[00:00:00] Speaker 04:
The final case this morning is number 15, 1605, Server Technology, Inc.

[00:00:05] Speaker 04:
versus American Power Conversion, Mr. Smith.

[00:00:08] Speaker 00:
Good morning, Your Honor.

[00:00:09] Speaker 00:
May it please the Court.

[00:00:10] Speaker 00:
The District Court's central error in this case was not recognizing that the claimed invention was extraordinarily obvious.

[00:00:17] Speaker 00:
If the claims ensued are properly construed, there's only one real difference between a product that APC was already marketing, the MSVM as a plug strip for server racks,

[00:00:28] Speaker 00:
and the claimed invention.

[00:00:29] Speaker 00:
And that difference was not using a series of colored lights to show you how much current was flowing, but instead to use a digital display to show you the volume of current going through the plug strip.

[00:00:41] Speaker 00:
But that idea had already been demonstrated and existed in the prior art in the Li and Lu patents, which preceded all of what happened here.

[00:00:50] Speaker 00:
And those patents explained that you can put a digital display on a plug strip, it shows you how much current is flowing, and it serves the

[00:00:57] Speaker 00:
purpose solves the problem of current overloads.

[00:01:01] Speaker 00:
And so what you have here is a classic example of combining prior art in a way that the features of the prior art serve the exact function that you would expect them to in the exact way that you expect them to.

[00:01:15] Speaker 00:
It's a classic kind of KSR problem.

[00:01:19] Speaker 00:
And that's exactly, by the way, what the PTAB found in their recent decision looking at this exact issue.

[00:01:27] Speaker 04:
Could we talk a bit about the claim construction issue here because aptly comes close to admitting that the jury was incorrectly charged with respect to the plug strip limitation in the 543 patent and the statement that everything had to be in the plug strip itself.

[00:01:55] Speaker 04:
But they argued that as to the 771 patent, there wasn't any such instruction and that the jury verdict with respect to the 771 can be sustained on the obviousness issue because there was no such requirement imposed.

[00:02:18] Speaker 00:
So what's your answer to that?

[00:02:19] Speaker 00:
Your Honor, as the case was presented to the jury, they were told over and over again that the patents were identical with respect to the one-piece requirement, that they both had one, that there was no difference.

[00:02:31] Speaker 00:
That was the argument that STI made in the trial court consistently from the beginning, before trial, during trial, after trial.

[00:02:38] Speaker 04:
Yeah, but the court didn't instruct the jury that there was such a requirement with respect to the 771.

[00:02:44] Speaker 00:
Well, that's true, Your Honor, but no party in the courtroom ever suggested it didn't have a one-piece requirement.

[00:02:50] Speaker 00:
That was, in fact, what the jury was told over and over again with this demonstrative, referring to page seven of our brief, that the essence of the invention included four key elements.

[00:03:00] Speaker 00:
One was a vertical one-piece.

[00:03:01] Speaker 00:
And there was never a differentiation made by STI because that wasn't their position at the time between the 543 and the 771.

[00:03:10] Speaker 00:
And so there is no reason whatever to think on the actual facts of this case that had ever occurred to the jury that the 771 lacked a one-piece requirement.

[00:03:18] Speaker 00:
That's just the way the case was presented to them.

[00:03:21] Speaker 00:
Indeed, STI was still arguing that in the post-trial briefing.

[00:03:24] Speaker 00:
So for them to come into the court here and say the jury probably figured out by itself that there was a difference between a device and a plug strip and one was a two-piece or could be a two-piece and the other one couldn't.

[00:03:36] Speaker 00:
simply blinks reality in terms of how this case was actually argued.

[00:03:39] Speaker 00:
It was a clever way for them to kind of come up and maybe find a harmless error argument on appeal.

[00:03:43] Speaker 00:
But it's not what the jury understood or could possibly have understood.

[00:03:47] Speaker 00:
And the fact that they didn't propose an instruction with respect to the 771 doesn't mean that the jury had any doubt about what they thought that the patents meant and indeed what the court held it meant during the trial and prevented us from making any argument about it not having a one-piece requirement.

[00:04:06] Speaker 00:
That claim construction is clearly erroneous.

[00:04:10] Speaker 00:
I mean, if you look at the actual language of either patent, there is no basis at all.

[00:04:14] Speaker 02:
Suppose we were to agree with you that the claim construction is erroneous.

[00:04:18] Speaker 02:
What does that do to the finding of, let's say, infringement, or obviousness and then infringement?

[00:04:24] Speaker 00:
Well, with respect to obviousness, it clearly undercuts the jury's findings with respect to the secondary considerations of obviousness, because they're looking at the wrong thing.

[00:04:32] Speaker 00:
They're looking at a different invention.

[00:04:34] Speaker 00:
They have different things that would have to be combined from the prior art if you had a one-piece requirement.

[00:04:39] Speaker 00:
There's a third piece of prior art you'd have to bring in.

[00:04:41] Speaker 00:
So they were analyzing motivation to combine, commercial success.

[00:04:45] Speaker 00:
All of these things would be very substantially undercut, I submit, by them misunderstanding the scope of the invention in a very important way.

[00:04:54] Speaker 00:
A lot of what the evidence showed was that customers liked the one-piece configuration of the actual product that STI was selling.

[00:05:01] Speaker 00:
And that was a feature that was touted by them.

[00:05:05] Speaker 00:
But that's not relevant to these secondary considerations if that's not a feature of the invention.

[00:05:10] Speaker 00:
And since it's not, I think that very strongly undercuts the secondary considerations.

[00:05:15] Speaker 00:
It certainly entitles us to at least a new trial.

[00:05:19] Speaker 00:
But the reality is once you take that requirement out of the patent and out of the invention, you just have slapping the digital display on existing technology.

[00:05:28] Speaker 00:
And putting a digital display in a plug strip had already been done.

[00:05:31] Speaker 00:
in the prior art.

[00:05:33] Speaker 00:
I don't think this is a case where we need to go back and have another trial on the obviousness of that invention.

[00:05:40] Speaker 00:
What they say is, well, we were doing it for a different reason.

[00:05:43] Speaker 00:
We were solving a different problem.

[00:05:44] Speaker 00:
We weren't just solving the current overload problem.

[00:05:47] Speaker 00:
We were solving the problem of inefficient rack utilization, basically saying, you could use this digital display to get as many servers on your rack as possible before you get an overload.

[00:05:57] Speaker 00:
Whether that's really a different problem

[00:05:59] Speaker 00:
different side of the same coin, I'm not sure.

[00:06:02] Speaker 00:
But it doesn't matter as a matter of law under KSR.

[00:06:06] Speaker 00:
First thing KSR says is it doesn't matter whether you don't just focus on the problem that the inventor was looking at.

[00:06:12] Speaker 00:
Any problem that's a known problem that could provide a motivation to combine can get you an obviousness determination.

[00:06:22] Speaker 00:
And so the

[00:06:25] Speaker 00:
I guess I didn't answer it, by the way.

[00:06:27] Speaker 00:
Your second half of your question, Judge Ray.

[00:06:29] Speaker 00:
I don't think that the one piece thing is really relevant to the infringement issue.

[00:06:33] Speaker 00:
The infringement issue comes up for the 7900 product line.

[00:06:37] Speaker 00:
And that goes to the issue of whether or not just communicating current information is sufficient to satisfy the requirement of communicating power information.

[00:06:47] Speaker 00:
And we say it's not because power information has to basically be communicating watts, not amps.

[00:06:53] Speaker 00:
And the 7900 series only

[00:06:55] Speaker 00:
could detect and measure and communicate amps, not watts.

[00:06:59] Speaker 00:
So that is the central infringement issue.

[00:07:02] Speaker 00:
If you get to that, I don't think you need to here with the obviousness being fairly obvious.

[00:07:09] Speaker 00:
Not to make a silly joke.

[00:07:12] Speaker 00:
So they basically have two responses to the obviousness.

[00:07:14] Speaker 00:
One is it's a separate problem we were looking at, which isn't an answer as a matter of law in your KSR.

[00:07:20] Speaker 00:
And even if you just focus on their problem, which is

[00:07:23] Speaker 00:
having the ability to officially utilize the racks by putting as many servers as you can before you get to the limit.

[00:07:30] Speaker 04:
I mean, I think your problem on the j-ball issue is that you've got all these findings about secondary considerations by the jury.

[00:07:38] Speaker 04:
And I guess what you're arguing is that even if there are secondary considerations here, that the prima facie case of obviousness outweighs them.

[00:07:48] Speaker 00:
Absolutely, you're right.

[00:07:49] Speaker 00:
I don't think this is a classic case of that, just as in the Apple case earlier this year or ABT case last year.

[00:07:55] Speaker 00:
I mean you have, you look at where the prior art was, you look at how much difference they made in the prior art, how much innovation was there, was there some technological innovation or some sort of surprising technological outcome here, and there's none of that.

[00:08:10] Speaker 00:
You have these secondary consideration findings, but they're weak for a variety of reasons.

[00:08:16] Speaker 00:
One is they're tainted by the fact that the jury misunderstood what the invention was because of this one piece discussion we had before.

[00:08:23] Speaker 00:
And there's a very thin evidence of nexus to what was the actual invention, which is the digital display.

[00:08:30] Speaker 00:
They just basically said, there's lots of commercial success of this product because of all of its features, that everybody liked all their features.

[00:08:38] Speaker 00:
And that was kind of the evidence that was put in

[00:08:40] Speaker 00:
This is occurring at a time when the internet is exploding tenfold.

[00:08:44] Speaker 00:
And so lots and lots of these server farms are being built.

[00:08:47] Speaker 00:
There's an awful lot of sales of plug strips, some plug strips that meet these requirements, plug strips that don't meet these requirements.

[00:08:53] Speaker 00:
There is a huge growth in the marketplaces.

[00:08:55] Speaker 00:
So for a whole variety of reasons, I think these findings by the jury ought to be the least of the problem here.

[00:09:03] Speaker 00:
The obviousness is so glaring.

[00:09:05] Speaker 00:
Once you understand what they did, which is to take the Li and Liu

[00:09:08] Speaker 00:
patent, which says you avoid overloads by putting a digital display and you slap it on your plug strip.

[00:09:14] Speaker 00:
And they did that to a server plug strip, as opposed to the smaller plug strips, which were at issue in Li and Liu.

[00:09:19] Speaker 00:
But that, by itself, can't be a sufficiently inventive change in the technology to avoid an obviousness problem.

[00:09:27] Speaker 01:
I suppose all these arguments were made at the trial, weren't they?

[00:09:32] Speaker 00:
Certainly, Your Honor.

[00:09:32] Speaker 00:
And in all of the cases, we should... And the jury heard all this?

[00:09:36] Speaker 00:
Absolutely.

[00:09:38] Speaker 00:
They heard lots and lots of evidence about this, Your Honor.

[00:09:41] Speaker 00:
And sometimes juries make mistakes about these kinds of things.

[00:09:44] Speaker 00:
And sometimes, obviousness has to be overturned in this court.

[00:09:48] Speaker 00:
That's what happened in ABT.

[00:09:49] Speaker 00:
That's what happened in the Apple case.

[00:09:51] Speaker 00:
And I don't see an argument that can be made that there was an invention here that warrants patent protection.

[00:09:58] Speaker 00:
They had a product that sold.

[00:10:00] Speaker 00:
But what the technological invention was that had not been done before

[00:10:05] Speaker 00:
is very hard to identify, I would submit, especially when you leave out the one-piece thing.

[00:10:10] Speaker 00:
I mean, it's simply slapping the digital display on the existing technology that we were already selling in the marketplace.

[00:10:18] Speaker 00:
If I might just quickly address then the infringement issue.

[00:10:23] Speaker 00:
The argument there is that even though the patent requires communication of power information and the 7900 only communicated current information, that

[00:10:35] Speaker 00:
that's still close enough.

[00:10:38] Speaker 00:
And what's interesting about this is the district court, when it adopted a construction of the term power information, which is the construction that they like to rely on on appeal here, which is quantifying or describing power, at the time it did that, recognized that this definition, this construction of the term, would preclude arguing that current information

[00:11:01] Speaker 00:
is the same thing as power information.

[00:11:03] Speaker 00:
That's on page 3436 of the joint appendix.

[00:11:08] Speaker 00:
That was at the markman stage.

[00:11:10] Speaker 00:
And so for some reason later on, the district court sort of forgot that it had come to that conclusion, allowed them to argue literal infringement by the 7900, even though the 7900 only communicates amps, not watts.

[00:11:23] Speaker 00:
And the requirement of power information being communicated in claim 15

[00:11:30] Speaker 00:
specifically different from the claim one in each of the patents, which just simply requires them to communicate current information.

[00:11:36] Speaker 00:
So they had a reason for putting power information in there, but they were still arguing that it really didn't make any difference that somehow current and power are the same thing.

[00:11:45] Speaker 00:
And then they make a doctrine of equivalence argument, which doesn't explain why it is that they can avoid that the prosecution history is toppled here.

[00:11:53] Speaker 00:
They put this requirement in during the prosecution.

[00:11:55] Speaker 00:
They don't have a

[00:11:56] Speaker 00:
a theory under Festo to explain why it would be sufficiently tangential to avoid an estoppel.

[00:12:02] Speaker 00:
And so I think ultimately they have a serious problem on their infringement claim as to the $7,900, not as to the $8,900 product.

[00:12:09] Speaker 00:
You've got to draw a distinction between those two.

[00:12:12] Speaker 00:
If I might reserve the balance if I time.

[00:12:15] Speaker 04:
OK.

[00:12:15] Speaker 00:
Thank you.

[00:12:15] Speaker 04:
Thank you.

[00:12:18] Speaker 04:
Mr. Hartley.

[00:12:22] Speaker 03:
Thank you very much.

[00:12:23] Speaker 03:
Excuse me.

[00:12:28] Speaker 01:
We all have allergies this time of year, Mr. Hart.

[00:12:31] Speaker 01:
Why do we?

[00:12:34] Speaker 04:
So, do you think the one-piece claim construction was correct as to the 553 pattern?

[00:12:40] Speaker 03:
Yes, I do, and I'm sorry if we said something in our brief that gave you a different impression.

[00:12:45] Speaker 03:
However, what I want to talk about this morning is that it doesn't really matter.

[00:12:49] Speaker 04:
No, but I wouldn't like you to talk about that.

[00:12:51] Speaker 04:
I'm happy to talk about it, but there... I think it's important.

[00:12:54] Speaker 04:
So my original statement was correct when I said you really don't want to talk about it.

[00:13:01] Speaker 03:
The reason is it doesn't matter because the facts support the jury's findings.

[00:13:06] Speaker 04:
Before we get to does it matter, let's talk about whether it was right.

[00:13:10] Speaker 04:
How can it be that the one-piece construction was correct?

[00:13:15] Speaker 03:
Several reasons.

[00:13:16] Speaker 03:
First of all, I think the term plug strip was effectively a term of art.

[00:13:20] Speaker 03:
They used the term plug strip to refer to Lee and Lew.

[00:13:23] Speaker 03:
It's never used there.

[00:13:24] Speaker 03:
It's not used anywhere.

[00:13:26] Speaker 03:
In this case, we have the preamble to the claim that talks about a plug strip comprising elements A through F. And then it proceeds in the claims to use in element F the term plug strip itself.

[00:13:41] Speaker 03:
So we have

[00:13:42] Speaker 03:
adequate basis both for essential structure and the use of the claim for the preamble to be limiting.

[00:13:49] Speaker 03:
That's the starting point.

[00:13:51] Speaker 03:
Then the question is, what does plug strip mean?

[00:13:54] Speaker 03:
The specification could not be more clear.

[00:13:57] Speaker 03:
Throughout, it refers to it as a one-piece device.

[00:14:01] Speaker 03:
Even, for example, in their argument about a separate chassis that they make, that refers to a separate chassis separate from the one-piece plug strip.

[00:14:11] Speaker 03:
If you look at Figure 1, it shows it as a one-piece device.

[00:14:16] Speaker 04:
Yeah, but the language of the claim is a plug-script current recording system associated with the vertical strip enclosure.

[00:14:24] Speaker 04:
Absolutely, and that... But isn't associated with cut against the idea that it's one piece?

[00:14:30] Speaker 03:
Well, certainly it can be read that way, and I understand the court's question.

[00:14:35] Speaker 03:
The general term associated with has no clear meaning.

[00:14:38] Speaker 03:
It is a broad, broad term, of course.

[00:14:41] Speaker 03:
In order to understand its meaning in the context of this patent and these claims, I think you need to look at the context in which it is used in the patent.

[00:14:53] Speaker 03:
The context is critical.

[00:14:56] Speaker 03:
The reason I say that is that... Well, is there any statement in the specification that has to be one piece?

[00:15:01] Speaker 03:
There is, I think, descriptions of the plug strip.

[00:15:06] Speaker 04:
The answer is not right.

[00:15:07] Speaker 03:
But not a flat statement that says

[00:15:10] Speaker 03:
Plugs are passed to be one piece.

[00:15:12] Speaker 04:
OK.

[00:15:12] Speaker 04:
Well, I don't want to use all your time on this.

[00:15:14] Speaker 04:
Suppose that we were to conclude that you were wrong about the claim construction with respect to the 543.

[00:15:24] Speaker 04:
And let's assume that the court imposed, as I think it did, the same one-piece claim construction to the 771.

[00:15:31] Speaker 04:
So why isn't that at least a grant for a new trial?

[00:15:37] Speaker 03:
Several reasons.

[00:15:38] Speaker 03:
First of all, let me take your second comment first.

[00:15:41] Speaker 04:
The court never in the presence of the jury expressed the view... Well, not in the presence of the jury, but it did during the trial say that that same one-piece construction applies to the 771 at a sidebar conference, right?

[00:15:54] Speaker 03:
That's correct.

[00:15:55] Speaker 03:
But the jury was never instructed, was simply the point I was going to make.

[00:15:59] Speaker 03:
APC never sought an instruction that would have permitted the two-piece analysis.

[00:16:03] Speaker 04:
We argued... You can't have error without an instruction?

[00:16:06] Speaker 03:
You certainly can, but I was just trying to suggest that I don't think the court ever, the court absolutely did not exclude any evidence based on this one or two piece construction.

[00:16:17] Speaker 03:
But let's get to the key point, that it is that it doesn't matter.

[00:16:21] Speaker 03:
And let me try to explain why.

[00:16:23] Speaker 03:
You know from the briefs that we made two very important fact-based arguments, reason to combine and secondary considerations.

[00:16:32] Speaker 03:
with respect to the reason to combine, and I should say that in both instances, neither... Wait a second.

[00:16:38] Speaker 04:
But surely if the jury was told that there's a one-piece requirement, let's say, turning to your closing argument, and that was mistaken, that's error.

[00:16:50] Speaker 04:
Why isn't that error?

[00:16:54] Speaker 03:
I don't think it is error for us to argue

[00:16:57] Speaker 03:
that it was a one-piece requirement, just as it would not have been error for them to argue that it was two-piece, because the court never construed the term.

[00:17:05] Speaker 03:
There was a single passing reference.

[00:17:07] Speaker 03:
Well, I don't see how they could argue that it was two-piece when the court had ruled that it had to be one-piece.

[00:17:11] Speaker 03:
The court had not specifically made that ruling, Judge Dyke.

[00:17:15] Speaker 03:
The court, in a passing sidebar outside the presence of the jury, permit our expert to continue to testify according to our theory of the case, which we maintained through

[00:17:27] Speaker 03:
this appeal.

[00:17:28] Speaker 03:
But he did not ever exclude from their argument or presentation of evidence anything that would have kept them from making the two-piece argument.

[00:17:38] Speaker 04:
But he's already ruled in summary judgment what the claim instruction is.

[00:17:41] Speaker 04:
Then he does it again during the trial at the sidebar.

[00:17:45] Speaker 04:
Why can't they accept that and say, well, we can't argue it's two-piece?

[00:17:49] Speaker 03:
His ruling in summary judgment was based entirely, if you look closely at his order, on his analysis of the 543 patent.

[00:17:56] Speaker 03:
and the term plug strip.

[00:17:58] Speaker 03:
So I think they made a mountain out of a couple of passing references.

[00:18:02] Speaker 03:
And I can assure you that this was not something that was clear at the trial.

[00:18:10] Speaker 04:
The sidebar is pretty clear.

[00:18:12] Speaker 04:
It's explicit.

[00:18:13] Speaker 03:
In the sidebar, what he is saying is that he is permitting our expert to continue to testify, Judge Dyke.

[00:18:19] Speaker 03:
That's right.

[00:18:20] Speaker 01:
Did he change his mind, the judge, on that issue?

[00:18:26] Speaker 01:
It seems to me the judge's position is inconsistent.

[00:18:31] Speaker 01:
On the one hand, he says it's single, but go ahead and argue the other side.

[00:18:39] Speaker 03:
He did not, in candor, he never said go ahead and argue the other side.

[00:18:43] Speaker 03:
He allowed us to put in our evidence that the term device was a one-piece unit.

[00:18:50] Speaker 03:
He did not then go further, and I'm sorry if I misled you, Your Honor.

[00:18:54] Speaker 03:
He did not go further and say, you APC may put in the two-piece evidence.

[00:19:00] Speaker 04:
And they did?

[00:19:02] Speaker 03:
They did not, because they were focused on the one-piece plug strip in the 543 pattern.

[00:19:07] Speaker 03:
That was the entire focus of the trial, Judge Dyck.

[00:19:10] Speaker 03:
That was all anybody was paying any attention to, which is why I want to come back.

[00:19:14] Speaker 04:
The problem is your expert testified

[00:19:18] Speaker 04:
that it was not obvious because of the one piece requirement and that argument was made in the closing argument, right?

[00:19:25] Speaker 03:
That's correct.

[00:19:27] Speaker 03:
And what I would like to do is make the points I started with and that is that... Why don't you do that?

[00:19:36] Speaker 04:
But let's assume hypothetically that we were to disagree with you.

[00:19:40] Speaker 04:
We find that there is no one piece requirement in either patent and that the

[00:19:48] Speaker 04:
argument to the jury was error in that respect.

[00:19:54] Speaker 04:
So why don't we have to, under those circumstances, reverse and remand for a new trial?

[00:19:58] Speaker 03:
Because under this court's precedent, if the findings of the jury are otherwise supported by evidence that is not dependent upon that interpretation, you may affirm.

[00:20:12] Speaker 04:
I don't think that's the right standard.

[00:20:13] Speaker 04:
I think that if there's an error

[00:20:15] Speaker 04:
in the trial which could have led the jury to rely on the one piece requirement that we have to send it back.

[00:20:23] Speaker 04:
What case says that we don't have to send it back?

[00:20:26] Speaker 03:
The case that I am referring to, Your Honor, is the function media case that talks about errors in claim construction that do not necessarily lead to reversal.

[00:20:40] Speaker 03:
and can lead to affirmance if there is otherwise support for the jury's verdict.

[00:20:44] Speaker 03:
That's at 708 F third.

[00:20:47] Speaker 04:
I don't know what that case says, but that is not the correct standard.

[00:20:51] Speaker 04:
You can't have an error in the trial and say, well, we don't have to pay attention to it because there was other evidence that would support the jury's verdict.

[00:20:57] Speaker 04:
You can say it's harmless error if the rest of the evidence compels the result, but not that it permits it.

[00:21:06] Speaker 03:
I think you've stated it better than I did, and I apologize.

[00:21:09] Speaker 03:
I think you're correct.

[00:21:10] Speaker 03:
Let me show you why I believe that the evidence compels the conclusion that there was harmless error.

[00:21:16] Speaker 03:
First of all, APC offers three interrelated reasons to combine.

[00:21:21] Speaker 03:
None of them is supported by the evidence.

[00:21:24] Speaker 03:
The jury's findings on that order, the implicit findings in that regard, are fully supported.

[00:21:31] Speaker 03:
Let me just quickly tick off some of the important evidence so you will see it has nothing to do with one-piece construction or two-piece construction.

[00:21:39] Speaker 03:
First of all, the industry participants, APC itself, a competitor Baytech, thought of but rejected the idea of a combination such as this one because they didn't see a benefit in doing so.

[00:21:56] Speaker 03:
The industry leader called Exodus did not see a benefit.

[00:22:00] Speaker 03:
The evidence is clear.

[00:22:03] Speaker 03:
And even APC's expert, a Dr. Horenstein said,

[00:22:07] Speaker 03:
asked if there is any market demand or need to modify the prior art PDUs to include a digital display, he answered, I guess the answer is no.

[00:22:18] Speaker 03:
And that's in the red brief or in the appendix at A25539.

[00:22:26] Speaker 03:
Another independent data center operator, Mr. Brown, made similar testimony.

[00:22:32] Speaker 03:
Another gentleman, Mr. Mayors did.

[00:22:35] Speaker 03:
The bottom line is the evidence fully supports the point that no one in the industry saw a benefit in this combination.

[00:22:42] Speaker 03:
It has nothing to do with one piece or two piece.

[00:22:46] Speaker 03:
Second, APC relies on the so-called overload problem, and that relates primarily to the Lee and Lew patents.

[00:22:57] Speaker 03:
You have to understand what the overload problem was all about.

[00:23:00] Speaker 03:
They dramatically exaggerate what it meant.

[00:23:04] Speaker 03:
Every single piece of prior art that addressed overload did so with an alarm or a buzzer, because that's what was necessary to call the technician's attention to a single unit out of literally tens of thousands that may be defective or have problems.

[00:23:21] Speaker 03:
So the overload problem was an alarm-related issue.

[00:23:24] Speaker 03:
And if you read Lee and Lou carefully, you'll see exactly that.

[00:23:29] Speaker 03:
The display wasn't there to address overload.

[00:23:32] Speaker 03:
They had a buzzer in both of them, and we put that in our brief.

[00:23:35] Speaker 03:
It's very clear from the Li and Liu patents.

[00:23:38] Speaker 03:
Finally, the Liu patent alone does not provide a reason to combine.

[00:23:45] Speaker 03:
And perhaps if you think a little bit about a data center, you'll understand why.

[00:23:52] Speaker 03:
A data center is not simply taking your home plug strip and putting it vertically on a rack.

[00:23:59] Speaker 03:
The data center PDUs, as you know from the art in this patent, have current reporting systems, they have switch systems, and all sorts of elaborate computer-controlled internal components.

[00:24:13] Speaker 03:
Just because somebody thought it was a good idea to put a digital display on a little power strip says nothing about whether that would make sense in the data center.

[00:24:23] Speaker 03:
The data center PDUs, plug strips, already had current reporting.

[00:24:28] Speaker 03:
They did it remotely.

[00:24:30] Speaker 03:
To add another display, as Lee and Lew would suggest, to monitor current is duplicative, it's costly, it's unnecessary.

[00:24:39] Speaker 03:
It's caught against, if you will.

[00:24:42] Speaker 03:
It was counterintuitive to use that same display.

[00:24:46] Speaker 04:
I don't want to run out of time before you address the infringement question with respect to the 7900 series and the fact that they

[00:24:57] Speaker 04:
that's displayed as current rather than power.

[00:25:04] Speaker 03:
Let me do that first and if I have time I'll come back to these others.

[00:25:08] Speaker 03:
The infringement issue is, I think, there are two basic points to be made.

[00:25:15] Speaker 03:
First of all, I think APC is incorrect when they say the judge previously had ruled on this question.

[00:25:21] Speaker 03:
Put that aside.

[00:25:21] Speaker 04:
I mean, current and power are different.

[00:25:23] Speaker 04:
Absolutely.

[00:25:25] Speaker 04:
7900 series only displays current, as I understand what your argument is that people knew the voltage so they could have calculated the power.

[00:25:33] Speaker 04:
And that seems to me a bit far-fetched in the sense that the idea here is to have a display which can be read without making calculations.

[00:25:41] Speaker 03:
That actually is the equivalence argument.

[00:25:44] Speaker 03:
Let me talk about the literal infringement argument, if I may.

[00:25:48] Speaker 03:
The key to the literal infringement argument is an understanding of the definition

[00:25:53] Speaker 03:
the construction of the term power information, and basically it's information sufficient to quantify or describe.

[00:26:00] Speaker 03:
What the 7900 does is that it conveys information sufficient to describe power because it communicates current, that current is flowing to the PDU,

[00:26:15] Speaker 03:
and that there is a voltage present at individual outcomes.

[00:26:18] Speaker 04:
Yeah, but that's the exact argument I was asking about a moment ago, which you characterized as an equivalence argument.

[00:26:23] Speaker 04:
This is the literal infringement argument, and the problem is what you're saying is that they had enough information to make a calculation.

[00:26:31] Speaker 04:
It seems to me hard to read the patent as saying giving people enough information to make a calculation satisfies the claim limitation.

[00:26:40] Speaker 04:
It would seem to me

[00:26:41] Speaker 04:
that it would have to be something that would display the information so that you could read it immediately.

[00:26:48] Speaker 03:
Well, with respect, Judge Dyke, I think I have not been clear perhaps in our briefing, and I apologize.

[00:26:55] Speaker 03:
The key to the literal infringement argument is the communication of whether or not an outlet is on or off.

[00:27:01] Speaker 03:
That describes power, whether there is power to the outlet, whether it is on or off, not the amount.

[00:27:07] Speaker 03:
We're not quantifying it.

[00:27:08] Speaker 03:
It describes power or voltage.

[00:27:10] Speaker 03:
It describes power because the only way you know you have power, it communicates whether the outlet is on or off.

[00:27:17] Speaker 03:
In our brief, we show the graphic used by the expert.

[00:27:19] Speaker 03:
It says outlet one, two, three, four, on, off, on, on, off, off, whatever.

[00:27:25] Speaker 03:
The way the unit knows that is that it knows current is flowing to the PDU.

[00:27:30] Speaker 03:
You're saying that all it requires is whether it's on or off?

[00:27:33] Speaker 03:
To describe power, yes.

[00:27:35] Speaker 03:
The description of whether an outlet is on or off.

[00:27:38] Speaker 03:
Did you make that argument in your brief?

[00:27:39] Speaker 03:
I don't recall it.

[00:27:40] Speaker 03:
Yes, it's there.

[00:27:40] Speaker 03:
It's under literal infringement.

[00:27:42] Speaker 03:
Where?

[00:27:43] Speaker 03:
Excuse me, where?

[00:27:44] Speaker 03:
Here.

[00:27:52] Speaker 03:
It is beginning at page 67.

[00:28:01] Speaker 03:
Well, where exactly?

[00:28:04] Speaker 03:
It is exactly at page 67 where it begins, and then on page 69 is the graphic I was talking about that shows the... Yeah, but where does it say that all it requires is to know whether it's on or off?

[00:28:17] Speaker 04:
Oh, I'm sorry.

[00:28:18] Speaker 03:
I don't recall it.

[00:28:26] Speaker 03:
The point we are making is that, and I guess I would say it is at best seen on pages 69 and 70,

[00:28:35] Speaker 03:
is that the description of power includes whether an outlet is on or off.

[00:28:43] Speaker 03:
It describes power to know that an outlet is hot.

[00:28:46] Speaker 02:
Well, that's because there's voltage.

[00:28:49] Speaker 02:
I mean, whether it's on or not doesn't tell you the power, the capacity.

[00:28:56] Speaker 02:
Isn't power a function of current times

[00:29:00] Speaker 02:
Yes.

[00:29:03] Speaker 03:
What is communicated in the 7900 products is the presence of voltage at a unit which it does determine that there is voltage present and that current is flowing.

[00:29:15] Speaker 03:
Those two pieces of information taken together can be used to describe power, not quantify, I acknowledge that, but they can be used to describe.

[00:29:24] Speaker 03:
And this is very important and relevant information because if there is a fault with a unit,

[00:29:30] Speaker 03:
and the outlet is shown to be on, then it is likely the server is the problem.

[00:29:36] Speaker 03:
If the outlet is shown to be off, then it's probably a problem perhaps with the PDU or they switch it back on.

[00:29:42] Speaker 03:
So the bottom line is we believe that the description of power includes that information.

[00:29:48] Speaker 04:
Okay, Mr. Harley, we're out of time.

[00:29:50] Speaker 04:
Thank you very much.

[00:29:51] Speaker 04:
Thank you, Your Honor.

[00:29:52] Speaker 04:
You've got a little bit of time left here.

[00:29:57] Speaker 00:
Your Honor, just to

[00:29:59] Speaker 00:
Couple of quick things first on the one piece issue.

[00:30:01] Speaker 00:
I think it's important to recognize if you think that maybe the jury had any differentiation between these two patents, not only was it argued that they were the same by STI, and effectively by us too because we had no choice given the court's rulings, but the jury verdict form on the obviousness secondary considerations was a single form applicable to both patents.

[00:30:25] Speaker 00:
So they weren't asked to assess those

[00:30:27] Speaker 00:
separately with respect to the two of them because nobody ever suggested to the jury that there was any difference between the two with respect to the one-piece issue.

[00:30:36] Speaker 00:
With respect to the question of whether or not the specification narrows the meaning of associated with in the definition in the discussion of the current reporting system that you were mentioning, Judge Dyke, in fact what the specification does is say that a one-piece configuration is a preferred embodiment

[00:30:54] Speaker 00:
is preferably the right way, but it also explains that other embodiments do not have a one-piece configuration, so there's absolutely nothing I submit in the specification that would lead you to take the word associated with, which is quite different from the words of the other five elements where it says disposed on, disposed with, disposed in, and then this element you get associated with, because there were in fact power strips that had the current reporting system connected by a cable.

[00:31:19] Speaker 00:
The MSVM was one, and so

[00:31:22] Speaker 00:
They clearly wrote it broadly enough to cover that and they're now trying to rewrite that part of their patent.

[00:31:31] Speaker 00:
The motive to combine the Li and Lu patents teach that the way to solve the current overloads is to have this digital measurement device and then set it to shut off or set an alarm or do something at a certain number so that it doesn't get to the real overload and that's exactly

[00:31:47] Speaker 00:
the reason to combine, and why you would have a digital measurement is to be able to have this more granular measure and then be able to set the thing to operate at a certain level when it reaches that point.

[00:31:59] Speaker 00:
That's the Li and Lu reason to combine, which is already in the prior art, taught in the patents very expressly.

[00:32:05] Speaker 00:
I commend you to read Li and Lu, they're very short patents, and they tell you why it is you would put a digital display on a plug strip.

[00:32:12] Speaker 00:
The other reason to combine

[00:32:14] Speaker 00:
comes from the problem they say they were solving, which is they say the problem was these server racks were only being filled up to one third of their capacity because the engineers were overly cautious.

[00:32:26] Speaker 00:
They didn't have good enough information about how close they were to an overload on any given rack, and so they would only put three servers on there instead of maybe five if they had better information.

[00:32:37] Speaker 01:
They identify that as one of the problems.

[00:32:39] Speaker 00:
Right, and that problem would

[00:32:41] Speaker 00:
properly describe the problem of inefficient rack utilization because the only solution that you can imagine to that problem is to give the people better information about how close to an overload they were.

[00:32:51] Speaker 00:
How do you do that with a digital display of how much current is flowing?

[00:32:54] Speaker 00:
And so I think even as to the problem they say they were solving, it's equally obvious, Your Honor, and that there's a reason to combine and you would get to the same solution.

[00:33:02] Speaker 01:
Or equally inventive, depending upon your viewpoint.

[00:33:05] Speaker 00:
Well, I think at the end of the day, you guys have to judge whether that's inventive or whether that's simply common sense that anybody would arrive at if they focused on that problem.

[00:33:13] Speaker 04:
OK.

[00:33:13] Speaker 04:
Thank you, Mr. Smith.

[00:33:14] Speaker 04:
Thank you, Mr. Hartley.

[00:33:16] Speaker 04:
Case is submitted.

[00:33:18] Speaker 04:
That concludes our session for today.