[00:00:00] Speaker 01:
1537 Global Traffic Technologies versus Morgan, Mr. Tompros.

[00:00:05] Speaker 02:
Please record.

[00:00:07] Speaker 02:
There are many issues raised in this appeal, but I'd like to start with one that is case dispositive, and that's the construction of map of allowed approaches in both of the independent claims.

[00:00:17] Speaker 02:
The map in the accused M-Track system is a map of detection zones, which GTT's expert testified were fixed static areas on the surface of the earth.

[00:00:28] Speaker 02:
By contrast, the map of allowed approaches in the claims properly construed is a map of routes or paths to the intersection.

[00:00:36] Speaker 04:
There's an ambiguity in the word route and the word path.

[00:00:44] Speaker 04:
In one sense, it can be the physical space occupied by a highway or a well-trod path.

[00:00:55] Speaker 04:
And that is actually a static thing that can take any number of shapes, including a rectangle.

[00:01:01] Speaker 04:
And the other, or another, meaning of route or path is, I think, what you described as something dynamic.

[00:01:11] Speaker 04:
The actual course along which, at a given moment, somebody or some vehicle travels.

[00:01:19] Speaker 04:
How is it that this claim, and I think your claim construction argument,

[00:01:24] Speaker 04:
as embodied in the heading, heading four of your brief, says it has to be something dynamic, something time-dependent, maybe even vehicle-dependent, and not a static shape like a long, long rectangle.

[00:01:39] Speaker 02:
That's right, Your Honor, and that is what we think is conveyed by the term route or path and is the correct construction of approach.

[00:01:46] Speaker 02:
I would use the word conveys directionality, or the idea of conveying directionality, which I think is the same idea as the dynamic

[00:01:54] Speaker 02:
version that you're describing.

[00:01:56] Speaker 04:
I'm not quite sure if it is the same because in claim 16 in the preamble the term vehicle path is actually referring to the course along which a vehicle is moving and then you do certain things in the body of the claim to do something with that particular vehicle but the fact is what's stored

[00:02:24] Speaker 04:
in the system is a fixed shape non-static two-dimensional area.

[00:02:34] Speaker 02:
Well, I agree that it's stored, I agree that it's two-dimensional, I agree that it's non-static.

[00:02:39] Speaker 02:
Fixed shape... It can be any number of different shapes.

[00:02:43] Speaker 04:
This doesn't say what shape it has to be.

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It can be a rectangle, it can be... That's absolutely true, Your Honor.

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It doesn't have to be any specific shape, but it must track directionality.

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So if you look for... And shape is... The problem that I'm having with the word shape is that shape conveys this idea of a two-dimensional space.

[00:02:58] Speaker 02:
If you look at figure four of the patent, the thing that is labeled

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as the approach path, figure four, is element 440.

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It is the arrow and the line that goes away from the intersection to the intersection.

[00:03:13] Speaker 04:
Right, and the approach corridor is 480.

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And a corridor is, I think, what you're describing, Your Honor, as something that could embody the same space or could overlap with a path, but is different from the directional movement of the path

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shown in 440.

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And the patent makes this distinction pretty clear.

[00:03:35] Speaker 02:
First off, I think that the concept of approach and approach path, those are two terms that the patent is using synonymously.

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We know that from, among other things, claim 18, where the claim describes a position of an allowed approach, and then in a subsequent limitation describes the allowed approach path.

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So the allowed approach path, the only antecedent for that

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and allowed approach.

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It's using approach and approach path synonymously.

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We also know that the specification... Wait, wait, wait.

[00:04:08] Speaker 00:
Let's go back to that.

[00:04:09] Speaker 00:
Sure.

[00:04:09] Speaker 00:
You're saying they use them synonymously.

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And allowed approach means any approach that might be allowed to the intersection, right?

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Correct.

[00:04:19] Speaker 00:
So you've got this body of possible approaches.

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And then when you talk about the vehicle's path, a particular vehicle, whether or not they end up on a particular approach is a different analysis.

[00:04:34] Speaker 02:
Well, Your Honor, I'm just making the point that the patent uses the term approach and approach path synonymously.

[00:04:41] Speaker 02:
In both instances, talking about directionality and movement over time.

[00:04:45] Speaker 01:
Is that basically the same thing as a map of roads?

[00:04:51] Speaker 02:
No, it is not.

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And the reason is that it must convey directionality.

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A map of roads could just map onto a static location, the space of the road.

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If the map were a map of roads with an arrow pointing the right direction to the intersection, that could constitute an approach because there's nothing that prevents

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the route of a car from traveling along the route of a road.

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But it must be a vector.

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It must convey a direction of movement.

[00:05:17] Speaker 00:
Where did you make this argument below?

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Because I see the reference to paths, no doubt.

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Correct.

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We call it a roadway path.

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But I don't see in either your Markman brief, to the extent we've been able to find any references to the Markman hearing itself in there, in your J-Mall.

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I don't see anywhere any reference to vehicle directions.

[00:05:41] Speaker 02:
The answer is that it's in the term roots and paths that we proposed.

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Where did you argue that?

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Well, it was implicit in the term of roots and paths.

[00:05:51] Speaker 00:
But you never argued that before the lower court.

[00:05:53] Speaker 02:
Well, Your Honor, I think that the construction that we proposed to the lower court substituted a root or path for approach, and by doing so necessarily conveyed this idea of directionality.

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And, Your Honor, there was significant evidence at trial describing the difference in the operation of

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the M-Track system versus the claims on exactly this ground.

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So for example, during Mr. Cross's testimony, there was a video play that illustrated precisely the difference between the M-Track system's map of zones and the concept of approaches.

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The video showed a firehouse.

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And the map in the M-Track system, in the acute system, just put a rectangular box around the firehouse, the zone, the static fixed area.

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When the firetruck wanted to preempt traffic from the firehouse, you would press a button in the firetruck and it would turn on its signal.

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At that point, the MTRAC system would automatically, because even though the firetruck wasn't moving at all, even though it was sitting in the firehouse, because it was in the zone, it would automatically change all of the lights in all of the different areas out of the firehouse to go green away from the firehouse.

[00:07:06] Speaker 02:
That's one example of the idea of a zone being used differently.

[00:07:10] Speaker 04:
But it's only one example.

[00:07:12] Speaker 04:
I guess one way in which I'm having trouble is that there are at least three possibilities.

[00:07:20] Speaker 04:
There's the kind of zone you describe.

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And anywhere within a radius of whatever, if a vehicle is in there, all the lights do something.

[00:07:31] Speaker 04:
Another is the rectangle.

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rectangle around the road and that is the approach, but the vehicle data can include directional information.

[00:07:45] Speaker 04:
And what I'm not getting is where you ever said or why one would read approach.

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to embody directionality when the directionality can come from the vehicle data?

[00:07:57] Speaker 02:
The directionality can come from some other source, and that would be a different invention, right?

[00:08:01] Speaker 02:
That would be a different way to solve the same problem.

[00:08:04] Speaker 02:
The reason that we know approach in the patent conveys directionality is that's how the word is used in the specification and in the claims.

[00:08:11] Speaker 00:
So for example... I'm looking at your claim construction brief here, and what you said was that

[00:08:18] Speaker 00:
I mean, you simply said a map of allowed approaches means a pre-programmed map of roadway paths to the intersection.

[00:08:25] Speaker 04:
Correct.

[00:08:26] Speaker 00:
To the intersection.

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And then you cite, actually, to the specification that says intersection module tracks the path of a vehicle

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requesting preemption to determine whether it is within any of the allowed approaches.

[00:08:39] Speaker 00:
Absolutely right.

[00:08:39] Speaker 00:
So you might be arguing that ultimately the way the system works is that you have to know if the vehicle is going to be in an allowed approach, but a map of allowed approaches doesn't have that directional or non-static component to it.

[00:08:54] Speaker 02:
It does, Your Honor, and the reason... And you didn't argue that it did.

[00:08:58] Speaker 02:
I think we did by putting the word roots or paths in there, but... So you're saying that

[00:09:03] Speaker 00:
that you don't make the argument.

[00:09:04] Speaker 00:
You don't make it in your claim construction brief.

[00:09:06] Speaker 00:
You don't make it at the Markman hearing.

[00:09:08] Speaker 00:
You don't make it in your JMAW.

[00:09:10] Speaker 00:
But we're just supposed to assume that the court could figure it out.

[00:09:14] Speaker 02:
No, Your Honor.

[00:09:16] Speaker 02:
The court did figure it out because it understood our construction.

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It repeated our construction, which included paths or routes.

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It understood exactly what we were asking for.

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And that's exactly the construction we're asking for here today.

[00:09:27] Speaker 02:
And this was argued in the Markman brief as to construe approaches to mean routes.

[00:09:33] Speaker 00:
The reason that we know it conveyed that directionality... It doesn't say routes anywhere in the Markman brief, it says paths.

[00:09:37] Speaker 02:
You're right, Your Honor, but it does say routes in the joint claim construction statement, and routes and paths are, we would view them synonymously as conveying this idea of directionality.

[00:09:45] Speaker 02:
And the district court made very clear that the court understood our construction to be the one that we proposed as routes.

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It says, quote, at 810, M-TRAC urges a proposed construction of a pre-programmed map of routes to the intersection where the traffic signal that is to be preempted

[00:10:01] Speaker 02:
is located.

[00:10:02] Speaker 02:
So the district court understood it.

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We're urging the same construction.

[00:10:05] Speaker 02:
And if I just may briefly say that the term approach conveys this directionality that, Your Honor, that Toronto was describing a moment ago.

[00:10:13] Speaker 02:
In the field of invention section, the patent says the field is a preemption system that receives data from a global positioning system to track the approach of a vehicle.

[00:10:26] Speaker 02:
So it's using approach, the noun,

[00:10:28] Speaker 02:
with the verb track.

[00:10:29] Speaker 02:
You can't track a static area, but you can track the concept of an approach that requires movement.

[00:10:34] Speaker 02:
The same thing happens in column 8, lines 13 to 15, describing how you create the map of a lot of approaches.

[00:10:40] Speaker 02:
It's when the desired approach is completed.

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You can't have a static area be completed.

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It requires directionality of movement.

[00:10:49] Speaker 02:
If I could briefly address the other claim construction issues, the means for transmitting terms

[00:10:54] Speaker 02:
was proposed in means plus function form, the district court ordered that it have its plain meaning.

[00:10:59] Speaker 02:
That its error is a matter of law under this court's Mettler-Toledo case and under this court's Kemco-Stale case.

[00:11:08] Speaker 02:
The district court must construe a means plus function claim.

[00:11:11] Speaker 02:
It must identify the structure.

[00:11:13] Speaker 00:
They argue waiver on that point as well.

[00:11:16] Speaker 00:
I know that you cite the O2 micro.

[00:11:19] Speaker 00:
Is there, can you point us to anything in the record where you can establish that you did not waive that issue?

[00:11:24] Speaker 02:
Absolutely, Your Honor.

[00:11:25] Speaker 02:
So if you look at A14, the District Court's construction itself, it says, the District Court, describing our argument, says, quote, M-TRAC argues that these phrases are part of a means plus function claim and that the wireless link is the only structure disclosed by the specification which could perform the function of transmitting vehicle data.

[00:11:43] Speaker 02:
District Court understood it.

[00:11:45] Speaker 02:
Our Markman brief, our opening brief says the same thing at page A5178.

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Our reply brief says it again at A5750.

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We made the argument the district court understood it.

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And then also to claim 16, the method claim, we also urge the court if it were to, the Mean Plus Function issue resolves claim one clearly.

[00:12:05] Speaker 02:
And that alone requires a new trial because the damages award was based on the combination.

[00:12:10] Speaker 02:
But if the court reaches claim 16, we urge the court to look carefully at the clear evidence that STC did not have knowledge that the induced act constitutes patent infringement.

[00:12:24] Speaker 04:
What do you make of Mr. Morgan's testimony that, I think this is at 1734, where he says, I learned of the patent, and then we, and that's, I think, quite clearly him and Cross,

[00:12:40] Speaker 04:
crosses STC, we decided not to read the patent because we, et cetera, and there's three times he says we, we, we about the, let's use the phrase, willful disregard of the patent.

[00:12:55] Speaker 02:
Respectfully, Your Honor, I don't think that that language refers to knowledge of the patent at all.

[00:13:03] Speaker 02:
There is no testimony in the record that GTT has pointed to or that we're aware of, where the patent information about the patent was actually conveyed to Mr. Krall.

[00:13:12] Speaker 02:
The line that GTT points to is, I went down and talked to Brad.

[00:13:16] Speaker 04:
The next two words are... I'm sorry, that was not the testimony I was quoting.

[00:13:21] Speaker 04:
Oh, I'm sorry, Your Honor.

[00:13:21] Speaker 04:
Okay.

[00:13:22] Speaker 04:
That's the 1729-30.

[00:13:24] Speaker 04:
Right.

[00:13:24] Speaker 04:
That's what I said was 1734 where, I can't find it, where he says we decided not to look at the patent.

[00:13:45] Speaker 04:
We chose not to read it because we were developing a product and we didn't want to, et cetera.

[00:13:52] Speaker 02:
Your Honor, I would have to go back and look more carefully at this testimony.

[00:13:54] Speaker 02:
I don't think that there's an indication that it is Mr. Cross or STC there.

[00:13:58] Speaker 04:
And I would just reiterate that he and Cross were the ones developing the product, right?

[00:14:02] Speaker 02:
He, Cross, and others were involved in developing the product.

[00:14:05] Speaker 02:
So I can't say that I know what his we is referring to there without going back to look at the rest.

[00:14:12] Speaker 02:
Thank you, Your Honor.

[00:14:14] Speaker 01:
We'll give you two minutes for rebuttal.

[00:14:27] Speaker ?:
Thank you.

[00:14:27] Speaker ?:
Mr. Graham?

[00:14:30] Speaker 03:
May it please the court, Chad Rahn, from Figure Beaker Daniels.

[00:14:34] Speaker 03:
Your Honor, STC wrote an instruction manual in this case that used

[00:14:40] Speaker 03:
that track the language of Claim 16.

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And many times you see the exact same words as Claim 16.

[00:14:45] Speaker 01:
And we think that instruction- Well, let's talk about the construction of Claim 16.

[00:14:49] Speaker 01:
Because they say it means paths, that a map of allowed approaches has to have paths or routes.

[00:14:55] Speaker 01:
Do you disagree with that?

[00:14:56] Speaker 03:
Absolutely, Your Honor.

[00:14:58] Speaker 03:
And the issue that they raise on page 43 of their opening brief is they say, quote, the fundamental dispute between the parties regarding this limitation is whether an approach can encompass

[00:15:09] Speaker 03:
a fixed area like a rectangle on a map.

[00:15:12] Speaker 03:
So that's what they say the fundamental dispute is.

[00:15:14] Speaker 03:
And we think the claim language answers that question definitively.

[00:15:18] Speaker 04:
Suppose what they really meant was a fixed area with directionality associated with the area.

[00:15:24] Speaker 04:
And they just forgot to mention that phrase.

[00:15:26] Speaker 03:
Sure.

[00:15:27] Speaker 03:
And we don't think directionality is required in the claim.

[00:15:30] Speaker 04:
Why is that not inherent in the term approach?

[00:15:33] Speaker 03:
Because the claim says this.

[00:15:35] Speaker 03:
The claim says providing a map

[00:15:39] Speaker 03:
of allowed approaches.

[00:15:40] Speaker 03:
So we're in the world of maps, and maps don't necessarily have directionality.

[00:15:45] Speaker 03:
But they can.

[00:15:46] Speaker 03:
They can, but they don't have to.

[00:15:48] Speaker 03:
The map is a fixed geographic representation of areas.

[00:15:53] Speaker 01:
But of routes now.

[00:15:55] Speaker 01:
The specification seems to pretty clearly say the map of allowed approaches is specific routes to the intersection.

[00:16:02] Speaker 03:
No, it doesn't actually.

[00:16:04] Speaker 03:
It uses routes twice in other contexts.

[00:16:07] Speaker 01:
Well, path or route are the same thing.

[00:16:10] Speaker 01:
I mean, if you look at column five of the patent, line 55, it says the intersection module takes the path, tracks the path of the vehicle, et cetera, et cetera.

[00:16:24] Speaker 01:
A pre-programmed map allowed approaches to the intersection is stored in map memory.

[00:16:30] Speaker 01:
Doesn't that indicate that the map is showing paths to the intersection?

[00:16:35] Speaker 03:
Right.

[00:16:36] Speaker 03:
Actually, what it is is distinguishing between, I think it was Judge O'Malley was making this distinction too at column five, as Your Honor just read at line 55.

[00:16:44] Speaker 03:
It says, it tracks the path of the vehicle requesting preemption to determine whether it is within an allowed approach.

[00:16:51] Speaker 03:
So the path of a vehicle is entirely different something than the map of allowed approaches.

[00:16:57] Speaker 03:
You track the path.

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to determine, and then the systems determines, whether it has entered within an allowed approach.

[00:17:03] Speaker 03:
And we know that because the claim says it's a map.

[00:17:06] Speaker 03:
Maps, whether it's, I'll be so bold to say, whether it's a route, a roadway, a path, or an approach, if it's on a map, it's fixed.

[00:17:15] Speaker 03:
That's what maps are.

[00:17:16] Speaker 01:
But look at column three, line 32.

[00:17:20] Speaker 01:
It says, a major drawback of radio transmitters is while they do not require a line of sight approach,

[00:17:27] Speaker 01:
their inherent lack of directionality means that they may erroneously control a signal light which is not on the vehicle's route, but which is proximate to the route.

[00:17:37] Speaker 01:
Correct?

[00:17:38] Speaker 01:
And isn't this invention designed to solve that problem?

[00:17:42] Speaker 03:
This invention is designed to do a very simple thing.

[00:17:46] Speaker 01:
No, no, but answer my question.

[00:17:48] Speaker 01:
I mean, here it's identifying a defect in the prior art.

[00:17:54] Speaker 01:
Is not this invention

[00:17:56] Speaker 03:
designed to solve that problem.

[00:17:58] Speaker 03:
I would say, yes, one of the things this invention is doing is improving upon the prior art systems.

[00:18:06] Speaker 03:
But it's doing it by this, getting GPS signals, and then the vehicles getting that data.

[00:18:14] Speaker 03:
And then it has these maps that are already stored.

[00:18:16] Speaker 03:
The claim itself calls them pre-programmed.

[00:18:20] Speaker 03:
Pre-programmed meaning they exist.

[00:18:21] Speaker 03:
They're fixed.

[00:18:22] Speaker 03:
They're stored on a memory chip.

[00:18:24] Speaker 03:
And it calls them a plurality of pre-programmed allowed positions.

[00:18:28] Speaker 03:
And we know from page 44 of their brief, they call... Positions, not paths, is what you're saying.

[00:18:33] Speaker 03:
Well, the claim tells us what map of allowed approaches is, because it says a map of allowed approaches... Doesn't require paths or routes.

[00:18:41] Speaker 03:
It requires allowed positions.

[00:18:43] Speaker 03:
But not paths or routes.

[00:18:45] Speaker 03:
Like I said, you could be a path, a route, an approach.

[00:18:49] Speaker 03:
If it's on a map, it's a fixed area, because that's what maps are.

[00:18:54] Speaker 03:
But they admit in their brief the claim language itself that... It does not have to be a path or a route.

[00:19:02] Speaker 01:
Your contention that map of allowed approaches does not have to show a path or a route to the intersection.

[00:19:08] Speaker 01:
Well, it just has to show a position... Is that correct that it does not have to show a path or a route?

[00:19:13] Speaker 03:
I'm not sure I quite understand the question, but if it's a map of allowed approaches and we think the claim explains what that is,

[00:19:23] Speaker 03:
And what I'm saying on this issue is it doesn't matter if they're trying to put the word routes into the claim, because we win anyway.

[00:19:34] Speaker 03:
They have routes to the intersection that are on a map.

[00:19:37] Speaker 03:
And we know that because at A2569, Mr. Cross admits that their system, if we turn to that, has a map of approach zones stored

[00:19:53] Speaker 03:
on their memory.

[00:19:54] Speaker 03:
This is a question of Mr. Cross at trial.

[00:19:59] Speaker 03:
And the question was, we're quoting a document that says, the software maintains a database of this information and graphically displays the streets and approach zones for each intersection in an integrated map format.

[00:20:11] Speaker 03:
And he says, yes.

[00:20:12] Speaker 01:
I thought both your expert and their expert, Andrews, described their system as involving a rectangular area.

[00:20:22] Speaker 01:
and which determines the proximity of the vehicle to the intersection based on whether it's within that rectangular area.

[00:20:31] Speaker 01:
Is that correct?

[00:20:31] Speaker 01:
That is correct.

[00:20:33] Speaker 01:
OK.

[00:20:33] Speaker 01:
And that's exactly what they do.

[00:20:34] Speaker 03:
It's shown in their manual.

[00:20:36] Speaker 01:
OK, so why is that a map of allowed approaches, the rectangle?

[00:20:40] Speaker 03:
Because that's a map of an area where if the vehicle is within it, the system will recognize that and get a green light.

[00:20:49] Speaker 03:
It's a map of fixed geographic area

[00:20:52] Speaker 03:
in which if the vehicle answers into it, you're going to get a green light.

[00:20:56] Speaker 03:
That's as simple as that.

[00:20:57] Speaker 03:
That's all the claim says.

[00:20:58] Speaker 03:
It's a plurality of pre-programmed storage.

[00:21:00] Speaker 01:
Well, how do you take account of allowed approaches in that construction?

[00:21:06] Speaker 03:
That's what the claim is talking about, allowed approaches.

[00:21:09] Speaker 03:
What does that mean?

[00:21:12] Speaker 03:
It's areas.

[00:21:14] Speaker 03:
Areas?

[00:21:15] Speaker 03:
Pre-programmed allowed positions.

[00:21:17] Speaker 01:
It's just areas.

[00:21:18] Speaker 03:
Well, that's the idea of it, yes.

[00:21:21] Speaker 03:
But if you want to go to the claim language, it's pre-programmed allowed positions, which they admit in their brief at page 44 are static.

[00:21:28] Speaker 03:
They say that.

[00:21:29] Speaker 00:
They say they're static.

[00:21:30] Speaker 00:
Even assuming, though, that it's not a claim construction issue, because the allowed approaches, the vehicle has to determine if it's within the map of allowed approaches, so that we're talking about a static map.

[00:21:42] Speaker 00:
It goes to the question of infringement, I think, is where Judge Stike is going now.

[00:21:47] Speaker 00:
Because his question is, how does a rectangle

[00:21:52] Speaker 00:
infringe on an allowed approach if the rectangle doesn't necessarily account for the existence of an allowed approach.

[00:21:59] Speaker 03:
Well, the rectangle, that's how they create their allowed approaches.

[00:22:03] Speaker 03:
There's clear testimony about that from our expert.

[00:22:06] Speaker 03:
I think it's 1482 to 85, or somewhere in that framework.

[00:22:11] Speaker 03:
He explains they create these allowed approaches by two points, latitude and longitude point with a width, and then they draw the

[00:22:22] Speaker 03:
the approach or the rectangle that they have.

[00:22:25] Speaker 03:
I mean, that wasn't an issue at all.

[00:22:27] Speaker 04:
And those two points are on a road in the creation of their system?

[00:22:31] Speaker 03:
In the creation of their system, it actually is.

[00:22:32] Speaker 03:
That's 2569.

[00:22:34] Speaker 03:
Mr. Cross is saying, he's saying, end quote, and is that a depiction of the different zones that are created on a map by the M-Track GPS system?

[00:22:44] Speaker 03:
I assume they're representative.

[00:22:45] Speaker 04:
Yes.

[00:22:46] Speaker 01:
There's a zone on the map.

[00:22:48] Speaker 01:
But why is that a map of a loud

[00:22:51] Speaker 03:
Because those are areas, they're positions.

[00:22:56] Speaker 01:
An approach is an area?

[00:22:58] Speaker 03:
It can be an area, but if we want to use the claim language, which is fine with us, it's a plurality, two points of positions proximate to the intersection.

[00:23:08] Speaker 03:
If you enter in one of those, the system will detect you and you'll get a green light.

[00:23:13] Speaker 03:
So we think this claim construction issue was, as Judge O'Malley explained, not raised below.

[00:23:18] Speaker 03:
They don't talk about fixed

[00:23:20] Speaker 03:
position or anything.

[00:23:22] Speaker 03:
They didn't talk about paths, right?

[00:23:25] Speaker 03:
The word paths, and then they switched, and now this is actually their fourth construction of this term that they're trying.

[00:23:32] Speaker 03:
So if I could, Your Honor, we think this issue is not properly raised, but the claim language itself clearly addresses what a map of a lot of approaches, and it doesn't require movement.

[00:23:44] Speaker 03:
We don't know what that means, but maps don't move.

[00:23:46] Speaker 03:
It's just a map of a lot of approaches, and the claim defines what it actually is.

[00:23:51] Speaker 03:
So if I could, I'd switch to knowledge.

[00:23:53] Speaker 03:
And I just want to make sure the court is aware of an inducement.

[00:23:58] Speaker 03:
We have Mr. Morgan at 1779 to 80 admitting he knew of the patent in 2004, and then at 1608 of the appendix.

[00:24:08] Speaker 03:
Mr. Morgan has asked this question.

[00:24:11] Speaker 03:
Quote, you knew there was a patent that related to GPS technology and traffic preemption.

[00:24:15] Speaker 03:
Answer, right.

[00:24:16] Speaker 03:
Question, and did you try to review that patent before launching the second generation M-Track product?

[00:24:20] Speaker 03:
Answer, oh no, no.

[00:24:22] Speaker 03:
Brad Cross and I both talked about that.

[00:24:25] Speaker 00:
Well, even if we agree that there's substantial evidence to support the conclusion that the jury reached as it relates to indirect infringement, don't we have to send it back

[00:24:36] Speaker 00:
at least for a new trial as to Mr. Morgan in light of World Tech, since we can't tell from the jury's determination whether it was based on direct infringement or indirect infringement?

[00:24:45] Speaker 03:
That issue hasn't been appealed or raised or there was no objection to that issue below, so we don't think that's an issue.

[00:24:51] Speaker 00:
Well, there was no objection below.

[00:24:53] Speaker 00:
I agree with that.

[00:24:54] Speaker 00:
But it is raised on appeal, isn't it?

[00:24:56] Speaker 03:
There's no argument on appeal at all about the jury verdict in any confusion about whether it was direct infringement or indirect infringement.

[00:25:04] Speaker 00:
Well, they specifically rely on WorldTech to say and say that there should have been an instruction as it relates to piercing the corporate veil.

[00:25:12] Speaker 03:
No, that's not their argument.

[00:25:15] Speaker 03:
Their argument was that you have to pierce the corporate veil and cite WorldTech, but they don't say, wait a minute, there's a problem with the jury verdict.

[00:25:22] Speaker 03:
They just got the law of WorldTech wrong.

[00:25:25] Speaker 03:
WorldTech says,

[00:25:26] Speaker 03:
If there's inducement, an individual can be liable.

[00:25:30] Speaker 03:
So we think that issue that your honor is raising hasn't been raised by them at all.

[00:25:36] Speaker 03:
But World Tech clearly says for inducement, an individual can clearly be liable.

[00:25:41] Speaker 03:
And then I just want to make clear, the manual they wrote was written by STC.

[00:25:47] Speaker 03:
It has many of the exact words of our claim.

[00:25:50] Speaker 03:
So that gives a very strong evidence to the jury that sees that manual, too, to say, wait a minute.

[00:25:57] Speaker 03:
You knew of this patent.

[00:25:58] Speaker 03:
You wrote a manual that has the words of the claim in it.

[00:26:01] Speaker 03:
Yeah, I think that I'm going to infer that you would have known this was going to be infringement.

[00:26:06] Speaker 03:
STC also wrote the source code that required them to perform the method in an infringing manner.

[00:26:12] Speaker 01:
But what about COML?

[00:26:14] Speaker 01:
Assume that the Supreme Court

[00:26:15] Speaker 01:
were to affirm Comeil and say that you had to have knowledge that this was an infringement.

[00:26:21] Speaker 01:
What is the evidence of that?

[00:26:23] Speaker 03:
Absolutely.

[00:26:23] Speaker 03:
If somebody says, it's OK if you have a good faith belief of non-infringement that that's going to be a potential issue for a defense, not a full defense.

[00:26:34] Speaker 03:
But as Comeil explains and as a recent Smith and Neff case explained, that's one fact that the jury is supposed to consider.

[00:26:41] Speaker 03:
It's quote, relevant evidence.

[00:26:43] Speaker 03:
the jury heard it and rejected it.

[00:26:45] Speaker 03:
And as in the Conmark case, the jury doesn't have to believe any of their exculpatory evidence.

[00:26:50] Speaker 03:
That's the function of our system of juries.

[00:26:52] Speaker 03:
But here, there was much more than that.

[00:26:55] Speaker 03:
They can look at Mr. Cross on the witness stand and say, you know what?

[00:26:59] Speaker 03:
I don't believe you.

[00:27:00] Speaker 03:
I see the manual you wrote, Mr. Cross.

[00:27:03] Speaker 03:
This is something that I'm going to infer knowledge.

[00:27:05] Speaker 03:
And you telling me that you had a good faith belief?

[00:27:07] Speaker 01:
Well, why does writing the manual in similar language show that they knew that there was an infringement?

[00:27:12] Speaker 03:
because they're using the exact words of the patent that teach how to infringe to customers.

[00:27:17] Speaker 03:
They're writing source code that require customers to infringe, and it wasn't like this good faith belief argument.

[00:27:24] Speaker 03:
It wasn't like he sat down and told the jury, here's the patent claims, and I can tell you which ones I looked at, and let me do an analysis for you.

[00:27:32] Speaker 03:
He just said, well, ours is vehicle-centric, there's is intersection-centric, and that was it.

[00:27:37] Speaker 03:
That's not a good faith belief, especially in light of all these facts.

[00:27:41] Speaker 03:
And it doesn't matter for claim 16, because that's not an issue.

[00:27:44] Speaker 03:
That whole thing they're trying to do about difference of product doesn't matter for claim 16.

[00:27:48] Speaker 03:
So we think that good faith belief is an issue the jury gets to consider.

[00:27:51] Speaker 03:
They consider it.

[00:27:53] Speaker 03:
And in our system, the jury gets to reject it.

[00:27:55] Speaker 03:
So we don't think that's going to be an issue.

[00:27:58] Speaker 03:
On damages, I just want to make two rules.

[00:28:00] Speaker 00:
I want to ask you about willfulness before you sit down, because I don't understand how we don't have to vacate the willfulness determination.

[00:28:08] Speaker 00:
used the wrong standard when it was assessing the objective prong of wilfulness.

[00:28:14] Speaker 00:
In fact, the court went on to say that their litigation posture as it relates to validity was reasonable.

[00:28:21] Speaker 00:
Doesn't that answer the question of objective reasonableness?

[00:28:24] Speaker 03:
Actually, no, Your Honor.

[00:28:26] Speaker 03:
We don't think the court used that language.

[00:28:29] Speaker 03:
What the court said was in discussing the read factors for enhancement, the court said

[00:28:36] Speaker 01:
Yeah, yeah, but the point is that in discussing the read factors, she made findings which would seem to establish a lack of objective unreasonably.

[00:28:47] Speaker 03:
No, if I could, Your Honor, I'll go right to it.

[00:28:49] Speaker 00:
What the court said with respect to the initial assessment was that pre-litigation, they didn't know, they didn't look, so they couldn't have known anything.

[00:28:59] Speaker 00:
and then went on to say, but once the litigation was instituted, yes, they had reasonable defenses.

[00:29:07] Speaker 00:
That's the wrong inquiry, isn't it?

[00:29:09] Speaker 00:
You're not just supposed to look at pre-litigation.

[00:29:12] Speaker 03:
The actual language, if we can focus on what the court actually said, was this.

[00:29:17] Speaker 03:
Quote.

[00:29:17] Speaker 04:
What page are you reading?

[00:29:18] Speaker 03:
This is 844 of the appendix, right in the middle, under behavior as a litigant.

[00:29:27] Speaker 03:
And it is, quote,

[00:29:28] Speaker 03:
This view was not so unreasonable that it was asserted in bad faith.

[00:29:36] Speaker 03:
So the court was saying, it was unreasonable.

[00:29:40] Speaker 03:
You had unreasonable positions.

[00:29:42] Speaker 03:
But it wasn't so unreasonable that it was in bad faith, like you were trying to arrest her.

[00:29:47] Speaker 00:
Look at A45.

[00:29:48] Speaker 00:
As mentioned above, defendants had good faith in validity defense as once litigation began.

[00:29:54] Speaker 00:
Well, how do we get around that finding?

[00:29:56] Speaker 03:
Let's just be clear.

[00:29:57] Speaker 03:
They're not arguing that they had good faith in validity defenses.

[00:30:00] Speaker 03:
We can read their briefs left and right.

[00:30:03] Speaker 01:
They don't raise a single invalidity issue on this appeal and they don't have to raise it on the appeal as long as it was a reasonable defense at the trial.

[00:30:11] Speaker 03:
Well, if they're not arguing on appeal that one of the reasons there was no wilfulness is that they had good faith in validity defenses.

[00:30:18] Speaker 03:
that under this court's precedent, that's clearly waived.

[00:30:20] Speaker 01:
We didn't argue that in our... There's no case that says that you have to argue the defense on appeal in order for it to be reasonable for willful left.

[00:30:30] Speaker 03:
Well, there are cases, Your Honor, that we cite in our brief that say if you don't raise an issue on appeal, it's clearly waived.

[00:30:36] Speaker 03:
And if we were given the opportunity to brief that issue, they didn't brief it, we didn't brief it, it's not in their replying, so we don't think that you can try to rely on something the district court was talking about

[00:30:46] Speaker 03:
in the context of something other than the objective.

[00:30:50] Speaker 04:
Am I right that in the one page willfulness section of their brief they don't cite that passage of the district court?

[00:31:01] Speaker 03:
You are correct, Judge.

[00:31:02] Speaker 04:
They cite only A44 and not A45 and they don't say

[00:31:07] Speaker 04:
Here's a hint about the invalidity defenses we had, and we're not going to argue them here, but we can explain why they were reasonable.

[00:31:14] Speaker 03:
Absolutely, that's correct.

[00:31:16] Speaker 03:
And then as to damages, two points.

[00:31:19] Speaker 03:
They say this in their reply that Mr. Gorowski didn't discuss price elasticity at trial.

[00:31:26] Speaker 03:
Two points on that.

[00:31:27] Speaker 03:
He did, and he wasn't required to under federal rules of evidence 705.

[00:31:31] Speaker 03:
He raised three points at trial on price elasticity.

[00:31:35] Speaker 03:
And those three points are at A,

[00:31:37] Speaker 03:
2102 through 2103, he said, this is a critical product to the public.

[00:31:43] Speaker 03:
We had already established our pricing, and this was a two-supplier market.

[00:31:47] Speaker 03:
And under rule 705 of the Federal Rules of Evidence, it specifically says, once you pass through the gate at trial, then you just get to give your opinion.

[00:31:56] Speaker 03:
It's up to them to cross-examine.

[00:31:58] Speaker 03:
In this court's case, it's applying 705 specifically to say that.

[00:32:01] Speaker 03:
And then I'll just mention,

[00:32:03] Speaker 01:
I think unless my colleagues have further questions, we're out of time.

[00:32:07] Speaker 01:
Thank you.

[00:32:08] Speaker 01:
Thank you, Mr. Jones.

[00:32:09] Speaker 02:
I appreciate it.

[00:32:15] Speaker 02:
Your Honor, just two points.

[00:32:17] Speaker 02:
Mr. Gross did correctly characterize the dispute when he said he wanted to be bold and say if it's on a map, it's a fixed area.

[00:32:23] Speaker 02:
We disagree.

[00:32:24] Speaker 02:
That's not the way the patent uses the word approach in the claim term map of allowed approaches.

[00:32:29] Speaker 02:
It talks about tracking an approach.

[00:32:31] Speaker 02:
You can't track a fixed area.

[00:32:32] Speaker 02:
It talks about completing an approach.

[00:32:34] Speaker 02:
You can't complete a fixed area.

[00:32:36] Speaker 00:
But it doesn't talk about those things in connection with the map.

[00:32:40] Speaker 00:
It talks about when you're then tracking the vehicle.

[00:32:44] Speaker 00:
So isn't your argument not a claim construction argument as it relates to map of allowed approaches, but it's an argument as it relates to infringement, which you had the opportunity to present to the jury?

[00:32:55] Speaker 02:
It is a claim construction argument because the map of allowed approaches, there's been some dispute about whether an approach can be a fixed area or not in the claim term map of allowed approaches.

[00:33:06] Speaker 02:
had the court construed it to mean a map of routes or paths, as we argued, then it would have been inappropriate to then make the argument that a fixed area could meet it, and there would be a non-infringed position, but it is a claim construction question.

[00:33:20] Speaker 02:
And if there were any doubt that there's confirmation from the patent office just in the re-exam certificate that was just issued a couple days ago, and the reasons for patentability underlying that certificate, they distinguished a prior art reference by saying,

[00:33:34] Speaker 02:
There is no map of allowed approaches to a location, as there is no defined approach to any specific point.

[00:33:40] Speaker 02:
The Patent Office rejected the argument that if it's on a map, it's a fixed area.

[00:33:45] Speaker 02:
And Your Honor, the second point, the idea that the exact words of the claim appear in the manual is indicative of the way that this case is ultimately tried to the jury.

[00:33:54] Speaker 02:
And it's indicative of why this is a claim construction issue that the district court judge needed to resolve before this went to the jury.

[00:34:02] Speaker 02:
That's exactly the argument they made.

[00:34:04] Speaker 02:
The words show up, therefore there must be infringement.

[00:34:06] Speaker 04:
Can you just clarify something?

[00:34:08] Speaker 04:
In your system, how do you create your detection zones?

[00:34:13] Speaker 02:
That's a great question, Your Honor.

[00:34:14] Speaker 02:
The answer is there's no tracking of a vehicle.

[00:34:17] Speaker 02:
A person sits down with a map in a computer way and draws areas.

[00:34:21] Speaker 02:
With roads on it?

[00:34:22] Speaker 02:
The map has roads, but the areas don't have to correspond to the roads and they often don't.

[00:34:26] Speaker 02:
They certainly don't correspond to the full road up to the intersection, the approach.

[00:34:31] Speaker 00:
But you're not drawing areas that don't have roads in them.

[00:34:35] Speaker 00:
That's exactly what your own witness testified, that that's how you pick the areas to draw.

[00:34:40] Speaker 02:
You pick areas to draw because you're interested in what those areas will do at intersections, and intersections happen at roads.

[00:34:46] Speaker 02:
But there are a lot of examples where you pick areas that are not on top of the roads.

[00:34:51] Speaker 02:
One is the firehouse box example that I described.

[00:34:54] Speaker 02:
Another is, for example, if there's an intersection, you might draw an area that's perpendicular to the intersection over here.

[00:35:01] Speaker 04:
And you would know that... I'm sorry, the fire house is not on a road?

[00:35:05] Speaker 04:
How does the fire truck get out of the fire house?

[00:35:08] Speaker 02:
The fire house is on a road, but the zone corresponds to the building and to the area around the building, not mapping onto the road itself.

[00:35:16] Speaker 02:
We agree, Your Honor, there are roads on maps, and you take where the roads are and where the intersections are into account,

[00:35:22] Speaker 02:
in drawing the fixed areas.

[00:35:24] Speaker 02:
But that is not the same as mapping approaches.

[00:35:27] Speaker 02:
And to map an approach, you have to do what is described in the patent, which is have a sequence of points and map the vectors, map the directions that's different from mapping the static area.

[00:35:37] Speaker 01:
Thank you, Ron.