[00:00:09] Speaker 03: The next argued case is number 17, 2673, Minnmeier against Auerbach representatives. [00:00:30] Speaker 03: Mr. McAndrews. [00:00:37] Speaker 02: Visited the court many times your honor. [00:00:40] Speaker 02: I just not not with my reading glasses, so Bear with me just a moment of adjustment here time marches on I suppose May it please the court good morning your honors best very best wishes to judge Laurie who I understand is listening in for a For a speedy recovery judge so [00:01:07] Speaker 02: Our patent system has as many objectives. [00:01:12] Speaker 02: But one of the primary objectives is not just to protect the interests of the inventor or the patent holder, Mr. Minnemeier in this case. [00:01:23] Speaker 02: Another important interest is to protect those of the competitors in the marketplace. [00:01:30] Speaker 02: In this case, my clients, Mr. and Mrs. Lundin and their co-defendants. [00:01:36] Speaker 02: and, as importantly, the public. [00:01:39] Speaker 02: That objective failed in this case for two primary reasons. [00:01:44] Speaker 02: You've seen the arguments in our brief. [00:01:46] Speaker 01: Your main argument seems to be that Nautilus v. Biosig upholds Stark case represented a sea change in the law such that you couldn't raise the defense of indefiniteness until 2014. [00:02:04] Speaker 02: We present that as our second argument, Your Honor, but it is equally compelling, and I agree. [00:02:12] Speaker 02: I think Nautilus absolutely represents a sea change. [00:02:16] Speaker 01: What case support do you have where we allowed a party to assert for the first time into a seven-year litigation the defense of indefiniteness based upon Nautilus? [00:02:31] Speaker 02: Your Honor, I believe you said on the Dow Chemical panel, in my reading of the Dow Chemical case, is that issues of claim preclusion, rush judicata, and law of the case do not apply on facts such as these. [00:02:48] Speaker 01: Dow Chemical had nothing to do with leave to a man. [00:02:51] Speaker 01: But it was about whether, in light of Nautilus, we were bound by our decision in a previous pre-Nautilus appeal that claims were not indefinite. [00:03:01] Speaker 01: Your Honor, I think the legal, the overriding legal issue of a substantial change... How can you say Dow Chemical applies when RBOC never once presented any indefiniteness defense until seven years into the litigation and two years after the first trial had already run? [00:03:25] Speaker 02: Indeed, we initially [00:03:26] Speaker 02: did present, and that was briefed to the lower court. [00:03:29] Speaker 02: But I think for the purposes of appeal, the point is that immediately after... Wait, wait, wait. [00:03:35] Speaker 02: Go backwards. [00:03:36] Speaker 01: Yes. [00:03:37] Speaker 01: Indeed, we did initially present... I'm sorry. [00:03:42] Speaker 02: We pled indefiniteness, and then we withdrew it as we moved on in the proceedings. [00:03:49] Speaker 02: Within two weeks, as we said in our brief, Judge Wallach of the Supreme Court's [00:03:55] Speaker 02: decision and nautilus. [00:03:57] Speaker 02: We moved for leave to amend our contentions, our expert report. [00:04:04] Speaker 02: We did something else, though. [00:04:05] Speaker 02: We also filed a motion for summary judgment that the magistrate judge granted a briefing schedule on and considered. [00:04:15] Speaker 01: Finding abusive discretion under a district court's application of local rules is a pretty high bar when it comes to it. [00:04:25] Speaker 01: a proposed amendment. [00:04:26] Speaker 02: Admittedly, it is a high bar. [00:04:28] Speaker 02: But one of the hallmarks of abusive discretion is a misapplication of the law. [00:04:32] Speaker 02: And on that count, we think the magistrate got it wrong. [00:04:36] Speaker 01: Do you have a case where a party waited seven years in litigation to raise an indefinite defense and was allowed to amend? [00:04:47] Speaker 02: I don't have a case. [00:04:51] Speaker 01: But you knew it was possible because you say you [00:04:54] Speaker 01: You initially started with it and then abandoned it. [00:04:58] Speaker 02: We did. [00:04:59] Speaker 02: But we were also presenting those arguments at the time on indefiniteness and considering them, Your Honor, in the context of the law as it existed at the time. [00:05:09] Speaker 02: So yes, Nautilus was a sea change. [00:05:12] Speaker 02: With respect to the abuse of discretion standard, we cited the law that this court will apply the law of the regional circuit on issues of law. [00:05:22] Speaker 02: that are to be considered de novo, waiver is one of those issues. [00:05:25] Speaker 02: And we think the magistrate judge got the issue of waiver wrong on an incredibly important issue here. [00:05:35] Speaker 01: Just out of curiosity, is it our BOC or our BOC? [00:05:41] Speaker 02: It's our BOC. [00:05:41] Speaker 02: I'm sorry. [00:05:42] Speaker 02: I didn't want to correct you. [00:05:44] Speaker 02: In fact, when you first said it, Connor, I was considering, is that an acronym for a post-Dowell case that I should be aware of? [00:05:51] Speaker 01: So why did Arbok ever stipulate to the approximately perpendicular claim to mean approximately 90 degrees in lieu of a Markman hearing? [00:06:02] Speaker 02: Yeah. [00:06:02] Speaker 02: And to be fair to Mr. and Mrs. Lundeen, they're here today. [00:06:05] Speaker 02: They didn't stipulate to it. [00:06:06] Speaker 02: I stipulated to it at the time. [00:06:09] Speaker 02: Well, you are them. [00:06:10] Speaker 02: I am them. [00:06:11] Speaker 02: Of course I am. [00:06:12] Speaker 02: I stand in their shoes. [00:06:15] Speaker 02: In looking at the context of Claim 12 with the numerous [00:06:19] Speaker 02: what we are calling the applicable terms that appear in the glossary. [00:06:24] Speaker 02: I can give the citation, and I will in a moment. [00:06:28] Speaker 02: Perpendicular, we do understand to be 90 degrees. [00:06:32] Speaker 02: That's the reference point. [00:06:34] Speaker 02: But there was uncertainty throughout the record. [00:06:39] Speaker 02: We cited in the brief to the testimony of Mr. Minnmeier himself, where he said, when I questioned him on it at his deposition, then [00:06:48] Speaker 02: Trial of Minnemeier 1. [00:06:50] Speaker 02: I note that Your Honors Newman and Wallach sat on the panel back in 2013. [00:06:56] Speaker 01: I remember it. [00:06:57] Speaker 02: For our first go around. [00:06:58] Speaker 02: These are significantly different circumstances. [00:07:02] Speaker 02: Of course, we're dealing with a redesigned product here. [00:07:05] Speaker 02: And we want to foster the concept of redesign in competition. [00:07:13] Speaker 02: But to the point, Mr. Minnemeier's response to my question of trial [00:07:18] Speaker 02: What is approximately perpendicular? [00:07:21] Speaker 02: The magistrate judge identified Mr. Minnmeyer as one of ordinary skill in the art. [00:07:27] Speaker 02: The skilled artist's testimony was good question, probably not a lot past five degrees. [00:07:36] Speaker 02: Not surprising, the design specification for Mr. Minnmeyer's own Lausanne product, which is the commercial embodiment in this case. [00:07:43] Speaker 01: I seem to recall references to 80 degrees. [00:07:47] Speaker 02: There are, and let me cite to a footnote that at least I have used, the district court did. [00:07:52] Speaker 02: We are speaking in terms of complementary angles. [00:07:55] Speaker 02: We did so throughout the proceedings below. [00:07:58] Speaker 02: And I think you'll see in the briefing, use of complementary angles is replete in footnotes. [00:08:06] Speaker 02: We include the explanatory. [00:08:10] Speaker 02: Complementary angles are easily reconciled, because the sum of the two always equal the right angle. [00:08:18] Speaker 02: not 90 degrees here. [00:08:19] Speaker 02: So to flip it, Mr. Minnmeier's testimony would have been translating, it would have been good question, you know, not a lot past 85 degrees. [00:08:33] Speaker 02: Not a lot less than 85 degrees because we're flipping it. [00:08:37] Speaker 01: He went on, he said you start getting... I've seen recalls saying 80, I mentioned 70. [00:08:45] Speaker 02: I'm sorry. [00:08:46] Speaker 02: You're recalling from the 2013 Minnmeier 1. [00:08:52] Speaker 01: I think I'm recalling from the record here. [00:08:54] Speaker 02: So perhaps. [00:08:56] Speaker 02: The points of reference, if I may use the complementary angles as we did and the magistrate judge did. [00:09:03] Speaker 02: Five degrees was the design specification and the undisputed measurement of Mr. Minnmeier's Lausanne coupler. [00:09:11] Speaker 01: I think we better touch on TiVo. [00:09:14] Speaker 02: TiVo. [00:09:15] Speaker 01: So right out of the chute in the magistrate's 72-page opinion, he expressed his... How can you argue that the court used the incorrect test to determine continued infringement from TiVo when the court expressly performed both prongs of the TiVo analysis? [00:09:41] Speaker 02: I agree, Your Honor. [00:09:44] Speaker 02: that the court said, it recognized the law under Tevo. [00:09:50] Speaker 02: The first thing the judge did was express confusion as to why you need to reach the issue of infringement once there has been a finding that a redesigned product is no more than colorably different from an originally adjudicated infringing product. [00:10:07] Speaker 02: Of course, in this case, we're talking about the original BNC coupler versus the redesigned [00:10:13] Speaker 02: B and C coupler. [00:10:15] Speaker 02: Appendix page 49, I'd call the court's attention to that. [00:10:20] Speaker 02: The court quotes in speaking of the two-pronged T-vote, as therein lies the rub. [00:10:26] Speaker 02: Because in case after case, the federal circuit also tells us that when differences between devices are merely colorable, that means they are essentially the same, which in turn means the collateral estoppel applies in a finding [00:10:43] Speaker 02: A finding of infringement, one of my glasses on, is appropriate close quote. [00:10:48] Speaker 02: An argument embraced throughout the proceeding below by our colleagues, representing Mr. Minnemeier. [00:10:56] Speaker 02: I do not agree that that is the standard. [00:10:59] Speaker 02: It is certainly not the standard post-TIVO. [00:11:02] Speaker 02: On the next page, appendix page 50, the quote went on in expressing [00:11:09] Speaker 02: how it was perplexed. [00:11:11] Speaker 01: So let's talk about 50 and 51. [00:11:13] Speaker 01: Yes. [00:11:14] Speaker 01: The blue brief at 51 and 52 suggests that the district court improperly considers subjective intent and state of mind. [00:11:28] Speaker 01: And as part of its analysis, citing to 50 and 51 in the JA, [00:11:38] Speaker 01: where the district court says, if changes were made to the angles of the threads, they seem, for the most part, unintentional, and that our BACA executives did not even know any such changes were made to the thread angles. [00:11:52] Speaker 01: In the red brief, it points out that those are only partial quotes from the district court's determination that weighed the credibility of both parties' witnesses' testimony. [00:12:07] Speaker 01: And I looked, and indeed they are. [00:12:09] Speaker 01: only partial quotes. [00:12:12] Speaker 01: Do you still allege, looking at the entire language I've got it all underlined, do you still allege the district court imported some type of intent element? [00:12:26] Speaker 02: Based on what is cited at what I understand to be 50 and 51 of the blue book? [00:12:32] Speaker 02: Yeah, you mentioned, Your Honor. [00:12:34] Speaker 01: 51 and 52 of the blue brief. [00:12:37] Speaker 01: I didn't want to confuse you. [00:12:39] Speaker 01: That's why I was trying to. [00:12:40] Speaker 01: No. [00:12:40] Speaker 01: 50 and 51 of the record. [00:12:44] Speaker 02: Based on not just what is cited on this page, but elsewhere in our brief, and elsewhere within appendix 49 through 56, which is the purported infringement section. [00:12:56] Speaker 02: It's the infringement section of the district court's analysis. [00:13:02] Speaker 02: It is very clear that the court considered intent. [00:13:05] Speaker 02: It spoke of haphazard. [00:13:07] Speaker 02: the arrangement, there's reference elsewhere, Your Honor. [00:13:11] Speaker 02: And perhaps I may not be able to queue myself up to it right now on the fly, but I will certainly do so. [00:13:17] Speaker 01: I'll bet your opposing counsel will help you. [00:13:19] Speaker 02: Perhaps. [00:13:21] Speaker 02: That is one of the several, several assignments of error. [00:13:25] Speaker 02: The further point the court made about the conundrum, my term, not the court's, the Tebow conundrum, [00:13:33] Speaker 02: So if this line of cases, again referring to the Federal Circuit Authority, all 2008 pre-TIBO cases, tells us that a device that is no more than colorably different from a device also found in fringe, why then does TIBO require a second step of analysis after the no more than colorably different finding, which the court reached in this case relative to the first two? [00:13:58] Speaker 02: The answer is we don't know. [00:14:02] Speaker 02: And while we suspect the issue of infringement has been settled, that is the district court is saying it suspects the issue of infringement has been resolved by virtue of the first prong of the test. [00:14:14] Speaker 02: But that is precisely what TiVo was designed to change. [00:14:20] Speaker 02: There still must be a finding under 271 of infringement. [00:14:25] Speaker 02: In this case, importantly, Your Honors, it has to be literal infringement. [00:14:31] Speaker 02: Why? [00:14:32] Speaker 02: As in Minnemeier 1, in Minnemeier 2, Mr. Minnemeier expressly waived reliance on the doctrine of equivalence. [00:14:40] Speaker 02: Why does Tebow require the separate analysis, infringement after a finding of essential sameness, which is the terms that my colleagues used in the proceedings below? [00:14:53] Speaker 02: Perhaps an analogy. [00:14:55] Speaker 02: If there is a bicycle wheel with 28 spokes, that's the original product. [00:15:01] Speaker 02: and you have a redesigned product that's the same bicycle wheel, or it's a bicycle wheel with 32 spokes, they may be essentially the same under the colorable differences analysis. [00:15:13] Speaker 02: Are they used for the same purpose? [00:15:14] Speaker 02: Certainly. [00:15:15] Speaker 02: I put it on the front or the rear of my bicycle. [00:15:17] Speaker 02: Are they used to support someone in a vehicle in motion with pedals? [00:15:22] Speaker 02: Yes, they are. [00:15:24] Speaker 02: However, when you get to the issues that matter in a PET infringement case, which is, [00:15:31] Speaker 02: How do the claim terms, as construed, apply to the accused product? [00:15:37] Speaker 02: You're not comparing products there. [00:15:40] Speaker 02: You're comparing claim language to accused product. [00:15:44] Speaker 02: It can be all the difference in the world, because the claim may specify a bicycle wheel wherein there are 28 spokes. [00:15:55] Speaker 02: That's why the distinction is important. [00:15:58] Speaker 02: We argued exhaustively. [00:16:00] Speaker 02: on that point to the district court. [00:16:02] Speaker 02: It seemed to be lost on the court, and it certainly was on our colleagues. [00:16:05] Speaker 02: They literally argued throughout trial and their post trial, and we've cited their excerpts to you, that you don't need to reach the second prong of TiVo upon a finding of colorable differences. [00:16:21] Speaker 02: It's a critical difference. [00:16:23] Speaker 03: Some of the specificists. [00:16:25] Speaker 03: Let's hear, where do you rebuttal time? [00:16:27] Speaker 03: So we'll save the rebuttal, but let's hear from the other side. [00:16:30] Speaker 02: Thank you, Your Honor. [00:16:36] Speaker 02: I apologize. [00:16:37] Speaker 02: Was I over time? [00:16:38] Speaker 02: I was showing I had 35 seconds. [00:16:40] Speaker 02: You were 35-0. [00:16:41] Speaker 02: I'm sorry about that. [00:16:45] Speaker 00: He can take my time. [00:16:46] Speaker 01: I'm sure I won't use it all up. [00:16:48] Speaker 01: Mr. Chalmers. [00:16:49] Speaker 01: May it please the court. [00:16:50] Speaker 01: Why don't you start just elucidate for your opposing counsel what the court actually said [00:16:59] Speaker 01: 50 and 51 in the appendix? [00:17:02] Speaker 00: Well, in 50 and 51, the court was. [00:17:05] Speaker 00: It just didn't look to me like he imported intent. [00:17:11] Speaker 00: Importing intent. [00:17:13] Speaker 00: Well, there is a great deal of intent in the case generally, because, of course, the court found they had a global credibility problem. [00:17:20] Speaker 00: He lied about almost everything of any importance. [00:17:24] Speaker 01: And he had an intent. [00:17:26] Speaker 01: But his use, saying that it was [00:17:28] Speaker 01: like Kronos' Good Luck piece by happenstance, there is an element of, I think if he imported anything, it was sarcasm. [00:17:36] Speaker 00: Oh, without doubt. [00:17:39] Speaker 00: And the absurdity of it was what impressed the court more than anything. [00:17:43] Speaker 00: And that's the tone he took in his opinion. [00:17:46] Speaker 00: Because these arguments would come out of nowhere with no evidence to support them, no documentary record, admissions contrary to the current argument. [00:17:58] Speaker 00: The prior verdict, the claim construction being stipulated and then evaded, try to circumvent that constantly. [00:18:07] Speaker 00: So all of these things that the court, I think, looked at with some hostility and certainly played into its triple damage and fees award at the end. [00:18:17] Speaker 00: So I can't blame the judge for not compartmentalizing all of these things 100%. [00:18:26] Speaker 00: However, when it comes to TiVo, there's no doubt he followed the letter of the law on that case because sure, he had collateral estoppel based on no colorable differences, something they don't appeal here. [00:18:40] Speaker 00: And that would be the Helco line of cases and the others he cites for that. [00:18:46] Speaker 00: I don't think TiVo reversed that line of cases at all. [00:18:50] Speaker 00: And in fact, in footnote four of the TiVo case, it says the court's free to employ any traditional means of proof [00:18:57] Speaker 00: that are available, such as collateral estoppel. [00:18:59] Speaker 00: But then he went on and did it anyway. [00:19:01] Speaker 00: And in 50-51 is exactly where he summarizes that, although there are other parts in the opinion where he talks about infringement. [00:19:09] Speaker 00: But he takes four basic approaches to it. [00:19:11] Speaker 00: One is the common sense approach that says, we had an infringing product at the first trial. [00:19:17] Speaker 00: There were no changes. [00:19:18] Speaker 00: So just a matter of common sense, this one infringes too. [00:19:24] Speaker 00: Then he also does the culpable difference [00:19:27] Speaker 00: applies that nonetheless. [00:19:29] Speaker 00: Then he goes on and compares Kaiser's testimony. [00:19:33] Speaker 00: He doesn't quote it all in his opinion. [00:19:35] Speaker 00: We give it to the court in our brief where Kaiser says 75 is approximately perpendicular, just like 80 was the first. [00:19:42] Speaker 00: That's what I was recalling, yes. [00:19:44] Speaker 00: Yes. [00:19:44] Speaker 00: So the whole premise of the second trial was that they wanted to say it was 80 versus 75, and they couldn't explain how it changed, but it did. [00:19:54] Speaker 00: The only change really was a new expert who re-measured stuff because they were always in that range. [00:20:01] Speaker 00: And the court then gets down and compares Mr. Kaiser, our guy on 75, he says it's approximately perpendicular, their guy, Mr. Progecki, who makes the product. [00:20:11] Speaker 00: You know, this is it, by the way. [00:20:12] Speaker 00: It's nothing technologically [00:20:15] Speaker 00: special, but Mr. Krojecki, the guy who molded it, he said, whatever. [00:20:19] Speaker 00: It's approximately perpendicular at 75. [00:20:22] Speaker 00: And then the court contrasts that with their expert, Dr. Stores, who was in the clouds, head in the clouds, and wasn't dealing with the product or the claim language, approximately perpendicular. [00:20:35] Speaker 00: So I don't know how anybody could read the court's opinion and somehow say that he flubbed TiVo. [00:20:47] Speaker 00: Now, a couple things I noticed from the first part of the argument here. [00:20:57] Speaker 00: The court was interested to know why they stipulated to claim construction approximately 90 degrees. [00:21:02] Speaker 00: That was something of a gift. [00:21:04] Speaker 00: They could have contested that then. [00:21:07] Speaker 00: And maybe at that point, Minnmeier's testimony about what his product was at could have been relevant. [00:21:14] Speaker 00: There are cases though that say that inventor testimony irrelevant to claim scope. [00:21:19] Speaker 00: So we would have had that fight and maybe we would have pegged it at 75 or 60, which is a standard thread, 60 degrees. [00:21:28] Speaker 00: But we didn't do that. [00:21:29] Speaker 00: And so neither did the jury the first time around say it's 80 and no less. [00:21:35] Speaker 00: And the judge notices that too. [00:21:36] Speaker 00: So obviously you're dealing with plastics, you're dealing with the width of a human hair on these things. [00:21:44] Speaker 00: all things considered seventy-five infringes and that is independent uh... supported opinion and i think it'd be awfully hard to say that you clearly heard in in making it uh... no less uh... that may be the primary argument honestly but it's not uh... i thought it was that they put some of the president because next some effort into it but the court's right there's no support for it and now there's a totally different situation uh... [00:22:15] Speaker 00: And I don't even see the issue as one of a waiver because the court used that term and they key on it. [00:22:22] Speaker 00: But all the court was doing was saying, you know, look, you raised it, you abandoned it, and now you want to bring it back because it's convenient. [00:22:32] Speaker 00: But I don't see the landscape as changing. [00:22:34] Speaker 00: Your arguments all involve the old cases before Nautilus. [00:22:41] Speaker 01: Whether the test was the old test or the new test, I don't see a different result. [00:22:47] Speaker 00: No, and certainly even if you were to reach the merits, it's got approximately perpendicular. [00:22:52] Speaker 00: There's a firm end on there. [00:22:54] Speaker 00: But anyway, that's a moot question too, because I think as we note in the briefs, once the colorable difference question is settled, then that [00:23:02] Speaker 00: cuts out these defenses, including this nautilus defense. [00:23:06] Speaker 00: So it really doesn't get them anywhere at the end of the day. [00:23:09] Speaker 00: Since they don't appeal colorable differences, they're stuck. [00:23:16] Speaker 00: That's all I have, unless there are additional questions. [00:23:19] Speaker 00: You can have my rebuttal time. [00:23:21] Speaker 02: Thank you for the rebuttal time, counselor. [00:23:30] Speaker 02: So a couple of points. [00:23:33] Speaker 02: On the issue and the refrain that we hear, that nothing changed between the original coupler and the redesign. [00:23:42] Speaker 02: First of all, we have to focus on the issues at bar in Minnemeier, too. [00:23:47] Speaker 02: Certainly something changed, because by Mr. Minnemeier's own admission, he dropped assertion of claims 2, 3, and 4 of the 726 patent. [00:23:57] Speaker 02: And the reason is, and I would direct the court's attention to page 19, [00:24:03] Speaker 02: of our main brief. [00:24:05] Speaker 02: May I hold this up? [00:24:09] Speaker 02: This has an image that contrasts the trial exhibits. [00:24:13] Speaker 03: It's in your brief, isn't it? [00:24:15] Speaker 02: It is, Your Honor. [00:24:15] Speaker 02: It's page 19 of our main brief, the blue book. [00:24:20] Speaker 02: The upper coupler is a cross section, or a half section, if you will, of the B and C redesign that's at issue in Minnemeier II. [00:24:29] Speaker 02: The lower of the two images is a half section, the cross section [00:24:33] Speaker 02: of the original BNC coupler at issue in Minnermeier 1. [00:24:39] Speaker 02: You will see reference with our annotation to a sealing surface. [00:24:44] Speaker 02: That's a smooth, annular seal ring that appears on either side of what is called the raised center stop. [00:24:52] Speaker 02: That came out between the two products. [00:24:54] Speaker 02: That is a critical distinction. [00:24:57] Speaker 02: Colorable differences talks about a product to product comparison. [00:25:01] Speaker 02: And in that respect, you do look at the old and the new. [00:25:05] Speaker 02: It's hard to claim that the redesigned product is the very same as the original product when Mr. Minnemeier had to drop his assertion of claims two, three, and four, each of which is addressed to that smooth ceiling surface. [00:25:19] Speaker 02: You see it's no longer there. [00:25:21] Speaker 02: The other critical point, and this comes, we will arrive at what is relevant to this cage, which are the thread angles. [00:25:29] Speaker 02: the approximately perpendicular, approximately 90 degree limitation. [00:25:33] Speaker 02: You'll see that the raised center stop of the original coupler is much wider. [00:25:42] Speaker 02: And so when you take the additional width of the center stop with those ceiling surfaces and then look right up above to the redesigned product, what appear there? [00:25:53] Speaker 02: Additional threads. [00:25:55] Speaker 02: This notion [00:25:56] Speaker 02: that there were not additional threads cut into the core inserts, which are the internal part of the mold that create these, is a preposterous theory. [00:26:06] Speaker 02: And yet, that was the refrain that we heard at trial. [00:26:09] Speaker 02: Nothing has changed about these. [00:26:11] Speaker 02: By the way, the only thing that changed is a new expert, the insinuation from my colleague that we just got a new expert who came up with these magical 75 degree measurements. [00:26:23] Speaker 02: The first measurements we had in the case [00:26:25] Speaker 02: came from Stephen Kaiser, Mr. Minnmeier's expert witness. [00:26:30] Speaker 02: Every single one of his 126 discrete measurements, not of the old product, of the new product, averaged 74.65 degrees. [00:26:41] Speaker 02: Of course, something changed. [00:26:43] Speaker 02: Further, Mr. Kaiser admitted at trial that the threads that he measured were the three threads closest to the center stop on either side. [00:26:54] Speaker 02: What does that mean? [00:26:56] Speaker 02: based on the clear construction, the clear structure of each of these. [00:27:01] Speaker 02: He was measuring threads that were newly cut that didn't even exist on the core inserts used to manufacture the original products. [00:27:12] Speaker 02: And on that count, there is no dispute the measurements are 75 degrees. [00:27:19] Speaker 02: I think when you look at the district court's portion of the infringement analysis, [00:27:25] Speaker 02: They accept that 75 degrees is the measurement. [00:27:28] Speaker 03: Okay, we need to wrap it up with your last advice. [00:27:35] Speaker 03: We're exhausted. [00:27:36] Speaker 03: Is there anything you need to direct us to, particularly if it's in your brief that we can concentrate on? [00:27:43] Speaker 02: There is, Your Honor. [00:27:44] Speaker 02: In our brief and in the appendix, we assign about seven points of error. [00:27:54] Speaker 02: plastic parts were the construed plan construction. [00:27:59] Speaker 02: Pages, appendix 51 through 56, there is a lengthy excerpt of Mr. Kaiser's trial testimony where the district court highlights it, gives us a roadmap for the legal error on the application of the literal infringement analysis. [00:28:17] Speaker 02: He focuses on, as I said, manufacturing tolerances. [00:28:22] Speaker 02: They don't appear any. [00:28:23] Speaker 03: We're not redoing the jury verdict. [00:28:25] Speaker 03: Do you understand? [00:28:26] Speaker 02: No, I understand. [00:28:28] Speaker 02: I'm talking strictly about the court's application of the legal test for literal infringement. [00:28:35] Speaker 02: And if the result stands, if the judgment stands, it's bad for competition. [00:28:45] Speaker 02: It's terrible for my clients in this case. [00:28:48] Speaker 02: And it's bad for the public. [00:28:50] Speaker 02: The court misapplied. [00:28:53] Speaker 02: the literal infringement test. [00:28:54] Speaker 02: Didn't apply at all, as we say in pages. [00:28:58] Speaker 03: Thank you. [00:28:59] Speaker 03: We'll take it all under consideration. [00:29:01] Speaker 03: Thank you, Your Honor. [00:29:02] Speaker 03: All rise. [00:29:03] Speaker 03: The case is under submission.