[00:00:10] Speaker 02:
Next case is Circuit Trek versus QXQ, Inc.

[00:00:16] Speaker 02:
2015, 1155.

[00:00:38] Speaker 02:
May it please the court.

[00:00:45] Speaker 00:
On behalf of Circuit Check, we appeal the District Court's grant of judgment as a matter of law, following a verdict of willfulness, non-obviousness, and awarding both lost profits and reasonable royalty damages.

[00:01:01] Speaker 00:
The District Court, heir to granting judgment as a matter of law,

[00:01:06] Speaker 00:
Instead of taking the evidence, presumed findings, which supported the verdict of non-obviousness, the district court made its own credibility determinations.

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For example, on the issue of whether QXQ copied the invention, the district court based its decision on the credible testimony of the defendant QXQ's employees, who stated that they had independently made the accused product themselves.

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The question of obviousness

[00:01:35] Speaker 00:
was submitted to the jury by general verdict form without objection by either party on the JMO standard, as this court knows from the case, spectralytics versus court case, which cites the Rees-Clemick, the standard is that the court must presume all findings supporting, all findings that are supported by substantial evidence and must disregard evidence favorable to the moving party.

[00:02:02] Speaker 00:
So the question is not whether the jury

[00:02:04] Speaker 00:
should have done what they did, the question is whether they could have.

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If the jury could have found the invention non-obvious, then the district court must presume that they did.

[00:02:15] Speaker 00:
In this case, the jury certainly had ample evidence to make the decision that they did.

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To begin with, the jury could have concluded that the concept of marking by removal was not technically pertinent to the invention.

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The defendants alleged

[00:02:35] Speaker 00:
that the general concept of marking by removal.

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Invention involves a method of manufacture, I'm sorry, a method of marking a piece of equipment used to test circuit boards.

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The defendants relied upon evidence not from the field of art, they relied upon general rock carvings, engraved signage, and something known as Prussian blue.

[00:03:04] Speaker 02:
It's a marking used in a... The judge said this invention was known to cavemen.

[00:03:11] Speaker 00:
He said it would have been obvious to... And vandals.

[00:03:15] Speaker 01:
Let's not leave out the vandals.

[00:03:17] Speaker 00:
A vandal that would key a car.

[00:03:19] Speaker 00:
The general concept of marking by removal would have been obvious, and therefore the invention is obvious in his reasoning.

[00:03:27] Speaker 00:
And maybe the jury could have found it obvious, but they didn't.

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And the reason they didn't is they heard evidence from the inventor and other employees of Circuit Check saying that that prior art that was cited wasn't pertinent to the invention.

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And one of the reasons that they testified the way they did is because this invention, if you use too much coating or paint on the interface plate, it'll foul up the expensive test equipment.

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It's a half million dollar piece of equipment.

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paint can short the circuit, and it'll follow the test results.

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And support if the paint comes off.

[00:04:05] Speaker 00:
If the paint flakes and chips, which it can under the terms in which the machine is used.

[00:04:12] Speaker 00:
So there was testimony that the prior art taught away from the invention.

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One of the prior art references was a product called, it's a document called the Plexus Specification.

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And it said, and this is the only prior art reference

[00:04:28] Speaker 00:
that combined both marking by paint and marking by removal.

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And the only prior references that combined the two said that you should drill first and then mark, which is the opposite of the invention.

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The inventor testified that it was opposite and contrary to the invention to drill first and then paint, because that goes away from the invention.

[00:04:51] Speaker 00:
Obviously, if you drill first and paint, you cannot then coat the entire surface.

[00:04:59] Speaker 00:
The jury was instructed on teaching away.

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The jury was instructed on what is relevant prior art.

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The jury was instructed on secondary considerations.

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And the jury could have come to the conclusion it did.

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The jury could have also come to the conclusion that there was a lack of motivation for a person of skill in the art to combine the prior art, the general concept, and apply it in the way in which it was used in this invention.

[00:05:26] Speaker 02:
What you're saying is that the

[00:05:28] Speaker 02:
Judge's reliance on common sense does not trump the jury's verdict.

[00:05:36] Speaker 00:
I do, Your Honor.

[00:05:37] Speaker 00:
Common sense to one person may not be common sense to another.

[00:05:41] Speaker 00:
The jury is the tool that should determine what common sense is.

[00:05:49] Speaker 00:
If it had been common sense, why hadn't someone done this for 10 years?

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After the invention was used,

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After the invention was used, there's testimony in the record showing that it was very successful.

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The sales, it was testimony from the circuit check employees testified that they used the invention to drive sales.

[00:06:15] Speaker 00:
There's evidence in the record that they tested the equipment at a mutual customer with QXQ, that customer's Plexus.

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The equipment was tested in 2003 at Plexus

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And in 2004, QXQ's owner, he testified that in 2004, he was asked by Plexus to make the invention.

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So QXQ had access to the invention and they started making something identical to it.

[00:06:41] Speaker 00:
The case law allows an inference that there was copying.

[00:06:45] Speaker 00:
Copying would also support the jury's verdicts.

[00:06:49] Speaker 02:
I noticed there are more than a dozen references

[00:06:51] Speaker 02:
cited in the prosecution of this patent.

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Were these relevant art, and was there extensive prosecution and amendment?

[00:07:06] Speaker 00:
There was an extensive prosecution history.

[00:07:08] Speaker 00:
In the first patent, I believe there were two or three office actions, if I'm not mistaken.

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The prior art was before the examiner.

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The prosecuting patent attorney testified at trial about what happened at prosecution, what was considered.

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And actually one of the most pertinent prior art reference was in the patent itself.

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It's called, it's figure one in the patent.

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It shows marking by painting.

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The prosecuting attorney, Mr. Lasky, also testified that the patent office had a reference that showed drilling.

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So the patent office and the examiner

[00:07:47] Speaker 00:
had both painting and drilling before him, the same evidence that was presented at trial as the primary prior art reference.

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The examiner allowed, obviously, the patent to issue in two continuations.

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The pertinent prior art, the same prior art that was argued about at trial, was presented to the patent office.

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It allowed the invention to issue.

[00:08:14] Speaker 03:
Were there rejections in the prosecution on obviousness grounds?

[00:08:21] Speaker 00:
There were rejections on obviousness and anticipation based upon what in the prosecution history is referred to as the admitted prior art, and that's the figure one in the patents.

[00:08:33] Speaker 00:
It's the best of my recollection.

[00:08:35] Speaker 00:
The issue hasn't been developed as much on appeal, but there were rejections based upon that prior art reference.

[00:08:44] Speaker 03:
And the figure one was what?

[00:08:46] Speaker 00:
Figure one shows the plastic base plate.

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It's an unmarked plate.

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And then figure one shows painting around the hole.

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So the primary prior art was painting around the hole or drilling around the hole.

[00:09:03] Speaker 00:
And there's testimony from Staggart, the inventor, as well as Neil Adams, who's another employee of Circuit Check, that automatic drilling using a CNC machine

[00:09:13] Speaker 00:
had been around for 10 years.

[00:09:15] Speaker 00:
When the machine that came out, called the Agilent 3070, that uses this type of interface plate, 10 years ago, people were marking and drilling.

[00:09:26] Speaker 00:
And it wasn't until circuit check came along 10 years later and said, let's combine the two, then we can use the automatic drilling machine to quickly mark the interface plate.

[00:09:38] Speaker 00:
Because the problem with the prior art was that it was labor intensive.

[00:09:43] Speaker 00:
And it was inaccurate.

[00:09:45] Speaker 00:
Well, the district court, in his decision granting judgment as a matter of law, he said that there was a motivation to combine the references.

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And that motivation the district court found was the automatic drilling machine.

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That's the very benefit that's described in the patent.

[00:09:59] Speaker 00:
We submit that that is classic hindsight.

[00:10:02] Speaker 00:
The benefit of the invention is that you can use the automatic drilling machine to save time, to be more accurate.

[00:10:09] Speaker 00:
And the judge said that's the motivation to combine.

[00:10:11] Speaker 00:
He found that in his basis.

[00:10:13] Speaker 00:
Again, the jury was instructed on motivation.

[00:10:16] Speaker 00:
They were instructed on teaching away.

[00:10:18] Speaker 00:
They were instructed on all of the issues for obviousness.

[00:10:21] Speaker 03:
So the basic difference between this and the prior art is the difference between marking the holes with paint and marking the holes by removing paint.

[00:10:31] Speaker 00:
Yes.

[00:10:33] Speaker 00:
I mean, that's the primary difference.

[00:10:35] Speaker 00:
And no one until Circuit Check applied it had applied the concept, what the judge called common sense,

[00:10:43] Speaker 00:
before circuit check did.

[00:10:45] Speaker 00:
And we submit that the secondary considerations of non-obviousness support the verdict.

[00:10:51] Speaker 01:
And that's what the judge... In fact, it wasn't one of your arguments that the prior art suggested that paint was expensive and that paint could chip off and get into the holes and thereby interfere with the ability to check.

[00:11:04] Speaker 01:
So why would it have been obvious to put actually more paint on the whole surface

[00:11:09] Speaker 01:
The prior art had only a small amount of paint around each hole, and what this invention did was decide to actually coat the entire surface with paint.

[00:11:18] Speaker 00:
That's precisely the argument that we made for teaching a way.

[00:11:21] Speaker 00:
And there's testimony from technical people, those skilled in the art that was presented by QXQ, Mr. West.

[00:11:30] Speaker 01:
What is somebody skilled in the art?

[00:11:32] Speaker 01:
I was racking my brain yesterday.

[00:11:34] Speaker 01:
It didn't seem to be the subject of

[00:11:36] Speaker 01:
any dispute among the parties that I could identify, but nobody sort of talks about it.

[00:11:41] Speaker 01:
I mean, this isn't the circuit checker.

[00:11:44] Speaker 01:
This is the board that goes on top of the circuit checker to show which pins to push up.

[00:11:49] Speaker 01:
So who is somebody of skill in the arts for this?

[00:11:52] Speaker 00:
The person of skill in the art is a person who designs what they call a test fixture.

[00:11:57] Speaker 00:
So if you imagine, there's three main components.

[00:11:59] Speaker 00:
There's the plate.

[00:12:00] Speaker 01:
This person doesn't have to be an electrical engineer necessarily.

[00:12:04] Speaker 01:
To build a circuit checker, I would think you would need an electrical engineer or an electronics engineer.

[00:12:08] Speaker 01:
But you're just talking about the guy or the person who builds the board.

[00:12:11] Speaker 00:
Well, Scott Staggered is the inventor who invented the invention.

[00:12:14] Speaker 00:
And he has a degree in industrial technology from a four-year college.

[00:12:21] Speaker 00:
And he builds what they call test fixtures.

[00:12:24] Speaker 00:
It's the interface between the circuit

[00:12:27] Speaker 00:
board being tested in the large machine.

[00:12:30] Speaker 00:
As the party, the plaintiff, we felt it's not our burden to prove who is a person of skill in the art.

[00:12:39] Speaker 00:
That was the burden for the defendant.

[00:12:41] Speaker 01:
I don't see any argument, at least unless I missed it.

[00:12:45] Speaker 01:
Is there any argument that's been presented to this court that demonstrates a dispute?

[00:12:50] Speaker 01:
that is meaningful about what the level of skill in the art is?

[00:12:53] Speaker 00:
No, no.

[00:12:54] Speaker 01:
I just want to make sure.

[00:12:55] Speaker 01:
I was just curious.

[00:12:56] Speaker 00:
Yeah, the district court in QXQ said the person of ordinary skill in the art was anyone.

[00:13:03] Speaker 00:
It doesn't matter who the person is because the invention is, it's common sense.

[00:13:07] Speaker 01:
You're eating up your rebuttal time.

[00:13:09] Speaker 00:
Oh, I will reserve the rest of my time for rebuttal.

[00:13:12] Speaker 02:
We will save it for you.

[00:13:14] Speaker 02:
Mr. Merrill, Mr. Harrison.

[00:13:19] Speaker 02:
Thank you, Your Honor.

[00:13:21] Speaker 02:
May it please the court?

[00:13:27] Speaker 02:
I will try to address the points that were made by opposing counsel as much in order as possible.

[00:13:37] Speaker 02:
First of all, he said there was only testimony of QXQ on the issue of using the

[00:13:49] Speaker 02:
Prussian blue technique.

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And it showed that there was only use of Prussian blue outside of the field of endeavor.

[00:14:00] Speaker 02:
In fact, Mr. Wexler testified, and he was an owner of a company that made test fixtures at the time, testified that his company used Prussian blue in machine work long before

[00:14:19] Speaker 02:
the invention of the present invention.

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You'll find that testimony at A1801 and 1802 in the appendix.

[00:14:36] Speaker 02:
Mr. Merrill says that there was proof, or there was some evidence of copying,

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There was no evidence of copying.

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There's an inference that he would like to draw from the mere fact that something could have happened.

[00:14:55] Speaker 02:
No one testified that it did happen.

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In fact, the president of Circuit Check said that he could speculate what happened.

[00:15:05] Speaker 02:
He didn't say that he knew copying had occurred.

[00:15:09] Speaker 02:
But weren't these all questions for the jury?

[00:15:13] Speaker 02:
Yes.

[00:15:15] Speaker 02:
Yes, certainly.

[00:15:16] Speaker 02:
Question of whether they could or could not have had access.

[00:15:23] Speaker 02:
And so the trial judge should not have overridden the jury based on common sense.

[00:15:31] Speaker 02:
I don't think it's correct to characterize that as the judge overriding on common sense.

[00:15:38] Speaker 02:
I think he carefully followed the Graham factors

[00:15:42] Speaker 02:
He applied them all, discussed them all, and he was applying the law that says if no reasonable jury could find a particular fact, then it's appropriate for judgment as a matter of law.

[00:16:00] Speaker 02:
Indeed, this court's opinion in Wires versus Master Locke says the same thing.

[00:16:07] Speaker 02:
It says very clearly.

[00:16:09] Speaker 02:
Cases that are where there's no dispute, no real dispute over issues of the scope of the art, one skilled in the art, things of that nature, there's no real dispute of that.

[00:16:22] Speaker 02:
It's an appropriate case to use common sense to support a judgment as a matter of law or summary judgment.

[00:16:30] Speaker 02:
That is, wires versus master lock.

[00:16:39] Speaker 02:
Court asked the question of whether there was prior art before the examiner in the patent office.

[00:16:48] Speaker 02:
There was, as Mr. Merrill described, that art.

[00:16:54] Speaker 02:
There was not any art concerning the motivation to combine.

[00:17:01] Speaker 02:
And that is what the examiner eventually would say at the end of all of the back and forth on a particular rejection.

[00:17:10] Speaker 02:
Well, I can't find anything that says there is a motivation to combine these things.

[00:17:16] Speaker 02:
And by the way, the examiner did not have the best art before her.

[00:17:22] Speaker 02:
She did not have a copy of the plexus specifications that we have referred to.

[00:17:28] Speaker 02:
And those are exhibits 22, 24, 25, which are found in

[00:17:35] Speaker 02:
in the appendix.

[00:17:38] Speaker 02:
She did not have those documents before her, and all of those documents show some aspect of using paint, drilling holes, and they include phrases that at the very least suggest that it was a good idea to mark a plate, to mark an alignment plate, so that it would help with inspection and repair.

[00:18:02] Speaker 02:
And those references were before the jury?

[00:18:06] Speaker 02:
They were.

[00:18:11] Speaker 02:
I'd like to particularly point to one of them, if I may.

[00:18:18] Speaker 02:
It says that someone who has... Excuse me.

[00:18:30] Speaker 02:
I would also want to...

[00:18:32] Speaker 02:
noticing this in passing, comment that Mr. Staggart himself knew about the Prussian blue technique.

[00:18:42] Speaker 02:
And as a junior high shop student, he knew that that was a technique that could be used for marking.

[00:18:49] Speaker 02:
And on the subject, since I used the word marking, I want to emphasize that this is about marking.

[00:18:58] Speaker 02:
It's not about electronic circuits.

[00:19:01] Speaker 02:
It's about marking a very mechanical process.

[00:19:05] Speaker 01:
Well, that's not entirely correct, though, right?

[00:19:08] Speaker 01:
It's about marking a device that's going to be used with electronic circuits.

[00:19:12] Speaker 01:
So you have to be sensitive to understanding the use.

[00:19:15] Speaker 01:
For example, that issue about paint chipping off, which would interfere with the pin's ability to detect the accuracy of a circuit that it's trying to check.

[00:19:25] Speaker 01:
So you're right.

[00:19:27] Speaker 01:
It's about marking.

[00:19:28] Speaker 01:
You have to know what you're marking, right?

[00:19:31] Speaker 01:
finger painting is about painting and house painting is about painting.

[00:19:34] Speaker 01:
I mean, obviously, you know, what my kids are going to finger paint a piece of paper that the paint doesn't have to be waterproof, for example, but house paint does.

[00:19:43] Speaker 01:
So it doesn't matter what you're marking.

[00:19:45] Speaker 01:
You're marking a circuit check interface board.

[00:19:49] Speaker 01:
If you have to take, don't you have to, didn't the jury have to take that into account and understanding?

[00:19:55] Speaker 02:
Yes, certainly you do.

[00:19:57] Speaker 02:
That is what we argued before the

[00:20:00] Speaker 02:
district court and have argued in our briefs that this is the process one uses every time one selects a coating of any kind.

[00:20:10] Speaker 02:
You don't pick an inappropriate coating.

[00:20:12] Speaker 02:
You choose one that matches the surface.

[00:20:15] Speaker 02:
That's true of house painters as well as people who put paint on alignment plates.

[00:20:22] Speaker 02:
But it's a routine process.

[00:20:23] Speaker 02:
It is an invention.

[00:20:25] Speaker 02:
Do that.

[00:20:29] Speaker 03:
That's a routine process to choose paint that won't chip.

[00:20:34] Speaker 02:
It is, yes, I think.

[00:20:36] Speaker 02:
I mean, that would be one of the characteristics that anyone who is applying paint to anything would want.

[00:20:42] Speaker 02:
They want it to stick well.

[00:20:44] Speaker 02:
They want it to not fall off.

[00:20:46] Speaker 02:
They want it to be resistant to whatever forces it's liable to come in contact with.

[00:20:53] Speaker 02:
So those are things you take into account.

[00:20:55] Speaker 02:
If you're painting a space shuttle, you have a different problem than if you're painting a house or an alignment plate.

[00:21:02] Speaker 02:
But those are the routine things that someone goes through choosing a coating for anything.

[00:21:10] Speaker 02:
I would think that's the most basic thing that a coating.

[00:21:14] Speaker 03:
What is the record show about using the appropriate paint to avoid chipping?

[00:21:22] Speaker 03:
What is the record of the trough?

[00:21:27] Speaker 02:
Well, the record shows a number of different things about these, including that the three prior arts statement of work references we have been referring to all require, in some way, use of paint.

[00:21:43] Speaker 02:
So the industry is telling, part of the industry is telling the suppliers that you should use paint on these alignment plates in order to mark them.

[00:21:55] Speaker 02:
It can't be a new idea to use paint.

[00:22:00] Speaker 02:
And the fact that it's already approved and, in fact, demanded in some places by these statements of work certainly indicates that paint is not taught away from.

[00:22:12] Speaker 02:
It's taught toward, if anything.

[00:22:22] Speaker 02:
I'm sorry.

[00:22:23] Speaker 02:
Could I answer the question that your honor asked

[00:22:25] Speaker 02:
What was the?

[00:22:28] Speaker 03:
Well, I guess, was there specific evidence about the knowledge of paint in the prior art that wouldn't chip or flight?

[00:22:41] Speaker 02:
I would say that was not made as a big deal in the trial.

[00:22:49] Speaker 02:
But there were mentions of the use of paint before and after.

[00:22:54] Speaker 02:
all kinds of variations of the use of paint or non-use of paint.

[00:22:59] Speaker 02:
And in connection with the argument that there was success or great commercial success, there was no way that the testimony that was applied

[00:23:15] Speaker 02:
could apply to prove or disprove that there was commercial success.

[00:23:20] Speaker 02:
And as in the wires case, the proof of a fairly substantial amount of sales was not connected to the invention.

[00:23:31] Speaker 02:
That is no nexus, as the cases say.

[00:23:36] Speaker 02:
If I

[00:23:45] Speaker 02:
Sorry, I'm jumping around a little bit.

[00:23:48] Speaker 02:
The pertinence claim that Circuit Check has argued, they say that there is all three of the exemplars that we used that include the rock carvings, the Prussian blue, and engraved signage.

[00:24:09] Speaker 02:
By the way, they are exemplars of the engraved signage

[00:24:14] Speaker 02:
all over this courtroom and all over this courthouse.

[00:24:17] Speaker 02:
These are the signs that are on the council table, possibly the judge's name signs there.

[00:24:25] Speaker 02:
But these are made by... They're not saying that's evidence of obviousness.

[00:24:30] Speaker 02:
I'm saying it's common knowledge, because these things are used everywhere.

[00:24:36] Speaker 02:
And they have been for decades.

[00:24:41] Speaker 02:
But in addition to the fact that they are known in other areas, the use of Prussian blue, as I mentioned earlier, is in the field of endeavor because it was used, as I said, by Mr. Buxler's company, ATE, decades before the invention.

[00:25:11] Speaker 02:
Anything further, Mr. Harrison?

[00:25:13] Speaker 02:
I'm just checking to see.

[00:25:14] Speaker 02:
I'd be most appreciative if the court has any questions, let me know what they are.

[00:25:21] Speaker 02:
No one ever gets any black marks for not using up all of their time.

[00:25:25] Speaker 02:
So we'll hear from Mr. Merrill if he has any rebuttal.

[00:25:42] Speaker 00:
There was testimony in the record about the testing of paint to make sure it worked, and that's where it's actually connected to the evidence of what we believe is copy.

[00:25:51] Speaker 00:
The invention was tested at customers, including one of the mutual customers, as well as others, to make sure it worked first, because we were very concerned that it wouldn't work, and the customers who are skilled in the art, the district court said the customers aren't skilled in the art, the customers are engineers.

[00:26:05] Speaker 00:
That's where the invention was tested.

[00:26:07] Speaker 00:
Now, we're not relying upon this testimony by the president, Mr. Michalko, who said that he speculated whether they were copying.

[00:26:14] Speaker 00:
That's not what we're relying upon.

[00:26:15] Speaker 00:
We're relying upon that QXQ had access to the invention at our customer.

[00:26:21] Speaker 00:
This case is not wires for two reasons.

[00:26:25] Speaker 00:
In wires, he did not show a commercial success, a nexus to the commercial success.

[00:26:31] Speaker 00:
Here we have the nexus.

[00:26:34] Speaker 00:
The jury decided that there was lost profits damages.

[00:26:37] Speaker 00:
There was testimony that the invention drives sales, but for the invention, the sales were made.

[00:26:46] Speaker 00:
Unlike Wires, there is what we talked about earlier, evidence of copying.

[00:26:50] Speaker 00:
Wires didn't have evidence of copying.

[00:26:52] Speaker 00:
He had argued that the sales by the defendant was somehow evidence of copying.

[00:26:56] Speaker 00:
He doesn't have the connection that we do here.

[00:27:01] Speaker 00:
There was testimony about the importance of bonding.

[00:27:05] Speaker 00:
Bonding is a dependent claim.

[00:27:07] Speaker 00:
I believe it's claim 11 of the 796 patent.

[00:27:11] Speaker 00:
It says that it's the coding and removal method.

[00:27:15] Speaker 00:
And then the coding is bonded.

[00:27:17] Speaker 00:
The patent itself in the record, it talks about types of paints that are suitable for this type of invention.

[00:27:25] Speaker 00:
By the way, there was no evidence challenging certain of these dependent claims.

[00:27:30] Speaker 00:
It just wasn't put on.

[00:27:32] Speaker 00:
We relied upon the presumption

[00:27:34] Speaker 00:
of validity for claims five and 11.

[00:27:36] Speaker 00:
There was no evidence on them submitted by QXQ.

[00:27:41] Speaker 00:
The examiner had evidence before her about the automatic drilling system that it's in the patent.

[00:27:49] Speaker 00:
It's in the specification of the patent.

[00:27:50] Speaker 00:
It talks about the benefit of the invention.

[00:27:53] Speaker 03:
The automatic drilling system was known prior, right?

[00:27:56] Speaker 00:
Yes.

[00:27:58] Speaker 00:
It was described in the specification as a method

[00:28:03] Speaker 00:
for drilling, and it was a prior art reference.

[00:28:08] Speaker 00:
For 10 years, people had drilled with automated drilling systems.

[00:28:12] Speaker 00:
Thank you, unless you have any other questions.

[00:28:14] Speaker 02:
Thank you, Mr. Merrill.

[00:28:16] Speaker 02:
We'll take the case under advisement.