[00:00:04] Speaker 03:
The next case is Art Plus Comm Innovation Pool, GMBH.

[00:00:11] Speaker 03:
2017-10-16, Mr. Partridge.

[00:00:18] Speaker 02:
Good morning, Your Honors.

[00:00:20] Speaker 02:
My name is Scott Partridge.

[00:00:22] Speaker 02:
I represent the appellant in this case, Art Plus Comm.

[00:00:26] Speaker 02:
And I would like, during my remarks, to particularly address two issues

[00:00:34] Speaker 02:
that I think will help narrow the sets of issues that this court needs to decide.

[00:00:40] Speaker 02:
And those two issues first are the infringement case.

[00:00:44] Speaker 02:
Obviously, I would address that.

[00:00:46] Speaker 02:
And the second is that with respect to the set of validity issues, I think it's particularly important to focus on claim three, which is a dependent claim.

[00:00:56] Speaker 02:
We are not conceding with respect to claim one, but I think the claim three issues are a little more straightforward and easier to

[00:01:04] Speaker 02:
to follow.

[00:01:05] Speaker 03:
Both issues would seem to involve F and G, right?

[00:01:09] Speaker 02:
That's correct, Your Honor.

[00:01:10] Speaker 02:
The only infringement dispute was over F and G, and in fact a lot of the priority issues concern steps F and G as well, although there are issues with respect to step B as well.

[00:01:25] Speaker 02:
This was an unusual trial.

[00:01:27] Speaker 04:
You don't seem to dispute that there was evidence regarding

[00:01:33] Speaker 04:
infringement that would oppose your evidence, that would indicate the absence of infringement, right?

[00:01:40] Speaker 02:
There was evidence with respect to what was called the deep load mode of operation of Google Earth that the defendants put on.

[00:01:52] Speaker 02:
But in our case in chief, the argument for infringement we made was with respect to the navigation mode, the so-called

[00:02:02] Speaker 02:
default mode of operation of Google Earth.

[00:02:06] Speaker 02:
Our expert testified at length with respect to the source code that was directed to that mode of operation.

[00:02:14] Speaker 02:
And frankly, Your Honor, the easiest place to look to see that in fact there are two distinct modes is to look at appendix page 4294, which contains a, it's part of a slide presentation, a Google document

[00:02:31] Speaker 02:
that this particular page identifies the two distinct modes of operation.

[00:02:36] Speaker 02:
The first, the navigation mode, which it describes as requesting coarse to fine, which Google's expert acknowledged is a short form expression of steps F and G. It describes it as fast for global coverage.

[00:02:55] Speaker 02:
And then on the same page, it identifies the deep load mode,

[00:03:00] Speaker 02:
which it describes as requesting finer levels first.

[00:03:05] Speaker 02:
It's fast for the current view with sufficient quality, but slow as to global coverage.

[00:03:11] Speaker 02:
So there are two modes of operation with respect to Google Earth.

[00:03:17] Speaker 02:
Our case in chief directed to the navigation mode.

[00:03:21] Speaker 02:
And our expert went through 30 or 40 pages worth of testimony.

[00:03:26] Speaker 02:
Please.

[00:03:26] Speaker 05:
We don't actually have the source code here.

[00:03:28] Speaker 05:
We have testimony about it.

[00:03:30] Speaker ?:
Is that right?

[00:03:31] Speaker 02:
Your Honor, there are descriptions of the source code that are included in the appendix, but you don't have the full source code.

[00:03:40] Speaker 02:
Well, not the full, but the relevant.

[00:03:42] Speaker 02:
The relevant portions of the source code, that's correct.

[00:03:44] Speaker 02:
There was an agreement between the parties as to how to manage the source code, given that it was a public forum and we tried our best to enable the public to be present during the trial.

[00:03:55] Speaker 02:
So the source code itself was before

[00:03:58] Speaker 02:
the jury, but there was a mechanism that was adopted that the parties agreed to and the court agreed to for managing the code.

[00:04:06] Speaker 05:
So did, was it Mr. Dr. Goodchild?

[00:04:11] Speaker 05:
Dr. Goodchild, yes.

[00:04:12] Speaker 05:
And then their corporate witness name was Mr. Birch.

[00:04:16] Speaker 05:
Mr. Birch.

[00:04:17] Speaker 05:
Didn't they actually say, among them anything they said, we just don't

[00:04:27] Speaker 05:
Now, you may disagree, but didn't they say that?

[00:04:30] Speaker 05:
And maybe that implies something to the effect that even their presentation about, that is the 4294 that you were just saying, that they're just saying, that's just wrong.

[00:04:45] Speaker 02:
How are we supposed to decide?

[00:04:47] Speaker 02:
Actually, I think if you look at the testimony of Dr. Goodchild at page 1368 of the appendix,

[00:04:55] Speaker 02:
He agreed in looking at the source code on cross-examination that the source code in fact described this coarse-define operation and that the default mode when set to zero was that mechanism, that way of operation.

[00:05:12] Speaker 02:
And then when we asked him if he had considered the code with respect to that default mode of operation, he said the code was complex and that he couldn't answer questions with respect to it.

[00:05:26] Speaker 02:
So I think the testimony that was before the court below and before you in this appeal is about an extensive amount of source code that was written to be this navigation mode of operation.

[00:05:43] Speaker 02:
And indeed, there is testimony by... Say again, please?

[00:05:48] Speaker 04:
I'm sorry, you said the testimony is at 1369?

[00:05:52] Speaker 02:
Appendix 1368, did I say 69?

[00:05:56] Speaker 02:
I thought you did, but okay.

[00:05:59] Speaker 02:
That's where Dr. Goodchild was cross-examined about the source code that Dr. Castleman, our witness, had testified about.

[00:06:08] Speaker 05:
Right, and there it says the default, you're now asking Goodchild about the source code.

[00:06:14] Speaker 05:
There it says the default is zero, which is of course defined, yes.

[00:06:17] Speaker 05:
And I believe we've established that course defined is our shorthand for step F, yes.

[00:06:22] Speaker 05:
So that the default operation of these products, now you're moving from what the source code says to the default operation, actually how things operate, that they are going to do unless something else happens is going to be course defined.

[00:06:35] Speaker 05:
Answer, I have no basis to answer your question.

[00:06:38] Speaker 05:
I would need to consider this in great detail.

[00:06:40] Speaker 05:
So one might call that, well, whatever one might call that.

[00:06:46] Speaker 05:
He answered a couple of questions about what the source code says, and then he says,

[00:06:52] Speaker 05:
What happens in practice, I just can't tell you.

[00:06:54] Speaker 05:
But elsewhere, like on 1244, it says, Google Earth does not request or represent each of the smaller sections and therefore does not infringe claim one.

[00:07:06] Speaker 05:
That sounds rather categorical.

[00:07:08] Speaker 02:
With respect to the deep load mode of operation, that's what he was testifying about.

[00:07:17] Speaker 02:
All the testimony of Mr. Birch and

[00:07:21] Speaker 02:
Dr. Goodchild was about that mode of operation.

[00:07:24] Speaker 04:
They actually... He didn't differentiate and say that it only occurs in the deep mode.

[00:07:30] Speaker 02:
They simply ignored, in their case in chief, the operation in the navigation mode, which clearly, and certainly you can see it in the document that I just cited to you, which is a description by Google

[00:07:51] Speaker 02:
of the operation of Google Earth, that entire document talks about the different modes of operation and how Google Earth operates.

[00:07:59] Speaker 04:
And this was one of those unique circumstances that I have never seen before where the... It describes the course to find on that document that you showed us as part of the navigation mode, right?

[00:08:11] Speaker 02:
Yes.

[00:08:13] Speaker 02:
If you look at page 4294, the first bullet point, request course to find.

[00:08:20] Speaker 02:
which Dr. Goodchild acknowledged was the short form for steps F and G of the patent.

[00:08:30] Speaker 05:
So what we had in the trial of this case was the plaintiffs putting on a case in chief with respect to... Why aren't there questions and answers here, or maybe with or maybe without, excerpts of depositions in which Dr. Goodchild is asked?

[00:08:49] Speaker 05:
does Google Earth ever operate in navigation mode?

[00:08:54] Speaker 05:
An answer, yes.

[00:08:58] Speaker 05:
The trouble is that that sort of thing seems to be missing.

[00:09:01] Speaker 05:
You're putting together what your expert said based on a presentation about the source code apparently agreed about what the source code actually says with an argument about the characterization of

[00:09:19] Speaker 05:
some seemingly broad language from Dr. Goodchild that's not limited to the sometime use, but is declarative of what Google Earth does and asking us to say, that really only meant what it does sometimes.

[00:09:35] Speaker 05:
And they were always very, very coy about using language that masked sometimes, always, never.

[00:09:45] Speaker 05:
But we don't have something that specifically tells us

[00:09:49] Speaker 05:
the facially broad language doesn't actually mean what it says.

[00:09:54] Speaker 02:
Well, you do have the testimony of Dr. Castleman about how it operates, which is in considerable detail about how the system operates, not only on the basis of looking at the source code, but his actual operation of Google Earth himself and his various testing of the operation of Google Earth.

[00:10:16] Speaker 02:
We do have some testimony from

[00:10:18] Speaker 02:
Mr. Parker, which begins at page 483 of the appendix that is about the way Google Earth operates.

[00:10:26] Speaker 02:
And we also have a video that was introduced into the record, which is exhibit appendix page 4588, which is PTX 0142, which is a

[00:10:45] Speaker 02:
presentation that Google made at a SIGGRAPH conference in 2014, I believe, and the video describes the operation of Google Earth, including the fact that there are these modes of operation.

[00:10:59] Speaker 02:
So I think there is evidence in the record of that sort with respect to specifically asking questions of Dr. Goodchild at trial.

[00:11:09] Speaker 02:
Frankly, we were surprised that our case in chief goes in and it

[00:11:15] Speaker 02:
presents this case.

[00:11:17] Speaker 02:
And they present, in their case in chief, a non-infringement defense to another mode of operation that wasn't put at issue in the case.

[00:11:26] Speaker 02:
And that our position was that we've proven infringement as to the basic mode of operation, which this video describes as occurring 90% of the time and only 10% in the other mode.

[00:11:41] Speaker 02:
Sure.

[00:11:42] Speaker 05:
Did you lose on the silicon graphics

[00:11:45] Speaker 05:
anticipation, none of what we've just been discussing matters, right?

[00:11:49] Speaker 02:
If we were to lose on whether or not the SRI Terravision public use anticipates, yes, you're correct.

[00:11:57] Speaker 02:
With respect to that, this is why I wanted to turn to claim three first, because I think the issue is really easy with respect to claim three.

[00:12:06] Speaker 02:
The argument that was made was twofold at trial.

[00:12:10] Speaker 02:
They took the public use and then they referred to

[00:12:14] Speaker 02:
documents that were not about the alleged public uses.

[00:12:18] Speaker 05:
Forget those documents and focus only for one minute on the they gave you the source code.

[00:12:23] Speaker 05:
Why isn't that like giving the woman the corset?

[00:12:27] Speaker 02:
Well, in the case of they gave us the source code at the SIGGRAPH 1995 conference, again, it's the testimony of Mr. Lau that he did this.

[00:12:39] Speaker 02:
This was at a conference where we were also demonstrating our system.

[00:12:44] Speaker 02:
It is not corroborated by any other witness.

[00:12:48] Speaker 02:
And in fact, the entire validity case is a house of cards that relies on a statement that Dr. Lau made that the features that were shown in all these documents, the video that was made, which was not a video of either of these public uses, it was made for the purpose of showing it in the event they couldn't do a demonstration.

[00:13:11] Speaker 04:
Doesn't the fact that they made the video in anticipation of doing this show, corroborate his testimony with respect to at least what his intended demonstration was?

[00:13:21] Speaker 02:
There's no testimony about how the video was actually made and what it actually showed.

[00:13:27] Speaker 02:
And the fact of the matter here is that this method requires one in order to meet the method to go fetch request data from remote servers

[00:13:40] Speaker 02:
based on a movement by the user to different fields of use, one could prepare a video with everything preloaded in the computer.

[00:13:51] Speaker 02:
And in fact, these documents repeatedly talk about prefetched and preloaded.

[00:13:56] Speaker 02:
So there's no way to know whether that video was... Yes, that would be wise, Your Honor.

[00:14:03] Speaker 03:
Thank you.

[00:14:13] Speaker 01:
Good morning, and may it please the court.

[00:14:16] Speaker 01:
The jury's verdict rests, as the court knows, on several different bases, each of which could independently warrant affirmance, and each of which turns on disputed questions of fact.

[00:14:27] Speaker 01:
Starting with invalidity, there are two key overarching points applicable to both references.

[00:14:33] Speaker 01:
First, Google's expert testified on an element-by-element basis, identifying the parts of disclosures he relied on and how a person of ordinary skill in the art would understand them.

[00:14:42] Speaker 01:
That's substantial evidence.

[00:14:44] Speaker 01:
And second, there was zero rebuttal case in invalidity.

[00:14:47] Speaker 01:
Nothing.

[00:14:48] Speaker 01:
Instead, they just, as we were sort of just hearing a credibility attack on Mr. Lau, they just cross-examined Google's witnesses, which created at most a credibility issue that falls within the exclusive province of the jury.

[00:15:00] Speaker 04:
Do you see any distinction between the validity arguments with respect to claim one and the validity arguments with respect to claim three?

[00:15:08] Speaker 01:
So for claim three, the difference is that there is this extra element of coordinate transformation.

[00:15:14] Speaker 01:
With respect to Terravision, Lau testified, and this is on page 1174.

[00:15:22] Speaker 05:
Is this the siliconographic?

[00:15:24] Speaker 01:
Yes, the SRI.

[00:15:24] Speaker 01:
Yeah, exactly.

[00:15:26] Speaker 01:
SRI Terravision.

[00:15:27] Speaker 01:
He testified on page 1174.

[00:15:29] Speaker 01:
Remember, he is the creator of this.

[00:15:32] Speaker 01:
He testified, and he was talking about what was being shown in the video.

[00:15:36] Speaker 01:
He testified that it would do this coordinate transformation when the viewer moved from one spot to another.

[00:15:44] Speaker 05:
We're on 1173.

[00:15:45] Speaker 05:
Sorry, just help me.

[00:15:53] Speaker 05:
At the very top.

[00:15:55] Speaker 05:
Sorry.

[00:15:56] Speaker 04:
Yes, it actually begins on 1173.

[00:15:58] Speaker 04:
Right, 1173.

[00:16:03] Speaker 01:
Yeah, it's the bottom of line 22.

[00:16:06] Speaker 01:
1173, yeah, we used various coordinate transformers within TerraVision.

[00:16:11] Speaker 01:
And then he goes on to explain how it was used, what it was done.

[00:16:16] Speaker 05:
And the first thing is the three to two dimensional, but then he says another one is essentially bringing the origin closer so you can save a lot of digits.

[00:16:28] Speaker 01:
Right.

[00:16:29] Speaker 01:
There are a couple different things it did.

[00:16:30] Speaker 01:
Our point is just that it did this.

[00:16:32] Speaker 01:
And as long as it did this for anticipation, it doesn't matter if it also did other things.

[00:16:35] Speaker 01:
So these text coordinate transformation right there.

[00:16:41] Speaker 04:
You agree that the video was never shown at any of these presentations?

[00:16:45] Speaker 01:
No, that's false.

[00:16:46] Speaker 01:
He testified.

[00:16:47] Speaker 01:
Mr. Lau testified.

[00:16:48] Speaker 01:
By the way, the jury saw the video too.

[00:16:50] Speaker 01:
It's in the record.

[00:16:51] Speaker 01:
We'd encourage you to watch it.

[00:16:52] Speaker 01:
It's informative.

[00:16:53] Speaker 01:
Mr. Lau testified that as part of his public demonstrations, he demonstrated the video.

[00:17:05] Speaker 01:
He did two things.

[00:17:07] Speaker 01:
He did live demonstrations.

[00:17:09] Speaker 01:
So that when he was out there at the 95 SIGGRAPH, he did two things.

[00:17:12] Speaker 01:
He did a live demonstration that actually pulled data from the various sources live so you could see it.

[00:17:18] Speaker 01:
But then he also had this video, he said, running in the background with the audio.

[00:17:22] Speaker 01:
The thing is, though, I mean, one that was made before is correct.

[00:17:25] Speaker 01:
The most important thing is that he's the person behind SRI television.

[00:17:30] Speaker 01:
He testified that he publicly demonstrated it at these two conferences.

[00:17:33] Speaker 01:
And then the question is, OK, exactly what did you publicly demonstrate?

[00:17:36] Speaker 01:
And he testified spot on that the teravision that he demonstrated had the same features as, not surprisingly, the teravision.

[00:17:44] Speaker 05:
Show me exactly where he said that.

[00:17:46] Speaker 05:
At least some.

[00:17:47] Speaker 05:
And I'm not sure.

[00:17:48] Speaker 05:
I guess my question is all of what he said.

[00:17:51] Speaker 05:
I guess I think of it in a Venn diagram way.

[00:17:57] Speaker 05:
I thought that a good deal of what he said, and maybe all, was everything I showed was in those documents.

[00:18:04] Speaker 05:
That doesn't mean everything in those documents was in what I showed.

[00:18:08] Speaker 01:
Understood.

[00:18:08] Speaker 05:
Well, let's start at 1175.

[00:18:09] Speaker 05:
The everything here is, of course, the stuff relevant to the claim.

[00:18:12] Speaker 01:
I understand.

[00:18:12] Speaker 01:
And so I'm going to call your attention to pages 1175 to 77.

[00:18:19] Speaker 01:
Just to look back to something else, 1175, line 17,

[00:18:22] Speaker 01:
Yes, I did live demonstrations of TerraVision in operation on the exhibit floor, retrieving data from across the network, and also showed the video that you saw in a loop on the TV screen.

[00:18:32] Speaker 01:
That's where he says he showed the video as well as did the live demonstrations that pulled data from different sources.

[00:18:37] Speaker 01:
Then we're over on 1176, starting on line 16.

[00:18:42] Speaker 01:
How did that, this is the 95 SIGGRAPH, how did that demonstration of the TerraVision system compare to the features that were shown in the video?

[00:18:49] Speaker 01:
Answers, they're the same features that were shown on the video

[00:18:52] Speaker 01:
with Terravision, and then again, that's the video, and then the documents.

[00:18:56] Speaker 01:
And how do the features of the version of Terravision that you've demonstrated compared to the features described in the documents that we walked through answer, top of 1177, the features of Terravision that was demonstrated at SIGGRAPH 95 were the same that was in the papers that have been published to date, including the ones we have talked about.

[00:19:15] Speaker 01:
And that makes sense, because it's SRI Terravision.

[00:19:17] Speaker 01:
It's a product that he created.

[00:19:19] Speaker 01:
He showed it some places.

[00:19:20] Speaker 01:
He wrote papers about it.

[00:19:21] Speaker 01:
He did a video about it.

[00:19:22] Speaker 01:
It's the same product.

[00:19:23] Speaker 01:
But this is the spot on testimony, where they're just flat out attacking his credibility, which is a question that's reserved exclusively for the jury.

[00:19:33] Speaker 01:
For what it's worth, the district court and post-trial decisions also emphasize that he thought that Mr. Lau testified very credibly and forthright.

[00:19:41] Speaker 05:
So I'm not sure whether this testimony actually is the insufficient thing or the sufficient thing.

[00:19:47] Speaker 05:
I can easily read this testimony, and maybe that's not enough, but I can easily read this testimony to mean everything in the video was in the documents.

[00:19:57] Speaker 05:
But that doesn't mean everything relevant in the documents was in the video.

[00:20:03] Speaker 01:
Well, I think when he says the features of, well, and then also with the documents, he says the features of television that was demonstrated were the same that had been in the papers published to date.

[00:20:14] Speaker 01:
He's saying the features here were the same as the features there.

[00:20:17] Speaker 01:
And the jury, I think, at least it's a very reasonable inference to the jury, that that means that the features in the papers are the ones that was demonstrated, especially since it is the same product that he had developed.

[00:20:28] Speaker 01:
He says the same.

[00:20:30] Speaker 04:
Can we switch to infringement for a minute?

[00:20:33] Speaker 01:
Of course.

[00:20:34] Speaker 04:
With respect to the infringement, you heard the argument that the whole case in chief was about how Google infringes.

[00:20:44] Speaker 04:
of the navigation mode and that all of your testimony was in the alternative mode.

[00:20:50] Speaker 04:
Do you agree with that?

[00:20:52] Speaker 01:
No.

[00:20:52] Speaker 01:
I mean, what you're hearing is a jury argument that was not made to the jury.

[00:20:56] Speaker 01:
There's one sort of both problems with it.

[00:20:58] Speaker 01:
Which is to say, Google's witness has testified categorically that Google always skips nodes.

[00:21:06] Speaker 01:
There wasn't a trial.

[00:21:08] Speaker 05:
Where's the best version of that?

[00:21:10] Speaker 05:
Is that partly what I was

[00:21:12] Speaker 05:
Well, you tell me what to say.

[00:21:14] Speaker 01:
Sure.

[00:21:14] Speaker 01:
I mean, for Birch, they say that Birch hedged.

[00:21:19] Speaker 01:
So I'd point you to a couple places.

[00:21:21] Speaker 01:
Appendix page 1046.

[00:21:22] Speaker 01:
Quote.

[00:21:24] Speaker 01:
Sorry, I'll get it.

[00:21:25] Speaker 01:
Quote.

[00:21:26] Speaker 01:
Are all the Traverse No's requested?

[00:21:28] Speaker 01:
No.

[00:21:29] Speaker 01:
There's no hedging there.

[00:21:30] Speaker 05:
Right, but is that in the context of a series of questions only about the

[00:21:34] Speaker 05:
What's the non-navigation mode called?

[00:21:37] Speaker 05:
Something with the word mode in it?

[00:21:38] Speaker 01:
No.

[00:21:38] Speaker 01:
You see, this testimony is not at all about one mode or another.

[00:21:41] Speaker 01:
It's just about the operation of Google Earth.

[00:21:43] Speaker 01:
This mode theory is mostly something, mostly a jury argument developed on appeal is the problem.

[00:21:48] Speaker 01:
It wasn't.

[00:21:49] Speaker 04:
Are there different modes?

[00:21:52] Speaker 01:
Wait.

[00:21:52] Speaker 01:
We're outside of the record now.

[00:21:57] Speaker 05:
He showed us that.

[00:21:58] Speaker 01:
OK.

[00:21:58] Speaker 01:
So here's what?

[00:22:02] Speaker 01:
Right.

[00:22:02] Speaker 01:
So what is in the record?

[00:22:03] Speaker 01:
You're right.

[00:22:04] Speaker 01:
What's in the record is just these few slides.

[00:22:06] Speaker 01:
I was about to try to actually answer your question.

[00:22:09] Speaker 01:
I was going to go out of it.

[00:22:09] Speaker 04:
So there are two modes.

[00:22:10] Speaker 01:
For the globe product, these slides indicate that there are two modes, navigation and deep load.

[00:22:18] Speaker 01:
There are arguments that coarse-to-fine necessarily means performing steps A through G of the claims method.

[00:22:25] Speaker 01:
These slides, and this is page 4291, actually refute that.

[00:22:31] Speaker 01:
because they describe coarse-defined as starting from nodes that just exceed a quarter of a quality.

[00:22:35] Speaker 01:
So coarse-defined being over the bottom.

[00:22:36] Speaker 04:
But does it operate differently depending on what mode it's in, in terms of, for instance, the number of times that it skips nodes?

[00:22:48] Speaker 01:
Right.

[00:22:48] Speaker 01:
Well, this is the... And first, of course, so long as it skips... Two things.

[00:22:53] Speaker 01:
This is where I got to... This is the first question.

[00:22:55] Speaker 01:
Right.

[00:22:55] Speaker 01:
And the problem is, this is where, in terms of how it all works, it's just all we have in this record is, you know, these couple slides.

[00:23:01] Speaker 04:
But what the answer is, is that... That's part of their problem, is they say that you didn't put it into the record.

[00:23:08] Speaker 04:
So, and that they focused on one mode of operation.

[00:23:15] Speaker 01:
Right.

[00:23:15] Speaker 04:
You never responded to that mode of operation.

[00:23:18] Speaker 04:
And you're doing the same thing now.

[00:23:20] Speaker 01:
So... That's wrong in two respects.

[00:23:22] Speaker 01:
First, they brought the burden of proof on non-infringement, of course.

[00:23:24] Speaker 04:
And the testimony, if they wanted to... We're supposed to decide if there was enough evidence to support the jury verdict.

[00:23:30] Speaker 01:
Right, and the jury verdict is the categorical testimony of Google's witnesses that is just categorical across the board.

[00:23:35] Speaker 01:
They now want to say it was limited to something, where one, on its face it wasn't, and two, they never cross-examined the witnesses on this.

[00:23:41] Speaker 01:
If they thought that the witnesses were trying to be coy, they could have asked them about it.

[00:23:45] Speaker 01:
They didn't.

[00:23:45] Speaker 01:
The jury was entitled to conclude that the testimony was what it was.

[00:23:49] Speaker 01:
But to answer the question, the Globe product, the problems are just outside of the record here, but the Globe product

[00:23:55] Speaker 01:
can switch between two different modes, but it'll run them both on the same screen at the same time.

[00:24:00] Speaker 01:
The way it works is you start in deep load.

[00:24:02] Speaker 01:
Navigation is when you're zooming or either zooming or moving around.

[00:24:07] Speaker 01:
So as the user starts to move around, the new screen will entail some data that was already there and some new data.

[00:24:14] Speaker 01:
For example, if I move, part of what I already saw, part of the new.

[00:24:17] Speaker 01:
When I move, the part that I've already been seeing, that remains in the deep load.

[00:24:20] Speaker 01:
The new part is in navigation, which

[00:24:23] Speaker 01:
may, at least for time, work in a more likely patented method, at least.

[00:24:27] Speaker 01:
The problem is, this isn't the case they put on a trial.

[00:24:30] Speaker 01:
And therefore, what I just said is not in the record.

[00:24:32] Speaker 01:
But that's my answer to you.

[00:24:33] Speaker 01:
The other thing about the video was never shown to the jury.

[00:24:36] Speaker 01:
This whole thing about 10 versus 90%, never shown to the jury.

[00:24:41] Speaker 01:
And the way the video got in at all was that they read some deposition testimony of one of Google's engineers.

[00:24:48] Speaker 01:
And that referenced the video.

[00:24:50] Speaker 01:
So then they moved the admission of the video.

[00:24:51] Speaker 01:
Fine, it goes in.

[00:24:52] Speaker 01:
But the jury never heard anything in the video.

[00:24:55] Speaker 04:
And the only deposition testimony that's relevant to this issue was the engineer testifying that there were- You say the jury never heard anything relevant to the video, but the video was admitted, so it went back to the jury room for the jury to view?

[00:25:08] Speaker 01:
In theory, it could have.

[00:25:09] Speaker 04:
Although- In theory, it could have.

[00:25:11] Speaker 04:
It was either admitted or it wasn't.

[00:25:13] Speaker 01:
It was admitted.

[00:25:13] Speaker 04:
It was admitted.

[00:25:14] Speaker 04:
All evidence goes back to the jury, right?

[00:25:16] Speaker 01:
It was admitted.

[00:25:16] Speaker 01:
But I mean, two things about that.

[00:25:18] Speaker 01:
One is, I mean, yes, but.

[00:25:20] Speaker 01:
One is, if something is just lurking there, never called to the jury's attention, no reason to think they'd ever see it.

[00:25:26] Speaker 01:
I mean, this court has held.

[00:25:27] Speaker 01:
You can't assail a jury that way.

[00:25:29] Speaker 01:
This court's case on point.

[00:25:31] Speaker 04:
Everything that goes into the jury, trust me, the jury has the opportunity to review all of the evidence.

[00:25:36] Speaker 04:
So we have to see what evidence the jury had before them.

[00:25:41] Speaker 04:
Had it before them.

[00:25:42] Speaker 04:
We can't decide what they looked at and what they didn't look at.

[00:25:44] Speaker 01:
Agreed.

[00:25:44] Speaker 01:
We don't know.

[00:25:45] Speaker 01:
But what this court has held, and this is the Fresenius against Baxter from 2009,

[00:25:50] Speaker 01:
582 F3rd at page 1300, is that on appeal from a jury verdict, if you want to align evidence, you have to have called the jury's attention to it.

[00:25:59] Speaker 01:
If you've got something that's buried somewhere, you can't suddenly pull that out as a gotcha on appeal.

[00:26:04] Speaker 01:
But the other point is that the testimony about the video and the couple slides that accompanied it from the Google engineer is that there were, quote, many significant differences between that high-level presentation and the way the source code actually worked.

[00:26:16] Speaker 01:
So the only evidence about the video and the slides is that they're not reliable.

[00:26:19] Speaker 01:
in this sense, because they were high-level, oversimplified presentations.

[00:26:23] Speaker 04:
But do you agree that the video shows that the Google Earth products only skip nodes a small percentage of the time?

[00:26:33] Speaker 01:
No, not at all.

[00:26:34] Speaker 01:
The problem is they're talking about different things.

[00:26:37] Speaker 01:
And Judge Dyck dealt with this in his post-trial opinion.

[00:26:41] Speaker 01:
I think it's footnote four.

[00:26:42] Speaker 01:
I mean, yeah, appendix page 6354 to 55, footnote four, we agree.

[00:26:47] Speaker 01:
all kinds of problems with it.

[00:26:48] Speaker 01:
But one of them is that testimony is that that video the jury didn't, wasn't shown.

[00:26:53] Speaker 01:
And a couple out of context slides, I mean, are not even, the only evidence is that they're not accurate and reliable.

[00:26:59] Speaker 04:
I don't buy the argument that the jury wasn't shown the video if the video was introduced into evidence that the jury had it before them.

[00:27:05] Speaker 04:
So tell me that the video, tell me whether the video shows that it only skipped nodes, skips nodes a small percentage of the time.

[00:27:14] Speaker 01:
No, there's a reading in which you could say that there's two different modes.

[00:27:18] Speaker 01:
One of them is 90 percent, the other is 10 percent.

[00:27:19] Speaker 04:
But the key point, again... And is the one that's 10 percent the navigation mode?

[00:27:25] Speaker 01:
I think it was the other one around.

[00:27:26] Speaker 01:
But the point is, though, that they... What you're talking about there, though, again, and this is the context, if any of this has been presented at trial, right, there'd be more of it.

[00:27:33] Speaker 04:
It was presented at trial, okay?

[00:27:35] Speaker 04:
Assume it's presented at trial.

[00:27:38] Speaker 04:
They had a witness that got it introduced.

[00:27:41] Speaker 04:
It's presented at trial.

[00:27:42] Speaker 01:
OK.

[00:27:42] Speaker 01:
And the evidence that the jury did hear was that it's not reliable.

[00:27:45] Speaker 01:
The Google engineer said it's an oversimplification because it's a high level generalization.

[00:27:49] Speaker 01:
And therefore, there are many significant differences between that and the actual operation.

[00:27:52] Speaker 01:
That's the evidence.

[00:27:53] Speaker 01:
That is the evidence that you have questionably heard.

[00:27:57] Speaker 04:
Is there any evidence that differentiates between the two modes of operation from Google's perspective?

[00:28:04] Speaker 01:
Differentiates between the two?

[00:28:06] Speaker 04:
Yeah, in terms of how they operate.

[00:28:07] Speaker 01:
Well, what they put in was, in addition to that video, there's a few pages of slides that we're talking about that indicate there are the two different modes.

[00:28:21] Speaker 01:
Again, those slides also, in one instance, talk about coarse-defined meaning, pulling only the bottom.

[00:28:26] Speaker 04:
So did anybody from Google testify as to how the two modes operate or respond to the plaintiff's argument that

[00:28:37] Speaker 04:
they operate differently?

[00:28:39] Speaker 01:
No, because, I mean, again, this really wasn't an argument that was made at trial.

[00:28:43] Speaker 01:
What you do, what the jury did hear from Google, so I said it's a jury argument that for the most part wasn't made at the jury.

[00:28:49] Speaker 01:
What the jury did hear here was Google's categorical testimony from two different witnesses that this is how it works.

[00:28:55] Speaker 01:
Also, in terms of what Dr. Castleman, their expert, admitted that he had not analyzed whether or not it was from skip.

[00:29:02] Speaker 01:
There's another rather important point.

[00:29:04] Speaker 01:
I mean, he testified a lot about the code.

[00:29:06] Speaker 01:
But his testimony about the code went to the dividing and storing.

[00:29:10] Speaker 01:
When it comes to actual node skipping, he admitted on CROSS he hadn't analyzed node skipping.

[00:29:15] Speaker 01:
And then when he was up on redirect, the only testimony that he gave was that he thought that Google Earth just looked too smooth to skip nodes, which Google's witness is also controverted.

[00:29:27] Speaker 01:
I'm out of time.

[00:29:27] Speaker 01:
If there are no more questions.

[00:29:29] Speaker 03:
Thank you, Mr. Joseph.

[00:29:31] Speaker 03:
Mr. Potridge has some rebuttal time, a minute and 16 seconds.

[00:29:36] Speaker 02:
Yes, I will speak quickly.

[00:29:38] Speaker 02:
The reason Dr. Castleman didn't address the other mode was because we already proved infringement through the default navigation mode.

[00:29:52] Speaker 02:
So yes, he answered a question that I haven't looked at the source code for the other mode of operation because my testimony is about the navigation mode of operation.

[00:30:01] Speaker 04:
Very important point that... If Google's witnesses say, across the board, we don't skip nodes.

[00:30:06] Speaker 04:
even if you thought they were playing games, why didn't you cross examine them and say, in what mode?

[00:30:14] Speaker 02:
Actually, Google's witnesses never said, even in the deep load mode, that they always skip nodes.

[00:30:22] Speaker 02:
If you look at the testimony of Mr. Birch on appendix 1047, he said, some child modes are displayed before parent nodes.

[00:30:35] Speaker 02:
child nodes potentially could be fetched ahead and potentially could be displayed ahead of the parent nodes.

[00:30:46] Speaker 02:
So the testimony they're relying upon doesn't even say this always happens in this fashion.

[00:30:51] Speaker 02:
I only have a few seconds.

[00:30:53] Speaker 02:
I must say that with respect to Lau's testimony about the latitude and longitude,

[00:31:00] Speaker 02:
They continued working on SRI television long after the critical date.

[00:31:06] Speaker 02:
Fatal to this claim is that there is no testimony as to when that happened, let alone the fact that it is totally uncorroborated, not in any of the documents that aren't even about the demonstrations.

[00:31:19] Speaker 02:
But those documents, even if you considered them to be about, to be corroborative documents, say nothing about this mode of operation.

[00:31:28] Speaker 02:
There is no invalidity case that stands the scrutiny of the law adopted by this court with respect to claim three.

[00:31:38] Speaker 02:
Thank you, Your Honor.

[00:31:39] Speaker 03:
Thank you, Mr. Poppins.

[00:31:41] Speaker 03:
We'll take the case under advisement.

[00:31:44] Speaker 00:
All rise.