[00:00:00] Speaker 00:
Before our argument begins, let me say you're, as our all counsel and the judges, in a difficult position because we can't do visual cues.

[00:00:10] Speaker 00:
So I ask you to listen extra carefully for when a judge starts to speak so that they can ask a question.

[00:00:18] Speaker 00:
Okay?

[00:00:21] Speaker 02:
Yes, Your Honor.

[00:00:22] Speaker 00:
Yes, Your Honor.

[00:00:23] Speaker 00:
Okay.

[00:00:24] Speaker 00:
Go ahead and proceed, Mr. Murphy.

[00:00:27] Speaker 00:
How long are you reserving?

[00:00:29] Speaker 02:
Five minutes, Your Honor.

[00:00:30] Speaker 00:
Okay, go ahead and start.

[00:00:33] Speaker 02:
Thank you, Your Honor, and may it please the Court.

[00:00:35] Speaker 02:
The District Court made three main errors.

[00:00:38] Speaker 02:
I'll jump in by discussing the Court's incorrect legal standard, and then I'll point out the key factual errors, and finally, I'll address the Court's improper resolution of factual disputes in balls of favor.

[00:00:50] Speaker 00:
Mr. Murp, a little housekeeping question for you.

[00:00:54] Speaker 00:
On page 10, footnote 4 of the blue brief, you provide a YouTube link to a video

[00:00:59] Speaker 00:
What's the foundation?

[00:01:03] Speaker 02:
The YouTube link was referenced at some point during the district court proceedings, but it was never entered into the evidence of any particular proceeding, and it's strictly there for reference if it gives some sense of aluminum can design.

[00:01:22] Speaker 00:
I don't see how we can take cognizance of it.

[00:01:27] Speaker 00:
doesn't have a foundation, we certainly can't take judicial notice.

[00:01:31] Speaker 02:
That's fine, Your Honor.

[00:01:32] Speaker 00:
OK.

[00:01:33] Speaker 02:
Go ahead.

[00:01:35] Speaker 02:
With regard to the legal framework for indefiniteness, repeatedly, the district court said that it was seeking the precise location of the lower point on the cannon wall.

[00:01:46] Speaker 02:
And that phrase, precise location, is not just harmless verbiage.

[00:01:50] Speaker 02:
It reflects substantive errors in two ways.

[00:01:54] Speaker 02:
First is, the standard under Nautilus, of course, is not precise.

[00:01:57] Speaker 02:
It's reasonable certainty.

[00:01:59] Speaker 02:
And the focus on location is wrong because it's not the location of a lower point that matters.

[00:02:06] Speaker 02:
What matters is the claimed angle of the line.

[00:02:08] Speaker 02:
Now, yes, the claimed angle depends on the location of the point.

[00:02:12] Speaker 02:
But as the record of this case itself shows, because of the realities of cannon design, the movement of that point does not always affect the angle in any type

[00:02:23] Speaker 02:
in a substantively important way.

[00:02:26] Speaker 04:
This is Judge Toronto.

[00:02:28] Speaker 04:
Let me pick up on a point that I come into this oral argument having near the front of my mind, both as to Ball and your side.

[00:02:40] Speaker 04:
I want to pick up on the term that you used does not always affect whether a realistically

[00:02:52] Speaker 04:
designed can that would meet other elements of the claim would be uncertain as to the angle of the line being inside or outside the particular claim limitations.

[00:03:11] Speaker 04:
And I found the record rather thin on

[00:03:19] Speaker 04:
that question, both from Ball's point of view and your point of view.

[00:03:24] Speaker 04:
I'm not sure Ball actually put in evidence that even though the different methodologies could produce different angles that it could produce in a realistic world, different angles, some of which would fall inside and some of which would fall outside,

[00:03:45] Speaker 04:
the claim limitations, which differ from claim to claim.

[00:03:51] Speaker 04:
Can you illuminate this issue for me?

[00:03:57] Speaker 02:
Well, Your Honor, I agree with the way that you put it that Ball did not produce that evidence.

[00:04:01] Speaker 02:
And if I had to try to illuminate it, I would say that it has to do with the way that Ball framed the issue on summary judgment.

[00:04:10] Speaker 02:
The question of whether there were different methods

[00:04:13] Speaker 02:
for determining the location of the second point and what effect that might have in the real world was not an issue that was disputed in this case before summary judgment with motion was filed in 2018.

[00:04:26] Speaker 02:
So there was not really a built up record on it.

[00:04:28] Speaker 02:
Ball's motion is premised on three supposedly different methods used by Crown's own expert in the past.

[00:04:37] Speaker 02:
And that's the rule.

[00:04:39] Speaker 04:
Right, but let me just try to, just until we're on the same page, assume with me for purposes of this question that Dr. or Mr. Higgum did indeed use, let's say, three different methods and they could produce different angles.

[00:04:59] Speaker 04:
Just assume that.

[00:05:01] Speaker 04:
I'm interested in the question whether those differences

[00:05:06] Speaker 04:
were shown in the record one way or the other to be, to have a material bearing on whether a competitor would be infringing or not?

[00:05:20] Speaker 02:
No, Your Honor, they were not.

[00:05:21] Speaker 02:
Accepting your counterfactual hypothetical that the other two methods, the finite element analysis and AB, really were different methods that a skilled artist in might look to, there was no evidence that applying those methods

[00:05:35] Speaker 02:
to some particular end or a real world end would yield materially different, material differences in the angle with respect to the claims.

[00:05:47] Speaker 02:
The closest, I mean, not just to continue on the point, I think the closest that ball comes with the way ball frames it is they say, well, with respect to finite element analysis, if you look at figure four and you look at testimony that Chaim gave from 2008,

[00:06:04] Speaker 02:
that, you know, according to Ball, Chaim put the point in two slightly different spots.

[00:06:10] Speaker 02:
But even accepting the whole premise of Ball's argument, it falls on the point that you raised, Judge Toronto, because the two different points posed by Ball's counsel yield exactly the same angle.

[00:06:23] Speaker 02:
And with respect to the AB case, it's a similar story where when Chaim applied

[00:06:31] Speaker 02:
the method that he used in the AB case, this angle deflection approach, to the CDL and the SID issue in this case, Chaim reached exactly the same result for the claimed angle.

[00:06:46] Speaker 04:
So at page 6672 of the appendix, which I think is the other side, something from the other side's expert,

[00:06:58] Speaker 04:
There is, I think, an assertion with a picture to the effect that, although it wasn't one of Mr. Hyam's methods, the claim language, because it leaves uncertain where the lower point is, the so-called second point or the transition point, that leaves uncertain whether one could use what is something essentially at the bottom of the bead.

[00:07:28] Speaker 04:
And if you use that, I think their expert says you actually fall below the 30-degree figure, which that's the 826 figure, not the 875 figure, if I remember right.

[00:07:47] Speaker 04:
What do you make of that evidence?

[00:07:49] Speaker 04:
And first of all, was that part of the summary judgment motion or a response, a reply, or what?

[00:07:54] Speaker 04:
This is at 6672 of the Joint Appendix.

[00:07:57] Speaker 02:
I'll start with the last part of the question you asked.

[00:08:01] Speaker 02:
Memory escapes me, but I believe that Ball entered this portion of its expert's non-infringement report as part of its reply, meaning that the views of its expert was not part of Ball's motion for summary judgment.

[00:08:20] Speaker 02:
This wasn't teed up, for example, the way it was in the Pacific Coast building case where the move-in defendant

[00:08:26] Speaker 02:
had an expert that put together a whole story about why there were different methods.

[00:08:33] Speaker 02:
So this came in, I think, as part of the reply, but it really has nothing to do with Ball's theory or the district court's decision, which is based entirely on Chaim's own past testimony.

[00:08:44] Speaker 02:
Now, reflecting on the testimony of Ball's expert with respect to non-infringement, Ball's expert says that,

[00:08:52] Speaker 02:
What you need to look for is a deflection in the angle of the cannon wall.

[00:08:55] Speaker 02:
Well, it's the same point of view that Ball advanced during claim construction unsuccessfully.

[00:09:01] Speaker 02:
But by the way, in Mr. Hyam's reply report, when he responded on this, he said, well, when I look for a deflection of the angle in the wall, I'm looking for when the curved wall becomes straight.

[00:09:13] Speaker 02:
And when he did that analysis, which is in his reply expert report, he reached the exact same point

[00:09:20] Speaker 02:
lower point as he reached using the method he had used in his opening report.

[00:09:30] Speaker 02:
Does that address your Honor's concern?

[00:09:33] Speaker 04:
Well enough for now, thanks.

[00:09:37] Speaker 02:
I would like to touch on the question of materiality and the burden of proof, continuing on what the Court just raised.

[00:09:46] Speaker 02:
It falls burden here to present

[00:09:48] Speaker 02:
something more than hypotheticals and something that matters in the real world.

[00:09:52] Speaker 02:
And when you look at the indefiniteness cases that played out post-Nautilus and even pre-Nautilus, going back to Honeywell, what the court looks for is, is there a showing here that this supposed difference matters?

[00:10:08] Speaker 02:
And it has to be that way because Nautilus left us with this reasonable certainty standard that didn't tell you what's reasonable and what's unreasonable.

[00:10:16] Speaker 02:
And materiality, the concept of whether the difference matters is the way in which to map reasonable certainty onto a particular art in a particular field involving particular patents.

[00:10:30] Speaker 02:
And that's what we, that's what the district court did wrong and that's what we'd ask this court to correct.

[00:10:35] Speaker 02:
It's to require, it's to require the district court to look for that materiality proof which Ball didn't offer.

[00:10:44] Speaker 03:
Mr. Murphy, this is Judge Chen.

[00:10:46] Speaker 03:
Before you go, could you just give me some concrete example of what you think the other side would need to do in a remand to establish that the outcomes would be different applying these various methods, assuming for the moment that there were, in fact, various methods espoused by HIOM?

[00:11:12] Speaker 02:
I'm hesitant to give ball ideas, Your Honor, but I suppose I would look to the cases where that was proven successfully.

[00:11:22] Speaker 02:
And though I know it's a non-precedential case, I found the Pacific Coast building case to be fairly taking and a good explanation of how an expert, it would be balls expert in this case, would say, well,

[00:11:33] Speaker 02:
I'm going to take methods.

[00:11:36] Speaker 02:
I'm going to assess a certain number of methods.

[00:11:38] Speaker 02:
I'm going to prove that those methods would have been adopted by skilled artisans.

[00:11:42] Speaker 02:
There's some reason why a skilled artisan would have adopted one of those methods or considered it.

[00:11:47] Speaker 02:
And I'm going to prove that it makes a difference.

[00:11:49] Speaker 02:
I'm going to apply it in a real world situation.

[00:11:52] Speaker 02:
I don't know, it doesn't necessarily have to be infringement.

[00:11:55] Speaker 02:
Materiality can take different forms depending on the issue.

[00:11:57] Speaker 02:
But I'm going to apply it in a real world situation and prove

[00:12:01] Speaker 02:
that there is a lack of reasonable certainty, and then Crown would get the opportunity to respond, and then that would be resolved, and those factual disputes would be resolved by a jury.

[00:12:10] Speaker 02:
If it's accessible to the court, I'd like to reserve my remaining time.

[00:12:16] Speaker 00:
You may do that.

[00:12:26] Speaker 00:
Thank you.

[00:12:26] Speaker 00:
Counsel, are you ready to proceed?

[00:12:27] Speaker 01:
Yes, I am, Your Honor.

[00:12:29] Speaker 01:
Thank you.

[00:12:31] Speaker 01:
Your Honor, if I could please court, I'd like to jump straight to the question that Judge Toronto posed to Mr. Murphy and direct the court's attention to a couple of particular places in the record where the materiality of this ambiguity and uncertainty that Judge Rice recognized is quite clear.

[00:12:56] Speaker 01:
They are respectively the fact that using the change in direction test in the AB case with the accused end in that case, the Anheuser-Busch LOF plus end, Mr. Hyam calculated the angle in that case at 45 degrees using the location that he picked with that test for the lower point.

[00:13:21] Speaker 01:
He measured exactly the same end in

[00:13:25] Speaker 01:
our case below for secondary consideration purposes.

[00:13:29] Speaker 01:
So he took the same end and he measured it again to try to show that it practiced the claims that were being asserted and it fell within them.

[00:13:39] Speaker 01:
And those, the side by side, those two analyses appear on page 40 of our blue brief on the left side.

[00:13:47] Speaker 01:
And in one of these images... Your red brief?

[00:13:51] Speaker 01:
Yes, I'm sorry, Judge, of our red brief.

[00:13:53] Speaker 01:
of our brief.

[00:13:56] Speaker 01:
I'm a little colorblind today on the phone, I guess.

[00:13:59] Speaker 01:
But if you look on page 40 of our brief, on the left side is the analysis that he did in the AB case, and on the right side is his analysis of exactly the same end in our case.

[00:14:11] Speaker 03:
Okay, so one is 45 degrees and the other is 48 degrees?

[00:14:14] Speaker 03:
Yes, Your Honor, and I would note that... And so the same can would end up infringing the asserted claim.

[00:14:22] Speaker 01:
Some of the asserted claims.

[00:14:24] Speaker 01:
One of the asserted claims is claim 54, and that has a claim range from 40 to 45.

[00:14:31] Speaker 04:
So if using the analysis... But that's the only one.

[00:14:35] Speaker 04:
There are only three claim ranges, right?

[00:14:37] Speaker 04:
There's 20 to 60, 30 to 60, and 40 to 45.

[00:14:43] Speaker 04:
So it could be indefinite for purposes of claim 54, but not the others.

[00:14:50] Speaker 01:
Well, if the only claim were claimed, the others, a 20 to 60 claim, it would be a harder argument and I'd get to the second example I'm going to give you.

[00:14:59] Speaker 01:
But the same claim language, the very same term, cannot be indefinite with respect to one claim and the other because of the particular nuances of the accused product.

[00:15:09] Speaker 04:
I was wondering about that and I guess the answer is not perfectly clear to me, but why shouldn't that

[00:15:20] Speaker 04:
be the case if you had essentially a difference that was immaterial for purposes of claim one, but quite material for purposes of claim two.

[00:15:33] Speaker 04:
Why should that disparity not be reflected in the conclusion?

[00:15:39] Speaker 01:
It's not so much that the difference is or isn't material for one claim or another.

[00:15:43] Speaker 01:
It is that this particular end

[00:15:45] Speaker 01:
would infringe under one and not the other.

[00:15:48] Speaker 01:
It is just as ambiguous.

[00:15:51] Speaker 01:
And as Your Honor was posing the question to Mr. Murphy, you noted that it wasn't just a question of would the accused end infringe in one case versus the other case.

[00:16:03] Speaker 01:
It was a question of, it goes to the heart of the public notice requirement that pervades all the indefiniteness cases and the Supreme Court's decision in Nautilus.

[00:16:14] Speaker 01:
That it isn't just a question of whether this defendant, post hoc,

[00:16:20] Speaker 01:
did or did not fall within that range.

[00:16:23] Speaker 04:
I agree with that.

[00:16:25] Speaker 04:
I think that is very clearly not the standard.

[00:16:28] Speaker 04:
But if it were the case that all candy manufacturers would look at the range of possible methodologies for choosing the lower point and therefore defining the line and say every one of them falls between 35 and 50.

[00:16:47] Speaker 04:
At that point,

[00:16:51] Speaker 04:
Who cares about the uncertainty for a claim that's 20 to 60 or 30 to 60?

[00:16:58] Speaker 01:
Your honor, I would point to at least two cases that squarely preclude that result.

[00:17:03] Speaker 01:
The first is this court's Amgen case where, and that is where, and the technology there challenges me, but there was an artificial protein

[00:17:19] Speaker 01:
that had to differ from the naturally occurring human one, and there were multiple ways to measure that.

[00:17:26] Speaker 01:
And the patent owner, plaintiff, expert showed that at least the way he calculated it, it would infringe under either, and this court found that that did not matter for the very reasons that I was just talking about, that there's a notice

[00:17:43] Speaker 01:
and the requirement here there's a notice purpose so that those who are trying to design around have some reasonable certainty and in AMGEM it didn't even matter.

[00:17:53] Speaker 01:
I would also note although this is not, it wasn't called out as being relevant to materiality like in AMGEM, it wasn't.

[00:18:01] Speaker 01:
I would note Your Honor that we addressed AMGEM at some length in our brief and Crown's reply brief does not mention the case once.

[00:18:09] Speaker 01:
But the other point I would make Your Honor is I believe in the

[00:18:13] Speaker 01:
in the Teva case itself where the range was from between five and nine megadultons or microdultons, I apologize, it was dultons.

[00:18:25] Speaker 01:
And there in the Supreme Court decision and explaining the facts, the court noted that on the different tests, the results would be, I think they were six, seven, and about eight, but the tests were all within the range and the court did not consider that.

[00:18:44] Speaker 01:
problematic either, because the test articulated clearly in Teva at the Supreme Court and Dow and Teva on remand isn't whether they do in a particular case or even whether they do in a particular product, it's whether they can.

[00:19:02] Speaker 01:
Teva and Dow, those opinions post-Nautilus, post-Teva Supreme Court, both talk about it might or it could, and that is nowhere near

[00:19:13] Speaker 01:
the standard that Crown would impose, which is that we have to prove that it actually wouldn't infringe under one.

[00:19:21] Speaker 01:
But for that, Your Honor, I would direct your attention to the specific page of the record that Your Honor pointed out, 6672 in the appendix, and that is, in fact,

[00:19:33] Speaker 01:
from the infringement report of our expert, and it does show that, and he cautioned that he found all these indefinite, but trying as best he could to use the least indefinite or such, he on the accused end would put the second point way down in the bottom.

[00:19:52] Speaker 01:
very, very far below the center panel, which does get it below 30 degrees.

[00:19:58] Speaker 01:
So there's even more of the claims that are asserted here that we would be outside of using the change in angle test.

[00:20:09] Speaker 01:
And to the extent that when we put several examples of the alternatives in our brief, and I'm finding that page, I think it's our brief

[00:20:20] Speaker 01:
at page 39 where we put sort of four of them there, of those four, I'm sorry, it's on page 36, of those four, the one on the upper right is Mr. Hyams where he puts it automatically across from the center panel, his current test, and the one immediately below it is our expert, Mr. Gillespie,

[00:20:41] Speaker 01:
where he would put it using the change in geometry test, and it's a decided difference.

[00:20:46] Speaker 01:
I would also note, Your Honor, with respect to can it be invalid for one claim but not another, a couple of additional points.

[00:20:54] Speaker 01:
First, in this very case, there were substantial 102 and 103 validity questions.

[00:21:01] Speaker 01:
with respect to the various claims, and how big the angle was in the prior art is very disputed.

[00:21:07] Speaker 01:
In fact, that was how... This is Judge Chen.

[00:21:11] Speaker 03:
Getting back to your Red Brief page 36 and the four photos, could you identify for me which test is being used for each photo?

[00:21:22] Speaker 01:
The one on the upper right is Mr. Hyam across the center panel.

[00:21:29] Speaker 01:
The one below it

[00:21:30] Speaker 01:
corresponds to our expert using, in essence, a change in direction test, although he words it slightly differently, but largely that.

[00:21:41] Speaker 03:
Is that the AB change in geometry test?

[00:21:45] Speaker 01:
No, well, yes, I think it fits within that test, yes, Your Honor, the change in direction, change in geometry, that he found that coming down the left side, the only place where you can discern a change in the shape of that cross section is down where he puts the red dot down in the bottom.

[00:22:05] Speaker 01:
What about the other two photos?

[00:22:06] Speaker 01:
The one on the left, those are more for example, Your Honor, the one on the left

[00:22:13] Speaker 01:
would make it directly across.

[00:22:15] Speaker 01:
There's two on the left.

[00:22:17] Speaker 01:
Oh, I apologize.

[00:22:18] Speaker 01:
The lower one on the left.

[00:22:19] Speaker 01:
I'm sorry, Your Honor.

[00:22:20] Speaker 01:
The lower one on the left would take it across from the upper portion of the U. So if one tried to sort of salvage definiteness here by using the definition of the ARB as U-shaped, that's as far as it goes on the inside, looking like a U, and that would take it across it.

[00:22:40] Speaker 01:
And the one upper left

[00:22:42] Speaker 01:
would, since the entire shape below the blue dot is the cannon wall, the first change in direction is where the red one is.

[00:22:51] Speaker 01:
And that gives you a decidedly different range.

[00:22:54] Speaker 01:
Now I, you know, that's a test that wasn't before the court, but, or that's an implementation of the change in direction court, a test that wasn't before the court, but it's equally plausible.

[00:23:06] Speaker 01:
And that's, that's what I think Judge Rice correctly found.

[00:23:10] Speaker 01:
But what I was going to mention a second ago, Your Honor, is that these same rules apply in settings where there is no accused product.

[00:23:20] Speaker 01:
Examiners have to grapple with them, the PTAB has to grapple with them, post-grant review indefiniteness can come up, and indefiniteness cannot depend on the specifics

[00:23:32] Speaker 01:
of a particular end that happens to be accused, or frankly, and in the definite term, could be salvaged by simply picking which claims they want to accuse.

[00:23:44] Speaker 01:
The claim 54 that has the angle of 40 to 45 is frankly the one that is the most difficult for us to take on under 103, and they know that.

[00:23:53] Speaker 01:
But the claims to drop down to 20 degrees and have a 20 to 60 degree

[00:23:58] Speaker 01:
range.

[00:24:00] Speaker 01:
Your Honor, those are, we believe, unlikely to make it to trial or withstand a challenge to any judgment that came on them because the prior art is loaded with angles that are in the 20s.

[00:24:14] Speaker 01:
So that's for all of those reasons, Your Honor.

[00:24:17] Speaker 01:
One, there is no authority that we can see where anyone has ever

[00:24:23] Speaker 01:
lost in invalidity challenge as to one claim but not the other simply because of the that the range differs between the claims and to if that were to be the law is crown seems to suggest that that really would create a whole lot of fundamental ways in which that indemnity law would would violate the supreme court's emphasis on fair notice and reasonable certainty as to whether one infringes or doesn't

[00:24:56] Speaker 03:
Let me understand.

[00:24:58] Speaker 03:
Your argument is if claim 54 is indefinite, then claim 50 also has to be indefinite?

[00:25:05] Speaker 01:
Yes, Your Honor.

[00:25:06] Speaker 01:
It's the same claim language that is in both, and it can affect the outcome in that one.

[00:25:15] Speaker 01:
It clearly can in claim 30.

[00:25:19] Speaker 03:
I guess what I'm wondering is why would a claim that

[00:25:25] Speaker 03:
claims a narrower range and is deemed invalid necessarily result in another claim that has a broader range?

[00:25:38] Speaker 01:
Because it's the claim term itself.

[00:25:41] Speaker 01:
It's not the range that makes it invalid, it's the location of the point.

[00:25:46] Speaker 01:
that makes it invalid is the methodology for determining the bottom point that then gives you the hypothetical line that you measure the slope of to determine whether it's inside or outside.

[00:25:57] Speaker 03:
I understand the entire purpose of locating the point is so that you can determine the angle range, right?

[00:26:09] Speaker 03:
There's no other purpose.

[00:26:11] Speaker 01:
Your Honor, it's John Lucan again, and I think I was near the end of my time when that last question was posed.

[00:26:17] Speaker 01:
Sure thing.

[00:26:17] Speaker 03:
Let me just quickly repeat the question to make sure everybody here heard the question.

[00:26:25] Speaker 03:
The question is, what the purpose of the claim limitation for the second point, as I understand it, is it's a means for

[00:26:41] Speaker 03:
determining what the claim angle should be for a hypothetical straight line between the recited first point and the second point.

[00:26:50] Speaker 03:
And there's no other real purpose for the recitation of that second point in the claim.

[00:26:55] Speaker 03:
In other words, the claim is offering a methodology for determining how do you get to the claimed angle range.

[00:27:05] Speaker 03:
And there's no other purpose behind the definition of the second point.

[00:27:11] Speaker 03:
I guess what I'm trying to understand is why isn't our focus properly placed on figuring out whether you can reasonably ascertain what the claimed angle is for any product, as opposed to more narrowly focusing on what is the most proper and appropriate and precise selection of that second point.

[00:27:38] Speaker 01:
Okay.

[00:27:39] Speaker 01:
Thank you, Judge.

[00:27:41] Speaker 01:
First, the lower point is primarily it's here to allow the measurement of this angle.

[00:27:48] Speaker 01:
There's no question about that.

[00:27:50] Speaker 01:
But the point I was trying to make, Your Honor, is that we now have of record and Judge Rice recognized that it matters with respect to the accused end or the LOF end.

[00:28:05] Speaker 01:
It matters for claim 54.

[00:28:07] Speaker 01:
For the accused end, the selection of tests matters at least down to the 30 degree claim.

[00:28:13] Speaker 01:
So it's all but the 20 to 60.

[00:28:18] Speaker 01:
Your Honor, I don't think there's a case anywhere that suggests that we had to put on an evidentiary proof that someone in the world was contemplating or could have contemplated

[00:28:28] Speaker 01:
a change to that end that is on Appendix 66-72, the one from our experts report, that would take it even farther below 20.

[00:28:37] Speaker 01:
But if someone wanted to make that design change, they certainly are entitled to know how to measure whether they're at 18 or 22 or 25.

[00:28:47] Speaker 01:
That's the whole point of Nautilus and of Teva.

[00:28:51] Speaker 04:
And there is no... Can I just ask, because I think the 66-72 puts the thought in my mind,

[00:28:58] Speaker 04:
Um, the district court did not find that that point, that kind of the bottom of the bead would actually, um, come within the claim construction.

[00:29:09] Speaker 04:
I know your expert asserted it, but the district court didn't, um, didn't say so.

[00:29:13] Speaker 04:
And it, I don't know, I guess it seems to me a little bit, um, uh, that there might be some challenge in establishing that that point actually could come within it since, um, nothing to the left of that point would really constitute

[00:29:27] Speaker 04:
one half of the U that's part of the U shape.

[00:29:31] Speaker 01:
Your Honor, I agree that the district court opinion does not specifically call that one out.

[00:29:38] Speaker 01:
The district court followed this court's lead in Dow and in Teba and in Amgen

[00:29:47] Speaker 01:
where the standard it used was whether it could or it might affect the outcome.

[00:29:53] Speaker 01:
And it did it more in principle knowing that as an AMGEM, even if nothing before it did it, would it take it outside of the range, it still said that's enough that in other cases it can make a difference.

[00:30:07] Speaker 01:
Same thing with the molecular weight in TEVA where they all fell within the five to nine range.

[00:30:13] Speaker 01:
this court said it could or it might change it.

[00:30:15] Speaker 01:
And I think based on what Mr. Hyam.

[00:30:19] Speaker 03:
Can you point me to where in the district court opinion did the district court do this analysis where he felt convinced that these different methodologies would result in consequential material differences in outcome?

[00:30:39] Speaker 03:
I don't recall him actually pointing to names

[00:30:43] Speaker 03:
specific examples or hard evidence that established that.

[00:30:46] Speaker 03:
He just sort of declared it.

[00:30:52] Speaker 01:
First, he concluded that the test is, as I said, that it could or it might.

[00:30:57] Speaker 01:
On page, I believe it is 33 of the appendix, he said that the test may have different results.

[00:31:05] Speaker 01:
They do not always have the same results.

[00:31:07] Speaker 01:
There's one additional point that Judge Rice did more specifically rely on, and that's the fact that the across from the center panel test that Mr. Hyam uses gives you a different result than the test that is in, it's not a test, than the result that is articulated in the patent.

[00:31:29] Speaker 01:
where it says the height of the reinforcing bead is H4 so that that places it below where Mr. Hyam was placing it on the preferred embodiment.

[00:31:37] Speaker 01:
So I think the judge was applying a standard, Judge Rice was applying a standard that read more like Amgen, Dow, and Teva as to whether it in general can affect a critical outcome and given that it could, and he had before him situations where it did,

[00:31:55] Speaker 01:
that would be enough under those cases.

[00:31:58] Speaker 01:
And it would be hard to reconcile requiring more of him as to particulars that an accused end or a hypothetical end that someone else was considering making fell within each of the asserted claims that would run directly contrary to this court's holding in Amgen.

[00:32:15] Speaker 01:
So I think the judge applied the standard that way.

[00:32:18] Speaker 01:
So he may not have cited all of the record evidence that was before him that underlied that conclusion that it could.

[00:32:27] Speaker 01:
But if this court were to apply the higher standard, the harder standard, and use this case to pivot to that, this is in the intrinsic evidence, and it's in the evidence for the court, and there isn't really a dispute over that.

[00:32:43] Speaker 01:
He calculated them differently.

[00:32:48] Speaker 01:
I think I'm pretty deeply into overtime, so I will conclude unless any of you... Your Honor, based on that, based on the standard, we would ask you that Judge Rice did apply the correct standard to this particular question that we've been discussing.

[00:33:04] Speaker 01:
We would ask you to affirm his decision below.

[00:33:06] Speaker 01:
Thank you.

[00:33:07] Speaker 01:
Thank you, Counsel.

[00:33:19] Speaker 02:
Would the court like Crown to proceed?

[00:33:22] Speaker 04:
Yes, please.

[00:33:23] Speaker 02:
Okay.

[00:33:25] Speaker 03:
Mr. Murphy, could you start with a discussion of Amgen?

[00:33:30] Speaker 03:
One side briefed it, the other didn't, and I'd like to hear your thoughts on it.

[00:33:36] Speaker 02:
Your Honor, I apologize for not having particularly deep thoughts on Amgen because I didn't find it particularly factually analogous.

[00:33:45] Speaker 02:
And I don't think that there was, I didn't see anything in Amgen that contradicted the basic principles that we're trying to advance here, which are that the test is reasonable certainty and that you can't show reasonable certainty unless there is a real world impact of that reasonable certainty.

[00:34:01] Speaker 02:
There's some material sense.

[00:34:03] Speaker 02:
And I think there's a lot of indefiniteness cases out there, you know, including Amgen and some of the others that are in the record here, where the issue simply wasn't raised.

[00:34:13] Speaker 02:
or it was already conclusively conceded.

[00:34:17] Speaker 02:
And so I think I would categorize Amgen in that group of cases where the issue just wasn't raised.

[00:34:24] Speaker 02:
I don't think the holding is contrary to what we're saying here.

[00:34:28] Speaker 02:
I would like to address some of the comments that were made by ball counsel about Claim 54 and just generally with regard to the angle deflection method.

[00:34:40] Speaker 02:
A lot of the discussion that we've had has been

[00:34:43] Speaker 02:
accepting the hypothetical premise that a person of ordinary skill in the art would be reasonably or unreasonably certain as to whether to choose Heim's method or the angle deflection method.

[00:34:57] Speaker 02:
If that's the starting point, then, you know, you can have a discussion about whether there's a material difference there.

[00:35:03] Speaker 02:
But I want to be clear that Crown completely rejects the angle deflection method.

[00:35:08] Speaker 02:
Chaim's own testimony about the angle deflection method, which Ball's motion is based on, says that he wouldn't do it that way.

[00:35:18] Speaker 02:
And that is the evidence in the record reflecting the perspective of a person skilled in the art.

[00:35:23] Speaker 02:
And second, the way that Ball's expert, Mr. Gillest, applied the angle deflection method at 6672 and similar pages in the appendix,

[00:35:33] Speaker 02:
It yields a structure that is not an annular reinforcing bead.

[00:35:38] Speaker 02:
So Crown does not concede that that is a possibility as a designated annular reinforcing bead.

[00:35:43] Speaker 04:
We would- That's the one down at the bottom of the truss.

[00:35:47] Speaker 02:
That's right, Your Honor.

[00:35:48] Speaker 02:
Yeah.

[00:35:49] Speaker 02:
And so it's just simply not, it's not a conceded issue in the slightest.

[00:35:53] Speaker 02:
And if that's what Ball wants to make its case about, well, first of all, it should have premised its summary judgment motion on that.

[00:35:59] Speaker 02:
And if that's the issue it wants to take to trial, then,

[00:36:01] Speaker 02:
then hopefully, you know, we'll have a chance to defend that at trial.

[00:36:05] Speaker 02:
And then finally, just a small nit, but it's an important one with regard to claim 54, is the claim is not 40 to 45.

[00:36:13] Speaker 02:
It's about 40 to about 45.

[00:36:17] Speaker 02:
And there's testimony from Mr. Heim in the record that with respect to the lower wall angle on the samples that he measured, that there is, you know, a several degree variance, manufacturing variance.

[00:36:28] Speaker 02:
And Heim never said,

[00:36:30] Speaker 02:
that the can-end that was measured and shown in his expert report in the AB case was literally the same can-end that was measured in this case.

[00:36:39] Speaker 02:
In fact, it's not, because you can tell that on the face of the record, the can-end from the AB case that's in the appendix is cross-section, cut in half.

[00:36:48] Speaker 02:
Whereas the can-end that is measured in this case for purpose of showing commercial success, because the LOF plus end is licensed,

[00:36:56] Speaker 02:
is a complete end that was measured using, you know, a different type of measurement method.

[00:37:02] Speaker 03:
Mr. Murphy, just real quickly.

[00:37:05] Speaker 03:
Oh, sure.

[00:37:06] Speaker 03:
The photos on page 36 of the red brief, those are images of the accused product, is that right?

[00:37:14] Speaker 03:
Correct, Your Honor.

[00:37:15] Speaker 03:
Just one image.

[00:37:17] Speaker 03:
And are there, is that the only accused product?

[00:37:22] Speaker 02:
At this stage in the case, yes, Your Honor.

[00:37:24] Speaker 03:
Okay.

[00:37:26] Speaker 03:
Do you agree that the lower right-hand corner image is an accurate depiction of the so-called change in geometry test?

[00:37:40] Speaker 02:
I think it's meant to reflect Mr. Gillest, Ball's expert use of the change in geometry test.

[00:37:47] Speaker 02:
I would make the point that when Chaim used the change of geometry test, he got the same point that's shown in the upper right, and that's on 6250,

[00:37:56] Speaker 02:
to 51 of the appendix.

[00:38:01] Speaker 05:
Okay.

[00:38:05] Speaker 02:
Thanks.

[00:38:06] Speaker 02:
If the court has, unless the court has further questions for me, I would ask that the summary judgment be vacated and that this case be remanded for trial.

[00:38:15] Speaker 02:
Thank you.

[00:38:16] Speaker 00:
The matter will stand submitted.

[00:38:18] Speaker 00:
That concludes our oral arguments today.

[00:38:20] Speaker 00:
Thank you.

[00:38:23] Speaker 04:
The honorable court is adjourned until tomorrow morning at 10 a.m.