[00:00:24] Speaker 04:
Next case is Move Incorporated et al.

[00:00:28] Speaker 04:
versus Real Estate Alliance et al.

[00:00:32] Speaker 04:
2014-1657.

[00:00:35] Speaker 04:
Mr. Cusick, when you are ready.

[00:00:40] Speaker 01:
Thank you, Your Honor.

[00:00:41] Speaker 01:
I have a visual aid.

[00:00:42] Speaker 01:
Can I pass it up, Your Honor?

[00:00:44] Speaker 04:
I'm sorry.

[00:00:45] Speaker 01:
I have a visual aid to use during argument.

[00:00:47] Speaker 01:
May I submit?

[00:00:48] Speaker 04:
Is it grade two by the other party?

[00:00:51] Speaker 00:
It is not.

[00:00:52] Speaker 00:
It is not part of the record.

[00:00:53] Speaker 00:
It was not presented to the district court.

[00:00:54] Speaker 00:
We submitted a filing on it.

[00:00:56] Speaker 04:
Then we don't want to see it.

[00:00:58] Speaker 04:
Thank you.

[00:01:09] Speaker 01:
May it please the court, my name is Lawrence Husek, and I represent Real Estate Alliance Limited, which is known as REEL.

[00:01:15] Speaker 01:
I participated in the drafting of the patent in suit, and REEL's majority owner is Mark Tornetta, the inventor of the patent in suit.

[00:01:23] Speaker 01:
I come before this court to prevent a clear miscarriage of justice stemming from Apoly Move's litigation misconduct and the district court's blatant disregard of this court's mandate following the second appeal.

[00:01:35] Speaker 04:
But you say you come before this court.

[00:01:37] Speaker 04:
You come?

[00:01:38] Speaker 04:
before this court, what, for the third time?

[00:01:40] Speaker 01:
That is correct, Your Honor.

[00:01:41] Speaker 04:
And didn't we remand on a limited basis, which has now been foreclosed by the Supreme Court?

[00:01:46] Speaker 01:
No, Your Honor, it was not foreclosed.

[00:01:48] Speaker 01:
The mandate of this court instructed the district court to inquire into the question of the nature of the users of the selecting step and their relationship with Appley Move, as well as Move's knowledge and inducement.

[00:02:05] Speaker 01:
Following the remand, following the mandate, the district court said that that mandate had been eviscerated by the Supreme Court.

[00:02:14] Speaker 01:
It allowed only a status report to be filed.

[00:02:17] Speaker 01:
There was no additional finding of fact.

[00:02:19] Speaker 01:
There was no additional finding of law, merely reinstating.

[00:02:23] Speaker 01:
And so the district court utterly ignored the mandate in this case.

[00:02:28] Speaker 01:
This compounded the district court's error.

[00:02:31] Speaker 01:
because the district court failed to follow the standard procedures in summary judgment under Caterpillar in which it should have accorded the facts induced by real all of their weight and should have drawn all inferences in favor of real as the non-movement.

[00:02:47] Speaker 03:
And the district court.

[00:02:48] Speaker 03:
The mandate in the last appeal related to exploration of a theory under inducement under 271

[00:03:00] Speaker 01:
That is correct.

[00:03:01] Speaker 03:
And in what respect did the district court fail to adhere to that mandate?

[00:03:11] Speaker 03:
The district court addressed that question and said that in the interim, the Supreme Court had overturned that decision, overturned Akamai's en banc decision on inducement, and there was nothing else left to do.

[00:03:29] Speaker 01:
I respectfully differ, Your Honor.

[00:03:31] Speaker 01:
There was much left to do.

[00:03:33] Speaker 01:
What was left to do?

[00:03:34] Speaker 01:
The District Court never made a factual inquiry with respect to all of the users of the selecting steps of the claim.

[00:03:43] Speaker 01:
The District Court did not accord either the expert testimony or the factual evidence its due weight.

[00:03:50] Speaker 01:
There was substantial expert testimony that some of the users had contractual relationships with Move the appellee.

[00:03:57] Speaker 01:
There was substantial expert testimony and factual evidence that the host computer system, in fact, performed those steps.

[00:04:05] Speaker 03:
This is under direct infringement theory.

[00:04:08] Speaker 01:
This is under an induced infringement theory because the question in the mandate was, what is the relationship between Move and the users

[00:04:19] Speaker 01:
a question never answered by the district court.

[00:04:21] Speaker 01:
And is there knowledge on the part of move of the patent, and did it induce the users to perform those steps?

[00:04:29] Speaker 01:
Again, the district court ignored those questions in the mandate and merely reinstated its prior summary judgment.

[00:04:37] Speaker 01:
Well, what relevance does any of that have if there's no direct infringement?

[00:04:41] Speaker 01:
Because it is possible that there would have been direct infringement had the facts been accorded their due weight.

[00:04:48] Speaker 01:
And that is why we are here today.

[00:04:50] Speaker 03:
But wasn't that address the 271A direct infringement question in the last appeal?

[00:04:57] Speaker 01:
And it was addressed on the basis of a misrepresentation by move to the district court and to this court.

[00:05:05] Speaker 01:
In the first appeal, Judge Moore posited a hypothetical that a computer could select if there were objective criteria that were elicited from a user, and then the computer would say, this is an area where you should look for a house.

[00:05:20] Speaker 01:
It was incumbent upon Move at that time and subsequently in the district court to say, yes, Your Honor, our find a neighborhood function performs exactly that function.

[00:05:31] Speaker 01:
And yes, they failed to do that in this court and then doubled down by disclaiming that function in the district court.

[00:05:39] Speaker 01:
A clear error in fact.

[00:05:41] Speaker 01:
And that error in fact creates the hardship, creates the manifest injustice that I am here to address today.

[00:05:49] Speaker 01:
It is a factual finding.

[00:05:51] Speaker 01:
I am not questioning the law of the claim construction of this court as applied by the district court, but the district court clearly ignored facts on the record before it, and those facts were obscured by the litigation misconduct of move.

[00:06:08] Speaker 01:
We believe that it is important to recognize that.

[00:06:11] Speaker 01:
and then to recognize that we are here today to talk about 271A divided infringement solely because the district court made these errors that should be remedied.

[00:06:22] Speaker 01:
Because had the district court recognized the true function of the MOVE system, we would not be here discussing the question of whether 271A should be properly interpreted to allow the standard as it was at the time that this case began

[00:06:39] Speaker 01:
eight years ago, namely that parties acting in concert to perform the steps of the claim should be adjudged to be infringers.

[00:06:49] Speaker 01:
This is a case where that Fourier admonition against twisting a nose of wax has been violated twice.

[00:06:56] Speaker 01:
First, by the district court, when it inserted this phantom, this ghost in the machine of a user, all method claims require that there be some prime mover, someone who pushes the button to get it started

[00:07:09] Speaker 01:
pours the chemical from one beaker to another, operates the equipment.

[00:07:13] Speaker 01:
And I know, having drafted this claim, that the claim in this case is a claim for how the computer functions.

[00:07:22] Speaker 01:
Putting a user into a claim can be done with literally any method claim, and this is error.

[00:07:27] Speaker 01:
But beyond that, Your Honors, what we're facing here is a question of how the claim should be regarded

[00:07:35] Speaker 01:
And the second twisting of that nose of wax is the case that during the tendency of this action, we have gone from the standard of on-demand to requiring these... Can I ask you one thing?

[00:07:47] Speaker 02:
Yes, sir.

[00:07:49] Speaker 02:
You opened by saying there's been litigation misconduct here.

[00:07:53] Speaker 02:
Yeah.

[00:07:54] Speaker 02:
I heard that when you said that, and I said, well, I must have missed that in the brief.

[00:07:58] Speaker 02:
Is this an argument that's in the brief?

[00:08:00] Speaker 01:
I didn't...

[00:08:02] Speaker 01:
The find a neighborhood function clearly demonstrates that the hypothetical posed by Judge Moore and repeated by the district court as a justification for its ruling of non-infringement ignored the find a neighborhood function that we put before the court.

[00:08:19] Speaker 02:
Am I correct that I missed an allegation of litigation misconduct in here?

[00:08:23] Speaker 01:
No, Your Honor, you did not.

[00:08:25] Speaker 01:
But what I am saying now is that to have hidden the ball on that, to have specifically made statements

[00:08:32] Speaker 01:
in moving papers.

[00:08:33] Speaker 04:
But why are you wasting scarce time on an issue that was not briefed?

[00:08:38] Speaker 01:
I'm wasting it, I'm not wasting it, Your Honor.

[00:08:40] Speaker 01:
What I'm doing is addressing the question of whether the prior holding of this court was founded on quicksand, was founded on a misrepresentation.

[00:08:49] Speaker 02:
But doesn't the fire, you obviously have a problem with the prior holdings, I can understand that, but doesn't that holding stand as law of the case?

[00:08:59] Speaker 01:
Law of the case, your honor, relates to the law and not the facts.

[00:09:03] Speaker 01:
And there are three instances in which law of the case can be reversed in the appropriate instance.

[00:09:11] Speaker 02:
Because I understood in the briefing here that the real goal is that you wanted us to revisit Muni auction and BMC.

[00:09:21] Speaker 02:
And now I guess you would also want us to take another look at

[00:09:27] Speaker 02:
the Akamai Technologies versus Limelight opinion that came out on May 13th of this year.

[00:09:33] Speaker 01:
Yes, Your Honor.

[00:09:33] Speaker 02:
Absolutely, we believe that those... I mean, that was what I understood, the real thrust of the briefing to be that you felt the court should take in vain those earlier two cases, and now you would add to that the recent case that just came down.

[00:09:48] Speaker 01:
I certainly would, Your Honor, but the basis on which we are here to argue that those decisions were improvidently decided

[00:09:56] Speaker 01:
that the consistent narrowing of the standard for 271A infringement during the pendency of this litigation is the fundamental error that put the ghost in the machine, the user into the method claim.

[00:10:09] Speaker 01:
And that but for that fundamental error, we would not be here arguing 271A scope.

[00:10:15] Speaker 01:
And so we do not believe that there is a law of the case issue because there is a wrongly decided fact here.

[00:10:22] Speaker 01:
There is no doctrine of law of the case that is fact

[00:10:26] Speaker 01:
related, it's not a fact of the case doctrine.

[00:10:29] Speaker 01:
The law is that either a user or a computer may select, and we do not dispute this.

[00:10:35] Speaker 01:
But the clear facts on the record, absolutely indisputably, in expert testimony and documentary evidence, show, and should have been accorded full weight in a summary judgment context, show that the computer system and those who have contractual privity and relationships with move

[00:10:56] Speaker 01:
both performed the selecting step.

[00:10:59] Speaker 02:
Do you want us then to address the arguments you're making and at the same time, which a panel can do, recommend to the court that this case be considered en banc?

[00:11:11] Speaker 01:
Yes, Your Honor, absolutely.

[00:11:13] Speaker 01:
We had petitioned for hearing en banc.

[00:11:15] Speaker 01:
That was denied.

[00:11:17] Speaker 01:
I would ask that this panel recommend, in addition to all of the amici in the

[00:11:22] Speaker 01:
Akamai case, who have spoken that they believe that that case is improvidently decided and have requested unbunked hearing, I would ask that this panel join that course and address the 271A issue as this panel, as this court was invited to do by the Supreme Court in its Akamai decision, recognizing that there is an anomaly here.

[00:11:45] Speaker 02:
There's a... Which I guess that invitation was taken up in the

[00:11:49] Speaker 02:
May 15 act of my decision in this court, we did address the issue.

[00:11:53] Speaker 01:
Yes.

[00:11:54] Speaker 01:
And I would ask that that issue be reconsidered and readdressed.

[00:11:58] Speaker 01:
The reason that I am here, your honor, is that we face, without ever having had an evidentiary hearing, without a shred of testimony, being before you for the third time, a summary judgment decided quite in opposition to the standards of summary judgment set forth in Caterpillar.

[00:12:17] Speaker 01:
a summary judgment which did not give due weight to the evidence, and which misconstrued the law, and lastly, which ignored the mandate of this court, because it may be on full factual evaluation that there is no induced infringement in this case.

[00:12:35] Speaker 01:
But we do not know.

[00:12:36] Speaker 01:
There is not a shred of record evidence about that.

[00:12:39] Speaker 01:
The district court did not obey that mandate.

[00:12:41] Speaker 01:
The district court merely said what we have here is the mandate having been eviscerated.

[00:12:48] Speaker 04:
Mr. Husek, you're into your butthole time.

[00:12:50] Speaker 04:
You can either continue or save it.

[00:12:53] Speaker 04:
One quick question.

[00:12:55] Speaker 03:
Yes.

[00:12:56] Speaker 03:
Am I correct that you are not asserting a divided infringement claim in this case?

[00:13:03] Speaker 01:
We are at the moment under the law as it exists.

[00:13:07] Speaker 03:
No, no, no, no.

[00:13:09] Speaker 03:
It seems to me that in the record below, you made it clear to the district court that you were not asserting a divided infringement claim, that your claim was predicated on the fact that the parties who are involved and accused of infringement were themselves actually performing all of the steps and that therefore,

[00:13:32] Speaker 03:
Whatever the outcome in Akamai, it doesn't make a difference in your case.

[00:13:37] Speaker 01:
Your Honor, at a time when that law was in flux, we stated to the court that it was our belief that the facts properly accorded would show that the MOVE computer system performed all of those steps.

[00:13:50] Speaker 03:
And that you were not asserting a divided input.

[00:13:53] Speaker 03:
At that time, under the law, as then decided, yes, Your Honor.

[00:13:56] Speaker 01:
Well, at that time.

[00:13:58] Speaker 01:
At that time.

[00:13:59] Speaker 01:
We did not.

[00:14:01] Speaker 01:
Wave that argument.

[00:14:02] Speaker 01:
We did not say anything which would have been a knowing, affirmative waiver of making the argument in the case the law changed.

[00:14:11] Speaker 03:
And you made that clear?

[00:14:12] Speaker 03:
I believe we did, Your Honor.

[00:14:14] Speaker 03:
Thank you.

[00:14:15] Speaker 03:
Where did you make that clear in the record?

[00:14:16] Speaker 03:
I just want to be clear on this point.

[00:14:19] Speaker 01:
I believe that we made that clear in the record by asking the district court to accord proper weight to the facts to observe that the users had

[00:14:30] Speaker 01:
contractual relationships.

[00:14:32] Speaker 01:
And thus, under the mastermind theory, under the direction and control theory, and under the contract theory, there was no need to consider the divided infringement question.

[00:14:44] Speaker 01:
Thank you.

[00:14:44] Speaker 04:
Husek will give you three minutes of rebuttal.

[00:14:47] Speaker 04:
Thank you, Your Honor.

[00:14:48] Speaker 04:
If you need it.

[00:14:49] Speaker 00:
Ms.

[00:14:49] Speaker 04:
McGrath.

[00:14:50] Speaker 00:
May it please report.

[00:14:52] Speaker 00:
My name is Robin McGrath.

[00:14:53] Speaker 00:
I'm here on behalf of the appellees.

[00:14:56] Speaker 00:
National Association of Realtors, National Association of Home Builders, I will collectively refer to them as MOVE.

[00:15:03] Speaker 00:
This court should affirm the district court's entry of summary judgment of non-infringement because under the law of divided or joint infringement, both as it stands today and as it stood at the time summary judgment was entered, MOVE cannot be found liable for either direct or indirect infringement.

[00:15:23] Speaker 00:
Specifically, in the immediately prior appeal to this case, this court, quote, agrees with the district court, there is no genuine issue of material fact that move does not control or direct the performance of each step of the claim method, and it concluded, unquote, and it concluded, quote, that the district court did not err by finding no genuine issue of material fact that move is not liable for direct infringement of claim one.

[00:15:49] Speaker 00:
Under the Supreme Court's Akamai decision,

[00:15:51] Speaker 00:
In the absence of a liability for direct infringement, there can be no liability for indirect infringement.

[00:15:58] Speaker 00:
And that's it.

[00:15:59] Speaker 00:
That's really, at this point, all this court needs to consider to address the merits of Reel's appeal.

[00:16:08] Speaker 00:
I want to address some of the statements by Mr. Husek about litigation misconduct.

[00:16:15] Speaker 00:
You're right.

[00:16:15] Speaker 00:
That is not what this case has ever been about.

[00:16:20] Speaker 00:
Real's case, Real says that the law has been moving a target.

[00:16:24] Speaker 00:
The only thing that has been a moving target in this case is Real's theory of infringement.

[00:16:29] Speaker 00:
It loses one, it shifts to another.

[00:16:32] Speaker 00:
It loses that, it shifts to another.

[00:16:34] Speaker 00:
As was pointed out, the original theory was that move itself performs all steps of the case.

[00:16:44] Speaker 00:
We move for summary judgment on the ground that MOVE does not perform all steps and does not direct or control the performance of the steps.

[00:16:52] Speaker 00:
At that point, it was incumbent upon Reel to come forward with all of the evidence they had to show otherwise, to either show that MOVE in fact performed all the steps or to show that they directed or controlled the steps.

[00:17:05] Speaker 00:
They did neither.

[00:17:06] Speaker 00:
They did make a good effort to try to show that MOVE performed all the steps.

[00:17:12] Speaker 00:
What they didn't do is come forward with just

[00:17:14] Speaker 00:
find a neighborhood evidence that we are hearing about now in this case for the first time.

[00:17:20] Speaker 00:
This case has been pending since 2008.

[00:17:22] Speaker 00:
This evidence that apparently MOVE engaged in misconduct for not coming forth with, they didn't come forth with on summary judgment.

[00:17:31] Speaker 00:
If that evidence truly showed that MOVE performed all the steps, then they should have identified it at that point.

[00:17:38] Speaker 00:
They didn't.

[00:17:40] Speaker 00:
did they show any evidence of direct action in control?

[00:17:44] Speaker 00:
As you pointed out correctly, Your Honor, they denied that a user even got involved in the selecting step.

[00:17:51] Speaker 00:
Their whole position was the user does not select the step, perform the selecting step.

[00:17:58] Speaker 03:
Mr. Yisik says that he hasn't waived that argument, that theory.

[00:18:03] Speaker 03:
Is that correct?

[00:18:05] Speaker 00:
If ever there was a more clear case of waiver before this court, I am not aware of it.

[00:18:12] Speaker 00:
Those issues not raised below at the district court cannot be heard for the first time appeal.

[00:18:17] Speaker 00:
That's from this court's Conoco versus Energy versus an environmental case, 460 F1349, and a million other cases that say the same thing, this court has said.

[00:18:28] Speaker 00:
They did not raise direction and control

[00:18:33] Speaker 00:
Not only did they waive it, but they affirmatively disavowed it.

[00:18:37] Speaker 00:
They came out and said, the user does not select.

[00:18:41] Speaker 00:
Move is the only one it selects.

[00:18:43] Speaker 00:
And they even went further and said, oh, by the way, Akamai is irrelevant.

[00:18:48] Speaker 00:
In fact, after the initial remand from the first appeal, we asked the court to stay the case because Akamai had been agreed to be heard en banc.

[00:19:00] Speaker 00:
And we thought it made sense to get some direction from the court before we went ahead and filed a motion for summary judgment on the issue.

[00:19:06] Speaker 00:
And Rio filed a brief saying, it's irrelevant.

[00:19:10] Speaker 00:
Akamai has nothing to do with this case.

[00:19:13] Speaker 00:
This is not a direction and control case.

[00:19:15] Speaker 00:
This is a case in which MOVE performs all of the steps themselves.

[00:19:20] Speaker 00:
How those facts can support a statement

[00:19:25] Speaker 00:
that they preserved this argument for appeal and did not waive it.

[00:19:28] Speaker 00:
I'm at a loss.

[00:19:30] Speaker 00:
I can't see it.

[00:19:31] Speaker 00:
We think that not only has there been a clear waiver, in addition, the law of the case would say, this court has already decided, no direct infringement.

[00:19:42] Speaker 00:
They can't get a second bite of the apple.

[00:19:45] Speaker 00:
They cannot go from, this is not a direction and control case, this is just a direct infringement case, to, well,

[00:19:53] Speaker 00:
we should change the standard for direction and control, which is what their appeal was based on, their appellate brief.

[00:20:00] Speaker 00:
That went out the door when this court denied on-bank hearing twice because they moved for reconsideration and it was denied as well.

[00:20:08] Speaker 00:
So now they're actually coming with a third theory that we are hearing now for the first time, which is that we actually did directly infringe by performing all of the steps ourselves based on this evidence that

[00:20:21] Speaker 00:
was never seen before.

[00:20:22] Speaker 00:
And it was the demonstrative that they were wanting to put forward that we responded to in our brief that said, where did this come from?

[00:20:29] Speaker 00:
We've not seen it before.

[00:20:31] Speaker 00:
So between waiver, between the law of the case, between this court's prior decision.

[00:20:40] Speaker 00:
And I do want to address the mandate issue because the idea that the district court disregarded the mandate is

[00:20:48] Speaker 00:
And frankly, I don't know where that came from.

[00:20:50] Speaker 00:
The mandate was very specific.

[00:20:52] Speaker 00:
It was remanded specifically to address indirect infringement under the law of Akamai on the on-bank decision.

[00:21:02] Speaker 00:
That's what the court was, that was what the mandate said.

[00:21:06] Speaker 00:
The district court, by the time it went to address that, Akamai had been reversed by the Supreme Court.

[00:21:13] Speaker 00:
And so the district court said the whole basis for the mandate has been undermined.

[00:21:18] Speaker 00:
factually accurate.

[00:21:20] Speaker 04:
That court then asked, gave... In other words, what happens to the remand when the purpose of the remand is vitiated by a subsequent Supreme Court decision?

[00:21:31] Speaker 00:
Well, at that point, what the court said was the only reason this was remanded was for determination under a law that no longer exists

[00:21:40] Speaker 00:
And that, your honor, was the only reason this court remanded it was because of that change in law, had it not been for that change of law.

[00:21:48] Speaker 04:
In other words, the district court should have then dismissed the case?

[00:21:50] Speaker 00:
Well, it re-entered summary judgment at that point.

[00:21:54] Speaker 00:
It just said, I'm going to reinstate what we did before.

[00:21:57] Speaker 04:
And that's what's on appeal now.

[00:21:59] Speaker 00:
And that's what's on appeal right now.

[00:22:00] Speaker 00:
But I don't see any basis for that because the district

[00:22:07] Speaker 00:
Reel says the district court did not give it a chance to respond.

[00:22:11] Speaker 00:
I have two responses to that.

[00:22:12] Speaker 00:
Number one, it did.

[00:22:14] Speaker 00:
The district court gave Reel 20 days before re-entering summary judgment on moves and requests to respond.

[00:22:21] Speaker 00:
Reel did not respond.

[00:22:23] Speaker 00:
But I would submit, Your Honors, that had it responded, the district court would have been without power to even address the issues, because the mandate was very specific.

[00:22:33] Speaker 00:
Address induced infringement.

[00:22:35] Speaker 00:
under the on-bank Akamai decision, which went away.

[00:22:39] Speaker 00:
So the district court couldn't have addressed that decision on the mandate, had no choice but to re-enter.

[00:22:45] Speaker 04:
So you're saying the effect of the Supreme Court decision wasn't to enable the district court to hear a different argument?

[00:22:56] Speaker 00:
That's exactly right, Your Honor.

[00:22:58] Speaker 00:
Or a new theory.

[00:22:59] Speaker 00:
Or any new theory.

[00:23:00] Speaker 00:
All the Supreme Court decision did

[00:23:03] Speaker 00:
would place the law back to exactly the way it was when summary judgment was entered.

[00:23:09] Speaker 00:
And nothing else has happened.

[00:23:11] Speaker 00:
No new evidence has arisen.

[00:23:13] Speaker 00:
No additional case law has issued.

[00:23:16] Speaker 00:
Nothing that would suggest the law of the case as decided by this court in the prior appeal should be changed.

[00:23:23] Speaker 00:
And given that finding of no direct infringement, there can be no finding of indirect infringement under the Supreme Court's Akamai.

[00:23:31] Speaker 00:
That's it.

[00:23:32] Speaker 00:
There's nothing more to decide, except in our opinion, whether we've moved for sanctions because we believe that this appeal was so lacking in merit that it should issue in sanctions.

[00:23:45] Speaker 00:
I really don't have much else to offer unless Your Honors have any questions or issues.

[00:23:49] Speaker 00:
That's our position in a nutshell.

[00:23:53] Speaker 04:
Thank you, Ms.

[00:23:54] Speaker 04:
McGrath, Mr. Fusick.

[00:23:55] Speaker 04:
Thank you.

[00:23:57] Speaker 04:
You have three minutes if you need it.

[00:24:00] Speaker 01:
Your Honor, the precise language of the mandate instructed the district court to determine whether a genuine issue of material fact existed as to the performance of all the claim steps, whether by one entity or several.

[00:24:13] Speaker 01:
Moreover, the district court did not analyze whether Move had knowledge of Reel's patent and induced users to perform the claim steps that Move did not itself perform.

[00:24:23] Speaker 01:
The record is silent as to any information that the district court decided on either of those things, because the district court decided that it didn't have to.

[00:24:33] Speaker 01:
What it said was that the Federal Circuit mandate had been totally undermined.

[00:24:38] Speaker 01:
And it said, accordingly, we now reinstate our grant of summary judgment of non-infringement in favor of move.

[00:24:45] Speaker 01:
The district court procedurally demanded of the parties only a status report.

[00:24:52] Speaker 01:
And when local council inquired as to whether additional argument would be permitted or evidence on those questions relevant to the mandate, the district court responded in the negative.

[00:25:02] Speaker 01:
Let me now address Ms.

[00:25:03] Speaker 01:
McGrath's argument.

[00:25:06] Speaker 01:
There is in the record, Your Honor, a declaration of a Mr. Mankin at A154 at SEC, which is Move's attempt to demonstrate

[00:25:18] Speaker 01:
that its users are not bound to it under contract, are not under direction and control, and so forth.

[00:25:24] Speaker 01:
And this was entered in the record in response to direct statements by Reel that those factors, direction and control, mastermind, and so forth, did exist.

[00:25:37] Speaker 01:
In the district court, Reel argued both theories, both that all steps were performed and that there was some form of contractual relationship and therefore direction and control

[00:25:48] Speaker 01:
But the district court only addressed the question whether all steps had been performed as this court recognized in the second appeal.

[00:25:56] Speaker 01:
And finally, the holding of the district court is only that MOVE did not perform all of the steps.

[00:26:03] Speaker 01:
It did not address the control issue that was the subject of the mandate.

[00:26:07] Speaker 01:
And we believe that that is a sufficient reason for overturning the entry of summary judgment for according the evidence, its due weight.

[00:26:16] Speaker 01:
and for sending this case finally back for a full hearing.

[00:26:20] Speaker 01:
Thank you.

[00:26:20] Speaker 04:
Thank you, Mr. Gusek.

[00:26:21] Speaker 04:
We'll take the case under advisement.