[00:00:00] Speaker 01:
Good morning, Your Honor.

[00:00:10] Speaker 04:
Andrew Aiken on behalf of Ninebot Technology Co., Ltd., Ninebot Inc., Japan, and Ninebot USA.

[00:00:23] Speaker 04:
This is a patent case.

[00:00:28] Speaker 04:
It relates to a self-balancing unicycle where a rider stands between a wheel and a gyroscope system with balancing and driving the unicycle.

[00:00:42] Speaker 04:
The device may have seen them on trails.

[00:00:47] Speaker 04:
Mr. Chen, he's the owner of the inventor and the owner of the plaintiff and patent owner that's in dispute.

[00:00:57] Speaker 04:
He didn't invent this self-balancing motorcycle, but invented a couple of improvements to them.

[00:01:04] Speaker 04:
Among other features, he removed a U-shaped bracket that was on a prior art self

[00:01:11] Speaker 04:
balancing unicycle.

[00:01:13] Speaker 04:
And importantly, he put some special surfaces there that he described that protruded slightly from the sides that were necessary and important to control the device.

[00:01:27] Speaker 04:
It's not contested that our client Ninebot sold such devices during this infringement period of 2014 through 2015.

[00:01:39] Speaker 04:
But at the end of 2015, they pivoted to a device that didn't have these lateral protruding surfaces.

[00:01:49] Speaker 04:
And the court on summary judgment found that

[00:01:52] Speaker 04:
They did not infringe.

[00:01:56] Speaker 04:
We've appealed two issues today.

[00:01:58] Speaker 04:
The first is the district court's preclusion of our ability to present evidence of non-infringing alternatives.

[00:02:08] Speaker 04:
This evidence was material to our case because Inventus was able to prove lost profits during this

[00:02:19] Speaker 04:
That's correct, yeah.

[00:02:21] Speaker 04:
It's not exactly the actual award doesn't divide what it is, how much was lost profits and how much was reasonable royalty.

[00:02:32] Speaker 04:
But the agreed upon maximum reasonable royalty would have been about $70,000.

[00:02:39] Speaker 04:
They were awarded about seven hundred and thirty thousand dollars.

[00:02:43] Speaker 04:
I believe so a large part of that award was lost profits.

[00:02:48] Speaker 01:
Was there evidence about the non-incringing alternative in the ability to modify the device involved in importation of non-incringing second-generation devices?

[00:03:05] Speaker 04:
Our evidence that we intended to produce was a redesign or modification of the first generation device, which had a padded battery cover.

[00:03:16] Speaker 04:
And what we intended to show by one of our witnesses is they could have removed this padded battery cover and required removal of a ring that was press fit in there and then two screws.

[00:03:33] Speaker 04:
And they could have put a plate

[00:03:35] Speaker 04:
that was contiguous with the surface and not had a protruding special surface.

[00:03:42] Speaker 04:
It would have been smooth.

[00:03:46] Speaker 04:
It was just by and large a smooth surface, but it had somewhat of a convex shape.

[00:03:54] Speaker 04:
And I think the district court judge misunderstood the law, because twice she said that since this product was not on sale during the infringing period, we were precluded from offering that device.

[00:04:10] Speaker 04:
Excuse me?

[00:04:12] Speaker 03:
The correct legal standard for this.

[00:04:15] Speaker 04:
On appeal, that's abusive discretion.

[00:04:17] Speaker 03:
No, no, no, no.

[00:04:18] Speaker 03:
The correct legal standard to determine whether a non-infringing alternative was available.

[00:04:23] Speaker 04:
It's a matter of fact.

[00:04:25] Speaker 03:
Well, no.

[00:04:25] Speaker 03:
There's a standard, though.

[00:04:26] Speaker 03:
I mean, clearly, we have these laws.

[00:04:29] Speaker 03:
If there's something on sale, that's a non-infringing alternative.

[00:04:32] Speaker 03:
Correct.

[00:04:33] Speaker 03:
If it's just a theoretical idea, it's not a theoretical idea.

[00:04:37] Speaker 03:
Understood.

[00:04:38] Speaker 03:
So the state?

[00:04:38] Speaker 03:
I understand the standard would be somewhere in the middle.

[00:04:42] Speaker 03:
Right.

[00:04:42] Speaker 03:
It's not sort of a hearty question.

[00:04:43] Speaker 04:
All right.

[00:04:44] Speaker 04:
Well, the case law said that the

[00:04:46] Speaker 04:
The person that's proposing this that's not online has to have the necessary materials and know-how, which we believe that because of our manufacturing, we had that.

[00:04:59] Speaker 04:
It was ready to show the time and the cost of development, that it wasn't theoretical that you could create this, because we did create a second-generation product that was highly similar to the redesign.

[00:05:18] Speaker 03:
I mean, does it cross over from a merely theoretical idea that because you were working in this area, you could have made one to an acceptable non-enriching alternative?

[00:05:29] Speaker 03:
Because it doesn't seem to me, just because after the fact, you get an expert to say, well, we could have designed around this if we'd known about it.

[00:05:38] Speaker 03:
That doesn't seem to be the right legal standard.

[00:05:41] Speaker 03:
If that's the case, we almost never have non-enriching alternatives.

[00:05:45] Speaker 03:
Because you can always get an expert to say, yeah, they

[00:05:52] Speaker 04:
Well, I think that's what the case law allows, if it's readily available.

[00:05:59] Speaker 04:
And you can show how you would have done that.

[00:06:04] Speaker 01:
It's the ease of it.

[00:06:05] Speaker 04:
It's the ease of it.

[00:06:06] Speaker 04:
And it was simple.

[00:06:08] Speaker 04:
It literally was two screws that needed to be removed.

[00:06:11] Speaker 02:
Do you have evidence of that?

[00:06:12] Speaker 02:
Or did I saw a proffer in the record?

[00:06:14] Speaker 02:
But is there an expert report or declarations?

[00:06:18] Speaker 02:
Did you identify witnesses who would say, as you're suggesting to us, it's so easy?

[00:06:22] Speaker 04:
Well, that's a good question.

[00:06:25] Speaker 04:
And we don't, because we weren't aware of the claim for lost profits until we obtained an expert

[00:06:37] Speaker 04:
You said the agreed-or proffer met the standard of providing a proffer.

[00:06:46] Speaker 04:
But we didn't have these other witnesses because they never pled under Section 287 that they were going to seek

[00:06:55] Speaker 04:
that they were seeking lost profit damages, which they have to do under Articat.

[00:07:01] Speaker 04:
They have to plead lost profits.

[00:07:04] Speaker 02:
Did the district court set a deadline for them to make clear to you that their damages theory was lost profits?

[00:07:10] Speaker 04:
No, we just responded to their expert reports, but it was never pled.

[00:07:16] Speaker 04:
That was our first notice.

[00:07:18] Speaker 01:
I thought you offered a specific witness.

[00:07:22] Speaker 01:
There was an offer of approval, and the district court found that sufficient.

[00:07:26] Speaker 01:
Does that mean it wasn't a witness?

[00:07:27] Speaker 04:
No, no, there was a witness.

[00:07:28] Speaker 04:
I was saying there was never a time that they said that we had to provide

[00:07:38] Speaker 01:
that you were timely in being proper, right?

[00:07:42] Speaker 01:
The district court specifically said it was sufficient.

[00:07:44] Speaker 04:
Correct.

[00:07:45] Speaker 02:
I think there's an issue about the timeliness of your proper, but I think your friends on the other side thought or argued that you waited too long to tell them that you were challenging certain aspects of the market.

[00:07:59] Speaker 04:
Well, that as well.

[00:08:01] Speaker 04:
Is that right?

[00:08:03] Speaker 04:
That's a different issue.

[00:08:03] Speaker 04:
A separate issue that we've appealed today.

[00:08:06] Speaker 04:
And actually, I'd like to move on to that because of the timing.

[00:08:13] Speaker 04:
In any event, we think that, just to summarize, we think it was abusive discretion to prevent us from providing this evidence.

[00:08:21] Speaker 04:
We provided a witness in our pretrial order, and it was excluded.

[00:08:29] Speaker 04:
The second issue relates to notice of infringement under 287.

[00:08:36] Speaker 04:
And in order to get pre-filing damage, it's well established you have to plead it and then show either actual notice or constructive notice.

[00:08:46] Speaker 04:
Here, the plaintiff sort of threw everything against the wall.

[00:08:56] Speaker 04:
They argued that they provided both.

[00:08:59] Speaker 04:
their evidence of actual notice that they cited was a meeting that happened in China that was happened before the patent had even issued and we hadn't even started manufacturing.

[00:09:14] Speaker 04:
So that could have been impossible under the case law because actual notice requires a specific identification of a product and the identification of the patent.

[00:09:28] Speaker 04:
That's their alternative theory.

[00:09:30] Speaker 01:
They've also argued that they marked the product.

[00:09:38] Speaker 04:
Well, with respect to that testimony, that was the only testimony that supports marking.

[00:09:46] Speaker 04:
Under the law, I would advocate they would.

[00:09:52] Speaker 04:
And also, their testimony itself

[00:09:55] Speaker 04:
lacked foundation.

[00:09:58] Speaker 04:
Their testimony said, I believed I marked it.

[00:10:01] Speaker 04:
That's all we have.

[00:10:03] Speaker 04:
No, he said he marked his products, and then when I specifically asked him if he marked the SolarWare Classic, he said, I believed I marked it.

[00:10:23] Speaker 04:
It was general testimony that he marked his products.

[00:10:26] Speaker 04:
And then when it came back, and we showed that he didn't always mark his products like that he had testified to.

[00:10:35] Speaker 04:
He said that he, as sort of a custom in usage, he would put patent pending, and then after a product patent issued, he'd marked it.

[00:10:44] Speaker 04:
But we introduced- He said this is a draft issue.

[00:10:49] Speaker 04:
It is a fact issue, but we... We don't think that that snippet of testimony, he didn't testify that he did all his products.

[00:11:10] Speaker 04:
He just said he marked his products.

[00:11:15] Speaker 03:
Yes, it was, and that's my opinion.

[00:11:18] Speaker 03:
That's correct.

[00:11:26] Speaker 04:
We had probably too many chiefs and not enough Indians at the time.

[00:11:32] Speaker 03:
I mean I was one of three lawyers.

[00:11:43] Speaker 04:
Well, we didn't.

[00:11:46] Speaker 04:
Our appeal was on 59.

[00:11:47] Speaker 03:
The appeal could not have possibly included this issue, because it had to have been renewed in the Rule 50 motion.

[00:11:54] Speaker 04:
That's correct.

[00:11:55] Speaker 03:
So the notice of appeal that we're talking about in this case didn't bring this issue in.

[00:12:01] Speaker 03:
It had to have been a proper appeal in the denial of the Rule 50-9 motion.

[00:12:05] Speaker 04:
Correct.

[00:12:06] Speaker 03:
And you didn't appeal it in that motion.

[00:12:09] Speaker 04:
Right.

[00:12:09] Speaker 04:
And we asked for latitude under Rule 2, and we put that in on.

[00:12:14] Speaker 04:
Excuse me?

[00:12:19] Speaker 03:
But we had already filed a notice of appeal.

[00:12:35] Speaker 04:
Right, but I cited authority that said, once I filed my newest appeal, the federal circuit has jurisdiction over it.

[00:12:44] Speaker 01:
We've heard now that this covers the lighter arm.

[00:12:47] Speaker 01:
That's the idea, right?

[00:12:48] Speaker 04:
Right.

[00:12:49] Speaker 04:
Once you have jurisdiction, you're permitted.

[00:12:53] Speaker 03:
In the nature of order was because the case wasn't final or the light, but the motion wasn't.

[00:12:59] Speaker 03:
That matter wasn't brought before us until it was not

[00:13:04] Speaker 04:
Correct.

[00:13:06] Speaker 04:
I agree with that.

[00:13:07] Speaker 04:
But I'm saying the court still has jurisdiction, has their discretion, to hear this.

[00:13:13] Speaker 04:
And we asked for the latitude for that issue.

[00:13:16] Speaker 04:
They brought this.

[00:13:17] Speaker 03:
I understand what you're saying, latitude.

[00:13:20] Speaker 03:
Latitude is quite the legal standard for determining whether something is properly performed.

[00:13:28] Speaker 04:
Once you have jurisdiction over the appeal,

[00:13:33] Speaker 04:
you have jurisdiction over that issue as well.

[00:13:35] Speaker 04:
That's what my position is.

[00:13:37] Speaker 04:
And the case law that was cited by the cross-appellant in this case is not applicable to that, because it was all circumstances where the appellate court did not have jurisdiction over the case.

[00:13:55] Speaker 04:
Once the jurisdiction attaches under Rule 2, they can suspend that

[00:14:02] Speaker 04:
that rule to allow consideration.

[00:14:05] Speaker 04:
And that's why we're asking for review of this issue as well.

[00:14:11] Speaker 04:
The rule that a second notice of appeal for that specific issue is required.

[00:14:27] Speaker ?:
OK.

[00:14:27] Speaker ?:
We've only got 45 seconds left.

[00:14:28] Speaker ?:
We'll give you a couple minutes.

[00:14:36] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:14:50] Speaker 00:
Debra Cohen on behalf of Plaintiffs Cross Appellants, Inventist, Inc., and Shane Chen.

[00:14:55] Speaker 00:
The Court's permission, I'd like to reserve four minutes for rebuttal.

[00:14:59] Speaker 00:
Jurisdictional and procedural defects preclude review of two of Ninebot's three issues on appeal.

[00:15:07] Speaker 00:
As the court has noted.

[00:15:08] Speaker 01:
There's no procedural harm with respect to the exclusion there of their witness right on the non-application alternatives.

[00:15:18] Speaker 00:
Correct, Your Honor.

[00:15:19] Speaker 00:
In their briefing, Ninebot argued, while it purported to only appeal the exclusion of the evidence, which is properly before the court.

[00:15:27] Speaker 01:
do that, of course, but there are even seems to be supported by brain processing in other cases.

[00:15:42] Speaker 01:
They don't have to show that the artificial intelligence is actually on sale unless it's really available.

[00:15:45] Speaker 01:
Why didn't their evidence show really

[00:15:49] Speaker 00:
There simply is no evidence in the record that the product was readily available.

[00:15:56] Speaker 00:
They made an offer of proof, Your Honor, after they had raised this issue on summary judgment, after they received

[00:16:05] Speaker 00:
Inventus expert report claiming lost profit damages?

[00:16:09] Speaker 03:
Yes.

[00:16:09] Speaker 03:
Inventus report truly was that there was no evidence of non-infringing alternatives.

[00:16:14] Speaker 03:
And she applied the incorrect law by requiring actual sales of non-infringing alternatives.

[00:16:21] Speaker 03:
Then that was the error.

[00:16:24] Speaker 03:
And she has to decide under the right legal standard, based upon what the evidence that they wanted to put in, whether there were possible non-infringing alternatives.

[00:16:35] Speaker 00:
The court excluded the evidence because no evidence was timely disclosed.

[00:16:42] Speaker 00:
There was nothing in an expert report.

[00:16:44] Speaker 03:
The report is really unclear on this point.

[00:16:46] Speaker 03:
It seems to me she excluded it because she said there's no evidence of non-infringing article being sold during the relevant period.

[00:16:57] Speaker 03:
Do you agree that's the wrong standard?

[00:17:00] Speaker 00:
That is the wrong standard, Your Honor.

[00:17:01] Speaker 00:
Articles don't need to be actually sold.

[00:17:03] Speaker 00:
However, if they are not sold, case law states that the infringer has to overcome the inference that no products are actually available.

[00:17:15] Speaker 03:
They had evidence to show that these could have been easily modified, which they say is the correct legal standard during this period.

[00:17:26] Speaker 03:
They weren't allowed to put that evidence on.

[00:17:27] Speaker 00:
They had the opportunity to put that evidence on, Your Honor, at summary judgment when they raised this argument.

[00:17:32] Speaker 01:
They raised this.

[00:17:42] Speaker 00:
That's correct, Your Honor, but in their summary judgment briefing, they argued exactly what they're arguing now before the court, that they could easily modify the first generation product.

[00:17:53] Speaker 00:
They didn't actually support that with any evidence, any declaration.

[00:17:58] Speaker 03:
I don't understand how that leads them to be put

[00:18:01] Speaker 03:
putting that evidence more at trial, particularly when she didn't grant summary judgment on that one.

[00:18:07] Speaker 03:
If your argument is correct that they didn't provide sufficient evidence at the summary judgment stage for this, then you should have brought on summary judgment.

[00:18:15] Speaker 03:
You didn't.

[00:18:16] Speaker 03:
They're not bound by that when they come to trial and put it on evidence, are they?

[00:18:20] Speaker 00:
No, but they are bound by not engaging in trial by ambush, which is what they were attempting here.

[00:18:26] Speaker 01:
Where did this happen?

[00:18:28] Speaker 01:
In the order that they're actually in which is the order on the pretrial order She says that on page

[00:18:59] Speaker 00:
I believe that's correct, Your Honor.

[00:19:01] Speaker 00:
Thank you.

[00:19:05] Speaker 00:
And there the court says that there is no timely evidence of non-infringing alternatives.

[00:19:11] Speaker 00:
And the court is correct there.

[00:19:13] Speaker 00:
Non-Bot was attempting to shift its theory once again.

[00:19:16] Speaker 02:
I ask you, that order starts with the court referencing a pre-trial conference

[00:19:22] Speaker 02:
and saying the following rulings were issued for the reasons as stated on the record.

[00:19:28] Speaker 02:
Do we have that record?

[00:19:30] Speaker 02:
What was the judge talking about there?

[00:19:32] Speaker 00:
I'm afraid we don't have that record on review, Your Honor.

[00:19:34] Speaker 03:
Is it the problem?

[00:19:35] Speaker 03:
You're only pointing this to the second half of this sentence on 31.

[00:19:39] Speaker 03:
The first half says non-infringing substitutes not on sale during a period of infringement.

[00:19:45] Speaker 03:
That's legally incorrect.

[00:19:47] Speaker 03:
So what makes the difference whether she said it wasn't timely if she's saying applying the incorrect legal standard?

[00:19:57] Speaker 01:
The way I would read that is what she's saying is that they didn't present any evidence that it was actually on sale and that that's what's required.

[00:20:08] Speaker 00:
Respectfully, Your Honor, I would read it differently.

[00:20:11] Speaker 00:
I would read it as the court recognizing that there is a long history in this case of Ninebot attempting to shift its damages.

[00:20:17] Speaker 02:
And just to be clear, do you know, is there a transcript ruling that exists, such as for some reason we don't have it?

[00:20:24] Speaker 02:
Did she explain what she met here on the record somewhere?

[00:20:28] Speaker 00:
I am unsure if there is a transcript of the pretrial conference, Your Honor.

[00:20:32] Speaker 02:
So, all we have is our understanding of this one sentence, which you acknowledge has a legal error in it, the first part of the sentence, correct?

[00:20:45] Speaker 00:
that you read that part in isolation.

[00:20:48] Speaker 00:
The second half, NIMA had the opportunity to put on evidence that it easily could have changed.

[00:20:54] Speaker 03:
And you said that that's the argument they made in their summary judgment question.

[00:20:58] Speaker 03:
They just didn't, to your view, put on sufficient evidence to support that.

[00:21:03] Speaker 03:
It's not like you weren't on notice of what their argument was, which is modification, not actual bail.

[00:21:10] Speaker 00:
But there is no opportunity for anyone to actually probe this.

[00:21:13] Speaker 00:
The summary judgment issue is after the close of discovery.

[00:21:16] Speaker 00:
They didn't indicate in their pretrial order itself that they intended to argue modification.

[00:21:23] Speaker 00:
They didn't identify any witnesses who would argue modification.

[00:21:26] Speaker 00:
Well, wait, wait.

[00:21:27] Speaker 01:
She said at one point that your proffer on this point is at, but you made your point.

[00:21:33] Speaker 01:
Where do we find that?

[00:21:35] Speaker 01:
She said you made your proper and that's adequate, right?

[00:21:41] Speaker 00:
She said you made your proper and that's adequate.

[00:21:43] Speaker 01:
Where do we find that?

[00:21:44] Speaker 01:
Which order is that?

[00:21:46] Speaker 00:
That's in the trial testimony, Your Honor.

[00:21:49] Speaker 00:
And that is at... I believe that that is at page...

[00:22:07] Speaker 01:
Nine to five.

[00:22:09] Speaker 01:
Thank you.

[00:22:11] Speaker 01:
That's all.

[00:22:12] Speaker 01:
Nine to five.

[00:22:13] Speaker 01:
Nine to five.

[00:22:20] Speaker 01:
So there's no suggestion at that point that it may be untimely, right?

[00:22:25] Speaker 00:
The proffer was timely, Your Honor.

[00:22:26] Speaker 00:
The proffer was also offered after the order that Ninebot is actually appealing.

[00:22:30] Speaker 00:
I think they were doing it solely as a protective measure to ensure the issue was before the court, which it was.

[00:22:36] Speaker 00:
And at that juncture, the court stood by its ruling that Ninebot had not timely disclosed that it was planning on offering any of this.

[00:22:45] Speaker 01:
The exclusion of evidence is a... Okay, but where here, at the trial, where she rules that there's already been brain processing, and she says, I reject that, and that your proper is timely.

[00:22:58] Speaker 01:
You know, there's no suggestion in this discussion at the trial that there's anything timely about raising the issue, correct?

[00:23:06] Speaker 00:
Raising the issue, no, but raising the evidence, yes.

[00:23:10] Speaker 01:
Where does she say here that there's something untimely about raising the evidence?

[00:23:14] Speaker 01:
It seems to me quite the contrary.

[00:23:16] Speaker 01:
She's saying you've made a proffer and that's adequate.

[00:23:20] Speaker 03:
Also on page 906, it seems she clearly is still misunderstanding the standard.

[00:23:26] Speaker 03:
If you look up at line 6, after them talking about the proper and only removing screws, she says, did they do it?

[00:23:35] Speaker 03:
What's that?

[00:23:36] Speaker 03:
Did they do it?

[00:23:37] Speaker 03:
And then it goes on.

[00:23:38] Speaker 03:
She asks, did they do it again?

[00:23:39] Speaker 03:
That is not the right standard, that they actually did it.

[00:23:43] Speaker 03:
If that's the problem, then that's the problem.

[00:23:47] Speaker 03:
I don't see any reference at all in this colloquy.

[00:23:51] Speaker 03:
She's excluding the evidence because it was unfairly presented at the last moment and was detrimental to her side.

[00:24:00] Speaker 03:
She is excluding it because she doesn't think that it provided any evidence of actual non-imprinting alternatives being in existence.

[00:24:10] Speaker 03:
And if that's the basis for her ruling, that's legally incorrect.

[00:24:16] Speaker 00:
Respectfully, Your Honor, the order that's been appealed was the pretrial order.

[00:24:20] Speaker 00:
And the pretrial order expressly references timeliness.

[00:24:23] Speaker 00:
And again, NIMA had the opportunity to disclose that it was going to put on evidence at some point prior to this proffer of modification.

[00:24:32] Speaker 00:
And it didn't.

[00:24:33] Speaker 00:
It's not in an expert report.

[00:24:34] Speaker 00:
It's not in a rebuttal expert report.

[00:24:37] Speaker 00:
It's not in the description of the witness's anticipated testimony.

[00:24:43] Speaker 00:
The trial court.

[00:24:44] Speaker 00:
properly excluded untimely evidence to avoid trial by ambush.

[00:24:49] Speaker 03:
Where does it say any of that?

[00:24:52] Speaker 00:
It is, I believe, fairly implied from the court's reference to timely evidence of non-aggression.

[00:24:57] Speaker 03:
One word when the rest of the call is all about her applying the incorrect legal standard.

[00:25:02] Speaker 01:
Why don't you move on?

[00:25:04] Speaker 00:
I'll move on, Your Honor, thank you.

[00:25:05] Speaker 00:
Turning then to Ninebot's first issue, which is its attempted appeal of the order denying the motion for new trial.

[00:25:15] Speaker 00:
As Your Honor, Judge Hughes recognized, timely filing a notice of appeal is a jurisdictional requirement.

[00:25:21] Speaker 01:
So if they filed a premature notice of appeal, that's sufficient.

[00:25:29] Speaker 01:
If they filed a notice of appeal, why doesn't that cover the later order as well?

[00:25:33] Speaker 00:
For two reasons, Your Honor.

[00:25:34] Speaker 00:
First, that notice of appeal did not, as is admitted by counsel, identify the order on the motion for new trial as an order being appealed.

[00:25:44] Speaker 00:
And the statute, 28 USC 2107,

[00:25:50] Speaker 00:
specifically references bringing orders up before the court.

[00:25:55] Speaker 00:
Federal rule of appellate procedure 4A4B sub 2 specifically states that when a party challenges an order on a draft or a motion, which would include motions for new trial, a party must

[00:26:13] Speaker 00:
must file an amended notice of appeal for a new notice of appeal if it hasn't filed one.

[00:26:19] Speaker 02:
Doesn't that rule also have a good cause standard allowing for waiver?

[00:26:23] Speaker 02:
Does that work?

[00:26:24] Speaker 00:
No, Your Honor, it does not.

[00:26:25] Speaker 00:
There is no good cause standard allowing for waiver.

[00:26:28] Speaker 00:
And the rule that counsel referenced, Prop 2, which generally does allow the court to waive those rules, specifically cites to accept as provided in Rule 29.

[00:26:39] Speaker 00:
And Rule 29 specifically states

[00:26:43] Speaker 00:
that the court cannot extend the time to file a notice of appeal except as provided in Rule 4, which Rule 4 then does have circumstances if a motion is made to the district court under limited circumstances to reopen or extend the time to file a notice of appeal.

[00:27:01] Speaker 00:
There's nothing in the rules that allows the party appealing a motion for a new trial to not actually file an amendment notice of appeal.

[00:27:13] Speaker 00:
I see that I'm eating into my rebuttal time, Your Honor.

[00:27:16] Speaker 00:
I'll rest with that if I may.

[00:27:18] Speaker 01:
You're not going to argue across the table?

[00:27:21] Speaker 00:
Just very briefly, Your Honor, Ninebot, or I'm sorry, the district court erred in granting summary judgment on Ninebot second generation products.

[00:27:33] Speaker 00:
It's a question of fact for the jury whether the convex

[00:27:36] Speaker 00:
Second plate on nine, not second plate.

[00:27:39] Speaker 03:
I don't understand this argument at all.

[00:27:41] Speaker 03:
You agreed to a claim construction which called surface as something that protrudes from the side.

[00:27:48] Speaker 03:
And now you're trying to argue, if I understand it, that the side is not the outside.

[00:27:54] Speaker 03:
It's some inner covering.

[00:27:56] Speaker 03:
But you didn't get a claim construction to find side.

[00:28:00] Speaker 03:
And side doesn't naturally seem to mean something inside the casing.

[00:28:04] Speaker 03:
It seems to mean the outside.

[00:28:07] Speaker 03:
And if it does mean the outside, I think there's no question of that, that there's nothing protruding from the outside of this second generation product.

[00:28:16] Speaker 03:
What's protruding?

[00:28:18] Speaker 00:
As you noted, Your Honor, there is no specific definition of side, so it's up to a reasonable consideration by a jury.

[00:28:23] Speaker 03:
That's up to you.

[00:28:23] Speaker 03:
No, no, no.

[00:28:24] Speaker 03:
If you take us down that path, then you're going to be in an O2 micro situation, and we're going to be up here on appeal saying, what's the proper construction of side?

[00:28:34] Speaker 03:
And psi does not naturally seem to mean to be some interior portion of something that's been covered, does it?

[00:28:42] Speaker 03:
That's your best argument that psi means something inside and not the outside of the device.

[00:28:53] Speaker 00:
where the outer balance of the side is.

[00:28:55] Speaker 03:
That's no, no.

[00:28:57] Speaker 03:
Don't argue me that's a question of fact.

[00:28:59] Speaker 03:
That is definitely, if you're going to dispute what the side means, that's a claimed instruction of our argument.

[00:29:06] Speaker 00:
Then, Your Honor, respectfully I would say that the two-part construction with the contact surface that comes in contact with the user's leg, allowing them to control the machine, to control the device, is a leg-contact service.

[00:29:19] Speaker 00:
At least it is a question of fact.

[00:29:21] Speaker 03:
Yeah, but that's not what you argued as the client construction below.

[00:29:24] Speaker 03:
You're stuck with what you argued, which is a surface which protrudes from the sides of the device and which may come in contact.

[00:29:31] Speaker 00:
The parties agreed that that was the definition of it, that that was an appropriate claim construction.

[00:29:37] Speaker 03:
Right.

[00:29:37] Speaker 03:
And now you're trying to kind of vary it by changing the definition of what side is.

[00:29:43] Speaker 00:
I don't believe that there's anything in that that would preclude a reading of side as side of the internal casing.

[00:29:49] Speaker 00:
An external casing on top of it

[00:29:51] Speaker 00:
is beyond the side of the device.

[00:29:56] Speaker 02:
Could you give us an example of what would not be a protruding side under this analysis you're offering us now?

[00:30:06] Speaker 00:
Certainly, Your Honor.

[00:30:06] Speaker 00:
If there was a wheel and one single cover,

[00:30:11] Speaker 00:
and nothing beyond it, that single cover would be the side of the device.

[00:30:16] Speaker 02:
Does the single cover have to be completely flush with the rest of the device?

[00:30:20] Speaker 00:
It would have to be close to flush with the device.

[00:30:23] Speaker 00:
Obviously, there would need to be a small amount of room so that the wheel could move.

[00:30:26] Speaker 00:
But here there's a two-part construction.

[00:30:28] Speaker 00:
There is that internal cover and then a convex external cover.

[00:30:32] Speaker 00:
And we posit that it is a question of fact for the jury whether or not that is protruding from the side of the device.

[00:30:40] Speaker 01:
Okay, I think we're out of time.

[00:30:57] Speaker 04:
We'll give you one minute.

[00:30:59] Speaker 04:
I just have a few issues to discuss.

[00:31:01] Speaker 04:
One, regarding the timeliness.

[00:31:05] Speaker 04:
It's important to understand that we were never given notice that they were receiving pre-filing damages until, essentially, we received the expert reports.

[00:31:18] Speaker 04:
In fact, the discovery had closed at that point.

[00:31:21] Speaker 02:
So we had no- Do you know if the district court said more about why she was giving these rulings, this reference on 29 to, I'm doing this for the reasons stated on the record?

[00:31:36] Speaker 02:
You don't recall she gave an explanation?

[00:31:40] Speaker 04:
Yeah.

[00:31:44] Speaker 04:
A lot of things were discussed in that pre-trial conference.

[00:31:47] Speaker 04:
Actually, it says a pretty extensive pre-trial order.

[00:31:51] Speaker 04:
But that was one of the issues that we were raising at the time, as well as probably seven or eight other issues.

[00:31:58] Speaker 01:
Well, she pretty clearly indicated at the trial conference that one of the issues was preserved, right?

[00:32:04] Speaker 04:
Correct.

[00:32:07] Speaker 04:
I think you recognize that in summary judgment, she specifically said that the existence of non-infringing alternatives is an issue of fact.

[00:32:21] Speaker 03:
And the theory you're arguing now is the theory you made in your summary judgment papers, right?

[00:32:26] Speaker 03:
That you can make an argument that it was being sold.

[00:32:31] Speaker 03:
You made the same argument, I think, that you're making to us that it was easily modified.

[00:32:36] Speaker 03:
Modified, yeah.

[00:32:36] Speaker 04:
And there's nothing changed from that date to the pre-trial order.

[00:32:42] Speaker 04:
I mean, there was no other evidence that came in.

[00:32:44] Speaker 04:
The record was exactly the same.

[00:32:47] Speaker 04:
And at the pre-trial order, she decides, well, there's no evidence about infringing alternatives.

[00:32:55] Speaker 04:
There was no event that could have changed that from the summer judgment.

[00:33:02] Speaker 04:
I also note that counsel said it wasn't in the description of the witness testimony.

[00:33:10] Speaker 04:
Our witness, we did indicate that we intended to present evidence on the redesign, and that's of the first generation product.

[00:33:29] Speaker 04:
$20 to $30 that would probably involve costs of making this retrofit at our distributors and whoever else was selling it in the United States.

[00:33:40] Speaker 01:
Okay, I think we're going to have further discussions here and then we'll have a lot of time.

[00:33:48] Speaker 01:
Thank you.

[00:33:48] Speaker 01:
Thank you, sir.

[00:33:51] Speaker 01:
Since the crossing table scenario, there's not a lot of time.

[00:33:52] Speaker 01:
Okay, thank you, Mr. Chancellor.

[00:33:53] Speaker 01:
The case is submitted.