[00:00:02] Speaker ?:
Sorry, I'm going to read this.

[00:00:22] Speaker 01:
The next case is Chalamault Power Systems versus Alcatel Lucent Enterprise, 2015, 1191, Mr. Greenspoon.

[00:00:43] Speaker 03:
Good morning, Your Honors.

[00:00:44] Speaker 03:
May it please the Court.

[00:00:46] Speaker 03:
I'd like to walk through the errors of fact, law, and judgment

[00:00:51] Speaker 03:
that burdened each and every rationale used by the district court here to award attorneys fees finding the case exceptional.

[00:00:58] Speaker 03:
First, Alcatel in their briefing, they say nothing, nothing about the fundamental misperception by the district court that this case did not involve an argument that power travels over ethernet, in power over ethernet systems.

[00:01:17] Speaker 03:
Then there's the equally wrong belief, also not addressed by Alcatel in their responsive briefing, that RJ45 circuitry could never make up part of an adapter.

[00:01:28] Speaker 03:
These are the first points made by the district court.

[00:01:31] Speaker 03:
They were wrong, and we don't see any briefing from Alcatel denying that they were wrong.

[00:01:35] Speaker 01:
Mr. Greenspoon, the trial court adopted the totality of circumstances approach.

[00:01:44] Speaker 01:
and found on a variety of grounds that this case was frivolous.

[00:01:53] Speaker 01:
That's a pretty high standard to overcome.

[00:01:56] Speaker 03:
And Your Honor, you're absolutely correct.

[00:01:57] Speaker 01:
Bad claim construction that the court said was the worst claim construction ever seen.

[00:02:02] Speaker 01:
Inadequate pre-suit investigation on a lot of grounds.

[00:02:08] Speaker 03:
That's right, Your Honor.

[00:02:09] Speaker 03:
We accept that burden, and we're here because we know that there's an abusive discretion

[00:02:13] Speaker 03:
burdened as an appellant.

[00:02:15] Speaker 03:
And we are, if you will, we're setting them up and knocking them down because there's not a single one that when you scrutinize those rationales, they remain valid and viable.

[00:02:25] Speaker 03:
So, for example, those first two rationales used by the district court, no defense of them from Alcatel.

[00:02:31] Speaker 03:
And if you look at cases from this court, like Molensby Textron and Precision Links for USA Products, when they were confronted by

[00:02:40] Speaker 03:
if you will, a partial reversal of the rationales for the exercise of discretion.

[00:02:44] Speaker 03:
They at least remanded.

[00:02:46] Speaker 03:
So at least a remand is warranted in the context where the first two, we count six rationales, are not being defended by the appellee.

[00:02:55] Speaker 03:
And let's keep going.

[00:02:57] Speaker 02:
The court says in its opinion that when Chalamault defended its infringement contentions, saying a thorough pre-filing investigation

[00:03:08] Speaker 02:
for each of the accused products and so on was separately charted.

[00:03:13] Speaker 02:
Noticing this sentence did not contain a citation, I asked for documents supporting this claim.

[00:03:19] Speaker 02:
In response, Chalomo admitted that not every accused product family was bedded before filing the suit.

[00:03:28] Speaker ?:
How do you deal with this?

[00:03:29] Speaker 03:
Because the one that was named in the complaint had been vetted and charted pre-suit.

[00:03:33] Speaker 03:
That was an error.

[00:03:34] Speaker 03:
That was a mistake by trial counsel to the district court.

[00:03:37] Speaker 03:
That was a misperception that was immediately corrected.

[00:03:40] Speaker 03:
And we show in our briefing there was a letter to the court that immediately corrected that misperception by trial counsel.

[00:03:47] Speaker 03:
What happened during the suit was when new product lines and new families of product were discovered, when interrogatory answers came in, where Alcatel acknowledged 46 different products within something like

[00:03:59] Speaker 03:
seven product families had the same standard capability.

[00:04:03] Speaker 03:
All of that was charted during the suit.

[00:04:06] Speaker 03:
So you're correct, Judge Wallach, to point out that there is a mistake.

[00:04:10] Speaker 03:
There's actually even a second mistake.

[00:04:13] Speaker 02:
And then the court goes through that and says, okay, there was in fact some semblance of a pre-suit investigation.

[00:04:26] Speaker 02:
But then it says, however, that was consistent with a meager effort Chalamault put forth in the rest of the suit.

[00:04:33] Speaker 03:
Those are words in the opinion, Judge.

[00:04:35] Speaker 03:
It's a characterization, though, that when you get underneath the characterization, you find that it's simply not sound.

[00:04:43] Speaker 03:
For example, in our, I can't remember which brief, but one of the briefs, we pointed out, just from the docket sheet alone, you can see that there is the usual amount of discovery being exchanged between the sides.

[00:04:55] Speaker 03:
That's not a patentee sitting on his hands.

[00:04:59] Speaker 03:
In reviewing today I recognize that one of those types of discovery served by the patentee was a request for admission.

[00:05:06] Speaker 03:
Actually two sets of requests for admission.

[00:05:08] Speaker 03:
You don't serve requests for admission unless you expect you're going to use them either to fend off summary judgment or to go to trial.

[00:05:15] Speaker 03:
So this was not a situation where the meager efforts characterization can really hold water.

[00:05:20] Speaker 03:
And I think the meager efforts characterization was also really tainted by this gross misperception by the district court, unexplainable, completely unfathomable, that this case did not involve a plaintiff patentee prepared to prove that power goes over Ethernet.

[00:05:38] Speaker 03:
The products, the standard is called power over ethernet.

[00:05:40] Speaker 03:
It's just incomprehensible that that mistake existed in the district court's fee opinion.

[00:05:46] Speaker 03:
And frankly, that, I believe, infected all of the rest of the perceptions and characterizations by the district court.

[00:05:54] Speaker 03:
So there are two more plain construction positions that the district court hit on.

[00:05:58] Speaker 03:
And I'll set those up and knock them down.

[00:06:01] Speaker 03:
One is that an adapter has to be wireless.

[00:06:06] Speaker 03:
An adapter had to be an infrared or a wireless adapter for it to be considered a so-called quote-unquote adapter of a first type.

[00:06:13] Speaker 03:
Look at what the adapter really was in its preferred volume.

[00:06:20] Speaker 03:
I'm sure you can't see the yellow I just put on the board, but it's in the reply brief as well.

[00:06:24] Speaker 03:
I traced the signal path from the hub, which is 414, to the adapter of a first type, which is 602-1, and back into the network hub.

[00:06:36] Speaker 03:
What you know when you read the description associated with these electrical circuits is that item 602-1 never probes what would be in the empty space over here on the right side of the figure, the rest of that device, never probes the rest of that device to decide am I wireless or not.

[00:06:54] Speaker 03:
That's fundamental.

[00:06:56] Speaker 03:
Look at also, backing this up, look at the dependent claims, claims 9 and 10, and 11.

[00:07:03] Speaker 03:
Those depend from claim eight, which is the one at issue here, which has the word adapter.

[00:07:08] Speaker 03:
The claims nine and 10 call out a wireline protocol, a wireline protocol involved in the claimed invention.

[00:07:15] Speaker 03:
Claim 11 is an alternative to claims nine and 10, and it calls out a wireless protocol as a dependent claim from the independent claim.

[00:07:26] Speaker 03:
That means even more strongly than under principles of claim differentiation,

[00:07:32] Speaker 03:
Both of those phenomena have to be possible, interpreted into the independent claim as possible, both wireline protocols for an adapter of a first type and wireless protocols for an adapter of a first type.

[00:07:47] Speaker 03:
The specification has more.

[00:07:49] Speaker 03:
At the beginning and at the end, there are descriptions in the patent specification which can only be read to show that the so-called desired device

[00:07:58] Speaker 03:
that's associated with the adapter of a first type is a wireline device, not a wireless device.

[00:08:07] Speaker 03:
The recent, the final issue on plane construction was separateness.

[00:08:13] Speaker 03:
This notion of separateness between the user interface connector and the network hub.

[00:08:20] Speaker 03:
And frankly, your honors, the recent PAPS licensing case puts to rest any notion

[00:08:24] Speaker 03:
that separateness was a preordained claim construction between the hub and the user interface connectors.

[00:08:32] Speaker 03:
When you dig deep into the arguments, the only ground for calling it frivolous for the patentee to send off a separateness construction was that the word coupled is between those two claim phenomena.

[00:08:44] Speaker 03:
So you have user interface connector coupled to the network hub.

[00:08:50] Speaker 03:
Well, Your Honors, as you're very, very well familiar, coupled is one of the most general terms that can be used in a patent claim.

[00:08:58] Speaker 03:
And it encompasses both attachments to things and very indirect communication with things that may be far away and not directly attached.

[00:09:07] Speaker 03:
It's a broad term.

[00:09:09] Speaker 03:
So the broad term couples can't be used to impute a separateness requirement.

[00:09:14] Speaker 03:
And what we see from the past licensing case is that even when the word is attached, the claim word is attached.

[00:09:22] Speaker 03:
Even having that word in a claim doesn't mean permanently attached.

[00:09:26] Speaker 03:
It's excluded.

[00:09:28] Speaker 03:
So where does that leave the scorecard?

[00:09:31] Speaker 03:
It's that every ground of alleged frivolousness was simply wrong.

[00:09:37] Speaker 03:
Some unfathomably wrong.

[00:09:40] Speaker 03:
And that leaves only the district court believes that that Shalamo was insincere in its explanation for why it chose to dismiss.

[00:09:48] Speaker 03:
So Shalamo approached the court and said, we'd like to dismiss with prejudice because of changed circumstances.

[00:09:53] Speaker 03:
You allow them this new license defense.

[00:09:56] Speaker 03:
And that altered our perception of the economics of the case.

[00:10:00] Speaker 03:
The court's only rationale to attack that in the decision was to not believe it, because supposedly that was inconsistent with a prior argument that the licensed defense was futile.

[00:10:13] Speaker 03:
Well, what all that misses is that things change because of the district court order allowing it in.

[00:10:19] Speaker 03:
There was absolutely nothing inconsistent.

[00:10:21] Speaker 03:
A pure error of judgment

[00:10:23] Speaker 03:
unfair, illogical, simply does not follow.

[00:10:27] Speaker 03:
And with your honor's permission, I'd like to reserve the rest of my time for a moment.

[00:10:31] Speaker 01:
We'll do that, Mr. Greenstone and Mrs. Shipperman.

[00:10:41] Speaker 01:
I assume you're not going to rely on the chart.

[00:10:44] Speaker 00:
I'm sorry, Aaron?

[00:10:44] Speaker 01:
You're not going to rely on the chart?

[00:10:46] Speaker 00:
Not specifically, no.

[00:10:47] Speaker 01:
Why don't we take the chart, Aaron?

[00:10:51] Speaker 00:
May it please the court, Lana Shifferman for Alcatel-Luston.

[00:10:55] Speaker 00:
Counsel for Shalamu is asking this panel to second-guess Judge Andrew's decision.

[00:11:00] Speaker 00:
Judge Andrew's decision must be review based on an abuse of discretion and should be given deference.

[00:11:10] Speaker 00:
Judge Andrew determined that

[00:11:13] Speaker 00:
Shalomou's positions on claim construction and infringement were frivolous and that their positions and their conduct and their litigation conduct throughout were called for an exceptional case.

[00:11:28] Speaker 00:
Oxfam fitness requires that we not look at the correctness of the position, but we look at the actual strength of the arguments that were presented to this court.

[00:11:39] Speaker 00:
We need to look at the actual arguments made.

[00:11:43] Speaker 00:
And as we review each of the many positions that counsel has argued, you will see that these positions were not actually made to the district court.

[00:11:51] Speaker 00:
And therefore, the district court did not have the benefit of their position, and they cannot now rely on it to

[00:11:58] Speaker 00:
asked this court to reverse Judge Andrews' finding that this case was exceptional.

[00:12:04] Speaker 00:
I'm going to address each of the arguments that counsel made in turn.

[00:12:08] Speaker 00:
Counsel has argued that this case is based on a statement or a misstatement by Judge Andrews that there is no power traveling and power over Ethernet device.

[00:12:19] Speaker 00:
That is absolutely not the case.

[00:12:22] Speaker 00:
What Judge Andrews indicated in his decision was that an RJ connector not capable of receiving power.

[00:12:31] Speaker 00:
An RJ connector is simply a commonplace ethernet plug and the port.

[00:12:38] Speaker 00:
power travels through the connector to an adapter which is capable of receiving and using power.

[00:12:47] Speaker 00:
Those are two distinct elements and described as distinct elements within the specification.

[00:12:53] Speaker 00:
In fact, the positions that Chalamu actually advocated to the court on claim construction for these two terms are consistent with the court's findings.

[00:13:03] Speaker 00:
Chalamu argued that an adapter

[00:13:05] Speaker 00:
was capable of receiving power and data.

[00:13:12] Speaker 00:
And for a RJ connector in the form of a user interface connector, they said that that was a multi-pin connector through which power traveled.

[00:13:24] Speaker 00:
Through which, they also cite testimony by Alex Tell's witness.

[00:13:28] Speaker 00:
Again, consistent with the court's finding, power traveled through the connector to a circuit, the circuit being the adapter.

[00:13:39] Speaker 00:
So the court's submission on what this case was about was absolutely right.

[00:13:45] Speaker 00:
RJ45 adapter is not a term that is used anywhere in the patent.

[00:13:50] Speaker 00:
The patent does not describe any sort of modification to an RJ45 connector to turn it into adapter.

[00:13:59] Speaker 00:
that you saw was just simply a network hub on the left, and as described in the pad, an infrared adapter, which is an adapter of a first type, on the right.

[00:14:14] Speaker 00:
There is actually, if you look at the description and the references within that figure, no reference to an RJ45 connector.

[00:14:23] Speaker 00:
implausible to argue that the sixth figure 6A is actually some sort of modification to an RJ-45 connector that turns it into an adapter when the figure doesn't even reference or describe the actual connector.

[00:14:41] Speaker 00:
And their preliminary infringement contentions, the only infringement contentions that they made throughout this case are equally flawed.

[00:14:51] Speaker 00:
And their infringement contentions

[00:14:53] Speaker 00:
Chalmers says that an adapter, i.e.

[00:14:57] Speaker 00:
an RJ45 adapter, which again doesn't appear anywhere in the patent, is coupled to a connector, i.e.

[00:15:06] Speaker 00:
a port.

[00:15:07] Speaker 00:
So it argues that since you have to have a plug and a port that's the only thing that is a connector, it argued that the adapter, the commonplace plug, that piece of plastic at the end of your Ethernet cable that you might have in your house,

[00:15:23] Speaker 00:
was an adapter capable of receiving power, and the judge found that position to be simply frivolous.

[00:15:31] Speaker 00:
There's no support for that in the specification, and Chalamu has identified none.

[00:15:38] Speaker 00:
With respect to adapter of a first type, Chalamu argued that adapter of a first type is an adapter of a particular type.

[00:15:47] Speaker 00:
And that's the construction that the district court found to be one of the worst that it ever heard.

[00:15:55] Speaker 00:
Because an adapter of a particular type is effectively any kind of adapter.

[00:16:01] Speaker 00:
But the claim language here is adapter of a first type.

[00:16:06] Speaker 00:
The patent owner was specific of a first type.

[00:16:10] Speaker 00:
To call this any generic adapter,

[00:16:13] Speaker 00:
out the term of a first type.

[00:16:16] Speaker 00:
Now, that's just the patent convention that should be a term of relation.

[00:16:21] Speaker 00:
But relation to what?

[00:16:23] Speaker 00:
Claim eight only uses, has an adapter of a first type.

[00:16:28] Speaker 00:
And the specification uniformly teaches

[00:16:30] Speaker 00:
that the characteristics of an adapter of a first type are that it must be capable of receiving power.

[00:16:39] Speaker 00:
And that's consistent with the claim, identifying the presence of an adapter of a first type

[00:16:45] Speaker 00:
And four, continuously providing power to that adapter.

[00:16:50] Speaker 00:
Therefore, an adapter of a first step must be capable of receiving power.

[00:16:54] Speaker 00:
And the specification says that the only adapters that can receive power are infrared adapters or other similar wireless adapters.

[00:17:04] Speaker 00:
And the argument that they make now, and the specification also teaches that

[00:17:12] Speaker 00:
other types of adapters, second type and third type, do not receive power.

[00:17:18] Speaker 00:
They're very clear on that.

[00:17:19] Speaker 00:
So to make adapter of a first type a generic adapter, the claim would be nonsensical.

[00:17:26] Speaker 00:
Now, Salma points to claim differentiation.

[00:17:30] Speaker 00:
First, that argument is weight.

[00:17:32] Speaker 02:
It would be internally contradictory.

[00:17:35] Speaker 00:
If adapter of a first type is not limited to adapter of

[00:17:40] Speaker 00:
to an infrared or other wireless adapter.

[00:17:43] Speaker 00:
Absolutely.

[00:17:44] Speaker 00:
The claim would be internally contradictory, it makes no sense, because it would not be able to perform the later requirement of actually receiving power.

[00:17:53] Speaker 00:
And that's central to what this invention is really about.

[00:17:56] Speaker 00:
This is all about powering a remote device.

[00:18:00] Speaker 00:
And if they adhere an adapter, and if it can't be receiving power, then there is no sense to this invention.

[00:18:09] Speaker 00:
The claim differentiation argument is similarly flawed.

[00:18:12] Speaker 00:
First of all, it's waived, never made during the claim instruction process, never made to this court during the briefing on the fees.

[00:18:23] Speaker 00:
Claims 9, 10, and 11 refer to Ethernet, token ranks, and wireless LAN.

[00:18:31] Speaker 00:
These are not types of adapters.

[00:18:33] Speaker 00:
These refer to the operational protocol, which is another term within the specification and the claim.

[00:18:44] Speaker 00:
That talks about the form of communication.

[00:18:48] Speaker 00:
That does not refer to adapter.

[00:18:50] Speaker 00:
So claims 9, 10, and 11 are

[00:18:53] Speaker 00:
limiting and narrowing a different limitation and therefore do narrow the claim and are not inconsistent with the construction of adapter of a first type as provided by the court being an infrared or a wireless adapter.

[00:19:11] Speaker 00:
But what's important here is not even the correctness of the court's decision.

[00:19:16] Speaker 00:
As this court has found an SSA NUEG, this is not the time to

[00:19:22] Speaker 00:
commit a de novo review of the claims instructions.

[00:19:26] Speaker 00:
Chalamu does not get a second bite at the apple.

[00:19:31] Speaker 00:
We are evaluating and measuring the actual positions that were litigated and the strength of those positions.

[00:19:39] Speaker 00:
The only arguments that Chalamu made on this issue before the district court were one,

[00:19:47] Speaker 00:
patent drafting convention and maybe an error that was made at the actual hearing with no support, no explanation, and then withdrawn and never made on appeal, and the specification supports it.

[00:20:05] Speaker 00:
But as we discussed, there is no support in the specification.

[00:20:10] Speaker 00:
The last argument Shalomou made on this issue was with respect to other portions of the specifications, talking about desired devices.

[00:20:20] Speaker 00:
That is not an issue, again, that was argued before the court.

[00:20:24] Speaker 00:
Neither of those specifications, and in particular, they're pointing to the end of the patent

[00:20:39] Speaker 00:
at columns 13, lines 36 to 50, that talks about desired devices.

[00:20:46] Speaker 00:
The first time that that section of the patent was cited was to this court.

[00:20:52] Speaker 00:
Moreover, not only is it waived, it's wrong.

[00:20:55] Speaker 00:
That's simply talking about the right type of device.

[00:20:58] Speaker 00:
And the term desired devices is no better than particular, if any device.

[00:21:04] Speaker 00:
And here in this portion of the specification, the court is simply talking about the right device in a particular circumstances.

[00:21:12] Speaker 00:
Here, adapter refers type is a wireless adapter that can receive power.

[00:21:19] Speaker 00:
Next, Shalini talks about user interface connector.

[00:21:24] Speaker 00:
Says that we need to look at the fact that the patent doesn't reference separately.

[00:21:30] Speaker 00:
But the patent, while it doesn't use the word, the figures and the text make clear that user interface connectors are in a particular location and are different than all the other kinds of connectors.

[00:21:44] Speaker 00:
And in fact, when the patent owner wanted to show that things were included, it said that the hub includes hub user connectors and uplink connectors.

[00:22:00] Speaker 00:
With respect to the user interface connector, no such statement was made and every reference to it, including figures, for example, figure 2, shows that it is something separate from the network hub and the hub user connectors, the uplink connectors,

[00:22:18] Speaker 00:
and there's no support showing that they can be interchangeable, which is exactly what Shalin will argue.

[00:22:26] Speaker 00:
They essentially want to read out, again, the words of the claim.

[00:22:30] Speaker 00:
They want that claim term to be connector, and that's because they have an infringement argument that rides on it.

[00:22:36] Speaker 00:
But the term is user interface connector, and the patent is clear that it has particular definitions.

[00:22:47] Speaker 00:
Now I'm going to move on to

[00:22:51] Speaker 00:
the overall litigation misconduct.

[00:22:55] Speaker 00:
Shalmu filed this case at the end of a series of cases.

[00:22:58] Speaker 00:
This was one of the last.

[00:23:00] Speaker 00:
It demanded a nuisance settlement and then acted in accordance with that demand to try to drive a cause.

[00:23:07] Speaker 00:
The fact that, the only thing that they point to here is they served some interrogator or document request.

[00:23:13] Speaker 00:
They made us defend depositions, but we need to look at the actual substance behind their request.

[00:23:20] Speaker 00:
The fact that they posed a motion to dismiss the French entity when in a... They say they asked for requests for admissions too.

[00:23:32] Speaker 00:
They asked for requests for admissions, they served interrogatories.

[00:23:35] Speaker 00:
It doesn't take a lot to draft requests for admissions interrogatories.

[00:23:41] Speaker 00:
What is hard and what takes time, effort and expense is actually responding to that discovery.

[00:23:47] Speaker 00:
And that's what they forced us to do.

[00:23:48] Speaker 00:
They served, as they say, five sets of RFPs.

[00:23:52] Speaker 00:
We had to produce voluminous amounts of documents, expense.

[00:23:57] Speaker 00:
And they don't even have an expert that was able to review the confidential documents until the very end of that discovery.

[00:24:04] Speaker 00:
On the deposition front, they hid behind their entities.

[00:24:08] Speaker 00:
We deposed Acacia.

[00:24:10] Speaker 00:
They said, oh, Chalamu knows.

[00:24:12] Speaker 00:
And Acacia is Chalamu's parent.

[00:24:13] Speaker 00:
We deposed Chalamu.

[00:24:16] Speaker 00:
notification notes, even though the witness was an Acacia employee.

[00:24:21] Speaker 00:
This was all really the same company.

[00:24:23] Speaker 00:
They hid behind their forms.

[00:24:25] Speaker 00:
They made a third party discovery on the license stuff.

[00:24:30] Speaker 00:
Overall, they acted in a way to string out this case, hoping to incur the expense and force Alcatel to settle, just so that they can get a nuisance settlement.

[00:24:43] Speaker 00:
And when they were unable to do that, on the eve of expert discovery, after opposing the licensed defense as futile, they dismissed.

[00:24:56] Speaker 00:
One last issue I want to cover is the voluntary dismissal.

[00:25:01] Speaker 00:
First of all, Chalamu is not the prevailing party here.

[00:25:07] Speaker 00:
Alcatel Lucent prevailed in this case, and the pragmatic decision of this court showed that there is a voluntary dismissal with prejudice that has necessarily included within it a covenant not to sue.

[00:25:21] Speaker 00:
And that is determinative.

[00:25:24] Speaker 00:
It covered all claims, nothing left.

[00:25:27] Speaker 00:
And with respect to the voluntary dismissal, precluding fees,

[00:25:31] Speaker 00:
Shallan was asking essentially for a get out of jail free card.

[00:25:35] Speaker 02:
If they dismissed after... Well, they sought that agreement and didn't obtain it, isn't that correct?

[00:25:40] Speaker 00:
I'm sorry, Your Honor?

[00:25:40] Speaker 02:
Didn't they seek that agreement as part of their initial attempt to negotiate a dismissal with you, that you not seek fees and you refuse to pay them?

[00:25:48] Speaker 00:
They did.

[00:25:49] Speaker 00:
We refused and the judge instructed us that we could seek fees, but they're seeking a get out of jail free card.

[00:25:55] Speaker 00:
to excuse all that came before it.

[00:25:58] Speaker 00:
That's not the law.

[00:26:00] Speaker 00:
Thank you.

[00:26:01] Speaker 01:
Thank you, Ms.

[00:26:02] Speaker 01:
Schiffman.

[00:26:04] Speaker 01:
Mr. Greenspoon has about five minutes to revoke.

[00:26:09] Speaker 03:
Yes.

[00:26:09] Speaker 03:
Thank you, Judge.

[00:26:10] Speaker 03:
Now, I'm not here to argue that Shalomo was right, and we need to overturn claim construction.

[00:26:16] Speaker 03:
But you do need to tell us where these arguments were raised below.

[00:26:20] Speaker 03:
That's right.

[00:26:21] Speaker 03:
That's right.

[00:26:22] Speaker 03:
And in each case, the arguments were raised below.

[00:26:25] Speaker 03:
The briefing is at Sheldon's opposition to the Section 25 motion is A2454.

[00:26:33] Speaker 03:
2454.

[00:26:35] Speaker 03:
That's right.

[00:26:38] Speaker 03:
And I didn't hear that there's only one specific issue where I heard from Ms.

[00:26:45] Speaker 03:
Schifferman that there is no mention of it in the trial court, and I think that was the... No, there were at least two.

[00:26:52] Speaker 03:
Okay.

[00:26:52] Speaker 03:
Well, there was this specification excerpt.

[00:26:54] Speaker 03:
In any case, where I'm going with that is whatever they were, were following the rule laid down in Interactive Gift, which says we had an argument

[00:27:02] Speaker 03:
in the trial court and on appeal of course we have some latitude for pointing to places that support the same argument.

[00:27:12] Speaker 02:
Show me where you've raised the specific issues in the record because I'm looking at 2454.

[00:27:25] Speaker 03:
There's a defense of the adapter of a first type not having to be wireless and it should be construed as particular

[00:27:32] Speaker 03:
On 2456, Shalamo's claim constructions were not frivolous.

[00:27:42] Speaker 03:
2457, with respect to adapter of a first type, Shalamo's proposed construction was not divorced from the specification or inconsistent with prosecution history.

[00:27:56] Speaker 03:
And that's it.

[00:28:00] Speaker 03:
The figure 6A of the patent is discussed where 6A has the adapter of the first type that's on the next page, 58.

[00:28:12] Speaker 03:
So what it comes down to is Shellimo of course during claim construction proceedings advocated for its claim construction.

[00:28:21] Speaker 03:
That was undoubtedly true.

[00:28:23] Speaker 03:
but if i made a very little time left what makes the difference between the after and after in fact single i'm capable of receiving power and if you look at the plane of the whole you're not going to adequately answer my question about where those arguments were raised well you're going to lose on that waiver issue you can go to your honor

[00:28:51] Speaker 03:
Absolutely, in the district court, I can take some time to point to the pages, but I know we have very little time here.

[00:28:58] Speaker 03:
In that briefing, there is a defense of the non-frivolity of all the claim construction.

[00:29:03] Speaker 02:
Well, yeah.

[00:29:04] Speaker 02:
Okay.

[00:29:05] Speaker 02:
And if that's sufficient, you would probably prevail on that, if that was sufficient.

[00:29:10] Speaker 03:
Thank you, Your Honor.

[00:29:11] Speaker 03:
But of course, back to what is frivolous claim construction.

[00:29:15] Speaker 03:
This court in Q Pharma set that out.

[00:29:17] Speaker 03:
This court in ILOOR cited back to Q Pharma.

[00:29:20] Speaker 03:
What makes the claim construction position frivolous is that it doesn't follow standard canons of claim construction and it doesn't reasonably rely on the intrinsic record.

[00:29:29] Speaker 03:
And in this case, if you go back to the claim construction briefing, which is absolutely in the record, and all of the discussion of the claim construction in the sense of its non-frivolity in the fee briefing, you'll see that

[00:29:45] Speaker 03:
those frameworks were followed.

[00:29:51] Speaker 03:
Finally, what we heard from Ms.

[00:29:55] Speaker 03:
Schifferman on the separateness issue is you heard her talk about places in the specification where the user interface connector happens to be in the preferred embodiment example separate from the network hub.

[00:30:08] Speaker 03:
In fact, it's their case which shows that that's not a ground for finding that separateness is a requirement.

[00:30:15] Speaker 03:
It's computer docking station, a case cited by Alcatel, which indicates that figures and statements in the specification are not by themselves enough to show separateness.

[00:30:27] Speaker 03:
It was specifically on an issue of separateness.

[00:30:30] Speaker 03:
Finally, litigation misconduct was not an issue accepted by the district court.

[00:30:36] Speaker 03:
In fact,

[00:30:37] Speaker 03:
I would like to cite Parsi versus Hassan, which is 778 F3 116.

[00:30:45] Speaker 03:
That's a case which stands for the proposition that when you have an equitable decision by the district court with a plurality of rationales, you can't rely on the normal alternative grounds for affirmance rules.

[00:30:58] Speaker 02:
When you say litigation misconduct was not accepted by the district court,

[00:31:03] Speaker 02:
The court says Chalamont filed a frivolous lawsuit with the sole purpose of extorting a settlement fee.

[00:31:09] Speaker 02:
When it realized that was not going to happen, it dropped the case.

[00:31:13] Speaker 02:
Shellimo's entire litigation strategy was devoted to stringing out the case in the hopes that Alcatel would incur fees while Shellimo would not.

[00:31:24] Speaker 02:
How's that not litigation misconduct?

[00:31:26] Speaker 03:
It's not technically what this court has called litigation misconduct.

[00:31:30] Speaker 03:
It's certainly offensive, and those are caustic characterizations.

[00:31:33] Speaker 03:
I don't deny that.

[00:31:34] Speaker 03:
But litigation misconduct in the context of fee awards is

[00:31:39] Speaker 03:
activities by the offensive party, which specifically caused an increase in cost to the other side.

[00:31:47] Speaker 02:
Well, let me restate that.

[00:31:51] Speaker 02:
Strategy was devoted to stringing out the case in the hopes that Alcatel would incur fees.

[00:31:56] Speaker 02:
Didn't you just describe that?

[00:32:00] Speaker 03:
Your Honor, that's a gloss and a characterization, but it's not a finding that a specific activity constitutes litigation.

[00:32:08] Speaker 01:
And I thank you for your time, Your Honor, if there are no further questions.