[00:00:02] Speaker 03: The next case for argument is 161533 Navico versus ITC. [00:00:38] Speaker ?: Fuck. [00:01:30] Speaker 03: Okay, we settled. [00:01:39] Speaker 03: Mr. Stevens, whenever you're ready. [00:02:12] Speaker 02: Good morning, and may it please the court. [00:02:15] Speaker 02: The commission correctly held that Garmin's down view products infringed two of Navico's patents. [00:02:20] Speaker 02: But the commission erred in holding against Navico in three respects. [00:02:24] Speaker 02: And this appeal concerns those three respects. [00:02:27] Speaker 02: First, the commission erred by conflating the rigorous intent requirement required of induced infringement with the knowledge requirement of contributory infringement. [00:02:37] Speaker 02: While the commission held that, quote, Garmin lacked the intent to infringe, end quote, [00:02:43] Speaker 02: This court's precedent is clear that only proof of a defendant's knowledge, not intent, is required in order to establish contributory infringement. [00:02:52] Speaker 02: And that precedent is in accord with the Supreme Court's seminal case in the area. [00:02:58] Speaker 03: Well, let's assume that we hear but don't accept your interpretation of what the commission said. [00:03:04] Speaker 03: In other words, an errant phrase, but that what the commission applied was really the knowledge requirement. [00:03:11] Speaker 03: Where were you left with respect to your arguments on contributory? [00:03:16] Speaker 02: So your honor, the only reason the commission found against us as to contributory infringement that I can see from my reading is based upon the alleged good faith belief of non-infringement. [00:03:27] Speaker 02: So even putting aside the language that you used. [00:03:29] Speaker 03: So that has to do with knowledge of infringement, not intent, right? [00:03:34] Speaker 02: I would disagree with that. [00:03:35] Speaker 02: I think one subjective belief necessarily goes to intent and not knowledge. [00:03:41] Speaker 02: I think the knowledge requirement is satisfied when you're told something, when you're informed of a claim. [00:03:46] Speaker 02: Whether or not you believe it, whether or not you subjectively agree with that accusation goes to intent, not to knowledge. [00:03:53] Speaker 02: So once Garmin was put on notice of the patents and put on notice of our claim of infringement, the knowledge requirement was satisfied. [00:04:00] Speaker 03: How does that juxtapose with the reading of Comel that your friend cites? [00:04:05] Speaker 03: Because there is language in Comel as there not. [00:04:07] Speaker 03: I mean, the issue there was induced infringement. [00:04:10] Speaker 03: but in informing the Supreme Court's judgment as to the requirements of inducement, they talked about the knowledge requirement being the same knowledge requirement as in contributory, and that knowledge requirement being knowledge that you're infringing. [00:04:26] Speaker 02: Yes, Chief. [00:04:27] Speaker 02: Obviously, in Kamel, the question before the Supreme Court was inducement, not contributory. [00:04:32] Speaker 02: And you're absolutely correct. [00:04:33] Speaker 02: The Supreme Court said the knowledge requirement is indeed the same. [00:04:37] Speaker 02: But then there's a separate intent requirement when it comes to induced infringement. [00:04:41] Speaker 02: So the language, both in global tech and common law, again, neither of which cert was granted to address contributory infringement, I believe the language is consistent. [00:04:48] Speaker 02: For example, in global tech, the Supreme Court said, again, in DICTA, but as it relates to contributory infringement, the Supreme Court said, we proceed on the premise that Section 271C requires knowledge of the existence of the patent. [00:05:03] Speaker 02: That's what the Supreme Court said about Arrow 2. [00:05:06] Speaker 05: And it also said that you have to have knowledge that the action was infringing, right? [00:05:13] Speaker 02: Yes, your honor. [00:05:13] Speaker 05: And that's where the Arrow II court said, once you have a cease and desist... Well, how do you have knowledge that the action was infringing if all you have is a contention from the other side that it is infringing? [00:05:26] Speaker 05: How can that be knowledge that you're infringing? [00:05:29] Speaker 02: You have been charged with that knowledge. [00:05:31] Speaker 02: Your subjective belief or subjective disagreement or agreement with that [00:05:35] Speaker 02: It's a separate inquiry that comes in only under 271B and not 271C. [00:05:40] Speaker 05: So you're saying it's a totally different standard for inducement and contributory? [00:05:46] Speaker 02: By the definition of the fact that they're worded differently, yes, the standards are different. [00:05:50] Speaker 02: I would agree that the actual knowledge requirement is the same. [00:05:53] Speaker 02: For each, you must have knowledge of the patent and knowledge of the claim. [00:05:58] Speaker 02: But not knowledge of infringement? [00:06:01] Speaker 02: I don't think you have to have subjective belief [00:06:03] Speaker 05: Now, under the contributory provision, do you have to have knowledge that you're infringing? [00:06:10] Speaker 05: You have to be put on knowledge that there's a claim of infringement as to your conduct. [00:06:14] Speaker 05: Just a claim, not knowledge of infringement, just knowledge of a claim of infringement. [00:06:18] Speaker 02: You have to be told that you're infringing. [00:06:21] Speaker 02: Whether you subjectively disagree with that would go to 271B and not 271C. [00:06:25] Speaker 03: I mean, there's such clear language in COMAL. [00:06:28] Speaker 03: I mean, page 9 in the slip opinion I have. [00:06:31] Speaker 03: when they're talking about global tech and the government's pushback as it did in Como about global tech. [00:06:37] Speaker 03: It says, qualifying or limiting its holdings that government and Como seek to do would lead to the conclusion, both in inducement and contributory infringement, that a person or entity could be liable even though he did not know the acts were infringing. [00:06:51] Speaker 03: In other words, even if the defendant reads the patent's claims differently from the plaintiff and that reading is reasonable, he could still be liable because he knew the acts might infringe. [00:07:01] Speaker 03: Global tech requires more. [00:07:03] Speaker 03: It requires proof the defendant knew the acts were infringing. [00:07:08] Speaker 02: Again, I don't believe that the Supreme Court meant to undo 50 years of precedent by a few sentences. [00:07:13] Speaker 03: Well, you're relying on Arrow, and I guess maybe we have a mixed analysis of Arrow. [00:07:17] Speaker 03: I understand that at some point in the litigation at the district court, they talked about the cease and desist letter, but there, [00:07:26] Speaker 03: There was an opinion of counsel in Arrow, but the opinion of counsel was, you are infringing. [00:07:32] Speaker 03: I mean, there was a cease and desist letter, which I think was never referenced by the Supreme Court. [00:07:37] Speaker 03: But it's not the facts of these case. [00:07:40] Speaker 03: I mean, I'm not clear what in Arrow. [00:07:42] Speaker 03: Arrow does not say, once you get a cease and desist letter, you're on notice that you might be infringing, and therefore you can be liable for contributory infringement. [00:07:51] Speaker 02: Well, I would have two disagreements with that. [00:07:53] Speaker 02: The first is, I do think the Supreme Court opinion said, [00:07:56] Speaker 02: Once you receive the cease and desist letter, there is no defense to the signature requirement of 271C. [00:08:02] Speaker 02: I do think that's explicitly in the opinion. [00:08:06] Speaker 02: In fact, I think it says, the knowledge requirement affords Arrow no defense with respect to sales made after January 2nd, 1954, which is the day they received the cease and desist letter. [00:08:18] Speaker 02: As to the district court proceedings, [00:08:20] Speaker 02: Yes. [00:08:21] Speaker 03: But there was no argument in Arrow that they were not infringing at the time they received. [00:08:26] Speaker 03: I mean, they didn't take the position they were not infringing in time of the cease and desist letter. [00:08:30] Speaker 03: Indeed, in Arrow, my recollection is that they sought an opinion of counsel after they received the letter. [00:08:37] Speaker 03: The opinion of counsel was, yes, you are infringing. [00:08:40] Speaker 03: And then they proceeded to try to get a license. [00:08:43] Speaker 03: And failing to get a license, they decided to design around [00:08:46] Speaker 03: Am I stating the aero facts, as you would call them? [00:08:50] Speaker 02: Slightly differently. [00:08:52] Speaker 02: I suspect you're more familiar with it than I, but I'll tell you my understanding of it, which is there was design A, and yes, the lawyer said, that's no good. [00:09:00] Speaker 02: And the lawyer said to avoid infringement, come out with design B. And if you really want to avoid infringement, come out with design C. And the district court found that each of designs A, B, and C infringed. [00:09:09] Speaker 02: So with A, you're right. [00:09:10] Speaker 02: They got a cease and desist letter. [00:09:12] Speaker 02: The lawyer agreed with it and said, you need to stop. [00:09:15] Speaker 02: Put that aside. [00:09:15] Speaker 03: Yeah, so of course the liabilities started running from that date because that was the date in which they weren't disputing. [00:09:21] Speaker 03: They got the notice of cease and desist lawyer. [00:09:24] Speaker 03: The lawyer tells them, yep, you're infringing. [00:09:26] Speaker 03: Yep, they know they're infringing. [00:09:27] Speaker 02: But the Supreme Court affirmed the finding of contributory infringement as to designs B and C as well, where the judge said that they got the cease and desist letter. [00:09:37] Speaker 02: The lawyer instructed them specifically to change from design A to design B. [00:09:42] Speaker 02: They did so, and there was still infringement under the doctrine of equivalence. [00:09:47] Speaker 02: Then they switched from design B to design C, and the district judge again said, no, that still infringes. [00:09:52] Speaker 02: And again, the Supreme Court, with respect to all three designs, and I give you A as a different circumstance, but with respect to all three designs, the knowledge requirement affords Arrow no defense. [00:10:03] Speaker 05: So maybe Arrow is confusing. [00:10:06] Speaker 05: But we have an explicit statement in Comel as to what the rule is, and you're asking us to [00:10:12] Speaker 05: disregard that as, quote, dictum. [00:10:14] Speaker 05: It is not our job, and we've said this in bank, it is not our job to ignore what the Supreme Court tells us the rule is, is dictum. [00:10:24] Speaker 05: Right? [00:10:24] Speaker 02: I think it would be unwise to ignore what the Supreme Court says. [00:10:28] Speaker 02: I certainly agree with that. [00:10:29] Speaker 02: I don't think that one paragraph is particularly clear that it's being applied to contributory infringement. [00:10:34] Speaker 02: Yes, the paragraph starts with the analysis of Arrow and the Solicitor General's comments about that. [00:10:40] Speaker 02: But as the paragraph continues, I believe it's talking about the actual case and circumstance before the Supreme Court, namely induced infringement and not contributory infringement. [00:10:49] Speaker 03: Can I move you to the other basis for contributory, which is the non-infringing alternatives? [00:10:55] Speaker 03: Absolutely. [00:10:57] Speaker 02: Prior to the Green Brief in this case, Garment had never contested that its transducers lack substantial non-infringing use. [00:11:04] Speaker 02: They had for its hit units, but this had never come up in the entire case. [00:11:08] Speaker 02: But it's your burden, isn't it, to show a lack of non-infringing alternatives? [00:11:13] Speaker 02: Absolutely it is. [00:11:14] Speaker 02: So how did you carry that burden? [00:11:17] Speaker 02: Well, in every brief we explained it. [00:11:20] Speaker 02: We cited to CX95, we cited to CX39, we cited to CX40, we cited to CX97. [00:11:26] Speaker 05: I've read the testimony and it doesn't seem to me that it's clear that there are no non-infringing alternatives. [00:11:33] Speaker 05: What testimony is clear that there are no non-infringing alternatives? [00:11:37] Speaker 02: The testimony said that the only thing one could do was to plug one of these transducers into a legacy device, which would not even charge the transducer that's at issue in this case. [00:11:48] Speaker 02: So I don't think that's a substantial non-infringing use. [00:11:50] Speaker 02: The other evidence is clear that the transducers in question in this case are only compatible with a certain range of HID units. [00:11:57] Speaker 02: And so those are the only uses for it. [00:12:00] Speaker 05: Everything else would be... So you had no direct testimony that there were no substantial non-infringing uses? [00:12:06] Speaker 02: We had testimony of our expert. [00:12:08] Speaker 02: We had three documents from Barber. [00:12:09] Speaker 05: You had testimony from your expert that there were no non-inferential uses? [00:12:13] Speaker 02: Yes, we did. [00:12:13] Speaker 05: Where's that? [00:12:16] Speaker 02: In the record, it is, and I have the, I have the APPX as well. [00:12:21] Speaker 02: It's CX95. [00:12:21] Speaker 02: It's Dr. Vincent's testimony. [00:12:23] Speaker 02: Both the staff as well as APPX7021. [00:12:26] Speaker 02: No, no, no, no. [00:12:27] Speaker 02: Where? [00:12:27] Speaker 02: Where? [00:12:27] Speaker 05: What volume of the appendix? [00:12:29] Speaker 02: What volume of the appendix? [00:12:31] Speaker 02: I can give you the appendix number. [00:12:32] Speaker 02: I don't know particularly which volume it is. [00:12:34] Speaker 02: It's APPX 7021 through 22. [00:12:39] Speaker 02: There's some other testimony. [00:12:40] Speaker 05: You're supposed to come to the argument with the ability to show us where to find the stuff you're referring to. [00:12:47] Speaker 05: What is the number? [00:12:49] Speaker 05: 7021 through 22. [00:12:52] Speaker 02: Volume 3. [00:12:52] Speaker 02: 701? [00:12:56] Speaker 02: 7021 through 22. [00:13:00] Speaker 02: I'd also note footnote one of our gray brief includes all the citations to every brief. [00:13:05] Speaker 02: No, no. [00:13:06] Speaker 02: That doesn't do it. [00:13:07] Speaker 05: I don't want to have citations read to me. [00:13:09] Speaker 05: I want you to show me where your witness said it. [00:13:12] Speaker 05: OK. [00:13:12] Speaker 05: 70 what? [00:13:14] Speaker 02: 7021 through 22. [00:13:15] Speaker 02: 7021. [00:13:17] Speaker 02: And then there's also. [00:13:20] Speaker 02: No, no, no, no, no. [00:13:21] Speaker 05: Where? [00:13:22] Speaker 05: OK. [00:13:23] Speaker 05: I have that in front of me. [00:13:23] Speaker 05: Where does he say that? [00:14:02] Speaker 02: So in question 263, he's asked about... It's question 266, right? [00:14:08] Speaker 02: Sure. [00:14:08] Speaker 02: It starts with 263. [00:14:10] Speaker 02: It goes through question 266. [00:14:12] Speaker 02: It relates to different products. [00:14:15] Speaker 02: So question 265 relates to the transducers themselves. [00:14:19] Speaker 02: Question 266 relates to the transducers as well. [00:14:26] Speaker 02: So this is our expert's testimony in the record at APPX4887. [00:14:30] Speaker 02: There's the transducer selection guide. [00:14:32] Speaker 02: It tells you that the only compatible HID units with these products are indeed the HID units that support the technology. [00:14:39] Speaker 02: And once they're mated, that's infringement right there. [00:14:42] Speaker 05: Before you sit down, can I ask you to address the Commission's finding that certain claims of the 550 were obvious over the firearm? [00:14:53] Speaker 02: Happy to, Your Honor. [00:14:55] Speaker 02: The Commission made two errors with respect to Tucker and then made a third in combining the two. [00:14:59] Speaker 02: The two principal errors with respect to Tucker were first the math [00:15:02] Speaker 02: The math dictates that the transducer in Tucker cannot possibly be a down-stand transducer. [00:15:07] Speaker 02: The math, which has never been disputed, in fact cited favorably in the Commission opinion, dictates that at most the transducer in Tucker would have been placed with the middle of its beam 30 degrees below the horizon. [00:15:21] Speaker 02: And no one's disputed that math. [00:15:23] Speaker 02: The Commission takes a two-word phrase from the concluding paragraph out of context [00:15:28] Speaker 02: and somehow just walks after acknowledging the math. [00:15:31] Speaker 05: So you're saying their factual findings aren't supported by substantial evidence? [00:15:35] Speaker 02: The factual finding in that regard is not supported by substantial evidence. [00:15:37] Speaker 02: OK, what else? [00:15:38] Speaker 02: Second. [00:15:39] Speaker 02: I beg your pardon? [00:15:40] Speaker 02: What else? [00:15:41] Speaker 02: Second, Garmin always told the commission in the ALJ that Tucker was not a phased array. [00:15:47] Speaker 02: That was their position throughout their briefing. [00:15:49] Speaker 02: Now that we've arrived at this court, Garmin in its red brief here and the blue brief from the 1572 appeal says repeatedly, [00:15:57] Speaker 02: that Tucker is indeed a phased array. [00:15:59] Speaker 02: And if that's the case, it can't possibly either render obvious or anticipate because it's a different type of system. [00:16:06] Speaker 02: So if you accept Garmin's repeated admission in the Federal Circuit briefing... But the commission didn't. [00:16:11] Speaker 05: They found that Tucker was not a phased array, right? [00:16:15] Speaker 02: I don't believe there was an explicit finding one way or the other on that. [00:16:20] Speaker 02: What's the third thing? [00:16:21] Speaker 02: The third thing would be the combination of the two. [00:16:24] Speaker 02: The ALJ found that Garmin had waived the issue and not presented any motivation to combine Tucker and Vets. [00:16:30] Speaker 02: In fact, the ALJ went further and found a reason that they would never be combined. [00:16:33] Speaker 02: Garmin, in its appeal to the Commission and its petition for review, again, never presented a motivation to combine. [00:16:40] Speaker 02: The Commission, to its spot, they found one, but in one sentence, citing nothing. [00:16:45] Speaker 02: And so that is also error in the fact that these two things are very different devices. [00:16:49] Speaker 02: One is huge. [00:16:50] Speaker 02: It has to be huge based upon its physics. [00:16:52] Speaker 02: It's literally over five feet long. [00:16:54] Speaker 02: has hundreds of pieces, has 27 pairs of wires going to them. [00:16:57] Speaker 05: What does that have to do with whether it comes within the claims? [00:17:02] Speaker 02: This has to do with the motivation to combine. [00:17:04] Speaker 02: It also has to do with whether it comes into the claims, because you need all that functionality to make it a phased red, which is why it's not, why itself is not in the claims. [00:17:12] Speaker 02: But putting that aside, there's also a reason why they would not be combined, because there's no way to take the Tucker transducer and make it in any way work with the VET system. [00:17:22] Speaker 02: I notice my time is over, Your Honor. [00:17:26] Speaker 03: Okay, we'll read the store on the rebuttal time. [00:17:32] Speaker 03: Thanks for your time. [00:17:38] Speaker 03: You all are splitting your time. [00:17:39] Speaker 03: We'll run the clock independently so you've got eight minutes. [00:17:42] Speaker 03: Thank you. [00:17:44] Speaker 01: May it please the court, my name is Lucy Grace Noyola and I represent the APOLE, the International Trade Commission. [00:17:50] Speaker 01: On the issue of contributory infringement. [00:17:53] Speaker 05: Since we're just talking about the invalidity issue, why don't you address that? [00:17:59] Speaker 01: Sure. [00:17:59] Speaker 01: On the issue of obviousness, substantial evidence supports the Commission's findings underlying its obvious determination as to five claims of the 550 patent. [00:18:13] Speaker 01: Specifically, Tucker expressly discloses rotating the axis of the acoustic beam [00:18:19] Speaker 01: from the horizontal to the downward vertical. [00:18:21] Speaker 01: And that's an APPX5323. [00:18:25] Speaker 01: And returning a linear transducer vertically downwards as a vertical sounder to obtain an improved high resolution image. [00:18:33] Speaker 01: And that's an APPX5330. [00:18:38] Speaker 01: The commission's findings are also supported by expert testimony as to Tucker's expressed disclosures and a motivation to combine Betz and Tucker. [00:18:47] Speaker 01: In addition, as part of its obviousness analysis, the commission considered several objective indicia, and the sum of that objective indicia did not overcome the strong prima facie showing of obviousness. [00:18:59] Speaker 01: Tell us about the motivation. [00:19:00] Speaker 01: The motivation is supported in the record in two areas. [00:19:04] Speaker 01: First, it's in Tucker. [00:19:06] Speaker 01: Tucker says to rotate, to turn the vertical, the linear transducer downwards to obtain a high resolution image. [00:19:13] Speaker 01: That's the exact problem that the patent here was trying to resolve. [00:19:17] Speaker 01: The patent makes clear that it was well known that circular transducers or traditional transducers at the time had image quality problems. [00:19:25] Speaker 01: So a person having ordinary skill in the art would turn to Tucker and see that disclosure and say, look, here's something that we can do to improve the image. [00:19:33] Speaker 01: There's also expert testimony from Dr. Tice. [00:19:36] Speaker 01: He also referred to those same disclosures and said that the person of ordinary skill in the art would understand that and also find it obvious to combine bets with Tucker. [00:19:52] Speaker 03: Can I turn you back to the contributory issue? [00:19:55] Speaker 03: Sure. [00:19:56] Speaker 03: I can't find it now, but somewhere I recall in the Commission's opinion where it relied on the staff, that there were findings below with regard to non-infringing uses. [00:20:07] Speaker 03: Do you recall that? [00:20:08] Speaker 03: I mean, what was the standing of the evidence with regard to non-infringing uses? [00:20:15] Speaker 01: I don't recall what it was that Your Honor was referring to, but the Commission did not [00:20:20] Speaker 01: address the issue of substantial non-infringing uses in its opinion. [00:20:24] Speaker 03: Right. [00:20:26] Speaker 01: So even if there was evidence as substantial non-infringing uses, and even if knowledge could be presumed, that presumption is a presumption. [00:20:37] Speaker 01: And it can be rebutted with evidence to the contrary. [00:20:40] Speaker 03: Well, I'm reading, I think, from the commission's opinion at Appendix 34. [00:20:46] Speaker 03: I think I got the right case and the right opinion. [00:20:50] Speaker 03: And it says in the middle paragraph, NAVACO challenges the ID's finding of no contributory infringement by Garmin standalone transducers because, according to NAVACO, it was based solely on ID's finding that these products do not satisfy the limitation. [00:21:06] Speaker 03: NAVACO challenge appears solely in a footnote in its petition for review and provides no analysis or evidence to support its claim of contributory infringement. [00:21:16] Speaker 03: What's that about? [00:21:17] Speaker 03: So did the commission just say waiver? [00:21:19] Speaker 01: So here's what happened. [00:21:20] Speaker 01: There were arguments that were made by the parties before the ALJ. [00:21:25] Speaker 01: And you'll hear the issues from Navico and Garmin. [00:21:28] Speaker 01: But the ALJ never reached the issue of substantial non-infringing uses. [00:21:33] Speaker 01: And when the matter was before the commission, Navico challenged the finding of contributory infringement, but never pointed to its evidence of no substantial non-infringing uses. [00:21:44] Speaker 01: So therefore, we considered the matter to be waived. [00:21:49] Speaker 01: You can look at APPX 3116, and that's Navico's petition to the Commission. [00:21:58] Speaker 01: And in a second brief to the Commission at APPX 3352, Navico's argument challenging the AOJ's findings of no contributory infringement appeared solely in a footnote in two different briefs and was based on direct infringement only, with no mention of the issue of substantial non-infringing uses. [00:22:26] Speaker 01: As this court seems to recognize, contributory infringement has long required a showing that the accused infringer must have knowledge and must know that the combination for which the component was especially designed was both patented and infringing. [00:22:40] Speaker 01: And contrary to Navigo's argument, those common law and global tech cannot be dismissed as mere dicta. [00:22:46] Speaker 01: And based on the clarification provided by Como and Global Tech as to the knowledge requirement, [00:22:51] Speaker 01: Evidence of a good faith belief of non-infringement, whether or not based on opinion counsel, can be considered to find the lack of knowledge required for... Well, you heard your friend. [00:23:01] Speaker 03: Your friend says here and in the brief that notwithstanding what Comel may reference, they didn't explicitly overrule Arrow. [00:23:11] Speaker 03: And your friend's reading of Arrow is that because they ran the clock from the date of the cease and desist notice, [00:23:19] Speaker 03: And because there were efforts to subsequently design around, that that in combination means that it really was the cease and desist notice that triggered the liability for contributory. [00:23:32] Speaker 01: Well, I disagree with Mr. Stevens. [00:23:34] Speaker 01: And I agree with your honor that there is no indication in Arrow 2 that the Supreme Court considered the issue and the relevance of evidence of opinion counsel as it relates to contributory infringement. [00:23:46] Speaker 01: There's just nothing there. [00:23:46] Speaker 01: And he cannot point to any rule of law that would [00:23:49] Speaker 01: that would preclude consideration of opinion counsel or an accused infringer's belief of non-infringement to determine the knowledge required for contributory infringement. [00:23:59] Speaker 01: Knowledge is a question, in fact, and such evidence is relevant as to the accused infringer's state of mind. [00:24:06] Speaker 03: Another issue in this particular appeal is the finding of no perspective contributory infringement. [00:24:14] Speaker 03: So once there's a determination that there is direct infringement and once [00:24:20] Speaker 03: Garmin knows that. [00:24:21] Speaker 03: Why shouldn't at least prospectively liability run on contributory? [00:24:26] Speaker 01: Because Navico here proceeded on a theory of excluding the standalone transducers on a theory of contributory infringement. [00:24:36] Speaker 01: And it failed to establish contributory infringement by Garmin's importation and sale after importation to end users of those transducers. [00:24:44] Speaker 01: So the commission acted reasonably in declining to exclude the standalone transducers [00:24:49] Speaker 01: based on acts of contributory infringement that Navico did not prove. [00:24:53] Speaker 01: And contrary to Navico's argument, the commission's determination did not insulate or absolve Garmin from future acts of contributory infringement. [00:25:02] Speaker 01: Further commission proceedings can be held to address any acts arising after the commission's final determination. [00:25:10] Speaker 05: Well, the commission's decision is not a final determination until it gets affirmed on appeal. [00:25:18] Speaker 05: quite a different situation if the firm is on appeal, and then the convention that there couldn't be any contributory infringement that the knowledge was lacking at that point, right? [00:25:29] Speaker 01: I would say that Garmin would not be in a position to rely on the same opinion of counsel to argue the lack of knowledge required for contributory infringement. [00:25:39] Speaker 01: But certainly, a finding by this court would go into the analysis as to whether Garmin had the requisite knowledge for contributory infringement [00:25:49] Speaker 01: And if there are no further questions. [00:25:51] Speaker 01: Let's hear from Mr. Groomrich. [00:25:52] Speaker 01: Thank you. [00:26:02] Speaker ?: Thank you. [00:26:02] Speaker ?: Good morning. [00:26:07] Speaker 00: I'd like to start with the prospective infringement, the prospective relief that is being sought here. [00:26:18] Speaker 00: there's a convenient place to begin and uh... al view would be on behalf of common would be that uh... you you you cannot take one changed fact alone in other words the finding that the advice of counsel was wrong and there is infringement and from that soul facts then say okay now you possess the intent you'd have to go through and look at [00:26:46] Speaker 00: other fact whatever other facts may be relevant and as the court is aware from the related appeals there there is a design around for example the second another designer uh... and so without you cannot simply say just because it it turned out that well i would think you're going to be that the you can't say that until you would do to catered police considered that i'm thinking uses as well right i i i agree with that your honor and by the way on on that point [00:27:14] Speaker 00: uh... your honor had asked earlier i think uh... whether the uh... the commission or the administrative law judge had made findings on that uh... there are two sets of products there are so-called transducers uh... and head units uh... and you can think of them as a bit that's under the water and a bit that's on the top of the boat and the uh... uh... [00:27:39] Speaker 00: The administrative law judge made findings that there are substantial non-infringing uses for the head unit. [00:27:45] Speaker 00: The administrative law judge declined to make findings, even though he was asked to, on whether there were substantial non-infringing uses for the transducers. [00:28:00] Speaker 00: And in our view, part of the problem that we've got here that Navico is coming to this court and saying, please make findings a fact. [00:28:08] Speaker 00: that weren't made below, either by the innocent of law judge or by the commission in its review. [00:28:15] Speaker 00: Let's weigh the evidence and make findings on that. [00:28:19] Speaker 00: That's wholly inappropriate. [00:28:21] Speaker 00: It was their burden to prove this. [00:28:25] Speaker 00: They put in what in our view was highly conclusory testimony, that question and answer, at 7021 and 22, I think, in the appendix. [00:28:36] Speaker 00: 263 through 266, which essentially on this issue simply pucks a phrase out from the Vitamix opinion and says, well, any other uses would be aberrant, occasional, unusual, et cetera, et cetera. [00:28:54] Speaker 00: And in our view, the administrative law judge was entirely within his rights to say, I decline to credit that. [00:28:59] Speaker 03: Yeah, but you've also got that testimony which you try to embrace and use on your side from your witness. [00:29:05] Speaker 03: But there's a troubling statement in that cross-examination, which has your witness conceding that that's not a mainstream use. [00:29:12] Speaker 00: I agree with that completely, Your Honor. [00:29:15] Speaker 00: But whether there be substantial non-infringing uses is something as to which there is a body of law that tells us how we find that out. [00:29:26] Speaker 00: And whether something is or isn't, quote, mainstream is, I would suggest, not [00:29:33] Speaker 00: uh... informative on that and you know we've had to you decisions of this court for example reviewing survey evidence and finding that to be insufficient okay i take your point why don't we move on to invalid it uh... absolutely uh... the uh... uh... uh... what could i tell the court that would be useful in the list uh... uh... well i thought i start about motivation to combine uh... uh... [00:30:03] Speaker 00: And the tucker says, when thrown vertically downwards, the device forms a powerful tool for studying sound scattering layers in the sea. [00:30:14] Speaker 00: Since it's owing to its high resolution, it gives a great deal more information than a white beam sounder. [00:30:20] Speaker 00: White beam sounder is another way of saying the kind of conical beam that is used and shown as in the prior art. [00:30:31] Speaker 00: uh... to the eight forty patent and five fifty patents and that's the exact same it's solving the exact same problem that the eight forty patent says uh... in the introductory portion of the specification that it's all and so to us that's the motivation to combine if the patent is correct that there was a need for sonar systems that would give more information more detailed information about what was below the boat [00:31:01] Speaker 00: you would look at talker and say talkers tells me that's one of when you turn the transducer talk of the speed downwards that's what it does and that are therefore is the motivation in fact it's in our view uh... it's hard to imagine a better correspondence between what this statement in the prior arts and what the patent says is the the purpose of the invention uh... [00:31:30] Speaker 03: What about the difficulty in combining a sort of semi-teaching-the-way argument? [00:31:37] Speaker 00: Again, we'll come to this in the next case, but in our view, if you follow the Commission's construction, then TACA is a device that meets the claim limitations single linear downscan transducer element, and therefore it falls within [00:32:00] Speaker 00: the are the the scope of the the relevant to that part of the relevant claims and therefore all of these arguments about it's too complicated and it's got too many wires going into it and so on and so forth seems to be relevant that there are a I mean just to be clear it's Garmin's view that under the correct claim construction Tucker does not meet that limitation. [00:32:27] Speaker 00: Tucker has [00:32:29] Speaker 00: It still provides a meaningful teaching in some respects, but it's not anticipatory of any claim. [00:32:37] Speaker 00: But under the commission's construction, it's our view that it does meet those. [00:32:43] Speaker 03: Just to be clear, we're talking about the other appeal now, 1572, the claim construction issue. [00:32:48] Speaker 00: Correct, yes. [00:32:49] Speaker 00: And the one final thing I would love to say is if the court has any questions on the 499 patent, [00:32:56] Speaker 00: which we've not touched on so far. [00:32:59] Speaker 00: I'd be happy to answer that. [00:33:01] Speaker 04: Well, the 499 patent claim 21 discusses the individual views of both the side scan and the down scan, right? [00:33:12] Speaker 04: But the parent claim, one, is that it has a requirement that the view, the rendering be done with combined data. [00:33:19] Speaker 04: Is this what you were referring to just now? [00:33:21] Speaker 04: Correct, Your Honor, yes. [00:33:24] Speaker 00: But the 499 [00:33:26] Speaker 04: always carefully distinguishes between combined... When you say combined data, is it your belief you're talking about a full combination of the data or the data sitting side by side? [00:33:39] Speaker 04: Individual views that are side by side. [00:33:42] Speaker 00: It's not individual views that are side by side. [00:33:46] Speaker 00: And if we look at that, Claim 19 would make that perfectly clear. [00:33:51] Speaker 00: That if it were individual views that are side by side, [00:33:54] Speaker 00: option four in claim 19 would not make sense. [00:34:00] Speaker 00: So claim 19 says, here's a number of display options that the user can pick. [00:34:07] Speaker 00: One of them is side by side of the two forms of data. [00:34:10] Speaker 00: One of them is with the linear data, the conical data, and the combined data. [00:34:19] Speaker 00: If in fact, just displaying them side by side is combined data, [00:34:23] Speaker 04: So in your view, when you have combined data, are you saying that there's images that are overlapping? [00:34:30] Speaker 04: You get the two images that you can have side by side, and now you overlap them. [00:34:37] Speaker 00: Overlay them, yes. [00:34:40] Speaker 00: That would be one form of combination, Your Honor, yes. [00:34:43] Speaker 00: It's not the only form of combination, but one form of combination is if you overlay the two images, one on top of the other, yes. [00:34:52] Speaker 00: But if you just have them in separate windows on the screen side by side. [00:34:56] Speaker 04: So a combination doesn't have to require that you combine the data in such a way where you only have one image. [00:35:02] Speaker 04: There's no overlay. [00:35:03] Speaker 00: As I understand the question, I agree with that, Your Honor. [00:35:12] Speaker 03: Thank you. [00:35:29] Speaker 02: Thank you, Your Honor. [00:35:30] Speaker 02: Let me address that last point first on the 499 patent. [00:35:35] Speaker 02: The combination does not require overlay. [00:35:37] Speaker 02: It does not require it to be presented as an image. [00:35:39] Speaker 02: Figure 10 shows it side by side. [00:35:42] Speaker 02: The text and the specification about figure 10 says it's an embodiment of the invention. [00:35:46] Speaker 02: Claim 21 makes no sense unless side by side it is presenting a combination of data. [00:35:53] Speaker 02: The claim just doesn't make sense. [00:35:54] Speaker 02: Claim 21 requires it to be that side by side presentation. [00:35:58] Speaker 02: Mr. Ghermidge pointed to claim 19. [00:36:00] Speaker 02: You have to understand about claim 19. [00:36:01] Speaker 02: At the top, it says, these are just options that the user has. [00:36:05] Speaker 02: It doesn't say that you're actually doing it as part of the dependency of claim 1. [00:36:10] Speaker 02: It's just other options the user has. [00:36:12] Speaker 02: So claim 19 is not answering the question as presented. [00:36:15] Speaker 02: But claim 21 is clear. [00:36:16] Speaker 02: The side-by-side display must be a part of the claim, or covered by claim 1, the independent claim. [00:36:23] Speaker 02: Otherwise, 21 simply doesn't make any sense. [00:36:28] Speaker 02: Turning back to Tucker for a moment and the invalidity holding, we looked briefly and there was not, we were unable to find a holding that Tucker is not a phased array. [00:36:39] Speaker 02: And so there is no factual finding that we can find from the commission on that front. [00:36:44] Speaker 02: And as Mr. Grumbidge's brief show, Garmin now concedes that it is a phased array. [00:36:49] Speaker 02: And as you heard, that's not part of the claim is correctly construed. [00:36:52] Speaker 02: And the commission briefing shows that phased arrays are not included [00:36:56] Speaker 02: within the actual commission construction that they chose. [00:37:00] Speaker 02: So accepting that Tucker is a phased array means it can't possibly be disclosing the linear transducer element or the linear downscan transducer element of the 550 claims. [00:37:11] Speaker 02: Turning finally, then, back to contributory infringement. [00:37:16] Speaker 02: First off, with respect to perspective relief, obviously once the alleged good faith reliance upon the non-infringement defense, once that's extinguished, [00:37:26] Speaker 02: obviously there's nothing left, and you must move forward. [00:37:30] Speaker 02: And that has to be contributory infringement. [00:37:33] Speaker 02: There is no longer any basis that one could reasonably say they did not believe that there was infringement. [00:37:39] Speaker 02: Again, intent, we don't believe is the right question. [00:37:44] Speaker 02: If a good faith belief of non-infringement is a defense to both contrib as well as inducement, then there's no daylight any longer between knowledge and intent. [00:37:55] Speaker 02: Arrow doesn't, in my view, make sense, and Judge Rich's comments in the HP case don't make sense any longer either. [00:38:01] Speaker 02: Finally, as to substantial non-infringing uses, I disagree that the administrative law judge found against Navico. [00:38:10] Speaker 02: The way that I read the administrative law judge's determination is he laid out all the facts, and this is starting to... I don't think there's a contention that the administrative law judge found against you. [00:38:19] Speaker 05: I think that substantial non-infringing uses finding related to the [00:38:25] Speaker 05: head unit rather than the transducer. [00:38:29] Speaker 02: Right, so we're looking now at APPX 199 through about 202. [00:38:34] Speaker 02: So from APPX 199 to the top of 201, the judge recounts all the factual evidence. [00:38:40] Speaker 02: He says, here's what Navico said, here's what the staff said. [00:38:43] Speaker 02: And then he goes through and finds the things he disagrees with us for. [00:38:46] Speaker 02: So for head units, as Mr. Gruber has pointed out, there's an explicit holding that the head units had a substantial non-infringing use. [00:38:53] Speaker 02: Well, I don't necessarily agree with that. [00:38:54] Speaker 02: That's not before us. [00:38:55] Speaker 02: We've not pursued that issue. [00:38:58] Speaker 02: But the judge didn't say the same thing for the transducers. [00:39:01] Speaker 02: He says in the paragraphs before it, there's all these allegations that it lacks substantial non-infringing uses. [00:39:06] Speaker 02: And then he says, the reason I'm holding against Navico is because I find no underlying act of direct infringement. [00:39:12] Speaker 02: And so to us, this is an explicit finding that all of the factors were met, all of the different elements or requirements [00:39:21] Speaker 02: of indirect infringement. [00:39:22] Speaker 03: Give me that page where the page I'm on 199 but you're saying he made a there were findings and a conclusion by the ALJ that there were no substantial non-infringing uses. [00:39:34] Speaker 02: What I'm saying is that he went through all the facts and then on APPX 201 said the reason I'm voting against Navico is a lack of underlying direct infringement as to the transducers and then as to the hid units I find against Navico [00:39:48] Speaker 02: because there's a lack of underlying direct infringement and a lack of substantial non-infringement. [00:39:52] Speaker 05: So you didn't reach the substantial non-infringement usage with respect to the transducers? [00:39:56] Speaker 02: That's not how we read it, and I don't think that's how the whole section can be accurately read. [00:40:01] Speaker 02: If the judge recounts all these facts that are in our favor and then says the reason I hold against them is no underlying act of direct infringement, we read that to be that had there been direct infringement, you'd have won. [00:40:14] Speaker 02: And in fact, in Garmin's brief and in the commission opinion itself, it refers to the contingent finding of indirect infringement made by the ALJ, which I think tells you the state of mind of all the parties and how we read the ALJ's word. [00:40:27] Speaker 02: I'm over my time, so unless there's any other questions, I'll finish. [00:40:30] Speaker 02: We thank both sides, and the case is submitted.