[00:01:07] Speaker 02: You may proceed. [00:01:08] Speaker 02: Thank you, your honor. [00:01:09] Speaker 02: May it please the court. [00:01:10] Speaker 02: Matthew Wolf for Halogic. [00:01:12] Speaker 02: In early 2004, Mr. Truckeye and his colleagues filed the claims at issue with the Patent Office of the 183 Patent. [00:01:22] Speaker 02: Six months later, for hundreds of millions of dollars, he sold that application as well as other technologies to Halogic. [00:01:30] Speaker 02: Four months after that, the claims issued, the very claims that Halogic had bought in the form they had bought them. [00:01:37] Speaker 02: Ten years later, Mr. Truckeye... Let me ask you a question. [00:01:40] Speaker 02: Yes, Your Honor. [00:01:41] Speaker 03: On page 85 of the red brief, Minerva says the district court awarded no damages for infringement of the 183, and you didn't appeal that decision. [00:01:52] Speaker 03: If that's true, why should we award supplemental damages for the 183 if no damages were awarded by the district court? [00:01:58] Speaker 02: Your Honor, we unambiguously did. [00:02:00] Speaker 02: I mean, that's issue three, I believe, from our appeal. [00:02:05] Speaker 02: We unambiguously did raise, in numerous different ways, the notion that if you agree with us on Astonora-Staple, the 183 damages would continue until either an injunction or the termination of the patent. [00:02:18] Speaker 02: Fair enough. [00:02:19] Speaker 02: So 10 years later, [00:02:21] Speaker 02: Mr. Chukai and his new company, Minerva, infringes the very claims he sold us in the very form he sold them to us. [00:02:28] Speaker 02: 140 million, was it? [00:02:32] Speaker 02: What did you say? [00:02:33] Speaker 02: Was it 140 million? [00:02:34] Speaker 02: 325 million. [00:02:37] Speaker 02: Sold it to us. [00:02:38] Speaker 02: And then when we sued him for infringing the patents he sold us, he filed an IPR. [00:02:43] Speaker 02: Now, this court has held that was within his right. [00:02:46] Speaker 02: What's not within his rights, what's not part of the changes wrought by the AIA is that he could avail himself personally in the private litigation between these two parties of the result of the IPR. [00:03:00] Speaker 02: And so the district court got it right, and in fact, it's not appealed, that Asenora-Staple applies in this case. [00:03:07] Speaker 02: All the circumstances apply in this case. [00:03:09] Speaker 02: That's not appealed, not disputed. [00:03:11] Speaker 02: Where the district court erred was [00:03:13] Speaker 02: in suggesting that because, as to the rest of the world, this patent is no longer enforceable or no longer valid, it is not valid as to this particular plaintiff, or defendant in this case. [00:03:27] Speaker 02: That's, of course, the whole purpose of Asinore Estoppel, is to uniquely position the Asinore of a patent and say, you and you alone, because you've already earned money from this patent, [00:03:38] Speaker 02: principles of equity and law. [00:03:40] Speaker 02: And it's interesting. [00:03:41] Speaker 02: I mean, the Diamond Scientific case, and this may or may not be relevant to this appeal, the Diamond Scientific case notes that Asenor Estoppel has one foot in equity and one foot in law in the analogy to Estoppel by deed. [00:03:52] Speaker 02: You uniquely, in this case Minerva, are not able to avail yourselves of the benefits of what happens. [00:03:57] Speaker 04: Is it that you're not able to avail yourself of the benefits, or is it that you're not able to challenge the validity? [00:04:03] Speaker 04: You are stopped from challenging the validity of the patent in a district court. [00:04:08] Speaker 02: Your Honor, it was until the Arista case, both. [00:04:12] Speaker 04: Well, I understand. [00:04:15] Speaker 04: But now it's that, unfortunately, that ship is sailed. [00:04:21] Speaker 04: And that decision was based on the statutory language in the AIA. [00:04:26] Speaker 02: Correct. [00:04:27] Speaker 02: But the whole point of Arista, and Arista very carefully noted the competition between the branches of government and the tensions in form shopping. [00:04:38] Speaker 02: It did not say, because it would have been contrary to what it was trying to do, that if somehow a patent isn't validated in an IPR, that the assinor can avail themselves. [00:04:49] Speaker 02: I mean, collateral estoppel is a similar concept, right? [00:04:52] Speaker 02: Collateral estopolis sometimes prevents you uniquely, the collateralist party, from being able to assert a fact in the world, a truth, a legal finding, a change in law, whatever it may be. [00:05:03] Speaker 02: The whole concept of estopolis, it may be true that the 183 patent is invalid. [00:05:08] Speaker 02: But that doesn't mean that you, Minerva, get to avail yourselves of that fact in a district court. [00:05:14] Speaker 02: Because the core of equity is unclean hands. [00:05:17] Speaker 02: That's one of the bases of the four, I think Diamond Scientific identified [00:05:21] Speaker 02: Four bases for us in North Doppel. [00:05:23] Speaker 02: That was the first of the four they identified, Your Honor. [00:05:25] Speaker 02: That's exactly right. [00:05:26] Speaker 02: When they said it's consistent, this is Arista at 804, that such a discrepancy between forms, one that follows from the lines with respect to statutes, is consistent with the overarching goals of the IPRI process that extend beyond the particular parties in a given patent dispute. [00:05:41] Speaker 02: Well, now we are back with the particular parties in a given patent dispute. [00:05:45] Speaker 02: And in this case, the district court [00:05:47] Speaker 02: having found that asinora estoppel existed, should have said that as to Minerva, they cannot avail themselves of the benefits of that IPR result till November 2020. [00:06:01] Speaker 02: Or as you know, we've argued for an injunction here. [00:06:04] Speaker 02: And unless there are further questions on the asinora estoppel issue, which I think is an important one, narrow but an interesting issue of law, I'm going to move on to the injunction issue. [00:06:15] Speaker 02: As this court noted in Bosch, and it is within your discretion, and it is entirely your discretion, whether you're going to skip the typical interim step, assuming you agree with us on the Asenora-Stoppel, of sending it back for the district court to analyze the factors regarding the eBay factors, the four eBay factors. [00:06:34] Speaker 02: And what Bosch suggests it is, when there's overwhelming evidence and the clock is ticking, as it is in this case, because the patent expires in November 2020, you can yourself [00:06:43] Speaker 02: put the injunction in place. [00:06:45] Speaker 02: And we've laid out in the briefs. [00:06:46] Speaker 02: Unless you have questions, I won't go through it. [00:06:48] Speaker 02: But it is as powerful an injunction case as there can be. [00:06:52] Speaker 02: It is an important but not essential feature. [00:06:54] Speaker 02: It was sold to us. [00:06:56] Speaker 02: They themselves minimized the benefits to their own product while we say it's critical to ours, et cetera. [00:07:03] Speaker 02: That's all in the briefing. [00:07:05] Speaker 02: With that, the remaining damages issues are worth hundreds of thousands of dollars in and of themselves of our appeal. [00:07:13] Speaker 02: But if you agree with us on the Ascinaristopol issue, then they're worth millions and millions of dollars, which is why all those little issues at the end of our brief that may have seemed a bit... [00:07:23] Speaker 04: Nickel and dime they're not if you extend the damages period in November 2020 they are worth quite a lot of money, so we want to ask you about one of those yes, which is The argument that the district court should have awarded enhanced damages yes And the argument that the district court erred by not explaining going through the read factors Yes, it was an abusive discretion by not doing that what I'm not saying is that [00:07:49] Speaker 04: Where did the district court find that there was willful infringement post-verdict? [00:07:54] Speaker 04: I understand that this is the jury found there was no willful infringement for pre-verdict activity. [00:08:00] Speaker 04: And now you're arguing that there was willful infringement post-verdict activity. [00:08:06] Speaker 04: Where does that fact finding come from? [00:08:08] Speaker 02: It doesn't. [00:08:09] Speaker 02: The court didn't get there. [00:08:10] Speaker 02: The court said, because the patent is what the IPR killed, the 183, and as to the 348, there's only a few months. [00:08:21] Speaker 02: So the court just basically said, I'm not going to deal with it. [00:08:23] Speaker 02: So there was no fact-finding. [00:08:25] Speaker 04: We're not suggesting that there's no finding of willful infringement. [00:08:27] Speaker 00: Including no fact-finding or willfulness. [00:08:28] Speaker 02: Correct. [00:08:29] Speaker 04: How can you have enhanced damages if there's no finding of willful infringement? [00:08:33] Speaker 02: Well, there's actually a dispute, as you know, Your Honor, about whether exceptional case and that kind of thing requires a final willfulness. [00:08:40] Speaker 02: But putting that aside, we think that there should have been an analysis of willfulness. [00:08:44] Speaker 02: And that's baked into it. [00:08:45] Speaker 00: Did you argue for that? [00:08:46] Speaker 00: That's baked into it. [00:08:48] Speaker 00: When you said, you know, we think you should increase or enhance the royalties. [00:08:52] Speaker 02: That's baked into the Reed factors. [00:08:53] Speaker 02: A number of those Reed factors. [00:08:54] Speaker 04: Willful infringement isn't decided under Reed. [00:08:57] Speaker 04: Reed is the standard for determining the amount of enhancement [00:09:02] Speaker 04: after there's been a finding of willful infringement. [00:09:05] Speaker 02: But Your Honor, I think post, and I may be wrong on this, and maybe there's a case I'm missing, but post-jury verdict willfulness, there's no one to go back to for, because it's a jury that decides willfulness, there's no one to go back to. [00:09:19] Speaker 02: So read a number of the factors deal with the state of mind, the intent, the motivation, [00:09:24] Speaker 02: the clean mind and clean hands of the defendant. [00:09:27] Speaker 02: So I think that Reed supplants a willfulness finding in a post-verdict context. [00:09:34] Speaker 04: OK. [00:09:34] Speaker 04: So here, the jury found there was no willful infringement pre-verdict. [00:09:38] Speaker 04: Correct. [00:09:39] Speaker 04: You're saying that our case law supports the idea that the district court should look to Reed to determine whether there's willfulness post-verdict. [00:09:48] Speaker 02: Right. [00:09:49] Speaker 02: If you continue, if you're found to infringe. [00:09:51] Speaker 00: Should they change the product? [00:09:54] Speaker 02: That is the issue of the pivot handle. [00:09:59] Speaker 00: If they change, you would undermine the will. [00:10:04] Speaker 02: That would be like a colorably distinct analysis by the district court under an injunction. [00:10:20] Speaker 02: Yes and no. [00:10:21] Speaker 02: They said it was a prototype. [00:10:23] Speaker 02: At the time of trial, Mr. Chakai said he didn't even know about it. [00:10:28] Speaker 00: Their CEO was talking about what the judge knew about it. [00:10:31] Speaker 02: We don't know what the judge said. [00:10:35] Speaker 02: He ordered damages through the expiration of the 348 patent. [00:10:40] Speaker 02: He asked for a complete accounting, which would suggest that he [00:10:43] Speaker 02: either didn't know or didn't think it was not infringing. [00:10:47] Speaker 02: But then we have the where he actually, when he got to the dollar amount, he backed it out. [00:10:51] Speaker 02: We just don't know, Your Honor, is the answer. [00:10:52] Speaker 02: We just don't know. [00:10:54] Speaker 02: And with that, I reserve the rest for unless there are further questions for the cross appeal. [00:11:12] Speaker 01: Good morning, Your Honors. [00:11:13] Speaker 01: May it please the court, Rob Hockman from Minerva. [00:11:16] Speaker 01: My intention of the limited time I have today is to address two issues that we think dispose of this whole case. [00:11:21] Speaker 01: One, in Hologic's appeal, the question about the mootness of the 183 claim and why a sign or stopple does not undo that has no impact on that and can't affect that. [00:11:31] Speaker 01: So no relief, including injunctive relief, is warranted for any infringement of the so-called 183 patent. [00:11:37] Speaker 03: Let me ask you a question. [00:11:40] Speaker 03: Yeah. [00:11:40] Speaker 03: Footnote one of the yellow brief or logic says, the district court also undoubtedly made a typographical error in the final judgment. [00:11:49] Speaker 03: Do you agree with them on that? [00:11:50] Speaker 01: No. [00:11:50] Speaker 01: This has to do with the damages down, with the calculation of interest. [00:11:55] Speaker 01: And it was just a date that was selected by them and that they put in front of the district court. [00:12:00] Speaker 01: And the district court just adopted it. [00:12:01] Speaker 01: That's all. [00:12:03] Speaker 01: Focusing on the 183 patent, the other issue, by the way, that I want to be sure to get to, has to do with the applicator head claim construction and our appeal. [00:12:11] Speaker 01: on the 348 patent. [00:12:12] Speaker 01: So starting with the 183 patent, Your Honor, the district court determined the claim is moot, and that's right, because that's what XY and Fresenius say. [00:12:20] Speaker 01: And Fresenius roots this doctrine way back. [00:12:22] Speaker 01: It's a 160-year-old Supreme Court precedent. [00:12:25] Speaker 01: Fresenius marched through the changes to the patent statute, all of which make clear that when the patent office takes away a patent... Right, but Fresenius is not dealing with a sign or a stopper. [00:12:36] Speaker 00: Right, but... [00:12:37] Speaker 00: Take your adversary's argument on its face for what it's worth, and he says, yeah, Fresenius applies to everybody in the whole world, anybody else that they had a lawsuit going against, even if they had a judgment, if it hadn't been executed, they're screwed, it's all over. [00:12:52] Speaker 00: But guess what? [00:12:53] Speaker 00: For this particular case, there's a different rule. [00:12:56] Speaker 00: That's what he's saying. [00:12:58] Speaker 01: Yeah, and here's why that's wrong, Your Honor, because Fresenius says there's no cause of action. [00:13:03] Speaker 01: It's extinguished. [00:13:05] Speaker 01: It's void ab initio. [00:13:06] Speaker 01: These are quotes from Fresenius. [00:13:08] Speaker 01: Their claim is void ab initio. [00:13:10] Speaker 01: Now let's go to Diamond Scientific, and let's look at what a sign or stop looks like. [00:13:15] Speaker 03: When I'm talking, you don't, or any of the judges. [00:13:18] Speaker 03: What if your client cannot assert that? [00:13:23] Speaker 01: I'll get to that in a second, because I think that XY says it can actually be raised to espante. [00:13:27] Speaker 01: So we don't have to assert. [00:13:29] Speaker 01: We don't have to assert that. [00:13:31] Speaker 01: We did, obviously, and it was proper for us to. [00:13:32] Speaker 01: No, what if you can't assert proceedings? [00:13:34] Speaker 01: But we can assert it, because Diamond Scientific doesn't take that away from us. [00:13:39] Speaker 01: It doesn't take away the ability to say they don't have a cause of action. [00:13:42] Speaker 01: What Diamond Scientific says is a sign or a stopple, as Judge Stoll suggested, is about a sign ors being stopped from defending patent infringement claims. [00:13:53] Speaker 01: That's a quote. [00:13:54] Speaker 01: Defending patent infringement claims by asserting invalidity. [00:13:58] Speaker 01: As of the date that this court affirmed the IPR ruling that the patent is invalid, we were not defending a patent infringement claim. [00:14:07] Speaker 01: The patent infringement claim was, in the language of Fresenius, void, ab initio. [00:14:12] Speaker 01: We were not asserting. [00:14:13] Speaker 01: We didn't get a judgment of invalidity. [00:14:15] Speaker 01: We were not at that point to prevail. [00:14:17] Speaker 01: We didn't have to assert invalidity. [00:14:20] Speaker 01: All we had to do was say the claim is moot. [00:14:23] Speaker 01: And that's the judgment we got. [00:14:25] Speaker 01: We didn't get an invalidity. [00:14:26] Speaker 01: How can you say we're stopped from getting the judgment we got when the only thing we're stopped from getting? [00:14:33] Speaker 00: You're defending their claim by saying the claim doesn't exist. [00:14:36] Speaker 01: The claim doesn't exist. [00:14:37] Speaker 01: That's the difference. [00:14:38] Speaker 01: We are not saying district judge, give us a judgment of invalidity. [00:14:42] Speaker 01: That's already been done through a proceeding that this court has said is proper. [00:14:46] Speaker 01: And that's the end of the matter. [00:14:47] Speaker 03: What if you're barred from saying the claim doesn't exist? [00:14:51] Speaker 01: Well, that would be a different doctrine. [00:14:53] Speaker 01: That would be a dramatic expansion. [00:14:55] Speaker 01: of a sign or estoppel, because then a sign or estoppel would not be just an estoppel of a defense of invalidity in a patent infringement claim. [00:15:03] Speaker 01: It would be the reviving of a cause of action itself. [00:15:06] Speaker 01: And that would be wholly novel, completely expansive, well beyond the range of even the traditional sign or estoppel. [00:15:13] Speaker 01: And I understand how logic takes the view that we have not challenged a sign or estoppel in this case. [00:15:17] Speaker 01: In fact, we have. [00:15:19] Speaker 01: We've made clear, and opinions from this court have made clear, that a sign or estoppel is a questionable doctrine, but at a minimum, [00:15:25] Speaker 01: At a minimum, it's not a doctrine that warrants that kind of dramatic expansion. [00:15:31] Speaker 04: You asked us to overrule a sign or estoppel, right? [00:15:35] Speaker 01: Yes, we have. [00:15:36] Speaker 01: That is correct. [00:15:37] Speaker 01: So it would be a dramatic difference in the law of a sign or estoppel to say that it revives a cause of action that, as Fresenius said, is void ab initio. [00:15:47] Speaker 01: They have no claim. [00:15:48] Speaker 01: And because they have no claim, they have no right to any relief. [00:15:51] Speaker 01: And so you don't even have to figure out how the eBay factors could possibly be applied in this bizarro situation where you have a dead patent, but they're claiming that there's some great public interest that's being served by enforcing it. [00:16:06] Speaker 01: And at the end of the day, I just want to emphasize this is really critical. [00:16:11] Speaker 01: This patent died. [00:16:13] Speaker 01: They lost the ability to enforce it against anyone. [00:16:15] Speaker 01: The problem they really have is with Arista. [00:16:18] Speaker 01: That's clearly their problem. [00:16:20] Speaker 01: They never say anything about Fresenius and the consequences of an affirmance of an IPR that the claim is extinguished, void ab initio. [00:16:30] Speaker 01: As XY said, this can be raised suesponte by the court. [00:16:35] Speaker 01: If it's an estoppel against us, how could the extinguishment of the claim be raised suesponte by the court? [00:16:42] Speaker 03: Well, could be. [00:16:43] Speaker 03: But that's an interesting question, because the court could then raise it. [00:16:46] Speaker 01: Well, and the court did. [00:16:48] Speaker 01: The court determined that this case is moot. [00:16:50] Speaker 01: And on that basis, you can affirm. [00:16:52] Speaker 01: Let me turn to the applicator head. [00:16:54] Speaker 00: But before you do that, because time's going to run out, I'm not sure I understand your challenge to the royally award of $587,000. [00:17:04] Speaker 00: Is the mistake here a failure to specify which of the two patents the award goes to? [00:17:10] Speaker 00: Yeah, it's a straight up portion. [00:17:12] Speaker 00: Or is it a failure below to a portion [00:17:15] Speaker 00: value as to the patent? [00:17:16] Speaker 01: So it was a failure to apportion, Your Honor. [00:17:19] Speaker 00: Apportion as to what? [00:17:21] Speaker 01: Yeah, and what I mean is apportion value as to the two different patents. [00:17:24] Speaker 01: So there were two patents put before the jury. [00:17:27] Speaker 01: The district court agreed that you can't get anything for the 183 and said, but that's fine. [00:17:32] Speaker 01: We'll just dump it all into the 348. [00:17:34] Speaker 04: OK. [00:17:35] Speaker 04: So I have a question for you on that, too. [00:17:37] Speaker 04: So I think that their expert, I think, [00:17:40] Speaker 04: Dr. Berry, Mr. Berry. [00:17:43] Speaker 04: He has testimony at 30439 where he says, whether the first patent's infringed or the second patent's infringed, 10% royalty. [00:17:55] Speaker 04: He says they both can be infringed. [00:17:57] Speaker 04: One can be infringed. [00:17:58] Speaker 04: The other one can be infringed. [00:17:59] Speaker 04: 10% royalty is the reasonable royalty. [00:18:03] Speaker 04: Then there was no jury instruction. [00:18:05] Speaker 04: As the district court judge said, there was no evidence provided for apportionment. [00:18:10] Speaker 04: And so there was no reason to instruct the jury to apportion in this way between the two patents. [00:18:16] Speaker 04: Instead, Hologic's expert said it's 10% no matter what, same royalty rate no matter what, because it's the same accused devices. [00:18:24] Speaker 04: So my question to you is this. [00:18:27] Speaker 04: Is there any other evidence in the record on this apportionment where you explained why it was that Hologic's expert was wrong? [00:18:36] Speaker 01: Well, the evidence that matters is that we asked for a jury instruction that said divide, tell the jury to value the patents separately. [00:18:46] Speaker 01: That was refused. [00:18:47] Speaker 01: And once that's refused, they do have evidence. [00:18:50] Speaker 01: They have a statement. [00:18:51] Speaker 01: But we don't know what the jury thought. [00:18:53] Speaker 01: And there's good reason to believe that we just don't know. [00:18:56] Speaker 04: And the we don't know is a problem enough. [00:18:58] Speaker 04: I hear you. [00:18:59] Speaker 04: But I'm assuming then [00:19:03] Speaker 04: My question is valid. [00:19:05] Speaker 04: What is your answer to my question? [00:19:06] Speaker 01: Did we put on evidence that the patents are differently valued? [00:19:09] Speaker 04: Yeah. [00:19:10] Speaker 04: Like, did your damages expert explain that there could be a different rate? [00:19:13] Speaker 04: Hey, if you find one patent infringed, it should be different. [00:19:17] Speaker 04: Anything. [00:19:17] Speaker 04: Is Mr. Berry's testimony undisputed? [00:19:21] Speaker 01: I don't recall anything specific about that as I stand here, but I would like to have the opportunity to submit something post-argument if something does come up. [00:19:29] Speaker 00: We should treat it as undisputed. [00:19:32] Speaker 00: We should treat it well. [00:19:32] Speaker 00: It's not that it was undisputed because we asked for... Either you can point to something that disputes what the expert said or you can't. [00:19:39] Speaker 00: If you say you can't, so we've got to decide the case. [00:19:41] Speaker 01: Right, but my point is, to the extent it was undisputed is because we didn't get the instruction. [00:19:46] Speaker 00: So you didn't get the instruction. [00:19:48] Speaker 01: So what? [00:19:49] Speaker 03: Wait a second. [00:19:50] Speaker 03: You got the cart before the horse. [00:19:52] Speaker 03: If there's no evidence, why should the court give a jury? [00:19:56] Speaker 01: No, no. [00:19:57] Speaker 01: There's evidence in the record that these patents are differently valued substantially. [00:20:00] Speaker 01: Our damages expert said that. [00:20:02] Speaker 01: The question is whether at trial, I don't remember whether at trial when we didn't get the instruction we wanted. [00:20:07] Speaker 01: Evidence before the jury. [00:20:08] Speaker 04: That's what we're asking about is evidence before the jury. [00:20:12] Speaker 04: Please don't interrupt me. [00:20:15] Speaker 04: The district court [00:20:16] Speaker 04: said, I'm not going to give you the instruction because there was no evidence that anything had to be apportioned, provided the jury. [00:20:23] Speaker 04: How in the world are they going to apportion when nobody told them how to do that? [00:20:27] Speaker 01: So I am confident that our damages expert said that the two patents, which are completely different technologies, have to be valued differently. [00:20:38] Speaker 01: I'm confident. [00:20:38] Speaker 00: That may all be so. [00:20:39] Speaker 00: I just don't recall. [00:20:40] Speaker 00: I don't have the page number right now. [00:20:42] Speaker 00: Wait, wait, wait. [00:20:42] Speaker 00: With all due respect, you're now making an argument on what you think is in the record. [00:20:47] Speaker 00: It's too late. [00:20:48] Speaker 00: The issue is in front of us. [00:20:50] Speaker 00: Your adversary has said your argument on this point loses because we had our expert testify that it's 10%, jury said A, either way. [00:21:00] Speaker 00: And your response to that is judge didn't give an instruction. [00:21:05] Speaker 00: That argument has just been thrown under the bus. [00:21:08] Speaker 01: And you're going to get a chance to stand up again. [00:21:12] Speaker 01: We'll see if we can find it, but I'm confident that these are very different technologies. [00:21:16] Speaker 03: It's your responsibility to tell us. [00:21:18] Speaker 01: Yeah, I will find it. [00:21:20] Speaker 01: What I want to use as quickly as possible, because I know I'm running out of time, the 348 patent claim construction. [00:21:26] Speaker 01: We obviously have an invalidity argument that follows on this as well, but I want to emphasize the claim construction. [00:21:31] Speaker 01: This is a dramatic claim construction error, and it would really require unwinding years of this court's claim construction law to affirm this claim construction ruling. [00:21:41] Speaker 01: The applicator head, or as it's referred to in the patent specification in various places, the electrode array, is said to be fluid permeable. [00:21:51] Speaker 01: The electrode array includes a fluid permeable elastic member. [00:21:54] Speaker 01: That's the summary. [00:21:55] Speaker 01: The abstract says essentially the same thing. [00:21:59] Speaker 01: The title, they're asking you to read this patent, which is titled Oyster Transport System. [00:22:04] Speaker 00: Why they say it was preferably permeable. [00:22:06] Speaker 01: Here's, let's go through that passage. [00:22:08] Speaker 01: That's Pat, that's Appendix 162. [00:22:10] Speaker 00: You know what I'm talking about. [00:22:11] Speaker 01: Yeah, Appendix 162, Column 5. [00:22:13] Speaker 01: Let's read it. [00:22:14] Speaker 01: The electrode carrying means, that's the applicator head, is, and it's going to talk about three characteristics. [00:22:20] Speaker 01: This is Column 5, 52 to 56. [00:22:26] Speaker 01: Electrode carrying means is one, preferably a sac formed of material which is nonconductive. [00:22:30] Speaker 01: So it's preferably nonconductive, which is permeable to moisture. [00:22:35] Speaker 01: Not preferably permeable. [00:22:36] Speaker 01: to moisture is permeable to moisture. [00:22:38] Speaker 01: That's two. [00:22:39] Speaker 01: And three, which may be compressed to a smaller volume. [00:22:43] Speaker 01: Maybe. [00:22:43] Speaker 01: So that's optional. [00:22:44] Speaker 01: So it's preferably non-conductive. [00:22:47] Speaker 01: It is unqualifiably permeable, which is exactly what's said in the abstract and in the summary and in the title. [00:22:54] Speaker 01: And it may be compressed to a smaller volume. [00:22:57] Speaker 01: So compressibility is optional. [00:22:58] Speaker 04: So your view is that even though the plain claim language doesn't have that [00:23:03] Speaker 04: permeable aspect, we should read it in because it should be clear from the specification that it's so important that it's almost a disclaimer not to have it. [00:23:14] Speaker 01: Absolutely. [00:23:15] Speaker 01: That is exactly our view. [00:23:16] Speaker 01: It is exactly the view that prevailed in Ultimate Pointer. [00:23:18] Speaker 01: It is exactly the view that prevailed in Ruckus. [00:23:20] Speaker 01: It is exactly the view that prevailed in Barcon Wireless. [00:23:23] Speaker 01: You don't need an express disclaimer. [00:23:25] Speaker 01: What would an express disclaimer mean? [00:23:27] Speaker 03: You're in your time. [00:23:28] Speaker 01: Yeah, I understand. [00:23:30] Speaker 01: What would an express disclaimer mean? [00:23:31] Speaker 01: The electrode array includes a fluid permeable elastic member, comma, which is not permeable. [00:23:37] Speaker 01: I mean, it says fluid permeable. [00:23:38] Speaker 01: It would be redundant. [00:23:39] Speaker 01: This is the clearest case you can have. [00:23:42] Speaker 01: And you cannot affirm this case without undoing ultimate pointer, ruckus, and Phillips itself. [00:23:49] Speaker 01: You have to do this process where you sit there with a dictionary and ignore the specification. [00:23:53] Speaker 01: And the clarity here is overwhelming. [00:23:56] Speaker 01: And it's as strong as in any case. [00:23:58] Speaker 01: And it's so strong, I also urge, Your Honors, to please consider, when you remand this case, that you remand with instructions to enter judgment of no infringement on the 348 patent. [00:24:09] Speaker 01: Not for further proceedings. [00:24:10] Speaker 01: That's what you did in Eon, in footnote three. [00:24:13] Speaker 01: This case is just as clear. [00:24:14] Speaker 01: Our device can't work if it's not impermeable, if it's permeable. [00:24:20] Speaker 01: Our device can't work. [00:24:21] Speaker 01: It would be dangerous to the patient if argon gas leaked. [00:24:24] Speaker 01: The system would fail. [00:24:26] Speaker 01: It wouldn't ignite the argon gas if moisture came in. [00:24:30] Speaker 01: The whole system doesn't work. [00:24:31] Speaker 01: And the testimony on that is clear, as well as the manual at 15968. [00:24:35] Speaker 01: If the balloon can't hold the gas, you've got to throw the device away. [00:24:41] Speaker 01: There's no ambiguity about that. [00:24:42] Speaker 01: So we strongly urge that you enter judgment in our favor of no infringement on the 348 patent and affirm the judgment of movement. [00:24:49] Speaker 01: So I'll reserve the remainder of my time. [00:24:55] Speaker 02: Council just read you four or five statements about the electrode array. [00:25:00] Speaker 02: The problem is the electrode array isn't the term that's being construed. [00:25:05] Speaker 02: The term in the claim is applicator head. [00:25:08] Speaker 02: The term applicator head is used 63 times in the specification. [00:25:14] Speaker 02: Not once, not once in those 63 times is the applicator head said to have anything to do with the moisture removal or the permeability or all the different features they want to read in. [00:25:25] Speaker 02: So their entire argument is, look at what's said about the electrode array. [00:25:30] Speaker 02: We're going to find that equals definitional Teva-level lexicography, which we disagree with in and of itself. [00:25:39] Speaker 02: But now we're going to say electrode array is synonymous with applicator head. [00:25:44] Speaker 02: And so it must be used to define applicator head, notwithstanding the fact that electrode array is used sometimes in the patent is a different thing, is a different part [00:25:54] Speaker 02: applicator head 63 times. [00:25:56] Speaker 02: And sometimes it says things about the applicator head. [00:25:59] Speaker 02: It says it includes flexures, for example, which theirs, of course, does. [00:26:03] Speaker 02: So this is simply slight of hand. [00:26:05] Speaker 02: I mean, putting aside whether it reaches the level of lexicography or disclaimer, they're defining the wrong term. [00:26:13] Speaker 02: So unless there are other questions in applicator head, I'll move back to the issue of ASIN or estoppel and address briefly that point with that. [00:26:23] Speaker 02: Council used some very strong language to describe our position. [00:26:27] Speaker 02: Bizarro world, things like that. [00:26:30] Speaker 02: I would note that this exact issue has been addressed, albeit by a district court, not this court. [00:26:36] Speaker 02: But in the Amfense case, this is 710F SUP 42. [00:26:39] Speaker 02: This was in the re-exam. [00:26:42] Speaker 02: Court said, [00:26:43] Speaker 02: Even if, upon reexamination, the US Patent Office finds that the 423 patent is invalid, the defendants will be unable to assert that finding because the doctrine of asinora estoppel prevents them. [00:26:58] Speaker 02: So again, we're not arguing that that's binding on this court. [00:27:02] Speaker 02: The District of Connecticut did not find this a bizarro proposition that we're proffering to you today. [00:27:09] Speaker 02: In fact, it found it the natural evolution of Asinore Estoppel. [00:27:16] Speaker 02: And to Judge Stoll's very apt point about the two different components, what Arista said is you can't assert it. [00:27:25] Speaker 02: You can't, one benefit of asinore stopper would have been pre-AIA for us to say to Minerva, you Minerva, you can't kill our patent, vis-a-vis the rest of the world. [00:27:37] Speaker 02: Your hands are tied. [00:27:38] Speaker 02: You can't do an IPR. [00:27:40] Speaker 02: That's not allowed. [00:27:41] Speaker 02: And what Arista said, and respectfully I disagree, but it's the law of the land, [00:27:45] Speaker 02: No, they can do that for the benefit of the public. [00:27:48] Speaker 02: But nothing Arista said or Mentor or MAG or any other case said that the second effect, that the unique asinore position that they are in, that that is somehow abrogated. [00:28:00] Speaker 02: There's nothing in the statute that dictates that. [00:28:02] Speaker 02: There's nothing in the case law that dictates that. [00:28:05] Speaker 02: And as I've shown you, district courts have already anticipated what the natural import of that is. [00:28:10] Speaker 02: Unless there are further questions, I will take my seat. [00:28:14] Speaker 00: What's your response to your adversary's argument on the desire to enhance and enlarge the royalty award? [00:28:21] Speaker 00: In what sense, sir? [00:28:22] Speaker 00: I'm sorry. [00:28:23] Speaker 00: Well, I mean, you heard what we said, and we were giving your adversary some questions about the fact that your [00:28:30] Speaker 00: expert came on and said 10%, 10%, 10%, no matter what. [00:28:35] Speaker 02: Yes. [00:28:35] Speaker 02: So Your Honor, what the expert said, and Judge Stoll, and he said it multiple times, and there's multiple places, is we have a method claim and a system claim. [00:28:45] Speaker 02: And that from a licensing perspective, in the hypothetical negotiation, and he went through the factors, it would be 10%. [00:28:52] Speaker 02: And you wouldn't disaggregate. [00:28:53] Speaker 02: No one would pay 20%. [00:28:55] Speaker 02: He wasn't arguing that you should stack them. [00:28:57] Speaker 02: But that if you want to practice one or the other, they're both important, they're both integral, one's method, one's system. [00:29:04] Speaker 02: They go forward. [00:29:05] Speaker 02: What their expert got up and said is, our rate's too high. [00:29:09] Speaker 02: He didn't say our rationale was wrong. [00:29:11] Speaker 02: He said, our rate's too high. [00:29:13] Speaker 02: I would do lower than that. [00:29:14] Speaker 02: And you know what? [00:29:14] Speaker 02: Jury partly agreed with him. [00:29:16] Speaker 02: We asked for 10%. [00:29:17] Speaker 02: The jury gave 8%. [00:29:19] Speaker 02: So the jury followed. [00:29:21] Speaker 02: I mean, this is kind of precisely the way damages are supposed to work. [00:29:25] Speaker 02: The jury followed that approach. [00:29:28] Speaker 02: When they turned around and asked for specific instruction, Judge [00:29:31] Speaker 02: Battalion quite rightly said, where is the countervailing expert testimony that would justify it? [00:29:37] Speaker 02: Otherwise, you're just going to confuse the jury and have them go back in that room looking for evidence that doesn't exist. [00:29:41] Speaker 04: So it's your view that there was no evidence presented by Minerva's expert explaining why apportionment would be necessary? [00:29:49] Speaker 02: Right. [00:29:49] Speaker 02: Their argument was lower, not disaggregated. [00:29:53] Speaker 02: And with that, Your Honors, thank you for your time. [00:29:55] Speaker 02: Thank you, counsel. [00:30:01] Speaker 01: just on starting with the 183. [00:30:03] Speaker 01: This is mentor graphics at the back. [00:30:06] Speaker 01: For example, contrary to the suggestion of mentors, counsel, and argument, a sign or estoppel does not preclude the estopped party from arguing that the patentee itself is collateral estopped from asserting a patent found invalid in a prior proceeding. [00:30:22] Speaker 01: That's this court's decision. [00:30:23] Speaker 01: So the notion that am fence [00:30:25] Speaker 01: somehow overrides a 1998 decision of this court is unsustainable. [00:30:31] Speaker 01: He says that we're not talking about the applicator head when we point to all of the places where it talks about the need for permeability of the electrode array in the applicator head. [00:30:40] Speaker 01: But what he doesn't say, what he can't say, what he's [00:30:44] Speaker 01: Softly said and the applicator head you pointed to the yeah Well what yeah what I'm saying is that the electrode array is often referred to as the component that is referred to in the claim as the applicator head That's my point what he can't point to and has never pointed to is any place in the specification for [00:31:01] Speaker 01: where it refers to the applicator head or the electrode array as being permeable. [00:31:06] Speaker 01: Because this is a moisture transport system. [00:31:10] Speaker 01: That's the title. [00:31:11] Speaker 01: Your honor, he's asking you to write an opinion that says the moisture transport system. [00:31:15] Speaker 01: And he said this. [00:31:16] Speaker 04: One of the problems with your argument, to be honest with you, is that you have nothing in the claim that says permeable. [00:31:22] Speaker 01: But that was true of ultimate pointer. [00:31:24] Speaker 01: I understand. [00:31:25] Speaker 01: The claim language in ultimate pointer was just as unqualified. [00:31:29] Speaker 01: Handheld device a computer handheld device could be direct pointing device like a wand or it could be a mouse And the did and the and the court this court there very clearly went through and said every time it refers It refers only to direct pointing same here every time it refers to permeability It's only permeable or not impermeable. [00:31:50] Speaker 01: I just want to answer the question I want to yeah, do you have evidence for me on the apportionment the what we would point to at this point is a [00:31:57] Speaker 01: Appendix page 31961 to 64 and what's that show and what that's what that's going to show your honor is why so that in fact that the the rejection of the instruction is [00:32:15] Speaker 01: that was given, Your Honor, was not because there wasn't evidence of distinction, but because the court determined that Hologic just got to choose its preferred way, abortion or not. [00:32:28] Speaker 01: But what I think it's going to show there is that the district court's rationale was unlinked to any dispute that we had shown that we had different valuations for these different vets. [00:32:42] Speaker 04: I've read this. [00:32:43] Speaker 04: And on page 31961, the court says, quote, how would they do that? [00:32:48] Speaker 04: There's been no testimony on what the split is because they didn't put an expert to tell them. [00:32:53] Speaker 04: And I mean, but they did put out an expert, which we already talked about earlier, to the extent that that is whole logic. [00:33:04] Speaker 04: So he did say how there's no evidence. [00:33:07] Speaker 04: There has been no testimony. [00:33:09] Speaker 01: But that wasn't ultimately his choice. [00:33:13] Speaker 01: Our point is that, again, I don't have a citation at this time to our damages experts. [00:33:21] Speaker 01: on distinction between the two patents. [00:33:23] Speaker 01: And so I'll just leave it at that, because I don't want to mislead the court. [00:33:26] Speaker 01: I don't want to leave the court with any impression. [00:33:28] Speaker 01: And ultimately, I want to emphasize, I don't think the court has any reason to reach any of these damages issues, because we're entitled to judgment on the 348, and the judgment of lunacy should be affirmed on the 183. [00:33:40] Speaker 01: Thank you. [00:33:40] Speaker 03: Matter stand submitted.