[00:00:00] Speaker 00: The court today is Phil Inselcorp versus Airlight Plastics Co. [00:00:07] Speaker 00: 161982, an appeal from the District Court of Nebraska. [00:00:15] Speaker 00: Mr. Adams, you want five minutes for rebuttal? [00:00:25] Speaker 00: Okay, we'll change it to four. [00:00:38] Speaker 03: Your Honor, I have made a plea to court. [00:00:42] Speaker 02: Mr. Adams, did we issue a mandate in the first appeal following our Rule 36 order? [00:00:47] Speaker 02: Yes, you did. [00:00:48] Speaker 02: Doesn't that mean the appeal was final? [00:00:50] Speaker 03: I beg your pardon? [00:00:51] Speaker 02: Doesn't that mean the appeal was final? [00:00:53] Speaker 03: Yes, it does. [00:00:57] Speaker 03: We're not arguing that that appeal was not final. [00:01:00] Speaker 03: I'm not arguing the case that was before the first court. [00:01:05] Speaker 03: What I'm arguing here is whether or not collateral estable ought to apply in a Rule 36 judgment, broadly. [00:01:15] Speaker 03: And at least in this case, if it is to be applied, the court misapplied it in the lower court. [00:01:24] Speaker 00: So clearly, you would concede that race to the cotto would apply if, in fact, there was the same parties, right? [00:01:32] Speaker 03: Yes. [00:01:33] Speaker 00: So as it relates to collateral estoppel law, is it your position broadly that collateral estoppel never applies with a Rule 36 judgment? [00:01:41] Speaker 03: I'm suggesting to the court is that that's what the court should rule. [00:01:45] Speaker 03: Simply because there's just not enough information in a Rule 36 judgment to guide the lower court in going through the collateral estoppel factors [00:01:56] Speaker 03: and deciding that collateral estoppel applies or does not apply. [00:01:59] Speaker 04: You suppose that instead of a rule 36, we'd issued a short non-presidential opinion, two sentences, one saying the appellant argues [00:02:09] Speaker 04: to claim construction issues, we reject his argument, period, affirmed. [00:02:14] Speaker 04: Would that be sufficient to establish a predicate for collateral stop-link? [00:02:18] Speaker 03: Absolutely. [00:02:19] Speaker 03: I don't think there's any question about that. [00:02:20] Speaker 03: I mean, that's what the ASPEC case is all about. [00:02:22] Speaker 03: Once you have a... Well, I guess you're drawing a distinction between a short statement and a full opinion. [00:02:28] Speaker 03: Yeah. [00:02:28] Speaker 03: And it would depend on what is in the short statement. [00:02:30] Speaker 03: The short statement was just what I said. [00:02:32] Speaker 04: I beg your pardon. [00:02:33] Speaker 04: We quote the two arguments, or we allude to the two arguments made by the appellant and say we reject those arguments. [00:02:42] Speaker 03: Yes, then I think that would be a final judgment. [00:02:45] Speaker 03: I think that collateral estoppel would apply, because you would know exactly what are the factors, or you could apply the collateral. [00:02:52] Speaker 04: But when a party makes only two arguments, and there's a rule of 36, [00:02:57] Speaker 04: And those arguments are not independent grounds. [00:03:01] Speaker 04: They're dealing with separate products. [00:03:04] Speaker 04: Why isn't that a perfectly equivalent determination that we know from which we can tell what the court decided? [00:03:12] Speaker 03: I don't think it's equivalent at all, Your Honor. [00:03:14] Speaker 03: It depends upon, number one is the fact pattern that you offer is that [00:03:22] Speaker 03: is that there are two arguments. [00:03:23] Speaker 03: Well, what are those two arguments? [00:03:25] Speaker 03: Let's be more specific. [00:03:26] Speaker 03: If you say that one of the arguments is that the claim construction was incorrect, and the short statement then says is the claim construction was correct, that's the end of the case. [00:03:40] Speaker 03: Supposing we say in an opinion, for the reasons stated in the opinion below, we affirm [00:03:46] Speaker 03: I believe that's what you do in Rule 36. [00:03:48] Speaker 03: I mean, basically, that's what you're saying is... Well, supposing we say we adopt the opinion below. [00:03:54] Speaker 03: I don't think it makes any difference. [00:03:56] Speaker 03: I think the language is, I mean... So you know exactly our reasoning. [00:04:00] Speaker 02: I beg your pardon? [00:04:01] Speaker 02: You know exactly our reasoning, the reasoning in the opinion below. [00:04:04] Speaker 02: And you're saying that's Rule 36. [00:04:06] Speaker 03: Well, but that's, you know, the TechSec case is basically saying is you cannot look at what is in the [00:04:15] Speaker 03: what was decided when you say that our opinion or our judgment is based on the judgment below. [00:04:23] Speaker 02: Well, as a judge of the Court of International Trade, I had this court adopt an opinion, which I wrote. [00:04:33] Speaker 03: I don't think so. [00:04:34] Speaker 03: Oh, no. [00:04:35] Speaker 03: It happened. [00:04:36] Speaker 03: Well, I don't know about that, Your Honor. [00:04:39] Speaker 03: But what I'm saying is I don't think that distinguishes what or answers the argument that I'm raising, all right? [00:04:46] Speaker 00: But techsec is very narrow, though. [00:04:47] Speaker 00: I mean, it says where there are mutually exclusive grounds. [00:04:51] Speaker 00: Understood, Your Honor. [00:04:53] Speaker 00: Then we don't give collateral estoppel effect. [00:04:57] Speaker 00: But here, you don't have that circumstance, do you? [00:05:00] Speaker 03: That's correct. [00:05:02] Speaker 03: If we had alternative grounds, as we tried to point out in the brief, there are independent grounds, but they're not alternative grounds. [00:05:11] Speaker 03: If there were alternative grounds, of course. [00:05:15] Speaker 00: So your argument would be stronger if they were completely alternative. [00:05:17] Speaker 03: Well, I think it would be conclusive. [00:05:19] Speaker 03: But the fact is, we're not arguing that. [00:05:22] Speaker 03: What we're arguing is that tech sec, from our point of view, [00:05:28] Speaker 03: It was a sea change in the court's attitude towards Rule 36 judgments versus full opinions, precedential or non-precedential. [00:05:38] Speaker 03: And simply because, as the TechSec case kept repeating again and again, is we don't [00:05:49] Speaker 03: make any assumptions based on what we say. [00:05:52] Speaker 03: The court said that on several occasions, right? [00:05:54] Speaker 00: But what if I read texts that only apply to circumstances in which there are clearly independent alternative grounds? [00:06:03] Speaker 00: Can you fall into that category? [00:06:05] Speaker 03: No. [00:06:06] Speaker 03: No, we cannot, Your Honor. [00:06:07] Speaker 03: There are two grounds here. [00:06:10] Speaker 03: The lower court was all confused. [00:06:12] Speaker 03: But the fact is that we appeal an infringement judgment. [00:06:18] Speaker 03: That infringement judgment was for literal infringement and for doctrine of equivalence. [00:06:24] Speaker 00: But that appeal, that turned on the claim construction, correct? [00:06:27] Speaker 00: In other words. [00:06:28] Speaker 00: No, I'm sorry. [00:06:31] Speaker 03: I beg your pardon. [00:06:32] Speaker 00: The reason that the court below found infringement was because of the way the court construed the claim. [00:06:40] Speaker 03: For literal infringement? [00:06:42] Speaker 03: Yes, I think that's true. [00:06:43] Speaker 00: But for doctrine. [00:06:45] Speaker 00: that DOE, the court found that you were a stopped from raising DOE. [00:06:50] Speaker 03: Right. [00:06:50] Speaker 03: It did not get to the merits of the doctrine of equivalence. [00:06:54] Speaker 03: It grew on prosecution history as stopped. [00:06:57] Speaker 00: So if we entered a judgment as to DOE, and the only ground below was that you were a stopped, then that means that we adopted that ground, right? [00:07:08] Speaker 00: There was no alternative ground for why there would be no DOE. [00:07:13] Speaker 03: Right? [00:07:13] Speaker 03: Yes, that's correct. [00:07:14] Speaker 03: That's correct. [00:07:16] Speaker 03: But the point is whether or not what you have by affirming the lower court and the judgment is you have made a decision with respect to the claim construction. [00:07:32] Speaker 03: And that is what the collateral stable issue is in this case. [00:07:35] Speaker 03: It's not whether or not the judgment is proper or not. [00:07:40] Speaker 03: The question is whether or not the claim construction in the original case is binding in this case. [00:07:47] Speaker 00: Were there multiple limitations on each claim that were found not to be satisfied? [00:07:55] Speaker 03: Well, my second argument, Your Honor, is that there was no adjudication of claim two in the first case. [00:08:04] Speaker 03: There was no construction of claim two, claim two being dependent on claim one. [00:08:10] Speaker 03: There was no holding of non-infringement. [00:08:15] Speaker 03: There was no holding of invalidity. [00:08:17] Speaker 03: So claim two was not fully adjudicated. [00:08:21] Speaker 00: Both your opponents and the lower court disagreed with that. [00:08:25] Speaker 03: Didn't they? [00:08:28] Speaker 03: I'm not sure that they disagreed with claim two or not. [00:08:31] Speaker 03: What the court did with it is to say, well, if claim one is an independent claim and the claim construction order applies to claim one, the term adjacent in claim one, then if claim one with that construction is not infringed, then claim two cannot be infringed. [00:08:54] Speaker 03: But our argument is if claim two was never adjudicated in the first case, is then we take what is adjudicated in the claim construction in claim one and accept that. [00:09:07] Speaker 03: That is to say is that the court in that construction said there is one panel. [00:09:15] Speaker 03: The claim was broad. [00:09:17] Speaker 03: It had the term construction member. [00:09:21] Speaker 00: If, in fact, you are bound by the claim construction as to claim one, if we conclude that, then what would be your argument that claim two wouldn't be infringed? [00:09:31] Speaker 03: Because claim two, the court can construe claim two, the same limitation in claim two as in claim one, because there's no estoppel. [00:09:41] Speaker 04: Well, why is there no estoppel? [00:09:43] Speaker 04: If the construction of claim one is binding, as Judge O'Malley says, [00:09:49] Speaker 04: then doesn't that resolve the construction of the same term with respect to claim two? [00:09:54] Speaker 03: No, I don't think so, Your Honor. [00:09:56] Speaker 03: Well, because of the context, all right? [00:09:59] Speaker 03: We have to come back then and look at claim one. [00:10:03] Speaker 00: But the language is employed in both claims, right? [00:10:09] Speaker 00: Say again, please? [00:10:10] Speaker 00: The same language applies to both claims. [00:10:12] Speaker 00: Of course it is, yes. [00:10:14] Speaker 00: that same language is read as the court read it in claim one, and as we affirmed it in claim one, then there's no way that claim two could infringe, right? [00:10:25] Speaker 03: No, I disagree, Your Honor. [00:10:28] Speaker 03: When a limitation is construed in an independent claim, and then nothing is done with claim two, [00:10:41] Speaker 03: that there was no construction of claim two. [00:10:46] Speaker 03: Now you come before the court in a second case and say, claim two was never construed. [00:10:52] Speaker 00: So you're saying that the exact same language could be construed differently? [00:10:57] Speaker 03: In the context of a different claim, yes. [00:11:01] Speaker 04: So if you had a claim one as to a violent case, [00:11:08] Speaker 04: And claim one is to a new type of violin case. [00:11:14] Speaker 04: Claim two, which has a particular kind of clasp on it. [00:11:18] Speaker 04: Claim two is to that violin case only it has to be black. [00:11:24] Speaker 04: OK? [00:11:24] Speaker 04: And that's a dependent claim. [00:11:26] Speaker 04: And the construction of the case and the clasp in the first case is that the clasp [00:11:33] Speaker 04: has to be a particular kind of double-edged clasp. [00:11:40] Speaker 04: And in the second case, you have exactly the same product. [00:11:45] Speaker 04: But you say, aha, because they have a black violin case, I'm going to sue them under claim two, even though the clasp is exactly the same clasp that was held not to be within the claim in the first case. [00:12:00] Speaker 04: You're saying you could still go ahead with claim two? [00:12:03] Speaker 03: Yes, because in your example, you said both products are the same. [00:12:11] Speaker 03: Again, I'm going to come back to claim one. [00:12:13] Speaker 03: Claim one recited a construction member. [00:12:16] Speaker 03: The spec said that a construction member may be a panel or a block. [00:12:22] Speaker 03: When the court construed the prosecution history, it said, [00:12:28] Speaker 03: It added the word panel into claim one. [00:12:33] Speaker 03: It thus limited claim one to panel. [00:12:36] Speaker 00: What claim did you assert in Ray Wardwell? [00:12:41] Speaker 03: Excuse me, claim one, Your Honor. [00:12:42] Speaker 03: You didn't assert claim two? [00:12:44] Speaker 03: No, we did not assert claim two. [00:12:45] Speaker 03: So coming back to your example, Judge Bryson, [00:12:53] Speaker 03: What we have is in claim one, we have a panel. [00:12:57] Speaker 03: In claim two, it recites a block. [00:13:01] Speaker 03: A block has two panels. [00:13:03] Speaker 03: We have two different products, all right? [00:13:06] Speaker 03: As in many dependent claims, you add limitations, and it brings the claim outside of what was in the original claim. [00:13:18] Speaker 03: In other words, claim two was fine, [00:13:21] Speaker 03: before the construction, because claim two said it's a block, and claim three said it's a panel, and claim one said it's a block or a panel. [00:13:31] Speaker 03: But when the judge construed the prosecution history, the judge amended, if you will, claim one. [00:13:41] Speaker 04: And you didn't agree with what the judge did. [00:13:45] Speaker 04: Of course not. [00:13:45] Speaker 04: No, but that's the issue that you took to the Court of Appeals and lost on. [00:13:50] Speaker 03: That is true and that's why I'm not here arguing claim one. [00:13:56] Speaker 03: I'm saying that claim two is a different product and that consequently is the same limitation in claim one that was construed adversely leading to non-literal infringement when placed in claim two in the context of this different product requires additional construction. [00:14:17] Speaker 03: And that construction is explicit in claim two. [00:14:22] Speaker 03: It says that if this is a panel, excuse me, this is a block. [00:14:28] Speaker 03: The block has two panels. [00:14:30] Speaker 03: There are two rows of projections and recesses. [00:14:33] Speaker 03: Again, that limitation taken from claim one, right? [00:14:37] Speaker 03: And now it says that each of the rows of projections and recesses is on one panel, and the second is on the other panel. [00:14:48] Speaker 03: And when you reach that conclusion is, then you have infringement in this case. [00:14:54] Speaker 03: So it makes all the difference in the world. [00:14:57] Speaker 00: In the prior case, you had different defendants. [00:15:00] Speaker 00: And you didn't accuse them of infringing the same claims, right? [00:15:10] Speaker 00: You had some defendants that you said infringed claim one, and some that you said infringed claim two. [00:15:15] Speaker 03: No. [00:15:16] Speaker 03: That's not correct. [00:15:19] Speaker 03: We brought all the claims in the complaint. [00:15:23] Speaker 03: And when we got to the claim construction, the court said, because of the way the case had been transferred from the Eastern District of Texas, and the way that they proceed is you have a suggestion from the parties as to what words or phrases should be construed. [00:15:45] Speaker 03: And we said to the court that we should construe the term adjacent. [00:15:49] Speaker 03: And there's another limitation, and that's not really important here. [00:15:55] Speaker 03: So what the court below did is it construed claim one. [00:16:00] Speaker 03: It looked for infringement and found no literal infringement of claim one. [00:16:05] Speaker 03: It found no infringement under the doctrine of equivalence of claim one. [00:16:11] Speaker 03: And so consequently, it had no effect on claim two. [00:16:16] Speaker 03: And our argument simply is that limitation that was, and we accept that limitation lamentably, but we accept that limitation was properly construed in the first case. [00:16:30] Speaker 03: But that limitation, when now we move it to the dependent claim, must be construed again. [00:16:38] Speaker 00: more than use up your time. [00:16:39] Speaker 00: I'll give you two minutes for rebuttal. [00:16:47] Speaker 01: Thank you. [00:16:48] Speaker 01: May it please the court? [00:16:50] Speaker 01: Your honor, I'd like to begin by directing you to a certain page within the appendix to address the judge's question about whether claim two was asserted. [00:17:02] Speaker 01: Can you speak up just a little bit? [00:17:03] Speaker 01: Sure. [00:17:03] Speaker 01: To determine whether claim two was asserted or not. [00:17:06] Speaker 01: And that is appendix page 4205 and 4206. [00:17:12] Speaker 01: It's the Integra specs asserted claims. [00:17:18] Speaker 01: This was the asserted claims that were asserted against the products that are relevant here. [00:17:24] Speaker 01: And on page two, or on 4206, we see the listing of asserted claims. [00:17:30] Speaker 00: Yeah, I see that. [00:17:31] Speaker 00: But when you look at the judge's order, [00:17:36] Speaker 00: The judge's order doesn't really differentiate between the claims. [00:17:40] Speaker 00: That's right. [00:17:41] Speaker 00: It's real awkward. [00:17:43] Speaker 00: Absolutely. [00:17:43] Speaker 00: So what are we to make of that? [00:17:44] Speaker 01: Because claim two incorporates all the limitations of claim one and the claim terms that were construed were in claim one. [00:17:57] Speaker 01: Therefore, if the constructions of the terms in claim one were dispositive, [00:18:03] Speaker 01: it would resolve the issues. [00:18:05] Speaker 00: Right. [00:18:05] Speaker 00: So in other words, they never really actually even asserted claim one. [00:18:08] Speaker 00: The court was just using claim one because it was representative of the limitations that appeared in every other claim. [00:18:16] Speaker 01: Correct, Your Honor. [00:18:18] Speaker 01: That's my understanding. [00:18:22] Speaker 01: And also in regard to the affirmance of the district court's non-infringement judgments in reward law, [00:18:32] Speaker 01: I believe we can specifically determine from only the Rule 36 affirmance that the two claim constructions on appeal were considered by this Court as being without legal error. [00:18:50] Speaker 00: Because there are two separate claim constructions, did the court actually find that neither limitation was satisfied, or did they just simply say that it didn't satisfy all the limitations of the claim? [00:19:05] Speaker 01: Those particular limitations, Your Honor. [00:19:09] Speaker 01: So in the first non-affringement judgment that's relevant for one of our estoppel claims regarding the Nodura product that has one row of projections and recesses on each [00:19:20] Speaker 01: that issue there was the adjacent limitation. [00:19:24] Speaker 01: So the court first construed the adjacent limitation and determined that the accused Indura product did not infringe that limitation, you know, literally under the doctoral equivalent. [00:19:36] Speaker 01: Then the second non-infringing judgment that's relevant here regards the adjacent limitation. [00:19:41] Speaker 01: Oh, no, I'm sorry, the dimension limitation. [00:19:43] Speaker 01: Dimension. [00:19:43] Speaker 01: Yeah, so the court construed the dimension. [00:19:45] Speaker 04: What was the product that was at issue in the first case in that? [00:19:49] Speaker 01: For which claim construction? [00:19:51] Speaker 01: For dimension. [00:19:52] Speaker 01: For dimension, that was the reward I formed product. [00:19:54] Speaker 01: And that was the product that had two rows with projections that varied in volume by greater than 10%. [00:19:59] Speaker 00: So in other words, both claim constructions were necessary for the lower court's judgment. [00:20:08] Speaker 01: That's correct. [00:20:09] Speaker 01: So neither claim construction could support both non-infringing judgments. [00:20:15] Speaker 01: And also, yeah, they were expressly necessary, because that was the only limitation that was applied to each respective non-infringement judgment. [00:20:23] Speaker 04: And on appeal, those two claim construction issues were raised, one with respect to product one, the New Door product, two with respect to the second product, the I-Form. [00:20:34] Speaker 04: Exactly correct. [00:20:35] Speaker 04: And the two products that are at issue here, you say, are [00:20:39] Speaker 04: meaningful, in all meaningful respects, identical to the Randura and iPhone. [00:20:44] Speaker 01: That's correct, Your Honor. [00:20:45] Speaker 01: I don't think in that respect. [00:20:47] Speaker 00: Now, on that last point, all of our cases where we say that the second product is not meaningfully different than the first, those are all cases with respect to design arounds by the same defendant. [00:21:00] Speaker 00: Are they not? [00:21:01] Speaker 00: I don't believe so, Your Honor. [00:21:05] Speaker 00: I mean, it's one thing to say that there is collateral estoppel as to a claim construction, but quite another to say that there's collateral estoppel as to infringement. [00:21:15] Speaker 00: Now, I think in this particular case that there is a stipulation that there would be no infringement if the claim construction stands, or alternatively that the lower court said no reasonable jury could find infringement. [00:21:29] Speaker 00: But I don't think with different parties [00:21:32] Speaker 00: that you could collaterally stop an infringement finding as to a different product? [00:21:40] Speaker 01: I'm not sure that's correct. [00:21:41] Speaker 01: I believe so. [00:21:43] Speaker 02: If it's a different product, how could you? [00:21:46] Speaker 01: Well, because the issue is the same. [00:21:47] Speaker 01: The issue is exactly the same. [00:21:48] Speaker 04: So I take it that the issue would be that there is collateral estoppel with respect to that particular claim limitation, but that doesn't necessarily [00:22:02] Speaker 04: Judge Amali says that doesn't necessarily mean that's the end of the case, assuming that the product has other features and so forth. [00:22:10] Speaker 04: And there may be some reason that the product, either through the doctrine of equivalence or otherwise, doesn't end up being foreclosed from infringement by that claim construction. [00:22:20] Speaker 01: I think what matters are the features of the product, whether it's made by the same party or a different party. [00:22:26] Speaker 00: But the question is, does that matter because of collateral estoppel, or does it matter because the court would say, given that this other product doesn't infringe, no reasonable jury could find that this one does, or that you have, which I think you have here, a stipulation of non-infringement, assuming the claim of construction stands. [00:22:45] Speaker 00: In other words, it's one thing for us to say where someone is trying to design around, and they've already been found to have infringed [00:22:57] Speaker 00: a claim that we look to see if it's patentably distinct, but quite another for us to say for a totally unrelated party that you can collaterally stop an infringement fine. [00:23:11] Speaker 01: I think that's exactly what collateral estoppel is designed to prevent, Your Honor. [00:23:14] Speaker 01: And my understanding of the case law regarding whether it's the same issue or not, it's not whether it's the same party. [00:23:21] Speaker 01: It's whether the features of the products [00:23:26] Speaker 01: are the same. [00:23:29] Speaker 01: So whether if it's made by the party who made the same product in a prior case or a different party, what matters is the features. [00:23:36] Speaker 01: So in the first case, in the reward wall case, we'll take the Nodura product for an example. [00:23:42] Speaker 01: There, the court made a decision that a block with one row of projections and recesses on the top and bottom of each side wall simply cannot infringe the adjacent limitation, either literally or the doctrine of equivalence. [00:23:56] Speaker 01: So anyone else who makes that same block, whether it's Nadura, the party involved in the first case, or anyone else, they still have the same features. [00:24:06] Speaker 01: And so that creates the exact same non-infringement issue. [00:24:11] Speaker 01: I'm not sure if I'm answering your question properly, Your Honor, or if I misunderstood it. [00:24:15] Speaker 04: Well, let's take the dimension. [00:24:17] Speaker 04: Let me see if I understand where you're going with this. [00:24:20] Speaker 04: Sure. [00:24:21] Speaker 04: Let's take the dimension limitation, which is, [00:24:23] Speaker 04: within 10% plus or minus, I think, is the way it was initially construed. [00:24:28] Speaker 04: So your position, I take it, is that that decision of the district court in the first case, affirmed by this court by Rule 36, is binding and by collateral estoppel on all subsequent efforts by the plaintiff to sue other parties with regard to other products. [00:24:47] Speaker 04: So the decision as to what the word dimension means is what's binding. [00:24:52] Speaker 04: On the other hand, if somebody else comes in with a product that is different in that it's much closer to 10 percent or maybe right at the margin of 10 percent, that binding claim construction might not result in a judgment of non-infringement. [00:25:07] Speaker 04: So that other product, you'll have to look at the other product and see if the binding part of the claim construction ends up barring that [00:25:16] Speaker 04: that infringement action, right? [00:25:18] Speaker 01: I think that's right, yeah, generally. [00:25:19] Speaker 04: But as far as the claim construction itself, that's fixed by virtue of collateral stoppage. [00:25:26] Speaker 01: Yes. [00:25:27] Speaker 01: OK. [00:25:28] Speaker 01: I think that's right. [00:25:29] Speaker 01: And here, we have the added issue that the patentee never appealed the non-infringement determination. [00:25:38] Speaker 01: So as far as that goes, that's wrapped into [00:25:41] Speaker 01: the firmance under rule 36 and barred from a further judication as being part of the legal order. [00:25:49] Speaker 00: Yes, that's race judicata as to those defendants. [00:25:54] Speaker 00: And all of those cases where we talk about not meaningfully different are race judicata cases. [00:26:00] Speaker 00: And they are cases where it is the same party. [00:26:03] Speaker 00: Here we have different parties. [00:26:04] Speaker 00: And I'm not saying that in this particular case that the claim constructions wouldn't kill [00:26:10] Speaker 00: their infringement argument, because I think they've stipulated that it would. [00:26:14] Speaker 00: But I'm saying that whether it's under collateral estoppel or some other theory is an important distinction legally. [00:26:22] Speaker 01: And that's exactly what collateral estoppel is supposed to be designed for, though, to stop the issue from being really litigated against someone else. [00:26:29] Speaker 00: But the issue is, does product A infringe? [00:26:31] Speaker 00: That was decided. [00:26:32] Speaker 00: The issue of whether product B infringes has never been decided. [00:26:36] Speaker 01: It has. [00:26:37] Speaker 00: No, it hasn't. [00:26:38] Speaker 00: No, it hasn't. [00:26:39] Speaker 00: The best you can say is that because they're not sufficiently different, or because they're at least not patentably different, that therefore the court should enter summary judgment, or the other side, in good faith, has to stipulate to non-infringement. [00:26:54] Speaker 00: But it doesn't mean it's been decided. [00:26:56] Speaker 01: OK, that's fair for that particular part. [00:26:58] Speaker 01: But the issue has been decided. [00:27:01] Speaker 01: The issue is what matters. [00:27:02] Speaker 04: The claim construction issue, you're saying, has been decided. [00:27:05] Speaker 04: But the issue of infringement has not. [00:27:07] Speaker 04: because the other product may not be foreclosed by the claim construction in the first case. [00:27:14] Speaker 04: Even applying that claim construction, that product may still infringe. [00:27:19] Speaker 01: Yes, and I would go a step further in that if the accused product in the second case simply had the same features, the exact same feature that was in the product in the first case that was determined to not infringe, then the second product simply cannot infringe. [00:27:38] Speaker 00: But not under collateral. [00:27:39] Speaker 04: That would be a separate determination. [00:27:41] Speaker 04: The judge would have to go to step two, which is that the judge would have to say, OK, I'm looking at these two products. [00:27:48] Speaker 04: There is no way that a jury could find that this product infringes, given the claim construction that I'm bound by. [00:27:57] Speaker 00: And it appears to me that that's exactly what Judge Battaglia did in this case. [00:28:02] Speaker 01: I think so, yes. [00:28:04] Speaker 00: All right, with respect to DOE, [00:28:07] Speaker 00: Was that issue raised in the first appeal? [00:28:12] Speaker 00: No. [00:28:13] Speaker 00: So they didn't appeal the DOE finding? [00:28:17] Speaker 01: No, they didn't appeal any of the decisions underlying the non-infringement judgments. [00:28:22] Speaker 01: We only appealed the claim construction issues. [00:28:26] Speaker 04: Well, they appealed the non-infringement because they appealed the claim construction and the claim construction. [00:28:32] Speaker 01: Right, yes. [00:28:34] Speaker 00: But as to DOE, as to the [00:28:36] Speaker 00: the finding in the first case that they were stopped from asserting DOE. [00:28:41] Speaker 00: They did not appeal that, right? [00:28:44] Speaker 01: Not as a separate issue, as it's assumed in the claim construction. [00:28:48] Speaker 01: Presumably, yes. [00:28:49] Speaker 01: But they did not. [00:28:53] Speaker 00: Yes, right. [00:28:54] Speaker 00: So the lower court judgment on that one stood because it was never appealed. [00:28:58] Speaker 01: That's right. [00:29:02] Speaker ?: That's right. [00:29:03] Speaker ?: OK. [00:29:03] Speaker 01: Any other questions? [00:29:06] Speaker 01: Thank you. [00:29:08] Speaker 00: Okay, two minutes. [00:29:18] Speaker 03: I'm going to come back to, and it's the difference in the products that we're talking about and the difference in the claims. [00:29:25] Speaker 03: Because claim one, as construed, applied to a panel. [00:29:31] Speaker 03: Consequently, the court then rendered a non-infringement judgment, DOE, and literal infringement with respect to a panel. [00:29:40] Speaker 03: The claim did not read on a panel. [00:29:43] Speaker 00: But in this case, you stipulated that if, in fact, the claim constructions, if you were bound by those claim constructions, that there would be no infringement as to this product, right? [00:29:55] Speaker 03: No. [00:29:56] Speaker 03: No, what we stipulated to was we said that the claim construction is, we're going to agree that the claim construction is correct. [00:30:07] Speaker 03: However, that's not binding on the construction of claim two, because claim two addresses a different product. [00:30:18] Speaker 03: Where's the stipulation in the record, please? [00:30:22] Speaker 03: I'm not sure I could find that off the top of my head, Your Honor. [00:30:28] Speaker 03: But the point was simply is if we had stipulated that the claim was that perhaps I've confused you, Your Honor. [00:30:40] Speaker 03: I think we stipulated that claim one is not infringed in the second case. [00:30:47] Speaker 03: That's clear. [00:30:51] Speaker 03: But that's not the claim asserted. [00:30:53] Speaker 03: The claim asserted in the second case is claim two. [00:30:56] Speaker 00: Well, you stipulated that you can't meet the construed limitations. [00:31:02] Speaker 03: Correct, yes. [00:31:04] Speaker 03: Which is the same thing as saying that we couldn't, that we could not, or that we must stipulate to infringement. [00:31:11] Speaker 03: But again, I'm drawing the distinction between claim one and claim two and what we stipulated to. [00:31:16] Speaker 03: And I take that Judge Bryson's point, and that is there's a difference in the product. [00:31:22] Speaker 03: Claim one is a panel product. [00:31:24] Speaker 03: Claim two is a block product. [00:31:27] Speaker 03: So inasmuch as the claim limitation adjacent was decided in the first case, it was decided in the context of a panel. [00:31:40] Speaker 03: And what we're saying is since we now have a different product, [00:31:44] Speaker 03: We're talking about a block that the claim language that is in the independent claim must be reconstrued in light of this different product. [00:31:58] Speaker 03: And this different product had two panels. [00:32:01] Speaker 03: And therefore, you could have one row on one panel, one row on the other. [00:32:07] Speaker 03: Whereas in claim one, there's only one panel, so both rows have to be on the same panel. [00:32:13] Speaker 03: Once the court said, [00:32:14] Speaker 03: that claim one is limited to a panel. [00:32:17] Speaker 03: It inexorably followed that both rows were on the same panel. [00:32:23] Speaker 03: And when both rows are on the same panel, there is no infringement. [00:32:27] Speaker 03: So what we're saying is, is when you get to claim two and you have two panels, you have, again, carrying the limitation at least two rows from claim one into claim two, now you can position those two [00:32:41] Speaker 03: those two rows, one on one panel, one on the other panel. [00:32:46] Speaker 03: And consequently, a block which had one row on each panel would infringe claim two. [00:32:52] Speaker 03: It would not infringe claim one, of course. [00:32:55] Speaker 00: Okay. [00:32:56] Speaker 00: Thank you. [00:32:58] Speaker 00: The cases will be submitted. [00:32:59] Speaker 00: This court is adjourned. [00:33:15] Speaker 02: Don't of course enjoy it, it's more of an idea.