Better Bags, Inc. v. Redi Bag USA LLC

Filing 100

MEMORANDUM AND ORDER DENYING 79 MOTION for Directed Verdict, 72 MOTION for Directed Verdict, 73 MOTION for New Trial.(Signed by Judge Keith P Ellison) (Attachments: # 1 Exhibit A, # 2 Exhibit B) Parties notified.(sloewe)

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1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION 2 3 4 BETTER BAGS, INC. * * * * * 5 VS. 6 REDI BAG USA LLC 7 10 January 13, 2012 6:55 p.m. EXCERPT OF PROCEEDINGS 8 9 09-CV-3093 Houston, Texas BEFORE THE HONORABLE KEITH P. ELLISON UNITED STATES DISTRICT JUDGE 11 APPEARANCES: 12 FOR BETTER BAGS: Anastassion Triantaphyllis 13 TRIANTAPHYLLIS LAW FIRM 112th E. 4th St. 14 Houston, Texas 77007 713.861.1748 15 16 FOR REDI BAG: Joseph J. Zito 17 ZITO, TLP 1250 Connecticut Ave. NW, Suite 200 18 Washington, D.C. 20036 202.466.3500 19 20 Court Reporter: 21 Johnny C. Sanchez, RPR, RMR, CRR 515 Rusk, #8016 22 Houston, Texas 77002 713.250.5581 23 Proceedings recorded by mechanical stenography. Transcript 24 produced by computer-assisted transcription. 25 2 1 THE COURT: Let's go the record. Everybody has 2 a copy of Question 1; is that right? 3 4 06:55:02 MR. TRIANTAPHYLLIS: Yes. THE COURT: I was just thinking of just 5 referring them to Instruction 10, the second sentence. "To 6 find literal infringement, you must find that each and 7 every element of Redi Bag's patented claim is found in the 8 Better Bags' product." 9 06:55:19 MR. TRIANTAPHYLLIS: I concur with the Judge's 10 suggestion. 11 MR. ZITO: I think the jury is confused on that 12 because of the use of the word "different" in that question 13 they brought back. A claim does not infringe if an element 14 is missing. It's infringed if the element is there, but 06:55:34 15 different. Because -- you see what I'm saying? 16 THE COURT: I see what you're saying. 17 MR. ZITO: If the element is there, if the 18 element is different, then it's there, then you don't have 19 an infringement because you have an element that's there. 06:55:47 20 If the element is not there, it's missing, it's not 21 different; okay? You see what I'm saying? If one of the 22 elements of the infringement is glasses; okay? I have 23 glasses on. 24 06:55:58 THE COURT: I know what you're saying. 25 MR. ZITO: But if I have sunglasses on and 3 1 they're different glasses, I still have glasses on. So I 2 think they're confused about "missing" versus "different." 3 THE COURT: We didn't even to try deal with 4 that, though, did we, in our instructions? Do you have 06:56:10 5 language to propose? 6 MR. ZITO: I would say the element has to be 7 missing in order to have noninfringement, not just 8 different. If did not find the element -- if you find -- I 9 guess they're looking for a pouch. If you find there's a 06:56:24 10 pouch but the pouch is different because the sleeve has a 11 different pouch than ours, it still infringes. If you find 12 there is no pouch, then you don't have infringement. So 13 it's missing. The elements -- that's the law of patent 14 law, the element is missing, no infringement, because if it 06:56:39 15 was different, then there would never be infringement 16 because nobody ever copies exactly the product. 17 MR. TRIANTAPHYLLIS: Your Honor, the general 18 statement of the law is that in order to do infringe, you 19 must have each and every element -06:56:56 20 MR. ZITO: The patented claim is found, that 21 means it has to be not missing. They're confusing "found" 22 with "different." 23 MR. TRIANTAPHYLLIS: Well, I was going 24 backwards. Each and every element of the claim must be 06:57:09 25 present in the infringing device, in the alleging 4 1 infringing device. That's the general concept. 2 Now, the -- I agree with your suggestion, 3 because to find literal infringement, you must find that 4 each and every element of Redi Bag's patented claim was 06:57:26 5 found in the Better Bags' product. That would solve the 6 problem because, while we assume there in the literal 7 infringement part, but what if they're in another area? 8 So, if we direct them to that particular place, then we'll 9 know that they're looking at that particular instruction. 06:57:47 10 The only problem I have with that particular 11 phrase, though, is, "To find literal infringement, you must 12 find that each and every element of Redi Bag's patented 13 claim is found in the Better Bags' product." Too many 14 "findings" and "found." But I guess the instruction is 06:58:03 15 there is fine. But I suggest to direct them to that 16 particular sentence. 17 MR. ZITO: And I think they're confused by the 18 word "literal." They think "literal" means the same, 19 because in the next line it does say, "same combinations of 06:58:20 20 elements." So they are confused as to whether "literal" 21 means "same." 22 THE COURT: I don't know if they're confused at 23 all, and I certainly don't know that that's what they're 24 confused about. One more time. Tell me what language you 06:58:44 25 would use. 5 1 MR. ZITO: I would use "missing" as opposed to 2 "different." 3 4 06:58:54 THE COURT: That's not an answer, though. MR. ZITO: I would -- well, the answer would 5 be, the way I would respond to that, "The element can be 6 different, as long as it's still that element." It can't 7 be missing. 8 THE COURT: It could be what they're really 9 curious about is the Doctrine of Equivalents. I don't 06:59:43 10 know. 11 MR. ZITO: I had that thought too. There were 12 some emphasis about being a different shape, because it's a 13 different shape. So, the instruction, they need to 14 understand that if you find a pouch that has all the 06:59:56 15 elements of a pouch, they could be a different pouch than 16 the pouch shown in the patent. That's what "different" 17 means to me. 18 "Missing" is the actual test in patent law, 19 which is why you have "found." "Found" is the opposite of 07:00:12 20 "missing." You must find it for infringement; therefore, 21 it must be missing, the opposite of "finding." You have 22 "find" in this instruction. So for not -- not infringement 23 must be "missing." 24 07:00:23 THE COURT: I understand what you're saying. 25 MR. TRIANTAPHYLLIS: Your Honor, may I? 6 1 THE COURT: Yes, sir. 2 MR. TRIANTAPHYLLIS: Looking at this question, 3 it says, in Claim 1 -- I know it sounds like my examination 4 here now. In Claim 1, there are multiple elements. If BB 07:00:39 5 product is similar, then they list header, bag, back wall, 6 et cetera. But not one element, that is, pouch, sleeve, is 7 different, is the example not infringing? I think they're 8 still in literal infringement part, and I think right 9 now -- I don't think, especially they're listing those 07:00:59 10 elements and they're talking about they're different on the 11 two elements, the pouch versus the sleeve. I think that 12 right now, looking at literal infringement, I think your 13 idea of directing them to that particular sentence is the 14 appropriate response. 07:01:16 15 MR. ZITO: And I think the clear, correct 16 patent law answer to that question, when you read it, is 17 "No. It's not noninfringement," because if it said: If BB 18 product is similar, header bag, back wall, et cetera, but 19 one element pouch sleeve is missing in the example, is 07:01:36 20 there no infringement? That answer would be, "Yes. But if 21 they're implying that in the product there is a sleeve, 22 which is different from the pouch, but it's still the same 23 element, then there is infringement. 24 07:01:50 So I think the answer to that question is, 25 "No." And they're not understanding because the 7 1 word "same" -- maybe it's because the word "same" appears 2 there. They're not understanding that "missing" is the 3 opposite of "found." 4 07:02:04 We contend to see these very clear, but 5 jurors sometimes don't these those very clearly. 6 MR. TRIANTAPHYLLIS: I don't think the answer 7 "no" is appropriate when you say, for example, "You only 8 need one element to be different for infringement." 9 07:02:22 THE COURT: As noted in the second sentence of 10 Instruction 10, "Each and every element of Redi Bag's 11 patented claim must be found in the Better Bags' product to 12 constitute infringement. Not every element must be 13 exactly..." Did I capture both ideas? "However, not every 14 element need be identical"? 07:02:52 15 MR. TRIANTAPHYLLIS: Your Honor, the insertion 16 of the word "identical" is -- I think is not something we 17 should do because then they're going to say, "What is 18 identical?" 19 07:03:07 THE COURT: That's a term I don't think needs 20 definition. 21 MR. ZITO: I think that would probably solve 22 it, Your Honor, what you proposed. 23 MR. TRIANTAPHYLLIS: I don't think adding this 24 "identical" thing is necessary because it seems to me to 07:03:18 25 find literal infringement -- the only reason I had 8 1 difficulty of the language because of the many uses of the 2 word "find." "But to find literal infringement, you must 3 find that each and every element Redi Bag's --" 4 07:03:30 THE COURT: Going way too fast. 5 MR. TRIANTAPHYLLIS: I'm sorry. I'm just 6 basically just directing them to the exact sentence of the 7 instruction. "To find literal infringement, you must find 8 that each and every element of Redi Bag's patented claim is 9 found in the Better Bags' product." I mean, that's what 07:03:48 10 the law is on literal infringement. 11 MR. ZITO: But that's not their question. 12 MR. TRIANTAPHYLLIS: I think that's their 13 question. 14 07:03:57 MR. ZITO: The question is, "If I find it, can 15 it still be different?" And the answer is, "Yes, it can be 16 different," which as the Judge phrased, "it doesn't have to 17 be identical." 18 MR. TRIANTAPHYLLIS: Your Honor, the nature of 19 the question, for example, do you only need one element to 07:04:07 20 be different for "infringement means"? 21 MR. ZITO: That's not the patent law. If you 22 let that stand, you'd have a mistrial. That's not patent 23 law. 24 07:04:29 THE COURT: My law clerk suggests, second 25 sentence, "Not every element of the two products must be 9 1 identical." 2 MR. ZITO: So you think they're comparing 3 products? Do you think they're comparing the product? 4 07:04:40 THE COURT: I don't know. 5 MR. ZITO: It could be. Because that's where 6 you get the different -- there's a difference between the 7 shape of the pouch and the shape of the sleeve. That's 8 where they're different. But they don't have to find that 9 they're the same. They could be different. They just have 07:04:52 10 to find that the elements are not missing. 11 MR. TRIANTAPHYLLIS: Then, Your Honor, the same 12 question -- well, this question is only directed on if 13 something is -- is there or is not there. It doesn't say 14 about what the comparison should be between the elements. 07:05:07 15 The way I read the question is they're asking whether each 16 and every element must be present to find infringement. 17 And, basically, the line, "To find literal infringement, 18 you must find that each and every element of Redi Bag's 19 patented claim is found in the Better Bags' product" is the 07:05:27 20 line that they should be directed to. 21 THE COURT: Well, I'm always a little reluctant 22 just to refer them to something we've already said. That 23 doesn't seem terribly responsive. 24 07:05:40 MR. TRIANTAPHYLLIS: The only problem is I 25 think maybe they haven't had the opportunity to digest what 10 1 it says, or they have overlooked it. That's why I think 2 maybe find some guidance from it. If they don't, then they 3 can come back. Maybe they'd say, "That's not our 4 question." Or if they say, "Oh, yeah. There is our 07:06:01 5 answer." 6 THE COURT: Okay. Anybody else want to say 7 anything? I'll make my decision, but does anybody else 8 want to say anything? 9 07:06:13 MR. ZITO: I like your recommendation of the 10 two sentences, because I think they've read it, they don't 11 understand what "found in" versus "the same combination" 12 means. They don't know whether they should be looking at 13 something missing or something different. I think you're 14 clarifying that. 07:06:28 15 MR. TRIANTAPHYLLIS: Your Honor, if we do that, 16 then they don't have to be identical, then, you know, we're 17 opening a broad interpretation. 18 THE COURT: I think that's right, but I think 19 that is what they're looking for. 07:06:46 20 MR. TRIANTAPHYLLIS: Well, if they're -- I 21 don't see the reason for the identical thing for using the 22 word "identical" here, because I don't think they're asking 23 about "identical." I think the use of the word "different" 24 means that, you know, like only need one element to be 07:07:01 25 different for infringement. I think what they're doing, 11 1 they're saying is, "Well, it's not there as claimed." 2 MR. ZITO: I think they would have said 3 "missing." I think they found all the elements, and they 4 found two -- one of the elements is different. It looks 07:07:19 5 different, it's not -- it's not the same as what's in the 6 example, because they've had some comparison of the 7 commercial product. They're saying: "Okay. We found all 8 the elements. We have a question now." Some people raise 9 a question. If we found the element, but it's different, 07:07:32 10 do you still have infringement? And the patent law is 11 clear on that. Yes, you find the element. 12 THE COURT: Do you think that's different from 13 the law of equivalents? 14 07:07:42 MR. ZITO: Yes. Because when you don't find an 15 element if you find insubstantially different. That's -16 first, you don't find the element, you find something that 17 is not the element but is insubstantially different from 18 it. 19 07:07:54 I agree. First, I thought maybe they were 20 talking about Doctrine of Equivalents, but I don't think 21 they are here. That's different because a claim has scope, 22 otherwise it would be a picture claim and you just take 23 Figure 1 and say, "Does it look the same?" And that's not 24 what you do in patent law. You don't look at the same as 07:08:08 25 pic- -- Figure 1. If they're saying "same" or "different," 12 1 they're comparing it to something else, which has to be the 2 commercial violated our Figure 1. And patent law clearly 3 states it's not the same as Figure 1. So "different" is 4 allowed. 5 THE COURT: Okay. Thank you-all for your help. 6 07:08:20 MR. TRIANTAPHYLLIS: Or alternatively, Your 7 Honor, the answer is, "Yes." 8 THE COURT: I don't think that's quite right, 9 though. I don't think that's quite the proper answer. 07:08:36 10 MR. TRIANTAPHYLLIS: Well, the reason I say 11 that because if we go to this idea of "different, not all 12 is identical," that's when we get -13 THE COURT: I wish they had never raised it, 14 but since they have, I think I have to be a little more 07:08:48 15 responsive than just saying, "Yes." 16 Thank you very much. 17 (Recessed at 7:09 p.m.) 18 COURT REPORTER'S CERTIFICATE 19 20 I, Johnny C. Sanchez, certify that the foregoing is a 21 correct transcript from the record of proceedings in the 22 above-entitled matter. 23 24 25 /s/_________________________ Johnny C. Sanchez, CRR, RMR

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