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Case today is 2015-1038 WCIP versus Kohler.

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Mr. Rosencrantz, please proceed.

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Good morning, Your Honors.

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Thank you.

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You may please the court.

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Your Honors, the motivation to combine the known elements in this case was stark.

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Government agencies actively exhorted manufacturers to take land-based catalytic converter technology and put it on boats.

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A government-sponsored study said, do it this way.

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It provided a roadmap.

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The only two manufacturers in this industry followed the roadmap at exactly the same time to produce similar products using the very elements that were described in that government-sponsored study.

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The invention was obvious, and I'll turn later on if I have the time, to what makes this case even worse, which is the color was found to have been willful even though it came out with its product

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four years before the patent even issued.

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So let me start with obviousness, which I'll spend most of my time on.

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To overcome six rejections, WBIP emphasized that what it invented was a compound control engine that performed two functions at the same time.

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But WBIP admits that another patent, the FIPS patent, had the same compound control structure.

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And all that it did was to add the coolant.

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Can we discuss the FIPS patent invention?

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Yes, Your Honor.

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Is it right that FIPS did something that's unconventional in having some kind of reverse control system with respect to air and fuel being introduced into the engine, where instead of the operator

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with a throttle introducing air into the engine, the operator is now the one responsible for injecting fuel into the engine.

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And then there's some kind of computer that then tries to figure out how much air then to introduce.

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Which is the reverse of what is customarily done.

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Correct.

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And that was an element of novelty, but let's just be clear on what Vips did and what Vips didn't do and what was borrowed by WBIP.

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Has that kind of reverse system ever been reduced to practice as far as you know?

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There's no evidence in this record that that particular manifestation of the function has been reduced to practice.

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But I just want to emphasize, so if you look on page 25 of our opening brief, there is the claim, sort of the key claim here, the core of it.

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And it enumerates various elements.

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It's got five elements that were directly out of FIPS.

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Everyone agrees that FIPS taught those five elements.

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Right, but what I'm trying to understand is why would one of ordinary skill in the art pick up FIPS off the shelf if there's something

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kind of, I don't know, oddball about what FIPS is doing.

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And that's why I'm trying to understand what is EGR?

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What is this exhaust gas recirculation feature?

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Is that something FIPS needs in order to do its reverse of the air and the fuel?

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No, Your Honor.

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So FIPS has these five elements that we were talking about.

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FIPS also does two additional things.

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One is

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that it flips the fuel and the air, and that you see in a comparison between figure one and figure two of this.

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That would be kind of odd in a marine generator, wouldn't it?

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Because instead of the air, you've got water.

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How does that work?

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No, so Your Honor, the water comes later on.

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The water comes to cool the exhaust.

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So the air, at least as described, for example, in the WBIP patents, the air and the fuel are combined in the combustion engine.

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The catalytic converter is a separate aspect, and it's cooled by water through a manifold or through a jacket.

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But the water doesn't mix with the marine engine.

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And that had been done many, many times.

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The addition of coolant to a marine engine doesn't interfere in any way.

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But to get back to Judge Chen's question, so there were two separate things.

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Take fifth in those five elements, which were adopted by WBIP.

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Now, the seventh thing, that is, that one function that WBIP claims was invented is how you control the air and the gas.

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Do you do it forwards?

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Do you do it backwards?

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That's not necessary for an engine to operate.

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WBIP claims every single way of performing that function.

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It claims the forward way.

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It claims the backwards way.

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It claims the sideways way.

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but it still takes those five elements from FIFS.

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What it doesn't do is that reverse scheme.

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Why would you start with FIFS to answer the question you started with, Your Honor?

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FIFS is a catalyst converter engine that is applied to exactly the same problem that Westerbeek was trying to solve, which is a fixed speed engine.

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And the government says, take catalytic converter technology,

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use this feedback control scheme, which is straight out of FIPS as well, but it was common, and FIPS solves the fixed speed problem.

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So you can take the five elements of- Yes, my concern is, I understand that FIPS has almost all of the elements of the claim, and so that's why your side chose FIPS to be, to spotlight as the primary reference.

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But along, what comes with FIPS is some

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challenging issues for you in that we have unrebutted testimony from the other side saying that FIPS is a very strange breed of combustion engines and that nobody has ever done this before and nobody would want to even try to work with FIPS because of all these difficulties, whether it's doing the reverse of the flipping of the air and the fuel or whether it's even

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considering this recirculating the exhaust gas, which is going to be a wet exhaust system for a marine environment.

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Well, so two things to say about that.

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Let me start where you ended, Your Honor.

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That exhaust gas recirculation, that was done in marine engines.

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In fact, the Southwest Research Institute report, the government-funded report that I mentioned, refers to EGR.

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So that was actually very common.

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And you recirculate the gas up here where there's gas, you introduce the water later on downstream in the exhaust.

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Let me bring you back to some basics here.

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We're reviewing a jury verdict of non-obviousness, right?

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And it was a black box verdict.

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You didn't ask for any specific findings.

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It was, is it invalid or not?

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And the jury said, not invalid, right?

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Yes, your honor.

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So under our case law, we have to assume that every underlying factual finding was found in favor of that conclusion, correct?

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Yes, your honor.

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And motivation to combine as well as likelihood of success as a component of motivation to combine are factual determinations, correct?

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Yes, with one caveat, your honor, and that is that this court doesn't just take testimony from experts on either side on motivation to combine and say, okay,

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That's a jury question.

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This court routinely looks behind the ultimate conclusion on motivation to combine and says, OK, two experts, as it did, for example, in ABT just two months ago, two experts have announced an ultimate conclusion.

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But the basic facts were all agreed upon.

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The standard of review that we're looking at is the review of a jury factual finding.

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In other words, we have to conclude that no reasonable jury could disagree with you on what fifth

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teaches or whether there would be a motivation to combine that given the very points that Judge Chen just made.

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Yes, Your Honor.

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It's a substantial evidence with a couple of plain legal principles that this court consistently reviews for.

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For example, back to Judge Chen's earlier question, this court has said multiple times back to Beckman and again most recently in APT that an expert can't just come in and say,

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Oh, that patent, that would never work.

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It wouldn't even have worked in a land engine, which is all that this expert said.

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All he said was he was impeaching the original invention, not whether you can combine it with water.

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He was just saying, I would never think that you could use a land engine in this way.

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So this, this court has said that's simply impermissible testimony, simply to impeach what is presumed to be enabled prior art.

[00:10:03] Speaker 01:
But what, what if the expert testimony, we read it to say, Sips is so bizarre.

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I don't see why one of ordinary skill in the art that was

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looking to solve the problem of reducing carbon monoxide emissions with the marine engine would start with this.

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Well, again, your honor, what this court does is to say that's an argument about inoperability.

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You take the patent for what it teaches.

[00:10:28] Speaker 01:
It's a little different than inoperability, or at least that's what I'm trying to express.

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I'm trying to express that there's something unusual and difficult and unattractive about FIPS in this

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expert's estimation that you wouldn't want to start with that.

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It was almost like starting from a trench rather than on plain ground in trying to solve the problem.

[00:10:52] Speaker 00:
Well again, you still take FIPS for what it teaches apart from that reversal of fuel and air and it still teaches those five elements including the one that was found to be inventive and that ultimately overcame

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the rejections, that one element being controlling speed and the air-fuel ratio at the same time.

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Fifth still teaches that, even though its implementation of that is described in a way that this inventor, excuse me, that this expert, their own engineer, referred to as oddball.

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But I also want to get back to Your Honor's point, Judge Chen, about this being unrebutted testimony.

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It was unrebutted only in the sense that Amber was the last one to testify.

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But our expert did get up on the stand and say, yes, of course there would be motivation to combine.

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He said those words, contrary to what my friend says on the other side.

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And he specifically said, the reason you would start with it is because it solves that problem.

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This is exactly the sort of thing one would start with.

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And again, to underscore the government says, start with catalytic converter technology.

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focus on that art, and this was the piece of prior art that... There was a lot of catalytic converter technology out there that would not have worked, that you could have put together with these coolant elements and you wouldn't have gotten a functional generator.

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There were very few catalytic converters, Your Honor, that solved the fixed speed problem.

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I mean, this really was a finite universe of prior art

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on any engine at all that solved this fixed speed problem.

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And again, Phipps, excuse me, the expert never said, the reason I wouldn't do this is because water would get in the way with the way Phipps does it.

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What he says is, Phipps is wrong, it's just plain wrong.

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It would never work on a land engine much less to reduce carbon monoxide.

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And I also, I do want to get to secondary considerations as well.

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You're eating into your rebuttal time if you do.

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Understood, Your Honor.

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And so let me just say that the secondary considerations fail on the single ground of lack of nexus.

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There is no nexus to what was claimed to be inventive about this.

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Actually, I should say what was inventive over

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The prior art, all that was inventive over the prior art was the addition of water.

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And I do also want to underscore unwillingness that whatever standard the Supreme Court ends up adopting, it will almost certainly have a knowledge element.

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And there was no evidence of any knowledge on the part of Kohler that these patents even existed when it infringed.

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Thank you, Your Honors.

[00:13:54] Speaker 02:
David Simons on behalf of WEBIP.

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I want to start with Mr. Rosencrantz's suggestion that FIPS was addressed to or solving the same problem.

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That's simply not the case.

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FIPS was an industrial land generator that was using something called exhaust gas recirculation.

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That's an emission strategy where you take some of the exhaust and stick it back into the engine and burn it again.

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Why do you do that?

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It burns exhaust more completely.

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It might reduce some small elements.

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It's one of the different addition strategies that's sometimes used.

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And the problem that Sips was trying to solve was how to better control this exhaust gas recirculation.

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So he came up with the idea of this reverse control scheme, where instead of when you push down on an accelerator, putting air into the engine and having the computer calculate the fuel, the reverse, when you push down on an accelerator,

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Fuel goes in, and then the computer calculates the air.

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And the idea being if you reverse it and you control the air inputs of the engine, you can better jive with this exhaust gas recirculation where you're also putting in some air.

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So that's the problem Phipps was dealing with.

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He was not dealing with the marine carbon monoxide poisoning problem at all.

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Completely different type of problem.

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Wasn't even marine.

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And there was no suggestion that you could use Phipps for marine.

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And there was extensive evidence at trial from Mr. Amber that you would not have considered adapting FIPS for a marine engine.

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He talked about, as Judge Chen was already asking about, that FIPS probably wouldn't even work for an intended purpose, but that's especially true for marine.

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And that's something we point out at page 24 of our brief, Mr. Amber's testimony at A15197.

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where he talks about how in the marine environment, you need to have these compact engines, and you need to have this very tight control.

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And FIFTH's scheme, one of still on the out would look at it and immediately know it's not suitable for that type of engine.

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And why is that, though?

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Well, because the FIFTH scheme would not adequately control the engine.

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He said it just wouldn't work to even run an engine, let alone give you the kind of tight control if you're trying to do secondary emissions control, which was the problem that the inventor was dealing with here, which is

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the carbon monoxide particularly, but emissions generally.

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And in FIPS, with this reverse scheme that's designed to improve the exhaust gas recirculation, you won't get the kind of tight control you'd need for any kind of emissions control other than the exhaust gas recirculation.

[00:16:21] Speaker 01:
There's nothing precluding using the exhaust gas recirculation feature in a marine environment, right?

[00:16:27] Speaker 01:
It's conceivable marine.

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They point in their reply.

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Southwest research.

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seems to indicate that that's a possibility.

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Yes, it is a possibility.

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In Southwest Research Institute, that was a prior prototype that was being tested on a lab bench.

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But it's also noted in that same report that a lot more testing needs to be done in the water environment, in the actual real world environment.

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That was a lab prototype test.

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The problem here was the deficiency in what their expert said.

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He completely ignored what you would have to do to FIPS to make it actually conceivably work in a marine environment.

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He just said,

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All right, if you were to start with fifths and someone were to tell you, I want this to be marinized, you would know to add a water jacket around the manifold and to inject some liquid coolant into the exhaustion.

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You'd know to do those two conventional features, but that is not enough.

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And the in touch case that we cite in our brief talks about that.

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An expert can't simply say, if someone had told me to make this conversion, I could have done it.

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I would have known what to do.

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That's very different from a motivation to actually take FIPS and convert it to marine.

[00:17:31] Speaker 01:
But I guess the idea was there, there was a strong motivation at this particular time, given that the government was saying we need to reduce carbon monoxide emissions from these marine engines.

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And, and so therefore, um, the obvious thing to do is take existing land engine technology and see what we can do to, to marinate it.

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Right.

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Well, the land engines had not solved the carbon monoxide problem either.

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This was talked about extensively at trial.

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Cars hadn't solved it at this point either.

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So one of Skittle and the Art wouldn't think, OK, there's a solution out there for this carbon monoxide problem.

[00:18:05] Speaker 02:
I just have to go look at cars or land generators and import things.

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That wasn't the case at all.

[00:18:09] Speaker 02:
Mr. Amber talked about that in rebuttal.

[00:18:11] Speaker 01:
But using a catalyst would be a conventional thing to do.

[00:18:15] Speaker 02:
Well, if you'd asked someone in 2002, someone at Skittle in the field, if you put a catalyst

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into one of these marine engines, would you reduce carbon monoxide?

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His answer or her answer would be, yeah, but not by the meaningful amount you need to have any impact on safety.

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And I think an analogy probably will explain this point more clearly.

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If you were to climb to the top of the Empire State Building and jump off, you're going to have a sticky ending.

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If you were to climb to the 50th floor of the Empire State Building and jump off, half as bad a fall, half as far, same result.

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Same for the 20th floor, 10th floor, third floor.

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To make that jump safe, you have to reduce the jump by more than 99%.

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The same was true for the carbon monoxide problem.

[00:18:59] Speaker 02:
The carbon monoxide output from the prior generators was tens of thousands of parts per million.

[00:19:05] Speaker 02:
But 1,200 parts per million is immediately dangerous to life.

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800 immediately makes you nauseous.

[00:19:11] Speaker 02:
So if you were to ask someone a skill in the art, hey, if I put a catalyst in there, am I going to solve this problem?

[00:19:16] Speaker 02:
You're going to go from the 100th floor to the 50th floor, maybe, but that's not any kind of solution.

[00:19:21] Speaker 01:
What this invention did was by putting together these different- Testimony to this really vivid account that you're making?

[00:19:29] Speaker 02:
Oh, the Empire State Building?

[00:19:30] Speaker 02:
No, our expert didn't use the Empire State Building.

[00:19:33] Speaker 02:
He talked about Fenway Park at one point, that you're reducing from the entire stadium to the players and coaches and whatnot on the field.

[00:19:41] Speaker 02:
So, a similar idea.

[00:19:42] Speaker 02:
And there was extensive testimony from Mr. Amber on the facts, you know, setting aside the analogy.

[00:19:51] Speaker 04:
I'd like you to address the knowledge requirement for willfulness, precisely what was the record evidence of knowledge.

[00:19:59] Speaker 02:
Okay.

[00:20:00] Speaker 02:
Well, there are two things to point out here.

[00:20:01] Speaker 02:
First, there was actually a judicial admission of knowledge.

[00:20:04] Speaker 04:
Even if that's right, it only gets you to 2010, right?

[00:20:08] Speaker 02:
Right.

[00:20:08] Speaker 02:
But that no longer matters because they're not appealing the amount of enhancement.

[00:20:12] Speaker 02:
So how long they knew about the patent would only matter for the amount of enhancement of damages, not the existence of willfulness.

[00:20:20] Speaker 04:
Oh, are you saying, okay, but that's interesting.

[00:20:24] Speaker 04:
So are you saying they only appealed willfulness as a binary yes or no sort of issue on appeal, or did they appeal the time period over which they could be held willful?

[00:20:35] Speaker 02:
No, they only appealed that willfulness finding was not supported.

[00:20:38] Speaker 02:
They only appealed it really on the objective standard of Seagate and his knowledge point.

[00:20:43] Speaker 02:
But they didn't appeal that the judge's enhancement of damages was wrong because he looked at too long of a period of time.

[00:20:49] Speaker 03:
You said there were two things to support the knowledge component.

[00:20:54] Speaker 03:
What was the other thing?

[00:20:55] Speaker 02:
The other thing was evidence at trial from which the jury could have had reasonably inferred knowledge going back to the issuance of the patent.

[00:21:01] Speaker 02:
And that was that we marked the product prominently with the patent number.

[00:21:05] Speaker 02:
This was a two-player market.

[00:21:07] Speaker 02:
The parties went to the same couple of trade shows every year.

[00:21:10] Speaker 02:
The idea that they never noticed that their only competitor's product has this very big patent number marking on it for all these years is hard to believe.

[00:21:18] Speaker 02:
And they presented nothing at trial that would counter that inference.

[00:21:21] Speaker 02:
They didn't call a single witness who worked at Kohler after 2008 when the patent issued.

[00:21:26] Speaker 02:
So the judge actually found in his decision that there was evidence from which the jury could infer knowledge going back before 2010, the point where they admitted knowledge.

[00:21:37] Speaker 02:
So just accepting the standard of review here on this knowledge point, there's plenty of evidence in the record to conclude knowledge all the way back to when the patent issued.

[00:21:46] Speaker 02:
But it's judicially admitted.

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for 2010 on, which is all that would matter for this appeal issue.

[00:21:51] Speaker 03:
Okay.

[00:21:52] Speaker 03:
So on the objective component, we are operating under Seagate and Bard at this moment.

[00:22:00] Speaker 03:
So given that, there certainly were a lot of arguments that were made.

[00:22:06] Speaker 03:
Ultimately, the jury did not agree on obviousness and the court supported that conclusion on Jamal, but how do you get to the

[00:22:16] Speaker 03:
the point of saying that it was completely unreasonable.

[00:22:20] Speaker 02:
Well, I think the district court was right to say it was unreasonable because it's classic hindsight reconstruction.

[00:22:25] Speaker 02:
It's we're in litigation.

[00:22:27] Speaker 02:
Here's this fifth reference that happens to disclose one of the limitations of the claim in a bizarre reverse embodiment designed for land use and designed to solve a different problem.

[00:22:36] Speaker 02:
And it's pure hindsight to go from that all the way to the invention.

[00:22:41] Speaker 02:
And the secondary considerations here were so powerful.

[00:22:44] Speaker 02:
Now, Mr. Rosencrantz briefly mentioned the nexus point, and I think on nexus, they are simply using the wrong legal standard.

[00:22:51] Speaker 02:
The way they're approaching nexus is to start with a missing claim limitation in the prior art and say you have to show nexus to that missing limitation.

[00:23:00] Speaker 02:
What the case law says is you start with the objective evidence, the praise, the commercial success, and you have to show a nexus between that body of praise and commercial success and some novel combination of the claims.

[00:23:13] Speaker 01:
Merit of the claimed invention.

[00:23:15] Speaker 02:
Merit of the claimed invention is the most common phrase.

[00:23:17] Speaker 02:
Other phrases are used, but that's the idea.

[00:23:19] Speaker 02:
The problem with Kohler's approach is if you base it off of whatever prior art reference the defendant happens to put forward, they could put forward two different prior art references and now you're proving next I instead of next us.

[00:23:31] Speaker 04:
You don't want to return to the gist or heart of the invention notion from the Pre-52 Patent Act?

[00:23:36] Speaker 02:
No, no.

[00:23:36] Speaker 02:
It's not a gist issue.

[00:23:38] Speaker 02:
What was the secondary considerations?

[00:23:40] Speaker 02:
What was the objective evidence?

[00:23:42] Speaker 02:
What was the praise to?

[00:23:43] Speaker 02:
And is that praise linked to the combination of the claims?

[00:23:47] Speaker 02:
Something about those claims that's a novel combination.

[00:23:50] Speaker 01:
Is there a case that you know of where we identified the merits of the claim convention as some combination of elements?

[00:23:59] Speaker 01:
Typically, we're zeroing in on one particular feature in a claim convention and saying, okay, this is

[00:24:07] Speaker 01:
the contribution of the inventor.

[00:24:09] Speaker 01:
Now we're going to look and see whether the secondary evidence lines up with this particular feature being the driving force.

[00:24:19] Speaker 02:
Well, that's a shortcut that's used when the invention is a particular new limitation, as opposed to a novel combination of old elements.

[00:24:26] Speaker 02:
And I can point to three cases.

[00:24:28] Speaker 02:
TransOcean 699, F3, 1340.

[00:24:32] Speaker 02:
The secondary considerations were to the efficiency that was achieved by the claim combination, not to a particular one limitation that was different from a particular reference.

[00:24:42] Speaker 02:
Spectrolitics, 649, 1336, F3, 1336, which was a patent that had to do with machinery for carving stents to carving patterns into stents.

[00:24:54] Speaker 02:
The secondary considerations were success of the stents.

[00:24:57] Speaker 02:
and that the stents had intricate patterns that you couldn't carve with the machines of prior art.

[00:25:05] Speaker 02:
So again, you're looking at the stents that were created by the machine.

[00:25:09] Speaker 02:
And then the third one, which I think is the best one, is Rambus, which is 731, F3, 1248.

[00:25:13] Speaker 02:
And I'll read a passage from it that, while objective evidence of non-obviousness lacks nexus, if it exclusively relates to a feature that was known in the prior art,

[00:25:27] Speaker 02:
The obviousness inquiry centers on whether the claimed invention as a whole would have been obvious.

[00:25:32] Speaker 02:
Rambas's objective evidence of non-obviousness was not limited to the dual-edge functionality in Engaki, that's the prior art, that transferred a single bit each half cycle.

[00:25:42] Speaker 02:
At least some of Rambas's objective evidence pertained to Rambas's overall memory architecture.

[00:25:48] Speaker 02:
So those three cases, I think, are good examples.

[00:25:50] Speaker 02:
But there's just a logical flaw with approaching it the way Kohler does, because you could present two different prior references where there's one limitation missing in reference A, a different limitation missing in reference B, and then you're suddenly... So what are you relying on, the entire claim?

[00:26:07] Speaker 02:
It's a novel combination.

[00:26:09] Speaker 02:
This is a combination claim.

[00:26:10] Speaker 02:
We don't dispute that, that every limitation in the claim is shown in some other piece of prior art somewhere.

[00:26:16] Speaker 01:
Mr. Rosencrantz points out that

[00:26:18] Speaker 01:
that during the original prosecution, your claims kept getting rejected over and over again until you finally amended the claim to add this feature about maintaining engine speed while also at the same time maintaining or monitoring the air fuel ratio.

[00:26:33] Speaker 02:
Yeah, that controller that does those two functions distinguished a number of propulsion references like Fujimoto, which is the reference that was talked about a lot at trial, but not here.

[00:26:43] Speaker 02:
Where Fujimoto... So why shouldn't we focus on that element as being... Well, he now is telling you to focus on the water element as the nexus, and that's showing exactly the problem.

[00:26:51] Speaker 02:
What distinguishes Fujimoto with the controller doing those two things simultaneously, what distinguishes FIPS is a number of elements, the water-cooled catalyst, the injection water into the exhaust.

[00:27:03] Speaker 02:
So if you're getting away from the merits of the claimed invention and into a limitation by limitation analysis of nexus,

[00:27:11] Speaker 02:
then a lot of this case law falls apart.

[00:27:13] Speaker 02:
It's the whole point of secondary consideration.

[00:27:15] Speaker 03:
Before you sit down, do you want to mention your cross appeal quickly?

[00:27:19] Speaker 02:
Yeah.

[00:27:19] Speaker 02:
I believe it's briefed thoroughly, if you are going to have any questions specifically about it.

[00:27:23] Speaker 02:
But I think the problem with the reason we have the cross appeal is the district court just didn't apply the proper standard in assessing injunction.

[00:27:31] Speaker 02:
It needs to reapply that.

[00:27:32] Speaker 03:
I think, I'm sorry, is it just a simply a question of using the magic words to say, I considered this element, this element, this element.

[00:27:39] Speaker 03:
I mean, couldn't one factor be so powerful that it supports the district court's conclusion?

[00:27:44] Speaker 02:
Absolutely.

[00:27:45] Speaker 02:
And Acumet is an example of that, but he didn't make that finding here.

[00:27:48] Speaker 02:
He didn't say, I've considered and weighed all the factors and this one overwhelms.

[00:27:52] Speaker 02:
All he said is, I find public interest favors Kohler and the other factors need not be addressed.

[00:27:58] Speaker 02:
And that's different from making a finding that he actually balanced them.

[00:28:01] Speaker 02:
And his public interest finding was founded upon a factual error that he actually conceded in the... I'm trying to understand exactly what he's conceding.

[00:28:10] Speaker 03:
So the factual error was the assumption that your client would not have the capacity to satisfy the market.

[00:28:15] Speaker 03:
Is that right?

[00:28:16] Speaker 03:
That's right.

[00:28:17] Speaker 03:
And on reconsideration, is he conceding that your client would have the capacity to satisfy the market or just more capacity than he thought?

[00:28:25] Speaker 02:
more capacity than he thought, but it leaves an open question at the very least, you know, that the whole public interest finding was based on this capacity point, this false capacity point that Kohler put in their brief.

[00:28:36] Speaker 02:
And I think the judge needs to reassess this.

[00:28:38] Speaker 02:
There really isn't great harm in a reant here because there's no injunction in place right now.

[00:28:44] Speaker 04:
So it's... Are you receiving a compulsory royalty then?

[00:28:47] Speaker 01:
Yes.

[00:28:48] Speaker 01:
Yes.

[00:28:49] Speaker 01:
Do you read the eBay Supreme Court opinion as

[00:28:53] Speaker 01:
requiring a patent owner to prove each of one of those four factors as favoring the patent owner in order to be granted injunction?

[00:29:04] Speaker 02:
No, I don't even debate that way and this court has not.

[00:29:06] Speaker 02:
Robert Bosch is a good example of that.

[00:29:09] Speaker 02:
And it's possible that's what the district court, how he was reading it, which is incorrect reading under this court's precedent.

[00:29:16] Speaker 04:
Okay.

[00:29:17] Speaker 04:
Thank you, Mr. Simon.

[00:29:18] Speaker 04:
Mr. Levencrest, a little bit of rebuttal time left.

[00:29:22] Speaker 00:
Thank you, your honor.

[00:29:23] Speaker 00:
Let me start with FIPS.

[00:29:25] Speaker 00:
FIPS itself says that the problem it is solving is not just what Mr. Simon says, but was an engine control system governing speed and emission control.

[00:29:39] Speaker 00:
And the background says it as well.

[00:29:41] Speaker 00:
Stable speed control plus emission control.

[00:29:45] Speaker 00:
There is further no evidence in the record that FIPS did not control carbon monoxide emissions.

[00:29:53] Speaker 00:
It says it did.

[00:29:54] Speaker 00:
There's no evidence that it didn't.

[00:29:56] Speaker 00:
There's just an expert who was the engineer for Westerbeek saying, well, I never would have started with it.

[00:30:03] Speaker 00:
But the question under KSR is not, would you have started with it?

[00:30:07] Speaker 00:
The question under KSR is, is it within the panoply of prior art that one would consider?

[00:30:13] Speaker 00:
And it was.

[00:30:13] Speaker 03:
Well, it's not just, is it in the panoply of prior art?

[00:30:17] Speaker 03:
Is it in the panoply of prior art?

[00:30:19] Speaker 03:
Is it something that there would have been a motivation to take that prior art with a likelihood of success in creating the combination?

[00:30:29] Speaker 03:
And there's evidence that, in fact, there was not a likelihood of failure.

[00:30:33] Speaker 00:
There is evidence only, with respect to that particular piece of it, only, I wouldn't have used this because I don't think it would have worked.

[00:30:43] Speaker 00:
Not, I wouldn't have used this because I don't think it would have worked with water.

[00:30:48] Speaker 00:
They were impeaching the prior art reference itself, which is exactly what you can't do.

[00:30:54] Speaker 00:
And the references to water were all references to

[00:30:57] Speaker 00:
Boy, you can't just take a land engine and throw it in water.

[00:31:01] Speaker 00:
It was, you know, it's got to be fire tested and water needs to stay away from the engine.

[00:31:06] Speaker 00:
Those were all problems that had been solved.

[00:31:10] Speaker 00:
And with respect to a motivation, again, the SSRI report says this is how you would do it.

[00:31:19] Speaker 00:
And then there was evidence before 2003

[00:31:22] Speaker 00:
that when people tried what the SSRI report recommended, they did indeed achieve negligible CO, and that's at page 17, 2010 to 11.

[00:31:35] Speaker 00:
One last word on knowledge, if I may.

[00:31:40] Speaker 00:
You cannot affirm a jury verdict without evidence of knowledge.

[00:31:48] Speaker 00:
There was no evidence of knowledge before the jury.

[00:31:52] Speaker 00:
WBIP did not introduce this admission before the jury about this finding out in 2010.

[00:31:58] Speaker 00:
And this court is reviewing the jury verdict.

[00:32:03] Speaker 00:
And there's no evidence that this product with the patent on it was ever shown in a show after 2008, which was when the patent was issued.

[00:32:13] Speaker 00:
There was evidence that it was shown in a show on a trial basis way back in 2003, 2004, actually.

[00:32:21] Speaker 00:
And so there's just simply no evidence, and certainly not on a clear and convincing basis, to demonstrate that this subjective element was satisfied.

[00:32:31] Speaker 00:
If there are no further questions, we respectfully request that the judgment be reversed.

[00:32:36] Speaker 04:
Thank you.

[00:32:36] Speaker 04:
I thank both counsel for their argument.

[00:32:38] Speaker 04:
The case is taken under submission.

[00:32:41] Speaker 01:
All rise.

[00:32:47] Speaker 01:
The honorable court is adjourned until tomorrow morning at 10 o'clock.

[00:32:51] Speaker 01:
A, uh...