[00:00:10] Speaker 04:
The next case for argument is 14-1-2-5-3.

[00:00:13] Speaker 04:
And I'm sure I'm going to butcher this, but it's Brice Liptonik.

[00:00:23] Speaker 01:
Brice Liptonik.

[00:00:26] Speaker 01:
I'll just call it breathing.

[00:00:29] Speaker 04:
All right.

[00:00:29] Speaker 04:
Versus Langdon.

[00:00:48] Speaker 00:
close to Mr. Schavey.

[00:00:50] Speaker 00:
May I please the court?

[00:00:53] Speaker 00:
The district court erred in its claim construction.

[00:00:56] Speaker 00:
Under the proper claim construction, there is no infringement.

[00:01:00] Speaker 00:
The limitation of claim one requires a sliding means being displaceable on the tubular carrying means.

[00:01:09] Speaker 00:
The correct construction of displaceable on means some contact, some buddy, engaging.

[00:01:16] Speaker 00:
That construction

[00:01:17] Speaker 00:
stays true to the claim language and aligns with the patent's description of the invention.

[00:01:22] Speaker 03:
And why is it?

[00:01:23] Speaker 03:
Where in the record did you ask for that construction?

[00:01:26] Speaker 00:
On the summary judgment motion, Your Honor, Reese had moved for summary judgment of a willful infringement that was denied.

[00:01:33] Speaker 00:
That issue came up.

[00:01:35] Speaker 00:
We argued legally that displaceable on means contact and engaging.

[00:01:42] Speaker 00:
That's where

[00:01:43] Speaker 00:
It's in our opposition.

[00:01:44] Speaker 00:
It was a legal argument.

[00:01:45] Speaker 04:
But there was a claim construction that preceded that.

[00:01:48] Speaker 04:
Exactly.

[00:01:49] Speaker 04:
And this term was not in play, right?

[00:01:51] Speaker 04:
And that whole claim construction.

[00:01:53] Speaker 00:
Well, under SEDMED, SEDMED case, oh.

[00:01:56] Speaker 04:
Is that right?

[00:01:57] Speaker 04:
Am I right about that?

[00:01:57] Speaker 00:
You're right about that, yeah.

[00:01:58] Speaker 00:
Because nobody, well, it wasn't in play.

[00:02:00] Speaker 00:
But in dependent claim two, the word on was in play.

[00:02:05] Speaker 00:
And we agree.

[00:02:06] Speaker 04:
I'm asking you about the term that you're raising here is a claim construction question.

[00:02:10] Speaker 04:
When you went through claim construction below,

[00:02:13] Speaker 04:
was this term in play?

[00:02:17] Speaker 00:
Yes, it was.

[00:02:18] Speaker 00:
We proposed the claim construction which the district court adopted, but the term on itself was not in play.

[00:02:24] Speaker 00:
Because on means on.

[00:02:27] Speaker 00:
In our interpretation.

[00:02:29] Speaker 04:
Well, the claim construction that you proposed does not result in the resolution you're seeking here, right?

[00:02:36] Speaker 04:
You're seeking a further claim construction beyond what you originally proposed in your claim construction.

[00:02:41] Speaker 00:
I think it's consistent though, Your Honor.

[00:02:43] Speaker 00:
I agree that the word on wasn't disputed when we proposed the term, because it came up on claim construction.

[00:02:50] Speaker 00:
Yes, is this a means plus function term?

[00:02:53] Speaker 00:
We said yes.

[00:02:54] Speaker 00:
The sliding means is an annular structure.

[00:02:58] Speaker 00:
Everybody agreed with that.

[00:02:59] Speaker 00:
Court and Presa agreed with us.

[00:03:01] Speaker 00:
And what was the function?

[00:03:03] Speaker 00:
We proposed being displaceable on the tubular carrying mean.

[00:03:06] Speaker 00:
Everybody agreed with that too.

[00:03:08] Speaker 00:
And the District Court in claim construction adopted that.

[00:03:11] Speaker 00:
But I agree that the term on itself was not in play or disputed because it seemed so evident.

[00:03:19] Speaker 00:
Why is that?

[00:03:20] Speaker 00:
Why is that?

[00:03:20] Speaker 00:
It's on.

[00:03:21] Speaker 03:
And then the only way that it was raised in the summary judgment context was through the affidavit of Mr. Ortiz, which the court rejected, right?

[00:03:30] Speaker 00:
Well, the district court struck parts of Mr. Ortiz's declaration.

[00:03:34] Speaker 00:
That's true.

[00:03:34] Speaker 03:
Oh, that part?

[00:03:36] Speaker 00:
Yes, that's true.

[00:03:36] Speaker 00:
The relevant part.

[00:03:37] Speaker 00:
Well, no, I disagree because he was not a claim construction expert.

[00:03:41] Speaker 00:
It was a legal argument.

[00:03:42] Speaker 00:
This is the first part of the infringement test.

[00:03:44] Speaker 00:
We presented that in our papers.

[00:03:48] Speaker 04:
I don't understand your answer to Judge O'Malley's question.

[00:03:51] Speaker 04:
Were the portions of his declaration that were struck relevant or not relevant to what you are saying?

[00:03:57] Speaker 00:
It's relevant to the second part, whether or not the accused instrumentalities meet this limitation.

[00:04:04] Speaker 00:
He was not submitted as a claim construction expert.

[00:04:07] Speaker 00:
I think that's an important fact.

[00:04:10] Speaker 02:
Can I ask you on, I'm going to change the topic a little bit.

[00:04:15] Speaker 02:
The infringement trial was just about the resilient restoring forces provide an arrestment home holding the reflector element, is that right?

[00:04:24] Speaker 02:
That's correct.

[00:04:24] Speaker 02:
Can you try to explain to me what your non-infringement position was on that question?

[00:04:34] Speaker 00:
Yeah, and this was in Mr. Atiti's declaration too.

[00:04:38] Speaker 00:
struck parts of Mr. Ortiz's declaration, but one part, and that trial, was the limitation and claim one that the resilient, restoring forces provide, in other words, I agree, provide the arrest.

[00:04:50] Speaker 00:
We don't do that.

[00:04:51] Speaker 00:
We don't rely on those frictional forces to provide the arrestment.

[00:04:56] Speaker 00:
We propose that construction of the district court

[00:04:58] Speaker 00:
adopted or did our proposed district court adopted or proposed?

[00:05:01] Speaker 02:
How is it that you don't rely on, I'm trying to picture this.

[00:05:06] Speaker 02:
So, I mean, one, you have the, I forget what it's called, the stretcher or something coming down from the, so we have the umbrella that's out horizontally, right?

[00:05:16] Speaker 02:
And you have the stretcher coming down, attaching either to the annulus, and then that annulus is either

[00:05:25] Speaker 02:
moving all by itself along a pipe and bumping into the bearing member, right?

[00:05:31] Speaker 02:
So it's like in the patent.

[00:05:34] Speaker 02:
Yours has a bearing member, essentially, like a tube of some sort, and the thing is coming, and there's a little ring inside here, so it bumps into this, right?

[00:05:46] Speaker 02:
So in what way is that in any way different from something that, as I say, is an arrestment that

[00:05:54] Speaker 02:
prevents the resilient forces from moving.

[00:05:57] Speaker 00:
No.

[00:05:58] Speaker 00:
The claim, though, requires the resilient restoring forces provide the arrestment, as Mr. Ortiz testified in the accused instrument.

[00:06:05] Speaker 02:
The restoring forces, are they not essentially the vertical forces from the umbrella pushing down on the stretcher?

[00:06:13] Speaker 00:
Yes.

[00:06:14] Speaker 02:
So it doesn't really matter whether you block it this way or whether you block it this way.

[00:06:19] Speaker 00:
I agree.

[00:06:19] Speaker 00:
I know the claim.

[00:06:20] Speaker 00:
So we don't do that.

[00:06:21] Speaker 00:
Because the resilient restoring forces, if you see,

[00:06:24] Speaker 00:
Don't provide the arrestment.

[00:06:25] Speaker 00:
What we do, as Mr. Ortiz testified at trial, it's that tube.

[00:06:30] Speaker 00:
That's the only arrestment that's provided.

[00:06:33] Speaker 00:
Why is that?

[00:06:34] Speaker 00:
Because of the advancement.

[00:06:36] Speaker 00:
Our structure doesn't, our device doesn't do what's in the patent.

[00:06:40] Speaker 00:
Because it'll sit there and just flow along backwards and forward.

[00:06:43] Speaker 00:
If there was no tube back there, you would go find out the back end.

[00:06:47] Speaker 00:
But there is.

[00:06:49] Speaker 00:
Right.

[00:06:49] Speaker 00:
It provides the arrestment, not the resilient restoring force.

[00:06:52] Speaker 00:
That's different than what's recorded.

[00:06:53] Speaker 03:
But you proposed the construction.

[00:06:55] Speaker 03:
Exactly.

[00:06:55] Speaker 03:
The court accepted all the constructions, and you go to the jury, and the jury finds infringement under your construction.

[00:07:01] Speaker 03:
It's the best possible world that a defendant could be in, and the jury still found infringement.

[00:07:08] Speaker 06:
Yes.

[00:07:08] Speaker 03:
And so you'd have to argue that there was no substantial evidence to support that conclusion.

[00:07:15] Speaker 00:
Well, there's some other issues, though, too, about Mr. Kritchever's new slides that came in.

[00:07:19] Speaker 00:
We raised that.

[00:07:20] Speaker 00:
In a brief, we discussed that.

[00:07:22] Speaker 03:
There was nothing other than... The trial court carefully went through that and said there was nothing in the slides that is inconsistent with his report.

[00:07:32] Speaker 03:
The slides may not have been a part of his report, but experts use demonstrative aids at trial all the time.

[00:07:39] Speaker 03:
The court said those didn't even go to the jury.

[00:07:41] Speaker 03:
They were demonstrative aids.

[00:07:44] Speaker 03:
I don't understand.

[00:07:45] Speaker 03:
When I read the brief and you're saying this is the absolute worst thing that the trial court did, and yet it seemed to me the most

[00:07:52] Speaker 03:
easy one to conclude that the trial court had the discretion to allow that in.

[00:08:03] Speaker 03:
You don't point to any new opinion that was in those slides.

[00:08:10] Speaker 03:
You just say the slides weren't in the report.

[00:08:13] Speaker 03:
in that fashion.

[00:08:14] Speaker 03:
The trial court specifically said there's no new opinion and you don't point to any new opinion in your brief.

[00:08:21] Speaker 00:
Rule 26 requires more than just a statement of opinion.

[00:08:24] Speaker 00:
It requires any exhibits used to demonstrate that opinion.

[00:08:30] Speaker 03:
No, it doesn't.

[00:08:33] Speaker 03:
Rule 26 says that you have to have the things that you relied upon, but it doesn't say that if you're going to use a demonstrative aid in front of the jury that you have to put it in your report.

[00:08:43] Speaker 00:
But we disagree, Your Honor, because those were the basis.

[00:08:46] Speaker 00:
Other than those slides, which we got the night before his testimony at trial, if he wants to stick with what's in his report and give the conclusion, we're happy with that.

[00:08:58] Speaker 00:
The reason is we were given the opportunity to cross-examine him on those slides.

[00:09:03] Speaker 00:
If he had seen those slides, maybe we would have gotten our own expert.

[00:09:07] Speaker 00:
Maybe we would have deposed him.

[00:09:09] Speaker 00:
We didn't depose him.

[00:09:10] Speaker 03:
What was in the slides?

[00:09:12] Speaker 03:
that was a new opinion.

[00:09:14] Speaker 00:
His explanation in the series of 24, almost like a short little snippet of video, how the sliding mean supposedly operates.

[00:09:25] Speaker 00:
You flip through it, it's almost like a movie.

[00:09:27] Speaker 03:
So it's a nicer way of showing it to the jury, but is there any, you didn't argue below, and you haven't argued here, that there was an actual new opinion about how the sliding means operate.

[00:09:40] Speaker 03:
Well, I disagree, though, Your Honor, because that... So tell me where you argued, either below or here, that it was actually a new opinion versus just a fancier way to describe his opinion.

[00:09:50] Speaker 00:
Well, not necessarily a new opinion, but not requirement of Rule 26.

[00:09:53] Speaker 00:
It should have been included in his expert report.

[00:09:56] Speaker 00:
So we could have cross-examined him.

[00:09:58] Speaker 00:
So we could have called our own expert.

[00:09:59] Speaker 04:
To answer Judge O'Malley's question about how we can transcend the substantial evidence standard in regards to a jury verdict is...

[00:10:08] Speaker 04:
because of this evidentiary thing.

[00:10:09] Speaker 04:
So if we disagree with you on that point, where are we in terms of overturning the jury group that's extended to us?

[00:10:18] Speaker 00:
Well, what never got to the jury is our point, Your Honor, is the requirement of sliding means being displacement on the duplicate carrying means.

[00:10:28] Speaker 00:
The district court erred in its claim instruction, and it was considered by the district court on the reply and the summary judgment

[00:10:36] Speaker 00:
Reese's expert came in and gave his opinion on reply of what that term means.

[00:10:41] Speaker 00:
And from the district court's summary judgment decision, apparently agreed with Mr. Critchover.

[00:10:47] Speaker 00:
But that's not consistent with the intrinsic evidence.

[00:10:50] Speaker 00:
That's how there's no infringement is that limitation.

[00:10:53] Speaker 00:
And why is that?

[00:10:54] Speaker 00:
Because the intrinsic evidence on appears two other times.

[00:10:57] Speaker 03:
We really have to agree with you on your claim construction argument, both that it wasn't waived and B, that you're correct on the merits.

[00:11:05] Speaker 03:
before you could win on the infringement.

[00:11:07] Speaker 03:
No, I agree.

[00:11:08] Speaker 02:
Yeah, that's true.

[00:11:11] Speaker 02:
Your time is running out and I want to talk to you about the jury instruction.

[00:11:16] Speaker 02:
Assume with me for purposes of this question that the jury instruction about personal liability of Ortiz and whoever the other fellow is, is plain error, that it is also, there isn't even an argument that it's

[00:11:34] Speaker 02:
non-prejudicial in the usual sense, namely that the evidence would have required a finding of personal liability even if there had been a correct instruction.

[00:11:43] Speaker 02:
Those arguments, I think, are not even made.

[00:11:45] Speaker 02:
But there is, and the district court didn't disagree with either of those two propositions, the district court said, and this is what Breezy says here, it just doesn't matter here because the partnership was held liable and

[00:12:01] Speaker 02:
As partners, the individuals are liable for the partnership's liability.

[00:12:06] Speaker 02:
Now, I can imagine ways in which there would be a difference in consequence, but I'm just imagining them.

[00:12:13] Speaker 02:
Tell me what difference in consequence there actually is according to whether the individuals are subject to a personal liability judgment in this case and the situation where they're not.

[00:12:30] Speaker 00:
They're not because of the standards for the erroneous jury instruction.

[00:12:33] Speaker 00:
It has to be both erroneous and prejudicial.

[00:12:35] Speaker 00:
Remember, the prejudicial standard is very easy to meet.

[00:12:38] Speaker 00:
Could not have changed the results.

[00:12:41] Speaker 00:
I'm assuming that.

[00:12:42] Speaker 02:
The district court also assumed that.

[00:12:44] Speaker 02:
The district court nevertheless said there's no challenge to B2, B2 Pro, I guess, the partnership's liability.

[00:12:52] Speaker 02:
And when the partnership is liable, the partners are responsible for that liability.

[00:13:00] Speaker 02:
there is no, say under Federal Rules of Procedure 61, there is no essentially harmful error to correct.

[00:13:09] Speaker 00:
We disagree.

[00:13:10] Speaker 02:
Tell me what the concrete difference is.

[00:13:13] Speaker 00:
That presumes that the jury found that the partnership acted through these other individuals.

[00:13:19] Speaker 00:
That presumes that.

[00:13:20] Speaker 02:
You did not argue here that the partnership's liability is indirectly affected by the

[00:13:27] Speaker 02:
erroneous instruction about the individual's liability.

[00:13:32] Speaker 00:
You brought this up in response to arguments raised in the response... You did not argue here that the partnerships liability... No, I agree with you.

[00:13:40] Speaker 00:
I agree with you.

[00:13:41] Speaker 00:
It's trying to transmit that to the individuals, I think, where the prejudicial standard comes into play.

[00:13:48] Speaker 00:
That presumes that B2PRO was found to be an infringer because of some conduct by somebody.

[00:13:55] Speaker 00:
I mean, it's an entity.

[00:13:57] Speaker 00:
obviously works through people.

[00:13:58] Speaker 00:
We have to assume that.

[00:13:59] Speaker 03:
But it could work through anybody.

[00:14:00] Speaker 03:
It doesn't have to be those two individuals.

[00:14:02] Speaker 00:
But it acts through its partnerships.

[00:14:04] Speaker 00:
The jury could have found, could have found that individuals, the other workers, were not acts of the partnership.

[00:14:11] Speaker 00:
Could have found that.

[00:14:13] Speaker 00:
And therefore, the only way B2PRO was a direct infringer was through Langton and Ortiz.

[00:14:18] Speaker 00:
And the jury found Langton and Ortiz infringed using that wrong jury instruction that direct infringement could include inducement.

[00:14:27] Speaker 00:
That's why, Your Honor.

[00:14:29] Speaker 00:
Everybody presumes that B2PRO acts for whoever they want to.

[00:14:33] Speaker 03:
Whatever worker doesn't... What's the relationship between Key Lighting and B2PRO?

[00:14:37] Speaker 03:
I mean, there was a lot of cute testimony here.

[00:14:38] Speaker 03:
It looked like Key Lighting didn't even pay its proper dues to stay an active corporation.

[00:14:46] Speaker 03:
And so, I mean, the fact that there was some reference to it being a corporation seemed to be just a fiction.

[00:14:52] Speaker 00:
Well, it wasn't.

[00:14:53] Speaker 00:
The testimony from Mr. Ortiz was that it's a Nevada corporation.

[00:14:57] Speaker 00:
dues are paid up.

[00:14:57] Speaker 03:
He didn't say it was a valid corporation at the time of the act alleged.

[00:15:01] Speaker 03:
What he said is, well, there were lots of times when it wasn't a valid corporation and then other times we make it go ahead and pay and it becomes valid again and then it becomes invalid again.

[00:15:11] Speaker 03:
That's the best he ever said about its status.

[00:15:14] Speaker 03:
He never said it was an act of corporation.

[00:15:18] Speaker 00:
But he did say it is a Nevada corporation and at the time of the testimony all dues have been paid up.

[00:15:24] Speaker 00:
It is

[00:15:25] Speaker 00:
In my, they are very poor record keepers.

[00:15:28] Speaker 00:
Yes, Mr. Langton signed something to the state of New York.

[00:15:33] Speaker 00:
They're bad record keepers, but Key Lightning Inc.

[00:15:37] Speaker 00:
is a corporation, Nevada Corporation, and although the jury found B2 Pro as a partnership, it is, according to Mr. Langton and Mr. Keith, a DBA.

[00:15:47] Speaker 03:
But they also said they're two separate corporations.

[00:15:50] Speaker 00:
In some of the documents.

[00:15:51] Speaker 03:
Two separate businesses.

[00:15:51] Speaker 03:
Yes, yes, yes.

[00:15:53] Speaker 03:
And that B2 Pro was the one

[00:15:54] Speaker 03:
doing the work and sometimes just use the name Key Light.

[00:15:59] Speaker 00:
But again, they're not attorneys.

[00:16:01] Speaker 00:
There are people who do, like Mr. Ortiz, 15 years in the lighting business, and Mr. Langton also, years in the lighting business.

[00:16:09] Speaker 04:
Can I go back to, we'll extend your time, because I think we've got a few more questions.

[00:16:14] Speaker 04:
Just to make sure I understand where you concluded with Judge Toronto and your discussion with him.

[00:16:20] Speaker 04:
Your view is that the relevance of the jury instruction and the reason it hurt you is because the jury might have relied exclusively on that portion of the jury instruction to find liability by the partnership B2.

[00:16:34] Speaker 04:
But you haven't appealed the finding of liability by B2, have you?

[00:16:42] Speaker 04:
Is that the part of this appeal?

[00:16:47] Speaker 00:
We appeal the final judgment if that's specifically

[00:16:50] Speaker 04:
But you haven't raised here the fact that B2 as a corporation should not have been liable?

[00:16:56] Speaker 04:
No, no.

[00:16:57] Speaker 04:
So how is that argument preserved here on appeal?

[00:17:02] Speaker 04:
I mean, the argument that you're saying that, well, the reason it's relevant is because B2, we should assume that the jury wouldn't have found B2 liable and therefore were only left with these two partners when that issue is

[00:17:16] Speaker 04:
settled and done for purposes of our appeal that v2 as a partnership is liable.

[00:17:22] Speaker 00:
Can you see my question?

[00:17:23] Speaker 00:
I understand.

[00:17:24] Speaker 00:
It goes to the individuals.

[00:17:25] Speaker 00:
I was arguing that the two individuals, Langton and Ortiz, could not, because the argument was raised by Breeze, v2 froze infringers, therefore they must be infringers also.

[00:17:38] Speaker 00:
But my argument is, oh, that's not actually true.

[00:17:42] Speaker 00:
The jury could have found that

[00:17:44] Speaker 00:
Lanks and Ortiz were direct infringers using the incorrect jury.

[00:17:48] Speaker 04:
And the consequence of that would be everything would fall then if the jury instruction were incorrect.

[00:17:54] Speaker 04:
But you haven't appealed the finding of liability by the jury of the partnership.

[00:18:00] Speaker 04:
So it seems to me that that door is closed in terms of doing anything about that.

[00:18:06] Speaker 04:
Am I wrong about that?

[00:18:08] Speaker 00:
I think you're wrong, Your Honor.

[00:18:09] Speaker 00:
I think the issue needs to be addressed also because of the claim instruction issue.

[00:18:14] Speaker 00:
If you agree with my claim construction.

[00:18:16] Speaker 04:
Well, yeah.

[00:18:16] Speaker 04:
OK.

[00:18:17] Speaker 04:
I appreciate that if we're back there.

[00:18:19] Speaker 04:
Let me just spend a couple more minutes, and I ask your indulgence, just on jury instruction number 18.

[00:18:25] Speaker 04:
And that's the willfulness question.

[00:18:27] Speaker 04:
You did not object to the jury instruction.

[00:18:31] Speaker 04:
Am I correct about that?

[00:18:33] Speaker 00:
At the time we did on the record, as we know in our brief, we raised an objection after the jury.

[00:18:40] Speaker 00:
So there was a time lag.

[00:18:42] Speaker 00:
As I said in the blue brief, we did object.

[00:18:46] Speaker 00:
I can find the site in the blue brief.

[00:18:47] Speaker 03:
As you can see, there was no timely objection to the instruction.

[00:18:51] Speaker 00:
Not necessarily, because we raised it with Judge Conte that we want to get in after, you know, other evidence of other claim instructions we had proposed because it's not going to the jury.

[00:19:02] Speaker 00:
I'm paraphrasing what we said.

[00:19:03] Speaker 00:
And Judge Conte said, denied, objection knows for the record.

[00:19:08] Speaker 00:
We felt we preserved our objections.

[00:19:10] Speaker 00:
It's not that the jury structure was wrong.

[00:19:14] Speaker 00:
It probably does state the right law in the Seagate.

[00:19:16] Speaker 00:
The problem is Judge Conte didn't decide the objective factor.

[00:19:19] Speaker 00:
And this is similar to the recent Stryker versus Zimmer case.

[00:19:22] Speaker 04:
So why are you arguing on appeal the jury instruction here?

[00:19:25] Speaker 04:
You didn't file a J-mall just on the issue of willfulness, the failure to find objective reasonableness, the failure for the judge.

[00:19:33] Speaker 04:
None of that stuff came up other than, as I understand it,

[00:19:37] Speaker 04:
other than an objective to the jury instruction.

[00:19:39] Speaker 04:
Am I right about that?

[00:19:41] Speaker 00:
Well, you're partially right.

[00:19:42] Speaker 00:
We did file a motion for new trial.

[00:19:45] Speaker 00:
It included the erroneous jury instruction.

[00:19:48] Speaker 04:
Yeah.

[00:19:48] Speaker 04:
Yeah, but I'm saying outside, you conceded to us that there was nothing in and of itself in the jury instruction.

[00:19:56] Speaker 04:
The real failure here, the alleged failure, was that the judge, as a practical matter, either before or after it went to the jury, didn't himself analyze the objective reasonableness

[00:20:07] Speaker 04:
Where is that argument preserved?

[00:20:10] Speaker 00:
We raised an objection.

[00:20:12] Speaker 00:
We feel it was in the record, not at the time that your instruction was objection to, but during, right before the trial.

[00:20:20] Speaker 00:
It's in the training.

[00:20:22] Speaker 04:
Right before the trial you said?

[00:20:35] Speaker 04:
Well, I don't want to take your time here, but even whatever you... Go ahead.

[00:20:38] Speaker 00:
Opening brief page 32.

[00:20:39] Speaker 00:
It cites the transcript.

[00:20:42] Speaker 00:
Sorry, A315.

[00:20:44] Speaker 00:
I'll just read it.

[00:20:47] Speaker 00:
I'm sorry, A315.

[00:20:48] Speaker 00:
A315, line 24.

[00:20:49] Speaker 06:
Okay.

[00:20:51] Speaker 00:
Their defense advises, I'm just paraphrasing, the district court at trial that evidence may come in on the issue of whether defendants acted in an objectively reasonable manner.

[00:21:03] Speaker 04:
Are you sure we're on A315?

[00:21:05] Speaker 00:
315-924.

[00:21:08] Speaker 04:
That said, we just want to bring to the court's attention.

[00:21:11] Speaker 00:
I believe that's right.

[00:21:11] Speaker 04:
Is there an issue in this case?

[00:21:16] Speaker 00:
In the next page it goes.

[00:21:21] Speaker 04:
All right.

[00:21:22] Speaker 04:
So this was your objection and how did you preserve it?

[00:21:28] Speaker 04:
You mentioned that you asked for a new trial.

[00:21:34] Speaker 03:
But your request only had to do with your belief that you had infringement theories that you should have been allowed to present.

[00:21:43] Speaker 00:
Absolutely.

[00:21:44] Speaker 00:
The first objective factor is determinism of willfulness issue.

[00:21:48] Speaker 00:
We proposed constructions that, first of all, the sliding means being displaceable on the to be the carry means.

[00:21:55] Speaker 03:
Right.

[00:21:55] Speaker 03:
But you never argued that the fact that the judge allowed the jury to make

[00:22:03] Speaker 03:
some conclusions with respect to the objective prong was itself error.

[00:22:13] Speaker 00:
I think we did in the new trial.

[00:22:15] Speaker 00:
This is similar to Stryker versus Zimmer.

[00:22:17] Speaker 00:
This is a case actually worse than Stryker versus Zimmer, the recent, back last month, where in that case the district court, apparently after the trial, did decide the objective factor but didn't give enough weight.

[00:22:28] Speaker 00:
Here Judge Conti didn't

[00:22:30] Speaker 00:
gave it up, gave it to the jury.

[00:22:31] Speaker 02:
Well, as I understand Chief Judge Crouse's question, or maybe in any event it's my question, where did you ask the judge himself or herself to decide whether your non-infringement defenses were objectively reasonable?

[00:22:51] Speaker 00:
One in the objection I noted in the transcript, and then the new trial.

[00:22:57] Speaker 00:
We asked for a new trial based on that.

[00:22:59] Speaker 00:
based on the willfulness issue.

[00:23:01] Speaker 00:
And otherwise, there are other pleadings before that.

[00:23:04] Speaker 00:
I mean, in the trial brief, trial brief with Judge Conte, on the summary judgment motion, the motion was summary judgment for willful imprisonment.

[00:23:14] Speaker 02:
And in the new trial motion, arguing that your non-infringement defense was objectively reasonable and therefore there cannot be willfulness.

[00:23:28] Speaker 02:
Did you rely on the single infringement issue that went to trial or only on elements found against you on summary judgment?

[00:23:44] Speaker 00:
I'd have to look at it just to be sure on that.

[00:23:46] Speaker 00:
But we must have raised all those issues.

[00:23:51] Speaker 00:
I just don't have it in front of me right now.

[00:23:53] Speaker 02:
How much money did the other side ask for the jury to award?

[00:24:00] Speaker 00:
That varied it.

[00:24:01] Speaker 00:
The patent infringement was, I believe, $2.4 million.

[00:24:05] Speaker 00:
For the trade dress claim, which we prevailed on, it was zero, although they had argued they should get the $2.4 million also.

[00:24:12] Speaker 02:
But then the patent claimed they asked for $2.4 million and they got $300 million.

[00:24:15] Speaker 04:
Correct.

[00:24:18] Speaker 04:
All right.

[00:24:19] Speaker 04:
We've gone way ahead.

[00:24:20] Speaker 04:
We'll restore your two minutes of rebuttal and we'll add

[00:24:24] Speaker 04:
eight minutes to the other side, although we're all hopeful that you won't need to use it.

[00:24:30] Speaker 01:
Thank you, Your Honor.

[00:24:32] Speaker 01:
I'm Gary Servan for Breeze Elic Technique and Hans Werner Breeze, Collective of Breeze.

[00:24:38] Speaker 01:
May it please the Court?

[00:24:39] Speaker 01:
I wanted to respond to several arguments that were raised this morning.

[00:24:45] Speaker 01:
I wanted to start first with the claim construction issue.

[00:24:50] Speaker 01:
The term here is

[00:24:54] Speaker 01:
sliding mean, displaceable on the tubular carrying means.

[00:24:59] Speaker 01:
The parties agreed to the construction of the term and the court adopted that construction.

[00:25:06] Speaker 01:
The defendants or the appellants here never requested during mark-me hearings, during claim construction hearings, that the phrase displaceable on should be construed something different than what they already agreed to.

[00:25:23] Speaker 01:
What they're trying to do now is take the construction of word on in claim two, where the phrase is supported on.

[00:25:33] Speaker 01:
The agreed construction there was abutting and engaging.

[00:25:36] Speaker 01:
There was nothing about contact.

[00:25:38] Speaker 01:
They're trying to take that phrase, collapse it into the definition of contact, inject a new term in here, collapse that term into on and port it into claim one to a term displaceable on.

[00:25:52] Speaker 02:
Can I change the subject quite radically to the things that at least caused me some concern?

[00:26:00] Speaker 02:
The jury instruction about the individual's liability.

[00:26:05] Speaker 02:
The district court did not say and you do not argue that that was a correct instruction.

[00:26:10] Speaker 02:
And the district court did not find and you do not argue that it was non-prejudicial in the usual sense that the evidence was so strong

[00:26:22] Speaker 02:
that not only could a jury find individual liability under proper instruction, but it had to.

[00:26:29] Speaker 02:
The district court found, and you argue only as to that, that it simply does not make any difference whether there is a judgment of personal liability or simply indirect responsibility for the personal liability that attaches to the partnership.

[00:26:46] Speaker 02:
If that's the case,

[00:26:48] Speaker 02:
Tell me why you would not give up the personal liability judgment against the individuals.

[00:26:54] Speaker 01:
Well, Your Honor, there are a couple of issues here.

[00:26:56] Speaker 01:
So the first part is that the only issue they're taking with the instruction number 14 is the second sentence that dealt with personal liability of corporate officers.

[00:27:05] Speaker 01:
It does not affect corporate liability of key lighting.

[00:27:09] Speaker 02:
My question was not about that.

[00:27:10] Speaker 02:
They do not argue liability against liability of key lighting or against B2PRO.

[00:27:17] Speaker 02:
I want to know why is it that you would not stand here and say, we will give up the personal liability of the individuals?

[00:27:25] Speaker 01:
Well, we can give up the personal liability.

[00:27:29] Speaker 02:
The personal liability judgment.

[00:27:31] Speaker 01:
First of all, we can give up the part of the instruction that awarded personal liability as officers because of their partners in the partnership B2PRO, which was found to be partnership, which they didn't object.

[00:27:43] Speaker 01:
And the partnership of what is directly infringing the patent.

[00:27:48] Speaker 01:
They're liable personally as partners of partnership B2B.

[00:27:52] Speaker 02:
That does not itself support a judgment of personal liability against them here.

[00:27:58] Speaker 02:
They might, you might go after them for personal liability for the partnerships liabilities.

[00:28:04] Speaker 02:
Are you willing here to say that you will give up the judgment of personal liability for the individuals?

[00:28:12] Speaker 02:
And if not, it must matter to you in which case how can it

[00:28:16] Speaker 01:
How can we possibly... Well, Your Honor, there was also a judgment of personal infringement by Langton and Ortiz separately from instruction number 14.

[00:28:26] Speaker 02:
How do we know that's separate from the instruction?

[00:28:28] Speaker 02:
The instruction, that may have been in fact the sole basis on which the jury held them personally liable.

[00:28:35] Speaker 01:
Well, they held them personally liable as officers, whereas the instruction number

[00:28:41] Speaker 01:
The other parts of the jury instructions were basically saying that the individual are personally infringing.

[00:28:47] Speaker 01:
So there's a difference between infringement by corporation, infringement by B2PRO's partnership, and infringement by them as individual as opposed to personal liability for the act of the corporation.

[00:29:02] Speaker 02:
Let me put all that aside, which appears nowhere in your red brief.

[00:29:06] Speaker 02:
Can you answer straight up, are you willing standing here to give up the personal liability judgment against Langlands and Ortiz?

[00:29:13] Speaker 01:
We're not ready to.

[00:29:15] Speaker 01:
Why not?

[00:29:16] Speaker 01:
Because the personal liability flows from their partnership.

[00:29:21] Speaker 02:
The personal liability judgment does not flow from the partnership liability.

[00:29:28] Speaker 02:
And there certainly was no instruction that they can be held liable

[00:29:32] Speaker 02:
solely as responsible for the partnership liability.

[00:29:38] Speaker 02:
Why does it matter to you that there is a personal liability judgment against Langland and Ortiz?

[00:29:43] Speaker 01:
Well, I think it is a moot point because they are partners of B2PRO.

[00:29:48] Speaker 02:
So why don't you give it up if it's a moot point?

[00:29:51] Speaker 01:
I think that at this point, I mean, to the extent that it would help them avoid liability, I don't know, I have to look at all the different

[00:29:59] Speaker 01:
issues associated, to the extent they're able to avoid liability.

[00:30:03] Speaker 02:
Which is to say there is some possibility it actually matters.

[00:30:07] Speaker 01:
I don't think it matters, Your Honor.

[00:30:09] Speaker 02:
Do you think B2PRO is judgment-proof?

[00:30:10] Speaker 03:
Is that what you're considering?

[00:30:12] Speaker 01:
It's very possible.

[00:30:13] Speaker 01:
B2PRO is judgment-proof.

[00:30:14] Speaker 01:
It's very possible key lighting is judgment-proof.

[00:30:17] Speaker 01:
And as you've seen in the record, there was a lot of discovery issues and sanctions for non-production.

[00:30:25] Speaker 01:
And we had a very difficult time tracking things down.

[00:30:29] Speaker 01:
including financials, documents.

[00:30:31] Speaker 02:
So I think- But my problem is that the possibilities that it might matter are the very possibilities that seem to me to make the reasoning, if they're real, to make the reasoning, the sole reasoning on which you defend and the district court found that you may as well leave them in place, notwithstanding the plain, possibly president, prejudicial error.

[00:30:58] Speaker 02:
of the instruction, it seems to me to erase that, that it might actually matter.

[00:31:03] Speaker 01:
I agree, Your Honor.

[00:31:05] Speaker 01:
I do not believe it matters, but given the posture of this case and the history of this case, I think that the instruction number 14 is not prejudicial to them.

[00:31:16] Speaker 03:
Isn't it true that the district court also separately from this discussion of the partnership liability said

[00:31:22] Speaker 03:
that there was, and I think the words were for, there was abundant evidence of their personal liability, and you had separately brought claims against them in their personal capacity.

[00:31:33] Speaker 01:
Correct, Your Honor.

[00:31:34] Speaker 01:
And that's what I'm trying to get to, that we brought claims.

[00:31:36] Speaker 02:
Your Red Brief does not argue that the evidence is so strong, whatever abundant means, so strong that a correctly instructed jury would have had to find them liable.

[00:31:50] Speaker 02:
It does not argue that.

[00:31:51] Speaker 02:
It merely says there's sufficient evidence so that there is not a JMOL entitlement of non-infringement on their part.

[00:32:01] Speaker 01:
Correct, Your Honor.

[00:32:02] Speaker 01:
But the jury found them personally infringing, not necessarily personally liable.

[00:32:07] Speaker 02:
And it might have been based on that instruction.

[00:32:09] Speaker 01:
No, not necessarily.

[00:32:11] Speaker 02:
Not necessarily.

[00:32:12] Speaker 02:
It might have.

[00:32:12] Speaker 02:
It might have.

[00:32:13] Speaker 02:
It might have.

[00:32:14] Speaker 01:
No, the instruction, the instruction number 14, the second sentence says, personal liability as officers because of corporate

[00:32:21] Speaker 01:
infringement, not because of their individual infringement.

[00:32:25] Speaker 01:
The jury had enough evidence to find them individually infringing and therefore awarded liability for their individual infringement.

[00:32:32] Speaker 01:
So while we're happy to take their personal liability score corporate officers out of the case, keep key lighting infringement in, keep B2PRO infringement in, they would still be liable as partners of B2PRO personally for B2PRO direct infringement.

[00:32:50] Speaker 01:
whether it happened it was done by them individually or by anyone else at B2PRO as long as B2PRO infringes and they're the sole two partners.

[00:32:59] Speaker 04:
We've come full circle now because that's why if that's the position and the liability finding for the judgment calls for B2 then as you suggested it was moot as Judge Toronto suggested

[00:33:12] Speaker 04:
then why don't you agree to take it out?

[00:33:15] Speaker 01:
I understand the point.

[00:33:20] Speaker 01:
We would agree, Your Honor, if that is how the court is viewing it.

[00:33:26] Speaker 01:
We originally viewed it as there was no imputation, there was no instruction that somehow the liability of individuals somehow transferred into direct infringement by B2PRO.

[00:33:37] Speaker 01:
There was no instruction for the jury to find that.

[00:33:39] Speaker 01:
the jury found B2PRO directly infringing and therefore they're liable.

[00:33:43] Speaker 01:
But given your questions and your explanation, I think we're ready to... Can I ask you, are you willing to, I'm sorry, just... We're willing to concede that that part doesn't matter and we would not care about the personal liability as long as B2PRO is found liable and their direct infringement, they're liable as corporate, as partners of B2PRO,

[00:34:08] Speaker 01:
and as long as key lighting is held liable for its infringement, direct infringement.

[00:34:14] Speaker 02:
Can I switch to Wilfam?

[00:34:17] Speaker 02:
Yes.

[00:34:17] Speaker 02:
Can you explain, first of all, put completely to one side whether it matters that the jury was asked to address the objective reasonableness portion of Seagate?

[00:34:31] Speaker 02:
Yes.

[00:34:31] Speaker 02:
The district judge didn't discuss that, didn't say here's why

[00:34:35] Speaker 02:
their non-infringement defense was objectively reasonable.

[00:34:39] Speaker 02:
So I guess I have two questions.

[00:34:41] Speaker 02:
One, did they ask the judge to decide that?

[00:34:46] Speaker 02:
I don't think you say not in your red brief.

[00:34:49] Speaker 02:
And second, explain, just explain why their non-infringement position is objectively unreasonable.

[00:35:00] Speaker 01:
Okay.

[00:35:00] Speaker 01:
So the judge, Judge Conte, in the

[00:35:04] Speaker 01:
motion for new trial stated that their positions were not reasonable.

[00:35:11] Speaker 01:
He wasn't going to overturn the verdict because the claim constructions on which they found to be infringing were the exact claim construction that they proposed.

[00:35:22] Speaker 01:
He is basically saying the claim construction didn't go to the jury.

[00:35:25] Speaker 01:
The claim construction were reviewed by him.

[00:35:27] Speaker 01:
He understood the claim construction.

[00:35:30] Speaker 01:
He says that based on your claim construction,

[00:35:32] Speaker 01:
you were found to be infringing.

[00:35:35] Speaker 02:
That takes care of the objective prong because he didn't... I'm sorry, how could that possibly take care of the objective prong unless you're standing here and saying that every loser has made by definition an objectively unreasonable argument?

[00:35:50] Speaker 01:
No, the claim construction itself was something that they presented.

[00:35:55] Speaker 02:
Right.

[00:35:55] Speaker 01:
So there was no dispute on claim construction that somehow the claim construction.

[00:36:01] Speaker 02:
Why wasn't, I guess what I'm interested in is the explanation for why taking the claim constructions as a given, their non-infringement defense was not objectively reasonable.

[00:36:14] Speaker 02:
Wrong, evidently, but objectively reasonable.

[00:36:18] Speaker 01:
Okay.

[00:36:18] Speaker 01:
So from the non-infringement defense, which went to the jury on one term,

[00:36:24] Speaker 01:
was based on their claim construction and their structure and operation of their device.

[00:36:30] Speaker 01:
Every part of their accused device, the claim one read on every part of their accused device.

[00:36:38] Speaker 01:
So the jury was asked as to whether their defense of non-infringement, which is a factual matter, was objectively reasonable.

[00:36:49] Speaker 02:
That is a matter of law and I'm still waiting for the explanation for why

[00:36:54] Speaker 02:
It was objectively unreasonable in your view, taking as a premise that it was incorrect, that the jury could properly say, no, you're wrong.

[00:37:05] Speaker 02:
This element, whatever this resilient restoring forces element, the only issue that actually went to the jury, that actually does read on your product.

[00:37:16] Speaker 02:
Why was it unreasonable objectively for them to argue the contrary?

[00:37:22] Speaker 01:
Well, because under the mayor case, when the defense is based on the legal issues, then the court should be deciding.

[00:37:34] Speaker 01:
It's a questionable law.

[00:37:35] Speaker 01:
When the objectable prong is based on the factual, the defense of that is based on the factual issue, under the mayor case, it can be decided by the jury.

[00:37:44] Speaker 04:
I'm trying to remember Seagate.

[00:37:47] Speaker 04:
I mean, we've got the subjective prong and the objective prong.

[00:37:51] Speaker 04:
And you're saying that under the objective prong, we've bifurcated and we've said, claim construction is for the court and infringement questions are for the jury.

[00:38:01] Speaker 01:
Is that the reason?

[00:38:02] Speaker 01:
In the mayor.

[00:38:02] Speaker 04:
What about validity?

[00:38:03] Speaker 04:
Because those questions are part facts and part law.

[00:38:07] Speaker 01:
So under the mayor, in the mayor case.

[00:38:09] Speaker 03:
You say it's a mayor case.

[00:38:10] Speaker 03:
Are you talking about Seagate and race?

[00:38:11] Speaker 01:
No, no, no.

[00:38:12] Speaker 03:
It's actually mayor.

[00:38:14] Speaker 03:
Well, we actually said it in part, didn't we not, that as to the objective prong, underlying facts

[00:38:19] Speaker 03:
Correct.

[00:38:20] Speaker 03:
Are to be decided by the jury.

[00:38:22] Speaker 03:
Correct.

[00:38:23] Speaker 03:
And then only the legal implication of those facts ultimately is what the court decides.

[00:38:28] Speaker 03:
Correct.

[00:38:28] Speaker 03:
And that's where the court here said the only legal implication is whether or not the claim construction was right or wrong because every other determination was a question of fact.

[00:38:39] Speaker 01:
Correct.

[00:38:40] Speaker 01:
And in this particular case Judge Conti looked at the legal, at what the jury found based on factual issues.

[00:38:49] Speaker 01:
they found it to be infringing.

[00:38:51] Speaker 01:
Look at how the case progressed given that the infringement was based on the claim construction that they proposed and they agreed.

[00:39:00] Speaker 01:
So he felt the objective prong.

[00:39:04] Speaker 01:
He didn't want to overturn.

[00:39:05] Speaker 03:
The only thing they argued that made their

[00:39:09] Speaker 03:
defense is objectively reasonable is that they have this one other displaceable on claim construction and a piece of evidence that the judge had excluded.

[00:39:17] Speaker 03:
That those were the things that made it reasonable and he said that those are the only legal questions and legally they have no leg to stand on.

[00:39:26] Speaker 03:
So as a result, the jury's determination as to the factual elements is consistent with Barb, right?

[00:39:32] Speaker 01:
That's correct.

[00:39:33] Speaker 01:
They never argued, they waived their arguments on claim construction.

[00:39:37] Speaker 01:
during the Markman hearing and your pre-trial.

[00:39:42] Speaker 01:
So their claim constructions are, when their argument of claim construction, not only is it wrong, but it wasn't even in the case.

[00:39:50] Speaker 01:
What the claim constructions that were presented there in the case are the claim constructions that they agreed to, and under those constructions, they infringed.

[00:39:58] Speaker 01:
What they're trying to do now is rework the claim construction back into them and say, okay, our claim constructions are not infringing

[00:40:06] Speaker 01:
And therefore, the objective of the prong is not met, but they never prevent presented it.

[00:40:11] Speaker 04:
On 822, which is where the district court is discussing the attorney's fee section, which I'm sure you want to get to here.

[00:40:18] Speaker 04:
But in passing, the district court judge in rejecting the attorney's fee says, moreover, some of the positions advanced to trial by defendants had merit.

[00:40:30] Speaker 04:
Do we know what he was talking about there?

[00:40:33] Speaker 01:
Well, I think that when they're talking about the positions, they were talking about possibly damages.

[00:40:42] Speaker 01:
There was a discussion of what actually is happening with respect to the forces.

[00:40:49] Speaker 01:
How is their device structured?

[00:40:51] Speaker 01:
Because on summary judgment motion, Judge Swain was asked to decide all the elements.

[00:40:59] Speaker 01:
The problem with this last element where resilient restorative forces come in,

[00:41:03] Speaker 01:
is that it's hard to visualize on papers.

[00:41:06] Speaker 01:
So that's why she asked or she decided that should be brought to the jury.

[00:41:12] Speaker 01:
So during the trial, there was demonstration of what the umbrella is and the jury had the ability to see it, which is something that the district court judge didn't have in front of her when she was ruling on summary judgment.

[00:41:29] Speaker 02:
So can you explain, please?

[00:41:32] Speaker 02:
why the position that they took about the resilient forces at trial is not just wrong, but objectively unreasonable.

[00:41:43] Speaker 01:
Okay.

[00:41:45] Speaker 01:
I can, Your Honor.

[00:41:47] Speaker 01:
At A271, this is the patent itself.

[00:41:57] Speaker 01:
Column four, line 17 through 25.

[00:42:03] Speaker 01:
This passage refers to the umbrella reflector shown in figure one on page 269 of the pattern.

[00:42:13] Speaker 01:
And what it discusses is the idea that when you open the umbrella and it passes the plane, what are called death center plane, and it goes past that point, the forces of the umbrella push the stretchers in

[00:42:32] Speaker 01:
and once they're pushed in, you can't open the umbrella.

[00:42:36] Speaker 01:
There's a force now you have to overcome to close it.

[00:42:38] Speaker 01:
So once you open it, it sits there open, now you have to overcome to close it.

[00:42:43] Speaker 01:
If you look at the passage in the patent, it says that the stretchers are dimensioned in such a way that you can get to that point, because if the stretchers are too long, you'll stop before the death center.

[00:42:55] Speaker 01:
If the stretchers are short enough, you'll get straight through it, and it says the

[00:43:01] Speaker 01:
I'm going to read through the pattern.

[00:43:08] Speaker 01:
The construction is dimensioned such that sliding means can be slightly moved beyond this position corresponding to the dead center of the articulated levers toward the bearing body so as to engage the ladder.

[00:43:20] Speaker 01:
As a result of the restoring forces, the forces are pushing the sliding means.

[00:43:27] Speaker 01:
and the impact of the bearing body, the sliding means is reliably retained in this position shows which is the open position.

[00:43:36] Speaker 01:
And that's exactly what this claim term is talking about.

[00:43:38] Speaker 01:
Now, this description refers to figure one.

[00:43:41] Speaker 01:
That's exactly the structure that they have, except that they're arguing and they were arguing in the district court that somehow you have to ignore this passage and the fact that it's the sliding means, it's touching the bearing body, somehow it creates a non-infringement argument.

[00:43:58] Speaker 01:
But the passage explains that the resilient restorative forces pressing against the bearing body retain the sliding in that position.

[00:44:10] Speaker 01:
So when you have to open it, close the umbrella, excuse me, you have to overcome them.

[00:44:14] Speaker 01:
That's all the claim one element requires.

[00:44:17] Speaker 01:
And that's exactly what they had.

[00:44:19] Speaker 01:
So the issue was, what is the resilient restorative forces?

[00:44:23] Speaker 02:
And they had an argument about

[00:44:26] Speaker 02:
essentially not a bearing body doing the blocking, but something else.

[00:44:30] Speaker 02:
And I think your point is it really doesn't matter because the claim is just about something stopping the restoring forces.

[00:44:39] Speaker 02:
It doesn't matter what stops it.

[00:44:41] Speaker 01:
That's correct.

[00:44:41] Speaker 01:
And as a matter of fact, what they had is they had a, what we would call the bearing body, they had a structure, they had another structure fitted into it to extend past, slightly past the tip.

[00:44:52] Speaker 01:
So whether you go slightly below the tip or you go up to it, it doesn't matter because eventually, whatever that structure is, that becomes the bearing body and you're touching against it.

[00:45:04] Speaker 01:
Their position on non-infringement was unreasonable.

[00:45:06] Speaker 01:
It was difficult to see on summary judgment because, again, we're talking about forces and it's hard to visualize.

[00:45:14] Speaker 01:
But that's really what the trial was about.

[00:45:17] Speaker 01:
showing what's in the umbrella, how the forces are acting, and what's in their device.

[00:45:23] Speaker 01:
Mr. Kritchover, the expert for BreezeAid, actually pointed to infringement by looking at their device.

[00:45:30] Speaker 01:
He didn't do it by pointing to the slides, by pointing to demonstrators.

[00:45:34] Speaker 01:
Demonstrators are basically showing what is happening in the umbrella, exactly what I just described.

[00:45:39] Speaker 01:
That was in his expert report.

[00:45:41] Speaker 01:
That was in his claim chart.

[00:45:43] Speaker 01:
he's basically showing the jury, this is how you open the umbrella, this is how the sliding means, or the body slides along the tube, this is what happens when you get to the point of zero death center, and this is what happens when you go slightly past it.

[00:46:00] Speaker 01:
That's in the patent, it's in figure one, it's in their product.

[00:46:04] Speaker 01:
They never argue that the product doesn't have that structure.

[00:46:08] Speaker 04:
We're already way beyond time.

[00:46:10] Speaker 04:
You want to take, like, really a minute to discuss your cross appeal, or we can rest on the briefs if that's okay.

[00:46:18] Speaker 01:
Your Honor, there are three elements why we believe that the Judge Conte decision on the attorneys' fees was error of law.

[00:46:28] Speaker 01:
Number one, he applied the wrong legal standard for exceptional case under the Actain standard.

[00:46:35] Speaker 04:
But he says that at the beginning.

[00:46:38] Speaker 04:
He sets forth what was the standard at the time, correctly what was the standard at the time, and no one replies.

[00:46:43] Speaker 04:
But his analysis seems to be in line with octane, does it not?

[00:46:47] Speaker 04:
I mean, he talked about the totality of the circumstances.

[00:46:50] Speaker 04:
And his analysis itself seems to me not that out of line with what he would do if he had octane before him now.

[00:46:59] Speaker 01:
Your Honor, he was focusing on sanctionable conduct.

[00:47:02] Speaker 01:
there was a litany of non-sanctionable conduct or litigation misconduct for which defendants were not sanctioned.

[00:47:13] Speaker 01:
And if I can just cite to some of the... Well, if it's in your brief, I don't know that you want to... Actually, there were two motions, even one motion to compel which defendant filed in which Judge Dahlin just said that these arguments were disingenuous

[00:47:32] Speaker 01:
are baseless and lack merit.

[00:47:35] Speaker 01:
This was part of their motion to compel, which it had five or six elements in there.

[00:47:41] Speaker 01:
On one element it says, your arguments are so far off base that I find them disingenuous.

[00:47:47] Speaker 01:
And that was one motion.

[00:47:50] Speaker 01:
There was another motion where they argued that somehow plaintiffs were precluded from taking further discovery.

[00:47:57] Speaker 01:
They thought that they had the ability to have discovery and it was extended to both

[00:48:02] Speaker 01:
them and the plaintiffs where it was the order that Judge Dollinger issued was clear that because of their misconduct, plaintiff discovery was only plaintiff discovery was going to be extended by 30 days, not theirs.

[00:48:18] Speaker 01:
They argued in front of Judge Dollinger that wasn't the case, they misunderstood it, and he chastised them for it.

[00:48:23] Speaker 01:
So your arguments here are completely false, completely false, and this is

[00:48:29] Speaker 04:
part of, he actually called it... Did you ask for sanctions?

[00:48:33] Speaker 01:
We didn't ask for sanctions.

[00:48:34] Speaker 01:
We basically, this was part of when they didn't produce financial documents.

[00:48:37] Speaker 01:
He admitted the financial documents and it was part of the argument.

[00:48:41] Speaker 03:
So... So what you're saying is even if you buy the proposition that one sanctions and some attorney's fees were already shifted, that to the extent that there was other misconduct where there was no earlier shifting of attorney's fees that they could support

[00:48:58] Speaker 01:
That's correct, Your Honor.

[00:49:04] Speaker 01:
We actually told the court that we're not looking for compensation for the conduct that was sanctioned.

[00:49:10] Speaker 01:
We're looking for the attorney's fees minus whatever we already compensated.

[00:49:16] Speaker 01:
The elements where Judge Dillinger didn't sanction them, they found their conduct to be unreasonable.

[00:49:20] Speaker 01:
If I can decide to A-121,

[00:49:27] Speaker 01:
A119, meritless, entirely disingenuous arguments.

[00:49:32] Speaker 01:
A121, defendant's omission is blatant misleading and unprofessional.

[00:49:39] Speaker 01:
This was not a conduct that was sanctioned because it was part of their motion.

[00:49:44] Speaker 01:
He actually, in one of the motions that Judge Dellinger, one of the orders that Judge Dellinger issued, he actually said that some of this can come up to a threshold of Rule 11.

[00:49:54] Speaker 01:
if it was to be pursued, but he didn't go any further.

[00:49:57] Speaker 01:
And plaintiffs didn't pursue rule 11 motion.

[00:50:00] Speaker 01:
But in addition to the sanctions that Judge Conti was looking at, there was enough unreasonable conduct for which they were not sanctioned that didn't come into consideration at the court by Judge Conti.

[00:50:15] Speaker 04:
All right.

[00:50:16] Speaker 04:
Well, we'll restore a minute for rebuttal.

[00:50:18] Speaker 04:
And we've already restored some of your time.

[00:50:21] Speaker 04:
We'll give you four minutes.

[00:50:24] Speaker 04:
To respond.

[00:50:31] Speaker 00:
First of all, on the willfulness issue, my friend cites passages not from the claim one.

[00:50:37] Speaker 00:
It was from the specification.

[00:50:40] Speaker 00:
Leaves out the last sentence.

[00:50:42] Speaker 00:
Column 4, line 15, line 25 says, in that particular embodiment, any particular clamping or resting means are not required.

[00:50:55] Speaker 00:
That's different than what's in Claim 1.

[00:50:58] Speaker 00:
Claim 1 requires that the resilient restoring forces do provide an arrestment.

[00:51:04] Speaker 00:
Our position was objectively reasonable based on the claim construction by Judge Swain.

[00:51:10] Speaker 00:
She adopted our claim construction where that particular limitation, resilient restoring forces provide an arrestment as shown in Figure 1.

[00:51:20] Speaker 00:
That's in her claim construction order.

[00:51:21] Speaker 00:
Figure 1 shows a gap.

[00:51:23] Speaker 00:
Figure 1 shows a gap.

[00:51:25] Speaker 00:
It doesn't show what's in that passage quoted from the specification, the written description.

[00:51:30] Speaker 00:
That's not the claim.

[00:51:32] Speaker 00:
The claim is what's in play here.

[00:51:37] Speaker 00:
Mr. Ortiz defended and gave very good analysis as to why there was no infringement based on what the one limitation was, that trial.

[00:51:48] Speaker 00:
It's important to note that there's some efforts by the plaintiff, Risa, that the burying body

[00:51:55] Speaker 00:
It can be anything you want.

[00:51:56] Speaker 00:
It can be a bearing body.

[00:51:57] Speaker 00:
It can be two feet out this way or two feet out the other way.

[00:51:59] Speaker 00:
It can be anything.

[00:51:59] Speaker 00:
But it's not.

[00:52:00] Speaker 00:
Claim doesn't allow that.

[00:52:01] Speaker 00:
What does the claim say?

[00:52:03] Speaker 00:
The bearing body is a particular item, and it has to have a ring of articulated joints.

[00:52:10] Speaker 00:
Claim requires the articulated joints to be on the bearing body.

[00:52:13] Speaker 00:
So here you have your bearing body.

[00:52:14] Speaker 00:
Here comes the joints from the stretchers.

[00:52:17] Speaker 00:
At some point, another piece is not the bearing body.

[00:52:22] Speaker 00:
It's out here.

[00:52:24] Speaker 00:
appended on the bearing body, a tube which doesn't contact the joint is not the bearing body.

[00:52:32] Speaker 00:
And so Mr. Ortiz did present a valid and good defense to infringement.

[00:52:39] Speaker 00:
And we know that one reason is Judge Swain denied the summary judgment of infringement based on that limitation, that there was a dispute of fact issue.

[00:52:52] Speaker 00:
On the cross appeal, I think it's important to note the facts.

[00:52:59] Speaker 00:
We did produce the 180 umbrella.

[00:53:02] Speaker 00:
Time and again, there's a reference to most of it.

[00:53:04] Speaker 00:
The umbrella, the parts, what we had.

[00:53:07] Speaker 00:
Right.

[00:53:07] Speaker 00:
The parts, other parts, we didn't have.

[00:53:09] Speaker 03:
But it is true that Judge Donger, even the order where you were sanctioned, he pointed out unprofessional

[00:53:18] Speaker 03:
and improper conduct both on your part personally and on the part of your client in multiple places where he said, but I'm not going to rely on those things here for sanctions.

[00:53:29] Speaker 03:
They might provide a basis for rule 11 sanctions later or they might provide some ability to make credibility determinations later, but I'm not going to rely on those things.

[00:53:40] Speaker 03:
They're out there.

[00:53:41] Speaker 03:
I find them all improper conduct, but I'm not going to sanction those.

[00:53:45] Speaker 03:
Shouldn't the court have considered those things along with the other times where they found your position to be disingenuous and essentially virtually false?

[00:53:58] Speaker 03:
Shouldn't the court have considered those things in determining whether to award fees?

[00:54:02] Speaker 00:
I think he did.

[00:54:04] Speaker 00:
First of all, many of those statements are based on the ruling's assumption that we didn't produce the umbrella, the 180 umbrella.

[00:54:11] Speaker 00:
Of course, we did.

[00:54:13] Speaker 00:
It's also based on the fact that

[00:54:14] Speaker 00:
We hadn't produced responsive documents.

[00:54:16] Speaker 03:
That's chippis.

[00:54:17] Speaker 00:
We had.

[00:54:17] Speaker 03:
Four judges said you didn't.

[00:54:20] Speaker 03:
I mean, everybody to have considered this in this case so far made the factual finding that you didn't properly produce and even thank you for that.

[00:54:28] Speaker 03:
You haven't appealed that determination.

[00:54:31] Speaker 00:
But we did file an opposition that showed that it was erroneous.

[00:54:37] Speaker 00:
Remember, this came up on the reply originally.

[00:54:40] Speaker 00:
We didn't have the opportunity to respond to that reply.

[00:54:42] Speaker 00:
And when we did, and the opposition filed January 2011, we explained that the reply was wrong.

[00:54:47] Speaker 00:
We did produce responsive documents.

[00:54:49] Speaker 00:
It was filed 14 days after his order in January.

[00:54:54] Speaker 00:
And then we appealed his later order issuing monetary statements.

[00:54:57] Speaker 03:
You did not appeal any of the sanctions award, any of the findings with respect, at least with respect to the underlying discovery violation.

[00:55:09] Speaker 03:
How can you argue now to us that you didn't commit the very discovery violations that several magistrate judges and district judges found that you committed?

[00:55:18] Speaker 00:
Because it came up on the reply argument, which we never had an opportunity to respond to.

[00:55:23] Speaker 00:
And when we did respond in January, we showed with facts why documents were produced.

[00:55:29] Speaker 00:
And so that's why, Your Honor, we were never given the opportunity.

[00:55:33] Speaker 00:
And when we did file our opposition in January, 14 days after the order,

[00:55:37] Speaker 00:
We explained that responsive documents had been produced.

[00:55:40] Speaker 00:
That's important to note.

[00:55:42] Speaker 00:
District court order said produce the prior umbrella.

[00:55:46] Speaker 00:
That's all we had, the umbrella.

[00:55:47] Speaker 00:
We produced that.

[00:55:48] Speaker 00:
We didn't have the tubes, the lights.

[00:55:52] Speaker 00:
We didn't have that.

[00:55:53] Speaker 00:
So we produced the umbrella.

[00:55:54] Speaker 00:
That's what district court order says at 8222.

[00:55:56] Speaker 00:
We did produce responsive documents.

[00:55:59] Speaker 00:
That came up on the reply argument.

[00:56:01] Speaker 00:
We fundamentally at least are able to respond to that reply argument.

[00:56:06] Speaker 00:
And when we did, the magistrate judge apparently overlooked it.

[00:56:10] Speaker 00:
We raised it again after the issue of the monetary sanctions with the district court and explained it.

[00:56:15] Speaker 00:
We had produced the documents.

[00:56:18] Speaker 00:
District court would look that also.

[00:56:20] Speaker 00:
We think that was error.

[00:56:22] Speaker 00:
On the cross appeal, it's important to note.

[00:56:26] Speaker 04:
One final thought.

[00:56:27] Speaker 00:
Defender Ortiz factually and credibly challenged Brice's case.

[00:56:36] Speaker 00:
On summary judgment, in his declaration, he's demonstrated factually.

[00:56:41] Speaker 00:
Now, although the district court struck part of his declaration, he demonstrated in that declaration there was no infringement.

[00:56:48] Speaker 00:
He also demonstrated no infringement at trial.

[00:56:51] Speaker 00:
This is trial testimony.

[00:56:53] Speaker 00:
Now, we've got to relate to what we were faced with.

[00:56:55] Speaker 00:
We took a 36th deposition, Mr. Breese, to ask him the basis for the infringement contention.

[00:57:02] Speaker 00:
This is in our brief.

[00:57:03] Speaker 00:
We asked him, what's the basis for the assailant contention?

[00:57:05] Speaker 00:
He couldn't answer.

[00:57:06] Speaker 00:
This was during discovery.

[00:57:08] Speaker 00:
And we took his deposition in October 2010.

[00:57:11] Speaker 00:
Of course, we thought discovery was extended through October.

[00:57:14] Speaker 00:
We were taking depositions as ordered by the Magistrate Judge in October 2010.

[00:57:20] Speaker 00:
It would make sense that discovery would be extended for both parties.

[00:57:23] Speaker 00:
Thank you, Your Honor.

[00:57:24] Speaker 04:
Thank you.

[00:57:24] Speaker 04:
We have the argument.

[00:57:25] Speaker 04:
We've got a minute left to respond to this.

[00:57:30] Speaker 01:
Your Honor, just quickly, with respect to this new argument about umbrella not being a reflector,

[00:57:35] Speaker 01:
that the judge didn't know what he was... Well, wait a minute.

[00:57:38] Speaker 04:
That's not dealing with the cross-appeal.

[00:57:39] Speaker 04:
You get rebuttal time on the cross-appeal, so limit it to that, please.

[00:57:43] Speaker 04:
Okay.

[00:57:43] Speaker 01:
On the cross-appeal, we believe that the judge didn't apply the right legal principle for exceptional case, did not... You look at all of the conduct that was unreasonable, only limited to sanctionable, in other words, did not look at the totality of the circumstances.

[00:58:03] Speaker 01:
And under this scenario,

[00:58:05] Speaker 01:
The district court's decision should be reversed.

[00:58:12] Speaker 01:
The court should plan an exceptional case or at least remand for further consideration.

[00:58:16] Speaker 04:
Thank you.

[00:58:17] Speaker 01:
Thank you.

[00:58:18] Speaker 04:
Thank you, counsel.

[00:58:19] Speaker 04:
The case is submitted.

[00:58:21] Speaker 04:
We're going to take a brief recess now.