U.S. Circuit Judge Kimberly A. Moore pointed out to Craig Martin of Willkie Farr & Gallagher LLP, counsel for Provisur, that its expert, Keith Vorst, was able to configure the Weber machine to advance fill the pockets only when using a settings screen that’s inaccessible to users.
“Only a Weber technician or the Weber factory can alter the prior to delivery. … But you the user can’t do that,” Judge Moore told Martin. “That’s the testimony of record, so how is this device therefore configurable such that a user could utilize it in an infringing way?”
Martin replied that Vorst testified “repeatedly” that he was able to use the machine’s interface to reconfigure the machine to advance to fill.
“His testimony was, ‘I used the … screen to easily configure this in an advance-to-fill mode.’ And that’s what he testified to,” Martin said. “Nobody cross-examines him and says ‘you have to go beyond a wall’ or ‘you have to … have a technician there.'”
Beyond that, he said, there was no dispute at trial about whether an end user could reconfigure the machines.
