[00:00:00] Speaker 02: Our first case for argument is 23-2043, wonderland versus even flow. [00:00:07] Speaker 02: Before we begin the argument time, I ask that both counsel come forward. [00:00:11] Speaker 02: We have some questions about confidentiality. [00:00:13] Speaker 02: So I'd like both counsel, you can either stand where you are or come to the podium, your choice. [00:00:17] Speaker 02: I don't care. [00:00:18] Speaker 02: But both do the same thing. [00:00:20] Speaker 02: So either both come forward or both stay put. [00:00:22] Speaker 02: All right, what we want to understand is there is some material in the cross appeal that is highlighted and designated as confidential. [00:00:31] Speaker 02: And we have some questions about it. [00:00:32] Speaker 02: Some of it has to do with technical terms related to particular car seats, which are, by the way, throughout the briefs and throughout the lower court opinion, not marked as confidential. [00:00:44] Speaker 02: So it's very confusing to me why particular words would be marked as confidential in the cross appeal. [00:00:50] Speaker 02: when they're otherwise used and not marked confidential elsewhere in the briefs. [00:00:56] Speaker 02: So whoever would like to speak to this, I'd like to know, because we want to ensure that we respect anything that truly needs to be confidential, but we're a little confused about some of the markings. [00:01:06] Speaker 00: Yeah, is this the name of the email? [00:01:09] Speaker 00: Is that the word that we're about? [00:01:10] Speaker 02: No, you have tons of, I'll give you an example, because throughout, I think you'll agree with me, throughout the briefs in general, the word tubes appears, right? [00:01:18] Speaker 02: But suddenly in the cross appeals, it's marked as confidential. [00:01:21] Speaker 02: The word tubes. [00:01:21] Speaker 02: The isolated word tubes. [00:01:23] Speaker 02: Why? [00:01:24] Speaker 02: Why would that be marked as confidential? [00:01:25] Speaker 00: That's a great question, Your Honor. [00:01:26] Speaker 00: It probably should not have been. [00:01:27] Speaker 02: OK. [00:01:28] Speaker 02: So I think that here's the deal. [00:01:30] Speaker 02: We're going to treat words like that as not confidential. [00:01:34] Speaker 02: If there is something that any of us say at any point, just kind of like wave your hand, stop us. [00:01:41] Speaker 02: If you think we're crossing a line, we can delay posting this on the website if necessary. [00:01:47] Speaker 02: I don't think that we're going to trample on confidentiality. [00:01:50] Speaker 02: Now, with regard to the email, we have a rule here in this court that how many words judge for it? [00:01:56] Speaker 02: I think it's 15. [00:01:57] Speaker 02: You're only allowed to have 15 words marked as confidential. [00:02:00] Speaker 00: You can move for additional words, but you need to move. [00:02:03] Speaker 02: Did you do that in this case? [00:02:04] Speaker 00: I do not believe so, Your Honor. [00:02:05] Speaker 02: So how is it that you've marked the entire email stream confidential? [00:02:09] Speaker 02: That would exceed our 15-word limit. [00:02:11] Speaker 02: How about this? [00:02:12] Speaker 02: Why don't you tell me, because I'm not going to treat that entire email as confidential, tell me what about that email in particular you would like to maintain? [00:02:20] Speaker 02: For example, the person's name or the email address, or what about that email do you think is confidential? [00:02:26] Speaker 02: Because you've not been consistent with our rules. [00:02:29] Speaker 02: If you're only allowed 15 words, you agree the email is way more than 15 words, right? [00:02:32] Speaker 02: Sure. [00:02:33] Speaker 02: OK, so tell me what about it is what you want us to be mindful of the sensitivity in, like the future product, for example. [00:02:41] Speaker 00: Yes, so I believe that's like a 40 page email that is probably been provided just for full context of the court I believe and you can correct me if I'm wrong I believe only two pages of it are actually material to the issues on the motion for a new trial So those would be the two pages. [00:02:57] Speaker 00: I don't know if the rest has to be [00:02:58] Speaker 00: maintained in the appendix at all. [00:03:00] Speaker 04: Are you saying those two pages are not confidential, or we can treat them? [00:03:03] Speaker 04: I mean, for example, I mean, there are a few things we all know what we're talking about, some critical sentences and what they mean and so forth. [00:03:11] Speaker 04: Those. [00:03:13] Speaker 00: Oh, I do believe those two pages would constitute confidential information. [00:03:17] Speaker 02: Yeah, but you don't get to do that. [00:03:18] Speaker 02: Under our rules, you can only have 15 words that are confidential absent a motion to the court. [00:03:23] Speaker 02: And you didn't make a motion to the court. [00:03:25] Speaker 02: So I'm trying to figure out how to proceed. [00:03:27] Speaker 02: Why is it you think those two pages are confidential? [00:03:30] Speaker 02: What is it about those two pages? [00:03:31] Speaker 02: If you want to tell me, for example, our future products, which have not yet resulted in commercially available products, [00:03:40] Speaker 02: Should the information related to those should be confidential? [00:03:42] Speaker 02: I think that we can all agree to treat that as confidential, even though it exceeds more than 15 words. [00:03:47] Speaker 02: But I don't think that every word in those emails is directed to future products. [00:03:53] Speaker 02: Some of it is directed to already existing products on the market. [00:03:56] Speaker 02: So why would that be confidential? [00:04:00] Speaker 00: The future products, I do believe, would be confidential. [00:04:02] Speaker 00: The overall thread is about product development and the product development processes that are employed by Evenflow. [00:04:09] Speaker 00: And that does represent some competitive information. [00:04:13] Speaker 00: To be honest, I don't have the full context of the email memorized. [00:04:16] Speaker 02: If you want to take a minute and take a look at it, I'm OK with that. [00:04:20] Speaker 02: Why don't you get the email, both of you, so you have a copy of it. [00:04:27] Speaker 02: We just want to make sure the argument is as productive as possible for us and for you. [00:04:33] Speaker 02: And we don't want to trample on your company's necessary confidentiality. [00:04:41] Speaker 04: 3786, I think it contains the statements that are most relevant to the determination made in this case. [00:04:49] Speaker 04: Maybe it's just me, but I thought it was. [00:04:54] Speaker 04: You know what I'm talking about? [00:04:56] Speaker 00: That is correct. [00:04:59] Speaker 04: Is that up for grabs? [00:05:01] Speaker 04: Can we talk about that? [00:05:03] Speaker 04: What's problematic? [00:05:04] Speaker 04: Why should that be? [00:05:06] Speaker 02: There is the discussion in that email of an existing product. [00:05:10] Speaker 02: that is already on the market. [00:05:12] Speaker 02: There's also a discussion in some of these emails about future development. [00:05:18] Speaker 02: Can we agree that to the extent that the email is speaking to an existing product that is already commercially available, we can ask questions about that portion of the email? [00:05:27] Speaker 02: Absolutely, Your Honor. [00:05:29] Speaker 03: Do you agree? [00:05:30] Speaker 03: Yes, Your Honor. [00:05:31] Speaker 03: Well, that's his information, right? [00:05:34] Speaker 03: He can reveal whatever he wants to write. [00:05:37] Speaker 02: You don't care. [00:05:38] Speaker 02: We defer on that issue, too. [00:05:40] Speaker 02: All right. [00:05:40] Speaker 02: OK, good. [00:05:41] Speaker 02: Does that take care of it? [00:05:43] Speaker 01: Yeah, I think. [00:05:44] Speaker 02: Is that OK? [00:05:44] Speaker 02: OK, so I think that we're all on the same page. [00:05:47] Speaker 02: Thank you. [00:05:47] Speaker 02: And now we'll be able to start the argument and hopefully have a fruitful discussion. [00:05:53] Speaker 02: Thank you, Your Honors. [00:05:54] Speaker 02: Thank you. [00:05:56] Speaker 02: OK, Mr. Henkel, please proceed when you're ready. [00:06:01] Speaker 00: Good morning, your honors. [00:06:02] Speaker 00: My name is Aaron Hankel. [00:06:03] Speaker 00: I'm counsel for Evenflow Company, Inc., in this matter. [00:06:07] Speaker 00: May I please the court? [00:06:11] Speaker 00: This is an appeal involving a jury verdict of infringement on two patents. [00:06:17] Speaker 00: Counsel will admit that this does not, this case does not involve the densest technology or the most complicated products. [00:06:23] Speaker 00: But it does present some significant questions about vital safeguards that this court and the Supreme Court have imposed on trial courts. [00:06:31] Speaker 00: namely the duty to resolve legitimate disputes over claim scope and to do so properly. [00:06:37] Speaker 00: The two patents that are at issue in this case are the 043 patent and the 951 patent. [00:06:42] Speaker 00: They both generally relate to Carsey. [00:06:44] Speaker 04: There's so many issues here, so I'm going to have to cut in because the clock is running. [00:06:48] Speaker 04: And I've got just odds and ends that I'm just interested in. [00:06:51] Speaker 04: One, in terms of the bucket of accused products that the jury said were infringed, what portion of those were the 401 and what portion were the 31? [00:07:02] Speaker 04: And let's look at the 043 patent. [00:07:05] Speaker 00: For the 043 patent, the 401 products [00:07:08] Speaker 00: Frankly, in the case, the 401 products, Your Honor, are the every fifth and every kid. [00:07:13] Speaker 00: Those are the brand names. [00:07:14] Speaker 00: One sold at Walmart. [00:07:15] Speaker 00: One sold at Target. [00:07:16] Speaker 00: They were found to infringe the 043 patent under the doctrine of equivalence. [00:07:20] Speaker 00: They were not found to infringe. [00:07:21] Speaker 00: Right. [00:07:21] Speaker 04: No, I understand that. [00:07:22] Speaker 04: I just want to know of the bucket of infringing products, what portion of those, the bucket of the products found to infringe the 043 patent, what portion of those were the 401 and which portion were the 31? [00:07:36] Speaker 00: So all accused products in the case were found to infer in C043 patent under the doctrine of equivalence. [00:07:42] Speaker 00: There are two car seats that are four in one, and there are three car seats that are so-called three in one. [00:07:48] Speaker 00: Does that answer your Honor's question? [00:07:51] Speaker 02: What we don't have in this case is any sort of breakdown in either the information presented to the jurors or in the jury special verdict form that splits them up by four in one versus three in one, in terms of, [00:08:06] Speaker 02: damages, for example. [00:08:08] Speaker 02: So I guess what we're getting at is suppose we agree with you on, for example, the locking mechanism with regard to the 4-in-1 patent. [00:08:14] Speaker 02: That issue doesn't apply to the 3-in-1 patent. [00:08:17] Speaker 02: So if we agree with you on that point, maybe we reverse the judgment on the 4-in-1. [00:08:21] Speaker 02: What procedurally do we do with the 0-4-3 patent in the case if that's the only issue we agree with you on on the 0-4-3 patent? [00:08:31] Speaker 02: We're trying to figure out there's so many different issues here. [00:08:34] Speaker 02: And if we agree with you on some but not all, [00:08:36] Speaker 02: What do we do with the case? [00:08:38] Speaker 00: That's a great question, Your Honor. [00:08:39] Speaker 00: That information exists. [00:08:40] Speaker 00: It was obviously used by the jury to calculate the number and the royalty because it is a per unit royalty. [00:08:46] Speaker 00: I do not believe it's in the record. [00:08:48] Speaker 04: uh... so i don't know how that was one of the record is not he was not an appendicitis appeal correct uh... the damages issues were not killed uh... by others uh... because obviously it's of interest let's assume the four o one gets off the plate if there are only two accused two products in the damages calculation for the four one that hardly makes a big difference but you assume that we could calculate the damages because it's a different amount ascribed to the four one and the three one right [00:09:14] Speaker 04: So we could backtrack, or you could backtrack the number. [00:09:19] Speaker 00: Yeah. [00:09:19] Speaker 00: I mean, I think in that situation, a remand to the trial court for an accounting on this issue is a matter of basic math, and the information does exist. [00:09:29] Speaker 04: another cats and dogs question, on the connected to limitation. [00:09:34] Speaker 04: That wasn't subject of this, as I understand the record, and I couldn't find it. [00:09:38] Speaker 04: It seemed not to come up as a claim construction matter, but to come up as a jury instruction matter. [00:09:44] Speaker 04: So can you just quickly tell me how that came to be? [00:09:48] Speaker 04: Did the parties get to brief it? [00:09:50] Speaker 04: Did they put forth their own independent constructions of the connected to, or what? [00:09:55] Speaker 00: We did, Your Honor. [00:09:59] Speaker 00: give you some specific citation. [00:10:00] Speaker 00: But the way that issue developed at the trial court stage was even flow moved for summary judgment. [00:10:06] Speaker 00: You know, under the plain and ordinary meaning of connected to these two claim members must be separate devices. [00:10:12] Speaker 00: There's no dispute that the accused product that's not the case. [00:10:14] Speaker 04: So the public could agree to plain and ordinary meaning? [00:10:17] Speaker 00: Yes. [00:10:17] Speaker 04: The claim construction stage. [00:10:18] Speaker 04: OK. [00:10:19] Speaker 00: And well, that's summary judgment. [00:10:20] Speaker 00: And that summary judgment motion was denied. [00:10:22] Speaker 00: At that time, the trial court decided it was a question of fact for the jury. [00:10:27] Speaker 00: It was during trial, after the close of Wonderland's case, when Eden Flow started presenting its witnesses, that this issue percolated. [00:10:35] Speaker 00: There was an order from the trial court. [00:10:37] Speaker 00: There was some claim construction briefing mid-trial that resulted in being connected to construction that's on appeal. [00:10:44] Speaker 04: So the construction by the judge can refer not only to separate pieces that are later connected, but also to different parts or features that are discreet yet formed out of continuous space material. [00:10:56] Speaker 04: Was that claim construction proper by your friends, or was that just something that the district court judge came up with? [00:11:03] Speaker 00: That was language that was in the court summary judgment order that was parroted back during the trial phase, endorsed by Wonderland, and obviously opposed by Evenflo for the reasons we laid out in our blue brief. [00:11:14] Speaker 04: Well, you say endorsed by Wonderland. [00:11:18] Speaker 04: Was that their proposed construction, or was this just something that the district court came up with? [00:11:23] Speaker 00: The district court came up with the language, and then we filed trial briefs on it, and it was endorsed. [00:11:28] Speaker 00: Their briefing was, yes, we should construe it as Your Honor had proposed that continuous base material. [00:11:35] Speaker 04: On that issue, just, I don't want to, if my colleagues have other questions, I don't want to belabor it, but that question seems to come down, and I think in the district court, to some of the language in the spec for the 951 patent that talks about the use is connected. [00:11:51] Speaker 04: I think he relied heavily, as your friends do, to the use of connected in another portion of the spec, dealing with figure one. [00:11:59] Speaker 04: where it was really one piece. [00:12:01] Speaker 04: You understand what I'm talking about? [00:12:04] Speaker 04: Yes, the headrest. [00:12:05] Speaker 04: I understand there's another embodiment that goes to this in Figure 2, where the pieces are clearly separate, two pieces connected to. [00:12:12] Speaker 04: But how do you get around the other language in the spec that uses the word connected for something that conforms seemingly with what the district court judge says? [00:12:21] Speaker 00: My response to that, Your Honor, would be threefold. [00:12:24] Speaker 00: The first is we're starting with the presumption that this claim that recites separate elements should be construed consistently with that. [00:12:31] Speaker 00: The trial court never made any effort to rebut that presumption in view of the intrinsic record. [00:12:36] Speaker 00: If you look at the claim language, the described embodiments of the polling and connecting members of the driving device, they're always separate. [00:12:43] Speaker 00: Figure two, figure four, figure six. [00:12:46] Speaker 00: So when we're actually talking about what the driving device is, including the amendment that was made during prosecution, it's clear that it's two structures. [00:12:53] Speaker 00: As to the headrest, I recognize that it looks like it's one piece. [00:12:58] Speaker 00: But it's the rest of that context of the statement. [00:13:01] Speaker 00: It's the ability to move synchronously. [00:13:03] Speaker 00: They're still two separate structures. [00:13:05] Speaker 00: They're just formed integrally. [00:13:06] Speaker 00: They're connected. [00:13:07] Speaker 00: But we still have a headrest and a body portion, two things that are connected so that they can move together when you adjust the backrest up and down. [00:13:15] Speaker 04: Well, the other thing that I didn't understand was that that seems to be claim six of the 951 and claim six [00:13:23] Speaker 04: can include the language in the spec about formed in degree and moving, whatever. [00:13:28] Speaker 04: But it doesn't use the word connected in the claim itself, in that claim. [00:13:32] Speaker 00: That's correct. [00:13:33] Speaker 00: That's my recollection, Your Honor. [00:13:36] Speaker 02: Could I ask you to move your argument over to the injunctive relief question? [00:13:43] Speaker 00: Yes, Your Honor. [00:13:45] Speaker 00: For context, Evenclo wasn't planning to address that, and we're fine resting on our briefs. [00:13:50] Speaker 00: But I'm happy to answer any questions that you may have. [00:13:52] Speaker 01: Why don't you address a 951 patent first with respect to the injunction? [00:13:59] Speaker 00: Well, Your Honor, I think the most basic point there, and that injunction was stayed by this court on an emergency motion, was that relief was not requested by Wonderland as they conceded to the trial court at the hearing about it. [00:14:12] Speaker 00: And granting relief that wasn't requested obviously runs a valid due process. [00:14:17] Speaker 00: It was not briefed. [00:14:19] Speaker 00: There's no trial evidence about harms that may be suffered with respect to the 951 patent that is irreparable. [00:14:26] Speaker 00: In fact, the trial record shows that Wonderland doesn't even practice that. [00:14:31] Speaker 04: There seems to be some tension, and maybe it's just in my mind, about when you're looking at irreparable harm, you're looking at whether or not damages are quantifiable. [00:14:41] Speaker 04: That's one of the factors. [00:14:43] Speaker 04: But it seems on the other side of that equation, sometimes damages aren't quantifiable because they're way too speculative. [00:14:51] Speaker 04: So it seems like that's your deal. [00:14:55] Speaker 04: You're saying that the testimony, the evidence that was not sufficient, it wasn't sufficient. [00:15:04] Speaker 04: Taking what the witnesses say is true. [00:15:06] Speaker 04: The district court thought that that witness testimony put him over the line. [00:15:12] Speaker 04: for irreparable harm. [00:15:14] Speaker 04: And I'm trying to understand your position. [00:15:16] Speaker 04: And your position is, yes, they're all true. [00:15:19] Speaker 04: That's what they said. [00:15:20] Speaker 04: But even if you take what they said, that isn't sufficient to establish a case. [00:15:24] Speaker 04: So if that's the case, tell us why it's not sufficient. [00:15:27] Speaker 04: I'm on a deferential standard of review. [00:15:31] Speaker 00: Absolutely. [00:15:32] Speaker 00: I mean, I think there are two primary responses to that. [00:15:35] Speaker 00: The first is that the alleged harm that occurred in this case is by Graco, a customer of Wonderland. [00:15:41] Speaker 00: Not an exclusive licensee, but just a customer. [00:15:44] Speaker 00: And the harms that it experiences are not the kind that we need to be personal to the patentee to award it. [00:15:48] Speaker 04: Well, let's just simply reject that kind of global black letter law. [00:15:53] Speaker 04: I mean, if you can establish that certain harms would only inure Greco and not to Wonderland. [00:15:59] Speaker 04: That's one thing. [00:16:00] Speaker 04: But if there's a one-to-one sales thing, if everything that Wonderland sells is Greco's product, [00:16:06] Speaker 04: then certain of the elements you're looking at would be the same. [00:16:09] Speaker 04: So why don't you leave that aside and talk about the evidence and the insufficiency of the evidence in your view, even given a differential standard of review. [00:16:19] Speaker 00: Absolutely. [00:16:20] Speaker 00: The Voto case would speak to that. [00:16:22] Speaker 00: But to your question, [00:16:24] Speaker 00: This was kind of a two-market theory presented at trial where basically every sale by even flow of the infringing product takes a sale out of Graco's pocket. [00:16:33] Speaker 00: That is the most quantifiable type of harm that we can do. [00:16:37] Speaker 00: They lost a sale. [00:16:38] Speaker 00: We know what they make. [00:16:39] Speaker 00: We know what the royalty is. [00:16:40] Speaker 00: It's quantifiable. [00:16:41] Speaker 04: It's not irreparable. [00:16:42] Speaker 04: There's a suggestion though, which would be a factor if there's sufficient evidence, that once you buy one Graco product, you buy another Graco product. [00:16:50] Speaker 04: And so there's an unquantifiable but clear harm going forward to the purchase not just of these car seats, but to other products produced by Graco. [00:17:01] Speaker 04: Why was the testimony, in your view, not sufficient to establish that? [00:17:06] Speaker 00: There was testimony on the so-called ecosystem effect. [00:17:10] Speaker 00: It was unsubstantiated and uncorroborated by documentation. [00:17:14] Speaker 00: It was just the witnesses say so, but I recognize that it exists. [00:17:18] Speaker 00: Again, it just comes down to alleged lost sales, and lost sales are not the type of thing like tarnishment of name and brand that we consider irreparable. [00:17:28] Speaker 00: They can be made whole with the check. [00:17:34] Speaker 02: Okay, do you want to save the remaining time for rebuttal? [00:17:37] Speaker 00: Absolutely. [00:17:38] Speaker 02: Okay. [00:17:54] Speaker 02: Council, how do I pronounce your last name? [00:17:56] Speaker 02: Etienne Cummings, Your Honor. [00:17:57] Speaker 02: Etienne Cummings, please proceed. [00:18:00] Speaker 03: Good morning, Your Honors. [00:18:01] Speaker 03: Shamita Etienne-Cummings for cross-appellant Wonderland Switzerland AG. [00:18:06] Speaker 03: I would like to reserve two minutes for rebuttal, please. [00:18:09] Speaker 03: EvenFlo does present a lot of issues in their appeal. [00:18:13] Speaker 03: However, what they did not present is one, or identify, is one reversible error. [00:18:21] Speaker 03: EvenFlo seeks to construe five claim terms across two patents. [00:18:25] Speaker 03: And for each of those five limitations, EvenFlo seeks to relitigate facts [00:18:30] Speaker 03: on substantial evidence review. [00:18:33] Speaker 03: Even Flo further challenges the injunction, asking this court to reweigh. [00:18:38] Speaker 02: I think we know all that. [00:18:39] Speaker 02: Why don't you start, for me, one of the issues that I'm struggling a little bit with is the locking mechanism with regard to the four in one car seat. [00:18:50] Speaker 02: And in particular, where I believe the claim says locking mechanism for selectively detachably connecting the seat back to the seat assembly. [00:19:04] Speaker 02: So where is the locking mechanism for selectively detachably connecting the seat back in the four-in-one system? [00:19:14] Speaker 02: What constitutes that locking mechanism? [00:19:16] Speaker 03: Thank you, Your Honor. [00:19:17] Speaker 03: What constitutes that locking mechanism is what Evenflo identified as the lock rod that sits on the seat back of the car seat for the 4-in-1 car seats. [00:19:25] Speaker 02: So that's just a rod, right? [00:19:27] Speaker 02: So that's just a rod. [00:19:28] Speaker 02: How does a rod selectively detachably connect? [00:19:32] Speaker 02: I don't know how a rod does that. [00:19:34] Speaker 02: I understand how a latch, which reaches out and grabs the rod, does. [00:19:38] Speaker 02: But I don't understand how a rod does that. [00:19:40] Speaker 03: So without the rod, the seat assembly cannot be attached and detached. [00:19:47] Speaker 03: And there was testimony from [00:19:49] Speaker 02: But if I think of a door, I mean, I'm just telling you what's bothering me about this case. [00:19:52] Speaker 02: If I think of a door, right, and there's a lock on the door. [00:19:55] Speaker 02: So you turn the thumb knob to lock the door. [00:19:58] Speaker 02: Of course, it's not going to lock unless there's a recess in the door frame. [00:20:04] Speaker 02: But the question is, which of those two things, the door or the door frame, has the portion [00:20:12] Speaker 02: that detachably locks or that you integrate, you know what I'm saying here. [00:20:17] Speaker 02: And so for me, it's the door that has the portion that locks because that's the part that turns, that's the part that does it. [00:20:23] Speaker 02: The frame is part of the locking mechanism because it's got a receptacle, but it's not the part that causes the locking. [00:20:29] Speaker 02: And that's where I'm running into trouble with the four-in-one car seats. [00:20:33] Speaker 02: Because all you have on the seat back is the rod. [00:20:36] Speaker 02: And the rod doesn't do anything except allow the thing to attach to it or not attach to it by just physically being there. [00:20:45] Speaker 02: And that feels like the receptacle in the door frame or the entry. [00:20:50] Speaker 02: So that doesn't feel like where the selectively detachable connecting portion is. [00:20:56] Speaker 02: It feels like what you connect to, but not what does the connecting. [00:21:00] Speaker 03: For that, we should go back to the language of the claim, where it says a locking mechanism for selectively detachable. [00:21:08] Speaker 03: So it is the lock rod that allows that selectable detachment to occur. [00:21:15] Speaker 03: It does not say a locking mechanism which selectively or that selectively makes the detachment or the attachment. [00:21:24] Speaker 02: Is this a 112-6 term? [00:21:26] Speaker 02: uh... no it is not so lucky mechanism for selectively detaching connecting is not a one twelve six term but the four implies the function what is you've got a structure and then you've got the function [00:21:40] Speaker 03: Because it's not a 112-6 term, that function isn't attributable. [00:21:44] Speaker 03: What we're saying is that without the lock, without the lock rod, without the locking mechanism that is on the seat back, then the seat assembly cannot be attached or detached from the seat back. [00:21:59] Speaker 03: And so, and there is testimony from even, even flows engineers that confirm that. [00:22:05] Speaker 03: There's testimony from the experts that say without the lock rod, you cannot selectively [00:22:10] Speaker 03: attached or detached. [00:22:22] Speaker 03: plus the hooks that come over the lock rod. [00:22:27] Speaker 04: But the hooks, I think what the chief was referring to in part, at least, was that the hooks aren't part of the seat back. [00:22:34] Speaker 04: And the claimed term we're talking about, the limitation, said a seat back having a locking mechanism. [00:22:40] Speaker 04: It doesn't say a seat back that has the metal rod. [00:22:45] Speaker 04: Right. [00:22:45] Speaker 04: So that's the problem, at least, I'm having. [00:22:48] Speaker 03: So the locking mechanism includes the metal rod. [00:22:52] Speaker 03: So the metal rod is part of it. [00:22:54] Speaker 04: But it includes other stuff as well. [00:22:56] Speaker 04: That's my point. [00:22:57] Speaker 04: Right. [00:22:58] Speaker 04: And so if other parts of the locking mechanism are not in the seat back, how does that satisfy the claim limitation? [00:23:05] Speaker 03: Well, to have the entirety of the locking mechanism on the seat back would be [00:23:14] Speaker 03: not feasible because you're attaching two things together. [00:23:17] Speaker 03: And also, we would be rewriting the claim. [00:23:20] Speaker 03: We would be saying that the seatback having the entirety of the locking mechanism. [00:23:28] Speaker 03: Well, wait. [00:23:28] Speaker 04: You're rewriting this. [00:23:29] Speaker 04: It says the seatback having a locking mechanism. [00:23:33] Speaker 04: You are either saying it's the entirety or it's only part of the locking mechanism. [00:23:39] Speaker 04: You're rewriting the claim if you're saying that we should construe the limitation seat back having a locking mechanism to seat back having a portion of the locking mechanism. [00:23:49] Speaker 04: I mean, do you get my question? [00:23:51] Speaker 03: Yes, Your Honor. [00:23:52] Speaker 03: Generally, in claim construction, if there's no absolute saying that the entirety or all of or only, those terms are not placed into the claim construction, [00:24:09] Speaker 03: then a portion or component or part of the locking mechanism being on the seat back is sufficient. [00:24:16] Speaker 03: That means that the seat back has a locking mechanism. [00:24:21] Speaker 04: Really? [00:24:22] Speaker 04: I mean, that's... [00:24:23] Speaker 04: that if you say a seatback has a locking mechanism, we should construe that as a seatback having a portion of the locking mechanism. [00:24:30] Speaker 04: Is that what it comes down to? [00:24:32] Speaker 03: At least a portion of the locking mechanism, or as Judge Moore had said. [00:24:36] Speaker 04: That's not what it says. [00:24:37] Speaker 04: We've seen a lot of claims that have language like that, at least a portion of. [00:24:41] Speaker 04: This says having a locking mechanism. [00:24:44] Speaker 04: I'm just trying to have you help me to get around what I think the language is pretty clear on. [00:24:51] Speaker 03: It is very clear that the rod is part of the locking mechanism. [00:24:57] Speaker 03: There is no dispute that it is the entirety. [00:25:01] Speaker 03: And the district court had construed that as such, that it would be infeasible to require that the entirety of the locking mechanism be on the seat back during summary judgment and also as we were presenting evidence to the jury. [00:25:18] Speaker 03: So at no time during the course of this litigation was it required that the entirety of the locking mechanism be on the seat back. [00:25:28] Speaker 03: In fact, in the summary judgment, [00:25:30] Speaker 03: the court, the lower court opined that it would not be feasible to read the claim in that way because you cannot lock two things together without having part of the locking mechanism be on one component and the other part being on another component to bring them together and to join. [00:25:46] Speaker 02: I think I understand your argument. [00:25:48] Speaker 02: I'm just not sure that you can get around my problem with it, which is I don't have a problem with the whole locking mechanism does not have to be on the seat back, but I think the portion that has to be on the seat back is what the claim says has to be there, which is [00:25:59] Speaker 02: the portion for selectively, detachably connecting. [00:26:03] Speaker 02: And that's the hooks. [00:26:04] Speaker 02: And so that's my problem with what you're arguing. [00:26:07] Speaker 02: I mean, I understand your argument. [00:26:09] Speaker 02: You've made the best argument you can on it. [00:26:11] Speaker 02: Do you want to maybe move on to some of your other issues? [00:26:13] Speaker 02: And if I did not agree with you on the 4-in-1 with regard to the 043, do you agree with your opposing counsel that the result then is for us to remand for the district court to figure out damages? [00:26:28] Speaker 04: I'm correct your honor because they have all the information to calculate the damages on and that's the case wouldn't that I mean there might be other issues with the permanent injunction but wouldn't that be a factor in permanent injunction because the judge evaluated [00:26:43] Speaker 04: the whole universe, including 4-in-1 and 3-in-1. [00:26:47] Speaker 04: So any conclusions he drew with respect to market share and whatever, wouldn't that change the analysis in terms of a permanent injunction if we were to cut out all of 401? [00:26:59] Speaker 03: If you were to cut out all of 401, the analysis would be the same for the 951 as the court. [00:27:06] Speaker 03: Yeah, I'm not talking about the 951. [00:27:07] Speaker 03: I've already taken that off the table. [00:27:09] Speaker 03: I'm talking about the 043. [00:27:11] Speaker 03: For the 043, if [00:27:13] Speaker 03: If it was remanded to determine walking mechanism and infringement, then the court would have to reevaluate the injunction for the 043 also. [00:27:24] Speaker 04: OK, so on the injunction, what specific testimony was there to establish that there was a kind of a product to product thing? [00:27:34] Speaker 04: Like once you bought one product, you're going to buy another product, and another product, and another product of the same? [00:27:42] Speaker 03: There was a testimony from the head of marketing, Ms. [00:27:48] Speaker 03: Carrie Zerlinski, that testified to the fact that the first choice that parents make is often a car seat, and there is brand affiliation with that. [00:27:59] Speaker 03: And so other products like swings and play pens are often combined with that. [00:28:06] Speaker 03: And there's no way of telling whether those sales of those other products that also Wonderland manufactures exclusively for Graco would be impacted. [00:28:21] Speaker 04: This is more of a legal question. [00:28:23] Speaker 04: If there's no way of telling what the impact is, is that sufficient to establish irreparable injury? [00:28:31] Speaker 04: I mean, we have these two concepts about, yes, it's difficult to quantify, but on the other hand, it can't be completely speculative. [00:28:41] Speaker 04: Why isn't that in the speculative bucket, which is problematic for you? [00:28:47] Speaker 03: Because she did testify that, and she had market analysis, that there is a connection between, and she provided that evidence, that there is a connection between buying a car seat and then buying other products that also Gregor sells that Wonderland is manufacturing. [00:29:07] Speaker 04: Can you give me a site in the spec for that analysis that tests the evidence and analysis? [00:29:11] Speaker 03: Because I'm not sure I have it. [00:29:14] Speaker 03: One moment, Your Honor. [00:29:21] Speaker 03: I think it's at JA 8-9 and more particularly that a car seat is the first purchase to spur other purchases for a baby. [00:29:37] Speaker 03: That's Joint Appendix 7-9. [00:29:39] Speaker 04: I can't find it now, but I'll take a look because I didn't see the specificity for [00:29:50] Speaker 04: What's the bottom line? [00:29:51] Speaker 04: What evidence did she have that someone who brought an even flow car seat would necessarily buy a high chair two years down the road? [00:30:02] Speaker 03: I think she cited two marketing surveys and analysis that Greco performed on how products are purchased together or decisions that she could link that when car seats were purchased, then [00:30:18] Speaker 03: than other play pens, swing sets, other things that Wonderland does manufacture. [00:30:23] Speaker 03: Do you have any idea? [00:30:25] Speaker 02: I don't remember seeing any of these marketing surveys that you're referring to, either testimony about them or the actual surveys. [00:30:32] Speaker 02: Do you know where they might be? [00:30:35] Speaker 03: I think the testimony was in a joint appendix 7 through 10. [00:30:43] Speaker 02: Yeah. [00:30:43] Speaker 02: No, that's that testimony. [00:30:45] Speaker 02: That's just court opinion. [00:30:47] Speaker 02: So where can I actually see the testimony? [00:30:55] Speaker 03: I'll have to. [00:31:02] Speaker 02: OK, well, can your co-counsel look at it? [00:31:06] Speaker 03: So it may be a joint appendix 6310 to 12. [00:31:08] Speaker 04: 6310. [00:31:12] Speaker 03: 6310 okay if your co-counsel could look for and I'm sure I'm sorry join the pants 4973 also but there were marketing survey she spoke of marketing surveys I'm not sure that she submitted those marketing she talked about she testified to that somewhere in their testimony is her basing her conclusion of lost [00:31:39] Speaker 02: lost convoy sales on marketing surveys. [00:31:42] Speaker 02: Correct. [00:31:43] Speaker 02: OK, Your Honor. [00:31:44] Speaker 02: Can I ask you to pivot to your cross-appeal on willfulness? [00:31:49] Speaker 02: Yes, Your Honor. [00:31:52] Speaker 03: I am, yes, Your Honor. [00:31:55] Speaker 03: Go for it. [00:31:55] Speaker 03: Tell me about your cross-amble. [00:31:57] Speaker 03: OK. [00:31:58] Speaker 03: What we are saying is that the judge erred because he only looked at the actual knowledge and weighed the probative value [00:32:08] Speaker 03: prejudicial effect on actual knowledge. [00:32:12] Speaker 03: He did not weigh the probative value and the actual effect on the intent to infringe. [00:32:19] Speaker 03: So because there was a stipulation of actual knowledge, any prejudice would outweigh probative value. [00:32:25] Speaker 03: However, a more fulsome analysis should have been done on what is the prejudicial effect [00:32:32] Speaker 03: versus the probative value of a long string of emails, as Your Honor identified. [00:32:37] Speaker 01: And for that reason, we look at the court's opinion of 4-0-0-8, page 8 of the opinion. [00:32:48] Speaker 01: Isn't that enough of an analysis by the court? [00:32:55] Speaker 03: I don't believe so, because in their opinion, he's weighing that prejudicial value toward the intent. [00:33:04] Speaker 03: I'm sorry, toward the actual knowledge of the patent. [00:33:07] Speaker 03: That's going to be different if you're looking at what is the probative value to show the intent of infringement. [00:33:14] Speaker 03: I think I'm out of time, Your Honor. [00:33:16] Speaker 01: The probative value versus the potential risk that's involved in the prejudicial risk. [00:33:24] Speaker 03: But he was only looking at it if there was any prejudice to prove that the parties knew about or even Flo knew about the patent. [00:33:38] Speaker 03: We had already stipulated that even Flo knew about the patent. [00:33:41] Speaker 03: What he didn't weigh was the prejudicial risk [00:33:45] Speaker 03: against the probative value to show intent, to show the long email, to show the people that were on there, to show the timing of the email, to show what they did or did not do. [00:33:55] Speaker 02: Let me ask you something very specific. [00:33:59] Speaker 02: There's a discussion that he gives about how this email goes to future products which are not at issue in the suit, and that might be confusing to people. [00:34:09] Speaker 02: Did he analyze the fact that the email expressly mentions the Evenflow Evolve product might also involve this? [00:34:17] Speaker 02: And could you advise how to avoid infringement ingeniously? [00:34:23] Speaker 02: I don't remember him addressing the fact that this email, in fact, identifies one of the five products at issue in this case. [00:34:34] Speaker 02: One of the two patents at issue in this case suggests infringement [00:34:38] Speaker 02: of the product by the patented issue in this case and asks how we can basically redesign it to avoid infringement. [00:34:47] Speaker 02: That's what I thought personally I saw as being missing from his analysis. [00:34:50] Speaker 02: How is that prejudicial or not probative or whatever? [00:34:56] Speaker 03: No, I agree with you, Your Honor. [00:34:57] Speaker 03: That is very probative to show that the intent not to infringe or the intent to infringe. [00:35:03] Speaker 03: And he didn't analyze that against [00:35:07] Speaker 03: showing the intent to infringe as you've just outlined, Your Honor. [00:35:11] Speaker 02: Let me ask one more question. [00:35:14] Speaker 02: At the motion to eliminate, didn't y'all offer that the emails could be redacted as necessary? [00:35:20] Speaker 02: He could give a limiting instruction to address the concerns that there were many ways to narrow what portion of this email would, in fact, have been presented to the jury. [00:35:33] Speaker 02: I assume the part you really want is the part that says, we're worried about the even flow evolved seat infringing the 043 patent. [00:35:39] Speaker 02: I assume that's the little nugget that you really wanted the jury to see, that that was expressly articulated. [00:35:48] Speaker 03: Is that fair? [00:35:49] Speaker 03: That's fair, Your Honor. [00:35:50] Speaker 03: And also to see that there was a long set of emails of discussion. [00:35:55] Speaker 02: Even before it got to that point while they were developing the infringing products and the features So there's another we don't have evidence that he found and I don't have any reason to doubt it or you haven't convinced me that most of this email is to is is chain is to the design of a product that wasn't one of the products accused of infringement and [00:36:14] Speaker 03: But if there's another line in there that does talk about the arms, the attachment arms, or what we're calling the attachment arms. [00:36:22] Speaker 03: And so there is a feature that can still be used in future products. [00:36:28] Speaker 03: And we wanted to show the jury that they did not do anything to address that one feature. [00:36:35] Speaker 04: OK, I'm a little confused. [00:36:36] Speaker 04: And I'm sure you know the record better than I. [00:36:41] Speaker 04: I think like the chief, I mean, there's at least one nugget in here. [00:36:46] Speaker 04: But was this fight about that email, or was it kind of an all or nothing? [00:36:53] Speaker 04: The appendix seems to have like 50 pages or 30 pages of emails. [00:37:00] Speaker 04: And when he was saying this is confusing and yadda, yadda, yadda, I could see that being the comment with respect to the entirety of the email chain. [00:37:11] Speaker 04: So was it because you were fighting the wrong fight? [00:37:14] Speaker 04: Was the fight only about, can we put this whole chain of emails and not just with respect to the one email, which I think there's concern about? [00:37:25] Speaker 03: No, Your Honor, to be clear, the crux of the fight was really to have what Judge Moore outlined in that one email that pinpointed, that showed the patent, that showed the claim of the patent, [00:37:40] Speaker 03: and made the one statement underneath that. [00:37:43] Speaker 03: So we're really talking about that one section is really the crux of the patent. [00:37:47] Speaker 04: And you made a separate argument with respect to that section? [00:37:50] Speaker 03: Yes, we did, Your Honor. [00:37:51] Speaker 01: Did you ever renew your motion right before trial or during trial? [00:37:56] Speaker 01: I mean, the court does say that, at appendix 4008, it says, however, if during Evenflo's presentation of evidence or testimony, evidence is developed which potentially changes the result, the court will reconsider its ruling. [00:38:10] Speaker 01: Did you ever ask it to reconsider its ruling? [00:38:12] Speaker 03: Yes, we did, Your Honor. [00:38:14] Speaker 03: It was during the examination, I believe, of one of Evenflo's witnesses when we did renew that we would like to bring in the Dracula Project email. [00:38:25] Speaker 03: And that was denied. [00:38:27] Speaker 01: Wouldn't this action taken by the court indicate that it took a rather reasoned approach to this issue? [00:38:38] Speaker 03: I think the court was still looking at just one prong of willfulness in its approach. [00:38:44] Speaker 03: And it was reasoned in that one prong to determine that there was knowledge. [00:38:50] Speaker 03: But the court really did not weigh or articulate to us that he weighed the evidence on the intent to infringe and how the probative value of that email to the intent to infringe. [00:39:05] Speaker 02: OK. [00:39:06] Speaker 02: Thank you, counsel. [00:39:07] Speaker 02: Thank you. [00:39:08] Speaker 02: We're going to hear from Mr. Henkel. [00:39:11] Speaker 02: Mr. Henkel, she went over by five minutes. [00:39:14] Speaker 02: So if you need extra time, we will certainly extend the amount of time you have left. [00:39:23] Speaker 02: Why don't you just put eight minutes on his clock? [00:39:25] Speaker 02: You don't have to use all eight minutes, Mr. Henkel. [00:39:27] Speaker 02: But we're going to give you eight minutes on your clock. [00:39:28] Speaker 00: I understand brevity is important here. [00:39:30] Speaker 00: And I appreciate the accommodation. [00:39:36] Speaker 02: You want to start with willfulness? [00:39:37] Speaker 02: Do you mind starting with willfulness? [00:39:39] Speaker 00: I can absolutely start with willfulness. [00:39:41] Speaker 00: I also have a citation on the testimony about the loss of sales of other products, if it's helpful. [00:39:47] Speaker 00: But yeah, we can start with the willfulness question. [00:39:50] Speaker 00: I think the district court did not consider this issue in a vacuum of an email. [00:39:57] Speaker 00: This was a motion to eliminate about the subject matter generally. [00:40:00] Speaker 00: And he went through and poured through deposition designations, related testimony. [00:40:04] Speaker 00: The author of this email was never to post. [00:40:07] Speaker 00: The email goes out to folks. [00:40:08] Speaker 00: They're asked about it. [00:40:09] Speaker 00: They don't know. [00:40:10] Speaker 00: So all those objections. [00:40:13] Speaker 02: I don't understand. [00:40:15] Speaker 02: Number one, he said something about this might be privileged. [00:40:19] Speaker 02: Well, you all disclosed it. [00:40:20] Speaker 02: You never tried to call it back. [00:40:21] Speaker 02: To this day, you haven't tried to call it back. [00:40:23] Speaker 02: So the privileged idea is out the window. [00:40:24] Speaker 02: That can't justify anything at all. [00:40:26] Speaker 02: Then there's something about hearsay, but they're not offering it for the truth of the matter asserted. [00:40:30] Speaker 02: They're offering it for the fact that you all didn't do anything, even though somebody brought to your attention the patent, the exact claim limitation, and your exact product accused of infringement in this one little narrow email. [00:40:45] Speaker 02: see how hearsay is at all applicable here. [00:40:48] Speaker 02: So all I'm left with is prejudice versus probative value. [00:40:52] Speaker 02: And to the extent that in the motion in limine, they did specifically argue to him that if he had any concerns, they were fine with redactions, with cautionary instructions to the jury, all of that. [00:41:04] Speaker 02: Why do we defer? [00:41:06] Speaker 02: I mean, I'll be honest. [00:41:08] Speaker 02: This is like a smoking gun in willfulness. [00:41:10] Speaker 02: You've got an email that alerts your company [00:41:14] Speaker 02: to the exact product accused of infringement, infringing the exact claims at issue of the exact patent, and even identifying the claim terms. [00:41:23] Speaker 02: I mean, we don't often see a smoking gun in patent cases, but this feels like a smoking gun. [00:41:27] Speaker 02: I don't see how something could be more probative than this. [00:41:32] Speaker 02: Now, I understand the whole email, but it seems like they offered a lot of solutions in terms of redactions or cautionary instructions. [00:41:39] Speaker 02: I don't see how you keep this sentence out. [00:41:41] Speaker 00: Your Honor, with due respect, I disagree. [00:41:44] Speaker 00: There was stipulation in the case. [00:41:47] Speaker 00: Witnesses were asked. [00:41:48] Speaker 00: They knew about the 043 patent as early as 2014. [00:41:50] Speaker 00: They had reviewed and seen claim one of the 043 patent as early as 2014. [00:41:55] Speaker 02: But that's knowledge. [00:41:57] Speaker 02: Correct. [00:41:58] Speaker 02: There's two portions of willfulness. [00:42:01] Speaker 02: There is knowledge of the patent, which everyone is stipulated to. [00:42:05] Speaker 02: That's not the issue. [00:42:06] Speaker 02: And the second issue is intentionality. [00:42:09] Speaker 02: did you knowingly take steps that amounted to infringement, that you knew these were going to be infringement? [00:42:17] Speaker 02: And here, that's the hardest thing to prove in willfulness. [00:42:19] Speaker 02: It's not knowledge to patent. [00:42:20] Speaker 02: That's never the hard thing to prove. [00:42:21] Speaker 02: The hard thing to prove is that the steps that they took they knew would potentially be infringing. [00:42:26] Speaker 02: And that's what this email is sort of a smoking gun evidence of. [00:42:31] Speaker 00: In fairness, Your Honor, my response to that would be to the court weighed this evidence in the totality of the testimony from everyone that was [00:42:39] Speaker 00: deposed. [00:42:41] Speaker 00: And there was a slew of deposition designations. [00:42:44] Speaker 00: Our objections were sustained in connection with testimony about this email. [00:42:48] Speaker 00: The author of the email was never deposed. [00:42:50] Speaker 00: We do not know precisely what she meant. [00:42:52] Speaker 00: One of the big reasons for the prejudicial effect outweighing the probative value of this email is the clear and obvious language barriers [00:42:59] Speaker 00: that exists between... I don't see, it's in English. [00:43:02] Speaker 02: I don't see, I don't have, I don't even see a grammatical flaw in the portion of the email that they want admitted. [00:43:08] Speaker 02: I don't, I mean, I don't understand what, I mean I guess she abbreviated the word please by PLS, but that seems pretty LOL to me, you know, so I'm not really sure what [00:43:20] Speaker 02: I don't understand. [00:43:22] Speaker 02: I mean, yeah, there's some stuff that looks like it's in, I guess, maybe Chinese. [00:43:26] Speaker 02: I'm not even sure what language. [00:43:28] Speaker 02: But that's not the part that they care about. [00:43:31] Speaker 02: I think they're fine with redacting the Chinese. [00:43:33] Speaker 02: Are you fine with redacting the Chinese? [00:43:35] Speaker 02: Yes, Your Honor. [00:43:35] Speaker 02: OK, thank you. [00:43:37] Speaker 00: Your Honor, there is, I think, an apparent language barrier. [00:43:41] Speaker 00: There's a reference to the the claim requiring locking of booster seat lower section two tubes That is not a reference to claim one of the 043 patent Potentially, it's a reference to the Chinese equivalent or the language that's used in that patent But this was a weighing factor that the trial court did and he found that that Prejudicial effect of the language barrier alone or is a contributing factor that warrants exclusion [00:44:05] Speaker 00: I would also like to return to the privilege issue. [00:44:08] Speaker 00: Your Honor had mentioned that. [00:44:08] Speaker 01: Could you say that overall that the email is speculative? [00:44:13] Speaker 01: I mean, it uses the words like it might fall under, fall under below. [00:44:20] Speaker 01: I don't know what that means. [00:44:23] Speaker 01: It says it could also find that then a product is named, might also involve this. [00:44:34] Speaker 01: And I don't know what that means. [00:44:38] Speaker 01: Where can you point in the record to show us that the court thought its way through all of this? [00:44:47] Speaker 00: Appendix 4008, that's a district court's order granting the motion to eliminate. [00:44:51] Speaker 01: That's that part of it I read before? [00:44:54] Speaker 00: Yes, Your Honor. [00:44:55] Speaker 00: And it also came up in the context of J-Moll when they did move for new trial. [00:45:00] Speaker 00: I don't have that precise citation. [00:45:02] Speaker 00: Maybe my colleague can grab it. [00:45:04] Speaker 00: But they renewed this argument. [00:45:05] Speaker 00: And it was, again, rejected for many of the same reasons that are listed in the court's order on the motion and limiting. [00:45:12] Speaker 01: And you heard me ask before whether there was a follow-up on the motion to exclude prior to trial. [00:45:23] Speaker 01: And did that happen, Ryan, immediately prior to trial or during the trial itself? [00:45:27] Speaker 00: Your honor, my recollection is that it happened during trial and it was basically that Evenflow opened the door. [00:45:34] Speaker 00: Let the Dracula email come in. [00:45:37] Speaker 00: And the court disagreed. [00:45:37] Speaker 01: So the court didn't slam shut the decision on the parties. [00:45:41] Speaker 01: It allowed the parties and also the case to evolve and reconsider the, potentially reconsider the decision? [00:45:50] Speaker 00: Absolutely. [00:45:51] Speaker 00: If Evenflow offered or provided testimony that [00:45:56] Speaker 00: in any way ensnared the relevancy or changed court's calculus. [00:46:00] Speaker 00: Wonderland was, of course, free to revisit the issue. [00:46:03] Speaker 00: I do want to address some of the merits arguments, but I do want to return real quickly to privilege. [00:46:09] Speaker 00: It's Appendix 3785. [00:46:11] Speaker 00: This is the response to the email. [00:46:15] Speaker 02: They're asking to send the- Appendix 375 or 3785? [00:46:18] Speaker 00: 3785. [00:46:20] Speaker 00: It's the first page of the email where they're asking to send the lawyer letter [00:46:24] Speaker 00: to the author of the original email. [00:46:27] Speaker 00: We're not saying this email is privileged. [00:46:30] Speaker 00: But 298, there is a lawyer letter. [00:46:34] Speaker 00: And we have not waived our privilege on that. [00:46:36] Speaker 00: And suggesting to the jury that this letter exists without us being able to explain what it says is [00:46:44] Speaker 00: highly prejudicial. [00:46:45] Speaker 00: And so I do think there's a clear privilege issue. [00:46:47] Speaker 02: Well, you don't have to turn the lawyer letter over. [00:46:49] Speaker 02: Nobody said that. [00:46:50] Speaker 02: And they expressly, I remember this discussion in particular in the motion in Lemonade, where they made it clear to the judge that that could be redacted, and they'd be OK with that in its entirety. [00:46:59] Speaker 02: So the jury would never even know that there was a lawyer letter that they're not getting to see. [00:47:05] Speaker 00: But the context of the original request is a request for that lawyer letter. [00:47:09] Speaker 00: She doesn't use that language, but that is clear from the contemporaneous response to her email that she's asking basically, tell us what our design strategies were or whatever. [00:47:20] Speaker 00: What's in the lawyer letter? [00:47:21] Speaker 00: Pass it along. [00:47:22] Speaker 00: That is a request. [00:47:25] Speaker 00: On the balancing scale, the court weighed the issue and found that it tended to be more prejudicial than it is probative. [00:47:32] Speaker 00: And that's the trial court's prerogative with an abusive discretion. [00:47:35] Speaker 04: OK. [00:47:36] Speaker 04: You're going to give us a citation to the record on the PI. [00:47:41] Speaker 00: Oh, yes. [00:47:42] Speaker 00: Of course. [00:47:42] Speaker 00: I have it, and I will defer to my colleague. [00:47:47] Speaker 00: But I have it as Appendix 5674. [00:47:51] Speaker 00: This is the direct testimony of Renee Wong. [00:47:54] Speaker 00: She is a corporate representative. [00:47:56] Speaker 04: But she was referring to another witness. [00:48:01] Speaker 04: She was talking about some other witness testimony. [00:48:04] Speaker 00: I believe she was talking about a Graco employee, Ms. [00:48:08] Speaker 00: Ferslecki, if I mispronounce that. [00:48:11] Speaker 00: This is a citation of which I'm aware of. [00:48:14] Speaker 00: There's a point blank question. [00:48:16] Speaker 00: Have you lost sales of other child products? [00:48:19] Speaker 00: How do you know that? [00:48:20] Speaker 00: And she says no more than parents will buy other products under the same brand, so maybe they make difficult decisions. [00:48:25] Speaker 00: And she goes on. [00:48:25] Speaker 00: So it's anecdotal. [00:48:26] Speaker 00: It's not picked up. [00:48:27] Speaker 04: And what's the citation on that? [00:48:29] Speaker 00: Appendix 5674. [00:48:32] Speaker 00: That's trial page 584, 13 through 25. [00:48:35] Speaker 02: So just to be clear, opposing counsel represented to us that one of the witnesses testified about lost sales with reference to marketing surveys. [00:48:46] Speaker 02: The surveys may not have been introduced, but she claimed the testimony clearly referenced the fact of surveys. [00:48:54] Speaker 02: Is that accurate? [00:48:56] Speaker 00: I looked. [00:48:58] Speaker 00: I'm not in a position to confirm or deny that. [00:49:02] Speaker 00: I trust her candor to the court. [00:49:04] Speaker 02: I like the way that you handled all that. [00:49:06] Speaker 02: Thank you. [00:49:06] Speaker 02: Is there anything else you want to add? [00:49:09] Speaker 02: Because we didn't really give you a chance. [00:49:11] Speaker 02: We kind of dove in. [00:49:12] Speaker 02: And we're going to give her two minutes on rebuttal that she asked for. [00:49:15] Speaker 02: So if there's anything else you want to say, we're happy to hear it. [00:49:17] Speaker 00: Yes, there is one point on the marriage side that I was hoping to just impress. [00:49:22] Speaker 00: We have obviously briefed up why we think the engagement term should have been construed at claim construction. [00:49:27] Speaker 00: We were told it would at summary judgment, but that didn't happen. [00:49:30] Speaker 00: We believe it should be construed. [00:49:32] Speaker 00: And under that construction, you can reverse the judgment. [00:49:36] Speaker 00: But to focus on what the jury actually found, there's a doctrine of equivalence infringement issue on the 043. [00:49:45] Speaker 00: We would urge the court to consider the argument that we outlined on Dr. Tamron's DOE opinions. [00:49:51] Speaker 02: So one thing, I mean, this is rebuttal. [00:49:54] Speaker 02: And she does not get to respond to your case in chief. [00:49:56] Speaker 02: On her rebuttal, she only gets to respond to willfulness. [00:49:59] Speaker 02: So you have to contain yourself to the issues you raised in your opening argument. [00:50:02] Speaker 02: It's not fair, for example, engagement. [00:50:04] Speaker 02: You didn't talk about that in your opening argument, so she didn't talk about it. [00:50:07] Speaker 02: So it's not fair for you to use your rebuttal because she doesn't get to respond to new stuff. [00:50:11] Speaker 02: But anything that we talked about already, like the four and one or the locking mechanism, anything that we've already talked about that you want to discuss is fair game for now. [00:50:20] Speaker 02: Because I'm going to hold her to the same standard, right? [00:50:26] Speaker 00: No, Your Honor. [00:50:28] Speaker 00: If that's the rules of the game, then I don't have anything further. [00:50:32] Speaker 00: I appreciate the court's time. [00:50:33] Speaker 02: Thank you so much, Counsel. [00:50:35] Speaker 02: We have our two minutes of rebuttal, which will be limited, obviously, for the cross-appeal issue, which is willfulness. [00:50:45] Speaker 03: Thank you, Your Honors. [00:50:47] Speaker 03: Thank you for the site, Counsel, for Mrs. Wong's testimony. [00:50:51] Speaker 03: She's the CEO. [00:50:52] Speaker 03: And the site is appendix 4973 from Carrie Straczynski's testimony. [00:51:00] Speaker 03: And your honor is correct that there weren't surveys submitted, but she did testify to her knowledge in the marketing area. [00:51:11] Speaker 03: as the email indicated that Evenflo knew that there was a specific infringement problem and that Evenflo took no action. [00:51:19] Speaker 03: And that's exactly what the email indicated in two of the emails, the side-by-side of those emails. [00:51:28] Speaker 03: So therefore, we ask that the court reverse that finding so that the district court can look at and weigh the probative value [00:51:39] Speaker 03: and the prejudicial effect of the email as it pertains to intent. [00:51:47] Speaker 03: Otherwise, we rest on our briefs for all of the arguments. [00:51:51] Speaker 03: Thank you, Your Honor. [00:51:53] Speaker 02: OK. [00:51:53] Speaker 02: I thank both counsels. [00:51:54] Speaker 02: This case is taken under submission.