[00:01:23] Speaker 02: The next cases consolidated are number 14, 1472, and 141782. [00:01:31] Speaker 02: The parties are Meyer Intellectual Properties and Bodum Incorporated. [00:01:38] Speaker 02: We have appeal and cross-appeal. [00:01:40] Speaker 02: We appreciate that you have allocated your time so that it works out logically. [00:01:47] Speaker 02: The bailiff will give you the red light when you're 12 minutes. [00:01:52] Speaker 02: expire, and you are Mr. Donahue? [00:01:56] Speaker 03: Yes, Your Honor. [00:01:57] Speaker 03: Please proceed. [00:01:57] Speaker 03: Thank you, Your Honor. [00:01:59] Speaker 03: Good morning. [00:02:00] Speaker 03: If it pleases the Court, my name is David Donahue with Holland and Knight, and I represent the appellant, Cross Appellees Meyer. [00:02:08] Speaker 03: In this first part of the discussion, we're here to talk about the District Court's obviousness decision. [00:02:15] Speaker 03: It suffers from multiple layers of error, each of which warrants [00:02:20] Speaker 03: remand and reversal. [00:02:22] Speaker 03: First, the district court failed to analyze specific elements of certain of the claims in the 087 and 122 patents. [00:02:30] Speaker 03: The court generalizes all the claims into [00:02:34] Speaker 05: In the red brief on page 29, Bodum claims that you stated to the district court that, quote, the Meyer milk frother looks suspiciously like the prior art Bodum three cup. [00:02:52] Speaker 05: If, as indeed it seems, the milk frother in the 087 patent is a direct copy of the Bodum three cup, [00:03:02] Speaker 05: Aren't you accusing Bodum of copying its own prior art? [00:03:07] Speaker 03: No, Your Honor, and I think that if you look at images of the plungers, so I take you to joint appendix 20,502 and 20,509, those are facing pages. [00:03:24] Speaker 02: Which volume? [00:03:25] Speaker 03: Volume 1, Your Honor. [00:03:30] Speaker 03: That is [00:03:33] Speaker 03: Those are images of the bottom faceplate of the plunger in the Bodum three cup prior art device. [00:03:48] Speaker 03: And then if you also turn to JA 20680 towards the end of the first volume, you'll see two images of Bodum's version one plunger for its milk broth or the first accused device. [00:04:08] Speaker 03: And you'll notice when you look at the bottom faceplate, there are some significant differences. [00:04:16] Speaker 03: First, the bottom French breast is metal and it has the single bolt in the center, whereas the accused milk frother is plastic and it has the four semi-circular knobs coming down. [00:04:35] Speaker 03: If you then, and I apologize for turning you to all the different pages, [00:04:38] Speaker 03: turn to the 087 patent, which is JA 20015 and 16 actually. [00:04:50] Speaker 03: You see images of the milk brothir that Mr. Brady claimed in his patents. [00:04:58] Speaker 03: The figures are the same in the 087 and the 122 patents. [00:05:02] Speaker 03: And if you look at figure five, which is a bottom view of the [00:05:08] Speaker 03: 087 patent milk frother, and then figure 7, which is a side view of the same plunger assembly, you see how similar that looks to the accused device at JA 20600A. [00:05:24] Speaker 03: So there really is a difference, an important difference, and you see it in the plunger. [00:05:35] Speaker 01: But you contend that the lower court did not analyze all the grand factor. [00:05:43] Speaker 01: First of all, one of the things you attack is better to identify the level of skill in the art. [00:05:48] Speaker 01: Is there a really dispute at the level of skill in the art? [00:05:51] Speaker 03: There is a dispute, Your Honor. [00:05:52] Speaker 03: At the initial phase of this case, at trial, the parties agreed to a level of ordinary skill in the art, which was one or two years of educational experience. [00:06:03] Speaker 03: Bodum now argues, Meyer has maintained that level of skill in the art. [00:06:10] Speaker 03: Bodum now argues for a greater level of skill in the art, which is either an education in mechanical, a degree in mechanical engineering or industrial design along with one to three years of experience or five or more years of experience. [00:06:25] Speaker 03: So a higher standard of ordinary skill in the art. [00:06:30] Speaker 03: We think there's import to that. [00:06:32] Speaker 03: for the reason of, for example, the feet-like protrusions, which is one of the elements that the district court did not address. [00:06:40] Speaker 03: And it's also the element that I pointed out to you in the plunger images. [00:06:46] Speaker 03: Those feet-like protrusions are explained in the patent [00:06:48] Speaker 03: to help to agitate the milk, to help with the frothing. [00:06:53] Speaker 03: That's something that, as an aerospace engineer, I understand as a vortex generator, something that creates turbulence and would add to frothing and agitation. [00:07:05] Speaker 03: Someone with a mechanical engineering degree may or may not understand that, but they would certainly be closer than someone with a year or two of industrial design experience. [00:07:14] Speaker 03: So we think there is import and a difference. [00:07:17] Speaker 01: Well, if we accept your definition and the party-stipulated definition of skill of the art and proceed with the analysis based on that, wouldn't that be sufficient? [00:07:27] Speaker 03: Yes, I think that would be sufficient, Your Honor. [00:07:29] Speaker 01: Okay. [00:07:30] Speaker 01: And as to the other brain factors, I mean, there's no doubt that the lower court did talk about 1 and 3, correct? [00:07:36] Speaker 03: Yes, it didn't talk about the secondary considerations. [00:07:40] Speaker 03: It didn't address copying, it didn't address [00:07:47] Speaker 03: the teaching way. [00:07:50] Speaker 01: Okay, so the copying [00:07:54] Speaker 01: Your evidence of copying, though, is simply that you think that what you just told us, that the second one looked more like yours than the original three. [00:08:06] Speaker 03: It's a little bit more than that, but yes, Your Honor, that is part of it. [00:08:09] Speaker 03: It's also the sequence of events. [00:08:13] Speaker 03: Bodum initially sold a milk frother called a latteo. [00:08:16] Speaker 03: I believe there was one other. [00:08:17] Speaker 03: The latteo milk frother was shorter and squatter. [00:08:22] Speaker 03: We don't have any images of the plunder assembly, but you can see in page 24 of our opening grief an image of Bodum's non-elective milk frother before the patent. [00:08:40] Speaker 03: Bodum then switches to [00:08:43] Speaker 03: the accused device in about 1999 after Mr. Brady seeks patent protection first in 1996 and after Mr. Brady first shows a commercial embodiment of his device at a trade show. [00:08:57] Speaker 01: But your argument was that he shifted to the two to one ratio, but he already had the two to one ratio, didn't he? [00:09:03] Speaker 03: Not in a milk frother. [00:09:05] Speaker 03: What they had in the milk frother was the Loteo that we show in our brief. [00:09:10] Speaker 01: Right, but in the coffee press they had a two to one ratio. [00:09:13] Speaker 03: Well, we dispute that also. [00:09:14] Speaker 03: They didn't quite have a two-to-one ratio, and there's some argument as to what the proper ratio is, whether it's internal dimensions or external dimensions, but they almost had a two-to-one ratio in the French press. [00:09:29] Speaker 01: There's a couple of ways to measure it. [00:09:34] Speaker 01: One is clearly at least two to one. [00:09:35] Speaker 01: The other is almost two to one, right? [00:09:37] Speaker 01: That's correct. [00:09:39] Speaker 01: You're talking about minimal differences from the two to one. [00:09:45] Speaker 01: For copying, the only thing you're really relying on is the feed-like protrusion. [00:09:52] Speaker 03: And the change. [00:09:57] Speaker 03: From our perspective, the two to one ratio was not obvious. [00:10:01] Speaker 03: And so Mr. Brady's invention of his milk frother and then use and sale of the commercial embodiment of that milk frother may have sparked Bodum to do the same and to use a larger, narrower device. [00:10:19] Speaker 05: Is the three cup pretty much the same? [00:10:22] Speaker 03: The three cup pretty much the same as the milk frother. [00:10:26] Speaker 03: No, Your Honor, it's not. [00:10:28] Speaker 03: It is similar in proportions. [00:10:31] Speaker 03: It's a little bit less than two to one based upon the way we measure it. [00:10:36] Speaker 03: But otherwise, they look similar. [00:10:41] Speaker 03: The Bodum three cup prior our device lacks the feet-like protrusions. [00:10:48] Speaker 03: And so it is different in that regard. [00:10:49] Speaker 05: Yeah. [00:10:50] Speaker 05: But I'm asking about proportions. [00:10:52] Speaker 05: Exactly the same. [00:10:54] Speaker 03: It's close, Your Honor. [00:10:56] Speaker 03: We believe that it's a little bit less. [00:10:57] Speaker 03: It measures out to about a 1.4 ratio of height to diameter, I believe. [00:11:02] Speaker 01: But your whole evidence of copying is we showed it at a trade show, and then later they show up with something that I think looks a little more like ours. [00:11:10] Speaker 01: But you don't have any direct evidence that anyone at VOTEB saw your trade show. [00:11:15] Speaker 03: It's all circumstantial evidence, Your Honor. [00:11:17] Speaker 01: And then on top of that, copying is, as you know, it's a factor, but it's a very weak factor. [00:11:23] Speaker 01: We understand that, Your Honor. [00:11:25] Speaker 01: Okay, so what else does the Court fail to consider? [00:11:31] Speaker 03: Thank you, Your Honor. [00:11:33] Speaker 03: The District Court also, and there are two other elements that is in consider, the wire mesh screen and requiring equal to or fewer than 20 pumps to aerate the milk or the liquid. [00:11:48] Speaker 03: And then the factual dispute, which we have addressed. [00:11:54] Speaker 03: So if Your Honors don't have other questions. [00:11:57] Speaker 02: Well, I'm trying to understand really what your theory is of where the district court went wrong. [00:12:05] Speaker 02: And do I understand correctly that your position is that if the court had recognized and considered the public response to this device's commercial success and so on, [00:12:18] Speaker 02: that provides enough weight to try and understand that maybe it wasn't obvious. [00:12:27] Speaker 03: That's right, Your Honor. [00:12:29] Speaker 03: In addition to the elements that were missed and the factual disputes regarding the ratio. [00:12:33] Speaker 03: That's correct. [00:12:34] Speaker 02: Okay. [00:12:37] Speaker 02: All right. [00:12:38] Speaker 02: Let's hear from the other side. [00:12:46] Speaker 02: Mr. Bennett, you're going to provide your response to the case in chief, and then introduce your cross-appeal. [00:12:55] Speaker 04: Right. [00:12:55] Speaker 04: Well, I'll make my initial argument on the appeal, hopefully approximately eight minutes into my time. [00:13:04] Speaker 04: May it please the court. [00:13:07] Speaker 04: Odom's position that the district judge did properly evaluate the gram factors [00:13:13] Speaker 04: in concluding that the frother patent was invalid for obviousness. [00:13:23] Speaker 04: To be sure, the opinion is concise, but in there the court did make the necessary findings in order to [00:13:32] Speaker 04: to appropriately hold the patents invalid. [00:13:35] Speaker 01: Well, there's a difference between being concise and not considering all the factors that we say are necessary to an ultimate conclusion on obviousness, correct? [00:13:45] Speaker 04: Well, we believe that he did consider all factors that were material to his decision. [00:13:53] Speaker 01: So did he consider the objective condition that was proper? [00:13:57] Speaker 01: The objective condition of non-obviousness is that it's alleged teaching away and copying. [00:14:05] Speaker 04: He did not specifically consider those Your Honor, but we think that neither of those issues [00:14:11] Speaker 04: are significant enough to interfere with the judge's finding that the patent was obvious. [00:14:18] Speaker 04: In other words, they don't raise a material question of fact that would interfere with somebody's judgment. [00:14:23] Speaker 01: You can see that our case law says that where there's proper evidence of non-obviousness, that you have to consider it. [00:14:34] Speaker 04: Yes, Your Honor. [00:14:35] Speaker 01: I'm aware of the case law. [00:14:39] Speaker 01: because what they proper wasn't meaningful? [00:14:42] Speaker 04: No, Your Honor, I don't think that the mere fact that he didn't consider them, I recognize the court's teaching on that subject, but in this case, I think that the issues are so insignificant that they would not raise the material issue of fact, and that this court, since it has power to review a summary judgment, de novo could look to evidence in the record and make a proper decision on those [00:15:08] Speaker 04: on those facts, which I'd be glad to bring to your attention if you'd like. [00:15:11] Speaker 02: You say they're insignificant in your view, but we don't know if the trial judge would have deemed them insignificant. [00:15:19] Speaker 02: You're saying because he didn't talk about them, he must have considered them insignificant? [00:15:26] Speaker 04: Yes, Your Honor. [00:15:26] Speaker 04: I think that there's evidence in the record which the judge could have considered, and if he had found them significant, I presume that he would have [00:15:37] Speaker 04: mentioned them in his opinion. [00:15:42] Speaker 04: For example, the teaching away argument. [00:15:48] Speaker 04: There is in the record a warning that Vodum had put in with its three cup and other coffee makers. [00:15:55] Speaker 05: About glass scratching. [00:15:59] Speaker 04: Right, about glass cracking and that you shouldn't, it said never use normal coffee maker for frothing milk [00:16:06] Speaker 04: as you will scratch the glass and the coffee maker is not safe for using anymore. [00:16:10] Speaker 04: But that statement, implicit in that statement, is the fact that the frother can be used, or the three cup can be used for frothing. [00:16:18] Speaker 04: Otherwise, there would be no reason to provide the warning. [00:16:22] Speaker 05: So they're not saying you can't use it. [00:16:23] Speaker 05: As I understood it, what it's saying is, if you scratch the glass and you pour hot coffee into it, or boiling water, the thing can crack because of the scratches. [00:16:36] Speaker 05: exclusively use it for frothing milk, you're fine and dandy. [00:16:40] Speaker 04: That's exactly the importance of the warning, Your Honor. [00:16:43] Speaker 04: That's the way I read it as well. [00:16:45] Speaker 04: So I think implicit in that warning is the fact that the three cup, volume three cup, could very well be used as a milk frother. [00:16:52] Speaker 04: Otherwise, there'd be no reason to give the warning. [00:16:55] Speaker 04: I don't think that's a teaching away under the patent law. [00:16:58] Speaker 01: What about the copying argument as it relates to the prong, the four feet? [00:17:03] Speaker 04: Well, Your Honor, as far as the capping evidence goes, there is no evidence in the record that Mr. Bodum or anybody at Bodum saw the Brady embodiment of the device, the Meyer frother, before selling their own three-cup frother. [00:17:25] Speaker 02: I mean, their own skinny frother. [00:17:29] Speaker 02: There was no question. [00:17:30] Speaker 02: You said that it wasn't a trade show and was seen and observed. [00:17:35] Speaker 02: Aren't there presumptions that logic? [00:17:38] Speaker 02: Well, there's no evidence. [00:17:40] Speaker 02: And then it turns out that something that looks identical is produced, that there was some connection. [00:17:48] Speaker 04: Well, the evidence, Your Honor, in the record is only that Mr. Brady displayed the frother at the 1996 trade show in San Francisco. [00:17:59] Speaker 04: There's no evidence anybody from Bodum attended that trade show, much less saw the fraud there. [00:18:04] Speaker 02: So where did it come from? [00:18:06] Speaker 02: All of a sudden. [00:18:07] Speaker 02: All of a sudden, the design changes and matches the one that was on display. [00:18:13] Speaker 02: And your one is too that there are logical interventions, are there not in such a good condition? [00:18:25] Speaker 04: Well, the evidence in the record, Your Honor, is that a customer requested a skinnier type frother from Bodum, and that Bodum did not design the product itself, but went to third-party manufacturers and bought off-the-shelf glass and plunger elements that were available in the market. [00:18:45] Speaker 02: Maybe that doesn't even have to be considered because the rules of prior art is that if the prior art is out there, it doesn't matter if you knew about it or not. [00:18:56] Speaker 04: I think in terms of copying, Your Honor, it would make a difference in the fact that the prior art's out there is not enough to show that it was a copy. [00:19:05] Speaker 04: I mean, the only evidence of copying is that they look alike. [00:19:08] Speaker 04: It's just as logical an explanation, I think Mr. Bodum's explanation, that a customer asked for a taller, skinnier frother, and he went to manufacturers. [00:19:17] Speaker 04: In this case, he said China and bought the items that were sold to them from those manufacturers. [00:19:26] Speaker 04: So there's not a hint in the evidence in the record, except for the fact that they look alike, which I think this Court has held is not sufficient to make a finding of copying significant enough to be a secondary factor in connection with an obvious determination. [00:19:44] Speaker 04: There's no evidence that Bodum had ever seen the thing prior to coming out with its own version of the tall skinny frother. [00:19:52] Speaker 04: And as I mentioned, the parts were purchased off the shelf, so to speak, from a manufacturer. [00:19:59] Speaker 01: What's your response to your friend's argument that you're, in fact, now arguing for a higher level of skill in the arts than you stipulated to at the first trial? [00:20:09] Speaker 04: Right. [00:20:09] Speaker 04: Your Honor, I don't think that's significant to this case. [00:20:12] Speaker 04: The difference between the two reported levels is so minor that I don't think it would be determinative of the outcome of the case. [00:20:21] Speaker 04: whether the district judge considered the matter under either definition. [00:20:25] Speaker 04: I mean, both of the definitions of the ordinary skill relate to some level of education, either in design or an engineer, and or one to three years, or I think it was one year in the case of the agreed jury instruction and three years of experience in the case of Mr. Anders report. [00:20:49] Speaker 04: But we don't think that those differences are material and that the plaintiff has not shown that they would affect the obviousness determination. [00:21:02] Speaker 04: There's no way that you say, well, they're different, but we don't believe that they have shown the obvious, how they would affect the obviousness determination. [00:21:11] Speaker 01: If anything, it seems a little odd, because the plaintiffs are arguing for a lesser level of skill in the art. [00:21:17] Speaker 01: And you would think if you had to have a higher level, it might be less obvious. [00:21:21] Speaker 01: But a lesser level would seem to support the other side. [00:21:25] Speaker 04: It would make it more obvious, yeah. [00:21:28] Speaker 04: I think you could have it reversed, frankly. [00:21:30] Speaker 04: So if the court doesn't have any other questions on that subject, I'd like to turn to our appeal, the court's permission. [00:21:38] Speaker 04: I used up a little over eight minutes here. [00:21:41] Speaker 04: uh... it's it's both position that the district court abuses discretion in finding that the case this case was not exceptional in light of the totally the circumstances the case and the supreme court's decision in acting fitness as well as this court's prior decision in the visual case recent decision in the business case it's kind of uh... because you had to ground one of the inevitable condom just for a minute but the other ground [00:22:10] Speaker 01: litigation misconduct, and they're continually depressed to keep the bottom three cups out. [00:22:19] Speaker 01: But you didn't really argue that given the fact that the patent was obvious, that [00:22:28] Speaker 01: it wasn't meritorious, that it wasn't a meritorious case. [00:22:32] Speaker 01: You simply just argue that they engaged in litigation with conduct because they tried to keep critical prior art out. [00:22:40] Speaker 04: Right? [00:22:41] Speaker 04: That is our focus, Your Honor. [00:22:43] Speaker 04: Although we do address in the brief that we don't think that the case had substantive strength. [00:22:50] Speaker 01: uh... that that we we've been we've had a little bit but in the most of the court that wasn't you've had you've got to read right and first had to do with what you characterizes litigation improper litigation strategy so the problem is clearly we disagree with the trial court ruling in the first appeal but what you're asking us to do is to say that [00:23:14] Speaker 01: Their motions were frivolous, and their continued request that the court keep with its same ruling for frivolous, and essentially that the court's own rulings were so wrong that that trial judge couldn't see that it was all frivolous. [00:23:32] Speaker 01: You see what I'm saying? [00:23:34] Speaker 01: Yes, Your Honor. [00:23:34] Speaker 01: The trial judges fought their arguments. [00:23:37] Speaker 04: But I think that the facts in this case support our arguments in that regard. [00:23:41] Speaker 05: Is transparently false testimony by a party in itself, litigation misconduct sufficient to... I think it is, Your Honor. [00:23:55] Speaker 04: You said transparently false testimony? [00:23:57] Speaker 05: Yeah, by a party where they testify about lack of knowledge of something and it's clear they're lying. [00:24:05] Speaker 04: Well, I think if the lawyer was complicit in presenting that testimony, [00:24:10] Speaker 04: uh... which i guess you have to assume i think it would be litigation misconduct and so i mean i suppose there's always the possibility that a witness says something the lawyer didn't expect but putting that aside we don't really have a testimony problem here as much as our position is that the two things that the uh... what you're asking is Mr. Brady [00:24:29] Speaker 05: Brady, right? [00:24:31] Speaker 05: Brady was the inventor? [00:24:32] Speaker 05: His testimony that he had been a salesman for Bodum, but he wasn't aware of the three cops in his specifics. [00:24:45] Speaker 04: He gave that testimony in deposition, Your Honor, but our problem isn't so much with the testimony as with the actions of counsel in the case, because [00:24:56] Speaker 04: You know, we had a very experienced district court judge here, but as he said himself during one of the oral arguments on these issues, he was not an expert in patent law. [00:25:06] Speaker 04: We had lawyers who were clear experts in patent laws. [00:25:10] Speaker 05: Who gave that testimony in depositions? [00:25:12] Speaker 05: I'm sorry? [00:25:12] Speaker 05: Who gave that testimony in depositions? [00:25:15] Speaker 04: Mr. Brady. [00:25:16] Speaker 04: Mr. Brady gave that testimony. [00:25:19] Speaker 04: You know, he was obviously aware of the... Right. [00:25:21] Speaker 04: That's what I thought. [00:25:22] Speaker 04: He sold it for 10 years. [00:25:23] Speaker 04: We have all kinds of documentary evidence in the record that shows that [00:25:26] Speaker 04: He worked with Mr. Bodum to promote that product with William Sonoma. [00:25:29] Speaker 05: I misheard you. [00:25:30] Speaker 05: That's why I asked. [00:25:33] Speaker 04: But getting back to the lawyer's conduct, our position comes as a couple of things. [00:25:39] Speaker 04: Number one, that the motions in Lemonade were so far out of bounds that they were not well-founded. [00:25:46] Speaker 04: They were frivolous as a matter of fact and law. [00:25:51] Speaker 04: And that started the progression of keeping Bodum's prior art [00:25:55] Speaker 04: and the Three Cup out of evidence. [00:25:57] Speaker 04: The other thing, there was a motion in Lemonade which was granted challenging, or trying to bar our expert Robert Anders testimony because he did not issue a proper report. [00:26:11] Speaker 04: As this court found, [00:26:14] Speaker 01: But you understand... He did issue a proper report. [00:26:17] Speaker 01: Do you understand the awkward position you're putting us in? [00:26:19] Speaker 01: In other words, you're asking us to say not only that the trial court was wrong in its rulings, which we've already said, but that the trial court wasn't able to see through those motions to see that they were not just wrong, but they were patently proven. [00:26:37] Speaker 04: Right. [00:26:38] Speaker 04: And that's the first part, Your Honor. [00:26:42] Speaker 04: But there's a second step playing off of those motions, which was probably even more significant in terms of why we believe there was litigation misconduct in this case. [00:26:52] Speaker 04: And the second step was, at the end of all those motions, the testimony about the Brodom Three Cup and the catalog pages that would show that the product was in existence prior to the critical date of the patent were admissible. [00:27:11] Speaker 04: So, we were allowed to discuss the Bodum Three Cup in our opening statement. [00:27:15] Speaker 04: But then just before, right at the conclusion of the plaintiff's case, counsel argued to the district judge successfully that the Bodum Three Cup itself should not be admitted because it would be an end run around the court's prior rulings. [00:27:32] Speaker 04: But that was a misrepresentation because the prior rulings were that the Three Cup was going to be admissible. [00:27:42] Speaker 04: No, the trial court barred testimony by Mr. Bodum about the Three Cup and wouldn't allow the catalog pages into evidence. [00:27:51] Speaker 01: Let's talk about your inequitable conduct argument. [00:27:54] Speaker 01: I'm sorry? [00:27:54] Speaker 01: Let's turn to your inequitable conduct argument. [00:27:56] Speaker 04: Inequitable conduct? [00:27:57] Speaker 01: Yes, Your Honor. [00:27:58] Speaker 01: All right, so you have substantial evidence that Mr. Brady was involved in selling the Bodum Three Cup, right? [00:28:10] Speaker 01: Yes. [00:28:11] Speaker 01: But do you have any evidence that he was aware that the Bodum 3-cup had a 2 to 1 ratio other than the fact that it was part of the product group that he was telling? [00:28:25] Speaker 04: We don't have direct evidence of that, Your Honor, but his familiarity with the 3-cup would certainly lead to the conclusion that he had knowledge of that ratio. [00:28:35] Speaker 04: And the 3-cup also was, I mean, [00:28:41] Speaker 04: that element of the Three Cup was one of the elements that was submitted by Mr. Brady as a reason why the, as part of the novelty of the, you know, that led to his, part of the novelty not disclosed in prior art that led to his invention. [00:28:59] Speaker 04: And so I think it's implicit that he, [00:29:03] Speaker 04: He would be charged with the knowledge of the two-to-one ratio because he doesn't know that. [00:29:07] Speaker 01: That's not a merit that's made to us here, that the two-to-one ratio was not added during prosecution. [00:29:13] Speaker 01: It was always in the claim. [00:29:15] Speaker 01: And that it was just moved from one section to another. [00:29:19] Speaker 04: Right. [00:29:19] Speaker 01: But I mean, the... Do you agree with that characterization of the prosecution history? [00:29:26] Speaker 04: No, I don't think so, Your Honor. [00:29:29] Speaker 01: And that's what he's arguing now. [00:29:33] Speaker 01: I don't know if he argued it below, but he's arguing that to us today. [00:29:37] Speaker 04: I don't think so, Your Honor. [00:29:39] Speaker 04: It was my understanding that the 2 to 1, the device that contained the 2 to 1 ratio was something new that was brought to the examiner's attention after he had initially denied the claims in the patent. [00:29:54] Speaker 04: It was part of the, you know, there was a series of things in the [00:29:58] Speaker 04: in the novelty, which was the two-to-one ratio, the plunger assembly and so forth, which of course we say was all borrowed from the 3Co. [00:30:10] Speaker 02: Okay. [00:30:11] Speaker 02: Thank you, Mr. Bennett. [00:30:12] Speaker 04: Thank you, Ernest. [00:30:26] Speaker 01: I'd like to start where we left off, because you say that the 3 to 1 ratio was always in the claims, and it wasn't added. [00:30:33] Speaker 01: And that's not how I read the prosecution's history. [00:30:36] Speaker 01: I see two amendments, one of which puts it in, and the other of which moves it up. [00:30:42] Speaker 01: But I don't see that it was in the original application. [00:30:47] Speaker 01: So I want to know why you would say that. [00:30:50] Speaker 03: Your Honor, I'm looking for... [00:30:54] Speaker 03: I apologize. [00:30:56] Speaker 03: I'm looking for the initial claim set in the prosecution history, where I believe it always was. [00:31:01] Speaker 03: It was at the bottom of a claim. [00:31:04] Speaker 03: It wasn't necessarily in the first claim, but it was always in the claim set. [00:31:09] Speaker 03: And then ultimately it was moved up. [00:31:13] Speaker 02: Was it always in the specification or observable from the drawings? [00:31:21] Speaker 03: Well, there's case law, Your Honor, I believe that you can't measure... It wasn't objective to his new matter, was it? [00:31:28] Speaker 03: No, it was not. [00:31:30] Speaker 03: It was not. [00:31:31] Speaker 03: And it was always in at least a claim. [00:31:33] Speaker 03: That's not to say that it was in every claim. [00:31:37] Speaker 01: Show me where it was originally in any claim. [00:31:42] Speaker 01: Because I see two separate amendments. [00:31:47] Speaker 03: Your Honor, with apologies, could you tell me where you're looking? [00:31:50] Speaker 01: Okay, so there's... [00:31:51] Speaker 01: One of the amendments is a 30086 and that's where it appears to have been moved up. [00:32:03] Speaker 01: But then if you go to 30114 and you look at the examiner's discussion of the interview, it says discuss the aspect of the height diameter ratio [00:32:16] Speaker 01: of the instant claims of view of the prior art, applicant will incorporate such limitation in the step of the process in a further amendment. [00:32:26] Speaker 01: So it appears that your statement that it was just moved up in the same claim is not accurate and that, in fact, it was actually in response to the rejection that it was put in to the claim. [00:32:39] Speaker 03: Well, it was put into [00:32:43] Speaker 03: It was added to certain of the claims. [00:33:00] Speaker 03: But it was in at least one of the claims, Your Honor. [00:33:35] Speaker 03: Your honor, I apologize. [00:33:36] Speaker 03: I'm not finding it. [00:33:38] Speaker 01: Okay. [00:33:41] Speaker 05: Well, let me ask you this. [00:33:43] Speaker 05: In the red brief on 26, you say that, I'm quoting, the district court made no mistake in finding, internal quote, there is no specific evidence that the inventor was aware of the voting three copies of prior art reference, close quote. [00:34:00] Speaker 05: But on the prior page, you say, Meyer acknowledged before the district court that Brady had a general knowledge of the Bowdoin Three Cup French Press. [00:34:12] Speaker 05: And if he had a general knowledge of it, how is it that knowledge of the prior owner? [00:34:19] Speaker 05: How is it the knowledge of? [00:34:21] Speaker 05: How is it his general knowledge of the Bowdoin Three Cup French Press is not knowledge of the prior owner? [00:34:29] Speaker 03: And maybe we weren't as clear as we could have been, but we were trying to make a distinction between materiality and knowledge. [00:34:38] Speaker 03: We're not saying that Mr. Brady was unaware. [00:34:40] Speaker 03: What we're saying is there's no evidence that Mr. Brady was aware that it was material, particularly as any different than any of the other multiple French presses that were put before the Examiner in both the 087 and the 122. [00:34:57] Speaker 01: telling that he put a lot of French pretzels before the examiner, but none of which have the 2 to 1 ratio, and yet one of the very French pretzels he sold had at least, as you say, almost exactly the 2 to 1 ratio. [00:35:12] Speaker 03: Not necessarily, Your Honor. [00:35:14] Speaker 03: It's a question of what Mr. Brady knew at the time. [00:35:17] Speaker 03: And unfortunately, there is very little evidence in the record as to what that was beyond our acknowledgment that Mr. Brady was, at some level, aware of the Bodum three-cup breakfast. [00:35:29] Speaker 03: Well, he sold it. [00:35:30] Speaker 03: We're agreeing. [00:35:30] Speaker 03: Right. [00:35:31] Speaker 03: Yes, Your Honor. [00:35:31] Speaker 03: We're agreeing with that. [00:35:32] Speaker 03: Whether or not he understood it was material, I think, is a separate issue. [00:35:36] Speaker 03: And whether there was a- Were the ones he put in front of the examiner ones he sold? [00:35:42] Speaker 03: There's no evidence as to whether or not they were. [00:35:45] Speaker 03: It's my understanding that he sold other products, so they may have been, but I do not know. [00:35:50] Speaker 03: And I don't believe the record tells us that. [00:35:59] Speaker 03: If I may, I'd like to turn to... Thank you. [00:36:07] Speaker 03: This case is not exceptional. [00:36:10] Speaker 03: What was done at the trial court was a series of motions trying to exclude evidence that Meyer believed were being improperly used based upon what Meyer believed to be an insufficient expert report or evidence that had not properly been identified to court. [00:36:35] Speaker 03: and to Meyer. [00:36:38] Speaker 03: While we acknowledge that this court disagreed and we have not challenged any of those rulings since, it's hardly exceptional to follow a trial court's rulings or to seek to exclude an expert report that a party believes to be deficient. [00:36:57] Speaker 01: Well, every single motion you filed was aimed at keeping out the three times, correct? [00:37:04] Speaker 03: No, not necessarily. [00:37:05] Speaker 03: The initial motion was aimed at excluding art that hadn't been used, either hadn't been provided in the interrogatory responses. [00:37:15] Speaker 01: Right, but by the time you got up here you confessed to us that it had been provided in the interrogatory responses. [00:37:20] Speaker 01: That you told the judge it hadn't been, the judge bought that, but when you got here you conceded that it had been provided in the interrogatory responses. [00:37:27] Speaker 03: Some of it had been. [00:37:28] Speaker 03: That's right, Your Honor. [00:37:28] Speaker 03: And then the next motion was to limit, well, I guess it was a combined motion, but limiting the prior art to that used by Mr. Anders in his report, which is two pieces of, two prior art devices, the Ghedini patent and the Bodum Three Cup French Press, as well as a drawing. [00:37:47] Speaker 01: But then if you actually read the report, you see that he actually references the Meyer Bodum Three Cup [00:37:52] Speaker 01: He focuses on those two for purposes of that one particular opinion, but the report itself contained reference to those other prior art. [00:38:00] Speaker 03: It did, and it did certainly in the sense that he had considered various other prior art, but the only prior art that he had charted and provided analysis of. [00:38:09] Speaker 01: And your argument to the trial court was you were surprised by this reference to the Bowdoin Three Cup because he'd never mentioned it, and that wasn't the case, right? [00:38:17] Speaker 03: That is not the case. [00:38:18] Speaker 03: He had mentioned the Bowdoin Three Cup. [00:38:21] Speaker 01: I mean, you convinced the trial court to do a lot of things partially because you were mischaracterizing what you knew and what you've been told, right? [00:38:31] Speaker 03: I don't believe that's the case. [00:38:33] Speaker 03: We intended to be careful and direct with the trial court. [00:38:41] Speaker 03: So it's our belief that we put forward truthful statements to the trial court. [00:38:48] Speaker 03: that just turned out to be unfair, perhaps incorrect, certainly not intentionally untrue, Your Honor. [00:39:05] Speaker 02: I have a couple of minutes if there's anything else you need to tell us. [00:39:08] Speaker 03: Thank you, Your Honor. [00:39:12] Speaker 03: The only other point I think that may be worth addressing, unless you have more questions, we talked about materiality. [00:39:19] Speaker 03: Like the lack of evidence with materiality, there's no evidence that Mr. Brady intentionally withheld the Bodum Three Cup as a reference. [00:39:30] Speaker 03: In fact, to the contrary, he provided a number of French presses, and so it is at least [00:39:38] Speaker 03: as reasonable an inference that Mr. Brady simply forgot perhaps thinking of the Latteo milk frothers that he may have also sold. [00:39:45] Speaker 03: The record doesn't say the Latteo being the older version of the Bodum three cup or the Bodum milk frother or that he believed it to be cumulative and therefore not necessary. [00:40:00] Speaker 02: Okay. [00:40:00] Speaker 02: Thank you. [00:40:06] Speaker 02: Mr. Bennett. [00:40:07] Speaker 04: Your Honors, so on the point about the inequitable conduct that Your Honor had just raised at the end there, it's our position that while there is no direct evidence of Mr. Brady's knowledge at the time, and which is not surprising, I mean, your opinion in there has since recognized that rarely will there be direct evidence, and particularly in this case where the critical date was in 1995 and the case, the infringement case, wasn't brought until 2006. [00:40:34] Speaker 04: I can tell you we sure looked for direct evidence, but we didn't find any [00:40:37] Speaker 04: There was no evidence of any documents going back to that period of time. [00:40:41] Speaker 04: But recognizing that, I think this Court of Theorisms reached the sensible conclusion that inequitable conduct could be shown if the most reasonable inference that could be drawn from the evidence [00:40:53] Speaker 04: would be that the inventor intentionally did not disclose the prior art. [00:41:00] Speaker 01: What's a reasonable inference and what's not a reasonable inference? [00:41:03] Speaker 01: Isn't that something that we would defer to the lower court's determination on? [00:41:08] Speaker 04: Yes, Your Honor. [00:41:08] Speaker 04: But I think in this case, the district court abused its discretion on that issue, because each of the factual predicates that the district court listed is manifestly incorrect. [00:41:19] Speaker 04: And there were three factual predicates for his decision on inexorable conduct. [00:41:24] Speaker 04: The first was that there was no specific evidence that the inventor was aware of the Bodum III cup as prior art reference at the time he obtained the two patents in suit. [00:41:35] Speaker 04: Well, the evidence demonstrates that he was intimately aware of the Bodum III cup at that time. [00:41:42] Speaker 04: He'd sold it for 10 years as a manufacturer's representative of Bodum. [00:41:47] Speaker 04: The second finding of the district factual finding was that [00:41:50] Speaker 04: While he may have been aware that such a coffee maker existed, the fact that it was primarily a device to make coffee rather than one to froth milk [00:41:58] Speaker 04: could create a reasonable explanation for not advising the PATH examiner. [00:42:01] Speaker 01: I assume that we agree with you that the trial court was too dismissive with respect to the inequitable conduct claim and at minimum should have had an evidentiary hearing or something to determine, to assess the inequitable conduct claim. [00:42:14] Speaker 01: That's still only one factor, right? [00:42:16] Speaker 01: We don't have any case law and certainly after Octane couldn't have case law that says that one factor in and of itself is always sufficient for P-shifting, right? [00:42:26] Speaker 01: So we have to send it back, and the trial court would still have to assess the totality of the circumstances. [00:42:33] Speaker 01: So at most, you would get another remand. [00:42:37] Speaker 01: I think there's facts in the record, Your Honor, that would support the fact that the most reasonable inference would be... But even if we agreed with that, wouldn't the court still be allowed to weigh everything else in assessing whether or not the case is exceptional? [00:42:54] Speaker 04: Well, the courts waited once and came up with the three incorrect reasons, Your Honor. [00:42:58] Speaker 04: So I think that this court, I mean, yes, that is a possible sensible outcome for sure. [00:43:05] Speaker 04: But I guess I could see this court making the decision itself based on the evidence that's in the record. [00:43:12] Speaker 01: Would that be consistent with Heimer? [00:43:17] Speaker 04: I would think so, Your Honor. [00:43:18] Speaker 01: We're supposed to review for abuse of discretion. [00:43:23] Speaker 04: Well, the district court abuses discretion. [00:43:26] Speaker 04: We would say the evidence clearly reveals that this inference is the most likely inference to be drawn from the facts in the case, and that therefore it would be appropriate. [00:43:39] Speaker 04: The last thing I'd like to say, Your Honor, is that going back to the point of the litigation misconduct, at page 29 of our brief, we cite three [00:43:53] Speaker 04: statements from council's, Myers council's argument in trying to exclude the Three Cup successfully, in which they, which council said, made misrepresentations to the prior district judge and said that we were trying to circumvent the court's ruling, previous rulings, which was not true, we were trying to enforce the court's previous rulings, [00:44:20] Speaker 04: by relying upon documents that this court has already excluded. [00:44:24] Speaker 04: And the documents that we're talking about were the catalog pages that were going to be the corroboration for the existence of the Three Cup during the relevant period. [00:44:33] Speaker 04: And that was said three times. [00:44:38] Speaker 04: Second one, the only way they can corroborate is by using prior art the court has excluded. [00:44:42] Speaker 04: They're back-ending the prior art in this case. [00:44:45] Speaker 04: Well, the court hadn't excluded it. [00:44:46] Speaker 04: Prior at that time, the court had said that the three-coup was going to be admissible and permitted us to use it during our opening statement. [00:44:55] Speaker 04: But then the judge cut our legs out from under us because he ruled to the contrary. [00:45:01] Speaker 04: But it's our position that it was these completely erroneous statements, misleading statements by the Meijer counsel that led with approximate cause, you will, of that decision [00:45:15] Speaker 04: And that decision caused the trial to be a complete waste of time. [00:45:20] Speaker 02: You need to wrap it up. [00:45:21] Speaker 02: We're over time. [00:45:22] Speaker 02: Thank you, Your Honor. [00:45:26] Speaker 02: Thank you. [00:45:26] Speaker 02: Thank you both for your cases taken into submission.