[00:00:00] Speaker 01:
We have three argued cases today.

[00:00:02] Speaker 01:
The first is number 23, 2320, Wilco Marsh Buggies and Draglines, Inc.

[00:00:08] Speaker 01:
versus Weeks Marine, Inc.

[00:00:10] Speaker 01:
This is Addie.

[00:00:12] Speaker 04:
Good morning, Your Honors.

[00:00:14] Speaker 04:
This case turns on two patent law errors.

[00:00:18] Speaker 04:
First, the improper application of anticipation.

[00:00:22] Speaker 04:
The Mudmaster references require combining documents from different machine models

[00:00:29] Speaker 04:
and different times.

[00:00:30] Speaker 04:
The Harada and Zong references both require modification, which is improper on anticipation.

[00:00:37] Speaker 06:
So how do we start with Mudmaster?

[00:00:39] Speaker 06:
And I understand that there were at least evidence of sales both in 1980 and 1993.

[00:00:44] Speaker 06:
Is that accurate?

[00:00:45] Speaker 06:
That's correct.

[00:00:46] Speaker 06:
So if we were to focus on the 1993 sale, what do you think would prevent an on-sale bar in this instance?

[00:00:56] Speaker 04:
Two things at least, Your Honor.

[00:00:58] Speaker 04:
First of all,

[00:00:59] Speaker 04:
The 1993 sale was not presented as an on-sale bar at the lower court.

[00:01:06] Speaker 04:
So argument about that up here is improper.

[00:01:10] Speaker 01:
But secondly... Well, that's not quite true.

[00:01:12] Speaker 01:
It was presented in the motion for reconsideration, correct?

[00:01:18] Speaker 04:
It was mentioned, I think, in an offhanded way, but it wasn't presented as a separate argument.

[00:01:23] Speaker 01:
Well, let's assume that it was presented as a separate argument in the motion for reconsideration.

[00:01:30] Speaker 01:
You responded to that with a PowerPoint presentation.

[00:01:35] Speaker 01:
I didn't see anything in the PowerPoint presentation which

[00:01:39] Speaker 01:
objected to the 1993 sale as having been an on sale bar for whatever features were in the 1993 machine.

[00:01:54] Speaker 01:
Am I wrong about that?

[00:01:56] Speaker 04:
You're not wrong.

[00:01:57] Speaker 04:
We didn't object to that.

[00:01:59] Speaker 04:
However, we did set forth evidence and it is hotly disputed as to whether that 1993 machine has a chassis.

[00:02:07] Speaker 04:
And the judge recognized that in his decision.

[00:02:10] Speaker 04:
And Week's attorney admitted that you can't see the chassis in the 1980 machine, but the parties dispute this in the 1993 machine.

[00:02:21] Speaker 04:
However, that doesn't overcome the problem that the 1993 machine has to look at other documents as well to disclose all the features of the prior art.

[00:02:33] Speaker 01:
Well, Hudson testified.

[00:02:36] Speaker 01:
that there was a chassis, correct?

[00:02:40] Speaker 01:
That's correct.

[00:02:42] Speaker 01:
And the question is whether Bennett contradicted that, thereby raising a genuine issue of material fact?

[00:02:50] Speaker 04:
That's correct, Your Honor.

[00:02:51] Speaker 04:
Hudson testified about three different locations on the 1993 machine being a chassis.

[00:02:58] Speaker 04:
He testified about the trunnion support, about the ladder frame, about the

[00:03:05] Speaker 04:
pipes underneath the trunnion support, and I think he settled on the trunnion support.

[00:03:10] Speaker 04:
Mr. Bennett said that there was no chassis on the 1993 or the 1980 machine, and that's in his expert report and in his deposition where he explained that there's no reference to the trunnion support supporting the frame or being the frame of the machine.

[00:03:33] Speaker 01:
But he also testified that there has to be a chassis, right?

[00:03:37] Speaker 04:
No, Your Honor.

[00:03:37] Speaker 04:
He testified that something has to support what's above it.

[00:03:41] Speaker 04:
But he didn't testify that that support has to be a chassis.

[00:03:45] Speaker 04:
And when you look at the claim limitations, the claim limitations require more.

[00:03:49] Speaker 01:
I'm confused.

[00:03:52] Speaker 01:
What's the difference between a support and a chassis?

[00:03:55] Speaker 04:
Well, the court construed chassis as the supporting frame of a vehicle exclusive of the body or housing.

[00:04:03] Speaker 06:
The claims require that the chassis... Didn't the testimony indicate that there would be a supporting frame?

[00:04:21] Speaker 06:
So I recognize the testimony may not be as clean on use of the precise word chassis, but didn't the testimony indicate that that claim construction of chassis would have been met?

[00:04:34] Speaker 04:
Maybe Mr. Hudson's testimony indicated that, but Mr. Bennett's testimony did not.

[00:04:39] Speaker 04:
Keep in mind, the 1993 machine has no picture of what it's describing as trunnion supports.

[00:04:46] Speaker 04:
And you have to go to different undated documents to get these pictures.

[00:04:50] Speaker 04:
And there's no testimony that these other documents reflect the same machine.

[00:04:55] Speaker 04:
And these pictures, Mr. Bennett testified he couldn't understand what was allegedly the supporting structure from these

[00:05:04] Speaker 04:
undated pictures.

[00:05:10] Speaker 01:
What was it that Hudson relied on?

[00:05:11] Speaker 01:
The pictures?

[00:05:13] Speaker 04:
Hudson relied on several different things at several different times but in the end he relied on the 1993 document that describes a trunnion support and then he relied on I believe he relied on an undated picture from another document and we can't prove that those are the same machines

[00:05:34] Speaker 04:
And Bennett would argue that that picture doesn't show a chassis.

[00:05:39] Speaker 04:
It has something circled in red, but we can't tell what it is.

[00:05:42] Speaker 01:
Well, there are two issues here.

[00:05:44] Speaker 01:
One, is Hudson's testimony sufficient to support a finding that there was a chassis by a jury?

[00:05:51] Speaker 01:
And the second question is whether, if there was such testimony, it was contradicted by Bennett.

[00:05:57] Speaker 01:
On the first point, are you disputing whether Hudson's testimony was sufficient to establish the existence of a chassis?

[00:06:07] Speaker 04:
When you look at what he relied on, yes, because he relied on multiple documents, and there's no proof that these documents have the same model number.

[00:06:15] Speaker 04:
In fact, they have different model numbers.

[00:06:18] Speaker 01:
So for example... I don't recall you arguing that in the blue brief, did you?

[00:06:23] Speaker 01:
The model numbers?

[00:06:24] Speaker 01:
No, the inadequacy of the Hudson testimony.

[00:06:29] Speaker 04:
I think it goes without saying that we didn't concede the Hudson testimony.

[00:06:33] Speaker 01:
It never goes without saying.

[00:06:34] Speaker 01:
Where in the blue brief did you make that argument that the Hudson testimony was insufficient to allow a jury to find Chassie?

[00:06:46] Speaker 04:
We didn't make that argument specifically.

[00:06:48] Speaker 01:
OK, well, that's a problem.

[00:06:50] Speaker 04:
But you asked me, so I answered you.

[00:06:52] Speaker 04:
But we made the argument that there's a genuine issue of material fact.

[00:06:56] Speaker 04:
Because he was contradicted by Bennett.

[00:06:58] Speaker 04:
Correct, Your Honor.

[00:07:01] Speaker 04:
Correct, Your Honor.

[00:07:02] Speaker 04:
And since you guys took me directly into Mudmaster, is it worthwhile for me to talk about the exclusion of Bennett's testimony, or should we talk about the remaining on the prior art?

[00:07:14] Speaker 04:
It's up to you.

[00:07:16] Speaker 04:
All right.

[00:07:21] Speaker 04:
I think it's important to know that Mr. Bennett's testimony, contrary to the district court's decision, was not contradictory.

[00:07:29] Speaker 04:
In fact, the district court improperly equated Mr. Bennett's identification of the problem in the prior art with a proposed solution, and neither expert has testified as to how to solve these problems in the prior art.

[00:07:43] Speaker 04:
Neither one.

[00:07:44] Speaker 04:
There's no testimony on that.

[00:07:46] Speaker 04:
Bennett's identification of these prior problems is consistent with his expert report.

[00:07:51] Speaker 04:
I can walk through these in the decision, but at, for example, appendix 16,

[00:07:57] Speaker 04:
Bennett testified that Zong can't travel on land because Zong's suction pipe drags the ground.

[00:08:03] Speaker 04:
That's the same thing as he testified in his report.

[00:08:08] Speaker 04:
Same is true with Harada.

[00:08:10] Speaker 04:
He testified about the problems with having the spuds drag the ground.

[00:08:16] Speaker 06:
Do you agree that if we were to affirm with respect to Mudmaster, for example,

[00:08:24] Speaker 06:
we don't have to reach the grounds related to Zong or Harada?

[00:08:29] Speaker 04:
That's correct, Your Honor.

[00:08:31] Speaker 04:
You would have to find that none of the prior art anticipated.

[00:08:35] Speaker 04:
And as I mentioned, Zong and Harada require modification.

[00:08:39] Speaker 04:
So that in and of themselves kicks that out.

[00:08:41] Speaker 04:
We can discuss further.

[00:08:42] Speaker 04:
But Mudmaster requires improper combination, regardless of whether you look at the 1980 document or you look at the 1993 document.

[00:08:52] Speaker 04:
which would require combination back into these undated documents and the 1980 document as well.

[00:09:23] Speaker 04:
that it was around in 1980 that could testify as to what's on the 1980 machine that was sold.

[00:09:31] Speaker 04:
He started in 1987, and he testified that there were different model numbers on the 1980 machine and the 1993 machine, and that's at Appendix 1818.

[00:09:41] Speaker 04:
He also testified that the assembly instructions for the 1980 machine, if there were any which were not found,

[00:09:51] Speaker 04:
quote, probably would have been different from those in the 1993 machine.

[00:09:56] Speaker 04:
And that's at appendix 1817.

[00:09:57] Speaker 06:
My understanding, though, of that testimony was he was saying they would be different because they were 1993 instructions, but there were follow-up questions indicating whether or not the substance of the instructions would be different.

[00:10:09] Speaker 06:
And my understanding was he didn't think that they would be different, they'd be similar or something like that.

[00:10:13] Speaker 04:
But he has no personal knowledge to know whether they would be similar.

[00:10:17] Speaker 04:
He's making a guess.

[00:10:20] Speaker 04:
because they don't exist or they were not disclosed.

[00:10:24] Speaker 04:
In addition, regardless, the court flipped the burden of proof in allowing the use of the 1993 document.

[00:10:37] Speaker 04:
For example, the court said that Wilco didn't do enough to convince the court of the issue of fact with respect to the 1993 document.

[00:10:46] Speaker 04:
And that's in Appendix 11.

[00:10:49] Speaker 04:
But that's not Wilco's burden, Your Honor.

[00:10:51] Speaker 04:
The court failed to consider Wilco's evidence, and that's specifically Bennett's testimony that the Mudmaster 1993 had no chassis at appendix 2484 to 90.

[00:11:02] Speaker 04:
So even if combined, Mudmaster does not anticipate.

[00:11:09] Speaker 04:
I'll turn for the remainder of my time to the substitution of experts on remand.

[00:11:17] Speaker 01:
Yeah.

[00:11:17] Speaker 01:
I'm a little puzzled about that.

[00:11:20] Speaker 01:
That's an issue which would arise only at trial.

[00:11:23] Speaker 01:
It really doesn't have anything to do with the summary judgment motion.

[00:11:27] Speaker 01:
Am I correct about that?

[00:11:28] Speaker 04:
That's correct.

[00:11:29] Speaker 04:
But the problem is that the court said that it would exclude a substitute expert on remand.

[00:11:37] Speaker 01:
I understand that.

[00:11:38] Speaker 01:
So it only comes up if you win on the summary judgment issue.

[00:11:40] Speaker 04:
Yes, Your Honor.

[00:11:42] Speaker 04:
And Mr. Kitty,

[00:11:45] Speaker 04:
Or I'm sorry, all of the squire factors here would be met.

[00:11:49] Speaker 04:
Mr. Bennett has suffered a near fatal heart attack.

[00:11:53] Speaker 04:
He's now retired completely.

[00:11:55] Speaker 02:
Is there any evidence in the record that he's currently unable to serve as an expert?

[00:11:59] Speaker 04:
Yes, Your Honor, there is.

[00:12:00] Speaker 03:
There's a letter from him saying he doesn't want to anymore.

[00:12:08] Speaker 04:
There's also a doctor's note dated February 6 of 2023 saying he's in rehabilitation.

[00:12:15] Speaker 04:
and recovery would last about three months.

[00:12:17] Speaker 04:
And then there is his letter of March 9 saying that he has retired completely.

[00:12:23] Speaker 04:
If that is an issue, if that is an issue that the court needs to explore, certainly the court could request more evidence of Mr. Bennett's condition.

[00:12:32] Speaker 04:
My understanding is that he is not doing well.

[00:12:43] Speaker 03:
I mean, one view of what the district court was doing here is that they thought maybe your side didn't do so well in the deposition.

[00:12:53] Speaker 03:
So you were trying to get him out of the case.

[00:12:54] Speaker 03:
Isn't that within the district court's discretion to say, I think that's what's really going on here, and we're not going to allow that?

[00:13:00] Speaker 04:
It is in general, Your Honor.

[00:13:01] Speaker 04:
And because of the doctor's note and because now circumstances have become even worse, to allow this case to go forward without

[00:13:13] Speaker 04:
an expert, and certainly my client would love to have Mr. Bennett come and testify.

[00:13:17] Speaker 04:
It would resolve a lot of things.

[00:13:19] Speaker 04:
But to even Weeks admits that experts are some of the most important witnesses at trial, and credibility is key for a jury.

[00:13:29] Speaker 04:
So to allow this case to go forward only on cross-examination through deposition of Mr. Bennett would be highly prejudicial.

[00:13:38] Speaker 04:
I see I'm into my rebuttal time.

[00:13:41] Speaker 01:
OK.

[00:13:41] Speaker 01:
We'll give you two minutes for rebuttal.

[00:13:43] Speaker 04:
Thank you, your honor.

[00:13:44] Speaker 01:
Mr. Leachman.

[00:13:52] Speaker 00:
Good morning.

[00:13:53] Speaker 00:
May it please the court.

[00:13:54] Speaker 00:
My name's Michael Leachman.

[00:13:56] Speaker 00:
I'm counsel for the Pellee Weeks Marine.

[00:14:00] Speaker 00:
I'd like to start with Mudmaster, since I understand many of your questions concern Mudmaster.

[00:14:05] Speaker 00:
And if I may, I'd like to start with the issue of the alleged waiver of the argument pertaining to the 1993 sale.

[00:14:14] Speaker 00:
Importantly, in the statement of uncontested facts in the original motion, the 1993 sale was raised and, fatally, Wilco identified it as an undisputed fact.

[00:14:26] Speaker 01:
What did you say about it in the motion for reconsideration?

[00:14:30] Speaker 00:
It was specifically addressed that the seismic decision was irrelevant to the 1993 sale, thus

[00:14:37] Speaker 00:
The parties were wasting a lot of ink dealing with this issue of, does the 1993 instructions apply to the 1980 sale?

[00:14:44] Speaker 01:
Our position, even as early as the reply... My question is, did you raise this issue in the motion for reconsideration about the 1993 sale?

[00:14:54] Speaker 00:
Yes, Your Honor.

[00:14:55] Speaker 01:
Okay.

[00:14:55] Speaker 00:
Where did you do that?

[00:14:57] Speaker 00:
That would have been in docket 162-1.

[00:15:01] Speaker 00:
The appendix citation is 2844-45.

[00:15:07] Speaker 00:
There is a chart, if I may, to explain how Weeks Marine approached the Mudmaster machine.

[00:15:16] Speaker 00:
Our position has always been that the Mudmaster machine is a priority device, and the model number AHP-250SM is the product.

[00:15:28] Speaker 00:
Our position has been there were at least three 102 triggering events, a 1980 sale, a 1981 showing at a

[00:15:37] Speaker 00:
trade show, and then a 1993 sale.

[00:15:41] Speaker 00:
So from the outset of this case, we have alleged the machine is the prior art device, and there are three triggering 102 events.

[00:15:50] Speaker 00:
It's only Wilco that has decided to focus on the 1980 sale.

[00:15:53] Speaker 01:
So at the top of 2345, you have a section about 1993 offer for sale.

[00:15:58] Speaker 01:
That's where you raised that.

[00:16:00] Speaker 00:
Yes, Your Honor.

[00:16:03] Speaker 00:
And we also raised it in our statement of uncontested facts.

[00:16:06] Speaker 00:
And then in our reply brief in the original motion for summary judgment, we argued, first, Wilco does not dispute the existence of the 1993 sale or that the 1993 assembly instructions were provided to PSI Engineering.

[00:16:19] Speaker 00:
Thus, even under Wilco's reading of seismics, the 1993 assembly instructions are relevant for establishing the features of the Mudmaster unit sold in 1993.

[00:16:28] Speaker 00:
I don't know how much clear.

[00:16:30] Speaker 06:
So recognizing that, I feel like some of the core of the argument opposing counsel makes

[00:16:36] Speaker 06:
is that you're kind of mixing and matching time period documents with respect to this mud master and their different models.

[00:16:43] Speaker 06:
If you were to tell me your best 102, I understand you identified three potentially triggering events.

[00:16:49] Speaker 06:
Which is the best one of those dates in terms of being the most complete in terms of presenting either on sale bar?

[00:16:59] Speaker 00:
The 1993 sale.

[00:17:01] Speaker 00:
Bar, two main reasons.

[00:17:02] Speaker 00:
Number one, we have the 1993 assembly instructions.

[00:17:06] Speaker 00:
that were admitted as a business record, that were verified by Mr. Binkley as being on a business record.

[00:17:11] Speaker 00:
And then probably even more importantly, we have Binkley's testimony itself.

[00:17:17] Speaker 00:
Mr. Binkley testified that he... He was there during the 1993... Correct.

[00:17:22] Speaker 00:
He testified, he was asked in his deposition, do you have any personal knowledge that that machine was delivered to PSI Engineering?

[00:17:29] Speaker 00:
This is the 1993 machine.

[00:17:31] Speaker 00:
Yes.

[00:17:32] Speaker 00:
Then he was asked, did you see that mud master?

[00:17:36] Speaker 00:
Answer, I did.

[00:17:37] Speaker 00:
This is appendix 1825.

[00:17:41] Speaker 00:
So he testified that he actually saw this machine.

[00:17:43] Speaker 00:
Then he went on further and testified how the machine is put together.

[00:17:47] Speaker 00:
He testified about these crossmembers.

[00:17:49] Speaker 00:
He testified about what the trend and support frame is and what it does.

[00:17:53] Speaker 00:
And so we not only are relying upon assembly instructions to explain

[00:17:58] Speaker 00:
what constitutes the chassis of this machine.

[00:18:00] Speaker 00:
We're also relying upon a eyewitness that testified on behalf of the company that sold this device.

[00:18:07] Speaker 00:
And so to answer your question, yes, the 1993 sale to me makes this case a lot easier.

[00:18:12] Speaker 00:
You do not have to get to the issues that appellants spent a lot of ink on talking about the application of the 93 instructions to a 1980 machine.

[00:18:25] Speaker 06:
Are you relying on any undated documents for the 1993 sale?

[00:18:30] Speaker 00:
We have no undated documents to rely upon for the 1993 sale.

[00:18:33] Speaker 06:
So which sale?

[00:18:34] Speaker 06:
Is it the 1981 where there are potentially undated documents, or how do the undated documents fit into the picture?

[00:18:39] Speaker 00:
So the arguments being raised by Wilco is that, so if I may, let me back up.

[00:18:47] Speaker 00:
There were six

[00:18:48] Speaker 00:
Mudmaster machines of this particular model that were made.

[00:18:52] Speaker 00:
All six of them were made in the early 1980s.

[00:18:54] Speaker 00:
This was something Mr. Binkley testified to based upon the business records.

[00:18:58] Speaker 00:
You just happen to have one sold in 1980, another one shown at a trade show, and then another one sold in 1993.

[00:19:06] Speaker 00:
But these aren't separate machines.

[00:19:08] Speaker 00:
These are all the same model.

[00:19:11] Speaker 00:
They just happened to be sold over different time periods.

[00:19:13] Speaker 00:
And that's what Mr. Binkley's testimony, when talking about the assembly instructions, was going to.

[00:19:18] Speaker 00:
Yes, the 93 assembly instructions were typed and made in 1993.

[00:19:23] Speaker 00:
But substantively, they would be substantially similar to what would have been with the 1980 machine.

[00:19:29] Speaker 00:
And Judge Barbier found that to be sufficiently.

[00:19:32] Speaker 06:
He also claims, though, he wouldn't have personal knowledge of that aspect.

[00:19:36] Speaker 00:
Given the fact that he didn't join the company until what 1987 1987 um We believe as a corporate representative based upon his role as a vice president and having access and knowledge of the business records he can testify to the reliability of that document being applicable to the 1980 sale But again, I still do not believe that is an issue this court even has to reach I

[00:20:06] Speaker 01:
So why don't you address the chassis issue?

[00:20:09] Speaker 01:
So I think for the moment, we could assume that Hudson testified there was a chassis.

[00:20:15] Speaker 01:
The question is, was that contradicted by Bennett, such as to raise a genuine issue of material fact?

[00:20:22] Speaker 00:
Yes, Your Honor.

[00:20:24] Speaker 00:
In Mr. Bennett's original expert report,

[00:20:30] Speaker 00:
He did say the words, I don't think it has a chassis.

[00:20:33] Speaker 00:
But he never explained what it had.

[00:20:35] Speaker 00:
He never explained anything.

[00:20:37] Speaker 00:
It was a very conclusory opinion in his initial expert report.

[00:20:43] Speaker 00:
During Paulson's examination, during his deposition, though, that conclusory opinion really started showing its light.

[00:20:51] Speaker 00:
He was asked what possibly could support the machine if it didn't have a chassis.

[00:21:00] Speaker 00:
His answer was, based on my opinion, my expert opinion, as the good doctor said, there must be something there to support the pontoons.

[00:21:08] Speaker 06:
Remind me what page you're reading from.

[00:21:10] Speaker 00:
This is Appendix 2753.

[00:21:15] Speaker 00:
And then he was asked in his deposition, hypothetically, well, what could be used to support these two pontoons?

[00:21:24] Speaker 00:
He gave an example of a deck, and he gave example of crossbeams.

[00:21:28] Speaker 00:
In both instances, he said both of those would qualify as a chassis.

[00:21:33] Speaker 00:
Then we also have him testifying on looking at infringement that the accused devices with crossmembers constitute a chassis.

[00:21:43] Speaker 00:
So when pressed about that contradiction,

[00:21:45] Speaker 00:
He ultimately answered, I don't know.

[00:21:48] Speaker 00:
He referred to the trunnion support frame as being magical.

[00:21:53] Speaker 00:
He ultimately gave what I consider to be a non-opinion.

[00:21:57] Speaker 00:
And so we're not even dealing with conflicting opinions.

[00:22:00] Speaker 00:
We're dealing with a non-opinion at the end of the day.

[00:22:02] Speaker 00:
And we have both Dr. Hudson and Mr. Binkley explaining exactly what these cross members do.

[00:22:10] Speaker 00:
So this court has found, and other appellate courts have found,

[00:22:14] Speaker 00:
You have competing experts and an expert on one side merely gives a conclusory opinion.

[00:22:20] Speaker 00:
That's not sufficient to defeat summary judgment.

[00:22:23] Speaker 00:
Here, we're not only giving a conclusory opinion.

[00:22:25] Speaker 00:
We're giving an opinion that conflicts with itself.

[00:22:34] Speaker 06:
What page can I find the magical testimony?

[00:22:36] Speaker 00:
Appendix 2748 through 2749.

[00:22:42] Speaker 00:
And I also have 2752.

[00:22:52] Speaker 00:
And I will also note that that testimony was given after Mr. Binkley had been deposed or Mr. Binkley had explained in detail what the Trending Support Frame actually does.

[00:23:15] Speaker 01:
Did you rely on Binkley's testimony to establish a chassis as well as Hudson's?

[00:23:21] Speaker 00:
It was cited in our briefs, but we relied principally on Dr. Hudson as the testifying expert on anticipation validity.

[00:23:31] Speaker 00:
But Mr. Binkley's deposition was cited throughout our briefs, as well as our pillar briefs.

[00:23:39] Speaker 00:
If I may, move to the Zong reference.

[00:23:44] Speaker 00:
Go ahead.

[00:23:45] Speaker 00:
Zong also, in my view, is a rather straightforward reference for this court to consider, mainly because there's no dispute that Zong possesses all the claim elements.

[00:23:57] Speaker 00:
There's no dispute that Zong has a chassis.

[00:23:59] Speaker 00:
There's no dispute that Zong has spuds.

[00:24:02] Speaker 00:
There's no dispute that Zong has a track system.

[00:24:05] Speaker 00:
The only argument raised by the appellant is lack of enablement.

[00:24:10] Speaker 00:
And the burden of proof on lack of enablement

[00:24:14] Speaker 00:
when you're dealing with 102 reference is on the party that's raising it.

[00:24:19] Speaker 01:
Well, there's a question as to whether Zong's track enables it to move on water.

[00:24:25] Speaker 01:
I guess there seems to be a consensus that maybe it helps to do that, but it's not sufficient.

[00:24:33] Speaker 00:
So yes, Your Honor.

[00:24:35] Speaker 00:
That argument that the track system is not enabled to move on water is really not an enablement argument at all.

[00:24:41] Speaker 00:
It's a utility argument.

[00:24:43] Speaker 00:
And this court has long held that 102 does not require, under the guise of enablement, efficacy or performance levels.

[00:24:52] Speaker 00:
And so Zong explicitly states that the paddles do function to move the device on water.

[00:24:59] Speaker 00:
It just states that it moves slow and that it has.

[00:25:02] Speaker 01:
Well, I mean, is it really that explicit?

[00:25:07] Speaker 01:
Where does the Zong say that?

[00:25:11] Speaker 00:
Yes, Your Honor.

[00:25:13] Speaker 00:
Appendix 4199 is the page citation.

[00:25:17] Speaker 00:
If I may, I can read you an excerpt.

[00:25:21] Speaker 00:
The excerpt is, the amphibious pontoon track type traveling mechanism moves forward in water by strokes of track paddles.

[00:25:30] Speaker 00:
And so the reference is teaching that it's

[00:25:33] Speaker 00:
its track system does move it forward, it just moves it forward slowly.

[00:25:37] Speaker 00:
And I will note that even one of the accused devices, the Remu machine, which is one of the devices that's been accused of infringement, has an auxiliary propeller that functions in the same way to assist this machine to move more quickly or move in water when you have headwinds or things of that nature.

[00:25:55] Speaker 05:
I don't feel like I have the page.

[00:25:57] Speaker 05:
You said 4199?

[00:25:59] Speaker 01:
Yes.

[00:26:01] Speaker 01:
Our appendices don't have that

[00:26:03] Speaker 01:
must be a typo.

[00:26:05] Speaker 06:
$1500, I'm sorry.

[00:26:09] Speaker 00:
My apologies.

[00:26:11] Speaker 00:
It must be a typo in my notes.

[00:26:15] Speaker 00:
But I still submit that the argument regarding Zolong's track system is really a utility issue that does not in any way overcome a 102 application of the reference to the patent.

[00:26:33] Speaker 00:
And with regard to the suction pipe, so the Zong reference is also a dredging machine that uses a water suction pipe in addition to its bucket to dredge.

[00:26:46] Speaker 00:
So this water suction pipe can be placed in the water and you can mix water with mud and more easily get the dredged material to the shore.

[00:27:00] Speaker 00:
Wilco's taken the position looking myopically at one figure that the Zong reference is not enabled, that it couldn't move on land because of this pipe sticking below it.

[00:27:13] Speaker 00:
Our position has been and still is that a person skilled in community art is the viewpoint or the anticipation analysis, and a person skilled in the art would not look at Zong

[00:27:26] Speaker 00:
and create a machine with a pipe sticking below it.

[00:27:30] Speaker 00:
And this was something that Mr. Bennett, in his deposition, ultimately agreed with.

[00:27:34] Speaker 00:
He admitted that a skilled artisan would know better than to do that and would know how to build the machine without the pipe sticking below it.

[00:27:44] Speaker 00:
Certainly doesn't rise to the level of undue experimentation.

[00:27:46] Speaker 00:
Their own witness testified that a skilled artisan would know how to make the machine where it didn't have the pipe dragging below the ground.

[00:27:54] Speaker 00:
And again, this is the burden of proof that the patentee had to show that it was not enabled.

[00:28:02] Speaker 00:
And they had to show that there was undue experimentation to make and use the prior reference.

[00:28:07] Speaker 06:
What about the role of the sham affidavit doctrine in terms of the district court's analysis?

[00:28:14] Speaker 06:
Can you respond to that?

[00:28:15] Speaker 00:
Yes, so the sham affidavit doctrine applies in situations where you have a declaration or affidavit and sworn testimony that completely contradicts.

[00:28:25] Speaker 00:
Both the Fifth Circuit as well as other circuit courts in this circuit court have recognized that when there's a complete contradiction, a party can't create a issue of fact by having a affidavit that has testimony that completely contradicts other testimony.

[00:28:42] Speaker 03:
Isn't the sham affidavit doctrine where

[00:28:43] Speaker 03:
you have record evidence, and then to avoid summary judgment, somebody submits an affidavit after, and the court says, well, that's just a sham to try to avoid summary judgment.

[00:28:54] Speaker 03:
Didn't this happen in the opposite order?

[00:28:56] Speaker 00:
It did.

[00:28:56] Speaker 03:
Was there any case that's ever applied the sham affidavit doctrine?

[00:29:01] Speaker 00:
We were not able to locate one, but the principles behind the sham affidavit doctrine seem to be even more applicable in this circumstance.

[00:29:09] Speaker 00:
The sham affidavit doctrine is built on

[00:29:11] Speaker 00:
sworn cross-examination deposition testimony being more reliable than an attorney curated affidavit.

[00:29:19] Speaker 00:
And in this situation, we had the declaration in the form of expert report than the deposition testimony.

[00:29:25] Speaker 00:
And so in our view, this case is even more prime for having the sham affidavit doctrine applied.

[00:29:36] Speaker 01:
In Bennett's declaration, does he explain

[00:29:41] Speaker 01:
Anything relating to the deposition testimony?

[00:29:51] Speaker 00:
His declaration took place before the deposition.

[00:29:53] Speaker 01:
So there was no declaration after that?

[00:29:54] Speaker 00:
No declaration after, Your Honor.

[00:29:57] Speaker 00:
And so if the court were concerned about the sham affidavit doctrine being applicable here, I would also point to the fact that the opinions in the declaration are conclusory in nature.

[00:30:08] Speaker 00:
And even on that ground, the court could find no genuine issue of material fact due to conclusory opinions that have no explanation.

[00:30:14] Speaker 00:
For instance, the mud master not having a chassis.

[00:30:17] Speaker 00:
There's no explanation anywhere what exactly it has.

[00:30:21] Speaker 00:
It's just a conclusory answer, just like any attorney could say, no.

[00:30:26] Speaker 06:
So you're contending that you could win with respect to these two other references.

[00:30:31] Speaker 06:
without the sham affidavit doctrine applying?

[00:30:33] Speaker 00:
I believe so, yes, Your Honor.

[00:30:35] Speaker 00:
I do not believe that the patentee met their burden to show non-enablement.

[00:30:40] Speaker 00:
And the only opinions in the declaration were conclusory.

[00:30:45] Speaker 01:
OK.

[00:30:46] Speaker 01:
Unless there are further questions, I think we're out of time.

[00:30:48] Speaker 01:
Thank you.

[00:30:49] Speaker 01:
Thank you.

[00:30:50] Speaker 01:
Ms.

[00:30:50] Speaker 01:
Addie, you have two minutes.

[00:30:54] Speaker 04:
Thank you, Your Honor.

[00:30:57] Speaker 04:
First, the court

[00:31:00] Speaker 04:
never mentions the 1993 sale in its decision.

[00:31:04] Speaker 04:
We're here on summary judgment.

[00:31:06] Speaker 04:
And I want to revisit for a minute Hudson's testimony.

[00:31:09] Speaker 01:
Well, the fact that the district court didn't address the 1993 sale doesn't make that much difference.

[00:31:18] Speaker 01:
It's not making findings a fact.

[00:31:21] Speaker 01:
We have the summary judgment record.

[00:31:23] Speaker 01:
We can affirm on a ground supported by the record, even though it wasn't addressed by the district court.

[00:31:29] Speaker 04:
Well, I believe the judge didn't think it was raised either.

[00:31:32] Speaker 04:
But regardless, if you look to- Where does the judge suggest it wasn't raised?

[00:31:38] Speaker 04:
He doesn't.

[00:31:38] Speaker 04:
He doesn't mention it.

[00:31:40] Speaker 04:
Your Honor, if you look to Appendix 2845, which is their brief, where they say they argued the 1993 sale, they rely not just on the 1993 document.

[00:31:54] Speaker 04:
They rely also on a Mudmaster brochure that was three Mudmaster brochures and files that were undated that nobody could tell when they came from.

[00:32:05] Speaker 04:
And they rely on a 1983 document that's 13 years before and a 1996 document that is three years after the sale.

[00:32:15] Speaker 04:
There is no testimony connecting these documents.

[00:32:17] Speaker 04:
There is testimony that some of the documents are different models.

[00:32:24] Speaker 04:
Turning back to Hudson's testimony, you asked me if it was sufficient to create a chassis.

[00:32:29] Speaker 04:
It's sufficient to create a genuine issue of fact.

[00:32:32] Speaker 04:
But we did argue that it was not sufficient to prove a chassis, just to create it.

[00:32:37] Speaker 04:
And that's in our brief at 43 through 46.

[00:32:43] Speaker 04:
One more thing, Your Honor.

[00:32:44] Speaker 04:
In claim one, for example, the chassis is specifically required to have two pontoons that are supported by the chassis.

[00:32:54] Speaker 04:
There is absolutely no testimony from Mr. Hudson that anything that he considers to be a chassis supports these pontoons.

[00:33:05] Speaker 04:
In fact, the pipes that are connected to the pontoons, there's no evidence that they are supporting the pontoons themselves.

[00:33:13] Speaker 04:
Genuine issues of fact, Rain.

[00:33:17] Speaker 04:
Thank you, Your Honor.

[00:33:17] Speaker 04:
The case should be remanded.

[00:33:19] Speaker 01:
Thank both counsels.

[00:33:20] Speaker 01:
The case is submitted.