[00:00:12] Speaker 04:
The next argued case is number 17, 2301, Carousel Investments LP against Novatel Wireless, Incorporated.

[00:00:33] Speaker 04:
Mr. Harkins.

[00:00:37] Speaker 02:
May it please the Court, Robert Harkins, for Carousel Investments.

[00:00:41] Speaker 02:
Carousell is a family-owned business, and Charles and Vera Gerovich, the owners of that company, are here with me today.

[00:00:48] Speaker 02:
Their father, who is now deceased, is the named inventor on all four patents.

[00:00:53] Speaker 05:
This is a very unusual case because... Are any of these patents still live?

[00:01:01] Speaker 02:
They may be live, but if they are, they're nearing the end of their life expectancy.

[00:01:07] Speaker 02:
They're right at the end at this point.

[00:01:11] Speaker 02:
The thing that makes this case unusual is that the accused products, which are called MiFi devices, are actually a preferred embodiment in the patent.

[00:01:21] Speaker 02:
And so the only way you can find non-infringement and uphold non-infringement is to read out that preferred embodiment.

[00:01:30] Speaker 02:
The patents say that an embodiment is to put a moving base station in, quote, an automotive vehicle traveling on the roadway.

[00:01:41] Speaker 02:
And that's at appendix 193, column 4, lines 8 to 9.

[00:01:46] Speaker 02:
The claims are all consistent with that embodiment.

[00:01:49] Speaker 02:
There's never been any factual dispute in this case at any point.

[00:01:53] Speaker 02:
And it's admitted thoroughly throughout the opposition brief in this case that MiFi devices are put in cars, traveling on the roadway, in traffic.

[00:02:04] Speaker 02:
They have to work in traffic.

[00:02:05] Speaker 02:
They're tested for all conditions of traffic, from 0 miles per hour up to 80 miles per hour.

[00:02:11] Speaker 02:
They were tested in 10 metropolitan areas, thousands and thousands of miles.

[00:02:16] Speaker 02:
Nevertheless, there was a judgment of non-infringement.

[00:02:19] Speaker 02:
And that judgment was based on elements that were added.

[00:02:22] Speaker 02:
You will not find them in any claim asserted in this case.

[00:02:27] Speaker 02:
Even worse, the basis for this judgment was something that the district court entered really for the first time after the trial was over.

[00:02:34] Speaker 02:
And it was a version of the claim construction that was never provided and contradicts the patent, and it was provided for the first time in the denial of the J-Mall.

[00:02:45] Speaker 02:
That reconstruction said that the claims in this case had to have more than did be put in a car on a roadway to travel at the speed of traffic.

[00:02:56] Speaker 05:
Well, claim construction is not before us, is it?

[00:02:59] Speaker 05:
I'm sorry?

[00:03:00] Speaker 05:
claim construction is not before us.

[00:03:03] Speaker 05:
It was waived.

[00:03:05] Speaker 05:
It wasn't dealt with.

[00:03:06] Speaker 05:
There's no Rule 50 motion.

[00:03:09] Speaker 02:
Yes.

[00:03:09] Speaker 02:
So, Your Honor, two things.

[00:03:12] Speaker 02:
One is the claim construction that we're talking about is before us.

[00:03:17] Speaker 02:
First, it was, and the Rule 50 motion is really a separate item because if there was injustice done in this case or there was an error in claim construction that was

[00:03:28] Speaker 02:
done to justify the jury verdict in this case.

[00:03:32] Speaker 02:
There are two bases.

[00:03:33] Speaker 02:
It either can result in a new trial under Rule 59 or 60, and it's still a claim construction issue.

[00:03:39] Speaker 02:
Or under the Ninth Circuit authority, there is, and it is true, a 50A motion was not made on this ground at the close of evidence.

[00:03:48] Speaker 02:
But the Ninth Circuit authority that we have cited indicates that there is an exception in the event that there is a missing 50A motion

[00:03:56] Speaker 02:
that the Ninth Circuit holds, and this is the United States v.

[00:03:59] Speaker 02:
33.5 Acres case and the EEOC v. GoDaddy case, also the Padgett case that we cited, that in that event, a 50B motion is still valid, still appropriate, but you have to use a different standard.

[00:04:13] Speaker 02:
The exception standard is that you have to show plain error and manifest injustice.

[00:04:18] Speaker 02:
basically that there's no evidence that could, instead of substantial evidence, you really have to show there was nothing that the jury could have relied upon to reach its verdict.

[00:04:27] Speaker 02:
So even since this is a claim construction issue and it's about an added element that was, that has nothing to do with the claims in this case, it's still appropriate because if we're right about the claim construction issue and there was no evidence in the trial of the appropriate claim construction,

[00:04:43] Speaker 02:
then we are still entitled to a 50-D JMAH in our favor of infringement.

[00:04:49] Speaker 02:
So what happened here is that the court had twofold indicated that first it added a requirement based on subject matter disclaimer.

[00:05:00] Speaker 03:
And that subject matter disclaimer... I'd like to return to Judge Lurie's point, which is didn't you waive the ability to object to the claim construction?

[00:05:11] Speaker 02:
There's two items regarding that claim construction.

[00:05:13] Speaker 02:
The first is, in the first instance, did we waive the ability to object to the subject matter disclaimer finding that added the phrase, that's not in any of the claims, that the accused device must travel with traffic at a rate of speed that is comparable to the speed of the traffic.

[00:05:30] Speaker 02:
That's not in any of the claims.

[00:05:32] Speaker 02:
The judge held that that was added.

[00:05:34] Speaker 02:
And in fact, there was no waiver of that point.

[00:05:38] Speaker 02:
What happened in that case was the plaintiff had said,

[00:05:41] Speaker 02:
that that was just an embodiment and not actually a subject matter disclaimer.

[00:05:49] Speaker 02:
And the court, in its finding on that point, oral argument, there was no further argument.

[00:05:55] Speaker 02:
It was just submitted on the tentative.

[00:05:57] Speaker 02:
Then, in the final, after that point.

[00:06:00] Speaker 03:
When you say there's no further argument, did he give you a chance to have further argument on that point?

[00:06:06] Speaker 02:
Right.

[00:06:07] Speaker 02:
At the oral argument, we could have further argued the tentative.

[00:06:09] Speaker 02:
And instead, the position was we just submitted on the tentative, which is, in California practice, is just saying we submit.

[00:06:16] Speaker 02:
We don't have anything else to say about this.

[00:06:17] Speaker 02:
We just submit on the brief.

[00:06:18] Speaker 03:
So the court says, I'm tentatively giving you my ruling on constructions.

[00:06:22] Speaker 03:
And you all say, we accept that.

[00:06:24] Speaker 03:
We'll accept.

[00:06:25] Speaker 03:
We'll submit on the tentative.

[00:06:26] Speaker 02:
There was no, okay, so there is a difference.

[00:06:29] Speaker 02:
There was no statement that we accept the court's ruling.

[00:06:31] Speaker 02:
We just said we submit on the tenet.

[00:06:33] Speaker 03:
Your Honor, for plaintiff, we'll go ahead and submit on the tenet.

[00:06:36] Speaker 02:
Correct.

[00:06:37] Speaker 03:
And the court said, all right.

[00:06:38] Speaker 03:
Then he turned to your opposing counsel, and your opposing counsel said, actually, Your Honor, I have a problem with one of your terms, and then went through the next several pages of the hearing transcript and argued the claim construction point with the judge.

[00:06:53] Speaker 03:
But you all remained silent.

[00:06:54] Speaker 03:
So the judge was clearly giving you

[00:06:56] Speaker 03:
an opportunity at that moment to raise any disputes you had with his tentative construction.

[00:07:01] Speaker 03:
The other side availed themselves of that opportunity.

[00:07:04] Speaker 03:
But you all remained silent and told him, no, we'll submit on the tentative.

[00:07:09] Speaker 02:
The position at that time was that we had no further argument to make that we were just submitting on the tentative.

[00:07:15] Speaker 02:
That's correct.

[00:07:16] Speaker 02:
What happened after that is that the court did, I would just say contextually, when you look at what happened, the court did not believe that we said we agreed with the court's ruling.

[00:07:26] Speaker 02:
Because after that oral argument, the court issued its final claim construction order.

[00:07:30] Speaker 02:
And at Appendix 15, the court says the court rejects plaintiff's contention that this portion of the specification is merely describing a preferred embodiment.

[00:07:40] Speaker 02:
That is, the court didn't say,

[00:07:42] Speaker 02:
Well, based on what you said at oral argument, the plaintiff agrees with the tentative.

[00:07:46] Speaker 02:
The court actually ruled substantively that it disagreed with the position that we had staked out in the case.

[00:07:52] Speaker 02:
We said in our papers, this is just an embodiment.

[00:07:55] Speaker 02:
It's not subject matter disclaimer.

[00:07:57] Speaker 02:
The court said, do you have anything to say about this?

[00:08:00] Speaker 02:
We said we submit on the tentative, which we've cited in California practice as a neutral statement.

[00:08:04] Speaker 02:
We're just not going to say any more on that point.

[00:08:07] Speaker 02:
And then the court actually ruled on the point, saying it disagreed with our position.

[00:08:10] Speaker 02:
And it supplied the claim construction over our objection.

[00:08:15] Speaker 02:
And it's in footnote five at appendix 15 where it's doing that.

[00:08:19] Speaker 02:
So once you have, and the law that we've cited in our reply brief of Yamada versus Noble BioCare, 825 F3rd, 536 at 543, says when a party takes a position and the district court rules on it, there's no waiver.

[00:08:36] Speaker 02:
So we got a substantive ruling that rejected our position in our briefing.

[00:08:40] Speaker 02:
So we don't think there was a waiver.

[00:08:42] Speaker 02:
But that's just the first part, because even if you take, even if you agreed with that subject matter disclaimer, and we believed it was incorrect because there are other settings that don't limit us to that, that still doesn't, we still would have won the trial if that, if what had happened was that that phrase was interpreted to just mean what it said, that the device was designed to move with traffic at a rate of speed that is comparable to the traffic.

[00:09:10] Speaker 02:
That was proved at trial.

[00:09:11] Speaker 02:
There was no conflicting evidence.

[00:09:13] Speaker 02:
It's cited all over the place in the brief that that actually happened.

[00:09:16] Speaker 04:
You did have evidence as to what was meant by moving with the traffic.

[00:09:24] Speaker 04:
You're saying that there was something improper?

[00:09:26] Speaker 02:
Correct.

[00:09:27] Speaker 02:
What we're saying is that what happened is that in the summary judgment proceedings, the defendants moved for summary judgment saying, well, your product doesn't do anything more than just you put it in the car.

[00:09:40] Speaker 02:
And it does work.

[00:09:41] Speaker 02:
It works.

[00:09:42] Speaker 02:
That's all that MiFis do.

[00:09:43] Speaker 02:
It's exactly the intermediary device of the patent.

[00:09:46] Speaker 02:
It takes these signals from the base station, and it is the thing that transmit those signals to the individual mobile units and back.

[00:09:54] Speaker 02:
That's what the patent claims are about, and that's exactly what a Mi... That's all a MiFi does.

[00:09:59] Speaker 02:
And we said, if you put that in a car, of course the car moves in traffic at the rate of speed of the traffic.

[00:10:04] Speaker 02:
And they said, no, it has to do more, like track it or something like that.

[00:10:08] Speaker 02:
In ruling, in opposing that motion, in rejecting that summary judgment motion, the district court correctly held that if you were going to use that phrase, it did not require more than putting it in a car.

[00:10:22] Speaker 02:
And I want to direct your attention to Appendix 396.

[00:10:25] Speaker 02:
This is the, there's one page in the appendix I'd like Your Honors to look at for this appeal.

[00:10:29] Speaker 02:
That's the one.

[00:10:31] Speaker 02:
In that order on summary judgment, the district court said,

[00:10:36] Speaker 02:
that merely showing that the accused products were designed to operate while traveling in a moving car is insufficient to satisfy the adapted to, configured to claim limitation.

[00:10:48] Speaker 02:
But plaintiff correctly notes that the specification of the 904 patent expressly describes an embodiment of the invention where the moving base station is moved by an automotive vehicle traveling on a roadway.

[00:11:02] Speaker 02:
Then the district court at 396 cites the Federal Circuit authorities saying, as a claim construction matter, it would be inappropriate to require more than putting it in a car on the roadway, because that would read out a preferred embodiment.

[00:11:15] Speaker 02:
That was a claim construction position that the court ruled in the plaintiff's favor.

[00:11:20] Speaker 02:
Then at trial, when the evidence was all said and done, there was no evidence that contradicted that.

[00:11:26] Speaker 02:
It all agreed, and it's in the defendant's brief.

[00:11:29] Speaker 02:
that, in fact, MIFIs are in cars, in traffic, they move with traffic.

[00:11:34] Speaker 02:
What happened after that was, in the J-Mall, the district court changed its construction for the first time.

[00:11:40] Speaker 02:
We had never heard this before and said, no, now I'm going to find that maybe that more is required, that actually you have to know how fast things are going.

[00:11:50] Speaker 02:
You have to have a knowledge of speed.

[00:11:52] Speaker 02:
That is exactly what reads out the embodiment, because the embodiments in the patent, there are two embodiments in the patent.

[00:11:59] Speaker 02:
One says, you put this in a car, the car's going to move with traffic automatically.

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

[00:12:05] Speaker 02:
That's the MiFi embodiment.

[00:12:07] Speaker 02:
A second embodiment is if you put it on a train going along the side of the road, you set that train at 60 miles an hour.

[00:12:13] Speaker 02:
You have no idea how fast traffic is moving, but the patent says that's good enough because that will naturally capture enough traffic that's going to be moving at highway speeds without knowing how fast anything is moving.

[00:12:26] Speaker 02:
So the only way to get this knowledge of speed

[00:12:28] Speaker 02:
that you have to track traffic or know how fast traffic is going or know how fast the MiFi is going reads out at least two embodiments.

[00:12:36] Speaker 02:
It cannot be a correct result.

[00:12:37] Speaker 02:
And the district court recognized that before the trial.

[00:12:40] Speaker 02:
But then when that was the only evidence left after the trial, the district court changed its claim construction erroneously.

[00:12:47] Speaker 02:
And we asked for a reversal on that.

[00:12:49] Speaker 02:
Given the correct claim construction, the evidence only is uniform that we proved infringement.

[00:12:55] Speaker 02:
And so we asked for a JMAW of infringement.

[00:12:58] Speaker 02:
I'll reserve the balance of my time.

[00:13:00] Speaker 04:
Thank you.

[00:13:04] Speaker 01:
Good morning, Your Honor.

[00:13:07] Speaker 01:
What CARESO is asking for is an extraordinary remedy today.

[00:13:10] Speaker 01:
They're asking you to reverse a jury finding of infringement.

[00:13:15] Speaker 01:
What they're arguing based on the reversal is that it's because the district court got the claim construction wrong.

[00:13:21] Speaker 03:
They're not just asking us to reverse the jury finding of infringement.

[00:13:24] Speaker 03:
They're also asking us to reverse two district court findings of waiver

[00:13:28] Speaker 03:
which I think precede even getting to the jury finding.

[00:13:32] Speaker 03:
So we have to find the district court was wrong on waiver on claim construction when they expressly found they waived this argument by not offering anything on a tentative.

[00:13:40] Speaker 03:
We have to also find, I think, if I'm not mistaken, that the district court was wrong in finding they waived the 50B motion because they had not run a 50A motion.

[00:13:47] Speaker 03:
And then if we decide the district court wrongly decided both issues of waiver, then we get to the merits and unravel the jury finding.

[00:13:54] Speaker 01:
Correct.

[00:13:55] Speaker 01:
Is that right?

[00:13:55] Speaker 01:
That is exactly correct.

[00:13:56] Speaker 01:
And the waiver argument is not

[00:13:58] Speaker 01:
as simple as they presented, as if there was a claim construction hearing, and here we are today.

[00:14:03] Speaker 01:
That's not what happened.

[00:14:05] Speaker 01:
The court listened to the claim construction, received claim construction briefs, and provided a tentative two days before, giving everyone plenty of opportunity to be prepared for the claim construction.

[00:14:15] Speaker 01:
And then after it heard oral argument from both sides, it provided a final, which was the same as the tentative.

[00:14:21] Speaker 01:
But that's not where it ended.

[00:14:22] Speaker 01:
There's seven more months of trial.

[00:14:24] Speaker 01:
And over the course of the six, seven months, there was a motion for non-infringement based that we filed as the defendants.

[00:14:31] Speaker 01:
And at that point, this issue became crystal clear.

[00:14:35] Speaker 01:
We knew what the court's claim construction was.

[00:14:37] Speaker 01:
They knew what evidence we were going to present.

[00:14:39] Speaker 01:
We were going to present that these devices are just like your cell phone.

[00:14:42] Speaker 01:
They're tested to move in different varying speeds.

[00:14:44] Speaker 01:
But they don't move at a rate of speed comparable to the speed of traffic, which is essential to what the invention's about.

[00:14:50] Speaker 01:
Because the invention is not about mobile Wi-Fi devices like your cell phone.

[00:14:53] Speaker 01:
It's about mobile base stations that move in traffic at a rate of speed of traffic to reduce handoffs.

[00:14:59] Speaker 01:
So when you... Are these, I'm just curious, are these standalone devices?

[00:15:03] Speaker 01:
Your Honor, I wish I brought one.

[00:15:04] Speaker 03:
Or is it like, I have a minivan and the minivan actually has a Wi-Fi hotspot.

[00:15:09] Speaker 03:
Is that what you're talking about?

[00:15:10] Speaker 01:
That's exactly what we're talking about.

[00:15:11] Speaker 01:
And your cell phone.

[00:15:12] Speaker 01:
So your cell phone, you can use your cell phone as a hotspot for your iPad to your iPhone.

[00:15:16] Speaker 01:
You can use the new cars that actually come with these Wi-Fi installed devices, or you can buy a dedicated one

[00:15:22] Speaker 01:
which is what was basically $60, $50.

[00:15:25] Speaker 01:
And then the advantage of that is your phone is available for use while you still use this device.

[00:15:30] Speaker 01:
And frankly, these devices are meant for using conference rooms.

[00:15:33] Speaker 03:
So the standalone one, it also wouldn't drain your phone's battery the same way if other people were using your hotspot.

[00:15:38] Speaker 01:
Correct.

[00:15:38] Speaker 01:
So it's a little more secure, a little cheaper, and it's separate.

[00:15:42] Speaker 01:
And you use those devices as a hotspot.

[00:15:44] Speaker 01:
They're not mobile base stations that move in traffic at a rate of speed comparable to the speed of traffic to help facilitate multiple

[00:15:52] Speaker 01:
phones using those as base stations.

[00:15:54] Speaker 01:
And so what I want to do is return to what happened, which is at the motion to summary judgment, it was absolutely clear what the claim construction was and what evidence we were going to present and what they were going to present.

[00:16:05] Speaker 01:
And what they argued to the court was, this is an issue of fact that should go to the jury.

[00:16:10] Speaker 01:
And their voices was they argued that.

[00:16:11] Speaker 01:
That this is an issue of fact.

[00:16:12] Speaker 01:
This is not an issue of claim construction.

[00:16:13] Speaker 01:
This is not an issue of law.

[00:16:15] Speaker 01:
It's an issue of fact.

[00:16:16] Speaker 01:
They also filed a motion in Limini where they said defendants should not be able to present evidence contrary to the proposed construction.

[00:16:23] Speaker 01:
And the district court said to them, I hear your motion.

[00:16:26] Speaker 01:
If you have any complaint about any evidence that is entered that is contrary to the claim construction, please object contemporaneously in court.

[00:16:35] Speaker 01:
So they asked for an issue of fact and they got a specific instruction from the district court saying please object if you have any problems.

[00:16:42] Speaker 01:
Did they object to my evidence in opening argument?

[00:16:45] Speaker 01:
Did they object to my technical expert testifying that these devices don't move at a rate of speed comparable to speed of traffic?

[00:16:51] Speaker 01:
Did they object to my closing argument?

[00:16:53] Speaker 01:
Did they object after the close of evidence with the rule 50A motion?

[00:16:57] Speaker 01:
Not a single objection was ever heard because they believed they were going to persuade the jury that simply moving in traffic like your cell phones was really the same as mobile base stations that move in traffic at a rate of speed comparable to the speed of traffic for the purpose of reducing handoffs.

[00:17:14] Speaker 01:
jury made a conclusion.

[00:17:15] Speaker 01:
They heard the evidence for five days.

[00:17:17] Speaker 01:
They went back and they deliberated and they said, no infringement.

[00:17:22] Speaker 01:
And now what they're asking this court to do is turn into a matter of law that they themselves argued was a matter of fact.

[00:17:30] Speaker 01:
And that is an extraordinary remedy.

[00:17:32] Speaker 01:
So as this court correctly notes, first you have to find that the district court abused in discretion in finding a waiver.

[00:17:38] Speaker 01:
And if you get past that, you have to find

[00:17:41] Speaker 01:
that there is an ex-waver under Rule 50B is insufficient because there is manifest injustice, even though the district court has said in its order in Jamal that there was substantial evidence to support the verdict.

[00:17:55] Speaker 01:
And then finally, you get to the merits.

[00:17:57] Speaker 01:
And again, I submit on the briefing that if you read even the merits, what they're characterizing is the preferred embodiment as just putting a MiFi device, Wi-Fi hotspot, and driving it down the street.

[00:18:09] Speaker 01:
is what the preferred embodiment was.

[00:18:11] Speaker 01:
That was not the preferred embodiment.

[00:18:12] Speaker 01:
The preferred embodiment was a carousel of tracked train stations that carry these basically mobile-based stations that you see that are fixed and carrying them around a circular track around the freeway at a rate of speed comparable to the speed of traffic.

[00:18:26] Speaker 01:
And what the patent says, well, instead of using train tracks as a conveying device, you could use a car.

[00:18:32] Speaker 01:
That has nothing to do with mobile Wi-Fi hotspots.

[00:18:36] Speaker 01:
Your Honor, if you have any questions beyond the briefing, I'm happy to answer them.

[00:18:40] Speaker 01:
But actually, that's all I have to say today.

[00:18:43] Speaker 04:
We'll see.

[00:18:46] Speaker 04:
Any questions?

[00:18:47] Speaker 04:
Any questions?

[00:18:47] Speaker 04:
OK.

[00:18:47] Speaker 04:
Thank you.

[00:18:49] Speaker 04:
Mr. Harkins.

[00:18:52] Speaker 02:
Thank you, Your Honors.

[00:18:54] Speaker 02:
Well, I think you can see some of what happened in front of the jury when Mr. Thakur just got up again and said that the preferred embodiment is not a device.

[00:19:02] Speaker 02:
That is a mobile device.

[00:19:04] Speaker 02:
that serves to send signals between a base station and mobile units, but is instead a train station circular device that has to go around and around a track, which is one embodiment that was claimed in patents that are not in this case.

[00:19:19] Speaker 02:
And attempting to limit the claims in this case to a train that goes around in circles when, in fact, there is another embodiment in the patent that is claimed to put the device on a car is exactly why the jury got misled

[00:19:33] Speaker 02:
into finding something that was incorrect, and the problem was it was based on an incorrect claim construction that said you had to do more than put it in a car.

[00:19:43] Speaker 02:
On Appendix 396, the district court recognized saying you have to do more than put this device in a car would read out a preferred embodiment and would be a claim construction error.

[00:19:54] Speaker 02:
The district court said that before trial.

[00:19:57] Speaker 02:
But when trial was over, in order to justify the jury result, there was no other way to justify it, the district court changed that construction for the first time and said, now, I say, it does require more than simply putting it in a car.

[00:20:11] Speaker 02:
You have to know how fast things are moving.

[00:20:14] Speaker 02:
But that's exactly what the district court had previously recognized would read out the preferred embodiment.

[00:20:19] Speaker 02:
The evidence that was submitted at trial, I mean, Mr. Thakur is right that this was all laid out before the trial.

[00:20:27] Speaker 02:
that we said, yes, of course, these MiFi devices don't know speed.

[00:20:31] Speaker 02:
And if that's true, grant the summary judgment.

[00:20:34] Speaker 02:
Because we don't have that evidence, but we definitely have evidence that these are put in cars and tested in all traffic conditions to work with traffic the way that it's said, that you have the base station, it submits the signals as a hot spot.

[00:20:47] Speaker 02:
That's what the embodiment was.

[00:20:49] Speaker 02:
The court held that we were correct before the trial, but when there was no supporting evidence after the trial, it changed that construction.

[00:20:55] Speaker 02:
That's inappropriate.

[00:20:57] Speaker 02:
We had no opportunity to challenge that construction until the first time it ever came out, which was after the trial.

[00:21:03] Speaker 02:
So when we talk about the claim construction that there was a discussion was their waiver.

[00:21:07] Speaker 02:
One thing that you have to understand is that was just whether or not we had to move with traffic at all.

[00:21:13] Speaker 02:
That moving with traffic was put in during the claim construction order.

[00:21:17] Speaker 02:
Even if you grant that that was, let's say you grant that that was waived.

[00:21:20] Speaker 02:
We don't think it was, but if you do, we met that requirement.

[00:21:23] Speaker 02:
We showed that this was put in traffic.

[00:21:25] Speaker 02:
using the same embodiment from the patent at all speeds of traffic.

[00:21:29] Speaker 02:
It works in traffic.

[00:21:30] Speaker 02:
Only after the trial did we get this new claim construction about knowledge of speed, which is a wrong claim construction.

[00:21:36] Speaker 02:
And as the district court itself noted, reads out the preferred embodiment.

[00:21:41] Speaker 02:
Now, in his closing, Mr. Thakur noted at appendix 1642, I'm not going to say we don't infringe their patents.

[00:21:49] Speaker 02:
He told the jury that.

[00:21:50] Speaker 02:
And if you apply the correct claim construction in this case, I think that's a correct statement.

[00:21:54] Speaker 02:
We would agree with it.

[00:21:55] Speaker 02:
because they do infringe the patents, and there's no evidence to the contrary.

[00:21:58] Speaker 02:
Thank you.

[00:22:00] Speaker 04:
Thank you.

[00:22:00] Speaker 04:
Thank you both.

[00:22:02] Speaker 04:
The case is taken under submission.

[00:22:04] Speaker 04:
You don't have a cross appeal.

[00:22:06] Speaker 04:
I see you.

[00:22:07] Speaker 00:
I was just going to simply say, Your Honor, that statement is taken out of context, but I will submit on the papers.

[00:22:12] Speaker 04:
I think we've heard the argument.

[00:22:14] Speaker 04:
Thank you.

[00:22:15] Speaker 04:
The case is taken under submission.

[00:22:18] Speaker 05:
All rise.