[00:00:09] Speaker 03:
The next case for argument is 15-1370 MAG Aerospace Industries versus EE Aerospace.

[00:00:53] Speaker 03:
I proceed Your Honor.

[00:00:59] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:01:14] Speaker 00:
My client, Mag Aerospace, asserted three patents in this case relating to vacuum toilets, such as of the type that are used on airlines.

[00:01:22] Speaker 00:
The district court below aired at summary judgment by ignoring evidence that created fact disputes with regard to all three of the asserted patents.

[00:01:31] Speaker 00:
I'd like to start with the 054 patent.

[00:01:34] Speaker 00:
This is the patent that relates to a toilet bowl that may be toollessly removed and replaced.

[00:01:39] Speaker 00:
And the district court construed that term as without the use of any tools.

[00:01:43] Speaker 00:
On summary judgment, however, the District Court ignored two key factual disputes as to whether the bee toilets at issue could have a toollessly removable bowl.

[00:01:54] Speaker 03:
Well, you presented at claim construction the notion that you had to have use of conventional tools.

[00:02:03] Speaker 03:
And that was rejected by the district court.

[00:02:05] Speaker 03:
End of story.

[00:02:06] Speaker 03:
It could be a coin in this instance or something that was not necessarily a conventional tool.

[00:02:12] Speaker 03:
So if we accept that claim construction, where's the disputed fact that requires a rejection of summary judgment?

[00:02:20] Speaker 00:
Your Honor, on claim construction, the district court rejected our attempt to, in effect, broaden the claim to only exclude conventional mechanics tools.

[00:02:30] Speaker 00:
That is correct.

[00:02:31] Speaker 00:
But BE never argued that the specific fact at issue here, that is, a coin, was not a tool at Markman, nor asked the district judge to reach that decision.

[00:02:41] Speaker 01:
The district court, I think, may have done more than what you say.

[00:02:44] Speaker 01:
I mean, didn't the district court also say, or indeed, any tools at all?

[00:02:49] Speaker 00:
But Your Honor, the question is, what is a tool?

[00:02:51] Speaker 00:
That was the factual question left unanswered by the district court's claim construction.

[00:02:56] Speaker 00:
What is a tool?

[00:02:57] Speaker 00:
And specifically, would a coin in this context in the area of aviation maintenance be considered to be a tool?

[00:03:04] Speaker 00:
That was the question.

[00:03:04] Speaker 03:
What did you have in mind?

[00:03:05] Speaker 03:
You kind of drew up the distinction in your proposal during the Markman, which said, without the use of conventional mechanics tools.

[00:03:13] Speaker 03:
So wasn't that really what you had in mind, the distinction between

[00:03:17] Speaker 03:
whether a coin could satisfy the tool, and the district court answered that question and said no.

[00:03:22] Speaker 03:
The tool was much broader than that.

[00:03:24] Speaker 00:
Your Honor, with all due respect, I don't think the district court answered the question to say, no, a coin was not a tool as a matter of law.

[00:03:31] Speaker 00:
We were trying to advocate for a construction that would have defeated their non-infringement argument as a matter of law.

[00:03:37] Speaker 00:
Had we won it, we think we would have been able to get summary judgment on that issue.

[00:03:41] Speaker 00:
But the district judge did not construe the word tool.

[00:03:44] Speaker 00:
Indeed, its construction uses the word tool.

[00:03:47] Speaker 00:
And so that left a factual question of whether a coin in this circumstance is a tool.

[00:03:53] Speaker 00:
And that was a factual issue we presented at summary judgment.

[00:03:57] Speaker 00:
And at that point, the district judge did say, well, yes, that's what I had intended to construe the claim as, but that's not what the district judge actually did construe it as.

[00:04:07] Speaker 00:
In fact, when I highlighted that eventual issue and said that under the construction of without tools, it would be a fact dispute at the Markman hearing,

[00:04:15] Speaker 00:
This is at A 1211 through A 1212, the district judge appeared to agree with me and say that would be an issue down the road.

[00:04:22] Speaker 00:
So certainly when its construction was without the use of any tools, what is a tool in that context, in the context of this patent, is a factual dispute.

[00:04:31] Speaker 00:
is a coin a tool.

[00:04:33] Speaker 00:
Would some other item be a tool or not?

[00:04:36] Speaker 00:
And so based on the construction without the use of any tools, that's where we were.

[00:04:41] Speaker 00:
Had the district judge been asked by BE to construe the claim as only using one's hands, and the district judge had accepted that construction, then I would agree with your honor.

[00:04:52] Speaker 00:
That's the position we would find ourselves in.

[00:04:54] Speaker 00:
That's not the position we were in following claim construction.

[00:04:57] Speaker 00:
And, of course, there's abundant evidence in the record that a coin in this context is not a tool, including from our expert, Mr. Myers, at A6080 it is 81.

[00:05:08] Speaker 00:
B is on documents that say you can remove the bowl without tools.

[00:05:12] Speaker 00:
The maintenance manual would say you can use a coin.

[00:05:15] Speaker 00:
Abundant witness testimony that they're not familiar with use of a coin as a tool in the aviation context, including by Mr. Neary.

[00:05:23] Speaker 00:
And so this is, following the court's claim construction order, a factual issue.

[00:05:28] Speaker 00:
Now the other point we raised was whether, in fact, there was sufficient evidence that the bull could be manually removed.

[00:05:35] Speaker 00:
And on that point, there was evidence from Mr. Neary at A523839, where he said he definitely recalls that that was the case.

[00:05:45] Speaker 00:
And so we cited that as well.

[00:05:46] Speaker 00:
Even had the district judge entered the claim construction that he now argues he entered, there would have been evidence and should be evidence to go to a jury on that point.

[00:05:56] Speaker 00:
But since the district judge should not hold that toollessly meant only using one's hands, there's a fact dispute as to what a tool is under the construction.

[00:06:05] Speaker 00:
I'd like to, unless there are any other questions on the 054, go to the next patent, the 055.

[00:06:10] Speaker 00:
Here again, the district court ignored fact issues.

[00:06:12] Speaker 01:
What is it about a coin that would

[00:06:15] Speaker 01:
distinguish it from just a conventional tool.

[00:06:19] Speaker 01:
I mean, I went out shopping for tools this past weekend, and I was just thinking about this case while I was out there.

[00:06:27] Speaker 01:
And I was looking at all the different screwdrivers, for example.

[00:06:31] Speaker 01:
And they have different sizes, different edges.

[00:06:33] Speaker 01:
Some are as thick as a quarter.

[00:06:35] Speaker 01:
Some as a dime.

[00:06:37] Speaker 01:
But they all serve the same purpose, in that it's to insert and

[00:06:42] Speaker 01:
and to turn, to tighten or loosen a screw.

[00:06:47] Speaker 00:
Yes, and Your Honor, but this case, of course, is in the realm of aviation maintenance, where tools are much more strictly defined.

[00:06:55] Speaker 00:
The tools must be approved by the FAA.

[00:06:57] Speaker 00:
There's a listing of tools in the BE component maintenance manual, for example, that's in the record.

[00:07:03] Speaker 01:
But that wasn't part of the construction, was it?

[00:07:05] Speaker 01:
That conventional tools are limited to aviation approved tools?

[00:07:12] Speaker 00:
The construction we advocated and the district court rejected was conventional mechanics tools, and we offered evidence of aviation books.

[00:07:19] Speaker 00:
And that was essentially what we were arguing, was that it had to be a tool of the sort that an aircraft mechanic would likely be to have on his or her tool belt.

[00:07:29] Speaker 00:
The district court rejected that, again, in our mind, and I think under this court's precedent, leaving the question of what is a tool as a factual matter, as to whether any particular object other than one's hands was a tool or not.

[00:07:43] Speaker 00:
Let me briefly touch on the 055 pattern here again.

[00:07:47] Speaker 00:
There are factual issues as to the valve set and whether that is a line replaceable unit or LRU.

[00:07:53] Speaker 00:
The valve set that we pointed to is the combination in the BE toilet of the flush control unit also known as ISD and the discharge valve also known as a flush valve.

[00:08:02] Speaker 00:
They are mounted together on a single piece of plastic from the frame and

[00:08:06] Speaker 00:
that when the frame is expanded, this component may be removed.

[00:08:10] Speaker 00:
The question is whether it's an LRU, a single module targeted for easy replacement in the field.

[00:08:16] Speaker 00:
Our evidence included our expert, Mr. Myers,

[00:08:19] Speaker 00:
extensive analysis at A6021-26, A6059-68, including his review of BE documents that had language such as, at A3772, saying that modules such as flush valves are readily accessible and easily exchanged.

[00:08:36] Speaker 03:
But there was significant evidence presented by the other side that the discharge valve and the fluid clutch control unit are removed separately.

[00:08:48] Speaker 03:
So in every case we see plenty of summary judgment cases.

[00:08:51] Speaker 03:
It's rarely the case that there's evidence on one side and absolutely nothing on the other side.

[00:08:58] Speaker 03:
But it seems to me that the district court is within his realm if he looks at overwhelming, very significant evidence to establish that they are removed separately, notwithstanding he might have put on some evidence going the other way, right?

[00:09:12] Speaker 00:
Well, Your Honor, I don't think it was overwhelming versus very little.

[00:09:15] Speaker 00:
I think there was also evidence of their video where they showed actually taking this component out and replacing it within three minutes.

[00:09:21] Speaker 00:
Again, easy replacement.

[00:09:23] Speaker 00:
And the other problem with that argument is that it conflates

[00:09:26] Speaker 00:
The claim term LRU, which is a module or a component with the actual method part of the claim.

[00:09:33] Speaker 00:
In the actual method part of the claim, it's not a question of whether you have to remove and replace that specific LRU.

[00:09:40] Speaker 00:
We satisfied that element by showing evidence of bowl replacement.

[00:09:44] Speaker 00:
The question is, is this an LRU, this module of the flush valve and the flush control unit,

[00:09:49] Speaker 00:
an LRU.

[00:09:51] Speaker 00:
And certainly, while there is evidence on the other side, I acknowledge that, there are the evidence that our experts cited about it being easily exchanged and be actually showing people in a video that it could be done in three minutes.

[00:10:02] Speaker 03:
Well the district court dealt with the video, didn't they?

[00:10:03] Speaker 03:
And he said that the video didn't clearly identify the flush control unit.

[00:10:07] Speaker 00:
Well, that simply is incorrect, Your Honor.

[00:10:09] Speaker 00:
In fact, we reproduced the video in our opening brief.

[00:10:14] Speaker 00:
We reproduced the relevant part at page 29.

[00:10:16] Speaker 00:
And our expert pointed to, we added a circle to show it, but our expert pointed to the valve set.

[00:10:24] Speaker 00:
In the video, this valve set is taken out as a unit.

[00:10:27] Speaker 00:
It includes both of the components of the valve set taken out in a unit and then replaced.

[00:10:33] Speaker 00:
So the district court's observation is simply incorrect as a factual matter.

[00:10:38] Speaker 00:
And in our view it's akin to fact finding, which is not correct at summary judgment.

[00:10:43] Speaker 00:
Now I'd like to briefly then move on to the third of the three patents, the 942.

[00:10:48] Speaker 00:
And here again there are fact issues as to whether

[00:10:51] Speaker 00:
The B toilets have the claimed flange.

[00:10:54] Speaker 00:
In this case, the district judge seems to have taken the view that because he did not include the word rib within his construction, he assumed as a factual matter, he accepted B's representation,

[00:11:06] Speaker 00:
that the toilets, the outturned part on the toilet bowl was a rib.

[00:11:11] Speaker 00:
That itself was heavily disputed, and the district judge should not have credited their evidence over ours.

[00:11:16] Speaker 00:
Our experts said they're not ribs.

[00:11:19] Speaker 00:
There are, of course, ribs such as our own tend to be horizontal structures.

[00:11:22] Speaker 00:
These are vertical columns that have recessed edges, slots in them, so that the bowl can be inserted and removed from the frame.

[00:11:30] Speaker 00:
There are two outturned edges that our expert identified at A1974,

[00:11:35] Speaker 00:
And at A60, 33 to 41, and called them columns and edges, not ribs.

[00:11:40] Speaker 00:
Again, the district judge ignored that evidence in merely accepting B's side of the story that they are ribs.

[00:11:46] Speaker 00:
Even B's own expert, Dr. Chamitoff, said that they were columns at his deposition at A1990.

[00:11:53] Speaker 00:
That alone shows that there's an issue of fact here, combined with the fact that B's own expert also admitted that of the two edges in question,

[00:12:02] Speaker 00:
The top one the upper edge that we've called the second edge is in contact with the top of the support structure and transfers load That's undisputed testimony at a 52 97 to 98 So based on that issue alone the district court should not have entered summary judgment on the 942 pattern I see I'm into my rebuttal time wanted to save that and we'll hear from Thank you

[00:12:38] Speaker 02:
May it please the court.

[00:12:39] Speaker 02:
Good morning.

[00:12:42] Speaker 03:
You want to tell us how you pronounce your name first?

[00:12:45] Speaker 02:
Andre Jankuk on behalf of BE Aerospace.

[00:12:50] Speaker 02:
May it please the court.

[00:12:52] Speaker 02:
This is not a case about claim construction, as it's abundantly clear just from what we have heard right now.

[00:12:59] Speaker 02:
It's all about factual.

[00:13:04] Speaker 02:
alleged factual disputes.

[00:13:06] Speaker 03:
Yeah, but nobody ever defined the term tool.

[00:13:08] Speaker 03:
Okay.

[00:13:09] Speaker 03:
Let's start with the 054.

[00:13:11] Speaker 02:
Sure.

[00:13:11] Speaker 03:
Nobody defined tool.

[00:13:12] Speaker 03:
I mean if I could use a hair clip or a bobby pin to finagle something, would that come within the definition of tool under the claim constructor?

[00:13:22] Speaker 02:
It certainly would.

[00:13:23] Speaker 02:
And that issue was resolved at claim construction as a matter of claim construction law.

[00:13:30] Speaker 02:
So very specifically, at the claim construction hearing, the other side proposed the construction and showed at the hearing examples of tools or implements that would be outside of their definition.

[00:13:44] Speaker 02:
And one was a twig, one was a paperclip, and another one was actually a coin.

[00:13:49] Speaker 02:
How about a fingernail?

[00:13:51] Speaker 02:
That's different.

[00:13:52] Speaker 02:
Fingernail is part of the human body.

[00:13:54] Speaker 02:
But the coin issue was expressly rejected by the district judge.

[00:13:58] Speaker 01:
So specifically- What if you use a fingernail to turn a screw?

[00:14:03] Speaker 02:
That's not the question here, but that would not- The question I'm asking you is, is the fingernail a tool at that instant?

[00:14:11] Speaker 02:
If it's a natural fingernail, I would submit that potentially that is not a tool.

[00:14:17] Speaker 02:
But there is zero evidence of that actually in the case.

[00:14:21] Speaker 02:
zero credible evidence of any kind that people are using their fingernails.

[00:14:25] Speaker 02:
Specifically, let me just turn to the court's claim construction.

[00:14:28] Speaker 03:
I mean, you said it's a natural.

[00:14:30] Speaker 03:
We have fake fingernails these days, so I think you're careful to not say it necessarily has to be a natural.

[00:14:35] Speaker 03:
Wouldn't that be a jury question?

[00:14:37] Speaker 02:
I don't think it's a jury question.

[00:14:39] Speaker 02:
Let me just turn very quickly to the court's claim construction ruling at page 8A38, where the district court's first paragraph of its claim construction ruling said, the parties dispute whether the term toollessly prohibits the use of any tools or only conventional mechanics tools so that the repair made with a simple device not commonly thought of as a tool, such as a coin,

[00:15:08] Speaker 02:
could nonetheless infringe.

[00:15:11] Speaker 02:
And the court rejected the plaintiff's construction.

[00:15:17] Speaker 02:
And therefore, it's a matter of law.

[00:15:20] Speaker 03:
It's not contested.

[00:15:20] Speaker 03:
But didn't the court at some point say, as your friend pointed out, that that's a question for later on?

[00:15:26] Speaker 03:
He did not say that.

[00:15:27] Speaker 02:
He said that I am here to resolve disputes.

[00:15:31] Speaker 02:
is exactly what the judge said.

[00:15:32] Speaker 02:
And that's the dispute he resolved at claim construction, which is not disputed here.

[00:15:38] Speaker 02:
Now, even if it were a question of fact, which I don't think it is, if the claim construction record is read as it is, even if it were a question of fact, there is no dispute that a screwdriver is a tool.

[00:15:57] Speaker 02:
Admit it.

[00:15:58] Speaker 02:
Everybody agrees.

[00:16:00] Speaker 02:
Here, the coin, if it is actually used, it's used to drive screws.

[00:16:07] Speaker 02:
It is actually a screwdriver of a different shape.

[00:16:11] Speaker 02:
With all due respect, the district judge was right.

[00:16:15] Speaker 02:
We cannot impanel a federal jury to debate whether the shape of the particular screwdriver is in or is out.

[00:16:25] Speaker 02:
And as a matter of claim construction law, that was resolved in any way, in any event.

[00:16:32] Speaker 02:
On the point of the fingernail, there is absolutely no credible evidence of any kind that fingernail or just the bare hands can be used.

[00:16:43] Speaker 01:
They point.

[00:16:44] Speaker 01:
Notice the screw in one of the figures has little grooves on it.

[00:16:49] Speaker 01:
And I wonder, why can't it?

[00:16:52] Speaker 01:
What can't you reach in there with your fingers and turn it?

[00:16:55] Speaker 02:
In this particular case?

[00:16:57] Speaker 02:
So the screw head is actually recessed a little bit, and you can't get your hands in there.

[00:17:02] Speaker 01:
She couldn't turn it completely, but you could get it going.

[00:17:05] Speaker 02:
I don't know, Your Honor.

[00:17:07] Speaker 02:
The fact of the matter is nobody tried it.

[00:17:10] Speaker 02:
Their expert had access to the product the whole discovery period.

[00:17:13] Speaker 01:
Assuming you could do that, assuming you could reach in and just turn it like quarter turns,

[00:17:18] Speaker 01:
You keep on going and you're using, wouldn't you say that that's turning the screw without a tool?

[00:17:26] Speaker 02:
If you actually are doing it with your hands, potentially.

[00:17:29] Speaker 02:
But again, the district judge was right.

[00:17:32] Speaker 02:
There is no evidence of that.

[00:17:33] Speaker 02:
And they just couldn't do it on the aircraft.

[00:17:36] Speaker 02:
The mechanic who has a belt on and the screwdriver readily available and the instructions from the company is told to use a screwdriver.

[00:17:46] Speaker 02:
And again, remember, this is a toilet.

[00:17:49] Speaker 02:
Never thought I would say that in federal court, but it is.

[00:17:53] Speaker 02:
It's not clean.

[00:17:55] Speaker 02:
They're not supposed to have bare hands and no gloves.

[00:17:58] Speaker 02:
You just can't do it.

[00:18:00] Speaker 02:
You want to have some distance, and all the evidence shows that they use a screwdriver.

[00:18:09] Speaker 02:
They point to a document that says that it can be done without tools.

[00:18:15] Speaker 02:
The fact of the matter is that the record is clear.

[00:18:20] Speaker 02:
particular sentence is a typo, the very same documents indicate that, specifically say that quote.

[00:18:29] Speaker 02:
How is a typo

[00:18:31] Speaker 03:
saying news without tools.

[00:18:33] Speaker 03:
What is you think the typo was without should have been with?

[00:18:37] Speaker 02:
Without special tools.

[00:18:38] Speaker 02:
And there are hundreds of documents that correct that typo.

[00:18:41] Speaker 02:
And later in the same document, it says, quote, a person equipped with a screwdriver and no special knowledge is all that are required to change a bowl, close quote.

[00:18:54] Speaker 02:
Now, given the time, unless there are other questions on this point, let me move on to the other patents.

[00:19:03] Speaker 02:
With respect to the 055 patent, one brief point.

[00:19:10] Speaker 02:
There is actually a total lack of evidence that the flush valve

[00:19:18] Speaker 02:
and the control units are replaced together as a set in the field.

[00:19:28] Speaker 03:
Well, what about the video then?

[00:19:29] Speaker 02:
So the video is not in the field.

[00:19:32] Speaker 02:
In the video, it's a demonstration on the bench.

[00:19:35] Speaker 02:
It's actually in a conference room on a table.

[00:19:38] Speaker 02:
That is where a demonstration, a sales demonstration, basically is made to show how one can completely disassemble

[00:19:47] Speaker 02:
a toilet and reassemble it on the bench in the shop.

[00:19:51] Speaker 02:
There is no indication in that video that it can be done or should be done in particular in the field.

[00:19:57] Speaker 02:
The court's claim construction again is dispositive here.

[00:20:01] Speaker 02:
The other side proposed that it's something that could be done or can be done.

[00:20:08] Speaker 02:
The course claim construction was that it must be targeted to be done in the field, in the place where the product is installed.

[00:20:17] Speaker 02:
In this case, an aircraft, a toilet.

[00:20:21] Speaker 02:
And there is no indication that somebody can actually reach behind and completely disassemble the product.

[00:20:29] Speaker 02:
in the actual aircraft in the laboratory.

[00:20:33] Speaker 02:
So this is a case where, again, the claim construction is dispositive and there is no evidence to the contrary that it's targeted to be done in the field.

[00:20:46] Speaker 02:
Moving on to the 942 patent.

[00:20:51] Speaker 02:
Again,

[00:20:52] Speaker 02:
This is a case where the court's claim construction and the dispute below fully resolves the dispute.

[00:20:59] Speaker 02:
The other side proposed that an outturned flange can include an edge, a rim, RIM, or a rib, RIB.

[00:21:14] Speaker 02:
The district court rejected that as a matter of claim construction law and said,

[00:21:20] Speaker 02:
that the claim term is not broad enough to include a rib, R-I-B, only an edge or a rim.

[00:21:31] Speaker 02:
That ends the inquiry.

[00:21:33] Speaker 02:
Because the case here, the accused product has ribs.

[00:21:41] Speaker 02:
Here we heard this morning that they're disputing that they're not ribs, that they're actually columns.

[00:21:46] Speaker 02:
With all due respect, that is something we're hearing for the first time now.

[00:21:50] Speaker 02:
The fact is that that is just semantics.

[00:21:56] Speaker 02:
They clearly are ribs.

[00:21:57] Speaker 02:
The district court looked at the product during the claim construction hearing and again at summary judgment, saw exactly what is at issue.

[00:22:07] Speaker 02:
And it was precisely at issue that those ribs or columns

[00:22:14] Speaker 02:
were alleged to be the infringing feature.

[00:22:18] Speaker 02:
And that was discussed at the claim construction hearing as well.

[00:22:21] Speaker 02:
And that is what they believed infringed.

[00:22:26] Speaker 02:
And the district court said, look, that is a different type of a structure not encompassed within the scope of the claims as a matter of claim construction law.

[00:22:37] Speaker 02:
And the MAG is not appealing that construction

[00:22:44] Speaker 02:
in this court, and that ends the inquiry.

[00:22:47] Speaker 02:
To suggest that the end of the rib, if the rib is out, to suggest that the end of the rib, that has nothing else on it,

[00:23:03] Speaker 02:
Just the end of it is actually, within the scope of the claims, again, it's legal sophistry.

[00:23:12] Speaker 02:
Simply because they lost on claim construction, it cannot simply be that now we have the same exact dispute on as a question of fact.

[00:23:23] Speaker 03:
Why don't you move on, I'd suggest, to your cross appeal.

[00:23:27] Speaker 03:
OK, very good.

[00:23:28] Speaker 02:
A sign or a stop?

[00:23:31] Speaker 02:
Yes.

[00:23:32] Speaker 03:
Tell me, I mean, the district court seems to have applied with great detail and care the factors from Shamrock.

[00:23:41] Speaker 03:
Yes.

[00:23:41] Speaker 03:
And weighed each of them or whatever.

[00:23:43] Speaker 03:
And the standard of review, I'm sure you agree is an abuse of discretion.

[00:23:48] Speaker 03:
Where is the abuse of discretion?

[00:23:50] Speaker 02:
The district court got the law wrong.

[00:23:53] Speaker 02:
So if the district court got the law wrong, that is something that should be reversed.

[00:24:02] Speaker 02:
The district, two points on this issue.

[00:24:05] Speaker 02:
Number one.

[00:24:07] Speaker 02:
No federal circuit court has found a sign or estoppel in a case such as this one, in a case where the- You say very explicitly the district court got the law wrong.

[00:24:18] Speaker 03:
I mean, you want to point me in the opinion?

[00:24:21] Speaker 03:
Are you suggesting that there was a misstatement of what the law is in the opinion?

[00:24:26] Speaker 02:
So well, yes, I'm suggesting that there is.

[00:24:31] Speaker 02:
Tell us what it is.

[00:24:32] Speaker 02:
OK, so I was about to do that.

[00:24:33] Speaker 02:
There are two points.

[00:24:36] Speaker 02:
Let me actually begin with the second, what was going to be my second point.

[00:24:40] Speaker 02:
The court held categorically that as an inflexible rule that

[00:24:48] Speaker 02:
that using the inventor's knowledge to avoid infringement under guidance of counsel is not a relevant factor.

[00:25:02] Speaker 02:
This is an equitable doctrine.

[00:25:04] Speaker 02:
All equitable factors should be considered.

[00:25:07] Speaker 02:
And if, as the law is, the analysis is to be done in light of the infringement,

[00:25:15] Speaker 02:
The analysis should also include the opposite of that, which is evidence of a lack of infringement or intent to infringe.

[00:25:25] Speaker 02:
Here, there are opinions of counsel, and the company worked with lawyers to avoid infringement.

[00:25:33] Speaker 02:
So he got wrong.

[00:25:34] Speaker 02:
What the district court got wrong is the inflexible rule that that's absolutely irrelevant.

[00:25:40] Speaker 02:
He did not consider it.

[00:25:41] Speaker 02:
Second point, the district court should not have extended the assigner estoppel theory to a case such as this one, where the inventor is not a founder of the company, of B, has virtually no or minimal ownership, was a consultant in the beginning.

[00:26:00] Speaker 02:
He was not brought over to start

[00:26:04] Speaker 02:
The accused activity, he came in after that was decided.

[00:26:08] Speaker 03:
Is there any case that you can cite to us that says that an absolute requirement is that the inventor have been a founder or have a substantial stake in the ownership of the company?

[00:26:19] Speaker 02:
No, Your Honor.

[00:26:20] Speaker 02:
But there is no case that goes the other way and expands the doctrine to facts such as this.

[00:26:26] Speaker 02:
And I will say that as a matter of policy, a minimum, that is not what this court should do.

[00:26:34] Speaker 02:
With all, if okay with the court, I'd like to reserve the last two minutes for rebuttal on this assignerist opulation.

[00:26:41] Speaker 03:
Well, it's down to almost one minute, but we'll reserve.

[00:26:43] Speaker 03:
Thank you.

[00:26:43] Speaker 03:
Thank you.

[00:26:50] Speaker 00:
We've got four minutes remaining.

[00:26:51] Speaker 00:
Is that right?

[00:26:53] Speaker 00:
Yes.

[00:26:53] Speaker 00:
Thank you.

[00:26:54] Speaker 03:
And you want to cover both issues.

[00:26:55] Speaker 00:
I would like to, yes.

[00:26:56] Speaker 00:
Let me start, if I may, with the patents again.

[00:26:59] Speaker 00:
On the 054, first of all, these are not screws.

[00:27:03] Speaker 00:
These are shallow plastic quarter turn fasteners.

[00:27:06] Speaker 00:
All you do is pop something in there, turn it a quarter turn, and it pops out.

[00:27:09] Speaker 00:
So the screw terminology is something they've introduced in their brief before this court.

[00:27:13] Speaker 00:
They're not screws like we traditionally think of them.

[00:27:16] Speaker 00:
And as counsel's arguments just confirmed, they're arguing here, this argument that, well, a coin is really the same thing as a screwdriver because you use it for the same purpose.

[00:27:25] Speaker 00:
That's never an argument they made at claim construction before the district court.

[00:27:30] Speaker 00:
They never asked the district court to hold that a tool is a coin or that toollessly means anything other than your hands.

[00:27:37] Speaker 00:
Now they want to take the district judge's construction and say that's really what he meant and that's really what it should be as a matter of law.

[00:27:44] Speaker 00:
But it's simply a factual issue in view of their admissions that you can do it without tools.

[00:27:48] Speaker 00:
There are statements in their manuals that not only a screwdriver but a coin can be used.

[00:27:52] Speaker 00:
such as at A6078 and the district court judge's statement at A1212 where I raised this issue and said it was a factual question on infringement and he said, I'm here to resolve disputes so we'll have to resolve it as best we can and move it to a jury as quickly as you can get it.

[00:28:08] Speaker 00:
That, combined with the Markman order, is not a ruling as a matter of law.

[00:28:12] Speaker 00:
In fact, in the summary judgment order at page A16, when discussing the documents we pointed to that said, or they said, their bowl can be removed without tools, the district judge dismissed those documents and said, well, those documents just use a definition of tool that excludes coins.

[00:28:30] Speaker 00:
That's in the middle of the page on A16.

[00:28:32] Speaker 00:
And he said there's an inherent ambiguity in whether a coin is a tool.

[00:28:36] Speaker 00:
This is in the summary judgment order.

[00:28:37] Speaker 00:
Well, that's our point exactly.

[00:28:39] Speaker 00:
These BE documents show that there's a dispute of fact because they're using a definition of tool that excludes coins, just as the district judge observed.

[00:28:47] Speaker 00:
So that should be a factual issue for the jury.

[00:28:50] Speaker 00:
On the 055, just very briefly, the video that my friend discussed, it is true that was not taken in the field.

[00:28:57] Speaker 00:
But it's from a BE proposal sent to customers, and it's a training video about how you're supposed to repair, take down, and put back together this toilet in the field on the aircraft.

[00:29:08] Speaker 00:
So even though the video itself wasn't in the field, its purpose was to tell customers, here's how you disassemble and reassemble our product.

[00:29:15] Speaker 00:
And in that video, this valve set was removed and replaced as a unit.

[00:29:19] Speaker 00:
As its document said, it could be easily exchanged.

[00:29:22] Speaker 00:
And then on the 942, I just want to point out that it's simply not correct that at the claim construction hearing, I admitted that it had a rib and that therefore the only way we could prove infringement is if the district judge adopted rib.

[00:29:36] Speaker 00:
In fact, they had a model of their toilet at the Markman hearing, and I walked up to it.

[00:29:40] Speaker 00:
This is at page 45 of the claim construction hearing.

[00:29:43] Speaker 00:
I apologize, I don't have the record site, but it's at page 45.

[00:29:47] Speaker 00:
And I said, frankly, that's an outturned edge as well.

[00:29:51] Speaker 00:
I don't agree that if there's no rib, they don't infringe.

[00:29:54] Speaker 00:
So it was very clear from the beginning that we thought these columns had edges.

[00:29:59] Speaker 00:
And so for that reason as well, we think that 942 should be reversed.

[00:30:04] Speaker 00:
Just very quickly in the time I have left on a sign or a stopple, this case is not a case to make new law.

[00:30:11] Speaker 00:
The court's decision in Intel is dispositive, that if you rely on the knowledge and assistance of an inventor to design a product alleged to infringe, you're a stop, you're in privity.

[00:30:22] Speaker 00:
Here at A1522,

[00:30:24] Speaker 03:
But doesn't it make a difference that they were here trying, they were using his knowledge to try to design Iran to avoid infringement, not to infringe?

[00:30:32] Speaker 00:
It does not, Your Honor, because of Intel, again.

[00:30:34] Speaker 00:
In Intel, this court said that illicit purpose, or indeed any purpose, is irrelevant.

[00:30:40] Speaker 00:
The question is, are you using knowledge and assistance to design a product that is accused of infringement?

[00:30:45] Speaker 00:
And in fact, that policy makes sense because that encourages legitimate, good faith, successful design around efforts so that there's no infringement suit.

[00:30:54] Speaker 00:
So that's, I believe, why the court held as it did in Intel.

[00:30:57] Speaker 00:
The last point, if I may make, I see it in my last 10 seconds.

[00:31:02] Speaker 00:
We would request that if the court is inclined to reverse on any of the patent issues, that we would like to request, and also affirm on a sign or estoppel, we would request that the court direct immediate entry of judgment on that issue, as it did in Apple v. Samsung.

[00:31:16] Speaker 00:
We have some pending IPR proceedings.

[00:31:18] Speaker 00:
We believe that that ruling should apply there as well.

[00:31:20] Speaker 03:
You're asking us to vacate and remand on all the infringement issues.

[00:31:24] Speaker 03:
You're asking for a trial.

[00:31:26] Speaker 00:
On the infringement issues, yes, and we're also asking you to affirm.

[00:31:28] Speaker 00:
We would ask that your affirmance direct the district court to enter judgment in our favor on the invalidity counterclaim, along with reversing, vacating, and remanding on the infringement question.

[00:31:39] Speaker 00:
Thank you, Rhonda.

[00:31:50] Speaker 02:
The Intel case does not resolve the issue here.

[00:31:55] Speaker 02:
In the Intel case, two things about it.

[00:31:57] Speaker 02:
First of all, the illicit purpose that the court addresses there says that it's not necessary.

[00:32:02] Speaker 02:
But of course, it doesn't mean that an affirmative good faith effort under the guidance of counsel to avoid infringement is categorically rejected as a matter of law is irrelevant for the issue of privity.

[00:32:18] Speaker 02:
So Intel does not apply.

[00:32:19] Speaker 02:
And additionally, in Intel, the inventor provided personal guarantees and indemnity to the company that was found to be in privity with.

[00:32:30] Speaker 02:
Again, there is no case of the federal circuit that found privity in a situation like this.

[00:32:36] Speaker 02:
And this is not the case to expand it.

[00:32:40] Speaker 02:
If that were the linchpin, merely bringing over an employee

[00:32:47] Speaker 02:
as part of a very large, multinational, publicly traded company to work in various engineering capacities.

[00:33:02] Speaker 02:
And if the only requirement, more or less, is knowledge and assistance to work as part of a team on the accused product, if that's all that were needed, we would be hampering

[00:33:17] Speaker 02:
mobility of employment.

[00:33:19] Speaker 02:
We would particularly penalize individuals with specialized skill sets.

[00:33:26] Speaker 02:
And we would create a de facto non-compete provision.

[00:33:29] Speaker 02:
That is not what the assigner estoppel is for.

[00:33:35] Speaker 02:
And that's not what privity is meant to be.

[00:33:39] Speaker 02:
You really do need a situation where the inventor is

[00:33:45] Speaker 02:
If not the founder in such close financial proximity and interest as the company as to make the two Envelop each other.

[00:33:56] Speaker 03:
Thank you.

[00:33:57] Speaker 03:
We thank both counsel in the case is submitted.

[00:33:59] Speaker 03:
Thank you