Legal Case Summary

Next case will be 06010651097. Ellen W. Incorporated the shirt deck. Mr. Greater. Please the court. This appeal involves factual issues that we request be considered to know about this court. And specifically, it was never any evidence that all of the 16 heat shields and issues in French, the patent suit. The other last note didn't lend state in his affidavit that he examined all of the items that were supplied. He only made a visual inspection of the Dr. Holmes. You're talking about him. Well, Holmes, we agree that everybody knows that Holmes only sliced one of them in two. Right? He picked the one that was the smallest and the only one. But he did say in his affidavit I have examined all of them

. Did he? His examination was not anything more than a visual outward investigation which would not determine the issue of the Frenchman. In order to determine the issue of the Frenchman, you would have to at a minimum section the heat shields and Dr. Chapman at the time of the summer. Did you contest the summer judgment of non-infringer on the grounds that only one shield had been dissected? Yes, consequently. We contested it by saying in our papers that— I'm talking about in response the summer judgment not later, not when the motion and limitate came up to limit your testimony. Let me explain that. We had in the summer judgment papers as we indicated in our offer approved trial answers to request for admissions which were directed towards whether all of the shields were the same and we denied that request. That was part of the summer judgment paperwork. Further, Dr. Chapman in his declaration talked about sectioning all of the shields, not just the one that was presented to the court. And he pointed out that because of the disparate shapes other than the one that was symmetrical which was presented to the court. What I was trying to get at is simply as a matter of the sort of celibatex summary judgment game when the party comes forward and says, well, we've got a summer judgment, non-infringer, but they put in evidence linked to the Holmes' appetit, right? And you're going to have to counter that because Holmes' for whatever its worth, he seems to be saying, I've looked at all of it. But he didn't do the things that you would have to do to prove infringement. You only— You only bet it was— But your job to counter that, isn't it, to come back in your opposition to the motion of summary judgment lay all of that out? And we did

. I did not see it. Where in the record is your response to the summary judgment, Lohs? Well, the issue of response included the declarations of Mr. Jones and also the declaration of Dr. Chapman. And those were referred to in the appendix and also in our briefs, both of our briefs. There are several citations to those beginning. By your stand, and where in where does Chapman raise this point of saying, well, you can't rely on Holmes. Where does he take issue with Holmes? It was not that he takes issue with Holmes other than he points out that Holmes' measurements on the one shield, as he sets out in his declaration, that those measurements were faulty because they don't show a gap, an air gap, but then, in fact, the dimensional information that was shown there was hardly the size of a human air. Well, but that's with respect to the question of whether any of the shields in French. What you started off your argument with is the proposition that, since he only cut into one of them, that no inference can be drawn as to the rest. And what I think Judge Clevenger is asking, and I'm curious as well, is, did you expressly, in the specificity, say to the district court in response to the summary judgment of motion, wait whatever other infirmities there are, and we believe there are other infirmities in the case of infringement. One of them is that he is only cut into one, and there's no probative evidence with respect to the others. Did you make that argument to the district court? We didn't say it in those words, but we believe we said it through the declaration of Dr. Chapman, which goes into his sectioning a number of these shields and his conclusion that there's an ironing out of the metal, and also Mr

. Jones, who testified in his declaration that you're stamping these things, these three sheets of metal that are planar, not withstandoffs. Let me ask the question a different way. You didn't say it with all the verbiage that I used, but did you at any point say there's a difference among the different shields? We attached all the different shields. An important difference with respect to whatever inferences one might draw with respect to infringement. We thought we did, Your Honor, and in fact we believe we did because of the fact that we went through in a more generic way why you can't take this one small shield and use it as typical because we have denied in our responses to admissions that there was a typical shield. So that evidence was before in the district judge when he entered some judgment. And I think it's more important here to consider the basic issue of the other side admitting at trial that what they had represented to the court as the so-called typical shield wasn't in fact typical at all. The other side used figure 9 from the provisional application, which we clearly have stated in our papers, is not typical. That in fact even using that, assuming it was typical, which it isn't, there was no evidence that there was elevated temperature that would cause any movement at all. In fact the only evidence in the case was that the elevated temperature would have to be more than 800 degrees more than what the environment would have. And at trial we were faced with, or the other side was faced with trying to establish willfulness. And so what do they say? They say, well we disavow our presentations to judge about figure 9 because that figure was not the accused product and is not the accused product. And so therefore the opinion that was rendered on that figure is worthless and we should get our willfulness. And I don't think that is fair under circumstances

. I also don't think it's fair to characterize the testimony and Mr. Crane and Mr. Jones as being supportive of the fact that figure 9 is typical. In fact as we point out in our library the testimony when you actually lay it out on a piece of paper does not provide that support at all. There's no reference to figure 9 and either one of these gentlemen's testimony. So what the district court had? It had Sheridan's representation that figure 9 was the typical shield. It was our position that as we said in our response to the mission, which we submitted with some majority of the papers. That is not the typical shield. And Dr. Chapman then went through not only the father history for the patent but he also went through the description of why all these shields when you cross section them show one pound characteristic and that is the ironing out. And he also pointed out why the effect was so at a minimum. At a minimum we believe there were genuine issues of fact that we raised. But it didn't get trial judge by the notion that was at the end of your address or in the Dr. Chapman had conceded that there were air gaps

. And that seems the district court opinion says Alan W. acknowledged that embossment separate the layer of his heat shield. They clearly create air gaps. Well, no, I don't think that I don't think that the what's the support in the record for the statement that should balance the other side of the same question that Alan W. acknowledged is that the embossment separate the layers. We only we only point out it in Dr. Chapman's declaration, which I think is being referred to that there is a there is a very because of when you press these three planar pieces of metal together with this huge height of the shield. And in fact, hunting to press, there's still going to be just for manufacturing tolerance. There's going to be some infinitesimal amount of space. You can't get perfect connection between all these pieces of metal, dirt in the embossment. But what he did was he identified that space as being dimensionally less than the size of a hair. And of course, the patent itself and its preferred embodiment talks about an air gap that's anywhere from 10 to 30 times greater than that. And we're talking about a very thin part because at its final dimension, it's still only in the range of 20,000 to 30,000 of an inch in thickness after it's been pressed. So I don't think there's any support that relates to the infringement issue, which is what we what we have pointed to

. I think that I may have misunderstood because I thought in the briefing that the Bluebury Bid Bay 25 is taking Chapman's testimony and saying otherwise, L&W admits that the embossment separates the layers. And there's enough separation and sense under the claim construction that capacity to create an air gap is enough. Well, we don't that we didn't admit that we didn't admit that the air gap that would be it wasn't even an air gap. The the dimensional tolerance separation was would be considered an air gap because the patent requires an minimum of, as I said, 10 and we've cited this in a very tender. Chapman statement, Chapman statement, which the other side, Victoron, was to say Chapman state seemed boss was intended only to increase rigidity of the product, not to create air gap. And they read into that to say, well, you know, actually, since you've shown that there is some dimension between the two, then there's a potential air gap there. But the court, the law court determined based upon the characterization from Sheridan that there was going to be these huge gaps that occurred at elevated temperature. And that just is factually not correct. And you want to say you want to say your rebuttal or do you want to keep going? No, I wouldn't say no. Thank you. Mr. Schusser. Thank you. Thank you, Mr

. Court. Stephen Schusser for Appalice, Sheer Tech and Stephen Sheridan. The L&W is challenging the judges' affirmation of a jury verdict finding claim seven valid. Question then on that point claim seven is, could a reasonable jury find that L&W had failed to meet its burden of clear convincing evidence, so as to prove that claim seven was invalid. Indeed, that is what happened. They failed to satisfy the burden. The jury found it, the judge affirmed it, and now they're coming back to second guess it. There was a number of different pieces of evidence in the trial from which a reasonable jury could determine that even though it found claim one to be invalid, claim seven was valid. First, the jury was pointed to statements by the patent examiner, and that's on 1599 of the joint appendix. There, the PTO, the patent examiner, notes that a piece of prior art referred to as the FOIL family, a flimsy, a flexible piece of prior art, one of several. States Sheridan's sheets would be in close proximity, I be biased towards each other. And goes on to say at 1599, Sheridan differs from the current claims in the dizzyed shield is not disclosed to be shaped for specific uses, which require bends and therefore may not have. The type of in-plane stresses asked for further bi applicant. I saw a definition that was adopted of bias, and I didn't actually help me very much in just a practical sense

. What is your understanding of that term and see if you can explain it in late terms for me? When you have firm pieces of metal, not practically flimsy, but relatively firm as described in the written description, and they are joined at the edges and they have an osman's where long-sounding. What happens is those bumps at the same time push against one another so as they try to separate, but because they're joined at the edges, the sheets are trying to come together. So there's this push me pull me, if I can refer to Dr. DuLittle, where you have the sheets trying to come together and yet being expanded in a heart by the embossed person. And indeed, the jury, what it's difficult to speculate as to what the jury may or may have fun, that's one of the problems I believe with Alan W. Zaryman. But the jury certainly had evidence to find that these flexible heat shields, what we call a foil family, exhibited biocene. They were tied at the edges, joined at the edges, and they had bumps. So they should, the jury could have found the biocene, but that they didn't show the inclined stress to increase rigidity that was claimed in plane 7. In other words, you could drape them over a chair and they would just flop over like a towel. Indeed, this prior art that we argued against was designed to work with a carrier or a frame and not to stand on product as our product. Could I ask on the infringement point, what's the support and the record for the judges statement that Alan W acknowledges that embossed would separate the layers of the heat shield? A number of points, Your Honor, if I could begin by stating that their primary engineer and patent applicant testified that, who was that? Excuse me, Jim's crib or Jim crib, James crib. Mr. Cree testified in his deposition that the Alan W

. design, he referred as the Alan W. design, was covered by his patent application. So this is the Cree and Jones testimony? Yes, Ron. So what else besides that? Well, if I could start with that, I'm Jay, 1967. You just established it. Well, spelled out in the brief. Okay, the next point, then if you go actually to 1953, Your Honor, I do think this is important. 1953, they have their patent application. Their very patent application leads under the field of invention. They speak of the figure 9 issue. It isn't figure 9, you are exactly. So you think the trial judge was relying on the figure 9 issue? Well, it's not just figure 9, Your Honor. There's Craig and Jones. Well, and then, real 59, what else? There's Trin, there's Jones

. There's figure 9, there's the actual patent application, which is 953, continuing on in 955 in the appendix. There is, well, and nothing is lawyer law firm, Rainier Fishman and Rower, where they state on 744, Your Honor, in their opinion. This was their non-infringement opinion. They write, quote, it is our understanding that in proposed commercial embodiments for L&W's heat shield construction, are substantially as described in Mr. Cringes written description and accompanying drawings. Your Honor, those drawings include among others figure 9. Again, when this very law firm that's now arguing for L&W gave the non-infringement opinion, they referred to figure 9 as the commercial embodiment, and it was only a trial that they did it about the fate. Well, this particular passage you just read doesn't specifically advert to figure 9. Are you saying that there was somewhere else that they specified? Yes, we're going to tie it together. Yeah. Starting at 744, the joint appendix. And then going to 948 to the joint appendix, which is a few pages after, at the top of 948 is figure 9. Right. And I have before me the whole opinion of non-infringement, the court cares to look at it, but this figure 9 was attached as exhibit C to the opinion. And if court, which looked at, put no 3 in 744, it states a copy of Mr. Cringes written description and drawings, because it's attached as exhibit C, an excerpt of which can be found from 944 through 9, well, through 9, 5-1, I believe, at least through 944, and then includes figure 9, among others. So then there's no statement as such. Beyond the statement you just read, which is substantially as described in the written description and accompanying drawings, that specifically ties the product to figure 9. You're just saying, well, figure 9 was among the drawings. Right. Figure 9 was among the drawings, it was, what we believe has happened is you have Mr. Cringes, Mr. Jones, L&W's lawyer, and in fact, their expert, the court worked to turn to 1842 in the expert declaration, Kirby Chapman. Under paragraph 44, Dr. Chapman, L&W's own expert states, quote, in the second sentence, moreover, it is obvious to one skilled in the art that the L&W P-Chile has layers that are free to expand apart. So even their own expert in his declaration isn't contested in the fact that these layers can open up to three gaps. In the prior page, paragraph 36, which is J.A

. And if court, which looked at, put no 3 in 744, it states a copy of Mr. Cringes written description and drawings, because it's attached as exhibit C, an excerpt of which can be found from 944 through 9, well, through 9, 5-1, I believe, at least through 944, and then includes figure 9, among others. So then there's no statement as such. Beyond the statement you just read, which is substantially as described in the written description and accompanying drawings, that specifically ties the product to figure 9. You're just saying, well, figure 9 was among the drawings. Right. Figure 9 was among the drawings, it was, what we believe has happened is you have Mr. Cringes, Mr. Jones, L&W's lawyer, and in fact, their expert, the court worked to turn to 1842 in the expert declaration, Kirby Chapman. Under paragraph 44, Dr. Chapman, L&W's own expert states, quote, in the second sentence, moreover, it is obvious to one skilled in the art that the L&W P-Chile has layers that are free to expand apart. So even their own expert in his declaration isn't contested in the fact that these layers can open up to three gaps. In the prior page, paragraph 36, which is J.A. 1840, he writes last sentence, as a result, the sheets of the accused products lie as proximate or close to each other as possible, as possible. He doesn't dispute that there are gaps here on. Well, but that would be true. If you took a rim of paper, and I flopped it down on the desk here, you would be able to say, I suppose, that there are gaps between each of the sheets of paper, because they, given manufacturing tolerances, no matter how good they are, there will be imperfections in each sheet of paper that will create gaps, even though they may be at the micron or sub-micron level, depending on the quality of the paper. That's not what the pattern is about, I take it. You wouldn't argue that something which was compressed as much as it possibly could be short of welding it together would be an infringement of this pattern, would you? If the sheets were totally bonded together, the sheets are separate, but they are designed to be as flat as they possibly could, and pile it up on one another, and they were machined to the highest tolerance available under ordinary technology. But nonetheless, there would be some space there, you're maybe an angstrom of space between each sheet. You wouldn't argue that that would be in French, would you because of the air spaces between the sheets? I would argue that if all the other characteristics were meturon, that even a small gap, very small, I'm not here to define exactly how small, but even a small gap has the key to inhibiting properties that were designed to be addressed by the claims of the pattern. If I can state, it goes beyond that, because L&W intended to create the aerobics in its accused products. On 953, it writes the present invention to talk. The present invention was thermal management system, and more particularly to a heat shield, and a method of manufacture thereof, that utilizes multiple layers provided with made-it-on-delayations that separate inaketed state to introduce insulated materials. This again is referring to their application and the figure NAU. This actually is a patterned application, you're wrong. The other side's argument is that it's unfair to tax them and the infringement analysis with the application and with figure NAU

. 1840, he writes last sentence, as a result, the sheets of the accused products lie as proximate or close to each other as possible, as possible. He doesn't dispute that there are gaps here on. Well, but that would be true. If you took a rim of paper, and I flopped it down on the desk here, you would be able to say, I suppose, that there are gaps between each of the sheets of paper, because they, given manufacturing tolerances, no matter how good they are, there will be imperfections in each sheet of paper that will create gaps, even though they may be at the micron or sub-micron level, depending on the quality of the paper. That's not what the pattern is about, I take it. You wouldn't argue that something which was compressed as much as it possibly could be short of welding it together would be an infringement of this pattern, would you? If the sheets were totally bonded together, the sheets are separate, but they are designed to be as flat as they possibly could, and pile it up on one another, and they were machined to the highest tolerance available under ordinary technology. But nonetheless, there would be some space there, you're maybe an angstrom of space between each sheet. You wouldn't argue that that would be in French, would you because of the air spaces between the sheets? I would argue that if all the other characteristics were meturon, that even a small gap, very small, I'm not here to define exactly how small, but even a small gap has the key to inhibiting properties that were designed to be addressed by the claims of the pattern. If I can state, it goes beyond that, because L&W intended to create the aerobics in its accused products. On 953, it writes the present invention to talk. The present invention was thermal management system, and more particularly to a heat shield, and a method of manufacture thereof, that utilizes multiple layers provided with made-it-on-delayations that separate inaketed state to introduce insulated materials. This again is referring to their application and the figure NAU. This actually is a patterned application, you're wrong. The other side's argument is that it's unfair to tax them and the infringement analysis with the application and with figure NAU. That's what they say. They had clear evidence in front of the judge to say, wait a second, whatever the accused product is, it's not that. Well, you're on a... that's what they're saying, but I would dispute that. I mean, we do have James Kring, who is the first and most familiar. It isn't the old and the question whether there was a genuine issue of material fact in dispute on this very point. And I believe it. Correct you. And you think no, and the other side thinks yes. And we say the other and says no. And if you're wrong on that, then there needs to be a trial, right? If the judge were wrong on that back then, and in light of all the evidence at the time, what they proposed and what they responded to, what they said, yes, I believe it is simply not in that case. What's the answer on the question on these so-called inconsistent verdicts and on what happened at the trial as the judge was pulling the jurors at the very end? What I ask you at the side of the same thing, if you look at the record, it's actually in volume two at the very end, I believe

. That's what they say. They had clear evidence in front of the judge to say, wait a second, whatever the accused product is, it's not that. Well, you're on a... that's what they're saying, but I would dispute that. I mean, we do have James Kring, who is the first and most familiar. It isn't the old and the question whether there was a genuine issue of material fact in dispute on this very point. And I believe it. Correct you. And you think no, and the other side thinks yes. And we say the other and says no. And if you're wrong on that, then there needs to be a trial, right? If the judge were wrong on that back then, and in light of all the evidence at the time, what they proposed and what they responded to, what they said, yes, I believe it is simply not in that case. What's the answer on the question on these so-called inconsistent verdicts and on what happened at the trial as the judge was pulling the jurors at the very end? What I ask you at the side of the same thing, if you look at the record, it's actually in volume two at the very end, I believe. The judge calls the jurors in and calls the jurors, right? This is on page 650 of the record. Get the answers as to the validity issue and gets the damages. And then the judge says on page 651, I'm going to tell your districters in a minute, and then you'll be beyond for the control of the court, free of meaning I have to do. And then he just charges the jury. And then he says to the parties, anything anybody would like to record to reflect at this time. Now the jury's been discharged. Were the parties free after the jury's been discharged when the app they left the courtroom at 4.41 pm to complain about inconsistent verdicts? Yes. Well, the other side has argued that they didn't have a chance because the jury got discharged. What happened? The record reflects that the council were entitled, if they wanted to talk to the jurors, you said you wanted to talk to the jurors, right? Did both sides go talk to the jurors? My recollection is Mr. Radar was there as well, yes, and all as were all the jurors back in the jury. I was certainly there, the jurors were all there, and my recollection, I can confirm it, but the recollection is Mr. Radar was there as well, asking the jurors what they found significant. So your view is that if somebody had wanted to object, even though there had been a, quote, formal discharge of the jury, the jury was still on the property, and that if someone had made an objection saying, hey, wait a second, 7 and 10 are blatantly inconsistent, 1 and 7 are probably inconsistent

. The judge calls the jurors in and calls the jurors, right? This is on page 650 of the record. Get the answers as to the validity issue and gets the damages. And then the judge says on page 651, I'm going to tell your districters in a minute, and then you'll be beyond for the control of the court, free of meaning I have to do. And then he just charges the jury. And then he says to the parties, anything anybody would like to record to reflect at this time. Now the jury's been discharged. Were the parties free after the jury's been discharged when the app they left the courtroom at 4.41 pm to complain about inconsistent verdicts? Yes. Well, the other side has argued that they didn't have a chance because the jury got discharged. What happened? The record reflects that the council were entitled, if they wanted to talk to the jurors, you said you wanted to talk to the jurors, right? Did both sides go talk to the jurors? My recollection is Mr. Radar was there as well, yes, and all as were all the jurors back in the jury. I was certainly there, the jurors were all there, and my recollection, I can confirm it, but the recollection is Mr. Radar was there as well, asking the jurors what they found significant. So your view is that if somebody had wanted to object, even though there had been a, quote, formal discharge of the jury, the jury was still on the property, and that if someone had made an objection saying, hey, wait a second, 7 and 10 are blatantly inconsistent, 1 and 7 are probably inconsistent. And I'd like to have the jury explain to us the inconsistency, then there was an opportunity for that to happen. Your Honor, absolutely, not only would I say that, but I would say it was if Mr. Radar felt it was significant enough issue, he could have raised the issue even before the jury was discharged. In other words, he could have on his own proactively, say to the jury. Well, your basic point of take in response to Judge Clevverns' question, if I understand it, is that the point at which the judge said the words, you are discharged, was not actually the point at which the jury lost the capacity to decide to continue deliberations if the judge so instructed them, if the parties and the lawyers so desired. In other words, what usually happens in these situations is that if there's a problem with the verdict, the judge invites the lawyers to comment, one lawyer says there's a problem here, there's an inconsistency or this doesn't make any sense or I can't read the writing or whatever. And the judge says, you know, you're right. Ladies and gentlemen, the jury, I'm going to ask you to return the jury room for a little bit more deliberations and come back with an answer to this question that will resolve any ambiguity or whatever. The jury trots out, comes back 10 minutes later and you've got your answer. However, in this case, the wrinkle is that the judge, quote, discharged the jury at that point. They were presumably either to pick up their stuff or wait for you all if they wanted to talk to you or whatever, but they were sort of on their way out at the point at which the judge asked for comments. And the question I have is, is it clear from the local procedure or any of the circumstances that were there that the judge could have, I wouldn't have had the authority to say at that point if somebody had spoken up in response to the invitation. Please come back, go retire again. Is there some magic that attaches to the discharge? I will say this year, I am not aware of any magic that would apply that would prevent the judge within seconds, literally a minute and most of discharging the jury from asking the jury back, reinstalling for purposes of addressing a question raised by one council

. And I'd like to have the jury explain to us the inconsistency, then there was an opportunity for that to happen. Your Honor, absolutely, not only would I say that, but I would say it was if Mr. Radar felt it was significant enough issue, he could have raised the issue even before the jury was discharged. In other words, he could have on his own proactively, say to the jury. Well, your basic point of take in response to Judge Clevverns' question, if I understand it, is that the point at which the judge said the words, you are discharged, was not actually the point at which the jury lost the capacity to decide to continue deliberations if the judge so instructed them, if the parties and the lawyers so desired. In other words, what usually happens in these situations is that if there's a problem with the verdict, the judge invites the lawyers to comment, one lawyer says there's a problem here, there's an inconsistency or this doesn't make any sense or I can't read the writing or whatever. And the judge says, you know, you're right. Ladies and gentlemen, the jury, I'm going to ask you to return the jury room for a little bit more deliberations and come back with an answer to this question that will resolve any ambiguity or whatever. The jury trots out, comes back 10 minutes later and you've got your answer. However, in this case, the wrinkle is that the judge, quote, discharged the jury at that point. They were presumably either to pick up their stuff or wait for you all if they wanted to talk to you or whatever, but they were sort of on their way out at the point at which the judge asked for comments. And the question I have is, is it clear from the local procedure or any of the circumstances that were there that the judge could have, I wouldn't have had the authority to say at that point if somebody had spoken up in response to the invitation. Please come back, go retire again. Is there some magic that attaches to the discharge? I will say this year, I am not aware of any magic that would apply that would prevent the judge within seconds, literally a minute and most of discharging the jury from asking the jury back, reinstalling for purposes of addressing a question raised by one council. There's nothing that I know where. And if I'm seeing a little hyper technical, I suppose to. I know my time's up. Maybe point or point. I think we have it. Thank you. Mr. Raider. Could you tell us what happened about when the jury was discharged? There was a way process was that the verdict was published, but we weren't given copies of it, so we were actually sitting and writing it down at the time the judge announced six minutes later the jury was discharged. By the time we got back to the jury room, a number of the jurors that are left. So we didn't have an opportunity either to see the verdict or even comment on the verdict before the jury was discharged. With respect to you, you had to read to you. You had had read to you that the jury had found an independent claim not invalid and had found the claim depending from an invalid. Correct? That has been read to you in the jury and you're a patent lawyer

. There's nothing that I know where. And if I'm seeing a little hyper technical, I suppose to. I know my time's up. Maybe point or point. I think we have it. Thank you. Mr. Raider. Could you tell us what happened about when the jury was discharged? There was a way process was that the verdict was published, but we weren't given copies of it, so we were actually sitting and writing it down at the time the judge announced six minutes later the jury was discharged. By the time we got back to the jury room, a number of the jurors that are left. So we didn't have an opportunity either to see the verdict or even comment on the verdict before the jury was discharged. With respect to you, you had to read to you. You had had read to you that the jury had found an independent claim not invalid and had found the claim depending from an invalid. Correct? That has been read to you in the jury and you're a patent lawyer. You're not. That was just one. I'm not saying, Your Honor, please. I'm not saying that we didn't recognize immediately because ten of you have been claimed that we didn't recognize immediately. There may have been an inconsistency. You did recognize. I mean, I'm not saying we didn't. You did recognize immediately. Only in a moment. And we were never given an opportunity to even raise that issue before the jury was gone, which is not what I believe the process was intended to be. But coming back to the to the points that council made, first let me say again that there was no evidence in the record about figure nine or anything like figure nine being. The commercial product, the opinion that's being referred to at the time of the summary judgment and even at trial, it was clear that that was not the product that was had been commercialized. The opinion was done. Where do we know that it was clear that although your infringement decision opinion may have been based on believing that the commercial environment was per figure nine

. You're not. That was just one. I'm not saying, Your Honor, please. I'm not saying that we didn't recognize immediately because ten of you have been claimed that we didn't recognize immediately. There may have been an inconsistency. You did recognize. I mean, I'm not saying we didn't. You did recognize immediately. Only in a moment. And we were never given an opportunity to even raise that issue before the jury was gone, which is not what I believe the process was intended to be. But coming back to the to the points that council made, first let me say again that there was no evidence in the record about figure nine or anything like figure nine being. The commercial product, the opinion that's being referred to at the time of the summary judgment and even at trial, it was clear that that was not the product that was had been commercialized. The opinion was done. Where do we know that it was clear that although your infringement decision opinion may have been based on believing that the commercial environment was per figure nine. By the time you get to trial, you realize it was not right. That's what you're telling me. Well, because because the evidence and testimony was that even Mr. Kring testified to this that he did an experiment on the provisional application figure nine in determined that it took a thousand degrees to get any movement. And so they abandoned that idea went off in a different direction. And remember that the figure nine illustrates sheets that are of different thicknesses. And of course the accused product only has sheets that are of the same thickness. So figure nine was intended to deal with a situation where you get it up to a thousand degrees. You may get some movement. It was a theoretical idea, which was abandoned on the other side knew that everybody knew that. Well, in your opinion, in which you said that the provisional application and its figures are essentially the accused device. What does that what do we take from that? That was referring to the method of making the product, which would include taking three sheets of metal and then handing them at the edges. And there are planar there's no standoffs. They're not pre-formed like the patent requires and you stamp it with these heavy presses

. By the time you get to trial, you realize it was not right. That's what you're telling me. Well, because because the evidence and testimony was that even Mr. Kring testified to this that he did an experiment on the provisional application figure nine in determined that it took a thousand degrees to get any movement. And so they abandoned that idea went off in a different direction. And remember that the figure nine illustrates sheets that are of different thicknesses. And of course the accused product only has sheets that are of the same thickness. So figure nine was intended to deal with a situation where you get it up to a thousand degrees. You may get some movement. It was a theoretical idea, which was abandoned on the other side knew that everybody knew that. Well, in your opinion, in which you said that the provisional application and its figures are essentially the accused device. What does that what do we take from that? That was referring to the method of making the product, which would include taking three sheets of metal and then handing them at the edges. And there are planar there's no standoffs. They're not pre-formed like the patent requires and you stamp it with these heavy presses. But what it was for the patent talks about leaving air spaces. The patent application only talked about the application. The patent only I talked about it in connection primarily with the air spaces that will be created at elevated temperature in figure nine. Any other gap would be as you said earlier, just a tolerance issue, which you would get with any any piece of the material that are sheet and settlement with respect and validity. I do want to point out that in the in the course determination that in plain stresses are created when the L&W of peach yields are bent from plainer to non planer. It was a sheer text argument in the joint appendix at 38 and 39 that they gave an example of a deck of cards which was bent. In fact, they say each half is bent. And so now they're saying that you could have a difference. In fact, what biasing is, you're under the answer question, is when you bend it and you have these sheets one on each other, you have a biasing that is a vertical biasing of the sheets coming together and you have an in plain stress. But both of which come from the process of bent and therefore claims one in seven are indistinguishable in terms of that issue, claim one claim biasing, which is the vertical component of that stress when you bend and seven claim in plain stress, which is the horizontal component of that bent when it's bent. And so, I think that's we give you enough extra time to make up for extra time he had so we'll take the case under submission.

Next case will be 06010651097. Ellen W. Incorporated the shirt deck. Mr. Greater. Please the court. This appeal involves factual issues that we request be considered to know about this court. And specifically, it was never any evidence that all of the 16 heat shields and issues in French, the patent suit. The other last note didn't lend state in his affidavit that he examined all of the items that were supplied. He only made a visual inspection of the Dr. Holmes. You're talking about him. Well, Holmes, we agree that everybody knows that Holmes only sliced one of them in two. Right? He picked the one that was the smallest and the only one. But he did say in his affidavit I have examined all of them. Did he? His examination was not anything more than a visual outward investigation which would not determine the issue of the Frenchman. In order to determine the issue of the Frenchman, you would have to at a minimum section the heat shields and Dr. Chapman at the time of the summer. Did you contest the summer judgment of non-infringer on the grounds that only one shield had been dissected? Yes, consequently. We contested it by saying in our papers that— I'm talking about in response the summer judgment not later, not when the motion and limitate came up to limit your testimony. Let me explain that. We had in the summer judgment papers as we indicated in our offer approved trial answers to request for admissions which were directed towards whether all of the shields were the same and we denied that request. That was part of the summer judgment paperwork. Further, Dr. Chapman in his declaration talked about sectioning all of the shields, not just the one that was presented to the court. And he pointed out that because of the disparate shapes other than the one that was symmetrical which was presented to the court. What I was trying to get at is simply as a matter of the sort of celibatex summary judgment game when the party comes forward and says, well, we've got a summer judgment, non-infringer, but they put in evidence linked to the Holmes' appetit, right? And you're going to have to counter that because Holmes' for whatever its worth, he seems to be saying, I've looked at all of it. But he didn't do the things that you would have to do to prove infringement. You only— You only bet it was— But your job to counter that, isn't it, to come back in your opposition to the motion of summary judgment lay all of that out? And we did. I did not see it. Where in the record is your response to the summary judgment, Lohs? Well, the issue of response included the declarations of Mr. Jones and also the declaration of Dr. Chapman. And those were referred to in the appendix and also in our briefs, both of our briefs. There are several citations to those beginning. By your stand, and where in where does Chapman raise this point of saying, well, you can't rely on Holmes. Where does he take issue with Holmes? It was not that he takes issue with Holmes other than he points out that Holmes' measurements on the one shield, as he sets out in his declaration, that those measurements were faulty because they don't show a gap, an air gap, but then, in fact, the dimensional information that was shown there was hardly the size of a human air. Well, but that's with respect to the question of whether any of the shields in French. What you started off your argument with is the proposition that, since he only cut into one of them, that no inference can be drawn as to the rest. And what I think Judge Clevenger is asking, and I'm curious as well, is, did you expressly, in the specificity, say to the district court in response to the summary judgment of motion, wait whatever other infirmities there are, and we believe there are other infirmities in the case of infringement. One of them is that he is only cut into one, and there's no probative evidence with respect to the others. Did you make that argument to the district court? We didn't say it in those words, but we believe we said it through the declaration of Dr. Chapman, which goes into his sectioning a number of these shields and his conclusion that there's an ironing out of the metal, and also Mr. Jones, who testified in his declaration that you're stamping these things, these three sheets of metal that are planar, not withstandoffs. Let me ask the question a different way. You didn't say it with all the verbiage that I used, but did you at any point say there's a difference among the different shields? We attached all the different shields. An important difference with respect to whatever inferences one might draw with respect to infringement. We thought we did, Your Honor, and in fact we believe we did because of the fact that we went through in a more generic way why you can't take this one small shield and use it as typical because we have denied in our responses to admissions that there was a typical shield. So that evidence was before in the district judge when he entered some judgment. And I think it's more important here to consider the basic issue of the other side admitting at trial that what they had represented to the court as the so-called typical shield wasn't in fact typical at all. The other side used figure 9 from the provisional application, which we clearly have stated in our papers, is not typical. That in fact even using that, assuming it was typical, which it isn't, there was no evidence that there was elevated temperature that would cause any movement at all. In fact the only evidence in the case was that the elevated temperature would have to be more than 800 degrees more than what the environment would have. And at trial we were faced with, or the other side was faced with trying to establish willfulness. And so what do they say? They say, well we disavow our presentations to judge about figure 9 because that figure was not the accused product and is not the accused product. And so therefore the opinion that was rendered on that figure is worthless and we should get our willfulness. And I don't think that is fair under circumstances. I also don't think it's fair to characterize the testimony and Mr. Crane and Mr. Jones as being supportive of the fact that figure 9 is typical. In fact as we point out in our library the testimony when you actually lay it out on a piece of paper does not provide that support at all. There's no reference to figure 9 and either one of these gentlemen's testimony. So what the district court had? It had Sheridan's representation that figure 9 was the typical shield. It was our position that as we said in our response to the mission, which we submitted with some majority of the papers. That is not the typical shield. And Dr. Chapman then went through not only the father history for the patent but he also went through the description of why all these shields when you cross section them show one pound characteristic and that is the ironing out. And he also pointed out why the effect was so at a minimum. At a minimum we believe there were genuine issues of fact that we raised. But it didn't get trial judge by the notion that was at the end of your address or in the Dr. Chapman had conceded that there were air gaps. And that seems the district court opinion says Alan W. acknowledged that embossment separate the layer of his heat shield. They clearly create air gaps. Well, no, I don't think that I don't think that the what's the support in the record for the statement that should balance the other side of the same question that Alan W. acknowledged is that the embossment separate the layers. We only we only point out it in Dr. Chapman's declaration, which I think is being referred to that there is a there is a very because of when you press these three planar pieces of metal together with this huge height of the shield. And in fact, hunting to press, there's still going to be just for manufacturing tolerance. There's going to be some infinitesimal amount of space. You can't get perfect connection between all these pieces of metal, dirt in the embossment. But what he did was he identified that space as being dimensionally less than the size of a hair. And of course, the patent itself and its preferred embodiment talks about an air gap that's anywhere from 10 to 30 times greater than that. And we're talking about a very thin part because at its final dimension, it's still only in the range of 20,000 to 30,000 of an inch in thickness after it's been pressed. So I don't think there's any support that relates to the infringement issue, which is what we what we have pointed to. I think that I may have misunderstood because I thought in the briefing that the Bluebury Bid Bay 25 is taking Chapman's testimony and saying otherwise, L&W admits that the embossment separates the layers. And there's enough separation and sense under the claim construction that capacity to create an air gap is enough. Well, we don't that we didn't admit that we didn't admit that the air gap that would be it wasn't even an air gap. The the dimensional tolerance separation was would be considered an air gap because the patent requires an minimum of, as I said, 10 and we've cited this in a very tender. Chapman statement, Chapman statement, which the other side, Victoron, was to say Chapman state seemed boss was intended only to increase rigidity of the product, not to create air gap. And they read into that to say, well, you know, actually, since you've shown that there is some dimension between the two, then there's a potential air gap there. But the court, the law court determined based upon the characterization from Sheridan that there was going to be these huge gaps that occurred at elevated temperature. And that just is factually not correct. And you want to say you want to say your rebuttal or do you want to keep going? No, I wouldn't say no. Thank you. Mr. Schusser. Thank you. Thank you, Mr. Court. Stephen Schusser for Appalice, Sheer Tech and Stephen Sheridan. The L&W is challenging the judges' affirmation of a jury verdict finding claim seven valid. Question then on that point claim seven is, could a reasonable jury find that L&W had failed to meet its burden of clear convincing evidence, so as to prove that claim seven was invalid. Indeed, that is what happened. They failed to satisfy the burden. The jury found it, the judge affirmed it, and now they're coming back to second guess it. There was a number of different pieces of evidence in the trial from which a reasonable jury could determine that even though it found claim one to be invalid, claim seven was valid. First, the jury was pointed to statements by the patent examiner, and that's on 1599 of the joint appendix. There, the PTO, the patent examiner, notes that a piece of prior art referred to as the FOIL family, a flimsy, a flexible piece of prior art, one of several. States Sheridan's sheets would be in close proximity, I be biased towards each other. And goes on to say at 1599, Sheridan differs from the current claims in the dizzyed shield is not disclosed to be shaped for specific uses, which require bends and therefore may not have. The type of in-plane stresses asked for further bi applicant. I saw a definition that was adopted of bias, and I didn't actually help me very much in just a practical sense. What is your understanding of that term and see if you can explain it in late terms for me? When you have firm pieces of metal, not practically flimsy, but relatively firm as described in the written description, and they are joined at the edges and they have an osman's where long-sounding. What happens is those bumps at the same time push against one another so as they try to separate, but because they're joined at the edges, the sheets are trying to come together. So there's this push me pull me, if I can refer to Dr. DuLittle, where you have the sheets trying to come together and yet being expanded in a heart by the embossed person. And indeed, the jury, what it's difficult to speculate as to what the jury may or may have fun, that's one of the problems I believe with Alan W. Zaryman. But the jury certainly had evidence to find that these flexible heat shields, what we call a foil family, exhibited biocene. They were tied at the edges, joined at the edges, and they had bumps. So they should, the jury could have found the biocene, but that they didn't show the inclined stress to increase rigidity that was claimed in plane 7. In other words, you could drape them over a chair and they would just flop over like a towel. Indeed, this prior art that we argued against was designed to work with a carrier or a frame and not to stand on product as our product. Could I ask on the infringement point, what's the support and the record for the judges statement that Alan W acknowledges that embossed would separate the layers of the heat shield? A number of points, Your Honor, if I could begin by stating that their primary engineer and patent applicant testified that, who was that? Excuse me, Jim's crib or Jim crib, James crib. Mr. Cree testified in his deposition that the Alan W. design, he referred as the Alan W. design, was covered by his patent application. So this is the Cree and Jones testimony? Yes, Ron. So what else besides that? Well, if I could start with that, I'm Jay, 1967. You just established it. Well, spelled out in the brief. Okay, the next point, then if you go actually to 1953, Your Honor, I do think this is important. 1953, they have their patent application. Their very patent application leads under the field of invention. They speak of the figure 9 issue. It isn't figure 9, you are exactly. So you think the trial judge was relying on the figure 9 issue? Well, it's not just figure 9, Your Honor. There's Craig and Jones. Well, and then, real 59, what else? There's Trin, there's Jones. There's figure 9, there's the actual patent application, which is 953, continuing on in 955 in the appendix. There is, well, and nothing is lawyer law firm, Rainier Fishman and Rower, where they state on 744, Your Honor, in their opinion. This was their non-infringement opinion. They write, quote, it is our understanding that in proposed commercial embodiments for L&W's heat shield construction, are substantially as described in Mr. Cringes written description and accompanying drawings. Your Honor, those drawings include among others figure 9. Again, when this very law firm that's now arguing for L&W gave the non-infringement opinion, they referred to figure 9 as the commercial embodiment, and it was only a trial that they did it about the fate. Well, this particular passage you just read doesn't specifically advert to figure 9. Are you saying that there was somewhere else that they specified? Yes, we're going to tie it together. Yeah. Starting at 744, the joint appendix. And then going to 948 to the joint appendix, which is a few pages after, at the top of 948 is figure 9. Right. And I have before me the whole opinion of non-infringement, the court cares to look at it, but this figure 9 was attached as exhibit C to the opinion. And if court, which looked at, put no 3 in 744, it states a copy of Mr. Cringes written description and drawings, because it's attached as exhibit C, an excerpt of which can be found from 944 through 9, well, through 9, 5-1, I believe, at least through 944, and then includes figure 9, among others. So then there's no statement as such. Beyond the statement you just read, which is substantially as described in the written description and accompanying drawings, that specifically ties the product to figure 9. You're just saying, well, figure 9 was among the drawings. Right. Figure 9 was among the drawings, it was, what we believe has happened is you have Mr. Cringes, Mr. Jones, L&W's lawyer, and in fact, their expert, the court worked to turn to 1842 in the expert declaration, Kirby Chapman. Under paragraph 44, Dr. Chapman, L&W's own expert states, quote, in the second sentence, moreover, it is obvious to one skilled in the art that the L&W P-Chile has layers that are free to expand apart. So even their own expert in his declaration isn't contested in the fact that these layers can open up to three gaps. In the prior page, paragraph 36, which is J.A. 1840, he writes last sentence, as a result, the sheets of the accused products lie as proximate or close to each other as possible, as possible. He doesn't dispute that there are gaps here on. Well, but that would be true. If you took a rim of paper, and I flopped it down on the desk here, you would be able to say, I suppose, that there are gaps between each of the sheets of paper, because they, given manufacturing tolerances, no matter how good they are, there will be imperfections in each sheet of paper that will create gaps, even though they may be at the micron or sub-micron level, depending on the quality of the paper. That's not what the pattern is about, I take it. You wouldn't argue that something which was compressed as much as it possibly could be short of welding it together would be an infringement of this pattern, would you? If the sheets were totally bonded together, the sheets are separate, but they are designed to be as flat as they possibly could, and pile it up on one another, and they were machined to the highest tolerance available under ordinary technology. But nonetheless, there would be some space there, you're maybe an angstrom of space between each sheet. You wouldn't argue that that would be in French, would you because of the air spaces between the sheets? I would argue that if all the other characteristics were meturon, that even a small gap, very small, I'm not here to define exactly how small, but even a small gap has the key to inhibiting properties that were designed to be addressed by the claims of the pattern. If I can state, it goes beyond that, because L&W intended to create the aerobics in its accused products. On 953, it writes the present invention to talk. The present invention was thermal management system, and more particularly to a heat shield, and a method of manufacture thereof, that utilizes multiple layers provided with made-it-on-delayations that separate inaketed state to introduce insulated materials. This again is referring to their application and the figure NAU. This actually is a patterned application, you're wrong. The other side's argument is that it's unfair to tax them and the infringement analysis with the application and with figure NAU. That's what they say. They had clear evidence in front of the judge to say, wait a second, whatever the accused product is, it's not that. Well, you're on a... that's what they're saying, but I would dispute that. I mean, we do have James Kring, who is the first and most familiar. It isn't the old and the question whether there was a genuine issue of material fact in dispute on this very point. And I believe it. Correct you. And you think no, and the other side thinks yes. And we say the other and says no. And if you're wrong on that, then there needs to be a trial, right? If the judge were wrong on that back then, and in light of all the evidence at the time, what they proposed and what they responded to, what they said, yes, I believe it is simply not in that case. What's the answer on the question on these so-called inconsistent verdicts and on what happened at the trial as the judge was pulling the jurors at the very end? What I ask you at the side of the same thing, if you look at the record, it's actually in volume two at the very end, I believe. The judge calls the jurors in and calls the jurors, right? This is on page 650 of the record. Get the answers as to the validity issue and gets the damages. And then the judge says on page 651, I'm going to tell your districters in a minute, and then you'll be beyond for the control of the court, free of meaning I have to do. And then he just charges the jury. And then he says to the parties, anything anybody would like to record to reflect at this time. Now the jury's been discharged. Were the parties free after the jury's been discharged when the app they left the courtroom at 4.41 pm to complain about inconsistent verdicts? Yes. Well, the other side has argued that they didn't have a chance because the jury got discharged. What happened? The record reflects that the council were entitled, if they wanted to talk to the jurors, you said you wanted to talk to the jurors, right? Did both sides go talk to the jurors? My recollection is Mr. Radar was there as well, yes, and all as were all the jurors back in the jury. I was certainly there, the jurors were all there, and my recollection, I can confirm it, but the recollection is Mr. Radar was there as well, asking the jurors what they found significant. So your view is that if somebody had wanted to object, even though there had been a, quote, formal discharge of the jury, the jury was still on the property, and that if someone had made an objection saying, hey, wait a second, 7 and 10 are blatantly inconsistent, 1 and 7 are probably inconsistent. And I'd like to have the jury explain to us the inconsistency, then there was an opportunity for that to happen. Your Honor, absolutely, not only would I say that, but I would say it was if Mr. Radar felt it was significant enough issue, he could have raised the issue even before the jury was discharged. In other words, he could have on his own proactively, say to the jury. Well, your basic point of take in response to Judge Clevverns' question, if I understand it, is that the point at which the judge said the words, you are discharged, was not actually the point at which the jury lost the capacity to decide to continue deliberations if the judge so instructed them, if the parties and the lawyers so desired. In other words, what usually happens in these situations is that if there's a problem with the verdict, the judge invites the lawyers to comment, one lawyer says there's a problem here, there's an inconsistency or this doesn't make any sense or I can't read the writing or whatever. And the judge says, you know, you're right. Ladies and gentlemen, the jury, I'm going to ask you to return the jury room for a little bit more deliberations and come back with an answer to this question that will resolve any ambiguity or whatever. The jury trots out, comes back 10 minutes later and you've got your answer. However, in this case, the wrinkle is that the judge, quote, discharged the jury at that point. They were presumably either to pick up their stuff or wait for you all if they wanted to talk to you or whatever, but they were sort of on their way out at the point at which the judge asked for comments. And the question I have is, is it clear from the local procedure or any of the circumstances that were there that the judge could have, I wouldn't have had the authority to say at that point if somebody had spoken up in response to the invitation. Please come back, go retire again. Is there some magic that attaches to the discharge? I will say this year, I am not aware of any magic that would apply that would prevent the judge within seconds, literally a minute and most of discharging the jury from asking the jury back, reinstalling for purposes of addressing a question raised by one council. There's nothing that I know where. And if I'm seeing a little hyper technical, I suppose to. I know my time's up. Maybe point or point. I think we have it. Thank you. Mr. Raider. Could you tell us what happened about when the jury was discharged? There was a way process was that the verdict was published, but we weren't given copies of it, so we were actually sitting and writing it down at the time the judge announced six minutes later the jury was discharged. By the time we got back to the jury room, a number of the jurors that are left. So we didn't have an opportunity either to see the verdict or even comment on the verdict before the jury was discharged. With respect to you, you had to read to you. You had had read to you that the jury had found an independent claim not invalid and had found the claim depending from an invalid. Correct? That has been read to you in the jury and you're a patent lawyer. You're not. That was just one. I'm not saying, Your Honor, please. I'm not saying that we didn't recognize immediately because ten of you have been claimed that we didn't recognize immediately. There may have been an inconsistency. You did recognize. I mean, I'm not saying we didn't. You did recognize immediately. Only in a moment. And we were never given an opportunity to even raise that issue before the jury was gone, which is not what I believe the process was intended to be. But coming back to the to the points that council made, first let me say again that there was no evidence in the record about figure nine or anything like figure nine being. The commercial product, the opinion that's being referred to at the time of the summary judgment and even at trial, it was clear that that was not the product that was had been commercialized. The opinion was done. Where do we know that it was clear that although your infringement decision opinion may have been based on believing that the commercial environment was per figure nine. By the time you get to trial, you realize it was not right. That's what you're telling me. Well, because because the evidence and testimony was that even Mr. Kring testified to this that he did an experiment on the provisional application figure nine in determined that it took a thousand degrees to get any movement. And so they abandoned that idea went off in a different direction. And remember that the figure nine illustrates sheets that are of different thicknesses. And of course the accused product only has sheets that are of the same thickness. So figure nine was intended to deal with a situation where you get it up to a thousand degrees. You may get some movement. It was a theoretical idea, which was abandoned on the other side knew that everybody knew that. Well, in your opinion, in which you said that the provisional application and its figures are essentially the accused device. What does that what do we take from that? That was referring to the method of making the product, which would include taking three sheets of metal and then handing them at the edges. And there are planar there's no standoffs. They're not pre-formed like the patent requires and you stamp it with these heavy presses. But what it was for the patent talks about leaving air spaces. The patent application only talked about the application. The patent only I talked about it in connection primarily with the air spaces that will be created at elevated temperature in figure nine. Any other gap would be as you said earlier, just a tolerance issue, which you would get with any any piece of the material that are sheet and settlement with respect and validity. I do want to point out that in the in the course determination that in plain stresses are created when the L&W of peach yields are bent from plainer to non planer. It was a sheer text argument in the joint appendix at 38 and 39 that they gave an example of a deck of cards which was bent. In fact, they say each half is bent. And so now they're saying that you could have a difference. In fact, what biasing is, you're under the answer question, is when you bend it and you have these sheets one on each other, you have a biasing that is a vertical biasing of the sheets coming together and you have an in plain stress. But both of which come from the process of bent and therefore claims one in seven are indistinguishable in terms of that issue, claim one claim biasing, which is the vertical component of that stress when you bend and seven claim in plain stress, which is the horizontal component of that bent when it's bent. And so, I think that's we give you enough extra time to make up for extra time he had so we'll take the case under submission