Legal Case Summary

I'm sorry, I'm too happy to have you. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. Okay. The next target is cases number 14, 17, the 76. Hierarch, so each time we play with the notice, we give you. and GNT conveyor the two plaintiffs in the court below. We have a number of summary judgment issues. The thing that unites all of them in my mind is that in every case there is substantial evidence favoring the plaintiffs' positions from which a jury, when that evidence is taken in the light most favorable to the plaintiffs, in which a jury can find and favor the plaintiffs on all of the issues with respect to each of the two patents in the case. The first patent is Claim 3, it is only one claim with a 125 patent. And that is the claim that says you have a car, in this case a roller coaster car, with wheels, right? Mr. Hosseling, why isn't the case the firmable simply for incorrect and venous terms? You have Mr. Chong, or Dr. Chong, who obviously contributes something, the only living client, inventor testified that Mr. Chong was the inventor of, was a co-inventor because of the double-sided motor. There is a provision in the statute that you know very well that can be availed of to correct the venous ship. It wasn't taken advantage of. So why doesn't that settle the issue? I mean, respectfully your honor, I disagree. Mr. Chong said that what he provided facing status, which I know the rule about all the claims of a patent with incorrect and venous ship, which you do have to keep in mind the facing status or inclaim one, not Claim 3

. The defendants were some reason changed their position on appeal and said Mr. Chong is now an inventor of all the claims. It doesn't matter. No, I understand. I understand. I understand. He said it seems to matter to the defendant. But here's my point. Mr. Chong said, I came up with facing status. I don't claim I'm the inventor of it. It's in the books. It's old. The patent examiner in his examination of Claim 10, which issued his Claim 3 said facing status are old. The applicant did not disagree. It amended the claim. That's what I mean. I know most components of a machine are old. It's pointing them together. Correct. And the S case says that one can use the services, the aid, and the ideas of another. And that stems from the O'Reilly Supreme Court case, I think, and the case involving Samuel Morris on telegraphy to the effect that it doesn't matter what the source of the information is if it is prior heart, it doesn't matter whether it comes from a person or it comes from a book. How does this jive with your obvious misogynment? Your argument is that this is a combination of known elements, but it's the combination that's not obvious. And so, is anyone who suggested any portion of the combination an inventor in those circumstances? No. I don't think that's a law. I think if a person proposes the use of prior art as Mr. Hestid to the inventors of the catheter in that case, then he suggested prior art and the court decided that he was not an inventor relying on other precedents. Mr

. Chancel said he's not even I agree that Mr. Stays said, yeah, he had a great idea and we used it. But Mr. Stays had an opinion that that was a great idea. Mr. Stays is not the judge of what is inventive and who is an inventor and who is not. And in any event, and then the definitive lie in the fact that Chanc stuck his knockout and stuck his neck out. And that's what Judge Stein relied on as well. Do what I say? So what? Hest stuck his neck out. What about the on sale bar? There was a deal here with United. It was partially implemented and money was passed. Okay. So why wasn't the court direct regarding an individuality for being on sale? Design. That's why. The word design means to plan and make decisions about to create plans to show how something will be made to make a plan or drawing to show the look function and working of a project before it is made. That is what the engineering services agreement in August of 1991 was all about. Imagine a jury contrasting that engineering services agreement which says words like, develop and design. Here's the words that pop up. Develop and design. Conceptual design work. Begin design. Fluid. One million man hours. Reasonable approximation of project cash flows for configurations active study and missing elements. There was design going on here. I'll tell you when we failed. There's a gap under path. There's a difference between designing a system for a customer based on an already established concept and doing trial and error to see if the concept would actually work

. It's not trial and error to see whether a concept would actually work when you have an engineering services agreement for $250,000. It says, let's begin design. And during the course of that you tell your customer depending upon the configuration chosen, this system will cost you somewhere between $144 million and $195 million. And by the buy it will take us $1,9,000,000 man hours to design the system. There's two. Who's right and wrong? That's not what we're arguing here today. What we're arguing is what reasonable inferences could the jury draw from these documents. And the reasonable inference that the jury could draw from this pattern of conduct is that what happened in May of 1992 was a sale of a detailed specified system, a product for $195 million. What was going on in 1991 was a lot of back and forth about what this system, what this product might or might not include. All the cases that defendants like saccharine and the other cases involved contracts for the design was established. People knew what it was going to be, saccharine. The guy had the fuse for the air drop pump. The design was established yet a cost plus contract. You don't have an established configuration here. You don't have an established design here. Just for example, this system had to be mounted from the floor, from the ceiling, not from the floor because of the design loads involved at the terminal in Denver. You don't have an established. But the invention is not for the specific application in Denver. The invention that's ready for patenting is for a concept that you then adapt for the specific application. I respectfully disagree around it. I don't think you can sell a concept. I think you can sell a product. But I think you can sell an apparatus because that's what's claimed. What's claimed is not a concept. What's claimed is not a design. What's claimed is an apparatus. But you don't have to have the apparatus to want to entail box. And I'm saying that if you look at all the cases cited by both the parties here, there is not one case where you have a design that was so fluid, so incomplete, so speculative as you do here in a jury to draw the conclusion that it was not unsafe

. For $250,000 for 0.17% of the prices being discussed in the later negotiations between the parties. I think a jury would say, yeah, there was a sale May 1992. But was there clear and convincing evidence of a sale in August 1991? No, I think there is no. I didn't just really come out on it. The tracks issue, I wanted to cover, I think it was covered. You can see that there's an error in claims, right? You do not. We did not. We never conceded error in claim three. That is in the state by the district court. That is in the state by the defendants. Our argument in the district court started with there's no error in claim three. Our argument was and has always been that the inventor, that the patent examiner and that the defendant's expert, Dr. Kirkley, all used the word tracks as a synonym for the race. Our argument is further that the inventor said, I understand what the claim means. That's the test of Nautilus. The examiner understood what the claim meant. Mr. Kirkley understands what the claim means. They all use that terminology. We said there is no error in claim three. That is a false lead. If so, you're saying that they meant to use the phrase tracks, even though it's preceded by the word set and tracks has never used previously in the claim. Well it is used previously in the claim. It says the preceding phrase of the claim is a track having two parallel rims. That's part of the reason why I say if you read this claim in context, you understand what they're talking about, especially if you look at the figures and the specification figures one and two. That was your saying it reads a track. We're saying you can say track

. You can say that people skilled in the art reading the phrase opposed to the assembly is mounted between said tracks in the context of that claim in their knowledge. Know that that means between the rest. Let me address the point. There would be an error correction. No. No, this is. No, it isn't. Look, a naval aviator refers to an airplane as an airplane. An Air Force aviator refers to an airplane as a ship. An aviator would tell you that's crazy, but that's standard terminology in the Air Force. So your point is that it doesn't matter if they keep using them in the same claim. In other words, an aviator isn't going to come in and change his terminology midstream. I don't know what they're going to do. All I can say is the persons of reasonable skill in the art reading this claim had no problem understanding what it meant. We know that because they use tracks as an alternative term for rails. I think the examiner set up parallel track configuration. Mr. Kirkley said, where is his second track? There we go. Mr. Kirkley referred to a prior art as having a pair of tracks in a car that rolled on tracks. What I'm saying is this that a jury can reasonably draw the conclusion that persons of skill in the art understand the claim because persons of skill in the art use tracks as another term for rails. Would you go back to the first point before we interrupted you on question of obvious instance? I'm the question of obvious is, you've got Miller as the base reference. You combine it with either Dematai which is a screened or with magnets or you combine it with an older VAE that's a predecessor to TNT technology with flat magnets. Miller says, I want to do two things. I want to be able to slow and bring it hard to a stop and he uses a friction break at claims in order to do that. Dr. Kirkley said in the district court, well, anybody would know, it doesn't give much reason. He said, anybody would know that you could take out the friction break and substitute for it a contact with a streak

. That's what the invention is. Contactness because the fit of the magnets are never supposed to touch. The problem with that is magnetic brakes and the defendant's testimony to grease cannot stop vehicles. They can only slow it. The creation of the force depends upon relative motion. But is there a difference because of the weight it's being used by these defendants as compared with doing it on the level of an airport? I think it is because if you take Miller and put in a contactless brake, Miller cannot both slow a car and stop a car. I read Miller is having two objectives coupled with the conjunction and he wants to have both of them. It's not a work, it's in. That's meaning slow car, stop a car. If you put a contactless brake and Miller, it can't stop a car anymore. But I'm thinking that if in fact, if you were to get to the question of infringement, you might find your claims construed in a sufficiently narrow way that this issue isn't raised. I suppose that's considerable. If we had our claims and trucks and I were doing more claim destruction. In any case, I say you damage the goals of Miller when you take away its ability to stop a car. And the defendant's on a field come up with a new argument. They say, well, he was both. Well, that's not what the expert says. The expert says substitute contactless for friction. The defendant's now saying, appeal, and I think that's way, let's use them both. Why would anyone make that combination? What's the reasoning supporting the combination? There isn't any. And we do have a bit of evidence about secondary considerations. And Judge Stein thought we were talking about claim one. And she said, well, you said, Chung's contribution was old. That's so good. So we're talking about claim three. And one of the CEOs for the defendant said, the mega-closter comes about because of two things. One of them is magnetic rates. You said, they're good

. They're good. So I think that deals with the obvious issues. Well, let's say the rest of your time for revitalization. All right. Thank you. Thank you. Thank you, Mr. Longry. Thank you, Your Honor. May I please the court, Matt Lawyer, of Foley and Larger. On behalf of the defendant of Pellies, which is about 18 or so amusement ride companies, like SIX Flag, Bush Gardens, amusement parks. I guess one I start with indefinite and that's, which of course, is a question of law. Perhaps underlying facts. It's not entirely always clear to me, but certainly, a question of law. I don't think the legal question, whether there's there is. That's your best in validity argument. I would say that they're all solid for a variety of reasons. And I think Your Honor is correct. You only need one. And if there's one you'd like to hear first, I don't judge a lawyer asked about a I'm not a financial person, I have to address it. Don't we know what claim means? Between said tracks is only one track consisting as the early apportionment of the claim says, having two parallel rails. So, doesn't that mean between said rails? It could mean that. So it's not indefinite. It could also mean something else to your owner. It could also mean between wheels. That was a stretch, don't you think? I don't think so at all for a couple of reasons, Your Honor. First of all, it's nowhere else than any of the claims. The other track and the rails are

... No, the other claims are said rails specifically. But here's... I'm sorry. And they don't say between the wheels. No, but if you look in the specification on page 12 of our reef, there's a clip of the specification, and it talks about the importance of having them located between the wheels as opposed to the tracks, which is why either could be substituted and why as Judge Fine noted in her opinion, the 3v6 representative of the plaintiffs admitted, yeah, it could be wheels. Of all the people and the experts and the inventors who testified, they said that when you say track and lean rails. Not true, Your Honor. In fact, the only... Welcome to that lawyer attorney argument that you can read his wheels. Not at all, Your Honor. Professor Curley, Olpine... I'm sorry? You had a witness to... Yes, Your Honor. The expert for the defendant said that it could be wheels or tracks and you can't tell. And the expert for the plaintiffs was silent. Okay. You couldn't tell the difference between wheels or rails. He'll find that it was indefinite because it could be wheels or rails

. And in fact, Judge Fine... This is summary of Judge Fine, right? Well, it is, but there was... You don't have summary of Judge Fine. It is, Your Honor, but there was... I'm not conflicting. I just read a opinion. There was no conflicting expert opinion. Plaintiffs experts did not have a pint on this. This case is... I think you should move on to another topic. Okay. If I may or not, though, I would just note that... Yes. This argument about substituting wheels or that the scope is different was not made below. On Appendix 11,095, it's just a client's opinion where he says, plaintiffs do not contend. And so all of this is a new argument that we also believe this way. If we look, Your Honor, at Inventorship, that also was a question of law, potentially, with underlying facts. But what does that say that the

... It's decided that the Inventorship was wrong. Well, it can't have just be corrected. They have... That's actually explained. They've weighed that argument as well. We said it can't be corrected under Section 256. They didn't respond to it for a variety of reasons. He didn't have an obligation to assign. He was a contractor, so he didn't have an obligation to assign it to the plaintiff. I'm not sure if it's in the record, but we have actually... That's the question of ownership, not inventorship. That's a correction under... But in addition... You're just speculating about why they didn't correct it. But the bottom line is they didn't seek to correct it. That is a correction under... I'm not sure if it's in the record, but I believe that at least certain of the plaintiffs have acquired Mr. Jones' rights, no ongoing payment obligations of any kind. If it were me... Or defend. Defendants, thank you, Your Honor. I'm a spoke. So if they were to correct it, that's... I have the right to answer the question. The argument that Chung really didn't add anything. Maybe he said, I didn't invent this. What he said is he didn't invent double-staters. What he did also say is if we go back and it's undisputed what happened here. They had a one-sided version they were using for circulating baggage. It was overheating. They didn't know what to do. Mr. Chung said in this setting of the claim, put in the double-sided stater. So no, he didn't invent double-sided staters. He put it in to this setting. And it's not disputed. Inventor stays, the only living event are left. Confirmed all of this. He said, it was overheating. Chung said, do this

. I'm not sure if it's in the record, but I believe that at least certain of the plaintiffs have acquired Mr. Jones' rights, no ongoing payment obligations of any kind. If it were me... Or defend. Defendants, thank you, Your Honor. I'm a spoke. So if they were to correct it, that's... I have the right to answer the question. The argument that Chung really didn't add anything. Maybe he said, I didn't invent this. What he said is he didn't invent double-staters. What he did also say is if we go back and it's undisputed what happened here. They had a one-sided version they were using for circulating baggage. It was overheating. They didn't know what to do. Mr. Chung said in this setting of the claim, put in the double-sided stater. So no, he didn't invent double-sided staters. He put it in to this setting. And it's not disputed. Inventor stays, the only living event are left. Confirmed all of this. He said, it was overheating. Chung said, do this. We're like, you're crazy. I'm paraphrasing that's not actually what. Although I think crazy might be one of the words that was used. And nobody believed it. And he did the test and showed up of work. And that led to the two-sided staters. And yes, it's correct that they're old. Yes, it's correct. There is no invention here, actually. We think it's obvious as the judge found for claim three. But the extent that there is an invention here. It's probably explained how could he be an inventor. You should be... It's interesting. I've never seen a circumstance. Well, I suppose claim one is presumed valid. We haven't detected. I would suggest it probably is obvious. It's not a certain thing. It's probably explained how could he be an inventor. The only way he's not an inventor is if there is no patent. And there is one is finissurded. And if it's a holding in the alternative, or like I said, I don't think it needs to be reached. I've never seen a determination that a particular claim was unpathentable. Certainly, if all you're doing is what has to, has to. They said they had the whole invention

. We're like, you're crazy. I'm paraphrasing that's not actually what. Although I think crazy might be one of the words that was used. And nobody believed it. And he did the test and showed up of work. And that led to the two-sided staters. And yes, it's correct that they're old. Yes, it's correct. There is no invention here, actually. We think it's obvious as the judge found for claim three. But the extent that there is an invention here. It's probably explained how could he be an inventor. You should be... It's interesting. I've never seen a circumstance. Well, I suppose claim one is presumed valid. We haven't detected. I would suggest it probably is obvious. It's not a certain thing. It's probably explained how could he be an inventor. The only way he's not an inventor is if there is no patent. And there is one is finissurded. And if it's a holding in the alternative, or like I said, I don't think it needs to be reached. I've never seen a determination that a particular claim was unpathentable. Certainly, if all you're doing is what has to, has to. They said they had the whole invention. They said, what material can we use for this particular thing? And this is what it needs to be like. And the salesman said, oh, I've got a material like that. This is different. They said, we've got this problem. It's overheating. What do we do? And he said, what's it to claim? Two-sided stators, which by the way leads to the two-sided magnet to anyway. There was testimony about an internship from the defendant's expert on an internship. There was none from the plaintiff's expert. It's not that they didn't have an expert. It's that he did not opine on a number of things, including an internship, indefiniteness, and the obviousness theories that caused the district court to grant some adjustment. So what we have here is attorney argument, to be sure. But that's all we have from the plaintiff's side. Including for an internship, I mean, stays doesn't actually say, Chung didn't contribute anything. He shouldn't be an inventor. And stays is in fact a paid consultant for the plaintiffs. Should I move on to Ansel Bar? Oh, your honors. Yes. For Ansel Bar, an offer for sales also a question of law, with potentially underlying facts. And interestingly enough, we have lots of stuff that shows, well, first of all, I want to be clear. This was reduced to practice before the offer for sale, like nine months, before the critical date, and three months before the offer for sale. It was actually not contested. It's in the materials here. So there's no experimental use exception. We don't know if it works kind of thing. The invention was reduced to practice. What was offered for sale? An idea or something within defined by claim three with all of its claim limitations? It was a specific system to be installed at the city of Denver, meeting all of the claim limitations, including specific reference to the double-sided breaks of claim three. Was it ready for patenting? Yes, it had been reduced to practice, which by definition would mean it's ready for patent. And that has been conceded

. They said, what material can we use for this particular thing? And this is what it needs to be like. And the salesman said, oh, I've got a material like that. This is different. They said, we've got this problem. It's overheating. What do we do? And he said, what's it to claim? Two-sided stators, which by the way leads to the two-sided magnet to anyway. There was testimony about an internship from the defendant's expert on an internship. There was none from the plaintiff's expert. It's not that they didn't have an expert. It's that he did not opine on a number of things, including an internship, indefiniteness, and the obviousness theories that caused the district court to grant some adjustment. So what we have here is attorney argument, to be sure. But that's all we have from the plaintiff's side. Including for an internship, I mean, stays doesn't actually say, Chung didn't contribute anything. He shouldn't be an inventor. And stays is in fact a paid consultant for the plaintiffs. Should I move on to Ansel Bar? Oh, your honors. Yes. For Ansel Bar, an offer for sales also a question of law, with potentially underlying facts. And interestingly enough, we have lots of stuff that shows, well, first of all, I want to be clear. This was reduced to practice before the offer for sale, like nine months, before the critical date, and three months before the offer for sale. It was actually not contested. It's in the materials here. So there's no experimental use exception. We don't know if it works kind of thing. The invention was reduced to practice. What was offered for sale? An idea or something within defined by claim three with all of its claim limitations? It was a specific system to be installed at the city of Denver, meeting all of the claim limitations, including specific reference to the double-sided breaks of claim three. Was it ready for patenting? Yes, it had been reduced to practice, which by definition would mean it's ready for patent. And that has been conceded. And we also have expert testimony from Professor Fergley on this particular issue, not rebutted by plaintiffs. You hear me keep saying that. There were things that were rebutted by their expert, and we didn't move for some rejudgment by and large on those. We picked the ones where they had presented no evidence at all. And here, interestingly enough, this is the plaintiff. So which is the sale you've reliant on? The one to the city of Denver, or the one to you knighted? It's city of the Denver. And I think it might be united in the city of Denver. And then there's a later offer for sale that we're not relying on. We had argued it, and the court found a fact question as to the timing of it. But city of Denver, there's no question that before the critical date, they had not only entered into a contract, it's answer your question to build something. They had spent $246,000 in the development contract. We're told. And the development cost was just minor percentage, one or two percent. So it appears that it was not, in fact, finally perfected. So how long we know at what stage the problems resolved, such that it's appropriate to enter into the past. No, the contract was to install a system which required that they do some design work. That's not uncommon, but they were surely. What does that have to do with it? Actually, nothing, because they were commercializing the invention. They had the double-sided breaks. They showed them to their client. The client said, okay, we want that. It actually called for the double-sided breaks. Yes, it was an hour's-leaf basis, but it wasn't a million hours of design work. It included manufacturing installation, the actual documents that are cited in here talk about mechanical installation being done in advance. That's not designed or below. So, yeah, so, of course, any time you're delivering a product, there may be some additional things that need to be done. The question is, is it a part of the claim to mention the answer here is indisputably a call for the double-sided magnetic breaks, which they had actually. There's certainly a work, apparently, it didn't

. And we also have expert testimony from Professor Fergley on this particular issue, not rebutted by plaintiffs. You hear me keep saying that. There were things that were rebutted by their expert, and we didn't move for some rejudgment by and large on those. We picked the ones where they had presented no evidence at all. And here, interestingly enough, this is the plaintiff. So which is the sale you've reliant on? The one to the city of Denver, or the one to you knighted? It's city of the Denver. And I think it might be united in the city of Denver. And then there's a later offer for sale that we're not relying on. We had argued it, and the court found a fact question as to the timing of it. But city of Denver, there's no question that before the critical date, they had not only entered into a contract, it's answer your question to build something. They had spent $246,000 in the development contract. We're told. And the development cost was just minor percentage, one or two percent. So it appears that it was not, in fact, finally perfected. So how long we know at what stage the problems resolved, such that it's appropriate to enter into the past. No, the contract was to install a system which required that they do some design work. That's not uncommon, but they were surely. What does that have to do with it? Actually, nothing, because they were commercializing the invention. They had the double-sided breaks. They showed them to their client. The client said, okay, we want that. It actually called for the double-sided breaks. Yes, it was an hour's-leaf basis, but it wasn't a million hours of design work. It included manufacturing installation, the actual documents that are cited in here talk about mechanical installation being done in advance. That's not designed or below. So, yeah, so, of course, any time you're delivering a product, there may be some additional things that need to be done. The question is, is it a part of the claim to mention the answer here is indisputably a call for the double-sided magnetic breaks, which they had actually. There's certainly a work, apparently, it didn't. That doesn't mean that it couldn't be made to work, and it also doesn't mean it wasn't in an offer for sale. How can it be reduced to practice? Reduction of practice requires that it works with intended purpose. If the answer is that the patent's not enabled, that would be a different ground for imbalidity, and there's surely nothing in this patent that lets you build something over at the city of Denver that doesn't allow you to build the prototype that actually been built. But here, again, there had been a reduction to practice. They offered it for sale. It may be that they offered it in a way that was more difficult, but it had been reduced to practice, and it was offered for sale. If they offered, made a commercial offer for sale that were truly a commercial offer for sale, to build it on the moon, yeah, they probably can't do that, but it was still a commercial offer for sale of something that was ready for patenting. We know it was ready for patenting because we agreed it has been reduced to practice. There's actually a video times the end video of it. It didn't work adequately to satisfy these customers who were paying for development. That may be, but it's still been reduced to practice, and it's still been offered for sale. I just want to make sure I've got this right, because I'm looking at the appendix 1114, the Magistrate Judges Report, and recommendation, and the Magistrate Judges concludes that there was an offer for sale as it relates to United, prior to the critical date, and it says, but then it says the court is not convinced, however, that the defendant's happened to have a commercial offer for sale of the claim system with me to Denver prior to the court. I'm sorry, I may have switched that in my mind, Your Honor. Okay. But the materials that I'm referring to about manufacturing installation are referring to that. Okay. The question is to the procedure which I didn't notice, so there are a lot of motions for summary judgment. Do you also include infringement? I don't think the infringement is those motions. Yes, Your Honor. There is. What happened to that? So, two pieces on that. So, there's a motion to exclude the expert testimony, and what happened with the expert testimony is they put in something that's, that here's a claim chart and they cited specifications for the entire roller coaster and entire deposition transcripts as showing a limitation. So, we find there was no abusive discretion at excluding that expert report, then is there a need for a limitation by the limitation analysis? I don't think so, Your Honor. They have no proof of infringement, and we've never actually either by interrogatory or expert reports seen what their theory is for infringement. There are many instances where the judgment phase, not trial phase. Correct, and the judge struck their expert report, and there's no evidence left. There's no way to actually present this to a theory. It is because they didn't proper any alternative evidence of infringement, or you are doing that under DOE, you have to have an expert

. That doesn't mean that it couldn't be made to work, and it also doesn't mean it wasn't in an offer for sale. How can it be reduced to practice? Reduction of practice requires that it works with intended purpose. If the answer is that the patent's not enabled, that would be a different ground for imbalidity, and there's surely nothing in this patent that lets you build something over at the city of Denver that doesn't allow you to build the prototype that actually been built. But here, again, there had been a reduction to practice. They offered it for sale. It may be that they offered it in a way that was more difficult, but it had been reduced to practice, and it was offered for sale. If they offered, made a commercial offer for sale that were truly a commercial offer for sale, to build it on the moon, yeah, they probably can't do that, but it was still a commercial offer for sale of something that was ready for patenting. We know it was ready for patenting because we agreed it has been reduced to practice. There's actually a video times the end video of it. It didn't work adequately to satisfy these customers who were paying for development. That may be, but it's still been reduced to practice, and it's still been offered for sale. I just want to make sure I've got this right, because I'm looking at the appendix 1114, the Magistrate Judges Report, and recommendation, and the Magistrate Judges concludes that there was an offer for sale as it relates to United, prior to the critical date, and it says, but then it says the court is not convinced, however, that the defendant's happened to have a commercial offer for sale of the claim system with me to Denver prior to the court. I'm sorry, I may have switched that in my mind, Your Honor. Okay. But the materials that I'm referring to about manufacturing installation are referring to that. Okay. The question is to the procedure which I didn't notice, so there are a lot of motions for summary judgment. Do you also include infringement? I don't think the infringement is those motions. Yes, Your Honor. There is. What happened to that? So, two pieces on that. So, there's a motion to exclude the expert testimony, and what happened with the expert testimony is they put in something that's, that here's a claim chart and they cited specifications for the entire roller coaster and entire deposition transcripts as showing a limitation. So, we find there was no abusive discretion at excluding that expert report, then is there a need for a limitation by the limitation analysis? I don't think so, Your Honor. They have no proof of infringement, and we've never actually either by interrogatory or expert reports seen what their theory is for infringement. There are many instances where the judgment phase, not trial phase. Correct, and the judge struck their expert report, and there's no evidence left. There's no way to actually present this to a theory. It is because they didn't proper any alternative evidence of infringement, or you are doing that under DOE, you have to have an expert. It would be both of those. There was no coherent theory offered, which is why the expert report was struck. It was completely a conclusion. And in the absence of that, I mean, how could you, for the DOE, switching fins with magnets, whether they're on the cars or rails, but that changes everything. Changes the physical forces, it changes how you get electricity, the things that drive the state, it changes everything. But you wouldn't know that because they presented no evidence one way or another on it. With respect to the 125. Is this only in a equivalent claim? For the 125, that is correct. There's another patent in suit. The 237, the only ground for summary judgment, was non-impringement. That patent says that you have, let me just say it right. Well, one last thing on the exclusion. Defendant argues Rule 702, I think they're wrong, but Federal Rule 26 A2BI requires a complete statement of the opinion in the basis for it, and that's an alternative ground. I don't even think it's addressed in the briefing. For the 237, again, without handling, I think it's over. Even if Handler were considered, and even accepting, if we had a burden to show non-impringement, what the patent is about is adjusting these magnets as a function of the velocity of a fin passing through them. So as the thing goes through it, there's a breaking force, which causes a force on these. And so they have linkages that either raised and created a bigger overlap and a bigger, greater breaking force, or they don't. And you have less overlap, or they bring them in. The thing comes through it brings them in by pulling them on these linkages. It's undisputed that there is no such thing in the accused rights. The way the rights work is it looks at the velocity upstream on the roller coaster, and they say either break, and they break, or don't break, and they don't break. And that's it. There's no adjusting any amount of breaking as a result of this going through. So that means two limitations aren't met. One is it doesn't adjust the velocity as the fin passes between the right, because it doesn't have any idea what it is. It's either on or off by the time it gets there. And the second is there are no linkages enabling movement of the fin there, the fin there pass to change the space for a relationship

. It would be both of those. There was no coherent theory offered, which is why the expert report was struck. It was completely a conclusion. And in the absence of that, I mean, how could you, for the DOE, switching fins with magnets, whether they're on the cars or rails, but that changes everything. Changes the physical forces, it changes how you get electricity, the things that drive the state, it changes everything. But you wouldn't know that because they presented no evidence one way or another on it. With respect to the 125. Is this only in a equivalent claim? For the 125, that is correct. There's another patent in suit. The 237, the only ground for summary judgment, was non-impringement. That patent says that you have, let me just say it right. Well, one last thing on the exclusion. Defendant argues Rule 702, I think they're wrong, but Federal Rule 26 A2BI requires a complete statement of the opinion in the basis for it, and that's an alternative ground. I don't even think it's addressed in the briefing. For the 237, again, without handling, I think it's over. Even if Handler were considered, and even accepting, if we had a burden to show non-impringement, what the patent is about is adjusting these magnets as a function of the velocity of a fin passing through them. So as the thing goes through it, there's a breaking force, which causes a force on these. And so they have linkages that either raised and created a bigger overlap and a bigger, greater breaking force, or they don't. And you have less overlap, or they bring them in. The thing comes through it brings them in by pulling them on these linkages. It's undisputed that there is no such thing in the accused rights. The way the rights work is it looks at the velocity upstream on the roller coaster, and they say either break, and they break, or don't break, and they don't break. And that's it. There's no adjusting any amount of breaking as a result of this going through. So that means two limitations aren't met. One is it doesn't adjust the velocity as the fin passes between the right, because it doesn't have any idea what it is. It's either on or off by the time it gets there. And the second is there are no linkages enabling movement of the fin there, the fin there pass to change the space for a relationship. So the linkages, they're up or they're down, and they do not enable movement this way, or this way, as a result of the fin going through it. It's only as a result of what happens upstream. But all this stuff, the only thing that they said in a concludes very fashion in the extra report is in the briefing is it's affected as the fin shall pass through the array, but not ever opined as it actually does pass through the array. Thank you very much. So I think you've had a time very briefly or on a there is no evidence in the record on the 237th of some imaginary sensor upstream. The defendants believe relies on their expert report. You go read the expert report. He says there's break centers upstream. He doesn't say the drawing. He doesn't say the manual. He doesn't say the manual. You didn't seek to exclude that report. Your expert report got excluded. And if we find if there was no abusive discretion in that, you with the burden of proof don't have any evidence, do you? We do. Here's why. The defendants argue first. They don't say where the sensor is. If there is a sensor, it could logically it would be near the brain. Whose burden is this? On the infringement, it's us by a preponderance. And the defendants argue and this is why it's a horse race. The defendants say, well the plaintiffs are wrong on the relationship between the sensor and the brake because between the sensor and the brake the car could speed up or slow down. Suppose the car is going fast enough at a sensor, cause the sensor to say operate the brake. And then the car slows down between the sensor and the brake when it gets to the brake. It's going to be going too slow. But assume the opposite. I still don't understand. Where are you getting the evidence? There are arguments. You have the burden of proof

. So the linkages, they're up or they're down, and they do not enable movement this way, or this way, as a result of the fin going through it. It's only as a result of what happens upstream. But all this stuff, the only thing that they said in a concludes very fashion in the extra report is in the briefing is it's affected as the fin shall pass through the array, but not ever opined as it actually does pass through the array. Thank you very much. So I think you've had a time very briefly or on a there is no evidence in the record on the 237th of some imaginary sensor upstream. The defendants believe relies on their expert report. You go read the expert report. He says there's break centers upstream. He doesn't say the drawing. He doesn't say the manual. He doesn't say the manual. You didn't seek to exclude that report. Your expert report got excluded. And if we find if there was no abusive discretion in that, you with the burden of proof don't have any evidence, do you? We do. Here's why. The defendants argue first. They don't say where the sensor is. If there is a sensor, it could logically it would be near the brain. Whose burden is this? On the infringement, it's us by a preponderance. And the defendants argue and this is why it's a horse race. The defendants say, well the plaintiffs are wrong on the relationship between the sensor and the brake because between the sensor and the brake the car could speed up or slow down. Suppose the car is going fast enough at a sensor, cause the sensor to say operate the brake. And then the car slows down between the sensor and the brake when it gets to the brake. It's going to be going too slow. But assume the opposite. I still don't understand. Where are you getting the evidence? There are arguments. You have the burden of proof. You have zero evidence. You have no expert. It has been excluded. So other than cross examination of their experts, you don't have anything. Exactly. Exactly. Cross examination. What affirmative proof do you have? We cross exam in their expert and say, Dr. Kirtli, where's the sensor? What's the drawing that you're relying on? Well, they didn't even have the manual. But they're expert on if they don't want to. How are we going to call them? We can call them. We can call him. We can also call their witnesses. There's not a shred of evidence from any of their witnesses. There's not a single person cited who can point to a sensor. There's not a single document that's a defendants produced that shows a sensor. There's a body of evidence that we can rely upon that shows the complete abs of the evidence. What body of evidence can you rely upon to prove infringement? If you have no expert report. If we have no expert report, then we rely on calling the defendant's expert. We rely on the defendant's brake manuals and we rely on the defendant's documents describing their rights. None of which are cited as showing the sensor. Our expert should not have been excluded because the judge decided whether he was right or wrong. No, that's the effect of reporting. That's the report with the joke. It violated every rule of civil procedure. I disagree. I can't possibly be interviewed as a discretionary. I'm sorry, you're on our respectfully

. You have zero evidence. You have no expert. It has been excluded. So other than cross examination of their experts, you don't have anything. Exactly. Exactly. Cross examination. What affirmative proof do you have? We cross exam in their expert and say, Dr. Kirtli, where's the sensor? What's the drawing that you're relying on? Well, they didn't even have the manual. But they're expert on if they don't want to. How are we going to call them? We can call them. We can call him. We can also call their witnesses. There's not a shred of evidence from any of their witnesses. There's not a single person cited who can point to a sensor. There's not a single document that's a defendants produced that shows a sensor. There's a body of evidence that we can rely upon that shows the complete abs of the evidence. What body of evidence can you rely upon to prove infringement? If you have no expert report. If we have no expert report, then we rely on calling the defendant's expert. We rely on the defendant's brake manuals and we rely on the defendant's documents describing their rights. None of which are cited as showing the sensor. Our expert should not have been excluded because the judge decided whether he was right or wrong. No, that's the effect of reporting. That's the report with the joke. It violated every rule of civil procedure. I disagree. I can't possibly be interviewed as a discretionary. I'm sorry, you're on our respectfully. The screen time is almost out. The between argument. The defendant said the claim is ambiguous and that's the problem. That's why the error results in an undirectable claim because of the meaning of between. They say it could be between the wheels or between the rails. And that leads to two alternative constructions of the claim. They say between is limited to the region between the rails, not above and not below. The magistrate Judge Stein rejected that argument. Between means anywhere in the region between the wheels and the two doing rails. Error goal. There's no ambiguity on the present record. Mr. St. Dean made is the false argument. Mr. Chum was paid $15,000 and still says I don't claim my'm an inventor of that. The doctrine of equivalence, the only thing I'd like to point to is the thing that we have. Is their own break manual from their own break manufacturer. Electricity has nothing to do with it. There's no electrical circuits. That manual says you can reverse the position of the magon assemblies and the bins. You put the fin on the car or between the rails. The function way resolved is exactly the same. Thank you. Thank you. Mr. Huston, is the driver of the case taken in this submission?

I'm sorry, I'm too happy to have you. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. Okay. The next target is cases number 14, 17, the 76. Hierarch, so each time we play with the notice, we give you. and GNT conveyor the two plaintiffs in the court below. We have a number of summary judgment issues. The thing that unites all of them in my mind is that in every case there is substantial evidence favoring the plaintiffs' positions from which a jury, when that evidence is taken in the light most favorable to the plaintiffs, in which a jury can find and favor the plaintiffs on all of the issues with respect to each of the two patents in the case. The first patent is Claim 3, it is only one claim with a 125 patent. And that is the claim that says you have a car, in this case a roller coaster car, with wheels, right? Mr. Hosseling, why isn't the case the firmable simply for incorrect and venous terms? You have Mr. Chong, or Dr. Chong, who obviously contributes something, the only living client, inventor testified that Mr. Chong was the inventor of, was a co-inventor because of the double-sided motor. There is a provision in the statute that you know very well that can be availed of to correct the venous ship. It wasn't taken advantage of. So why doesn't that settle the issue? I mean, respectfully your honor, I disagree. Mr. Chong said that what he provided facing status, which I know the rule about all the claims of a patent with incorrect and venous ship, which you do have to keep in mind the facing status or inclaim one, not Claim 3. The defendants were some reason changed their position on appeal and said Mr. Chong is now an inventor of all the claims. It doesn't matter. No, I understand. I understand. I understand. He said it seems to matter to the defendant. But here's my point. Mr. Chong said, I came up with facing status. I don't claim I'm the inventor of it. It's in the books. It's old. The patent examiner in his examination of Claim 10, which issued his Claim 3 said facing status are old. The applicant did not disagree. It amended the claim. That's what I mean. I know most components of a machine are old. It's pointing them together. Correct. And the S case says that one can use the services, the aid, and the ideas of another. And that stems from the O'Reilly Supreme Court case, I think, and the case involving Samuel Morris on telegraphy to the effect that it doesn't matter what the source of the information is if it is prior heart, it doesn't matter whether it comes from a person or it comes from a book. How does this jive with your obvious misogynment? Your argument is that this is a combination of known elements, but it's the combination that's not obvious. And so, is anyone who suggested any portion of the combination an inventor in those circumstances? No. I don't think that's a law. I think if a person proposes the use of prior art as Mr. Hestid to the inventors of the catheter in that case, then he suggested prior art and the court decided that he was not an inventor relying on other precedents. Mr. Chancel said he's not even I agree that Mr. Stays said, yeah, he had a great idea and we used it. But Mr. Stays had an opinion that that was a great idea. Mr. Stays is not the judge of what is inventive and who is an inventor and who is not. And in any event, and then the definitive lie in the fact that Chanc stuck his knockout and stuck his neck out. And that's what Judge Stein relied on as well. Do what I say? So what? Hest stuck his neck out. What about the on sale bar? There was a deal here with United. It was partially implemented and money was passed. Okay. So why wasn't the court direct regarding an individuality for being on sale? Design. That's why. The word design means to plan and make decisions about to create plans to show how something will be made to make a plan or drawing to show the look function and working of a project before it is made. That is what the engineering services agreement in August of 1991 was all about. Imagine a jury contrasting that engineering services agreement which says words like, develop and design. Here's the words that pop up. Develop and design. Conceptual design work. Begin design. Fluid. One million man hours. Reasonable approximation of project cash flows for configurations active study and missing elements. There was design going on here. I'll tell you when we failed. There's a gap under path. There's a difference between designing a system for a customer based on an already established concept and doing trial and error to see if the concept would actually work. It's not trial and error to see whether a concept would actually work when you have an engineering services agreement for $250,000. It says, let's begin design. And during the course of that you tell your customer depending upon the configuration chosen, this system will cost you somewhere between $144 million and $195 million. And by the buy it will take us $1,9,000,000 man hours to design the system. There's two. Who's right and wrong? That's not what we're arguing here today. What we're arguing is what reasonable inferences could the jury draw from these documents. And the reasonable inference that the jury could draw from this pattern of conduct is that what happened in May of 1992 was a sale of a detailed specified system, a product for $195 million. What was going on in 1991 was a lot of back and forth about what this system, what this product might or might not include. All the cases that defendants like saccharine and the other cases involved contracts for the design was established. People knew what it was going to be, saccharine. The guy had the fuse for the air drop pump. The design was established yet a cost plus contract. You don't have an established configuration here. You don't have an established design here. Just for example, this system had to be mounted from the floor, from the ceiling, not from the floor because of the design loads involved at the terminal in Denver. You don't have an established. But the invention is not for the specific application in Denver. The invention that's ready for patenting is for a concept that you then adapt for the specific application. I respectfully disagree around it. I don't think you can sell a concept. I think you can sell a product. But I think you can sell an apparatus because that's what's claimed. What's claimed is not a concept. What's claimed is not a design. What's claimed is an apparatus. But you don't have to have the apparatus to want to entail box. And I'm saying that if you look at all the cases cited by both the parties here, there is not one case where you have a design that was so fluid, so incomplete, so speculative as you do here in a jury to draw the conclusion that it was not unsafe. For $250,000 for 0.17% of the prices being discussed in the later negotiations between the parties. I think a jury would say, yeah, there was a sale May 1992. But was there clear and convincing evidence of a sale in August 1991? No, I think there is no. I didn't just really come out on it. The tracks issue, I wanted to cover, I think it was covered. You can see that there's an error in claims, right? You do not. We did not. We never conceded error in claim three. That is in the state by the district court. That is in the state by the defendants. Our argument in the district court started with there's no error in claim three. Our argument was and has always been that the inventor, that the patent examiner and that the defendant's expert, Dr. Kirkley, all used the word tracks as a synonym for the race. Our argument is further that the inventor said, I understand what the claim means. That's the test of Nautilus. The examiner understood what the claim meant. Mr. Kirkley understands what the claim means. They all use that terminology. We said there is no error in claim three. That is a false lead. If so, you're saying that they meant to use the phrase tracks, even though it's preceded by the word set and tracks has never used previously in the claim. Well it is used previously in the claim. It says the preceding phrase of the claim is a track having two parallel rims. That's part of the reason why I say if you read this claim in context, you understand what they're talking about, especially if you look at the figures and the specification figures one and two. That was your saying it reads a track. We're saying you can say track. You can say that people skilled in the art reading the phrase opposed to the assembly is mounted between said tracks in the context of that claim in their knowledge. Know that that means between the rest. Let me address the point. There would be an error correction. No. No, this is. No, it isn't. Look, a naval aviator refers to an airplane as an airplane. An Air Force aviator refers to an airplane as a ship. An aviator would tell you that's crazy, but that's standard terminology in the Air Force. So your point is that it doesn't matter if they keep using them in the same claim. In other words, an aviator isn't going to come in and change his terminology midstream. I don't know what they're going to do. All I can say is the persons of reasonable skill in the art reading this claim had no problem understanding what it meant. We know that because they use tracks as an alternative term for rails. I think the examiner set up parallel track configuration. Mr. Kirkley said, where is his second track? There we go. Mr. Kirkley referred to a prior art as having a pair of tracks in a car that rolled on tracks. What I'm saying is this that a jury can reasonably draw the conclusion that persons of skill in the art understand the claim because persons of skill in the art use tracks as another term for rails. Would you go back to the first point before we interrupted you on question of obvious instance? I'm the question of obvious is, you've got Miller as the base reference. You combine it with either Dematai which is a screened or with magnets or you combine it with an older VAE that's a predecessor to TNT technology with flat magnets. Miller says, I want to do two things. I want to be able to slow and bring it hard to a stop and he uses a friction break at claims in order to do that. Dr. Kirkley said in the district court, well, anybody would know, it doesn't give much reason. He said, anybody would know that you could take out the friction break and substitute for it a contact with a streak. That's what the invention is. Contactness because the fit of the magnets are never supposed to touch. The problem with that is magnetic brakes and the defendant's testimony to grease cannot stop vehicles. They can only slow it. The creation of the force depends upon relative motion. But is there a difference because of the weight it's being used by these defendants as compared with doing it on the level of an airport? I think it is because if you take Miller and put in a contactless brake, Miller cannot both slow a car and stop a car. I read Miller is having two objectives coupled with the conjunction and he wants to have both of them. It's not a work, it's in. That's meaning slow car, stop a car. If you put a contactless brake and Miller, it can't stop a car anymore. But I'm thinking that if in fact, if you were to get to the question of infringement, you might find your claims construed in a sufficiently narrow way that this issue isn't raised. I suppose that's considerable. If we had our claims and trucks and I were doing more claim destruction. In any case, I say you damage the goals of Miller when you take away its ability to stop a car. And the defendant's on a field come up with a new argument. They say, well, he was both. Well, that's not what the expert says. The expert says substitute contactless for friction. The defendant's now saying, appeal, and I think that's way, let's use them both. Why would anyone make that combination? What's the reasoning supporting the combination? There isn't any. And we do have a bit of evidence about secondary considerations. And Judge Stein thought we were talking about claim one. And she said, well, you said, Chung's contribution was old. That's so good. So we're talking about claim three. And one of the CEOs for the defendant said, the mega-closter comes about because of two things. One of them is magnetic rates. You said, they're good. They're good. So I think that deals with the obvious issues. Well, let's say the rest of your time for revitalization. All right. Thank you. Thank you. Thank you, Mr. Longry. Thank you, Your Honor. May I please the court, Matt Lawyer, of Foley and Larger. On behalf of the defendant of Pellies, which is about 18 or so amusement ride companies, like SIX Flag, Bush Gardens, amusement parks. I guess one I start with indefinite and that's, which of course, is a question of law. Perhaps underlying facts. It's not entirely always clear to me, but certainly, a question of law. I don't think the legal question, whether there's there is. That's your best in validity argument. I would say that they're all solid for a variety of reasons. And I think Your Honor is correct. You only need one. And if there's one you'd like to hear first, I don't judge a lawyer asked about a I'm not a financial person, I have to address it. Don't we know what claim means? Between said tracks is only one track consisting as the early apportionment of the claim says, having two parallel rails. So, doesn't that mean between said rails? It could mean that. So it's not indefinite. It could also mean something else to your owner. It could also mean between wheels. That was a stretch, don't you think? I don't think so at all for a couple of reasons, Your Honor. First of all, it's nowhere else than any of the claims. The other track and the rails are... No, the other claims are said rails specifically. But here's... I'm sorry. And they don't say between the wheels. No, but if you look in the specification on page 12 of our reef, there's a clip of the specification, and it talks about the importance of having them located between the wheels as opposed to the tracks, which is why either could be substituted and why as Judge Fine noted in her opinion, the 3v6 representative of the plaintiffs admitted, yeah, it could be wheels. Of all the people and the experts and the inventors who testified, they said that when you say track and lean rails. Not true, Your Honor. In fact, the only... Welcome to that lawyer attorney argument that you can read his wheels. Not at all, Your Honor. Professor Curley, Olpine... I'm sorry? You had a witness to... Yes, Your Honor. The expert for the defendant said that it could be wheels or tracks and you can't tell. And the expert for the plaintiffs was silent. Okay. You couldn't tell the difference between wheels or rails. He'll find that it was indefinite because it could be wheels or rails. And in fact, Judge Fine... This is summary of Judge Fine, right? Well, it is, but there was... You don't have summary of Judge Fine. It is, Your Honor, but there was... I'm not conflicting. I just read a opinion. There was no conflicting expert opinion. Plaintiffs experts did not have a pint on this. This case is... I think you should move on to another topic. Okay. If I may or not, though, I would just note that... Yes. This argument about substituting wheels or that the scope is different was not made below. On Appendix 11,095, it's just a client's opinion where he says, plaintiffs do not contend. And so all of this is a new argument that we also believe this way. If we look, Your Honor, at Inventorship, that also was a question of law, potentially, with underlying facts. But what does that say that the... It's decided that the Inventorship was wrong. Well, it can't have just be corrected. They have... That's actually explained. They've weighed that argument as well. We said it can't be corrected under Section 256. They didn't respond to it for a variety of reasons. He didn't have an obligation to assign. He was a contractor, so he didn't have an obligation to assign it to the plaintiff. I'm not sure if it's in the record, but we have actually... That's the question of ownership, not inventorship. That's a correction under... But in addition... You're just speculating about why they didn't correct it. But the bottom line is they didn't seek to correct it. That is a correction under... I'm not sure if it's in the record, but I believe that at least certain of the plaintiffs have acquired Mr. Jones' rights, no ongoing payment obligations of any kind. If it were me... Or defend. Defendants, thank you, Your Honor. I'm a spoke. So if they were to correct it, that's... I have the right to answer the question. The argument that Chung really didn't add anything. Maybe he said, I didn't invent this. What he said is he didn't invent double-staters. What he did also say is if we go back and it's undisputed what happened here. They had a one-sided version they were using for circulating baggage. It was overheating. They didn't know what to do. Mr. Chung said in this setting of the claim, put in the double-sided stater. So no, he didn't invent double-sided staters. He put it in to this setting. And it's not disputed. Inventor stays, the only living event are left. Confirmed all of this. He said, it was overheating. Chung said, do this. We're like, you're crazy. I'm paraphrasing that's not actually what. Although I think crazy might be one of the words that was used. And nobody believed it. And he did the test and showed up of work. And that led to the two-sided staters. And yes, it's correct that they're old. Yes, it's correct. There is no invention here, actually. We think it's obvious as the judge found for claim three. But the extent that there is an invention here. It's probably explained how could he be an inventor. You should be... It's interesting. I've never seen a circumstance. Well, I suppose claim one is presumed valid. We haven't detected. I would suggest it probably is obvious. It's not a certain thing. It's probably explained how could he be an inventor. The only way he's not an inventor is if there is no patent. And there is one is finissurded. And if it's a holding in the alternative, or like I said, I don't think it needs to be reached. I've never seen a determination that a particular claim was unpathentable. Certainly, if all you're doing is what has to, has to. They said they had the whole invention. They said, what material can we use for this particular thing? And this is what it needs to be like. And the salesman said, oh, I've got a material like that. This is different. They said, we've got this problem. It's overheating. What do we do? And he said, what's it to claim? Two-sided stators, which by the way leads to the two-sided magnet to anyway. There was testimony about an internship from the defendant's expert on an internship. There was none from the plaintiff's expert. It's not that they didn't have an expert. It's that he did not opine on a number of things, including an internship, indefiniteness, and the obviousness theories that caused the district court to grant some adjustment. So what we have here is attorney argument, to be sure. But that's all we have from the plaintiff's side. Including for an internship, I mean, stays doesn't actually say, Chung didn't contribute anything. He shouldn't be an inventor. And stays is in fact a paid consultant for the plaintiffs. Should I move on to Ansel Bar? Oh, your honors. Yes. For Ansel Bar, an offer for sales also a question of law, with potentially underlying facts. And interestingly enough, we have lots of stuff that shows, well, first of all, I want to be clear. This was reduced to practice before the offer for sale, like nine months, before the critical date, and three months before the offer for sale. It was actually not contested. It's in the materials here. So there's no experimental use exception. We don't know if it works kind of thing. The invention was reduced to practice. What was offered for sale? An idea or something within defined by claim three with all of its claim limitations? It was a specific system to be installed at the city of Denver, meeting all of the claim limitations, including specific reference to the double-sided breaks of claim three. Was it ready for patenting? Yes, it had been reduced to practice, which by definition would mean it's ready for patent. And that has been conceded. And we also have expert testimony from Professor Fergley on this particular issue, not rebutted by plaintiffs. You hear me keep saying that. There were things that were rebutted by their expert, and we didn't move for some rejudgment by and large on those. We picked the ones where they had presented no evidence at all. And here, interestingly enough, this is the plaintiff. So which is the sale you've reliant on? The one to the city of Denver, or the one to you knighted? It's city of the Denver. And I think it might be united in the city of Denver. And then there's a later offer for sale that we're not relying on. We had argued it, and the court found a fact question as to the timing of it. But city of Denver, there's no question that before the critical date, they had not only entered into a contract, it's answer your question to build something. They had spent $246,000 in the development contract. We're told. And the development cost was just minor percentage, one or two percent. So it appears that it was not, in fact, finally perfected. So how long we know at what stage the problems resolved, such that it's appropriate to enter into the past. No, the contract was to install a system which required that they do some design work. That's not uncommon, but they were surely. What does that have to do with it? Actually, nothing, because they were commercializing the invention. They had the double-sided breaks. They showed them to their client. The client said, okay, we want that. It actually called for the double-sided breaks. Yes, it was an hour's-leaf basis, but it wasn't a million hours of design work. It included manufacturing installation, the actual documents that are cited in here talk about mechanical installation being done in advance. That's not designed or below. So, yeah, so, of course, any time you're delivering a product, there may be some additional things that need to be done. The question is, is it a part of the claim to mention the answer here is indisputably a call for the double-sided magnetic breaks, which they had actually. There's certainly a work, apparently, it didn't. That doesn't mean that it couldn't be made to work, and it also doesn't mean it wasn't in an offer for sale. How can it be reduced to practice? Reduction of practice requires that it works with intended purpose. If the answer is that the patent's not enabled, that would be a different ground for imbalidity, and there's surely nothing in this patent that lets you build something over at the city of Denver that doesn't allow you to build the prototype that actually been built. But here, again, there had been a reduction to practice. They offered it for sale. It may be that they offered it in a way that was more difficult, but it had been reduced to practice, and it was offered for sale. If they offered, made a commercial offer for sale that were truly a commercial offer for sale, to build it on the moon, yeah, they probably can't do that, but it was still a commercial offer for sale of something that was ready for patenting. We know it was ready for patenting because we agreed it has been reduced to practice. There's actually a video times the end video of it. It didn't work adequately to satisfy these customers who were paying for development. That may be, but it's still been reduced to practice, and it's still been offered for sale. I just want to make sure I've got this right, because I'm looking at the appendix 1114, the Magistrate Judges Report, and recommendation, and the Magistrate Judges concludes that there was an offer for sale as it relates to United, prior to the critical date, and it says, but then it says the court is not convinced, however, that the defendant's happened to have a commercial offer for sale of the claim system with me to Denver prior to the court. I'm sorry, I may have switched that in my mind, Your Honor. Okay. But the materials that I'm referring to about manufacturing installation are referring to that. Okay. The question is to the procedure which I didn't notice, so there are a lot of motions for summary judgment. Do you also include infringement? I don't think the infringement is those motions. Yes, Your Honor. There is. What happened to that? So, two pieces on that. So, there's a motion to exclude the expert testimony, and what happened with the expert testimony is they put in something that's, that here's a claim chart and they cited specifications for the entire roller coaster and entire deposition transcripts as showing a limitation. So, we find there was no abusive discretion at excluding that expert report, then is there a need for a limitation by the limitation analysis? I don't think so, Your Honor. They have no proof of infringement, and we've never actually either by interrogatory or expert reports seen what their theory is for infringement. There are many instances where the judgment phase, not trial phase. Correct, and the judge struck their expert report, and there's no evidence left. There's no way to actually present this to a theory. It is because they didn't proper any alternative evidence of infringement, or you are doing that under DOE, you have to have an expert. It would be both of those. There was no coherent theory offered, which is why the expert report was struck. It was completely a conclusion. And in the absence of that, I mean, how could you, for the DOE, switching fins with magnets, whether they're on the cars or rails, but that changes everything. Changes the physical forces, it changes how you get electricity, the things that drive the state, it changes everything. But you wouldn't know that because they presented no evidence one way or another on it. With respect to the 125. Is this only in a equivalent claim? For the 125, that is correct. There's another patent in suit. The 237, the only ground for summary judgment, was non-impringement. That patent says that you have, let me just say it right. Well, one last thing on the exclusion. Defendant argues Rule 702, I think they're wrong, but Federal Rule 26 A2BI requires a complete statement of the opinion in the basis for it, and that's an alternative ground. I don't even think it's addressed in the briefing. For the 237, again, without handling, I think it's over. Even if Handler were considered, and even accepting, if we had a burden to show non-impringement, what the patent is about is adjusting these magnets as a function of the velocity of a fin passing through them. So as the thing goes through it, there's a breaking force, which causes a force on these. And so they have linkages that either raised and created a bigger overlap and a bigger, greater breaking force, or they don't. And you have less overlap, or they bring them in. The thing comes through it brings them in by pulling them on these linkages. It's undisputed that there is no such thing in the accused rights. The way the rights work is it looks at the velocity upstream on the roller coaster, and they say either break, and they break, or don't break, and they don't break. And that's it. There's no adjusting any amount of breaking as a result of this going through. So that means two limitations aren't met. One is it doesn't adjust the velocity as the fin passes between the right, because it doesn't have any idea what it is. It's either on or off by the time it gets there. And the second is there are no linkages enabling movement of the fin there, the fin there pass to change the space for a relationship. So the linkages, they're up or they're down, and they do not enable movement this way, or this way, as a result of the fin going through it. It's only as a result of what happens upstream. But all this stuff, the only thing that they said in a concludes very fashion in the extra report is in the briefing is it's affected as the fin shall pass through the array, but not ever opined as it actually does pass through the array. Thank you very much. So I think you've had a time very briefly or on a there is no evidence in the record on the 237th of some imaginary sensor upstream. The defendants believe relies on their expert report. You go read the expert report. He says there's break centers upstream. He doesn't say the drawing. He doesn't say the manual. He doesn't say the manual. You didn't seek to exclude that report. Your expert report got excluded. And if we find if there was no abusive discretion in that, you with the burden of proof don't have any evidence, do you? We do. Here's why. The defendants argue first. They don't say where the sensor is. If there is a sensor, it could logically it would be near the brain. Whose burden is this? On the infringement, it's us by a preponderance. And the defendants argue and this is why it's a horse race. The defendants say, well the plaintiffs are wrong on the relationship between the sensor and the brake because between the sensor and the brake the car could speed up or slow down. Suppose the car is going fast enough at a sensor, cause the sensor to say operate the brake. And then the car slows down between the sensor and the brake when it gets to the brake. It's going to be going too slow. But assume the opposite. I still don't understand. Where are you getting the evidence? There are arguments. You have the burden of proof. You have zero evidence. You have no expert. It has been excluded. So other than cross examination of their experts, you don't have anything. Exactly. Exactly. Cross examination. What affirmative proof do you have? We cross exam in their expert and say, Dr. Kirtli, where's the sensor? What's the drawing that you're relying on? Well, they didn't even have the manual. But they're expert on if they don't want to. How are we going to call them? We can call them. We can call him. We can also call their witnesses. There's not a shred of evidence from any of their witnesses. There's not a single person cited who can point to a sensor. There's not a single document that's a defendants produced that shows a sensor. There's a body of evidence that we can rely upon that shows the complete abs of the evidence. What body of evidence can you rely upon to prove infringement? If you have no expert report. If we have no expert report, then we rely on calling the defendant's expert. We rely on the defendant's brake manuals and we rely on the defendant's documents describing their rights. None of which are cited as showing the sensor. Our expert should not have been excluded because the judge decided whether he was right or wrong. No, that's the effect of reporting. That's the report with the joke. It violated every rule of civil procedure. I disagree. I can't possibly be interviewed as a discretionary. I'm sorry, you're on our respectfully. The screen time is almost out. The between argument. The defendant said the claim is ambiguous and that's the problem. That's why the error results in an undirectable claim because of the meaning of between. They say it could be between the wheels or between the rails. And that leads to two alternative constructions of the claim. They say between is limited to the region between the rails, not above and not below. The magistrate Judge Stein rejected that argument. Between means anywhere in the region between the wheels and the two doing rails. Error goal. There's no ambiguity on the present record. Mr. St. Dean made is the false argument. Mr. Chum was paid $15,000 and still says I don't claim my'm an inventor of that. The doctrine of equivalence, the only thing I'd like to point to is the thing that we have. Is their own break manual from their own break manufacturer. Electricity has nothing to do with it. There's no electrical circuits. That manual says you can reverse the position of the magon assemblies and the bins. You put the fin on the car or between the rails. The function way resolved is exactly the same. Thank you. Thank you. Mr. Huston, is the driver of the case taken in this submission