[00:00:00] Speaker 06:
Lumenview Technology versus FindTheBest.com.

[00:00:06] Speaker 06:
15-1275.

[00:00:08] Speaker 06:
We'll hear from Mr. Wassebauer.

[00:00:16] Speaker 05:
Good morning.

[00:00:17] Speaker 05:
David Wassebauer on behalf of Lumenview Technology.

[00:00:23] Speaker 05:
In this case,

[00:00:25] Speaker 04:
The district court made a factual finding reserved for the jury, which is the lynchpin of the underlying... Mr. Wasserbauer, at several points in your opening brief, and then again in your reply, you accused the district court of harboring a personal bias against your client.

[00:00:48] Speaker 04:
That's a very serious allegation.

[00:00:52] Speaker 04:
Where does the record contain any evidence supporting your allegation?

[00:00:56] Speaker 04:
And if you harbored a legitimate concern about the district court, why didn't you move under 28 USC 455 B1?

[00:01:06] Speaker 05:
I think that if that's the characterization or conclusion you've come to,

[00:01:12] Speaker 04:
I personally... Say that again, if it's the conclusion I come to.

[00:01:18] Speaker 04:
Do you want me to quote the pages where you say that?

[00:01:20] Speaker 04:
No, Your Honor, that's not necessary.

[00:01:23] Speaker 05:
In the first pre-trial conference, the court, certainly, after inducing myself, called me for the T-word.

[00:01:32] Speaker 05:
And then after that, you know, I represented, I'm a licensing court.

[00:01:36] Speaker 01:
I don't know what the T-word is.

[00:01:39] Speaker 05:
And where in the record is that, please?

[00:01:42] Speaker 04:
That's certainly not in the record, but that's... Well, my question to you again was, I'm quoting, where in the record?

[00:01:53] Speaker 05:
The record, Your Honor, I would be more correct to say that this is approaching a bias on the court's stance.

[00:02:12] Speaker 04:
OK.

[00:02:15] Speaker 04:
You also make a direct attack in your reply brief at page 23 against opposing counsel.

[00:02:27] Speaker 04:
You say that FTB is making a, quote, patently false statement that is unconscionable and unprofessional.

[00:02:42] Speaker 04:
Did you file a 60A complaint, or I'm sorry, a bar complaint, or seek sanctions under Rule 11 against opposing counsel if you say they're engaged in unethical conduct?

[00:02:55] Speaker 04:
I have not, Your Honor.

[00:02:57] Speaker 04:
Isn't that your obligation as a member of the bar, if you believe that?

[00:03:00] Speaker 05:
It will be.

[00:03:01] Speaker 05:
And Your Honor, I think that resolution of the factual issues in this case would be supportive of those types of moving motions.

[00:03:09] Speaker 04:
But you've made the accusation now.

[00:03:12] Speaker 05:
Well, I can show in the record that the statements of counsel are patently false and certainly misleading to the court.

[00:03:19] Speaker 05:
The buzzwords that they use on, for example, if we enter other local rule 6 from reinforcement conventions, and by law make our product element by element analysis available to find the best.

[00:03:36] Speaker 05:
So they know what the infringement claims are against them, continue on for more than a year to say that our claims are baseless, frivolous, and the court has basically said that by sustaining our picks and saying they're sufficient, that now we have merit to proceed.

[00:03:54] Speaker 05:
That's 45 days after initial pre-trial conference.

[00:03:59] Speaker 05:
that and they moved certainly with an affidavit from Kevin O'Connor.

[00:04:05] Speaker 05:
It says I contacted the defendant or the I made contact with the one of the inventors but he leaves out

[00:04:15] Speaker 05:
all the contact that he did.

[00:04:17] Speaker 05:
So on September 9, Mr. Kevin O'Connor sent a letter to the Catholic Foundation here of schools accusing or coloring a board member

[00:04:30] Speaker 05:
Eileen and the inventor as a troll and calling her morality into question.

[00:04:36] Speaker 05:
That is outside of litigation.

[00:04:38] Speaker 05:
That was not included in the conduct of the affidavit and so they're approaching the court with unclean hands.

[00:04:45] Speaker 05:
They knew about that.

[00:04:46] Speaker 05:
There was a Rico case where that was discussed.

[00:04:49] Speaker 05:
It was brought to the attention of the judge.

[00:04:51] Speaker 05:
They knew that certainly various statements that they made about

[00:04:58] Speaker 05:
my not providing them information about the pre-trial investigation that I performed.

[00:05:07] Speaker 05:
For example, which is a discovery.

[00:05:12] Speaker 06:
Let me focus on the legal issue here.

[00:05:15] Speaker 06:
Is it your view, and why do you state that, that Section 285 does not provide for enhancement?

[00:05:25] Speaker 05:
The Section 285 right now basically under octane will say, look at this case and see if it stands out from one to the other by the substantive strength of the claim.

[00:05:42] Speaker 05:
Or was it litigated in an unreasonable manner?

[00:05:45] Speaker 05:
All the cases in the district courts that I have pulled since the octane do not have any of the facts.

[00:05:50] Speaker 06:
But the district judge was pretty calm in her view as it was

[00:05:55] Speaker 06:
an unreasonable accusation and your purpose was not to exercise legitimate rights, but almost harassment.

[00:06:10] Speaker 06:
And so why shouldn't we accept that?

[00:06:12] Speaker 05:
You should accept that because there's no record of any finding of fact.

[00:06:15] Speaker 05:
It's just buzzwords and allegations that were put forth by the client.

[00:06:19] Speaker 05:
If she made a preliminary infringement convention to sustain those, then that should support at least going forward on my claim.

[00:06:27] Speaker 05:
So if you take her opinion at page 51 and you go through our motivation,

[00:06:35] Speaker 05:
was to basically, as a patent holder, we have the right to vigorously enforce and defend our lawsuit.

[00:06:43] Speaker 05:
Our motivation was the license.

[00:06:45] Speaker 05:
If you look at our complaint, it's consistent with that.

[00:06:47] Speaker 05:
Our complaint puts our claim card in paragraph 13.

[00:06:51] Speaker 05:
It invites a licensing opportunity.

[00:06:54] Speaker 01:
We cannot move... Yes, but her problem was that you didn't have any infringement case.

[00:07:01] Speaker 01:
And despite being asked by her to articulate your basis for infringement, in particular how the accused devices had a bilateral matchmaking process, which required multiple parties to input preference information, she said that it is almost beyond dispute, because you put forth nothing to the contrary, that FTBs assist me.

[00:07:24] Speaker 01:
This is all about dating websites.

[00:07:27] Speaker 05:
Your Honor, it's a decision making website and it would be allowable under 101 in view of your DER decision even today.

[00:07:38] Speaker 01:
Okay, well that's not before us.

[00:07:40] Speaker 01:
The question before us is whether or not she was correct in not only awarding attorney's fees against you, but doubling them because she believed it was necessary to deter

[00:07:54] Speaker 01:
the lawsuits like this one, which she concluded was, quote, frivolous, objectively unreasonable, and that no reasonable litigating could reasonably expect success on the merits.

[00:08:05] Speaker 01:
And she repeatedly says that you had multiple opportunities to proffer an infringement theory.

[00:08:11] Speaker 01:
There is a claim element present in all the claims, which you never demonstrated was present in the accused device, and which the record seems pretty clear was not present in the accused device.

[00:08:23] Speaker 01:
And so, I mean, I'm struggling with why that isn't something I need to affirm.

[00:08:31] Speaker 05:
All right, Your Honor.

[00:08:33] Speaker 05:
We did demonstrate it many times.

[00:08:35] Speaker 05:
I can count the number of times that I did it before her actually taking a claim in the preliminary infringement of contention hearing on the phone.

[00:08:45] Speaker 05:
She said, walk me through each and every element and tell me

[00:08:49] Speaker 05:
And we did that.

[00:08:50] Speaker 05:
We spent an hour on the phone.

[00:08:51] Speaker 01:
Is there a transcript somewhere?

[00:08:53] Speaker 05:
Well, after that, she sustained our preliminary infringement contention.

[00:08:56] Speaker 01:
She was completely lost and forgotten.

[00:08:58] Speaker 01:
You're telling me I'm supposed to believe that you proved something from a phone conversation.

[00:09:02] Speaker 01:
Is there a transcript of that phone conversation?

[00:09:05] Speaker 01:
Did you include it in the appendix?

[00:09:06] Speaker 05:
I ordered it, Your Honor, and there is no transcript of that conversation.

[00:09:10] Speaker 01:
OK.

[00:09:11] Speaker 05:
All right.

[00:09:11] Speaker 05:
And so it's for our law.

[00:09:13] Speaker 01:
So wait a minute.

[00:09:13] Speaker 01:
So she says you didn't ever.

[00:09:17] Speaker 01:
explain how the FTB product had this claim element ever, except on reconsideration motion, which she said was too little, too late.

[00:09:27] Speaker 01:
So you are claiming that, oh, yes, you did explain it.

[00:09:31] Speaker 01:
You did in a phone conversation, of which there's no transcript, and I'm just supposed to believe you.

[00:09:35] Speaker 01:
This is a fact finding by her, whether or not you ever established this.

[00:09:40] Speaker 05:
Correct, Your Honor.

[00:09:41] Speaker 05:
So establishing those things

[00:09:45] Speaker 05:
We established them at many points in the case, not only in the... Well, let me ask you this.

[00:09:52] Speaker 04:
No, no, no, no.

[00:09:53] Speaker 04:
You don't talk when the judge talks.

[00:09:55] Speaker 04:
That's the way it works.

[00:09:56] Speaker 04:
So let me ask you this.

[00:09:58] Speaker 04:
When the judge ruled and you say you knew that in fact you had established all those points in the telephone conversation and you say you had ordered a transcript

[00:10:12] Speaker 04:
Where in the record did you say, well, wait a minute, Judge, I'd like you to reconsider in light of this prior conversation, which you seem to have forgotten.

[00:10:22] Speaker 05:
Your Honor, we actually sent letters to the court.

[00:10:25] Speaker 05:
We asked them.

[00:10:26] Speaker 05:
We said that there's no record of your finding prior to and after those decisions.

[00:10:33] Speaker 05:
When she invited us, we reminded her again that she had not made an entrenchment finding.

[00:10:39] Speaker 05:
She reluctantly said... I don't think you're answering my question.

[00:10:43] Speaker 05:
Yes, Your Honor.

[00:10:44] Speaker 05:
We raised it in letters to the court.

[00:10:46] Speaker 04:
Where in the record is that, right?

[00:10:52] Speaker 04:
The judge, you seem to have forgotten our telephone conversation.

[00:10:58] Speaker 05:
It's in the December letter, December 22nd letter to the court.

[00:11:05] Speaker 04:
And where would that be?

[00:11:25] Speaker 04:
You might want to save that for your reply time.

[00:11:28] Speaker 04:
I'm not going to go up here.

[00:11:30] Speaker 01:
Doesn't Octane Fitness say the prongs to be considered in deciding exceptionality include motivation, deterrence, a few other things?

[00:11:40] Speaker 01:
This district court judge found that your motivation was to extract a nuisance value settlement from FTB on the theory that FTB would rather pay an unjustified license fee than bear the cost of the threatened expensive litigation.

[00:11:55] Speaker 01:
She quotes from a variety of your emails and discussions over settlement.

[00:12:04] Speaker 01:
She quotes a bunch of them.

[00:12:08] Speaker 01:
How can I unravel that fact-finding in light of all her quotations

[00:12:12] Speaker 01:
The fact finding is that you're looking for a nuisance settlement.

[00:12:16] Speaker 05:
We don't for a nuisance settlement.

[00:12:18] Speaker 05:
The way that the complaint is set up.

[00:12:20] Speaker 05:
The letter that she's referring to is our initial letter that accompanies the complaint.

[00:12:25] Speaker 05:
It's an invitation that's tailored specifically to the particular defendant.

[00:12:30] Speaker 05:
All those words are quoted from our standard letter.

[00:12:33] Speaker 05:
We craft that letter for a particular... This is not like we sent out thousands of letters, which is the abuse of conduct that is complained of in the industry.

[00:12:41] Speaker 01:
How many different lawsuits have you filed on this patent?

[00:12:44] Speaker 05:
I know this answer because I filed three on this case or on this patent and in my knowledge they were all specifically crafted.

[00:12:52] Speaker 01:
I thought it was 21.

[00:12:55] Speaker 05:
There are other cases that are included in Mr. Legg and they are affidavit but there's no evidence on those being.

[00:13:04] Speaker 01:
And they were all settled.

[00:13:05] Speaker 01:
All of them were settled, correct?

[00:13:07] Speaker 05:
I cannot

[00:13:09] Speaker 01:
And at what stage in the litigation were they all settled?

[00:13:13] Speaker 01:
Because in this case, you told them, if you settle before you file an answer, then we'll give you $80,000.

[00:13:18] Speaker 01:
I don't want to breach confidentiality.

[00:13:22] Speaker 01:
Am I coming close to it, or did I just do it?

[00:13:24] Speaker 05:
I don't know.

[00:13:27] Speaker 05:
Under this course, just definition of nuisance?

[00:13:31] Speaker 01:
And then after they did file an answer anyway, you said, OK, OK, one day only, special offer, $55,000.

[00:13:37] Speaker 05:
That's not fair.

[00:13:38] Speaker 01:
And then you said, if you don't settle, I'm going to make you retain everything.

[00:13:44] Speaker 01:
This is going to be expensive litigation.

[00:13:47] Speaker 01:
Make sure everybody in your company knows.

[00:13:49] Speaker 01:
This is going to be protracted discovery.

[00:13:51] Speaker 01:
There will be full scale litigation if you don't settle for this amount.

[00:13:56] Speaker 01:
And so the district court looked at that pattern of conduct in this case and concluded that especially since you, at least according to her fact finding, had never proffered an infringement theory.

[00:14:07] Speaker 01:
were simply seeking a nuisance value settlement and that's why she concluded the case was exceptional and a warrant of attorney.

[00:14:15] Speaker 05:
The letter that is referenced is our initial letter that gets delivered and served with the complaint.

[00:14:21] Speaker 05:
It does have a retention policy asking the person to preserve with discovery.

[00:14:26] Speaker 05:
It does have a characteristic type of, this is a licensing opportunity.

[00:14:32] Speaker 05:
The whole opportunity for this person is basically created as a business decision.

[00:14:39] Speaker 05:
We do not ask in our prayer for relief, for objective relief.

[00:14:42] Speaker 05:
We put only direct infringement cases.

[00:14:45] Speaker 05:
All those cases are direct infringement.

[00:14:47] Speaker 05:
We do our pretrial investigation on these cases.

[00:14:50] Speaker 05:
We target only the companies that are in need of a license and then meet that criteria.

[00:14:56] Speaker 05:
We do over and above what is required, Your Honor.

[00:15:01] Speaker 06:
Mr. Waspower, your time has just about expired, but we'll give you two minutes back for rebuttal.

[00:15:07] Speaker 06:
Thank you, Your Honor.

[00:15:19] Speaker 04:
Ms.

[00:15:19] Speaker 04:
Juarez, does the record contain anything indicating how the district court selected the particular multiplier as the enhancement?

[00:15:29] Speaker 02:
The district court selected the multiple- I can't forget that.

[00:15:35] Speaker 02:
The district court selected the two times enhancement of a low star amount based on two reasons.

[00:15:40] Speaker 02:
First, because the low star amount was extremely low, the district court had adopted an expedited schedule over looming subjections in order to resolve the validity dispute.

[00:15:49] Speaker 01:
But the fact that she moved fast and therefore obviated the need for additional litigation expenses doesn't suddenly create litigation expenses, right?

[00:16:00] Speaker 01:
I mean, reasonable attorney fees are reasonable attorney fees that it actually cost your client to defend.

[00:16:07] Speaker 02:
I actually don't agree with that.

[00:16:09] Speaker 02:
I don't think that under 285 reasonable attorneys fees means actual attorneys fees.

[00:16:13] Speaker 02:
I don't think there's a requirement in the statute that says reasonable attorneys fees constitute only what is actually extended or less.

[00:16:20] Speaker 01:
No, it's the low star calculation which is the

[00:16:24] Speaker 01:
very strong presumptive appropriate calculation.

[00:16:27] Speaker 01:
And the Lodestar calculation in this case led to, what number was it here, $143,000?

[00:16:31] Speaker 01:
Just under $149,000.

[00:16:34] Speaker 01:
Okay, so $149,000.

[00:16:37] Speaker 01:
So the Lodestar is the presumptively appropriate measure of reasonable attorneys.

[00:16:42] Speaker 01:
Would you agree with that statement?

[00:16:43] Speaker 02:
I would agree with that statement, yes.

[00:16:45] Speaker 01:
And so the Supreme Court in Purdue said that you exceptionally rarely deviate from the Lodestar calculation.

[00:16:52] Speaker 01:
So why don't you tell me why this is one of those exceptionally rare situations where it was appropriate for the district court to deviate from lodestar and double damages?

[00:17:03] Speaker 02:
I think that the district court not only looked at the low lodestar amounts, but also looked at the pattern and practice of lumen in bringing predatory litigation designed to any sort.

[00:17:14] Speaker 04:
Okay.

[00:17:15] Speaker 04:
Is that your other reason?

[00:17:16] Speaker 02:
Well, I think the other reason is that under Octane, Section 285 has two purposes.

[00:17:23] Speaker 02:
One is to compensate a defendant.

[00:17:25] Speaker 02:
The other is to deter federal investigation.

[00:17:28] Speaker 04:
I asked you how she selected two as opposed to three, 1.5, or anything else.

[00:17:34] Speaker 04:
Where does she tell us that?

[00:17:37] Speaker 02:
At the end of the decision, she said that she feels that two times enhancement would be appropriate.

[00:17:44] Speaker 02:
The evidence that we submitted shows that under the AIPLA standards, the cost through discovery would have been about $205.

[00:17:54] Speaker 01:
But you didn't go through discovery.

[00:17:56] Speaker 01:
None of that happened because she invalidated the patent very quickly and early in the litigation.

[00:18:03] Speaker 01:
So why is cost you would have incurred had she not done her job properly?

[00:18:07] Speaker 01:
a subject for something you should get.

[00:18:09] Speaker 02:
I think that it shows a range.

[00:18:11] Speaker 02:
I think it shows a range of what the court considered to be reasonable in this case.

[00:18:15] Speaker 01:
But it's not reasonable attorney fees you might have encountered in an alternate universe.

[00:18:21] Speaker 01:
It's the reasonable attorney fees in this case.

[00:18:24] Speaker 01:
So why are we looking at portions of the case that you never got to because she ruled in your favor and anticipating what you would have charged your client had those things come to pass?

[00:18:36] Speaker 01:
Do you see why I think it's absurd?

[00:18:40] Speaker 02:
Maybe I haven't explained it very well.

[00:18:41] Speaker 02:
So I think that the AITLA standard shows the potential range of actual attorneys who could have been extended.

[00:18:48] Speaker 02:
In this case, the load star amount was very low.

[00:18:50] Speaker 02:
She looked at the totality of the circumstances.

[00:18:52] Speaker 02:
In fact, the reasons that we just heard from Lumen's sample basically on why this case was exceptional and decided that that kind of conduct needed to be deterred.

[00:19:03] Speaker 04:
Where does she tell us to

[00:19:06] Speaker 04:
is better than 1.5.

[00:19:09] Speaker 06:
And where is the authority to enhance attorney fees under 285?

[00:19:15] Speaker 06:
It certainly is under 284.

[00:19:17] Speaker 06:
It damages the provision, but isn't only exclusive, self-serious, whatever.

[00:19:26] Speaker 06:
If enhancement is in 284 but not in 285, how is enhancement justified under 285?

[00:19:34] Speaker 02:
So 285 provides a reasonable attorney's fees.

[00:19:37] Speaker 02:
There is a line of cases, I think, that Judge Morge's referenced Purdue, where there was not a ban on enhancement of the low star amount.

[00:19:45] Speaker 02:
There is no per se rule that says the low star amount cannot be enhanced when you're determining in the court's inherent authority.

[00:19:50] Speaker 01:
Correct, but that was, this Purdue case is quite specific.

[00:19:54] Speaker 01:
I'll read it from it.

[00:19:55] Speaker 01:
Finally, a fee applicant seeking an enhancement must produce specific evidence that supports the award.

[00:20:01] Speaker 01:
An enhancement must be based on

[00:20:03] Speaker 01:
evidence that enhancement was necessary to provide fair and reasonable compensation, not deterrence, compensation.

[00:20:11] Speaker 01:
This requirement is essential if Lodestar method is to realize one of its chief virtues, providing a calculation that is objective and capable of being reviewed on appeal.

[00:20:22] Speaker 01:
The Supreme Court has carved out a very, very narrow universe when you can deviate from Lodestar to come up with a reasonable attorney fee award that is something different from Lodestar.

[00:20:33] Speaker 01:
And based on the Purdue case, I don't see how this case falls within that rubric at all because her virtues were deterrent since they're noble virtues and I don't have a problem with it.

[00:20:45] Speaker 01:
It's just that the Supreme Court explains why it's so important to have Lodestar because Lodestar is objective and is reviewable.

[00:20:53] Speaker 01:
And why you can't just make these sort of, you know, shoot from the hip.

[00:20:57] Speaker 01:
determinations, which is kind of, I think we got a sense from Judge Wallach's questions, you know, we're a little concerned about in this case that she just felt like double-founded good to her.

[00:21:07] Speaker 01:
How do I review that?

[00:21:08] Speaker 01:
What do I, how, I mean, how can I under Purdue decide whether or not that was the right amount?

[00:21:16] Speaker 02:
Well, I think under octane, the joint purposes of 285 being compensation and deterrence, and then I think also... But all of that in octane, you'll agree, goes to whether or not a case is deemed exceptional.

[00:21:26] Speaker 01:
I don't see anything in octane that suggests that those are, in fact, the factors to then assess when determining the amount of reasonable attorneys fees.

[00:21:34] Speaker 01:
Do you?

[00:21:35] Speaker 01:
I mean, do you think

[00:21:36] Speaker 01:
In octane, I should interpret the Supreme Court's determination of an amount of reasonable attorney's fees as to basically overrule Purdue and adopt a much broader theoretical, you know, let me consider all these mushy factors to come up with an amount.

[00:21:50] Speaker 01:
You think they were saying Lodestar is no longer the way to go?

[00:21:53] Speaker 02:
No, I don't think that's what they're saying.

[00:21:55] Speaker 02:
I don't think that I'm asking you to overrule Purdue by affirming the lower court's decision.

[00:21:59] Speaker 02:
I think that the district court has the inherent authority to assess the amount of reasonable fees that it thinks is appropriate.

[00:22:06] Speaker 01:
They have the inherent authority under 1927 to do more, to do something different than what they did here.

[00:22:13] Speaker 01:
Maybe that's what you'll ask her to do if we don't find it in your favor, is maybe go rule 11, go 1927.

[00:22:20] Speaker 01:
If we don't agree with you that the statute allows for enhancement, don't you have other avenues where you can attempt to seek the same?

[00:22:28] Speaker 01:
And given the way she wrote the opinion, it seems she felt pretty strongly that this was a baseless litigation.

[00:22:33] Speaker 02:
I think that we could seek the relief under other avenues.

[00:22:36] Speaker 02:
But I also think that this court's existing jurisprudence supports enhancement.

[00:22:40] Speaker 02:
I think that even under electromechanical, which is one of your opinions, you left room and contemplated that perhaps 285 would allow for enhancement.

[00:22:49] Speaker 02:
that it could be part of a reasonable fee award.

[00:22:53] Speaker 02:
But just in that case, there was no evidence for them to justify an award in excess of actual fees.

[00:22:59] Speaker 02:
But the court has contemplated in the math.

[00:23:01] Speaker 02:
In math, the court contemplated that 285 is not limited to reimbursement of amounts paid only for legal fees.

[00:23:08] Speaker 02:
In Juncker, the court said that actual fees are not a ceiling under 285.

[00:23:14] Speaker 02:
Ms.

[00:23:15] Speaker 04:
Juarez, I want to give you a chance to discuss your

[00:23:18] Speaker 04:
supposed fraud.

[00:23:21] Speaker 04:
I have to tell you, if I was you, I would have gone to the bar and said, I have this accusation against me.

[00:23:30] Speaker 04:
I want it resolved.

[00:23:31] Speaker 04:
And if you resolve it in my favor, then here's my complaint against opposing counsel.

[00:23:36] Speaker 04:
I always took that kind of language extremely seriously.

[00:23:39] Speaker 04:
Tell me about it.

[00:23:43] Speaker 02:
Would you like to hear about why the representations were that counsel made were false?

[00:23:48] Speaker 02:
Would you like to hear what I planned to do about it?

[00:23:50] Speaker 03:
No, you tell me why they were false.

[00:23:52] Speaker 02:
OK.

[00:23:53] Speaker 02:
So there were a number of statements that counsel made with respect to the arguments that we pointed out were raised newly on appeal.

[00:24:04] Speaker 02:
The counsel pointed to preliminary infringement contention to phone conversation with the court and to a letter that was submitted to the court.

[00:24:13] Speaker 02:
Throughout the case, in the infringement contention, in claim construction briefing, in the interrogatory process, in the briefing on the motion for exceptional case, the same position was held with respect to infringement, which is that the first preference data was submitted by a user of the website.

[00:24:32] Speaker 02:
The user would go to the website and say, for instance, that they wanted to find out information on what dog breed best suited them.

[00:24:39] Speaker 02:
So they would put in information about the size of the dog they wanted.

[00:24:41] Speaker 01:
It's definitely not a dating website.

[00:24:43] Speaker 02:
Although it's the first preference data and the second preference data you think is matchmaking.

[00:24:52] Speaker 02:
Definitely.

[00:24:53] Speaker 02:
So finding out that website is essentially, it compiles information and it allows users to go in and query.

[00:24:59] Speaker 02:
For instance, if you're torn between an Apple and Samsung phone, you can go and put in your screen size, battery life requirements, and it will return something that's recommended for you.

[00:25:08] Speaker 02:
So throughout the litigation, Lumen said that that constituted entry of first preference data.

[00:25:13] Speaker 02:
The second preference data Lumen contended was entered by companies who wanted to edit their listings or input new listings.

[00:25:21] Speaker 02:
Then, in the motion for reconsideration, Lumen suddenly decided that the

[00:25:28] Speaker 02:
But there's another set of preference data that arose from finding the best way out and gathering information, perhaps filling in gaps where it didn't have information in either, for instance, for screen size or something like that.

[00:25:40] Speaker 02:
The courts decided that those arguments were untimely and that they were new arguments that were not considered through the course of the exceptional case briefing and had not been raised before.

[00:25:50] Speaker 02:
And then Lumen repeated those arguments to this court.

[00:25:53] Speaker 02:
So those were new.

[00:25:55] Speaker 02:
That's what we said.

[00:25:55] Speaker 02:
We said they were newly raised in the motion for reconsideration and raised again on appeal.

[00:26:00] Speaker 02:
Not that there was a misrepresentation that they were new.

[00:26:05] Speaker 02:
With respect to the telephone conversation with opposing counsel,

[00:26:08] Speaker 02:
refers to, that was actually a conference with the court on the sufficiency of its infringement contention.

[00:26:16] Speaker 02:
There's a local rule in the Southern District of New York regarding the substance of infringement contention.

[00:26:22] Speaker 02:
We believe that the infringement contentions that were submitted did not meet the procedural requirements.

[00:26:26] Speaker 02:
We talked to the court.

[00:26:27] Speaker 02:
The court said these actually do meet the procedural requirements, but did not rule on the sufficiency or the substance of the infringement arguments in those contentions.

[00:26:38] Speaker 04:
Was there a transcript made of that thing?

[00:26:41] Speaker 02:
You know, I don't know.

[00:26:42] Speaker 02:
I assume there was, and counsel said that he ordered it, but I have not seen it.

[00:26:46] Speaker 02:
Okay.

[00:26:47] Speaker 02:
No.

[00:26:48] Speaker 02:
And then thirdly, counsel pointed to a letter that was included, that was sent to the court.

[00:26:54] Speaker 02:
I believe he said, I can't remember actually what he said the letter was for, but it's A694, and it was basically just to add some information about the PICS dispute, the infringement contention dispute on the record.

[00:27:08] Speaker 02:
It was not a letter in which the contentions or infringement theories were sent to the court.

[00:27:14] Speaker 04:
So you found his site for him.

[00:27:17] Speaker 02:
Well, I presume this is the letter that he was referring to, was the letter that was sent to the court.

[00:27:22] Speaker 02:
It was merely procedurally to correct and make sure there were some overlapping cases and some documents had been entered in one case but not the other.

[00:27:37] Speaker 02:
So I just want to...

[00:27:41] Speaker 02:
return to the court's underlying basis for the 285 decision that it was a prototype of an exceptional case.

[00:27:50] Speaker 02:
I think the court summed up very well the court's reasons for determining if this was an exceptional case, and I do not believe it's an abuse of discretion.

[00:27:59] Speaker 02:
When it comes to the enhancement of the low star factor, all aspects of the court's 285 decision are reviewed for abuse of discretion.

[00:28:06] Speaker 02:
And I do believe that in the court's inherent authority... How do we review it if she doesn't tell us?

[00:28:11] Speaker 02:
Doesn't tell you what.

[00:28:12] Speaker 03:
How she did it.

[00:28:14] Speaker 02:
So it just goes back to the one and a half times.

[00:28:16] Speaker 03:
Yes, it does indeed.

[00:28:19] Speaker 02:
You know, I think that the justification, looking at the dollar amount of the low star amount, which was under $150,000, and knowing that the court did, that there were 20 other litigations that were settled, presumably for a similar amount that was demanded from Find the Best, justifies the low star amount.

[00:28:38] Speaker 02:
She tell us that.

[00:28:40] Speaker 04:
Did she tell us that somewhere in the record?

[00:28:42] Speaker 01:
No, Your Honor.

[00:28:44] Speaker 01:
There you go.

[00:28:45] Speaker 01:
Is there any case you can point me to where an enhancement to attorney fees was based on deterrence principles?

[00:28:56] Speaker 02:
I am not aware of one.

[00:28:57] Speaker 02:
I don't believe that the partner is aware of anything under 285.

[00:29:01] Speaker 01:
I'm not saying under 285.

[00:29:02] Speaker 01:
I mean, I mean, at all.

[00:29:04] Speaker 01:
I mean, Purdue has nothing to do with 285, right?

[00:29:06] Speaker 01:
And Purdue is the leading case

[00:29:09] Speaker 01:
in your favor on the notion that reasonable attorney fees can include an enhanced amount in certain limited circumstances, can go beyond lodestar.

[00:29:18] Speaker 01:
Is there any other case following Purdue that you're aware of from the regional circuit that you think would be helpful to you?

[00:29:24] Speaker 01:
Because I think that Purdue lays out a very narrow set of circumstances in which enhancement can occur, and this case doesn't fall within those circumstances.

[00:29:34] Speaker 02:
Well, I would argue that there are cases that allow for awards other than attorney's fees, for instance, expert fees.

[00:29:42] Speaker 02:
And I believe that that would be considered as a turn.

[00:29:45] Speaker 02:
So if you see somebody go off, they go into litigation, and then they lose.

[00:29:51] Speaker 02:
And the other side is awarded not only its attorney's fees, but hundreds of thousands of dollars in expert fees, for instance.

[00:29:59] Speaker 02:
That could be considered a deterrent award.

[00:30:01] Speaker 02:
And the court has said that in certain cases, in rare cases, awards of expert fees are also justified under 285.

[00:30:08] Speaker 01:
But this isn't an award of expert fees either, is it?

[00:30:11] Speaker 02:
No, but it's an award of a multiplier to deter future cases.

[00:30:15] Speaker 04:
Well, the court also has powers, inherent powers to, for instance, issue in order to show cause.

[00:30:22] Speaker 04:
And if it finds cause, it can fine

[00:30:28] Speaker 04:
a party or council and that's a deterrent and that's directly a deterrent.

[00:30:33] Speaker 02:
Correct.

[00:30:36] Speaker 02:
I have nothing further.

[00:30:38] Speaker 06:
Thank you Ms.

[00:30:39] Speaker 06:
Juarez.

[00:30:40] Speaker 06:
Mr. Wasserbauer has two minutes for the bottle if he needs it.

[00:30:47] Speaker 05:
Thank you your honor.

[00:30:48] Speaker 05:
Your site is actually two letters.

[00:30:51] Speaker 05:
One is 1363-64 and 1390-91.

[00:30:56] Speaker 05:
I'm thinking about this.

[00:30:58] Speaker 05:
The court really didn't give us a chance to bring and set forth

[00:31:08] Speaker 05:
which she would say, to prove our case on an infringement site.

[00:31:12] Speaker 05:
There was no hearing, and we weren't given that opportunity.

[00:31:15] Speaker 05:
There's no finance.

[00:31:16] Speaker 05:
She could have had a hearing if she wanted to, but we didn't.

[00:31:19] Speaker 05:
We went through the discovery schedule, we put forward our claim constructions, R, and we matched up line by line, told them about Hartman, told them about what she should be doing, how this claim matches up in discovery.

[00:31:33] Speaker 05:
we basically show that Kevin O'Connor in a Wall Street Journal article told us that he is doing the counterparty, which is what all along the judge is saying, there's no counterparty, there's no third-party counterparty.

[00:31:47] Speaker 05:
That's Kevin O'Connor saying in a Wall Street Journal that it's a mission of the party opponent.

[00:31:52] Speaker 05:
That's what I would do pre-investigation saying, we do bilateral mention, we do it, and we do it in this way.

[00:32:00] Speaker 05:
We also

[00:32:02] Speaker 05:
found and they submitted in their brief at 1351 to 58 actual questionnaires that the experts fill out.

[00:32:14] Speaker 04:
How is that newspaper reference admissible in the record?

[00:32:17] Speaker 04:
Where is it in the record and how was it made admissible?

[00:32:20] Speaker 05:
Okay, I did that pre-founding investigation when they asked me in article 15 what I did.

[00:32:26] Speaker 05:
I said I did all these things, known pattern attorney would do and then some.

[00:32:30] Speaker 05:
Plus here is

[00:32:32] Speaker 05:
an additional piece of evidence that I reviewed and I gave that to them.

[00:32:36] Speaker 05:
We transcribed, that's been there since October 3rd before any of the rulings of this court and they have ignored it.

[00:32:44] Speaker 05:
The court has ignored it.

[00:32:46] Speaker 05:
I bring it up, I try to, I've done my best.

[00:32:50] Speaker 05:
As far as these Lodestar

[00:32:54] Speaker 05:
This case has defined a nuisance value as 10% SPK case, recent case, as 10% of the presumed what you could get damages.

[00:33:07] Speaker 05:
The awarded damages minus 85, your honor, would amount to about 50%.

[00:33:11] Speaker 05:
So if this is not 10%, it can't be nuisance.

[00:33:16] Speaker 06:
Thank you, Mr. Wussbauer.

[00:33:17] Speaker 06:
As you see, your time is up.

[00:33:19] Speaker 06:
We will take the case under advisement.