Legal Case Summary

Next case is going to be a manufacturing at Algris's Currently checked at Algris's zero five fourteen seventy five Mr. Zelton. Good afternoon. I please the court. The this case presents or the central issue in this case is whether a party can use burden of brewing obviousness by clearing convincing evidence without actually presenting its theory of obviousness to try. Now in this case instead of actually presenting evidence of obviousness. But the jury found obvious and the judge and Jamal well. We have to get from layers here indicating that there were facts that could lead to a conclusion of obviousness. There were facts with respect to the issue of anticipation because there was discussion there was some discussion about certain prior references. Well the court held that the a number of these the basic facts flux, grounds, admission and up to other. Correct. Why is that not properly before? Because a party that has the burden of proving the patent ball has an obligation to treat obviousness as a separate and distinct challenge to validity from anticipation and it has specific elements and there are grant factors that need to be analyzed. And when presenting this to a jury I don't think it's too much to ask that a party present its case to the jury. In struck give guidance to the jury as to how it's to arrive at the obviousness decision. Which is not which is more than simply describing certain of the where the judge was. There was a jury instruction in obviousness. But I think in near see glor this case

. Well the most extensive testimony wasn't there that the claim limitation was the exception of the predetermined limitation were satisfied in the prior or. There was more evidence with respect to the references that we're discussing now. There was plenty of evidence that supported jury determination that all the claim limitations were satisfied in the prior or with the exception of the one limitation and that it's the predetermined limitation. I don't believe that's the case. No. There were elements that were missing from that discussion. Well let's talk about the independent claim. Okay so re-frame my question. So with respect to independent claim one and twenty one those are the independent claims right. There was plenty of testimony to enable a jury to conclude that those limitations appeared in the prior or with the exception of the predetermined limitation. I believe that the relevance that were missing. What elements were missing. There was no discussion of a mold layer defining cavity section in the discussion. The discussions were much more general in describing the which was a key element of the invention. The fact that you could have thicker intersections in the mold cavity which forms part of the definition of what a flow channel is. So are you, did you argue this in your brief? I didn't see that you argued that there was any limitation missing from the prior or other than the predetermined limitation

. No we raised that in our opening brief. You can show me where. The discussion I believe starts on page forty six of our opening brief. And then we walk through, we initially on page forty seven you will see we take the claims starting with the first independent claim and identify the various limitations. In the first independent claim there are twenty six limitations. And beginning on page forty nine would begin to apply the fact that if you even look at the substantive discussion which was general in nature. Certainly there was more of it than with respect to the prior reference that was addition of the first appeal. You will see at the full paragraph on page forty nine at the bottom it says limitations number three through seven nine ten twelve thirteen fifteen through seventeen twenty one twenty two twenty five. I think the other are from the dependent claims are still missing. Twenty six limitations not exactly a pioneering invention. I'm sorry. I don't think that's right. Well, yeah, and we obviously didn't prevail in the infringement part of the case. But the same limitations that we had to meet in our infringement case must be met precisely on the validity side for the case for the claim to be held in bail. And that burden approved is on Kuido. Let's assume further on to the only claim limitation missing from the prior pre-determined limitation

. Okay, let's just type of something. I know you disagree with that. But why couldn't the jury in a recheck inclusion of obviousness without the benefit of expert testimony about that particular limitation? We're not talking about something really complicated here, right? Well, first of all, it is complicated, but second of all, I don't think. And I think the score to even mention that this technology was complicated in the first decision. Well, the technology is complicated, but the predetermined limitation is not complicated. It's just a question of whether they intend to strengthen the plastic parac by lamination, right? That's basically what we're talking about. Right. I think there's a more fundamental problem in that the obviousness case was never presented to the jury. And I think that's the lear see glor case is even, I think, a better analogy. Yeah, but that's my question for now. So why couldn't the jury, if that's the missing element, why couldn't the jury make a determination that someone skilled in the art was no enough to have the predetermined limitation of the prior art, which would render the thing obvious? Number one, nobody told the jury that was the missing element from the other pieces of art about which there was more discussion. And number two, nobody pointed to anywhere in this extensive record where they should look to find that one missing limitation. If indeed that was what was missing in the jury. So you believe they didn't need expert testimony on that one? They don't need expert testimony. This linking evidence could be done in closing argument. It could be done in a claim chart

. It could be any sort of presentation of evidence that will give the jury guidance as to how it is to reach a decision of obviousness, applying the law of obviousness. I'm not specific because the charge have to be with respect to obviousness. They have to be shown that you add A, B and C and you come up with D or is it just showing that A, B and C are present? I think that if somebody is going to be combining references, they need to identify that to the jury, saying that to reach your decision if some elements A, B and C are found in this reference, D is found in that reference, and that you're to combine the two and the motivation to combine the two is found somewhere else in the record. I think those legal elements must be met. Now, can the jury then decide that it's not A, B and C but D, E and F which are part of the record and combining those? Why do you think they need to do that if it's in the record? If it's in the record, I think the jury is free to do it because I think the party presenting the evidence has met its burden of proof. That's I think the problem here is we haven't met the first threshold. You're saying it's not in the record? It's not in the record. There is nothing. No, it's not specified in the record. There is no theory laid out in the record at all. Does it have to be a theory and has to be laid out or is it just evidence which is in the record which is presented to the jury? Well, I think according to Lear Seagler, you need some linking. The signal is an infringement. Yeah, it's often a problem in the issue. Correct. And in the first COWD case, the court applied the Lear Seagler concept to the context of anticipation and obviousness. But I think that footnote that really goes to the issues to whether the evidence was in the record, not whether it was a linking point, but is it in the record? Is the evidence in the record that can be developed by the jury itself without having to be led to the

... I still think that the analogy to Lear Seagler is really profound here in the sense that there's a burden of proof and a party is going to trial to present an issue, to invalidate a patent, and going into trial, you would think that it's not too much to ask to figure out what evidence you will rely on, how you will combine it, where the motivation is. And that you will present that to a jury, and it's not the obligation to a jury to sift through this volume of record and figure out which parts fit and where, and where the motivation to combine is. In fact, it's a higher burden of clear convincing evidence on validity than it is the proponents of the evidence for infringement. And the score has said that it is not the obligation of the trial judge to sift through the evidence to figure out the possible validity analysis. I think it's a shifting of the burden to merely take and present evidence of anticipation, and merely argue in the alternative and closing that if you don't find anticipation, somewhere in here is obvious, and whatever is missing, as long as it's obvious to people of skill in the art, you can do it. But not give the jury any guidance, any tools to reset decision. I don't think that means the higher burden. Even if the evidence is in the record. Even if the evidence is in the record. I think you have to select the process by which the jury then determines how to combine the references or combine the prior art or whatever is available to it. I assume that if somebody is going to bring that to a trial, they have at least figured out what theory they have for obviousness. What pieces of art need to be combined or what pieces of art needs to be modified. And that I believe it is their duty and obligation to at least provide some sort of guidance to the jury as to how they can reach it. If a jury file is a different path, that's out of our control, but at least it meant their burden of teaching the jury and giving them some road man

. If we were to reject that argument about the need for linking arguments. Do you agree that there was sufficient evidence in record here for the jury to find that the predetermined limitation was obvious? No. Why not? Because the statements that are relied on by the court, the trial court, are two statements by Paul Brown that don't mention the evidence. They don't mention predetermined general limitation. And they don't mention combining it with any of the other art. They don't mention tail lights or methods of making tail lights. They don't mention audio cassette housings or making a bottom one. Audio cassette housings. And frankly, the predetermined direction limitation has other language in it. They do mention slow channels or directing slow. Correct. So isn't it reasonably combined with references that deal with the need to do that? There is no evidence at all that the reference, the other references, the automobile tail light lenses or the audio cassettes had a need for redirecting slow. Of desirability. Well, there's always the only desirability that's there comes from this concept, this very general concept that cross-lumination improves strength. But all plastic products could benefit from improved strength. And there was nothing in the record that said that flow channels were known to improve strength

. That's not what they were used for before the 2.68-PAT. But you did say there were two overlapping layers of low in different directions. There was no need for the path. Correct. The concept of cross-lumination was also known. Absolutely. And it was not the exact flow was also known. Correct. So what we have is a situation here in which the prior art did have cross-laminated tail light. And it was generally known that cross-lamination improves strength, right? Correct. But nobody knew that flow channels would improve strength, or that flow channels could be used for cross-lamination. And I think without applying hindsight, we have to show, we have to find some connection, some motivation. Were you using flow channels to cross-laminate in the prior art? The requirement of the redetermined general direction. The requirement of the redetermined general direction. Were you using flow channels to cross-laminate in the prior art? I mean, there was testimony that that was not a test

. There was no testimony that they met the pretty term of general direction. And that's been interpreted. But there was testimony that flow channels were used to cross-laminate tail light, right? Not in the prior art, but in the accused devices, yes. Well, I thought in the prior art also, and later the earlier camera and this time. Dr. Pansmore was never asserting that flow channels were used to redirect flow. He was saying that there were flow channels there. And the position that Kaviyo took was the knowledge, the predetermined general direction. And the intent of the flow channel were used to create it. Because we're in fact, we needed cross-laminated tail light, quite a thick tail light in the prior art, right? Yes. Yes. Dr. Nelson, I'm going to interrupt the flow of your argument. So let's just say there was a time. Oh, what's that? Mr. Gretzmann

. Good afternoon, Your Honor. May I please the court? Since we left off an obvious, obviously, let me start there. That's where we began, too. That's where we began, you're right. Turn keys attacked others on an allegation that there was no explanatory or linking evidence. And they rely heavily on what they call the law of the case. But what they don't recognize is that Kaviyo 1 felt exclusively with one reference, JPO-82. There's a Japanese reference that was introduced into evidence, but there was no substantive testimony at all as this court realized in Kui-1 and pointed out. Yeah, but you got sort of a thin case here, I guess. Maybe it's good enough, but it's pretty thin. And you think that you were making an obvious mistake, you'd have somebody come in and testify about the missing element of suggestion that combined all that. You didn't do that. Well, I respectfully disagree, Your Honor. You think that's the way you usually try to make it? Well, I don't know about how you usually try cases, but in this case, the evidence was that nearly every feature in the claim was present in the prior art that Dr. Kasmu testified about. The only possible exception being predetermined that limitation

. And that limitation was admitted on cross-examination by Mr. Brown, turn keys president. So I don't think it was a great question. Well, he made two admissions. The first one I think dealt with predetermined. He said it was an invention predetermined. No, he said it was known to use flow channels to redirect flow. And what that means is, and what the jury could have understood that to me, reasonably so, was that you redirect flow in a different direction that's known. I mean, after all, why would you redirect flow and have no idea where the flow is going? It doesn't make sense. And that was his first statement on cross-examination. The second one had to do with the motivation to combine. He said that it was known to use, to have flows crossed, to strengthen the part. That was the motivation for using a known flow direction in the prior lenses and cassettes. I think, you know, one issue is that in our view of both the jury and the trial court were in the best position here to gauge the impact of this testimony, both by Dr. Casmer and by Mr. Brown. The trial court clearly felt there were multiple bases upon which the jury could have rendered their project of invalidity. And, you know, the question is, the issue here is, you know, why didn't we explain these theories to the jury? I think you asked that, Judge Stuy. And as I explained, there were substantial evidence that all limitations were present in the prior art cassettes and the lenses except possibly for that predetermined limitation. But is it right to leave the jury to its own devices to determine what's in and what's out in prior art, even though it's in the evidence? Well, you know, picking shoes, whatever they want. Yeah, I think in this case, the admissions by Brown, Brown was not an obscure witness. Brown was Turkey's president. He was a president of Turkey. Right. So what? Well, I consider it to be a person of ordinary skill in the art according to the court. That's right. What happens in the situation where the jury is not directed at all of any evidence, even though the evidence is in the record this time? Well, I think in this case, it was the combination would be apparent to the jury. I think they, I mean, they found an infinity. We don't know the basis because it was a general verdict. We don't know exactly why they came to the conclusion they did. But clearly, they felt it was obvious. It might be a different situation if you have multiple references that you have to combine

. The trial court clearly felt there were multiple bases upon which the jury could have rendered their project of invalidity. And, you know, the question is, the issue here is, you know, why didn't we explain these theories to the jury? I think you asked that, Judge Stuy. And as I explained, there were substantial evidence that all limitations were present in the prior art cassettes and the lenses except possibly for that predetermined limitation. But is it right to leave the jury to its own devices to determine what's in and what's out in prior art, even though it's in the evidence? Well, you know, picking shoes, whatever they want. Yeah, I think in this case, the admissions by Brown, Brown was not an obscure witness. Brown was Turkey's president. He was a president of Turkey. Right. So what? Well, I consider it to be a person of ordinary skill in the art according to the court. That's right. What happens in the situation where the jury is not directed at all of any evidence, even though the evidence is in the record this time? Well, I think in this case, it was the combination would be apparent to the jury. I think they, I mean, they found an infinity. We don't know the basis because it was a general verdict. We don't know exactly why they came to the conclusion they did. But clearly, they felt it was obvious. It might be a different situation if you have multiple references that you have to combine. Here it was almost everything except for one limitation was present. And I think in this case, I think it was possible for the jury to reach this conclusion. We don't know. We don't know. We don't know. You're right. And that's because Turkey, we had asked for a special verdict, more detailed verdict. Turkey insisted that it be a general verdict. But you could have presented to the jury all of the evidence and linked it pretty well though. But you... I suppose it's possible to say that. But the other thing to realize is that as DJ Plaintiff, we went first. Browns and Mission came in Turkey's case. They went second

. Here it was almost everything except for one limitation was present. And I think in this case, I think it was possible for the jury to reach this conclusion. We don't know. We don't know. We don't know. You're right. And that's because Turkey, we had asked for a special verdict, more detailed verdict. Turkey insisted that it be a general verdict. But you could have presented to the jury all of the evidence and linked it pretty well though. But you... I suppose it's possible to say that. But the other thing to realize is that as DJ Plaintiff, we went first. Browns and Mission came in Turkey's case. They went second. I suppose maybe in closing argument, we could have said something about it. But we certainly didn't plan ahead for Browns and Mission. We didn't know that they were coming. Well, you know what this looks like? It looks as though you were trying to take somewhat conflicting positions on invulidity and infringement. And it looks as though you didn't want to witness to get up there and testify that this was obvious because the cross examination of them would give you a problem on the infringement issue. Because if the prior art was obvious to... To include the predetermined with the limitation, the jury might well have concluded that that limitation was present in the accused's life. That's the problem. Well, Dr. Casmond testified that when he went through each piece of prior art, he said, as for predetermined, he says, at least as turnkey was applying with claims. And that's why I think the jury could have found that, well, it's not really there. We don't believe it's there in the accused. Lenses, we don't believe it's there in the prior art. You had witnesses come in and testify, did you not, that with respect to the accused lenses, that nobody thought of cross-lamination and increasing strength

. I suppose maybe in closing argument, we could have said something about it. But we certainly didn't plan ahead for Browns and Mission. We didn't know that they were coming. Well, you know what this looks like? It looks as though you were trying to take somewhat conflicting positions on invulidity and infringement. And it looks as though you didn't want to witness to get up there and testify that this was obvious because the cross examination of them would give you a problem on the infringement issue. Because if the prior art was obvious to... To include the predetermined with the limitation, the jury might well have concluded that that limitation was present in the accused's life. That's the problem. Well, Dr. Casmond testified that when he went through each piece of prior art, he said, as for predetermined, he says, at least as turnkey was applying with claims. And that's why I think the jury could have found that, well, it's not really there. We don't believe it's there in the accused. Lenses, we don't believe it's there in the prior art. You had witnesses come in and testify, did you not, that with respect to the accused lenses, that nobody thought of cross-lamination and increasing strength. That's true. And in fact, we did not predetermine. That's what the testimony was. And as I said, Dr. Casmond testified that as turnkey was applying that term, it would be there. But, you know, the jury could have certainly found that it was not there in the prior art. You can have a stand-by. I think you're trying to have a close way. I don't think that... I think in this case, the bottle I just was the verdict of in-will-a-supported. Was there substantial evidence? And I think there was. On the issue of predetermined, Mr. Brown's admissions, there were two, as I mentioned. And in turnkeys, brief, they tried to argue that somehow these admissions need to be combined

. That's true. And in fact, we did not predetermine. That's what the testimony was. And as I said, Dr. Casmond testified that as turnkey was applying that term, it would be there. But, you know, the jury could have certainly found that it was not there in the prior art. You can have a stand-by. I think you're trying to have a close way. I don't think that... I think in this case, the bottle I just was the verdict of in-will-a-supported. Was there substantial evidence? And I think there was. On the issue of predetermined, Mr. Brown's admissions, there were two, as I mentioned. And in turnkeys, brief, they tried to argue that somehow these admissions need to be combined. And I think we've made it clear that we don't believe they do. The first statement by Mr. Brown was the admission as to the pre-trial feature. Second one was the admission as to motivation. One other comment, as Judge Dyke pointed out, the prior art lenses and cassettes actually already taught flow channels that result in crossing flows. And Dr. Kasm were pointed that in his direct testimony. He showed detailed flow analyses that he did using a technique that was available to people of ordinary skill at the time. And what Brown added was simply the idea that the flow channels were put there on purpose to change the direction of flow and the motivation for doing that. And I think Turkey concocts this argument that redirecting doesn't necessarily mean you know the resulting direction. But there's no testimony about that in trial. And at this point, all reasonable differences should be drawn in Kuwaito's favor on that issue. Another topic was the motivation to combine the turkey raises. I think there are Brown's admissions were clearly made in the context of injection molded plastic. It wasn't all plastic products. This testimony was specific to injection molded products

. And I think we've made it clear that we don't believe they do. The first statement by Mr. Brown was the admission as to the pre-trial feature. Second one was the admission as to motivation. One other comment, as Judge Dyke pointed out, the prior art lenses and cassettes actually already taught flow channels that result in crossing flows. And Dr. Kasm were pointed that in his direct testimony. He showed detailed flow analyses that he did using a technique that was available to people of ordinary skill at the time. And what Brown added was simply the idea that the flow channels were put there on purpose to change the direction of flow and the motivation for doing that. And I think Turkey concocts this argument that redirecting doesn't necessarily mean you know the resulting direction. But there's no testimony about that in trial. And at this point, all reasonable differences should be drawn in Kuwaito's favor on that issue. Another topic was the motivation to combine the turkey raises. I think there are Brown's admissions were clearly made in the context of injection molded plastic. It wasn't all plastic products. This testimony was specific to injection molded products. That's all the case was about. That's all we were talking about. That's all the testimony was. So somehow Turkey is in this, they put themselves in this position where the accused lenses all somehow needed strengthening afforded by the 268 patent. But somehow the prior art lenses that are used for the same purpose and the same environment of use didn't need that, didn't need strengthening. And I think that that strength credibility. I believe all of the evidence in combination with substantially supported by the obvious and the spurred trial that the trial court was right to deny Turkey's J-Mollest obvious. I have some other comment owners on anticipation, which was not raised. On anticipation was not raised in across the field. I believe that's the proper way to do it. I believe in this case there was no need in fact it would have been proper to raise, to file across appeal on the issue of anticipation. As you may remember in Kuwaito 1, the before our argument even started, the question was raised, well, is this cross appeal proper? We remember that. I'm sure you do. And in that situation we pointed out that it affected all the claims, not just the assertive claims. And it was proper in that case. Here though, the claims are identical

. That's all the case was about. That's all we were talking about. That's all the testimony was. So somehow Turkey is in this, they put themselves in this position where the accused lenses all somehow needed strengthening afforded by the 268 patent. But somehow the prior art lenses that are used for the same purpose and the same environment of use didn't need that, didn't need strengthening. And I think that that strength credibility. I believe all of the evidence in combination with substantially supported by the obvious and the spurred trial that the trial court was right to deny Turkey's J-Mollest obvious. I have some other comment owners on anticipation, which was not raised. On anticipation was not raised in across the field. I believe that's the proper way to do it. I believe in this case there was no need in fact it would have been proper to raise, to file across appeal on the issue of anticipation. As you may remember in Kuwaito 1, the before our argument even started, the question was raised, well, is this cross appeal proper? We remember that. I'm sure you do. And in that situation we pointed out that it affected all the claims, not just the assertive claims. And it was proper in that case. Here though, the claims are identical. We're not trying to enlarge our rights, the claims that are relevant to anticipation are also relevant to obvious. So I think here clearly there was no need to file across appeal. In fact, it would have been improper and I would expect that that might have come up at the beginning of the oral argument today. Again. So I think the, on anticipation, the issue is that the district was simply misunderstood. This course decision in Kuwaito 1. Kuwaito 1 really has to be read in context and not parsed. The operative passage in Kuwaito 1 precluded only prior lenses that use the same method as that made by Kuwaito. The logic behind that is clear. The same method can avoid infringement and at the same time anticipate. However, what the district court didn't realize is that the 300 ZX lens is not an accused lens in our DJ case. It's made by a competitor of Kuwaito and NAL. And it uses a completely different process. And I think you'll find that in our brief on page 38. Now, Turkey never once backed away from its infringement drawings or charts regarding the 300 ZX lens. They didn't back away a trial

. We're not trying to enlarge our rights, the claims that are relevant to anticipation are also relevant to obvious. So I think here clearly there was no need to file across appeal. In fact, it would have been improper and I would expect that that might have come up at the beginning of the oral argument today. Again. So I think the, on anticipation, the issue is that the district was simply misunderstood. This course decision in Kuwaito 1. Kuwaito 1 really has to be read in context and not parsed. The operative passage in Kuwaito 1 precluded only prior lenses that use the same method as that made by Kuwaito. The logic behind that is clear. The same method can avoid infringement and at the same time anticipate. However, what the district court didn't realize is that the 300 ZX lens is not an accused lens in our DJ case. It's made by a competitor of Kuwaito and NAL. And it uses a completely different process. And I think you'll find that in our brief on page 38. Now, Turkey never once backed away from its infringement drawings or charts regarding the 300 ZX lens. They didn't back away a trial. We didn't reach it. We didn't touch it today, not yet. But they have never backed away from it. In fact, Brown, Turkey's president stood by the claim charts when he was questioned on them. So, the evidence, I think, is undisputed that the 300 ZX lens was identical to the prior version of the same lens, at least as to the claims that issued in the 268 patent. And that was based on testimony by Dr. Casmer as pointed out in our brief. I think all of this evidence and combination was substantial evidence supporting the anticipation for it. I think the anticipation, she was actually quite clear. And I believe the Court should reverse the trial court's granting the Turkey's J-Maw has to anticipation. Unless there are questions, I have nothing further to add. Thank you, Mr. Grustin. The resultant will give you two minutes. You're welcome. I just want to briefly stress the point that anticipation and obviousness are separate theories, are separate ways to invalidate a patent

. We didn't reach it. We didn't touch it today, not yet. But they have never backed away from it. In fact, Brown, Turkey's president stood by the claim charts when he was questioned on them. So, the evidence, I think, is undisputed that the 300 ZX lens was identical to the prior version of the same lens, at least as to the claims that issued in the 268 patent. And that was based on testimony by Dr. Casmer as pointed out in our brief. I think all of this evidence and combination was substantial evidence supporting the anticipation for it. I think the anticipation, she was actually quite clear. And I believe the Court should reverse the trial court's granting the Turkey's J-Maw has to anticipation. Unless there are questions, I have nothing further to add. Thank you, Mr. Grustin. The resultant will give you two minutes. You're welcome. I just want to briefly stress the point that anticipation and obviousness are separate theories, are separate ways to invalidate a patent. One comes out of 102, one comes out 103, and there are different elements of proof. And this Court has said, both in their see-glor and in SDA, that, of course, it was in the context of infringement. The Court stated that the fact that some of NISTA's arguments concerning literal infringement might also have been relevant to equivalency is not sufficient in itself to establish that evidence in context for the jury. I think likewise here, I want to emphasize the fact that because of separate and distinct analyses, that there needs to be separate and distinct evidence, unobviousness, and it's not merely subsumed in the anticipation presentation, and here there was no additional evidence. It was very insightful, I just think, where you commented on this trial strategy, and precisely, Kawido is trying to have its cake and eat it too. They really focused on anticipation. They presented several references, described their contents. But never went beyond that. They never said how many people could be combined, what might be missing. They didn't want to admit that anything might be missing. There was absolutely nothing given to the jury for them to actually look through the record to pull out the relevant information to make this determination. And thank you, Zulfan, for taking another advice. All right. We got a little forward with the jury, so I'll have a quick walk tomorrow morning.

Next case is going to be a manufacturing at Algris's Currently checked at Algris's zero five fourteen seventy five Mr. Zelton. Good afternoon. I please the court. The this case presents or the central issue in this case is whether a party can use burden of brewing obviousness by clearing convincing evidence without actually presenting its theory of obviousness to try. Now in this case instead of actually presenting evidence of obviousness. But the jury found obvious and the judge and Jamal well. We have to get from layers here indicating that there were facts that could lead to a conclusion of obviousness. There were facts with respect to the issue of anticipation because there was discussion there was some discussion about certain prior references. Well the court held that the a number of these the basic facts flux, grounds, admission and up to other. Correct. Why is that not properly before? Because a party that has the burden of proving the patent ball has an obligation to treat obviousness as a separate and distinct challenge to validity from anticipation and it has specific elements and there are grant factors that need to be analyzed. And when presenting this to a jury I don't think it's too much to ask that a party present its case to the jury. In struck give guidance to the jury as to how it's to arrive at the obviousness decision. Which is not which is more than simply describing certain of the where the judge was. There was a jury instruction in obviousness. But I think in near see glor this case. Well the most extensive testimony wasn't there that the claim limitation was the exception of the predetermined limitation were satisfied in the prior or. There was more evidence with respect to the references that we're discussing now. There was plenty of evidence that supported jury determination that all the claim limitations were satisfied in the prior or with the exception of the one limitation and that it's the predetermined limitation. I don't believe that's the case. No. There were elements that were missing from that discussion. Well let's talk about the independent claim. Okay so re-frame my question. So with respect to independent claim one and twenty one those are the independent claims right. There was plenty of testimony to enable a jury to conclude that those limitations appeared in the prior or with the exception of the predetermined limitation. I believe that the relevance that were missing. What elements were missing. There was no discussion of a mold layer defining cavity section in the discussion. The discussions were much more general in describing the which was a key element of the invention. The fact that you could have thicker intersections in the mold cavity which forms part of the definition of what a flow channel is. So are you, did you argue this in your brief? I didn't see that you argued that there was any limitation missing from the prior or other than the predetermined limitation. No we raised that in our opening brief. You can show me where. The discussion I believe starts on page forty six of our opening brief. And then we walk through, we initially on page forty seven you will see we take the claims starting with the first independent claim and identify the various limitations. In the first independent claim there are twenty six limitations. And beginning on page forty nine would begin to apply the fact that if you even look at the substantive discussion which was general in nature. Certainly there was more of it than with respect to the prior reference that was addition of the first appeal. You will see at the full paragraph on page forty nine at the bottom it says limitations number three through seven nine ten twelve thirteen fifteen through seventeen twenty one twenty two twenty five. I think the other are from the dependent claims are still missing. Twenty six limitations not exactly a pioneering invention. I'm sorry. I don't think that's right. Well, yeah, and we obviously didn't prevail in the infringement part of the case. But the same limitations that we had to meet in our infringement case must be met precisely on the validity side for the case for the claim to be held in bail. And that burden approved is on Kuido. Let's assume further on to the only claim limitation missing from the prior pre-determined limitation. Okay, let's just type of something. I know you disagree with that. But why couldn't the jury in a recheck inclusion of obviousness without the benefit of expert testimony about that particular limitation? We're not talking about something really complicated here, right? Well, first of all, it is complicated, but second of all, I don't think. And I think the score to even mention that this technology was complicated in the first decision. Well, the technology is complicated, but the predetermined limitation is not complicated. It's just a question of whether they intend to strengthen the plastic parac by lamination, right? That's basically what we're talking about. Right. I think there's a more fundamental problem in that the obviousness case was never presented to the jury. And I think that's the lear see glor case is even, I think, a better analogy. Yeah, but that's my question for now. So why couldn't the jury, if that's the missing element, why couldn't the jury make a determination that someone skilled in the art was no enough to have the predetermined limitation of the prior art, which would render the thing obvious? Number one, nobody told the jury that was the missing element from the other pieces of art about which there was more discussion. And number two, nobody pointed to anywhere in this extensive record where they should look to find that one missing limitation. If indeed that was what was missing in the jury. So you believe they didn't need expert testimony on that one? They don't need expert testimony. This linking evidence could be done in closing argument. It could be done in a claim chart. It could be any sort of presentation of evidence that will give the jury guidance as to how it is to reach a decision of obviousness, applying the law of obviousness. I'm not specific because the charge have to be with respect to obviousness. They have to be shown that you add A, B and C and you come up with D or is it just showing that A, B and C are present? I think that if somebody is going to be combining references, they need to identify that to the jury, saying that to reach your decision if some elements A, B and C are found in this reference, D is found in that reference, and that you're to combine the two and the motivation to combine the two is found somewhere else in the record. I think those legal elements must be met. Now, can the jury then decide that it's not A, B and C but D, E and F which are part of the record and combining those? Why do you think they need to do that if it's in the record? If it's in the record, I think the jury is free to do it because I think the party presenting the evidence has met its burden of proof. That's I think the problem here is we haven't met the first threshold. You're saying it's not in the record? It's not in the record. There is nothing. No, it's not specified in the record. There is no theory laid out in the record at all. Does it have to be a theory and has to be laid out or is it just evidence which is in the record which is presented to the jury? Well, I think according to Lear Seagler, you need some linking. The signal is an infringement. Yeah, it's often a problem in the issue. Correct. And in the first COWD case, the court applied the Lear Seagler concept to the context of anticipation and obviousness. But I think that footnote that really goes to the issues to whether the evidence was in the record, not whether it was a linking point, but is it in the record? Is the evidence in the record that can be developed by the jury itself without having to be led to the... I still think that the analogy to Lear Seagler is really profound here in the sense that there's a burden of proof and a party is going to trial to present an issue, to invalidate a patent, and going into trial, you would think that it's not too much to ask to figure out what evidence you will rely on, how you will combine it, where the motivation is. And that you will present that to a jury, and it's not the obligation to a jury to sift through this volume of record and figure out which parts fit and where, and where the motivation to combine is. In fact, it's a higher burden of clear convincing evidence on validity than it is the proponents of the evidence for infringement. And the score has said that it is not the obligation of the trial judge to sift through the evidence to figure out the possible validity analysis. I think it's a shifting of the burden to merely take and present evidence of anticipation, and merely argue in the alternative and closing that if you don't find anticipation, somewhere in here is obvious, and whatever is missing, as long as it's obvious to people of skill in the art, you can do it. But not give the jury any guidance, any tools to reset decision. I don't think that means the higher burden. Even if the evidence is in the record. Even if the evidence is in the record. I think you have to select the process by which the jury then determines how to combine the references or combine the prior art or whatever is available to it. I assume that if somebody is going to bring that to a trial, they have at least figured out what theory they have for obviousness. What pieces of art need to be combined or what pieces of art needs to be modified. And that I believe it is their duty and obligation to at least provide some sort of guidance to the jury as to how they can reach it. If a jury file is a different path, that's out of our control, but at least it meant their burden of teaching the jury and giving them some road man. If we were to reject that argument about the need for linking arguments. Do you agree that there was sufficient evidence in record here for the jury to find that the predetermined limitation was obvious? No. Why not? Because the statements that are relied on by the court, the trial court, are two statements by Paul Brown that don't mention the evidence. They don't mention predetermined general limitation. And they don't mention combining it with any of the other art. They don't mention tail lights or methods of making tail lights. They don't mention audio cassette housings or making a bottom one. Audio cassette housings. And frankly, the predetermined direction limitation has other language in it. They do mention slow channels or directing slow. Correct. So isn't it reasonably combined with references that deal with the need to do that? There is no evidence at all that the reference, the other references, the automobile tail light lenses or the audio cassettes had a need for redirecting slow. Of desirability. Well, there's always the only desirability that's there comes from this concept, this very general concept that cross-lumination improves strength. But all plastic products could benefit from improved strength. And there was nothing in the record that said that flow channels were known to improve strength. That's not what they were used for before the 2.68-PAT. But you did say there were two overlapping layers of low in different directions. There was no need for the path. Correct. The concept of cross-lumination was also known. Absolutely. And it was not the exact flow was also known. Correct. So what we have is a situation here in which the prior art did have cross-laminated tail light. And it was generally known that cross-lamination improves strength, right? Correct. But nobody knew that flow channels would improve strength, or that flow channels could be used for cross-lamination. And I think without applying hindsight, we have to show, we have to find some connection, some motivation. Were you using flow channels to cross-laminate in the prior art? The requirement of the redetermined general direction. The requirement of the redetermined general direction. Were you using flow channels to cross-laminate in the prior art? I mean, there was testimony that that was not a test. There was no testimony that they met the pretty term of general direction. And that's been interpreted. But there was testimony that flow channels were used to cross-laminate tail light, right? Not in the prior art, but in the accused devices, yes. Well, I thought in the prior art also, and later the earlier camera and this time. Dr. Pansmore was never asserting that flow channels were used to redirect flow. He was saying that there were flow channels there. And the position that Kaviyo took was the knowledge, the predetermined general direction. And the intent of the flow channel were used to create it. Because we're in fact, we needed cross-laminated tail light, quite a thick tail light in the prior art, right? Yes. Yes. Dr. Nelson, I'm going to interrupt the flow of your argument. So let's just say there was a time. Oh, what's that? Mr. Gretzmann. Good afternoon, Your Honor. May I please the court? Since we left off an obvious, obviously, let me start there. That's where we began, too. That's where we began, you're right. Turn keys attacked others on an allegation that there was no explanatory or linking evidence. And they rely heavily on what they call the law of the case. But what they don't recognize is that Kaviyo 1 felt exclusively with one reference, JPO-82. There's a Japanese reference that was introduced into evidence, but there was no substantive testimony at all as this court realized in Kui-1 and pointed out. Yeah, but you got sort of a thin case here, I guess. Maybe it's good enough, but it's pretty thin. And you think that you were making an obvious mistake, you'd have somebody come in and testify about the missing element of suggestion that combined all that. You didn't do that. Well, I respectfully disagree, Your Honor. You think that's the way you usually try to make it? Well, I don't know about how you usually try cases, but in this case, the evidence was that nearly every feature in the claim was present in the prior art that Dr. Kasmu testified about. The only possible exception being predetermined that limitation. And that limitation was admitted on cross-examination by Mr. Brown, turn keys president. So I don't think it was a great question. Well, he made two admissions. The first one I think dealt with predetermined. He said it was an invention predetermined. No, he said it was known to use flow channels to redirect flow. And what that means is, and what the jury could have understood that to me, reasonably so, was that you redirect flow in a different direction that's known. I mean, after all, why would you redirect flow and have no idea where the flow is going? It doesn't make sense. And that was his first statement on cross-examination. The second one had to do with the motivation to combine. He said that it was known to use, to have flows crossed, to strengthen the part. That was the motivation for using a known flow direction in the prior lenses and cassettes. I think, you know, one issue is that in our view of both the jury and the trial court were in the best position here to gauge the impact of this testimony, both by Dr. Casmer and by Mr. Brown. The trial court clearly felt there were multiple bases upon which the jury could have rendered their project of invalidity. And, you know, the question is, the issue here is, you know, why didn't we explain these theories to the jury? I think you asked that, Judge Stuy. And as I explained, there were substantial evidence that all limitations were present in the prior art cassettes and the lenses except possibly for that predetermined limitation. But is it right to leave the jury to its own devices to determine what's in and what's out in prior art, even though it's in the evidence? Well, you know, picking shoes, whatever they want. Yeah, I think in this case, the admissions by Brown, Brown was not an obscure witness. Brown was Turkey's president. He was a president of Turkey. Right. So what? Well, I consider it to be a person of ordinary skill in the art according to the court. That's right. What happens in the situation where the jury is not directed at all of any evidence, even though the evidence is in the record this time? Well, I think in this case, it was the combination would be apparent to the jury. I think they, I mean, they found an infinity. We don't know the basis because it was a general verdict. We don't know exactly why they came to the conclusion they did. But clearly, they felt it was obvious. It might be a different situation if you have multiple references that you have to combine. Here it was almost everything except for one limitation was present. And I think in this case, I think it was possible for the jury to reach this conclusion. We don't know. We don't know. We don't know. You're right. And that's because Turkey, we had asked for a special verdict, more detailed verdict. Turkey insisted that it be a general verdict. But you could have presented to the jury all of the evidence and linked it pretty well though. But you... I suppose it's possible to say that. But the other thing to realize is that as DJ Plaintiff, we went first. Browns and Mission came in Turkey's case. They went second. I suppose maybe in closing argument, we could have said something about it. But we certainly didn't plan ahead for Browns and Mission. We didn't know that they were coming. Well, you know what this looks like? It looks as though you were trying to take somewhat conflicting positions on invulidity and infringement. And it looks as though you didn't want to witness to get up there and testify that this was obvious because the cross examination of them would give you a problem on the infringement issue. Because if the prior art was obvious to... To include the predetermined with the limitation, the jury might well have concluded that that limitation was present in the accused's life. That's the problem. Well, Dr. Casmond testified that when he went through each piece of prior art, he said, as for predetermined, he says, at least as turnkey was applying with claims. And that's why I think the jury could have found that, well, it's not really there. We don't believe it's there in the accused. Lenses, we don't believe it's there in the prior art. You had witnesses come in and testify, did you not, that with respect to the accused lenses, that nobody thought of cross-lamination and increasing strength. That's true. And in fact, we did not predetermine. That's what the testimony was. And as I said, Dr. Casmond testified that as turnkey was applying that term, it would be there. But, you know, the jury could have certainly found that it was not there in the prior art. You can have a stand-by. I think you're trying to have a close way. I don't think that... I think in this case, the bottle I just was the verdict of in-will-a-supported. Was there substantial evidence? And I think there was. On the issue of predetermined, Mr. Brown's admissions, there were two, as I mentioned. And in turnkeys, brief, they tried to argue that somehow these admissions need to be combined. And I think we've made it clear that we don't believe they do. The first statement by Mr. Brown was the admission as to the pre-trial feature. Second one was the admission as to motivation. One other comment, as Judge Dyke pointed out, the prior art lenses and cassettes actually already taught flow channels that result in crossing flows. And Dr. Kasm were pointed that in his direct testimony. He showed detailed flow analyses that he did using a technique that was available to people of ordinary skill at the time. And what Brown added was simply the idea that the flow channels were put there on purpose to change the direction of flow and the motivation for doing that. And I think Turkey concocts this argument that redirecting doesn't necessarily mean you know the resulting direction. But there's no testimony about that in trial. And at this point, all reasonable differences should be drawn in Kuwaito's favor on that issue. Another topic was the motivation to combine the turkey raises. I think there are Brown's admissions were clearly made in the context of injection molded plastic. It wasn't all plastic products. This testimony was specific to injection molded products. That's all the case was about. That's all we were talking about. That's all the testimony was. So somehow Turkey is in this, they put themselves in this position where the accused lenses all somehow needed strengthening afforded by the 268 patent. But somehow the prior art lenses that are used for the same purpose and the same environment of use didn't need that, didn't need strengthening. And I think that that strength credibility. I believe all of the evidence in combination with substantially supported by the obvious and the spurred trial that the trial court was right to deny Turkey's J-Mollest obvious. I have some other comment owners on anticipation, which was not raised. On anticipation was not raised in across the field. I believe that's the proper way to do it. I believe in this case there was no need in fact it would have been proper to raise, to file across appeal on the issue of anticipation. As you may remember in Kuwaito 1, the before our argument even started, the question was raised, well, is this cross appeal proper? We remember that. I'm sure you do. And in that situation we pointed out that it affected all the claims, not just the assertive claims. And it was proper in that case. Here though, the claims are identical. We're not trying to enlarge our rights, the claims that are relevant to anticipation are also relevant to obvious. So I think here clearly there was no need to file across appeal. In fact, it would have been improper and I would expect that that might have come up at the beginning of the oral argument today. Again. So I think the, on anticipation, the issue is that the district was simply misunderstood. This course decision in Kuwaito 1. Kuwaito 1 really has to be read in context and not parsed. The operative passage in Kuwaito 1 precluded only prior lenses that use the same method as that made by Kuwaito. The logic behind that is clear. The same method can avoid infringement and at the same time anticipate. However, what the district court didn't realize is that the 300 ZX lens is not an accused lens in our DJ case. It's made by a competitor of Kuwaito and NAL. And it uses a completely different process. And I think you'll find that in our brief on page 38. Now, Turkey never once backed away from its infringement drawings or charts regarding the 300 ZX lens. They didn't back away a trial. We didn't reach it. We didn't touch it today, not yet. But they have never backed away from it. In fact, Brown, Turkey's president stood by the claim charts when he was questioned on them. So, the evidence, I think, is undisputed that the 300 ZX lens was identical to the prior version of the same lens, at least as to the claims that issued in the 268 patent. And that was based on testimony by Dr. Casmer as pointed out in our brief. I think all of this evidence and combination was substantial evidence supporting the anticipation for it. I think the anticipation, she was actually quite clear. And I believe the Court should reverse the trial court's granting the Turkey's J-Maw has to anticipation. Unless there are questions, I have nothing further to add. Thank you, Mr. Grustin. The resultant will give you two minutes. You're welcome. I just want to briefly stress the point that anticipation and obviousness are separate theories, are separate ways to invalidate a patent. One comes out of 102, one comes out 103, and there are different elements of proof. And this Court has said, both in their see-glor and in SDA, that, of course, it was in the context of infringement. The Court stated that the fact that some of NISTA's arguments concerning literal infringement might also have been relevant to equivalency is not sufficient in itself to establish that evidence in context for the jury. I think likewise here, I want to emphasize the fact that because of separate and distinct analyses, that there needs to be separate and distinct evidence, unobviousness, and it's not merely subsumed in the anticipation presentation, and here there was no additional evidence. It was very insightful, I just think, where you commented on this trial strategy, and precisely, Kawido is trying to have its cake and eat it too. They really focused on anticipation. They presented several references, described their contents. But never went beyond that. They never said how many people could be combined, what might be missing. They didn't want to admit that anything might be missing. There was absolutely nothing given to the jury for them to actually look through the record to pull out the relevant information to make this determination. And thank you, Zulfan, for taking another advice. All right. We got a little forward with the jury, so I'll have a quick walk tomorrow morning