[00:00:00] Speaker 00: 6-2, TV2M, LLC versus McAfee. [00:00:33] Speaker 00: OK, you're finally going to tell me the correct pronunciation of your client's name. [00:00:37] Speaker 02: T-V-I-I-M. [00:00:38] Speaker 00: T-V-I-I-M. [00:00:40] Speaker 00: T-V-I-I-M. [00:00:41] Speaker 00: All right, thank you. [00:00:43] Speaker 00: Let's make sure. [00:00:43] Speaker 00: Why don't you give the other side a minute to get organized. [00:00:48] Speaker 00: You good? [00:00:48] Speaker 00: OK, please. [00:00:49] Speaker 00: May it please the court. [00:00:50] Speaker 02: One of the first judges we had in the matter had the same issue, and he wanted us to come up with a better name than T-V-I-I-M. [00:00:56] Speaker 02: This case also seems interesting in that we have a similar claim term as to the prior argument in response to it. [00:01:03] Speaker 02: But this case, again, is not a case about claim construction. [00:01:08] Speaker 02: And what I find interesting about this case is that McAfee concedes that a district court's decision affirming the jury's verdict of both infringement and invalidity cannot be reconciled with any single ordinary meaning of the three claim terms relied upon by their expert. [00:01:26] Speaker 02: So we're in an instance here where on post-trial motions, the judge is obligated [00:01:33] Speaker 02: to apply the facts that the jury's heard against the verdict, but also apply it to the correct law. [00:01:43] Speaker 02: And that would include the claim construction. [00:01:45] Speaker 02: The construction of the claims is the law of the case that the facts must be applied against. [00:01:50] Speaker 02: In this instance, it is impossible to reconcile a finding of infringement and invalidity with any single claim construction. [00:02:00] Speaker 01: What does it matter if you [00:02:02] Speaker 01: you can see that there's substantial evidence to support the verdict for one or the other. [00:02:07] Speaker 01: I mean, if you say, you lose either way, don't you? [00:02:12] Speaker 02: No, we don't, because you can't do it as to both. [00:02:14] Speaker 02: So therefore, you have an error. [00:02:16] Speaker 02: But what if we do it just as to one? [00:02:18] Speaker 02: And that's the argument that McAfee makes. [00:02:20] Speaker 02: McAfee makes the argument that if there's invalidity. [00:02:24] Speaker 01: What's the legal authority that we're prohibited from applying substantial evidence to just one [00:02:33] Speaker 02: Well, that would be state contracting engineering, which says that you must apply the same construction to both validity and infringement. [00:02:44] Speaker 02: So you're right. [00:02:45] Speaker 02: If you apply one construction, you can sustain an invalidity verdict. [00:02:49] Speaker 02: But that then proves that the infringement verdict is wrong, because it cannot be sustained by the same construction. [00:02:56] Speaker 04: But let's assume the infringement verdict is wrong. [00:03:00] Speaker 04: But you've conceded that the patent is invalid. [00:03:03] Speaker 02: No. [00:03:04] Speaker 02: Oh, sorry. [00:03:05] Speaker 04: Well, it looked to me like the district court in the J-Mall said that the verdict was sustainable under 103. [00:03:14] Speaker 04: Obvious. [00:03:15] Speaker 02: Yes, then that would go to the issue. [00:03:18] Speaker 04: Yes. [00:03:19] Speaker 04: That's what little Raymond read the J-Mall order to say. [00:03:24] Speaker 04: I did not read you to appeal that decision on the J-Mall. [00:03:29] Speaker 02: Because you'd have the same... Let me just talk. [00:03:31] Speaker 04: I didn't read you to say, oh, no, no, you're wrong. [00:03:35] Speaker 04: The verdict could not be sustained under 103. [00:03:39] Speaker 04: So what I'm stuck with in my little brain is that I have a case in front of me where a district court judge said the jury's verdict is sustainable on 103. [00:03:48] Speaker 04: You didn't appeal that. [00:03:50] Speaker 04: Why do I care if the jury got infringement right or wrong? [00:03:54] Speaker 04: Because it's textbook law. [00:03:55] Speaker 04: You cannot infringe an invalid patent. [00:03:58] Speaker 04: So going forward, out there in the world, maybe it'll make you feel better if somebody told you that the jury screwed up on infringement. [00:04:08] Speaker 04: But if the jury did not make a mistake on validity, your patent is gone. [00:04:14] Speaker 04: You're not going to be able to assert that patent ever again. [00:04:17] Speaker 02: Absolutely, Your Honor, but we have to take a step back. [00:04:19] Speaker 02: We have to take a step back because the verdict must be evaluated based on a construction. [00:04:27] Speaker 02: And it must be evaluated based on a single construction. [00:04:31] Speaker 04: So you can adopt it. [00:04:32] Speaker 04: So what? [00:04:33] Speaker 04: I mean, so you agree that there is a construction out there that's just fine. [00:04:37] Speaker 04: And pursuant to that instruction, unfortunately, your client's patent is invalid, gone, and lost forever. [00:04:43] Speaker 02: And that is in place. [00:04:44] Speaker 04: And I think what Judge Arena was asking was, is like, so what if the jury made a mistake on transfer? [00:04:51] Speaker 02: Because the verdict cannot be sustained [00:04:54] Speaker 02: on a single construction. [00:04:56] Speaker 02: You were allowing a court to adopt one construction to find a patent invalid and then say end of story. [00:05:05] Speaker 02: And in this case, it's harmless error. [00:05:08] Speaker 02: It's not harmless error because the first step. [00:05:11] Speaker 02: Assuming, if it was harmless error, you would agree with me. [00:05:14] Speaker 04: You wouldn't have a case. [00:05:15] Speaker 02: Absolutely, if it was harmless error. [00:05:16] Speaker 02: And here's why the harm. [00:05:17] Speaker 04: So where's the harm if you've conceded that your patent is invalid, right? [00:05:23] Speaker 04: Where's the harm to you to not having a paper statement that there was infringement, which has no legal effect? [00:05:31] Speaker 02: We don't. [00:05:31] Speaker 04: It's like something that patentee can sort of hang up in his office to say, I got him, but I didn't get any money for it. [00:05:37] Speaker 02: We don't concede the patent is invalid. [00:05:41] Speaker 02: What we concede is you can come up with a construction that could support invalidity. [00:05:48] Speaker 02: And that same construction would support invalidity on anticipation or invalidity on obviousness. [00:05:57] Speaker 04: But in your view, it won't support infringement. [00:06:01] Speaker 02: And that goes to the fundamental tenet of claim construction, which is you must apply [00:06:07] Speaker 02: the same construction to both invalidity and infringement. [00:06:13] Speaker 00: But we don't know what the jury did and whether the jury might have done that, but nonetheless aired in its conclusions with respect to infringement, but not invalidity. [00:06:22] Speaker 02: And that's why the simple question to the district court and to McAfee on appeal is what is [00:06:33] Speaker 02: any conceivable construction you can come up with, come up with any conceivable construction that could exist as to these three terms that could sustain both a finding of invalidity and infringement. [00:06:46] Speaker 04: Any other question here as to whether or not you ever asked for an interrogation of those terms? [00:06:51] Speaker 02: The terms were not subject to construction because. [00:06:57] Speaker 04: Maybe I'm missing something. [00:07:00] Speaker 04: It seemed to me that we had a case here where you're making a fundamental claim construction argument on appeal, that there was an invalid jury verdict here because you can't have it both ways with the same claim construction. [00:07:14] Speaker 04: But you never challenge a claim construction. [00:07:16] Speaker 04: And the construction you're offering now, which is the predicate for your end argument, depends on the claim construction that you're offering us for the first time. [00:07:26] Speaker 02: I'm not offering any claim construction. [00:07:28] Speaker 02: I'm asking anyone to come up with any imaginable claim construction that would sustain the verdict. [00:07:34] Speaker 02: The issue of what happened here at the trial level, while there was no objection, is you have two elements when you're doing this type of evaluation. [00:07:43] Speaker 02: You have the construction, and then you have whether the facts support the construction. [00:07:48] Speaker 02: in connection with the cross-examination of McAfee's expert. [00:07:52] Speaker 04: I'm not sure that they'll make it when they get up, which is to say that you're really wrong in thinking that there is this one claim construction, and you can't apply it to both claim construction and infringement. [00:08:05] Speaker 04: You know, the argument in their red brief, which I think maybe you responded to. [00:08:09] Speaker 04: Yes. [00:08:11] Speaker 04: that there's room for wiggle, which there always is in these patent cases, then the jury appreciated it. [00:08:18] Speaker 04: They're smart people. [00:08:19] Speaker 04: They saw the wiggle room, right? [00:08:21] Speaker 04: In which case, there's no inconsistency between the so-called interpretations. [00:08:26] Speaker 02: And your argument falls right on its face. [00:08:28] Speaker 02: Here's why it doesn't. [00:08:29] Speaker 02: And I would hear what I'm saying. [00:08:31] Speaker 02: I absolutely hear what you're saying. [00:08:33] Speaker 02: And you should, when you read McAfee's- It's not unreasonable for me to be saying this in the interstices, is it? [00:08:38] Speaker 02: You're absolutely right, Your Honor. [00:08:40] Speaker 02: And that's why McAfee could have come forward with a construction that would have supported it. [00:08:45] Speaker 02: But what they did instead is they said the only way you can sustain a verdict of infringement and validity here is to reconstrue the only term that was construed, vulnerability. [00:08:58] Speaker 02: They say, yes, the verdict of invalidity and infringement can be sustained if you find that all discrepancies are vulnerabilities. [00:09:11] Speaker 02: And the court below specifically rejected that construction. [00:09:15] Speaker 02: Every single witness in the case said all discrepancies are not vulnerabilities. [00:09:22] Speaker 02: And McAfee in its brief comes up and argues, well, that's a false distinction. [00:09:26] Speaker 02: All discrepancies must be vulnerabilities. [00:09:29] Speaker 02: Therefore, we win. [00:09:30] Speaker 02: And they're right. [00:09:30] Speaker 02: If all discrepancies are vulnerabilities, then you can rationalize. [00:09:36] Speaker 02: a single construction for infringement and invalidity, but they didn't appeal the vulnerability construction. [00:09:46] Speaker 02: The vulnerability construction is an exploitable weakness, and not all discrepancies are vulnerabilities. [00:09:55] Speaker 02: File permissions, file errors, a discrepancy could actually make a file more secure. [00:10:01] Speaker 02: If it's more secure, it's a discrepancy, but no one would contend that's a vulnerability. [00:10:08] Speaker 02: So in this instance, this is not an instance where we can sustain a verdict on invalidity so we don't need to deal with issues of infringement because you can't infringe an invalid patent. [00:10:22] Speaker 02: You have a different issue here. [00:10:23] Speaker 02: You have the same legal principle that is up. [00:10:27] Speaker 02: Can this verdict be sustained by a single construction, ordinary meaning construction, of these three terms? [00:10:34] Speaker 02: And it cannot. [00:10:36] Speaker 02: So simply saying you have a construction that supports invalidity does not answer the question of, and the question that's before this court, is did the district court err in not first, in not [00:10:52] Speaker 00: Applying the facts of the case to a single construction of the three terms and it's yes I guess what you're you're you're saying sounds so strange to me because when we get a lot of cases and there are problems that arise when everybody says ordinary meaning and then we get oh to micro or questions about the court so now you're suggesting a scenario whereby you agree ordinary meaning and then at the end of the day and [00:11:18] Speaker 00: Your analysis really comes down to somebody picking the correct ordinary meaning, which is something you could have sought at the outset. [00:11:25] Speaker 00: So the judge, in order to evaluate, somebody's going to have to figure out what the ordinary meaning is. [00:11:31] Speaker 00: Because now you say, we've got a plate full of potential ordinary meanings, and we're trying to pick one of those and see if the infringement and validity verdict can fit within that. [00:11:40] Speaker 00: Isn't that a strange way to proceed? [00:11:42] Speaker 02: And that's not the way I'm proceeding, Your Honor. [00:11:44] Speaker 02: The way I proceeded in this case was we had ordinary meaning constructions. [00:11:49] Speaker 02: Their expert offered these three terms [00:11:53] Speaker 02: by their ordinary meaning would not support infringement because all elements were practiced. [00:12:00] Speaker 02: So I said, taking your ordinary meaning, expert, let's look at invalidity. [00:12:08] Speaker 02: And the facts would not support invalidity. [00:12:11] Speaker 02: So we're not asking for a particular construction. [00:12:14] Speaker 02: We're asking, does the facts of this case support any construction? [00:12:20] Speaker 02: And it doesn't. [00:12:20] Speaker 02: And I agree, Your Honor. [00:12:21] Speaker 02: You have a number of cases, the O2 issues, where parties are arguing, well, the ordinary meeting should have been construed, and you didn't object as to ordinary meetings, so there was a dispute, and you should have resolved that dispute before. [00:12:34] Speaker 02: That's not where we're at. [00:12:36] Speaker 02: This case could have very, very easily been resolved. [00:12:39] Speaker 02: It's in a very different procedural posture, where McAfee simply had to come up with any [00:12:46] Speaker 02: ordinary meaning construction. [00:12:47] Speaker 02: The district court simply had to come up with any ordinary meaning construction. [00:12:52] Speaker 02: If the district court said, here's the ordinary meaning construction, here's how the facts support that ordinary meaning, I could not come before you now and argue, oh, that ordinary meaning construction's wrong, that ordinary meaning construction's not supported by the record. [00:13:07] Speaker 02: We're doing the opposite here. [00:13:09] Speaker 02: We're saying we've got a set of facts. [00:13:11] Speaker 02: We've got a set of facts that the jury found. [00:13:14] Speaker 04: Well, as I said to you earlier, if in a circumstance in which there is no meaning given to the ordinary meaning, you turn to a jury and you say, well, you just, the ordinary meaning of those words, right? [00:13:26] Speaker 04: And I think you've conceded that there is a possible interpretation that the jury could have reached that could put all this together. [00:13:35] Speaker 04: So it could have happened. [00:13:37] Speaker 04: It's a black box. [00:13:38] Speaker 04: We don't know what happened inside the black box. [00:13:41] Speaker 02: They could have done it for one or the other. [00:13:43] Speaker 02: But you have the fundamental tenet. [00:13:46] Speaker 02: If we want to get rid of the tenet, that you need to apply the same ordinary mean to infringement. [00:13:50] Speaker 02: Well, you're on the other side. [00:13:50] Speaker 04: I mean, they're eager to get up, I think. [00:13:52] Speaker 04: But my recollection from reading the briefs was that your adversary believes that there is a way of interpreting these claims that doesn't throw the baby out with the bat and defeats your argument that there's no inconsistency. [00:14:07] Speaker 02: Absolutely, they do. [00:14:08] Speaker 02: But that requires. [00:14:10] Speaker 02: a reconstruction of the only term construed by the court, which is vulnerability. [00:14:15] Speaker 02: Their entire brief depends on all discrepancies being vulnerabilities and a potential vulnerability being a vulnerability. [00:14:26] Speaker 02: And the district court rejected that construction. [00:14:29] Speaker 02: The district court said it has to be an exploitable weakness. [00:14:32] Speaker 02: It is undisputed that the prior art [00:14:36] Speaker 02: detects only discrepancies and lacks the logic to detect vulnerabilities. [00:14:42] Speaker 01: So you have an interesting argument. [00:14:47] Speaker 01: There's a couple of problems with it, though. [00:14:49] Speaker 01: I mean, the first one that we pointed out to you, that you say there's substantial evidence that supports either one, but not both. [00:14:59] Speaker 01: And the question is, are we looking at a harmless error situation here? [00:15:04] Speaker 01: The other one is that if, in fact, you really believe in your no single construction argument that you're presenting today, then you should have or you failed to have objected during the trial itself when counsel is now taking the same facts and making the arguments that it made before the jury. [00:15:25] Speaker 01: You didn't argue at that point to protect your no single construction argument, and you should have. [00:15:32] Speaker 02: Let me respond to that, that what we're talking about here is argument of facts as opposed to misapplying the construction. [00:15:41] Speaker 01: If we're going to take the position that... During the trial, you should have... [00:15:44] Speaker 01: You should have. [00:15:45] Speaker 01: Once council started now straying into using the same facts to show, let's say, invalidity, you should have said no. [00:15:54] Speaker 01: You know, as a matter of law, Your Honor, you should have objected at that point in time for using the same set of facts, given that you can't use the same construction in order to find that you have to use the same construction in order to find invalidity and infringement. [00:16:09] Speaker 02: I know my time's running, but let me answer that question. [00:16:11] Speaker 02: That would apply then to every single case, because in every single patent case, both when the facts are coming in and closing arguments coming in, the parties believe the facts they're presenting support their construction, support are consistent with proving or disproving infringement or invalidity. [00:16:31] Speaker 02: And they don't. [00:16:31] Speaker 02: That's why we have disputes. [00:16:33] Speaker 02: So what we are arguing here is we had competing facts. [00:16:36] Speaker 02: Our position was the facts don't support [00:16:39] Speaker 02: an ordinary-meaning construction here. [00:16:41] Speaker 02: And we dealt with it as we are supposed to, which is on cross-examination of their expert, showing that while he says this supports infringement, it doesn't support invalidity. [00:16:51] Speaker 02: And then with respect to my closing argument, I said the same thing. [00:16:55] Speaker 02: Mr. Mueller says these facts would support this construction. [00:17:00] Speaker 02: But I'm telling you, jury, it doesn't support that construction. [00:17:03] Speaker 02: Then you get to the judge. [00:17:04] Speaker 02: It posts trial motions. [00:17:06] Speaker 02: And it's the simple principle that I just need to emphasize again. [00:17:09] Speaker 02: You must apply the same construction to validity and infringement. [00:17:14] Speaker 02: So the fact that the judge can find invalidity applying one construction doesn't end the story, because that construction would not support the jury's verdict of infringement and violates the tenet that you must apply the same construction to both. [00:17:29] Speaker 02: Thank you. [00:17:30] Speaker 02: I'll reserve the rest of my time. [00:17:31] Speaker 00: You have no time left, but we'll restore two minutes of rebuttal. [00:17:34] Speaker 00: Oh, I thought I said, OK, thanks. [00:17:38] Speaker 00: You exceeded your time. [00:17:39] Speaker 00: We're two minutes beyond everything. [00:17:41] Speaker 00: But we'll give you two minutes of rebuttal. [00:17:43] Speaker 03: Yes, sir. [00:17:44] Speaker 03: Good morning, Your Honor. [00:17:45] Speaker 03: May it please the court. [00:17:46] Speaker 03: My name is Joe Mueller. [00:17:47] Speaker 03: And with my colleague Chip O'Neill, I'm here today on behalf of McAfee. [00:17:52] Speaker 03: If I could, I'd like to start by just describing the procedural posture that this case comes before, Your Honors. [00:18:00] Speaker 03: This is an appeal of a post-trial decision of a jury verdict where the jury was presented with evidence of three [00:18:07] Speaker 03: anticipatory references, as well as evidence of obviousness, and was presented with three independent grounds for non-infringement, at least two for each asserted claim in the case. [00:18:19] Speaker 03: That evidence was reviewed by the district court judge, again, in the post-trial decision. [00:18:24] Speaker 03: And the district court judge said, and I quote, the court is firmly convinced that the jury's verdict is not mistaken. [00:18:30] Speaker 03: That's appendix 10. [00:18:32] Speaker 03: Now, to pick up on a point Chief Judge Post you raised in your questioning of Mr. Schaeffer, you asked whether the arguments that are being made today by TV IIM amount to a request to reverse engineer the black box jury verdict. [00:18:48] Speaker 03: That's indeed what has happened here in the briefing. [00:18:51] Speaker 00: Well, do you disagree with sort of the legal predicate for his theory, which is you have to now post hoc [00:19:00] Speaker 00: come up with the claim construction under ordinary meaning that you can reconcile with both verdicts? [00:19:07] Speaker 00: Or is it your view that starting with invalidity, if we can get to invalidity, which he kind of concedes that there's one claim construction that would support invalidity, we don't have to worry about this black box theory about reconciling the two? [00:19:21] Speaker 03: Yes, Your Honor. [00:19:21] Speaker 03: I make two points in response to that. [00:19:23] Speaker 03: The first is this court and the Supreme Court has set forth [00:19:27] Speaker 03: a set of rules for how claim construction is supposed to occur. [00:19:31] Speaker 03: There can be a markman hearing, or as in this case, claim construction can be litigated as part of the summary judgment process. [00:19:38] Speaker 03: There can be, in certain cases, claim construction issues that arise during the course of the trial. [00:19:43] Speaker 03: And if they're raised by the parties, the district court may decide them at that time. [00:19:47] Speaker 03: But this court has made quite clear that claim construction needs to be raised before the case goes to the jury. [00:19:53] Speaker 03: Once the jury has the case, it has in hand the claim language, [00:19:57] Speaker 03: the court's constructions of that claim language. [00:19:59] Speaker 03: And at that point, it's the application of the claims to the facts. [00:20:03] Speaker 04: It's a fact issue. [00:20:04] Speaker 04: Come back to the two judges' questions. [00:20:07] Speaker 04: You agree that you have to have a same claim construction has to be applied to both invalidity and infringement, right? [00:20:15] Speaker 03: I would agree that the jury is supposed to be instructed on that. [00:20:18] Speaker 04: Point one. [00:20:19] Speaker 04: Point one. [00:20:20] Speaker 04: Point two, you had come along with an instance in which an adversary stands up and says, I don't believe that the verdicts can be squared on the same claim construction. [00:20:30] Speaker 04: Point two, that's what your adversary said. [00:20:33] Speaker 04: You have offered a claim construction that you believe solves the problem in your brief, right? [00:20:40] Speaker 03: No, Your Honor. [00:20:41] Speaker 03: Our arguments are about the application of the claims to the facts. [00:20:44] Speaker 03: And as we had described in our brief, the facts are entirely consistent. [00:20:48] Speaker 03: There's no inconsistency between the jury's [00:20:50] Speaker 03: not infringement verdict, and the invalidity verdict. [00:20:53] Speaker 03: We have not attempted to reconstitute the claims post hoc or reverse engineer the jury's decision. [00:20:59] Speaker 03: The point we've made in the brief is that there's nothing in the factual record that demonstrates that as a matter of fact, there was an inconsistency sufficient to grant a new trial. [00:21:08] Speaker 03: There's no claim construction requested on any of the three terms on which the plaintiff now relies before your honors. [00:21:15] Speaker 03: Not once. [00:21:16] Speaker 04: What about the claim that was interpreted? [00:21:19] Speaker 04: Your adversary says you're advocating a different interpretation of that limitation in order to square the verdicts. [00:21:27] Speaker 04: You heard him say that. [00:21:29] Speaker 03: It's simply not true, Your Honor. [00:21:30] Speaker 03: The one claim term that was construed below is the term vulnerability. [00:21:33] Speaker 03: The term was construed to mean an exploitable weakness in the computer system. [00:21:38] Speaker 03: The judge twice ruled against the plaintiff. [00:21:41] Speaker 03: The plaintiff was trying to narrow the scope of that [00:21:44] Speaker 03: exclude certain types of exploitable weaknesses. [00:21:47] Speaker 03: And the judge twice rejected that argument, once in the summary judgment decision, once in a second decision, just prior to trial. [00:21:55] Speaker 03: Now we're hearing again an attempt to reimpose limitations on the meaning of that term. [00:22:00] Speaker 03: That's a term that there's no formal appeal of. [00:22:03] Speaker 03: It was the only term construed below, and there's no appeal of that term. [00:22:07] Speaker 03: And we're not relying on anything different than what the judge construed the term to mean. [00:22:11] Speaker 03: the exploitable weakness in the computer system. [00:22:13] Speaker 04: That's what I had understood. [00:22:13] Speaker 04: I got confused when, of course, the argument seemed to me that your adversary is positing three terms, three limitations in the claim, previously undefined as a matter of claim definition, that he would like a definition for now. [00:22:30] Speaker 04: And it seemed to me it's too late for that. [00:22:32] Speaker 03: You're exactly right, Your Honor. [00:22:33] Speaker 03: And the three terms are in response to or as a result of. [00:22:36] Speaker 03: That's the first term. [00:22:37] Speaker 03: There's actually two phrases, but they're quite similar. [00:22:41] Speaker 03: The second one is various utility functions. [00:22:43] Speaker 03: And the third is reporting the identified vulnerability. [00:22:48] Speaker 03: Those are three terms on which the inconsistency argument they're advancing to your honors relies. [00:22:54] Speaker 03: For none of those three terms was a request made to construe them before trial, at trial. [00:23:01] Speaker 03: As Judge Raina pointed out, there was no objection to the jury verdict at the time it was raised. [00:23:06] Speaker 03: The Ninth Circuit law requires you to raise an inconsistent jury verdict by way of objection to hold the jury over and allow the judge to reinstruct the jury to engage in further deliberations to resolve the inconsistency. [00:23:17] Speaker 03: There's no such objection made when the jury returned its verdict. [00:23:21] Speaker 01: So we have here an attempt to- Didn't the court actually give counsel the opportunity to raise the objection? [00:23:29] Speaker 01: It said, before I release the jury, and that was a time to raise this type of objection. [00:23:34] Speaker 03: That's correct, Your Honor. [00:23:35] Speaker 03: And the Dennis Stevenson case from the Ninth Circuit is squarely on point. [00:23:39] Speaker 03: You need to raise the objection at that time to allow for resolution of the inconsistency if possible. [00:23:44] Speaker 03: And that just never happened. [00:23:45] Speaker 03: And so what we have here is an attempt to reverse engineer the jury verdict and to impose on district court judges, and Chief Judge process goes to your question, to impose on district court judges a duty [00:23:57] Speaker 03: to construe claims. [00:23:59] Speaker 04: Your bottom line is that, assuming that there's out there three claim limitations that arguably should have been construed and weren't, they weren't. [00:24:11] Speaker 04: And assuming, secondly, that a jury, if properly understood what the possible interpretation of those three terms, could not have reached these inconsistent verdicts. [00:24:23] Speaker 04: I understand that to be their argument. [00:24:25] Speaker 04: Yeah, but what you're saying is, so what? [00:24:27] Speaker 04: I think that's your argument. [00:24:29] Speaker 04: He's coming in and saying, let's go back to square one. [00:24:32] Speaker 04: There are these three limitations. [00:24:33] Speaker 04: If you'd interpreted them my way, then he believes the jury couldn't have found both Invalidi and Frankfurt. [00:24:43] Speaker 04: So assuming he's right. [00:24:46] Speaker 04: And I sit down, and I agree with him. [00:24:50] Speaker 04: It's too late, is your view, right? [00:24:52] Speaker 03: That's exactly right, Your Honor. [00:24:53] Speaker 03: It's too late now to make a claim construction argument after it was never raised before the jury returned a verdict and no objection was made to the verdict at the time it was rendered. [00:25:02] Speaker 03: Moreover, we think the evidence was entirely consistent. [00:25:05] Speaker 03: There's no inconsistency on the merits. [00:25:07] Speaker 03: But from a procedural perspective, the way that the case is supposed to unfold is to raise claim construction issues before the jury is instructed. [00:25:15] Speaker 03: And if there were any inconsistency at all, and again, we don't believe there was, an objection should have been made at the time the verdict was returned. [00:25:23] Speaker 03: We also believe, and Judge Raina, you asked about this in your questions of Mr. Schaeffer. [00:25:28] Speaker 04: Your best life preserver is the Ninth Circuit rule. [00:25:33] Speaker 04: You have to remember, I mean, this court, in its wilder and crazier days, I offer you Exxon against Lubrizol, which I authored. [00:25:39] Speaker 04: We interpreted a claim fresh, we got criticized for it, on a field that never even challenged and flipped the jury. [00:25:47] Speaker 04: So it's within the range of possibility that somebody walks up to a panel of this court, and if you get the right judge, and they say, whoa, whoa, wait, those claims should have been construed. [00:25:56] Speaker 04: If they'd been construed, they would have been construed this way. [00:25:59] Speaker 04: If they'd been given to the jury that way, the jury couldn't possibly have come out with those two verdicts. [00:26:05] Speaker 03: Well, Your Honor, we would say that under the Broadcom versus Qualcomm case, now the court has made clear that if there's a dispute as to the meaning of a claim term, it should be raised before post-trial motions. [00:26:15] Speaker 03: And moreover, the concession that there's enough evidence to support the invalidity verdict is alone suffices to resolve this appeal under the Senju case, the mobile media case. [00:26:26] Speaker 00: Is it? [00:26:27] Speaker 00: I mean, that was my first question. [00:26:28] Speaker 00: If we were to agree with much of what he says, [00:26:32] Speaker 00: and is that there's no jury that could have consistently applying the same claim construction reach these two verdicts, is it your view that that doesn't matter? [00:26:44] Speaker 00: Because we can just look at the invalidity and see if there was sufficient evidence to affirm invalidity. [00:26:50] Speaker 03: It is, Your Honor. [00:26:51] Speaker 03: There's no claim construction that's been preserved for the reasons that I just described. [00:26:55] Speaker 03: And the concession that there was sufficient factual evidence to support the invalidity verdict is dispositive. [00:27:00] Speaker 03: That's the Mobile Media case. [00:27:01] Speaker 03: That's the Cengio case. [00:27:02] Speaker 03: There's no need to reach infringement for an invalid patent. [00:27:06] Speaker 03: It's invalid. [00:27:07] Speaker 03: And that court, this court I should say, in both Senju and mobile media, concluded that there is no reason to reach infringement issues in light of the holding of invalidity. [00:27:17] Speaker 03: There's a concession. [00:27:18] Speaker 04: that there's sufficient evidence. [00:27:34] Speaker 04: Well, that is unassailably correct. [00:27:36] Speaker 00: But does that deal with the issue we have here, where the other side's main argument is that there's an inconsistency in the verdict and therefore challenges the verdict on that basis? [00:27:45] Speaker 00: Those cases don't deal with this scenario, right? [00:27:48] Speaker 03: Your Honor, they wouldn't deal with that if that had been preserved as the argument below. [00:27:52] Speaker 03: If there had been a preserved argument that there was an inconsistency in the verdict, there had been an objection at that time, there had been claim construction issues raised before the verdict, [00:28:01] Speaker 03: We might be in a different place. [00:28:03] Speaker 03: But weren't a fact appeal. [00:28:04] Speaker 03: The claim construction. [00:28:05] Speaker 04: The Ninth Circuit law on preservation is your life saver. [00:28:09] Speaker 03: That's certainly one of the procedural failures. [00:28:10] Speaker 03: Didn't you just say that? [00:28:12] Speaker 03: It is one of the procedural failings, Your Honor, is the failure to object to the verdict as inconsistent at the time it was rendered. [00:28:18] Speaker 04: But you made it sound as if your adversary had preserved this by making an argument to the Senate. [00:28:22] Speaker 04: Oh, don't release the jury yet, Your Honor. [00:28:24] Speaker 04: We've got an inconsistent verdict. [00:28:26] Speaker 03: I think even then, Your Honor, we would still face [00:28:29] Speaker 04: The problem of not having- You really want to give that much up? [00:28:32] Speaker 04: I'm sorry, Your Honor? [00:28:33] Speaker 04: You want to give that much up? [00:28:35] Speaker 04: No, he doesn't. [00:28:36] Speaker 03: I don't think I do. [00:28:37] Speaker 04: You're trying to get it back, right? [00:28:38] Speaker 03: Yeah. [00:28:39] Speaker 03: Well, I'd say this, Your Honor. [00:28:40] Speaker 03: There certainly was a procedural failing in not objecting at the time of the jury verdict. [00:28:45] Speaker 03: In addition, there was a procedural failing in not raising any of these claim construction issues until after the verdict was returned. [00:28:53] Speaker 03: So we had no claim construction issues being argued before the verdict. [00:28:57] Speaker 03: We had no objection to the verdict. [00:28:59] Speaker 03: And the final point, Your Honor, is that on the merits, we're really dealing with a factual case. [00:29:04] Speaker 03: Can you line up the fact evidence on non-infringement and invalidity in a consistent way? [00:29:09] Speaker 03: And you absolutely can on all three issues. [00:29:12] Speaker 03: The first issue was in response to as a result of. [00:29:15] Speaker 03: The prior art products were products that identified vulnerabilities and offered tools or modules in response to the identification of vulnerabilities. [00:29:25] Speaker 03: We offered percipient fact testimony [00:29:27] Speaker 03: from folks who were involved with the prior art products, including a director of vice president of strategic planning at a company that developed one of the products, the product manager for another product. [00:29:38] Speaker 03: And they testified on the stand to the jury that those products offered functionality in response to the identification of vulnerabilities. [00:29:47] Speaker 03: In contrast, the accused product doesn't do that. [00:29:50] Speaker 03: It's a software updating program for consumers. [00:29:53] Speaker 03: It allows you to update your programs if a new version is made available. [00:29:56] Speaker 03: The designer of that program testified on the stand, and he testified that there was no action taken. [00:30:03] Speaker 04: He didn't even warn you that your computer is infected to beat the band unless they have something to fix it. [00:30:10] Speaker 03: Well, there's two ways in which the designer explained that it's not in response to, Your Honor. [00:30:16] Speaker 03: The first is, if there's no update available, as Your Honor's question. [00:30:20] Speaker 04: That was correct, because I thought the program did a little more than that, so I don't rely as much on it as I used to. [00:30:25] Speaker 03: Yeah, so the program will not notify users of the vulnerability if there's no update available. [00:30:30] Speaker 03: That's the first thing. [00:30:32] Speaker 03: Second thing is, if there is an update available, it always, always provides the update, even if there's no vulnerability in your current version. [00:30:39] Speaker 03: So there's no relationship between the identification of vulnerabilities and the provision of an update. [00:30:44] Speaker 03: That's the first issue. [00:30:46] Speaker 03: And we see that on that issue, there's a difference, a categorical difference between the accused product and the prior art. [00:30:51] Speaker 03: And therefore, there's no inconsistency in the jury's verdict. [00:30:54] Speaker 03: Second issue, various utility functions. [00:30:57] Speaker 03: In the prior art, there were various utility functions. [00:31:00] Speaker 03: There was a module or a toolkit of options that were made available to users. [00:31:05] Speaker 03: First-hand, Percipient witnessed testimony on that. [00:31:09] Speaker 03: As two examples, the prior art programs allowed users to fix what are called permission errors, or too many people being given permission to certain programs. [00:31:18] Speaker 03: Prior art programs also allowed you to fix ownership issues [00:31:21] Speaker 03: which is another problem that can arise with giving improper ownership over computer programs. [00:31:28] Speaker 03: That's multiple or various utility functions. [00:31:31] Speaker 03: In contrast, the accused product does one thing. [00:31:33] Speaker 03: It allows you to update your software. [00:31:35] Speaker 03: Again, there's differences between the accused products on the one hand and the prior on the other, and therefore no inconsistency. [00:31:43] Speaker 03: And the last issue, your honor, is this question of reporting the identified vulnerability. [00:31:47] Speaker 03: In the prior art, it provided very detailed reports as to the vulnerability that had been identified, file path names, detailed information that information technology professionals would understand because those programs were designed for IT professionals. [00:32:03] Speaker 03: The accused product doesn't do that. [00:32:04] Speaker 03: It provides generalized risk ratings and no identification of particular vulnerabilities. [00:32:10] Speaker 03: The point is, Your Honor, is that on each of these three issues, the factual evidence is entirely consistent. [00:32:18] Speaker 03: Or at a bare minimum, the jury was entitled to conclude it was. [00:32:22] Speaker 03: And so we have no construction being requested on these three terms, any of them. [00:32:27] Speaker 03: We have the application of those terms to fact evidence before the jury. [00:32:31] Speaker 03: We had the jury being presented with firsthand witness testimony as to the prior art, firsthand witness testimony as to the accused products, expert testimony as to both. [00:32:41] Speaker 03: And the jury was well within their discretion to conclude. [00:32:44] Speaker 03: The patent is both invalid and not infringed. [00:32:47] Speaker 03: There's no inconsistency on any of these three issues. [00:32:50] Speaker 03: And moreover, there's all the procedural problems that we began the discussion with. [00:32:55] Speaker 03: The failure to request constructions, the failure to object. [00:32:58] Speaker 03: And for all these reasons, we will request the post trial decision be affirmed. [00:33:02] Speaker 03: Thank you. [00:33:04] Speaker 02: Very quickly, Your Honors. [00:33:07] Speaker 02: The last analysis that Mr. Mueller just gave stems from the fundamental problem they have with the reinterpretation of vulnerability. [00:33:14] Speaker 02: I'll quote from their brief. [00:33:15] Speaker 02: TVIM attempts to create a distinction between vulnerabilities on the one hand and discrepancies or potential vulnerabilities on the other. [00:33:25] Speaker 02: That's what they're arguing. [00:33:27] Speaker 02: On Appendix 1454. [00:33:30] Speaker 02: Mr. Mueller made that same argument to the district court, that there's no distinction between a discrepancy and a vulnerability. [00:33:36] Speaker 02: And the court says, absolutely, there can be. [00:33:38] Speaker 02: So all the analysis he just gave you on consistency depends on a reconstruction of vulnerability. [00:33:44] Speaker 02: And then to Judge Cleveridge, your argument about the claims need to be determined my way. [00:33:49] Speaker 02: They don't need to be determined my way. [00:33:50] Speaker 02: They need to be determined anyway. [00:33:51] Speaker 02: And Mr. Mueller made an important concession. [00:33:54] Speaker 02: He said, I'm not offering any construction of these three terms. [00:33:57] Speaker 02: I'm just saying there's facts that support it. [00:33:59] Speaker 02: We have the fundamental problem that you need to have the construction. [00:34:03] Speaker 02: That's what state contracting says. [00:34:06] Speaker 02: State contracting says that when you look at a post-trial motion, you must first define what the construction you're applying and show the facts supported. [00:34:15] Speaker 02: That hasn't happened here. [00:34:16] Speaker 02: And I would finally ask the courts to look at, which I think are the two most important cases, which are Hewlett-Packard and Broadcom. [00:34:22] Speaker 02: We're not asking for a construction. [00:34:24] Speaker 02: What we're asking to do, as it happened in Hewlett-Packard, [00:34:27] Speaker 02: is you apply the facts to the construction. [00:34:30] Speaker 02: Do the facts support a construction? [00:34:32] Speaker 02: This case is unique because McAfee could have come up with any imaginable type of construction. [00:34:37] Speaker 02: And if it was consistent, it would have been fine. [00:34:39] Speaker 02: They can't without reconstituting vulnerability. [00:34:44] Speaker ?: Thank you. [00:34:44] Speaker 00: Thank you. [00:34:45] Speaker 00: I think both sides, the case is submitted.