[00:00:00] Speaker 03:
This is Crane Security Technologies versus Rolling Optics AB, case number 18-2374.

[00:00:43] Speaker 03:
Councilor Starr, you have reserved three minutes of your time for rebuttal, correct?

[00:00:48] Speaker 02:
Yes, Your Honor, and it's pronounced steer.

[00:00:51] Speaker 03:
Steer.

[00:00:52] Speaker 03:
Thank you.

[00:00:57] Speaker 02:
Let me begin.

[00:00:59] Speaker 02:
May it please the Court.

[00:01:01] Speaker 02:
I intend to focus this morning on two issues.

[00:01:04] Speaker 02:
First,

[00:01:05] Speaker 02:
The indefiniteness of claims that recite the position of a projected image in relation to a given claim.

[00:01:15] Speaker 02:
And second, the requirements of actual notice under Section 287A.

[00:01:19] Speaker 02:
A reversal on these two issues would lift the permanent injunction against Rolling Optics current products and remove all but $15,000 of the damages even troubled.

[00:01:33] Speaker 03:
Do we have to reverse on both of those issues in order to affect the permanent injunction or would reversal on just one of the issues be sufficient?

[00:01:45] Speaker 02:
A reversal on the first of the issues regarding a given claim would lift the permanent injunction.

[00:01:53] Speaker 02:
Okay.

[00:01:53] Speaker 02:
I propose to leave the other issues to our briefs unless the court has questions.

[00:01:58] Speaker 02:
So beginning with indefiniteness.

[00:02:00] Speaker 02:
In column three of the specification,

[00:02:04] Speaker 02:
It describes images.

[00:02:07] Speaker 02:
This is at appendix 343.

[00:02:09] Speaker 03:
Which volume?

[00:02:12] Speaker 03:
We have four volumes.

[00:02:14] Speaker 02:
The first volume.

[00:02:17] Speaker 02:
But it's also in the appendix to our brief.

[00:02:22] Speaker 03:
What was that citation again?

[00:02:24] Speaker 03:
What page?

[00:02:24] Speaker 02:
343, column three, beginning at around line 30 or so.

[00:02:31] Speaker 02:
It describes images that appear to move up or down, quote, as the material is rotated through a given angle.

[00:02:42] Speaker 02:
Now, we all understand that statement.

[00:02:46] Speaker 02:
It has an ordinary meaning.

[00:02:49] Speaker 02:
A given angle is not a term of art.

[00:02:54] Speaker 02:
And similarly, the claim phrase, a given plane, has an ordinary meaning.

[00:03:01] Speaker 02:
It's readily apparent to a lay judge.

[00:03:05] Speaker 02:
And under the circumstances, Phillips tells us that claim construction in such cases involves little more than the application of widely accepted meaning of commonly understood words.

[00:03:19] Speaker 02:
The problem here is that as claim language, a given plain is used as a reference.

[00:03:29] Speaker 02:
So the words are understandable, but the scope of the claim is unclear.

[00:03:36] Speaker 02:
And that renders it indefinite, certainly.

[00:03:41] Speaker 00:
The district court, as I understand it, looked at this and said, you have to read a given claim in light of the specification.

[00:03:49] Speaker 00:
And when you look at the specification,

[00:03:51] Speaker 00:
It's the plane of the system.

[00:03:54] Speaker 00:
That might not be the exact words.

[00:03:56] Speaker 00:
But that's the plane that is continually referenced.

[00:03:59] Speaker 00:
And so that's the meaning that should be given to this word in the claim, in the context of the specification.

[00:04:05] Speaker 00:
So what's your response to that?

[00:04:08] Speaker 00:
Reading it in light of the specification, why isn't the district court's interpretation correct?

[00:04:15] Speaker 02:
Several reasons, Your Honor.

[00:04:16] Speaker 02:
Four.

[00:04:17] Speaker 02:
First of all,

[00:04:19] Speaker 02:
What the court did was to parse the claim language, a given plain.

[00:04:26] Speaker 02:
And that was impermissible where the claims repeatedly used a phrase as a whole.

[00:04:33] Speaker 02:
This court has held that all of the words should be construed together in such cases.

[00:04:38] Speaker 02:
That was the first problem.

[00:04:39] Speaker 02:
The second problem is even if that were the appropriate question to be asking,

[00:04:48] Speaker 02:
It's not true.

[00:04:51] Speaker 02:
Figure 27, for example, is one example showing three image planes in relation to each other, no description of the plane of the system at all.

[00:05:02] Speaker 02:
So there isn't simply one plane that we should be talking about here.

[00:05:13] Speaker 02:
Figure 29 is similar.

[00:05:17] Speaker 02:
How many planes are in figure 29?

[00:05:23] Speaker 02:
Multiple.

[00:05:23] Speaker 02:
Hundreds, probably, in figure 29.

[00:05:26] Speaker 02:
All right?

[00:05:27] Speaker 02:
And they all have a relationship to each other.

[00:05:30] Speaker 02:
And there are a number of

[00:05:33] Speaker 02:
There are many planes referenced in the patent.

[00:05:36] Speaker 02:
Many of them are image planes.

[00:05:38] Speaker 02:
One is the plane of the system.

[00:05:41] Speaker 02:
But the third problem that I want to discuss with the court's approach was it was asking the wrong question.

[00:05:50] Speaker 02:
It was asking, what is the relevant reference plane?

[00:05:54] Speaker 02:
Now, that might have been an appropriate question if the claim language read the given plane.

[00:06:01] Speaker 02:
But the claim language is a given plain.

[00:06:05] Speaker 02:
It is an indefinite phrase, inherently.

[00:06:11] Speaker 02:
And Phillips instructs us that we cannot revise or ignore the explicit language of the claim.

[00:06:22] Speaker 02:
A given plain is an indefinite phrase like a reference plain.

[00:06:29] Speaker 02:
You're putting the rabbit in the hat if you're saying, well, what is the reference plane?

[00:06:36] Speaker 02:
You're starting from the conclusion.

[00:06:38] Speaker 02:
You're assuming the result.

[00:06:41] Speaker 02:
Because the claim language is not stated in that manner.

[00:06:46] Speaker 02:
It's stated as a given plane.

[00:06:49] Speaker 02:
And where the draftsman wanted to use the plane of the system as the appropriate reference plane,

[00:06:59] Speaker 02:
In the claim language, he did that.

[00:07:03] Speaker 02:
He did that repeatedly, for example, in the 462 patent, which was filed on the very same day as the applications for the 030 and the 360 patents.

[00:07:16] Speaker 02:
Now, that also suggests to us.

[00:07:19] Speaker 01:
I'm sorry, just a weekly, but that phrase is not used in either of the two patents that we have directly in front of us.

[00:07:26] Speaker 01:
The claims.

[00:07:28] Speaker 02:
The plain of the system is used, in fact, also used in the patents that we have in front of us.

[00:07:37] Speaker 01:
The claims.

[00:07:38] Speaker 01:
In the claims, yes.

[00:07:40] Speaker 01:
I think you just cited an example of its use in a patent not in front of us, namely the 462.

[00:07:47] Speaker 02:
It was one of the patents asserted, but it is not one of the patents in front of the court on this appeal.

[00:07:51] Speaker 01:
So can you just give me an example in the 360?

[00:07:54] Speaker 01:
Yes.

[00:07:56] Speaker 02:
Claim 42 of the 360 patent.

[00:08:01] Speaker 02:
That uses both the phrase, a given plane, and the plane of the system.

[00:08:10] Speaker 00:
And the district court thought that that claim

[00:08:12] Speaker 00:
I think, supported its construction, right?

[00:08:16] Speaker 00:
It said so.

[00:08:17] Speaker 00:
It said so.

[00:08:17] Speaker 02:
Why is that wrong?

[00:08:19] Speaker 02:
It's wrong because the district court ignored the presumption, which is that if there are different terms used in the same claim

[00:08:31] Speaker 02:
they are to be accorded different meanings unless there is some reason that they shouldn't be.

[00:08:37] Speaker 00:
But I thought the district court didn't ignore that necessarily, instead thought that in this context, in this claim, they had the same meaning.

[00:08:44] Speaker 02:
The district court brushed it aside without really explaining why the presumption did not apply here.

[00:08:52] Speaker 02:
The district court was result-oriented and that was where it was going.

[00:08:58] Speaker 02:
But in fact, what we have here is the district court converting a phrase drafted as an indefinite phrase, a given plain, and substituting the words, the claim, the plain of the system for that phrase.

[00:09:19] Speaker 02:
Now, that wasn't based on any extrinsic evidence.

[00:09:24] Speaker 02:
The district court didn't have, didn't rely on any extrinsic evidence.

[00:09:29] Speaker 02:
It ignored the extrinsic evidence that was submitted by our expert.

[00:09:33] Speaker 02:
It completely ignored the Crane's expert.

[00:09:37] Speaker 02:
And it's an interesting

[00:09:42] Speaker 02:
exercise to go through their brief.

[00:09:45] Speaker 02:
And at pages 39 and 40 of the red brief, they do basically what the district court did.

[00:09:54] Speaker 02:
They took their own expert's statement of his opinion.

[00:09:59] Speaker 02:
And if you read the pages, you will see that they have substituted in brackets the word

[00:10:07] Speaker 02:
For what appears, if you go back to pages 20578 and 20579 of the appendix, their expert uses the word A. I mean, this is the problem here.

[00:10:22] Speaker 02:
You can't simply substitute one word for another.

[00:10:26] Speaker 02:
That's rewriting the claim.

[00:10:28] Speaker 02:
That is ignoring its plain and explicit meaning.

[00:10:36] Speaker 02:
Now, what the district court also did was to pick a claim construction that was contraindicated.

[00:10:48] Speaker 02:
It read limitations from the specification into the claim.

[00:10:55] Speaker 02:
The claim it recognized was broad as it was written.

[00:10:58] Speaker 02:
So what the district court did was say, well, we'll restrict it to the float embodiment, or we'll restrict it to the deep embodiment.

[00:11:06] Speaker 02:
But this court and the Supreme Court had said that that's impermissible.

[00:11:11] Speaker 02:
You don't, without express definition,

[00:11:17] Speaker 02:
or disavowal, you do not read limitations from the specification into the claims.

[00:11:23] Speaker 02:
And whether you're the patent holder or the accused infringer, the same rule should apply.

[00:11:31] Speaker 02:
And in this case, that's what the court did in order to try to save this claim.

[00:11:39] Speaker 02:
What we have then is a situation where definiteness

[00:11:48] Speaker 02:
precisely as the Supreme Court was focused on in the Nautilus case.

[00:11:53] Speaker 02:
The definiteness of a claim was sacrificed.

[00:11:56] Speaker 02:
There was an intentional choice

[00:12:00] Speaker 02:
of an ambiguous phrase, that creates a zone of uncertainty which gives an unreasonable advantage to a patentee.

[00:12:09] Speaker 02:
And it's precisely in this kind of situation that the Supreme Court is saying, we need a check, a definiteness check, on this kind of claim drafting.

[00:12:19] Speaker 00:
How were the claims interpreted for purposes of the infringement analysis?

[00:12:23] Speaker 00:
They were interpreted to be the plane of the system?

[00:12:26] Speaker 02:
Yes, Your Honor.

[00:12:28] Speaker 02:
Now, if I may then, unless there are other questions, I'll turn to the notice requirement.

[00:12:35] Speaker 02:
My fundamental point is this.

[00:12:38] Speaker 01:
Can I just ask you a question?

[00:12:40] Speaker 01:
Yes, sure.

[00:12:42] Speaker 01:
Triggered by your reference to the red brief 3940, putting in the word the in brackets in place of the whatever, A. In place of A in the declaration of somebody or other.

[00:13:01] Speaker 01:
Did you contend below that

[00:13:04] Speaker 01:
there was more than one plane of the system?

[00:13:08] Speaker 02:
No, not as the specification describes it.

[00:13:11] Speaker 02:
And this was the problem with their expert's opinion and their claim construction.

[00:13:15] Speaker 02:
They said, initially, the claim construction should be a plane, a given plane of the micro-optic system.

[00:13:23] Speaker 02:
And their expert said, well, theoretically, the micro-optic system can have an infinite number of planes.

[00:13:30] Speaker 02:
And so that's how we're going to interpret it.

[00:13:32] Speaker 02:
The problem was,

[00:13:34] Speaker 02:
that that was directly at odds with the way the applicants used the term.

[00:13:38] Speaker 02:
When they wanted to talk about the system, they referred to it as having one plane in every claim in which they made that statement.

[00:13:50] Speaker 00:
Going back to my question before, you said that there was an unfair advantage to the patent owner in using the phrase, a given plane.

[00:13:57] Speaker 00:
But if it's interpreted to mean the plane of the system, and there's one plane of the system, what is the unfair advantage?

[00:14:02] Speaker 02:
the the unfair advantage your honor is that that's not how the the claim was written the claim was written in such a way that

[00:14:11] Speaker 02:
If the infringer, if the accused infringer is permitted to define where the given plane is located, there's not an infringement.

[00:14:20] Speaker 02:
If the patent holder is able to define where a given plane is located, then there's always an infringement.

[00:14:26] Speaker 00:
What if the court defines what it means in light of the intrinsic evidence?

[00:14:32] Speaker 00:
I'm trying to understand where claim

[00:14:35] Speaker 00:
has a meaning, I don't understand what the advantage is to the patent owner.

[00:14:41] Speaker 00:
And I guess you're trying to suggest that there's some wiggle room for later.

[00:14:45] Speaker 00:
That by making it purposefully broader, perhaps, then a patent owner has an advantage of being able to interpret the claims in a different way later.

[00:14:56] Speaker 02:
Exactly.

[00:15:00] Speaker 02:
embodiments other than those that were specifically later relied on.

[00:15:05] Speaker 00:
So the embodiments outside of what's in the specification.

[00:15:10] Speaker 02:
Well, embodiments other than the specific float and deep embodiments that they're now saying the claim is limited to.

[00:15:17] Speaker 02:
So they have this levitate embodiment, for example, Your Honor.

[00:15:21] Speaker 03:
But if I may, very briefly then, to turn to the... You really want to sum up, because you've almost used up all your rebuttal time, which is good.

[00:15:29] Speaker 03:
I mean, it's OK.

[00:15:30] Speaker 03:
I'm going to give you back your rebuttal time.

[00:15:32] Speaker 03:
But it'd be good if you concluded here soon.

[00:15:34] Speaker 03:
And I'll give you back your three minutes to rebuttal.

[00:15:37] Speaker 02:
Thank you, Your Honor.

[00:15:39] Speaker 02:
The notice issue revolves around the Amstead case, where you have a very similar set of circumstances.

[00:15:51] Speaker 02:
And as in the Gart case, the court contrasted the facts there to a mere invitation to determine for itself whether there was an infringement, which is what we faced in this instance.

[00:16:08] Speaker 02:
And I'll address the rest of it.

[00:16:09] Speaker 02:
Thank you.

[00:16:19] Speaker 04:
Good morning and may it please the court, Mark Fleming together with Jason Liss on behalf of Crane.

[00:16:24] Speaker 04:
I would start with Judge Stoll's first question, which I think crystallizes the issue perfectly, which is that definiteness is assessed not by looking at the claim language in isolation, but with due regard to the specification and the understanding of a skilled artisan.

[00:16:36] Speaker 04:
And when the view is broadened,

[00:16:37] Speaker 04:
as Nautilus and this court's case law suggests it should be, it's clear what the given plain claims cover.

[00:16:44] Speaker 04:
There's no evidence on the other side and certainly not clear and convincing evidence.

[00:16:48] Speaker 03:
What about figure 29 on appendix 337?

[00:16:51] Speaker 03:
Here's a concern that I have.

[00:17:00] Speaker 03:
When reference is made to

[00:17:02] Speaker 03:
to a given or given plane in the specification, it does so, it seems that there's a number of different types of planes.

[00:17:15] Speaker 03:
And I can show you some other ones, but starting with figure 29, how many planes are in that system?

[00:17:21] Speaker 04:
Well, there's a single plane of the system, which is the one between float and deep, that dotted line there.

[00:17:26] Speaker 04:
And then above it and below it, the ones that are circular, those are the planes where images can be seen.

[00:17:33] Speaker 04:
Some are above, and they're called float image planes, and some are below, and they're called deep image planes.

[00:17:38] Speaker 04:
But the reference plane, the one above which and below which the images appear, is always the plane of the system, which is the one, I guess it's 738.

[00:17:49] Speaker 04:
And the corresponding language, which is column 32 of the patent on 357,

[00:17:55] Speaker 04:
always refers to the float synthetic image space and the deep synthetic image space as separated by the plane, I guess it's 740.

[00:18:05] Speaker 03:
What about images that don't just don't appear to float or that are deep?

[00:18:10] Speaker 03:
What about the images of moon?

[00:18:12] Speaker 03:
What's a given plane there?

[00:18:15] Speaker 04:
So the images that move are not covered by the given plane claims.

[00:18:18] Speaker 04:
They're covered by other claims that recite images that appear to move.

[00:18:22] Speaker 04:
OK.

[00:18:23] Speaker 04:
But those aren't subject to this particular issue because they don't recite a given plane.

[00:18:27] Speaker 04:
The given plane is used in this case for purposes of identifying the ones that are either above or below.

[00:18:33] Speaker 01:
OK.

[00:18:36] Speaker 01:
the use of the indefinite Article A instead of the – is it Dr. Barbas-Tafas in the pages of the declaration that we were discussing earlier?

[00:18:49] Speaker 01:
He seemed to think that there was more than one claim of the system.

[00:18:53] Speaker 04:
Yes, and of course a plane is a mathematical abstraction, right?

[00:18:56] Speaker 04:
It has no dimension.

[00:18:58] Speaker 04:
And so it is theoretically possible that if you had a surface in real life that has a dimension, you could fit any number of infinite planes within it.

[00:19:06] Speaker 04:
But practically speaking, for purposes of this issue, the plane of the system is 50 microns thick.

[00:19:12] Speaker 04:
There's no question that a skilled artisan would understand a plane of the system and the plane of the system are functionally identical.

[00:19:19] Speaker 01:
Why didn't the expert then say

[00:19:21] Speaker 01:
In context, it's clear that there is just one plane of the system for the purposes for which this testimony is offered, which is the above a given plane being used as a reference for what is above or not above.

[00:19:40] Speaker 04:
Practically that is what he was saying and we clarified that on on summary judgment, but you know, it's true He could have said that but ultimately it doesn't matter because no matter what plane of the system you're talking about whether it's within when it's within the 50 micron thick layer It's evident whether something is going to be above that or below that for purposes of this path So it doesn't affect the indefiniteness issue at all a skilled artisan is always going to know that

[00:20:04] Speaker 04:
whether an image is appearing above or below the plane of the system.

[00:20:07] Speaker 04:
That's the purpose of this packing, is to explain how to achieve those effects by altering the stereoscopic scale ratio between the array of the lenses and the array of the icons.

[00:20:16] Speaker 04:
That's why, and to Mr. Steer's suggestion that the district court didn't rely on any extrinsic evidence, on the contrary, on page 12,

[00:20:24] Speaker 04:
It specifically looks at rolling optics' own materials, which talk about images appearing above or below.

[00:20:30] Speaker 04:
And they don't say above or below what, because they don't need to.

[00:20:34] Speaker 04:
Everyone in this industry understands that we're talking about putting images above or below the plane of the system.

[00:20:41] Speaker 04:
And there's no, I don't think, any dispute that that finding of fact

[00:20:46] Speaker 04:
deserves deference on appeal.

[00:20:48] Speaker 01:
In your view, there is neither linguistic nor physical indefiniteness as the Law Review article talked about?

[00:20:58] Speaker 04:
No, not when the claim is, as the Law Review article also talks about, viewed in the context of the specification and the entire record, including the

[00:21:07] Speaker 04:
findings of fact that the district court made based on the extrinsic record.

[00:21:11] Speaker 04:
And let's also be clear in response to a point that Mr. Steer made.

[00:21:14] Speaker 04:
The expert declaration from Mr. Gale was struck at Markman as untimely.

[00:21:21] Speaker 04:
That decision has not been appealed.

[00:21:22] Speaker 04:
And then when we got to summary judgment, Rolling Optics did not rely on that declaration at all.

[00:21:28] Speaker 04:
So what we have now is a finding by the district court on page 10 of the appendix that Rolling Optics submitted no expert testimony on this issue whatsoever.

[00:21:38] Speaker 04:
And that's not been appealed.

[00:21:39] Speaker 04:
The district court certainly was not required to trawl through the record and find a declaration that Rolling Optics did not even rely on at summary judgment.

[00:21:46] Speaker 04:
So, and if more were needed, again, Dr. Barbastathis testifies that skilled artisans know that above the given plane refers to the plane of the system, which is why they will often just say that the images float.

[00:21:57] Speaker 04:
They don't have to say they float above what.

[00:21:59] Speaker 04:
They don't have to say they float below what.

[00:22:01] Speaker 04:
Because everybody understands it's the plane of the system.

[00:22:03] Speaker 04:
Other patent applications that we cite have done likewise.

[00:22:06] Speaker 04:
And to the extent more were needed, though we don't think it is, we have the Phillips canon that the claims need to be construed to preserve their validity because the Patent Office wouldn't have issued an invalid patent

[00:22:15] Speaker 04:
if there was a reasonable construction that made it valid.

[00:22:18] Speaker 00:
Another question about a given claim.

[00:22:21] Speaker 00:
Are there any that you're aware of any dependent claims or other claims that after a given claim is referred to once later referred to it as the given claim since it's been referred to once now it has antecedent basis to refer to it as the given claim?

[00:22:35] Speaker 04:
One does not come to mind that uses the given plane.

[00:22:38] Speaker 04:
In the colloquy with Mr. Steer, you referred to the one that refers to the plane of the system, which the district court also realized showed that there was antecedent basis.

[00:22:47] Speaker 04:
I can't think of one that does it in the way you said.

[00:22:49] Speaker 04:
A couple of points just in response to the notion that just because multiple different phrases were used to describe the same thing, obviously this court in Inova has said that is not unusual.

[00:23:00] Speaker 04:
It said the same thing in Blue Calypso and in Bancorp.

[00:23:03] Speaker 04:
It's simply a case where the patentee used different phrases to express similar concepts, so that's not unusual.

[00:23:08] Speaker 04:
This is not a situation of reading in limitations from embodiments.

[00:23:12] Speaker 04:
This court said in Eidos that it's determining how a skilled artisan would understand the limitation is different from rewriting or reading in a limitation.

[00:23:21] Speaker 04:
Here we have a limitation, a given plane, and the specification gives meaning to it, and a skilled artisan would look to that.

[00:23:27] Speaker 04:
There wasn't much discussion of the notification issue.

[00:23:33] Speaker 04:
Let me just say the jury was correctly instructed on this.

[00:23:35] Speaker 04:
There's no dispute as to the jury instructions.

[00:23:38] Speaker 04:
The finding that the April 2010 letter gave sufficient notification of infringement is a factual finding under the court's decision in Maxwell.

[00:23:47] Speaker 04:
There's ample substantial evidence for it and the notion that someone receiving that letter would not know that there was an accusation of infringement by the very products that were

[00:23:57] Speaker 04:
mentioned in that letter is something that the jury was asked to decide.

[00:24:02] Speaker 00:
When you say by the products mentioned in the letter, you're talking about the descriptive language of products that perform certain functions?

[00:24:09] Speaker 04:
The products for sale that produce three-dimensional images that appear to exist on a plane other than the surface of the film.

[00:24:15] Speaker 04:
That's right.

[00:24:16] Speaker 04:
And I don't think there's any dispute that Rolling Optics was making at least one such product, not that many from as I understand it, and whether or not that was sufficient to put them on objective notice that if they imported those products to the United States they would infringe, that was a jury question and the jury answered it.

[00:24:32] Speaker 04:
I would, with the court's permission, briefly speak to the cross-appeal, which has to do with the district judge's order denying attorney's fees in this case.

[00:24:42] Speaker 04:
And I think this is one legal error that the court should correct in this case.

[00:24:46] Speaker 04:
The district court, although I recognize it, articulated the correct standard.

[00:24:51] Speaker 04:
under octane fitness.

[00:24:52] Speaker 04:
This is a case like a Justicam where the court mentioned the right standard but didn't assess it properly.

[00:24:58] Speaker 04:
And I think this is an area where the district courts could benefit from further guidance because unlike in the non-patent world or in the pre-octane world where fees are generally limited to sanctionable conduct now all that's needed as the court knows is unreasonable conduct and that's especially important here given rolling optics is especially weak position on the merits which is something that the trial judge

[00:25:19] Speaker 04:
in his post-judgment order did not assess.

[00:25:23] Speaker 04:
So we would say that as in a Justicam or as in Rothschild, this is a case where at the very least a remand is needed so that the court can apply the proper standard.

[00:25:31] Speaker 04:
So we'd respectfully submit that that aspect of the judgment should be vacated and remanded.

[00:25:37] Speaker 04:
As to everything else, the judgment should be affirmed.

[00:25:40] Speaker 04:
Unless the court has questions at this time, I'd reserve the balance of my time to address any issues on rebuttal on the cross-appeal, if I may.

[00:25:48] Speaker 00:
I have a question for you.

[00:25:49] Speaker 00:
So the language you're concerned about, in particular, if I understand, in the court's rather lengthy order regarding attorney fees, is on Appendix Page 52.

[00:25:58] Speaker 00:
Is that right?

[00:25:59] Speaker 00:
That's right, Your Honor.

[00:25:59] Speaker 00:
Yes, that's right.

[00:26:00] Speaker 00:
Where it says RO did not engage in singible conduct or bad faith litigation.

[00:26:04] Speaker 00:
But there's a lot of other statements made, right?

[00:26:09] Speaker 00:
There's a lot of other statements made here.

[00:26:12] Speaker 00:
where they raise numerous arguments because they have great importance.

[00:26:18] Speaker 00:
There's a lot of additional discussion.

[00:26:21] Speaker 00:
How do I get over the fact that there's a lot of other additional discussion that sounds quite reasonable?

[00:26:26] Speaker 00:
And I don't read that one sentence in the context of the rest of this discussion to mean that that was relied on as being the sole basis.

[00:26:37] Speaker 00:
It was just something that was noted.

[00:26:39] Speaker 04:
So it isn't exclusively that sentence, Your Honor.

[00:26:41] Speaker 04:
The sentence before, at the end of the paragraph, summarizing the analysis of the behavior of rolling optics during the trial says, these motions and efforts were not baseless or without legitimate purpose, which is the old Brooks furniture standard that it has to be objectively baseless, or the Rule 11 standard that you get sanctioned if you do something without legitimate purpose.

[00:27:03] Speaker 04:
then there's the sentence here on a red, and then after that it says the arguments it pursued were not frivolous.

[00:27:08] Speaker 04:
And once again, that's the standard that the Supreme Court in Octane said is too stringent under Section 285, because that's the common law standard.

[00:27:16] Speaker 04:
If you press an argument that's frivolous, you get sanctioned even without the statute.

[00:27:20] Speaker 04:
The statute directs the district court to analyze litigation conduct not simply for misconduct or sanctionable behavior, but also for conduct that will stand out even if it is not sanctionable.

[00:27:32] Speaker 04:
and to do so together with an analysis of the exceptionally weak merits, patent merits arguments that were raised throughout this case, which is not something that appears in this opinion at all.

[00:27:42] Speaker 00:
In looking at the totality of the circumstances, would you suggest that a court can't consider these factors as part of the totality of circumstances?

[00:27:50] Speaker 04:
Oh no, obviously they should be considered, but they shouldn't be all that's considered.

[00:27:54] Speaker 04:
And they should be considered against the correct legal standard, which is just something that we don't have here.

[00:27:59] Speaker 04:
There isn't a statement that this behavior, while not sanctionable, is also not something that rises to the level that the Supreme Court mentioned in Octane.

[00:28:07] Speaker 04:
And there is no evaluation anywhere.

[00:28:09] Speaker 04:
Certainly, Rolling Optics hasn't pointed to any.

[00:28:11] Speaker 04:
of the strength or weakness of Rolling Optics' position on the patent merits, which was striking in this case.

[00:28:17] Speaker 04:
After Markman, there was basically no non-infringement argument left.

[00:28:21] Speaker 04:
It was all decided on summary judgment.

[00:28:23] Speaker 04:
The Rolling Optics forced a trial that was completely unnecessary.

[00:28:27] Speaker 04:
None of the trial issues except for the brief mention of actual notice this morning has even been appealed.

[00:28:33] Speaker 04:
The invalidity cases

[00:28:34] Speaker 04:
gone except for indefiniteness, which was decided on summary judgment.

[00:28:37] Speaker 04:
That is not considered at all in this opinion.

[00:28:39] Speaker 04:
So we would suggest that the court respectfully should vacate and remand so that Judge Lerocan can consider that under the correct standard.

[00:28:46] Speaker 04:
Thank you.

[00:28:56] Speaker 02:
I'll be brief, Your Honor.

[00:28:57] Speaker 02:
With regard to the difference between a given plane and the plane of the system,

[00:29:05] Speaker 02:
The specification, when it refers to the plane of the system, uses different words, sometimes talks about it as the material, sometimes talks about it as other things, but it always uses the word the.

[00:29:20] Speaker 02:
And if you look at the red brief on page 33, when they reproduce all the different ways that there is a reference to the plane of the system, they omit the word the.

[00:29:30] Speaker 02:
Now, the focus here is on can you simply

[00:29:36] Speaker 02:
rewrite this claim to remove the indefinite phrase when the claim language itself is clear.

[00:29:46] Speaker 02:
And that was the problem here.

[00:29:48] Speaker 02:
And the court has said repeatedly that district courts are not to rewrite claims, whether to save them from invalidity or for any other reason.

[00:29:59] Speaker 02:
Now, with regard to notice, briefly, like the Amstead case,

[00:30:05] Speaker 02:
There was no dispute about the contents of the letter.

[00:30:09] Speaker 02:
It was a legal issue.

[00:30:10] Speaker 02:
It was decided after JMOL against the accused infringer.

[00:30:16] Speaker 02:
So we have the same situation essentially here.

[00:30:18] Speaker 02:
We have letters that are not in dispute.

[00:30:22] Speaker 01:
Did the question of actual notice go to the jury?

[00:30:25] Speaker 02:
Yes, it did.

[00:30:27] Speaker 02:
And on JMOL, it was denied.

[00:30:30] Speaker 02:
So that's how it came to the court.

[00:30:32] Speaker 02:
There was the mention of the word infringement, but no direct charge of infringement.

[00:30:39] Speaker 02:
There was no request for abatement in that case.

[00:30:43] Speaker 02:
And unlike Gart, what we had here was a mere invitation to determine for ourselves

[00:30:51] Speaker 02:
whether there was infringement.

[00:30:53] Speaker 02:
That's not a charge of infringement.

[00:30:55] Speaker 02:
That doesn't satisfy the notice requirement, which this court has held requires a specific charge of infringement by a particular product.

[00:31:06] Speaker 02:
Unless there are any further questions.

[00:31:12] Speaker 02:
No, sir.

[00:31:13] Speaker 02:
Thank you.

[00:31:13] Speaker 02:
Conclude.

[00:31:14] Speaker 02:
Thank you, Your Honor.

[00:31:17] Speaker 03:
You have three minutes.

[00:31:18] Speaker 04:
Mr. Steer did not mention attorney's fees, so I don't think I have anything to rebut.

[00:31:22] Speaker 04:
But if the court has any questions, I'm happy to address them.

[00:31:25] Speaker 03:
Okay.

[00:31:25] Speaker 03:
Well, thank you, sir.

[00:31:26] Speaker 04:
Thank you, Your Honor.

[00:31:27] Speaker 04:
I appreciate the court's time.