[00:00:00] Speaker 03:
Smith's case for argument is 171188, flexus spine versus globus medical.

[00:00:54] Speaker 03:
Good morning.

[00:00:55] Speaker 03:
Help me pronounce your name.

[00:00:56] Speaker 04:
Arun Subramanian.

[00:00:58] Speaker 03:
Good morning.

[00:00:59] Speaker 04:
Please proceed.

[00:00:59] Speaker 04:
Thank you.

[00:01:00] Speaker 04:
Good morning, and may it please the Court.

[00:01:02] Speaker 04:
Arun Subramanian from Sussman Godfrey on behalf of the appellant and counterappellee, Globus Medical.

[00:01:10] Speaker 04:
This is a case where a jury sitting in the Eastern District of Texas, after hearing all the evidence in the record concerning the invalidity of Flexie's fines patents, properly reached that issue

[00:01:23] Speaker 03:
After having been told that if they find no infringement, they should not go on to the issue of validity, correct?

[00:01:30] Speaker 04:
Certainly.

[00:01:30] Speaker 04:
We don't disagree that the verdict form included a stop instruction after the infringement questions.

[00:01:37] Speaker 04:
But the oral instructions that the judge delivered before trial and after trial did not have that stop instruction.

[00:01:45] Speaker 01:
How much of your argument depends on the oral instructions?

[00:01:50] Speaker 01:
Let's take that out of the picture and say,

[00:01:53] Speaker 01:
that the oral instruction said the same thing as the verdict form in exactly the same language.

[00:02:01] Speaker 01:
Would you have an argument here then?

[00:02:04] Speaker 04:
Well, that's obviously not the case that we have here.

[00:02:06] Speaker 04:
I think it would be a closer issue.

[00:02:08] Speaker 04:
But I still think in that context that the Seventh Amendment, because of its very strict rules concerning waiver, would compel a decision on our favor.

[00:02:19] Speaker 04:
And here's why.

[00:02:19] Speaker 04:
This is not the normal case where a claim is submitted

[00:02:23] Speaker 04:
And there is a withdrawal of that claim or a formal withdrawal of a jury demand, for instance, under Rule 39.

[00:02:30] Speaker 04:
There's no dispute here that none of that occurred, right?

[00:02:33] Speaker 04:
There was never a discussion, even during the charge conference, even during the conference where the verdict form was considered, where there was any suggestion that Globus was somehow withdrawing its invalidity counterclaim

[00:02:47] Speaker 04:
from the jury.

[00:02:48] Speaker 04:
That just wasn't done.

[00:02:49] Speaker 03:
It was not discussed.

[00:02:50] Speaker 03:
But they were shown the verdict form, asked repeatedly whether they object or whether they were okay with it, and they said nothing.

[00:02:58] Speaker 03:
We can use whatever words we want, whether it's waiver or objection or whatever.

[00:03:04] Speaker 03:
It all amounts, in my view, to the same thing.

[00:03:06] Speaker 03:
They had an opportunity to object, and they didn't, and therefore they agreed.

[00:03:12] Speaker 04:
Well, absolutely.

[00:03:14] Speaker 04:
I'm not going to stand here and say that we objected to that stop instruction in the verdict form.

[00:03:19] Speaker 04:
By the same token, Flexus Find certainly didn't object to the oral instructions, which went back with the jury as well, and repeatedly told the jury, you must answer the question on invalidity.

[00:03:30] Speaker 01:
These are separate.

[00:03:32] Speaker 01:
That's why I want to put aside the role.

[00:03:35] Speaker 01:
Sure.

[00:03:35] Speaker 01:
I have a very hard time.

[00:03:37] Speaker 01:
if the oral instructions were consistent with the verdict form and said the same thing, that your failure to object wouldn't be a waiver of having the counterclaim presented to the jury.

[00:03:50] Speaker 01:
I mean, suppose you'd agreed, okay, we agree, instead of failing to object, we agreed with the verdict form and the instructions.

[00:03:58] Speaker 04:
You lose?

[00:03:59] Speaker 04:
No, are you in your assumption, are you assuming that the oral instructions are different?

[00:04:04] Speaker 04:
No, no, they're the same.

[00:04:06] Speaker 04:
Right, that they say the same thing as the verdict form.

[00:04:08] Speaker 01:
Yeah, and you said, we're OK with the instructions, we're OK with the verdict form.

[00:04:12] Speaker 01:
You lose, right?

[00:04:13] Speaker 04:
Well, at a certain point that you can waive your Seventh Amendment rights, in that context, it sounds closer to a clear and unmistakable waiver, which is what the cases under the Seventh Amendment require.

[00:04:25] Speaker 04:
But that's not what happened here.

[00:04:27] Speaker 04:
And just to take a step back, so before the jury returns with the verdict, we have

[00:04:33] Speaker 04:
at worst for us, an ambiguity in the instructions that were delivered to the jury, because the oral instructions were very clear, you must answer this question, and sure, there was the stop instruction that was in the verdict form.

[00:04:44] Speaker 04:
Now, remember what happens.

[00:04:45] Speaker 04:
The jury resolves that ambiguity in our favor.

[00:04:50] Speaker 04:
At that point, the Seventh Amendment required the district court to accept the jury's verdict.

[00:04:54] Speaker 04:
The district court does something different.

[00:04:56] Speaker 04:
Without giving counsel an opportunity to discuss the issue, without giving counsel an opportunity to object

[00:05:03] Speaker 04:
which is the opposite of what usually happens when the jury comes back with a note or with anything else where there needs to be a discussion, the judge orders the jury to erase its answers to the invalidity question.

[00:05:15] Speaker 04:
I've not seen this happen anywhere in American jurisprudence.

[00:05:18] Speaker 04:
FlexiSpine hasn't cited to a case.

[00:05:20] Speaker 04:
The district court didn't refer to a case.

[00:05:22] Speaker 04:
We couldn't find one because it is unprecedented under the Seventh Amendment.

[00:05:26] Speaker 04:
And in fact, the district court on Appendix Page 8 actually cites

[00:05:31] Speaker 01:
Well, there are cases in the Fifth Circuit saying that if they're inconsistent instructions, that court can, I mean, if they're inconsistent answers on the verdict form, the court can reconcile.

[00:05:43] Speaker 04:
Right.

[00:05:44] Speaker 04:
Absolutely.

[00:05:46] Speaker 04:
The district court cited to the Nance v. Gulf oil case, that case has been, that statements in that case have been repeated by the Supreme Court and in other circuits.

[00:05:54] Speaker 04:
But there's no question that the invalidity answers were not inconsistent with any of the other answers that the jury had

[00:06:01] Speaker 03:
But they were inconsistent with the form.

[00:06:03] Speaker 03:
So there was inconsistency defined broadly as, let's assume, as I said, there's no issue about what oral instructions were given.

[00:06:11] Speaker 03:
And all you have is the verdict form.

[00:06:13] Speaker 03:
it raises a question.

[00:06:15] Speaker 03:
It's like, well, did the jury really mean to do that?

[00:06:19] Speaker 03:
Did they really mean to find infringement and they just checked the wrong box because that only then, following the verdict form, would they have reached the validity counts?

[00:06:28] Speaker 03:
So it seems to me, based on the Fifth Circuit precedent, that's enough of an inconsistency to use the term inconsistency.

[00:06:36] Speaker 04:
I don't think so, because the rule, right, that the district court itself cites is that

[00:06:41] Speaker 04:
If there's any view of the case in which the jury's answers can be viewed as being consistent, you have to accept the jury's answer.

[00:06:49] Speaker 04:
So the rule is actually the opposite of what Your Honor was just positing.

[00:06:53] Speaker 03:
It's not.

[00:06:54] Speaker 03:
How can it be consistent?

[00:06:55] Speaker 03:
Again, if we're only looking at the verdict form, and it says if you find non-infringement, you don't reach validity, and they find non-infringement, and then they go on to reach validity, isn't that an inconsistency?

[00:07:10] Speaker 04:
That's an inconsistency with the directive in the verdict form.

[00:07:14] Speaker 04:
And that's not right.

[00:07:15] Speaker 04:
I mean, I just want to be clear that when I'm answering these questions, this is assuming counter to the facts in this case, that essentially we had agreed to give up the ghost on the invalidity claims.

[00:07:26] Speaker 04:
And the entire premise here is that we didn't do that, that there was never any suggestion that we were withdrawing the counterclaim.

[00:07:33] Speaker 04:
And in fact, the oral instructions that went in without Flexus Spine's objection

[00:07:39] Speaker 04:
We're very clear that you must answer both of these questions.

[00:07:41] Speaker 01:
Are you familiar with the Carr case in the Fifth Circuit?

[00:07:46] Speaker 01:
I'm not sure.

[00:07:47] Speaker 01:
Well, I mean, it's 312, Fed 3rd, and it says, we've concluded that a district court does not abuse its discretion in reconciling verdicts containing answers to interrogatories that the jury was instructed not to answer when it either disregards the

[00:08:02] Speaker 01:
superfluous answers in their entirety or resubmits the interrogatories to the jury.

[00:08:08] Speaker 01:
That seems like an approval of what the kind of approach that the district court took here.

[00:08:15] Speaker 04:
Well, there are numerous cases in which courts address the situation.

[00:08:20] Speaker 04:
I mean, if we're now in the kind of counterfactual context where there was nothing else in the record, you know, the record was clear that we were somehow

[00:08:29] Speaker 04:
kind of agreeing to not have the jury address the invalidity claim, could we then force the court, essentially, to adopt the invalidity claim?

[00:08:38] Speaker 04:
I mean, there are certainly cases applying the Nance rule in our favor, basically saying that you have to accept the jury verdict if there's any view of the case in which the inconsistent answers can be reconciled, even when those inconsistent answers are somehow deviating from the instructions on a verdict form.

[00:08:56] Speaker 04:
I mean, those cases are there.

[00:08:58] Speaker 04:
And one case that actually came out after this appeal had been submitted, Idaho Gulf Partners versus Timberstone Management, that's 2017 Westlaw 353-1481.

[00:09:10] Speaker 04:
And that's a case where... Is that a Fifth Circuit case?

[00:09:15] Speaker 04:
It's not.

[00:09:15] Speaker 04:
It's a district court case.

[00:09:16] Speaker 04:
But this is a very rare situation.

[00:09:18] Speaker 04:
We were unable to find any case in which a judge actually told a jury on facts that are similar to this one.

[00:09:25] Speaker 04:
to actually go back and erase answers on a verdict form, especially when the jury did the right thing.

[00:09:30] Speaker 04:
They heeded the instructions.

[00:09:32] Speaker 01:
I think there are cases that say that and where the verdicts inconsistent.

[00:09:36] Speaker 01:
I mean, I guess what you're saying is those cases involve situations where under the legal theory that was presented,

[00:09:44] Speaker 01:
that the answers were inconsistent, whereas what you're saying here is that under the legal theory that was presented, the answers were not inconsistent.

[00:09:52] Speaker 01:
In other words, a case where it said, if you find no negligence, don't go on to question two, which relates to causation.

[00:10:01] Speaker 01:
You'd say that the answers are inconsistent based on the theory of the case, whereas here, that's not the situation.

[00:10:10] Speaker 01:
I mean, that's basically what you're arguing.

[00:10:13] Speaker 04:
Well, no, I think it's a little bit different.

[00:10:16] Speaker 04:
I mean, we do point to those cases, right?

[00:10:19] Speaker 04:
But the questions from the panel have focused on, well, what if we assume that there weren't these oral instructions and the case was presented in a different way?

[00:10:28] Speaker 04:
And it is true that our argument here is, look what happened.

[00:10:32] Speaker 04:
There were the oral instructions.

[00:10:34] Speaker 04:
There was the presentation of both infringement and invalidity.

[00:10:37] Speaker 04:
There was never any suggestion that those were somehow, that invalidity was only an affirmative defense.

[00:10:42] Speaker 04:
There was no withdrawal of the claim.

[00:10:43] Speaker 03:
Well, even if it were an affirmative defense, it still would have been presented at trial.

[00:10:47] Speaker 03:
Because if they had decided there was infringement, it would have necessarily have to have reached the validity contentions, whether they were counterclaims or affirmative defense.

[00:10:55] Speaker 03:
Right.

[00:10:55] Speaker 03:
And of course, it was presented at trial.

[00:10:57] Speaker 04:
Absolutely.

[00:10:58] Speaker 04:
But it was presented in the instruction as being separate issues that the jury must consider.

[00:11:02] Speaker 04:
And FlexiSpy didn't object to those.

[00:11:04] Speaker 04:
But this is not, when we're talking about waiver.

[00:11:08] Speaker 01:
I don't know why you don't want to accept my characterization of your theory.

[00:11:11] Speaker 01:
It seems to me it makes sense.

[00:11:14] Speaker 01:
What you're saying is you can erase the second answer, the interrogatory answer, if you can't have the two answers be consistent with the theory of the case.

[00:11:27] Speaker 01:
But here, the two answers are inconsistent with the theory of the case.

[00:11:31] Speaker 01:
The only problem is that

[00:11:33] Speaker 01:
district court told them not to go on to question whatever it is to if they answered question one.

[00:11:40] Speaker 04:
If I understand the context, I'm not going to fight you on that.

[00:11:45] Speaker 04:
I do think it's different from the situation where there are internally inconsistent answers, which is that's the situation that is presented in the cases where a judge resubmits the verdict to a jury.

[00:11:58] Speaker 04:
So that is

[00:11:59] Speaker 04:
That is what we're talking about here.

[00:12:00] Speaker 04:
And we're even in a better position because of the oral instructions and the fact that the jury did the right thing in the first instance.

[00:12:07] Speaker 04:
The Seventh Amendment says, if the jury does the right thing in the first instance, you have to go with what the jury said.

[00:12:11] Speaker 01:
But I don't understand why the judge has to accept the jury verdict that's inconsistent with his instructions, even though the verdict would be consistent with the theory of the case.

[00:12:22] Speaker 01:
I don't understand why you can't

[00:12:25] Speaker 01:
tell them not to go on to question two without objection, and then say, well, you didn't follow my instructions, so I'm erasing the second part of the verdict.

[00:12:34] Speaker 04:
Right.

[00:12:34] Speaker 04:
And even the district court didn't say, well, that was what I intended.

[00:12:37] Speaker 04:
That was the right way to approach the case.

[00:12:39] Speaker 04:
The district court's decision was premised on this issue of waiver.

[00:12:42] Speaker 04:
And our point was that that's not the issue, because the oral instructions properly instructed the jury to address both questions.

[00:12:49] Speaker 04:
I honestly don't think at that point in time that the issue is submitted

[00:12:53] Speaker 04:
to the jury that anyone thought that we were somehow sub-celincio withdrawing the invalidity counterclaims from the jury's problems.

[00:13:00] Speaker 03:
But you're presumed to have read the form.

[00:13:03] Speaker 03:
And the form clearly says something different.

[00:13:07] Speaker 03:
And the court pressed whether or not there's an objection to that, whether or not you're all OK with that.

[00:13:13] Speaker 03:
And given that, I mean, what more clarity could you want?

[00:13:16] Speaker 03:
OK, there's different people say different things all through

[00:13:20] Speaker 03:
everything that's going on.

[00:13:21] Speaker 03:
But why is that not sufficient to constitute a waiver?

[00:13:25] Speaker 04:
It's for this reason, that the oral instruction said something different.

[00:13:28] Speaker 04:
I mean, you could say exactly what you just said.

[00:13:29] Speaker 04:
You could say that to flex your spine, because the judge did exactly the same thing.

[00:13:33] Speaker 04:
He walked through those oral instructions that were delivered to the jury.

[00:13:37] Speaker 04:
And there was never an objection saying, well, judge, remember that the invalidity claim is only being presented if there's a finding of infringement on these claims.

[00:13:45] Speaker 04:
And that needs to be included in the instruction.

[00:13:47] Speaker 04:
You could say that exact same thing.

[00:13:49] Speaker 04:
So the facts here are that there was, at worst for us again, an ambiguity in the instructions between the oral instructions and the verdict form.

[00:13:57] Speaker 04:
The jury resolves that ambiguity in the right way by addressing the invalidity questions.

[00:14:02] Speaker 04:
And instead of accepting that verdict, which is what Nance and these other cases would say, it's what the seventh amendment waiver principles would dictate.

[00:14:10] Speaker 04:
The judge does the opposite thing, which is unprecedented, telling the jury, you need to erase your answers to those invalidity questions.

[00:14:17] Speaker 04:
Even the district court acknowledges that the invalidity counterclaim is still live in the case.

[00:14:23] Speaker 04:
And that's the only reason why we get to the second part of our appeal, which has to do with the judgment as a matter of law.

[00:14:29] Speaker 04:
The district court's in a bind, because now that it's told the jury to just go erase those answers, it now has to entertain a judgment as a matter of law motion where there hasn't been a verdict.

[00:14:39] Speaker 04:
So even the district court didn't think that we waived the counterclaim somehow from the case because, of course, there was no evidence anywhere that the issue had been directly addressed and that we were somehow withdrawing the counterclaim from the case.

[00:14:52] Speaker 04:
I mean, that's really what happened here.

[00:14:55] Speaker 04:
The error that happens is not before the jury comes back, right?

[00:15:00] Speaker 04:
The jury comes back in our favor and they say, look, we are going to address the invalidity counterclaims because that's what we were instructed to do by the judge.

[00:15:08] Speaker 04:
It's the district court at that time, without giving counsel an opportunity to even comment on the matter, says, jury, go back, take out your answers to question number two, and then return.

[00:15:19] Speaker 04:
And at that point, we did make an objection.

[00:15:21] Speaker 01:
So why isn't there an agreement not to submit the invalidity issues to the jury if they find no infringement, an agreement effectively to withdraw the counterpoint?

[00:15:34] Speaker 04:
Because I don't think that there's

[00:15:37] Speaker 04:
that there's sufficient evidence to infer the withdrawal of that counterclaim based on the fact that, I mean, we all agree that the oral instructions, I mean, our position in the district court was that the oral instructions actually prevail over anything in the verdict form.

[00:15:52] Speaker 04:
But even if you view them all as part of the same kind of pot, then you can't infer an agreement in that context, especially where the Seventh Amendment is implicated.

[00:16:02] Speaker 04:
So in the cases that we cite, like Jennings v. McCormick,

[00:16:05] Speaker 04:
The rule is not like it is in the normal context.

[00:16:08] Speaker 04:
You don't just infer a waiver based on kind of one thing that happened.

[00:16:12] Speaker 04:
You have to have a clear and unmistakable waiver.

[00:16:15] Speaker 04:
So basically, there has to be just no doubt that there has been a waiver of the jury demand in this context.

[00:16:20] Speaker 03:
The only theory in which that would be the case is if we were to say, well, the person that agreed to the verdict form understood that it didn't mean what it said.

[00:16:33] Speaker 03:
or that he wasn't agreeing to anything in fact because of the oral instruction, right?

[00:16:38] Speaker 03:
I mean, it's kind of hard to avoid that under any waiver theory.

[00:16:42] Speaker 04:
Absolutely not.

[00:16:43] Speaker 03:
Well, what would be the theory about what the person who had the opportunity to object, who was asked, who said verdict form is fine, what was in his mind then?

[00:16:53] Speaker 03:
How was he reconciling the oral instruction and what was saying in the jury form?

[00:16:58] Speaker 04:
Okay, well, I mean, I can tell you that we, you know, in our briefs, we characterize this as a mistake.

[00:17:02] Speaker 04:
That's certainly what it was, the actual conference on the verdict form.

[00:17:06] Speaker 04:
You know, all the way through to the conference on the verdict form, we obviously did not have a stop instruction in the verdict forms that we were submitting.

[00:17:15] Speaker 04:
In the Eastern District of Texas, it's a rocket docket.

[00:17:18] Speaker 04:
These cases get tried in a very compressed banner.

[00:17:20] Speaker 04:
We had the conference, I think, right before we had closings in the case.

[00:17:24] Speaker 04:
And we made a mistake.

[00:17:25] Speaker 04:
And that's what it is.

[00:17:27] Speaker 01:
What's your best case for this proposition that you can't waive something under the Seventh Amendment by failure to object?

[00:17:39] Speaker 04:
Well, I think that the best cases are, for instance, Jennings v. McCormick, the right to a jury trial is too important and usual

[00:17:47] Speaker 04:
And the usual procedure for waiver is to clearly set out by the civil rules for court to find a knowing and voluntary relinquishment of the right in a doubtful situation.

[00:17:57] Speaker 04:
And just on that point, to answer your question, what normally would have happened in this context, if there really was a suggestion or a thought from anyone that the counterclaim was being withdrawn from the jury's province, is you would have under rule 39, you would say, well, let's stipulate that the counterclaim is being withdrawn.

[00:18:14] Speaker 04:
are you withdrawing it from the case?

[00:18:16] Speaker 04:
The question would have been asked.

[00:18:18] Speaker 04:
And we would have said, no, absolutely, we're not withdrawing this counterclaim from the case.

[00:18:22] Speaker 04:
But the noticeable thing about this record is that there's actually nothing other than that line where we didn't object to the questions on page two of the verdict form.

[00:18:31] Speaker 04:
There's nothing else to suggest that we were somehow converting the invalidity counterclaim into an affirmative defense after having presented it and after the judge in preliminary jury instructions

[00:18:43] Speaker 04:
And after the fact, jury instructions had acknowledged that it was a separate and independent claim that was being presented to the jury.

[00:18:51] Speaker 01:
But what case says that you can't waive the right to jury trial by failure to object?

[00:18:56] Speaker 04:
I think the cases are pretty fact specific.

[00:19:00] Speaker 04:
But the principles that are stated in those cases are very clear that you don't

[00:19:06] Speaker 04:
infer a waiver in a doubtful situation.

[00:19:08] Speaker 04:
I cited Jennings.

[00:19:09] Speaker 04:
There's also the Traywrap Inc.

[00:19:11] Speaker 04:
versus 6L's Packing Company case from the second term.

[00:19:14] Speaker 01:
Would it be fair to say that none of those cases involved a situation which the court said a failure to object wasn't sufficient to accomplish a waiver?

[00:19:21] Speaker 04:
Oh, no.

[00:19:22] Speaker 04:
The general principle that if the judge's saying, I'm not going to submit this issue to a jury, and then you say nothing about it, I do think that, as the district court noted, that you can have situations where my conduct

[00:19:35] Speaker 01:
That would be a wave.

[00:19:37] Speaker 04:
Right.

[00:19:37] Speaker 04:
But that's not what happened here is our point.

[00:19:39] Speaker 04:
Because the oral instructions, everything else, there was never any point in time in which the district court said, well, Mr. Subramanian and Globus Medical, I see that you're withdrawing your invalidity claim and only presenting it as an affirmative defense.

[00:19:53] Speaker 04:
This is actually what causes the problem later when the district court says, well, what am I supposed to do with this counterclaim?

[00:19:58] Speaker 04:
There was never any discussion like that.

[00:20:00] Speaker 04:
Of course, if there were, we would have said, well, no, Your Honor.

[00:20:03] Speaker 03:
We are absolutely submitting that counterclaim to the jury, consistent with your own... But there are plenty of... Now, I know you say these are summary judgment cases, but there are plenty of cases in which case comes up on summary judgment and the counterclaims are dismissed without prejudice, and the case comes up to us on appeal based on claim construction and finding of non-infringement, stipulation of non-infringement.

[00:20:23] Speaker 03:
That happens all the time.

[00:20:25] Speaker 04:
At the summary judgment stage.

[00:20:26] Speaker 04:
That's right.

[00:20:27] Speaker 03:
And why is that different?

[00:20:28] Speaker 03:
Why would that be different?

[00:20:30] Speaker 04:
Right, because the premise of that rule is that if there's a finding of non-infringement, then to save judicial resources in having a trial on validity in a district court's discretion.

[00:20:40] Speaker 04:
I actually think that the appellate court is sort of bounded in what it can do by Supreme Court precedent.

[00:20:45] Speaker 04:
But the district court has discretion not to go forward and consider the claim for invalidity.

[00:20:49] Speaker 04:
I'm not aware of any case where claims are actually submitted to a jury.

[00:20:55] Speaker 04:
There's a full trial record.

[00:20:57] Speaker 04:
And then a court says, well, the jurors come back, found patents invalid, but I'm going to throw out this entire issue as moot.

[00:21:03] Speaker 04:
That's just never been done.

[00:21:04] Speaker 04:
And it's understandable why, because you've already had the full investment of resources.

[00:21:09] Speaker 04:
You have a full trial record.

[00:21:10] Speaker 04:
It's in there.

[00:21:12] Speaker 04:
And now the judge is saying, well, let's throw that in the trash can, because you're just going to have to do it again later.

[00:21:17] Speaker 04:
And there's a real risk that we will have to do this later, because even though FlexusMind lost this round, our understanding is that they may

[00:21:24] Speaker 04:
comes to us on other products.

[00:21:26] Speaker 04:
And so we might have to face these claims once again, which would be really unfair given that not only was a full trial record created where the parties and the court invested these resources, but more than that, we actually got a jury verdict that was proper and said that these claims are invalid based on overwhelming evidence of invalidity.

[00:21:45] Speaker 04:
And that's really, I mean, in terms of the 50B motion, the point of that really is look at these references.

[00:21:50] Speaker 04:
This is a really crowded field of art.

[00:21:53] Speaker 04:
where there are just minor differences between these references.

[00:21:57] Speaker 04:
Really, we think that it could have been invalid as a matter of law.

[00:22:00] Speaker 04:
It should be invalid as a matter of law.

[00:22:02] Speaker 04:
But the jury made that finding after hearing all the evidence.

[00:22:05] Speaker 03:
OK.

[00:22:06] Speaker 03:
Well, we'll just do our two minutes of rebuttal.

[00:22:08] Speaker 03:
Thank you.

[00:22:14] Speaker 02:
Good morning.

[00:22:18] Speaker 02:
May it please the court, Mark Strong, on behalf of Flexus Pine,

[00:22:23] Speaker 02:
Your Honors, I would like to begin the discussion with the 810 patent.

[00:22:29] Speaker 02:
It's the cross-appeal.

[00:22:31] Speaker 02:
And this is a patent which describes the relative movement, specifically oblique movement.

[00:22:38] Speaker 02:
The court will recall from the briefs, there's diagrams, I think it's page 34 of the red brief, which show an insert in the middle with a ramped edge.

[00:22:48] Speaker 02:
And as that ramped edge goes linearly,

[00:22:53] Speaker 01:
We're not really interested in the first argument.

[00:22:55] Speaker 02:
Oh, absolutely, Your Honor.

[00:22:57] Speaker 02:
You're talking about the jury verdict?

[00:23:00] Speaker 02:
Yeah.

[00:23:01] Speaker 02:
Oh, yes, sir.

[00:23:01] Speaker 02:
I definitely want to address that.

[00:23:03] Speaker 02:
I just wanted to make sure I addressed the 810.

[00:23:05] Speaker 02:
I'm happy to do the jury verdict first, if you prefer.

[00:23:08] Speaker 02:
Yes.

[00:23:09] Speaker 02:
OK.

[00:23:10] Speaker 02:
I would like to make two points at the outset for that.

[00:23:12] Speaker 02:
First of all, counsel described the

[00:23:17] Speaker 02:
the judge's actions as telling the jury to erase its answers.

[00:23:21] Speaker 02:
And that's not actually what happened.

[00:23:23] Speaker 02:
If you look at the appendix, page 5011, there's the discussion.

[00:23:27] Speaker 02:
And the judge just says, without telling anyone what the answers are, jury, you have not followed my instructions.

[00:23:36] Speaker 02:
Go back and follow them.

[00:23:38] Speaker 02:
He didn't say, erase it.

[00:23:40] Speaker 02:
they could have come back and found and changed their answer.

[00:23:42] Speaker 03:
What about the oral instructions that your friends tells us were inconsistent and that the jury therefore could have reasonably resolved an inconsistency as opposed to just going off on a walk?

[00:23:54] Speaker 02:
Your honor, the oral instructions do nothing more than say the issue of infringement and the issue of validity are separate inquiries, which of course they are.

[00:24:03] Speaker 02:
It in no way says you have to answer both regardless

[00:24:07] Speaker 02:
It doesn't even address whether it's conditioned or underdrained.

[00:24:11] Speaker 00:
Literally, read this from the instructions, the oral instructions.

[00:24:17] Speaker 00:
Do you have the record here?

[00:24:18] Speaker 02:
Oh, yes, sir.

[00:24:23] Speaker 00:
I thought it was in document 250.

[00:24:25] Speaker 00:
257-915, document 250.

[00:24:42] Speaker 03:
You want to give us the appendix site, if you have it?

[00:24:46] Speaker 02:
Your Honor, if you might indulge me by reading what section that I perhaps I could answer.

[00:24:51] Speaker 00:
From my notes, the court instructed the jury, quote, answer each question from the jury forum from the facts as you find them to be in the case, period, close quote.

[00:25:01] Speaker 00:
Was there any other jury instruction relevant to the issue at hand?

[00:25:07] Speaker 01:
No, Your Honor.

[00:25:09] Speaker 01:
I mean, in the jury instructions on A33, I guess this is the original.

[00:25:16] Speaker 01:
This is not the final instructions.

[00:25:18] Speaker 01:
I think it's the same.

[00:25:18] Speaker 01:
It says, you must decide the following three main issues.

[00:25:23] Speaker 01:
And then it says, infringement, invalidating damages.

[00:25:26] Speaker 01:
And I think that's reflected in the final jury instructions as well.

[00:25:33] Speaker 02:
Your Honor, I would submit that that in no way is inconsistent with the

[00:25:38] Speaker 02:
conditional submission, which was given to the jury.

[00:25:42] Speaker 01:
I mean, it does seem a bit inconsistent, right?

[00:25:45] Speaker 01:
You must decide the following three main issues.

[00:25:51] Speaker 02:
Well, Your Honor, again, I respectfully disagree.

[00:25:55] Speaker 02:
Those were three issues before the jury.

[00:25:57] Speaker 02:
They must decide each one based on the evidence.

[00:25:59] Speaker 02:
But if it's submitted as an affirmative defense, which in this case it was,

[00:26:05] Speaker 02:
then the invalidity issue is contingent on a finding of infringement as a defense.

[00:26:10] Speaker 02:
If you find no infringement, then invalidity is irrelevant as are damages.

[00:26:15] Speaker 03:
But there's no indication.

[00:26:17] Speaker 03:
But the only thing you have to rely on is that they didn't object to the verdict form, right?

[00:26:22] Speaker 03:
They didn't withdraw their counterclaim.

[00:26:23] Speaker 03:
They didn't recast their counterclaim as an affirmative defense.

[00:26:27] Speaker 03:
All you have is support for what went down here is the failure to object to the verdict form, right?

[00:26:33] Speaker 02:
Well, Your Honor, my position is that in agreeing and acquiescing in the form of the verdict, they effectively waived invalidity as a counterclaim.

[00:26:45] Speaker 02:
That is the position.

[00:26:47] Speaker 03:
Well, did they withdraw it?

[00:26:49] Speaker 03:
I mean, are you saying they withdrew their counterclaim, that they recast or reconstituted their counterclaim as an affirmative defense?

[00:26:59] Speaker 03:
Because clearly the judge thought the counterclaim was still around.

[00:27:01] Speaker 03:
At the end of the day, he dismissed it without prejudice.

[00:27:04] Speaker 03:
So there's still something there called the counterclaim.

[00:27:07] Speaker 02:
He did do that, Your Honor, and I confess my confusion of how he thought that.

[00:27:11] Speaker 02:
But be that as it may, the form as submitted, and it was the burden of Globus to request a submission

[00:27:22] Speaker 02:
of a counterclaim if it wanted to proceed on the counterclaim.

[00:27:25] Speaker 00:
That's the way in which they had pitched the case right up to the moment of the creation of the jury.

[00:27:32] Speaker 00:
Certainly up until it was pitched and there was no evidence that they were repitching.

[00:27:38] Speaker 00:
So I think what your argument has to be is that the jury was free to understand the jury heard this as a counterclaim.

[00:27:48] Speaker 00:
They knew that.

[00:27:49] Speaker 00:
So you're saying because of the jury form, the judge re-characterized the, or your adversary might agree, the jury form re-characterized the nature of the claim for purposes of the jury's assessment, but not for purposes of the whole case.

[00:28:08] Speaker 02:
Well, respectfully, Your Honor, the jury did not hear in validity as a counterclaim.

[00:28:12] Speaker 02:
It merely heard in validity.

[00:28:15] Speaker 02:
In validity,

[00:28:17] Speaker 02:
That's an issue.

[00:28:18] Speaker 02:
It has legal ramifications, both as a defense and as an affirmative basis for a leak.

[00:28:23] Speaker 02:
But the issue tried wasn't a counterclaim or a defense.

[00:28:26] Speaker 02:
It was simply in validity.

[00:28:28] Speaker 01:
Yeah, but then we get back to the jury instructions and not only the part that I read you earlier.

[00:28:33] Speaker 01:
This is at 49 and 35 and 36, which are the final instructions.

[00:28:39] Speaker 01:
Because infringement and in validity are separate questions and should be considered and answered separately by you, the jury.

[00:28:46] Speaker 01:
And then he says, you must decide the following three main issues listing infringement and invalidity.

[00:28:51] Speaker 01:
And then on the next page, he says, you must decide whether any of these items, which have been preferred by Globus, serve to invalidate the asserted claims of the patents.

[00:29:04] Speaker 01:
Yes, Your Honor.

[00:29:09] Speaker 02:
That is an accurate description of the separateness of the inquiry with regard to infringement.

[00:29:14] Speaker 02:
and with regard to invalidity.

[00:29:16] Speaker 02:
But again, invalidity in and of itself is neither exclusively a defense.

[00:29:22] Speaker 01:
Suppose we were to construe the oral instructions as saying, it's not contingent.

[00:29:29] Speaker 01:
You must decide infringement.

[00:29:32] Speaker 01:
And regardless of your decision on infringement, you must decide invalidity.

[00:29:35] Speaker 01:
Suppose that were the oral instructions.

[00:29:39] Speaker 01:
Okay, what should the district court do under those circumstances when there would be then a direct conflict between the oral instruction and the court?

[00:29:49] Speaker 02:
Positting that hypothetical, an obvious direct conflict between the instruction and the verdict form instruction, then it is discretionary with the court of how you deal with that conflict.

[00:30:00] Speaker 02:
In this case, the court appropriately used its discretion to say, since the jury form, the verdict form,

[00:30:07] Speaker 02:
says, do it this way.

[00:30:09] Speaker 02:
I'm using my discretion.

[00:30:10] Speaker 02:
You should disregard.

[00:30:11] Speaker 02:
And I want to make sure.

[00:30:12] Speaker 03:
Oh, and I said, finish your sentence.

[00:30:14] Speaker 03:
You should disregard what you're saying.

[00:30:16] Speaker 03:
The district court has the discretion to tell them to disregard the jury instruction.

[00:30:20] Speaker 02:
No, Your Honor.

[00:30:21] Speaker 02:
I'm sorry.

[00:30:22] Speaker 02:
I didn't make that clear.

[00:30:23] Speaker 02:
The court had the discretion to stop after the answer to the first question.

[00:30:29] Speaker 02:
And any answer to any question after that, be it in validity, damage, or otherwise, is a nullity.

[00:30:34] Speaker 02:
It's superfluous.

[00:30:36] Speaker 01:
For example, if I could answer in my favor.

[00:30:38] Speaker 01:
But the hypothetical is that the oral instructions tell them to decide both regardless.

[00:30:44] Speaker 02:
Indeed, Your Honor.

[00:30:45] Speaker 02:
And now you have a conflict.

[00:30:46] Speaker 02:
And my answer to your question is that what the judge does with that conflict is within his discretion.

[00:30:53] Speaker 02:
And in this case, he exercised, even under the hypothetical you pose, he exercised the discretion to disregard anything.

[00:31:01] Speaker 03:
Why is it solely within his discretion?

[00:31:03] Speaker 03:
There has to be some clear waiver.

[00:31:05] Speaker 03:
So doesn't the fact that the two are absolutely on their face inconsistent, doesn't that suggest that there's been no clear waiver by agreement or failure to object to the jury form?

[00:31:18] Speaker 03:
And if in that case, it's not really all up to the judge and his sole discretion, he has to conclude that there was a real waiver, even though there's some tension between how things went down, right?

[00:31:29] Speaker 02:
Well, Your Honor, I would submit that one, he doesn't have to, in that case, find a waiver.

[00:31:33] Speaker 02:
He can say, this is in conflict.

[00:31:36] Speaker 02:
I am going to exercise my discretion.

[00:31:38] Speaker 02:
My instruction is the jury as to which to answer in what order was as follows.

[00:31:44] Speaker 02:
And therefore, in my discretion, I'm going to instruct them to only answer and treat anything afterwards for plaintiff or defendant as superfluous, which is what happened here.

[00:31:55] Speaker 00:
I wouldn't be making this... Because he is, because the district court judge in exercising that discretion decides that Globus changed the nature of its validity challenge through the jury form from a counterclaim to an affirmative defense.

[00:32:12] Speaker 02:
Well, Your Honor... Isn't that essential to your argument?

[00:32:15] Speaker 00:
That, yes, that the... So where does the judge get the discretion to change the theory

[00:32:24] Speaker 02:
Well, he's now posed with this answer in which the jury has obviously disregarded his instructions on the verdict form.

[00:32:34] Speaker 02:
Now, what does he do?

[00:32:35] Speaker 02:
That's what's facing the judge.

[00:32:38] Speaker 02:
And you can't do a replay.

[00:32:39] Speaker 02:
You can't go back.

[00:32:41] Speaker 02:
What if the jury had answered only the first question and pursuant to those instructions, didn't answer the second?

[00:32:49] Speaker 02:
And so the judge entered a verdict solely on the first question without regard to any other questions.

[00:32:55] Speaker 02:
That's one possibility.

[00:32:57] Speaker 02:
And so what Globus is positing is that a rule that would apply only if the jury disregards that verdict form instruction.

[00:33:05] Speaker 02:
And I submit that that type of rule is prone for mischief.

[00:33:10] Speaker 02:
We just need a system that the judge instructs the jury only answer this conditionally.

[00:33:16] Speaker 02:
And right there on the front in all caps,

[00:33:20] Speaker 02:
A party doesn't object to that, Fulker, albeit by mistake or intent.

[00:33:25] Speaker 01:
Why wouldn't the result be that there was a direct conflict between the jury form and the instructions?

[00:33:31] Speaker 01:
Why wouldn't the result be that you have a new trial?

[00:33:33] Speaker 01:
I'm sorry, Your Honor.

[00:33:34] Speaker 01:
Why wouldn't the result be that you have a new trial if there's a direct inconsistency between the verdict form and the instructions?

[00:33:43] Speaker 02:
Your Honor, going back to the hypothetic we posed earlier, certainly I think he has discretion to order a new trial based on that conflict.

[00:33:50] Speaker 01:
But maybe he has to order a new trial if he's given inconsistent instructions.

[00:33:58] Speaker 02:
Well, Your Honor, I would return, and I know it's the needle stuck in the same groove, but given the format of the instructions in the verdict form, I would posit that he has the discretion to disregard.

[00:34:12] Speaker 00:
Who created the jury form?

[00:34:15] Speaker 02:
The verdict form?

[00:34:17] Speaker 00:
The verdict form says, you know, answer one, answer one, don't answer two.

[00:34:22] Speaker 00:
Did the judge propose that to the two parties and say, is this okay with you?

[00:34:28] Speaker 02:
Yes, Your Honor.

[00:34:28] Speaker 02:
The parties submitted competing forms.

[00:34:31] Speaker 02:
The judge with his law clerks then prepares a verdict form and gives that to us as a proposal.

[00:34:36] Speaker 00:
Okay, so let's get straight.

[00:34:37] Speaker 00:
So the parties prepared during forms.

[00:34:40] Speaker 00:
What was your, what did your form say?

[00:34:42] Speaker 02:
Exactly what was submitted, Your Honor.

[00:34:44] Speaker 02:
The, that conditioned

[00:34:45] Speaker 02:
the submission of invalidity on a finding of infringement.

[00:34:48] Speaker 00:
And the other side presented a form that said decide both?

[00:34:51] Speaker 02:
Without condition, yes.

[00:34:53] Speaker 03:
Without a condition.

[00:34:54] Speaker 03:
Well, they didn't, did the form say that or it just didn't have that insert?

[00:34:58] Speaker 02:
It just did not, I'm sorry I interrupted, did not have the insert.

[00:35:02] Speaker 02:
It was just here's one, here's two with no discussion between the connection.

[00:35:06] Speaker 02:
So those were the two competing forms.

[00:35:09] Speaker 00:
And their form didn't say, you must decide, you must decide both?

[00:35:15] Speaker 00:
Is that what they said?

[00:35:16] Speaker 02:
No, it did not.

[00:35:18] Speaker 02:
It said question one, question two, with no preamble about the relationship, if any, between one and two.

[00:35:24] Speaker 00:
So their proposed form was inconsistent with the oral instructions.

[00:35:30] Speaker 00:
The oral instructions said you must decide one and you must decide two.

[00:35:37] Speaker 02:
It certainly didn't have any instructions.

[00:35:39] Speaker 00:
Was there a conference in front of the judge before the oral instructions?

[00:35:44] Speaker 02:
Yes, Your Honor.

[00:35:44] Speaker 02:
Is that in our record?

[00:35:47] Speaker 02:
Yes, Your Honor.

[00:35:47] Speaker 02:
I believe if you'll go to the... I'm sorry, but in the record, there is an appendix in our brief when we talk about the recitation of the charge conference.

[00:36:07] Speaker 02:
You'll see the recitation of the four times that the judge asked on the record, are there any objections to the verdict form as a whole as to this specific page?

[00:36:15] Speaker 00:
Well, I know that's the verdict form.

[00:36:16] Speaker 00:
What I'm trying to get at is whether there was any negotiation, if you will, over the oral instructions.

[00:36:21] Speaker 00:
Where did the oral instructions come from?

[00:36:24] Speaker 02:
Again, Your Honor, the parties submit, in part of a pretrial order, competing jury instructions, the oral instructions, if you will.

[00:36:33] Speaker 02:
And then there is a conference in which the parties

[00:36:37] Speaker 02:
Council and the judge and the law clerks talked about it and talked through that.

[00:36:41] Speaker 02:
Off the record.

[00:36:42] Speaker 02:
Off the record.

[00:36:43] Speaker 02:
Initially it's off the record and then the judge, based on that, prepares a proposed form and then we have a meeting on the record and on the record, the court inquires about any objections or discussion in regard to his proposed jury instructions.

[00:36:57] Speaker 01:
And there were no objections to the oral instructions?

[00:37:00] Speaker 02:
Not from a global structure.

[00:37:03] Speaker 02:
Fletcher-Spine had some objections which have nothing to do with the issue here.

[00:37:11] Speaker 01:
So if the instructions were read as saying you have to decide both infringement and invalidity, then maybe you should have objected to those oral instructions, huh?

[00:37:23] Speaker 02:
Well, Your Honor, again, I respectfully disagree that they said that.

[00:37:26] Speaker 02:
They said they're separate issues.

[00:37:27] Speaker 01:
I do not read that.

[00:37:28] Speaker 01:
But I'm asking a hypothetical.

[00:37:29] Speaker 01:
I'm saying let's assume that the oral instructions said you must decide both.

[00:37:35] Speaker 01:
and didn't have the contingency of the verdict form.

[00:37:43] Speaker 01:
So don't you have a problem that you didn't object to those instructions?

[00:37:49] Speaker 02:
Well, no, Your Honor, because the invalidity, regardless of how posed, is Globus's

[00:37:55] Speaker 02:
It's not mine to ask how to submit that.

[00:37:58] Speaker 01:
No, no, no.

[00:37:59] Speaker 01:
But what I'm hypothesizing is that district court gives an oral instruction which is directly inconsistent with the verdict court.

[00:38:06] Speaker 01:
You must, under all circumstances, decide both of these.

[00:38:10] Speaker 01:
Let's assume we read the oral instructions that way.

[00:38:14] Speaker 01:
And that's inconsistent with the verdict court.

[00:38:16] Speaker 01:
You didn't object to that instruction.

[00:38:18] Speaker 01:
And isn't that a problem for you?

[00:38:21] Speaker 02:
I submit not, Your Honor, for the reasons that I've been alluding to.

[00:38:25] Speaker 02:
No.

[00:38:27] Speaker 01:
Why is that not a problem?

[00:38:29] Speaker 02:
Because it is not my issue.

[00:38:31] Speaker 02:
And any problems that results from the conflict of- It's not your issue?

[00:38:35] Speaker 01:
I mean, you say that the failure objective and jury instruction is excused if it's not your issue?

[00:38:41] Speaker 02:
No.

[00:38:42] Speaker 02:
What I'm saying, Your Honor, is whether or not it is submitted as a defense or as a counterclaim is the purview of the defendant, as Globus is in this case.

[00:38:53] Speaker 02:
There were pleadings to support both.

[00:38:56] Speaker 02:
And whether to submit as both or as just one was not my concern.

[00:39:02] Speaker 02:
I would not object to that.

[00:39:03] Speaker 02:
There was a pleading to support as a counterclaim, without a doubt.

[00:39:06] Speaker 03:
Clearly, the district court didn't view them as having recast their counterclaim as an affirmative defense.

[00:39:14] Speaker 03:
If so, why would he have, at the end of the day, realized and recognized correctly that there's still this counterclaim out there that I have to deal with?

[00:39:24] Speaker 03:
And he called that a counterclaim.

[00:39:26] Speaker 03:
He didn't say, I have this affirmative defense.

[00:39:29] Speaker 03:
I mean, he realized there's still something in the case.

[00:39:32] Speaker 03:
Obviously, he didn't conclude that they had withdrawn their counterclaim, right?

[00:39:36] Speaker 03:
If not, he wouldn't have had to have been dismissed with both prejudices.

[00:39:40] Speaker 02:
If I understand your question, if you're asking me when he instructed the jury, was he cognizant that this is being submitted only as a defense and not a counterclaim?

[00:39:49] Speaker 02:
I don't know what he thought, but I doubt that he was focused on that.

[00:39:53] Speaker 02:
There was not a discussion.

[00:39:55] Speaker 00:
But when he says in his oral instructions, which he'd agreed on earlier, you must decide both of these, they are separate, that has to mean he's looking at it as a counterpoint.

[00:40:09] Speaker 00:
Because if they're not separate, totally separate, and you don't have to decide them both, then obviously it's an affirmative defense.

[00:40:17] Speaker 02:
Well, Your Honor, respectfully, I disagree.

[00:40:21] Speaker 02:
Infringement and validity are separate issues, even if it is only part of as a defense.

[00:40:29] Speaker 02:
The invalidity doesn't, it's just different whether or not something anticipated or otherwise is a different inquiry, a different burden, a different body of proof than infringement.

[00:40:41] Speaker 02:
And so it is always appropriate to say those are separate inquiries.

[00:40:44] Speaker 00:
It's the notion that you must decide it.

[00:40:47] Speaker 00:
You don't need to decide in validity if you've decided no infringement.

[00:40:53] Speaker 00:
You don't need to.

[00:40:54] Speaker 00:
That's correct.

[00:40:55] Speaker 00:
The judge in the oral instructions, as I understood them to say, you must decide both issues.

[00:41:01] Speaker 00:
The judge is thereby characterizing the validity challenge, not as an affirmative defense, but as a counterclaim.

[00:41:09] Speaker 00:
and your honor in his head and it's confirmed as the chief judge said by the fact that he afterwards said, what am I going to do with the counterpoint?

[00:41:17] Speaker 02:
Well, your honor, respectfully, I do not think that's what he is thinking.

[00:41:20] Speaker 02:
I think he is saying each of these points are separate.

[00:41:23] Speaker 02:
You must not conflate one issue with another.

[00:41:26] Speaker 02:
You must consider them separate.

[00:41:28] Speaker 02:
I think that is as far as you can say what the judge had in mind.

[00:41:32] Speaker 02:
If you then go to the verdict form where you have these competing forms,

[00:41:37] Speaker 02:
and he selects a form which is clearly only from affirmative defense, then one must decide at that point he's going to submit it as affirmative defense to which Globus has acquiesced.

[00:41:50] Speaker 02:
So I think that's the posture of the case when he sends it to the jury.

[00:41:54] Speaker 02:
And now the problem everyone faces, the jury comes back, doesn't follow instructions.

[00:41:58] Speaker 02:
What do we do?

[00:42:00] Speaker 02:
Your Honor, I know my time's expired, but I would really like to address the 810 patent, if I may briefly.

[00:42:06] Speaker 03:
take a minute or two.

[00:42:07] Speaker 02:
Thank you, Your Honor.

[00:42:08] Speaker 02:
The 810 patent was dismissed by summary judgment.

[00:42:12] Speaker 02:
This has to do with oblique movement.

[00:42:15] Speaker 02:
Essentially, Your Honor, you'll see on page 34 and 35 the diagrams that describe both the concept of oblique movement as well as how it applies to the accused product.

[00:42:27] Speaker 02:
It's a ramp.

[00:42:29] Speaker 02:
And when you apply a force to a ramp,

[00:42:33] Speaker 02:
It's going to go forward, and it's going to go up.

[00:42:37] Speaker 02:
But movement analysis of any sort requires a frame of reference.

[00:42:41] Speaker 02:
If you say move to the left, I have to inquire.

[00:42:44] Speaker 02:
Do you mean my left or your left?

[00:42:45] Speaker 02:
I need a frame of reference.

[00:42:47] Speaker 02:
To the same fact, you need a frame of reference oblique to what?

[00:42:52] Speaker 02:
And the claim 17 perfectly describes oblique to the upper body and lower body.

[00:42:58] Speaker 02:
And the party's agreement says respect to the upper body and the lower body.

[00:43:03] Speaker 02:
If you pick any two points, one on the upper body, or one on the expansion member, and one on the lower body, for example, and then you move it, if you advance that, and then look at those two points, they will have changed both on an X and a Y axis.

[00:43:19] Speaker 02:
And moving both on an X and a Y axis, by definition, is oblique.

[00:43:25] Speaker 02:
The magistrate herself said, used an apotenous.

[00:43:28] Speaker 02:
An apotenous is a varied definition of an oblique.

[00:43:32] Speaker 02:
The expansion member moves on this apocalypse with respect to the upper and lower body.

[00:43:38] Speaker 02:
And therefore, it's an oblique movement.

[00:43:41] Speaker 02:
Or at a minimum, there is evidence to support the submission to a jury, and the court erred in dismissing that claim as the basis of summary judgment.

[00:43:51] Speaker 02:
There's a corollary issue with regard to damages, the synthies, litigations, and licensing.

[00:43:56] Speaker 02:
I think the parties have briefed that.

[00:43:57] Speaker 02:
Unless the court has questions, I won't burden your time with that.

[00:44:00] Speaker 02:
Thank you.

[00:44:01] Speaker 02:
Thank you, Your Honor.

[00:44:16] Speaker 03:
Give us the site.

[00:44:18] Speaker 03:
We don't have to take your time for this.

[00:44:20] Speaker 03:
Because there are different things in the appendix.

[00:44:24] Speaker 03:
Your reference that we didn't let you talk about because we assumed in our hypothetical that didn't exist.

[00:44:28] Speaker 03:
But when you're saying the oral instruction and the other instructions, what are the sites for that in the appendix?

[00:44:33] Speaker 04:
Sure.

[00:44:34] Speaker 04:
So the oral instruction is from appendix page 4946.

[00:44:39] Speaker 04:
Those are the final

[00:44:41] Speaker 04:
instructions where the court said you must decide whether any of these items which have been proffered by Globus serve to invalidate.

[00:44:49] Speaker 03:
Is that the same as the final jury instruction, which is at appendix 28 in continuous?

[00:44:57] Speaker 03:
It's 49, and 35, and 36.

[00:44:59] Speaker 01:
OK.

[00:44:59] Speaker 01:
All right.

[00:45:00] Speaker 04:
Yeah, and apologies.

[00:45:02] Speaker 04:
I think some of the transcript pages are repeated in a few different places here.

[00:45:06] Speaker 04:
On page.

[00:45:11] Speaker 04:
Your Honor, you refer to Appendix Page 28.

[00:45:13] Speaker 04:
49, 46.

[00:45:20] Speaker 04:
Right, so I think there are three key pages from the final instructions.

[00:45:25] Speaker 04:
It's Appendix Page 49, 35.

[00:45:27] Speaker 04:
That's where the court says that invalidity infringement should be addressed as separate questions and should be answered separately by you, the jury.

[00:45:36] Speaker 04:
On Appendix Page 49, 46, that's where the court says you must decide

[00:45:41] Speaker 04:
whether there is an invalidity here.

[00:45:44] Speaker 04:
And critically, I think the next portion to focus on is 4956, which is the next page over.

[00:45:51] Speaker 04:
That's where the court gives a very clear conditional instruction as to damages.

[00:45:56] Speaker 04:
The court says, if you find that flexus spine has proven infringement of one of the asserted claims and Globus has not shown that the claim to be invalid, then you must consider what amount of damages to award to flexus spine.

[00:46:09] Speaker 04:
I really think it's that instruction which makes this all clear because it's not as if the issue just wasn't considered how to do a conditional instruction.

[00:46:16] Speaker 04:
It was considered very clearly and it was put into the final instructions when the parties were talking about damages as opposed to the substantive issues in the case.

[00:46:26] Speaker 04:
And that's actually consistent with Globus's proposed verdict forms all the way up until the trial.

[00:46:33] Speaker 01:
So what happens if you have a case where the court gives inconsistent instructions to the jury and neither party objects to the inconsistency?

[00:46:44] Speaker 01:
There must be cases about this.

[00:46:48] Speaker 01:
What happens?

[00:46:49] Speaker 04:
Right, I think that this happens from time to time and the proper resolution is that you try to reconcile the verdict to the instructions that are appropriate.

[00:47:00] Speaker 04:
I don't think that it's just a question of the oral instructions and the verdict form are on equal footing.

[00:47:06] Speaker 04:
For all the reasons that the panel has discussed, there's just no underlying evidence to support the notion that Globus was withdrawing its counterclaim.

[00:47:14] Speaker 04:
That's the real point, is that if we were looking at this in terms of what the right instructions are, there's no question that the right instruction was that the jury needed to address invalidity as a counterclaim, which had been asserted all through the case

[00:47:27] Speaker 04:
We closed on it.

[00:47:28] Speaker 03:
In other words, what if the jury had come back and followed the instruction as written in the verdict form in the first instance?

[00:47:34] Speaker 03:
So they come back, no infringement, everything else is blank.

[00:47:38] Speaker 03:
Right.

[00:47:38] Speaker 03:
Would you have had a basis to get up and scream, they messed up, you have to send them back because they were required to decide the validity issues and they haven't done that?

[00:47:49] Speaker 04:
To be totally fair, I think it would be a much closer case.

[00:47:53] Speaker 04:
I still think that Seventh Amendment waiver principles would operate in our favor.

[00:47:58] Speaker 04:
But that's a perfect question because if that had happened, then we really would be in the domain of waiver.

[00:48:04] Speaker 04:
Our point here is that the jury reconciled an ambiguity in the instructions in the right way because of those oral instructions, because of the way that the case had been presented.

[00:48:14] Speaker 04:
And as the district court itself noted, there had been no withdrawal of the jury demand under Rule 39.

[00:48:19] Speaker 04:
Like, for all of those reasons, the jury did the right thing.

[00:48:22] Speaker 04:
And it was only the district court who came in at the last minute and said, jury, you've got to go back without consulting the parties.

[00:48:27] Speaker 04:
I mean, that's really what happened here and why there was, why we're ending up in this situation.

[00:48:31] Speaker 03:
It's not shocking that he did that when the verdict form is so crystal clear and it's right there in front of the jury.

[00:48:37] Speaker 03:
It's easier than combing through the oral jury instructions.

[00:48:40] Speaker 03:
So it's not a surprise that he did that, right, given what the form looked like.

[00:48:44] Speaker 04:
Well, no, but by that same token, I think the jury came back and did the right thing, right?

[00:48:48] Speaker 04:
That's the main point.

[00:48:49] Speaker 04:
It was the judge who then, after the jury came back, told the jury to, you got to go back and redo this.

[00:48:55] Speaker 04:
But to answer your question, I think that the cases that we cited in our brief that talk about the reconciliation of special interrogatories to some view of the case, right?

[00:49:06] Speaker 04:
That's the constitutional standard.

[00:49:08] Speaker 04:
That's what's required on district court.

[00:49:11] Speaker 04:
So when you ask the question, well,

[00:49:13] Speaker 04:
What do we do when there's inconsistent instructions?

[00:49:15] Speaker 04:
This happens all the time.

[00:49:16] Speaker 04:
You're supposed to reconcile the verdict to some view of the case.

[00:49:20] Speaker 04:
So if we had unquestionably withdrawn our invalidity counterclaim and only presented it as an affirmative defense, but then the jury comes back and answers those questions and we say, Judge, we want you to enter judgment on a counterclaim, we'd have a real problem doing that, right?

[00:49:35] Speaker 04:
But that's not the situation that was presented here.

[00:49:37] Speaker 04:
Here, the counterclaim is fairly presented based on all the evidence, the arguments, and the oral instructions.

[00:49:44] Speaker 04:
The jury rightfully answers those questions, and yet the judge does the opposite of what the Seventh Amendment case law requires, which is it says you got to throw out that verdict and do it over again.

[00:49:54] Speaker 04:
And so if I could just, I know that I'm over my time, but I did want to talk just for a second about the cross-appeal.

[00:50:02] Speaker 03:
respond to the cross-appeal, then your friend is going to get time to rebut your response.

[00:50:06] Speaker 03:
But, um, change the briefs.

[00:50:10] Speaker 04:
Okay.

[00:50:10] Speaker 04:
No question.

[00:50:11] Speaker 04:
We'll stand on our briefs.

[00:50:12] Speaker 04:
Thank you very much.

[00:50:13] Speaker 04:
So no response.

[00:50:16] Speaker 02:
I would love to talk one more time, but as the court said, thank you.

[00:50:20] Speaker 03:
If he doesn't, I don't.

[00:50:22] Speaker 03:
Thank you.

[00:50:24] Speaker 03:
We thank the parties and the cases submitted.

[00:50:28] Speaker 02:
May we be excused, Your Honor?

[00:50:29] Speaker 03:
Yes, please.

[00:50:30] Speaker 03:
Thank you.

[00:50:30] Speaker 03:
Thank you, Your Honor.