[00:00:41] Speaker 00: Good morning. [00:00:42] Speaker 00: Please proceed. [00:00:43] Speaker 00: I've got a lot of issues which you can choose to highlight. [00:00:47] Speaker 03: Good morning, and may I please record I'd like to spend my time today discussing essentially two issues, the claim construction issue and the enhanced damage issue. [00:00:55] Speaker 03: So I'm going to start with the claim construction issue, if that's OK with the court. [00:01:00] Speaker 03: The patent claim is not complicated. [00:01:03] Speaker 03: It narrowly claims a coaxial cable. [00:01:09] Speaker 03: connector that clamps and seals the cable using the connector body itself and without a separate sealing or clamping member and in particular the PPC 194 patent claims a cylindrical body that includes a cylindrical sleeve and in practice what happens is a compression ring slides over the sleeve and causes it to deform inwardly and then to clamp and seal the cable and the [00:01:38] Speaker 03: PPC's 940 patent similarly claims a connector body that has a deformable end that deforms in relief. [00:01:46] Speaker 00: And the issue that you're talking about is whether or not there's a unitary piece that's necessarily required. [00:01:52] Speaker 03: Yes. [00:01:52] Speaker 03: It's clear from the patent language itself, the actual claim language, that the cylindrical sleeve, which is deforming in relief, is included in the cylindrical body member. [00:02:07] Speaker 03: Here's where the district court erred. [00:02:09] Speaker 03: The district court erred by adding to this plain claim language a sentence. [00:02:14] Speaker 03: And the district court's added sentence says, quote, the structure can be comprised of more than one piece and is therefore not limited to a single interval or unitary one piece component, end quote. [00:02:28] Speaker 03: language, that sentence doesn't appear anywhere in the claims itself. [00:02:33] Speaker 00: No, well, I recognize that. [00:02:35] Speaker 00: But I think, arguably, the district court did exactly what he or she should have done under, again, 02 micro, where if that was the central issue, division between the parties as to whether or not infringement [00:02:51] Speaker 03: Well, the purpose of claim construction, of course, is to aid in an explanation of technical terms, not to eviscerate claim terms or to expand the scope of the claim. [00:03:00] Speaker 00: So your view is that the court should not have specified whether there is a unitary structure necessitated by the claim language, and that should have just been up for grabs in the trial? [00:03:12] Speaker 03: It's not a programe, Your Honor. [00:03:14] Speaker 03: The claim language is plain. [00:03:16] Speaker 03: The claim language is plain that the cylindrical sleeve has to be included in the cylindrical body member. [00:03:22] Speaker 00: And what the district court did is... So why can't it be two pieces put together? [00:03:25] Speaker 00: Is that what the issue is, where they can take two pieces and put them together as opposed to having one unitary piece only? [00:03:31] Speaker 03: Well, here's why our gripper cannot be a separate cylindrical sleeve. [00:03:35] Speaker 03: It cannot be two pieces. [00:03:37] Speaker 03: It would not perform the other functions [00:03:40] Speaker 03: required by the claim language, and I don't know that I can say it any better than what the Court of International Trade said, and I'm just going to read to you what the Court of International Trade said as to why our separate gripper should not be considered part of the connector body. [00:03:56] Speaker 03: The Court of International Trade says that Corning's gripping ring is irregularly shaped, at least with three different diameters. [00:04:06] Speaker 03: So if it was considered to be part of the connector body, [00:04:09] Speaker 03: the connector body could not have a cylindrical sleeve at the opposite end that is attached to the post. [00:04:16] Speaker 03: And the CIT went on to say that the gripper should not be considered to be part of the connector body because it does not form a bore about the tubular post as was required by element C. And further... What's the binding effect of the CIT decision in this case? [00:04:36] Speaker 03: Well, we have not argued that it's entitled to collateral estoppel or issue preclusion, but it is certainly persuasive. [00:04:44] Speaker 03: The CIT analyzed in a heavily contested proceeding, PPC's 194. [00:04:52] Speaker 02: Did the CIT analyze the same claim terms that are issued here? [00:04:57] Speaker 03: Yes, they did. [00:04:57] Speaker 03: They analyzed the 194 patent claims one and two, the only two claims in the patent. [00:05:02] Speaker 03: It was an adversarial proceeding between Corning and the United States government. [00:05:08] Speaker 03: Evidence was adduced. [00:05:11] Speaker 02: The district court's not obligated to adhere to the CIT decision, correct? [00:05:19] Speaker 03: We did not argue that it has collateral estoppel effect because PPC was not a party technically to the CIT decision. [00:05:27] Speaker 03: although ppc initiated the proceeding by uh... just by causing yes and that's under the c i t rules that's that's not any adversarial position to the intrinsic let's move away from the c i t and tell us what intrinsic record supports your plan sure and we we do that in our free but let me uh... let me summarize it for you first of all the specification itself disparages [00:05:57] Speaker 03: as a shortcoming of the prior art, connectors that use separate ceiling pieces. [00:06:01] Speaker 03: And that appears in the 194 pattern, for example, in column two, lines 20 through 24. [00:06:07] Speaker 03: It's in the appendix at 324. [00:06:11] Speaker 03: So there's a disparagement in the specification itself of using separate ceilings. [00:06:16] Speaker 00: I'm sorry. [00:06:16] Speaker 00: Can you tell us, column two, what lines? [00:06:18] Speaker 03: It was column two, lines 20 through 23, Your Honor. [00:06:22] Speaker 00: This is the O ring. [00:06:24] Speaker 03: Yes. [00:06:24] Speaker 03: As you can see what it says, quote, another shortcoming of known connectors is the need for an O-ring or similar sealing member to prevent moisture from penetrating the end connector between the connector body and the outer sleeve components. [00:06:38] Speaker 00: But your friend's response to that, so we can just sort of get your response, as I understand it, is that the O-ring, whether an O-ring is used, has nothing to do with whether the cylindrical body member must be a unitary structure. [00:06:52] Speaker 00: Well, it has everything to do about it being... I'm sorry. [00:06:55] Speaker 00: And the benefit of avoiding O-rings is accomplished regardless of whether the deformable sleeve is a separate piece. [00:07:01] Speaker 03: I totally disagree because the patentee here told us that this invention, what this invention is all about, the novelty of it is that it clamps and seals the cable with the connector body itself. [00:07:17] Speaker 03: uh... and without using a separate ceiling number and the patented in the specification goes on to disparage as shortcomings of prior are connectors it's a very proud of our connectors that do use separate ceiling numbers and separate overings and o-ring is a separate ceiling number and there are other types of separate ceiling numbers in fact that's exactly what corning did here we use a separate ceiling number it is stuffed into the connecting body and that doesn't go [00:07:45] Speaker 03: over a sleeve or a rear end of the connecting body and deform it innerly, it's stuffed inside. [00:07:52] Speaker 03: And that is exactly the prior art that this patentee is disparaging. [00:07:58] Speaker 03: Now, I'd like to follow up. [00:07:59] Speaker 03: There's a few more examples of the extrinsic evidence that's responsive to your question, Judge Prost. [00:08:04] Speaker 03: So there is a specification. [00:08:08] Speaker 03: There is the patent prosecution history. [00:08:12] Speaker 03: as well where the patentee provided the patent office with a chart, and we've reprinted a part of the chart at page 24 of our brief, but here we see the patentee defining his own claim terms, defining the essential elements of the invention. [00:08:28] Speaker 03: And the chart at page 24 of our brief defines the cylindrical sleeve as, quote, the right portion, end quote, of the cylindrical body member. [00:08:37] Speaker 03: And the chart shows that the patentee represented to the patent office at the cylindrical sleeve is always part of the cylindrical body member. [00:08:46] Speaker 03: It's not a separate piece. [00:08:48] Speaker 03: And so what we have here is specification language prosecution history that is consistent with one event. [00:08:55] Speaker 00: Just explain to me why that statement of prosecution history really addresses whether the overall cylindrical body can be comprised of different pieces put together. [00:09:05] Speaker 00: I'm not making the connection. [00:09:07] Speaker 03: Okay, well, it shows because the patentee always described the invention as a connector body wherein the cylindrical sleeve is included, in other words, a unitary part of the connector body and not separate floating pieces. [00:09:26] Speaker 03: Now, you could conceivably manufacture this connector body with a cylindrical sleeve out of multiple pieces, but you can't have them, as the district court said, unconnected [00:09:36] Speaker 03: non-interval, otherwise they do not meet the, they do not perform the essential functions that are spelled out in the claim language. [00:09:44] Speaker 03: The function being again to have a sleeve that deforms innerly and that defines the bore and that by itself, an integral piece, a one-piece unit that clamps and seals the cable. [00:09:59] Speaker 03: If you have separate pieces floating about, then they do not perform the essential function [00:10:05] Speaker 03: of the invention. [00:10:06] Speaker 03: And one way that might help illustrate that point is if you imagine a water line or sewer line, it's composed of different lengths of pipe. [00:10:22] Speaker 03: To be sure, the line could be manufactured with the pieces separately, pieces welded together or joined together. [00:10:29] Speaker 03: But if they're scattered about the lawn, if they're not connected, then they're not performing the essential function of the invention. [00:10:36] Speaker 03: And that is where this falls apart here. [00:10:38] Speaker 03: Because if you say, well, why can't the gripper be separate from the connector body? [00:10:46] Speaker 03: Then there's no enablement. [00:10:48] Speaker 03: There's no description in the claim as to how it meets all these other functions of defining a bore. [00:10:55] Speaker 03: of having a having a little bit of a body that secured it one of the post. [00:10:59] Speaker 00: Were there validity challenges before the jury here? [00:11:01] Speaker 03: No. [00:11:03] Speaker 03: We're not challenging the validity of the claim. [00:11:08] Speaker 03: But I will tell you that if the district court's construction is sustained, then it reads right on one of the patents that is cited in the [00:11:22] Speaker 03: in the specification, the ZEGDA 577 patent, and we discuss that at pages 29 through 31. [00:11:28] Speaker 03: And what ZEGDA does is it teaches a cable connector that has a separate piece that deforms interlinked to the cable. [00:11:36] Speaker 03: And I'm not citing that to argue that PPC's patents are invalid. [00:11:40] Speaker 03: My point is that PPC's patents should be construed to [00:11:46] Speaker 00: preserve validity and not in a way that's not a firm tenet of our case law. [00:11:52] Speaker 00: Certainly not after Phillips. [00:11:55] Speaker 03: I'm not saying that it's an unavoidable rule. [00:11:59] Speaker 03: I'm saying it is a consideration to be used to be looked at in construing patents. [00:12:05] Speaker 02: Can you address your damages issues real quick? [00:12:08] Speaker 03: Sure. [00:12:09] Speaker 03: I mentioned I want to talk about the enhanced damages. [00:12:14] Speaker 03: that the enhanced damage award must be reversed in our view. [00:12:18] Speaker 03: And I think the genesis of the enhanced damage award was the district court's factually erroneous jury instruction. [00:12:25] Speaker 03: And as you know, because we've talked about it, the Court of International Trade held that [00:12:32] Speaker 03: Corning's accused patents did not infringe claims one and two of PPC's 194 patent. [00:12:38] Speaker 02: When you went from the 204 design to the 205 design, why didn't you obtain an expert opinion letter at that point? [00:12:48] Speaker 03: Well, there was an expert opinion that was induced in the Wisconsin case. [00:12:52] Speaker 03: It was provided, and the expert opinion was that the Corning scrippers were not included in the connector body. [00:12:58] Speaker 03: That expert opinion was provided to PPC. [00:13:01] Speaker 03: And there was no objection. [00:13:03] Speaker 03: So that did all happen in about the 2003 time frame. [00:13:09] Speaker 03: And then we go to trial before the CIT. [00:13:16] Speaker 03: And the CIT held that Corning's grippers did not infringe the 194 patent. [00:13:22] Speaker 03: And here's where the damages went off the rails. [00:13:24] Speaker 03: If I could address your honors damages question, the district court [00:13:29] Speaker 03: instructed the jury that the CIT decision, quote, did not involve the same claim terms or claim definitions that I have supplied you in this case, and went on to say that the issues of infringement before you are different than those in that case, end quote. [00:13:45] Speaker 00: I think I understand your argument. [00:13:47] Speaker 00: That was incorrect. [00:13:48] Speaker 00: That was incorrect. [00:13:50] Speaker 00: And even though he said that you can use it in the willfulness case, if there's a factual assumption that none of the claims corresponded that might affect [00:13:59] Speaker 00: how effectively they consider it in the willfulness thing? [00:14:03] Speaker 00: Do I have your argument? [00:14:04] Speaker 03: Is that how... Essentially, yes. [00:14:06] Speaker 03: The prejudice was manifest. [00:14:08] Speaker 03: The district court effectively told the jury to disregard the CIT decision. [00:14:12] Speaker 03: It's not relevant. [00:14:13] Speaker 02: Effectively told... Didn't they instruct the jury on willfulness with respect to the CIT letter? [00:14:22] Speaker 00: yes i i've read you what was part of the judges uh... instruction on willful that's where the judge instruct but you're saying that that willfulness instruction was insufficient because it was colored and limited by the incorrect reference to the fact that we know about the claims instruction [00:14:39] Speaker 03: I'll put it a little more bluntly. [00:14:41] Speaker 03: I would say it was just factually incorrect. [00:14:43] Speaker 03: The same patent was involved. [00:14:45] Speaker 03: The same claim issues were involved. [00:14:47] Speaker 03: The same accused products were involved. [00:14:49] Speaker 00: But I'm trying to get to accepting that. [00:14:53] Speaker 00: What was the effect of the instruction? [00:14:56] Speaker 00: And I thought your argument was that because even though he said you can consider the willfulness, if the willfulness the jury thought was just about different claims and not these claims, it would have had less of an impact. [00:15:09] Speaker 00: yes yes i think that your problem with that argument though is i'm not sure it's clear for me in the records and maybe you can tell me where it is that that was correctly preserved sure i've got uh... the appendix and nine to six nine to seven where mr well that's your life yes that's a little bell was the trial counsel below and he repeatedly objected to the district courts [00:15:36] Speaker 03: proposed instruction on the CIT and ask the district court to correct it. [00:15:42] Speaker 00: Well, can you tell me where, because I'm looking at one exchange, and he says, I think the same claim terms in claim one, but different construction on those claims. [00:15:51] Speaker 00: I'm wondering if that's what you said. [00:15:53] Speaker 00: So he's questioning the judge. [00:15:55] Speaker 00: And then he says, that's right, but I just, if you want to have an accurate statement of the differences, [00:16:02] Speaker 00: And the judge says, well, I'm happy with what I've done. [00:16:05] Speaker 00: And Mr. Lavelle says, OK. [00:16:09] Speaker 03: And? [00:16:11] Speaker 03: Well, I don't think he was acquiescing in it. [00:16:13] Speaker 03: He fought very hard to. [00:16:15] Speaker 00: Well, why don't you show me, do you have it in the appendix? [00:16:17] Speaker 00: Because, by the way, if there's something beyond this conversation, this exchange, I'm not, I don't know where it is. [00:16:24] Speaker 03: Yeah. [00:16:24] Speaker 03: Well, we've cited in our brief where Mr. Lavelle objects to it. [00:16:28] Speaker 03: He proposes a different instruction. [00:16:31] Speaker 03: And then the judge says, I'm happy with what I've done. [00:16:36] Speaker 03: That's the exchange. [00:16:37] Speaker 03: But Mr. Lovell clearly objects to the court's instruction and, in fact, proposes a different one. [00:16:47] Speaker 00: Well, that was that early on. [00:16:49] Speaker 00: OK, can you show me where that is? [00:16:51] Speaker 03: Yeah, I'm looking for the site right now, but I assure you, Your Honor, that that's what happened. [00:16:57] Speaker 03: Mr. Lavelle didn't. [00:16:58] Speaker 00: Well, I'm just trying to find out what was said when. [00:17:00] Speaker 00: Now, this conversation that I had, this exchange, occurred after the court gave the jury instruction. [00:17:09] Speaker 00: And you did raise an issue about where the claims were the same. [00:17:13] Speaker 00: But it seems like, at least on this exchange, I'm not sure your lawyer pressed hard enough to preserve that argument. [00:17:21] Speaker 00: So I'm wondering if there's anything more. [00:17:24] Speaker 03: I don't know what more would be required. [00:17:26] Speaker 03: He says, Judge, that's wrong. [00:17:28] Speaker 03: He submits an alternative instruction. [00:17:30] Speaker 03: And the district court refuses to give the alternative instruction. [00:17:34] Speaker 00: Where is that? [00:17:34] Speaker 00: OK, so let's just, I'm looking for the record. [00:17:36] Speaker 00: I'm having a hard time finding it. [00:17:40] Speaker 03: Yeah, it's an appendix. [00:17:46] Speaker 03: The discussion starts at appendix 10926 and through appendix 10927. [00:17:54] Speaker 03: And the Court says, so you've reserved your record. [00:18:01] Speaker 03: And he goes on to say, but I'm happy with what I did. [00:18:04] Speaker 03: But we have a whole discussion here about how Mr. Lovell is objecting to the Court's instruction about the CIT decision. [00:18:16] Speaker 03: He tenders a different one. [00:18:17] Speaker 03: And the judge says, well, I'm happy with what I did. [00:18:22] Speaker 03: And you've preserved your record. [00:18:25] Speaker 03: So like at page 1097. [00:18:28] Speaker 00: Yeah, I'm 27. [00:18:31] Speaker 00: When he says, I'm happy with what I've done, Mr. Lavelle says, OK. [00:18:40] Speaker 00: Is that enough? [00:18:41] Speaker 00: I mean, are you saying that that's not an acquiescence? [00:18:44] Speaker 00: I mean, I don't see. [00:18:46] Speaker 00: Anything further in terms of an objection? [00:18:49] Speaker 00: And I'm not sure where he officially offered up an alternative at this point. [00:18:54] Speaker 00: You may have had alternative jury constructions running around earlier in the case. [00:18:58] Speaker 03: Well, Mr. Lavelle's OK was certainly not an acquisition. [00:19:03] Speaker 03: It was certainly not acquiescence. [00:19:07] Speaker 03: Mr. Lavelle had already said that the judge's proposed instruction was wrong. [00:19:13] Speaker 03: We do propose another one. [00:19:14] Speaker 03: And then the judge says, I'm not going to change it. [00:19:18] Speaker 03: You've reserved your record. [00:19:19] Speaker 03: I'm happy with what I've done. [00:19:21] Speaker 03: And former Mr. Lavelle just says, OK, that's not acquiescence. [00:19:26] Speaker 03: You cannot read this record by saying Mr. Lavelle did not vigorously object on behalf of Corning. [00:19:34] Speaker 00: I don't think that's true. [00:19:36] Speaker 00: Before that, the court says, what does it matter? [00:19:39] Speaker 00: that they can't consider the evidence for that purpose on infringement in any event. [00:19:45] Speaker 00: And Mr. Lavelle says that's right, but I just, if you want, have an accurate statement of the differences. [00:19:52] Speaker 00: I mean, I think if Mr. Lavelle had explained what we've been discussing here, like it is prejudicial, Your Honor, because if they don't think [00:20:03] Speaker 00: the claims correspond at all, then on the willfulness application, they're not going to give a lot of weight to that in connection with the willfulness. [00:20:13] Speaker 00: And you agree with me, right, that that's what the impact of this was. [00:20:18] Speaker 03: That's one of the impacts. [00:20:19] Speaker 00: But Mr. Lavelle didn't make that argument to the court, did he? [00:20:22] Speaker 00: Or if he did elsewhere, I'm not finding it. [00:20:24] Speaker 03: Well, he makes the argument that the instruction that the judge is proposing is incorrect. [00:20:30] Speaker 03: He presents another one. [00:20:31] Speaker 00: and the judge says i've made up my mind you've reserved your address says why would it matter and he doesn't give reason why right about that where you're looking at right now you're not looking at ten nine two six ten nine two six line twenty one well the whole [00:20:59] Speaker 03: Mr. Lovell's response is not fulsome. [00:21:04] Speaker 03: He says it matters. [00:21:06] Speaker 03: I think he's trying to say you want to have an accurate statement of the differences. [00:21:10] Speaker 03: That's what he says. [00:21:12] Speaker 03: And to be sure, it's not all that fulsome, but it is important. [00:21:17] Speaker 03: I don't think it can be contested to have a factually correct instruction to the jury. [00:21:22] Speaker 03: And this instruction was not factually correct. [00:21:26] Speaker 03: And Mr. Lovell was objecting to it. [00:21:28] Speaker 03: So I don't think it's fair to read a waiver into Mr. Lavelle's statement that you want to have an accurate statement of the differences. [00:21:39] Speaker 03: It seems obvious why you want to have an accurate statement of the differences, because you don't want to mislead the jury. [00:21:44] Speaker 03: And this jury would basically mislead. [00:21:47] Speaker 03: Worse yet, it was basically instructed [00:21:49] Speaker 03: that disregard the CIT decision. [00:21:52] Speaker 03: And that the prejudice that Corning was manifest, our witnesses are relying upon it. [00:21:57] Speaker 03: It impaired the credibility of counsel that argued it. [00:22:00] Speaker 03: So I think that the prejudice is manifest. [00:22:05] Speaker 03: And I think under this record, it's not fair to say that there was any waiver. [00:22:09] Speaker 00: OK. [00:22:09] Speaker 00: Well, we're way beyond our time. [00:22:11] Speaker 00: And that's more my fault than yours. [00:22:12] Speaker 00: But why don't you sit down, and we'll restore a couple minutes if we'd like to. [00:22:16] Speaker 03: OK. [00:22:16] Speaker 03: We'll do that. [00:22:17] Speaker 03: Thank you very much. [00:22:27] Speaker 01: Good morning. [00:22:33] Speaker 01: May it please the court. [00:22:36] Speaker 01: This really isn't a claim construction case. [00:22:40] Speaker 01: If you read Corning's reply brief on page seven, they say that the structure can be comprised of more than one piece. [00:22:50] Speaker 01: They say specifically, Corning does not contend that a cylindrical body member [00:22:54] Speaker 01: could not be made up of separate components joined together in a single unit. [00:22:59] Speaker 01: On page seven of the reply brief? [00:23:03] Speaker 01: Corning does not contend that a cylindrical body member could not be made up of separate components joined together in a single unit. [00:23:10] Speaker 01: It could. [00:23:12] Speaker 01: And the reason they said that is their own expert had said that in his deposition. [00:23:16] Speaker 01: He said that the patent doesn't exclude multiple pieces. [00:23:20] Speaker 01: And Corning repeated that in their closing argument saying, [00:23:25] Speaker 01: We agree. [00:23:26] Speaker 00: Well, they go on, so can you respond to what they say? [00:23:30] Speaker 00: Because they go on to characterize what your argument is. [00:23:33] Speaker 01: Yeah, I'd be happy to. [00:23:34] Speaker 01: Now, focusing on what the claim construction actually said, the portion that the court added, the court simply said the structure can be comprised of more than one piece and therefore is not limited to a single integral or unitary one-piece component. [00:23:51] Speaker 01: That's the construction and there's nothing wrong with that because it is supported by [00:23:55] Speaker 01: the intrinsic record. [00:23:56] Speaker 01: In the intrinsic record, first of all, there's nothing limiting, there's no disclaimer, there's nothing in the prosecution history that says we're disclaiming anything other than a unitary piece. [00:24:07] Speaker 01: But if you look at the specification, I think the most instructive point is at column 6, line 47, where the specification talks about a first body member that includes a connector body member or a cylindrical body member and a post member. [00:24:24] Speaker 01: And then it goes on to say, preferably the connector body and the post member are separate components. [00:24:30] Speaker 01: So it's using that language of a body member to describe something that has separate components. [00:24:36] Speaker 01: That's the opposite of a disclaimer that would say the connector body or the cylindrical body member has to be a unitary construction. [00:24:45] Speaker 01: So there's nothing more than the ordinary meaning that is needed here. [00:24:50] Speaker 01: The district court [00:24:51] Speaker 02: So I see that the court says in its opinion that in this case there's neither ambiguity in the terms nor dispute as to the scope of the claim. [00:25:01] Speaker 02: That's right. [00:25:02] Speaker 02: Was there an actual dispute as to the scope of the claim? [00:25:06] Speaker 01: As it turned out, there was this two-piece, one-piece dispute. [00:25:10] Speaker 01: The court originally said the plain language here, no further construction is necessary. [00:25:15] Speaker 01: And then it became apparent that there was a dispute over the two-piece or one-piece. [00:25:20] Speaker 01: And that Corning intended to argue to the jury that the claims were limited to one piece. [00:25:25] Speaker 01: And so the court added that. [00:25:27] Speaker 01: So at the time, there was just plain language. [00:25:31] Speaker 01: But the court added this particular sentence saying there's nothing limiting to one piece structure. [00:25:38] Speaker 01: So really, this is a case about infringement. [00:25:41] Speaker 01: And the standard of review there is substantial evidence. [00:25:44] Speaker 01: And Corning may argue that their two pieces, when put together, [00:25:49] Speaker 01: don't make a body member, but there's a lot of evidence to the contrary. [00:25:53] Speaker 00: Let me move you to the willfulness and the jury instruction question. [00:25:59] Speaker 00: Whereas clearly, nobody is arguing that the district court was compelled to follow what the CIT did, or that the jury would necessarily have to follow it. [00:26:10] Speaker 00: But it might be appropriate at some level. [00:26:13] Speaker 00: And the jury is entitled to consider that. [00:26:16] Speaker 00: But the jury instruction was wrong. [00:26:18] Speaker 00: I mean, there's a big difference, is there not, between calling out, yes, there's this related CIT opinion, but it dealt with entirely different claims, versus what is correct, which is that there was a significant, not overlap, between the claims here and the claims there. [00:26:35] Speaker 01: Your Honor, I think we have to look at what the court was trying to do and make sure that the jury was not using the CIT decision to decide infringement. [00:26:46] Speaker 01: So the court says, you can't use it for infringement, but you can use it for willful use. [00:26:51] Speaker 00: But you're not dealing with my question, is that they can't use it for infringement. [00:26:56] Speaker 00: Right. [00:26:57] Speaker 00: But one, do you think that that's true, that it couldn't have been probative at all? [00:27:03] Speaker 00: He led it into evidence, right? [00:27:05] Speaker 00: He did. [00:27:06] Speaker 00: He did. [00:27:06] Speaker 00: That's one aspect of it. [00:27:08] Speaker 00: But the other aspect that's more troubling to me is that clearly we could use the CIT, the jury could use the CIT decision, for willfulness. [00:27:17] Speaker 00: Yes. [00:27:17] Speaker 00: But is there not, if you're a juror, I'm a juror, is that there not a big difference between using a decision, which you're supposed to use for willfulness, if all of the claims were completely different in the decision versus if some of the claims overlap? [00:27:32] Speaker 00: Right. [00:27:33] Speaker 01: Well, first of all, the court did not tell the jury [00:27:37] Speaker 01: the claims were all completely different. [00:27:39] Speaker 01: What the court said was that the CIT case did not involve the same claim terms or claim definitions. [00:27:50] Speaker 01: There was testimony from Corning's expert that the CIT decision involved one of the same claims, claim one. [00:27:57] Speaker 01: So it's not that there was no overlap between claims. [00:28:00] Speaker 01: It was claim terms or claim definitions. [00:28:03] Speaker 01: So what does that mean? [00:28:05] Speaker 01: Well, if you go back to earlier in the case, [00:28:07] Speaker 01: in the appendix at 10074, the district court had already instructed the jury to say the CIT case did not involve the same claim terms as the case before you, namely the claim definitions that I've supplied you in the glossary. [00:28:28] Speaker 01: So he's telling them it had a different claim construction, not that there was absolutely no overlap. [00:28:35] Speaker 01: Now we get to the [00:28:36] Speaker 01: the actual objection to the instruction, it's ambiguous. [00:28:41] Speaker 01: I'm not sure whether it was preserved or not. [00:28:45] Speaker 01: The court did say, you reserved your record. [00:28:48] Speaker 01: We haven't argued that it wasn't preserved, but I certainly think the court here could find that it was not because of the way the dialogue took place. [00:28:56] Speaker 00: So if there was a... Did they propose in this dialogue, did they propose an actual alternative [00:29:05] Speaker 01: I'm not aware of that, Your Honor. [00:29:07] Speaker 01: Certainly on those pages 10, 9, 26, and 27, I didn't see that. [00:29:12] Speaker 01: And again, to go back to what I said at the beginning of that, the Court's intention here was to make sure the jury didn't confuse infringement and willfulness. [00:29:22] Speaker 01: And the jury was not to be considering the CIT decision for infringement because there was a different claim construction. [00:29:30] Speaker 01: And that sentence [00:29:32] Speaker 01: in the instruction that it didn't involve the same claim terms or claim definitions, what the court was saying, use my claim constructions, not what was in the other case. [00:29:41] Speaker 01: There are other reasons, though, that the CIT decision wasn't particularly relevant. [00:29:45] Speaker 01: And so this is likely harmless error. [00:29:49] Speaker 01: One is the timing. [00:29:51] Speaker 01: It was eight years after Corning started infringing. [00:29:55] Speaker 01: They had gone back to the infringing design eight years before that. [00:30:00] Speaker 01: there was plenty of evidence for the jury to find concealment, copying, all the other factors that were presented. [00:30:08] Speaker 01: And the CIT decision, to the extent it had any relevance, it wasn't something that all of a sudden absolved Corning. [00:30:17] Speaker 02: Their own experts... Something that's kind of always bothered me about the case is probably not germane to the resolution here, but why did it take you all so long to [00:30:28] Speaker 02: find out that your main competitor was infringing? [00:30:31] Speaker 01: Well, as the court found when it addressed the equitable estoppel, that PPC didn't know. [00:30:40] Speaker 01: They had blessed the original design and didn't know that Corning had gone back to the same design, or the same inward taper of the compression ring. [00:30:54] Speaker 01: They did do performance testing. [00:30:57] Speaker 01: But they hadn't actually taken it and cut it open to see if it had gone back to being an infringing design. [00:31:02] Speaker 01: And one of the reasons was... But you don't have to cut open the cable. [00:31:05] Speaker 01: I mean, that's not what we're talking about. [00:31:07] Speaker 01: We're talking about the connector, right? [00:31:08] Speaker 01: Well, yes. [00:31:08] Speaker 01: But the way that they could actually do it, you have to dip it in epoxy, slice it in half. [00:31:14] Speaker 01: These things are pretty small. [00:31:15] Speaker 01: And you don't necessarily see that unless you do the analysis. [00:31:19] Speaker 01: On top of that, Corning's catalog still had the same drawing that showed the previous version. [00:31:25] Speaker 01: They hadn't changed it. [00:31:27] Speaker 01: They hadn't changed the model number. [00:31:28] Speaker 01: They hadn't changed the part number. [00:31:31] Speaker 01: And there's a finding by the district court that this wasn't enough to say that PPC should have known about the infringement. [00:31:38] Speaker 00: So how did you ultimately discover? [00:31:41] Speaker 01: They came out with a new connector. [00:31:43] Speaker 01: And PPC looked at that one. [00:31:45] Speaker 01: And then they saw that Corning had gone back to the tapered compression ring. [00:31:51] Speaker 01: And so they went and looked at the other ones at the same time. [00:31:54] Speaker 01: That's what tipped them off. [00:31:57] Speaker 01: The enhanced damages here, that's an abusive discretion standard. [00:32:02] Speaker 01: The court went through the read factors in pretty good detail, and the court exercised its discretion. [00:32:09] Speaker 01: It only doubled the damages here, so it's not at the polar end, as the court said, and that was certainly within the court's discretion. [00:32:16] Speaker 00: What about your friend's suggestion that at least they should have prorated the damages? [00:32:21] Speaker 00: Are you aware of any case laws given with that? [00:32:24] Speaker 01: I'm not aware of any [00:32:26] Speaker 01: more recent case law where there's been pro-rating. [00:32:29] Speaker 01: I believe there may have been some in the past. [00:32:31] Speaker 01: But that's essentially what the district court already did here by awarding double damages, was to take that into account. [00:32:38] Speaker 01: The timing, the CIT decision, which came eight years after they were already infringing, once the suit was filed, Corning continued, didn't change until after the jury heard it. [00:32:49] Speaker 02: Who alerted Customs that there was imports of infringing devices? [00:32:53] Speaker 01: I believe PPC initiated that. [00:32:57] Speaker 00: But then that's normal procedure. [00:32:58] Speaker 00: That is normal procedure, right. [00:33:00] Speaker 00: But you can't participate in the proceeding. [00:33:02] Speaker 01: We were not permitted to participate. [00:33:03] Speaker 02: I understand that it's between customs and... I mean, you had to have done... At that point, did you... Is this where this whole litigation... Yes, that's right. [00:33:16] Speaker 01: The suit was filed and... Right. [00:33:23] Speaker 01: Any further questions? [00:33:25] Speaker 01: Thank you. [00:33:26] Speaker 01: Thank you very much. [00:33:30] Speaker 03: Judge Frost, I found the answer to your question about Cornyn's jury instruction. [00:33:35] Speaker 03: We recited in full at the bottom of page 51 of our brief, but it appears in the appendix at pages 1879 through 1883. [00:33:46] Speaker 03: So there was a jury instruction conference, and both parties submitted competing instructions [00:33:56] Speaker 03: Neither party proposed an instruction that the CIT litigation did not involve the same claim terms. [00:34:02] Speaker 03: The judge came up with that on his own. [00:34:05] Speaker 03: But you can see at the bottom of page 51 of our brief exactly what we proposed. [00:34:11] Speaker 03: And neither we nor anybody else proposed an instruction telling the jury that the infringement issues were different or that the claim terms were different. [00:34:23] Speaker 03: And when the judge insisted on doing that, you can see that Mr. Lovell is objecting. [00:34:30] Speaker 03: So we did an objection, and we submitted an alternative instruction. [00:34:35] Speaker 03: And now I also want to close by just pointing out that this one-piece, two-piece dichotomy is really a false dichotomy. [00:34:45] Speaker 03: As I said, you can have a water line with multiple pieces, but it doesn't work unless they're joined in a single, integral unit. [00:34:52] Speaker 03: And here, you can't have a separate arc gripper, cannot be the cylindrical body member because it's not joined with the connecting body. [00:35:04] Speaker 03: It moves independently. [00:35:06] Speaker 03: It moves axially. [00:35:08] Speaker 03: It's inserted under the connector body, not as claimed in the patent, over it to deform the connector body independently or inwardly. [00:35:17] Speaker 03: It's a different invention. [00:35:19] Speaker 03: This inventor claimed a gripping and sealing by a single connector body, not by a bunch of unrelated pieces. [00:35:29] Speaker 03: And as I said in my opening remarks, if you have a bunch of unrelated pieces, if you have a gripper that's not part and parcel of the cylindrical body member, then you've just written out the rest of the claim limitations. [00:35:44] Speaker 03: Claim one. [00:35:45] Speaker 03: Limitation C, the cylindrical body member not only has to include the cylindrical sleeve, it's got to be a cylinder that forms a bore. [00:35:55] Speaker 03: It has to be connected at one end of the post. [00:35:58] Speaker 03: And our gripper doesn't have that. [00:36:01] Speaker 03: And under the judge's claim construction, you've eviscerated all of those additional claim elements. [00:36:07] Speaker 03: You've just written them out. [00:36:08] Speaker 03: And that's the problem with the judge's extra sentence that he added, where he said, [00:36:13] Speaker 03: doesn't have to be an interval one-piece body. [00:36:16] Speaker 03: The problem with that is that you can have disconnected pieces that no longer meet the claim limitations here. [00:36:24] Speaker 03: And that's exactly what the CIT held. [00:36:29] Speaker 03: And I would commend you to look at the CIT decision. [00:36:32] Speaker 03: It's published at 896 Federal Sub at 1281. [00:36:38] Speaker 03: And if you look at the decision [00:36:42] Speaker 03: at uh... twelve eighty one you can see the c i t explained in great detail why you cannot consider our separate ripper to be part of the connecting body and they say for all the reasons i've cited here because then you've just disconnected the thing in a non-functional way