[00:00:00] Speaker ?: Thank you very much. [00:00:33] Speaker 05: All rise. [00:00:46] Speaker 04: The United States Court of Appeals of the Federal Circuit is now open and in session. [00:00:51] Speaker 04: God save the United States and its honorable force. [00:00:54] Speaker 03: Please be seated. [00:00:59] Speaker 03: The first case for argument this morning is 15-1329, power integrations versus fear child semiconductor. [00:01:08] Speaker 03: And we all know this is a cross appeal, so we understand you're all reserving your time to see how this works out. [00:01:14] Speaker 03: Whenever you're ready, Mr. Jacobs. [00:01:41] Speaker 06: May it please the court? [00:01:43] Speaker 06: Good morning, your honors. [00:01:45] Speaker 06: Inducement under section. [00:01:47] Speaker 03: Can you hold on one second? [00:01:48] Speaker 03: Just because our clock isn't on. [00:01:51] Speaker 03: Oh, yeah. [00:01:56] Speaker 03: Our time clock is not working. [00:01:59] Speaker 03: I'm sorry. [00:02:01] Speaker 03: Our time clock is not working. [00:02:07] Speaker 05: I'm sorry. [00:02:21] Speaker 03: It's not on. [00:02:24] Speaker 00: Sorry. [00:02:26] Speaker 00: Maybe we don't need it for the first one. [00:02:29] Speaker 05: I'm very circumspect. [00:02:36] Speaker 03: All right, well why don't we just proceed and we'll try to do the best we can. [00:02:39] Speaker 03: Is your clock working? [00:02:40] Speaker 03: It is, Your Honor. [00:02:40] Speaker 03: Okay, well then you're going to tell us when your time is up. [00:02:43] Speaker 03: I will, Your Honor. [00:02:49] Speaker 06: May it please the court. [00:02:52] Speaker 06: Inducement under Section 271B has the most rigorous proof requirements of any of the infringement liability theories that Congress has put forth. [00:03:04] Speaker 06: Now, in this case, Power Integrations did not want to sue direct infringers who were also its own customers, or even to take discovery from its own customers. [00:03:19] Speaker 06: Power Integrations invented a free-floating inducement theory that eliminates the requirement of temporal or causal relationship between inducing acts. [00:03:32] Speaker 03: Well, let's just say hypothetically, you have a global market and you're producing all of your stuff in Germany, and let's assume you know that there's an American patent which reads on to your product. [00:03:47] Speaker 03: and you sell to distributors, and you know they're going to move the product to the United States and sell the product. [00:03:55] Speaker 03: Is that not sufficient for inducement? [00:03:57] Speaker 03: And if it's not, why not? [00:03:59] Speaker 06: That would get you to one act of liability under Lucent, perhaps, Your Honor. [00:04:04] Speaker 06: But the problem is when you read Chumanada, when you read Dynacor, when you read Standard Haven, there's a separate analysis that needs to be formed with regard to damages or the scope [00:04:16] Speaker 06: of the liability. [00:04:18] Speaker 06: And that's where direct infringement becomes extremely important. [00:04:23] Speaker 03: So let's assume there are products being sold that incorporate your client's product in the United States and that that's infringing. [00:04:34] Speaker 03: Why isn't that sufficient for inducement? [00:04:36] Speaker 06: Because you need to link, Your Honor, the specific intent to the Inducing Act. [00:04:43] Speaker 06: So in other words, [00:04:44] Speaker 06: There's a causation requirement. [00:04:46] Speaker 06: And the causation requirement is that a party has knowledge, specific intent, and that they know that their actions. [00:04:53] Speaker 03: OK, so if your client knows that it's far more likely than not that 20% of the products it produces are going to end up in the market in the US, is that not sufficient? [00:05:05] Speaker 06: That is exactly the scenario of Power Integrations 1. [00:05:09] Speaker 06: 20% doesn't get you there because it's plausible that [00:05:13] Speaker 06: It's 20% of consumer electronic products. [00:05:16] Speaker 06: There are multiple chip manufacturers, and there are multiple power supply manufacturers. [00:05:21] Speaker 06: So to level set, this scenario is you have a chip manufacturer who sells a chip in Taiwan or in China. [00:05:27] Speaker 06: They sell them to one of many power supply manufacturers. [00:05:31] Speaker 06: The power supply manufacturers then, again, abroad, sell the power supplies or have a contract with the consumer electronic companies. [00:05:41] Speaker 06: The consumer electronic companies then decide, we're going to send these products to Germany, we're going to send these products to the United States, we're going to send these products to China. [00:05:51] Speaker 06: These are universal power supply chips. [00:05:54] Speaker 06: In other words, they're designed to operate anywhere in the world. [00:05:58] Speaker 06: And so when we had this discussion in the Power Integrations I, when the court there held that there was insufficient evidence of inducement, the scenario came up of, [00:06:08] Speaker 06: You could have twenty percent theoretically, your honor, but you could also have zero. [00:06:12] Speaker 03: But isn't that a matter of calculating damages? [00:06:15] Speaker 03: Yeah, they've got to prove up damages. [00:06:17] Speaker 03: So if you have inducement and they can't prove up that there have been any sales of the infringing product in the US, then they don't get damages. [00:06:27] Speaker 03: But isn't that a damages question and not a liability question? [00:06:30] Speaker 06: That's a great question, your honor. [00:06:31] Speaker 06: The problem that we have here is that liability and damages, as you're pointing out, [00:06:36] Speaker 06: are inextricably intertwined. [00:06:38] Speaker 06: You do not have damages unless you have liability, because the court has said... Well, you can have liability if you identify one direct infringer. [00:06:48] Speaker 03: You might not get any money out of that, or you might get $3 out of that. [00:06:52] Speaker 03: So that's the distinction. [00:06:53] Speaker 03: You need one and only one to establish direct infringement. [00:06:57] Speaker 03: You're right that then when you want to calculate damages, there's got to be for every act of inducement, there's got to be an act of direct infringement. [00:07:04] Speaker 03: But again, isn't one enough for liability and then the rest remainder a question of damages? [00:07:11] Speaker 06: So one is enough for liability. [00:07:14] Speaker 06: Lucent tells us that. [00:07:16] Speaker 06: But then Lucent and other cases tell us in order to determine what the damages are going to be, you have to assess [00:07:24] Speaker 06: The usage. [00:07:25] Speaker 06: You have to assess how many acts of direct infringement. [00:07:28] Speaker 03: I'm sorry to interrupt, but we're not even at damages. [00:07:31] Speaker 03: Judge Stark bifurcated this case, right? [00:07:33] Speaker 03: So we're only deciding here liability. [00:07:38] Speaker 03: So one's enough, right? [00:07:40] Speaker 03: And why was the evidence, therefore, that they put on to the extent we can talk about some of it or whatever? [00:07:47] Speaker 03: I don't want to cross any lines on confidentiality. [00:07:50] Speaker 03: Why was that not sufficient for a jury to reasonably conclude? [00:07:54] Speaker 06: Sure. [00:07:55] Speaker 06: There were three instances of direct infringement that Power Integrations put forth at trial. [00:08:02] Speaker 06: For each of the three chips they were found in the United States, there is no evidence in the record as to when those chips were manufactured. [00:08:11] Speaker 06: There's no evidence as to when those chips were sold. [00:08:15] Speaker 06: There's no evidence of any encouragement or any discussions. [00:08:19] Speaker 06: that related to those chips. [00:08:22] Speaker 06: And so there's no evidence of specific intent. [00:08:25] Speaker 03: Well, I don't understand. [00:08:26] Speaker 03: OK, so let's hone in on that. [00:08:27] Speaker 03: Because I thought our previous discussion established that if they were sold to a distributor and they know that it's infringing in the United States and they know it's likely or possible that that distributor is going to sell the product in the United States, what more do you need? [00:08:47] Speaker 03: What kind of encouragement [00:08:49] Speaker 03: you need to hold your client on the hook? [00:08:52] Speaker 06: Something more than ordinary business activities. [00:08:54] Speaker 06: So what we have here, and I'm talking about the MGM Grugster opinion, what we have here is universal products that are supplied for universal power supplies. [00:09:05] Speaker 06: Manufacturer defendant does not know where any of them go. [00:09:09] Speaker 06: They don't know that they go to the United States, Your Honor. [00:09:11] Speaker 06: They know that they may go to the United States. [00:09:14] Speaker 06: But the law from the Supreme Court is imminently clear. [00:09:18] Speaker 06: looking at Sony, looking at MGM Grokester, looking at a bevy of cases that the capability of infringing is not enough under 271b. [00:09:28] Speaker 06: So, Your Honor, that's what we have here. [00:09:30] Speaker 06: We have a scenario where the causation is never established, where we have products capable of infringing, but there's no evidence that Fairchild knew that the products that ended up in the United States knew they were going to end up there. [00:09:44] Speaker 01: Let me ask you a hypothetical. [00:09:47] Speaker 01: I mean, I think I can agree with you to the extent that in these very complex web of supply chains, there's a lot of widgets being produced by a lot of different people that are getting combined and then they're getting stacked onto yet other widgets and then ultimately distributed around the world. [00:10:06] Speaker 01: And those widgets, you don't know where they're going to end up. [00:10:11] Speaker 01: They could end up in Europe, Japan, United States, and they function [00:10:16] Speaker 01: know, just the same in all those different countries. [00:10:19] Speaker 01: But what if a particular product is highly regulated in every single country and then a place like the United States [00:10:29] Speaker 01: There's some particular technical requirement. [00:10:31] Speaker 01: It will not work in the United States unless it satisfies some specific technical standard. [00:10:38] Speaker 01: Maybe a certain amount of voltage coming out of the socket or something else. [00:10:42] Speaker 01: As a technical matter, it just won't even work here in this country. [00:10:47] Speaker 01: And the United States is unique with that particular attribute. [00:10:52] Speaker 01: And so there's somebody in China that is making this widget. [00:10:58] Speaker 01: is designing that widget so that it will fulfill that technical requirement for it to operate in the United States. [00:11:07] Speaker 01: No other country has that requirement, but the United States does and the company in China knows that and so it makes the product so that it fulfills that US requirement. [00:11:19] Speaker 01: Doesn't that show a particularized intent to get that product into the United States, particularly when the customer that it [00:11:28] Speaker 01: that purchases these widgets also knows that the United States has this unique requirement. [00:11:35] Speaker 01: Judge Chen, I agree that if there is a unique technical requirement that a product would only operate in the United States... No, no, it can operate everywhere else, but the United States has a plus requirement, this additional unique requirement that's only to the United States, and then the Chinese company goes out of its way to make sure that the widget it's producing [00:11:57] Speaker 01: fulfills that additional unique requirement. [00:12:01] Speaker 06: I think if there was evidence of that nature in the record, which there is not, that you'd be getting a lot closer to the causation requirement that we see in Akamai and in Kamel and in that line of cases. [00:12:12] Speaker 06: Here, there's an Energy Star requirement in the United States that has to do with energy efficiency. [00:12:18] Speaker 06: That same standard, Your Honor, has been adopted by many other countries. [00:12:22] Speaker 06: So the same standard applies to many other countries, and consumers require [00:12:27] Speaker 06: our consumers in Asia, that we satisfy compliance with all international standards. [00:12:32] Speaker 01: And that's because what we're designing is international... And here's the trouble that I have, which is when I looked through the sites to the record and I was reading the trial transcript, I didn't see... And I'm trying to put myself in the shoes of the jury and trying to figure out what did they hear. [00:12:51] Speaker 01: OK, and we can't look at extra record evidence. [00:12:54] Speaker 01: We can only go by what did the jury hear. [00:12:56] Speaker 01: I didn't see any specific testimony that said if the product complies with a French energy standard or a Japanese Russian standard, it necessarily also will comply with the United States energy standard such that the United States standard, whatever it is, is entirely superfluous. [00:13:19] Speaker 06: Can I give you a couple of record sites to look at, Your Honor? [00:13:22] Speaker 06: Yeah. [00:13:23] Speaker 06: A16398, A16481, A16524. [00:13:32] Speaker 01: Well, do you want to quote me something? [00:13:36] Speaker 01: Because there were a couple statements that said all these different countries have similar standards. [00:13:42] Speaker 01: And then there was another statement that said [00:13:46] Speaker 01: there was an assertion that Europe and Japan are ahead of the US in terms of energy standards. [00:13:53] Speaker 01: None of those necessarily state that you fulfill one, you necessarily fulfill the United States one. [00:14:00] Speaker 01: In fact, there's other testimony that says [00:14:04] Speaker 01: from Chang, you want your products to comply with the US spec, with the China spec, with the Europe spec, with the Japanese spec, you name it. [00:14:16] Speaker 01: And so what the jury heard was there's a lot of different specs, there's a lot of different standards, and you want your product to meet all those standards because you want to push your product globally into every single market possible that's on the planet, including the United States. [00:14:32] Speaker 06: A corrected site, A16778, shows that Energy Star has been adopted in many different countries, Your Honor, and I agree with you. [00:14:42] Speaker 01: My point with regard to how the law has... 16778 is also the same page where Chang goes on and says there's all these different specs for each individual country, and they have to make sure that their designs comply with each country's spec. [00:14:56] Speaker 06: So, again, we're talking about the capability of infringement. [00:15:00] Speaker 06: These products do not necessarily infringe. [00:15:03] Speaker 06: And so you have to, on an instance by instance scenario, there were 171 customers that were alleged to have used these chips in an infringing manner. [00:15:14] Speaker 06: Now again, how would you do that? [00:15:16] Speaker 06: You would go to the customers, the end users, Samsung for example, taking power one, and say, how many products did you send to the United States? [00:15:25] Speaker 06: And if you could then link the knowledge of Fairchild and encouragement, you would then have inducement. [00:15:31] Speaker 06: But to your point, what the jury was told here, Your Honor, is that they could find inducement even if the encouraging acts did not result in infringement. [00:15:43] Speaker 06: That was 2012. [00:15:44] Speaker 06: We know that Akamai says that is wrong as a matter of law. [00:15:48] Speaker 01: Sorry, are you talking now about the jury instruction? [00:15:51] Speaker 01: I am, Your Honor. [00:15:52] Speaker 06: And so they were also told, Your Honor, this is the most troubling part, that inducement under 271B could exist even if the encouragement by Fairchild was never received. [00:16:04] Speaker 06: So the total breaking causation, this is what was advanced by Power Integrations. [00:16:10] Speaker 06: They advanced this instruction because they knew they did not have the evidence of direct infringement. [00:16:16] Speaker 06: And to your question, Chief Judge Post, what's the problem? [00:16:20] Speaker 06: The problem is the Seventh Amendment. [00:16:22] Speaker 06: We cannot go back to a second jury and ask the second jury, we have one finding of liability that involves one product. [00:16:32] Speaker 06: It involves a single sale. [00:16:36] Speaker 06: We can't ask the second jury how broad is the scope of infringement and what should the damages number be, because they'll have to do the job that the first jury should have done, which is to identify who the direct infringers were, who were actively induced. [00:16:50] Speaker 01: Maybe damages will only be $2, then. [00:16:53] Speaker 06: If the court were to remand with the evidence being restricted to the isolated acts of direct infringement only, [00:17:01] Speaker 06: That might be an appropriate solution here. [00:17:04] Speaker 06: However, our point with regard to that, Your Honor, is we don't know the date or the activities. [00:17:10] Speaker 06: So again, specific intent under 271B requires more than this capability of infringement. [00:17:17] Speaker 06: And that's all we have here. [00:17:19] Speaker 06: Your Honor, I am at my time. [00:17:21] Speaker 06: Subject to any questions that the court may have, I will self-police. [00:17:25] Speaker 06: Give us a moment. [00:17:27] Speaker 01: There's so many issues here. [00:17:29] Speaker 01: Oh, many, many issues. [00:17:34] Speaker 01: Can you say something about the 605 patent and what's your understanding of law of anticipation? [00:17:43] Speaker 01: If a prior art reference, the operation of a prior art reference meets the claim limitations sometimes, but then other times when a prior art reference is [00:17:58] Speaker 01: the product is operating, it doesn't meet all the claim limitations. [00:18:04] Speaker 01: Does that count as a 102 anticipation reference? [00:18:07] Speaker 06: It does, Your Honor. [00:18:07] Speaker 06: As long as you satisfy with a single reference, if we're talking 102A, all of the elements, the fact that in certain other circumstances, you don't satisfy all of the elements, you would still have a 102 anticipation [00:18:24] Speaker 06: If you can establish that in some circumstances, it does do that. [00:18:27] Speaker 06: And that was the evidence of record here. [00:18:30] Speaker 06: Dr. We provided that evidence. [00:18:33] Speaker 06: He put that evidence forward. [00:18:34] Speaker 06: And it was largely undisputed. [00:18:36] Speaker 06: Dr. Kelly [00:18:37] Speaker 06: the expert for the plaintiffs, largely acknowledged that this threshold would increase during the whole process of startup. [00:18:46] Speaker 06: So he largely acknowledged that the elements were there. [00:18:49] Speaker 01: What about that screenshot from the oscilloscope where it looked like the current was flatlining across during the cycle? [00:18:57] Speaker 01: Do you know which figure I'm talking about? [00:19:01] Speaker 06: I think that was just a demonstrative that was fake. [00:19:04] Speaker 06: I don't think it even made its way into evidence, Your Honor. [00:19:07] Speaker 06: That was not from the prior art. [00:19:09] Speaker 06: So that wasn't something that I'm remembering. [00:19:13] Speaker 06: I just remember it was a demonstrative. [00:19:16] Speaker 06: I don't remember it as being in any way contradicting the fact that all of the elements were found in the mage reference. [00:19:23] Speaker 06: The mage reference lays out each and every one of the elements. [00:19:27] Speaker 06: And that is why 102 should have been found as a matter of law, Your Honor. [00:19:35] Speaker 03: Okay, thank you, and we'll restore your three minutes for rebuttal. [00:19:37] Speaker 03: Thank you, Your Honor. [00:19:46] Speaker 02: Good morning. [00:19:46] Speaker 02: May it please the Court, I'd like to respond briefly on an inducement and then get to the 972 claim construction issue, if I may. [00:19:55] Speaker 02: First of all, on inducement and sort of what the legal test, the legal standard is, power integrations didn't invent anything. [00:20:02] Speaker 02: If anything, Fairchild is contending for a rule that is not supported by this court's cases and has never been applied to our knowledge before. [00:20:10] Speaker 02: It's actually striking [00:20:11] Speaker 02: Neither side can find a case that says anything like, there has to be a direct connection between a given inducing act and a specific act of direct infringement by a specific customer. [00:20:22] Speaker 02: No case says that. [00:20:23] Speaker 02: And in fact, as we cited in our brief, there are at least three cases of this court that make clear that is not the standard. [00:20:30] Speaker 02: Lucent is the poster child for that, of course. [00:20:34] Speaker 03: And Lucent not only- You're telling us that the last two sentences [00:20:40] Speaker 03: in the jury instruction were comported with current law with law? [00:20:43] Speaker 03: Absolutely. [00:20:44] Speaker 03: Absolutely. [00:20:45] Speaker 02: All the last two sentences of the jury instruction say in context is you don't have to have a direct causal connection between the inducing acts and the direct infringement that results from those acts. [00:21:00] Speaker 01: Well, are you trying to say that we should interpret these two sentences as saying that you can prove [00:21:09] Speaker 01: induced infringement by circumstantial evidence? [00:21:12] Speaker 01: Yes. [00:21:13] Speaker 01: Because I think it's a little too much to say that an alleged inducer can engage in a whole bunch of activities in a dark room all by himself and then all of a sudden there happens to be direct infringement on the other side of the planet and then we have, voila, liability for induced infringement. [00:21:34] Speaker 01: Certainly true. [00:21:36] Speaker 01: Can you clean that up for me exactly? [00:21:39] Speaker 01: These two sentences could be read to mean that. [00:21:43] Speaker 02: In isolation, the sentences can be misread, but of course they're at the very end of a fulsome instruction on inducement that actually begins by telling the jury that the inducer has to have taken some action intending to encourage or assist actions by others with knowledge and awareness and then use by others infringes. [00:22:06] Speaker 02: It is viewed in the context of the instruction overall. [00:22:08] Speaker 03: I don't understand. [00:22:09] Speaker 03: I think that doesn't that summarize what Judge Chen was just talking about? [00:22:12] Speaker 03: You're in your room by yourself, and you do this, and nobody else hears you, and that's sufficient to establish inducement, as long as there's some directive from you. [00:22:23] Speaker 02: Well, I don't think so, Your Honor. [00:22:24] Speaker 02: With all due respect, the first requirement of the jury instruction here is encourage or assist actions by others, not in a dark room in isolation, by others. [00:22:34] Speaker 02: And this court's case is Dynacor is really, I think, the best. [00:22:38] Speaker 03: Yeah, but the last two sentences that we're talking about cabin the first by the saying, however, and then it goes on to clarify. [00:22:46] Speaker 03: So whatever you take away from the beginning and we assume that that portion of the instruction is a correct statement of the law, that doesn't override the sentences. [00:22:58] Speaker 03: In fact, the last two sentences that we're struggling with that we think raise some question, however, [00:23:04] Speaker 03: they're amending whatever was said before. [00:23:06] Speaker 03: So I don't understand. [00:23:07] Speaker 03: If your point is that if you read it together, the first stuff overcomes the problems with the last two sentences. [00:23:14] Speaker 02: I don't see that. [00:23:15] Speaker 02: Well, I'm not actually saying that there are any problems with the last two sentences. [00:23:19] Speaker 02: What I'm saying is if you read them together with what comes before, it's a fair statement of the law. [00:23:25] Speaker 02: And I don't have any problem with the last two sentences. [00:23:27] Speaker 02: In fact, the last sentence in particular is almost a straight paraphrase from the Rico case. [00:23:33] Speaker 02: which explicitly says the inducing acts need not even have been communicated to the alleged direct infringement. [00:23:40] Speaker 03: Yeah, but if you look at RICO, the statement that is taken in the context of the narrow question of whether there was circumstantial evidence of specific intent and whether that could include unsuccessfully communicated encouragement. [00:23:55] Speaker 03: I don't think that statement went to what we're looking at here. [00:24:01] Speaker 03: I just don't. [00:24:03] Speaker 03: Am I wrong about what context Rico used that? [00:24:06] Speaker 02: Rico made the statement in the context of intent. [00:24:08] Speaker 02: That is true. [00:24:10] Speaker 03: And so it's unassailable that that's true. [00:24:13] Speaker 03: Circumstantial evidence of specific intent can include unsuccessfully communicated encouragement. [00:24:18] Speaker 02: But it's also true, again, look at Lucent, look at Bill of Lading, those two cases, that there is no requirement that the inducing acts [00:24:28] Speaker 02: in fact be linked to a specific act, be linked to a specific infringer. [00:24:32] Speaker 02: That was really the whole issue with LUSM, in fact, was you had a category of customers who were being induced by the infringer, the defendant who got sued, and there were inducing acts that were proved, and it was reasonable in that case to infer that at least one infringement had happened somewhere by someone, unidentified, with no direct linkage at all. [00:24:54] Speaker 02: And that is really the law on inducement. [00:24:56] Speaker 02: Bill of Lading picked up on Lucent and said, yes, that is true. [00:25:01] Speaker 02: The parties can be unknown. [00:25:03] Speaker 02: It can be proved by circumstantial evidence. [00:25:05] Speaker 01: But just so I understand your theory, there has to be some causal link as a theoretical matter at a minimum between the actions that the inducer takes and the ultimate direct infringement. [00:25:18] Speaker 01: Correct. [00:25:18] Speaker 01: Is that the case? [00:25:19] Speaker 01: Yes, that is the case. [00:25:20] Speaker 01: So then maybe what you're really trying to say is that [00:25:23] Speaker 01: What the jury needs to conclude is that there's a reasonable inference that can be made that all these actions that are occurring over here in Asia, there is a causal link between those actions and the ultimate direct infringement that occurs in this country. [00:25:40] Speaker 01: Correct. [00:25:40] Speaker 01: And that's why... But these two sentences don't say that. [00:25:44] Speaker 02: These two sentences in isolation don't say that. [00:25:47] Speaker 02: I agree. [00:25:48] Speaker 02: But I also don't think that they erase all requirements or some relationships. [00:25:54] Speaker 02: You know, the first sentence that says the infringement need not have been actually caused by the party's actions. [00:26:00] Speaker 02: That's a true statement. [00:26:01] Speaker 02: They don't have to have been actually caused by the specific inducing acts that we're talking about. [00:26:07] Speaker 02: That's clear in the cases I cited. [00:26:09] Speaker 02: It's clear in other cases. [00:26:11] Speaker 02: I'd like to direct you, Your Honors, to Dynacor as well, which uses this phrase related to, right? [00:26:19] Speaker 02: So Judge Chen, your dark room example would not make it. [00:26:22] Speaker 02: It would not satisfy. [00:26:23] Speaker 02: There has to be some relationship between the inducing acts and the ultimate direct infringement. [00:26:28] Speaker 02: Yes, we don't dispute that. [00:26:30] Speaker 02: We prove that in spades. [00:26:32] Speaker 02: This is not a dark room case. [00:26:34] Speaker 02: This is a case where Fairchild went through a very substantial amount of effort to target the US and to make sure these chips came to the US. [00:26:45] Speaker 03: And actually, in that regard, Council made a statement that... What's your best... I mean, I'm not sure what we can talk about when we can't talk about, but what's the best evidence? [00:26:53] Speaker 03: It seems to me, I mean, there might be inferences drawn. [00:26:56] Speaker 02: There is... Again, this is all in the brief. [00:27:00] Speaker 02: There are four or five specific examples of targeting U.S. [00:27:04] Speaker 03: customers, specifically targeting... Can I ask you, hypothetically, if you're producing something in Germany, and you're selling it to distributors, and there's a long chain of people, [00:27:15] Speaker 03: And it's theoretically possible that some of these products may end up going to the US. [00:27:22] Speaker 03: But there's no specific targeting of the US market whatsoever. [00:27:26] Speaker 03: But there might be some knowledge. [00:27:28] Speaker 03: I mean, if asked, you might say, well, I don't know. [00:27:30] Speaker 03: One of these distributors probably sells something in the US. [00:27:35] Speaker 03: Is that sufficient? [00:27:36] Speaker 02: If it's only knowledge, it's not sufficient. [00:27:39] Speaker 02: in your hypothetical? [00:27:41] Speaker 03: Well, you know about the patent. [00:27:43] Speaker 03: You know that your product infringes the patent. [00:27:46] Speaker 02: Yeah, and I think they're probably... That it's not sufficient. [00:27:48] Speaker 02: If all there is is knowledge that it might end up in the U.S., I think that's not sufficient. [00:27:54] Speaker 02: But of course, that's not this case, right? [00:27:56] Speaker 02: I mean, again, we can't, I think, cite with specificity Fairchild's executives admitted [00:28:02] Speaker 02: They knew for a fact infringing products were coming to the U.S. [00:28:05] Speaker 02: We found infringing products in the U.S. [00:28:08] Speaker 02: Fairchild encouraged... So if they know that... Okay, so not... I thought you said knowledge isn't enough. [00:28:13] Speaker 02: So you're saying knowledge is enough? [00:28:15] Speaker 02: No, no. [00:28:15] Speaker 02: I'm sorry. [00:28:16] Speaker 02: Not knowledge alone. [00:28:17] Speaker 02: They intended for those products to come to the U.S. [00:28:20] Speaker 02: and they took a number of affirmative acts to encourage them coming to the U.S. [00:28:25] Speaker 02: like targeting U.S. [00:28:26] Speaker 02: customers, like indentifying customers. [00:28:29] Speaker 02: Specifically, they're indentifying customers in Asia for U.S. [00:28:33] Speaker 02: patent infringement in response to customers who came to Aztec. [00:28:36] Speaker 02: The example is a great one. [00:28:39] Speaker 02: After Power Integration sues Fairchild, Aztec comes to Fairchild and says, hey, we needed indemnity because we are sending your products to the U.S. [00:28:48] Speaker 02: And Fairchild, at that time SG, says, [00:28:51] Speaker 02: Okay, we'll give you the indemnity. [00:28:53] Speaker 02: I mean, it doesn't get any more direct than that. [00:28:55] Speaker 01: We've never said an indemnification provision alone is enough to establish proof of inducement, have we? [00:29:04] Speaker 02: I don't think there's a case that says indemnity alone is enough. [00:29:07] Speaker 02: True, there's this MEMC case that Fairchild cites [00:29:12] Speaker 02: That's a very different indemnity if the court looks at the indemnities. [00:29:14] Speaker 02: That's a general indemnity that's not particular to any particular products or country. [00:29:22] Speaker 02: The Aztec indemnity is very different, number one, and particularly when you consider the context in which this indemnity arose. [00:29:28] Speaker 02: It was driven clearly by this litigation, that the jury heard about the timing of it in the context in which it was arose. [00:29:35] Speaker 02: And then the other thing I would say, Judge Prost, is in terms of specific evidence of encouragement, [00:29:41] Speaker 02: is this regulatory point that Judge Chen raised. [00:29:44] Speaker 02: I mean, you've got products that these are highly regulated products. [00:29:48] Speaker 02: They're power supply chips. [00:29:50] Speaker 02: And they have to comply with Energy Star in the US. [00:29:52] Speaker 02: And actually, there's even a California standard, the California Energy Commission's CBC standard. [00:29:58] Speaker 02: And there's lots of evidence in the record, again, cited in the brief about Fairchild, customers telling Fairchild, we have to meet those regulations. [00:30:06] Speaker 02: Fairchild saying in substance, okay, we'll help. [00:30:11] Speaker 02: Our chip can meet those regulations when used in a power supply. [00:30:15] Speaker 02: And that's, again, a clear link to, we want your stuff to come to the US. [00:30:19] Speaker 03: All you have is some sort of encouragement and some of the sales information you have in the record in terms of emails that they were trying to promote sales in the US. [00:30:28] Speaker 03: Doesn't there have to be a linkage between the actual acts of direct infringement being a result of those sales efforts? [00:30:37] Speaker 03: or not. [00:30:37] Speaker 02: It depends on what you mean by direct. [00:30:39] Speaker 02: I think if by direct you mean what Fairchild is seeking. [00:30:43] Speaker 03: I mean, if the purchasers you found in the US that you identified as direct infringers were not targeted, were not the subject of all of those sales endeavors that Fairchild had in the US, is that a problem for you? [00:30:58] Speaker 02: No, I don't think it is because of the circumstantial evidence point. [00:31:01] Speaker 02: This just comes back to what Fairchild's argument really is, I think, which is you've got to have [00:31:07] Speaker 02: direct evidence, not just circumstantial, direct evidence of a direct link between a specific inducing act and a specific customer. [00:31:15] Speaker 02: I mean, that breaks down at every level when it's articulated in that way. [00:31:19] Speaker 01: But just to follow up on the chief's point, is it a dry hole for you if you have evidence that Fairchild was trying to make sales with very specific certain American companies, but then no sale was ever made and so therefore there was no direct [00:31:35] Speaker 01: infringement that resulted from those attempted promotion efforts? [00:31:40] Speaker 02: Well, again, it depends on whether your question is hypothetical or tied to this case. [00:31:45] Speaker 02: In this case, the Fairchild's activities were the same with respect to all customers. [00:31:51] Speaker 02: I mean, this is not a case where they did some sort of activities for some customers and not for others. [00:31:57] Speaker 01: Right, but right now we just have in the record very limited evidence of direct infringement. [00:32:03] Speaker 01: Right? [00:32:03] Speaker 01: A few isolated sales, and then maybe some distributor was selling chips. [00:32:09] Speaker 01: But other than that, all these other examples of targeted efforts at certain companies to make sales with them, there wasn't any additional evidence in the record that said, and they made those sales, and those sales were in the United States. [00:32:25] Speaker 02: So I would say two things. [00:32:26] Speaker 02: Number one, there are actually four examples. [00:32:30] Speaker 02: Fairchild says three. [00:32:31] Speaker 02: There are four examples. [00:32:33] Speaker 02: of direct evidence of direct infringement in the U.S. [00:32:36] Speaker 02: by customers, HP, Acer, Samsung, Digikey. [00:32:40] Speaker 02: The HP example, and even if you apply the most rigorous test you can possibly imagine, HP was selling printers with printer adapters in the U.S. [00:32:51] Speaker 02: made by Aztec, who was the very company that Fairchild had identified against patent infringement as a result of litigation between these parties. [00:33:00] Speaker 02: So that is a direct [00:33:02] Speaker 02: one-for-one relationship and at least one example. [00:33:05] Speaker 02: The second thing I would say, Judge Chen, is there actually is circumstantial evidence of many other customers to whom sales were made. [00:33:12] Speaker 02: Apple, LG, Emerson, Sony, Dell, Lenovo, Nintendo, Motorola, Nokia, IBM, these are all cited in the brief. [00:33:23] Speaker 01: And the reason... Are you going to be able to rely on those purported sales that weren't actually [00:33:31] Speaker 01: Deemed to be sales when it comes to damages? [00:33:34] Speaker 01: Bifurcated case, right? [00:33:37] Speaker 02: You're going to do discovery on damages? [00:33:39] Speaker 02: Yes. [00:33:40] Speaker 02: This is another artifact of the case being bifurcated. [00:33:44] Speaker 02: We did not receive customer by customer sales data from Fairchild until 10 days before the trial started. [00:33:55] Speaker 02: And so those issues will be vetted in the damages portion of the case. [00:34:00] Speaker 02: And so my answer to your question is yes, it may well turn out we know that they were induced and the damages, the sales data will we think show that in fact sales were made in the U.S. [00:34:12] Speaker 02: to those companies. [00:34:14] Speaker 03: Can you want to turn to your question? [00:34:16] Speaker 02: Yeah, I'd like to. [00:34:17] Speaker 02: I wanted to make sure your questions were answered so quickly. [00:34:21] Speaker 02: 972 claimed construction. [00:34:24] Speaker 02: Obviously we feel this is a fairly straightforward issue and means and. [00:34:29] Speaker 03: Do you want to touch on what I'd be more interested in, the DOE question? [00:34:36] Speaker 03: That's the 972? [00:34:37] Speaker 03: Yes. [00:34:38] Speaker 02: So on doctrine of equivalence, the issue there is fundamentally whether Dr. Wee's testimony is sufficient as a matter of law to sustain the verdict. [00:34:49] Speaker 02: And this court, you're aware of what the substance of the testimony is. [00:34:54] Speaker 02: It's a single question and answer, completely conclusory. [00:34:59] Speaker 02: analysis of any limitation in the... What about the vitiation issue? [00:35:05] Speaker 02: Well, that's a separate reason why we think the verdict on DOE can't stand. [00:35:11] Speaker 02: I mean, you either have distinct signals or you don't. [00:35:14] Speaker 02: And again, this court has issued a number of opinions saying, you know, when you have a term that is a black or white term, you have it or you don't, you can't use doctrine of equivalence to basically erase that term. [00:35:28] Speaker 02: The Honda case, plurality can't be equivalent to one. [00:35:32] Speaker 02: The Moore USA case, minority can't be equivalent to majority. [00:35:37] Speaker 02: The Augme Technologies case, embedded code can't be equivalent to linked code. [00:35:43] Speaker 02: There's any number of these examples where the court has said, look, if the claim requires a specific thing, and that thing does not admit of degrees or variation, [00:35:56] Speaker 02: you can't erase it by DOE. [00:35:58] Speaker 02: And here we have it's distinct or it's not distinct. [00:36:00] Speaker 01: So just hypothetically, any time a patent claim says device one does function one and device two does function two and the accused product has just one device that performs both function one and two, then therefore there can't be, as a matter of law, DOE because that's officiation? [00:36:17] Speaker 02: No. [00:36:18] Speaker 02: I think it depends very specific to how the claim is written. [00:36:21] Speaker 02: There are cases that say, [00:36:23] Speaker 02: If you have, for example, a means plus function claim that may have multiple elements, it's OK to find in the infringing device perhaps one structure that performs the function of multiple elements. [00:36:37] Speaker 02: So it depends very much on the term used. [00:36:39] Speaker 02: But again, when you have a case that uses a term like one or majority or distinct, I mean, it's either distinct or it's not. [00:36:50] Speaker 02: Is it sort of distinct? [00:36:52] Speaker 02: Distinct in part, I mean, this is one of those terms that we submit would be vitiation. [00:36:58] Speaker 02: If I could just finish my answer, Judge Schall, to your question on DOE, the other problem that they have here, of course, is that their expert testimony is woefully deficient under any number of this court's cases. [00:37:13] Speaker 02: The most recent case was Axo, where, in fact, if you compare, if you put the expert testimony in the Axo case, [00:37:22] Speaker 02: a KZO. [00:37:25] Speaker 02: Side by side with Dr. Wee's testimony, it's actually striking how similar and how conclusory it's one paragraph, it's one answer. [00:37:34] Speaker 02: There it is, and this court said, uh-uh, that is not sufficient to create a factual issue and to sustain a verdict under DOE. [00:37:42] Speaker 02: The other case I would point you to is the Ogmi case, where there was even more expert testimony. [00:37:49] Speaker 02: There were probably a half a dozen [00:37:51] Speaker 02: paragraphs in a declaration, but there was no analysis of the way. [00:37:56] Speaker 02: It was a function-way result analysis, just like here. [00:37:59] Speaker 02: There was no analysis of the way, and the court said, that's not enough. [00:38:02] Speaker 02: We recognize its expert testimony, its conclusory. [00:38:06] Speaker 02: That can't support a DOE verdict. [00:38:08] Speaker 02: So either way, the DOE verdict has to be reversed. [00:38:13] Speaker 02: Thank you. [00:38:14] Speaker 01: Before we go, I'm a little concerned about the 605 patent and the mage. [00:38:22] Speaker 01: reference. [00:38:23] Speaker 01: Could you speak to that? [00:38:24] Speaker 01: The whole question of whether occasional anticipation is anticipation? [00:38:32] Speaker 02: I think as you phrased it, the answer to that question is yes, but factually that isn't what happened here. [00:38:38] Speaker 02: If they can show all the elements present, that's enough. [00:38:43] Speaker 02: But this was a classic battle of the experts. [00:38:46] Speaker 02: Their experts said that the element is there. [00:38:50] Speaker 02: This required [00:38:51] Speaker 02: a variable current limit that in fact varied during the on time of the switch. [00:38:58] Speaker 02: It was a very specific requirement. [00:38:59] Speaker 01: Did Dr. Kelly say that during the startup time of MAGE is also on time? [00:39:06] Speaker 02: He said yes, that is during the time that the switch is on, but he also said it doesn't vary. [00:39:14] Speaker 02: And this was the demonstrative that he showed. [00:39:17] Speaker 02: He actually took these specific parameters in the MAGE circuit [00:39:21] Speaker 02: He analyzed them. [00:39:23] Speaker 02: He graphed them. [00:39:24] Speaker 02: And he testified about it. [00:39:26] Speaker 02: He showed the jury the demonstrative. [00:39:28] Speaker 02: And he said, it's not varying during the on time of the switch. [00:39:32] Speaker 02: It just isn't. [00:39:33] Speaker 02: Dr. We disagreed. [00:39:35] Speaker 02: He's entitled to disagree. [00:39:36] Speaker 02: It's a classic fact issue that the jury resolved in our favor. [00:39:39] Speaker 02: And substantial evidence, I think, is more than present on that issue. [00:39:49] Speaker 03: OK. [00:39:50] Speaker 03: We'll restore two minutes of rebuttal if you need it for your cross of the hour. [00:39:56] Speaker 05: Thank you. [00:40:06] Speaker 06: The discussion regarding inducement with the Court and Power Integrations Council highlights the problems that we have in this scenario. [00:40:16] Speaker 06: They're trying to take [00:40:18] Speaker 06: the same torsious activity, that's their argument, and apply it across 171 different customers. [00:40:25] Speaker 06: In other words, if we prove that AT&T was induced and you had the same type of high-level torsious activities regarding Sony, Sony was necessarily induced. [00:40:36] Speaker 06: That is not the law. [00:40:39] Speaker 06: Dynacore says a party must tie their claims of inducement damages to identified instances of direct infringement. [00:40:48] Speaker 06: says, defendant's liability for direct infringement must relate to identified instances of direct infringement. [00:40:58] Speaker 06: Glenn Ayers is very instructive on this case, because Glenn Ayers says damages assessed for indirect infringement normally will be the same as damages that would be assessed had the patentee sued and obtained damages and a judgment from [00:41:16] Speaker 06: customers. [00:41:17] Speaker 01: What about a case like Grokster which is a copyright case obviously but the idea was there are millions and millions and millions of unauthorized downloads of copyrighted material using Grokster's technology and then the whole question was okay did Grokster take some actions to induce all of those hundreds of millions of downloads and you know I don't think it was required of the copyright holder to prove that [00:41:43] Speaker 01: for each of those individual direct infringers, Grokster successfully communicated and induced all those college kids to do those downloads. [00:41:59] Speaker 01: Right? [00:41:59] Speaker 06: Grokster is a different scenario in that Grokster intentionally targeted Napster customers. [00:42:08] Speaker 06: So in other words, they knew that Napster was being used in the United States. [00:42:12] Speaker 06: And they actually sent emails to entities in the United States and said, if you're looking for another file sharing system, you may want to consider what Grogster offers. [00:42:27] Speaker 06: There's no argument with regard to the causation linkage when you look at Grogster. [00:42:32] Speaker 06: Now, if you go back and you look at Sony, the Supreme Court's opinion in Sony, they find there that there is an inadequate causation connection. [00:42:42] Speaker 06: The evidence that existed in Sony at the Supreme Court is very, very similar to what we have here. [00:42:49] Speaker 06: We have scenarios where products may infringe if you prove that, and they may also not infringe if they're sold in Asia and if they stay in Asia exclusively. [00:43:00] Speaker 06: So the Sony case provides the scenario where you do not have contrived or inducement [00:43:07] Speaker 06: The Broxer case is different because you have that direct reach out, that direct causation. [00:43:11] Speaker 01: I guess we have testimony here that the customers of Fairchild wanted universal chips, right? [00:43:20] Speaker 01: That met all regulations and laws of every country, including the United States. [00:43:27] Speaker 06: It's just like the Betamax players, I hate to go back to Betamax, Your Honor, in the Sony case at the Supreme Court. [00:43:36] Speaker 06: They're capable of infringing. [00:43:37] Speaker 06: That does not get you there. [00:43:39] Speaker 06: What Grokster tells us is, find the causation. [00:43:42] Speaker 06: Find the direct connection to the United States. [00:43:45] Speaker 06: And that's what we do not have here. [00:43:47] Speaker 06: That is the fundamental failing of evidence. [00:43:51] Speaker 06: Just because you know that it's possible. [00:43:53] Speaker 06: that your product will come in the United States. [00:43:55] Speaker 06: And you might design them so that if they do come in the United States, they're satisfying an energy standard here. [00:44:01] Speaker 06: That does not show the specific intent to cause another to infringe directly. [00:44:07] Speaker 06: And that's the problem with the jury instruction that Chief Judge Prost pointed out. [00:44:12] Speaker 06: In fact, the jury instruction here says, if you encouraged, if you just thought about an encourage, it doesn't even matter whether that encouragement was received. [00:44:22] Speaker 06: And it doesn't matter that infringement took place. [00:44:25] Speaker 06: Now, we know. [00:44:26] Speaker 06: Remember, this jury instruction, Judge Stark's mindset, was given in 2012. [00:44:33] Speaker 06: So global tech had just come out. [00:44:35] Speaker 06: It was before Power Integrations won. [00:44:38] Speaker 06: Judge Stark asked me during the charging conference, [00:44:41] Speaker 06: Willpower integrations won, because I told him the same inducement problem and causation existed there. [00:44:46] Speaker 06: He asked me, will that save me? [00:44:48] Speaker 06: Will that save me, the opinion? [00:44:50] Speaker 06: And we told him the opinion was a few months out, and so I wasn't going to get him there. [00:44:53] Speaker 06: But at that time, the law was that you could satisfy 271B without proving direct infringement. [00:45:02] Speaker 06: The Supreme Court changed that and then clarified that in common. [00:45:06] Speaker 06: All of those changes demonstrate the error [00:45:10] Speaker 06: in the jury instruction and the error in the finding that inducement exists here because we do not have the causal connection that was required. [00:45:20] Speaker 06: Subject to any questions that the court might have on the inducement issue, I'll turn to quickly the 972 and I'll just address the doctrine of equivalence section of that, Your Honor. [00:45:29] Speaker 06: Thank you. [00:45:33] Speaker 06: we should understand that there were two different non-infringement positions that were put forward by Dr. Wigg, the expert for the defendant. [00:45:44] Speaker 06: The distinct signals, non-infringement position was one. [00:45:47] Speaker 06: But it's very possible that the jury accepted the other non-infringement position. [00:45:53] Speaker 06: So that's what Judge Stark said when you read his JMAW ruling. [00:45:58] Speaker 06: And there's no reason to question Judge Stark's decision on that. [00:46:02] Speaker 06: It hasn't been demonstrated. [00:46:04] Speaker 06: There was no special verdict form or anything of that nature to indicate which. [00:46:08] Speaker 01: For me, I only saw one theory. [00:46:10] Speaker 01: I didn't understand how, I guess, Judge Stark was able to identify two theories. [00:46:18] Speaker 01: The theory was there's only one feedback signal. [00:46:21] Speaker 06: So the second theory was that the second feedback signal was not a feedback signal at all. [00:46:30] Speaker 06: The two positions were the second feedback signal is not a feedback signal. [00:46:35] Speaker 06: Therefore, the other position was the two signals identified by Dr. Wi are not distinct. [00:46:41] Speaker 06: Those were the two different non-infringement positions that Dr. Kelly put forward at trial. [00:46:47] Speaker 06: It could be that the jury said, OK, we're going to find literally those two different signals are not distinct. [00:46:54] Speaker 06: Dr. De Quivalent still is satisfied because it's close enough to being a feedback signal. [00:47:01] Speaker 06: Dr. We identified the feedback signal. [00:47:03] Speaker 06: So he put that testimony into the evidence. [00:47:07] Speaker 06: And it could be that the jury accepted his opinion on that. [00:47:10] Speaker 06: That was a battle of the experts, essentially. [00:47:12] Speaker 06: That's the only point that I have with regard to that. [00:47:15] Speaker 06: With regard to the vitiation point, [00:47:19] Speaker 06: When you read claim seven and read dependent claim eight in context with claim seven, you could see that you have a claim here where you have different current sensing and you have different requirements. [00:47:35] Speaker 06: Claim eight clarifies claim seven. [00:47:38] Speaker 06: And as a matter of law, it is not vitiated when you read in context the dependent claim with the independent claims. [00:47:44] Speaker 06: And finally, with regard to the sufficiency, [00:47:48] Speaker 06: of the testimony put forward on Doctor of Equivalence by Dr. Wigg. [00:47:54] Speaker 06: Judge Stark, in his Jamal ruling, concluded that this was a scenario that was very similar to the Pace versus Toyota scenario, where you can look to the testimony that's provided regarding liability, provided regarding the functioning of the circuitry, things of that nature. [00:48:09] Speaker 06: The jury heard all of that. [00:48:11] Speaker 06: And they can use that in arriving at their Doctor of Equivalence decision. [00:48:16] Speaker 06: So the cases that [00:48:18] Speaker 06: Council cited are distinguishable because Judge Stark looked to the record as a whole and concluded that under Pace v. Toyoda there was enough here. [00:48:27] Speaker 01: Is it enough for an expert to just point to an output line and say that's a feedback signal? [00:48:33] Speaker 06: I would say that he would also have to describe the way and the result at some level that that was serving as a feedback signal. [00:48:41] Speaker 06: And if he did so, and if he offered the opinion that there was insubstantial differences, [00:48:46] Speaker 06: that would get you there. [00:48:48] Speaker 06: And he does that when you look at the totality of his testimony. [00:48:54] Speaker 06: They're essentially criticizing his boilerplate function way result analysis, saying there wasn't enough there. [00:49:01] Speaker 06: But there was a lot of other discussion throughout the trial. [00:49:04] Speaker 06: The doctrine of equivalence portion was at the very, very end of extensive testimony, Your Honor. [00:49:09] Speaker 01: Didn't the inventor, Mr. Yang, in a couple of different places during his testimony really highlight the importance [00:49:15] Speaker 01: of the two feedback signals to do the regulation? [00:49:19] Speaker 06: I think that he did talk about that as being an important feature. [00:49:24] Speaker 06: Like a moment of truth in the middle of the night, right? [00:49:28] Speaker 06: It was. [00:49:29] Speaker 06: On a cold winter night, if I recall. [00:49:30] Speaker 06: Right. [00:49:31] Speaker 06: So it was clearly important, Your Honor, but Dr. We showed in the infringing products the two distinct signals. [00:49:41] Speaker 06: So he showed it, he talked about it, he testified to that, and the jury concluded that there was an equivalent there. [00:49:48] Speaker 06: So there's no reason to say that there's insufficient evidence as a matter of law. [00:49:53] Speaker 06: This essentially was a battle of the experts, and the jury chose to accept the testimony of Dr. Wi with regard to the equivalent nature of those features. [00:50:04] Speaker 06: Thank you. [00:50:04] Speaker 06: Thank you very much, Your Honor. [00:50:10] Speaker 02: Thank you. [00:50:11] Speaker 02: The only cross-appeal issue addressed was doctrine of equivalence on 972. [00:50:15] Speaker 02: I'll just say one thing, and that is, [00:50:17] Speaker 02: It doesn't actually matter what theory you think the jury found missing as a matter of literal infringement, whether it was the distinctness requirement or the feedback signal requirement, because the test at the end of the day is whether the evidence and the record on equivalence is sufficient to prove the presence of either one. [00:50:41] Speaker 02: And if you look, again, I'll just refer you to Dr. Weiss, the sum and substance of his testimony, it's at appendix [00:50:47] Speaker 02: 17-026 through 027. [00:50:51] Speaker 02: It is a single question and answer. [00:50:54] Speaker 02: It could not be more cursory. [00:50:58] Speaker 02: It says nothing at all. [00:51:00] Speaker 02: There's no analysis and certainly no reference to feedback, you know, whether something being open loop versus closed loop is equivalent or not. [00:51:11] Speaker 02: Nothing about the distinctness requirement. [00:51:14] Speaker 02: It's just not there. [00:51:16] Speaker 02: And the last thing related to that, I will say, is even if you allow them to refer back to their literal infringement analysis, Fairchild has not cited you to any portion of the literal infringement analysis that would pass muster under function way result, that would pass muster under doctrine of equivalence. [00:51:35] Speaker 02: There's no analysis there either. [00:51:37] Speaker 02: So either way, the DOE verdict has to be set aside. [00:51:42] Speaker 03: Thank you. [00:51:42] Speaker 03: We thank both councils and the cases submitted.