[00:00:01] Speaker 04:
Good morning, everyone.

[00:00:04] Speaker 04:
The first argued case this morning is number 15, 1932, Melchior against Highlight International.

[00:00:12] Speaker 04:
Mr. DiMiteo.

[00:00:14] Speaker 03:
Thank you, Your Honor.

[00:00:19] Speaker 03:
May it please the Court.

[00:00:21] Speaker 03:
The District Court committed reverseful error when it construed Melchior's claims too broadly to allow the use of an external power source

[00:00:31] Speaker 03:
such like the highlight oil pump, to vary the position of the cam phaser.

[00:00:37] Speaker 03:
Melchior essentially agrees.

[00:00:40] Speaker 03:
He states that his invention is different from the prior art because it uses torque reversals alone without an external power source.

[00:00:50] Speaker 03:
That's on page one of his brief, page three throughout his brief.

[00:00:54] Speaker 03:
He concedes that.

[00:00:56] Speaker 03:
Recognizing that he can't

[00:00:57] Speaker 03:
support or defend the court's overbroad claim construction, he sets up a straw mat.

[00:01:04] Speaker 03:
He says that Highlight advocated to the district court that the mere presence of an oil pump in a car engine precluded infringement.

[00:01:13] Speaker 03:
That is not true.

[00:01:15] Speaker 03:
As we cite in our brief, in our claim construction briefs, our joint claim construction chart, and at oral argument in front of the judge, Highlight always has maintained

[00:01:26] Speaker 03:
that Melchior's claims must be construed to prohibit the use of an external power source.

[00:01:32] Speaker 03:
And that's the limitation that the district court refused to accept.

[00:01:37] Speaker 03:
It clearly said, I am not going to read the claims, construe them, as prohibiting the use of an external power source.

[00:01:47] Speaker 03:
Post trial, the error became clear to the district court, but it concluded

[00:01:53] Speaker 03:
that the factual stipulation of non-infringement somehow cured the wrong claim construction.

[00:01:59] Speaker 04:
How do we know what the jury considered with respect to the stipulation?

[00:02:06] Speaker 03:
We don't know what they actually thought in the deliberation.

[00:02:10] Speaker 03:
But what we do know is that they're presumed to have followed the court's instructions.

[00:02:17] Speaker 03:
And the court's instructions in this case... How do you know?

[00:02:20] Speaker 03:
Because that's the law in the Fifth Circuit.

[00:02:23] Speaker 03:
that appellate courts, looking at a jury decision, are presumed that jurors must follow the court instructions.

[00:02:31] Speaker 03:
If we don't have that system of review, then anything is possible, Your Honor.

[00:02:37] Speaker 03:
But here, it's clear.

[00:02:39] Speaker 03:
The court instructed the jury, the legal instructions were, you must follow my claim constructions, factual stipulations, evidence that you can either accept or reject.

[00:02:55] Speaker 00:
Wasn't there a theory of infringement that was presented to the jury that would have found infringement notwithstanding the power source?

[00:03:06] Speaker 03:
Yes, Your Honor.

[00:03:07] Speaker 00:
Well, if that theory was presented and the jury believed it, then why wouldn't that be sufficient?

[00:03:14] Speaker 03:
It's not sufficient because at the same breath, Melchior said you can ignore the stipulation.

[00:03:21] Speaker 03:
Its expert witness told the jury

[00:03:24] Speaker 03:
that you can find infringement while the pump is still operating.

[00:03:28] Speaker 03:
That's what their own expert told the jury.

[00:03:31] Speaker 03:
So in this case, and we don't even have to get to jury confusion.

[00:03:35] Speaker 03:
In this case, the jurors could have accepted our argument.

[00:03:39] Speaker 03:
We presented in our case that highlight is always using an oil pump to vary the position of a cam phaser.

[00:03:47] Speaker 03:
And at times, it combines it with torque reversals.

[00:03:51] Speaker 03:
Melchior agreed, but said, well, perhaps for a fraction of a second, the pump is off and there's infringement.

[00:03:58] Speaker 00:
Well, it is a fraction of a second within a fraction of a second.

[00:04:02] Speaker 00:
Isn't it like an oscillating thing?

[00:04:04] Speaker 00:
I mean, the valve is opening and closing faster than your eye can see it.

[00:04:08] Speaker 03:
Exactly.

[00:04:09] Speaker 00:
So did you do it like this?

[00:04:10] Speaker 00:
Exactly.

[00:04:10] Speaker 00:
So it's closed for a millisecond, but it's a millisecond within a second.

[00:04:14] Speaker 00:
So if you took over a period of an hour and you asked how long was the valve closed,

[00:04:21] Speaker 00:
It might have been two minutes, three minutes, something like that.

[00:04:25] Speaker 00:
Over an hour.

[00:04:26] Speaker 03:
Over an hour, perhaps.

[00:04:27] Speaker 00:
Well, then it'd be two or three minutes of time during which there'd be an infringement.

[00:04:32] Speaker 03:
No, there wouldn't.

[00:04:33] Speaker 00:
Because there'd be no exterior power source, nothing coming in from the exterior during that time.

[00:04:40] Speaker 03:
No, because it's never closed when the B1 check valve was open.

[00:04:47] Speaker 03:
And that's clear.

[00:04:48] Speaker 03:
Because if that happened,

[00:04:50] Speaker 03:
the phaser becomes uncontrollable.

[00:04:52] Speaker 03:
It's designed to operate with an oil pump throughout.

[00:04:57] Speaker 03:
It's designed that way.

[00:04:58] Speaker 03:
And Highlight realized, in fact, we have an exhibit.

[00:05:01] Speaker 00:
Right, but that was a disagreement between the experts.

[00:05:04] Speaker 00:
That's what your experts said, and their experts said, no, that's not so.

[00:05:08] Speaker 03:
So the question is, now we're going to whether they proved that opposite theory.

[00:05:13] Speaker 03:
And they didn't, because there's no evidence that the B1 check valve is open.

[00:05:18] Speaker 03:
and the pump check valve is closed at the same time.

[00:05:22] Speaker 03:
But even if there was, that decision was taken away from the jury because the claim construction doesn't preclude that.

[00:05:30] Speaker 03:
The claims are broad enough to read on our non-infringing hybrid mode.

[00:05:35] Speaker 03:
And we'll never know because of that incorrect claim construction.

[00:05:41] Speaker 03:
Now, the

[00:05:51] Speaker 03:
Record on this case also supports finding for invalidity.

[00:05:55] Speaker 03:
And I want to turn briefly to the Dankert reference.

[00:06:01] Speaker 03:
The only question is whether this court can look at these claims and construe them as requiring direct transfer in a closed line.

[00:06:09] Speaker 03:
There's no dispute that the Dankert reference is identical to Melpierre's patent.

[00:06:16] Speaker 03:
It uses torque reversals alone to vary the cam phaser.

[00:06:21] Speaker 03:
Full stop.

[00:06:23] Speaker 03:
The only defense that their witness argued was that it doesn't disclose direct transfer in a closed line.

[00:06:31] Speaker 03:
Now, on appeal, Milkier argues that his claims contemplate that limitation.

[00:06:38] Speaker 03:
Contemplate.

[00:06:39] Speaker 03:
However, the claims do not recite that limitation.

[00:06:43] Speaker 03:
The specification does not use direct transfer in a closed line at all.

[00:06:48] Speaker 03:
In fact, I submit the word direct transfer, closed line is nowhere to be found in this specification.

[00:06:55] Speaker 03:
And the claim construction.

[00:06:56] Speaker 00:
But it's found in the district court's explanation of the interpretation given to the oppositely acting first and second means, right?

[00:07:07] Speaker 03:
What the district court says there doesn't say anything about closed line.

[00:07:12] Speaker 00:
I'm looking at page 4388 in the record.

[00:07:15] Speaker 03:
Yes.

[00:07:16] Speaker 00:
where the judge is setting forth the claim construction with regard to the opposite acting first and second hydraulic means limitation.

[00:07:25] Speaker 00:
And it's clearly in the interpretation they're giving, there's nothing about direct transfer.

[00:07:31] Speaker 00:
But when she explains it at 4388, she says a phase shift occurs when there is a direct transfer of hydraulic fluid from one chamber to the other.

[00:07:40] Speaker 03:
Certainly that is possible.

[00:07:41] Speaker 03:
And what the court is saying that that's how the phase can change with a direct transfer.

[00:07:46] Speaker 03:
But nowhere do the claims or the court... But the jury was not instructed that.

[00:07:51] Speaker 03:
Not at all, Your Honor.

[00:07:53] Speaker 03:
Was not instructed or the claims support that that's a requirement.

[00:07:57] Speaker 03:
That these claims are so narrow as to require direct transfer in a closed line.

[00:08:02] Speaker 03:
It's not there.

[00:08:04] Speaker 00:
And that makes sense because when you read the specification... Wasn't there testimony in front of the jury that if

[00:08:10] Speaker 00:
direct transfer is not required, then Dankert reads on the patent, anticipates it.

[00:08:17] Speaker 03:
Yes.

[00:08:18] Speaker 03:
That is their only defense to validity was to argue that there's direct transfer in a closed line, full stop.

[00:08:26] Speaker 00:
So for this claim, for these patents... Well, John, they are in a closed line.

[00:08:31] Speaker 00:
Isn't your adversary arguing that the patent is limited to a closed line?

[00:08:35] Speaker 03:
Exactly.

[00:08:36] Speaker 03:
But it's not.

[00:08:38] Speaker 03:
If you conclude,

[00:08:40] Speaker 03:
that these claims are not restricted to a clothesline, automatically these claims are invalid in view of danker.

[00:08:47] Speaker 00:
If we also agree then, direct transfer isn't a requirement of the claim, right?

[00:08:55] Speaker 03:
It didn't get to the jury as two separate components.

[00:08:58] Speaker 03:
They're looking to try to bifurcate the two.

[00:09:01] Speaker 00:
I'm taking the 102 argument as being pitched to us on this appeal.

[00:09:08] Speaker 00:
And your adversary's view is that you need a closed line and a direct transfer.

[00:09:13] Speaker 03:
Right.

[00:09:13] Speaker 00:
And your argument is that the patent isn't limited to a closed line and that Dankert isn't limited to a direct transfer.

[00:09:21] Speaker 03:
Right.

[00:09:21] Speaker 03:
And you can get there in either way.

[00:09:23] Speaker 03:
I understand your point, Your Honor.

[00:09:26] Speaker 03:
Even if you construe these claims, there's no support to construe these claims as requiring even a direct transfer.

[00:09:34] Speaker 03:
Did they ask for such a construction?

[00:09:36] Speaker 03:
No.

[00:09:37] Speaker 03:
And the reason they didn't ask for it is because Dankert came into the case after the claim construction process.

[00:09:44] Speaker 03:
And what happened, the full impact of this overbroad claim and Dankert was upon the district court at summary judgment.

[00:09:54] Speaker 03:
And we put the issue towards the court.

[00:09:56] Speaker 03:
How can they argue that Dankert is not invalidating and still argue for infringement?

[00:10:03] Speaker 03:
Because the claims aren't that way.

[00:10:05] Speaker 03:
Because broadly construed, they would read on our hybrid mode, which they don't want to do.

[00:10:10] Speaker 03:
And that's how the stipulation came to be.

[00:10:12] Speaker 03:
So there was never a time for the court to consider.

[00:10:15] Speaker 03:
It was never actually argued to her, other than in post-trial briefing, when it became apparent in trial that that's how they were going to distinguish Tanker, direct transfer in a closed line.

[00:10:28] Speaker 03:
And the court basically punted on the issue.

[00:10:31] Speaker 03:
Judge Lynn did not re-review her claim construction.

[00:10:36] Speaker 03:
She said, well, there was enough expert to speak.

[00:10:38] Speaker 03:
But the issue before this court is clearly just one of claim construction.

[00:10:42] Speaker 03:
If you agree with Melchior that these claims require direct transfer, direct transfer in a closed line, then he wins.

[00:10:49] Speaker 03:
But I submit there is no support in the record for that claim interpretation.

[00:10:57] Speaker 03:
The specification is simply sound.

[00:10:59] Speaker 03:
The closest Melchior comes to trying to get you there is to argue that, well, without direct transfer in a closed line,

[00:11:05] Speaker 03:
you may have cavitation.

[00:11:08] Speaker 03:
But the problem with that is when you read the specification, cavitation is solved by opening the line and connecting it to the pump.

[00:11:18] Speaker 03:
And that's at column six, lines 10 to 17.

[00:11:21] Speaker 03:
It says, cavitation is solved by attaching to an external pressure and opening the line.

[00:11:37] Speaker 03:
put into communication through the unidirectional circuits, through check valves, a pump having a low pressure.

[00:11:44] Speaker 03:
That's identical to what Dankert does.

[00:11:47] Speaker 03:
So there is no way you can construe these claims as requiring direct transfer, let alone direct transfer in a closed line.

[00:11:54] Speaker 04:
And you argued this to the jury, I assume?

[00:11:57] Speaker 03:
We did.

[00:11:57] Speaker 04:
And what is your understanding of where, in your view, the jury went wrong?

[00:12:04] Speaker 03:
The jury was misled by the expert witness

[00:12:07] Speaker 03:
saying, and closing argument, they said, Dankert does not have direct transfer.

[00:12:12] Speaker 03:
But did your witness set it straight?

[00:12:16] Speaker 03:
Exactly.

[00:12:17] Speaker 03:
Our expert, Dr. Smith, laid out.

[00:12:20] Speaker 04:
But the jury didn't agree.

[00:12:21] Speaker 04:
How are we to second guess all this?

[00:12:24] Speaker 03:
Because it was a claim construction.

[00:12:26] Speaker 03:
What was argued to the jury was that Melchior's claims required direct transfer in a closed line, and they don't.

[00:12:33] Speaker 03:
And that's where the jury went wrong on COVID.

[00:12:36] Speaker 04:
Well, is it an oversimplification to say that, agree with you, we must agree that the jury did not consider the stipulation?

[00:12:47] Speaker 03:
No, Your Honor.

[00:12:48] Speaker 03:
The situation is not relevant to the anticipation.

[00:12:51] Speaker 03:
It's not relevant to anticipation.

[00:12:53] Speaker 03:
But on the issue of infringement, it's not relevant either.

[00:12:58] Speaker 03:
The claims are too broad, and Melchior agrees.

[00:13:02] Speaker 03:
That took the decision away from the court.

[00:13:05] Speaker 03:
And I just want to talk on that briefly before I sit down.

[00:13:07] Speaker 03:
I want to come back to that point.

[00:13:10] Speaker 03:
The jury could have agreed with us that our pump worked all the time and disagreed with Melchior's theory that the pump was closed for whatever time while a B1 check valve is open.

[00:13:23] Speaker 03:
But they had to follow the jury's instructions

[00:13:26] Speaker 03:
and find the court's claim constructions and find infringement.

[00:13:31] Speaker 03:
They simply had to.

[00:13:33] Speaker 03:
And to argue for Melchior can argue that they followed the stipulation when his own expert disappeared.

[00:13:39] Speaker 00:
So your view is that there's no argument that they could make if the proper claim construction were in play.

[00:13:46] Speaker 03:
Yes, for both.

[00:13:48] Speaker 00:
So you're saying that their theory of infringement under the proper claim construction is not something they would be entitled to present to a jury on a rematch.

[00:13:58] Speaker 03:
They would, Your Honor.

[00:14:00] Speaker 00:
Well, that's what I'm trying to do.

[00:14:02] Speaker 00:
That is, if you take one or two, if you went on one or two cases over, and you go home happily, if one or two doesn't go your way, if we were to decide that the claim construction was wrong, and that the jury should have been told that there can be, that there's a limitation, an extra limitation of the claim, no exterior pump, that would suggest to me, under our case law, you'd send it back for another trial.

[00:14:28] Speaker 03:
The short answer is yes, Your Honor.

[00:14:31] Speaker 03:
You would certainly, that would be the default.

[00:14:34] Speaker 03:
But I submit to you that you would still need to look on the issues on this appeal whether that would be enough, whether Melchior.

[00:14:41] Speaker 00:
What I was getting at was there was a theory presented of infringement, two theories.

[00:14:46] Speaker 00:
One of them, you knock out on emotion and limiting.

[00:14:49] Speaker 00:
And the second theory of infringement, even if claim construction had been the other way,

[00:14:54] Speaker 00:
You're telling me here at oral argument, well, that doesn't work.

[00:14:56] Speaker 00:
I'm not certain the jury ever really got its hands on a full explication of that theory for how many milliseconds it could have been infringing.

[00:15:05] Speaker 03:
Exactly.

[00:15:07] Speaker 03:
At the very least, it's a remand if you agree that the claimant.

[00:15:10] Speaker 00:
We have case law that you can have infringement for a second or two.

[00:15:15] Speaker 00:
We have some pharmaceutical cases where the pill dissolved.

[00:15:18] Speaker 00:
But before it dissolved, it was in function.

[00:15:20] Speaker 03:
I understand that law completely.

[00:15:23] Speaker 03:
It only just invites a second inquiry.

[00:15:25] Speaker 03:
And that is whether taking a look at what evidence, Milk, you're actually trying to introduce to show that the pump was closed.

[00:15:33] Speaker 03:
And there's only two documents in this case that talk about the pump and the B1 check valve when they work together.

[00:15:39] Speaker 03:
One is a test on the valve alone that, yes, you could physically make that happen.

[00:15:44] Speaker 03:
You could put enough oil pressure through the B1 to close the pump check valve.

[00:15:48] Speaker 03:
We never disputed that.

[00:15:50] Speaker 03:
But the second one was when that actually happened during operation, highlight lost control of its phaser.

[00:15:56] Speaker 04:
Let's hear from the other side.

[00:15:57] Speaker 04:
We'll save you rebuttal time.

[00:15:59] Speaker 03:
Thank you, Your Honor.

[00:16:02] Speaker 04:
Mr. Sanfilippo.

[00:16:14] Speaker 01:
May it please the Court.

[00:16:15] Speaker 01:
Good morning, Your Honor.

[00:16:16] Speaker 01:
Steve Sanfilippo for Appellee.

[00:16:17] Speaker 01:
Gene Melchior.

[00:16:19] Speaker 01:
I'd like to take the negative limitation on the pump first.

[00:16:22] Speaker 01:
So let's talk about Dankert first, okay?

[00:16:26] Speaker 02:
Sure.

[00:16:26] Speaker 02:
So why doesn't Dankert anticipate?

[00:16:28] Speaker 02:
Your theory, your expert's theory is it doesn't show direct transfer over a closed line, right?

[00:16:35] Speaker 01:
That and the structure that Dankert uses, Dankert transfers from one chamber to an open central cavity that's... Well, wait, wait, wait.

[00:16:42] Speaker 02:
I thought your expert said explicitly that it doesn't anticipate because it doesn't show direct transfer over a closed line.

[00:16:49] Speaker 01:
And I believe he also testified that the structure is different as well.

[00:16:52] Speaker 01:
It uses that central cavity, which is always open to a pressure source.

[00:16:56] Speaker 01:
That's the same thing as direct transfer, isn't it?

[00:17:00] Speaker 01:
Well, hey.

[00:17:01] Speaker 00:
He's saying that's because it uses the reservoir.

[00:17:04] Speaker 00:
It's not direct.

[00:17:05] Speaker 00:
The fluid goes from A into the reservoir out into B. Yes, your honor.

[00:17:12] Speaker 02:
He is.

[00:17:13] Speaker 02:
So where did you argue that direct transfer over a closed line is a claim limitation?

[00:17:20] Speaker 01:
I don't know that it's a claim limitation.

[00:17:22] Speaker 01:
It's a difference between Melchior's patent and Danker's patent.

[00:17:27] Speaker 01:
You have to have a close.

[00:17:29] Speaker 01:
That's the entire purpose of Melchior's patent, is that correct?

[00:17:32] Speaker 01:
Did you agree that it's not a claim limitation?

[00:17:36] Speaker 01:
No, I don't.

[00:17:39] Speaker 01:
I don't necessarily agree it's not a claim limitation.

[00:17:41] Speaker 01:
Well, is it a claim limitation?

[00:17:47] Speaker 01:
It's not an explicit claim limitation.

[00:17:50] Speaker 00:
Oh, wait, wait.

[00:17:51] Speaker 00:
There are.

[00:17:52] Speaker 00:
I mean, you used the word contemplate in an educated way at page 57 of your brief where we're talking about a direct transfer in a closed circuit.

[00:18:01] Speaker 00:
You say that the court's claim the construction's contemplated a direct transfer.

[00:18:08] Speaker 00:
That's in page 57 of your red brief.

[00:18:11] Speaker 00:
This was your adversary put his finger on that when he stood up.

[00:18:15] Speaker 00:
There's a difference between a claim construction holding or stinking and something that a claim construction may have contemplated as a possibility, but not as a requirement.

[00:18:29] Speaker 00:
I think this is the point Judge Dyke is asking as well.

[00:18:44] Speaker 01:
Yeah.

[00:18:45] Speaker 01:
Right, the patents and the district court's claim construction contemplated a direct transfer of fluid from one phasor chamber to the other.

[00:18:52] Speaker 00:
There's a difference between contemplating something as a possibility and requiring something.

[00:18:59] Speaker 00:
If the claims don't require a direct transfer in a closed system that could permit it, then the claim would read on a system

[00:19:11] Speaker 00:
that allows for a direct transfer in a non-closed system.

[00:19:18] Speaker 00:
I think that's what Judge Dyke was asking is, unless you can show that the claims are restricted either to a closed system or to direct transfer, then how do you get around Denkert?

[00:19:33] Speaker 01:
I mean, there's no question he is limited to that direct chamber B to A transfer.

[00:19:41] Speaker 01:
wait wait I don't understand.

[00:19:43] Speaker 01:
Did you say it is a claim limitation?

[00:19:46] Speaker 02:
It's at least contemplated in the claim.

[00:19:48] Speaker 02:
Well that's different.

[00:19:52] Speaker 02:
In order to say that Dankert doesn't read on this, the direct transfer over a closed line has to be a claim limitation, doesn't it?

[00:19:59] Speaker 01:
And that is Melchior's claim.

[00:20:01] Speaker 01:
That is the difference between Melchior and Dankert.

[00:20:04] Speaker 01:
But you never argued that that was a claim limitation.

[00:20:11] Speaker 01:
I'm not exactly sure if we did or did not, Your Honor, but that was certainly contemplated in the district court's claim construction when she construed the claim to require not only just the chambers, but the circuitry going directly from those two chambers.

[00:20:28] Speaker 02:
But the jury was not instructed the direct transfer over a closed line as a requirement, right?

[00:20:33] Speaker 01:
Well, they essentially were with the stipulation.

[00:20:37] Speaker 01:
What stipulation?

[00:20:38] Speaker 01:
The stipulation that says that there is no infringement any time that the pump is open and providing fluid to the chamber.

[00:20:47] Speaker 01:
What's that have to do with direct transfer over a closed line?

[00:20:50] Speaker 01:
Because if the pump is open, if the P-check valve is open to the phasor chambers, then there's no direct transfer, there's an opening, right?

[00:21:02] Speaker 02:
That's it?

[00:21:03] Speaker 00:
But why no direct transfer?

[00:21:05] Speaker 00:
There maybe is an assist.

[00:21:07] Speaker 00:
But the question is whether or not you're having a corresponding transfer from A to B. A empties and B fills.

[00:21:14] Speaker 00:
And in Dankert, A empties and empties through a reservoir and fills in B. Right.

[00:21:26] Speaker 00:
It seemed to me that when I'm looking at the claim construction, it's at 4387.

[00:21:32] Speaker 00:
in our appendix for this particular limitation being construed.

[00:21:40] Speaker 00:
And the judge says oppositely acting first and second hydraulic means means a volume change in one hydraulic means results in an opposite volume change in the other hydraulic means.

[00:21:53] Speaker 00:
It doesn't say it results indirectly.

[00:21:56] Speaker 00:
It just said it results.

[00:21:59] Speaker 00:
It would seem to me it would be broad enough to include an indirect transfer as well as a direct transfer so long as the volume that's in A is being transferred correspondingly into B. But when you include the circuitry and the fact that the check valve has to be closed, the only way to transfer is that direct line from chamber to chamber.

[00:22:27] Speaker 01:
You can't make the chamber any other way.

[00:22:29] Speaker 02:
That doesn't mean that that's part of the claim limitation.

[00:22:33] Speaker 02:
Your witness Hollander on 7597 in response to a question using the actual claim language says that Dankert discloses oppositely acting first and second hydraulic means, right?

[00:22:49] Speaker 01:
Yes, but he also testified that

[00:22:52] Speaker 01:
He did it in an open system.

[00:22:55] Speaker 01:
But that's adding a claim limitation.

[00:22:56] Speaker 01:
That's the problem.

[00:22:58] Speaker 01:
And Melchior's claim is limited to that direct transfer.

[00:23:05] Speaker 01:
And in fact, that is what highlights own counsel at the claim construction hearing.

[00:23:10] Speaker 00:
Come back for a moment, if you would, sir, your adversary's position about what happens in the Fifth Circuit.

[00:23:16] Speaker 00:
He said that the jury is obligated to follow the charge as given.

[00:23:23] Speaker 00:
There are literal charges given and the charges given didn't include a contemplation of a direct transfer.

[00:23:31] Speaker 00:
The charges given didn't say anything about direct or indirect, thus including both.

[00:23:38] Speaker 01:
But there was no evidence presented to the jury that would have allowed them to find that a non-direct transfer constituted infringement.

[00:23:48] Speaker 00:
Well, there was a colloquy in direct and redirect of your expert over this very question as to whether direct was a claim limitation.

[00:23:58] Speaker 00:
And the attorney that was examining him said, it's not right.

[00:24:03] Speaker 00:
It's not there.

[00:24:04] Speaker 00:
And so wouldn't the jury have been aware of the direct, indirect discussion, right?

[00:24:13] Speaker 00:
but then having the claim construction from the judge that doesn't allow you to use a direct transfer as a claim limitation.

[00:24:22] Speaker 01:
I think the district court made it clear several times and again there was no evidence that would have allowed and nobody argued that you could have infringement without that direct transfer.

[00:24:33] Speaker 01:
That was the only evidence that was put on.

[00:24:35] Speaker 02:
But that doesn't mean it's a claim limitation.

[00:24:39] Speaker 02:
The district court did not charge the jury that direct transfer over a clause line was a claim limitation, right?

[00:24:46] Speaker 01:
I don't believe the judge explicitly instructed them that.

[00:24:51] Speaker 02:
Well, certainly if that's the case, then how can the expert add that as a claim limitation?

[00:24:57] Speaker 01:
Well, he's not necessarily adding it as a claim limitation per se other than that's the only way the thing works.

[00:25:04] Speaker 01:
That's what's contemplated in the patent between the specification

[00:25:08] Speaker 01:
the drawings, you can't look at that and say there's a way to transfer with the Melchior method without that closed line.

[00:25:15] Speaker 01:
That's the whole purpose of his patent.

[00:25:18] Speaker 01:
That's what differs him from Dankert.

[00:25:20] Speaker 01:
And that's certainly what the U.S.

[00:25:22] Speaker 01:
Patent and Trademark Office found on May 31, 2015 when they did a re-exam and they found once again that Melchior's patent is subject to patent protection.

[00:25:33] Speaker 02:
Well, maybe you could have had an argument

[00:25:36] Speaker 02:
that the claim here requires a direct transfer over a closed line.

[00:25:39] Speaker 02:
But unfortunately for you, you never made the argument.

[00:25:42] Speaker 02:
And the district court didn't instruct the jury that way.

[00:25:47] Speaker 01:
Well, I think we argued throughout trial that it was a direct transfer in a closed line.

[00:25:53] Speaker 01:
You didn't argue as a claim construction.

[00:25:56] Speaker 01:
Did you?

[00:25:59] Speaker 01:
I mean, that's the claim construction.

[00:26:02] Speaker 01:
That's the claim construction the district court gave when she talked about having to use that unidirectional communication circuit.

[00:26:08] Speaker 02:
Did you argue for that as a claim construction?

[00:26:11] Speaker 01:
I don't know that we necessarily argued for that as a claim construction, but that was the result of her claim constructions.

[00:26:18] Speaker 01:
She construed the claims to require that unidirectional circuit, which was a construction that you have to have a closed line.

[00:26:28] Speaker 01:
Without that construction,

[00:26:30] Speaker 01:
Without that unilateral chamber, you don't have infringement.

[00:26:34] Speaker 01:
That was part of her claim constructions.

[00:26:38] Speaker 01:
And what's implied from that construction is it has to be a transfer and a direct line.

[00:26:42] Speaker 01:
And that's what separates it from that.

[00:26:44] Speaker 00:
She didn't charge it, in fact.

[00:26:47] Speaker 00:
And on cross, when this debate was going on between Dr. Hollander and I believe Mr. DiMatteo, at the bottom,

[00:27:00] Speaker 00:
Mr. DiMatteo says to your witness, if the jurors open their book and look at the court's claim construction and do not see the word direct transfer, they'll have every reason to ignore your opinion about direct transfer, because it's not required by the claims.

[00:27:16] Speaker 00:
Correct?

[00:27:17] Speaker 00:
That's his question to your expert.

[00:27:19] Speaker 00:
Answer.

[00:27:20] Speaker 00:
Well, I don't know that that's true.

[00:27:23] Speaker 00:
I think they're going to have to look at the wording of the claims and figure out themselves what the wording means

[00:27:31] Speaker 00:
Oh, the expert was, well, direct is not there.

[00:27:36] Speaker 00:
And the judge didn't charge it, but the jury would be allowed to look behind the charge and read in a limitation.

[00:27:46] Speaker 00:
That doesn't seem like.

[00:27:47] Speaker 01:
Is that really the reading in a limitation?

[00:27:50] Speaker 01:
Her claim constructions included that unidirectional circuit.

[00:27:54] Speaker 01:
That's the one.

[00:27:55] Speaker 00:
That's the closed line.

[00:27:56] Speaker 00:
Why did her claim construction do that?

[00:28:03] Speaker 00:
That seems to be an important point.

[00:28:21] Speaker 00:
The jury charges at 84.91.

[00:28:24] Speaker 00:
I didn't have that volume with me, but 84.91 is where the actual charge is.

[00:28:30] Speaker 01:
4390 is her claim construction where she instructed that the structure required is the necessary communication circuit between the two chambers.

[00:28:40] Speaker 01:
And that's the closed line.

[00:28:44] Speaker 01:
What page is this?

[00:28:45] Speaker 01:
4390.

[00:28:47] Speaker 01:
This is her claim construction chart.

[00:29:02] Speaker 00:
4390, which one of the?

[00:29:05] Speaker 01:
The bottom, the structure.

[00:29:07] Speaker 01:
Check fell means an inlet line for permitting hydraulic fluid to flow only into the other first and second hydraulic means.

[00:29:17] Speaker 01:
I'm not seeing what... The very last box, function permitting hydraulic fluid, structure, check fells and the necessary communication circuit.

[00:29:29] Speaker 01:
It's also above that I guess in the

[00:29:31] Speaker 00:
Otherwise.

[00:29:38] Speaker 00:
Permitting flow out of one of the first or second means into an inlet line leading to the other of the first.

[00:29:44] Speaker 01:
That's just saying how the check valve works.

[00:29:48] Speaker 01:
And the necessary communication circuit.

[00:29:50] Speaker 01:
That's showing the flow pattern.

[00:29:53] Speaker 01:
Selectively permitting flow out of one or another of the first and second hydraulic means.

[00:29:59] Speaker 02:
Where are you reading?

[00:30:01] Speaker 02:
At the top of the page.

[00:30:03] Speaker 00:
Distributor comprising a slide, body groove, spring, necessary connection.

[00:30:09] Speaker 01:
And the necessary connection comprising communication circuit and a check valve.

[00:30:15] Speaker 01:
And that is your closed line.

[00:30:18] Speaker 01:
It's your direct transfer in a closed line.

[00:30:26] Speaker 02:
It doesn't say anything about not having a reservoir.

[00:30:29] Speaker 02:
Why does that preclude a reservoir?

[00:30:32] Speaker 01:
Because the reservoir, in Dankert's reservoir system, it's an open system, right?

[00:30:38] Speaker 01:
It's always open to the pump, and you have drainage from one chamber to the center, and then filling from that chamber into the other, or from that pump into the other chamber, whereas in ours, you don't have that central sump.

[00:30:51] Speaker 01:
You have a direct transfer from chamber to chamber.

[00:30:56] Speaker 01:
Which is, again, they recognize that the claim construction hearing highlights counsel.

[00:31:01] Speaker 01:
Melchior invented this closed loop system that allows us to move fluid from one chamber to the other.

[00:31:08] Speaker 01:
And that's what he invented.

[00:31:09] Speaker 01:
So it's an argument they make here, but the fact is between the court's claim constructions and Melchior's patent

[00:31:20] Speaker 01:
you can't read that patent to not require a transfer in a closed line.

[00:31:24] Speaker 02:
But that's not the issue.

[00:31:26] Speaker 02:
The issue is whether you raise the issue, which you didn't ask for this claim construction.

[00:31:30] Speaker 02:
The issue is whether the district court instructed the jury about direct transfer over a closed line and the district court didn't.

[00:31:37] Speaker 02:
It's too late now to be arguing for a claim construction that you didn't raise earlier and that the jury wasn't instructed on.

[00:31:44] Speaker 01:
But I think her claim constructions again at $43.90, that requires

[00:31:50] Speaker 01:
a transfer in a closed line.

[00:31:52] Speaker 01:
That's your basic argument, right?

[00:31:55] Speaker 01:
That's the basic argument.

[00:32:00] Speaker 04:
I see our light is flashing, but let's make sure we've answered all the questions that the panel may have.

[00:32:07] Speaker 04:
Okay?

[00:32:08] Speaker 04:
Good.

[00:32:09] Speaker 04:
Thank you.

[00:32:10] Speaker 04:
Thank you, Your Honor.

[00:32:14] Speaker 04:
We're here for Mr. DiMatteo.

[00:32:16] Speaker 04:
Three minutes, please.

[00:32:18] Speaker 03:
I'll be brief, Your Honor.

[00:32:19] Speaker 03:
Thank you.

[00:32:20] Speaker 03:
First, Denkert doesn't have a reservoir.

[00:32:24] Speaker 03:
Nowhere does Denkert use that term.

[00:32:25] Speaker 00:
What have you got to say to his claim construction argument based on 43.90?

[00:32:30] Speaker 00:
He's saying it's a mean plus function limitation and that the earlier claim construction which I had referred, which was at 43.87, which is oppositely acting first and second for varying the position, that that was describing, in essence, the function.

[00:32:48] Speaker 00:
But the structure is important because it's a mean plus functional limitation.

[00:32:52] Speaker 03:
Right.

[00:32:53] Speaker 03:
So we're under rule 12, paragraph 6.

[00:32:55] Speaker 03:
The court certainly identified circuits 18 and 19 and checked valves 20 and 21 as corresponding structure.

[00:33:01] Speaker 03:
You'll also agree that nowhere did the court say direct transfer in the closed line is required by that structure.

[00:33:07] Speaker 03:
They're asking you to look at that structure and say, hmm, it looks like it could have a direct transfer in a closed line.

[00:33:14] Speaker 03:
Therefore, we should limit the claims to direct transfer the closed line.

[00:33:18] Speaker 03:
based on the corresponding structure.

[00:33:21] Speaker 03:
But the law of this court is very clear that under 112 paragraph 6, you only incorporate the structure that's required to perform the function.

[00:33:30] Speaker 04:
And equivalence thereof.

[00:33:31] Speaker 03:
And equivalence thereof.

[00:33:33] Speaker 03:
And there's no function or anything recited in the claims, in the means claims, which would require direct transfer in the clothesline.

[00:33:40] Speaker 03:
That's why the specification is completely silent.

[00:33:44] Speaker 03:
It's amazing that they're saying here today,

[00:33:46] Speaker 03:
that Melchior's invention somehow is direct transfer in a closed line, where the patent specification is silent about it.

[00:33:54] Speaker 03:
The closest they try to come, as I mentioned before, was this concept of cavitation.

[00:34:01] Speaker 03:
Perhaps if the claim said resisting cavitation, you could read in direct transfer of the closed line.

[00:34:06] Speaker 03:
But even there, the specification tells us no.

[00:34:09] Speaker 03:
To prevent cavitation, you have to open the line to a low pressure source, just like Danker.

[00:34:16] Speaker 03:
so that you fill any leaked oil back in to prevent cavitation.

[00:34:20] Speaker 02:
But this, it says, into an inlet line leading to the other of the first and second.

[00:34:25] Speaker 02:
Doesn't Dankert do that?

[00:34:27] Speaker 02:
It flows into an inlet line leading to the other of the first and second hydraulic means?

[00:34:33] Speaker 03:
So Dankert has a one-to-one ratio.

[00:34:36] Speaker 03:
It has two high-pressure chambers.

[00:34:39] Speaker 03:
It doesn't have a reservoir.

[00:34:40] Speaker 03:
It has a junction, like a T-junction, which you have a base pressure applied.

[00:34:46] Speaker 03:
Let's say it's five bar.

[00:34:48] Speaker 03:
That's the connection 30 at this T bar.

[00:34:51] Speaker 03:
Everything else is identical.

[00:34:53] Speaker 03:
And that's there just to have... I thought Dinger had a reservoir.

[00:34:56] Speaker 03:
It's not a reservoir.

[00:34:58] Speaker 03:
All it is, it's called a transverse bore that's connected to basically a pressure tank, similar to a water well system.

[00:35:07] Speaker 03:
It's oil kept under pressure, so you have a constant pressure source at that point.

[00:35:12] Speaker 03:
just like Melchior wants a constant pressure point through a pump connection to prevent cavitation.

[00:35:18] Speaker 03:
But the way Dankert operates is using torque reversals.

[00:35:23] Speaker 03:
It's pushing the oil out of chamber 15 through a check valve right into 16 through that little T junction and back again.

[00:35:31] Speaker 03:
It's identical to the Melchior device.

[00:35:34] Speaker 03:
And just having a little opening, it's not a reservoir, just a little opening to a low pressure system is

[00:35:42] Speaker 03:
is irrelevant to Melpier's invention and anticipatory.

[00:35:46] Speaker 03:
That's why they can't explain to you where in their claims you could read in direct transfer in the closet.

[00:35:52] Speaker 02:
What is the purpose in Dankert of having that opening that you referred to?

[00:35:57] Speaker 03:
What that does, if you have a water system at home, you have water pressure, it's kept at a base pressure.

[00:36:05] Speaker 03:
If you're hard, you're diastolic, you have a base pressure.

[00:36:08] Speaker 03:
It's there to put a base pressure in the system for the hydraulics.

[00:36:12] Speaker 03:
to prevent, truly to prevent cavitation.

[00:36:15] Speaker 03:
And Melchior actually tells us that, again, at column six.

[00:36:19] Speaker 03:
He says, look, this is figurative.

[00:36:22] Speaker 03:
Figure three is sort of an ideal world.

[00:36:25] Speaker 03:
But you have a leak, you're going to have cavitation.

[00:36:26] Speaker 03:
The pressure is going to drop.

[00:36:28] Speaker 03:
So you want a low pressure connection point just to keep enough pressure in the system so it doesn't cavitate.

[00:36:35] Speaker 03:
So even Melchior says, look, you've got to open my lines to a low pressure system to connect it.

[00:36:41] Speaker 04:
And that's exactly what he said.

[00:36:42] Speaker 04:
Do you need to move on?

[00:36:43] Speaker 04:
Anything else you need to ask?

[00:36:47] Speaker 03:
Just one short statement, Your Honor.

[00:36:49] Speaker 03:
We're celebrating the 130th anniversary of White v. Dunbar, which says you cannot twist the claims like a nose of wax.

[00:36:57] Speaker 03:
That's exactly what's happening here.

[00:37:00] Speaker 03:
Thank you very much.

[00:37:00] Speaker 04:
Thank you.

[00:37:01] Speaker 04:
Thank you both.

[00:37:01] Speaker 04:
The case is taken under submission.