[00:00:00] Speaker 04: is 17-25-71, Doxy versus piriform. [00:00:59] Speaker 04: Good morning, Your Honors. [00:01:07] Speaker 00: May it please the Court. [00:01:07] Speaker 00: I'm Kevin Malek. [00:01:08] Speaker 00: I'm here on behalf of Appellant Daniel Doxie. [00:01:12] Speaker 00: And I wanted to start off with the infringement issue. [00:01:14] Speaker 00: Okay, I apologize. [00:01:16] Speaker 00: I should have thought of this a moment ago. [00:01:17] Speaker 04: I have a preliminary question, and both of you are free to chime in on this. [00:01:22] Speaker 04: This used to happen with some frequency, and it rarely happens here. [00:01:27] Speaker 04: But the record that we have, at least, suggests that there may not be a final judgment in this case to the extent if there were counterclaims of validity that were never adjudicated, and there's no 54B here, and there's no dismissal without prejudice, which we normally see with respect to the counterclaims. [00:01:51] Speaker 04: So there's still some counterclaims hanging out there based on what we can see of this record. [00:01:57] Speaker 04: One, have you thought about that? [00:01:59] Speaker 04: Are we right? [00:02:01] Speaker 04: And if we're right, then isn't it correct that there's no final judgment? [00:02:05] Speaker 04: And you can hear the case, whatever, but you need to go back to the district court and get her to do some paperwork on it to sort of clean that up. [00:02:15] Speaker 04: So do either of you have a comment? [00:02:16] Speaker 00: I would agree that the court's summary final judgment did not address the question [00:02:24] Speaker 00: defendant or appellee's counterclaims? [00:02:27] Speaker 04: And there are pending, there were pending counterclaims. [00:02:31] Speaker 00: Correct. [00:02:32] Speaker 04: So do you agree that that's a bit of a problem here in terms of finality and you go back to the district court to get some sort of sign off on that? [00:02:43] Speaker 00: I would expect, Your Honor, that would be the proper procedural process here. [00:02:47] Speaker 00: I wouldn't expect that there would be anything more than asking the court to enter a final... [00:02:55] Speaker 00: Or perhaps defendant or appellee could withdraw those claims because they're somewhat moot at this point until this court renders a decision on what was decided. [00:03:05] Speaker 04: Or to have them dismissed without prejudice. [00:03:08] Speaker 04: Correct. [00:03:09] Speaker 04: Any comments, sir? [00:03:10] Speaker 01: You are correct. [00:03:11] Speaker 01: Looking at the final judgment, there is nothing in the final judgment that addresses the outstanding counterclaims. [00:03:20] Speaker 01: However, we can dismiss them without prejudice. [00:03:24] Speaker 02: You just have to have the district court judge enter an order to that event. [00:03:29] Speaker 04: So we will, with the consent of the panel, we'll proceed to hear this case today, just because we don't want to cost everybody more time and money. [00:03:39] Speaker 04: But we will hold it with the expectation that forthwith, like within 10 days or whatever, in the absence of the district court not being available, that he will try to get something to us from the district court. [00:03:54] Speaker 04: OK. [00:03:59] Speaker 04: Thank you. [00:03:59] Speaker 04: So let's proceed on the merits. [00:04:02] Speaker 00: I was not expecting that, but I appreciate it. [00:04:05] Speaker 00: I just wanted to start off with the infringement question and then talk about claim construction. [00:04:10] Speaker 00: If there's time, we can move into the issue about reconsideration, although I'm not so sure that that's even necessary to achieve the result that the appellant's looking for. [00:04:19] Speaker 00: So on the infringement question, well, [00:04:23] Speaker 00: Give us a quick background. [00:04:25] Speaker 00: The patented invention relates to a peripheral device that can couple with a [00:04:33] Speaker 04: I think we understand that. [00:04:35] Speaker 04: Let me ask you to be clear. [00:04:36] Speaker 04: I don't know which of the plain terms you are going to lead with. [00:04:41] Speaker 04: It would be my preference to do the interchangeably mounted sensor. [00:04:46] Speaker 04: And let me just clarify up front. [00:04:49] Speaker 04: You have to prevail on both of these. [00:04:52] Speaker 04: Your argument with regard to both of these terms has to prevail. [00:04:56] Speaker 00: In order to overturn the decision of non-infringed summary judgment, it's our position, as it's been briefed, that we do not need to modify the claim constructions and that we prevent. [00:05:10] Speaker 04: No, I understand that. [00:05:11] Speaker 04: But both claim terms appear in all the claims. [00:05:15] Speaker 04: Correct. [00:05:15] Speaker 04: So you have to prevail on the merits, either on claim construction [00:05:19] Speaker 04: or infringement with respect to both of those terms. [00:05:24] Speaker 00: We would seek reversal on both of those claim terms and you're right they do [00:05:30] Speaker 00: They are limitations in every single claim in the patent. [00:05:34] Speaker 00: But just to be clear, even under the district court's construction, we do submit that there is still an infringement. [00:05:45] Speaker 00: If there are other questions. [00:05:46] Speaker 00: So just to go back to infringement, and I'm going to skip over the part about what the invention is. [00:05:51] Speaker 00: It looks like the court is fully briefed on that. [00:05:54] Speaker 00: In any event, the district court failed to give inferences, all favorable inferences, to the patentee here. [00:06:04] Speaker 00: And as we submitted in blue 29 to 37 and gray 7 to 11, there is no dispute on the replaceable cradle connector limitation. [00:06:17] Speaker 00: There's no dispute that the accused products have a cradle connector. [00:06:21] Speaker 00: So it really gets down to the point about the replaceable. [00:06:24] Speaker 00: limitation and whether or not these accused devices have cradle connectors that are replaceable. [00:06:32] Speaker 00: Now, for appellant's position, and we fully briefed this to the district court in various briefs, and we showed photographic evidence of a replacement exercise where [00:06:47] Speaker 00: I did it personally. [00:06:48] Speaker 00: We had an expert that did it. [00:06:50] Speaker 00: The inventor did it. [00:06:52] Speaker 00: Many people did it. [00:06:53] Speaker 00: It's a very routine exercise with an off-the-shelf screwdriver to replace the cradle connector. [00:07:02] Speaker 00: We showed photographic evidence. [00:07:04] Speaker 00: It's in our brief. [00:07:05] Speaker 00: blue 32 showing the cradle connector and at blue 33 to 34 going through that replacement exercise and through the simple exercise of unscrewing the cradle connector one can remove it and Put it back and that's the whole point about having screws in there in the first place now Appellee Verifone contends that it's built-in [00:07:34] Speaker 00: But as we've shown, it is in fact not built in. [00:07:37] Speaker 00: So where did the district court err on this? [00:07:40] Speaker 00: The evidence that Verifone submitted to the district court came in the form of a declaration from a Verifone employee who just concluded, citing wholesale to 30 or 40 pages of the record, that the cradle connector was built in and not replaceable. [00:08:01] Speaker 00: But that, we submit. [00:08:03] Speaker 00: is insufficient to overcome what we showed, first of all, to be actual replacement. [00:08:10] Speaker 00: And secondly, insufficient to meet Verifone's burden in showing non-infringement here. [00:08:21] Speaker 00: Similarly on the sensor unit interchangeably mounted limitation, there is no dispute that the accused products have a sensor unit. [00:08:32] Speaker 00: And so the question again, similar to the replaceable cradle connector limitation, is is that sensor unit interchangeable? [00:08:41] Speaker 00: And [00:08:42] Speaker 00: Again, we submitted to the district court in various briefs. [00:08:46] Speaker 00: They're all in the record pre-judgment photographic evidence of an interchange exercise where if one were to open the device, it can be interchanged with another sensor. [00:08:59] Speaker 00: It can be swapped out. [00:09:00] Speaker 00: It can be exchanged. [00:09:02] Speaker 00: And where did the district court [00:09:10] Speaker 00: find evidence that it was not interchangeable. [00:09:14] Speaker 00: Well, again, Verifone and the court solely relied on a declaration of an employee of Verifone, Mr. Gerald Hamrock, who made a conclusory statement that the sensor, just like the cradle connector, was built in, and to use the word they used, integrated. [00:09:35] Speaker 00: But as we showed in our briefs, that was not the case. [00:09:39] Speaker 00: And it could actually be exchanged and swapped out readily. [00:09:48] Speaker 00: And just to refresh the court, we summarized Verifone's evidence succinctly in Gray 11 through 15. [00:10:00] Speaker 00: I'd like to move on to the claim. [00:10:02] Speaker 03: What about the waiver argument? [00:10:03] Speaker 03: on this infringement argument. [00:10:05] Speaker 03: How do you respond to that? [00:10:07] Speaker 00: What's the waiver argument, Judge? [00:10:09] Speaker 03: That you didn't make that particular argument below. [00:10:12] Speaker 00: We made all those arguments below, and I cited to the records there. [00:10:18] Speaker 00: I'm not sure which argument you're referring to specifically, but I can run through them quickly. [00:10:24] Speaker 00: our replaceable cradle connector argument. [00:10:26] Speaker 03: Not the replaceable cradle connector, but on the sensor. [00:10:30] Speaker 03: And whether it's replaceable by a user or could it be removed or replaced by another sensor by a user. [00:10:38] Speaker 00: Yes, so the arguments that we made on the sensor unit being interchangeable were made below on July. [00:10:47] Speaker 03: What about under the claim construction adopted by the court? [00:10:51] Speaker 00: So the district court, our infringement position was briefed as part of our response to summary judgment and the Markman briefing. [00:11:02] Speaker 00: I'm actually glad that you asked that. [00:11:04] Speaker 00: Let me give you a sense of the procedural history here. [00:11:07] Speaker 00: But there was a fully. [00:11:11] Speaker 00: The motion for summary judgment was brought by Verifone within 30 to 45 days of the initial discovery order. [00:11:19] Speaker 00: So almost a year before discovery was to close. [00:11:23] Speaker 00: And it was fully briefed. [00:11:25] Speaker 00: And then the court had a hearing after that and then invited Markman briefing and claim construction briefing and clarified some questions for the parties. [00:11:35] Speaker 00: And so there was subsequent briefing [00:11:37] Speaker 00: And in each of those briefs, we submitted further evidence of infringement to the court and responded. [00:11:45] Speaker 03: Did you submit evidence or argument on whether there was infringement under your adversary's claim destruction, you know, even though it occurred maybe later after you had submitted your initial briefs? [00:11:58] Speaker 00: Correct. [00:11:59] Speaker 00: Yes, we did. [00:12:00] Speaker 00: And that was done as early as July 22, 2017, on the censor unit being interchangeable question. [00:12:10] Speaker 00: And you can find that at the appendix at 923 to 24. [00:12:14] Speaker 00: So that was well before the court's decision. [00:12:17] Speaker 00: So 923 to 1024? [00:12:18] Speaker 00: Sorry, appendix 923 to 924. [00:12:20] Speaker 02: What it says at 923 to 924, and I'll read it. [00:12:24] Speaker 02: This is a direct quote. [00:12:25] Speaker 02: is that the sensors in the accused products meet both Verifone's and Mr. Dosey's proposed claim constructions, assuming one eliminates the additional words that Verifone has added to the claims, namely, with another sensor by a user. [00:12:44] Speaker 02: So how was the district court supposed to understand that even if it were to adopt the very portion of the construction [00:12:55] Speaker 02: that you cite here, you're nonetheless arguing there is still infringement under that construction. [00:13:01] Speaker 02: Because you say it infringes under both if, assuming one eliminates this portion of the construction. [00:13:08] Speaker 02: District court didn't eliminate that portion of the construction. [00:13:11] Speaker 02: So this is the waiver argument. [00:13:13] Speaker 02: The waiver argument is it appears that this is the only place where you introduced these photos [00:13:21] Speaker 02: which are in your responsive claim construction brief. [00:13:23] Speaker 02: And it doesn't seem like you introduced these photos and argued that they met or established a question of fact on infringement under Verifone's construction, which the district court did then adopt. [00:13:38] Speaker 00: That's correct for that part, Your Honor. [00:13:41] Speaker 00: But there are other portions of our briefing to the district court in which we contend that even if the court were to adopt [00:13:50] Speaker 00: Verifone's construction that there's still going to be infringement. [00:13:53] Speaker 02: Yes, but all those other parts at 382, 386, 1027, and 1028, and to be clear, these are your opposition to summary judgment and your opening claim construction brief. [00:14:03] Speaker 02: There, you never introduced any of the photos or pointed to any of that interchangeability. [00:14:09] Speaker 02: Instead, your argument in all of those locations was it infringes even under Verifone's construction because the barcode scanner [00:14:18] Speaker 02: Basically, this is available for purchase with or without the barcode scanner. [00:14:21] Speaker 02: And that's a different argument. [00:14:22] Speaker 02: That's not the same argument as, look here, we can do this, a user can do it. [00:14:27] Speaker 02: So you made one argument with regard to infringement in all those other places. [00:14:31] Speaker 02: And the only time you made the argument you're making now, unless I'm mistaken, please show me where other than on 923 and 924 it's made. [00:14:39] Speaker 00: So let me explain the sequence first, and then I can get to your question. [00:14:44] Speaker 00: Verifone raised that issue about non-infringement in their reply brief on summary judgment. [00:14:51] Speaker 00: And so we were left dealing with it at the hearing that the district court had and then in our subsequent markup briefing. [00:14:59] Speaker 00: But to get to your question about where we also argue that there's going to be infringement, regardless of whether that claim limitation is added [00:15:12] Speaker 00: or whether or not the claim limitation includes with another sensor by a user. [00:15:19] Speaker 00: Your Honor, I would submit that I'm having a hard time finding it right now, Your Honor. [00:15:27] Speaker 02: Do you remember which of the documents it was in? [00:15:31] Speaker 00: I believe it was in our reply brief on claim construction, Your Honor. [00:15:41] Speaker 02: I think that's the one at 923 and 924, right? [00:15:44] Speaker 02: That's your responsive claim construction brief. [00:16:02] Speaker 00: That's the responsive brief. [00:16:34] Speaker 02: You want to move on to any of your other arguments or maybe try and talk about this during rebuttal or something when you have a chance to look for it? [00:16:41] Speaker 00: Sounds right, Your Honor. [00:16:42] Speaker 00: Let me get to the claim construction points. [00:16:45] Speaker 00: Just very briefly, because we've already seeded your town. [00:16:48] Speaker 00: So on the sensor unit interchangeably mounted point, that limitation itself does not require that it be done by a user. [00:17:01] Speaker 00: or that it be exchanged with another sensor. [00:17:06] Speaker 04: Leave the user thing out. [00:17:08] Speaker 04: That's not dispositive with respect to infringement rights. [00:17:14] Speaker 00: It also doesn't require that it be exchanged with another sensor. [00:17:17] Speaker 00: It's a characteristic of the sensor, that it be able to be interchanged, to be able to be swapped and exchanged. [00:17:26] Speaker 00: Similarly, on the replaceable cradle connector limitation, the district court erred in its construction of that limitation by introducing the word port, requiring that it be a port connector. [00:17:37] Speaker 00: The word port appears nowhere in the patent. [00:17:40] Speaker 00: And then separately, the district court also erred in requiring that data be transmitted to and from that cradle connector. [00:17:50] Speaker 00: Again, there's no support for that in the record as has been briefed. [00:17:59] Speaker 01: May I please the court? [00:18:02] Speaker 01: I will start with addressing the court's finding of non-infringement with respect to the interchangeably mounted sensor. [00:18:11] Speaker 01: And actually, I'll speak more generally to the court's finding of non-infringement under its constructions. [00:18:22] Speaker 01: Doxy did not argue or present any evidence of infringement under the court's constructions prior to its motion for reconsideration. [00:18:33] Speaker 01: Throughout the summary judgment briefing, the claim construction briefing, he reiterated that merely removability of these two features, the cradle connector and the interchangeably mounted sensor, was enough to find infringement. [00:18:49] Speaker 01: It wasn't until the motion for reconsideration that he submitted an expert declaration relying on the very same evidence that he could remove these features from the accused devices that he argued, well, that still infringes under the court's claim construction. [00:19:03] Speaker 01: But that was mere conclusory argument made after the court reached its decision on summary judgment. [00:19:11] Speaker 01: Now, with respect to the specific evidence that he presented on infringement, [00:19:19] Speaker 01: with respect to the interchangeably mounted sensor, as the district court properly construed that as a sensor that can be removed and replaced with another sensor. [00:19:32] Speaker 01: That's the relevant portion of the construction. [00:19:34] Speaker 01: And what Mr. Doxey presented, as the court has already looked at, at appendix 923, 924, this is all he presented, was images [00:19:46] Speaker 01: in his briefing, not supported by a declaration, of one of the accused devices showing that he could take apart the device and physically tear out the barcode sensor. [00:20:01] Speaker 03: Are you pointing to appendix page 923? [00:20:04] Speaker 01: Yes. [00:20:04] Speaker 03: Did I say that? [00:20:06] Speaker 01: Yeah. [00:20:06] Speaker 01: Appendix 923. [00:20:08] Speaker 01: Exactly. [00:20:10] Speaker 01: Basically, he was able to dismantle the device. [00:20:13] Speaker 01: And he says, this shows that the barcode sensor is interchangeably mounted. [00:20:18] Speaker 01: This is in no way evidence that the barcode sensor could be removed and replaced with another sensor. [00:20:26] Speaker 01: It just frankly doesn't create an issue of fact. [00:20:29] Speaker 01: And that's why the district court granted summary judgment. [00:20:32] Speaker 01: The district court didn't just say there is no genuine issue. [00:20:36] Speaker 01: of fact here is that there is no issue of fact. [00:20:39] Speaker 01: There is not a dispute here. [00:20:40] Speaker 01: And actually, if you look at the statement of undisputed facts submitted with the summary judgment motion and Doxy's counterstatement there too, you'll see there was no dispute of fact. [00:20:55] Speaker 01: At appendix 152, that's Verifone's assertion of undisputed facts where [00:21:05] Speaker 01: Verifone first said that the accused sensors cannot be removed by the user and swapped out for another sensor. [00:21:12] Speaker 01: Now, under 56E and the Florida local rules, the non-movement in this context needs to present counterstatement of facts. [00:21:24] Speaker 01: Otherwise, the facts are deemed admitted. [00:21:27] Speaker 01: And this is what Doxie said in his counterstatement of facts with respect to that assertion. [00:21:32] Speaker 01: And that's at appendix 514. [00:21:35] Speaker 01: He said, the evidence demonstrates that the sensor in the Verifone products can definitely be removed or added as necessary. [00:21:43] Speaker 01: So he's basically saying he can remove it and therefore there's infringement. [00:21:48] Speaker 01: There is no dispute that they cannot be removed and replaced. [00:21:52] Speaker 01: They just can't be swapped out. [00:21:53] Speaker 01: That is fundamentally the issue here. [00:21:56] Speaker 01: I mean, there is a meaningful distinction between the patent and the accused products. [00:22:02] Speaker 01: is true with respect to the cradle connector. [00:22:06] Speaker 01: Again, the only evidence related to the replaceability of the cradle connector, which the court construed the replaceability aspect of the cradle connector as something that can be exchanged or swapped out. [00:22:22] Speaker 01: And the only evidence is if you look at appendix 888 and 889. [00:22:30] Speaker 01: Again, this is in claim construction briefing. [00:22:32] Speaker 01: And again, these are images within the briefing not supported by a declaration. [00:22:36] Speaker 01: I mean, it's not even really evidence. [00:22:38] Speaker 01: It's just argument. [00:22:40] Speaker 01: We again have Mr. Doxy taking apart one of the accused devices and physically removing the cradle connector with a screwdriver. [00:22:53] Speaker 01: That's removability. [00:22:54] Speaker 01: That's not replaceability. [00:22:56] Speaker 01: That's not evidence showing that the connector can be exchanged and swapped out. [00:23:02] Speaker 01: So again, the district court properly concluded there's not a dispute of fact here and granted summary judgment of non-infringement on two independent grounds, both supported by the record. [00:23:15] Speaker 01: And there's no basis to overturn that. [00:23:19] Speaker 01: Now, I'll move on to claim construction. [00:23:20] Speaker 01: I'll do this quickly. [00:23:26] Speaker 01: I know the court knows what the patent is about. [00:23:28] Speaker 01: case that covers or is used in connection with communication devices. [00:23:33] Speaker 01: And a critical novel element of this case is that it expands the functionality of the device that it covers. [00:23:39] Speaker 01: And it does this by having modular components. [00:23:44] Speaker 01: The two claimed modular components that we've already talked about are the interchangeably mounted sensor and the replaceable cradle connector. [00:23:53] Speaker 01: And with respect to the sensor, the notion was [00:23:57] Speaker 01: Look, the users in the field, they want a different sensing functionality, so they have a variety of different sensors that they can choose from to put onto the device and use. [00:24:08] Speaker 01: You might want a barcode sensor, you might want a fingerprint kind of sensor. [00:24:13] Speaker 01: And that's what the device was about. [00:24:18] Speaker 04: Where did the district court come up with by a user? [00:24:24] Speaker 04: I don't see why it would have to be done by the user. [00:24:27] Speaker 04: That doesn't affect infringement. [00:24:30] Speaker 01: Yeah, that doesn't affect infringement, so I don't think we necessarily need to get to that. [00:24:34] Speaker 01: But I will address the issue, because I [00:24:37] Speaker 01: I included it myself. [00:24:38] Speaker 01: The point is, we don't need it. [00:24:40] Speaker 01: We don't need it. [00:24:40] Speaker 04: I mean, it doesn't matter whether we agree or disagree with that phrase being claimed. [00:24:44] Speaker 01: We don't need it, except the reason that it's in there is that if anyone can be the person who removes and replaces a sensor, you could argue that the manufacturer could do it or that the designer could do it in the process of building. [00:25:01] Speaker 01: And therefore, there could be a hypothetical argument that [00:25:07] Speaker 01: You know, any device made up of components has interchangeably mounted components. [00:25:12] Speaker 01: That's why we included the bike by the user, just to circumvent confusion on that issue. [00:25:18] Speaker 01: Because the patent is clear that the notion is you have this peripheral device, and there are many modular components that you can choose from depending on need. [00:25:31] Speaker 01: And so the court's claim construction of interchangeably mounted sensor is supported by the record [00:25:36] Speaker 01: By contrast, Mr. Doxy's proposed construction, again, he pushed for a sensor that is capable of being removed or added or exchanged. [00:25:45] Speaker 01: So he's arguing that interchangeably mounted means mere removability. [00:25:50] Speaker 01: That just isn't supported by anything. [00:25:52] Speaker 01: He doesn't cite to anything in the intrinsic record. [00:25:55] Speaker 01: Instead, he relies on [00:25:57] Speaker 01: Inventor testimony as to his subjective intent as to the meaning of the term which is not proper He also relied on his own testimony as to commercial alleged commercial embodiments again not probative to claim construction, so there's no support for [00:26:17] Speaker 01: Mr. Doxy's construction there is support for Fairfax proposed construction and the court's adoption of that construction was absolutely proper. [00:26:26] Speaker 01: The same is true for the replaceable cradle connector but I do want to address that all the issues raised by Mr. Doxy here on appeal with respect to the construction of the [00:26:39] Speaker 01: replaceable cradle connector. [00:26:41] Speaker 01: He says it shouldn't include the word port, and there shouldn't be the inclusion of language that the port or connector is something through which data is transmitted to and from the cradle. [00:26:52] Speaker 01: None of that matters for infringement. [00:26:54] Speaker 01: The district court actually found that the accused products had a connector, which was a port, through which data was transmitted to and from a cradle. [00:27:04] Speaker 01: Non-infringement was based on replaceability. [00:27:07] Speaker 01: which the court construed as exchanged or swapped out. [00:27:11] Speaker 01: And frankly, if you look at Mr. Doxey's proposed construction, he seems to agree in his proposed construction that replaceability means that something needs to be substituted with something else. [00:27:26] Speaker 01: I mean, that's what he says in his construction. [00:27:29] Speaker 01: So his complaints about the inclusion of the word port [00:27:34] Speaker 01: and the inclusion of the language regarding data being transmitted to and from a cradle, they're irrelevant and don't bear on the ultimate issue of infringement. [00:27:46] Speaker 01: Lastly, with respect to the district court's exclusion of the expert declaration submitted with the motion for reconsideration, again, [00:28:00] Speaker 01: The district court did not abuse its discretion in doing that. [00:28:04] Speaker 01: And I can talk about that in a minute. [00:28:05] Speaker 01: But even if that were to come in, even if that declaration were to come in, it wouldn't change the underlying finding of non-infringement. [00:28:14] Speaker 01: That declaration submitted on the motion for reconsideration merely parrots the exact same facts that were asserted in the claim construction briefing. [00:28:24] Speaker 01: In fact, it uses the exact same images that were in the claim construction briefing, showing that the cradle connector could be pried out of the device and showing that the sensors could be pried out of the device. [00:28:39] Speaker 01: The only new fact, if you even want to call it a fact, in that new declaration was the assertion that that [00:28:50] Speaker 01: evidence somehow supported a finding of infringement under the Court's construction, which is hard for me to understand. [00:28:57] Speaker 01: I think that's all I've got. [00:29:08] Speaker 00: Your Honor, just real briefly, I just want to get to the question about where we address this issue about infringement under the district court's construction. [00:29:17] Speaker 00: And it dawned on me after I sat down for a second, that when we briefed the infringement issue, it was pre the court's request for briefing on Markman. [00:29:32] Speaker 00: And in our Markman briefs, we argued infringement under our construction. [00:29:36] Speaker 00: As soon as the court decided its construction, within a couple of weeks, we submitted additional evidence. [00:29:46] Speaker 03: That's the request for reconsideration that the district court said was not timely provided. [00:29:53] Speaker 02: Correct. [00:29:54] Speaker 03: Were you aware, though, of Verifone's claim construction at the time that you submitted your claim construction briefs with infringement arguments based on your own claim construction, right? [00:30:04] Speaker 03: you were aware of the construction the district court ultimately adopted. [00:30:08] Speaker 00: We were aware of Verifont's construction as soon as their Markman briefs were served on us, that is correct. [00:30:18] Speaker 00: I just wanted to explain why it wasn't fully, well, why it wasn't explored or briefed in our briefing and that was because we only addressed it after the court decided what the claims meant and [00:30:34] Speaker 00: The district court felt that it was too late. [00:30:37] Speaker 00: We obviously submit in our briefs that it was submitted in a couple of weeks. [00:30:42] Speaker 00: And it was very early on in the case. [00:30:46] Speaker 00: This was a year before a fact discovery was intended to close. [00:30:52] Speaker 00: you know, we believe that the district court abuses discretion and not at least affording us the latitude to get that evidence before the court at such an early time in the case. [00:31:05] Speaker 00: I'll rest there unless you have other questions.