker 03:
The only documentary evidence in the record was that they didn't all work together.

[00:10:10] Speaker 03:
There were two of those three products that did not integrate with each other, Google Voice and Google Vault.

[00:10:16] Speaker 03:
All this comes out in this cross-examination.

[00:10:19] Speaker 03:
And he admits on cross-examination that he's offered no evidence to the jury to corroborate his personal use.

[00:10:28] Speaker 07:
Can you give us the J8 pages for where you think these submissions lie?

[00:10:32] Speaker 02:
Yes, Your Honor.

[00:10:33] Speaker 02:
Bear with me for one second here.

[00:10:39] Speaker 02:
Let's see.

[00:10:48] Speaker 03:
OK, so the most poignant example, Your Honor, of that admission is at Appendix 7-2-6-0.

[00:10:55] Speaker 01:
Yeah, that's what I'm looking at, because going through the whole testimony, I thought that was the only thing you must be talking about.

[00:11:01] Speaker 01:
And of course, that's preceded by lots of direct testimony about how he arrived at his obvious misdetermination, very routine, very standard.

[00:11:12] Speaker 01:
So here you say, turn to another topic.

[00:11:16] Speaker 01:
You've offered no evidence other than your own testimony of your personal use of Google products, right, sir?

[00:11:23] Speaker 01:
And the answer is, there's plenty of evidence cited in my report that supports my testimony.

[00:11:28] Speaker 01:
And then he said, to this jury, you offered no evidence about your own personal use.

[00:11:34] Speaker 01:
And he says, correct.

[00:11:35] Speaker 01:
That's it.

[00:11:37] Speaker 03:
Your Honor, actually, there were other questions on cross-examination where I went through and rounded it out with, OK, you haven't introduced any Google documents.

[00:11:48] Speaker 03:
You haven't to show this personal use.

[00:11:50] Speaker 03:
You haven't shown any documentation of this system that you say you put together.

[00:11:55] Speaker 03:
Nobody else has testified to this.

[00:11:57] Speaker 03:
And he agreed to all those things.

[00:11:59] Speaker 03:
And that's in our briefing.

[00:12:01] Speaker 03:
I don't have the site at the moment, Your Honor, for all of those record sites.

[00:12:05] Speaker 03:
But he testified around all of that.

[00:12:09] Speaker 03:
The issue with the corroboration here is the way we look at this is we didn't have enough because

[00:12:18] Speaker 03:
Mr. Antonoff didn't come forward with any corroborating evidence, documentary evidence.

[00:12:22] Speaker 03:
There was really no basis to cross-examine him on what that system was.

[00:12:26] Speaker 03:
So then we were left with, OK, there should be at least some constraint on his ability to talk about how those things work together.

[00:12:36] Speaker 07:
Is he testifying in two capacities?

[00:12:39] Speaker 07:
One, in terms of some limited personal knowledge, but also as an expert, is he testifying in those two capacities?

[00:12:45] Speaker 03:
Yes, Your Honor, he was.

[00:12:47] Speaker 07:
So you had a basis to cross-examine him at a bare minimum as an expert.

[00:12:51] Speaker 03:
Yeah, but the core issue was whether those products could actually be combined to work together.

[00:12:57] Speaker 03:
And the only evidence was that they were not, could not.

[00:13:00] Speaker 03:
In fact, the Google Voice and Google Vault couldn't be combined until 2020.

[00:13:04] Speaker 03:
Well, after the 2013 private event.

[00:13:06] Speaker 01:
Did you have testimony about that?

[00:13:08] Speaker 01:
Because I thought your testimony for your expert, Mr. Coburn, was very, very, very fit.

[00:13:14] Speaker 01:
We said, if you put the code in front of you, would you be able to read it in any language?

[00:13:18] Speaker 01:
Again, probably not.

[00:13:19] Speaker 01:
I'm an executive at this point.

[00:13:22] Speaker 01:
Can we agree you don't know for certain how data communications were sent?

[00:13:26] Speaker 01:
Blah, blah, blah.

[00:13:27] Speaker 01:
I've not looked at the customers and how they have integrated.

[00:13:30] Speaker 01:
So the answer is true.

[00:13:31] Speaker 01:
You just don't know.

[00:13:33] Speaker 01:
I don't know.

[00:13:34] Speaker 03:
That's your testimony.

[00:13:35] Speaker 03:
And I do have, actually, testimony to cite to you from cross-examination of Mr. Antonoff.

[00:13:40] Speaker 03:
And it's at appendix 7234.

[00:13:43] Speaker 03:
to 7-2-3-5.

[00:13:45] Speaker 03:
And this was a cross-examination where the judge had to admonish him to answer questions straightforward.

[00:13:54] Speaker 03:
And here he admits, yes, Google Vault and Google Voice did not work together until 2020.

[00:14:02] Speaker 03:
So whatever he did in terms of personal use must have been, if we are to believe him, some alteration of how those products could work together.

[00:14:12] Speaker 01:
There's nothing else on that point.

[00:14:13] Speaker 01:
Your time's almost up.

[00:14:14] Speaker 01:
And I just have a kind of a technical question.

[00:14:17] Speaker 01:
This is about, and I think you raised it in your brief, the court's judgment talked about patents and not the claims.

[00:14:26] Speaker 03:
Yes, Your Honor.

[00:14:27] Speaker 01:
OK, did you go back to the district court and ask for clarification or some fix?

[00:14:34] Speaker 03:
Your Honor, I don't believe we did.

[00:14:37] Speaker 03:
We filed the notice of appeal timely, and we included this issue in there, and we understood this court

[00:14:46] Speaker 03:
could render a judgment to confirm that not all the claims were visited on the district court.

[00:14:55] Speaker 01:
In your view, what is it necessary that we do in order to remedy this?

[00:15:01] Speaker 03:
Your Honor, I think that the record's clear.

[00:15:04] Speaker 03:
I mean, obviously, it could be clear with a statement from this court.

[00:15:08] Speaker 03:
And I see my time is up.

[00:15:09] Speaker 03:
I'm going to have to rest on our briefs on the Section 101 issue.

[00:15:13] Speaker 06:
Yeah, let me just ask you one quick question.

[00:15:16] Speaker 06:
Did you get your question answered?

[00:15:17] Speaker 06:
No, I'd like to.

[00:15:18] Speaker 01:
Well, you follow up on it.

[00:15:20] Speaker 06:
I can't.

[00:15:22] Speaker 06:
I was going to.

[00:15:22] Speaker 01:
What do you want us to do?

[00:15:23] Speaker 01:
Do you think it's sufficient for us to say in an opinion and drop a footnote and say, hey, by the way, the district court got it wrong?

[00:15:31] Speaker 01:
I think that's sufficient.

[00:15:32] Speaker 01:
I mean, it's not a substantive error.

[00:15:35] Speaker 01:
It's harmless.

[00:15:36] Speaker 01:
It's just a technical point.

[00:15:39] Speaker 03:
Thank you, Your Honor.

[00:15:41] Speaker 07:
The only other question I have for you is, you have potentially a pending motion for judicial notice?

[00:15:46] Speaker 03:
Yes.

[00:15:47] Speaker 07:
What effect of anything would that motion have on this case?

[00:15:50] Speaker 07:
Do we actually need to decide that?

[00:15:52] Speaker 03:
I don't think that it's necessary to reach the conclusions we're asking for, the relief we're asking for.

[00:16:03] Speaker 03:
But it is certainly informative record evidence, intrinsic evidence, with respect to a number of issues that we pointed out.

[00:16:10] Speaker 03:
But as I said, Your Honor, it doesn't affect anything here.

[00:16:12] Speaker 01:
So it's essentially moot.

[00:16:13] Speaker 01:
Would you agree?

[00:16:14] Speaker 01:
I agree, Your Honor.

[00:16:18] Speaker 01:
All right.

[00:16:18] Speaker 01:
Let's hear from the other side, and we'll restore some of your time.

[00:16:27] Speaker 05:
Good morning.

[00:16:28] Speaker 05:
Mr. Lorenz?

[00:16:29] Speaker 05:
Yes.

[00:16:30] Speaker 05:
Good morning.

[00:16:31] Speaker 05:
May it please the court, counsel.

[00:16:34] Speaker 05:
I'm here for the appellee, my rep chat, as well as individuals, Derek and Wade Gerard.

[00:16:39] Speaker 05:
This is a simple appeal.

[00:16:41] Speaker 01:
Can I start you on this sort of, just to clean up this technical issue we have, not on judicial notice, but on the, do you, I don't think Red responded.

[00:16:49] Speaker 01:
to blue on this point, that there does seem to be an error, harmless as it may be, in terms of the district court's judgment order.

[00:16:58] Speaker 01:
Do you agree with that?

[00:17:00] Speaker 05:
I think we did cite a case, the Nuance case, which also refers to the Katz case.

[00:17:05] Speaker 05:
The district court would have the authority to enter judgment on an entire patent when the plaintiff or patent owner has winnowed down its claims voluntarily throughout the case.

[00:17:16] Speaker 05:
So I think that the district court judge had the authority to.

[00:17:19] Speaker 07:
But you're not disagreeing with us that it's a subset of claims that really should be listed in the judgment, are you?

[00:17:28] Speaker 05:
I would say that's what I would typically expect to see in a judgment.

[00:17:32] Speaker 07:
But you have no issue with us potentially fixing that via a footnote, kind of what Judge Post laid out, right?

[00:17:37] Speaker 05:
Not a hill I'm going to die on.

[00:17:39] Speaker 07:
So you have no issue with it.

[00:17:40] Speaker 07:
I agree it's not a hill you want to die on, but you have no issue with it?

[00:17:43] Speaker 05:
I would just say that the nuance, this issue did arise in nuance.

[00:17:46] Speaker 05:
And the district court judgment was affirmed for the judgment of the entire patent, even though a subset of claims were tried.

[00:17:54] Speaker 01:
So you're asking us to affirm the invalidity of the entire patent beyond the claims that were asserted in this case, really?

[00:18:01] Speaker 05:
I have overstepped.

[00:18:03] Speaker 05:
Not a hill I want to die on.

[00:18:04] Speaker 05:
I will agree with your honors.

[00:18:06] Speaker 01:
Thank you.

[00:18:08] Speaker 01:
So can you talk to us about this so-called plain construction, direct and indirect?

[00:18:12] Speaker 01:
Because it does seem the judge and the J-Mall

[00:18:15] Speaker 01:
Did seem to say, yeah, I think it needs to be direct.

[00:18:21] Speaker 01:
It feels un-infringement because it needs to be direct.

[00:18:24] Speaker 01:
Are you reading it that way, too?

[00:18:27] Speaker 05:
The plain meaning applied to these claims, and the district court in their Jamal decision said just that.

[00:18:35] Speaker 05:
And first of all, a couple of- Yeah, but he said more than that, right?

[00:18:38] Speaker 01:
I mean, he did say that.

[00:18:39] Speaker 01:
You're right.

[00:18:40] Speaker 01:
But didn't he also say, based on the plain meaning of Appendix 19, based on the plain meaning of sending,

[00:18:48] Speaker 01:
and the absence of express directly limitation, the court concludes that these assertive claims are not infringed if an intermediate third party server sender sends communications to the EDS rather than directly to the accused MIRA chat server.

[00:19:02] Speaker 05:
Which is exactly what the plain language of the claims say, because there's an element that talks about a server, so we could have more than one server, receives the communication.

[00:19:11] Speaker 05:
And then the next element is the server.

[00:19:14] Speaker 05:
So we have the same server that received the communication,

[00:19:18] Speaker 05:
is now the server that is configured for sending to an electronic discovery system.

[00:19:24] Speaker 05:
So we have exactly what, going to where.

[00:19:28] Speaker 05:
And what is also on the next page of that appendix, Your Honor, on Appendix 20, is Judge Wright saying this has been disputed the whole case.

[00:19:36] Speaker 05:
So she says this conclusion

[00:19:40] Speaker 05:
Let me read the sentence first.

[00:19:41] Speaker 05:
The court agrees that the claims require direct sending from the My Rep Chat server to the EDS EAIS.

[00:19:59] Speaker 05:
This conclusion is consistent with defendants' position in their non-imprisonment intentions throughout the case.

[00:20:06] Speaker 05:
So this was a disputed issue.

[00:20:09] Speaker 05:
And it's waived.

[00:20:10] Speaker 05:
If there was any sort of claim construction issue that cell trusts wanted to raise, it was incumbent on them to do so before the jury was charged.

[00:20:19] Speaker 05:
And they didn't do it.

[00:20:20] Speaker 05:
In their brief, here, today, we heard an argument that, oh, they didn't hear about this until closing argument.

[00:20:27] Speaker 05:
But in their briefing to the court, the argument was, we preserved it through an oral JMAW motion, which would have predated any sort of closing arguments.

[00:20:37] Speaker 05:
So there's some inconsistency to it.

[00:20:40] Speaker 05:
But when you look at what the district court did, she found exactly what happened, which was this was the disputed limitation.

[00:20:47] Speaker 05:
This was the only non-infringement limitation in dispute in the entire case for the defendants.

[00:20:53] Speaker 05:
And it was the plain meaning.

[00:20:56] Speaker 05:
And Judge Wright construed 13 separate claims.

[00:20:59] Speaker 07:
She construed every claim that- So how are you contending that the

[00:21:03] Speaker 07:
the other party and the courts would have first been on notice that there was an argument you were making under a plain-ordering meeting in terms of direct sending.

[00:21:12] Speaker 07:
When did that first become apparent or should have been apparent to self-dress?

[00:21:19] Speaker 05:
Well, certainly throughout the entire trial.

[00:21:20] Speaker 05:
Is that the earliest it became apparent?

[00:21:25] Speaker 05:
She talks about your non-infringement intentions.

[00:21:28] Speaker 05:
So in the District of Minnesota, we do have a prior art statement and then responsive

[00:21:33] Speaker 05:
infringement contentions.

[00:21:35] Speaker 05:
And there is infringement contentions that dispute that limitation.

[00:21:40] Speaker 05:
The limitations.

[00:21:41] Speaker 07:
Non-infringement contentions that you were?

[00:21:43] Speaker 05:
Yes.

[00:21:44] Speaker 04:
OK.

[00:21:44] Speaker 04:
Yes.

[00:21:44] Speaker 04:
Does the judge have to do anything in response to these non-infringement contentions?

[00:21:49] Speaker 04:
I mean, people have contentions all the time that I, as a district judge, have no idea they're making.

[00:21:54] Speaker 05:
Exactly.

[00:21:54] Speaker 05:
I don't even think they're filed with the court.

[00:21:56] Speaker 05:
They're, you know, a disclosure opportunity for the parties to kind of guide the process.

[00:22:01] Speaker 05:
And why I think that's relevant, Your Honor, is it was incumbent on cell trusts to either raise during claim construction if it felt that there was any sort of issue.

[00:22:11] Speaker 05:
But certainly by the time of trial, to the extent it felt that there was a legal claim construction issue, it was incumbent on them to ask for a construction.

[00:22:20] Speaker 04:
And so maybe the question Judge Cunningham was asking, and if she wasn't, I'm asking is, when did the court first know that there was any kind of dispute here?

[00:22:31] Speaker 05:
At best, post-trial motions.

[00:22:33] Speaker 05:
I mean, I'm speculating on what the district court knew.

[00:22:36] Speaker 04:
But the first time this issue was- Where the record shows it being raised to the district judge.

[00:22:41] Speaker 05:
They pivoted to this as a post-trial strategy after they lost on them.

[00:22:44] Speaker 05:
on the verdict.

[00:22:47] Speaker 07:
You didn't pivot the court on notice before post-trial motions?

[00:22:50] Speaker 07:
Is that what you're saying?

[00:22:52] Speaker 07:
I'm just trying to make sure I understand the answer to the question that was directly posed by Judge Andrews.

[00:22:57] Speaker 05:
We put our non-infringement theory on notice to the court.

[00:23:03] Speaker 01:
You're saying that what was known to the court all along and to everyone was your so-called direct theory of infringement.

[00:23:11] Speaker 01:
And they only raise the concern.

[00:23:13] Speaker 01:
Is that what you're saying?

[00:23:14] Speaker 05:
Yes, because this was submitted as a factual dispute to the jury.

[00:23:19] Speaker 05:
And when you look at Apple versus Samsung, the case couldn't be more clear.

[00:23:23] Speaker 05:
It was about configured to synchronize.

[00:23:26] Speaker 05:
And at trial, there was a factual dispute about whether there was direct or indirect synchronization.

[00:23:31] Speaker 05:
And the jury came back with non-infringement.

[00:23:34] Speaker 05:
So post-trial, Apple said, hey, we want this construed to include indirect synchronization.

[00:23:40] Speaker 05:
And the district court said, no, this was submitted as a factual matter.

[00:23:44] Speaker 05:
You waived any claim construction issue.

[00:23:46] Speaker 05:
And this court affirmed that judgment.

[00:23:49] Speaker 07:
So what's this in the pretrial order?

[00:23:50] Speaker 07:
I'm just still trying to understand when the court itself, the district court judge, would have first been made aware that this was really the argument being made.

[00:23:58] Speaker 05:
The court was aware in the pretrial aspects that we were disputing this limitation.

[00:24:04] Speaker 05:
The limitation.

[00:24:05] Speaker 07:
And so can you tell me, do you have a JA page for me?

[00:24:07] Speaker 07:
Is it in the pretrial order?

[00:24:09] Speaker 07:
How can I confirm what you just said is accurate?

[00:24:13] Speaker 05:
I don't have a JA page at my fingertips, Your Honor.

[00:24:17] Speaker 05:
What is tricky about is, to us, it's not a claim construction issue at all.

[00:24:24] Speaker 05:
And so there was no claim construction issue raised to the court.

[00:24:28] Speaker 05:
And I can try and find in my notes quickly maybe the non-infringement contention

[00:24:40] Speaker 05:
I'm going to struggle to do that efficiently.

[00:24:43] Speaker 05:
You can keep going.

[00:24:43] Speaker 07:
I was just trying to get an answer on that one.

[00:24:45] Speaker 05:
But what we made clear is that there is one limitation in these claims that we disputed for non-infringement purposes.

[00:24:53] Speaker 05:
And I don't want to mislead your honor in suggesting that there was an argument as to how that was going to be contested.

[00:25:01] Speaker 05:
I don't think any defendant has a burden to do that.

[00:25:04] Speaker 07:
But usually, I mean, correct me if I'm wrong.

[00:25:06] Speaker 07:
And I know Judge Andrews is very familiar with this.

[00:25:09] Speaker 07:
At least when I practiced, you would make sure all the issues that you want to be tried by the court are going to be clear in the pretrial order so there's no doubt about the scope.

[00:25:18] Speaker 07:
Was a similar sort of exercise done during the course of this case?

[00:25:23] Speaker 05:
So we do have a pretrial order.

[00:25:25] Speaker 05:
We do have a trial brief.

[00:25:27] Speaker 05:
OK.

[00:25:28] Speaker 07:
And just off of your memory, was this made clear in one of those sort of vehicles or documents?

[00:25:36] Speaker 05:
I don't have that level of specificity in my mind.

[00:25:39] Speaker 01:
But the witnesses that you have testifying about infringement and non-infringement, we're talking about this, but we're talking about how this operates and that it's intermediary and so forth.

[00:25:51] Speaker 05:
Exactly.

[00:25:52] Speaker 05:
And what is really important on the infringement side is that there was a complete implosion by their and a complete failure of proof.

[00:26:00] Speaker 05:
And that's how this court should affirm this judgment too.

[00:26:04] Speaker 05:
It was their burden to prove infringement and their expert imploded.

[00:26:08] Speaker 05:
He's not even an expert, frankly, for that matter, based on his qualifications.

[00:26:11] Speaker 05:
He didn't look at any code.

[00:26:13] Speaker 05:
He didn't look at any configurations.

[00:26:15] Speaker 05:
This is Mr. Colburn.

[00:26:17] Speaker 05:
And so the

[00:26:19] Speaker 05:
To the extent they're trying to make this new a claim construction issue, our position is waived.

[00:26:25] Speaker 05:
It was a factual issue submitted to the jury, and the jury rejected their case.

[00:26:29] Speaker 01:
You want to turn briefly to corroboration?

[00:26:32] Speaker 05:
I do, but even before that, Your Honor, if I may, there are two bases to affirm on obviousness.

[00:26:39] Speaker 05:
And the simplest path to affirm on obviousness, I think both of them are strong.

[00:26:45] Speaker 05:
But Atenazio is a published patent application that discloses every single element except virtual communications.

[00:26:52] Speaker 05:
Virtual communications were well known in the art.

[00:26:55] Speaker 05:
Their applicant admitted prior art at column 5, 49 to 52, and column 6, 11 to 20 of the 012 patent.

[00:27:05] Speaker 05:
And even their own inventors admitted virtual communications, something that they didn't admit.

[00:27:11] Speaker 04:
The verdict form didn't.

[00:27:13] Speaker 04:
require the jury to pick one set of obvious combination or the other, right?

[00:27:18] Speaker 04:
It was just a general obviousness verdict?

[00:27:21] Speaker 05:
Correct.

[00:27:21] Speaker 05:
By each claim.

[00:27:24] Speaker 05:
And because of it, and also in terms of the factual record, Mr. Antonov explained, Ottenazio discloses the collection of all communications.

[00:27:33] Speaker 05:
And so while there's not an explicit reference to communications with the virtual number, it would have encompassed that.

[00:27:41] Speaker 05:
That record, the jury was properly instructed on obviousness.

[00:27:46] Speaker 05:
The attenasio is everything but a virtual number.

[00:27:49] Speaker 05:
It's an applicant admitted prior art.

[00:27:53] Speaker 05:
That's substantial evidence for the jury to find obviousness.

[00:27:56] Speaker 05:
And that's before you even get into non-infringement, before you get into corroboration.

[00:28:01] Speaker 05:
As far as a separate basis is this issue of the Google prior art.

[00:28:05] Speaker 05:
And with the Google products, Mr. Antonov is a disinterested witness

[00:28:10] Speaker 05:
you're spot on, we have not found a single case where this has ever applied to an expert witness in an obviousness context before.

[00:28:18] Speaker 05:
You see, what I see in the case law are interference proceedings or some sort of dispute where there is another inventor

[00:28:26] Speaker 05:
Whether associated with the party or a third party coming in the court and saying no, this is my invention I did it first and of course, you know what we see in the case laws There are some some reasons that courts might be skeptical of that and that's why we would require corroboration none of those policy considerations apply here and when you read Thompson Judge Rich had it right.

[00:28:48] Speaker 05:
He said

[00:28:49] Speaker 05:
corroboration wouldn't apply in this type of situation.

[00:28:52] Speaker 05:
And that, we submit, is binding precedent on the court in any event.

[00:28:55] Speaker 05:
However, even if the court were to require corroboration, we have the Gartner Report, which talks about integrating Google content without exclusion with Google Vault.

[00:29:06] Speaker 05:
We have multiple witnesses, Mr. Derek Gerard, as well as Brian Coe, who are fact witnesses who testified about Google Voice and the existence and the features of that.

[00:29:17] Speaker 05:
And we had Mr. Colburn.

[00:29:19] Speaker 05:
Because keep in mind, corroboration can be met with circumstantial evidence as well.

[00:29:25] Speaker 05:
And Mr. Colburn, who had a tough day on infringement when he testified, and he also had a tough day when he tried to rebut invalidity, he came in and said, well, let me step back.

[00:29:35] Speaker 05:
The only reason this is even an issue they could put in a brief is because the district

[00:29:41] Speaker 05:
we submit erroneously excluded dozens of exhibits that corroborate every single thing that Mr. Antonoff said.

[00:29:49] Speaker 05:
And we submit that was error.

[00:29:50] Speaker 05:
It was a hearsay ruling, which doesn't comply with this court's precedent.

[00:29:55] Speaker 05:
We didn't appeal it because we have a complete judgment in our favor.

[00:29:58] Speaker 05:
But the point being, there is a strong documentary record that corroborates this.

[00:30:05] Speaker 05:
On cross-examination, Mr. Colburn said he read all those documents, but he didn't consider them.

[00:30:11] Speaker 05:
for purposes of his report.

[00:30:13] Speaker 05:
And that's circumstantial evidence that the only way he could even get on the stand and even say anything that he was offering for non-obviousness was because he was turning a blind eye to even considering this evidence.

[00:30:26] Speaker 07:
So what is your response to what I thought I also was hearing from opposing counsel?

[00:30:30] Speaker 07:
was that there was a lack of documentary evidence put in to support up the obviousness case.

[00:30:37] Speaker 07:
Can you speak more to that?

[00:30:39] Speaker 07:
He was trying to identify what he thought were some admissions that he was getting out of your expert in this regard.

[00:30:47] Speaker 05:
Well, again, it's the byproduct of an erroneous exclusion of over a dozen articles that Mr. Antonov's expert report is supported by that detail the features and corroborate the features of the Google products.

[00:31:01] Speaker 05:
What I think my friend was saying on the other side was that Mr. Antonov's personal use of these features, and I can get into exactly how he did that if you'd like,

[00:31:10] Speaker 05:
That, you know, there is not a particular document for at his company.

[00:31:16] Speaker 05:
But that's not Mr. Antonov's role.

[00:31:18] Speaker 05:
He was giving that as an example.

[00:31:19] Speaker 05:
He was talking again about an obviousness combination based on his experience and his unrebutted expertise as a software engineer in this field.

[00:31:29] Speaker 05:
But, Your Honor, what I'd also come back to is the Gartner Report.

[00:31:33] Speaker 05:
And that's at appendix 829293, is documentary evidence.

[00:31:40] Speaker 05:
I see that I'm past my time.

[00:31:42] Speaker 05:
Thank you.

[00:31:43] Speaker 05:
Thank you, Your Honor.

[00:31:48] Speaker 01:
Will we store three minutes of rebuttal for free?

[00:31:55] Speaker 03:
Thank you, Your Honor.

[00:31:57] Speaker 03:
Appreciate the additional time.

[00:32:00] Speaker 03:
I want to address this issue of how the claim construction for sending developed, to go back to that, to address some of Council's comments.

[00:32:09] Speaker 03:
We're conflating two issues.

[00:32:12] Speaker 03:
The argument that they were making in contentions was their servers in the default configuration are not configured to do anything, including sending.

[00:32:23] Speaker 03:
That's a different issue from, okay, when they are, because they're not in the default configuration.

[00:32:28] Speaker 03:
Their witnesses, their witness CEO, Derek Gerard, testified to all this.

[00:32:34] Speaker 03:
They have these three, you know, three instances and all the demonstrators are in the record before your honors.

[00:32:41] Speaker 03:
What they're not in the default configuration, you can see that from their admissions.

[00:32:45] Speaker 03:
They talked about 100% of their customers, 75% going through an intermediate server, 25% using the API that's direct.

[00:32:53] Speaker 03:
It's direct.

[00:32:54] Speaker 03:
There's no intermediate server there.

[00:32:57] Speaker 03:
They put in the evidence that shows that they're sending under the correct claim construction

[00:33:03] Speaker 03:
That's a different issue from this.

[00:33:05] Speaker 03:
And their expert, when he testified on non-infringement, all he said was, the MRC servers, in their default configuration, are not configured to do these things.

[00:33:19] Speaker 07:
What about the non-infringement contentions that opposing counsels said identified this issue?

[00:33:24] Speaker 03:
Yes.

[00:33:25] Speaker 03:
Yes, Your Honor.

[00:33:26] Speaker 07:
Did they identify this issue?

[00:33:27] Speaker 03:
Not the sending.

[00:33:28] Speaker 03:
Not the directly.

[00:33:30] Speaker 03:
Not the directly.

[00:33:31] Speaker 03:
To correct that on the record here, it wasn't the directly issue in the infringement contentions.

[00:33:39] Speaker 03:
It was the configured, the default configuration issue.

[00:33:42] Speaker 03:
I could see how those would get conflated, but they can't be.

[00:33:45] Speaker 03:
They're different issues.

[00:33:47] Speaker 03:
So this issue did not, this directly issue was not present before trial.

[00:33:53] Speaker 03:
They started putting in evidence during trial with their witnesses showing their, you know, the intermediate server or not with the API that goes directly.

[00:34:01] Speaker 03:
And, you know, so I asked our expert is direct directly limitation.

[00:34:06] Speaker 03:
He says no over their objection in front of the jury.

[00:34:09] Speaker 03:
then their expert gets up, and I don't know why.

[00:34:13] Speaker 03:
He said this without prompting, but he said, on direct examination, I agree.

[00:34:18] Speaker 03:
There's no directly limitation here.

[00:34:20] Speaker 03:
So it doesn't matter if it goes to intermediate servers.

[00:34:22] Speaker 03:
It gets there, as long as it gets there.

[00:34:25] Speaker 03:
That's the record we had.

[00:34:27] Speaker 03:
That's the record we had going into jury instructions.

[00:34:30] Speaker 03:
That's the record we had going into closings.

[00:34:32] Speaker 03:
So the very first time, the very first time that there was an argument on this directly limitation was in their closing.

[00:34:39] Speaker 03:
the very first time.

[00:34:41] Speaker 03:
And the very first time that we hear from the judge that the judge is inclined to agree is post-trial motions.

[00:34:50] Speaker 03:
In pre-trial motions, in pre-verdict motions, JMAW motions, we've said repeatedly there's no directly limitation because we weren't sure what they were going to do with it.

[00:35:01] Speaker 03:
Thank you, Honors.

[00:35:02] Speaker 01:
Thank you.

[00:35:02] Speaker 01:
We thank both sides.

[00:35:03] Speaker 01:
The case is submitted.