[00:00:33] Speaker 00:
Is counsel present for the next case?

[00:00:52] Speaker 00:
Please come forward.

[00:01:17] Speaker 00:
Okay, this is number 17-1456, AutoCaps LLC against the Clorox Company.

[00:01:24] Speaker 00:
Mr. Zimmerman?

[00:01:44] Speaker 04:
Good morning, Your Honor.

[00:01:45] Speaker 04:
May I please the Court?

[00:01:51] Speaker 04:
I represent the appellant auto caps in this case.

[00:01:55] Speaker 04:
And we believe that the claim construction and decisions on summary judgment below should be reversed because the district court committed error three different grounds.

[00:02:06] Speaker 04:
One, they incorrectly construed the claim terms at issue.

[00:02:09] Speaker 04:
Two, they disregarded evidence before the court without explaining why they disregarded the evidence.

[00:02:16] Speaker 04:
And for the evidence they did consider, they provided no analysis

[00:02:21] Speaker 04:
provides a basis for understanding how it reaches decisions.

[00:02:24] Speaker 04:
And then third, they fail after realizing, as shown at appendix page 9, that the parties disagreed, quote, as to the plain, ordinary meaning, close quote, of these three claim terms to conduct a formal Markman hearing.

[00:02:39] Speaker 04:
So our position at that point, the court should have stopped and should have instituted a formal Markman process.

[00:02:43] Speaker 01:
How can outer surface be the same as inner surface?

[00:02:48] Speaker 04:
Well, outer surface.

[00:02:49] Speaker 04:
is not the same as the inner surface.

[00:02:51] Speaker 04:
However, there is a boundary between the two.

[00:02:56] Speaker 04:
But to address the point I think you're getting to, the court disregarded something that Clorox actually admitted on this first claim limitation mounted on the inner surface.

[00:03:08] Speaker 04:
Specifically, the district court completely ignored that.

[00:03:13] Speaker 04:
At page 23 of its responsive brief, Clorox says one can quote,

[00:03:18] Speaker 04:
Imagine a design where the diptooth goes into the bottle at these points and then expands out to create a flange mounted to the inner surface of the side wall."

[00:03:29] Speaker 04:
That's exactly what Deque's Clorox device does.

[00:03:32] Speaker 04:
If you look at page 9, 10 of Clorox... It doesn't go inside all the way down.

[00:03:38] Speaker 04:
Excuse me?

[00:03:39] Speaker 01:
It doesn't extend on the inside all the way down, right?

[00:03:44] Speaker 04:
The claim does not require that it be mounted along the entire interior.

[00:03:48] Speaker 04:
It's like if you mount a picture on a wall, it's mounted at one point where it's nailed.

[00:03:54] Speaker 04:
The claim only requires that it be mounted on the interior.

[00:03:56] Speaker 04:
So if you permit me, I'll show you this.

[00:04:21] Speaker 04:
is a flange here.

[00:04:23] Speaker 04:
It's essentially mounted on the interior.

[00:04:24] Speaker 04:
This is exactly what Clorox is talking about.

[00:04:27] Speaker 04:
That's all the claim requires, that it be mounted on the interior.

[00:04:30] Speaker 01:
What about extending from the open top rather than two inches below?

[00:04:36] Speaker 04:
Again, that's another thing we believe the court erred on.

[00:04:38] Speaker 04:
So with regard to the open top, if you look at appendix page 13, the court incorrectly construed quote, top of close quote, rather than quote, extending from the open top.

[00:04:52] Speaker 04:
close quote.

[00:04:53] Speaker 04:
And the court provides no analysis or explanation for its conclusion at appendix page 14 that this limitation means, quote, the passageway extends all the way from the highest point of the mount of the bottle, close quote, and is not met if it, quote, begins two inches below the open top, close quote.

[00:05:13] Speaker 04:
The court does not cite any intrinsic evidence, does not cite any dictionary definitions to support its

[00:05:20] Speaker 04:
conclusion, its construction, or its conclusion that the limitation is not met under the doctrine of equivalence.

[00:05:26] Speaker 04:
The court also ignored Mr. Foster's expert testimony at appendix page 277 regarding the meaning of this term.

[00:05:35] Speaker 04:
And for that reason, we believe a genuine issue of material effect regarding the meaning of this disputed term exists that precludes the grant of summary judgment.

[00:05:43] Speaker 04:
The third claim limitation was, quote, only if the passageway

[00:05:48] Speaker 04:
and it ends, and this is what we believe is operative, is engaged in a fluid connection.

[00:05:56] Speaker 04:
So the term requires the establishment of a fluid connection between the different passageways, the cap passageway and the container passageway.

[00:06:04] Speaker 04:
The fact that the cap of the Clorox bottle can be mounted to the container of the Clorox bottle in a non-aligned, non-fluid connection does not change this determination.

[00:06:17] Speaker 04:
The patent itself talks repeatedly and in critical places about the fact that the purpose is to establish a fluid connection to be able to pump fluid from the reservoir of the container for dispersal of the pump cap.

[00:06:32] Speaker 04:
In connection with this issue, Clorox cites the Hoh reference.

[00:06:37] Speaker 04:
And the Hoh reference does not cite, does not change, excuse me, this foregone conclusion as Hoh pertains to an axial limitation

[00:06:45] Speaker 04:
that is shown as appendix page 179, AutoCAPS overcame during prosecution by amending claim one to recite that, quote, the pump passageway is non-axial relative to the pump mechanism, close quote.

[00:06:59] Speaker 04:
That means they are not in the same, do not align on the same axis.

[00:07:05] Speaker 04:
In an earlier amendment, it is true, as Clorox notes at page 30 of its response brief, that to overcome Ho, AutoCAPS argued

[00:07:15] Speaker 04:
that, quote, nowhere does Ho teach close quote that the cap can be detachably coupled to the neck of the container only if the cap passageway and container passageway are aligned.

[00:07:26] Speaker 04:
However, this argument was unsuccessful, as the rejection of patentability of claim one was subsequently maintained in the next office action issued by the PTO.

[00:07:36] Speaker 04:
And that's shown at appendix page 169.

[00:07:39] Speaker 04:
And likewise for this third claim limitation, as the others, the courts not cite any intrinsic evidence or dictionary definitions

[00:07:45] Speaker 04:
to support its construction of the term.

[00:07:48] Speaker 04:
The court also ignored Mr. Foster's expert testimony at appendix page 277 regarding the meaning of this term.

[00:07:55] Speaker 04:
And again, for that reason, believe a genuine issue of material fact regarding the meaning of this disputed term exists and precludes summary judgment.

[00:08:04] Speaker 04:
As far as the court's failure to consider certain evidence and not conduct a formal markman, I think it's critical here.

[00:08:14] Speaker 04:
Once the court realized that the parties disputed what the ordinary customary meaning of these terms that the parties initially believed there was no dispute about, the court should have held a market proceeding, whereby we could have conducted some claim construction discovery, prepared a joint claim chart, and submitted formal briefs.

[00:08:31] Speaker 04:
The failure to do so renders Markman meaningless.

[00:08:35] Speaker 04:
I mean, Markman is so important.

[00:08:36] Speaker 01:
These are pretty simple terms in this patent.

[00:08:39] Speaker 04:
Well, that's what we thought.

[00:08:40] Speaker 04:
But apparently there's a big factual dispute between the parties.

[00:08:45] Speaker 04:
And consequently, we believe that had Markin occurred, if the disk report had followed the Markin process, we believe it likely would have been better formed and would have ruled in all caps favor.

[00:09:00] Speaker 04:
Also, the disk report, in addition to ignoring, for example, if you look at its decision, appendix pages 1 to 21, they don't even discuss dictionary definitions.

[00:09:10] Speaker 04:
So they totally ignore that.

[00:09:12] Speaker 04:
And as far as the expert testimony, they reference it in footnote two, which is page 10, appendix page 10.

[00:09:19] Speaker 04:
All they acknowledge is that there was expert testimony, but they don't provide any analysis or explain why they disregarded it.

[00:09:26] Speaker 04:
And as in Microsoft Corp versus Parallel Networks and Googling versus Intellectual Ventures, it's important that the court explain why they either did consider arguments or if they did not consider the rationale for not doing so.

[00:09:43] Speaker 04:
I would also point out that the court didn't address certain arguments we made.

[00:09:46] Speaker 04:
We at Palin AutoCaps made an argument regarding the shrink wrap as an alternative construction, and the court did not address that either.

[00:09:55] Speaker 04:
If the panel has any questions, I'm happy to answer them.

[00:10:00] Speaker 00:
All right, thank you.

[00:10:02] Speaker 00:
We'll save the rest of your time through re-pedal.

[00:10:16] Speaker 00:
Mr. Isbestor.

[00:10:25] Speaker 03:
Thank you, Your Honor.

[00:10:27] Speaker 03:
May it please the court, James Isbestor on behalf of Appellee and the cross appellant, the Clorox Company.

[00:10:33] Speaker 03:
With me at council table is Julian Bakery, Chief of the IP Council for Clorox.

[00:10:40] Speaker 03:
As it must, appellant here disputes all three grounds upon which the district court

[00:10:44] Speaker 03:
granted summary judgment of non-infringement.

[00:10:47] Speaker 03:
I'd like to begin with the third ground, the coupling limitation, in my remarks.

[00:10:51] Speaker 03:
And I do so because the coupling limitation presents no disputed questions of fact.

[00:10:58] Speaker 03:
The court, I believe, has an exemplar of the bottle.

[00:11:02] Speaker 03:
And it is indisputable that the cap can mount the bottle forward.

[00:11:10] Speaker 03:
Actually, that's the backward position, Your Honors, or in the forward position.

[00:11:14] Speaker 03:
And only in the forward position does the bottle actually satisfy the claim limitations.

[00:11:22] Speaker 03:
There is no dispute about that.

[00:11:23] Speaker 03:
In addition, there is no dispute about the doctrine of equivalence with respect to the coupling limitation.

[00:11:30] Speaker 03:
What we're left with is the simple question of law.

[00:11:34] Speaker 03:
What is the right construction of that term, and in particular, the only if language?

[00:11:41] Speaker 03:
The parties instructed.

[00:11:44] Speaker 03:
The court that we had no dispute as to whether there was special construction required of these terms and that the terms could be given their plain, ordinary meaning.

[00:11:54] Speaker 03:
That is what the court did.

[00:11:55] Speaker 03:
And appellee entirely accepts the district court's interpretation of the only if language.

[00:12:07] Speaker 03:
The district court stated, only if makes it clear that the ceiling engagement between the container passageway

[00:12:14] Speaker 03:
and the pump passageway is a necessary condition.

[00:12:18] Speaker 03:
If the two do not create a sealing engagement, the two will not couple.

[00:12:22] Speaker 03:
That seems the straightforward, plain, ordinary interpretation of the only if language in this claim.

[00:12:30] Speaker 03:
And it is the only interpretation that's consistent with the specification.

[00:12:34] Speaker 03:
At three separate places in the specification, column four, line 30 to 38, column four, line 45 to 50,

[00:12:42] Speaker 03:
in column four, line 57 to 63, the specification emphasizes that the coupling arrangement between the cap and container must be such that the cap will couple to the container only if the container passageway aligns with the pump passageway and thereby creates the fluid connection.

[00:13:05] Speaker 03:
And finally, the prosecution history confirms exactly this.

[00:13:11] Speaker 03:
My friend has commented about the HO reference.

[00:13:14] Speaker 03:
The HO reference is a patent to a bottle that has an integral dip tube mounted inside the bottle.

[00:13:22] Speaker 03:
The dip tube ends somewhat below the open mouth of the bottle.

[00:13:28] Speaker 03:
The cap has a pipe that descends and lines up with the top of the dip tube.

[00:13:35] Speaker 03:
As you screw the cap on, you create that sealed engagement between the two pipes.

[00:13:42] Speaker 01:
How about the inside limitation?

[00:13:46] Speaker 01:
The opposing counsel says that the tube in your product eventually comes in.

[00:13:54] Speaker 01:
So it's on the inner side.

[00:13:58] Speaker 03:
We have provided, Your Honor, the cross-section photographs.

[00:14:03] Speaker 03:
And I think you will find them, first of all, incorporated into Mr. Asselton's declaration at Appendix

[00:14:11] Speaker 03:
215 through 217, and then the full photographs at appendix 223, 224, and 225.

[00:14:22] Speaker 03:
And particularly if you look, for example, at 225, you will see the through holes that Mr. Asselton describes in his declaration.

[00:14:31] Speaker 03:
The wall of the container has a hole.

[00:14:34] Speaker 03:
The dip tube, the external dip tube mounts to the outside of the container.

[00:14:41] Speaker 03:
ceiling around that hole.

[00:14:43] Speaker 03:
And it is necessary, of course, that the volume inside the container be able to pass into the interior space of the dip tube.

[00:14:54] Speaker 03:
That's the purpose of the dip tube.

[00:14:57] Speaker 03:
But there is nothing that suggests that, from the cross-sections or from Mr. Asselton's declaration, that the dip tube is in any way affixed to the inner surface of the container wall.

[00:15:10] Speaker 03:
And remember,

[00:15:11] Speaker 03:
affixed to is, in fact, the appellant's claim construction.

[00:15:17] Speaker 03:
Appellant suggests that the plain-ordinary meaning of mounted is affixed to, and we don't dispute that.

[00:15:23] Speaker 03:
What we point out is that the container passageway, the dip tube in the Clorox smart tube bottle, is not affixed to the inside wall of the container.

[00:15:39] Speaker 03:
I take it that perhaps I should move to the third element.

[00:15:44] Speaker 03:
And this is the extend from limitation.

[00:15:50] Speaker 03:
And before I begin discussing the specifics with respect to the Clorox bottle, let me direct the court's attention to the specification, column one, where the inventor describes the purpose of this invention.

[00:16:06] Speaker 03:
Now, in Judge Cogan's

[00:16:09] Speaker 03:
opinion, he describes the frustration of not being able to suck up the last few drops of liquid in the bottle and the way in which the Clorox Mar II bottle addresses that.

[00:16:20] Speaker 03:
But that is not the problem that this invention of the 743 patent was intended to resolve.

[00:16:28] Speaker 03:
As stated at column one, line 21, when the pump is mounted on the container,

[00:16:34] Speaker 03:
it must first be placed in an elevated position with the lower end of the pickup tube above the entrance to the container mouth.

[00:16:44] Speaker 03:
So we're talking about the old-fashioned spray bottle in which you have a bottle, and then you have the pump mechanism.

[00:16:52] Speaker 03:
And dangling from the pump mechanism is this pickup tube.

[00:16:58] Speaker 03:
And as the patent notes, directing this pickup tube into the bottle

[00:17:05] Speaker 03:
makes assembling the pump with the container a relatively slow process.

[00:17:10] Speaker 03:
The purpose of this patent, the innovation described in this patent, is to make the assembly of the cap onto the bottle in a manufacturing plant easier because you no longer have to purposely feed the dip tube into the bottle and you no longer have to elevate the cap above the bottle.

[00:17:33] Speaker 03:
You can bring the cap in

[00:17:34] Speaker 03:
at the same elevation as the top of the container.

[00:17:40] Speaker 03:
So that is the purpose of the patented technology.

[00:17:47] Speaker 03:
And the language that the court uses, excuse me, that the patentee uses to describe that in claim one is that the, what I've been referring to is the dip tube, what the patent refers to is the container passageway.

[00:18:01] Speaker 03:
extends from the open top of the container.

[00:18:05] Speaker 03:
Because if it's at the open top, then the cap doesn't need to have a dangling pipe that hangs down.

[00:18:13] Speaker 03:
This is exactly the claim construction that the appellant argues to.

[00:18:18] Speaker 03:
The appellant has explained that extending from means stretching forth from a specified area or place.

[00:18:28] Speaker 03:
And the claim says that the specified area or place

[00:18:31] Speaker 03:
is the open top.

[00:18:33] Speaker 03:
Well, it's clear when you look at the bottle that the container passageway of a Clorox bottle doesn't extend from the open top, but here it extends from a point two inches, about 20% of the height of the bottle down from the open top.

[00:18:47] Speaker 01:
Well, what about equivalence?

[00:18:49] Speaker 03:
And thank you, Your Honor, for raising that.

[00:18:54] Speaker 03:
The doctrine of equivalence has been asserted by Appellant with respect to both the mounting limitation and the extend from.

[00:19:01] Speaker 03:
And in both instances, they've suggested that there is substantially the same function and substantially the same result.

[00:19:09] Speaker 03:
And therefore, the tripartite test has been met.

[00:19:13] Speaker 03:
And they've completely overlooked the way.

[00:19:18] Speaker 03:
Now, with respect to the mounting limitation, the way is so very different.

[00:19:23] Speaker 03:
With the through holes are an important

[00:19:26] Speaker 03:
difficult engineering problem, as Mr. Esselstyn described in his declaration, it took 65% of the engineering man hours associated with this container to figure out how to use blow molding to create those through holes in the external channel.

[00:19:45] Speaker 03:
With respect to the extend from limitation, we have

[00:19:54] Speaker 03:
two of the three legs of the tripartite test missing.

[00:19:59] Speaker 03:
First of all, the purpose of the limitation is to ensure the result that there is no necessity for raising the cap above some elevated position above the bottle before one inserts the, before one attaches the cap to the bottle.

[00:20:25] Speaker 03:
And second, that there's no need to purposefully feed the descending dip tube into any particular point.

[00:20:34] Speaker 03:
And indeed, in describing the hole reference, the pellet specifically notes that because the hole reference dip tube is somewhat recessed below the mouth of the container, it's now necessary to purposefully align the pickup to the

[00:20:55] Speaker 03:
to the cap pump with the top of the dip tube.

[00:21:00] Speaker 03:
So the result of the claimed invention is that you can bring the cap in at a level at the top of the container, put it in place, and you're done.

[00:21:13] Speaker 03:
That result is not accomplished with the Clorox product.

[00:21:18] Speaker 03:
You, first of all, have to raise the cap sufficiently to clear the two-inch long

[00:21:25] Speaker 03:
cap pickup, pump pickup.

[00:21:27] Speaker 03:
And second, you have to make sure that the pickup actually mates with the top of the container.

[00:21:34] Speaker 03:
So this product fails to meet the result requirement of the Tripartite test.

[00:21:41] Speaker 03:
Second, because of the manufacturing, you no longer have simply a pipe that ends at the mouth.

[00:21:53] Speaker 03:
And then this

[00:21:54] Speaker 03:
somehow mates to it, you now have this whole new additional structure that needs to be added.

[00:22:01] Speaker 03:
It's a very different way of accomplishing the mating of the cap to the bottle.

[00:22:08] Speaker 03:
So we believe that neither of the way nor result steps of the tripartite test have been that with respect to the extending from limitation.

[00:22:19] Speaker 00:
Do you want to raise the cross-appeal?

[00:22:21] Speaker 00:
Yes, Your Honor.

[00:22:22] Speaker 03:
If I may turn to that, that would be wonderful.

[00:22:28] Speaker 03:
We would like to address a single point.

[00:22:31] Speaker 03:
We understand the abuse of discretion standard applies.

[00:22:33] Speaker 03:
One way, however, in which a district court abuses its discretion is applying the wrong law.

[00:22:40] Speaker 03:
Judge Kogan, in this instance, was deciding a fees motion relatively soon after the octane decision.

[00:22:48] Speaker 03:
The octane decision said that it was no longer necessary to demonstrate that plaintiff had no objectively reasonable basis for its case in order to be entitled to fees under Section 285.

[00:23:00] Speaker 03:
But there hadn't been much law applying that.

[00:23:03] Speaker 03:
And unfortunately, when Jared Cohen went back to consider fees motion, rather than look to what the Supreme Court suggested, exceptional means unusual, uncommon, rare, he instead

[00:23:17] Speaker 03:
looked to the merits of the case, concluded that it was not as close, it was not as simple a case as would justify fees.

[00:23:29] Speaker 01:
He said there were colorable arguments concerning the DOE.

[00:23:36] Speaker 03:
Yes, Your Honor, exactly.

[00:23:39] Speaker 01:
In other words, there was an issue there.

[00:23:42] Speaker 03:
There is an issue there that he wanted to address.

[00:23:45] Speaker 03:
But that is the basis upon which

[00:23:47] Speaker 03:
he ruled on this motion.

[00:23:50] Speaker 03:
The question is, is this a rare, unusual, uncommon case?

[00:23:55] Speaker 03:
We've now gone back and looked at 300 decisions involving non-infringement summary judgment rulings in the past two years.

[00:24:06] Speaker 03:
And this is the only case in which three independent bases for non-infringement were found at summary judgment.

[00:24:18] Speaker 03:
Moreover, in most patent cases, it's not clear whether there is infringement or not.

[00:24:26] Speaker 03:
There's discovery required of the design, the specifics.

[00:24:32] Speaker 03:
When you look at a semiconductor, can you really tell what's going on inside and so forth?

[00:24:36] Speaker 01:
Mr. Zimmerman says there were genuine issues of fact on the basic issues on which he's appealed.

[00:24:43] Speaker 01:
The district judge obviously felt in neither case was there a genuine issue.

[00:24:48] Speaker 01:
that precluded summary judgment.

[00:24:51] Speaker 03:
I agree.

[00:24:54] Speaker 03:
And we feel that Mr. Zimmerman, his client, could have reviewed this product.

[00:25:03] Speaker 03:
It's available in the market.

[00:25:05] Speaker 03:
I believe he actually has many samples of it.

[00:25:08] Speaker 03:
And he could see that there was no mounting to the inner surface wall.

[00:25:12] Speaker 03:
He could see that the pipe does not extend from the open top.

[00:25:18] Speaker 03:
take the cap off and put it on back to front and realize that the limitation, the coupling only if limitation is not met.

[00:25:26] Speaker 03:
He didn't need anything that discovery would have provided.

[00:25:30] Speaker 03:
Furthermore, we brought all these three exact points to auto-cap's attention, to appellant's attention prior to their filing suit.

[00:25:41] Speaker 03:
So A, there were three independent bases, B,

[00:25:45] Speaker 03:
Those independent bases are patent to any casual observer.

[00:25:50] Speaker 03:
And C, the appellant was informed of those before the lawsuit was filed.

[00:25:58] Speaker 03:
After the lawsuit was filed, rather than retracting or withdrawing, they continued to pursue litigation that ultimately was proven to be without merit.

[00:26:11] Speaker 03:
And that included, for example, retaining

[00:26:15] Speaker 03:
Clorox's expert consultant, the person who assisted in the design of this bottle, to serve as their own expert witness, and then refusing to withdraw him when I brought that to Appellant's attention.

[00:26:31] Speaker 03:
So there is a combination of both a case that should never have been brought in the first place with a case that was pursued long after it should have been dismissed.

[00:26:44] Speaker 00:
Thank you.

[00:26:45] Speaker 00:
Any more questions?

[00:26:45] Speaker 00:
OK, thank you.

[00:26:47] Speaker 02:
And I believe I have reserved three minutes.

[00:26:53] Speaker 00:
Well, you have a minute and rebuttal of the cross appeal.

[00:27:03] Speaker 04:
A couple things real briefly.

[00:27:04] Speaker 04:
My colleague, one of the first things he addressed was the only if connection.

[00:27:09] Speaker 04:
And I believe if we listen to the record, one of the things he talked about after describing

[00:27:15] Speaker 04:
the only of connection, the alignment goes, and thereby connects the fluid connection.

[00:27:19] Speaker 04:
That's been my point.

[00:27:22] Speaker 04:
If you look, Your Honors, at the patterns in the abstract, the last three lines of the abstract, it talks about the dispenser permits a fluid arranged within the container to flow through the container passageway.

[00:27:36] Speaker 04:
Clearly, the ability for fluid to flow, to be dispersed, is part of the intention of the invention.

[00:27:44] Speaker 04:
Background of the invention, same thing.

[00:27:46] Speaker 04:
Line 18, 17 to 18, talks about one of the problems containers have is pulling up the liquid product stored within the container when the pump is operating.

[00:27:59] Speaker 04:
So clearly, one of the issues contemplated by this invention is being able to disperse liquid.

[00:28:05] Speaker 04:
And it makes no sense that the device can be aligned in a non-fluid connection.

[00:28:15] Speaker 04:
The ability to line the passageway of the Clorox bottle in a non-fluid connection is really relevant, since they can also be aligned in a fluid connection.

[00:28:24] Speaker 04:
And it's the alignment in a fluid connection that gives rise to the infringement, because that's what permits dispersal of the fluid.

[00:28:34] Speaker 04:
As far as the mounted on, I just want to bring to your honors attentions a better picture of what I tried showing you earlier.

[00:28:47] Speaker 04:
This is Appendix page 223.

[00:28:48] Speaker 04:
So you can see how this flange area, and it's discolored, it's a gray area, it's interior, it's mounted on the interior.

[00:28:58] Speaker 04:
As far as axial, and this pertains to the hull, hull really has nothing to do with this.

[00:29:04] Speaker 04:
If one looks at page 157 of the appendix, one can see that the pump cap and the container are aligned.

[00:29:14] Speaker 04:
They are along the same axis.

[00:29:16] Speaker 04:
By contrast, if you look at the Clorox device, or if you look at 743 patents at page 61 of the appendix, the pump cap and the container passageway are not in the same axis.

[00:29:37] Speaker 04:
They're aligned to different axes.

[00:29:39] Speaker 04:
They're non-axial.

[00:29:42] Speaker 04:
As far as attorney's fees,

[00:29:47] Speaker 04:
If you'll just permit me, I would just like to read what Judge Kogan said.

[00:29:51] Speaker 04:
This is at appendix page 25.

[00:29:53] Speaker 04:
Although, quote, although I ultimately ruled against AutoCaps, the issue was not, quote, so clear cut that it was unreasonable for AutoCaps to litigate the question until it obtained a ruling on the matter, close quote.

[00:30:16] Speaker 04:
And then similarly, on page 27, Judge Cogan continues, quote, the crux of Clorox's argument is that it prevailed and did so on three grounds.

[00:30:26] Speaker 04:
But that is simply insufficient to support an award of attorney's fees.

[00:30:30] Speaker 04:
An award of attorney's fees is meant to act as a penalty for failure to win a patent infringement suit.

[00:30:36] Speaker 04:
Excuse me, is not meant to act as a penalty.

[00:30:41] Speaker 04:
In this case, they're clearly disputed

[00:30:46] Speaker 04:
of what these terms mean.

[00:30:48] Speaker 04:
That's what gave rise to this case.

[00:30:50] Speaker 04:
Defendant, excuse me, Clorox believes that because they disputed our construction terms and our theory of infringement that we should have agreed to drop the case.

[00:31:00] Speaker 04:
Well that would, if fees were awarded in this case, it would have a chilling effect any time defendants asserted that they didn't infringe and the plaintiff continued and they lost, they'd be on the hook for fees.

[00:31:11] Speaker 04:
I also point out with regard to

[00:31:13] Speaker 04:
These 300-some-odd decisions that my colleague referenced post-Octane that they reviewed, I'm not sure how many of those cases had full-blown mark in proceedings prior to the issuance of any summary judgment ruling.

[00:31:26] Speaker 04:
And that's a really critical thing here.

[00:31:30] Speaker 04:
Finally, as regard to the issue of fees, and my colleague referenced

[00:31:41] Speaker 04:
the dueling experts, how we retained their former employee or former someone who consulted for Clorox.

[00:31:52] Speaker 04:
But if you look at the declarations submitted by Mr. Foster, he makes clear that he did not consult on the SmartTube project.

[00:32:07] Speaker 04:
And as far as attorney's fees, they're the ones who initially

[00:32:11] Speaker 04:
opposed are using him as an expert.

[00:32:16] Speaker 04:
We engaged in all this motion practice.

[00:32:18] Speaker 04:
And then at the end, we had a hearing on April 5, 2016.

[00:32:22] Speaker 04:
And I sent a letter.

[00:32:25] Speaker 04:
It's appendix page 906 that references that.

[00:32:27] Speaker 04:
After the hearing, it was clear the court was going to contemplate allowing auto caps to retain another expert.

[00:32:33] Speaker 04:
And that's when they came in and they said, OK, you can use Mr. Foster's declaration for purposes of deciding the summary judgment.

[00:32:42] Speaker 04:
Your Honors, do you have any additional questions?

[00:32:45] Speaker 00:
Any more questions, Mr. Zimmerman?

[00:32:47] Speaker 00:
Thank you, Your Honors.

[00:32:49] Speaker 00:
Thank you.

[00:32:57] Speaker 00:
Okay, you get the last word on the cross appeal in one minute.

[00:33:02] Speaker 03:
Yes, thank you, Your Honors.

[00:33:06] Speaker 03:
In the obtained decision, the Supreme Court said the award of attorneys fees under section 285 is intended to be a deterrent against the initiation of unnecessary patent litigation.

[00:33:17] Speaker 03:
Exactly a chilling effect.

[00:33:20] Speaker 03:
What the Supreme Court is saying is we want to chill plaintiffs who bring an unmerited patent infringement case on the basis of evidence that's easily available to them

[00:33:36] Speaker 03:
We want those plaintiffs to be deterred from initiating this litigation.

[00:33:44] Speaker 03:
Indeed, Section 285 is supposed to create a chilling effect.

[00:33:49] Speaker 03:
And this is exactly the kind of case that should have been chilled long ago.

[00:33:56] Speaker 03:
With respect to the Foster Declaration, I'd like to point out that Mr. Foster denied consulting on this bottle.

[00:34:06] Speaker 03:
We submitted evidence.

[00:34:08] Speaker 03:
Mr. Foster submitted a declaration.

[00:34:10] Speaker 03:
Judge Kogan weighed that evidence and agreed with the appellee, with the crossbell and the fee motion.

[00:34:18] Speaker 03:
And at this point, that part of his determination is not being challenged.

[00:34:24] Speaker 03:
So I think we can leave that issue aside.

[00:34:28] Speaker 03:
There are no dueling experts.

[00:34:31] Speaker 03:
Appellee did not submit an expert declaration.

[00:34:35] Speaker 03:
declaration of its engineer, Kerry Asselton, who authenticated evidence and explained the design, but offered no expert opinions.

[00:34:49] Speaker 00:
I think we need to wrap it up.

[00:34:51] Speaker 00:
We understand the arguments.

[00:34:55] Speaker 03:
Thank you, Your Honor.

[00:34:56] Speaker 00:
Thank you.

[00:34:57] Speaker 00:
Thank you both.

[00:34:58] Speaker 00:
The case is taken under submission.