[00:00:00] Speaker 03:
Our next case for argument 23-1777, Trudell Medical versus G.R.

[00:00:06] Speaker 03:
Burton Health Care.

[00:00:08] Speaker 03:
How do I say your name, counsel?

[00:00:10] Speaker 02:
Laura Liddickson.

[00:00:11] Speaker 02:
Miss Liddickson, please.

[00:00:14] Speaker 02:
May it please the court, I'm going to start with a very brief summary of the case for our law student audience.

[00:00:20] Speaker 02:
This case began in 2018 when my client, Trudel Medical, sued a competitor for infringing its patent for a respiratory medical device.

[00:00:29] Speaker 02:
That case was reassigned to a new judge about three years in and went to trial in November of 2022, where the jury returned a verdict of non-infringement and that the patent was not invalid.

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The reason we're here today is because what happened that trial presents a very clear example of a prejudicial procedural error.

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Specifically, there's no real dispute that the district court permitted DR Burton's expert, Dr. John Collins, to testify on the issue of non-infringement, despite the fact that he had not submitted a timely expert report in the matter.

[00:01:04] Speaker 02:
That error was compounded by the subject matter of his testimony, which included spending considerable time comparing the accused products not to the patent claims, but

[00:01:16] Speaker 02:
to the figures in the patents, and also presenting non-infringement arguments that flatly contradicted the district court's claim constructions.

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But for that error, Trudel Medical would have prevailed in proving infringement of DR Burton's devices, because no reasonable jury, not even one drawing all reasonable inferences,

[00:01:35] Speaker 02:
in the Albertans' favor.

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Could have come to any conclusion.

[00:01:37] Speaker 03:
Here's the problem.

[00:01:38] Speaker 03:
I'm going to start with your last argument here, which is you want us to say that the district court abuses discretion in this trial by admitting expert testimony because that expert testimony violated, among other things, Rule 26.

[00:01:52] Speaker 03:
We'll get to that in a second.

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But the last point you made is, and therefore we should find in your favor.

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The problem is you had the burden of proof.

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And even if they don't put on a defense, you could still lose, right?

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Even if they don't have an expert.

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Even if they don't put on a defense, the jury could find you didn't meet your burden, that your expert wasn't persuasive, that they didn't believe him.

[00:02:16] Speaker 03:
So why is it that instead of a new trial, you think that we ought to decide that in the absence of this prejudicial error, the jury would have 100% found for you there's no question about it, and they couldn't have done otherwise?

[00:02:30] Speaker 02:
I agree with you, Judge Moore, that that is possible.

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But here, the infringement case was very, very straightforward.

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Dr. Durgan presented testimony, which begins at Appendix 2305, and it was accompanied by slides, which you'll find in Volume 3 at Appendix 2857, that show element by element where each element of the asserted claims is found in the accused products.

[00:03:00] Speaker 02:
It's not complicated testimony.

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It's pretty straightforward.

[00:03:03] Speaker 02:
And in denying Trudel's motion for Jamal, what Judge Boyle said was that it was unclear.

[00:03:10] Speaker 02:
But what's striking is that this is a very typical infringement presentation.

[00:03:14] Speaker 02:
There was a cross-examination, though, right?

[00:03:17] Speaker 04:
Yes.

[00:03:18] Speaker 04:
There was a cross-examination of your expert.

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I think there was some focus on the shape.

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whether it was oval or whether it was rectangular.

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There were some elements that were discussed on cross, right?

[00:03:31] Speaker 02:
Most of the cross-examination of Dr. Durgan focused on the issue of invalidity, not on infringement.

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The limitation that you're referring to, Judge Stoll, is the limitation requires that- It's the oblong cross-sectional shape limitation.

[00:03:42] Speaker 02:
Yes.

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And the district court's claim construction was that it required generally rectangular or generally elliptical.

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Dear Burton's argument was that this rectangular shape with rounded corners did not meet that.

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And the argument was that it wasn't a rectangle or an ellipse, but it was generally elliptical and generally rectangular.

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No reasonable jury could have found that that did not meet the claim construction.

[00:04:07] Speaker 02:
Dr. Collins presented.

[00:04:08] Speaker 04:
What standard of review is applied here?

[00:04:10] Speaker 04:
Is it Federal Circuit law on what the standard is for J-MAL, or is it Fourth Circuit law?

[00:04:15] Speaker 04:
This is a procedural question, so it would be under Fourth Circuit law.

[00:04:18] Speaker 04:
And what does the Fourth Circuit say in a circumstance like this, where you carry the burden of proof, what that standard of review would be?

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It has to be that no reasonable jury could have reached a conclusion other than that there was infringement when drawing all reasonable inferences in D.R.

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Burton's favor.

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And here, no reasonable jury could have, given how straightforward this evidence is.

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What if I have a Fourth Circuit case, for example, something called Thornhill, that in the Fourth Circuit, the question is whether the evidence is so overwhelming that we cannot uphold the jury's rejection of Trudell's infringement claim?

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It is overwhelming.

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There was very little evidence on the other side, from the cross or otherwise, even with Dr. Collins' testimony.

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And the only testimony from Dr. Collins

[00:05:02] Speaker 02:
conflicted with the court's claims instructions or applied the incorrect legal standard.

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The other thing about Judge Boyle's denial of the Jamal motion is he says that Dr. Durgan was unclear.

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But he doesn't identify anything about Dr. Durgan's testimony, the manner of him giving it, or any particular limitation for which the presentation was unclear.

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Why don't you move on to the Rule 26 argument?

[00:05:24] Speaker 03:
Why should Dr. Collins not have been allowed to offer testimony?

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Why the court abused discretion?

[00:05:30] Speaker 02:
Yeah, he never submitted an expert report period in this case on the issue of non-infringement.

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But even if you assume that these declarations that I'm sure DR Burton's counsel is going to point to in a few minutes were expert reports, none of them covered the issue of non-infringement.

[00:05:45] Speaker 02:
You're talking about the first two declarations.

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The timely ones, correct.

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What about the final declaration that was submitted as an attachment to the summary judgment motion?

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The summary judgment declaration suffers from multiple problems.

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It was submitted three weeks after the close of all evidence.

[00:06:03] Speaker 04:
Was it a day after you filed your motion in Lemonade?

[00:06:06] Speaker 02:
It was shortly thereafter, I believe, yes.

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And just a couple weeks before trial, there was no opportunity to depose him.

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It is a total of seven pages in length, about five pages of which consisted

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opinions on non-infringement, but they fail to explain the reasons for them.

[00:06:22] Speaker 02:
When you look at the trial transcript, there's nearly 30 pages from him on the topic of non-infringement.

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And what does the Fourth Circuit say about a late expert report?

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Supposing this is an expert report, under what circumstances do we allow it?

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Under what circumstances should it be excluded?

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So a late expert report, the civil rules can be bent if the error in following the rules is either harmless or substantially justified.

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The Fourth Circuit applies a five-factor test to determine whether or not there's substantial justification.

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Here, the error in admitting Dr. Collins' testimony most certainly was not harmless, because it was the only evidence of non-imprisonment in the case.

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And it was very confusing to the jury, we believe.

[00:07:03] Speaker 02:
With respect to those other factors, no one has actually provided an explanation of them, either from the district court

[00:07:10] Speaker 00:
or from D'Arbert's counsel, because- Didn't the district court maybe not say the magic word harmless, but offered some reasoning that, well, you had the declaration ahead of the trial, and you had an opportunity to cross-examine Dr. Collins at trial.

[00:07:27] Speaker 00:
And so therefore, in that way, you both had sufficient notice of the content of Dr. Collins' testimony before he was going to actually testify.

[00:07:38] Speaker 00:
And then likewise, you had the opportunity

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to cross-examine and explore and perhaps undermine whatever his testimony was through cross-examination.

[00:07:49] Speaker 00:
So for those reasons, why wasn't that enough to be able to say, OK, it was late, it was not timely, but it was harmless?

[00:07:57] Speaker 02:
A few things here.

[00:08:00] Speaker 02:
What he said at trial was so much greater than what was at that declaration that there wasn't notice of a lot of it.

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The opportunity to cross-examine him was not a cure-all in this instance.

[00:08:11] Speaker 02:
Counsel, Mr. Linder, who's sitting behind me, is quite talented.

[00:08:14] Speaker 02:
But coming up with a cross-examination on entirely new technical evidence that was presented to trial over the space of a lunch break and having the same benefit of understanding and providing effective cross is just not possible with those constraints.

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The other thing is that the rules

[00:08:29] Speaker 02:
exist to provide notice.

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Our civil system is about getting all the evidence out there, understanding both sides' positions before you go to trial.

[00:08:36] Speaker 03:
And that wasn't the case, sir.

[00:08:38] Speaker 03:
What about their argument that you submitted your infringement expert report just days before the closed discovery and your damages expert report, I think, one day before the closed discovery, so they didn't have time to depose your experts?

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Why isn't there a balancing of all of that?

[00:08:58] Speaker 02:
It's a little bit misleading, that argument that D.R.

[00:08:59] Speaker 02:
Burton makes, because one, district court's order permitted the parties to continue discovery until September 30th.

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Trudel's expert reports were submitted before that deadline.

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And Trudel recognized that this was accelerated.

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This was almost like a preliminary injunction schedule that we were imposed with.

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So there was a conversation going.

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And you can see a record of that in the appendix.

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The earlier emails are actually in volume three.

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Appendix 3566, and then the response is Appendix 2301.

[00:09:29] Speaker 02:
But there was a dialogue between Trudel's counsel and D.R.

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Burton's counsel about how to effectively get the reports done in enough time to allow depositions.

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But D.R.

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Burton's position was, we're not taking these depositions, and we're not submitting any expert reports.

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Then, lo and behold, a couple weeks before trial,

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In comes this declaration that they then rely on this expert report.

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So you're saying they can't claim that they were harmed by your damages expert opinion proffered the day before the close of discovery because they expressly told you they weren't going to oppose them?

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Correct.

[00:09:58] Speaker 03:
So that what's the harm?

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Correct.

[00:10:00] Speaker 03:
OK, what about?

[00:10:01] Speaker 00:
And they also indicated that they weren't going to do an expert report on it.

[00:10:06] Speaker 02:
Correct.

[00:10:06] Speaker 02:
So this came as a surprise just a couple weeks before time.

[00:10:09] Speaker 00:
Before we leave this, you have also an additional reason why to exclude

[00:10:14] Speaker 00:
Collins, and that's because this untimely declaration, should it be treated as an expert report, is just defective in its analysis on infringement, and its methodology is off-base.

[00:10:26] Speaker 00:
Could you just speak to that a little bit?

[00:10:29] Speaker 02:
Yes.

[00:10:30] Speaker 02:
Dr. Collins relies on claim constructions that contradicted the district court's claim constructions.

[00:10:36] Speaker 02:
One of the best ones.

[00:10:37] Speaker 02:
Vane?

[00:10:37] Speaker 02:
Would that be how many vanes?

[00:10:39] Speaker 02:
with respect to the term of vein, and then also with rotate, because the claims required a blocking segment that rotates.

[00:10:47] Speaker 02:
I'm going to start with rotate, because I think that one's even clearer.

[00:10:50] Speaker 02:
But at the claim construction stage, D.R.

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Burton had argued that rotation requires a full revolution, not just moving back and forth, rotating this far.

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And the district court had rejected that and held, neither term nor intrinsic evidence support additional limitations for a full revolution.

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He had a trial, and also in his declaration, Dr. Collins says the segment must go round and round and round.

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And that's Appendix 2528.

[00:11:17] Speaker 02:
So the jury heard that there was no infringement based on requiring a full revolution, even though that was contrary to district court's claim construction.

[00:11:26] Speaker 02:
OK, can you move?

[00:11:27] Speaker 03:
Because you're into your rebuttal time now.

[00:11:29] Speaker 03:
And I would really like you to address this issue.

[00:11:31] Speaker 03:
You've asked us not to send it back to the same district court judge.

[00:11:36] Speaker 03:
that his statements evidence what?

[00:11:41] Speaker 03:
How would you describe why you think this case should be reassigned to a different judge if it is remanded?

[00:11:48] Speaker 02:
Yes.

[00:11:49] Speaker 02:
Judge Boyle was extremely impatient with this case.

[00:11:53] Speaker 03:
But wasn't he, isn't it fair to say he was sort of impatient with both sides?

[00:11:58] Speaker 02:
Yes.

[00:11:58] Speaker 02:
This is not like the first argument you heard today where they were asking for reassignment because of bias.

[00:12:02] Speaker 02:
But it impacted the party with the burden of proof more.

[00:12:06] Speaker 02:
There are probably over 15 interruptions throughout the trial of Trudel's experts' comments about it's a complete disaster with respect to Trudel's mills, about Trudel's background, all of the fluff and puff and advertising.

[00:12:21] Speaker 02:
This was in front of the jury criticizing Trudel's testimony about our product.

[00:12:26] Speaker 02:
The product isn't much.

[00:12:27] Speaker 02:
It's a pretty thin piece of equipment in front of the jury again.

[00:12:29] Speaker 02:
And then to the jury after testimony from one of our witnesses

[00:12:34] Speaker 02:
Is this making any sense to any of you?

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I mean, honestly.

[00:12:40] Speaker 02:
There was even more.

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Do you want to hear any more questions from this witness?

[00:12:43] Speaker 02:
Again, about Trudel's witness.

[00:12:44] Speaker 02:
Is anyone interested in hearing more?

[00:12:46] Speaker 02:
I didn't think so.

[00:12:47] Speaker 02:
Go ahead and ask.

[00:12:48] Speaker 02:
Keep asking.

[00:12:49] Speaker 02:
Brace yourselves.

[00:12:51] Speaker 02:
And then to our counsel, you can't do anything quickly.

[00:12:54] Speaker 02:
It was a barrage of complaints.

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And we submit that this is going to go back to him after six years.

[00:13:00] Speaker 02:
There's no way to cure this.

[00:13:01] Speaker 02:
It really needs to go to a different judge if we're going to have the appearance of justice.

[00:13:04] Speaker 03:
And the kinds of comments that he made, has the Fourth Circuit looked at him in particular making the same kinds of comments in another case?

[00:13:15] Speaker 02:
Yes.

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This is really exceptional because just a few years before this case went to trial, he had another case where he expressed extreme impatience with the case.

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and the Fourth Circuit reassigned to a new judge on that basis.

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And we saw here what happens when it stays with him through trial.

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It wasn't pretty, and we asked that the court reassign.

[00:13:31] Speaker 03:
So when it comes to reassignment, do you think that we should look to the Fourth Circuit law and determine under what standard they would assess reassignment, or do you think that should be a matter of federal circuit law?

[00:13:42] Speaker 02:
It is Fourth Circuit law that governs for reassignment of the judges based on our research.

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And that law applies a three-factor test.

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One of the factors is the appearance of justice.

[00:13:53] Speaker 02:
whether or not there would be a duplication of effort, which there wouldn't be here, because he did not spend much time with this case, and whether the judge would be likely to put the issues out of his mind if he heard the case again.

[00:14:03] Speaker 02:
But again, this case is going to be six years old when it goes back to him.

[00:14:06] Speaker 02:
The same problems are going to make sense.

[00:14:07] Speaker 00:
OK, maybe he just was having a bad day.

[00:14:12] Speaker 02:
That's not what I saw on the record.

[00:14:14] Speaker 02:
This started in August and continued in the pretrial hearing and throughout the trial.

[00:14:19] Speaker 02:
I would like to reserve the remaining time.

[00:14:21] Speaker 03:
Yes, OK, that's fine.

[00:14:24] Speaker 03:
All right, Mr. Allen, please proceed.

[00:14:35] Speaker 01:
Good morning, Your Honors.

[00:14:39] Speaker 01:
Based on the evidence presented to the jury, not the court, decided that there was no infringement.

[00:14:45] Speaker 01:
that evidence presented in its entirety showed that the DR Burton products were entirely different.

[00:14:51] Speaker 03:
But the biggest question here is, should some of that evidence have been presented to the jury, or did the district court abuse its discretion?

[00:15:00] Speaker 03:
when he allowed Dr. Collins to testify.

[00:15:03] Speaker 01:
Yes, Your Honor.

[00:15:04] Speaker 03:
So what is your argument for why it's not abuse of discretion?

[00:15:08] Speaker 01:
Well, Your Honor, it's not abuse of discretion.

[00:15:11] Speaker 01:
Basically, the reason was, and we talked to that briefly, the district court determined that, number one, everything was running late.

[00:15:24] Speaker 01:
We had a meeting with counsel for the other side of the telephone conference, and we said we don't have time.

[00:15:31] Speaker 01:
They had a month to take a deposition of Collins if they wanted to.

[00:15:35] Speaker 01:
They took four other depositions at that time, but chose not to take a deposition.

[00:15:39] Speaker 03:
No, no.

[00:15:40] Speaker 03:
They weren't taking depositions after they got his expert report attached to the summary judgment.

[00:15:46] Speaker 03:
If I call that declaration an expert report, there were no depositions taking place after that discovery closed.

[00:15:52] Speaker 01:
That's true, Your Honor.

[00:15:53] Speaker 03:
And he did not testify to non-infringement in his earlier declarations.

[00:15:57] Speaker 03:
So they could not have asked him questions at his deposition about an opinion he didn't offer.

[00:16:07] Speaker 01:
And that was a predicate for infringement.

[00:16:10] Speaker 01:
They questioned him about the definition of the vane, which is that really a vane.

[00:16:15] Speaker 03:
Yes, that's claim construction.

[00:16:16] Speaker 03:
And they questioned him about validity.

[00:16:17] Speaker 03:
Sure.

[00:16:18] Speaker 03:
Yes.

[00:16:18] Speaker 03:
Because those were the expert opinions he offered on claim construction and validity.

[00:16:21] Speaker 03:
He offered no opinion on non-infringement.

[00:16:26] Speaker 01:
That's correct, Your Honor.

[00:16:27] Speaker 01:
Neither did Dr. Durgan.

[00:16:31] Speaker 01:
And the damages expert did not offer an opinion until the day before.

[00:16:36] Speaker 04:
But it was during discovery, right?

[00:16:38] Speaker 04:
Those opinions were out during discovery, and you made a strategic determination not to provide expert reports, right?

[00:16:45] Speaker 01:
We made a determination that we did not have time.

[00:16:48] Speaker 01:
provide an expert report.

[00:16:49] Speaker 01:
We were very straightforward with the opposing counsel and told them that.

[00:16:53] Speaker 01:
And we told them that Dr. Collins would still be testifying.

[00:16:56] Speaker 01:
They could have taken it.

[00:16:57] Speaker 01:
The expert reports that they provided.

[00:17:00] Speaker 04:
But what did you tell them that he would be testifying about?

[00:17:03] Speaker 04:
It wasn't until after discovery that you let them know that he would be testing about infringement, right?

[00:17:10] Speaker 01:
No, Your Honor.

[00:17:11] Speaker 01:
I do not believe that's true.

[00:17:12] Speaker 01:
I believe we tested.

[00:17:15] Speaker 01:
I don't see anything in the record that indicates that.

[00:17:23] Speaker 01:
The point being was that he was willing to testify.

[00:17:27] Speaker 01:
He did testify, as did Dr. Durgan, as did Mr. Hoffman on damages.

[00:17:34] Speaker 01:
Those reports were provided one week before discovery.

[00:17:37] Speaker 00:
But we need to focus on the issue at hand that's been raised by the appellant.

[00:17:43] Speaker 00:
whether it was appropriate for Dr. Collins to testify as to infringement, not on validity or any other issue, but just the infringement issue when that declaration that he submitted would be an untimely expert report.

[00:17:59] Speaker 01:
Well, Your Honor, it was a response to the motion for summary judgment.

[00:18:03] Speaker 00:
I think we were clear that... Right, but that doesn't give you a free ticket to allow Dr. Collins to testify.

[00:18:11] Speaker 00:
when Dr. Collins did not file an expert report during the discovery window.

[00:18:17] Speaker 01:
That is correct, Your Honor.

[00:18:18] Speaker 01:
And our position was that neither did Dr. Durgan.

[00:18:22] Speaker 00:
But we're just right now, for purposes of this appeal, focused just on Dr. Collins and specifically his non-infringement testimony.

[00:18:32] Speaker 00:
And whether it was right or wrong, was it an abusive discretion for the district court to go ahead and allow him to testify when, number one,

[00:18:41] Speaker 00:
If we want to consider the declaration as an expert report, we want to interpret it that way.

[00:18:47] Speaker 00:
It was way out of time.

[00:18:48] Speaker 00:
Second, it appears to me that the content of that declaration is not only conclusory, but it's defective in its analysis of looking at the patent versus the accused product, because Dr. Collins wasn't actually working his way through the claims and mapping the claims to accused product.

[00:19:07] Speaker 00:
He was mapping embodiments disclosed in the patent.

[00:19:10] Speaker 00:
to the accused product.

[00:19:12] Speaker 00:
And that's not the way you do an infringement analysis.

[00:19:16] Speaker 00:
Yes, Your Honor.

[00:19:16] Speaker 03:
OK, so wait, let me just, I meant, Judge, Shen pointed out two problems.

[00:19:19] Speaker 03:
I'm going to add a third, so you're going to have to get through all of them.

[00:19:23] Speaker 03:
In addition, if we treat this as an expert report, it didn't meet the requirements of Rule 26.

[00:19:28] Speaker 03:
It didn't articulate the reasons and bases upon which he relied.

[00:19:32] Speaker 03:
So you have a deficient expert report, both because it's untimely, because it doesn't meet the disclosure requirements of 26,

[00:19:38] Speaker 03:
and, according to Judge Chan's question, because it may have some flawed methodological problems.

[00:19:44] Speaker 03:
So go ahead.

[00:19:45] Speaker 03:
Tell us why that should be allowed in.

[00:19:48] Speaker 01:
Your Honor, we believe that Dr. Collins' three declarations addressed what he was going to talk about at trial.

[00:19:57] Speaker 01:
Under the use of discretion standard that the court needs to follow, there was no surprise to the party.

[00:20:05] Speaker 01:
We indicated them ahead of time.

[00:20:06] Speaker 01:
They had an opportunity to review it.

[00:20:11] Speaker 01:
There was importance of the evidence at hand.

[00:20:14] Speaker 01:
Although not necessary, it was certainly an important part of the case, but also Mr. Lau testified.

[00:20:20] Speaker 04:
Do you agree that there were things that he talked about with respect to infringement that were not included in the declaration that was filed late with the summary judgment response?

[00:20:36] Speaker 01:
Yes, Your Honor.

[00:20:37] Speaker 01:
He basically was asked to talk about the product.

[00:20:41] Speaker 04:
So you're saying the testimony that he presented at trial went beyond the scope of the alleged expert report, right?

[00:20:50] Speaker 01:
Some of it went beyond in response to trying to explain how the product worked, what the patent covered, why the patent itself requiring one vein

[00:21:03] Speaker 01:
would not result in a product that worked.

[00:21:05] Speaker 04:
Do you agree that he compared the accused product to the figures in the patent as part of his non-infringement methodology?

[00:21:16] Speaker 01:
He compared the patent to the figures, but the figures... No, no, the accused product to the figures, not the patent.

[00:21:23] Speaker 01:
He compared the accused product to the claims in the patent.

[00:21:28] Speaker 04:
He did talk about... Did he compare...

[00:21:30] Speaker 04:
the accused product to the figures in the patent?

[00:21:34] Speaker 01:
Your Honor, I don't recall that he did.

[00:21:36] Speaker 01:
He talked about the figures in the patent and why.

[00:21:41] Speaker 00:
Let's assume for the moment we conclude he definitely was comparing the figures of the patent to the accused product.

[00:21:50] Speaker 00:
So now we have a problem because his opinion is based on the wrong way to analyze infringement.

[00:22:00] Speaker 00:
What do we do then?

[00:22:01] Speaker 01:
Well, Your Honor, there is still evidence of why there was not an infringement.

[00:22:07] Speaker 01:
There was credibility issues.

[00:22:09] Speaker 00:
OK, so then you would accept the idea, then we would find it's an abuse of discretion.

[00:22:16] Speaker 00:
to permit Dr. Collins to testify.

[00:22:19] Speaker 01:
No, Your Honor.

[00:22:20] Speaker 01:
I don't accept that.

[00:22:21] Speaker 01:
My position is that, judging by the standards in the Fourth Circuit, you are to give the district court wide latitude.

[00:22:29] Speaker 01:
The district court understood what was going on with the timetable and the compression to get to trial.

[00:22:39] Speaker 00:
Let's shortcut this.

[00:22:40] Speaker 00:
Let's assume for the moment that the court decides there was an abuse of discretion.

[00:22:45] Speaker 00:
by the district court to permit Dr. Collins to testify for a whole multitude of reasons.

[00:22:51] Speaker 00:
Where does that leave the case?

[00:22:53] Speaker 00:
How can we avoid sending this back for a new trial?

[00:22:59] Speaker 01:
I think there was sufficient evidence for the jury to find non-infringement even without Dr. Collins' testimony.

[00:23:07] Speaker 01:
And what is that evidence?

[00:23:09] Speaker 01:
That evidences is Mr. Lau testified that it was completely different, that evidence was that the product.

[00:23:17] Speaker 03:
But part of the problem is Mr. Lau's testimony, which I just read, it's at 2503.

[00:23:21] Speaker 03:
It's only a page in length.

[00:23:23] Speaker 03:
And all he says is that he thinks there's a day and night difference between the patented invention and the product.

[00:23:31] Speaker 03:
Like, that's it.

[00:23:32] Speaker 03:
That's the full extent of his testimony.

[00:23:38] Speaker 03:
not very detailed or precise.

[00:23:41] Speaker 01:
Yes, Your Honor.

[00:23:42] Speaker 01:
We basically did rely on the testimony of the expert.

[00:23:47] Speaker 01:
The court allowed the expert to come in.

[00:23:50] Speaker 01:
We felt like the expert would give the best explanation of why there was no infringement, why the patent passed.

[00:23:58] Speaker 04:
But if there's no expert infringement, what other testimony do you have that would be sufficient evidence on non-infringement?

[00:24:07] Speaker 01:
Well, there is none, Your Honor, because we made a decision at that point to rely on the testimony of the expert and did not go and bring in other individuals who could have testified.

[00:24:19] Speaker 00:
OK.

[00:24:19] Speaker 00:
Next question.

[00:24:20] Speaker 00:
Let's assume for the moment the court concludes we have no choice.

[00:24:26] Speaker 00:
We're obligated to send this back for a new trial.

[00:24:30] Speaker 00:
What position do you have on reassigning this case to a new trial judge?

[00:24:36] Speaker 01:
Your Honor, the position we have on that is that it should not be reassigned to the new judge.

[00:24:42] Speaker 01:
When you look at the idea of the characteristics you're taking into account, there's no evidence that the original judge rashly would expect to have difficulty.

[00:24:55] Speaker 00:
Are you familiar with the Fourth Circuit opinion beach marked?

[00:24:58] Speaker 01:
Yes, Your Honor.

[00:24:59] Speaker 00:
OK.

[00:25:00] Speaker 00:
Aren't there a collection of quotes that the Fourth Circuit relied on?

[00:25:05] Speaker 00:
From this judge that closely paralleled to similar statements that Judge Boyle made in this particular case?

[00:25:16] Speaker 01:
Well, Your Honor, the difference was I believe that was a summary judgment motion that he basically said we were too going to take care of that and do that.

[00:25:24] Speaker 01:
In this case, he allowed it to go to trial.

[00:25:26] Speaker 01:
He let the jury decide whether or not there was a finding of infringement.

[00:25:33] Speaker 01:
So he went forward.

[00:25:38] Speaker 00:
If the statements really are very similar to the point where it's almost a mirror image of the very statements he made in the Beachmark case, wouldn't it look peculiar if we were to go the other way

[00:25:53] Speaker 00:
from what the Fourth Circuit did.

[00:25:54] Speaker 00:
I mean, you have to apply Fourth Circuit law here on whether to reassign to a new trial judge.

[00:26:01] Speaker 01:
There's two issues with that, Your Honor.

[00:26:04] Speaker 01:
First of all, like I said, he allowed it here.

[00:26:06] Speaker 01:
He allowed it to go to the jury.

[00:26:08] Speaker 01:
Second of all, this is the first of, right now, two cases.

[00:26:12] Speaker 01:
And as of four weeks ago, probably a third case that is going to be brought by Trudel against a DR Burton.

[00:26:22] Speaker 01:
Judge Boyle has an understanding of the technology.

[00:26:27] Speaker 00:
Judge Boyle has those cases?

[00:26:29] Speaker 01:
Well, he has the second case, Your Honor.

[00:26:31] Speaker 01:
It has been stayed pending, the result of your counsel.

[00:26:36] Speaker 00:
OK.

[00:26:36] Speaker 01:
And what about that third case?

[00:26:39] Speaker 01:
There's not a case been filed yet.

[00:26:40] Speaker 01:
What we received from counsel approximately four weeks ago was a notice, a cease and desist notice, and a claim chart, 68-page claim chart with two additional patents.

[00:26:52] Speaker 01:
Which is one of the things that D.R.

[00:26:54] Speaker 01:
Burton was concerned about, that there is essentially this pattern that Judell will be continuing to file new cases until they prevail on one.

[00:27:04] Speaker 01:
And this is a sense in which that's coming to fruition.

[00:27:10] Speaker 01:
And it would be helpful, and I think appropriate, particularly given the last factor, that it does go before the same court.

[00:27:22] Speaker 03:
suggest that you would like us to look at the issue of validity of the patent.

[00:27:28] Speaker 03:
But I see a defect, again, procedural.

[00:27:32] Speaker 03:
You moved under JMAW at the close of the plaintiff's case in chief, but you did not renew that motion at the conclusion of the trial.

[00:27:41] Speaker 01:
Is that accurate?

[00:27:42] Speaker 01:
That's true.

[00:27:42] Speaker 01:
We stand by the substance of it, but in reviewing the case law cited by counsel,

[00:27:48] Speaker 01:
on the procedural differences between Jaymaw at trial and Jaymaw post verdict, we don't have a reasonable basis to oppose their conclusions.

[00:27:57] Speaker 01:
OK.

[00:27:57] Speaker 01:
Thank you.

[00:27:58] Speaker 01:
Thank you for that.

[00:27:58] Speaker 00:
So do you withdraw your cross appeal?

[00:28:01] Speaker 00:
Yes, sir.

[00:28:01] Speaker 00:
OK.

[00:28:08] Speaker 03:
If there's nothing further, it's all right.

[00:28:11] Speaker 03:
Thank you very much, Mr. Allen.

[00:28:27] Speaker 02:
A couple of points.

[00:28:29] Speaker 02:
Mr. Allen spoke a few minutes ago about how there was other testimony that might prove non-infringement, even if Dr. Collins was excluded.

[00:28:37] Speaker 02:
Mr. Lau's testimony is very conclusory and just a very high-level comparison between the overall patent figures and the device.

[00:28:46] Speaker 02:
So that does not suffice.

[00:28:48] Speaker 02:
Trudel respectfully requested the court

[00:28:50] Speaker 02:
grant J-MAL in its favor, because the evidence here under the Fourth Circuit standard, under the Federal Circuit standard, is overwhelmingly showing infringement by the accused products.

[00:28:59] Speaker 04:
Can I ask you, I want to ask you about some cross-examination testimony really quickly.

[00:29:05] Speaker 04:
There was a time when D.R.

[00:29:07] Speaker 04:
Burton's counsel introduced the accused vice and then asked the outlet where the air comes from out of, that's not rectangular, right?

[00:29:15] Speaker 04:
And then Dr. Durgan replied, no, it's not rectangular.

[00:29:19] Speaker 04:
Now, that was fixed on redirect.

[00:29:22] Speaker 04:
But why doesn't that create something that, at a minimum, we could have not caused the jury to not believe your expert such that we need to vacate remand?

[00:29:33] Speaker 02:
Because the claim construction requires generally rectangular.

[00:29:35] Speaker 02:
So the question read out part of the claim construction.

[00:29:38] Speaker 02:
So it's not relevant to the actual construction of the claims about the oblong.

[00:29:42] Speaker 02:
The second point is that particular limitation is only found in claims 9 and 18.

[00:29:47] Speaker 02:
It does not even impact claim 1 and its dependence.

[00:29:50] Speaker 02:
And then, unless there are any further questions, I see my time is nearly expired.

[00:29:54] Speaker 02:
I thank both counsels.

[00:29:55] Speaker 02:
The case is taken under submission.