[00:00:10] Speaker 04:
Our third case this morning is number 1600-1800, Pro Batters Sports, LLC versus Sports Tutor, Inc.

[00:00:19] Speaker 04:
Mr. Harz.

[00:00:22] Speaker 01:
Thank you, Your Honor, and may it please the Court.

[00:00:25] Speaker 01:
This case is about whether it's obvious to use dynamic breaking in a programmable pitching machine, where that machine needs to deliver pitches of different speeds in just a very short time, a few seconds in between each pitch.

[00:00:39] Speaker 01:
I'd like to start by talking about why dynamic breaking is the obvious choice here, and then go back to discuss some of the problems in the district court's findings on the individual gram factors.

[00:00:50] Speaker 01:
If you start from the prior Floyd patent, it says you can change any one or more of the variables between each and every pitch rapidly in a period of time of a few seconds.

[00:00:59] Speaker 00:
Could you specifically point this out to the court below?

[00:01:04] Speaker 00:
This particular reference and the particular teaching that it has?

[00:01:07] Speaker 01:
Yes, the Floyd patent is cited in the post-trial brief.

[00:01:11] Speaker 01:
And there's the claim-by-claim recitation.

[00:01:15] Speaker 03:
Was it cited in the post-trial brief?

[00:01:16] Speaker 03:
Was it cited in the judge before then?

[00:01:19] Speaker 01:
Before then?

[00:01:20] Speaker 01:
Yes, it was introduced at trial and discussed with one of the witnesses.

[00:01:24] Speaker 01:
Yes.

[00:01:26] Speaker 01:
And so if you start from the Floyd patent, it says you can do this in just a few seconds.

[00:01:31] Speaker 01:
I'd like to point out that in the entire record,

[00:01:33] Speaker 01:
of what's happened in this case, the original prosecution, a decade in the court, and then patent office reexaminations.

[00:01:40] Speaker 01:
There's no practical alternative to dynamic breaking that's been suggested that could achieve this.

[00:01:46] Speaker 01:
And so if you can, and to that end, I'd like to point out page 57 of Probator's brief, not our brief, but Probator's brief, they rely on the fact that sports tutor has to use dynamic breaking in order to

[00:02:03] Speaker 01:
in order to operate the accused infringing home plate machine.

[00:02:09] Speaker 01:
So if that's true of sports tutor's machine today, the only way to do it this quickly is with dynamic breaking.

[00:02:16] Speaker 01:
That's also how it would have been done in the prior art to achieve this short time interval between pitches.

[00:02:22] Speaker 01:
And so not only is it

[00:02:32] Speaker 01:
that the only practical way.

[00:02:34] Speaker 01:
There's also evidence in the record from a motor control vendor, a motor control vendor catalog that says, any braking or reversing that's more frequent than twice per minute, you should use dynamic braking.

[00:02:46] Speaker 01:
And all of that predates the patents in suit and when these claims were filed.

[00:02:52] Speaker 01:
So once you have those two pieces of information, the Floyd patent and another patent, the Sanders patent, they have these short time intervals.

[00:03:00] Speaker 01:
If you go to a motor control vendor and say, hey, I want to do this, I need to change these speeds very quickly, the motor control vendor, the logical thing that they would recommend is dynamic braking.

[00:03:13] Speaker 01:
It says that directly in this catalog that we have.

[00:03:17] Speaker 01:
Not only is that what a motor control vendor hypothetically would have done, that's in fact what was done.

[00:03:23] Speaker 01:
There's evidence that these drives were shipped to a baseball pitching machine manufacturer,

[00:03:28] Speaker 01:
and that this sort of circuit was used in a tennis machine.

[00:03:32] Speaker 00:
Is this some of the evidence that was presented to the court through expert testimony and other fact witnesses?

[00:03:38] Speaker 01:
There was no expert testimony in this case, Your Honor.

[00:03:41] Speaker 01:
But it was all fact witnesses on the people who developed this tennis machine in the late 70s and sold it throughout then and then.

[00:03:49] Speaker 03:
A lot of testimony about the prior machines and how they function and whether they did or did not involve dyadic breaking.

[00:03:57] Speaker 03:
that the judge seemed unimpressed with the people that were supplying that information.

[00:04:02] Speaker 03:
In fact, she expressly rejected, on essentially credibility grounds, an awful lot of your testimony.

[00:04:10] Speaker 01:
I understand that.

[00:04:11] Speaker 01:
And a lot of that testimony that she's rejected is not what we're relying on to make our case today.

[00:04:18] Speaker 01:
We're saying, if you start from the printed record from Floyd, from these final office actions

[00:04:26] Speaker 01:
the patent examiners made and the re-examinations.

[00:04:28] Speaker 01:
They set out where all these teachings are in the prior art.

[00:04:31] Speaker 00:
This is my concern.

[00:04:32] Speaker 00:
My concern is this is that we're reviewing the district court's decision based on the record below and what she heard.

[00:04:39] Speaker 00:
And she made a number of credibility determinations about the witnesses that were presenting that evidence that you're relying on.

[00:04:47] Speaker 00:
And so it feels as if you're telling us we should just ignore that and just go right to the printed documents.

[00:04:53] Speaker 01:
I'm not telling you to ignore her credibility determinations.

[00:04:57] Speaker 01:
There is no credibility determination with regard to the prior patents and what happened during the re-examination.

[00:05:07] Speaker 03:
The prior patent teaches everything but dynamic breaking.

[00:05:14] Speaker 01:
Yes.

[00:05:15] Speaker 01:
That's our position.

[00:05:16] Speaker 01:
And there was a pretrial stipulation

[00:05:19] Speaker 01:
We thought that they had agreed to that, and that's all we were going to try.

[00:05:22] Speaker 03:
What I'm trying to get at is it looked to me like that substantially all of your dynamic breaking evidence was being presented through the testimony of individuals whom she rejected as trustworthy.

[00:05:34] Speaker 03:
And so I'm then saying, well, where is dynamic breaking in the prior art someplace else?

[00:05:42] Speaker 03:
And once, even if I found the prior art to show dynamic breaking, where is the evidence of a motivation to combine?

[00:05:53] Speaker 01:
OK.

[00:05:53] Speaker 01:
Where is it found in the prior art is the first question?

[00:05:57] Speaker 03:
Yeah.

[00:05:57] Speaker 03:
I mean, for other than through the witnesses that were rejected.

[00:06:03] Speaker 01:
Well, the witnesses weren't rejected completely.

[00:06:06] Speaker 01:
She did find that everyone working in this field would work with a motor control vendor in designing a pitching machine.

[00:06:13] Speaker 01:
And we had a motor control vendor at trial.

[00:06:15] Speaker 03:
And we know from the prior earth that there are all kinds of motor controls.

[00:06:19] Speaker 03:
There's dynamic braking, but there are other forms of motor controls that have been used in the past, right?

[00:06:25] Speaker 01:
Not that could achieve this rapid change in pitches.

[00:06:28] Speaker 01:
Rapid change of speeds.

[00:06:30] Speaker 03:
I understand that.

[00:06:31] Speaker 03:
So what we're looking for is something in the record that's unimpeached that deals with a dynamic breakthrough.

[00:06:39] Speaker 04:
What you're saying is, as I understand it,

[00:06:42] Speaker 04:
You've given up on the notion that we should pay attention to these witnesses who said that the prior art used dynamic breaking specifically, but you're saying that the prior art showed a short interval between pitches and that that necessarily involved dynamic breaking.

[00:07:01] Speaker 04:
And if one wanted to achieve that, one would necessarily have to use dynamic breaking.

[00:07:07] Speaker 01:
The end of your statement is correct.

[00:07:10] Speaker 01:
We think that the findings regarding what the witnesses said, we think those are wrong, but you don't need to get to that to reverse here.

[00:07:22] Speaker 01:
Starting from the prior patents that you can change these speeds this quickly, and the district court's finding that a person of skill would work with a motor control vendor, the evidence from the motor control vendor says

[00:07:35] Speaker 01:
Yes, you would use regenerative or dynamic braking for this application.

[00:07:40] Speaker 01:
The catalog says that they always recommend dynamic braking if it's more than twice per minute.

[00:07:44] Speaker 01:
So every few seconds, every 10 seconds, all of that is more than twice per minute.

[00:07:49] Speaker 01:
And it's just exactly what they would recommend.

[00:07:56] Speaker 01:
Does that answer your question?

[00:07:57] Speaker 01:
Yes.

[00:08:00] Speaker 01:
I'd like to jump back to the

[00:08:02] Speaker 01:
The record from the re-examinations, the final office actions, these were exhibits that were admitted without objection at trial as a full exhibit for all purposes.

[00:08:13] Speaker 01:
These provide an element by element, claim by claim, matching up of the prior art patents, including the Floyd patent, including the Sanders patent, with each of the asserted claims.

[00:08:24] Speaker 04:
Apart from dynamic breaks.

[00:08:28] Speaker 01:
Correct.

[00:08:28] Speaker 01:
That is the one aspect that was

[00:08:31] Speaker 01:
challenge on the appeal in the patent office and that the Board of Appeals said, no, we don't see those in the references explicitly.

[00:08:41] Speaker 01:
So all of the other features, the structural features about how the machine head pivots and you can program it to deliver the different pitches, all of those features are found in the prior art patents.

[00:08:51] Speaker 04:
That's found in this patent itself, too, right?

[00:08:54] Speaker 04:
The description of the prior art.

[00:08:58] Speaker 01:
Yes, to some extent.

[00:08:59] Speaker 01:
That's right.

[00:09:00] Speaker 01:
Maybe not every single limitation, but not every single limitation might be in the background.

[00:09:06] Speaker 01:
But certainly in the prior art that was cited in the prosecution and in the re-examinations, the Floyd-Patton, for example, all of the elements are there, other than dynamic breaking.

[00:09:17] Speaker 01:
So if you start from that, and the only missing piece is dynamic breaking, and the prior art says, you change these speeds in just a few seconds, and the person of skill

[00:09:28] Speaker 01:
has access or works with a motor control vendor, there's the motivation.

[00:09:34] Speaker 01:
You need to do it in a few seconds.

[00:09:35] Speaker 01:
The motor control vendor will recommend dynamic braking as the method to you that you need to use.

[00:09:43] Speaker 01:
And the final point I want to say about the final office actions from the reexaminations is that these were admitted without objection, and there's no evidence

[00:09:57] Speaker 01:
that was used to rebut this or contradict it or dispute it during the trial.

[00:10:03] Speaker 01:
And it wasn't even argued.

[00:10:05] Speaker 01:
The focus of the trial was always about this dynamic breaking issue and showing that in prior commercial embodiments.

[00:10:13] Speaker 00:
So it's your position that the court erred by saying that she should not have had to rifle through those 100 page rejections to figure out what your prior art you were relying on was?

[00:10:26] Speaker 00:
Is that your position?

[00:10:27] Speaker 01:
Yes, that's a mistake.

[00:10:29] Speaker 01:
It's laid out page after page, clear prose, this column, this line of the prior art references where each limitation is found.

[00:10:38] Speaker 01:
And that applies to every asserted claim that we've been found to infringe.

[00:10:43] Speaker 01:
The other aspect I want to focus on briefly of the district court's findings is secondary considerations.

[00:10:49] Speaker 01:
The fundamental problem with these findings that were adopted is there's no nexus to the invention.

[00:10:55] Speaker 01:
There's no showing in the trial record that the commercial success and industry praise were driven by this claimed invention alone.

[00:11:06] Speaker 00:
Why does it have to be this?

[00:11:09] Speaker 00:
feature of claimed invention alone.

[00:11:11] Speaker 00:
What if there's something that has praise for the video screen, but also has praise for the ability of the device to change up pitches and pitch quickly?

[00:11:22] Speaker 01:
That would be good evidence, Your Honor.

[00:11:24] Speaker 01:
If there was evidence of praise relating to changing the pitches quickly, that relates to this claimed invention.

[00:11:30] Speaker 01:
All of the praise evidence in this case relates to the video system.

[00:11:33] Speaker 01:
They talk about simulating a real pitcher.

[00:11:35] Speaker 01:
They talk about

[00:11:36] Speaker 01:
You know, looking them in the eye and having the timing of seeing a person pitch it in terms of when they swing.

[00:11:43] Speaker 00:
So if there is some praise that even a couple sentences in an article or something that refers to the changing up of the pitches and the speed of doing that, you would say that that is praise that's worthy for secondary consideration reliance by the court?

[00:12:00] Speaker 01:
That would be a very small amount of evidence.

[00:12:04] Speaker 01:
potentially the district court could rely on that to give it a small amount of weight.

[00:12:09] Speaker 01:
I would think they would weigh it according to the relationship to this other evidence.

[00:12:16] Speaker 01:
Everyone else was focused on the video scheme.

[00:12:18] Speaker 00:
There has to be a weighing that's done.

[00:12:19] Speaker 00:
That's what I'm trying to say.

[00:12:20] Speaker 00:
That's not going to end the argument.

[00:12:22] Speaker 00:
Oh, yes.

[00:12:23] Speaker 00:
One person said it.

[00:12:23] Speaker 00:
That's not enough.

[00:12:24] Speaker 00:
But I just wanted to make sure I understood your position on nexus, which is that

[00:12:28] Speaker 00:
It's not your position that the praise has to be directed to just one feature.

[00:12:33] Speaker 00:
If there is one feature of the claim that's praised, then you would agree there's some praise, at least, in an article.

[00:12:40] Speaker 00:
Now, maybe that's not clear enough.

[00:12:42] Speaker 00:
I just wanted to make sure I understood, and I think it's already clear in the record, that you are not saying just because something, there's praise for a video screen, and then something that's claimed, that the court can't rely on it.

[00:12:56] Speaker 01:
That's right, Your Honor.

[00:12:57] Speaker 01:
But the evidence in this case, all focused on that video screen.

[00:13:01] Speaker 01:
I see that I'm in my rebuttal time.

[00:13:02] Speaker 04:
All right.

[00:13:03] Speaker 04:
We'll give you three minutes for rebuttal.

[00:13:09] Speaker 02:
Good morning.

[00:13:09] Speaker 02:
May I please record?

[00:13:10] Speaker 02:
Mr. Horvack?

[00:13:11] Speaker 02:
Good morning, Your Honor.

[00:13:12] Speaker 02:
May I please record?

[00:13:13] Speaker 04:
I know you're eager.

[00:13:14] Speaker 02:
I am eager.

[00:13:16] Speaker 02:
In this particular case, pro batter, sports,

[00:13:19] Speaker 02:
created, designed, and innovated, and professionally revolutionary.

[00:13:25] Speaker 04:
What's missing here in the prior art?

[00:13:27] Speaker 04:
Multiple.

[00:13:28] Speaker 04:
Other than dynamic breaking?

[00:13:29] Speaker 02:
Multiple things.

[00:13:31] Speaker 02:
Dynamic breaking is missing from Floyd, the primary reference.

[00:13:34] Speaker 02:
No, no, no.

[00:13:34] Speaker 04:
That's not my question.

[00:13:35] Speaker 04:
Apart from dynamic breaking, what's missing in the prior art?

[00:13:39] Speaker 02:
Yes.

[00:13:39] Speaker 02:
In addition to that, linear actuators coupled with a center pivot is a critical feature of the claims.

[00:13:47] Speaker 02:
It's not a feature of all the claims.

[00:13:50] Speaker 04:
Some of the claims are simply nothing more than a pitching machine together with dynamic breaking, right?

[00:13:58] Speaker 02:
Not the way it was construed by the district court in an unchallenged way now.

[00:14:03] Speaker 02:
So the district court read in through means function numerous structures throughout all of them.

[00:14:11] Speaker 02:
But remember, Your Honor, there's 16 infringed claims.

[00:14:15] Speaker 02:
There's no challenge to claim construction.

[00:14:17] Speaker 02:
There's no challenge to the infringement findings.

[00:14:21] Speaker 02:
And if there's one infringed claim, if Your Honor would like to focus on one, for example, claim eight,

[00:14:27] Speaker 02:
is a particular claim that includes a programmable pitching machine that's designed to throw multiple pitches within a short period of time.

[00:14:38] Speaker 02:
It includes dynamic breaking.

[00:14:41] Speaker 02:
It includes linear actuators to adjust the machine in the horizontal and vertical directions.

[00:14:46] Speaker 02:
And it includes, importantly, a center pivot in the notion, Your Honor, of a center pivot.

[00:14:50] Speaker 04:
Let's take claim one, for example, the 924.

[00:14:54] Speaker 04:
Yes.

[00:14:55] Speaker 04:
This is just a pitching machine combined with dynamic breaking, right?

[00:15:08] Speaker 02:
I believe that is true, Your Honor, for that particular claim.

[00:15:11] Speaker 04:
Well, as to that particular claim, certainly pitching machines were in the prior art, right?

[00:15:17] Speaker 04:
Agreed.

[00:15:17] Speaker 04:
So the only feature is dynamic breaking.

[00:15:20] Speaker 04:
For that particular claim, the inclusion... And so if dynamic breaking is obvious to combine with a pitching machine, that particular claim is invalid, right?

[00:15:31] Speaker 02:
It would be under that hypothetical, but remember, Your Honor, dynamic breaking was not found to be within the scope of analogous prior art by the district court.

[00:15:41] Speaker 04:
Okay, but address what he's arguing.

[00:15:43] Speaker 04:
He says, okay, I'll accept

[00:15:46] Speaker 04:
these findings by the district judge that the witnesses who specifically testified to the use of dynamic braking in these pitching machines in the prior art can be sustained.

[00:15:58] Speaker 04:
But I'm saying that the prior art showed pitches delivered after a short interval.

[00:16:04] Speaker 04:
There's this manual for the motors which says use dynamic braking if you want to change quickly and that makes it obvious to combine the two.

[00:16:15] Speaker 02:
We need more, of course.

[00:16:17] Speaker 02:
You need a motivation to combine those two pieces of prior art in the way in which it was claimed.

[00:16:22] Speaker 04:
Well, why isn't there a motivation in the manual, which says if you want to do this, use dynamic breaking?

[00:16:28] Speaker 02:
No, no, no.

[00:16:29] Speaker 02:
Respectfully, it does not say that.

[00:16:31] Speaker 02:
So in order to get to the claimed invention from those two pieces of prior art for one of the claims in the 924 patent, you would need to know, as one of ordinary skill in the art, that it was

[00:16:43] Speaker 04:
Important or beneficial or adaptation to rapidly decelerate where do we find the manual the language from me?

[00:16:55] Speaker 02:
Well, I don't know specifically right off the bat your honor, but we could we could look I

[00:17:18] Speaker 02:
I don't see it quickly, Your Honor, but it does not do what... Well, I mean, you say you tell us what it says, but you can't show us what it actually says.

[00:17:29] Speaker 02:
That's not that helpful.

[00:17:31] Speaker 02:
Well, in large part, Your Honor, this was not argued below.

[00:17:34] Speaker 02:
It wasn't pointed to the district court below.

[00:17:37] Speaker 02:
It's done for the first time here.

[00:17:39] Speaker 00:
Page A-1671.

[00:17:40] Speaker 02:
Thank you, Your Honor.

[00:17:53] Speaker 02:
So it talks about, Your Honor, if you need 1671, it talks about if you want to ramp the motor down slowly or decelerate it, you could use regenerative or dynamic braking.

[00:18:11] Speaker 02:
And my point about motivation to combine, Your Honor, which is a critical and important one in the obviousness equation, is that- Where is the language on this page?

[00:18:19] Speaker 02:
Sure, it's right at the very top, Your Honor, the very first

[00:18:22] Speaker 02:
Paragraph on the left.

[00:18:29] Speaker 03:
What is inhibit?

[00:18:44] Speaker 03:
In those situations, inhibit is enough.

[00:18:47] Speaker 03:
What is inhibit?

[00:18:48] Speaker 02:
There is no testimony about what that means, Your Honor.

[00:19:08] Speaker 04:
Well, I mean, I think what they're relying on is, Matar always recommends regenerative drives when fast braking and reversing is required.

[00:19:18] Speaker 04:
That's what they're relying on, right?

[00:19:21] Speaker 02:
Slowing down the motor in a rapid way, dynamic braking was known.

[00:19:25] Speaker 02:
There's no question about that.

[00:19:29] Speaker 04:
But did the prior art necessarily involve braking?

[00:19:34] Speaker 02:
No, absolutely not.

[00:19:35] Speaker 02:
No?

[00:19:36] Speaker 02:
No.

[00:19:36] Speaker 02:
So changing pitches.

[00:19:38] Speaker 02:
quickly did not require breaking of the wheels.

[00:19:42] Speaker 02:
You could adjust pitches without rapid deceleration of wheel speed.

[00:19:46] Speaker 02:
These inventors discovered that there are times when you're throwing a fastball like Roger Clemens at 95 miles per hour and the bottom wheel is going at, for example, 2,500 RPMs, you might want to change it up to a slow pitch sinker

[00:20:06] Speaker 02:
like Tommy John, and that would require very rapid deceleration of that bottom wheel to 1,500, for example, 1,500 RPMs, 1,000 RPMs in a very short period of time.

[00:20:19] Speaker 02:
Nobody appreciated the benefits of doing that other than these inventors.

[00:20:24] Speaker 04:
I thought some of the prior patents did talk about changing speeds quickly.

[00:20:32] Speaker 04:
That's true, right?

[00:20:34] Speaker 02:
changing pitches within a short period of time, yes.

[00:20:39] Speaker 02:
Changing dramatically pitches, like I just described, absolutely not.

[00:20:47] Speaker 02:
So professional major baseball pitchers do what I just described.

[00:20:52] Speaker 02:
Nobody appreciated that rapid acceleration of wheel speed could accomplish that, would accomplish that.

[00:20:58] Speaker 02:
These inventors did accomplish that, and they employed dynamic breaking to do so.

[00:21:03] Speaker 02:
Further, Your Honor, nobody appreciated that using linear actuators in a center pivot would allow very small but accurate adjustments of the power head so that the batter would not appreciate the subtle movements of that machine and therefore could not predict what machine, excuse me, what pitch was coming.

[00:21:24] Speaker 00:
Is that something that's found, you say, in dependent claim eight?

[00:21:28] Speaker 02:
Yes, Your Honor, for example, as an example, yes.

[00:21:31] Speaker 04:
But the claim one was also invalid, right?

[00:21:34] Speaker 04:
It was what?

[00:21:34] Speaker 04:
Claim one was also found to be not invalid.

[00:21:39] Speaker 04:
Absolutely, yes.

[00:21:41] Speaker 02:
Because there is no evidence of a motivation to combine.

[00:21:45] Speaker 02:
All of the evidence that came forth on this particular point about motivation to combine came from discredited, interested, uncorroborated testimony.

[00:21:54] Speaker 02:
The judge weighed and looked

[00:21:56] Speaker 02:
Each witness in the eye determined their credibility, determined there was none.

[00:22:00] Speaker 02:
For example, sports tutor brought into the courtroom a machine, an actual pitching machine that they proclaimed under oath was assembled and was in the public domain in 1996, i.e.

[00:22:14] Speaker 02:
was prior art.

[00:22:15] Speaker 02:
Under cross-examination, it was determined that the machine actually had motors which were manufactured in the year 2000, Your Honor.

[00:22:23] Speaker 02:
We looked under the machine, looked at the motors,

[00:22:26] Speaker 02:
And there's a concession that the machine that allegedly showed a motivation to combine and invalidated these claims was wholly wrong, wholly made up.

[00:22:36] Speaker 02:
Further, there was a witness, Coach Gallagher, who said he saw, for example, a pitching machine that had this feature of dynamic breaking, although he doesn't know what dynamic breaking is.

[00:22:47] Speaker 03:
Your adversary pretty much walked away from those witnesses today.

[00:22:51] Speaker 02:
Right.

[00:22:51] Speaker 02:
And so, Your Honor, if he does that, there's absolutely no evidence of a motivation to combine dynamic breaking into a programmable pitching machine, nor is there any motivation or acknowledgment of the benefits of living.

[00:23:05] Speaker 03:
And so the argument based on the manual is fresh today.

[00:23:08] Speaker 02:
It is.

[00:23:09] Speaker 02:
And it's solely recreation to invalidate the claim.

[00:23:12] Speaker 02:
To remember this.

[00:23:13] Speaker 04:
But they rely on the manual below, right?

[00:23:15] Speaker 02:
They put it into evidence without a proposed finding of fact or without connecting it from a motivational to combined perspective.

[00:23:24] Speaker 02:
The judge found explicitly no motivation to combine.

[00:23:28] Speaker 02:
You would have to find that that was clear error, that there was no way in the world could she reject any evidence along those lines.

[00:23:37] Speaker 02:
And respectfully, you cannot do that on this record by acknowledging that the machines and the way she

[00:23:43] Speaker 02:
analyze the Woodland trust factors cannot be reviewed successfully here.

[00:23:49] Speaker 02:
It's impossible for you to reverse those findings.

[00:23:51] Speaker 03:
Was there clarity at the trial below as to whether or not this case had been tried as an anticipation case as opposed to an obviousness case?

[00:23:59] Speaker 02:
Your Honor, before trial, there was a defense of anticipation.

[00:24:03] Speaker 02:
There was no trial evidence about anticipation.

[00:24:07] Speaker 03:
When they brought forth the testimony about the machines and people were testifying that everything could be found in the machine, that's an anticipation.

[00:24:16] Speaker 02:
I believe you're acknowledging one of the points that the district court made, which was it sounds like you're arguing anticipation, but you never briefed anticipation, nor did you provide any proposed findings of fact with respect to anything.

[00:24:30] Speaker 02:
I believe they've waived or abandoned their anticipation defense, which was an affirmative defense.

[00:24:36] Speaker 02:
So it's clear that the claimed invention is innovative and novel.

[00:24:41] Speaker 02:
And they have to piece together in a recreative way.

[00:24:44] Speaker 04:
But I think the problem is this, that reading the district court's opinion, it seems to be that she says, well, I don't believe that dynamic breaking has been shown to have been used in the prior

[00:24:56] Speaker 04:
Therefore, it's not obvious, which sounds like an anticipation decision rather than an obvious misdecision.

[00:25:05] Speaker 02:
No, I disagree with that, Your Honor.

[00:25:06] Speaker 02:
She said she found it was not used in the art, nor in the field of endeavor, and therefore it wasn't analogous art.

[00:25:15] Speaker 02:
She didn't say that it was never used.

[00:25:17] Speaker 02:
I would have stood up and said, of course it was used.

[00:25:21] Speaker 04:
Nobody contemplated using it here.

[00:25:23] Speaker 04:
She specifically made a finding that it was common.

[00:25:26] Speaker 04:
the dynamic rate was common.

[00:25:31] Speaker 02:
Outside of the context of this field of endeavor, nobody appreciated rapid deceleration of wheel speed had tremendous benefits.

[00:25:41] Speaker 02:
And that's why nobody did it beforehand.

[00:25:45] Speaker 02:
It's innovative.

[00:25:46] Speaker 02:
Further, they copied it immediately.

[00:25:48] Speaker 00:
Can I ask you about secondary considerations?

[00:25:51] Speaker 00:
Yes.

[00:25:51] Speaker 00:
Okay, so what we heard earlier was that there is absolutely no praise at all for switching up pitches or for changing the speed in pitches quickly and rapidly.

[00:26:01] Speaker 00:
Do you agree with that?

[00:26:02] Speaker 02:
No, absolutely not.

[00:26:03] Speaker 02:
So there's a number of references throughout that the appreciation is both.

[00:26:13] Speaker 02:
First of all, that it's the video component coupled with the ability to dramatically change pitches

[00:26:17] Speaker 02:
which gives you that real-life professional experience.

[00:26:20] Speaker 00:
Further... Is there particular sites in the record that you would rely on?

[00:26:24] Speaker 02:
Yes.

[00:26:26] Speaker 02:
They're in my brief, which I left in the pews.

[00:26:29] Speaker 02:
But yes, there are.

[00:26:31] Speaker 02:
And they explicitly focus on the feature of changing up the speeds and being able to simulate a professional ball player.

[00:26:42] Speaker 02:
And they come from professional ball players, people who know.

[00:26:45] Speaker 02:
Also, there's an acknowledgment

[00:26:47] Speaker 02:
from the CEO of sports tutor that he thought the machine when he saw it for the first time in a trade show was pretty cool.

[00:26:53] Speaker 02:
He's from California.

[00:26:54] Speaker 02:
He thought it was pretty cool and he was impressed.

[00:26:56] Speaker 04:
But that's not directing it to the speed of the changing pitches.

[00:27:01] Speaker 04:
You can't, with all due respect to you.

[00:27:04] Speaker 04:
No, you're not supposed to interrupt.

[00:27:05] Speaker 04:
I apologize.

[00:27:08] Speaker 04:
that could well have been directed to the video aspect of it, the reality with the picture and so on and so forth.

[00:27:14] Speaker 02:
He didn't so limit it that way.

[00:27:17] Speaker 02:
The district court judge didn't so limit it that way.

[00:27:20] Speaker 02:
She determined that it was an acknowledgement that the entire system, which includes the ability to dramatically change pictures, was impressive.

[00:27:29] Speaker 02:
And they copied it the month thereafter.

[00:27:32] Speaker 02:
And they've been capitalizing on it ever since.

[00:27:35] Speaker 02:
Immediately from their baseball sales, they had a number of machines, never anything like this.

[00:27:42] Speaker 02:
90% of their sales immediately became infringing copied device.

[00:27:50] Speaker 02:
They praised it, they copied it with their, they praised it with their copying, and the industry praised it throughout.

[00:27:59] Speaker 02:
And it's important, I believe,

[00:28:01] Speaker 04:
That the copying... Where's your best example of the industry pricing the change in pitching speed as opposed to other aspects of it?

[00:28:11] Speaker 02:
If I can go back to appeals, I'll be right back.

[00:28:14] Speaker 04:
You can do that, but you're supposed to bring your briefs up to the podium.

[00:28:17] Speaker 02:
I apologize.

[00:28:18] Speaker 02:
I didn't anticipate that you would ask that specifically.

[00:28:22] Speaker 02:
It happens.

[00:28:23] Speaker 02:
Okay.

[00:28:23] Speaker 02:
I'll be right back.

[00:28:42] Speaker 02:
So you're in the background of our brief.

[00:28:45] Speaker 02:
We talk about the secondary factors.

[00:28:52] Speaker 02:
And on page 12, one former professional baseball player proclaimed, it's an incredible piece of equipment.

[00:29:08] Speaker 02:
It will throw 40 to 100 miles an hour, and it will throw any pitch

[00:29:12] Speaker 02:
that you can possibly ask for, I mean, it is absolutely amazing.

[00:29:22] Speaker 02:
And it goes on, even Sports Studio CEO was impressed and praised the machine as pretty cool.

[00:29:27] Speaker 02:
And the secondary factors, let me just say, it doesn't have to be solely the entire commercial system.

[00:29:34] Speaker 02:
If the claimant invention contributes to the success, if it contributes to the praise,

[00:29:40] Speaker 02:
It gets credited just like the district court did here.

[00:29:43] Speaker 02:
She did not clearly err in any of her findings.

[00:29:47] Speaker 02:
She did not clearly err in finding no motivation to combine.

[00:29:50] Speaker 02:
She did not clearly err in finding an inability of the defendant to outline their defense for her.

[00:29:58] Speaker 04:
OK.

[00:29:58] Speaker 04:
Thank you, Mr. Harback.

[00:29:59] Speaker 04:
We're out of time here.

[00:30:01] Speaker 02:
Thank you.

[00:30:08] Speaker 04:
Mr. Harts, you've got three minutes.

[00:30:11] Speaker 01:
Thank you, Your Honor.

[00:30:14] Speaker 01:
If you are staying on page 12 there, the quote he just read, there's nothing in there about changing the interval of time between the pitches.

[00:30:22] Speaker 01:
If you're just talking about a machine that can pitch pitches of different speeds, that's described in the prior patents.

[00:30:30] Speaker 01:
That's described in Floyd.

[00:30:31] Speaker 01:
That's described in Sanders.

[00:30:34] Speaker 01:
I'd like to make a few more points.

[00:30:38] Speaker 01:
He discussed some of the credibility determinations,

[00:30:41] Speaker 01:
talking about copying and some of those things.

[00:30:46] Speaker 01:
In the machine that was at trial, those motors were replaced in 2000, apparently, based on the dates.

[00:30:52] Speaker 01:
But even if you give it the 2000 date, that's still years prior to sports tutor allegedly seeing it at the trade show, and that's when they decided to use dynamic braking.

[00:31:05] Speaker 01:
Sports tutor knew about dynamic braking from the tennis business way before the baseball.

[00:31:11] Speaker 01:
trade show where they saw this, and they'd also purchased the Scott patent and some related business relating to these machines that... Where does the prior talk about rapidly changing speeds?

[00:31:26] Speaker 01:
So, for example, in the Sanders patent, this is a 1664.

[00:31:31] Speaker 01:
The deliveries, this is column 12,

[00:31:38] Speaker 01:
lines 33 to the end of the paragraph.

[00:31:47] Speaker 01:
The delivery cycle, for example, one pitch every 10 seconds is designed to be constant so the batter does not have a clue of any pitch sequence by result of the variation in time to adjust for each different pitch.

[00:31:58] Speaker 01:
Likewise, the motor systems are quiet so that he does not hear any audible adjustment going on to give him a clue that the next pitch will be different from the last one delivered.

[00:32:10] Speaker 01:
That's one example.

[00:32:11] Speaker 00:
It's still the same kind of pitch, though, right?

[00:32:13] Speaker 00:
It's the same pitch over and over again every 10 seconds.

[00:32:16] Speaker 00:
It doesn't say that you're changing every 10 seconds, does it?

[00:32:20] Speaker 01:
No.

[00:32:20] Speaker 01:
It says you're adjusting for different pitches.

[00:32:25] Speaker 01:
And that's in line 36.

[00:32:33] Speaker 01:
And if you go back to the Floyd patent,

[00:32:36] Speaker 01:
Appendix 1614, it says, change any one or more of the variables between each and every pitch rapidly in a period of time of a few seconds.

[00:32:45] Speaker 01:
So those are clearly the time interval aspect is in these prior patents.

[00:32:52] Speaker 01:
And that is what provides the motivation to use a dynamic breaking element in the completed system.

[00:33:00] Speaker 01:
I'd like to briefly touch on something else that was said, and that's Claim 8 and what was missing, linear actuators, and... You particularly pointed these references out to the district court judge?

[00:33:13] Speaker 01:
Yes, these are in the record.

[00:33:15] Speaker 01:
Where in the record can you show that you, during the bench trial, pointed those references out?

[00:33:21] Speaker 01:
During the course of the trial, live testimony, that did not happen.

[00:33:25] Speaker 01:
But in the briefing, we said, look at this.

[00:33:29] Speaker 01:
Office action, it lines up every element of the claims, other than dynamic breaking.

[00:33:34] Speaker 01:
And all the evidence presented at trial is about dynamic breaking.

[00:33:37] Speaker 03:
All right, but this is you're now talking about dynamic breaking.

[00:33:42] Speaker 03:
All I'm trying to get at is I didn't see anything that referenced to me that the judge had this argued to her.

[00:33:52] Speaker 01:
Your Honor, I'm out of time, but I'd like to answer your question.

[00:33:56] Speaker 01:
Our theory of this case has been that

[00:33:59] Speaker 01:
You should start from where the patent office left off.

[00:34:01] Speaker 01:
They found all these elements other than the dynamic breaking in these prior patents.

[00:34:06] Speaker 01:
And the trial presentation was about dynamic breaking.

[00:34:09] Speaker 01:
I understand that.

[00:34:10] Speaker 04:
But I think the question is, where did you argue this theory that you have been espousing this morning about the

[00:34:18] Speaker 04:
Floyd and the Baxter patents talking about short intervals and the motor manufacturer manual talking about using dynamic braking when you want to change speeds quickly.

[00:34:36] Speaker 04:
Where did you argue that occurred?

[00:34:41] Speaker 01:
We argued that there's no known practical alternative to do it other than dynamic braking.

[00:34:47] Speaker 01:
I mean, that testimony was elicited trial.

[00:34:49] Speaker 01:
They're relying on it.

[00:34:50] Speaker 03:
I'm just talking about the actual specifics of the argument.

[00:34:53] Speaker 03:
I didn't see any evidence that this, as Judge Blake said, that that was presented.

[00:34:58] Speaker 01:
It may not be phrased exactly in those terms.

[00:35:02] Speaker 01:
So I see that I'm out of time.

[00:35:04] Speaker 04:
Thank you, Your Honor.

[00:35:06] Speaker 04:
Thank you.

[00:35:06] Speaker 04:
Thank you, counsel.

[00:35:09] Speaker 04:
The case is submitted, and we'll recess briefly.