[00:00:00] Speaker 02: Next case, if I pronounce the first word properly, chronic liking Phillips, we'll call you Phillips versus Zoll Medical Corporation, 2014, 1764, Mr. Jakes. [00:00:19] Speaker 03: Good afternoon and may it please the court. [00:00:21] Speaker 03: We call them Phillips. [00:00:22] Speaker 03: It's easier for us. [00:00:24] Speaker 01: Mr. Chase, I confess to be somewhat confused about the relationship between the briefs and the jury verdict. [00:00:33] Speaker 01: I assume the jury verdict form was agreed to by both parties? [00:00:37] Speaker 03: It was agreed to by both parties. [00:00:38] Speaker 03: The form of it was largely suggested by Zoll. [00:00:42] Speaker 03: We had something that was a little bit different, for example, on the direct infringement question, but then it was jointly submitted to the court. [00:00:49] Speaker 01: Okay, but you argue both in your briefs about [00:00:52] Speaker 01: whether the jury verdict of direct infringement by Zoll can be sustained. [00:00:57] Speaker 01: I look at the jury verdict. [00:00:59] Speaker 01: I don't see any jury verdict finding that Zoll directly infringed. [00:01:03] Speaker 01: What am I missing? [00:01:05] Speaker 03: Well, Your Honor, the verdict does say that the device is directly infringed. [00:01:10] Speaker 01: Yeah, but it doesn't say that Zoll directly infringes. [00:01:13] Speaker 03: Well, that is true. [00:01:15] Speaker 01: But that also reflects- Why are we arguing about? [00:01:17] Speaker 01: Why is that being treated as an issue in the case if there's no jury verdict? [00:01:22] Speaker 01: that Zoll directly infringed. [00:01:24] Speaker 03: We have not appealed that. [00:01:27] Speaker 03: That's the other side's cross appeal. [00:01:31] Speaker 03: We agree that the devices infringe and they infringe the method claims and Zoll is responsible for that. [00:01:37] Speaker 01: You're not claiming that you have a jury, that there is a jury verdict about Zoll's infringement, right? [00:01:43] Speaker 03: Well, Your Honor, it does say that those devices directly infringe. [00:01:47] Speaker 01: That's not the same thing as Zoll. [00:01:49] Speaker 01: The devices could be infringing [00:01:52] Speaker 01: by anyone's use, but there's no jury finding that Zoll directly infringed. [00:01:58] Speaker 03: Well, I believe that the parties treated that as Zoll, and the judge entered a judgment on that of direct infringement, and now Zoll has challenged that. [00:02:11] Speaker 01: I don't follow that. [00:02:12] Speaker 01: I really don't. [00:02:14] Speaker 01: how you can get out of that jury verdict, direct infringement by result, but I don't want to hold up your time. [00:02:20] Speaker 01: I just don't see it. [00:02:22] Speaker 03: We're okay with the jury verdict because the devices do practice the method and they do infringe. [00:02:28] Speaker 01: Your primary contention is that the jury should have found contributory infringement, right? [00:02:32] Speaker 03: That's right, Your Honor. [00:02:32] Speaker 03: They should have found contributory infringement here. [00:02:35] Speaker 03: And if I could, I'll just go straight to the knowledge requirement because I think that is the one that probably is the most concerned. [00:02:42] Speaker 01: It seems to me in that respect, there's quite a bit of difference between the test claims and the waveform claims. [00:02:52] Speaker 01: With respect to the test claims, they have never argued about infringement. [00:02:56] Speaker 01: They've conceded infringement. [00:02:58] Speaker 01: That is true. [00:02:59] Speaker 01: With respect to the waveform claims, they argue that they had a substantial argument against infringement. [00:03:05] Speaker 01: That's right. [00:03:07] Speaker 01: Address that second set of claims as to why that doesn't, under the Supreme Court's decision in Comil, mean that the jury could find that there was no contributory infringement. [00:03:17] Speaker 01: With respect, now we're just talking about the waveform. [00:03:20] Speaker 03: Focusing particularly on the knowledge requirement, I would assume, Your Honor. [00:03:24] Speaker 03: Well, we go back to Arrow 2 and what is required for knowledge. [00:03:29] Speaker 03: Under this Court's precedent, as well as Arrow 2, knowledge for contributory infringement [00:03:35] Speaker 03: and intent for induced infringement are not the same thing. [00:03:39] Speaker 03: The Supreme Court certainly in Comil and in Global Tech referred to similarities between them and discussed them together, but Arrow 2 has not been overruled and in fact has relied on in those decisions. [00:03:52] Speaker 03: So if you go back to Arrow 2, the knowledge that was imparted to the infringer there was notice of infringement. [00:04:00] Speaker 03: They were accused of infringement in detail. [00:04:02] Speaker 01: Yeah, but that can't be enough, right? [00:04:04] Speaker 01: I mean, just because somebody's accused of infringement doesn't mean that they have knowledge of infringement. [00:04:09] Speaker 01: It could be a frivolous allegation of infringement. [00:04:12] Speaker 01: and here they say, well, we had good defenses with respect to the waveform claims to the infringement charge. [00:04:19] Speaker 01: Why isn't that enough for the jury to find that there was no knowledge of infringement? [00:04:25] Speaker 03: That effectively equates knowledge and intent for induced infringement, and I think they are different. [00:04:31] Speaker 03: If you look at ARRO, it did not require that level of knowledge for contributory infringement, meaning the intent to infringe. [00:04:41] Speaker 03: If you look at Arrow 2, there was an accusation of infringement, a notice letter that was sent that put them on notice. [00:04:49] Speaker 03: That is the starting date for contributory infringement in that case. [00:04:54] Speaker 03: There may be some exception to a non-frivolous accusation of infringement, but they certainly knew about the patents. [00:05:01] Speaker 03: They knew that Phillips was asserting them. [00:05:03] Speaker 03: Even though they may have had a subjective belief of non-infringement, [00:05:08] Speaker 03: That wasn't present in Arrow 2 and is not, as far as I know, been overruled by the Supreme Court. [00:05:17] Speaker 03: For the waveform patents, we think that those allegations of infringement put them on notice and gave them the knowledge under the Supreme Court cases. [00:05:28] Speaker 01: Even though they had a reasonable defense? [00:05:30] Speaker 03: Even though they may have had a reasonable subjective belief in non-infringement. [00:05:37] Speaker 03: because that was not required in Arrow and that has never been the requirement. [00:05:41] Speaker 03: In fact, if you look at this court's cases, cases like Hewlett-Packard and DSU, they do draw a distinction between contributory infringement and inducement for those purposes. [00:05:54] Speaker 03: As Your Honor recognized, I think the self-test patents are different because they did not put on an argument of infringement of most of the self-test claims. [00:06:03] Speaker 03: Non-infringement. [00:06:04] Speaker 03: Non-infringement of the self-test claims, that's right. [00:06:06] Speaker 03: and so there was certainly nothing there for the jury to find that they had any belief of non-infringement. [00:06:15] Speaker 03: Zoll made a passing reference at the end to substantial non-infringing uses, but I think that the case was always cited on like I4I and Lucent, that those features are separable from the overall device and so they don't constitute substantial non-infringing uses. [00:06:33] Speaker 03: If I could address briefly the main argument in our opening appeal on indefiniteness, those old 526 patent. [00:06:42] Speaker 03: Here, depending on the conditions for the testing of the electrodes, an electrode may or may not infringe. [00:06:49] Speaker 03: We've laid out the conditions that are not specified in the patent, their temperature, the number of shocks. [00:06:55] Speaker 01: Suppose somebody drafted a patent in which the conditions [00:06:59] Speaker 01: were specified to be at room temperature, say 65 to 85 degrees, whatever. [00:07:06] Speaker 01: Would that patent be indefinite if it said you infringe, if it exceeds a specified level at any point during that temperature range? [00:07:19] Speaker 03: I think that would be definite if it said it exceeds that number with any temperature in that range, yes. [00:07:27] Speaker 01: But that would also- Why isn't this like that? [00:07:29] Speaker 01: Because there was evidence that someone who's skilled in the art would have known to use this at room temperature and make the determination of room temperature. [00:07:42] Speaker 01: It can't be that every condition known to someone skilled in the art has to be written into the patent itself. [00:07:48] Speaker 03: I would agree. [00:07:49] Speaker 03: Every condition doesn't have to be written in. [00:07:51] Speaker 03: But these are important enough [00:07:54] Speaker 03: that they make a difference. [00:07:55] Speaker 03: We're talking about a one ohm measurement here, and the difference between 0.9 and 1.1 can be a few degrees in temperature. [00:08:05] Speaker 03: Without more precision than that, someone doesn't really know. [00:08:08] Speaker 03: They test their electrodes, and they get one result, and then somebody else, the patent owner tests it, and they could manipulate the conditions, change the temperature, lower the temperature, use 10 shocks because the first five don't infringe until it gets to that point. [00:08:24] Speaker 03: All of those conditions are not specified in the patent and that's really the problem with it. [00:08:29] Speaker 03: Someone doesn't know what conditions to use and the fact that the conditions can be manipulated. [00:08:37] Speaker 02: I'll say the rest of my time if I may, Your Honor. [00:08:51] Speaker 00: David Gindler for Zola Medical Corporation. [00:08:54] Speaker 00: I'm here with my colleague, Rich Bernholz. [00:08:57] Speaker 00: I'd like to first respond to the appeal by Phillips, and then I'll address our own cross appeal. [00:09:06] Speaker 01: So with respect to the test patents, you conceded infringement in the district court, and I guess what I'm wondering [00:09:15] Speaker 01: is how could a reasonable jury fail to find contributory infringement when you basically conceded that there was no defense with respect to infringement? [00:09:26] Speaker 00: So I disagree with the factual statement that you made, which was that we conceded infringement. [00:09:32] Speaker 00: So here's what happened. [00:09:33] Speaker 01: Well, your expert testified they were infringing. [00:09:36] Speaker 00: So let me just provide some context. [00:09:39] Speaker 00: I want to answer your question quite directly. [00:09:42] Speaker 00: We never conceded infringement. [00:09:44] Speaker 00: at any time before the case was filed. [00:09:46] Speaker 00: We chose not to put on, given the time we had, a non-infringement case on the self-test patent. [00:09:52] Speaker 01: Your testimony that it was infringing isn't a concession? [00:09:56] Speaker 00: He was asked that question on Croft. [00:09:58] Speaker 00: He did not give any opinion at all in our case on infringement. [00:10:03] Speaker 00: That's correct. [00:10:04] Speaker 01: Worse than that, he said it was infringing. [00:10:08] Speaker 01: He specifically said that. [00:10:09] Speaker 00: He was asked whether the device was infringed, and he said yes. [00:10:13] Speaker 00: The question's a little odd for the reason you pointed out I think earlier, which is that the devices have in them software and other components which are capable of being run by somebody in an infringing manner. [00:10:29] Speaker 00: What's interesting though, Your Honor, is that even with that testimony, Phillips did not win on all of its self-test clinics. [00:10:39] Speaker 00: They lost on some. [00:10:41] Speaker 00: So on the 374 patent, they lost on claims 66 and 73 against our AED Pro, and they lost on the 374 patent on claim 66 against our E series and our M series. [00:10:56] Speaker 00: They did not even prevail. [00:10:58] Speaker 00: They didn't put on an adequate case of infringement, even with that one admission by our expert after we focused our case on [00:11:09] Speaker 00: the issues of invalidity, which we thought were the strongest. [00:11:13] Speaker 00: They couldn't even prevail on all of the self-test claims. [00:11:18] Speaker 00: In fact, that's not the only thing they lost. [00:11:20] Speaker 00: They lost other claims. [00:11:22] Speaker 00: This was a highly consistent case. [00:11:23] Speaker 01: Suppose we disagree with you. [00:11:24] Speaker 01: Suppose we say, okay, with respect to the test patents, there was no reasonable infringement defense, and the knowledge required by Comil was present. [00:11:37] Speaker 01: Do you have any other argument as to why there was no contributory infringement, why the jury could find no contributory infringement? [00:11:45] Speaker 00: Well, what matters, Your Honor, is putting on evidence of the subjective intent, the knowledge of the accused party. [00:11:55] Speaker 00: That's what's required under COMIL. [00:11:57] Speaker 00: That's what's required under Global Tech. [00:11:59] Speaker 00: Infringement does not equal knowledge of infringement. [00:12:02] Speaker 00: It doesn't equal intent to infringe. [00:12:04] Speaker 00: It just means [00:12:06] Speaker 00: They were found to infringe. [00:12:07] Speaker 00: They contested infringement before the case was filed. [00:12:13] Speaker 00: There was an exchange of correspondence. [00:12:15] Speaker 00: There were meetings. [00:12:16] Speaker 00: They could not come to a meeting of the mind at all. [00:12:22] Speaker 00: What they didn't do is question, for example, any of our witnesses and say, can you take a look at claim X of this patent and tell me why you don't infringe that claim? [00:12:36] Speaker 00: or this claim of that patent. [00:12:38] Speaker 00: Tell me why you don't infringe that claim of the patent. [00:12:42] Speaker 04: And what that will do is get you to an answer of yes, I understand what you're saying, but I want to make sure. [00:12:47] Speaker 04: Are you resting your defense's contributory claim entirely on the knowledge component and that you didn't know you were infringing. [00:12:55] Speaker 04: But if we instead of that, there were substantial non-infringing uses. [00:13:00] Speaker 00: So I think we've made several arguments on our papers. [00:13:03] Speaker 00: So we have argued [00:13:04] Speaker 00: at length on the knowledge component. [00:13:07] Speaker 00: Knowledge being an intent being a quintessential jury question. [00:13:12] Speaker 00: Here, Phillips failed to put on a case of what our intent was. [00:13:17] Speaker 00: They could have done that. [00:13:19] Speaker 00: They could have tried to do that. [00:13:20] Speaker 00: They didn't, probably because they knew they wouldn't do a very good job with it, because it was hotly contested beforehand. [00:13:27] Speaker 04: You're continuing to argue knowledge. [00:13:29] Speaker 04: I just want to be clear that that's your point and not that you're arguing on the substantial non-infringing uses. [00:13:36] Speaker 00: Your Honor, there are substantial non-infringing uses on the self-test patents. [00:13:41] Speaker 00: because just because they have these capabilities, you actually don't have to use the capabilities. [00:13:46] Speaker 00: You can choose to use them or not. [00:13:48] Speaker 01: So for example, shift with so, so that it is infringing, right? [00:13:52] Speaker 00: In other words, these units have in them software on components, which operate in a certain way. [00:14:01] Speaker 01: Wait, wait, wait, just answer my question. [00:14:02] Speaker 01: Isn't it true that they're shipped? [00:14:03] Speaker 01: So they're infringing? [00:14:05] Speaker 00: No, no, they're shipped. [00:14:07] Speaker 00: When they are shipped, [00:14:08] Speaker 00: They are shipped with no battery inside, so nothing is operating. [00:14:12] Speaker 00: So the first thing that has to happen is that... So what would you... Are you saying that people wouldn't insert a battery into it? [00:14:21] Speaker 00: You have to insert a battery, and then you make decisions about what you want to do. [00:14:25] Speaker 00: I'll give you an example. [00:14:26] Speaker 01: If you put in the battery, it performs in an infringing manner, correct? [00:14:30] Speaker 00: Not necessarily. [00:14:31] Speaker 01: No, the way it's shipped. [00:14:33] Speaker 01: Unless the user makes a change in the settings, it infringes. [00:14:39] Speaker 00: Not necessarily, because I'll tell you why. [00:14:42] Speaker 00: Some of the self-test claims relate to using either a first periodic schedule or a second periodic schedule. [00:14:50] Speaker 00: You can choose one, you can choose the other. [00:14:52] Speaker 04: Is it not shipped with defaults that cover both the first and the second schedule? [00:14:58] Speaker 00: It's shipped so you can choose, absolutely. [00:15:00] Speaker 04: No, that's not answering my question. [00:15:02] Speaker 00: Okay, I'm sorry. [00:15:03] Speaker 04: I assume that if the user takes it out of the box and puts the batteries in, it's operational. [00:15:09] Speaker 00: It is operational. [00:15:11] Speaker 00: Andrew has to attach the electrodes as well. [00:15:14] Speaker 04: They don't have to make any further choices if they don't want to. [00:15:17] Speaker 00: If they don't want to, they could, I think, just leave it alone. [00:15:20] Speaker 04: And if that's the case, what are the default standards put in there? [00:15:25] Speaker 04: Are those infringing? [00:15:26] Speaker 00: Your Honor, I think the answer varies quite a lot. [00:15:29] Speaker 00: There are, I think, six accused devices, and I'm not sure I know the answer off the top of my head for all six devices. [00:15:35] Speaker 00: Four of them are hospital devices. [00:15:38] Speaker 00: two of them are meant to be used in public places. [00:15:40] Speaker 00: I'm not sure the answer is the same for each of those. [00:15:45] Speaker 04: Let's talk about the public places ones because those seem the ones that are most likely to be shipped to require no additional selections. [00:15:54] Speaker 00: And what I don't remember, Your Honor, what I don't remember is whether or not when those are shipped, if for example they're shipped to automatically work with two different periodic schedules. [00:16:05] Speaker 00: I just don't know the answer to that question if you plug the battery in. [00:16:08] Speaker 04: Let's assume they are. [00:16:09] Speaker 00: Okay. [00:16:10] Speaker 04: Do you have any argument against contributory infringement for those devices? [00:16:14] Speaker 04: Except your knowledge stuff. [00:16:15] Speaker 04: I don't want to talk about that anymore. [00:16:16] Speaker 04: I'm trying to get at if they're shipped with these defaults that have the two schedules for the self-test and all you have to do is put a battery in, those, why don't those contributory in French? [00:16:30] Speaker 00: Well, there's one other problem we pointed out in our papers, which is that [00:16:35] Speaker 00: Contributory infringement requires predicate acts of direct infringement. [00:16:40] Speaker 00: So in other words, the end users would be the direct infringers. [00:16:45] Speaker 00: In this case, Phillips presented literally no evidence of how any end user actually uses the product. [00:16:54] Speaker 00: They did ask some questions of a couple of Zoll witnesses about, do you think that the end users use the product as intended? [00:17:03] Speaker 00: The answer was, yes, we think so. [00:17:06] Speaker 00: But no evidence was put on. [00:17:07] Speaker 00: They didn't bring in one hospital, one airport, one anybody. [00:17:13] Speaker 00: This also provides a basis to affirm the jury's verdict. [00:17:17] Speaker 00: The question is, is there evidence? [00:17:19] Speaker 01: They sold the things and they sold them in a default setting that was infringing under the assumptions we're making. [00:17:27] Speaker 01: Why isn't that evidence that when it was received by the people, [00:17:31] Speaker 01: that they use them in an infringing manner. [00:17:35] Speaker 00: Your Honor, it's possible to take the machines, for example, if you're in a hospital, and decide, I don't want to run the test automatically, I want to run it on power up. [00:17:45] Speaker 00: That's a choice you can make. [00:17:47] Speaker 00: You can make other choices as well, which take it out of infringement. [00:17:51] Speaker 00: The software has that capability. [00:17:53] Speaker 00: But they chose not to put on that evidence, and the jury may have asked themselves the question, okay, [00:17:58] Speaker 00: I've heard the jury instructions and the jury instructions require that there be predicate acts of infringement by a third party. [00:18:10] Speaker 00: So is there some evidence that some hospitals, some end users actually got the equipment and were using it in just that fashion? [00:18:19] Speaker 00: It wasn't put on. [00:18:20] Speaker 00: It's the single strongest evidence that they could have put on. [00:18:22] Speaker 01: You have a jury verdict that the devices when used infringed, right? [00:18:28] Speaker 00: The jury was also asked that it's correct. [00:18:31] Speaker 00: I'm sorry. [00:18:31] Speaker 00: I didn't understand your question. [00:18:34] Speaker 00: Pardon me. [00:18:34] Speaker 00: Could you just repeat your question? [00:18:36] Speaker 01: You have a finding, a jury verdict that these things, these devices when used, infringed the self-test patents. [00:18:46] Speaker 01: Why isn't that itself a finding that there was infringement? [00:18:50] Speaker 01: Because the devices were shipped to people and sold to people. [00:18:54] Speaker 01: Why don't you have a jury finding of direct infringement by the users? [00:18:58] Speaker 00: Because it's a method claim. [00:19:01] Speaker 00: Every claim here except one is a method claim. [00:19:04] Speaker 00: Method claims are only done by practicing the method. [00:19:09] Speaker 00: The only, there's one claim, the self-test, the fail-safe claim is the only non-method claim. [00:19:18] Speaker 00: And so you show infringement. [00:19:19] Speaker 01: The jury found that the method claims were infringed, right, by the devices. [00:19:24] Speaker 00: It is. [00:19:25] Speaker 00: That was the finding. [00:19:26] Speaker 00: It's an odd finding, as Your Honor pointed out, because normally you have a party accused of direct infringement or a party accused of contributory infringement, but not a device accused. [00:19:37] Speaker 00: Your Honors, I would like to take some time to talk about our cross appeal. [00:19:43] Speaker 00: Would now be an acceptable time for me to move on? [00:19:47] Speaker 02: Yes. [00:19:47] Speaker 02: You have a total of four minutes left, so you can use it now or to respond as you wish. [00:20:02] Speaker 00: Your Honor, we did treat the jury verdict as a finding of direct infringement against sole, even though it does talk in an odd way about devices directly infringing. [00:20:15] Speaker 00: I admit it was unusual. [00:20:18] Speaker 00: We weren't there at the time. [00:20:19] Speaker 00: Our firm didn't try the case, but we saw that, and that's how we interpreted it for purposes of the appeal. [00:20:24] Speaker 00: I want to first talk about the waveform patents. [00:20:27] Speaker 00: In the waveform patents, there is a significant claim construction issue, and that is [00:20:32] Speaker 00: what is the discharging step mean? [00:20:36] Speaker 00: Is it any delivery of electricity, or does it mean the electrotherapeutic shock? [00:20:41] Speaker 00: I think if you look at the language of the claim, it's very hard to reach a conclusion that it's anything other than the electrotherapeutic shock, because that's how the claim is written. [00:20:50] Speaker 00: The preamble is directed to a delivering electrotherapy to a patient through electrodes connected to an energy source. [00:20:58] Speaker 00: The discharging step recites discharging the energy source across the electrodes to deliver electrical energy to the patient in a multiphasic waveform. [00:21:07] Speaker 00: Multiphasic is not in all the claims. [00:21:09] Speaker 00: So the same energy source and electrodes used to deliver electrotherapy as stated in the preamble [00:21:17] Speaker 00: are used to deliver the electrical energy to the patient in the discharging step. [00:21:21] Speaker 04: In other words- Before you use all your time, can I redirect you to the- Absolutely. [00:21:26] Speaker 04: The 460 patent claim and the anticipation by Wiley? [00:21:29] Speaker 04: Because that's the one I find most troubling in terms of, at least for me to decide, because it seems to turn on whether Wiley shows two different tests on two different timetables. [00:21:44] Speaker 04: Is that right? [00:21:45] Speaker 04: Yes. [00:21:49] Speaker 04: isn't the Wiley reference ambiguous enough to support that there's only one test? [00:21:55] Speaker 00: Well, let me actually direct you to, I think, exactly where you need to read. [00:21:59] Speaker 00: Let me just pull up the patent, please. [00:22:00] Speaker 04: I'm at 14.918, which is a flow chart in the Wiley reference. [00:22:06] Speaker 00: What I wanted to do was actually give you a passage to read. [00:22:11] Speaker 00: The place where I think it's just [00:22:19] Speaker 00: very clear is if you start reading in column six at line three. [00:22:32] Speaker 04: This is on fourteen nine forty one. [00:22:34] Speaker 00: Yes, it's a, it's a welly patent. [00:22:38] Speaker 00: It's a patent that begins at one page one four nine one three of the appendix. [00:22:42] Speaker 00: And if you look at page one four nine three one, what you will see [00:22:47] Speaker 00: Starting at column six is a description. [00:22:51] Speaker 00: It runs through actually column seven and even continues to column eight and it describes each test step by step. [00:23:01] Speaker 00: It starts by talking about the CPU startup test that is run and then it talks about if during the one hour of the day that the machine is programmed to run a full battery of tests, [00:23:15] Speaker 00: It then talks about each and every one of those tests that gets run. [00:23:18] Speaker 00: So if you read from column six at line three and you keep going to at least say column eight at line 13, you get, it talks about both. [00:23:33] Speaker 04: Okay. [00:23:33] Speaker 04: So this is a big block of quotes. [00:23:36] Speaker 04: Where in this, I think the number of the issue is, is this CPU test really a test or is it just the machine turns on and off? [00:23:44] Speaker 04: Where is there something in that language? [00:23:48] Speaker 00: It might be helpful if I just read it to you. [00:23:51] Speaker 00: The auto-test routine is initiated when the time on the real-time clock equals a previously selected auto-test start time stored in EPROM and the CPU memory. [00:24:04] Speaker 00: The auto-test start time is preferably set to a time when the machine is not likely to be used. [00:24:11] Speaker 04: And that's talking about the CPU test. [00:24:14] Speaker 04: That's not talking about the other daily tests. [00:24:19] Speaker 00: That's correct. [00:24:19] Speaker 00: And it says, after power up of the main CPU, the CPU performed its standard power up self-test internal to the particular type of CPU in step 210. [00:24:33] Speaker 00: And then it talks about, I'm now jumping down to [00:24:37] Speaker 00: same problem to line 61. [00:24:40] Speaker 00: If the CPU self-test did not fail step 212, then the main CPU determines if a power switch is on in step 222. [00:24:50] Speaker 00: And then it goes on. [00:24:51] Speaker 02: Mr. Kinley, your time is up and I think it doesn't help to do a lot of reading. [00:24:56] Speaker 02: Is your question about the CPU? [00:24:58] Speaker 02: Yeah, no, I have your argument. [00:24:59] Speaker 02: Your time is up and one of your problems is you cross-examine at least six issues [00:25:04] Speaker 02: We'll give you three minutes of rebuttal time on the cross appeal and let's hear from Mr. Jakes. [00:25:14] Speaker 02: You have almost seven minutes. [00:25:16] Speaker 03: Thank you. [00:25:17] Speaker 03: I'll start with the last issue on the cross appeal on Wiley. [00:25:21] Speaker 03: The experts disagreed on the way that that should be read and whether [00:25:25] Speaker 03: CPU power up. [00:25:27] Speaker 04: Well, I get that, but I look at the patent myself and it seems, and maybe this is a problem because maybe I shouldn't, as an English major, be trying to read these patents, but it seems to me that flow chart we're talking about, it uses the word CPU test and then a little later it uses a different test. [00:25:43] Speaker 04: The patent specification that he just read to me talks about two different tests. [00:25:48] Speaker 03: It uses those words. [00:25:50] Speaker 03: Our expert disagreed that that was a self-test. [00:25:54] Speaker 03: I think he described it power up and power down, and it does it every hour and checks the clock, and that was not what was meant by a self-test. [00:26:02] Speaker 03: This is an anticipation argument. [00:26:03] Speaker 03: It's a factual question. [00:26:05] Speaker 03: Our expert did disagree. [00:26:07] Speaker 03: They had clear and convincing burden, so I think that's where we are on that. [00:26:12] Speaker 03: On the question of the waveform patent infringement, I believe Zoll is really making two arguments, one on claim construction and one on the evidence. [00:26:21] Speaker 03: even crediting their argument on claim construction about a therapeutic shock, there's evidence in there that they measured the impedance during the shock. [00:26:33] Speaker 03: We don't have to go very far. [00:26:34] Speaker 03: It's just as far as their own website, which was shown repeatedly at trial, which said during the shock that the impedance measurement took place. [00:26:45] Speaker 03: They used the word shock. [00:26:47] Speaker 03: Even so, they're trying to read something more into the claims with therapeutic shock [00:26:51] Speaker 03: this sensing pulse or test pulse that they like to call it, it's part of the overall waveform. [00:26:57] Speaker 03: The prior art had a separate test pulse than a waveform. [00:27:03] Speaker 03: The judge's construction, he merely construed the discharge step as discharging the energy source. [00:27:09] Speaker 03: It happens during the discharge of the energy source. [00:27:12] Speaker 03: It happens during the main part of the waveform. [00:27:14] Speaker 03: You can't parse it out that way. [00:27:17] Speaker 03: If I could go back to a couple of issues on our main appeal [00:27:22] Speaker 03: The self-test. [00:27:24] Speaker 04: Before you move along, because I don't want to let you get away even though I didn't get to. [00:27:29] Speaker 04: I also had some questions about the no invalidary funding on claim 43, the 374 patent. [00:27:35] Speaker 04: Right. [00:27:36] Speaker 04: I mean, that one seemed to me to be much stronger in their favor. [00:27:43] Speaker 03: The fail-safe digital display. [00:27:45] Speaker 03: Well, again, we do have a factual dispute over whether or not the VivaLink brochure [00:27:50] Speaker 03: which is a very cursory reference, whether it does actually disclose a failsafe display. [00:27:55] Speaker 03: So what is a failsafe display? [00:27:57] Speaker 04: I know that's a factual one and you say it's very cursory, but it talks about that precise thing in the brochure. [00:28:04] Speaker 04: It does. [00:28:05] Speaker 04: And it does talk about- That's really problematic, even on this very high standard review. [00:28:10] Speaker 03: Yes. [00:28:12] Speaker 03: Well, it comes down to what is failsafe, as our expert explained it. [00:28:15] Speaker 03: It's not just a matter of [00:28:17] Speaker 03: Did the battery fail? [00:28:18] Speaker 03: It's not just a matter of did some component fail. [00:28:22] Speaker 03: The one thing that the VivoLink brochure doesn't show is that if you run self-tests and you get an okay or a pass symbol and the battery fails, what happens? [00:28:33] Speaker 03: It has to say if it is not working in order for that to be a true self-test. [00:28:39] Speaker 03: That's what's disclosed in the patent. [00:28:40] Speaker 03: That's what is understood by self-tests. [00:28:43] Speaker 03: If a component fails, if the battery fails, it will show not okay. [00:28:47] Speaker 03: If it fails in a particular state, it will stay in that state. [00:28:51] Speaker 03: That's all that the Vivalink brochure shows that if it fails in a state where it shows a failure, it will stay. [00:28:59] Speaker 03: That doesn't answer the other question. [00:29:01] Speaker 03: Our expert questioned that, whether that's truly a fail-safe display. [00:29:06] Speaker 04: I don't follow that. [00:29:08] Speaker 04: If it fails, it's going to show a failure. [00:29:11] Speaker 04: If it's not failing, then you don't need to show that it's failed because it's working. [00:29:17] Speaker 03: If I could go through those two scenarios just quickly again, you have one where self-tests run and it shows a failure and then the power dies and that's really what's described. [00:29:29] Speaker 03: It will continue to show failure. [00:29:31] Speaker 03: What it doesn't describe is the opposite. [00:29:34] Speaker 03: You run the self-test and it shows pass and then the battery is failed. [00:29:38] Speaker 03: What happens to that? [00:29:39] Speaker 03: Some of these indicators, they're mechanical. [00:29:41] Speaker 03: They can be stuck in one position or another. [00:29:44] Speaker 03: The one that's described in the patent to be truly fail-safe [00:29:47] Speaker 03: If there's no power, if anything fails, it will show not okay no matter what. [00:29:53] Speaker 03: That condition is not really satisfied in the Vivalent brochure. [00:29:56] Speaker 04: Okay. [00:29:57] Speaker 04: I don't want to take up too much of your time. [00:29:58] Speaker 04: You can get back to your main argument. [00:30:00] Speaker 03: I only have a couple of other things on the contributory infringement. [00:30:07] Speaker 03: The self-test and the Zoll devices, they are pre-programmed to run self-tests on two schedules. [00:30:15] Speaker 03: We did put on evidence that there were no substantial non-infringing uses. [00:30:20] Speaker 03: It really does come down to when you're shocking somebody or the self-test, are those portions of the device useful for anything else, and they are not. [00:30:35] Speaker 03: Whether or not the customers use these devices, we put on circumstantial evidence. [00:30:40] Speaker 03: We didn't have somebody come in and testify, yes, I've used this device to shock. [00:30:44] Speaker 03: But there was certainly plenty of evidence that this is how it was. [00:30:46] Speaker 03: Yeah, but that's the wrong test, unfortunately, for you. [00:30:50] Speaker 01: It's not a question of whether there was plenty of evidence for the jury to rule in your favor. [00:30:56] Speaker 01: The question is whether it was an absence of evidence, a lack of substantial evidence to rule against you. [00:31:01] Speaker 03: Well, as Your Honor's recognized, there was a finding that these devices directly infringe. [00:31:07] Speaker 03: There's no contrary evidence from Zoll that somehow these devices were not used as they were intended, that they were not used to defibrillate people, that they turned off the self-tests. [00:31:18] Speaker 03: There's absolutely nothing in there that says even though these were defaults, people actually turned them off. [00:31:23] Speaker 03: If that were the case, somebody would have said that, and that's not the situation here. [00:31:30] Speaker 02: Any further questions? [00:31:33] Speaker 02: Mr. Jakes, thank you very much. [00:31:36] Speaker 02: Mr. Giddler has three minutes for rebuttal on the cross appeal. [00:31:41] Speaker 02: Thank you. [00:31:42] Speaker 00: Thank you very much. [00:31:43] Speaker 00: I did want to return briefly to the question of contributory infringement. [00:31:50] Speaker 02: So first... On the cross appeal? [00:31:55] Speaker 00: Well, I just heard Mr. Jakes... Well, I'm happy to argue just on the cross appeal. [00:32:00] Speaker 00: It's fine. [00:32:03] Speaker 00: That's fine. [00:32:05] Speaker 02: You don't have the last word on issues that you didn't appeal. [00:32:15] Speaker 00: First, on the issue of infringement of the waveform patents, Phillips has argued that there's just really no difference. [00:32:23] Speaker 00: We have just sort of this one big pulse, and that's just not true. [00:32:28] Speaker 00: And Phillips own expert. [00:32:30] Speaker 00: recognizes exactly what happens. [00:32:32] Speaker 00: Phillips experts confirms the following, and I'm just reading his testimony. [00:32:37] Speaker 00: Zoll's products, in this case, determine impedance during a sensing pulse. [00:32:44] Speaker 00: Use that to pick a schedule. [00:32:46] Speaker 00: That's how the waveform, that's the therapeutic electrotherapy, is to be delivered, and it is that schedule that is then used to deliver the rectilinear biphasic defibrillation waveform. [00:32:58] Speaker 00: He also said [00:32:59] Speaker 00: that the sensing pulse is not sufficient under any scenario to defibrillate a patient. [00:33:05] Speaker 00: It doesn't have the energy. [00:33:07] Speaker 00: All that it's meant to do was sense and figure out what the impedance is. [00:33:14] Speaker 00: That is why under the correct construction for the waveform patterns, there can be no infringement at all. [00:33:21] Speaker 00: There's a second reason that Zoll cannot be found to directly infringe the waveform patents, and that is all of them are method claims, and all of them require shocking of patients. [00:33:32] Speaker 00: Zoll is not in the business of shocking of patients. [00:33:36] Speaker 00: The only evidence in the record of Zoll shocking anybody [00:33:40] Speaker 00: is actually evidence of clinical trials, which themselves are protected, all of which took place more than six years before the lawsuit was filed. [00:33:49] Speaker 00: So even if you could attribute the clinical trials to Zoll, and even if they weren't protected, they were all well more than six years. [00:33:59] Speaker 00: And that's the only evidence that Zoll at any time ever used a defibrillator on a patient. [00:34:07] Speaker 00: We test them, but not on people. [00:34:10] Speaker 00: They're defibrillators. [00:34:14] Speaker 00: On the self-test patent claims, Your Honor, Judge Hughes, if you do look at the passage I read to you, which is starting at column six and going to column eight, it makes it very, very clear exactly what the nature of the two tests is and the fact that it walks you through that flowchart which you see. [00:34:36] Speaker 00: I understand that looking at a flowchart can [00:34:39] Speaker 00: sometimes be confusing. [00:34:40] Speaker 04: I get that. [00:34:40] Speaker 04: But on the standard review here, we're looking at if there's any evidence that can support the jury's decision. [00:34:47] Speaker 04: And if their export said the CPU test really isn't a test as intended by the patent, can't the jury rely on that? [00:34:55] Speaker 00: I'm not sure what he said. [00:34:56] Speaker 00: What he said is that it just powers up and doesn't perform a test. [00:35:02] Speaker 00: That's the argument which they made in their brief. [00:35:04] Speaker 00: It just powers up. [00:35:06] Speaker 00: It actually says it powers up [00:35:08] Speaker 00: and then performs a test. [00:35:10] Speaker 00: That's exactly what it said. [00:35:11] Speaker 02: Thank you, Your Honors.