[00:00:41] Speaker 00: Okay, the next case is number 15-13-11, Radio Systems Corporation against Law Law, Mr. Mann. [00:00:50] Speaker 02: Good morning, Your Honor, and may it please the Court. [00:00:53] Speaker 02: This case presents a very fundamental issue that comes down to when you have issues of fact, when there's evidence on both sides of material issue of fact, who gets to make the final call on that? [00:01:03] Speaker 02: A jury or the judge? [00:01:05] Speaker 02: That is exactly what was presented in this case. [00:01:08] Speaker 02: We had a six-day jury trial, Your Honor, during which a number of witnesses were called. [00:01:12] Speaker 02: We started out with nine jurors. [00:01:14] Speaker 02: One of them had to drop out during the case. [00:01:16] Speaker 02: Six jurors listened to six days of testimony. [00:01:20] Speaker 02: Six jurors saw a number of exhibits. [00:01:23] Speaker 02: Six jurors got to handle the actual products and look at the prior art and so forth. [00:01:28] Speaker 02: The jury deliberated for two and a half days. [00:01:31] Speaker 02: The jury came back with a split decision. [00:01:34] Speaker 02: I did not win entirely. [00:01:35] Speaker 02: The jury came back and said, no. [00:01:37] Speaker 02: Some of these patent claims are invalid. [00:01:40] Speaker 02: But importantly, the jury said two of the claims are not invalid. [00:01:45] Speaker 02: In other words, radio systems failed to prove with clear and convincing evidence that two of the claims were invalid. [00:01:52] Speaker 02: The jury also said those claims are infringed. [00:01:55] Speaker 02: The reason we are here is, despite all that, the trial judge said, no, I disagree. [00:02:01] Speaker 02: In my view, this is clear and convincing evidence. [00:02:04] Speaker 02: The jury is wrong. [00:02:05] Speaker 01: Didn't he say, though, what he actually, I think, said is that there's no evidence to support a contrary conclusion, that no reasonable jury could have concluded as the jury did. [00:02:16] Speaker 01: And so then the question becomes, what is the substantial evidence to support the jury's verdict? [00:02:22] Speaker 01: So why don't you point us to that? [00:02:24] Speaker 02: Certainly, Your Honor, I'd be happy to do so. [00:02:26] Speaker 02: In saying that, that's just really a fancy way of the judge saying, I disagree. [00:02:31] Speaker 02: What happens, we have to keep in mind here, that radio systems has the burden of proof on this. [00:02:35] Speaker 02: Radio systems has to come in and prove with clear and convincing evidence that the claims are invalid. [00:02:40] Speaker 02: It's analogous to a criminal matter where the state has to prove guilt. [00:02:44] Speaker 02: It's entirely maybe dangerous, but a defendant can say, I'm resting. [00:02:48] Speaker 02: I'm not going to present any contrary evidence. [00:02:51] Speaker 02: This fails to rise to the appropriate level of proof. [00:02:54] Speaker 02: But beyond that, Your Honor, so we could say, I mean, at the risk of being overly simplistic, we could say that doesn't rise to the level of clear and convincing. [00:03:02] Speaker 02: And if the jury agrees with us, [00:03:04] Speaker 02: they get to make the determination of credibility. [00:03:06] Speaker 02: But in this particular case, there was substantial cross-examination. [00:03:10] Speaker 02: I didn't have an expert of my own, and my infringement expert was bounced out of the case by the trial judge. [00:03:16] Speaker 02: Furthermore, we had to go second. [00:03:18] Speaker 02: Even though we were the patentees, we were not realign, so we had to listen to the arguments of invalidity first. [00:03:25] Speaker 02: What we did was we subjected their expert, Mr. Westrake, to substantial cross-examination. [00:03:30] Speaker 02: We pointed out specifically, in the context of the relevant claims, [00:03:34] Speaker 02: claims 3 and 17. [00:03:36] Speaker 02: With respect to the claim 3, where it talks about particular dimensions, we pointed out, you have to admit the obvious, no dimensions are shown in that patent. [00:03:45] Speaker 02: Mr. Westrup was forced to conclude [00:03:47] Speaker 02: that the patent did not show any particular dimensions and that it was pure guesswork on his part as to whether the three-eighths inch limitation was met by the Bongie reference. [00:03:58] Speaker 02: Furthermore, Mr. Westrick testified, got him to admit on cross-examination, that the little posts that stick up there are threaded and it would be difficult for those to actually contact the animal's skin. [00:04:10] Speaker 02: He also testified that it was well known in the art to take electrode probes and screw them onto the posts. [00:04:17] Speaker 02: We had a number of those probes already admitted into evidence, and if those probes were in fact screwed onto the Bongue reference, they would vastly exceed the 3-8 limitation. [00:04:28] Speaker 02: This is all materials that Mr. Westbrook testified to. [00:04:33] Speaker 02: With respect to Claim 17, the business of whether the housing is designed to contact the animal's skin, the Bongue reference clearly shows a strap overlying [00:04:46] Speaker 02: the housing. [00:04:47] Speaker 02: So as shown in Bongi, everything we can see in the Bongi reference shows a strap interface between where the housing is and where the animal's skin would be. [00:04:57] Speaker 02: Mr. Bongi testified, well, even though that's what it shows, it could be this, it could be that. [00:05:01] Speaker 02: It could have a narrow strip. [00:05:03] Speaker 02: Maybe the housing sticks out farther. [00:05:05] Speaker 02: Again, it's pure guesswork on the part of Mr. Westrick. [00:05:10] Speaker 02: So we would, to answer your question, I'm taking a roundabout way of answering your question, I would suggest that there was evidence in the form of lack of credible evidence. [00:05:19] Speaker 02: In other words, there was ample reason for the jury to listen to Mr. Westrick and say, I'm not convinced. [00:05:25] Speaker 02: I'm not sure this guy knows what he's talking about. [00:05:27] Speaker 02: I'm not sure. [00:05:29] Speaker 02: In essence, it's credibility determination, Your Honor. [00:05:32] Speaker 02: I seem to recall reading that [00:05:35] Speaker 03: There was a move for, I guess, a directed verdict after the presentation of all the evidence. [00:05:44] Speaker 03: And the judge denied that? [00:05:46] Speaker 03: He did. [00:05:46] Speaker 03: Then it went to the jury? [00:05:48] Speaker 03: Pardon me? [00:05:48] Speaker 02: Then it went to the jury? [00:05:49] Speaker 02: It did, Your Honor. [00:05:51] Speaker 02: That's exactly what happened. [00:05:53] Speaker 02: During the course of the trial, I believe at the conclusion of the various cases, oral motions were made for a directed verdict. [00:06:00] Speaker 02: The judge said, [00:06:01] Speaker 02: I'm paraphrasing. [00:06:04] Speaker 02: He said, I don't think I can decide right now, JMOL, I'm going to let it go to the jury. [00:06:09] Speaker 02: But after the jury verdict came back, he was not shy at all about saying the jury was wrong. [00:06:14] Speaker 02: So that's exactly what happened. [00:06:16] Speaker 02: During the course of the trial, he said, I'm not going to direct the verdict at this time. [00:06:21] Speaker 03: What do you argue, what do you say was the effect that the judge [00:06:27] Speaker 03: put the order of the presentation of the evidence on, changed the order. [00:06:32] Speaker 03: You're playing to Friday, and you went second. [00:06:35] Speaker 02: No, we were actually, we are the patentee. [00:06:37] Speaker 02: This case started out as a declaratory judgment action, Your Honor. [00:06:40] Speaker 02: We are the patentee. [00:06:41] Speaker 02: We threatened, actually this goes back a number of years. [00:06:44] Speaker 03: They had you go second. [00:06:48] Speaker 02: They had us go second. [00:06:49] Speaker 02: So they get to put on their case of invalidity and non-intrinsment first. [00:06:53] Speaker 02: then we got to put on our case of infringement, and then Radio Systems was able to put on a rebuttal case. [00:07:00] Speaker 02: They got to open closing arguments. [00:07:02] Speaker 03: But why does that matter to you in this case? [00:07:05] Speaker 02: It doesn't really matter. [00:07:06] Speaker 02: Well, aside from the fact that we ultimately have the burden of proof as the patentee arguing infringement, it's always nice to go first. [00:07:14] Speaker 02: I've had a number of cases where it's been [00:07:17] Speaker 02: in a declaratory judgment. [00:07:19] Speaker 02: In all other cases, the court sometimes, to respond to you, just realign the parties. [00:07:24] Speaker 02: That's not a basis of our appeal. [00:07:26] Speaker 02: I'm just pointing it out as something a little bit unusual. [00:07:28] Speaker 02: I would rather have done it in the normal order, but a good experience, I guess, in that sense. [00:07:34] Speaker 01: Looking at Figure 12 of, how do you say it, Bungie? [00:07:39] Speaker 02: Bungie, B-O-N-G-E, yeah. [00:07:42] Speaker 01: You were saying that something, I think you were trying to say that threat electrodes, which are identified as elements 58 and 59, don't contact the dog's skin. [00:07:53] Speaker 01: Is that right? [00:07:53] Speaker 01: Well, I don't see how that would be so. [00:07:55] Speaker 02: Well, I didn't, I'm sorry, Your Honor, I don't mean to say that. [00:07:58] Speaker 02: I'm not sure if that was presented. [00:07:59] Speaker 02: We did bring out the fact that those don't stick up very far, and it was ambiguous whether they would contact the dog's skin. [00:08:07] Speaker 02: I want to point out we made an inadvertent typographical error in our brief, and I think we pointed out in our reply brief. [00:08:14] Speaker 02: We never had a sample of the bongi product. [00:08:16] Speaker 02: The bongi product, as far as we know, we're not sure whatever even physically existed. [00:08:21] Speaker 02: So all we were going on is the drawing here. [00:08:23] Speaker 02: We never had an actual physical product that we can inspect. [00:08:26] Speaker 02: So we were talking during cross-examination. [00:08:28] Speaker 02: I was pointing out that those things don't really stick up that far, and would they make good contact with the skin? [00:08:34] Speaker 02: And Mr. Westwick wasn't sure. [00:08:36] Speaker 02: The important thing is he did concede that they are threaded. [00:08:40] Speaker 02: There's a nut you can see that's on there. [00:08:43] Speaker 02: And that it was common practice in the industry to have thread on [00:08:48] Speaker 02: You see pictures of those at page 26 of our opening brief. [00:08:51] Speaker 01: I see where you've said that, but I also see where the reference itself say that 58 and 59, while they're threaded electrodes, they are in fact electrodes themselves. [00:09:02] Speaker 01: And then 61 and 60, they are used to, those are nuts to screw them on. [00:09:09] Speaker 01: And so in this particular reference, there's been a decision that the electrodes would be threaded electrodes. [00:09:15] Speaker 01: And the electrodes not only serve as the electrodes, but they seem to also serve as an additional element to secure the housing to the collar. [00:09:22] Speaker 01: But I don't think that there's any, I'm not sure that I think it's reasonable to think that you're supposed to stick something else on here to serve as the electrode when 58 and 59 are expressly describing the patent as being the electrodes. [00:09:35] Speaker 02: They're being electrodes, but it says absolutely nothing about them contacting the animal in any way, shape, or form. [00:09:40] Speaker 02: It's clear there's no dispute that those things do pass electricity, and what we've been euphemistically calling the stimulus signal goes through those. [00:09:48] Speaker 01: But what is ambiguous is whether... What would be the point of them being electrodes? [00:09:52] Speaker 01: If they don't actually contact the animal, what would be the point of them? [00:09:55] Speaker 02: Well, because you could screw on another element that would conduct it. [00:10:01] Speaker 02: It would be an extension piece, in essence. [00:10:03] Speaker 01: Does the reference say that you should sew, add such a thing? [00:10:07] Speaker 02: It doesn't. [00:10:07] Speaker 02: It doesn't. [00:10:08] Speaker 01: The implication might be that it's not necessary? [00:10:11] Speaker 02: It's possible. [00:10:11] Speaker 02: That's what we say. [00:10:12] Speaker 02: There are a number of uncertainties about this. [00:10:15] Speaker 02: This is exactly what we were dealing with at the trial. [00:10:18] Speaker 02: Bonghi reference, what you have is this drawing, another one very similar to it. [00:10:22] Speaker 02: And you have a couple of paragraphs of description that don't talk at all about how this thing works in the context of an animal. [00:10:29] Speaker 02: I think what Bongie was talking about is how things are mounted within the housing. [00:10:33] Speaker 02: So it's a very, very cryptic reference. [00:10:36] Speaker 03: But there's got to be contact, right, for the item to work, for there to be an electrical charge. [00:10:43] Speaker 02: There has to be contact between some sort of conductor and what we see at 58 and 59. [00:10:49] Speaker 02: Yes, but what we're not sure of is whether [00:10:52] Speaker 02: the animal's skin directly contact what we see at 58 and 59 or whether there's an extension piece. [00:10:58] Speaker 02: Now, you're absolutely correct, Your Honor, that something has to conduct the electricity from these electrodes to the animal's skin. [00:11:06] Speaker 02: What is unclear is whether there's any intervening structure. [00:11:09] Speaker 02: And this is what I tried to bring out during my cross-examination of Mr. Westrick. [00:11:14] Speaker 01: But didn't Mr. Westrick say at A3560 that these would, in fact, contact the skin of a dog? [00:11:21] Speaker 02: He said that they would, but he also pointed out that he hadn't seen it and that it was common in the industry to use screw-on electrodes. [00:11:29] Speaker 01: That doesn't mean you're saying because he hadn't seen this reference, the Bange patent in a practical application, that means it doesn't exist? [00:11:38] Speaker 02: No, what I'm saying is the jury would be free to conclude to discount his evidence or discount his testimony. [00:11:44] Speaker 02: The fact that an expert says something does not mean that it has to be accepted. [00:11:49] Speaker 02: I mean, this happens all the time where witnesses stick to their story, but the jury sees what's going on and doesn't believe it. [00:11:56] Speaker 02: And I'm saying in this case, because it was unclear and because there were inconsistencies in Mr. Westbrook's testimonies brought out during cross-examination, that the jury would be free in this case to say, I'm not convinced. [00:12:08] Speaker 02: I'm not clearly, it's not clear and convincing, which again is a standard. [00:12:11] Speaker 01: I think the crux of your argument [00:12:13] Speaker 02: really depends on the statement that it's unclear in the reference. [00:12:27] Speaker 02: that these electrodes here would stick up less than 3 eighths. [00:12:31] Speaker 02: And again, it sort of raises the question. [00:12:33] Speaker 02: We have to sort of assume... Isn't their expert testimony that they did? [00:12:37] Speaker 02: No. [00:12:37] Speaker 02: We do not... I think he's making a... He's basing it... He's concluding that based on what he sees in the drawing, but the court's precedent, as I understand it, says unless there's something clear, you can't just use relative measures or relative dimensions in the drawings to make dimensional conclusions. [00:12:55] Speaker 01: I thought that it was okay to look at relative measurements, but that it's not appropriate to actually take out a ruler and start measuring things. [00:13:05] Speaker 02: But again, we do not know how big this thing is. [00:13:09] Speaker 02: What size dog is this on? [00:13:11] Speaker 02: Is this on a St. [00:13:12] Speaker 02: Bernard? [00:13:12] Speaker 02: Is this on a Chihuahua? [00:13:13] Speaker 02: We don't know. [00:13:14] Speaker 02: These are the things that are not clear in this. [00:13:17] Speaker 02: And again, these are why I'm saying that [00:13:21] Speaker 02: that you can't say. [00:13:23] Speaker 02: My argument to the jury was this does not rise to the level of clear and convincing. [00:13:27] Speaker 02: Certainly, it's suggestive. [00:13:29] Speaker 02: It's possible. [00:13:29] Speaker 02: I'm not saying that no way, no how could Mr. Westrick be right. [00:13:34] Speaker 02: What I am saying is I disagree that no way, no how could we be wrong on this. [00:13:40] Speaker 02: And when it's a question that could go either way, and I believe that in this case, it is a question that could go either way, the proper body to determine that question is the jury. [00:13:51] Speaker 02: not the judge, not us, a year and a half and 3,000 miles away later, trying to decide this. [00:13:57] Speaker 02: The jury's the one that heard this stuff. [00:13:59] Speaker 02: That's what our system says. [00:14:00] Speaker 02: And I think on this case, there's certainly enough here for the jury to have reasonably concluded that, no, I'm not convinced that these claims are invalid. [00:14:11] Speaker 02: And again, same thing with whether it's designed to contact the animal's skin. [00:14:16] Speaker 02: You look at the Pongi reference, now what it does show, it clearly shows that strap. [00:14:22] Speaker 02: Mr. Westbrook was guessing on how, well, there could be other structure, the strap could be narrow, and the sides of the housing might contact the animal's skin and so forth. [00:14:32] Speaker 01: But all that's required to contact the skin is the electrodes and the high points, right? [00:14:37] Speaker 01: No. [00:14:37] Speaker 02: Not in Claim 17, Your Honor. [00:14:39] Speaker 02: Claim 17 says that the housing has an upper surface that's designed to contact the animal's skin. [00:14:46] Speaker 02: Claim 17 has an entirely different [00:14:50] Speaker 02: element that we said is not. [00:14:55] Speaker 02: The claim 17 says it's the housing has an upper surface that is designed to contact the animal skin. [00:15:04] Speaker 02: That's why I am focusing on the business of the strap between the housing. [00:15:09] Speaker 02: Certainly the electrodes go through, but that's not relevant. [00:15:13] Speaker 02: Here it is. [00:15:13] Speaker 02: This appears on page 36 of our opening brief, Your Honor. [00:15:20] Speaker 02: We have it underlined. [00:15:22] Speaker 02: The housing having an inside surface designed for contacting the skin of the animal during use. [00:15:28] Speaker 02: Bongie clearly does not show that. [00:15:30] Speaker 02: Mr. Westrick was saying, well, that's how it could be. [00:15:33] Speaker 02: But again, that's pure guesswork on his part. [00:15:36] Speaker 02: And again, our argument is, well, the jury could accept that. [00:15:40] Speaker 02: The jury, importantly, is free to discount that and say we're not convinced. [00:15:46] Speaker 03: Wasn't there expert testimony to the effect that the inside of the collar housing would, as designed, repeatedly contact the skin of the dog during use? [00:15:56] Speaker 03: I'm sorry, Your Honor? [00:15:57] Speaker 02: Wasn't there expert testimony to that effect? [00:15:59] Speaker 02: Well, I think he tried to, on redirect, he tried to say that. [00:16:03] Speaker 02: He tried to say, well, it could be. [00:16:05] Speaker 02: I mean, the fact of the matter is we brought out he's never seen this. [00:16:09] Speaker 02: He doesn't know. [00:16:10] Speaker 02: He's guessing. [00:16:12] Speaker 02: Now, I believe during redirect, it was brought out, well, maybe couldn't the strap be narrow and couldn't the outside portions of the housing do this? [00:16:21] Speaker 02: But again, he didn't do that during his direct testimony. [00:16:23] Speaker 02: He didn't do that during my cross-examination. [00:16:26] Speaker 02: I believe it happened during redirect. [00:16:28] Speaker 02: And again, a jury may say, well, it's a little too late at this point. [00:16:34] Speaker 02: Again, they don't have to, I think by his own admission, it was guesswork. [00:16:39] Speaker 02: He's not saying, yes, I saw it, and that's how it is. [00:16:41] Speaker 02: He's saying it could be this way. [00:16:43] Speaker 02: And again, the jury is free to say, we don't buy it. [00:16:46] Speaker 01: So, you know, going back to that figure 12 I pointed you to before, you've got those electrodes 50 and 59. [00:16:54] Speaker 01: But I think maybe your question, one question I have for you is, is those parts that [00:17:01] Speaker 01: I've seen somewhere labeled as Parts D and E, the alleged high points, right? [00:17:08] Speaker 01: Why aren't they part of the inside surface of the housing? [00:17:11] Speaker 02: Because the housing, as determined by the court, says the housing is a fully enclosed structure for supporting the electrodes. [00:17:18] Speaker 02: This is part of flame construction. [00:17:19] Speaker 02: And when we were back here three years ago, this was part of the stuff we were talking about. [00:17:24] Speaker 01: Sure, but the claim says the collar housing, sure, it contains certain things. [00:17:28] Speaker 01: But it also says that it has an inside surface that's directed towards [00:17:32] Speaker 01: the animal. [00:17:33] Speaker 02: Well, then these things we were saying are not part of the inside surface. [00:17:38] Speaker 02: The inside surface would be the part that goes below the strap there. [00:17:42] Speaker 02: Again, it becomes very unclear. [00:17:43] Speaker 01: What about where the claim says the inside surface is the part that's directed to the animal, defines the inside surface as being the part directed to the animal. [00:17:50] Speaker 01: So this is clearly directed toward the animal. [00:17:55] Speaker 01: It says in the reference that it's integrally, I think the language is integrally [00:18:01] Speaker 01: embedded, or part of the, let me get the exact language, integrally molded. [00:18:11] Speaker 01: It's integrally molded. [00:18:12] Speaker 01: Integrally molded with the housing is the implication. [00:18:16] Speaker 02: Obviously, and what we tried to bring out, and I think we did bring out on cross-examination, is that these are portions external to what the housing is as defined by the patent, a fully enclosed structure. [00:18:27] Speaker 02: What we're saying is this has slots here to enable the scrap to go through. [00:18:30] Speaker 02: And furthermore, that those elements, D and E, do not support an electrode, which is another part of the definition of the housing as determined by the court during flame construction. [00:18:41] Speaker 02: So again, we get into this, it's not clear. [00:18:44] Speaker 02: Again, it's like, well, what's the housing? [00:18:48] Speaker 02: What's the inside surface? [00:18:49] Speaker 02: Is the inside surface that part that the electrodes actually go through, or is the inside surface these parts of D and E that don't even contact the electrodes? [00:19:00] Speaker 02: This is where it gets into sort of the house of cards here. [00:19:03] Speaker 02: We're not sure what Bongi actually shows. [00:19:06] Speaker 02: And given that it's unclear what's what in Bongi in the context of the claim destruction, I think the jury was free to say, well, this isn't clear, and I'm not convinced. [00:19:20] Speaker 00: OK, let's hear from the other side. [00:19:22] Speaker 00: Certainly, Your Honor. [00:19:24] Speaker 00: Thank you. [00:19:31] Speaker 04: Mr. Britton. [00:19:32] Speaker 04: May it please the court. [00:19:34] Speaker 04: As far as the order of proof that was discussed earlier, we were the DJ plaintiff in the case. [00:19:44] Speaker 04: And given the disposition of the case at the time that it was actually tried, the primary issue was the invalidity issue. [00:19:54] Speaker 04: We had not much based upon the court's construction of the claims [00:19:59] Speaker 04: We had not much of an infringement case. [00:20:01] Speaker 04: So I think that the court's determination that on their motion to reorder the case was that really we were the real party that had the burden of proof going into trial. [00:20:13] Speaker 04: So the court allowed us to go first. [00:20:16] Speaker 04: I don't see that it prejudiced them in any way. [00:20:20] Speaker 04: But getting to the more substantive issues, this court had said many times [00:20:28] Speaker 04: that the presumption of validity is a procedural device. [00:20:32] Speaker 04: It's not evidence in and of itself. [00:20:35] Speaker 04: The evidence, once we put on a prima facie case, the burden of coming forward with evidence shifted to the patentee. [00:20:48] Speaker 04: And we had put on evidence from Mr. Westrick, extensive testimony [00:20:55] Speaker 04: as to anticipation and obviousness. [00:21:00] Speaker 04: That testimony was corroborated by two other witnesses, Dr. Manini and Mr. Gehrig. [00:21:09] Speaker 04: I would say they did not testify as experts, but they testified as skilled in the art. [00:21:16] Speaker 04: The references themselves were before the court and the jury. [00:21:22] Speaker 04: So we were in a situation where the proof that went on in the court was solely the proof that we put on. [00:21:30] Speaker 04: And there was no rebuttal testimony given, no rebuttal evidence. [00:21:36] Speaker 04: Even if you throw out the testimony of Mr. Westrick, they still had an obligation to put on some kind of evidence that was directed to [00:21:52] Speaker 04: for example, Bonge not showing what it clearly shows. [00:21:58] Speaker 04: It shows electrodes that don't extend as high as the high point surfaces. [00:22:03] Speaker 04: It shows high point surfaces that clearly would contact the skin. [00:22:10] Speaker 04: Westrick's testimony was consistent with what the reference showed, even to the extent, I think, if you talk about the [00:22:22] Speaker 04: the little openings where the strap slides through, it's quite apparent that that collar strap has to be narrower than the overall dimension or the cross dimension of the collar housing. [00:22:37] Speaker 04: That suggests that along that whole side of the collar housing, you're going to have contact with the animal, not just at those points D and E, but you're going to have it all the way along the side. [00:22:52] Speaker 04: you are looking at a reference when you look at Bongey that clearly and convincingly shows electrodes that are shorter than the high point surfaces. [00:23:05] Speaker 04: If they're shorter, they can't be more than 3 eighths inch higher. [00:23:11] Speaker 04: So you have a clear and convincing showing there. [00:23:14] Speaker 04: And you have these points D and E that clearly contact [00:23:21] Speaker 04: the skin of the animal during use. [00:23:23] Speaker 04: So 3 and 17 are anticipated. [00:23:29] Speaker 04: I've got plenty of time left, but I fear that in taking it, I'm just going to parrot what I've already said in my brief. [00:23:39] Speaker 04: Does the panel have specific questions that concern it? [00:23:45] Speaker 00: Any questions for counsel? [00:23:47] Speaker 00: Any questions for counsel? [00:23:49] Speaker 00: OK, thank you. [00:23:49] Speaker 04: I will surrender my time. [00:23:55] Speaker 00: Okay, you have a couple of minutes, but limited to rebuttal, please. [00:23:59] Speaker 02: Certainly, Your Honor. [00:24:01] Speaker 02: I take exception to the statement that we did not put on any sort of case, that we did not attack anything. [00:24:07] Speaker 02: Very clearly, they did not want to admit infringement. [00:24:10] Speaker 02: They bounced our infringement expert [00:24:12] Speaker 02: And I had to make the case for infringement through cross-examination of Mr. Westrick. [00:24:17] Speaker 02: He was able to read the claims on a number of pieces of prior art over the radio system's objections. [00:24:22] Speaker 02: I got him to do the same with the accused product, and he was forced to admit that there was infringement. [00:24:28] Speaker 02: So that was, in fact, contested. [00:24:30] Speaker 02: Second, we did put on rebuttal testimony, at least with respect to obviousness. [00:24:36] Speaker 02: Mr. Lauder testified during his direct examination [00:24:40] Speaker 02: that during his direct testimony that there was a long felt need here. [00:24:42] Speaker 02: He saw the dogs were getting sores on their necks because these collars were too tight and the electrodes were digging into their necks. [00:24:50] Speaker 02: Nobody had done that before. [00:24:51] Speaker 02: He saw the problem. [00:24:53] Speaker 02: He solved the problem. [00:24:54] Speaker 02: He testified that at a trade show, radio systems president came up to him and talked to him for a half hour about this, talking about all this great, was very interested in this technology. [00:25:04] Speaker 02: Shortly after Mr. Lawler came up with this, Radio Systems comes out with its infringing collars, and they start touting for the very first time that these collars are comfortable for the dogs, and they do not cause sores. [00:25:16] Speaker 02: So there was rebuttal evidence put on during this case, and certainly with respect to the obviousness. [00:25:22] Speaker 02: I think we addressed this in a brief. [00:25:24] Speaker 02: I'm going over this. [00:25:25] Speaker 02: So I would simply want to bring that out. [00:25:27] Speaker 02: And then as far as the strap on the bongi collar goes, we don't know whether the strap is wide [00:25:33] Speaker 02: wider than the housing or not. [00:25:34] Speaker 02: We don't know whether these lugs, and I brought this out again across, do the lugs stick out to the side and the strap goes over the entire housing? [00:25:41] Speaker 02: We don't know. [00:25:42] Speaker 02: Nobody's seen this thing and you can't tell from the pictures. [00:25:44] Speaker 02: Furthermore, if you have a strap, the strap's going to lie on top of the housing. [00:25:48] Speaker 02: There's going to be a gap. [00:25:49] Speaker 02: Do we know that that gap is going to be big enough or small enough so that it contacts the animal's skin? [00:25:56] Speaker 02: We don't know that either. [00:25:57] Speaker 02: Do we know that it's designed for contacting the animal's skin? [00:26:01] Speaker 02: not whether there's inadvertent contact. [00:26:04] Speaker 02: Mr. Waller designed his patent so that it conforms to the shape of the animal. [00:26:09] Speaker 02: It's designed to contact the skin, support the skin. [00:26:11] Speaker 02: It's shown in one of his figures where he shows the skin going over the bumps and how it makes contact with the animal. [00:26:18] Speaker 02: That's what's meant by designed to contact the skin. [00:26:21] Speaker 02: We don't know that from Bongi. [00:26:22] Speaker 02: So for, again, those reasons, because of all these questions, because these things are unclear, and because nobody could testify clearly what Bongi was doing, [00:26:30] Speaker 02: the jury had no choice but to say, well, okay, we're not convinced. [00:26:34] Speaker 02: And for that reason, Your Honor, I would submit that the jury was correct in this, or more importantly, that there was substantial evidence to support the jury's finding, and whether the district court likes that or not, but that's our system. [00:26:47] Speaker 02: The jury made the call, they did it based on proper evidence, and the verdict should be reinstated. [00:26:52] Speaker 00: Thank you, Your Honor. [00:26:54] Speaker 00: Okay. [00:26:54] Speaker 00: Thank you, Mr. Mayor. [00:26:55] Speaker 00: Mr. Britton, the case is taken under submission. [00:26:58] Speaker 00: That concludes the arguments for this morning. [00:27:01] Speaker 04: All rise. [00:27:11] Speaker 04: The Court is adjourned from day to day.