[00:00:00] Speaker 04:
The next case is Rothschild Connected Devices Innovations versus Copacola, 2024, 1253.

[00:00:11] Speaker 04:
We're ready when you are, Mr. Carey.

[00:00:12] Speaker 01:
Thank you.

[00:00:15] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:17] Speaker 01:
I'm John Carey, counsel for the plaintiff, Pat Noor.

[00:00:21] Speaker 01:
There are two main issues in this appeal.

[00:00:24] Speaker 01:
The first issue is one of claim construction.

[00:00:27] Speaker 01:
The construction of only one term is at issue.

[00:00:30] Speaker 01:
the communication module term of the sole patent institute, the 377 patent.

[00:00:34] Speaker 04:
It's basically the order of the steps.

[00:00:37] Speaker 01:
That's correct, Your Honor.

[00:00:39] Speaker 04:
And doesn't the plain meaning of the claim dictate the order?

[00:00:44] Speaker 01:
Not in this case, Your Honor, because there are no, there's no explicit

[00:00:52] Speaker 01:
There's no explicit language in the claim that would compel an order of steps, like in many of the other cases where you have words like first, second, before, after, and so forth.

[00:01:04] Speaker 01:
Here, there's none of that.

[00:01:06] Speaker 03:
What about the antecedent basis?

[00:01:09] Speaker 03:
Does the antecedent basis support that there's an order in the claim?

[00:01:14] Speaker 01:
It does not, Your Honor.

[00:01:16] Speaker 01:
And the reason why it doesn't here is the same reason it did in this court's Respironics case, which we cited in the briefing.

[00:01:26] Speaker 01:
The use of a to introduce one entity and then later in the claim referred to the same entity as the whatever doesn't compel an order of steps.

[00:01:38] Speaker 01:
It just means that you're talking about the same entities.

[00:01:43] Speaker 03:
So where it says a user interface model configured to receive an identity of a user and identifier of the beverage, that has to be the same identity and identifier

[00:01:57] Speaker 03:
through the rest of the claim.

[00:01:59] Speaker 01:
Yes, Your Honor.

[00:01:59] Speaker 01:
It has to be the same information, but it doesn't mean that one thing has to be transmitted or received before another thing.

[00:02:05] Speaker 01:
It just refers to the same information.

[00:02:07] Speaker 01:
In this case, user identity.

[00:02:09] Speaker 03:
But it does mean that the identity and identifier of the beverage has to be received from the user interface module, right?

[00:02:21] Speaker 01:
That's correct, although that's not an issue in this appeal.

[00:02:24] Speaker 01:
There was a prior appeal, as Judge Post knows.

[00:02:28] Speaker 03:
I'm just saying that when you interpret the later terms, you've got to remember what happened before.

[00:02:34] Speaker 03:
And whatever it is that the communication module is dealing with, it has to be the identity of the user and the identifier of the beverage that was

[00:02:43] Speaker 03:
received by the user interface model?

[00:02:45] Speaker 01:
Well, not in terms of temporally, all right, because it's an apparatus claim and we're just talking about components that do things, but the information has to be the same.

[00:02:54] Speaker 01:
The information, the user IDs and the beverage identifiers that are processed in the communications module are the same user IDs and beverage identifiers that are

[00:03:10] Speaker 01:
processed in the user interface module.

[00:03:11] Speaker 02:
So the data is not understanding, but the claim itself has the word and what we think is the second step of the sequence.

[00:03:18] Speaker 02:
And it says, based on the identity of the user and the identifier.

[00:03:23] Speaker 02:
So why doesn't that come from having performed first step first?

[00:03:27] Speaker 02:
It says, based on.

[00:03:28] Speaker 02:
Am I completely misreading this claim?

[00:03:31] Speaker 01:
In the comm module there, Your Honor, the claim recites the receipt of beverage product preferences

[00:03:38] Speaker 01:
based on a user identifier and a beverage identifier.

[00:03:42] Speaker 02:
And step one involves the transmit, transmit the identity of the user and the identifier, correct?

[00:03:49] Speaker 02:
So why wouldn't common sense dictate that one comes before two?

[00:03:54] Speaker 01:
I wouldn't call it a step, Your Honor.

[00:03:55] Speaker 01:
I would say that the comm module is a component of an apparatus claim that has certain capabilities.

[00:04:01] Speaker 01:
And one capability, it's got to be able to transmit certain information to a server.

[00:04:07] Speaker 01:
It also has to have a separate capability of receiving other data from the server, and then it has a third capability, required capability, of communicating certain information to a controller, which is another component within the beverage dispenser.

[00:04:25] Speaker 01:
Well, no.

[00:04:25] Speaker 02:
There's a lot of discussion in the briefing about what rules we apply if we apply different rules to method claims and apparatus claims.

[00:04:33] Speaker 02:
And you referred to that a couple of minutes ago.

[00:04:36] Speaker 02:
Why isn't the district court's reading of the claim as a sequential listing the most natural reading of the claim?

[00:04:46] Speaker 02:
Well, because first- But can we apply your distinction under the law in terms of the difference between apparatus and method?

[00:04:53] Speaker 01:
This court's precedent on this issue is, I believe, very well established in the Altairist case and interactive gift cases.

[00:05:02] Speaker 01:
And where the claim language doesn't explicitly recite an order, for example, with words like first, second, third, before, after, then there's a legal presumption that the claims do not recite an order.

[00:05:15] Speaker 01:
So that's where we start here, because this claim doesn't have any explicit recitation of order.

[00:05:23] Speaker 04:
It just has language, and language has meaning in preferences based on the identity of the user and the identity of the beverage.

[00:05:35] Speaker 04:
It just naturally flows from the language.

[00:05:38] Speaker 01:
Here, Your Honor, our reading is that beverage product preferences are based upon the user ID and the preferences.

[00:05:46] Speaker 01:
And like our software expert said,

[00:05:49] Speaker 01:
Steel is based on iron.

[00:05:52] Speaker 01:
Paint is based on oil and water.

[00:05:53] Speaker 01:
In this invention, the beverage product preferences are based on, i.e., they're built around user IDs and beverage IDs.

[00:06:02] Speaker 01:
And so the based on phrase modifies what the preferences are.

[00:06:09] Speaker 01:
And in fact, that's the first introduction of the phrase preferences in the claim right there.

[00:06:13] Speaker 01:
And so the claim is telling the reader what the preferences are, how to understand what the preferences are.

[00:06:19] Speaker 01:
It's not dictating an order of steps.

[00:06:23] Speaker 01:
And again, there aren't steps here.

[00:06:27] Speaker 01:
So all the claim requires is the COM module that has capabilities of transmitting and receiving and communicating certain data.

[00:06:36] Speaker 01:
And there's no...

[00:06:40] Speaker 01:
Just like in the user interface module that was the subject of the prior appeal, it doesn't have to do any of those things before or after anything else necessarily.

[00:06:50] Speaker 03:
One of your arguments is, regardless of the claim construction, the accused product satisfies the claim limitation, right?

[00:07:03] Speaker 03:
Could you walk through, just a minute, because I wasn't exactly clear on how you're reading

[00:07:09] Speaker 03:
the claim on the accused's product.

[00:07:10] Speaker 03:
Could you walk through that?

[00:07:12] Speaker 01:
Yes, Your Honor.

[00:07:13] Speaker 01:
But before I delve into that, which is the second issue, I do have one critical comment to make on this first issue.

[00:07:19] Speaker 01:
And then if it's OK with Your Honor, I'll answer that question.

[00:07:22] Speaker 04:
Now I'll pass up an opportunity to answer Judge's question.

[00:07:27] Speaker 01:
I was hoping to have the opportunity to answer that question.

[00:07:31] Speaker 01:
It's the second issue on appeal.

[00:07:32] Speaker 01:
And I will.

[00:07:34] Speaker 01:
I could move back to claim construction later.

[00:07:37] Speaker 01:
I just logically.

[00:07:38] Speaker 03:
It's your time.

[00:07:39] Speaker 03:
Go ahead.

[00:07:39] Speaker 03:
Either answer the question right now, or just back and forth.

[00:07:42] Speaker 03:
You're just wasting your time.

[00:07:43] Speaker 01:
OK.

[00:07:44] Speaker 01:
On the claim construction issue of order of steps, there's one other critical piece of information here for the court to keep in mind.

[00:07:53] Speaker 01:
this Court's well settled precedent that claims should not be construed to exclude disclosed embodiments in Petronix and other cases.

[00:08:00] Speaker 01:
There is a disclosed embodiment of this patent in which the receipt of the beverage product preferences from the server takes place irrespective of the transmission of user IDs and beverage IDs from the dispenser's comm module.

[00:08:17] Speaker 01:
And that is cited in our brief, its column

[00:08:23] Speaker 01:
A to the patent at lines 48 to 57.

[00:08:27] Speaker 01:
And then this disclosed embodiment, it says that periodically a server will download a database of product preferences cross-referenced to user IDs through a plurality of beverage dispensers.

[00:08:38] Speaker 01:
And after a user identifies themselves to the dispenser via the user interface module and or the com module, the controller retrieves the preferences from memory that had been downloaded from the server without accessing the server.

[00:08:53] Speaker 01:
So in this situation, in this embodiment, the dispenser did not transmit anything to the server first in order to then get back the beverage product preferences.

[00:09:09] Speaker 01:
In this situation, the server

[00:09:12] Speaker 01:
Periodically downloaded, without being asked to by the dispenser, it automatically downloaded, periodically downloaded the preferences and they were stored in the dispenser.

[00:09:22] Speaker 01:
And then the user comes up later and accesses those.

[00:09:24] Speaker 03:
It seems quite different because then the element of transmitting the identity of the user and identifying the beverage to a server of the network isn't performed.

[00:09:32] Speaker 01:
In this embodiment, it's not.

[00:09:34] Speaker 01:
And this is how it works.

[00:09:36] Speaker 01:
This embodiment that I just cited is actually claimed in dependent claim 13, if you look at it.

[00:09:42] Speaker 01:
And dependent claim 13 depends on claim 11, which is the independent claim we're talking about here.

[00:09:49] Speaker 01:
So independent claim 11, its scope has to be broad enough to cover the dependent claim, which doesn't require this sequential order.

[00:09:58] Speaker 01:
All right?

[00:10:00] Speaker 01:
There you go.

[00:10:01] Speaker 01:
I mean, that's a disposed embodiment.

[00:10:03] Speaker 01:
It's within the scope of claim 11.

[00:10:05] Speaker 01:
And it demonstrates that this required order of steps was not appropriately inferred and imposed on this claim.

[00:10:15] Speaker 01:
Moving on to your honor's question about even if you agree with the district judge about the order of steps claim construction, we still

[00:10:27] Speaker 01:
They're still infringement, and the district judge should not have granted summary judgment of non-infringement in the defendant's favor.

[00:10:35] Speaker 01:
We offered unrebutted evidence, which was never even refuted.

[00:10:42] Speaker 02:
Is this a DOE?

[00:10:44] Speaker 01:
No, literally, I'm good.

[00:10:47] Speaker 01:
You're right, Your Honor, it is.

[00:10:48] Speaker 01:
And what was this evidence?

[00:10:49] Speaker 01:
This evidence was deposition testimony from Coca-Cola's witnesses

[00:10:54] Speaker 03:
It was... Could you just walk through the theory?

[00:10:56] Speaker 03:
Like, what is... map the claim limitations to the accused product?

[00:11:02] Speaker 01:
Okay.

[00:11:02] Speaker 01:
It's really very simple, Your Honor.

[00:11:04] Speaker 01:
What the District Court found... So, the District Court imposed this order of steps limitation on the COM module.

[00:11:10] Speaker 01:
And what is your argument?

[00:11:11] Speaker 03:
Okay, so the three... We understand.

[00:11:12] Speaker 03:
We've read the records.

[00:11:13] Speaker 01:
Right.

[00:11:13] Speaker 01:
The three steps that the District Court imposed had to be done in a certain order.

[00:11:17] Speaker 01:
Whereas, first, COM module has to transmit user IDs and BEV IDs to a server.

[00:11:24] Speaker 01:
Number one.

[00:11:25] Speaker 01:
And then two, COM module has to receive back beverage product preferences from that server based on those IDs.

[00:11:34] Speaker 01:
And then three, COM module communicates that information to a controller that pours a drink.

[00:11:39] Speaker 03:
And your accused product is the COM module, or for the accused product, are you relying on the app?

[00:11:44] Speaker 01:
Well, OK.

[00:11:46] Speaker 01:
Under the original claim construction that was in force before the summary judgment propounded this brand new claim construction about order of steps, the accused component for comm module was the modem on the dispenser.

[00:12:00] Speaker 01:
And the modem does all three things.

[00:12:02] Speaker 01:
Indisputably, it does all three things.

[00:12:04] Speaker 01:
It just doesn't do them.

[00:12:04] Speaker 01:
in the order that the judge came up with on summary judgment.

[00:12:09] Speaker 01:
The one thing it doesn't do in order.

[00:12:11] Speaker 02:
I got to stop you there, because maybe I've misread the record in its entirety.

[00:12:15] Speaker 02:
But the judge, this was in the papers, in the filings, before the summary judgment motion.

[00:12:20] Speaker 02:
The other side's expert talked about the sequence of steps being required.

[00:12:26] Speaker 02:
This wasn't the first time we heard about this being the sequence from the district court's order.

[00:12:31] Speaker 02:
Am I wrong about that?

[00:12:32] Speaker 01:
The district court, they never brought this argument to the district court until they followed the summary judgment motion.

[00:12:38] Speaker 01:
It was not ever before the district court at any point in time.

[00:12:40] Speaker 02:
It wasn't referenced in any of the filings or in any of the expert reports that this was the sequence?

[00:12:46] Speaker 01:
Coca-Cola filed an expert report on remand.

[00:12:50] Speaker 02:
Can I just, you're saying no or yes to my question.

[00:12:53] Speaker 01:
Yes, on remand, their second expert report, their expert said, there's an order of steps here.

[00:13:00] Speaker 01:
Even though it's not in the claim construction order, there's an order of steps here.

[00:13:03] Speaker 02:
OK, so it was in the record, and it was argued before the claim constructed, before the district court came up with it.

[00:13:09] Speaker 01:
It was not argued anywhere.

[00:13:10] Speaker 01:
It was just in a report, an 100-page expert report.

[00:13:14] Speaker 01:
It was not presented to the court.

[00:13:15] Speaker 01:
They didn't ask the judge to do a new claim construction, modify his claim construction order, and enter this construction.

[00:13:23] Speaker 01:
Instead, they just moved for summary judgment, made the argument for the first time on summary judgment, the second summary judgment.

[00:13:29] Speaker 04:
Counsel, you're halfway through.

[00:13:31] Speaker 04:
You have a lot of time.

[00:13:33] Speaker 04:
Continue or save?

[00:13:34] Speaker 01:
Your Honor, to answer your question, the evidence of infringement under the sequential theory, the one thing that the modem doesn't do in the required order is just the first step, the transmission of the user ID and the BAB ID to the server.

[00:13:47] Speaker 01:
That is done in their system through the freestyle mobile app, which is on the user's phone.

[00:13:54] Speaker 01:
all sorts of evidence on that that we cite in the brief.

[00:13:59] Speaker 01:
It's that when the user

[00:14:01] Speaker 01:
establishes their preferences using their phone app.

[00:14:05] Speaker 01:
The phone generates the beverage IDs and their user IDs, and it sends that information.

[00:14:10] Speaker 03:
I have a question I need to ask you.

[00:14:13] Speaker 03:
So are you saying that the communication module in your alternative theory is the freestyle mobile app combined with the modem on the dispenser?

[00:14:22] Speaker 01:
Yes.

[00:14:23] Speaker 01:
If there's an order of steps,

[00:14:24] Speaker 01:
The order of steps is met by the record evidence, which is unrebudded in the record, by the combination of the modem with the app.

[00:14:32] Speaker 01:
The app does the one step in the right order that the modem did not.

[00:14:37] Speaker 01:
And that evidence has never been rebutted.

[00:14:39] Speaker 01:
And it's how the system works indisputably, that the app sends the user ID, the BEP ID, to the server first.

[00:14:47] Speaker 01:
And then that server now has that information

[00:14:50] Speaker 01:
and is able to send it to the dispenser for the pouring of the beverage.

[00:14:53] Speaker 01:
So the theory is, if this claim construction, this brand new claim construction, which was thrust upon us at summary judgment, is correct,

[00:15:02] Speaker 01:
We still have a genuine issue of material fact regarding infringement under the combination of the app and the modem being the comm module.

[00:15:13] Speaker 01:
And the law is clear that a defendant cannot split the operations or the functions of a patented element into two things, that that still constitutes infringement under the Doctrine of Equivalence.

[00:15:25] Speaker 01:
Thank you.

[00:15:26] Speaker 04:
Thank you, counsel.

[00:15:27] Speaker 04:
You have used up all your time, and there will be no rebuttal.

[00:15:32] Speaker 04:
Mr. Hughes.

[00:15:34] Speaker 00:
Good morning.

[00:15:35] Speaker 00:
Thank you, Your Honor.

[00:15:37] Speaker 00:
May it please the Court, Paul Hughes for the Coca-Cola Company.

[00:15:41] Speaker 00:
I'd be happy to begin anywhere that the Court may wish to direct.

[00:15:45] Speaker 00:
I'll say, as my colleague said, there are two issues in the case.

[00:15:48] Speaker 00:
The first is the sequencing issue.

[00:15:51] Speaker 00:
The second is the doctrine of equivalence argument.

[00:15:55] Speaker 00:
I'll start with the sequencing, unless the Court wishes for me to go elsewhere.

[00:16:00] Speaker 04:
Well, there is no equivalence issue.

[00:16:02] Speaker 04:
It's not a question of one substituting for another.

[00:16:05] Speaker 04:
It's a question of the order.

[00:16:06] Speaker 04:
It's claim construction, right?

[00:16:09] Speaker 00:
Well, on the doctrine of equivalence issue, Your Honor, or sorry, you're asking about the sequencing.

[00:16:13] Speaker 00:
Yeah, on the sequencing, Your Honor, I think it's just plain and ordinary meaning of the language that this recites various steps in which the information is transmitted, then the server

[00:16:26] Speaker 00:
does things with it, it has to provide a user-generated beverage preference that is based on the information it received in the prior step.

[00:16:35] Speaker 00:
That's then received by the communication module, and then only after that information is received by the communication module can the communication module direct the controller to mix the particular beverage.

[00:16:48] Speaker 00:
So I think that the inherent logic of the claim, as the district court correctly found, is that it necessitates

[00:16:55] Speaker 00:
an ordered understanding of these steps.

[00:16:59] Speaker 00:
And again, I think that based on language is a very clear indicator.

[00:17:03] Speaker 02:
Well, what about, I mean, the tricky thing in this case for me at least is what if we agree with the client instruction entirely?

[00:17:10] Speaker 02:
The problem is, on the second issue in this case, the district court seems to have relied on the fact that this wasn't a claim construction.

[00:17:19] Speaker 02:
And therefore, that was the basis upon which he rejected the DOE claim.

[00:17:25] Speaker 02:
And if we disagree with that, just that sort of regular premise, like was this claim construction or not, which is neither here nor there in most cases,

[00:17:34] Speaker 02:
because it's given, arguably, it was plain construction.

[00:17:38] Speaker 02:
What do we do with the second piece of this case?

[00:17:40] Speaker 00:
Thank you, and I have a few different responses to that.

[00:17:43] Speaker 00:
Now, I think the framework for which the Court would review this is abuse of discretion, because this is the Court saying this argument, which again, our CBI acknowledges, was not put before the Court

[00:17:53] Speaker 00:
in the expert reports or in the infringement contentions.

[00:17:56] Speaker 00:
They recognize that they would have to go back and amend the expert reports, the infringement contentions, and essentially reopen discovery.

[00:18:02] Speaker 00:
So it's committed to the district court's discretion in case management as to whether to do so.

[00:18:07] Speaker 00:
So the starting point is the framework here is abuse of discretion from the district court.

[00:18:11] Speaker 00:
To the court's question, though, do we think of this as technically claim construction or summary judgment?

[00:18:17] Speaker 00:
I'm going to talk in a moment where there might be a little bit that I think

[00:18:21] Speaker 00:
overindexed on that question.

[00:18:23] Speaker 00:
But starting there, I think it's well understood that whenever a court is applying claim language, be it there's already a claim construction or if there's plain, ordinary meaning to the facts of a particular case, that necessarily requires some refinement of the language.

[00:18:39] Speaker 00:
And what the district court here, I think, said and indicated at page 41 of the appendix is if in every time that the parties don't present something to the court because they understand it to be plain, ordinary meaning,

[00:18:50] Speaker 00:
And then the court engages in refinement of plain and ordinary meaning in applying that claim language to the particulars of the infringement record before it.

[00:19:00] Speaker 00:
If that can be called a new claim construction, such that the losing party basically can restart discovery all over, there's no end to that.

[00:19:09] Speaker 00:
What the district court said at page 41 is that would permit parties opposing summary judgment to repeatedly move the goalposts by changing their arguments and reopening discovery whenever they lose.

[00:19:20] Speaker 00:
In order where I think the court's case law comes out on this, so my friend cites the Eonette case and the TechSec case.

[00:19:30] Speaker 00:
And what those cases suggest is if a party doesn't have notice that there is a particular argument in a case.

[00:19:36] Speaker 00:
So in those cases, if a district court sua sponte adopts a new argument that was never presented before the court, that would be unfair to a party.

[00:19:45] Speaker 00:
And the party, in those circumstances, has more right to say, I want to go back and amend my contentions and reopen discovery.

[00:19:54] Speaker 00:
Here, though, and I think Your Honor was getting to this with my colleague, this was quite clear that this was in the case.

[00:20:01] Speaker 00:
So this starts back in January of 2021.

[00:20:05] Speaker 00:
There was a hearing before the district court on remand.

[00:20:08] Speaker 00:
And our CDI said very clearly in this hearing that it was going to amend its contentions to include the Freestyle Act.

[00:20:15] Speaker 00:
At appendix page 10,199, counsel said, so where we couldn't accuse the mobile app of being part of the infringing device before in light of its new construction, now we can and we will.

[00:20:29] Speaker 00:
Again, at that same page, the statement was, now we will supplement our contentions to assert that the mobile app is a component of the infringing device.

[00:20:36] Speaker 00:
So they were on notice that if they wanted to make this doctrine of equivalence argument, they had it available.

[00:20:41] Speaker 00:
And then moving forward,

[00:20:43] Speaker 00:
to our expert report.

[00:20:44] Speaker 00:
This came in June of 2022.

[00:20:46] Speaker 00:
The expert report said that his understanding of the Planned Ordinary Meeting was sequencing, and that was a very strong component of his argument that there was sequencing in the claims.

[00:20:58] Speaker 00:
This was not lost on our CDI because in its rebuttal report, this is in Mr. Curley's report at Appendix Page 19,692,

[00:21:09] Speaker 00:
disagrees based on what we've been calling the first argument, that there is no sequencing, so the quote-unquote post-porg message suffices, but never says at this time, oh, and I have an additional argument of the freestyle device could be a doctrine of equivalence.

[00:21:24] Speaker 00:
It's only until we get to the opposition motion for summary judgment.

[00:21:28] Speaker 00:
That occurs in January of 2023, so two years after we were told that there would be amendments for the freestyle app and seven months after

[00:21:37] Speaker 02:
When you make a very, very strong case, perhaps, on the lack of diligence, the difficulty is that the district court didn't rely on that.

[00:21:47] Speaker 02:
Am I wrong about that?

[00:21:49] Speaker 00:
What the district court relied on, I think, was the local patent rule, which says you need to go back and you had to ask to amend at some point earlier, and they didn't.

[00:21:58] Speaker 00:
And I think there's a reason why they didn't amend, because this wasn't briefed in the district court, because this issue just wasn't injected in the district court.

[00:22:07] Speaker 00:
But the app argument, I think, is essentially a dead to rights loser under this court's recent case law in cloud of change versus NCR.

[00:22:15] Speaker 02:
What, are you asking us on appeal to decide whether it's the merits of that case?

[00:22:19] Speaker 02:
So that's not helpful.

[00:22:21] Speaker 00:
Well, Your Honor, but what it does go to is what the district court said was this was a strategic decision not to include it.

[00:22:27] Speaker 00:
The district court made the precise finding that this was a strategic call by our CDI to advance one theory and not the other theory.

[00:22:35] Speaker 00:
And I'm just suggesting the reason for that is because Coca-Cola cannot direct and control the user app, there's no contractual obligation that demands a user use this app, you would be in a circumstance where for it to be an apparatus, it has to be one person or one entity putting the apparatus into service and controlling all elements.

[00:22:56] Speaker 00:
And this court's opinion in December of last year in the Cloud of Change case, I think, makes clear

[00:23:02] Speaker 00:
in that circumstance where you have a user who is engaging in particular activities, there has to be a very tight level of control.

[00:23:11] Speaker 00:
And the level of control that would exist here is far less than what the court found insufficient in December in cloud of change.

[00:23:18] Speaker 00:
So I just think that underscores the tactical reasons as to why this was only appeared after it was clear that our CDI was going to lose on their principle theory of infringement that they sought to pivot.

[00:23:31] Speaker 00:
And I don't think it was an abuse of discretion for the district court to say it was too late.

[00:23:37] Speaker 00:
And that's appropriate application of the Northern District of Georgia's local rules.

[00:23:42] Speaker 00:
But more broadly, the district court's discretion to be able to manage its docket before it.

[00:23:50] Speaker 00:
One just small last point to Judge Stoll's question about the embodiment at the bottom of Column 8.

[00:24:00] Speaker 00:
This is Appendix 89, Column 8, Line 48 to 56.

[00:24:03] Speaker 00:
I think my colleague recognized that in that embodiment, the communication module never actually performed the first step of transmitting the identifier of the beverage to a server.

[00:24:15] Speaker 00:
So because that's not actually performed in the embodiment,

[00:24:18] Speaker 00:
I don't think that actually benefits our CDI in suggesting that there is some sort of tug against the sequencing that is required.

[00:24:28] Speaker 00:
At the end of the day, Your Honors, I think this is about the discretion of the district court.

[00:24:33] Speaker 00:
This was an argument that they were well on notice of.

[00:24:37] Speaker 00:
For two years, we were told that there would be freestyle app would be amended in.

[00:24:41] Speaker 00:
There was seven months of knowledge from when the argument appeared in Coca-Cola's expert report.

[00:24:47] Speaker 00:
And there was a lack of due diligence.

[00:24:49] Speaker 00:
This is not a scenario in which a district court opinion on summary judgment invented a new claim construction or some new argument that was otherwise unknown to the party.

[00:25:00] Speaker 00:
There was a lack of diligence here.

[00:25:02] Speaker 00:
And so I don't think the district court abuses discretion in saying it was not going to restart over the discovery process in these circumstances.

[00:25:09] Speaker 00:
That would open the floodgates, as the district court judge pretty carefully observed in the opinion.

[00:25:16] Speaker 00:
I'll be taking more questions or else.

[00:25:19] Speaker 04:
Thank you to both counsels for the case to submit it.

[00:25:21] Speaker 00:
Do you want to know the bottle?

[00:25:24] Speaker 04:
No bottle for you.

[00:25:26] Speaker 04:
Use your time.