[00:00:00] Speaker 00: Court is Diamondback Firearms versus Salio Inc. [00:00:06] Speaker 00: Mr. Santuri, you want three minutes for rebuttal? [00:00:10] Speaker 00: Okay. [00:00:22] Speaker 00: Wait one second for Mr. Spears to say. [00:00:30] Speaker 00: Okay, you may begin. [00:00:33] Speaker 05: Thank you, Your Honor. [00:00:34] Speaker 05: May it please the Court? [00:00:35] Speaker 05: My name is Ryan Santuri, and I represent Diamond Backfire, the appellant in this case, and the deck action plaintiff in the lower decision. [00:00:47] Speaker 05: Your Honor, there are three issues before the Court today, the first two of which relate to claim construction. [00:00:52] Speaker 05: First, did the District Court err by refusing to specifically define the term half-cocked within the context of [00:01:00] Speaker 05: the 914 patent. [00:01:02] Speaker 05: An interrelated issue is whether the term half-cocked is actually invalid for indefiniteness. [00:01:10] Speaker 05: And then finally, the third issue is whether the trial court erred by denying JMOL with respect to invalidity by both anticipation and obviousness. [00:01:21] Speaker 00: Now... Are either of these claim construction issues dispositive with respect to the question of validity? [00:01:28] Speaker 05: Well, certainly with respect to the, in the context of indefiniteness, they would be dispositive of it because one of the issues is whether the trial court erred in not finding half court, half cocks. [00:01:42] Speaker 00: Say we don't find that that was an error. [00:01:45] Speaker 00: Yes, Your Honor. [00:01:47] Speaker 00: If we disagree with either of the claim constructions, does that affect the validity issue or does it only affect infringement? [00:01:55] Speaker 05: It may affect both depending on whether the court selects another construction or whether the court remands to the district court for a new construction. [00:02:06] Speaker 05: So depending, so there were- Can we adopt your construction? [00:02:10] Speaker 05: Then yes, Your Honor. [00:02:10] Speaker 05: It would impact infringement. [00:02:12] Speaker 05: It would likely not impact the validity. [00:02:15] Speaker 04: So you didn't ask for any relief by way of a new trial? [00:02:20] Speaker 04: I believe- You only asked for it on non-infringement? [00:02:24] Speaker 05: I believe we did ask for a new trial with respect to claim construction for purposes of non-infringement, but neither side really conceded that the primary reference, the Glock patent, disclosed a half-cocked position to the extent that one understands what that term means. [00:02:39] Speaker 00: Okay. [00:02:39] Speaker 00: So just so I got it, if we disagree on one of the claim constructions, then you get to argue infringement again, is that what you're saying? [00:02:49] Speaker 00: But the validity issues are separate. [00:02:52] Speaker 05: I believe so, Your Honor. [00:02:53] Speaker 05: Except for the indefinite. [00:02:54] Speaker 05: Except for the indefinite. [00:02:57] Speaker 05: Well, there is at least one potential construction that was advanced during the trial court that would impact validity as well. [00:03:08] Speaker 05: It's not on here. [00:03:10] Speaker 05: No, it's not, Your Honor. [00:03:11] Speaker 05: However, if the court remanded and that construction was adopted by the court on remand, then it would change [00:03:17] Speaker 05: the nature of the validity analysis. [00:03:20] Speaker 04: That claim construction that you claim is driving the invalidity issues isn't in front of us. [00:03:26] Speaker 05: Well, Your Honor, that's part of the reason why we're here is that we didn't really have a construction to go on. [00:03:31] Speaker 05: We had the denial of Diamondback's construction. [00:03:35] Speaker 05: But beyond that, the court refused to take any further steps in construing the claims. [00:03:40] Speaker 05: In fact, the court's order said, I'm denying Diamondback's construction, but I'm stopping my analysis there. [00:03:46] Speaker 05: And so what we were left with at trial was Diamondback in a position where it couldn't really discuss the meaning of terms. [00:03:52] Speaker 05: It couldn't advance its own constructions. [00:03:54] Speaker 05: While Carr's representatives, Carr's expert could say on the one hand, it's not a well-defined term. [00:04:03] Speaker 05: Then later he said, it can be anywhere in the intermediate to fully cost and striking position, but when faced with [00:04:09] Speaker 05: the Dunn reference, he said, well, actually it's not anywhere. [00:04:13] Speaker 05: We actually have to shift that position some, because otherwise that would overlap with Dunn. [00:04:18] Speaker 05: And that's where I say that to the extent that there was a construction provided that's similar to one of Mr. Bradbury's cars, experts, if that construction were adopted by the court on remand, then that would actually change the analysis of one of the references. [00:04:36] Speaker 05: Unfortunately, we could never really [00:04:37] Speaker 05: That was one of many scenarios that could never play out because despite the arguments advanced during claim construction and the testimony at trial, the court continued to refuse actually selecting a term or a definition for the term half cocked. [00:04:52] Speaker 00: So I assume that your firearms hold somewhere in an intermediate position, but not exactly in the middle. [00:05:02] Speaker 05: Yes, Your Honor. [00:05:03] Speaker 05: So the diamondback firearms [00:05:05] Speaker 05: were designed to have an intermediate. [00:05:08] Speaker 05: So the position is intermediate, the fully cocked and striking position. [00:05:12] Speaker 05: However, by design, it was intended not to have any spring compression at that intermediate point. [00:05:19] Speaker 05: And so it wouldn't infringe if the court determined that the midpoint was required as part of a half-cock definition. [00:05:28] Speaker 05: I believe that it also wouldn't infringe. [00:05:30] Speaker 04: They're going to maintain in a half-cock position by something other than the spring. [00:05:35] Speaker 05: Your Honor, well, that's part of the issue. [00:05:38] Speaker 04: I mean, Judge Miles was just asking you about your device. [00:05:44] Speaker 05: Yes, Your Honor. [00:05:46] Speaker 05: And the device is, so when you rack the slide, the cocking and releasing element moves from one side of the striker to the other. [00:05:56] Speaker 05: However, it's not really engaged at that position as the firearm's designed. [00:06:01] Speaker 05: There's no spring pressure there. [00:06:03] Speaker 05: There's actually, depending on how the tolerances stack up, there actually can be a little bit of movement there to where it can float. [00:06:11] Speaker 05: That's really part of the construction that was advanced is the notion that both sides agree that to cock a firearm means to compress the spring, to get it into a position so that it can discharge the firearm. [00:06:26] Speaker 05: If you are, when we are talking about cocking a firearm, as it's described in the 914 patent and in the art, the idea is you're compressing the spring such that there's enough energy there so that it can cause a detonation if the striker is released. [00:06:43] Speaker 04: But your gun is half cocked without any spring compression. [00:06:45] Speaker 05: Well, Your Honor, we take the position that it's not half cocked. [00:06:48] Speaker 04: It's in a ready-to-fire position. [00:06:51] Speaker 04: For purposes of argument, on the half-cockedness being in the midpoint as opposed to someplace else, assume we agree with the district court on that piece of the construction, and that what we're concerned about is whether or not the spring has to be partially compressed at all times. [00:07:07] Speaker 05: Right. [00:07:07] Speaker 05: Then it would not infringe under... It would take it... Right. [00:07:10] Speaker 04: Just for purposes of claim construction, because I think your claim construction argument is that the spring has to be in the half-cocked position. [00:07:18] Speaker 04: It's maintained in that position by the spring. [00:07:21] Speaker 05: Exactly right, Your Honor. [00:07:22] Speaker 04: Now, if you look at the claim language, the claim language disagrees with you. [00:07:26] Speaker 05: Well, and I disagree with the court on that. [00:07:28] Speaker 04: Will you look at the claim language? [00:07:30] Speaker 04: Yes, sir. [00:07:30] Speaker 04: At the top of column five and claim one. [00:07:35] Speaker 04: And claim one has gone through the litany of all the parts that are in the machine talking about the first biasing means, which is the spring. [00:07:43] Speaker 04: And it goes down. [00:07:44] Speaker 04: Then it begins to talk about a cocking and releasing element. [00:07:49] Speaker 04: Which is stuff 21 is down there where the cam is, right? [00:07:52] Speaker 04: Yes, your honor. [00:07:53] Speaker 04: And then the claim goes on to say that said cocking and releasing element and said first position maintaining said striker in the half cock position. [00:08:04] Speaker 04: Yes, your honor. [00:08:06] Speaker 04: So what is maintaining the half cock position is not the spring, not the first biasing means, it's this. [00:08:15] Speaker 04: And in your brief, you sort of recognize that, and you say, oh, well, it may not be directly. [00:08:21] Speaker 04: The spring may not be directly maintained, but it's indirectly maintained. [00:08:25] Speaker 05: Well, it's only maintaining the position if there is spring pressure on the other side. [00:08:28] Speaker 05: So the striker is flanked on one side by the cocking and releasing. [00:08:32] Speaker 04: My point is, why wouldn't a person of ordinary skill reading this language understand that the half cock position is not maintained by the spring? [00:08:43] Speaker 05: I believe that it has to be maintained by both the spring and the cocking and releasing element. [00:08:48] Speaker 04: But wouldn't you think then that the language would have said said cocking and releasing element and related elements or said cocking and releasing element in conjunction with the first biasing means maintains the striker and the half cock position? [00:09:06] Speaker 05: No, Your Honor, respectfully, I disagree with that. [00:09:09] Speaker 04: Wouldn't that have been nice and clear language to support your point of view? [00:09:12] Speaker 05: Well, I think that this claim could have been written in a lot of ways that would be more clear for us. [00:09:17] Speaker 04: One, if you've got a public notice function of claims, and I'm about to go out and make a new gun, and I need to know whether or not the spring element is what's going to hold the gun in the Hapcock position, or what am I going to infringe? [00:09:38] Speaker 05: Your Honor, I think the description of half cocked position is where spring pressure goes into there. [00:09:45] Speaker 05: There's no reason to say that it's maintained by both the cocking and releasing element and the spring because it's maintained in said half cocked position. [00:09:53] Speaker 05: And if you step forward, or I'm sorry, step further back in the claim, it describes that the cocking and releasing element is movable into engagement in its first position [00:10:06] Speaker 05: when the striker is in a half cocked position, intermediate to fully cocked and striking position. [00:10:12] Speaker 05: And so Diamondback's argument really is that within the term half cocked, necessarily there is spring pressure there. [00:10:18] Speaker 05: And that's why you don't need to, when you go further down in the claim and say that it's maintaining it. [00:10:23] Speaker 04: But it doesn't need to be so. [00:10:24] Speaker 04: I mean, your own gun proves it doesn't need to be so. [00:10:27] Speaker 03: Well, that's why Diamondback contends that it doesn't have a half cocked position. [00:10:31] Speaker 03: Where in the claim language does it say half cocked includes spring compression? [00:10:35] Speaker 05: It doesn't, however, what the claim says is that it's in a half-cocked position, intermediate the fully cocked and striking position. [00:10:43] Speaker 05: That means somewhere in between. [00:10:45] Speaker 05: Well, I think that there are two pieces there. [00:10:47] Speaker 05: There's no reason to call it half. [00:10:48] Speaker 05: You think that means exactly in the midpoint. [00:10:50] Speaker 05: I think that that means midpoint and spring compression. [00:10:54] Speaker 04: Why the latter? [00:10:57] Speaker 04: Intermediate. [00:10:58] Speaker 04: It says intermediate between the two. [00:11:02] Speaker 04: Right. [00:11:03] Speaker 04: Judge Hughes is asking, why does that necessarily mean you have to add in the spring pressure? [00:11:10] Speaker 03: Is it because cocked means that the spring is compressed so that it will let the gun go? [00:11:17] Speaker 03: So half cocked must mean that the spring is half cocked? [00:11:20] Speaker 05: Exactly, Your Honor. [00:11:21] Speaker 05: So the whole action of cocking the weapon is compressing the spring to store energy and allow it to discharge. [00:11:30] Speaker 05: it's not cocked at all if there's no spring pressure, if it has no capacity to fire. [00:11:35] Speaker 00: So there's no intermediate cocking at all in your device? [00:11:39] Speaker 05: Exactly, Your Honor. [00:11:41] Speaker 05: It was designed to such that in that intermediate position, it still doesn't have spring compression. [00:11:47] Speaker 05: And that's really the point of. [00:11:50] Speaker 04: But it would be if we agreed with the district court judge, it would be within the definition of half cock. [00:11:57] Speaker 05: That's true. [00:11:58] Speaker 05: If this court adopts [00:11:59] Speaker 05: If this court decides that half-cocked means the same thing as the claim language that says intermediate to fully cocked and striking position and does not require any spring pressure or the midpoint, then yes, Diamondback's firearm had a half-cocked position, and that's how we ended up here. [00:12:17] Speaker 05: Diamondback's position is that half-cocked position and intermediate to fully cocked and striking position cannot mean the same thing. [00:12:25] Speaker 05: because there's no reason for both of those phrases in the claim language if they're, I mean, they are effectively redundant. [00:12:32] Speaker 05: If half-cocked means intermediate to fully-cocked and striking position, and we already have that limitation as part of the claim, why say it twice? [00:12:41] Speaker 05: I mean, essentially what you're doing is saying that you're engaging it in an intermediate to fully-cocked and striking position, intermediate to fully-cocked and striking position. [00:12:50] Speaker 05: And that's not, that doesn't provide, it basically, [00:12:54] Speaker 05: scraps the language half-cocked out of the claim altogether, and this court has it. [00:12:59] Speaker 05: We've cited a number of cases in our brief that suggest that every term has to be given some meaning. [00:13:05] Speaker 05: Why even use the term half-cocked? [00:13:07] Speaker 03: Why isn't that just defining what half-cocked is? [00:13:10] Speaker 03: I mean, at the bottom of, I guess, line 67, column four to the top of column five, it just says, to a half-cocked position, intermediate said fully. [00:13:22] Speaker 03: Isn't that flatter phrase, intermediate? [00:13:24] Speaker 03: just further defining half-cocked? [00:13:26] Speaker 05: No, Your Honor, I believe that, well, I believe that there are two separate components. [00:13:30] Speaker 05: So I think you have the striker has to be intermediate to fully cocked in striking position. [00:13:34] Speaker 05: But if half-cocked has no further meaning, why is that term in there at all? [00:13:41] Speaker 05: Why say half-cocked at all if the only requirement for half-cocked position is language already found in the claim? [00:13:47] Speaker 00: So your point is that the fact that it says that it's cocked. [00:13:51] Speaker 00: means there have to be them. [00:13:53] Speaker 00: Exactly, Your Honor. [00:13:53] Speaker 05: Forget the half. [00:13:54] Speaker 05: Exactly. [00:13:55] Speaker 05: And the problem that we had in this case is that we had, on the one hand, we're told that it's a unique term that has some special meaning. [00:14:03] Speaker 05: But then, I mean, in CARS own, in their red brief, in one section, they tell you that it has a unique meaning. [00:14:11] Speaker 05: that's specific to this industry. [00:14:14] Speaker 05: Late on page 19, elsewhere they say it has common meaning that's just intermediate to fully cocked and striking position. [00:14:22] Speaker 05: Further on... Which is consistent with the claim language. [00:14:25] Speaker 05: I don't believe it's consistent unless you're going to disregard some of the terms in the claim language. [00:14:29] Speaker 03: But Your Honor... I don't understand why we have to disregard HACCP. [00:14:33] Speaker 03: I mean, they're using it as a shorthand for intermediate. [00:14:36] Speaker 03: between fully cocked and not. [00:14:38] Speaker 05: Then there was no reason to say intermediate and fully used. [00:14:41] Speaker 03: Yes, Coxton does think that every patent is written without any superfluous language at all, and I think we know that's not the case. [00:14:47] Speaker 05: Well, I'm suggesting that this court on a number of occasions has said you can't just disregard the terminology and certainly the back and forth, but if we read how cocked as defined by intermediate set position, we're not. [00:15:01] Speaker 03: That's what it means. [00:15:02] Speaker 03: said it one way, and they've restated it another way. [00:15:05] Speaker 05: Well, then as the court explains, they have restated the same thing again. [00:15:10] Speaker 05: And it is just surplus. [00:15:13] Speaker 05: I mean, why, if Hathcock necessarily is going to be between those two positions, there is nothing beyond the boundaries. [00:15:20] Speaker 05: Hathcock has to be somewhere in the middle. [00:15:21] Speaker 03: And so to say it. [00:15:22] Speaker 03: Well, maybe they, every time they wanted to refer to that position, they didn't want to say intermediate said Pulleycock position and said striking position. [00:15:30] Speaker 03: So that's why they defined it as Hathcock. [00:15:33] Speaker 05: Well, then they should have been clear in their definition, because there is no evidence that this has an understood meaning. [00:15:41] Speaker 05: They should have defined it if they intended it to be defined, because this court has said it has to be clear and deliberate if you're going to act as your own lexicographer. [00:15:49] Speaker 05: OK. [00:15:49] Speaker 05: Because I see that I've already. [00:15:50] Speaker 00: We'll give you three minutes back, and we'll add three minutes to your opposing counsel's argument. [00:15:56] Speaker 05: Thank you, Your Honor. [00:16:00] Speaker 02: Good morning. [00:16:02] Speaker 02: Police support, I'm Doug Spears here on behalf of Salo Inc. [00:16:06] Speaker 02: They do business as car arms and if you're a gun person that's the name that you would recognize if you've been looking at weapons and firearms in a store. [00:16:17] Speaker 00: Let me ask you in terms of the whole implications for this. [00:16:21] Speaker 00: If we disagree with you and find that the trial court did not abuse its discretion in refusing to allow you to amend the claims to add [00:16:31] Speaker 00: per dementia pleadings to add an infringement claim, then why does it matter if we agree or disagree with respect to the claim construction issue? [00:16:43] Speaker 02: Well, it probably doesn't, except for this. [00:16:46] Speaker 02: The more central part of the issues that we're raising on our cross field is that Judge Anton's final judgment that he entered isn't a declaratory relief judgment. [00:16:59] Speaker 00: Well, I understand that. [00:17:01] Speaker 00: But if in fact, I mean, are there other products that could still be charged with infringement? [00:17:08] Speaker 01: Yes, ma'am. [00:17:10] Speaker 00: So you need to maintain these claim constructions with respect to those other products? [00:17:16] Speaker 02: Certainly. [00:17:16] Speaker 02: There are two products that we tried to add to this lawsuit that it was ruled we were after the time period and therefore they were not allowed that we file separate suits on. [00:17:26] Speaker 02: the DB-9 and the DB-320. [00:17:28] Speaker 00: So there's been no declaratory judgment, no at least that the court didn't believe that it entered declaratory judgment as to those products. [00:17:37] Speaker 02: That's correct. [00:17:38] Speaker 02: That's correct. [00:17:39] Speaker 02: The court at this point certainly is of the position, and it's very clear in the record what the judge was doing. [00:17:44] Speaker 02: When he did not enter a judgment that declared the relationships of the parties, he merely entered a judgment that said, well, because we didn't let you amend, [00:17:56] Speaker 02: I can't enter a judgment that says there's infringement because, in my view, you never asked for that. [00:18:04] Speaker 03: Have you filed suit on those other products? [00:18:06] Speaker 02: Yes, sir. [00:18:06] Speaker 02: Yes, sir. [00:18:07] Speaker 02: And they've been state pending this. [00:18:09] Speaker 00: But the judgment is essentially no invalidity and no non-infringement. [00:18:15] Speaker 00: Correct. [00:18:16] Speaker 02: I don't think I've ever seen a credulatory judgment entered that way. [00:18:19] Speaker 04: And you're not going to get those other two accused guns in this case if it goes back. [00:18:24] Speaker 04: If we, for example, decided that the claim construction was wrong in whole or in part. [00:18:31] Speaker 04: For example, if we said, well, spring compression is required. [00:18:35] Speaker 04: So we'd send it back for another trial on the infringement issue, maybe not for validity. [00:18:42] Speaker 04: But you're not going to be able to bring those to your block from bringing those products into this case. [00:18:47] Speaker 02: Based on the rulings of the court, how do they stand now? [00:18:49] Speaker 04: You might want to bring another case, and then you're worried about a collateral estoppel effect from the claim construction. [00:18:55] Speaker 01: Yes, sir. [00:18:56] Speaker 00: Yes, sir. [00:18:57] Speaker 00: OK. [00:18:58] Speaker 04: Is it your position that... Are these worried about collateral estoppel on the claim? [00:19:03] Speaker 00: Yes. [00:19:03] Speaker 00: Both are. [00:19:03] Speaker 00: OK. [00:19:04] Speaker 00: So are these issues, these claim constructions, determinative? [00:19:08] Speaker 00: In other words, [00:19:09] Speaker 00: If we say that some spring compression is necessary to have any caulking, regardless whether it's half or intermediate, do you agree that there would be no infringement? [00:19:23] Speaker 02: No, ma'am, because that issue, as discovery proceeded in the testimony trial, there, and I'm drawing a blank on his name, their principal engineer in-house and the man who runs the manufacturing conceded that that float [00:19:38] Speaker 02: that Mr. Santuri talked about disappeared. [00:19:42] Speaker 02: That there was no float. [00:19:46] Speaker 02: And so there was the possibility of spring compression during various times of the manufacturing process of this product. [00:19:53] Speaker 04: So no, I don't think that that in and of itself... In the manufacturing process as opposed to the gun that's completed in the store? [00:20:00] Speaker 02: No, what's completed and in the store. [00:20:03] Speaker 02: The way it's manufactured and produced and put in the store [00:20:05] Speaker 02: There was contact. [00:20:07] Speaker 04: The product, not the manufacturing process. [00:20:09] Speaker 02: Correct. [00:20:10] Speaker 02: I misspoke. [00:20:10] Speaker 02: The product that ends up in a store would be an infringing product. [00:20:14] Speaker 00: Okay, let's talk about this cocking and releasing element versus the spring compression. [00:20:21] Speaker 00: The cocking and releasing element is only on one side of the striker, right? [00:20:26] Speaker 01: Yes ma'am. [00:20:27] Speaker 00: So how can you be cocked without having [00:20:31] Speaker 00: at least compress the springs to some extent. [00:20:34] Speaker 02: Remember that the travel of the striker is between the striking and the fully cocked position. [00:20:42] Speaker 02: As their product demonstrates, you can move that striker back in the course of its travel, which is the cocking motion, without sometimes having spring compression. [00:20:53] Speaker 02: What is behind, the reason it maintains, the reason the cocking and releasing element maintains it in the half-cocked position, [00:21:00] Speaker 02: as described in the 914 patent is because that is what prevents that striker from moving forward to the first position under any circumstance. [00:21:10] Speaker 02: For instance, if there was no spring compression at all, the thing was actually floating the way they say. [00:21:15] Speaker 02: If you point it at the ground, the cocking and releasing mechanism still keeps it in the half cocked position, still maintains it in that position, won't let it go forward. [00:21:24] Speaker 02: Gravity can't even pull it forward. [00:21:26] Speaker 02: So it doesn't require spring compression to actually do that. [00:21:30] Speaker 02: It's merely maintaining that position in the course of its travel from striking to fully topped. [00:21:37] Speaker 00: Show me what in the written description tells me that you don't need spring compression. [00:21:44] Speaker 02: Spring compression is not mentioned. [00:21:45] Speaker 02: It is not mentioned in any way, shape, or form. [00:21:48] Speaker 02: And that's why we say that it's not. [00:21:49] Speaker 00: Well, I mean, let's start with the diagrams. [00:21:51] Speaker 00: I mean, the diagrams show spring compression, right? [00:21:54] Speaker 02: Yes, ma'am. [00:21:55] Speaker 02: But the diagrams, of course, are really illustrative and don't impact the claims. [00:21:59] Speaker 00: I agree. [00:22:00] Speaker 00: But then when you describe the diagrams, you say, let's look at column three, starting at line 13. [00:22:10] Speaker 00: In a half-cocked position, the striker does not possess, in theory, enough energy to detonate the primer if it releases at that point. [00:22:17] Speaker 01: Yes, ma'am. [00:22:18] Speaker 00: Referring again to five, striker tongue 26. [00:22:21] Speaker 00: rests on the first cam lobe of Camp 22 and Camp 22 is prevented from rotating. [00:22:26] Speaker 00: So are you saying that the releases at that point has nothing to do with the spring compression? [00:22:34] Speaker 02: If there was no spring compression at that point, it would not have enough energy to detonate the primer. [00:22:41] Speaker 02: That does not refer to spring compression. [00:22:42] Speaker 02: That merely says that the gun is in a safe position in terms of its ability to detonate the primer if it is released. [00:22:50] Speaker 00: Well, isn't it the compressed spring that ultimately provides the energy? [00:22:54] Speaker 02: It can. [00:22:55] Speaker 02: Also, it could be gravity, as I gave my example. [00:22:59] Speaker 02: If there's no energy being imparted to it, then it meets that definition. [00:23:08] Speaker 04: So it may or may not have spring pressure? [00:23:11] Speaker 02: May or may not. [00:23:13] Speaker 02: Doesn't have to. [00:23:14] Speaker 02: It's merely intermediate, the fully copped, [00:23:18] Speaker 02: in the striking position. [00:23:19] Speaker 03: Do you agree that cocked have to have some spring compression? [00:23:23] Speaker 02: No, sure. [00:23:23] Speaker 02: I think a cock refers to the full range of travel of the striker, and therefore I think it's possible to have that striker move back, but not yet be under spring compression. [00:23:36] Speaker 04: Does cock mean ready to fire? [00:23:39] Speaker 04: Sir? [00:23:39] Speaker 04: Doesn't cock mean ready to fire? [00:23:42] Speaker 04: Fully cocked, yes sir. [00:23:44] Speaker 04: So it's fully cocked, and it's ready to fire, and you pull the trigger. [00:23:47] Speaker 02: Yes, sir. [00:23:48] Speaker 04: How is it going to detonate unless the spring is what propels the spring compression? [00:23:53] Speaker 02: Absolutely agree with you. [00:23:54] Speaker 02: If fully cocked, it has to be under spring compression. [00:23:56] Speaker 02: Absolutely. [00:23:57] Speaker 04: So there's a difference between half cocked, cocked, and fully cocked. [00:24:00] Speaker 02: Yes, sir. [00:24:01] Speaker 04: Where does the patent teach me that? [00:24:03] Speaker 02: It teaches you that by defining what half cocked is in this particular pattern. [00:24:08] Speaker 04: But without telling me what cocked or fully cocked is. [00:24:11] Speaker 02: Correct. [00:24:12] Speaker 02: Fully cocked, nobody does. [00:24:14] Speaker 04: It's a patent that only deals with half cockedness? [00:24:17] Speaker 02: It is a patent that deals with half cockedness. [00:24:19] Speaker 06: I wasn't saying. [00:24:24] Speaker 02: And I laughed, Judge, because I made that comment to the trial court in the Markman hearing that everybody has used the term half cock at some point or other. [00:24:33] Speaker 02: But this patent deals with a particular means of cocking and firing [00:24:41] Speaker 02: a firearm. [00:24:44] Speaker 02: And it has as part of that a particular position, which is important in this design, where the striker is maintained at a position that is somewhere in the intermediate portion of the travel of that striker, but is not yet able to fire. [00:25:03] Speaker 02: And it teaches you that. [00:25:06] Speaker 04: It may be retained in that position [00:25:09] Speaker 04: with cooperation of a spring, and it may not in your view. [00:25:13] Speaker 02: Correct. [00:25:13] Speaker 02: It may not. [00:25:14] Speaker 00: So you say that if you put it down, gravity won't, the cocking and releasing element, what if you put it this way, what happens? [00:25:22] Speaker 02: The back of the weapon, there's an open chamber. [00:25:26] Speaker 02: Now at that point, maybe it slides back, maybe it hits a spring, maybe it hits the back, but it cannot advance to the first position. [00:25:32] Speaker 02: It's maintained in that half cock by the cocking and releasing mechanism. [00:25:39] Speaker 04: The 22, the cam, and the rest? [00:25:43] Speaker 02: I believe so. [00:25:44] Speaker 02: The cam, the first cam blow of the 22, yes. [00:25:49] Speaker 02: That's what it gave you. [00:25:49] Speaker 04: And there's a spring associated with that cam, right? [00:25:51] Speaker 04: But that's spring 38. [00:25:55] Speaker 02: Correct. [00:25:56] Speaker 02: Correct. [00:25:59] Speaker 02: You know, this is what made the discussion regarding the Glock weapon so interesting in the trial. [00:26:07] Speaker 02: is the diametrical opposing difference between those two designs. [00:26:13] Speaker 02: Mr. Glock's weapon, his trigger mechanism, first of all, it's not a cam, it's a combination of two levers. [00:26:23] Speaker 02: His spring that he has, he has a spring in there too, but his assist, the trigger pull, makes it a very light trigger pull, can make it a hair trigger pull if you want it to. [00:26:37] Speaker 02: Carr's weapon is exactly the opposite. [00:26:40] Speaker 02: That spring that's referred to that we've been talking about, it's pushing against the trigger pull. [00:26:47] Speaker 02: It's pushing towards the actual trigger. [00:26:50] Speaker 02: It's resisting the pull, making it a true double action weapon as opposed to a single action firearm. [00:26:59] Speaker 02: What has puzzled me about this case is the manner in which the district court [00:27:06] Speaker 02: treated the entry of the final judgment. [00:27:10] Speaker 02: Clearly, the rules of civil procedure require that a judgment entered by the court grant all the relief to any party that the findings require, even if the party hasn't asked for that relief. [00:27:26] Speaker 00: Well, they have to ask for something. [00:27:27] Speaker 00: I mean, that sort of focuses on what your prayer for relief is. [00:27:33] Speaker 00: You can't just walk into court and make a prayer for relief. [00:27:37] Speaker 00: You have to have claims, affirmative claims. [00:27:40] Speaker 00: And that's the problem here, isn't it? [00:27:41] Speaker 00: That you had a prayer for relief, but you never asserted affirmative claims. [00:27:46] Speaker 02: Well, that's certainly the way the trial court ruled. [00:27:48] Speaker 02: And we argued that that was not an appropriate ruling. [00:27:52] Speaker 02: And whether you judge it de novo or whether you judge it as abuse of discretion, I think the key problem is that the court didn't [00:28:00] Speaker 02: appreciate, or that's not a correct term, didn't take into consideration appropriately what the express purpose of the Declaratory Relief Act is. [00:28:13] Speaker 02: It is to declare the juror relations between the parties, to resolve the dispute, to give clarity to what their positions are. [00:28:22] Speaker 02: The judgment in here didn't do any of that. [00:28:24] Speaker 04: Why didn't that happen? [00:28:25] Speaker 04: I mean, the declaratory judgment plaintiff here went in and said, I'd like two declarations. [00:28:31] Speaker 04: I'd like a declaration that my product's not infringing on Clarke's patent. [00:28:36] Speaker 04: And I'd also like a declaration that Clarke's patent is invalid on a number of grounds. [00:28:41] Speaker 02: Right? [00:28:41] Speaker 02: Yes, sir. [00:28:42] Speaker 04: And the district court judge says, I'm denying your motion. [00:28:50] Speaker 02: Judge, I think at that point, he's really treating it as to whether or not he's going to take jurisdiction in the first place. [00:28:56] Speaker 02: Because he's not declaring the rights of the parties [00:29:01] Speaker 04: But what he's doing is he's dealing with the case or controversy that's in front of him, which in his view is, at this stage, a one-sided case or controversy in terms of who's promoting legal theories. [00:29:18] Speaker 02: And that's an interesting question, because how do you have a one-sided case or controversy? [00:29:23] Speaker 00: Well, there's lots of instances where there's a declaratory judgment that's requested and that [00:29:30] Speaker 00: the declaration in and of itself is what the case is all about. [00:29:34] Speaker 00: And you could choose to not bother to bring an infringement claim, or you could bring an infringement claim. [00:29:43] Speaker 00: But you didn't choose to bring an infringement claim. [00:29:47] Speaker 02: And again, respectfully, we think we did, at least in terms of a colorable claim by including the prayer for relief that we did. [00:29:56] Speaker 03: How does the prayer for relief [00:29:59] Speaker 03: state facts upon which a claim can be granted. [00:30:03] Speaker 02: Judge, I'll concede that it did not. [00:30:05] Speaker 02: However, looking at form over substance is a mystery to me. [00:30:10] Speaker 03: That's a problem here. [00:30:13] Speaker 03: You can, as my colleague said, you can just oppose a declaratory judgment action or you can bring a counterclaim, but you can't just oppose and then [00:30:24] Speaker 03: implicitly say the counterclaim was raised. [00:30:26] Speaker 03: Don't you have to bring it under the rules of procedure? [00:30:29] Speaker 02: And Judge, we think we did. [00:30:31] Speaker 03: Because all of- So you just said that there were no facts pled that would state a claim. [00:30:37] Speaker 02: Because they had all been pled in infinite detail by the plaintiff. [00:30:41] Speaker 02: There were no additional facts to plead. [00:30:42] Speaker 03: Why didn't you at least incorporate them and say- I mean- Hindsot 2020. [00:30:47] Speaker 02: I agree. [00:30:48] Speaker 03: Let's call Rules of Civil Procedure 2020. [00:30:52] Speaker 03: I mean, it seems a little problematic to lead the district court guessing as to whether you're making a claim for infringement or not when your answer doesn't include one. [00:31:02] Speaker 02: And if there had been a motion to strike or a motion to dismiss. [00:31:04] Speaker 03: What was there to strike? [00:31:05] Speaker 03: I mean, they didn't know you were putting forth a counterclaim. [00:31:09] Speaker 02: Yes, they did. [00:31:09] Speaker 02: Yes, sir, they did. [00:31:11] Speaker 03: But you just conceded that you didn't plead any facts to support one. [00:31:15] Speaker 02: I conceded that, according to the pleading rules, perhaps the pleading was defective. [00:31:20] Speaker 02: But they did clearly know that we were putting forth a counterclaim because they questioned Mr. Moon about it, about his damages in his deposition. [00:31:27] Speaker 02: They very clearly knew there was a counterclaim. [00:31:29] Speaker 02: They chose to wait, not do anything about it, and then try to beat it at the end, and they succeeded. [00:31:36] Speaker 02: They played the game, and they rolled the dice, and they won. [00:31:39] Speaker 02: But there is no surprise here. [00:31:41] Speaker 02: That is absolutely refuted by the record. [00:31:44] Speaker 02: I see I'm within my rebuttal time, so I'll stop there. [00:31:48] Speaker 02: Thank you. [00:31:49] Speaker 00: We'll give you your time back. [00:31:51] Speaker 00: Restore your full three minutes. [00:31:57] Speaker 00: Thank you, Your Honor. [00:31:58] Speaker 00: Let me ask you the practical question. [00:32:01] Speaker 00: So assuming we reverse on claim construction, there's still no new trial as to these products if we affirm as it relates to the cross appeal, correct? [00:32:14] Speaker 05: I believe that's correct, Your Honor. [00:32:16] Speaker 05: However, as [00:32:18] Speaker 05: Mr. Spears mentioned there are two other cases that have been filed against a related entity and against the president of the company to bring in additional firearms. [00:32:28] Speaker 05: Long ago when they moved to amend, we indicated to the court in the pleadings, we don't really care about the additional firearms because the mechanisms were relatively, I mean, they're almost the same. [00:32:39] Speaker 05: However, the real issue that we raised and that was raised and I think understood by the court was that [00:32:46] Speaker 05: at the time that there was a motion to amend, there were only six weeks until we had expert reports and not a single bit of discovery had been done on damages, on market conditions. [00:32:56] Speaker 00: But I guess my ultimate question is that this case would be over. [00:33:01] Speaker 00: The impact of our reversal on acclaimed construction is something that would have to be addressed in the other case. [00:33:06] Speaker 05: I believe so, Your Honor, but I don't... I think if the court adopts... Well, if the court [00:33:16] Speaker 05: affirms the district court's decision, then I think that they will have two other actions that they will move forward, may be able to move forward on, depending on how preclusion impacts it. [00:33:28] Speaker 05: But I think that the, I'm not sure how the facts play out in those, because there is a little bit of difference between the DB9 that he mentioned and the DB380. [00:33:37] Speaker 04: So it made sense. [00:33:38] Speaker 04: You're concerned that you'd be saddled with a claim construction with which you disagree. [00:33:42] Speaker 05: Yes, Your Honor, and we would have to fight a second round of litigation with a claim construction. [00:33:47] Speaker 04: You think you'd be stopped on the claim construction, which is why you want to get it upset. [00:33:52] Speaker 04: Yes, Your Honor. [00:33:53] Speaker 04: Not because you don't need it in this case. [00:33:56] Speaker 04: If we agree that your adversary didn't properly get his infringement claim in the case, then these products pass infringements over and the patents expire. [00:34:08] Speaker 04: Correct your understanding. [00:34:09] Speaker 05: If there's no claim for damages on these products and the court affirms the claim of obstruction, yes, then these products are effectively done and we have to, depending on how preclusion plays out, we have to fight the battle with the other two [00:34:24] Speaker 04: litigations that they filed with the other two firearms that... But on the claim construction, if it's changed, you want another declaratory judgment trial. [00:34:35] Speaker 05: Yes, Your Honor. [00:34:35] Speaker 04: Because you'd like to be able to prove non-imprisonment. [00:34:38] Speaker 05: Yes, Your Honor. [00:34:39] Speaker 00: But you wouldn't have a case of controversy as to these products anymore, would you? [00:34:42] Speaker 05: Well, if the claim construction were reversed, then I believe that we still... Well, if the claim construction's reversed, [00:34:48] Speaker 05: But if the damages claim is affirmed, then no, I don't believe we would have a case of controversy with respect to these products, but there would be with the other two sets of products. [00:34:59] Speaker 04: So the controversy in the district court as a result of this appeal is going to be mooted? [00:35:05] Speaker 05: If the court affirms the denial of the motion to amend, then yes. [00:35:11] Speaker 04: That's what I mean. [00:35:11] Speaker 04: Either way on the claim structure. [00:35:13] Speaker 05: Right. [00:35:14] Speaker 05: It would effectively end this case [00:35:17] Speaker 05: But there are two other cases. [00:35:19] Speaker 04: So would you be entitled to a new trial, new declaratory judgment trial, in which your adversary can't participate, blocked out, if we change the claim construction? [00:35:32] Speaker 04: If we agree that partial compression is necessary? [00:35:36] Speaker 05: For these products or for the ones in the other cases? [00:35:40] Speaker 05: Either way. [00:35:42] Speaker 05: With respect to these? [00:35:44] Speaker 05: I think that we would still, I think there would still be a question as to whether these products infringe. [00:35:50] Speaker 05: I still think there would be a case of controversy if the claim constructions changed. [00:35:53] Speaker 04: Now there's no damages and then there's a question of whether there's an economic... No damages and there's no injunction. [00:36:00] Speaker 04: Right. [00:36:00] Speaker 05: So what's at stake? [00:36:03] Speaker 05: Well, there's still a question of infringement. [00:36:05] Speaker 05: Now if they still contend that those infringe even under the courts, even under the courts, [00:36:12] Speaker 04: But if they're out, if they don't have any skin in the gate. [00:36:16] Speaker 04: Right. [00:36:16] Speaker 04: There's nothing they can do. [00:36:18] Speaker 04: I mean, they say, oh my god, the products are infringed, but there's no remedy. [00:36:21] Speaker 05: That's true. [00:36:22] Speaker 04: I think if there's no- Would that moot the controversy? [00:36:24] Speaker 05: I believe it would with respect to these products, not with respect to the other ones. [00:36:29] Speaker 04: I think that's what the presiding judge is trying to get at, is what's happening here in terms of it wouldn't make sense for us to order a district court judge to have another declaratory judgment trial, one sided trial. [00:36:45] Speaker 05: If there's no relief available, then you're right, Your Honor. [00:36:50] Speaker 05: But it does have implications in the other cases. [00:36:53] Speaker 05: That would be essentially an advisory opinion in this case, wouldn't it? [00:36:56] Speaker 05: Well, I think certainly the court in the other two cases is going to take a look at how this court rules. [00:37:03] Speaker 05: It depends on how the court decides the relationship between the parties is. [00:37:11] Speaker 03: Let's say we decide that since [00:37:13] Speaker 03: the motion to amend the judgment and to add counter claims was properly denied. [00:37:19] Speaker 03: There's no case or controversy with regard to the declaratory judgment action and we just don't address the claim construction issue. [00:37:28] Speaker 03: If we just affirm based, can we do that? [00:37:30] Speaker 03: Can we affirm based on the denial of the motion to amend? [00:37:34] Speaker 05: You could, but I think that [00:37:36] Speaker 03: certainly for purposes of judicial economy we'd have no no i i don't hear the judicial economy argument i know you want to decide to claim construction in your favor so you can tell the district court so that's an advisory opinion do you think we can affirm or do we have to reach a declaratory judgment uh... appeal it seems to me that a little bit of a hard question but that if we agree that they didn't present they didn't preserve [00:38:03] Speaker 03: any damages or an injunction claim because they didn't include a counterclaim, then it doesn't really matter what we say on the claim construction for this case. [00:38:12] Speaker 03: And you may have arguments to go back on the other case. [00:38:17] Speaker 04: What happens if we write an opinion that says because we agree that your adversary is blocked out here, this case is moated and we express no view on the claim construction argument presented [00:38:30] Speaker 05: Then this case is probably over and we go to the other two cases. [00:38:33] Speaker 04: That's right. [00:38:35] Speaker 04: Then what's the estoppel effect going to be in future cases for this claim construction? [00:38:39] Speaker 05: It'll depend on the relationship that the court decides between the entities and principles of Diamondback that have been. [00:38:47] Speaker 03: So in the other two cases... So at the district court, I suspect your problem is you think the district court is going to refuse your claim construction again and rule against you. [00:38:57] Speaker 03: but you would still have a free opportunity to appeal that claim construction to us in the other case, wouldn't you? [00:39:02] Speaker 05: That's true. [00:39:03] Speaker 05: We would conceivably get a say. [00:39:05] Speaker 05: Assuming this court affirms the denial of the motion to amend, affirms the denial of injunction, affirms the denial of destruction of product, then I think that would likely resolve all the issues in this case and we would go back and have to fight over [00:39:22] Speaker 05: the relatedness between Diamondback Firearms, the party here, and the named defendant in the other two actions. [00:39:29] Speaker 05: And yes, then we would go forward. [00:39:31] Speaker 04: However, I'm not... Should we be concerned about jurisdiction, about cases and controversies and mootness? [00:39:42] Speaker 05: Well, certainly the court always is. [00:39:44] Speaker 04: We're having an open discussion here, but it just seems to me that there is a problem. [00:39:48] Speaker 04: of because of what's happened with regard to the motion to amend the pleadings. [00:39:55] Speaker 05: Well, I still believe that the Court can reach, it's a question of law, I still believe that this Court can reach a decision on claim construction and reverse it. [00:40:02] Speaker 05: Now, it may end up that if the Court finds in our favor on claim construction and affirms the denial of the motion to amend, that it goes back for further proceedings, which is to say basically that the [00:40:18] Speaker 05: Conceivably, judgments may go in our favor. [00:40:20] Speaker 05: I think it would still have to go back to the trial court to decide whether the evidence, as it was presented at trial, establishes infringement under the new claim industry. [00:40:29] Speaker 03: I'm a little confused by this, but assume we get rid of all the invalidity stuff. [00:40:34] Speaker 03: If you go back on infringement alone, the most you're going to get is a declaration that the products covered by this lawsuit don't infringe. [00:40:45] Speaker 03: Correct. [00:40:45] Speaker 03: And you can't get any. [00:40:47] Speaker 03: That's where they're in already because they can't get any damages because they didn't properly counterclaim for them. [00:40:54] Speaker 05: That's correct, Your Honor. [00:40:55] Speaker 05: Though there is a question of they still have pending motions for fees and those sorts of things. [00:41:00] Speaker 05: And of course, those motions may be impacted by how the court rules in this case. [00:41:07] Speaker ?: OK. [00:41:16] Speaker 02: The thing that I think we're not focused on, that I want us to focus on, is the right of a prevailing party in a declaratory relief action to seek further relief after the declaratory judgment. [00:41:32] Speaker 02: If I even conceded that the ruling on the motion to amend was within the court's discretion, I don't concede that, but even if I did, certainly this court's [00:41:46] Speaker 02: this court's rulings in the various cases that have been used to cut off the right to damages in this case do say that the prevailing party in a declaratory relief action can, inside the same action, seek damages for infringement after judgment having never pledged it. [00:42:05] Speaker 02: The Polymer case says that directly. [00:42:07] Speaker 00: What you can't do... That's the declaratory judgment plaintiff. [00:42:12] Speaker 00: What do you do with our case law that says [00:42:14] Speaker 00: if there's a declaratory judgment of non-infringement or of infelidity, that an infringement claim is a compulsory counterclaim. [00:42:24] Speaker 02: It's a compulsory counterclaim and cannot be brought in a separate action, but can be brought inside the same action by subsequent relief, is what Polymer says. [00:42:36] Speaker 02: Polymer said that they try to do it in a separate action. [00:42:39] Speaker 02: Can't do that. [00:42:41] Speaker 00: Right, but with respect to the same action, it's still up to the discretion of the court at what point in time you have to assert that. [00:42:48] Speaker 02: Well, certainly there was no assertion here that we didn't do it timely. [00:42:52] Speaker 02: We did it by trying to seek to have the judgment read in a fashion that allowed us to do that. [00:42:58] Speaker 02: And the court affirmatively, on the record, said what you're trying to do is run around our ruling on the amendment. [00:43:07] Speaker 02: It's not what we're trying to do. [00:43:08] Speaker 02: We're trying to enforce our rights that exist under 2202. [00:43:12] Speaker 02: 2202 allows for that subsequent relief, and we ought to be able to pursue it. [00:43:18] Speaker 02: And we were doing it immediately. [00:43:20] Speaker 02: There was no question of wrong timing. [00:43:23] Speaker 00: When did you actually assert 2202 as the grounds for relief? [00:43:28] Speaker 02: We asserted that both in our motion to amend [00:43:35] Speaker 02: the final judgment and in the motion for injunctive relief. [00:43:40] Speaker 00: In your motion to amend final judgment, but not in your motion to amend your answer? [00:43:47] Speaker 02: Not in the motion to amend the pleadings, no, ma'am. [00:43:50] Speaker 02: No, ma'am. [00:43:51] Speaker 00: Because we weren't seeking subsequent... Show me where in the record that is. [00:43:55] Speaker 02: I'm sorry, Your Honor. [00:43:56] Speaker 02: I don't have that noted in front of me. [00:43:58] Speaker 02: It only happened on notes I don't believe. [00:44:01] Speaker 02: But I could certainly direct you to it. [00:44:03] Speaker 02: and submit that. [00:44:06] Speaker 00: Okay, why don't you do that. [00:44:07] Speaker 00: Any last thoughts or time is up? [00:44:17] Speaker 00: No, ma'am.