[00:00:13] Speaker 05: Okay, the next case before the court is Wang versus Marklin Group, Inc. [00:00:28] Speaker 05: This is an appeal from the United States District Court for the District of Colorado. [00:00:48] Speaker 05: Mr. Bradford, you want to reserve only two minutes for rebuttal, is that correct? [00:00:52] Speaker 00: That's correct. [00:00:54] Speaker 05: Okay, we may begin. [00:00:55] Speaker 00: May it please the court? [00:01:13] Speaker 00: Good morning, Your Honors. [00:01:15] Speaker 00: My name is Aaron Bradford. [00:01:16] Speaker 00: I'm here on behalf of Mr. Wong and Big Time Automotive Parts. [00:01:20] Speaker 00: With me is Ms. [00:01:21] Speaker 00: Cindy Pham and Mr. Jablonski on behalf of the appellee. [00:01:27] Speaker 00: Deferring claim construction and creating divergence standards on anticipation and infringement created an error-filled verdict that wasn't supported by substantial evidence at the time the verdict was entered. [00:01:44] Speaker 00: Big Time and Mr. Wong, with respect to the request of this court, reverse Judge Blackburn's denial of our motion, which is a renewed motion, for judgment as a matter of law on anticipation and infringement. [00:01:58] Speaker 05: Your primary arguments seem to relate to this jury instruction question. [00:02:01] Speaker 05: Are you saying that there was something more that the trial court, separate and apart from the jury instruction, that the trial court was supposed to do at the claim construction stage? [00:02:12] Speaker 05: I don't really understand exactly what you wanted the court to do or what you say now you wanted the court to do. [00:02:18] Speaker 00: Certainly, Your Honor. [00:02:18] Speaker 00: The instruction that was issued in this case, instruction 11, is the primary instruction that was issued by the court. [00:02:25] Speaker 00: It was issued about 30 minutes before the closing arguments were to be presented to the jury. [00:02:31] Speaker 00: During the course of the case, Marklin had presented arguments about [00:02:36] Speaker 00: Initially had asserted an affirmative defense of functionality and withdrew that or it was not presented at the time of trial. [00:02:45] Speaker 00: What became of the functionality arguments were that certain elements, certain components of the 780 patent were considered by Marklin to be primarily functional or purely functional. [00:02:58] Speaker 00: In the jury instruction phase, the jury instruction that was presented by the parties did not include the language that we have concerns about, which states any purely functional features should not be considered in determining infringement. [00:03:14] Speaker 05: All right. [00:03:14] Speaker 05: Is that an inaccurate statement? [00:03:17] Speaker 05: Purely functional? [00:03:18] Speaker 00: Is that an inaccurate statement? [00:03:20] Speaker 00: The statement itself is not an inaccurate statement [00:03:24] Speaker 00: without, but there's a fair number of things that follow that statement under this court's jurisprudence, and Ethicon, and this court's jurisprudence, and Apple, the second Apple v. Samsung case, as well as the second High Point case. [00:03:38] Speaker 00: That the purely functional features should be, the ornamental elements of the purely functional features should still be considered. [00:03:48] Speaker 00: For example. [00:03:49] Speaker 05: Isn't that what the second sentence in the jury instruction says? [00:03:52] Speaker 00: The second instruction says, you may only consider the ornamental features of the claimed design. [00:03:58] Speaker 00: Our primary consideration and concern with this instruction, particularly at the time it was presented, was the court had not entered a ruling that there were any functional features of this particular design. [00:04:10] Speaker 00: Purely functional features of this design. [00:04:13] Speaker 00: The court had actually stricken the expert in advance of trial that was being offered on functionality. [00:04:19] Speaker 00: The court had not entered a ruling at the time of claim construction, finding that any feature was purely functional. [00:04:26] Speaker 00: And during trial, there was testimony presented on these two features that Mr. Jablonski identified, that being the location of the LEDs as well as the fact that they were forward-facing. [00:04:38] Speaker 00: The problem with this instruction is it punts to the jury the question of whether or not a functional feature exists. [00:04:47] Speaker 00: That's primarily and exclusively within the jurisdiction of the district court. [00:04:52] Speaker 04: Doesn't our case law give the district court a pretty great deal of latitude in terms of what to inform the jury as to what's the proper understanding of the so-called claim and design patents? [00:05:09] Speaker 00: I disagree, Your Honor. [00:05:11] Speaker 00: I think that this court's finding an ethic on, as well as odds on and apple, [00:05:16] Speaker 00: What this panel stated in Ethicon was, we have explained, however, that there are a number of claim scope issues which may benefit from a verbal or written guidance, among them the distinction between features of the claim design that are ornamental and those that are purely functional. [00:05:35] Speaker 04: Yeah, and I understand that quote as being something more like suggestions, guidelines, not mandates. [00:05:44] Speaker 04: compelling district court to do a very specific thing under certain circumstances. [00:05:50] Speaker 00: Sir, the court in Aadzon, however, stated very clearly where a design contains both functional and non-functional elements, the scope of the claim must be construed in order to identify the non-functional features or aspects of the design as shown in the patent. [00:06:07] Speaker 04: Did Aadzon issue before our NBOK opinion in Egyptian Goddess? [00:06:12] Speaker 04: Your honor, I don't have a chronology in my head. [00:06:16] Speaker 04: So I think Egyptian goddess, which is en banc, is what controls. [00:06:20] Speaker 04: And I believe in Egyptian goddess, our full court really gave a lot of latitude to district courts to try to figure out when is it appropriate time for district courts to actually kind of jump in and come up with some type of verbal formulation [00:06:40] Speaker 04: as to the scope of a design patent or the meaning of certain aspects of a given design patent. [00:06:46] Speaker 00: And the language that I'm quoting from Odzon was cited in the Apple v. Samsung case last May, which is why I'm quoting it now is because it comes afterwards. [00:06:55] Speaker 00: It comes from, I believe, several of the members of this panel as well, that in all of these cases, there has not been a suggestion that the question of functionality and the question of plain construction should be sent to the jury. [00:07:08] Speaker 00: There was no direction given to this jury on what is a functional feature under the law of this court. [00:07:16] Speaker 00: Functionality in the minds of people that are walking the streets is very different from the definition of functionality of the box. [00:07:22] Speaker 01: Assuming that that was there, is there anything that indicates in the record that the jury relied on that error in reaching its decision? [00:07:31] Speaker 00: Your Honor, there is. [00:07:32] Speaker 00: The verdict itself was one product [00:07:38] Speaker 00: Actually, it's the same product itself. [00:07:40] Speaker 00: It's an LED strip. [00:07:42] Speaker 00: One that's marketed as the head and grill lights, which is about a 36-centimeter LED strip, was found to infringe. [00:07:52] Speaker 00: And that product was marketed as an ornamental strip that had no function. [00:07:57] Speaker 00: And actually, on the back, it said, this product should not be used when the car is in motion. [00:08:02] Speaker 00: The other product was found to not infringe. [00:08:04] Speaker 00: It's exactly the same product. [00:08:05] Speaker 00: You can look at the exhibits that we provided, exhibits 102, 103, and 104. [00:08:09] Speaker 00: Exactly the same product. [00:08:11] Speaker 00: It's just shorter. [00:08:13] Speaker 00: That product was marketed by Marklin as a daytime running light. [00:08:16] Speaker 00: And the only distinction that was drawn between that product and the patent was that the bulbs or the LEDs were bright, that they functioned, such that a non-claimed element, that being its function, was [00:08:31] Speaker 00: emphasized by more clinical trial and the jury found non-infringement. [00:08:36] Speaker 04: I'm just curious, when I'm looking at the exhibits for head and grill and the LED lights, on the back of the strip for the head and grill, it's clean, right? [00:08:47] Speaker 04: It's just black all the way through. [00:08:50] Speaker 04: But for the LED lights backing, you can see those red dots. [00:08:56] Speaker 04: The red dots, the copper dots. [00:09:01] Speaker 04: I don't know if this is what the jury hung its hat on, but at least just visually from looking at the two exhibits, you can see some distinction between [00:09:13] Speaker 04: the look and appearance of the LED lights versus the head and grill lights? [00:09:17] Speaker 00: Well, problematically, and you're correct, there are four dots that are placed where the cable can be or the strip can be cut. [00:09:23] Speaker 00: The instructions are given to the buyer that if you want to shorten the length of this, then you can cut it between those four dots, which are actually copper connectors. [00:09:33] Speaker 00: The problem with the actual order that we're appealing from is the district court judge made no factual findings as to [00:09:42] Speaker 00: why the jury or why it is in support of the verdict found that there was evidence, substantial evidence, of non-infringement given the evidence that was before it. [00:09:54] Speaker 05: I mean, that's not useful for us. [00:09:57] Speaker 05: We prefer when trial courts will seriously analyze the J-MAL and give us facts that they felt supported the substantial evidence or supported a substantial evidence finding. [00:10:08] Speaker 05: But it's not required for our review. [00:10:11] Speaker 05: We're still supposed to say, is there substantial evidence in the record that would support this jury finding? [00:10:16] Speaker 05: And we have to give all due deference to a jury determination. [00:10:20] Speaker 00: And Your Honor, you're correct. [00:10:21] Speaker 00: And the record evidence that is before this court on infringement came from Mr. Chang. [00:10:27] Speaker 00: Mr. Chang testified that a person of ordinary skill, actually just an ordinary observer, would buy these products believing that they are the design patent. [00:10:39] Speaker 00: There was no evidence put on, importantly, by Marklin, none given to this panel, of non-infringement. [00:10:45] Speaker 04: When it comes to design patent infringement, it all comes down to the pictures, right? [00:10:50] Speaker 04: You're just looking at pretty pictures and comparing them. [00:10:52] Speaker 04: And it's up to the jury to figure it out. [00:10:54] Speaker 00: It's up to the jury to figure it out. [00:10:56] Speaker 00: But in fact, there is no record evidence of non-infringement. [00:10:59] Speaker 00: It wasn't disputed at trial. [00:11:00] Speaker 00: It just wasn't. [00:11:01] Speaker 00: But the more important thing with this instruction is the fact that the judge created divergence standards [00:11:07] Speaker 00: on the question of infringement from anticipation. [00:11:10] Speaker 00: This jury instruction that we're looking at says that the functional features shall not be considered in determining infringement. [00:11:18] Speaker 00: That means that functional features are now to be considered for purposes of considering anticipation. [00:11:23] Speaker 02: How do we know that the jury just didn't look at the pictures and not follow the erroneous instruction? [00:11:30] Speaker 00: We have to assume that the jury did follow the instructions as given. [00:11:34] Speaker 00: And the instruction quite clearly limits this consideration [00:11:38] Speaker 00: functionality to the question of infringement and has now created a standard where we've now identified functional features as a jury. [00:11:45] Speaker 00: We don't know how we found them because we weren't given direction on that point, but now we must consider them for purposes of anticipation, which we know is incorrect. [00:11:52] Speaker 00: First of all, the standards set forth in MasterDOR establishes that the question of infringement and the question of anticipation are identical. [00:12:02] Speaker 00: The substantial similarity standard is the same that was set forth in GORU. [00:12:07] Speaker 00: But in this jury instruction, we now have a situation where the jury is identifying functional features, excluding them. [00:12:14] Speaker 00: They're not told that they should consider really some portion of those features once excluded. [00:12:19] Speaker 00: But what they are now doing is they're looking for functional features and considering them in the anticipation analysis, which feeds right into the argument. [00:12:27] Speaker 05: I guess I'm not sure how you get there. [00:12:30] Speaker 05: You're saying that the mere fact that he called out these two sentences in the infringement [00:12:35] Speaker 05: means that somehow the jury would not think that the same kind of analysis of the design would apply in anticipation? [00:12:44] Speaker 00: That's precisely the argument that's being made by Marklin, and it's precisely the argument that was made by the judge in denying our motion for a new trial. [00:12:52] Speaker 00: The judge said, I don't need to worry about instruction 11 because it doesn't apply to anticipation. [00:12:58] Speaker 00: And the jury found anticipation. [00:13:00] Speaker 00: So if this instruction to consider functional features for infringement [00:13:05] Speaker 00: doesn't apply to anticipation, you have to assume that the jury was going to follow this instruction. [00:13:10] Speaker 00: The jury created a verdict where it found non-infringement on one side and infringement on another side on the same product. [00:13:16] Speaker 00: I have just a short time left, and I do want to address the evidence on anticipation. [00:13:22] Speaker 05: Let me ask you, how did that verdict form come about? [00:13:25] Speaker 05: Did you guys propose that verdict form? [00:13:28] Speaker 05: That's the oddest thing I've ever seen. [00:13:29] Speaker 00: Well, I frankly can't remember back to how that verdict form was proposed, if it was proposed by the judge or by the parties. [00:13:36] Speaker 00: I don't recall. [00:13:37] Speaker 05: I didn't see any indication in the record that there was an objection to that verdict form. [00:13:42] Speaker 00: I would say there was no objection to the verdict form. [00:13:44] Speaker 00: I think the parties objected to certain claims. [00:13:46] Speaker 05: How did you not catch that that was a complete misstatement of the law? [00:13:52] Speaker 00: On the verdict form? [00:13:53] Speaker 00: Yeah. [00:13:53] Speaker 00: We did object to the form of the instructions, but as it related to the verdict form, once the objection was overruled, we didn't re-object on the verdict form. [00:14:05] Speaker 05: What's your response to your friend on the other side who says that if you want to understand why this confusing or somewhat confusing jury verdict happened, it's because the verdict form forced them to find an infringement before they were allowed to find invalidity. [00:14:20] Speaker 00: Well, in this particular jurisdiction, it's been my experience that the judge does not differentiate between those. [00:14:27] Speaker 00: They've asked the jury to rule on infringement and make a ruling or a finding on anticipation at the same time. [00:14:35] Speaker 00: I'm not sure I understand. [00:14:37] Speaker 05: That's not what the form said. [00:14:38] Speaker 05: The form said, only if you find infringement do you even consider invalidity. [00:14:43] Speaker 00: And in this case, they found infringement, so they were required to then find invalidity. [00:14:48] Speaker 00: Just very briefly on the question of anticipation, there was not substantial evidence to support anticipation when this court compares its ruling in Ethicon and in High Point Design. [00:15:02] Speaker 00: High Point involved two slippers in the prior art as well as the acclaimed slipper design. [00:15:09] Speaker 00: The differences between the prior art in that case compared to the prior art in this case [00:15:15] Speaker 00: are substantial. [00:15:17] Speaker 00: When we look at the John reference and the Lee reference, both involve a... Well, the John reference involves a clear lamellar with copper wires running through it, and the 780 patent involves a flexible attachment strip. [00:15:33] Speaker 00: The John reference specifically excludes and disclaims the use of a flexible attachment strip. [00:15:40] Speaker 00: In light of High Point [00:15:41] Speaker 00: there is no way that a reasonable jury properly instructed would have found that the JOM reference anticipates the 780 patent. [00:15:51] Speaker 04: What about the JOM flyer, the JOM product guide, which show a flexible strip with a series of forward-facing LED lights? [00:16:01] Speaker 00: If you look at the, and for good reason, the jury would not have relied upon that and the judge did not as well. [00:16:07] Speaker 00: The flyers are not... They were before the jury, weren't they? [00:16:10] Speaker 00: They were before the jury. [00:16:11] Speaker 00: But what those flyers demonstrate is at a high level similarities. [00:16:17] Speaker 00: And what this court found in High Point and Ethicon is we don't simply look at the product category, the fact that it has LEDs, the fact that it's flexible to determine anticipation. [00:16:28] Speaker 00: We get down to a lower, a much higher level of attractiveness. [00:16:31] Speaker 04: Didn't one of your witnesses testify that as long as we have a strip with a series of LEDs that's encompassed by the [00:16:41] Speaker 04: Design patent claim? [00:16:42] Speaker 00: That is incorrect. [00:16:43] Speaker 00: That was stated in a respondent's brief, but that is not the actual testimony that came from Mr. Chen. [00:16:49] Speaker 00: He testified very clearly that the design patent of the D780 limits the scope of the patent to what is claimed there, which is what is used by Marklin. [00:16:59] Speaker 00: It is not a claim by us that the patent extends to all LED strips. [00:17:05] Speaker 05: All right. [00:17:05] Speaker 05: You've used up your time, and then some. [00:17:07] Speaker 05: We'll give you one minute for your thought. [00:17:09] Speaker 00: Thank you. [00:17:13] Speaker 03: May it please the court, my name is James Jablonski. [00:17:16] Speaker 03: I represent the athlete Marklin in this case. [00:17:19] Speaker 05: Why don't we start with that last point? [00:17:21] Speaker 05: Did you misrepresent the testimony from the other side with respect to the question of how broadly the reach of the design patent is? [00:17:30] Speaker 03: The reach of the what? [00:17:31] Speaker 05: The design patent. [00:17:32] Speaker 05: You said in the red brief that, in fact, the testimony from the other side, Mr. Chen, was that anything, essentially, that was a running strip [00:17:43] Speaker 05: a flexible strip with lights would infringe this patent. [00:17:47] Speaker 03: I believe that was their position. [00:17:49] Speaker 03: Yes, although he stopped short when I asked him, how about a castle-shaped LED? [00:17:55] Speaker 03: And he said, no, he didn't think that that would be the case. [00:17:59] Speaker 03: I asked that question because the LED on my client's product was castle-shaped. [00:18:05] Speaker 03: Then Mr. Bradford, on re-examination of that witness, kind of backed him away from that testimony. [00:18:11] Speaker 03: That's what occurred. [00:18:13] Speaker 03: But the claim of Mr. Wong, the patentee, was very broad. [00:18:19] Speaker 03: One of the things that is important about this trial is that he never suggested in any way, shape or form what was ornamental about his design, other than that the LEDs were edge-mounted and forward-facing. [00:18:40] Speaker 03: And the jury understood that he did not invent that. [00:18:45] Speaker 03: This was invented by John and was on the market before Mr. Wong even claims that he invented his design. [00:18:57] Speaker 03: If I could, I'd like to turn to... How do we know John invented that? [00:19:00] Speaker 04: Is that from the supplier and the product guys? [00:19:04] Speaker 03: Yes, they had a product at this. [00:19:07] Speaker 03: European fair, which all of the industry attends, in February of, I believe it was 1998, it was a year and a half before the patent application. [00:19:24] Speaker 03: Actually it was more than that, but it was more than a year before the patent application. [00:19:29] Speaker 03: This product was on sale in Europe. [00:19:31] Speaker 04: Did the jury get to look at the actual products that were sold in Germany? [00:19:35] Speaker 04: It did. [00:19:36] Speaker 03: All we have are these pictures. [00:19:39] Speaker 03: That's true. [00:19:39] Speaker 03: I normally wouldn't bring the product to the oral argument. [00:19:43] Speaker 03: That's fine, yeah. [00:19:44] Speaker 03: The jury had the product, the jury had the flyer, and the jury had the catalog. [00:19:50] Speaker 03: I brought the catalog itself, and the jury looked at the entire catalog. [00:19:56] Speaker 03: They looked at the pages that I excerpted. [00:19:58] Speaker 03: They looked at a one-page flyer, which I've reproduced in my brief, and so on. [00:20:04] Speaker 03: They knew [00:20:06] Speaker 03: that Mr. Wong was not the inventor of this product category, this general design. [00:20:15] Speaker 04: The jury verdict doesn't inform us which prior art reference the jury ultimately relied upon in finding this design patent anticipated. [00:20:25] Speaker 03: Well, the judge said in the jury instructions, and I have them here, that he considered [00:20:34] Speaker 03: the jam flyer and the jam catalog to be prior art and he also considered the Korean reference about which relatively little has been said. [00:20:47] Speaker 03: There was a minor error because in a subsequent instruction when he told them about anticipation instruction number 16, [00:20:56] Speaker 03: that they should look at the job catalog, flyer, and the utility model. [00:21:03] Speaker 03: That is the German type of patent. [00:21:07] Speaker 05: What do you mean, minor error, if he's telling the jury to look at something they shouldn't look at? [00:21:11] Speaker 03: No, no, no, no. [00:21:12] Speaker 03: He missed one. [00:21:13] Speaker 03: He omitted one. [00:21:15] Speaker 05: Let me ask you, as I see the judge on Jamal seems to be a little nervous that perhaps his [00:21:24] Speaker 05: injection of additional sentences into an instruction that had already been agreed upon was a mistake. [00:21:29] Speaker 05: And so he says his real analysis is, well, that 11 didn't really affect 16 by way of instruction. [00:21:40] Speaker 05: And they found anticipation. [00:21:41] Speaker 05: So that's the end of the inquiry. [00:21:42] Speaker 05: But you're talking about a jury instruction that's just a few pages away from the other one. [00:21:49] Speaker 05: How can you say that the jury wasn't considering [00:21:52] Speaker 03: Well, I think I can say that with confidence, Your Honor, and I'd just like to make that argument if I could because I think that's the single most important point in this appeal. [00:22:03] Speaker 03: The instructions with respect to anticipation are 15 and 16. [00:22:09] Speaker 03: The instruction says, in considering the scope and content of this prior art, you should consider each prior art reference in its entirety. [00:22:20] Speaker 03: as a whole, including portions that would lead away from the invention in suit. [00:22:25] Speaker 03: There is no suggestion in that instruction about functionality or that any elements should be excluded. [00:22:33] Speaker 03: And in fact, my entire case was to argue to the jury that the JOM reference had a flexible attachment strip, had LEDs mounted on the edge, and the LEDs were forward-facing. [00:22:48] Speaker 03: Those were the very elements that [00:22:50] Speaker 03: I also argued were functional. [00:22:52] Speaker 03: But in arguing... That's part of my problem. [00:22:55] Speaker 05: Let's begin with the instruction on infringement and put aside the question of whether or not that affects anticipation. [00:23:06] Speaker 05: And I understand you think that all of this could be irrelevant if we just say the anticipation instruction was fine and it wasn't tainted. [00:23:14] Speaker 05: Yes. [00:23:15] Speaker 05: The problem is when you look at that instruction, it's arguably [00:23:20] Speaker 05: correct, the two lines, the two sentences, but it's also arguably misleading. [00:23:26] Speaker 05: And then you look at it in the context of your closing argument, and you invited them to be completely misled. [00:23:32] Speaker 05: You actually said in closing argument, if there's anything that serves a functional purpose, you can't even consider it. [00:23:38] Speaker 05: You have to take it out of your consideration of ornamentality. [00:23:42] Speaker 05: And that's not the law, is it? [00:23:45] Speaker 03: If it's a purely functional element, that is the law. [00:23:49] Speaker 03: If it's purely functional. [00:23:51] Speaker 05: Yes. [00:23:52] Speaker 05: If you've got a light bulb with feathers coming out. [00:23:54] Speaker 05: Yes. [00:23:54] Speaker 05: The ornamental aspect is the feathers. [00:23:57] Speaker 05: But you don't disregard the light bulb in looking at the overall design, just because it has some functionality. [00:24:04] Speaker 03: I do agree with that. [00:24:05] Speaker 03: And I never suggested to the jury that they should disregard any ornamental aspect of the forward-facing LED. [00:24:12] Speaker 03: or the edge-mounted LED. [00:24:14] Speaker 03: I never suggested that. [00:24:16] Speaker 03: It was open to counsel. [00:24:19] Speaker 05: I'm looking at your closing argument, and you said, so all right, there's all these things that were in the priorites. [00:24:25] Speaker 05: So what do these really show? [00:24:26] Speaker 05: They show forward-facing, and they're mounted near the edge. [00:24:31] Speaker 05: All right? [00:24:31] Speaker 05: And that's part of what they're claiming as part of the design, right? [00:24:35] Speaker 03: They are claiming that. [00:24:37] Speaker 05: And so you said you have to actually take those out of your consideration. [00:24:41] Speaker 03: And yet that's part of the design. [00:24:42] Speaker 03: All I meant, Your Honor, was the fact that they were forward-facing or edge-mounted was not in and of itself the ornamental aspect of it. [00:24:54] Speaker 03: Our contention was that it was functional. [00:24:56] Speaker 03: And it was. [00:24:58] Speaker 03: But I want to finish my anticipation argument if I could before I run out of time. [00:25:04] Speaker 03: In Instruction 11, Judge Blackburn said, [00:25:08] Speaker 03: Any purely functional feature should not be considered in determining infringement. [00:25:14] Speaker 03: He never said in any way, shape, or form that functional elements should not be considered in determining anticipation. [00:25:22] Speaker 03: He never said that. [00:25:24] Speaker 03: And when you look at instructions 15 and 16, the word functional does not appear in either one of those instructions. [00:25:32] Speaker 03: The Supreme Court of the United States two weeks ago [00:25:36] Speaker 03: rejected the argument that's being made here by Mr. Bradford in this criminal case. [00:25:42] Speaker 03: I know criminal cases are not cited too often in this court, but in that case, the defendants who had committed this heinous crime in Kansas had gotten an instruction that all aggravating factors during the death penalty phase of their trial had to be proven beyond a reasonable doubt. [00:26:04] Speaker 03: with respect to mitigating factors, the judge said to the jury, you can consider any mitigating factors that you want. [00:26:12] Speaker 03: That's all he said. [00:26:14] Speaker 03: On appeal, the lawyer for the defendants argued that it was implicit that the [00:26:21] Speaker 03: beyond a reasonable doubt standard applied to the mitigating factors. [00:26:26] Speaker 03: The Supreme Court rejected that. [00:26:28] Speaker 05: But the Supreme Court didn't say in that case that whenever you're looking at jury instructions, you're supposed to take each one individually and not look at them as a whole in light of the arguments presented. [00:26:39] Speaker 05: I mean, that wouldn't even make any sense. [00:26:41] Speaker 05: The Supreme Court has, over the years, many times said, you have to look at the instructions as a whole and see if they properly state the law. [00:26:50] Speaker 03: I don't dispute that. [00:26:53] Speaker 03: I don't dispute that. [00:26:55] Speaker 03: But in this case, in instruction number four, to look at all of the instructions, Judge Blackburn said to the jury, defendant contends that two features of the 780 patent, forward-facing and edge-mounted LEDs are functional, and therefore only any ornamental aspect of those features should be considered. [00:27:19] Speaker 03: In other words, this jury knew and understood that I never contended that if those LEDs were in interesting shape or the spacing was interesting or whatever it was that had an ornamental dimension that the jury could not consider that. [00:27:39] Speaker 03: In fact, I argued in my closing with respect to infringement that my client's product in terms of the appearance [00:27:49] Speaker 03: of the LED, the shape, the spacing and so on was different than the 780 patent. [00:27:55] Speaker 03: That's the reason why we got a determination of no infringement. [00:27:59] Speaker 03: Because they agreed with me that the design of my client's product was different than the 780 patent. [00:28:09] Speaker 03: This was an intelligent, capable jury who understood this simple patent. [00:28:15] Speaker 04: Your opposing counsel is saying that [00:28:17] Speaker 04: the jury instruction, even if we were to conclude is technically not legally inaccurate, nevertheless misled the jury into coming up with an inconsistent verdict where it found one product to infringe and then a very, very, very close brother product to not infringe. [00:28:44] Speaker 03: Mr. Bradford had his opportunity to raise a question about the verdict when it was delivered. [00:28:50] Speaker 04: The point is that he's trying to say that's where the prejudice lies with this faulty jury instruction, that the jury instruction compelled the jury to come up with this illogical result. [00:29:07] Speaker 03: that is pure speculation on his part, which he is under the circuit law. [00:29:12] Speaker 03: He is not entitled to do. [00:29:14] Speaker 03: He is engaging in speculation that he could have raised when Judge Blackburn read the jury verdict. [00:29:21] Speaker 03: If he thought it was inconsistent, he could have raised it with the judge. [00:29:25] Speaker 03: Judge Blackburn did not have to go to the jury and say, why did you do this? [00:29:30] Speaker 03: Judge Blackburn could have said either one of two things. [00:29:33] Speaker 03: The court perceives that. [00:29:35] Speaker 03: There's an inconsistency in the infringement finding. [00:29:39] Speaker 03: I'm going to ask you to reconsider that. [00:29:41] Speaker 03: If you don't want to change it, don't change it. [00:29:43] Speaker 03: But you have the opportunity to do that. [00:29:46] Speaker 03: Or he could have said, one of the parties contends that. [00:29:49] Speaker 03: But Mr. Bradford didn't say word one. [00:29:52] Speaker 03: And I didn't say anything, because I was completely satisfied with the verdict. [00:29:57] Speaker 03: He has waived any argument that he wants to use here to invite you to engage in speculation [00:30:06] Speaker 03: I don't know that the verdict is inconsistent. [00:30:09] Speaker 03: I can make my speculation, as Judge O'Malley suggested, but I don't know that that's the case. [00:30:18] Speaker 03: The jury may have perceived the distinction between these three products. [00:30:23] Speaker 05: You raised anticipation only as a defense, or did you have a request for a declaratory judgment of invalidity? [00:30:32] Speaker 03: It was a defense. [00:30:34] Speaker 05: Okay, so you didn't assert invalidity independently? [00:30:38] Speaker 03: Well, it was raised as an affirmative defense. [00:30:41] Speaker 03: If the plaintiff had dropped its case, I wouldn't have pursued it separately, but it was a defense to the case, yes. [00:30:52] Speaker 04: But you didn't cross-appeal the finding by the jury that one of the three products, in fact, infringes? [00:31:00] Speaker 04: I did not. [00:31:02] Speaker 03: It's a product that was discontinued. [00:31:05] Speaker 03: There were very few sales. [00:31:08] Speaker 03: It was insignificant whether the jury found infringement or not. [00:31:13] Speaker 03: And so we didn't do that. [00:31:16] Speaker 03: Let me just add that there is ample evidence to support the verdict of anticipation. [00:31:24] Speaker 03: There is substantial evidence. [00:31:26] Speaker 03: First of all, all of the jury instructions and the jury verdict [00:31:31] Speaker 03: were completely accurate. [00:31:34] Speaker 03: They were agreed to by the plaintiff in the case. [00:31:39] Speaker 05: If you look at those two sentences that he added at the last minute. [00:31:43] Speaker 03: Well, I had raised the issue of functionality. [00:31:47] Speaker 03: And I had requested that the judge make a claim construction, which included that. [00:31:55] Speaker 03: Mr. Bradford and his predecessor argued against it, saying it was premature. [00:32:00] Speaker 03: and that it was a factual issue. [00:32:03] Speaker 03: I raised it again in response to their motion for summary judgment. [00:32:07] Speaker 03: And the judge just ruled... At the time of the jury instruction. [00:32:10] Speaker 03: At the time of the trial, I will give you my sense of this. [00:32:14] Speaker 03: Judge Blackburn was uncomfortable finding the facts. [00:32:20] Speaker 03: This is not a case where he could construe the claim, you know, because it was words. [00:32:24] Speaker 03: Of course, it's a design patent. [00:32:26] Speaker 03: He hadn't been familiar with this product and he was listening to the evidence along with the jury and everybody else. [00:32:35] Speaker 03: He was uncomfortable with the idea that he was going to rule from the bench that these two elements were functional. [00:32:44] Speaker 03: So he determined that as the judge did in the Black and Decker case that I decided to use the trial judge, he said this isn't a language for me to construe and [00:32:56] Speaker 03: I'm not expert on these products. [00:32:59] Speaker 03: I'm going to submit it to the jury for consideration." [00:33:02] Speaker 03: And so he did. [00:33:04] Speaker 03: He wrote that language himself. [00:33:06] Speaker 05: Your time is up. [00:33:08] Speaker 03: Thank you. [00:33:17] Speaker 05: So this is the real heart of it. [00:33:18] Speaker 05: You've got a two-step problem. [00:33:21] Speaker 05: One is you have to convince us that that jury instruction on infringement was error. [00:33:26] Speaker 05: And then you have to convince us that that jury instruction infected all of the anticipation instructions. [00:33:33] Speaker 05: Correct. [00:33:34] Speaker 05: But if we conclude that even if it was error, the anticipation instructions standing alone were an appropriate characterization of the law, then that's the end of the inquiry, right? [00:33:45] Speaker 00: So to answer that question, yes, you are correct that we have to establish that the instruction was erroneous and that it prejudiced the result. [00:33:54] Speaker 00: And secondly, and we have independently argued that there's not substantial evidence to support the verdict, the instruction itself is erroneous because one, it does ask the jury to do what the judge's job is. [00:34:06] Speaker 05: I got that part. [00:34:06] Speaker 05: So tell me why an infected anticipation. [00:34:10] Speaker 00: An infected anticipation, as Mr. Jablonski has just argued, because it opened the door to allow the jury to consider functionality when comparing the two designs. [00:34:20] Speaker 00: The functionality of the John reference and the Lee reference [00:34:24] Speaker 00: with a 780 patent. [00:34:26] Speaker 00: The jury is presumed to have followed the instruction that identify these functional features and don't consider them for infringement. [00:34:35] Speaker 00: And the question of anticipation, you must be then considering these functional features at the time. [00:34:40] Speaker 00: And that was the exact argument that Mr. Jablonski just made here, which is from a broad design perspective. [00:34:46] Speaker 00: These are the elements. [00:34:46] Speaker 00: It's what we said in Ethicon. [00:34:48] Speaker 00: Look at what the broad design category is in a high point. [00:34:52] Speaker 00: And here, we're doing the same thing. [00:34:54] Speaker 00: They have LEDs. [00:34:55] Speaker 00: They are on the side. [00:34:57] Speaker 00: It is a flexible strip. [00:34:58] Speaker 00: But when you look at that catalog reference, the catalog reference doesn't give you the ability to actually look at the design. [00:35:04] Speaker 00: You just see it from a distance. [00:35:06] Speaker 00: Then I actually see how it's designed. [00:35:09] Speaker 04: But we do get the sense that we're looking at a flexible strip with forward-facing LED lights that are not center-mounted, but more edge-mounted. [00:35:22] Speaker 04: And those are all the basic elements of your rather elemental looking design. [00:35:28] Speaker 00: You really can't tell where the LEDs are mounted on the flyers. [00:35:32] Speaker 00: And so that's why the jury and the court turn to the actual John reference, which tells you how it is made. [00:35:37] Speaker 00: And if you look at what John tells us, it is very different. [00:35:43] Speaker 04: The John reference looks different than what could be in these actual products that were advertised. [00:35:52] Speaker 04: But the jury had those products, and then they looked at them and made the best call they could. [00:35:59] Speaker 00: And in terms of what the jury was allowed to do, they were allowed to compare functional features of the John reference with the 780 patent, and that is error. [00:36:08] Speaker 04: What would you say is Mr. Wong's contribution to the ornamental arts here? [00:36:14] Speaker 04: What is the ornamental flourish that he is [00:36:21] Speaker 04: that he has provided the world in advancing the ornamental arts here with this design patent? [00:36:27] Speaker 00: I think this court has fairly clearly established that we don't have to establish what the artistic addition is to the arts. [00:36:37] Speaker 00: What Mr. Wong has provided and Mr. Kiss and Mr. Phillips acknowledged in their testimony is moving the LEDs from the center of a flexible attachment strip to the edge [00:36:49] Speaker 00: and using forward-facing LEDs was the advancement. [00:36:53] Speaker 00: The prior art featured large chip LEDs center mount. [00:36:57] Speaker 00: The reason they were center mount was a manufacturing reason. [00:37:00] Speaker 00: Moving them to the edge weakened the strip itself and changed the manufacturing process. [00:37:07] Speaker 00: So that was the advancement over what had been offered in the past. [00:37:11] Speaker 00: And that's exactly what Mr. Kiss and Mr. Phillips testified was true. [00:37:16] Speaker 00: that that blocked a trend in the industry. [00:37:19] Speaker 05: Thank you.