[00:00:02] Speaker 04:
our case today is two zero one four dash one seven nine seven addiction and detoxification versus carpenter oh i'm i'm sorry we have an admission today

[00:00:17] Speaker 01:
motion-by-chair thank you judge more uh... today i've been mission uh... when i walk with david o'connor who's a member of the bar and good standing with the high court of california i've knowledge of his credentials and i'm satisfied that he doesn't the necessary qualification mr o'connor has been one of my clerks for the past sixteen months and it has been a tremendous experience for me he's definitely helped me think

[00:00:45] Speaker 01:
more deeply about the various cases we've confronted over the past year and four months, and I believe you'll be an exceptional member of the power bar.

[00:00:56] Speaker 01:
Smart, talented, skilled, and has plenty of character, and I thank him for his service.

[00:01:01] Speaker 04:
Do you think we should mold this one over?

[00:01:05] Speaker 04:
I've had the pleasure of getting to know David in his time here working for Judge Chen.

[00:01:10] Speaker 04:
I think I even got to chat with him quite a bit on the very first case he ever worked on for you, if I remember right.

[00:01:17] Speaker 04:
on almost the first day and i can say that i very much enjoyed the experience and echo your praises and i know that you'll be a valuable contribution to our bar i'd ask our court to please swear you in

[00:01:46] Speaker 04:
okay now uh... uh... case number two zero one four dash one seven nine seven addiction and detoxification versus carpenter is it Mr. is it Mirabai?

[00:02:02] Speaker 00:
I'm Tom Marable.

[00:02:03] Speaker 00:
Marable, okay.

[00:02:05] Speaker 00:
Thank you for the combination to allow me to sit.

[00:02:14] Speaker 00:
I think my presentation, I appreciate that a great deal.

[00:02:18] Speaker 00:
I hope it won't cause any inconvenience to the court whatsoever.

[00:02:22] Speaker 00:
Thank you.

[00:02:23] Speaker 05:
We'll be fine.

[00:02:24] Speaker 05:
We're in happy circumstances.

[00:02:25] Speaker 05:
We're very close, and therefore we can hear you quite well.

[00:02:28] Speaker 05:
Thank you.

[00:02:29] Speaker 00:
Thank you.

[00:02:30] Speaker 00:
I appreciate that.

[00:02:34] Speaker 00:
Your Honor, this is relatively a, in our belief, a simple appeal.

[00:02:39] Speaker 00:
There's two main issues that are before the court.

[00:02:43] Speaker 00:
One was the district court's ruling that the complaint was insufficient in regard to the allegation of a breach of the 411 patent by the defendant as being a criteria in terms of the insufficiency of stating

[00:03:06] Speaker 00:
The court had mentioned in the opinion from the Eastern District that it was formalistic and followed a template.

[00:03:16] Speaker 00:
It's our about position that the, quote unquote, notice requirement in regards to federal practice, we're not a fact pleading system in the federal court, reflects that the petition or the complaint that was filed is more than sufficient

[00:03:34] Speaker 04:
do you think the original complaint is more than sufficient to satisfy Form 18?

[00:03:42] Speaker 00:
It's our understanding that our initial complaint, which we've used before, I represent the appellant, the initial developer of the patent and also the patent owner.

[00:03:56] Speaker 00:
So it's not an assignment of a patent or anything of that nature as was alleged in the response brief from the appellant.

[00:04:04] Speaker 01:
I understand the other side saying, characterizing the complaint as

[00:04:10] Speaker 01:
alleging no facts in terms of what activities are actually infringing your patent directly other than simply repeating the legal standard for infringement that you own a patent and the other side is taking action that infringes that patent.

[00:04:34] Speaker 01:
And if that's the case, then is there a problem with meeting the Form 18 requirement in that instance?

[00:04:43] Speaker 00:
In all due respect, it's our position that the recitation of the defendant's violation of the 411 patent is owned by the appellant, that the

[00:05:00] Speaker 00:
Ownership is still in his possession.

[00:05:03] Speaker 00:
The patent is still valid.

[00:05:05] Speaker 00:
It involves a rapid detoxification process for heroin addicts.

[00:05:12] Speaker 00:
My client is a medical doctor.

[00:05:15] Speaker 00:
We believe that the requirements of the federal system, at least based on the field code, is that essentially that we give a sufficient notice to the department that in fact a loss is being brought against him.

[00:05:28] Speaker 00:
and being brought against him for a specific cause of action.

[00:05:34] Speaker 00:
And we believe we sufficiently provided that information in our complaint.

[00:05:40] Speaker 00:
If we did not, mind you, we had made a motion to amend the complaint, which was denied by the court.

[00:05:48] Speaker 00:
The court appeared to rest a significant amount of the argument.

[00:05:54] Speaker 00:
on the fact that we had not given pre-notice to the defendant that a suit was being brought for violation of a 411 patent.

[00:06:07] Speaker 00:
It's our allowed position that the pre-notice requirement is not there.

[00:06:13] Speaker 00:
It is not required by

[00:06:16] Speaker 01:
uh... any federal uh... statute or any case uh... we have numerous cases we've started mister marable yes uh... let's assume for the moment that we agree with you that form 18 as a matter of law does not require the patent owner to provide the defendant some type of pre-complaint filing notice of infringement before the actual filing of the complaint

[00:06:44] Speaker 01:
At the same time, it's my understanding that this court has a de novo review here and could potentially affirm the dismissal of your complaint on an alternative ground.

[00:06:56] Speaker 01:
For example, the other side is claiming that there's still an insufficiency of meeting Form 18's requirements, and one of them is the fact that

[00:07:07] Speaker 01:
that maybe there wasn't enough lead in terms of identifying what actual actions the defendant does to infringe your patent.

[00:07:17] Speaker 01:
I'm thinking about paragraph 12 of the complaint, which says that the defendant is engaging in certain procedures, I think it's the word, that infringe the method patent.

[00:07:32] Speaker 01:
And I guess what I'm wondering is, do you think that if your patent was for an apparatus, for example, and your complaint said the defendant's products are infringing my apparatus patent claims, do you think that would be sufficient for Form 18?

[00:07:56] Speaker 00:
It may not be if we're talking about an apparatus, but we're talking about a process here.

[00:08:02] Speaker 00:
uh... the four-leavened pen pertains to a uh... future for a doc d rapid detoxification uh... for heroin addiction and uh... it's very specific so when we say procedure we're referring directly to the uh... nature of the procedure that's encompassed within the four-leavened pen uh... it's my understanding that uh... perhaps if we're talking about a product notification in regard to a mark

[00:08:29] Speaker 00:
violation of a mark or something more specific may in fact be appropriate.

[00:08:34] Speaker 00:
But in terms of the standard to notify, and I assume we're working under the assumption that what we are doing in terms of the complaint under the notice system is we're informing the defendant that he's being sued or she's being sued, that there is a cause of action against

[00:08:54] Speaker 00:
was enough specificity that they realized what it relates to, which in this case would be the 411 patent, and that we seek redress from the court in regard to the petition.

[00:09:06] Speaker 00:
Now, I think the district court in Michigan had the option, if they were concerned with the phraseology of the complaint,

[00:09:18] Speaker 00:
to allow for the allow for the amendments of the complaint to comport to whatever whatever criteria that that judge would in his discretion seek appropriate but to dismiss the case on the basis of the on the basis of the quote unquote lack of notice under form 18 together with the denial of the

[00:09:46] Speaker 00:
uh... motion to amend the complaint really places my client in the conundrum uh... if we were to rely on this ruling what that means is that uh... my client is effectively dead in the water they do not have the option to uh... uh... give notice uh... again of some manner give notice under the 401 that reinstitute a lawsuit because i believe this appears to be a substantive

[00:10:16] Speaker 00:
dismissal of the case.

[00:10:22] Speaker 05:
You presumably have done a pre-filing investigation in this case of the defendant's activities, right?

[00:10:30] Speaker 05:
Excuse me?

[00:10:30] Speaker 05:
You've done a pre-filing investigation of the defendant's activities.

[00:10:33] Speaker 05:
Oh yes, yes you're right.

[00:10:34] Speaker 05:
And you've satisfied yourself that they do in fact use a diarrhea suppressant in their process?

[00:10:43] Speaker 00:
In all the cases we're involved in, one of the key issues will be is whether or not there is an anesthetic suppressant being used and a diuretic suppressant.

[00:10:57] Speaker 00:
And quite candidly,

[00:11:00] Speaker 00:
That seems to be the substance of all the cases because the typical defense is that we don't use the whole thing, we just use some of the procedure.

[00:11:10] Speaker 05:
That would sound like a pretty good defense if in fact it's true.

[00:11:13] Speaker 05:
They have four limitations, they only perform three.

[00:11:17] Speaker 00:
The problem that we have from our perspective is our understanding, and I'm not a doctor, that to do this procedure

[00:11:26] Speaker 00:
without using an antidiuretic and without either using an anesthetic, places the patient at risk, literally of death.

[00:11:35] Speaker 00:
There's a hydration issue that becomes involved.

[00:11:40] Speaker 05:
I was really trying to get at a different point.

[00:11:44] Speaker 05:
The question I had really is, have you satisfied yourself based on information?

[00:11:50] Speaker 05:
that they do in fact use a diarrhea suppressant?

[00:11:55] Speaker 05:
Or are you guessing that they do because it would seem exercising due caution should?

[00:12:05] Speaker 00:
From the information we have, plus also again based on the premise that if you don't use a diuretic, the patient faces cardiac arrest.

[00:12:18] Speaker 00:
We've had conversations... When you say from the information and plus... Plus also we have... I'm really trying to probe what the information is that you have that they use, affirmative information that they use... We have information from a woman in Detroit that's also engaged in this type of activity, that these defendants were also using the same procedure.

[00:12:45] Speaker 05:
with a diarrhea suppressant.

[00:12:48] Speaker 00:
Yes.

[00:12:48] Speaker 00:
And that's on the basis of which we investigated the defendants.

[00:12:54] Speaker 04:
and uh... look at it but based on the woman providing you with information yes and also the information that works i thought that the problem with the website doesn't indicate that they use the diary retic suppression stupid the website does not indicate that that they use the diuretic suppressant i understand that but doesn't am i mistaken is there anything on their website that indicates that

[00:13:17] Speaker 00:
We're working, we work on the premise that we have physicians that we consult with and nurse practitioners.

[00:13:25] Speaker 04:
My question was specific.

[00:13:27] Speaker 04:
Does their website indicate they use a diuretic suppressant?

[00:13:33] Speaker 00:
I don't believe it does.

[00:13:34] Speaker 04:
But you cited their website as some of the evidence that contributed to your investigation.

[00:13:39] Speaker 04:
But I'm trying to understand precisely the nature of that evidence.

[00:13:44] Speaker 04:
So this woman, what precisely did she say that gave you reason?

[00:13:47] Speaker 04:
Was she a patient who actually had them perform the procedure and she can tell you, yes, in fact, they gave me a diuretic suppressant?

[00:13:55] Speaker 04:
Was she a former employee of theirs who witnessed them doing this and administering a diuretic suppressant?

[00:14:01] Speaker 04:
What is the nature of the information you have?

[00:14:05] Speaker 00:
as i said that the information from the uh... from the woman that was also engaged her and her uh... the rockwood gave me this rapid uh... rapid detox working with these defendants the information that she worked for these defendants we were advised that these defendants were engaged in that activity

[00:14:30] Speaker 00:
by the individuals that were also engaged in that process at another organization up in Detroit.

[00:14:38] Speaker 04:
So a totally separate organization that performs a process who happens to use, they happen to use a diuretic.

[00:14:46] Speaker 00:
Yes.

[00:14:47] Speaker 04:
What were they able to tell you factually about how these people are performing the process?

[00:14:53] Speaker 00:
They informed us that in fact, the particular defendants here learned the procedure from those particular women, had worked with them at some point, and had broken off and started their own owned enterprise using this particular procedure.

[00:15:17] Speaker 00:
so uh... the information that uh... that essentially the process was part to them the individuals that we have information in detroit it was the information but also as i said uh... medical testimony or medical information that they've got that you cannot you know how they're dead in legal documents their lawyer has asserted in debris to this court that their client had never

[00:15:46] Speaker 04:
does not and will not use a diuretic suppressant in any way.

[00:15:51] Speaker 04:
Are you suggesting that it's possible we should bring them up on charges for unethical conduct for making a false statement?

[00:16:00] Speaker 00:
Well, it's a matter of proof, is it not?

[00:16:03] Speaker 04:
No, I don't actually think so.

[00:16:04] Speaker 04:
I think when a lawyer makes a statement of fact and signs a document representing what his client does,

[00:16:12] Speaker 04:
that that's not a matter of proof is it i mean that's a matter isn't at that point he on the hook for ensuring uh... the accuracy of what he is representing to the court i believe that would of course be up to the discretion of the court but uh... these allegations were not made lightly and uh... so if the case is remanded for any reason if we find your complaint was in fact sufficient and we remand this case

[00:16:40] Speaker 04:
And if they move for summary judgment of non-infringement and they put forth affidavits of their doctors that say, we do not, we have not administered any diuretic suppressants in our use of our process, doesn't that end this case?

[00:16:55] Speaker 00:
I think what it also presents is that we have not even engaged in discovery.

[00:17:00] Speaker 00:
We're being knocked out of the box before we have the ability

[00:17:05] Speaker 04:
to be able to do it every is not a fishing expedition or you have to have proof that they infringe the elements of these claims it's your obligation before bringing proof before bringing suit to have proof if they are dating on the record that they have not perform this process do not perform it and all you have is a woman who said well i trained them

[00:17:27] Speaker 04:
And when I trained them, I taught them to do this, that doesn't mean they're doing it.

[00:17:31] Speaker 04:
I train my kids to do all kinds of stuff every single day.

[00:17:34] Speaker 04:
And you know what?

[00:17:35] Speaker 04:
Probably I get a 50% realization rate.

[00:17:39] Speaker 04:
What is the proof that they're actually doing that, that they're using a diuretic suppressant?

[00:17:44] Speaker 00:
Well, I think that's an issue of discovery and an actual trial in this matter.

[00:17:50] Speaker 00:
If we would find out in discovery in some manner or form.

[00:17:52] Speaker 04:
If there is a trial in this matter under those circumstances, it will be a travesty of justice.

[00:17:59] Speaker 00:
to be able to move from a complaint to engage in discovery.

[00:18:02] Speaker 04:
When you have absolutely no evidence or proof that they're performing one of the elements of the patent claim, when you file a complaint against them where you even forgot to put their name in multiple places because it's a form complaint that reads identically to all the other complaints you filed against everybody else.

[00:18:17] Speaker 04:
I don't know if you realize that.

[00:18:18] Speaker 04:
The complaint you filed in this case doesn't even use their name in several spots.

[00:18:21] Speaker 04:
It uses the name of the previous people you filed with the same complaint.

[00:18:25] Speaker 04:
Yes, I would say under those circumstances it feels a lot more like a fishing expedition to me than it feels like a lawsuit.

[00:18:33] Speaker 00:
With all due respect, I don't believe that what we're engaged in is a fishing expedition where we initiate a complaint based upon the information that we have.

[00:18:43] Speaker 00:
We believe that's sufficient information to be able to initiate a complaint within the federal system and to engage

[00:18:50] Speaker 00:
Of course, further engage in discovery and all the other things that are appropriate to be able to find the facts and join the issue finally to trial.

[00:19:01] Speaker 00:
We're not trying the case by a complaint being filed, mind you.

[00:19:06] Speaker 00:
I know that there is a tendency today to use the motion to dismiss for a way to circumvent the process of discovery and also the process of trial in these matters.

[00:19:18] Speaker 00:
But I think to some degree, we're missing the point in regard to my client believing that his patent rights have been violated.

[00:19:28] Speaker 00:
The information that we have, we can't go into their office.

[00:19:32] Speaker 00:
We can't access their medical practice.

[00:19:36] Speaker 00:
We cannot do that until we have the penumbra of the court to be able to engage in discovery to determine, in fact, the degree and extent

[00:19:48] Speaker 00:
but merely trying to base it on what what said is said or not said on the website seems to me to be a very very limited window for a complainant to be able to proceed with litigation.

[00:20:04] Speaker 04:
Okay, we'll restore a few minutes of your rebuttal time.

[00:20:08] Speaker 04:
Why don't we hear from opposing counsel.

[00:20:11] Speaker 00:
Thank you, Your Honor.

[00:20:11] Speaker 04:
Mr. Hollenberger.

[00:20:13] Speaker 04:
Am I saying that one right?

[00:20:14] Speaker 04:
Hollenberger.

[00:20:21] Speaker 04:
So do you think, Mr. Hullaburger, that patent law requires giving someone written notice before a complaint is filed?

[00:20:31] Speaker 02:
Good afternoon, Your Honor.

[00:20:31] Speaker 02:
Mr. Hullaburger, may it please the Court.

[00:20:33] Speaker 02:
I believe under the patent law, the statute, such notice is not required.

[00:20:37] Speaker 02:
But I believe that if you're going to come into a district court and file a complaint, and then you're going to rely on Form 18, then you have to, in fact, follow Form 18.

[00:20:47] Speaker 02:
You don't get to pick and choose what you're going to do on Form 18.

[00:20:50] Speaker 02:
You have to follow what is required.

[00:20:53] Speaker 02:
In the oral argument, we just heard about the facts.

[00:20:56] Speaker 02:
Here on, I'd like to say that even if this panel were to determine that written notice is not required under the law on Form 18, Judge Chen, I think you said as a matter of law, doesn't require it.

[00:21:07] Speaker 02:
If that is your decision, for many reasons, this complaint still fails to plead any facts.

[00:21:13] Speaker 02:
And I would distinguish, and I would point to Inred Bill of Lading and KTAC, where both cases relied on the defendant's website.

[00:21:21] Speaker 02:
I believe it was KTAC that relied on the defendant's patent.

[00:21:24] Speaker 02:
And there was a lot of information that was in, I believe Inred Bill of Lading had a hundred pages of complaint and exhibits.

[00:21:30] Speaker 05:
Well, that may be, but the ultimate holding, as I read it of both cases, was that regardless of what the Supreme Court may have said in Twombly and Iqbal with respect to the rules that apply outside of the forms, if you are within the context of the forms, and Form 18 is directed to patent infringement,

[00:21:51] Speaker 05:
then that's a safe harbor.

[00:21:55] Speaker 05:
You've already argued that it's a safe harbor if you follow the provisions, including a provision which at least seems not wholly applicable here on pre-filing notice, but you do acknowledge that the general rule of ICBAL and QAMLI don't seem to apply in the Form 18 context, do you not?

[00:22:21] Speaker 02:
Well, obviously, in K-Tech and Irreliability, this court said the form is controlled.

[00:22:26] Speaker 02:
I think the Supreme Court pretty much has determined that issue for you in six more months, assuming Congress enacts the amended civil procedure rules where they eliminate the forms in Rule 84.

[00:22:36] Speaker 02:
I think this discussion doesn't happen anymore.

[00:22:38] Speaker 05:
Well, it may not, but... It still is now.

[00:22:41] Speaker 05:
Right, unless we hold this case, well, even if we hold this case for six months,

[00:22:44] Speaker 05:
The rules that apply will be the rules that were applicable at the time of filing, I assume.

[00:22:49] Speaker 02:
Certainly.

[00:22:49] Speaker 02:
Well, let me address your question about whether or not this notice provision in paragraph 4 of Form 18.

[00:22:57] Speaker 02:
The issue here is, in particular, this is a method.

[00:23:00] Speaker 02:
And I would propose, and do argue in our brief, that if you're going to strictly construe this Form 18, you have to strictly construe it.

[00:23:06] Speaker 02:
We've already, as this Court has said, excluded indirect infringement from Form 18.

[00:23:11] Speaker 02:
We've already excluded willfulness from Form 18.

[00:23:14] Speaker 02:
then I would say we have to look at Form 18 as to what it is.

[00:23:18] Speaker 02:
It is a complaint for a direct infringement of an apparatus claim.

[00:23:22] Speaker 02:
And it makes sense, I think, if you look at paragraph 4, which talks about complying with the statutory requirement of placing notice on the letters of patents, or of the letters of patents on all electric motors it manufactures.

[00:23:36] Speaker 02:
And in response, the appellant said, this is a method.

[00:23:39] Speaker 02:
We don't have to do notice.

[00:23:41] Speaker 05:
Assume.

[00:23:44] Speaker 05:
walk away from Form 18 for a moment.

[00:23:48] Speaker 05:
And let's assume that this is a twombly, hick-ball type situation.

[00:23:53] Speaker 05:
How much information do you think would be, at minimum, required to be in the complaint in order for the complaint to survive a motion to dismiss?

[00:24:04] Speaker 05:
We have, I guess you have four limitations in your, let's just look at claim one.

[00:24:09] Speaker 05:
four limitations I think it is.

[00:24:11] Speaker 05:
Suppose they say that you infringe by engaging in a method of detoxifying a patient by sedating the patient with an anesthetic

[00:24:23] Speaker 05:
administering a diastereosuppressant, injecting an opioid antagonist, and then reviving the patient from the effects of the anesthetic agents.

[00:24:36] Speaker 05:
Those are their allegations.

[00:24:37] Speaker 05:
Would that be sufficient in your view?

[00:24:39] Speaker 02:
I don't believe it would, no.

[00:24:40] Speaker 02:
What more would be needed?

[00:24:42] Speaker 02:
Well, Judge Bryson, I think it's almost similar to what they say currently that we practice a claim method.

[00:24:48] Speaker 02:
If they just recited back the elements of the claim, that doesn't do anything.

[00:24:52] Speaker 02:
That doesn't allege any facts.

[00:24:54] Speaker 02:
That's alleging a claim.

[00:24:55] Speaker 05:
Well, it's alleging, in a sense, it's alleging facts because the question of whether one sedates a patient with an anesthetic agent is a fact.

[00:25:05] Speaker 05:
I mean, are you saying that they have to name the anesthetic agent?

[00:25:08] Speaker 02:
No, not at all.

[00:25:09] Speaker 05:
What do they have to do then, beyond simply

[00:25:12] Speaker 05:
reciting those limitations.

[00:25:14] Speaker 05:
Sure, they have to provide the facts, and if those are the facts and they have the evidence of that... What facts?

[00:25:18] Speaker 02:
What facts?

[00:25:18] Speaker 02:
Well, I'll give you the example, and I'll talk about KTAC.

[00:25:22] Speaker 02:
KTAC, they said, are the dependent patents.

[00:25:24] Speaker 02:
We have patents issued, or patents issued, published patent applications, which describe our method in detail.

[00:25:30] Speaker 02:
They go through all of our steps.

[00:25:32] Speaker 02:
I would suspect someone who did a rule 11 analysis would look at those and would provide in their complaint, here's what we're talking about, we think you're infringing by this, but they can't because we don't provide diarrhea suppressants.

[00:25:43] Speaker 05:
Well, but they say that you do.

[00:25:46] Speaker 05:
Okay, so if they allege in their complaint that you do, and your answer to them is no, we don't, isn't that a factual dispute?

[00:25:55] Speaker 05:
At that point, what's missing from the existence of a factual dispute?

[00:26:01] Speaker 05:
That looks very factual to me.

[00:26:03] Speaker 02:
At least then they will have alleged what they believe we are doing.

[00:26:07] Speaker 05:
Right, but you told me that that was insufficient.

[00:26:09] Speaker 02:
Well, and I only refer to that in the sense of insufficient if they are referring to the claims.

[00:26:15] Speaker 02:
If they're putting it in the fact that they say we are doing this, and if they were to cite our website, the published patent application,

[00:26:22] Speaker 02:
But I think the crux of it is they can't.

[00:26:24] Speaker 02:
Because if they do, much like Judge Moore said about filing statements by attorneys saying they do this, or they have a reasonable uninformation and belief doing something,

[00:26:33] Speaker 02:
there is none of that because my doctors don't do it.

[00:26:36] Speaker 02:
In fact, they have maintained ever since they got the complaint from the first day when I called them and they said, we don't do diarrhea suppressants.

[00:26:43] Speaker 02:
In fact, they take the opposite.

[00:26:44] Speaker 05:
That would be, it would seem to me, depending, I guess, on how willing the district judge is to be a little bit creative here with summary judgment process, it would seem to me that

[00:26:55] Speaker 05:
you could have probably filed a motion for summary judgment very promptly and the district court would have presumably asked Mr. Morobly what kind of discovery do you need in order to respond to the summary judgment motion and don't ask for the world because I want to give you targeted discovery to the specific question of do you use the diarrhea and suppressant and you would have been done in a week

[00:27:21] Speaker 05:
Instead, you've got us involved.

[00:27:26] Speaker 05:
You've got this case going on for months.

[00:27:29] Speaker 05:
And it seems to me that this whole process of using motions to dismiss to do what we've always previously done by summary judgment is really, in many ways, more inefficient.

[00:27:42] Speaker 05:
I recognize the costs of discovery can be brutal.

[00:27:46] Speaker 05:
But it seems to me with a little imagination the discovery can be so focused that you can get a factual and final disposition of this case very promptly with a targeted summary judgment motion.

[00:27:59] Speaker 05:
Why not go that way?

[00:28:00] Speaker 05:
If you knew what you had to defend against, perhaps that's an option.

[00:28:03] Speaker 05:
Would you know exactly what you have to defend against?

[00:28:05] Speaker 05:
Because you know what your defense is.

[00:28:07] Speaker 05:
Your defense is, we don't use a diarrhea suppressant, period, end of case.

[00:28:12] Speaker 05:
And if you can establish that in one page affidavit from your chief doctor and they don't have anything coming back at you, you win.

[00:28:23] Speaker 05:
Why not?

[00:28:24] Speaker 05:
What am I missing?

[00:28:24] Speaker 02:
I don't think that's how the district courts conduct their business, unfortunately.

[00:28:28] Speaker 02:
Well, many do.

[00:28:29] Speaker 02:
Many do.

[00:28:31] Speaker 02:
I would like to believe that, and unfortunately I think the answer is because they don't plead their... they don't push from possibility to probability, or from possibility to plausibility, any facts.

[00:28:43] Speaker 02:
And unless they do that, I as a defendant don't have to do those things because they haven't satisfied their burden.

[00:28:49] Speaker 04:
With regard, there were multiple counts and multiple claims that appears to be in both the original complaint and the commended complaint.

[00:29:00] Speaker 04:
Both of them suggested induced and contributory infringement as well.

[00:29:04] Speaker 04:
And as you recognize, that's not form 18 applicable.

[00:29:09] Speaker 04:
The lower court, it seems in addition, one of those claims indicated there was no factual allegation of specific intent.

[00:29:18] Speaker 04:
Is that right?

[00:29:19] Speaker 02:
That's correct, Your Honor.

[00:29:20] Speaker 04:
And does the amended complaint cure that defect?

[00:29:26] Speaker 02:
No, they do not.

[00:29:27] Speaker 02:
All they do, once again, in the amended complaint, is use the pleading requirements, or not the pleading requirements, but the buzzwords to satisfy the element of the particular claims.

[00:29:38] Speaker 02:
They don't have any facts, and that comes to mind as aiding and abetting.

[00:29:42] Speaker 02:
They put aiding and abetting in there as one of the

[00:29:45] Speaker 02:
proof of intent or allegations of intent.

[00:29:48] Speaker 04:
You don't think it's enough for them to say you encourage your doctors exercise dominion and control over defendant eagle advancement and you encourage aid or instruct others to perform one or more of the step?

[00:30:06] Speaker 04:
Correct.

[00:30:07] Speaker 04:
You encourage them to perform one or more of the steps with specific intent to urge and instruct and encourage such infringement.

[00:30:14] Speaker 02:
And let's talk about, I think it was K-Tech again, where there was arguments about the cable companies communicating or having some sort of discussions for that sort of satisfying the intent.

[00:30:27] Speaker 02:
And there has to be more.

[00:30:28] Speaker 02:
You have to say, in that particular case, I think they talked about the contracts or the discussions they had.

[00:30:32] Speaker 02:
And at least that put them on notice.

[00:30:35] Speaker 02:
And that's what's lacking here.

[00:30:36] Speaker 02:
There is outside of repeating aiding and abetting,

[00:30:39] Speaker 02:
There is nothing.

[00:30:41] Speaker 04:
And they don't articulate a specific act that you are doing or encouraging someone else to do or anything like that.

[00:30:48] Speaker 04:
Is that the idea?

[00:30:49] Speaker 04:
That's correct.

[00:30:50] Speaker 02:
And again, from the mindset of the defendant here.

[00:30:52] Speaker 04:
And what about specific intent?

[00:30:54] Speaker 04:
What do you think?

[00:30:55] Speaker 04:
Do you think it's enough to say, well, you had knowledge as a patent?

[00:30:57] Speaker 04:
Would that satisfy in your mind the Twombly standard for the specific intent that's necessary?

[00:31:05] Speaker 02:
Well, I think

[00:31:07] Speaker 02:
I don't remember the name of the case, it just came down where it talked about Kamel, where they said you have to have a specific intent to cause the infringement.

[00:31:17] Speaker 02:
So I think it is something more than just knowledge of the patent that you need to plead and to prove for the indirect infringement.

[00:31:25] Speaker 04:
Do you think they need to identify

[00:31:27] Speaker 04:
the name of the procedure, whether it be for direct or indirect infringement, like, you know, do you have a menu of services?

[00:31:34] Speaker 04:
I mean, is it, I'm sort of along the lines of what Judge Bryson was asking before.

[00:31:38] Speaker 04:
I'm trying to understand how specific, I mean, Form 18, for example, just says, you sell electric motors that infringe the patent, electric motors embodying the patent, something like that.

[00:31:51] Speaker 04:
So what if they say here, you sell procedure, you

[00:31:55] Speaker 04:
offer procedures identical to those claimed.

[00:31:58] Speaker 02:
I'll tell you why I think the formatting is okay when it says electric motors and I can tell you why I think in this particular case with Method it's not with procedures that we perform.

[00:32:07] Speaker 02:
When you have the electric motor and when you make a product you can go out and buy it and I can buy it and you know what you made because you sold it and I have a copy of it and when I say this infringes you have it and I have it and we can all look at it and then we can have a debate about the merits of the fact of whether that infringes.

[00:32:23] Speaker 02:
When you talk about a process, and in particular treating patients, it's not tangible.

[00:32:28] Speaker 02:
This is something that, outside of the fact that we do have a published patent application, which they could have looked at, outside of that, if they're just going to say, you perform steps, there's no way I can easily show that I don't do something.

[00:32:42] Speaker 02:
Because once they've alleged that I do it, in desperation to your point, trying to prove that we don't do something,

[00:32:49] Speaker 02:
At least in the world that I practice in, in district courts, it doesn't take much for them to, a district court judge, to continue the litigation.

[00:32:57] Speaker 05:
I would think, under Celotex, you file an affidavit which says, we don't do it, and they come back and say, we don't believe them.

[00:33:06] Speaker 05:
That won't do it.

[00:33:07] Speaker 05:
You win.

[00:33:08] Speaker 05:
Judgment for the defendant.

[00:33:11] Speaker 05:
I mean, isn't that your understanding of the way Celotex works?

[00:33:13] Speaker 05:
It's mine.

[00:33:15] Speaker 05:
In that particular court, it did, yes.

[00:33:17] Speaker 04:
Is your problem mainly that you think that the floodgates will open and then you'll be mired in discovery on all kinds of issues and that somehow it won't get narrowly focused?

[00:33:26] Speaker 02:
I mean, if Judge Bryson were the district court judge, maybe he would keep it narrowly focused, but that might not happen and you just don't want to end up with... Well, Judge Amora, I can probably... You obviously know the other matters or the other allegations that have been filed by this particular plaintiff.

[00:33:44] Speaker 02:
The majority of those all went into bankruptcy of the

[00:33:47] Speaker 02:
Individuals and or the clinics.

[00:33:51] Speaker 02:
And there was one in the, I believe we cited it in the joint appendix, a decision from the Illinois court where they ruled that the complaint failed 12b6 and they dismissed it.

[00:34:02] Speaker 02:
And then they refiled and then eight months, 12 months later, there was a notice of closing the case with bankruptcy.

[00:34:09] Speaker 02:
A similar exact same complaint in Eastern District of Michigan followed our complaint where the judge dismissed it and that wasn't appealed.

[00:34:17] Speaker 02:
And so, I mean, the performance or the acts of the plaintiff, Patton Holder, in these particular cases, I think is what concerns the defendants and why if they aren't going to do what they have to do, I don't want to have to go and argue high octane for attorney's fees after we win the case.

[00:34:35] Speaker 02:
We don't want to be in this case.

[00:34:37] Speaker 02:
They don't want to have to do it because they're not practicing the method and there's no evidence that they are.

[00:34:41] Speaker 05:
How many of these cases have there been, you've mentioned, to a third?

[00:34:45] Speaker 02:
I want to say maybe six.

[00:34:47] Speaker 02:
And how many of them ended in bankruptcy?

[00:34:49] Speaker 02:
You mentioned one.

[00:34:50] Speaker 02:
I'm aware of I think three have.

[00:34:52] Speaker 02:
There's this one, the other Eastern District of Michigan.

[00:34:55] Speaker 05:
Was there ever a factual resolution?

[00:34:57] Speaker 05:
Did they all turn on whether there was the use of a diarrhea suppressant?

[00:35:02] Speaker 02:
I don't know.

[00:35:02] Speaker 02:
They progressed far enough, quite honestly.

[00:35:07] Speaker 02:
In your honor, what I'd like to say is that the Supreme Court, in abrogating Form 18 and its statement in common, that it's the authority and the responsibility of the district courts to ensure cases are dissuaded, we ask you to affirm the decision.

[00:35:27] Speaker 04:
Thank you, Mr. Hollenberger.

[00:35:29] Speaker 04:
Mr. Mirable, we'll give you two minutes of rebuttal time.

[00:35:32] Speaker 00:
Thank you, Your Honor.

[00:35:36] Speaker 00:
If I may make a comment, the insinuation is to some degree that we're trollish in what we're doing, that we brought other suits and we have, we brought five.

[00:35:50] Speaker 00:
Five?

[00:35:50] Speaker 00:
That's five suits, yes.

[00:35:51] Speaker 00:
And of the five, one is outstanding, the others have been settled through extensive litigation, mind you.

[00:36:02] Speaker 00:
comment about the case where the defendant up in bankruptcy on that particular case uh... judge chow in chicago had a citation for contempt against the defendant because we have for a significant period of time attempted to get his deposition to be able to testify after the procedure now in his case he actually worked for the appellate at one time

[00:36:29] Speaker 00:
and was involved in performing this particular procedure.

[00:36:34] Speaker 00:
The bankruptcy was not as a result of, quote unquote, some vicious activity of the, quote unquote, trolls were not trolls.

[00:36:42] Speaker 00:
I represent the patent developer.

[00:36:45] Speaker 00:
I represent the doctor that developed this detoxification process, and he holds a 411 patent on that.

[00:36:52] Speaker 00:
It's not troll-like to try to enforce what rights you happen to have under patent.

[00:36:57] Speaker 00:
But my concern, dominantly, in regard to this, is we're trying to set cases now by pleading.

[00:37:07] Speaker 00:
Essentially, the motion dismissed has become the new demurrer.

[00:37:13] Speaker 00:
Quote unquote, there's not enough facts alleged to be able to state a cause of action.

[00:37:16] Speaker 00:
Well, we're not a fact pleading system.

[00:37:20] Speaker 00:
In the federal system, at least is my understanding, what we are is a notice pleading system.

[00:37:25] Speaker 00:
And quote unquote, if we file a petition and it does not state sufficient facts for the court, we should be allowed to amend.

[00:37:34] Speaker 00:
But even if we did amend and we stand on the petition we have now, we have the right, yes, they could file summary judgment, but we also have the right to take a deposition under oath and look at the defendant to say, what procedures are you specifically using

[00:37:51] Speaker 00:
Because the argument always is, well, we're not using this procedure.

[00:37:55] Speaker 00:
We're using some of it, but not all of it.

[00:37:58] Speaker 00:
Or what we're using is an anesthetic, and the anesthetic is tramadol.

[00:38:03] Speaker 00:
Well, or we're not using an anesthetic, we're just using tramadol.

[00:38:07] Speaker 00:
Well, tramadol is an opiate-based pharmaceutical.

[00:38:12] Speaker 00:
By definition, it's an anesthetic.

[00:38:15] Speaker 00:
So we get into even the dialogue of breaking down and parsing words in terms of, well, it's an aesthetic.

[00:38:22] Speaker 00:
It's not an anesthetic.

[00:38:23] Speaker 00:
We don't do this.

[00:38:24] Speaker 00:
We don't do that.

[00:38:25] Speaker 00:
But the end process is certain things must be done for a rapid detoxification for heroin to occur.

[00:38:34] Speaker 00:
And one of the things that's paramount to the process is an antidiuretic.

[00:38:40] Speaker 00:
because the process would literally what would happen is the electrolytes and the hydration of the patient would reduce or become so acute that the person would suffer cardiac arrest.

[00:38:55] Speaker 00:
That's why the anti-diureal is critical to the quote unquote magic of this particular patent.

[00:39:03] Speaker 00:
but i thank you for your time and i thank you for your interest in the case thank you very much thank both counsel the case is taken under submission