[00:00:00] Speaker 04:
pre for Rudolph vs. Kamtek.

[00:00:02] Speaker 04:
Mr. Brumber, please proceed.

[00:00:15] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:17] Speaker 01:
I'd like to reserve five minutes for rebuttal.

[00:00:19] Speaker 01:
When this case was previously before the Court in 2011, it held that the District Court had misconstrued the terms wafer and plurality of wafers, and it adopted

[00:00:29] Speaker 01:
a narrower construction of both terms.

[00:00:31] Speaker 01:
This was not a trivial ruling.

[00:00:34] Speaker 01:
The word wafer is at the foundation of both of the claims at issue in this case, and by narrowing the construction of that claim, this court substantially narrowed the scope of the claims.

[00:00:46] Speaker 01:
The district court failed to recognize this, and it reinstated on summary judgment the infringement ruling that this court had vacated.

[00:00:54] Speaker 02:
That was error.

[00:00:55] Speaker 02:
When you say this was not a

[00:00:57] Speaker 02:
you know, a minor ruling, that's because at the time you told us that it did have a specific and relatively dramatic effect on infringement and yet you went back and had an opportunity to present your evidence of infringement and it turned out that the change in the construction didn't really matter.

[00:01:18] Speaker 01:
It didn't matter because the district court basically turned this court's rationale on its head.

[00:01:23] Speaker 01:
Remember the issue before

[00:01:25] Speaker 01:
was whether the district court was correct in saying that a wafer can be two dyes, and essentially that all it is is a multiple number of dyes.

[00:01:33] Speaker 01:
Now, we made two arguments in response to that.

[00:01:35] Speaker 01:
We said, first of all, that a wafer is a discrete object, and therefore you can't divide up a single wafer into notional dyes.

[00:01:43] Speaker 02:
But we said that you could.

[00:01:45] Speaker 01:
What's that?

[00:01:45] Speaker 02:
We said that one dye could be a wafer.

[00:01:48] Speaker 01:
Yes.

[00:01:49] Speaker 01:
But what this court also recognized is that there's a distinction in the patent between dyes and wafers.

[00:01:55] Speaker 01:
This court recognized that in the description of the preferred embodiment, the specification distinguishes between wafer training and dye training.

[00:02:06] Speaker 01:
And even more importantly, it recognized that claim 10 of the parent patent describes a device for inspecting substrata.

[00:02:17] Speaker 01:
That is for inspecting dyes on substrata.

[00:02:22] Speaker 01:
Now that's a dye inspection device.

[00:02:24] Speaker 01:
The patents here

[00:02:25] Speaker 01:
are for inspecting substrata, that is for wafer inspection.

[00:02:30] Speaker 01:
And the undisputed evidence below showed that the Falcon machine that's at issue here is a dye inspection machine.

[00:02:37] Speaker 01:
Our expert Mr. Miller, this is on page 6717 of the appendix, testified that the Falcon machine only inspects dyes and it doesn't look at the other features of a wafer such as the streets or the edge.

[00:02:54] Speaker 01:
And it develops a model solely of the die.

[00:02:56] Speaker 02:
It doesn't look at the other features, but it uses wafers for the inspection process.

[00:03:00] Speaker 02:
And your expert conceded that.

[00:03:02] Speaker 01:
It does, Your Honor.

[00:03:03] Speaker 01:
But the question is, what's the scope of the patent here?

[00:03:07] Speaker 01:
And these claims here are for inspection of a substrata.

[00:03:13] Speaker 01:
They're not for inspection of a die on substrata.

[00:03:16] Speaker 01:
That's claim 10 of the parent patent.

[00:03:21] Speaker 01:
This claim must be for something else.

[00:03:23] Speaker 01:
And something else is a wafer in all of its aspects, not just the dots.

[00:03:28] Speaker 02:
But we didn't say that.

[00:03:30] Speaker 02:
We had a very specific claim construction that included the fact that a wafer could constitute a single die.

[00:03:37] Speaker 01:
I think what the court said is that a wafer that includes a single die may be a wafer.

[00:03:46] Speaker 01:
But that doesn't mean that the die is the only thing that you look at on the wafer.

[00:03:51] Speaker 01:
And that's really what the issue is here.

[00:03:53] Speaker 01:
And this court, as I said on page 1258, recognized that there's a distinction.

[00:03:56] Speaker 01:
We didn't say that.

[00:03:56] Speaker 04:
We didn't say the die isn't the only thing you look at on the wafer.

[00:03:59] Speaker 04:
What we said was a plurality of wafers means more than one wafer.

[00:04:04] Speaker 04:
But we didn't say that's because you look at other characteristics of the wafer in the process of forming a model.

[00:04:10] Speaker 04:
We just said a plurality of wafers requires more than one.

[00:04:13] Speaker 04:
A group of people is not a single individual.

[00:04:17] Speaker 04:
That's all we said.

[00:04:18] Speaker 04:
That was the only holding that was at issue in that case.

[00:04:20] Speaker 04:
That's all we said.

[00:04:21] Speaker 01:
Well, I'm not going to argue with you, Your Honor, about what the holding was.

[00:04:24] Speaker 01:
But what the Court recognized is that the specification distinguishes between wafers and dyes.

[00:04:30] Speaker 04:
If you look at page 1258... Well, the specification distinguishes between wafers and dyes with regard to the only issue presented to the Court.

[00:04:37] Speaker 04:
which is two dyes on a single wafer don't amount to a plurality of wafers.

[00:04:42] Speaker 04:
That amounts to two dyes on a single wafer.

[00:04:45] Speaker 04:
That's not a plurality of wafers.

[00:04:47] Speaker 01:
I think if we set aside what this court ruled and look only at the specification, what the specification says is that you can input either wafers or dyes.

[00:05:00] Speaker 01:
It talks about a plurality of known good dye or wafers.

[00:05:04] Speaker 01:
So it's making a distinction between dyes and wafers.

[00:05:07] Speaker 01:
And even more sharply, that distinction is made in claim number 10.

[00:05:09] Speaker 04:
We remanded for the sole purpose of infringement taking place using a plurality of waivers.

[00:05:14] Speaker 04:
That's it.

[00:05:15] Speaker 04:
That's what we told the court to do, and that's what he did.

[00:05:17] Speaker 04:
So I don't understand what you now want to reopen the entire case somehow, but that's not where we are at this phase.

[00:05:27] Speaker 01:
Well, Your Honor, I don't think we want to reopen the entire case.

[00:05:30] Speaker 01:
What we want to make sure is that the

[00:05:32] Speaker 01:
the ruling that's here is consistent with this court's construction of the term wafers and consistent with the fact that there is a distinction between wafers and dyes in the patent.

[00:05:43] Speaker 02:
No, you lost once, you come up, and you give us a very specific set of issues on appeal.

[00:05:50] Speaker 02:
Right.

[00:05:51] Speaker 02:
And we rule on those issues.

[00:05:52] Speaker 02:
And now you go down and you're coming up with a whole different notion of what the claims mean, a whole different non-infringement theory.

[00:06:02] Speaker 02:
That wasn't available to you.

[00:06:04] Speaker 01:
Your Honor, I would beg to differ, because as you recall, and you can see it from our briefs that were previously filed, we had two theories.

[00:06:10] Speaker 01:
One was that wafers are discrete objects.

[00:06:14] Speaker 01:
That was one of our theories.

[00:06:15] Speaker 01:
But our second theory was that the patent draws a distinction between dyes and wafers.

[00:06:21] Speaker 01:
And that part of our argument, which I think this Court's, which I thought this Court's discussion on page 1285 confirmed, that's the part that the District Court didn't understand.

[00:06:32] Speaker 01:
because what the district court said was a die is a wafer, and therefore there is no distinction between a wafer model and a die model.

[00:06:38] Speaker 02:
No, that's not what the district court said.

[00:06:40] Speaker 02:
The district court said exactly what we said, which is that a wafer has to be an independent object, but it could have only a single die on it.

[00:06:50] Speaker 02:
And that's what the district court said.

[00:06:52] Speaker 01:
Right.

[00:06:52] Speaker 02:
And that's exactly what we said.

[00:06:54] Speaker 01:
But the question is whether a wafer model is the same as a die model.

[00:06:59] Speaker 01:
And that's clearly presented by claim number 10,

[00:07:02] Speaker 01:
of the parent patent because that is a method for inspecting dye on substrata.

[00:07:09] Speaker 01:
What we have here, claim number one, is a system for inspecting substrata.

[00:07:17] Speaker 01:
So there has to be a difference between inspecting dye on a substrata and substrata.

[00:07:22] Speaker 01:
And the difference is that there are other aspects to a substrata than just the dye.

[00:07:27] Speaker 01:
And those aspects are not captured by the foundation.

[00:07:29] Speaker 04:
Well, let's just assume that we think you're foreclosed from making those arguments.

[00:07:34] Speaker 01:
Right.

[00:07:34] Speaker 04:
Because we think the remand was clear.

[00:07:36] Speaker 04:
We think that the only argument you were permitted on remand was to argue about whether or not the accused infringing devices use a plurality of wafers in order to create a model.

[00:07:48] Speaker 04:
Right.

[00:07:48] Speaker 04:
So let's assume that we think the district court did all of that exactly right.

[00:07:52] Speaker 04:
Do you have any other arguments for us today?

[00:07:55] Speaker 01:
Yes.

[00:07:56] Speaker 01:
characterize the issue correctly, and that's whether multiple wafers are used to create a model.

[00:08:01] Speaker 01:
And the evidence that was presented was that multiple wafers are used in training.

[00:08:06] Speaker 01:
They're used in the inspection parameters.

[00:08:09] Speaker 01:
Now, inspection parameters are the fine-tuning of the model.

[00:08:11] Speaker 04:
What about the adjusted gold?

[00:08:13] Speaker 01:
The adjusted gold deals with the inspection parameters.

[00:08:16] Speaker 04:
And again... It uses multiple wafers.

[00:08:19] Speaker 01:
It uses multiple wafers, but it doesn't use it to make the model.

[00:08:23] Speaker 01:
What it uses it

[00:08:24] Speaker 01:
is for adjusting the inspection parameters.

[00:08:27] Speaker 01:
And if you look at the specification on columns 12 and 13 and 14, you'll see that there is a distinction between the two.

[00:08:36] Speaker 04:
Well, claim three states pretty clearly that it's training a model as to parameters of a good wafer via optical viewing of multiple known good wafers.

[00:08:46] Speaker 04:
But claim one doesn't actually say that.

[00:08:48] Speaker 04:
It just says, it doesn't say anything about a model at all.

[00:08:51] Speaker 04:
It doesn't even use those words.

[00:08:52] Speaker 04:
It says, a visual inspection device for visually inputting a plurality of known good wafers during training.

[00:08:59] Speaker 04:
That's quite a bit broader than claim three.

[00:09:01] Speaker 04:
To the extent that I described it as forming a model, no doubt that was informed by my knowledge of claim three and the specification.

[00:09:07] Speaker 04:
But claim one doesn't say that.

[00:09:09] Speaker 01:
Right.

[00:09:09] Speaker 01:
But claim one was also construed.

[00:09:11] Speaker 01:
The term training was construed by the trial court to be examining wafers to develop a model of a good quality wafer.

[00:09:19] Speaker 01:
So it was construed to be the same and to say that you have to be construing the model.

[00:09:25] Speaker 01:
You have to be using a plurality of waivers to develop the model.

[00:09:28] Speaker 02:
But you didn't appeal the training construction the first time around.

[00:09:31] Speaker 02:
Why should we reopen everything?

[00:09:33] Speaker 01:
We're not reopening that.

[00:09:34] Speaker 01:
I'm actually relying upon that.

[00:09:36] Speaker 01:
I'm saying that the claim one was construed to have training of the model, just as claim three literally does.

[00:09:44] Speaker 01:
And the testimony that was presented below

[00:09:47] Speaker 01:
was the use of multiple waivers in creating inspection parameters, which is a different step in the training process.

[00:09:53] Speaker 01:
It's the fine-tuning of the model.

[00:09:55] Speaker 04:
Boy, that sounds often fact-specific.

[00:09:57] Speaker 01:
It is fact-specific, Your Honor, but the... Let me ask you a little law question, okay?

[00:10:02] Speaker 03:
Yes.

[00:10:03] Speaker 03:
You're arguing that the District Court erred in applying what you call a punitive 10% statutory interest rate.

[00:10:10] Speaker 03:
Yes.

[00:10:11] Speaker 03:
And you reference General Mills' V5 Star

[00:10:16] Speaker 03:
custom foods for the proposition that Minnesota, before August 2009, used the one-year Treasury bill, right?

[00:10:26] Speaker 03:
Right.

[00:10:26] Speaker 03:
So you're familiar with the case?

[00:10:29] Speaker 03:
Yes, Your Honor.

[00:10:30] Speaker 03:
Okay.

[00:10:30] Speaker 03:
So in that case, the district court says, the statute's text is abundantly clear.

[00:10:38] Speaker 03:
Had the Minnesota legislature intended for different prejudgment interest rates to apply to damages incurred

[00:10:44] Speaker 03:
before and after August 1, 2009, it could have easily said so.

[00:10:48] Speaker 03:
The court will not ignore what it believes is the Minnesota legislature's clear mandate.

[00:10:53] Speaker 03:
Thus, the court determined that, so given the court's determination and your citation of that case, why should we veer away from it?

[00:11:05] Speaker 01:
Well, I think the problem is that the 10% rate is not a compensatory rate.

[00:11:10] Speaker 01:
The Minnesota statute has the two tiers to it.

[00:11:14] Speaker 01:
It has a tier which is based upon the treasury rate for most judgments.

[00:11:20] Speaker 01:
And then it has the 10% rate, which is for judgments above $50,000.

[00:11:23] Speaker 01:
Now the treasury rate is traditionally the compensatory interest rate.

[00:11:27] Speaker 01:
The 10% rate, you don't know why the Minnesota legislature adopted that.

[00:11:31] Speaker 01:
There's no legislative history on it.

[00:11:33] Speaker 01:
I haven't seen any case law on it.

[00:11:34] Speaker 01:
But it's clearly greater than the compensatory rate.

[00:11:38] Speaker 01:
And under this court's decision in Bayer-Ret and the Supreme Court's decision in Devax,

[00:11:43] Speaker 01:
it's improper to use a non-compensatory rate.

[00:11:48] Speaker 03:
Are you arguing that the, because I don't see this, are you arguing the Minnesota statute is unconstitutional?

[00:11:54] Speaker 01:
No, it's not unconstitutional, but it's not compensatory.

[00:11:57] Speaker 01:
And noticeably absent from Rudolph's Reef is any attempt to show that this 10% rate is compensatory.

[00:12:04] Speaker 01:
But let me point out one other thing that I think may not have been as clear as should be about the prejudgment interest.

[00:12:09] Speaker 01:
The original prejudgment interest that was awarded through

[00:12:12] Speaker 01:
the judgment in 2011, that was $1.2 million.

[00:12:16] Speaker 01:
This was remanded to the district court.

[00:12:18] Speaker 01:
The district court used a different methodology on remand.

[00:12:22] Speaker 01:
It used the 10% rate, not just for the period in which it had been used previously, but it expanded it for the entire court.

[00:12:29] Speaker 01:
And that's what General Mills says.

[00:12:30] Speaker 01:
And that expanded what had previously been $1.2 million for the period to $3 million.

[00:12:36] Speaker 01:
Now, how that could be compensatory is beyond me, Your Honor.

[00:12:41] Speaker 01:
And the fact that we have a $7 million pre-judgment interest, which is approximately equal to the amount of the judgment here, which was expanded by $3 million after this court remanded, I would submit is improper.

[00:12:54] Speaker 01:
It's clearly not a compensatory rate.

[00:13:00] Speaker 01:
I'd like to talk just briefly about the damages issue.

[00:13:02] Speaker 04:
You're into your rebuttal time.

[00:13:04] Speaker 04:
We have two minutes left to use if you'd like.

[00:13:07] Speaker 01:
I'd just like to say two problems with the damages, first of all,

[00:13:09] Speaker 01:
There's no showing that there was any evidence justifying the amount that the jury awarded the 60% amount.

[00:13:16] Speaker 01:
And in addition, this court's narrowed claim construction raised an issue whether there was a non-infringing alternative, which was basically removing the adjusted goal feature.

[00:13:26] Speaker 01:
Thank you.

[00:13:26] Speaker 01:
I'll reserve the remainder of my time.

[00:13:30] Speaker 04:
Mr. McDonnell?

[00:13:36] Speaker 00:
I will start by asking the court if they have any particular areas they want me to address first.

[00:13:43] Speaker 02:
Why don't you start where he left off with the damages?

[00:13:47] Speaker 00:
So that's the lost profits award and what the district court did in a very thorough analysis is it treated their request for a new trial as in effect a summary judgment.

[00:13:56] Speaker 00:
Can you show me a dispute of material fact that would have changed the damages equation for the original lost profits award?

[00:14:03] Speaker 00:
The original award was

[00:14:04] Speaker 00:
uh... contact in august slash root off for the two uh... uh... so suppliers in the marketplace or at minimum for the two primary competitors with very small their competition there was support as the district court rejected your two supplier market argument actually specifically said there was support for both of those in its decision and that it pages eight two sixty six two sixty eight of the appendix that's where judge davis talked about that i believe he said that both theories were supported by by the record and he had quite a long site of uh...

[00:14:34] Speaker 00:
exhibits as well as trial testimony in there, including things like lost sales reports by August, over a dozen of them, I think, are listed, where he says the record is that Rudolph lost the sale to Kamzak over and over again.

[00:14:47] Speaker 02:
But even if we agree with Judge Davis's analysis on Jamal that the original jury award was supported by substantial evidence, the question is, is there anything that our remand did

[00:15:01] Speaker 02:
that actually narrowed the scope of infringement that would raise some question about this non-infringing alternative.

[00:15:08] Speaker 00:
Right.

[00:15:08] Speaker 00:
That's the issue that Judge Thunheim looked at and he said nothing changed because all the same 36 Falcons that were found infringing, every single one of them the first time around were found to infringe on remand.

[00:15:19] Speaker 00:
Again, every single one of those found to infringe.

[00:15:22] Speaker 04:
But they may well only infringe by virtue of the adjust to gold feature.

[00:15:27] Speaker 04:
That may be the only reason they infringe.

[00:15:30] Speaker 04:
Any machine, this is a machine claim, that is capable of infringing is an infringing machine.

[00:15:35] Speaker 04:
So you win on the 36 machines are still infringing.

[00:15:40] Speaker 04:
But I think the heart of the question is how easy would it have been to have manufactured a version of the machine removing the adjust to gold feature?

[00:15:51] Speaker 04:
It seems like it would have been pretty simple.

[00:15:53] Speaker 04:
It seems like they would have been motivated to do it because it actually slowed down the efficiency of the machine otherwise and one of the goals was speed.

[00:16:00] Speaker 04:
And it seems like it may have been a little used feature on top of it.

[00:16:03] Speaker 04:
And so those are all fact questions.

[00:16:05] Speaker 04:
I have no idea whether they're correct or not.

[00:16:07] Speaker 04:
It's what they allege.

[00:16:08] Speaker 04:
I'm not saying they're necessarily correct, but they are fact questions.

[00:16:11] Speaker 04:
So if that's the nature of the dispute, why didn't it have to go to a jury as to whether there may not have actually been on the market in 2009 a version of this Falcon without the adjust to gold, but it would have been a very easy, extremely simple

[00:16:27] Speaker 04:
redesign that could have been offered as a non-infringing alternative?

[00:16:31] Speaker 04:
And that's the question.

[00:16:33] Speaker 00:
So to show that's a viable alternative would be relevant.

[00:16:36] Speaker 00:
They've got to show it doesn't infringe, it's acceptable, and it's available.

[00:16:40] Speaker 00:
On the infringement issue, Your Honor, they supposedly have a document from early 2012, February of 2012, right after the remand, that describes this hypothetical other design.

[00:16:50] Speaker 00:
We then have supplemental discovery on remand

[00:16:53] Speaker 00:
We asked them for any other technical documents about the Falcon.

[00:16:56] Speaker 00:
They said, we have no other documents.

[00:16:58] Speaker 00:
They did not give us that document.

[00:16:59] Speaker 00:
They stipulated for purposes of infringement that every Falcon works the same.

[00:17:04] Speaker 00:
That's what their expert, Dr. Mellor, said in 2012.

[00:17:07] Speaker 00:
Even in his rebuttal report.

[00:17:09] Speaker 00:
Let me ask you this.

[00:17:10] Speaker 03:
Did CAMTEC raise that non-infringing alternative argument prior to the issuance of the

[00:17:18] Speaker 03:
court's summary judgment decision?

[00:17:21] Speaker 00:
Not before the infringement decision year.

[00:17:22] Speaker 00:
That was in March of 2014.

[00:17:25] Speaker 00:
We did not know that they had this report of the pre-design.

[00:17:27] Speaker 00:
Judge Toonheim did not know about it until after that.

[00:17:30] Speaker 00:
You know, they had stipulated that in 2012 that they would not rely on any documents regarding the operation of the Falcon other than the ones that they had already produced to us.

[00:17:39] Speaker 00:
So then they wouldn't reach that agreement by pulling out this new document after the summary judgment.

[00:17:44] Speaker 00:
That's exactly what happened here.

[00:17:46] Speaker 00:
So as Judge Thunheim found, he was not going to re-litigate the issue of whether any falcons, any of those falcons, that they have, infringe or not.

[00:17:54] Speaker 00:
That was decided on summary judgment.

[00:17:55] Speaker 00:
They had their chance to put up their evidence on this alternative design.

[00:17:58] Speaker 00:
They made a conscious decision not to do so.

[00:18:01] Speaker 00:
Their expert says nothing about it.

[00:18:02] Speaker 00:
He says they're all the exact same.

[00:18:04] Speaker 04:
Time out.

[00:18:04] Speaker 04:
To be clear, I want to make sure I understand what you're saying to us, and it reconciles with what I'm reading.

[00:18:10] Speaker 04:
So what you said to us is they didn't raise it in the context of non-infringement.

[00:18:14] Speaker 04:
And that's absolutely true.

[00:18:16] Speaker 04:
It's because the judge held we're looking at a machine and if the machine sells with an adjustable feature, it's infringing.

[00:18:22] Speaker 04:
But in 2014, page 19, they had raised no later than April 2014, which is after infringement, the argument about damages.

[00:18:33] Speaker 04:
that it may not, the idea that adjusted gold could be a redesign that's easy and could be a non-infringing alternative in the market doesn't go to non-infringement because the devices sold did have it and so therefore they are infringing, but it absolutely goes to the question of lost profit.

[00:18:48] Speaker 04:
They raised it no later than April of 2014 with the court below, which was after he ruled on the infringement, but before he made a decision on what to do with damages.

[00:18:57] Speaker 04:
So I'm not seeing that argument as waived unless I'm misunderstanding the record.

[00:19:01] Speaker 00:
Well, here's one big part of that.

[00:19:02] Speaker 00:
If you look at Appendix 8984 to 8986, that's a part of our brief where we talk about what they didn't disclose.

[00:19:09] Speaker 00:
And in there, we point out, in the record, Camp Tech said they would not rely on any documents not disclosed.

[00:19:14] Speaker 00:
It did not limit that assurance to the infringement issue.

[00:19:17] Speaker 00:
or else for any purpose.

[00:19:18] Speaker 00:
And consistent with that, their expert, Miller, in his rebuttal report on June 1st, he talks about non-infringing alternatives at appendix 8421.

[00:19:27] Speaker 00:
And at paragraph 162, the only non-infringing alternative he talks about is, quote, the falcon itself.

[00:19:35] Speaker 00:
He doesn't say there's this alternative design that also, or alternatively, would be yet another non-infringing alternative, number one.

[00:19:42] Speaker 00:
And if I could talk about that infringement issue just for a moment, Your Honor.

[00:19:45] Speaker 00:
The adjusted goal, there's no dispute with their expert or in the record, but the adjusted goal had to do with later amendments to the model, not the initial setup.

[00:19:55] Speaker 04:
They didn't know until you moved, made your motion to reinstate the same damage award.

[00:20:01] Speaker 04:
How could they have known that they needed to raise the idea of an issue that goes exclusively to lost profits, which is whether or not the Falcon could be changed to have a non-infringing

[00:20:14] Speaker 04:
version of it.

[00:20:16] Speaker 04:
And then they promptly moved.

[00:20:17] Speaker 04:
They moved, I guess, at 9407 and 08 of the appendix.

[00:20:21] Speaker 04:
And you can see also the discussion on page 19 of the Gray brief.

[00:20:25] Speaker 04:
They moved immediately and explained all of this to the district court.

[00:20:29] Speaker 04:
So why is that too little too late at that point in time?

[00:20:33] Speaker 00:
Well, they made record right away in 2012 about their desire for a new trial on damages.

[00:20:39] Speaker 00:
And there was an initial ruling by the magistrates.

[00:20:40] Speaker 04:
And the judge said, well, let's put that on hold.

[00:20:42] Speaker 00:
Let's look at summary judgment.

[00:20:44] Speaker 00:
And so they did file an expert report where they talked about non-infringing alternatives in 2012 on June 1st.

[00:20:49] Speaker 00:
That's the one I was just quoting from paragraph 162.

[00:20:51] Speaker 00:
They were well aware of that issue.

[00:20:53] Speaker 00:
They were making their record.

[00:20:54] Speaker 00:
They knew they had to be making their record.

[00:20:56] Speaker 00:
That was what was supposed to be happening.

[00:20:58] Speaker 00:
In 2012, before the summary judgment decision, what's going to be your position on why you get a new trial?

[00:21:03] Speaker 00:
Why would there be any change here?

[00:21:05] Speaker 00:
That's why they were talking.

[00:21:06] Speaker 00:
That's the only reason they'd be talking about non-infringing alternatives.

[00:21:09] Speaker 00:
in that 2012 expert report.

[00:21:11] Speaker 00:
So this wasn't a new issue after this.

[00:21:12] Speaker 04:
I hear what you're saying, but my problem is what you would like me to do, it seems like is conclude they raised it too late in the process and we're not going to go back and unravel it now.

[00:21:22] Speaker 04:
The problem is they did raise it repeatedly with the district court and I don't see you where he addressed it.

[00:21:28] Speaker 04:
I don't see where he seemed to appreciate that what they were arguing is a simple redesign of the Falcon by removing the adjust to gold feature.

[00:21:36] Speaker 04:
would cause it to be a non-infringing alternative, which would undermine the lost profits finding.

[00:21:42] Speaker 04:
So he didn't find.

[00:21:43] Speaker 04:
It's easy for me to affirm a waiver decision by a district court.

[00:21:46] Speaker 04:
We do that all the time.

[00:21:48] Speaker 04:
Or for him to say it was untimely.

[00:21:50] Speaker 04:
Their argument is untimely.

[00:21:52] Speaker 04:
But he didn't do any of that.

[00:21:53] Speaker 04:
He made no findings.

[00:21:54] Speaker 04:
He seemed to have not appreciated the nature of the argument.

[00:21:57] Speaker 00:
Well, in the new trial decision, he did say we're not going to re-litigate the issue of whether any falcons infringe again.

[00:22:02] Speaker 04:
I already decided that.

[00:22:03] Speaker 04:
That's not the same issue.

[00:22:04] Speaker 00:
That's pretty close, though, Your Honor, to say they had their chance.

[00:22:06] Speaker 04:
No, not at all close.

[00:22:07] Speaker 04:
Whether a falcon infringes is a different question about whether a falcon can be redesigned and entered into the market as a non-infringing alternative solely for lost-profits purposes.

[00:22:16] Speaker 00:
Well, they did not certainly bring that issue.

[00:22:18] Speaker 00:
And they have an extra report that says, I'm going to listen on infringing alternatives.

[00:22:21] Speaker 00:
And they don't identify that one, Your Honor.

[00:22:23] Speaker 00:
I think you can't blame the judge for not

[00:22:25] Speaker 00:
considering that.

[00:22:25] Speaker 00:
Let's turn to separate from the infringing issue of adjust to gold, the hypothetical design.

[00:22:30] Speaker 00:
I think it is clearly, you have a, well, if we stick with infringement for just a moment, Mr. James and the evidence was during initial setup, if you look at Mr. James' declaration, that's when they used that 50 plus wafers.

[00:22:43] Speaker 00:
Dr. Miller, Camtech's expert admits that adjust to gold only has to do with what he calls later steps, not initial setup.

[00:22:50] Speaker 00:
And as our experts showed, even when they brought up this,

[00:22:54] Speaker 00:
a purported hypothetical redesign for the new trial.

[00:22:57] Speaker 00:
Even if you accept this coming out, they haven't, the CAMTEC made no record that even without Adjust-to-Gold, it wouldn't be capable of being trained with multiple wafers, and it clearly would be.

[00:23:08] Speaker 00:
In fact, as Mr. James said, they didn't really use Adjust-to-Gold.

[00:23:11] Speaker 00:
That wasn't a commonly used thing, but yet for initial setup, they would use all these wafers.

[00:23:14] Speaker 00:
So that's number one on infringement.

[00:23:16] Speaker 00:
Number two, though, you still have the issues of acceptability and availability on the market.

[00:23:20] Speaker 00:
Grain processing and the Medtronic DePuyt case make it clear that

[00:23:24] Speaker 00:
When the alleged non-infringing alternative was not in fact on the market during the relevant damages period, there is a burden on CAMTEC as the infringer to prove it's acceptable and available.

[00:23:34] Speaker 00:
The burden is not on us.

[00:23:36] Speaker 00:
All of their briefing on this issue though said, oh, Rudolph hasn't met its burden to show that the alternative is not acceptable or available.

[00:23:45] Speaker 00:
We didn't have a burden.

[00:23:46] Speaker 00:
They put in absolutely no evidence.

[00:23:48] Speaker 00:
on the acceptability of this alternative.

[00:23:50] Speaker 00:
Instead, the evidence is that every single customer for a Falcon, according to Mr. James, needed that model made with many, many wafers to make sure it's a really good model.

[00:23:59] Speaker 00:
No customer ever wanted to use a Falcon with a model based on just one single discrete wafer.

[00:24:04] Speaker 00:
And so all the evidence is to the contrary, but they put nothing in.

[00:24:08] Speaker 00:
even after the summary judgment, even when they're asking for a new trial.

[00:24:11] Speaker 00:
They did not proffer, they did not propose any evidence on the issue of acceptability.

[00:24:15] Speaker 04:
Wasn't there a declaration submitted by CAMTEC that without the just a gold feature it would not infringe?

[00:24:22] Speaker 00:
He said that they, he didn't say that it would not train without any more than one waiver.

[00:24:27] Speaker 00:
He didn't say that in his declaration as our expert pointed out.

[00:24:30] Speaker 00:
He didn't

[00:24:31] Speaker 00:
deny that it was capable of being trained with more than one wafer in fact, even without a justice goal.

[00:24:36] Speaker 00:
Our expert pointed that out on their reply.

[00:24:38] Speaker 00:
They didn't dispute that.

[00:24:40] Speaker 00:
But even apart from that, you got the acceptability issue.

[00:24:42] Speaker 00:
There's zero evidence of that being acceptable in the market.

[00:24:45] Speaker 00:
The burden was on them to come forward with something on summary.

[00:24:49] Speaker 00:
In effect, the judge treated it appropriately.

[00:24:51] Speaker 00:
As summary judgment, show me a material fact that you could go to trial with on a new trial on damages that we actually have to have a jury make a decision about.

[00:24:59] Speaker 00:
CanTech provided absolutely nothing.

[00:25:07] Speaker 00:
Any other questions?

[00:25:20] Speaker 02:
Thank you.

[00:25:20] Speaker 02:
Again, I want to start where he left off.

[00:25:22] Speaker 02:
That is my concern.

[00:25:24] Speaker 02:
You have a very generalized statement from an expert that simply says,

[00:25:28] Speaker 02:
you know, that if you remove the adjusted gold, it would have no effect on the multiple other ways that you could do this training.

[00:25:35] Speaker 02:
But you misread grain processing.

[00:25:38] Speaker 02:
Grain processing just doesn't say there must be some theoretical non-infringing alternative.

[00:25:42] Speaker 02:
You have to at least proffer some evidence from which the trial judge could conclude that you've raised a material issue of fact on the fact that it would be an acceptable substitute

[00:25:54] Speaker 02:
and that consumers would find it to be an acceptable substance.

[00:25:58] Speaker 02:
You didn't raise anything.

[00:26:00] Speaker 01:
I think Mr. James' testimony provided that.

[00:26:02] Speaker 01:
Where?

[00:26:03] Speaker 02:
I don't see anything more than the general statement that I just said.

[00:26:08] Speaker 01:
No, this is in Mr. James' deposition testimony.

[00:26:12] Speaker 01:
And there he was asked about the adjusted gold feature.

[00:26:15] Speaker 01:
Cytus to the record, please.

[00:26:16] Speaker 01:
It's on pages 8885 and 8886.

[00:26:22] Speaker 01:
And we asked him

[00:26:24] Speaker 01:
well, what consumers actually use that feature.

[00:26:26] Speaker 01:
And he only came up with one.

[00:26:28] Speaker 01:
And he said that they didn't much like that feature because it slowed down throughput to this point, that they used it only as a last resort.

[00:26:53] Speaker 02:
He just said, he said, yeah, you're mischaracterizing this.

[00:26:57] Speaker 02:
He said that, yes, they used it.

[00:26:59] Speaker 02:
And it says, I don't know that they used it every time or on every single product.

[00:27:05] Speaker 01:
Well, Your Honor, I think, remember, we're on summary judgment here, OK?

[00:27:09] Speaker 01:
And the question that was asked was, which customers used it?

[00:27:12] Speaker 02:
But you have to come forward with sufficient facts to raise a material issue of fact.

[00:27:18] Speaker 02:
I mean, this is part of the problem is that you stood up here the last time you were here

[00:27:22] Speaker 02:
And you all argued that this claim construction, that if we found that a plurality of wafers didn't include multiple dies on one wafer, that there'd absolutely be no infringement.

[00:27:35] Speaker 02:
And to the trial judge's surprise, you offered no evidence to that effect.

[00:27:40] Speaker 02:
In fact, all the evidence was to the contrary.

[00:27:42] Speaker 01:
I would disagree with that, Your Honor.

[00:27:43] Speaker 02:
So now you're telling us that, OK, you've got this new theory that you've never given any real evidence of.

[00:27:50] Speaker 02:
except this loose statement that doesn't even say what you said it did, and that we're supposed to send this back yet again?

[00:27:57] Speaker 01:
Well, Your Honor, first of all, what we're talking about here is the non-infringing alternatives.

[00:28:00] Speaker 01:
And as Judge Moore pointed out, that only goes to the question of damages, whether the lost profits were attributable to the infringement under the narrowed construction.

[00:28:10] Speaker 01:
That's an issue that wasn't raised until there was the summary judgment ruling, and we presented evidence that under the narrowed construction, there was a genuine issue as to

[00:28:19] Speaker 01:
non-infringing alternatives.

[00:28:21] Speaker 01:
Now, this evidence here, you have Mr. James saying that, yes, there were consumers who used this alternative.

[00:28:30] Speaker 01:
Then we asked him, well, which ones?

[00:28:31] Speaker 01:
And he said, well, some of them.

[00:28:32] Speaker 01:
And then he said, can you name one?

[00:28:33] Speaker 01:
And he could name only one.

[00:28:35] Speaker 01:
And then if you look up on page 8886.

[00:28:39] Speaker 02:
No, it's not that he could only name one customer.

[00:28:42] Speaker 02:
He said, I just don't recall specifically.

[00:28:45] Speaker 02:
He's not saying others didn't use it.

[00:28:47] Speaker 01:
Your Honor, I think it's a question of what inference a reasonable jury could draw from that.

[00:28:52] Speaker 01:
And I think a reasonable jury could draw an inference from that that there were no other customers.

[00:28:57] Speaker 01:
And furthermore, up on page 8886, he says this was a last resort because of the throughput hit.

[00:29:07] Speaker 03:
So I think this evidence... I looked closely at that Delphi testimony, and I certainly couldn't draw that conclusion.

[00:29:14] Speaker 01:
Your Honor, I would respectfully disagree.

[00:29:18] Speaker 01:
But I think it's also important to recognize that there was testimony that this alternative was available.

[00:29:25] Speaker 01:
There was testimony that it created a throughput hit.

[00:29:27] Speaker 01:
There was testimony that what was really attractive about the invention was the speed.

[00:29:32] Speaker 01:
And a jury could infer from that that if you took out this feature, which was slowing down the operation of the machine, that it would be more attractive, not less attractive, to consumers.

[00:29:42] Speaker 01:
Also, the fact this was available, this was a software update.

[00:29:45] Speaker 01:
This was taken out

[00:29:46] Speaker 01:
by changing the software, that clearly would have been available at the time, or at least a reasonable jury could infer that.

[00:29:52] Speaker 01:
So we think that there is a damages issue here.

[00:29:55] Speaker 01:
Now, with respect to the damages that were awarded previously, Mr. McDonald has avoided citing to any evidence in the record that would support the amount of damages that was awarded.

[00:30:10] Speaker 01:
Yes, the district court did say that there was sufficient evidence, and it did cite to

[00:30:16] Speaker 01:
a lot of different transcript sites and exhibits, but it didn't explain how that shows that there was a 60% market share.

[00:30:25] Speaker 04:
Mr. Bromberg, we're well over your rebuttal time, so we're going to have to end here.

[00:30:28] Speaker 04:
Thank both counsel for their argument.

[00:30:31] Speaker 04:
The case is taken under submission.