[00:01:00] Speaker 02: All right, our next case for today is 2018-1606, Aton International versus Uniclass Technologies. [00:01:09] Speaker 02: Mr. Sandel, please proceed. [00:01:20] Speaker 04: Good morning. [00:01:20] Speaker 04: You may please the court. [00:01:21] Speaker 04: My name is Lawrence Sandel, and I'm here on behalf of Appellant 810. [00:01:25] Speaker 04: With my 10 minutes of opening argument time, I first plan to address the clear deficiencies [00:01:30] Speaker 04: and uniclasses in validity proofs, then I will address the undisputed record evidence and reasonable common meanings of claim terms that compel J. Moll of infringement. [00:01:40] Speaker 05: As I understand the record, the district court held that for a party to say they've adequately raised a claim construction issue by implying it for the first time in a Rule 50A motion on the final day of an 8-day jury trial is unpersuasive. [00:01:58] Speaker 05: Why did A10 wait so long to move for a post-testifying doubt bearer motion? [00:02:04] Speaker 04: Well, one reason, Your Honor, was because it was a little bit unclear what the opposing expert was arguing. [00:02:11] Speaker 04: And we needed to, we couldn't really tell them, we clarified that on cross-examination. [00:02:16] Speaker 04: In hindsight, of course, it probably should have been done earlier. [00:02:19] Speaker 04: But I'd also make the note that it certainly was a claim construction issue. [00:02:27] Speaker 04: in that we are asserting it's improper to assert that claim should be construed one way for invalidity and the other way for infringement, but we were not asking the court, this was not an O2 micro issue, we were not asking the court to reconstrue. [00:02:41] Speaker 04: This is more of, I guess, what you could call a phingin issue, where we're asking, well, not that part in particular, but we were asking the court to say, hey, it's confusing to present dueling claim constructions to the jury [00:02:54] Speaker 04: the jury will be confused by this unless they're instructed otherwise. [00:02:58] Speaker 05: Did A10 or UNICLAS request that the district court construe claims one's disconnecting or detecting terms? [00:03:07] Speaker 04: For the disconnect, yes. [00:03:08] Speaker 04: They did in ways. [00:03:10] Speaker 05: Where in the record? [00:03:12] Speaker 04: That is, give me one. [00:03:20] Speaker 05: And if it helps you, I'm looking at 1878. [00:03:22] Speaker 05: That's actually where I was going. [00:03:26] Speaker 04: So in that area, A10 saw a plain and ordinary meaning for that. [00:03:35] Speaker 04: And we certainly do not change that for this larger term of disconnecting the input device from the first host, and that's 1878 at the bottom. [00:03:47] Speaker 04: Uniclass there, looking at 1879, right under where the claim is listed, [00:03:54] Speaker 04: The court said the parties disagree on the correct instruction. [00:03:57] Speaker 04: UNICLAS urges this court to adopt the Plain and Normandy meeting. [00:04:04] Speaker 04: UNICLAS urges this court to conclude the term as breaking the direct communication pathway between the input device and the host, and then establishing a direct communication pathway between the host and the emulator. [00:04:18] Speaker 04: Now, this is the same argument that was the so-called [00:04:23] Speaker 04: claim construction or interpretation that Uniclass's expert made. [00:04:28] Speaker 04: Mr. Dysmelak? [00:04:31] Speaker 04: Dysmelak, yes. [00:04:31] Speaker 04: Okay. [00:04:32] Speaker 04: And so he didn't use the direct communication pathway language when he was making his claim interpretation or claim construction argument, but he called it an active connection. [00:04:43] Speaker 05: But Dysmelak, okay, so Dysmelak explains his argument that a person of skill in the art would understand [00:04:49] Speaker 05: occupation to refer to physical occupation. [00:04:53] Speaker 05: And then he says, the PrimaT device never looks at whether there's actually a cable in the port, simply waits for a message from the other device. [00:05:03] Speaker 05: That's fact testimony. [00:05:05] Speaker 04: That is fact testimony. [00:05:06] Speaker 04: And we do not dispute that. [00:05:07] Speaker 04: We actually take that as an admission, your honor. [00:05:11] Speaker 05: The question here is, if we are... So, I mean, I read you as arguing [00:05:19] Speaker 05: that that's testimony towards construction. [00:05:22] Speaker 05: Did I misunderstand? [00:05:23] Speaker 04: I believe you did, at least that part of it. [00:05:25] Speaker 04: I think accurately says, but that's not what the claim requires. [00:05:28] Speaker 04: So the claim requires detecting occupation, perhaps it's physical occupation. [00:05:32] Speaker 04: We can go with that because obviously we're on J-Mall and our burden is a little bit higher here. [00:05:37] Speaker 05: Let me ask you this. [00:05:39] Speaker 05: Does ATEN challenge that the combined CS1762 device and its accompanying user manual together [00:05:48] Speaker 05: practice all the elements of the representative claims, leaving aside dates? [00:05:52] Speaker 04: On appeal, we don't. [00:05:53] Speaker 04: We've made no arguments on that on appeal. [00:05:57] Speaker 04: On those, we are just looking at the date. [00:05:59] Speaker 05: Am I correct that the date stamp device manual is not of record? [00:06:03] Speaker 05: I couldn't find it. [00:06:05] Speaker 04: Device manual, I'd have to check. [00:06:09] Speaker 04: I believe that... Can you give me a second? [00:06:13] Speaker 04: Well, maybe when you come back up. [00:06:14] Speaker 04: I'd like to see it. [00:06:16] Speaker 04: As far as we're talking about, there are really three instrumentalities here. [00:06:19] Speaker 04: The first is the device itself. [00:06:21] Speaker 04: Everybody agrees that's 2009. [00:06:21] Speaker 04: The manual itself, I believe, actually would be prior art. [00:06:26] Speaker 04: So the real question is... I want the date stamped. [00:06:31] Speaker 04: The date stamped of the manual or the firm? [00:06:33] Speaker 04: The manual. [00:06:34] Speaker 04: The device manual. [00:06:36] Speaker 04: OK. [00:06:38] Speaker 00: I don't believe that we are... Maybe your opposing counsel can... [00:06:41] Speaker 00: But the reason you have a third piece is that I gather it's undisputed that there's at least one claim element not taught by that manual. [00:06:49] Speaker 04: That's correct. [00:06:50] Speaker 00: So it has to be found somewhere else, and it's found in the firmware, and the firmware is 2006, but we don't know if it's before. [00:06:56] Speaker 00: We don't know. [00:06:57] Speaker 04: And the burden on that is squarely on uniclass to the society. [00:07:03] Speaker 04: And that's why we believe that the district court really erred by saying, hey, well, it was your device. [00:07:09] Speaker 04: It's your responsibility to tell us where it was from. [00:07:10] Speaker 04: But at the end of the day- Why is that a square error? [00:07:14] Speaker 04: Because it shifts the burden directly. [00:07:17] Speaker 04: It shifts the burden- It's your device. [00:07:21] Speaker 04: It's our device. [00:07:22] Speaker 04: True. [00:07:22] Speaker 04: But- You know when. [00:07:24] Speaker 04: Actually, at this point, we do not know when. [00:07:26] Speaker 04: I mean, this was, I believe it was 2006. [00:07:29] Speaker 04: The records are lost. [00:07:32] Speaker 04: They were in your control? [00:07:34] Speaker 04: I'm unaware. [00:07:35] Speaker 04: Either way. [00:07:37] Speaker 04: Really? [00:07:38] Speaker 04: I have not seen the data. [00:07:41] Speaker 04: OK, let me put it this way. [00:07:43] Speaker 05: Isn't there an evidentiary inference? [00:07:48] Speaker 05: You see what I'm saying? [00:07:49] Speaker 04: I know. [00:07:49] Speaker 04: I do see what you're saying. [00:07:50] Speaker 04: And I do believe this is what brought the judge, what went this way. [00:07:55] Speaker 01: Is an evidentiary inference sufficient to prove something by clearing convincing evidence? [00:08:02] Speaker 04: I mean, in certain circumstances, it could be. [00:08:06] Speaker 04: This was an old device. [00:08:08] Speaker 04: This was an old device. [00:08:11] Speaker 04: The records of that are gone. [00:08:12] Speaker 04: The date was not developed on discovery. [00:08:16] Speaker 04: This was not somewhere where Uniclass asked for an adverse inference because we asked them and then we didn't have this information. [00:08:23] Speaker 04: This was a thing where there was no corroboration. [00:08:29] Speaker 04: They just decided that it was available on this date. [00:08:31] Speaker 00: What's the story on this? [00:08:34] Speaker 00: Chinese document referenced as exhibit 1758, I gather, not admitted into evidence. [00:08:42] Speaker 04: Yeah, so my recollection is that there was theoretically some evidence of the date that was never submitted into the record that was held back. [00:08:51] Speaker 04: Our objection to that document was that it was in Chinese. [00:08:55] Speaker 04: I do not speak Chinese myself. [00:08:57] Speaker 04: And I don't know if it was in it. [00:09:00] Speaker 04: Theoretically, that might have been a corroborating document. [00:09:03] Speaker 04: We don't know that it's outside of the record, and I believe it's improper for the court to consider that. [00:09:07] Speaker 04: And it's still not even in the appendix, notwithstanding that it wasn't before the jury. [00:09:12] Speaker 04: It wasn't before the lower court at all. [00:09:14] Speaker 04: And it's really a part of Uniclass's burden to prove that it was actually predating. [00:09:21] Speaker 04: And that element of proof was missing, and there wasn't any asking for any sort of adverse influence. [00:09:25] Speaker 02: Well, when you say it could have been corroborating, I mean, corroborating of what? [00:09:29] Speaker 02: You've got a witness that testified [00:09:31] Speaker 02: that this firmware was created in 2006. [00:09:35] Speaker 02: He couldn't identify a month. [00:09:38] Speaker 02: I mean, the cross-examination blew my mind. [00:09:40] Speaker 02: I thought it was actually quite a bold choice given that he hadn't given a date in direct to get to ask him that series of questions, which could have allowed him then to correct his earlier mistake, but he didn't. [00:09:52] Speaker 02: He didn't correct his earlier mistake. [00:09:54] Speaker 02: Yes or no. [00:09:55] Speaker 02: Do you know what month? [00:09:55] Speaker 02: Nope. [00:09:56] Speaker 02: Yes or no. [00:09:57] Speaker 02: Do you know what day? [00:09:57] Speaker 02: Nope. [00:09:58] Speaker 02: And so there it stood after cross-examination, and I was baffled on redirect how they didn't stand up and rehabilitate him and have him provide a month or a day if he knew of one. [00:10:09] Speaker 02: I mean, because you guys had telegraphed it really clear after that cross-examination that you were challenging whether or not this was prior art, and yet he didn't do it. [00:10:18] Speaker 02: So to be honest, I think that you sold your case a little short when you say maybe this document could have corroborated. [00:10:24] Speaker 02: There was no testimony to corroborate. [00:10:26] Speaker 04: That's true. [00:10:28] Speaker 04: And I appreciate you saying that. [00:10:30] Speaker 04: And we did emphasize that point for the district judge, that the date was just simply not there. [00:10:38] Speaker 02: But going back to infringement, if you don't mind, I'd like to ask you where it is that you raised with the lower court a problem with Mr. Tell me how I say his name again. [00:10:49] Speaker 02: Desmellick. [00:10:49] Speaker 02: Desmellick's testimony vis-a-vis direct or indirect connections [00:10:56] Speaker 02: Where did you raise any sort of problem with the district court about that on infringement? [00:11:03] Speaker 04: Talking specifically about that, we did not raise that when it comes to the interpretation of the claim, if we put aside this whole dual and claim construction problem where you're telling the jury there are two constructions, there's actually no need. [00:11:17] Speaker 02: Well, why would you put aside that? [00:11:19] Speaker 02: That's improper. [00:11:20] Speaker 04: Well, we do believe it's improper. [00:11:21] Speaker 04: Absolutely. [00:11:21] Speaker 02: But you didn't object to it. [00:11:22] Speaker 02: So there's an O2 micro problem with that. [00:11:25] Speaker 04: Well, it's not too microproblemy for asking the court. [00:11:29] Speaker 04: If it's not too microproblemy for asking... See, here's my problem. [00:11:32] Speaker 02: My problem is you have a scenario here, which as well as you did on anticipation, you did equally poorly on infringement. [00:11:37] Speaker 02: I'm just going to be blunt with you. [00:11:39] Speaker 02: You have a scenario in which... [00:11:41] Speaker 02: You have what are clearly dueling claim constructions being argued for validity and infringement. [00:11:47] Speaker 02: You've got an expert on the other side going through a spec and prosecution history. [00:11:51] Speaker 02: I fell off my chair when I was reading all of that because it's completely improper, but you allowed all of that to go to the jury. [00:11:58] Speaker 02: Markman says that should all be done by the judge. [00:12:00] Speaker 02: What the plain and ordinary meaning is should be decided by the judge. [00:12:03] Speaker 02: It may be a fact question, but it should be decided by the judge. [00:12:05] Speaker 02: But you didn't object to it. [00:12:07] Speaker 02: You allowed it to go to the jury. [00:12:09] Speaker 02: And now that you lost the jury verdict, you're complaining about the fact that it happened. [00:12:13] Speaker 02: And that's the problem for me is that you don't get to do that. [00:12:16] Speaker 02: The judge is exactly right. [00:12:18] Speaker 02: You never raise those objections at any point in time, which would have allowed him to avoid this mistake, which is dueling claim constructions being presented to a jury and a jury deciding them. [00:12:28] Speaker 04: Your Honor, I see the dueling claim construction problem mostly in learning today, the new trial request. [00:12:34] Speaker 04: But when it comes to JMAW, and this is where we believe that Fingen is very strong, is there still must be some substantial evidence underlying infringement. [00:12:44] Speaker 02: And if you look at... Yes, but the problem for you is the claim construction was plain and ordinary meaning. [00:12:50] Speaker 02: Yes. [00:12:50] Speaker 02: And your argument is that his testimony doesn't comport with what the plain and ordinary meaning should be. [00:12:56] Speaker 02: And what you acknowledge is there's apparently two different interpretations or understandings of the plain and ordinary meaning, and your real issue is [00:13:03] Speaker 02: The district court said, when they rejected Uniclass's claim construction at the hearing, that they're trying to insert the word direct in there and that the plain and ordinary meaning should be broader than that. [00:13:12] Speaker 02: Problem is, there was no instruction given to the jury that the plain and ordinary meaning of connected is broader than just a direct connection. [00:13:19] Speaker 02: And you knew that after the testimony. [00:13:22] Speaker 02: You wrote it up very well for us on appeal, but you didn't object to it or present it to the court. [00:13:27] Speaker 02: And so my problem is, hey, I think you're probably right on everything you're saying. [00:13:31] Speaker 02: But you didn't preserve it below in a way that presents it to us on appeal. [00:13:36] Speaker 02: That's my problem with your infringement argument. [00:13:39] Speaker 04: I guess my response, again, with Your Honor, would be when it comes to the dual-incline construction, I think that's one thing. [00:13:45] Speaker 04: And on the other side, if we're just looking at J-Mall, there's no obligation necessarily to object to an expert giving an interpretation that we believe is unreasonable. [00:13:57] Speaker 04: There's really no basis for us to object during trial. [00:14:01] Speaker 04: their expert is saying that this is a common meaning, and we think that's unreasonable. [00:14:06] Speaker 04: It's a common meaning. [00:14:06] Speaker 04: We can't stand up in court and say, hey, that is not a common meaning. [00:14:10] Speaker 02: But actually, you can. [00:14:12] Speaker 02: You can daubed him. [00:14:14] Speaker 02: You can go to the court and say, this is an issue of claim interpretation that they're trying to present fact expert testimony or expert opinion on, and that that's not the role of the expert that has to go to the court. [00:14:26] Speaker 02: You can and should. [00:14:27] Speaker 02: I think that's actually the only way [00:14:29] Speaker 02: to do what you're seeking to do. [00:14:31] Speaker 02: You're into your rebuttal time. [00:14:32] Speaker 02: Let me let you save it, because I don't want you to not have any rebuttal time after the argue. [00:14:41] Speaker 02: Thank you. [00:14:41] Speaker 02: All right. [00:14:41] Speaker 02: Mr. Pia, please proceed. [00:14:43] Speaker 03: Thank you. [00:14:43] Speaker 03: May it please the court. [00:14:44] Speaker 03: My name is Joseph Pia, and I represent the Appellees. [00:14:48] Speaker 03: Let me jump into the CS1762 device and speak to you for a minute about corroboration. [00:14:55] Speaker 03: The big question is whether or not this firmware [00:14:58] Speaker 03: dates back to before the critical date. [00:15:00] Speaker 03: And there's no question that Mr. Desmellek knew what the critical date was and testified as to that. [00:15:07] Speaker 02: Where did he do that? [00:15:08] Speaker 03: Show me in the appendix. [00:15:10] Speaker 03: He did that in appendix 9302 through 9303. [00:15:15] Speaker 02: 9302. [00:15:16] Speaker 02: So where does it say on 9302 that he understood that the critical date was July 24? [00:15:21] Speaker 03: It says it between lines 17622. [00:15:24] Speaker 02: I'm sorry, I don't have any lines 17622. [00:15:27] Speaker 03: Oh, sorry. [00:15:28] Speaker 03: Let me look at this. [00:15:29] Speaker 02: I'm on page 9301, I think. [00:15:31] Speaker 02: Is that what you just directed me to? [00:15:33] Speaker 02: 9302. [00:15:35] Speaker 02: Okay. [00:15:38] Speaker 00: Bottom carryover. [00:15:42] Speaker 02: I have it now. [00:15:54] Speaker 03: So if we look at the bottom of the page, line 22, through the next page, line 3. [00:16:00] Speaker 02: It indicates he understands the critical date. [00:16:02] Speaker 02: Yes, got it. [00:16:03] Speaker 03: He knows exactly the critical date. [00:16:05] Speaker 02: Yes. [00:16:07] Speaker 02: And then where did he testify that this firmware pre-existed that critical date? [00:16:13] Speaker 03: So in his testimony, at appendix 9313, he is referring to his demonstrative exhibit. [00:16:22] Speaker 03: And he takes some great pains to say, [00:16:25] Speaker 02: I don't see any great pains, but perhaps that's just attorney embellishment and I'll overlook it. [00:16:30] Speaker 02: Do you want to tell me what he says? [00:16:31] Speaker 03: Quote, on the right-hand side is a screenshot from a test tool. [00:16:35] Speaker 03: I skipped a couple words there. [00:16:38] Speaker 03: A test tool running on the PC, which identifies information about connected USB devices. [00:16:44] Speaker 03: In this case, the USB device that's connected has identified itself with the vendor ID that corresponds to A10 International. [00:16:52] Speaker 03: It says the manufacturer is A10 Advanced Tech Incorporated, and the product is CS1762 with a version 1.4.132. [00:17:01] Speaker 03: That's the firmware version being reported by the device. [00:17:05] Speaker 03: I then looked on the Wayback Machine to find when that firmware update came out, and the last time it was changed, and that was in 2006. [00:17:12] Speaker 03: So this firmware is Prior Art firmware operating on this. [00:17:17] Speaker 02: Is everything in 2006 Prior Art? [00:17:20] Speaker 02: What's that? [00:17:21] Speaker 02: Is everything in 2006 prior art? [00:17:23] Speaker 03: No, but he just testified that he knew exactly what prior art meant for this particular patent. [00:17:28] Speaker 02: No, he said he understood what the prior art, or the, actually what did he say? [00:17:32] Speaker 03: The critical date. [00:17:33] Speaker 02: No, he didn't use the words critical date. [00:17:36] Speaker 02: He said the patent was filed on July 24th of 2007. [00:17:43] Speaker 02: I actually invented it a little sooner than this, would be a year earlier, or July 24th, 2006. [00:17:49] Speaker 02: Right? [00:17:49] Speaker 02: So he doesn't use the word critical date. [00:17:51] Speaker 02: Am I wrong about that? [00:17:52] Speaker 03: He doesn't use that word? [00:17:53] Speaker 02: No. [00:17:53] Speaker 02: And he doesn't even actually use the word priority date, does he? [00:17:58] Speaker 02: And he actually says it was invented on July 24, 2006. [00:18:01] Speaker 02: That's not actually correct either, is it? [00:18:04] Speaker 02: We don't have any information in this record about precisely when it was invented, right? [00:18:09] Speaker 03: We have the filing date. [00:18:10] Speaker 02: Yes. [00:18:10] Speaker 02: So that's the filing date. [00:18:11] Speaker 02: That's not when it was invented. [00:18:12] Speaker 02: So your non-lawyer expert made a number of statements. [00:18:15] Speaker 02: But what he doesn't say [00:18:17] Speaker 02: is that I understood this to be the critical date. [00:18:19] Speaker 02: And I understood that everything I looked at in order to be prior art had to be before that date. [00:18:22] Speaker 02: And that's not surprising. [00:18:23] Speaker 02: He's not a lawyer. [00:18:24] Speaker 02: Correct? [00:18:26] Speaker 03: Correct. [00:18:26] Speaker 02: So he has a confusing testimony about dates of invention. [00:18:29] Speaker 02: And then he says, this came out in 2006. [00:18:31] Speaker 02: Thus, it is prior art. [00:18:34] Speaker 02: Not everything in 2006 is going to be prior art when the critical date is July 24. [00:18:39] Speaker 02: So I don't see where it's clear to me that this expert understood [00:18:43] Speaker 02: that it had to be prior to July 24, 2006 for him to consider it as prior art. [00:18:52] Speaker 03: OK. [00:18:53] Speaker 03: I do. [00:18:54] Speaker 03: When he talks about the question that was asked to him on Appendix 9302, so let's look at the 141 patent. [00:19:01] Speaker 03: When is the priority date of the 141 patent? [00:19:05] Speaker 03: That's the question that he responded to. [00:19:07] Speaker 02: Well, he says the priority date was July 24, 2007. [00:19:12] Speaker 02: That's not actually even right, is it? [00:19:14] Speaker 05: Well, no. [00:19:15] Speaker 03: He says on the next page, 2006, when it was filed on July 24, 2007. [00:19:20] Speaker 05: And then he says, indeed, it is a little sooner than this would be a year earlier, or July 24, 2006. [00:19:30] Speaker 05: But what bothers me is what bothers Judge Moore. [00:19:34] Speaker 05: OK. [00:19:35] Speaker 05: I'll accept that he knows the critical date is July 24. [00:19:39] Speaker 05: Well, why doesn't he say? [00:19:43] Speaker 05: He says, and that was in 2006, so it's prior art. [00:19:50] Speaker 03: Throughout his testimony, he says he uses the words prior art. [00:19:54] Speaker 03: And there's extensive testimony on what prior art means, including his own that he just said the earliest invention date for the foul patent is one year before that. [00:20:08] Speaker 03: And so the reasonable inference is when he uses the word prior art, [00:20:13] Speaker 03: He's talking about something before that date. [00:20:17] Speaker 02: With all due respect, I don't know if that's a reasonable inference for a non-lawyer. [00:20:20] Speaker 02: I'll run it by my kids tonight. [00:20:22] Speaker 02: They're really smart. [00:20:22] Speaker 02: I'll see what they say. [00:20:24] Speaker 00: But then if you come back to the cross-examination, which Judge Moore referred to when he was given an opportunity to fill in a date that he hadn't done on direct, [00:20:44] Speaker 00: He rather conspicuously didn't fill it in. [00:20:47] Speaker 00: He was asked about month and day, and he said, never testified to that. [00:20:54] Speaker 03: You're right, Your Honor. [00:20:56] Speaker 03: What he did testify to is that he had looked at the Wayback Machine and found the specific date of the last update, which was July 4, 2006, prior to the critical. [00:21:07] Speaker 05: Where's that July 4? [00:21:11] Speaker 00: I don't think he mentions that. [00:21:12] Speaker 03: Yeah, I'd like to see that. [00:21:15] Speaker 03: It actually is in the, he may not have, I'm sorry, he may not have said that. [00:21:20] Speaker 03: That is in the exhibit that was referenced that was not before the court. [00:21:24] Speaker 02: The Chinese thing? [00:21:26] Speaker 03: It is in Chinese. [00:21:27] Speaker 03: And these parties all speak Chinese. [00:21:29] Speaker 03: And we had translators at court for all of the factors. [00:21:32] Speaker 02: And why didn't you introduce, it's not in the record. [00:21:35] Speaker 03: It is not in the record. [00:21:36] Speaker 02: You didn't even put it in the appendix either. [00:21:39] Speaker 00: I don't speak Chinese. [00:21:46] Speaker 00: One of the things that Judge Guilford said was that your witness got, at least within the year, and then he gave some significance or thought the jury could give some significance to the silence on the specifics from the other side. [00:22:06] Speaker 00: What legal authority, I don't remember [00:22:09] Speaker 00: seeing citation of legal authority for something that certainly can be true in some circumstances, right? [00:22:16] Speaker 00: Silence can sometimes speak. [00:22:19] Speaker 00: But here, what legal authority do you have to offer for giving enough weight to the absence of information from the other side that might allow the jury to find your side to have met its clear and convincing evidence burden? [00:22:38] Speaker 03: By silence, I don't have a case. [00:22:41] Speaker 03: By corroboration, using all of the facts that were in the record at the time, which included A10's own user manual that the CEO of A10 testified had been released in 2004, the testimony of the witnesses and his own recollection in this case as to the priority date, that should be considered corroboration. [00:23:02] Speaker 00: And what is notably absent is any- But the user manual doesn't refer to that. [00:23:07] Speaker 00: particular firmware version that's relied on for this missing element. [00:23:11] Speaker 03: That's correct. [00:23:12] Speaker 03: And what the district court says is it's notable that A10, when it clearly has this product, it created this product and invented the patent and the firmware. [00:23:24] Speaker 03: Did you ask in discovery? [00:23:30] Speaker 03: Yes. [00:23:31] Speaker 05: Council said, jeez, it's old. [00:23:35] Speaker 05: We don't. [00:23:36] Speaker 05: You know, they're all records. [00:23:37] Speaker 05: Did you ask for those records? [00:23:39] Speaker 03: Yes, we had broad but sufficiently narrow discovery requests to pull any type of prior art product that would have been A10's own product. [00:23:50] Speaker 05: Did you get anything or any objection saying we don't have that sort of thing? [00:23:58] Speaker 03: There were standard objections given, but we never obviously got that. [00:24:04] Speaker 03: In fact, we had to obtain that device through, I think it was Amazon. [00:24:09] Speaker 02: When a judge says the plain meaning of a term is going to apply and he's going to instruct the jury to use the plain meaning of a term, do you think it's appropriate for both parties to put on dueling experts that offer different plain meanings and for that inquiry then to go to a jury as to which of those two plain meanings [00:24:31] Speaker 02: The jury should credit for infringement analysis. [00:24:36] Speaker 02: It's a question of law. [00:24:37] Speaker 02: I'm not saying that's what happened in this case. [00:24:38] Speaker 02: I'm asking you, is it your view or understanding that the law permits the jury to decide what the plain meaning should be in a scenario where two experts testify to different plain meanings? [00:24:51] Speaker 03: As a matter of law, it is the court's duty to construe claims. [00:24:58] Speaker 02: And so if two experts [00:25:00] Speaker 02: If the court says plain meaning and then expert number one says the plain meaning is direct connection and expert number two says no, the plain meaning could include both direct and indirect connection, is it really proper under the law, like under Markman, for that to go to a jury and for a jury to figure that out? [00:25:19] Speaker 03: Infringement is for the jury to determine. [00:25:21] Speaker 03: And a view of the plain and ordinary meaning as to one of ordinary skill in the art is proper for [00:25:28] Speaker 03: experts to testify on, including intrinsic evidence where the expert needs to be. [00:25:33] Speaker 02: But it still has to be decided by the court, correct? [00:25:36] Speaker 03: If there is dispute as to claim scope, that should be decided by the court. [00:25:40] Speaker 03: The one exception would be it is acceptable for the defendant, in this case, uniclass, to rely on the scope of the claim as testified to by A-10 for the purposes of invalidity. [00:25:53] Speaker 03: And that's what the district court pointed out in this case, is that Mr. Desmellek was relying on A-10's scope of the claim for the purposes of invalidity and only really used that language, claim construction. [00:26:05] Speaker 03: I'm adopting or using the court's claim construction. [00:26:07] Speaker 02: Well, actually, he never said the court's claim construction. [00:26:09] Speaker 03: He said the correct claim construction. [00:26:11] Speaker 03: Later he did say the court's construction is the only correct construction. [00:26:14] Speaker 02: Yeah, but earlier he said you should use the correct construction, which implicit in that is there's a correct and an incorrect one. [00:26:20] Speaker 03: Yes, and the correct one was the court's. [00:26:22] Speaker 03: which was the plain and ordinary meaning, what it was not was an unreasonable. [00:26:26] Speaker 02: Yes, but then he was explaining to them what the plain and ordinary meaning ought to be. [00:26:29] Speaker 02: He pulled up the specification and the prosecution history, especially it was more, to me quite frankly, more offensive. [00:26:37] Speaker 02: And look, if they don't object, it's on them. [00:26:40] Speaker 02: But it was more offensive in the detecting scenario than it was in the connecting. [00:26:45] Speaker 02: Detecting is the other one, right? [00:26:46] Speaker 02: It is. [00:26:48] Speaker 02: That's the place where he really was walking through the spec and the prosecution history and telling them what the scope of the claim ought to be. [00:26:55] Speaker 02: And I just thought to myself, how can this be occurring during trial? [00:27:01] Speaker 02: Why is something like this going to the jury? [00:27:05] Speaker 03: Well, the fact witnesses were testifying as to what it meant to detect occupation of a cable, for example, in the accused's device. [00:27:16] Speaker 03: chief engineer testified that sending a message is not detecting a cable as a matter of fact, which is different than the claimed scope, which would be a matter of law. [00:27:28] Speaker 03: And I believe this is exactly what Judge Guilford was talking about when he said, I needed to let the testimony play out to see if there was any kind of a problem that could prejudice the ultimate result that the jury came to. [00:27:41] Speaker 03: And he said, I find no problem here. [00:27:43] Speaker 03: He was able to reconcile the verdict. [00:27:44] Speaker 02: Well, he let it play out, but then in his opinion post trial, or at least post all evidence being introduced, he said they didn't raise it. [00:27:54] Speaker 02: They didn't raise this argument. [00:27:55] Speaker 02: If this is a problem with claim construction, and if your expert went too far in that he was telling the jury how to construe the claims, [00:28:04] Speaker 02: And then the problem was on them because they didn't raise it, at least with regard to infringement. [00:28:07] Speaker 02: They may have raised it with regard to invalidity, but they didn't raise it with regard to infringement. [00:28:11] Speaker 02: Is that your understanding of his hold? [00:28:14] Speaker 03: That is my understanding of the holding. [00:28:16] Speaker 03: And I believe that the court was considering A-10's closing argument, where it says, quote, now for the other A-10 patents, he again, referring to Mr. Desmellek, is trying to confuse you. [00:28:27] Speaker 03: He testified about what he thinks A-10's claim constructions are in order to offer opinions on invalidity under those interpretations. [00:28:35] Speaker 03: But as you heard in the jury instructions, the judge gave you, which were very clear, there is only one claim construction in this case, and that comes from the court, not from Mr. Desmellek, again trying to confuse you." [00:28:47] Speaker 03: End of quote. [00:28:49] Speaker 03: They created their own qualifying jury instruction in that closing statement. [00:28:53] Speaker 03: They told the jury, don't rely on any construction other than the courts. [00:28:57] Speaker 03: They clearly knew that this was an issue. [00:28:59] Speaker 03: They actually knew way before in the expert report. [00:29:01] Speaker 02: Well, to be clear, their argument wouldn't be curative if they had really raised an objection to an actual problem. [00:29:08] Speaker 02: The court would have to instruct the jury to have it be a curative. [00:29:12] Speaker 02: I mean, if you're suggesting there was no ultimate prejudice by what occurred because they explained to the jury not to rely on it, I don't think that would cure an actual problem if there were one. [00:29:22] Speaker 02: I think the court would be obligated to cure it. [00:29:25] Speaker 03: Yes, it does do two things, though. [00:29:28] Speaker 03: It shows that they were on express notice of the issue and should have raised it if they truly thought it was an issue. [00:29:33] Speaker 03: But it also shows that they weren't that worried about it, because they- Well, until they lost. [00:29:37] Speaker 03: Until they lost. [00:29:38] Speaker 03: Right. [00:29:39] Speaker 03: But they weren't worried about it in respects to invalidity, in which, I'm sorry, with respect to infringement. [00:29:45] Speaker 03: They were concerned with it with respect to invalidity under their 50A motion. [00:29:50] Speaker 02: OK, your time is up. [00:29:52] Speaker 02: Let's give your opposing counsel his rebuttal time, and then we'll [00:29:56] Speaker 02: See you again for the next appeal. [00:30:03] Speaker 04: First off, to answer the question about the manual, if you look at appendix page 9303, there's some testimony on the date of the manual in 2004. [00:30:16] Speaker 04: I'd also just really like to raise the two main points. [00:30:22] Speaker 04: One is that although the objection was [00:30:26] Speaker 04: raised later, the court explicitly said that these post-testimony downwards were fine. [00:30:34] Speaker 04: And that is on Appendix page. [00:30:36] Speaker 05: What I was asking you for is the date stamp manual. [00:30:40] Speaker 04: Oh, OK. [00:30:40] Speaker 04: I do not believe that is in the record. [00:30:43] Speaker 04: Apologize for that. [00:30:46] Speaker 04: So in that page, Appendix. [00:30:48] Speaker 04: That page gave rise to that question. [00:30:50] Speaker 04: OK, thank you. [00:30:54] Speaker 04: The court specifically said, would you call this a post-testimony dabber hearing on appendix page 9131? [00:30:59] Speaker 04: And continuing on in 9132, the court said, there's nothing wrong with that as far as I'm concerned. [00:31:07] Speaker 04: I'm just wondering. [00:31:09] Speaker 04: And I believe that gives at least some reason why our objections were made a little bit later and does help with that. [00:31:23] Speaker 04: I'd also just like to point out, if we kind of put ourselves in the world where no objection was made at all, or if you assume that that was way too late, I still believe that the Jamal issues are worthy of hearing and actually did not need to be raised. [00:31:41] Speaker 04: And I'm again referring to the Finjen case on page 1306. [00:31:47] Speaker 04: And this court had said that under such circumstances, the question for the trial court is limited to [00:31:53] Speaker 04: whether substantial evidence supports the jury's verdict under the issued construction. [00:31:58] Speaker 04: The issued construction being plain and ordinary meaning there. [00:32:03] Speaker 04: And then in that case, the court looks to whether or not it was reasonable for the jury to interpret in a specific manner. [00:32:12] Speaker 04: And then finally, I would just like to point out the way that Uniclass has most recently at least interpreted [00:32:22] Speaker 04: Detecting occupation is available on page 48 of their brief. [00:32:27] Speaker 04: And it says, the plain and ordinary meaning of detecting occupation is to identify physical occupation of the port by a cable without necessarily detecting the flow of messages. [00:32:38] Speaker 04: And we take that to be a concession that, although it's physical occupation that must be detected, that particular mode, detecting the flow of messages, is not excluded under their interpretation. [00:32:52] Speaker 04: And following that, we believe that the admission that master-slave status is determined by assessing the flow of messages is actually admission that should compel Jamal of infringement of the 289. [00:33:09] Speaker 02: OK, Mr. Sandel, the case is taken under submission. [00:33:13] Speaker 02: Our next case, you're Mr.