[00:00:00] Speaker 03:
Case number 151758, an appeal from the Western District of Missouri.

[00:00:45] Speaker 03:
Okay, Mr. Smith, you want five minutes for rebuttal?

[00:00:48] Speaker 01:
I do, Your Honor.

[00:00:50] Speaker 03:
Okay.

[00:00:52] Speaker 03:
Mr. Marcus, are you ready?

[00:00:53] Speaker 01:
Yes, Your Honor.

[00:00:55] Speaker 01:
All right.

[00:00:55] Speaker 03:
You can begin.

[00:00:56] Speaker 00:
May it please the Court, Your Honor.

[00:00:58] Speaker 00:
This is an appeal from a trial verdict.

[00:01:04] Speaker 00:
There are two products here on which the plaintiff had asserted that

[00:01:11] Speaker 00:
infringe the 431 patent, one I'll refer to as the multi-man, which infringes allegedly on claim five.

[00:01:18] Speaker 00:
The other is the twin man, which infringes on claim one.

[00:01:24] Speaker 00:
Our defense as to the infringement on claim five, the multi-man, is specifically related to the claim limitation contained in claim five at line 31.

[00:01:39] Speaker 00:
wherein it specifically says, wherein the force causes the arm to shift.

[00:01:47] Speaker 00:
And in the Markman hearing, that to shift had been defined as to pivot to the lower position.

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So what that limitation is saying is that the arm within this mechanism needs to shift.

[00:02:06] Speaker 03:
I mean, if we accept the proposition that the trial court had the discretion to conclude that Colonel's testimony was that he was at least qualified to testify, why isn't the testimony that the because the entire assembly mechanism pivots that why isn't that testimony sufficient for a jury

[00:02:35] Speaker 03:
that defined infringement.

[00:02:36] Speaker 00:
Well, I think there are two issues there.

[00:02:38] Speaker 00:
One is the gatekeeping function of the Daubert.

[00:02:44] Speaker 03:
But the only attack you made on, as it relates to Daubert, was qualifications, right?

[00:02:50] Speaker 00:
No, I think we made also that his opinions that were given were simply conclusory.

[00:02:56] Speaker 00:
If you look at a

[00:03:01] Speaker 03:
But you're just relying on the opinions that were in his report, and yet we now are looking at the denial of Jamal, we've got a trial, we've got testimony that was provided at trial, and we've got the question of whether or not there was substantial evidence to support a jury verdict.

[00:03:18] Speaker 00:
Right, and what I'm saying is,

[00:03:20] Speaker 00:
If the gatekeeping function isn't allowed, and in this case, the only opinion without reasoning was wherein the force causes the arm to shift to a lower position.

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That's Mr. Colonel's position.

[00:03:32] Speaker 00:
So when the court doesn't function as a gatekeeper, allows that in.

[00:03:36] Speaker 00:
And then at trial, when the testimony is what part of the arm shifts, and instead of focusing on or what part of the arm pivots, excuse me, as defined.

[00:03:50] Speaker 00:
when the testimony is that, well, the arm doesn't pivot.

[00:03:54] Speaker 03:
Well, he didn't say the arm doesn't pivot.

[00:03:56] Speaker 03:
He actually refused to say that.

[00:03:58] Speaker 03:
In his testimony, he said, because you said, so the arm doesn't pivot.

[00:04:01] Speaker 03:
And he said, no, that's not what I'm saying.

[00:04:03] Speaker 03:
I'm saying it does pivot because the entire mechanism pivots.

[00:04:08] Speaker 00:
Right.

[00:04:10] Speaker 00:
But the limitation is very specific.

[00:04:12] Speaker 00:
The limitation says that the arm must pivot.

[00:04:15] Speaker 00:
There are other portions within the claim which say the pivot can be in any portion of the assembly.

[00:04:21] Speaker 00:
But that specific reference that we're directing it to says that the arm must pivot.

[00:04:27] Speaker 03:
Right.

[00:04:27] Speaker 03:
So what point, I'm asking you, at what point are we interfering with the jury's function?

[00:04:32] Speaker 03:
I mean, maybe we wouldn't have read the testimony the same way the jury was, or maybe we wouldn't have believed it.

[00:04:40] Speaker 03:
But isn't this a question of whether the jury could have reasonably relied on this testimony?

[00:04:45] Speaker 00:
No, see, we think that this is a sufficiency of evidence that should have been knocked out by the judge on the Rule 50 motion.

[00:04:57] Speaker 00:
If there is zero evidence that this arm

[00:05:01] Speaker 00:
this arm pivots in any fashion, then it doesn't meet the standard.

[00:05:06] Speaker 03:
Does the claim construction say that the arm must pivot independently of the rest of the mechanism?

[00:05:13] Speaker 00:
I just don't see that in the claim.

[00:05:15] Speaker 00:
It says specifically wherein the force causes the arm to pivot to the lower position.

[00:05:22] Speaker 00:
So it's just the arm pivoting.

[00:05:24] Speaker 00:
In this case,

[00:05:26] Speaker 00:
the arm shifts in a linear.

[00:05:29] Speaker 03:
But again, you're reading the claim.

[00:05:30] Speaker 03:
You never asked for that precise claim construction from the court, right?

[00:05:35] Speaker 00:
No, we asked.

[00:05:36] Speaker 03:
The court said the word shift means pivot.

[00:05:38] Speaker 03:
Correct.

[00:05:38] Speaker 03:
But it never said that the pivot has to be independent of the rest of the mechanism.

[00:05:45] Speaker 00:
Well, but this portion of the claim doesn't talk about any other portion of the mechanism.

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It is limited solely to the arm.

[00:05:54] Speaker 00:
There are other provisions which talk about the assembly.

[00:05:59] Speaker 00:
But this provision that we are talking about in claim five at line 31 talks only about the arm pivoting.

[00:06:06] Speaker 03:
Did you object at the time that that testimony was given on grounds that it was inconsistent with the claim construction?

[00:06:18] Speaker 00:
The object to the fact that he's- To his testimony.

[00:06:22] Speaker 00:
I don't believe so.

[00:06:25] Speaker 00:
But either, you know, if you call an apple an orange, it doesn't mean the apple is an orange.

[00:06:33] Speaker 00:
In this case, either this shifts, excuse me, either it pivots or it doesn't.

[00:06:40] Speaker 00:
In this case, the arm has to pivot.

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And this arm simply does not pivot.

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And the, you know, I think we can take a certain guidance from the fact that the USPTO granted on exactly the same

[00:06:55] Speaker 03:
I guess I'm still trying to get to the point is that what you're talking about is fundamentally a claim construction question.

[00:07:03] Speaker 03:
And if you leave aspects of the claim construction to the jury, can you complain about that after the fact?

[00:07:09] Speaker 00:
Well, but we don't get the choice of whether we leave it to the jury or not.

[00:07:13] Speaker 00:
We can say, as defendants, Judge, there is no sufficient evidence to say that this arm pivots.

[00:07:19] Speaker 03:
No, but you could object and say, Judge, that's inconsistent with your claim construction.

[00:07:23] Speaker 03:
Or they are now seeking an alternative construction to the claim that we've never visited before.

[00:07:29] Speaker 00:
Whether we object or not, the judge still gets to deal with that issue on a judgment as a matter of law.

[00:07:36] Speaker 00:
And in a clean reading of this, they have to determine whether or not

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that arm pivots are not.

[00:07:43] Speaker 00:
And if the only testimony is that the pivoting is related to a pulley adjacent to the arm, then that's not sufficient evidence on which a case should even go to the jury.

[00:07:57] Speaker 03:
Assuming we construe the claim to say that the arm has to independently pivot, which you never asked for that construction.

[00:08:07] Speaker 00:
Well, what I'm saying is if this language is determined in any other way than it is actually there, no one is asked that this term be construed as saying that the arm includes any portion of the assembly.

[00:08:23] Speaker 00:
We are saying we want just the plain reading of this.

[00:08:29] Speaker 00:
So if we're looking for simply the plain reading, we wouldn't be out there saying, and oh, by the way, make sure you don't include things that aren't in this.

[00:08:36] Speaker 00:
We want just the plain reading of this.

[00:08:39] Speaker 02:
Your adversary in its brief in a footnote says that claim construction is wrong, right?

[00:08:49] Speaker 02:
Says that pivot in the context, excuse me, shift in the context of claim five should not mean pivot.

[00:08:57] Speaker 00:
Sure.

[00:08:58] Speaker 00:
He references that if he had the opportunity, he would contest the Markman hearing ruling.

[00:09:06] Speaker 00:
wherein the term shift to was defined as to pivot to.

[00:09:15] Speaker 00:
We think that the Markman hearing was exactly correct.

[00:09:19] Speaker 00:
It was consistent with the examiner's definition when it granted Garlock its own patent on this product.

[00:09:26] Speaker 04:
Yes, that issue, the claim construction issue was fully argued below.

[00:09:33] Speaker 04:
Is that right?

[00:09:35] Speaker 00:
At the Markman hearing?

[00:09:36] Speaker 04:
At the Markman hearing.

[00:09:37] Speaker 00:
Yes.

[00:09:40] Speaker 00:
Sure.

[00:09:41] Speaker 00:
And had plaintiffs wanted to say, we want that provision,

[00:09:47] Speaker 00:
to be expanded to include any portion of the assembly.

[00:09:49] Speaker 00:
They certainly could have.

[00:09:51] Speaker 03:
But they also made a pretty strong argument that when they use pivot in connection with their preferred embodiments, that the fact that they chose an alternative word in the claims they chose shift is meaningful.

[00:10:06] Speaker 03:
I think there's a pretty good argument that this claim construction that we're arguing about, that even if it's limited to the arm, that it wasn't right.

[00:10:16] Speaker 00:
Of course, none of these issues are even before the court, and it's certainly not part of the record.

[00:10:25] Speaker 03:
But we think that- Well, they do ask us to say if you don't affirm the infringement finding, then you need to revisit the claim construction.

[00:10:33] Speaker 00:
Well, yeah, it's certainly not a cross-appeal in any way, shape, or form.

[00:10:37] Speaker 04:
Well, it can't be a cross-appeal, because we said- But it could have been an alternative ground for affirmance.

[00:10:42] Speaker 04:
which would have been perfectly proper.

[00:10:44] Speaker 00:
Sure.

[00:10:45] Speaker 00:
But that issue is not for the court.

[00:10:49] Speaker 00:
And it certainly hasn't been briefed by anyone, nor there is no basis for that at this point.

[00:10:57] Speaker 03:
Well, I mean, they do raise it in their brief.

[00:10:58] Speaker 03:
You didn't respond to it, but they do raise it.

[00:11:02] Speaker 00:
As a footnote, yeah.

[00:11:08] Speaker 03:
Can we just turn briefly, before you use up your time, to the tethered

[00:11:12] Speaker 03:
Sure.

[00:11:14] Speaker 03:
This thing doesn't work without a tether, right?

[00:11:16] Speaker 03:
The guy dies, right?

[00:11:18] Speaker 00:
Right.

[00:11:19] Speaker 00:
And if the plaintiffs wanted to assert an inducement, they could have.

[00:11:23] Speaker 00:
But that's a claim they never asserted in this case.

[00:11:27] Speaker 03:
Why didn't you present more evidence about exactly what was sold?

[00:11:31] Speaker 03:
I mean, the only testimony that wasn't sold with a tether is one testimony from one person, but no documents, no information that talks about what

[00:11:42] Speaker 00:
component parts were?

[00:11:43] Speaker 00:
Because the defendant does not have the burden of proof.

[00:11:47] Speaker 00:
If the plaintiff puts on their sole... Well, I get that.

[00:11:50] Speaker 03:
But you're accused of infringement with the product that you purposely designed around the other one.

[00:11:56] Speaker 03:
And so you would think that if you were trying to design around the tether component, you would show the jury that there was no tether.

[00:12:08] Speaker 00:
And the only testimony was

[00:12:11] Speaker 00:
The only capital testimony on the existence or non-existence was Mr. Staples who said a tether had never, ever been sold by Garlock.

[00:12:19] Speaker 02:
But what about now, just in response, you've got a different burning proof here.

[00:12:25] Speaker 02:
It's a substantial evidence because the jury found that, we assume the jury found that it is sold with the tether, right?

[00:12:32] Speaker 02:
Yeah.

[00:12:33] Speaker 02:
The substantial evidence that is argued to support that includes an advertisement that shows your device with a tether.

[00:12:42] Speaker 02:
Now, whether or not that's an on-sale event, let's not address that, but is it evidence to show at least that what was sold

[00:12:50] Speaker 02:
had a tether, because what was advertised had a tether.

[00:12:54] Speaker 02:
And it's not substantial evidence.

[00:12:56] Speaker 00:
I don't think it is.

[00:12:57] Speaker 00:
I don't think it is any more than anything around it would have been sold with it.

[00:13:03] Speaker 00:
Had the plaintiffs put into evidence

[00:13:06] Speaker 00:
an invoice showing that tethers had been sold with it.

[00:13:11] Speaker 00:
Had they put it in an order?

[00:13:12] Speaker 02:
Well, you could have put in an invoice that showed that tethers weren't sold, or photographs of the product without a tether when it's boxed.

[00:13:20] Speaker 02:
Why wasn't that kind of evidence?

[00:13:22] Speaker 00:
Because from the defendant's perspective, if evidence doesn't exist, the expectation is that the judge will say, there's not enough evidence to go to the jury.

[00:13:31] Speaker 00:
There is no need to sit and model the evidence

[00:13:35] Speaker 03:
But couldn't the jury disbelieve your one-line piece of testimony from your one person because you're out there advertising it with a price that shows the tether with it?

[00:13:46] Speaker 00:
It could, but there is nothing to indicate that he was lying anymore.

[00:13:52] Speaker 04:
Well, there is testimony there that you can't use this without a tether.

[00:13:59] Speaker 00:
And if they would have asserted inducement, that may have been the case.

[00:14:05] Speaker 00:
But they didn't.

[00:14:06] Speaker 00:
And they have now asserted those claims against all the distributors in a companion case down in Kansas City.

[00:14:13] Speaker 00:
So we're talking only about garlic equipment here.

[00:14:17] Speaker 00:
And in this case, since there is no inducement and the tether isn't sold with it, there is no basis for that finding.

[00:14:25] Speaker 00:
And I see I'm down to a minute, so I should stop.

[00:14:37] Speaker 04:
Just to pick up on where we left off, on the tether issue, that's the twin man.

[00:14:50] Speaker 04:
Why wasn't an inducement or contributory infringement cause asserted?

[00:14:56] Speaker 01:
Well, our reading of the case law, Your Honor, was that it was sufficient in order to establish our claim to show that there was, in fact, an offer to sell, that that was enough to show direct

[00:15:07] Speaker 03:
infringement and in fact we presented as you as your honor mentioned that was exhibit I think I think it's a 999 it was the sale sheet that showed that was an offer to sell it was an advertisement a general advertisement wasn't a sales sheet and that and that's part of my problem is a matter of law advertisements alone don't constitute a sufficient offer we've been very specific the offer has to be such that

[00:15:31] Speaker 03:
that under general contract principles, someone could accept it, and it's got all the terms, and that you would have a closed sale.

[00:15:38] Speaker 03:
So it's one thing to say that maybe it supports the conclusion that it was sold with a tether.

[00:15:45] Speaker 03:
but quite another to call it an offer for sales.

[00:15:48] Speaker 01:
Your Honor, our view of that would be that you've got the product, you've got the price term, that it was sufficiently clear what the price term to constitute an offer.

[00:15:57] Speaker 01:
And obviously, Your Honor disagrees with that.

[00:15:59] Speaker 01:
But that was our position, coupled with the fact that their executive said that the tether was, in fact, standard equipment.

[00:16:05] Speaker 01:
on it and it couldn't be used without the tether.

[00:16:08] Speaker 03:
When he said standard equipment, you're saying he said that it was standard equipment in terms of being sold by them?

[00:16:14] Speaker 03:
Or did he say it's standard in the sense, of course you have to have the tether, because the point is to make sure he doesn't fall off the roof.

[00:16:22] Speaker 01:
Yes, Your Honor, standard equipment for the unit.

[00:16:26] Speaker 01:
He did not admit that it was sold by that particular corporate entity, but we presented evidence, I believe in the record,

[00:16:34] Speaker 01:
the fact that you could access.

[00:16:35] Speaker 01:
One of the ways they sell this product is through the internet.

[00:16:38] Speaker 01:
And if you access their website, a consumer accessing their website could navigate with just a few clicks to where you'd buy the whole package, the tether, the unit, et cetera.

[00:16:49] Speaker 01:
Did you present all of that as evidence?

[00:16:53] Speaker 01:
We did present the websites.

[00:16:54] Speaker 01:
I mean, that we showed.

[00:16:56] Speaker 01:
We got Mr. Staples, I believe was his name, to talk about the fact that in just four clicks, I believe this is in our brief.

[00:17:02] Speaker 01:
than just four clicks, you could navigate and purchase the unit with the tether.

[00:17:06] Speaker 04:
During the discovery, did you discover a single invoice of any sale by Garlock of the unit with a tether?

[00:17:15] Speaker 01:
I don't recall, Your Honor.

[00:17:19] Speaker 02:
I understood, and that was four clicks.

[00:17:20] Speaker 02:
It was four clicks, and you'd get to a sister company website.

[00:17:24] Speaker 02:
And so it wasn't sold by the same entity.

[00:17:26] Speaker 02:
Do I understand that correctly?

[00:17:27] Speaker 01:
Yeah, the websites are all interlinked and so you would be on the Garlok site and there were other, like if, I can't remember what the button is, but it would be a situation where you push a button and you go to this other page.

[00:17:40] Speaker 01:
Now the other page,

[00:17:42] Speaker 01:
as my recollection is, would be, depending on where you were, where the user was located geographically, would take you to the distributor for that area where you could purchase that equipment.

[00:17:52] Speaker 02:
I believe there was testimony that was... So that isn't the tether sold by an entity other than the party that you sued?

[00:17:57] Speaker 01:
Yeah.

[00:17:58] Speaker 01:
And Your Honor, we don't frankly believe that it's sufficient for purposes of establishing that claim.

[00:18:04] Speaker 01:
If the entity that we sued is offering the unit for sale and causing the sale of that,

[00:18:08] Speaker 01:
that that establishes the claim because you're generating interest in the infringing product and then providing a mechanism whereby a user can purchase the infringing product, that that's enough to establish that claim.

[00:18:19] Speaker 01:
There certainly, we believe, was sufficient evidence to allow a jury to find that based upon the sale sheet, the testimony at trial about it being standard equipment, the interlinked websites.

[00:18:28] Speaker 01:
We believe there was enough to submit the issue to a jury and for a jury to find that, in fact, there was an offer to sell the product in violation of the statute.

[00:18:35] Speaker 02:
that impact the amount of damages if it's an offer for sale I mean what if there's some evidence of some offers for sale but what's actually sold doesn't include a tether I mean doesn't there have to be some sort of delineation there to determine damages which one of them's had

[00:18:49] Speaker 02:
which one of the products had sales, I mean tethers, and which did not?

[00:18:53] Speaker 01:
Sure.

[00:18:54] Speaker 01:
I mean, Your Honor, we presented evidence that these products were sold with a tether.

[00:18:57] Speaker 01:
Certainly, the defendant could have presented evidence that some were, some weren't, or none of them were.

[00:19:02] Speaker 01:
But it's not their burden.

[00:19:03] Speaker 03:
I mean, they're right on that, right?

[00:19:04] Speaker 03:
Isn't it your burden to establish your damages?

[00:19:06] Speaker 01:
And we believe we did.

[00:19:07] Speaker 01:
I mean, our evidence was they sell this unit, all the units, with a tether.

[00:19:11] Speaker 04:
And that was our argument that you did submit evidence, sales figures, that the jury then referred to.

[00:19:19] Speaker 04:
What did those sales figures show?

[00:19:22] Speaker 04:
Sales of units with the tether or without?

[00:19:25] Speaker 01:
Your Honor, our argument and evidence was, to answer your question directly, that was all units.

[00:19:31] Speaker 01:
So we didn't delineate.

[00:19:33] Speaker 04:
When you say units, what do you mean units?

[00:19:36] Speaker 01:
Excuse me.

[00:19:37] Speaker 01:
Without the tether.

[00:19:39] Speaker 01:
twin man units, which we contend all twin man units had to be sold with the tether because without the tether, it couldn't use the unit.

[00:19:45] Speaker 01:
So we didn't delineate between units where, excuse me, twin man units where it was just the unit, maybe the user didn't purchase the tether.

[00:19:53] Speaker 01:
We presented evidence of all twin man units coupled with evidence that you couldn't use it without the tether, that they advertised it with the tether, that you would get on the website to buy the tether.

[00:20:04] Speaker 01:
We believe it.

[00:20:05] Speaker 04:
When you say you submitted evidence of the units,

[00:20:09] Speaker 04:
What was that?

[00:20:11] Speaker 04:
Were there invoices?

[00:20:14] Speaker 01:
It was sales figures in arms.

[00:20:18] Speaker 01:
So we had the numbers and I believe it was basically the dollar, it was through discovery that we obtained information about the dollars.

[00:20:27] Speaker 04:
And you have a witness that testified about those numbers?

[00:20:30] Speaker 01:
That was in, I believe it was through discovery and so we didn't call

[00:20:36] Speaker 01:
And gosh, it's your testimony.

[00:20:37] Speaker 03:
So you never got the invoices themselves?

[00:20:40] Speaker 01:
We never got the individual invoices, is my recollection.

[00:20:43] Speaker 01:
We got the sales figures that show the units sold, the cost of the units sold, and what that final number was.

[00:20:49] Speaker 01:
And then we presented that through our expert, and then through our accounting expert.

[00:20:52] Speaker 01:
I believe he testified about those numbers and used that in his analysis.

[00:20:56] Speaker 01:
Right.

[00:20:56] Speaker 03:
So we'll get back to the question of damages in a minute.

[00:21:00] Speaker 03:
But let's turn to the other issue and this claim construction question.

[00:21:04] Speaker 03:
I have to say, I think you have a pretty good argument that the claim construction was wrong.

[00:21:10] Speaker 03:
But all you do is drop a footnote and say, we don't have standing to raise it as a cross appeal.

[00:21:17] Speaker 03:
And the very case you cite says, because you would raise it as an alternative ground for affirmance.

[00:21:27] Speaker 03:
But you don't explain why the claim construction was wrong.

[00:21:30] Speaker 03:
You don't explain what about it.

[00:21:32] Speaker 03:
So you don't actually follow the very

[00:21:35] Speaker 03:
instructions in the case.

[00:21:36] Speaker 03:
And we've got lots of case law that says raising something in a footnote is meaningless.

[00:21:40] Speaker 03:
So why isn't that waived?

[00:21:43] Speaker 01:
Candidly, Your Honor, we believe that raising it the way we did was the appropriate way to do it.

[00:21:47] Speaker 01:
Obviously, that was inaccurate.

[00:21:48] Speaker 01:
And so it was inaccurate.

[00:21:50] Speaker 01:
We believe that the evidence before the court, given the substantial evidence standard of view, is sufficient to affirm based on the claim construction that was utilized.

[00:21:59] Speaker 03:
So assuming you're stuck with this claim construction right or wrong, how is

[00:22:04] Speaker 03:
Mr. Colonel's, it's Colonel, right?

[00:22:07] Speaker 03:
Uh, Colonel.

[00:22:08] Speaker 03:
Colonel.

[00:22:08] Speaker 03:
How is his testimony not essentially engaging in an alternative form of claim construction?

[00:22:17] Speaker 01:
Well, what, what, uh, claim five requires the arrestor assembly to be pivotable.

[00:22:22] Speaker 01:
That's what the exact claim language says.

[00:22:24] Speaker 03:
Well, that's what you're arguing, but it says there's a comma before the where in clause.

[00:22:28] Speaker 03:
So it says where in the arm pivots.

[00:22:32] Speaker 03:
But you didn't ask the court to say that the claim actually requires the arrestor assembly to pivot.

[00:22:40] Speaker 01:
Again, the claim language itself, it's column 8, line 15, 16.

[00:22:45] Speaker 01:
It says specifically the arrestor assembly is pivotable.

[00:22:51] Speaker 02:
What about the language below that?

[00:22:53] Speaker 02:
that was highlighted by your adversary that says, we're in the force, causes the arm to shift to the lowered position.

[00:23:02] Speaker 01:
And that's the arm, right?

[00:23:03] Speaker 01:
The force, though, is communicated to the rest of assembly, not to the United States.

[00:23:07] Speaker 02:
But it says the arm, regardless of where the force comes from.

[00:23:11] Speaker 02:
It says, causes the arm to shift, where shift means pivot, causes the arm to pivot.

[00:23:19] Speaker 02:
So how is that?

[00:23:21] Speaker 02:
How is the fact that some other part of the assembly shift pivots?

[00:23:26] Speaker 02:
How does that make the arm pivot?

[00:23:28] Speaker 01:
Well, first of all, the requirements that the arrestor assembly be pivotable and that the forces communicated to the arrestor assembly.

[00:23:38] Speaker 01:
If the arm is affixed or attached to a part of the arrestor assembly, then the arrestor assembly pivoting causes the

[00:23:47] Speaker 01:
arm to pivot.

[00:23:48] Speaker 02:
I don't think the arm moves up and down.

[00:23:50] Speaker 02:
I don't think it rotates or pivots, right?

[00:23:54] Speaker 01:
I mean, the arm alone.

[00:23:55] Speaker 01:
Sure, and to follow up on that point, Your Honor, in distinguishing claim five from claim one, there's no requirement that the arm be pivotally attached.

[00:24:03] Speaker 01:
I mean, what you're describing, it appears, is a situation where the arm itself would be pivotally attached to the unit so it could pivot or swing back and forth.

[00:24:11] Speaker 01:
And that's not a requirement of the claim.

[00:24:13] Speaker 01:
That's a requirement of claim one.

[00:24:14] Speaker 01:
I mean, claim one specifically requires

[00:24:16] Speaker 01:
that the arm be pivotally attached, and that the arm be capable of pivotal movement.

[00:24:21] Speaker 03:
But claim five, the only- But where do you see in claim five, again, assuming this claim construction was right, but where do you see in claim five that it says the arrestor assembly pivots?

[00:24:34] Speaker 03:
It says an internal cable defining a first end and a second end, the first end being coupled to the arrestor assembly to communicate a force to the arrestor assembly, comma,

[00:24:44] Speaker 03:
Where in the force causes the arm to shift, i.e.

[00:24:48] Speaker 03:
pivot, to the lowered position?

[00:24:49] Speaker 01:
Sure, Your Honor.

[00:24:50] Speaker 01:
If you go up a few lines, I believe it's line 17 where it says, an arrestor assembly connected to the vehicle structure shiftable between a raised position and a lowered position.

[00:25:01] Speaker 01:
Where it says shiftable between a raised position and a lowered position, that is, I believe, speaking of the arrestor assembly.

[00:25:07] Speaker 01:
So you're saying shiftable means pivotable?

[00:25:10] Speaker 01:
Well, under the court's construction, shiftable would mean pivotal.

[00:25:14] Speaker 01:
Yes, Your Honor.

[00:25:15] Speaker 02:
But how do you satisfy the later limitation?

[00:25:18] Speaker 02:
Even if you satisfy that the arrestor assembly is shiftable, how is the other limitation satisfied?

[00:25:24] Speaker 01:
Yes, Your Honor.

[00:25:25] Speaker 01:
We believe if you read that lower language, the language that appears below in that claim with the language above it, if you read that in context, it's the force.

[00:25:35] Speaker 01:
And this is what I believe Mr. Kernel testified to, that the

[00:25:39] Speaker 01:
force is communicated to the arrestor assembly and that the arrestor assembly moves in a pivotal motion.

[00:25:47] Speaker 01:
But the claim says it causes the arm to shift.

[00:25:49] Speaker 01:
Sure, and if the arm, Your Honor, is affixed to the arrestor assembly and the arrestor assembly is moving in a pivotal motion, Mr. Cornell testified that that pivotal movement, which affects the arrestor assembly, that's sufficient to satisfy the limitation that the arm pivots.

[00:26:06] Speaker 01:
I mean, that's what he testified to.

[00:26:08] Speaker 04:
Again, I'm a little confused on all of this.

[00:26:11] Speaker 04:
You're saying the arrestor assembly does pivot?

[00:26:15] Speaker 04:
Yeah, the claim itself is there's a wheel that rotates or pivots, but the assembly itself doesn't pivot.

[00:26:25] Speaker 01:
The testimony at trial, Your Honor, was that the wheels or rollers are part of the arrestor assembly.

[00:26:30] Speaker 01:
And it was undisputed that the wheels or rollers pivot, and so the arrestor assembly does

[00:26:35] Speaker 01:
operate through a pivotal movement being the movement of the wheels or rollers.

[00:26:39] Speaker 01:
They're expert, I believe, in this.

[00:26:40] Speaker 03:
So you're saying if the court's claim construction was right, that shift as used in the lower limitation has to mean pivot, then shift the bull in reference to the arrestor assembly must mean pivotable.

[00:26:54] Speaker 01:
Yeah, I believe, Your Honor, he believed it was part of the court's claim construction.

[00:27:13] Speaker 01:
But yes, to answer your question, yes, that is what we're saying.

[00:27:16] Speaker 01:
And so that shiftable language, meaning that the arrest assembly is shiftable.

[00:27:21] Speaker 04:
But again, you're talking about wheels or pulleys that are part of the assembly that rotate, but not the assembly itself.

[00:27:32] Speaker 04:
I mean, it's like saying on my car, the wheels on my car pivot.

[00:27:37] Speaker 04:
Therefore, when I go from point A to point B, my car pivots.

[00:27:42] Speaker 04:
My car is not pivoting.

[00:27:45] Speaker 04:
My car is not rotating.

[00:27:48] Speaker 04:
The wheels rotate, but the car doesn't rotate.

[00:27:52] Speaker 01:
And, Your Honor, I believe that the testimony trial was that it was sufficient to satisfy the claim that there be a pivotal movement in the operation of the assembly in the arm.

[00:28:00] Speaker 01:
And what Mr. Cornell testified is that that pivotal

[00:28:04] Speaker 01:
motion is satisfied by the wheels and rollers, which their own expert acknowledged that that was a pivotal movement, and that without the pivot, it wouldn't work.

[00:28:12] Speaker 01:
I mean, you had to have that pivotal movement.

[00:28:14] Speaker 01:
Pivotal movement.

[00:28:15] Speaker 01:
Pivotal movement.

[00:28:16] Speaker 03:
How do we get around the fact that we have to vacate this damages award because of the jury not following the jury instructions?

[00:28:22] Speaker 01:
Your Honor, I would cite the Wright-Height case.

[00:28:26] Speaker 01:
That's the 56, F3rd, 1538, where it talks about the

[00:28:34] Speaker 01:
The reasonable royalty language is a floor, not a ceiling.

[00:28:39] Speaker 01:
And if you have a damage award, as you do in this case, that is within the scope of the evidence presented at trial, that that award can be sustained.

[00:28:46] Speaker 01:
There's no doubt that the jury could have and probably should have done something different in the way it calculated it.

[00:28:53] Speaker 01:
But the end result was an award that was well within the scope.

[00:28:56] Speaker 01:
The amount, I think, was 465.

[00:28:58] Speaker 03:
But you can't use the same base sales.

[00:29:00] Speaker 03:
If the court says you can, if you award

[00:29:03] Speaker 03:
lost profits, you can't award reasonable royalty on those same sales.

[00:29:07] Speaker 03:
And they use the exact same base sales.

[00:29:10] Speaker 03:
They use the total sales for both.

[00:29:12] Speaker 01:
So that has to be wrong, right?

[00:29:14] Speaker 01:
Well, what the jury did was they shaved both the profits by 200,000 and the percentage by a few percentage points.

[00:29:21] Speaker 01:
And we don't know exactly why they chose to do that, whether that was to account for the fact that they were awarding both or not.

[00:29:27] Speaker 01:
What we know for sure is that that total number is within the scope of the

[00:29:32] Speaker 02:
evidence presented in terms of damages our evidence was good enough when the royalty you know the royalty is on the entire base right so there's some sort of double recovery I agree with you that on the lost profits you don't know what for how many sales lost profits were awarded or if the amount of lost profits were changed but in any event you have to admit that there's some sort of double recovery here

[00:29:59] Speaker 01:
since the reasonable royalty is on the entire base.

[00:30:09] Speaker 01:
and told them we'd asked for.

[00:30:11] Speaker 01:
So it wasn't like they awarded us.

[00:30:13] Speaker 02:
There's lost profits on some portion of the base, and then there's reasonable royalty on the entire portion of the base.

[00:30:19] Speaker 02:
How can that be proper?

[00:30:20] Speaker 01:
Yes, Your Honor.

[00:30:21] Speaker 01:
I mean, and had they awarded us the full amount of profits that we'd asked for and then a reasonable royalty, there's no doubt that that would have been grossly excessive.

[00:30:29] Speaker 01:
I believe that's the standard, by the way.

[00:30:30] Speaker 01:
It's grossly excessive.

[00:30:32] Speaker 01:
We don't believe it's grossly excessive for them to have awarded us less than the others.

[00:30:35] Speaker 03:
So you're saying if there's an obvious legal error

[00:30:39] Speaker 03:
in what the jury did, that as long as the numbers are still within reason, it's OK?

[00:30:44] Speaker 01:
That is what we're saying, Your Honor.

[00:30:46] Speaker 01:
That the question is whether the award itself was grossly excessive.

[00:30:50] Speaker 01:
We don't believe it is, because it's within the scope of the evidence presented at trial.

[00:30:53] Speaker 04:
I don't think that's the question.

[00:30:55] Speaker 04:
It's not whether it's grossly excessive.

[00:30:58] Speaker 04:
It's whether it's legally incorrect, because it's a double recovery.

[00:31:04] Speaker 04:
And you haven't answered that.

[00:31:06] Speaker 04:
You haven't yet answered our questions about why that is proper to use the same base for both lost profits and reasonable royalty recovery.

[00:31:16] Speaker 01:
Yes, Your Honor.

[00:31:17] Speaker 01:
And again, our reading of the law is as long as the amount of the award is not grossly excessive, there's no reason to... Well, let's assume you're wrong on that.

[00:31:24] Speaker 04:
Sure.

[00:31:24] Speaker 04:
Then why is it legally proper to have a double recovery to base both lost profits

[00:31:30] Speaker 04:
and reasonable royalties on the same basis.

[00:31:32] Speaker 01:
Yeah, and without a doubt, the case law says that you calculate a reasonable royalty only as to those amounts for which you don't recover lost profits.

[00:31:40] Speaker 01:
I mean, that's the way, if the calculation is to be performed correctly, that's the way it should have been performed.

[00:31:45] Speaker 01:
The GER instruction that was utilized and the way it was filled out, it should not have been filled out that way.

[00:31:51] Speaker 01:
There's no dispute about that.

[00:31:52] Speaker 01:
I'm not trying to argue that if I had to do it all over again, I would have used maybe the same instruction

[00:31:56] Speaker 01:
But that was what was agreed upon by the parties and submitted by the court, and the jury filled it out incorrectly.

[00:32:03] Speaker 01:
But now here on review, the question, as I understand it, is whether the, as suggested by the case laws, whether the amount

[00:32:11] Speaker 01:
itself was grossly excessive, and we simply don't believe it was, because it falls within the scope of the evidence.

[00:32:16] Speaker 01:
I mean, had the jury put that entire amount on either line, well, not on either line, but on the profits line, it clearly would have been correct.

[00:32:26] Speaker 01:
I mean, at least in the sense of the form would have been right, and the number would have been fine.

[00:32:34] Speaker 01:
But what happened here was that amount is split between the royalty and the profits, and that split then causes it

[00:32:41] Speaker 01:
that causes it to appear that there was this error by the jury in basically calculating the royalty on the entire amount.

[00:32:50] Speaker 01:
So I guess what I'm saying, Your Honors, I agree with you.

[00:32:54] Speaker 01:
There was error in the way the jury went about filling out that form.

[00:32:58] Speaker 01:
But I don't think that that's the same thing as saying that that end amount is unsupportable.

[00:33:02] Speaker 01:
The end amount that they came up with was supported by the evidence.

[00:33:05] Speaker 01:
And we believe on that basis can be sustained.

[00:33:09] Speaker 03:
OK, your time is up.

[00:33:10] Speaker 03:
We'll give you your first full five minutes for rebuttal.

[00:33:15] Speaker 03:
And I'm doing that because we went over with him.

[00:33:22] Speaker 03:
I'm going to let the district judge come out on me here.

[00:33:26] Speaker 03:
I mean, this case is a mess.

[00:33:28] Speaker 03:
We probably have the wrong claim construction, though the complaint about that is probably waived.

[00:33:33] Speaker 03:
We've got sort of real questionable evidence because it's clear that your twin man can't be used without a tether.

[00:33:42] Speaker 03:
So at least you would have been subject to an inducement or a contrived claim.

[00:33:48] Speaker 03:
And it sure looks like you had all your distributors selling these things or selling the tether with them.

[00:33:55] Speaker 03:
Whether they're separately wholly owned distributors and maybe they didn't sue all the right people.

[00:34:00] Speaker 03:
We've got debates about the scope of the injunction.

[00:34:03] Speaker 03:
We've got debates about the damages.

[00:34:05] Speaker 03:
And we're talking $400,000.

[00:34:06] Speaker 03:
So why has this not settled?

[00:34:10] Speaker 00:
Because A, it relates to products that will go on selling for years and years and years.

[00:34:15] Speaker 04:
Are you still selling those products?

[00:34:18] Speaker 00:
No, we stopped voluntarily even before the injunction was issued.

[00:34:22] Speaker 00:
We stopped the day after that.

[00:34:23] Speaker 03:
So what are we talking about, years and years and years?

[00:34:26] Speaker 03:
If you stopped voluntarily before the injunction was ever even issued.

[00:34:30] Speaker 00:
Well, we're not selling that.

[00:34:32] Speaker 00:
I mean, it is a hardship to our company because we're not selling a product that was very popular, that we worked hard to get our own patent on.

[00:34:43] Speaker 03:
There's obviously not a ton of profits if we're only talking $400,000 in damages.

[00:34:49] Speaker 00:
Well, you have to remember that this case was essentially sued out the day, you know, the first day our product hit the market and the court didn't allow anything prior.

[00:35:02] Speaker 00:
So we've got a very defined time period here.

[00:35:08] Speaker 04:
The patent is relatively simple and straightforward.

[00:35:11] Speaker 04:
The products that are accused are simple and straightforward.

[00:35:14] Speaker 04:
Absolutely.

[00:35:15] Speaker 04:
The amounts are not excessive.

[00:35:18] Speaker 04:
Absolutely.

[00:35:19] Speaker 04:
And some cases cry out for a judicial resolution.

[00:35:25] Speaker 04:
Other cases cry out for a business resolution.

[00:35:28] Speaker 04:
Why doesn't this cry out for a business resolution rather than

[00:35:33] Speaker 04:
running the clock and having this legal dispute run on and on and on?

[00:35:39] Speaker 03:
Possibly a new trial on damages.

[00:35:42] Speaker 03:
Listen, I agree.

[00:35:43] Speaker 00:
And we believe we stepped up as far as we possibly could to try and get this thing resolved before trial.

[00:35:51] Speaker 04:
Have there been ongoing settlement discussions?

[00:35:54] Speaker 00:
Well, there certainly were up to the point of the day of trial.

[00:35:57] Speaker 00:
There were lots of discussions of varying different alternatives.

[00:36:02] Speaker 00:
And so I don't think there wasn't an agreement.

[00:36:06] Speaker 00:
I don't think that any party can be faulted.

[00:36:11] Speaker 04:
But there wasn't.

[00:36:12] Speaker 04:
Because I agree with Judge O'Malley.

[00:36:15] Speaker 04:
I think this claim construction was wrong.

[00:36:17] Speaker 04:
And on the correct claim construction, I think you've got some serious exposure for that multi-man unit.

[00:36:24] Speaker 04:
And on the tethered unit, I mean, it almost seems ridiculous that we're arguing about whether it was sold with or without a tether when everybody knows.

[00:36:32] Speaker 04:
The thing doesn't work without a tether.

[00:36:35] Speaker 04:
And if it wasn't direct, it would be contributory or induced infringement.

[00:36:40] Speaker 04:
So you've got some serious liability exposure one way or the other here.

[00:36:46] Speaker 00:
Sure.

[00:36:47] Speaker 00:
And had they asserted induced infringement, we would be in a different situation.

[00:36:52] Speaker 00:
But they've also commenced litigation against all of the distributors.

[00:36:58] Speaker 04:
Well, maybe that's another good reason to work out some kind of a settlement.

[00:37:02] Speaker 04:
Be done with it.

[00:37:02] Speaker 00:
Certainly.

[00:37:03] Speaker 00:
But here today, we're only talking about the Garlock entity.

[00:37:07] Speaker 00:
Whether the claim of inducement was included, it wasn't.

[00:37:10] Speaker 00:
Whether Garlock sold it to other, they didn't.

[00:37:13] Speaker 00:
Doesn't mean those other claims go away against other distributors, but those are separate and independent companies.

[00:37:19] Speaker 00:
And it's not the entity that's before you today.

[00:37:23] Speaker 03:
Okay, we used up all your time, but I'll give you just two minutes to make whatever points in rebuttal you'd like to make.

[00:37:30] Speaker 00:
Your Honor, I would just make one or two points.

[00:37:32] Speaker 00:
The sole evidence as to the damages was included in a demonstrative exhibit outside Mr. Carter's testimony, which is at A1084.

[00:37:45] Speaker 00:
That's the sole evidence.

[00:37:47] Speaker 00:
It came in over my objection because it was a demonstrative

[00:37:52] Speaker 00:
But this is, if we're looking at what is or is not included in the damages, that's the whole line.

[00:38:00] Speaker 04:
And what page was that?

[00:38:01] Speaker 00:
It starts at 1084.

[00:38:05] Speaker 00:
The real significant pages is 1088, and that includes the

[00:38:11] Speaker 00:
This is the evidence, if you're talking about whether or not the tether was included, this is the evidence and the tether is not part of that evidence.

[00:38:21] Speaker 04:
How do we know whether it was or was not included?

[00:38:24] Speaker 00:
It's kind of like never sold a tether.

[00:38:26] Speaker 00:
They've never, ever sold a tether.

[00:38:28] Speaker 00:
They've never bought a tether.

[00:38:34] Speaker 03:
Did you object to the fact that the trial court allowed a demonstrative

[00:38:37] Speaker 03:
I did.

[00:38:38] Speaker 03:
Aid?

[00:38:38] Speaker 03:
I mean, did you object here in your brief?

[00:38:41] Speaker 03:
I didn't see that in your brief.

[00:38:43] Speaker 00:
I don't recall whether I did or did not.

[00:38:45] Speaker 00:
I mean, we objected on the record at the trial court.

[00:38:48] Speaker 00:
Right.

[00:38:49] Speaker 03:
But you need to raise that as a ground for appeal, right?

[00:38:53] Speaker 00:
Right.

[00:38:53] Speaker 00:
And what I'm saying is I'm not objecting to what's contained in here.

[00:38:57] Speaker 00:
I'm saying this is the whole evidence as to the damages.

[00:39:05] Speaker 00:
There is no other document out there.

[00:39:08] Speaker 00:
So I'm not objecting to what's contained in there.

[00:39:11] Speaker 00:
What I'm saying is, if you're looking to say is a tether included, there's nothing here that indicates that is in any way.

[00:39:20] Speaker 04:
So 1088, that's the plaintiff's sales.

[00:39:25] Speaker 04:
1089 also plaintiff's sales?

[00:39:29] Speaker 00:
No, these are 1088.

[00:39:31] Speaker 00:
That's the Raptor sales.

[00:39:36] Speaker 04:
These are the Garlock sales.

[00:39:39] Speaker 04:
Even though the heading is AES Raptor?

[00:39:43] Speaker 00:
Yeah.

[00:39:45] Speaker 00:
These are the two numbers that incorporated 100% of what Garlock sales were on the two products, which Mr. Carter then opined under the Panduit Factors would have all been, have gone to AES Raptor,

[00:40:04] Speaker 00:
Regardless of the geographic limitations and the other competing products, so.

[00:40:13] Speaker 00:
Okay.

[00:40:13] Speaker 00:
All right, thank you.

[00:40:14] Speaker 00:
Thank you.

[00:40:15] Speaker 03:
That case will be submitted.