[00:00:03] Speaker 02:
Our next case is Georgetown Raleigh.

[00:00:06] Speaker 02:
16-22-97.

[00:00:37] Speaker 04:
th th

[00:01:06] Speaker 02:
Okay, let's let's move on with the next argument Councilor Schwartz you reserve three minutes for rebuttal, correct?

[00:01:23] Speaker 01:
And you're here for Georgetown real equipment Okay, you may proceed good morning honors may please the court on Dan Schwartz with favorite Baker Daniels with me today is Jordan wolf president of

[00:01:37] Speaker 01:
Holland LP, and General Counsel Greg Preves of Holland's corporate parent.

[00:01:44] Speaker 01:
Your Honors, this morning there's no doubt, there's no evidence, no substantial evidence whatsoever upon which the jury's verdict and the district court's denial of our JMO motions, our rule 50 motions, can be affirmed.

[00:01:59] Speaker 01:
And I'd like to just hop right into it.

[00:02:01] Speaker 01:
There are two issues on infringement and one on damages that I'd like to discuss.

[00:02:05] Speaker 01:
The first issue is that

[00:02:08] Speaker 03:
Georgetown could not present any evidence, much less any substantial evidence, of an actual act of infringement because, very frankly... Do you agree that Holland used the plate-cutting system on UP's track in Omaha and then sent the data to Rail Vision for processing?

[00:02:29] Speaker 01:
I believe you're referring to maybe one of the exhibits that's referenced.

[00:02:35] Speaker 01:
use the rail vision system, I want to be sure we're using the right terminology.

[00:02:41] Speaker 03:
I didn't say use.

[00:02:42] Speaker 03:
I said use the plate cutting system.

[00:02:44] Speaker 01:
Right.

[00:02:44] Speaker 01:
I'm sorry, your honor.

[00:02:46] Speaker 03:
And they sent it to rail vision.

[00:02:49] Speaker 01:
Holland collected data on six miles of track outside of Omaha, Nebraska.

[00:02:56] Speaker 01:
Let me be clear, that wasn't part of the Yuma demonstration, which is a big part of this case, but they collected six miles

[00:03:02] Speaker 01:
data for six miles of track.

[00:03:04] Speaker 03:
I assumed Yuma was in Arizona.

[00:03:06] Speaker 01:
Yes, it is.

[00:03:07] Speaker 01:
And so that's why the Omaha track that's referred to is in Nebraska.

[00:03:12] Speaker 01:
Yes.

[00:03:13] Speaker 01:
But I want to be sure that the Court understands that it's a different alleged use by Georgetown than what the Court found to be an actual act of infringement in this case in connection with the Yuma demonstration.

[00:03:25] Speaker 04:
But it was before the jury.

[00:03:28] Speaker 01:
What was, Your Honor?

[00:03:29] Speaker 04:
The fact... The Omaha testing.

[00:03:32] Speaker 04:
the 91 miles west of Omaha, the six miles of tested.

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

[00:03:36] Speaker 01:
Um, that exhibit was before the jury.

[00:03:39] Speaker 01:
And, um, it was also before the jury that there was no evidence whatsoever that that data was processed.

[00:03:47] Speaker 01:
And the claim here requires lights and cameras, which was the data collection part of it that Holland had on its trucks and ran outside of Omaha for six miles.

[00:04:00] Speaker 01:
But there was no data processing done, whether it's in connection with the test in Omaha or Yuma or anywhere else.

[00:04:09] Speaker 01:
Was it sent to our Rail Vision in the UK?

[00:04:14] Speaker 01:
The data from Omaha, that test data, was sent to Rail Vision for data validation purposes.

[00:04:22] Speaker 01:
There's no evidence whatsoever that suggests that Rail Vision actually processed it, and even if

[00:04:29] Speaker 01:
There was some inference, which I don't believe would be in any way correct to make, that there was processing.

[00:04:35] Speaker 01:
There was no evidence that it was processed for plate cut or plate misalignment, which is exactly what the claim requires, because there's nothing that ever came back.

[00:04:45] Speaker 01:
The farthest that that example goes is Holland collecting data and sending it off.

[00:04:52] Speaker 01:
So if you look at the claim structure where there's elements A, B, and C, Holland did A and B. We don't know

[00:04:58] Speaker 01:
And there's no evidence of a sea ever happening.

[00:05:00] Speaker 02:
But you did send the data.

[00:05:02] Speaker 01:
That particular set of data, yes, that was six miles.

[00:05:06] Speaker 02:
So your claim is you didn't use the system because of that.

[00:05:10] Speaker 01:
Well, yes, because the system requires a data processor that has a particular algorithm for processing that data to determine something about a railroad track.

[00:05:21] Speaker 01:
And that particular something is the plate cut, which was never done.

[00:05:24] Speaker 02:
In this argument, how do you avoid centillion data and this court's definition of use?

[00:05:29] Speaker 01:
So, Your Honor, centillion and then the case that it kind of used to build the definition of use of a system claim.

[00:05:38] Speaker 01:
It's really born out of kind of evolutions of technology, right?

[00:05:42] Speaker 01:
In centillion, it was a back-end billing system for a telecommunications company.

[00:05:49] Speaker 01:
And in order to get your

[00:05:51] Speaker 01:
billing information, you either subscribe to the system, and you did it through your computer.

[00:05:57] Speaker 01:
My law firm may be a subscriber of that service, for instance.

[00:06:02] Speaker 01:
And you subscribe by hitting Enter on your computer.

[00:06:05] Speaker 01:
And as soon as you did that, that system operated continuously and automatically.

[00:06:13] Speaker 01:
Electrons were flowing, information was flowing.

[00:06:16] Speaker 01:
There were no intervening act.

[00:06:18] Speaker 01:
There were no intervening actors.

[00:06:21] Speaker 01:
To control the system, all you had to do is put it in motion by hitting enter.

[00:06:26] Speaker 01:
The same thing in NTP.

[00:06:27] Speaker 02:
In Centennial, we say that we don't require that every step of the system be used.

[00:06:35] Speaker 02:
I don't believe that you say every... Or be practiced.

[00:06:39] Speaker 01:
Every step of the system.

[00:06:42] Speaker 02:
Every element of the system.

[00:06:44] Speaker 01:
Every element of the system, Your Honor, with all due respect, in order to find infringement, there has to be.

[00:06:49] Speaker 01:
each of the elements of the claim.

[00:06:50] Speaker 02:
But our law for the term use is that not every element of the system has to be practiced, correct?

[00:07:00] Speaker 02:
You mean by a single party?

[00:07:03] Speaker 02:
Yes, by a party.

[00:07:08] Speaker 02:
And I'm asking because you're saying that you set the date off, you don't know if it was ever tested or not.

[00:07:13] Speaker 02:
Right.

[00:07:14] Speaker 02:
And therefore you're not infringing.

[00:07:17] Speaker 02:
That doesn't seem to comport with Centillion.

[00:07:20] Speaker 01:
Oh, I think it falls squarely within Centillion.

[00:07:23] Speaker 01:
In Centillion, and again, I'll also reference the NTP case because it was the basis for the definition of abuse in these kinds of cases.

[00:07:35] Speaker 01:
The user hit enter on his or her computer to get the billing information.

[00:07:41] Speaker 01:
And in NTP, Blackberry case, somebody would type out a message and hit send.

[00:07:47] Speaker 01:
And as soon as they did that, the system itself operated as if it was supposed to, as it was intended to.

[00:07:56] Speaker 01:
There was nothing that could stop it.

[00:07:58] Speaker 01:
It wasn't like in Centillion, the distinction would have been if I had to mail in a request to Quest, who was the backend processor in Centillion, and say, I'd like you to pull my data.

[00:08:14] Speaker 02:
How is that different in this case?

[00:08:15] Speaker 02:
In Centillion, we said,

[00:08:17] Speaker 02:
that to find use, a party must put the invention into service, i.e.

[00:08:23] Speaker 02:
control the system as a whole and obtain benefit from it.

[00:08:27] Speaker 02:
In your testing, didn't you put it into service?

[00:08:30] Speaker 01:
All we did, all Holland did, was collect data.

[00:08:35] Speaker 01:
Wait a minute.

[00:08:37] Speaker 01:
Yes, sir.

[00:08:38] Speaker 01:
You did contract with UP, yes?

[00:08:44] Speaker 01:
We had data collection contracts.

[00:08:47] Speaker 01:
Contracts that refer to us, Holland, collecting data, not processing data.

[00:08:54] Speaker 01:
If you're referring to the change order, the September 12th change order?

[00:08:58] Speaker 01:
Yes.

[00:08:59] Speaker 01:
Okay.

[00:09:01] Speaker 01:
The change order very specifically says that we are only collecting data.

[00:09:07] Speaker 03:
Georgetown made a big point- Do you agree that it constituted a binding sale?

[00:09:12] Speaker 01:
Of the infringing system?

[00:09:13] Speaker 01:
Absolutely not.

[00:09:16] Speaker 03:
What did you sell to them?

[00:09:19] Speaker 01:
In the change order, we actually sold them nothing.

[00:09:23] Speaker 01:
What that change order was, as testified by Mr. Madarin, was literally a placeholder under a much bigger contract that Georgetown had with Union Pacific for all sorts of testing services, not just anything related to plate cut or plate misalignment.

[00:09:42] Speaker 01:
They measured rail geometry, and they measured rail head profile.

[00:09:46] Speaker 01:
all sorts of different things.

[00:09:47] Speaker 01:
So this was an addendum to that contract.

[00:09:50] Speaker 01:
And it allowed Union Pacific to order certain additional services, again, not limited to rail visions, if it ever wanted it to, for up to $6.9 million worth of those services.

[00:10:02] Speaker 01:
As it turned out, during the entire time of that change order, that Union Pacific never ordered a single one of those services.

[00:10:11] Speaker 01:
So there was not, when you say, what did we sell to them?

[00:10:13] Speaker 01:
We gave them the right to order

[00:10:15] Speaker 01:
or request Holland to collect data.

[00:10:21] Speaker 01:
And they were still, as the evidence also shows, Rail Vision's system was nowhere close to being operational, which is why there's no data coming back, which is why there were no reports that were ever put in at trial showing any process data.

[00:10:41] Speaker 01:
If there were reports showing process data, it surely would have been in front of the jury.

[00:10:45] Speaker 03:
What was the relationship between, uh, your client and rail vision?

[00:10:51] Speaker 03:
I E is it contractual?

[00:10:54] Speaker 01:
Yes, they had contracts.

[00:10:56] Speaker 01:
They had, uh, development contracts and other contracts, contracts also not having anything to do with this technology.

[00:11:03] Speaker 01:
They had contracts that had to do with this technology, this technology being Holland.

[00:11:11] Speaker 01:
would collect data, Rail Vision would try to process the data for certain purposes that it also were hoped to include at some point.

[00:11:21] Speaker 01:
So the contract said, try to process.

[00:11:24] Speaker 01:
Well, they were developing it.

[00:11:27] Speaker 01:
I'm not sure I would say try to process, but Rail Vision was very clear that they were still developing that.

[00:11:33] Speaker 01:
Your Honor, if I may, I mean, just by way of example, I would refer to

[00:11:40] Speaker 01:
appendix at 10754, which is one of the proposals that.

[00:11:48] Speaker 01:
What volume are you?

[00:11:53] Speaker 01:
Volume 9, Your Honor.

[00:11:57] Speaker 01:
Your Honor, 10754.

[00:12:08] Speaker 01:
Oops.

[00:12:19] Speaker 01:
No.

[00:12:20] Speaker 01:
10-7-4.

[00:12:20] Speaker 01:
10-7-5-4.

[00:12:22] Speaker 01:
Oh, I'm sorry.

[00:12:23] Speaker 01:
Volume 10.

[00:12:24] Speaker 01:
You're in the next volume.

[00:12:25] Speaker 01:
Yeah, I'm sorry, Your Honors.

[00:12:26] Speaker 01:
Volume 10.

[00:12:27] Speaker 01:
I apologize.

[00:12:27] Speaker 03:
That's what happens when you have 11 volumes.

[00:12:36] Speaker 01:
And while you're looking, if I may, Your Honors, just a little bit of explanation.

[00:12:40] Speaker 01:
First of all, this is a document from March 12th of 2013.

[00:12:45] Speaker 01:
Why is that relevant?

[00:12:46] Speaker 01:
That's relevant because it's almost a year after the Yuma demonstration, which the district court found was a use.

[00:12:54] Speaker 01:
And it's also six, seven months after that change order between Holland and Union Pacific.

[00:13:02] Speaker 01:
And if you go to...

[00:13:05] Speaker 01:
At 10754, there's kind of a history of what is going on between Holland and UP, and the EC11 truck that's in that first paragraph there, that's Union Pacific's truck, and Holland had helped install some data collection equipment on there so that UP could, on their own, maybe run this on their track without having to use Holland's trucks to do it.

[00:13:32] Speaker 01:
The Holland track star shows that they had

[00:13:35] Speaker 01:
some of the data collection equipment.

[00:13:36] Speaker 02:
Will you install that equipment on there, Holland?

[00:13:38] Speaker 01:
Holland, and I believe, Your Honor, that there was some help from Rail Vision with the actual equipment, but Holland was the one who installed the data collection equipment.

[00:13:49] Speaker 01:
There's no data processing on any of this.

[00:13:51] Speaker 01:
And if you go to the proposals that are set forth in here,

[00:14:00] Speaker 04:
These are the options?

[00:14:02] Speaker 01:
The options, exactly, Your Honor.

[00:14:03] Speaker 01:
It's at 754 and 755 at the bottom of those pages.

[00:14:11] Speaker 01:
Option one refers to RV Rail Vision providing all software and hardware tools and processing resources and development necessary to deliver information to UP.

[00:14:23] Speaker 01:
Rail Vision is processing.

[00:14:25] Speaker 01:
Rail Vision is developing this.

[00:14:27] Speaker 01:
And Rail Vision is the one who's going to be providing information back

[00:14:30] Speaker 01:
to Holland.

[00:14:32] Speaker 01:
Excuse me, to UP.

[00:14:33] Speaker 01:
I apologize.

[00:14:33] Speaker 02:
I don't see how this helps your argument.

[00:14:35] Speaker 02:
I don't see where you're going with this.

[00:14:39] Speaker 02:
This is an offer from Holland.

[00:14:42] Speaker 02:
And you're dealing with Centelian.

[00:14:45] Speaker 02:
Centelian defines the use of a system claim, whether a party controls a system as a whole or obtain a benefit from it.

[00:14:55] Speaker 02:
This document seems to me to show control and benefit.

[00:15:00] Speaker 01:
Control is showing the cases like Centillion and NTP.

[00:15:06] Speaker 02:
It's a contract.

[00:15:06] Speaker 02:
You're negotiating.

[00:15:07] Speaker 02:
You're telling them how to... If I may, I'm sorry.

[00:15:11] Speaker 01:
I apologize.

[00:15:13] Speaker 01:
If all we're doing is relying on contracts, there are other... That's not what Centillion covers.

[00:15:19] Speaker 01:
Centillion is not about contractual relationships, mere contractual relationships.

[00:15:23] Speaker 01:
It's about control.

[00:15:25] Speaker 01:
It's about control.

[00:15:27] Speaker 01:
If you want to talk about the contractual relationships,

[00:15:29] Speaker 01:
That's a vicarious liability issue.

[00:15:31] Speaker 02:
No, I want to talk about control.

[00:15:33] Speaker 01:
Right.

[00:15:33] Speaker 01:
And there is not a single case based on Centillion that rises or falls on the existence of a contract.

[00:15:40] Speaker 01:
I mean, there are no cases that say just because there's a contract in place.

[00:15:46] Speaker 01:
Let me see if I can give you an example.

[00:15:47] Speaker 03:
Let's just pretend we can call it evidence.

[00:15:52] Speaker 03:
OK.

[00:15:53] Speaker 03:
Rather than rising or falling on existence, it's evidence of a relationship.

[00:15:58] Speaker 01:
Absolutely, Your Honor, evidence of a relationship.

[00:16:00] Speaker 03:
And it's evidence that a party is holding itself out as able to do certain things.

[00:16:10] Speaker 01:
I will respectfully disagree with you, Your Honor.

[00:16:13] Speaker 01:
Holland wasn't saying that it could process data.

[00:16:16] Speaker 01:
All of these say Rail Vision is processing the data.

[00:16:19] Speaker 01:
No, no, no, no, no.

[00:16:21] Speaker 01:
Listen to me again.

[00:16:22] Speaker 01:
I'm sorry, Your Honor.

[00:16:22] Speaker 03:
There's evidence that it can do certain things.

[00:16:27] Speaker 01:
Yes.

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

[00:16:30] Speaker 01:
My response to that, Your Honor, would be, it only did certain things, elements A and B, of the asserted claim here.

[00:16:39] Speaker 01:
There's an element C. And if you, it is not the case.

[00:16:44] Speaker 01:
I'm backing into Centillion again.

[00:16:46] Speaker 01:
No.

[00:16:47] Speaker 01:
If all you're saying, Your Honor, it is not the case, and it is not the law, that a mere contract gives rise to control.

[00:16:57] Speaker 01:
There is no support for that whatsoever.

[00:17:02] Speaker 01:
It may be evidence if the contract suggests it.

[00:17:06] Speaker 01:
But here, these contracts make very clear.

[00:17:09] Speaker 02:
We're arguing against a straw person, as we used to say.

[00:17:16] Speaker 02:
This document, it's got a plaintiff's exhibit number on it.

[00:17:19] Speaker 02:
It went before the jury, correct?

[00:17:21] Speaker 01:
Yes, it was before the jury.

[00:17:23] Speaker 02:
So why can't we say that the jury looked at that and found

[00:17:27] Speaker 02:
That is evidence of control.

[00:17:31] Speaker 02:
Because as a matter, oh, I'm sorry.

[00:17:34] Speaker 02:
In dispute or contrary to your argument, you did everything except to evaluate the data.

[00:17:40] Speaker 02:
You sent the data.

[00:17:41] Speaker 02:
You did everything.

[00:17:43] Speaker 02:
And your argument is we didn't infringe because we didn't evaluate the data.

[00:17:47] Speaker 02:
But you're also telling us that the evaluation process wasn't complete.

[00:17:54] Speaker 02:
Correct?

[00:17:54] Speaker 02:
The evaluation is the most important part of it.

[00:17:56] Speaker 02:
All we were doing was collecting data.

[00:17:58] Speaker 02:
Why are you sending data to a company who you claim doesn't even is able to evaluate it?

[00:18:05] Speaker 02:
They were trying to develop it.

[00:18:06] Speaker 02:
That's option two.

[00:18:09] Speaker 02:
Are you demonstrating that we, Holland, control the system?

[00:18:13] Speaker 02:
I mean, we can even send it to evaluation.

[00:18:15] Speaker 02:
Once they're up and running, this is how it's all going to work.

[00:18:18] Speaker 02:
We send the data.

[00:18:19] Speaker 02:
They evaluate it.

[00:18:20] Speaker 02:
We bill you.

[00:18:21] Speaker 02:
You pay us.

[00:18:22] Speaker 01:
Holland, all of those things, who pays who?

[00:18:26] Speaker 01:
contracts between parties.

[00:18:28] Speaker 01:
None of those things have been used for control.

[00:18:31] Speaker 01:
Control is basically, my colleagues may laugh at me here because I think of it as a Rube Goldberg machine.

[00:18:37] Speaker 01:
Are you guys familiar with Rube Goldberg machines?

[00:18:39] Speaker 01:
You put a ball in one side and it kind of goes through a hole seriously.

[00:18:42] Speaker 01:
Once you put that ball in, it rolls automatically.

[00:18:47] Speaker 01:
And there's nothing anyone can do to stop it.

[00:18:49] Speaker 01:
Here, there were so many things.

[00:18:51] Speaker 01:
In that same exhibit, 10-7-5-4, it talks about

[00:18:56] Speaker 01:
How, when Rail Vision got the data, there was nothing automatic.

[00:18:59] Speaker 01:
There was nothing immediate.

[00:19:01] Speaker 01:
There was nothing that you hit send and go, we had to send it on a plane overseas.

[00:19:06] Speaker 01:
There were 40, for each hundred miles of track.

[00:19:10] Speaker 03:
And I realize I might be arguing to the, to the, to the straw man over here, but I'm, I'm, I'm sitting here thinking of a Rube Goldberg argument and you put it in over here.

[00:19:18] Speaker 01:
Right.

[00:19:19] Speaker 03:
Goes around.

[00:19:21] Speaker 01:
Right.

[00:19:22] Speaker 01:
And, and, and the person can't stop that ball from rolling, can it?

[00:19:25] Speaker 01:
They can't stop it from rolling.

[00:19:27] Speaker 01:
Here, somebody put the ball in, it got to one of the next stops, and somebody had to do something.

[00:19:34] Speaker 01:
And it wasn't Holland.

[00:19:36] Speaker 01:
It was Rail Vision.

[00:19:37] Speaker 01:
And for 100 miles of track at this point, a year after the alleged acts of infringement here, a year after, they still had to spend 42 man hours manually working on this.

[00:19:48] Speaker 01:
There was nothing automatic about this.

[00:19:50] Speaker 02:
OK, let's hear what the other side has to say.

[00:19:53] Speaker 02:
You're over your time.

[00:19:55] Speaker 02:
We took you over that time, so we'll restore you the time.

[00:19:58] Speaker 02:
Thank you, Your Honor.

[00:20:00] Speaker 02:
Let's... Councilor Herberholz.

[00:20:05] Speaker 00:
Good morning.

[00:20:05] Speaker 00:
May it please the Court.

[00:20:06] Speaker 00:
I'd like to emphasize two points during my time this morning.

[00:20:09] Speaker 00:
The first is on the issue of infringement.

[00:20:11] Speaker 00:
The second is on the issue of damages.

[00:20:13] Speaker 00:
And central to each of these two points is that the substantial evidence standard, the standard of review that applies here, warrants affirmance.

[00:20:21] Speaker 00:
This is a case involving a jury verdict, and this court is well familiar.

[00:20:24] Speaker 00:
Fifth Circuit law, which applies here, is especially deferential to a jury's infringement findings.

[00:20:29] Speaker 00:
In fact, it's so deferential to a jury's findings that to prevail on this appeal, Holland needs to demonstrate that the evidence so substantially and overwhelmingly, so strongly and overwhelmingly, I should say, falls in its favor that no reasonable juror could possibly find a favor.

[00:20:44] Speaker 03:
Let me ask you a question where I sort of began in Omaha, and that is that

[00:20:50] Speaker 03:
your opponent's argument that this is only a look to the human demonstration and not to the unknown?

[00:20:57] Speaker 00:
That's correct, Your Honor.

[00:20:58] Speaker 00:
Let me answer that by instructing the court or asking the court to take a look at pages 1135 through 1141 of the record.

[00:21:05] Speaker 00:
In that particular portion, which I can't read in open court, Mr. Mataram, Holland's representative, specifically testifies that Holland collected data for customers that are named in there, sent the data to the Rail Vision Company for processing,

[00:21:20] Speaker 00:
received the results of that processing back and gave that information to customers.

[00:21:24] Speaker 00:
There's a more complete explanation of all the other acts of infringement in Mr. Mataram's testimony on pages 1132 through 1145.

[00:21:32] Speaker 02:
Do you have a volume number?

[00:21:34] Speaker 00:
That's volume two.

[00:21:36] Speaker 00:
Volume two, I'm sorry.

[00:21:38] Speaker 00:
And that is a range.

[00:21:39] Speaker 00:
I know it's about 15 pages that we cited there, but there is substantial evidence in that one portion of Mr. Mataram's testimony alone that Holland made infringing uses of the rail vision systems.

[00:21:49] Speaker 00:
The Yuma demonstration, as the court correctly held, was also an infringing use.

[00:21:53] Speaker 00:
The problem that Holland has is that is the only use that it refers to in its briefing.

[00:21:58] Speaker 00:
It completely ignores all the other evidence of Holland's infringing uses, which we've summarized on pages 36 and 37 of our brief.

[00:22:05] Speaker 00:
Turning to your question, Your Honor, about the Omaha demonstration, I will point out that the argument this morning that that was simply collected for data validation purposes, I believe is what I heard, is a brand new argument.

[00:22:16] Speaker 00:
We've never heard that today.

[00:22:17] Speaker 00:
That was never briefed.

[00:22:18] Speaker 00:
That certainly wasn't brought to the attention of the trial court.

[00:22:21] Speaker 00:
And just like the Yuma demonstration argument that Holland is making and that Georgetown allegedly didn't prove that that data was processed, that's a brand new argument as well.

[00:22:30] Speaker 00:
These are the types of arguments that should have been brought to the court's attention before the case was submitted to a jury because Holland waived them otherwise.

[00:22:38] Speaker 00:
That would have given Georgetown an opportunity to the extent that there were any deficiencies in the evidence, and we don't believe there were,

[00:22:43] Speaker 00:
to cure any of those defects.

[00:22:45] Speaker 00:
But by not bringing these arguments to the attention of the trial court, we had no such opportunity.

[00:22:49] Speaker 00:
So we submit that the arguments about the Yuma processing and this new argument this morning about the Omaha processing were waived, Your Honor.

[00:22:57] Speaker 00:
In addition to the testimony from Mr. Madaram, there is substantial evidence beyond that in the record to show Holland's infringing uses.

[00:23:04] Speaker 00:
You'll find articles in the record showing that Holland was advertising its infringing technology, specifically its real vision plate cutting technology.

[00:23:12] Speaker 00:
Those can be found at pages 10920 through 23 of the appendix.

[00:23:17] Speaker 00:
That's volume 10.

[00:23:18] Speaker 00:
There was also an exchange of correspondence prior to this lawsuit between Holland and Georgetown in an effort to demonstrate that it didn't infringe any claims of Georgetown's 329 patent.

[00:23:29] Speaker 00:
Holland admitted that it was using the real vision systems in its words solely to measure plate cut and that was the focus of the system.

[00:23:36] Speaker 00:
That correspondence can be found on pages

[00:23:39] Speaker 00:
volume 11, pages 10925 through 27 of the record.

[00:23:44] Speaker 02:
In addition to that, there are... Could you address your opponent's argument that they did not infringe because they didn't process or they didn't practice the last element, and that's to process the data?

[00:23:56] Speaker 00:
Yes, Your Honor, and I would direct the Court's attention to the Centillion case.

[00:23:59] Speaker 00:
We believe that the portion of Centillion dealing with the customer, or the subscriber, I should say, is directly on point in that case.

[00:24:06] Speaker 00:
Just like the subscriber in that case who put the infringing system into use by signing up for monthly billing from the telecommunications company, it didn't matter that the backend processing in that case was performed offside or on another computer or using different servers.

[00:24:23] Speaker 00:
The same is true in this case.

[00:24:24] Speaker 00:
It doesn't matter that the processing is taking place in the UK.

[00:24:27] Speaker 00:
It doesn't matter that the data has to be shipped there, that it takes a certain amount of time for that data to get there.

[00:24:33] Speaker 00:
The point is, is that Georgetown presented substantial evidence that Holland was benefiting and controlling from the systems of law.

[00:24:39] Speaker 02:
What are your opponents argument that the process never took place?

[00:24:43] Speaker 00:
Well, I would again refer the court to the section of testimony that we cited there on pages 11, 32 through 45.

[00:24:50] Speaker 00:
Another useful part of the testimony that I think the court should take a look at is on pages 1102, it's in volume two.

[00:24:59] Speaker 00:
And in that particular section.

[00:25:00] Speaker 04:
1102, you said?

[00:25:01] Speaker 00:
Yes, 1103 on volume 2.

[00:25:04] Speaker 00:
And in that particular portion of testimony, Mr. Madderman, Holland's representative, testifies that simply collecting data by itself for customers is not helpful.

[00:25:15] Speaker 00:
He testified that you, quote, can't do anything with that data until it's processed.

[00:25:19] Speaker 00:
So there's more than sufficient evidence for a jury to infer that all of the data that Holland collected from all these demonstrations and uses was processed by the Rail Vision Company.

[00:25:27] Speaker 00:
That's the entire point of the arrangement that Holland had with the Rail Vision Company.

[00:25:33] Speaker 00:
On the issue of damages, Your Honor, the district court also got it right in determining that Georgetown presented sufficient evidence and substantial evidence on each of the four Panduit factors.

[00:25:42] Speaker 00:
Only two of those factors are in dispute in this case.

[00:25:45] Speaker 00:
The first factor on consumer demand and the fourth factor on the calculation of lost profits.

[00:25:50] Speaker 00:
Respectfully, I don't think that there's any dispute here about demand for the patented invention.

[00:25:55] Speaker 00:
Georgetown elicited substantial testimony.

[00:25:58] Speaker 02:
Wasn't the evidence on lost profits the actual

[00:26:02] Speaker 02:
value.

[00:26:03] Speaker 02:
It was at zero, correct?

[00:26:05] Speaker 00:
No, we don't believe it was at zero.

[00:26:06] Speaker 00:
The evidence of lost profits that Dr. Ugone, Georgetown's damages experts, discussed was based on a series of several acts of infringement by Holland leading up to and ultimately culminating in a change order contract that Holland ended up getting with Union Pacific.

[00:26:23] Speaker 00:
And Dr. Ugone specifically talked about the evidence that he considered in

[00:26:28] Speaker 00:
in relation to the Yuma demonstration and the change order and said that he did not limit his opinions to those particular acts of infringement.

[00:26:34] Speaker 00:
And that took, you can see that in the record on pages 16, 19 through 20.

[00:26:39] Speaker 00:
And also I'll point out that in the calculation of lost profits, this isn't a case where Dr. Ugone just simply made up numbers that were speculative or not based on economic reality.

[00:26:48] Speaker 00:
He analyzed the relevant industry, the market.

[00:26:51] Speaker 00:
He analyzed Georgetown's contracts that it already had.

[00:26:54] Speaker 00:
with four out of the seven class one railroad companies, and he analyzed the terms of those.

[00:26:58] Speaker 00:
He analyzed the terms of the proposals that Georgetown sent to Union Pacific shortly before Union Pacific awarded the work to Holland and not to Georgetown.

[00:27:07] Speaker 00:
Based on that evidence, he came up with a calculation of the total revenues that Georgetown would have realized under its contract with Union Pacific.

[00:27:13] Speaker 03:
How do you deal with their argument that the compensation they received before that preliminary injunction went into effect was for work on trucks that did not have

[00:27:24] Speaker 03:
plate cutting technology.

[00:27:26] Speaker 00:
I don't think there's any record support for that, Your Honor.

[00:27:30] Speaker 00:
And the other point that I want to make here is Holland spends considerable time arguing that Georgetown isn't entitled to loss profits simply because Holland allegedly didn't make any revenue under its change order contract with Union Pacific.

[00:27:43] Speaker 00:
The problem with that, as we've explained in our briefing, is that that focuses the inquiry entirely away from Georgetown, the patent owner, and puts it entirely on the acts of the accused infringer, or the infringer in this case.

[00:27:54] Speaker 00:
And Section 284 of the Patent Act is designed to compensate and make the patent owner whole for the acts of infringement.

[00:28:01] Speaker 00:
If we completely ignore all of Holland's acts of infringement leading up to the change, we're going to focus on what happened after the missing patent.

[00:28:08] Speaker 02:
Is this a two-player market?

[00:28:10] Speaker 00:
It is, Your Honor.

[00:28:11] Speaker 00:
It is, Your Honor.

[00:28:11] Speaker 00:
It is a two-player market.

[00:28:13] Speaker 02:
Is Georgetown and Holland?

[00:28:15] Speaker 00:
It is Georgetown and Holland competing for a small handful.

[00:28:18] Speaker 02:
So any sale that, if they're infringing,

[00:28:22] Speaker 02:
any cell gained by Holland is at your loss.

[00:28:25] Speaker 00:
Exactly, Your Honor.

[00:28:26] Speaker 02:
But if they don't show that they gained a cell, it's a too clear market, and they've established, and I think the evidence may show that they had no cells, no eventual cells.

[00:28:40] Speaker 00:
Right.

[00:28:41] Speaker 00:
I understand the question.

[00:28:42] Speaker 00:
What I would go back to is that Georgetown satisfied each of the four Panduit factors, and in doing so created a but-for presumption

[00:28:49] Speaker 00:
that it would have made the profits that Georgetown's expert testified about.

[00:28:52] Speaker 02:
I realize that many cases... Who would have thought your argument is they had no sales because of the preliminary injunction that went into effect?

[00:29:00] Speaker 00:
Yes, Your Honor, that is true that there were no sales after the preliminary injunction went into effect.

[00:29:04] Speaker 00:
And what the preliminary injunction did for Georgetown is that it ensured that Georgetown wouldn't suffer any economic harm that was impossible to calculate.

[00:29:12] Speaker 00:
It ensured that Georgetown, for example, was protected from

[00:29:15] Speaker 00:
Holland using its infringing technology to strengthen its business relationship with Union Pacific to ensure that Holland wasn't able to provide ancillary sales of other equipment and processes.

[00:29:25] Speaker 00:
And the same is true for Georgetown.

[00:29:27] Speaker 02:
If there's no lost sales, then isn't any methodology you have to establish lost profits?

[00:29:34] Speaker 02:
Is it that speculative?

[00:29:36] Speaker 00:
We don't believe it's speculative at all, Your Honor.

[00:29:38] Speaker 00:
In fact, we would go back to Panduit and point out that because Georgetown satisfied each of those factors, including a calculation of lost profits,

[00:29:44] Speaker 00:
that Georgetown met its prima facie burden of satisfying Panduit, and that then shifted the burden to Holland to demonstrate that that calculation was unreasonable.

[00:29:53] Speaker 00:
And the problem Holland has on the calculation is that it presented no alternative evidence or no alternative calculation to the jury.

[00:29:59] Speaker 00:
Instead, what it did is it simply challenged the sufficiency of Georgetown's evidence of causation.

[00:30:05] Speaker 00:
But as this court has held, that's a classical jury question that the jury has to resolve, not Holland's expert.

[00:30:13] Speaker 00:
And again, just to finish up my point on the first Panduit factor on consumer demand, again, there is substantial evidence on the record that consumers were demanding Georgetown's patented technology.

[00:30:24] Speaker 00:
It's Aurora technology.

[00:30:25] Speaker 00:
And Holland stipulated at trial that that technology practices claim 16 of the 329 patent.

[00:30:30] Speaker 03:
I'm guessing that your two seller markets

[00:30:38] Speaker 03:
is also your response to their argument that the UP contract was non-exclusive.

[00:30:44] Speaker 00:
That's exactly right, Your Honor.

[00:30:49] Speaker 00:
So, Your Honor, unless the Court has any further questions, I'll cede my time to Holland.

[00:30:53] Speaker 00:
We don't have any additional questions.

[00:30:55] Speaker 00:
Thank you.

[00:31:02] Speaker 02:
Attorney Schwartz, you have two minutes.

[00:31:04] Speaker 01:
Thank you, Your Honor.

[00:31:09] Speaker 01:
With respect to Omaha, the document, there's no new arguments here.

[00:31:18] Speaker 01:
The document is an email only between Holland, not between anyone at Real Vision, not between anyone at Union Pacific.

[00:31:29] Speaker 01:
And it talks about testing six miles of track.

[00:31:33] Speaker 01:
It talks about the problems they were having with the lasers and the lights.

[00:31:36] Speaker 01:
They were just trying to get, the document reads for itself that

[00:31:39] Speaker 01:
They're just trying to see if this system worked.

[00:31:42] Speaker 01:
That's all it was.

[00:31:43] Speaker 01:
It's not a new argument.

[00:31:45] Speaker 01:
That's exactly what the document says on its plain face.

[00:31:50] Speaker 01:
I would also suggest, Your Honors, that here, the issue really is this claim requires three elements.

[00:31:58] Speaker 01:
And that third one is really important.

[00:32:01] Speaker 01:
It's the process.

[00:32:03] Speaker 01:
And to say only that Mr. Madden testified to this,

[00:32:08] Speaker 01:
which isn't linked to a single particular project, a singular particular customer.

[00:32:13] Speaker 01:
These were prophetic statements that Mr. Madderm talked about.

[00:32:16] Speaker 01:
Well, yes, in our relationship with Rail Vision, we would like to have them process the data and send it back to our customers.

[00:32:22] Speaker 01:
That's what we're trying to do.

[00:32:24] Speaker 01:
But if there was really processed data, if there was really a report showing what ties were graded in what way, it would have been in front of the jury.

[00:32:35] Speaker 01:
They don't have it.

[00:32:36] Speaker 01:
Union Pacific, the one customer here that they're relying on everything for with respect to their damages claim and the infringement case, we don't see any data processed by Rail Vision.

[00:32:49] Speaker 01:
That is fatal, absolutely fatal to them.

[00:32:53] Speaker 01:
They could have brought Union Pacific to trial.

[00:32:55] Speaker 01:
They didn't.

[00:32:56] Speaker 01:
They could have asked them what they did.

[00:32:57] Speaker 01:
They didn't.

[00:32:57] Speaker 01:
They've never alleged somehow we withheld the reports.

[00:33:02] Speaker 01:
All they did was ask Mr. Maddurham,

[00:33:03] Speaker 01:
some prophetic questions.

[00:33:04] Speaker 01:
I would refer the court to the Ako Brands case versus ABA locks that talks about the specific evidence of infringement.

[00:33:13] Speaker 01:
It can't, in that case, there were ways to infringe and ways not to infringe.

[00:33:19] Speaker 01:
And the court very clearly said, you have to have express evidence of direct infringement.

[00:33:25] Speaker 01:
It can't be these kind of pie in the sky statements that somebody may have done it.

[00:33:31] Speaker 01:
On damages, Your Honors,

[00:33:33] Speaker 01:
This is entirely speculative.

[00:33:37] Speaker 01:
You are 100% right that the issue of Holland not earning a single dollar of revenue, we're not talking about profits, revenue, means that if you swapped out Holland for Georgetown in that change order at that moment, Union Pacific still would have ordered zero.

[00:33:56] Speaker 01:
And your honor's right.

[00:33:57] Speaker 01:
It was a non-exclusive contract.

[00:33:59] Speaker 01:
And what do we know about this whole process?

[00:34:01] Speaker 01:
Union Pacific wanted to they could have walked over to Georgetown who they also had a pre-existing relationship with is set forth in the record with some other parts of their business Said we want you to provide this whether before or after the preliminary injunction, and it simply didn't happen.

[00:34:18] Speaker 01:
Okay That's that's all I have Thank you very much.

[00:34:21] Speaker 02:
Thank you very much