September 9, 2019 Nika Aldrich

Admitted to practice in Oregon,

Washington and New York
T: 503-796-2494
C: 206-778-9678
naldrich@schwabe.com

Peter R. Marksteiner
Clerk of the Court
United States Court of Appeals for the
Federal Circuit
717 Madison Place NW
Washington, DC 20439

Re: Columbia Sportswear North America, Inc. v.

Seirus Innovative Accessories, Inc.
USCA Fed. Cir. Nos. 18-1329, -1331, -1728

Dear Mr. Marksteiner:

We write to address a concern that the Court raised sua sponte at oral argument on
September 5, 2019, in the above-referenced case.

Concerning Columbia’s appeal seeking a new trial due to the admittance of false
testimony provided by Seirus’s expert, Dr. Block, the panel appeared to express
agreement that Dr. Block’s testimony went beyond the scope of his expert report,
but questioned whether Columbia sufficiently preserved its objections to the
testimony. Because Seirus never disputed that Columbia adequately preserved its
objections—either before the district court or on appeal—Columbia writes briefly
to provide this Court with the relevant parts of the record, including parts of the
record that previously were not included in the joint appendix because Seirus did
not raise waiver arguments. Those parts of the record include: (1) Columbia’s
motion in limine to exclude Dr. Block’s improper slide and related testimony
(Appx1651—Appx1656); (2) additional relevant portions of the trial transcript
(Appx-3199—3205; and (3) relevant portions of Seirus’s opposition to Columbia’s
motion for judgment as a matter of law or new trial (Appx4203—Appx4207).

Pacwest Center | 1211 SW 5th | Suite 1900 | Portland, OR | 97204 | M 503.222.9981 | F 503.796.2900 | schwabe.com
Peter R. Marksteiner
September 9, 2019
Page 2

At trial, before Dr. Block’s testimony, Columbia moved in limine to exclude the
entire demonstrative slide supporting Dr. Block’s improper calculations on
coverage ratio and all related testimony, asserting that the slide and all related
testimony went beyond the scope of Dr. Block’s expert report and was improper.
(Appx1651-1653; Appx2877-2878; Appx3202 ll. 1-3 (“there is no evidence in the
record of that, so this is an entirely new opinion”; Appx1509 ll. 16-21). Columbia
also specifically objected to Dr. Block’s proposed testimony in which he would
falsely represent the coverage ratio in Fottinger. (See, e.g., Appx3204; Appx1653
(“[b]ased on the presence of the… slide in his demonstratives, Dr. Block appears to
intend to testify about the percentage of those sheets of material coated in binder in
Fottinger’s experiment”).) After considering the parties’ respective arguments on
Columbia’s motion to exclude the testimony, the district court made a definitive
ruling that the testimony was admissible, ruling: “Your objection is overruled.
The slide will be allowed. I believe [the objection] goes to the weight, not the
admissibility of the evidence and it is, therefore, allowed.” (Appx3204 ll. 24-25—
Appx3205 ll. 1-2.) In its order on post-trial motions, the district court reiterated
that position, rejecting the argument that it should have granted Columbia’s motion
to exclude the slide and related testimony and ruling that “Dr. Block’s testimony
was properly admitted into evidence.” (Appx9.)

This Court applies “the law of the regional circuit to the procedural question of
waiver.” Riverwood Int’l Corp. v. R.A. Jones & Co., 324 F.3d 1346, 1352 (Fed.
Cir. 2003). The law of the Ninth Circuit does not require a party to renew an
objection to the admission of challenged evidence at trial—or to move to strike the
evidence—“where the substance of the objection has been thoroughly explored
during the hearing on the motion in limine, and the trial court’s ruling permitting
introduction of the evidence was explicit and definitive[.]” Palmerin v. Riverside,
794 F.2d 1409, 1413 (9th Cir. 1986); see also, e.g., Dream Games of Ariz., Inc. v.
PC Onsite, 561 F.3d 983, 988 n.3 (9th Cir. 2009) (“The district court was
sufficiently informed as to PC Onsite’s grounds for objection and denied that
motion in a definitive ruling. Therefore, PC Onsite’s objection … has been
preserved for appellate review.”). A ruling is definitive “if the trial judge rules in
an unequivocal manner, without reserving the matter for further consideration as
the trial progresses and the evidence unfolds.” Christopher B. Mueller & Laird C.
Kirkpatrick, 1 Federal Evidence § 1:10 (3d ed. 2007). Although some circuits
previously required renewal of objections at the introduction of the challenged
evidence, the Ninth Circuit’s approach now has been codified in amendments to

schwabe.com
Peter R. Marksteiner
September 9, 2019
Page 3

Federal Rule of Evidence 103. See Fed. R. Evid. 103(b) (“Once the court rules
definitively on the record—either before or at trial—a party need not renew an
objection or offer of proof to preserve a claim of error for appeal.”); see also, e.g.,
Mathis v. Exxon Corp., 302 F.3d 448, 459 n.16 (5th Cir. 2002) (citations omitted)
(explaining the amendment to FRE 103 “changed the law that had prevailed in this
circuit. . . . [b]efore the amendment, we required an objection at trial to preserve
the error”); Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1062 (9th Cir.
2002) (“Contemporaneous objection is not required where, as here, the trial court
definitively ruled on a motion in limine after exploring CSUH’s objection.”).

Under the law of the Ninth Circuit, a court also will not address the adequacy of a
party’s objections, or waiver of an issue in the district court, unless it is raised by
the opposing party. See, e.g., Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir.
2010) (“[t]his court will not address waiver if not raised by the opposing party”).
Here, as noted, Seirus never argued in the district court or on appeal that Columbia
failed to adequately raise its objections to Dr. Block’s testimony. (Appx-4203—
Appx4207 (relevant portions of Seirus’s opposition to new-trial motion).)

Under the law of the Ninth Circuit, Columbia adequately preserved its objection to
Dr. Block’s improper and false testimony on coverage ratios based on his
demonstrative slide. Columbia objected to the slide and all related testimony in a
written motion in limine and in arguments on the motion before the district court.
After being fully informed of the nature of Columbia’s objection, the district court
overruled Columbia’s objection and erroneously determined that Dr. Block’s
testimony was admissible. The district court adhered to that erroneous
determination in ruling on post-trial motions, asserting that it correctly overruled
Columbia’s objection and asserting that Dr. Block’s testimony was admissible.
There was no requirement for Columbia to renew its objection at the time of Dr.
Block’s testimony, or to move to strike the testimony, after the district court ruled
definitively that the testimony was admissible. Seirus also never contended that
Columbia waived the issue, either in the district court or on appeal. The admission
of Dr. Block’s testimony, over Columbia’s objection, was prejudicial error, and a
new trial is required on Columbia’s appeal.

schwabe.com
Peter R. Marksteiner
September 9, 2019
Page 4

Respectfully,

Nika Aldrich
NFA:sjb

cc: All Counsel of Record

schwabe.com
PDX\106477\239332\NFA\26114372.2
 ase 3: 17-cv-01781-HZ Document 335 Filed 09/23/17 PagelD.14532 Page 1 of 7

1 DAVID R. BOYAJIAN (SBN #257825)

2 DAVIDW. AXELROD (OSB #750231)
admitted pro hac vice
3 BRENNA K. LEGAARD (OSB #001658),
4
admitted pro hac vice
NICHOLAS F. ALDRICH, JR. (OSB #160306),
5 admitted pro hac vice
6 SCHWABE, WILLIAMSON & WYATT, P.C.
1211 SW 5th Ave., Suite 1900
7 Portland, OR 97204
8 Telephone: 503.222.9981
E-mail: dboyajiaischwabe.com
9 daxelrod schwabe.com
blegaard schwabe.com
10 naldrich schwabe.com
11 Attorneys for Plaintiff
12
13
UNITED STATES DISTRICT COURT
14
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
15
SAN DIEGO DIVISION
16
COLUMBIA SPORTSWEAR NORTH Case No.: 3:17-cv-01781-HZ
17 AMERICA, INC., an Oregon corporation,
COLUMBIA'S MOTION TO
18 Plaintiff, EXCLUDE SEIRUS'S
PROPOSED DEMONSTRATIVE
19 V. EXHIBIT DDX528
20 SEIRUS INNOVATIVE ACCESSORIES, Judge: Marco A. Hernandez
INC., a Utah corporation, Courtroom: 3C
21 D_ate: September 25, 2017
Defendant. Time: 9:00 a.m.
22
Date Action Filed: January 12, 2015
23 Trial Date: September 18, 2017
24
25
26
27
28

COLUMBIA MOTION TO EXCLUDE CASE NO.: 3: l 7-CV-01781

Appx1651
 ase 3:17-cv-01781-HZ Document 335 Filed 09/23/17 PagelD.14533 Page 2 of 7

1
LR 7-1 CERTIFICATION
2
Plaintiff certifies that, through its counsel, it conferred with counsel for
3
Defendant, but the parties were not able to resolve the issues involved in this motion.
4
I. MOTION
5
Plaintiff Columbia Sportswear North America, Inc. ("Columbia") moves to
6
exclude Seirus Innovative Accessories, Inc. 's ("Seirus") proposed demonstrative
7
exhibit DDX528 and testimony from Dr. Block on this subject.
8
II. ARGUMENT
9
The slide reflects opinions concerning the disclosure in the Pottinger reference.
10
A critical issue in this case is whether Pottinger discloses a 30-70% coverage ratio.
11
Pottinger does disclose a "discontinuous coating comprising a binder and metal
12
powder ... which cover 5 to 40% of the surface area of the coated face." [Ex. C
13
(Pottinger), p. 1, 11. 54-60.J 1 In his expert report, Dr. Block relied on this text and
14
nothing more in support of his opinion that Pottinger disclosed the 30-70% limitation.
15
[Ex. A (Block invalidity report), ,r 290.J
16
Pottinger also provides, on page 2, from lines 80-124, a description of an
17
experiment he conducted to validate his invention. In that experiment, Pottinger
18
coated two sheets of material, one with a rubber binder mixed with aluminum powder,
19
and one with rubber binder alone. He applied the mixture to the sheets of material
20
using the following technique:
21
"Printing was effected using a 25 mesh printing film, hole
22 0 0.5 mm, thickness 0.22 mm. A 40 g/m 2 coating was
applied and then dried."
23
[Id. p. 2, 11. 103-105.]
24
25
26
1
Ex._ refers to the exhibits to the Declaration ofNika Aldrich in Support of
27 Columbia's Motion to Exclude Seirus's Proposed Demonstrative Exhibit DDX528,
28 filed contemporaneously herewith.
1
COLUMBIA MOTION TO EXCLUDE CASE NO.: 3: l 7-CV-01781

Appx1652
 ase 3:17-cv-01781-HZ Document 335 Filed 09/23/17 PagelD.14534 Page 3 of 7

1 Fottinger does not disclose what percentage of each sheet of material was
2 coated in binder, or indeed whether the coating used in the experiment was
3 discontinuous at all. Based on the presence of the following slide in his
4 demonstratives, Dr. Block appears to intend to testify about the percentage of those
5 sheets of material coated in binder in Fottinger' s experiment.

7
Fottinger's Heat Directing Elements
8
9

10
Printing was effected using a 25 mesh printing
11 film, hole 0 0.5 mm, thickness 0.22 mm. A 40 g/m2
coating was applie and then dried.
12 I
i

13 ~ ·
~ !

14 40.s ~ Er. /040

ar Col. l:103-105

15
16
17
18
19
20 r-- 1.0~
21 OOX- 528

22
23 Dr. Block did not rely on this experiment in support of his opinion that

24 Fottinger discloses a 30-70% coverage range, and his report contains no discussion

25 about the experiment at all, let alone what percentage of the sheets of material was

26 coated in binder. Had he wanted to provide any such testimony, he would have

27 needed to support it with substantial analysis concerning numerous factors in order to

28 satisfy Daubert. For example, he would need to opine on what he believes Fottinger
2
COLIDv1BIA MOTION TO EXCLUDE CASE NO.: 3: l 7-CV-01781

Appx1653
 ase 3: 17-cv-01781-HZ Document 335 Filed 09/23/17 Pagel D.14535 Page 4 of 7

1 means by "25 mesh printing film." Fottinger says that his 25 mesh printing film had a
2 hole 0 0.5 mm, thickness 0.22 mm. But that information is insufficient to identify the
3 structure of the mesh. The area between the holes has a width and a depth, and
4 Fottinger only provides a "thickness." Fottinger's reference to "25 mesh printing
5 film" could refer to a standard for mesh printing films, but there are numerous
6 standards for "mesh," including the US standard, the Tyler standard, and Tensile
7 Bolting Cloth, Mill Grade, and Market Grade standards. Under each standard,
8 "25 mesh" means different dimensions. See generally
9 https: //en.wikipedia.org/wiki/Mesh_(scale). Particularly given that Fottinger worked
10 for a German company and the application was filed in 1981 in Great Britain, it is
11 virtually impossible to determine to which standard Fottinger was referring, or if he
12 was even referring to a standard at all. Dr. Block' s report contains no opinions
13 regarding any of these issues.
14 Additionally, the binder solution in Fottinger is liquid, comprising 50% water.
15 As it is applied through the mesh, it would likely spread on the fabric until the drying
16 process is complete. Dr. Block provided no analysis in his report regarding how
17 viscous the binder was, or how much it would spread during the drying process. Dr.
18 Block has provided no opinion regarding the percent coverage that would result from
19 the embodiment disclosed in Fottinger's experiment.
20 By offering opinions on these subjects for the first time as testimony to the jury,
21 Seirus makes it impossible for the Court to exercise its gatekeeping function under
22 Daubert to ensure that the testimony is admissible under F .R.E. 702. "Faced with a
23 proffer of expert scientific testimony, then, the trial judge must determine at the
24 outset, pursuant to F.R.E. 104(a), whether the expert is proposing to testify to
25 (1) scientific knowledge that (2) will assist the trier of fact to understand or determine
26 a fact in issue." Daubert v. Merrell Dow Pharms., Inc., 509 U .S. 579, 592-593,113 S.
27 Ct. 2786 ( 1993 ). The Court must conduct a "preliminary assessment of whether the
28 reasoning or methodology underlying the testimony is scientifically valid and of
3
COLUMBIA MOTION TO EXCLUDE CASE NO.: 3: l 7-CV-01781

Appx1654
 ase 3:17-cv-01781-HZ Document 335 Filed 09/23/17 PagelD.14536 Page 5 of 7

1 whether that reasoning or methodology properly can be applied to the facts in issue."
2 Id. Seirus has denied the Court any opportunity to make that assessment, and the
3 testimony must be excluded on that basis.
4 Moreover, the slide is also inadmissible under the Rules of Evidence.
5 Demonstrative exhibits, like all exhibits, must satisfy the rules of evidence. Thus, a
6 demonstrative exhibit may only be shown to the jury where the proponent can prove
7 that it "is [an] authentic, relevant, fair, and accurate representation of the evidence to
8 which it relates, and its probative value substantially outweighs the danger of unfair
9 prejudice, confusing the issues, or misleading the jury." Tate v. Statco Eng 'g and
10 Fabricators, Inc., 2014 WL 509521, at *5 (E.D. Okla 2014).
11 Not only can Dr. Block not authenticate the information on the slide, but the
12 slide is not an accurate representation and is prejudicial. Dr. Block shows the
13 resulting dots of binder as being highly reflective, having a mirror like surface, as
14 though they were made from chrome. But Fottinger used aluminum powder, which is
15 often dull grey or black, and mixed it into a rubber binder. There is no evidence in the
16 record or in Dr. Block's report regarding what the results would look like, though it is
17 unquestionable that the results would not look like chrome or like a mirror.
18 When Columbia raised these issues in conferral, Seirus contends that Dr. Block
19 did opine about Fottinger's experiment. But Dr. Block only opined that the result of
20 the experiment confirmed heat reflection~an opinion that he has since admitted was
21 wrong. [Ex. A, ,i 298, Ex. B (PDX-111 ). ] This opinion has nothing to do with the
22 actual structure or appearance of the resulting fabric.
23 III. CONCLUSION
24 For the foregoing reasons, the Court should preclude any testimony from
25 Dr. Block regarding the experiment in Fottinger beyond the opinion that the
26 III
27 III
28 I II
4
COLUMBIA MOTION TO EXCLUDE CASE NO.: 3: l 7-CV-01781

Appx1655
 ase 3:17-cv-01781-HZ Document 335 Filed 09/23/17 PagelD.14537 Page 6 of 7

1 experiment concerned heat reflection. The Court should also preclude any use of
2 DDX528.

3 Dated: September 23, 201 7

SCHWABE, WILLIAMSON & WYATT, P.C.
4

5 By: s/ Nicholas F. Aldrich

David R . BoyaJian
6 E-mail: dboyaJian@schwabe.com
David W. Axelrod pro hac vice
7
E-mail: daxelrod(a)schwabe.com
Brenna K . Legaard, pro hac vice
8 E~mail: blegaarq(ci),schwabe.com
Nicholas F. Aldncn, Jr., pro hac vice
9 E-mail: naldrich@schwabe.com
Attorneys for Plaintiff
10
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5
COLUMBIA MOTION TO EXCLUDE CASE NO.: 3: l 7-CV-01781

Appx1656
 15 04

1 OF MANUFACTURE IS.

2 AND BECAUSE SOME OTHE R EXPERT RAISED THAT ISSUE, I

3 DON'T KNOW HOW I FEEL ABOUT THAT. THERE I S NO OB J ECT I ON AND

4 IN IT CAME. THEY ARE NOT OBJECT ING ON THAT I SSUE EITHER ,

5 HOWEVER . THEY ARE OB J ECT ING SI MP LY BECAUSE DR. BLOCK WAS

6 LATE IN PROVIDING SOME INFORMATI ON .

7 COLUMBIA CONTENDS THAT SEIRUS IS PRODUCING THE

8 REPORT BY DR . BLOCK THAT OPINES FOR THE FIRST TIME THE

9 ARTICLE OF MANUFACTURE ANALYSIS . ON THAT ISSUE , FOR REASONS

10 THAT COLUMBIA I S RAISING , AND THAT IS THAT THE REPORT WAS

11 LATE, ONCE AGAIN, IT WAS NOT SUBSTANTI AL LY JUSTIFIED , AND THE

12 I SSUE I S WHET HER OR NOT THAT IS HARMLESS OR NOT.

13 IN THI S CASE , IT'S A LITTLE BIT DIFFERENT BECAUSE ,

14 AGAIN, HE'S PROVIDING AN EXPERT IS E REGARDING WHAT THE ART I CLE

15 OF MANUFACTURE IS FOR THE FIRST TIME. IT WAS LATE. NOT

16 EXCUSED . I AM SUSTAINING THE OBJECTI ON REGARDING THAT I SSUE

17 WITH DR . BLOCK . DR . BLOCK WILL NOT BE OP INING ON THE

18 SUPPLEMENTAL REPORT .

19 THERE WAS , IN ADDITION , THIS WEEKEND, OTHER THINGS

20 YOU GAVE ME TO THINK ABOUT. ONE OF THEM HAD TO DO WITH A

21 SLIDE THAT DR . BLOCK WAS PROVIDING REGARDING THE SIZE OF THE

22 MESH AND WHETHER OR NOT HE COUL D TALK ABOUT FOTTINGER'S , NOT

23 ONLY REFLECTIVE CAPACITY , BUT RATHER WHETHER IT SOME HOW FIT

24 WITHIN THE 30- TO 70 - PERCENT RANGE.

25 AND COLUMBIA -- I ' VE READ YOUR MATERIALS, BUT I JUST

COMPUTER-AIDED TRANSCRIPTI ON

Appx3199
 15 05

1 READ THEM THIS MORNING, SO I HAVE NOT STUDIED THEM -- I S

2 SAYING, AS I GET IT, THAT DR. BLOCK NEVER OP INED REGARDING

3 THE PREC I SE DIMENSI ONS OF THE MESH , WH I CH WOU LD AFFECT THE

4 CALCULATION ABOUT THE COVERAGE .

5 I THINK I SAID THAT CORRECT LY.

6 MR . ALDRICH : THAT ' S FAIR . I CAN HELP I F THAT WOULD

7 BE BENEFICIAL.

8 THE COURT : SURE .

9 MR . ALDRICH : SO FOTTINGER EXPLAINS IN HIS PATENT

10 APP LI CAT I ON THE IDEA OF USING A 5 - TO 40 - PERCENT COVERAGE .

11 THAT ' S NOT DISPUTED .

12 AND AT THE END OF HI S APP LI CAT I ON, HE PROVI DES SOME

13 DETAILS OF AN EXPERIMENT THAT HE TRIED . AND THAT EXPERIMENT ,

14 HE PUT DOWN SOME MESH AND THEN APP LI ED HI S MAGIC BINDER

15 SOLUTION WITH ALUMINUM IN IT OVER THE MESH TO CREATE A SAMPLE

16 FABRIC .

17 NOW , THERE IS DISPUTE IN THIS CASE ABOUT -- HE GOES

18 ON TO EXPLAI N WHAT THE RESULTS OF THAT TEST SHOWED . AND

19 DR. COLE HAS DONE AN ANALYS I S OF WHAT THE RE SULT S SHOWED .

20 BUT THERE I S NO EVI DENCE AND NO OP INI ONS HAVE BEEN OFFERED IN

21 THI S CASE ABOUT WHAT THE PERCENT COVERAGE WAS IN THAT

22 EXPERIMENT , LAYING THE MESH DOWN AND PUTT ING THIS GOOP OVER

23 THE TOP OF IT ON TH I S FABRIC .

24 AND THE TERM " MESH ," " 25 MESH " HAS A MYRIAD OF

25 MEANINGS , DEPENDING ON WHICH SCALE OF MESH YOU USE . YOU ' D

COMPUTER-AI DED TRANSCRI PT I ON

Appx3200
 15 06

1 HAVE TO ALSO FIGURE OUT THE VISCOSITY OF THE BINDER THAT GOES

2 THROUGH THE MESH AND HOW IT'S GOING TO DRY .

3 SO AN EXPERT WOULD HAVE TO OPINE ABOUT -- AS A

4 RESULT OF THIS PROCESS , OF SMEARING THIS VISCOUS FLUID OVER

5 THIS MESH SCREEN THAT ' S GOING TO GO OVER A PIECE OF FABRIC ,

6 AN EXPERT WOULD HAVE TO GIVE AN OPINION ABOUT WHAT THE

7 PERCENT COVERAGE OF THE RESULT OF THAT WOULD BE . AND NEITHER

8 EXPERT IS DOING THAT . THE EXPERTS ARE RELYING INSTEAD ON

9 THAT 5 - TO 40 - PERCENT NUMBER THAT FOTTINGER EXPLAINED EARLIER

10 IN HIS APPL I CAT I ON.

11 SO THIS IS THE FIRST TIME THAT DR . BLOCK IS ACTUALLY

12 GI VING AN OPINION ON WHAT THIS EXPERIMENT WOULD LIKE LOOK.

13 AND HE ' S GOT A SLIDE THAT SAYS , YEAH, YOU ' D HAVE THESE

14 PERFECT CI RCULAR DOTS LEFT OVER IF YOU HAD A 25 MESH.

15 ESSENTIALLY THERE WOULD BE NO SPREADING OF THE GOOP AS IT

16 DRIES . HE DOESN 'T GIVE ANY ANALYSIS . HE ' S JUST SHOWING THE

17 JURY A VISUAL OF WHAT HE THINKS THE RESULT WOULD LOOK LIKE.

18 AND HE ' S GOT THEM LIKE MIRRORS , TOO. SO THERE IS NO

19 EVIDENCE THAT THIS RUBBERY GOO P IS GOING TO LOOK LI KE A

20 MIRROR . SO IT'S PREJUDICIAL AND INACCURATE IN THAT WAY AS

21 WELL .

22 BUT , AGAIN , THIS IS NEW OPINION TESTIMONY THAT ' S

23 NEVE R BEEN PROVIDED IN TERMS OF IF YOU ACTUALLY TOOK THIS

24 EXPERIMENTAL GOOP , RUBBERY STUFF AND SPREAD IT ON A SCREEN

25 OVER SOME FABRIC , WHAT WOULD THE RESULT ACTUALLY LOOK LIKE?

COMPUTER- AI DED TRANSCRIPTION

Appx3201
 15 07

1 AND WOU LD IT BE 5- TO 40 - PERCENT COVERAGE? THERE I S NO

2 EVIDENCE IN THE RECORD OF THAT, SO THIS I S AN ENTIRELY NEW

3 OP INI ON AND THAT ' S THE BAS I S OF OUR OBJECT I ON.

4 THE COURT: OKAY. THANK YOU.

5 MR . SPROUL: AS YOU CAN TELL FROM OUR BRI EFING, THE

6 WORDS " 25 MESH " DO NOT APPEAR IN DR . BLOCK ' S REPORT .

7 NEVERTHELESS , FOTTINGER IS A VERY BRIEF AND SUCCINCT

8 REFERENCE , AS YOUR HONOR HAS ALREADY NOTED , AND THE PARTIES

9 HAVE FUL LY VETTED IT .

10 AND THE DISPUTE DURING DI SCOVERY , AND BETWEEN THE

11 EXPERTS AND IN THE REPORTS WAS THE EFFECT OF DR . FOTTINGER ' S

12 TEST. TH I S I S SI MP LY FOUNDATI ONAL. THERE I S NO DISPUTE THAT

13 HE DID THE TEST . AND TH E SPECIFIC DISPUTE , AS YOU ' VE SEEN ,

14 RELATES TO REALLY TWO LIN ES IN FOTT I NGER ' S APPL I CAT I ON WHERE

15 HE SAYS , PRINTING WAS EFFECTED USING A 25-MES H PRINTING FILM ,

16 WHOLE THETA 0 . 5 MILLIMETER . THI CKNESS I S 0 . 22 MILLIMETER .

17 STRAI GHTFORWARD . NEVER CONTESTED . IT' S SI MPLY

18 FOUNDAT I ONAL TO WHAT THE PARTIES REALLY DI SPUTE, WH I CH I S

19 WHET HER OR NOT THIS REFLECTED HEAT.

20 AND SO --

21 THE COURT: SO YOU'RE NOT ARGUING TO THE JURY THAT

22 THE EXPERIMENT TEACHES 40-PERCENT COVERAGE OR A PART I CU LAR

23 PERCENTAGE OF COVERAGE?

24 MR . SPROUL: WE LL, CERTAINLY DR. BLOCK CAN DO THE

25 MATH , OR ANYBODY CAN DO THE MATH BASED ON THIS DESCRIPTION OF

COMPUTER-AIDED TRANSCRIPTI ON

Appx3202
 15 08

1 WHAT A 25 MESH PASTE WOUL D LAY DOWN . IT' S CONSI STENT WITH

2 WHAT FOT TINGER SAYS ELSEWHERE . HE SAYS , MY COVERAGE I S 5 TO

3 40 PERCENT . THIS DOES NOT FALL OUT SI DE OF THAT RANGE BASED

4 ON THE MATH THAT A HIGH SCHOOLER COULD DO ONCE YOU HAVE THE

5 MEASUREMENTS .

6 AND SO OUR UNDERSTANDING WAS THAT THIS WASN'T

7 DISPUTED . THIS WAS A RE LATIVE LY STRAIGHTFORWARD ISSUE

8 BECAUSE THE COVERAGE WAS ALREADY ESTABLISHED ELSEWHERE IN

9 FOTTINGER ' S REPORT , AND THE ISSUE WAS WHETHER OR NOT IT

10 REFLECTED . AND DR. COLE SAYS SHE CONSIDERED FOTT INGER ' S

11 EXPERIMENT , AND SHE THIN KS THAT IT DOESN ' T DISCLOSE AT LEAST

12 ONLY HEAT-DIRECTING ELEMENTS. I T SI MP LY CONDUCTS .

13 SO OUR UNDERSTANDING WAS THAT THIS WAS REALLY A

14 NONIS SUE , AND THAT THEY ARE RAISING IT NOW SI MP LY TO UNDERCUT

15 DR . BLOCK ' S LATER TESTIMONY ON HOW AND WHY FOTTINGER WOULD

16 ACTUAL LY WORK . BUT THIS WASN ' T IN DISPUTE. THE WORDS WERE

17 THERE FOR THEM . DR . BLOCK HAD IT.

18 IT' S JU ST THE PARTIES , AS FAR AS I UNDERSTAND IT,

19 DIDN'T UNDERSTAND THI S TO BE THE DISPUTE . AND CERTAINLY

20 PERHAPS THERE ARE OTHER MESHES . DR . BLOCK WILL TESTIFY THAT

21 ONE OF ORDINARY SKILL UNDERSTOOD EXACTLY WHAT THI S 25 MESH

22 WAS , REGARDLESS OF THE FACT THAT THERE MAY BE OTHER

23 STANDARDS . AND THERE I S A VERY SI MP LE REASON WHY.

24 BUT WE BE LI EVE THIS WAS FULLY DI SC LOSED . DR . COLE

25 HAD TWO PAGES ON IT IN HER EXPERT REPORT . SO WE SUBMIT THAT

COMPUTER-AI DED TRANSCRI PT I ON

Appx3203
 15 09

1 YOUR HONOR SHOU LD ALL OW IT.

2 THE COURT: THANK YOU .

3 MR . ALDRICH : SO THESE TWO SENTENCE S THAT THEY SAY

4 PLAIN ORDINARY MATH , BASED ON WHAT? I MEAN , WHAT DOES 25

5 MESH MEAN?

6 THAT ' S SOMETHING THAT AN EXPERT HAS TO GI VE AN

7 OPINION ON , BECAUSE THERE ARE FIVE DIFFERENT STANDARDS FOR

8 MEASURING MESH . AND THEY ARE DIFFERENT IN EUROPE VERSUS THE

9 UNITED STATES . AND THIS IS A GERMAN PATENT APPLICATION THAT

10 WAS FIL ED IN GREAT BRI TTAIN.

11 SO WHICH MESH WOULD HAVE BEEN UNDERSTOOD BY A PERSON

12 OF ORDINARY SKILL IN THE ART , AND WHAT THOSE MEASUREMENTS

13 WOULD HAVE MEANT , THETA .5 MM . I HAVE NO IDEA WHAT THAT

14 MEANS. THAT ' S SOMETH I NG THAT ' S QUINT ESSENTIALLY AN EXPERT

15 OPINION .

16 AND THE SE TWO LINES OF TEXT THAT THEY ARE SAYING

17 THAT ARE IN FOTTINGER . THEY ARE IN FOTTINGER . BUT

18 THROUGHOUT THI S CASE , THEY SHOW UP IN NO EXPERT REPORT . THEY

19 SHOW UP IN NO DEP OS ITI ON. THEY ARE NOT SOME THING THAT EITHER

20 PARTY HAS RELIED ON IN THIS CASE IN TERMS OF FIGURING OUT

21 WHAT FOT TINGER ' S DISCLOSURE ACTUALLY MEANS . IN STEAD, THE

22 PART IES HAVE RELIED ON THE 5 TO 40 PERCENT . BOTH EXPERTS

23 HAVE OPIN ED ON THAT .

24 THE COURT: THANK YOU . YOUR OBJECT I ON I S OVERRU LE D.

25 THE SLIDE WILL BE ALL OWED . I BELIEVE IT GOES TO THE WEIGHT,

COMPUTER-AI DED TRANSCRIPTI ON

Appx3204
 1510

1 NOT THE ADMISSIBILITY OF THE EVIDENCE AND IT IS, THEREFORE,

2 ALLOWED .

3 MR . SPROUL : THANK YOU, YOUR HONOR .

4 THE COURT: IS THERE ANYTHING ELSE WE NEED TO TALK

5 ABOUT THIS MORNING BEFORE WE GET STARTED? I KNOW YOU BOTH

6 SENT ME SOME INFORMATION REGARDING THE HOMEWORK ASSIGNMENT

7 THAT I GAVE YOU . I HAVE NOT HAD AN THE OPPORTUNITY TO READ

8 THAT YET .

9 MR . SPROUL : AN ADDITIONAL ISSUE , YOUR HONOR , THAT

10 HAS NOT BEEN RAISED TO THE COURT BEFORE , AND I DIDN'T GET A

11 CHANCE TO SPEAK TO MR . ALDRICH IN ADVANCE .

12 THEY HAVE AN EXHIBIT THAT THEY WANT TO USE WITH

13 DR . BLOCK IN CROSS RELATING TO TESTING . DR . BLOCK IS NOT

14 GOING TO OFFER ANY TESTIMONY ON THE INFRINGEMENT , AND WE

15 BELIEVE SUCH AN EXHIBIT AND SUCH CROSS-EXAMINATION WOULD BE

16 OUTSIDE THE SCOPE .

17 SO RATHER THAN DO THIS LI VE , WE WOULD LIKE TO RAISE

18 THIS ISSUE IN ADVANCE AND SEEK A RULING FROM YOUR HONOR THAT

19 THEY WOULD BE LIMITED TO THE SCOPE OF DR. BLOCK ' S DIRECT

20 TESTIMONY .

21 THE COURT: YES. THEY ARE CLEARLY LIMITED TO THE

22 SCOPE OF DR . BLOCK'S EXPERT TESTIMONY , UNLESS THEY ARE

23 OFFERING SOME INFORMATION THAT GOES TO IMPEACHMENT. BUT IF

24 YOU'RE NOT OFFERING DR. BLOCK FOR PURPOSES OF --

25 MR . SPROUL : NONINFRINGEMENT .

COMPUTER-AIDED TRANSCRIPTION

Appx3205
 se 3:17-cv-01781-HZ Document 442 Filed 01/24/18 PagelD.24070 Page 1 of 50

1 Christopher S. Marchese (SBN 170239), marchese@fr.com

Seth M. Sproul (SBN 217711), sproul@fr.com
2
Michael A. Amon (SBN 226221 ), amon@fr.com
3 Garrett K. Sakimae (SBN 288453 ), sakimae@fr.com
Tucker N. Terhufen (SBN 311038), terhufen@fr.com
4
Oliver J. Richards (SBN 310972), orichards@fr.com
5 FISH & RICHARDSON P.C.
12390 El Camino Real
6
San Diego, CA 92130
7 Tel: (858) 678-5070, Fax: (858) 678-5099
8
Renee Rothauge, (SBN 271239), reneerothauge@markowitzherbold.com
9 MARKOWITZ HERBOLD PC
1211 SW Fifth Avenue, Suite 3000
10
Portland, OR 97204
11 Tel: (503) 295-3085, Fax: (503) 323-9105
12
Attorneys for Defendant, Seirus Innovative Accessories, Inc.
13
IN THE UNITED STATES DISTRICT COURT
14 FOR THE SOUTHERN DISTRICT OF CALIFORNIA
15
COLUMBIA SPORTSWEAR NORTH Case No. 3: l 7-cv-01781
16 AMERICA, INC., an Oregon
17 corporation, SEIRUS' OPPOSITION TO
COLUMBIA'S MOTION FOR
18 Plaintiff, JUDGMENT AS A MATTER OF LAW
19 AND MOTION FOR NEW TRIAL
V.
20 Judge: Marco A. Hernandez
SEIRUS INNOVATIVE
21 ACCESSORIES, INC., a Utah
corporation
22 Date Action Filed: January 12, 2015
23 Defendants. Trial Date: September 18, 2017

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SEIRUS' OPPOSITION TO COLU1v1BIA'S MOTION FOR TIJDGMENT AS A MATTER OF
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Case No. Case No. 3: l 7-cv-01781
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1 1986: 13-17.) Dr. Block also testified to this fact, and further testified that Omni-Heat
2 falls within the overlapping portion of Fottinger's range (30-40% ), as shown below.
3 (Tr. (Block) at 1563:5-15.)
4 0% 10% 20% 30% 40% SO% 60% 70% 80% 90% 100%
I I
I l
5
[ Fottinger ]
6 ~-~A~- - ~
7
8 y
9
I 270 Patent I
10 ~~ I
11 Omni·Heat Ratios

12 (Demonstrative Ex. DDX-528.) If Orrmi-Heat with coverage of32-37% practices the

13 claimed invention, then Fottinger's range also must practice the claimed invention,
14 because Orrmi-Heat reads on Fottinger's range.
15 4. Testimony Related to the Alleged Coverage Percentage of
Fottinger's Experiment Is Immaterial to the Jury's Verdict
16
Lastly, Columbia spends numerous pages challenging a single calculation put
17
forward by Dr. Block regarding Fottinger's disclosed coverage. This argument is a
18
19 red herring. Dr. Block's testimony on this issue was but one, separable basis of his
opinion that Fottinger anticipated the asserted claims. Because of this, the example
20
of the experiment presented by Dr. Block showed a coverage greater than 30%,
21
which Columbia challenged as not representative of a unit cell. Under Columbia's
22
23 challenge, even if Fottinger's experiment when replicated as a repeating cell does not
show coverage greater than 30%, the example nevertheless shows proof of concept
24
that Fottinger's dots, when applied to a fabric, reflect heat back to a user. Thus it
25
26 confirms Dr. Block's testimony that Fottinger teaches heat reflection.
Columbia would have this Court believe that the jury's entire determination
27
regarding whether Fottinger meets this limitation turns upon this single
28
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SEIRUS' OPPOSITION TO COLUMBIA'S MOTION FOR JUDGMENT AS A MATTER OF
LAW AND MOTION FOR NEW TRIAL
Case No. Case No. 3:17-cv-01781
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1 calculation. This is flatly not true. The jury had more than ample other evidence
2 before it, and the jury's decision is based on the entirety of the evidence, not any
3 single fact. Under the substantial evidence test, a court may not "base its decision
4 on a single piece of evidence and disregard other pertinent evidence when evaluating
5 whether substantial evidence exists in the record." Lowery v. Commr. of Soc. Sec.,
6 342 P. Supp. 2d 694, 698 (E.D. Mich. 2004) (citing Hephner v. Mathews, 574 P.2d
7 359, 362 (6th Cir.1978)). Nor may a court "isolate pieces of evidence [or] speculate
8 as to how the jury analyzed a particular problem." Bray v. Sefeway Stores, Inc. , 392
9 P. Supp. 851, 861 (N.D. Cal. 1975). Rather, the court's duty when evaluating a
10 motion for JMOL is to consider "whether or not, viewing the evidence as a whole,
11 there is substantial evidence present that could support a finding, by reasonable
12 jurors, for the nonmoving party." Quichocho v. Kelvinator Corp. , 546 P.2d 812, 813
13 (9th Cir. 1976) (emphasis added). Here, plainly, regardless of whether Dr. Block's
14 single calculation challenged by Columbia here is correct, more than ample evidence
15 exists on the record to supports the jury' s conclusion. This ends the Court' s inquiry
16 and the jury's conclusion that Pottinger met this limitation must be affirmed.
17 C. The Jury's Finding That Fottinger Teaches Placing Heat-Directing
Elements on the Innermost Surface of the Innermost Layer Is
18
Supported by Substantial Evidence
19
Columbia last challenges the jury's finding that Pottinger teaches that its heat-
20
directing elements can be placed on the innermost surface of its innermost layer.
21
Columbia argues (at 17-18) that Pottinger's disclosures could mean that the heat-
22
directing elements face inward, but do not require that they face inward. Anticipation
23
does not require that Pottinger only orient his dots on the innermost surface of the
24
innermost layer. The relevant question is, "whether one skilled in the art would
25
reasonably understand or infer from the [prior art reference's] teaching that every
26
claim element was disclosed in a single reference." Dayco Prods., 329 P .3d at 1368.
27
Dr. Block provided credible testimony that a person of skill in the art would
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SEIRUS' OPPOSITION TO COLUMBIA'S MOTION FOR JUDGMENT AS A MATTER OF
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Case No. Case No. 3: l 7-cv-01781
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1 have understood or inferred from Fottinger's teachings that the heat-directing

2 elements could be placed on the innermost smface of the innermost layer, and thus,
3 Pottinger anticipates. (Tr. (Block) at 1685:24 - 1686:8.) As Dr. Block explained, a
4 lining fabric, for example, can be the innermost layer, and Pottinger says his dots
5 could be placed on the lining fabric. (Id (Block) at 1625:24- 1626:2.) This is explicit
6 disclosure of the limitation~the disclosure presents an orientation that would satisfy
7 the claims. Additionally, Fottinger's disclosure of "outer fabrics for articles of
8 clothing, in which case the coated face will be on the inside of the article" also
9 explicitly discloses that the heat-directing elements could be placed on the innermost
10 surface of the innermost layer. (Pottinger (Ex. 1040) at 3:48-52.) Pottinger also
11 discloses that, "[h]uman skin has different temperature zones. The different degrees
12 of radiated heat form these zones is reflected by a sheet of the invention and this allows
13 the maintenance of the existing temperature differences." (Id at 2:70-75.) A person
14 of skill in the art could certainly conclude from this disclosure that the heat-directing
15 elements may be (and should be) placed on the innermost surface of the innermost
16 layer.
17 II. The Jury's Obviousness Determination Should Stand
18 A patent is invalid for obviousness "if the differences between the subject
19 matter sought to be patented and the prior art are such that the subject matter as a
20 whole would have been obvious at the time the invention was made to a person
21 having ordinary skill in the art to which said subject matter pertains." 35 U.S.C. §
22 103(a) (pre-America Invents Act); see also KSR lnt'l Co. v. Teleflex, Inc., 550 U.S.
23 398, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007). Obviousness is a question of law
24 based on underlying fact. See Apple Inc. v. Samsung Elecs. Co., Ltd, 839 F.3d 1034,
25 1047 (Fed. Cir. 2016) (en bane), cert. denied, 138 S. Ct. 420 (2017). When a court
26 is faced with a "black box jury verdict," such as the verdict here, the Court must
27 "presume the jury resolved underlying factual disputes in favor of the verdict winner
28 and leave those presumed findings undisturbed if supported by substantial evidence."
30
SEIRUS' OPPOSITION TO COLUMBIA'S MOTION FOR JUDGMENT AS A MATTER OF
LAW AND MOTION FOR NEW TRIAL
Case No. Case No. 3: l 7-cv-01781
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1 Dated: January 24, 2018 FISH & RICHARDSON P.C.

2
By: Isl Christo her S. Marchese
3
Christopher S. Marchese
4 marchese@fr.com
5
Attorneys for Defendant, Seirus Innovative
6 Accessories, Inc.
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Case No. Case No. 3: l 7-cv-01781
Appx4207