[00:00:09] Speaker 01: Mr. Dunner, are you going to distribute examples of the toys? [00:00:36] Speaker 01: Are you going to distribute examples of the toys that we're going to be talking about? [00:00:42] Speaker 01: The last time you were on a panel with me involving a toy was Hot Wheels, and we did distribute samples. [00:00:50] Speaker 01: I'm surprised you remember that. [00:00:52] Speaker 01: I do remember that. [00:00:54] Speaker 01: Many years ago. [00:00:55] Speaker 00: Well, we'll announce the case. [00:00:57] Speaker 00: as Intervention Toys vs. MGA, Walmart, and Toys R Us, 2014, 1731. [00:01:08] Speaker 00: Mr. Donner. [00:01:10] Speaker 01: Good morning, and may it please the Court. [00:01:12] Speaker 01: The District Court committed four fundamental errors which undermined its refusal to grant chain mall on obviousness. [00:01:20] Speaker 01: I'll just summarize them. [00:01:22] Speaker 01: The district court ruled that Phillips, the expert for MGA, conceded that neither the laser chest nor the swift references disclosed game pieces and therefore did not disclose a combination necessary to render the claims obvious. [00:01:40] Speaker 01: The district court failed to find a motivation to combine, and not only did the district court fail to find a motivation to combine, the district court didn't even mention motivation to combine in its opinion. [00:01:53] Speaker 02: The district court... The question on JMOL of obviousness is whether the jury had substantial evidence to find the absence of a motivation to combine [00:02:10] Speaker 02: in the relevant ordinary skilled artisan. [00:02:13] Speaker 02: So it doesn't really matter what the district court said in the district court's opinion. [00:02:19] Speaker 02: We have a straightforward substantial evidence question for a finding that the jury made. [00:02:26] Speaker 02: So why is there not substantial evidence for the finding that there is no [00:02:31] Speaker 02: there would have been no motivations combined by the relevant artists. [00:02:36] Speaker 01: Because I suggest that there was no substantial evidence on the question of what a person of ordinary skill in the art was, on the question of motivation, on the question of whether there was a nexus to secondary considerations, and a key finding of the district court and a key argument by intervention [00:02:56] Speaker 01: was that MGA's expert conceded that there were missing elements and that their expert testified that there were missing elements. [00:03:07] Speaker 01: Those were essential to support a substantial evidence case and I submit all of them are lacking and let me explain why. [00:03:16] Speaker 02: Can you focus very specifically on the motivation to combine? [00:03:20] Speaker 02: Pardon? [00:03:20] Speaker 02: Can you focus just on the motivation to combine? [00:03:23] Speaker 01: I will. [00:03:24] Speaker 01: The motivation to combine, first of all, in the Swift reference itself, the Swift reference basically says that the invention in that case can be done physically or electronically. [00:03:41] Speaker 01: This court in the prior appeal said that the record contains substantial evidence [00:03:47] Speaker 01: that in the case of strategy games, inventors were indifferent to whether it was physical or electronic and they did both. [00:03:58] Speaker 01: And I suggest that given those teachings that to hold that there was no motivation to combine when you've got a game, all of these games involve lasers and optics. [00:04:13] Speaker 01: All of them are board games involving lasers and optics. [00:04:17] Speaker 01: The laser chess articles were computer games. [00:04:21] Speaker 01: The Swift article was a physical game. [00:04:24] Speaker 01: I suggest that nothing could be clearer than that there was a motivation to combine. [00:04:29] Speaker 01: And if we even look at the KSR case, the court talks about a few options [00:04:38] Speaker 00: uh... that were clear uh... options in the field with very few choices uh... i'm not you've got to two games and maybe a few others we've held already that they're uh... both analogous to each other and that you don't need an express statement indicating the [00:05:03] Speaker 00: motivation to combine two known games to make a better game? [00:05:11] Speaker 01: I'm not sure I understand your question, Your Honor. [00:05:13] Speaker 00: In other words, the mere existence of these similar games suggests their combinability. [00:05:22] Speaker 01: I agree with that. [00:05:24] Speaker 01: But we have a better case than that. [00:05:26] Speaker 01: We have the reference saying, hey, you can use this in a physical game or a computer game. [00:05:32] Speaker 01: the prior panel of this court basically saying that there was evidence, a lot of evidence in the record showing that in strategy games inventors did it, it mattered not to them whether it was physical or electronic. [00:05:49] Speaker 01: I suggest nothing could be clearer than that there was a motivation to combine these games. [00:05:54] Speaker 01: In fact, the Swift reference basically teaches, suggests [00:05:57] Speaker 01: using a physical game or a computer game, which in my view is the clearest form of motivation to combine. [00:06:06] Speaker 01: The district court didn't even mention motivation to combine in its consideration of [00:06:11] Speaker 02: But that doesn't actually matter, right? [00:06:14] Speaker 02: Because we have to assume that the jury found the absence of a motivation to combine. [00:06:20] Speaker 01: It does not matter, but it is a background fact that you would think that when one of the key issues is motivation to combine, the court would have mentioned it. [00:06:31] Speaker 01: I'm not saying that is a game changer. [00:06:34] Speaker 01: to use a bad pun. [00:06:36] Speaker 01: But the fact is that there was a more fundamental problem, and that is that intervention argued to the jury that both its expert and MTA's expert said there were no game pieces, which is what the claims, the asserted claims, talk about game pieces. [00:06:58] Speaker 01: But neither one said that. [00:07:00] Speaker 01: And this is a critical point. [00:07:01] Speaker 01: This was evidence before the jury that I think misled the jury, and it misled the district court judge. [00:07:08] Speaker 01: Let's assume that the record, we have to look at the record to determine whether a reasonable person, reasonable jury could have come out this way. [00:07:19] Speaker 01: Let's assume there's two pieces of evidence that point towards a motivation to the mind. [00:07:26] Speaker 01: there's two pieces of evidence that point against it and our job is to decide could a reasonable person have picked one or the other of those two alternatives. [00:07:42] Speaker 01: Do we subtract the two from two and get zero or do we say it's a question of the weight of the evidence and [00:07:53] Speaker 01: the jury has the responsibility to weigh the... How do we deal with a record when there's conflicting evidence going in different directions? [00:08:04] Speaker 01: Your Honor, if you had the evidence in equipoise on one side versus the other side, then... I wasn't hypothesizing that case, because I don't know what equipoise in that kind of a case is. [00:08:16] Speaker 01: But I'm saying if you did, if you did, if you had the scales that were even, [00:08:21] Speaker 01: which goes to Judge DeRonto's question, then you have a substantial evidence question. [00:08:26] Speaker 01: In this case, you don't have even scales. [00:08:28] Speaker 01: You have one, and the record will show my left hand is way up and my right hand is way down. [00:08:34] Speaker 01: But the jury picked your right hand. [00:08:37] Speaker 01: And the question now is, could we consider that substantial evidence, even though your left hand was up in the air? [00:08:46] Speaker 01: Your Honor, my right hand was so low, below the podium, that I don't think there was... It wasn't actually, it was about desk height. [00:08:58] Speaker 01: I don't think there was substantial evidence on motivation. [00:09:02] Speaker 01: I think it was all on one side. [00:09:04] Speaker 01: There's no evidence at all on the other side. [00:09:07] Speaker 01: So little, Your Honor, as to be well below substantial. [00:09:13] Speaker 02: Can I ask a slightly different version of what I think is the same question, which we're focusing on? [00:09:23] Speaker 02: It's one thing to say, as we said in our last opinion, that once an inventor has defined his problem, or in this case, their problem, as creating a certain kind of laser game, the computer version is analogous art. [00:09:41] Speaker 02: But that comes in at stage two. [00:09:43] Speaker 02: Stage one is getting to the definition of the problem as a physical laser game. [00:09:51] Speaker 02: That's a different question, and one needs a motivation to define the problem that way. [00:09:59] Speaker 02: Did the other side have evidence that said an ordinary skilled artist, and I just accept for these purposes that we've got the right ordinary skilled artist and the mechanical engineering person, [00:10:13] Speaker 02: would not have had a motivation in the world of games to pick out this laser chess article and this swift thing and say, let's do this combination when there are a million other games we could create. [00:10:33] Speaker 01: Your Honor, I don't think they had any substantial evidence. [00:10:37] Speaker 01: They focused on monopoly games. [00:10:39] Speaker 01: They said the field is a monopoly game and that we're talking about different things. [00:10:48] Speaker 01: They're saying that you couldn't combine them, if I recall the testimony, because there were substantial challenges to convert a computer game [00:10:58] Speaker 01: to a physical game and they mentioned the Kinematic Mountain. [00:11:03] Speaker 02: Set the mirrors in a very precise and non-moving way in order for the reflections to work right. [00:11:11] Speaker 02: Put that aside, I'm focused on stage one. [00:11:15] Speaker 02: What evidence did they have that there would not have been a motivation to select these two things and combine them to define the problem as creating a real world laser board game? [00:11:31] Speaker 01: Your Honor, as I recall their evidence, it was focused on their definition of the field of the invention. [00:11:38] Speaker 01: And moreover, the problems involved that suggest that when you've got a physical game and a computer game, the problems were so enormous to create the physical game, the things I mentioned, that one wouldn't think of combining a physical game [00:11:54] Speaker 01: with a computer game and the fallacy in that argument is that they were talking about the commercial product because the claims say nothing about these critical elements. [00:12:07] Speaker 01: They say nothing about one-tenth of a degree of accuracy for the Kinematic Mountain. [00:12:11] Speaker 01: They don't even define a Kinematic Mountain. [00:12:14] Speaker 02: They don't use that language but they do talk about [00:12:20] Speaker 02: The beveling, but they don't use that camphor or whatever it is. [00:12:24] Speaker 01: They talk about beveling, and there are a couple of figures that show beveling. [00:12:29] Speaker 01: But Claim 33, there are no claims that say beveling, including Claim 33, on which they focus. [00:12:36] Speaker 01: Claim 33 says that you put a piece in a recess, but it doesn't say anything about beveling, and it doesn't say anything about one-tenth degree accuracy, which they said was critical not only to workability, but to the success of the invention in the marketplace. [00:12:53] Speaker 01: It says nothing about displacement errors. [00:12:56] Speaker 01: It says nothing about optical quality. [00:12:58] Speaker 01: All those things were absolutely critical. [00:13:00] Speaker 02: Why are you focusing only on Claim 33? [00:13:03] Speaker 02: We have a jury verdict of infringement, do we not, of quite a number of claims of infringement? [00:13:11] Speaker 02: Yes, and you didn't make any distinction in your brief in saying, [00:13:16] Speaker 01: uh... the verdict must fall if we win only on claim thirty three and even if the rest are good that's true your honor but interventions focusing on claim thirty three so that's why we're responding that's why i'm responding to claim thirty three none of the claims [00:13:32] Speaker 01: talk about beveling, none of them talk about these critical aspects of a commercial product, which they said was necessary for commercial success, which they said was necessary for workability, which leads me to the point that because of that, there's no nexus. [00:13:51] Speaker 01: There's no nexus between the secondary considerations that they argue are highly relevant, [00:13:57] Speaker 01: and the claimed invention whatever claim you take, whether you take claim 33 or others, they argue claim 33, so I mention claim 33. [00:14:06] Speaker 00: Mr. General, you wanted to save some time for a bottle? [00:14:10] Speaker 00: I do, Your Honor. [00:14:11] Speaker 00: We'll give you your full three minutes since you've got a lot of questions. [00:14:15] Speaker 00: Mr. Auditon? [00:14:17] Speaker 02: Thank you, Your Honor. [00:14:24] Speaker 03: I think fundamentally the court's questions have already shown that this is a borderline frivolous appeal. [00:14:33] Speaker 02: We have a situation... Questions don't show much of anything. [00:14:36] Speaker 03: Okay. [00:14:37] Speaker 03: Well, I mean, I will say that I think it is a borderline frivolous appeal because substantial evidence [00:14:44] Speaker 03: does support every single underlying factual basis, underlying obviousness. [00:14:50] Speaker 02: So what is the line, the evidence for drawing a line of the sort that I [00:14:58] Speaker 02: raised for consideration in discussion with Mr. Donner between what we said, sensibly enough, in the first appeal about how somebody who had defined for himself the problem of creating a laser game would of course look at the computer articles and the physical board game and the motivation to combine question. [00:15:23] Speaker 03: Sure. [00:15:25] Speaker 03: Well, I think the line [00:15:27] Speaker 03: in terms of substantial evidence, is it some evidence that a reasonable jury could rely on? [00:15:32] Speaker 03: What is the evidence, is the question. [00:15:34] Speaker 03: So in this case, the evidence is, well, first of all, in terms of burden of proof, it's their burden of proof to show that by clear and convincing evidence. [00:15:44] Speaker 03: They didn't really show anything. [00:15:46] Speaker 02: You still haven't started talking about the evidence. [00:15:49] Speaker 03: OK, I'll tell you what the evidence is. [00:15:50] Speaker 03: Dr. Imroll, my expert, testified at trial. [00:15:53] Speaker 03: that one of ordinary skill in the art would not have combined the laser chess articles with SWIP because there would have been substantial technical problems that would have prevented a successful result in achieving the 242 invention. [00:16:13] Speaker 02: Although this court did say... Is there something in that most substantial technical challenges, is there something more than the alignment and fixity of the mirrors? [00:16:27] Speaker 03: Well, that's the main thing, John. [00:16:29] Speaker 03: That is the main thing. [00:16:30] Speaker 03: Because if you look at the claims of the 242 patent and the disclosure, it talks a lot about how important it is to maintain optical alignment and how there are features [00:16:42] Speaker 03: Specification and the figures talk in some detail about the features of the invention that are necessary to create a physical real-world 3D game that can maintain optical alignment and our expert testified well [00:17:10] Speaker 03: Even though, you know, in terms of being reasonably pertinent in terms of game strategy, the laser chess articles are talking about a similar strategy game, they have absolutely nothing to do with solving problems like maintaining optical alignment in the physical world. [00:17:30] Speaker 03: So that's why one ordinary skill in the art would not combine the laser chess articles with the SWIFT pattern. [00:17:38] Speaker 03: because the laser chess articles are, they're pixels on a screen, completely two-dimensional. [00:17:44] Speaker 03: Moreover, even the swift pattern doesn't teach anything about how to move physical pieces around the board, rotate them, move them from space to space during gameplay, and maintain optical alignment. [00:17:58] Speaker 03: We had detailed testimony from Dr. Reimer where he explained the technical challenges that you have [00:18:04] Speaker 03: You've got a child playing the game, somewhat careless about how they place their pieces, but the specification and the figures specifically show you've got these beveled edges all on the basis of the pieces and you can see also in the recesses on the game board that create this kinematic mount. [00:18:25] Speaker 02: Do any of the claims at issue [00:18:29] Speaker 02: Discuss beveling by word or otherwise. [00:18:32] Speaker 02: No, they do not so if you take for example Claims so you I mean, I'm just trying to get a fix on on your argument. [00:18:40] Speaker 02: It sounds to me like you're throwing you know, the claims don't define the solution to the [00:18:49] Speaker 02: you know, precision and stability of alignment problem. [00:18:53] Speaker 02: Neither does, either do the laser chess articles. [00:18:58] Speaker 02: And in order for claims that don't claim the solution to work, they would have to have had some solution in the specification that enables it. [00:19:10] Speaker 02: And therefore, there wouldn't have been a sufficient motivation to combine. [00:19:14] Speaker 03: Right. [00:19:14] Speaker 03: There's an enabling disclosure in specification. [00:19:18] Speaker 03: as I've been pointing to in my boards here. [00:19:22] Speaker 03: In addition, the claims do cover that type of a solution to maintain optical alignment. [00:19:28] Speaker 03: The claims talk about it. [00:19:30] Speaker 03: For example, claim 31 says, where an alternate turns are taken to move plane pieces for the purpose of deflecting laser beams so as to illuminate the key plane piece of the opponent. [00:19:41] Speaker 03: So we're talking about physical pieces that have to move around a physical board [00:19:45] Speaker 03: and basically land on a space each time and maintain alignment in a way that you can bounce a laser beam off four, six, eight, ten mirrors and still hit the target. [00:19:58] Speaker 03: There is nothing in either Swift or the laser chess articles that teach that and again with laser chess we're talking about something that although it may have been reasonably pertinent with respect to gameplay and strategy [00:20:12] Speaker 03: taught absolutely nothing about how to solve that real world problem. [00:20:16] Speaker 00: Mr. Audison, if we agree with you to uphold the jury verdict of non-obviousness, what about willfulness? [00:20:25] Speaker 00: Here are two references, and they are related. [00:20:28] Speaker 00: Weren't there reasonable arguments? [00:20:34] Speaker 00: Are we hearing reasonable arguments to find that the invention is obvious, and therefore, infringement was not objectively willful? [00:20:46] Speaker 03: No. [00:20:47] Speaker 03: No, Your Honor, and I'll tell you why. [00:20:49] Speaker 03: As an initial matter, [00:20:52] Speaker 03: MGA didn't even attempt to formulate a legally sufficient obviousness defense until after they were adjoined by the district court and the case came to appeal to this court the first time. [00:21:06] Speaker 03: They didn't hire an expert to examine motivation to combine. [00:21:10] Speaker 03: They didn't hire an expert to examine level of ordinary skill. [00:21:13] Speaker 02: Let me focus this a little bit. [00:21:16] Speaker 02: Under Seagate, there are two components. [00:21:17] Speaker 02: Both of them have to be satisfied. [00:21:19] Speaker 02: Assume, at least for the moment, that the second component is factual, call it subjective bad faith, and assume that the jury could easily find subjective bad faith because of the [00:21:34] Speaker 02: could find a kind of reckless and irresponsible disregard for any patent rights. [00:21:39] Speaker 02: But sometimes reckless conduct turns out okay because it's actually objectively okay. [00:21:49] Speaker 02: So focus just on why their arguments don't establish an objective basis for an invalidity defense, even if they never thought about them at the time. [00:22:01] Speaker 03: They had a complete failure of proof on every single gram factor. [00:22:06] Speaker 03: They didn't submit any evidence of motivation to combine. [00:22:09] Speaker 03: In fact, what their experts said with respect to motivation to combine was, well, these are similar ways to teach the same concept. [00:22:17] Speaker 03: I mean, that's much worse than Dr. Yanko in the InTouch case, where she said, well, I used the patent as a roadmap to put these puzzle pieces together. [00:22:28] Speaker 03: What she did was actually a lot more than what Mr. Phillips did in our case. [00:22:35] Speaker 03: That's one thing, motivation to combine, complete failure. [00:22:40] Speaker 03: Number two, level of ordinary skill in the art, complete failure. [00:22:45] Speaker 03: Mr. Phillips said that he applied the Ruiz factors, but he didn't do it. [00:22:50] Speaker 03: He admitted on cross-examination that he didn't really apply the Ruiz factors. [00:22:55] Speaker 03: He looked at the patent and he said, [00:22:57] Speaker 03: Wow, in order to make something that cool that would maintain optical alignment, I'd have to get a mechanical engineer with three years of experience specifically in lasers and optics. [00:23:11] Speaker 00: What about the provisional rights issue? [00:23:14] Speaker 00: Why wasn't the amendment, which narrows the scope of the claims in response to the projection, a substantial change? [00:23:23] Speaker 03: Yes, your honor. [00:23:24] Speaker 03: That's an excellent question because with respect to claim 39 most questions from the bench I think you've told me that before judge. [00:23:33] Speaker 03: Thank you With respect to claim 39 claim 39 was already specifically found by the patent office to be patentable Okay, so it was not amended [00:23:47] Speaker 03: to avoid a rejection based on SWIFT. [00:23:49] Speaker 03: And if you actually look, I mean, I can give you the sites, and I think we address this in our brief. [00:23:55] Speaker 03: But the PTO confirmed the patentability of Claim 39 in the same office action where it said other claims were invalid based on SWIFT, or obvious based on SWIFT. [00:24:06] Speaker 03: So truly, the changes made to Claim 39 with respect to warning did not change the scope of the claim. [00:24:16] Speaker 03: The concept that the pieces in the claim and in the game were movable was already fully incorporated into claim 39. [00:24:31] Speaker 02: Was there a change of a transition term? [00:24:34] Speaker 03: There was a change in a transition term. [00:24:39] Speaker 03: They went from consisting up to comprising. [00:24:41] Speaker 02: That's a broadening change. [00:24:44] Speaker 02: Yes, that's a big change. [00:24:46] Speaker 03: It's a broadening change, but I think what that shows is they weren't trying to narrow the claim to avoid the prior art in any way. [00:24:53] Speaker 02: But the identity test doesn't say why. [00:24:57] Speaker 02: Substantial Identicality. [00:25:02] Speaker 02: If it's broadening, it's broadening for whatever reason. [00:25:06] Speaker 03: I think if you look, not just the Claim 39, but all of the claims, [00:25:11] Speaker 03: They're really in a similar situation where the claims are talking about movable pieces already, because the claims talk about moving the pieces from space to space and rotating them to deflect the laser to hit the key piece. [00:25:30] Speaker 03: And so the concept of movable pieces is already in place. [00:25:35] Speaker 02: You've been talking only about claims 39. [00:25:42] Speaker 02: Do you have an argument that broadening changes, even if made in claim 39, were not made in some of the other claims? [00:25:52] Speaker 02: And so who cares about 39? [00:25:54] Speaker 02: Or do you not have that argument? [00:25:56] Speaker 03: Yes. [00:25:57] Speaker 03: With all of the claims. [00:25:58] Speaker 02: On the provisional, on this provisional right. [00:26:00] Speaker 02: Right. [00:26:00] Speaker 03: With respect to provisional rights damages, all of the claims had the term movable inserted in various places to clarify that the pieces were movable. [00:26:11] Speaker 03: But that was something that was already really explicitly disclosed in the claim because the claims talked about the pieces moving around the board. [00:26:19] Speaker 03: So this was truly a clarifying change. [00:26:22] Speaker 02: Here's what I'm trying to, let me see if I can say this more precisely. [00:26:26] Speaker 02: Let's assume for purposes of this question that there was a broadening change in claim 39 that would make provisional rights damages unavailable as to claim 39. [00:26:39] Speaker 02: What then? [00:26:41] Speaker 02: about provisional rights. [00:26:44] Speaker 02: Is that also true of claim 31, 32, 33, 41, et cetera? [00:26:50] Speaker 03: There was a nominal rejection of other claims based on the swift reference. [00:26:54] Speaker 03: That is true. [00:26:56] Speaker 03: And a change was made to those claims to add the term movable in front of some of the terms [00:27:03] Speaker 02: But your position is that those claims already included movable anyway, so even if the examiner thought there was a prior art problem before the change and then not after, the examiner was wrong about there being a difference between those two, a substantive difference. [00:27:24] Speaker 03: Right, there was not a substantive difference because movability was already incorporated into the claims. [00:27:29] Speaker 03: So it was a clarifying change. [00:27:31] Speaker 03: It didn't change the scope. [00:27:32] Speaker 03: So the claims are substantially identical. [00:27:37] Speaker 03: So if I could talk just a little bit more about willfulness, we have a situation where MGA utterly failed on every single factual issue for its obviousness defense. [00:27:52] Speaker 03: Motivation to combine, we've talked about quite a bit, level of ordinary skill in the art. [00:27:57] Speaker 03: Their expert just glossed over it. [00:27:59] Speaker 03: He didn't apply the Ruiz factors. [00:28:02] Speaker 03: My expert did, in a lot of detail. [00:28:05] Speaker 03: With respect to differences between the prior art and the claimed invention, there are, and I know Mr. Gunner disagrees with this, but there are many, many holes. [00:28:16] Speaker 03: There wasn't a prima facie case on a single claim [00:28:20] Speaker 02: Can you name one or identify one or two claim elements that cannot be found in the combination of the two laser chest articles and SWIFT? [00:28:34] Speaker 03: Yes, game piece, playing piece, which they essentially have the same construction, game board, spaces. [00:28:45] Speaker 03: Now the reason for that is [00:28:49] Speaker 03: It's also important to understand, and we as patent lawyers know, that when you do an invalidity analysis or an infringement analysis, you have to apply the court's claim construction. [00:28:59] Speaker 02: So what aspect of the construction of those terms distinguishes SHIFT, which is a board game with pieces? [00:29:09] Speaker 03: Right. [00:29:10] Speaker 03: So the definition of game piece, as construed by the district court and was never contested, [00:29:16] Speaker 03: and it's basically the same for playing pieces, is a mirrored or non-mirrored structure that can be placed on the game board and moved by the players during the course of game play. [00:29:27] Speaker ?: Can be. [00:29:29] Speaker 03: Yeah, but that's what this, that's what the claims talk about. [00:29:33] Speaker 02: Right, but the piece isn't swift. [00:29:36] Speaker 02: Does can mean something physical or mean he's intended to be moved according to the rules of the game? [00:29:43] Speaker 03: Well, that's part of the claim construction. [00:29:45] Speaker 03: that they're moved according to the rules of the game. [00:29:49] Speaker 03: In Swift, it's a very different structure. [00:29:53] Speaker 03: First of all, it's a big table game that you'd find in an arcade or a bar. [00:29:58] Speaker 03: And when you play the game, you put these mirror assemblies into these X-shaped slots, and you jam them in there and leave them. [00:30:05] Speaker 03: You do not move them during gameplay. [00:30:08] Speaker 03: Once you put them in, they're fixed. [00:30:10] Speaker 03: This game [00:30:12] Speaker 03: is completely different because you've got pieces that you move around the board and rotate. [00:30:17] Speaker 03: Kids are playing this game, and you have to have a nice way for the pieces to seat into the recesses on the game board every time to maintain optical alignment. [00:30:30] Speaker 03: And I'll tell you what, this game works like a charm with respect to that. [00:30:34] Speaker 03: Now, the district court's claim constructions, which are completely unchallenged, [00:30:40] Speaker 03: with respect to game board. [00:30:42] Speaker 03: It's a structure having a playing surface that can support game pieces. [00:30:47] Speaker 03: Game piece we talked about, it's a structure that is moved around the game board during game play. [00:30:53] Speaker 03: These are not present in either Swift or [00:30:57] Speaker 03: the laser chest articles. [00:30:58] Speaker 03: They're just not there. [00:30:59] Speaker 00: So if you're going to apply the plane construction... Mr. Robinson, I think you can see your red light. [00:31:03] Speaker 00: I apologize, Your Honor. [00:31:06] Speaker 00: So we'll go to Mr. Donah for whatever the public has. [00:31:11] Speaker 01: Thank you very much. [00:31:15] Speaker 01: Will I get the extra time that Mr. Robinson has? [00:31:17] Speaker 00: You have three minutes. [00:31:19] Speaker 01: If your opponent had a little extra time, about three minutes. [00:31:29] Speaker 01: The fact is that Mr. Audison focused on the technical problems, which is a point I made. [00:31:42] Speaker 01: But the Swift patent is loaded with details of how to get alignment. [00:31:48] Speaker 01: The Swift patent teaches you how to get alignment in a game. [00:31:52] Speaker 01: And so if you're combining those two references, you're going to be focusing on that alignment. [00:31:59] Speaker 01: Uh, the, uh, the point about differences between the Flora and the Plain Revention, uh, there are no differences if you, in the combination. [00:32:08] Speaker 01: If you look at the Phillips claim chart, you'll see every limitation covered. [00:32:13] Speaker 01: The, the way they argued to the jury that there were differences was they said that there were no game pieces disclosed, but what they argued was, and the testimony of Phillips was there were no physical game pieces, uh, and there were no movable key pieces. [00:32:28] Speaker 01: there weren't any other differences between the combined references. [00:32:32] Speaker 01: As to Claim 39, it is quite clear that it was not done to clarify. [00:32:37] Speaker 01: There was no indefiniteness issue. [00:32:39] Speaker 01: There was no indefiniteness rejection. [00:32:41] Speaker 01: And in fact, Claim 39 was broadened not only in comprising, but there was a reference to at least two mirrors [00:32:51] Speaker 01: and change to at least one mirror. [00:32:53] Speaker 01: There are very significant changes. [00:32:56] Speaker 01: Mrs. Dunner, you're running quickly out of time. [00:32:58] Speaker 01: I don't want to delay you. [00:33:00] Speaker 01: Would you speak to the expense of the willfulness finding? [00:33:05] Speaker 01: That was an expensive finding. [00:33:08] Speaker 01: Okay, I will speak to willfulness. [00:33:10] Speaker 01: One is [00:33:11] Speaker 01: The arguments that we made looking at objectively backwards in terms of what evidence that we put in. [00:33:20] Speaker 01: We put in evidence about a difference in the person of ordinary skill in the arts. [00:33:25] Speaker 01: Imreau, their expert, admitted, he admitted, [00:33:28] Speaker 01: that a mechanical engineer would not be capable of making the invention, would not be in the field of making. [00:33:38] Speaker 01: He admitted it would be practicing the invention. [00:33:41] Speaker 01: And that is not the test. [00:33:42] Speaker 01: You look at a person's ordinary skill in the art in terms of what capability does he need to make an invention that's distinguished from practicing. [00:33:50] Speaker 01: That's one thing. [00:33:50] Speaker 01: no nexus in the secondary considerations because these critical elements were not in the claims and the commercial product was what they looked at and they said, and Einold said, for it to work and to have commercial success, you need to have these critical limitations. [00:34:07] Speaker 01: These critical disclosures were not in the 242 patent. [00:34:10] Speaker 01: They talked about a [00:34:13] Speaker 01: They talked about the kinematic mount, but they didn't tell you it needed a 0.1 degree accuracy. [00:34:21] Speaker 01: They didn't tell you how to get optical alignment. [00:34:23] Speaker 01: They didn't tell you how to do all the things that he said were critical in the game. [00:34:29] Speaker 01: I suggest we had a load of evidence that not only was reasonable, but I think should have prevailed. [00:34:37] Speaker 01: but for the misleading of the jury by the expert witness who basically looked at the wrong game, looked at the wrong game. [00:34:44] Speaker 01: You don't have an evidentiary objection before us. [00:34:47] Speaker 01: We don't know. [00:34:48] Speaker 01: We do not. [00:34:48] Speaker 01: OK. [00:34:49] Speaker 02: I mean, that is an admission or misleading or anything. [00:34:52] Speaker 02: It's pure sufficiency of evidence, either for weight of the evidence or jamo of the purposes. [00:34:59] Speaker 01: Except that Judge Pleger was talking about for me to direct my comments to willfulness. [00:35:05] Speaker 01: And I'm really trying to show that the positions that were taken were not only reasonable, but were the right positions on every front. [00:35:13] Speaker 01: And there was no willfulness case in this thing. [00:35:16] Speaker 00: Thank you, Mr. Donner. [00:35:19] Speaker 00: We will take the case under advisory. [00:35:21] Speaker 01: Thank you.