[00:00:01] Speaker 02: Final case for argument is 14-1749, Urvano versus Ernie Ball. [00:01:04] Speaker 04: Please, the Court. [00:01:05] Speaker 04: Peter Gluck on behalf of Vervana, LLC. [00:01:07] Speaker 02: I'm here because in CAFC case number 2012-12- Before you get into the argument, can you give us the status report on the situation with respect to your client's tax liability and so forth? [00:01:20] Speaker 02: Yes, ma'am. [00:01:20] Speaker 05: My client's tax liability has been addressed. [00:01:23] Speaker 05: I have documents that I can offer for the court or submit in whatever form they wish to, showing that all back taxes have been paid to the date that they were owed. [00:01:33] Speaker 05: and that the status of the corporation has been restored. [00:01:37] Speaker 05: I'm here today because on January 24, 2013, Judge Lorry, Judge Newman, and Judge O'Malley [00:01:46] Speaker 05: filed an opinion and entered judgment against Ernie Ball that U.S. [00:01:50] Speaker 05: Letters Patent 6433264, the 264 patent or the Gimple patent, was invalid for indefiniteness as to claims 1-4, 6-10, and 21-23. [00:02:03] Speaker 02: So are you claiming in the incident case that they are trying to threaten you with respect to claim other than the claims you just listed? [00:02:13] Speaker 05: Your Honor, the case that I just discussed has never been addressed in California where I live in that the defendants and the appellees continue to do everything that they did before the case was decided. [00:02:31] Speaker 05: They have basically maintained the status quo. [00:02:34] Speaker 05: They haven't acknowledged the order. [00:02:35] Speaker 05: They never filed a PTO form in the file of the Gimple patent showing that the order had been decided. [00:02:43] Speaker 05: because of their considerable commercial stature, they continue to use the fact that there were claims that were not adjudicated in that case against my client. [00:02:54] Speaker 01: What is your client being threatened? [00:02:58] Speaker 05: My client is being threatened. [00:03:00] Speaker 05: My client's vendors, my client's clients, my client's customers still are under fear that Ernie Ball and its partners are going to sue them. [00:03:11] Speaker 02: Why? [00:03:12] Speaker 02: I mean, they may be in fear. [00:03:15] Speaker 02: I guess I can't dispute that. [00:03:16] Speaker 02: On what basis? [00:03:17] Speaker 02: I mean, obviously, it was an injunction in place for a couple years, right? [00:03:21] Speaker 02: So during that time period, we'll take that off the table. [00:03:25] Speaker 02: Right. [00:03:25] Speaker 02: There was an injunction in place. [00:03:27] Speaker 02: So what post are decision here? [00:03:30] Speaker 02: What have they sent threatening letters, phone calls? [00:03:33] Speaker 02: What's been going on? [00:03:35] Speaker 05: Your Honor, they have not changed, pardon the interjection. [00:03:38] Speaker 05: They have not changed their conduct since this order issue. [00:03:41] Speaker 02: I don't know what that means. [00:03:42] Speaker 02: They continue to sell. [00:03:44] Speaker 02: OK. [00:03:45] Speaker 05: Because Mr. Wells has been so helpful in his request for judicial notice, all of these facts are of record. [00:03:51] Speaker 05: So if we want to depart from the argument, I'm happy to just go right through his request, because all the findings of fact from the prior case are now entered in this case. [00:03:59] Speaker 04: This is the classic data. [00:04:01] Speaker 02: Maybe I'm not being clear. [00:04:05] Speaker 02: Since this case. [00:04:06] Speaker 02: What tangibly can you point to in terms of their having asserted or threatened or whatever your client or his suppliers and customers with respect to the claims? [00:04:20] Speaker 05: Each of the people and entities mentioned [00:04:24] Speaker 05: continue to refuse to do business with my client because they are afraid. [00:04:28] Speaker 02: OK, so we're back to where we were a couple minutes ago. [00:04:33] Speaker 02: I can't dispute whether or not they're afraid or not. [00:04:35] Speaker 02: The question is, what is the basis for their fear? [00:04:38] Speaker 02: Has Ernie Walt communicated with them? [00:04:41] Speaker 02: Has he threatened them? [00:04:42] Speaker 02: This is, again, since this 2013 opinion. [00:04:45] Speaker 05: We don't have access to everything that Ernie Ball has done. [00:04:48] Speaker 05: If you notice from the original proceeding, they deny that they ever sent cease and desist letters, period, and use a request for judicial notice to show that those documents weren't put in the record. [00:04:58] Speaker 05: I didn't litigate the case. [00:04:59] Speaker 05: I can stand here today and tell you that every one of the customers and suppliers that they threatened is under the misimpression that because some of the claims... Wait, that they threatened? [00:05:08] Speaker 02: before the opinion in 2013. [00:05:11] Speaker 05: We've been thrown out of court in California. [00:05:13] Speaker 05: We don't have any discovery. [00:05:15] Speaker 05: We'd like discovery. [00:05:15] Speaker 05: All we ask for is a day in court. [00:05:17] Speaker 05: The first issue is whether the patent that you so clearly said was indefinite is still in force. [00:05:23] Speaker 05: And they are acting in the marketplace as if it is. [00:05:26] Speaker 03: Well, the allegation, the only forward-looking allegation in the complaint, and we're here on a motion, on a granted dismissal of the complaint, is paragraph 21, as I understand it. [00:05:40] Speaker 03: Ernie Ball maintains that the present tense expression, that some of its claims under its 264 pattern, it says 294, but it means 264, [00:05:52] Speaker 03: valid and continues to sell and license the sale and manufacture of compensated nuts based upon its 264 patent. [00:06:03] Speaker 03: I don't think there's anything else in the complaint about post January 2013 actions and [00:06:14] Speaker 03: When you moved to amend, or for permission to amend, you didn't provide further details. [00:06:24] Speaker 03: Is that right? [00:06:26] Speaker 03: To me, the question is, is this enough? [00:06:33] Speaker 05: any details that were provided, the marketplace remains the same as when the order that Judge Laurie participated in was granted. [00:06:40] Speaker 05: Ernie Ball and Hohner and whoever else is involved in this set of actions has prevented my client from doing business. [00:06:47] Speaker 05: We don't have discovery upon that. [00:06:48] Speaker 05: The declaratory judgment that they requested, that the rest of the claims are invalid, is something that, based upon the reasoning which this court articulated, we have a right to have declared so that- I don't understand. [00:07:01] Speaker 02: You're saying here, you're telling us that Ernie Ball has prevented your client from doing stuff. [00:07:06] Speaker 02: Presumably, your client is in the best position, if he's the one that's been prevented from doing something, to come forward with specific allegations of why he's been prevented from doing that. [00:07:16] Speaker 05: Mr. Wells provided all that on his request for judicial notice where he has 30, 40 pages from the internet where people tell the world that the Irvana invention was not the invention, that the invention was created by Ernie Ball. [00:07:30] Speaker 05: Your order clearly says that Ernie Ball didn't invent anything because the claims were invalid. [00:07:35] Speaker 01: Mr. Wells, please do not personalize it. [00:07:38] Speaker 01: The court issued a decision. [00:07:41] Speaker ?: Here's the court. [00:07:41] Speaker 05: I apologize. [00:07:43] Speaker 03: So what is this material that you're referring to? [00:07:47] Speaker 03: And what are the range of dates in particular, post January 2013 or not, as to events referred to in these materials? [00:07:57] Speaker 05: I'm sure Mr. Wells can better explain what he put in the request for judicial notice, but he has a series of strings. [00:08:02] Speaker 03: I should know. [00:08:04] Speaker 03: You're assuming I know what you mean by request for judicial notice. [00:08:08] Speaker 03: A request for judicial notice from Ernie Ball filed in what court? [00:08:13] Speaker 05: In this court. [00:08:14] Speaker 03: In this court. [00:08:14] Speaker 03: In this case. [00:08:15] Speaker 03: For judicial notice for what? [00:08:17] Speaker 05: For internet communications. [00:08:19] Speaker 05: They didn't identify themselves very well. [00:08:21] Speaker 05: I can show you the document. [00:08:22] Speaker 02: And we haven't grabbed it. [00:08:23] Speaker 02: This court hasn't acted on that request yet, right? [00:08:26] Speaker 05: The point is, the status quo has been maintained since this decision came down in validating Ernie Ball's patent. [00:08:33] Speaker 05: They still tell people that Ernie Ball's patent is valid. [00:08:37] Speaker 01: They still tell people if they deal with Yirvana, they will be sued, and because... That doesn't indicate a case of controversy between Ernie Ball and you, and your client, that is. [00:08:50] Speaker 01: What they say publicly are not acts which constitute a case of controversy with your client. [00:08:58] Speaker 05: Respectfully, Your Honor, they sued our client before on a patent that they knew was invalid. [00:09:03] Speaker 05: That was part of what I was wishing to address because when this patent was issued, it was done knowing it couldn't cover any subject matter. [00:09:10] Speaker 05: That was clarified by the Court of Appeals for the Federal Circuit's opinion that I was trying to reference. [00:09:15] Speaker 05: And all that we want to do is have a declaratory judgment that the claims that were not reached by that decision have the same defect, which they do, because then Ernie Ball and Hohner can't tell our... And the district court denied that, holding that there was no case of controversy, correct? [00:09:33] Speaker 05: Correct. [00:09:33] Speaker 05: And I will admit, as Judge Toronto pointed out, [00:09:37] Speaker 05: The pleadings and the style that this stuff was presented in that Mr. Wells and Mr. Iverson put together had no acknowledgement or understanding of patent law and how it works. [00:09:48] Speaker 05: I was here to try to explain that the reasoning in invalidating those claims applies to the other claims. [00:09:54] Speaker 05: Mr. Wells writes, you know, one thing today and another thing tomorrow. [00:09:58] Speaker 05: The point is my client was put in a business and people in the marketplace are afraid to deal with them because this corporate entity is intimidating them. [00:10:06] Speaker 05: They're intimidating them because on the books, this claim that you invalidated, this set of claims has another paired set of claims with the same defect, and no one has even given the PTO notice that that claim was invalidated. [00:10:19] Speaker 05: So there's a form, a report on the termination or filing of an action that you have to file with the order when the order happens. [00:10:25] Speaker 05: I'm a patent lawyer, that's all that I do. [00:10:27] Speaker 05: When I look in the file of the 264 patent case, that was never entered. [00:10:34] Speaker 05: Yet, Ernie Ball and Hohner have filed seven or eight attempts to reexamine that patent. [00:10:39] Speaker 05: In those companion cases, they've entered that form. [00:10:42] Speaker 05: So someone is trying to hide the fact that you decided that these claims are invalid. [00:10:47] Speaker 02: Yeah, but you recognize, do you not? [00:10:49] Speaker 02: I mean, I think you do, that that's not a sufficient basis, as Judge Laurie has said repeatedly, for us to have a case in controversy before us. [00:10:57] Speaker 02: You need more than that, right? [00:10:59] Speaker 02: So we're looking at the complaint, Judge Toronto pointed to paragraph 21. [00:11:03] Speaker 02: Where have you alleged the basis for DJ Axelman? [00:11:11] Speaker 05: Amendment is liberally granted, and we have not been given a chance to amend the complaint. [00:11:16] Speaker 02: That's not my question. [00:11:17] Speaker 02: My question is, so is that an acknowledgment that the current complaint is insufficient? [00:11:22] Speaker 02: No. [00:11:23] Speaker 02: OK. [00:11:24] Speaker 02: So what makes it sufficient? [00:11:26] Speaker 05: What makes it sufficient is it says in the complaint that Ernie Ball continues to intimidate our client, that our client has a reasonable apprehension of suit. [00:11:34] Speaker 05: They sued us on a patent that they knew was invalid. [00:11:38] Speaker 05: They pressed us into not being in business so we couldn't pay taxes, so we couldn't pay our maintenance fee. [00:11:44] Speaker 05: And yet, we're not allowed to go back into court and say, because you sued us and put us out of business, because you continue to fill the internet and all of your social media channels with viral marketing saying that you invented our invention, this court was very clear on deciding what the invention was and where it came from. [00:12:01] Speaker 05: Since that day, there's been no activity in the marketplace or in the court system to acknowledge that. [00:12:07] Speaker 02: We're into your rebuttal. [00:12:08] Speaker 02: We've asked you a lot of questions. [00:12:10] Speaker 02: Why don't we hear from the other side? [00:12:12] Speaker 04: Thank you very much. [00:12:20] Speaker 00: May it please the court, Henry Wells representing Ernie Ball, Inc. [00:12:24] Speaker 00: and Hohner, Inc. [00:12:25] Speaker 02: Can you start off by getting to the question we raised before about what, I know there's a pending motion for notice of certain matters. [00:12:33] Speaker 02: What generally do those matters cover? [00:12:35] Speaker 00: It's a request for judicial notice of the suspended status of Havana LLC, which prohibits it from doing any activity whatsoever, including filing litigation or appearing in an appeal. [00:12:45] Speaker 00: And it's a suspension by the Secretary of State of California. [00:12:51] Speaker 02: repeatedly seem to suggest that there's other material that you've asked for judicial notice on in terms of emails or things of that sort. [00:13:00] Speaker 00: Not before this court. [00:13:01] Speaker 00: My only pending motion is the request for judicial notice and the statement that the corporation's been revived [00:13:09] Speaker 00: has not been supported by anything, they need a certificate of reviver, they haven't presented that. [00:13:14] Speaker 03: I'm going to assume on that, do they belong, can we act, they will in fact submit these papers to us, we're not going to take it on faith. [00:13:22] Speaker 03: I think what I'm interested in is the statements that were made that you submitted material to this court that include materials about your internet representations. [00:13:36] Speaker 03: Maybe Facebook was referenced as well about [00:13:42] Speaker 03: the continuing validity of your patent, even an implicit assertion simply by waiving the patent, saying, we have a patent on compensated nuts. [00:13:53] Speaker 03: Now, if that's true, and if it's also true that a small, the handful of their prior major customers have abandoned them, why isn't that enough to read the complaint to say, you are in fact [00:14:12] Speaker 03: affecting their welfare in a way that, for example, would fall under case or controversy law, say, under this court's Harris case. [00:14:23] Speaker 00: Yes, thank you, Your Honor. [00:14:26] Speaker 00: I've got no request for judicial notice before this court involving any emails or Facebook. [00:14:30] Speaker 00: I think what he's referring to is a request. [00:14:32] Speaker 00: There just is no request for judicial notice on that. [00:14:37] Speaker 00: I don't know. [00:14:39] Speaker 00: were some filings and a declaration in the motion to strike and dismiss. [00:14:43] Speaker 03: He didn't say there was a request for judicial notice of those materials for any particular purpose. [00:14:51] Speaker 03: He said you submitted a bunch of materials to this court. [00:14:54] Speaker 03: And you said, the court can take judicial notice of them. [00:14:59] Speaker 03: Never mind the purpose. [00:15:02] Speaker 03: Do you guys, in fact, according to those materials, have public internet representations about the 264 patent? [00:15:12] Speaker 00: No. [00:15:13] Speaker 00: Ernie Ball has made no representations about the 264 patent and is not [00:15:17] Speaker 00: There's no allegation in the complaint about that. [00:15:20] Speaker 00: And it's not even there. [00:15:21] Speaker 03: Well, there it is. [00:15:22] Speaker 03: This paragraph 21, it's not precise. [00:15:26] Speaker 03: It's very far from precise. [00:15:28] Speaker 03: But it says, in the present tense, Ernie Ball maintains that some of its claims under the 261 act are valid and continues to sell and license [00:15:37] Speaker 03: compensated nuts based upon that patent. [00:15:41] Speaker 03: That sounds to me like you are invoking the patent when selling the product that a bunch of these customers were previously buying from them or supplying to them. [00:15:54] Speaker 00: uh... that's not the case your honor. [00:15:55] Speaker 00: There's no evidence of that in the record. [00:15:57] Speaker 03: You don't have evidence on a motion to dismiss. [00:16:01] Speaker 00: Correct. [00:16:01] Speaker 03: So it's an allegation. [00:16:03] Speaker 00: Right. [00:16:03] Speaker 00: Well it's not really an allegation as I understand it in the complaint. [00:16:09] Speaker 00: It's basically saying that Ernie Ball is in the market and it's doing what it's doing. [00:16:12] Speaker 00: It doesn't have any impact on Urbana. [00:16:14] Speaker 03: What Urbana would need is some sort of... It says you are selling under your patent the product that [00:16:23] Speaker 03: You had a set that they so everybody agrees that these compensated nuts they made them or have a patent on them You you make them they used to have customers those customers including I guess you have two clients here, right? [00:16:38] Speaker 03: I mean, yes, we're in can and owner or something Why isn't this? [00:16:44] Speaker 03: immediately understandable about what this is a [00:16:47] Speaker 00: I don't believe it creates a case of controversy between Ernie Ball and Irvana. [00:16:52] Speaker 03: It is enough under the Harris case and under the Supreme Court declaratory judgment case, MedImmune, which significantly relaxed our earlier threat [00:17:04] Speaker 03: jurisprudence in this area. [00:17:06] Speaker 03: If you are invoking a patent to take their customers away as to a product these guys make, that is an implicit assertion of indirect infringement and the Arris case says that's enough. [00:17:20] Speaker 00: It's not happening. [00:17:21] Speaker 00: It's not being done. [00:17:22] Speaker 00: How do we know? [00:17:23] Speaker 03: This is an allegation. [00:17:24] Speaker 03: We don't get to say what's happening. [00:17:26] Speaker 03: We get to say only what's alleged. [00:17:28] Speaker 00: Understood, Your Honor. [00:17:30] Speaker 00: Yirvana had to raise that in its opposition to the motion to dismiss, and they did not say that this was happening. [00:17:35] Speaker 00: It's the first time it's been said. [00:17:36] Speaker 00: Well, wait a minute. [00:17:37] Speaker 02: Look at paragraph 12 of the complaint. [00:17:39] Speaker 02: It says, beginning in 2010 and continuing thereafter, Ernie Ball has issued cease and desist orders for those who used Yirvana product. [00:17:48] Speaker 02: And it goes on to say, [00:17:52] Speaker 02: it was claimed that by Ernie Ball that Iran products infringed the 264 patent. [00:17:57] Speaker 02: So those are allegations, right? [00:17:59] Speaker 02: Correct. [00:18:00] Speaker 02: That you're seeking to use the 264 patent. [00:18:02] Speaker 00: Well, Your Honor, I don't believe they're allegations that we're seeking to use the 264 patent. [00:18:07] Speaker 00: What that's referring to is the intentional interference with economic advantage and in their [00:18:15] Speaker 00: appellate brief. [00:18:17] Speaker 03: In the cease and desist orders, you must have invoked something. [00:18:23] Speaker 00: Yes. [00:18:24] Speaker 00: The cease and desist orders took place in 2010. [00:18:28] Speaker 03: Paragraph 12 does not say today. [00:18:31] Speaker 03: It has this range beginning in 2010 and continuing thereafter. [00:18:35] Speaker 03: But at a minimum, [00:18:36] Speaker 03: Paragraph 21 is a present tense allegation and what it is referring to is immediately understandable in light of the background of what was happening during the period that you perhaps were authorized to do it by the injunction. [00:18:51] Speaker 03: But it explains what you're still saying. [00:18:56] Speaker 00: Actually, I think it's distinct, Your Honor, and it's distinct in that Ernie Ball had every right to say that the 264 patent was valid in 2010. [00:19:05] Speaker 00: It had the judgment. [00:19:07] Speaker 03: Stipulate, stipulate that it had that right. [00:19:08] Speaker 00: Right, and that's what we're talking about. [00:19:10] Speaker 00: That's what happened. [00:19:12] Speaker 00: There's no allegation that's continued after 2014. [00:19:15] Speaker 03: Paragraph 21 says, maintains. [00:19:18] Speaker 03: This was filed not in 2010, this was filed in what, early 2014 or something? [00:19:24] Speaker 03: I forget the exact dates but it was, yeah, 2014. [00:19:28] Speaker 03: March of 2014. [00:19:30] Speaker 03: In March of 2014 you were maintaining, that's what paragraph 21 says. [00:19:35] Speaker 03: You didn't have a right to do that after this court's January 2013 order or at least, at least they can say you didn't have a right because you didn't have an injunction at that point. [00:19:46] Speaker 00: I suppose the question is in what context it was maintaining. [00:19:49] Speaker 00: Was it being published to the market? [00:19:51] Speaker 00: No. [00:19:52] Speaker 00: Was anybody threatened by it? [00:19:54] Speaker 00: No. [00:19:54] Speaker 03: It couples it to continues to sell and license the sale of compensated nuts based on the patent. [00:20:02] Speaker 00: Correct. [00:20:03] Speaker 00: So Ernie Ball is selling and licensing to Hohner, which the license agreement took place prior to the court's decision. [00:20:11] Speaker 00: And that's continuing because the contract allows for it. [00:20:15] Speaker 00: And they're not out there trying to license it to other people. [00:20:19] Speaker 00: Can I ask you to switch to the other patent issue here? [00:20:27] Speaker 03: Yes. [00:20:29] Speaker 03: Why is there insufficient content in the allegation of infringement? [00:20:35] Speaker 03: And in particular, if you can address how many different compensated nuts are either [00:20:42] Speaker 03: It's either you or you here being both of your clients here, Hohner and Ernie Ball. [00:20:48] Speaker 03: So is there any doubt about what the product is that's at issue? [00:20:53] Speaker 00: Yes, I believe there is, Your Honor. [00:20:56] Speaker 00: The Urbana 956 patent talks about an adjustable nut, and it doesn't mention compensated. [00:21:01] Speaker 03: I didn't ask about the 956 patent. [00:21:04] Speaker 03: I asked about the 364. [00:21:06] Speaker 00: 364 patent. [00:21:08] Speaker 00: The 364 patent talks about a fixed sinusoidal nut member. [00:21:14] Speaker 00: It doesn't state compensated nut anywhere in the patent. [00:21:16] Speaker 00: It doesn't say tuning method anywhere in the patent. [00:21:20] Speaker 00: The Ernie Ball product, Ernie Ball makes many different types of compensated nuts for four string instruments, for six string instruments. [00:21:30] Speaker 00: The Hohner instruments are ukuleles, which are very short scale versus very long scale, which means that the [00:21:38] Speaker 00: The fretboard of the instrument and the length of the string is significantly different. [00:21:43] Speaker 00: Ernie Ball makes basses which have a very long... Does Hohner use more than one or more than a very small number of... They use several. [00:21:50] Speaker 03: There are four... Is the nut this whole bar? [00:21:52] Speaker 03: It's not actually... Correct. [00:21:54] Speaker 00: The nut is the bar at the end of the neck with the headstock which has various indentation points. [00:22:01] Speaker 00: And the contract with Hohner has [00:22:05] Speaker 00: at least four different compensated nuts and also has a compensated bridge, which works in conjunction with that, which is the subject of a separate patent, which is valid. [00:22:16] Speaker 00: And the Ernie Ball guitars, which have the compensated nut, don't have a corresponding patented bridge, uses existing technology for that. [00:22:25] Speaker 00: where Urbana is saying that compensated nuts are being used and that there's some tuning method being used. [00:22:31] Speaker 00: We don't know if they're talking about the design of the guitar in terms of some tuning method, what compensated nut is being used, how it's being used, if it's in conjunction with some compensated bridge. [00:22:42] Speaker 00: It's completely indefinite. [00:22:44] Speaker 00: And under Form 18, for example, paragraph 2, [00:22:50] Speaker 00: This is often a bit of a different issue, but they don't follow Form 18 in the direct infringement allegation. [00:22:55] Speaker 00: Paragraph 2 requires that in a direct infringement claim, they must truthfully plead ownership of the allegedly infringed patents throughout the alleged period of infringement and plead that it still owns the patent. [00:23:07] Speaker 00: And of course, when the complaint was filed, the 956 patent had expired in 2004, and the 346 patent had expired in 2011. [00:23:15] Speaker 00: So they had no valid patents when they filed the complaint. [00:23:20] Speaker 00: a valid existing limited liability company that was suspended when they filed a complaint. [00:23:24] Speaker 03: And all that's been cured, including the temporary expiration of the 346 for failure to pay maintenance fees, because there's life in fact in that patent. [00:23:32] Speaker 03: And at least if the documents say what Mr. Block said, they say they've been restored to their proper [00:23:43] Speaker 03: standing to sue status under California law and under California law, all of that is retrospective and wipes out earlier problems. [00:23:51] Speaker 03: So it seems to me the only real question about the 346 allegation is whether there's something insufficiently specific under Twombly about the identification of the accused products. [00:24:05] Speaker 00: Right. [00:24:06] Speaker 00: I believe it is insufficient as I've described. [00:24:07] Speaker 00: I think it's completely insufficient. [00:24:09] Speaker 00: There's no facts stated in the complaint, no specific effects alleged in the complaint, which would lead to a plausible claim. [00:24:17] Speaker 00: And just to address your honor's comment, the district court, one of the grounds for denial of leave to amend was the bad faith of Urbana and suing when you're a suspended corporation and you know it. [00:24:34] Speaker 00: suing on patents that are expired, and you know it, and not disclosing it in the complaint, not disclosing it in response to the opposition to the motion to dismiss his bad faith, and the district court so found, and the exercise of its discretion correctly denied link to amend. [00:24:50] Speaker 00: And the bad faith extends to all the causes of action in the complaint. [00:24:58] Speaker 00: So the complaint, as stated, [00:25:02] Speaker 00: The court correctly found that Paragraph 2 of Form 18 was not complied with because Urbana alleged that there were these valid patents which weren't. [00:25:11] Speaker 00: They didn't own either of these patents throughout the entire period, which they alleged they did, which was infringement from 2010 through the date of finding the complaint. [00:25:18] Speaker 00: Do you mean that they didn't own them? [00:25:20] Speaker 00: Well, they were not valid, so I believe they don't. [00:25:23] Speaker 03: What does one statement have to do with the other? [00:25:25] Speaker 00: When they're alleging in the complaint that there's infringement of the 346 patent from 2010 through the date of the filing of the complaint in 2014 and their patent is suspended in 2011. [00:25:35] Speaker 00: That means that they didn't own them? [00:25:37] Speaker 00: I believe for purposes of pleading Form 18. [00:25:40] Speaker 00: If you don't disclose that the patent's suspended, you don't technically, I think it can be construed to say you don't technically own the patent because it's not a valid patent. [00:25:48] Speaker 00: I mean, you can say you own an invalid patent, but then you can't sue on it. [00:25:54] Speaker 00: They also, again, under swambly, Nick Ball failed to identify the device which the defendant is making, selling, and using. [00:26:16] Speaker 00: Again, they were suing for cease and desist based on cease and desist orders which were made in 2010. [00:26:23] Speaker 00: I think they state in the opposition to the motion to strike and dismiss filed by Irvana, they state at Appendix 202, Ernie Ball wrongfully destroyed the business created by Irvana by preventing the use of its invention. [00:26:44] Speaker 00: It ended the relationship Irvana had established with ESP Guitars, the relationship it had with Hohner and others. [00:26:50] Speaker 00: Irvana's sales went to almost nothing in the years following 2010 as a result of the cease and desist orders made by Ernie Ball. [00:26:56] Speaker 00: So their argument in the declaration of Richard Logecana on which that's based [00:27:02] Speaker 00: indicates that in fact this happened in the past. [00:27:04] Speaker 00: They're essentially admitting it happened in the past, and that's what their argument is, and that the results of it have already taken place. [00:27:11] Speaker 00: So their vague language in their complaint is not sufficient to establish a declaratory relief or any other claim. [00:27:20] Speaker 00: So if there are any further questions. [00:27:23] Speaker 03: Can I ask under the SLAP statute, why are your statements that are being accused not a form of commercial speech and therefore outside the anti-SLAP statute, even if they're within the litigation privilege? [00:27:37] Speaker 00: Understood, Your Honor. [00:27:39] Speaker 00: The commercial speech exception to the anti-SLAP statute applies, and in this argument it's set out in detail in Appendix 270 [00:27:48] Speaker 00: through 274, which was our reply brief on the motion to dismiss. [00:28:06] Speaker 00: Essentially, the commercial speech exception only applies if there is some sort of element of trying to [00:28:17] Speaker 00: solicit customers, basically directed for purposes of advertising or soliciting customers. [00:28:22] Speaker 00: The speech that Ernie Ball was involved in was publicizing patent rights and enforcing a disrecorded judgment. [00:28:29] Speaker 00: So it had nothing to do with commercial speech. [00:28:30] Speaker 00: To get customers, you took their customers. [00:28:33] Speaker 00: No, just to publicize [00:28:35] Speaker 00: to publicize the citizen patent, it would be like cease and desist orders in contemplation of litigation, which is protected and falls under the statute. [00:28:43] Speaker 03: Falls under the anti-slap statute? [00:28:45] Speaker 03: Correct. [00:28:46] Speaker 03: Even if it is against customers and your specific customers, what's your best [00:28:55] Speaker 03: case citation that says when you issue a cease and desist, or I don't know, issue is a little bit weird, you're not at court, when you send a cease and desist letter to a customer and say stop dealing with them, buy from us instead, because when you're dealing with them you're infringing our patent, that that's covered by the anti-slot statute. [00:29:17] Speaker 00: Alright, there was no element of buy from us instead. [00:29:20] Speaker 00: in any of the communications. [00:29:22] Speaker 00: So that's one issue. [00:29:23] Speaker 03: The citation appears... But in fact, one thing followed from the other. [00:29:30] Speaker 03: According to the complaint, you know, we don't have a trial here, so... Understood, Your Honor. [00:29:35] Speaker 03: Understood. [00:29:35] Speaker 03: I'm sorry. [00:29:36] Speaker 03: I asked you for a citation. [00:29:37] Speaker 03: You keep trying to give it to me, and I keep interrupting you. [00:29:39] Speaker 03: What is the citation? [00:29:40] Speaker 00: It appears that our appendix 272, and it basically says, making the public aware of wrongful activity of a competitor is not commercial speech. [00:29:50] Speaker 00: And it is speech of the subject to the anti-slab statute. [00:29:53] Speaker 03: So in other words... Yes, right, but as you describe it, that's not an answer to my question. [00:29:59] Speaker 03: A cease and desist letter directed to Hohner, or Cornucopia, is that the other... No, Hohner and Cornucopia. [00:30:06] Speaker 03: Cornucopia. [00:30:07] Speaker 03: Correct. [00:30:08] Speaker 03: Says, you are engaged in an infringement of our patent. [00:30:15] Speaker 03: A, the public doesn't, that's not directed to the public, and... Correct. [00:30:19] Speaker 03: Correct. [00:30:19] Speaker 03: The sequel I is, they start doing business with you, or at least Hohner does. [00:30:24] Speaker 00: Well, for example, Cornucopia was the company that was making honers compensated nuts, and the idea was just to stop doing that. [00:30:31] Speaker 00: And there's not necessarily a connection there. [00:30:34] Speaker 00: If you say cease and desist from producing leads, we're the ones that are producing leads. [00:30:38] Speaker 00: It's not necessarily, the patent allows an exclusion of rights to create devices. [00:30:45] Speaker 00: And it doesn't necessarily follow that we say, oh, we want to make these for you. [00:30:49] Speaker 00: That has to be an additional level. [00:30:51] Speaker 03: And I mentioned the litigation privilege. [00:30:55] Speaker 03: There's no commercial speech exception to the litigation privilege. [00:31:00] Speaker 03: And it may be that the economic harm that you did to them is protected by the litigation privilege. [00:31:07] Speaker 03: But the only basis for the district court to assign [00:31:13] Speaker 03: attorney's fees in this case was the violation of the anti-slap statute. [00:31:16] Speaker 03: So it might actually make a real difference which was the basis for saying what you said to Cornucopia and Conor was okay. [00:31:30] Speaker 00: Right, and it falls within the commercial speech exception. [00:31:33] Speaker 00: Because what was said and what was alleged to be said falls within the commercial speech exception. [00:31:38] Speaker 00: falls into the anti-slap statute. [00:31:39] Speaker 00: It was cease and desist letters. [00:31:42] Speaker 00: It wasn't communicating with customers. [00:31:44] Speaker 00: It wasn't saying, please do business with us. [00:31:45] Speaker 00: And that was not alleged. [00:31:47] Speaker 00: And it was not argued in the opposition to the anti-slap motion either. [00:31:52] Speaker 02: OK. [00:31:53] Speaker 02: Beyond your time frame, thank you. [00:31:55] Speaker 00: Thank you, Your Honor. [00:32:09] Speaker 05: Please the court. [00:32:10] Speaker 05: Claims 12 through 20 and 25 to 28 of the 364 patent of Dudley Gimple contain the same defect that this court opined in the prior decision made them indefinite. [00:32:21] Speaker 05: They continue to this day to be lorded over Yirvana. [00:32:24] Speaker 05: The 956 patent which we mentioned was never asserted in the underlying complaint. [00:32:28] Speaker 05: The 346 patent lapsed. [00:32:31] Speaker 05: because Ernie Ball and Hohner put Yovanna out of business. [00:32:35] Speaker 05: That patent was revived. [00:32:37] Speaker 05: It is not bad faith to assert a patent interest. [00:32:40] Speaker 03: Why is the allegation and the complaint about what the accused products are sufficient under the Federal Rules of Civil Procedure Act 2.347? [00:32:53] Speaker 05: Because in the decision in 2012-1276 written by Judge Lorry, it stated in hot verbe, there was never an invention under the 2-6-4 patent, the 2-4-6 patent. [00:33:07] Speaker 02: Yirvana's logikonomi... Wait, are we talking about... I'm confused which patent we're talking about. [00:33:12] Speaker 02: We're talking about the 3-4-6 is your patent. [00:33:14] Speaker 05: The 346 patent is Irvana's patent. [00:33:17] Speaker 05: Are you talking about that now or are you talking about the 264 patent is the Gimple patent. [00:33:21] Speaker 05: That was the subject of the prior hearing. [00:33:23] Speaker 03: The question I asked you was, your count one is about declaratory judgment of their vat. [00:33:29] Speaker 03: Now we're going on to count two. [00:33:30] Speaker 03: Your affirmative patent infringement count. [00:33:36] Speaker 03: The 346 patent. [00:33:37] Speaker 03: The 346. [00:33:38] Speaker 03: And the judge, the district court said, [00:33:40] Speaker 03: dismissed because not a variety of things, but not specific enough. [00:33:45] Speaker 03: I just want to focus on not specific enough. [00:33:47] Speaker 03: And the question is, is that specific enough to identify what the accused products are? [00:33:53] Speaker 05: All of the compensated nuts that have ever been made by Hohner and Ernie Ball are based upon the invention that is covered by the 346 patent. [00:34:02] Speaker 05: That's what Judge Lurie's prior decisions respectfully submitted said. [00:34:07] Speaker 05: The reason why the 346 patent covers them is because there's a copious list of every product that they copied from my client. [00:34:14] Speaker 05: It is of record below the same as all the judicial notice requests. [00:34:18] Speaker 05: The 346 patent was briefly out of term because the company was put out of... [00:34:24] Speaker 05: The Irvana patent that was 346 was out of term for a brief period of time because they didn't have the money to pay the maintenance fee. [00:34:32] Speaker 05: It was reinstated and it is a valid patent to sue on. [00:34:36] Speaker 05: Council confuses valid and invalid with lapsed and expired throughout the papers as did Mr. Iverson. [00:34:43] Speaker 05: Neither of them are patent lawyers. [00:34:45] Speaker 05: When a patent lapses for want of maintenance fees, it is not bad faith in any case that I've ever seen and I looked. [00:34:51] Speaker 05: to assert that patent when it has been reinstated. [00:34:53] Speaker 05: The previous decision of this very court said that the patent that Ernie Ball got was a copy of our patent. [00:35:02] Speaker 05: Our patent has a 25-year history that goes back before and was the only invention of the intonated nuts. [00:35:08] Speaker 05: The NBI tuning system, which is throughout the papers in this case and below, that is made by Hohner and worked on with Ernie Ball, is in fact a copy of [00:35:20] Speaker 05: the stuff that's disclosed in the 3-4-6 patent. [00:35:22] Speaker 05: There's no dispute about that. [00:35:23] Speaker 05: That is also throughout the record. [00:35:28] Speaker 05: We have never asserted the 9-5-6 patent. [00:35:32] Speaker 05: That was a prior patent that lapsed. [00:35:34] Speaker 05: A lapse patent is not invalid, and I'm not sure why it's bad faith to assert this. [00:35:39] Speaker 05: So I'm stepping down now because you're telling me my time is up. [00:35:42] Speaker 05: However, we came to this court because we were sued by Ernie Ball in 2010. [00:35:49] Speaker 05: It turned out when we got to this court, they said there was no infringement. [00:35:52] Speaker 05: And the fact that they sued on a patent that was invalid is based upon this language in the claim. [00:35:56] Speaker 05: This is all that I wanted to put in the record. [00:35:58] Speaker 05: On claims 12 to 20 and 25 to 28, [00:36:00] Speaker 05: It says, one or more fixed intonation points being configured such that a line extending through one or more fixed intonation portions does not form a sinusoidal arc. [00:36:09] Speaker 05: That has been decided by this court to be indefinite, to not be subject to any interpretation that would cover anything except all the compensated nuts. [00:36:18] Speaker 05: They have used that to put us out of business, and to this day, they use their viral internet intimidation to bully us. [00:36:26] Speaker 05: If we are in bad faith for bringing up the fact that this court pointed out a claim was indefinite and that the other claims with the same defect are indefinite, then you can send me back to California. [00:36:36] Speaker 05: You can put me in jail. [00:36:40] Speaker 02: Can I just ask? [00:36:41] Speaker 02: Yes. [00:36:41] Speaker 02: Your time is up, so I just have one really quick question, which is to try to clarify the point you were making before about official notice. [00:36:48] Speaker 02: Because I'm not aware. [00:36:49] Speaker 02: I mean, there's a pending notice. [00:36:50] Speaker 02: So can you just point to it? [00:36:52] Speaker 02: You're saying they put the stuff in the record. [00:36:54] Speaker 02: They're responsible for that. [00:36:55] Speaker 02: Can you give us a citation to the record for the material you're talking about? [00:36:58] Speaker 05: I have a copy of a document that's marked as exhibit three to request traditional notice. [00:37:02] Speaker 05: It's put in at 114 of the appendix. [00:37:06] Speaker 05: The appendix to this. [00:37:08] Speaker 05: The appendix to this appeal includes all of the underlying documents from below because Mr. Wells put in various requests for judicial notice. [00:37:17] Speaker 05: He has it in his hand right now. [00:37:19] Speaker 05: It says in that set of documents all of the facts that are necessary to support this. [00:37:28] Speaker 05: Appellees here are artful dodgers of any allegations. [00:37:32] Speaker 05: They have put our client out of business under an invalid patent that your court says is invalid. [00:37:38] Speaker 02: I'm looking at 114 in the appendix and it's just one page that just says exhibit three. [00:37:46] Speaker 02: Is there more than that? [00:37:48] Speaker 02: Am I missing something? [00:37:50] Speaker 05: I have a whole stack of documents behind that. [00:37:54] Speaker 02: Would you like me to submit that along with the tax record? [00:37:56] Speaker 02: Well, not if it's in the appendix already, no. [00:38:02] Speaker 02: Okay, so that's if you're referring to the reference in the appendix. [00:38:04] Speaker 02: Okay. [00:38:06] Speaker 04: Thank you very much. [00:38:07] Speaker 02: Thank you. [00:38:08] Speaker 02: We thank both counsel and the cases.