Legal Case Summary

We have four cases before us that are for argument and we have two that have been submitted on brief. The first case we have before us is info hole versus music a little C. And understand that Council James K. Walk is that correct? Walk is going to argue for eight minutes you reserve five minutes and then Council Daniel Wood has two minutes. Is that correct? And you have your entire 15 minutes. Okay. Let's get going. I'm going to start with the residual royalty damages issue and then circle back with the claim construction. And then I just stated Mr. Wood is going to have then disment issues. In this case, the honors district court summary judgment found that there is no evidence of original royalty even though there were open issues of infringement and validity. District court relied on musics arguments in the case which are based on judge positors reasoning under lying Apple V motor roller case which was reversed by this court. The district court relied on judge positors reasoning in Apple case where he found that without an expert on damages that one cannot make a damages case which we know is not the law. Because musics summary judgment motion was legally insufficient on its face. They did not meet their burden approved as the movement on some judgment to show that the record is uncontroverted that the zero is the reasonable royalty. In fact, music never even made that argument at some judgment. Do you make your argument about the sufficiency of the evidence to go to trial on royalty even if Mr

. White's testimony is struck? Yes, Your Honor. Because again, the laws that you don't need an expert and as this court is found in Apple V motor roller, Section 35 USC 284 mandates a royalty when there is infringement and validity. Has there been an infringement of validity finding in this case? There is still open, Your Honor. They knew for summary judgment on the issues of infringement. So how does Apple V motor roller fit? I believe in Apple V motor roller case, the facts were similar and the court said that at that stage you have to presume that there was infringement and validity. There was a infringement finding in that case, Your Honor. I don't think that was the case if that was and I'm mistaken. I don't think there was an infringement finding at that point, Your Honor. If we put aside Mr. White's testimony, then you have the assignment which I'm not sure helped you much because it wasn't an arm's length deal, but then you do have the license. And then what else do you have? Okay. A couple of other pieces of evidence, Your Honor. And the first thing is that their own expert, he's an expert, a pine of a non-zero royalty. That's Mr. Paris. Yes, Your Honor

. And, doesn't your your reliance on Paris number one, doesn't it run a foul of the hearsay rule? I don't believe so, Your Honor, because Rule 56, which was discussed at length in the briefings, first of all, just says that you have to submit site to evidence in the record, not evidence that would be admissible trial. Also, we cited to the case, so that said once somebody makes an admissible... No, Rule 56 says that the evidence available for Rule 56 has to be cognizable evidence, has to be admissible evidence, right? I believe what it says is that it has to be admissible trial. It doesn't have to be submitted and it... Well, that's a new interpretation. So, anything can come in in Rule 56 despite the federal rules of evidence? Well, as always, it will be admissible trial. For example, an affidavit is not admissible trial, but you can bring that in. Of course, it can be admissible trial. It can be an admission against interest. It can mean lots of things as long as it's competent. Right, but it would also be hearsay, Your Honor. There would be hearsay objections to affidavits

. The inscriptions available. And their exceptions to the hearsay rule and an admission is one of them, leaving that aside. Supposing, you've decided not to call Mr. Paires' witness of trial, would you be able to use the deposition as evidence? Yes, Your Honor. We would be able to, because we took his deposition on our own. He wasn't available to testify a trial, then that is an exception to hearsay rules. So we could do that. So there's a thing that there is, in fact, no hearsay objection to his deposition testimony. And if I remember right, the other side does not argue that there is a hearsay objection to the deposition testimony. They do, however, argue that the deposition testimony of Mr. Paires or Dr. Paires. It's Dr. Paires. Dr. Paires was not something that you submitted in opposition to their summary judgment motion on the point

. You didn't submit it until your motion for reconsideration. And so I take it that the district court, at least, was entitled not to rely at all on that, even though at a trial, that would be a sanction now, a miscible testimony. I somewhat disagree with that, Your Honor, because Rule 56 and Case, so that we cited it to say that if somebody makes an objection based on admissibility to documents that you submit with your summary judgment motion, that you would have a chance, at least, to respond to those in this ability objections. And that's why we should have been given a chance, and that's what we did in our motion for reconsideration, saying, okay, you object to this expert report of Mr. Paires, that we signed it to. I'm sorry, I'm not talking about the expert report now. It's just talking about the deposition testimony of Dr. Paires, which you did not, I could take it, submit in your opposition to summary judgment. We did not. And that was our evidence to get around the objections to his expert report, which we cited to. So in other words, in our opposition to their summary judgment motion, we said, this can't be a non-zero role to because, look, their own expert has a non-zero role, his record, which is opinion, which is in the record, states a non-zero reasonable royalty. And so they objected to his opinion on here, saying, okay, well, if you're going to object to his opinion, we've got all of this deposition testimony. And that's why we've brought it in to get his opinion into the record. Is there any case law for the notion that the expert report that he submitted on their behalf is an admission under the hearsay rule? Well, certainly there's documents that he relied on. There's music, business records that he'd relied on that certainly. The report itself

. I wouldn't say that, I don't think that there's any rule that we can argue that his report is an admission since he's on a party, you're on there. And it's not made by a person whom the party authorized to make a statement on the subject. Yes, I mean, we could certainly try to bring that under. I don't know the case on that, Your Honor. But if one puts aside his report for hearsay reasons and puts aside the deposition testimony on the procedural ground that it was not submitted in time, does this come down to the license? I don't think so, Your Honor, because there's other independent reasons that the summer judgment motion should be overturned. Well, I think their motion is legally insufficient on a space. They just argue that without an expert, you can't bring a damages case, which is legally ins... they didn't meet their burden as the movement. The second thing is they, the district court excluded our lay witnesses based on expert rules of evidence. And Mr. Hazenfield here is the inventor, named the district court said that he could not testify to a reasonable royalty as a late witness using expert witness rules. Mr. Kalki, you're in clear. You're in third time

. Mr. Wood, I tell you, since you're up here, you're a member of the park. Yes. All high on? Yes. Who is Mr. Mason? Mr. Mason is an employee of InfoHold. He's been six with us. Is he an attorney? No, he's not. Where you are aware of his conduct? His conduct? Yes. In recording? Oh, yes. Where you are aware of the Ohio Forest position on that? I was aware of the fact that Ohio is a two-party state in the state in which the court was made as a two-party state. And it was a federal issue. And the federal issue, the federal law is that I'm sorry, one-party state. That one, if one party has knowledge, and the party in question was.

.. That's the criminality of the conduct. You are you aware of the forest position on that? I dealt with that when I was a lawyer. And there are states where the bar takes different positions than a legislator. Well, did you research that issue? Because I did. I was not aware of the...in advance that the phone call was going to be recorded. The phone call was recorded because the president of the company was not going to be able to be there and wanted to know about the information. But you were aware of the time. I believe I was. I know Mr. Mason was in the room with me. I'm not saying I didn't, but the content is in the record and survived. So, our point of inducement is that the district court said that no evidence existed, that there was knowledge and the part of me is that their activity, that they were selling infringing products, informed off of the exhibit

. That it's a through r to the district court on the question of the elements of inducement. So, to say that no evidence existed in the face of nine exhibits, you've meant that the district court was weighing the evidence and not providing the non-moving party with the light most favorable to it. Did music on the inducement point? I gather that the basic evidence you have on inducement is you say, let her email and I remember which saying, here's the patent. Will you please examine the patent, examine your product. Something like the following occurred initially. They said, sure. Then you responded saying, where is it? That was during the phone call. Music only had the patent which we sent them. But then there was the phone call in which we spoke for a long time and not only to love the patent, but to love about the patent. It was during that conversation and follow-up correspondence that they were urged to get a letter and advice of counsel. And then they didn't. Did they submit any evidence about that they did in fact do some investigation? No. So, the record on this is, the question is, could a jury infer the knowledge requirement of global tech, assuming that is a knowledge requirement of global tech, could they infer that from having been given the patent, asked to conduct an investigation and then be in complete silence about the subject? That would be for being woefully blocked. There was an admission in the conversation that the general counsel for music and music LLC said that they absolutely had a product where you could remotely control the content and a remote location from a computer. So, I would argue that that would be a directed mission that they had knowledge in fact. But the failure to see a high probability of infringement, a high probability of a certainty of a fact, and then reclusive disregard it

. Also, you get the work of thought. You're almost two minutes over. I'll let you conclude. Well, just simply that, that we think with the global tech standard with wolf blindness, there's no dispute that they had a copy of the patent. There's no dispute that didn't get in the judges' analysis, but the specific intent element of inducement under block of MGM versus rocks advertising. They have a website. They have a video on YouTube showing how to use the product and its intended manner. Because three elements we have induced. Thank you. Mr. Bertrand, will we'll add two minutes to your time if you need it? Thank you, Your Honor. May I please the quote? This is not a momentous case about damage or inducement. This is a case about failure to... It might be momentous for them

. I'm sorry? It might be momentous for them. You said the case is not momentous? No, I say this, this, I'm sorry. It's not momentous. Right. Maybe it is for the clients. Well, I'm just saying it's a matter of law. Does our analysis change if this is momentous or not? Well, my point is that there's a lot of discussion in the briefs about whether this is rapidly motorized. But the real question here is, what was really in the record on some rejudgment? It's right so. And so we talked a lot about that when your friend was up here. Why is the license alone not enough to get over the hurdle of saying there is a possibly positive that is non-zero, what? Putting everything else, sorry. Well, their couple forms of that. First of all, what royalty rate does that have intended to show? In the proceedings, does a royalty doesn't have to be a rate. It could be a dollar. Well, there's no dollar in that, you know, and there is, there are two different royalty rates. It's one and half percent. But you argued that any type of royalty at this case would be nominal. You argued for nominal royalty rate, weren't you? We argued that there was really that at the end of the day, there was not enough evidence to go to the jury on the question of what royalty damages work. Remember, we have a situation here, Iran, where Mr. White, let me ask you again, you did argue, or did you argue that any, if there's to be an award of any type of royalty, that it would be a nominal royalty rate? We did not make that argument for say, you're on there. We made the argument that there was that you look at the evidence and you argue that the evidence indicated a zero rate? No, we did not, you're on it. We just argued that there were no damages provable in the end of the day. That you, that there was not enough evidence in the record for the jury to come back with a verdict of damages in X number of dollars. Can you read Apple and Dow as requiring the court to look to the entire record, not just the evidence prooffered by the parties, as far as reasonable and royalty? Well, in, let's talk about Dow first. In the case of Dow, that was the bench trial. There was already a trial, all the evidence was in the court, because look at the evidence, when we read, there was no jury trial, well, it should, for example. So the court in that case, yes, they would look at all the evidence. In the Apple V motor law, the issue didn't actually get teed up as such since the case was sent back to the district court. So it's, as a matter of procedure, it's difficult to see from Apple V motor law exactly how it would line up with the case we have here. In Apple V motor law, that was, was that summary judgment? There was an on motions in the limony with essentially on the eve of trial. And that there was, and I write that there was no infringement or validity really, because they didn't get the liability because judge post-nourquist. That's correct. There was no possible remedy

. You argued for nominal royalty rate, weren't you? We argued that there was really that at the end of the day, there was not enough evidence to go to the jury on the question of what royalty damages work. Remember, we have a situation here, Iran, where Mr. White, let me ask you again, you did argue, or did you argue that any, if there's to be an award of any type of royalty, that it would be a nominal royalty rate? We did not make that argument for say, you're on there. We made the argument that there was that you look at the evidence and you argue that the evidence indicated a zero rate? No, we did not, you're on it. We just argued that there were no damages provable in the end of the day. That you, that there was not enough evidence in the record for the jury to come back with a verdict of damages in X number of dollars. Can you read Apple and Dow as requiring the court to look to the entire record, not just the evidence prooffered by the parties, as far as reasonable and royalty? Well, in, let's talk about Dow first. In the case of Dow, that was the bench trial. There was already a trial, all the evidence was in the court, because look at the evidence, when we read, there was no jury trial, well, it should, for example. So the court in that case, yes, they would look at all the evidence. In the Apple V motor law, the issue didn't actually get teed up as such since the case was sent back to the district court. So it's, as a matter of procedure, it's difficult to see from Apple V motor law exactly how it would line up with the case we have here. In Apple V motor law, that was, was that summary judgment? There was an on motions in the limony with essentially on the eve of trial. And that there was, and I write that there was no infringement or validity really, because they didn't get the liability because judge post-nourquist. That's correct. There was no possible remedy. So that's the point. Right. Right. Or just to correct something, we did argue from the basis of judge post-nourquist reasoning in one reason back. And that was that without a remedy, there was no point in deciding other issues on the merits and courtship and judgment against the party having to burden proof on remedy at that point. There's no point in that. Let me take you back to the evidence question. Okay. If I read FRCP 32A on using depositions and congenition with 702, why not when they're taken together? Why isn't there support for an infallible position that they can rely on Mr. Paris' testimony? The problem is, and I think one of the members of the panel raised it in the opposition to the motion for summary judgment. Info-hold relied upon two things. The documents attached to the White and Paris reports, and Mr. Paris's report itself, which was unsworn. The deposition of Mr. Paris, which was available at the time, and could have presented as part of the case, was not presented to the court. The problem with this is, the info-hold is taking the position that it's unfair that because music objected to Info-hold's evidence and they were ploy and they didn't have a chance to respond to somehow unfair, and they should be allowed another chance

. So that's the point. Right. Right. Or just to correct something, we did argue from the basis of judge post-nourquist reasoning in one reason back. And that was that without a remedy, there was no point in deciding other issues on the merits and courtship and judgment against the party having to burden proof on remedy at that point. There's no point in that. Let me take you back to the evidence question. Okay. If I read FRCP 32A on using depositions and congenition with 702, why not when they're taken together? Why isn't there support for an infallible position that they can rely on Mr. Paris' testimony? The problem is, and I think one of the members of the panel raised it in the opposition to the motion for summary judgment. Info-hold relied upon two things. The documents attached to the White and Paris reports, and Mr. Paris's report itself, which was unsworn. The deposition of Mr. Paris, which was available at the time, and could have presented as part of the case, was not presented to the court. The problem with this is, the info-hold is taking the position that it's unfair that because music objected to Info-hold's evidence and they were ploy and they didn't have a chance to respond to somehow unfair, and they should be allowed another chance. As a matter of practice on summary judgment, if you have evidence to put in, you put in a foundation along with it. In other words, you don't just throw up the expert, or say, this is my evidence, you present the deposition by which the expert says, yes, that's my testimony. An expert report by itself from the Sixth Circuit, whether you call the expert whether the expert is designated test fire, or not, is not considered summary judgment evidence. In this case, this is the Sixth Circuit legal question, and not a question of general law. So if you read those things together, the fact that you're on a yes, if they presented the deposition on in their opposition, we'd be in the different position, but they did not. So, after this question, the license plus some of the non-expert testimony of a company official, is that who it is, and maybe some of the documents would clearly be admissible as business records. Take that together, or maybe even a license alone. Why is that not enough for a jury to find a non-zero, well-elty rate? Well, or well, forget about rate, it doesn't have to be a rate. In this case, there are two aspects to your question. The first aspect is the assumption that the non-expert testimony of the company officials is part of the property. In this case, the only presentation of the official testimony was in the opposition to the summary judgment motion in general on reconciliation, where the lawyer argued that it was an opposition to the summary judgment motion, or was it on reconciliation? Let's ignore reconsideration. I thought that they presented, tell me if I'm wrong, Mr. Hays and Field, is that his name? Yes. Some testimony by him. And the judge said, doesn't count, and I'm not sure why it doesn't count. 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problem with Mr

. As a matter of practice on summary judgment, if you have evidence to put in, you put in a foundation along with it. In other words, you don't just throw up the expert, or say, this is my evidence, you present the deposition by which the expert says, yes, that's my testimony. An expert report by itself from the Sixth Circuit, whether you call the expert whether the expert is designated test fire, or not, is not considered summary judgment evidence. In this case, this is the Sixth Circuit legal question, and not a question of general law. So if you read those things together, the fact that you're on a yes, if they presented the deposition on in their opposition, we'd be in the different position, but they did not. So, after this question, the license plus some of the non-expert testimony of a company official, is that who it is, and maybe some of the documents would clearly be admissible as business records. Take that together, or maybe even a license alone. Why is that not enough for a jury to find a non-zero, well-elty rate? Well, or well, forget about rate, it doesn't have to be a rate. In this case, there are two aspects to your question. The first aspect is the assumption that the non-expert testimony of the company officials is part of the property. In this case, the only presentation of the official testimony was in the opposition to the summary judgment motion in general on reconciliation, where the lawyer argued that it was an opposition to the summary judgment motion, or was it on reconciliation? Let's ignore reconsideration. I thought that they presented, tell me if I'm wrong, Mr. Hays and Field, is that his name? Yes. Some testimony by him. And the judge said, doesn't count, and I'm not sure why it doesn't count. 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court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court, and the court The problem with Mr. Paris' ethical report, for example, is under Six Circuit Law. The unsformed ethical report, by itself, according to the Seeker case, is not a debudenture of quality. It is because of its form, but it may not be an evidentiary form. Well, actually, no, I think that what they say is that the profit evidence need not be in miscible form, but its content must be miscible, but the court also says in the same context that you still have to present it in a firm with its evidentiary, such as a declaration. Mr. Clark is correct that under Six Circuit Law, at least, declarations by themselves are here to say, because they're out of court statements made for the purpose of showing the truth of the statements. But they are to use the words of rule 56C2. Obviously, capable of being made admissible because, by presenting a declaration, you are represented to the court that the declarant will testify as stated in the declaration. Well, there are exceptions to the hearsay rule that may apply. So I agree, Your Honor, for one thing. But they may not have them. Doesn't all this evidence at least raise a genuine issue with true effect? Well, the question is, we have the question of material fact as a raise. Well, if we'll cite seven different pieces of evidence that they believe raised that issue. Well, the problem is, if you go through the pieces of that, I think Mr. Wood was talking about an inducement. Are we talking about reasonable royalty or whether to greater inducement, Your Honor? Talk about royalty

. Paris' ethical report, for example, is under Six Circuit Law. The unsformed ethical report, by itself, according to the Seeker case, is not a debudenture of quality. It is because of its form, but it may not be an evidentiary form. Well, actually, no, I think that what they say is that the profit evidence need not be in miscible form, but its content must be miscible, but the court also says in the same context that you still have to present it in a firm with its evidentiary, such as a declaration. Mr. Clark is correct that under Six Circuit Law, at least, declarations by themselves are here to say, because they're out of court statements made for the purpose of showing the truth of the statements. But they are to use the words of rule 56C2. Obviously, capable of being made admissible because, by presenting a declaration, you are represented to the court that the declarant will testify as stated in the declaration. Well, there are exceptions to the hearsay rule that may apply. So I agree, Your Honor, for one thing. But they may not have them. Doesn't all this evidence at least raise a genuine issue with true effect? Well, the question is, we have the question of material fact as a raise. Well, if we'll cite seven different pieces of evidence that they believe raised that issue. Well, the problem is, if you go through the pieces of that, I think Mr. Wood was talking about an inducement. Are we talking about reasonable royalty or whether to greater inducement, Your Honor? Talk about royalty. OK. There are seven pieces of admissible evidence. At the end of the day, you have the Hayden Field assignment, which, Your Honor pointed out correctly, it's not an arm's length, and it's a dubious value. And you have the true son of license. But without Mr. White's testimony, which by assumption, and the summary judgment, has already been excluded, they have no evidence whatever of the sales or other activities of music that are necessary to calculate a worthy, no matter whether it's based on percentage of sales or something else. There's nothing there. So if the court decides, well, there is a way isn't the license enough. The license is no basis to work damages on your honor. Because there's no royalty basis. And if the court were to remand, let's say the court says, notice how we drive that issue of fact back to the district court. It's a futility. There's no evidence of reasonable royalty to come come in. Mr. Hayden Field and Mr. Mason cannot testify as to music sales because he the court will look at the license and say, OK, I see the license

. OK. There are seven pieces of admissible evidence. At the end of the day, you have the Hayden Field assignment, which, Your Honor pointed out correctly, it's not an arm's length, and it's a dubious value. And you have the true son of license. But without Mr. White's testimony, which by assumption, and the summary judgment, has already been excluded, they have no evidence whatever of the sales or other activities of music that are necessary to calculate a worthy, no matter whether it's based on percentage of sales or something else. There's nothing there. So if the court decides, well, there is a way isn't the license enough. The license is no basis to work damages on your honor. Because there's no royalty basis. And if the court were to remand, let's say the court says, notice how we drive that issue of fact back to the district court. It's a futility. There's no evidence of reasonable royalty to come come in. Mr. Hayden Field and Mr. Mason cannot testify as to music sales because he the court will look at the license and say, OK, I see the license. I think the reasonable royalty in this case would be $1,000. That would be based entirely on speculation without any sound economic proof of conjectures. That would be drawing a number out of thin air. And this court has been very critical of doing that. In this case, we have a problem. And that is Mr. Hayden Field and Mr. Mason cannot provide any evidence as to music sales. So you're answering my question, Mr. Hayden, how we would review a judge deciding in that manner. But still, doesn't that raise a genuine issue of fact? Well, the problem, as I said before, the question is, what issue of fact is it raised? It does raise an issue of maybe a royalty rate. We don't think it does because one of the questions on raising an issue of fact is, is the evidence to raise an issue of fact the evidence must be enough that a reasonable jury could anywhere could reach a verdict based on that evidence. And if all you have is the trusonic license agreement, the question is, how is it going to answer a question as to damage it? Right. Can I ask a question? Sorry, so a saying that Mr. White's testimony has been struck. That isn't the same as declaring inadmissible all the bases on which he relied

. I think the reasonable royalty in this case would be $1,000. That would be based entirely on speculation without any sound economic proof of conjectures. That would be drawing a number out of thin air. And this court has been very critical of doing that. In this case, we have a problem. And that is Mr. Hayden Field and Mr. Mason cannot provide any evidence as to music sales. So you're answering my question, Mr. Hayden, how we would review a judge deciding in that manner. But still, doesn't that raise a genuine issue of fact? Well, the problem, as I said before, the question is, what issue of fact is it raised? It does raise an issue of maybe a royalty rate. We don't think it does because one of the questions on raising an issue of fact is, is the evidence to raise an issue of fact the evidence must be enough that a reasonable jury could anywhere could reach a verdict based on that evidence. And if all you have is the trusonic license agreement, the question is, how is it going to answer a question as to damage it? Right. Can I ask a question? Sorry, so a saying that Mr. White's testimony has been struck. That isn't the same as declaring inadmissible all the bases on which he relied. And to the extent that they were music business documents, those come in as those come in. So why doesn't that supply essentially a base against which they multiply a inferred rate from the trusonic license? Well, the difficulty there is in this particular case, the, in this particular case, the inferred is not satisfied with that royalty rate. Well, that's up to them. Well, I understand that. But in the case here, it's quite extraordinary thing saying, saying, as a matter of law, absolutely no remedy. So there's no point in even doing liability. Zero is a very low number. Zero is a very low number. But look at what happened here. Influenza is the burden of proof. They have the burden of proof of presenting enough evidence that are reasonable, juries without speculation, without conjecture, and based on sound economic proof, can reach a decision as to what the damage is all. Remember, as the court has often said, patent infringement is a tort. And to show liability for a tort, you have to show that the existence of the duty, not to enfranch the breach of the duty and infringement, and you have to prove the damages falling from the breach. The problem here is, Influenza cannot prove, regardless of infringement and validity, they cannot prove what the damages were. Look at what happened here. Influenza is no expert

. And to the extent that they were music business documents, those come in as those come in. So why doesn't that supply essentially a base against which they multiply a inferred rate from the trusonic license? Well, the difficulty there is in this particular case, the, in this particular case, the inferred is not satisfied with that royalty rate. Well, that's up to them. Well, I understand that. But in the case here, it's quite extraordinary thing saying, saying, as a matter of law, absolutely no remedy. So there's no point in even doing liability. Zero is a very low number. Zero is a very low number. But look at what happened here. Influenza is the burden of proof. They have the burden of proof of presenting enough evidence that are reasonable, juries without speculation, without conjecture, and based on sound economic proof, can reach a decision as to what the damage is all. Remember, as the court has often said, patent infringement is a tort. And to show liability for a tort, you have to show that the existence of the duty, not to enfranch the breach of the duty and infringement, and you have to prove the damages falling from the breach. The problem here is, Influenza cannot prove, regardless of infringement and validity, they cannot prove what the damages were. Look at what happened here. Influenza is no expert. Influenza, what's the answer to this question? Because I've been thinking, no, I think I've heard before what you have got to say. So as a procedural matter, is it right or wrong that if the case went back for a trial on damages, presumably liability before damages, that on the damages, they would not be limited to the evidence that sustained an opposition to summary judgment. That's correct. So they could have more. They could, but the question is, in this instance, without their expert, how are they going to get in, how are they going to get the reasonable, the full reasonable, well, the point is, they're going to have to read Mr. Paris's deposition. And in our point box, they get opposition to the motion for summary judgment. It may seem like a fine point, but it's not. The Paris deposition is not in the record that the district court considered when deciding the summary judgment. Why wouldn't at that point the Paris deposition be enough? Won't you argue, didn't, Dr. Paris argued that nominal damages at minimum were applicable here. Mr. Paris's position was, if he were called to the witness that, and rebuttal to Mr. White, that he would disagree with Mr. White, and he would propose a different, we're all going to write in a different way. He was one question, Mr

. Influenza, what's the answer to this question? Because I've been thinking, no, I think I've heard before what you have got to say. So as a procedural matter, is it right or wrong that if the case went back for a trial on damages, presumably liability before damages, that on the damages, they would not be limited to the evidence that sustained an opposition to summary judgment. That's correct. So they could have more. They could, but the question is, in this instance, without their expert, how are they going to get in, how are they going to get the reasonable, the full reasonable, well, the point is, they're going to have to read Mr. Paris's deposition. And in our point box, they get opposition to the motion for summary judgment. It may seem like a fine point, but it's not. The Paris deposition is not in the record that the district court considered when deciding the summary judgment. Why wouldn't at that point the Paris deposition be enough? Won't you argue, didn't, Dr. Paris argued that nominal damages at minimum were applicable here. Mr. Paris's position was, if he were called to the witness that, and rebuttal to Mr. White, that he would disagree with Mr. White, and he would propose a different, we're all going to write in a different way. He was one question, Mr. Breitner. Was any of this evidence excluded as an evidentiary sanction? I couldn't find it, but... The Hazenfield, the Mason evidence was. Okay, okay, so it is. Okay, I'm sorry. Thank you very much. Thank you. And so you can't make a case. That's just wrong on its face. Okay, you're out of time. Thank you, sir.

We have four cases before us that are for argument and we have two that have been submitted on brief. The first case we have before us is info hole versus music a little C. And understand that Council James K. Walk is that correct? Walk is going to argue for eight minutes you reserve five minutes and then Council Daniel Wood has two minutes. Is that correct? And you have your entire 15 minutes. Okay. Let's get going. I'm going to start with the residual royalty damages issue and then circle back with the claim construction. And then I just stated Mr. Wood is going to have then disment issues. In this case, the honors district court summary judgment found that there is no evidence of original royalty even though there were open issues of infringement and validity. District court relied on musics arguments in the case which are based on judge positors reasoning under lying Apple V motor roller case which was reversed by this court. The district court relied on judge positors reasoning in Apple case where he found that without an expert on damages that one cannot make a damages case which we know is not the law. Because musics summary judgment motion was legally insufficient on its face. They did not meet their burden approved as the movement on some judgment to show that the record is uncontroverted that the zero is the reasonable royalty. In fact, music never even made that argument at some judgment. Do you make your argument about the sufficiency of the evidence to go to trial on royalty even if Mr. White's testimony is struck? Yes, Your Honor. Because again, the laws that you don't need an expert and as this court is found in Apple V motor roller, Section 35 USC 284 mandates a royalty when there is infringement and validity. Has there been an infringement of validity finding in this case? There is still open, Your Honor. They knew for summary judgment on the issues of infringement. So how does Apple V motor roller fit? I believe in Apple V motor roller case, the facts were similar and the court said that at that stage you have to presume that there was infringement and validity. There was a infringement finding in that case, Your Honor. I don't think that was the case if that was and I'm mistaken. I don't think there was an infringement finding at that point, Your Honor. If we put aside Mr. White's testimony, then you have the assignment which I'm not sure helped you much because it wasn't an arm's length deal, but then you do have the license. And then what else do you have? Okay. A couple of other pieces of evidence, Your Honor. And the first thing is that their own expert, he's an expert, a pine of a non-zero royalty. That's Mr. Paris. Yes, Your Honor. And, doesn't your your reliance on Paris number one, doesn't it run a foul of the hearsay rule? I don't believe so, Your Honor, because Rule 56, which was discussed at length in the briefings, first of all, just says that you have to submit site to evidence in the record, not evidence that would be admissible trial. Also, we cited to the case, so that said once somebody makes an admissible... No, Rule 56 says that the evidence available for Rule 56 has to be cognizable evidence, has to be admissible evidence, right? I believe what it says is that it has to be admissible trial. It doesn't have to be submitted and it... Well, that's a new interpretation. So, anything can come in in Rule 56 despite the federal rules of evidence? Well, as always, it will be admissible trial. For example, an affidavit is not admissible trial, but you can bring that in. Of course, it can be admissible trial. It can be an admission against interest. It can mean lots of things as long as it's competent. Right, but it would also be hearsay, Your Honor. There would be hearsay objections to affidavits. The inscriptions available. And their exceptions to the hearsay rule and an admission is one of them, leaving that aside. Supposing, you've decided not to call Mr. Paires' witness of trial, would you be able to use the deposition as evidence? Yes, Your Honor. We would be able to, because we took his deposition on our own. He wasn't available to testify a trial, then that is an exception to hearsay rules. So we could do that. So there's a thing that there is, in fact, no hearsay objection to his deposition testimony. And if I remember right, the other side does not argue that there is a hearsay objection to the deposition testimony. They do, however, argue that the deposition testimony of Mr. Paires or Dr. Paires. It's Dr. Paires. Dr. Paires was not something that you submitted in opposition to their summary judgment motion on the point. You didn't submit it until your motion for reconsideration. And so I take it that the district court, at least, was entitled not to rely at all on that, even though at a trial, that would be a sanction now, a miscible testimony. I somewhat disagree with that, Your Honor, because Rule 56 and Case, so that we cited it to say that if somebody makes an objection based on admissibility to documents that you submit with your summary judgment motion, that you would have a chance, at least, to respond to those in this ability objections. And that's why we should have been given a chance, and that's what we did in our motion for reconsideration, saying, okay, you object to this expert report of Mr. Paires, that we signed it to. I'm sorry, I'm not talking about the expert report now. It's just talking about the deposition testimony of Dr. Paires, which you did not, I could take it, submit in your opposition to summary judgment. We did not. And that was our evidence to get around the objections to his expert report, which we cited to. So in other words, in our opposition to their summary judgment motion, we said, this can't be a non-zero role to because, look, their own expert has a non-zero role, his record, which is opinion, which is in the record, states a non-zero reasonable royalty. And so they objected to his opinion on here, saying, okay, well, if you're going to object to his opinion, we've got all of this deposition testimony. And that's why we've brought it in to get his opinion into the record. Is there any case law for the notion that the expert report that he submitted on their behalf is an admission under the hearsay rule? Well, certainly there's documents that he relied on. There's music, business records that he'd relied on that certainly. The report itself. I wouldn't say that, I don't think that there's any rule that we can argue that his report is an admission since he's on a party, you're on there. And it's not made by a person whom the party authorized to make a statement on the subject. Yes, I mean, we could certainly try to bring that under. I don't know the case on that, Your Honor. But if one puts aside his report for hearsay reasons and puts aside the deposition testimony on the procedural ground that it was not submitted in time, does this come down to the license? I don't think so, Your Honor, because there's other independent reasons that the summer judgment motion should be overturned. Well, I think their motion is legally insufficient on a space. They just argue that without an expert, you can't bring a damages case, which is legally ins... they didn't meet their burden as the movement. The second thing is they, the district court excluded our lay witnesses based on expert rules of evidence. And Mr. Hazenfield here is the inventor, named the district court said that he could not testify to a reasonable royalty as a late witness using expert witness rules. Mr. Kalki, you're in clear. You're in third time. Mr. Wood, I tell you, since you're up here, you're a member of the park. Yes. All high on? Yes. Who is Mr. Mason? Mr. Mason is an employee of InfoHold. He's been six with us. Is he an attorney? No, he's not. Where you are aware of his conduct? His conduct? Yes. In recording? Oh, yes. Where you are aware of the Ohio Forest position on that? I was aware of the fact that Ohio is a two-party state in the state in which the court was made as a two-party state. And it was a federal issue. And the federal issue, the federal law is that I'm sorry, one-party state. That one, if one party has knowledge, and the party in question was... That's the criminality of the conduct. You are you aware of the forest position on that? I dealt with that when I was a lawyer. And there are states where the bar takes different positions than a legislator. Well, did you research that issue? Because I did. I was not aware of the...in advance that the phone call was going to be recorded. The phone call was recorded because the president of the company was not going to be able to be there and wanted to know about the information. But you were aware of the time. I believe I was. I know Mr. Mason was in the room with me. I'm not saying I didn't, but the content is in the record and survived. So, our point of inducement is that the district court said that no evidence existed, that there was knowledge and the part of me is that their activity, that they were selling infringing products, informed off of the exhibit. That it's a through r to the district court on the question of the elements of inducement. So, to say that no evidence existed in the face of nine exhibits, you've meant that the district court was weighing the evidence and not providing the non-moving party with the light most favorable to it. Did music on the inducement point? I gather that the basic evidence you have on inducement is you say, let her email and I remember which saying, here's the patent. Will you please examine the patent, examine your product. Something like the following occurred initially. They said, sure. Then you responded saying, where is it? That was during the phone call. Music only had the patent which we sent them. But then there was the phone call in which we spoke for a long time and not only to love the patent, but to love about the patent. It was during that conversation and follow-up correspondence that they were urged to get a letter and advice of counsel. And then they didn't. Did they submit any evidence about that they did in fact do some investigation? No. So, the record on this is, the question is, could a jury infer the knowledge requirement of global tech, assuming that is a knowledge requirement of global tech, could they infer that from having been given the patent, asked to conduct an investigation and then be in complete silence about the subject? That would be for being woefully blocked. There was an admission in the conversation that the general counsel for music and music LLC said that they absolutely had a product where you could remotely control the content and a remote location from a computer. So, I would argue that that would be a directed mission that they had knowledge in fact. But the failure to see a high probability of infringement, a high probability of a certainty of a fact, and then reclusive disregard it. Also, you get the work of thought. You're almost two minutes over. I'll let you conclude. Well, just simply that, that we think with the global tech standard with wolf blindness, there's no dispute that they had a copy of the patent. There's no dispute that didn't get in the judges' analysis, but the specific intent element of inducement under block of MGM versus rocks advertising. They have a website. They have a video on YouTube showing how to use the product and its intended manner. Because three elements we have induced. Thank you. Mr. Bertrand, will we'll add two minutes to your time if you need it? Thank you, Your Honor. May I please the quote? This is not a momentous case about damage or inducement. This is a case about failure to... It might be momentous for them. I'm sorry? It might be momentous for them. You said the case is not momentous? No, I say this, this, I'm sorry. It's not momentous. Right. Maybe it is for the clients. Well, I'm just saying it's a matter of law. Does our analysis change if this is momentous or not? Well, my point is that there's a lot of discussion in the briefs about whether this is rapidly motorized. But the real question here is, what was really in the record on some rejudgment? It's right so. And so we talked a lot about that when your friend was up here. Why is the license alone not enough to get over the hurdle of saying there is a possibly positive that is non-zero, what? Putting everything else, sorry. Well, their couple forms of that. First of all, what royalty rate does that have intended to show? In the proceedings, does a royalty doesn't have to be a rate. It could be a dollar. Well, there's no dollar in that, you know, and there is, there are two different royalty rates. It's one and half percent. But you argued that any type of royalty at this case would be nominal. You argued for nominal royalty rate, weren't you? We argued that there was really that at the end of the day, there was not enough evidence to go to the jury on the question of what royalty damages work. Remember, we have a situation here, Iran, where Mr. White, let me ask you again, you did argue, or did you argue that any, if there's to be an award of any type of royalty, that it would be a nominal royalty rate? We did not make that argument for say, you're on there. We made the argument that there was that you look at the evidence and you argue that the evidence indicated a zero rate? No, we did not, you're on it. We just argued that there were no damages provable in the end of the day. That you, that there was not enough evidence in the record for the jury to come back with a verdict of damages in X number of dollars. Can you read Apple and Dow as requiring the court to look to the entire record, not just the evidence prooffered by the parties, as far as reasonable and royalty? Well, in, let's talk about Dow first. In the case of Dow, that was the bench trial. There was already a trial, all the evidence was in the court, because look at the evidence, when we read, there was no jury trial, well, it should, for example. So the court in that case, yes, they would look at all the evidence. In the Apple V motor law, the issue didn't actually get teed up as such since the case was sent back to the district court. So it's, as a matter of procedure, it's difficult to see from Apple V motor law exactly how it would line up with the case we have here. In Apple V motor law, that was, was that summary judgment? There was an on motions in the limony with essentially on the eve of trial. And that there was, and I write that there was no infringement or validity really, because they didn't get the liability because judge post-nourquist. That's correct. There was no possible remedy. So that's the point. Right. Right. Or just to correct something, we did argue from the basis of judge post-nourquist reasoning in one reason back. And that was that without a remedy, there was no point in deciding other issues on the merits and courtship and judgment against the party having to burden proof on remedy at that point. There's no point in that. Let me take you back to the evidence question. Okay. If I read FRCP 32A on using depositions and congenition with 702, why not when they're taken together? Why isn't there support for an infallible position that they can rely on Mr. Paris' testimony? The problem is, and I think one of the members of the panel raised it in the opposition to the motion for summary judgment. Info-hold relied upon two things. The documents attached to the White and Paris reports, and Mr. Paris's report itself, which was unsworn. The deposition of Mr. Paris, which was available at the time, and could have presented as part of the case, was not presented to the court. The problem with this is, the info-hold is taking the position that it's unfair that because music objected to Info-hold's evidence and they were ploy and they didn't have a chance to respond to somehow unfair, and they should be allowed another chance. As a matter of practice on summary judgment, if you have evidence to put in, you put in a foundation along with it. In other words, you don't just throw up the expert, or say, this is my evidence, you present the deposition by which the expert says, yes, that's my testimony. An expert report by itself from the Sixth Circuit, whether you call the expert whether the expert is designated test fire, or not, is not considered summary judgment evidence. In this case, this is the Sixth Circuit legal question, and not a question of general law. So if you read those things together, the fact that you're on a yes, if they presented the deposition on in their opposition, we'd be in the different position, but they did not. So, after this question, the license plus some of the non-expert testimony of a company official, is that who it is, and maybe some of the documents would clearly be admissible as business records. Take that together, or maybe even a license alone. Why is that not enough for a jury to find a non-zero, well-elty rate? Well, or well, forget about rate, it doesn't have to be a rate. In this case, there are two aspects to your question. The first aspect is the assumption that the non-expert testimony of the company officials is part of the property. In this case, the only presentation of the official testimony was in the opposition to the summary judgment motion in general on reconciliation, where the lawyer argued that it was an opposition to the summary judgment motion, or was it on reconciliation? Let's ignore reconsideration. I thought that they presented, tell me if I'm wrong, Mr. Hays and Field, is that his name? Yes. Some testimony by him. And the judge said, doesn't count, and I'm not sure why it doesn't count. 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problem with Mr. Paris' ethical report, for example, is under Six Circuit Law. The unsformed ethical report, by itself, according to the Seeker case, is not a debudenture of quality. It is because of its form, but it may not be an evidentiary form. Well, actually, no, I think that what they say is that the profit evidence need not be in miscible form, but its content must be miscible, but the court also says in the same context that you still have to present it in a firm with its evidentiary, such as a declaration. Mr. Clark is correct that under Six Circuit Law, at least, declarations by themselves are here to say, because they're out of court statements made for the purpose of showing the truth of the statements. But they are to use the words of rule 56C2. Obviously, capable of being made admissible because, by presenting a declaration, you are represented to the court that the declarant will testify as stated in the declaration. Well, there are exceptions to the hearsay rule that may apply. So I agree, Your Honor, for one thing. But they may not have them. Doesn't all this evidence at least raise a genuine issue with true effect? Well, the question is, we have the question of material fact as a raise. Well, if we'll cite seven different pieces of evidence that they believe raised that issue. Well, the problem is, if you go through the pieces of that, I think Mr. Wood was talking about an inducement. Are we talking about reasonable royalty or whether to greater inducement, Your Honor? Talk about royalty. OK. There are seven pieces of admissible evidence. At the end of the day, you have the Hayden Field assignment, which, Your Honor pointed out correctly, it's not an arm's length, and it's a dubious value. And you have the true son of license. But without Mr. White's testimony, which by assumption, and the summary judgment, has already been excluded, they have no evidence whatever of the sales or other activities of music that are necessary to calculate a worthy, no matter whether it's based on percentage of sales or something else. There's nothing there. So if the court decides, well, there is a way isn't the license enough. The license is no basis to work damages on your honor. Because there's no royalty basis. And if the court were to remand, let's say the court says, notice how we drive that issue of fact back to the district court. It's a futility. There's no evidence of reasonable royalty to come come in. Mr. Hayden Field and Mr. Mason cannot testify as to music sales because he the court will look at the license and say, OK, I see the license. I think the reasonable royalty in this case would be $1,000. That would be based entirely on speculation without any sound economic proof of conjectures. That would be drawing a number out of thin air. And this court has been very critical of doing that. In this case, we have a problem. And that is Mr. Hayden Field and Mr. Mason cannot provide any evidence as to music sales. So you're answering my question, Mr. Hayden, how we would review a judge deciding in that manner. But still, doesn't that raise a genuine issue of fact? Well, the problem, as I said before, the question is, what issue of fact is it raised? It does raise an issue of maybe a royalty rate. We don't think it does because one of the questions on raising an issue of fact is, is the evidence to raise an issue of fact the evidence must be enough that a reasonable jury could anywhere could reach a verdict based on that evidence. And if all you have is the trusonic license agreement, the question is, how is it going to answer a question as to damage it? Right. Can I ask a question? Sorry, so a saying that Mr. White's testimony has been struck. That isn't the same as declaring inadmissible all the bases on which he relied. And to the extent that they were music business documents, those come in as those come in. So why doesn't that supply essentially a base against which they multiply a inferred rate from the trusonic license? Well, the difficulty there is in this particular case, the, in this particular case, the inferred is not satisfied with that royalty rate. Well, that's up to them. Well, I understand that. But in the case here, it's quite extraordinary thing saying, saying, as a matter of law, absolutely no remedy. So there's no point in even doing liability. Zero is a very low number. Zero is a very low number. But look at what happened here. Influenza is the burden of proof. They have the burden of proof of presenting enough evidence that are reasonable, juries without speculation, without conjecture, and based on sound economic proof, can reach a decision as to what the damage is all. Remember, as the court has often said, patent infringement is a tort. And to show liability for a tort, you have to show that the existence of the duty, not to enfranch the breach of the duty and infringement, and you have to prove the damages falling from the breach. The problem here is, Influenza cannot prove, regardless of infringement and validity, they cannot prove what the damages were. Look at what happened here. Influenza is no expert. Influenza, what's the answer to this question? Because I've been thinking, no, I think I've heard before what you have got to say. So as a procedural matter, is it right or wrong that if the case went back for a trial on damages, presumably liability before damages, that on the damages, they would not be limited to the evidence that sustained an opposition to summary judgment. That's correct. So they could have more. They could, but the question is, in this instance, without their expert, how are they going to get in, how are they going to get the reasonable, the full reasonable, well, the point is, they're going to have to read Mr. Paris's deposition. And in our point box, they get opposition to the motion for summary judgment. It may seem like a fine point, but it's not. The Paris deposition is not in the record that the district court considered when deciding the summary judgment. Why wouldn't at that point the Paris deposition be enough? Won't you argue, didn't, Dr. Paris argued that nominal damages at minimum were applicable here. Mr. Paris's position was, if he were called to the witness that, and rebuttal to Mr. White, that he would disagree with Mr. White, and he would propose a different, we're all going to write in a different way. He was one question, Mr. Breitner. Was any of this evidence excluded as an evidentiary sanction? I couldn't find it, but... The Hazenfield, the Mason evidence was. Okay, okay, so it is. Okay, I'm sorry. Thank you very much. Thank you. And so you can't make a case. That's just wrong on its face. Okay, you're out of time. Thank you, sir