[00:00:10] Speaker 01: The next case is SEMTRAC-8 versus SONNATOR technology, scene 17-2510. [00:01:21] Speaker 01: Councilor Kepler, you reserve three minutes for rebuttal time. [00:01:26] Speaker 01: You may proceed. [00:01:27] Speaker 00: Thank you, Your Honor. [00:01:28] Speaker 00: Good morning, Your Honors. [00:01:35] Speaker 00: May it please the court. [00:01:37] Speaker 00: The district court's holding that Centrac must prove that Senator Meggs quote all claimed elements is erroneous and is contrary to cross medical. [00:01:47] Speaker 00: which holds that to prove direct infringement, Centrec only has to prove that Sonata completes the accused-slash-claimed system, even if that completion involves just adding the last element. [00:02:00] Speaker 00: Now, it's very notable that the district court decision below does not discuss or distinguish CrossMedical on its facts or explain anything about why it's not applicable. [00:02:12] Speaker 00: It fails to treat or cite it in any way at all. [00:02:16] Speaker 00: And in fact, the district court decision below on making requiring the all elements to be made is, in substance at least, we would argue, pretty much the same holding that this court subsequently reversed in the lifetime industries case that we cited in our brief. [00:02:34] Speaker 00: Your Honor, there are two claim limitations at issue. [00:02:37] Speaker 00: I won't quote them verbatim, they vary among the claims, but all the claims at issue require, affirmatively, a communication link between the ultrasound transmitters and the source of the TSI. [00:02:49] Speaker 00: And they all require a system, a sort of location code mapping system that be set up so that when the transmitters transmit their location codes, the system can map each one uniquely to a location. [00:03:03] Speaker 00: With regard to that last limitation, [00:03:06] Speaker 00: It's very important to note that if you look at pages 1632 to 1633 of the appendix, you'll see that Sonneter asserted an entire non-infringement argument on the grounds that the data in their system could not do this unique mapping, and therefore they were missing a claim limitation. [00:03:26] Speaker 00: And that was disputed fact about whether they could or couldn't, but no one disputed that that's an affirmative limitation of the claim. [00:03:33] Speaker 00: The last point I'm making is simply this. [00:03:36] Speaker 00: At pages 26 to 31 of our opening brief, we cited a number of documents showing this last claim limitation being added by Sonnitor. [00:03:48] Speaker 00: Sonnitor's brief, as we read it at least, the red brief here, they don't dispute the fact that their personnel add those two limitations. [00:03:57] Speaker 00: And particularly, let's focus just on the last one, the location code mapping. [00:04:01] Speaker 03: They don't dispute the fact that before their personnel do... When you say last, do you mean assembly completing or just the last listed in the various claims? [00:04:13] Speaker 00: I'm sorry. [00:04:13] Speaker 00: I'm not understanding. [00:04:14] Speaker 03: You used the word last limitation. [00:04:16] Speaker 03: I want to know whether that means the last one listed in the claims or the one that once taken completes the assembly. [00:04:25] Speaker 00: It's the latter. [00:04:26] Speaker 00: And I think I would say it this way, Your Honor. [00:04:27] Speaker 00: They don't dispute that. [00:04:29] Speaker 00: Let's assume for a moment they're not responsible for the third-party installers. [00:04:33] Speaker 00: We'd dispute that because they supervise and oversee it, but let's take that as a given for a moment. [00:04:39] Speaker 00: Sonnet is read brief as I read it here. [00:04:42] Speaker 00: They don't dispute, and I think this goes to your question, Judge Toronto. [00:04:47] Speaker 00: They don't dispute that when their personnel step in to do this configuration, there are two of the accused limitations missing, and that after their personnel [00:04:57] Speaker 00: set up the communication link and enter the location code, that those limitations are there. [00:05:02] Speaker 00: As I read the Senator brief, they're arguing that we just have the holding of lifetime industries and cross-medical wrong. [00:05:09] Speaker 00: So it seems to us, the last point I'm making is someone's entitled to summary judgment here, because I'm trying to ask you about this. [00:05:18] Speaker 03: I thought that the district court said that there were several unaddressed alternative theories of non-infringement. [00:05:27] Speaker 00: I don't recall that, Your Honor. [00:05:30] Speaker 00: I'm sorry. [00:05:31] Speaker 00: I don't recall him saying there were unaddressed alternative non-infringement. [00:05:38] Speaker 00: It may be there, and maybe I'm just missing something. [00:05:41] Speaker 00: I thought it maybe was in a footnote. [00:05:45] Speaker 04: Well, he did say in a footnote that you [00:05:50] Speaker 04: forfeited this final assembly theory because you never raised it before. [00:05:56] Speaker 00: I want to very carefully address this procedural history, Your Honor, very carefully. [00:06:01] Speaker 00: It's very critical and very important that the Court fully appreciate what happened procedurally, and thank you for bringing that question up. [00:06:10] Speaker 00: Your Honor, [00:06:12] Speaker 00: In terms of all of these allegations in Senator's brief, that CENTREC is raising new issues on appeal and arguing joint infringements and so forth and so on, first, in summary and most importantly, it didn't happen. [00:06:26] Speaker 00: And that's why when you look at the red brief, if you look at pages, for example, 3, 32, 36, and 37, [00:06:34] Speaker 00: of the red brief, you'll see statements to this effect, like centrals arguing method claims are raising, and they're followed by no citation. [00:06:41] Speaker 04: Okay, so where before your opposition there for the judgment motion did you have the final assembler theory? [00:06:48] Speaker 00: Just point me to it. [00:06:49] Speaker 00: I will point you to it, but I would like to review the history. [00:06:52] Speaker 00: It's at page 128 to 129 of the appendix. [00:06:56] Speaker 00: What happened, Your Honor, is they filed a summary. [00:07:00] Speaker 00: Our position was always cross-medical made. [00:07:02] Speaker 00: Is that your amended complaint? [00:07:03] Speaker 00: No, no, no. [00:07:04] Speaker 00: That's our opposition brief, Your Honor. [00:07:08] Speaker 00: Oh, I meant before your summary judgment brief. [00:07:11] Speaker 00: Well, before the summary judgment brief, what we did is we filed an amended complaint that charged them with direct infringement by install. [00:07:20] Speaker 00: We then served during discovery an expert report. [00:07:23] Speaker 04: Installing what? [00:07:24] Speaker 04: The Sonator Sense real-time location system? [00:07:27] Speaker 00: Yes. [00:07:28] Speaker 00: We then served them with an expert report, and you'll see it's 797 to 98, where the expert actually opined that [00:07:41] Speaker 00: With respect to the issue of direct infringement, Sonniter builds the entire infringing system. [00:07:47] Speaker 00: He went on to say, although the backbone network required by the SonniterSense system may be based on the client's existing network infrastructure, each of the components of the SonniterSense portion of the backbone network is configured by Sonniter. [00:08:01] Speaker 00: In other words, they build it by taking their stuff and configuring it. [00:08:05] Speaker 00: When they filed for summary judgment, Your Honor, this is the critical point. [00:08:10] Speaker 00: They didn't file for summary judgment by saying, you've accused us of installing the sonar descent system. [00:08:15] Speaker 00: There's no evidence we get summary judgment. [00:08:18] Speaker 00: Their summary judgment motion was different. [00:08:20] Speaker 00: It was, and I'll paraphrase, but I think it's a fair reading, was, aha, we may install the sonar descent system, but that system doesn't include the customer's backbone network. [00:08:32] Speaker 04: I don't know if they said the first part. [00:08:33] Speaker 00: I'm paraphrasing it. [00:08:35] Speaker 00: But I think a fair reading, one thing that's clear, they never move for summary judgment on the ground they don't install the Senator sent system. [00:08:43] Speaker 00: Instead, they cited a method claim, BMC payment tech. [00:08:48] Speaker 00: They said no one makes the entire system because the Senator sent system doesn't have the backbone network, so no one makes the entire system. [00:08:56] Speaker 00: There's this sort of split infringement argument and we're off the hook. [00:09:01] Speaker 00: We had no idea at the time they filed that motion that they were disputing our charge that they installed the son of dissent system. [00:09:09] Speaker 00: Why? [00:09:09] Speaker 00: I cled it. [00:09:11] Speaker 00: They didn't challenge it in their motion, so I had no reason to respond any more than I would argue about whether I had standing. [00:09:17] Speaker 00: But their witness had testified that he supervises the Senator team when they're in the field doing an installation. [00:09:23] Speaker 00: And they had very carefully drafted their motion specifically addressing the installing charge to say, we don't install the backbone network. [00:09:31] Speaker 00: So we said, here's all the evidence that you install the rest of it. [00:09:36] Speaker 00: You don't dispute that. [00:09:37] Speaker 00: The parties seem to be agreeing with that. [00:09:40] Speaker 00: The fact that you don't, you use a backbone network from someone else, there is no split infringement BMC payment tech in apparatus claim. [00:09:48] Speaker 00: The relevant case is cross medical. [00:09:50] Speaker 00: We cited that immediately. [00:09:52] Speaker 00: You're the infringer and BMC and method claim case doesn't apply. [00:09:59] Speaker 00: When they came to summary judgment hearing months later, then they said, well, it's not just that we don't install the backbone network. [00:10:06] Speaker 00: We don't even install the Senator since [00:10:09] Speaker 00: And if you look at footnote 11 at page 37, I believe it is in the red brief, they seem to agree that that was a new argument that was raised. [00:10:21] Speaker 00: So what we simply said, Your Honor, is we said, okay, before you were arguing that you put the rest in, but because you don't put the backbone network in, you don't infringe. [00:10:30] Speaker 00: Now you're saying you don't put the backbone and some other stuff. [00:10:34] Speaker 00: We simply said our cross-medical argument is unaffected by that, because whether you start with one thing and put the other nine things in, or whether you start with one thing, a third party puts, say, seven more in, so you have eight, and do the last two, we just have to show that you do the last thing. [00:10:54] Speaker 00: So our cross-medical argument that we've asserted from the beginning is unaffected. [00:10:58] Speaker 00: Here's the most critical point in response to your question earlier, Judge Shah. [00:11:03] Speaker 00: when you say where was it raised earlier, beyond that procedural history that I just described, beyond us saying we meet your summary judgment motion with our opposition, then you change it, so our same argument applies. [00:11:18] Speaker 00: Beyond that, everything else in this entire narrative in their brief about joint infringement theories and method claim arguments and new evidence being raised on appeal [00:11:34] Speaker 00: It's all inaccurate. [00:11:35] Speaker 00: None of it is supported by the record. [00:11:37] Speaker 00: And before I get into what I think should be done with it, I want to just take off a few key points so the Court is not misled by what they're doing with a very simple, straightforward procedural history. [00:11:51] Speaker 00: At page 39 of the red brief, they cite a certain testimony that their witness gave about this integration they do. [00:11:59] Speaker 00: And they tell you that testimony is newly raised by Centrac on appeals. [00:12:04] Speaker 00: It was, quote, never cited in either Centrac's opposition or its supplemental briefs. [00:12:09] Speaker 03: You went through this in the reply, right? [00:12:11] Speaker 00: I went through some of it, but there's one particular additional thing I want to add that I think is not fairly in the reply brief, and that is this, Your Honor. [00:12:20] Speaker 00: Actually, it's just two points. [00:12:22] Speaker 00: One of them may be in the brief, forgive me, but it goes together. [00:12:26] Speaker 00: The two statements they make that are most troubling [00:12:30] Speaker 00: is, late in the case when they claimed this making theory was new, they're telling the Court throughout this case, Centrax infringement theory was based solely on Sonneter's sale of the Sonneter Sense Accused products, as if making was something new, it was always sale. [00:12:47] Speaker 00: You would expect a sentence like that to be followed by a number of sites where we were picturing the sale theory. [00:12:53] Speaker 00: It's blank. [00:12:54] Speaker 00: There's no sites. [00:12:55] Speaker 00: Quite the contrary. [00:12:56] Speaker 00: If you look at 797 to 798 and discover, our experts said, Sonnitor builds the claim system from builds, as in quote, the rest is not, from the stuff it supplies and configuring the backbone network. [00:13:13] Speaker 00: And so and they do this at page 37 of the red brief here. [00:13:18] Speaker 00: In the footnote, what they're telling you [00:13:21] Speaker 03: They agree that they raised a new argument on making that the first time they denied installing the thing as can I ask you was if I remember right and I may not be remembering the red brief makes certain references to contention interrogatories or the kinds of papers that at least under some local rules or some local judges practices [00:13:49] Speaker 03: The plaintiff has to submit to say here is precisely what are what we are contending. [00:13:56] Speaker 03: Was there such a statement that was required to state your make theory but that omitted it. [00:14:05] Speaker 00: No. [00:14:06] Speaker 00: And in fact, Your Honor, I would go further. [00:14:08] Speaker 01: You had to submit infringement contentions, right? [00:14:11] Speaker 00: We did, and there was no issue with infringement contentions. [00:14:15] Speaker 00: There was no motion brought. [00:14:16] Speaker 00: In fact, it was quite the opposite. [00:14:18] Speaker 00: When we responded to their discovery request, as we pointed out in our brief, one of their discovery requests said, a paraphrase, but it was, give us your infringement theory. [00:14:28] Speaker 00: We gave it to them. [00:14:30] Speaker 00: They wrote us a whole bunch of notes about why. [00:14:32] Speaker 03: When you gave it to them, did you say and make [00:14:35] Speaker 00: No, no, what we did was we gave them, like, claim charts. [00:14:39] Speaker 00: They wrote us a deficiency letter on a whole bunch of other responses, but they accepted that. [00:14:44] Speaker 00: And when we served our expert report, we served them and we said, you're building this. [00:14:49] Speaker 00: It was all disclosed. [00:14:52] Speaker 00: And so what happened was the only thing that changed at all was [00:14:57] Speaker 00: When they said in the face of a charge and an expert report, you're installing your system, when they said, aha, but that doesn't include the backbone network, we said cross medical, that doesn't matter. [00:15:09] Speaker 00: When they came to some summary judgment argument and they said, [00:15:12] Speaker 00: It doesn't include the bank loan network and some other stuff. [00:15:16] Speaker 00: We said, that's irrelevant. [00:15:17] Speaker 00: I mean, we dispute that. [00:15:19] Speaker 00: We think the other stuff is yours. [00:15:20] Speaker 00: But we said, as long as you're doing the end. [00:15:22] Speaker 00: But I can't be expected to respond and offer evidence that they're installing the system. [00:15:28] Speaker 00: When I've charged them with that, they haven't disputed that in summary judgment. [00:15:32] Speaker 00: It would be like in a conventional motion, if you have five claim limitations, and I say, give me summary judgment. [00:15:39] Speaker 00: I don't do limitation one. [00:15:40] Speaker 00: It requires aluminum screws. [00:15:42] Speaker 00: I use steel screws. [00:15:44] Speaker 00: I might say, no, here's some evidence you use aluminum screws. [00:15:49] Speaker 00: I might say, no, you have my claim wrong. [00:15:51] Speaker 00: It covers all kinds of screws. [00:15:52] Speaker 00: But I wouldn't argue about why an electric motor in element five of the claim [00:15:58] Speaker 00: is there. [00:15:59] Speaker 00: I wouldn't present any evidence. [00:16:01] Speaker 01: Do you want to save some time for rebuttal? [00:16:05] Speaker 00: I do. [00:16:05] Speaker 00: If I could make one more point on the opening, Your Honor, the only point I want to make is on the invalidity thing, and that is we think the judge just simply mixed up enablement with written description. [00:16:20] Speaker 03: Wouldn't be the first time. [00:16:22] Speaker 00: It wouldn't be. [00:16:26] Speaker 00: Your Honor, I hope the procedural history is clear, and I thank you for your time. [00:16:31] Speaker 00: And I'll save my rebuttal time, please. [00:16:34] Speaker 00: Thank you, Joseph. [00:16:40] Speaker 02: May it please the court. [00:16:42] Speaker 02: As I understand it, Centrac's current infringement theory is that we configure [00:16:52] Speaker 02: the location transmitters, we map the location codes. [00:16:57] Speaker 02: Those are the last two steps in Judge Toronto. [00:17:00] Speaker 02: You asked this, I said, they're the last two steps in time, not in the claim. [00:17:04] Speaker 02: And therefore, we become the final assembler and the maker. [00:17:08] Speaker 02: And I have several points I want to make about that. [00:17:10] Speaker 02: The first one is, this is a brand new argument. [00:17:14] Speaker 02: the configuring location transmitters. [00:17:16] Speaker 03: Help me on that, because I just didn't get it from your brief. [00:17:20] Speaker 03: Their complaint says, basically quotes 271A, right? [00:17:24] Speaker 03: Makes sells you. [00:17:25] Speaker 03: So makes is there. [00:17:27] Speaker 03: At what point were they required to say more than make before they opposed your summary judgment motion where they referred, in fact, to this very theory, [00:17:44] Speaker 03: the cross-medical theory. [00:17:47] Speaker 02: So under the court's scheduling order, they were required to give us their infringement contentions at a date in, I think it was December of 1994. [00:17:57] Speaker 03: And I'm sorry, going to be a pest about this. [00:18:02] Speaker 03: Is there a document like the scheduling order that says, here's what we mean by infringement contention? [00:18:09] Speaker 02: It just says in, yes, it's in the record [00:18:14] Speaker 02: And the scheduling order is at appendix 3823. [00:18:19] Speaker 02: And then we put in infringement contentions also, which are at appendix 1731, 32. [00:18:27] Speaker 02: They gave us infringement contentions, which is the actual infringement contentions they gave us. [00:18:38] Speaker 02: The infringement contentions are at [00:18:41] Speaker 02: They start at A2133. [00:18:43] Speaker 02: They go on for about 50 pages. [00:18:46] Speaker 02: And what they did was... I'm sorry. [00:18:48] Speaker 03: This actually really matters, and I'm going to slow you down. [00:18:50] Speaker 03: So I'm going to look at 3823. [00:18:51] Speaker 03: All right? [00:18:52] Speaker 03: This is the schedule in order, right? [00:19:15] Speaker 03: That's what you cited just before. [00:19:20] Speaker 02: Right. [00:19:20] Speaker 02: It's 38. [00:19:21] Speaker 03: And little ii. [00:19:23] Speaker 03: Is that right? [00:19:25] Speaker 03: Little ii? [00:19:26] Speaker 02: Yes. [00:19:27] Speaker 03: Okay. [00:19:27] Speaker 03: The only thing that requires them to state is the claim elements. [00:19:32] Speaker 03: This does not require them to specify whether it's make, whether it's use, whether it's sell, whether it's offer, whether it's import. [00:19:41] Speaker 03: What else do you have? [00:19:42] Speaker 02: We then sent them an interrogatory, interrogatory number four, asking them for their infringement contentions. [00:19:52] Speaker 02: The answers. [00:19:54] Speaker 03: And so what you asked them for was to do what the scheduling order, little 3823, little II, say, required? [00:20:03] Speaker 02: The interrogatory just asked for the basis for their infringement [00:20:10] Speaker 02: contentions in detail. [00:20:14] Speaker 03: You're trying to find a page for that. [00:20:17] Speaker 02: And we will get you the... 1742 to 1743, or 1731 to 1732 is the interrogatory [00:20:41] Speaker 02: The responses are 1742 to 43. [00:20:48] Speaker 02: And all they did, we went back and we said separately for each asserted claim and each case. [00:20:52] Speaker 03: What are you reading from? [00:20:53] Speaker 02: 1742. [00:20:55] Speaker 03: And that's your document or their document? [00:20:58] Speaker 02: That is Appendix 1742, and that is their interrogatory answer. [00:21:03] Speaker 03: Right. [00:21:03] Speaker 03: Tell me first what the question is that you think they covered this question of [00:21:10] Speaker 03: Is it make? [00:21:11] Speaker 03: Is it use? [00:21:11] Speaker 03: Is it sell? [00:21:12] Speaker 03: Is it offer? [00:21:13] Speaker 03: What? [00:21:13] Speaker 02: Right. [00:21:14] Speaker 02: Separately for each asserted claim and each accused. [00:21:16] Speaker 02: What are you reading from? [00:21:16] Speaker 02: Sorry? [00:21:17] Speaker 02: Each accused product. [00:21:19] Speaker 03: No, no, no. [00:21:19] Speaker 03: You've got to give me a page. [00:21:20] Speaker 03: I need to know what you're looking at. [00:21:21] Speaker 03: What page are we on? [00:21:22] Speaker 02: Oh, I'm sorry, Your Honor. [00:21:25] Speaker 02: 1742. [00:21:25] Speaker 02: Appendix 1742. [00:21:26] Speaker 03: Can we go back to the interrogatory first? [00:21:29] Speaker 02: Right. [00:21:29] Speaker 02: The interrogatory is repeated on 1742. [00:21:30] Speaker 02: It's repeated. [00:21:31] Speaker 02: OK. [00:21:31] Speaker 02: And the answer. [00:21:33] Speaker 03: So now we're on 1741, the top one, interrogatory number one. [00:21:36] Speaker 02: Number two. [00:21:37] Speaker 02: Number two. [00:21:37] Speaker 02: At the bottom. [00:21:48] Speaker 03: Okay, and this is all about products infringing, which doesn't go to what activities with respect to a product infringes. [00:21:56] Speaker 02: Well, it does in the sense that it asks for the theories of infringement after that and the complete factual basis for each and where each limitation of the claims are found in the accused product. [00:22:09] Speaker 02: And it goes on and on. [00:22:11] Speaker 02: And all they referred to was back to the infringement contentions that [00:22:16] Speaker 02: that we had already just cited to you earlier, the pages of charts that just put the products next to the claims. [00:22:28] Speaker 04: But the point of all this, Your Honor... So, I mean, I look at this answer to your interrogatory as essentially objecting to it for various different reasons and then referring you back to the infringement contentions. [00:22:43] Speaker 04: So to what extent did you follow up and say, your answer to my interrogatory number two is deficient. [00:22:52] Speaker 04: You need to do better than this, and I insist that you give us a better answer than this. [00:22:56] Speaker 04: I don't think that we did that, Your Honor, because- You did that with respect to answers for other interrogatories of theirs, but not for interrogatory number two. [00:23:04] Speaker 02: Right, because their answer to interrogatory number two [00:23:07] Speaker 04: First of all, am I right about that? [00:23:10] Speaker 02: Yes, you are. [00:23:11] Speaker 02: Their interrogatory number two incorporated 50 pages of claim charts where they were reading the claims, the asserted claims on our system. [00:23:22] Speaker 02: They never said anything about installation. [00:23:25] Speaker 02: They never said anything about making. [00:23:27] Speaker 02: And I think most importantly, for purposes of this, they never said anything about mapping location codes. [00:23:34] Speaker 02: There was never during the entire case [00:23:37] Speaker 02: of infringement contentions, expert reports. [00:23:41] Speaker 02: There was never any reference to mapping location codes, which seems to be the key now. [00:23:47] Speaker 04: I suppose if the amended complaint says you're making the invention by installing your Sonotor Sense RTLS, that part of the installation of the Sonotor Sense RTLS is, in fact, installing the location codes to configure your devices so that they can communicate with each other. [00:24:08] Speaker 02: amended complaint said by making, using, selling, installing, marketing, etc., etc., etc. [00:24:17] Speaker 02: It never called on installation, but even on installation, we addressed installation in the sense that there are parts like the backbone network, like the computer hardware, and like the Cisco access points that we don't install. [00:24:36] Speaker 02: And we told the [00:24:36] Speaker 04: in our interrogatory answer, they never came back and said... Are you talking about the backbone network and the server hardware? [00:24:43] Speaker 02: The backbone network, the server hardware, and the access points which are provided usually by Cisco, which they say are the RF transmitters. [00:24:54] Speaker 04: That's not part of the Sonotor Sense RTLS. [00:24:57] Speaker 02: It's not. [00:24:58] Speaker 02: It's part of the system that they accused. [00:25:01] Speaker 02: When you look, I think it's page 16 of our brief, [00:25:04] Speaker 02: We have the drawing that they use to show the infringement. [00:25:09] Speaker 02: And some of the components are things we supply, and some of the components are things that we don't supply, that others supply. [00:25:16] Speaker 02: We said very clearly to them, we don't supply the backbone network, the ethernet. [00:25:21] Speaker 02: We don't supply the access points, which you've alleged are the RF transmitters. [00:25:26] Speaker 02: We don't supply those things. [00:25:28] Speaker 02: So we don't supply the whole system. [00:25:30] Speaker 02: We don't install those things either. [00:25:32] Speaker 02: We didn't say we don't install them. [00:25:34] Speaker 03: When you said we said to them, you mean in your summary judgment motion? [00:25:38] Speaker 02: No, we said that in our interrogatory answers over and over. [00:25:41] Speaker 03: And were they required in response to your interrogatory answers to say, we have two points to make. [00:25:51] Speaker 03: One, we actually think you're wrong about some of that. [00:25:54] Speaker 03: But two, it doesn't matter. [00:25:55] Speaker 02: Well, the point is we gave them interrogatories. [00:26:01] Speaker 02: This was at A1187, our interrogatory. [00:26:03] Speaker 03: When were they required before the opposition to summary judgment to say none of this matters? [00:26:09] Speaker 02: They were required to give us their infringement contentions. [00:26:12] Speaker 02: They don't get to stop at the beginning of the case. [00:26:15] Speaker 02: They never supplemented their infringement contentions. [00:26:18] Speaker 02: And if you look at their reply brief, on page 30, they say, and I'm going to quote it, [00:26:24] Speaker 02: It is true that making and installing were not contained in Sentrax infringement contentions or expert report. [00:26:31] Speaker 02: They never put making or installing in their, not only in their contentions, they never put them in their expert report. [00:26:39] Speaker 02: We put in our expert report that our expert was Dr. Heppi, that page 86. [00:26:45] Speaker 04: I thought their contention was supposed to track the requirements of the scheduling order. [00:26:50] Speaker 04: The scheduling order required [00:26:51] Speaker 04: basically a claim chart. [00:26:53] Speaker 04: And so, in fact, that's what they did. [00:26:55] Speaker 04: They itemized all the different components, whether they're from your sonotour sense system or from an existing backbone network that when all put together would meet every single claim limitation. [00:27:08] Speaker 04: And that's all that the scheduling order required. [00:27:10] Speaker 04: It didn't require something more than that. [00:27:13] Speaker 02: And then we sent them an interrogatory, and they didn't [00:27:16] Speaker 02: add anything to that in the interrogatory that we just looked at. [00:27:19] Speaker 04: Right. [00:27:20] Speaker 04: But you didn't follow up asking for clarification. [00:27:23] Speaker 04: What does this mean? [00:27:23] Speaker 02: I don't understand. [00:27:24] Speaker 02: We had no reason to believe that they were doing anything other than what was in their infringement contention. [00:27:29] Speaker 01: Well, the answer to the interrogatory is pretty hedges. [00:27:34] Speaker 01: And it objects on various grounds. [00:27:37] Speaker 01: The discovery hasn't taken place. [00:27:39] Speaker 01: Experts haven't been identified and named. [00:27:42] Speaker 01: And it goes on and says, we can't answer. [00:27:45] Speaker 01: We're not going to answer because these events have not occurred. [00:27:49] Speaker 01: Did you ever follow up after those events occurred? [00:27:53] Speaker 02: Yep. [00:27:53] Speaker 02: We followed up only in the sense, not in the sense of writing them a letter. [00:27:57] Speaker 02: But we put in an expert report from Dr. Heppe. [00:28:01] Speaker 02: And this is at A1642. [00:28:04] Speaker 02: And he said specifically in his expert report that Sonator doesn't make [00:28:11] Speaker 02: or all of the components. [00:28:14] Speaker 02: He said that at 1642. [00:28:15] Speaker 01: So are you saying this interrogatory put you on notice that what you had to do? [00:28:21] Speaker 02: I don't think that there was no interrogatory. [00:28:24] Speaker 02: There was an interrogatory to us asking us, why don't you infringe? [00:28:29] Speaker 02: And we clearly said, because we don't supply all of the components. [00:28:33] Speaker 02: That's at A1187. [00:28:34] Speaker 02: We then came in with an expert report where [00:28:40] Speaker 02: A-1642, our expert said, Sonator doesn't make all of the components. [00:28:48] Speaker 02: He said that clearly. [00:28:49] Speaker 02: Their expert didn't come back and say, well, you install them. [00:28:53] Speaker 02: What their expert came back and said, this is Dr. or Mr. Zakovich at A-798 to 99, he came back and he said, well, if you don't make all the components, then there's induced infringement. [00:29:08] Speaker 02: That's what he said at A798-99. [00:29:10] Speaker 02: Never said the installation is an infringement. [00:29:14] Speaker 02: They said that there's induced infringement. [00:29:17] Speaker 02: When we got the summary judgment, we thought that there was going to be an induced infringement argument based on that. [00:29:23] Speaker 02: And Mr. Kaplan told Judge Andrews that that was not in the case, that their experts shouldn't have put that in. [00:29:32] Speaker 03: Can you address, I think he cited just [00:29:36] Speaker 03: I'm sorry for not following this. [00:29:38] Speaker 03: 798? [00:29:39] Speaker 02: Right, 798 and 799. [00:29:42] Speaker 03: So look at 798. [00:29:43] Speaker 03: That's what, their expert in response to your expert? [00:29:48] Speaker 03: Yes, it is, Your Honor. [00:29:49] Speaker 03: That is their expert. [00:29:50] Speaker 03: And it says, I hope I can, well, this is not confidential. [00:29:58] Speaker 03: Although the backbone network required by the sonator system may be based on a client's existing network infrastructure, [00:30:04] Speaker 03: each of the components of the sonator sense portion of the backbone is configured by sonator. [00:30:17] Speaker 03: And that is in support of direct slash induced infringement. [00:30:22] Speaker 02: Right, and then he goes on in paragraph 100 to talk about [00:30:28] Speaker 02: the direct infringement, I guess it's 99, the induced infringement. [00:30:32] Speaker 03: Right. [00:30:32] Speaker 03: And then he gets back to paragraph 100. [00:30:36] Speaker 03: It's my opinion, based on this understanding, that the sonneter system directly infringes every asserted claim and the alternative induces. [00:30:44] Speaker 03: Why does that page 798 tell you that configuring produces direct infringement? [00:30:52] Speaker 02: We were never told anything about mapping location codes, Your Honor. [00:30:56] Speaker 02: And you will look throughout this record. [00:30:59] Speaker 03: Is that different from configuring? [00:31:00] Speaker 03: I'm sorry? [00:31:01] Speaker 03: Is that different from configuring? [00:31:02] Speaker 02: That is different than configuring. [00:31:04] Speaker 02: Configuring the location transmitters is putting them up where they belong in the system. [00:31:10] Speaker 02: The mapping the location codes is the data entry. [00:31:13] Speaker 02: They never said a word to us about mapping location codes. [00:31:16] Speaker 02: And that's exactly what, in footnote three, Judge Andrews said, this is a brand new theory of infringement after summary judgment briefing. [00:31:26] Speaker 02: We had a summary judgment argument where we argued about whether they had evidence of installation. [00:31:32] Speaker 04: And we went... Your summary judgment brief was really more about the network, the backbone network doesn't belong to you. [00:31:40] Speaker 02: That's what it was about. [00:31:41] Speaker 04: And so that was your theory to try to end this case. [00:31:45] Speaker 02: Right. [00:31:46] Speaker 02: And they came back, we went back and forth about what the evidence was about installation. [00:31:51] Speaker 02: They never came back and said, well, your people are mapping [00:31:55] Speaker 02: the location codes. [00:31:57] Speaker 02: And that's what Judge Andrews said. [00:31:59] Speaker 02: I'm going to give everyone another chance to write me a letter and tell me what that installation evidence is. [00:32:04] Speaker 02: And they wrote back a letter for the first time in this entire case, raising mapping location codes. [00:32:11] Speaker 02: And Judge Andrews said, after we had gone through this over and over, it's untimely and it's unpersuasive. [00:32:18] Speaker 02: I would like to make a point on the merits, because I have a feeling we're just getting tied up in the [00:32:22] Speaker 02: in the procedure of what happened. [00:32:24] Speaker 02: And going down memory lane can be fun, but there is also no... You make a big weight argument, so this is not unimportant. [00:32:34] Speaker 02: I understand that it's not unimportant. [00:32:37] Speaker 02: And it was the judge's ruling that they couldn't raise this. [00:32:41] Speaker 02: And I haven't heard an abusive discretion argument, just heard that they should have been able to raise it. [00:32:46] Speaker 02: But there is also no evidence in the record that [00:32:52] Speaker 02: mapping location codes is the last thing that happens. [00:32:55] Speaker 02: They never took discovery on this. [00:32:58] Speaker 02: And when you look at the evidence they have about this... I thought that's what Mr. Cormier basically said. [00:33:03] Speaker 02: No, he doesn't say it's the last thing that happened. [00:33:05] Speaker 02: He said, our people enter data. [00:33:08] Speaker 02: He never said that was the last thing that happened. [00:33:10] Speaker 04: And there are... They enter the data and they fine-tune it to make sure everything's operational. [00:33:15] Speaker 02: That doesn't mean it's the last thing that happened. [00:33:18] Speaker 02: The gateways have to be installed, the Ethernet [00:33:22] Speaker 02: The network backbone has to be connected to the system. [00:33:25] Speaker 02: The tags, the personal devices, the tags, they have to be activated. [00:33:33] Speaker 02: There is no testimony about the order in which things happen. [00:33:36] Speaker 02: And on that point, we don't know of any. [00:33:39] Speaker 03: Was there some testimony that you can't make sure everything is working unless all the other stuff has been? [00:33:45] Speaker 02: I don't think there is any testimony saying that. [00:33:51] Speaker 02: The other legal side of this, even if we did map the location codes as the last thing, we don't know of any law that says if you go in and you map the location codes and someone else has put in other parts of the system, that that makes you the infringer of the whole system. [00:34:12] Speaker 02: I mean, he talked about CrossMedical. [00:34:14] Speaker 02: CrossMedical was a very different case where Medtronic gave [00:34:18] Speaker 02: a device with three of the four claim elements. [00:34:21] Speaker 03: Right, the surgeon did the one with the attachment part. [00:34:23] Speaker 02: To the surgeon. [00:34:23] Speaker 02: And he added the fourth in there. [00:34:24] Speaker 03: And then we have centillion. [00:34:29] Speaker 02: But centillion, I think they're consistent. [00:34:32] Speaker 02: Centillion says, when you combine all of the elements, you can be a direct infringer. [00:34:39] Speaker 02: That's different from saying, if you install, if you put the data in and that's the last thing that happens, [00:34:48] Speaker 02: everything that happened before becomes yours. [00:34:51] Speaker 02: That doesn't make you the person who combined all the elements. [00:34:54] Speaker 02: That makes you the person who took that step. [00:34:57] Speaker 01: But that's, for example, if... Counselor, you're out of time, but I'm going to let you conclude, okay? [00:35:04] Speaker 01: Thank you, Your Honor. [00:35:08] Speaker 02: On the legal point, it's like saying that if a third party software company was hired to [00:35:17] Speaker 02: input the location codes, that that makes them responsible for the whole system. [00:35:22] Speaker 02: And that's not anything that's supported by any law. [00:35:26] Speaker 02: It's very different to say Centillion, which is what we relied on, if Centillion requires combining all of the claim limitations and saying, well, you did the last thing, and therefore you're responsible for everything that happened before that. [00:35:43] Speaker 02: We don't know of any case that supports that. [00:35:45] Speaker 02: Cross doesn't. [00:35:45] Speaker 02: Lifetime doesn't. [00:35:46] Speaker 02: Centillion doesn't. [00:35:48] Speaker 02: I would have liked to talk a little bit about written description, but I see that I'm 19 minutes into my 15 minutes. [00:35:57] Speaker 01: Thank you. [00:35:57] Speaker 01: I've been very generous to everybody today, and I'm beginning to regret it. [00:36:04] Speaker 01: I'm going to put you back to three minutes, and let's see if you don't use it all up, OK? [00:36:07] Speaker 00: OK, thank you. [00:36:08] Speaker 00: Just a few points first. [00:36:10] Speaker 00: He pointed you to this inducement thing at 798. [00:36:13] Speaker 00: It was an extraneous thing the experts... Talk about mapping location code. [00:36:17] Speaker 00: I will. [00:36:17] Speaker 00: But at 797, the expert actually said that they build the infringing, they build the entire infringing system, and then he went on to explain this. [00:36:27] Speaker 00: The location codes, Your Honor, all of... Remember, their original motion was we don't supply the backbone network. [00:36:35] Speaker 00: We then put in all the installation stuff that they do do and said the backbone network [00:36:41] Speaker 00: being supplied by the customer doesn't matter. [00:36:44] Speaker 00: I'm sure the council made a mistake, but the location code testimony was in that original opposition as part of the original opposition brief we filed. [00:36:54] Speaker 00: I think it's at 128 or 129. [00:36:56] Speaker 00: You'll see the same testimony cited. [00:36:59] Speaker 00: It's just the only difference between our opposition and the supplemental stuff is simply that the supplemental stuff is a subset [00:37:10] Speaker 00: Because when we filed the opposition, we had no notice from their opening brief that they were disputing they'd do the rest beyond the backbone network. [00:37:19] Speaker 00: So we basically said, okay, you don't do the backbone. [00:37:22] Speaker 00: We've charged you with the rest. [00:37:23] Speaker 00: Your witness has admitted that he supervises the Senator support team when they're, quote, in the field doing an installation. [00:37:30] Speaker 00: We all agree you do the installation. [00:37:32] Speaker 00: The failure to provide the backbone network is no defense. [00:37:36] Speaker 00: When they said, we're disputing that we do some of that installation, three months later at summary judgment, we said, OK, we won't fight you on that, even though we disagree. [00:37:45] Speaker 00: We'll take this last part of the installation, because that's sufficient for us to win. [00:37:51] Speaker 00: And that you don't dispute even now. [00:37:53] Speaker 00: So the location code was in there. [00:37:55] Speaker 00: I believe, Your Honor, I can't say this for certainty, but I am 90% sure that the location code is somewhere in the expert charts or report. [00:38:04] Speaker 00: I can't locate it right now. [00:38:06] Speaker 00: but it doesn't matter it was our opposition you know our expert told them that it was making it issue and and and they knew their summary judgment motions said i think seven or eight or nine times we don't make we don't make and the final point i want to make on this procedure thing your honor is that [00:38:25] Speaker 00: There's a whole story here about how we didn't disclose making. [00:38:29] Speaker 00: But what did they think we were pursuing? [00:38:32] Speaker 00: We didn't disclose selling or offer for sale, and they filed a summary judgment motion, and he showed you nothing to support his statement that he's made to the Court, that the case was always based on the sale. [00:38:46] Speaker 00: And in fact, there's another blank place where there should be a citation. [00:38:50] Speaker 00: If you look at footnote 11 of your brief, [00:38:53] Speaker 00: They say, well, we didn't move for summary judgment on this making theory. [00:38:56] Speaker 00: They sort of agree. [00:38:58] Speaker 00: And they say, but we couldn't have been expected to move on something that Centrac never asserted, as if they were only moving on what we did assert. [00:39:05] Speaker 00: But they don't tell you what else they think that was, because there's nothing inconsistent. [00:39:09] Speaker 00: For the time of the expert report, we were telling them it's making, and that's why their summary judgment [00:39:16] Speaker 00: I think it's like seven or eight times, says, we don't make the system because we don't supply the backbone network. [00:39:22] Speaker 00: So I admit that. [00:39:23] Speaker 00: One final, final point, and I promise to keep quiet. [00:39:26] Speaker 00: I've watched you guys have a long day. [00:39:28] Speaker 00: The only other point I want to make is this whole procedural history. [00:39:34] Speaker 00: I mean, I've been up for probably 10 cases at this court. [00:39:36] Speaker 00: I've never seen something like this. [00:39:38] Speaker 00: This entire procedural history, if they had any point or any merit to it, [00:39:44] Speaker 00: He could very easily prove that by pointing you to a pleading or a brief or something Centrax submitted where it said, we're only proceeding on selling or it's not making or it's a joint infringement. [00:39:56] Speaker 00: I've searched the appendix. [00:39:58] Speaker 00: There's no allegation of that. [00:40:00] Speaker 00: And all these representations about their asserting joint infringement, their raising new theories, they say Centrac couldn't have been correcting our reliance, Sonnater's reliance on method claim theories, because Sonnater never relied on method claim, but Debrief clearly cites BMC and argues split infringement. [00:40:19] Speaker 00: This entire overtone [00:40:21] Speaker 00: of everything's been raised late and it's an effort to avoid the merits of the cross-medical case.