[00:00:00] Speaker 06: The next case for argument is 24-1523, dynamite marketing versus wall. [00:00:08] Speaker 06: Mr. Snow, whenever you're ready. [00:00:10] Speaker 01: Good morning, Your Honors. [00:00:11] Speaker 01: May it please the Court? [00:00:13] Speaker 01: I mean, I need Ms. [00:00:14] Speaker 01: Jeffrey Snow for the defendant's appellants. [00:00:16] Speaker 05: Would you please stop just a little bit, please? [00:00:17] Speaker 01: My name is Jeffrey Snow for the defendant's appellants, collectively called Sherman. [00:00:21] Speaker 01: This appeal challenges errors that were made in connection with the trial and post-trial motions. [00:00:27] Speaker 01: In light of all of the arguments that are set out in Sherman's briefs, I'm going to point out at least four bases in particular. [00:00:33] Speaker 01: First, reversal should be required based on the intervening change of the legal standard in LKQ. [00:00:39] Speaker 06: Well, that wouldn't be a reversal. [00:00:41] Speaker 06: That would be a vacate and remand. [00:00:45] Speaker 06: We're not throwing this out. [00:00:48] Speaker 06: If we agreed with you that LKQ had some impact on the validity issue here, [00:00:53] Speaker 06: who would vacate and remand it for that analysis to be done under the appropriate standard. [00:00:59] Speaker 01: Yes, Your Honor. [00:01:00] Speaker 06: OK. [00:01:02] Speaker 01: As well as the incorrect jury instruction on obviousness. [00:01:06] Speaker 01: Second, regarding inventorship, either the erroneous submission of this issue of law to the jury should be reversed. [00:01:14] Speaker 01: And if not, the verdict on inventorship should be set aside for lack of substantial evidence. [00:01:21] Speaker 01: Third, regarding [00:01:23] Speaker 01: substitutes or alternatives, which Dynamite would need to support its non-functionality based on acceptable alternatives. [00:01:31] Speaker 01: The existence of acceptable non-infringing substitutes eviscerates its lost profits damages claim, which should be vacated for lack of substantial evidence. [00:01:40] Speaker 01: And fourth, the lower court's erroneous application of law toward Dynamite's attorney's fee should be vacated as an abuse of discretion. [00:01:48] Speaker 06: So let me go back to number two, I think. [00:01:50] Speaker 06: which was that it shouldn't have gone to the jury. [00:01:54] Speaker 06: Our analysis of that issue depends on our first concluding that you have standing to press that issue, correct? [00:02:01] Speaker 01: Yes, Your Honor. [00:02:03] Speaker 06: And is there not an issue of standing since Mr. Cooper is not here? [00:02:07] Speaker 06: And the issue of revendorship was litigated in connection with his case and not yours? [00:02:12] Speaker 01: Well, if cases were joined, Your Honor, that issue was, in fact, litigated at the lower court. [00:02:18] Speaker 01: In this situation, Sherman, [00:02:21] Speaker 01: holds an assignment of Cooper's rights. [00:02:23] Speaker 01: So it has the requisite economic interest in his rights. [00:02:28] Speaker 05: So your understanding is based on your non-protect order, right? [00:02:33] Speaker 01: Yes, that's right. [00:02:34] Speaker 05: Well, under the law, under a Braxis, a non-protect order cannot confer standing. [00:02:43] Speaker 05: That's what a Braxis says. [00:02:46] Speaker 01: Yes, Your Honor, but we're dealing with the fact that this was an issue that was litigated. [00:02:49] Speaker 05: It wasn't litigated. [00:02:51] Speaker 05: There was a show cause order on standing. [00:02:54] Speaker 05: And the judge in his footnote said, I didn't really need to decide that one way or the other because the jury voted standing. [00:03:02] Speaker 05: So you stand in the shoes of Mr. Cooper, correct? [00:03:09] Speaker 01: That is true. [00:03:10] Speaker 05: That's how you're here as a matter of standing. [00:03:14] Speaker 05: as a result of the note protoke assignment from Cooper, do you correct? [00:03:20] Speaker 01: Yes. [00:03:21] Speaker 01: That's the answer. [00:03:22] Speaker 01: Yes. [00:03:22] Speaker 01: That is correct. [00:03:23] Speaker 05: And the law says that a note protoke order, right, doesn't suffice. [00:03:28] Speaker 05: It cannot supply standing. [00:03:32] Speaker 05: In real response to the note protoke, to the show cause order that Judge Brown gave you, you said, oh, well, a praxis doesn't apply. [00:03:43] Speaker 05: That rule doesn't apply. [00:03:45] Speaker 05: Because we're defendants. [00:03:47] Speaker 05: That's what you said. [00:03:49] Speaker 01: Right? [00:03:49] Speaker 05: Remember that? [00:03:49] Speaker 05: Yes. [00:03:50] Speaker 05: Right. [00:03:51] Speaker 05: Well, guess what? [00:03:52] Speaker 05: The case was not decided on the basis of you being a defendant. [00:03:56] Speaker 05: The jury verdict was against Sherman's plaintiff counterclaim. [00:04:05] Speaker 01: Yes, Your Honor. [00:04:06] Speaker 05: Yes, Your Honor. [00:04:07] Speaker 05: So you are standing in the shoes of a plaintiff counterclaimant, Cooper. [00:04:13] Speaker 05: And the law clearly says you do not have standing in that position. [00:04:21] Speaker 01: Yes, Your Honor. [00:04:21] Speaker 01: The issue that we have here is that the finding on invent ship has a negative impact on the claim that Sherman has. [00:04:35] Speaker 05: So what? [00:04:35] Speaker 05: You don't have standing to complain. [00:04:38] Speaker 05: You have to have standing through Sherman [00:04:43] Speaker 05: to challenge any aspect of inventorship. [00:04:48] Speaker 05: Your standing is based on a nil-pro-tunk order. [00:04:52] Speaker 05: You represented, right? [00:04:55] Speaker 05: You represented a Judge Brown, right? [00:05:00] Speaker 05: Under the Federal Rules of Civil Procedure, Rule 11B, you represented and you made a truthful argument. [00:05:05] Speaker 01: Yes. [00:05:05] Speaker 05: In trying to distinguish the braches on the ground that you were just a defendant. [00:05:10] Speaker 05: when, in fact, you're a plaintiff, counter-claim plaintiff. [00:05:17] Speaker 01: Yes, that's right. [00:05:20] Speaker 05: So you don't have standing to make any argument regarding your mentorship. [00:05:28] Speaker 05: And I am gathering you to say you can see that right now. [00:05:34] Speaker 01: Well, our argument is that this was an issue that was decided adversely to Sherman and its claim, and that because it participated in that, it needs to have that issue reconsidered. [00:05:47] Speaker 01: Sherman wasn't here. [00:05:50] Speaker 01: We're Sherman. [00:05:51] Speaker 01: You're talking about, I think you referred to Cooper. [00:05:53] Speaker 05: Cooper is the party. [00:05:55] Speaker 05: You get your rights through Cooper. [00:05:57] Speaker 01: Yes. [00:05:58] Speaker 05: You don't have your rights on your own. [00:06:00] Speaker 05: You get Cooper's rights. [00:06:04] Speaker 05: That's what the lint-pro-tunk order was designed to do. [00:06:09] Speaker 05: But it came too late. [00:06:10] Speaker 05: The law says you can't use a lint-pro-tunk order after the case is filed. [00:06:18] Speaker 01: Yes, Your Honor. [00:06:19] Speaker 01: And as I said, just my argument about that is that because of the fact that it adversely affects Sherman's position, that is something that should be reconsidered. [00:06:28] Speaker 01: But I understand what you're saying. [00:06:30] Speaker 05: Of course it adversely affects, but you can't get to the merits. [00:06:33] Speaker 05: without standing. [00:06:35] Speaker 05: And I just want to caution you. [00:06:37] Speaker 05: You made a representation to a U.S. [00:06:38] Speaker 05: District Court judge that you had a legitimate argument to show why you had standing through Cooper. [00:06:47] Speaker 05: You said it was on the grounds that you were just a mere defendant. [00:06:51] Speaker 05: It wasn't the defendant's case that was tried to the jury. [00:06:55] Speaker 05: In ownership, it was Cooper's counterclaim. [00:06:58] Speaker 05: You look at the charge to the jury. [00:06:59] Speaker 05: You look at the jury verdict. [00:07:02] Speaker 05: Cooper failed to show. [00:07:04] Speaker 05: That's what he said. [00:07:08] Speaker 01: Yes, Your Honor. [00:07:12] Speaker 01: If I may turn back to the issue of obviousness. [00:07:17] Speaker 01: In respect of other arguments, the intervening change in law under LKQ should require remand in this case. [00:07:25] Speaker 01: The jury instruction was to stop if they did not find a primary reference [00:07:29] Speaker 01: under basically the same rule. [00:07:32] Speaker 06: I take your point about the jury instruction. [00:07:34] Speaker 06: But the case, as was litigated on validity, did it really present an LKQ, Durling-Rosen issue about primary reference? [00:07:46] Speaker 01: Well, that was part of the instruction. [00:07:48] Speaker 01: And I believe that all of that was part of what was litigated. [00:07:53] Speaker 01: I'm not sure if I further understand what you're asking about. [00:07:58] Speaker 05: What is your LKQ point? [00:08:02] Speaker 01: That because of the intervening change in law and the jury instruction, they were, the jury was instructed to stop if they did not find a primary reference under the Rosen-Durling test, then they could not reach the, reach a verdict under the proper standard. [00:08:16] Speaker 05: Well, what, what resulted in what, what? [00:08:18] Speaker 05: Clearly, there's the intervening decision. [00:08:21] Speaker 05: There's an entirely different way of assessing obviousness under design patent law. [00:08:26] Speaker 05: Right? [00:08:26] Speaker 01: Yes. [00:08:27] Speaker 05: The case was tried under the old regime. [00:08:30] Speaker 05: The jury was told if you failed, if they didn't present a rose in reference, case is over. [00:08:35] Speaker 05: Don't do anything more. [00:08:37] Speaker 05: And the jury could have decided on that basis. [00:08:39] Speaker 05: So what are you asking for? [00:08:40] Speaker 05: Are you asking for a remand? [00:08:43] Speaker 05: Tried again on? [00:08:44] Speaker 01: Yes, Your Honor. [00:08:46] Speaker 01: Yes. [00:08:47] Speaker 05: It's going to be tried. [00:08:48] Speaker 05: Trial on validity. [00:08:49] Speaker 01: On that issue. [00:08:50] Speaker 05: Yes, Your Honor. [00:08:51] Speaker 05: On 103, yes. [00:08:52] Speaker 01: Yes. [00:08:54] Speaker 06: If we agree with you on that, hypothetically, what happens to the rest of the issues that are before us? [00:09:02] Speaker 06: For purposes of judicial efficiency, do we decide the damages point? [00:09:08] Speaker 06: And even though the verdict, obviously, is displaced if we decide to vacate and remand, [00:09:20] Speaker 06: deal with damages, functionality, the attorney's fees issue, just for the purposes of efficiency, if in fact the jury comes back the same way? [00:09:31] Speaker 01: Yes, Your Honor. [00:09:32] Speaker 01: In this case, there is also the issue of functionality, which we are asserting is a potentially case dispositive issue, because if the patent is found invalid for a functionality, that would resolve the issues and not necessarily require [00:09:46] Speaker 01: a remand for retrial on any of the issues. [00:09:50] Speaker 01: The other thing is that with respect to the monetary awards damages and the attorney's fees awards, we are asking this court to look at that because those can be vacated. [00:10:00] Speaker 01: Those have been fully adjudicated and litigated from the court below. [00:10:06] Speaker 05: But isn't anything just damages? [00:10:07] Speaker 05: You're challenging the infringement verdict as well? [00:10:10] Speaker 01: Yes. [00:10:10] Speaker 05: I believe you didn't say that earlier in your category of issues. [00:10:14] Speaker 05: So assuming, for purposes of argument, that we were to decide that you have no standing to raise in mentorship, period. [00:10:21] Speaker 05: Boom. [00:10:21] Speaker 05: Those issues go aside. [00:10:23] Speaker 05: Assume that we decided, for purposes of argument, that your argument on functionality fails, and that the judge correctly found that the patent is not functional, so that that validity challenge we resolve against you. [00:10:38] Speaker 05: And we vacate and send it back for another trial on obviousness. [00:10:42] Speaker 05: And we say, it will be time enough. [00:10:45] Speaker 05: We do not need to consider infringement. [00:10:47] Speaker 05: We don't need to consider damages or attorney's fees now, because you may well prevail and find the patent is invalid. [00:10:54] Speaker 05: So we save us time, right? [00:10:57] Speaker 05: Don't have to review those. [00:10:58] Speaker 05: If, perchance, you fail and the patent is sustained, you can appeal again and raise the infringement and the damages and the attorney's fees argument then. [00:11:09] Speaker 05: Why do we need to reach, I think this is the question the presiding judge was asking, we need to reach the functionality issue because if we disagree, the patent goes away. [00:11:22] Speaker 05: Other than that, why not save ourselves the time and save you the time and simply deal with, get rid of inventorship, deal with functionality and remand. [00:11:38] Speaker 01: Yes, Your Honor, the efficiencies that would come from vacating the monetary award issues in this case, even if there were a remand and there was a finding that the patent is still valid. [00:11:52] Speaker 01: I'm sorry, that it was invalid. [00:11:56] Speaker 01: To avoid the problem of having to have another damages trial, [00:12:04] Speaker 05: You wouldn't have another damages trial. [00:12:07] Speaker 05: The record is closed on damages, right? [00:12:10] Speaker 05: The validity issue has nothing to do with damages, other than the fact that you don't pay him if you win on 103. [00:12:17] Speaker 01: All right, but in terms of what could happen next once it's back down to the lower court, a decision? [00:12:22] Speaker 06: Since I started this, let me just wrap it up by saying, do you agree that it's in our discretion, that it's the court's discretion to decide whether, for purposes of judicial efficiency, it ought to or ought not to reach those issues? [00:12:36] Speaker 01: Yes, Your Honor, it is. [00:12:37] Speaker 01: And we were asking that the court consider those issues as well while it is here on appeal. [00:12:42] Speaker 06: Thank you. [00:12:43] Speaker 06: You're into your rebuttal, so you want to save the rest of it? [00:12:45] Speaker 01: Yes, Your Honor, I'll save my rebuttal time. [00:12:55] Speaker 03: Committee on this, may it please the Court? [00:13:00] Speaker 03: Initially, I would like to just direct the Court's attention to some places in the record that we didn't have a chance to point out after receiving the reply. [00:13:09] Speaker 02: Council, can you start by telling us whether or not you agree? [00:13:13] Speaker 02: that we need to remand for a new trial on the validity issue in light of LKQ. [00:13:20] Speaker 03: I think your question was, how do I feel about whether LKQ requires a remand? [00:13:25] Speaker 03: Yeah. [00:13:25] Speaker 03: OK, thank you. [00:13:26] Speaker 03: Absolutely not. [00:13:28] Speaker 03: There's arguments all the time about jury charges being incorrect. [00:13:34] Speaker 03: But there's a standard for looking at whether that makes a difference or not, whether it was harmless or not. [00:13:39] Speaker 05: The jury charge here. [00:13:41] Speaker 05: was not based on LKQ, right? [00:13:44] Speaker 05: No, Your Honor. [00:13:45] Speaker 05: No. [00:13:46] Speaker 05: It was based on Rosen-Durling. [00:13:48] Speaker 03: Well, there was different elements to the, to the. [00:13:51] Speaker 05: Well, then you want to go through the jury charge and tell me where it wasn't square on, I mean, Durling and Rosen. [00:13:58] Speaker 03: I think Your Honor's probably pointing to the point where the judge said if you don't find a primary reference, it's basically the same, you stop there. [00:14:06] Speaker 03: The judge definitely said that. [00:14:08] Speaker 05: And the jury [00:14:10] Speaker 05: simply told us that the patent was not invalid. [00:14:15] Speaker 03: Yeah, they did, but based on the evidence that they had in front of them. [00:14:19] Speaker 03: And there was no evidence of any prior art in front of them. [00:14:24] Speaker 03: Fine. [00:14:24] Speaker 05: So they found on the basis of Rosen, right? [00:14:29] Speaker 05: Maybe, but. [00:14:31] Speaker 06: Well, maybe. [00:14:32] Speaker 06: Why isn't that? [00:14:32] Speaker 06: I mean, you said. [00:14:33] Speaker 05: Maybe I didn't get it. [00:14:34] Speaker 05: I'm sure. [00:14:35] Speaker 06: You said, and probably true, that in some circumstances when we see an error in a jury instruction, we assess. [00:14:43] Speaker 06: what impact that had. [00:14:45] Speaker 06: Isn't this in a different bucket? [00:14:47] Speaker 06: This is not just a run. [00:14:48] Speaker 06: We see lots of claims of error in jury instructions. [00:14:52] Speaker 06: This is stating what the law is that the jury has to use and apply in order to determine the question before it. [00:15:01] Speaker 06: This is as fundamental as you can get, is it not, in terms of a jury instruction, which clearly [00:15:08] Speaker 06: had an impact. [00:15:09] Speaker 06: I mean, it may not have been outcome determinative. [00:15:12] Speaker 06: That's why we're not talking about an outright reversal. [00:15:15] Speaker 06: I think we're talking about a retrial of that issue with the correct jury instruction, right? [00:15:21] Speaker 03: Well, I don't think that there's any reason to suggest that the framework for analyzing any wrong jury charge should be any different. [00:15:28] Speaker 03: You have to look as whether it had an effect, possibly had an effect on the outcome. [00:15:33] Speaker 02: And if there was nothing in the jury charge, obviously, that would have had the LKQ stamp, right? [00:15:38] Speaker 03: There was different elements of the jury charge about LKQ. [00:15:48] Speaker 05: Why don't you show us? [00:15:50] Speaker 05: You got it here? [00:15:51] Speaker 05: Show me, would you? [00:15:53] Speaker 05: There's been a lot of general talk in this case. [00:15:56] Speaker 05: The trial judge down below got a little irritated with both of you, right? [00:16:00] Speaker 05: Aren't I correct about that? [00:16:04] Speaker 05: Early on. [00:16:05] Speaker 05: Right? [00:16:07] Speaker 05: And we've got a little 11-day problem here in the first place with one of you guys, so. [00:16:14] Speaker 03: So at APPX 5290. [00:16:17] Speaker 03: What page is it, sir? [00:16:19] Speaker 03: 5290 of the appendix. [00:16:21] Speaker 03: 5290. [00:16:22] Speaker 05: 9290. [00:16:23] Speaker 05: This is the jury chart. [00:16:33] Speaker 03: Yes, Your Honor. [00:16:34] Speaker 05: On 103. [00:16:36] Speaker 03: I believe so, Your Honor. [00:16:37] Speaker 03: I know it is. [00:16:39] Speaker 03: What about it? [00:16:41] Speaker 03: Well, you asked me where I believe the jury charge was close to being appropriate. [00:16:47] Speaker 03: I think this is where it is. [00:16:48] Speaker 02: I don't think that's how we placed it. [00:16:49] Speaker 02: We didn't say close to being appropriate. [00:16:51] Speaker 02: I thought the question that I asked was where does the jury charge LKQ [00:16:57] Speaker 02: And you tell me you're going to show me where. [00:16:59] Speaker 03: Oh, I'm sorry. [00:17:00] Speaker 03: Definitely, I agree that the jury charge said, if you don't find a primary reference that is basically the same, stop there. [00:17:09] Speaker 05: And so you're arguing that, nonetheless, we should still inform the jury verdict? [00:17:13] Speaker 03: Yes, Your Honor. [00:17:14] Speaker 03: Why? [00:17:15] Speaker 03: Because there's never been a case that I could find where anybody has proven obviousness without some piece of prior art. [00:17:22] Speaker 03: And the fact that the defendants do about LKQ [00:17:25] Speaker 03: mentions it to the court in the jury charge, brought it up to the court's attention, asked for an LKQ charge, means that they knew the charge might change, and that the evidence they submitted they believed was appropriate under the LKQ charge. [00:17:41] Speaker 03: They chose to submit no evidence, zero. [00:17:44] Speaker 03: They cannot, as a matter of law, prove obviousness with zero evidence. [00:17:48] Speaker 05: I thought it was a reference to the one card as being a primary reference. [00:17:53] Speaker 05: I'm sorry? [00:17:54] Speaker 05: I thought there was reference to the one card that the 230 patent as being the primary reference. [00:18:01] Speaker 03: There was a reference to the one in the upper corner as a primary reference. [00:18:05] Speaker 03: But no one ever told the jury that any of that was prior art. [00:18:10] Speaker 05: My question is, I thought there was evidence that pointed to that the 230 patent was the closest reference. [00:18:17] Speaker 05: That was what they were pointing to. [00:18:19] Speaker 03: There was no evidence that the 230 patent was prior art. [00:18:23] Speaker 05: The words prior art no evidence is a patent. [00:18:29] Speaker 05: It's a patent. [00:18:31] Speaker 03: The patent wasn't introduced into evidence. [00:18:33] Speaker 03: The cover page of the patent wasn't introduced into evidence. [00:18:36] Speaker 03: The words prior art. [00:18:37] Speaker 06: So there was no prior art before the jury? [00:18:39] Speaker 03: There was no prior art before the jury. [00:18:42] Speaker 03: The words prior art never left the mouth of their expert. [00:18:48] Speaker 03: And they moved nothing into evidence. [00:18:50] Speaker 02: Is there something in the record or pages to point us to so that we could see what you're saying about no prior being reported? [00:18:56] Speaker 03: Yes, of course. [00:18:57] Speaker 02: OK, tell us that page number. [00:19:07] Speaker 03: So I'm going to give you a couple of page numbers. [00:19:10] Speaker 05: Wait, wait a second. [00:19:11] Speaker 05: The judge doesn't say that on your J-mall, right? [00:19:16] Speaker 05: The judge's decision here? [00:19:20] Speaker 02: But go ahead and give me those page numbers. [00:19:21] Speaker 03: All right. [00:19:21] Speaker 03: So a little bit out of order. [00:19:24] Speaker 03: Page 6605, I want to point out, is the last exhibit that's admitted. [00:19:29] Speaker 03: So everything else that came after that was not admitted evidence. [00:19:33] Speaker 03: And that's all the alleged prior art that you're referring to. [00:19:37] Speaker 03: That was not admitted. [00:19:39] Speaker 03: And then there's very short testimony about obviousness. [00:19:44] Speaker 05: There's plenty of discussion in front of the jury about the pocket monkey and the 230 patent. [00:19:49] Speaker 03: That may be true, Your Honor, but nobody said they were prior art. [00:19:52] Speaker 03: And there was no patent introduced into evidence prior art. [00:20:00] Speaker 05: And what's the judge's jamal? [00:20:03] Speaker 05: What section of his jamal deals with the validity? [00:20:08] Speaker 05: What's he say about that? [00:20:10] Speaker 03: I don't have that site in front of me. [00:20:12] Speaker 05: So you don't have the judge's opinion? [00:20:14] Speaker 05: I have it. [00:20:16] Speaker 03: I'm sorry. [00:21:11] Speaker 05: Judge, page 14-15 of the JA, the judge is not talking about the fact that there was no evidence of any prior art cited against the patent for invalidity. [00:21:27] Speaker 05: Okay. [00:21:29] Speaker 05: Expert's opinion, all the experts that expert talked about the prior art. [00:21:39] Speaker 05: So I don't think it's actually illegal for a judge to consider expert sworn testimony about prior art to suffice for the presence of prior art? [00:21:49] Speaker 03: Maybe not, but that's not what happened here. [00:21:52] Speaker 05: There's no evidence in the judge's opinion that he is sustaining the jury verdict on obvious just because there was no prior art cited against the patent. [00:22:04] Speaker 05: That one? [00:22:05] Speaker 05: That's what I'm reading. [00:22:06] Speaker 03: I'm sure. [00:22:07] Speaker 03: I'm not saying wrong. [00:22:09] Speaker 03: But the testimony from Dr. Formosa, which was the obviousness testimony, was at pages 5176 to 877. [00:22:19] Speaker 03: And that's the extent of it. [00:22:21] Speaker 03: It's not a lot of testimony. [00:22:22] Speaker 03: It's easy to read. [00:22:23] Speaker 03: You can see that he [00:22:25] Speaker 03: Whatever he testified would not be enough under any standard to find obviousness because he did not talk about prior art. [00:22:34] Speaker 03: He did not identify any prior art. [00:22:36] Speaker 03: In fact, he did the opposite. [00:22:39] Speaker 03: He suggested that some of the images on his slides were available at Staples right now, which is at 5167. [00:22:48] Speaker 03: So he didn't talk. [00:22:51] Speaker 03: There is no prior art. [00:22:53] Speaker 03: It's an unusual case. [00:22:57] Speaker 02: You mentioned certain pages. [00:22:58] Speaker 02: I don't believe we have you said five one seven six to eight seven at least my book of appendix doesn't have No, we do have five one six seven I just want to make sure I can look at what you're actually trying to point us to you [00:23:23] Speaker 03: I'm sorry. [00:23:24] Speaker 03: I'm going to check that. [00:23:25] Speaker 03: But it's Dr. Formosa's testimony. [00:23:27] Speaker 03: It's very short. [00:23:28] Speaker 03: Let me make sure. [00:23:29] Speaker 05: Oh, so this is Don here, or Formosa. [00:23:31] Speaker 03: It's Formosa. [00:23:33] Speaker 03: And it starts with I want to turn your attention to obviousness. [00:23:41] Speaker 03: I can get it here in a second. [00:23:54] Speaker 05: Okay, here, look, at the top of 5185, here's Dr. Formosa saying, da-da-da-da-da, what's the primary reference? [00:24:04] Speaker 05: A little tricky, probably, but the primary reference is the one on the top left, hex shape. [00:24:08] Speaker 05: She's pointing to what I pointed to, 230. [00:24:11] Speaker 05: So you told me earlier there had been no evidence about a, you know, this is his testimony. [00:24:16] Speaker 03: That is his testimony. [00:24:17] Speaker 03: There's no evidence that that's prior art. [00:24:19] Speaker 03: It's just a picture he put up of an image from a patent. [00:24:23] Speaker 03: He didn't introduce the patent. [00:24:24] Speaker 03: He didn't say it was prior art. [00:24:25] Speaker 03: He just put up a picture of something. [00:24:29] Speaker 03: There's no way you can have obvious misdetermination without a piece of prior art. [00:24:33] Speaker 06: Did you raise that objection? [00:24:35] Speaker 03: We didn't need to. [00:24:36] Speaker 03: They lost on obviousness because their arguments were, the jury was against them on that. [00:24:41] Speaker 03: Their arguments were weak. [00:24:45] Speaker 02: But following up on Judge Pearl's question, did you ever complain to the court that there was a problem in terms of 230PAT not being prioritized? [00:24:57] Speaker 05: No, because there was no reason for us to. [00:25:03] Speaker 05: The judge had briefing on the J-Mall motions. [00:25:06] Speaker 05: Yes, sir. [00:25:07] Speaker 05: And the bulletin issue was raised. [00:25:09] Speaker 05: Yes, your honor. [00:25:12] Speaker 05: Did you put that in your record here? [00:25:14] Speaker 05: Did we have your briefing on the J-Mall motion? [00:25:16] Speaker 05: Yes, your honor. [00:25:17] Speaker 05: Okay, can you point to me in the J-Mall motion where you made this argument to the judge? [00:25:21] Speaker 03: I don't know. [00:25:22] Speaker 03: I cannot. [00:25:23] Speaker 03: I don't think we made that argument. [00:25:24] Speaker 05: Okay, then you've surrendered that argument. [00:25:26] Speaker 03: Why have you surrendered it? [00:25:28] Speaker 03: They didn't make it. [00:25:30] Speaker 03: It's their evidence to bring. [00:25:31] Speaker 03: It's not we have to make an argument that they failed to bring the evidence. [00:25:35] Speaker 03: They brought no evidence to trial. [00:25:36] Speaker 06: Did you make that argument to the judge, to the jury in closing, that there's no evidence here? [00:25:43] Speaker 06: I mean, the difficulty is, we're not there, and the Recruiter 584 talks about the 230 patent. [00:25:51] Speaker 06: And the question is, Dr. Formosa, is this collection, have you identified any of these items as a primary reference? [00:25:58] Speaker 06: And so they're talking about, and in fact, the judge says a minute later, I have no idea what a primary reference is. [00:26:07] Speaker 05: Right. [00:26:08] Speaker 05: This is slide 11. [00:26:10] Speaker 05: That's correct. [00:26:11] Speaker 05: We have slide 11 from exhibit 240. [00:26:17] Speaker 03: That was not an exhibit that was admitted into evidence. [00:26:24] Speaker 03: Slide 11 was a PowerPoint set of slides that an expert prepared for support of his testimony. [00:26:31] Speaker 03: They were demonstrative. [00:26:32] Speaker 06: They were not submitted into evidence. [00:26:46] Speaker 06: Is there anything in the record? [00:26:47] Speaker 06: I think we've already asked this twice. [00:26:50] Speaker 06: But is there anything in the record in which you made this argument [00:26:54] Speaker 06: to the jury, to the judge. [00:26:56] Speaker 06: I mean, I assume based on what you're saying now, you would have said to the jury, look, this argument fails because you require a prior art reference, and there's no prior art reference in the story. [00:27:08] Speaker 03: We did not do that. [00:27:09] Speaker 06: Because why wouldn't you have done that if what you're saying to us is correct? [00:27:13] Speaker 03: Right. [00:27:15] Speaker 03: Because a trial strategy is legitimate. [00:27:17] Speaker 03: They put up an expert that was completely disqualified and dissembled in front of the jury. [00:27:23] Speaker 03: The jury didn't believe a word that he said. [00:27:25] Speaker 03: So there was no reason to attack his, to bring up and explain his arguments and then tear them down. [00:27:30] Speaker 05: He just lie on the woods and wait until the appeal. [00:27:33] Speaker 05: He didn't lie in the woods. [00:27:34] Speaker 05: It had... He should point this out to the judge. [00:27:37] Speaker 05: The judge is obviously new to this because he says he didn't even know what a primary reference is. [00:27:42] Speaker 05: And so the judge got mad at both of you, and he thought you were jerking him around. [00:27:46] Speaker 05: And why didn't the council members of the bar help the judge out a bit? [00:27:51] Speaker 05: And the judge said, hey, Your Honor, in this case, shouldn't have gone to the jury. [00:27:57] Speaker 05: And there actually weren't any legitimate pre-jury motions. [00:28:02] Speaker 05: He said to the judge, well, we're going to argue later. [00:28:04] Speaker 05: That's OK. [00:28:05] Speaker 05: That's how we'll do it here. [00:28:06] Speaker 05: So it was a really sloppy trial. [00:28:08] Speaker 06: What about the cross-examination? [00:28:11] Speaker 03: didn't cross-examine the expert on obviousness. [00:28:15] Speaker 03: They didn't need to. [00:28:17] Speaker 05: The experts... You let them try their obvious case. [00:28:20] Speaker 05: From your view, they put absolutely nothing in record, although their expert referred to an exhibit. [00:28:28] Speaker 05: And you say, that's not good enough. [00:28:30] Speaker 05: And you go through, the judge goes through all the trouble to make a [00:28:34] Speaker 05: struggles to try to ruin this and get a jury instruction up, trouble the jury with all of this, where you know I'm going to wait till the appeal, and now I'm a gotcha. [00:28:44] Speaker 05: They didn't produce any evidence. [00:28:46] Speaker 03: I don't think that's what happened at all, Your Honor. [00:28:48] Speaker 05: Tell me why it didn't happen. [00:28:49] Speaker 05: Sure. [00:28:50] Speaker 05: If you didn't raise it, why didn't you raise this earlier? [00:28:52] Speaker 03: Because they spent five years. [00:28:54] Speaker 05: Why didn't you raise it earlier? [00:28:55] Speaker 05: As an officer of the court. [00:28:57] Speaker 05: because we didn't even notice it, Your Honor. [00:29:00] Speaker 05: We didn't notice that they hadn't put any evidence in. [00:29:02] Speaker 05: That's a good one. [00:29:03] Speaker 03: They put in a five-minute testimony from an expert that said, I don't know, it looks pretty obvious to me, and moved on. [00:29:10] Speaker 03: We never were worried about the obvious misdefense because there were so many things raised at trial [00:29:16] Speaker 03: There were so many things that we had to deal with. [00:29:19] Speaker 03: That was such a minor one. [00:29:21] Speaker 03: It's like five sentences of the expert. [00:29:25] Speaker 03: It just didn't land with the jury. [00:29:27] Speaker 03: It didn't land with the court. [00:29:29] Speaker 03: It didn't land with us. [00:29:30] Speaker 03: We just moved on to all of the other issues that were raised by the defendant. [00:29:34] Speaker 03: We weren't hiding. [00:29:35] Speaker 02: But I mean, to say the obviousness is just such a minor issue, that feels a bit disingenuous. [00:29:43] Speaker 03: Well, I think if you read the testimony of how the defendant tried to put their case in, you'll see that really, although the expert says this, it looks pretty obvious to me. [00:29:57] Speaker 03: That's it. [00:29:57] Speaker 03: It wasn't like there was a long testimony about it. [00:30:01] Speaker 03: It was really, really quick. [00:30:02] Speaker 03: I think it's five sentences. [00:30:04] Speaker 05: So it was a lot. [00:30:06] Speaker 05: What's the judge say when he talks about other evidence of record in addition to the opinions of the expert? [00:30:13] Speaker 05: Has he taken leave of his sentences? [00:30:15] Speaker 05: What's he talking about when he says other evidence of the record? [00:30:17] Speaker 05: Amply supports the jury's determination. [00:30:20] Speaker 03: I think about not obvious. [00:30:22] Speaker 03: There was certainly a lot of evidence of secondary considerations. [00:30:26] Speaker 03: There was a lot of that. [00:30:27] Speaker 03: There was the huge success of the Wallet Ninja. [00:30:30] Speaker 03: There was the deliberate copying. [00:30:32] Speaker 03: They had a defendant send me a copy of it to China to be copied. [00:30:35] Speaker 03: There was a lot of evidence of that. [00:30:37] Speaker 03: So secondary considerations, I think, were very appropriate for the judge to consider. [00:30:44] Speaker 06: OK, I think we need to leave this issue. [00:30:46] Speaker 06: We've exhausted all of your time. [00:30:48] Speaker 06: I'll add another five minutes on if you want to discuss issues other than the obviousness. [00:30:53] Speaker 03: OK, thank you, Your Honor. [00:30:55] Speaker 06: And then we'll have the other side be prepared to respond to what we've just heard. [00:30:59] Speaker 03: OK. [00:31:00] Speaker 03: The only thing that I want to additionally point out to you is that with regard to damages, I think that the defendant makes their argument as if it's an attack on the expert witness at trial. [00:31:18] Speaker 03: But really, that's not appropriate, because her [00:31:22] Speaker 03: I'm sorry. [00:31:38] Speaker 03: is that that's not exactly how it went. [00:31:42] Speaker 03: There was emotional luminae that was not ruled on before trial. [00:31:46] Speaker 03: And then at opening, Sherman attacked Ms. [00:31:50] Speaker 03: Schenck in their opening. [00:31:52] Speaker 03: Then when it came time to her to testify, the judge ruled that it was appropriate for her to testify. [00:31:58] Speaker 03: But he did not specifically address any point of their [00:32:02] Speaker 03: motion lumine with regard to her expert report, which was subsequently admitted. [00:32:09] Speaker 03: But what's even more interesting is, and this is the site I want to give you. [00:32:13] Speaker 06: Did you say which was subsequently admitted? [00:32:15] Speaker 06: Did they object to its admission? [00:32:16] Speaker 03: No, Your Honor. [00:32:17] Speaker 03: They did not object. [00:32:19] Speaker 03: Not only did they not object, they said no objection. [00:32:22] Speaker 03: And the judge asked them, no objection? [00:32:24] Speaker 03: And they said, no objection. [00:32:26] Speaker 03: And that's how it was admitted. [00:32:27] Speaker 02: Can you point us to where? [00:32:29] Speaker 02: If that admission occurred, you said you had some page sites for it. [00:32:31] Speaker 03: Sure. [00:32:36] Speaker 03: That's 5020. [00:32:42] Speaker 03: And I think we have a bold quote in the opposition brief also. [00:32:47] Speaker 03: And since I don't want to run out of time, I want to figure just one more site to have that you might not have had at 4966, which I think is pretty significant. [00:32:59] Speaker 03: It's during Ms. [00:33:00] Speaker 03: Schenck's direct testimony, the judge stops her and asks her his own questions and questions her. [00:33:06] Speaker 03: And then at the end, he gives Sherman the right to renew their motion without any limitation. [00:33:14] Speaker 03: And he says, if they have further application, I'll hear it. [00:33:17] Speaker 03: And they did not make another motion. [00:33:21] Speaker 03: Instead, they cross-examined her. [00:33:23] Speaker 03: And then on redirect is when we introduced both the expert reports, and that's when they said no objection. [00:33:31] Speaker 03: So I think the reason that's significant is because the objection was not preserved and as it was not ruled on without equivocation by the trial judge. [00:33:53] Speaker 06: So we'll give you five minutes. [00:33:56] Speaker 06: And obviously, we want you to address the point your friend made about the obviousness issue. [00:34:02] Speaker 06: Yes, Your Honor. [00:34:07] Speaker 01: With respect to the LKQ issue, [00:34:14] Speaker 01: As your honors pointed out, there was no stated objection by Dynamite either before submission. [00:34:20] Speaker 06: I'm sorry. [00:34:21] Speaker 06: Let me start with, are the pages he gave us in the appendix, is that the sum of the substance of what was said by your side on obviousness of testimony? [00:34:35] Speaker 01: I know that the testimony included at least pages, appendix 5185 to 87. [00:34:43] Speaker 01: But I don't know if it's limited to that. [00:34:45] Speaker 05: Can we just talk about prior art? [00:34:47] Speaker 01: Yes. [00:34:48] Speaker 05: Was there any prior art given in evidence? [00:34:53] Speaker 01: There was testimony about prior art that was provided. [00:34:55] Speaker 05: Just let me stop for a second. [00:34:57] Speaker 05: The exhibit D240 slide 11, which is the 230 pack, was that admitted as evidence? [00:35:05] Speaker 05: Yes or no? [00:35:06] Speaker 01: I do not believe it was. [00:35:08] Speaker 01: I do not believe so. [00:35:09] Speaker 01: I do not believe so. [00:35:10] Speaker 05: You do not believe or is that a no? [00:35:13] Speaker 01: I believe that we did not do that. [00:35:16] Speaker 01: No, I did not. [00:35:21] Speaker 02: Maybe the person at the table could help confirm the accuracy of the statement that was just made. [00:35:27] Speaker 00: I don't believe it was admitted. [00:35:29] Speaker 00: It was not admitted? [00:35:31] Speaker 00: Correct. [00:35:31] Speaker 00: It was presented in connection with the trial testimony as a demonstrative accompanying testimony on the screen presented to the jury. [00:35:41] Speaker 01: And that art and other prior art. [00:35:43] Speaker 05: That is not evidence. [00:35:44] Speaker 05: Was there any other prior art put in evidence? [00:35:51] Speaker 01: There were references to the prior art in the testimony. [00:35:55] Speaker 01: I do not believe there was other. [00:35:59] Speaker 06: Where are those references to? [00:36:02] Speaker 05: Other than the 230, where is the reference to other prior art? [00:36:20] Speaker 01: There was testimony regarding what's been referred to as this demonstrative, which is shown in the principal brief, the blue brief, at page 41. [00:36:32] Speaker 06: And that is the subject. [00:36:37] Speaker 06: Blue brief, blue brief, 41? [00:36:38] Speaker 01: Yes. [00:36:38] Speaker 06: Well, where is the record evidence? [00:36:43] Speaker 01: Where is it in the appendix? [00:36:44] Speaker 05: In the appendix. [00:36:45] Speaker 05: For what reason? [00:36:45] Speaker 05: Those drawings on 41 you're saying were in evidence? [00:36:50] Speaker 01: They were subject of the testimony by Dr. Formosa. [00:36:55] Speaker 05: Not in evidence, but suddenly in testimony. [00:36:57] Speaker 01: That's right. [00:37:01] Speaker 02: I mean, they were presented as demonstratives, but not actually in the exhibits. [00:37:05] Speaker 02: I'm just trying to confirm. [00:37:07] Speaker 01: That's right. [00:37:08] Speaker 05: And there was no objection to the testimony? [00:37:11] Speaker 01: There was no objection on that. [00:37:12] Speaker 01: There was no objection raised at the time that the jury instruction was submitted. [00:37:17] Speaker 01: And there was no objection in connection [00:37:21] Speaker 01: Post-trial, general motion. [00:37:25] Speaker 01: So we're arguing that it's a waiver. [00:37:30] Speaker 01: Wave of the waiver argument. [00:37:37] Speaker 06: But let's assume, hypothetically, there's no evidence. [00:37:41] Speaker 06: Let's assume there was nothing on obviousness. [00:37:44] Speaker 06: Are we really going to find it's a waiver, even if the other side didn't say it? [00:37:47] Speaker 06: We've got to review the record, even on a deferential standard of review. [00:37:52] Speaker 06: And obviousness is a question of law. [00:37:54] Speaker 01: I'm sorry. [00:37:56] Speaker 01: It is a question of law based on underlying facts. [00:38:00] Speaker 01: And those facts could have been induced through the testimony that was provided during the trial, not only of [00:38:07] Speaker 06: But we get to look at the records for purposes of evaluating whether or not the change in law resulting from LKQ has any relevance to what went on here. [00:38:19] Speaker 06: We look at the record, and your friend makes an argument that it doesn't have any relevance because there was no [00:38:27] Speaker 06: primary reference put in the record, there was no applicability of the key portions of LKQ or Rosen-Durling that were changed. [00:38:38] Speaker 06: That's for us to, irrespective of whether there's an objection, that's the record we have. [00:38:45] Speaker 01: Right. [00:38:46] Speaker 01: But there was testimony. [00:38:47] Speaker 01: There was a trial record relating to the issue of obviousness that was litigated before the court. [00:38:55] Speaker 01: So it's not that there's a, [00:38:57] Speaker 01: that there's completely no evidence. [00:38:58] Speaker 01: There is expert testimony in that regard. [00:39:02] Speaker 02: So maybe just a high level question for you. [00:39:05] Speaker 02: Let's say we were to remand to have it tried under LKQ. [00:39:10] Speaker 02: What evidence that hopefully is already been provided to the court would you actually submit? [00:39:18] Speaker 01: We have a testimony that was already put in. [00:39:23] Speaker 01: I do not believe we have a problem necessarily admitting the evidence that was already provided, as well as potentially new evidence that would have come up. [00:39:32] Speaker 06: But we didn't have an entitlement to, I mean, let's assume we say we have to vacate this because of the jury instruction. [00:39:40] Speaker 06: Do you get to put on new stuff and a whole new trial? [00:39:43] Speaker 06: I mean, what entitles you to that? [00:39:46] Speaker 06: the do-over is for purposes of applying the correct standard. [00:39:50] Speaker 06: It's not, OK, now I'm going to find 15 pieces of prior art and put them in the record now. [00:39:57] Speaker 01: Well, I don't think it's as extreme as that, but there was discussion. [00:40:00] Speaker 06: Well, OK, two pieces of prior art and put them in the record. [00:40:02] Speaker 06: Do you think you get to review the evidence, to redo the evident evidentiary basis for this? [00:40:10] Speaker 01: Right. [00:40:10] Speaker 01: Well, if we're talking about the potential applicability of other references because the standard has changed, [00:40:16] Speaker 01: then there may be other references that would be applicable, because we're not talking about applying the Rosen-Durling test anymore, that we now have the new standard under LKQ, which is Graham. [00:40:27] Speaker 05: Can a judge and the judge's discretion allow the jury to consider expert testimony about prior art when the prior art itself wasn't submitted in evidence? [00:40:36] Speaker 01: I believe that's so. [00:40:37] Speaker 01: And that's because the obviousness issue was a question of the world. [00:40:40] Speaker 05: So you think the judge had the authority to do that if he wanted? [00:40:44] Speaker 01: Yes. [00:40:44] Speaker 05: So we don't know the answer. [00:40:46] Speaker 05: to the question. [00:40:47] Speaker 05: If this case gets sent back, right? [00:40:51] Speaker 05: Yes. [00:40:52] Speaker 05: Then the case is going to be tried on the record that's already been made. [00:40:55] Speaker 05: The question is, well, now that the record has been made, you can prevail under LKQ. [00:41:02] Speaker 05: And your other side's going to stand up and say, stop right now, because there's been no prior art in evidence. [00:41:09] Speaker 05: And the judge may well say, no, no, no. [00:41:11] Speaker 05: I allowed the jury to hear that, because I treated the expert testimony as though it were in evidence. [00:41:18] Speaker 01: Yes, Your Honor. [00:41:19] Speaker 05: And I know the answer to that. [00:41:23] Speaker 01: And I guess that would be determined on a remand, if that's the way it's presented. [00:41:27] Speaker 01: Yes. [00:41:30] Speaker 04: And we ask them to give us a brief that says everything. [00:41:39] Speaker 06: So at Judge Clevenger's app suggestion, we'd like [00:41:49] Speaker 06: a letter from you or a form with attachments of all the evidence relating to the obviousness issue that was presented to the jury. [00:41:59] Speaker 01: Yes, Your Honor. [00:42:00] Speaker 06: Between sites, but make sure. [00:42:01] Speaker 06: I mean, I'm not, maybe you can attach them, because I'm not sure we've got all of them. [00:42:06] Speaker 06: We don't have all of them. [00:42:07] Speaker 06: Yeah. [00:42:07] Speaker 06: And could, sir, could you also do the same thing? [00:42:12] Speaker 05: Sure, Your Honor. [00:42:12] Speaker 06: So we can confirm it and not go back and forth. [00:42:15] Speaker 06: So a simultaneous briefing or letter brief. [00:42:19] Speaker 06: I don't know what your schedules are like. [00:42:22] Speaker 06: Ten days enough, okay? [00:42:25] Speaker 05: I'm not sure I'd have them be in joint because they'll argue with each other. [00:42:28] Speaker 05: No, no, I don't want joint. [00:42:29] Speaker 06: I want everybody to submit a separate letter which identifies, attaches, and identifies all of the appendices sites or all of the record sites in terms of what was said and done with respect to obviousness. [00:42:43] Speaker 06: And that might well include the closing statements or whatever, too. [00:42:47] Speaker 06: Yes. [00:42:48] Speaker 06: We want all the websites. [00:42:50] Speaker 06: OK. [00:42:51] Speaker 02: And if it could be clear about what was actually emitted in evidence, I think that would also be useful. [00:42:56] Speaker 01: Yes. [00:43:05] Speaker 06: Seven days. [00:43:06] Speaker 01: Seven days. [00:43:06] Speaker 06: Seven calendar days. [00:43:10] Speaker 01: Yes, Your Honor. [00:43:11] Speaker 01: I would continue. [00:43:12] Speaker 01: I know that the extended time now has run out. [00:43:15] Speaker 06: Thank you. [00:43:16] Speaker 06: Thank you, Your Honor.