[00:00:13] Speaker 00:
Our next case this morning is number 162634, Petter Investments versus Hydroengineering.

[00:00:22] Speaker 00:
Mr. Loban.

[00:00:24] Speaker 01:
Thank you, Your Honor.

[00:00:37] Speaker 02:
Good morning and may it please the Court and respectfully to Judge Benson of Utah,

[00:00:44] Speaker 02:
Appellant Revere Company is represented here today first by its principal, Mr. Doug Petter.

[00:00:52] Speaker 02:
And we are here today as appellant imploring this court to resist the temptation to give only passing attention to this case.

[00:01:03] Speaker 02:
As from his rulings, it's clear that Judge Benson did.

[00:01:07] Speaker 00:
We're not giving passing attention.

[00:01:09] Speaker 00:
Given oral argument, you're here able to present your case.

[00:01:14] Speaker 00:
I'm trying to set the framework for the argument.

[00:01:17] Speaker 02:
Understood, understood.

[00:01:22] Speaker 02:
Judge Benson made short work in a lot of his rulings, and that's in part why we're here today.

[00:01:28] Speaker 02:
Obviously, the substance of our claims and the evidence we presented, we believe, requires reversal in light of the substance of Judge Benson's rulings.

[00:01:38] Speaker 02:
Why don't you get to the substance then?

[00:01:40] Speaker 02:
Yes, Your Honor.

[00:01:47] Speaker 02:
The first error that we've asserted, and there are many errors that put procedural history of the case, is long.

[00:01:54] Speaker 02:
But the first error was denying Revere's Rule 56 request for discovery necessary to oppose the early summary judgment motions that were brought just a couple of weeks after discovery opened.

[00:02:07] Speaker 02:
So in the normal course.

[00:02:11] Speaker 00:
But the summary judgment ruling didn't come down until discovery was complete.

[00:02:15] Speaker 00:
understand the opportunity to supplement the record, right?

[00:02:19] Speaker 02:
Yes, of course, Your Honor.

[00:02:21] Speaker 02:
In most cases, as the normal course is, as this Court's aware, you start discovery, you trade exchange documents.

[00:02:28] Speaker 02:
Once you get your document discovery, then you take your depositions.

[00:02:30] Speaker 02:
It would be bordering on malpractice for an attorney to start taking depositions before he's confident that the other side has produced all of its key documents.

[00:02:39] Speaker 02:
In this case, the key documents

[00:02:42] Speaker 02:
to use an opposing summary judgment didn't come in until October of 2014.

[00:02:46] Speaker 02:
The brief opposing summary judgment had to be filed in July of 2014.

[00:02:51] Speaker 02:
So obviously, the cart was before the course here.

[00:02:54] Speaker 02:
The cart was before the course.

[00:02:56] Speaker 00:
But you're not addressing the possibility of supplementing the record before the ruling.

[00:03:01] Speaker 00:
There was no... Am I correct that the discovery was complete by the time of the summary judgment ruling?

[00:03:06] Speaker 00:
No.

[00:03:07] Speaker 00:
No.

[00:03:08] Speaker 00:
What's wrong with it?

[00:03:10] Speaker 02:
By the time of the ruling, yes.

[00:03:11] Speaker 02:
It was complete by the time of the ruling.

[00:03:15] Speaker 02:
Not by the time of the briefing.

[00:03:17] Speaker 02:
By the time of the ruling, the discovery was complete.

[00:03:19] Speaker 02:
By the time of the ruling, yes.

[00:03:21] Speaker 02:
But the whole purpose of Rule 56D is to put the brakes on the briefing and discovery.

[00:03:29] Speaker 02:
Because in order to oppose summary judgment, you have to get your evidence, marshal it, and present it in the form of a brief.

[00:03:35] Speaker 00:
Did you try to file a supplemental brief?

[00:03:37] Speaker 00:
taking account of the evidence that was developed after the summary judgment court?

[00:03:42] Speaker 02:
I filed a motion for reconsideration of the summary judgment ruling.

[00:03:46] Speaker 00:
After the ruling.

[00:03:47] Speaker 00:
But you didn't file any supplemental brief based on the additional material that you had developed in discovery between the time of the hearing on the summary judgment motion and the decision.

[00:04:00] Speaker 02:
That was, it was a matter of weeks.

[00:04:03] Speaker 02:
It was a Christmas holiday.

[00:04:03] Speaker 02:
The ruling came out.

[00:04:04] Speaker 02:
There was no supplemental brief.

[00:04:06] Speaker 02:
The supplemental brief was in the form of a motion for reconsideration.

[00:04:10] Speaker 02:
After the ruling.

[00:04:11] Speaker 02:
Correct.

[00:04:12] Speaker 02:
That's correct.

[00:04:13] Speaker 02:
That's correct.

[00:04:14] Speaker 02:
So that's the first issue on appeal.

[00:04:17] Speaker 02:
And I've given a summary of what we believe is an erroneous denial of that motion.

[00:04:23] Speaker 02:
And in substance, the denial of the Rule 56 motion hinged on the court's assessment, again, in short form, that we hadn't identified any discovery.

[00:04:35] Speaker 02:
Well, the proof is in the pudding.

[00:04:36] Speaker 02:
I mean, first of all, we identified the discovery.

[00:04:39] Speaker 02:
Eight pages worth of, here's the documents we believe exist.

[00:04:42] Speaker 02:
Of course, we didn't have them.

[00:04:44] Speaker 02:
Here's the witnesses we needed to depose that we haven't deposed yet.

[00:04:47] Speaker 02:
I don't know how much more specific you could be, but it was eight pages.

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And the judge basically just said, no, it's not enough.

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So we're going to deny the Rule 56 motion.

[00:04:56] Speaker 02:
And we assert that was erroneous.

[00:04:58] Speaker 02:
It's an abuse of discretion.

[00:05:00] Speaker 02:
The second issue was granting in substance.

[00:05:04] Speaker 02:
the summary judgment motion on the misrepresentation claims.

[00:05:07] Speaker 02:
There were three summary judgment motions.

[00:05:10] Speaker 02:
But the principal issue for this appeal, because of the practical realities of the other issues, is the misrepresentation claims.

[00:05:17] Speaker 02:
And the court granted that motion, again, denying the 426D and denying the reconsideration in a one-liner, even though Revere had some evidence that if the judge had applied the right

[00:05:34] Speaker 02:
This court reviews DeNovo, but the district court in the light most favorable to revere.

[00:05:40] Speaker 02:
We had documents, we had declarations explaining in detail why in bids to the government, Hydro presents their product while not complying with the governmental requirements for bids by explaining why it meets the particular requirements for the bid for anyone to be able to submit a bid.

[00:06:02] Speaker 02:
So by signing that bid, the government asked for a Ferrari?

[00:06:06] Speaker 02:
And they have a fiat.

[00:06:07] Speaker 02:
They say, we'll submit our fiat.

[00:06:09] Speaker 02:
And man, maybe the government won't notice.

[00:06:11] Speaker 01:
But they didn't make any misrepresentations about their product, did they?

[00:06:15] Speaker 01:
I find your misrepresentation claim baffling.

[00:06:18] Speaker 01:
It almost seems like you're making a bid protest in the guise of a state law misrepresentation claim.

[00:06:24] Speaker 01:
My reading of the record is they told the government exactly what their product was.

[00:06:28] Speaker 01:
And then it was up to the government to decide whether it met the specification or not.

[00:06:33] Speaker 02:
Well, government requirements for bids say that if the government says we need a Ferrari, then you have to be able to provide a Ferrari.

[00:06:41] Speaker 02:
A Ferrari does zero to 60 and whatever, a Fiat doesn't.

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So if all you have is a Fiat, you may be able to convince a government contract employee that your bid is the lowest, so we're going to look at yours first.

[00:06:54] Speaker 01:
But the government also has technical teams to look at this stuff.

[00:06:59] Speaker 01:
I'm very familiar with how government

[00:07:01] Speaker 01:
bid protests and government contracting works.

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And if the government thought that their bid was noncompliant, it would have rejected it.

[00:07:11] Speaker 01:
And if you thought it was non-compliant, you had the right to make a bid protest to the GAO or to the Court of the Federal Claims.

[00:07:20] Speaker 01:
In at least one of these cases, it looks like you did go to GAO, but I didn't see that you went to the Court of Federal Claims on any of these.

[00:07:26] Speaker 01:
To kind of try to make a collateral attack on the government's award of a contract to your competitor through a state law claim

[00:07:34] Speaker 01:
seems... I don't even know that there's jurisdiction to do that in the district court, but it certainly doesn't seem like you've made any kind of genuine issue a material fact that they actually made a misrepresentation.

[00:07:47] Speaker 01:
You think they didn't comply, but that's a different question, isn't it?

[00:07:52] Speaker 01:
No, I don't think so.

[00:07:53] Speaker 01:
I think your honor... So, point to me what you thought is a misrepresentation of their product.

[00:07:59] Speaker 01:
The government...

[00:08:02] Speaker 01:
I don't care what the government's requirements are.

[00:08:05] Speaker 01:
Point to me where they said something about their product that is not true about their product.

[00:08:11] Speaker 01:
Well, in fundamental fact, they signed their bid, which under this... So your answer is you don't have a specific allegation that they made a specific misrepresentation about their product to the government.

[00:08:25] Speaker 01:
Your misrepresentation is that they misrepresented that it complied with the government specifications.

[00:08:31] Speaker 02:
That overall, but in specific, for example, the government, one of the government visit issues says, we need a stainless steel filter.

[00:08:38] Speaker 02:
And they said, we have stainless steel components.

[00:08:43] Speaker 02:
Right.

[00:08:43] Speaker 01:
Is that, is that, is that untrue that they have stainless steel components?

[00:08:49] Speaker 02:
Well, it's untrue that they have a stainless steel filter.

[00:08:51] Speaker 01:
They didn't say they had a stainless steel filter though, did they?

[00:08:54] Speaker 02:
I understood.

[00:08:55] Speaker 02:
I understand.

[00:08:56] Speaker 02:
But the law of misrepresentation is that

[00:09:00] Speaker 02:
saying something in a way that's clever that in context is a misrepresentation.

[00:09:06] Speaker 01:
That is untrue about their statement that they have stainless steel components.

[00:09:11] Speaker 02:
They don't have the key components as stainless steel.

[00:09:15] Speaker 00:
But see, your problem, you have many problems here, but your problem here is that with at least the first contract the government said this is compliant with the solicitation.

[00:09:27] Speaker 00:
So you have a situation in which the

[00:09:30] Speaker 00:
party to whom the alleged misrepresentation was made says, no, there wasn't a misrepresentation.

[00:09:36] Speaker 00:
They told us what it was and complied with the specification.

[00:09:39] Speaker 00:
What case says under those circumstances that some third party can come in and say, well, the government doesn't know what it's talking about.

[00:09:46] Speaker 00:
It was the victim of misrepresentation.

[00:09:48] Speaker 00:
We ought to redress it.

[00:09:51] Speaker 02:
I don't have a case for you.

[00:09:52] Speaker 02:
There's no case saying you can't

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And certainly, that argument wasn't raised below.

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And the judge, the court didn't issue a ruling on those grounds.

[00:09:59] Speaker 02:
So I don't know that that's right for review here.

[00:10:01] Speaker 02:
Certainly, new arguments on appeal are not something I'm prepared to deal with.

[00:10:06] Speaker 02:
But that wasn't the issue below.

[00:10:08] Speaker 02:
The issue below was the judge denying discovery and then ruling on even on the evidence that we had presented, which didn't include the real evidence that we got subsequently that we presented in the reconsideration.

[00:10:19] Speaker 01:
Well, so in the real evidence, is there any other evidence of misrepresentation?

[00:10:23] Speaker 01:
beyond your belief that they somehow bamboozled the government?

[00:10:28] Speaker 02:
Yes.

[00:10:29] Speaker 02:
What?

[00:10:29] Speaker 02:
There's deposition testimony.

[00:10:31] Speaker 01:
What does it say?

[00:10:32] Speaker 01:
I asked you what were the misrepresentations about their product, and the only one you said was they misrepresented that they had stainless steel filters.

[00:10:41] Speaker 01:
Do you have something beyond that?

[00:10:42] Speaker 02:
Yes.

[00:10:42] Speaker 02:
The deposition testimony presented in the reconsideration motion says, I asked their witnesses, two of them,

[00:10:49] Speaker 02:
When you submit a bid, you're saying it's meeting the salient characteristics that the government says are required.

[00:10:54] Speaker 01:
So you're again talking about whether it complies with the government.

[00:10:56] Speaker 02:
They admitted that it doesn't comply with the bid specifications.

[00:10:59] Speaker 01:
But we're not here to address whether it complied with the government specifications or not.

[00:11:03] Speaker 01:
The government agreed it did.

[00:11:05] Speaker 01:
If you wanted to challenge that, your avenue for challenge was a bid protest at the GAO or at the Court of Federal Claims.

[00:11:13] Speaker 01:
Those are other avenues.

[00:11:17] Speaker 01:
can't imagine a district court is going to allow a collateral attack on a government procurement through a state law misrepresentation claim.

[00:11:30] Speaker 02:
Well, the court did allow it by not speaking to that issue.

[00:11:34] Speaker 02:
the court denied the motion.

[00:11:36] Speaker 01:
It can deny your motion for about half a dozen reasons.

[00:11:38] Speaker 01:
It doesn't have to get to the really thorny question of whether you can have a collateral tax on government procurement, since you still haven't pointed to any specific misrepresentations they made about their products, rather than compliance with the government specifications.

[00:11:55] Speaker 02:
Well, all of the key evidence is in our briefing.

[00:11:58] Speaker 02:
You know, I'm giving you my

[00:12:01] Speaker 02:
understanding of what we cited to.

[00:12:04] Speaker 02:
It should be very clear what our claim is and what our evidence is.

[00:12:09] Speaker 01:
I think it's very clear.

[00:12:10] Speaker 01:
You're trying to collaterally attack the government awarded the contract through a misrepresentation claim because they didn't make any misrepresentations about the content of their products.

[00:12:19] Speaker 01:
And you haven't pointed me to a specific single misrepresentation about their products.

[00:12:25] Speaker 01:
But keep pointing me back to the notion that they somehow misled the government.

[00:12:30] Speaker 00:
I understand perfectly what you're saying.

[00:12:32] Speaker 00:
Wouldn't any state law remedy of this kind be preempted by the federal procurement scheme?

[00:12:39] Speaker 02:
That would have been a good summary judgment motion.

[00:12:41] Speaker 02:
It wasn't brought below.

[00:12:43] Speaker 02:
What was brought below was that there's no evidence to support misrepresentations.

[00:12:47] Speaker 02:
We presented our evidence.

[00:12:49] Speaker 02:
We asked the court for time to conduct discovery.

[00:12:51] Speaker 02:
The court denied both, and that's why we're here.

[00:12:56] Speaker 02:
I'll move on to the next issue, which is latches, which I think clearly needs to be reversed.

[00:13:01] Speaker 01:
Only if we find there are problems with the non-infringement finding, right?

[00:13:06] Speaker 01:
Because he just used latches to borrow a remedy.

[00:13:08] Speaker 01:
But if we agree that there's no infringement here, then it doesn't really matter.

[00:13:13] Speaker 02:
Correct.

[00:13:14] Speaker 02:
That's correct.

[00:13:15] Speaker 02:
So I'll skip over that.

[00:13:18] Speaker 02:
I just wanted to briefly mention latches.

[00:13:20] Speaker 02:
The next issue is related to the discovery issue in the 56D.

[00:13:25] Speaker 02:
denying the motion to extend discovery.

[00:13:27] Speaker 02:
Now, the district court has lots of discretion.

[00:13:29] Speaker 02:
But when a party, a defendant files summary judgment motions in July while document requests are pending and then 10,000 pages of documents show up in mid-October with a discovery cut off of December 1st, even wide discretion should not allow a court to deny an extension to discovery while the plaintiff is reviewing 10,000 plus pages of documents

[00:13:54] Speaker 02:
figuring out what depositions he needs to take there on, which by the way are the key documents.

[00:14:00] Speaker 02:
We did it, but we didn't do it by December 1st.

[00:14:04] Speaker 02:
And the fact of the matter is that defendant himself, defendant itself needed more time for discovery.

[00:14:10] Speaker 02:
But in order to keep our feet to the fire, wanted to hold that December 1st cutoff, we both agreed to take depositions after December 1st.

[00:14:18] Speaker 02:
So we're asserting an abuse of discretion under the circumstances of this case.

[00:14:22] Speaker 02:
A document dump, no time to review it, discovery cut off comes, we're out of luck.

[00:14:29] Speaker 02:
On the claim instruction issues, obviously de novo review here, generally the court's orders on claim construction were very short and sweet.

[00:14:40] Speaker 02:
We don't think that the court got it right, and we're asking this court to get it right.

[00:14:47] Speaker 02:
There are five

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claim terms at issue on this appeal that we've raised.

[00:14:51] Speaker 02:
Defendants addressed only two.

[00:14:52] Speaker 00:
Five terms that only two of them affect the infringement finding, right?

[00:14:57] Speaker 02:
Well, depending on the result, yes.

[00:15:00] Speaker 02:
But there are five terms that we've raised on this appeal.

[00:15:04] Speaker 02:
Two they've included in their opposing briefs.

[00:15:10] Speaker 02:
We think basically the court misinterpreted its role in the use of intrinsic evidence, importing limitations into the claims.

[00:15:19] Speaker 02:
from the specification.

[00:15:20] Speaker 00:
The court... The only two issues are the meaning of great and evacuation.

[00:15:26] Speaker 00:
Those are the only things that affect the infringement, non-infringement finding, right?

[00:15:32] Speaker 02:
Yes, but we have three other claim terms that affect our ability to argue infringement, either by literal infringement or doctrine of equivalence.

[00:15:41] Speaker 02:
So that's why we raise them on this appeal.

[00:15:43] Speaker 02:
So we can get it right now and go back and present our case.

[00:15:49] Speaker 00:
Okay, you're well into your rebuttal time.

[00:15:51] Speaker 00:
We'll give you two minutes for rebuttal.

[00:15:53] Speaker 02:
Thank you.

[00:15:56] Speaker 00:
Mr. Miller?

[00:15:59] Speaker 03:
Thank you, Your Honors.

[00:16:00] Speaker 03:
May it please the Court, Mark Miller on behalf of Hydroengineering.

[00:16:03] Speaker 03:
I'll begin by addressing the Rule 56D motions and the misrepresentation claim just briefly.

[00:16:13] Speaker 03:
The fact is, although

[00:16:17] Speaker 03:
They felt the motion for summary judgment was prematurely filed.

[00:16:20] Speaker 03:
It certainly wasn't prematurely granted.

[00:16:23] Speaker 03:
Their 56D motion said, give us more time.

[00:16:27] Speaker 03:
They were given an additional six months before the motion was granted.

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And in that entire time, they never sought to supplement the record.

[00:16:35] Speaker 03:
They had opportunity.

[00:16:36] Speaker 03:
And in fact, during the summary judgment hearing, Judge Benson said, I'm willing to let you go beyond this motion.

[00:16:44] Speaker 03:
Tell me what your evidence is.

[00:16:45] Speaker 03:
This was in November.

[00:16:47] Speaker 03:
Their 56-D motion was filed in July.

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And in November, he said, go beyond the motion.

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Do whatever you need to do.

[00:16:54] Speaker 03:
Tell me what you have.

[00:16:55] Speaker 00:
And their response... Where do I find that in the record?

[00:16:58] Speaker 03:
That is found at appendix 4763, I believe, but... What's following?

[00:17:06] Speaker 03:
I want to double-check that.

[00:17:25] Speaker 03:
It's actually 4781, appendix page 4781.

[00:17:29] Speaker 03:
The court says at the bottom of line 24, it is not that hard.

[00:17:50] Speaker 03:
I am willing to let you go past this motion.

[00:17:52] Speaker 03:
and especially since they are not raising the standing issue.

[00:17:56] Speaker 03:
But if you can show me where you have some basis to allege that they told the Army this and they didn't do what they said they were doing."

[00:18:04] Speaker 03:
And Mr. Lavin's response was, at that point he says, well, what I have is in the record.

[00:18:10] Speaker 03:
This is November.

[00:18:12] Speaker 03:
Now, after this, there were more depositions taken and Mr. Lavin did not try to supplement the record

[00:18:23] Speaker 03:
Between the depositions in December and the court's ruling, there was an entire month.

[00:18:28] Speaker 00:
Did the motion to extend the discovery period relate entirely to the misrepresentation claims?

[00:18:36] Speaker 03:
The motion to extend discovery related primarily to third-party discovery.

[00:18:42] Speaker 03:
What claims?

[00:18:43] Speaker 03:
The misrepresentation claims.

[00:18:45] Speaker 03:
No, no.

[00:18:49] Speaker 03:
The third-party discovery they were seeking

[00:18:52] Speaker 03:
was to some third parties that had to do with some infringement claims.

[00:18:56] Speaker 03:
During the hearing on their motion to extend the deadline, they represented in open court, we have everything we need from Hydro.

[00:19:04] Speaker 03:
We need no more discovery directly from the defendant.

[00:19:07] Speaker 03:
That was November 13th.

[00:19:09] Speaker 03:
We have everything we need from them, we just need third party stuff.

[00:19:12] Speaker 03:
But then they served their first deposition subpoena two weeks before the close of discovery, and they served seven of them that were facially

[00:19:19] Speaker 03:
unreasonable and we moved to quash that was granted and they don't appeal the decision granting the motion of quash in this appeal.

[00:19:29] Speaker 03:
Now beyond the misrepresentation claim, there's a few things I want to point out with regard to the patent infringement claims.

[00:19:38] Speaker 03:
First on the 7-7-4 patent, the undisputed facts are that Hydropad with the

[00:19:50] Speaker 03:
with the conveyor in it, we have the components that would apply to what their patent calls an evacuator are at one end of the side trough and the components for the elevator are at the opposite end.

[00:20:04] Speaker 03:
That's an undisputed fact about our configuration.

[00:20:06] Speaker 03:
The other undisputed fact about our product is the wire stream, which would in their patent be called the debris collector, is inside the side trough and the pump is outside.

[00:20:19] Speaker 03:
Those are the undisputed facts.

[00:20:20] Speaker 03:
With those facts, there's three independent bases you can affirm judgment of non-infringement for the 774 patent.

[00:20:29] Speaker 03:
The first basis is easy.

[00:20:31] Speaker 03:
It's affirming the claim construction of evacuation end, and we've put forth the intrinsic record on that.

[00:20:38] Speaker 03:
The second basis is one that they have never opposed or disputed, either below or even here, and that is

[00:20:47] Speaker 03:
the disclaimer argument about the evacuator.

[00:20:50] Speaker 03:
During prosecution, they distinguished Hydro's own prior art and said to have an evacuator, it has to be a separate component, meaning the debris collector and the fluid mover, all those components have to be separate from the side trough.

[00:21:06] Speaker 03:
They can't be in the side trough the way it was in Hydro's prior art.

[00:21:11] Speaker 03:
Well, our product

[00:21:12] Speaker 03:
has one of those components in the side trough.

[00:21:15] Speaker 03:
So they do not have a complete evacuator outside the side trough.

[00:21:19] Speaker 03:
That's non-infringement as a matter of law.

[00:21:23] Speaker 03:
And I want to point something out.

[00:21:25] Speaker 03:
In their reply brief on page 9, there's a footnote in their reply brief where they address this argument for the first time in the case.

[00:21:33] Speaker 03:
But they address it passively.

[00:21:35] Speaker 03:
And they claim that we never raised this below.

[00:21:39] Speaker 03:
They say, despite not being raised below,

[00:21:42] Speaker 03:
This argument doesn't pass muster.

[00:21:44] Speaker 03:
It was raised below.

[00:21:45] Speaker 03:
It was raised below in our summary judgment motion.

[00:21:48] Speaker 03:
And we devoted five full pages of argument to this disclaimer argument.

[00:21:53] Speaker 03:
And they never rebutted it in their opposition.

[00:21:57] Speaker 03:
And in appendix 44.12 through 17, that's where you can find where we raised this argument below.

[00:22:04] Speaker 03:
And I think that's an independent reason to find non-infringement of the 7.74 patent.

[00:22:10] Speaker 03:
Another independent reason would be to just look at the claim language at the end of the 774 patent claim, which states it explains how the conveyor moves the debris and liquid to the evacuator, and then the debris is lifted from the evacuator.

[00:22:33] Speaker 03:
You can't satisfy that claim language if the elevator is not at the same end as the evacuator.

[00:22:39] Speaker 03:
There's three independent ways you can affirm non-infringement of the 774 patent.

[00:22:46] Speaker 03:
Moving to the 298 patent.

[00:22:49] Speaker 03:
The term grate, if you look at the intrinsic record, it's clear that a grate is a porous surface that allows the water and debris to flow through it.

[00:22:59] Speaker 03:
You're washing these cars on these big steel pads.

[00:23:04] Speaker 03:
And back in the 90s, the way they built these, the common way was you had a grate

[00:23:09] Speaker 03:
And everything would fall straight through it.

[00:23:11] Speaker 03:
And you had a basin.

[00:23:13] Speaker 03:
And to clean it out, you couldn't be washing anything.

[00:23:16] Speaker 03:
You'd have to take the car off.

[00:23:17] Speaker 03:
You'd have to lift up the grate and clean it out.

[00:23:19] Speaker 03:
That's the way they were done.

[00:23:20] Speaker 03:
That's what their patent applies to.

[00:23:23] Speaker 03:
Hydro in the early 2000s changed their design and went to an impervious top.

[00:23:28] Speaker 03:
They wanted to be able to clean out the side trough even when they're washing cars, even when there's a car on the pad.

[00:23:35] Speaker 03:
You can go to the side trough and shovel out the dirt.

[00:23:38] Speaker 03:
And so they got a patent on their impervious top side gutter portable wash pads.

[00:23:44] Speaker 03:
Every single court or tribunal that's evaluated and compared these patents has concluded that Hydro's impervious top is different than Revere's grate.

[00:23:55] Speaker 03:
A grate is porous.

[00:23:57] Speaker 03:
It allows things to fall through it.

[00:23:59] Speaker 03:
That's evident in the claim language itself.

[00:24:03] Speaker 03:
Claim one says four sidewalls, a bottom surface, and a basin.

[00:24:07] Speaker 03:
with a grate on top, and the grate allows water to flow through into the basin.

[00:24:15] Speaker 03:
The specification says multiple times the grate has openings in it sufficient to allow water and debris to flow through it.

[00:24:23] Speaker 03:
There's no intrinsic evidence that Revere, the plaintiff, has ever cited to support their construction of grate.

[00:24:32] Speaker 03:
They only cite to online advertisements for the George Foreman Grill.

[00:24:38] Speaker 03:
which have no application to this industry whatsoever.

[00:24:43] Speaker 03:
And under the doctrine of equivalence, Revere clearly waived their right to rely on the doctrine of equivalence by never asserting doctrine of equivalence allegations in their infringement contentions.

[00:24:57] Speaker 03:
This court's decision in Genentech, which we cite in our brief, is directly on point in interpreting this type of local patent rule, interpretation of that local patent rule,

[00:25:08] Speaker 03:
is along the lines that this court described as nonsensical.

[00:25:12] Speaker 03:
So they waived doctrine of equivalence.

[00:25:14] Speaker 03:
And even if the court considered their doctrine of equivalence argument, the sole evidence they presented was one sentence that was conclusory in nature from their expert.

[00:25:29] Speaker 03:
They had an expert declaration that said, and I find that the way that their impervious top

[00:25:38] Speaker 03:
accomplishes the same task in the same way to get the same result, period.

[00:25:44] Speaker 03:
That's never enough to avoid summary judgment, one sentence in conclusory fashion from an expert.

[00:25:55] Speaker 03:
Based upon the findings of the district court and the record before this court, we find it clear that there's no infringement of the 298 patent.

[00:26:05] Speaker 03:
There's no infringement of the 774 patent.

[00:26:08] Speaker 03:
And there's no basis to allege false advertising or misrepresentation with regard to the government contracting situations.

[00:26:19] Speaker 03:
Unless the court has any other questions, I have nothing to add.

[00:26:22] Speaker 03:
Thank you, Mr. Miller.

[00:26:26] Speaker 02:
Thank you, Your Honor.

[00:26:26] Speaker 02:
With my additional time, I'll just address some of these issues.

[00:26:29] Speaker 02:
On the contentions on infringement, the balance of the cases actually favors our position.

[00:26:36] Speaker 02:
Courts have said, look.

[00:26:37] Speaker 02:
You've got a claim construction.

[00:26:39] Speaker 02:
You've got battling contentions.

[00:26:41] Speaker 02:
Your job is not to present a claim construction under multiple different scenarios.

[00:26:47] Speaker 02:
If the court does this, if the court does that, if they allege this, we're alleging that.

[00:26:50] Speaker 02:
Now you've got four different sets of claim constructions, literal, doctrinal equivalents.

[00:26:54] Speaker 02:
You present your contentions, and our contentions were literal infringement.

[00:26:59] Speaker 02:
They presented their contentions.

[00:27:00] Speaker 02:
You get a claim construction.

[00:27:01] Speaker 02:
Now you sit back.

[00:27:02] Speaker 02:
Every local rule is the same, including Utah, and the cases support our position.

[00:27:06] Speaker 02:
Now you ask the court, well, wait a minute.

[00:27:08] Speaker 02:
Your claim construction court is very different from what we propose.

[00:27:12] Speaker 02:
So let's take a step back and see if we still have a case here.

[00:27:15] Speaker 02:
And if we need to amend our contentions, addressing doctoral equivalents, which indicated we would do way back when in the initial and the final infringement contentions, then the court should allow that.

[00:27:27] Speaker 02:
And courts have always allowed that.

[00:27:30] Speaker 02:
Frankly, the local rule says,

[00:27:31] Speaker 02:
in your initial contentions, you have to say, what's your contention?

[00:27:34] Speaker 02:
Is it literal or doctoral equivalence?

[00:27:36] Speaker 02:
Well, ours was literal.

[00:27:38] Speaker 02:
Now the claim issued a claim construction.

[00:27:40] Speaker 02:
Look, that's not anything we imagined.

[00:27:42] Speaker 02:
So now we're going to, does our case go forward?

[00:27:45] Speaker 02:
Of course it does.

[00:27:46] Speaker 02:
You amend your contentions in light of the court's claim construction.

[00:27:49] Speaker 02:
That should be standard.

[00:27:50] Speaker 02:
So that's a basis on the last basis that we argued for on our appeal.

[00:27:56] Speaker 02:
The balance of the cases clearly favors us.

[00:27:58] Speaker 02:
In terms of his claim construction argument on great,

[00:28:01] Speaker 02:
He talks about the hydro system and the subsequent systems.

[00:28:04] Speaker 02:
They got a patent on their system.

[00:28:05] Speaker 02:
That's fine.

[00:28:07] Speaker 02:
Our patent is earlier.

[00:28:08] Speaker 02:
A subsequent patent on a new design doesn't mean that that design doesn't infringe an earlier patent.

[00:28:13] Speaker 02:
This is basic genus species stuff.

[00:28:16] Speaker 02:
So that evidence is irrelevant.

[00:28:19] Speaker 02:
It's as irrelevant as he contends the George Foreman Grill is.

[00:28:23] Speaker 02:
I contend that that's an obvious example of how great

[00:28:27] Speaker 02:
Doesn't have to always look like the crosshatch thing that you have on your basic Weber grill that you find down at the department store.

[00:28:33] Speaker 02:
A grate is also what the George Foreman grill looks like, which is exactly what the accused infringing product is.

[00:28:39] Speaker 02:
So that affects the grate claim construction.

[00:28:41] Speaker 02:
He talks about the 7-7-4 patent.

[00:28:45] Speaker 02:
We didn't oppose the disclaimer argument.

[00:28:46] Speaker 02:
That's something that we did oppose.

[00:28:50] Speaker 02:
We didn't agree with the examiner's suggestion in the prosecution history that the claim be read narrowly based on

[00:28:56] Speaker 02:
figure six of the patent.

[00:28:58] Speaker 02:
And if you look at claim one versus claim eight, it's a clear claim differentiation, standard claim differentiation position.

[00:29:06] Speaker 02:
Claim eight says both have to be on the same end, which means claim end.

[00:29:10] Speaker 02:
Claim one is broader.

[00:29:11] Speaker 02:
They can be on the same end or opposite ends.

[00:29:13] Speaker 02:
That's our 7-7-4 argument.

[00:29:14] Speaker 00:
I think we're out of time, Mr. Flaubert.

[00:29:16] Speaker 02:
Thank you.

[00:29:17] Speaker 02:
Thank you.

[00:29:17] Speaker 02:
Thank you.

[00:29:17] Speaker 02:
I tried to talk so it was a good thing.

[00:29:19] Speaker 02:
Thank you, Your Honor.