All right. United States for the field. But the federal circuit is now open and said that the United States from the Army for the first case this morning is 0 51287 action gaming the Alliance gaming Mr
. Gabriel Gabriel. Good morning Your Honours
. May the police accord. Your Honours were here today because of a fundamental error made by the District Court in connection with jury instructions regarding the claim construction of the claims that issued in the lawsuit that resulted in a jury verdict which we contend should be reversed because it was prejudicing error and those instructions
. Very specific. We're not here to play games
. That's right. We played games in the District Court but that doesn't show up too much in the record
. Correct. What occurred was even though the parties had vigorously litigated the issue of whether there was a limitation in the methods steps that issue which required that the steps be performed in a certain sequence and that was standing the fact that the court in its claim construction recognized that that sequence was a limitation and there was a required sequence and notwithstanding the fact that there was one instruction that addressed that sequence in a critical instruction which was given to the jury on how the jury could determine whether there was infringement under the doctrine of equivalence which was the only infringement issue in the case
. The jury was told it could decide whether that sequence limitation existed. But it seems to me Mr
. Gabriel when maybe you can clarify what I'm missing here that your arguments to the extent that they might have some merit would go to the fact that the the differences were substantial or there is a limitation and you can't find equivalence because it violates the limited it obviates the limitation and aren't those issues really issues that should have been challenged on Jamal. It seems to me that you're hurtle the road you have to cross to get by the jury instructions which are granted or confusing perhaps in some places or whatever but that's a pretty high hurdle
. So I guess at bottom what in to ask for Jamal and make the arguments that seems underlie what you're saying about the jury instruction that content. Well, it doesn't underlie it's a different argument because this goes to the fundamental question of the respective roles of the court and the jury when it the jury is told and this is in the appendix on a zero zero seven two if you find the steps must be performed in a sequence that was an instruction to the jury which was objected to the jury was told it could decide whether there was that limitation that's a that is a fundamental error in jury instructions but there were other places in the I mean the jury instructions go on and on and on and there are other places in the jury instruction are they're not where it was quite clear judge makes claim construction here's the claim construction and really said the right thing and completely proper am I right? Well, that's true you're on it but this is not a claim construction jury instruction
. This is telling the jury how it should decide whether there is infringement under the doctrine of equivalents so even if there are instructions and there were that talk about sequence being a limitation the jury was told okay you have these instructions the court told you what the claims are all about the court can't through the claims now what should the jury do to determine whether there's infringement under the doctrine of equivalents and what the jury was told was you can decide whether that limitation exists that's what the instruction says if you find the steps must be performed in a sequence not only that this is 0 0 7 2 in the appendix is that reversible error though sure it is your honor because it hands to the jury the issue of construing the claims couldn't the jury have decided that either way this infringement could it have decided that my team did had maybe it did it could have your honor but the issue on whether this instruction is prejudicial is could was there evidence before the jury from which it could have the side there was no infringement under the doctrine of equivalents and aren't we submit there was because the jury is being told if you look at the language of instruction 28 it's a it's a legal argument about whether sequence is a limitation in fact it's a legal argument lifted right out of the alterus case because it says to the jury if it is impossible to perform the steps described in the claims without performing them in the sequences written the multiplayer poker must be played in that order where it's possible to perform the steps before during or simultaneously with another step that's a legal argument that's an argument in the alterus case 318 f3 1363 when this court was reviewing whether there was a proper claim construction it looked at what was argued to the court on whether there was a required sequence and here's what this court said the patent he argued the steps can occur before after or simultaneously with or between any of the other steps that's a legal argument that was for the court to determine the court can't suggest to the jury not suggest instruct the jury you can decide you decide whether there's a required sequence that's given to the jury something that's exclusively within the province of the court it is the most fundamental instruction or one of the most fundamental that can occur when that happens the jury got claim construction instructions but this is the infringement instruction this is it this is what should we do how do we decide whether this infringement what did the court tell us the court told us we can decide we can decide in the first instance whether sequences required in order to determine whether there's infringement that's the fundamental error that's not a J. M
. O. L. issue that is an issue of fundamental prejudicial error in a jury instruction it was raised in our memorandum submitted in opposition to this instruction we specifically advised the court to give this instruction what results in the jury being given the opportunity to constru the claims that's what happened and what should have happened was the jury should not have been given this instruction and the jury certainly could have decided there was no infringement under the doctrine of equivalence based on the evidence before the jury that's the test for prejudice this was objected to this was inconsistent with substantial justice you can't say to the jury sure there are these required steps I told you what the claims mean and then say to the jury by the way now I'm going to tell you what you do on infringement and what you do on infringement is you can decide whether sequence is a requirement of the claims there can't be a more fundamental error this was an issue for the court the court can't hand it to the jury and that's what we're saying and that's not an issue of evidence it's not a J. M
. issue that is an issue of fundamental prejudicial error in a jury instruction it was raised in our memorandum submitted in opposition to this instruction we specifically advised the court to give this instruction what results in the jury being given the opportunity to constru the claims that's what happened and what should have happened was the jury should not have been given this instruction and the jury certainly could have decided there was no infringement under the doctrine of equivalence based on the evidence before the jury that's the test for prejudice this was objected to this was inconsistent with substantial justice you can't say to the jury sure there are these required steps I told you what the claims mean and then say to the jury by the way now I'm going to tell you what you do on infringement and what you do on infringement is you can decide whether sequence is a requirement of the claims there can't be a more fundamental error this was an issue for the court the court can't hand it to the jury and that's what we're saying and that's not an issue of evidence it's not a J. M. O. L
. O. L. issue it's an issue of was this instruction itself resulting in prejudice was it erroneous and it was and the fact your honor that there were other instructions they deal with construing the claims this deals with how do we find infringement and certainly the jury you want to say to your we bottle you said the same thing a couple times so I might want to let me just point out use it later yes one other issue with respect to prejudice this is and this is in our brief so I'll be 30 seconds this is exactly what was argued to the jury what was argued to the jury was you don't have to find infringement because the sequence is irrelevant and that's exactly what we suggest the judge may hand would happen repeatedly we suggest it to the judge we argue the judge they will get up and they will tell the jury sequence is not a requirement and that's exactly what happened in the context of arguing about why there was infringement under the doctrine of equivalents the plaintiffs counsel said to the jury and we quoted it in the brief the opening brief sequence doesn't matter it doesn't matter that's not for an attorney representing a party to argue to a jury how you should construe the claims your purposes of deciding whether this infringement that's a court requirement let me just briefly touch on several other issues that we raised but that is a fundamental one another characteristic of these claims was the dependency characteristic which we discussed which essentially is that the patent claims require a dependency between the cards selected to be held in one hand and the cards duplicated into or also held in the other hands and what that means is and the argument to the jury was and the evidence submitted could have allowed the jury to determine that that requirement that limitation was absent in the accused method of play and in fact judge may hand determined that that characteristic was absent when he granted some rejections on literal infringement and we strenuously argued to the court that that limitation needed to be in the instructions of the claim construction instructions on all three claims and what happened was we detailed within the record we did this in our papers addressing weren't you found not to literally infringe under all three claims that's correct that's correct but we wanted the same construction as a court used to find there was no infringement on all three claims given the jury there can't be different claim instructions for a doctrine of equivalence as opposed to literal infringement and the court did not give us those instruction asked it to of the claims and what happened was we put this in our reply to explain it even more after lots of argument the court cut off the argument and said to council that's it we're done this instruction is out we're finished so the notion of any waiver or any failure to raise it this was raised pre-trial this was raised during argument i think it's the record here one other issue briefly and that deals with damages only point i want to make on that is the whole question of the buck for world to determine damages on a patent case which is a hypothetical recreation of what would have happened if there was no infringing method and therefore no multiplayer poker well yes it's true there can be latitude in explaining what would have happened in the buck for world there has to be some grounded reality that's not completely speculative as to this but for world and what happened in this case was the plan is expert hypothesized and analysis based completely solely exclusively on what would have happened statewide there's nothing in the record nothing that supports any inference any basis to that what would have happened in a statewide basis had any relationship to the real world the real world was as a testimony was that what occurred occurred on the basis of every location it was not a statewide analysis there's got to be some limit to the buck for world some outer limits of the straits and that's something about the real world this was an interesting theory and this was not a theory that needed to be objected to before trial this is not a dober case where you say no scientific evidence it's not an evidentiary issue it's here's the evidence of trial it doesn't support it anyway there's no evidence to support this theory thank you morning council may please the court let's cut to the chase there were no objections to instruction 28 there were no objections to instruction 29 there were no objections to instruction 36 there was no appeal of the mark of the ruling well let me cut to the let's assume there were assume hypothetically there were objections or somehow the objections were preserved and let's assume it was clear that the summon substance of the jury instruction did say it's up to you jury to decide whether the sequence is a limitation or is required would you then can see that there was a problem with the jury instruction no because because you've got to look at the jury instructions as a whole no but let's take my hypothetical let's assume it was absolutely I mean they said at 10 times and it was clear that the jury instruction did consist of allowing the jury to decide whether or not a sequence were required would you would you accept that and that there was a problem you're asking me to assume that yes if you assume that hypothetically then there would be possibly plain error in the instruction okay and then the necessary consequences would follow okay what if the jury got it right for me what if the jury well my position is the jury did you get it right because the jury was clearly instructed if you look if you just page through the instructions the first 20 or so up to page 28 are basically and including 28 are basically background instructions this is what a patent is about this is what little infringement means this is what document quotes means if there's an insubstantial difference etc etc. I mean instruction number 24 says it is a duty to it is my duty to interpret the patent times so before we even get to instruction 28 the judge is telling a jury it's my duty when you get the 29 in this case the court is determined as a matter of law that the plain language requires a sequence my duty the court's duty you go to 36 now that I have instructed you generally about the law that you must follow on deciding whether defendants infringed one or more plain of spandes it is time for me to instruct you specifically about the meaning of the claim elements at issue in this case and what follows basically those eight elements is exactly what the indication of some additional things if you if you look at number seven the also hold limitation this is on a 81 the also hold limitation of claim one C of 066 pet requires holding all of those rows those cards selected to be held in one row therefore there is an inherent dependency they got that instruction they wanted the complaint here is they didn't get it with respect to the other two claim threes the claim three the eight seven three and the claim three of those six six they got the inherent dependency and still lost they still lost if you look at the next page a 82 it says it is apparent from the plain language of the claims that a sequence exists there was no objection to this instruction now because they lost the case is saying hold on hold on is something wrong with the instructions if you look carefully at all these instructions what's happening here is the court is trying to explain a little bit about patent law so the jury has it in context what they're about to decide 28 does that very thing it's it's talking about things you you've got to balance what might be an inarthful way of expressing things in 28 with what later you've also got instruction number 31 which talks about doctrine of equivalence this case was presented this jury as a doctrine of equivalence case but as we all know if you have six steps not every step is going to be an equivalent step there could be some steps that literally infringe in other words that limitation is found exact correspondence in the multiplayer game but why doesn't is instruction 28 saying to jury you can through the claim well as I as I said before it's fairly inarthful and I think what the what the court was trying to do in this particular thing is kind of set the tone for the doctrine of equivalence case
. issue it's an issue of was this instruction itself resulting in prejudice was it erroneous and it was and the fact your honor that there were other instructions they deal with construing the claims this deals with how do we find infringement and certainly the jury you want to say to your we bottle you said the same thing a couple times so I might want to let me just point out use it later yes one other issue with respect to prejudice this is and this is in our brief so I'll be 30 seconds this is exactly what was argued to the jury what was argued to the jury was you don't have to find infringement because the sequence is irrelevant and that's exactly what we suggest the judge may hand would happen repeatedly we suggest it to the judge we argue the judge they will get up and they will tell the jury sequence is not a requirement and that's exactly what happened in the context of arguing about why there was infringement under the doctrine of equivalents the plaintiffs counsel said to the jury and we quoted it in the brief the opening brief sequence doesn't matter it doesn't matter that's not for an attorney representing a party to argue to a jury how you should construe the claims your purposes of deciding whether this infringement that's a court requirement let me just briefly touch on several other issues that we raised but that is a fundamental one another characteristic of these claims was the dependency characteristic which we discussed which essentially is that the patent claims require a dependency between the cards selected to be held in one hand and the cards duplicated into or also held in the other hands and what that means is and the argument to the jury was and the evidence submitted could have allowed the jury to determine that that requirement that limitation was absent in the accused method of play and in fact judge may hand determined that that characteristic was absent when he granted some rejections on literal infringement and we strenuously argued to the court that that limitation needed to be in the instructions of the claim construction instructions on all three claims and what happened was we detailed within the record we did this in our papers addressing weren't you found not to literally infringe under all three claims that's correct that's correct but we wanted the same construction as a court used to find there was no infringement on all three claims given the jury there can't be different claim instructions for a doctrine of equivalence as opposed to literal infringement and the court did not give us those instruction asked it to of the claims and what happened was we put this in our reply to explain it even more after lots of argument the court cut off the argument and said to council that's it we're done this instruction is out we're finished so the notion of any waiver or any failure to raise it this was raised pre-trial this was raised during argument i think it's the record here one other issue briefly and that deals with damages only point i want to make on that is the whole question of the buck for world to determine damages on a patent case which is a hypothetical recreation of what would have happened if there was no infringing method and therefore no multiplayer poker well yes it's true there can be latitude in explaining what would have happened in the buck for world there has to be some grounded reality that's not completely speculative as to this but for world and what happened in this case was the plan is expert hypothesized and analysis based completely solely exclusively on what would have happened statewide there's nothing in the record nothing that supports any inference any basis to that what would have happened in a statewide basis had any relationship to the real world the real world was as a testimony was that what occurred occurred on the basis of every location it was not a statewide analysis there's got to be some limit to the buck for world some outer limits of the straits and that's something about the real world this was an interesting theory and this was not a theory that needed to be objected to before trial this is not a dober case where you say no scientific evidence it's not an evidentiary issue it's here's the evidence of trial it doesn't support it anyway there's no evidence to support this theory thank you morning council may please the court let's cut to the chase there were no objections to instruction 28 there were no objections to instruction 29 there were no objections to instruction 36 there was no appeal of the mark of the ruling well let me cut to the let's assume there were assume hypothetically there were objections or somehow the objections were preserved and let's assume it was clear that the summon substance of the jury instruction did say it's up to you jury to decide whether the sequence is a limitation or is required would you then can see that there was a problem with the jury instruction no because because you've got to look at the jury instructions as a whole no but let's take my hypothetical let's assume it was absolutely I mean they said at 10 times and it was clear that the jury instruction did consist of allowing the jury to decide whether or not a sequence were required would you would you accept that and that there was a problem you're asking me to assume that yes if you assume that hypothetically then there would be possibly plain error in the instruction okay and then the necessary consequences would follow okay what if the jury got it right for me what if the jury well my position is the jury did you get it right because the jury was clearly instructed if you look if you just page through the instructions the first 20 or so up to page 28 are basically and including 28 are basically background instructions this is what a patent is about this is what little infringement means this is what document quotes means if there's an insubstantial difference etc etc. I mean instruction number 24 says it is a duty to it is my duty to interpret the patent times so before we even get to instruction 28 the judge is telling a jury it's my duty when you get the 29 in this case the court is determined as a matter of law that the plain language requires a sequence my duty the court's duty you go to 36 now that I have instructed you generally about the law that you must follow on deciding whether defendants infringed one or more plain of spandes it is time for me to instruct you specifically about the meaning of the claim elements at issue in this case and what follows basically those eight elements is exactly what the indication of some additional things if you if you look at number seven the also hold limitation this is on a 81 the also hold limitation of claim one C of 066 pet requires holding all of those rows those cards selected to be held in one row therefore there is an inherent dependency they got that instruction they wanted the complaint here is they didn't get it with respect to the other two claim threes the claim three the eight seven three and the claim three of those six six they got the inherent dependency and still lost they still lost if you look at the next page a 82 it says it is apparent from the plain language of the claims that a sequence exists there was no objection to this instruction now because they lost the case is saying hold on hold on is something wrong with the instructions if you look carefully at all these instructions what's happening here is the court is trying to explain a little bit about patent law so the jury has it in context what they're about to decide 28 does that very thing it's it's talking about things you you've got to balance what might be an inarthful way of expressing things in 28 with what later you've also got instruction number 31 which talks about doctrine of equivalence this case was presented this jury as a doctrine of equivalence case but as we all know if you have six steps not every step is going to be an equivalent step there could be some steps that literally infringe in other words that limitation is found exact correspondence in the multiplayer game but why doesn't is instruction 28 saying to jury you can through the claim well as I as I said before it's fairly inarthful and I think what the what the court was trying to do in this particular thing is kind of set the tone for the doctrine of equivalence case. is it so inarthful that it invalidates the jury determination? I don't believe so because later on in 29 the very next instruction 29 what's it say it talks about I find the sequence to be the dealing selecting and duplicating or hold to be sequentially in 30 in 36 the claim construction it talks about the fact that it is apparent from the plain language of the claims that a sequence exists. You're saying the 29 clarifies 28
. is it so inarthful that it invalidates the jury determination? I don't believe so because later on in 29 the very next instruction 29 what's it say it talks about I find the sequence to be the dealing selecting and duplicating or hold to be sequentially in 30 in 36 the claim construction it talks about the fact that it is apparent from the plain language of the claims that a sequence exists. You're saying the 29 clarifies 28. Yes sir. But what if I mean what if the jury thought that under equivalence even though he says the claim construction it requires a sequence doesn't the language and the instruction in 28 is it wouldn't likely leave the jury to conclude that even though that's the literal claim construction we can go beyond that
. Yes sir. But what if I mean what if the jury thought that under equivalence even though he says the claim construction it requires a sequence doesn't the language and the instruction in 28 is it wouldn't likely leave the jury to conclude that even though that's the literal claim construction we can go beyond that. No because because I think the clear indication in 36 instruction 36 which is the piece to resist dance in terms of defining the claims says the dealing limitation means so and so the selecting cards mean so and so I believe there's inherent dependency with respect to claim one C of 066 I believe the judge saying it is apparent from the plain language of the claims that a sequence exists that dominates in my view whatever whatever was 728. I think Mr
. No because because I think the clear indication in 36 instruction 36 which is the piece to resist dance in terms of defining the claims says the dealing limitation means so and so the selecting cards mean so and so I believe there's inherent dependency with respect to claim one C of 066 I believe the judge saying it is apparent from the plain language of the claims that a sequence exists that dominates in my view whatever whatever was 728. I think Mr. Gabriel said and so if you heard the same thing can you confirm that you indeed it was argued to the jury from your side that a sequence is not a required limitation. That argument was made in connection with the equivalency argument yes but we don't know whether the jury found there was a sequence we don't know whether the jury found that there was insubstantial difference in terms of the sequence steps all we know is that the jury found that there was infringement on the doctrine of equivalence and there was no there was an insubstantial difference between duplicating the holes and duplicating the cards because that's the way it was presented to the jury
. Gabriel said and so if you heard the same thing can you confirm that you indeed it was argued to the jury from your side that a sequence is not a required limitation. That argument was made in connection with the equivalency argument yes but we don't know whether the jury found there was a sequence we don't know whether the jury found that there was insubstantial difference in terms of the sequence steps all we know is that the jury found that there was infringement on the doctrine of equivalence and there was no there was an insubstantial difference between duplicating the holes and duplicating the cards because that's the way it was presented to the jury. Now tell me where does auto holes commit to this? Auto hole is this in the multiplayer poker game you can play three five ten as many hands as you want but let's assume for the sake of my scenario it's three hands. The word auto hole does not acclaim accept auto hole is a mechanism that's in the accused of us
. Now tell me where does auto holes commit to this? Auto hole is this in the multiplayer poker game you can play three five ten as many hands as you want but let's assume for the sake of my scenario it's three hands. The word auto hole does not acclaim accept auto hole is a mechanism that's in the accused of us. It's not in the claims those words are in accept if you look at the claim one seat of 066 the also hell language is kind of like the auto hole it's what it's talking about but keep in mind and I think it might be instructor for me to tell you a little bit about how multiplayer poker works basically what happens is when you hit the deal draw button to begin with you'll have say three hands all face up with suggested holes the computer makes a suggestive holes it's up to the player to decide whether the select the holes or not select the holes the evidence was that some 90% of the people play it that way they adopt the holes because that's the optimum way of playing the game so they hit the deal draw button the second time and all the holes are held in the same hand and then you determine there's a discarding of the cards you don't want and then what they call poker ranking to determine whether your winner lose that's kind of the way it works with the auto hole now is auto hole relevant to the question of the cross appeal and I wonder whether it's a proper cross appeal well there was a denial of our motion for summary judgment and that's what we're appealing for we're appealing front apartment we're appealing from the fact that we believe with the auto hole feature off that what happens and let me give you a scenario you have the three hands again and there's suggested holes you can or not know holes at all you can simply take your finger touch screen and just say it's aces you can put your two fingers on the two aces and push it all the way down see those are the ones that want to hold if you do that our position is that in effect there's infringement so it was it was wrong for the judge to deny our motion for summary judgment on that basis that's what we're appealing for so that's how the the device works and that's how we think the claims return for term with the auto hole can you appeal on the denial of the motion for summary judgment yes your honor why for me why are we appealing yeah I mean why denial of motion for summary judgment leaves the issue unresolved well let me tell you the practical reason why the practical reason why is honest and you've already won I know so isn't this just another argument for you to defend your position I'm sorry I didn't know what you've done enough yeah well I wasn't sure either there are a lot of issues here and that's that depend on auto hole versus non auto let me let me see if I can explain the way these devices work there's a key at the back of the machine and you could turn the auto hole on or you could turn it off and what we're concerned about so many we we get affirmed on appeal and they can't use the auto hole feature somebody could easily turn it out or off and we believe even when it's off there's infringement and it's going to be impossible for us to monitor whether they violated the injunction is that a hypothetical case is that a case of controversy is that happening well how's that happen we believe it has yes because of the injunctions in place we believe that they've turned off the switch and the problem is if they turn a pet come on with these these units or machines are put in taverns in convenience stores and gas stations places where we couldn't possibly begin to monitor it and that's what we're really concerned about but you say because the instructions in place so you're talking about something that potentially is happening after this case is over after you've lost before the jury yes let me ask you on that when you describe the system you said okay when you've got the auto hold off you you know you can go to to to and hold them but is that that's not being automatically duplicated that's something that manually someone has to decide I want to hold these two cards in this hand these two in the next hand whatever right keep in mind your honor that the claims do not say automatic nothing says automatic and let me let me read something to you okay another one auto hold isn't in the claims right in our cross appeal papers as an example at a 7 0 1 o we submitted a statement of fact that said the following question and he can make that hold selection by pressing the six and swiping down the touchscreen right answer he can do it that way or if there's a suggested hold thing that's another way to play the auto hold another was another way to play the auto hold is for the player simply to take his finger and press all the way down on the three hands to pick up whatever he wants to hold so he's selecting the holds he's selecting them they're not done okay they're not done automatically although you say there's no requirement for automatic right that suggests if the player doesn't do that he's still in for if they're still in Frenchman there even let's assume if he plays if he plays different hands in other words if he decides to hold one here different one here different one that's not an infringement so how do you decide what the damages are whether there's infringement you have to well with the auto hold off with the auto hold off what we what we know is this that most people whether this has been the record what most people whether they play with the auto hold on or the auto hold off want to hold the same cards and all the hands because that's the optimum way of playing and if they made the decision in their own mind I want the ace in the king because those the two high cards they they just swipe down the ace in the king they don't very few people ever decide they're going to try to beat the system so to speak and get an ace here and a three of hearts here and four space down here that's just not the way the games play now with respect to sequencing and inherent dependency we believe that the judge put enough information in there about sequencing and inherent dependency that was consistent with his mark on ruling and also gave the jury enough information to make the decision and keep in mind as they said before even though they say they want inherent dependency in the other claim three's the 873 claim three and the 066 claim three they lost with the inherent dependency and the sequence instruction in instruction 36 on the 066 so where is the prejudicial error it would be reasonable to assume that even if inherent dependency were crafted on the 873 claim three and the 066 claim three that they would have lost because they lost they lost on the 066 pet which had that but as I said before they did not appeal the claim instruction now they're trying to take issues with you didn't put enough in the claim instruction we think they've waived the right to object we cited references in our brief to that effect well I see my time is this up and I've uh okay thank you so I'll see my answer every other question yes if you're on the issue of the test for prejudice the test for the party have one with the proper jury instructions we address this extensively in the brief it's not an issue of what would have happened it's could we have one and we explain factually and legally why the jury properly instructed and not let us straight into its own claim construction why there was evidence before the jury such that the impalents could have prevailed on the document equivalents now again this whole issue of there are instructions that deal with the claims and tell the jury that sequence is required that's true but there are only two instructions two on how do you decide whether there's infringement and one of them tells them the first one that deals with how do we decide tell some directly you can decide whether sequences are requirement so whether there are other instructions that explain what the claims mean and no matter how many times the judge said I determine what the claims mean what the jury was told was you determine when you decide the issue of infringement whether you think that limitation is there that's wrong it's a fundamental plain error and we can't interview the jury to determine what they did but it's very clear on all the cases we cited for the test for prejudice could we have one if the jury wasn't told you decide whether there's a sequence the answer is yes we could have won because it was evidence there such that the jury could have concluded there was no infringement was this argued it was now with respect to waiver there's no waiver there was an objection to this very instruction and at least three different places there was an objection in the pleading in title of defendants memorandum of points and authorities in support of defendants proposed jury instructions specifically at pages 9111 and 9112 and 9116 says specifically plain as proposed post trial instruction 27A which became 28 is evidence of plaintiffs effort to have the jury construe the claims which effort the court should reject and in the record starting of pages 4555 for the next 20 pages there's a colloquial with the court about you can't give this instruction you can't have the jury decide whether sequences are requirement it's inconsistent with Markman it's inconsistent with the court's obligation so this wasn't waived it was asserted hunting around for other instructions to cure that kind of fundamental defect doesn't work now this is not an in-artful instruction it's completely wrong if you read it it's lifted right out of a brief to the court from a Markman hearing it's not 28 is ambiguous but 36 seems to be pretty clear 36 followed 28 well that that's right you aren't but they're which one should the jury follow if if I'm a juror and I want to know what do I do about sequence does it I heard counsel for the plaintiff say sequence doesn't matter mr. Gabriel's misleading that was closing argument now I'm in the jury room and I look at these two instructions and I think well let's see well you know what I can decide the claims don't have to be performed in an or in that order what is the short answer to the question your time is expired okay the answer is my short answer is this instruction is completely inconsistent with another one all right thank you thank you very much the case is submitted thank you
All right. United States for the field. But the federal circuit is now open and said that the United States from the Army for the first case this morning is 0 51287 action gaming the Alliance gaming Mr. Gabriel Gabriel. Good morning Your Honours. May the police accord. Your Honours were here today because of a fundamental error made by the District Court in connection with jury instructions regarding the claim construction of the claims that issued in the lawsuit that resulted in a jury verdict which we contend should be reversed because it was prejudicing error and those instructions. Very specific. We're not here to play games. That's right. We played games in the District Court but that doesn't show up too much in the record. Correct. What occurred was even though the parties had vigorously litigated the issue of whether there was a limitation in the methods steps that issue which required that the steps be performed in a certain sequence and that was standing the fact that the court in its claim construction recognized that that sequence was a limitation and there was a required sequence and notwithstanding the fact that there was one instruction that addressed that sequence in a critical instruction which was given to the jury on how the jury could determine whether there was infringement under the doctrine of equivalence which was the only infringement issue in the case. The jury was told it could decide whether that sequence limitation existed. But it seems to me Mr. Gabriel when maybe you can clarify what I'm missing here that your arguments to the extent that they might have some merit would go to the fact that the the differences were substantial or there is a limitation and you can't find equivalence because it violates the limited it obviates the limitation and aren't those issues really issues that should have been challenged on Jamal. It seems to me that you're hurtle the road you have to cross to get by the jury instructions which are granted or confusing perhaps in some places or whatever but that's a pretty high hurdle. So I guess at bottom what in to ask for Jamal and make the arguments that seems underlie what you're saying about the jury instruction that content. Well, it doesn't underlie it's a different argument because this goes to the fundamental question of the respective roles of the court and the jury when it the jury is told and this is in the appendix on a zero zero seven two if you find the steps must be performed in a sequence that was an instruction to the jury which was objected to the jury was told it could decide whether there was that limitation that's a that is a fundamental error in jury instructions but there were other places in the I mean the jury instructions go on and on and on and there are other places in the jury instruction are they're not where it was quite clear judge makes claim construction here's the claim construction and really said the right thing and completely proper am I right? Well, that's true you're on it but this is not a claim construction jury instruction. This is telling the jury how it should decide whether there is infringement under the doctrine of equivalents so even if there are instructions and there were that talk about sequence being a limitation the jury was told okay you have these instructions the court told you what the claims are all about the court can't through the claims now what should the jury do to determine whether there's infringement under the doctrine of equivalents and what the jury was told was you can decide whether that limitation exists that's what the instruction says if you find the steps must be performed in a sequence not only that this is 0 0 7 2 in the appendix is that reversible error though sure it is your honor because it hands to the jury the issue of construing the claims couldn't the jury have decided that either way this infringement could it have decided that my team did had maybe it did it could have your honor but the issue on whether this instruction is prejudicial is could was there evidence before the jury from which it could have the side there was no infringement under the doctrine of equivalents and aren't we submit there was because the jury is being told if you look at the language of instruction 28 it's a it's a legal argument about whether sequence is a limitation in fact it's a legal argument lifted right out of the alterus case because it says to the jury if it is impossible to perform the steps described in the claims without performing them in the sequences written the multiplayer poker must be played in that order where it's possible to perform the steps before during or simultaneously with another step that's a legal argument that's an argument in the alterus case 318 f3 1363 when this court was reviewing whether there was a proper claim construction it looked at what was argued to the court on whether there was a required sequence and here's what this court said the patent he argued the steps can occur before after or simultaneously with or between any of the other steps that's a legal argument that was for the court to determine the court can't suggest to the jury not suggest instruct the jury you can decide you decide whether there's a required sequence that's given to the jury something that's exclusively within the province of the court it is the most fundamental instruction or one of the most fundamental that can occur when that happens the jury got claim construction instructions but this is the infringement instruction this is it this is what should we do how do we decide whether this infringement what did the court tell us the court told us we can decide we can decide in the first instance whether sequences required in order to determine whether there's infringement that's the fundamental error that's not a J. M. O. L. issue that is an issue of fundamental prejudicial error in a jury instruction it was raised in our memorandum submitted in opposition to this instruction we specifically advised the court to give this instruction what results in the jury being given the opportunity to constru the claims that's what happened and what should have happened was the jury should not have been given this instruction and the jury certainly could have decided there was no infringement under the doctrine of equivalence based on the evidence before the jury that's the test for prejudice this was objected to this was inconsistent with substantial justice you can't say to the jury sure there are these required steps I told you what the claims mean and then say to the jury by the way now I'm going to tell you what you do on infringement and what you do on infringement is you can decide whether sequence is a requirement of the claims there can't be a more fundamental error this was an issue for the court the court can't hand it to the jury and that's what we're saying and that's not an issue of evidence it's not a J. M. O. L. issue it's an issue of was this instruction itself resulting in prejudice was it erroneous and it was and the fact your honor that there were other instructions they deal with construing the claims this deals with how do we find infringement and certainly the jury you want to say to your we bottle you said the same thing a couple times so I might want to let me just point out use it later yes one other issue with respect to prejudice this is and this is in our brief so I'll be 30 seconds this is exactly what was argued to the jury what was argued to the jury was you don't have to find infringement because the sequence is irrelevant and that's exactly what we suggest the judge may hand would happen repeatedly we suggest it to the judge we argue the judge they will get up and they will tell the jury sequence is not a requirement and that's exactly what happened in the context of arguing about why there was infringement under the doctrine of equivalents the plaintiffs counsel said to the jury and we quoted it in the brief the opening brief sequence doesn't matter it doesn't matter that's not for an attorney representing a party to argue to a jury how you should construe the claims your purposes of deciding whether this infringement that's a court requirement let me just briefly touch on several other issues that we raised but that is a fundamental one another characteristic of these claims was the dependency characteristic which we discussed which essentially is that the patent claims require a dependency between the cards selected to be held in one hand and the cards duplicated into or also held in the other hands and what that means is and the argument to the jury was and the evidence submitted could have allowed the jury to determine that that requirement that limitation was absent in the accused method of play and in fact judge may hand determined that that characteristic was absent when he granted some rejections on literal infringement and we strenuously argued to the court that that limitation needed to be in the instructions of the claim construction instructions on all three claims and what happened was we detailed within the record we did this in our papers addressing weren't you found not to literally infringe under all three claims that's correct that's correct but we wanted the same construction as a court used to find there was no infringement on all three claims given the jury there can't be different claim instructions for a doctrine of equivalence as opposed to literal infringement and the court did not give us those instruction asked it to of the claims and what happened was we put this in our reply to explain it even more after lots of argument the court cut off the argument and said to council that's it we're done this instruction is out we're finished so the notion of any waiver or any failure to raise it this was raised pre-trial this was raised during argument i think it's the record here one other issue briefly and that deals with damages only point i want to make on that is the whole question of the buck for world to determine damages on a patent case which is a hypothetical recreation of what would have happened if there was no infringing method and therefore no multiplayer poker well yes it's true there can be latitude in explaining what would have happened in the buck for world there has to be some grounded reality that's not completely speculative as to this but for world and what happened in this case was the plan is expert hypothesized and analysis based completely solely exclusively on what would have happened statewide there's nothing in the record nothing that supports any inference any basis to that what would have happened in a statewide basis had any relationship to the real world the real world was as a testimony was that what occurred occurred on the basis of every location it was not a statewide analysis there's got to be some limit to the buck for world some outer limits of the straits and that's something about the real world this was an interesting theory and this was not a theory that needed to be objected to before trial this is not a dober case where you say no scientific evidence it's not an evidentiary issue it's here's the evidence of trial it doesn't support it anyway there's no evidence to support this theory thank you morning council may please the court let's cut to the chase there were no objections to instruction 28 there were no objections to instruction 29 there were no objections to instruction 36 there was no appeal of the mark of the ruling well let me cut to the let's assume there were assume hypothetically there were objections or somehow the objections were preserved and let's assume it was clear that the summon substance of the jury instruction did say it's up to you jury to decide whether the sequence is a limitation or is required would you then can see that there was a problem with the jury instruction no because because you've got to look at the jury instructions as a whole no but let's take my hypothetical let's assume it was absolutely I mean they said at 10 times and it was clear that the jury instruction did consist of allowing the jury to decide whether or not a sequence were required would you would you accept that and that there was a problem you're asking me to assume that yes if you assume that hypothetically then there would be possibly plain error in the instruction okay and then the necessary consequences would follow okay what if the jury got it right for me what if the jury well my position is the jury did you get it right because the jury was clearly instructed if you look if you just page through the instructions the first 20 or so up to page 28 are basically and including 28 are basically background instructions this is what a patent is about this is what little infringement means this is what document quotes means if there's an insubstantial difference etc etc. I mean instruction number 24 says it is a duty to it is my duty to interpret the patent times so before we even get to instruction 28 the judge is telling a jury it's my duty when you get the 29 in this case the court is determined as a matter of law that the plain language requires a sequence my duty the court's duty you go to 36 now that I have instructed you generally about the law that you must follow on deciding whether defendants infringed one or more plain of spandes it is time for me to instruct you specifically about the meaning of the claim elements at issue in this case and what follows basically those eight elements is exactly what the indication of some additional things if you if you look at number seven the also hold limitation this is on a 81 the also hold limitation of claim one C of 066 pet requires holding all of those rows those cards selected to be held in one row therefore there is an inherent dependency they got that instruction they wanted the complaint here is they didn't get it with respect to the other two claim threes the claim three the eight seven three and the claim three of those six six they got the inherent dependency and still lost they still lost if you look at the next page a 82 it says it is apparent from the plain language of the claims that a sequence exists there was no objection to this instruction now because they lost the case is saying hold on hold on is something wrong with the instructions if you look carefully at all these instructions what's happening here is the court is trying to explain a little bit about patent law so the jury has it in context what they're about to decide 28 does that very thing it's it's talking about things you you've got to balance what might be an inarthful way of expressing things in 28 with what later you've also got instruction number 31 which talks about doctrine of equivalence this case was presented this jury as a doctrine of equivalence case but as we all know if you have six steps not every step is going to be an equivalent step there could be some steps that literally infringe in other words that limitation is found exact correspondence in the multiplayer game but why doesn't is instruction 28 saying to jury you can through the claim well as I as I said before it's fairly inarthful and I think what the what the court was trying to do in this particular thing is kind of set the tone for the doctrine of equivalence case. is it so inarthful that it invalidates the jury determination? I don't believe so because later on in 29 the very next instruction 29 what's it say it talks about I find the sequence to be the dealing selecting and duplicating or hold to be sequentially in 30 in 36 the claim construction it talks about the fact that it is apparent from the plain language of the claims that a sequence exists. You're saying the 29 clarifies 28. Yes sir. But what if I mean what if the jury thought that under equivalence even though he says the claim construction it requires a sequence doesn't the language and the instruction in 28 is it wouldn't likely leave the jury to conclude that even though that's the literal claim construction we can go beyond that. No because because I think the clear indication in 36 instruction 36 which is the piece to resist dance in terms of defining the claims says the dealing limitation means so and so the selecting cards mean so and so I believe there's inherent dependency with respect to claim one C of 066 I believe the judge saying it is apparent from the plain language of the claims that a sequence exists that dominates in my view whatever whatever was 728. I think Mr. Gabriel said and so if you heard the same thing can you confirm that you indeed it was argued to the jury from your side that a sequence is not a required limitation. That argument was made in connection with the equivalency argument yes but we don't know whether the jury found there was a sequence we don't know whether the jury found that there was insubstantial difference in terms of the sequence steps all we know is that the jury found that there was infringement on the doctrine of equivalence and there was no there was an insubstantial difference between duplicating the holes and duplicating the cards because that's the way it was presented to the jury. Now tell me where does auto holes commit to this? Auto hole is this in the multiplayer poker game you can play three five ten as many hands as you want but let's assume for the sake of my scenario it's three hands. The word auto hole does not acclaim accept auto hole is a mechanism that's in the accused of us. It's not in the claims those words are in accept if you look at the claim one seat of 066 the also hell language is kind of like the auto hole it's what it's talking about but keep in mind and I think it might be instructor for me to tell you a little bit about how multiplayer poker works basically what happens is when you hit the deal draw button to begin with you'll have say three hands all face up with suggested holes the computer makes a suggestive holes it's up to the player to decide whether the select the holes or not select the holes the evidence was that some 90% of the people play it that way they adopt the holes because that's the optimum way of playing the game so they hit the deal draw button the second time and all the holes are held in the same hand and then you determine there's a discarding of the cards you don't want and then what they call poker ranking to determine whether your winner lose that's kind of the way it works with the auto hole now is auto hole relevant to the question of the cross appeal and I wonder whether it's a proper cross appeal well there was a denial of our motion for summary judgment and that's what we're appealing for we're appealing front apartment we're appealing from the fact that we believe with the auto hole feature off that what happens and let me give you a scenario you have the three hands again and there's suggested holes you can or not know holes at all you can simply take your finger touch screen and just say it's aces you can put your two fingers on the two aces and push it all the way down see those are the ones that want to hold if you do that our position is that in effect there's infringement so it was it was wrong for the judge to deny our motion for summary judgment on that basis that's what we're appealing for so that's how the the device works and that's how we think the claims return for term with the auto hole can you appeal on the denial of the motion for summary judgment yes your honor why for me why are we appealing yeah I mean why denial of motion for summary judgment leaves the issue unresolved well let me tell you the practical reason why the practical reason why is honest and you've already won I know so isn't this just another argument for you to defend your position I'm sorry I didn't know what you've done enough yeah well I wasn't sure either there are a lot of issues here and that's that depend on auto hole versus non auto let me let me see if I can explain the way these devices work there's a key at the back of the machine and you could turn the auto hole on or you could turn it off and what we're concerned about so many we we get affirmed on appeal and they can't use the auto hole feature somebody could easily turn it out or off and we believe even when it's off there's infringement and it's going to be impossible for us to monitor whether they violated the injunction is that a hypothetical case is that a case of controversy is that happening well how's that happen we believe it has yes because of the injunctions in place we believe that they've turned off the switch and the problem is if they turn a pet come on with these these units or machines are put in taverns in convenience stores and gas stations places where we couldn't possibly begin to monitor it and that's what we're really concerned about but you say because the instructions in place so you're talking about something that potentially is happening after this case is over after you've lost before the jury yes let me ask you on that when you describe the system you said okay when you've got the auto hold off you you know you can go to to to and hold them but is that that's not being automatically duplicated that's something that manually someone has to decide I want to hold these two cards in this hand these two in the next hand whatever right keep in mind your honor that the claims do not say automatic nothing says automatic and let me let me read something to you okay another one auto hold isn't in the claims right in our cross appeal papers as an example at a 7 0 1 o we submitted a statement of fact that said the following question and he can make that hold selection by pressing the six and swiping down the touchscreen right answer he can do it that way or if there's a suggested hold thing that's another way to play the auto hold another was another way to play the auto hold is for the player simply to take his finger and press all the way down on the three hands to pick up whatever he wants to hold so he's selecting the holds he's selecting them they're not done okay they're not done automatically although you say there's no requirement for automatic right that suggests if the player doesn't do that he's still in for if they're still in Frenchman there even let's assume if he plays if he plays different hands in other words if he decides to hold one here different one here different one that's not an infringement so how do you decide what the damages are whether there's infringement you have to well with the auto hold off with the auto hold off what we what we know is this that most people whether this has been the record what most people whether they play with the auto hold on or the auto hold off want to hold the same cards and all the hands because that's the optimum way of playing and if they made the decision in their own mind I want the ace in the king because those the two high cards they they just swipe down the ace in the king they don't very few people ever decide they're going to try to beat the system so to speak and get an ace here and a three of hearts here and four space down here that's just not the way the games play now with respect to sequencing and inherent dependency we believe that the judge put enough information in there about sequencing and inherent dependency that was consistent with his mark on ruling and also gave the jury enough information to make the decision and keep in mind as they said before even though they say they want inherent dependency in the other claim three's the 873 claim three and the 066 claim three they lost with the inherent dependency and the sequence instruction in instruction 36 on the 066 so where is the prejudicial error it would be reasonable to assume that even if inherent dependency were crafted on the 873 claim three and the 066 claim three that they would have lost because they lost they lost on the 066 pet which had that but as I said before they did not appeal the claim instruction now they're trying to take issues with you didn't put enough in the claim instruction we think they've waived the right to object we cited references in our brief to that effect well I see my time is this up and I've uh okay thank you so I'll see my answer every other question yes if you're on the issue of the test for prejudice the test for the party have one with the proper jury instructions we address this extensively in the brief it's not an issue of what would have happened it's could we have one and we explain factually and legally why the jury properly instructed and not let us straight into its own claim construction why there was evidence before the jury such that the impalents could have prevailed on the document equivalents now again this whole issue of there are instructions that deal with the claims and tell the jury that sequence is required that's true but there are only two instructions two on how do you decide whether there's infringement and one of them tells them the first one that deals with how do we decide tell some directly you can decide whether sequences are requirement so whether there are other instructions that explain what the claims mean and no matter how many times the judge said I determine what the claims mean what the jury was told was you determine when you decide the issue of infringement whether you think that limitation is there that's wrong it's a fundamental plain error and we can't interview the jury to determine what they did but it's very clear on all the cases we cited for the test for prejudice could we have one if the jury wasn't told you decide whether there's a sequence the answer is yes we could have won because it was evidence there such that the jury could have concluded there was no infringement was this argued it was now with respect to waiver there's no waiver there was an objection to this very instruction and at least three different places there was an objection in the pleading in title of defendants memorandum of points and authorities in support of defendants proposed jury instructions specifically at pages 9111 and 9112 and 9116 says specifically plain as proposed post trial instruction 27A which became 28 is evidence of plaintiffs effort to have the jury construe the claims which effort the court should reject and in the record starting of pages 4555 for the next 20 pages there's a colloquial with the court about you can't give this instruction you can't have the jury decide whether sequences are requirement it's inconsistent with Markman it's inconsistent with the court's obligation so this wasn't waived it was asserted hunting around for other instructions to cure that kind of fundamental defect doesn't work now this is not an in-artful instruction it's completely wrong if you read it it's lifted right out of a brief to the court from a Markman hearing it's not 28 is ambiguous but 36 seems to be pretty clear 36 followed 28 well that that's right you aren't but they're which one should the jury follow if if I'm a juror and I want to know what do I do about sequence does it I heard counsel for the plaintiff say sequence doesn't matter mr. Gabriel's misleading that was closing argument now I'm in the jury room and I look at these two instructions and I think well let's see well you know what I can decide the claims don't have to be performed in an or in that order what is the short answer to the question your time is expired okay the answer is my short answer is this instruction is completely inconsistent with another one all right thank you thank you very much the case is submitted thank yo