[00:00:00] Speaker 05: Our last case for argument is 24-1342. [00:00:03] Speaker 05: How do I say the name of your client? [00:00:07] Speaker 00: Maggie Mae Technologies. [00:00:10] Speaker 05: We know what? [00:00:10] Speaker 05: We had a lot of different versions of that, and that was never one of them. [00:00:15] Speaker 05: Say it again. [00:00:16] Speaker 00: Maggie Mae. [00:00:17] Speaker 05: Maggie Mae Technologies versus Phillips 66. [00:00:20] Speaker 00: If I recall correctly, it's a beat instructor. [00:00:25] Speaker 05: It's a what? [00:00:31] Speaker 00: May it please the court, Jamie McDole from Winstead on behalf of Appellant Maggie Mae Technology. [00:00:38] Speaker 00: Your Honors, the district court properly concluded that Phillips made relevant, improper, and prejudicial arguments on a core issue in the case, whether the bulk physical properties of ISO 8217 could be measured through calculations and estimations as opposed to [00:01:01] Speaker 00: actual testing on samples, samples that were never provided to Maggie Mae during fact discovery. [00:01:08] Speaker 00: But the district court abused this discretion when it denied Maggie Mae's motion for a new trial. [00:01:19] Speaker 00: And that is because the district court collapsed its harmless error analysis into sufficiency of the evidence. [00:01:29] Speaker 00: And as a result, [00:01:31] Speaker 00: made an incorrect decision with respect to the new trial. [00:01:34] Speaker 02: It's your position that the alternative grounds on which the jury could have relied, we cannot look at the record and figure out how the jury would have rolled on those, right? [00:01:46] Speaker 00: That is exactly correct, Your Honor. [00:01:47] Speaker 00: In fact, this was a general verdict. [00:01:50] Speaker 00: And so we only know that the jury concluded that there was no infringement. [00:01:55] Speaker 00: But what the district court did is said, well, there is these two other positions that they had on non-infringement. [00:02:02] Speaker 00: One was merchantable quality, and one was on the prior tied to processing. [00:02:10] Speaker 03: And we don't know. [00:02:11] Speaker 00: And we don't know. [00:02:12] Speaker 00: But what the judge did is waive the evidence and decide, well, the jury could have done that. [00:02:17] Speaker 00: In fact, what the judge actually says in the end of his post-trial motion, which shows that he actually did sufficiency of the evidence. [00:02:24] Speaker 00: He said, because the parties presented conflicting evidence on the disputed issues from which the jury could have reasonably have concluded, [00:02:33] Speaker 00: that Maggie May did not prove its claims by a preponderance of the evidence. [00:02:37] Speaker 00: The court will not disturb the jury's verdict by ordering a new trial. [00:02:41] Speaker 00: The language of jury could reasonably have. [00:02:46] Speaker 00: That means the jury reasonably could have not decided that. [00:02:51] Speaker 00: But we also know that the- Let me just stop you for a second. [00:02:59] Speaker 02: If it's true, now the opinion of the trial court says, defendants presented undisputed evidence that the Bay Way feed was not mercantile, right? [00:03:13] Speaker 02: Because the viscosity was too low. [00:03:15] Speaker 02: Now, if that was true, that it was undisputed that that claim limitation wasn't met, then you wouldn't be here making this argument, right? [00:03:24] Speaker 00: That's correct, Your Honor. [00:03:25] Speaker 00: If we had an insufficiency of proof, we offered no proof that there was infringement on a particular claim element, that, I would agree, is harmless air. [00:03:37] Speaker 00: But that's not the only thing the judge said. [00:03:40] Speaker 00: There was competing evidence, because the evidence on the low viscosity related to a standard on merchantability. [00:03:48] Speaker 02: Wasn't that disputed, whether it was the standard or whether it was? [00:03:52] Speaker 02: I forget what it's called. [00:03:54] Speaker 00: It was called Tom Flatt's Window. [00:03:55] Speaker 02: Yeah, thank you. [00:03:55] Speaker 00: And it was only for New York Harbor. [00:03:58] Speaker 00: So imagine this, a claim construction. [00:03:59] Speaker 00: This is a product claim. [00:04:01] Speaker 00: The barrel of oil comes off and meets all of the limitations. [00:04:07] Speaker 00: So we should be able to determine infringement right there. [00:04:10] Speaker 00: But only in New York Harbor do we decide whether the viscosity makes it merchantable. [00:04:14] Speaker 00: If we send it to Hong Kong from there, [00:04:17] Speaker 00: It's perfectly fine. [00:04:18] Speaker 00: So a product that is infringing coming off, we're making a determination, giving it a geographical limitation as to where it is, because the plast window is only giving you a cover. [00:04:28] Speaker 02: You're saying you're going to lose me a little bit, but I think what you want to focus on is showing me why there's a factual dispute about why it's merchantable. [00:04:38] Speaker ?: Sure. [00:04:38] Speaker 04: Absolutely, so Could you also tell me because it's confusing Do you agree where the proper testing should take place? [00:04:55] Speaker 04: I? [00:04:56] Speaker 04: inside and outside the battery. [00:04:57] Speaker 04: Is there a dispute? [00:04:59] Speaker 00: There is absolutely a dispute, Your Honor. [00:05:01] Speaker 04: Okay. [00:05:01] Speaker 04: And that's why the actual testing matters. [00:05:03] Speaker 00: The term is prior to hydro processing. [00:05:06] Speaker 00: There is no dispute that hydro processing occurs when hydrogen is first put into the feed. [00:05:11] Speaker 04: Why didn't you folks ask for a claim construction on that? [00:05:13] Speaker 04: I mean, it just seems so odd that you didn't have the [00:05:19] Speaker 04: Judge Construe, did that mean outside the battery, inside the battery, I don't know, somewhere else? [00:05:24] Speaker 00: Your Honor, I actually think prior to tiger processing is a very simple term. [00:05:27] Speaker 00: You do? [00:05:28] Speaker 02: Right, but it doesn't say immediately prior to, nor does it say, you know, anytime prior to is what it could be, but nobody asked for a claim construction. [00:05:38] Speaker 02: But anyway, going back to disputed evidence, please, on the merchantable limitation, I'd appreciate if you could identify that. [00:05:45] Speaker 00: So when we get to merchantability, a point [00:05:47] Speaker 00: It only affects one of the claims on appeal. [00:05:50] Speaker 00: It's not the positive of the appeal. [00:05:51] Speaker 00: Number two, there were competing claim constructions that went in. [00:05:55] Speaker 00: So there is a defined term. [00:05:59] Speaker 00: Merchantable quality is defined in the patent itself. [00:06:01] Speaker 00: It doesn't need a claim construction. [00:06:04] Speaker 00: It is defined. [00:06:05] Speaker 00: And what ended up happening is we said, well, we're going with that definition. [00:06:09] Speaker 00: And when that definition uses commercially sold, at the time of the invention, [00:06:14] Speaker 00: That means free of deleterious materials. [00:06:17] Speaker 03: And where does deleterious materials come from? [00:06:22] Speaker 00: The factual will be prior to hydro processing or prior to merchantability? [00:06:29] Speaker 03: Both. [00:06:30] Speaker 00: Sure. [00:06:30] Speaker 03: Merchantability prior to hydro processing. [00:06:32] Speaker 00: And the court walks through this in detail. [00:06:35] Speaker 00: But we put on evidence throughout the records and the court says in Appendix 99-102 explains the disputed claim construction relating to merchantable quality. [00:06:46] Speaker 00: And we put on evidence based on the express definition in the patent and why it was free of deleterious materials. [00:06:54] Speaker 00: And then what we had Phillips do is Phillips came in and said, well. [00:06:58] Speaker 02: So you're saying there's a claim construction issue. [00:07:00] Speaker 00: There is a claim construction issue, but. [00:07:03] Speaker 00: How is it resolved? [00:07:04] Speaker 00: It was not resolved. [00:07:06] Speaker 02: So you asked the district court judge to interpret this term? [00:07:11] Speaker 00: No, Your Honor. [00:07:12] Speaker 00: The parties argued what the plain and ordinary meaning was as. [00:07:17] Speaker 02: But as you're sitting here, you're saying you're relying on a definition of specification. [00:07:20] Speaker 02: That's not plain and ordinary meaning. [00:07:22] Speaker 00: We acted as our own lexographer. [00:07:25] Speaker 00: What Phillips came in, and to be honest with you, this happened right before trial. [00:07:30] Speaker 00: They came up with this argument. [00:07:32] Speaker 00: We did not know about the Platts window until the pre-trial conference. [00:07:35] Speaker 00: And they came in and said, well, it has to meet the Platts window. [00:07:38] Speaker 00: And the court viewed that as a factual dispute. [00:07:42] Speaker 00: And so the parties had competing factual [00:07:44] Speaker 00: and competing facts on which to apply to the plenary meeting. [00:07:52] Speaker 00: And we are perfectly happy going forward. [00:07:55] Speaker 02: Do you still think plenary meeting applies? [00:07:58] Speaker 00: We think that we acted as our own lexographer, Your Honor. [00:08:01] Speaker 00: And it is in the patent, and that is the definition that the patentee chose to have. [00:08:06] Speaker 00: But we offered evidence under that construction. [00:08:12] Speaker 00: With respect to prior to hydro-processing, prior to hydro-processing can mean it's just prior to hydro-processing. [00:08:19] Speaker 00: Hydro-processing that's undisputed is when hydrogen is put into the feedstock and becomes a mixture. [00:08:24] Speaker 03: Where? [00:08:25] Speaker 00: after drum 101. [00:08:27] Speaker 00: That is where hydrogen is added. [00:08:29] Speaker 00: There is a pump – and again, this is undisputed – there is a pump that increases pressure, adds hydrogen, and it goes into the reactor. [00:08:36] Speaker 00: No. [00:08:36] Speaker 00: Prior to hydroprocessing, I mean, Phillips can take crude out of the ground and measure it if they'd like to. [00:08:41] Speaker 00: But that's not the purpose of the invention. [00:08:43] Speaker 00: Even during tech tutorials, the entire purpose – everyone explained it as is what's going in, [00:08:50] Speaker 00: Something is going in, something that – it's reacted with a catalyst, and something comes out. [00:08:56] Speaker 00: The entire purpose of the claim is something goes in as ISO 287 compliant except for sulfur, and it's reacted, and it comes out pretty close to the same thing except sulfur is lower. [00:09:08] Speaker 00: So it's a way to strip it without diminishing the rest of the properties. [00:09:12] Speaker 00: That's the entire purpose. [00:09:14] Speaker 00: And so there is a dispute on where to measure. [00:09:16] Speaker 00: And that is part of the issue is when we get to that, we've said, no, we should be determining what it is right before it goes into the reactor. [00:09:25] Speaker 00: That's the purpose of this patent. [00:09:26] Speaker 00: And they've refused to give us that sample. [00:09:32] Speaker 00: And they told the district court at the time, well, we'll just – they can use estimates. [00:09:36] Speaker 00: They can use calculations. [00:09:37] Speaker 00: That's just fine. [00:09:38] Speaker 00: Don't make us do it because it's too expensive and it's too dangerous for us to do. [00:09:44] Speaker 00: Now, that later turned out not to be true. [00:09:47] Speaker 00: Those are two incorrect representations they made to the court. [00:09:50] Speaker 00: One, that they couldn't do it because it was too dangerous and too expensive, because later after fact discovery, they decided to do it. [00:09:57] Speaker 00: And two, that we could rely on estimates and calculations in order to get the information we needed. [00:10:03] Speaker 00: And then that trial told us, well, as a matter of law, you have to have actual samples to test. [00:10:10] Speaker 00: Otherwise, you can't meet your burden. [00:10:12] Speaker 05: More important than telling you that at trial, they told the jury that, correct? [00:10:16] Speaker 00: Correct, Your Honor. [00:10:17] Speaker 02: Can I go back to the definition you're relying on for merchantable quality, just for one minute? [00:10:21] Speaker 02: I take it you're relying on the 709 patent, column 8, lines 29 through 34 as being the lexicography, the express definition? [00:10:31] Speaker 00: Yes, I believe that is correct, Your Honor. [00:10:34] Speaker 00: I have it in the 884 patent. [00:10:37] Speaker 00: But yes, it's in the 709 as well, because they're continuation in part. [00:10:46] Speaker 00: So yes, at column 8, lines 29 through 34 in the 709 pattern. [00:10:52] Speaker 00: And we offered evidence under that definition. [00:10:55] Speaker 02: And it was undisputed. [00:10:57] Speaker 02: It's hard, because there's no claim construction on that term. [00:11:00] Speaker 00: But our evidence, I understand the court pointed to under their construction, based on the Platts information, which we contend cannot be correct, because it didn't exist at the time of the invention. [00:11:11] Speaker 00: But we offered undisputed evidence under our construction. [00:11:17] Speaker 02: I understand. [00:11:17] Speaker 02: But this says it has to be able to be commercially sold. [00:11:22] Speaker 02: Right. [00:11:23] Speaker 02: A residual marine fuel oil that [00:11:25] Speaker 02: kids should serve and could be commercially sold. [00:11:27] Speaker 02: Anyway. [00:11:29] Speaker 00: And at the time, there was no market for [00:11:34] Speaker 00: this to be sold. [00:11:35] Speaker 00: This was novel enough that before the standard came into place in 2020, our clients are the ones that figured out how are we going to meet that standard. [00:11:43] Speaker 00: The standard was identified, and it was not going to come into place. [00:11:46] Speaker 00: So what does commercially sold mean? [00:11:48] Speaker 00: If you look at ISO 282.17, it actually has an addendum to it that talks about deleterious materials, that says we don't want these in there. [00:11:57] Speaker 00: So we are trying to meet that specification. [00:11:59] Speaker 00: That's what this is all about. [00:12:01] Speaker 00: And so what is commercially sold means, it means keeping it free of the deleterious materials. [00:12:05] Speaker 05: If you're into your rebuttal time, would you like to save it the rest? [00:12:08] Speaker 00: Yes, Your Honor. [00:12:09] Speaker 00: Thank you very much. [00:12:10] Speaker 00: Unless you have a question, Your Honor. [00:12:11] Speaker 04: Go ahead. [00:12:12] Speaker 04: Of course. [00:12:16] Speaker 04: The jury chart, the jury, it's not in the record, but I'm curious if it was asked. [00:12:22] Speaker 04: Were special interrogatories asked for the jury verdict? [00:12:25] Speaker 00: No, Your Honor. [00:12:26] Speaker 00: We were not permitted to question the jury afterwards. [00:12:30] Speaker 04: No, no, no. [00:12:30] Speaker 04: I don't mean that on the verdict form. [00:12:32] Speaker 04: So it seems to me that had there been special interrogatories, what basis do you find infringement on? [00:12:38] Speaker 04: Because there were so many things going back and forth. [00:12:41] Speaker 04: Did you have a charge conference with the judge? [00:12:42] Speaker 04: Was it off the record? [00:12:43] Speaker 04: And at that time, did you ask for special interrogatories and the judge said no? [00:12:47] Speaker 04: Or did that never come up in this case? [00:12:48] Speaker 00: Your Honor, that never came up in this case. [00:12:50] Speaker 04: Because one of the issues is we [00:12:52] Speaker 04: The argument is, we simply just don't know how the jury got its verdict. [00:12:55] Speaker 00: That's correct. [00:12:56] Speaker 04: And you agree that if he had special interrogatories, we would know. [00:12:59] Speaker 00: That is correct. [00:13:00] Speaker 00: If we had special interrogatories, we would know better. [00:13:02] Speaker 00: Thank you. [00:13:04] Speaker 05: OK. [00:13:04] Speaker 05: Thank you, Mr. McDowell. [00:13:05] Speaker 05: Ms. [00:13:05] Speaker 05: Drake, please proceed. [00:13:17] Speaker 01: Good morning, Your Honors. [00:13:18] Speaker 01: May it please the court, Denise Drake for Phillips 66. [00:13:23] Speaker 01: There are at least five easy and dispositive grounds for affirmance here before the court should ever need to reach dealing with the evidence in the first instance the way my friend on the other side would have this court do. [00:13:34] Speaker 01: Number one, the plain error standard of review, which applies because if you look at the list on page 26 of Maggie Mae's brief, [00:13:42] Speaker 01: of the statements that they challenge on appeal, not a single one drew a contemporaneous objection. [00:13:48] Speaker 01: Maggie May never argues, and it essentially conceives that it cannot meet the fourth prong of the plain error test. [00:13:56] Speaker 03: Wait a minute. [00:13:59] Speaker 04: They objected to the court when Phillips got up and wanted to introduce [00:14:04] Speaker 04: they wanted to introduce, and ultimately did, that there was no testing done, that that would be impermissible. [00:14:14] Speaker 04: It seems to me the district court at that time agreed with Phillips, because I'm not so sure if it was because the magistrate judge was doing the magistrate handled all the discovery matters, and the district court allowed it to come in. [00:14:32] Speaker 04: Why didn't Phillips [00:14:34] Speaker 04: remind the court that there had been a prior ruling where actual testing wouldn't come in, that the parties had agreed that they were going to rely upon these reality calculations. [00:14:43] Speaker 04: And why can't it, Phillips, stand up? [00:14:46] Speaker 04: It seems to me no district court was confused and say, well, Judge, in candor to the courts, that had previously been ruled out. [00:14:58] Speaker 04: Why? [00:14:59] Speaker 01: On the contrary, Your Honor, when this came up in the pre-trial colloquy, the only thing that the district court said is, I'm not going to keep it out on a preliminary basis, but Maggie Mae, you need to object when it comes up in the course of the evidence so I can rule on it then, because this is just a preliminary ruling inviting an objection when it came up at the time. [00:15:21] Speaker 04: And Maggie Mae, thereafter. [00:15:23] Speaker 04: But seriously, by putting the bell is unrung, the jury hears it. [00:15:27] Speaker 04: I mean, it just strikes me. [00:15:29] Speaker 04: Phillips knew this was not to come in. [00:15:31] Speaker 04: There was an agreement between the parties. [00:15:35] Speaker 04: This is how we're going to prove it. [00:15:36] Speaker 04: Because it was Phillips who said, it is too hot to test. [00:15:40] Speaker 04: It's too dangerous. [00:15:40] Speaker 04: We're not going to test. [00:15:41] Speaker 04: And then they did this change of course and say, later on when they supplemented summary judgment motion, and said, well, we now have actual testing. [00:15:52] Speaker 04: And so they objected. [00:15:56] Speaker 04: This is how I'm hearing it. [00:15:58] Speaker 04: You're saying, well, we should have been permitted to infect the jury. [00:16:02] Speaker 04: We should have been permitted to save the jury. [00:16:04] Speaker 04: They didn't do any testing. [00:16:05] Speaker 04: Then Maggie Mays was to stand up and object. [00:16:08] Speaker 04: And now the bill, how do you un-ring that bill? [00:16:10] Speaker 04: is that what you're saying? [00:16:13] Speaker 01: No, Your Honor. [00:16:14] Speaker 01: This is not an error of law or an incorrect legal theory that Maggie May, that Phillips 66 was putting to the jury. [00:16:22] Speaker 01: This is simply a discovery dispute that the judge kept the samples out because they were produced too late in the discovery process. [00:16:29] Speaker 01: And so the judge pulled the parties to [00:16:32] Speaker 01: See how it comes up in the course of the unfolding evidence. [00:16:35] Speaker 01: If you see a problem, you should object. [00:16:37] Speaker 04: And Maggie May never did. [00:16:38] Speaker 04: I can see that in the record. [00:16:40] Speaker 04: Can you point to me where he said make contemporaneous objections? [00:16:42] Speaker 01: Yes, Your Honor. [00:16:43] Speaker 01: The district court did this twice on page 1065 of the record and on page 846 of the record. [00:16:54] Speaker 01: One of those was in the context of the colloquy for the motion conservative instruction. [00:17:00] Speaker 04: I'm sorry. [00:17:01] Speaker 04: 1065 is way after he had already ruled erroneously. [00:17:04] Speaker 04: So it's way after. [00:17:06] Speaker 04: 1065, because he, at 846, he says, Maggie Mae, I'm looking at 846. [00:17:14] Speaker 04: Maggie Mae says, please, no. [00:17:16] Speaker 04: Don't let him do it. [00:17:17] Speaker 04: Don't let him do it. [00:17:19] Speaker 04: And the judge rules, well, I've read it. [00:17:23] Speaker 04: I'm going to allow it in. [00:17:24] Speaker 04: OK. [00:17:25] Speaker 04: It seems to me, clearly, the court had not remembered that this evidence was not to come in. [00:17:31] Speaker 04: So where does he say? [00:17:31] Speaker 04: Let's not talk about 1065, because that's way after he's already said let it in. [00:17:36] Speaker 04: Where does he say, I'm going to reserve just to make contemporaneous objections? [00:17:40] Speaker 04: Where does he say that? [00:17:42] Speaker 01: He says, if you want to urge, if he offers evidence about this. [00:17:46] Speaker 01: What page? [00:17:46] Speaker 01: What page? [00:17:47] Speaker 01: Well, I want to see it. [00:17:50] Speaker 01: 846, page 7, lines 18 through 21. [00:17:53] Speaker 01: If you want to urge, if he offers evidence about this, I'll hear it during trial. [00:17:58] Speaker 01: But at this preliminary stage, I'm not going to prohibit him referring to it in opening argument. [00:18:02] Speaker 01: And thereafter. [00:18:03] Speaker 04: OK, but hold on. [00:18:05] Speaker 04: Well, I guess I'm just having a, I don't know if you want to call it duty of candor to the court. [00:18:10] Speaker 04: I'm just having an issue, because at that point, Phillips knew it wasn't to come in. [00:18:15] Speaker 04: You knew about the agreement that you had with Maggie Man, which is that we're going to do, because you knew testing couldn't be done and hadn't been done. [00:18:23] Speaker 04: And to inject this at the last minute just seemed so prejudicial. [00:18:30] Speaker 04: Unless I'm totally missing something, I guess where I'm coming from is how can felons really allow the judge to do this? [00:18:37] Speaker 04: It seems clear to me. [00:18:39] Speaker 04: Look, I'm a trial judge. [00:18:40] Speaker 04: It seems clear to me. [00:18:41] Speaker 04: The trial judge didn't understand the procedural history, partly probably because the magistrate judge was doing most of the discovery. [00:18:51] Speaker 04: And that's, that's common, but I just, you have to persuade me that somehow your Phillips wasn't playing a little fast and loose here. [00:19:02] Speaker 04: You just going to have to persuade me. [00:19:03] Speaker 01: And two responses to that, Your Honor. [00:19:05] Speaker 01: Number one, the only thing that the parties had agreed and that the court ruled is that the samples themselves that conclusively showed no infringement here couldn't come in because they were produced too late. [00:19:16] Speaker 01: There had been no agreement between the parties, no ruling from the court about any agreement from the parties way back at the very outset. [00:19:25] Speaker 05: They wanted samples at a particular point in the process. [00:19:28] Speaker 05: And you all convinced the magistrate that you should not have to give them those, because it would be too expensive and too dangerous, and because they could simply make their case by using formulas to prove it. [00:19:42] Speaker 05: Is that accurate or not accurate? [00:19:44] Speaker 04: And there was a motion to compel. [00:19:46] Speaker 01: Yes, Your Honor. [00:19:48] Speaker 01: The reason that the samples weren't produced at the time is because at the time that Maggie May was asking for samples, which by the way, it was asking for samples from 12 locations across the refinery, and at that time, [00:20:01] Speaker 01: Phillips 66 did not understand there to be and argued to the judge that there was no theory in the case that would make samples after D-101 relevant. [00:20:12] Speaker 01: It wasn't until Maggie May put in an expert report later in the case that raised this new theory that the D-101 drum [00:20:18] Speaker 01: could potentially change the flashpoint of the samples, that a sampling location after D-101 would bear on infringement at all. [00:20:25] Speaker 01: And so at the time when Maggie May said, when Phillips 66 said they don't need this to prove infringement, it was because there was no theory in the case that would make that relevant. [00:20:34] Speaker 05: But you didn't just say you don't need it to prove infringement. [00:20:36] Speaker 05: You also said you can do it by calculation. [00:20:41] Speaker 05: You made that affirmative statement. [00:20:43] Speaker 01: And that is how it was argued at trial. [00:20:46] Speaker 01: No. [00:20:46] Speaker 01: Throughout trial, you argued they needed to do actual testing. [00:20:50] Speaker 05: They couldn't do it by calculation. [00:20:52] Speaker 01: No, Your Honor. [00:20:52] Speaker 01: And I think this is exactly why the deference to the district court is so very heavy in these scenarios, because the district court is the one who can see what a minuscule role. [00:21:03] Speaker 02: Actually, the district court said that it was prejudicial. [00:21:07] Speaker 02: I understand that you have gloss of what you think he meant when he said prejudicial, but he did say prejudicial, right? [00:21:15] Speaker 01: He did, Your Honor, but I would dispute that uttering the word prejudice has this kind of talismatic significance. [00:21:24] Speaker 05: Except that it does in the law, actually. [00:21:26] Speaker 05: Especially in the homeless error analysis. [00:21:28] Speaker 05: It actually does have a talismatic significance. [00:21:32] Speaker 05: That's exactly what it has. [00:21:34] Speaker 01: Well, it's prejudicial error that is a legal term of art that has this kind of significance. [00:21:40] Speaker 01: And we know that the judge didn't mean that. [00:21:42] Speaker 05: It's improper and prejudicial. [00:21:44] Speaker 05: Well, improper sounds an awful lot like error and prejudicial. [00:21:47] Speaker 05: If I say improper and prejudicial, are those not synonyms for prejudicial error? [00:21:52] Speaker 01: We know that the judge didn't mean prejudicial error in the sense of having affected substantial rights or altered the outcome of the trial, because the judge then goes on to say... Can you agree with me that what he said was, it makes this ground for non-infringement [00:22:11] Speaker 02: erroneous and illegal. [00:22:14] Speaker 02: You know, that there might be other grounds that the jury could rely on that were not legally erroneous, but at a minimum, that the language that's at A111 about improper and prejudicial to Maggie May, at a minimum, makes it so this one ground for non-infringement is legally erroneous. [00:22:37] Speaker 01: What the district court judge did is two things. [00:22:41] Speaker 02: No, a yes or a no. [00:22:43] Speaker 02: Please, just to start, so I can follow you. [00:22:47] Speaker 01: Yes, Your Honor. [00:22:49] Speaker 01: The judge looked at the substantial rights question in the context of this issue. [00:22:55] Speaker 01: But it did more than that. [00:22:57] Speaker 01: It looked at whether this issue affected Maggie Mae's substantial rights. [00:23:00] Speaker 01: And then it did the other part of the inquiry that the Fifth Circuit requires in order for the judge to. [00:23:07] Speaker 02: discussing this broadly. [00:23:10] Speaker 02: So I understand what you're saying. [00:23:12] Speaker 02: You're saying you don't agree that – I think you're saying that you don't agree with my reading of the opinion. [00:23:23] Speaker 01: The district court's opinion rests on two grounds. [00:23:27] Speaker 01: And both of them are required for the judge to have been required to grant a retry. [00:23:32] Speaker 03: I'm going to take a brief, OK. [00:23:33] Speaker 01: The manifest injustice one and the injury that Maggie may submit as well. [00:23:40] Speaker 02: Your view is that the district court, when it said prejudicial, it didn't have to say that alone. [00:23:45] Speaker 02: It had to go beyond that and say manifest injustice. [00:23:48] Speaker 01: But I think I had to, yes, I think I had to do two steps beyond that. [00:23:52] Speaker 01: The first one is to see whether the prejudice affected the outcome of the trial, because you have all sorts of cases where the court opines that something caused prejudice to a party, but the prejudice was but slight. [00:24:03] Speaker 05: Wait, did you have to figure out whether the prejudice caused a different outcome to the trial, or isn't it actually doesn't the burden actually kind of go the other way? [00:24:12] Speaker 05: If you look at, can we be sure this did not substantially affect rights? [00:24:17] Speaker 01: No, Your Honor. [00:24:19] Speaker 01: All of the cases that my friend cites that set forth that standard with the general verdict and can we know whether it affected the general verdict, those are cases in which the jury has received a legally erroneous instruction from the judge. [00:24:34] Speaker 01: And that matters, because the law recognizes that there's a very different standard when the person in the robe tells the jury a wrong thing about what the law is versus when an attorney merely makes an argument to the jury. [00:24:48] Speaker 01: OK, and on that point, I just want to clarify, because I want to make sure I just heard you correctly. [00:24:52] Speaker 04: Did you tell Chief Judge Moore that Phillips did not argue that there was no actual testing done? [00:25:00] Speaker 04: and therefore you can find no infringement. [00:25:02] Speaker 04: You did not make that argument? [00:25:04] Speaker 04: Or did I mishear you? [00:25:06] Speaker 01: If I said that, I didn't quite mean to say that. [00:25:10] Speaker 01: There is a single statement in the record after the judge's admonishment to the parties not to make that argument. [00:25:16] Speaker 01: It appears in the closing argument, a single two-line statement. [00:25:19] Speaker 04: OK, hold on a second. [00:25:21] Speaker 04: I really want to read this to you. [00:25:22] Speaker 01: Yes, Your Honor. [00:25:23] Speaker 04: Because this is in the closing, and this is what counsel said. [00:25:27] Speaker 04: The first two questions are, [00:25:29] Speaker 04: one and two. [00:25:31] Speaker 04: And this was what counsel said. [00:25:33] Speaker 04: But folks, you don't get to question three or question four when you answer no to questions one and two in the SU infringement. [00:25:44] Speaker 04: And you answer no because that's consistent with there's no actual test data that shows compliance. [00:25:52] Speaker 04: None. [00:25:54] Speaker 04: So the jury could very well have, and that's the question, [00:25:59] Speaker 04: Oh, how long did the jury deliberate? [00:26:03] Speaker 01: A day and a half, two days. [00:26:05] Speaker 04: The jury could have gone in there and said, well, well. [00:26:07] Speaker 04: And at the end of the day said, no test data, no infringement. [00:26:12] Speaker 04: And if we were to find that that was improperly argued to the jury, then how is that not prejudicial, harmful, [00:26:21] Speaker 04: I'll give up. [00:26:23] Speaker 01: Your Honor, first of all, I think even that statement is ambiguous. [00:26:27] Speaker 01: Because remember, there were hundreds of flashpoint samples that were actually admitted at trial. [00:26:33] Speaker 01: And the question whether the jury should credit those flashpoint samples versus Maggie Mae's Riazzi estimates. [00:26:40] Speaker 01: How did the community help fill it? [00:26:43] Speaker 01: Because when the judge is looking at the entirety of the trial record and seeing what effect the single statement, which drew no contemporaneous objection at the time, had on the jury, and considering it in the context. [00:26:57] Speaker 04: Why do you keep saying single statements? [00:26:58] Speaker 04: It was peppered and sprinkled throughout the entire trial, this test data. [00:27:02] Speaker 04: I mean, there's pages and pages of it in here, pages 26 to 27 of the brief. [00:27:07] Speaker 04: And there's all different instances of where [00:27:09] Speaker 04: Phillips gets up and talks about actual testing. [00:27:13] Speaker 01: Your Honor, in total, we're dealing with less than two pages of statements out of over 1,000 pages of trial record. [00:27:20] Speaker 01: And many of the statements actually go to a different issue altogether, and that is whether the jury should credit Maggie Mae's actual testing samples versus Phillips's actual testing samples versus Maggie Mae's estimates for what's in at the wrong place. [00:27:35] Speaker 05: You made the argument in your opening, correct? [00:27:38] Speaker 01: Yes. [00:27:39] Speaker 05: You made the argument in the closing event after the judge told you not to, correct? [00:27:42] Speaker 01: Correct. [00:27:43] Speaker 05: And you made it on all three crosses. [00:27:45] Speaker 05: I can give you the pages. [00:27:46] Speaker 05: Would you like them? [00:27:49] Speaker 01: No, Your Honor. [00:27:50] Speaker 01: I'm familiar with where counsel argued it. [00:27:52] Speaker 05: So it was sprinkled throughout, I think it's fair. [00:27:55] Speaker 05: I mean, I think she was being kind when she said peppered throughout, because pepper implies a tiny little flake on an otherwise giant roast. [00:28:02] Speaker 05: And I think it was more like rolled. [00:28:05] Speaker 05: pepper or marinated in pepper like I don't know I think she was being very kind and you fought her on it I want to point to move to one more different thing you keep claiming they didn't object but on page 111 of the district court's own opinion he said they objected during trial that is a fact-finding he points in the footnote to various places where they objected are you telling me he clearly did not find did he [00:28:31] Speaker 05: that they failed to properly preserve this issue or failed to object. [00:28:36] Speaker 05: Did he make the finding that they failed to object? [00:28:39] Speaker 05: He made a finding. [00:28:43] Speaker 05: Show me exactly where, because I'm on page 111 where he says they objected. [00:28:48] Speaker 01: I'm sorry. [00:28:49] Speaker 01: All I meant to say is that he didn't comment one way or the other about whether they made a contemporaneous objection, which is what the Fifth Circuit requires. [00:28:55] Speaker 01: But I don't want the court to get too hung up on whether they objected or whether they didn't object, because even if they did object, we're still under a clear abuse of discretion standard in a context in which the district court's discretion is at its zenith. [00:29:08] Speaker 01: The difference between that and a plain error review is minor here, especially when you're dealing with two independent findings, the manifest injustice finding, which he made after 50 pages of analysis of the trial as a whole, which Maggie Mae doesn't even challenge here on appeal, and which upholds the verdict irrespective of the first issue presented, and the substantial rights subsidiary question that we're dealing with in the first issue presented. [00:29:34] Speaker 01: Anything further? [00:29:35] Speaker 01: Anything further? [00:29:36] Speaker 00: okay thank you counsel thank uh... mister mcdowell you have a couple minutes of rebuttal thank you your honor I'd like to start with the point about uh... waiver the district court concluded they had made this waiver argument to the district court in post trial briefs the district court rejected it the district court having sat through the entire trial [00:30:06] Speaker 00: said that we had raised the issue, quote, throughout the course of this litigation. [00:30:13] Speaker 00: That's something that the district court found. [00:30:16] Speaker 00: With respect to viscosity, I'd like to come back to, I know you had asked about viscosity with respect to merchantability. [00:30:24] Speaker 00: At the motion to compel hearing, something else, a third inaccurate representation to the court and to us, Phillips Council, quote, [00:30:33] Speaker 00: Viscosity and the calculation of CCAI involving viscosity are not at issue in this case. [00:30:42] Speaker 02: What page is that at? [00:30:44] Speaker 00: That is at appendix page 0327. [00:30:47] Speaker 04: Was there a switch of counsel or anything? [00:30:50] Speaker 04: Is there something that I'm missing? [00:30:51] Speaker 04: As a trial judge, I'm just asking. [00:30:54] Speaker 04: Because I just get the sense that Maggie Mae was sort of like swimming uphill or swimming upstream. [00:31:02] Speaker 04: Was there? [00:31:03] Speaker 04: Was there a change of council on Phillips side? [00:31:05] Speaker 00: There was not a change of council that I'm aware of on either side, Your Honor. [00:31:10] Speaker 04: Then let me ask a flip side, while looking for the site. [00:31:18] Speaker 04: Were you objecting continuously? [00:31:20] Speaker 00: Your Honor, we did not object to particular questions, because we were surprised by it when it started happening. [00:31:27] Speaker 04: We knew that they were bringing in an opening the cat was out of the bag at that point the playing field was set we had to start trying to make a strategic decision whether or not to really you know continue to check and highlight the issue or just hope that the as the judge found well it was just a couple of seconds or minutes or whatever and hope for that [00:31:45] Speaker 00: When it first started happening, Your Honor, as the judge had said when we had objected, an email went in, we objected to the issue. [00:31:53] Speaker 00: The court then took it up right before jury selection and said, I'm going to allow it in. [00:31:58] Speaker 00: But you can raise it to the extent they bring in the evidence. [00:32:02] Speaker 00: It starts coming in day three. [00:32:04] Speaker 00: And what do we do? [00:32:05] Speaker 00: We go up and say, Your Honor, we again reiterate this objection. [00:32:10] Speaker 00: And we tried to crystallize the issue a little bit more for him. [00:32:14] Speaker 00: And I think the judge started to understand the issue, because he said, you can file for a curative instruction. [00:32:19] Speaker 00: The next morning, we file for a curative instruction. [00:32:22] Speaker 00: And the judge took it up a day later. [00:32:24] Speaker 00: So after the curative instruction is, they have done this throughout the entire, the cat is out of the bag. [00:32:29] Speaker 00: They have been making this argument. [00:32:30] Speaker 04: We are on that front. [00:32:32] Speaker 04: I think I stepped on Judge Kroll's question. [00:32:34] Speaker 04: I'm sorry. [00:32:34] Speaker 04: You were looking for this site, as I recall. [00:32:39] Speaker 04: No? [00:32:40] Speaker 04: I know. [00:32:41] Speaker 04: You're good? [00:32:42] Speaker 04: Okay. [00:32:42] Speaker 04: Anything further, counsel? [00:32:44] Speaker 00: Uh, no. [00:32:46] Speaker 00: Okay, good. [00:32:46] Speaker 00: That's great. [00:32:47] Speaker 00: Thank you. [00:32:48] Speaker 05: Thank you, counsel. [00:32:49] Speaker 05: Take another submission.