[00:00:00] Speaker 01:
Please be seated.

[00:00:07] Speaker 01:
We have four cases on the calendar this morning.

[00:00:11] Speaker 01:
A patent case from District Court, two patent cases from the PTAB, and a veterans case that is being submitted on the briefs and therefore will not be argued.

[00:00:25] Speaker 01:
The first case is

[00:00:28] Speaker 01:
Metagraph versus Medtronics, 2015, 2019.

[00:00:32] Speaker 01:
Mr. Cahoney.

[00:00:35] Speaker 01:
Good morning, Your Honor.

[00:00:41] Speaker 01:
Please proceed.

[00:00:53] Speaker 04:
May it please the Court.

[00:00:55] Speaker 04:
This is a straightforward case.

[00:00:58] Speaker 04:
With respect to the method claims in this case, what Metronic is asking this court to do is grant summary judgment in its favor on a legal standard that did not exist when the district court rendered its decision.

[00:01:14] Speaker 03:
Well, the question is whether there is anything to do on remand if we were to send it back to apply the

[00:01:25] Speaker 03:
whatever the number is, Akamai 5, Akamai 4, August the most recent debunk.

[00:01:30] Speaker 03:
What is there to do?

[00:01:32] Speaker 04:
Well, for one, the plaintiff mid-graph would like to be able to prepare its evidence and present its evidence in a way consistent with the new legal standard.

[00:01:45] Speaker 03:
Don't you think you should have pointed in your brief here to the facts that you think you can establish to meet the

[00:01:54] Speaker 03:
more recent statement?

[00:01:55] Speaker 04:
We have, Your Honor.

[00:01:57] Speaker 03:
What are those facts?

[00:02:01] Speaker 04:
I'd like to direct the Court's attention to the gray book, page 14, where we detail, for MedGraph details.

[00:02:15] Speaker 03:
Tell me what they are.

[00:02:17] Speaker 03:
I mean, Akamai 5, is that what we're going to call it?

[00:02:20] Speaker 03:
Yes, Akamai 5.

[00:02:21] Speaker 03:
So Akamai 5 says,

[00:02:23] Speaker 03:
One way to get attribution is to show that patient steps here, those are the ones we're talking about, that their performance was a condition of their participating in CareLink.

[00:02:41] Speaker 03:
And I don't see that you can show that.

[00:02:46] Speaker 03:
So what can you show?

[00:02:49] Speaker 04:
My understanding, Your Honor,

[00:02:51] Speaker 04:
of the standard under Occamite 5, the controlling standard.

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The new governing law is that an alleged infringer conditions participation in an activity or receipt of a benefit upon performance of a step or steps of a patented method and establishes the manner

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or timing of that performance.

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And all Accomy5 says is that's one way of doing it.

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There possibly could be others.

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But just on that one, can you meet that standard?

[00:03:20] Speaker 04:
Absolutely, Your Honor.

[00:03:21] Speaker 03:
How is that?

[00:03:22] Speaker 03:
I thought that the patients could use CareLink with, for example, the continuous monitoring system, which therefore wouldn't meet it and also not download the material over the syncing system, but actually turn it over.

[00:03:37] Speaker 04:
That is one way that the CareLink system can be used.

[00:03:40] Speaker 03:
Right.

[00:03:42] Speaker 03:
So the provision of the CareLink system is not conditioned on the patient's performance of the claim steps.

[00:03:50] Speaker 04:
Well, the optimal benefit of the CareLink system, or at least the advertised and promoted benefit of the CareLink system, and as MedGraph's expert, Dr. Bergeron, testified, if you follow the steps of the CareLink system where the patient

[00:04:06] Speaker 04:
uploads his or her data, medical data, onto the website.

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And this data is transmitted to a central server in Minneapolis.

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And then the physician, who has been provided software, downloads it.

[00:04:20] Speaker 03:
I just want to focus on, this has several parts.

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I don't see how

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you have identified for us any evidence that the patient's use of the CareLink system is conditioned on their performing the patient steps of the claim.

[00:04:43] Speaker 03:
That's not the end of the inquiry, but I guess I wanted to do that first.

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And now what you're answering is, well, they can or they can't use, but that's not conditioning.

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Well, in order to enjoy the optimal benefit of the CareLink system,

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they must transmit this data over the system.

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And Metronik controls the timing of it, the manner of it, provides the software for it, provides the software to the physicians.

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So by providing the passwords and access to the server and providing the software and setting up the whole system for patients to upload their medical relevant data and for physicians or healthcare providers

[00:05:28] Speaker 04:
to download that data in the form of charts and graphs.

[00:05:31] Speaker 01:
And didn't the district court find that MedGraph had not demonstrated that any entity or entities, either singly or in combination with each other, had performed all of the steps?

[00:05:46] Speaker 01:
So if it goes back, how is it going to be different?

[00:05:50] Speaker 04:
Your Honor, the district court only found, as we briefed in our papers, only found that

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under Akamai four, three and four, that no entity had practiced all the steps.

[00:06:04] Speaker 04:
To be very clear.

[00:06:05] Speaker 01:
But this says entity or entities, either in combination or singly.

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But under Akamai four, under Akamai three and four, the court did not inquire into whether, the court did not inquire into, it stopped its analysis.

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The district court stopped its analysis once it decided

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that multiple parties were participating in the activity, did not go beyond that.

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If you read the court's opinion very carefully, the district court stopped its analysis.

[00:06:35] Speaker 04:
It simply said that based on the law set on Al-Qamayah 3 and 4, more than one party is carrying out the steps, and Maygraf admits to that.

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And it cites to the expert, Dr. Bergeron, that Maygraf admits to that fact, but does not make any finding with respect to the new law

[00:06:56] Speaker 00:
Which is an optimize five council is your case that the district court didn't make the necessary analysis or is your case that there are more things that the district court needs to consider than are in the record before us.

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In other words, why can't we make that analysis?

[00:07:19] Speaker 00:
You're asking us to vacate and remand.

[00:07:22] Speaker 04:
That's correct.

[00:07:22] Speaker 04:
Your honor.

[00:07:23] Speaker 00:
Why can't we just look at it and say, on the record before us, the outcome will be the same under four, Akamai four or Akamai five.

[00:07:33] Speaker 00:
So the efficiency says we'll decide it.

[00:07:36] Speaker 04:
Because the details that Judge Taranto has pointed out, the details of the meeting this new standard, how it's divided between the different parties,

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has not been laid out in the way that we would like to lay it out.

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And we could, we can lay it out if we know what the legal standard is.

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I mean, even the declaration of the expert and what evidence the expert looked into.

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And even in our discovery, we would have perhaps investigate further nuances that are particularly relevant to the new standard.

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We have a standard now, the district court simply went to step one, which is very appropriate and said multiple parties are doing this.

[00:08:19] Speaker 04:
End of story, under Akamai 3 and 4, you don't have a case.

[00:08:24] Speaker 03:
And we agree to that.

[00:08:26] Speaker 03:
Can I focus you on the piece I was hoping to get to, because I don't actually see how you get anywhere near the conditions participation piece of Akamai?

[00:08:38] Speaker 03:
Immediately after that piece of Akamai 5, there's an extremely interesting CF site to the Grokster case and a parenthetical that

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says vicarious liability can be established by showing that you profited from the other's activity and had a right and ability to control it.

[00:09:01] Speaker 03:
Now I assume that you can make just for purposes of this question that you can make out a case that Medtronic profited from the performance by patients of the patient steps.

[00:09:15] Speaker 04:
Yes.

[00:09:16] Speaker 03:
In particular, presumably they sell more insulin pumps when the insulin pumps become more useful.

[00:09:25] Speaker 03:
That's correct.

[00:09:26] Speaker 03:
What about the ability and right to control how the patients use the thing, measure the information, send the information, record the information?

[00:09:42] Speaker 03:
Where is there any suggestion

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of a possibility that Medtronic has a right or ability to control that.

[00:09:52] Speaker 04:
One of our claims in this case is inducement.

[00:09:54] Speaker 04:
Simply by, if we can prove that they induce the using, they induce the practicing of these steps, and we submit, Your Honor, Your Honors, that they have... Now you're going back to the last en banc.

[00:10:09] Speaker 03:
no inducement without direct infringement.

[00:10:12] Speaker 03:
So you've got to get Medtronic held liable for direct infringement by attributing to Medtronic all of the patient steps.

[00:10:19] Speaker 04:
That's correct.

[00:10:20] Speaker 04:
And they're inducing those steps to happen.

[00:10:23] Speaker 04:
So they're encouraging, they're providing incentive and encouragement by advertising, by marketing.

[00:10:28] Speaker 03:
Can you talk in the language that this court used following the Supreme Court in Grokster of

[00:10:35] Speaker 03:
ability and right to control here the patients in the performance of the patient staff?

[00:10:43] Speaker 04:
Yes, Metronic provides the software, provides the entire system, the password, the software, the web site, that's the interface between the patient and Metronic.

[00:10:54] Speaker 04:
And by doing so, it controls how the system is going to be used, when the system is going to be used, it makes updates, it provides information,

[00:11:03] Speaker 04:
It's basically in control of the entire system and process.

[00:11:07] Speaker 04:
And it, you know, when it wants to modify or encourage certain activities, and in this case, the uploading, it advertises and promotes, it says, in fact, it specifically cites the literature.

[00:11:21] Speaker 04:
I mean, studies that if you want to get, we've been able to show that patient health in these rural patients was improved

[00:11:29] Speaker 04:
by using this system where patients were, where they were sent their data remotely to the physician as opposed to going into the doctor's office because there's more continuous and regular patient data being sent to the doctor.

[00:11:42] Speaker 04:
So they have actual studies that actually that carried out the steps and they cite and tout these studies as their evidence to convince the patients and the doctors to do exactly what gets these optimal results.

[00:11:57] Speaker 04:
And these studies have very detailed methodology, and the detailed methodology includes the transmission of data, I'm sorry, medical data from the patient to the system and for the doctor to download this information in the form of charts and graphs.

[00:12:15] Speaker 01:
Counsel, you want to save a good deal of time, you can continue or save it as you wish.

[00:12:21] Speaker 04:
It is well settled that

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The intervening new law controls a pending case.

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The district court's decision that it made its decision on originally is obsolete.

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It did not do analysis or look into the facts or make factual findings based on Akamai 5.

[00:12:38] Speaker 04:
That is a fact.

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It specifically stated that it decided the case simply stopped its analysis simply when it decided that multiple parties are participating in the activity.

[00:12:48] Speaker 04:
The case should be remanded and decided on existing law.

[00:12:51] Speaker 04:
With respect to the system claim in this case, Metronic has asked the court to read out the term one of, and advocates a construction that limits the language of the claim to one particular embodiment of the claim, which is completely inconsistent with the specification and the intrinsic evidence that describes the two alternatives, using the internet or using facsimiles.

[00:13:19] Speaker 04:
That's all I have to say.

[00:13:20] Speaker 04:
I would like to reserve the rest of my time for rebuttal, please.

[00:13:23] Speaker 01:
We will save it for you.

[00:13:24] Speaker 01:
Thank you.

[00:13:24] Speaker 01:
Mr. Barsky.

[00:13:33] Speaker 00:
Mr. Barsky, you do agree that the district judge decided this case on the wrong law, don't you?

[00:13:41] Speaker 02:
On the law that was changed in the second on-law.

[00:13:44] Speaker 00:
On the wrong law, because during the course of the appeal,

[00:13:48] Speaker 00:
The law has changed and under our rules, we apply the new law.

[00:13:54] Speaker 02:
Yes, I agree with that completely.

[00:13:56] Speaker 00:
What circumstances could there be under which we would not send it back and say to the district judge, sorry about that, but it's a redo by definition.

[00:14:12] Speaker 00:
What circumstances would call for any other results?

[00:14:17] Speaker 02:
There are two circumstances, Your Honor.

[00:14:20] Speaker 02:
The first is that there is no evidence in this fully developed record, after years of litigation, many depositions, tens of thousands of documents exchanged by the parties, that the new prong that was introduced by Akamai 5 for attributing the conduct of some parties or one or more parties in

[00:14:47] Speaker 02:
performing one or more steps of a method claim can be attributed to Medtronic.

[00:14:52] Speaker 02:
And I'm going to address that.

[00:14:54] Speaker 02:
I'm also going to address the second circumstance, Your Honor, which is that in this case, before we even get to the question of whether the actions of other persons in carrying out the steps of the claim method here, doctors and patients, in addition to the defendant, Medtronic,

[00:15:16] Speaker 02:
Before we ever reach that question, we have to address the question that Judge Lurie addressed earlier, which is there is no evidence in this record

[00:15:27] Speaker 02:
that all of the steps of the claimed method.

[00:15:31] Speaker 03:
We don't think that there is enough circumstantial evidence to show, to infer by a preponderance of the evidence.

[00:15:38] Speaker 03:
It's more likely than not that somebody, somewhere, some patient did all of the things to complete the process when, I don't know what is it, all but one of the devices in your own brochures for use for this.

[00:15:51] Speaker 03:
in fact, meet one of the two elements that you dispute.

[00:15:56] Speaker 03:
Namely, you take it off after you do the measuring.

[00:15:58] Speaker 03:
Everything except your continuous monitoring thing.

[00:16:01] Speaker 03:
And it's perfectly clear that it's highly likely that a bunch of this information is being synced.

[00:16:09] Speaker 03:
I just don't see how that's a starter of a proposition for no evidence that would allow an inference that there is, that it's more likely than not that somewhere, somewhere in the, somebody in the United States did this.

[00:16:22] Speaker 02:
Well, the answer to your question very directly is no, I don't think there is evidence in this record that would support that inference here.

[00:16:31] Speaker 03:
Am I right that in your brochure every single device, I forget the name of it, there are insulin pumps and then there are glucose measuring devices but not the continuous monitor, they would all meet the claim elements of measuring and taking it off?

[00:16:50] Speaker 03:
No, I don't agree with that.

[00:16:51] Speaker 03:
What doesn't?

[00:16:52] Speaker 02:
The claim at issue here requires a fairly complex confluence of circumstances for there to be

[00:17:01] Speaker 03:
I was just talking about, you rely on the absence basically of two elements.

[00:17:06] Speaker 03:
One is some measuring goes on without taking it off before you send the information.

[00:17:14] Speaker 03:
Just focusing on that, I just want to keep these things straight.

[00:17:18] Speaker 03:
Am I right that the only device in your brochure that is described as being usable that doesn't meet that requirement is your continuous monitor?

[00:17:29] Speaker 03:
Yes, I believe that is correct.

[00:17:31] Speaker 03:
OK, so that's already some evidence.

[00:17:34] Speaker 03:
And then there is at least a suggestion from what you describe as an option of sending the information to the doctor by the syncing process.

[00:17:46] Speaker 03:
You think there's no basis for saying anybody ever used that?

[00:17:52] Speaker 02:
If I could take a step back, the answer to your question is no.

[00:17:55] Speaker 02:
But if I could take a step back,

[00:17:58] Speaker 02:
What the claim requires is the use of a very particular type of measuring device, one that can be separated from the body of a patient.

[00:18:07] Speaker 02:
It requires a particular type of data, not lifestyle data, which is very important to diabetes patients, for example, nutrition, exercise, and the like.

[00:18:17] Speaker 02:
It has to be something that's measured from the body of the patient.

[00:18:21] Speaker 02:
It also requires that that data be uploaded to a Medtronic server

[00:18:26] Speaker 02:
and downloaded by the doctor in the form of a chart or graph.

[00:18:35] Speaker 03:
So put aside the graph.

[00:18:37] Speaker 03:
Is a list of two numbers a chart?

[00:18:40] Speaker 02:
Why not?

[00:18:42] Speaker 02:
By list of two numbers, if your honor is asking if the raw data is transferred from Medtronic's server in what I believe are called CSV formats, comma separated value format,

[00:18:56] Speaker 02:
then that, in my view, is not a chart within the meaning of the... But that issue has not been litigated, right?

[00:19:03] Speaker 03:
Whether CSV values, the content, constitutes a chart.

[00:19:09] Speaker 03:
And am I remembering something from the JA that talks about CSV, that talks about columns?

[00:19:17] Speaker 02:
I'm sorry, are you remembering from what?

[00:19:19] Speaker 03:
From the joint appendix.

[00:19:21] Speaker 03:
There's something in there that describes the .CSV format with reference to columns.

[00:19:26] Speaker 03:
Am I misremembering that?

[00:19:28] Speaker 02:
That sounds like a chart to me.

[00:19:31] Speaker 02:
Let's assume it is a chart.

[00:19:33] Speaker 02:
It still requires that the doctor receive the data from Medtronic's server.

[00:19:39] Speaker 02:
If we look at the manuals on which the appellant relies here, those manuals show

[00:19:46] Speaker 02:
that one of the ordinary uses of the CareLink system is for the patient to walk into the doctor's office with his or her blood glucose meter and directly download to the doctor's computer the data representing the values that that particular device has collected and measured.

[00:20:08] Speaker 02:
It's called an optional setting in the manuals that are part of this record that the data can be.

[00:20:16] Speaker 03:
Can I shift you to the other issue?

[00:20:17] Speaker 02:
Yes, absolutely.

[00:20:18] Speaker 03:
As I think you might tell, interests me considerably more.

[00:20:20] Speaker 02:
Yes.

[00:20:21] Speaker 03:
And I don't want you to talk about the conditions participation.

[00:20:25] Speaker 03:
I don't, at present, have any problem with that.

[00:20:28] Speaker 03:
I want you to focus on the parenthetical about Grokster in Akamai Phi.

[00:20:34] Speaker 03:
Yes.

[00:20:34] Speaker 03:
It says vicarious liability can be established if you, the defendant, profit from the other person's activity and have the ability and control, ability and right to control it.

[00:20:50] Speaker 03:
Grokster didn't have to apply that standard, as it says in footnote nine, because it did it under inducement.

[00:20:56] Speaker 03:
So we don't know whether that would have been true in Grokster or not.

[00:20:59] Speaker 03:
But it cites a couple of earlier cases, Shapiro-Bernstein cases.

[00:21:05] Speaker 03:
Why is it that under that standard, MedGraph couldn't establish vicarious liability?

[00:21:15] Speaker 02:
So under the right and ability to control, call it doctrine from Grokster and the associated line of copyright cases, on which this court has previously relied for some of these doctrines in patent law,

[00:21:34] Speaker 02:
What you need is to be able to point to some ability by the defendant to, I'm sorry if I'm just repeating the standard, but to control the activities of users of the system.

[00:21:47] Speaker 02:
And I know, Judge Toronto, you did not want me to refer to the participation in, conditioning the participation of receded benefits.

[00:21:56] Speaker 02:
Then I wouldn't defy you.

[00:21:59] Speaker 02:
And therefore I won't.

[00:22:00] Speaker 02:
But I would like to refer the court to the appendix at 924.

[00:22:21] Speaker 02:
The issue of synchronizations came up earlier.

[00:22:24] Speaker 02:
Synchronizations, meaning the process of the physician obtaining the data

[00:22:30] Speaker 02:
from, directly from Medtronic's server, as opposed to from the patient's metering device when the patient walks it in.

[00:22:39] Speaker 03:
They bring in a thumb drive or something?

[00:22:40] Speaker 02:
Yes, exactly.

[00:22:41] Speaker 02:
It can be a thumb drive.

[00:22:43] Speaker 02:
It can be the meter itself that can actually transfer the data as well.

[00:22:48] Speaker 02:
But that process of synchronization is necessary for any claim of infringement.

[00:22:54] Speaker 02:
And I believe that is undisputed in this record.

[00:22:58] Speaker 02:
But it's an insufficient predicate

[00:23:01] Speaker 02:
for infringement, because synchronization alone does not necessarily require that all the elements of the claim are satisfied, because it could be CGM, continuous glucose monitoring data.

[00:23:14] Speaker 02:
When you're through with that thought, I have a question.

[00:23:16] Speaker 00:
Go ahead.

[00:23:18] Speaker 00:
OK, I can stop.

[00:23:19] Speaker 00:
All right, no.

[00:23:21] Speaker 00:
Judge Toronto is a much more experienced trial lawyer than I, and he has demonstrated how you can look at this record as a good trial lawyer would and see, well, how about this and how about that?

[00:23:39] Speaker 00:
I take it you're a trial lawyer also?

[00:23:42] Speaker 00:
I am.

[00:23:44] Speaker 00:
Help me understand this.

[00:23:46] Speaker 00:
If you were trying this case on behalf of MedGraph,

[00:23:52] Speaker 00:
Would you put in the evidence relative to what you understood to be the law of the case at that time, or would you put in other evidence that you thought really wasn't relevant to the legal standard?

[00:24:08] Speaker 00:
My point being, we now have a new legal standard.

[00:24:12] Speaker 00:
Can we say with some confidence that

[00:24:18] Speaker 00:
There's no way a good trial lawyer might have put in additional evidence in the record in light of a different legal standard.

[00:24:28] Speaker 02:
The answer to the question is that if I were counsel for MedGraph below, I would have put in all evidence going to direction and control, because that's the penumbra under which these various standards for attributing action

[00:24:47] Speaker 02:
arise, whether it is a contract.

[00:24:50] Speaker 00:
So in your view, Akamai 5 really didn't change that much from Akamai 4.

[00:24:55] Speaker 02:
I'm sorry.

[00:24:56] Speaker 02:
It added an additional prong to agency and contract as ways of finding direction and control by specifying this participation in the system receipt of benefits.

[00:25:10] Speaker 00:
To prove that would require different evidence, I take it.

[00:25:14] Speaker 02:
It would.

[00:25:15] Speaker 02:
It could.

[00:25:17] Speaker 02:
My point is simply that if I were in MedGraph's counsel's shoes to answer your question directly, I would put in all of the evidence going to direction and control, no matter whether it cleanly fell into an agency or other type of category.

[00:25:38] Speaker 02:
But in this page of the record, this is the page that makes so clear that

[00:25:47] Speaker 02:
Medtronic is not exercising any ability to control the use of its system.

[00:25:53] Speaker 02:
What it is telling at A924, what it is telling its patients is that speak, quote, and I'm at the fifth bullet point at the top of the page, speak to your health care provider to determine the best way to share your data so that together you can continue to improve

[00:26:14] Speaker 02:
your diabetes management.

[00:26:16] Speaker 03:
Can I get back to some of those more procedural things that Dr. Plager was talking about?

[00:26:21] Speaker 03:
Yes, of course.

[00:26:22] Speaker 03:
At least this question perhaps I should ask of your counsel on the other side.

[00:26:29] Speaker 03:
Did they make in their blue brief an argument that they need more discovery than they got?

[00:26:41] Speaker 03:
They do say we would like to present our material in a more Akamai-5 focused way than we could possibly have done however many years ago the motion was actually filed, a long time ago.

[00:26:55] Speaker 03:
But do they say we limited our discovery, part of what should go on on remand is reopening discovery so we can propound discovery requests?

[00:27:10] Speaker 03:
that are more focused on the new standard.

[00:27:12] Speaker 02:
I believe they raised that in their opening brief and said it would be up to the discretion of the district judge.

[00:27:18] Speaker 02:
But they also said in their responsive brief, and this is at page 13 of that brief.

[00:27:25] Speaker 02:
The gray brief?

[00:27:27] Speaker 02:
Yes.

[00:27:30] Speaker 02:
I believe the quote is that most, if not all, of the evidence going to the Akamai 5 standard may already be in the record.

[00:27:40] Speaker 02:
And so what they have not done in this appeal, and I've not heard today, is identify what facts there are in this record or what facts they might even hopefully develop were they permitted by the district judge to take additional discovery.

[00:28:02] Speaker 02:
That would create some genuine issue, particularly in light of the passage that I just identified

[00:28:08] Speaker 02:
at A924, which makes clear that Medtronic is telling its patients, you do what you and your physician think is best about how to share your data.

[00:28:19] Speaker 02:
And of course, how that data is shared is critical to whether or not the steps of the method are being carried out.

[00:28:27] Speaker 02:
And that's why we are asking respectfully that the judgment of the district court be affirmed, because there is no evidence in this fully developed record after this long period of time

[00:28:38] Speaker 02:
that would allow the plaintiff and appellant here to meet any standard that this court has imposed for divided infringement in the last six years.

[00:28:50] Speaker 00:
We don't know what the trial judge would have done if the plaintiff had filed a 60B motion or 60B1 motion instead of the 62.1, do we?

[00:29:01] Speaker 02:
Well, I think actually the district judge said, Judge Plager,

[00:29:07] Speaker 02:
that he did not see a basis for a successful 60B motion on these facts.

[00:29:15] Speaker 02:
But certainly, we don't know what the answer is.

[00:29:18] Speaker 02:
Yes, we don't know what he would have done.

[00:29:21] Speaker 02:
I see I'm over my time.

[00:29:24] Speaker 01:
Thank you, Mr. Boski.

[00:29:25] Speaker 01:
Thank you very much.

[00:29:26] Speaker 01:
Mr. Fahony has some rebuttal time.

[00:29:32] Speaker 04:
Thank you, Your Honor.

[00:29:36] Speaker 04:
Medtronic, in fact, does admit, in response to Judge Soronto's inquiry, that at least in 20% of cases, there could be infringement.

[00:29:46] Speaker 04:
Now, it argues that patients don't have to use the infringing steps.

[00:29:51] Speaker 04:
But it does admit in its briefing that, in fact, it does.

[00:29:56] Speaker 03:
I guess the only thing I am focused on at the moment is this right and ability to control.

[00:30:03] Speaker 03:
Why is it not?

[00:30:05] Speaker 03:
absolutely clear from the material we already have that there could not possibly be facts for you to discover indicating that they do in fact have the ability and right to control patients' use.

[00:30:20] Speaker 04:
They absolutely do have the right and ability to control patients' use.

[00:30:23] Speaker 04:
They provide the patients the interface to the entire system.

[00:30:30] Speaker 04:
They provide patients the password to the system.

[00:30:32] Speaker 04:
So they obviously have the right, this is all their system.

[00:30:34] Speaker 03:
There are clean elements here, the taking of the measurement, the separating of the device, the communicating of the data, both uplink and downlink, where the downlink might not actually have to occur because it's sitting on the device.

[00:30:49] Speaker 03:
A bunch of those elements are elements that

[00:30:54] Speaker 03:
I will say this and then you'll respond.

[00:30:56] Speaker 03:
The record makes absolutely clear they have neither the ability nor the right to control.

[00:31:01] Speaker 03:
They do have the ability and right to control some elements, because it's their software, but not all of the elements.

[00:31:08] Speaker 03:
And why, if the record makes that clear, would the possibility of more discovery, how could it possibly matter?

[00:31:16] Speaker 04:
Well, the question is, if we have more discovery, we could clarify, for example, how they control

[00:31:24] Speaker 04:
More information, for example, on how they may influence or control the patient's use of these particular steps.

[00:31:31] Speaker 04:
I mean, we know that they provide the software, the password, the information.

[00:31:39] Speaker 04:
They say, look at these studies.

[00:31:42] Speaker 04:
This is how you do it to get these great results.

[00:31:45] Speaker 04:
So they are inducing patients to carry out these steps.

[00:31:49] Speaker 04:
They have the right to control these steps.

[00:31:52] Speaker 04:
When we ask the inquiry about the right, what is it the right?

[00:31:56] Speaker 04:
They have the right to shut the whole thing down or they have the right to allow a patient to use the system as they have advocated is the most beneficial way to use the system.

[00:32:07] Speaker 04:
And they have the ability to control the manner and timing of its use.

[00:32:12] Speaker 04:
They control the entire system.

[00:32:14] Speaker 04:
They can change the software as they please.

[00:32:17] Speaker 04:
They can provide different information in the software, how you get into the system.

[00:32:22] Speaker 04:
So this question is, do they have to control every single step?

[00:32:26] Speaker 04:
Well, I think under Occamite V, the action of other parties can be attributed to them if they control the manner or the timing.

[00:32:39] Speaker 04:
And they receive a benefit.

[00:32:40] Speaker 04:
And they'll receive a benefit.

[00:32:40] Speaker 04:
They receive a benefit.

[00:32:42] Speaker 04:
They make money selling some great profit, billions of dollars of sales of meters and puffs.

[00:32:48] Speaker 01:
They get a benefit.

[00:32:49] Speaker 01:
They control the man.

[00:32:50] Speaker 01:
Council, we have the right to control the timing of your argument.

[00:32:54] Speaker 01:
And the red light indicates that it's over.

[00:32:57] Speaker 01:
Thank you.

[00:32:58] Speaker 01:
Thank you.