[00:01:18] Speaker 04:
Okay, ready?

[00:01:20] Speaker 04:
The next case is 16-10-61, PCT International Incorporated Against Holland Electronics, with LC, Mr. Leach.

[00:01:30] Speaker 00:
Yes, Your Honor, thank you.

[00:01:32] Speaker 00:
This is a case about the coaxial cable connectors.

[00:01:37] Speaker 00:
In a case tried before the jury when a dispute arose, Mr. Leach,

[00:01:43] Speaker 02:
In your opening brief, you say neither party requested the district court to construe the term outer barrel.

[00:01:50] Speaker 02:
And it's not in the initial chart, but in your response of Markman brief, it's argued that outer, I'm quoting now, outer barrel means the outside or external shell of the connector with a greater length and diameter.

[00:02:08] Speaker 02:
How was that a request for the district court to construe outer barrel?

[00:02:13] Speaker 00:
Your Honor, I should be more specific.

[00:02:16] Speaker 00:
No one requested the court to construe it at the outset.

[00:02:19] Speaker 00:
So that resulted in there being no extrinsic evidence offered at the Markman hearing concerning the ordinary meaning of it.

[00:02:26] Speaker 00:
That was the point I was trying to make.

[00:02:28] Speaker 00:
And then when we got to the Markman hearing, the defendant said, look, outer barrel, you can't just construe outer.

[00:02:36] Speaker 00:
The real term is outer barrel.

[00:02:40] Speaker 02:
Gotcha.

[00:02:41] Speaker 00:
Thank you.

[00:02:42] Speaker 00:
In this case, the dispute arose just before trial concerning the mean of the claim term, annular rib.

[00:02:51] Speaker 00:
The court declined to construe the term and instruct the jury as to what annular rib meant.

[00:02:59] Speaker 00:
It appeared, going in, that the parties agreed that it meant circular.

[00:03:06] Speaker 00:
And it wasn't until we got to trial, in fact the last day of trial, that the

[00:03:12] Speaker 00:
of patentee in cross-examining the defendant's expert, went into some material in his expert report, which was not offered on direct testimony, about the meaning of the term annular rib and created a dispute.

[00:03:32] Speaker 00:
And then the defendants asked the court or suggest the court to instruct the jury as to what annular rib meant.

[00:03:41] Speaker 00:
And the court declined.

[00:03:42] Speaker 00:
The court declined to do so in the motion for judgment as a matter of law.

[00:03:47] Speaker 00:
And so the defendant, I mean, the patentee was able to argue to the jury based on the evidence improperly put before the jury concerning what claim construction that the defendant's expert admitted that an annular rib could be a series of projections.

[00:04:09] Speaker 00:
And I don't think that the claim term could.

[00:04:12] Speaker 00:
as a matter of law, be construed that way.

[00:04:15] Speaker 00:
And although the court declined to construe the term annular rib in the court's order on the motion for JMOL, the court did eventually express in its opinion as to what the annular rib was.

[00:04:34] Speaker 00:
And at age 18, the court said the annular rib, as used in the patent,

[00:04:41] Speaker 00:
has the plain and ordinary meaning that the rib is ring-shaped, forming at least an approximate circle around the longitudinal axis of the connector.

[00:04:52] Speaker 00:
Now, if the court had instructed the jury to that effect, it would have prevented the patentee from making the arguments they made in their closing argument.

[00:05:05] Speaker 00:
If the court had applied that definition on the motion for JMOL,

[00:05:11] Speaker 00:
I think the court should have ruled as a matter of law that the accused products did not form an annular rib.

[00:05:20] Speaker 00:
The evidence, I thought, was uncontested or undisputed at trial, that when the accused products were compressed, that this inner grip ring that they claimed corresponded to the claimed

[00:05:39] Speaker 00:
classical band that formed the annular rib, we compress in a form as a square.

[00:05:47] Speaker 00:
And the district court, in its order on the motion for JML, found as a fact that the grip ring in question did form an approximate square.

[00:06:08] Speaker 00:
And this is an excerpt from the joint appendix at A13763 through 64.

[00:06:16] Speaker 00:
But this is from the patentee's own report, their own testing.

[00:06:21] Speaker 00:
They compress some of the accused products, and they determine that the compression ring is in a rectangular form instead of a circular form.

[00:06:33] Speaker 00:
Well, if annular rib means circular,

[00:06:38] Speaker 00:
then this is undisputed evidence that it's not circular.

[00:06:44] Speaker 00:
And they also pointed out that there are four corners that are uncompressed.

[00:06:48] Speaker 00:
And these notations here that say uncompressed area are from the original report.

[00:06:55] Speaker 00:
That's not added during the litigation.

[00:06:58] Speaker 00:
That was in the original report.

[00:07:01] Speaker 00:
So in this case, these corners

[00:07:05] Speaker 00:
go all the way up and they're not compressed at all here.

[00:07:09] Speaker 00:
So this square structure here is not an annular rib as a matter of law.

[00:07:25] Speaker 00:
I'd like to point out that this did become a disputed claim term late in the case.

[00:07:31] Speaker 00:
I direct your attention to

[00:07:34] Speaker 00:
the record at A4691 where the patentee remarked that this was now a disputed claim term on the eve of trial.

[00:07:47] Speaker 00:
And the defendant noted at A6637 in footnote 2 that the patentee was now claiming this is a disputed claim term, but they haven't specified

[00:08:03] Speaker 00:
exactly what the dispute is and requested additional briefing from the court on the issue.

[00:08:09] Speaker 00:
What was that saying?

[00:08:11] Speaker 00:
It was A6637 footnote 2.

[00:08:15] Speaker 00:
Oh, footnote 2.

[00:08:16] Speaker 00:
Okay.

[00:08:18] Speaker 00:
And then the patentee acknowledged over and over again that it was

[00:08:28] Speaker 00:
clearly legally impermissible to argue the meaning of claim terms to the jury.

[00:08:35] Speaker 00:
They did that at A7371, A4691, A8110, through 8111.

[00:08:51] Speaker 00:
But then when they scored their great cross-examination of the defendant's expert, they flip-flopped

[00:08:58] Speaker 00:
And when the defendant asked the court to construe the term, they told the court that they objected to it and that it was the parties are free to argue that to the jury.

[00:09:11] Speaker 00:
And I refer you to the appendix at A10282.

[00:09:18] Speaker 00:
And the same thing appears at A10715.

[00:09:21] Speaker 04:
So are you objecting to the procedure of giving that to the jury?

[00:09:25] Speaker 00:
Yes.

[00:09:26] Speaker 00:
The jury should not have been allowed to hear the evidence concerning the disputed claim construction.

[00:09:34] Speaker 00:
The plaintiff and the patentee should not have been allowed to argue to the jury in closing argument.

[00:09:40] Speaker 00:
The testimony that they were able to elicit from the defendant's expert during cross-examination, it was improper to argue that to the jury.

[00:10:00] Speaker 00:
In this particular case, the evils was also understood.

[00:10:05] Speaker 02:
Didn't you make an argument to the district court not to construe annular rib?

[00:10:13] Speaker 00:
I suggested to the court that it should instruct the jury that it's circular, but also told the court that I thought that it didn't need construction because it had its ordinary, everyday meaning still.

[00:10:30] Speaker 00:
up until the last of the trial when they cross-examined the defendant's expert, thinking that it was undisputed, that it meant circular.

[00:10:40] Speaker 00:
So as long as it's undisputed, there's no dispute for the court to resolve.

[00:10:45] Speaker 00:
The real issue arose on the last witness that the defendant put on, the witness stand, which was the expert, and the cross-examination that then ensued.

[00:10:57] Speaker 00:
Because in his direct testimony,

[00:11:00] Speaker 00:
He testified as to the undisputed fact that it was, he understood that it was circular and it wasn't until the very end of the trial when they crossed it's eminent expert that this evidence was put before the jury about the disputed claim term and what he had said in his expert report.

[00:11:24] Speaker 00:
The accused products had what's referred to as a window in them.

[00:11:30] Speaker 00:
There is a slot that was cut out in the coaxial connector.

[00:11:34] Speaker 00:
So when you're inserting the coax, you can see if you've got the braid all the way in.

[00:11:39] Speaker 00:
And this slot that was cut out, because the defendant's products had this ring on the inside, inside the tubular member, when it was compressed, there was a gap there.

[00:11:53] Speaker 00:
And so there was nothing to press against this compression ring when it was squeezed.

[00:11:58] Speaker 00:
And those windows caused the compression ring to deform in this square manner.

[00:12:09] Speaker 00:
And those windows were in all of the products.

[00:12:13] Speaker 00:
And it was what caused this collapsible ring to never form a circular angular rib as claimed by Pat.

[00:12:30] Speaker 00:
In addition, during the trial, a defense witness actually did a demonstration where they crimped one of the accused's products to a piece of coax, took it apart, showed the jury that it was a square form.

[00:12:46] Speaker 00:
So it didn't make any difference whether it was owned a piece of coax or not owned a piece of coax.

[00:12:52] Speaker 00:
And the testimony was that that always happens.

[00:12:55] Speaker 00:
It always resulted in a square shape.

[00:12:59] Speaker 00:
And there was no evidence then presented by the patentee that, wait a minute, here's some evidence or here's some evidence that they didn't challenge that demonstration or the fact that it was always a square shit.

[00:13:14] Speaker 02:
What was it your expert said on cross-examination?

[00:13:17] Speaker 00:
He was asked about dictionary definitions.

[00:13:21] Speaker 00:
And he was asked about.

[00:13:22] Speaker 02:
He basically conceded that it didn't have to be a perfect circle, did he?

[00:13:29] Speaker 00:
Well, the issue isn't whether it has to be a perfect circle.

[00:13:31] Speaker 00:
I would submit to you that whether it's a perfect circle or not, this is not literally an annular rib.

[00:13:38] Speaker 00:
And this was a literal infringement case.

[00:13:41] Speaker 00:
There was no doctrine of equivalence.

[00:13:42] Speaker 02:
Conceded that even an annular resembling a square would fall within the limitation of claim one of the patent.

[00:13:53] Speaker 00:
I don't know where he supposedly said that.

[00:13:59] Speaker 00:
But the part that I am arguing about was at A10452 where the cross-examination took place.

[00:14:14] Speaker 00:
And the portion of his expert report that he was asked about was at A1777 through 1778.

[00:14:22] Speaker 00:
So that's the part that he was asked about, which I think is your question.

[00:14:37] Speaker 04:
Right.

[00:14:38] Speaker 04:
Let's save your rebuttal time and let's hear from the other side.

[00:14:41] Speaker 00:
Yes, Your Honor.

[00:14:42] Speaker 00:
And I would also like to point out that we requested a jury instruction.

[00:14:48] Speaker 00:
The court instructed the jury that if they didn't find literal infringement, they must find whether the product infringed on the doctrine of equivalence.

[00:14:57] Speaker 00:
There was no evidence on doctrine of equivalence except as to one element of the claim.

[00:15:01] Speaker 00:
The defendant asked for an instruction to tell the jury that they could only consider the doctrine of equivalence for that one element.

[00:15:09] Speaker 00:
The patentee objected to the instruction, and the court failed to give it.

[00:15:14] Speaker 04:
Thank you.

[00:15:17] Speaker 04:
You?

[00:15:18] Speaker 04:
OK.

[00:15:19] Speaker 04:
Mr. DeLaris.

[00:15:20] Speaker 01:
Thank you, Your Honor.

[00:15:22] Speaker 01:
May it please the court, counsel.

[00:15:25] Speaker 01:
There was more than substantial evidence

[00:15:28] Speaker 01:
presented during the four-week trial of this case to support the jury's finding of infringement and damages.

[00:15:35] Speaker 01:
The jury was properly instructed as to the application of the doctrine of equivalence, the last issue that counsel for appellant just raised.

[00:15:46] Speaker 01:
The district court properly construed the disputed claim term outer barrel.

[00:15:52] Speaker 01:
And many of the arguments Holland now seeks to raise before this court

[00:15:56] Speaker 01:
are directly contrary to the positions that Holland urged before Judge Teelborg below.

[00:16:03] Speaker 01:
And Holland has raised a wide range of issues on appeal, challenging the jury verdict.

[00:16:08] Speaker 01:
And I want to make sure that I respond to all of them.

[00:16:10] Speaker 01:
But virtually all of the presentation was directed to the issue about whether Judge Teelborg committed reversible error by not instructing the jury as to the meaning of the claim term

[00:16:26] Speaker 01:
annular rib.

[00:16:27] Speaker 01:
I want to clarify that point.

[00:16:29] Speaker 04:
It was whether it was reversible error by not construing it for himself.

[00:16:33] Speaker 04:
Isn't that what we're told?

[00:16:35] Speaker 01:
Well, I think you're told several things.

[00:16:37] Speaker 01:
This issue of annular rib comes up several times in Holland's brief.

[00:16:42] Speaker 01:
One is that the court committed irreversible error by not construing the term.

[00:16:47] Speaker 01:
Another, there are points where Holland argues that the court committed reversible error by not instructing the jury as to that instruction.

[00:16:55] Speaker 01:
And then there's also an argument that there is not substantial evidence supporting the finding that the term annular rib is literally met.

[00:17:04] Speaker 01:
So I think it comes up in all of those contexts.

[00:17:07] Speaker 01:
And in each instance, we believe the overwhelming weight of the record cuts strongly against Holland's position.

[00:17:14] Speaker 01:
So I'd like to start first with the question of whether or not Holland took a directly contrary position before Judge Teelborg in this case

[00:17:24] Speaker 01:
and thereby is judicially stopped from arguing now that it was your reversible error not to construe the case.

[00:17:32] Speaker 01:
I'm sorry, not to construe that claim term.

[00:17:36] Speaker 01:
At several points during counsel's argument, he claimed that he asked the court to give an instruction on annular rip.

[00:17:47] Speaker 01:
He was correct that prior to trial, we repeatedly took the position

[00:17:53] Speaker 01:
that if he was going to be allowed to raise for the first time what we believe to be an untimely infringement claim, it would be necessary to go through a further markman process.

[00:18:05] Speaker 01:
The court declined to do that in part because Holland repeatedly argued the exact position contrary to what it argues now and told the court that under 02 micro, it was not necessary to construe the term.

[00:18:18] Speaker 01:
But probably most importantly,

[00:18:21] Speaker 03:
Leaving aside whatever developments... Is it your position that the plain and ordinary meaning was appropriate and that the jury should just be given the plain and ordinary meaning?

[00:18:30] Speaker 01:
I'm sorry, I missed the beginning of that, Your Honor.

[00:18:31] Speaker 03:
Is it your position or your client's position that the plain and ordinary meaning of annual or rib should be used?

[00:18:40] Speaker 03:
It was our position when we got to trial that... I'm asking, did you advocate for a particular claim construction?

[00:18:47] Speaker 01:
We did not, Your Honor.

[00:18:49] Speaker 03:
So it was your position

[00:18:51] Speaker 03:
that the plain and ordinary meaning should be used?

[00:18:54] Speaker 01:
And I want to make sure I provide the full context.

[00:18:56] Speaker 01:
Prior to trial, we took the position that it might be necessary to construe that term in a second markman process.

[00:19:05] Speaker 01:
At trial, we acceded to the very position that Holland took, that the jury could apply the plain and ordinary meaning.

[00:19:15] Speaker 03:
And the evidence- What's the plain and ordinary meaning?

[00:19:18] Speaker 01:
What is the plain and ordinary meaning?

[00:19:19] Speaker 03:
Because juries are allowed to apply plain and ordinary meaning when they're capable of assessing the plain and ordinary meaning and figuring out what it is.

[00:19:27] Speaker 01:
Absolutely.

[00:19:27] Speaker 03:
And so what is the plain and ordinary meaning of annular rib?

[00:19:33] Speaker 01:
We acceded to the position that was taken by their own expert, that the term annular rib is a circular series of projections or crests.

[00:19:45] Speaker 01:
So Mr. Leach refers to- It has to be circular.

[00:19:48] Speaker 03:
Not a perfect circle, but it has to be circular.

[00:19:50] Speaker 01:
It's not a perfect circle.

[00:19:51] Speaker 01:
It has to go around the circumference of the cable in this instance.

[00:19:56] Speaker 03:
But a square is not circular.

[00:19:59] Speaker 03:
Would you agree with that?

[00:20:00] Speaker 03:
I'm not saying that's a perfect square.

[00:20:02] Speaker 03:
And I'm not saying it has to be a perfect circle.

[00:20:04] Speaker 03:
I'm not trying to be extreme.

[00:20:06] Speaker 03:
But a square is not a circle.

[00:20:08] Speaker 01:
A square is a different shape than a circle.

[00:20:10] Speaker 01:
So I think there are two parts, though, that I think it's pretty.

[00:20:12] Speaker 03:
You went out on a limb with that one.

[00:20:13] Speaker 03:
Let's see if I can get you to go a little further.

[00:20:16] Speaker 03:
Is a square circular?

[00:20:20] Speaker 01:
A square, the word square, is not circular.

[00:20:26] Speaker 01:
The claim term here is not annular.

[00:20:31] Speaker 01:
The claim term here that's being addressed is annular rib.

[00:20:35] Speaker 01:
The rib is just a projection.

[00:20:37] Speaker 01:
No, it's not, Your Honor.

[00:20:38] Speaker 01:
In fact, their own expert described that the rib is not a projection.

[00:20:43] Speaker 01:
It is a series

[00:20:45] Speaker 01:
of projections.

[00:20:46] Speaker 04:
It says a ring like projection or a series of projections.

[00:20:50] Speaker 01:
Yes, Your Honor.

[00:20:52] Speaker 03:
The series of projections would still have to be annular, right?

[00:20:57] Speaker 03:
Because the word annular, read out annular rib and just say, and to annular rib, never have a plain, ordinary meaning.

[00:21:04] Speaker 03:
It just means any projection, regardless of shape.

[00:21:07] Speaker 01:
It's a series, as their own witness testified.

[00:21:11] Speaker 01:
annular rib is a series of projections going around or would encompass a series of projections or crests going around the circumference of the cable.

[00:21:23] Speaker 01:
And that's exactly what the jury considered.

[00:21:26] Speaker 01:
And there was no dispute that was presented.

[00:21:29] Speaker 01:
The jury was never, there was no contrary, plain, nor ordinary meaning that was ever presented to the jury in this case, quite to the contrary.

[00:21:40] Speaker 01:
Again, we acceded to the very position that their expert took on what the plain and ordinary meaning of the term annular rib was.

[00:21:49] Speaker 03:
Well, how is the square shape that I see in the picture behind you an annular rib?

[00:21:57] Speaker 03:
Explain to me how the jury could find that was an annular rib.

[00:22:01] Speaker 01:
Sure.

[00:22:01] Speaker 01:
So let me offer two parts to that.

[00:22:05] Speaker 01:
So first of all, Howland's characterization

[00:22:08] Speaker 01:
of what's shown here.

[00:22:10] Speaker 01:
This was a topic that was discussed at great length at trial.

[00:22:14] Speaker 01:
And there was competing testimony on what is exactly shown here.

[00:22:19] Speaker 01:
And Judge Tealborg, after reviewing this and in his JMAW, specifically recognized that even in the corners of the, quote, square, the compression ring still projects inward

[00:22:36] Speaker 01:
toward the longitudinal axis.

[00:22:38] Speaker 03:
And we can see all that right on the picture, right?

[00:22:40] Speaker 03:
It's not a perfect square.

[00:22:41] Speaker 03:
The edges aren't 90 degrees.

[00:22:44] Speaker 03:
They're angled.

[00:22:45] Speaker 01:
Yes.

[00:22:45] Speaker 01:
And so even in these areas, there's still an inward projection.

[00:22:50] Speaker 01:
So if the term annular rib means a approximately circular series of projections, that's exactly what you have here, a series

[00:23:04] Speaker 01:
of crest or projection.

[00:23:06] Speaker 03:
So those four corners, right, are a series of projections, maybe, I guess.

[00:23:14] Speaker 03:
But what about the straight parts?

[00:23:17] Speaker 03:
Because you say it has to go all the way around the circumference of the cable.

[00:23:21] Speaker 03:
That's what you say, around the circumference of the cable.

[00:23:24] Speaker 03:
Those four parts only touch four spots.

[00:23:28] Speaker 03:
That's not all the way around the circumference of the table.

[00:23:30] Speaker 03:
The compression area, it's not

[00:23:34] Speaker 03:
all circular, even if I acquiesce in the idea that the corners have some degree of circularity.

[00:23:40] Speaker 01:
So if there is a series, and so one of the terms that their expert described this of was a series of crests, as a plain and ordinary meaning of the term rip.

[00:23:49] Speaker 01:
It's right out of a dictionary.

[00:23:50] Speaker 01:
That's where it came from.

[00:23:52] Speaker 01:
If we were to look at a series of crests going around the circumference, just like a wave crest necessarily in between those series of crests, there are troughs.

[00:24:04] Speaker 01:
And that's exactly the claim.

[00:24:05] Speaker 03:
This is the Grand Canyon between two little bumps.

[00:24:07] Speaker 01:
It is not, Your Honor.

[00:24:09] Speaker 03:
Let's just look at that picture.

[00:24:10] Speaker 03:
I mean, 80% of the distance is straight, and then you have these tiny little curved portions on the end, which represent the corners.

[00:24:20] Speaker 03:
So I mean, this isn't like crests and troughs, unless the trough is 90% of the distance.

[00:24:28] Speaker 01:
So as we understand the argument, the lack of the projection, they are arguing

[00:24:33] Speaker 01:
is here, not that this area is not helping to form an annular rib.

[00:24:40] Speaker 01:
These are a series of projections that are going around the circumference of the cable to do the two things that the claim expressly requires, that it has to fixably grip the cable, which there was extensive testimony it does, and which it has to also frictionally fix an inner tube

[00:25:03] Speaker 01:
that lies within the bore of the outer barrel.

[00:25:08] Speaker 01:
So again, given what their expert conceded.

[00:25:11] Speaker 03:
Well, that's the function that an annular rib has to perform in the context of this invention.

[00:25:16] Speaker 03:
But annular rib is a structural term.

[00:25:18] Speaker 03:
And so it has to have the structure that would be conjured up in someone's mind of annular rib.

[00:25:26] Speaker 03:
And I mean, I saw the JML and I saw the court focus on whether

[00:25:30] Speaker 03:
whether the jury could have found this square-like shape to be circular enough.

[00:25:35] Speaker 03:
That was the way I read the lower court's opinion.

[00:25:39] Speaker 01:
Well, so there was extent, again, there was no dispute presented in front of the jury about what the claim term annular rib meant.

[00:25:48] Speaker 01:
They did not offer a contrary testimony.

[00:25:51] Speaker 03:
Well, this report, right, in Isness's opinion at A18, when he says the term annular means circular, annular means ring shape.

[00:25:58] Speaker 03:
Rings are ordinarily understood to have circular shapes.

[00:26:01] Speaker 03:
Thus, the term annular rib, as used in the 422 patent, has the plain and ordinary meaning that the rib is ring-shaped, forming at least approximate circle around the longitudinal axis of the connector.

[00:26:14] Speaker 03:
Well, that's what the district court said in his opinion that we're reviewing, right?

[00:26:18] Speaker 03:
Am I missing something?

[00:26:19] Speaker 03:
Am I reading to the right place?

[00:26:20] Speaker 01:
That's among the right places.

[00:26:22] Speaker 01:
At page 19, he goes on to talk specifically about the series

[00:26:29] Speaker 01:
this ring-shaped series of projections.

[00:26:34] Speaker 03:
Well, he doesn't say ring-shaped.

[00:26:35] Speaker 03:
He says square-shaped.

[00:26:37] Speaker 03:
Two problems exist.

[00:26:39] Speaker 03:
So where?

[00:26:40] Speaker 01:
He says that Dr. Whittle had testified that an annular rib would have a quote, and I'm quoting now on appendix 10452.

[00:26:51] Speaker 01:
And Dr. Whittle is Holland's expert, that an annular rib would have a quote

[00:26:58] Speaker 01:
annular series of projections in a ring.

[00:27:02] Speaker 03:
In a ring.

[00:27:03] Speaker 03:
So where are the annular series of projections in a ring in that picture?

[00:27:08] Speaker 01:
So this ring goes all the way around the circumference of the cable and these are the projections formed in a series that go around the circumference of the cable.

[00:27:19] Speaker 03:
They're just four projections at sort of almost like the 90 degree points around a circle.

[00:27:25] Speaker 03:
So what

[00:27:26] Speaker 03:
Those are annular projections in a ring?

[00:27:29] Speaker 01:
Yes, Your Honor.

[00:27:31] Speaker 01:
They are a ring going around the circle, even in the corners.

[00:27:35] Speaker 01:
There is still, again, there was an express finding factually that there is still inward projection.

[00:27:41] Speaker 01:
So is it not a square?

[00:27:43] Speaker 01:
And it's a series of projections, or as their expert said, a series of crests.

[00:27:49] Speaker 01:
And I would say, again, that our position is that under the plain and the ordinary meaning, as they described it,

[00:27:56] Speaker 01:
That series, to have a series of crests requires there to be areas where the crest, where there are parts that are lower than the crest.

[00:28:06] Speaker 01:
And so it's a series of projections.

[00:28:08] Speaker 01:
And if you were to cut that ring and you were to flay it open, you would see exactly a series of crests or a series of projections.

[00:28:18] Speaker 01:
Notably, again, I think the primary point being that their expert testified

[00:28:24] Speaker 01:
The plain and ordinary meaning does not require a single projection that uniformly goes around the thing.

[00:28:33] Speaker 03:
I don't understand that.

[00:28:34] Speaker 03:
It doesn't make any sense to me.

[00:28:37] Speaker 03:
An annular rib can be a series of projections.

[00:28:40] Speaker 03:
I get it.

[00:28:40] Speaker 03:
That's what the evidence says, but it doesn't make any logical sense that that's the plain and ordinary meaning of annular rib, circular rib, circular projection.

[00:28:48] Speaker 01:
So if I could, Your Honor.

[00:28:50] Speaker 03:
I get the evidence says it.

[00:28:52] Speaker 03:
I understand.

[00:28:53] Speaker 03:
My role is not to second guess the evidence.

[00:28:57] Speaker 03:
It came out of his expert's mouth.

[00:28:59] Speaker 01:
And these again were arguments that were raised.

[00:29:01] Speaker 02:
I do want to raise... You could do the same thing with a pentagon or a triangle, too, in the sense that your goal is to make one circle grip another circle and compress a third circle within it.

[00:29:17] Speaker 02:
And the way you do that

[00:29:19] Speaker 02:
is with projections.

[00:29:21] Speaker 02:
And you could have three, you could have five, you could have four, you could have 11.

[00:29:26] Speaker 01:
Absolutely, Your Honor.

[00:29:27] Speaker 01:
And again, what the evidence shows is that there is a continuous projection of varying depths that do go around this.

[00:29:35] Speaker 01:
It is that there is no requirement, no requirement that there be a uniform depth or that it has to seal, as they now claim for the first time on reply, that there has to be some sealing or contact at all points

[00:29:49] Speaker 01:
around that series of projections.

[00:29:52] Speaker 01:
And I would just say, Your Honor, with respect to annular rib, the definition of rib right out of the dictionary, which is why ultimately their expert chose it, is that a rib encompasses a series of projections or crests.

[00:30:11] Speaker 01:
That's what the dictionary evidence said, and that's what they testified in trial.

[00:30:15] Speaker 01:
I do want to also, though, address this issue

[00:30:19] Speaker 01:
about process.

[00:30:21] Speaker 01:
Because regardless of what position Holland took up through this apparent change of position that they had during the course of the trial, unequivocally, unequivocally, Holland's counsel argued at the final charge conference before this was submitted to the jury that it was not necessary to construe the term Annular Reborn Structed Jury.

[00:30:48] Speaker 01:
And this, I think, is a key point in this.

[00:30:50] Speaker 01:
So if you bear with me, at appendix A10714, the final charge conference after all witnesses and all presentation, and we're getting ready to go to the jury, Ms.

[00:31:06] Speaker 01:
Collins' counsel argued, if the court were ever inclined to decide that the word annular needs to be construed, I suppose now would be the time to suggest

[00:31:19] Speaker 01:
that the court instruct the jury that it means circular.

[00:31:21] Speaker 01:
But he went on, the very next sentence, quote, I don't think that it needs to be construed.

[00:31:30] Speaker 01:
I think it's a word that has its ordinary, everyday meaning.

[00:31:36] Speaker 04:
Circular.

[00:31:39] Speaker 01:
At that point, well, so what he argued, although he referred, Your Honor, to the term annular rib, he ignores the rib part.

[00:31:48] Speaker 01:
He wants to argue what annular means.

[00:31:51] Speaker 01:
Annular is something that goes around the circumference of this round structure that's the cable.

[00:31:58] Speaker 01:
The part that he chooses to ignore and that his own expert testified has a plain and ordinary meaning of rib is a series of projections.

[00:32:09] Speaker 03:
Where does that come from?

[00:32:10] Speaker 03:
Like I'm sitting here on Google and rib is each individual bump in a series of bumps.

[00:32:18] Speaker 03:
But the rib is singular.

[00:32:19] Speaker 03:
I mean, I understand.

[00:32:21] Speaker 03:
It's their expert that said it.

[00:32:22] Speaker 03:
So they've got to live and die by their own evidence.

[00:32:25] Speaker 03:
But it doesn't make any sense.

[00:32:26] Speaker 01:
Well, I would say that there are.

[00:32:28] Speaker 03:
It makes sense to you?

[00:32:29] Speaker 03:
Well, you'll explain to me later.

[00:32:32] Speaker 01:
So again, what he argued is that the rib is not individual parts, but unequivocally testified.

[00:32:39] Speaker 01:
It encompasses a series.

[00:32:41] Speaker 03:
Ribbed would be a series, right?

[00:32:43] Speaker 03:
R-I-B-B-E-D.

[00:32:45] Speaker 03:
Ribs would be a series, but ribs singular doesn't feel like a series to me.

[00:32:49] Speaker 03:
It feels like one, like one bone.

[00:32:52] Speaker 01:
Anyway, it has to be circular.

[00:32:54] Speaker 03:
That one bone is circular, but anyway.

[00:32:56] Speaker 03:
But let's wrap it up.

[00:32:57] Speaker 03:
One last word.

[00:32:58] Speaker 01:
Yes.

[00:32:58] Speaker 01:
So that's the position that was taken by that expert.

[00:33:03] Speaker 01:
That's the position that was taken by our expert about the meaning is, and that's the plain order meaning, the only one presented to the jury.

[00:33:11] Speaker 01:
There was no dispute presented to the jury.

[00:33:14] Speaker 01:
about what these terms mean because we acceded to their own position.

[00:33:19] Speaker 01:
And with that, I'll stand on my briefs on the rest of the points.

[00:33:22] Speaker 04:
Thank you, Mr. Larris.

[00:33:24] Speaker 04:
Mr. Leach, we've run over.

[00:33:26] Speaker 04:
We have a larger rebuttal time.

[00:33:29] Speaker 00:
Your Honor, the problem in this case, although the defendant's expert testified on direct, that annular means circular.

[00:33:40] Speaker 00:
And I refer you to A10281A1074.

[00:33:45] Speaker 00:
The evidence about this series of projections, this nonsense, which was in his expert report, which the defendant didn't adopt, was put before the jury by the patentee on cross-examination.

[00:33:57] Speaker 00:
That was improper.

[00:33:58] Speaker 00:
If they wanted to challenge the court to construe annular rib in this weird manner, they should have presented that to the court.

[00:34:08] Speaker 02:
Is it improper to cross-examine your expert about his testimony?

[00:34:13] Speaker 00:
Because it was the meaning of a claim term, which is the sole province of the court to construe.

[00:34:21] Speaker 00:
They could have crossed the examinee in front of the court, but they shouldn't have put that evidence in front of the court.

[00:34:25] Speaker 02:
And that claim term is annular.

[00:34:27] Speaker 02:
Annular rib.

[00:34:30] Speaker 02:
You didn't mention annular rib in your discussion with the court.

[00:34:35] Speaker 00:
I'm sorry.

[00:34:37] Speaker 00:
Well, look, there was a trial brief that was filed at footnote one.

[00:34:42] Speaker 00:
in the record at A9721, where Holland asked the court that if a term needed instruction, the jury should be told that annular means circular.

[00:34:54] Speaker 00:
I think you're right, that we said annular means circular.

[00:34:57] Speaker 00:
So annular rib means circular rib.

[00:35:00] Speaker 00:
And I think our position was circular rib.

[00:35:04] Speaker 00:
And we thought it was undisputed until they bring out this evidence that the defendant is not.

[00:35:10] Speaker 00:
From your expert as to the meaning.

[00:35:13] Speaker 00:
That's right, but they shouldn't be cross-examining an expert in front of the jury about the meaning of a claim term.

[00:35:21] Speaker 00:
They were cross-examining him about the ordinary meaning of the term, which up until that moment had been undisputed because all the parties had agreed that annular rib means circular rib.

[00:35:32] Speaker 00:
I think the plaintiff's expert didn't say that.

[00:35:40] Speaker 00:
Oh, the plaintiff's expert said it basically circular.

[00:35:43] Speaker 00:
I can give you the citation, Your Honor.

[00:35:55] Speaker 00:
Patent is agreed on cross-examination that basically circular structure A10279.

[00:36:00] Speaker 00:
Say that again?

[00:36:04] Speaker 00:
10279.

[00:36:07] Speaker 00:
The plaintiff's expert said

[00:36:09] Speaker 00:
I'm cross-examining men at basically circular structure, forming a radial rib around the outer peripheral.

[00:36:18] Speaker 00:
At A10279, he said basically circular around the outside.

[00:36:31] Speaker 00:
So if it's not proper to argue claim construction before the jury, I respectfully submit it's not proper to cross-examine the other side's expert.

[00:36:39] Speaker 00:
about what claim terms mean in front of the jury, exclusively the providence of the court.

[00:36:47] Speaker 04:
Anything else for Mr. Lynch?

[00:36:50] Speaker 04:
Thank you.

[00:36:50] Speaker 04:
Thank you both.

[00:36:51] Speaker 04:
The case is taken under submission.

[00:36:53] Speaker 04:
That concludes the argued cases for this panel this morning.

[00:36:59] Speaker 00:
All rise.

[00:37:03] Speaker 00:
The Honorable Court is adjourned until tomorrow morning.

[00:37:05] Speaker 00:
It's at o'clock a.m.