2014-1762, -1795

United States Court of Appeals

for the Federal Circuit

NORDOCK, INC.,

PlaintiffAppellant,

v.

SYSTEMS INC, DBA PoweRamp, DBA DLM Inc, DBA McGuire,

DefendantCross-Appellant.

Appeals from the United States District Court for the Eastern District of
Wisconsin in Case No. 11-CV-0118, Judge Rudolph T. Randa.

RESPONSE OF DEFENDANT-CROSS-APPELLANT SYSTEMS, INC.

REGARDING CONTINUED REVIEW

Philip P. Mann
MANN LAW GROUP
1218 Third Ave, Suite 1809
Seattle, Washington 98101
(206) 436-0900
phil@mannlawgroup.com

Attorney for Defendant-

Cross-Appellant Systems, Inc.

COUNSEL PRESS, LLC (888) 277-3259 * (202) 783-7288

 CERTIFICATE OF INTEREST

Counsel for Defendant Cross-Appellant SYSTEMS, INC., certifies the

following:

1. The full name of every party or amicus represented by me is:

Systems, Inc.

2. The name of the real party in interest (if the party named in the caption

is not the real party in interest) represented by me is:

Systems Inc.

3. The parent companies, subsidiaries (except wholly-owned

subsidiaries), and affiliates that have issued shares to the public, of the party or

amicus represented by me are:

None

4. The name of all law firms and the partners or associates that appeared

for the party or amicus now represented by me in the trial court or agency or are

expected to appear in this court are:

MANN LAW GROUP: Philip P. Mann

Timothy J. Billick

WHITAKER LAW GROUP: John Whitaker

AFFELDT LAW OFFICE: David A. Affeldt

i
 TABLE OF CONTENTS

Page

CERTIFICATE OF INTEREST ............................................................................... 1

TABLE OF AUTHORITIES .................................................................................... 4

STATEMENT OF RELATED CASES .................................................................... 5

I. INTRODUCTION ......................................................................................... 1

II. DETAILED RESPONSE ............................................................................... 2

A. THE PROCEEDINGS TO DATE ............................................................ 2

B. THE EFFECT OF THE SUPREME COURTS DECISION IN

SAMSUNG V. APPLE ON THE ISSUES HERE...................................... 3

C. A NEW TRIAL IS NOT NEEDED IN ORDER TO ASCERTAIN

THE ARTICLE OF MANUFACTURE HERE .................................... 4

1. The 754 Patent Itself Defines The Article Of Manufacture ........... 5

2. An Entire Dock Leveler Is Expressly Disclaimed In The 754

Patent ................................................................................................... 5

D. THE JURY HAS ALREADY FOUND, AS A MATTER OF FACT,

THAT SYSTEMS PROFITS ON THE LIP AND HINGE ARE
LESS THAN $15 PER UNIt .................................................................... 7

1. At Trial Nordock Made No Effort To Prove Systems Profits On

The Lip And Hinge Plate ..................................................................... 8

2. Unlike Nordock, Systems Expert Provided Proof That

Systems Profits Under 289 Would Be Less Than $15 Per Unit..... 10

3. Given The Instructions Received, And Given The Testimony

Actually Presented, The Jury Properly Awarded Damages In
This Case ........................................................................................... 13

E. THE DISTRICT COURT PROPERLY DECLINED TO ORDER A

NEW TRIAL .......................................................................................... 13

ii
 F. IN VIEW OF THE SUPREME COURTS REVERSAL OF
APPLE V. SAMSUNG, THIS COURTS REJECTION OF MR.
BEROS COST SAVINGS APPROACH IS, ITSELF, IN
ERROR ................................................................................................... 15

G. NORDOCKS STATEMENT GROSSLY DISTORTS THE

RECORD BELOW AND BORDERS ON THE FRAUDULENT ........ 16

III. CONCLUSION............................................................................................ 19

CERTIFICATE OF SERVICE ............................................................................... 20

CERTIFICATE OF COMPLIANCE...................................................................... 21

iii
 TABLE OF AUTHORITIES

Page(s)

Cases
ABM Mktg., Inc. v. Zanasi Fratelli, S.R.L.,
353 F.3d 541 (7th Cir. 2003) ................................................................................14

Aero Prods. Intl, Inc. v. Intex Recreation Corp.,

466 F.3d 1000 (Fed. Cir. 2006) ............................................................................14

Apple Inc. v. Samsung Elecs. Co.,

786 F.3d. 983 (Fed. Cir. 2915) ...................................................................... 2, 4, 5

King v. Harrington,
447 F.3d 531 (7th Cir. 2006) ......................................................................... 14, 15

Miksis v. Howard,
106 F.3d 754 (7th Cir. 1997) ................................................................................15

Nordock, Inc., v. Systems, Inc.,

803 F.3d. 1344 (Fed. Cir. 2015) ................................................................. 2, 3, 16

Samsung Electronics Co. v. Apple, Inc.,

580 U. S. ____ (2016), 137 S.Ct. 429 ........................................... 3, 13, 15, 16, 19

Silicon Graphics, Inc. v. ATI Techs., Inc.,

607 F.3d 784 (Fed. Cir. 2010) ..............................................................................14

Whitserve, LLC v. Computer Packages, Inc.,

694 F.3d 10 (Fed. Cir. 2012) ................................................................................14

Statutes
35.U.S.C.289 ................................................................................. 2, 3, 4, 10, 13, 17

Rules
Fed. R. Civ. P. 59 ......................................................................................................14

Fed. R. Civ. P. 59(a) .................................................................................................14

iv
 STATEMENT OF RELATED CASES
Counsel is unaware of any other appeal in or from the same civil action or

proceeding as this matter that was previously before this or any other appellate

court.

There are no other cases known to counsel pending in this or any other court

that will directly affect or be directly affected by this Courts decision in the

pending appeal.

v
 I. INTRODUCTION
This case returns to The Federal Circuit following a remand from the United

States Supreme Court. On January 12, 2017, Plaintiff Appellant Nordock, Inc.

(Nordock) unilaterally filed a Statement urging that this Court summarily award

it approximately $900,000, despite the Jurys prior verdict that $46,825 is the total

compensation Nordock should receive. The Court has asked that Defendant

Appellee Systems, Inc. (Systems, Inc.) set forth its position regarding what further

action should be taken following remand. Systems, Inc., provides the following in

response to that request.

For reasons developed more fully below, Systems Inc, believes this Court

should affirm the holding of the District Court and bring this matter to a now long-

overdue conclusion.

Should the Court believe that any issues or questions remain that need to be

addressed, Systems, Inc., respectfully suggests that the Court (1) identify those

issues, (2) receive further briefing on them from both parties, and (3) if believed

helpful, entertain oral argument on those issues.

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 II. DETAILED RESPONSE

A. THE PROCEEDINGS TO DATE

On March 26, 2013, following a six day trial, a twelve-person jury returned

its verdict that only some of the Systems accused products actually infringed

Nordocks U.S. Design Patent No. D579,754 (the 754 Patent) and that $46,835

was the total amount of money...Nordock [is] entitled to receive...for Systems'

infringement. That figure was squarely within the range that Systems damages

expert, Mr. Richard F. Bero, testified at trial would be appropriate if infringement

were found.

On November 10, 2014, the District Court denied Nordocks motion for a new

trial, holding that there was sufficient evidence at trial to support the Jurys verdict

in all respects. Dissatisfied with this result, Nordock appealed.

On September 29, 2015, this Court, in Nordock, Inc., v. Systems, Inc. 803

F.3d. 1344 (Fed. Cir. 2015), vacated the District Courts decision and remanded the

case for a new trial on damages. In so deciding, this Court relied on its then recent

decision in Apple Inc. v. Samsung Elecs. Co., 786 F.3d. 983 (Fed. Cir. 2915), which

held that because, the innards of Samsungs smartphones were not sold separately

from their shells as distinct articles of manufacture to ordinary purchasers, Apple

was entitled, under 35.U.S.C.289, to receive Samsungs profits on the entire

smartphone. Id. at 1002. Relying squarely on Apple v. Samsung, this Court similarly

2
held that because the lip and hinge plate assembly actually claimed and shown in

the 754 Patent was not sold...separate from the leveler as a complete unit, the

relevant article of manufacture must be an entire dock leveler rather than the

structure actually shown, described and defined by the 754 Patent.

On January 28, 2016, Systems, Inc., petitioned for writ of certiorari, seeking

United States Supreme Court review of this Courts decision in Nordock v. Systems.

On Mar 21 2016 the Supreme Court granted certiorari in Apple v. Samsung,

and on December 6, 2016 (1) reversed this Courts holding in Apple and (2)

remanded that case for further consideration. Samsung Electronics Co. v. Apple,

Inc., 580 U. S. ____ (2016), 137 S.Ct. 429.

On December 12, 2016 the Supreme Court granted Systems petition for

certiorari, vacated this Courts decision in Nordock v. Systems, and remanded the

case for further proceedings in light of its decision in Samsung v. Apple; a decision

that reversed the principal authority on which this Court relied.

B. THE EFFECT OF THE SUPREME COURTS DECISION IN

SAMSUNG V. APPLE ON THE ISSUES HERE

In Samsung v. Apple, the Supreme Court clarified that, for purposes of

awarding profits under 35 U.S.C. 289, whether a component or subassembly of

a larger product is sold separately is not the appropriate test for defining the

article of manufacture. In so doing, the Supreme Court clarified that this Court

3
erred in its Apple v. Samsung decision and, by extension, in this case as well. Indeed,

the Supreme Court, expressly referencing the instant case, directly stated that

whether a structure is separately sold is not the proper standard. In the words of the

Supreme Court:

the term article of manufacture is broad enough to embrace both

a product sold to a consumer and a component of that product,
whether sold separately or not. Thus reading article of
manufacture in 289 to cover only an end product sold to a
consumer gives too narrow a meaning to the phrase.

Unlike in Apple v. Samsung where genuine questions exist as to what is the

relevant article of manufacture, no such questions are presented here. Indeed,

given the Supreme Courts clarification, a simple inspection of the subject design

patent reveals that, as a matter of law, the article of manufacture cannot be an

entire dock leveler.

C. A NEW TRIAL IS NOT NEEDED IN ORDER TO

ASCERTAIN THE ARTICLE OF MANUFACTURE HERE
There is no need for a new trial to determine what constitutes the relevant

article of manufacture here. This Court can, and should, hold that the article of

manufacture is a lip and hinge plate, not an entire dock leveler. This reality is

established by the following:

4
1. The 754 Patent Itself Defines The Article Of Manufacture

The sole patent at issue in this case, namely U.S. Patent No. D579,754, makes

clear that the article of manufacture is a lip and hinge plate not an entire dock

leveler as argued by Nordock.

Significantly, the 754 Patent itself is entitled, Lip and Hinge Plate For A

Dock Leveler. If something other than the lip and hinge plate was intended as

the article of manufacture to which the design was applied, the inventor could simply

have entitled his patent Dock Leveler. He did not.

More importantly, nowhere in the 754 patent is an entire dock leveler ever

shown. Indeed, each and every figure contained in the 754 Patent shows only the

lip and hinge plate and never an entire dock leveler. (By contrast, two of the design

patents in Apple were simply entitled Electronic Device and arguably showed an

entire smartphone. Neither had the specificity or express narrowness of the 754

Patent at issue here.)

2. An Entire Dock Leveler Is Expressly Disclaimed In The 754

Patent

A simple examination of the figures in the 754 Patent reveals two clear

things: First, an entire dock leveler is never shown in any of the figures. Figure 1 of

5
the 754 Patent, which is illustrative of all the figures in the 754 Patent, is

reproduced here:

This figure clearly shows only the lip and hinge plate to which the

ornamental design is applied and cannot reasonably be viewed as depicting an

entire dock leveler. Furthermore, the small portion of the dock leveler that is

depicted is shown in dotted or broken lines. That is not a matter of mere stylization

but instead has significant legal meaning. As expressly stated in the 754 Patent

itself:

6
 The deck and deck frame shown in broken lines in FIGS. 1 and
3-7, the drive brackets shown in FIGS. 1-5, the drive bar opening
shown in FIGS. 1-3, and the assist spring mounting bracket
shown in FIG. 1 represent environmental structure in order to
show the claim in a condition of use and form no part of the
claimed design.

(Appx6321)(emphasis supplied). Accordingly, the 754 Patent, both expressly and

through operation of law, makes clear that the article of manufacture to which the

claimed design is applied is the lip and hinge plate assembly and not the entire dock

leveler.

Given these facts and the Supreme Courts ruling, no reasonable jury can

conclude that the article of manufacture to which the ornamental design is applied is

other than the lip and hinge shown in solid lines in the 754 Patent. As a matter of

law, this Court can, and should, hold that the article of manufacture to which the

754 Patent applies is the lip and hinge plate, not the entire dock leveler.

D. THE JURY HAS ALREADY FOUND, AS A MATTER OF

FACT, THAT SYSTEMS PROFITS ON THE LIP AND
HINGE ARE LESS THAN $15 PER UNIT

At trial, the jury was instructed that, As compensatory damages, Nordock

may prove either its own lost profits, or a reasonable royalty for the design patent.

Nordock is not entitled to recover both compensatory damages and Systems profits

on the same sale. (Appx4538)(emphasis supplied). Under the plain language of this

instruction, the jury had the option of awarding either (1) compensatory damages

7
(defined as Nordocks lost profits or a reasonable royalty) or (2) Systems' profits,

but not both, depending on what Nordock was able to prove. Nordock, as Plaintiff,

carried the burden of supplying such proof.

1. At Trial Nordock Made No Effort To Prove Systems Profits

On The Lip And Hinge Plate

The record is clear that at no time did Nordock attempt to prove what Systems

profits were on the lip and hinge plate that are the actual subject of the 754 Patent.

Indeed, at trial Nordocks damages expert, Dr. Stan V. Smith, confirmed that he had

never even seen or read the 754 Patent, much less considered what it actually

covers:

Q. Could you take a look at [Exhibit 18 Copy of 754 Design

Patent]?

A. What about it?

Q. Go ahead and open it up.

A. Yes.

Q. Is that Nordocks patent on its lug hinge lug and hinge plate
design?

A. This is the first time I've seen this, so why don't you tell me what it
is? (Appx6027-6028)(emphasis supplied).

Days later, during rebuttal cross-examination, Dr. Smith confirmed before the

Jury that this was indeed the case:

Q. Thank you. Dr. Smith. Do you recall when Mr. Whitaker cross-
examined you on Wednesday and showed you Plaintiff's Exhibit

8
 18? That's the patent in suit?

A. And what does this have to do with

*** [Evasive answers and colloquy with the Court omitted] ***

Q. Mr. Whitaker showed you [the 754 Design Patent]?

A. Yes.

Q. Asked if you had seen this before. You said, quote, this is the
first I've seen it. And that was Wednesday of last week.

A. Correct.

Q. You confirm that testimony?

A. Yes. (Appx6065-6068)(emphasis supplied).

Finally, again during rebuttal cross-examination, Dr. Smith confirmed that he

made no attempt to consider profits on what the '754 Design Patent actually covered

but, instead, looked at the entire dock leveler:

Q. The jury has seen this many times. We all know what it covers.
Your answer is that you did not calculate profits, System'
profits, on what is actually covered by this patent. That's your
testimony?

A. Not on the patent. On the leveler. (Appx6608-6609)

Having offered absolutely no proof whatsoever what Systems profits were on

what is actually covered by the 754 Patent, there is little surprise that the Jury

entered 0 when asked to answer that question.

9
2. Unlike Nordock, Systems Expert Provided Proof That
Systems Profits Under 289 Would Be Less Than $15 Per
Unit
Unlike Dr. Smith, Systems damages expert, Mr. Bero, painstakingly analyzed

the actual design patent at issue, the relevant financial records and testified at trial

that Systems profits on the hinge and lip plate actually shown and claimed in the

subject patent were less than $15 per unit.

During his direct examination, Mr. Bero properly noted that the '754 Design

Patent includes a single claim reading, The ornamental design of a lip and hinge

plate for a dock leveler, as shown and described. (Appx60). Indeed, during cross-

examination, Mr. Bero was asked:

Q. Now, is this case about a lug? Is this a design patent case for a
lug?

A. Well, it's a design patent case for an ornamental design of a

lip and hinge plate which I understand incorporates a lug.
(Appx5536)(emphasis supplied).

Despite Nordock's counsel's attempts to get Mr. Bero to testify to the contrary,

Mr. Bero continued to correctly note that the article of manufacture to which the

ornamental features of the '754 design is applied is not a dock leveler, but, rather,

only a lip and hinge plate:

A. Well, you asked me multiple questions. When you say "the whole
thing," are you referring to --

Q. The whole front end design.

10
 A. It's the lip and hinge plate. The ornamental design of the lip and
hinge plate.

Q. The front end design.

A. Yeah, but when you say "the whole thing" I want to make
clear we're not talking about the whole dock leveler.
(Appx5537)(emphasis supplied)

Continuing the attack, Nordock's counsel tried to trip up Mr. Bero by asking

about another, prior design patent case Mr. Bero had been involved with wherein a

design patent directed to a drill bill (Appx6659-6661) was involved:

A. In that case I think this is what you're getting at is I

quantified the defendant's profits on the entire drill bit in that
case. Because as you can see here, it says the 'ornamental design
for a drill bit.' That's a whole product. (Appx5540)(emphasis
supplied).

On redirect, Mr. Bero was asked the obvious question Nordock's counsel was

apparently afraid to, namely, why Mr. Bero testified that profits were recoverable on

the entire drill bit in the earlier case while, in the instant case, profits on the entire

dock leveler were not. Mr. Bero answered clearly and succinctly:

Q. Okay Mr. Bero, Mr. Sokol asked you why in respect to [the drill
bit] case it was your opinion that damages should be awarded on
the entire -- profits on the entire drill bit.

A. Well, the reason was because it says in the claim, it's says "the
ornamental design for a drill bit." It's different than --so -- well,
the drill bit was sold. That's the product that was sold.
There's a picture, you can see the drill bit. It's the whole
drill bit.

11
 And that's different than the case we have here where we have
-- I don't know if you can put it up there -- but an ornamental
design of a lip hinge plate and it says "for a dock leveler." I
understand it, is the lip and hinge plate. It doesn't cover an
entire dock leveler. It's just a part of the product. So that's a
big difference in those two cases.

***

Q. Are there any figures in this [754] patent that you're aware
of that show an entire dock leveler?

A. No. (Appx5562-5564)(emphasis supplied).

Again, Mr. Bero clearly and consistently testified at trial that the relevant

structure was the lip and hinge plate, not the entire dock leveler, and, unlike Dr.

Smith, actually determined what Systems profit on that structure actually was.

In answering that important question, Mr. Bero clearly testified that such

profits would be less than $15 per unit, a figure he had already calculated would

be an appropriate reasonable royalty:

A. So on the that lip and hinge plate design the profitability

attributable that Systems earned this is defendant's profits
was something less than $15 per unit. Its the same number as
the royalties damages. Its actually less than that.
(Appx5562)(emphasis supplied).

To summarize, at trial, Mr. Bero testified, and the Jury clearly heard, that,

under a reasonable royalty calculation, the appropriate damages would be $15 per

unit, and that under a Systems profits approach, properly taking into account that

12
the 754 Patent does not cover an entire dock leveler, the damages would be

actually less than that.

3. Given The Instructions Received, And Given The Testimony

Actually Presented, The Jury Properly Awarded Damages
In This Case

The record is clear. Nordock presented no evidence whatsoever as to what

profits Systems earned on the article of manufacture actually covered by the 754

Patent. Only Mr. Bero made an effort to determine such profits and testified that

such profits would be less than the $15 per unit he calculated would be the

appropriate reasonable royalty.

Given the Courts clear instruction that Nordock could (if proved) recover

either compensatory damages, (i.e. a reasonable royalty) or Systems profits, but

not both, and given that the Jury had a choice of awarding either $15 per unit as a

reasonable royalty, or less than $15 per unit as Systems profits, there is no surprise

that the Jury awarded the higher number as a reasonable royalty and properly entered

0 as a profits award.

E. THE DISTRICT COURT PROPERLY DECLINED TO

ORDER A NEW TRIAL
With the Supreme Courts recent clarification of the law under 289 in

Samsung v. Apple, it should now be clear that the District Court properly declined to

order a new trial and that the final judgment of the District Court should be affirmed.

13
Mr. Beros approach of taking into account the actual article of manufacture covered

by the 754 Patent, and not simply calculating profits on an entire dock leveler, has

now been determined to be correct. Nordock elected to ignore this issue entirely

(indeed, its expert, Dr. Smith, declined even to look at the 754 Patent) and offered

no proof whatsoever on this critical issue.

This Court reviews the denial of a Rule 59 motion for a new trial on an abuse

of discretion standard. Whitserve, LLC v. Computer Packages, Inc., 694 F.3d 10, 26

(Fed. Cir. 2012). In doing so, this Court applies the relevant regional circuit law, in

this case that of the Seventh Circuit. Silicon Graphics, Inc. v. ATI Techs., Inc., 607

F.3d 784, 798 (Fed. Cir. 2010).

In the Seventh Circuit, a motion for a new trial should succeed only if the

verdict is against the manifest weight of the evidence. ABM Mktg., Inc. v. Zanasi

Fratelli, S.R.L., 353 F.3d 541, 545 (7th Cir. 2003) (citing Fed. R. Civ. P. 59(a)); see

also, Aero Prods. Intl, Inc. v. Intex Recreation Corp., 466 F.3d 1000, 1016-17 (Fed.

Cir. 2006).

To satisfy this standard, Nordock must demonstrate that no rational jury could

have rendered a verdict against it. See, King v. Harrington, 447 F.3d 531, 534 (7th

Cir. 2006). When making this evaluation, the Court views the evidence in a light

most favorable to the non-movant and cannot re-weigh the evidence or make

credibility determinations. Id.

14
 The Court will sustain the verdict where a reasonable basis exists to support

the jurys verdict. Id. A new trial may be granted only if the jurys verdict is against

the manifest weight of the evidence, id., or if the trial was unfair to the moving

party. Miksis v. Howard, 106 F.3d 754, 757 (7th Cir. 1997).

Given the Supreme Courts clarification of the law, Nordock cannot meet

these strict standards. Here, based on Mr. Beros unchallenged testimony, there was

sufficient basis for the Jury to conclude that profits on the actual article of

manufacture, namely the lip and hinge plate, were less than $15 per unit. In light of

the actual evidence presented at trial, and with the Supreme Courts clear directive,

the Jurys verdict was hardly, against the manifest weight of the evidence.

F. IN VIEW OF THE SUPREME COURTS REVERSAL OF

APPLE V. SAMSUNG, THIS COURTS REJECTION OF MR.
BEROS COST SAVINGS APPROACH IS, ITSELF, IN
ERROR
This Courts rejection of Mr. Beros cost savings approach is itself

erroneous in light of the Supreme Courts holding in Samsung v. Apple. At trial,

Systems President, Edward McGuire, testified that, by adopting a lug and hinge

plate structure, Systems Inc. was able to reduce its manufacturing costs by

approximately $5 per unit. All else being equal, this would necessarily increase

Systems profits by precisely that amount. Mr. Bero reasonably relied on this

information in concluding that the profits directly attributable to the lug and hinge

15
plate (i.e., the article of manufacture actually shown in the 754 Patent) would be

around that amount and, in any event, less than $15 per unit.

In its prior decision, this Court held that Mr. Beros cost savings approach

was necessarily erroneous because his testimony was premised on an incorrect

understanding of the relevant article of manufacture, and failed to take into account

this Courts (now erroneous) view that, it is clear that the article of manufacture at

issue is a dock leveler. 803 F.3d. 1344, 1355. However, as is now made clear by

the Supreme Courts holding in Samsung v. Apple, it is this Court, not Mr. Bero, who

misunderstood the relevant article of manufacture.

If this Court accepts, as it should, that the relevant article of manufacture is

not the entire dock leveler but, rather, the lip and hinge plate actually shown and

described in the 754 Patent, Mr. Beros analysis is, in truth, on sound legal and

factual footing and must be accepted.

G. NORDOCKS STATEMENT GROSSLY DISTORTS THE

RECORD BELOW AND BORDERS ON THE FRAUDULENT
Throughout its Statement, Nordock falsely and inaccurately claims that

Systems never argued that the relevant article of manufacture was other than the

entire dock leveler, and somehow agreed that the entire dock leveler was the

appropriate structure. Given the extensive trial testimony of Mr. Bero quoted in

Section D above, how Nordock can make this claim defies explanation.

16
 Mr. Bero clearly testified that, for purposes calculating Systems profits under

289, it was necessary to focus on the lip and hinge plate actually shown in the 754

Patent. To the extent Nordock hopes, if challenged, to parse this by claiming

Systems never uttered the magic words, article of manufacture at trial, even this is

untrue. During his direct examination, Mr. Bero clearly testified:

A. Another form of damages for design patents is -- comes from

Section 289. And what this says is that if you look at number 1 it
applies the patented design, in this case the ornamental design of
a lip and lug -- lip and plate hinge. It says, "Applies the patented
design, or any colorable imitation thereof, to any article of
manufacture for the purpose of sale." So the article of
manufacture. What is the article of manufacture? Well, the
design shows -- the patent design shows a lip and plate hinge.
(Appx5496-5497) (emphasis supplied).

Nor do the jury instructions support Nordocks baseless claim. None of the

jury instructions references an entire dock leveler. On the contrary, the relevant term

used in the instructions was infringing product. Throughout the trial, Systems,

and its witnesses, consistently and clearly maintained that the infringing product (if

any) was the lip and hinge plate, not an entire dock leveler. Again, Nordock plays

fast and loose with the facts to convey the entirely erroneous (indeed preposterous)

impression that Systems somehow agreed that the article of manufacture was the

entire dock leveler. Nothing could be further from the truth.

Finally, Nordocks claim is belied by the fact that, in Nordocks opening brief

at the very beginning of this appeal, Nordock claimed that Systems trial counsel

17
(the undersigned) somehow violated the rules by stating in his closing argument to

the Jury that the relevant article of manufacture was the lip and hinge plate, not the

dock leveler itself. (See Nordock Opening Brief at pp. 50-51 and Appx6122-6123.)

Why Nordock would initially and formally challenge an argument that it now claims

was never made defies explanation as well.

Nordocks false claim that Systems somehow agreed what the article of

manufacture is suffers from trying to prove too much. If, as Nordock claims,

everyone agreed that an entire dock leveler is the appropriate article, and no one

argued or testified to the contrary, how is it that the Jury came up with a number

Nordock contends is inadequate? Obviously, Systems and its witnesses argued that

profits are only available as to the lip and hinge plate and the Jury agreed. Nordocks

gross misrepresentation of the proceedings below cannot change that reality.

18
 III. CONCLUSION
For the foregoing reasons, Systems believes that the record below, together

with the Supreme Courts decision in Samsung v. Apple, are sufficient for this Court

to affirm the final judgment of the District Court.

Should this Court determine that any particular issues remain that need to be

addressed, Systems respectfully asks that this Court identify such issues, entertain

further briefing, and, if helpful, oral argument on them.

Such action by the Court is respectfully requested.

Dated: March 2, 2017 Respectfully submitted

______________________
Philip P. Mann
MANN LAW GROUP
1218 Third Ave, Suite 1809
Seattle, Washington 98101
(206) 436-0900
phil@mannlawgroup.com

Attorney for Defendant-

Cross-Appellant Systems, Inc.

19
 United States Court of Appeals
for the Federal Circuit
Nordock, Inc. v. Systems Inc., 14-1762, -1795

CERTIFICATE OF SERVICE

I, Robyn Cocho, being duly sworn according to law and being over the age

of 18, upon my oath depose and say that:

Counsel Press was retained by, Attorneys for Appellant to print this

document. I am an employee of Counsel Press.

On March 2, 2017 counsel for Appellant authorized me to electronically file

the foregoing RESPONSE OF DEFENDANT-CROSS-APPELLANT

SYSTEMS, INC. REGARDING CONTINUED REVIEW with the Clerk of

Court using the CM/ECF System, which served via e-mail notice of such filing to

all counsel registered as CM/ECF users, including any of the following:

JEFFREY S. SOKOL
SOKOL LAW OFFICE
828 N. Broadway, Suite 400
Milwaukee, WI 53202
Telephone: (414) 272-7200
Facsimile: (414 272-7204
Attorney for Plaintiff-Appellant

March 2, 2017 /s/ Robyn Cocho

Counsel Press

20
 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE
REQUIREMENTS

1. This motion complies with the type-volume limitation of Federal Rule of

Appellate Procedure 32(a)(7)(B) or Federal Rule of Appellate Procedure 28.1(e)

X The motion contains 3,998 words, excluding the parts of the motion
exempted by Federal Rule of Appellate Procedure 27(d)(2) and Fed.
Cir. R. 27(d).

2. This motion complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
Appellate Procedure 32(a)(6)

X The motion has been prepared in a proportionally spaced typeface

using MS Word 2013 in a 14 point Times New Roman font or

The motion has been prepared in a monospaced typeface using

in a ___ characters per inch_________ font.

Dated: March 2, 2017 Respectfully submitted

______________________
Philip P. Mann
MANN LAW GROUP
Attorney for Defendant-Cross-
Appellant Systems, Inc.

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