[00:00:02] Speaker 05:
We have four cases this morning.

[00:00:06] Speaker 05:
The first one is Kanika Corporation versus JBS Hair.

[00:00:10] Speaker 05:
Council, we're ready to proceed.

[00:00:14] Speaker 05:
Please come forward.

[00:00:31] Speaker 05:
Mr. Sackstater.

[00:00:32] Speaker 03:
Yes, Your Honor.

[00:00:35] Speaker 03:
Good morning, Your Honors.

[00:00:35] Speaker 03:
Michael Saxtetter, Fenwick and West, on behalf of the appellants in this case.

[00:00:40] Speaker 03:
May it please the Court.

[00:00:42] Speaker 03:
The District Court made numerous errors in this case that mandate reversal or, in some instances, new trial.

[00:00:48] Speaker 03:
However, in the interest of time, I'd like to focus on a couple of the most important ones.

[00:00:53] Speaker 00:
Well, that's useful because the first question I was going to put to you is, if I'm not mistaken,

[00:01:00] Speaker 00:
You listed ten issues in your brief, is that correct?

[00:01:05] Speaker 00:
I believe that's correct, Your Honor.

[00:01:06] Speaker 00:
If you had to pick one or two that you really thought you could win on, are those the ones you're going to speak about this morning?

[00:01:16] Speaker 03:
I of course think I can win on all of them, Your Honor, but the ones that I'm going to speak about are the ones that I think are both the strongest and the most important.

[00:01:23] Speaker 00:
that's what we want to hear.

[00:01:26] Speaker 03:
Thank you.

[00:01:26] Speaker 03:
The first one is the district court's creation of effectively an impurities loophole in the claim construction allowing the plaintiff in this case to satisfy a numerical proportional requirement of the claim of a consisting of claim and allowing the

[00:01:46] Speaker 03:
that to be satisfied even though they're undisputably it wasn't satisfied without this impurities loophole.

[00:01:55] Speaker 05:
You say impurities loophole as if the court hadn't said impurities normally associated with a component of a claimed invention are implicitly adopted by the ordinary meaning of the components themselves.

[00:02:10] Speaker 05:
How's that a loophole?

[00:02:15] Speaker 03:
The statement that that relies on.

[00:02:17] Speaker 03:
That's the law.

[00:02:18] Speaker 03:
Well, it is, but it comes from the Conoco case of this court.

[00:02:23] Speaker 03:
And that case, the place where that statement appears, is in a section that is construing the claim term consisting of, specifically.

[00:02:32] Speaker 03:
It's in a section called, the title is, consisting of, in quotation marks.

[00:02:37] Speaker 03:
The entire discussion is about whether a particular chemical in a particular mixture

[00:02:44] Speaker 03:
is an impurity, and whether that's part of the construction.

[00:02:48] Speaker 03:
That is something different.

[00:02:50] Speaker 05:
An additional... But we concluded that when we conclude the restriction of is not absolute, the reasoning is equally applicable to a claim preceded by comprising, isn't it?

[00:03:02] Speaker 03:
I don't think so, Your Honor.

[00:03:04] Speaker 03:
The comprising claim in this case requires a particular numerical proportional requirement for the flame retardant

[00:03:12] Speaker 05:
to be in the mixture of the specific... The ordinary meaning of the term doesn't depend on the preceding transition phrase, does it?

[00:03:22] Speaker 03:
I think in this case it does, or at least the inclusion of impurities does, because this is a place where you actually have to have, and there's no dispute, that the requirement is for linear molecules to be... The evidence appeared to be that it made no difference whatsoever.

[00:03:39] Speaker 03:
I don't agree with that, Your Honor.

[00:03:41] Speaker 03:
I think that the evidence showed that it makes a huge amount of difference.

[00:03:45] Speaker 00:
Let me ask a question, just the same question, a little bit differently.

[00:03:49] Speaker 00:
All of us hope that someday we'll run into something that is truly pure.

[00:03:57] Speaker 00:
But in the real world, I know very few things that are.

[00:04:00] Speaker 00:
Wouldn't it be fair to say that just about every chemical composition necessarily has some impurities in it?

[00:04:08] Speaker 03:
And that's probably correct, Your Honor.

[00:04:10] Speaker 03:
Isn't that correct?

[00:04:11] Speaker 03:
That is probably correct, Your Honor.

[00:04:13] Speaker 03:
But those impurities shouldn't count to the 5 to 30 parts per weight.

[00:04:19] Speaker 02:
Well, wait a minute.

[00:04:19] Speaker 02:
Now you're arguing your infringement claim, though.

[00:04:22] Speaker 02:
Are you agreeing that the construction of this compound we're talking about doesn't require to be pure or substantially pure?

[00:04:33] Speaker 03:
I don't think the claim says anything about impurities.

[00:04:36] Speaker 03:
I don't think anything in the intrinsic record says anything about impurities.

[00:04:40] Speaker 02:
So if it doesn't, then wouldn't the normal rule, since almost every chemical compound presumably contains some type of impurities, that be included unless it's said 100% pure or substantially pure or the like?

[00:04:56] Speaker 00:
And wouldn't one of ordinary skill know exactly that concept?

[00:05:02] Speaker 03:
that's the case but the claim requires a particular proportion of linear molecules and it's fine if there are other molecules that are branched as long as you can satisfy that threshold.

[00:05:14] Speaker 02:
That's not a claim construction argument, that's your infringement argument about whether there are enough linear molecules as opposed to the branched molecules and on that isn't there differing expert testimony on which the jury could have based its verdict?

[00:05:30] Speaker 03:
I think it's both

[00:05:32] Speaker 03:
Your Honor, I think it is a claim construction argument because I don't think that for this kind of limitation in a consisting of claim where you have to get up to a certain point that I don't think that it provides a definite claim.

[00:05:48] Speaker 05:
Do you agree that the jury could have and apparently did believe Dr. Jacobs' explanation that

[00:05:57] Speaker 05:
while bromated epoxy flame retardant polymers with zero branches could hypothetically be made, doing so confers no advantage to justify the extra cost and effort.

[00:06:08] Speaker 03:
I don't agree with that.

[00:06:09] Speaker 05:
You don't think they could believe that?

[00:06:11] Speaker 03:
I think that the testimony was that, from both experts, was that if a

[00:06:17] Speaker 03:
thing that is called an impurity was intentionally induced and changes the properties of the chemical of the composition, then it does not constitute an impurity.

[00:06:29] Speaker 03:
Now that, again, is sort of an argument under the construction that includes the impurities.

[00:06:35] Speaker 03:
But again, I don't think that Conoco was saying that impurity should be included at all in

[00:06:43] Speaker 03:
this type of claim limitation where you have a specific number that you have to reach and that number has to be linear molecules.

[00:06:50] Speaker 03:
You can't say that some of them are just linear enough.

[00:06:54] Speaker 03:
The evidence showed that a linear molecule is defined as being not branched.

[00:06:59] Speaker 03:
This is a situation where

[00:07:04] Speaker 03:
the term is defined by its opposite.

[00:07:08] Speaker 03:
The opposite is branch.

[00:07:09] Speaker 03:
So if you have a branch molecule, it can't possibly be a linear molecule.

[00:07:13] Speaker 03:
And so you can't say that branching on a linear molecule is an impurity in that molecule.

[00:07:20] Speaker 03:
Now, there may be extra molecules that have different formats.

[00:07:23] Speaker 02:
This sounds all like an argument against their expert testimony, and that their expert testimony is wrong.

[00:07:30] Speaker 02:
But the district court didn't exclude it unless you're

[00:07:33] Speaker 02:
arguing that it's completely unreliable, it seems like it can support the jury verdict.

[00:07:40] Speaker 02:
You count branching differently than their expert, right?

[00:07:46] Speaker 02:
Their expert looked at branching in a certain way and found that it was, what, like 2% to 5% at best?

[00:07:52] Speaker 02:
Your expert looked at it in a different way and said it was 70% to 80%.

[00:07:57] Speaker 03:
I think that's correct.

[00:07:59] Speaker 03:
I think that our expert looked at it correctly.

[00:08:01] Speaker 02:
Isn't that a factual question?

[00:08:01] Speaker 03:
I don't think it is a factual question.

[00:08:03] Speaker 03:
How is it not a factual question?

[00:08:04] Speaker 03:
Because the question is whether the molecule itself is branched.

[00:08:08] Speaker 03:
There can be one branch, and it can be like that.

[00:08:10] Speaker 02:
So then you're arguing that their expert's testimony should have been excluded because it doesn't properly opine on this issue.

[00:08:19] Speaker 03:
That's one possibility.

[00:08:20] Speaker 03:
Did you make that have it excluded?

[00:08:21] Speaker 03:
I don't believe that was raised.

[00:08:23] Speaker 02:
Well, then you waive that.

[00:08:25] Speaker 02:
So the expert testimony is in.

[00:08:27] Speaker 02:
And why, assuming that expert testimony is right, why doesn't that support the jury verdict on infringement?

[00:08:33] Speaker 03:
Well, what I'm trying to say is that the construction that includes impurities leads to absurd results, where you can just say, and their expert testified that he didn't know where the line was.

[00:08:46] Speaker 03:
Where is it?

[00:08:47] Speaker 03:
How much impurity do you need in order to be, or how much branching do you need for this to be an impurity?

[00:08:54] Speaker 03:
that somehow gets to count anyway toward the linear molecule requirement as opposed to... Hang on, I just want to make a record.

[00:09:03] Speaker 05:
Just for the record, when Judge Hughes said you waived that, you didn't answer him, but you raised your palms upward, which indicates to the court that you're saying, yeah.

[00:09:13] Speaker 03:
I don't believe we raised that below, Your Honor.

[00:09:17] Speaker 02:
You can continue.

[00:09:18] Speaker 03:
Okay.

[00:09:19] Speaker 03:
So what I'm trying to say is that the construction that includes impurities for this kind of numerical requirement in the consisting of claim, which is not what Conoco was about.

[00:09:28] Speaker 03:
Conoco had a statement such as your honor read, but that was referring specifically to additional materials in a consisting of claim, not a numerical requirement in a comprising claim.

[00:09:42] Speaker 03:
And I think if you have that impurities exception,

[00:09:46] Speaker 03:
then you end up with absurd results where the other side's expert can't say where the line is.

[00:09:53] Speaker 03:
It's effectively an indefinite claim.

[00:09:55] Speaker 03:
Nobody can tell.

[00:09:56] Speaker 02:
So now you're raising an argument you haven't raised at all that the claim's indefinite.

[00:09:59] Speaker 03:
I'm just saying the construction leads to results such as that.

[00:10:01] Speaker 02:
Well, you should have argued that.

[00:10:03] Speaker 02:
You may have actually had a good argument about whether this claim was indefinite or not, but it doesn't seem like you raised that.

[00:10:09] Speaker 03:
OK, that was not raised in our briefing, correct?

[00:10:11] Speaker 00:
OK, now, that sounds like

[00:10:14] Speaker 00:
the first of your statement of issues.

[00:10:17] Speaker 00:
Before you run out of time, you said you had another one.

[00:10:20] Speaker 00:
Thank you, Your Honor.

[00:10:20] Speaker 03:
What do you care about?

[00:10:21] Speaker 03:
The entire damages case of the plaintiff in this case relied on a double hearsay document that is clearly inadmissible.

[00:10:31] Speaker 03:
It's Exhibit 115.

[00:10:33] Speaker 05:
How is it not a business record?

[00:10:36] Speaker 03:
115 does not satisfy.

[00:10:38] Speaker 03:
Well, first let's look at it.

[00:10:39] Speaker 05:
The testimony was that

[00:10:41] Speaker 05:
They keep these things in the normal course.

[00:10:43] Speaker 05:
They do them, I think, every month it was, and that this is one that was made in that normal course.

[00:10:49] Speaker 05:
How is that not a business record?

[00:10:50] Speaker 03:
Made by Conica.

[00:10:51] Speaker 03:
And there are reasons to doubt that, which I will get into, but I think we have to look at the second layer of hearsay as well.

[00:10:57] Speaker 03:
Rule 805 says that each layer has to have its own justification.

[00:11:01] Speaker 00:
There is no justification.

[00:11:02] Speaker 00:
I assume you argued, or whoever handled it at the trial argued there were reasons to doubt that and argued it before the jury.

[00:11:10] Speaker 03:
correct, Your Honor, and also argued it to the court, but it was their only evidence that purported to show any importation of UNO's products in the United States at all.

[00:11:21] Speaker 03:
It was their only evidence, it was their experts' only evidence, and Conica's only evidence.

[00:11:25] Speaker 05:
And the testimony was that they had been doing the same thing for 50 years.

[00:11:30] Speaker 03:
That Conica had been doing the same thing.

[00:11:32] Speaker 03:
They relied on information from unnamed third-party sources, wig makers outside the country, importers, retailers.

[00:11:40] Speaker 05:
That's why there's a business records exception.

[00:11:43] Speaker 03:
Those are not business records, though.

[00:11:44] Speaker 03:
Those are not records at all from the outsiders.

[00:11:49] Speaker 03:
There has to be, under Rule 805, there has to be a justification.

[00:11:54] Speaker 05:
A compilation kept in the normal course of business is a business record, is it not?

[00:11:59] Speaker 03:
It is a business record for, although I think that it doesn't satisfy the exception,

[00:12:04] Speaker 03:
I hope to get to that, but it's a business record as to the first layer of hearsay.

[00:12:11] Speaker 03:
But the information it's based on came from anecdotal oral statements, out of court statements, oral, not business records of these third parties, and they were provided

[00:12:24] Speaker 03:
to allegedly to Conica.

[00:12:28] Speaker 03:
Conica's sponsoring witness admitted he doesn't know if they're true or not.

[00:12:33] Speaker 03:
He admitted that he thinks sometimes they are not true.

[00:12:37] Speaker 03:
They have to show that there is no lack of trustworthiness in both layers of hearsay.

[00:12:43] Speaker 03:
And here they admitted they are not trustworthy.

[00:12:46] Speaker 03:
And this was the only, this got before the jury.

[00:12:48] Speaker 03:
It shouldn't have.

[00:12:49] Speaker 03:
It was prejudicial.

[00:12:51] Speaker 03:
It was the only evidence that should, that purported to show anything.

[00:12:54] Speaker 05:
Have they been relying on those records internally as a business record for the last 50 years?

[00:12:59] Speaker 03:
The record that was created in Exhibit 115 was expressly and admittedly created for purposes of the litigation and no other reason.

[00:13:07] Speaker 03:
It is fishy for other reasons as well.

[00:13:10] Speaker 03:
It was not created at the end of the fiscal year as Exhibit 114 was.

[00:13:15] Speaker 03:
It was allegedly an update on 114 that was created in the middle of Conica's fiscal year, and it was created in the middle of Conica's fiscal year right before Conica's expert report.

[00:13:27] Speaker 03:
It was admitted... You've got about two minutes left.

[00:13:30] Speaker 03:
You're using up your rebuttal time.

[00:13:31] Speaker 03:
I understand.

[00:13:33] Speaker 03:
It was admitted to be prepared for the purposes of this litigation.

[00:13:36] Speaker 03:
I think the law is clear that it's not admissible.

[00:13:47] Speaker 04:
Good morning, Your Honors.

[00:13:48] Speaker 04:
Anthony Dayne, appearing for Kenneka.

[00:13:51] Speaker 04:
For the same reasons, I'll just address those two arguments unless, of course, the court has questions.

[00:13:58] Speaker 04:
If I could do them in reverse order, just because of recency as I was writing my notes, on the damages section, as Judge Solis did very well on the hearsay exception, he even noted if there are dual hearsays, each one was a business record and they sufficed.

[00:14:19] Speaker 04:
The argument is not correct that this was the only evidence.

[00:14:23] Speaker 04:
In fact, these business records were corroborated at trial in impeachment and in direct evidence that UNO did the same thing.

[00:14:34] Speaker 04:
That's how they kept their business records.

[00:14:36] Speaker 04:
They talked to the Whig manufacturers, they talked to the importers, and they talked to the retailers.

[00:14:41] Speaker 04:
That's how you gather your information.

[00:14:44] Speaker 04:
And in doing so, it turned out at trial that the estimates of our expert were even slightly lower than the business plans of UNO that showed their estimates.

[00:14:55] Speaker 04:
So that was a corroboration internally, even beyond getting through the hearsay exception.

[00:15:02] Speaker 04:
So these were records that were kept in the ordinary course for 50 years.

[00:15:07] Speaker 04:
What counsel was referring to is because the expert's report and deposition had been taken

[00:15:14] Speaker 04:
well before trial, all 115 was an update.

[00:15:18] Speaker 04:
Using the same information was not created.

[00:15:22] Speaker 04:
It was really just a summary of the compilation.

[00:15:25] Speaker 04:
Getting back to the impurity issue.

[00:15:28] Speaker 04:
Well, of course it was created.

[00:15:30] Speaker 04:
The question is, was it outside the normal course?

[00:15:33] Speaker 04:
That's correct, your honor.

[00:15:35] Speaker 04:
And yes, I suppose you could make the argument that everything an expert does then is created.

[00:15:43] Speaker 04:
With respect to the fire retardant, the testimony from both sides was that the patent identifies specific flame retardants.

[00:15:54] Speaker 04:
The flame retardants are manufactured with, as both experts recognize, some form of branching.

[00:16:01] Speaker 04:
That's an impurity.

[00:16:04] Speaker 04:
Your Honor, when you mentioned that in a perfect world we would have purity, I can recall so many cases where

[00:16:11] Speaker 04:
the statements are you know something is around well substantially around because the earth is round but obviously not completely so there's no perfection but the key was is is is that your honor also said that uh... with respect to the uh... impurities they had no discerning council i was accepting from that judges

[00:16:38] Speaker 04:
You know, no absolutes except, of course, judges.

[00:16:42] Speaker 04:
I want to make sure you understand that.

[00:16:45] Speaker 04:
And absolutely.

[00:16:47] Speaker 04:
Having done this for 35 years, I can think of no better exception.

[00:16:52] Speaker 01:
But with respect to the impurities... We see some pharma cases where we actually do see language describing the drug composition as pure or substantially pure.

[00:17:03] Speaker 01:
Do you think that would have made any difference here to the infringement claim if that would have been put in?

[00:17:07] Speaker 04:
If it had been put in, possibly.

[00:17:10] Speaker 04:
Possibly, Your Honor.

[00:17:12] Speaker 04:
I hadn't analyzed it in that concept.

[00:17:14] Speaker 04:
And I know those cases because there are some where it's critical that you have the purity.

[00:17:19] Speaker 04:
Here, it wasn't critical because, as Dr. Jacobs said.

[00:17:23] Speaker 02:
But let's assume that a person of ordinary skill would understand when they read this patent and the specification that it was requiring certain amounts of the non-branched composition.

[00:17:35] Speaker 04:
Correct.

[00:17:36] Speaker 02:
And so they would understand that as you have to have that amount in a pure or substantially pure form.

[00:17:43] Speaker 02:
Correct.

[00:17:43] Speaker 02:
And that you couldn't count the non-pure forms.

[00:17:46] Speaker 02:
Correct.

[00:17:48] Speaker 02:
So why isn't that basically reading a substantially pure limitation into this?

[00:17:53] Speaker 04:
Well, first of all, we don't have those facts, so it wouldn't be.

[00:17:56] Speaker 04:
But if it did, then I think your question was right to the point.

[00:18:01] Speaker 04:
It goes to infringement, because then you have what we ended up with is,

[00:18:05] Speaker 04:
a semantical statistical argument.

[00:18:08] Speaker 04:
And it just flowed like this.

[00:18:11] Speaker 04:
Our expert looked at the number of monomers and said, if you had 10 polymers with 50 monomers each, you have 500 monomers.

[00:18:20] Speaker 04:
If just 10 of those are branched, which is what he was finding, you have a 2% branching.

[00:18:27] Speaker 04:
Their expert said, if there's a single branch on any polymer, you throw it all out.

[00:18:31] Speaker 04:
So he ended up with the 80% to 100%

[00:18:35] Speaker 04:
discount, which means they're all branch.

[00:18:38] Speaker 04:
So we actually, it was very humorous.

[00:18:40] Speaker 02:
Is there any discussion in the specification about how you would determine purity, or was there any testimony how one of ordinary skill in the art would determine what is pure or not?

[00:18:51] Speaker 04:
There was not, and that's why the testimony at trial was.

[00:18:55] Speaker 04:
That when you read it with this specific flame retardant, knowing as a person of ordinary skill in the art would, that when you get it from a manufacturer,

[00:19:05] Speaker 04:
it's going to have some of those impurities, then you know that that's inherent in it.

[00:19:10] Speaker 04:
That's why we have the testimony from both sides.

[00:19:12] Speaker 04:
And there was agreement.

[00:19:14] Speaker 04:
Well, the testimony also was that it made no difference.

[00:19:16] Speaker 04:
Exactly.

[00:19:17] Speaker 04:
No discernible effect.

[00:19:19] Speaker 04:
And one of the troubling things is the council was ignoring the testimony even of their own expert.

[00:19:26] Speaker 04:
They raised this book called Flory, which they said was the Bible.

[00:19:30] Speaker 04:
And Flory itself is

[00:19:32] Speaker 04:
You should not, when you're dealing with this linear or nonlinear, when you have this branching that's a set of small significance, that you should not have a harsh application of the definition trying to require everything to be purely linear.

[00:19:48] Speaker 04:
Otherwise, it said, and this is perfect as to what the court said, it would relegate the term linear polymer to the status of an ideal which may be approached but never realized.

[00:20:01] Speaker 04:
And so that's the problem.

[00:20:02] Speaker 04:
And in fact, in that case, it said you may have somewhere it's perhaps one unit in 1,000.

[00:20:09] Speaker 04:
In this case, our expert was saying you might have two units in 1,000.

[00:20:12] Speaker 04:
But when you say about one unit, our expert was closer to the Bible.

[00:20:17] Speaker 04:
Their expert was trying to argue it had to be one in billions.

[00:20:20] Speaker 04:
But that's not what their Bible said.

[00:20:22] Speaker 04:
And Dr. Ellison himself, when asked, he said he asked for perfection, 100%.

[00:20:29] Speaker 04:
And then I asked him the question, OK, Flory, the Bible,

[00:20:33] Speaker 04:
It's different, though.

[00:20:34] Speaker 04:
Flory acknowledges that there are going to be some instances where branching has no discernible effect on the properties.

[00:20:41] Speaker 04:
Cite when you read, cite the record.

[00:20:43] Speaker 04:
I will.

[00:20:43] Speaker 04:
This is JA 10761.

[00:20:46] Speaker 04:
No discernible effect on the properties of the polymer.

[00:20:50] Speaker 04:
Yes or no?

[00:20:51] Speaker 04:
And his answer was yes.

[00:20:54] Speaker 04:
So in the end, isn't that at worst expert to expert?

[00:20:59] Speaker 04:
And that's what the jury's for.

[00:21:01] Speaker 00:
Let me take you back just for a minute to the impurities issue.

[00:21:05] Speaker 00:
Sure.

[00:21:08] Speaker 00:
We've all agreed that some impurities, it's appropriate to recognize the existence of some impurities.

[00:21:15] Speaker 00:
Correct.

[00:21:16] Speaker 00:
But as I read the record, your expert and their expert agreed on one particular

[00:21:25] Speaker 00:
explanation or definition of what impurities should, that phrase, should be.

[00:21:31] Speaker 00:
Is that not correct?

[00:21:34] Speaker 04:
I'll follow.

[00:21:35] Speaker 04:
It's not, I don't want to say you're not entirely correct.

[00:21:37] Speaker 04:
I want to say that they picked spots instead of the total, but let's go with that.

[00:21:42] Speaker 04:
I'll follow that.

[00:21:42] Speaker 04:
Let's go with that.

[00:21:44] Speaker 00:
Did you try the case?

[00:21:45] Speaker 00:
I did.

[00:21:47] Speaker 00:
Good.

[00:21:47] Speaker 00:
Why didn't the trial judge adopt the party's agreed definition?

[00:21:52] Speaker 00:
The trial judge came up with a

[00:21:55] Speaker 00:
different definition.

[00:21:56] Speaker 00:
Now, it can be argued there's no significant difference, but I'm not sure that's true.

[00:22:02] Speaker 00:
But why didn't the trial judge simply adopt the party's agreed definition?

[00:22:07] Speaker 04:
The court took, and Judge Leach was very particular about this, he analyzed these things at length.

[00:22:14] Speaker 04:
He analyzed it, he saw, he looked at the entire record, not these parsing out, you know, one statement here, one statement there.

[00:22:22] Speaker 04:
And he came to what he believed was the most appropriate definition under the law.

[00:22:27] Speaker 04:
And if you look at Flory, if you look at the cases, I think he's correct on that.

[00:22:32] Speaker 04:
The key is that it should not or cannot have a discernible effect.

[00:22:36] Speaker 04:
I think in his mind, he may have been looking ahead to what Judge Hughes was saying is

[00:22:41] Speaker 04:
This may relate more to how you're going to argue infringement than what is an accurate definition.

[00:22:47] Speaker 00:
Well, the parties agreed on a definition that included the notion of no discernible effect, isn't that right?

[00:22:53] Speaker 00:
Correct.

[00:22:54] Speaker 00:
But the trial judge did not include that in his definition.

[00:22:57] Speaker 00:
The trial judge's definition was, those deviations normally associated with the component of a claim by one of ordinary skill in the art.

[00:23:07] Speaker 00:
deviations normally associated with the component of a claim.

[00:23:12] Speaker 00:
That doesn't have the same limiting factor that the parties agreed to.

[00:23:17] Speaker 04:
No, first of all, I think it does in essence because he was looking at a broader scope knowing that both parties agree that if you name a specific flame retardant, the manufacturer of that flame retardant

[00:23:33] Speaker 04:
when it's manufactured, it comes with these.

[00:23:35] Speaker 04:
So he was saying, if that's in the ordinary course of what you're receiving, it's to be expected.

[00:23:41] Speaker 04:
So I believe that's why he did it the way he did.

[00:23:45] Speaker 04:
But in the end, the testimony elucidated all that for the jury.

[00:23:52] Speaker 04:
There was no argument in the end that the jury could have been confused by the judge's definition

[00:24:00] Speaker 04:
versus the actual testimony.

[00:24:01] Speaker 00:
That leads me to a related question.

[00:24:03] Speaker 00:
I went through the trial judge's extensive charge to the jury

[00:24:12] Speaker 00:
and the way the trial judge integrated his explanations of what the law is and what the application of that to the case to each of the questions put to the jury.

[00:24:25] Speaker 00:
That was pretty impressive on his part.

[00:24:27] Speaker 00:
Is that typical, or is that this particular trial judge?

[00:24:30] Speaker 04:
And it's this particular trial judge.

[00:24:32] Speaker 04:
And I will tell you, my partner and I, Mr. Taylor, try these cases.

[00:24:37] Speaker 04:
in front of judges since we said hey i think this is a great way to do it and they looked at us like we have two heads and and even in his verdict form he integrated the verdict form into the instructions i've never seen it but i will tell you if you don't know judge solis he's remarkable in terms of his own preparation and analysis he puts so much effort into this and i really think in the end when we talk to the jury of courses outside of uh...

[00:25:06] Speaker 04:
the issue here, but when we talk to the jury, they love that because it helped them understand how the instructions relate to the actual verdict charges, or the actual verdict form.

[00:25:19] Speaker 04:
So it is unique.

[00:25:20] Speaker 04:
Thank you for the clarification.

[00:25:22] Speaker 04:
Okay.

[00:25:23] Speaker 04:
Now, I, of course, would be happy to answer any other questions the court has.

[00:25:29] Speaker 04:
Okay.

[00:25:30] Speaker 04:
Thank you.

[00:25:31] Speaker 05:
Thank you, counsel.

[00:25:33] Speaker 05:
You never have to use all your time.

[00:25:35] Speaker 04:
I appreciate that.

[00:25:36] Speaker 04:
Sometimes less is more.

[00:25:38] Speaker 03:
I probably will.

[00:25:40] Speaker 03:
You have a minute and 55.

[00:25:41] Speaker 03:
Go ahead.

[00:25:41] Speaker 03:
Thank you, your honor.

[00:25:42] Speaker 03:
Quickly, the Flory reference actually states that linear molecules are exclusively bifunctional.

[00:25:49] Speaker 03:
That means it only has two connecting points on the ends.

[00:25:53] Speaker 03:
And it talks about, again, branch molecules and linear molecules being opposites.

[00:25:59] Speaker 03:
In the issue about the construction of the construction, is that all it says?

[00:26:04] Speaker 03:
It says a great deal, but I think that's the strong gist and the portion that was discussed before.

[00:26:10] Speaker 03:
It was talking about separate molecules, not separate monomers in one molecule being branched.

[00:26:15] Speaker 03:
But if there are other molecules that are nonlinear, then those are, you know, you can't have all the molecules not be branched.

[00:26:23] Speaker 03:
And that's what it was talking about, not talking about having one monomer or two monomers or three monomers on one molecule be branched and say that's an impurity.

[00:26:34] Speaker 03:
On the issue of the construction of the construction, as you said, the experts did agree on a separate definition.

[00:26:42] Speaker 03:
Under that definition, I think there's no way that there can be infringement because there was unrebutted evidence that... Did you try the case?

[00:26:49] Speaker 00:
I did not.

[00:26:50] Speaker 00:
I got that impression.

[00:26:51] Speaker 00:
Okay, so you can't add anything to why the judge went off on... I don't think anyone's inside the judge's head, but I'm certain.

[00:26:58] Speaker 03:
Okay.

[00:27:00] Speaker 03:
On the Exhibit 115 issue again,

[00:27:05] Speaker 03:
The question of whether, and this is what the judge relied on, was that 115 was an update of 114.

[00:27:12] Speaker 03:
The only portion of 114 that was allegedly updated were going completely from estimated numbers to actual numbers.

[00:27:20] Speaker 03:
There was no update of numbers that existed.

[00:27:24] Speaker 03:
There were no, in spite of the testimony that there were travel reports that this was based on, they were never produced, in spite of the fact that they are saying that this is sort of a regular course of business,

[00:27:34] Speaker 03:
There is no intervening document between 2010 and 2012.

[00:27:39] Speaker 03:
Just suddenly this new one comes up in 2012 that was created for the expert to rely on.

[00:27:45] Speaker 03:
Your time's expired.

[00:27:46] Speaker 03:
Thank you.