[00:00:00] Speaker 00:
Next case for argument is 24-2056, leading technology composites versus MV2.

[00:00:09] Speaker 00:
Mr. Camacho, we're ready whenever you are.

[00:00:13] Speaker 04:
Do you have me down for five minutes for a little?

[00:00:16] Speaker 04:
May it please the court.

[00:00:19] Speaker 04:
Your Honors, there are many disputes about what happened before July 2020.

[00:00:24] Speaker 04:
But after July 2020, there are not many disputes.

[00:00:28] Speaker 04:
Before July 2020, there were competing positions.

[00:00:32] Speaker 04:
But in July of 2020 is when we first made our first motion for summary judgment.

[00:00:38] Speaker 04:
We made our first motion for summary judgment.

[00:00:39] Speaker 04:
And in that motion, we made abundantly clear that we did not think at least the four resisting clause of the preamble was limiting.

[00:00:47] Speaker 04:
We also didn't think it should be added to the first durable sheet limitation.

[00:00:51] Speaker 04:
That's the same position we took before the re-exam.

[00:00:55] Speaker 04:
to help put this case in context, classic litigation, MV squared requested re-exam.

[00:01:01] Speaker 04:
When MV squared requested re-exam.

[00:01:04] Speaker 00:
Just so I'll be clear, is your argument now just going to whether the preamble is limiting and the district court's observations that you had stipulated or conceded to that fact before?

[00:01:18] Speaker 00:
Is that what you're talking about here?

[00:01:20] Speaker 04:
Yes, I'm sorry.

[00:01:22] Speaker 04:
I'm talking about the preamble term, the four resisting clause.

[00:01:25] Speaker 04:
So sorry.

[00:01:26] Speaker 04:
And any comments I get today about the four resisting clause of the preamble are equally applicable to what has become a four resisting clause in the first durable sheet limitation, which doesn't include a four resisting clause, or at least it didn't, but now it did.

[00:01:42] Speaker 04:
We originally, we as the plaintiffs, were not eager for a re-examination or a stay.

[00:01:49] Speaker 04:
We resisted a stay.

[00:01:50] Speaker 04:
But one of the reasons that MV squared proposed to stay the litigation, a significant request, was that the intrinsic record would be more developed, and the court would get the benefit of the Patent Office technical school skills.

[00:02:04] Speaker 04:
And that's what happened.

[00:02:06] Speaker 04:
The intrinsic record was developed much more fully, over 2,000 pages.

[00:02:11] Speaker 04:
And during that record, we did not rely on the fore-resisting portion of the preamble as a claim limitation.

[00:02:19] Speaker 04:
Yes, the Armour panel concede that all day long.

[00:02:22] Speaker 04:
But we did.

[00:02:23] Speaker 02:
Counsel, I just want to get a handle on what evidence, if any, was pit before the court below in terms of the fore-resisting limitation.

[00:02:34] Speaker 02:
I understand that you're arguing to us

[00:02:36] Speaker 02:
that limitation should not be limiting in the preamble and the like.

[00:02:41] Speaker 02:
But was there some evidence, and if so, what was pit forth below with respect to the four resisting limitation?

[00:02:48] Speaker 04:
Yes.

[00:02:49] Speaker 04:
We argued as a backup that if the four resisting clause was construed as a limitation, it would be given its plain and ordinary meaning as allowed by the spec.

[00:02:59] Speaker 04:
And then I think Your Honor's question was, what was the evidence?

[00:03:01] Speaker 04:
I think we listed nine things.

[00:03:03] Speaker 03:
We listed, we included a deposition testimony of one of their... Before you get too far in the list, did you list those things in opposing their motion for summary judgment of non-infringement?

[00:03:18] Speaker 03:
And if so, where can we see that list as you presented it to the district court?

[00:03:23] Speaker 04:
I believe we did.

[00:03:27] Speaker 04:
I pause a little bit, Your Honor, because I wonder if we might have preemptively even addressed that as a contingency in our opening brief before the district court.

[00:03:35] Speaker 03:
You mean because you moved for summary judgment of infringement.

[00:03:39] Speaker 03:
Yes.

[00:03:39] Speaker 03:
And they moved for summary judgment of non-infringement.

[00:03:41] Speaker 03:
Right.

[00:03:42] Speaker 03:
The question I guess I have is how would the district court

[00:03:47] Speaker 03:
have been on notice that the evidence you're about to list for us was part of what she had to consider in evaluating their motion for summary judgment of non-infringement.

[00:03:56] Speaker 03:
Just if you could tell us where in the record we would see that.

[00:04:01] Speaker 04:
OK, so you're saying when they cross-moved, I would have needed to oppose that?

[00:04:08] Speaker 03:
I might be saying that, but I first just want to know, did you let the district court know this is our evidence as to why you should, at minimum, not grant summary judgment, not infringement?

[00:04:21] Speaker 04:
I don't want to give you a wrong answer.

[00:04:23] Speaker 04:
I'm pretty sure we did.

[00:04:24] Speaker 04:
But I think there's a possibility that we might have referenced back to our opening brief.

[00:04:30] Speaker 04:
Because we were moving for summary judgment of non-infringement, I mean of infringement.

[00:04:35] Speaker 04:
And that's what we might have done.

[00:04:36] Speaker 03:
So you're not sure.

[00:04:37] Speaker 03:
You can't point us to anything in the record that would answer that question at this point.

[00:04:43] Speaker 04:
Well, I will pause just a second and look.

[00:05:01] Speaker 04:
I don't have that at my fingertips, Your Honor.

[00:05:04] Speaker 04:
I will look at it for my rebuttal.

[00:05:06] Speaker 04:
I'm sorry for interrupting.

[00:05:07] Speaker 04:
That's OK.

[00:05:07] Speaker 00:
Can I just ask you a side question?

[00:05:09] Speaker 00:
Sure.

[00:05:09] Speaker 00:
And we'll give you the extra two minutes for the side question.

[00:05:11] Speaker 00:
Thank you so much.

[00:05:12] Speaker 00:
Because it's not really dealing with the issues.

[00:05:14] Speaker 00:
I just am interested in this case.

[00:05:17] Speaker 00:
A lot of the infringement allegations that you would arguably want to collect on

[00:05:22] Speaker 00:
have were taken out of this case because of the 1498 issue.

[00:05:26] Speaker 00:
So you're going to have to go after the government for that.

[00:05:29] Speaker 00:
So based on my reading of the record, there's like really a very miniscule number of infringing devices that were sold to other than the government.

[00:05:42] Speaker 00:
Is that correct?

[00:05:44] Speaker 00:
Even if you were to prevail in all regards with respect to this particular litigation, the numbers we're talking about are minuscule because they only had a small number of sales to non-government entities.

[00:05:56] Speaker 00:
Am I right about that or wrong?

[00:05:58] Speaker 04:
No, you're very, very close.

[00:05:59] Speaker 04:
I'll just take issue just a tiny bit with the word miniscule, because there was a determination made that lower court did make a determination that there were 16 panels that were made that were private, and even the one was not de minimis.

[00:06:13] Speaker 00:
But so far in the record- We're talking under 10,000 by my calculation.

[00:06:17] Speaker 00:
Maybe I'm wrong about that.

[00:06:19] Speaker 00:
No, I think that's probably right so far.

[00:06:21] Speaker 00:
So kind of why are we here?

[00:06:22] Speaker 00:
I mean, why are we not litigating against the government for big dollars?

[00:06:26] Speaker 00:
Why are we here on this particular case?

[00:06:29] Speaker 04:
Well, the real answer to that... That's an unfair question.

[00:06:30] Speaker 04:
No, no, it's not unfair.

[00:06:31] Speaker 04:
I'll tell you.

[00:06:32] Speaker 04:
Probably the realistic answer is so far the District Court's claim construction order.

[00:06:37] Speaker 04:
We're not going to fight two fronts.

[00:06:39] Speaker 04:
So we filed a request in an administrative proceeding for an adjudication before the government, and then

[00:06:46] Speaker 04:
A couple months after the lower court's ruling, we got a letter that said, well, in light of the district court's order, we were stopping our analysis.

[00:06:55] Speaker 00:
So you just want to, and when you say because of the significance of the challenge the district court's claim construction order, are you dealing, there are kind of two pieces to that.

[00:07:05] Speaker 00:
One is whether or not the preamble is limiting, and the other is her actual construction of resisting.

[00:07:11] Speaker 00:
Is it both of those?

[00:07:12] Speaker 00:
It's both of those, yes.

[00:07:14] Speaker 04:
We would propose now.

[00:07:15] Speaker 04:
We would say, as we said below,

[00:07:17] Speaker 04:
that the four resisting clause should not be a limitation at all.

[00:07:20] Speaker 04:
And then even if it is, it should be given its broadest route.

[00:07:23] Speaker 00:
I mean, not be all right thoughts.

[00:07:24] Speaker 00:
All right.

[00:07:25] Speaker 00:
I'm not precluding my friends from going further on other issues.

[00:07:29] Speaker 00:
But let's assume hypothetically that we were to agree with the district court on one, that the preamble is limiting, and two, on her claim construction.

[00:07:38] Speaker 00:
Where are we left with in this case?

[00:07:41] Speaker 04:
If you were to agree on both of those, then I do think that we seek correction that we were not ever afforded an opportunity to respond to this claim construction.

[00:07:56] Speaker 04:
Neither party proposes construction.

[00:08:00] Speaker 04:
It's a narrow construction.

[00:08:02] Speaker 04:
It says that basically there has to be

[00:08:04] Speaker 04:
The construction is a little confusing, but I think what the court is saying is there has to be.

[00:08:11] Speaker 04:
We would get an opportunity.

[00:08:12] Speaker 04:
We should receive an opportunity.

[00:08:13] Speaker 00:
And what does that opportunity look like?

[00:08:15] Speaker 00:
I mean, discovery is closed.

[00:08:16] Speaker 00:
Are you talking about making legal arguments based on the evidence that you've already submitted to the record?

[00:08:22] Speaker 04:
Not that we submitted to the record as much.

[00:08:24] Speaker 04:
But yes, I'm not proposing that we need more discovery per se, but we have discovery.

[00:08:30] Speaker 04:
that we already have evidence that we would have marshaled before the court, and some of which we reference in our brief, if we would have been given a chance to try to show an equal resistance between the edges and the middle.

[00:08:42] Speaker 03:
Can we come back to that evidence?

[00:08:43] Speaker 03:
Because I know I distracted you from answering Judge Cunningham's question.

[00:08:47] Speaker 03:
What evidence do you have that would create a genuine dispute of material fact under the district court's claim construction, if we were to affirm that construction?

[00:08:58] Speaker 04:
Here's what we have.

[00:09:00] Speaker 04:
We have, and those are some of the nine things that we listed, we have a ballistic evidence from the CARDI report, the report by Dr. Adam CARDI.

[00:09:11] Speaker 04:
In the CARDI report, he analyzes ballistic shootings of a panel

[00:09:18] Speaker 04:
that is of the same characteristics as the MV squared panel.

[00:09:24] Speaker 02:
Is it of the actual accused product?

[00:09:27] Speaker 04:
Not the actual accused.

[00:09:28] Speaker 04:
Go ahead, Judge.

[00:09:30] Speaker 02:
You said it's the same characteristics as the MV squared panel.

[00:09:34] Speaker 02:
How do we know that?

[00:09:35] Speaker 04:
their expert Dr. Cardy analyzed it and he took into consideration the different all the things that one would take into consideration the geometric characteristics the bonding matrix he analyzed those based on evidence available to him and he made it and he observed the ballistics information between those two panels

[00:09:56] Speaker 00:
But why didn't he go a step further and do the, I mean, I don't know if he, when he talked about what he was comparing it to, he said, I think he tried the patented invention.

[00:10:08] Speaker 00:
And then he talked about what the accused product.

[00:10:12] Speaker 00:
Why didn't he do the testing on the accused product?

[00:10:16] Speaker 00:
It's just an odd kind of gap, I think, in the analysis here.

[00:10:21] Speaker 00:
He could have easily done it, could he?

[00:10:23] Speaker 00:
Was there something that precluded him from taking the accused product, examining the accused product, and saying and responding to the details of what we need to have here to prevail?

[00:10:33] Speaker 04:
Well, I would say this, Your Honor.

[00:10:35] Speaker 04:
For a very long time, we did not regard the preamble as limiting.

[00:10:40] Speaker 04:
So we did not view that as something that needed to be substantiated.

[00:10:44] Speaker 04:
Or it could be the case we were provided one panel and shooting it would destroy it.

[00:10:48] Speaker 04:
And we didn't know to what extent we might need to preserve that panel.

[00:10:51] Speaker 04:
For other purposes, but I'm not exactly sure why he did not physically shoot the actual panel except that we did not regard there to be a requirement to have to show oh The phrases for resisting edge impact penetrations.

[00:11:06] Speaker 00:
That's okay, but that goes back to my earlier discussion with you isn't that admission on your part that the evidence that you put on was geared towards a

[00:11:17] Speaker 00:
the preamble not being limiting.

[00:11:21] Speaker 00:
And you answered me before, because my concern was about a remand to say, give you an opportunity.

[00:11:27] Speaker 00:
The evidence is the same.

[00:11:29] Speaker 00:
So that suggests to me that based on the evidence in the record, you couldn't put together an argument with respect to why there's an issue of material dispute.

[00:11:38] Speaker 04:
Thank you, Your Honor.

[00:11:39] Speaker 04:
The evidence wouldn't be the same, because in the one sense, if you look at our opening summary judgment.

[00:11:44] Speaker 00:
Just on that point, it wouldn't be the same.

[00:11:45] Speaker 00:
But is it in the record?

[00:11:47] Speaker 04:
We have it.

[00:11:49] Speaker 04:
I don't think it's in the record because we never attempted to prove that.

[00:11:53] Speaker 00:
So if we did a remand to give you another opportunity, you would have to open discovery?

[00:11:57] Speaker 04:
I'm so sorry.

[00:11:58] Speaker 04:
We have two ships crossing in the night.

[00:12:01] Speaker 04:
We would not have to reopen discovery.

[00:12:02] Speaker 04:
We just didn't marshal it before.

[00:12:05] Speaker 04:
We didn't marshal everything before the district court to try to show inequality of

[00:12:10] Speaker 04:
of resistance.

[00:12:11] Speaker 04:
We showed resistance.

[00:12:12] Speaker 00:
Is it in the record?

[00:12:14] Speaker 04:
It is in the record.

[00:12:15] Speaker 02:
Can I get clarification on this, counsel?

[00:12:18] Speaker 02:
What evidence did you actually pit before the district court in terms of proving infringement versus what evidence do you say you would have liked to have pit before the district court?

[00:12:29] Speaker 02:
I'm trying to understand that delta.

[00:12:31] Speaker 04:
I understand.

[00:12:31] Speaker 04:
Thank you for that.

[00:12:33] Speaker 04:
The delta, I don't know that there's as much delta in

[00:12:38] Speaker 04:
The delta would have been in the explanation.

[00:12:40] Speaker 04:
For example, the ballistics reports that I was referring to in response to Judge Stark's question earlier, that's in the record.

[00:12:48] Speaker 04:
But we didn't argue that there's equality.

[00:12:52] Speaker 02:
In terms of these summary judgment motions, what evidence was presented in terms of those motions, the summary judgment motion of infringement or the summary judgment motion of non-infringement, versus what you're saying is evidence you would have liked to pit forth

[00:13:07] Speaker 02:
in light of the district court's claim construction.

[00:13:09] Speaker 02:
I'm assuming that it's a difference there.

[00:13:13] Speaker 02:
It's not the same evidence.

[00:13:14] Speaker 04:
No, it's not the same evidence.

[00:13:16] Speaker 04:
But for instance, we didn't explain different parts of the Adam Cardy report.

[00:13:23] Speaker 04:
But if we would have had a chance to have explained it, we would have explained it.

[00:13:28] Speaker 04:
So we never provided any argument to try to meet the district court's

[00:13:33] Speaker 04:
what we would consider a surprise construction.

[00:13:37] Speaker 04:
So the evidence is, we would say, most of it's still actually in the Cardi report.

[00:13:41] Speaker 04:
We just didn't shine a light on it, but we did point to that in our briefing before this court.

[00:13:46] Speaker 00:
Did you ask, did you say anything to the district court after her new claim construction?

[00:13:50] Speaker 00:
Did you go back and say, hey, can we have a new opportunity since this caught us off guard?

[00:13:56] Speaker 00:
These arguments to you?

[00:13:57] Speaker 04:
That's what we, the court, we would have, but the court,

[00:14:02] Speaker 04:
in her final judgment.

[00:14:04] Speaker 04:
That's why what's critical to understand here is we're appealing the most recent summary judgment.

[00:14:11] Speaker 04:
So when the court made that motion, she essentially dismissed the case and said, no, we didn't have an opportunity to even go back before the court.

[00:14:21] Speaker 04:
And we knew this would turn on claim construction.

[00:14:24] Speaker 04:
So we're not going to make a motion for reconsideration on claim construction.

[00:14:28] Speaker 04:
We didn't think it moved to that level of error.

[00:14:30] Speaker 04:
So we're before you to help what we would say.

[00:14:32] Speaker 03:
I'm struggling with why we should, if this is our reasoning, give you another chance.

[00:14:38] Speaker 03:
At the summary judgment stage, both sides seem to have proposed what the construction should be if the preamble was going to be limiting.

[00:14:49] Speaker 03:
That happened, right?

[00:14:51] Speaker 03:
You all knew there was going to be

[00:14:53] Speaker 03:
additional claim construction at summary judgment.

[00:14:56] Speaker 03:
You didn't want it, but you knew that was going to happen, correct?

[00:15:00] Speaker 03:
I did want it.

[00:15:00] Speaker 03:
Yes.

[00:15:01] Speaker 03:
You did want it, but it didn't go the way you wanted.

[00:15:04] Speaker 03:
But the other side put forward a proposed construction, which I think at JA65 was that the edge limitation be a limitation and mean preventing complete penetrations at the edge and requiring ballistic testing to prove, right?

[00:15:20] Speaker 03:
That's what they argued.

[00:15:22] Speaker 03:
I think so.

[00:15:23] Speaker 03:
So why didn't that at least

[00:15:25] Speaker 03:
give you notice and therefore opportunity and indeed an incentive to come forward with this explanation of Dr. Cardy or any other evidence.

[00:15:35] Speaker 03:
You had that chance and why should we give you another chance just because the district court didn't go as far as they wanted but went further than you wanted?

[00:15:45] Speaker 04:
You know, Your Honors, just to be clear, we did provide that evidence.

[00:15:49] Speaker 04:
As a matter of fact, if you were to read the structure of our opening brief, we actually led presuming maybe this would be a limitation, but just given it's Phillips.

[00:16:01] Speaker 04:
You know plain and ordinary meaning and we introduced evidence.

[00:16:04] Speaker 03:
I mean there's there one of their press in support of your and your motion Yes, what we do you think the discourse should have understood was also in a position to there Yes, I can check that on the rebuttal but that was my understanding is to save save resources for the district court We didn't want to report.

[00:16:19] Speaker 04:
We don't want to repeat.

[00:16:21] Speaker 03:
Okay, then let me just make sure I understand your position if we were to Give you another chance on remand

[00:16:28] Speaker 03:
There is other evidence in the record that you would want to further explain or no.

[00:16:35] Speaker 03:
But now it seems like you were telling me the district court already has all of it.

[00:16:42] Speaker 04:
It's not that the district court doesn't have the evidence to show equality of resistance between the medial portion and the edge, but we have it in discovery.

[00:16:50] Speaker 04:
We've just never been able, we've never had it, we were never, we never... So you didn't put that in front of her, okay?

[00:16:57] Speaker 03:
And I guess my question remains, then why didn't you when you knew they were asking for that construction?

[00:17:02] Speaker 03:
Didn't you already have a chance to do that?

[00:17:05] Speaker 03:
Why should we give you a rerun?

[00:17:07] Speaker 03:
Oh, okay.

[00:17:07] Speaker 04:
So we do feel like we put in evidence to rebut

[00:17:11] Speaker 04:
MV Squared's proposed construction that they thought it either would have, it would be limiting in some regard.

[00:17:18] Speaker 04:
We did provide that evidence and we included things like deposition testimony of Keith Harrison where he admitted that it works, he admitted that it resists.

[00:17:26] Speaker 04:
We already included that.

[00:17:27] Speaker 04:
We led with that.

[00:17:29] Speaker 04:
But then the court said, well, this is to prove a different point that there has to be a quality of resistance, which we say is not justified by the specification.

[00:17:38] Speaker 04:
And there's no evidence before us for that.

[00:17:41] Speaker 04:
It looks like I'm out of my time.

[00:17:43] Speaker 00:
You're way over time, but we have a lot of questions.

[00:17:45] Speaker 00:
So we'll restore some rebuttal.

[00:18:04] Speaker 01:
Good morning, Your Honor.

[00:18:05] Speaker 01:
May it please the Court?

[00:18:06] Speaker 01:
My name's James Goloday.

[00:18:07] Speaker 01:
I represent MV2.

[00:18:10] Speaker 01:
With the court's indulgence, I'd like to kind of start at the end with the discussion.

[00:18:15] Speaker 00:
I'm hoping you will, because we've narrowed this down to kind of the questions we are asking so you can tell that's what we want.

[00:18:21] Speaker 00:
Yes, Your Honor.

[00:18:22] Speaker 00:
Why shouldn't they be allowed a do-over?

[00:18:25] Speaker 00:
And what would the do-over look like if they were allowed to do that?

[00:18:29] Speaker 01:
Yes, Your Honor.

[00:18:30] Speaker 01:
And I want to give a little context for this because as LTC mentioned, they filed an initial summary judgment motion in 2020 where they said there was a claim construction dispute about the preamble.

[00:18:42] Speaker 01:
Now, we think part of that was manufactured, trying to reverse course on what they'd already agreed to.

[00:18:47] Speaker 01:
And part of it was real.

[00:18:49] Speaker 01:
What does resist edge impact penetrations mean?

[00:18:53] Speaker 01:
They'd known about it for years.

[00:18:55] Speaker 01:
Now, come 2023, their second motion, not only do they raise the same issue, they also specifically recognize that the court could go one of three ways.

[00:19:08] Speaker 01:
In their brief, they specifically say the court could agree with us that it's not a limitation, the court could interpret it like we think they should, extremely broadly, or it could take a more narrow construction.

[00:19:19] Speaker 01:
So the idea that they were somehow surprised

[00:19:23] Speaker 01:
It just doesn't hold water here.

[00:19:25] Speaker 01:
Especially when the judge went to their own specification and pulled the words out.

[00:19:32] Speaker 01:
It's difficult to imagine a circumstance where a patent owner could say they were surprised by the judge looking at the specification, even more so here, where LTC specifically directed the court to the specification.

[00:19:46] Speaker 01:
Yes, Your Honor.

[00:19:46] Speaker 02:
Perhaps for the moment, maybe assume that we're agreeing that the preamble is limiting.

[00:19:51] Speaker 02:
and assume for the moment we agree with the district court's clean construction.

[00:19:56] Speaker 02:
With that in mind, the part that I still feel like I haven't gotten a clean answer on is, what evidence was before the district court with respect to these respective summary judgment motions that happened?

[00:20:08] Speaker 02:
Is that something you can answer?

[00:20:10] Speaker 01:
Absolutely, Your Honor.

[00:20:11] Speaker 01:
I think the court's opinion deals with this very well and accurately.

[00:20:17] Speaker 01:
If we look to what Judge Blake referred to, it was essentially that LTC had given up on presenting evidence.

[00:20:25] Speaker 01:
And if you look at their reply brief at page 23, they list the items kind of in trying to get, trying to- Reply brief here?

[00:20:34] Speaker 01:
Yes, Your Honor.

[00:20:37] Speaker 01:
Yes, so the yellow brief page 23.

[00:20:40] Speaker 01:
I know.

[00:20:41] Speaker 01:
Yes, Your Honor.

[00:20:42] Speaker 01:
So they go through a list of supposed evidence that they presented at the lower court.

[00:20:51] Speaker 01:
Now again, this is the exact evidence that the district court dealt with.

[00:20:55] Speaker 01:
Most of it has nothing to do with resisting edge impact penetrations under the judge's construction.

[00:21:01] Speaker 01:
LTC offers very broad generalizations.

[00:21:05] Speaker 01:
Well, we admitted armor panels are for resisting penetrations, as if that says something.

[00:21:12] Speaker 02:
So just kind of following up on what you're stating here, counsel, you indicate most of it doesn't have to do with the four resisting limitation.

[00:21:18] Speaker 02:
Can you point out on page 23 which, if any, have to do with the four resisting limitation?

[00:21:24] Speaker 01:
I would agree with Judge Blake that the only items in here which could be relevant were the email by Harrison, number six.

[00:21:36] Speaker 01:
Potentially it did the deposition by Harrison, number seven.

[00:21:47] Speaker 01:
And that's really it.

[00:21:50] Speaker 00:
Is Dr. Cardy listed here?

[00:21:52] Speaker 01:
No, Your Honor.

[00:21:53] Speaker 01:
LTC presented no evidence from Dr. Cardy.

[00:21:56] Speaker 01:
Dr. Cardy's name didn't come up in their renewed summary judgment motion.

[00:22:00] Speaker 03:
not in their affirmative motion or in their opposition to you?

[00:22:04] Speaker 01:
Not to the best of my knowledge, Your Honor.

[00:22:07] Speaker 01:
And I believe that's what a district court recognized as well.

[00:22:11] Speaker 01:
And we scrutinized it at the time.

[00:22:13] Speaker 01:
And this was essentially LTC putting their chips

[00:22:20] Speaker 01:
on a very broad construction?

[00:22:21] Speaker 00:
She did say that.

[00:22:23] Speaker 00:
At Appendix 74, she says, notably, LTC does not cite the expert report from Dr. Cardy in its summary judgment briefing to support an argument.

[00:22:33] Speaker 00:
Yes, Your Honor.

[00:22:35] Speaker 00:
But the question remains, then, if Judge Cunningham is satisfied with the answer.

[00:22:41] Speaker 00:
It got a claim construction that precisely was not on the table before she ruled.

[00:22:49] Speaker 00:
does that open up the door to them being able to take stuff that's in the record and recast it for argument purposes to respond to the district court's new claim construction?

[00:23:03] Speaker 01:
I don't believe it does, Your Honor.

[00:23:05] Speaker 01:
Under O2 and its progeny, including level sleep, I don't believe that a new claim construction, its summary judgment,

[00:23:14] Speaker 01:
is grounds for reopening the record or producing new evidence.

[00:23:18] Speaker 01:
And I think that's the settled law on the subject.

[00:23:21] Speaker 03:
How about the Fourth Circuit case of Moore that was cited?

[00:23:25] Speaker 01:
Well, interestingly, Moore and Mickelson, which I think were both cited in the recent Rothschild versus Coca-Cola,

[00:23:33] Speaker 01:
Those are sua sponte summary judgment decisions.

[00:23:37] Speaker 01:
So there was no motion before the court.

[00:23:40] Speaker 01:
And so the courts in both Moore and Mickelson found that that was a surprise, is my understanding, Your Honor.

[00:23:46] Speaker 03:
OK.

[00:23:46] Speaker 03:
But I'm not sure that that's a dispositive distinction.

[00:23:50] Speaker 03:
It's maybe an important one.

[00:23:51] Speaker 03:
Here, the argument, I think, is the construction was, in essence, sua sponte, because it wasn't what either side

[00:24:01] Speaker 03:
proposed and so under the more fourth circuit standard they would argue they were not on notice that they had to come forward with all of their evidence that was responsive to this Suez-Fonte construction.

[00:24:17] Speaker 03:
Why would that not be the right way to analyze this?

[00:24:20] Speaker 01:
Well, I would argue that that would cut against this court's precedent already.

[00:24:24] Speaker 01:
But more so, I think it's really the nature of the surprise.

[00:24:29] Speaker 01:
If you can say truly we were surprised, this came out of nowhere.

[00:24:33] Speaker 01:
But in a claim construction setting, Your Honor, I think that would go more to whether or not the claim construction was correct.

[00:24:41] Speaker 01:
If a claim construction was truly so unforeseeable, then I think it would raise questions about whether or not under a

[00:24:48] Speaker 01:
under de novo review whether it was correct rather than whether it should be considered a surprise and we're going to give the

[00:24:57] Speaker 01:
give the patent owner another chance here.

[00:24:59] Speaker 01:
And I think here it's instructive that LTC did present that evidence in its first summary judgment motion in 2020.

[00:25:08] Speaker 01:
It presented expert, and then it made a conscious decision, still recognizing that the court could go any number of ways to radically change their approach and stake it all

[00:25:20] Speaker 01:
without any inventor or without any expert testimony, without any expert report, nothing to tie the two together.

[00:25:29] Speaker 01:
And if I may just briefly, your honor, explain why this would be a fruitless exercise.

[00:25:35] Speaker 01:
LTC characterizes what these test results are, but they don't talk about the fact that these tests were on a limited number of panels during the development process.

[00:25:46] Speaker 01:
before the patent was even filed.

[00:25:49] Speaker 01:
Those armor panels were twice as thick, they had twice the aerial density, and LTC could not even say what the edge trim on those panels was.

[00:26:00] Speaker 01:
So there's no connection between the panels that were tested and the panels that LTC supposedly now says

[00:26:07] Speaker 01:
are similar to MV squareds.

[00:26:09] Speaker 01:
So there's no way to connect the dots here.

[00:26:13] Speaker 01:
And this is what went into a lot of our briefing on excluding the expert in the expert report, which the judge didn't decide on, Your Honor.

[00:26:22] Speaker 00:
Can I just ask you, on the record here, leaving aside your alternative basis for affirmance, you also had other basis for summary judgment, right?

[00:26:32] Speaker 00:
Yes.

[00:26:32] Speaker 00:
And that the judge didn't feel the need to go into because of her disposition here.

[00:26:37] Speaker 01:
Absolutely, Your Honor.

[00:26:38] Speaker 01:
And I believe you're referring to the less than one inch

[00:26:41] Speaker 01:
feature, which is clearly not present in the remaining commercial panels, which as your honor noted, you're talking about $6,500 in damages, and you ask them whether it was miniscule.

[00:26:55] Speaker 01:
In the context of the litigation that has gone on since the 1498 motion, $6,500 is certainly minuscule and does beg the question of why we keep pursuing this.

[00:27:09] Speaker 01:
I'll say one reason is that the US government is going to be able to argue in validity, like we haven't been able to do in this case.

[00:27:17] Speaker 00:
But let me, since we're on a side light, but your friend did it.

[00:27:20] Speaker 00:
And if you're comfortable, if you can cite us to anything in the record, I'm not sure it's there.

[00:27:25] Speaker 00:
In the 1498, that's one difference in validity.

[00:27:28] Speaker 00:
But what is the impact?

[00:27:29] Speaker 00:
I mean, I think they're concerned about the claim construction here.

[00:27:33] Speaker 00:
And if we were to affirm that given the preamble is limiting and if the

[00:27:40] Speaker 00:
Court's claim construction is right.

[00:27:42] Speaker 00:
Are they still left with infringement arguments, as they're suggesting they would have put on here if they had known the claim construction?

[00:27:50] Speaker 00:
Would those be right for 1498 review?

[00:27:53] Speaker 00:
And would those be the same as they would make in this case?

[00:27:58] Speaker 01:
Do I understand if they were to pursue against the government, Your Honor?

[00:28:02] Speaker 01:
Yeah, I think if they pursue against the government, there's a number of difficulties.

[00:28:06] Speaker 01:
Perhaps they could overcome it.

[00:28:08] Speaker 01:
Perhaps they could shoot the panel, which we literally gave them a test panel.

[00:28:14] Speaker 01:
LTC has a ballistic testing facility.

[00:28:17] Speaker 01:
They could have shot that panel.

[00:28:19] Speaker 00:
But just to get to our case, because I don't want to go too far astray, and I recognize that I'm the one that led you astray.

[00:28:26] Speaker 00:
But with respect to this case, Dr. Cardy had the opportunity to test your device.

[00:28:32] Speaker 00:
Absolutely.

[00:28:33] Speaker 00:
And he did not do that.

[00:28:34] Speaker 00:
Absolutely.

[00:28:37] Speaker 00:
Why was that necessary?

[00:28:39] Speaker 00:
Does his testimony with regard to the similarity of your device and their patented device obviate the need for them to have done actual testing?

[00:28:48] Speaker 00:
Why wasn't what he said sufficient?

[00:28:50] Speaker 01:
Not according to all of the extrinsic evidence in this case.

[00:28:56] Speaker 01:
At least two out of the three inventors testified you needed ballistic testing to show resisting ballistic edge impact penetration.

[00:29:05] Speaker 01:
Our expert

[00:29:06] Speaker 01:
with decades of experience specifically in the armor industry, said you need ballistic testing.

[00:29:13] Speaker 01:
It's too unpredictable of an event.

[00:29:17] Speaker 02:
So, counsel, I want to say that opposing counsel argued that there was some testing done.

[00:29:21] Speaker 02:
I don't know exactly how you phrased it.

[00:29:23] Speaker 02:
Something similar.

[00:29:24] Speaker 02:
You made it clear it wasn't actually the accused product.

[00:29:27] Speaker 02:
Can you respond to what you're saying?

[00:29:30] Speaker 02:
What's your response to that testing that he pointed out?

[00:29:33] Speaker 01:
The only testing that they produced for us or ever in this case had to do with testing that was done prior to LTC's application for patent, which was in the testing and evaluation, trying to figure out

[00:29:47] Speaker 01:
how they could do this and what they would do.

[00:29:50] Speaker 01:
Those tests, again, so you've got, we'll call them three sets of panels in this case, you've got those panels that were tested, you've got LTC's Mark 6 panels that they compared MV2's test panel to.

[00:30:04] Speaker 01:
The expert took Mr. Coltrane's word for the fact that he didn't see any distinctive difference.

[00:30:10] Speaker 01:
But in fact, the panels that were tested were quite different, twice the thickness, twice the aerial density.

[00:30:18] Speaker 01:
And critically, LTC could not tell us what the edge trim was on those test panels.

[00:30:23] Speaker 01:
So it's really a black box, Your Honor.

[00:30:27] Speaker 03:
Can I ask you on the actual construction itself and whether the preamble is limiting?

[00:30:32] Speaker 03:
If the blue brief at 35 says this, I'd just like the response.

[00:30:37] Speaker 03:
To permit an alternate result, that is to treat this preamble as limiting, would allow a user to make armor panels

[00:30:46] Speaker 03:
that include every feature recited in the lengthy body of Claim 7, but avoid infringement by simply contending that they are used for something else, such as to help avoid wear and tear.

[00:30:59] Speaker 03:
Is that correct?

[00:31:00] Speaker 01:
No, Your Honor.

[00:31:01] Speaker 01:
I believe I'm in my rebuttal time, but in response to your question, Your Honor, of course.

[00:31:09] Speaker 01:
This is not an intended use case.

[00:31:10] Speaker 01:
We've never argued that it's an intended use.

[00:31:14] Speaker 01:
This is not like TomTom literally when the preamble said for use.

[00:31:18] Speaker 01:
It is a functional limitation.

[00:31:21] Speaker 01:
So the lack of infringement is not just saying we're not using it for that.

[00:31:28] Speaker 01:
We don't have that feature.

[00:31:30] Speaker 01:
You have to prove that we have that functional feature, which I think this court dealt with very well recently.

[00:31:38] Speaker 01:
And the judge cited Liberty ammunition, a functional limitation.

[00:31:42] Speaker 01:
We've got to find a baseline.

[00:31:43] Speaker 01:
It's got to be something you can prove.

[00:31:45] Speaker 01:
It can't just be a nebulous idea.

[00:31:51] Speaker 00:
You haven't touched on your- I haven't, Your Honor.

[00:31:55] Speaker 00:
We're more than happy to rest on the briefs on that.

[00:31:58] Speaker 00:
Yeah, conditional cross.

[00:32:02] Speaker 00:
Thank you.

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

[00:32:15] Speaker 00:
We'll restore two minutes of rebuttal.

[00:32:21] Speaker 04:
I think the main thing I'd like to confirm, and just to do a bit of a level reset,

[00:32:26] Speaker 04:
is that the re-exam, the Patent Office never regarded this, never regarded the preamble as a limitation, not the Four Resisting Clause.

[00:32:36] Speaker 04:
We never relied on it as a limitation throughout a lengthy protracted re-exam, where if there were ever a time, that would have been it.

[00:32:43] Speaker 04:
We were under the BRI standard, and that could have been a narrowing benefit to us.

[00:32:49] Speaker 04:
We did not do that.

[00:32:51] Speaker 04:
We asked the court to revisit claim construction.

[00:32:53] Speaker 04:
The court did revisit claim construction.

[00:32:56] Speaker 04:
All of the arguments were made about what the claim construction should be.

[00:33:01] Speaker 04:
And this is a lengthy claim that defines a structurally complete invention.

[00:33:07] Speaker 04:
And that being the case, and I was touched on one thing that my friend closed on is he talked about how supposedly important it was that testing happened.

[00:33:17] Speaker 04:
That never happened.

[00:33:19] Speaker 04:
The court didn't rule on invalidity until later.

[00:33:22] Speaker 04:
When they served their ability to contention, there was certainly no evidence in any art of anything actually resisting edge impact penetration, certainly not any narrower than one would think.

[00:33:34] Speaker 04:
And that was also not included in the re-examination request.

[00:33:39] Speaker 04:
And the patent office certainly didn't actually show that any prior art actually resisted or shoot shot panels.

[00:33:45] Speaker 02:
But why wouldn't there have been testing to prove up the infringement case?

[00:33:49] Speaker 04:
I'm sorry, Your Honor.

[00:33:50] Speaker 04:
I didn't hear that.

[00:33:51] Speaker 02:
Why wouldn't you have put in testing to prove up the infringement case?

[00:33:56] Speaker 04:
Your Honor, because this is an apparatus claim.

[00:33:58] Speaker 04:
An infringement is shown by showing that the elements are met.

[00:34:01] Speaker 04:
I mean, all we would need to show that the specification doesn't require.

[00:34:07] Speaker 04:
There's no disavowal.

[00:34:08] Speaker 04:
There's no lexicography.

[00:34:10] Speaker 04:
It's for resisting, and we did.

[00:34:11] Speaker 04:
Here's the answer to, I'm sorry, Your Honor.

[00:34:13] Speaker 04:
It was in the confidential appendix.

[00:34:15] Speaker 04:
I was searching at the wrong one.

[00:34:17] Speaker 04:
and it's in the confidential appendix at

[00:34:30] Speaker 04:
It's what we marked on page 49 of our opening brief, Your Honor, where we list the evidence.

[00:34:37] Speaker 04:
The MV Squared email from Keith Harrison, the Harrison deposition testimony, the ballistic testing evidence, MV Squared's experts' admissions that its panels provide at least some resistance, which is what we thought we were up against, MV Squared's response to its RFQ, MV Squared's admission, we served an RFA on this,

[00:34:58] Speaker 00:
Just to be clear, are we talking about what you raised in your motion?

[00:35:01] Speaker 00:
Yes, we are.

[00:35:02] Speaker 00:
But you're not talking about your objection or your response to their motion?

[00:35:08] Speaker 04:
I wasn't able to put my finger on, because I don't know if we put that whole brief in the record.

[00:35:13] Speaker 04:
I don't know if I was able to put my finger on referring back.

[00:35:16] Speaker 04:
But I think what we did for judicial economy, because the court had page limits for both people, is we referred back to our opening brief.

[00:35:24] Speaker 04:
And we figured, since we had listed this information in our opening brief,

[00:35:28] Speaker 04:
that it would be the same as whether we included in a response to their cross-motion.

[00:35:34] Speaker 04:
Am I over?

[00:35:35] Speaker 04:
Yes.

[00:35:35] Speaker 04:
Thank you.

[00:35:36] Speaker 00:
Anything else?

[00:35:36] Speaker 00:
We thank both sides of the case.

[00:35:38] Speaker 00:
Thank you.