[00:00:00] Speaker 00: Our first case for argument today is 24-1772, VLSI Technologies versus Intel. [00:00:07] Speaker 00: Mr. Walker, please proceed. [00:00:15] Speaker 01: Chief Judge Moore, and may it please the court. [00:00:18] Speaker 01: The 836 patented issue here claims both methods and apparatuses developed by engineers at Freescale Semiconductor that can speed up processor performance by running single core tasks on the fastest core. [00:00:30] Speaker 01: I want to talk about three issues today. [00:00:32] Speaker 01: First, the U.S. [00:00:33] Speaker 01: Nexus as to both the method and apparatus claims. [00:00:36] Speaker 01: The second, the claim construction that read in upon identifying limitation into apparatus claim 10, and the exclusion of VLSI's damages theories. [00:00:45] Speaker 01: The reversal is warranted on each of those. [00:00:48] Speaker 01: Starting with the US Nexus. [00:00:50] Speaker 01: There is no US Nexus problem because Intel expressly stipulated to the requisite US Nexus. [00:00:57] Speaker 01: The parties stipulated that of the total global number of Intel products and associated activities [00:01:03] Speaker 01: that are determined without regard to geographic considerations to meet the technical requirements of any asserted claim that 70 percent of them will be deemed to have a United States nexus as required by each subsection of 35 U.S.C. [00:01:19] Speaker 01: Section 271, the provision that defines infringement as making, using, selling, offering for sale, and importing the patented invention in the United States. [00:01:29] Speaker 01: There's no dispute. [00:01:31] Speaker 02: I know you have a textual grammatical argument for why the stipulation should be read the way you prefer it to be read. [00:01:39] Speaker 02: But I do realize that the district court below thought it would be a peculiar thing for Intel to give up its territoriality defense for infringement purposes [00:01:58] Speaker 02: And I'm sure if I ask Intel's counsel, they would say, there's no earthly reason why we would ever do that. [00:02:06] Speaker 02: That's absurd. [00:02:07] Speaker 02: So the only person I can ask this question then is you. [00:02:10] Speaker 02: Why would Intel give up its territoriality defense for infringement purposes? [00:02:18] Speaker 01: in order to streamline the case. [00:02:20] Speaker 02: I understand that, but this could easily, stipulations like this typically go more towards a damages question, not so much an infringement question. [00:02:31] Speaker 02: So could you give me a little bit more other than administrative convenience? [00:02:36] Speaker 01: Sure, sure. [00:02:36] Speaker 01: And while I think it's important to remember that this was early in the case, there were eight assertive patents, not just the 836 that we're arguing about now. [00:02:44] Speaker 01: And there were scores of accused products. [00:02:47] Speaker 01: If you go into all the submodels, probably hundreds of them. [00:02:50] Speaker 01: Some of those products might have had close to 100% U.S. [00:02:52] Speaker 01: nexus. [00:02:53] Speaker 01: They were all sold in the United States. [00:02:55] Speaker 01: Others might have had a lot less. [00:02:57] Speaker 01: But parsing through all of that in discovery for all the products, all the patents at issue, that could have been overwhelming. [00:03:03] Speaker 01: So Intel decided to compromise. [00:03:05] Speaker 01: It wasn't, you know, it says it's going to be 70% U.S. [00:03:08] Speaker 01: nexus for any products or activities that meet the claim limitations. [00:03:11] Speaker 01: Sometimes that might overstate. [00:03:13] Speaker 01: what the US Nexus was, but for others it was going to understate it. [00:03:17] Speaker 01: And Intel decided that it was better to avoid the time, expense, and burden of going through that in discovery and later at trial. [00:03:27] Speaker 02: disclose its territoriality defense for purposes of the 836 patent and the ATE tester being located offshore. [00:03:40] Speaker 01: I don't know at that point if they had gone into the specifics of that. [00:03:43] Speaker 01: They had raised the issue that they may challenge U.S. [00:03:47] Speaker 01: Nexus, and I think it's actually helpful to look at the Hirsch letter. [00:03:50] Speaker 01: that Intel cites. [00:03:52] Speaker 01: This is at Appendix 8230. [00:03:53] Speaker 01: Now, this is about six and a half months before they actually signed the stipulation. [00:03:58] Speaker 01: Is it email? [00:03:58] Speaker 01: I think it's a letter that might have been sent by email. [00:04:02] Speaker 01: But it is showing raising issues about where things are being made, shipped, and sold. [00:04:11] Speaker 01: Those words actually track Section 270, what it means to in French, make, use, sell in the United States, import. [00:04:17] Speaker 01: And it actually flags. [00:04:19] Speaker 01: This is at the top of 8230. [00:04:21] Speaker 01: It says that there are some products that are only shipped through the United States. [00:04:29] Speaker 01: And it says those aren't U.S. [00:04:30] Speaker 01: sales. [00:04:30] Speaker 01: But you know what? [00:04:31] Speaker 01: We'd be willing to stipulate that they have a U.S. [00:04:33] Speaker 01: nexus. [00:04:34] Speaker 01: If you don't stipulate, we're going to fight you on that. [00:04:36] Speaker 01: But we would be willing to stipulate. [00:04:37] Speaker 01: So I think that shows that early on, Intel showed a willingness to stipulate to US Nexus for products that it thought that it would have been able to defeat US Nexus had it gone all the way to trial. [00:04:51] Speaker 00: Just as a matter of big picture law, this is what I'll refer to as a kind of parole evidence. [00:05:00] Speaker 00: When we're looking at the stipulation itself, if we perceive the language of the stipulation to be clear on its face, we don't necessarily need to turn to and contend with [00:05:12] Speaker 00: the back-and-forth correspondence that led up to the stipulation. [00:05:16] Speaker 00: I think that's right. [00:05:16] Speaker 01: I think it is clear on its face. [00:05:18] Speaker 01: It says for purposes of Section 271. [00:05:21] Speaker 00: I'm not asking you whether you think it's clear on the face. [00:05:23] Speaker 00: I'm asking you a legal question. [00:05:24] Speaker 01: Yes. [00:05:25] Speaker 00: And the legal question is if the court concludes [00:05:29] Speaker 00: the language of a contract, which is what this is, is clear on its face. [00:05:33] Speaker 00: Under what circumstances should the court turn to extrinsic evidence outside the boundary of the contract to try to understand the terms of the contract? [00:05:42] Speaker 01: So here, I think if it is clear, you go to the four forms of the contract. [00:05:46] Speaker 01: I agree with that. [00:05:47] Speaker 01: I'm just pointing to the letter because Intel has pointed to it. [00:05:50] Speaker 01: And I think it actually helps to neutralize the argument that there's no chance that they would have agreed to this kind of stipulation. [00:05:56] Speaker 01: And that letter also says nothing about damages. [00:05:59] Speaker 01: The word damages doesn't appear in it. [00:06:01] Speaker 01: It does use the word infringement. [00:06:02] Speaker 01: It's talking about sites cases like Halo and Deep South that are about the US Nexus that's needed for infringement. [00:06:08] Speaker 01: So if you were to look at it, I don't think you need to go there because the stipulation itself is clear. [00:06:12] Speaker 01: But I think that letter reinforces that this is something that Intel reasonably could have thought it was a good idea at the time. [00:06:19] Speaker 03: What is our senior review on this extraterritoriality question? [00:06:22] Speaker 01: It's de novo. [00:06:25] Speaker 01: a grant of summary judgment, which is de novo, and an interpretation of a contract, which is legal questions. [00:06:29] Speaker 03: But the appellant's position encourages this court to take a draconian view on something that could just simply be sloppy draftsmanship. [00:06:38] Speaker 03: Why should we do that? [00:06:39] Speaker 01: Well, I think the court may have faced similar kinds of arguments in Kearns versus Chrysler. [00:06:45] Speaker 01: Chrysler was trying to escape what it thought were draconian consequences of the stipulation it had entered into. [00:06:53] Speaker 01: And this court says, no, the public policy here is enforcing contractual obligations, and especially enforcing litigation stipulations. [00:07:00] Speaker 01: They streamlined litigation. [00:07:02] Speaker 01: And if you let parties out of their stipulations, despite their clear terms, just because that seems, in hindsight, unfair, or that a multi-billion dollar company wouldn't make that kind of step, again, I think the reason is that it wouldn't. [00:07:16] Speaker 01: But Kern says courts can't let parties out of their agreements that way. [00:07:20] Speaker 01: It would interfere with the orderly administrative administration of justice. [00:07:23] Speaker 03: And to the chief judge's point, [00:07:26] Speaker 03: We're dealing with basic principles of contract law. [00:07:29] Speaker 03: So if there is such a material dispute as to the meaning and intent and application of this, do we have an actual stipulation? [00:07:37] Speaker 03: Is there a sufficient meeting of the minds on this point? [00:07:39] Speaker 01: I think the words there are very clear. [00:07:42] Speaker 01: They're crystal clear. [00:07:43] Speaker 01: There's been no meeting of the minds defense that has been raised to enforce the stipulation. [00:07:47] Speaker 01: We all agree it should be enforced. [00:07:49] Speaker 01: The fight is only over what it says. [00:07:51] Speaker 01: We think it's clear that it is reaching the question of infringement under Section 271. [00:07:55] Speaker 00: Let me just ask you a couple of housekeeping questions. [00:07:59] Speaker 00: I mean, when we interpret contracts, I understand the law suggests that you could sometimes interpret the contract against the drafter. [00:08:09] Speaker 00: Was Intel represented by counsel? [00:08:12] Speaker 00: Was there counsel involved when the stipulation was drafted? [00:08:15] Speaker 01: I am not sure. [00:08:16] Speaker 01: My understanding is that... You're not sure if Intel was represented by counsel? [00:08:20] Speaker 01: I am not sure precisely who negotiated it, but my understanding is that litigation counsel were certainly involved in the drafting and agreeing to this. [00:08:28] Speaker 02: Yeah. [00:08:28] Speaker 02: Moritz, both sides signed the stipulation. [00:08:30] Speaker 01: Yes. [00:08:30] Speaker 01: These are sophisticated parties, and I think if you're saying that your stipulates are the nexus required by 271, you're stipulating to the nexus needed for it to prove infringement. [00:08:38] Speaker 00: But you probably could have answered this question by just pointing out that their council signed stipulation. [00:08:44] Speaker 01: Oh, OK. [00:08:45] Speaker 01: Thank you. [00:08:46] Speaker 01: Yes, I agree the council signed it. [00:08:48] Speaker 01: And I think that's one more reason to enforce it by its plain terms. [00:08:54] Speaker 01: I'd be happy to talk more about the stipulation. [00:08:56] Speaker 01: But I can also say that with respect to the apparatus claims, there's a US nexus even if you don't look at the stipulation. [00:09:02] Speaker 01: And that is because apparatus claims are infringed so long as the patented invention something that satisfies every claim limitation is Sold offered for sale or imported in the United States into the role and nature of the ATT tester when it comes to performing the measuring stuff, right [00:09:22] Speaker 02: Yes, Intel has tried to make it about that. [00:09:24] Speaker 02: And so as far as I could see, that issue wasn't really ventilated below in front of the district court. [00:09:33] Speaker 02: In other words, I don't know to what extent the parties really briefed, to what extent is the circuitry inside Intel's cores [00:09:46] Speaker 02: actually capable of doing the functionality of the measurement step. [00:09:50] Speaker 02: And therefore, the ATE tester is really doing nothing more than activating the circuitry inside the core versus the ATE tester actually having a much more meaningful role in doing some kind of programming of those P-BIST circuits inside the cores. [00:10:10] Speaker 02: That would therefore then make the ATE tester look like it's [00:10:15] Speaker 02: I don't know, at the minimum part of the measurement circuitry. [00:10:21] Speaker 02: Yeah. [00:10:21] Speaker 01: So that is just a pure infringement question, setting aside extra territoriality. [00:10:25] Speaker 01: And the only infringement question the district court addressed dealt with the upon identifying limitation it had read into the claims. [00:10:33] Speaker 01: And so I believe Intel did not make any argument that standing alone, setting aside the location where things happen, that there wasn't infringement with respect to the performance measuring circuit. [00:10:44] Speaker 01: And this is summary judgment. [00:10:45] Speaker 01: All we had to do was provide evidence that a jury could find that that happened. [00:10:49] Speaker 01: Our expert, this is appendix 6247, paragraph 339, paragraph 344, paragraph 493 in our expert's report. [00:11:02] Speaker 01: I think these are all things that sufficiently show that he provided evidence that a jury could credit and say, the circuitry is in there. [00:11:10] Speaker 01: The structure is in there. [00:11:12] Speaker 00: Can I ask a housekeeping question? [00:11:14] Speaker 00: If we agree with you on the stipulation, is there any reason that this court needs to address this question regarding the apparatus claims? [00:11:26] Speaker 01: prudent [00:11:45] Speaker 01: because the ATA tester is apart from it, then that would govern presumably how the case goes. [00:11:52] Speaker 00: Well, if the ATA tester is apart from it, but it's outside the US, then doesn't the extraterritoriality stipulation cover that question? [00:12:04] Speaker 02: I am happy to agree that it would if Intel... But the problem is that what you accused of infringement is the core, the multi-core system of Intel. [00:12:16] Speaker 02: You didn't accuse the ATE tester in combination with those cores. [00:12:21] Speaker 01: Yes. [00:12:21] Speaker 02: And therefore if the ATE tester really does play a meaningful role, [00:12:26] Speaker 02: in the performance of the measurement step. [00:12:28] Speaker 02: And therefore, you didn't accuse the right thing by failing to accuse a combination of the Intel cores with the ATE tester. [00:12:38] Speaker 02: That's the theory. [00:12:39] Speaker 01: That is the theory that we're hearing from Intel here on appeal. [00:12:42] Speaker 01: And I think the answer is that claims are directed to the core. [00:12:46] Speaker 01: There is evidence from which a jury could find that it has the required circuit. [00:12:51] Speaker 01: And there is nothing that would require a jury to find at the summary judgment stage [00:12:55] Speaker 01: that the ATA tester was anything more significant than something that activates or executes it, like the operating system in silicon graphics, like the base stations on the INVT, or like the unlocking key in Vingen. [00:13:06] Speaker 00: Now, we're running low on time, and I'd like you to move to the prosecution history, a sample disclaimer argument, please, and the three statements. [00:13:13] Speaker 00: The one I want you to focus on is the one on 11.06, the CEG one. [00:13:22] Speaker 00: This is the claim 10 argument. [00:13:26] Speaker 01: Yeah, so that is the only one that says upon identifying none of the rest do. [00:13:29] Speaker 01: And I think, so this is not distinguishing any prior art. [00:13:32] Speaker 01: This is just a general overview of what is disclosed and claimed in the specification. [00:13:38] Speaker 02: Do you think that's a requirement for there to be prosecution disclaimer? [00:13:42] Speaker 02: I think if, for example, an applicant said, [00:13:47] Speaker 02: My claim is directed to this. [00:13:50] Speaker 02: My claim requires x. And x isn't literally in the claim. [00:13:55] Speaker 02: And at the same time, when the applicant says that to the examiner on record, the applicant isn't actually, at that point in time, distinguishing priority, but is just saying something in a very definitive and clear way. [00:14:12] Speaker 02: My claim requires x. You're saying that that [00:14:17] Speaker 02: wouldn't amount to prosecution disclaiming? [00:14:19] Speaker 01: I think it would have to be clear and unmistakable that they were surrendering claim scope. [00:14:24] Speaker 01: And here, the order of operations that the upon identifying limitation signifies was something that was never addressed. [00:14:32] Speaker 01: They never said, yes, this order of operations has to be. [00:14:36] Speaker 01: And I don't think that this sentence is- Right. [00:14:38] Speaker 02: I'm just trying to test what sounded like a proposition to you that any prosecution statement made by an applicant that isn't specifically distinguishing prior art necessarily cannot be prosecuted. [00:14:49] Speaker 01: I don't think that's absolutely true, but fair and mistakeable is the standard, and that's going to be even harder when it's just a general statement about what is in the specification and not trying to distinguish prior art, especially [00:14:59] Speaker 01: when upon identifying was never invoked to distinguish prior art and not an issue that anyone was fighting about. [00:15:07] Speaker 02: So what do you think is going on here with this statement that is tying all of the independent claims to a description of the claims that, among other things, talks about upon identifying a single core-only task [00:15:24] Speaker 01: So I think it's talking about an exemplary embodiment and how we actually know that that sentence is not reporting to cover the full scope of claim ten in particular is because it says selecting the the fastest for [00:15:40] Speaker 01: And claim 10 does not require that it be the fastest. [00:15:43] Speaker 01: It says it can have a minimized or a maximized parameter. [00:15:47] Speaker 01: And so claim 10, by its plain terms, is a little bit broader than that. [00:15:52] Speaker 01: Right. [00:15:52] Speaker 02: So if you're saying if we were to really restrict claim 10 to the words of this statement at 11.06, we would have to be crossing out words in claim 10. [00:16:02] Speaker 01: I think that. [00:16:04] Speaker 01: performance parameter. [00:16:05] Speaker 01: I think that's right and there's no reason to read that into it. [00:16:08] Speaker 00: I'm just going to extrapolate from that and say therefore is your argument also that claim ten absolutely includes but does not require identifying a single core like it absolutely includes both just in the same way that it includes the fastest [00:16:25] Speaker 01: Yes. [00:16:26] Speaker 01: Yes. [00:16:26] Speaker 01: This describes what it includes. [00:16:28] Speaker 01: It does not try to limit it only to that. [00:16:31] Speaker 01: It doesn't say anything about what it excludes. [00:16:33] Speaker 00: Can you now touch upon damages? [00:16:34] Speaker 00: I'm going to extend your time a little bit, and I'll extend the other side's time to balance out the whole thing. [00:16:38] Speaker 00: But I'd like you, if you don't mind, now to move and touch upon damages. [00:16:42] Speaker 01: Yeah. [00:16:42] Speaker 01: Thank you, Your Honor. [00:16:44] Speaker 01: I think Judge Alsop, in the Master Objects case, put it well when he said that the local patent rule three does not require identification of every evidentiary system of proof. [00:16:52] Speaker 01: The point is, are you giving reasonable notice of what the damages theory is going to end up being? [00:16:58] Speaker 02: You review this for abuse of discretion, right? [00:17:00] Speaker 01: It is reviewed for abuse of discretion. [00:17:02] Speaker 01: But I do think that if the court was ratcheting up the legal standard that this rule requires, a legal error is an abuse of discretion. [00:17:10] Speaker 01: I think master objects, I think this is what litigants in the Northern District of California are going to understand the rule to require and not require. [00:17:16] Speaker 01: In master objects, there was a disclosure that we're going to do a per-unit royalty. [00:17:20] Speaker 02: Do you think citations in a very, very long string site is good enough to provide adequate notice? [00:17:27] Speaker 01: I think if we're describing what the methodology is and then the factual support appears, sometimes it's going to be in string sites because there may be hundreds of documents that are being cited. [00:17:36] Speaker 01: Here, there were hundreds of thousands of documents that were produced. [00:17:40] Speaker 01: And so if there's a lot of documents that are relevant to that, it's [00:17:43] Speaker 01: unavoidable that you're going to have really long citations. [00:17:46] Speaker 03: But isn't the point of the local rule to avoid that burying the notice in a string site as opposed to simply stating it? [00:17:54] Speaker 01: So I think we did state it. [00:17:55] Speaker 01: We said we were going to value based damages on the value of the technological and economic benefits of the invention to Intel, and that we were going to rely on Intel's own internal evaluations for that. [00:18:08] Speaker 01: These citations were two documents from Intel that supported that. [00:18:13] Speaker 01: We cited and quoted an email that provided, you know, it was a round number, but it provided one of those valuations that Intel was relying on by McGurk. [00:18:27] Speaker 01: And then later we cite, by name, the McGlobeck deposition, where he admits that he authored a presentation. [00:18:33] Speaker 01: And then the next sentence, we cite the presentation that he authored that has the 335 number. [00:18:37] Speaker 01: So we have other damages theories that were not excluded, right? [00:18:40] Speaker 01: Yeah, there's a comparable license theory that was not excluded. [00:18:43] Speaker 00: Let me actually tease this out a little bit. [00:18:46] Speaker 00: And just somebody wave hands in the air. [00:18:49] Speaker 00: If I say anything confidential, I don't think I'm going to. [00:18:52] Speaker 00: But I respect that parties have designated some portions of this confidential. [00:18:56] Speaker 00: There are two different damages theories that were excluded one is the MVP and PV theory and the other is the VPU theory I am I Personally see a difference. [00:19:08] Speaker 00: I'm not sure the outcome is different, but I don't see how you're in Contentions gave any hint that the NPV theory was going to be proffered I don't see that it does anything at all except list [00:19:26] Speaker 00: a particular number that I think is confidential in a long string site about recently produced data illustrating Intel's testing. [00:19:37] Speaker 00: I don't see how that's sufficient to put them on notice of your intent to proffer an NPV theory of damages. [00:19:44] Speaker 00: Now, this is distinct from the VPU theory. [00:19:47] Speaker 00: So tell me why it is that you think that quite limited disclosure on your part that never mentions the theory itself suffices, and why it was an abuse of discretion for the district court to exclude that portion, as opposed to the other portion. [00:20:03] Speaker 01: So NPV theory is maybe a little bit of an overstatement. [00:20:06] Speaker 01: Our theory was we're going to base it on Intel's own valuations of the value of the technology to it. [00:20:12] Speaker 01: And NPV, net present value, is actually Intel's internal term. [00:20:17] Speaker 01: And what we did is we cited and quoted the email that provided that confidential but round number that is roughly approximate to the 345 million number that our expert ultimately used. [00:20:30] Speaker 01: And so that's on 2203. [00:20:32] Speaker 01: And then the pages that are coming after are explaining, here's the documents that we have to support that. [00:20:38] Speaker 01: And they include the presentation that details where that round number mentioned in the email ultimately comes from. [00:20:49] Speaker 01: We said McGowick sent this email that has this round number that we're talking about. [00:20:53] Speaker 01: And a few pages later, we're citing his deposition that says he offered a presentation [00:20:58] Speaker 01: and then we start the presentation itself. [00:21:00] Speaker 00: But I don't see how you tailored. [00:21:02] Speaker 00: I mean, I feel like you have a single quote on 2203. [00:21:07] Speaker 00: but it doesn't feel very tailored to what the methodology is going to be that the expert is going to use to articulate the damages theory. [00:21:16] Speaker 01: So I think it says we're going to rely on what Intel has valued and quotes one of those valuations. [00:21:22] Speaker 01: It's a little bit more of an estimate, but it leads you directly to the exact number that our expert ended up relying on. [00:21:28] Speaker 02: Is that what it says at 22.03? [00:21:29] Speaker 02: We're going to rely on Intel's valuation? [00:21:36] Speaker 01: Yeah. [00:21:38] Speaker 01: Yeah, so at the top of that page, the first full paragraph, that it provides significant benefits reflected in Intel's marketing materials. [00:21:47] Speaker 01: And then it has at line 10 is the, or 9 through 10 is the email with the quote. [00:21:55] Speaker 01: And that's by Mr. McGavick. [00:21:59] Speaker 01: And then if you go to [00:22:03] Speaker 01: Just seven pages later, the McGabbock deposition is cited at 2210 at line 16. [00:22:12] Speaker 01: Same guy who sent that email that has that big number that we have just flagged as Intel's valuation of this. [00:22:20] Speaker 01: Right. [00:22:20] Speaker 01: He explains, I. That's inside a parenthetical, the round number. [00:22:25] Speaker 01: The quote is inside a parenthetical, but I think it's [00:22:32] Speaker 01: It is still pretty prominent. [00:22:33] Speaker 01: I think if you've got all the lawyers at Intel have reading these documents, I think they're going to notice it. [00:22:40] Speaker 01: And then we've also pointed to the deposition says, I made this presentation that actually shows what the modeling was. [00:22:46] Speaker 01: And the presentation is cited in the immediately following sentence. [00:22:49] Speaker 00: OK. [00:22:50] Speaker 00: We'll save a little bit of time for rebuttal, but let's hear from opposing counsel. [00:22:54] Speaker 01: Thank you. [00:23:06] Speaker 04: May it please the court, Dominic Massa for Intel. [00:23:10] Speaker 04: If I could start with the apparatus claims and address Judge Chen's question. [00:23:15] Speaker 00: Before you start with the apparatus claims, answer my housekeeping question, which is, do we even reach that issue if we agree with them on the stipulation? [00:23:25] Speaker 04: Yes, Your Honor. [00:23:25] Speaker 04: Because as Judge Chen pointed out, the theory of infringement for the apparatus claims is that the chips, the device, as sold [00:23:37] Speaker 04: would infringe, not the chip plus the tester. [00:23:40] Speaker 04: So we're not talking about potential damages flowing from a use or a piece of equipment or a combination made overseas. [00:23:48] Speaker 02: Well, you might have that infringement or non-infringement defense. [00:23:52] Speaker 02: It's not so clear to me that that particular non-infringement defense was actually ventilated below in your summary judgment motion. [00:23:59] Speaker 02: It seemed to really be geared towards this territoriality question. [00:24:05] Speaker 02: Obviously, there's some language in Judge Freeman's opinion that could be read to also bake in this capability. [00:24:12] Speaker 02: But I don't know if we really have any analysis on that score as to what is the role of the tester, other than the fact that it has one. [00:24:22] Speaker 02: But if it's a really limited role, then it actually might not count in terms of whether or not [00:24:29] Speaker 02: the PBIST inside the chip is reasonably capable of performing the measurement step. [00:24:35] Speaker 04: It's a substantial role, Your Honor, and it was ventilated. [00:24:38] Speaker 04: And at the appendix 7631, you'll see in the oral argument, Judge Freeman says, so looking at the substantive argument, which Intel has briefed. [00:24:50] Speaker 00: I'm not interested in what Judge Freeman may have brought up. [00:24:54] Speaker 00: I'm interested in where in your summary judgment brief [00:24:57] Speaker 00: you made this argument. [00:24:59] Speaker 00: Because if you didn't make the argument in your brief, it doesn't put the opposing counsel on notice. [00:25:04] Speaker 00: The fact that Judge Freeman may have brought this up in the hearing is great, but that doesn't really give them notice to respond to it. [00:25:09] Speaker 00: So where in your brief did you ventilate this issue? [00:25:13] Speaker 04: We did brief it, Your Honor, and it's addressed in Judge Freeman's opinion at Appendix 29. [00:25:19] Speaker 04: Right. [00:25:20] Speaker 02: And we're trying to look at your summary judgment motion, 6197. [00:25:31] Speaker 02: I don't really see anything there that says, we're going to tell you a story about the ATE tester. [00:25:39] Speaker 02: We're going to tell you about how it's the master of the performance of the measurement stuff. [00:25:47] Speaker 02: And it has to do some kind of programming of the PBIST inside of our Intel chips. [00:25:56] Speaker 02: And only in that way are those PBIST chips able to [00:26:01] Speaker 02: do the measurement stuff. [00:26:02] Speaker 02: I don't see anything like that for 6197. [00:26:04] Speaker 04: And 6197, we address the issue that there was no evidence presented by Dr. Conte. [00:26:11] Speaker 04: We address this issue. [00:26:12] Speaker 04: We asked Dr. Conte at his deposition, and that's why we cite to it on 6197. [00:26:18] Speaker 04: We asked him, can the accused products, the chips themselves, perform this testing? [00:26:26] Speaker 04: And he unequivocally said he offered no opinion on that. [00:26:31] Speaker 04: And that's his deposition at 8088 in the record. [00:26:35] Speaker 04: We asked him, are you saying it's the device, just the tester, or just the device? [00:26:41] Speaker 02: In our case law, we have examples like ThinGen. [00:26:44] Speaker 02: The software there could not perform the claimed functionality unless it was unlocked and it needed a key. [00:26:51] Speaker 02: And we said the addition of a key doesn't change the analysis that software infringes. [00:26:57] Speaker 02: Same thing with silicon graphics, I think. [00:27:00] Speaker 02: You said that accused product couldn't infringe without an operating system executing the functionality. [00:27:09] Speaker 02: And you said the operating system isn't really affecting the fact that the accused product is capable of doing it. [00:27:16] Speaker 02: It just needs a little bit of an operating activation. [00:27:21] Speaker 02: And so that could be the same thing. [00:27:22] Speaker 02: We don't know, because the judge below [00:27:25] Speaker 02: never was confronted with the issue and so never addressed it as to whether or not the tester is really nothing more than an activation component. [00:27:33] Speaker 04: We do know. [00:27:34] Speaker 04: So Judge Freeman addressed the evidence to find whether there's sufficient evidence for this question to go to the jury. [00:27:40] Speaker 04: On the one hand, you have the deposition testimony of Intel engineers saying, we used the tester to actually measure voltage. [00:27:47] Speaker 04: The tester, not the chip. [00:27:49] Speaker 04: It's a measurement limitation. [00:27:50] Speaker 04: And the undisputed evidence, and this is at 8141 and 8149, is that on the one hand, Intel engineers saying the tester does the measurement. [00:28:01] Speaker 02: What does the tester mean? [00:28:02] Speaker 02: I mean, I don't know why that necessarily conforms with the actual claims or forms of measuring [00:28:13] Speaker 02: which core is the fastest. [00:28:14] Speaker 04: That was Dr. Conti's infringement opinion, was that by measuring the voltage across some circuit in the chip, that from that you could determine which of the cores were the fastest. [00:28:24] Speaker 04: And that was his theory. [00:28:26] Speaker 04: And his theory was only the combination of the accused products plus the ATE tester. [00:28:32] Speaker 04: And we asked him, are you saying just the accused products themselves? [00:28:36] Speaker 04: He said he has no opinion. [00:28:37] Speaker 04: That would be hypothetical. [00:28:39] Speaker 04: He hadn't even considered it. [00:28:40] Speaker 04: Again, an 8-0 [00:28:41] Speaker 04: 88. [00:28:42] Speaker 04: That was the evidence on VLSI's side. [00:28:45] Speaker 04: On Intel's side, the evidence was uncontroverted, undisputed testimony of Intel engineers saying that the tester does the voltage measurement. [00:28:54] Speaker 04: There's not a measurement coming from anything on the CPU. [00:28:57] Speaker 04: That's the accused product. [00:28:59] Speaker 04: And that's at 8149. [00:29:01] Speaker 04: And again, at 8195, we say we need this [00:29:04] Speaker 04: tester to program what's inside the chip in order to tell it what to do. [00:29:11] Speaker 04: That is distinguishable from Fingin and silicon graphics. [00:29:15] Speaker 04: Fingin, it was undisputed that everything needed to meet the claim was inside that software, and all we needed was a key. [00:29:22] Speaker 02: Can we move to the stipulation? [00:29:25] Speaker 04: Sure. [00:29:26] Speaker 02: On the stipulation, Your Honor, there – I'll be honest. [00:29:29] Speaker 02: If I just read it, you know, in a vacuum, [00:29:34] Speaker 02: read the way your opposing counsel would read it. [00:29:38] Speaker 04: And Your Honor, there's no need to read it in a vacuum. [00:29:41] Speaker 04: So the stipulation itself has whereas clauses, which describe the context in which it arises. [00:29:48] Speaker 04: The wherein clauses specifically refer to the letters between Mr. Hirsch and Ms. [00:29:53] Speaker 04: Proctor. [00:29:54] Speaker 04: This letter, which is in the record, describes [00:30:03] Speaker 04: What is happening here? [00:30:04] Speaker 04: These are members of each party's damages team. [00:30:07] Speaker 04: They are talking about damages-related documents that were produced that are spreadsheets with millions of lines. [00:30:13] Speaker 00: Council, your stipulation says nexus required by each subsection of 271. [00:30:21] Speaker 00: That has nothing to do with damages. [00:30:23] Speaker 00: 271 is nothing but infringement, and you say, [00:30:26] Speaker 00: we will deem the US nexus as required by each subsection of 271. [00:30:32] Speaker 00: Now, maybe if that's all you said, I would think, well, they said 271, but they really meant 284. [00:30:37] Speaker 00: But you said and for determining patent damages. [00:30:41] Speaker 00: So you separately addressed infringement. [00:30:44] Speaker 00: And you separately addressed damages. [00:30:47] Speaker 00: And you made it crystal clear that this stipulation applies to both. [00:30:52] Speaker 00: And you didn't even just use the word infringement. [00:30:54] Speaker 00: You used the word infringement. [00:30:55] Speaker 00: And you quoted the section of the statute that only has to do with infringement. [00:31:00] Speaker 00: And you say, and every subsection thereof. [00:31:04] Speaker 04: And the stipulation only applies. [00:31:05] Speaker 04: What were you thinking? [00:31:06] Speaker 04: The stipulation only applies. [00:31:08] Speaker 00: Did you draft this? [00:31:09] Speaker 04: I didn't personally, Your Honor, know. [00:31:10] Speaker 00: Was your firm involved in this? [00:31:12] Speaker 04: Yes, we were, Your Honor, and we stand by it. [00:31:14] Speaker 04: The stipulation only applies when there's a determination of infringement, when the technical requirements of infringement are met. [00:31:22] Speaker 04: Without regard to geographic considerations. [00:31:25] Speaker 00: Bingo. [00:31:25] Speaker 04: The total global number of sales is without regard to geographic location because... That's not what you wrote. [00:31:32] Speaker 00: Not even close. [00:31:33] Speaker 00: Your view of this is truly unreasonable. [00:31:37] Speaker 00: Unreasonable. [00:31:38] Speaker 04: The OSI's view of this was considered absurd by the district court judge who was closest to this. [00:31:44] Speaker 04: And Your Honor has characterized this as, should we enforce a contract, particularly when it's a stipulation [00:31:50] Speaker 04: of something in the litigation. [00:31:52] Speaker 04: The district court judge poses to this litigation, knowing how these stipulations came about, thought VLSI's argument was absurd. [00:32:00] Speaker 04: The stipulation itself says three times, this is no admission of infringement. [00:32:05] Speaker 00: Correct. [00:32:05] Speaker 00: The other aspects of infringement. [00:32:07] Speaker 00: But it is an issue of infringement with regard to territoriality. [00:32:13] Speaker 00: That is the only thing this addresses, territoriality. [00:32:15] Speaker 04: The only thing this was used for, you can see in Dr. Sullivan's report, is he takes the global number of sales and multiplies it by the nexus number. [00:32:24] Speaker 04: It's just to take 0.7, 70%, and multiplies it. [00:32:28] Speaker 00: Isn't it possible that you all decide to stipulate to this for exactly the reason that Mr. Walker explained at the time the stipulation was entered into? [00:32:37] Speaker 00: There were eight patents at issue. [00:32:40] Speaker 00: hundreds of products at issue, some undisputedly wholly performed aspects in the US, some that didn't. [00:32:49] Speaker 00: To be frank, how am I supposed to look behind the litigation strategy? [00:32:54] Speaker 00: It may well have made a lot of sense to Intel to not want to have to give you tens of millions of dollars to deal with all the discovery that would need to happen for that, and much easier for them to say, we'll just agree to 70%. [00:33:07] Speaker 00: on the infringement and damages because whether I'm paying them the 70% or I'm paying you tens of millions of dollars to litigate eight patents and hundreds of products product by product on these extraterritoriality claims I mean I don't really generally look behind [00:33:23] Speaker 00: stipulations like this when they're so clear on their face because I'm smart enough to know that I can't understand what was going on in the party's heads when they were doing their cost-benefit calculation over who they want to give money to. [00:33:37] Speaker 00: Lawyers who are going to charge them tens of millions of dollars in attorney's fees versus the patentee. [00:33:44] Speaker 00: And so that, I read the stipulation on its face and assumed Intel was a rational actor, well represented by good counsel, and this was the calculated decision they made. [00:33:55] Speaker 04: Respectfully, Your Honor, there's $5 billion in damages claimed at the time this was entered into. [00:34:00] Speaker 04: It wasn't to save some dollars in the lawyers' hands. [00:34:04] Speaker 00: 70% of $5 billion is a lot better than 100% of $5 billion. [00:34:07] Speaker 04: Of course, Your Honor. [00:34:09] Speaker 04: This, VSI would have you read this as an unmistakable and clear waiver of an ironclad non-infringement defense. [00:34:17] Speaker 04: Ironclad non-infringement defense. [00:34:18] Speaker 00: It's undisputed that there's... An ironclad in hindsight! [00:34:21] Speaker 00: You didn't have all the discovery. [00:34:23] Speaker 00: None of the discovery had taken place to make it crystal clear that there was or was not extraterritoriality, and the case wasn't reduced to just these patents and just these products at that point in time. [00:34:35] Speaker 00: So, I mean, ironclad and hindsight is a wonderful thing for an infringer in patent cases. [00:34:42] Speaker 04: Undisputed that we never perform this method in the United States. [00:34:45] Speaker 04: Undisputed that all of Intel's testing occurs overseas. [00:34:49] Speaker 02: Intel knew that. [00:34:50] Speaker 02: By January 2019, the date of the stipulation, did you already disclose your infringement defense that, well, we do our testing of the measurement step outside of the country? [00:35:05] Speaker 04: I don't believe that there's a record site for that, Your Honor. [00:35:08] Speaker 04: But there were at the time. [00:35:09] Speaker 04: The case had been stayed for IPRs. [00:35:11] Speaker 02: But the stipulation was trying to cover a whole bunch of patents, not just the 836. [00:35:16] Speaker 04: Some of them had dropped off by that point in time. [00:35:18] Speaker 04: But yes, more than just the 836. [00:35:20] Speaker 04: And for claims where there's a method that is performed by an end user customer, and there's an argument that occurs in the United States, and we might be liable for inducement, then that's met. [00:35:34] Speaker 02: The big hang-up I'm having, or one big hang-up, is the word and. [00:35:39] Speaker 02: And you heard the chief stress that word inside the stipulation. [00:35:45] Speaker 02: What is being deemed as having a US nexus is for purposes of 7271 and for determining patent infringement damages. [00:36:01] Speaker 02: It feels like there's two different separate thoughts that are operating here and and not just one mushed together concept that's Damages exclusively the reason that 271 is referred to as you can see in why is the end there? [00:36:17] Speaker 02: That loudest that and how do I get? [00:36:20] Speaker 02: How do I write an opinion that says, well, don't worry about the and? [00:36:24] Speaker 02: Because all of this sentence, whatever is going on here, is just for the last clause for determining any patent infringement damages. [00:36:33] Speaker 04: The and is there is because there were multiple theories put forward by VLSI under various sections of 271. [00:36:39] Speaker 04: There was inducement. [00:36:40] Speaker 04: There's direct infringement. [00:36:41] Speaker 04: There's perhaps they even claim supplying components for manufacturer overseas under 271-F. [00:36:48] Speaker 04: So it is a [00:36:50] Speaker 04: Blanket a reference to of all the different ways in which you may be asserting Infringement not just limiting it because the halo case of things instructive halo you had no damages no infringement for direct infringement because again It was quite similar to here was undisputed that certain activity only occurred exclusively outside the United States but there was a finding of infringement for inducement because [00:37:14] Speaker 04: You can have, in this global commerce, you can have a stream of products put out there with various activity that goes to, you know, a sales contract. [00:37:24] Speaker 04: Where does the sales contract negotiate? [00:37:25] Speaker 04: And things of that nature. [00:37:26] Speaker 02: If it has to go back, you would still have other infringement defenses. [00:37:29] Speaker 04: Absolutely, Your Honor. [00:37:30] Speaker 04: This, we don't admit that we ever perform the method, let alone that we perform it overseas. [00:37:36] Speaker 04: We say we perform the testing, but that we certainly don't dispute the, we certainly don't deny. [00:37:41] Speaker 04: Or that your chips ever do any [00:37:44] Speaker 02: identification of a single corps. [00:37:46] Speaker 04: Right. [00:37:46] Speaker 04: We never identify the fastest corps at a period. [00:37:50] Speaker 04: So there are non-affringement defenses, which certainly would survive a remand, your honor. [00:37:57] Speaker 04: But again, the stipulation [00:38:02] Speaker 04: would be absurd under the reading of VLSI. [00:38:05] Speaker 04: The stipulation says three times there is no admission of infringement and that the technical requirements of infringement must be met. [00:38:13] Speaker 02: For this claim. [00:38:14] Speaker 02: Can we talk about the prosecution statements? [00:38:16] Speaker 02: I know you want to talk more about the stipulation, but we're running out of time. [00:38:20] Speaker 04: Thank you, Your Honor. [00:38:23] Speaker 04: The patentee argued these claims together. [00:38:25] Speaker 04: And they argued claim 1, 10, and 20 together. [00:38:28] Speaker 04: And they made the statements. [00:38:30] Speaker 04: that they made in the context of a prior art rejection, and they said that all of the claims were prior. [00:38:39] Speaker 02: Is it fair to say that this statement of JA 1106 was not made in the context of distinguishing prior art references? [00:38:49] Speaker 02: The statement is made in the context of distinguishing the Kim reference and it says well, I I see the statements being made at JA 1107 as distinguishing Kim and maybe Bernstein too, but the 1106 statement seems really to be more introductory statement or a general summary statement of the whole the whole section there is section B is an argument about trying to get over an obviousness rejection over Kim and [00:39:18] Speaker 04: That's the section in which 1106 and 1107 both address. [00:39:23] Speaker 02: Let's assume for the moment that 1106 is the general introductory summary of what the claims are directed to. [00:39:32] Speaker 02: And 1107 is really where the action is occurring in terms of distinguishing the claims over the prior art references. [00:39:40] Speaker 02: Are you aware of any precedential opinion that says, [00:39:45] Speaker 02: A general summary description of what the claims are directed to can suffice for prosecution disclaimer. [00:39:55] Speaker 02: I tried to look for one. [00:39:56] Speaker 02: I couldn't find one. [00:39:57] Speaker 04: I don't have one in mind, Your Honor. [00:39:58] Speaker 04: But Judge Freeman found this to be clear and unmistakable disclaimer. [00:40:03] Speaker 04: And I think there's some action also at 1324. [00:40:07] Speaker 04: This is an examiner-initiated interview and the summary of that. [00:40:11] Speaker 04: And it said, it was agreed. [00:40:13] Speaker 04: to amend independent claims 1, 10, and 20 to clarify that a core is selected from the plurality of cores when it is identified that a task cannot be run across the plurality of cores. [00:40:28] Speaker 04: Again, this is an agreement between the applicants and the examiner. [00:40:32] Speaker 04: This is what prosecution history, this is what disclaimer is based on. [00:40:37] Speaker 04: The agreement between the applicant and the patent office, the agreement between the applicant [00:40:42] Speaker 04: and the public of what their claims is limited to. [00:40:45] Speaker 04: And they agreed, and that's the reason they got this patent, is that they clarified for the examiner, both there and in 1106 and 1107, that what happens here is identify a task as being a single court task and then selecting a court to run in it. [00:41:04] Speaker 04: And in 1107, when they address Kim, they say that Kim doesn't have this [00:41:10] Speaker 04: identifying much less of assigning such single core tasks to the fastest core. [00:41:17] Speaker 04: Also as a matter of logic and of grammar, you don't assign a single core task to a core unless you know it's a single core task. [00:41:27] Speaker 04: Their reading would read out single core tasks and just say, if I happen to assign any task to a core, and by happenstance later it turns out to be a single core task, I've somehow met this claim. [00:41:39] Speaker 04: It's not the case. [00:41:39] Speaker 04: You don't have a single core task to assign unless you've identified it as a single core task. [00:41:49] Speaker 00: Could I ask you, unless anyone has more questions on this, to move to the damages? [00:41:53] Speaker 00: Do you have more questions on this? [00:41:54] Speaker 03: not on this, I've got to circle back, but let's go to the next. [00:41:58] Speaker 00: OK, can I ask you to move to the damages, please? [00:42:00] Speaker 04: Certainly, Your Honor. [00:42:01] Speaker 04: So the circumstance here is important. [00:42:05] Speaker 04: We had [00:42:06] Speaker 04: moved to compel more definite statements according to VLSI's failure to meet the local rule. [00:42:15] Speaker 04: And the court had found that VLSI's initial statements had failed to meet the local rule. [00:42:21] Speaker 04: This is purely a matter of discretion for the district court in [00:42:25] Speaker 04: implementing the local rules of her district as well as her order compelling the LSI for not only provide the documents but an explanation of why. [00:42:35] Speaker 03: Counsel explain to me the leak from if there was a an order compelling this disclosure how the exclusion came about the exclusion of the experts opinions on these two issues. [00:42:44] Speaker 04: So what happened was there was an initial set of damages contentions. [00:42:50] Speaker 04: We moved to compel on those. [00:42:52] Speaker 04: Court granted that. [00:42:53] Speaker 04: There were then five additional supplementations over a period of five years, never disclosing this theory and how these documents would relate [00:43:04] Speaker 04: to this theory. [00:43:05] Speaker 04: As one of your honors pointed out, there is a seven page string site, which I think by happenstance just happens to include one of the documents that their expert now wants to rely on, Mr. Sullivan. [00:43:19] Speaker 04: But that was never explained to Intel. [00:43:22] Speaker 04: If it had been, [00:43:23] Speaker 04: Then discovery could have been taken of the author of that document. [00:43:26] Speaker 04: Discovery could have been taken of the recipient of that document. [00:43:29] Speaker 04: And that's why Intel would have been prejudiced by, in effect, burying that site in a site amongst hundreds of documents. [00:43:38] Speaker 04: And again, this is the district court enforcing her district's rules as well as her order [00:43:46] Speaker 03: To compel a more definite statement not just a laundry list of documents an explanation of how those documents support the theory Let me ask this question if VLSI prevails on any of the other two issues in this case is remanded in some form or fashion Should we affirm the exclusion order still? [00:44:07] Speaker 04: Yes, your honor. [00:44:07] Speaker 04: I mean I think [00:44:09] Speaker 04: The first two issues should get rid of the appeal. [00:44:11] Speaker 04: We shouldn't reach claim construction or the damages. [00:44:13] Speaker 04: But yes, if you were to remand, then you can affirm this order. [00:44:18] Speaker 04: VLSI has other damages theories. [00:44:21] Speaker 04: And the district court can deal with how those theories could be dealt with in a remand case. [00:44:27] Speaker 03: Even if different segments or parts of the case are basically subject to a reset button? [00:44:33] Speaker 03: Yes, this is a separate issue. [00:44:37] Speaker 03: Chief Judge, can I circle back real quick? [00:44:39] Speaker 03: You mentioned logic and grammar, counsel, and I'm in the same spot as Judge Chen. [00:44:44] Speaker 03: I have a very difficult time avoiding the word and in the stipulation. [00:44:49] Speaker 03: And why this court should blue pencil that now with the benefit of hindsight, as the Chief Judge mentioned, that Intel has realized what [00:45:00] Speaker 03: the plain language that stipulation may suggest. [00:45:02] Speaker 03: Why should we do that? [00:45:04] Speaker 04: We're not asking the court to blue pencil that end. [00:45:06] Speaker 04: But what this court would need to do in order to give VLSI's argument credit would have to blue pencil the places where it says three times that this is no admission of infringement, where it says that the technical requirements of infringement need to be met before this stipulation even kicks in. [00:45:25] Speaker 04: The technical requirements of infringement include performance of a method in the United States. [00:45:31] Speaker 04: There's no infringement unless a method is performed in the United States. [00:45:35] Speaker 04: If the method were performed in the United States, like perhaps other claims of other patents that may be infringed by a customer by performing a method, then you take the global number of sales and you multiply it by 0.7. [00:45:47] Speaker 04: All the stipulation is doing is providing that 0.7 number versus 0.6 [00:45:53] Speaker 04: It only kicks in after determination of infringement. [00:45:58] Speaker 04: And you'd have to ignore the rest of the stipulation where it says repeatedly, this is no admission of infringement, and it's still the OSI's burden to prove infringement. [00:46:07] Speaker 04: At least one instance, a use in the United States of a method, an apparatus in the United States that's capable of performing testing. [00:46:16] Speaker 04: And there's no evidence on either of those. [00:46:20] Speaker 04: Thank you. [00:46:22] Speaker 00: Okay. [00:46:22] Speaker 00: Thank you. [00:46:22] Speaker 00: Thank you. [00:46:24] Speaker 00: Mr. Walker. [00:46:25] Speaker 00: Thank you. [00:46:34] Speaker 01: I don't want to belabor the stipulation. [00:46:36] Speaker 00: I'd like you to jump to 1324. [00:46:40] Speaker 00: 1324 is the examiner interview, because that is not something that I think that you addressed in the blue brief or the gray brief. [00:46:50] Speaker 00: And he brought it up in oral argument. [00:46:52] Speaker 00: I think it was in the gray brief very briefly, but I'd like you to address what, if any, impact the examiner's summary of the interview has on the question of whether you gave up in the CEG site a timing concept. [00:47:09] Speaker 01: Yeah, so I think as a first matter, it would be very, very hard to find something that the examiner said to be a clear and unmistakable surrender of claim scope by the applicant, especially when the point at issue upon identifying order of operations was not anything that had to do with the rejections or the amendments that came out of it. [00:47:30] Speaker 01: I cannot find the site right now. [00:47:32] Speaker 01: I believe the district court rejected reliance on that for exactly that reason. [00:47:37] Speaker 01: I don't believe it appears in the argument section of Intel's brief. [00:47:41] Speaker 01: So I don't think that some loose language is going to be helpful. [00:47:45] Speaker 01: And when can just mean at the same time? [00:47:46] Speaker 01: So it doesn't itself require a strict order of operations, a earlier DLSI versus Intel case [00:47:53] Speaker 01: says that when can include at the same time as. [00:47:57] Speaker 01: So that's substantially simultaneous with. [00:48:00] Speaker 01: So I think for that reason, too, the word when is not going to be a disclaimer that doesn't otherwise exist. [00:48:10] Speaker 01: On the stipulation, it also says no admission about damages. [00:48:15] Speaker 01: So how could it do anything with damages, which is Intel's position. [00:48:18] Speaker 01: I think that shows the no admission language is very limited and just says it's not admitting anything beyond the US Nexus. [00:48:28] Speaker 01: They say they had an ironclad non-infringement defense based on extraterritoriality. [00:48:33] Speaker 01: They certainly didn't with respect to the apparatus claims, which are still highly disputed. [00:48:37] Speaker 01: We certainly think that we have the better of that, at least on summary judgment. [00:48:40] Speaker 00: Just to be clear, this stipulation would only give you 70% for apparatus claims, even though there is no extraterritoriality potential argument on the apparatus claims, right? [00:48:52] Speaker 01: I mean, they may have sold some outside of the United States. [00:48:55] Speaker 01: I don't know what the sales might be. [00:48:57] Speaker 01: But if it were 100%, we would be giving up that 30%, certainly, under the stipulation. [00:49:01] Speaker 01: We gave up potential upside as well. [00:49:04] Speaker 01: On the apparatus claims, the only basis for Intel's summary judgment of non-infringement was the extraterritoriality ground. [00:49:12] Speaker 01: If you look at their motion, 61. [00:49:13] Speaker 00: So does that mean you do not perceive the district court judge as having separately concluded on this capability of? [00:49:21] Speaker 00: issue. [00:49:22] Speaker 01: I do not view her as addressing. [00:49:25] Speaker 01: Did she cite INVT? [00:49:27] Speaker 01: I believe she did cite INVT, but it has to be reasonably capable. [00:49:31] Speaker 01: And then she added the extraterritoriality aspect of it in the United States. [00:49:36] Speaker 01: I think that was the error is adding the territoriality of the functionality into an INVT type analysis. [00:49:45] Speaker 00: So that's still potentially a live argument to be decided by her on remand. [00:49:50] Speaker 01: I don't think it was ever presented to her on summary judgment. [00:49:53] Speaker 01: Intel says only that we can't show it's capable in the United States. [00:49:57] Speaker 01: That was 6197, line 18. [00:50:00] Speaker 01: That's their summary judgment motion. [00:50:02] Speaker 01: So I think it was only extraterritoriality and that they have not presented a standalone non-infringement argument. [00:50:10] Speaker 00: And I imagine if we concluded it was presented, you'd say there is a genuine dispute of fact because you had expert testimony contradicting it, right? [00:50:18] Speaker 01: Yes, and they certainly did not present evidence that compels a finding that the tester is more significant than the operating system in Silicon Graphics. [00:50:28] Speaker 01: It's like what our expert said about that. [00:50:30] Speaker 01: Imagine the expert in Silicon Graphics. [00:50:31] Speaker 01: Can it rasterize if it's not connected to an operating system? [00:50:35] Speaker 01: I haven't looked at that, probably not. [00:50:37] Speaker 01: It's still a route of infringement. [00:50:38] Speaker 01: The court was clear the fact that you need the operating system in order for it to function doesn't take it out of infringing by itself. [00:50:44] Speaker 01: It's the same deal here. [00:50:46] Speaker 00: Anything further? [00:50:48] Speaker 01: Unless the court has further questions, we'd ask that the court reverse. [00:50:53] Speaker 00: OK. [00:50:53] Speaker 00: I want to thank both counsel for argument. [00:50:55] Speaker 00: And I just want to say I understand, Mr. Walker. [00:50:59] Speaker 00: You parachuted in at the last minute. [00:51:01] Speaker 00: And for purposes of your client, sometimes a more junior attorney who was probably heavily involved is often a better choice. [00:51:11] Speaker 01: Thank you, Your Honor.