[00:00:00] Speaker 00: Our first case this morning is TQ Delta versus a lot of parties, Comscope, Golden Company, et cetera. [00:00:08] Speaker 00: 2024, 1587, 1588. [00:00:11] Speaker 00: Mr. Lamkin. [00:00:16] Speaker 02: Good morning. [00:00:17] Speaker 02: Thank you. [00:00:17] Speaker 02: May it please the court. [00:00:19] Speaker 02: I'd like to focus on infringement of the 008 patent, the erroneous jury instruction on damages, before turning, if time remains, to the construction of the flag section of the 835 patent. [00:00:28] Speaker 01: Mr. Lampkin, on pages 57 and 58 of the Blue Bridge, you say, and I'm quoting, the court conceded it could find, and then there's a quote, internal, no precedent affirmatively holding that the cost savings approach is limited to the cost savings of the defendant, close quote. [00:00:52] Speaker 01: In fact, what the district court said was, while comscope [00:00:59] Speaker 01: has pointed to no precedent. [00:01:01] Speaker 01: Not that it could find no precedent. [00:01:04] Speaker 01: While Comscope has pointed to no precedent affirmatively holding that the cost savings approach is limited to the cost savings of the defendant, comma, TQ Delta has not pointed to any case in which the cost savings approach was premised upon savings to a non-party end user, such as AT&T here. [00:01:27] Speaker 01: Isn't your shortened quotation misleading to this court? [00:01:30] Speaker 02: It is imprecise, and I apologize for it. [00:01:32] Speaker 02: It should have said that the court noticed that neither party could identify cases either way, rather than attributing it to the court. [00:01:39] Speaker 02: And I apologize for that imprecise. [00:01:40] Speaker 02: And you also left off a major portion of what was said. [00:01:43] Speaker 02: Yeah, that we could not find one either. [00:01:45] Speaker 02: It should have said neither party. [00:01:47] Speaker 02: And I apologize to the court for that. [00:01:49] Speaker 02: But the fact remains on that one is that, well, if we were going to turn to damages, it seems to me that the answer should have been very clear, that cost savings aren't limited to the actual accused infringer. [00:02:00] Speaker 01: What authority did you point in the district court on this point about the scope of cost savings approach? [00:02:05] Speaker 02: So our principal case was Ericsson versus D-Link, which says that you look to the incremental value the patent adds to the end user product. [00:02:14] Speaker 01: authority premised upon savings to a non-party end user? [00:02:19] Speaker 02: No, D-Link was a benefit, but it wouldn't make sense to say cost savings can only go to the infringer, but benefits can go to their customers. [00:02:30] Speaker 02: If you're talking about, for example, a Prius hybrid drive, no one would say, oh, you look at the gas savings to Toyota, who makes it. [00:02:37] Speaker 02: You wouldn't look at the gas savings to the consumer, who uses it. [00:02:41] Speaker 02: Because Toyota benefits because the consumers save money on gas. [00:02:44] Speaker 02: That was our exact theory here. [00:02:46] Speaker 02: And it's just plain error to try and say the opposite. [00:02:49] Speaker 01: You argue in your reply, the yellow brief, at page 29, that your role 51 objection to the district court's damages and inspections [00:02:59] Speaker 01: met the standards of Rule 51 for specificity. [00:03:04] Speaker 01: Rule 51 says, a party who object must do so on the record, stating distinctly the matter objected to and the grounds for the objection. [00:03:17] Speaker 01: Cite me to the federal rules of evidence, which were implicated by the objection and how that was clearly articulated. [00:03:23] Speaker 02: Yeah, certainly. [00:03:24] Speaker 02: I think that if you take a look at the record, and I'd ask the court to turn to 6386, which is where everybody was looking, this is the proposed instruction that Judge Yelstrup had before him. [00:03:35] Speaker 02: And Judge Gilstrop says, and I'm reading from the record here, page 6189, says, let's turn to page 25, so everyone knows we're on page 25. [00:03:43] Speaker 02: Are there objections here? [00:03:45] Speaker 02: And then Mr. Fink says, yes, from the plaintiff, the first paragraph and the second sentence begins, this approach relies on estimated costs. [00:03:51] Speaker 02: You can follow along from the third line, this approach relies on estimated costs. [00:03:55] Speaker 02: He says, plaintiff subjects to language in that sentence and the following sentence, and we propose that the language be changed in the second sentence too. [00:04:01] Speaker 02: So now we can follow along. [00:04:03] Speaker 02: If you just start at third line, it starts at parallel. [00:04:05] Speaker 02: He says, the approach relies upon estimated costs, if any, that, and then he takes out the comscope save from, and then inserts the making, using, or selling of the accused products save. [00:04:18] Speaker 02: Following along with that language and seeing what he was changing it to, which is what was happening in the courtroom, you can't miss that he's taking the two comscope out and putting in save to make it generic. [00:04:29] Speaker 02: The same thing for the next sentence. [00:04:31] Speaker 02: he says the following sentence, plaintiff would change the language too, so if you start as inconsidering, that's the next sentence, inconsidering the amount of reasonable royalty damages under the cost savings model, that's all the same, you should focus on, that's all the same as well, whether comscopes, and then he makes a little change here, it says make user sale, and he changes to making user sale, and says of the patented technology, and then he doesn't say allowed it to, taking out comscope, [00:04:56] Speaker 02: avoided taking a different, more costly course of action. [00:05:00] Speaker 02: So he is now taking ComScope out of it again. [00:05:02] Speaker 02: And everybody's following along on this page to see exactly what's happening. [00:05:05] Speaker 04: The objection did not attempt to remove the last reference to ComScope in this instruction, which you didn't read. [00:05:13] Speaker 04: But it says, so how much ComScope saved by using the accused products instead of taking the more costly course of action. [00:05:21] Speaker 04: So if I'm the district court judge, [00:05:25] Speaker 04: I wouldn't exactly know what council was trying to do here, given that CommScope still is being [00:05:35] Speaker 04: referenced here, and the focus is still on comscope. [00:05:38] Speaker 04: And that's entirely consistent with the proposed jury instruction that was sent by email to the court at A6414, which made it very clear that what the plaintiff was looking for was [00:05:56] Speaker 04: cost savings by the defendant's infringement allowed it to avoid taking a different, more costly course of action. [00:06:03] Speaker 01: And my point is more procedural. [00:06:06] Speaker 01: And that is that what you've read is the proposed changes to the instruction, right? [00:06:13] Speaker 02: Yes, to delete, to get rid of. [00:06:15] Speaker 01: And what the rule says is that it has to state distinctly [00:06:21] Speaker 01: the matter objected to and the grounds for the objection. [00:06:25] Speaker 02: Yes. [00:06:25] Speaker 02: That's not in here. [00:06:27] Speaker 02: So under the Fifth Circuit precedent, in a case called Kroger in particular, the court will look and see if the basis is readily apparent, if it just has to give sufficient notice. [00:06:36] Speaker 02: I don't think anyone looking at it. [00:06:38] Speaker 02: Filling with questions of procedure, are we following our precedent or the Fifth Circuit's? [00:06:43] Speaker 02: Since this is a Fifth Circuit procedural issue not related to patent law, just for Rule 50, you would follow the Fifth Circuit precedent. [00:06:50] Speaker 02: But under Fifth Circuit precedent, you just have to give fair notice to the district court of the nature of the error. [00:06:53] Speaker 02: Not related to patent law? [00:06:55] Speaker 02: Pardon? [00:06:56] Speaker 02: How is it not related to patent law? [00:06:58] Speaker 02: It's an objection to whether or not there's a sufficient objection procedurally to put the district court on notice of the nature of the objection. [00:07:05] Speaker 02: And it's a damages question. [00:07:07] Speaker 02: It probably comes from this court. [00:07:08] Speaker 02: But the procedural requirements for preserving it would be Fifth Circuit law. [00:07:12] Speaker 02: But the ordinary rule is you just have to give the district court fair notice, and it gives us fair notice. [00:07:16] Speaker 02: In fact, in Kroger itself, the objection was, I object to the omission of instruction number three. [00:07:21] Speaker 02: Nothing more. [00:07:21] Speaker 02: But there had been previous things that gave the court notice about the nature of that objection. [00:07:25] Speaker 02: So that should be absolutely sufficient. [00:07:27] Speaker 02: Judge Chan, to turn to your question about [00:07:29] Speaker 02: the fact that there was a prior proposal that suggested that perhaps you could... 6413. [00:07:37] Speaker 04: Commscope-centric cost avoidance. [00:07:42] Speaker 02: The key thing there is there's two key things about that. [00:07:44] Speaker 02: One is it says first, the first thing is has [00:07:47] Speaker 02: Reliance on estimated cost savings from use of the infringing product is a well-settled method. [00:07:54] Speaker 02: Savings from use. [00:07:55] Speaker 02: The user here isn't CommScope. [00:07:57] Speaker 02: They don't use the product. [00:07:59] Speaker 02: AT&T, the carrier, uses the product. [00:08:00] Speaker 02: So it's focused on use in the user. [00:08:02] Speaker 02: Now there is that language you pointed out that says the standard can be met if [00:08:08] Speaker 02: So that's just one example of how you would meet it. [00:08:11] Speaker 02: If the court had adopted that exact language, even though we objected to it later, there might be a problem. [00:08:15] Speaker 02: But the district court went further. [00:08:17] Speaker 02: He directed the jury's sole focus to comscope savings and omitted any other savings. [00:08:23] Speaker 02: And he also left off, what we added to is at the end, we quote, [00:08:29] Speaker 02: the seminal case, Erickson versus D-Link, and say, you've got to look at what value adds to the end product, the end user product. [00:08:38] Speaker 02: That's the focus of the damage assessment. [00:08:40] Speaker 02: I think these are amply sufficient to put the district court on notice. [00:08:42] Speaker 02: But if the district court weren't on notice, the error here would be absolutely plain. [00:08:47] Speaker 02: It just cannot be that cost savings only are to the immediate infringer, and you ignore, when valuing the product, the fact that Prius owners save a lot of money on gas. [00:08:57] Speaker 01: If I could argue. [00:08:57] Speaker 01: You argue. [00:08:59] Speaker 01: in the yellow brief, right in the same area on page 28, that the district court damages instruction was factually erroneous. [00:09:11] Speaker 01: I'm leaving out some language. [00:09:12] Speaker 01: Because it mischaracterized TQ Delta's damage theory. [00:09:17] Speaker 01: And the district court, this is the part I'm interested in, quote, later admitted, close quote, that it was, quote, incorrect, close quote. [00:09:26] Speaker 01: And you're citing to appendix 177. [00:09:29] Speaker 01: What there are you relying on for your view that the district court admitted it was incorrect? [00:09:37] Speaker 02: You know, Your Honor, I think that's, again, a place where if the district court doesn't say incorrect, that incorrect should not have been quotes. [00:09:44] Speaker 02: What we're pointing out is there's two pieces of it. [00:09:46] Speaker 02: Yeah, but you know, you're doing that a lot. [00:09:48] Speaker 02: And I don't like it. [00:09:50] Speaker 02: And I don't blame you, Your Honor. [00:09:52] Speaker 02: This should not happen. [00:09:53] Speaker 01: And I apologize. [00:09:53] Speaker 02: Yes, it should not. [00:09:54] Speaker 01: But I think if I could- It's not a question of apology. [00:09:57] Speaker 01: It's a question of, [00:10:00] Speaker 01: misleading the court. [00:10:02] Speaker 01: I mean, I went back to the record and looked when you said that, obviously. [00:10:06] Speaker 02: So the contrast we're drawing is from page 171 of the appendix where he says that our expert, quote, testified that he used a cost savings model that relied on the cost savings at AT&T Comscope's customer realized. [00:10:18] Speaker 02: So that's what our theory of the case was. [00:10:21] Speaker 02: Our theory of the case was Comscope's customer savings. [00:10:23] Speaker 02: And then the court told the jury that the model relies on comscope saved from making users selling it, the cost that allowed it to avoid. [00:10:33] Speaker 02: And if so, how much comscope saves? [00:10:35] Speaker 02: So the district court understood exactly what our theory of the case was, that it was all about AT&T, not comscope. [00:10:40] Speaker 02: It says it on page 171. [00:10:42] Speaker 02: And the district court's instructions concededly said, just look at comscope. [00:10:46] Speaker 02: That's the point we should have made, and we should have made it differently. [00:10:50] Speaker 02: I'm turning it back to the 008. [00:10:52] Speaker 02: By not making it, have you waived it? [00:10:54] Speaker 02: Pardon? [00:10:55] Speaker 01: I said, by not making it, have you waived it? [00:10:57] Speaker 02: No, Your Honor. [00:10:57] Speaker 02: There's an entire section of our brief that says the district court mischaracterized our theory of the case. [00:11:03] Speaker 02: Our theory of the case was that it's not Comscope's. [00:11:06] Speaker 02: And I don't think there can be a waiver there. [00:11:08] Speaker 02: We are specifically pointing to a failure. [00:11:09] Speaker 02: And we cite Wright and Miller, the idea that you get a theory of the case instruction, and you can't give a wrong theory of the case instruction. [00:11:15] Speaker 02: It is error for district court to misdescribe your theory of the case. [00:11:19] Speaker 02: And that's what the jury instructions did. [00:11:20] Speaker 02: They said, our theory is based on comp scope savings. [00:11:22] Speaker 02: And if you look at all the evidence, time and time again, [00:11:25] Speaker 02: The expert says over and over that he's measuring cost savings to AT&T. [00:11:30] Speaker 02: Appendix 5574, lines four to seven. [00:11:33] Speaker 02: Are you measuring cost savings to AT&T? [00:11:36] Speaker 02: Yes. [00:11:36] Speaker 02: 5658. [00:11:38] Speaker 02: You're here at cost savings to AT&T, the telephone carrier. [00:11:41] Speaker 02: Correct. [00:11:42] Speaker 02: Yes, that's right. [00:11:42] Speaker 02: So in this case, AT&T. [00:11:44] Speaker 02: Yes. [00:11:44] Speaker 02: These are not cost savings to CommScope. [00:11:46] Speaker 02: Correct? [00:11:46] Speaker 02: Of course not. [00:11:47] Speaker 02: Over and over again in the trial record, our theory was savings to AT&T. [00:11:51] Speaker 02: And the district court's instruction excluded that. [00:11:54] Speaker 00: into what you wanted to save for rebuttal, you can continue or save it. [00:11:59] Speaker 02: I would like to save for rebuttal. [00:12:00] Speaker 02: Thank you, Judge Lurie. [00:12:01] Speaker 02: Thank you so much. [00:12:02] Speaker 00: Mr. Schuman. [00:12:11] Speaker 03: Thank you, Judge Lurie. [00:12:12] Speaker 03: And may it please the court, Brett Schuman, for the appellee. [00:12:15] Speaker 03: I want to start with a question that Judge Wallach asked to Mr. Lamkin. [00:12:21] Speaker 03: Regarding damages, they have a major Rule 51 waiver problem, as we argued in the brief. [00:12:27] Speaker 03: You asked a question about which law applies on page 43 of our brief. [00:12:33] Speaker 03: We cite Fifth Circuit law. [00:12:34] Speaker 03: I think that's what Mr. Lampkin said. [00:12:35] Speaker 03: But then he watered down the standard a little bit. [00:12:37] Speaker 03: The Fifth Circuit requires under Rule 51 that the objection must be sufficiently specific [00:12:44] Speaker 03: to bring into focus the precise nature of the alleged error. [00:12:49] Speaker 03: Thus, an objecting party that fails to state the grounds for their objection does not comply with Rule 51. [00:12:53] Speaker 03: I think the transcript is pretty clear. [00:12:56] Speaker 03: T.K. [00:12:58] Speaker 03: Delta's attorney tried to wordsmith a little bit the proposed instruction, proposed in different language, never stated an evidentiary objection to it, never mentioned AT&T. [00:13:09] Speaker 03: actually. [00:13:10] Speaker 03: And if your theory of the case that you want the trial judge to articulate correctly to the jury is that Comscope should be liable for AT&T's cost savings, you probably have to propose an instruction that says AT&T in it somewhere, and they didn't do that. [00:13:26] Speaker 03: And then Judge Chen, to your question, to Mr. Lamkin, [00:13:30] Speaker 03: If there was some parsing of the proposed instruction that the court handed out that morning of the charge, March 24, 2023, and there was no objection by Mr. Feng, T.Q. [00:13:43] Speaker 03: Delta's counsel, to the first sentence, there was some wordsmithing to the second sentence and part of the third sentence. [00:13:51] Speaker 03: And then it's not just that he didn't object to the final part. [00:13:56] Speaker 03: which specifically mentioned cost savings to Comscope, he affirmatively said to the court, and the rest of the sentence would stay the same. [00:14:05] Speaker 03: That's a Rule 51 waiver, if I ever saw one. [00:14:09] Speaker 03: And then with respect to plain error, as Mr. Lamkin argued, maybe they could still get there if there was plain error. [00:14:15] Speaker 03: But how can there be plain error when we still haven't heard a case that says, as a matter of law, Comscope must, in all cases, be liable for a third party's cost savings? [00:14:27] Speaker 03: It's an issue of proof. [00:14:29] Speaker 03: And this court does not need to resolve this case, adopt any rule one way or the other, in part because of the Rule 51 problem in the waiver. [00:14:38] Speaker 03: But also, this court's precedents, including the Stickle case cited in the briefs, make clear there could be a situation where a plaintiff proves that a third party's cost savings were passed along to the defendant, or the defendant reaped some of the benefits. [00:14:54] Speaker 03: The plaintiff could try to prove, in some case it wasn't this case, that at the hypothetical negotiation, the licensing... Do we have the AT&T contract in the record? [00:15:05] Speaker 01: Our record? [00:15:06] Speaker 03: I don't think you do. [00:15:07] Speaker 01: Yeah, why not? [00:15:08] Speaker 01: It appears it was in a confidential briefing below. [00:15:13] Speaker 03: I don't think there was an AT&T witness. [00:15:16] Speaker 03: I don't think there was a lot of evidence about AT&T, but yet they put on this theory that Comscope should be liable for AT&T's entire savings from deferring having to do fiber. [00:15:28] Speaker 03: DSL allowed them to delay doing fiber. [00:15:31] Speaker 03: That was Dr. Putnam's damages theory. [00:15:33] Speaker 03: And I'm sorry, Judge Walling, I can't answer why it's not in our record. [00:15:37] Speaker 01: You make an argument, a 50AA argument, [00:15:43] Speaker 01: They should have, before the jury instructions were submitted, the jury made another 50A. [00:15:56] Speaker 01: How much time was there for them? [00:15:59] Speaker 03: Well, the purported stipulation that they lead with, this is their lead argument, that my client stipulated to infringement, which [00:16:09] Speaker 03: A defendant at the end of a trial stipulating to infringement is not unheard of, but you've got to have pretty good evidence, I think, to say that they... And in this case... I would say it's ambiguous at best, but from their viewpoint. [00:16:22] Speaker 03: And so I can, I think, agree that it's ambiguous as to what happened. [00:16:26] Speaker 03: And that is why this court should defer to Judge Gillstraps ruling on the Rule 50B motion. [00:16:33] Speaker 03: If there was a stipulation, which there wasn't, it had to have occurred in his chambers the night before the charge and the closing arguments. [00:16:42] Speaker 03: He presided over that. [00:16:43] Speaker 03: It was not transcribed. [00:16:45] Speaker 03: Then he passes out jury instructions at 7 AM in the morning to the parties, which I must say, I think there's a suggestion in T.Q. [00:16:53] Speaker 03: Delta's brief that that didn't give a lot of time. [00:16:56] Speaker 03: That's a lot more time than I've gotten when judges hand me instructions when I try cases. [00:17:01] Speaker 03: They get the instructions at 7 AM. [00:17:03] Speaker 03: They have a charge conference on the record. [00:17:06] Speaker 03: At no point, prior to submission of the case to the jury, does TQ Delta say, wait a minute, we do not need to submit infringement. [00:17:16] Speaker 03: This was stipulated. [00:17:17] Speaker 01: That was part of the questions I had that I never got to. [00:17:20] Speaker 03: And I would say that the record is even better for Comscope and harder for TQ Delta, because there is a proposed instruction handed out at 7 AM. [00:17:31] Speaker 03: And then at the charge conference, it is not objected to by TQ Delta. [00:17:36] Speaker 03: The proposed instruction, which was actually read to the jury, the defendant's comscope denied that they infringe any of the asserted claims. [00:17:44] Speaker 03: So there's a lot of attention and a lot of ink spilled on [00:17:49] Speaker 03: stipulation that somebody makes a declaration to a standard setting organization. [00:17:53] Speaker 03: And we're going to refer to that as a SEP, as a standard essential patent. [00:17:57] Speaker 03: That's the stipulation at number 15 that TQ Delta hangs its hat on. [00:18:03] Speaker 03: But then the instructions also tell the jury [00:18:06] Speaker 03: Comscope denies infringement of any of the asserted claims. [00:18:10] Speaker 03: That's Appendix 6370. [00:18:12] Speaker 03: At the formal charge conference on the record, TQ Delta did not have any objection to that instruction. [00:18:19] Speaker 03: That's Appendix 6186. [00:18:21] Speaker 03: And Judge Gilstrap so instructed the jury. [00:18:24] Speaker 04: So the jury was instructed that Comscope denies infringement, which at least when it came to the FRAND commitment section of the jury instructions, there are some very bold, clear statements that [00:18:36] Speaker 04: You know, these patents are SCP patents. [00:18:40] Speaker 04: So it would be nice if you at least acknowledged that it would have been good if you had tried to clean that up. [00:18:47] Speaker 03: Well, I think I can acknowledge that as long as it doesn't lead to a reversal, Judge Chan. [00:18:51] Speaker 03: I mean, the- Right. [00:18:54] Speaker 04: I mean, you have to explain yourself a little bit. [00:18:56] Speaker 04: Why were those statements so painfully clear? [00:19:00] Speaker 04: Sure. [00:19:01] Speaker 04: So in the list of stipulations- Nothing conditional about those statements. [00:19:07] Speaker 04: In isolation, they are very, very clear. [00:19:11] Speaker 03: Out of context. [00:19:12] Speaker 03: And Judge Gilstrap had all the context from the email that he received from, he asked the parties. [00:19:20] Speaker 03: There was a lot of history behind these instructions. [00:19:22] Speaker 03: And he asked the parties for their positions. [00:19:25] Speaker 03: And Comscope sent an email to chambers. [00:19:27] Speaker 03: It's at 7564 on March 22nd. [00:19:30] Speaker 03: This is the Wednesday of the trial week, two days before the charge and the verdict, and said, our position is that these are neither essential. [00:19:38] Speaker 03: The 008 patent, which is what we're talking about, is neither essential nor infringed. [00:19:43] Speaker 03: That's their position. [00:19:44] Speaker 03: And that's consistent with the instruction that I just referred to. [00:19:47] Speaker 03: Comscope denies infringement. [00:19:50] Speaker 03: And Comscope said, but in the event that the jury finds any of those patents, the SAPs, the 008 patent in fringe, then the patent must, by definition, be essential and subject to TQ Delta's RAND commitment. [00:20:03] Speaker 03: And so that's what Comscope put in writing to the judge. [00:20:08] Speaker 03: We deny infringement. [00:20:09] Speaker 03: We deny it's essential. [00:20:10] Speaker 03: But if the jury finds infringement, and this goes to your question, Judge Tim, because as you pointed out, this is really in the portion of the judge's charge where he's talking about damages. [00:20:20] Speaker 03: You've got a very complicated case here where T.Q. [00:20:23] Speaker 03: Delta put [00:20:25] Speaker 03: patents that they declared essential to the ITUT, and patents that were not declared essential to the ITUT in the same case. [00:20:34] Speaker 03: And so Judge Gilstrap had to figure out how to tell the jury, well, we've got a couple of non-CEP patents where you have one set of damages rules. [00:20:44] Speaker 03: And then you have patents that T.Q. [00:20:46] Speaker 03: Delta claims are CEPs. [00:20:48] Speaker 03: And if they're found to be infringed, [00:20:50] Speaker 03: Comscope agrees their steps, and now you have to do fran damages. [00:20:56] Speaker 03: That's the portion of the charge that you're referring to. [00:20:58] Speaker 03: So in the act. [00:21:00] Speaker 04: I understand this is the context part, and we understand it. [00:21:04] Speaker 04: I do have a question about how to understand the scope and meaning of the jury instruction that actually got in front of the jury. [00:21:12] Speaker 04: Would you say that this instruction necessarily constrains [00:21:20] Speaker 04: the damages theory to just cost savings that Comscope enjoyed, or would you say the jury instruction, despite its references to Comscope, nevertheless still is open enough that it permitted the jury to still consider [00:21:41] Speaker 04: all of TQ Delta's experts' testimony about downstream cost savings to your client's customers. [00:21:51] Speaker 03: It's the latter, Judge Ten. [00:21:53] Speaker 03: And Judge Gilstrap said that in his post-trial order denying TQ Delta's trauma. [00:21:58] Speaker 04: Because we have to pick one. [00:22:00] Speaker 04: Theory one is, hey, they [00:22:05] Speaker 04: They were the ones that came forward and said a com scope only type cost savings model. [00:22:11] Speaker 04: That's what they said in their email. [00:22:12] Speaker 04: And they kept it still in their objection. [00:22:16] Speaker 04: And then that's all they get. [00:22:18] Speaker 04: Or the theory is, well, despite all of these movements and communications and proposed objections, the whole ball of acts was always still on the table regardless. [00:22:36] Speaker 03: The instruction specifically, so Judge Gilstrab said, look, Compsco's damages expert offered a damage of $35 million. [00:22:44] Speaker 03: We're here because T.Q. [00:22:45] Speaker 03: Delta got $11 million, and they want more. [00:22:49] Speaker 03: By the way, this was the fourth trial on these patents. [00:22:51] Speaker 03: I know. [00:22:51] Speaker 03: Well, they wanted something like $90 million. [00:22:53] Speaker 03: They wanted $90 million. [00:22:55] Speaker 04: So why couldn't it be that the $11 million that the jury landed on [00:22:58] Speaker 04: was a number that was just a comscope-only type of cost savings value. [00:23:07] Speaker 04: And they dismissed all the downstream possible customer cost savings value. [00:23:13] Speaker 04: And that's how they ended up with just a fraction of the proposed $90 million. [00:23:17] Speaker 03: I'm two answers one. [00:23:18] Speaker 03: I don't think they were presented any evidence that Comscope saved 11 million dollars the Comscope's expert provided a Hypothetical negotiation based on actual license agreements and based on that he said the willing you know the licensee Comscope would have paid five million Secondly the instruction I think this is really maybe I misunderstood your question the first time the first sentence of the instruction that was not objected to by anybody [00:23:43] Speaker 03: explicitly invited the jury to consider Comscope's customers. [00:23:48] Speaker 03: T.Q. [00:23:48] Speaker 03: Delta, the plaintiff, has proposed a cost savings model of calculating reasonable royalty damages that values the accused products that Comscope, the defendant, provides to its customers. [00:24:01] Speaker 03: So again, they were allowed to consider cost savings to customers. [00:24:05] Speaker 03: And I think in a case with the right proof about how the defendant in the case benefited from those cost savings to the customers, they might have gotten higher. [00:24:16] Speaker 03: But they got more than the amount that Comscope's expert offered the jury. [00:24:23] Speaker 01: That's why I asked you about the AT&T contract. [00:24:26] Speaker 01: Did the jury get that? [00:24:30] Speaker 03: I'm not aware, Your Honor, Judge Wallach. [00:24:32] Speaker 03: Sorry, I didn't try this case. [00:24:33] Speaker 03: I don't know how they got the contract. [00:24:34] Speaker 03: I tried the other three cases in Delaware. [00:24:36] Speaker 03: I didn't try this case. [00:24:38] Speaker 03: If I might, in my remaining time, just a word or two on a couple of the other issues. [00:24:41] Speaker 03: If there are no more questions on damages, Judge Chen, do you have? [00:24:45] Speaker 04: Let's talk about phase shift amounts. [00:24:47] Speaker 04: Yeah, sure. [00:24:48] Speaker 04: I would think a mathematician or an engineer would think phase shift amount could encompass zero. [00:25:00] Speaker 03: well but the jury the jury which found non-infringement were I don't think they were all engineers I'll just speculate they were not all engineers the claim construction that they were given and TQ Delta is not challenging the claim construction here so the claim construction computing the amount by which a phase shift is adjusted for each carrier signal and [00:25:25] Speaker 03: Dr. Mattisetti, their expert, showed a table from the standard, 1270, which showed at least two carriers not adjusted at all. [00:25:37] Speaker 03: And I do want to be clear about separate from the subcarrier zero, right? [00:25:41] Speaker 03: So yes, so one of them is the DC carrier zero. [00:25:45] Speaker 03: The DC carrier zero. [00:25:47] Speaker 03: And TQ Delta argues in their brief, without any support in the record, that the DC carrier, it doesn't make sense from a physics perspective. [00:25:55] Speaker 03: I think they said it can't be rotated. [00:25:57] Speaker 04: Well, what they're saying is it has nothing to do with the [00:26:01] Speaker 04: modulation of the bitstream. [00:26:03] Speaker 03: That's what they say. [00:26:04] Speaker 03: But there's another carrier, though, in table 1270 that the jury saw and that Dr. Mattis said he was cross-examined on when the pseudorandom number generator spits out 00. [00:26:17] Speaker 03: That's one of the possibilities. [00:26:19] Speaker 03: The table that the jury saw says you don't rotate that carrier. [00:26:23] Speaker 03: And under the claim construction they got, which is not challenged on appeal, that requires an adjustment for each carrier signal, that's enough evidence for the jury to have concluded not every one of the carriers that actually carries data bits [00:26:40] Speaker 03: gets shifted. [00:26:42] Speaker 03: And the court, Judge Gilstrap, denied their JMAAL on this. [00:26:49] Speaker 03: I think it was also a motion for a new trial. [00:26:51] Speaker 03: And he made reference to the skillful cross-examination of counsel, because as you know from the briefs, one of the arguments T.Q. [00:26:57] Speaker 03: Delta makes is that, well, Comscope didn't put on an expert. [00:27:00] Speaker 03: So they're basically saying the jury had to believe Dr. Mattesetti. [00:27:04] Speaker 03: That's not the law, of course. [00:27:05] Speaker 03: And Judge Gilstrap pointed to, [00:27:08] Speaker 03: I think Mr. Scott Stevens did the cross-examination. [00:27:12] Speaker 03: It's in the record. [00:27:13] Speaker 03: And it was skillful. [00:27:14] Speaker 03: He used the clock on the wall in the courtroom to demonstrate a phase shift of 90 degrees, 180 degrees, and zero degrees. [00:27:24] Speaker 03: And he walked Dr. Mattisetti through all that. [00:27:26] Speaker 03: And he obviously persuaded the jury that one of the data-carrying carriers does not get shifted. [00:27:32] Speaker 03: Lastly, I think I only have a few seconds left on the 835 patent, which was found invalid. [00:27:41] Speaker 03: This one, yeah, the flag signal. [00:27:50] Speaker 03: There's overwhelming evidence of invalidity. [00:27:51] Speaker 03: The jury found invalidity. [00:27:53] Speaker 03: TQ Delta primarily says, well, G992.1 can't be a flag signal because there's message data. [00:28:01] Speaker 03: Five judges. [00:28:02] Speaker 03: Obviously, none of them on this court yet. [00:28:05] Speaker 03: Five judges have assessed this claim construction issue for flag signal. [00:28:10] Speaker 03: Judge Andrews in Delaware, Judge Gilstrap independently in a lengthy claim construction order, and three PTEP judges. [00:28:16] Speaker 03: And each of them have come to the same conclusion. [00:28:19] Speaker 03: The construction that is in the record for flag signal neatly distinguishes between the two embodiments. [00:28:26] Speaker 03: And under that construction, the jury properly found the patent invalid. [00:28:30] Speaker 03: The jury verdict is a general verdict. [00:28:32] Speaker 00: Thank you, counsel. [00:28:33] Speaker 00: As you can see, the signal in front of you is red. [00:28:35] Speaker 03: Thank you. [00:28:36] Speaker 03: There are two alternative grounds on which the jury could have found invalidity. [00:28:40] Speaker 03: And T.Q. [00:28:41] Speaker 03: Delta focused mainly on just one. [00:28:43] Speaker 03: Thank you. [00:28:46] Speaker 00: Mr. Lampkin has some rebuttal time. [00:28:50] Speaker 02: Thank you, because you saved me that for me. [00:28:53] Speaker 02: If I could begin with the stipulation. [00:28:56] Speaker 02: This is judged according to the text of the stipulation itself. [00:28:59] Speaker 02: The Supreme Court has said so when you're looking at stipulations. [00:29:01] Speaker 02: There's a case called Brax, and it says you look at the stipulation itself. [00:29:04] Speaker 02: And it's not a question of whether the district court had a reasonable construction. [00:29:07] Speaker 02: It is, what is the right construction? [00:29:09] Speaker 02: And the stipulation, as Judge Chen pointed out, is unqualified. [00:29:12] Speaker 02: It says over and over again, these are SEP patents. [00:29:16] Speaker 02: And I know that my colleague here has said defer to the district court because there was an off-the-record charge conference. [00:29:23] Speaker 02: Well, first, you can't look at an off-the-record event [00:29:26] Speaker 02: unless you have a reconstruction hearing, and we'd welcome that if you wanted to have a reconstruction hearing. [00:29:30] Speaker 02: But the fifth circuit law says you can't look at it because it is off the record. [00:29:33] Speaker 02: What you look at is you look at the text itself. [00:29:35] Speaker 02: But even if you were to look beyond that, the fact that there were proposals beforehand that said things like, hey, [00:29:41] Speaker 02: It's up to you, the jury, to decide whether it's standard essential. [00:29:44] Speaker 02: The court is not instructing you whether or not this is standard essential. [00:29:47] Speaker 02: Those all disappeared. [00:29:49] Speaker 02: And what was left, what was left was clear language saying the parties have stipulated that this is standard essential. [00:29:55] Speaker 02: And these other ones aren't standard essential. [00:29:57] Speaker 04: Are you saying we shouldn't be looking at context or structure of [00:30:01] Speaker 04: the overall set of jury instructions in verdict form? [00:30:04] Speaker 02: I think that the court can look at that context, but that context is absolutely clear. [00:30:09] Speaker 02: Because right up front, at the very beginning, before you get to damages, before you get framed, before you do anything, there's a stipulation that says, here's what you've stipulated to. [00:30:16] Speaker 02: And this is 6204, line 17. [00:30:18] Speaker 02: And it says the S008 patent and others are, quote, subject to commitments with the ITU and are referred to as standard essential patents, or SEPs. [00:30:27] Speaker 02: And then it gives a contradistinction. [00:30:28] Speaker 02: The 048 and 411 are not standard essential patents. [00:30:32] Speaker 02: One set is standard essential. [00:30:34] Speaker 02: One set isn't. [00:30:35] Speaker 02: No qualifications, no conditions, no purpose. [00:30:38] Speaker 04: This is TQ Delta's conception of what these patents are. [00:30:43] Speaker 04: They would like to believe these patents are SCP patents, and that's why they made this commitment to this SSO. [00:30:50] Speaker 04: And then these other patents are not SCP patents. [00:30:55] Speaker 04: TQ Delta's understanding of all of this? [00:30:58] Speaker 02: No, I don't think you've read that way, because this is the part you stipulated. [00:31:01] Speaker 02: It doesn't say it's TQ Delta's conception of it. [00:31:05] Speaker 02: And in fact, it's simply not the case that if it isn't an SCP, you would continue to have an eye. [00:31:10] Speaker 02: There's no commitment to the ITU for FRAND if it doesn't actually turn out to be an SCP. [00:31:14] Speaker 02: There's evidence on the record for it. [00:31:15] Speaker 02: You could look at the ITU requirements. [00:31:19] Speaker 02: And the commitment itself is there. [00:31:20] Speaker 02: If it's not actually an SCP, it's not subject to FRAN. [00:31:23] Speaker 02: And so when the court says it is stipulated SCP, it's not saying that we ourselves think it's a SCP. [00:31:28] Speaker 04: The jury is not bound by what some international SSO says about whether a patent is an SCP patent. [00:31:34] Speaker 02: No, but it is bound by the stipulation in the instruction given by the district court judge, which is completely unconditional. [00:31:41] Speaker 02: Council says that they denied infringement, of course. [00:31:44] Speaker 02: They still had not admitted at that point in time that they practiced the standard. [00:31:48] Speaker 02: We would have to show both that was standard essential, that got stipulated, and that they practiced the standard, which is why until closing, when they conceded they practiced the standard, the issue was still in dispute, even though they had no evidence on their side. [00:32:00] Speaker 02: Turning very quickly to the cross-examination on zero amount, I have six seconds. [00:32:08] Speaker 00: We'll give you a minute because we gave you a poem. [00:32:10] Speaker 02: Oh, thank you very much. [00:32:12] Speaker 02: It can't be right. [00:32:13] Speaker 02: It's not possible to read the patent or the stipulation to mean that every shift, and we're not going to have a single carrier. [00:32:21] Speaker 02: This is a formula for all the carriers, would have to be in a non-zero amount. [00:32:25] Speaker 02: First, the very fact that we say non-zero amount tells us that the amount can be zero. [00:32:30] Speaker 02: Non-zero amount means there's something this amount that's a zero. [00:32:32] Speaker 04: But the construction is the amount of the phase shift by which the phase characteristic is adjusted. [00:32:39] Speaker 04: Right. [00:32:39] Speaker 04: Kind of baked in is this expectation there's going to be some kind of adjustment to the phase shift of every carrier signal such that, you know, we're scrambling each of their phase characteristics. [00:32:51] Speaker 04: Right. [00:32:51] Speaker 02: And zero implies no shift, correct? [00:32:54] Speaker 02: It's for the standard and the patent itself. [00:32:58] Speaker 02: Both sometimes refer to that as a no shift. [00:33:00] Speaker 02: But remember, every single equation in the patent will produce a zero shift. [00:33:04] Speaker 02: You would be excluding every single embodiment. [00:33:06] Speaker 02: The patent itself represents the jury. [00:33:08] Speaker 02: It wasn't presented to the jury, but this is a construction that if they'd asked for it, it would have been rejected as wrong under the patent. [00:33:14] Speaker 02: And I don't think you can say the jury's decision is sufficient based on something that couldn't have been adopted, couldn't been accepted as construction, and in fact was rejected by the very Delaware District Court that my co-counsel points to. [00:33:26] Speaker 02: But I think Judge Chen, your point about context is very important here, because this is a patent that talks about computing the amount, combining that amount, [00:33:35] Speaker 02: to adjust the things by varying amounts. [00:33:38] Speaker 02: So if I had recipe for a cake for sampling, and I directed the baker to compute the amount of baking soda add, [00:33:45] Speaker 02: And in order to storebot mix, in order to adjust the leavening by varying amounts, it might say add zero for a half box, add one teaspoon for a full box. [00:33:54] Speaker 02: No one will look at that instruction and say, oh my god, it's incoherent. [00:33:56] Speaker 02: It says adjust by varying amounts. [00:33:58] Speaker 02: And one of my amounts is zero. [00:33:59] Speaker 02: That's exactly what this patent does and exactly what the standard does. [00:34:02] Speaker 00: I think we've evened up the time. [00:34:04] Speaker 00: Thank you so much. [00:34:05] Speaker 00: I appreciate the indulgence, Judge Laurie. [00:34:06] Speaker 00: Thank you again. [00:34:07] Speaker 00: Thank you for your argument. [00:34:08] Speaker 00: The case is submitted.