[00:00:00] Speaker 03:
The next case is number 14, 1552, Action Star Enterprise Company against Kai Jet Technologies International, Mr. Dragset.

[00:00:11] Speaker 00:
Good morning, Your Honors.

[00:00:12] Speaker 00:
May it please the Court?

[00:00:14] Speaker 00:
Barring questions from the panel, which I expect I want to focus today on the merits issues, but I'm happy to answer any questions.

[00:00:20] Speaker 00:
In particular, the merits issue actually dealt with by the District Court, and then I will move, if we have time, on to the merits issues, the alternative grounds for me.

[00:00:29] Speaker 00:
So on the merits issue that actually dealt with by the district court, I think the issue is pretty straightforward.

[00:00:34] Speaker 00:
The question is, could a reasonable fact finder conclude that at least one person followed the instructions that Kai Jet provided and used the product in the way that it was set up to be used?

[00:00:48] Speaker 00:
And I think the logical answer to that is, of course, at least one person would have done that.

[00:00:53] Speaker 00:
In fact, I think the opposite conclusion

[00:00:56] Speaker 00:
is less reasonable, that nobody use this mode of the product.

[00:01:01] Speaker 02:
Does that answer the question of whether direct infringement actually occurred?

[00:01:06] Speaker 00:
It provides enough circumstantial evidence under this court's case law to create a fact question on direct infringement.

[00:01:13] Speaker 02:
Can you prove direct infringement by circumstantial evidence?

[00:01:17] Speaker 00:
You can, yes.

[00:01:18] Speaker 00:
Well, you can prove the existence of someone who

[00:01:24] Speaker 00:
perform the direct infringement with circumstantial evidence.

[00:01:27] Speaker 00:
I think if there are disputes on particular limitations, which there weren't in their summary judgment motion, we can get to that.

[00:01:34] Speaker 00:
But that was not raised in their summary judgment motion.

[00:01:37] Speaker 02:
That you would have to point to.

[00:01:38] Speaker 02:
You're saying that circumstantial evidence can be used to show, for example, that somebody would have more likely than not followed the instructions.

[00:01:48] Speaker 02:
Yes.

[00:01:50] Speaker 02:
You're not showing that that actually happened, that the person actually pushed the button.

[00:01:54] Speaker 02:
There's that direct infringement.

[00:01:57] Speaker 00:
You do not have to show that a particular person actually pushed that button.

[00:02:01] Speaker 02:
Any person?

[00:02:02] Speaker 02:
You don't have to show that the button was pushed.

[00:02:07] Speaker 00:
You have to show that it was likely that someone out there pushed the button.

[00:02:10] Speaker 00:
You don't have to say, there's a guy named Bob who pushed the button.

[00:02:14] Speaker 02:
But if you don't know, if you're showing a likelihood that somebody may have,

[00:02:18] Speaker 02:
What you're really saying is that you're not showing that the button was actually pushed.

[00:02:25] Speaker 00:
You are showing that they instructed people to push the button and that they sold a product with the button that when pushed would do the act.

[00:02:32] Speaker 00:
And I think that's what you have in this court case law going all the way back to Moleculon, which is the first case that we have here.

[00:02:38] Speaker 00:
There was no evidence.

[00:02:40] Speaker 01:
Help me with the record on this.

[00:02:43] Speaker 01:
I thought that there was a motion

[00:02:48] Speaker 01:
for summary judgment filed by Kai Jet and on direct infringement.

[00:03:02] Speaker 01:
Is that not correct?

[00:03:05] Speaker 00:
On direct infringement?

[00:03:07] Speaker 00:
Generally, but not element by element.

[00:03:10] Speaker 01:
They did not raise the issue of any particular... But I thought when it was filed that Action Star dropped its

[00:03:18] Speaker 01:
cause of action for direct infringement.

[00:03:22] Speaker 00:
Am I wrong on that?

[00:03:24] Speaker 00:
We dropped for direct infringement by Kaijet.

[00:03:28] Speaker 00:
We did not drop the issue of whether their customers were direct infringers.

[00:03:34] Speaker 00:
So the case law, I think, you start with molecular and that's the Rubik's Cube case and it involved instructions on a particular way to solve your Rubik's Cube and if you've ever tried it, you know there's many ways to solve a Rubik's Cube.

[00:03:47] Speaker 00:
So there wasn't

[00:03:48] Speaker 00:
any evidence cited in that case of a particular person sitting down and following those instructions to solve the Rubik's Cube, to push the button, using your analogy.

[00:03:57] Speaker 00:
But there was still sufficient circumstantial evidence that it would have had, that at least one person had done it, that a fact finder could conclude that.

[00:04:06] Speaker 00:
We are on summary judgment here.

[00:04:07] Speaker 02:
I think that pushing the button is important, but that's not enough.

[00:04:10] Speaker 02:
In your case, going back to the discussion we had, you also have to show that the instructions map out infringement.

[00:04:18] Speaker 02:
Sure.

[00:04:20] Speaker 02:
Is that what happened here?

[00:04:21] Speaker 00:
Well, let me qualify that answer, okay?

[00:04:24] Speaker 00:
Because they did not identify any limitation that was missing in their summary judgment motion, okay?

[00:04:32] Speaker 00:
And so, we were not required to go and identify particular limitations.

[00:04:37] Speaker 00:
We were just required to put forward what we had said is the infringement, their instructions, and their product, and we did that.

[00:04:44] Speaker 00:
Now, I don't want you to think I'm hiding from

[00:04:47] Speaker 00:
the limitations because we did put forth evidence on the limitations also and I can go through, there's procedural problems on that for them because it wasn't in their summary judgment motion.

[00:04:58] Speaker 00:
They raised it in this supplemental briefing that you received a couple of days ago.

[00:05:02] Speaker 00:
That's not their motion and we had no opportunity to respond to that because that was the last brief.

[00:05:07] Speaker 00:
The briefs were filed simultaneously on that.

[00:05:10] Speaker 00:
Let me address the three points that they've raised that they say were not addressed by Mr. Chang.

[00:05:17] Speaker 00:
Number one is the claim limitation on initializing, I think it's the keyboard and the mouse.

[00:05:23] Speaker 00:
Now this court has said in Moleculon, for example, that experts are not required for proving infringement.

[00:05:29] Speaker 00:
Now since then in Coedo and other cases where it's complicated technology, perhaps you need an expert.

[00:05:35] Speaker 00:
But initializing the keyboard and the mouse, turning on the computer and plugging the cords in, I think a reasonable fact finder could conclude without the help of an expert or other testimony.

[00:05:47] Speaker 00:
that the product is suggesting that you turn on your computer before you use it.

[00:05:52] Speaker 00:
On the flip side, there's a limitation at the end of the claim that fittingly enough says and.

[00:06:00] Speaker 00:
And their complaint is, well, Mr. Chang said, well, this thing loops around waiting for you to move back and forth between the monitors.

[00:06:06] Speaker 02:
I appreciate your argument, but I think there's some fundamental issues in your case that we really need to get to.

[00:06:17] Speaker 02:
You claimed in the below that there's no direct infringement, or you asserted that there's no direct infringement, correct?

[00:06:24] Speaker 00:
I don't think we admitted there's no direct infringement.

[00:06:26] Speaker 00:
I think we admitted that we didn't have evidence of a direct infringer, which is the distinction between saying we can't point to somebody who did this, but we repeatedly pointed to their instructions, and we relied on the instructions.

[00:06:40] Speaker 02:
What's your evidence of direct infringement?

[00:06:43] Speaker 00:
It's their instructions and the Chang declaration are what we're relying on.

[00:06:47] Speaker 00:
Chang's saying he followed the instructions in using the product.

[00:06:53] Speaker 00:
And so it's circumstantial evidence.

[00:06:55] Speaker 00:
It's the same sort of evidence that was in Golden Blount, in Moleculon, and in Toshiba.

[00:07:01] Speaker 00:
Those were cases where you could not point to a person who then loosened another case.

[00:07:06] Speaker 02:
But there's no map, you know, the instructions to the claims, to the limitations of the claims.

[00:07:13] Speaker 00:
Two parts to that.

[00:07:14] Speaker 02:
They never... Basically you're saying we know, we saw somebody using a device, it looks like ours, and it seems to be doing what we do.

[00:07:22] Speaker 02:
That seems to be the strength of your argument.

[00:07:29] Speaker 02:
But it seems to me you conceded below that there's no direct infringement.

[00:07:35] Speaker 00:
I don't think we conceded.

[00:07:36] Speaker 00:
There's two points.

[00:07:37] Speaker 00:
We didn't concede at number one.

[00:07:38] Speaker 00:
They didn't raise the element by element issue in their summary judgment motion.

[00:07:42] Speaker 00:
They raised the issue, which is the only issue the court reached, was, well, you didn't point to somebody who actually did this.

[00:07:47] Speaker 00:
And I think they're not defending that on appeal.

[00:07:50] Speaker 00:
They're saying, well, they've shifted now to this element by element point.

[00:07:54] Speaker 00:
That's not in their summary judgment motion.

[00:07:56] Speaker 00:
That's number one.

[00:07:57] Speaker 00:
Did we put it in play?

[00:07:58] Speaker 02:
That's the law, too, right?

[00:07:59] Speaker 02:
I mean, to show infringement, you've got to show, in your case, that the instructions mapped out infringement, that they met the limits of the claim.

[00:08:09] Speaker 00:
Not if they don't put it into play in their summary judgment motion, though.

[00:08:12] Speaker 00:
On the merits, we have to do a limitation by limitation comparison.

[00:08:17] Speaker 00:
But for example, I'll give you a site here for, and it's actually in the district court's opinion, which I think is why the district court didn't reach this issue.

[00:08:29] Speaker 00:
This court says, in exigent technologies, the quote is,

[00:08:40] Speaker 00:
that the statement has to be that the patentee has no evidence of infringement, okay, that's the point you're making, and pointing to the specific ways in which accused systems did not meet the claim limitation.

[00:08:54] Speaker 00:
So they had to do two things.

[00:08:55] Speaker 00:
They had to say no infringement, and then they had to say what elements were missing, and that's what they didn't do in their summary judgment motion.

[00:09:02] Speaker 00:
All they raised in their summary judgment motion was that we hadn't pointed to a person.

[00:09:07] Speaker 00:
And our answer is, we don't have to point to that person.

[00:09:10] Speaker 00:
The case law, molecular law, and so on, allows circumstantial evidence on that.

[00:09:16] Speaker 00:
The other point about pointing to particular elements did not come into the case until the supplemental briefing.

[00:09:22] Speaker 00:
It was not in their motion.

[00:09:23] Speaker 00:
And in fact, on the elements, if you look at their summary judgment motion, and I will point you to

[00:09:39] Speaker 00:
Page 886 of the appendix.

[00:09:44] Speaker 00:
This is the background of their summary judgment motion, 886.

[00:09:52] Speaker 00:
Right in the middle, it says, kaijet dispute that such a use of the acute products would infringe either claim one or claim six because moving of the cursor involves moving the entire mouse and they get to the controlling A switch.

[00:10:09] Speaker 00:
argument.

[00:10:13] Speaker 00:
So on page 886 they say there's a dispute about one limitation, the controlling the switch limitation.

[00:10:21] Speaker 00:
They don't say there's no dispute, they don't say they should get summary judgment.

[00:10:25] Speaker 00:
Then we turn a couple of pages into their summary judgment motion, 894 through 897.

[00:10:35] Speaker 00:
They're not moving on that limitation

[00:10:38] Speaker 00:
or any other particular limitation of the claim in their summary judgment motion.

[00:10:43] Speaker 00:
Their issue that's on appeal is on page 897, or 896 really, in 897, and it's Fujifilm and Janssen and those cases, the point that we didn't point to a particular person.

[00:10:57] Speaker 00:
But what's important to understand is in their summary judgment motion, they did not identify any missing limitation.

[00:11:04] Speaker 00:
Now they did it in their supplemental briefing.

[00:11:07] Speaker 00:
And those were the three points that they claimed Mr. Cheng forgot to address.

[00:11:11] Speaker 00:
Initializing the components, which we say is turning them on.

[00:11:14] Speaker 00:
I think the instructions, fairly red, suggest to a person you have to turn your computer on before you can hook these wires up.

[00:11:21] Speaker 00:
Another one is that they raise the end limitation of the claim END.

[00:11:26] Speaker 00:
And I think a reasonable fact finder could conclude that you're going to stop using this at some point, turn off the computers, unplug them.

[00:11:34] Speaker 00:
And then the third one is,

[00:11:35] Speaker 00:
that the person has to make, I think the term is judging whether you need to switch from one monitor to the other.

[00:11:42] Speaker 00:
Their materials say this allows you to switch from one monitor to the other.

[00:11:48] Speaker 00:
I think a reasonable fact finder could conclude that before you switch from one monitor to the other, you make the mental step of judging that you should be on the other monitor rather than the first one.

[00:11:59] Speaker 00:
So these three things that Mr. Chang was missing are

[00:12:03] Speaker 00:
I don't like to use the word inherent, but they're really inherent parts of following their instructions.

[00:12:07] Speaker 00:
Of course, you have to turn on and turn off the computers.

[00:12:10] Speaker 00:
Of course, you're going to judge to move before you can move.

[00:12:14] Speaker 00:
And their documentation does tout the ability to move between the components.

[00:12:21] Speaker 00:
One point I think that is fairly an alternative route for affirmance, and the court doesn't need to reach it, we don't think the court should reach it, is their point about intent.

[00:12:32] Speaker 00:
But I think that's easily dealt with.

[00:12:34] Speaker 00:
Case law, you know, multiple of the cases that we cite, and I'll just point you to Fujitsu, 620 F3rd at 1332.

[00:12:43] Speaker 00:
Golden Blount, 438 F3rd at 1361 says, if you know about the patent and you're instructing people to infringe it, that is sufficient to put in play the fact question on intent.

[00:12:57] Speaker 00:
So the one question or the one issue that I think is a legitimate alternative ground for affirmance is easily dealt with by this court.

[00:13:04] Speaker 00:
The court doesn't have to reach it, but there is enough evidence here to put in play on the facts.

[00:13:10] Speaker 00:
But I think it's important that the court understand on all of these alternative grounds that the district court here ruled not on particular limitations missing, but only on the district court's view that we didn't point to a particular infringer.

[00:13:25] Speaker 00:
We think the case law clearly says we don't have to point to a particular infringer.

[00:13:31] Speaker 00:
We don't think this court needs to or should reach the alternative grounds, but if the court does look into them and actually looks at what happened below, that they'll see that Kaijet did not raise properly under Seletech in its summary judgment brief these issues, and so they're not properly in play on appeal.

[00:13:50] Speaker 03:
I'll reserve the rest of my time.

[00:14:01] Speaker 03:
Mr. Bradley.

[00:14:03] Speaker 04:
May it please the court.

[00:14:05] Speaker 04:
Invoking circumstantial evidence does not allow appellant to make unsupported leaks or unjustifiable inferences from evidence that was never proffered in the district court proceedings.

[00:14:20] Speaker 04:
The district court's judgment of non-infringement was correct, well-reasoned, and it should be affirmed because, quite simply, there never was any evidence presented

[00:14:29] Speaker 04:
that would show or from which it could be reasonably inferred that there was a tribal issue of fact, a material fact on the issue of induced infringement.

[00:14:37] Speaker 01:
Am I correct that the user manuals for Kaijet for the accused products instructed the end users to pick up, to pick the use mouse to move off the edge of the screen option over any of the other three?

[00:14:55] Speaker 04:
No, I don't believe that's correct, John.

[00:14:57] Speaker 04:
What the manual shows is that you can toggle between computers.

[00:15:01] Speaker 01:
Look at page 5 of your red brief at the bottom.

[00:15:17] Speaker 04:
Yeah, I apologize for that.

[00:15:19] Speaker 04:
That is a typo.

[00:15:19] Speaker 04:
That should be do not instruct.

[00:15:21] Speaker 04:
I believe that's corrected later on in the red brief.

[00:15:23] Speaker 04:
My apologies for the typo.

[00:15:25] Speaker 01:
In the later red brief?

[00:15:27] Speaker 01:
No, it says exactly the same thing in the later red brief.

[00:15:30] Speaker 04:
Correct.

[00:15:32] Speaker 04:
The later red brief we corrected the citation to the inadvertently omitted supplemental brief on summary judgment, which was incorrectly cited in the red brief.

[00:15:43] Speaker 04:
We did not catch this particular typo, but

[00:15:45] Speaker 01:
Well, let me ask you this then, because that's what this leads up to.

[00:15:48] Speaker 01:
How the heck did you justify $430,000 in attorney's fees in this case when it seems to me it was a slam dunk from the beginning?

[00:15:59] Speaker 04:
Well, Your Honor, the fees were incurred because the appellant did not do a number of things that would have narrowed the case in a justifiable way.

[00:16:08] Speaker 04:
So for instance,

[00:16:09] Speaker 01:
As I believe your honor pointed out, there was a claim of direct... I would think that, you know, if you're going to charge people that much money, you'd catch these kind of errors in your briefs.

[00:16:19] Speaker 04:
Noted, your honor.

[00:16:20] Speaker 01:
I mean, more than noted.

[00:16:21] Speaker 01:
I don't think this is justified.

[00:16:24] Speaker 04:
I sincerely apologize for that, your honor.

[00:16:26] Speaker 04:
But if your honor looks at the actual, if the court looks at the actual page of the appendix cited here, what they show is that the user manuals allow users to... I looked very closely.

[00:16:37] Speaker 01:
Of course it's what it showed.

[00:16:40] Speaker 01:
And because it's, of course, it's what it shows, and because I think you had a slam dunk case, I'm just shocked that the numbers you're charging.

[00:16:51] Speaker 04:
I understood, Your Honor.

[00:16:53] Speaker 04:
If Your Honor is asking about the rates of our firm, I don't know that we can really comment on that.

[00:17:00] Speaker 01:
Something for the district court, but the quality of your work as opposed to the amount you charge really disturbs me.

[00:17:10] Speaker 04:
My apologies, Your Honor.

[00:17:13] Speaker 04:
I want to address straight away the issue of waiver argued by appellants.

[00:17:17] Speaker 04:
There is no waiver of any argument that the appellant never actually matched up the claims of the methods in the patent, or each step in the method, with an actual use by anyone in the United States.

[00:17:32] Speaker 04:
First of all, that was their burden to do.

[00:17:34] Speaker 04:
That's how you show direct infringement of a method claim.

[00:17:36] Speaker 04:
And that's clear by the Supreme Court's decision in Lamelight Network.

[00:17:40] Speaker 04:
in this course, including in Joy Technologies, as well as Fujitsu and ACCO.

[00:17:47] Speaker 04:
So first of all, that was their burden.

[00:17:49] Speaker 04:
Second of all, because they admitted unequivocally that they had no evidence, direct or circumstantial, of anyone actually using the accused product to perform each of the claim methods that's in the order required by the claims, because they made those admissions, we didn't need to actually go and

[00:18:10] Speaker 04:
show why individual elements were missing.

[00:18:12] Speaker 04:
But more than that, we did.

[00:18:14] Speaker 04:
The pattern that counsel cited at page 886 of the record specifically put in play this issue that, no, they haven't shown that the controlling the switch disposed on the mouse limitation was actually met with using the accused products.

[00:18:28] Speaker 04:
And that is why the district court asked for something on briefing on this issue, which was provided.

[00:18:34] Speaker 04:
And therefore, all those arguments that are made on appeal here were preserved and argued below.

[00:18:38] Speaker 04:
So I don't think there's any merit to the waiver argument.

[00:18:42] Speaker 04:
But as I said, the single deposit is fact here is that at no point were the actual elements of the claims mashed up with any use by anyone in the United States.

[00:18:52] Speaker 04:
The user manuals don't do that.

[00:18:54] Speaker 04:
They emit critical claim steps such as judging whether a first computer host needs to be operated, judging whether a second computer host needs to be operated.

[00:19:04] Speaker 04:
If so, do you go to the step 2D of the claim?

[00:19:07] Speaker 04:
all of that is missing.

[00:19:09] Speaker 04:
The Chang declaration, the declaration of the inventor, doesn't get appellant there either.

[00:19:14] Speaker 04:
Not only is the declaration also missing important claim steps in what he just recites as his use of the accused products, that use occurred in Taiwan.

[00:19:24] Speaker 04:
So essentially, appellant is asking the court to infer that, one, Mr. Chang actually practiced all the claim steps, and two,

[00:19:33] Speaker 04:
that a user in the United States would have replicated Mr. Chang's, the inventor's, use in Taiwan.

[00:19:40] Speaker 04:
Those inferences are not supportable and they go straightly into speculation.

[00:19:48] Speaker 04:
None of the cases cited by appellants support their theory either.

[00:19:54] Speaker 04:
Moleculon, the Rubik's Cube case, there, this core is presented with very different evidence.

[00:19:59] Speaker 04:
First of all, there is only one infringing use of the accused product.

[00:20:04] Speaker 04:
There was only one use, and that use was established to be infringing.

[00:20:07] Speaker 04:
That hasn't happened here.

[00:20:09] Speaker 04:
Second, there were instruction sheets and solution booklets of how to solve the puzzles that actively describe the infringing use.

[00:20:18] Speaker 04:
And there was extensive puzzle sales.

[00:20:21] Speaker 04:
If the court looks in the record, there is no evidence of sales, much less extensive sales of the accused product.

[00:20:27] Speaker 04:
Of course, the reasoning there is, the more extensive the sales, the more permissible an inference that perhaps someone

[00:20:33] Speaker 04:
would have used the proxy infringing manner.

[00:20:35] Speaker 04:
We don't have that here.

[00:20:36] Speaker 04:
Likewise, in Golden Blount, this court was presented with very different evidence than here as well.

[00:20:43] Speaker 04:
There, too, the defendant's employees actually admitted that the defendant's secondary gas burner, when assembled, resulted in an infringing configuration of being below the primary burner.

[00:20:57] Speaker 04:
As well, defendants, in that case, outside pan counsels, testified to the same effect.

[00:21:03] Speaker 04:
And I believe the instruction materials provided with the product in that case actively described and showed that specific use.

[00:21:14] Speaker 04:
No other use was shown.

[00:21:15] Speaker 04:
Again, here, the appellant admits that three of the four uses of the accused product do not infringe.

[00:21:23] Speaker 04:
Even if you accept that they have shown that one use, the moving the cursor towards the end of the screen to accomplish toggling between computers,

[00:21:32] Speaker 04:
infringers, which again they haven't.

[00:21:34] Speaker 04:
But even if you assume that they have, what we have here is at the best that the accused's price are capable of infringing.

[00:21:42] Speaker 04:
And as this court has repeatedly held in Fujitsu and ACO and ETAS, that's not enough to show circumstantially or otherwise that someone practiced all of the claimed method steps in the required order in the United States.

[00:21:59] Speaker 04:
Something more is required.

[00:22:01] Speaker 04:
In Fujitsu, for example, this court found sufficient circumstantial evidence only for the accused product models where there were active customer service records that showed that the defendant was purposely telling customers and customer support communications, yes, please use this configuration, fragment these devices.

[00:22:22] Speaker 04:
None of that is present here.

[00:22:29] Speaker 04:
I see here the appellant has not pointed to the YouTube video printouts that were very much advanced in district court proceedings.

[00:22:42] Speaker 04:
But since it is raised in the paper, I do want to address it very briefly.

[00:22:45] Speaker 04:
The district court properly ruled that those were unauthenticated and hearsay.

[00:22:49] Speaker 04:
There's no evidence of who posted the videos, who created them, or even what they show.

[00:22:54] Speaker 04:
And there's been no showing in this appeal

[00:22:58] Speaker 04:
of any abuse or discretion by the district court on that issue.

[00:23:02] Speaker 04:
The point here is that the district court considered even all of this untimely evidence, all of this surprise evidence, which was proffered only in opposition to our motion or summary judgment.

[00:23:13] Speaker 04:
The district court gave the appellant every chance to save its claims and took the reasonable inferences from all immiscible evidence.

[00:23:20] Speaker 04:
And that still was not sufficient to show induced infringement.

[00:23:24] Speaker 04:
And that decision was correct.

[00:23:30] Speaker 04:
This case is, in our opinion, directly analogous to the court's decision in EPAS, which is 473, F3, 1213, where the court affirmed the summary judgment of non-infringement.

[00:23:42] Speaker 04:
Now in EPAS, the patentee relied solely on excerpts of user manuals of the accused product, which in that case were palm PDAs, personal data assistance, to show and induce infringement.

[00:23:56] Speaker 04:
And the court held that, unlike as in molecular,

[00:23:59] Speaker 04:
The evidence showed that, at best, the user manuals in EPAS showed that perhaps all of the claim limitations were present or disclosed in the user manual, but not in the order required by the claims.

[00:24:13] Speaker 04:
And so the court concluded that, quote, it requires too speculative a leap to conclude that any customer actually performed the claim method.

[00:24:25] Speaker 04:
That's at page 1223 of the opinion.

[00:24:27] Speaker 04:
And as Judge Wallach, I believe, inquired of counsel another case before ours, we do believe there is an inference that can be taken if a patentee tries to rely on circumstantial evidence but does not make any attempt to elicit direct evidence.

[00:24:43] Speaker 04:
And that's the case here.

[00:24:44] Speaker 04:
Appellant was a do-nothing plaintiff.

[00:24:47] Speaker 04:
It took no deposition.

[00:24:48] Speaker 04:
It issued no subpoena of any end user or anyone else to attempt to determine the use of the accused products, even though it admitted

[00:24:56] Speaker 04:
early on discovered that it had no such evidence?

[00:25:00] Speaker 04:
It did not tender a timely expert report?

[00:25:03] Speaker 02:
I was, I was, I focus on some of the things that you're saying when I went through the case.

[00:25:10] Speaker 02:
And what I found remarkable is that there was no discovery, limited argument, limited submissions, then dismissal summary judgment.

[00:25:23] Speaker 02:
And yet you had fees close to half a million dollars.

[00:25:29] Speaker 02:
And the judge reduced them on the fact that you had a block billing manner.

[00:25:33] Speaker 02:
What does that mean?

[00:25:34] Speaker 02:
You just said these are fees and you didn't separate them out by date or by the task that was completed?

[00:25:44] Speaker 04:
Not quite, Your Honor.

[00:25:45] Speaker 04:
The block billing complaint that the district court had was that for certain of our entries, which were broken down by date and attorney and time spent

[00:25:53] Speaker 04:
For some of them, there were related tasks that were lumped together.

[00:25:57] Speaker 04:
For instance, draft summary judgment motion related legal research.

[00:26:02] Speaker 04:
The district court felt that we should have broken those down a little bit more, and that is on us, and the district court reduced the fees accordingly according with the Low Star method.

[00:26:14] Speaker 04:
But I think directly to your point, Your Honor, there was much more to this case than the actual issues that have boiled to the surface on appeal.

[00:26:23] Speaker 02:
much of the earlier stages of the case were focused on the indefinite... You were arguing that it was almost a do-nothing case, and now you're going to tell us there was substantial work required?

[00:26:34] Speaker 04:
Not quite, Your Honor.

[00:26:35] Speaker 04:
There was definitely a do-nothing case on the infringement side, but there was much briefing on the invalidity of the patent.

[00:26:41] Speaker 04:
We had argued the indefiniteness of the claims because it requires subjective judgment by an operator.

[00:26:49] Speaker 04:
There was no

[00:26:51] Speaker 04:
support and the claim can start in the intrinsic record of who the operators were.

[00:26:55] Speaker 04:
I don't want to argue the issue of indefiniteness, but my point is there were other issues beyond infringement, which I believe are described in the order.

[00:27:03] Speaker 01:
That's a fair statement.

[00:27:06] Speaker 01:
Give me your best estimate of what proportion of the fees were related to that.

[00:27:14] Speaker 04:
To the indefiniteness?

[00:27:16] Speaker 04:
I hesitate to give you a percentage.

[00:27:19] Speaker 04:
I would think

[00:27:20] Speaker 04:
as a pure guess, along the neighborhood of 20 to 30 percent, but that's just off the bat.

[00:27:27] Speaker 04:
I can't say affirmatively.

[00:27:31] Speaker 04:
Lastly, turning to the issue of the awarded attorney fees and the fine of exceptionality, we don't think there's any fair dispute that the district court did not abuse its discretion in the way it awarded fees.

[00:27:45] Speaker 04:
It's clear from the text of the district court's order

[00:27:48] Speaker 04:
that the district court considered the totality of circumstances.

[00:27:52] Speaker 04:
It recited all the proceedings in the case from beginning through summary judgment.

[00:27:57] Speaker 04:
And it was not focused, in other words, on a single discovery transaction, as the opponent has argued.

[00:28:04] Speaker 02:
The district court says that it was not a frivolous case.

[00:28:08] Speaker 02:
And it seems to me that the district court focused on the YouTube videos.

[00:28:15] Speaker 02:
and perhaps she over relied on that, over focused on that.

[00:28:20] Speaker 02:
What's your view on that?

[00:28:22] Speaker 04:
I disagree that the court overly relied on that, Your Honor.

[00:28:25] Speaker 04:
The YouTube videos were one of the only three things Appellant pointed to and only in opposition to summary judgment as this evidence of infringement.

[00:28:35] Speaker 04:
This was a patent infringement case with no evidence of patent infringement up until we moved for summary judgment.

[00:28:41] Speaker 04:
The district court was correct in perhaps lending more attention to specifically the actual so-called evidence that was properly laid in the game.

[00:28:57] Speaker 04:
So I don't think that this is an issue of being only focused on that.

[00:29:04] Speaker 04:
And it was appropriate for the district court to give a little bit more treatment to that since that was so heavily argued in the district.

[00:29:11] Speaker 04:
I see that my time has expired, but... It is.

[00:29:14] Speaker 03:
Any more questions?

[00:29:15] Speaker 03:
Any more questions?

[00:29:16] Speaker 03:
Do you have one last word, a short one?

[00:29:20] Speaker 04:
The short one, Your Honor, is that we respectfully request the court affirm in its entirety both the judgment of non-infringement and the judgment of attorney's fees.

[00:29:28] Speaker 04:
Thank you.

[00:29:29] Speaker 04:
Okay.

[00:29:29] Speaker 03:
Thank you.

[00:29:43] Speaker 03:
Mr. Draxler.

[00:29:44] Speaker 00:
Thank you.

[00:29:46] Speaker 00:
Council placed Central Alliance on a case called EPAS.

[00:29:49] Speaker 00:
I don't see it cited in the red brief.

[00:29:51] Speaker 00:
I don't think it's a recent case, but the description of it sounded like it is a case in which the accused product was capable of infringing.

[00:30:00] Speaker 00:
We agree those types of cases go down on summary judgment.

[00:30:04] Speaker 00:
The distinction that we have is the cases like Moleculon, like Lucent, like Fujits, or I'm sorry,

[00:30:11] Speaker 00:
unlike Fujitsu, like Moleculon, like Toshiba, where the capability of infringement is accompanied by instructions.

[00:30:21] Speaker 00:
And also, I don't think this is necessary, but that it be the default mode for the device.

[00:30:27] Speaker 00:
And I direct the court to Appendix 1144, where it says, the picture below is shown when two Windows OS computers are connected.

[00:30:40] Speaker 00:
and to judge Wallach your question about this being referred to others or what have you, the default shows that the box that is checked is the accused feature, the accused mode of operating this device, not one of the other modes.

[00:30:53] Speaker 00:
When you plug your two computers together, this document, this is the document that Mr. Cheng was referring to, it's their Juc100 wormhole product.

[00:31:05] Speaker 00:
When you plug the two computers together,

[00:31:07] Speaker 00:
The preference that is checked is the accused feature.

[00:31:10] Speaker 00:
So it's not just a capability to infringe, but this is the default when you turn on or when you plug the computers together and turn them on.

[00:31:18] Speaker 00:
Now, if you turn one page from that or a couple of pages to 1146, Judge Wallach, I sent some skepticism on the merits, so I'm going to try and address that as best I can.

[00:31:28] Speaker 01:
You can have a hard road.

[00:31:30] Speaker 00:
Yeah, I hear you.

[00:31:31] Speaker 00:
We have limited time.

[00:31:33] Speaker 00:
Council thinks that their lead or the one point that they brought up

[00:31:36] Speaker 00:
that we seem to be missing is that they don't teach judging whether you should switch from the one monitor to the other.

[00:31:44] Speaker 00:
I'll point to 1146.

[00:31:45] Speaker 00:
It talks about keyboard and mouse sharing and it says... He didn't say that.

[00:31:50] Speaker 00:
He said it was one of many things.

[00:31:51] Speaker 00:
But the one that he talked about today, I can address the others, but the one that he seems to think is his best is that one.

[00:31:58] Speaker 00:
And he says move your mouse cursor, I'm sorry, their manual says move your mouse cursor between two displays naturally and seamlessly.

[00:32:05] Speaker 00:
And then it says, now you can move the mouse cursor across the left edge of the display to switch the mouse between the two Windows OS computers.

[00:32:14] Speaker 00:
I think it's fair to say inherent in that is that a person is going to judge that they want to move between the monitors when they move the mouse.

[00:32:24] Speaker 00:
That instructing someone, you can move the mouse, has inherent in it a statement of when you want to, when you've judged that you should move the mouse between the computers.

[00:32:34] Speaker 00:
Now, I know he said there were many others.

[00:32:36] Speaker 00:
That's the one that he addressed.

[00:32:38] Speaker 00:
The others that they actually addressed in the briefing, and again, it was not in their summary judgment motion.

[00:32:42] Speaker 00:
It was in the supplemental briefing that we never had a chance to respond to and was never invited by the court and was never addressed by the court, are the issues about initializing the keyboard and the monitor and then ending.

[00:32:55] Speaker 00:
And I would argue that those are inherent in any use of the product.

[00:32:59] Speaker 00:
Obviously, they show these two computers turned on with the screens working.

[00:33:03] Speaker 00:
Of course, you just initialized the keyboard and the monitor.

[00:33:07] Speaker 00:
You turned on your computer.

[00:33:09] Speaker 00:
These are not things that we need an expert to talk about.

[00:33:11] Speaker 00:
I submit that they're not things that Mr. Cheng had to talk about.

[00:33:15] Speaker 00:
The fact that they are in evidence, they are in the record in their own manual, I don't think that the court's law requires a witness to explain something that simple or that they have to expressly say, by the way,

[00:33:29] Speaker 00:
We show in our manual a computer that's turned on.

[00:33:31] Speaker 00:
Make sure to turn on your computer before you plug these things together.

[00:33:34] Speaker 00:
The things that they identify are so simple that anybody would know to perform them, and it would be part and parcel of reading this manual.

[00:33:44] Speaker 03:
OK, more questions?

[00:33:46] Speaker 03:
Questions?

[00:33:47] Speaker 03:
Thank you.

[00:33:47] Speaker 03:
Thank you, Bill.

[00:33:48] Speaker 03:
Case is taken under submission.