[00:00:00] Speaker 01:
1373 Honeywell International versus Nokia.

[00:00:09] Speaker 01:
Boy, this case has obviously been around for a very long time, since it's 12, 13, 2004.

[00:00:32] Speaker 01:
did council coordinate their ties this morning apparently in suits as well all right so there's split time here is that for purposes of arguing different issues are you both going to argue the same thing

[00:00:54] Speaker 05:
We intend to, our intention was that I was going to start and get through as much as I could in my time, then Mr. Koniski was going to pick up where I left off.

[00:01:03] Speaker 05:
So we didn't intend to argue the same issues.

[00:01:07] Speaker 01:
Okay.

[00:01:15] Speaker 05:
May it please the court, Matthew Siegel for Appellant Fujifilm.

[00:01:21] Speaker 05:
This is a case that involves a patent that was filed in bad faith, a lawsuit that was initiated in bad faith, a lawsuit that was litigated in bad faith.

[00:01:30] Speaker 01:
I know, but you've got findings by the district court which we're supposed to give deference to.

[00:01:37] Speaker 01:
So how do you transcend or overcome that?

[00:01:40] Speaker 05:
Well, Your Honor, if you look at the case law that supports the reason why we have deference, if you look at Highmark,

[00:01:47] Speaker 05:
uh... if you look at the fc johnson case that we discussed in our reply brief at about page thirty six thirty seven the deference is based on the fact that the district court has lived with the case is more familiar with the case uh... and has insights that don't come through in the paper record here we have a very unique situation the district court judge judge stark uh... he picked up the case

[00:02:16] Speaker 05:
only after the time for the fee motions.

[00:02:19] Speaker 05:
He didn't live with the case itself for one minute.

[00:02:22] Speaker 01:
Judge Farnan, Judge Stein, Judge Jordan... Is there any case that we have ever had that parses the result or the standard of review in the way you're suggesting that we would parse it?

[00:02:35] Speaker 01:
well you are a new judge coming in there plenty of cases that for a variety of reasons switched judges midstream or at some point in the case are you suggesting that that factor would result in a different standard of review for us to apply uh... in a sense yes i'm saying that when we have a situation where the district court judge had no action in the case he's going to be looking at exactly the same paper record

[00:03:01] Speaker 05:
as you are.

[00:03:02] Speaker 05:
In fact, this is a situation where two of the judges on this panel most likely spent more time looking at the merits of the summary judgment decision than he may have.

[00:03:15] Speaker 05:
It appears that he looked at the decision from Judge Farnan below, but didn't really dig into the record, whereas this court has a practice.

[00:03:24] Speaker 05:
Well, what judgment did he dig into the record?

[00:03:27] Speaker 05:
Well, I think he made a number of errors

[00:03:31] Speaker 05:
which to me tell me he didn't really look much past the decision.

[00:03:38] Speaker 05:
He says

[00:03:41] Speaker 01:
how do you know how to call it here you have a very thin ice here i think from my perspective i mean it's nothing to say you take issue with them it certainly another one thing to say that the law changed in the interim and this judge didn't have the benefit of the octane decision and so he didn't apply the right factors or or look at the now make the analysis in the right way but to suggest that somehow we would discount his fact-finding which in my view

[00:04:07] Speaker 01:
were absolutely positively fine because he was a new judge and didn't do his job right.

[00:04:13] Speaker 01:
It's a little... it's asking a lot, I think.

[00:04:17] Speaker 05:
Well, you are right.

[00:04:17] Speaker 05:
There is a change in the standard.

[00:04:20] Speaker 05:
We're no longer with clear and convincing evidence.

[00:04:22] Speaker 05:
We no longer have the Bridges standard.

[00:04:25] Speaker 05:
But if you look at what he found, he said there's no evidence that Honeywell failed to consider validity.

[00:04:33] Speaker 05:
That comes out of the mouths of Honeywell's counsel.

[00:04:39] Speaker 05:
They say, and I'm looking at page 833 in the appendix, it was during the oral argument he was questioned by Judge Stark, and he says, well, we looked at the patent and the prior art, there was nothing about, there was no production of a prior art source, so presumably he looked at the patent and the file wrapper,

[00:05:01] Speaker 05:
Then he says, we did not see an on sale bar issue in the Ames proposal documents.

[00:05:08] Speaker 05:
But then a few moments later, he takes it back.

[00:05:12] Speaker 05:
He says, now I'll tell you, I did not see these documents before the case was filed.

[00:05:17] Speaker 05:
I don't believe we looked at them.

[00:05:19] Speaker 05:
It's a clear admission that he didn't consider what should have been screaming at him.

[00:05:25] Speaker 05:
It should have been screaming at him that there's this on sale bar issue.

[00:05:28] Speaker 05:
This was technology that was developed to be sold to Honeywell, excuse me, to be sold to Boeing.

[00:05:36] Speaker 05:
They met with the inventors.

[00:05:37] Speaker 05:
They hired the inventors as consultants to be paid witnesses for the purpose of the trial.

[00:05:43] Speaker 05:
The first question out of their mouths should have been, was this offered for sale to Boeing?

[00:05:48] Speaker 05:
And then we know from Mr. Luther, the 30 Big Six witness on document collection, we know from Mr. Luther that they had collected

[00:05:59] Speaker 05:
volume three of the Aims proposal, volume three has a table of contents which points to volume four, which is titled Price Offering and Contractual Terms and Conditions.

[00:06:13] Speaker 05:
So it seems very clear to me that in fact they hadn't considered the validity issue.

[00:06:24] Speaker 05:
So I think that's one error he made.

[00:06:26] Speaker 05:
He also said Honeywell had a tolerable basis for their position on the summary judgment motion.

[00:06:32] Speaker 05:
The fact that summary judgment was granted, the fact that Judge Farnan said all the technical people, the inventors and their supervisors knew that what was offered for sale was the two panel display.

[00:06:47] Speaker 05:
And it's basic patent law 101 that all you need is an offer for sale, not a completed contract.

[00:06:55] Speaker 05:
The fact that there was summary judgment granted and affirmed by this court shows that no reasonable person could have held that position.

[00:07:04] Speaker 05:
So I'm not sure his basis for that.

[00:07:07] Speaker 01:
So are you suggesting that exceptional case is automatic when somebody loses on summary judgment and that's affirmed by our court?

[00:07:14] Speaker 05:
It's not automatic.

[00:07:15] Speaker 05:
It's a factor to consider.

[00:07:18] Speaker 05:
And due to not just the finding here, but the specific findings by Judge Farnan,

[00:07:24] Speaker 05:
that all the technical people at Honeywell knew about it, knew that they were offering the two panels, the two lens display.

[00:07:34] Speaker 05:
I think that's another error.

[00:07:36] Speaker 01:
He also said- You might want to ask, you're into your rebuttal, so you're free to use the remaining minute, but this is your rebuttal time now.

[00:07:42] Speaker 01:
It's up to you.

[00:07:44] Speaker 01:
You want to say your rebuttal for your colleague?

[00:07:47] Speaker 05:
I think at this point I'll defer to Mr. Kaminsky to go.

[00:07:58] Speaker 02:
Good morning, Your Honor.

[00:08:01] Speaker 02:
I'd like to go back to the question with respect to what can this court do in terms of how ways of discretion of the lower court.

[00:08:09] Speaker 02:
But I think there is a narrow circumstance that we're faced with here, which is when you look at the actual facts that were found by Judge Farnan and reviewed by this court, that's law of the case.

[00:08:20] Speaker 02:
And those facts are very strong.

[00:08:21] Speaker 02:
and what they are is that the district court found that Honeywell as a company knew.

[00:08:26] Speaker 02:
It had offered to claim the invention to Boeing and it knew that there was a patent process that resulted in the assertive claim.

[00:08:32] Speaker 02:
And I think given those facts, that sort of knowledge, I don't really think there's any other conclusion but this would be an exceptional case.

[00:08:41] Speaker 02:
Okay, one of the things that Judge Stark indicated was that... Under the current standard.

[00:08:45] Speaker 02:
Under the current standard, that's correct, the proponents of the evidence.

[00:08:48] Speaker 02:
Now, one of the arguments that Judge Stark had made was that Judge Farnan never said this was a frivolous case or that it was outrageous.

[00:08:55] Speaker 02:
But he wasn't asked to find that.

[00:08:57] Speaker 02:
That wasn't one of the issues that he was reviewing.

[00:08:59] Speaker 02:
He was only reviewing the summary judgment motion.

[00:09:02] Speaker 02:
But I believe that his language was such that it would imply that because there are only two arguments that were... Is that still the standard under Octane?

[00:09:10] Speaker 02:
No, Your Honor.

[00:09:11] Speaker 02:
Under Octane, the standard is proponents of the evidence.

[00:09:14] Speaker 02:
And you don't need sanctions.

[00:09:16] Speaker 02:
in order to find an exceptional case.

[00:09:18] Speaker 01:
What are you seeking here?

[00:09:20] Speaker 02:
Your Honor, we're seeking a finding that the case was an exceptional case.

[00:09:26] Speaker 01:
And then it goes back to the court for discretion on whether or not to award fees or the amount of the court.

[00:09:32] Speaker 02:
Correct.

[00:09:32] Speaker 02:
That's correct, Your Honor.

[00:09:33] Speaker 02:
And if you look at the language that Judge Starrk, Judge Parnan had used on the only two arguments that Honeywell had made,

[00:09:40] Speaker 00:
Judge Farnham had a substantial dispute on whether at the time the offer was made it was ready for patenting.

[00:09:48] Speaker 00:
There were all of the complexities of the law of the on sale bar and that too the fact that he decided in favor of one side or the other after hearing the issues doesn't mean that there wasn't an argument.

[00:10:03] Speaker 02:
Actually, Your Honor, I don't think he had that sort of a problem with the law.

[00:10:07] Speaker 02:
What he said was it was untenable that Honeywell took the position they hadn't offered the two lens array that claimed invention.

[00:10:13] Speaker 02:
That was what he decided after he heard the evidence.

[00:10:16] Speaker 02:
And then the second point that they had made was that it was never offered.

[00:10:20] Speaker 00:
That was what he decided after he heard the evidence.

[00:10:24] Speaker 00:
Not that it was before the argument was raised so clear as that there was no basis for presenting the argument.

[00:10:35] Speaker 02:
Your Honor, I think of the second argument where he looked at volume 4 when it was finally produced and he basically concluded the plain language of that document.

[00:10:44] Speaker 02:
The title of the document was in his contract, Terms and Conditions.

[00:10:48] Speaker 02:
He then listed no less than 10 terms from that document which showed that it was an offer.

[00:10:52] Speaker 02:
And then he says, even Honeywell's own 30B6 witness admitted that it was an offer to Boeing that Boeing could have accepted.

[00:11:01] Speaker 02:
So anyway, on that respect, I believe that it's implied.

[00:11:04] Speaker 00:
This is where the on-sale precedent arises.

[00:11:08] Speaker 00:
There are offers that are made and then you look at the state of the technology or not and have to resolve whether it's ready for patenting.

[00:11:17] Speaker 00:
This is not a question to be decided by the engineers.

[00:11:21] Speaker 00:
This is a difficult legal question.

[00:11:23] Speaker 00:
It was argued in front of Judge Farnham.

[00:11:26] Speaker 00:
who reached a conclusion, along comes Judge Clark, and he credits the weight that Judge Farnham gave to that argument with respect to now how clear it was, whether it was or wasn't exceptional from the fee-shifting viewpoint.

[00:11:45] Speaker 00:
So it seemed to me that what we need to look at is exactly that which was raised by the chief, that was there a change in the standard

[00:11:55] Speaker 00:
which would change the result.

[00:11:57] Speaker 02:
That's correct, Your Honor, and there was a change in the standard that wasn't considered by Judge Stark, in which case I guess this case would be remanded to Judge Stark to consider those issues.

[00:12:08] Speaker 01:
Well, in the short time that's remaining, you want to give us a few points to support that argument?

[00:12:12] Speaker 01:
Yes, Your Honor, I'd like to give you a couple.

[00:12:13] Speaker 02:
For one, you know, one of the things that Judge Stark said is that there's no colorable basis to believe the patent would not have been held invalid.

[00:12:21] Speaker 02:
The only

[00:12:21] Speaker 02:
issue that was considered was a 1989 invention disclosure statement.

[00:12:26] Speaker 01:
Well, that was clear error because that 1989 IDS was issued before the... Wait, I thought you were going to tell us examples of why the wrong standard was applied, the pre-octane standard and not the octane standard.

[00:12:38] Speaker 02:
Because the cases hadn't issued, Your Honor.

[00:12:41] Speaker 02:
I guess I'm not understanding the question.

[00:12:43] Speaker 01:
Well, your time is running out, so we may have already booted this out.

[00:12:46] Speaker 01:
But what I was looking for were instances where it was clear or arguable that Judge Stark was applying the pre-optane standard.

[00:12:55] Speaker 02:
Yeah, he said he's under a clear and convincing standard in his decision.

[00:12:59] Speaker 02:
That's what he was applying.

[00:13:03] Speaker 01:
All right.

[00:13:04] Speaker 01:
Well, you're into your rebuttal too, so why don't we hear from the other side.

[00:13:10] Speaker 04:
Good morning.

[00:13:11] Speaker 04:
May it please the court, Martin Lewick for Honeywell.

[00:13:16] Speaker 04:
The reason we don't believe there needs to be any remand here is that it is true that Judge Stark applied the Brooks furniture standard that was applicable at the time.

[00:13:29] Speaker 04:
But if you look at Judge Stark's opinion, there's nothing to go back to be evaluated again.

[00:13:35] Speaker 04:
He essentially... I'm very disturbed by

[00:13:37] Speaker 03:
the production and non-production of volume four.

[00:13:43] Speaker 03:
In Samson's joint appendix, your client represented that, quote, no record or evidence that volume four exists or was ever sent to Boeing.

[00:13:57] Speaker 03:
But in fact,

[00:14:00] Speaker 03:
Eventually, Boeing produced volume four.

[00:14:04] Speaker 03:
Honeywell was the one who prepared that volume, was it not?

[00:14:11] Speaker 03:
Yes, it was, Your Honor.

[00:14:12] Speaker 03:
How the heck did Boeing get it if it was never sent to them by Honeywell?

[00:14:16] Speaker 04:
Well, it turned out that it was sent to them.

[00:14:18] Speaker 04:
The basis of our response was we never found a copy of volume four in Honeywell's records, and that's true to this day.

[00:14:28] Speaker 04:
And I can just go through the sequence of that production.

[00:14:33] Speaker 04:
We turned over everything we had on Ames.

[00:14:36] Speaker 03:
And in April of... That extensive search that Ms.

[00:14:42] Speaker 03:
Oberts refers to in her email... Yes, sir.

[00:14:48] Speaker 03:
You didn't go back and look again, did you, outside of the documents that were in possession of Ms.

[00:14:55] Speaker 03:
Olberts?

[00:14:55] Speaker 04:
We did, Your Honor, and that's in the record.

[00:15:00] Speaker 04:
In the declaration of Mr. Woods at appendix 5166 and 677, and then also Mr. Woods was at the two and a half hour hearing that we had with Judge Stark, and Judge Stark asked him directly, and the court can see that

[00:15:15] Speaker 03:
in the transcript record at A41 and he... Did Boeing deny to Honeywell that it had volume four?

[00:15:26] Speaker 04:
It did not, but when it was subpoenaed and first produced the documents, Boeing didn't find volume four either.

[00:15:34] Speaker 04:
And they didn't find it until there was then a follow-up request to go back and look for it.

[00:15:39] Speaker 04:
And they had looked, they had a subpoena in April of 2007

[00:15:43] Speaker 04:
And it wasn't until November of 2007 that Boeing actually found Volume 4 and produced it.

[00:15:50] Speaker 04:
But Honeywell did go back and look.

[00:15:53] Speaker 04:
And that is in the record.

[00:15:55] Speaker 04:
And in fact, Judge Stark considered that.

[00:16:00] Speaker 04:
And he found in footnote 10 on appendix A11 that Honeywell looked repeatedly for Volume 4.

[00:16:07] Speaker 04:
And it wasn't just us lawyers looking for it.

[00:16:11] Speaker 04:
We asked Honeywell to go back

[00:16:13] Speaker 04:
and search for it as well.

[00:16:14] Speaker 03:
A second separate request.

[00:16:19] Speaker 04:
That's correct, Your Honor.

[00:16:20] Speaker 04:
And I would direct the Court to Ms.

[00:16:23] Speaker 04:
Obert's letter of September 14, 2007 at A8421 that said, in response to each request so far, we have diligently searched for the document and we have been unable to locate it.

[00:16:37] Speaker 04:
And that remains true today.

[00:16:41] Speaker 04:
And so the point that I would make on remand is simply that Judge Stark looked at all of this evidence.

[00:16:48] Speaker 04:
He had 8,000 agents in front of him when this motion was made.

[00:16:54] Speaker 04:
We had a two and a half hour hearing.

[00:16:57] Speaker 01:
One of the factors he applied was the fact that there were numerous licenses that had been entered into by other accused infringers.

[00:17:05] Speaker 01:
Is that standard, has that been applied by us in any cases that you know?

[00:17:10] Speaker 01:
Because it seems to me

[00:17:12] Speaker 01:
There could be, firstly, we don't, there was no examination of the amount paid for the licenses.

[00:17:19] Speaker 01:
And also, I mean, we know that sometimes people settle case for license just because it's less than the attorney's fees that it's going to cost to litigate.

[00:17:27] Speaker 01:
So I guess I was, do you know of any cases where we have said that just the entry of licenses by other accused infringers is a factor that goes to whether or not the case is exceptional?

[00:17:40] Speaker 04:
I do not have any case to cite to the court.

[00:17:43] Speaker 01:
Do you understand my concern about the application of that standard?

[00:17:47] Speaker 01:
It could be misleading unless one does an investigation of the licenses themselves?

[00:17:53] Speaker 04:
I do understand the court's concern.

[00:17:55] Speaker 04:
It was very deeply discussed.

[00:18:00] Speaker 04:
I would just point out at page 12 of Judge Stark's order, and I think if you look at the findings that he put forth, that is not one of the

[00:18:10] Speaker 04:
points upon which his decision necessarily turned.

[00:18:13] Speaker 04:
But within that license milieu, he broke out the licenses that were entered into before this argument was made and after.

[00:18:25] Speaker 04:
And it was Obtrecht who first raised this argument, and it was Obtrecht who settled after raising it.

[00:18:31] Speaker 04:
And I would also point out that the Volume IV was actually produced in the litigation in 2007.

[00:18:39] Speaker 04:
in November.

[00:18:41] Speaker 04:
And it wasn't until October of 2009 that a summary judgment motion was brought.

[00:18:47] Speaker 04:
There was never a motion to compel, never any issue raised with respect to sanctions, never a letter from any of the defendants suggesting that we should drop the case.

[00:19:00] Speaker 04:
And the case proceeded to summary judgment.

[00:19:02] Speaker 04:
We disagreed with Judge Farman's ruling, but it was a very hard fought, close case.

[00:19:08] Speaker 04:
And in looking at what Judge Stark did afterwards, he not only considered the paper record.

[00:19:15] Speaker 03:
How do you fairly characterize it as a closed case?

[00:19:20] Speaker 04:
The way I characterize it that way, Your Honor, is that this was a very complex contract.

[00:19:25] Speaker 04:
Honeywell agreed that they would build the cockpit.

[00:19:28] Speaker 04:
They agreed to do it according to a price.

[00:19:30] Speaker 04:
That price had many escalators and different aspects to it.

[00:19:35] Speaker 04:
But at the time, the technology that was going to go into the cockpit

[00:19:38] Speaker 04:
into the cockpit had not been developed and that was something to do in the future.

[00:19:43] Speaker 04:
There was no hardware to be accepted at the time of this Volume 4 and the court can see that in paragraph 28.

[00:19:50] Speaker 01:
It's kind of hard to swallow that given that the title of Volume 4 is Price Offering and Contractual Terms and Conditions, right?

[00:20:01] Speaker 04:
Yes, that's true.

[00:20:02] Speaker 04:
It was, so it was on Honeywell.

[00:20:04] Speaker 04:
Was it the yes, that's true, it's kind of hard to swallow it?

[00:20:07] Speaker 04:
Well, no, I would draw a distinction there, Your Honor.

[00:20:10] Speaker 04:
And the distinction I would draw is really in this court's decision in 3M versus Chem Q. All we had ever done up to that point was give them samples.

[00:20:19] Speaker 04:
And evaluative activity of that type doesn't make an offer.

[00:20:24] Speaker 04:
We didn't know what that panel would look like, and there was nothing for Boeing to accept.

[00:20:30] Speaker 01:
until all of the design reviews have been... So you're saying the title was erroneous, that it was misleading?

[00:20:36] Speaker 04:
No, the title was correct, but the hardware, the specific things to sell them, had not been developed.

[00:20:43] Speaker 04:
So for example, a two lens array unit, which we're fighting about here, we didn't know that that would work in the cockpit.

[00:20:51] Speaker 04:
A one lens array, as it turned out, there were no lens arrays in the flat panel that went into the Boeing cockpit.

[00:20:57] Speaker 04:
So the point is the contract, yes,

[00:21:00] Speaker 04:
Honeywell won the contract, won the right to provide the cockpit, but then had to develop the technology to put in that cockpit.

[00:21:09] Speaker 04:
And that's the aioli affidavit of paragraphs 28 and paragraph 20.

[00:21:14] Speaker 04:
So, you know, the principal dispute that we had

[00:21:18] Speaker 04:
was over these drawings, yes.

[00:21:20] Speaker 04:
Did our inventors experiment to try to figure out how they could make something that both of the pilots could look at and see with equal luminance across the screen?

[00:21:30] Speaker 04:
They certainly did.

[00:21:32] Speaker 04:
But until something had been developed and gone through the entire design process.

[00:21:37] Speaker 03:
I thought you argued that there was a one lens display.

[00:21:42] Speaker 04:
We did argue that.

[00:21:43] Speaker 04:
That's what's in the Ames proposal.

[00:21:46] Speaker 04:
So the actual Ames proposal itself only had one lens in it.

[00:21:50] Speaker 04:
And these two lens arrays, it's another error I thought the district court made.

[00:21:55] Speaker 04:
The district court conflated an earlier program, the flat panel display program, with the Ames program.

[00:22:03] Speaker 04:
Honeywell engineers demonstrated to Boeing when they were trying to win this contract, hey, we've done a lot of work on flat panels.

[00:22:10] Speaker 04:
We think we can build it for you.

[00:22:13] Speaker 04:
Here's some of the stuff we did.

[00:22:15] Speaker 04:
But in our view, that was never offered to Boeing.

[00:22:20] Speaker 04:
And we could not have stood behind that as a piece of technology at that time, that Boeing could actually use in an aircraft cockpit.

[00:22:28] Speaker 04:
And it didn't.

[00:22:31] Speaker 04:
So that was the underlying dispute.

[00:22:33] Speaker 04:
Obviously, I'm not taking issue with that.

[00:22:35] Speaker 04:
But if we look at this court's decisions in Speedplay and Penwald, two things are happening here.

[00:22:43] Speaker 04:
One, they're trying to...

[00:22:45] Speaker 04:
suggest that just because of the summary judgment that should give rise to a finding of exceptional case and that's simply not the law.

[00:22:55] Speaker 01:
It does seem to me that the standards or at least some of the suggestions made in Judge Stark's opinion suggest that he appropriately at the time certainly was using the Brooks furniture the previous standard as he should have but something changed after that and we've got Octet and so I guess

[00:23:13] Speaker 01:
How are you so certain that the standard, even though a different standard was applied, that how are we supposed to be so certain that the result wouldn't have been different under the application of a looser, different standard of opting?

[00:23:27] Speaker 04:
Sure.

[00:23:28] Speaker 04:
I understand, Your Honor.

[00:23:29] Speaker 04:
And so if we look at what Judge Stark actually found, he found no evidence that Honeywell failed to consider validity.

[00:23:38] Speaker 04:
He found that there was

[00:23:41] Speaker 04:
that what he characterized as the odd conspiracy that was proposed was far from proven.

[00:23:48] Speaker 04:
He found that Honeywell had a colorable basis to proceed, both in the substance of the on-sale bar issue and also after the Ames proposal was... Is a colorable basis the standard in Octane?

[00:24:03] Speaker 04:
Well, as I read Judge Stark's opinion and as I read Octane, I would say what survives is the objective

[00:24:11] Speaker 04:
prong of the test.

[00:24:13] Speaker 04:
I think that his statement of colorable basis is a statement of objective evaluation of the merits.

[00:24:20] Speaker 04:
He went deeper.

[00:24:21] Speaker 04:
He looked in his footnote 11 on page 12.

[00:24:26] Speaker 04:
He talked about reading Judge Farnes.

[00:24:29] Speaker 04:
Actually, it's footnote 8 on appendix 11.

[00:24:38] Speaker 04:
My apologies.

[00:24:39] Speaker 04:
He talks about his review of Judge Farnan's analysis of the Ames proposal.

[00:24:47] Speaker 04:
And I think he fully understood what those arguments were.

[00:24:50] Speaker 04:
And he was talking about the objective basis of those arguments.

[00:24:55] Speaker 04:
And so I think if you look at this court's decision in consolidated aluminum, where we talk about when to remand and when not, this is a case, even though consolidated aluminum doesn't reach this issue,

[00:25:09] Speaker 04:
precisely, the principal holds.

[00:25:12] Speaker 04:
There's no need to remand because the result is going to be the same.

[00:25:16] Speaker 01:
What do you say to your friend's argument, the first argument he made, which I shut down, but nonetheless, what do you make of the argument that this was not the same district judge who had the experience of dealing with all the give and take and what went down in this case?

[00:25:32] Speaker 01:
So the normal level of deference that is applied ought not to be applied here.

[00:25:36] Speaker 04:
well the you know uh... highmark says the puts the abuse of discretion standard front and center doesn't draw a distinction that the court sitting in the trial court be the same court that has handled each and every motion and in fact it's uh... it's a regular occurrence that courts uh... judges change we have three different judges in this case so the abuse of discretion standard is in my view the standard that has to be applied you look to the reasoning of judge stark i don't see that to be

[00:26:06] Speaker 04:
anything out of the ordinary here.

[00:26:08] Speaker 04:
He obviously did a very thorough review of the evidence and carefully considered the arguments and that's what district courts are to do.

[00:26:22] Speaker 04:
Unless there's anything further, I'll sit down.

[00:26:28] Speaker 01:
Okay, so you've got one minute left and you've got two minutes left.

[00:26:31] Speaker 01:
Do you want to continue to divide that up?

[00:26:35] Speaker 05:
I'll try to speak quickly.

[00:26:37] Speaker 05:
I would take extreme exception to what they say about having gone back to the Honeywell documents and looked at the Honeywell documents.

[00:26:44] Speaker 05:
If you read the documents we've identified in our brief, they say we went back and looked at what we collected, we went to ex-employees,

[00:26:55] Speaker 05:
uh... and then the the over twitter i think he refers to she says we've done this at nauseam and we're not going to go back and look at it uh... i think that uh... when judge star talks about objective baselessness that's a rule eleven kind of an issue that octane said we're not going to look for that kind of thing anymore uh... and the ames proposal does identify a two lens system that

[00:27:22] Speaker 05:
a 12927.

[00:27:24] Speaker 05:
It says we're going to deliver a DU or a D9.

[00:27:28] Speaker 05:
D9 is what Judge Farnan expressly says and the record clearly shows is a two lens system.

[00:27:34] Speaker 05:
So I take exceptions that the Ames proposal did disclose a two lens system and I think I'm out of time.

[00:27:56] Speaker 02:
Yes, Your Honor, the argument was made that the technology didn't exist prior to volume four.

[00:28:02] Speaker 02:
As my colleague indicated, it wasn't volume three.

[00:28:05] Speaker 02:
It's also, again, stated that it's in volume three at A269 and A3700.

[00:28:11] Speaker 02:
In addition, Honeywell's own experts stated that the two-lens array was reduced to practice, and this was prior to volume four, and that's at A153.

[00:28:23] Speaker 02:
39 or 389.

[00:28:25] Speaker 02:
And this was the same argument that Judge Farnan had said was untenable to suggest that it wasn't offered.

[00:28:32] Speaker 02:
The other issue with respect to this volume four being searched for, and I know my colleague addressed it, but I'll give you the, we were the one, Samsung wrote the letter to Ms.

[00:28:44] Speaker 02:
Obert saying, you said you were going to conduct another investigation in addition to the re-review of the documents that had already been produced.

[00:28:52] Speaker 02:
We specifically asked her in the September 12th letter, Elizabeth Braun said, you know, did you conduct another investigation or was it merely a re-review?

[00:29:04] Speaker 02:
The response back in September 14th by Ms.

[00:29:07] Speaker 02:
Olberts was basically, you know, you guys, this is making me nauseous.

[00:29:12] Speaker 02:
It's a waste of time.

[00:29:13] Speaker 02:
You ask her from Boeing and they don't have it either.

[00:29:15] Speaker 02:
Well, they did have it and they never went back.

[00:29:19] Speaker 02:
There's no evidence in the record they ever went back to search.

[00:29:23] Speaker 02:
The only evidence, or not evidence, but argument, was in Mr. Wood's declaration, paragraph 43.

[00:29:29] Speaker 02:
And what does he say?

[00:29:30] Speaker 02:
He doesn't say anything about another search.

[00:29:33] Speaker 02:
All he says is, see Stacey Obert's letter, which basically didn't respond to the question.

[00:29:40] Speaker 02:
With that, Your Honor, we'll rest in the breeze.

[00:29:41] Speaker 02:
Thank you very much.

[00:29:42] Speaker 01:
Thank you.

[00:29:42] Speaker 01:
Thank you.

[00:29:43] Speaker 01:
I think I'll comment on the case.