[00:00:26] Speaker 02: Good morning. [00:00:26] Speaker 02: May it please the court? [00:00:28] Speaker 02: Excuse me. [00:00:28] Speaker 02: My name is Spencer Hosey. [00:00:29] Speaker 02: I'm here on behalf of the appellant, Dr. Anastasia Maka. [00:00:36] Speaker 02: Your Honor, no party has the right to be alone in court. [00:00:40] Speaker 02: There has to be a live controversy at every stage of any litigation. [00:00:45] Speaker 02: There has to be a real set of parties fighting about a real object. [00:00:51] Speaker 02: That ceased to be true in this case in the fall of 2012. [00:00:54] Speaker 02: Why did it cease to be true? [00:00:56] Speaker 02: Because my client agreed with Jen Sparrow that she could not bring and sustain a 256 correction of inventorship claim. [00:01:06] Speaker 02: We said, you're right. [00:01:08] Speaker 02: We said, we will not oppose your summary judgment motion. [00:01:11] Speaker 02: That was explicit in a letter sent on 1031 to the court. [00:01:16] Speaker 02: It was explicit in our non-opposition. [00:01:19] Speaker 02: We even filed on November 20 of 2012 [00:01:23] Speaker 02: a summary judgment motion saying, because we have agreed, no 256 action will lie. [00:01:29] Speaker 02: Their declaratory judgment, which was premised on their reasonable apprehension of a 256 action, lost its jurisdictional footing. [00:01:40] Speaker 02: What is your best case for that proposition? [00:01:43] Speaker 02: I would say it's the organic seed case issued by this court in 2014, as memory serves. [00:01:51] Speaker 02: Inorganic seed. [00:01:53] Speaker 02: A group of organic farmers sued. [00:01:55] Speaker 02: They said, we're concerned that Monsanto is going to enforce its patents against us. [00:02:00] Speaker 02: Monsanto said, well, no. [00:02:01] Speaker 02: Look at our website. [00:02:02] Speaker 02: We have a statement saying, we do not enforce our patents against incidental seed contamination. [00:02:09] Speaker 02: The plaintiff said, well, that's not enough. [00:02:11] Speaker 02: We still have an apprehension that you're going to sue us, regardless of what your website says. [00:02:15] Speaker 02: So the lawyer sent a letter saying, we won't sue you. [00:02:18] Speaker 02: And the judge of this court said, well, that's enough. [00:02:21] Speaker 04: Well, is that what happened here? [00:02:23] Speaker 04: Because I don't think that's what happened here. [00:02:24] Speaker 04: It seems to me in our cases, what we say is you have to have a binding commitment not to sue. [00:02:31] Speaker 04: Well, when you have a binding commitment that you're not going to sue someone, which seems to be your case, or you actually dismissed your claims with prejudice, that's enough to remove jurisdiction. [00:02:42] Speaker 04: Saying you're not going to oppose the summary judgment motion seems to me something far different in terms of its consequences for jurisdiction than what those cases stand for. [00:02:51] Speaker 04: So tell me why you think I'm wrong. [00:02:52] Speaker 02: Respectfully, Your Honor, here's why. [00:02:54] Speaker 02: In that organic seed case, that exact question was raised. [00:02:58] Speaker 02: Monsanto said, no, we need a binding covenant not to sue. [00:03:01] Speaker 02: And Judge Dyke said, no, you don't. [00:03:03] Speaker 02: They have made these affirmative representations in the record [00:03:07] Speaker 02: under judicial law. [00:03:09] Speaker 04: Did your client make those affirmative representations in this record? [00:03:12] Speaker 02: Absolutely and repeatedly. [00:03:15] Speaker 02: We said it in a letter on October 31st. [00:03:18] Speaker 02: We filed a state claim in the city court for Baltimore City where we said in our pleading [00:03:26] Speaker 02: We do not have federal right. [00:03:28] Speaker 02: We do not have federal recourse. [00:03:30] Speaker 04: We have no right. [00:03:31] Speaker 04: What's in the record in this case? [00:03:33] Speaker 04: We're talking about this judge having determined that he had retained jurisdiction. [00:03:37] Speaker 04: What did you tell him? [00:03:40] Speaker 02: The October 31st letter went to Judge Garbus below. [00:03:43] Speaker 02: Our state complaint was removed to his court. [00:03:46] Speaker 02: It was in his court and in the record here. [00:03:50] Speaker 02: Our non-opposition, where we said we agree, please [00:03:54] Speaker 02: You know, we agree. [00:03:55] Speaker 02: Issue the summary judgment. [00:03:58] Speaker 02: We agree with them. [00:03:58] Speaker 02: We can't, on this record, correct to invalidate. [00:04:03] Speaker 02: Even though they had purloined my client's intellectual property, there was nothing we could do about it in federal court, given how they had done it. [00:04:10] Speaker 02: We said, you're right. [00:04:12] Speaker 02: We don't have a case in federal court. [00:04:15] Speaker 02: Grant the summary judgment, Your Honor. [00:04:17] Speaker 02: We said it in writing and explicitly. [00:04:19] Speaker 02: It was argued on January 24 in the oral argument. [00:04:23] Speaker 02: We said, look, we have agreed with this. [00:04:27] Speaker 02: But because we've agreed and because we are saying grant the summary judgment, their declaratory judgment, which finds its footing in their apprehension of our case, also lost its jurisdictional footing. [00:04:41] Speaker 04: This case was over. [00:04:42] Speaker 04: When was it over? [00:04:44] Speaker 04: When the summary judgment was granted or just when you made the statement that we're not going to oppose the summary judgment? [00:04:49] Speaker 02: It was moot. [00:04:50] Speaker 02: and consequently over, Your Honor, on November 1st, 2012. [00:04:55] Speaker 04: Well, when did the judge grant the summary judgment? [00:04:57] Speaker 02: The judge granted the summary judgment on the record on January 24th, 2013, where he said, and I quote, the summary judgment is granted. [00:05:06] Speaker 02: Not forward-looking, is granted. [00:05:09] Speaker 04: OK, I'm sorry. [00:05:10] Speaker 04: I lost track of the dates. [00:05:12] Speaker 04: When are you saying that the case was mooted out? [00:05:14] Speaker 02: The case became moot no later than November 1st, 2012, [00:05:19] Speaker 02: We filed a state court complaint conceding in a binding condition. [00:05:25] Speaker 04: I guess I may be wrong on this. [00:05:27] Speaker 04: I'm just a little confused. [00:05:28] Speaker 04: Are you saying that just by the fact that you came in and you said, we're not going to oppose the summary judgment, are you saying that the court then lost authority to grant the summary judgment? [00:05:39] Speaker 02: No. [00:05:39] Speaker 02: I'm not saying that. [00:05:40] Speaker 02: We're saying, do grant the summary judgment. [00:05:43] Speaker 02: But at that point, that case was over. [00:05:46] Speaker 02: And why does that matter? [00:05:47] Speaker 02: Because six months later, [00:05:49] Speaker 02: It was over at the point where you conceded. [00:05:53] Speaker 04: Yes. [00:05:54] Speaker 04: So in your view, he didn't have authority to grant the motion because the case was moved once you made this representation. [00:06:01] Speaker 02: No. [00:06:02] Speaker 02: He can grant that order because we've asked him to. [00:06:05] Speaker 02: But at that point, the case is over. [00:06:08] Speaker 02: What he can't do, your Honor. [00:06:09] Speaker 04: Well, if the case is over, how did he have authority or jurisdiction to grant the summary judgment? [00:06:13] Speaker 02: Because it was over for the very reason we said grant that decision. [00:06:18] Speaker 02: I mean, you can't deprive a court of jurisdiction and deny a ruling by saying, well, gee, you're right, but don't rule. [00:06:24] Speaker 02: We said, gee, they're right. [00:06:26] Speaker 02: Rule. [00:06:26] Speaker 02: But at that point, the case is over. [00:06:28] Speaker 02: That's the point where the court rules. [00:06:30] Speaker 02: Certainly no later than that, Your Honor. [00:06:32] Speaker 02: And that's January 24, 2013. [00:06:34] Speaker 02: He says it on the record. [00:06:36] Speaker 02: I'm granting the summary judge promotion. [00:06:39] Speaker 02: They were alone in court. [00:06:40] Speaker 02: We weren't disputing it. [00:06:42] Speaker 02: insisted that we go forward in a federal jurisdiction where they said, and we agreed. [00:06:47] Speaker 04: So why did they lose jurisdiction? [00:06:49] Speaker 04: Not because they didn't dispute it, not because there was no, I mean, there are plenty of summary judgment motions that are granted in cases where one side wins and one side loses. [00:06:57] Speaker 04: That's what happened in this case. [00:06:59] Speaker 04: Now, you're saying it's different because you agreed not to oppose the summary judgment motion. [00:07:04] Speaker 04: So that's what drew jurisdiction from the district court. [00:07:06] Speaker 02: Your Honor, there are two cases here. [00:07:08] Speaker 02: There's the crossing 256 cases. [00:07:11] Speaker 02: the correctional and mentorship cases, and then there's the subsequent state tort claims that were then removed to the federal court and went forward. [00:07:19] Speaker 02: Two separate cases. [00:07:22] Speaker 02: The jurisdictional basis for the 256 case was over before we had the summary judgments even filed on the removed state claims. [00:07:30] Speaker 02: There has to be a jurisdictional basis for both of those cases in federal court. [00:07:35] Speaker 02: You cannot use the 256 claim [00:07:38] Speaker 02: to pony up jurisdiction for the state remove flex, because it was over. [00:07:44] Speaker 04: Just moving on to the next issue, because the clock is running. [00:07:48] Speaker 04: What exact date do you argue you had noticed of the constructive fraud in this case? [00:07:53] Speaker 04: This goes to the statute of limitations. [00:07:55] Speaker 02: It does indeed, Your Honor. [00:07:56] Speaker 02: And I think it depends on which patent. [00:07:58] Speaker 02: I think in fairness for the first patent, which is the composition of matter patent, [00:08:04] Speaker 02: given that they filed an application claiming that in the fall of 2006, arguably, Dr. Mock was on constructive notice. [00:08:13] Speaker 02: I don't think that puts her on constructive notice on the second method patent, which hadn't even been applied for, much less issued. [00:08:20] Speaker 02: So I think the answer to that question depends on which right you're talking of specifically. [00:08:29] Speaker 00: All right. [00:08:29] Speaker 02: I have a minute and a half left on jurisdiction. [00:08:35] Speaker 02: It's really important in our view, and forgive me if I'm hitting this too hard, that there were two separate cases, that there was initial jurisdiction until the parties agreed that no cause of action would lie under 256. [00:08:50] Speaker 02: At that point, the 256 case is over, and that takes you to what jurisdictional basis existed for the removed state case. [00:08:59] Speaker 04: Can I ask you just a technical kind of question? [00:09:02] Speaker 04: The parties agree. [00:09:03] Speaker 04: I mean, there is a cause of action on 256. [00:09:06] Speaker 04: I may be wrong on this, but it seems to me there is a cause of action. [00:09:10] Speaker 04: It's that no one in their right mind would bring it because it would sort of effectively invalidate the patent. [00:09:17] Speaker 04: Am I wrong about that? [00:09:18] Speaker 04: I haven't had very many cases involved. [00:09:19] Speaker 04: It's not like there's no cause of action. [00:09:21] Speaker 04: Your client could have brought a 256 claim. [00:09:25] Speaker 04: It's just in bringing that, she would have [00:09:29] Speaker 04: sort of resulted in both people are losers at the end of the day, right? [00:09:34] Speaker 02: Respectfully no, Your Honor. [00:09:35] Speaker 02: This is not just the baby out with the bathwater. [00:09:37] Speaker 02: Under the law, although it's never been addressed by this court, but under various district court opinions, one does not have a 256 correction action if correcting the patent would perforce invalidate the patent. [00:09:51] Speaker 02: Why not? [00:09:51] Speaker 02: Because 256 is a saving statute and courts do not correct to invalidate. [00:09:57] Speaker 02: That was Jim Sparrow's point, given the record developed in the district court. [00:10:02] Speaker 02: We looked at that. [00:10:02] Speaker 02: We looked at the record and said, you're right. [00:10:05] Speaker 02: We said, please, your honor, enter the summary judgment. [00:10:08] Speaker 02: These crossing two, five, six cases are over. [00:10:11] Speaker 01: But there has to be more reasoning to it. [00:10:16] Speaker 01: If you have the wrong inventorship, the patent's invalid. [00:10:19] Speaker 01: Doesn't matter what else. [00:10:22] Speaker 01: Correct, your honor. [00:10:23] Speaker 01: In order to decline, to challenge inventorship, [00:10:26] Speaker 01: isn't going to somehow purify or stabilize the patent should it ever end up in litigation for infringement or something else. [00:10:36] Speaker 01: That tank is fundamental. [00:10:39] Speaker 02: Absolutely true. [00:10:40] Speaker 02: You know, there was a reason we didn't sue them to correct inventorship. [00:10:44] Speaker 02: They sued us in a declaratory judgment. [00:10:46] Speaker 01: We're going or declining to bring a two, five, six action or something else, whether you're in federal or state court, really is irrelevant. [00:10:56] Speaker 01: sent into the ultimate validity of the patent that was filed. [00:11:00] Speaker 01: If, in fact, she is correct and has made an event of contribution, that's a question that we never really got to. [00:11:09] Speaker 02: Correct. [00:11:10] Speaker 02: I agree with that. [00:11:11] Speaker 02: Nothing that happened. [00:11:13] Speaker 01: Then I don't understand what we're arguing about. [00:11:16] Speaker 02: We're arguing about jurisdiction and the fact that once the parties agreed that she had neither right nor recourse from federal court, [00:11:26] Speaker 02: The federal court lost jurisdiction so that the state claims that had been subsequently filed in the city court for Baltimore should not have been removed absent an independent federal jurisdictional basis for those state claims. [00:11:39] Speaker 02: And that does not exist here under the Gunn v. Minson case. [00:11:42] Speaker 02: And if I may, why not? [00:11:45] Speaker 02: Because Dr. Mocka can prevail in state court without proving federal inventorship. [00:11:50] Speaker 02: Because she has a property right under the Johns Hopkins intellectual property policy [00:11:56] Speaker 02: that gives her an interest, even absent federal inventorship. [00:12:01] Speaker 01: An interest in an invalid patent. [00:12:05] Speaker 01: Her IP claims... What is the benefit? [00:12:08] Speaker 01: It doesn't look to me as if there are economic consequences. [00:12:12] Speaker 01: It's entirely a reputational aspect. [00:12:15] Speaker 01: It should be remedied by publication. [00:12:18] Speaker 02: Your Honor, we can't predict what's going to happen. [00:12:21] Speaker 02: There are no damages yet, right? [00:12:23] Speaker 00: No damages yet. [00:12:24] Speaker 02: And this patent may not be challenged. [00:12:25] Speaker 02: And if it's challenged, it may survive. [00:12:27] Speaker 02: I'm sure Jen Sparrow will argue vigorously and robustly that it's a valid patent, both valid patents. [00:12:32] Speaker 02: So we don't know what we know. [00:12:35] Speaker 02: is that they took our IP. [00:12:36] Speaker 02: We have no right, no remedy in federal court. [00:12:38] Speaker 02: We agreed. [00:12:39] Speaker 02: We filed state claims. [00:12:40] Speaker 02: They remove our state claims, and there's no jurisdictional basis for those state claims being in federal court. [00:12:46] Speaker 01: And we weren't quiet. [00:12:48] Speaker 01: If you prevail in the state claims, then that adds to the per se invalidity of the patent. [00:12:55] Speaker 01: No. [00:12:56] Speaker 02: I'm glad you asked that, Your Honor, and knowingly as to why. [00:13:00] Speaker 02: Under the IP policy, we can prevail in the state claims, even shy of proving full federal inventorship status. [00:13:09] Speaker 02: The IP policy says, intellectual property, as used here in this policy, is something of value, whether it's patentable or not. [00:13:17] Speaker 02: So we could build a record that shows that she makes a contribution compensable under the policy that falls shy of being full federal inventorship. [00:13:27] Speaker 02: That record would actually enhance the patent. [00:13:30] Speaker 02: But we don't know. [00:13:31] Speaker 02: I mean, this is a jurisdictional dispute. [00:13:33] Speaker 02: We have never had a substantive day in court on the merits of the dispute. [00:13:37] Speaker 02: OK. [00:13:38] Speaker 02: You're into your rebuttal. [00:13:40] Speaker 04: I am. [00:13:40] Speaker 04: Thank you very much. [00:13:47] Speaker 03: Good morning, Your Honors. [00:13:48] Speaker 03: John Nelson of Arnold & Porter for the appellees. [00:13:51] Speaker 03: May it please the court. [00:13:52] Speaker 03: From the moment that the appellant answers the complaint, the declaratory judgment complaint in the original 772 case, [00:13:59] Speaker 03: to the moment she argued against summary judgment in the second case, she made it clear that she wanted to be in federal court. [00:14:05] Speaker 03: And she thought it was the proper place for her to be. [00:14:08] Speaker 03: She asked to be. [00:14:09] Speaker 04: Yeah, but if this is a jurisdictional question, then why does that matter? [00:14:12] Speaker 03: Well, you're right. [00:14:13] Speaker 03: Parties cannot confer jurisdiction on each other or agree to the court's jurisdiction. [00:14:18] Speaker 03: And the district court was very cognizant of that, which is why it went to great lengths to assure itself of both its independent jurisdiction over the state law claims and its supplemental jurisdiction. [00:14:28] Speaker 03: Now, something that has been raised can be waived. [00:14:31] Speaker 03: And that's this objection to what happened procedurally. [00:14:34] Speaker 03: Now, just to get to that issue. [00:14:37] Speaker 03: Now, procedurally, what happened was that this second case was filed. [00:14:42] Speaker 03: Oh, and let me just address one thing very quickly. [00:14:46] Speaker 03: There's a suggestion that was made by the appellant's counsel that from the beginning of this suit, she always made it clear [00:14:54] Speaker 03: that she challenged jurisdiction. [00:14:56] Speaker 03: That was not the case. [00:14:57] Speaker 03: She agreed to jurisdiction in her pleadings. [00:15:00] Speaker 03: She asserted an affirmative counter-claim to correct inventorship, invoking the court's jurisdiction. [00:15:06] Speaker 03: She threatened to file suit, which created the controversy in the first place. [00:15:11] Speaker 03: It was not a case of they sued us. [00:15:13] Speaker 03: It was a case of threatening to bring a section 256 inventorship action. [00:15:18] Speaker 03: That's an A283 to 284. [00:15:22] Speaker 03: Nothing transpired in terms of subsequent events to change things until Ginsbara moved for summary judgment. [00:15:30] Speaker 03: There was no withdrawal of the inventorship claim. [00:15:33] Speaker 03: There was no change. [00:15:34] Speaker 03: There's no amendment to her pleadings. [00:15:36] Speaker 03: Now telling me, there's a suggestion that when Ginsbara first raised this issue, [00:15:42] Speaker 03: Dr. Maka said, oh, I agree. [00:15:43] Speaker 03: That's not actually correct. [00:15:45] Speaker 03: One looks at the docket. [00:15:47] Speaker 03: Item 31, this is on A. But again, I'm a little confused. [00:15:51] Speaker 04: I mean, you may have good arguments, but I'm not sure I think this is one of them. [00:15:55] Speaker 04: Because I don't, I mean, as I said, we've established a double-waved jurisdiction. [00:15:59] Speaker 04: And so the real question it seems to be on that point to be whether or not, and our cases clearly established, whether I agree with your friend or not, they clearly established [00:16:09] Speaker 04: Even if the plaintiff, if there is jurisdiction in the first instance, it can be mooted out by some action. [00:16:15] Speaker 04: So why is the summary judgment motion, they're agreeing, they're not contesting the summary judgment motion, not sufficient to withdraw jurisdiction, if that's the right word? [00:16:26] Speaker 03: That's an important question. [00:16:28] Speaker 03: And I agree with Mr. Hosey that the best case, or the most pertinent case, is probably the organic seed case. [00:16:34] Speaker 03: In that case, Monsanto said from the first, we don't intend to sue. [00:16:38] Speaker 03: We don't intend to sue. [00:16:39] Speaker 03: We don't intend to sue. [00:16:41] Speaker 03: And that was the basis of a binding admission that created, deprived the court, or said there is no controversy. [00:16:48] Speaker 03: Here, Dr. Mockus said, we intend to sue. [00:16:51] Speaker 03: We want to go to trial up until the moment the summary judgment was filed. [00:16:55] Speaker 03: There's not a case that I'm aware of in this court's history or any other court that said, you can deprive a court of jurisdiction [00:17:04] Speaker 03: When you see a summary judgment brief and realize, oh, I shouldn't have brought this claim in the first place. [00:17:09] Speaker 03: You can deprive the court of jurisdiction to rule on a claim because you realize it was meritless to begin with. [00:17:15] Speaker 03: And that really gets to sort of the second bucket of jurisdictional arguments that have been made by the appellant in this case. [00:17:22] Speaker 03: It's very clear that a claim that it fails on the merits does not mean that when the court rules to that effect, it loses its jurisdiction. [00:17:32] Speaker 03: The Bell v. Hood case says that from the Supreme Court. [00:17:35] Speaker 03: The Steele case says that from the Supreme Court. [00:17:37] Speaker 03: Even when the plaintiff lacks statutory standing, the court still has power to rule on the merits. [00:17:45] Speaker 03: Engaged learning from this case says the same thing. [00:17:48] Speaker 03: So in terms of the supplemental jurisdiction issue, what happened was the motion for summary judgment was brought simultaneously [00:17:58] Speaker 03: Dr. Maka filed her state law claims in Baltimore. [00:18:02] Speaker 03: Jens Baer removed them. [00:18:04] Speaker 03: There was no motion to remand. [00:18:05] Speaker 03: Dr. Maka didn't say, these don't belong in federal court. [00:18:08] Speaker 03: She, in fact, at the hearing on that motion to dismiss those claims, said, we want to be in federal court. [00:18:15] Speaker 03: So as a result, the district court said, well, let me analyze this issue, because I'm going to analyze gun. [00:18:20] Speaker 03: And I also want to analyze supplemental jurisdiction. [00:18:23] Speaker 03: But the court sent a letter to the parties. [00:18:26] Speaker 03: And in the letter to the parties, this is probably as important as any document in the case. [00:18:33] Speaker 03: The letter in response is at A730 and A731. [00:18:37] Speaker 03: The court asked Dr. Maka, Consparag, do you agree that I would have supplemental jurisdiction if this case were consolidated into the first case? [00:18:50] Speaker 03: And at this point, summary judgment, the court had said, I intend to grant that. [00:18:54] Speaker 03: But do you agree with this procedure whereby I will consolidate these two just to verify that I have supplemental jurisdiction over the state law claim? [00:19:03] Speaker 03: Dr. Maka said yes. [00:19:04] Speaker 03: I agreed to that. [00:19:06] Speaker 03: Then he said, Dr. Maka, do you want to be in federal court? [00:19:09] Speaker 03: Dr. Maka said yes. [00:19:11] Speaker 03: Then he said, do you agree that these are the same facts and transactions for purposes of that analysis? [00:19:16] Speaker 03: Dr. Maka said yes. [00:19:19] Speaker 03: Case proceeded through six months, seven months of fact discovery. [00:19:23] Speaker 03: became clear after that fact discovery that Dr. Maka's claims were time barred for reasons that I can discuss. [00:19:31] Speaker 03: At that point in time, there's a summary judgment hearing. [00:19:33] Speaker 03: Even at that summary judgment hearing, Dr. Maka didn't say, Your Honor, you don't have jurisdiction to consider these issues. [00:19:40] Speaker 01: Never. [00:19:41] Speaker 01: Was the claim of time buyer talking about the constructive fraud? [00:19:44] Speaker 03: Yes. [00:19:45] Speaker 03: The one claim at issue. [00:19:46] Speaker 03: And that's something that needs to be very clear. [00:19:48] Speaker 01: There's really no time buyer to inventorship, is there? [00:19:51] Speaker 01: No, that was a separate. [00:19:52] Speaker 03: There was no statute of limitations issue with respect to the inventorship claims. [00:19:56] Speaker 03: But for the state law claims, there was. [00:19:59] Speaker 03: But the court ruled on two of the three on independent grounds. [00:20:02] Speaker 03: It said, you can't bring a conversion claim for theft of intangible property in Maryland. [00:20:07] Speaker 03: That's not addressed in the opening brief. [00:20:10] Speaker 03: That's the court's ruling. [00:20:11] Speaker 03: It's that unjust enrichment is a remedy. [00:20:13] Speaker 03: It's not a claim. [00:20:14] Speaker 03: It's a remedy for your constructive fraud claim. [00:20:17] Speaker 03: That's not addressed. [00:20:18] Speaker 03: It's that you don't have any claim against Genspera based on your theory of damages. [00:20:22] Speaker 03: Your theory of damages is against your former mentors, Dr. Isaacs and Dr. Denmead. [00:20:27] Speaker 03: No claim against Genspera. [00:20:29] Speaker 03: So all that was left was a constructive fraud claim against two of the appellees, Dr. Isaacs and Dr. Denmead. [00:20:35] Speaker 03: And that was time barred. [00:20:37] Speaker 03: Now with respect to date of accrual, [00:20:40] Speaker 03: There was a little bit of debate about that. [00:20:43] Speaker 04: Let's take the first patent off the table, because I think your friend agreed that we could use either the 2006 date or the 2008 date. [00:20:50] Speaker 04: What about the second patent? [00:20:52] Speaker 03: So Your Honor, I'll address the merits of that. [00:20:56] Speaker 03: But first, that argument was never made below. [00:20:58] Speaker 03: It was waived. [00:20:58] Speaker 03: This is a new argument. [00:21:00] Speaker 03: It's referenced, I think, in one sentence of a hearing. [00:21:03] Speaker 03: It's not in any of the pleadings below, not in any of the motion papers. [00:21:07] Speaker 03: This Court's decisions in Golden Bridge [00:21:10] Speaker 03: And SAGE products make very clear you can't raise the new argument on appeal. [00:21:14] Speaker 01: How many sentences you say they needed? [00:21:17] Speaker 01: This is what was said. [00:21:18] Speaker 01: The right to raise this argument? [00:21:20] Speaker 01: You say one sentence is not enough? [00:21:22] Speaker 01: Not in a hearing. [00:21:24] Speaker 03: I apologize, Your Honor. [00:21:25] Speaker 03: This is all that was ever said with respect to this issue. [00:21:28] Speaker 03: At the summary judgment hearing, not in any brief, Mr. Hosey said, it's a separate patent with separate rights, Your Honor. [00:21:35] Speaker 03: It has value. [00:21:36] Speaker 03: It's a method patent. [00:21:37] Speaker 03: So it covers the use of the drug. [00:21:39] Speaker 03: The first patent is the compound of matter. [00:21:41] Speaker 03: The second covers the actual use of it. [00:21:43] Speaker 03: That's the extent of any separate argument with respect to the 648 patent. [00:21:48] Speaker 03: Repeatedly, the judge asked Mr. Hosey, when did your cause of action accrue? [00:21:55] Speaker 03: And he was not focusing just on the 354 patent at that point in time. [00:22:00] Speaker 03: He was focusing on the cause of action generally as it pertained to both patents. [00:22:04] Speaker 03: And repeatedly, with respect [00:22:06] Speaker 03: to the constructive fraud claim in 2013 and 2014, Dr. Mockus' counsel said it accrued when they amended that first claim and added the composition to that claim. [00:22:19] Speaker 03: And that's at A1, A1601, A1602, and A60. [00:22:26] Speaker 03: So that was an admission over and over again in court. [00:22:29] Speaker 03: It was not particular to the 354. [00:22:31] Speaker 03: And it makes sense, so let me explain why. [00:22:34] Speaker 03: The 354 patent is the composition. [00:22:37] Speaker 03: It has the molecule, the compound, the modified Babsgargan analog. [00:22:42] Speaker 03: The 648 patent is a method of treatment patent. [00:22:47] Speaker 03: It deals with using that analog to treat various forms of cancer. [00:22:51] Speaker 03: Now, it's undisputed that any work that Dr. Maka did was purely on identifying the compound. [00:22:58] Speaker 03: No work with any methods of treating anyone, either an animal or a person, anyone, with that compound. [00:23:05] Speaker 03: So it really isn't a distinct issue. [00:23:07] Speaker 03: The wrong for her, and in Maryland, a cause of action accrues at the date and time of the wrong. [00:23:14] Speaker 03: The wrong for her was that initial amendment that turned a genus claim, and the genus covered a range of peptides attached to this Stapsagargum analog, that turned it into a subgenus claim. [00:23:28] Speaker 01: that it was not run to take her subsequent scientific work. [00:23:35] Speaker 03: So on the merits, Your Honor, and the merits were never reached, but they were fully developed in terms of expert discovery. [00:23:42] Speaker 03: The merits showed that the genus described in the patent and patent specification was to one of ordinary skill in the art, maybe several hundred. [00:23:53] Speaker 01: This is the genus, it turns out from the record to be the compound of choice. [00:23:58] Speaker 03: Well, it actually is a subgenus in the claim. [00:24:01] Speaker 03: There are about five peptides, five compounds covered by that claim. [00:24:06] Speaker 03: And the patent teaches you use these two amino acids in combination. [00:24:11] Speaker 03: It's only a combination of two amino acids, five. [00:24:14] Speaker 01: You're avoiding the issue. [00:24:16] Speaker 01: The issue isn't going to go away. [00:24:19] Speaker 01: This was a specific compound. [00:24:21] Speaker 01: It wasn't a genus. [00:24:22] Speaker 01: It wasn't a subgenus. [00:24:24] Speaker 01: Turns out to be the one in clinical trials, according to the record. [00:24:28] Speaker 01: turns out to be a compound of choice. [00:24:32] Speaker 01: There are difficult questions here, which I appreciate haven't been reached. [00:24:38] Speaker 01: But I would think that Hopkins would be quite concerned about making sure that they've got it right. [00:24:44] Speaker 03: Well, Your Honor, I agree that these questions are far more difficult than the questions that led to the resolution of this case. [00:24:51] Speaker 03: But this court's case law makes very clear [00:24:54] Speaker 03: that during prosecution a claim can be amended to be directed to a smaller genus or even a species if the genus is sufficiently defined in the specification, which here it was. [00:25:06] Speaker 03: Here it was very clear the patents teach these are the amino acids that should be used for this combination. [00:25:14] Speaker 03: They teach it very clearly and [00:25:17] Speaker 03: Dr. Maka, who was a second year graduate student, was told which peptides to use, was told to make the specific one, and then later claimed inventorship. [00:25:25] Speaker 03: And she lay on her rights for six years before she did so. [00:25:28] Speaker 03: Now, there's undisputed evidence that in 2008, Dr. Maka knew she had a claim. [00:25:34] Speaker 03: She wrote to Johns Hopkins and said, I think they may have an alleged claim, the claim she now says she has. [00:25:40] Speaker 03: She says, I believe that I contributed to this pending patent. [00:25:44] Speaker 03: Uh, Johns Hopkins wrote back and said, it's not our patent anymore. [00:25:47] Speaker 03: It's transparent. [00:25:49] Speaker 03: Perhaps you should consult counsel. [00:25:51] Speaker 03: She wrote to her advisor. [00:25:53] Speaker 03: She said, Johns Hopkins says, maybe I should consult counsel. [00:25:56] Speaker 03: Maybe I should do that. [00:25:57] Speaker 03: I agree. [00:25:58] Speaker 03: She did. [00:25:59] Speaker 03: She waited. [00:26:00] Speaker 03: That's exactly why Maryland's three-year statute of limitations is in effect and bars the claim. [00:26:06] Speaker 03: Now, I have two minutes or so left. [00:26:09] Speaker 03: If there's anything that I can discuss before I sit down, I'd be happy to do so. [00:26:16] Speaker 02: Thank you. [00:26:19] Speaker 02: If I may, let me start with the waiver by not raising it below. [00:26:24] Speaker 02: That is inaccurate. [00:26:26] Speaker 02: I may cite the court to page 21 of our reply brief and footnote 14, and specifically A, appendix 1109. [00:26:35] Speaker 02: we argued the second patent specifically and explicitly in the summary judgment briefing below. [00:26:42] Speaker 02: Again, the evidence is summarized in footnote 14, page 21 of our reply brief. [00:26:47] Speaker 02: The appendix site is A1109. [00:26:51] Speaker 02: So it wasn't just my saying an argument. [00:26:53] Speaker 02: Look, it's a second patent. [00:26:54] Speaker 02: It's a separate right, which is clearly true. [00:26:56] Speaker 02: It was in the briefing very specifically. [00:26:59] Speaker 02: On acquiescence, by the time [00:27:03] Speaker 02: The party sent that letter to the court below. [00:27:05] Speaker 02: We had tried to say, respectfully, Judge, the court has no jurisdiction. [00:27:12] Speaker 02: And we, to put it kindly, were getting no traction with that. [00:27:15] Speaker 02: We tried twice. [00:27:16] Speaker 02: We failed twice. [00:27:17] Speaker 02: Giving graciously into what seemed to be inevitable is hardly acquiescence. [00:27:21] Speaker 02: And as you pointed out, it's all beside the point, because we cannot create jurisdiction any more than the court can confer jurisdiction on itself. [00:27:30] Speaker 02: Third, it's really important to separate the 256 cross actions and the subsequent state court claims that were removed. [00:27:39] Speaker 02: We said, Judge Garbus, please do enter the judgment in the crossing 256 claims. [00:27:44] Speaker 02: We recognize that that's over. [00:27:47] Speaker 02: We didn't say, gee, we don't like the summary judgment. [00:27:49] Speaker 02: Don't rule. [00:27:50] Speaker 02: We say rule. [00:27:52] Speaker 02: Please, Your Honor, enter the ruling. [00:27:53] Speaker 02: We agree you should enter that. [00:27:55] Speaker 02: And that mooted the case before our state claims went forward and long before they filed their summary judgment. [00:28:01] Speaker 02: There was no independent federal jurisdiction for those state claims. [00:28:06] Speaker 02: Finally, on the merits, I would love to try this case on the merits, but we have not had the opportunity. [00:28:12] Speaker 04: Thank you.