[00:00:00] Speaker 04:
I should have done this at the start of the whole proceeding, but I was so enamored with swearing my clerk, Lily, in that I forgot entirely to thank Judge Andrews for joining our court today.

[00:00:09] Speaker 04:
We very much appreciate both his work in helping us decide these cases, as well as the expertise he brings to bear from a very lengthy career on the trial bench.

[00:00:21] Speaker 04:
So thank you so much for joining us.

[00:00:23] Speaker 05:
Thank you.

[00:00:24] Speaker 05:
It's a pleasure.

[00:00:25] Speaker 04:
Our third case for argument today is 24-1467, Game Vice versus Nintendo.

[00:00:33] Speaker 04:
Counsel, how do I pronounce your name?

[00:00:35] Speaker 01:
Puckneys, Your Honor.

[00:00:36] Speaker 01:
Mr. Puckneys, please.

[00:00:37] Speaker 01:
Like a hockey injury.

[00:00:38] Speaker 04:
Mr. Puckneys, please proceed.

[00:00:40] Speaker 01:
Thank you, Your Honor.

[00:00:41] Speaker 01:
May it please the court.

[00:00:43] Speaker 01:
I'd like to cover three issues today.

[00:00:45] Speaker 01:
One is the Evans and Van Moore issue, and then the confinement structures and the apertures limitations.

[00:00:53] Speaker 01:
Starting with Evans and Van Moore,

[00:00:55] Speaker 01:
I'd like to talk about their application, their requirements, and their limitations.

[00:01:02] Speaker 01:
Evans and Van Moore were devised as an efficient way to dispose of doomed cases.

[00:01:08] Speaker 01:
The accused product turns out to be prior art.

[00:01:11] Speaker 01:
And so the patentee cannot prove infringement without conceding anticipation of the device that they're accusing of infringement.

[00:01:20] Speaker 01:
Note we embrace the logic.

[00:01:23] Speaker 01:
We embrace the holdings of those cases.

[00:01:25] Speaker 01:
But what those cases don't do is they don't change the law of anticipation, which requires a factual determination that the prior art is identical to the claims.

[00:01:36] Speaker 01:
And they don't change the law of infringement, which has the same analysis.

[00:01:39] Speaker 01:
You look at the claims, and is it identical?

[00:01:41] Speaker 04:
Well, how is the factual determination rendered in Van Moore and Evan Schooling?

[00:01:46] Speaker 01:
It's rendered by a stipulation that the defendant goes into as part of the motion, the motion the cases require,

[00:01:53] Speaker 01:
a concession of infringement for the purposes of the motion.

[00:01:57] Speaker 01:
I'm going to get to what that means after.

[00:02:00] Speaker 01:
But so if they lose the motion, there's no penalty.

[00:02:04] Speaker 01:
And again, we have no objection to that as well.

[00:02:07] Speaker 01:
That's not an unusual situation.

[00:02:08] Speaker 04:
So if your argument is that that's how we should be treating what occurred here is a concession by Nintendo for the purpose of the anticipation argument.

[00:02:16] Speaker 01:
Yes.

[00:02:17] Speaker 01:
Yeah.

[00:02:18] Speaker 04:
But they won.

[00:02:21] Speaker 01:
They want in part.

[00:02:22] Speaker 01:
They got a favorable judgment in their favor, and that changes everything.

[00:02:26] Speaker 04:
With regard to certain claims.

[00:02:27] Speaker 01:
To certain claims.

[00:02:28] Speaker 04:
They did not get a favorable judgment with regard to other claims.

[00:02:31] Speaker 04:
So why does the stipulation that they made bind them with regard to claims for which they were not successful?

[00:02:38] Speaker 01:
So let's talk about... Because it's conditional stipulation.

[00:02:41] Speaker 01:
It is a conditional stipulation.

[00:02:44] Speaker 01:
They get an order in their favor.

[00:02:46] Speaker 01:
that let's take claims 16 and 17, because I think that most starkly illustrates the inconsistency between those orders.

[00:02:54] Speaker 04:
No, but it's irrelevant how similar the claims are or different the claims are.

[00:02:59] Speaker 04:
If it is a conditional stipulation, i.e.

[00:03:02] Speaker 04:
we only stipulate this if we prevail, and if we don't, then we don't stipulate it, then why does it matter?

[00:03:08] Speaker 01:
Because the stipulation is the accused product

[00:03:13] Speaker 01:
has every limitation of the claims.

[00:03:16] Speaker 01:
For purposes of anticipation.

[00:03:17] Speaker 01:
For the purposes of this.

[00:03:18] Speaker 01:
And then they get a judgment in their favor.

[00:03:20] Speaker 04:
No, they didn't prevail on these claims.

[00:03:22] Speaker 01:
They on claims, let's take 16, for example.

[00:03:25] Speaker 04:
I don't need to know anything about the specific claims.

[00:03:27] Speaker 04:
They didn't prevail on those claims.

[00:03:29] Speaker 04:
So why are they bound by a conditional stipulation that they made only for anticipation if they should prevail?

[00:03:35] Speaker 01:
Because a necessary part of that stipulation is that the limitations in the claims that they anticipate are present in the switch.

[00:03:44] Speaker 04:
only for purposes of anticipation, and they didn't prevail.

[00:03:48] Speaker 04:
So why are they bound by a stipulation that was clearly conditional only for purposes of anticipation?

[00:03:55] Speaker 04:
You agree that if the district court had rejected

[00:03:59] Speaker 04:
uh... the anticipation arguments regard to all of the claims they would not be down by the stipulation correct correct so why are they down by it with regard to the claims for which the district court rejected because it's it's what happens in the next order what happens in the infringement order that comes next that makes it

[00:04:15] Speaker 01:
inconsistent.

[00:04:17] Speaker 04:
No, but they're not bound by it.

[00:04:18] Speaker 04:
If they're not bound by it because it was conditional and they didn't prevail, then it has no impact on what comes next.

[00:04:25] Speaker 04:
The problem is... See, here's my problem.

[00:04:28] Speaker 04:
You don't mention the words judicial estoppel.

[00:04:30] Speaker 04:
You don't mention the words law of the case.

[00:04:32] Speaker 04:
You did at the district court, but not on appeal.

[00:04:34] Speaker 04:
They've dropped out entirely of your brief.

[00:04:36] Speaker 04:
There's not a single case cited anywhere.

[00:04:38] Speaker 04:
Nor did you point me to any case sites about how judicial estoppel could apply when there's some sort of split-the-baby Ruling where they won in part, but not others I mean it caused me to do an awful lot of research on my own on those issues But you didn't raise any of them on appeal.

[00:04:54] Speaker 04:
You know what else you didn't raise on appeal?

[00:04:56] Speaker 04:
If we agreed with you wouldn't the outcome be we actually vacate the anticipation ruling I actually have been struggling with it myself and

[00:05:06] Speaker 04:
But you didn't ask for that relief.

[00:05:08] Speaker 04:
You didn't even appeal the anticipation ruling.

[00:05:11] Speaker 04:
And so you've left me, I'll be honest, I want to give you relief.

[00:05:15] Speaker 04:
But you've left me with no ability to do so because you haven't appealed any of the arguments that I think it's possible you could have won on.

[00:05:23] Speaker 04:
And you didn't even ask me to vacate the decision that could have been wrong in light of the partial grant of their stipulation.

[00:05:32] Speaker 04:
I don't know what to do with this case.

[00:05:34] Speaker 01:
Well, let me start with,

[00:05:36] Speaker 01:
What you're saying, let's vacate the anticipation order.

[00:05:40] Speaker 01:
That's what we proposed at the district court level.

[00:05:43] Speaker 01:
That's the last thing we proposed.

[00:05:45] Speaker 01:
The last paper we filed was you cannot.

[00:05:48] Speaker 01:
issue a judgment on these two.

[00:05:50] Speaker 02:
I scoured.

[00:05:51] Speaker 02:
I was looking for it.

[00:05:52] Speaker 01:
In this appeal, neither party has asked you to vacate the anticipation.

[00:05:57] Speaker 02:
Why in the world would they?

[00:05:58] Speaker 02:
Those claims are invalid.

[00:05:59] Speaker 02:
They're not going to come up and say, hey, we won.

[00:06:01] Speaker 02:
Those claims are invalid.

[00:06:02] Speaker 01:
I'd like you to vacate it.

[00:06:03] Speaker 01:
But then the question is, why would we?

[00:06:05] Speaker 01:
Because if we're going to lose on infringement, then it doesn't matter whether the claims are valid.

[00:06:13] Speaker 01:
We would find ourselves in the Evans and Van Moore situation.

[00:06:17] Speaker 01:
But let me try one more time why the inconsistency becomes relevant when the infringement order

[00:06:24] Speaker 01:
gets issued.

[00:06:25] Speaker 01:
And that's because the infringement order says two limitations are missing from this order.

[00:06:29] Speaker 04:
I mean, does your client just not care about the claims?

[00:06:31] Speaker 04:
I mean, I thought that these claims were subject to maybe licenses with other parties, asserted in other areas.

[00:06:38] Speaker 04:
I would have thought your client would have cared about the validity of these claims and not like it out there that all those broader

[00:06:44] Speaker 04:
Claims were invalidated.

[00:06:46] Speaker 04:
So why would we care?

[00:06:47] Speaker 04:
I mean, I guess I would have thought you're well, you're on I also thought we would have put more stock in your other infringement arguments and said there's questions of fact and so maybe you'd want all the claims back on the table, but that's just me speculating and this is your litigation strategy So I probably shouldn't use any of your time.

[00:07:00] Speaker 01:
Okay, I got one Okay, I will when the infringement decision comes down and says for example in claims 17 in claims 16

[00:07:11] Speaker 01:
confinement structures and apertures are not there in claim 16.

[00:07:17] Speaker 01:
But those same limitations are in claim 17, which depends from 16.

[00:07:25] Speaker 01:
And that's anticipated.

[00:07:26] Speaker 01:
So that's what creates the inconsistency.

[00:07:29] Speaker 01:
And that's why the orders can't exist together.

[00:07:32] Speaker 01:
And that's what we were arguing on the inconsistency.

[00:07:35] Speaker 01:
Because once an order issues, it becomes

[00:07:39] Speaker 01:
the considerations change, right?

[00:07:42] Speaker 01:
Because before an order issues, we're advocates.

[00:07:45] Speaker 01:
And we're going to reach for any argument at hand that's going to help our client.

[00:07:50] Speaker 01:
And so we're allowed to make inconsistent arguments.

[00:07:53] Speaker 01:
But that's not true once an order issues.

[00:07:55] Speaker 01:
Once an order issues, that limits the arguments you can make.

[00:07:58] Speaker 01:
That's the whole basis of judicial estoppel.

[00:08:00] Speaker 01:
It's the whole basis of issue and claim preclusion.

[00:08:05] Speaker 01:
Now, on the issue of

[00:08:07] Speaker 01:
whether we raise those issues on appeal.

[00:08:09] Speaker 01:
Your Honor, we mentioned estoppel in all three of our Statement of the Issues.

[00:08:14] Speaker 01:
We raised estoppel in law in the case in the introduction.

[00:08:16] Speaker 01:
Where did you raise judicial estoppel?

[00:08:19] Speaker 01:
Well, we use the word estoppel.

[00:08:20] Speaker 01:
I don't know that we use the word judicial estoppel.

[00:08:23] Speaker 04:
Where did you use the word estoppel in a manner that would convey to me that this is a judicial estoppel argument?

[00:08:29] Speaker 00:
In the Statement of the Issues on page

[00:08:36] Speaker 01:
One, there is assuming Nintendo was not stopped from arguing, so it's referring to the previous issue.

[00:08:47] Speaker 01:
Issue one, that's the estoppel argument.

[00:08:49] Speaker 01:
That's the inconsistencies.

[00:08:50] Speaker 04:
I'm sorry, I have no clue what page you're on.

[00:08:51] Speaker 04:
Can you help me out?

[00:08:52] Speaker 01:
Page two of the Bluebird is your honor.

[00:09:00] Speaker 01:
And the words judicial estoppel are not there.

[00:09:03] Speaker 01:
But the idea behind it, the fact that you cannot argue against, you cannot obtain an order and then argue an inconsistent position later on to the detriment of the other side, that's throughout our whole brief.

[00:09:17] Speaker 01:
The only thing that's changed in our briefs is the focus of where the error is.

[00:09:23] Speaker 01:
In the district court, of course, we're going to focus on Nintendo's behavior and Nintendo's arguments.

[00:09:28] Speaker 01:
And they're not allowed to make those arguments.

[00:09:30] Speaker 01:
That's been done.

[00:09:31] Speaker 01:
The district court allowed them to make the arguments.

[00:09:33] Speaker 01:
And so now we're going to explain why the district court made errors.

[00:09:38] Speaker 01:
And so its errors were in its interpretation of Ann Moore and Evans saying that this can be a switch, that you can turn on and off at will.

[00:09:46] Speaker 01:
And it's just not possible.

[00:09:48] Speaker 07:
The interesting thing, part of this appeal, is trying to understand what is the nature of a grant by district court

[00:09:58] Speaker 07:
of an Evans cooling motion.

[00:10:00] Speaker 01:
Yeah.

[00:10:01] Speaker 07:
I agree.

[00:10:03] Speaker 07:
Because what's happening with this type of motion is all the underlying facts are just assumed to be true.

[00:10:11] Speaker 07:
There's no actual merits-based evaluation of whether or not a particular product meets all of the claim limitations.

[00:10:22] Speaker 07:
It's essentially based on a concession by the plaintiff.

[00:10:27] Speaker 01:
It's a stipulation by the defendant to the plaintiff's facts.

[00:10:36] Speaker 07:
It's turning to what the plaintiff has said and using what the plaintiff has said to assume that all of those

[00:10:46] Speaker 07:
statements and allegations are true, and then if you can't win on priority, then you'll lose on anticipation without anybody actually knowing whether that's true or not.

[00:10:57] Speaker 07:
And so then the next question is, when we flip the page and move to infringement chapter of the proceeding, do we just piggyback off of all those assumptions in a new context?

[00:11:12] Speaker 07:
Or in that new context, do we have to start anew and actually evaluate

[00:11:16] Speaker 07:
those underlying fact findings that were never actually really made in the Evans-Coolean motion?

[00:11:22] Speaker 01:
Well, I would say that they were made in the sense that the parties stipulated to it.

[00:11:28] Speaker 01:
And if, for example, Nintendo were to win on only half the claims like it did and were to go forward, it could have asked the district court to take that anticipation finding off the table so that now it could make

[00:11:43] Speaker 01:
its infringement arguments in a way that's not inconsistent with its concession in the anticipation side.

[00:11:50] Speaker 01:
So I agree that in close to 30 years of Evans is the first time, the first case we've been able to see anything even close to this situation.

[00:11:59] Speaker 01:
But it is.

[00:12:00] Speaker 01:
It feels like a one timer.

[00:12:01] Speaker 01:
Pardon me?

[00:12:02] Speaker 01:
It feels like a one timer.

[00:12:03] Speaker 04:
Except it was a two timer, Van Moore.

[00:12:05] Speaker 01:
Well, well, Evans and, yes, yeah, Evans and.

[00:12:08] Speaker 07:
Except this context is the defendant wins on some of the claims and doesn't win on other claims.

[00:12:16] Speaker 07:
So this sort of split outcome.

[00:12:18] Speaker 01:
And so you end up, I think, of necessity having inconsistent outcomes on the anticipation and infringement side.

[00:12:24] Speaker 07:
What if the facts here were different?

[00:12:26] Speaker 07:
What if, in response to an interrogatory, your side, the plaintiff said,

[00:12:35] Speaker 07:
If we don't win on priority, then we admit that our claims are anticipated by this Nintendo Switch product.

[00:12:48] Speaker 07:
And then the other side filed a motion and said,

[00:12:52] Speaker 07:
You know, let's hash it out on priority now.

[00:12:56] Speaker 07:
Because if we went on priority, we have everything right here.

[00:13:00] Speaker 07:
The plaintiff has given us everything in this response to an interrogatory.

[00:13:06] Speaker 07:
All these admissions work in our favor.

[00:13:09] Speaker 07:
We're not saying that we necessarily agree with it.

[00:13:11] Speaker 07:
We don't have to.

[00:13:12] Speaker 07:
The plaintiff has already given away the store.

[00:13:15] Speaker 01:
There's got to be some consequence to the order accepting that.

[00:13:22] Speaker 01:
Our position is the order changes everything.

[00:13:24] Speaker 01:
Because the obverse could be true.

[00:13:27] Speaker 01:
I could have an interrogatory answer from them.

[00:13:29] Speaker 01:
that says the switch lacks.

[00:13:31] Speaker 04:
Do you have any case law to support you?

[00:13:33] Speaker 01:
No, I don't think there's case law on either.

[00:13:36] Speaker 01:
Well, on that an order changes everything, that's judicial estoppel.

[00:13:39] Speaker 04:
Where's the cases?

[00:13:40] Speaker 04:
What case did you say?

[00:13:41] Speaker 04:
Anywhere in your brief?

[00:13:42] Speaker 04:
Any case?

[00:13:43] Speaker 04:
One case?

[00:13:43] Speaker 04:
Any case?

[00:13:46] Speaker 01:
If I can just turn to my non-infringement arguments, if I may.

[00:13:52] Speaker 01:
On confinement structures,

[00:13:55] Speaker 01:
The district court construed it to be physical components that hold a computing device.

[00:14:00] Speaker 01:
Dr. Singhos, our expert, pointed to the rails that are screwed into the side of the switch as... On infringement, are you turning now to the confinement structure or the apertures?

[00:14:11] Speaker 01:
Confinement structures.

[00:14:12] Speaker 04:
So I think you're right about that.

[00:14:13] Speaker 04:
So why don't you turn to apertures?

[00:14:14] Speaker 01:
So let me go to apertures then.

[00:14:16] Speaker 04:
I find a problem with the holes in the joystick.

[00:14:19] Speaker 04:
I actually am willing to concede

[00:14:21] Speaker 04:
agreement with you that there is a fact-finding on whether the buttons are held in place by the holes which are sized appropriately to the buttons but what I don't see is evidence that you presented that the joystick is held at all by the holes and in fact it seems movable in the hole so that it's implying it's not held by the hole and there's a screw that holds it and so I don't see your experts saying anything in particular about this joystick so where is

[00:14:48] Speaker 04:
the question of fact that is created with regard to the aperture.

[00:14:52] Speaker 01:
Well, it's the same as in the aperture.

[00:14:54] Speaker 01:
So if you turn to Appendix 940, and you'll see how the switches, buttons, and joysticks are similar in the sense that they both have flanges at the bottom.

[00:15:04] Speaker 04:
Appendix 940?

[00:15:05] Speaker 01:
940.

[00:15:06] Speaker 01:
Appendix 940.

[00:15:12] Speaker 04:
Okay.

[00:15:12] Speaker 04:
And is this your expert's report?

[00:15:14] Speaker 01:
This is our expert's report.

[00:15:16] Speaker 01:
Okay.

[00:15:17] Speaker 01:
And he addresses both the joysticks and the buttons.

[00:15:20] Speaker 04:
Where?

[00:15:22] Speaker 04:
What paragraph?

[00:15:27] Speaker 01:
That's in the paragraph 50.

[00:15:32] Speaker 01:
The buttons are not attached to their base.

[00:15:35] Speaker 01:
Anything internal, the apertures were too large and the buttons would fall out by the joycon and the joystick

[00:15:41] Speaker 01:
has the same configuration.

[00:15:42] Speaker 01:
It has a base.

[00:15:44] Speaker 04:
Where does the expert say this?

[00:15:45] Speaker 04:
Where does the expert say anything about the joystick?

[00:15:49] Speaker 04:
I don't see anything about the joystick.

[00:15:54] Speaker 04:
I completely agree.

[00:15:55] Speaker 04:
He said the buttons and explained why.

[00:15:58] Speaker 04:
The diameter of the holes and the buttons, they would fall out if the holes weren't sized exactly right.

[00:16:03] Speaker 04:
But that doesn't seem to be, he doesn't seem to testify that the same thing is true with the joystick.

[00:16:07] Speaker 04:
I don't see anything.

[00:16:08] Speaker 01:
Well, but the analysis is the same because the joystick and the buttons both have... You can tell me the analysis is the same.

[00:16:13] Speaker 01:
I'm a lawyer.

[00:16:14] Speaker 01:
I can't find you.

[00:16:15] Speaker 01:
I'll look when we look if he says...

[00:16:18] Speaker 01:
The same sort of arrangement of how the joysticks and the buttons on the joy-cons are secured.

[00:16:23] Speaker 01:
So that's paragraph 53.

[00:16:25] Speaker 01:
So he is saying that the joysticks are secured in the joy-cons at paragraph 53.

[00:16:32] Speaker 01:
And the reason they are is because they have the same kind of flange arrangement that the buttons do.

[00:16:36] Speaker 01:
They are wider at the base, and they will not pull through the button.

[00:16:39] Speaker 01:
Now there are also screws.

[00:16:40] Speaker 01:
Do you dispute that there are screws?

[00:16:42] Speaker 01:
No, I do not.

[00:16:42] Speaker 01:
There are screws there also, but there's nothing in the claims that says only

[00:16:47] Speaker 01:
the holes can secure.

[00:16:49] Speaker 01:
the buttons or the joysticks.

[00:16:53] Speaker 01:
And in fact, when you go to the patent figure 27, you'll see that almost identical arrangement with buttons with flanges and joysticks with a wider base with a flange itself and two screws as well.

[00:17:05] Speaker 01:
It's almost the identical arrangement that's used in the switch.

[00:17:10] Speaker 01:
And the district court's judgment would take that off the table.

[00:17:13] Speaker 01:
It would just make those embodiments not covered by the claim.

[00:17:17] Speaker 01:
And that's just not right.

[00:17:19] Speaker 04:
OK, well, you've used your time, all your rebuttal time.

[00:17:23] Speaker 04:
I'll restore some rebuttal time.

[00:17:26] Speaker 04:
Mr. Bagatell.

[00:17:27] Speaker 00:
Thank you.

[00:17:41] Speaker 04:
Mr. Bagatell, do you mind if I ask you to start in reverse order?

[00:17:44] Speaker 04:
You're going to be instinctively, you're going to want to start with the big issue.

[00:17:47] Speaker 04:
But I'd rather you kind of work backwards and start with this apertures issue.

[00:17:51] Speaker 06:
I'll go in whatever order the court prefers.

[00:17:54] Speaker 06:
So I'll start with non-infringement.

[00:17:57] Speaker 06:
Only the 713 patent is left.

[00:17:59] Speaker 06:
So we can win on either apertures at secure or combined instructors.

[00:18:05] Speaker 05:
I'm sorry.

[00:18:06] Speaker 05:
Why do you say only the one patent is left?

[00:18:08] Speaker 06:
The other one was knocked out in an IPR that they didn't appeal.

[00:18:11] Speaker 06:
We filed a notice of supplemental authority.

[00:18:13] Speaker 06:
Sorry, Matt.

[00:18:14] Speaker 06:
I didn't see that.

[00:18:14] Speaker 06:
There was also another patent that wasn't appealed.

[00:18:16] Speaker 06:
So we're down to Justice 713.

[00:18:18] Speaker 06:
And all the claims include both of those limitations.

[00:18:21] Speaker 06:
And we actually have three ways we can win.

[00:18:23] Speaker 06:
We can win on apertures that secure.

[00:18:25] Speaker 06:
We can win on confinement structures under the district court's construction.

[00:18:28] Speaker 06:
And we can win under confinement structures under what we think is the correct means plus function construction.

[00:18:33] Speaker 04:
Can you start with apertures?

[00:18:35] Speaker 04:
Absolutely.

[00:18:36] Speaker 06:
Why there isn't a question of fact.

[00:18:40] Speaker 06:
OK.

[00:18:40] Speaker 06:
Let me just start with what's undisputed is the meaning of aperture is a hole or an opening, and the meaning of secure is to hold something in place.

[00:18:49] Speaker 06:
That's not really disputed.

[00:18:51] Speaker 06:
Their argument below was that the holes work just like the aperture and the patent.

[00:18:56] Speaker 06:
The patent never really explained how a hole can restrain anything.

[00:19:01] Speaker 06:
Columns four and seven talk about

[00:19:03] Speaker 04:
Apertures that facilitate an exchange of interchangeable modules so you can click Let's say a keyboard out of something else in I mean council this is on summary judgment So it's whether there's a question of fact if their expert claims the holes are sized So that the buttons fit snugly in them and that holds them in place through the simple friction of the sides of the buttons the size of the inside of the holes

[00:19:25] Speaker 04:
That's not for me to decide.

[00:19:26] Speaker 04:
That's summary judgment.

[00:19:27] Speaker 04:
That's a question of fact for the jury.

[00:19:28] Speaker 06:
However, it's undisputed that they don't fit in that way.

[00:19:32] Speaker 06:
There are annulesses or rings around them deliberately in place that was undisputed testimony by our expert that they do not rub up against.

[00:19:42] Speaker 06:
If that were the case, maybe you could say, OK, well, the whole, the edge of the whole, they're really the same thing.

[00:19:47] Speaker 06:
But there is an annulus around each one of those.

[00:19:51] Speaker 07:
So they mean annulus, you mean like basically a circular gap between the edges of the button and then the edges of the holes?

[00:19:58] Speaker 06:
Exactly, so that they don't interfere.

[00:20:00] Speaker 06:
The district court mentions it, it's cited in our expert, it's cited in our brief, but for both the joysticks and the buttons, it works that way.

[00:20:08] Speaker 06:
So the only thing he could say is that if you had a flange that were

[00:20:13] Speaker 06:
much smaller, it might fall outside the hole.

[00:20:15] Speaker 06:
Well, that's counterfactual.

[00:20:16] Speaker 06:
That's not the point.

[00:20:17] Speaker 06:
They're essentially relying on the entire housing to serve as the aperture.

[00:20:22] Speaker 06:
That's not an aperture.

[00:20:23] Speaker 06:
So neither the apertures themselves nor the rims around the aperture are contributing, even contributing, to holding

[00:20:31] Speaker 06:
either the joysticks or the buttons in place.

[00:20:34] Speaker 04:
How do I know that?

[00:20:35] Speaker 04:
Their expert testified to the contrary on page 940 and 941.

[00:20:38] Speaker 04:
And isn't that enough of a question of fact?

[00:20:42] Speaker 06:
Well, no, because they did not dispute the annulus issue, and the district court mentioned that.

[00:20:47] Speaker 06:
So what he's saying, all he's saying here is on 940 and 941 is that if the apertures were too large, the buttons would fall out.

[00:20:55] Speaker 06:
That's really his entire logic.

[00:20:58] Speaker 04:
Yes, which equates to there

[00:21:00] Speaker 04:
They're keeping them in place.

[00:21:02] Speaker 06:
I mean, no, it doesn't, because that creates a question of fact about it.

[00:21:06] Speaker 04:
But they argue.

[00:21:07] Speaker 04:
They argue that Dr. Singho has testified the holes in the Joycon prevent the button from falling out.

[00:21:12] Speaker 06:
No, no.

[00:21:12] Speaker 06:
Your Honor, I think the problem is that he's making a hypothetical that doesn't relate to the actual facts of the case, which involve

[00:21:18] Speaker 06:
a hole, an annulus.

[00:21:19] Speaker 06:
It's not disputed.

[00:21:21] Speaker 06:
Our witness, who's the mechanical engineer who testified about how it's put together, we had our expert testify that he did not dispute any of that.

[00:21:31] Speaker 07:
So then it's not the holes that are securing the buttons in place.

[00:21:35] Speaker 07:
What is it?

[00:21:35] Speaker 07:
Is it the housing wall that's pressing the buttons

[00:21:41] Speaker 07:
Place because and then the holes in the housing or what the buttons poke through It differs a little bit with respect to the joysticks and the buttons the joysticks are a little easier, but just stick with the buttons.

[00:21:54] Speaker 06:
Okay sure

[00:21:55] Speaker 06:
The buttons are attached to a module that has a flange on the bottom.

[00:22:00] Speaker 06:
So the flange actually is touching an actuator, and the whole thing is pinned into the bottom of the housing.

[00:22:06] Speaker 06:
And when you push the two parts of the housing together, that keeps it in place.

[00:22:10] Speaker 06:
So it's the flange and the housing that are being pushed together.

[00:22:13] Speaker 06:
It's nothing in the hole or the edge of the hole, because that's not big enough.

[00:22:16] Speaker 06:
The buttons protrude through, and they are not limited in how they move.

[00:22:21] Speaker 06:
I think it's, let me see if I can find the,

[00:22:26] Speaker 06:
testimony of Mr. Nishikawa.

[00:22:28] Speaker 06:
It starts at $24.93.

[00:22:30] Speaker 06:
I can find the jump site if you want.

[00:22:31] Speaker 06:
That was undisputed about how that works.

[00:22:34] Speaker 06:
And really, it's not a disputed fact that there is this ring around the buttons and the joysticks, each of them.

[00:22:43] Speaker 04:
Look at paragraph 54.

[00:22:45] Speaker 04:
Dr. Singho says, while there is a flange, it is the interaction of that flange with the holes and the proper sizing of the holes that allow the buttons to both protrude from the housing and yet still be secured in place.

[00:22:57] Speaker 06:
Well, he has that conclusion, but he doesn't analyze, doesn't tell you how the hole can restrain anything.

[00:23:02] Speaker 06:
A hole can't.

[00:23:03] Speaker 04:
Yes, he does.

[00:23:04] Speaker 04:
He says it's the proper sizing of the holes that allows that to occur.

[00:23:09] Speaker 06:
But the hole physically cannot restrain anything.

[00:23:14] Speaker 06:
It has to be part of the housing that it's hitting.

[00:23:17] Speaker 06:
It just can't be the hole.

[00:23:18] Speaker 06:
The hole is a void.

[00:23:21] Speaker 06:
So when he's talking about the sizing of the hole, he's basically saying if the hole were smaller or bigger, it might have a different result.

[00:23:28] Speaker 06:
But that's not the point.

[00:23:29] Speaker 03:
The way it's actually- Absolutely.

[00:23:30] Speaker 03:
If the hole is snug fit, appropriately sized, it can hold something in place.

[00:23:35] Speaker 03:
The size of the hole.

[00:23:37] Speaker 06:
Your Honor, I guess I can't make my argument any clearer.

[00:23:40] Speaker 06:
I think if you're not agreeing with that, then I'll move on to confinement structures.

[00:23:45] Speaker 07:
But hold on a second.

[00:23:48] Speaker 07:
If you win on joysticks, then don't you win the case?

[00:23:53] Speaker 06:
Yes, if they're accusing both joysticks and buttons, then it requires each of them to be secured in that fashion.

[00:24:01] Speaker 07:
You said if.

[00:24:02] Speaker 07:
Why did you say if?

[00:24:03] Speaker 06:
Well, I think that's what they did below.

[00:24:04] Speaker 06:
It's not clear to me whether they're still arguing about Joy 6 or not.

[00:24:09] Speaker 07:
Because my understanding is, because of each limitation,

[00:24:13] Speaker 07:
If your side is correct on joysticks, then there's no infringement.

[00:24:19] Speaker 06:
Then it needs to work for each of them.

[00:24:21] Speaker 06:
I agree with that.

[00:24:23] Speaker 06:
I agree with that.

[00:24:24] Speaker 06:
If I may briefly discuss confinement structures, unless you want me to turn back to the estoppel issue, I'll continue with confinement structures.

[00:24:34] Speaker 06:
There's a district court's construction, which is a physical component that holds a computing device.

[00:24:38] Speaker 06:
And our argument on this is fairly simple as well.

[00:24:42] Speaker 06:
The problem is that the Nintendo Switch console is a single integrated device.

[00:24:46] Speaker 06:
The rails are attached very early on, kind of like building your house.

[00:24:49] Speaker 06:
You put up the beams, you put up the header.

[00:24:52] Speaker 06:
It's attached very early on.

[00:24:53] Speaker 07:
Let's assume that's a fact question, whether it's fair to consider it as part of the console or whether it ought to be considered as add-ons.

[00:25:02] Speaker 06:
Well, even if you consider it to be an add-on, our position, and I think the district court agreed with this, is that the rails have to hold a separate

[00:25:11] Speaker 06:
computing device and their definition of computing device was a little bit strange.

[00:25:18] Speaker 06:
They did not include the main frame to which everything is secured.

[00:25:21] Speaker 06:
So everything is screwed into the main frame and they said that's not part of the computing device and neither are the antennas and the antennas are part of it, but various other things are not part or part of the computing device because they needed to have the computing device be held.

[00:25:38] Speaker 06:
So what's going on here is they're trying to rely entirely on the back.

[00:25:41] Speaker 06:
But how is the back attached?

[00:25:44] Speaker 06:
There's a screw that just runs through a hole in the in the in the rails and it goes into this main frame that serves as basically what's the support for everything so what their expert said is well when you tighten it up the

[00:26:04] Speaker 06:
the screw is tightened up, then the rail is going to touch a portion of the back.

[00:26:09] Speaker 06:
Okay, even if that's true, that's not holding the entire computing device.

[00:26:14] Speaker 06:
The computing device has lots of other components.

[00:26:16] Speaker 06:
And all of those things are screwed into something else.

[00:26:19] Speaker 06:
They're screwed into the mainframe.

[00:26:21] Speaker 07:
They are not... So then, what would be an example in your view of

[00:26:24] Speaker 07:
how to change up your product and those side rails such that you think there would be an open fact question as to whether these add-ons components would be possibly holding?

[00:26:38] Speaker 06:
I think you'd have to do a major, major redesign and do something more like what the patent shows, which is basically something that makes a little you or something like that.

[00:26:46] Speaker 06:
You add them on, it clamps on the device.

[00:26:49] Speaker 06:
because I think the way we do it is just so fundamentally different.

[00:26:53] Speaker 07:
If you consider the entire intended... It does look very different than the embodiment that they have, but at the same time, we're getting into a murky gray area trying to figure out when do we cross the threshold into satisfying the whole limitation.

[00:27:11] Speaker 06:
I understand that, but if you consider the computing device to be the entire

[00:27:14] Speaker 06:
console, then the rails are part of the console.

[00:27:18] Speaker 06:
If you consider the computing device to be sort of this collection of parts within, then the rails don't hold all that.

[00:27:25] Speaker 06:
At best they're in like pressing contact according to their expert.

[00:27:28] Speaker 06:
I don't agree with that, but let's give what their expert said credence.

[00:27:31] Speaker 06:
That doesn't tell you it holds

[00:27:33] Speaker 06:
all the rest of the computing device, and those are not connected, right?

[00:27:36] Speaker 06:
They're connected.

[00:27:37] Speaker 06:
They're all screwed into this mainframe.

[00:27:41] Speaker 06:
And the mainframe, they're saying, is not part of the computing device.

[00:27:44] Speaker 06:
This theory just doesn't hold together.

[00:27:46] Speaker 06:
If I may, I'd like to make a pitch.

[00:27:49] Speaker 06:
If you don't affirm on apertures, and you don't affirm under the district court's construction of... I think at this point, you've got to move to the stop hole.

[00:27:55] Speaker 04:
You have five minutes left, and it's a big issue.

[00:27:57] Speaker 06:
OK, I will rely on a brief for purposes of the 112F construction.

[00:28:04] Speaker 06:
So let's turn to the Evans Van Morastopol issue.

[00:28:09] Speaker 06:
The question is whether the summary judgment of invalidity somehow turned into something that was

[00:28:14] Speaker 06:
binding on us for purposes of a later summary judgment of non-intentional.

[00:28:19] Speaker 04:
How do you characterize what you did in this instance?

[00:28:22] Speaker 04:
Was it a stipulation, a conditional stipulation?

[00:28:25] Speaker 06:
It wasn't even a stipulation.

[00:28:26] Speaker 06:
We simply.

[00:28:27] Speaker 04:
Then what was it?

[00:28:28] Speaker 04:
Because that sounds weird to me, right?

[00:28:29] Speaker 04:
In anticipation, the district court does have to make fact findings.

[00:28:33] Speaker 04:
He can make them, or they can be stipulated to.

[00:28:35] Speaker 06:
Well, OK, I would put it this way.

[00:28:38] Speaker 06:
What we were relying on is an admission that they made in their complaint.

[00:28:41] Speaker 06:
It could be in a complaint.

[00:28:42] Speaker 06:
It could be in infringement contentions.

[00:28:44] Speaker 06:
It could be in response to a discovery request.

[00:28:47] Speaker 06:
In any way, that becomes an admission by the opposing party on which we can rely.

[00:28:52] Speaker 06:
We are accepting the truth of that for purposes of this motion.

[00:28:58] Speaker 06:
It's not a stipulation that it's true.

[00:28:59] Speaker 06:
The district court never made any finding that the Nintendo Switch actually practiced the limitations of the anticipated claims.

[00:29:05] Speaker 04:
That's not relevant.

[00:29:06] Speaker 04:
District court doesn't have to make a finding if it's stipulated.

[00:29:08] Speaker 06:
But the point was that you can decide things based on admissions by a party, or you can decide things limitation by limitation.

[00:29:14] Speaker 04:
Because then they're stipulated to.

[00:29:17] Speaker 06:
Well, OK, if you want to call it a stipulation, it wasn't technically, but it's equivalent to in the sense that for purposes of that motion, we would accept their allegation.

[00:29:26] Speaker 06:
So if that's a stipulation, then we'll call it a stipulation.

[00:29:30] Speaker 06:
But that stipulation was entirely limited to that motion.

[00:29:33] Speaker 06:
We made absolutely clear that we did not agree that the Nintendo Switch practiced all those limitations.

[00:29:40] Speaker 04:
But is that relevant to the question of judicial stoppage?

[00:29:43] Speaker 06:
Absolutely.

[00:29:44] Speaker 04:
How so?

[00:29:45] Speaker 06:
Because well there are three elements of judicial estoppel none of which they've addressed in their brief as you pointed out It's a beautiful abuse of discretion.

[00:29:53] Speaker 06:
So the first is is there an inconsistency in our positions?

[00:29:56] Speaker 06:
No, there was not an inconsistency.

[00:29:58] Speaker 04:
Well, actually there is there's surely an inconsistency We are our device has all of these limitations or anticipation our device not does not have all these limitations for validity that is an inconsistency well

[00:30:10] Speaker 04:
Move on to the next one.

[00:30:11] Speaker 04:
You're never going to persuade me on that one, so please move on to the next one.

[00:30:15] Speaker 06:
OK, but it's related in the sense that later on, you have to show that there's been a switch in position that was misleading the district court.

[00:30:21] Speaker 04:
No, it doesn't have to be misleading.

[00:30:23] Speaker 06:
Oh, that's part of the New Hampshire versus Maine test.

[00:30:25] Speaker 04:
What case law exactly says misleading?

[00:30:28] Speaker 06:
New Hampshire versus Maine.

[00:30:29] Speaker 06:
Supreme Court talks about it.

[00:30:31] Speaker 06:
I believe it's in our brief.

[00:30:33] Speaker 06:
I can find it for you.

[00:30:39] Speaker 06:
It would create the appearance that the district court was misled, that the tribunal had been misled, I think is the way it's phrased.

[00:30:47] Speaker 04:
We cited on page 40 of the... Well, I'll read to you from New Hampshire versus Mink, because I have it right in front of me, and I'm happy to look at whatever page you'd like me to look at.

[00:30:53] Speaker 04:
On page 749, I'll give you all of the quotes about judicial estoppel.

[00:30:57] Speaker 04:
Here's how they lay out the test.

[00:30:58] Speaker 04:
Where a party assumes a certain position in a legal proceeding and succeeds in maintaining that position,

[00:31:03] Speaker 04:
He may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formally taken by him.

[00:31:15] Speaker 06:
I think if you skip to page 750 and 751, where they lay out the elements, the second element is the court accepted the earlier position such that acceptance of both the previous position and the subsequent position would create a perception that the court was misled on one or the other occasion.

[00:31:33] Speaker 06:
resulting in unfair advantage or unfair detriment to the opposing party.

[00:31:37] Speaker 06:
So the district court was not in any way misled.

[00:31:40] Speaker 06:
It knew exactly that we were not conceding factual infringement.

[00:31:43] Speaker 06:
It said so.

[00:31:44] Speaker 06:
It never found that the other side would obtain or that we were obtaining some sort of unfair detriment.

[00:31:50] Speaker 06:
He found to the contrary.

[00:31:52] Speaker 06:
They have never shown any abusive discretion in those findings.

[00:31:56] Speaker 04:
I mean, this is a fundamentally intellectually displeasing case.

[00:32:01] Speaker 04:
I don't know what to do with it because it's not fair for you to invalidate claims by virtue of saying your device has all of the elements and then avoid infringement of

[00:32:15] Speaker 04:
The same patent, by saying otherwise, does not have all the elements.

[00:32:17] Speaker 04:
Not if you succeeded.

[00:32:19] Speaker 04:
I agree.

[00:32:20] Speaker 04:
If you didn't succeed, you can plead in the alternative.

[00:32:23] Speaker 04:
I have no problem with you pleading in the alternative.

[00:32:26] Speaker 04:
But once you've succeeded, even in part, I don't see how you get to switch horses halfway through the race.

[00:32:31] Speaker 06:
Well, I don't think we switched horses because we said all along.

[00:32:34] Speaker 06:
But let me make my last point, which is that even if you think that we changed horses, which I don't think we did, the district court's ultimate judgment was in the alternative.

[00:32:45] Speaker 06:
for all of the claims.

[00:32:47] Speaker 06:
All the things that were found anticipated were also found to be non-infringed.

[00:32:50] Speaker 06:
So if you want to disregard the ruling on anticipation,

[00:32:56] Speaker 06:
even though they haven't appealed it.

[00:32:57] Speaker 04:
Let's see what kind of compromise we can strike right now.

[00:33:02] Speaker 04:
Vacate.

[00:33:03] Speaker 04:
If I find non-infringement, are you willing to acquiesce on us vacating the anticipation judgment?

[00:33:08] Speaker 04:
Because that would wipe away the fundamental unfairness I perceive and not cause me to do something that might create really wacky case law.

[00:33:15] Speaker 06:
Yes, we will accept the judgment of non-infringement wall claims.

[00:33:18] Speaker 04:
And vacating the anticipation findings.

[00:33:21] Speaker 04:
Yes.

[00:33:22] Speaker 07:
Do we have the authority to do that?

[00:33:25] Speaker 06:
I think in the sense that the district court has made an alternative judgment, you can address it.

[00:33:35] Speaker 06:
You can waive their waiver, or you can move the coin.

[00:33:38] Speaker 05:
Well, if your opponent agrees to that, I think we could hold it and give the district court a chance to give an indicative ruling that it would do that, and that would solve that problem, I think.

[00:33:49] Speaker 06:
Yeah.

[00:33:49] Speaker 06:
Well, I think we know what the district court would do, because it's got an alternative judgment.

[00:33:53] Speaker 06:
And we prefer to keep the anticipation, but if that's going to be an impediment to affirming, we'll take the judgment of non-infringement and go home.

[00:34:04] Speaker 06:
And that will be the end of it.

[00:34:06] Speaker 04:
Excellent doing business with you, counsel.

[00:34:08] Speaker 04:
I'm going to restore your rebuttal time, because we went over.

[00:34:11] Speaker 01:
Thank you, Your Honor.

[00:34:16] Speaker 01:
First, let me unwind that last bargain you just struck with opposing counsel.

[00:34:22] Speaker 01:
That's between me and him.

[00:34:25] Speaker 01:
I want to talk about just a couple points on apertures.

[00:34:30] Speaker 01:
This idea that each equals every, and I understand that there are some cases that say that.

[00:34:35] Speaker 01:
That issue was never briefed in the district court, so there's not a claim construction that says in these claims, in this patent, each means every.

[00:34:45] Speaker 01:
If we were given the opportunity to brief that, I would point to figures 27 and 28.

[00:34:51] Speaker 01:
which show the exact joysticks coming through apertures in exactly the same way Nintendo does, as saying that clearly in these claims, each doesn't mean every.

[00:35:01] Speaker 01:
It means a subset of the holes, secure input devices.

[00:35:07] Speaker 01:
So they're... Your figure is 2728.

[00:35:10] Speaker 07:
They include screws to fasten down the joystick?

[00:35:14] Speaker 01:
They do.

[00:35:15] Speaker 01:
They do.

[00:35:15] Speaker 01:
You can see the screw holes

[00:35:20] Speaker 01:
very clearly in its Appendix 73, Your Honor.

[00:35:35] Speaker 01:
And you can see a joystick there with two screw holes, two tabs that the screws go through and two screws behind it.

[00:35:46] Speaker 01:
So under their construction of each

[00:35:49] Speaker 01:
that would eliminate this embodiment from the claims.

[00:35:53] Speaker 01:
But again, this was never raised below.

[00:35:55] Speaker 01:
It was never briefed below.

[00:35:56] Speaker 01:
And so even if you think that the joysticks argument falls short, the buttons argument is strong and should stay.

[00:36:06] Speaker 07:
Did the disregard rely on the joystick question?

[00:36:10] Speaker 07:
I think the disregard found that the joysticks are not secured by the holes, right?

[00:36:14] Speaker 01:
Correct.

[00:36:15] Speaker 01:
Correct.

[00:36:16] Speaker 01:
Despite the testimony that

[00:36:18] Speaker 01:
that I pointed out earlier, that our experts said they were secured by the holes.

[00:36:24] Speaker 01:
The last thing I want, and it's about the waiver of the estoppel issue.

[00:36:29] Speaker 01:
Everything, every discomfort that Your Honor raised with the judgment, that's in our blue brief.

[00:36:37] Speaker 01:
New Hampshire versus Maine isn't cited in our blue brief.

[00:36:40] Speaker 04:
No, you gave me no law that allows me to dig in.

[00:36:43] Speaker 04:
I had to go do it all on my own and figure out what happens when they get like a partial victory on the basis of a potential stipulation.

[00:36:48] Speaker 04:
You didn't give me anything.

[00:36:50] Speaker 01:
Let me apologize for not citing the case.

[00:36:52] Speaker 01:
But I will tell you, if you're aware of any cases about a partial judgment, I'm all ears because we looked and we couldn't find it on that case.

[00:37:02] Speaker 01:
So that's why there's no case law on partial judgment.

[00:37:05] Speaker 01:
But certainly, the concept of judicial estoppel.

[00:37:09] Speaker 01:
And I apologize, we didn't cite the case.

[00:37:13] Speaker 01:
But all those concepts that were just discussed, everything we've discussed today is in the blue brief to the extent it's necessary.

[00:37:19] Speaker 01:
The gray brief explicitly discusses it at pages 21 and 22.

[00:37:25] Speaker 01:
Unless there's anything else, Your Honors.

[00:37:28] Speaker 04:
I mean, New Hampshire versus Maine, this rule, known as judicial estoppel, and it's quoting Pegram, another Supreme Court case, quote, generally prevents a party from prevailing in one phase of the case on an argument, then relying on a contradictory argument to prevail in another phase of the case.

[00:37:43] Speaker 04:
Seems like kind of on point.

[00:37:44] Speaker 01:
Yeah, well, and we definitely have that concept in our brief.

[00:37:48] Speaker 01:
They're not allowed to win on anticipation and later turn around and throw that out the window for infringement.

[00:37:54] Speaker 01:
So the idea is there.

[00:37:55] Speaker 01:
And again, I apologize, Your Honor, for not citing that case.

[00:37:58] Speaker 01:
But certainly, I- Any case.

[00:38:02] Speaker 04:
You probably ought to stop there, because- I know when to stop.

[00:38:06] Speaker 04:
Thank you, Your Honor.

[00:38:07] Speaker 04:
All right.

[00:38:07] Speaker 04:
And thank you, counsel, for the argument.

[00:38:08] Speaker 04:
Please take another submission.