[00:00:00] Speaker 04:
There's a little change in the seating, I guess.

[00:00:03] Speaker 04:
Call up 141533 Align Technology versus ITC.

[00:00:40] Speaker 04:
You can pronounce your name before I botch it.

[00:00:43] Speaker 03:
I will do it.

[00:00:44] Speaker 03:
Ms.

[00:00:44] Speaker 03:
Pitimol here.

[00:00:46] Speaker 03:
Thank you.

[00:00:49] Speaker 03:
Chief Jack Frost, may it please the court.

[00:00:52] Speaker 03:
The International Trade Commission correctly concluded that Section 337's Prohibition on Importation of Articles encompasses electronic transmission of the accused's digital products.

[00:01:03] Speaker 03:
It was correct to stop that infringing conduct.

[00:01:06] Speaker 03:
This determination deserves this court's deference.

[00:01:09] Speaker 03:
The Commission, however,

[00:01:10] Speaker 03:
made two errors of law on the issues of first impression.

[00:01:14] Speaker 03:
First, the commission adopted an artificially narrowing construction of the term importation.

[00:01:20] Speaker 03:
The Supreme Court and this court have instructed.

[00:01:22] Speaker 05:
Can you explain?

[00:01:24] Speaker 05:
I really am having a hard time with your position that importation can cover actions that occur after the article has entered the United States.

[00:01:34] Speaker 05:
Where do you find that in Cunard or Field?

[00:01:37] Speaker 05:
How can you make that contention?

[00:01:40] Speaker 03:
Joanna, both Cunard and Field & Company have spoken about importation as constituting the bringing of the product within the jurisdiction of the United States.

[00:01:49] Speaker 03:
And in Cunard specifically, the court said that the products were imported when they were brought into ports and harbors.

[00:01:56] Speaker 03:
So the process of importation now is the bringing of a product into the United States, which begins obviously abroad.

[00:02:03] Speaker 03:
The product traverses the territorial waters, but it has to be brought into the United States.

[00:02:09] Speaker 03:
So with the ships, the product is being brought not when it crosses territorial waters, but the process of importation is complete when the product arrives on the shore.

[00:02:18] Speaker 03:
Similarly, with the electronically transmitted product, the process of importation is not complete until the product is stored or saved on the computer or server.

[00:02:28] Speaker 03:
So that process of storing or saving an electronic digital product is the necessary final step in the process of importation.

[00:02:35] Speaker 05:
But it's an additional step.

[00:02:36] Speaker 05:
I mean, and the Commission found that that went beyond the crossing of the borders, did it not?

[00:02:43] Speaker 03:
The Commission suggested that.

[00:02:45] Speaker 03:
The Commission, in our view, didn't articulate what is the precise point at which it was measuring importation, although I think in its brief it didn't indicate that the crossing of the border would be the relevant point.

[00:02:57] Speaker 03:
And our view is the process that is part of a process of importation.

[00:03:02] Speaker 03:
But the natural meaning of importation is that that process, you have to look at the completion of that process.

[00:03:07] Speaker 03:
When does that product actually arrive in the United States?

[00:03:11] Speaker 03:
When does it be in a position where it can be then transferred to a domestic consumer?

[00:03:16] Speaker 03:
Or is it in a position where it can be exported again from the United States?

[00:03:21] Speaker 05:
So in that sense, the nature of... Where do you get anything that says that importation includes readying something for exportation?

[00:03:31] Speaker 03:
The legal importation, the product can arrive and it can be then transferred to a domestic consumer.

[00:03:36] Speaker 03:
In the commodities case, the process of importation was finished when the product arrived at the bonded warehouse.

[00:03:42] Speaker 03:
It could then be exported.

[00:03:43] Speaker 03:
It could then be transferred and sold to a domestic consumer.

[00:03:47] Speaker 03:
But the point is for the court that the importation was completed when the product actually arrived in the United States.

[00:03:54] Speaker 04:
Can I ask you just as a threshold very pedestrian question, unless the government as well, is if we were hypothetically to conclude in the first case that the commission didn't have jurisdiction over electronic transmission in the first case, would that have any effect on what's going on here in the second appeal?

[00:04:14] Speaker 03:
We certainly would urge you not to do that for reasons discussed.

[00:04:17] Speaker 04:
No, I understand, and it's just a hypothetical, but I don't want to have to work.

[00:04:20] Speaker 04:
I mean, I just want to be clear on what you want.

[00:04:25] Speaker 03:
I think we have to consider that in this case, the product that is being transmitted is an electronic article.

[00:04:30] Speaker 03:
It's a digital article that's being transmitted electronically.

[00:04:34] Speaker 03:
If this court interprets Section 337 as not encompassing digital products,

[00:04:39] Speaker 03:
then I think that would also be dispositive of this argument.

[00:04:43] Speaker 04:
But with respect to the other cases, if we concluded otherwise with respect to the other issues that are left over that Judge O'Malley spoke a little about to your friend, those I understand would not have any impact on the outcome of this case, what we decide on the sub-issues in that case?

[00:04:59] Speaker 03:
That is right.

[00:04:59] Speaker 03:
I mean, as I understand your honest question,

[00:05:02] Speaker 03:
the court's disposition with digital of whether or not Section 337 comes to digital products would be disposed of with respect to this issue, but not necessarily the other ones.

[00:05:11] Speaker 03:
That is correct, Your Honor.

[00:05:13] Speaker 05:
So the other issues would only go to the Group 1 and 2 claims, and then these are the Group 3 and 4 claims?

[00:05:18] Speaker 03:
These are the Group 3, exactly.

[00:05:20] Speaker 03:
Exactly, Your Honor.

[00:05:20] Speaker 03:
And because these claims are written to digital articles,

[00:05:25] Speaker 03:
that but also have a claim limitation that have to be stored on the computer-readable medium.

[00:05:31] Speaker 03:
That's why our position is that that limitation is being met here because the process of importation and its end includes the saving of these digital data sets on the computer-readable medium.

[00:05:42] Speaker 03:
So at that point, under the proper term, construction of the term importation, that claim limitation is met.

[00:05:48] Speaker 03:
And there is no dispute on that.

[00:05:50] Speaker 00:
So what additional release would be available

[00:05:54] Speaker 00:
to you in that case?

[00:05:56] Speaker 00:
Does it relate only to the concurrent cases in the district court?

[00:06:00] Speaker 00:
Or how would that affect, assuming that hypothetically in the first case, the commission is sustained?

[00:06:11] Speaker 03:
If the commission is sustained, then Johan is asking about the respect which is a group reclaim, so a respect in general.

[00:06:20] Speaker 00:
In general?

[00:06:21] Speaker 00:
Why are you here?

[00:06:22] Speaker 00:
Is it to add support to the Commission's thinking in general, to broaden the scope of the thinking, or is there actually an economic monetary consequence in addition?

[00:06:37] Speaker 03:
Joana, I think certainly our main aim is to stop the infringing importation, and that's what the Commission has ordered.

[00:06:45] Speaker 03:
With respect to our cross-appeal, we actually argue that even though the commission was correct to enter the cease and desist order, that this should be broadened and so that it would also cover products that infringe additional claims of the patterns that are owned by law.

[00:06:58] Speaker 00:
That's my question.

[00:06:58] Speaker 00:
So what?

[00:06:59] Speaker 00:
What does that mean?

[00:07:01] Speaker 00:
Infringing one claim is infringement.

[00:07:03] Speaker 00:
How many are these additional claims?

[00:07:06] Speaker 00:
Is there a theory of additional monetary liability or just the fact of infringement?

[00:07:15] Speaker 03:
Johanna, I think it's both.

[00:07:16] Speaker 03:
I think it's the fact of infringement.

[00:07:17] Speaker 03:
So obviously, a cease and desist order that's broader, that encompasses additional claims, then that would be more difficult to evade by modifications.

[00:07:25] Speaker 03:
There may also be monetary consequences, but that would be, I mean, for the purpose of this case, I don't want to speculate about that right now.

[00:07:32] Speaker 03:
Because that would obviously be a question of the district court proceedings.

[00:07:37] Speaker 03:
But certainly, a broader cease and desist order would provide a line with greater relief.

[00:07:44] Speaker 05:
we were to agree with you, even if we were to agree with you, that 271G somehow was not just meant for district courts and that it's available under 1337.

[00:07:56] Speaker 05:
The part that I'm having the hardest problem with in terms of your argument on the 271G is where does it say that 271G was ever meant to encompass cross-border activities?

[00:08:11] Speaker 03:
Your Honor, the 271-G, there was actually, there were clear statements in the legislative history that Congress did not want to limit Section 271-G to the practice of the patent that occurs only abroad.

[00:08:25] Speaker 03:
And we have sites in our brief.

[00:08:27] Speaker 03:
The reason that was done is in order to comply with the United States' international trade obligations.

[00:08:32] Speaker 05:
So Section 271-G... The language of 271-G is very clear, is it not?

[00:08:37] Speaker 03:
The language of 271G simply speaks about the use of a process that's dependent on the US patent.

[00:08:46] Speaker 03:
And so majority of the district courts that actually have considered that question have held that section 271G is not limited to the practice of a process abroad, that in fact it would encompass situations where some of the steps of being proud of a claim are being practiced abroad and the final step is being practiced in the United States.

[00:09:05] Speaker 05:
But it specifically refers to the importation of a good that was made from the practicing of the patented process.

[00:09:17] Speaker 05:
You can't import something if it's not already made, right?

[00:09:21] Speaker 03:
If it refers to importation, it also refers, obviously, to use in the sale.

[00:09:24] Speaker 03:
And so there is a parallel with this court's decision in Suprema.

[00:09:28] Speaker 03:
But in this case, what is being imported

[00:09:31] Speaker 03:
our argument on the 271-G is that the final product where the final step is being practiced in the US is a physical aligner, but what is being imported and what contributorally infringed are the digital data sets.

[00:09:44] Speaker 03:
So in that case, actually, we do have an article which is being imported, and that article then, even though it's contributorally infringed, under our theory of 271-G combined with 271-C infringement, that article is being imported under Section 337.

[00:10:02] Speaker 03:
And Johanna, I think with respect to Section 271G argument, our principle position is that, as this Court said in Suprema, the Section 337th term infringed does not refer, it is not limited to any specific subsection of Section 271.

[00:10:20] Speaker 03:
So looking at the plain language of Section 337, there is no reason to exclude infringement that is direct infringement defined under Section 271 G from the scope of subsection B1 of Section 337.

[00:10:35] Speaker 03:
And in fact, I also want to briefly address this court's decision in Koenig because the commission relied a lot on it.

[00:10:40] Speaker 03:
Koenig, in our view, was very different.

[00:10:42] Speaker 03:
In Koenig, the court looked and said the defenses,

[00:10:46] Speaker 03:
which are enumerated in section 271G do not apply in commission proceedings under subsection B2, but that is because the section 271G expressly says these defenses apply only for the purpose of Title 35.

[00:11:01] Speaker 05:
Right, so Kinnick specifically says that 271G was enacted to provide, quote, patent owners the new right to sue for damages and seek an injunction in federal district court, end quote.

[00:11:11] Speaker 05:
Isn't that what Kinnick says?

[00:11:13] Speaker 03:
Judge O'Malley, that is absolutely correct.

[00:11:15] Speaker 03:
The Congress's principal aim in enacting 271 G was to provide that right to sue and the remedy for the district court action.

[00:11:23] Speaker 03:
But there is no indication that Congress did not intend for section 271 G to also be available in the commission proceedings on the subsection B1.

[00:11:33] Speaker 03:
If Congress intended to make such an implied exception, it could have easily said so.

[00:11:38] Speaker 03:
And Congress also has a legislative history

[00:11:41] Speaker 03:
And the public law itself illustrates Congress also was concerned about not diminishing any kind of remedies that the patent holder may have for the Commission proceedings.

[00:11:51] Speaker 03:
So that's why Congress both kept subsection B2, which obviously has an overlapping coverage with what we argue should be covered down to subsection B1.

[00:12:01] Speaker 03:
271G and also did not restrict subsection B1 to only the other modes of infringement enumerated at section 271.

[00:12:09] Speaker 05:
How do you get around all the same chevron arguments that you were arguing on the other side of this issue when you talk about the Commission's authority to interpret 1337 and the interaction between 1337 and 271G?

[00:12:22] Speaker 03:
Your Honor, we will agree that the Commission deserves deference.

[00:12:27] Speaker 03:
We'll respect those interpretations in general.

[00:12:30] Speaker 03:
We think that here, the language of section 337, subsection B1, the language of 271G, where there is no implied exception for infringement, direct infringement defined by 271G, we think that this court is a matter of plain language, can reconcile those two provisions and actually adopt the interpretation that we argue.

[00:12:50] Speaker 03:
So now, in our view, this court can construe interaction of sections 271G and subsection B1

[00:12:59] Speaker 03:
under the first step of Chevron.

[00:13:00] Speaker 03:
And that's a different question from whether or not the term articles that's infringed, which is in section 337, is ambiguous.

[00:13:07] Speaker 03:
On that question, if the court agrees that it is ambiguous on that question, Chevron would require deference.

[00:13:15] Speaker 04:
Why don't we hear into your rebuttal?

[00:13:17] Speaker 04:
Why don't we hear from the other side?

[00:13:18] Speaker 03:
Thank you, Chief Jeffress.

[00:13:24] Speaker 01:
Thank you.

[00:13:25] Speaker 01:
I might as well start with the 271G.

[00:13:30] Speaker 01:
In Kinnick, this court gave the commission Chevron deference to interpret the relationship between section

[00:13:40] Speaker 01:
271 G and Section 337.

[00:13:43] Speaker 01:
The Commission did that here.

[00:13:45] Speaker 01:
Unlike, for example, Suprema, the Commission found here specific intent by Congress not to modify the Commission's existing remedy by the new remedy, Section 271 G, that was provided in the District Court, for which reason the Commission reasonably interpreted its statute not to incorporate Section 271 G.

[00:14:07] Speaker 01:
With respect to the storage media claims, we've heard a lot about what to the Commission seems like a new definition of importation, and we've heard a lot of reliance on the commodities export case, which is a bonded warehouse case.

[00:14:25] Speaker 01:
But the statute in that case, which is 19 U.S.C.

[00:14:28] Speaker 01:
section 1555, which deals with storage of imported merchandise in a bonded warehouse,

[00:14:34] Speaker 01:
to a bonded warehouse for the storage of imported merchandise.

[00:14:38] Speaker 01:
It's not that the merchandise is imported after it leaves the bonded warehouse.

[00:14:42] Speaker 01:
It's imported upon entering the bonded warehouse, but then Congress provided for very specific schemes.

[00:14:50] Speaker 01:
to enable the use of bonded warehouses for the purposes of facilitating international trade.

[00:14:57] Speaker 05:
What's your response to the argument that somehow you have to really look to see at what point is the article, assuming it's an article, in a position to be

[00:15:17] Speaker 05:
sold or used in the U.S.

[00:15:18] Speaker 05:
or in a position to be re-exported.

[00:15:22] Speaker 05:
How do you respond to that?

[00:15:24] Speaker 01:
Well, it's not a position that we supported.

[00:15:26] Speaker 01:
We, whether we're dealing with tangible goods or intangibles, apply a more straightforward measure of what's coming into the country.

[00:15:35] Speaker 01:
What's not coming into this country is a treatment plan residing on a computer readable storage media.

[00:15:40] Speaker 01:
Like at least some members of the panel, I don't understand exactly what Align hopes to get from this, because they have many patent claims, including in the 487 patent itself, for which the Commission found a violation.

[00:15:54] Speaker 01:
They were part of the Group 2 claims, but didn't recite the computer-readable storage media.

[00:16:00] Speaker 01:
So here, as a matter of infringement,

[00:16:02] Speaker 01:
The commission found that what was being imported was not a treatment plan residing on a computer-readable storage media.

[00:16:12] Speaker 01:
And the commission's non-infringement determination is reviewed for substantial evidence.

[00:16:18] Speaker 01:
And you won't see any storage media.

[00:16:19] Speaker 01:
They're not coming into the country.

[00:16:22] Speaker 01:
And if the court doesn't have any other questions.

[00:16:25] Speaker 04:
Well, could you just respond what I asked your friend about, which is whether or not, if hypothetically, we need to conclude in the first case that the IDC did not have jurisdiction over articles of electronic transmission, whether that would resolve all of the issues in this case as well.

[00:16:44] Speaker 01:
Each of the subsets of Section 337A include the word articles.

[00:16:52] Speaker 01:
So if what's coming into the country are not deemed to be digital goods, are not articles, then it's my understanding that the Group's three and four patent claims would fall as well.

[00:17:04] Speaker 01:
There are some issues in the first case which may well relate to this one.

[00:17:08] Speaker 01:
As I understand alliance theory with respect to the group four patent claims, there is a direct infringement by clear correct US under 271 G and clear correct Pakistan contributes to that infringement under 271 G, not under 271 A.

[00:17:24] Speaker 01:
through 271C.

[00:17:27] Speaker 01:
In that case, the arguments about a material for use in performing a patented process would appear to apply to the Group 4 patent claims in this appeal, which is something that we tried to explain in our brief.

[00:17:40] Speaker 01:
Notably, one other thing while we're talking about contributory infringement is these Group 3 patent claims, which call for a treatment plan residing on a computer-readable storage media, a line never argued contributory infringement by clear, correct Pakistan.

[00:17:53] Speaker 01:
for purposes of infringing those claims.

[00:17:56] Speaker 01:
I'm not sure why that is.

[00:17:57] Speaker 01:
There doesn't appear to be anything to stop such a theory.

[00:18:03] Speaker 01:
And if Alline had presented and preserved such a theory, it's likely that we would be talking about these group three patent claims.

[00:18:11] Speaker 01:
Under 271C.

[00:18:12] Speaker 01:
Under 271C, we would be talking about these patent claims in the first appeal rather than the second one here.

[00:18:19] Speaker ?:
Thank you.

[00:18:31] Speaker 02:
The clear correct intervenors agree with the commission in its arguments concerning these Group 3 and Group 4 claims.

[00:18:37] Speaker 02:
But a line cannot prevail on those claims for two additional reasons stated in our brief.

[00:18:42] Speaker 02:
One, because those claims are invalid in light of the prior art.

[00:18:45] Speaker 02:
And number two, because of a covenant not to sue that a line gave clear correct back in 2011.

[00:18:50] Speaker 02:
Earlier I was talking about their claims and how we have the digital models.

[00:18:59] Speaker 02:
A little more description of the process is helpful to these two concepts.

[00:19:03] Speaker 05:
We have the digital model.

[00:19:09] Speaker 02:
The claims of the 325?

[00:19:12] Speaker 02:
Yes, Your Honor.

[00:19:13] Speaker 02:
The 325, basically, is what I described earlier.

[00:19:17] Speaker 02:
You take a scan of crooked teeth, position A. You have straight teeth, position B. Right.

[00:19:23] Speaker 02:
I understand.

[00:19:23] Speaker 05:
But in perspective, there's an argument on validity as it relates to waiver.

[00:19:28] Speaker 05:
And clearly, you asserted in validity as to the 325.

[00:19:33] Speaker 02:
Yes, Your Honor.

[00:19:33] Speaker 02:
I do not believe there is any waiver assertion on the 325-1.

[00:19:36] Speaker 02:
I think the Commission was happy with that.

[00:19:38] Speaker 02:
The commission, let's talk about waiver right now, what the commission held is we waived our right to challenge the other patent claims because we incorporated by reference our same argument.

[00:19:52] Speaker 02:
I think that's an abusive discretion because the prior art here is just razor thin.

[00:19:57] Speaker 02:
We're talking about two columns from two prior art patents and a couple of diagrams from one of them.

[00:20:05] Speaker 02:
So it really would add nothing to the debate for us to just cut and paste 40 times the same prior art.

[00:20:14] Speaker 02:
The prior art is very simple.

[00:20:17] Speaker 02:
Back in 1949, there was an orthodontist named Dr. Kiesling.

[00:20:21] Speaker 02:
Instead of taking a digital model of people's teeth, he did it in plaster.

[00:20:25] Speaker 02:
He would get the crooked teeth, position A, and then he'd saw off the teeth with the saw and put them in wax so he could move them around.

[00:20:32] Speaker 02:
And he would go from position A crooked teeth to Z straight teeth and then thermoform the plastic over it just like we do today.

[00:20:41] Speaker 02:
And then in column three of his patent he says obviously if the space you need to move is too far to do it with one appliance you go back and you make intermediate positions for additional appliances that people wear in their mouth.

[00:20:57] Speaker 02:
That was back in 1949.

[00:20:58] Speaker 02:
The only other reference that we have that we're relying on here today is one by Dr. Limchin in 1989.

[00:21:06] Speaker 02:
And there, he shows how to digitize Dr. Kiesling's method of using the plaster models.

[00:21:16] Speaker 02:
That's it.

[00:21:17] Speaker 02:
Those two references cover all of Align's patents here.

[00:21:22] Speaker 02:
The patent claims asserted here because they are so, like I said earlier, mind-numbingly repetitive.

[00:21:27] Speaker 02:
They're just using these models to make the appliance or not even going that far and just using the models to create the digital data.

[00:21:35] Speaker 02:
That's all.

[00:21:36] Speaker 02:
So all of the elements of the 325-1

[00:21:44] Speaker 02:
are in the Kiesling-Limkin references.

[00:21:46] Speaker 02:
It's very straightforward.

[00:21:48] Speaker 02:
I would ask the court to find that the 325 claim one is invalid as obvious, and then remand back to the commission for more analysis on the remainder of the patent claims if the waiver finding is an abuse of discretion, which I think it is.

[00:22:09] Speaker 02:
The next item is the covenant not to sue.

[00:22:14] Speaker 02:
Here again, there was a waiver finding.

[00:22:16] Speaker 02:
But this one, kind of like the invalidity, is the height of form over substance.

[00:22:23] Speaker 02:
The commission found a waiver of the argument concerning the covenant not to sue because we didn't put enough words in our responsive pleading.

[00:22:33] Speaker 02:
We should have had more description of what our estoppel defense was.

[00:22:36] Speaker 02:
But the point of the matter here is that a line had enough information to

[00:22:43] Speaker 02:
Take discovery, took depositions over the defense, drafted a motion for summary determination, as did clear correct.

[00:22:50] Speaker 02:
The parties competed on this issue of covenant not to sue, aligned one of victory on the merits on summary determination, and then got a motion in limine excluding the evidence from the trial, the hearing, even as to our mens rea concerning contributory infringement.

[00:23:06] Speaker 02:
So there was no argument of surprise, no prejudice, and adding extra words to the responsive pleading and the affirmative defense would not have changed anything that happened.

[00:23:18] Speaker 02:
On the covenant itself.

[00:23:21] Speaker 05:
You say extra words.

[00:23:22] Speaker 05:
I mean, these are words that would actually say that you're asserting affirmative defense based on implied license.

[00:23:27] Speaker 05:
I mean, it's more than just words.

[00:23:30] Speaker 05:
It's particular words, right?

[00:23:31] Speaker 05:
That affirmative defense was not asserted.

[00:23:33] Speaker 05:
Yes, I agree that there was discussion of it in discovery, and there was actually a merits assessment of it.

[00:23:39] Speaker 05:
But there was an alternative finding by the ALJ.

[00:23:42] Speaker 05:
One was waver, the other was even if it's not waver.

[00:23:45] Speaker 02:
True.

[00:23:46] Speaker 02:
But Your Honor, I disagree with you about whether the pleading was efficient, because there was an estoppel defense pledge.

[00:23:50] Speaker 02:
And we said there was stop from asserting the patent claims here.

[00:23:54] Speaker 02:
The 611 that they gave the covenant not to sue over is not in this case.

[00:23:59] Speaker 02:
So the estoppel defense went to the patents that they did assert in this case.

[00:24:04] Speaker 05:
Right.

[00:24:04] Speaker 05:
But did you say they were stopped because of an implied license?

[00:24:07] Speaker 02:
No, Your Honor.

[00:24:08] Speaker 02:
It was just a generic estoppel pleading.

[00:24:11] Speaker 02:
But what they did is what parties always do.

[00:24:13] Speaker 02:
There was no challenge to

[00:24:15] Speaker 02:
an insufficiency of the plea, and what they did is they just conducted discovery.

[00:24:19] Speaker 02:
And they got our documents, and they talked to our president about the defense, and they teed up a motion for summary determination, and they won it.

[00:24:27] Speaker 02:
I submit wrongfully.

[00:24:28] Speaker 02:
And the reason I submit wrongfully is because the 611 patent and their 880 patent have the identical specifications.

[00:24:37] Speaker 02:
By definition, it's the same inventive subject matter.

[00:24:40] Speaker 02:
And your honor, we submit that

[00:24:43] Speaker 02:
we should have an implied license to do the 880 and we should again get a remand to see if that license extends to the other paths.

[00:24:51] Speaker 05:
Let me just ask you before you sit down a question about the 271G.

[00:24:54] Speaker 05:
Do you agree with your friend on the other side that in fact every court to have considered it says that cross-border practicing of a process is actionable under 271G?

[00:25:10] Speaker 05:
In other words, you can have some steps of the process outside the United States and some steps of the process inside the United States as long as something's imported in the middle?

[00:25:22] Speaker 02:
You mean it would not be actionable if part of the method patent occurs outside the continental United States?

[00:25:26] Speaker 05:
The process, yes.

[00:25:28] Speaker 02:
I agree with that, yes.

[00:25:30] Speaker 05:
That what?

[00:25:31] Speaker 02:
I agree that there would be no liability for patent infringement for a method claim that is practiced partially outside the United States.

[00:25:41] Speaker 04:
Okay, thank you.

[00:25:52] Speaker 03:
So on several points.

[00:25:53] Speaker 03:
On the, with respect to the deference, I think, again, Kynik is, obvious, Kynik is distinguishable because Kynik relied on the specific language of 271-G, which spoke only to defenses, and it also relied on the principle that the remedies under the commission and commission proceedings should not be diminished.

[00:26:11] Speaker 03:
Those two rationales would not apply here, and so you would not get, I think, to the deference.

[00:26:16] Speaker 03:
With respect to the commodities case, our reliance on the commodities cases, our reliance on Field & Company, and our reliance on Kunar, is there is these cases speak for the principle that the act of importation constitutes the bringing of a good into the United States, where it is then being made available to a consumer or can be disposed otherwise.

[00:26:35] Speaker 03:
That's why our position is that with respect to digital product importation will include the act of saving or storing a digital file in a computer server in the United States.

[00:26:45] Speaker 03:
With respect to the covenant not to sue and the obviousness defense, for obviousness we think the Commission correctly found waiver to the majority of a claim.

[00:26:56] Speaker 03:
Also, clear correct has to show obviousness with respect to each claim and each dependent claim.

[00:27:01] Speaker 03:
Clear correct has not done that analysis before the commission, has not done that analysis before this court, and for file brief and the commission's brief demonstrated in our view quite convincingly.

[00:27:13] Speaker 03:
With respect to covenant not to sue, we think again the commission quite correctly found the waiver.

[00:27:18] Speaker 03:
The estoppel defense that clear correct involved was very different from the estoppel under this supposed covenant not to sue,

[00:27:25] Speaker 03:
And also our view is that, as we explained in our brief, the patent on which, with respect to which the letter not to see was given, is very different from the patents that are sorted over here.

[00:27:40] Speaker 03:
With respect to what kind of remedy we hope to, and what we hope to achieve with respect to group pre-claims is, again, as I mentioned, we would get a broader cease and desist order.

[00:27:52] Speaker 03:
And also the other issue is that with respect to why we did not raise the contributor infringement as to those claims, we did not raise it before ALJ because the clear correct did not actually invoke the defense that these claims did not directly infringe by not meeting that claim limitation.

[00:28:11] Speaker 03:
So therefore we have not as a backstop invoke the contributor infringement.

[00:28:17] Speaker 03:
And then we argued before the commission that way we should be excused.

[00:28:19] Speaker 03:
The commission found otherwise we didn't contest that finding.

[00:28:22] Speaker 03:
You're on my time spot.

[00:28:24] Speaker 03:
I just have one question with respect to this court order, if I may, for the additional briefing.

[00:28:30] Speaker 03:
With respect to the briefing that parties should submit to Suprema, would that be limited to the impact of Suprema on the 1527 appeal or also on the 1533 appeal?

[00:28:41] Speaker 03:
And the reason I ask is because if it encompasses both appeals, it may be difficult for a line to fully join the commission's response, obviously because of a different interest than the 1533.

[00:29:00] Speaker 04:
Why don't we just do additional then on this case, five pages, five pages double space for each side on the impact of Suprema to this case, the second appeal before us.

[00:29:14] Speaker 04:
Is that okay?

[00:29:15] Speaker 04:
Same time limit of 10 days.

[00:29:17] Speaker 03:
Absolutely.

[00:29:18] Speaker 04:
Thank you very much for the presentation.

[00:29:19] Speaker 04:
Letter form, thank you.

[00:29:23] Speaker 04:
The case is submitted and that concludes the proceedings for the form.

[00:29:28] Speaker 04:
Thank you.