[00:00:00] Speaker 04: We have four arguments this morning, and we will begin with number 232117, Mondus against LG Electronics. [00:00:13] Speaker 02: May it please the court. [00:00:16] Speaker 02: The district court erred in granting a new trial on damages following the first trial, and the verdict should be reinstated. [00:00:23] Speaker 02: The new trial order rests on two interrelated legal errors with respect to the apportionment of license agreements, a recurring issue in this court's jurisprudence. [00:00:32] Speaker 02: First, the district court held that it violated this court's decisions to assert that a patent could command the same price as a small family of continuation patents as a matter of law, not as a matter of fact, taking that issue from the jury improperly. [00:00:47] Speaker 02: Second, district court was led into error by LG, which improperly argued [00:00:53] Speaker 02: that because other family members of the 180 patent were blocking patents and standard essential, that a license to the 180 patent would be worthless. [00:01:02] Speaker 02: This was error and is unsupported by any of this court's jurisprudence. [00:01:07] Speaker 02: These legal errors rendered the new trial order an abuse of discretion. [00:01:11] Speaker 02: Accordingly, the remedy is to reinstate the verdict and remand the case for further proceedings on other matters, including attorney's fees, extraordinary case, and interest. [00:01:23] Speaker 04: So you're talking about the damages questions now, and I do want you to talk about that. [00:01:30] Speaker 04: I do hope that you will take the initiative of addressing the written description cross-appeal question, too, because that seems to me at least a significant question, and rather than you [00:01:41] Speaker 04: be limited to rebuttal on that. [00:01:44] Speaker 04: I'd like to hear your view of it. [00:01:46] Speaker 02: You can do them in any order, but... I'll do them in the order that your honor has suggested. [00:01:51] Speaker 02: It's a little bit complicated here, given the cross-appeal. [00:01:53] Speaker 04: I do want to have enough time. [00:01:56] Speaker 04: So why should we not understand that district judges setting aside of the 2019 verdict and ultimately granting a new trial as [00:02:12] Speaker 04: not an abusive discretion because even though it is possible, and I don't mean theoretically possible, I mean maybe even in the real world possible, for there to be a scenario in which you can't really find the value of, to simplify, one of two patents to be smaller than the value of licensing them in a package, [00:02:42] Speaker 04: An expert would have to establish that this is one of those circumstances. [00:02:48] Speaker 04: And the major thing that the expert did here was to say, and not just the expert, but I guess the internal [00:02:57] Speaker 04: maybe both Lamb and Spiro, this is what we do. [00:03:01] Speaker 04: And Omega did clearly say, saying, this is what we do is not enough. [00:03:06] Speaker 04: And as an economic matter, that's certainly got to be right. [00:03:11] Speaker 04: You can't just control the outcome by saying, this is our policy. [00:03:15] Speaker 04: But why couldn't the district judge have said, well, that was a major piece of the economic testimony, and that's not enough. [00:03:23] Speaker 04: So you can have to do it again. [00:03:25] Speaker 04: That would then leave a question of whether restrictions on what was to be done the second time were too rigid. [00:03:33] Speaker 04: But at least on the grant of the new trial, I guess that's what I'm interested in hearing about. [00:03:39] Speaker 02: Sure. [00:03:40] Speaker 02: So Omega was a very different case on the facts. [00:03:43] Speaker 02: I understand that. [00:03:45] Speaker 02: In this case, we had a license agreement actually between the two parties to the litigation, which is quite unusual, that had a rate in it, 1%, that was defined in a letter attached to the agreement that showed exactly how the license was calculated. [00:04:01] Speaker 02: There was evidence in the case that there were actual license agreements that were entered into at a quarter of a percent for the television patent alone. [00:04:10] Speaker 02: And that evidence was based on what we call the DDC2B family. [00:04:15] Speaker 04: Right, but the whole problem was about, I think, tell me if I'm wrong, was separating the 180, I think that's the number, from the other, depending on how you count, four or seven patents in the family. [00:04:30] Speaker 02: All of the licenses, there was one license, Your Honor, that actually had a specific price for the 180 patent, if you want to go that far. [00:04:40] Speaker 02: That was the Hanhai license. [00:04:42] Speaker 02: There was a provision 4.4 that said the full amount was due in that license. [00:04:46] Speaker 04: I thought the Hanhai license actually listed all eight in that family. [00:04:49] Speaker 02: It had a provision 4.4 which said if any of the following claims, if any one of the following claims are valid, the full amount is due under this agreement. [00:05:01] Speaker 02: Very specific provision that had an actual rate for the actual claim ensued. [00:05:07] Speaker 02: So that kind of evidence simply did not exist in Omega. [00:05:10] Speaker 02: Plus, Omega, there was a policy that was stated by the licensor, but it was not shown to have actually been followed or agreed to by third parties. [00:05:20] Speaker 02: Here, we had 29 licenses, and even Mr. Hanson, LG's expert, agreed that the standard rate for the family was 0.25%. [00:05:29] Speaker 02: Now, you have continuation patents, so we have to deal with the economic, the technical comparability issue as well. [00:05:36] Speaker 02: which was not dealt with in Omega and some of the other cases at issue, where someone just says, I have a license agreement for X dollars, and I have 100 patents in it, so I want X dollars for my one patent. [00:05:47] Speaker 02: We provided technical comparability evidence from Mr. Lamb, which clearly stated and was uncontested that the 180 was by far the most valuable patent in the family and had by far more usage in televisions. [00:05:59] Speaker 02: That evidence, of course it's qualitative, but it's relevant, and we provided the link there between the 180 and the rest of the family. [00:06:06] Speaker 02: And it should not be surprising. [00:06:09] Speaker 04: So being the most important, how does that get you to get the entirety of the amount as opposed to, I don't know, 80%? [00:06:20] Speaker 02: We've got three reasons. [00:06:22] Speaker 02: One, Mr. Spiro testified that that's what was done in his program. [00:06:26] Speaker 02: Two, not what his policy was, but was actually agreed to. [00:06:29] Speaker 02: Two, our licensing expert, Mr. Braddock, said that this is the way licenses are negotiated in the real world. [00:06:36] Speaker 02: You can't command a greater price for a continuation patent than for a base patent, because a licensee will never pay twice, and a licensor would never charge twice. [00:06:46] Speaker 02: And Mr. Spiro said that he would never do that. [00:06:49] Speaker 02: license a continuation and then sue someone the next day on a later continuation. [00:06:53] Speaker 02: That's not the way licenses are conducted in the real world. [00:06:57] Speaker 02: And third, even if you want to require a standard, which could never be met in almost any case that comes here, to show an actual price for an actual claim and suit, we have that in the Hanhai license, which says as long as claim 14 is valid [00:07:13] Speaker 02: you have to pay the full amount of the license. [00:07:15] Speaker 02: So that has actual apportionment built in. [00:07:18] Speaker 02: I don't think that's required under this court's law. [00:07:21] Speaker 02: You can't make it too difficult to prove reasonable royalty, or no one will ever be able to prove it. [00:07:26] Speaker 02: If this corpus of evidence, the 29 licenses which we apportioned down to the patent and suit specification, provided technical comparability evidence, provided economic comparability evidence, [00:07:38] Speaker 02: If that's not sufficient to create an issue of fact for the jury, then it's not clear that anybody can meet this court's standard for a reasonable royalty. [00:07:48] Speaker 04: Let me ask this question. [00:07:54] Speaker 04: On the assumption, which I think you've just explained why you disagree with, that on the assumption that it was permissible for the district court to grant a new trial on 2019, maybe not for insufficiency of the evidence in a J-MAL sense, which it didn't end up granting, but against the great weight of the evidence, or a bunch of the testimony was infected by what we now understand from Omega to be a legal error, [00:08:23] Speaker 04: Nevertheless, so we're now at the second stage, and you say, here's, we don't have this, but Mr. Brattick's 2021 report, not in the record in front of us, so we have the very extensive description in terms of four observations plus one other thing, the Hansen alternative. [00:08:48] Speaker 04: What specifically, what are your concrete pieces of evidence or assertions that you think were improperly excluded at that stage, very concretely? [00:09:02] Speaker 02: Sure. [00:09:02] Speaker 02: So I would start with the... Mr. Spiro was prohibited from discussing other licenses, and we were prohibited from introducing an evidence, any license that was on the pretrial. [00:09:16] Speaker 02: in the pretrial order, but was not actually entered into evidence at the trial. [00:09:22] Speaker 02: We were prohibited from making the argument on the Hanhai license that section 4.4 gave a very specific price. [00:09:30] Speaker 02: It's confidential, but a certain number of cents per unit. [00:09:34] Speaker 02: And arguing that that would be a low number, which could be enhanced because of the infringement and validity certainty you'd have in the hypothetical negotiation. [00:09:43] Speaker 02: And that would be a higher number. [00:09:45] Speaker 04: And when you say, so you were not allowed to argue that as a lawyer in closing? [00:09:53] Speaker 02: That's correct. [00:09:53] Speaker 04: And was the Hanai license introduced into evidence? [00:09:56] Speaker 02: The Hanai license was introduced into evidence. [00:09:59] Speaker 02: And the ruling at the trial was that I was prohibited. [00:10:05] Speaker 02: You put Mr. Hanson on, got his number out. [00:10:08] Speaker 02: I was prohibited by the judge from even arguing, based on the evidence in his admissions, [00:10:13] Speaker 02: what a specific number is that the jury could draw from the record. [00:10:17] Speaker 02: I was prohibited from arguing that the Hanhai license supported a higher number. [00:10:22] Speaker 02: I was prohibited from arguing the 0.25% times the base would be $25 million. [00:10:27] Speaker 02: And the court should enhance from that because he said, well, that's just what you did the first trial. [00:10:34] Speaker 02: I was not allowed to make those arguments in closing. [00:10:37] Speaker 02: Now, whether that would make a difference will depend on how you rule. [00:10:40] Speaker 02: If you send it back, we'd go back, I suppose, to the point before the new trial order was entered. [00:10:45] Speaker 02: You'd have to redo the work, and we'd have to see where we go. [00:10:48] Speaker 02: But the trial was deeply constricted as a result of the no new evidence ruling and the instructions during the trial as to what evidence we could produce. [00:10:58] Speaker 02: There was also evidence from one yellow here, and I didn't get to a written description. [00:11:03] Speaker 04: Don't worry about the clock so much. [00:11:06] Speaker 04: I'll worry about it for you. [00:11:07] Speaker 02: Thank you. [00:11:08] Speaker 02: I have to ask. [00:11:09] Speaker 04: But can we talk briefly about the written description? [00:11:14] Speaker 02: Yes, certainly. [00:11:15] Speaker 04: So here's one kind of threshold question. [00:11:17] Speaker 04: I think everybody is in agreement about the following, but I want to be sure. [00:11:22] Speaker 04: When the specification talks about an identification number for the display, it doesn't use the word display, but the display device. [00:11:33] Speaker 04: You understand that to be a number unique to the particular unit that is like a vehicle identification number. [00:11:46] Speaker 04: Two different identical copies of the same LG television would not have the same identification number, right? [00:11:53] Speaker 02: I don't agree with that, Your Honor, according to the patent specification. [00:11:57] Speaker 02: Dr. Stevenson's theory was that the [00:12:05] Speaker 04: There's a serious language problem here that I'd like to kind of put behind us so we can talk about the actual substantive issue. [00:12:17] Speaker 04: I don't remember your disputing. [00:12:20] Speaker 04: that the identification number was, like a vehicle identification number, unique to a particular unit different from the identification number of 13 million physically identical units. [00:12:37] Speaker 04: But that you said, well, that identification number can have built into it certain type information. [00:12:47] Speaker 02: I don't accept. [00:12:49] Speaker 02: the premise that the identification number has to be different for every single display in the world. [00:12:55] Speaker 02: The identification number has to be sufficient to communicate the information necessary to make the embodiment work. [00:13:03] Speaker 01: Can we back up a minute? [00:13:04] Speaker 01: There's no type identifier. [00:13:07] Speaker 01: description in terms of actually using the word type identifier in the specification, right? [00:13:15] Speaker 01: There's one or two stray references that aren't sufficient for written description. [00:13:19] Speaker 01: Nobody pointed to those as defining it in the way you want it. [00:13:23] Speaker 02: There's only one reference to type, one or two references to type. [00:13:26] Speaker 02: Obviously, it's well known that there are different types of displays, and you don't have to use in-house verbal to get a written description. [00:13:32] Speaker 02: There are four reasons why the written description [00:13:34] Speaker 02: determination by the jury and the judge was appropriate. [00:13:39] Speaker 02: First, Dr. Stevenson's admissions. [00:13:41] Speaker 02: Second, Mr. Lamb's testimony on the embodiment of column 5, line 62, which showed that an identification number could be used to determine whether there's a communication function, not a unique display from all the others in the world. [00:13:55] Speaker 02: That was directly contrary to Dr. Stevenson's and LG's theory. [00:13:59] Speaker 02: Third, the credibility finding of the district court that his credibility had been impaired. [00:14:05] Speaker 02: And fourth, the fact that the PTO specifically agreed to this amendment during an office interview. [00:14:11] Speaker 02: Not dispositive, but under this court's case law, it is relevant. [00:14:14] Speaker 02: Those four pieces of evidence were all heard by the jury. [00:14:17] Speaker 02: They were all heard by the judge. [00:14:19] Speaker 02: And the judge concluded that the jury had failed to meet its burden on clearing convincing evidence. [00:14:24] Speaker 01: OK, can we back up a minute? [00:14:27] Speaker 01: The one you were talking about. [00:14:30] Speaker 01: I understand three of those, but one I don't. [00:14:32] Speaker 01: But what I want to really ask you is, let's assume, and this is mostly going to the impeachment testimony, that their expert was impeached. [00:14:42] Speaker 01: And so there's no evidence from them about why there's a lack of written description. [00:14:47] Speaker 01: But we find there's nothing in the specification itself [00:14:53] Speaker 01: that supports written description. [00:14:55] Speaker 02: What do we do then? [00:14:56] Speaker 02: I think that you have to affirm the district court's ruling, because this court is a court of review. [00:15:02] Speaker 02: And there's an important division of labor between jury, judge, and court of appeal. [00:15:07] Speaker 02: Because there would be no evidence on written description at all without linking evidence from which the jury could have concluded they met their burden. [00:15:14] Speaker 02: Because it's their burden on clearing convincing evidence. [00:15:17] Speaker 02: They have to come forward with something more than putting the patent on the table and saying, and an expert who stops nonsense, and then ask the appeals court to fix it for you. [00:15:27] Speaker 01: Let me add one piece of information to that hypothetical then. [00:15:31] Speaker 01: They point out, and you don't dispute, that there's no specific written description for type identifier. [00:15:38] Speaker 01: That's undisputed, right? [00:15:40] Speaker 01: Or can we just assume that's undisputed? [00:15:42] Speaker 01: No, the actual words type identifier. [00:15:46] Speaker 01: No, I'm not trying to make you give away your case. [00:15:48] Speaker 01: That's what I mean by that. [00:15:49] Speaker 01: There's no dispute that there's no discussion of what a type identifier is in the specification. [00:15:56] Speaker 01: And so they put that piece of evidence in. [00:15:59] Speaker 01: And so all we're left with is a presumption of validity, but also an undisputed fact that the patent doesn't specifically describe in the actual words type identifier. [00:16:12] Speaker 02: Well, we have Dr. Stevenson saying that he would consider the type. [00:16:16] Speaker 01: I'm asking you a hypothetical what we do with only those facts. [00:16:19] Speaker 01: We have a presumption. [00:16:22] Speaker 02: If you have a presumption and you have a conclusion from an expert who lacks credibility, it's as if you didn't testify. [00:16:28] Speaker 01: OK, so we don't have to get to the expert here. [00:16:30] Speaker 01: I can read this patent, and you agreed that there's no specific discussion of type identifier. [00:16:37] Speaker 02: There's not. [00:16:37] Speaker 02: The word type identifier appears only in column one. [00:16:40] Speaker 02: But Mr. Lamb testified that at column five, line 62, an ID number is used to determine whether a device has a communication function or not. [00:16:49] Speaker 02: There are two types of devices. [00:16:50] Speaker 03: Isn't the question here whether one of ordinary skill in the art and reading the specification. [00:16:56] Speaker 03: would find possession of this particular limitation, notwithstanding the fact that there isn't any explicit disclosure of possession? [00:17:04] Speaker 02: Yes, Your Honor, that's it. [00:17:05] Speaker 03: Is that the question we have? [00:17:07] Speaker 02: Yes, that's the in-hoc verbal rule. [00:17:08] Speaker 03: And so you put an expert on, and the expert said, I believe one of our nerds killing the art would read column five, running over to six next, and there find possession therein, correct? [00:17:20] Speaker 02: Correct. [00:17:21] Speaker 04: I'm sorry. [00:17:23] Speaker 04: Your expert, Mr. Lam, did not testify about written description. [00:17:27] Speaker 02: He testified in the opening part of the trial introducing the patent to the jury, going through the specification, and explaining what it disclosed. [00:17:38] Speaker 02: Mr. Stevenson testified. [00:17:42] Speaker 02: And he was a very poor witness. [00:17:44] Speaker 02: And he gave us the admission that a type ID could be a serial number, which is what the jury heard. [00:17:49] Speaker 01: Is there a serial description of serial numbers in the patent? [00:17:52] Speaker 02: He said serial numbers and identification numbers are the same. [00:17:56] Speaker 03: No, no. [00:17:56] Speaker 03: That isn't the answer to Judge Hughes' question. [00:17:59] Speaker 03: Judge Hughes asked you whether or not there's a serial number disclosure in the written description, yes or no? [00:18:06] Speaker 02: The word serial number does not appear, but identification number doesn't. [00:18:09] Speaker 03: Isn't that the correct answer to your question? [00:18:12] Speaker 02: Well, disclosure is what it disclosed to one still in the arc. [00:18:15] Speaker 02: Dr. Stevenson said a serial number was an ID number. [00:18:17] Speaker 01: So what you're trying to say is you added during prosecution to get over invalidity [00:18:24] Speaker 01: objections, the use of type identifier. [00:18:27] Speaker 01: That's not in there. [00:18:29] Speaker 01: Identification number is in, which at least during the prosecution was looked at as a specific identification number. [00:18:37] Speaker 01: And now you're saying that because a serial number can have a type identifier, and that we then go to the next inference that a serial number can be the same as an identification number, that that's enough for written description. [00:18:52] Speaker 02: That's that's one way to get there your honor. [00:18:54] Speaker 02: Yes, and as dr. Stevenson told us that a type ID of the could be a serial number and a serial number could be But it's not necessarily well, he's having two different inferences on top of each other when we can read this pattern [00:19:08] Speaker 01: And we don't see anything like that. [00:19:10] Speaker 01: And we don't have any expert testimony to support it. [00:19:13] Speaker 02: You have to read the patent as one of skill in the art wood. [00:19:15] Speaker 02: And Mr. Lamb said that an identification number in column five was used to determine a video format for the device. [00:19:22] Speaker 03: Did he make that testimony in front of the jury in connection with written description? [00:19:27] Speaker 02: He made a testimony in front of the jury in connection with describing what the patent said in his opening remarks before doing the infringement analysis. [00:19:34] Speaker 01: Do you have a site for that? [00:19:36] Speaker 01: Yes. [00:19:36] Speaker 01: Can we look at that? [00:19:41] Speaker 02: It's column 5, line 62 of the patent. [00:19:45] Speaker 02: We need to pay. [00:19:45] Speaker 03: And yes, yes, yes, yes. [00:19:47] Speaker 03: No, no, no. [00:19:47] Speaker 03: Society has his testimony. [00:19:48] Speaker 02: It has his opening statement. [00:19:52] Speaker 02: Yes. [00:19:52] Speaker 02: It is appendix 20290 to 20291. [00:20:03] Speaker 02: And we addressed it in our brief as well. [00:20:05] Speaker 02: I don't have the page number in front of me. [00:20:07] Speaker 03: You have that in front of you? [00:20:08] Speaker 03: So you're going to read it to us? [00:20:11] Speaker 03: 2 over 2, 90 over 91. [00:20:40] Speaker 02: He's at line 11. [00:20:49] Speaker 02: Well, there are also identification numbers. [00:20:53] Speaker 02: And the upper passage is column three, lines 14 through 21 of the patent. [00:20:57] Speaker 02: And it's basically saying the identification number enables the computer to communicate with the information output device. [00:21:04] Speaker 02: And the patent uses some language from time to time. [00:21:06] Speaker 02: Information output device [00:21:09] Speaker 02: is basically the display screen, and so what is happening here is that the identification number is used to help the computer figure out how to communicate with the display. [00:21:18] Speaker 04: Okay, now you can go to the column 5. [00:21:20] Speaker 02: Yes. [00:21:21] Speaker 02: And then you also have a lower excerpt as well. [00:21:23] Speaker 02: That's referring to column 5, line 62. [00:21:25] Speaker 02: What does that represent? [00:21:27] Speaker 02: Well, this is where I'll try to read this in a format that makes a little more sense. [00:21:30] Speaker 02: This is column 5, line 62 through 67. [00:21:33] Speaker 02: And it basically says, the ID number identifies that the display device having a communication function is connected. [00:21:39] Speaker 02: And in this case, the communication function that they're talking about is an actual video format. [00:21:44] Speaker 02: So the ID number is defining what video format the display is capable of receiving. [00:21:49] Speaker 02: So the ID number identifies the video format. [00:21:52] Speaker 02: Different types of devices have different video formats. [00:21:55] Speaker 02: That was his testimony. [00:21:57] Speaker 02: That was in the record. [00:21:58] Speaker 02: Dr. Stevenson's testimony said that type IDs connect. [00:22:01] Speaker 03: Is he connecting that to an ID number for identifying a type of said display unit? [00:22:07] Speaker 02: Precisely. [00:22:08] Speaker 02: In column 5, line 62, yes. [00:22:09] Speaker 03: No, but I mean, in his testimony there, he's connecting column 5 to the limitation? [00:22:14] Speaker 01: Yes, he is. [00:22:15] Speaker 01: You read all of that to us, but then you made some statements after that that video format necessarily refers to a type of display. [00:22:25] Speaker 01: Where's the testimony on that? [00:22:29] Speaker 01: There was testimony in the case that RGB and... Because this could just as easily be read as using identification number in the way that they're urging, which describes a specific display. [00:22:40] Speaker 01: And it may refer to the fact that that display has a certain type of capacity, but it's still not identifying a type of display. [00:22:48] Speaker 01: It's identifying the capacity. [00:22:52] Speaker 02: There are different video formats. [00:22:54] Speaker 02: which denote different types. [00:22:56] Speaker 02: You don't need to be an electrical engineer to know that answer. [00:22:59] Speaker 02: There was no testimony about this from Dr. Stevenson. [00:23:02] Speaker 02: This is the only testimony in the record on what that version means. [00:23:07] Speaker 01: Where's the testimony that different video formats are equivalent to different types? [00:23:15] Speaker 01: Yes, I believe there was. [00:23:23] Speaker 02: I'll have to pull that out. [00:23:25] Speaker 01: Can I just ask you again, because we're getting into the weeds on this. [00:23:28] Speaker 01: We can talk about it more if you want. [00:23:30] Speaker 01: But let's assume that I agree with you that their expert is no good for the impeachment, although I think he was impeached on things that weren't actually relating to his written description. [00:23:42] Speaker 01: But let's just start with that. [00:23:44] Speaker 01: We don't look at his testimony. [00:23:45] Speaker 01: I don't find anything you're convincing saying to me about your expert's testimony convincing either supporting this. [00:23:51] Speaker 01: So again, we're left with. [00:23:53] Speaker 01: the actual specification itself, and there's nothing in it, and there's presumption of validity. [00:23:59] Speaker 01: Are we still bound just because of that presumption to uphold the jury's verdict, or do we look at this and say, no reasonable juror could read this patent to find a type identifier? [00:24:10] Speaker 02: You've inverted the burden of proof. [00:24:13] Speaker 02: note the question is for the reasonable jury have concluded that lg medics for non-clerical evidence under 282 correction correction taken let's say that's the question we're free to reach that question if it's a no reasonable juror could have refused to find a lack of written description i don't believe so your honor because they have a burden of proof they rested and didn't present any evidence on written description and just go to closing and say here's the pattern jury [00:24:40] Speaker 02: the word type's not there, we win. [00:24:41] Speaker 02: That can't possibly be the way written description is handled, because it has to be dealt with in connection with someone who testifies from the standpoint of one skill in the art. [00:24:49] Speaker 01: But the fact that no type identifier is mentioned specifically is undisputed. [00:24:54] Speaker 01: No, it's disputed. [00:24:57] Speaker 01: Don't argue about this. [00:24:58] Speaker 01: We've already gone over this. [00:24:59] Speaker 01: You agreed that the actual [00:25:02] Speaker 01: term type identifier is not used. [00:25:04] Speaker 01: That's what I mean when I say type identifier is not in there. [00:25:08] Speaker 02: That is correct. [00:25:08] Speaker 02: That was the language that was... And so that's an undisputed fact. [00:25:12] Speaker 02: As is the fact that the examiners at the patent office who are presumed to be knowledgeable about what those who steal in the art would take from a patent agree to this specific amendment during an office interview [00:25:24] Speaker 02: as we get this all the time that they'll grant a patent and so you get the option of validity but we look at it and we can't we say no reasonable person as a matter of law could have found this valid the Siro case says that it's evidence in our favor and this is not the typical case typical case I agree you get a patent with 30 claims that it's been amended 14 times then 10 years later someone's looking at it and somebody says the burden of proof is on the defendants of course it always is this is different we had two examiners [00:25:55] Speaker 02: who presumably know what people of skill in the arts think, who agreed with us and added the type ID because they understood from reading the patent that the patent was broader than just picking a specific number. [00:26:04] Speaker 01: So when you proposed that amendment, did you point to them specifically in the specifications where that amendment was supported? [00:26:11] Speaker 02: I don't recall that one way or the other, Your Honor. [00:26:14] Speaker 01: It wasn't that if you had, that we would have that evidence before us. [00:26:18] Speaker 04: It's just a couple of pages of prosecution history with a block quote of the examiner's interview, but there's no reference that I recall. [00:26:27] Speaker 02: My only point, I think you're right. [00:26:29] Speaker 02: I don't recall there being that, and I agree with you. [00:26:32] Speaker 02: We would have highlighted that if it was there. [00:26:35] Speaker 02: The question is, what would one of skill and the art read? [00:26:38] Speaker 02: The patent office is presumed to have done its job correctly. [00:26:40] Speaker 02: In this case, it wasn't just some oversight or situation where you had a massively long 10-year prosecution. [00:26:47] Speaker 02: You had an examiner making a deal, an agreement with the patentee in the patent office, and that being challenged 10 years later. [00:26:55] Speaker 04: I think we should hear from the other side. [00:26:57] Speaker 04: You'll get an appropriate amount of reflection. [00:27:15] Speaker 00: Good morning. [00:27:16] Speaker 00: May it please the court, Michael Belanco, on behalf of the LG defendants. [00:27:20] Speaker 00: Your honors, my plan this morning is to begin by addressing the only two issues that are entirely dispositive of the appeal. [00:27:26] Speaker 00: These two issues are, first, the lack of written description support for the type identifier limitation, and second, non-infringement based upon the communication controller limitation. [00:27:36] Speaker 00: The court finds for LG on either, it does not need to reach the remaining issues. [00:27:41] Speaker 00: I'll begin with written description. [00:27:43] Speaker 04: You will have taken note that we did not ask for a specific discussion of non-infringement from the other side. [00:27:50] Speaker 04: You can do with that whatever you want. [00:27:52] Speaker 00: Well noted, Your Honor. [00:27:53] Speaker 00: Let me begin with written description. [00:27:55] Speaker 00: Quite simply, there is no written description support for the 180 patents limitation requiring an identification number for identifying a type of display unit. [00:28:05] Speaker 00: To this day, after years of dispute, no party has been able to locate anywhere in the patent specification disclosing a display unit type identifier. [00:28:14] Speaker 00: Simply not there. [00:28:17] Speaker 00: In fact, Montes's expert, Mr. Lam, admitted at trial that there is no express disclosure of the type identifier limitation in the specification. [00:28:27] Speaker 00: With that admission, the burden of production shifted to Mondus, but it never carried that burden, as it provided no evidence to demonstrate written description support. [00:28:37] Speaker 04: Because of this- Can I ask you the same question I asked Mr. Black? [00:28:44] Speaker 04: You start off your whole argument in your brief by saying when identifying number is used in the spec, [00:28:53] Speaker 04: It is absolutely clear this is a unit-specific, unique identifying number for that unit, even if it has, you know, three million identical, they wouldn't be twins, but clones. [00:29:08] Speaker 04: What's your best [00:29:10] Speaker 04: evidence or argument or something for that basic premise, that identifying number, everybody understood or in any event would have to understand to be unique to a particular physical unit. [00:29:27] Speaker 00: A few places in the specification, Your Honor, in response. [00:29:30] Speaker 00: I direct the court to the patent. [00:29:33] Speaker 00: This is an appendix 570. [00:29:36] Speaker 00: column 5, lines 36 to 38. [00:29:38] Speaker 00: That makes clear that it is describing a specific known display unit. [00:29:47] Speaker 00: We also. [00:29:47] Speaker 04: How does that make clear? [00:29:50] Speaker 04: The problem here is, I've converted to this before, this language of unit [00:29:55] Speaker 04: is impossibly ambiguous between, you know, the Michelin XG4 tire 75-R or something, of which, you know, there are millions, and you can say, well, that unit, and I'm just trying to get the most fundamental thing, the distinction between token and type, [00:30:19] Speaker 00: I think column, or rather, figure five is perhaps illustrative on this point, Your Honor. [00:30:26] Speaker 00: So in figure five, we're showing an embodiment where the computer has, associated with it, several different display devices. [00:30:35] Speaker 00: And we can see them here in Figure 5. [00:30:37] Speaker 00: They're 6B, 6C, 6D. [00:30:39] Speaker 00: Each one of those display devices, so there's Display Device 1, Display Device 2, Display Device 3, has its own ID number. [00:30:48] Speaker 00: So ID number 1, ID number 2, and ID number 3. [00:30:51] Speaker 00: So in other words, we're talking about a specific unit that is given its own. [00:30:55] Speaker 04: And they can be three identical displays. [00:30:58] Speaker 00: They could be the same TV as they have their own ID number. [00:31:02] Speaker 00: So the computer knows that it is talking to this. [00:31:04] Speaker 04: Was there a point in the proceedings at which the other side kind of acknowledged that that's what an identification number is? [00:31:14] Speaker 04: Yeah. [00:31:18] Speaker 04: That's my question. [00:31:19] Speaker 00: I think the best evidence we have of that would probably be that, well, we know that Mondus acknowledged that when the amendment was made, that that fundamentally changed the limitation from one identifying a specific unit, like I just discussed, to one identifying a type. [00:31:41] Speaker 00: So that was in their claim construction brief. [00:31:43] Speaker 00: This is that Appendix 6109. [00:31:46] Speaker 00: But more fundamentally, Your Honor, what we have here is that Mr. Lamb admitted that there is no express disclosure of a type identifier. [00:31:57] Speaker 04: Right. [00:31:57] Speaker 04: Of course he said that. [00:31:58] Speaker 04: Everybody understands. [00:31:59] Speaker 04: The word doesn't appear. [00:32:01] Speaker 04: The written description does not require innate verba description. [00:32:07] Speaker 04: So saying that a word doesn't appear is step one, but it doesn't establish the conclusion. [00:32:16] Speaker 04: Why does the substance not appear? [00:32:20] Speaker 00: The substance doesn't appear because the entire specification read from beginning to back is about the idea of associating a specific [00:32:28] Speaker 00: unit, display unit, that the computer has already associated itself with so it knows that it can control it. [00:32:35] Speaker 00: So we're talking about a unit that has been registered with the computer and then that way they know they can communicate. [00:32:42] Speaker 01: And so the computer can identify the specific displays attached to it or any other thing that's attached to it by the identification number. [00:32:52] Speaker 01: Why does that foreclose the additional step though of having a type unit? [00:32:57] Speaker 01: Let me give you an example. [00:32:58] Speaker 01: credit card numbers are unique to each person. [00:33:05] Speaker 01: But almost all credit card numbers have a certain part of the credit card number that will tell you what type it is. [00:33:14] Speaker 01: So when you put in your number, it can instantly say that's a Visa, that's an Amex, or the like, because it recognizes they all use the same [00:33:26] Speaker 01: maybe it's a four-digit code, maybe it's a two-digit code, as part of the unique identification number. [00:33:32] Speaker 01: How do we know that's not what the identification number here is? [00:33:35] Speaker 01: That it identifies a unique unit, but a skilled artist would understand that it also identifies a specific type of unit. [00:33:46] Speaker 00: Well, Your Honor, I understand the hypothetical. [00:33:48] Speaker 00: This specification never discloses anything like that, where you have an identification number. [00:33:53] Speaker 01: No, no, no, no. [00:33:54] Speaker 01: We can stop talking about whether the specification in those words discloses a specific type. [00:34:01] Speaker 01: would a skilled artisan understand nonetheless the term identification number here to be talking about what I was talking about, which was if you have a certain display unit from a certain company that that identification number that's assigned to it has a unique identifier but also a type identifier. [00:34:24] Speaker 00: There's no testimony on the record that would support that. [00:34:26] Speaker 01: Why isn't the testimony that he referred to us about talking about the transcripts that we were just looking about talking about the specific format enough to do that? [00:34:40] Speaker 00: First of all, that testimony never related communication function to a type. [00:34:46] Speaker 00: What Mr. Lam said was that communication function could be a video format. [00:34:50] Speaker 00: That's a term that's never actually used in a specification. [00:34:54] Speaker 00: And what Monda says in his briefing, I believe is saying here also, is that you could then infer from that testimony that it relates to type. [00:35:01] Speaker 00: It's an inference built upon an inference. [00:35:03] Speaker 00: And we know from cases like this Hortz Novartis case [00:35:06] Speaker 00: that implicit disclosure does not satisfy the written description requirement. [00:35:11] Speaker 00: So what we have is no express disclosure and then no testimony that goes beyond the lack of express disclosure. [00:35:17] Speaker 03: Why don't you address your adversary's argument that the evidence given by Lamb at 20290-919293 connects his theory there to the ID number for a type. [00:35:33] Speaker 00: I'll start, Your Honor. [00:35:34] Speaker 03: He just said that to me, right? [00:35:37] Speaker 00: Right, but if you look at that testimony, there's no connection in that testimony or elsewhere from LAM connecting that disclosure to a type identifier. [00:35:46] Speaker 00: It simply says that a communication function could be a video format. [00:35:50] Speaker 00: Again, video format, a term not used in the patent specification, and there's no connection anywhere in this record from that to the type identifier limitation. [00:36:00] Speaker 03: So I suppose then your argument would be that if indeed Montes's reliance on that testimony to show that one of ordinary skill in the art would have understood possession, no reasonable juror could have believed that. [00:36:16] Speaker 00: We would make that argument, Your Honor? [00:36:19] Speaker 03: Even though you didn't challenge. [00:36:22] Speaker 03: You're saying you didn't view that testimony to be related to the written description issue. [00:36:27] Speaker 00: Right. [00:36:27] Speaker 00: It didn't come up in the context of written description. [00:36:29] Speaker 00: It was never discussed, you know, in relation to the portion of the specification they're now pointing to. [00:36:34] Speaker 00: It was never discussed with respect to the type identifier limitation. [00:36:38] Speaker 00: And after that testimony was given by Mr. Lambs, he gave the admission [00:36:43] Speaker 00: that there was no express disclosure. [00:36:45] Speaker 00: At that point, the burden shifted, the burden of production, to Maundis to put on evidence to demonstrate that the written description was supported, and it never did that. [00:36:56] Speaker 03: And so that argument, by the way, Your Honor, the type, the column, or rather... Well, what do you do with the district court judge's opinion here that shows basically the reason why your party loses is that your witness was discredited and the jury could disbelieve anything he said? [00:37:15] Speaker 03: Your Honor, respectfully, we didn't mean... Basically, you have the presumption that comes with an issued patent that it satisfied written description, and you have no evidence that you put in that your witness has been mocked. [00:37:32] Speaker 03: The jury can disbelieve everything your witness said. [00:37:35] Speaker 03: So what more is required among us to save its patent? [00:37:42] Speaker 00: A few responses, Your Honor. [00:37:44] Speaker 00: Respectfully, we did not need our expert, Dr. Stevenson, to support the lack of registrations. [00:37:49] Speaker 03: Just take it sequentially. [00:37:50] Speaker 03: You say here the question is whether or not there is no disclosure in the patent of the specific possession. [00:37:57] Speaker 03: Would one of our ordinary skill in the art have made that reference? [00:38:02] Speaker 03: I think your argument has to be that the jury didn't receive any evidence relevant to that question. [00:38:07] Speaker 00: That's correct. [00:38:08] Speaker 00: I agree, Your Honor. [00:38:09] Speaker 03: But it has to be your case. [00:38:10] Speaker 03: Otherwise, anything that their expert said, jury could have understood it. [00:38:16] Speaker 03: And the correct charge was given to the jury on this issue. [00:38:22] Speaker 00: That is correct, Your Honor? [00:38:23] Speaker 03: The jury found anything that was said by [00:38:28] Speaker 03: moaned us here about what one of ordinary skill and art thinks this patent is all about, they're entitled to believe it because your challenge to their testimony is irrelevant because your witness failed. [00:38:42] Speaker 00: Respectfully, Your Honor, our position is that with Mr. Lamb's admission that there's no express disclosure in the patent, he would have needed to provide some sort of testimony explaining why, absent express disclosure, one of skill would have understood the type identifier limitation to somehow be satisfied by the patent. [00:38:59] Speaker 04: What's your best case or two for that proposition, whether it's called burden shifting or something else? [00:39:07] Speaker 00: Tech licensing is is the case that we say it's 5 45 f 3rd 16 or 13 16 rather and the pin site is 1329 that talks about the burden shifting in the context of 112 argument and another set of cases that I would point the court to are the University of Rochester and the Senate court cases and [00:39:31] Speaker 00: Those cases stand for the proposition that a patent may be invalid for lack of written description support based upon the four corners of the specification alone. [00:39:41] Speaker 00: And so here we have a patent where we all acknowledge, I believe, that there's no express disclosure of the type identifier limitation without cogent testimony to somehow describe why one of skill would understand the limitation to be supported nonetheless if the patent is invalid. [00:39:59] Speaker 01: Let me try it this way. [00:40:01] Speaker 01: This is the way I'm thinking about it is the district court's right to disregard your expert testimony because, or say they could disregard your consumer speech. [00:40:11] Speaker 01: The stuff we looked at on 2090 [00:40:14] Speaker 01: 2290 and 91 doesn't get there for me either, because it's not talking about connecting the data display format to a type identifier. [00:40:25] Speaker 01: So we have no test. [00:40:27] Speaker 01: Let's just assume we have zero testimony explaining how an identification number could be a type identifier. [00:40:35] Speaker 01: All we have at best in terms of testimony beyond the patent itself is an agreement that [00:40:44] Speaker 01: Actual word type identifier is not explicitly in the specification that doesn't solve the game necessarily but if all we have is the presumption of validity and [00:40:58] Speaker 01: the fact that type identifier itself is not explained in actual words in the specification. [00:41:04] Speaker 01: The jury also has the specification itself as evidence. [00:41:08] Speaker 01: So that's the universe we're looking at to review this, what the specification says, and this acknowledgment that there is no actual description of type identifier using that phrase. [00:41:23] Speaker 01: Could the jury nonetheless [00:41:25] Speaker 01: find that the identification number as used in the specification be that type of identifier? [00:41:35] Speaker 00: No, they couldn't, Your Honor. [00:41:36] Speaker 00: In order for that to even be possible, the jury would need to essentially perform an obviousness type analysis. [00:41:43] Speaker 00: And obviousness does not equate to written description support. [00:41:47] Speaker 00: We've cited cases in our briefing for that proposition. [00:41:49] Speaker 00: Power Oasis is one of them. [00:41:51] Speaker 00: The Ariad case is another case. [00:41:53] Speaker 00: it would require making inferences that are simply not supported by the specification itself, and there's no testimony to guide the jury to make those inferences. [00:42:03] Speaker 00: And so they'd be engaging in an obviousness-type inquiry that's not permitted to satisfy written description. [00:42:11] Speaker 04: address the following. [00:42:15] Speaker 04: What's plausible coming away from this patent at some high level? [00:42:23] Speaker 04: And maybe the high level is wrong. [00:42:25] Speaker 04: So if, as I think a bunch of the testimony talks about this patent and its family as being fundamental to plug and play, [00:42:36] Speaker 04: How does it make sense to have the billion units of displays made in 2019 have their numbers [00:42:53] Speaker 04: in the memory of video set-top boxes that were put in people's houses in 2016, as opposed to some more type information which you could put into the set-top box to say the following kind of families of units are going to be ones that you can communicate with. [00:43:20] Speaker 00: I think I understand the question, your honor. [00:43:22] Speaker 00: Let me try and address it. [00:43:23] Speaker 00: There's communication between the display units and the video source, which would be like the DVD player, for example. [00:43:31] Speaker 00: That communication in the scenario we're talking about here is controlled by the video source. [00:43:36] Speaker 00: It communicates information back and forth with the display unit and then determines whether it can control it and how to provide information. [00:43:47] Speaker 00: And so it's that communication once the video source is connected to the display unit that kicks off the process. [00:43:54] Speaker 00: And that's what the specification describes as well, is that the two units communicate with each other and then an identifier is stored in the memory of one or the other. [00:44:02] Speaker 04: When the display, this is I think what's in column two or three about the reverse direction, so some of it is about the computer sending its ID number to the display so the display can make sure it's not being misused by some bad guy computer. [00:44:20] Speaker 04: But then this is the reverse, right? [00:44:22] Speaker 04: That the display sends its ID number to the computer so that the computer can know what to use to communicate with it. [00:44:32] Speaker 04: How does the computer know that without having in its possession what amounts to a type identifier? [00:44:41] Speaker 04: That this number is one of the ones that I can communicate with, which it couldn't possibly have. [00:44:49] Speaker 04: The computer couldn't possibly have that number three years before that unit got its own number. [00:44:57] Speaker 00: Your Honor, I'd say with respect to this patent, [00:45:00] Speaker 00: All of that is not required. [00:45:03] Speaker 00: Simply the requirement is that the video source can communicate with the display unit. [00:45:09] Speaker 00: By knowing this is one of the units that has registered with me, I can communicate with it. [00:45:14] Speaker 00: And that's what this patent would require. [00:45:15] Speaker 03: Could you just give me an example of a type of said display unit? [00:45:20] Speaker 03: It's not whether it's a color or a black and white TV, right? [00:45:24] Speaker 00: We made the argument no at trial, correct your honor. [00:45:28] Speaker 03: What is it? [00:45:29] Speaker 00: Not clear, not disclosed in this specification. [00:45:32] Speaker 00: So it's quite ambiguous. [00:45:35] Speaker 00: And we had argued at trial that, in addition to our argument on written description, that all the things that Mondus was pointing to, which included things like RGB type, were characteristic information, a separate limitation in the patent. [00:45:51] Speaker 03: The file history of the patent didn't tell you anything? [00:45:54] Speaker 00: No, Your Honor. [00:45:55] Speaker 03: File history of the patent is... Why they had to make this change? [00:46:01] Speaker 00: They made this change to overcome the sawed-in prior art reference, Your Honor. [00:46:06] Speaker 03: Usually you can look at the prior art reference and see what it was and see why you're making the amendment to get over it and get some clue as to what it means. [00:46:14] Speaker 00: Oh, I'm sorry, Your Honor. [00:46:15] Speaker 00: I maybe didn't understand your question. [00:46:17] Speaker 00: So the prior art disclosed, or it was alleged in prosecution, the prior art disclosed the identification of a specific unit. [00:46:25] Speaker 00: And so to get over that prior art rejection, Montes added the limitation, will you identify a type of set identifier, as opposed to identifying a specific [00:46:36] Speaker 00: And again, Mondas admitted that that amendment changed the limitation to go from specific unit to a type of unit. [00:46:47] Speaker 04: Can you talk about damages? [00:46:48] Speaker 00: Yes, Your Honor. [00:46:51] Speaker 00: There are two independent bases to support the vaguer of the first trial damages award. [00:46:59] Speaker 00: First is lack of apportionment, and the second is prejudicial skewing of the damages horizon. [00:47:05] Speaker 00: First, Monis failed to apportion its one size, one price for all patent family licenses to reflect the incremental value of just the 180 patent and no more as required by Erickson. [00:47:19] Speaker 00: This court's Omega decision rejects the notion of apportionment being built into a one price for all license and the district court... I'm sorry, Omega is not that broad. [00:47:31] Speaker 04: Omega Omega does not say you can never have a one price for all and and Right, it says in that case. [00:47:42] Speaker 04: There was zero evidence of how to Separate values in a kind of large and undifferentiated family and it wasn't enough for the patent owners simply to say this is our practice but that leaves a vast [00:47:59] Speaker 04: field of unanswered questions. [00:48:03] Speaker 00: Correct, Your Honor. [00:48:04] Speaker 00: And let me be a little bit more specific, Your Honor. [00:48:06] Speaker 00: We're not making the argument, and the district court didn't either. [00:48:11] Speaker 00: The district court recognized this, that you can start with a one price for all license and then from that analyze it and arrive at the value of just one patent. [00:48:22] Speaker 04: So what would you do about the following hypothetical? [00:48:27] Speaker 04: There are two patents. [00:48:31] Speaker 04: Somebody to make a product would absolutely have to have permission to practice both. [00:48:38] Speaker 04: The value of each one of those by itself is zero. [00:48:43] Speaker 04: Nobody would pay a dime for any of it because they still couldn't make a product. [00:48:48] Speaker 04: With both, they can proceed. [00:48:52] Speaker 04: What is one supposed to do if the patent owner decides for litigation simplicity reasons [00:49:00] Speaker 04: to press one of the patents and not the other in litigation. [00:49:08] Speaker 00: Under the facts of that hypothetical, one would need to look at what the incremental value added to the technology was for one of the patents. [00:49:16] Speaker 04: Both are zero. [00:49:18] Speaker 04: Each one is the same incremental value over the other. [00:49:22] Speaker 00: It, Your Honor, I submit that their value doesn't need to be directly tied to the standard. [00:49:27] Speaker 00: One would have to look at the technical. [00:49:29] Speaker 04: I said nothing about standards. [00:49:31] Speaker 04: I said nobody could make a product that anybody would buy or enough people would buy to cover the costs of making it without practicing both of the patents. [00:49:45] Speaker 00: And I apologize, Your Honor. [00:49:46] Speaker 04: Which means each one by itself is worth a zero. [00:49:50] Speaker 04: Together, [00:49:51] Speaker 04: They're worth something. [00:49:53] Speaker 04: What are you supposed to do in a case in which one, but not the other of the patents is asserted? [00:50:01] Speaker 00: You would still need to apportion down. [00:50:03] Speaker 04: We know what the answer to the, to the apportion down. [00:50:07] Speaker 04: Each one is worth zero by itself together. [00:50:10] Speaker 04: They're worth something together. [00:50:11] Speaker 04: I mean, I'm genuinely completely stumped about how to think about that fairly, um, you know, elementary problem. [00:50:21] Speaker 00: And standing here right now, I'm not sure either, Your Honor, but I can tell you that's not the situation that we had in this case, where we know that the family had value even before the 180 patent issue. [00:50:34] Speaker 00: There were 12 licenses to the family before the 180 patent even issue. [00:50:40] Speaker 04: That's true in my hypothetical, too. [00:50:43] Speaker 04: Of course there's value when you have all the ones you need. [00:50:46] Speaker 00: But not the 180 patent. [00:50:47] Speaker 00: That's the critical piece here. [00:50:49] Speaker 00: Before the 180 patent even issued, there were 12 licenses for the full family rate. [00:50:55] Speaker 00: That covered continuations. [00:50:57] Speaker 00: But the 180 patent hadn't issued yet, and it wasn't... So what? [00:51:02] Speaker 04: The original licenses covered continuations of which this is one. [00:51:06] Speaker 00: And Your Honor, what I'd submit is the value of the license didn't increase when that continuation matured into an actual patent. [00:51:15] Speaker 04: Because it made sense in this context, perhaps, perhaps, for the reason that my hypothetical is built on, that perhaps this is a situation in which [00:51:26] Speaker 04: No product could be made without the two or all of them, the whole family because they're all kind of common core invention and a product could be made if you have all of them. [00:51:42] Speaker 00: And your honor, though, what we have. [00:51:45] Speaker 04: I don't know. [00:51:46] Speaker 04: I've yet to hear an explanation of what it even means, conceptually, to apportion in that situation. [00:51:53] Speaker 04: Now, it's a different question if you want to say, this isn't that situation because there wasn't evidence that this is a situation in which no product could be made without the missing members of the, without practicing the missing members of the family. [00:52:08] Speaker 04: But you haven't said that yet. [00:52:11] Speaker 00: What we do know, Your Honor, is that there were other blocking patents, and I'll relate it to the standard. [00:52:17] Speaker 00: I know that wasn't part of Your Honor's hypothetical, but there was testimony that at least four, actually four and a half of the family members of the 090 patent family blocked the ability to the standard. [00:52:29] Speaker 00: And so assigning all of the value of the family rates purely to the 180 patent in this [00:52:37] Speaker 00: Record doesn't doesn't make sense. [00:52:39] Speaker 00: And another point I'd like to raise just so the record is clear is My how do you think somebody should have gone about doing what you consider a proper apportionment? [00:52:50] Speaker 04: Right is this it's a pretty general idea that it's hard to beat something with nothing what's what's What is your your? [00:52:59] Speaker 04: Practical suggestion about what should have been done [00:53:02] Speaker 00: Well, in our case, what our expert did, and in fact, it's an approach that Mondis adopted in the retrial, was it took the family rate and it divided it by the patents in the family that our expert concluded had value to Mondis. [00:53:18] Speaker 00: And so that was several of the members of the family that it valued, and it divided the rate equally between those patents. [00:53:25] Speaker 00: That was the approach that was undertaken. [00:53:29] Speaker 00: And if I may, Your Honor, I just want to make sure I make this point. [00:53:33] Speaker 00: Mr. Black mentioned that there was a license of record, the Hanhai license, that reflected the value of just the 180 patent. [00:53:40] Speaker 00: That's not the case. [00:53:43] Speaker 00: Section 4.4 of the Hanhai agreement indicates that if any of the licensed patents is invalidated, the full rate remains so long as one patent in the family remains valid. [00:53:57] Speaker 00: there were several patents listed in that provision specifically. [00:54:01] Speaker 00: And so even if the 180 patent, the patent at issue here, was invalidated, but one of the other family members remained valid, the full rate applied. [00:54:10] Speaker 00: So taking from that, that there was a license for just the 180 patent that valued the 180 patent at the full family rate is not supported by the Hanhai license. [00:54:19] Speaker 00: And then that supports us. [00:54:20] Speaker 04: So I'm not following [00:54:23] Speaker 04: Why what you just said is an answer to what I took Mr. Black's point to be, which is that 4.4, the Hanhay license says that if you had a situation where the only patent left standing was the 180, this is the price for it. [00:54:43] Speaker 04: Why is that not a 180 specific price? [00:54:48] Speaker 04: Because it happens to be a price that's shared by all kinds of other permutations. [00:54:55] Speaker 00: And that's precisely it, Your Honor. [00:54:56] Speaker 00: So that cannot represent the entire value of the 180 patent when, if the 180 patent is invalidated, the full rate remains. [00:55:07] Speaker 00: And what we're trying to do here is [00:55:09] Speaker 00: portion down the incremental value added by just the 180 patent. [00:55:13] Speaker 00: That's stepping back from the license. [00:55:16] Speaker 04: And how do you think that, I think I asked this before, but tell me again, how do you think that should have been done? [00:55:23] Speaker 00: What our expert did was it took the full family rate and divided it by the patents that he determined had value based on the indices. [00:55:33] Speaker 04: you know, addition is simple. [00:55:34] Speaker 04: Simplicity doesn't mean it's economically sensible. [00:55:37] Speaker 04: Why does it make any economic sense just to divide it? [00:55:41] Speaker 00: All those patents high value, they block the ability to practice the standard. [00:55:44] Speaker 04: They were... Right, but you have to eliminate the effect of standardization from the valuing, which I know you've positively insisted on. [00:55:56] Speaker 04: And there was evidence on the other side that actually [00:55:59] Speaker 04: They weren't relying just on the fact that this was standardized. [00:56:03] Speaker 04: The standard here followed the incredible value of the plug and play. [00:56:09] Speaker 04: Not simply so that the value was inherent in the technology, not in the fact that it had been standardized. [00:56:17] Speaker 04: So, I'm sorry, I'm still not sure how you think a economically sound process [00:56:27] Speaker 04: or analysis would have worked to value this one member of the, I guess the 180 family, or the 090 family, or whatever it was called, whichever the first patent was. [00:56:39] Speaker 00: I submit, Your Honor, that the way that it was done here by our expert was appropriate, which is to divide the value between the patents in the family that had value commandus. [00:56:50] Speaker 00: And if I may, Your Honor, I know my time's running short. [00:56:55] Speaker 00: There is another basis to affirm the district court's vacator of the first trial damages award, and that's the skewing of the damages horizon, which was a separate basis the district court included in its opinion for why the damages verdict should be vacated. [00:57:10] Speaker 00: Mondis didn't address it in its opening brief, but quite simply, this was a case quite like Laser Dynamics and Unilock, where Mondis [00:57:18] Speaker 00: took what it was asking for the license, compared it to the total $10 billion revenue that LG had made for its televisions, and that skewed the damages horizon for the jury. [00:57:29] Speaker 00: So that's a separate basis for supporting the naked eye. [00:57:33] Speaker 04: OK. [00:57:33] Speaker 00: Are there no further questions? [00:57:34] Speaker 04: Thank you very much. [00:57:35] Speaker 04: We'll hear. [00:57:37] Speaker 04: Why don't you start, and we'll see how we go. [00:57:42] Speaker 04: 10-ish minutes. [00:57:43] Speaker 02: Whatever you're willing to give me, that I don't overstay my welcome. [00:57:49] Speaker 02: Just quickly on the damages point, it does create an interesting economic issue. [00:57:54] Speaker 02: And the trouble at trial and with their theory is they're sort of treating patents like buying apples at the store. [00:58:01] Speaker 02: If you buy one, it's one price. [00:58:03] Speaker 02: If you buy two, it's two or three. [00:58:06] Speaker 02: But what you're really getting is freedom from suit. [00:58:09] Speaker 02: And when there are continuation patents involved, all off the same specification, you are most of the time going to find that what the licensee is really buying is one invention, different variations on the theme. [00:58:22] Speaker 02: Now, that's different from most of the license cases you see, Omega and some of the others, where you have a license that's got multiple families and different inventions, and you've got to somehow find a way to get down to what would be in the hypothetical negotiation. [00:58:37] Speaker 02: But when it comes to a [00:58:39] Speaker 02: a set of continuation patents on the same spec with claims that sometimes don't vary very much, there must be a way to do it. [00:58:46] Speaker 02: And we think we did it the best way appropriate. [00:58:48] Speaker 02: And we did provide evidence with respect to the relevance of the 180 to the family. [00:58:54] Speaker 02: With respect to the written description point and your question, Judge Hughes, about video format, [00:59:03] Speaker 02: In the background of the patent, there's a discussion about the problem that was being solved here by the patent. [00:59:09] Speaker 02: And it relates in part to what were then multi-sync monitors, which could run at different frequencies and with different inputs that were needed to make them work. [00:59:19] Speaker 02: And the multi-sync monitors would kind of detect what signal they were receiving, hope that they had the right [00:59:26] Speaker 02: hardware in order to respond to that video format information and proceed from there. [00:59:32] Speaker 02: The problem simplified that by allowing for an identification number to be sent in one direction or the other. [00:59:39] Speaker 02: That was in the background of the invention in column one, and that's actually the reference to type in column one. [00:59:44] Speaker 02: It's to multi-sync monitors and how those operate. [00:59:48] Speaker 02: There was testimony on this from Mr. Lam. [00:59:51] Speaker 02: at 20369, where he said that historically, displays use type IDs to generate compatible signals. [01:00:01] Speaker 02: And he matched that up with this multi-sync problem and with different video sources needed, which is a video format. [01:00:10] Speaker 02: Also, you asked where in the record there was evidence. [01:00:12] Speaker 04: So I think I'm remembering reading that testimony and having the thought pass through my mind [01:00:20] Speaker 04: Why doesn't that suggest, maybe suggest rather strongly, that the rest of the specification in talking about what the new invention was, was in fact to move away from type information? [01:00:35] Speaker 02: No, no, because the issue was that they were not sending, the multi-sink monitors were detecting the signal. [01:00:43] Speaker 02: based on frequency information, which is inefficient. [01:00:46] Speaker 02: You could only have a certain number of things in the memory that would allow it to configure properly, and you were limited in how it could connect to certain things. [01:00:58] Speaker 02: It could only handle certain video formats. [01:01:02] Speaker 02: This allowed for just sending a number across, just one number, and then devices would know how to react to each other. [01:01:10] Speaker 02: And as your honor pointed out, this was trying to solve an industry-wide problem. [01:01:16] Speaker 02: And therefore, as new monitors come out in the years in the future and connected, you need a way in order to make sure that they coordinate together. [01:01:25] Speaker 02: The column five discussion about the use of an identification number to distinguish between devices that had a communication function and those that did not. [01:01:35] Speaker 02: And Mr. Lam said that means a video format was getting to that problem. [01:01:39] Speaker 02: LG's theory of the case was that identification number could only mean a specific number for a specific unit. [01:01:47] Speaker 02: But Dr. Stevenson testified to the contrary. [01:01:51] Speaker 02: And Mr. Lamb testified that identification. [01:01:54] Speaker 04: Just to be clear, if I remember the Stevenson testimony that you're relying on, what he said was that there's a serial number. [01:02:01] Speaker 04: A serial number is, in fact, unique to the unit, but embedded within it. [01:02:07] Speaker 04: This is what Judge Hughes was talking about on the credit cards. [01:02:10] Speaker 04: You can have area codes in the old landline days or addresses in which you say city and state. [01:02:15] Speaker 04: That's all type information that's embedded in a unique identifier. [01:02:21] Speaker 04: And I thought what Mr. Stevenson, Dr. Stevenson said was that serial numbers, of course, can have that information embedded. [01:02:30] Speaker 04: in it, but not that it was anything other than a unit, unique nump. [01:02:42] Speaker 02: was not that. [01:02:43] Speaker 02: He didn't say that. [01:02:44] Speaker 02: That's maybe an interpretation you're putting on that testimony, but the jury's not required to accept that. [01:02:51] Speaker 02: When he said that the type ID of the claim could be a serial number, and a serial number is an identification number. [01:02:59] Speaker 04: Which could have type information. [01:03:01] Speaker 02: It could be, yeah, is what he said earlier. [01:03:03] Speaker 02: Right. [01:03:03] Speaker 02: And everybody in the courtroom heard him. [01:03:05] Speaker 02: The judge heard him. [01:03:06] Speaker 02: We heard him. [01:03:07] Speaker 02: The jury heard him. [01:03:09] Speaker 02: And they were entitled to interpret that evidence as being contrary to his other positions that he had taken. [01:03:15] Speaker 03: Even though they were also entitled to disbelieve in what he said? [01:03:18] Speaker 03: Correct. [01:03:19] Speaker 03: So how do they decide which piece of his testimony to believe and which not? [01:03:24] Speaker 02: That is the way our jury system works. [01:03:26] Speaker 02: That's why we have a division of labor between judge, jury, and appellate court. [01:03:32] Speaker 02: And respectfully, we believe that decides in this case on written description, because they had the burden on clear and convincing evidence to establish the patent was invalid. [01:03:43] Speaker 02: Someone who's still in the arc reading it would not understand the claims to be supported. [01:03:47] Speaker 02: At the patent office, the two examiners got it wrong. [01:03:50] Speaker 02: And when they put up a defective witness who's impeached, they just can't meet their burden with that. [01:03:57] Speaker 02: And the argument we've had today doesn't [01:04:02] Speaker 02: address that issue. [01:04:03] Speaker 02: They did not meet their burden of proof by clearing condensing evidence. [01:04:06] Speaker 01: Can I ask you, this is beyond this case, but are there other cases out there involving this patent that are going to be affected by the written description termination here, or the damages determination model that we come up with, or is this it? [01:04:21] Speaker 01: This is it. [01:04:23] Speaker 01: The licensing program is over, LG, the last case. [01:04:27] Speaker 01: So we're arguing about the difference between $14 million and however many million dollars on the second appeal. [01:04:35] Speaker 01: And what we're doing is not going to affect any other case. [01:04:39] Speaker 02: It will not affect any other case, as Pat has expired. [01:04:42] Speaker 02: And it's been licensed to everybody. [01:04:45] Speaker 02: LG is licensed once to LG. [01:04:47] Speaker 02: This is the last case. [01:04:50] Speaker 02: We would also ask that the court look at the interest decision here, which we think the judge awarded us the lowest interest rate [01:04:57] Speaker 02: in the last 10 years, probably maybe ever in the third circuit and on remand if there is one, we would ask that you look at interest as well. [01:05:05] Speaker 02: That's all I have to say. [01:05:07] Speaker 04: Thank you very much. [01:05:07] Speaker 04: Thanks to all counsel. [01:05:09] Speaker 04: Casey.