case with me today is mr grover you have before you today a summary an appeal from a summary judgment of non infringement and several appealable orders from the central district of california i first want to address three false assumptions of fact that went into the district court in june two thousand and nine summary judgment order because they relate and impose certain the criteria over the entire case particularly the claim from structural issues so i want to address those false assumptions of facts before we get to that claim construction issues first of all you'll notice that the district court the assumptions of fact were three first the district court assume that all thirty eight of the claims of mr grover's original patent included the words payload platform in the us if the construction was such there was not infringement all thirty eight claims would be not infringed second oh snap point just so clean it up in the district court did was we long was it not on the stipulation or his understanding that the parties had agreed that if a certain claim construction arose with respect to play placate platform that would govern the whole question in french you're wrong about that your honor and that was the third point i was third false assumption let's get to their right are i'm looking at the claims and i'm having trouble finding any that don't have his own platform in the well that would be on there maybe a few dependent claims here  package the on the payroll a low platform as a method claims and yes get back to your main point stick with that yes all right the main point responding just throw in the transcript of the proceedings at the virtually every claim except for maybe five or six require a most platform so that was the basis of or that was a statement made by mr warwick and mr lawson's who was mr gro are hanging out there that would certainly be a result that would be justified by what we just set now turning over to claim thirty eight which is a method claim that claim does not require the payload platform to on or excuse me does not require the sensor package the second sensor package to be on the payroll platform so that claim also would be lumped in this group that really started to the table a platform that's your argument isn't it you that is one of the epeat it's very very clear the m p p section six zero eight zero two pages six hundred six hundred dash fifteen and revision seven which is the two thousand and eight revision there are two pages of standard emphasis the chair making is that we usually sort of give the benefit of the doubt to the district court you may or may not be right that the district court this is why the district court got it wrong but my question would be did you explain that adequately to the district court in terms of the argument about lines i mean is there something you can point to in the record that would show us that you made this argument in the district kordic nordic if not it's kind of hard for us to pick apart sort of the details of this analysis right well i'm sorry your honor i wasn't representing mr grover at the district court but i believe there are sufficient sufficient justification in the record on appeal i would to answer your question though i would direct your attention  to the patent it's well there are several places in the patent itself which have language that in addition to the drawings indicate quite clearly that the payload platform is not limited to a small part of the of the surface to which the camera is attached in that that language would be found if you would turn to referring to colonise or i'm referring to column one approximately lines sixty five through sixty seven that can be found several places in the record the place i'm looking at is the appendix page one forty eight there the stabilized platform is simply referred to as one holding sensing devices there is no requirement that the sensing device be located it's only on a certain part of the top surface the second let me interrupt you just because the time is out because so far we haven't really gotten to what maybe i misunderstood but i thought was really the nub of your argument with respect to claim construction and that is the district court reliance on the examiners statement and the question about whether or not mr grover excepted that it whenever i understood that to be kind of the heart of the complaint you have with the district court's claim construction i'm wrong about that if you're not wrong  wanted to address that briefly if you would i will address that the district court in correctly found that its claim construction was largely dependent on or shaped by the reexamination proceedings this statement came in a separate paragraph out of the context of the rest of the of the order it was hit the district court simply agreeing with mr weight statement and the falseness of that statement is pretty clearly reviewed by what revealed by what actually happened in the reexamination of the thirty eight original claims fund five of those were confirmed or scuse me five were amended numerous claims thirty three claims were confirmed as is including the single claim that the district court used to focus its opinion on claim one it had no changes to it and the arguments made by mr grover's attorney during the  the welsh reference however and i prior art it seemed to me my understanding correct me if i'm wrong was that there was the examiner relied heavily on his construction of the welsh prior art as having that number six payload platform and your client whose interpretation may have been somewhat different at least didn't object to that and it was on that basis which you are now contending is incorrect that's a question that i think can be answered by yes or no with the permission of mr grover answer that one question mishal position but the point is that the examiner meet those those comments early on three of reexamination and after argument withdrew those and so those initial comments did not apply to those claims that were read or that were confirmed and the point here is so the district court was incorrect because as i read the district court he relied heavily on those those observations and those conclusions by the examiner so are you telling us that though that was illegitimate because the examiner had withdrawn those contentions at some point the process know what the answer that question is that the district respect to the axle now and not my only quite question goes to whether or not the district court just made right up on his own or whether indeed he was me lying on that finding and that conclusion by the examiner am i wrong that he was relying he wasn't making this up on the fly he was relying he was accepting and adopting the examiner's conclusions in that regard in a sense he said he was relying on what an examiner said early on that once the the reason this got a patent is because it had a second sensor attached to the platform is what you're telling us right that's one of the reasons yet you're telling us that if the payload platform is perceived as seeing simply a two dimensional flat surface to which you attached the camera you do not have then the point of novelty the attachment to the second sensor for well this sort of fits second sensor package merely needs to be attached to the payload platform structure because in the rober invention in device sensor that's the second in the second payload platform of the second sensor package measures deviations from horizontal so it doesn't make any difference where on this payload platform that sensor is positioned it can be positioned on the top which is the farthest away from the its absolute rotation in which case if it moves it moves a greater number of inches then it would move if it was positioned closer to the axle of rotation would you take one second it's unusual that we get discovery protests here what was your concern over the discovery proceeds of the discovery proceedings were that mr war with you had had blocked discovery and that sanctions are appropriate in this case in a reversal or a remain and to reopen discovery would be appropriate appeal can you could you start just briefly though in addressing the point that the other side started with that first with just even if we were to affirm the district as i understand it even if we're to affirm the district court on claim construction there's still all of these other claims out there that they are free to pursue and that there is no way for of their right to do so these problem that with that argument is that the claims they've never articulated what those are before the court they've never stated yes even if we interpret the court's r kind of make them pick and choose the wrong way they lessen generally in the complaint they simply said they infringe and so once the court said i believe in the court's opinion the court said i believe that it's all based basically rules comes down to payload platform that's the way i interpret it do you guys interpret it that way and i said well other than maybe four or five in the for five or the incidental claims that don't specifically include the term payload platform but they need the papal platform above you know to go down and further get to the elements that are that in order to have infringement you have to infringe every claim in a patent not just want you know you're really going to have a transcript here that says to the kind of the contrary judge asked you outright whether or not all the claims in the pattern needed to be infringed in order to have for him to find infringement you said yes i don't believe i don't know what section was referring to specifically iran or however the section maybe it was in claim one there's multiple sections of claim one and into b have a violation of claim one you must have all the separate parts of claim want to during that hearing since we  below platform because the district judge does say in his order that it's nothing more than a horizontal surface he goes on to say it does not include the support structure to that horizontal surface which of course figures two and three it clearly does contain the support structure beyond a two dimensional horizontal surface and the difference here is that mr grover was a patent reexamination proceeding before the p t o and during last week do you acknowledge then the chief judge is question is correct do you acknowledge the figures two and three of the patent as originally filed absolutely explicitly disclose a payload platform that is three dimensional your three figure three i would like you to identify for me what in figure three is the payload platform camera platform in the payload platform are words used interchangeably in this pattern correct in the six that stupid right so you're saying figure three does not identify a camera platform look let me help you i'll get you right to the point look on column five lines thirty is describing figure three says the control system also receives data from sensor package be located on the camera platform so you understand as i do that this pattern explicitly discloses sensor package b is located on the camera platform right now let's look at figure three sensor b camera platform is number twenty to keep that money number twenty two points only that top flat surface under the district court's construction that would be the only thing that's the camera platform a hub at the spec just told us the answer b is located only on the camera platform and where a sensor be in this picture below the risers or in the second level of what is clearly a three dimensional structure the space for the housing for the camera is twenty two and it also continues down to twenty three but the fact is a horizontal flat surface conforms to the court's interpretation yes except that the specification requires that sensor be in this picture is located on the camera platform is sensor be located on the top flat part the no no no it's not it's located on the bottom of the three dimensional structure so how could we interpret this pattern any differently than to say sensor b is located  the camera platform which now clearly and explicitly includes more than just that top plate surface but the two flat surfaces referencing a parallel to one another and when they're parallel to one another they move with one another what mr grover's interpret device has a patent located within the legs of the gimbal structure and that's different because welch head on so we're not talking about infringement all we're trying to figure out so i don't care about the maaco device what we're trying to figure out is what this claim term means and we don't look to the maaco device to figure out what it means we look to the clear language of the pattern in the specification and so i would like an answer from you does this sentence indicate that sensor b is located on the camera platform which we both know it does consensus expressly and sensor b is clearly not on that top flat surface i believe that the parallel flat surface is distinguishable in this in this configuration but it is that parallel flat surface part of the payload platform as defined by the court yes but two the sensor is located on the paper form right but it's also located on the payload platform and figure three and figure three shows the payload platform is something other than a singular flat surface of two dimensional nature well your honor the figure three is a parallel it's horizontal flat surface it's just a deeper one instead of being a dozen that way but doesn't that depth imply a third dimension no they move no weight ok so you've got with and you've got length now we just added depth how many dimensions does that total if you have a flat surface a metal flat surface is a court defined the term and you place it on and it's one inch in it's place here or if it's five inches in placed here it's going to be the same difference in that particular configuration it's just simply a bigger platform  the distinguishing factor here that the court relied on was not simply the language in the patent but the narrowing of the language in the patent before the p t o and i think that's what the court needs to focus because that's where the trial court focused the court found that when you looked at the welsh patent we made the same argument before in the reexamination proceedings we said the groper device is exactly like the welsh device and the sensors located in the welsh device are on the gimble structure and therefore it isn't to subpoena by the prior art and the first patent examiner agreed and dismissed twenty one court went on to look at the p t o and the p t o when they examined it he says i can't tell under welts where they're located but in the description of welch it's that they're located quote mounted between said stabilize structure and the base structure on the p t o said wolf it's between the platform in the base it's not on the base and therefore the six six two patton has a distinguishing feature for when the examiner allow old the patent the allowance has figure one the quote quote from the appendix it to twenty three which is the examiner's allowance and where he has now determined figure one of wealth shows that sensor twenty seven fixed to the frame structure of which platform structure eighteen rocks within and sensor twenty seven is fixed to the base structure fourteen rather than platform structure eighteen  neither the pet owners argument or the requesters argument is found persuasive because figure one of welsh does not clearly show whether century twenty seven and twenty nine are fixed to the pillow form or not and it went on then to say but what does the th the examiner says being mounted between the platform in the base thus welsh does not teach this is the examiners holding thus well it's just not teach the second center package fixed to the payload platform that's how they overcame the rejection limited to asserting a claim against somebody who has the second sensor fixed to the payload platform i don't understand them to be disagreeing with my statement i don't understand them to have represented anything different to the district court so they're ask court to rule that the structure goes beyond the horizontal metal plate no they're asked yes they're asking the district court to say it has to be fixed to the payload platform you and they just disagree over what the payload platform is that doesn't mean that they made some sort of disclaimer in here well shows sensors located on the gimble structure and the only reason they got around welsh was they said ours are on the gamma structure it's on the payload platform the trip the p t o so that's fine it's difference distinguishable but now they're saying no no we want to make a head is just like well to the sensors located in the make a header on the gimble structure and that's why the court said what it's just like welsh no infringement you got around well look at figure three with us where's the gimbal structure the gimbal structures everything between it's not a defined anything except the platform because of a universal joint and we're going to be back here on gimbal structures trying to define them to the what the court did i think was very smart because what it did was it backed into the definition by so by by goble own statements to the p t o and by doing that he said under welch well specifically states that the sensor is located here or on the gimble structure and it said that because it said the sensors are located  lot of the deposition testimony for attorneys eyes only of course depositions have to go to the other side's experts as well did they get to see them yes your honor you know in the briefs they talk about you know being explicit or grover being excluded from the from the proceedings his expert his lawyer were in the deposition the entire time and were present the difference that mr grover himself is the primary competitor of my client and to show the inner workings of your device to your primary competitor is not required under the law and so we have excluded mr grover from the courtroom but his lawyer from the deposition testimony of the expert as to the inner workings of the make ahead because the make of it does not have a patent to protect it the make of it is a trade secret and they they seal it up and they put paint around it they make sure nobody can get in there to look at the at the u s and according to the protective order and then everything's available within the confines of the loss correct and his lawyers had full access the entire time the only difference is mr grover wants to represent himself pro se and so he's angered that he's not able to write his brief because he's not he personally doesn't have access to all the same information that his lawyers do and therefore he has to pay a lawyer to examine the him that the information and that's not a discovery abuse you know he is a the remainder my time i'll just go ahead and address the other additional argument that we make which is well could i just ask you before that just to clean up if we were just hypothetically tureen first to disagree with you on the claim construction where does that leave us on all the other issues obviously the rule eleven probably backs away but what about the discovery and so forth you assume that if we let reverse something construction discovery would be we open the gate for everything potentially potentially i and other states the players have yet to articulate how assuming the court's interpretation let's say reversed on that then we would go back in address those issues that remain if at all i mean the interesting part is there's nothing else we would have to cover on the subpoena with respect to discover essentially if this court reversed the court's interpretation of the will platform in summary judge we have to go back and essentially start the seven year lit yes the the final argument is is that one quick question on the personal jurisdiction the tradeshow happened in california right correct do we have any problem then in terms of jurisdiction since the major facts of infringement are growing in the jurisdiction where the case was brought in clearly the company that the individuals who are present at the trade show has been a party to this case and did not challenge personal jurisdiction we're talking about the individual people being sued in their individual capacity for conduct in california and they were not in california on their personal conduct at all it was only as officers of the company at a trade so where they represented the company so therefore there was no contacts in our personal individual capacities with the state of california just by long understood the final point i'd like to make is regarding our the conflict in the timing of ruhle robur had access or attempted to achieve access to the inner workings of the make away he would have seen prior to filing its lawsuit where the sensors were located he would have seen that the make ahead doesn't have to censor packages it has three he would have seen that they located on the gimble structure not on the pedal platform however this lawsuit was filed was a simple statement that they make ahead infringes the patent and there was no analysis by an attorney separate from mr grover who is not  done prior to the filing of the case and what this is led to is an allegation that all of thirty six of the thirty eight claims were alleged to be infringed without ever looking at the inner workings of the device this is the equivalent of apple suing microsoft or m because they have two laptops that look similar on the outside this a complicated device with electronic devices that are minuscule the only way to determine whether it infringes is to look at the inner workings of the device the statements throughout the brief are that we did enough  going to a trade show and seeing the device operate at a distance we were able to walk up really close to it and we were asked some questions the questions they asked were not of the electronics engineers and experts necessary to do to design the equipment they were simply the people who worked at the company who talk generally about yes it maintains level this is a direct violation to this court's dicta or ducked to a directive in the juden case and in view engineering which specifically says before you file a patent infringement lawsuit which on average cost a million dollars to defend before you file that you should make sure that they infringe and as a lawyer must sit down and go through the closest had a curiosity if if it turns out  do a ruhleben motion after summary judgment however the well played complaint rule states that if they have a meritorious claim it doesn't matter whether they did any precision best occasion at all and so you have this this question of a direct conflict one says you can't do it after some adjustment and the other one says if you do it before some adjustments it's premature i think that we should we have a conflict thank you thousand and four june two thousand and four over eight hundred two thousand and four the date the complaint was filed over nineteenth the day october nineteenth two thousand and four of the date at which he's conversing back and forth mr krieger and mr grover during that four month period generate approximately fifteen hours of build the time on analysis on whether there is an infringement or not on october they conclude that there is an infringement mr krieger a licensed attorney concludes that the complaint is not prepared it's filed an october eighteenth the day before the the awards ceremony with the view that to be absolutely positively certain they are not going to serve the complaint until after they go to the academy award inspection event and take one last look at it and you'll see in these pictures here's mr klein jr one of the individual hoped for defendants and on the left mr krieger then mister grover's attorney who are discussing not with some employee but one of the principals mr klein about the maaco head which is shown in the right so the complaint was served then on the following day i believe the twentieth so the point is there was sufficient as there was as a very clear and deliberate analysis made the attorney relied on statements made by mr grover who had previously conducted a very thorough evaluation so i think that with will easily withstand any rule eleven problem directing my tent or your attention to the other questions there was the original june two thousand and nine order that was a sue a sponsor the order granting the an infringement the plaintiffs then wanted to have it reconsidered and out of that came the judge's complaint or or thought that that it supposedly in its reply brief the plaintiffs were supposed to then justify infringement well the reason they didn't provide any on a summary judgment motion of infringement and didn't lay out all the details for a summary judgment motion was because of mr warner which is blocking of deposition of discovery and at that stage all they wanted to do was to overturn the judge's su v ruling of non infringement this is what was not their duty was they were not a notice to and they did not intend to and the attorney lawson clearly made that clearly show that his objective was not to prove infringement there they were just trying to defend themselves against the suicide on t v ruling of non infringement no it to answer of or to respond to chief judge raters question about a gimbal there is some sloppy language there if you go to the essence of this gimbal structure it's there are three structures and they're connected there is a base there is the true gimbal structure which is in the middle the and then there is the third that's attached to it and it's a single piece the way that you tell the pieces and how the op rate is the base has a single axis the center part is a structure that has two axes one of which is attached to the base in the other which is attached to the so called pla the payload platform or the stabilized structure in the groper invention he puts a level sensor on the top one and a motion sensor on the base and he takes those signals and then he generates signals to motors that are that control the two axes so if the base pitches goes forward or goes backward that's a pitch then the motor that controls the actual that deals with pitch rapidly makes an same amount but opposite direction rotation of the top surface so that if the base pitches the the stabilized platform will go in the opposite direction so it can maintain its horizontal position similarly the other axis is the one that is perpendicular measures roll so instead of going up and down back and forth roll is that kind of emotion and that sensor or that part of the sensor on top of the