[00:00:00] Speaker 06:
Our next case is number 24, 1072, Rex Medical LP versus Intuitive Surgical Inc.

[00:00:09] Speaker 06:
So Mr. Roberts is going to handle the damages appeal, and Mr. Milch is going to handle the cross appeal.

[00:00:16] Speaker 05:
That's correct, Your Honor.

[00:00:17] Speaker 06:
So we'll have separate timers for the two of them.

[00:00:23] Speaker 06:
OK, Mr. Roberts?

[00:00:25] Speaker 05:
Good morning, Your Honors.

[00:00:26] Speaker 05:
May it please the Court, John Roberts from Prospero Rose on behalf of Rex Medical.

[00:00:32] Speaker 05:
In the case below, a jury unanimously found that intuitive infringed Rex Medical's medical device patent, and it rejected each of intuitive's arguments challenging the patent's validity.

[00:00:45] Speaker 05:
The jury also found that the infringement caused Rex Medical $10 million in damages.

[00:00:49] Speaker 02:
Let me ask you, since time is limited, let me just ask you.

[00:00:51] Speaker 02:
Assume hypothetically that we were to agree with what the district court judge said and did with respect to damages.

[00:00:59] Speaker 02:
Her Daubert analysis, her non-JMOL, JMOL, her analysis there.

[00:01:05] Speaker 02:
So what we're left with, what do we do now?

[00:01:08] Speaker 02:
And your basis for a new trial, you say, under these circumstances, you get a new trial and you get to, in your brief you say, and reopen the record so that you could bring in new damages experts and get a complete do-over with a whole different case on damages.

[00:01:26] Speaker 02:
Is that what you think you're entitled to, and if so, why?

[00:01:29] Speaker 05:
So not necessarily, Your Honor, but just to be clear, and I know you know this, but we disagree with the Daubert analysis.

[00:01:34] Speaker 05:
We think also that the jury's verdict was supported.

[00:01:37] Speaker 05:
But assuming that you affirm the district court on those grounds, the patent statute requires that a prevailing patent owner be awarded no less than a reasonable royalty.

[00:01:51] Speaker 02:
in the Motorola case, which is... Let's assume they don't put on a case that establishes what that reasonable royalty rate consists of.

[00:01:58] Speaker 02:
Let's assume there's just no information in the record in which one could plausibly find that this was the amount of the royalty rate.

[00:02:06] Speaker 02:
What does one do then?

[00:02:08] Speaker 02:
Nominal damages?

[00:02:09] Speaker 02:
Do you agree there's such a thing as nominal damages in this context?

[00:02:12] Speaker 05:
There is such a thing as nominal damages, Your Honor, but here the jury was the fact finder.

[00:02:16] Speaker 05:
And what the jury heard

[00:02:17] Speaker 05:
was that there was a license that all the parties agree was comparable, the Covidian license.

[00:02:24] Speaker 05:
in which COVID didn't pay $10 million.

[00:02:26] Speaker 05:
The jury also heard.

[00:02:27] Speaker 02:
Let's assume that we, in the interest of time, we've read the briefs.

[00:02:31] Speaker 02:
We're not giving a short trip to your argument.

[00:02:33] Speaker 02:
I just need to move on.

[00:02:34] Speaker 05:
Sure, sure.

[00:02:35] Speaker 05:
But I think it's important to understand what the jury heard, because this is not a nominal damages case.

[00:02:41] Speaker 05:
The record is inconsistent with the idea of nominal damages.

[00:02:44] Speaker 06:
But we're trying to assume that you're wrong on the Daubert motion.

[00:02:50] Speaker 06:
and that the district court properly said that the expert could not testify, that there needed to be apportionment, there wasn't any apportionment testimony, and under those circumstances she granted a remittance.

[00:03:04] Speaker 06:
You, both sides, seemed to ignore the fact that under prevailing Supreme Court law,

[00:03:11] Speaker 06:
If there's a remittitor, there has to be an opportunity for a new trial.

[00:03:16] Speaker 06:
That's absolutely right.

[00:03:17] Speaker 06:
Well, you haven't made the argument very well.

[00:03:20] Speaker 05:
That isn't our brief, Your Honor, under the Hessel case.

[00:03:22] Speaker 05:
We're giving the district judge the benefit of the doubt here.

[00:03:25] Speaker 05:
I'm sorry.

[00:03:25] Speaker 04:
Sorry, I asked you a question.

[00:03:27] Speaker 04:
Sorry.

[00:03:28] Speaker 04:
Where do you think you made the argument that there was an error because the district court granted remittitor without giving you the alternative of the new trial?

[00:03:39] Speaker 05:
We cite the Hetzel case in our brief, which is the Supreme Court case.

[00:03:43] Speaker 04:
I understand.

[00:03:46] Speaker 04:
Citing a case doesn't often alone make an argument.

[00:03:50] Speaker 04:
And so could you explain to me, I can look at the pages in your brief and you can tell me why you think the paragraph you have on this, which I have flagged in my brief, was sufficient?

[00:04:07] Speaker 05:
are interpreting what the district judge did as effectively awarding zero damages.

[00:04:13] Speaker 04:
Are you interpreting that as effectively being JMAW, even though she used the word remitator?

[00:04:20] Speaker 05:
It was a JMAW motion on no damages, and that's what she granted.

[00:04:25] Speaker 04:
So you think she granted JMAW?

[00:04:27] Speaker 05:
Correct.

[00:04:27] Speaker 04:
And that she just mislabeled it remittitor.

[00:04:30] Speaker 02:
Correct.

[00:04:30] Speaker 05:
That's the argument we're making.

[00:04:31] Speaker 02:
If what the judge actually... A remittitor is something different, right?

[00:04:35] Speaker 02:
A remittitor is when you have an excessive verdict in somebody, if she had pared it down to $2 million or something.

[00:04:40] Speaker 06:
Correct.

[00:04:41] Speaker 06:
She called it a remittitor.

[00:04:43] Speaker 06:
She didn't call it J-Mole.

[00:04:45] Speaker 06:
She didn't.

[00:04:46] Speaker 06:
In fact, I think she specifically denied the J-Mole.

[00:04:51] Speaker 06:
If what the... Is that not correct?

[00:04:53] Speaker 06:
Is my recollection not correct?

[00:04:56] Speaker 05:
I'll have to look back at her exact words.

[00:05:00] Speaker 06:
Wait, wait, wait.

[00:05:01] Speaker 06:
You don't know what happened?

[00:05:04] Speaker 05:
The other side made a motion.

[00:05:06] Speaker 06:
Show me where this ruling appears in the record, OK?

[00:05:09] Speaker 06:
Yes.

[00:05:11] Speaker 06:
We need to figure out what the ruling was, and you don't seem to know.

[00:05:15] Speaker 05:
So the ruling appears at page 341 of the record.

[00:05:35] Speaker 02:
Are you talking about here the record is wholly lacking in evidence that would allow the court to determine a reasonable royalty?

[00:05:42] Speaker 05:
Correct.

[00:05:42] Speaker 02:
Is that Jamal type language in your view?

[00:05:46] Speaker 05:
Just a bit, I want to be clear about a couple things.

[00:05:50] Speaker 05:
If this was a remittitor, this is a very easy case.

[00:05:53] Speaker 05:
Because under the Hetzel case, as we cite in our brief, the judge was not permitted to pick a different number.

[00:06:00] Speaker 05:
The jury was the fact finder here.

[00:06:03] Speaker 02:
But if there were a difference, don't we have different buckets in the law and in the rules?

[00:06:07] Speaker 02:
There's a remittitor, and that's for excessive damages.

[00:06:09] Speaker 02:
And you need a new trial because somebody's juggling the numbers.

[00:06:13] Speaker 02:
Nominal damages, then there's a category of nominal damages, which seems like your view is, and I think I agree with that, it's kind of like almost a zero royalty.

[00:06:23] Speaker 02:
One dollar nominal damages is different than a remittitor, correct?

[00:06:30] Speaker 05:
That's the position that we were giving the district judge the benefit of the doubt.

[00:06:35] Speaker 05:
Because remitted error, under these circumstances, would clearly violate the seventh amendment.

[00:06:39] Speaker 02:
So you were giving the benefit of the doubt.

[00:06:41] Speaker 02:
In other words, whether she used the wrong term, it's clear when you read the record, she was not talking about recalculating it to $1 million.

[00:06:51] Speaker 02:
She was calculating it.

[00:06:52] Speaker 02:
Well, you say 100 times in your brief this was effectively zero.

[00:06:56] Speaker 01:
Effectively zero.

[00:06:56] Speaker 01:
Correct.

[00:06:57] Speaker 02:
So that you're sort of, whether it's not, you're putting a remittitor in one bucket.

[00:07:01] Speaker 02:
This is not really a remittitor, notwithstanding what word she chose to call it.

[00:07:05] Speaker 02:
And then you've got this other bucket of nominal slash zero royalty.

[00:07:09] Speaker 05:
Correct.

[00:07:10] Speaker 05:
That's exactly right.

[00:07:11] Speaker 05:
And just to be clear, if this was a remittitor, this is a very easy case.

[00:07:14] Speaker 06:
OK, but look.

[00:07:16] Speaker 06:
At 344, she says, defendant's motion for judgment of a matter of law or an alternative for a neutral and or remittitor is granted in part to the extent it seeks remittitor of nominal damages.

[00:07:27] Speaker 06:
and denied in part in all other respects.

[00:07:29] Speaker 06:
That looks to me as though what she thought she was doing was granting a remittitor and not granting Jamal.

[00:07:40] Speaker 05:
Well, I mean, it does say the motion for judgment as a matter of law is granted in part.

[00:07:44] Speaker 05:
That's also part of that sentence.

[00:07:45] Speaker 06:
No, it says to the extent it seeks remittitor, phenomenal damages, and denied in part in all other respects.

[00:07:53] Speaker 05:
So here's, I think, the right way to analyze this.

[00:07:57] Speaker 05:
If this was a remittitor in which the judge decided that record doesn't support $10 million, I think, in my view of the facts, the record supports $1 damages, that's a Seventh Amendment violation.

[00:08:13] Speaker 06:
But you view her as not really a remittitor, but as Granny J.

[00:08:19] Speaker 06:
If the court wants to decide that way, I think we argued it both ways.

[00:08:24] Speaker 06:
Don't talk over me.

[00:08:25] Speaker 06:
I'm sorry, right?

[00:08:27] Speaker 06:
Your argument is it's not a remitted term.

[00:08:29] Speaker 06:
It's JML, right?

[00:08:31] Speaker 05:
In our brief, we argued it both ways.

[00:08:33] Speaker 05:
We argued that to the extent this was a JML of not.

[00:08:38] Speaker 06:
Which is it?

[00:08:39] Speaker 06:
You said earlier in your argument it's JML.

[00:08:46] Speaker 05:
I'm reading what you're pointing out here, Your Honor.

[00:08:49] Speaker 05:
And I think you absolutely can read this as remittitor, which would be a Seventh Amendment violation.

[00:08:54] Speaker 06:
What's your position as to how it should be read?

[00:08:57] Speaker 05:
Based on what's written here, I think you're right, that that's how it should be read.

[00:09:00] Speaker 05:
And that is a Seventh Amendment violation.

[00:09:03] Speaker 02:
But does it satisfy the definition of remittitor as we all understand it in terms of it?

[00:09:11] Speaker 02:
And do you think that's the way she understood it?

[00:09:12] Speaker 02:
I mean, the alternative could be she used the wrong word.

[00:09:16] Speaker 02:
that was in the motion and she used the wrong word, but she also repeatedly says remitted her for nominal damages of one dollar.

[00:09:24] Speaker 02:
So it seems to be her analysis of remitted her is that those are the same thing and that's not the same thing.

[00:09:32] Speaker 05:
And that's why we argued it both ways, your honor, because I think the remitted her issue is very easy.

[00:09:38] Speaker 05:
It is a clear seventh amendment violation as we argued in our brief.

[00:09:42] Speaker 05:
To the extent that what she did was a JMAW, that she believes that the record compels a conclusion that there are zero damages, we explain why that is wrong as a matter of law.

[00:09:55] Speaker 05:
So either way, whichever way you look at it, there is reversible error here, and that we are entitled to a new trial.

[00:10:03] Speaker 04:
That's a remitted or it's not usually the proper label to use for something when you're talking about nominal damages, right?

[00:10:10] Speaker 04:
Or a dollar or zero.

[00:10:12] Speaker 04:
Normally, for that small amount, it would be JMAW, right?

[00:10:16] Speaker 05:
That's correct, Your Honor.

[00:10:17] Speaker 04:
OK.

[00:10:17] Speaker 04:
And on the other hand, OK, that's it.

[00:10:20] Speaker 04:
That's the end of the question.

[00:10:23] Speaker 04:
Thank you.

[00:10:24] Speaker 06:
All right.

[00:10:24] Speaker 06:
You want your end of your rebuttal time.

[00:10:27] Speaker 05:
Do you want to save?

[00:10:31] Speaker 05:
Since I'm through my time, I'd prefer to save the time for rebuttal.

[00:10:33] Speaker ?:
OK.

[00:10:34] Speaker 05:
OK.

[00:10:34] Speaker 01:
Thank you, Your Honor.

[00:10:40] Speaker 01:
Ms.

[00:10:40] Speaker 01:
Bostwick.

[00:10:44] Speaker 03:
May it please the court?

[00:10:56] Speaker 03:
I think the district court granted Jamal.

[00:11:04] Speaker 03:
I think, notwithstanding the language that was used,

[00:11:07] Speaker 03:
I want to first point out, Rex is saying today that they argued these things in the alternative in their brief.

[00:11:12] Speaker 03:
I don't think that's a fair reading of the briefing.

[00:11:14] Speaker 03:
They have one sentence at page 47 of their opening brief and one footnote.

[00:11:18] Speaker 03:
I believe it's page 20 of their reply brief.

[00:11:21] Speaker 03:
They do not go into this argument in any detail.

[00:11:23] Speaker 03:
Rather, what they said to this court was essentially that the district court would not have had the authority to reduce the $10 million to some other number.

[00:11:31] Speaker 03:
as in the Hetzel case.

[00:11:33] Speaker 03:
In other words, it would not have had the authority to do a truer meditator.

[00:11:35] Speaker 03:
I think everyone else is in agreement that what the district court did

[00:11:41] Speaker 03:
was Grant Jamal.

[00:11:42] Speaker 03:
The language that Your Honor Judge Prost pointed to at Appendix 338 makes that clear.

[00:11:47] Speaker 03:
Her finding is substance.

[00:11:49] Speaker 02:
So we know we've got remittitor at one end, but then we've got what she said repeatedly, more so than remittitor, was nominal damages.

[00:11:55] Speaker 02:
And in fact, in her judgment, final judgment, she doesn't use the word remittitor, but she does say nominal damages of $1.

[00:12:03] Speaker 02:
Is that the same thing as a Jamal?

[00:12:06] Speaker 03:
In this case, I would say yes.

[00:12:08] Speaker 03:
I think what is clear is that what the district court thought is what she said at appendix 338.

[00:12:13] Speaker 03:
There was no evidence at trial that would allow the jury or the court to ascertain the value of the 650 patent based on the covidian license.

[00:12:21] Speaker 03:
And the authority that she cited at page 334-4, she relied on this court's decision in tech sec.

[00:12:33] Speaker 03:
which is the decision to hold rejecting the statutory argument that Rex has presented to this court and holding that motion right.

[00:12:40] Speaker 04:
And it was every case that you started to do that case.

[00:12:43] Speaker 03:
Yes, your honor.

[00:12:44] Speaker 03:
And techsec, yes, it reduced the damages to zero, not $1.

[00:12:48] Speaker 03:
But, you know, Rex, again, repeatedly on their brief and here today has said that the $1 that the district court awarded

[00:12:54] Speaker 03:
was the functional equivalent of zero.

[00:12:57] Speaker 03:
In substance, what she's done is find a lack of proof of damages.

[00:13:02] Speaker 03:
If the problem is between $1 and zero and the court thinks that zero was the right answer,

[00:13:07] Speaker 03:
It's certainly within this court's authority to vacate the $1 award.

[00:13:09] Speaker 02:
The problem seems to be her repeated use of the word remittitor, which means something different and has different legal consequences.

[00:13:18] Speaker 02:
So what do we just say about that?

[00:13:19] Speaker 02:
Are we just say it's harmless error and to use the wrong word, or are we supposed to send it back to her and say, this is what we think you meant?

[00:13:29] Speaker 02:
And we think you may have misused the word remitted.

[00:13:32] Speaker 02:
What do you think?

[00:13:33] Speaker 02:
Is a remand necessary, or can we just surmise it from the rest of the record?

[00:13:39] Speaker 03:
I think it's, at most, harmless error.

[00:13:42] Speaker 03:
I don't think there's anything to surmise.

[00:13:44] Speaker 03:
Again, the substance of what she was doing was clear.

[00:13:46] Speaker 03:
And I'd refer to this court's decision in the Lindemann case, which has been cited in the briefing.

[00:13:50] Speaker 03:
There, this court said, yes, the district court used the term nominal damages.

[00:13:55] Speaker 03:
That isn't quite right, because there was an award of $10,000 in damages.

[00:13:59] Speaker 03:
but said, even though that's the word the district court used, that wasn't what it meant.

[00:14:04] Speaker 03:
And so this court didn't feel the need to send it back.

[00:14:06] Speaker 03:
In that case, I think the same result would be appropriate here.

[00:14:09] Speaker 02:
Do you think the judge, I mean, they make a lot of their briefings about how you have to give something under reasonable royalty in 284.

[00:14:15] Speaker 02:
Do you think that's why the judge picked nominal damages as seemingly to suffice the statutory argument they make here?

[00:14:24] Speaker 03:
I think that's a plausible interpretation of what she was doing.

[00:14:27] Speaker 03:
Again, the one thing that is absolutely clear that we know this district judge thought was that there was

[00:14:33] Speaker 03:
no evidence in this record that the evidence applying the standard was critically deficient of the minimum quantity of evidence from which a reasonable jury could award royalty, could assess the value

[00:14:43] Speaker 03:
of the 650 patent in the hypothetical negotiation.

[00:14:47] Speaker 06:
Let's address that question for a moment.

[00:14:51] Speaker 06:
Let's assume for the moment that we're dealing with a license agreement which dealt only with the two patents because there is evidence that the other patents didn't contribute to the $10 million royalty amount.

[00:15:04] Speaker 06:
So let's talk about the 650 and the 992.

[00:15:09] Speaker 06:
Why couldn't the jury conclude from that license agreement that at least some significant value was attributable to each of these patents and that each of the patents covered essentially the same

[00:15:24] Speaker 06:
technology, which seems to be the case.

[00:15:28] Speaker 06:
And while a $10 million award wouldn't be justified because that wouldn't apportion between the two patents, why couldn't the jury assume that a 50-50 division of the royalty amount between the two patents was a reasonable approach?

[00:15:43] Speaker 06:
That's not what they did, but isn't that some evidence that would support a royalty awardee, even without expert testimony about it?

[00:15:52] Speaker 03:
It's not, Your Honor.

[00:15:53] Speaker 03:
And again, the problem here is not the lack of expert testimony.

[00:15:56] Speaker 03:
It's the lack of any evidence, expert or otherwise.

[00:16:00] Speaker 03:
We obviously disagree that it was proper for the jury to have excluded all of the other patents.

[00:16:05] Speaker 03:
But assuming that we're just talking about the 650 and the 892, there is nothing in this record

[00:16:12] Speaker 03:
the trial record that would allow the jury to distinguish between those two patents, unlike Mr. Kidder.

[00:16:17] Speaker 06:
So doesn't the trial record say that they were directed to the same technology?

[00:16:20] Speaker 03:
No.

[00:16:21] Speaker 03:
Mr. Kidder's report said that.

[00:16:23] Speaker 03:
That is not in the trial record.

[00:16:25] Speaker 03:
And so there's a difference.

[00:16:26] Speaker 04:
Is there no testimony at all saying that they're directed to the same design or anything?

[00:16:31] Speaker 03:
No, Your Honor.

[00:16:33] Speaker 03:
And again, that's the choice that Rex Medical made.

[00:16:36] Speaker 03:
They had had their theory rejected at Daubert, and yet they went forward with a fact witness

[00:16:41] Speaker 03:
who presented the same theory but knew even less about the Covidian license than Mr. Kidder had and presented less evidence to the jury.

[00:16:49] Speaker 06:
Another thing that the District Court pointed out... How did that fact witness characterize the two patents?

[00:16:55] Speaker 03:
He didn't.

[00:16:55] Speaker 03:
He said he hadn't read them.

[00:16:56] Speaker 03:
This is Mr. Carter, Rex's president.

[00:17:00] Speaker 03:
He had not read the patents.

[00:17:01] Speaker 03:
He knew nothing about the patents.

[00:17:03] Speaker 03:
He said, I'm not an expert.

[00:17:04] Speaker 03:
And again, I think his key testimony is that Appendix 11481

[00:17:08] Speaker 03:
He was asked, do you think that you could put a value on the 650 patent?

[00:17:13] Speaker 03:
He said, I think it could be done by experts.

[00:17:15] Speaker 03:
He was asked, but not by you, quote, not by me.

[00:17:18] Speaker 03:
He says, I can't put a value on a 650 patent.

[00:17:22] Speaker 03:
And Rex put nothing else before the jury that would allow them to do so, including

[00:17:26] Speaker 03:
You know, again, I want to focus on the difference between what was in Mr. Kidder's report and what was presented at trial.

[00:17:31] Speaker 04:
I want to clarify an intuitive put forth, no expert testimony or anything else on damages.

[00:17:36] Speaker 03:
Correct.

[00:17:37] Speaker 03:
It was not our burden to do so.

[00:17:38] Speaker 03:
And so once they chose not to present a viable damages case, it wasn't our obligation to have our expert show up.

[00:17:45] Speaker 03:
Again, they could have, pre-trial, asked to call our expert in their case.

[00:17:50] Speaker 03:
And they considered doing so.

[00:17:51] Speaker 03:
They chose not to.

[00:17:52] Speaker 03:
They pursued a reconsideration motion that just asked the district court to change her mind.

[00:17:56] Speaker 02:
It seems like a lot of this is about the 892 and the 650.

[00:18:02] Speaker 02:
Was there argument, because I think that's what they say in their brief, that either one of those would support the 10 million.

[00:18:09] Speaker 02:
It wasn't that 50-50 or together.

[00:18:12] Speaker 02:
It was that there were two patents in the portfolio.

[00:18:15] Speaker 02:
I guess they're close enough so that either one of them would have survived.

[00:18:20] Speaker 03:
Yes, Your Honor.

[00:18:20] Speaker 03:
Again, that was Mr. Kidder's theory that was flawed.

[00:18:23] Speaker 03:
Mr. Carter didn't even get that far.

[00:18:24] Speaker 03:
But it was flawed on Mr. Kidder's part.

[00:18:26] Speaker 03:
Who didn't testify.

[00:18:27] Speaker 03:
Who did not testify, but in his report, which they're challenging the exclusion of, the one thing he said about those patents, he had one sentence that it said Appendix 3853 to 3854.

[00:18:38] Speaker 03:
He says they cover the same stapling innovation with design differences.

[00:18:43] Speaker 03:
Of course, those design differences are going to make all the difference to a licensee evaluating

[00:18:48] Speaker 03:
the scope of each patent against its products.

[00:18:51] Speaker 06:
And so even in Mr. Kitt... If they covered the same technology, you would think that in order to practice the technology, you'd have to have a license to both patents.

[00:18:58] Speaker 03:
Not necessarily, Your Honor.

[00:18:59] Speaker 03:
There are a difference between the claims.

[00:19:01] Speaker 03:
This is not on the record because Rex didn't do its job and present this evidence.

[00:19:05] Speaker 04:
I'm assuming if they were the same.

[00:19:07] Speaker 04:
Wouldn't you want to have the rights to both of them so you didn't have to have a second lawsuit?

[00:19:12] Speaker 03:
There may be cases where that's correct, Your Honor, but then someone needs to say that.

[00:19:16] Speaker 03:
And that's what Mr. Kidder didn't do.

[00:19:19] Speaker 03:
He didn't analyze the difference between the two patents.

[00:19:22] Speaker 03:
He didn't have Rex's technical expert do so.

[00:19:25] Speaker 03:
He just treated them as a functional unit, saying that most of the value in the Chavitian license

[00:19:30] Speaker 03:
was likely in either one.

[00:19:34] Speaker 02:
Just a sub point on this, and I think the district court judge hit this at least in a footnote.

[00:19:40] Speaker 02:
Even just the 650 patent,

[00:19:43] Speaker 02:
It had gone, certain of the claims had been gone down during the IPR after the covidian license.

[00:19:50] Speaker 02:
And the only claim left was claim six, but the others all went down in the IPR.

[00:19:55] Speaker 02:
So with respect to the 650 patent, we're still looking at a different valuation, a different claim.

[00:20:01] Speaker 02:
Was there any evidence in the record about how the various claims should be apportioned given that most of them went down in the IPR?

[00:20:08] Speaker 03:
There was no evidence in the record.

[00:20:10] Speaker 03:
I want to be clear.

[00:20:10] Speaker 03:
It's not just claim six that survived the IPR.

[00:20:13] Speaker 03:
But for example, claims four and five were invalidated in the IPR.

[00:20:17] Speaker 03:
And that's not just a, oh, we're not advocating a rule that you have to do claim by claim apportionment in every case.

[00:20:23] Speaker 03:
But that difference made a difference in this case.

[00:20:26] Speaker 03:
Mr. Kidder's opinion for why the 650 patent would be particularly valuable was because it had an I-beam.

[00:20:32] Speaker 03:
And an I-beam is necessary in the accused products.

[00:20:34] Speaker 03:
The claims that just cover an I-beam without more, claims four and five, were invalidated.

[00:20:40] Speaker 03:
And so it made a difference to the basis of his opinion.

[00:20:42] Speaker 03:
Of course, again, his opinion never even got to the jury.

[00:20:45] Speaker 03:
The jury heard none of this.

[00:20:47] Speaker 03:
The jury heard nothing about, even if you thought that you could treat the 650 and the 892 patent as a functional unit, the jury heard nothing to compare

[00:20:58] Speaker 03:
the amount that Covidian paid versus intuitive.

[00:21:01] Speaker 03:
They heard intuitive sales from 2018 to 2022.

[00:21:04] Speaker 03:
There was a stipulated fact.

[00:21:06] Speaker 03:
They heard nothing about Covidian sales.

[00:21:08] Speaker 03:
And as the district judge pointed out, Appendix 11780, she says, I don't know.

[00:21:13] Speaker 03:
So intuitive sales were $607 million in those four years.

[00:21:16] Speaker 03:
She said, I don't know.

[00:21:17] Speaker 03:
Did Covidian have $5 billion in sales?

[00:21:20] Speaker 03:
What is the jury supposed to do with that?

[00:21:22] Speaker 03:
There's no way to translate.

[00:21:24] Speaker 03:
The jury heard nothing about Covidian sales.

[00:21:28] Speaker 04:
undertones, I think, in the appellant's brief is that all of the ruling, excluding its expert's testimony, was four days prior to trial.

[00:21:37] Speaker 04:
What role, if any, does that play here as we think about these issues and the failure to

[00:21:45] Speaker 04:
provide evidence to the jury.

[00:21:48] Speaker 03:
I think if Rex had made different choices, it might play a different role.

[00:21:51] Speaker 03:
Here, they didn't choose.

[00:21:53] Speaker 03:
They had many options available to them.

[00:21:54] Speaker 03:
The district court, in her opinion, referred back to appendix 11792 to 793, where she outlined many of the things that they could have done.

[00:22:03] Speaker 03:
One that's not in there, but that certainly was open to them.

[00:22:05] Speaker 03:
They could have asked for a continuance if they were concerned about the timing.

[00:22:08] Speaker 03:
They didn't do that, right?

[00:22:10] Speaker 03:
They could have still brought Mr. Kidder to trial.

[00:22:12] Speaker 03:
Who could have?

[00:22:12] Speaker 03:
For example, he was precluded from testifying to his opinion about the Covidian license.

[00:22:17] Speaker 03:
He was not precluded from talking about Covidian sales, which was in his report.

[00:22:21] Speaker 03:
That's one of the things that didn't go to the jury.

[00:22:23] Speaker 03:
He, of course, had another opinion on the Boston scientific license.

[00:22:26] Speaker 03:
It was not just a benchmark.

[00:22:27] Speaker 03:
Your Honors have his report in the appendix.

[00:22:29] Speaker 03:
You can see that he did a full Georgia-Pacific analysis on it.

[00:22:32] Speaker 03:
They could have asked to call our expert.

[00:22:33] Speaker 03:
They could have brought fact witnesses.

[00:22:35] Speaker 03:
They could have put some evidence into the record

[00:22:38] Speaker 03:
that would have allowed a reasonable jury to value the 650 patent.

[00:22:41] Speaker 06:
They didn't do so.

[00:22:42] Speaker 06:
Did the district judge say that he couldn't testify about the license or he couldn't testify about the license without apportionment?

[00:22:51] Speaker 03:
She held that he couldn't testify to his opinion about the Chavitian license because it was unapportioned.

[00:22:56] Speaker 06:
Where's the ruling on that?

[00:22:57] Speaker 03:
That's at appendix five to six.

[00:23:00] Speaker 06:
Five.

[00:23:01] Speaker 03:
Five to six.

[00:23:03] Speaker 06:
Five to six.

[00:23:04] Speaker 03:
Yeah, it's at the very beginning of the opinion is the dollar grant.

[00:23:10] Speaker 03:
And the key language is, at Appendix 6, the court finds that Mr. Kidder's methods in relying on the Covidian license are unreliable and must be excluded.

[00:23:21] Speaker 03:
The court will grant this portion of defendant's motion.

[00:23:24] Speaker 03:
And then she, in her J-Mall ruling, comes back to this and explains, again, the scope of her ruling.

[00:23:31] Speaker 04:
I am nearing- Did he have changed his analysis to actually apportion at that point?

[00:23:38] Speaker 04:
or would that have been too late because you wouldn't have had an opportunity to take a deposition and all of that?

[00:23:45] Speaker 03:
We don't know the answer to that question because, again, Rex didn't ask.

[00:23:48] Speaker 06:
What did he say in this expert report?

[00:23:51] Speaker 03:
About which?

[00:23:52] Speaker 06:
About apportionment.

[00:23:53] Speaker 06:
Did he just?

[00:23:55] Speaker 03:
So as to the patents aside from the 650 and the 892, he relied on two things.

[00:24:00] Speaker 03:
One, he did.

[00:24:01] Speaker 06:
OK, but I'm just talking about these two.

[00:24:03] Speaker 03:
About these two, he has one single sentence, 3853 to 3854.

[00:24:06] Speaker 03:
It's the sentence I quoted to your honors earlier.

[00:24:09] Speaker 03:
It is that they cover the same stapling innovation with design differences.

[00:24:13] Speaker 03:
Again, he didn't look at any of the other patents to see if those also covered the same stapling innovation.

[00:24:19] Speaker 03:
He didn't look at whether Covidian was selling products outside the United States that embodied that stapling innovation.

[00:24:24] Speaker 06:
Why shouldn't he be permitted to testify that they covered the same technology?

[00:24:29] Speaker 03:
Because he doesn't do anything with that.

[00:24:32] Speaker 03:
There's a difference between what he says in his report and what Rex argued to the district court.

[00:24:36] Speaker 03:
And this was the basis for the district court granting the Daubert motion in Appendix 5.

[00:24:41] Speaker 03:
Rex says that the opinion he gave was, look, these are the same basic invention.

[00:24:45] Speaker 03:
And so a license to one, once you have a license to one, the other adds marginal value.

[00:24:49] Speaker 03:
That's not in Mr. Kidder's report.

[00:24:51] Speaker 03:
That is Rex's attorney argument.

[00:24:53] Speaker 03:
All he said were they're different design choices.

[00:24:55] Speaker 03:
And again, the implication from that

[00:24:57] Speaker 03:
is that the scope of the two patents would matter differently to different companies with different products, different aspects to the claims.

[00:25:04] Speaker 03:
The 892 patent claims require a handle.

[00:25:07] Speaker 03:
The 650 patent claims, unlike the 892, require both of the upper and lower portions to be inside the jaws of the device.

[00:25:15] Speaker 03:
The 892 doesn't.

[00:25:16] Speaker 03:
I think it's instructive.

[00:25:18] Speaker 03:
By the time the Kavidian license was entered, Rex had dropped the 650 patent against Kavidian.

[00:25:23] Speaker 03:
In our case, they dropped the 892.

[00:25:26] Speaker 03:
That suggests that there is a difference between the two.

[00:25:28] Speaker 03:
And despite Mr. Kidder's emphasis on which patents are asserted, which patents are asserted, he knew that 892 was, excuse me, the 650 was no longer asserted against the committee and by the time of license, he didn't account for that distinguishing fact.

[00:25:42] Speaker 06:
Unless the further questions about damages, we'll give you five minutes to address the cross appeal.

[00:25:47] Speaker 03:
Yes, Your Honor.

[00:25:48] Speaker 03:
Thank you.

[00:25:49] Speaker 03:
And of course, the court need not reach.

[00:25:51] Speaker 06:
Could you reset the funds?

[00:25:53] Speaker 03:
damages if it agrees with us that intuitive does not infringe or that claim six is invalid.

[00:25:58] Speaker 03:
We've laid out three different bases for this in our briefing.

[00:26:02] Speaker 06:
Happy to address any of the- Hold on.

[00:26:04] Speaker 06:
You have to run the clock.

[00:26:07] Speaker 06:
Give her five minutes and run the clock.

[00:26:08] Speaker 06:
Thank you.

[00:26:09] Speaker 03:
Thank you, Your Honor.

[00:26:11] Speaker 03:
I'm happy to address any of the three, but I'd like to propose starting with the construction of lower portion.

[00:26:17] Speaker 03:
The claim six recites a beam that has one.

[00:26:21] Speaker 04:
You said we don't need to address these issues if we agree to arm damages?

[00:26:25] Speaker 03:
No, Your Honor.

[00:26:25] Speaker 03:
I want to be very clear.

[00:26:26] Speaker 03:
If the court agrees with us on liability, it does not need to reach damages.

[00:26:31] Speaker 03:
Even if the court affirms on damages, the liability issues are still alive.

[00:26:39] Speaker 03:
It's the court.

[00:26:39] Speaker 02:
This was a counterclaim in non-affirmative defense.

[00:26:42] Speaker 02:
I'm sorry.

[00:26:43] Speaker 03:
No, never mind.

[00:26:45] Speaker 02:
The invalidity.

[00:26:47] Speaker 03:
The invalidity, I believe, was a counterclaim, yes, Your Honor.

[00:26:53] Speaker 03:
If the court agrees with us on any of the three grounds of liability, then it would be reversal, and then the court would not need to reach damages.

[00:27:00] Speaker 03:
So turning to lower portion.

[00:27:06] Speaker 03:
Sorry, I'm looking at the clock, and I'm not sure that's correct.

[00:27:08] Speaker 03:
OK, thank you, Your Honor.

[00:27:10] Speaker 03:
Claim 6 recites a beam with three distinct parts, three distinct structural components that serve three distinct functions.

[00:27:18] Speaker 03:
It distinguishes between the upper and lower portions of the beam and then the web that is coupled between them.

[00:27:24] Speaker 03:
The district court's claim construction, however, did not allow the jury to distinguish between those two, she said, at appendix 11387.

[00:27:32] Speaker 03:
that the lower portion may include additional materials or structures that extend in a perpendicular direction beyond the lower most section of the beam.

[00:27:41] Speaker 04:
Do you have a comprising claim and you have rather vague language like lower portion?

[00:27:46] Speaker 04:
How can we read the specification into the claim?

[00:27:51] Speaker 04:
I feel like you're asking us to read the preferred embodiment into the claim.

[00:27:56] Speaker 03:
I disagree, Your Honor.

[00:27:58] Speaker 03:
I think this is a classic case of interpreting the claims in view of the specification.

[00:28:02] Speaker 03:
The specification exclusively and repeatedly depicts a beam in an I shape.

[00:28:06] Speaker 03:
In other words, two horizontal bars that are parallel to each other and a vertical bar that's coupling them.

[00:28:12] Speaker 03:
And whether you want to say it has to be the term I beam or not, in substance, it comes down to the same thing, the spec consistently at columns five and six.

[00:28:21] Speaker 03:
Those are the places where it discusses the beam.

[00:28:23] Speaker 03:
It exclusively discusses this.

[00:28:25] Speaker 03:
I-shaped configuration and calls only that bottom part running horizontally the lower portion.

[00:28:32] Speaker 03:
And also, the spec makes clear that the function that those perform, right?

[00:28:36] Speaker 04:
The lower portion of the big means this horizontal line?

[00:28:43] Speaker 03:
I don't think we even have to get to lexicography, right?

[00:28:45] Speaker 03:
Lexicography and disavow will come into play if you're trying to depart from the plain and ordinary meaning

[00:28:51] Speaker 03:
in view of the specification and here our position is just that the person of ordinary skill reading this specification would understand the beam to have this eye shape and the lower and upper portions to be these two horizontal parts look at this claim and i think to myself you know they don't want to limit themselves to an eye beam they use the language beam and they don't want to limit themselves to you know the preferred environment so there's some wiggle room there

[00:29:16] Speaker 03:
It's not a preferred embodiment.

[00:29:17] Speaker 03:
It's the sole embodiment.

[00:29:18] Speaker 03:
And again, the function that these things are describing is consistent with the shape.

[00:29:22] Speaker 03:
But at minimum, I would say, there's a reason REX isn't defending the district court's actual construction on appeal and is instead proposing a different one.

[00:29:30] Speaker 03:
Because the problem with the district court's construction is it does not allow for any distinction

[00:29:34] Speaker 03:
between the lower portion and the web.

[00:29:39] Speaker 03:
You can include materials that extend in a perpendicular direction beyond the lower most section.

[00:29:44] Speaker 03:
How far?

[00:29:44] Speaker 03:
How far up the web can you go?

[00:29:46] Speaker 03:
How is a jury supposed to know how to distinguish between these three separately claimed components?

[00:29:51] Speaker 03:
It doesn't allow you to do so.

[00:29:52] Speaker 03:
Neither does Rex's construction, which is just, oh, it's whatever is below the web.

[00:29:57] Speaker 03:
There's simply no way to

[00:29:58] Speaker 03:
to figure out what is the lower portion.

[00:30:00] Speaker 03:
And that matters because the claim assigns particular functions to the lower portion.

[00:30:05] Speaker 03:
And so to figure out, if you're a potential infringer and you're looking at this claim, how do I know how to stay outside of it?

[00:30:12] Speaker 03:
If you can't tell the difference between the lower portion and the web, you can't do that.

[00:30:16] Speaker 02:
Can I just go back to your first point?

[00:30:18] Speaker 02:
Why would we reach, if we hypothetically agreed that there was a Jmall zero damages, I can see why we reached the validity case because that goes further.

[00:30:28] Speaker 02:
But why do we care about whether the rightness or wrongness of the infringement judgment?

[00:30:34] Speaker 03:
I'm sorry, Your Honor.

[00:30:36] Speaker 03:
Rex is still, the 650 patent is expired, but Rex is still asserting

[00:30:41] Speaker 03:
This and related patents it filed a lawsuit as early as the beginning of this year and so intuitive does not want to risk any kind of effect of the time period.

[00:30:53] Speaker 03:
No you're right.

[00:30:54] Speaker 03:
Right.

[00:30:54] Speaker 06:
We're still within the six years of the but the the infringement allegations in this case cover what time period.

[00:31:03] Speaker 03:
It starts in 2018.

[00:31:04] Speaker 06:
It goes up to the present.

[00:31:07] Speaker 03:
Yeah.

[00:31:07] Speaker 03:
To the expiration of the patent which was twenty twenty two.

[00:31:11] Speaker 06:
I'm not understanding how the other case is different then.

[00:31:15] Speaker 03:
The other case is against a different company.

[00:31:17] Speaker 03:
My point is that REPS is still asserting patents in these families.

[00:31:20] Speaker 03:
We don't know what they're going to assert against.

[00:31:22] Speaker 06:
But it's not your company.

[00:31:23] Speaker 03:
Not right now.

[00:31:24] Speaker 03:
We don't know what they're going to do in the future.

[00:31:25] Speaker 03:
The problem is we're still in a period of risk.

[00:31:28] Speaker 06:
I'm not understanding this.

[00:31:29] Speaker 06:
There's this other case.

[00:31:30] Speaker 06:
Why do we care about the other case?

[00:31:32] Speaker 06:
If there's no liability against your client, why isn't the issue, as Judge Pro suggested, the issue of infringement moot?

[00:31:44] Speaker 03:
If the court wants to vacate the infringement verdict as moot in light of the no damages, we would happily accept that.

[00:31:50] Speaker 03:
What we don't want is an affirmance of the liability verdict just because the zero damages is affirmed.

[00:31:56] Speaker 03:
There are consequences that could flow from a judgment of liability.

[00:32:01] Speaker 03:
And so the point is we believe the liability verdict is wrong for the reasons we've laid out.

[00:32:06] Speaker 03:
But at minimum, yes, the court should vacate it as moot.

[00:32:09] Speaker 06:
All right, we'll give you a minute for the bubble.

[00:32:12] Speaker 06:
Thank you, Your Honor.

[00:32:13] Speaker 06:
So Mr. Roberts, you're going to address damages.

[00:32:16] Speaker 06:
You've got about five minutes.

[00:32:18] Speaker 06:
How do you want to divide the time?

[00:32:20] Speaker 00:
Your Honor, if I may, may I please?

[00:32:21] Speaker 00:
The Court is very briefly on the claim construction issue.

[00:32:23] Speaker 06:
No, no, no, no, no.

[00:32:26] Speaker 06:
We'll hear from Mr. Roberts first on the damages.

[00:32:31] Speaker 06:
How do you want to divide the time?

[00:32:33] Speaker 06:
We've got five minutes.

[00:32:35] Speaker 05:
I'll take three if I could.

[00:32:38] Speaker 06:
3 and then 2?

[00:32:39] Speaker 06:
Okay.

[00:32:39] Speaker 06:
Yes.

[00:32:43] Speaker 05:
So good morning again, Your Honor.

[00:32:44] Speaker 05:
It's John Roberts from Prospero Rose.

[00:32:46] Speaker 06:
I just wanted to... You need to start running the clock.

[00:32:48] Speaker 05:
I just want to... Sorry.

[00:32:49] Speaker 05:
I just want to respond to a couple of points.

[00:32:51] Speaker 05:
There was a question about whether remand was necessary, and I think the answer is, as I said earlier, whether this is a remittitor, which would... It would violate... If it were a remittitor, it would violate the Seventh Amendment, and we're required to get a new trial on damages.

[00:33:06] Speaker 05:
If it was a J-Mall, then the district court erred because the evidence doesn't compel the conclusion that zero is the only reasonable royalty.

[00:33:16] Speaker 06:
Why is that?

[00:33:17] Speaker 05:
Because there was evidence at trial that the jury heard that Covidian paid $10 million for a license to the 650 patent in addition to other patents.

[00:33:26] Speaker 05:
There was also testimony from Mr. Carter, which we cite in our brief, in which Mr. Carter explained that it was the 650 patent and the 892 patent that drove the value

[00:33:36] Speaker 05:
for Covidian of that 10 million dollars.

[00:33:39] Speaker 05:
That evidence shows that the and also Mr. Carter testified that the two patents were in the same patent family.

[00:33:46] Speaker 05:
What that evidence shows is that a license to the 650 patent has some value

[00:33:53] Speaker 02:
But isn't it your burden to demonstrate what value?

[00:33:56] Speaker 02:
If you've got 100 patents in a portfolio, we can assume, likely, that each one of them has some value.

[00:34:04] Speaker 02:
But that's not enough to support a jury verdict.

[00:34:07] Speaker 05:
Understood, Your Honor.

[00:34:08] Speaker 05:
And we believe Mr. Kidder did the necessary apportionment.

[00:34:12] Speaker 05:
I'm putting that aside for now because I know this is a hypothetical question you're asking.

[00:34:17] Speaker 05:
Mr. Carter, though, explained that from Covidian's point of view, it was those two patents that are in the same family that were driving the value of the $10 million.

[00:34:27] Speaker 05:
What that shows is that zero is not a reasonable royalty under those circumstances.

[00:34:33] Speaker 05:
So the jury, who was the fact finder here, determined that 10 million was a reasonable royalty.

[00:34:39] Speaker 04:
Now, if the judge... It almost assumes that the apportionment was OK, because there was nothing.

[00:34:49] Speaker 04:
No apportionment of the foreign patents.

[00:34:52] Speaker 04:
There were 32 patents listed.

[00:34:54] Speaker 05:
Yes, but what Mr. Carter testified was that it was the 650 and the 892 that, from Covidian's perspective, were driving the value.

[00:35:01] Speaker 05:
Those were the two that Covidian cared about.

[00:35:04] Speaker 02:
So Jerry would have had to surmise that the two of those were identical and of equal value, independent of one another, to satisfy the $10 million.

[00:35:13] Speaker 05:
Not necessarily.

[00:35:14] Speaker 05:
There was other evidence in the record suggesting that intuitive would value these patents more than Covidian would.

[00:35:21] Speaker 05:
This court's case law is clear that damages is not a precise science.

[00:35:25] Speaker 05:
The jury hearing all of this evidence that intuitive would have valued these patents more, that Covidian put all the value in those two patents, which were in the same family.

[00:35:35] Speaker 02:
And what about the fact that the 650 was a different, a lot of the claims had been struck?

[00:35:41] Speaker 02:
I know we don't do it on a claim by claim, but shouldn't that come into the discussion?

[00:35:45] Speaker 02:
Shouldn't that come into the discussion?

[00:35:47] Speaker 05:
I think the answer is that claim by claim apportionment has never been required by this court.

[00:35:53] Speaker 05:
What this court requires is for the jury to have a basis for ascribing a certain value to a particular patent.

[00:36:05] Speaker 05:
And Mr. Carter's testimony gave them that.

[00:36:07] Speaker 05:
And what this court's cases also say is the only situation

[00:36:12] Speaker 05:
in which a court, as a matter of law, can award zero royalty damages is if the record compels that conclusion.

[00:36:23] Speaker 05:
The court was not the fact finder here.

[00:36:24] Speaker 05:
The jury was the fact finder.

[00:36:26] Speaker 05:
The jury heard the facts, and the jury determined that $10 million was a reasonable royalty.

[00:36:32] Speaker 06:
We're assuming you that's wrong and that there was no evidence to support so then the And and the question is whether there's evidence that would support some other award and Making Jamal and appropriate and new trial appropriate and so what's the other evidence that both licenses were covered by?

[00:36:52] Speaker 06:
Both patents were covered by a single license and

[00:36:56] Speaker 06:
That's about what you got, right?

[00:36:58] Speaker 06:
And the value of that combined license was $10 million.

[00:37:02] Speaker 06:
Why is that enough?

[00:37:05] Speaker 05:
As well as Mr. Carter's testimony, that it was these two patents that Covidian cared about, and that was driving the value of the license for Covidian.

[00:37:15] Speaker 06:
That's Phil just saying that those two patents account for the $10 million.

[00:37:20] Speaker 06:
But it doesn't tell the jury how to apportion between the two.

[00:37:26] Speaker 05:
accepting your premise, because we think it does sufficiently do apportionment, but even if it didn't, the solution is a new trial.

[00:37:34] Speaker 02:
But when you say a new trial, do you automatically mean it would be a new trial on this record, or that you should be allowed to reopen discovery?

[00:37:41] Speaker 02:
Because your brief says new trial, i.e.

[00:37:45] Speaker 02:
we can get a reopened discovery, we can move forward on a new trial with new evidence,

[00:37:49] Speaker 05:
witnesses so that that that would be up to the district court whether the district court reopens the discovery record but we would submit that there is more than enough evidence in the record already below to support a

[00:38:03] Speaker 05:
reasonable royalty here, including the kiddo report, which we think should be admitted.

[00:38:07] Speaker 05:
But, you know, that's that's a question for you.

[00:38:10] Speaker 02:
That's the legal question before us.

[00:38:11] Speaker 02:
Understood.

[00:38:12] Speaker 02:
How does it change on the same record?

[00:38:14] Speaker 02:
How does anything change?

[00:38:15] Speaker 02:
You have a new trial, same record, same testimony.

[00:38:17] Speaker 02:
We're back where we were before three years from now.

[00:38:20] Speaker 05:
In addition, we have the Covidian license, Mr. Carter's testimony that the 650 and the 892 patent drove the value of the Covidian license.

[00:38:28] Speaker 05:
We have Mr. Juergens, the technical expert.

[00:38:30] Speaker 02:
for Rex Medical who testified that the... So you're just a do-over of the trial as it was when you did it two years ago?

[00:38:38] Speaker 05:
Again, it's up to the district court whether the district court could easily reopen discovery and allow any, to the extent there is an apportionment problem, be resolved quite easily in this case.

[00:38:47] Speaker 05:
But what this court's cases have held

[00:38:52] Speaker 05:
is that the only situation, 284 says that a prevailing patent owner is entitled to a reasonable royalty, nothing less than a reasonable royalty.

[00:39:00] Speaker 05:
The rare exceptions are if the patent owner waives it's right, which did not occur here, no one's arguing that, or if the record supports that conclusion.

[00:39:10] Speaker 05:
And here, the fact finder heard the evidence.

[00:39:12] Speaker 05:
The fact finder found a non-zero royalty.

[00:39:15] Speaker 05:
The only way that the district judge can overrule the fact finder and determine as a matter of law that there is a zero royalty under the Motorola case and other cases of this court is if the record compels the conclusion that zero is the only royalty.

[00:39:29] Speaker 06:
I think we're out of time.

[00:39:30] Speaker 06:
What's the other questions?

[00:39:32] Speaker 06:
All right.

[00:39:33] Speaker 06:
Mr. Mills, you have two minutes.

[00:39:35] Speaker 06:
Thank you, Your Honor.

[00:39:40] Speaker 00:
Very briefly, Your Honor, may I please the court on claim construction?

[00:39:43] Speaker 00:
Because that's the only point that was raised.

[00:39:45] Speaker 00:
The district court got the claim construction right.

[00:39:48] Speaker 00:
This is a textbook case where the jury got it right as well.

[00:39:52] Speaker 00:
The district court's construction of plain meaning, where on the eve of trial, intuitive asked for some clarification about that plain meaning.

[00:40:00] Speaker 00:
And the judge provided it.

[00:40:01] Speaker 00:
She said it may include additional structure.

[00:40:04] Speaker 00:
But the plain meaning was absolutely the correct construction.

[00:40:07] Speaker 00:
where Rex has now introduced this notion that anything below the web is the lower portion.

[00:40:12] Speaker 00:
That's entirely consistent with the argument that was made throughout the case.

[00:40:16] Speaker 00:
When questioned on the stand, Mr. Juergens, Rex Medical's expert, testified that every time, in every instance, he started with the claim language, again, requires three distinct portions.

[00:40:27] Speaker 00:
He said he starts with the web.

[00:40:28] Speaker 00:
That's the thin portion in the middle.

[00:40:30] Speaker 00:
What's below it is the lower portion.

[00:40:32] Speaker 00:
What's above it is the upper portion.

[00:40:34] Speaker 00:
And there are clear pictures.

[00:40:35] Speaker 00:
Again, this is pointing to the pictures in the patent, figures 14 and 15.

[00:40:40] Speaker 00:
But then also, when looking at it in the real world circumstance, in looking at the short form stapler that was the accused product, you look at appendix 12058 or page 36 of the yellow brief, there are images that show clear delineations between where Mr. Juergens started with the web, the lower portion below it, and the upper portion above it.

[00:41:02] Speaker 06:
Okay.

[00:41:03] Speaker 06:
Thank you.

[00:41:05] Speaker 06:
Ms.

[00:41:05] Speaker 06:
Bosswood, you have a minute on the cross-bill.

[00:41:11] Speaker 03:
Yes, Your Honor.

[00:41:12] Speaker 03:
I'm going to very briefly correct a misstatement from my original presentation.

[00:41:16] Speaker 03:
The invalidity was an affirmative defense, not a counterclaim.

[00:41:19] Speaker 03:
Again, we don't think that makes a key difference, but I did want to correct the record here.

[00:41:23] Speaker 03:
Just on claim construction, again,

[00:41:26] Speaker 03:
Rex is not defending the construction the district court actually issued.

[00:41:29] Speaker 03:
They are ignoring what happened.

[00:41:30] Speaker 03:
She did not simply instruct plain and ordinary meaning.

[00:41:32] Speaker 03:
11835 of the appendix is where claim construction was given to the jury.

[00:41:37] Speaker 03:
The jury was instructed, quote, lower portion has its plain and ordinary meaning, which may include some additional material or structures that extend in a perpendicular direction beyond the lower most sections of the beam.

[00:41:50] Speaker 03:
Again, there's no way for a jury to distinguish between those three different structures.

[00:41:56] Speaker 03:
And the patent not only distinguishes between the structures, it gives each of them different functions.

[00:42:02] Speaker 03:
And so the problem with the district court's construction is that it reduces a claim that says the lower portion does this to an infringement read that says anything in the beam can do it.

[00:42:12] Speaker 03:
We'd ask the court to reverse it.

[00:42:13] Speaker 03:
Can I ask a damages question?

[00:42:14] Speaker 03:
Yes, Your Honor.

[00:42:15] Speaker 04:
How do you respond to the argument that evidence doesn't compel occlusion, that damages is zero?

[00:42:20] Speaker 04:
You know, assuming, OK, you've got the video license, and you've got testimony that the drivers are the 650 and the 802.

[00:42:28] Speaker 04:
Assuming that's the only thing, one might think there's something, some value.

[00:42:32] Speaker 04:
Maybe it's $2 million.

[00:42:33] Speaker 04:
Maybe it's $5 million.

[00:42:34] Speaker 04:
I don't know.

[00:42:35] Speaker 04:
Why isn't that good enough to require the trial judge to remit?

[00:42:41] Speaker 03:
A few responses, Your Honor.

[00:42:42] Speaker 03:
Number one, I'd urge the court to go back and look at what Mr. Carter actually said.

[00:42:45] Speaker 03:
He did not say that those two patents were the drivers of the license.

[00:42:48] Speaker 03:
In fact, he was prevented from testifying about a lot of the negotiations based on a FRE 408 issue.

[00:42:56] Speaker 03:
Similarly, all of the evidence that REC cites in its brief, I could walk through it, but I'm short on time.

[00:43:01] Speaker 03:
The evidence that they say about a market opportunity or something special about 60 millimeters or the 650 patent was really necessary, if you look at what they're citing, it simply does not say that.

[00:43:12] Speaker 03:
And on the legal point, it's not

[00:43:14] Speaker 03:
Only if a reasonable only if the record compels a conclusion of a zero royalty this court said in tech sack And the Third Circuit said in dev ex if the patent owner fails to satisfy its burden to prove the amount of damages Then it gets nothing.

[00:43:27] Speaker 06:
Thank you your honor Okay, thank all counsel