[00:00:00] Speaker 03:
The next case for argument is Optis Cellular Technology versus Apple, 22-1904.

[00:00:06] Speaker 03:
Good morning.

[00:00:09] Speaker 04:
Please proceed.

[00:00:11] Speaker 04:
Good morning and may it please the court, Mark Fleming from WilmerHale on behalf of Apple.

[00:00:16] Speaker 04:
I would focus on three legal errors, any one of which requires a remand of the whole case.

[00:00:22] Speaker 04:
The liability verdict, the ineligibility of the 332 patent,

[00:00:26] Speaker 04:
and the indefiniteness of claim one of the 557 patent.

[00:00:30] Speaker 04:
If time allows, I'd also like to address the inadmissibility of the Qualcomm agreements.

[00:00:35] Speaker 03:
What about starting with the UK decision of last week?

[00:00:39] Speaker 03:
Because we were kind of waiting for a 28-J from either of both of you.

[00:00:44] Speaker 03:
I mean, you had put this issue before us in terms of the status of that early on in these proceedings.

[00:00:51] Speaker 03:
And the opinion's public.

[00:00:54] Speaker 03:
We got it.

[00:00:55] Speaker 03:
But we were waiting to hear from you in terms of what the relevance or impact or consequence or whatever.

[00:01:02] Speaker 04:
So the court has denied our request to stay proceedings in this case pending the UK proceedings.

[00:01:07] Speaker 04:
So in terms of the issues that we're here to argue today, it does not have any impact.

[00:01:11] Speaker 04:
The UK Court of Appeal increased, among other things.

[00:01:15] Speaker 00:
The UK action has no impact.

[00:01:19] Speaker 04:
The decision that came out last week has no impact on the issues I'm here to argue today.

[00:01:23] Speaker 04:
It increased the royalty rate for a global portfolio above what the trial judge had assessed, below the amount that Optus had requested.

[00:01:33] Speaker 04:
Both parties, I understand, have the opportunity to seek further appeal from the UK Supreme Court.

[00:01:38] Speaker 04:
But it doesn't affect any of the issues I'm here to argue today.

[00:01:41] Speaker 03:
Well, so what happens now?

[00:01:43] Speaker 03:
There's just an appeal process, as there is here, to a higher court.

[00:01:46] Speaker 03:
Wasn't there a requirement under the opinion, which we've all read, that required additional briefing within seven days and suggested that the court was going to do a further analysis, that this wasn't the final word?

[00:01:59] Speaker 04:
That is taking place as we speak.

[00:02:02] Speaker 04:
There have been further submissions that I believe are going to be made to the UK court.

[00:02:07] Speaker 04:
regarding the terms of a court-ordered license.

[00:02:11] Speaker 04:
And that process is going to continue in the Court of Appeal.

[00:02:14] Speaker 04:
And then following that, there will be a time for either party to seek leave for further review to the UK Supreme Court.

[00:02:20] Speaker 00:
Let's go back.

[00:02:20] Speaker 00:
I'm a little baffled here.

[00:02:22] Speaker 00:
You say that the UK judgment has no bearing in this proceeding.

[00:02:31] Speaker 04:
Well, the UK proceeding as a whole might ultimately have a bearing, and that's what we said in our... All right.

[00:02:37] Speaker 00:
Let's say we were to reverse the trial court below.

[00:02:42] Speaker 00:
Would that have an effect, would the UK judgment at that point in time have bearing?

[00:02:48] Speaker 04:
It may well at such time when there is an ultimate license.

[00:02:53] Speaker 04:
So the proceeding ultimately in the UK is to determine the terms of a friend license to Optus' global portfolio.

[00:03:02] Speaker 00:
But the judgment makes clear that the UK court is looking at this case and looking at what the Federal Circuit is going to do.

[00:03:12] Speaker 00:
I'm baffled by your statement that it doesn't really matter.

[00:03:17] Speaker 04:
No, I'm not here to say that the proceeding doesn't matter.

[00:03:20] Speaker 04:
I'm saying it doesn't affect the issues under US law with respect to the five US patents in this case, which this court is reviewing based on the briefing that it has received.

[00:03:31] Speaker 04:
It may well be, and this is what we indicated in our briefing, it may well be that at such time as there is,

[00:03:38] Speaker 04:
a final court-determined license in the U.K.

[00:03:41] Speaker 04:
that covers the five U.S.

[00:03:43] Speaker 04:
patents at issue in this case, that we would approach whether it's this court or whether it's the district court if this court demands for further relief based on that.

[00:03:51] Speaker 04:
That's why we suggested that the court stay proceedings in order to see what the end game in the U.K.

[00:03:57] Speaker 04:
would be.

[00:03:58] Speaker 04:
The court has denied that motion.

[00:03:59] Speaker 03:
I'm not here to re-argue that.

[00:04:02] Speaker 03:
The thing that obviously jumped out off the pages of this opinion for our purposes is the fairly extensive discussion with regard to grounds 23 and 24 about what went down in ED Texas and what's likely to happen here at the Court of Appeals.

[00:04:21] Speaker 03:
And are you all

[00:04:23] Speaker 03:
comfortable with that analysis, which seems to have at least given some effect to principles of comedy and some effect to even establishing in paragraph 257 a floor based on the verdicts that are now at issue before us.

[00:04:42] Speaker 04:
So I must confess, I'm not a UK qualified lawyer, nor am I read into what, and I'm not even sure, that Apple has determined what further steps it's going to take in the UK, seeing that opinion, which is fairly fresh.

[00:04:55] Speaker 04:
And so those are definitely steps that are going to have to be considered on the advice of UK Council.

[00:05:01] Speaker 04:
Fair enough.

[00:05:03] Speaker 04:
I'd answer the question more fulsomely if I had an answer.

[00:05:07] Speaker 04:
I'm afraid I just don't have the answer.

[00:05:09] Speaker 00:
I do think that this has bearing.

[00:05:14] Speaker 00:
whether it has actual determination that's contrary to this or not.

[00:05:21] Speaker 00:
But this does have bearing on this proceeding.

[00:05:24] Speaker 00:
And I think you would have been well for counsel to at least notify the court with a letter and with some sort of statement as to if you think it doesn't matter, then that would have been good for you to notify the court on.

[00:05:37] Speaker 04:
I take the point, Judge Raina.

[00:05:39] Speaker 04:
And I'm sorry that we didn't do that in retrospect.

[00:05:42] Speaker 04:
The reason we didn't.

[00:05:44] Speaker 04:
is because the court had denied our motion to postpone the proceedings and ultimately the issues that we're going to argue today that we briefed are not issues that are affected by this decision by the Court of Appeal in the UK.

[00:06:06] Speaker 02:
damages, evidence.

[00:06:10] Speaker 02:
I'm just wondering if the UK situation that we've started with might suggest that if you prevail on any of the issues you're raising, and we were to say, hypothetically, there had to be a new trial on liability and or damages.

[00:06:28] Speaker 02:
Should we be careful about jumping in and addressing your damages, evidence, admissibility, abuse of discretion issues?

[00:06:37] Speaker 02:
Given that, in my hypothetical, there'd be a new trial anyway, who knows what damages evidence either side is going to want to present.

[00:06:44] Speaker 02:
And that issue is very much front and center and being litigated in the UK.

[00:06:49] Speaker 02:
Might that be a reason that we should just stay away from those issues, which are near the end of your briefing?

[00:06:54] Speaker 04:
So they're near the end, because liability and damages typically are sequenced in that way.

[00:06:59] Speaker 04:
But I do want to make sure, if I can, that I can at least address the admissibility of the Qualcomm agreements, because I think that is important for guidance.

[00:07:06] Speaker 02:
And to answer the question, yes.

[00:07:09] Speaker 02:
Is it unnecessary to reach them?

[00:07:12] Speaker 02:
And even if unnecessary, might we be well advised?

[00:07:15] Speaker 04:
not to reach them, again, on the theory, hypothetically, that you were getting a new trial anyway.

[00:07:30] Speaker 04:
for this Court to provide guidance, particularly if it concludes, as I hope it will, that the Qualcomm agreements are manifestly not comparable and should not have been admitted.

[00:07:40] Speaker 04:
That, of course, is a matter of US law and a matter of this Court's jurisprudence.

[00:07:45] Speaker 04:
It's not affected by anything that the UK Court has done.

[00:07:48] Speaker 04:
And in fact, I think as all members of the panel have acknowledged, the UK Court is

[00:07:53] Speaker 04:
uh... very mindful of what's going on here just as this court is mindful of what's going on in the u k but neither court at least so far has suggested that uh... the issue of admissibility of evidence should be covered by anything other than internal domestic law which is all we're asking for

[00:08:09] Speaker 03:
Okay, well, I know you're dying to get to your three, and I've already forgotten what the three points were, but I promise we will let you.

[00:08:15] Speaker 03:
But just to kind of follow up on Judge Start's thing about where we're left at the end, because I don't know if I'll have time to get to it.

[00:08:22] Speaker 03:
You raise among your million issues infringement stuff.

[00:08:26] Speaker 03:
And if in fact, hypothetically, our conclusion would be that there needs to be a new trial, then that infringement stuff, those infringement allegations go away, right?

[00:08:36] Speaker 04:
They can.

[00:08:37] Speaker 04:
We can try them again.

[00:08:38] Speaker 04:
Obviously, I would welcome any opportunity to discuss anything that the court is interested in, because if there are fewer patents going back for a new trial, that saves further issues in any subsequent appeal.

[00:08:46] Speaker 03:
No, but some of the details on the advocacy of the infringement finding

[00:08:50] Speaker 04:
If it's going back for a new trial on liability and damages, perhaps with the ineligible patent taken out, for instance, then yes, I agree the court can leave that for another day.

[00:08:59] Speaker 03:
So start with your three points.

[00:09:00] Speaker 03:
I know first was liability, and I lost track of the verdict.

[00:09:03] Speaker 04:
The first is the verdict form.

[00:09:05] Speaker 04:
After that is ineligibility of the 332, and then the indefiniteness of the means plus function claim.

[00:09:11] Speaker 03:
Over our objection... I'm sorry, I've got to stop here.

[00:09:13] Speaker 03:
What about the indefinite, the 332, but you've got another validity contention too?

[00:09:19] Speaker 04:
So the 332 is the ineligibility argument under 101.

[00:09:22] Speaker 04:
And then you've got an indefiniteness thing.

[00:09:24] Speaker 04:
The means plus function of claim one of the 557.

[00:09:26] Speaker 04:
Yes, I'd love to cover all of them if the court will allow.

[00:09:30] Speaker 04:
So starting with the verdict form.

[00:09:31] Speaker 04:
Over our objection, it collapsed multiple infringement causes of action into a single verdict question covering five patents.

[00:09:39] Speaker 04:
And that produced two errors.

[00:09:40] Speaker 04:
First of all, it meant that the jury was able to decide that Apple infringed any one patent without unanimously agreeing on which one.

[00:09:48] Speaker 04:
And the result is we didn't get a unanimous verdict on each cause of action.

[00:09:51] Speaker 04:
No one has cited any authority suggesting that that's permissible.

[00:09:54] Speaker 03:
Well, I think Mr. Jay cites a number of cases, including surgical something or other.

[00:10:00] Speaker 03:
Structural rubber.

[00:10:03] Speaker 04:
What's your response to that?

[00:10:05] Speaker 04:
Structural rubber.

[00:10:06] Speaker 04:
Infringement was broken out patent by patent.

[00:10:08] Speaker 04:
It was done by a table.

[00:10:09] Speaker 04:
In fact, this court's opinion on page 712 reproduces

[00:10:13] Speaker 04:
the table in the opinion.

[00:10:15] Speaker 04:
Now it's certainly true that patent cases can be decided by jury verdict, by general verdict that encompasses all the issues of validity and infringement.

[00:10:24] Speaker 04:
But structural rubber never suggested you could take multiple patents and combine them together in one question.

[00:10:29] Speaker 03:
And that case did the opposite.

[00:10:31] Speaker 04:
It did absolutely the opposite.

[00:10:33] Speaker 04:
The verdict form went patent by patent.

[00:10:34] Speaker 04:
There was a table for the jury to fill out, and it's printed in the court's opinion.

[00:10:38] Speaker 03:
And another argument Mr. Jay makes is that you were talking about patents here, and the real terminology here are claims.

[00:10:45] Speaker 03:
So there are several claims in each of the patents.

[00:10:48] Speaker 03:
I don't know if it's a question of preservation of the argument where you were sort of suggesting there needed to be a separate question on each of the claims or each of the patents.

[00:11:01] Speaker 04:
We asked for a patent by patent verdict and in fact Mr. Jay's client Optus also asked for a patent by patent verdict so it wasn't disputed.

[00:11:09] Speaker 04:
It's true.

[00:11:09] Speaker 04:
In many cases, the verdict goes patent claim by patent claim.

[00:11:15] Speaker 04:
There are a couple of patents in this case where more than one claim is asserted.

[00:11:21] Speaker 04:
We wanted to minimize the number of disputes in front of the district court.

[00:11:25] Speaker 04:
Optus, the plaintiff, was comfortable with a patent by patent verdict before the first trial, so we did the same thing.

[00:11:30] Speaker 04:
The only dispute among us at that point

[00:11:31] Speaker 04:
was whether to break out literal infringement and infringement by equivalents.

[00:11:35] Speaker 04:
But then when the district court said, I'm going to use a single infringement question combining all the patterns together, then we objected to that, obviously.

[00:11:43] Speaker 00:
So the court adopted, souspanded its verdict form, correct?

[00:11:47] Speaker 00:
Yes, Your Honor.

[00:11:48] Speaker 00:
And there had been arguments before that on the separation within the verdict form.

[00:11:53] Speaker 04:
Not only were there arguments, we agreed on it.

[00:11:56] Speaker 00:
If you look at the... After the court

[00:12:01] Speaker 00:
Suspente took the action that it did.

[00:12:06] Speaker 00:
Was there any further objection from the court?

[00:12:08] Speaker 04:
There was, absolutely.

[00:12:09] Speaker 04:
And this is on page 96 of the appendix.

[00:12:12] Speaker 04:
It's also in the addendum to our blue brief.

[00:12:14] Speaker 04:
I'll point you directly to it.

[00:12:16] Speaker 04:
On page 96, starting at line 6, my partner, Mr. Selwyn, says, yes, for the record, Your Honor.

[00:12:23] Speaker 04:
Apple objects to question one.

[00:12:24] Speaker 04:
because it does not break out infringement by patent or by literal infringement and infringement under the doctrine of equivalence, the court, that's overruled.

[00:12:32] Speaker 04:
So it was fully preserved.

[00:12:33] Speaker 04:
And then we presented it again in our motion for a new trial, and the judge acknowledged that we made the argument and rejected it on the merits.

[00:12:39] Speaker 04:
So it's fully preserved for this court's review.

[00:12:41] Speaker 02:
The court said at 184 that you wanted a breakdown product by product as well.

[00:12:46] Speaker 02:
I couldn't find that in the record.

[00:12:47] Speaker 02:
Did you propose a breakdown product by product?

[00:12:50] Speaker 04:
No, we did not do that, and we're not pressing that in front of this court.

[00:12:52] Speaker 02:
The logic of your position does seem to be that you had a right to insist on a claim by claim, product by product, patent by patent, a very complex set of questioning.

[00:13:04] Speaker 02:
That you had the right to do it, but that I guess your position is you voluntarily gave up, I guess, forfeited your right to the extent that there would need to be a breakdown by product or by claim.

[00:13:20] Speaker 02:
Is that your position?

[00:13:21] Speaker 02:
Is that your position?

[00:13:23] Speaker 04:
It's not quite that, Judge Stark, because I think there will be situations where, take for instance for simplicity's sake, say it's one patent with multiple patent claims that are asserted, but there's only one limitation in each claim that's in dispute, such that if the jury were to divide on the different claims, it ultimately wouldn't make a difference because they all would have found that the sole disputed limitation was practiced by the accused products.

[00:13:46] Speaker 04:
Same thing, if the multiple products were accused,

[00:13:49] Speaker 04:
but there was really no difference in the infringement read against all of them, then I don't think it would be.

[00:13:54] Speaker 04:
Because the verdict would be unanimous as to all causes of action.

[00:13:58] Speaker 04:
That's not true when you have multiple passes.

[00:13:59] Speaker 04:
I think that is that.

[00:14:00] Speaker 02:
Page 25 of the yellow brief, you suggest that there's not an independent cause of action for each assertive claim of the same

[00:14:11] Speaker 02:
patent and you were stating I for I, I'm just wondering, have we ever said that?

[00:14:18] Speaker 02:
It had been my understanding that each, because of course each patent claim is its own invention, its own property, right?

[00:14:24] Speaker 02:
I'm talking about the top of 25.

[00:14:25] Speaker 02:
When you say the Walter I for I rule applies to alternative factual theories for a single cause of action.

[00:14:33] Speaker 02:
For instance, multiple claims of a given patent.

[00:14:36] Speaker 02:
I read that to mean your

[00:14:38] Speaker 02:
conceding or taking the view that multiple claims of a given patent are all part of a single cause of action.

[00:14:46] Speaker 02:
And I'm not sure if that's quite right.

[00:14:48] Speaker 02:
I'm not even sure if that's your position.

[00:14:49] Speaker 02:
Am I misreading?

[00:14:50] Speaker 04:
Now that you point that out, it may be that that is not always the case.

[00:14:54] Speaker 04:
And maybe the answer that I gave is the better framed answer to it, which is very often

[00:15:00] Speaker 04:
the different claims in a single patent will rise and fall together.

[00:15:03] Speaker 02:
And the reason I'm asking, of course, is I think we're going to hear from Mr. Jay that the logic of your position is that you should have asked for a claim by claim breakdown, but you didn't.

[00:15:14] Speaker 02:
And somehow that leads to waiver of today's argument

[00:15:17] Speaker 02:
or should cause us to be skeptical of your position because you're not taking it as far as you should?

[00:15:24] Speaker 04:
Well, to take that question head on, I don't think we are required.

[00:15:28] Speaker 04:
Even if we had had a right to ask for a claim-by-claim form in this case, we were not required to do so in order to preserve our request for a patent-by-patent claim form, particularly given that Optus itself had requested a patent-by-patent claim form and we made

[00:15:45] Speaker 04:
the decision that because of this case... But it appears to me in your briefing here you are asking for a claim by claim.

[00:15:51] Speaker 04:
No, Your Honor.

[00:15:51] Speaker 04:
Our position is we were entitled to a patent by patent.

[00:15:53] Speaker 04:
That's what we asked for, that's what we preserved, and that's what we think should have happened here.

[00:15:58] Speaker 03:
Okay.

[00:15:58] Speaker 03:
You both counsel are very experienced, and I just, you know, I don't know if this is a fair question, but is this kind of verdict form unusual?

[00:16:09] Speaker 03:
I mean,

[00:16:10] Speaker 03:
You know, our learned colleague in ED Texas has had hundreds of trials.

[00:16:14] Speaker 03:
Have you seen this?

[00:16:15] Speaker 03:
Is this a common occurrence in this jurisdiction or in other jurisdictions to have this kind of jury form?

[00:16:20] Speaker 03:
So in my experience, Judge Prost, the answer is it used to be.

[00:16:23] Speaker 04:
And let me explain what I mean.

[00:16:26] Speaker 04:
Mr. Jay and I were both here in November in a case called United Services Automobile Association versus PNC Bank that did involve

[00:16:33] Speaker 04:
a verdict form like this one we preserved and made the very same argument.

[00:16:36] Speaker 04:
I wasn't on the panel.

[00:16:37] Speaker 04:
None of you was.

[00:16:39] Speaker 04:
No, I'm just pointing it out because that's another example where the same argument was made.

[00:16:43] Speaker 04:
We don't have that opinion.

[00:16:44] Speaker 04:
There are lots of other ways to resolve that case so it may not be addressed in that case.

[00:16:48] Speaker 04:
However, in preparing for today,

[00:16:50] Speaker 04:
We looked at all patent cases that went to verdict since January 2024, and we did not find any, including from this district court, that used a verdict form like this.

[00:17:02] Speaker 04:
So to the extent it was used before, it does not seem like it's being used anymore.

[00:17:06] Speaker 00:
Did the court ever explain why it chose that verdict form, given the objections that were made?

[00:17:11] Speaker 04:
It did not, Your Honor.

[00:17:12] Speaker 04:
I read you the response, which was, that's overruled.

[00:17:15] Speaker 04:
And then in response to our motion for new trial, although the judge acknowledged that we made the argument, there was no reasoning in particular as to why this form was chosen.

[00:17:25] Speaker 04:
And it doesn't seem to be used anymore.

[00:17:26] Speaker 04:
Move on to point two.

[00:17:29] Speaker 02:
One of the striking facts here, though, is

[00:17:31] Speaker 02:
the damages award at the first trial that appears to be to the penny what Mr. Kennedy, their expert, said should be awarded if, but only if, there was infringement of all claims that were asserted in all five patents.

[00:17:48] Speaker 02:
I am I right about that?

[00:17:50] Speaker 02:
The fact and if so, isn't that pretty strong evidence that the jury did unanimously find infringement of all the claims that were asserted?

[00:18:00] Speaker 04:
You are right about the math, Judge Stark.

[00:18:02] Speaker 04:
I don't think that is the inference to draw from this for two reasons.

[00:18:05] Speaker 04:
First of all, the district court certainly did not find that the jury had unanimously found infringement of all five patents.

[00:18:11] Speaker 04:
We know that because the judgment that was entered before the first trial, sorry, after the first trial and after the second trial

[00:18:17] Speaker 04:
does not adjudicate Apple as having infringed all five paths.

[00:18:21] Speaker 04:
It says simply one or more claims, and we don't know which ones.

[00:18:24] Speaker 04:
After the first trial, Appendix 134.

[00:18:26] Speaker 04:
In fact, I'll just make sure I read it verbatim.

[00:18:30] Speaker 04:
Appendix 134 is the judgment after the first trial.

[00:18:34] Speaker 04:
The first item, Apple has infringed one or more of the asserted claims.

[00:18:38] Speaker 04:
No further explanation as to which ones.

[00:18:40] Speaker 04:
And then after the second trial, Appendix 221, Item 1A, Apple has infringed one or more of the asserted claims.

[00:18:49] Speaker 04:
And then the second problem with the inference that Mr. Jay is going to ask you to draw is that awarding Optus' total ask in the case was a very easy way

[00:18:59] Speaker 04:
to satisfy each juror in the event that they went around the table and the jurors divided on which patent was infringed.

[00:19:05] Speaker 04:
Juror number one says, I think the 284 is infringed and Optus deserves to be paid for it.

[00:19:09] Speaker 04:
Juror number two says, I think the 332 is infringed and Optus deserves to be paid for it.

[00:19:13] Speaker 04:
And so on.

[00:19:14] Speaker 04:
The easiest thing to do is say, OK, well, we can all agree that Apple infringed one or more of the claims, or any of the claims, and then why don't we just give them the full ask?

[00:19:22] Speaker 04:
Easy enough to do.

[00:19:22] Speaker 04:
Juries compromise all the time, and there is no reason.

[00:19:25] Speaker 02:
Doesn't that require us, I'm sorry,

[00:19:28] Speaker 02:
So that requires to presume the jury didn't follow the instructions that Judge Gilstrap gave them.

[00:19:32] Speaker 04:
There were no instructions, and this is very important, no instructions that told the jury that it had to be unanimous claim by claim.

[00:19:40] Speaker 04:
And this is very important.

[00:19:41] Speaker 04:
The instructions said infringement is assessed claim by claim.

[00:19:45] Speaker 04:
But it doesn't say that you have to agree unanimously that any particular claim is infringed.

[00:19:50] Speaker 04:
The unanimity instruction, and this is on page 98 of the appendix,

[00:19:56] Speaker 04:
The verdict form says only your answer to each question on the verdict form must be unanimous.

[00:20:02] Speaker 04:
And so it was possible for them to divide, as is often the case on the subsidiary factual issues that go into determining liability and then answer the question unanimously.

[00:20:12] Speaker 04:
That's what we were objecting to and it would have been fixed by having a patent by patent verdict form.

[00:20:17] Speaker 03:
Isn't it, because I had the same question initially that Judge Stark had and then it seemed to me that the jury accepted the jury form for whatever it said.

[00:20:25] Speaker 03:
So maybe this is kind of what your answer was, that they're sitting there and they say they told us that there's going to be infringement of these claims if any of them are.

[00:20:34] Speaker 03:
We are concluding

[00:20:35] Speaker 03:
that they all are because any of them we've all said at least one of them is and so that's the appropriate valuation given the jury form.

[00:20:46] Speaker 04:
I think it took away a kind of disciplined approach to the claim by claim and allowed them just to write down the overall number because they all agree that Optus should get

[00:20:54] Speaker 04:
something and they could well have divided on what for.

[00:20:57] Speaker 04:
You want to move on to two.

[00:20:58] Speaker 04:
Thank you very much.

[00:20:59] Speaker 04:
The 332 patent.

[00:21:01] Speaker 04:
We all agree that claims directed to a mathematical formula are not eligible.

[00:21:04] Speaker 04:
This court has said that many times.

[00:21:06] Speaker 04:
At step one we look to the focus of the claimed advance and the spec here tells us the object of the present invention

[00:21:13] Speaker 04:
is using a specific mathematical operation.

[00:21:16] Speaker 03:
We are familiar with the arguments.

[00:21:21] Speaker 03:
What is the consequence of what you're asking for?

[00:21:23] Speaker 03:
Judge Gilstrap never reached step two because he threw it out on one?

[00:21:28] Speaker 03:
Yes, that's right.

[00:21:33] Speaker 04:
In your view, does step two go to the jury?

[00:21:35] Speaker 04:
I think this is an easy step two case where this court can reach it, as it has in other cases, like Free Stream Media versus Alfonso or Chamberlain versus Tectronic, because once you take the equation out, the double modulo equation, there is nothing new or inventive in this claim.

[00:21:52] Speaker 04:
structure, there's no new circuit, there's no improved device.

[00:21:55] Speaker 03:
Was there briefing on this?

[00:21:56] Speaker 03:
Did someone maintain that there was a step one and a step two, there's an argument to be made for step two?

[00:22:03] Speaker 03:
Absolutely.

[00:22:04] Speaker 04:
We've briefed it and Optus has responded, absolutely.

[00:22:06] Speaker 04:
And I don't ultimately think it can be disputed that once you take

[00:22:11] Speaker 04:
the equation, out of the equation as it were, all that remains is very well known.

[00:22:17] Speaker 04:
Not only were the devices, the user equipment and the base station and all that were well known, but using random numbers in order to determine where the phone is going to start searching

[00:22:27] Speaker 04:
the channel space, was also well known.

[00:22:30] Speaker 04:
All that this claim does is say, instead of using the single modulo equations, which were known in the prior art, use this double modulo equation.

[00:22:41] Speaker 02:
You tried to prove that this claim was also obvious, I believe, with presumably much of the same evidence that would come up at step two, correct?

[00:22:50] Speaker 04:
We did try to prove obvious evidence.

[00:22:52] Speaker 02:
We did not prevail on that.

[00:22:54] Speaker 02:
Doesn't that suggest, at least at a common sense level, there's a fact dispute here?

[00:22:58] Speaker 04:
No more so than in the Solutran case, where there was a PTAB decision finding the claims not obvious that had been affirmed by this court.

[00:23:05] Speaker 04:
In the Inray-Stanford case, this court made very clear that claims could be ineligible even if the abstraction was not obvious.

[00:23:13] Speaker 04:
And that's if you look at the re-exam

[00:23:16] Speaker 04:
decision that Optus puts in front of this court and asks the court to take traditional notice of.

[00:23:20] Speaker 04:
It's not in the record because it came up after the case.

[00:23:24] Speaker 04:
I mean, the reason the examiner let these claims get out of re-exam is because the equation was supposedly not obvious.

[00:23:32] Speaker 04:
The prior art, we cite a reference on 7436, and the examiner likewise cites the prior art as showing

[00:23:42] Speaker 04:
that the prior art knew how to use single-modulo equations to randomize the starting point of the search.

[00:23:49] Speaker 04:
The only difference here was then the only one that the re-exam decides on pages 6 to 7 is using this different equation that supposedly randomizes the numbers a little bit better.

[00:24:00] Speaker 04:
And that is the only arguably inventive concept here, and it is abstract because it's a mathematical formula.

[00:24:06] Speaker 03:
I want you to just spend a little time on the indefiniteness because we had a little exchange in 28-J letters about the fintive case and about claim one, claim ten, so could you address that briefly?

[00:24:17] Speaker 04:
Thank you very much.

[00:24:18] Speaker 04:
I think after Williamson and definitely after last week's fintive decision, selecting unit is plainly a means plus function term.

[00:24:25] Speaker 04:
Unit is a nonce word, as the court indicated in the Diebold case, and nothing in the art

[00:24:31] Speaker 04:
suggests that selecting unit connotes any particular structure.

[00:24:35] Speaker 04:
Our expert, Mr. Lanning, said this without contradiction.

[00:24:37] Speaker 04:
A selecting unit is just something that selects.

[00:24:39] Speaker 04:
It could select anything.

[00:24:40] Speaker 04:
It could select different things for different purposes using different criteria.

[00:24:44] Speaker 04:
Optus has not pointed to anything in the art suggesting that selecting unit means something in particular in terms of structure.

[00:24:52] Speaker 04:
And nothing else in the claim certainly points to structure.

[00:24:54] Speaker 04:
The claim just says selecting unit selects a sequence that's then transmitted.

[00:24:59] Speaker 04:
and as the court said in media rights and again last week in Fintith, merely saying that one feature is connected to and interacts with other features doesn't tell you what structure is used.

[00:25:08] Speaker 04:
When you get to step two and you look at, I mean the function here is randomly selecting a sequence from a plurality of sequences, the spec gives you nothing to tell you how to implement that.

[00:25:19] Speaker 04:
It's notable

[00:25:20] Speaker 04:
that when Optus responded on Wednesday evening to our 20HA letter, they cited the highly general language at the end of the patent at column 9, and clearly that's the best that they have, and I think it's worth looking at that.

[00:25:33] Speaker 04:
This is on page 338 of the appendix, starting at line 26.

[00:25:38] Speaker 04:
Now, first of all, what I'd say is it's not linked to the selecting unit term at all.

[00:25:43] Speaker 04:
It applies to any function block in the patent.

[00:25:48] Speaker 04:
It says it can be implemented by hardware or software.

[00:25:51] Speaker 04:
It says it can be an integrated circuit, dedicated circuitry, or general purpose processors.

[00:25:56] Speaker 04:
And it then says, if integrated circuit technology comes out to replace LSIs, that can be used too.

[00:26:02] Speaker 04:
And application of biotechnology is also possible.

[00:26:05] Speaker 04:
If that is sufficient disclosure, then there's nothing left of section 112, paragraph 6, because this essentially says anything that does the function can be covered by this claim.

[00:26:15] Speaker 03:
OK.

[00:26:15] Speaker 03:
Moving on to the next number.

[00:26:16] Speaker 03:
Are we at number 3 yet?

[00:26:17] Speaker 04:
We could be.

[00:26:19] Speaker 04:
Well, we're at number 3.5 in the sense that I suppose I think Mr. Jay is going to say that if you agree with me on means plus function, that doesn't matter because there's still claim 10 out there, the method claim.

[00:26:30] Speaker 04:
First of all, I'd say that's not correct under this court's I4I decision, because indefinitely this is a legal defect in a theory that's been presented that when you show a legal error, we can't assume that the jury didn't rely on that claim in reaching its outcome.

[00:26:45] Speaker 04:
So that, I think, on its own requires a remand.

[00:26:47] Speaker 04:
I think you can also find, however,

[00:26:49] Speaker 04:
that there wasn't any proof of infringement of method claim ten because it's a method.

[00:26:54] Speaker 02:
There has to be proof that somebody... These are infringement arguments here.

[00:26:57] Speaker 04:
The indefiniteness argument doesn't go to claim ten.

[00:26:59] Speaker 04:
It does not.

[00:27:00] Speaker 04:
It's claim one only, exactly, which is why we have this separate and why Mr. J is going to invoke claim ten as a way to get around the indefiniteness of claim one.

[00:27:08] Speaker 04:
I submit that he can't on its own.

[00:27:09] Speaker 04:
At the very least, we get a retrial as to Claim 10.

[00:27:13] Speaker 04:
I think the court could dispatch this patent entirely because the case for no substantial evidence of infringement on Claim 10 is really very plain because Claim 10 requires selecting a sequence from a plurality of groups.

[00:27:26] Speaker 04:
And if you look at the standard, and their only argument for this is that Claim 10 is supposedly standard essential.

[00:27:32] Speaker 04:
But if you look at the standard on 26378 and 26379, it is clear as day

[00:27:37] Speaker 04:
that there does not have to be a plurality.

[00:27:39] Speaker 04:
Okay, there's some things we have to limit.

[00:27:40] Speaker 04:
Good.

[00:27:41] Speaker 04:
Especially if Trichman is one of them.

[00:27:42] Speaker 03:
Anything else?

[00:27:43] Speaker 04:
May I spend one minute on the Qualcomm licenses, which is a damages issue.

[00:27:48] Speaker 04:
Agreements that are not sufficiently comparable are not admissible.

[00:27:51] Speaker 04:
This court has said that repeatedly.

[00:27:53] Speaker 04:
Optus's own expert admitted the Qualcomm agreements were not sufficiently comparable for use as a direct indication of the royalty.

[00:27:59] Speaker 04:
And these agreements are radically different in at least three ways.

[00:28:03] Speaker 04:
First of all,

[00:28:04] Speaker 04:
They come up in a particular economic situation where Apple needed Qualcomm's chips and Qualcomm conditioned the sale of chips on licensing Qualcomm's patent portfolio on terms favorable to Qualcomm.

[00:28:17] Speaker 04:
Second of all, the Qualcomm agreements covered an extremely large number of patents.

[00:28:21] Speaker 04:
I can't say it in open court.

[00:28:22] Speaker 04:
It's redacted, but the court knows it's on page 60 of our blue brief.

[00:28:26] Speaker 04:
And third, the agreements were tainted by the coercive environment of litigation and not just any litigation.

[00:28:32] Speaker 04:
The list of cases and litigations that were settled by this agreement is 20 pages long.

[00:28:37] Speaker 03:
What are your best cases that we have, Erickson?

[00:28:40] Speaker 03:
Or what are our cases that deal with this?

[00:28:43] Speaker 03:
This has the flavor of the entire market value rule thing, too.

[00:28:47] Speaker 04:
Oh, I don't mean to invoke the entire market value rule.

[00:28:51] Speaker 04:
Omega patents, YLAN, laser dynamics, Lucent, all cases where this court has said,

[00:28:57] Speaker 04:
that agreements that are remarkably different and radically different from the hypothetical negotiation are not admissible and the prospect of cross-examination is not enough.

[00:29:07] Speaker 03:
Now, I think Mr. Jay had a lot to say about this, but at page 62 of the red brief, he says that Mr. Kennedy relied on this agreement for a limited use.

[00:29:20] Speaker 03:
And I was going to ask him whether that, in his mind, meant comparability.

[00:29:27] Speaker 03:
But what's your reaction to that?

[00:29:30] Speaker 04:
So my submission is it doesn't matter that it was used only as a check, as he called it.

[00:29:35] Speaker 04:
because the agreement itself was inadmissible for any purpose.

[00:29:39] Speaker 04:
I mean, that's what this court held in Uniloc, right, where the entire market value was used only as a check on the number that was being offered.

[00:29:46] Speaker 04:
It still spewed the damages horizon for the jury, and that's the ultimate harm here and why the court ordered the licenses excluded in the cases I named.

[00:29:55] Speaker 04:
I'd point out that we made a demonstration in our blue brief of the undue prejudice from these big numbers that came in through these licenses.

[00:30:01] Speaker 02:
Is one of the grounds you moved to exclude the license Rule 403?

[00:30:05] Speaker 04:
Yes, absolutely.

[00:30:06] Speaker 04:
We challenged it on every possible basis.

[00:30:08] Speaker 02:
Did the district court address the rule to read grounds that this is just too unfairly prejudicial compared to whatever probative value it has?

[00:30:17] Speaker 04:
Yes.

[00:30:17] Speaker 04:
We had a motion in limine on this.

[00:30:20] Speaker 04:
It was denied on page 64 of the appendix.

[00:30:24] Speaker 04:
And it's phrased in a general way, but it's starting at line four.

[00:30:29] Speaker 04:
With regard to what has been classified as, quote, other issues,

[00:30:32] Speaker 04:
particularly the bargaining share analysis, the method claims, the Qualcomm agreement, and the Dwyer opinion, I'm going to deny those as well.

[00:30:39] Speaker 04:
I think those can be addressed by cross-examination.

[00:30:42] Speaker 03:
Okay, one more question which you weren't raised by, just quickly.

[00:30:46] Speaker 03:
The issue about admitting the confidential negotiation settlement.

[00:30:51] Speaker 03:
If we're in Franlam,

[00:30:53] Speaker 03:
And bad faith is a question, and what they did and what you do.

[00:30:58] Speaker 03:
Why wouldn't the party's confidential negotiation settlement be?

[00:31:05] Speaker 03:
applicable and relevant and admissible?

[00:31:07] Speaker 04:
Well, Rule 408 continues to apply regardless of whether there's frand in the case.

[00:31:12] Speaker 04:
I'll note that the issues that Your Honor brought up were not relevant to whether the jury's reasonable royalty award was frand or not.

[00:31:21] Speaker 04:
Those were issues raised, if at all, by Count VIII of Optus' complaint, which Optus decided to try to the bench.

[00:31:28] Speaker 04:
And the judge ultimately decided he lacked jurisdiction over.

[00:31:31] Speaker 04:
But none of that came in in the new trial.

[00:31:33] Speaker 04:
It didn't need to.

[00:31:34] Speaker 04:
The confidentiality agreement that the parties have rendered that inadmissible and it's also irrelevant because the first offer that was being assessed by Optus was at least five years after the hypothetical negotiation.

[00:31:46] Speaker 04:
So it wasn't ultimately relevant to the exercise that the jury was engaged in.

[00:31:50] Speaker 04:
I'd also point out, the patentee's offer at that point, when the negotiations had already started, under this court's decision in Whitserv, is not valid evidence of a reasonable royalty.

[00:32:00] Speaker 04:
Because as this court recognized, patentees can artificially inflate the royalty rate by making outrageous offers, which is exactly what Optus did.

[00:32:09] Speaker 04:
I thank the court very much for its patience and its attention this morning.

[00:32:12] Speaker 03:
We're going to keep stuff even, so we will give you some rebuttal time.

[00:32:15] Speaker 03:
Thank you.

[00:32:16] Speaker 03:
Not much, I hope.

[00:32:29] Speaker 03:
No worries, we're going to keep Sefi, then, if we need to.

[00:32:34] Speaker 01:
Thank you, Your Honors.

[00:32:35] Speaker 01:
May it please the Court, William J. for the Optus at Belize.

[00:32:38] Speaker 01:
Why don't I start with the verdict form?

[00:32:42] Speaker 03:
Why don't you start with the U.S.

[00:32:44] Speaker 03:
2K proceedings, if you have anything to add to what Mr. Flaming said.

[00:32:48] Speaker 01:
A couple of things.

[00:32:49] Speaker 01:
One, I think it would make sense for us to update the court once the Court of Appeal issues its order and court-determined license.

[00:32:58] Speaker 01:
As you know, there will be submissions due to the Court of Appeal next week.

[00:33:04] Speaker 01:
At some point after that, it will issue

[00:33:07] Speaker 01:
its order and court-determined license.

[00:33:10] Speaker 03:
They're very efficient.

[00:33:12] Speaker 03:
And you told us in one of the earlier filings they're going to decide within six to eight weeks, and they hit their mark.

[00:33:18] Speaker 03:
Is there an anticipated time frame in which they're going to act with respect to this part two?

[00:33:27] Speaker 01:
We think it could be as soon as a day after the submissions, which would be May 16th.

[00:33:32] Speaker 01:
We think it's more likely that it will take a short amount of additional time.

[00:33:37] Speaker 01:
This is obviously guesswork on the part of my colleagues in the UK.

[00:33:41] Speaker 01:
But we don't think it will be very long.

[00:33:43] Speaker 01:
Because the time for the parties to seek, for Apple to seek permission from the Court of Appeal to take further review will run from the issuance of that order.

[00:33:52] Speaker 01:
And what is that time frame?

[00:33:55] Speaker 01:
That will be 21 days, and then there's a further opportunity if it's denied to seek leave from the Supreme Court of the UK itself.

[00:34:03] Speaker 01:
That's 28 days.

[00:34:05] Speaker 01:
Thank you.

[00:34:07] Speaker 02:
Go ahead.

[00:34:07] Speaker 02:
We have no request.

[00:34:08] Speaker 02:
for a stay in front of us of this matter, correct?

[00:34:12] Speaker 01:
Correct.

[00:34:13] Speaker 01:
Our position has always been that the UK proceedings are not relevant to your decision.

[00:34:20] Speaker 01:
In this case, I think the provision of the Court of Appeal decision making the US a floor confirms that that is right.

[00:34:28] Speaker 01:
Judge Raina, you had kind of asked the opposite question, whether the proceedings in this court are relevant to what's happening in the UK.

[00:34:36] Speaker 01:
And yes, the

[00:34:38] Speaker 01:
That's why there's the provision in the judgment that will be reflected in the court-determined license about a floor.

[00:34:46] Speaker 00:
Yeah, it's clear to me that the UK court is looking at what's happening here before the Federal Circuit.

[00:34:55] Speaker 00:
And so to the extent that there's a substantive change in the landscape that we've come to understand,

[00:35:06] Speaker 00:
is in place right now, I think it would be good to hear from these parties as to if we still have a situation where nothing has to be done or the two proceedings are

[00:35:22] Speaker 00:
are separate enough to where it doesn't warrant any additional action on our part as well.

[00:35:28] Speaker 01:
Right.

[00:35:29] Speaker 01:
I think my guess is that once the order and court-determined license come out, we'll be able to point you to particular aspects of that, as well as the judgment, to answer that question.

[00:35:41] Speaker 01:
But what I've said is based on the judgment and the judgment alone.

[00:35:45] Speaker 01:
But the judgment is obviously, the Court of Appeal was well aware

[00:35:50] Speaker 01:
of everything going on in this court right down to the fact that we would be here today.

[00:35:55] Speaker 01:
So I think that they understand that this appeal would proceed.

[00:35:58] Speaker 01:
They understand it's recited in the judgment that there could be multiple outcomes.

[00:36:04] Speaker 01:
The outcomes could result in the award going up, going down, or staying the same.

[00:36:10] Speaker 01:
So the court feels well aware of that.

[00:36:11] Speaker 02:
They don't seem to contemplate the fourth option where the result after our decision, of course I have no idea what our decision will be,

[00:36:20] Speaker 02:
It could be a zero dollar award plus a right to a new trial.

[00:36:24] Speaker 02:
They seem to contemplate zero, 300 million, or 500 million.

[00:36:27] Speaker 02:
Does that mean anything that they may not have contemplated that fourth or fifth or sixth options?

[00:36:33] Speaker 01:
I think I wouldn't read too much into the court setting out the endpoints of the spectrum.

[00:36:41] Speaker 01:
in other words, I don't think the court is unaware of the possible outcomes in this case.

[00:36:46] Speaker 01:
And ultimately, I don't think that that bears on anything that you have to do in this case.

[00:36:50] Speaker 01:
Obviously, the trial court had basically issued an order that sought to restrict what the parties could do in this case, and that's now been set aside.

[00:37:00] Speaker 01:
So I really don't think there's anything that the UK court is asking this court to do or not do.

[00:37:05] Speaker 01:
It's just watching to see what you do.

[00:37:08] Speaker 01:
Very good.

[00:37:09] Speaker 01:
So to the verdict form, if we may.

[00:37:10] Speaker 01:
And I think I do want to begin, actually, with the point that was really only barely touched on by Mr. Fleming, which we've emphasized in our brief, which is that this really is more a question about the jury instructions than about the verdict form.

[00:37:26] Speaker 01:
In other words, the verdict form asked this single infringement question.

[00:37:32] Speaker 01:
And our friends on the other side say there's a risk that that

[00:37:37] Speaker 01:
would cause jurors to not answer the questions on a unanimous and claim-by-claim basis.

[00:37:43] Speaker 01:
And the jury instructions twice told the jury that infringement is to be determined claim-by-claim, once at the beginning of the trial, once at the end of the trial.

[00:37:52] Speaker 02:
It also can you show us where the jury was instructed, you the jury must find infringement claim-by-claim and give them any

[00:38:03] Speaker 02:
any instruction that would suggest to them that if they all unanimously agree that at least one patent claim was infringed, that the answer to question one should be no.

[00:38:13] Speaker 02:
That is, unless they were unanimous on at least a single claim, that the answer is no.

[00:38:20] Speaker 02:
Because I don't see that in the jury instructions.

[00:38:22] Speaker 01:
So there are two pieces, Judge Stark, to your question.

[00:38:25] Speaker 01:
So one is that the instructions do say infringement is to be judged claim by claim.

[00:38:30] Speaker 02:
Say it's sort of in a third person, right?

[00:38:33] Speaker 02:
the judge doesn't direct the jurors, you must proceed claim by claim to find infringement.

[00:38:41] Speaker 01:
Well, all right, so I'll just read you what it says.

[00:38:43] Speaker 03:
But how does that answer?

[00:38:44] Speaker 03:
Then tell me how that necessarily answers the question, if you're a juror, to get that instruction, but then to say that they prove infringement of any of the asserted claims, and the answer would be yes.

[00:38:56] Speaker 01:
You know, I understand the point, and

[00:38:59] Speaker 01:
This is, of course, the fact that we're having this conversation about whether the instructions were adequate to go with the verdict form just highlights that Apple didn't ask for clarifications of these instructions.

[00:39:13] Speaker 01:
It only made the per se objection that they were, and you heard Mr. Fleming say again this morning, that they are entitled by law to a verdict form that divides things up patent by patent.

[00:39:25] Speaker 01:
And they have obviously also made and have now, I think, dropped their argument that they were entitled to have infringement and infringement by equivalence separated.

[00:39:38] Speaker 01:
uh... that's the only objection they preserve.

[00:39:40] Speaker 01:
They didn't preserve an objection.

[00:39:42] Speaker 01:
They didn't request a better instruction.

[00:39:44] Speaker 01:
They didn't request sort of tinkering with the language of the verdict form.

[00:39:47] Speaker 02:
I do want to take you to one aspect of the request, patent by patent, as you did as well.

[00:39:52] Speaker 01:
Sure, that's right.

[00:39:54] Speaker 01:
That's preserved.

[00:39:55] Speaker 01:
Yes, but the reason

[00:39:59] Speaker 01:
The argument that they made after trial for the first time is that there was this risk of non-unanimous decision making.

[00:40:07] Speaker 01:
And they preserved at trial this objection that they are entitled to patent by patent.

[00:40:14] Speaker 01:
But as I think your colloquy with Mr. Fleming brought out, that if the concern is about non-unanimous decision making,

[00:40:21] Speaker 01:
then there's no principle distinction between a rule that says you're entitled to a patent by patent or a theory by theory or a claim by claim or a product by product breakdown, because each of those is a thing that jurors might in theory disagree on.

[00:40:38] Speaker 01:
There is no per se rule that Mr. Fleming did not cite you any case, any case at all.

[00:40:43] Speaker 01:
that suggests that there is a bright line for patent by patent breakdowns.

[00:40:49] Speaker 01:
And if you think about some of the examples that he gave about how special verdicts work, I think that that actually makes our point for us.

[00:40:56] Speaker 01:
So he suggested that it's OK to have two different claims from the same patent in the same question if the issue in contention at trial is the same.

[00:41:10] Speaker 01:
Why would that be different?

[00:41:12] Speaker 02:
You may be right on the logic, but I don't see how that helps you hear.

[00:41:17] Speaker 02:
He could have argued, on your reasoning, he could have argued for a more elaborate form than he did.

[00:41:24] Speaker 02:
So he's a nice guy.

[00:41:25] Speaker 02:
He made it easier for the jury.

[00:41:26] Speaker 02:
But he never agreed to just one catch-all question for all five patents.

[00:41:31] Speaker 01:
I'm not saying that he agreed to the catch-all question.

[00:41:33] Speaker 01:
I'm saying that he's restricted himself to this argument that

[00:41:36] Speaker 01:
There's something special about patent by patent, a theory that is not grounded in anything in the law.

[00:41:42] Speaker 01:
And the further point that I want to make, which ties together the point about the damages award and the language of the verdict form, is that I think it is really quite clear in this case that the jury found infringement of all five patents from the adding up of the numbers.

[00:41:57] Speaker 01:
Now, Mr. Fleming gave you his best argument for how the jury could possibly have arrived at this conclusion

[00:42:03] Speaker 01:
by some other means.

[00:42:05] Speaker 01:
And I think what I would point you to is on the verdict form, appendix 104.

[00:42:11] Speaker 01:
So this is the top of the page where the damages award is.

[00:42:17] Speaker 01:
And it says,

[00:42:18] Speaker 01:
If you answer question numbers 4A and 4B, and 4A is the money damages, only as to any asserted claim that you have found both to be infringed and not invalid.

[00:42:29] Speaker 01:
So the suggestion that the jurors are including the broken down number from patents that they didn't find to be infringed as some kind of compromise, I don't think that that would require you, as you said, Judge Stark.

[00:42:45] Speaker 02:
I just don't see how that can be right.

[00:42:47] Speaker 02:
If you had, just to make it simple, five jurors and five patents.

[00:42:52] Speaker 02:
Each juror only thinks one patent was infringed.

[00:42:55] Speaker 02:
That's my hypothetical.

[00:42:56] Speaker 02:
How does the jury tell us that on this verdict sheet?

[00:43:00] Speaker 01:
So certainly there is no grid with check boxes for each patent.

[00:43:05] Speaker 01:
And I think that, and I'll candidly say, that if it had come back with $300 million as a round number as it did at the retrial, we wouldn't be able to make this argument that I'm making right now.

[00:43:18] Speaker 01:
True.

[00:43:19] Speaker 02:
I'm glad you concede that.

[00:43:21] Speaker 02:
But stick to my question first.

[00:43:25] Speaker 02:
In my hypothetical,

[00:43:26] Speaker 02:
each juror only found one different patent in fringe.

[00:43:29] Speaker 02:
They were not unanimous on any one of the five.

[00:43:33] Speaker 02:
First of all, you agree that they should, in that instance, they should answer no to the question.

[00:43:40] Speaker 01:
Right.

[00:43:40] Speaker 01:
So if no juror agrees, I mean, I think they would be ordered to keep deliberating.

[00:43:46] Speaker 01:
Right.

[00:43:47] Speaker 02:
In other words, if they had, well, they had no way to communicate that to us.

[00:43:51] Speaker 02:
The correct answer

[00:43:53] Speaker 02:
is you've not proven, you've not met your burden, if that's the end result.

[00:43:59] Speaker 02:
You've lost four to one on each patent, in my hypothetical.

[00:44:03] Speaker 02:
If the jury's not unanimous.

[00:44:06] Speaker 02:
Right.

[00:44:08] Speaker 02:
And so I just don't see what in our record

[00:44:13] Speaker 02:
verdict sheet instructions or even the dollar figure awarded allows us to be even reasonably certain that that's not what happened here.

[00:44:21] Speaker 01:
So I think that in your hypothetical, so like let's say the one juror who wants to award money on let's say the 557 patent, they're the one juror who finds that one infringed.

[00:44:34] Speaker 01:
So then they would vote to award $2.1 million.

[00:44:37] Speaker 01:
uh... the you know that's what the damages figure for that that is you know for the eight thirty three patent that sure probably would want to work or two hundred and three million dollars uh... there's no way that you get the five jurors together would get up to five hundred and six point two million dollars the exact sum of all of uh... uh... independent damages figures for the five patents and i think what the harmless error principles from cases like uh... uh... texas uh...

[00:45:07] Speaker 01:
opto-electronic, and for that matter, I4I, is that what you need is reasonable certainty.

[00:45:15] Speaker 03:
Is the same true because this is gone for other reasons, because of FRAND, this verdict is gone?

[00:45:21] Speaker 03:
Correct.

[00:45:22] Speaker 03:
Can the same be said of the damages request on the $300 million?

[00:45:27] Speaker 03:
No.

[00:45:28] Speaker 03:
So that doesn't, so what you're using here didn't happen

[00:45:34] Speaker 03:
You don't have that added bonus to say, well, yes, we think they understood it correctly because of the damages number in the second trial.

[00:45:41] Speaker 03:
That's right.

[00:45:41] Speaker 01:
The jury was instructed at the second trial by the district court that it should treat all five patents as infringed and that it was only going to decide the damages number.

[00:45:50] Speaker 01:
And I think Mr. Fleming suggests that the district court did not read the verdict because it did not embody in the judgment a finding of infringement of all five patents.

[00:45:59] Speaker 01:
I think you can see from the instruction that the district court gave at the retrial

[00:46:02] Speaker 01:
that the district court did think that all five patents had been found infringed.

[00:46:06] Speaker 01:
He read the verdict.

[00:46:06] Speaker 02:
Well, then why did he write in the judgment that Apples infringed one or more of the asserted claim?

[00:46:11] Speaker 01:
He just repeated the verdict form.

[00:46:13] Speaker 01:
The judgment just repeats what the verdict form says.

[00:46:16] Speaker 01:
And that is what the jury found.

[00:46:18] Speaker 01:
But the question is both, one, is there a prejudicial legal error in the verdict?

[00:46:25] Speaker 01:
I'm sorry.

[00:46:26] Speaker 01:
The verdict form, of course, doesn't say one or more claims.

[00:46:29] Speaker 02:
It says, did Optus prove by preponderance the evidence that Apple infringed any of the assertive claims?

[00:46:36] Speaker 02:
Judge Gilstrap understood that, arguably, in the judgment as, okay, Optus, you proved that Apple has infringed one or more of the assertive claims.

[00:46:45] Speaker 02:
But parenthetically, we don't know which one.

[00:46:48] Speaker 01:
No, I'm sorry for me speaking.

[00:46:49] Speaker 01:
But I think that my answer is still the instruction that the judge gave at the retrial, that the judge instructed the jury to decide damages for the infringement of the five patents, because the court concluded that that's what had been found at the first trial.

[00:47:04] Speaker 01:
And I think that the question both as to

[00:47:11] Speaker 01:
Is there a legal error in this verdict forum that caused prejudice?

[00:47:15] Speaker 01:
And then as we get to some of the other issues, is there prejudice to the verdict if one of these patents but not others has some problem with the verdict?

[00:47:27] Speaker 01:
I think that you can conclude with the requisite reasonable certainty that the jury found infringement as to all five and what that would

[00:47:35] Speaker 01:
That wouldn't help us sustain the $300 million damage award, but recall that what Mr. Fleming is trying to do is to take even an infringement issue on one of these other patents and say, any problem causes you to blow up the entire verdict and retry everything.

[00:47:50] Speaker 01:
I mean, I take him to concede that he wouldn't retry invalidity because they don't have any arguments about that, but that he wants to retry infringement

[00:47:59] Speaker 01:
as well as damages, and not just excise the patent, but relitigate.

[00:48:05] Speaker 01:
What I think the clear reading of the verdict form is that this jury found infringement of all five, and that you're not supposed to reexamine findings by the jury under that circumstance, nor are you supposed to reverse based on errors that aren't prejudicial.

[00:48:18] Speaker 03:
Okay, why don't we move on?

[00:48:20] Speaker 03:
Your sequence, follow Mr. Fleming.

[00:48:22] Speaker 01:
I'd be happy to.

[00:48:23] Speaker 01:
So on 101, so I think that the key point here is this is not a patent that is directed to the equation.

[00:48:32] Speaker 01:
So Mr. Fleming kind of got to this late in his presentation, but the question is,

[00:48:39] Speaker 01:
This is an invention that is for use in this particular field and is looking for the maximally efficient way of identifying the search space that each handset can use so that one, the search spaces collide with each other minimally so that you can send more messages to more handsets and the handsets operate more efficiently by using less power to decode fewer regions of the signal.

[00:49:08] Speaker 01:
figuring out what the most effective means of randomizing.

[00:49:14] Speaker 01:
That was a significant issue that many of the scientists working on the LTE standard had a debate about.

[00:49:23] Speaker 01:
And there's evidence about this in the record.

[00:49:25] Speaker 01:
Our expert testified about this in the context of obviousness and damages.

[00:49:31] Speaker 01:
And so if we were to get to step two, we've got plenty of evidence about the inventiveness of it.

[00:49:37] Speaker 02:
Could you just summarize that?

[00:49:39] Speaker 02:
Or a few pieces, what's your best evidence that there's a fact to spew at step two if we were to reach that?

[00:49:45] Speaker 01:
Now, obviously, we didn't try it as 101 at trial.

[00:49:48] Speaker 01:
But if you look at some of the evidence at trial, the evidence I think I would point you to primarily is that our expert, Dr. Mattasetti, talked about, A, that this is a technical solution to a technical problem in a specific application, but also that he explained that the

[00:50:06] Speaker 01:
This overcame critical problems with proposed alternatives, and he compared it to, for example, the golden series, another mathematical means of number shifting, or a cyclically shifted equation.

[00:50:20] Speaker 01:
And so there are emails back and forth between different scientists, including the inventor of this patent, discussing the efficacy of the use of this equation.

[00:50:34] Speaker 01:
And the patent itself discusses the testing that's performed about how often do these signals collide if you use this equation versus others.

[00:50:43] Speaker 01:
And so I think that tells you that this is not trying to preempt the use of this equation in mathematics or in any other field.

[00:50:51] Speaker 01:
This is linked to achieving the efficiency benefit in the telecommunications equipment, which

[00:50:58] Speaker 01:
has the concern about using too much battery to decode too many signals when looking for the control information.

[00:51:05] Speaker 01:
And so, in other words, this is not a patent that's directed to the use of the equation.

[00:51:09] Speaker 01:
This is a patent that reflects the discovery that this equation achieves an efficiency benefit in this context.

[00:51:17] Speaker 01:
That, I think, is enough to make the district court correct at step one.

[00:51:20] Speaker 00:
And the court did not reach step two, is that right?

[00:51:22] Speaker 01:
It did not reach step two, that's right.

[00:51:24] Speaker 00:
Do you agree with the other side that that's an issue that we could decide?

[00:51:28] Speaker 01:
I don't.

[00:51:30] Speaker 01:
I don't think the court would do that because if there is a fact dispute, which we certainly would say that there is,

[00:51:37] Speaker 01:
it would need to be resolved by the fact finder.

[00:51:40] Speaker 01:
So the only way Mr. Fleming could be right is if our showing was so flimsy that the court was going to order summary judgment granted on the appellate record.

[00:51:52] Speaker 01:
This has not been the focus of the party's presentation.

[00:51:58] Speaker 01:
I think that takes us to the 112-6 issue.

[00:52:02] Speaker 01:
I do want to start with the point, although in this sort of

[00:52:06] Speaker 01:
tread over some of the same ground, that this is just one claim under this patent and they don't have great arguments for why claim 10 isn't a sufficient basis to find this patent infringed.

[00:52:20] Speaker 01:
I understand Mr. Fleming's point that this is a legal error and I'm going to kind of repeat the point about

[00:52:31] Speaker 01:
but having set that out at the outset, why don't I get into the merits of it?

[00:52:37] Speaker 01:
So there is more to it than Mr. Fleming described to you in particular.

[00:52:43] Speaker 01:
Our expert explained a number of things about the type of circuit that this would be embodied in, and yes, it could be achieved.

[00:52:51] Speaker 01:
in software, but a person of skill in the art would see this as referring to particular types of circuits which are set out in the passage in column 9 that are referred to in our 28-J letter written this week.

[00:53:08] Speaker 01:
You've got to do your cross-appeal too.

[00:53:11] Speaker 01:
I appreciate that very much.

[00:53:11] Speaker 00:
But if we were to agree, assuming we were to send this back,

[00:53:18] Speaker 00:
or a new trial.

[00:53:22] Speaker 00:
What is left?

[00:53:23] Speaker 00:
What's not decided?

[00:53:26] Speaker 01:
I guess the question is, a new trial on what?

[00:53:29] Speaker 01:
Let's say on infringement.

[00:53:32] Speaker 01:
On infringement of one of these claims?

[00:53:34] Speaker 01:
Yes.

[00:53:39] Speaker 01:
uh... it would be if you were accepting the argument about the verdict form then i mean i take it that the other side would say well invalidity is now is resolved and you have to retry everything infringement of all five uh... and uh... damages for all five uh... if you accepted what uh... that there needs to be a new trial on one of these issues you know let's let's just you know pick the uh... the uh... five fifty seven for sake of argument uh...

[00:54:08] Speaker 01:
Sorry, if you concluded that that patent was invalid and that there needs to be a new trial as a result, I think that our position is it should only be a trial on damages because the other four patents are not infected by that error.

[00:54:22] Speaker 01:
And there's been no finding of error in the infringement question as to those patents.

[00:54:28] Speaker 01:
And so you wouldn't relitigate the infringement of those.

[00:54:31] Speaker 01:
You would have a new trial on damages.

[00:54:33] Speaker 01:
That is assuming that you don't accept our cross appeal.

[00:54:36] Speaker 01:
If you accepted our cross appeal,

[00:54:38] Speaker 01:
then we're back to the number that the jury found that is the exact sum of A plus B plus C plus D plus E. And I think that you could also solve it with remittitor in that circumstance.

[00:54:48] Speaker 01:
Have I adequately answered your question?

[00:54:50] Speaker 01:
Yeah.

[00:54:50] Speaker 03:
Yeah, but you want to move on before you get to the cross-the-field just quickly, because you want to respond to the damages question and the 403 question.

[00:55:00] Speaker 01:
Right.

[00:55:01] Speaker 01:
So the damages question on Qualcomm, I think that the key point is that there are two agreements that Mr. Fleming, I think, is trying to, or two documents, Mr. Fleming is trying to lump them together.

[00:55:15] Speaker 01:
And I think we've explained pretty thoroughly

[00:55:18] Speaker 01:
at the page, Judge Prost, of our red brief that you cited, the reasons why the license agreement is relevant to respond to a number of points that Apple made.

[00:55:27] Speaker 01:
And I didn't hear Mr. Fleming disagree with that point.

[00:55:30] Speaker 01:
So in other words, Apple's argument was, for example, because of royalty stacking, nobody would possibly pay more than $5 for a standard essential patent.

[00:55:39] Speaker 03:
But you agree they weren't comparable, right?

[00:55:42] Speaker 03:
There's no comparability here.

[00:55:43] Speaker 03:
And isn't that a requirement?

[00:55:46] Speaker 01:
I don't think it's a requirement for there to be any relevance whatsoever to the licensing practices of the defendant.

[00:55:55] Speaker 01:
So if we had said, this is the royalty rate, and you should adopt that royalty rate as your... This is the basis of my

[00:56:05] Speaker 01:
damages number.

[00:56:07] Speaker 01:
That would be a different case.

[00:56:08] Speaker 01:
I think that would require a different assessment of the expert's methodology.

[00:56:13] Speaker 01:
But in this case, first of all, I think that the responsive points to say, Apple says it would never license anything more than the baseband chip.

[00:56:25] Speaker 01:
It would never license a royalty based on the entire handset.

[00:56:29] Speaker 01:
Here is evidence of their licensing practice that shows that actually they do.

[00:56:32] Speaker 01:
I think that for that purpose, that's entirely proper.

[00:56:35] Speaker 03:
But it matters then even in the equation.

[00:56:37] Speaker 03:
I mean, this is a weighing thing, right?

[00:56:40] Speaker 03:
Relevance and then whether it's prejudicial.

[00:56:43] Speaker 03:
Absolutely.

[00:56:44] Speaker 03:
So if it's not comparable, that's going to...

[00:56:46] Speaker 01:
can affect the scales, right?

[00:56:49] Speaker 01:
Yes, I agree that it would raise the question for the district court of what cautionary instructions to give, how great a scope of cross-examination to allow, and how to assess potential prejudice at the end of the case.

[00:57:06] Speaker 01:
Sure, I agree that it's relevant to that assessment.

[00:57:08] Speaker 01:
But the other side seems to be arguing for a flat, if not comparable,

[00:57:13] Speaker 01:
you know, for, uh, like in the, in the way that, uh, uh, this court's really Daubert comparability cases contemplate, then it can't come in at all.

[00:57:22] Speaker 01:
And I don't think that that would be a good rule.

[00:57:24] Speaker 01:
It is not a rule that Apple itself followed.

[00:57:26] Speaker 01:
In other words, Apple brought in all kinds of evidence in this case that was useful for checking the figures that their expert had accomplished.

[00:57:35] Speaker 01:
That's what we did as well.

[00:57:36] Speaker 01:
This is not the basis of Mr. Kennedy's damages methodology.

[00:57:39] Speaker 01:
He built his damages number based on the second best alternatives to each of these patented technologies and how much speed gain is attributable to each of them compared to the second best.

[00:57:53] Speaker 01:
In other words, he built his number in exactly the right way without trying to do it by comparable licensing comparators.

[00:58:05] Speaker 01:
In a case where one party or the other doesn't have a robust history of licensing behavior, I think it would be important to be able to prove damages using the data points that are available

[00:58:16] Speaker 01:
using, with the district court, exercising discretion to make sure that the jury understands what purpose the agreements are being brought in for.

[00:58:25] Speaker 03:
And was that done here?

[00:58:26] Speaker 01:
I mean, no.

[00:58:28] Speaker 03:
Was that done here?

[00:58:29] Speaker 01:
Well, there was a 403 motion among other.

[00:58:32] Speaker 03:
But was there a jury?

[00:58:34] Speaker 03:
Judge Gilstripp's tell the jury the limited extent to which they could consider this.

[00:58:40] Speaker 01:
I don't think there's a specific instruction about Qualcomm.

[00:58:45] Speaker 01:
I'm not sure that there was one requested either once the agreement came in.

[00:58:49] Speaker 01:
Of course, the motion to eliminate was denied before trial.

[00:58:53] Speaker 02:
I think I'm understanding the flavor of your 403 argument in response to Judge Prost's questions.

[00:58:58] Speaker 02:
But I do want to make sure I understand fully why it's not an abuse of discretion here.

[00:59:12] Speaker 02:
very undue prejudice, unfair prejudice of the large numbers involved.

[00:59:18] Speaker 02:
Did you address that argument, either in the district court or on appeal?

[00:59:22] Speaker 02:
And even if you didn't, I do want to make sure I hear your argument on that.

[00:59:26] Speaker 01:
Sure.

[00:59:26] Speaker 01:
So the places where this came up were before trial.

[00:59:30] Speaker 01:
We obviously opposed the 403 motion.

[00:59:32] Speaker 01:
And then we obviously opposed their new trial motion.

[00:59:34] Speaker 01:
And I think in the new trial motion, we said the same thing that we're saying to you on appeal, which is that

[00:59:40] Speaker 01:
Because this was not the cornerstone or even the backbone, I realize I'm mixing construction and biological metaphors, of the damages methodology.

[00:59:51] Speaker 01:
And that's confirmed not just because that's how the expert explained it, and not just because of the use to which the expert said he was putting it, but also from the numbers themselves.

[01:00:02] Speaker 01:
In other words, the expert did not try to

[01:00:04] Speaker 01:
say, here's the number from Qualcomm for five patents and you should award that number too.

[01:00:09] Speaker 02:
No, but aren't there some numbers that are just so big that if the jury hears Apple paid this number, that can't help but unfairly prejudice the jury to think, well, Apple kind of can do this.

[01:00:25] Speaker 03:
And don't we have a lot of cases that kind of pinpoint to that?

[01:00:30] Speaker 01:
I think that those cases, Judge Prost, kind of make my point for me because those are cases in which the expert sort of puts the finger in the wind and says, you know, here's a number, I think in this case, you should have a 25% of that number, for example.

[01:00:44] Speaker 01:
And this is not that because of the quite

[01:00:48] Speaker 01:
robust record about how this expert built his damages number.

[01:00:52] Speaker 01:
I certainly understand the concern about hearing a large number having an effect on the jury.

[01:01:00] Speaker 01:
I think that is for the district court, primarily to police in the first instance.

[01:01:03] Speaker 01:
And I don't know of a 403 case that reverses the district court's discretion on that point.

[01:01:11] Speaker 01:
I think the cases that Judge Prost is referring to are things that go to the inadequacy of the methodology used by the expert

[01:01:18] Speaker 01:
to justify relying on some big number.

[01:01:22] Speaker 02:
Because I asked Mr. Flynn, I'm just wondering your view.

[01:01:25] Speaker 02:
Hypothetically, if we were to order a new trial on infringement and damages, it seems to me in part there's a chance maybe the trial strategy next time doesn't even involve the Qualcomm license.

[01:01:39] Speaker 02:
I don't know.

[01:01:39] Speaker 02:
But the point being, who knows what evidence you're going to offer for damages at the next trial with all the issues here.

[01:01:47] Speaker 02:
the uncertainty maybe with UK should, do you have a view on whether we should be deciding the, what evidence?

[01:01:55] Speaker 02:
should have been admitted at the earlier trial if there's going to be a new trial?

[01:01:58] Speaker 01:
Well, I mean, and this takes me to the cross-appeal.

[01:02:03] Speaker 01:
This is on the assumption you don't win a cross-appeal.

[01:02:04] Speaker 01:
Yeah, right.

[01:02:05] Speaker 01:
So that's the point.

[01:02:06] Speaker 01:
That's the flag I wanted to plant.

[01:02:09] Speaker 01:
But on that assumption, obviously, we don't think you should order a new trial.

[01:02:13] Speaker 01:
If you were ordering a new trial on both infringement and damages, I don't think it's necessary to address this sort of particular

[01:02:22] Speaker 01:
weighing type or abuse of discretion.

[01:02:24] Speaker 03:
But don't you think if hypothetically we're in hypothetical land that we're in and we decide not to address it and we ultimately would disagree with what happened wouldn't it be just unbelievable if we got a new record here three years from now and we look at this and we say no it was prejudicial it shouldn't have come in that we do this again.

[01:02:46] Speaker 01:
So, and I thought that's what you were going to ask Judge Prosnan, and here's what I would say, is that I think in that circumstance, I think that rather than say on a Daubert-like ground, because I took the questions to be about more like the risk of unfair prejudice, that you're certainly open to the court to remind the district court to exercise not just its gatekeeping authority under 403,

[01:03:08] Speaker 01:
But it's authority to instruct the jury.

[01:03:11] Speaker 01:
And if this court were going to review it again, it would review not just the admission of the evidence in a vacuum, but in conjunction with whatever instructions the court gave the jury.

[01:03:25] Speaker 01:
You've been very patient and I'll be pretty net with it.

[01:03:31] Speaker 01:
The district court said correctly that Apple had stood silent during the pretrial and was perfectly content to let this case be tried.

[01:03:41] Speaker 01:
without prejudice.

[01:03:44] Speaker 03:
I'm not going to prejudice you from the side, but I have a question just about the record.

[01:03:48] Speaker 03:
At some point Judge Gilstrap says, I'm going to have a bench trial on Frant.

[01:03:53] Speaker 03:
So if the parties were satisfied with that, then

[01:03:59] Speaker 03:
Where is there a waiver?

[01:04:01] Speaker 03:
I mean, you know, I don't understand what went down.

[01:04:05] Speaker 03:
At what point did he say we're going to have a bench trial?

[01:04:07] Speaker 03:
And at that point, were the parties satisfied?

[01:04:09] Speaker 03:
So there was no further point to fight about this.

[01:04:13] Speaker 01:
So Mr. Fleming is going to stand up here and say, we weren't really satisfied with the bench trial because we have a proffer.

[01:04:19] Speaker 01:
We made a proffer at, I think, maybe Dave's bench trial.

[01:04:23] Speaker 01:
But the point about the bench trial is it never happened.

[01:04:26] Speaker 01:
No, it didn't.

[01:04:27] Speaker 01:
The court concluded that it lacked jurisdiction because it found the fran dispute to not be justiciable.

[01:04:37] Speaker 03:
Right.

[01:04:38] Speaker 01:
Right.

[01:04:38] Speaker 01:
Yeah.

[01:04:38] Speaker 01:
But that wasn't a fulsome... Sure.

[01:04:41] Speaker 01:
I'm sorry.

[01:04:41] Speaker 01:
I misunderstood your question.

[01:04:44] Speaker 01:
It didn't resolve the fran issue in that proceeding.

[01:04:47] Speaker 01:
And for that reason, there's really only one paragraph of reasoning in the passage in which the court grants the new trial motion.

[01:04:57] Speaker 01:
And that passage basically says, it's my job to see that justice is done.

[01:05:02] Speaker 01:
But the couple pages leading up to that is a long discussion of how Apple stood silent because it was very happy to keep this evidence out of the trial.

[01:05:11] Speaker 01:
He wasn't particularly happy with what you guys did either.

[01:05:14] Speaker 01:
Sure.

[01:05:14] Speaker 03:
Let me ask you, is your main argument about not needing the Fran trial, this thing about how apportionment, which was included in the first trial, is equivalent to what would be necessary in the Fran context?

[01:05:28] Speaker 01:
Is that your main argument?

[01:05:32] Speaker 01:
Two-part argument that's basically two sides of the same coin.

[01:05:36] Speaker 01:
The court didn't address prejudice at all, and the reason that there wasn't prejudice is the instructions that were given about apportionment.

[01:05:43] Speaker 01:
So I recognize that the apportionment instructions are not the same thing as an instruction that says you must consider the contractual obligation to be fair, reasonable, and non-discriminatory.

[01:05:54] Speaker 01:
But if you look at the instruction that was given in the second trial, that's basically all it said.

[01:05:59] Speaker 01:
It didn't explain what Frand was.

[01:06:01] Speaker 01:
It was a pretty net discussion of Frand.

[01:06:04] Speaker 01:
There was a royalty stacking instruction, but all the royalty stacking evidence came in in the first trial.

[01:06:09] Speaker 01:
So in other words, it's not as if the judge said, I don't want to hear anything about royalty stacking.

[01:06:13] Speaker 01:
He just didn't want the word Frand litigated in front of the jury.

[01:06:16] Speaker 01:
And so before deciding that the jury award was deficient, I think the court should have looked at the evidence, looked at the jury instructions, and assessed whether there was prejudice.

[01:06:27] Speaker 01:
And the court did not do that.

[01:06:29] Speaker 01:
Because the questions that the court said, that this court in Erickson said must be asked were asked about a portion.

[01:06:38] Speaker 03:
So what you're advocating in the cross-appeal is that we send it back, we would send it back to

[01:06:44] Speaker 03:
the district court judge to do a further, not more fulsome analysis?

[01:06:49] Speaker 01:
Well, we think that you can tell that there is no prejudice from the instructions and comparing the evidence from the first trial and the second trial and so on.

[01:06:57] Speaker 01:
We think that on this record, there's enough evidence that there wasn't any prejudice from just the omission of the word Fran or the inclusion of the jury instruction on Georgia Pacific Factor 5.

[01:07:08] Speaker 01:
I think those are kind of the two

[01:07:11] Speaker 01:
frandy things that have been identified as deficient in the first trial.

[01:07:17] Speaker 01:
But if the court thought, okay, the judge really shouldn't have done this without assessing prejudice and we don't want to assess prejudice ourselves, then I guess that would be our fallback that you would need an assessor for prejudice.

[01:07:31] Speaker 02:
But the main thing you're asked for on your cross appeal is reinstate the full verdict

[01:07:36] Speaker 02:
from the first trial.

[01:07:38] Speaker 01:
Right.

[01:07:38] Speaker 01:
And Mr. Fleming says, now, wait a minute.

[01:07:39] Speaker 01:
What about the other Rule 59 motions that we had against that verdict on damages?

[01:07:43] Speaker 01:
And that's fine.

[01:07:44] Speaker 01:
The district court would have to decide those at that point.

[01:07:47] Speaker 01:
I'm not suggesting that those are forfeited.

[01:07:49] Speaker 01:
But we are suggesting that you should reverse the grant of the new trial motion.

[01:07:53] Speaker 03:
OK.

[01:07:54] Speaker 03:
I can read the clock right.

[01:07:56] Speaker 03:
We're keeping it even.

[01:07:57] Speaker 03:
We'll give you three minutes of rebuttal, and we'll give you one minute if you need it on the cross field.

[01:08:03] Speaker 03:
I appreciate it.

[01:08:03] Speaker 03:
Thank you.

[01:08:10] Speaker 04:
Thank you, Your Honor.

[01:08:11] Speaker 04:
I appreciate the court's patience today.

[01:08:13] Speaker 04:
The only thing I'd add on the UK is one consideration that we've been very alive to is the risk that Optus was going to seek to double dip on the same US patents once in the US and once in the UK.

[01:08:25] Speaker 04:
And to the extent that that becomes a risk with further proceedings, it's something we flagged in our briefing.

[01:08:30] Speaker 04:
We, of course, reserve the right to come back, whether to this court or to the district court, for appropriate relief.

[01:08:35] Speaker 04:
But we're not asking for anything like that now, because as Mr. Jay said, there's more to be done in the UK.

[01:08:40] Speaker 04:
With respect to the verdict form, the argument in large measure seems to be that in order to make a narrower argument, we are required to make the broader argument.

[01:08:49] Speaker 04:
Obviously, there may come a day when this court has to address the possibility of claim by claim, but that's not this case.

[01:08:54] Speaker 04:
We're not pressing for it.

[01:08:55] Speaker 04:
We don't have to argue for the full reach of a principle in order to argue that what was done here was impermissible at its core.

[01:09:02] Speaker 04:
With respect to 101, I think that there's a full response to Mr. Jay's arguments in this court's decision in NRAE Board of Trustees of Stanford.

[01:09:11] Speaker 04:
That is the case

[01:09:12] Speaker 04:
where Stanford tried to get a patent on a particular mathematical calculation that was going to be used to improve the prediction of DNA haplotype phases.

[01:09:21] Speaker 04:
It was a particular application in a particular industry.

[01:09:24] Speaker 04:
It supposedly made things a lot better.

[01:09:26] Speaker 04:
And this court said, quote, merely an enhancement to the abstract mathematical calculation of the haplotype phase itself, close quote,

[01:09:34] Speaker 04:
is not enough for eligibility, just so here.

[01:09:37] Speaker 04:
Enhancing how you get the random numbers, random numbers that were already being used in the industry to determine where the phone is going to start its searching is not a patentable advance.

[01:09:47] Speaker 04:
Maybe there were debates among scientists as to which equation was best, but ultimately the only actual focus of the claim to advance is the equation and its abstract.

[01:09:57] Speaker 04:
With respect to means plus function, I just point out, Judge Prost, in response to your

[01:10:02] Speaker 04:
Mr. Jay referred back to column nine.

[01:10:03] Speaker 04:
I urge the court in repose to look at that text.

[01:10:07] Speaker 04:
Column nine, it's on page 338 of the appendix.

[01:10:10] Speaker 04:
It starts at line 26.

[01:10:11] Speaker 04:
It's the material that I summarized that ends with the fact that application of biotechnology is also possible.

[01:10:18] Speaker 04:
There is no structure there at all.

[01:10:19] Speaker 04:
It is the opposite of structure.

[01:10:21] Speaker 04:
Um, with respect to the Qualcomm agreements, the great big number came from the biggest number that was presented to the jury came from the settlement agreement.

[01:10:30] Speaker 04:
It wasn't relevant at all.

[01:10:31] Speaker 04:
Whatever Mr. J was saying about the relevance of how this license was structured, that perhaps could have been used.

[01:10:37] Speaker 04:
We'd have a different argument if that was all that it was, but it came in for the big number.

[01:10:41] Speaker 04:
It was mentioned in the opening statement.

[01:10:43] Speaker 04:
It was plastered on the slides.

[01:10:44] Speaker 04:
It was in bright red colors.

[01:10:46] Speaker 04:
It skewed the, uh, damages horizon for the jury.

[01:10:49] Speaker 04:
That was the intent.

[01:10:50] Speaker 04:
With respect to the cross-appeal, I think it's fully addressed in our yellow brief.

[01:10:57] Speaker 02:
Give us an example of specific evidence that was excluded from the first damage of trial that prejudice did.

[01:11:04] Speaker 04:
Absolutely.

[01:11:05] Speaker 04:
we were not able to say that a competitor could not discriminate against Apple in coming up with a license, a royalty rate.

[01:11:14] Speaker 02:
This was important because one of the... So it's not just that you couldn't say the words, friend, and non-discrimination.

[01:11:19] Speaker 02:
You couldn't prove that whole concept.

[01:11:21] Speaker 04:
Oh no, absolutely.

[01:11:22] Speaker 04:
And this was very important because their damages expert, Mr. Kennedy, said that Samsung, which owned one of these patents previously,

[01:11:28] Speaker 04:
was a competitor of Apple's.

[01:11:31] Speaker 04:
And so when they were sitting across the table from each other in a hypothetical negotiation, that competitor relationship, quote, would impact negotiations.

[01:11:38] Speaker 04:
That's 1870 and 71 of the transcript.

[01:11:41] Speaker 04:
He could not have said that if the jury had been instructed as to non-discrimination.

[01:11:45] Speaker 04:
And in fact, when we cross-examined him in the second trial, we specifically brought this up and he agreed.

[01:11:52] Speaker 04:
This is 3565 in the second trial.

[01:11:54] Speaker 04:
They have to be friend.

[01:11:55] Speaker 04:
They can't treat Apple worse because it's a competitor.

[01:11:57] Speaker 04:
Correct answer, that's right.

[01:12:00] Speaker 04:
And of course, all the non-discrimination points go to that.

[01:12:04] Speaker 04:
Thank you.

[01:12:04] Speaker 04:
Thank you very much, Your Honor.

[01:12:05] Speaker 03:
We want your minute for rebuttal on the cross appeal.

[01:12:11] Speaker 01:
I won't even take a minute.

[01:12:12] Speaker 01:
Footnote four of our cross appeal reply deals with the evidence that Mr. Fleming was just talking about and the basic point about the

[01:12:23] Speaker 01:
Georgia-Pacific factors not being structured to capture this nondiscrimination principle.

[01:12:27] Speaker 01:
I mean, the district court had said he would exclude any Georgia-Pacific factor that the parties asked him to exclude.

[01:12:33] Speaker 01:
And at the informal charge conference, Apple didn't ask him to strike factor five.

[01:12:38] Speaker 01:
And then when they brought it back up again, he said, but you didn't.

[01:12:41] Speaker 01:
I've struck everything that you asked me to strike.

[01:12:43] Speaker 01:
You didn't ask me to strike that one.

[01:12:45] Speaker 01:
And I guess the last thing I'll say is just in response to the point about double recovery.

[01:12:50] Speaker 01:
We're certain from the U.S.

[01:12:51] Speaker 01:
to the U.K.

[01:12:52] Speaker 01:
in response to what Mr. Fleming just said.

[01:12:55] Speaker 03:
Thank you very much.

[01:12:59] Speaker 03:
We thank both sides.

[01:13:00] Speaker 03:
It's been very helpful and we appreciate your contribution.

[01:13:03] Speaker 03:
Thank you.

[01:13:04] Speaker 03:
That concludes our proceedings.