[00:00:13] Speaker 04:
All right the last argument of the day appeal number 2014 dash.

[00:00:20] Speaker 04:
1633 1643 1670.

[00:00:23] Speaker 04:
Arlington industry incorporated versus bridgeport.

[00:00:56] Speaker 04:
Okay, Mr. Anderson, you have reserved four minutes for rebuttal, is that right?

[00:01:03] Speaker 04:
Correct.

[00:01:03] Speaker 04:
Okay, please begin whenever you're ready.

[00:01:06] Speaker 02:
May it please the court.

[00:01:08] Speaker 02:
This court should reverse the judgment of contempt for either of two reasons.

[00:01:13] Speaker 02:
First, under the Colorable Differences Test of TiVo, Bridge Court's new patented conical connectors are substantially different from and better than its old cylindrical connectors.

[00:01:25] Speaker 02:
Indeed, in order to ensnare Bridgeport's new connectors, Arlington had to come up with a different claim construction than the one it proposed in the underlying litigation, which shows that a fair ground of doubt existed as to the wrongfulness of Bridgeport's conduct.

[00:01:41] Speaker 02:
Second, the District Court's construction of an external cylindrical surface violated fundamental principles of claim construction and is contradicted by the unambiguous claim language, the specification, and the figures in the patent.

[00:01:55] Speaker 02:
An external cylindrical surface in Claim 1 cannot be broadened to cover conical shapes.

[00:02:01] Speaker 02:
A cone is not a cylinder.

[00:02:04] Speaker 02:
I want to first address the proper claim construction of the an external cylindrical surface limitation.

[00:02:10] Speaker 02:
The District Court's claim construction is wrong for four reasons.

[00:02:14] Speaker 02:
First, it is contrary to the plain and ordinary meaning of cylindrical.

[00:02:19] Speaker 02:
Second, it is inconsistent with this court's decision in international rectifier versus IXYS.

[00:02:27] Speaker 02:
Third, it ignores the patentee's use of terms of approximation elsewhere in the patent, but conspicuously, not with regard to an external cylindrical circle.

[00:02:37] Speaker 04:
Instead of international rectifier, isn't the arguably closer case Edwards Life Sciences, which actually construed the word cylindrical,

[00:02:46] Speaker 02:
No, it is, Edwards Life Sciences is not the closer case.

[00:02:51] Speaker 02:
Edwards Life Sciences, where cylindrical was construed, the specification made it clear that it was talking about something that was substantially cylindrical.

[00:02:59] Speaker 02:
The disclosure showed a variation from the plain and ordinary meaning of cylindrical.

[00:03:05] Speaker 04:
When I read the court's opinion there, I don't see it doing

[00:03:09] Speaker 04:
treatment on the spec.

[00:03:12] Speaker 04:
It just says, you know, that the judge's construction that it doesn't require a perfect cylinder is consistent with the spec.

[00:03:23] Speaker 02:
Well, and that the judge's construction was consistent with the specification.

[00:03:28] Speaker 02:
The structure was described in the specification as substantially cylindrical and it was contrasted from a structure that is exclusively cylindrical.

[00:03:36] Speaker 02:
Here

[00:03:37] Speaker 02:
in the specification.

[00:03:39] Speaker 02:
First off, the limitation and external cylindrical surface appears nowhere in the specification.

[00:03:44] Speaker 04:
Throughout the specification... You talked about a cylindrical section over and over again, and cylindrical section has flanges.

[00:03:53] Speaker 02:
No, the cylindrical section does not include flanges, Your Honor.

[00:03:57] Speaker 04:
The cylindrical section... You know, column nine?

[00:03:58] Speaker 04:
Column 9, to be clear, one piece includes a die cast member having a smooth outer cylindrical section.

[00:04:05] Speaker 04:
The section accommodates a spring steel adapter.

[00:04:09] Speaker 04:
The smooth cylindrical section has flanges at each end, defining to hold the spring steel adapter in place.

[00:04:17] Speaker 04:
The judge below relied on this, saying a smooth cylindrical section isn't necessarily a pure cylinder.

[00:04:27] Speaker 04:
It can have

[00:04:28] Speaker 04:
sections on the end or subsections on the end that are flanges and that together comprises the smooth outer cylindrical section.

[00:04:42] Speaker 02:
No, Your Honor, the flanges are not part of what was described as a smooth cylindrical section.

[00:04:48] Speaker 03:
But there are portions at either end that have a slightly greater diameter.

[00:04:54] Speaker 02:
Yes, there are two.

[00:04:55] Speaker 03:
So that the diameter of the cylindrical surface is not uniform throughout.

[00:05:03] Speaker 02:
Well, it is not uniform route, but the indefinite article rule that says in a comprising plane such as we have here and external cylindrical surface means one or more than one.

[00:05:14] Speaker 02:
means that in order to interpret this claim properly, you have to interpret it as being one or more than one.

[00:05:21] Speaker 02:
That then is consistent with the figures in the patent.

[00:05:26] Speaker 02:
It is consistent with this description in column nine of a device that is not shown in any of the figures.

[00:05:33] Speaker 02:
Indeed, under the district court's construction, there's no smooth cylindrical surface because he conflated

[00:05:41] Speaker 02:
two cylindrical, different diameter cylindrical surfaces, as shown in the figures, as being one.

[00:05:49] Speaker 02:
And that was the fork in the road that led down the path to an incorrect plane construction.

[00:05:55] Speaker 04:
There's multiple places, besides column nine, that makes reference to some kind of outer cylindrical section.

[00:06:01] Speaker 04:
And each time it brings up the phrase, it talks about flanges on the end.

[00:06:06] Speaker 04:
It also says it in the summary of the invention, column two.

[00:06:11] Speaker 04:
a die cast member including at the inbound end a smooth outer cylindrical section having an outer diameter with flanges that accommodates the spring steel adapter.

[00:06:23] Speaker 02:
There is, the parties do not dispute, I don't believe, that the flanges are not part of the an external cylindrical surface.

[00:06:31] Speaker 02:
The flanges simply are the defining points for the area.

[00:06:36] Speaker 03:
I think Judge Chen is referring to the expanded

[00:06:40] Speaker 04:
children's show the larger-diameter portion why you're going to the the the small point yeah well you know we can we can we can look at it we can look at figure picture figure fifteen you could look at figure fifteen and where uh... the reduced-diameter seat element one thirty two is defined as all the space between central plan one thirty and the left one fifty and that necessarily includes not only

[00:07:09] Speaker 04:
I think what you would call the main cylindrical section but then also a very skinny rectangular subsection to the right of that and right before the lip that is raised up in terms of its diameter compared to the main cylindrical section so therefore that would be a flange that therefore comports with the idea that

[00:07:38] Speaker 04:
smooth cylindrical section isn't necessarily completely uniform all the way through at least as illustrated and described in this patent.

[00:07:46] Speaker 02:
That raised area, we call it a different diameter.

[00:07:50] Speaker 02:
It is not a flange as used in the patent.

[00:07:54] Speaker 02:
The flange is either 138 or 134 and that's the issue here on the claim construction.

[00:08:02] Speaker 02:
when the court construed an external cylindrical surface, it said it can be one and only one cylindrical surface, contrary to Baldwin graphic.

[00:08:14] Speaker 02:
When it then went down that path, it said, well, since it's got two different diameters, it has to be the approximate form of a cylinder.

[00:08:22] Speaker 04:
But that's wrong.

[00:08:23] Speaker 04:
Let's just get back to, I guess, figure six and figure 15, where it shows

[00:08:29] Speaker 04:
What I'll call a main rectangle and then a skinny but thicker rectangle, taller rectangle.

[00:08:37] Speaker 04:
Okay.

[00:08:37] Speaker 04:
If we were to believe that that's the external cylindrical surface, then doesn't that show that this patent is to find external cylindrical surface in a way that it's not something that has a consistent diameter all the way through?

[00:08:55] Speaker 02:
That would be an incorrect construction, your honor, because it shows two diameters.

[00:09:01] Speaker 02:
And throughout the patent, when it is referring to that area, the patentee never used the term of approximation.

[00:09:09] Speaker 02:
When he was describing, for example, the interlocking ring, and particularly in claim two, he said approximately cylindrical.

[00:09:16] Speaker 02:
In claim one, when he's describing the and external cylindrical surface, and under Baldwin graphic, and means one or more than one, he says it's cylindrical.

[00:09:25] Speaker 02:
Well, if you say it's one or more external cylindrical surface, that is consistent with what is shown in figure two.

[00:09:32] Speaker 02:
It is consistent with the patentee's lack of use of any term of approximation in the specification with regard to that description.

[00:09:42] Speaker 02:
And it is consistent

[00:09:44] Speaker 02:
with the, if you will, the old connectors, which had three separate cylindrical surfaces.

[00:09:49] Speaker 02:
What's the construction that you want?

[00:09:51] Speaker 02:
What we want is that cylindrical should be given its plain and ordinary meaning, which is exactly what the inventor used or said here, which is that a cylinder is relating to or having, excuse me, cylindrical is relating to or having the properties of a cylinder.

[00:10:10] Speaker 02:
The parties agree that that's the ordinary definition.

[00:10:12] Speaker 02:
and there's no disagreement that a cylinder is in an elongated body that has a circular cross section which remains constant along the body's axial axis.

[00:10:20] Speaker 04:
So you want cylindrical to mean a perfect geometric cylinder.

[00:10:25] Speaker 02:
Yes, that is a function of the proper claim construction and the words chosen by the inventor.

[00:10:31] Speaker 02:
It is just as in international rectifier, where the inventor there chose the term polygonal.

[00:10:38] Speaker 02:
And this court, in an opinion authored by Judge Lynn, said that that means it's got the characteristics of a polygon.

[00:10:46] Speaker 02:
That's the ordinary understanding of it.

[00:10:49] Speaker 02:
And the court said we have to hold the patentee subject to his choice of words.

[00:10:55] Speaker 02:
The patent he here clearly could have put in a term of approximation.

[00:10:59] Speaker 02:
He could have said one and only one to get out of the indefinite article rule.

[00:11:03] Speaker 02:
He could have said one and an external cylindrical surface that is approximately cylindrical.

[00:11:11] Speaker 04:
interprets that dictionary definition relating to or having the former properties of a cylinder as meaning a cylinder or something that's cylinder-ish.

[00:11:26] Speaker 04:
Why is that wrong?

[00:11:27] Speaker 02:
Well, it's wrong as a matter of what I'll call basic grammar.

[00:11:31] Speaker 02:
I mean, relating to, you know, doesn't refer to a cylinder.

[00:11:37] Speaker 02:
It's relating to the properties of a cylinder.

[00:11:40] Speaker 02:
And a cylinder, I mean everyone agrees that this is a clear, unambiguous term and should be given its plain and ordinary meaning.

[00:11:48] Speaker 02:
There is no dictionary that you can look to that says relating to or having the properties of approximately the form of a cylinder.

[00:11:57] Speaker 02:
And what happened here is that the district court in saying first that a surface, an external surface dot dot or an external dot dot dot surface

[00:12:09] Speaker 02:
in construing that as requiring only one surface.

[00:12:12] Speaker 02:
That was the wrong, and ignoring the indefinite article rule, that was the wrong fork in the road that then forced him, in effect, to say that, well, since there's multiple diameters here, it's got to be approximately the form of a cylinder.

[00:12:24] Speaker 02:
And here, that is simply incorrect because the patentee, if he had wanted to say approximately cylindrical, as he did in claim two, he clearly could have done it.

[00:12:36] Speaker 02:
He knew when to insert a term of approximation.

[00:12:41] Speaker 04:
Mr. Anderson, in your rebuttal, are there a couple other really quick points you want to make?

[00:12:46] Speaker 02:
Just so we can... Very quickly, with regard to colorable differences, Your Honor.

[00:12:52] Speaker 02:
At its core, the Colorable Differences Test of TiVo is to ensure and protect the due process and notice rights of an entity or a person.

[00:13:05] Speaker 02:
Here, when Arlington had to come up with a different claim construction than the one that they proposed in the underlying litigation, how is Bridgeport to have any notice or knowledge that that's going to be the claim construction, a new claim construction that they would apply in this proceeding,

[00:13:22] Speaker 02:
with a different methodology for determining infringement than they did in the underlying litigation.

[00:13:28] Speaker 02:
That right there raises, you know, should indicate that this is an appropriate case for a summary contempt proceeding.

[00:13:35] Speaker 02:
And then you add to it the fact that we have our own patent that Arlington distinguished between cylindrical and conical shapes in their patent applications and that our cylindrical, excuse me, conical connector operates in a substantially different way to achieve a substantially better result

[00:13:51] Speaker 02:
ease of use, removability, better electrical reliability, and a different manufacturing process.

[00:13:59] Speaker 02:
That clearly shows that there are colorable differences.

[00:14:01] Speaker 04:
Thanks.

[00:14:03] Speaker 04:
We'll preserve the rebuttal, or at least some of it.

[00:14:08] Speaker 04:
I guess you're going to go with 13 and then save two for rebuttal of your cross appeal, right?

[00:14:16] Speaker 00:
Yes, your honor.

[00:14:17] Speaker 00:
Thank you.

[00:14:18] Speaker 00:
Kate Booth Court, Katherine Clune on behalf of the cross appellant Arlington Industries.

[00:14:23] Speaker 00:
The evidence is recieved with evidence in support of the district court's finding of contempt here, both that the accused connectors are both colorable imitations of the adjoined connection.

[00:14:34] Speaker 04:
Can you start with whether you changed your claim construction for external cylindrical surface here in this action versus the original action?

[00:14:42] Speaker 00:
Yes, Your Honor.

[00:14:43] Speaker 00:
We absolutely did not change our claim construction.

[00:14:45] Speaker 00:
In fact, there was no claim construction provided for cylindrical, but we still pointed to, and actually if you look at

[00:14:52] Speaker 00:
leave it at A, 284 through 285, our original expert provided a claim chart and we provided that in the record.

[00:15:04] Speaker 00:
We pointed to the cylindrical surface, the same cylindrical surface that has been identified by the district court in this case and said that that is the cylindrical surface, just one cylindrical surface

[00:15:14] Speaker 00:
where the adapter is surrounding that surface and that it was cylindrical.

[00:15:20] Speaker 00:
It's just that because Bridgeport didn't actually dispute the term, there was no Colleen construction actually provided, but we didn't change anything with respect to cylindrical.

[00:15:28] Speaker 04:
I guess because the dispute never was truly joined as to what aspect of the old connectors corresponded with the external cylindrical surface, we just don't have

[00:15:41] Speaker 04:
a finding on that from it from the judge below or a specific decision either from you or from Mr. Anderson on on that score.

[00:15:52] Speaker 00:
No, that's not right, your honor.

[00:15:53] Speaker 00:
So there was actually a position from Arlington, as I said, at 284 to 286.

[00:15:58] Speaker 00:
where we actually specifically identified the exact same cylindrical surface that we're relying upon now in the enjoined connectors, which is everything in front of the plan.

[00:16:06] Speaker 04:
I looked at it, but it was kind of ambiguous.

[00:16:08] Speaker 04:
It wasn't clear to me what part of the accused product you were saying was the external cylindrical surface.

[00:16:16] Speaker 00:
Well, it's because the figure has the adapter still on it, but if you read actually the terminology, Your Honor, it says in the middle column, we state, as can clearly be seen, Bridgeport's spring steel locking rings significantly borders

[00:16:28] Speaker 00:
thus the cylindrical surface of the leading end of the Bridgeport's member.

[00:16:31] Speaker 00:
there was no argument at that time that Bridgeport, that there was three separate surfaces or there was one separate surface.

[00:16:38] Speaker 00:
As the patent always has referred to the cylindrical surface as the seat, it's actually always been kind of identified as a singular surface, the seat that provides the place or the surface area for the adapter to surround.

[00:16:52] Speaker 03:
Well, even if the patent, the specification, defines that seat as having these

[00:16:59] Speaker 03:
multiple sections of different diameter.

[00:17:03] Speaker 03:
Why does that mean that the expression an external cylindrical surface in claim one has to include all of those different diameter portions?

[00:17:14] Speaker 03:
Why can't that be referring to the predominant central cylindrical portion?

[00:17:22] Speaker 00:
Well there's just no, there's never any support for that in the specification or in the descriptions of the way that this product works in the specification because it talks about it's one adapter that is surrounding a surface area that has varying diameters and the fact is... I mean the adapter can surround multiple surfaces so when the claim says you've got an adapter surrounding

[00:17:52] Speaker 03:
the leading and external cylindrical surface.

[00:17:55] Speaker 03:
It certainly does surround that surface even if you break it down because it's surrounding all three surfaces.

[00:18:04] Speaker 00:
We don't believe that there's three separate services and actually the district court I think very correctly noted when it was doing its colorable imitation analysis which it was required to do under TiVo before it got to claim construction.

[00:18:16] Speaker 00:
I think it really can instruct the court and how the judge was looking at this because the court was required to make a factual determination under colorable imitation as to what was the claim's feature both in the enjoined connectors

[00:18:29] Speaker 00:
and in the accused connectors.

[00:18:31] Speaker 00:
After listening to three days of testimony from the experts, it was clear to the court that the external cylindrical surface has varying diameters and that it just has to be in the approximate form of a cylinder because that is, when you've looked at the product,

[00:18:46] Speaker 00:
of Bridgeport's enjoined connector.

[00:18:49] Speaker 00:
It had these raised portions just like the patent, as Your Honor pointed out, just like the patent actually shows.

[00:18:57] Speaker 00:
But even though the patent figures show these raised portions, they still refer to it as the external cylindrical surface or the seat.

[00:19:04] Speaker 00:
They don't actually refer to it as the separate portions.

[00:19:07] Speaker 00:
They always refer to it as the seat for the adapter to surround.

[00:19:11] Speaker 00:
And so when the court identified that as the product that was infringing.

[00:19:17] Speaker 00:
And so going back to your first question, Judge Shannon, to me about was there ever a finding?

[00:19:21] Speaker 00:
There was a finding.

[00:19:22] Speaker 00:
There was a finding of infringement of that enjoined connector.

[00:19:24] Speaker 00:
Because Bridgeport, when they admitted to infringement, they admitted that every single limitation was met by their enjoined connector.

[00:19:31] Speaker 00:
And so we know that their product had to have met that limitation.

[00:19:36] Speaker 00:
And they do have varying diameters.

[00:19:39] Speaker 00:
And the fact is that the patent specification shows varying diameter.

[00:19:44] Speaker 00:
So the only consistent claim construction is what the court found.

[00:19:49] Speaker 00:
was not limited to a perfect cylinder.

[00:19:51] Speaker 00:
In fact, as Bridgeport is clearly trying to articulate, just like in the Edward Light Sciences case, they're trying to change the claim term from cylindrical to perfect cylinder.

[00:20:01] Speaker 00:
And there is no support in the record to do so.

[00:20:03] Speaker 00:
And the court properly found that the claim construction is broad enough to encompass varying diameters.

[00:20:10] Speaker 00:
But where the court erred is after it found the products to be in contempt.

[00:20:15] Speaker 00:
and to find Bridgeport to have just violated the permanent injunction.

[00:20:19] Speaker 00:
And in case, what the court should really keep in mind, this case was so unique because these products had actually already been found to be colorable limitations in a jury trial and had been affirmed by this court to already be the same accused connectors to be colorable limitations of these claims.

[00:20:35] Speaker 00:
That's for a different patent.

[00:20:36] Speaker 00:
Different patent, but related and actually had more limitations because it was a structure claim and this was just a method claim.

[00:20:42] Speaker 03:
But there were different limitations to that issue, isn't it?

[00:20:44] Speaker 00:
They were very similar, but the reality was, and surrounding was actually the limitation in this case.

[00:20:51] Speaker 00:
It was actually a subset, because it had to be surrounding the entire leading end in the 050 patent.

[00:20:56] Speaker 00:
But what's interesting about that, though, is that once the court found that the contempt was met, where he erred was in fundamentally misunderstanding what the Third Circuit's exception to the foreign rate rule is, or the special expertise exception.

[00:21:13] Speaker 00:
Because there, the district court just

[00:21:15] Speaker 00:
refuse to consider institutional knowledge as a basis for finding special expertise exception.

[00:21:22] Speaker 00:
Despite the fact that there's no dispute that there was institutional knowledge that was absolutely required to try these cases.

[00:21:30] Speaker 00:
These litigation has been going on for 14 years between Arlington and Bridgeport.

[00:21:35] Speaker 00:
The same products, the same patents, the same related, all the same witnesses, the same expert witnesses, and the same counsel on the other side, both of whom, all of us, being from outside of the state.

[00:21:46] Speaker 00:
And the court looked at the interface decision and actually, despite the fact that there's no limit on what constitutes special expertise,

[00:21:55] Speaker 00:
and is what this court found in Bywaters.

[00:21:57] Speaker 00:
The only thing that the winning party in the contest proceedings have to establish is that there was no one in the forum

[00:22:06] Speaker 00:
that had the same special expertise.

[00:22:08] Speaker 00:
And in that case, in this case, there was no one in the forum that had both the patent litigation expertise and the institutional knowledge that my firm and myself had in this case.

[00:22:19] Speaker 00:
And there's really no dispute that there was this institutional knowledge.

[00:22:22] Speaker 00:
It's just that the court, as a legal issue, decided that he could not consider it because he believed it would swallow the rule.

[00:22:28] Speaker 00:
We know that that's not correct because in interface two, the district court following the interface one decision

[00:22:35] Speaker 00:
found that the special expertise exception was met by the plaintiff's law firm having tried a previous case and said that just by having tried that one case, that their special expertise was unique.

[00:22:47] Speaker 04:
And they got attorney's fees in the first case?

[00:22:50] Speaker 00:
They got attorney's fees in the first case based on the failure on the second exception, which is when no law firm would actually take the case.

[00:22:57] Speaker 04:
And so wasn't it a fair reading to say on Interface 2?

[00:23:00] Speaker 04:
The judge was just sort of piggybacking on that, on the second factor, and just simply saying, you know, this is almost law of the case.

[00:23:09] Speaker 04:
I'm just going to let it keep going.

[00:23:11] Speaker 00:
The court found both exceptions.

[00:23:13] Speaker 00:
The district court found both.

[00:23:14] Speaker 00:
And they said, absolutely, law of the case, you don't need, it would make no sense to change courses midstream.

[00:23:19] Speaker 00:
And so therefore, you don't have to, because we know that no other law firm could take it.

[00:23:23] Speaker 00:
But it also made a very specific finding that the special expertise exception was also met.

[00:23:29] Speaker 00:
Now when it went up on appeal, first it went up and we called it interface three.

[00:23:34] Speaker 00:
There they found law of the case and they didn't actually discuss or reach anything to do with the special expertise exception.

[00:23:39] Speaker 00:
That actual decision was vacated.

[00:23:41] Speaker 00:
That's what Bridgeport had misapplied in their case.

[00:23:44] Speaker 00:
But when it went back up to the Third Circuit again, they just found that they didn't need to reach that issue because they found that the second exception had been met.

[00:23:56] Speaker 00:
But what's really important and what we noted in our brief is that when it went back down to the District Court, which we refer to as Interface 5,

[00:24:03] Speaker 00:
In Interface 5, the District Court came back again and said that the special expertise exception has been met by the mere fact that the unique position that the plaintiff's law firm has gained by trying this case in the same issues against similar defendants.

[00:24:21] Speaker 00:
That pales in comparison to the importance of the

[00:24:26] Speaker 00:
of the inner relationship between all of these cases.

[00:24:30] Speaker 04:
If there isn't a third circuit case though that relies on institutional knowledge as a basis for special expertise, is that fair to say?

[00:24:37] Speaker 00:
But that's what, it's not that there's a case that says it.

[00:24:42] Speaker 04:
Let's get the playing field right.

[00:24:43] Speaker 00:
Is that fair to say?

[00:24:44] Speaker 00:
The Third Circuit just says that there has to be special expertise.

[00:24:47] Speaker 00:
It doesn't say that there can or cannot be institutional knowledge.

[00:24:51] Speaker 00:
That's absolutely correct.

[00:24:51] Speaker 00:
The Third Circuit hasn't met, in fact it said.

[00:24:54] Speaker 04:
And then the Middle District of Pennsylvania, they've got some other cases that go the other way against you.

[00:24:59] Speaker 04:
Is that fair to say too?

[00:25:00] Speaker 00:
I think this was the first case where Judge Caputo, just based on his own misunderstanding of Interface, and where he really was misunderstanding it was he pointed to Interface 1 and said that there had to be this bright

[00:25:15] Speaker 00:
He imposed this bright line rule that you had to go and interview law firms.

[00:25:19] Speaker 00:
What we kept trying to argue to him and what's clear is that in Interface 1 there was no issue of institutional knowledge.

[00:25:25] Speaker 00:
It was the absolute first lawsuit being brought and therefore just coming in with a new law firm from a different city when there were hundreds of other law firms in New Jersey that did this.

[00:25:34] Speaker 00:
But that was not the case here.

[00:25:36] Speaker 00:
In fact, there's so few law firms that even do patent litigation in the Middle District of Pennsylvania that the only law firms that Bridgeport even tried to identify was our expert witness and our local counsel, both of whom testified on the record with sworn statements that they were not qualified to take this case, neither from a substantive patent litigation expertise or from a

[00:26:00] Speaker 00:
institutional knowledge.

[00:26:02] Speaker 00:
They did not have that.

[00:26:03] Speaker 00:
So where the court, so again, the court made two errors, both on refusing to consider it, and I think that your question is right on Judge Chen, is that

[00:26:12] Speaker 00:
While the Third Circuit doesn't say that they found institutional knowledge yet, they by no means excluded it from the ability to consider it.

[00:26:22] Speaker 00:
But where the court actually compounded its error is that even then, when it actually went to determine what the actual proper fees to apply, it actually didn't even give Arlington the rate at which it did pay for its local counsel.

[00:26:35] Speaker 00:
So every single bill had been paid in full for their Pennsylvania rates of their attorneys.

[00:26:40] Speaker 00:
And they actually arbitrarily, the court arbitrarily reduced those rates and then gave the Washington DC firm, which the court recognized was substantially more experienced, gave just the Pennsylvania attorney's fees rates instead of a premium to that.

[00:26:57] Speaker 00:
So it was just the court correctly found that there was contempt.

[00:27:01] Speaker 00:
but ignored the Third Circuit's rules that an innocent party like Arlington should be made whole.

[00:27:07] Speaker 00:
When they did nothing wrong here, and they should be put back into the position that they would have been in, had Bridgeport not violated this injunction.

[00:27:15] Speaker 00:
And if there's no further questions right now, I'll reserve my time for rebuttal.

[00:27:19] Speaker 04:
Are there any other litigation coming around the corner?

[00:27:21] Speaker 00:
Yes, we just, we have one another case there.

[00:27:25] Speaker 00:
We have another finding of infringement and we're in an attorney's determination in that case right now.

[00:27:31] Speaker 00:
We won on summary judgment in that case and hopefully we will have that up to the court hopefully by next year.

[00:27:39] Speaker 04:
Okay, let's hear from Mr. Anderson.

[00:27:45] Speaker 04:
Can you set it at three minutes?

[00:27:51] Speaker 02:
Thank you, Your Honor.

[00:27:52] Speaker 02:
First off, the claim construction that Arlington's expert proposed in the underlying litigation is of A278.

[00:27:59] Speaker 02:
And I'm quoting it in part, but it says that the external cylindrical surface means the end of the member which is inserted into the hole or knocked out of the enclosure.

[00:28:08] Speaker 04:
I'm sorry, could you point me where?

[00:28:11] Speaker 02:
There's a lot of words on this.

[00:28:12] Speaker 02:
A278, second column.

[00:28:15] Speaker 02:
He then says the phrase, and he goes on, means the end of the member which is inserted into the hole or knocked out of the enclosure or housing, which has a cylindrical outer surface.

[00:28:27] Speaker 02:
suggestion there that cylindrical has anything other than its plain and ordinary meaning as we've already agreed.

[00:28:33] Speaker 02:
There's no suggestion that it means the approximate form of a cylinder.

[00:28:36] Speaker 02:
And then for Arlington to come in here in the contemporary seating to ensnare our product, they had to come up with a different clamp construction and an entirely different method of showing infringement.

[00:28:48] Speaker 02:
Before it was look at the device, well there's three cylindrical surfaces,

[00:28:52] Speaker 02:
That's it.

[00:28:53] Speaker 02:
It's not an issue.

[00:28:54] Speaker 04:
Here in this case... In your opposition brief below, you did identify all three portions of the seat as being, as composing the external cylindrical surface, right?

[00:29:08] Speaker 02:
Well, in the proceedings below... I mean, is that fair to say?

[00:29:11] Speaker 02:
Well, at one point we were trying to determine, understand what Arlington was... A347?

[00:29:18] Speaker 02:
Yeah.

[00:29:18] Speaker 02:
And we indicated that there are three separate cylindrical surfaces here, and that is consistent with... Right, that composed the quote-unquote cylindrical surface.

[00:29:27] Speaker 02:
Yes.

[00:29:28] Speaker 04:
And then your expert at A408...

[00:29:31] Speaker 04:
Williamson said the same thing.

[00:29:34] Speaker 04:
The straight parallel sides on the three cylinders that compose the quote unquote cylindrical surface on the old design.

[00:29:44] Speaker 04:
It seems pretty clear that you were on the record, along with your expert, as identifying all three portions of the cylindrical section of your old connectors as corresponding to the cylindrical surface.

[00:30:04] Speaker 02:
No, Your Honor.

[00:30:05] Speaker 02:
We were saying that, and as I elicited from Arlington's expert,

[00:30:08] Speaker 02:
There are three separate cylindrical surfaces on our old device.

[00:30:12] Speaker 02:
The new device has no cylindrical surfaces.

[00:30:15] Speaker 02:
And the court here ignored the fact that by failing to limit Arlington to how it sought to prove infringement in the underlying action, it failed to preserve our notice and due process rights.

[00:30:27] Speaker 02:
And it did not consider then the undisputed fact that our connector operates in a substantially different way and achieves substantially better results.

[00:30:37] Speaker 02:
Now, on claim construction, the limitation is an external cylindrical surface.

[00:30:43] Speaker 02:
That clearly implicates, because it's a comprising claim, the indefinite article rule.

[00:30:49] Speaker 02:
So it has to be one or more.

[00:30:51] Speaker 02:
You then look to the specifications to see is there anything that is clear and unequivocal

[00:30:57] Speaker 02:
if you will, exception to the rule.

[00:30:59] Speaker 02:
Throughout the specification, when it's referring to this area, it is always prefaced by saying A. In column 9, after saying A is through the cylindrical surface, which was consistent with the indefinite article, it then says duh.

[00:31:13] Speaker 02:
The case law is very clear.

[00:31:14] Speaker 02:
That's insufficient to take it out of the indefinite article rule.

[00:31:18] Speaker 02:
This is international rectifier.

[00:31:21] Speaker 04:
do you want to make a quick point about the attorney's fees across appeals?

[00:31:26] Speaker 02:
I think that the district court is correct, there are no third circuit cases

[00:31:33] Speaker 02:
that have this institutional knowledge exception.

[00:31:36] Speaker 02:
The district court cases do not allow an institutional knowledge exception.

[00:31:41] Speaker 02:
As the district court said, if you accept the institutional knowledge exception, then any loyal lawyer is entitled to it and swallows the first exception to the forum rate rule.

[00:31:56] Speaker 02:
And the rest, I think, is very clearly set forth in our brief.

[00:32:01] Speaker 04:
Okay.

[00:32:02] Speaker 04:
Thank you, Mr. Anderson.

[00:32:06] Speaker 04:
You still have some time left for rebuttal.

[00:32:08] Speaker 00:
Thank you, Your Honor.

[00:32:11] Speaker 00:
I just want to correct a misstatement from Mr. Anderson just now.

[00:32:15] Speaker 00:
There is absolutely not correct that there has been no third circuit cases.

[00:32:20] Speaker 00:
There have been at least, that we found at least two interface cases, district court cases, where they found special expertise.

[00:32:28] Speaker 00:
And those have been post

[00:32:30] Speaker 00:
the case where there was a law of the case.

[00:32:32] Speaker 00:
So when it came back down, right after having the third circuit state that at this moment they weren't going to reach the decision because they didn't need to, the district court in those cases found special expertise.

[00:32:44] Speaker 00:
And they based it on this particular issue.

[00:32:47] Speaker 00:
And other circuits have, based on the exact same special expertise test that the third circuit uses in the interface test, have found that institutional knowledge meets the special expertise exception.

[00:32:58] Speaker 00:
And it really makes sense.

[00:32:59] Speaker 00:
why the concern over that it would swallow the rule that the court mentioned is

[00:33:04] Speaker 00:
If there was just a generalized relationship that you can just bring in your former counsel that you've known for 12 years, that would be one thing.

[00:33:12] Speaker 00:
But there is actually no problem when you look at a case that is this interrelated and the facts, the products, the parties, the expert witnesses, everything is the same.

[00:33:21] Speaker 00:
For the court to say that that doesn't meet, when you combine it with patent litigation also expertise, that that in and of itself can't meet the test that this court even said in Bywaters.

[00:33:31] Speaker 00:
that all the party that is the winning party has to prove is that there's no one in the forum that has that particular type of special expertise.

[00:33:40] Speaker 00:
And nowhere is it limited to that special expertise must mean only substantive knowledge of an area.

[00:33:46] Speaker 00:
Because in this case,

[00:33:47] Speaker 00:
the use of what's going on at the Patent Office, what was going up on it here at this case, what's been going on in the interrelated parties, and knowing things like, for example, what Dr. Williamson had testified to in previous cases, or for example, how Bridgeport had actually testified about these products and the fact that they functioned in all the same ways.

[00:34:08] Speaker 00:
Those were relevant to us winning the case, and therefore should be considered special expertise.

[00:34:12] Speaker 00:
For that reason, we ask the court to remand on just that issue.

[00:34:16] Speaker 00:
OK.

[00:34:16] Speaker 04:
Thank you very much for your argument.

[00:34:18] Speaker 00:
Thank you.

[00:34:18] Speaker 04:
The case is submitted.

[00:34:20] Speaker 04:
And that concludes our proceedings for today.

[00:34:22] Speaker 01:
All rise.

[00:34:27] Speaker 01:
The Honorable Court is adjourned from day to day.