[00:00:00] Speaker 03:
versus all of them.

[00:00:29] Speaker 00:
Good morning, Your Honors, and may it please the Court, Richard Ranney on behalf of Alston Grid.

[00:00:34] Speaker 00:
We've challenged a number of rulings below.

[00:00:36] Speaker 00:
I'd like to begin with the issue of infringement.

[00:00:39] Speaker 00:
Alston does not infringe the matter of law for two reasons.

[00:00:43] Speaker 00:
First, the accused system does not meet the comparison limitation

[00:00:47] Speaker 00:
And second, the accused software does not meet the adding and deselecting from the existing subset limitation.

[00:00:52] Speaker 03:
Is your comparison argument mainly that Dr. Brown admitted that there is no comparison made of the measured voltage and the target voltage band?

[00:01:00] Speaker 03:
And absent that, there's no other evidence of literal infringement, and this is not a DOE case?

[00:01:04] Speaker 00:
That is 100% correct, Your Honor.

[00:01:05] Speaker 00:
Total failure of proof in this case.

[00:01:08] Speaker 00:
And in fact, I would argue, Your Honor, that the issue here really is

[00:01:12] Speaker 00:
an effort to try and sort of compare apples and oranges, and this applies both to the comparing limitation as well as to the selecting and deselecting limitations.

[00:01:19] Speaker 00:
We have a model-based system.

[00:01:21] Speaker 00:
It's undisputed that system generates an energy delivery parameter based on calculated voltages.

[00:01:27] Speaker 00:
That's how it works.

[00:01:27] Speaker 00:
That's how it has to work.

[00:01:28] Speaker 00:
That's undisputed.

[00:01:29] Speaker 00:
It's admitted.

[00:01:30] Speaker 00:
They have a constant monitoring system which needs a panel of meters sending voltages and constantly detecting whether those voltages are within or without the

[00:01:41] Speaker 00:
target voltage range in order to know whether they can issue an energy delivery parameter.

[00:01:45] Speaker 00:
We don't have a subset to which we add or deselect anything from.

[00:01:49] Speaker 00:
That's not how our software works.

[00:01:51] Speaker 00:
That's undisputed.

[00:01:52] Speaker 00:
They need to add and deselect from their panel in order for their system to function.

[00:02:00] Speaker 03:
But Dr. Brown explained that sometimes the meters

[00:02:03] Speaker 03:
in the Bellwether subset remain the same?

[00:02:06] Speaker 03:
He explained when a meter reports voltage violation that was added to the subset and one is deselected.

[00:02:13] Speaker 03:
Why isn't that substantial evidence?

[00:02:15] Speaker 03:
Just like you seem like you're on strong footing on the comparison limitation, you seem like you're on weak footing here because Dr. Brown didn't contradict himself here.

[00:02:22] Speaker 00:
Actually, I think you need to look a little bit behind what Dr. Brown said here and look at how our system operates, which again is undisputed.

[00:02:30] Speaker 03:
He's pointing to a two-minute... You want me to look beyond what the witness who is deemed an expert and gave testimony to the jury on a substantial evidence standard review and you didn't object to either his methodology or his credentials, you want me to disregard his testimony in the entirety and look behind it?

[00:02:45] Speaker 00:
No, I'm not asking you to do that at all.

[00:02:47] Speaker 00:
This court's made clear, however, a conclusory expert testimony is not the kind of substantial evidence that the court will use to sustain a verdict, one.

[00:02:54] Speaker 00:
What he's talking about is adding something that is not the claimed subset.

[00:02:58] Speaker 00:
That's the key point I wanted to make here.

[00:03:01] Speaker 00:
If you look at how this claim functions, it's pretty clear.

[00:03:06] Speaker 00:
You receive measurement data, that's the voltage information from the meters, from each sensor of a subset.

[00:03:15] Speaker 00:
It's at the receipt of the voltage information from meters that you first have a claimed subset.

[00:03:22] Speaker 00:
Second, you have to generate an energy delivery parameter based on measurement data received from the subset.

[00:03:29] Speaker 00:
So what we're talking about is the subset of meters.

[00:03:32] Speaker 00:
If you're going to look at our system and say that's a subset, there's a subset there.

[00:03:35] Speaker 00:
The only time there is ever a group of meters that reports voltage data, and it doesn't report it into the objective function where we calculate the energy delivery parameter, it reports it into the adjustment algorithm.

[00:03:49] Speaker 00:
But if you look at that and want to call that a subset,

[00:03:51] Speaker 00:
The only time that happens ever in our software, and this is undisputed, is at the end of the two-minute wait period.

[00:03:58] Speaker 03:
Now, if I agree with you on the comparison limitation, I don't have to reach this, right?

[00:04:01] Speaker 00:
No.

[00:04:02] Speaker 03:
So why don't we talk about the only thing that's causing me pause on the comparison limitation, which is the heuristic mode or model, whatever you call it.

[00:04:08] Speaker 03:
In a footnote in your opening brief, you say, oh, and don't pay any attention to that heuristic thing to the extent that they bring it up later because they waived it in closing argument.

[00:04:17] Speaker 03:
I don't really know what to make of that, because there are certain pages, and the testimony, and the exhibits.

[00:04:23] Speaker 03:
If I read that manual right, it says expressly there's a comparison going on, the exact comparison at issue in that heuristic mode.

[00:04:31] Speaker 03:
And you want me to disregard that as couldn't be the substantial evidence the jury made its decision on because they gave it up, the argument in the closing?

[00:04:40] Speaker 00:
That's correct.

[00:04:40] Speaker 03:
Our position is they waive it.

[00:04:41] Speaker 04:
Were there other limitations, because I understand that they were relying on the two different modes, the heuristic mode being one of them.

[00:04:49] Speaker 04:
Were there other limitations in the claim that you argued that the heuristic mode didn't satisfy?

[00:04:55] Speaker 00:
Well, adding and deselecting as well.

[00:04:58] Speaker 00:
But yes, I mean, I think, first of all, the operation of the system is undisputed under any of the modes.

[00:05:05] Speaker 00:
And it doesn't meet the comparison or the adding and deselecting limitation.

[00:05:08] Speaker 04:
Why doesn't the description at page appendix 14636, which is the user's manual description of the LTC regulator control function, why doesn't that talk about the comparison step?

[00:05:23] Speaker 00:
I'm just pulling that up, Your Honor.

[00:05:25] Speaker 04:
OK, sure.

[00:05:30] Speaker 00:
And I'm sorry, where are you focusing on 14636?

[00:05:33] Speaker 04:
Page 14636 at the bottom.

[00:05:35] Speaker 04:
It talks about if the measured voltages, look at number one.

[00:05:41] Speaker 04:
It says if all measured voltages on feeders downstream of the LTC or regulator are below the voltage high limit and are higher than the lower voltage limit, then do something.

[00:05:52] Speaker 04:
And why isn't that a comparison of a target zone?

[00:05:58] Speaker 00:
Well, again, there may be comparisons done in the meters, but we're talking about comparisons of voltage done to generate an energy delivery parameter.

[00:06:05] Speaker 00:
Our experts admitted measured voltage data is never used to generate an energy delivery parameter.

[00:06:11] Speaker 00:
So there may be comparisons of voltage done, for example, out of the meters to see whether the meter is an exception state, but that's not the comparison of data that we're talking about in the claims.

[00:06:21] Speaker 00:
Moreover, they don't raise any of this heuristic information in their brief.

[00:06:26] Speaker 00:
This issue was a red herring, as counsel said, at trial.

[00:06:30] Speaker 00:
They dropped it, and we shouldn't be talking about it here on appeal for the first time.

[00:06:34] Speaker 04:
You had mentioned Dr. Brown's admission.

[00:06:36] Speaker 04:
Do you have the site for that handy, the appendix site?

[00:06:39] Speaker 00:
For Dr. Brown's admissions?

[00:06:41] Speaker 00:
Yes.

[00:06:41] Speaker 04:
Of?

[00:06:42] Speaker 04:
Where his admission that at least the other mode didn't provide the comparison step.

[00:06:48] Speaker 00:
I'd have to look for that.

[00:06:49] Speaker 04:
Okay.

[00:06:50] Speaker 00:
I don't have that.

[00:06:57] Speaker 00:
The third issue I wanted to address is the marking issue.

[00:07:01] Speaker 03:
No, I don't want you to go on.

[00:07:03] Speaker 03:
This is the only thing that I'm struggling with, and I don't fully understand it.

[00:07:07] Speaker 03:
So you need to spend more time on it, because this is where you're going to win or lose your case.

[00:07:10] Speaker 00:
On the heuristic?

[00:07:12] Speaker 03:
Yeah, and on the comparison.

[00:07:14] Speaker 03:
And the portion of the manual that Judge Stoll just pointed you to, is this limited to the heuristic mode, this portion of this manual?

[00:07:22] Speaker 03:
Because I'm not sure I understand your argument that this isn't the relevant

[00:07:27] Speaker 03:
comparison for the claims.

[00:07:30] Speaker 03:
So is this also within the umbrella of the heuristic mode, and therefore I should disregard it?

[00:07:37] Speaker 00:
Yes, this is limited to heuristic.

[00:07:47] Speaker 03:
How do I know that?

[00:07:50] Speaker 00:
I'd have to pull that for you, Your Honor.

[00:07:53] Speaker 00:
I mean, they do not raise this heuristic issue, I would submit, in their briefing.

[00:07:58] Speaker 04:
This issue was dropped below, so... I think they do raise it in their briefing.

[00:08:02] Speaker 04:
Do you think it's part of the heuristic because on page 14, 626, there's section 8.3 called heuristic LVM methodology, and this section that we're pointing to is 8.3 point something?

[00:08:16] Speaker 04:
Does that make sense to you?

[00:08:17] Speaker 04:
Yes, it does.

[00:08:24] Speaker 00:
But again, I think it's grossly unfair to say to a jury, this is a red herring, it's not an issue in this case, and then come up on appeal and say it is an issue in the case.

[00:08:32] Speaker 00:
I just think when you make those kind of concessions, that's the end of the issue for purposes of the trial.

[00:08:37] Speaker 00:
And that's the way we've addressed this appeal, is that issue's out of the case.

[00:08:42] Speaker 04:
And I understand you to be also saying, if I understand correctly, that in addition, the comparison that

[00:08:48] Speaker 04:
we pointed to doesn't meet the claim limitation because it doesn't generate an energy parameter?

[00:08:53] Speaker 00:
Absolutely.

[00:08:54] Speaker 04:
And that's an argument that was presented?

[00:08:56] Speaker 00:
Yes.

[00:08:57] Speaker 00:
I mean, the issues were squarely presented.

[00:09:00] Speaker 00:
Dr. Brown's admissions that we rely on in this are not limited to one mode or the other.

[00:09:04] Speaker 00:
I mean, that's the way our system operates.

[00:09:07] Speaker 00:
It's undisputed.

[00:09:21] Speaker 00:
I had sensed the court did not want me to move on to the other issues in the case.

[00:09:25] Speaker 00:
And if that's so, I'm happy to sit down and let a opposing counsel talk.

[00:09:28] Speaker 03:
I mean, do you have any questions for him?

[00:09:32] Speaker 03:
I don't have any questions for you.

[00:09:34] Speaker 03:
Do you want to talk on?

[00:09:35] Speaker 00:
No.

[00:09:35] Speaker 00:
I don't want to waste anybody's time here.

[00:09:37] Speaker 03:
All right, good.

[00:09:43] Speaker ?:
Sit down.

[00:09:43] Speaker 01:
Come on up.

[00:09:43] Speaker 01:
Good morning.

[00:09:46] Speaker 01:
Let me start by going through what the evidence was with respect to the comparison that the Alston system makes.

[00:09:53] Speaker 01:
And I would begin by drawing the court's attention to page 9965 of the appendix, where Mr. Powell reads a portion of the Alston website that is describing this system.

[00:10:06] Speaker 01:
And what it says is... I'm sorry, where did you direct it?

[00:10:10] Speaker 01:
I'm sorry, 9965, Your Honor.

[00:10:12] Speaker 03:
9965.

[00:10:15] Speaker 01:
Line five.

[00:10:22] Speaker 01:
Line five.

[00:10:31] Speaker 01:
Actually, line three, the witness is saying this is a web page that I've reviewed.

[00:10:35] Speaker 01:
This is actually Mr. Powell, the inventor.

[00:10:39] Speaker 01:
Question, what is it?

[00:10:40] Speaker 01:
Whose web page?

[00:10:41] Speaker 01:
Answer Alston's web page.

[00:10:43] Speaker 01:
And then he says he got it off the website.

[00:10:45] Speaker 01:
And then the lawyer asks him to read a portion of it to the jury.

[00:10:49] Speaker 01:
And on line 16, he says, this is coming from Alston's website, Alston's own description of its system, IVBC proactively queries for the near real-time voltage measurements from a small set of meters on each feeder to check that existing voltages are not too close to operational limits before issuing new controls.

[00:11:13] Speaker 01:
Then he says, that meant to me it was a bandwidth that they were checking against the measured voltages that they were getting through their system.

[00:11:22] Speaker 01:
Question who?

[00:11:23] Speaker 04:
When you look at the actual source documents, the user manual, doesn't it say that what they're doing is they're comparing that measured voltage to a calculated voltage?

[00:11:34] Speaker 04:
It does not say that they're comparing the measured voltage to a range, a target voltage range.

[00:11:42] Speaker 01:
Your Honor.

[00:11:43] Speaker 01:
Dr. Brown testified on multiple examples that they are doing exactly that comparison.

[00:11:50] Speaker 01:
It's a multi-step comparison.

[00:11:52] Speaker 01:
There are three steps.

[00:11:53] Speaker 04:
Please, because I look at the manual and I look at Dr. Brown's testimony, which is kind of broad, by the way, and I look at the manual and I see that there is a comparison to a measured voltage and then that differential

[00:12:11] Speaker 04:
comparison to a calculated voltage.

[00:12:14] Speaker 04:
And the differential between the calculated and measured is then used to change the voltage target zone.

[00:12:21] Speaker 04:
But I don't see anywhere where there's any sort of disclosure or statement that the measured voltage is compared to the voltage target zone.

[00:12:33] Speaker 01:
I understand what you're saying.

[00:12:36] Speaker 01:
And what Dr. Brown explained is it's a three-step process.

[00:12:39] Speaker 01:
So when they focus you on that third step, what somebody said was an admission, he was agreeing that that third step cannot be viewed in isolation.

[00:12:50] Speaker 01:
You have to look at all three of them.

[00:12:52] Speaker 01:
And while I'm not a math expert, I will represent you.

[00:12:55] Speaker 01:
I've worked this out several times in the course of looking at this appeal.

[00:12:58] Speaker 04:
Work it out for me right now.

[00:13:00] Speaker 04:
I don't want you to just refer to third step.

[00:13:02] Speaker 04:
I'm not following you.

[00:13:04] Speaker 04:
Baby steps, walk me through.

[00:13:06] Speaker 01:
Okay, so their process expressed as a mathematical equation would be, first you determine the error, calculation minus measurement, you add the limit, that equals your new adjusted limit, and then you compare that to see whether it's greater, equal, or less than the calculated voltage, right?

[00:13:29] Speaker 01:
So what you can do as a matter of algebra is you drop out that new limit part, because it says equal.

[00:13:36] Speaker 01:
And so on the one hand, you have the error plus limit, right?

[00:13:39] Speaker 01:
And on the other hand, you have the question, is it greater than, less than, or equal?

[00:13:44] Speaker 01:
And then you drop calculation out of both sides, and you discover what that equation is doing is solving for the relationship between the measurement and the original limit.

[00:13:54] Speaker 01:
And that's why Dr. Brown said,

[00:13:56] Speaker 01:
This is mathematically the comparison that the claim calls for.

[00:14:01] Speaker 04:
So you said there's a third step.

[00:14:05] Speaker 04:
Where is the third step disclosed?

[00:14:08] Speaker 04:
Because I look at the discussion by Dr. Brown, and I look at the source documents he's relying on, and I see the step of doing the comparison between the measured and the calculated, and I see the steps of adjusting the upper and lower limits.

[00:14:21] Speaker 04:
But then you said there was an extra step that you mentioned

[00:14:25] Speaker 04:
about then going back and doing some sort of other comparison.

[00:14:28] Speaker 04:
And I'm not seeing that.

[00:14:30] Speaker 01:
No, what I said was I was trying to simplify a little bit what I mean by the equation.

[00:14:36] Speaker 01:
But on page 38 of their brief, they say Dr. Brown accurately summarizes how the system works.

[00:14:44] Speaker 01:
We don't have a dispute.

[00:14:45] Speaker 01:
There are three steps.

[00:14:46] Speaker 01:
Determine the error, adjust the limit,

[00:14:49] Speaker 01:
compare the adjusted limit to the calculated belt voltage.

[00:14:52] Speaker 04:
Where is the compare the adjusted limit to the calculated amount?

[00:14:55] Speaker 04:
Where is that?

[00:14:56] Speaker 01:
It's on page 38 of their brief.

[00:14:59] Speaker 01:
They cite appendix 10562.

[00:15:05] Speaker 01:
We're not disputing that that's how their system works, but that is mathematically a comparison of the measurement

[00:15:11] Speaker 01:
to the original 114 to 126 limit.

[00:15:13] Speaker 03:
You say it's mathematically.

[00:15:15] Speaker 03:
That's a very results-oriented approach that only applies in DOE, sir.

[00:15:18] Speaker 03:
This is a literal infringement case.

[00:15:20] Speaker 03:
It requires comparison of two discrete things.

[00:15:22] Speaker 03:
You're saying the three-step approach laid out by Dr. Brown mathematically gets him to the same exact result.

[00:15:28] Speaker 03:
I don't know that Mr. Rainey would necessarily agree or disagree, but let's say he agrees with you.

[00:15:33] Speaker 03:
That's still not literal infringement.

[00:15:34] Speaker 03:
That's possibly a great DOE argument, but this is not a DOE case.

[00:15:38] Speaker 03:
Dr. Brown said they don't compare.

[00:15:40] Speaker 03:
the two things in the claims that need to be compared.

[00:15:43] Speaker 03:
That's the end of it for you.

[00:15:44] Speaker 01:
Well, Your Honor.

[00:15:45] Speaker 03:
Unless I'm missing something.

[00:15:48] Speaker 01:
It is the same thing.

[00:15:49] Speaker 01:
It is the comparison.

[00:15:51] Speaker 03:
One of the things we said to the jury, which they've taken- The judge says they don't compare those two things, but you get the same result with their three-step process.

[00:15:59] Speaker 03:
That's like saying distributive addition is the same as multiplication.

[00:16:03] Speaker 03:
3 plus 3 plus 3 plus 3 is 12, and 4 times 3 is 12.

[00:16:08] Speaker 03:
That doesn't mean addition and multiplication are the exact same function, even though they reach the same result.

[00:16:14] Speaker 01:
If you had a variable on one side and another variable on the other side, and you had two different ways of expressing the relationship, it's the same thing.

[00:16:24] Speaker 01:
It's the comparison.

[00:16:25] Speaker 01:
The claim doesn't say how to make the comparison.

[00:16:28] Speaker 01:
It just says make a comparison.

[00:16:31] Speaker 04:
You gave me a site to page A10652.

[00:16:34] Speaker 04:
81?

[00:16:37] Speaker 04:
Ejipu, joint appendix page 10652.

[00:16:42] Speaker 04:
And I can't find that in the appendix.

[00:16:46] Speaker 04:
Did I misunderstand what the appropriate page was?

[00:16:49] Speaker 01:
Well, I was actually citing you to their brief, which 10562?

[00:16:58] Speaker 01:
OK, they cite to 10562, Your Honor.

[00:17:03] Speaker 01:
And this is on page 38 of their brief.

[00:17:08] Speaker 01:
I was just accepting that as a correct 10562.

[00:17:13] Speaker 01:
Okay, thank you.

[00:17:19] Speaker 01:
Yeah, so it's describing a three-step process that results in a comparison.

[00:17:26] Speaker 01:
That's what the claim requires, a comparison.

[00:17:30] Speaker 01:
It doesn't say how to do the comparison.

[00:17:32] Speaker 01:
This is not a term that was construed.

[00:17:34] Speaker 01:
They're trying to shoehorn this into a specific way that they think this comparison should be made.

[00:17:39] Speaker 01:
And Dr. Brown repeatedly in his testimony said, this comparison is made, and here's how it's made.

[00:17:48] Speaker 01:
Through this three-step process.

[00:17:59] Speaker 03:
You haven't said anything about the heuristic mode.

[00:18:01] Speaker 03:
Do you agree with the footnote in the blue brief that indicates that that issue was waived during the closing argument?

[00:18:09] Speaker 01:
No, Your Honor.

[00:18:10] Speaker 01:
We did not waive it.

[00:18:11] Speaker 03:
What I responded to... Why don't we turn to page 11306 of the appendix?

[00:18:16] Speaker 03:
Is it 11306?

[00:18:17] Speaker 01:
I think it's 11306.

[00:18:22] Speaker 01:
Your Honor, I remember what I said.

[00:18:24] Speaker 03:
You heard about heuristic.

[00:18:26] Speaker 03:
It's almost the first time that you heard about it in the trial because what Duke is doing is optimizing.

[00:18:35] Speaker 03:
You heard a lot about optimizing, but you didn't hear about heuristic.

[00:18:37] Speaker 03:
That was simply a red herring.

[00:18:39] Speaker 03:
Really nothing at issue in this case.

[00:18:42] Speaker 01:
Yes, Your Honor.

[00:18:44] Speaker 01:
And the reason is because they didn't dispute.

[00:18:47] Speaker 01:
Because of the language that you pulled out of the manual, the heuristic infringes.

[00:18:52] Speaker 01:
But the evidence was that Duke wasn't using heuristic.

[00:18:56] Speaker 01:
they did in the closing was try to confuse the jury that the real issue was heuristic.

[00:19:02] Speaker 03:
In his blue brief, he didn't wait for the reply so you had no chance.

[00:19:05] Speaker 03:
In his blue brief, he says expressly and unequivocally, you waived any claims to the heuristic model, your heuristic mode.

[00:19:12] Speaker 03:
He says it.

[00:19:12] Speaker 03:
You never address it in the red brief.

[00:19:15] Speaker 03:
It's like it wasn't said.

[00:19:16] Speaker 03:
I mean, didn't you therefore waive a claim that it wasn't given up by you below?

[00:19:23] Speaker 03:
You didn't address it.

[00:19:24] Speaker 03:
He says you waive it.

[00:19:25] Speaker 03:
There's some language in the closing, which I could interpret as a waiver.

[00:19:28] Speaker 03:
I'm not sure how to interpret it.

[00:19:29] Speaker 03:
This case is quite confusing.

[00:19:31] Speaker 03:
But you simply didn't even respond to the argument in your red brief.

[00:19:35] Speaker 01:
And the reason, Your Honor, is because they were using optimizing.

[00:19:40] Speaker 01:
That's what the jury trial was about.

[00:19:42] Speaker 04:
So it doesn't matter whether you waived it or not.

[00:19:45] Speaker 04:
The point is it doesn't matter at all because Duke didn't use it.

[00:19:48] Speaker 04:
And we're looking at Duke's system.

[00:19:49] Speaker 04:
That is the accused product.

[00:19:51] Speaker 04:
So we really shouldn't be looking at this.

[00:19:53] Speaker 01:
I didn't spend time in my brief on heuristic because I didn't believe it to be an issue in the trial.

[00:19:59] Speaker 01:
No, that's right.

[00:20:00] Speaker 02:
Wait, so are you saying that we couldn't support a finding of infringement on the heuristic method because that's not what Duke uses?

[00:20:11] Speaker 01:
There wasn't any evidence that they were using heuristic, Your Honor.

[00:20:14] Speaker 02:
That's right.

[00:20:14] Speaker 02:
It really isn't an issue in the case.

[00:20:16] Speaker 01:
That's why he said it was a red herring.

[00:20:18] Speaker 02:
Right, but whether we talk about it under waiver or not, even if the heuristic method

[00:20:23] Speaker 02:
potentially could infringe, it doesn't support a verdict of infringement here, and you're waiving any argument that it does, because that's not what Duke uses.

[00:20:34] Speaker 02:
I know you're afraid of the waiver argument, but you're saying the same thing.

[00:20:39] Speaker 02:
You're saying they don't use this method, therefore they can't infringe our patent

[00:20:45] Speaker 02:
under this method.

[00:20:46] Speaker 02:
They use another method.

[00:20:47] Speaker 02:
We have to show that that method infringes.

[00:20:49] Speaker 02:
Is that right?

[00:20:50] Speaker 02:
That is right.

[00:20:51] Speaker 01:
I don't accept that there was any waiver.

[00:20:53] Speaker 01:
Dr. Brown actually did testify on direct that the heuristic method waives.

[00:20:57] Speaker 02:
You're getting hung up on the waiver issue.

[00:20:59] Speaker 02:
Are you making any claim that Duke infringes based upon the heuristic method as opposed to the other method?

[00:21:05] Speaker 01:
No, sir.

[00:21:06] Speaker 01:
Because there was no evidence that they used heuristic.

[00:21:08] Speaker 02:
So we don't have to look at whether heuristic infringes or not.

[00:21:11] Speaker 01:
Correct.

[00:21:12] Speaker 01:
Correct.

[00:21:12] Speaker 01:
That's correct.

[00:21:16] Speaker 01:
So the evidence with respect to comparison is not simply Dr. Brown's testimony.

[00:21:20] Speaker 01:
As I was saying, their own website, which says, we make this comparison, which was read into the record, which the jury heard, at 9965.

[00:21:30] Speaker 01:
Mr. Boardman had a meeting with Mr. Powell shortly after they saw that language.

[00:21:37] Speaker 03:
Where is it there?

[00:21:38] Speaker 03:
The 9965?

[00:21:39] Speaker 03:
Are you talking about your inventor's testimony about their website?

[00:21:44] Speaker 01:
He read their website to the jury.

[00:21:47] Speaker 03:
OK.

[00:21:47] Speaker 03:
I don't see anything on 9965, which is where he just pointed me, where he's reading their website, which supposedly it means that the comparison is done.

[00:21:57] Speaker 03:
I don't see that at 9965.

[00:21:58] Speaker 03:
Am I missing it?

[00:22:02] Speaker 01:
So Your Honor, line 16, he's reading.

[00:22:07] Speaker 01:
That is what the website says.

[00:22:09] Speaker 01:
IVVC, which is the system at issue here,

[00:22:12] Speaker 01:
proactively queries for the near real-time voltage measurements from a small set of meters on each feeder to check that existing voltages are not close to operational limits.

[00:22:23] Speaker 04:
The check is, I'm looking at a measurement... Your view is because it says operational limits, it must be comparing to a target zone.

[00:22:31] Speaker 01:
Yes.

[00:22:32] Speaker 01:
That's what the claim says, a target band.

[00:22:35] Speaker 01:
That's this.

[00:22:36] Speaker 01:
114 at the low end, there's no dispute about that in the record.

[00:22:40] Speaker 01:
114 at the low end, 126 at the high end.

[00:22:43] Speaker 01:
Then he's asked again, who's doing this?

[00:22:45] Speaker 01:
Alston was using a bandwidth to check smart meters, another component of what's in it.

[00:22:51] Speaker 01:
And then he goes on on the next page, 9966, to say, these inform the measurements, the brown out alarms, the IVVC function, when meter locations are approaching a low voltage limit,

[00:23:04] Speaker 01:
and provides a warning, no further voltage reduction.

[00:23:08] Speaker 04:
On 9968... It was because the website has that language about operational limits, that that should be more something that we rely on, notwithstanding the fact that when we look at the user's manual and we look at Dr. Brown's testimony about exact operation, it talks about comparing a measured voltage to a calculated voltage.

[00:23:29] Speaker 01:
Well, Your Honor,

[00:23:31] Speaker 01:
I'm saying there is substantial evidence that the jury heard, this is only one piece of it, as a result of which it made the conclusion, it came to the conclusion that there was a comparison.

[00:23:44] Speaker 01:
And we're here to see whether there was enough evidence for a reasonable juror to make that conclusion.

[00:23:50] Speaker 01:
And so when their website says, we make this check,

[00:23:54] Speaker 01:
And on 9968, when they have a meeting, and Mr. Boardman says, yeah, we don't rely on calculated, we rely on measured.

[00:24:02] Speaker 01:
Why is that?

[00:24:03] Speaker 01:
Because that's what their algorithm does.

[00:24:06] Speaker 01:
It compares.

[00:24:07] Speaker 01:
They have other steps.

[00:24:08] Speaker 01:
I'm not disputing that.

[00:24:09] Speaker 01:
Their algorithm compares the measurement to the limit, to the, not the adjusted limit, the 114, 126, which is what all of our electrical appliances operate on.

[00:24:23] Speaker 01:
So there's testimony from Mr. Boardman twice in this record.

[00:24:27] Speaker 01:
Yeah, we disregard the calculated voltage.

[00:24:30] Speaker 01:
We rely only on the measurement.

[00:24:33] Speaker 01:
And why is that?

[00:24:34] Speaker 01:
Because when you look at the algorithm, you can see calculated voltage doesn't matter.

[00:24:39] Speaker 01:
It falls out.

[00:24:40] Speaker 01:
It's irrelevant.

[00:24:42] Speaker 01:
And why do they do that?

[00:24:44] Speaker 01:
They do that because that same document you're talking about says calculated is almost always wrong.

[00:24:49] Speaker 01:
Why would we rely on that when we have a measurement that's going to be right?

[00:24:54] Speaker 01:
That's how their system works.

[00:24:56] Speaker 03:
Okay, your time is up.

[00:24:58] Speaker 03:
Mr. Rainey, you have a little bit of rebuttal time.

[00:25:00] Speaker 03:
I actually have a lot of rebuttal time.

[00:25:03] Speaker 00:
Unless the court has any further questions, I'm prepared to... I want you to address the website.

[00:25:08] Speaker 03:
The testimony of the inventor reading the website.

[00:25:10] Speaker 00:
The website doesn't say anything other than they've been saying all along, which is, first of all, there's two different issues with respect to the

[00:25:20] Speaker 00:
to the target voltage.

[00:25:22] Speaker 00:
There's meters reporting exceptions, so the meters will say, hey, I'm outside of range, I'm inside of range.

[00:25:27] Speaker 00:
Totally not an issue in this case.

[00:25:29] Speaker 00:
This case, these claims are clearly talking about comparing a voltage, measured voltage, to the target voltage range to generate an energy delivery parameter in the controller that's doing that.

[00:25:39] Speaker 00:
Not talking about what's happening out at the meters.

[00:25:41] Speaker 00:
Point two, there's no question that our system had the capability, it doesn't now, it's been stripped out of the product, but had the capability

[00:25:48] Speaker 00:
to use measured voltages.

[00:25:49] Speaker 00:
And it runs through a series of computations to use that voltage, which is undisputed.

[00:25:53] Speaker 00:
There's no dispute about how our software operates.

[00:25:56] Speaker 00:
The website doesn't create a dispute about that.

[00:25:58] Speaker 00:
It doesn't get into the details about how anything is done.

[00:26:01] Speaker 00:
And to us, how things happen are precisely what patent claims are all about.

[00:26:05] Speaker 00:
It's what this patent claims about.

[00:26:12] Speaker 03:
OK.

[00:26:13] Speaker 03:
Thank you, Council, for their argument.

[00:26:14] Speaker 03:
The case is taken under submission.

[00:26:15] Speaker 00:
Thank you very much, Your Honor.