[00:00:00] Speaker 01:
Appeal from the Western District of North Carolina, case number 141675.

[00:00:06] Speaker 01:
Mr. McKeon, you want two minutes for rebuttal?

[00:00:12] Speaker 01:
Yes, Your Honor, thank you.

[00:00:26] Speaker 00:
Good morning.

[00:00:27] Speaker 00:
May it please the court.

[00:00:28] Speaker 00:
I would like to talk about

[00:00:30] Speaker 00:
three issues today and start with jurisdiction.

[00:00:33] Speaker 00:
Although the district court properly recognized that personal jurisdiction is a threshold issue, the court jumped right over that issue to get to the preliminary injunction.

[00:00:44] Speaker 00:
And what we know now is that 10 months after joining LG's battery business, the May 21st order of the district court confirms they did not have

[00:00:56] Speaker 00:
personal jurisdiction over the Korean LG entity, LGC, at the time it issued the injunction order.

[00:01:04] Speaker 01:
What do we do?

[00:01:05] Speaker 01:
I mean, clearly, it is a threshold question.

[00:01:08] Speaker 01:
It's an important issue.

[00:01:09] Speaker 01:
Court shouldn't enter injunctions when it doesn't have jurisdiction, or at least substantial likelihood of jurisdiction over a party.

[00:01:17] Speaker 01:
But the court has now said that it has jurisdiction.

[00:01:23] Speaker 01:
If we send it back on that ground,

[00:01:26] Speaker 01:
Don't we just see it again in a month?

[00:01:29] Speaker 00:
Well, first of all, Your Honor, I do believe that the order needs to be vacated as a procedural matter, because we know it can hamper the time the order was issued.

[00:01:37] Speaker 00:
But you are right, there is a certain logistical problem here.

[00:01:42] Speaker 03:
Would you rather have us reverse the preliminary injunction on the merits?

[00:01:47] Speaker 03:
That way we don't have to see it again, assuming we agree with you.

[00:01:51] Speaker 03:
rather than sending it back for another trial?

[00:01:54] Speaker 00:
Well, there's two things the court can do.

[00:01:56] Speaker 00:
One is the court, of course, can reverse on the merits and send it back down and we go to trial on the merits.

[00:02:03] Speaker 00:
And certainly that would be the decision way to proceed.

[00:02:05] Speaker 00:
The second thing is, of course, the court can take jurisdiction over the preliminary injunction order as a matter of a pendant appellate jurisdiction that's present for that.

[00:02:16] Speaker 00:
review that we can have further briefing and we brief that up and the court can review that because we certainly continue to challenge personal jurisdiction over the LG parties in North Carolina and the court can deal with that now in conjunction with this appeal and the problem has been created of course because the court didn't treat it as a threshold issue and here we are on appeal arguing a preliminary injunction when we believe that there is no personal jurisdiction over either LG entity

[00:02:41] Speaker 00:
And the court had created this problem.

[00:02:43] Speaker 00:
We warned the court.

[00:02:44] Speaker 00:
We've invited the court to address personal jurisdiction first, and it didn't.

[00:02:52] Speaker 01:
I have trouble with the concept that personal jurisdiction isn't a threshold jurisdictional question.

[00:02:58] Speaker 01:
And I know that there are several circuits, Fifth Circuit and others, that seem to say that.

[00:03:02] Speaker 01:
It seems that in our circuit, we just simply treat it as part of likelihood of success and say, instead of having to address it first, you have to at least

[00:03:11] Speaker 01:
find that there's a substantial likelihood.

[00:03:13] Speaker 01:
Is that how you understand?

[00:03:15] Speaker 01:
I mean, there's clearly a circuit split on this.

[00:03:17] Speaker 00:
There is.

[00:03:18] Speaker 00:
The court has used that language before about likelihood finding it to be likely.

[00:03:23] Speaker 00:
I do think, frankly, that that conflicts with Supreme Court precedent that says you have to have personal jurisdiction over a party before you enjoin it.

[00:03:32] Speaker 00:
And that's clear.

[00:03:33] Speaker 00:
And therefore, you can't get into a likelihood issue.

[00:03:36] Speaker 00:
You have to determine it.

[00:03:37] Speaker 00:
And of course, it's got to be raised by the party.

[00:03:38] Speaker 00:
And it was raised by us.

[00:03:40] Speaker 01:
But if that's the case, then arguably we don't even get to the merits because we have to look at not just our jurisdiction, but the lower court's jurisdiction.

[00:03:49] Speaker 01:
If the lower court didn't have jurisdiction to even enter the injunction, then it has to be set aside and sent back.

[00:03:55] Speaker 00:
That's correct, Your Honor.

[00:03:56] Speaker 00:
I think that at a minimum, if the court were going to refrain from getting to the merits, it needs to do that.

[00:04:02] Speaker 00:
There is the logistical issue created by the fact that the court waited 10 months to rule on it, that we are now here.

[00:04:09] Speaker 00:
and the preliminary injunction is before the court, we believe that should be reversed.

[00:04:14] Speaker 00:
It's not sustainable on the record, and it should be reversed.

[00:04:17] Speaker 00:
We should not be going back down and redoing preliminary injunction.

[00:04:20] Speaker 00:
We should be proceeding towards trial.

[00:04:22] Speaker 00:
That's what we believe based on this record.

[00:04:24] Speaker 01:
OK.

[00:04:24] Speaker 01:
There's another procedural question, and that is, can a court enter an injunction without articulating the basis for its finding of substantial likelihood of success on the merits?

[00:04:36] Speaker 00:
Of course not.

[00:04:37] Speaker 00:
Rule 52 requires the court

[00:04:39] Speaker 00:
in, for an injunction, state the findings specifically.

[00:04:43] Speaker 01:
And so why isn't it enough to just say, I credit their infringement charge?

[00:04:48] Speaker 00:
Well, Your Honor, there are disputed issues.

[00:04:50] Speaker 00:
There's at least four claims instruction issues, highly contested, that we raised, and each one leads to non-infringement.

[00:04:58] Speaker 00:
It's accepted.

[00:04:59] Speaker 00:
The digital court didn't even deal with that.

[00:05:01] Speaker 00:
And if you look at the claim charge that your reference is, they don't talk about claim

[00:05:06] Speaker 00:
There was no claim charts done by Selgard in their opening papers, including the expert declaration of Dr. White and the claim charts.

[00:05:13] Speaker 00:
So even if you were to credit the court with looking at them and adopting them, you still have hotly contested issues and non-arrangement.

[00:05:21] Speaker 00:
And I will also mention, Your Honor, invalidity.

[00:05:24] Speaker 00:
We presented a substantial question of invalidity as to 586 patent.

[00:05:29] Speaker 01:
And it included- Is it true that you didn't raise it to your cert reply?

[00:05:33] Speaker 00:
No, that's not true, Your Honor.

[00:05:34] Speaker 00:
If you look at the record,

[00:05:37] Speaker 00:
Um, we raised this at, if you look at 8605 of the record, one of our captions in our opening brief is there are substantial questions of the 586 patents in validity.

[00:05:49] Speaker 03:
But then you have a very cursory paragraph that says, see the, the petitions filed at the board.

[00:05:54] Speaker 03:
I mean, is that enough in your view to raise it?

[00:05:56] Speaker 00:
That is enough, your honor.

[00:05:58] Speaker 00:
We have 25 pages and there's two week response time and they did the same thing with their expert.

[00:06:04] Speaker 00:
They attached an expert declaration.

[00:06:06] Speaker 00:
We attached an expert declaration and Dr. Abraham laying out why we believe, he laid out why claim one of the patents was not valid in light of this TOJO reference.

[00:06:17] Speaker 00:
And now currently there's four IPRs pending at the patent office.

[00:06:21] Speaker 00:
They've been instituted with a decision due in October.

[00:06:24] Speaker 00:
And the primary reference in all four is the TOJO reference.

[00:06:27] Speaker 00:
Have you asked for a stay based on those IPRs?

[00:06:31] Speaker 00:
We have not asked for a stay at this time.

[00:06:33] Speaker 00:
Um, you know, because the injunction issue is, is, uh, at this point, you know, needs to be resolved in our view.

[00:06:39] Speaker 00:
Um, so the, the, so not only do we have the non-infringement issues and the claim construction issues associated with them that was not addressed by the judicial court.

[00:06:47] Speaker 01:
Well, you all both spend a lot of time in your brief, you know, telling us about these non-infringement and validity issues, but can we really reach those in the first instance?

[00:06:55] Speaker 00:
Well, what I, what I do think is that there are issues that the court could address.

[00:07:02] Speaker 00:
and to resolve the preliminary injunction issue and reverse it on the record.

[00:07:08] Speaker 00:
And because I think it wouldn't be efficient for this court to simply vacate and send it back down and come right back up again.

[00:07:16] Speaker 00:
You know, the court would flesh out the viewpoints the court had on these various issues.

[00:07:21] Speaker 00:
Now, we think we should prevail on the substance of the non-offensive and invalidity argument.

[00:07:28] Speaker 00:
And at a minimum, there's going to be no likelihood of success.

[00:07:31] Speaker 00:
And we believe the court should resolve that here while it's... Can we do that if we don't have jurisdiction?

[00:07:38] Speaker 00:
Well, again, Your Honor, we're in this situation because of what the judge did below.

[00:07:45] Speaker 00:
But clearly, if there's an outright reversal of the preliminary injunction, then we go back down and then we would have avoided the situation where LG was enjoined when the court didn't have any jurisdiction.

[00:07:59] Speaker 00:
That issue is avoided if there's a complete reversal.

[00:08:02] Speaker 00:
And that's what we would, of course, invite the court to do.

[00:08:06] Speaker 01:
Can we talk about the irreparable harm?

[00:08:10] Speaker 01:
Yes.

[00:08:11] Speaker 01:
I understand your argument.

[00:08:12] Speaker 01:
You're saying that the harm flows, to the extent there's any harm, it flows from the state law claims and from the fact that LG doesn't want to do business anymore, and that it doesn't flow from the infringement.

[00:08:28] Speaker 01:
But obviously the district court felt that the two were tied together because if you were, if you couldn't distribute infringing products or allegedly infringing products, then by definition, his view was you'd have to go back to your relationship with Selgard.

[00:08:46] Speaker 01:
So how do you respond?

[00:08:47] Speaker 00:
Well, there's a few issues there.

[00:08:49] Speaker 00:
First of all, the president of this court requires a strong causal nexus.

[00:08:54] Speaker 00:
And in order to test that proposition, you ask yourself is LG

[00:08:59] Speaker 00:
is enjoined today.

[00:09:02] Speaker 00:
What happens to Selgar?

[00:09:05] Speaker 00:
Selgar would be in the exact same position tomorrow as it is today.

[00:09:09] Speaker 00:
And that's because LG would be enjoined, not making batteries, and presumably they'd get a new contract.

[00:09:16] Speaker 00:
Well, but if that's the use of the injunction, if the use of the patent injunction is specific in performance, we have a real problem with that.

[00:09:25] Speaker 00:
Because that's not what the patent injunction is for.

[00:09:28] Speaker 00:
It's an exclusive right.

[00:09:30] Speaker 00:
It is not to enforce commercial relationships.

[00:09:33] Speaker 00:
As the court said in the Apple decision, the point of the causal nexus requirement is you don't want to leverage the patent for improper commercial purpose.

[00:09:43] Speaker 00:
That's exactly what the district court did below.

[00:09:47] Speaker 03:
Even assuming they win their patent infringement case.

[00:09:50] Speaker 03:
They can't get an order from the district court ordering you to buy product from them.

[00:09:55] Speaker 03:
Can they?

[00:09:56] Speaker 00:
They cannot.

[00:09:56] Speaker 03:
At most they can get damages or a license or a reasonable royalty rate.

[00:10:02] Speaker 00:
They could actually do that.

[00:10:03] Speaker 00:
Right.

[00:10:04] Speaker 00:
And if they went, we went to trial and if we fail on all the claims, we believe an injunction would be improper and there would be a damages case.

[00:10:12] Speaker 00:
And in fact, this is a damages case.

[00:10:14] Speaker 02:
Is Salesforce the sole supplier?

[00:10:17] Speaker 00:
CELGAR, CELGAR is a tiered supply chain and at the tier that CELGAR is at, tier two, there's a lot of competitors.

[00:10:33] Speaker 00:
And LG is tier one.

[00:10:34] Speaker 00:
We supply to Apple, we supply to Dell, HP, we supply to General Motors, Ford, Chrysler.

[00:10:41] Speaker 00:
We're supplying to the OEM, they're supplying to us.

[00:10:44] Speaker 00:
That's why the injunction makes no sense here.

[00:10:46] Speaker 00:
As far as we're aware,

[00:10:48] Speaker 00:
This court has never sustained an injunction, preliminary injunction, post eBay, where the parties before it weren't direct competitors.

[00:10:56] Speaker 00:
And that's because the analysis completely breaks down.

[00:10:59] Speaker 00:
And you can't get that causal nexus that's required.

[00:11:03] Speaker 00:
And the harm is simply not there.

[00:11:04] Speaker 00:
And I think the fact that they amended the complaint to add state law claims, it's very telling.

[00:11:11] Speaker 00:
Because this is about a commercial relationship that went sour.

[00:11:15] Speaker 00:
That's what happened.

[00:11:16] Speaker 00:
That's what's going on here.

[00:11:18] Speaker 00:
And money damages surely will do, not only from the state law claims, but if there's patent infringement, we don't believe there is, but if there is, it's about money.

[00:11:27] Speaker 00:
It's about a licensing fee.

[00:11:28] Speaker 00:
And in fact, there's a history.

[00:11:30] Speaker 03:
They offered to give you a license before they filed suits and the like.

[00:11:34] Speaker 00:
They've licensed others in the industry, and they've actually offered us a license after the relationship broke down.

[00:11:43] Speaker 00:
And the reasoning in the Paulist Declaration is a statement at 101.

[00:11:47] Speaker 00:
The reasoning is because they wanted to avoid litigation.

[00:11:49] Speaker 00:
They wanted a license.

[00:11:51] Speaker 01:
So was CellGuard your only supplier of the base film before this relationship broke down?

[00:12:00] Speaker 00:
CellGuard was for the EV business, for the vehicle business, yes.

[00:12:05] Speaker 00:
Since 2008, LG was getting supply for the consumer electronics business from other suppliers.

[00:12:14] Speaker 00:
They were not using CellGuard.

[00:12:15] Speaker 00:
So in other words, in 2008,

[00:12:18] Speaker 00:
So the case was filed in 2014, we were allegedly infringing this patent in the CE business, and they did nothing about it.

[00:12:25] Speaker 00:
And now all of a sudden, this injunction is so sweeping, it stops us from selling anything.

[00:12:30] Speaker 00:
Did you assert latches?

[00:12:34] Speaker 00:
We certainly are making that, and we finally have answered the complaint.

[00:12:37] Speaker 00:
We made that argument.

[00:12:38] Speaker 00:
And of course, the paperwork below, we argued that the delay alone is contrary to the notion that there's irreparable harm.

[00:12:47] Speaker 00:
And the fact that they now are claiming there's irreparable harm in the CE business is wholly unsupported by the record.

[00:12:53] Speaker 00:
You will look in vain in this record to find any evidence for irreparable harm with respect to CE business.

[00:12:59] Speaker 00:
They didn't touch that in the district court.

[00:13:01] Speaker 00:
And this injunction is so sweeping, it stops us from selling anything in the CE business.

[00:13:07] Speaker 00:
The Apple, HP, Dell, and others were out, according to this injunction, and all the harms associated with it.

[00:13:14] Speaker 00:
It's a very sweeping injunction and simply not supported by this record, with respect to balancing of the harms and the public interest.

[00:13:26] Speaker 00:
And it gets back, Your Honor, to where you started.

[00:13:30] Speaker 00:
Well, your amicus brief.

[00:13:34] Speaker 00:
Yes, the amicus brief, of course, confirms what we were saying below in the district court, that in joining LG will halt the supply chain.

[00:13:44] Speaker 00:
in these major industries.

[00:13:46] Speaker 00:
And of course, that was not something that district court credited at all.

[00:13:52] Speaker 00:
The way that district court viewed this, and we think it was in a proper way to view it and frame the issue, was that, well, LG would just simply have to pay more.

[00:14:01] Speaker 00:
Or the downstream customers, the customers of Apple and Dell and Ford, they might have to pay a little more for their end products.

[00:14:09] Speaker 00:
That's the way the court viewed it.

[00:14:11] Speaker 00:
But that is not

[00:14:12] Speaker 00:
the proper viewpoint, because that assumes that we're going to get back into a supplier relationship, and it's all about just paying more.

[00:14:20] Speaker 00:
It wasn't about that.

[00:14:21] Speaker 00:
In fact, when the relationship broke down between the parties, Selgard wasn't meeting the supply chain timeline.

[00:14:28] Speaker 00:
Selgard, the quality problems.

[00:14:31] Speaker 00:
And of course, the repricing problems.

[00:14:32] Speaker 00:
There was a lot of reasons why the relationship broke down between the two parties.

[00:14:36] Speaker 00:
And the judges equated it to just paying more for the base film,

[00:14:41] Speaker 00:
And everything would work out.

[00:14:43] Speaker 00:
And it was an improper framing of the issue.

[00:14:45] Speaker 00:
So we urge the court to reverse the preliminary injunction and remand the case to go towards trial.

[00:14:54] Speaker 00:
And then we think you can avoid the personal jurisdiction issue if you do that.

[00:15:00] Speaker 00:
With that, I will reserve the rest of my time.

[00:15:02] Speaker 01:
OK.

[00:15:03] Speaker 00:
Thank you.

[00:15:07] Speaker 05:
Good morning.

[00:15:08] Speaker 05:
Martin Lueck for CellGuard.

[00:15:09] Speaker 05:
May it please the court?

[00:15:11] Speaker 05:
I'd like to start with the irreparable harm.

[00:15:14] Speaker 04:
On page 30 of your red brief, you say LG Chem could purchase separators from CellGuard.

[00:15:24] Speaker 04:
Indeed, that is precisely what LG Chem did during the five years in which it partnered with CellGuard to qualify its EV batteries.

[00:15:33] Speaker 04:
If it did that, you say it could do that.

[00:15:35] Speaker 04:
If it did that, how exactly does that prevent infringement?

[00:15:39] Speaker 05:
There would be an implied license in using the cell guard base film material as the base for the ceramic coated separator.

[00:15:52] Speaker 04:
On the next page, you say, this unsupported statement does not provide any proof of potential harm to affect the public interest analysis.

[00:16:05] Speaker 04:
That references

[00:16:07] Speaker 04:
confidential information contained in the paragraph immediately preceding.

[00:16:12] Speaker 04:
And so I'm not going to say what it was.

[00:16:14] Speaker 04:
But after reading the amicus brief submitted by GM and Ford Motor Company, do you still stand by that statement?

[00:16:25] Speaker 05:
Well, Your Honor, yes.

[00:16:26] Speaker 05:
We believe that LG could purchase the material from CellGuard as it had done for five years.

[00:16:34] Speaker 05:
What's that have to do with patents?

[00:16:37] Speaker 05:
What it has to do with patent is that CellGuard is, you know, the competitor relationship here isn't between, directly between LG and CellGuard.

[00:16:46] Speaker 05:
It's between CellGuard and other suppliers of the base belt.

[00:16:51] Speaker 04:
And if the court... If CellGuard licensed the 586 patent to LG, how does that resolve the problems you raise about, say, loss of workforce?

[00:17:03] Speaker 05:
It resolves it because in every case where Cell Guard made an offer of a license or entered into a license, it did so to make a strategic alliance so that it would sell more of its base film product as a part of the license.

[00:17:20] Speaker 04:
So all of this is damages stuff, isn't it?

[00:17:24] Speaker 04:
It's monetary damages.

[00:17:27] Speaker 05:
I don't agree, Your Honor.

[00:17:28] Speaker 05:
And I'll tell you, the reason I don't agree is to look at the

[00:17:31] Speaker 05:
Broadcom versus Amulux case.

[00:17:34] Speaker 05:
This is a design win market and this is the type of harm that the court found and the court elucidated on the harm in the record in the hearing at page 1457 and 1458.

[00:17:48] Speaker 05:
I'll just make sure I've given the correct citations.

[00:17:54] Speaker 05:
It is 1457 and 1458.

[00:17:56] Speaker 05:
And if the court looks at the Broadcom versus Emulux case, and in particular I'd also suggest that the district court's opinion out of the central district of California is instructive, what's happened here is that CellGuard has been frozen out of the innovation loop by being excluded from the plug-in EV ceramic coated separator market.

[00:18:19] Speaker 05:
And GM's brief goes at page seven and eight directly to this point because it takes a long time

[00:18:27] Speaker 05:
to get one of these batteries certified.

[00:18:30] Speaker 05:
Here, it took 240 weeks once LG had come to CellGuard to get the technology it needed to go to GM for the Chevy Volt, as an example.

[00:18:42] Speaker 05:
And so now CellGuard, and at the time LG came, you can look at the declaration of Mr. Lee.

[00:18:51] Speaker 05:
No one else would work with LG.

[00:18:53] Speaker 04:
How come CellGuard didn't assert its patent

[00:18:57] Speaker 04:
in the five or six years prior.

[00:19:00] Speaker 05:
Because at that time, CellGuard was selling product to LG.

[00:19:04] Speaker 05:
And LG wasn't infringing the patent.

[00:19:06] Speaker 04:
It wasn't infringing the patent at all?

[00:19:08] Speaker 05:
Well, it wasn't infringing the patent in the EV market.

[00:19:11] Speaker 03:
How were they infringing?

[00:19:12] Speaker 03:
They're doing the same thing that they were doing afterwards.

[00:19:16] Speaker 03:
Is it based upon this implied license?

[00:19:19] Speaker 05:
Yes, Your Honor.

[00:19:20] Speaker 03:
Well, if an implied license is good enough previously to solve your patent infringement problems,

[00:19:26] Speaker 03:
Why isn't an actual license enough to solve your patent problems after the fact?

[00:19:31] Speaker 05:
The problem after the fact is that we no longer have access to that market.

[00:19:35] Speaker 05:
We're no longer a part of the design-win calculation.

[00:19:39] Speaker 05:
We're not involved with them.

[00:19:41] Speaker 03:
But how is that connected to the infringement issue?

[00:19:44] Speaker 03:
I mean, if you win your infringement case in the district court, what kind of relief are you going to get?

[00:19:50] Speaker 03:
The district court can't order them to start buying stuff from you, can they?

[00:19:54] Speaker 05:
No, the district court cannot order that.

[00:19:57] Speaker 03:
They can order damages.

[00:19:59] Speaker 03:
They can order ongoing royalties or the like.

[00:20:02] Speaker 03:
So how is that stuff, which is damages, not a reasonable way for you to recover instead of this injunction?

[00:20:12] Speaker 03:
Which essentially is a threat to either you buy from you or you don't get to operate your company.

[00:20:19] Speaker 05:
We believe that the commercial response to the injunction would be to go back to the status quo.

[00:20:24] Speaker 03:
Which is something you can't get if you win your patent case.

[00:20:30] Speaker 05:
The positive injunction, I agree with you.

[00:20:34] Speaker 05:
But the injunction lies nonetheless.

[00:20:37] Speaker 01:
You don't even sell the product that's covered by the patent, correct?

[00:20:44] Speaker 05:
We don't sell it into this market, that's correct.

[00:20:46] Speaker 01:
So what's the likelihood that a court would ever order a permanent injunction if it was going to

[00:20:54] Speaker 01:
prevent the market from ever going forward.

[00:20:57] Speaker 01:
In other words, if that permanent injunction says the product can never be had by anybody and never be offered by anybody, because it's not a situation where you're a competitor and you want to offer the product.

[00:21:10] Speaker 05:
That's correct.

[00:21:10] Speaker 05:
However, there are other battery manufacturers who can take advantage of the patent and who can take advantage of CellGuard's base film and ultimately supply those markets.

[00:21:22] Speaker 05:
And are there any that have?

[00:21:26] Speaker 05:
There are alternatives to the way that it's being done here.

[00:21:30] Speaker 05:
And CellGuard is selling to others.

[00:21:33] Speaker 05:
There is not an alternative specifically today to the Chevy Volt, for example, or to the Ford products.

[00:21:41] Speaker 05:
As I've stated, it takes a long time to get the recertification.

[00:21:45] Speaker 05:
But what happened here was when LG didn't want to use CellGuard any longer, they went to 3M.

[00:21:52] Speaker 05:
or excuse me, they went to GM and they said, we're going to use the senior base film.

[00:21:59] Speaker 05:
GM said, it's the same specs, we'll allow you to do that.

[00:22:02] Speaker 05:
So there are alternatives in the marketplace.

[00:22:05] Speaker 01:
Let's go back to the threshold question.

[00:22:08] Speaker 01:
Yes.

[00:22:08] Speaker 01:
Even if we accept your proposition that somehow this one sentence reference to your infringement charts was enough for purposes of likelihood success on the merits,

[00:22:20] Speaker 01:
How do we let an injunction stand when at the time the court had not even assessed whether it had personal jurisdiction over the defendant and the defendant was challenging whether it had personal jurisdiction?

[00:22:32] Speaker 05:
I certainly agree with the court.

[00:22:33] Speaker 05:
It would have been more ideal had the district court addressed that question in the initial order.

[00:22:40] Speaker 05:
We now have an order in place.

[00:22:43] Speaker 05:
This court has held in previous cases, United Association of Importers

[00:22:48] Speaker 05:
of textiles and apparel that the issue of personal jurisdiction can be addressed in a context such as this on appeal without remand.

[00:22:59] Speaker 05:
And the way I think the court could address it here is by looking to the order that the district court entered.

[00:23:06] Speaker 05:
It's in as docket number 114.

[00:23:10] Speaker 05:
As to LG Chem, our argument is purposeful direct, a purposeful availment

[00:23:17] Speaker 05:
of the forum state.

[00:23:18] Speaker 01:
Do you want us to wrap the personal jurisdiction question into this appeal?

[00:23:24] Speaker 05:
I do, Your Honor.

[00:23:27] Speaker 01:
So I mean, I'm a little surprised by that.

[00:23:31] Speaker 01:
Because if we send the injunction back and the court rethinks it, it may either issue another injunction or not.

[00:23:42] Speaker 01:
If he chooses not to issue another injunction, then you get to ride with his personal jurisdiction decision for the rest of the trial until there's an appeal.

[00:23:50] Speaker 05:
Well, here's what I would suggest is a practical matter, Your Honor.

[00:23:54] Speaker 05:
If the court is considering a remand, I would suggest a remand with some direction.

[00:24:00] Speaker 05:
The personal jurisdiction issue certainly is one that the court could reconsider if the case were to be remanded for further findings, for example.

[00:24:11] Speaker 05:
On infringement and at that time we would, uh, you know, we would make our arguments.

[00:24:17] Speaker 05:
I knew, and hopefully if this case came back up, then all of that would be in front of the court at the same time.

[00:24:24] Speaker 01:
Or you're saying, no, I'm not familiar with the case where, where we decided that we can do it.

[00:24:30] Speaker 01:
On appeal for the, in the first instance, but you're saying that perhaps we have asked for additional briefing on the personal jurisdiction question right now.

[00:24:39] Speaker 05:
Well, it creates a practical issue for the court, given that the court below didn't rule until May.

[00:24:47] Speaker 05:
We addressed the personal jurisdiction issue at pages 34 and 35 of our red brief, specifically on the case that I just quoted, the US Association of Importers of Textiles and Apparel.

[00:25:00] Speaker 05:
And the facts, I think, are fairly well laid out.

[00:25:04] Speaker 05:
And they're also supported by what

[00:25:06] Speaker 05:
The district court found a page 39 of docket submission 114.

[00:25:11] Speaker 05:
So I believe that this court wished to exercise its discretion on the first instance while not ideal, not regular.

[00:25:20] Speaker 05:
It has been done before in that context and could do so here.

[00:25:24] Speaker 04:
So supposing we determine that there was no personal jurisdiction, can we even address the propriety of the preliminary injunction?

[00:25:37] Speaker 05:
If you were to determine that there were no personal jurisdiction as opposed to sending it back to the court for further findings, there's no personal jurisdiction.

[00:25:45] Speaker 05:
There's no jurisdiction.

[00:25:47] Speaker 05:
And, um, cases over for you anyway.

[00:25:54] Speaker 03:
And you think we can get to that question now?

[00:25:57] Speaker 03:
I'm a little confused by that or why you'd even agreed to that.

[00:26:00] Speaker 03:
I mean, I assume you're confident about your position, but it seems like

[00:26:06] Speaker 03:
You would rather, because that order was made after the appeal, it's not before us.

[00:26:11] Speaker 03:
We don't have that before us.

[00:26:13] Speaker 03:
Are you saying that somehow we can just sweep it all in?

[00:26:17] Speaker 05:
Well, the brief we submitted was before this order came out.

[00:26:21] Speaker 05:
And so the case that I cited to the court did not have the circumstance your honor is referring to.

[00:26:28] Speaker 05:
Namely, appeal and then the order arising after the case has been submitted.

[00:26:36] Speaker 03:
So it puts this court in a difficult position in terms of... Well, it would seem pretty irregular for us to review that personal jurisdiction order when it's not part of the appeal.

[00:26:48] Speaker 05:
And I agree.

[00:26:50] Speaker 05:
And so the argument that we made before this order was issued is that you can look at the record that was created, the record that was before the court below, and your personal jurisdiction is apparent.

[00:27:07] Speaker 05:
All right, let me just briefly address the infringement issue.

[00:27:11] Speaker 05:
And it is, while the court did not make lengthy reference to its findings in the order on likelihood of success, what was before the court was the declaration of the expert white and three supporting claim charts supporting claim one.

[00:27:33] Speaker 05:
There was no corresponding declaration opposing infringement that was submitted

[00:27:37] Speaker 05:
by LG in this case.

[00:27:40] Speaker 05:
And so what the court was confronted with was basically the point of view of one party, adequately supported.

[00:27:47] Speaker 05:
The only issues that were raised were four claim construction issues.

[00:27:51] Speaker 05:
There was no need for the court to reach those.

[00:27:54] Speaker 05:
In every instance, it was an attempt to read a limitation into the claim.

[00:27:59] Speaker 05:
I can go through them briefly in anode.

[00:28:02] Speaker 05:
It was an attempt to read.

[00:28:04] Speaker 01:
Wait.

[00:28:05] Speaker 01:
Court didn't reach them.

[00:28:06] Speaker 01:
Are you saying that you were willing to stipulate to the proposed construction by the other side?

[00:28:13] Speaker 05:
No.

[00:28:14] Speaker 01:
So you're saying the court did reach them?

[00:28:16] Speaker 05:
I'm saying that, impliedly, the court accepted the claim constructions of Selgard.

[00:28:22] Speaker 05:
Impliedly?

[00:28:24] Speaker 05:
That's what I'm saying, Your Honor.

[00:28:25] Speaker 01:
And that's not good for you, right?

[00:28:27] Speaker 05:
Well, you know, in accordance with this court's decision in Reebok,

[00:28:31] Speaker 05:
Even where there aren't explicit findings, if the... Well, where there are none?

[00:28:39] Speaker 05:
There were no statements as to the claim construction issues.

[00:28:42] Speaker 05:
That is correct, Your Honor.

[00:28:44] Speaker 04:
That's not what Reebok says.

[00:28:46] Speaker 05:
Well, Reebok says it has to be adequately supported by the evidence.

[00:28:49] Speaker 05:
This court looks at claim construction de novo.

[00:28:53] Speaker 05:
I think you can look at each of these four claim terms and see that the arguments that have been presented are not supported

[00:29:01] Speaker 05:
in the following sense.

[00:29:02] Speaker 05:
With anode, they're trying to read the specification into the claim.

[00:29:06] Speaker 05:
Same is true with the claim term, ceramic composite layer.

[00:29:17] Speaker 05:
In both cases, the specification says a column four, line 33 through 37.

[00:29:24] Speaker 05:
That reference should be made to the appended claims rather than to the foregoing specification and claims

[00:29:29] Speaker 05:
Broadly, in the case of the matrix material and adapted to at least blocked and dry growth, there's nothing in the patent that supports.

[00:29:39] Speaker 01:
So you're saying that we can do claim construction for the first instance on appeal if it's easy?

[00:29:46] Speaker 05:
I'm saying that you can review the claim construction positions of the parties and you can affirm the lower court on the claim constructions based upon a straightforward application of plain meaning.

[00:30:03] Speaker 05:
I think I've covered the high points.

[00:30:07] Speaker 05:
If there are no further questions, I'll sit down.

[00:30:09] Speaker 00:
Thank you, Your Honor.

[00:30:12] Speaker 00:
Just a few points, thank you.

[00:30:14] Speaker 00:
I believe Council mentioned that we had no opposing expert declaration.

[00:30:18] Speaker 00:
That's simply not the case.

[00:30:20] Speaker 00:
The Blomberg Declaration at 8, 931 of the record.

[00:30:24] Speaker 00:
Expensive discussion of why we don't infringe based on the claim instructions.

[00:30:29] Speaker 03:
reached the personal jurisdiction right now for the first time when it was, the order was afterwards.

[00:30:35] Speaker 03:
I mean, I understand you'd like us to and rule if we were going to rule in your favor, but it would seem to me very highly irregular for us.

[00:30:42] Speaker 00:
Certainly irregular.

[00:30:43] Speaker 00:
That's for certain.

[00:30:44] Speaker 00:
And that's based on what the district court did below, which is regular.

[00:30:46] Speaker 00:
But there is, you know, this doctrine of the pendant and talent jurisdiction where you can grab jurisdiction over this order that otherwise is not appealable.

[00:30:56] Speaker 00:
because it's inextricably intertwined with the injunction order.

[00:31:00] Speaker 04:
We could certainly say that the court erred by not reaching it and granting the injunction.

[00:31:07] Speaker 04:
With that, we could certainly say.

[00:31:08] Speaker 00:
That you could certainly say, and you vacate the injunction.

[00:31:11] Speaker 00:
But what we're urging, of course, is that the court reverse the injunction, to go back down and come back up based on this issue, which it needs to be dealt with, certainly.

[00:31:24] Speaker 00:
But to do that, we think it's inefficient.

[00:31:26] Speaker 00:
to reverse the injunction.

[00:31:29] Speaker 00:
So that's our view on that.

[00:31:31] Speaker 00:
But there is precedent to do that if the court were inclined to do that.

[00:31:34] Speaker 00:
Just a few points on the non-affringement issue.

[00:31:38] Speaker 00:
The record at the stand, it's unrebutted testimony from a declaration we put in from an engineer at A922 of the record that dendrites don't even grow in our batteries.

[00:31:52] Speaker 00:
We don't even have dendrites.

[00:31:53] Speaker 00:
The problem is resolved through other means

[00:31:57] Speaker 00:
And the record also demonstrates that even if they were to grow, they would grow right through our separator, which is very porous.

[00:32:04] Speaker 00:
So on that issue alone, there is no infringement if the court were to reach this issue.

[00:32:10] Speaker 00:
The Broadcom MLS case, that case, there were direct competitors.

[00:32:15] Speaker 00:
The design wins were against direct competitors.

[00:32:18] Speaker 00:
We simply do not have that.

[00:32:20] Speaker 00:
And again, going back to the purpose of the injunctive remedy, it is to maintain

[00:32:26] Speaker 00:
the situation during the penalty of a lawsuit to stop the irreparable harm from occurring.

[00:32:31] Speaker 00:
If an injunction was to enter in this case, it simply would not do that.

[00:32:35] Speaker 00:
And getting back to the disposition and how this court should dispose of this case, this injunction has placed a cloud over LG's business.

[00:32:44] Speaker 00:
It was stayed, fortunately, but it's a cloud over our business.

[00:32:48] Speaker 00:
It's maintaining a cloud over our business and indeed the industry of all our downstream customers.

[00:32:53] Speaker 00:
So we believe that the court

[00:32:54] Speaker 00:
to reach it and reverse it.

[00:32:57] Speaker 00:
And with that, I will sit down.

[00:33:00] Speaker 01:
Thank you.

[00:33:01] Speaker 01:
Case will be submitted.