[00:00:00] Speaker 02:
The next case for argument is Dear vs. Agco, 2023-1811.

[00:00:08] Speaker 02:
Mr. O'Quinn, whenever you're ready.

[00:00:14] Speaker 03:
Thank you, Judge Prost, and may it please the court, John O'Quinn on behalf of dear.

[00:00:18] Speaker 03:
There's no dispute in this case about how the accused products operate.

[00:00:22] Speaker 03:
The evidence all shows, and indeed defendants, when documents and videos confirm that speed tubes loading wheels engage the seeds and then propel them forward like a baseball pitching machine, all within a confined space.

[00:00:35] Speaker 03:
So to avoid infringement, defendants argued a claim construction that any gravity drop free flight movement of the seeds in the system

[00:00:43] Speaker 03:
had been disclaimed and asked for an instruction to that effect.

[00:00:47] Speaker 03:
They lost that issue and the no disclaimer language, the mirror image of the disclaimer language the defendants had sought at appendix 2010 was included to foreclose that as a basis for arguing non-infringement.

[00:01:03] Speaker 03:
What happened at trial was the defendants fought claim construction, relitigating claim scope by arguing that capture required the seed to be controlled at all times.

[00:01:11] Speaker 03:
without any free flight or free fall, with the district court ultimately acquiescing in removing the language that had made clear that such actions were not outside the scope of the claims.

[00:01:21] Speaker 03:
So where I'd like to start is with the legal error in the construction that went to the jury, because despite its claim construction order and other pretrial rulings, when it came time to instruct the jury, the district court affirmatively withheld guidance about claim scope necessary for assessing infringement, namely that the asserted claims encompass systems

[00:01:41] Speaker 03:
that include free fall or free flight to the belt precisely because they are not disclaimed.

[00:01:47] Speaker 03:
And that lack of guidance then permitted the jury to decide non-infringement based on defendants repeated arguments that the accused speed tube system did not remove seed by capturing it because the seed was quote in free fall to the flighted belt, quote flying through the air with no component touching it,

[00:02:07] Speaker 03:
as their counsel argued, both in opening and closing before the jury and their expert and their product designer resorted as well.

[00:02:13] Speaker 03:
Yet at the same time, the district court made it clear it would inform the jury that the claims encompassed a freefall if the jurors asked the question to that effect on their own, because that would then raise a claim construction issue.

[00:02:28] Speaker 05:
Mr. O'Quinn, where below did the opposing counsel say to the jury,

[00:02:36] Speaker 05:
All you need to understand to decide the infringement question here is that there is a period of time where the seeds are in free fall in the accused product.

[00:02:51] Speaker 05:
And because of that free fall period, we have no infringement.

[00:02:57] Speaker 03:
So Judge Chen, I think that there are

[00:03:00] Speaker 03:
four or five places in particular that I would point you to.

[00:03:02] Speaker 03:
First is in the opening statement at 40,191.

[00:03:07] Speaker 03:
where it talks about the seed flying through the air and then 40,194 that it's free fall to the belt.

[00:03:15] Speaker 03:
You then have, you know, in closing council arguing, you know, quote, and far from being captured, the seeds actually in flight flying through the air, uncontacted by any component that's appendix 40,000, 41,225.

[00:03:29] Speaker 03:
And yet the same point coming out in testimony from their witnesses

[00:03:35] Speaker 03:
that the system does not, quote, control all aspects of the seed motion from the seed meter to the belt.

[00:03:42] Speaker 03:
That's appendix 40,874.

[00:03:43] Speaker 03:
And their expert said something almost identical to that at appendix 41,001.

[00:03:48] Speaker 03:
And the point is that their arguments to the jury were that it didn't have to be, that it had to be controlled at all times.

[00:03:59] Speaker 03:
And that is diametrically inconsistent

[00:04:02] Speaker 03:
with the finding of no disclaimer, that there were portions where you could have a recall.

[00:04:08] Speaker 02:
Where, if ever, did you all, in light of all of this going on at trial, ask the judge for a clarifying construction of something of that sort?

[00:04:18] Speaker 02:
So Judge Prost, this issue... You need to clarify the construction?

[00:04:23] Speaker 03:
Yeah, so Judge Prost, our position was that the construction order reflected in the claim construction order

[00:04:31] Speaker 03:
And in the pretrial order, appendix 3989 had the clarification of saying that there was no disclaimer of such free flight or free fall.

[00:04:41] Speaker 03:
And this issue then got relitigated in front of the district court judge at appendix 40,029, appendix 40,391, appendix 40,409 with the district court then ultimately ruling at appendix 41,030

[00:04:59] Speaker 03:
The quote on cross examination and going forward.

[00:05:02] Speaker 03:
I'm not going to allow dear to put in front of the jury again that I have construed the claim to say no disclaimer in quote And this was contested in the jury instructions.

[00:05:12] Speaker 03:
As you can see it appendix 4251 and when it came time to instruct the to finalize those jury instructions.

[00:05:20] Speaker 03:
The parties identified that there was a dispute about this, and the judge said, quote, I've already ruled on that.

[00:05:26] Speaker 03:
That's appendix 41,140, and then excluded the no disclaimer language from the jury.

[00:05:31] Speaker 03:
So our point is this is essentially, it's almost the inverse of O2 micro.

[00:05:37] Speaker 03:
There was clear language or clarifying language in the construction.

[00:05:42] Speaker 03:
the district court ultimately then withheld that clarifying language and did so on a misunderstanding.

[00:05:48] Speaker 03:
I mean, as this court made clear in O2 Micro, in that case, quote, the district court failed to resolve the party's dispute because the parties disputed not the meaning of the words themselves, but the scope that should be encompassed by this claim language, end quote.

[00:06:03] Speaker 03:
And if you look at, for example, appendix 40,410, the district court didn't seem to appreciate that

[00:06:09] Speaker 03:
just because it wasn't a synonym, that he wasn't substituting this word for that word, that it was an issue of claim scope to not explain to the jury that this sort of conduct, the free fall, free flight was not outside the scope of the claims and therefore not a permissible basis for non-infringement.

[00:06:29] Speaker 02:
And I think that leaves you then in a situation like- Your side include that in your closing argument, that discussion, that argument to the jury.

[00:06:38] Speaker 03:
So the district court said that we could argue to the jury, where in the claims does it say that there can't be any of that?

[00:06:51] Speaker 03:
And we did say that, but that is not the same as actually providing, in this court's words, the yardstick to the jury for the jury to then measure infringement.

[00:07:02] Speaker 03:
I mean, as this court made clear in Omega patents, quote, in the absence of guidance in the form of proper claim construction,

[00:07:08] Speaker 03:
the jury lacked a yardstick by which to measure the arguments and the evidence on this issue.

[00:07:13] Speaker 03:
And that's exactly what happened here is it's not enough to say, well, you can argue this and they can argue that.

[00:07:19] Speaker 03:
The jury actually needs to be instructed on the proper scope of the claims so that they can decide just as in Omega patents, they can then assess whether an infringement or a non-infringement theory was a valid one.

[00:07:32] Speaker 03:
And that's what the jury was not able to do here.

[00:07:34] Speaker 03:
And that itself therefore requires a new trial

[00:07:38] Speaker 03:
Based on the failure to include this clarification for the jury that we had originally asked for that was originally in the claim instruction, the district court subsequently withheld.

[00:07:53] Speaker 03:
I'm happy to answer other questions about this, but another issue I'd also like to address, which is- Can I just ask you one more thing about the claim construction issue?

[00:08:03] Speaker 04:
Yes, Judge.

[00:08:04] Speaker 04:
So the no disclaimer language that is at issue says there was no disclaimer of

[00:08:19] Speaker 04:
a category of freefall between the seed meter and discharge.

[00:08:29] Speaker 04:
That doesn't eliminate the issue of whether a system that includes that

[00:08:42] Speaker 04:
such free fall would meet the claim construction requirement of capture.

[00:08:51] Speaker 04:
I'm having a little trouble understanding what it was that the judge, the district court in your view, had to tell the jury.

[00:09:03] Speaker 04:
All that the no disclaimer language says is that

[00:09:11] Speaker 04:
is no categorical disclaimer of freefall.

[00:09:15] Speaker 04:
But the argument that the other side was making, at least as I was hearing it in your description of the five citations, was that, look, there's freefall.

[00:09:29] Speaker 04:
That helps us convince you that there was no capture.

[00:09:36] Speaker 03:
Yeah, so Judge Tarantso, so the specific language that's at issue was at appendix 125, and it was that, quote, no disclaimer of a seed delivery system that allows for seeds to drop by gravity between the seed meter and discharge.

[00:09:51] Speaker 03:
That was the language.

[00:09:55] Speaker 04:
I'm just trying to point out what it feels to me like a distinction between there was no categorical disclaimer that would prevent a capture conclusion

[00:10:06] Speaker 04:
whenever there was any freefall from a case-specific determination that freefall may or may not negate a capture conclusion.

[00:10:17] Speaker 03:
I agree with you that it's not categorical in that sense, but what this then allowed someone to do, and I'll point you to appendix 41001, this is their expert.

[00:10:31] Speaker 03:
Their expert gets up in front of the jury

[00:10:33] Speaker 03:
and says, in order to be captured, in order to be captured, that its system had to be, quote, controlling all aspects of the motion of the seed, end quote.

[00:10:44] Speaker 03:
Now that's inconsistent with the no disclaimer language, because if there's any gravity freefall within the system, then it's not controlling all aspects of the motion of the seed.

[00:10:57] Speaker 03:
And so we then wanted to, and would have, for us examined their expert to say,

[00:11:03] Speaker 03:
Your suggestion that the system has to be controlling of all experts of the motion of the seed is wrong because the system allows for some, excuse me, the claims allow for

[00:11:15] Speaker 03:
some freefall, that that is not disclaimed from the scope of the claim.

[00:11:19] Speaker 04:
And you just don't think that there's any logical distance between saying the claim allows for freefall and there's no disclaimer of freefall.

[00:11:32] Speaker 04:
It feels to me like there is a logic.

[00:11:35] Speaker 03:
I think the concern, Judge Toronto, is could the jury then rule simply based on the idea that there was some freefall

[00:11:43] Speaker 03:
that that was inconsistent with the definition of capture, and therefore, you know, it didn't fall within the scope of the claims.

[00:11:51] Speaker 03:
And I think the No Disclaimer language categorically rules that out and rules out the jury being able to rule

[00:11:57] Speaker 03:
on the basis that it wasn't quote, controlling all aspects of the motion of the seed.

[00:12:03] Speaker 03:
Again, the very thing that we weren't then able to cross examine on and because that is when the district.

[00:12:09] Speaker 05:
Mr. Quinn, why wasn't that discussion by Agco's expert just talking about the definition of capture in the abstract?

[00:12:19] Speaker 05:
Why do we necessarily have to think he was espousing a

[00:12:24] Speaker 05:
a theory about the freefall portion.

[00:12:28] Speaker 05:
I mean, it could just be removing the seed by capture.

[00:12:35] Speaker 05:
I mean, what that action has to look like, and not necessarily so much about what's happening during the freefall period.

[00:12:44] Speaker 03:
Yeah.

[00:12:45] Speaker 03:
Two points, Judge Toronto, one factual and then one legal.

[00:12:48] Speaker 03:
The factual one is, this is right after their expert had said, in Appendix 40,998,

[00:12:53] Speaker 03:
that is, quote, actually just floating free, end quote.

[00:12:56] Speaker 03:
So the expert is linking those two things up.

[00:12:59] Speaker 03:
And where that leaves you is the fact is we're wondering.

[00:13:01] Speaker 05:
He seems to be talking about it right after talking about whether the belt captures the seed.

[00:13:08] Speaker 03:
Well, I think he ends up talking about both because their position was that the belt, it wasn't sufficient for the belt to be capturing.

[00:13:17] Speaker 03:
The capture had to happen earlier in the system.

[00:13:20] Speaker 03:
and that there was an inconsistency between capture and free flight.

[00:13:26] Speaker 03:
But the fact that we are sort of speculating about what it is that the jury could have relied on.

[00:13:31] Speaker 03:
I mean, at the end of the day, the jury could have relied on the idea that there was some free fall within the system, which they argued repeatedly to the jury.

[00:13:40] Speaker 03:
And as this court held in network one versus HP, when there's not a basis, when the verdict form doesn't indicate a basis for the jury's decision,

[00:13:48] Speaker 03:
and the defendant relied on the district court's erroneous construction, and in this case, the absence of the construction for an argument that it doesn't infringe, then there's prejudice.

[00:13:58] Speaker 03:
Or a different way, again, as Omega Patton pointed, where non-infringement theory could be based in a way that's inconsistent with the proper construction, the verdict has to be set aside.

[00:14:08] Speaker 03:
And respectfully, I'd submit that that's where we are now.

[00:14:10] Speaker 03:
I realize I'm well into my rebuttal time, but one last point before I turn it over, and that is that

[00:14:17] Speaker 03:
The district court separately aired a new trial should be granted because of the exclusion of the testimony about the 037 patent and cross-examination on that.

[00:14:26] Speaker 03:
And it went both to the substance of how the accused system works and to the credibility of the other side in their arguments that from an engineering perspective, projecting and accelerating was the opposite of capture.

[00:14:42] Speaker 03:
And the district court's basis

[00:14:44] Speaker 03:
for excluding this was the idea that there was gonna be some sort of mini trial.

[00:14:47] Speaker 03:
And I would point you to about the O37 patent and I'd point you to appendix 3750, the interrogatory response, because it says in no uncertain terms that the person we were about to cross examine, Mr. Radke, had led the development of the feeder wheels, came up with the idea for the feeder wheels, that the dual feeder wheel feature was then included in the speed two product that was tested and then launched,

[00:15:10] Speaker 03:
And the precision planning obtained patents, allowing the novel, excuse me, showing the novel idea for the feeder wheels.

[00:15:17] Speaker 03:
That is a clear admission that the accused system includes the feeder wheels of the 037 patent.

[00:15:26] Speaker 03:
Their arguments to the contrary are not qualified in the way that they now argue on appeal.

[00:15:32] Speaker 03:
And as this court said in leader versus Facebook,

[00:15:34] Speaker 03:
That means that they should be bound by that.

[00:15:37] Speaker 03:
And that shows that, yes, the district court did abuse its discretion.

[00:15:40] Speaker 03:
I'm happy to answer any questions about that or anything else and see that my time has expired.

[00:15:46] Speaker 02:
There are no further questions.

[00:15:47] Speaker 02:
Let's hear from the other side of Mr. Summersgill.

[00:15:50] Speaker 02:
Thank you.

[00:15:51] Speaker 03:
Thank you, Judge Prost.

[00:15:53] Speaker 01:
Thank you, Your Honor.

[00:15:55] Speaker 01:
May it please the court, Michael Summersgill on behalf of the appellees.

[00:16:00] Speaker 01:
At trial,

[00:16:01] Speaker 01:
the overwhelming evidence supported the verdict of non-infringement and Deere's arguments to now try to overturn that verdict are divorced from the record and in many instances waived.

[00:16:12] Speaker 01:
And on the divorce from the record point, I want to give an example of what Mr. Quinn was just talking about.

[00:16:18] Speaker 01:
We never argued at trial that the patent disclaimed a system that had a gravity drop.

[00:16:24] Speaker 01:
And the clearest indication that we didn't argue that is in

[00:16:27] Speaker 01:
Deer's lead trial counsel's closing.

[00:16:31] Speaker 01:
This is at appendix 41204, the trial transcript, page 1204, 12 to 15.

[00:16:38] Speaker 01:
And he said, the court has made clear that the claim permits does not exclude gravity drop, and you will not hear the defendant's counsel say that it does not include

[00:16:49] Speaker 01:
Gravity drop.

[00:16:50] Speaker 04:
I'm sorry, what was the page that you gave on that, please?

[00:16:53] Speaker 01:
This is appendix 41204.

[00:16:55] Speaker 01:
204, thank you.

[00:16:57] Speaker 01:
And it's the trial transcript at page 1204, lines 12 to 15.

[00:17:02] Speaker 01:
So even their lead trial counsel in his closing said, we never argued to the jury a disclaimer.

[00:17:10] Speaker 01:
And that's because we didn't.

[00:17:12] Speaker 01:
Instead, we argued that the speed tube didn't remove by capture.

[00:17:17] Speaker 01:
by pointing to the fact that the two paddles on the feeder wheels sequentially hit the seed, contacted the seed, accelerated it by 800% from one to nine miles an hour.

[00:17:34] Speaker 01:
And then instead of it being captured, it was flying through the air down to the flighted belt.

[00:17:39] Speaker 01:
And I think, Judge Tronso, to one of your questions, the reason

[00:17:44] Speaker 01:
we focused on the fact that it was flying through the air after it had been impacted because that was relevant to the nature of the contact of the feeder wheels.

[00:17:54] Speaker 01:
In other words, that one hits it to dislodge it, another hits it, and it projects it and accelerates it.

[00:18:01] Speaker 01:
I was the lead counsel for precision at trial.

[00:18:07] Speaker 01:
I know Mr. Quinn was not there, but I can tell you, we never argued a disclaimer to the

[00:18:14] Speaker 01:
jury.

[00:18:15] Speaker 01:
So let me step back and address the two issues Mr. O'Quinn hit, the disclaimer issue and the other seven.

[00:18:28] Speaker 01:
Stepping back on the disclaimer issue, Deer's argument that the district court changed its construction over the course of the trial is just not

[00:18:39] Speaker 01:
accurate.

[00:18:41] Speaker 01:
First piece is Deere waived this argument.

[00:18:44] Speaker 01:
After the district court stated that no disclaimer language, that the no disclaimer language was not part of the construction, and that he would not let them put that in front of the jury again, Deere responded, we're fine with that.

[00:18:59] Speaker 01:
And that's at appendix 41030 to 4103.

[00:19:05] Speaker 01:
So they acquiesced to the ruling at the time.

[00:19:09] Speaker 01:
But they're also substantively wrong on this issue.

[00:19:13] Speaker 01:
The district court didn't change its construction at any point.

[00:19:18] Speaker 01:
The no disclaimer language was never- Can I just ask?

[00:19:22] Speaker 04:
I must say just personally, the argument about changing the construction, there's a lot of interpretive stuff in there that I don't find very helpful.

[00:19:33] Speaker 04:
What I'm focusing on is what I took to be

[00:19:36] Speaker 04:
the real essence of Mr. O'Quinn's argument that given the presentations your side made, your expert, you or your co-counsel, that it was important for the jury to be told that the presence of free-falling in this system at a particular location really doesn't even tend

[00:20:06] Speaker 04:
to negate a finding of capture.

[00:20:14] Speaker 04:
Given your presentations, lawyer and witness, it was important that the claim construction understanding that the judge with unique authority, different from counsel on the other side, had to inform the jury about.

[00:20:36] Speaker 01:
Well, I think, Your Honor, there's a difference between arguing a disclaimer to the jury, which saying the claims cannot cover any system in which there's a gravity drop versus describing the operation of the system in which there is some gravity drop.

[00:20:56] Speaker 01:
We argued the latter, not the former, and I do think there's a delta between those two positions.

[00:21:05] Speaker 01:
Our argument was the system didn't remove by capture because the paddle wheels hit the seed, they accelerated the seed, and then it was traveling through the air for some period of time.

[00:21:16] Speaker 01:
Our argument was we don't remove by capture.

[00:21:23] Speaker 04:
Did you have testimony about when the two paddle wheels come together, there is a very brief moment, and again, here I'm thinking of the baseball pitching machine, when that seed is not free to go anywhere it wants.

[00:21:44] Speaker 04:
For a brief moment, it's being held by one thing on one side and another thing on the other side.

[00:21:51] Speaker 01:
We did not, Your Honor.

[00:21:52] Speaker 01:
And in fact, the testimony is to the contrary.

[00:21:55] Speaker 01:
The testimony from our expert and their expert admitted this on cross.

[00:22:01] Speaker 01:
The paddles on the two feeder wheels hit the seeds sequentially.

[00:22:06] Speaker 01:
First one, which dislodged the seed, and then the second one.

[00:22:11] Speaker 01:
And is there a very brief period of time when they're both

[00:22:15] Speaker 01:
contacting the seed, yes, but it's never holding the seed.

[00:22:20] Speaker 01:
And I think, you know, the analogy of the baseball pitching machine was one we took from their expert and we use that demonstration at trial and the jury agreed that that didn't capture the seed.

[00:22:31] Speaker 01:
But I think the better analogy is another analogy from their expert where he said that even if you're pushing a child on a swing with two hands,

[00:22:39] Speaker 01:
That's not capture, that's projecting.

[00:22:43] Speaker 01:
And so I think that's the key point on the capture issue.

[00:22:49] Speaker 01:
Basically what Deere's argument is, is that virtually any contact would be capture.

[00:22:56] Speaker 01:
And that's, you know, the jury disagreed with that.

[00:22:59] Speaker 01:
But again, those feeder wheels, the paddles of the feeder wheels hit the seed sequentially.

[00:23:03] Speaker 01:
They're not holding it, they're projecting it and they're accelerating it.

[00:23:07] Speaker 01:
And that was by design.

[00:23:10] Speaker 01:
What Precision realized is that they needed to get the seed safely from the slow moving seed meter to the very fast moving flighted belt.

[00:23:19] Speaker 01:
So they realized they had to accelerate it.

[00:23:21] Speaker 01:
And the analogy our inventor on the stand gave was imagine an on ramp on a highway.

[00:23:26] Speaker 01:
If you get on the highway in front of a Mack truck going zero miles an hour, it's going to be a bad outcome.

[00:23:33] Speaker 01:
So they needed to accelerate the seed.

[00:23:35] Speaker 01:
There was no capture.

[00:23:36] Speaker 01:
They were trying to accelerate the seat.

[00:23:38] Speaker 01:
In contrast, in the patent, the whole point of their loading mechanism was to slow the seat down and insert it into their belt.

[00:23:49] Speaker 01:
And, Your Honor, on the point of what Mr. Quinn's arguments, Deere was expressly permitted to argue that the claims

[00:24:02] Speaker 01:
did not exclude a system in which there was a gravity drop.

[00:24:06] Speaker 01:
And Deere pointed to precision marketing documents that said there was no freefall in the precision system.

[00:24:15] Speaker 01:
So in response to that, the judge was correct in allowing us to point out the operation of the

[00:24:22] Speaker 01:
speed tube system, including that the seed did fly through the air after the contact, or just as a child who's pushed with two hands on a swing flies through the air, it's relevant to the contact.

[00:24:35] Speaker 01:
The child's not captured.

[00:24:37] Speaker 01:
The child is accelerated.

[00:24:40] Speaker 01:
And again, I'll come back to their argument on appeal.

[00:24:45] Speaker 01:
Mr. Quinn's argument was that we argued disclaimer to the jury, and that was improper.

[00:24:51] Speaker 01:
But

[00:24:52] Speaker 01:
Their own lead counsel trial said, you will not hear defendants counsel say that it does not include gravity drop.

[00:25:00] Speaker 01:
So their own lead counsel acknowledged, we didn't argue disclaimer.

[00:25:03] Speaker 01:
And in fact, we didn't.

[00:25:08] Speaker 01:
Your honors, unless you have questions about either the capture coin construction issue, I'll turn back to the 037.

[00:25:21] Speaker 01:
Mr. O'Quinn's arguments on the 037.

[00:25:23] Speaker 01:
So Deere's argument is that the district court erred by not allowing Deere to cross-examine with the 037 patent, which was a separate precision patent.

[00:25:37] Speaker 01:
And we submit the district court's decision was correct because the 037 patent describes a system that is different from the SpeedTube product.

[00:25:46] Speaker 01:
This is on our brief at page 30.

[00:25:50] Speaker 01:
We've got a picture of both systems.

[00:25:52] Speaker 01:
The 037 patent describes a system that uses feeder wheels that have a solid outside outer casing.

[00:26:00] Speaker 01:
In contrast, it's undisputed that the speed tube doesn't use feeder wheels with a solid outside casing.

[00:26:07] Speaker 01:
It instead uses feeder wheels with paddles that, as I've said, sequentially hit

[00:26:13] Speaker 01:
the seeds.

[00:26:13] Speaker 01:
So it's a different system and the district court was correct under Rule 403, finding that it would be prejudicial to allow Deere to argue that the speed tube product infringed by pointing to a precision patent that describes a different system.

[00:26:33] Speaker 04:
And that's even though your interrogatory response says in awfully plain terms that the 037 covers your product.

[00:26:45] Speaker 00:
Well, Your Honor.

[00:26:46] Speaker 04:
And I just want to add, just because it's in my mind before I forget it, when the trial court said, I'm going to exclude the testimony, it referred to one sentence

[00:27:03] Speaker 04:
in that interrogatory response, but did not refer to the sentence that said the 037 covers the speed product.

[00:27:16] Speaker 01:
Well, there was motion to eliminate practice on this issue, and Dears Council read all of the language from the interrogatory at some point.

[00:27:26] Speaker 01:
I don't remember if it was at this particular sidebar where it was knocked out, but the district court... Right, right.

[00:27:32] Speaker 04:
But when the judge said, I'm not going to exclude it,

[00:27:38] Speaker 04:
He says, the sentence in question cited by Deere says, quote, precision planting, obtained patents showing the novel idea for the feeder, unquote, feeder wheels, unquote.

[00:27:50] Speaker 04:
I would actually not think that that was the most important sentence, that the sentence that immediately preceded is the one that says, this invention was put into the speed product.

[00:28:08] Speaker 01:
What we intended in that interrogatory and what the district court we submit correctly found is that the interrogatory response was stating that the 037 patent describes the general concept of feeder wheels, not the specific feeder wheels used in the actual speed tube product.

[00:28:34] Speaker 01:
There doesn't have to be a debate about this because you can see it.

[00:28:38] Speaker 01:
Again, this is our brief on page 30.

[00:28:42] Speaker 01:
And this shows the 037 patent figure 12A next to the speed tube.

[00:28:48] Speaker 01:
And in figure 12A, you can see the wheels used there have a solid outside casing.

[00:28:59] Speaker 01:
So they're spinning like this.

[00:29:02] Speaker 01:
Whereas in the speed tube, there are feeder wheels with paddles.

[00:29:06] Speaker 01:
And so what the interrogatory response was saying is that the 037 patent describes the general concept of feeder wheels, but not the specific feeder wheels

[00:29:19] Speaker 01:
used in the SpeedTube product.

[00:29:21] Speaker 04:
Again, you can see the- So were the claims of the 037 limited to the speeder wheel with essentially a rim around it?

[00:29:35] Speaker 01:
Your Honor, there was never any evidence in the trial comparing the claims of the 037 to the SpeedTube product.

[00:29:44] Speaker 01:
We never argued that the claims of the 037 patent covered

[00:29:49] Speaker 01:
the speed tube product.

[00:29:52] Speaker 01:
Deere never argued that the claims of the 037 covered the speed tube product.

[00:29:56] Speaker 01:
So it was just not something that was ever at issue in the trial.

[00:30:02] Speaker 04:
The passage in the 037, column 12, line 40 to 41 says, at step 1525, the seed is preferably captured

[00:30:13] Speaker 04:
between the loading wheels 1202, 1204.

[00:30:16] Speaker 04:
And this is talking about figure 15, which is a flow chart or something, which starts with capture seed with seed meter.

[00:30:27] Speaker 04:
That's not limited to any particular wheels, ones with rims or without rims.

[00:30:33] Speaker 04:
How do we build into that column 12 sentence the rim nature of the wheels?

[00:30:42] Speaker 01:
Because, because that all of the wheels that are described in the 37 are wheels that have this outside this solid outside.

[00:30:53] Speaker 04:
That's the 1202 1204 reference.

[00:30:56] Speaker 01:
Yeah.

[00:30:57] Speaker 01:
And so, Your Honor, again, yes, the 037 patent talks about capturing and then ejecting, but it's not describing the specific system used in the speed tube.

[00:31:10] Speaker 01:
So it's really irrelevant to the operation of the speed tube.

[00:31:15] Speaker 05:
The 037 patent claims they seem to separate out the act of releasing the seed and capturing the seed between the two loading wheels.

[00:31:28] Speaker 05:
Is that correct that the first act is to remove the seed from the seed meter and then a separate act is to then capture said seed between the two wheels?

[00:31:44] Speaker 01:
I think in the 037 what it does is the wheels pull the seed off the seed meter and then they are and so that's what deer would say is capturing what the 037 says is capture and then they project it.

[00:32:06] Speaker 05:
Okay, so it is the wheels then themselves that are

[00:32:11] Speaker 05:
quote unquote, releasing the seed in, I'm looking at the claims of the 037.

[00:32:16] Speaker 05:
And it attracts the chart of the block diagram of figure 15, where step 1520, you release the seed, step 1525, you then capture the seed between the loading wheels.

[00:32:30] Speaker 05:
And then when you look at the final claims, like claim 17 and particularly claim 20, it's really driving in the thought that

[00:32:41] Speaker 05:
there's two separate steps, releasing the seed and then where the seed release location is located above and adjacent to the seed capture location.

[00:32:56] Speaker 01:
Yeah, and Your Honor, I think that is right for the 037.

[00:33:00] Speaker 05:
And so what I'm wondering is, it doesn't seem to be describing removing the seed by capturing the seed.

[00:33:09] Speaker 05:
It seems to be removing the seed and then separately capturing the seed.

[00:33:15] Speaker 01:
Right.

[00:33:15] Speaker 01:
And as Your Honor is referring to, the two precision patents, I'm sorry, the two deer patents at issue, the claims require remove by capture.

[00:33:28] Speaker 01:
And all the evidence presented at trial was that the actual Speed 2 product doesn't

[00:33:33] Speaker 01:
do that, again, because of the nature of the contact of the paddle wheels, which hit the seed sequentially to project and accelerate it.

[00:33:46] Speaker 01:
I'm sorry, Judge Prost, I didn't hear you.

[00:33:50] Speaker 02:
If there are no further questions, your time is up.

[00:33:53] Speaker 02:
Thank you.

[00:33:54] Speaker 01:
Thank you.

[00:33:56] Speaker 02:
Thank you.

[00:33:57] Speaker 02:
Will we store three minutes to Mr. O'Quinn for rebuttal?

[00:34:03] Speaker 03:
Thank you, Judge Prost.

[00:34:04] Speaker 03:
So I want to start with the 037 patent.

[00:34:08] Speaker 03:
First of all, this contrast he's trying to draw between that patent and the acute system of the wheels being solid, if you look at column nine, lines 27 to 30 of the 037 patent, makes clear that the material is more compressible than solid material.

[00:34:27] Speaker 03:
And it has, it consists of these veins which are like blades.

[00:34:33] Speaker 03:
But you don't have to take my word for it.

[00:34:35] Speaker 03:
You can take their word for it because they gave an interrogatory response, which under this court's decision in Leader Technologies versus Facebook, they can't run away from.

[00:34:44] Speaker 03:
That thorough response at appendix 3750 specifically identifies points to picture of the feeder wheels in the accused device.

[00:34:56] Speaker 03:
And those are the same feeder wheels that it is then referring to

[00:34:59] Speaker 03:
when it cites the 037 patent.

[00:35:02] Speaker 03:
And as you pointed out, Judge Toronto, the district court addressed this very quickly.

[00:35:06] Speaker 03:
It's an appendix 40,902.

[00:35:08] Speaker 03:
And look just at the last sentence, as opposed to looking at everything leading up to it.

[00:35:15] Speaker 03:
It explains that we're talking about the same feeder wheels.

[00:35:18] Speaker 03:
There was no separate motion in lemonade practice, even though this was on the exhibit list.

[00:35:23] Speaker 03:
Where this was addressed was appendix 40,902.

[00:35:26] Speaker 03:
And the District Court A didn't do the kind of balancing that the Third Circuit required, it requires in Glass versus Philadelphia.

[00:35:33] Speaker 03:
And second, you know, this mini trial rationale just kind of breaks down in light of the interrogatory.

[00:35:39] Speaker 03:
And if you want to understand, you know, to your question, Judge Chen, about, you know, what's happening in claim 20 of the 037 patent, I would look at appendix 50,120, the video.

[00:35:51] Speaker 03:
You can see what's happening is that it's being captured and ejected.

[00:35:55] Speaker 03:
As it comes off the meter, it's being captured between the wheels and it's being ejected.

[00:36:01] Speaker 03:
And it doesn't matter if the fins or the paddles are hitting at the same time, there's a moment where it is stuck between the two wheels and then ejected out of it.

[00:36:09] Speaker 03:
And yes, it's very fast, but this court's, you know, the system is very fast and this court's decisions make clear that, you know, brief infringement is still infringement.

[00:36:19] Speaker 03:
The exclusion of the 037 patent was highly prejudicial

[00:36:23] Speaker 03:
and was an abuse of discretion and as a basis for a new trial, as is the exclusion of the no disclaimer language.

[00:36:30] Speaker 03:
And at the end of the day, whether it was originally in the construction, not in the construction, this was a dispute about claim scope.

[00:36:36] Speaker 03:
And it was a dispute about claim scope that was crystallized during the trial.

[00:36:42] Speaker 03:
And there was no waiver of this issue.

[00:36:46] Speaker 03:
The district court recognized at the time of jury instructions that was disputed issue 41,140, the we're fine with that referred to how we were going to handle the fact that we had previously told the jury that was in the claim construction, and now we weren't going to be able to tell that.

[00:37:03] Speaker 03:
So there is no waiver here.

[00:37:04] Speaker 03:
This is a situation where

[00:37:06] Speaker 03:
The claim could, necessary information to understand the scope of the claims was withheld from the jury.

[00:37:12] Speaker 03:
The arguments that were presented, yes, they didn't use the word disclaimer, but they used freefall at appendix 40,194 and 40,548, all of which are synonyms for gravity drop.

[00:37:23] Speaker 03:
And this is a basis on which the jury could have found non-infringement.

[00:37:27] Speaker 03:
And under this court's precedence, that requires a huge trial with a proper claim construction.

[00:37:32] Speaker 03:
And I'm happy to answer any additional questions the court may have, but I recognize my time has otherwise expired.

[00:37:38] Speaker 02:
Seeing no for other questions, we thank both counsel, the case is submitted.

[00:37:42] Speaker 02:
Thank you.

[00:37:43] Speaker 03:
Thank you, Judge Prost.