[00:00:21] Speaker 01:
The next case for argument is 141544, Poxico versus Colorado Altitude Training.

[00:00:33] Speaker 01:
Mr. Thompson?

[00:00:34] Speaker 01:
Thank you, Your Honor.

[00:00:41] Speaker 03:
I should be fairly clear from the briefing.

[00:00:50] Speaker 03:
Hypoxico believes there have been a number of errors in the proceedings below.

[00:00:54] Speaker 03:
There's one theme that kind of runs through all of the errors and all of the problems that Hypoxico has, and that is the failure of the court below to believe the appropriate way to the jury findings in both of the two trials.

[00:01:13] Speaker 01:
Can I ask you, it's kind of, because we've got two kind of jury trials going on here,

[00:01:17] Speaker 01:
This is just kind of more of a process question than a substantive question.

[00:01:23] Speaker 01:
But if we conclude that there was some error in the 2009 new trial decision, but ultimately when we get to the issues that are laid out as of 2012 in that trial, we think what was done in the context of that trial was okay.

[00:01:41] Speaker 01:
Where does that leave us?

[00:01:44] Speaker 03:
Well, I would believe that if the first trial was right, there shouldn't have been a second trial, so all the second trial issues become moot, no matter how they might be resolved.

[00:01:52] Speaker 01:
And so what do we do?

[00:01:53] Speaker 01:
Send it back for yet another trial?

[00:01:55] Speaker 03:
Well, it depends on what your honors end up doing.

[00:01:59] Speaker 03:
If the court decides that the first jury verdict should be reinstated, the only thing that would need to be retried is the issue of damages.

[00:02:06] Speaker 03:
And that would be a simple accounting, I would say.

[00:02:09] Speaker 01:
Can I ask you, and this again is more of a process, but let's assume, hypothetically, that we're looking at the record here and we're looking at all the patents and we conclude at least two things with respect to correct claim constructions.

[00:02:20] Speaker 01:
One is that portable does not cover these big tents in the room, so portable really means portable.

[00:02:26] Speaker 01:
And second, that vents really means vents, so that just the, I mean, it has to be something that consciously is put in as a vent, not just air sinking out.

[00:02:36] Speaker 01:
So that seems to blow up most of the infringement case that's before us, right?

[00:02:42] Speaker 01:
And so it's not clear to me, when you look at the record and what's gone on historically,

[00:02:47] Speaker 01:
I don't know whether issues were raised and waived.

[00:02:50] Speaker 01:
I don't know if because the judge focused on controller, he never got to those other questions, at least in 2009.

[00:02:56] Speaker 01:
It's hard to put the pieces together.

[00:02:58] Speaker 01:
And that's why I appreciate what you're saying that if there wasn't that much of a problem on the record on the arguments on 2009 that are being stated.

[00:03:08] Speaker 01:
But don't we have before us all of these questions appropriately?

[00:03:12] Speaker 01:
I'm sorry, that's a long question, but I'm having some trouble deciding what's before us and what we can consider.

[00:03:19] Speaker 03:
Trying to parse the questions, of course, we would argue that the claim constructions of the first file were the correct ones, not the claim constructions of the second file.

[00:03:28] Speaker 01:
But was that an issue in the first trial?

[00:03:31] Speaker 01:
Did he decide that portable was okay or not?

[00:03:35] Speaker 01:
I mean, that didn't seem to come up.

[00:03:36] Speaker 01:
I mean, he threw the stuff out predominantly because of the controller question, right?

[00:03:40] Speaker 01:
That's correct.

[00:03:41] Speaker 01:
So he never reached those other questions.

[00:03:43] Speaker 01:
But if they had come up on appeal at that juncture, they could have argued these are the alternative.

[00:03:49] Speaker 01:
Could they not?

[00:03:50] Speaker 03:
I'm not sure because they didn't object to the claim constructions.

[00:03:53] Speaker 03:
The claim construction at the time for portable was...

[00:03:58] Speaker 03:
I think it's easily transported or moved to something fairly short, a one-sentence thing that's in the briefs.

[00:04:03] Speaker 03:
But it's not that half-page, three-quarter-page long claim construction he gave in the second trial.

[00:04:09] Speaker 03:
And there was no objection to any argument that the claim construction of the first trial was incorrect in certain way by not being preserved on the record.

[00:04:17] Speaker 04:
Let's ask it a little differently.

[00:04:19] Speaker 04:
During the 2009 trial, did they dispute infringement because they

[00:04:26] Speaker 04:
contended that their tents were not portable?

[00:04:30] Speaker 03:
To be perfectly honest, that's not entirely clear whether they were arguing lack of portability or lack of collapsibility.

[00:04:38] Speaker 03:
That was another claim term that was argued at the first trial and surrendered at the second trial.

[00:04:43] Speaker 04:
There was a JMAW motion in 2009, right?

[00:04:46] Speaker 03:
Yes.

[00:04:47] Speaker 03:
The new trial motion was in combination with JMAW and new fraud.

[00:04:52] Speaker 04:
So obviously, one of the arguments was whether

[00:04:55] Speaker 04:
their tent met the substantially maintaining certain oxygen costs.

[00:05:01] Speaker 04:
So that they argued and the district court relied on that piece to order a new trial.

[00:05:09] Speaker 04:
In that same motion, did they also argue about portability?

[00:05:14] Speaker 03:
I believe that they raised the issue a little bit, but I don't think that it was the crux of their motion in that.

[00:05:21] Speaker 03:
How about vents?

[00:05:22] Speaker 04:
was events argued in that 2009 motion?

[00:05:26] Speaker 03:
Not to the degree that was argued in the 2012 where the court had a different claim construction because the construction of vents again was a fairly short and concise construction in 2009, not a two or three page long construction.

[00:05:40] Speaker 04:
But in the end there was a dispute that they were raising in their Jamal motion in 2009 regarding whether their zippers can fairly be understood to

[00:05:52] Speaker 04:
meet your claim limitation on beds and apertures?

[00:05:55] Speaker 03:
Well, I don't believe that the zippers played a prominent role in the 2009 trial as it did at the 2012 trial.

[00:06:02] Speaker 03:
In 2009, we also had on the table the fact that there are other openings in the various structures.

[00:06:08] Speaker 03:
If it's a room structure, there are openings around light switches and underneath doors and through windows and all that.

[00:06:14] Speaker 03:
In the tents, you also have not only the zippers, which are present

[00:06:19] Speaker 03:
but also the fabric around the zippers, which is a porous material, which has openings in it, and we believe that those would qualify as apertures, and under the time construction offered by the court with the events as well.

[00:06:32] Speaker 01:
You know, I appreciate, I understand what your responses are to Judge Chen, but your responses are sort of halfway there.

[00:06:39] Speaker 01:
It's like you can't be half pregnant when you say, yeah, it was there, but they didn't focus on it.

[00:06:44] Speaker 01:
Yes, I mean, I'm not criticizing you.

[00:06:47] Speaker 01:
You're trying to be forthcoming, and I appreciate that.

[00:06:50] Speaker 01:
But for our purposes, it's not clear to me that if the issue were in play, even if it wasn't the main focus or whatever, isn't that sufficient to preserve it?

[00:06:59] Speaker 01:
And therefore, if we're looking, can we look fairly at questions involving claim construction and infringement on the vent question, on the portability question?

[00:07:08] Speaker 01:
when we're revisiting even the 2009 trial.

[00:07:12] Speaker 03:
I believe not, Your Honor, because I believe that for an error to be preserved or an argument for an error to be preserved in making Jamal or a new trial order, it had to have been raised as an objection to the jury construction or somehow raised during the trial.

[00:07:30] Speaker 03:
And it was certainly not raised during the trial with an appropriate motion later renewed

[00:07:35] Speaker 01:
Well, is that because, and this comes up in a lot of our cases, there's some fuzziness between what's a question of claim construction and what's a question of infringement.

[00:07:44] Speaker 01:
So if you've got a claim construction that's kind of ambiguous, you may decide strategically, you're not going to challenge that, but in terms of infringement, you're going to kind of argue the portability question of potential infringement.

[00:07:56] Speaker 01:
So were those arguments made at trial?

[00:07:58] Speaker 01:
Did the trial involve what's really event, this isn't really event,

[00:08:04] Speaker 01:
and this isn't really portable, was that parcel of the trial?

[00:08:08] Speaker 03:
I would say with respect to vents, definitely not.

[00:08:10] Speaker 03:
With respect to portable, only inferentially.

[00:08:13] Speaker 03:
The problem was that the defense at the first trial, the 2009 trial, the third trial counsel for CAT took the position that they didn't have to argue what was not present in the

[00:08:28] Speaker 03:
It was their basic position that hypoxicists had to prove everything and they will tell you later what parts they failed to prove.

[00:08:38] Speaker 03:
And so to state that they raised the issue I don't think is a fairly descriptive or fair way of describing what happened at that first trial.

[00:08:49] Speaker 01:
No, just trying.

[00:08:51] Speaker 04:
Oh, I was just going to ask.

[00:08:54] Speaker 04:
The appellees are bankrupt right now?

[00:08:56] Speaker 03:
Yes.

[00:08:57] Speaker 03:
Well, that is to say the corporate appellee is bankrupt.

[00:08:59] Speaker 03:
There is also the question of inducement by the individual, Mr. Larry Cut.

[00:09:04] Speaker 03:
He is not in bankruptcy at this time.

[00:09:07] Speaker 01:
Okay.

[00:09:07] Speaker 01:
So let's assume that we were to conclude hypothetically that the district court judge was correct on his conclusions with regard to inducement.

[00:09:16] Speaker 01:
What happens to your case?

[00:09:19] Speaker 03:
Well, there would still be issues that we would need to pursue.

[00:09:22] Speaker 03:
Obviously, we would stand to collect less money, in theory.

[00:09:28] Speaker 03:
But there are still questions in the bankruptcy about how much damages would be collectible.

[00:09:33] Speaker 03:
In the first instance, there would be a... Of course, it all depends on how much money is actually in the bankruptcy estate.

[00:09:39] Speaker 03:
If the answer is zero, then there's no money to be collected under any theory.

[00:09:43] Speaker 03:
But since the bankruptcy was filed in 2010, there was a substantial amount of infringement

[00:09:48] Speaker 03:
which took place between 2010 and today, until the end of May when they actually shuttered their business under Chapter 11, so that whatever sales they made, the damages that would be accrued post-petition are treated as, I understand it, not a bankruptcy act, but as administrative claims which are given priority in the bankruptcy proceeding.

[00:10:15] Speaker 03:
so that they would be given a higher priority than pre-petition claims, which are treated as pre-petition secret claims.

[00:10:22] Speaker 03:
So whatever money may be in the bankruptcy state, if there is a higher percentage of damages, a higher amount of damages awarded, hypoxic would be entitled to a greater percentage of the

[00:10:35] Speaker 03:
than the administrative claims that might be collectible after the populist issue.

[00:10:41] Speaker 01:
Let me try before your time runs out to the other kind of claim construction question, which the district court clearly did rely on, which is the controller and whether or not the air limitations are met.

[00:10:51] Speaker 01:
I mean, there's a theory, and you're right about theory.

[00:10:53] Speaker 01:
There is a theory in patent law, like, just because you add something else, you're arguing you're the controller, the claim limitations are otherwise met.

[00:11:00] Speaker 01:
You're still infringing.

[00:11:02] Speaker 01:
But the district court clearly thought another way.

[00:11:04] Speaker 01:
He thought that all of, really, the function served by the air pressure limitations was being performed by this other thing, which is the controller.

[00:11:13] Speaker 01:
And in theory, if he's right about that, then that does get you out from under infringement, right?

[00:11:19] Speaker 01:
So why was he wrong?

[00:11:20] Speaker 03:
I would disagree.

[00:11:22] Speaker 01:
I don't believe that that's... Well, I mean, maybe you have a DOE claim to whether or not this is different, but it's functions in the same, same function, same way, same result, right?

[00:11:32] Speaker 01:
But that sounds to me more like a DOE argument than an actual literal argument.

[00:11:35] Speaker 03:
That's correct, which is why, in the case of literal inference, we don't believe that the functionality really comes into play.

[00:11:40] Speaker 03:
The question is whether there is a structure there that performs these functions, not whether the

[00:11:46] Speaker 03:
operation of the device.

[00:11:48] Speaker 01:
Well, the way the claims read, it's really not just, it's the structure that's performing the function.

[00:11:53] Speaker 01:
That's all inherent in the claims, right?

[00:11:55] Speaker 01:
It's not the claim for A, B, and C. It's all related to the function, right?

[00:12:01] Speaker 03:
Yes, Your Honor, but it's also true that so long as the product is capable of performing these functions, then the machine infringes.

[00:12:12] Speaker 03:
It doesn't have to be shown to be constantly performing them.

[00:12:16] Speaker 03:
so long as it's capable of performing.

[00:12:18] Speaker 03:
And the evidence showed that under much of the time, that under most circumstances, there would not be any change in the concentration of oxygen, and that the interior atmosphere within the enclosures, whether it be a tent, a room, a chamber, however described, is controlled by only two things.

[00:12:41] Speaker 03:
One, the walls of the structure which confined the

[00:12:44] Speaker 03:
interior atmosphere and segregated from the outside and the one device which changes the concentration of anything or the composition of the atmosphere within that enclosure and that's the gas separation device.

[00:13:00] Speaker 03:
Whether the operation of the gas separation device is controlled manually by hand or by just leaving it alone,

[00:13:07] Speaker 03:
or by having some other piece of equipment change it, it's still the same function.

[00:13:11] Speaker 02:
Even with use of the computer, the changes were only plus or minus one degree with respect to the oxygen levels.

[00:13:17] Speaker 02:
Is that right?

[00:13:18] Speaker 03:
I'm sorry, I didn't follow you.

[00:13:19] Speaker 02:
Even with the use of the computer to change, alter the oxygen levels, any changes were within plus or minus one degree?

[00:13:28] Speaker 03:
One percent.

[00:13:29] Speaker 03:
One percent, right.

[00:13:29] Speaker 03:
Yes, Your Honor, I believe that to be correct.

[00:13:31] Speaker 03:
The evidence, I think, showed that.

[00:13:34] Speaker 03:
And again, CAT did not put in any affirmative evidence showing that these numbers were different.

[00:13:40] Speaker 03:
They simply said a hypoxico failed to prove it, and elected not to explain how its own machines work, instead relying on hypoxico carrying this burden of proof.

[00:13:51] Speaker 04:
There's two different categories of these products in terms of control systems, non-control systems.

[00:13:59] Speaker 04:
And so the only

[00:14:01] Speaker 04:
dispute we're having right now about this limit claim limitation is the controlled system.

[00:14:07] Speaker 04:
Is that right?

[00:14:08] Speaker 04:
Is there also a dispute between the parties on the non-controlled systems and whether the non-controlled systems... I believe non-controlled, I would leave it to my learned opponent to say what he's doing.

[00:14:22] Speaker 03:
I don't like putting words in his mouth.

[00:14:24] Speaker 03:
Get wet fingers when you do that.

[00:14:27] Speaker 03:
So I would prefer to say

[00:14:29] Speaker 03:
to capture, determine that.

[00:14:30] Speaker 03:
But I don't believe that there is any argument about that.

[00:14:33] Speaker 03:
Even the judge said that the argument about the reason he granted a new trial was basically, the first trial was because of the control systems.

[00:14:45] Speaker 03:
Even though uncontrolled systems made up over 30% of the sales of CAHPS products, he granted a new trial on those 30% as well.

[00:14:56] Speaker 01:
We're seriously into you, but we'll restore two minutes.

[00:15:00] Speaker 01:
Let's take a minute or so.

[00:15:19] Speaker 04:
Thank you.

[00:15:20] Speaker 04:
Just curious, before you begin, how bankrupt is TAT?

[00:15:24] Speaker 05:
I don't represent CAD in its bankruptcy proceedings.

[00:15:28] Speaker 05:
My understanding is that they... Well, I know for a fact that the Chapter 11 proceeding was just this past month converted to a Chapter 7 proceeding, and a trustee has been appointed by the court for the purpose of liquidating whatever assets the company has and distributing it to creditors.

[00:15:46] Speaker 05:
My understanding is that there's not very much there, but I don't have the facts.

[00:15:50] Speaker 02:
If we were to reverse in the 2009 trial, that decision, we sent it back.

[00:15:58] Speaker 02:
But what issues would be remaining to be decided?

[00:16:02] Speaker 05:
The grant of the new trial in 2009.

[00:16:06] Speaker 05:
Obviously, it's our position that the judge was well within his discretion to grant a new trial in 2009.

[00:16:14] Speaker 05:
If the court were to reverse on that, there are still

[00:16:19] Speaker 05:
remaining issues involving damages.

[00:16:23] Speaker 05:
Those are the only issues I can think of.

[00:16:26] Speaker 01:
So let's assume we thought he was wrong in terms of the jury verdict except with respect to the questions of inducement and lost profits.

[00:16:36] Speaker 01:
So there would have to be a new trial on the calculation of damages or was it in the jury verdict was that severable?

[00:16:44] Speaker 01:
The $4 million was it differentiated between

[00:16:49] Speaker 05:
No, my understanding was it was a single verdict for $4,325,000 was awarded by the jury.

[00:16:56] Speaker 05:
You said?

[00:16:58] Speaker 02:
$4.5 million.

[00:17:00] Speaker 02:
Right.

[00:17:00] Speaker 02:
And that was all lost profit?

[00:17:02] Speaker 05:
That was on the lost profits.

[00:17:04] Speaker 05:
And the judge found that there were serious errors on the lost profits, on the jury's finding of inducement, and on the jury's finding that the controlled products infringed.

[00:17:15] Speaker 05:
And that's reviewed.

[00:17:16] Speaker 05:
Under an abuse of discretion standard, the district court has a lot of discretion in granting a new trial and determining whether or not to grant a new trial.

[00:17:24] Speaker 04:
And the district court is not... That's a pretty high burden before he throws his jury verdict out, though, right?

[00:17:30] Speaker 05:
That is right.

[00:17:31] Speaker 05:
But he does not have to take all of the evidence in the light most favorable to the verdict holder.

[00:17:37] Speaker 05:
It's a very different standard from the JML standard in the Second Circuit.

[00:17:41] Speaker 05:
The district court is permitted to view all of the evidence through its own eyes.

[00:17:45] Speaker 05:
and to determine whether or not the jury reached an incorrect verdict.

[00:17:50] Speaker 05:
And if so, what happened in this case, he gave Hipposco a second chance to prove this case three years later.

[00:17:58] Speaker 05:
And it came back and presented essentially the same evidence, which resulted in a problem.

[00:18:04] Speaker 04:
Do you happen to know back in 2009 whether your side maintained, preserved, asserted,

[00:18:11] Speaker 04:
arguments regarding portability and vents?

[00:18:16] Speaker 05:
There are a number of different issues.

[00:18:19] Speaker 05:
I can recall exactly what was raised in that J-MOL brief, that there was a J-MOL motion made during trial and then renewed after trial.

[00:18:27] Speaker 05:
I know there are a number of different non-infringement positions, including additional one involving a pressure differential between the inside of the tent and the outside of the tent and the tent products.

[00:18:36] Speaker 05:
And vents, the existence of vents and apertures certainly was a contested issue at that time.

[00:18:41] Speaker 01:
And why did it take three years from the first trial to the second?

[00:18:46] Speaker 05:
I was not there at the time.

[00:18:48] Speaker 05:
From the record, I know that there was a change in counsel on Cat's side.

[00:18:55] Speaker 05:
Cat also entered into bankruptcy, made a file for bankruptcy during that period.

[00:19:01] Speaker 05:
And there were a number of different complications.

[00:19:05] Speaker 05:
I don't know the full answer to that.

[00:19:06] Speaker 01:
So Judge Chen kind of started you down this road, and you heard my dialogue with your friend, and my questions were really quite confused, but hopefully you appreciated what I was getting at, which is the extent to which, if we're not comfortable really with the basis that the judge articulated in 2009, whether it's enough to say, but if we really are fairly firm, if the same construction questions were before us,

[00:19:34] Speaker 01:
we would go a certain way in your favor on portability and on vets, whether we can carry that conclusion back to affirm the 2009.

[00:19:43] Speaker 01:
And if you think we can, then give me some basis for saying that.

[00:19:50] Speaker 05:
I guess the place to start is to say that the claim constructions at 2009 were not the same as the claim constructions that Hypoxico advocated for in 2012.

[00:19:59] Speaker 05:
For instance, on the portability question,

[00:20:03] Speaker 05:
In 2009, the portable was construed to mean easily transport or move something along those lines, and in 2012, Ipopsico was advocating for a construction of capable of being moved, which is... Okay, so on that point, did you preserve that argument?

[00:20:22] Speaker 01:
Was that in place that you're saying that, no, even the 10 stuff is too big and that these products don't infringe at least a 2-2-2 patent?

[00:20:32] Speaker 05:
Yes, the court really was an issue at that trial in 2012 under the construction of easily transported or moved.

[00:20:42] Speaker 01:
Do you believe, is that a yes answer?

[00:20:44] Speaker 05:
I just want to be accurate.

[00:20:46] Speaker 05:
Yes answer in response to?

[00:20:48] Speaker 01:
It was an issue.

[00:20:49] Speaker 01:
It was in play.

[00:20:50] Speaker 01:
It was articulated and raised and preserved by your side.

[00:20:53] Speaker 05:
That is my recollection, yes.

[00:20:56] Speaker 02:
How was it preserved?

[00:20:58] Speaker 02:
Is there an objection to instruction?

[00:21:01] Speaker 02:
Is there a general?

[00:21:03] Speaker 05:
How is the claim construction that she preserves?

[00:21:07] Speaker 05:
Yes.

[00:21:07] Speaker 05:
Well, in this case, I was referring to the fact that claim construction at the 2009 trial was different than what Hypoxco was advocating for at the 2012 trial.

[00:21:16] Speaker 02:
OK.

[00:21:17] Speaker 02:
You were pulling at it saying that the claim construction on vans and portability that were in play in 2012 were not in play in 2009.

[00:21:29] Speaker 05:
Right, there were different issues at that trial, and there was different counsel, and the claim constructions that were advocated for at the 2012 trial, those claim construction issues did not come into play in the 2009 trial.

[00:21:43] Speaker 01:
OK, but what I heard you say was that in 2009, your side was perfectly satisfied with the claim construction and limited it to something that is easily portable.

[00:21:52] Speaker 01:
So then, if you had the claim construction law, maybe it was a question of preserving it in the context of infringement.

[00:21:58] Speaker 01:
Did you then argue against the jury verdict saying, no, they couldn't have found this was portable because of claim construction?

[00:22:07] Speaker 04:
It's an infringement question that you were perhaps arguing at that stage.

[00:22:13] Speaker 04:
Not really a claim construction question.

[00:22:15] Speaker 04:
That your tents could not possibly infringe this claim because your tents are not portable.

[00:22:23] Speaker 05:
That is correct.

[00:22:24] Speaker 05:
It would be an argument on.

[00:22:26] Speaker 05:
the burden.

[00:22:27] Speaker 05:
When you say it would be, is that what happened though?

[00:22:30] Speaker 05:
That is my recollection.

[00:22:32] Speaker 01:
What about the vents?

[00:22:33] Speaker 01:
What was the history there on the vent question?

[00:22:36] Speaker 01:
Was the claim construction the same?

[00:22:37] Speaker 01:
How long did you preserve?

[00:22:39] Speaker 01:
I mean, did you argue against the claim construction or was it one that you favored that you think morphing into an infringement question?

[00:22:47] Speaker 05:
The history of the claim construction, the only other time when there was a claim construction that took place was

[00:22:53] Speaker 05:
at the same time that the previous district court judge, Judge Codel, was in charge of the case in connection with a summary judgment motion very early on in the case.

[00:23:05] Speaker 05:
But at the trial, there were additional claim disruption issues raised before the judge in the 2009 trial.

[00:23:10] Speaker 01:
Well, did you use the bent question as a basis for arguing that the jury verdict should be overturned?

[00:23:18] Speaker 01:
The vents question?

[00:23:19] Speaker 01:
Yeah.

[00:23:20] Speaker 01:
That your products, that the accused products, don't satisfy this kind of limitation?

[00:23:24] Speaker 05:
Yes.

[00:23:25] Speaker 05:
It was an issue with the, for instance, on the controlled products, that the incidental openings were not an aperture.

[00:23:32] Speaker 05:
So that was an issue.

[00:23:34] Speaker 01:
Is the vent issue also in play?

[00:23:36] Speaker 01:
That's the 652 patent or whatever the other one is?

[00:23:39] Speaker 01:
652.

[00:23:42] Speaker 01:
Does that cover all the products, or you suggest is the vent question only pertaining to the control?

[00:23:51] Speaker 05:
No, it's a necessary element to be proven on all the products.

[00:23:55] Speaker 05:
On the control products, the room systems, it comes down to whether or not the incidental openings can be vents and apertures.

[00:24:03] Speaker 05:
On the tent products, there's also an issue of incidental openings, but in addition to that, as was

[00:24:10] Speaker 05:
The second trial was a question about whether the zippers that can be opened to release air and install air conditioning units could be vents and apertures within the meaning of the patent.

[00:24:21] Speaker 01:
Why don't you turn to briefly the controller issue that your friend was talking about.

[00:24:26] Speaker 01:
And his theory is it infringes if it contains limitation, even if there's this other thing in addition, the controller.

[00:24:34] Speaker 01:
What's your view of that?

[00:24:36] Speaker 01:
Right.

[00:24:36] Speaker 05:
And we set a case in our brief, an outside-the-box case,

[00:24:40] Speaker 05:
which involved a situation where a product was materially changed by adding a component.

[00:24:48] Speaker 05:
So of course there's always the requirement that you have to show that the accused product meets each and every claim limitation and that burden is never reduced.

[00:24:57] Speaker 05:
And the question comes down to whether the controller is a material change to the product such that the product does not infringe the requirement

[00:25:09] Speaker 05:
that the gas separating units and the chamber together maintain the substantial concentration of oxygen.

[00:25:19] Speaker 04:
So before you keep going on controller, do you agree that your non-controlled accused products do meet this particular claim limitation of maintaining the oxygen concentration?

[00:25:30] Speaker 04:
Because your gas separation device, in combination with your room, meet that limitation.

[00:25:37] Speaker 05:
The first trial there was an additional issue of there was a pressure argument that the pressure inside the tent was kiffin and the pressure outside the tent.

[00:25:46] Speaker 05:
At the second trial, the only defense on that issue was with respect to the control systems.

[00:25:55] Speaker 04:
Okay, so we're just talking about there's something about the control systems controller that now makes something that

[00:26:03] Speaker 04:
was infringing the non-controlled systems, now all of a sudden, or that made those things non-infringing, making them infringing, right?

[00:26:13] Speaker 04:
It's just that the controllers, the presence of the controller all of a sudden makes something that was otherwise infringing non-infringing.

[00:26:21] Speaker 05:
I take it that only in that we're talking about a single plane, that there are other locations that make those products

[00:26:28] Speaker 05:
not infringing, such as events and apertures.

[00:26:30] Speaker 05:
The drugs don't have events and apertures, so they can't infringe those claims.

[00:26:33] Speaker 04:
What's the relationship between the controller and the gas separation device?

[00:26:37] Speaker 04:
Are they integrated?

[00:26:40] Speaker 04:
Is one like 20 feet away from the other?

[00:26:43] Speaker 04:
If I looked at them, what would I be seeing?

[00:26:46] Speaker 05:
It's a separate component.

[00:26:48] Speaker 05:
As the expert admitted at trial, it is not part of the gas separation unit, but it's a separate component of the system.

[00:26:57] Speaker 05:
that interacts with a gas separation unit and instructs it how to maintain the partial pressure of oxygen, not the constant concentration of oxygen.

[00:27:07] Speaker 04:
And they're connected together by wires?

[00:27:10] Speaker 05:
Yeah, through electronics.

[00:27:11] Speaker 01:
What about your friend's other argument that even if it operates in a different way, since it meets the limitations and then does more, it's capable of infringing?

[00:27:21] Speaker 01:
It meets that theory, at least, that the product

[00:27:25] Speaker 01:
that your products are capable of infringing, even if in fact they're used in a different way with the controller.

[00:27:31] Speaker 05:
Yeah, the problem with capable is that, you know, they still have a burden to show that the product does infringe, and you can say that it's capable of infringing, but without providing evidence showing that it does in fact infringe, it does not meet that claim limitation.

[00:27:45] Speaker 01:
You say it does in fact infringe, are you saying that it's actually been used in that way, or that it does in fact even once still in the box?

[00:27:54] Speaker 05:
that it cannot be used in that way.

[00:27:56] Speaker 05:
There's no evidence that it can be used in that way.

[00:27:58] Speaker 05:
To put this into context, to talk about the zipper question, they put on no evidence showing that the zippers could be partially opened to act as vents in the meaning of the baton, and they argue, well, they're capable of being opened, but without any evidence showing that they could actually be opened and operate as vents, you can't even say not that they could be opened, that they actually were opened.

[00:28:22] Speaker 04:
Right, and there was no evidence.

[00:28:23] Speaker 04:
Yeah, they could be open to serve his sentence.

[00:28:26] Speaker 04:
Your point is that they did never put on any evidence where the zippers were, I guess, transformed or converted into being positioned in a way that they served his sentence.

[00:28:41] Speaker 05:
Right, so then it would not be vets within the meeting of the patent, so it would not meet that claim limitation, because without proof that they could be opened in such a way to act as vets and no such proof of use was put in the case, then they are not vets.

[00:28:54] Speaker 05:
Just as a door could be opened to let someone in and out, the door is a door, it is not a vent.

[00:29:00] Speaker 05:
And without putting on proof showing that the door could actually be opened, say, three inches,

[00:29:05] Speaker 05:
And when there's open three inches, you could make an hypothesis, right?

[00:29:07] Speaker 01:
Well, can't we take judicial notice of certain things?

[00:29:10] Speaker 01:
Of course a zipper.

[00:29:11] Speaker 01:
A zipper, by definition, it's made for purposes of being open and closed.

[00:29:14] Speaker 01:
So I'm not clear on what you're arguing.

[00:29:17] Speaker 01:
Are you saying that we don't know that the zipper could have actually been opened?

[00:29:22] Speaker 05:
The testimony in the case showed that when the zippers, the only testimony on use of those zippers in the case was by one of

[00:29:30] Speaker 05:
cat employees who testified that when those zippers were opened, it actually destroyed the hypoxic environment, so it had no other operating.

[00:29:38] Speaker 01:
Now, what you've been talking about in terms of the experts and the witnesses, this was all in the 2012 trial, right?

[00:29:46] Speaker 05:
Our most recent discussion had concentrated on 2012.

[00:29:48] Speaker 01:
Well, was this also in 2009?

[00:29:53] Speaker 01:
Where were these issues in 2009?

[00:29:55] Speaker 05:
So the reason that this became a big issue in 2012

[00:29:59] Speaker 05:
trial is because the judge narrowed the issues on the 652 patent.

[00:30:04] Speaker 05:
The only issue that went to the jury was whether the zippers on the tents on the 652 patent qualified as ends and apertures.

[00:30:12] Speaker 01:
And what about was that you say the only issue they went to that well in 2009 was that also before the jury in addition to other issues or was that not before the jury?

[00:30:22] Speaker 05:
Yes, it also had the burden to prove that there were no

[00:30:25] Speaker 05:
that the cassock had been an aperture.

[00:30:27] Speaker 02:
You say that the judge narrowed those particular issues.

[00:30:30] Speaker 02:
Did the judge do that suesponte?

[00:30:32] Speaker 02:
Were there arguments that the judge should do that?

[00:30:35] Speaker 05:
Right, so the hypoxic argues in this brief that there was no claim construction briefing at the second trial, but it was not a suesponte decision.

[00:30:42] Speaker 05:
There was extensive argument between the parties and the judge on claim construction issues and on what issues would go to the jury.

[00:30:48] Speaker 02:
Is it correct that the judge made that claim construction just

[00:30:54] Speaker 02:
prior to going to the jury at the close of evidence?

[00:30:58] Speaker 05:
There were two different claim constructions.

[00:31:00] Speaker 05:
I would say it was certainly not a surprise to either party.

[00:31:02] Speaker 05:
There had been discussion throughout trial on what those claim constructions would be.

[00:31:06] Speaker 05:
They were finalized right before it went to the jury, but it had been aired throughout trial.

[00:31:13] Speaker 02:
So a quick question on lost profits.

[00:31:16] Speaker 02:
The theory that was advanced by Hipparchico, did it include sales made abroad?

[00:31:22] Speaker 02:
Did it account for sales made abroad?

[00:31:24] Speaker 05:
No, that was part of the issue about whether there were competitors there, that there were only two competitors.

[00:31:30] Speaker 05:
And there's a lot of evidence in the record that there were other competitors, some of those competitors, located abroad.

[00:31:38] Speaker 02:
So there was no part of the lost profit theory that included or tried to account for sales that were made abroad, foreign sales.

[00:31:47] Speaker 02:
That's correct.

[00:31:48] Speaker 01:
OK.

[00:31:49] Speaker 01:
Thank you.

[00:32:03] Speaker 03:
I'll be fast.

[00:32:04] Speaker 03:
First, with respect to foreign sales, Your Honor, there was no distinction drawn between sales made by CAT, whether the recipient was abroad or in the United States.

[00:32:14] Speaker 03:
Because CAT was located, CAT is located in Colorado, any sale made from Colorado to wherever else was included.

[00:32:21] Speaker 03:
And there was no issue with the trial about, well, these sales have been excluded because they were abroad or otherwise.

[00:32:27] Speaker 03:
The only issue of exclusion came up in connection with 1498,

[00:32:33] Speaker 03:
which we haven't discussed, but is in the brief, about whether or not military sales should have been included.

[00:32:38] Speaker 03:
And that came up, your honors have the papers.

[00:32:42] Speaker 04:
The other issue I would like to... Just to clarify, are these products by CAT made in the United States and then shipped abroad?

[00:32:51] Speaker 04:
I'm talking about foreign sales.

[00:32:53] Speaker 04:
Were they made abroad?

[00:32:54] Speaker 03:
No, no.

[00:32:55] Speaker 03:
Well, depends on what you mean by made.

[00:32:57] Speaker 03:
The various components are made here,

[00:33:00] Speaker 03:
and shipped abroad and assembled.

[00:33:01] Speaker 03:
If you have a tent, what is shipped abroad is the same as shipped here, which is that the folded up tent is in a box and the pipes are in a box.

[00:33:13] Speaker 04:
So then this isn't a 271A theory, it's a 271F1, if I'm guessing correctly, theory.

[00:33:20] Speaker 04:
They're going into shipped abroad and then they're

[00:33:23] Speaker 04:
They're made, they're put together abroad?

[00:33:26] Speaker 03:
That they are sold here and shipped abroad, yes.

[00:33:29] Speaker 04:
You think that sale is here?

[00:33:30] Speaker 03:
Yes.

[00:33:32] Speaker 03:
And I'll point out that that's not an issue that was raised, although by any party.

[00:33:39] Speaker 03:
How about you answer your question?

[00:33:40] Speaker 03:
Yes.

[00:33:43] Speaker 03:
I would like to point out that with respect to claim construction, this Court has been very clear that we have to start analyzing claim construction, the ordinary meaning of the words

[00:33:53] Speaker 03:
that are being to be construed.

[00:33:56] Speaker 03:
At no point did Judge Crousey start or depart from any meaning of what the claims mean, the dictionary words or the common understanding.

[00:34:05] Speaker 01:
Are you talking about claim construction or are you talking about events?

[00:34:08] Speaker 03:
Whether events, apertures, or portable.

[00:34:11] Speaker 03:
I will point out that with respect to portable, as changing his construction for the first trial to the second trial, he offered no explanation why all of a sudden

[00:34:19] Speaker 03:
Well, one-sentence or half-sentence explanation was no longer acceptable, other than to say he believed that the 222 patent was, he couldn't see how the 222 patent was valid.

[00:34:32] Speaker 03:
And so he then can support, it's either portable or it's not, and then he went off from there.

[00:34:38] Speaker 01:
Okay, thank you.

[00:34:40] Speaker 01:
Thank you.