[00:00:53] Speaker 03: Okay. [00:00:54] Speaker 03: Next case is number 14-1300, Pure Fishing Incorporated against Normark Corporation. [00:01:01] Speaker 03: Mr. Witt, are you ready? [00:01:05] Speaker 02: Thank you, Your Honor. [00:01:06] Speaker 02: May it please the Court, I'm addressing first our appeal of the denial of fees and the exceptional case motion in the Cook patent claim. [00:01:14] Speaker 02: We had two claims in this case, one the subject of the cross appeal. [00:01:18] Speaker 02: Our appeal of the denial of fees in the Cook patent case can be boiled down to a simple proposition, and that is when a plaintiff patent holder has no factual or legal basis for a claim of validity, it is an abuse of discretion in that situation for the district court to deny an exceptional case motion. [00:01:42] Speaker 02: We think this result follows directly from Octane Fitness, which instructs the courts, the district court, to look at the substantive strength of the party's litigating position. [00:01:54] Speaker 04: Is your argument that they never had any substantive basis for a claim of validity, or that at some point in time during the course of discovery, the lightbulb should have gone off? [00:02:08] Speaker 02: Both, Your Honor. [00:02:09] Speaker 02: The facts came out during discovery that they never had a legitimate claim of validity. [00:02:17] Speaker 02: What we point out in addressing the second basis under Octane Fitness, the unreasonable manner of litigation, is that they knew that from the very beginning. [00:02:27] Speaker 02: They're chargeable with the knowledge of Mr. Cook, who was the inventor of his notebooks, of his colleague Mr. Foote. [00:02:34] Speaker 02: And they actually wrote a letter to their patent lawyer the day after the very first experiments were done saying, we got this idea and suggestion from our supplier. [00:02:43] Speaker 02: It was recommended to us by our supplier. [00:02:46] Speaker 02: They knew from the beginning, but our argument is, and if you look at your precedent pre-octane fitness, when you look at that objective baselessness prong, which is now the substantive strength basis, this court instructed the district courts to look back at the whole proceeding and decide, is there substantive strength here? [00:03:07] Speaker 04: Yeah, but now it seems like you're trying to sort [00:03:10] Speaker 04: backtrack on what was accomplished or what the Supreme Court thought it was accomplishing in octane fitness, which is you're trying to say, all right, it used to be that you had to have prong A and prong B. We agree that maybe you don't need prong B anymore, but we're going to say every time you have prong A, the district court is bound [00:03:30] Speaker 04: to make a finding that fees are appropriate. [00:03:32] Speaker 04: But isn't the whole point that the district court is to look at the totality of all of the circumstances and exercise his or her discretion to determine whether or not fees are appropriate? [00:03:43] Speaker 02: Your Honor, I don't think we're saying something different. [00:03:46] Speaker 02: What Octane Fitness instructs is that a case is exceptional under Section 25, either if the substantive strength is extraordinarily exceptionally weak, [00:03:58] Speaker 02: or the case was litigated in an unreasonable manner. [00:04:02] Speaker 04: So here the court went through a whole variety of finding, one of which is pointing out that he stipulated to infringement. [00:04:11] Speaker 04: So it's not like you've asserted a claim and there's no basis for the infringement claim. [00:04:18] Speaker 04: Second, you asserted inequitable conduct and the court found that there was no basis for that assertion, or at least not a sufficient basis for that assertion. [00:04:26] Speaker 04: So there was an alternative basis for your invalidity claim that even you say you weren't fully aware of until the course of discovery. [00:04:36] Speaker 04: So why isn't that good enough to say, OK, I'll give you [00:04:40] Speaker 04: that that aspect of their claim was very weak, but because the other aspects of their claim were not, and I'm not completely convinced that they acted with bad faith in bringing this, or fully understood the implications of what the inventor did before he filed, that I'm going to deny this claim. [00:05:01] Speaker 04: Isn't that exactly what we're supposed to defer to? [00:05:04] Speaker 02: I don't think so, Your Honor. [00:05:06] Speaker 02: And I think that's inconsistent, frankly, with octane fitness, which says that it's exceptional if either the substantive strength or the manner of litigation is unreasonable or exceptional. [00:05:16] Speaker 02: But it's also important, the scenario you're positing is, really, it doesn't matter how bad that validity position is. [00:05:23] Speaker 02: This was an inventorship issue where there's just no basis to say that Roger Cooke was the true inventor. [00:05:28] Speaker 02: There never was. [00:05:29] Speaker 01: Well, now, just the district court judge didn't agree with you on that. [00:05:33] Speaker 01: I mean, you're positing the inventorship issue as though their claim to inventorship should have been deemed to be frivolous. [00:05:42] Speaker 01: Yes. [00:05:43] Speaker 01: So my understanding of how the district court looked at that, they said, for example, pure phishing's arguments based on Cook's possibly flawed recollection nearly 20 years after the patent had issued, and limited understanding of patent law, as well as Foote's possibly contradictory testimony were likewise not so unreasonable. [00:06:04] Speaker 02: That's exactly the finding that I'm challenging. [00:06:08] Speaker 01: It might be helpful to really get the hammer close to the nail, for example. [00:06:15] Speaker 01: So isn't that the issue in the case, is whether or not the judge should have said that I throw all of that argument out, that's unacceptable. [00:06:24] Speaker 02: That's precisely right. [00:06:25] Speaker 02: Now why should I do that? [00:06:26] Speaker 02: So, Your Honor, the District Court, and I'm going to go through this, the District Court... And, Lauren, just back up. [00:06:32] Speaker 01: Okay. [00:06:32] Speaker 01: If we validate what the District Court said here, we said the District Court, when they said, well, pure fishing had a leg to stand on, not a very good one in the end, if we leave that finding effect in there, then you don't have a case, right? [00:06:50] Speaker 01: That's right. [00:06:50] Speaker 02: Then I lose. [00:06:51] Speaker 02: Good. [00:06:51] Speaker 02: Absolutely. [00:06:52] Speaker 02: So the reason I think you should not do that and you should reverse is that the district court ignored all the facts in the case. [00:06:59] Speaker 02: The district court ignored the law of conception that governs the issue. [00:07:03] Speaker 02: And the district court ignored it. [00:07:04] Speaker 01: But that goes to the possible misunderstanding of the law, the statement that they made. [00:07:08] Speaker 01: Why isn't it all knitted together in this few sentences that the district court said for her money that it was a non-frivolous allegation of advantage? [00:07:19] Speaker 02: Well, we have to look at the underlying facts, which she did not do. [00:07:23] Speaker 02: The judge did not discuss the underlying facts at all in her order. [00:07:26] Speaker 02: She did not discuss the law of conception in her order, and she, very importantly, did not discuss the requirements of the claim, the patent claim that we're talking about. [00:07:35] Speaker 04: But we can't assume that she didn't understand the law. [00:07:42] Speaker 04: She granted you summary judgment on that point, right? [00:07:45] Speaker 02: We can certainly assume that she understood it. [00:07:47] Speaker 02: What we're trying to get at is an abuse of discretion is, did she make a clear mistake on the facts? [00:07:53] Speaker 02: or did she make an error of law? [00:07:54] Speaker 02: In her judgment, this is a mixed question of law and fact, her judgment that the claim was not exceptional. [00:08:01] Speaker 01: When you're trying to attack someone with a statement against interest that they've made, which is what you want to do with Cooke, and if the deciding official says, well, I understand that you think it's a clam dunk statement against interest, but maybe Cooke didn't know what he was saying. [00:08:17] Speaker 01: Well, didn't she see Cook? [00:08:20] Speaker 01: Did Cook testify? [00:08:21] Speaker 01: Cook testified, she saw the doctor. [00:08:23] Speaker 01: Perhaps she's making a judgment about his demeanor, maybe this old guy who can't quite keep things straight. [00:08:30] Speaker 01: Isn't some of that possibly filtering into a discretionary home? [00:08:34] Speaker 02: That's not the issue though, Your Honor. [00:08:36] Speaker 02: The issue is what was the evidence concerning conception and derivation, and it wasn't just his testimony, although his testimony was crystal clear. [00:08:47] Speaker 02: It was also his notebooks. [00:08:48] Speaker 02: And so what we had here is we have a claim, the patent claim requires heat stretching under certain parameters of braided fishing line. [00:08:58] Speaker 02: And it's undisputed that the supplier, DSM, recommended to Mr. Cook's colleague Foote that you should use heat stretching to increase tenacity before Cook's conception. [00:09:12] Speaker 02: And it was undisputed that the supplier, DSM, actually did the process exactly as in claim one. [00:09:22] Speaker 03: specific details, hardness, and others in the claim that nobody had said were communicated to Mr. Foote. [00:09:33] Speaker 02: No, that's not right, Your Honor. [00:09:35] Speaker 02: The claim, the record is that the cookbook that DSM gave Mr. Foote, and it's recorded in Mr. Foote's notebook, matches claim one exactly, matches claim four and five exactly. [00:09:47] Speaker 02: Mr. Cook so testified. [00:09:49] Speaker 03: She's got the durometer hardness characteristic, for instance. [00:09:54] Speaker 02: That's in the other case, Your Honor. [00:09:57] Speaker 02: There isn't a hardness element in the Cook patent claim. [00:10:01] Speaker 02: Are you sure? [00:10:03] Speaker 02: Yeah, the Cook patent claim is... Okay, that's Kelly, you're right. [00:10:06] Speaker 02: That's Kelly, yeah. [00:10:07] Speaker 02: Sorry, Your Honor. [00:10:09] Speaker 02: So, what Cook said over and over again in his notebook, it's all documented in his notebook, it's not just his testimony, is the very first time I did heat stretching, the very first time, was October 5th, 1994. [00:10:24] Speaker 02: And when I did that, that's my conception date, and when I did that heat stretching work, I got that idea from DSM, [00:10:31] Speaker 02: It was not my idea. [00:10:33] Speaker 03: Well, let's go back to the same theme. [00:10:36] Speaker 03: Still, there are specifics in the Cook patent as well that nowhere in the record does it say that you should go from a specific denier to another or to the specific details, at least in the subordinate claims. [00:10:53] Speaker 02: that's not correct your honor. [00:10:55] Speaker 02: The record is that claims one, four, and five are the only asserted claims and claims one, four, and five the DSM recommendation and what DSM actually did is recorded in Foote's notebook and is testified to by Foote and Cook matches claim one exactly. [00:11:10] Speaker 04: But the court felt that Foote's testimony was somewhat contradictory. [00:11:16] Speaker 04: There was testimony both from DSM's own director of research and [00:11:21] Speaker 04: and your expert that said it wasn't clear whether or not DSM had conceived of this before. [00:11:27] Speaker 02: That's not the record, Your Honor. [00:11:30] Speaker 02: DSM's director of research, Mr. Van Gorp, had no knowledge of this recommendation and this prior heat stretching. [00:11:38] Speaker 02: Somebody at DSM did the exact process that's recorded in Foots Notebook. [00:11:42] Speaker 02: There's no dispute about this. [00:11:43] Speaker 02: Mr. Van Gorp, their expert, DSM's former director of research, had no knowledge of that. [00:11:48] Speaker 02: All he said was, we didn't have independently developed know-how about stretching graded fishing lines in this particular way. [00:11:57] Speaker 02: He's mixing up, we've got to remember the patent claim is very broad and very basic. [00:12:02] Speaker 02: Mr. Van Gork never disputed at all that DSM recommended exactly this process to Mr. Foote and that Cook said, it wasn't my idea, it was DSM's idea. [00:12:13] Speaker 02: I followed the Cook book given by DSM exactly and I did that because they recommended it. [00:12:18] Speaker 02: That was the evidence in the case. [00:12:19] Speaker 02: He admitted he wasn't the inventor. [00:12:22] Speaker 02: over and over again, and it's documented that he wasn't the inventor. [00:12:25] Speaker 02: And it's important for this court to understand the district court's abuse of discretion is she doesn't deal with any of that evidence in the exceptional case motion. [00:12:33] Speaker 02: The only argument raised by pure fishing to counter that was to bring up this May 1993 work that Mr. Cook had done. [00:12:42] Speaker 02: And Mr. Cook testified flat out, that's not my conception. [00:12:47] Speaker 02: That was not heat stretching. [00:12:49] Speaker 02: It didn't match the elements of the claim. [00:12:51] Speaker 02: It was really a misleading argument to even bring. [00:12:54] Speaker 02: The judge abused her discretion because she didn't deal with the facts of the case, didn't deal with the law of conception, and did not even address the claims. [00:13:03] Speaker 02: And I see I'm in my rebuttal time. [00:13:05] Speaker 02: So I'll stop. [00:13:05] Speaker 03: Thank you. [00:13:06] Speaker 03: OK. [00:13:06] Speaker 03: Let's hear from the other side. [00:13:08] Speaker 03: Let's hear from Mr. Banner. [00:13:09] Speaker 00: May I please escort? [00:13:10] Speaker 00: Thank you, Your Honor. [00:13:13] Speaker 00: This appeal presents an attempt by a partially successful litigant below to shift fees in two cases in which there was reasonable litigation conduct and reasonable evidence. [00:13:24] Speaker 00: The focus of the earlier questioning was on the Cook case, the line patent, and I'll turn there to begin with. [00:13:29] Speaker 00: The standard, of course, has changed with high mark and octane fitness, but it is still now a totality of the circumstances review of the record by the district court in its discretion. [00:13:42] Speaker 00: to determine if a case stands so far out of the ordinary, so unreasonable. [00:13:49] Speaker 00: that it should award. [00:13:50] Speaker 04: Well, should we, I mean, I see two problems with the district court analysis. [00:13:54] Speaker 04: One is that the district court, that your friend on the other side is correct, the district court certainly didn't walk through all those facts when it said that the claim of inventorship wasn't so frivolous as to be outside the bounds. [00:14:09] Speaker 04: It did not discuss. [00:14:14] Speaker 04: Cook's notebook, it did not discuss whether or not there was evidence that there had been preconception. [00:14:24] Speaker 04: Should we say, well, maybe the trial court is entitled to deference to the exercise of her discretion, but she didn't really exercise it. [00:14:32] Speaker 00: No, Your Honor. [00:14:33] Speaker 00: The trial court did exactly that. [00:14:35] Speaker 00: If you look at the evidence that the trial court looked at, it included the fact that Mr. Foote testified [00:14:42] Speaker 00: Prior to the meetings with allied signal and DSM, Pure Fishing was concerned about keeping close to its best its work on heat stretching. [00:14:54] Speaker 00: That was his testimony. [00:14:55] Speaker 00: Now, is there contradictory testimony? [00:14:57] Speaker 00: Certainly, as Mr. Bitt pointed out. [00:14:59] Speaker 00: There is some. [00:15:01] Speaker 00: It also pointed out that Mr. Cook's testimony was very confused about what conception meant, very confused about [00:15:09] Speaker 00: what the legal standard was for conception. [00:15:11] Speaker 00: He consistently testified, yeah, I tried some of this stuff that Foots at DSM had suggested, but what they had was commercially impracticable. [00:15:18] Speaker 00: I had to keep working. [00:15:19] Speaker 00: We didn't get an invention. [00:15:21] Speaker 00: That's why it took another year. [00:15:22] Speaker 00: That's why I ran these hundreds of experiments. [00:15:25] Speaker 00: It was not dispositive testimony. [00:15:27] Speaker 00: It was not admission of a party, as Norm Marcus tried to argue at a point. [00:15:31] Speaker 00: It wasn't from a 30 v. [00:15:32] Speaker 00: 6 deposition. [00:15:33] Speaker 00: The May 1993 documents [00:15:38] Speaker 00: the characterization of them in the record that it's not heat stretching, that's inaccurate. [00:15:42] Speaker 00: The braided line was stretched under heat on a different mechanism, and it changed its properties. [00:15:48] Speaker 00: But the properties looked for in the patent were not checked at that time. [00:15:52] Speaker 00: When checked later, it actually occurred. [00:15:54] Speaker 00: That did change, but that didn't happen at that time. [00:15:56] Speaker 00: That's correct. [00:15:57] Speaker 00: But it happened in May of 93. [00:15:59] Speaker 00: Mr. Van Gork's testimony here is also fair. [00:16:01] Speaker 00: He was the director of research for that company. [00:16:04] Speaker 00: He was in the Netherlands in October of 1994. [00:16:07] Speaker 00: He attended some of the meetings. [00:16:10] Speaker 00: Mr. Foote attended all the meetings. [00:16:12] Speaker 00: They both testified. [00:16:13] Speaker 00: DSM didn't invent this. [00:16:16] Speaker 00: Now, that's a contest of evidence. [00:16:19] Speaker 00: That's what we see in a case like Bianco, which is an unreported case cited here, where there's a contest of evidence, some of it's cooperative. [00:16:27] Speaker 00: At the end of the day, the district court said your evidence isn't strong enough. [00:16:31] Speaker 00: Yours is a lot stronger. [00:16:32] Speaker 00: They get some re-judgment on this issue. [00:16:35] Speaker 04: The other issue that concerns me is the fact that the district court seemed to put some weight on the fact that this whole invalidity issue arises in the context of an affirmative defense. [00:16:48] Speaker 04: Does that matter? [00:16:50] Speaker 00: To an extent, I think it does, Your Honor. [00:16:52] Speaker 00: The burden of proof is an appropriate thing to examine as part of the context. [00:16:56] Speaker 00: this court said so pre-Octane Fitness and nothing in Octane Fitness or Highmark said you should ignore it. [00:17:01] Speaker 04: Okay, and I think your friend on the other side would agree with that proposition. [00:17:04] Speaker 04: What he's saying is beyond the burden of proof. [00:17:07] Speaker 04: Did the district court give undue weight to the fact that it arises in that context? [00:17:14] Speaker 00: I don't believe so, Your Honor. [00:17:15] Speaker 00: I think the district court's analysis was you had the burden of proof on this. [00:17:18] Speaker 00: Not only did you have the burden, but it was by clearing convincing evidence. [00:17:23] Speaker 00: So when I go and weigh this evidence and go, yours is stronger, theirs is somewhat weaker, that doesn't mean they should stop necessarily, because you've got to do this by clear and convincing. [00:17:33] Speaker 00: Yours has to be somewhat stronger. [00:17:34] Speaker 00: Matter of fact, it's got to be a good bit stronger. [00:17:36] Speaker 00: And ultimately, you got there. [00:17:37] Speaker 01: I'm sorry, Your Honor. [00:17:38] Speaker 01: Not only is yours that to be stronger, mine doesn't have to be as strong. [00:17:41] Speaker 00: That's correct. [00:17:42] Speaker 01: Mine doesn't have to be as strong. [00:17:42] Speaker 01: Isn't that really what the judge was saying? [00:17:45] Speaker 01: Where the burden is clear convincing evidence and then for the patentee to try to hang on to and better should claim they dabble do you, you don't have to have a really strong argument? [00:17:55] Speaker 00: I think that's exactly correct, Your Honor. [00:17:57] Speaker 00: I think that was appropriate for her to do. [00:17:59] Speaker 00: Because that is the burden of proof with this affirmative defense and how it compares. [00:18:03] Speaker 00: I don't think she overstressed that. [00:18:05] Speaker 04: Before your time's up, you might want to switch to the other patent. [00:18:08] Speaker 00: Yes, Your Honor. [00:18:09] Speaker 00: I think you have a juxtaposition in review. [00:18:12] Speaker 00: District Court did exactly what you should have done with Cook, focused on only a couple of things in the Kelly patent case. [00:18:20] Speaker 00: Namely, the Markman hearing, the motion to reconsider the Markman result, and the voluntary dismissal. [00:18:29] Speaker 00: There are a couple of important factors [00:18:31] Speaker 00: in the Kelly case that make that more limited review something this court should reverse. [00:18:35] Speaker 00: Frankly, not remand, but reverse based on the record that's there. [00:18:40] Speaker 00: Although argued to the district court at every stage, the pre-hearing investigation which found that the accused product contained the chemicals was ignored. [00:18:50] Speaker 00: That's an important step in justifying litigation. [00:18:53] Speaker 00: And you understand the two months that the court had already found exceptional and awarded fees for aren't an issue here. [00:18:59] Speaker 00: This is what happened before November 3rd, 2011, from the filing of the suit until the markman hearing. [00:19:06] Speaker 00: And what happened in that period was there was a pre-suit investigation. [00:19:10] Speaker 00: There was an argument based on the plain words of the claims, which do not include the word average, that the presence of a small number or a single, perhaps, of these molecules could affect the change in properties, that the accused products advertising said they were the same as [00:19:29] Speaker 00: or function the same as the products covered by the patent. [00:19:32] Speaker 00: In other words, it's a reasonable course of litigation. [00:19:35] Speaker 00: And what pure fishing did was when the Markman hearing went against it and reconsideration went against it, voluntarily dismissed the case with consent of its opponent, saving us all a lot of money for two reasons. [00:19:49] Speaker 00: That Markman result made it very difficult for pure fishing to proceed with that undefined term average. [00:19:56] Speaker 00: Whether it's the molecular weight or this degree of polymerization, the court would not tell us, despite the request on reconsideration. [00:20:03] Speaker 00: And two, discovery shows sales of the accused products were fairly minimal. [00:20:08] Speaker 00: So why would we make that fight and spend that money? [00:20:10] Speaker 00: And yet the district court agreed with Normark that the fact of doing the right thing, voluntarily dismissing, gave credence to the fact that this was an exceptional case. [00:20:20] Speaker 04: But ultimately, the court said that [00:20:25] Speaker 04: Putting aside the voluntary dismissal, the court said that as to the Kelly claim, that it made a factual finding that Turfishing should have recognized the extreme weakness of the Kelly claim prior to the date that Normark filed its answer. [00:20:39] Speaker 04: That's a lot earlier than the dismissal occurred. [00:20:42] Speaker 04: And there was all the stuff that happened afterward with respect to the Markman hearing, which he found to also be unreasonable conduct. [00:20:49] Speaker 04: So why isn't that factual finding enough to support her conclusion of exceptionality? [00:20:54] Speaker 00: Because I believe it's contradictory of this court's case of what is a proper pre-filing investigation from Q Pharma, from a case like Eon, which we cite in our brief, which is again an unreported district court case, as a lot of these are. [00:21:09] Speaker 00: Pure Fishing did it. [00:21:10] Speaker 00: Pure Fishing found the chemical. [00:21:11] Speaker 00: Pure Fishing found the accused product fit within the claims and proceeded with a reasonable [00:21:18] Speaker 00: I think this is where the District Court, and remember the District Court on its first analysis said, your view of the claim, that one or a few of these molecules might affect that property change, was reasonable up until the Markman hearing. [00:21:31] Speaker 00: On remand, and I do not believe anywhere in the District Court's order, Your Honor, perhaps the Attorney General will come to point it out to you, she pointed to anything that changed to suddenly make it unreasonable. [00:21:41] Speaker 00: Now that's the current standard. [00:21:42] Speaker 00: That wasn't the objectively baseless or subjective bad faith. [00:21:46] Speaker 00: She was looking at, did you have a reasonable argument in your claim construction until my Martman ruling? [00:21:50] Speaker 00: Yes, she said. [00:21:52] Speaker 00: But then she reverses herself on the re-review. [00:21:54] Speaker 04: Right. [00:21:55] Speaker 04: So she said after looking back at it, she said that she believes that the record suggests not only that Pure Fishing's claim construction, for which no reasonable support was ever offered, was objectively baseless, [00:22:08] Speaker 04: but also that her pure fishing should have understood from the outset that the Kelly claim was dependent on that flawed claim construction. [00:22:16] Speaker 04: Again, I don't know how you get around that determination. [00:22:21] Speaker 00: I think simply because, Your Honor, in that record, the flawed claim construction is the district court sees it. [00:22:27] Speaker 00: Certainly she was entitled to make that ruling at Markman and up to us to appeal if we wanted to. [00:22:32] Speaker 00: But prior to that ruling, if you look at the plain language of the claims, [00:22:36] Speaker 00: an extremely long-chain polyhydroxyl molecule can change the physical properties. [00:22:42] Speaker 00: That's what was claimed in that patent. [00:22:43] Speaker 04: Court disagreed at the end of the day. [00:22:50] Speaker 04: You can't just say, well, I put forward a claim construction and I get the right to appeal it. [00:22:54] Speaker 04: If the claim construction is itself objectively baseless from the start, which this court found that it was, then that can be sufficient. [00:23:03] Speaker 00: Found that on a second review when it didn't find it on the first review, Your Honor, and articulated no real reason for what the difference was. [00:23:13] Speaker 00: That, we believe, is an abuse of discretion. [00:23:15] Speaker 00: First time through, looked at that whole period and said that was a reasonable argument up until this point. [00:23:20] Speaker 00: Second time through, said, eh, on second thought, not reasonable. [00:23:23] Speaker 00: I looked at it again. [00:23:25] Speaker 00: We're in the orders articulated why it became unreasonable. [00:23:28] Speaker 04: So, and again, with respect to the factual analysis, your own independent lab, in the best case scenario, found what? [00:23:39] Speaker 00: 3% of the long-chain molecules were present in the increased product. [00:23:44] Speaker 04: But you essentially brought a claim as if all of them were present. [00:23:52] Speaker 04: I mean, you can see that 97% were not present. [00:23:55] Speaker 00: Well, that's correct, John, but nowhere in the... [00:23:58] Speaker 00: Nothing in that pattern would suggest that 100% of the molecules would fall, ever fall within this definition. [00:24:05] Speaker 00: The vast majority of the material you're out there to read claims is always going to be shorter chain molecules. [00:24:09] Speaker 00: It's the presence of a certain number, and that was the argument between the parties at the end of the day. [00:24:15] Speaker 00: Single molecule do a few molecules. [00:24:17] Speaker 00: an average of molecules that show there's enough of them, which is what Normark prevailed on ultimately with the District Court, was you're going to have to have an average, and that average is going to have to show you've got nobody ever thought, including the District Court, that 100% of the molecules in one of those lures would fall into the definite, they're not going to. [00:24:33] Speaker 00: It's not going to be close. [00:24:34] Speaker 00: It doesn't take a lot to do it. [00:24:36] Speaker 00: The argument was, how much? [00:24:38] Speaker 00: And Normark prevailed in getting an undefined average, which is something this Court, in its unreported decision in BIOCS, which we cite in the brief, said, that's pretty important. [00:24:48] Speaker 00: When a court gives you an undefined claim term and you start to struggle with it, it's hard to say you're honest about it. [00:24:54] Speaker 04: That was completely distinguishable because in this particular case, the court made a specific finding that it didn't matter how you calculated the average because if you were operating under an average, you lose. [00:25:12] Speaker 00: I don't think the court reached that conclusion. [00:25:14] Speaker 00: I think the court did reach the conclusion that if you're operating under an average, you're going to have a real hard time. [00:25:18] Speaker 00: We didn't reach the back of it. [00:25:19] Speaker 04: Well, no, that's not specifically said. [00:25:21] Speaker 04: It made absolutely no difference to the strength of your claim as to how you calculate an average, because if you're stuck with an average, you lose. [00:25:30] Speaker 00: And once the word average got in there, what did my client do? [00:25:33] Speaker 00: The word average is not in the claim. [00:25:35] Speaker 00: It was added to the claim on claim destruction by the court. [00:25:38] Speaker 00: Average appears nowhere in the patent. [00:25:41] Speaker 00: When it was read into the patent by the court, pure fishing dismissed it. [00:25:45] Speaker 03: Do you want to say anything about the across the field? [00:25:50] Speaker 03: Your second issue? [00:25:51] Speaker 00: I think that was the Kelly Patton, Your Honor. [00:25:53] Speaker 00: That's what I switched to just then and I see that I've used a tremendous amount. [00:25:58] Speaker 00: But are there any other questions? [00:26:01] Speaker 03: Thank you very much. [00:26:06] Speaker 02: So I want to just reply briefly on the Cook patent issue and try to put a real fine point on it if I could and I really do urge you to look at the record of the briefs [00:26:17] Speaker 02: The argument, the only argument ever made that they had a good faith argument was this May 1993 work was prior conception. [00:26:26] Speaker 02: And there isn't a single fact to support that. [00:26:29] Speaker 02: Mr. Cook testified that May 1993 was not his conception. [00:26:34] Speaker 02: His documents showed that that May 1993 work did not involve stretching. [00:26:41] Speaker 02: He explained that he was holding the line at a constant tension. [00:26:44] Speaker 02: and it is a false statement by Mr. Manos to say that that work involved heat stretching. [00:26:50] Speaker 02: There is no fact on which the judge could reasonably have based a decision that this claim wasn't frivolous and for that reason we ask the court to reverse on the Cook patent claim. [00:27:01] Speaker 02: On the Kelly patent claim, the fundamental problem we have with the entire argument is it's a misstatement of the district court's orders and what happened. [00:27:09] Speaker 02: The first time around, the court engaged in 38 pages of discussion of the Kelly claim and found that the Kelly claim construction of one molecule advanced by pure fishing was objectively baseless. [00:27:23] Speaker 02: So that finding had already been made, and she didn't have to revisit that. [00:27:29] Speaker 02: The reason she didn't grant fees the whole time is because under Brooks Furniture, Second Lake, and she found that before November 3rd, they had a basis for believing that they could have made an argument. [00:27:42] Speaker 02: When it came back to her, the only issue in front of the court was, should I give you additional fees under the new octane fitness standard? [00:27:49] Speaker 02: And to our mind, that was an easy call because [00:27:52] Speaker 02: You've already found objective baselessness. [00:27:55] Speaker 02: That's law of the case. [00:27:56] Speaker 02: It hasn't been appealed. [00:27:58] Speaker 02: And so the court found. [00:27:59] Speaker 02: The amount of our fees is within her discretion. [00:28:02] Speaker 02: The amount of our fees was never debated. [00:28:05] Speaker 02: And so the arguments that you're hearing today, first of all, they weren't presented to the district court on the motion on remand. [00:28:13] Speaker 02: So therefore, they're waived. [00:28:15] Speaker 02: And second of all, it's law of the case that it's objectively baseless. [00:28:20] Speaker 02: The claim was objectively baseless. [00:28:23] Speaker 02: And then the third point, if you do get to the merits, we told them at the start of the case, we use one polymer, it's PVA 117, gets way outside of the range, and we don't infringe, and yet they press forward. [00:28:35] Speaker 02: During the claim construction proceedings, we had an expert explain that anyone of ordinary skill would understand when you use molecular weight and the degree of polymerization numbers, that's an average. [00:28:46] Speaker 02: It has to be. [00:28:47] Speaker 02: Otherwise, it has no meaning. [00:28:49] Speaker 02: The lower patent doesn't make any sense unless it's an average, as explained in our briefing. [00:28:54] Speaker 02: And the distinction of Inouye doesn't make any sense unless it's an average. [00:28:58] Speaker 02: So thank you, Your Honor. [00:28:59] Speaker 02: We do respectfully request that you reverse the Cooke claim and send it back to the district court and then affirm the finding on the Kelly claim. [00:29:07] Speaker 03: Thank you. [00:29:07] Speaker 03: OK. [00:29:08] Speaker 03: Thank you, Mr. Vint. [00:29:10] Speaker 03: Mr. Vint, you get the last word. [00:29:11] Speaker 03: Thank you, Your Honor. [00:29:12] Speaker 00: Thank you. [00:29:15] Speaker 00: Normark also wants it both ways in this case. [00:29:17] Speaker 00: to punish pure fishing for voluntarily dismissing the Kelly Patent, but to punish fishing for not voluntarily dismissing Cook after his deposition. [00:29:25] Speaker 00: That can't be the way Section 285 exceptionality works. [00:29:28] Speaker 00: To say that the May 1993 document does not involve heat stretching is false. [00:29:36] Speaker 00: It does involve the process of heat stretching through a machine the way defined in the pattern. [00:29:42] Speaker 00: But it involved a braided fishing line with weights on each end, [00:29:46] Speaker 00: being heated with the weights hanging and stretching it, and some change in properties was observed. [00:29:52] Speaker 00: Which is to say, pure fishing was experimenting in the area long before it met with DSM. [00:29:58] Speaker 00: Beyond that, no, it's got no further evidence. [00:30:01] Speaker 00: Admittedly, there was no measurement of the change in tenacity, which is ultimately what is claimed to have. [00:30:07] Speaker 00: Parties know that. [00:30:08] Speaker 00: But to say it wasn't stretched and it wasn't heated is false. [00:30:11] Speaker 00: And the records, you can look at the documents themselves and find records [00:30:14] Speaker 00: and see what happened in the resulting memo that Mr. Cook sent to Mr. Foote. [00:30:20] Speaker 00: Mr. Foote and Mr. Van Gork believed that the SM did not conceive the invention and Cook did. [00:30:26] Speaker 00: Cook claimed at times that he conceived the invention and certainly believed he conceived something. [00:30:32] Speaker 00: This is a tacit conflict of evidence. [00:30:35] Speaker 00: And finally on the Kelly case, [00:30:37] Speaker 00: It cannot be law of the case when there's been an intervening change and the order was restricted to a particular type. [00:30:42] Speaker 00: There was a new review. [00:30:43] Speaker 00: That finding can't be the law of the case. [00:30:45] Speaker 04: The intervening change argument you're making is octane, right? [00:30:49] Speaker 04: Right. [00:30:49] Speaker 04: But octane didn't change the standard for making a finding of objective baselessness. [00:30:57] Speaker 04: And the only thing that they're saying is law of the case is the factual finding of objective baselessness. [00:31:03] Speaker 04: Right? [00:31:04] Speaker 00: And that finding was for a period of time that occurred from November 3rd, 2011 on. [00:31:09] Speaker 00: The court in that first order didn't say it was objectively baseless from the beginning. [00:31:13] Speaker 00: Indeed, the court pointed out both parties were struggling as the defendant came forward with an all-polymers theory that was ultimately scrapped by the defendant. [00:31:23] Speaker 04: So you can see that law of the case is that it was objectively baseless for some period of time? [00:31:29] Speaker 00: Yes, Your Honor. [00:31:29] Speaker 00: From November 3rd, 2011, we can't take any other position. [00:31:32] Speaker 00: The court made the finding. [00:31:33] Speaker 00: We did not appeal. [00:31:36] Speaker 00: from November 3rd, 2011 to January of 2013 when the case was dismissed. [00:31:40] Speaker 00: There was a finding of objective baselessness. [00:31:45] Speaker 00: But prior to that time, there was not one that is the law of the case. [00:31:48] Speaker 00: And that's the issue where the district court flip-flopped without articulating a reason for you, thereby abusing its discretion. [00:31:54] Speaker 00: And in the record, there's not a reason to change. [00:31:59] Speaker 03: Thank you very much. [00:32:00] Speaker 03: Thank you. [00:32:00] Speaker 03: Thank you both. [00:32:01] Speaker 03: The case is taken under submission.