[00:00:37] Speaker 04:
Okay, the next case is number 14, 1403, Deer and Company against Urock, LLC.

[00:00:45] Speaker 04:
Mr. McKelvey.

[00:00:48] Speaker 03:
Good morning, and may I present the court.

[00:00:50] Speaker 03:
Deer is entitled to a new trial, a fair trial where the case is resolved based on the merits.

[00:00:56] Speaker 03:
That's because the trial court erred in allowing the defendants to introduce evidence that is irrelevant and prejudicial through argument, through questions, and through tri-trial testimony.

[00:01:06] Speaker 07:
counselor the the district court ruled that uh... they were not that the court would not prohibit reference to the the failure to follow all applicable references uh... and in the court said that will uh... view objective and the court said

[00:01:30] Speaker 07:
I will rule on this issue on a question by question basis.

[00:01:37] Speaker 07:
And it seems to me that you stopped objecting after a while.

[00:01:44] Speaker 07:
Not at every instance.

[00:01:48] Speaker 07:
In fact, in most of the instances where this

[00:01:51] Speaker 07:
these allegations of inequitable conduct came up or references to inequitable conduct or lack of candor or whatever that you didn't object all the time.

[00:02:04] Speaker 03:
That's correct.

[00:02:05] Speaker 07:
Why didn't you make a

[00:02:07] Speaker 07:
request like a continuing objection to the entire inquiry.

[00:02:11] Speaker 03:
Well, we think if you look at Rule 103, and you look at the different perspectives the court can look at for the purpose of making a judgment about whether we preserved our objections, the second example is the definitive decision by the trial court.

[00:02:25] Speaker 03:
The judge said it would go question by question.

[00:02:27] Speaker 03:
It wasn't question by question to see if it was relevant.

[00:02:30] Speaker 03:
It was question by question to see if it could develop facts to show inequitable conduct.

[00:02:34] Speaker 03:
So he was going question by question where the defendants would present facts on inevitable conduct to try to build a case for inevitable conduct.

[00:02:41] Speaker 07:
But all the time, in your view, it's building in your argument now, every one of those questions added to the prejudice aspect of the jury.

[00:02:51] Speaker 03:
It did.

[00:02:51] Speaker 03:
That's correct.

[00:02:52] Speaker 03:
That was intended to do that.

[00:02:53] Speaker 03:
That is, if we object to, if you look at the, again, 103A,

[00:02:58] Speaker 03:
You can object to a question or a statement or a stray remark, and you want to preserve your objection, you object.

[00:03:06] Speaker 03:
Then you object again.

[00:03:06] Speaker 03:
But this wasn't a stray remark, this was a theme.

[00:03:09] Speaker 03:
And our motion in limine was to attack the theme, to say they shouldn't be able to present evidence of inequitable conduct.

[00:03:15] Speaker 03:
The motion is in limine for that purpose.

[00:03:17] Speaker 03:
If they put us on notice before the trial that they were going to try to argue this, we could have presented it to the judge before trial, but we didn't have the opportunity.

[00:03:23] Speaker 03:
So we argued in our motion that the whole theme is irrelevant and prejudicial.

[00:03:28] Speaker 03:
We're entitled to rely on rule 102 for that purpose.

[00:03:33] Speaker 06:
Well, the question is whether it's clear that those were inappropriate references.

[00:03:40] Speaker 06:
The question is how prejudicial were they?

[00:03:43] Speaker 06:
What's the evidence that they're prejudicial?

[00:03:45] Speaker 03:
Well, we can give you one example of how prejudicial it was.

[00:03:48] Speaker 03:
The last time we were here, the defendants had one theory of non-infringement, that is, the Bushog defendants did.

[00:03:54] Speaker 03:
They argued that the upper deck wall did not connect to the lower deck wall, would not secure the lower deck wall.

[00:04:03] Speaker 03:
They lost that and went back on remand.

[00:04:05] Speaker 03:
They had no new argument on non-infringement.

[00:04:09] Speaker 03:
They went to trial with no defense on non-infringement.

[00:04:11] Speaker 03:
They didn't identify any argument in the pretrial order.

[00:04:14] Speaker 03:
As we went to trial, they offered no evidence on non-infringement.

[00:04:19] Speaker 03:
Didn't call any expert witnesses to testify on non-infringement.

[00:04:23] Speaker 03:
And in closing argument, counsel for Duroc

[00:04:35] Speaker 03:
We're going to have two theories, A, 4682, volume 3.

[00:04:47] Speaker 07:
What page was that, Council?

[00:04:50] Speaker 03:
4682.

[00:05:09] Speaker 03:
and forty six eighty one

[00:05:12] Speaker 03:
Council for Duroff addressed requests for admissions that we had filed before the trial, as even before the appeal up here first time.

[00:05:22] Speaker 03:
And he said, we admitted facts to narrow them for you.

[00:05:25] Speaker 03:
This is page 4681, line 6.

[00:05:28] Speaker 03:
We admitted facts to narrow them for you.

[00:05:30] Speaker 03:
We admitted facts because we were being candid, candid with the court, candid with our open to opposing counsel, candid with you so you don't have to look any further.

[00:05:38] Speaker 03:
Then on page 4682,

[00:05:45] Speaker 07:
Now who's making these comments?

[00:05:47] Speaker 07:
Is Mr. Martin?

[00:05:49] Speaker 03:
Okay.

[00:05:49] Speaker 03:
4682, the first full paragraph reads, so if you go through these, you have a W structure that connects the decks.

[00:05:57] Speaker 03:
If you have another W structure, you have vertical structures, not sloped structures that connect the decks.

[00:06:03] Speaker 03:
I know you didn't see this in some detail during Mr. Parrish's cross-examination, but you didn't have the slope that's interrupted by a vertical space.

[00:06:13] Speaker 03:
That particular thing, before I go to the Buckmore patent, that particular thing defeats infringement, and it defeats infringement with regard to the word slope.

[00:06:22] Speaker 03:
That's the first notice we had that they were arguing that we failed to show a slope in the defendant's accused products, that is, the bush hog products.

[00:06:32] Speaker 03:
The other thing that defeats imprisonment, this is one of those issues that Deer just wants in both ways, is the torsional stiffness.

[00:06:38] Speaker 03:
It's definitely true that 2715 has torsional stiffness.

[00:06:41] Speaker 03:
That's the accused product from the box section.

[00:06:45] Speaker 03:
Deer has never done any measurement of that.

[00:06:48] Speaker 03:
Equally true, by the way, the M&W does.

[00:06:51] Speaker 03:
So if Deere wants to have it one way or the other, he can't have it the other way for the opening.

[00:06:56] Speaker 03:
So he's arguing two theories of non-infringement, slope and torsional stiffness.

[00:07:05] Speaker 03:
If you look at the request for admission, we file in volume 3, page 5080 to 5083.

[00:07:22] Speaker 03:
You look at page 5083, request number 25.

[00:07:30] Speaker 03:
Admit that each of the accused product deck sections has torsional stiffness.

[00:07:34] Speaker 03:
Response admitted.

[00:07:36] Speaker 03:
So he went on to tell the jury that this was just a technical list.

[00:07:43] Speaker 03:
He said 4681.

[00:07:51] Speaker 03:
4681.

[00:08:02] Speaker 03:
Talking about technical defenses, these are technical defenses in line 22.

[00:08:04] Speaker 03:
We're talking about technical defenses.

[00:08:07] Speaker 03:
These are technical defenses that words matter.

[00:08:11] Speaker 03:
So what he did, he told the jury that they have two defenses to non-enfranchisement, lack of proof of slope and lack of proof of torsional stiffness.

[00:08:18] Speaker 03:
That's the first time in trial that we learned that during his closing argument.

[00:08:21] Speaker 03:
They did not preserve it before, they didn't put it on notice of it.

[00:08:24] Speaker 03:
That's good evidence of the prejudice that we suffered as a result of misconduct by counsel.

[00:08:39] Speaker 03:
If you find that we did not preserve the objection by proceeding a definitive decision by the court, you can still find plain error.

[00:08:47] Speaker 03:
Plain error would be introducing this evidence of inequitable conduct without having pledged.

[00:08:57] Speaker 03:
We have also moved for judgment as a matter of law on a number of issues.

[00:09:00] Speaker 03:
One is infringement for the reason I just set out.

[00:09:03] Speaker 03:
That is, we went through the trial offering testimony and evidence of the defendant's products infringed.

[00:09:09] Speaker 03:
The defendants had no defense to it, offered no affirmative evidence other than argument of counsel.

[00:09:16] Speaker 03:
We're also entitled to the judgment as a matter of law and no anticipation.

[00:09:19] Speaker 03:
The verdicts on anticipation depended on clear claim construction with the court construed upper deck walls had no limitation on size.

[00:09:31] Speaker 03:
We think that's wrong.

[00:09:33] Speaker 07:
Let's go back a little bit to what you were saying about the arguments that were made for the first time regarding the slope and also the torsional stiffness.

[00:09:44] Speaker 07:
and you're saying you were prejudiced by those arguments being made for the first time.

[00:09:50] Speaker 07:
Right.

[00:09:51] Speaker 07:
Without evidence being presented.

[00:09:53] Speaker 07:
But does that go to the issue that you have fully briefed and that were here before, that's here before us today, dealing with the lack of candor and the references that were made to inequitable conduct?

[00:10:09] Speaker 03:
It does, because

[00:10:14] Speaker 03:
they had no defense based on infringement yet they took the case to trial and the theory that they must have had was that they would poison the jury and went on non-infringement because the jury was poisoned to not trust the credibility of dears witnesses if you go back and look at the misconduct of offering evidence on what prior art was before the patent office let me follow up with two things if you look at

[00:10:45] Speaker 03:
The very first quote that we cite is page three.

[00:11:01] Speaker 03:
It should be after the judge said that he will go question by question, and we think it was irrelevant question by irrelevant question.

[00:11:09] Speaker 03:
Council for Great Plains stood up and said to the witness by the name of Deborah Harrison.

[00:11:16] Speaker 03:
Deborah Harrison was an engineer at Deere, who's already testified by the time of this question that she played no role in the patent prosecution, no role in deciding what prior art was going to be sent to the Patent Office.

[00:11:27] Speaker 03:
The question is, isn't it true, and it's true, isn't it, that Deere didn't tell the Patent Office about Mr. Oka's prior patent when it was pursuing the 980 patent?

[00:11:37] Speaker 03:
I object it.

[00:11:38] Speaker 03:
That was the time for the court to hear our objections.

[00:11:41] Speaker 03:
This was irrelevant and prejudicial.

[00:11:44] Speaker 03:
But the judge denied the objection by overruling it without asking counsel to comment on it one way or the other.

[00:11:49] Speaker 03:
That was the message to us.

[00:11:51] Speaker 03:
We were headed down a road of misconduct and prejudice without the opportunity to really oppose it.

[00:11:57] Speaker 07:
Was the reason that the district court delayed its ruling because it wanted to see if

[00:12:04] Speaker 07:
a council could lay a foundation for an allegation of inequitable conduct?

[00:12:10] Speaker 03:
I think that's what the judge was doing.

[00:12:12] Speaker 03:
That is, he was saying, I will allow you to ask questions to see if you can develop facts to support inequitable conduct.

[00:12:18] Speaker 03:
But that's prejudicial and it's irrelevant facts.

[00:12:21] Speaker 03:
And if you look at it from our perspective, look at this question.

[00:12:24] Speaker 07:
Was there any discovery on this issue?

[00:12:27] Speaker 03:
Well, yes, there was.

[00:12:28] Speaker 03:
They argued, for example, there shouldn't be any

[00:12:33] Speaker 03:
If you look at the chart, the demonstrators, the defendants used at page 31, note that they presented testimony about what art was provided by, not provided by dear, that's the right-hand column.

[00:12:59] Speaker 03:
There was discovery on this.

[00:13:01] Speaker 03:
On the M&W, they asked Mr. Oakes, the patent prosecuting attorney, was he aware of the M&W?

[00:13:09] Speaker 03:
And he said no.

[00:13:11] Speaker 03:
They asked the inventor, Mr. Friesen, what priority he was aware of, and he didn't identify the M&W.

[00:13:17] Speaker 03:
So there was discovery on that.

[00:13:19] Speaker 03:
And they had no good faith basis for believing that either of the two people who prosecuted the patent, the inventor, or the lawyer, were aware of the M&W.

[00:13:26] Speaker 07:
Well, your expert actually testified that he was aware of the prior patents.

[00:13:31] Speaker 07:
But then, I guess that evening, you followed a declaration that changed that, and that's when you followed your motion in Lemony as well.

[00:13:40] Speaker 03:
Actually, it wasn't our expert, it was another engineer.

[00:13:43] Speaker 07:
Okay.

[00:13:44] Speaker 03:
And he did, he had no involvement in the prosecution's patent.

[00:13:47] Speaker 03:
So whether he was aware of the M&W or not is irrelevant.

[00:13:51] Speaker 03:
And if you look at the, let me give you another example, Your Honor.

[00:13:55] Speaker 03:
The second piece of art down there below there is not provided or considered by the examiner.

[00:13:59] Speaker 03:
It suggests that Deer was aware of Gunn-Winston.

[00:14:03] Speaker 03:
There's no evidence that anybody at Deer was aware of Gunn-Winston at the time that that was being prosecuted.

[00:14:08] Speaker 03:
So you ask whether there was discovery on this issue.

[00:14:12] Speaker 03:
They had a full chance to take discovery.

[00:14:14] Speaker 03:
They didn't plead in equitable conduct, yet they tried it in an equitable conduct case.

[00:14:18] Speaker 03:
If you look at it from our perspective, how do we respond to this question that I identified a minute ago?

[00:14:25] Speaker 03:
That is, Mr. Oka's patent wasn't disclosed by deer.

[00:14:32] Speaker 03:
Do we argue that it's not material?

[00:14:33] Speaker 03:
Do we argue that there was no notice that these people had the intent to deceive?

[00:14:39] Speaker 03:
That they were even aware of the Oka patent?

[00:14:41] Speaker 03:
We have no ability to really respond to this.

[00:14:43] Speaker 03:
And we're ejecting in front of the jury each time to this misconduct.

[00:14:47] Speaker 03:
It just poisons the jury against us anyway.

[00:14:50] Speaker 03:
So as we noted in our brief, it's up to the judge to protect us from this.

[00:14:54] Speaker 03:
And we renewed our motion a number of times.

[00:14:56] Speaker 03:
We renewed our motion in one context or another about seven times.

[00:15:00] Speaker 03:
The judge ruled against us seven times.

[00:15:06] Speaker 04:
All right.

[00:15:07] Speaker 04:
Let's hear from the other side, Mr. McKelvey.

[00:15:09] Speaker 04:
Let's save you a couple of times.

[00:15:20] Speaker 04:
Mr. Martin?

[00:15:22] Speaker 05:
Yes.

[00:15:29] Speaker 02:
may it be the court my name is correct martin i represent uh... one of the three defendants direct uh... that was tried at during this jury trial in iowa uh... the other two defendants are separately wrote represented in a beach resort one-minute if there's something that we don't have a mr martin please speak up that's what one of my colleagues told me too so i'll try to speak up so we should listen to your call i i should very wide colleagues the uh... in terms of uh... so i'm correct martin i represent direct

[00:16:00] Speaker 02:
Basically, let me get to the issues.

[00:16:01] Speaker 02:
After losing a three-week jury trial on anticipation, obviousness, written description, and infringement, after 95 hours of testimony, 3,000 pages of transcript, 668,000 words typed up, according to my estimates, with 25 witnesses testifying, Deere now seeks to ask for a new trial and seeks to overturn and undo the jury's verdicts.

[00:16:29] Speaker 07:
based on what they may say is a couple of straight comments made by one of the problem you're pursuing a theory of an equitable conduct uh... and we're going to have a reference of them too uh... duty of candor and equitable conduct when when you know that there's a pending motion of lemony dealing with this particular issue i realize that the judge had ruled on it but you as an officer of the court

[00:16:55] Speaker 07:
Shouldn't you be a little cautious as to reference this to something that you're not eventually going to approve?

[00:17:01] Speaker 02:
Absolutely.

[00:17:03] Speaker 02:
And in terms of just so that we've got it straight and clear, the words inequitable conduct are never used by us during the trial.

[00:17:12] Speaker 06:
But candor was used any number of times.

[00:17:15] Speaker 02:
Candor is used three times during the course of the trial, the words candor.

[00:17:21] Speaker 02:
And candor appears in the jury instructions as well because the judge instructs the jury with regard to witnesses credibility and candor and so forth and so forth, bias, et cetera, that you can look at candor.

[00:17:37] Speaker 02:
The words duty of candor, just to be absolutely clear, by agreement of the parties, the court showed a video at the outset of the case of video I'm sure you're very familiar with.

[00:17:50] Speaker 02:
in which the video goes through the process of obtaining a patent.

[00:17:56] Speaker 02:
And it says, here's the way you obtain a patent, here's the way the process works, there's the duty of candor and so forth and so forth, as well as a number of other things.

[00:18:04] Speaker 02:
It's the one with the big stacks of paper in it, if you've seen it.

[00:18:08] Speaker 02:
And during my opening statement, as I'm going through the opening statement and I'm explaining the patent, I say, and as you just heard during the patent video, there is also, this is the way the process works, and I use those three words.

[00:18:20] Speaker 02:
no objection anywhere to any of times that I'm using those words.

[00:18:24] Speaker 06:
Did you use it again later?

[00:18:25] Speaker 02:
No.

[00:18:26] Speaker 02:
Duty of candor, never again.

[00:18:28] Speaker 02:
And in fact, the way the issue, it's probably important to put this in context so that you all understand what our basic view on this is.

[00:18:38] Speaker 02:
Look, this is a three week jury trial with lots of stuff going on.

[00:18:43] Speaker 02:
And in terms of the number of questions that they object to today, but they didn't object to then, it's about 8, 9, 10 questions by my count.

[00:18:56] Speaker 02:
In terms of the reality of what was going on in the courtroom and the reality of the case is much different than the reality that Deere would like you to believe here today.

[00:19:07] Speaker 02:
In terms of

[00:19:09] Speaker 02:
The way this issue comes up at the very beginning of the trial that there are two motions that are filed after opening statements.

[00:19:17] Speaker 02:
And here's the context.

[00:19:19] Speaker 02:
There is a, Deer did not decide it for reasons I have no idea why, did not call the inventor to testify at trial.

[00:19:28] Speaker 02:
And prior to the trial, they decided to use a fellow named Antonio Grande to testify as to the invention story.

[00:19:36] Speaker 02:
And we said, hey, he's not disclosed under Rule 26 as somebody who's going to testify about the invention story.

[00:19:43] Speaker 02:
We should get to take his deposition.

[00:19:45] Speaker 02:
The court said, no, we will require him to give you a declaration.

[00:19:52] Speaker 02:
And Mr. Grande, before the trial began, before openings or anything else, provided a declaration.

[00:19:58] Speaker 02:
And the declaration said, I was aware of the following prior art at the time of the invention.

[00:20:05] Speaker 02:
And one of the things that he said he was aware of was the M&W, which is critical to the case in terms of the anticipation argument and the obviousness argument.

[00:20:15] Speaker 02:
Sorry, which is critical, I should take the advice of that colleague, which is critical to the anticipation case and the obviousness case.

[00:20:24] Speaker 02:
So Grande says, I'm aware of it.

[00:20:26] Speaker 02:
We do our openings.

[00:20:27] Speaker 02:
In fact, I do my opening.

[00:20:28] Speaker 02:
And I say, and you're going to hear from Mr. Grande, who's involved in the invention.

[00:20:32] Speaker 02:
And he's going to say he's aware of these three pieces of prior art.

[00:20:36] Speaker 02:
That evening, Deer sends over a corrective declaration of Grande that says he wasn't aware of the M&W.

[00:20:44] Speaker 02:
So we file a motion to bar Mr. Grande from testifying.

[00:20:48] Speaker 02:
They file a motion to bar inequitable conduct.

[00:20:52] Speaker 02:
We show up the next morning because the court's very careful.

[00:20:55] Speaker 02:
He's got a half an hour set aside every morning in order to clear out any issues.

[00:21:00] Speaker 02:
28 years on the bench, 200 patent cases.

[00:21:04] Speaker 02:
Judge Woolley from Iowa.

[00:21:07] Speaker 02:
And Deer says, we can't have arguments of inequitable conduct.

[00:21:13] Speaker 02:
And the judge says, are you guys pursuing it?

[00:21:15] Speaker 02:
And I said, I shrug.

[00:21:18] Speaker 02:
Then he says, do you have an inequitable conduct defense?

[00:21:20] Speaker 02:
And I say, no.

[00:21:22] Speaker 02:
And then he says something like, I forget what his question was.

[00:21:25] Speaker 02:
And I say, we don't have evidence of inequitable conduct.

[00:21:28] Speaker 02:
It's not here.

[00:21:29] Speaker 02:
We never use those words during the case.

[00:21:33] Speaker 02:
Our motion then to bar Mr. Grande is denied.

[00:21:38] Speaker 02:
Now, the judge also in denying it says, hey look, and I'll quote what the judge says, I will have to go question by question to determine whether the requested answer to the question pertains to inequitable conduct or might be relevant to some other issue.

[00:21:54] Speaker 02:
I think Deer's motion to change the case by eliminating any possibility of suggestion that your client is unethical or inequitable is too broad.

[00:22:03] Speaker 02:
And then the judge looks at us and he says, I'm denying your motion too.

[00:22:07] Speaker 02:
And I don't know why you trial lawyers make motions like this, because I would think you would relish the opportunity to cross-examine the guy who just flipped on his testimony.

[00:22:17] Speaker 02:
That's the way, that's why you get into this issue at the outset of the case.

[00:22:21] Speaker 02:
And then it's really not an issue in the case.

[00:22:24] Speaker 02:
Because there's only one question, and Mr. McKelvey just highlighted the one question during Deborah Harrison's testimony asked by one of the other defendants that says something about OCA being disclosed or not disclosed to the Patent Office.

[00:22:37] Speaker 02:
That's the single objection to a question.

[00:22:40] Speaker 02:
And then there's another motion to strike while Deira is cross-examining one of our expert witnesses.

[00:22:45] Speaker 02:
Now, it is, I think, really also important

[00:22:51] Speaker 02:
to understand the way the case begins to get this in context, because this is the briefs that are before you try to portray a false reality of what happened at a three-week jury trial.

[00:23:03] Speaker 02:
The case begins with Deere calling their first witness, and their first witness is a woman named Deborah Harrison.

[00:23:10] Speaker 02:
Deborah Harrison testified that she's the senior engineer for rotary cutters at the time of the invention.

[00:23:17] Speaker 02:
She testified about Deere's motivation to develop this product.

[00:23:20] Speaker 02:
She testifies that she knows the inventor, and she also knows a guy named Ken Oka who worked in the department at the time that they were developing this, and she tells the invention story.

[00:23:32] Speaker 02:
She testifies, and during this testimony Deere admits documents that had already been agreed would be in evidence.

[00:23:40] Speaker 02:
One is an invention disclosure, an internal Deere document that lists prior art.

[00:23:47] Speaker 02:
A second is the prosecution history, which I'm sure you're very familiar with prosecution histories.

[00:23:53] Speaker 02:
And then the third is the patent.

[00:23:56] Speaker 02:
And then Ms.

[00:23:56] Speaker 02:
Harrison, as she's testifying, she reads those portions.

[00:24:01] Speaker 02:
She says, look in the invention disclosure, this invention disclosure, this was the most important prior art.

[00:24:07] Speaker 02:
And then she testifies about the prior art that's listed in the invention disclosure, which includes the rhino, the bush hogs, and the woods brochures.

[00:24:16] Speaker 02:
And she says, well, the woods one was of interest, and the others really weren't of interest.

[00:24:23] Speaker 02:
So the very evidence that they complain about today, and they make a big deal about trying to take out of context, was put into the case by year at the very outset of the case.

[00:24:34] Speaker 02:
So it was crystal clear, juries are nuts.

[00:24:38] Speaker 02:
Juries are very wise.

[00:24:41] Speaker 02:
And they pay attention, in my experience, they pay attention to things.

[00:24:46] Speaker 02:
It was obvious, not the way you all would use that term, but it was obvious that this prior art was provided to the patent office by year, other prior art wasn't, and there's other prior art that's just out there that the patent examiner found.

[00:25:02] Speaker 02:
And that's really important.

[00:25:04] Speaker 02:
That was important to us, to be quite honest.

[00:25:07] Speaker 02:
That was important to us because we were pursuing theories along the I4I case.

[00:25:12] Speaker 02:
and so forth.

[00:25:13] Speaker 02:
And we were essentially arguing to the jury that this was anticipated, obvious, no adequate written description.

[00:25:20] Speaker 02:
So Judge Raina, to go back to your question, absolutely, we were as, not to overuse the word candor, we were as straightforward with the court as we could possibly be about what we intended to do and didn't intend to do.

[00:25:36] Speaker 02:
And Deere had every opportunity

[00:25:41] Speaker 02:
to object.

[00:25:41] Speaker 02:
And I'll give you an example.

[00:25:44] Speaker 02:
There was a rule that was put in place in the court by the very experienced trial judge.

[00:25:50] Speaker 02:
And he said, look, demonstrative exhibits, you've got to show everybody your demonstrative exhibits 24 hours in advance.

[00:25:57] Speaker 02:
And then when you get there in the morning, if there's any objections, we'll go through it.

[00:26:03] Speaker 02:
Well, one of the demonstrative exhibits that Deere highlights in their brief is this one.

[00:26:08] Speaker 02:
And what it says is what's considered by the patent office, what was provided by Deere, what the patent examiner found, and then it says what wasn't considered by the patent examiner.

[00:26:21] Speaker 02:
That information comes straight out of the invention disclosure, the prosecution history, and other prior art that our experts are putting on during trial.

[00:26:30] Speaker 02:
Does Deere object to any of the language on our demonstrative exhibit?

[00:26:34] Speaker 02:
No, not whatsoever.

[00:26:36] Speaker 02:
So now they come to court and they take a handful of questions that are asked by different lawyers representing different defendants saying things like, well, was that before the patent office?

[00:26:47] Speaker 02:
They said, well, I should have objected.

[00:26:50] Speaker 02:
I wish I could have objected to that because it would have poisoned the jury if I did.

[00:26:54] Speaker 02:
It just doesn't ring true in the context of this case.

[00:26:59] Speaker 02:
And in terms of, so that's the way the case started out.

[00:27:04] Speaker 02:
And basically, look, I tell everyone that jury trials depend on the nature and quality of the witnesses and the nature and quality of the evidence.

[00:27:20] Speaker 02:
And the judge, Deer, made a very similar argument in post trial.

[00:27:24] Speaker 02:
And the judge, by the way, found that Deer forfeited that argument, which was not in their opening brief.

[00:27:31] Speaker 02:
And here's what the judge said about the trial.

[00:27:35] Speaker 02:
It is apparent from the jury's special verdicts and the court's observations during the trial that the jury found credible the defendant's expert witnesses and not Deer's expert witnesses.

[00:27:48] Speaker 02:
You know, sometimes you win trials and sometimes you lose trials, but you usually win and lose on the basis of the credibility of the witnesses.

[00:27:55] Speaker 02:
And as we pointed out in our brief, each of Deer's witnesses, they were impeached, they testified inconsistently, they fought the documents, they tried to walk away from emails, and we pointed that out robustly to the jury.

[00:28:11] Speaker 02:
With regard to the point that Mr. McKelvey was making about infringement,

[00:28:16] Speaker 02:
Deer have the burden of proof, and by the way, I will tell you right now that our strongest arguments are, I love all my children equally, but it's obviousness and anticipation and inadequate description and infringement.

[00:28:32] Speaker 02:
They're all great arguments.

[00:28:33] Speaker 02:
Can I have 20 seconds of one of my colleagues' time so that I can finish the point?

[00:28:40] Speaker 02:
With regard to infringement, deer have the burden.

[00:28:45] Speaker 02:
Beer actually did not even compare the product at issue to the patent.

[00:28:51] Speaker 02:
They failed to meet their burden of proof.

[00:28:55] Speaker 02:
We demonstrated when we cross-examined their expert who testified for a total of eight hours that he had not even considered Sloak informing his opinions.

[00:29:08] Speaker 02:
We cross-examined him to the point that I would submit, and the judge would support this, I think, that he was found not credible.

[00:29:15] Speaker 02:
but you're just blatantly failed to meet their burden of proof at a three-week jury trial.

[00:29:21] Speaker 02:
And now they want to undo it by some casual references that they say amounts to inactable conduct.

[00:29:27] Speaker 02:
This, I submit to you, was a just trial.

[00:29:30] Speaker 02:
It was a fair trial, and it was presided over by a very experienced federal judge who controlled that courtroom.

[00:29:36] Speaker 04:
Thank you.

[00:29:44] Speaker 04:
Mr. Hedgey.

[00:29:47] Speaker 01:
Mr. Brown, Your Honor.

[00:29:48] Speaker 01:
Scott Brown here on behalf of Great Plains Manufacturing.

[00:29:52] Speaker 04:
You have one minute.

[00:29:53] Speaker 04:
Please talk fast.

[00:29:54] Speaker 01:
I will, Your Honor.

[00:29:55] Speaker 01:
On this appeal, Deere has not urged that Great Plains non-infringement jury verdict would lack substantial evidence.

[00:30:03] Speaker 01:
On this appeal, Deere has not urged that Great Plains non-infringement jury verdict was against the great weight of the evidence.

[00:30:09] Speaker 01:
So even if this court determines that Deere preserved for appeal the error that is assigned now, this court would have to find that what the federal judge said were scattered bits of evidence and argument in a voluminous trial record resulted in a miscarriage of justice.

[00:30:26] Speaker 01:
Under the Eighth Circuit standard for miscarriage of justice, the court would have to find that there was insufficient evidence to support the non-infringement verdict.

[00:30:35] Speaker 01:
a showing that Deere has not attempted to make on this appeal.

[00:30:38] Speaker 01:
Consequently, although we believe for all of the reasons that our co-defendants have urged, all of these verdicts should be affirmed.

[00:30:45] Speaker 01:
At a minimum, the court should affirm Great Plains non-infringement verdict, which is essentially not attacked by Deere on this appeal.

[00:30:53] Speaker 01:
That's my submission, unless the panel has any questions.

[00:31:02] Speaker 00:
Okay, okay in that case Mr. McKelvey

[00:31:24] Speaker 03:
We didn't hear a defense of the stray comments that council made about how the Patent Office was treated, about how deer failed to provide art to the Patent Office.

[00:31:34] Speaker 03:
We didn't hear them respond to this issue of how do we deal with questions that pose to witnesses

[00:31:42] Speaker 03:
the question of whether art was provided to the Patent Office without dealing with the issue of whether it was material prior art or not material prior art.

[00:31:49] Speaker 03:
How do we respond to the issue of alleged inequitable conduct, contending that we intended to mislead the Patent Office?

[00:31:57] Speaker 03:
The jury didn't get instructed on any of these issues, and the trial court was mistaken to allow these questions to go forward.

[00:32:04] Speaker 03:
If you look at the judge's decision after trial,

[00:32:11] Speaker 03:
He said a number of different things about the questions.

[00:32:14] Speaker 03:
That is, they weren't relevant, or maybe they were relevant.

[00:32:20] Speaker 03:
and he didn't want to call attention to the subject.

[00:32:22] Speaker 03:
Remember the objection that we had on the twelfth day of trial where he said that the allegations of failure to provide art to the patent office was the pink elephant in the room during the trial, and that he didn't want to address it to the jury.

[00:32:34] Speaker 03:
So we ended up going to the jury on issues that were not relevant, that are highly prejudicial and unfair to us, and it spilled over to the balance of the case.

[00:32:42] Speaker 03:
And it's correct that we did not argue in the brief that we were entitled to reversal of the

[00:32:48] Speaker 03:
judgment of non-infringement by Great Plains, but we do think that part of the prejudice was reflected in that verdict and that it should go back to the jury also.

[00:33:00] Speaker 03:
I'd like to argue about the obviousness for a minute, but I think my time is probably up.

[00:33:04] Speaker 03:
I can do it, I can try it.

[00:33:07] Speaker 03:
The defendants went into the trial with two witnesses, one from each of the defendants, saying that people in the rotary cutter business would not look to lawn mowers for the purpose of deciding how to design a rotary cutter.

[00:33:24] Speaker 03:
So they had a problem about motivation to combine.

[00:33:27] Speaker 03:
They couldn't offer proof of motivation to combine.

[00:33:29] Speaker 03:
So what did they do?

[00:33:30] Speaker 03:
They didn't offer proof of motivation to combine.

[00:33:33] Speaker 03:
And they asked the court to give an instruction that didn't include a requirement that the jury looked to motivation to comply.

[00:33:40] Speaker 03:
That's also error that the court should reverse.

[00:33:44] Speaker 03:
Thank you.

[00:33:46] Speaker 03:
Any further questions?

[00:33:49] Speaker 04:
Thank you.

[00:33:50] Speaker 04:
Thank you all.