[00:00:01] Speaker 03:
Good morning.

[00:00:02] Speaker 03:
May it please the court.

[00:00:04] Speaker 03:
Good morning, Judge Clevenger, Judge Schall.

[00:00:06] Speaker 03:
Good morning again, Judge Prost.

[00:00:10] Speaker 03:
The posture that this case comes to you is dismissal for lack of subject matter jurisdiction, lack of standing.

[00:00:18] Speaker 03:
The scene, if I may set it, is that SPC had been attempting for almost five years to exercise its rights under an exclusive field of use license agreement

[00:00:32] Speaker 03:
to sue for infringement, and the licensor refused to cooperate all of that time because, as it said in its response to the licensee initially, that it needed to protect its political interests.

[00:00:50] Speaker 04:
Okay, can we just get to the heart of the issue, at least for me, which is where in the records did you preserve

[00:00:58] Speaker 04:
the argument that you're raising here, this should have been interpreted under Quebec law and not under US law.

[00:01:05] Speaker 03:
The argument with respect to the interpretation under Quebec and Canadian law was discussed in connection with the oppositions to the motions to dismiss, in particular, in Genio's motion to dismiss the cross-claim

[00:01:28] Speaker 03:
where it was discussed.

[00:01:30] Speaker 05:
Can you point to the record?

[00:01:31] Speaker 05:
I mean, like, what did you give us in the appendix?

[00:01:37] Speaker 05:
The plate document?

[00:01:40] Speaker 05:
What are you talking about?

[00:01:48] Speaker 03:
Well, for one thing, Your Honor, the license agreement was before the court.

[00:01:54] Speaker 05:
What was the question that the chief judge asked you?

[00:01:59] Speaker 05:
Yes.

[00:02:00] Speaker 05:
You're making an argument here, a very simple argument.

[00:02:02] Speaker 05:
So I got this contract, and the contract says it's got a forum selection clause in it that says all cases have to be litigated in Canada, right?

[00:02:13] Speaker 05:
Yes.

[00:02:13] Speaker 05:
And Canadian law will apply.

[00:02:15] Speaker 05:
And both of you stood up in front of the district court judge and said, please don't send this case back to Canada.

[00:02:22] Speaker 05:
It will jeopardize our interest.

[00:02:23] Speaker 05:
Please decide it today here.

[00:02:26] Speaker 05:
Right?

[00:02:27] Speaker 05:
Well, you said that, right?

[00:02:28] Speaker 05:
I did, Your Honor.

[00:02:29] Speaker 05:
OK, let me finish.

[00:02:31] Speaker 05:
So everybody agrees that insofar as the forum, there is a waiver of the requirement in the contract.

[00:02:39] Speaker 05:
You've got to go back to Canada and sit in front of a Canadian judge, right?

[00:02:44] Speaker 03:
SBC requested that.

[00:02:45] Speaker 05:
So the judge went on and decided the case here on the basis, not of Canadian law, but applying American law, right?

[00:02:52] Speaker 05:
And your argument is, judge, well, judge should have applied Canadian law.

[00:02:58] Speaker 05:
Chief judge asked you, where did you make that argument?

[00:03:01] Speaker 05:
Where did you tell the judge you're supposed to use Canadian law?

[00:03:06] Speaker 05:
And I asked you, where in the record?

[00:03:10] Speaker 05:
And that question is still on the table.

[00:03:12] Speaker 05:
So I got all the documents.

[00:03:14] Speaker 03:
Your honor, if you will allow me, I agree with you.

[00:03:19] Speaker 03:
You'll take a look at the transcript.

[00:03:21] Speaker 03:
I did not say to the district court judge, if you decide it here, you should decide it under Canadian law.

[00:03:29] Speaker 03:
The reason for that was because we had argued vociferously that discovery would be necessary in order to properly construe the contract.

[00:03:42] Speaker 05:
in order for the determination of whether this was... Well, that hinges on whether or not you're going to do it under Canadian law, right?

[00:03:50] Speaker 05:
Your discovery issue is tied to your argument that Canadian law should have been applied.

[00:03:56] Speaker 05:
And you need a discovery in order to pursue Canadian law as it applies to this case.

[00:04:01] Speaker 03:
Well, one element of the discovery argument does not hinge on Canadian law, and that has to do with whether or not the activity

[00:04:09] Speaker 03:
that the plaintiff sought to bring suit against was within the field of use.

[00:04:14] Speaker 03:
That would not be a Canadian law determination.

[00:04:17] Speaker 03:
That would be determined by whether it was illegal.

[00:04:21] Speaker 05:
What I got to do was whether or not you're going to use Canadian law.

[00:04:27] Speaker 03:
That doesn't.

[00:04:28] Speaker 03:
I'm making the point that that would have been the determination under Florida law.

[00:04:32] Speaker 05:
Right.

[00:04:34] Speaker 05:
Right.

[00:04:36] Speaker 05:
You're arguing under Florida law.

[00:04:39] Speaker 05:
I didn't hear you arguing that you disagreed with the district court's decision.

[00:04:43] Speaker 05:
Your sole appeal here isn't it pitched on the fact that Canadian law was not applied by the district court judge.

[00:04:49] Speaker 03:
There are two points on appeal.

[00:04:51] Speaker 03:
That is one of them.

[00:04:53] Speaker 03:
And the second one is that the district court judge should have allowed discovery in order so that we could demonstrate both that it was within our field of use and therefore we had standing.

[00:05:04] Speaker 03:
And also that the licensor did not comply with the license agreement and behaved in such a way as to make this written consent requirement waived.

[00:05:16] Speaker 03:
So there are two elements of that, your honor.

[00:05:19] Speaker 05:
And, and, and when we walked in... We still haven't really gotten, for me at least, over the hurdle list of why it was that this district court judge erred by not applying Canadian law.

[00:05:32] Speaker 04:
Or the initial question still being on the table, which is where you raised that below.

[00:05:38] Speaker 03:
Your honor, I reserved some time for rebuttal.

[00:05:42] Speaker 03:
There isn't the lights here.

[00:05:45] Speaker 03:
I would like to address that in terms of pointing out as to where in the record on rebuttal.

[00:05:54] Speaker 05:
But let me just raise one more thing for you, which for me is another dagger struck into the heart of your case.

[00:06:01] Speaker 00:
Yes.

[00:06:01] Speaker 05:
This issue we're talking about, about which law should be applied, is not an issue of patent law.

[00:06:07] Speaker 05:
It's an issue that's governed by regional circuit law.

[00:06:10] Speaker 05:
You're coming out of the 11th Circuit.

[00:06:13] Speaker 05:
The 11th Circuit is held precedentially that in a case such as this, where there's an allegation that foreign law, I'm reading this because your adversary didn't find this case either.

[00:06:23] Speaker 05:
We do our own research.

[00:06:27] Speaker 05:
The 11th Circuit holds that when you're arguing that foreign law has

[00:06:30] Speaker 05:
apply, you have an obligation to clearly present that argument to the district court judge, and if you don't, it's waived and local law applies.

[00:06:39] Speaker 05:
The case is Mutual Service Insurance Company against FRIP 358, Fed Third 1312.

[00:06:46] Speaker 05:
Thank you.

[00:06:52] Speaker 05:
It seems to me that the district court judge here

[00:06:55] Speaker 05:
who knows that they're governed by 11th Circuit law on procedural issues, non-patent issues, the judge says, well, nobody's arguing Canadian law to me.

[00:07:07] Speaker 05:
In fact, at the hearing, you even suggested to the judge that if the case went off in Canada, it would be decided differently, right?

[00:07:16] Speaker 03:
That the case would be decided differently?

[00:07:18] Speaker 05:
You said your litigation may determine we have standing if you go in Quebec.

[00:07:23] Speaker 05:
You said that.

[00:07:23] Speaker 05:
That's at page 14.

[00:07:25] Speaker 05:
It is true.

[00:07:29] Speaker 05:
But you didn't say the judge applied Canadian law.

[00:07:33] Speaker 03:
At the hearing, you're absolutely right, Your Honor.

[00:07:36] Speaker 05:
And that's what they call showtime?

[00:07:39] Speaker 05:
Yes.

[00:07:40] Speaker 05:
A hearing on a motion to knock your case out, not an interpretation of a contract, is showtime.

[00:07:49] Speaker 05:
Yes, Your Honor.

[00:07:49] Speaker 05:
And in the 11th Circuit, if you don't say up,

[00:07:53] Speaker 05:
And you know, you don't have to say up in the case that I just cited to you, the party that was arguing in favor of foreign law had even in pretrial mode, pretrial proceedings in front of the judge had said foreign law applies.

[00:08:07] Speaker 05:
That still wasn't enough because the district court judge had not been given the details.

[00:08:16] Speaker 03:
Yes, your honor.

[00:08:17] Speaker 03:
I'll only note that on page three of the transcript, which is JA 1423,

[00:08:23] Speaker 03:
At the very beginning of the hearing, the court says, quote, well, really, it seems to me pretty clear that this case needs to go to Canada to resolve the issues between the plaintiffs.

[00:08:33] Speaker 05:
And then both of you jumped up and said, oh, please don't send it to Canada.

[00:08:39] Speaker 05:
You made the argument that your side would be jeopardized, and you each made the argument that your adversary would be jeopardized.

[00:08:46] Speaker 05:
The most generous of you.

[00:08:49] Speaker 05:
That was in response to what the judge said.

[00:08:53] Speaker 05:
So assume for purposes of argument that we don't accept your argument that the judge erred in applying domestic law as opposed to Canada law.

[00:09:02] Speaker 05:
What's left of your appeal?

[00:09:05] Speaker 03:
What's left of the appeal, Your Honor, is that if it is going to be determined, the 11th Circuit in Florida, the 11th Circuit requires for a factual attack on subject matter jurisdiction, that there be discovery so that SBC can demonstrate

[00:09:23] Speaker 03:
before the district court judge, before the district court.

[00:09:26] Speaker 05:
I mean, the contract says you can't sue unless you have written consent from the licensee, licensor, right?

[00:09:36] Speaker 05:
You do not have written consent.

[00:09:40] Speaker 03:
That is true.

[00:09:41] Speaker 05:
The district court construed the contract to require the written consent before you can bring the lawsuit.

[00:09:47] Speaker 05:
There was a debate below about what the contract meant under our laws.

[00:09:52] Speaker 05:
You have not appealed the district court's ruling on what the contract meant on American law.

[00:09:58] Speaker 03:
That is true.

[00:09:59] Speaker 05:
So you're stuck with a holding by the district court that says under American law, written consent to sue is required.

[00:10:08] Speaker 05:
You do not have written consent.

[00:10:11] Speaker 05:
What discovery can possibly save you?

[00:10:18] Speaker 05:
Well, what are you going to get in discovery to overcome the fact that you don't have written consent?

[00:10:25] Speaker 05:
Well, if, and notwithstanding... I mean, I'm trying to help you with this, because if you went back and pressed the discovery, I'm a little worried about it really.

[00:10:35] Speaker 05:
I mean, what can you possibly get out of discovery that will upset the interpretation of the contract, which you have not challenged?

[00:10:48] Speaker 05:
that you don't have written consent.

[00:10:51] Speaker 03:
Your honor, notwithstanding the issue that you raised with respect to Canadian law, Ingenio did not dispute that Canadian law would govern the interpretation of the license agreement.

[00:11:06] Speaker 03:
I know you've said you both got up and said you can decide it.

[00:11:09] Speaker 03:
The both who are here are myself and Mr. Milgrath representing the defendants.

[00:11:15] Speaker 03:
Ingenio is not here.

[00:11:17] Speaker 03:
And Ingenio did not dispute that Canadian law, that Quebec civil law, would govern the interpretation of the license agreement.

[00:11:26] Speaker 03:
So if there were discovery, then that discovery were... I don't understand.

[00:11:31] Speaker 04:
I guess maybe because I'm still waiting for an answer to my first question, which is where on the record did you make the argument to the district court judge that Canadian law applies and this is how Canadian law ought to be applied for the results in my case?

[00:11:47] Speaker 03:
And the argument is... Well, you don't represent Ingenio anyway.

[00:11:56] Speaker 03:
I don't represent Ingenio.

[00:11:58] Speaker 03:
I don't, Your Honor.

[00:12:00] Speaker 03:
But there was no dispute below.

[00:12:02] Speaker 03:
Ingenio asked that it be sent to Canada so that it could be interpreted under Canadian law.

[00:12:08] Speaker 03:
And we said that it could be interpreted just as easily under Canadian law here.

[00:12:14] Speaker 05:
I mean, Chief Judge asked a question, said, where did you, you meaning sweepstakes, meaning you, Mr. Roth, have not chose Smith on behalf of somebody else?

[00:12:27] Speaker 05:
She asked you, where did you preserve this argument?

[00:12:29] Speaker 05:
I interrupted, I'm very sorry, because I just said, oh my, why is he making an argument based on Ingenio?

[00:12:34] Speaker 05:
Ingenio is not even in the courtroom.

[00:12:38] Speaker 05:
So maybe you can answer her question now.

[00:12:39] Speaker 05:
I'm sorry I interrupted you.

[00:12:42] Speaker 03:
Your Honor.

[00:12:43] Speaker 03:
Standing right here right now, I do not have an exact page site for you.

[00:12:49] Speaker 03:
I can provide you with that in a moment.

[00:12:52] Speaker 05:
Sorry?

[00:12:53] Speaker 05:
Were you on behalf of Sweepstakes preserved the argument?

[00:12:58] Speaker 05:
You told the district court judge you've got to apply Canadian law?

[00:13:02] Speaker 03:
Not in the hearing, your honor.

[00:13:03] Speaker 03:
It's not in the transcripts of the hearing.

[00:13:05] Speaker 03:
I did not say that in the hearing.

[00:13:07] Speaker 05:
The argument- The hall?

[00:13:09] Speaker 05:
I mean at the club afterwards?

[00:13:10] Speaker 05:
Where did you say this to the judge?

[00:13:13] Speaker 03:
Your Honor, the argument was all relating to venue.

[00:13:18] Speaker 03:
The venue provision of the agreement, which also contains the application of the foreign law.

[00:13:25] Speaker 05:
It's all in the same clause.

[00:13:27] Speaker 05:
We know that.

[00:13:28] Speaker 03:
We've read the record.

[00:13:30] Speaker 03:
I understand that.

[00:13:31] Speaker 03:
It was in front of the judge.

[00:13:32] Speaker 03:
No one expected, especially considering what the court announced at the very beginning of the hearing, no one expected.

[00:13:39] Speaker 05:
Well, partly because you hadn't done the research on the law, sir.

[00:13:44] Speaker 05:
I decided you the case that says to the judge, go ahead and apply local law unless counsel has every jot and tittle given you the foreign law and told you how to apply it.

[00:13:55] Speaker 05:
I mean, you wouldn't want to go back and fault this judge for following 11th Circuit law, would you?

[00:14:00] Speaker 03:
Your Honor, I would not.

[00:14:02] Speaker 03:
I would not.

[00:14:04] Speaker 03:
And 44.1 has no specific requirements with respect to how notice needs to be given.

[00:14:12] Speaker 03:
We had not, and even my learned colleague had not seen that case.

[00:14:18] Speaker 03:
We did a lot of research on the issue.

[00:14:20] Speaker 04:
Well, except, okay, so let's just look at the rule, 44.1.

[00:14:23] Speaker 04:
I mean, it says they must party who intends to raise an issue about foreign countries law must give notice by a fleeting or other writing.

[00:14:31] Speaker 04:
Right.

[00:14:31] Speaker 04:
So I guess my question remains the same.

[00:14:33] Speaker 04:
Do you have fleeting or other writing that you can point to in the record that gave this court notice that she should apply

[00:14:40] Speaker 04:
Canadian law.

[00:14:42] Speaker 03:
And the other writing that we're referring to, Your Honor, is the contract with the same exact clause where the venue provision is, is also the provision with regard to implication of Canadian law and the cross claimant admittedly is not here, was not saying apply Florida law and we were not saying apply

[00:15:09] Speaker 03:
Florida law specifically, we were saying this court can construe the agreement, certainly.

[00:15:13] Speaker 03:
We wanted venue there.

[00:15:15] Speaker 05:
Given the court preliminary writings coming up to this hearing, you've filed written paper with the court.

[00:15:24] Speaker 05:
And not a single word in the written paper suggests foreign law should be applied.

[00:15:29] Speaker 05:
And to the contrary, on every legal issue we're talking about, you were citing federal circuit cases, United States law cases, right?

[00:15:38] Speaker 02:
Yes.

[00:15:39] Speaker 05:
So all the writings to which the chief judge has referred to under the rule that you supplied as an officer of the court indicated application of domestic law, correct?

[00:15:55] Speaker 02:
Yes.

[00:15:56] Speaker 05:
And so this judge is supposed to look at the contract and say, notwithstanding all of the writings that you have given me pursuant to the rules, say, apply American law, I should still apply Canadian law.

[00:16:09] Speaker 03:
Your Honor, we should at least know what law is being applied.

[00:16:16] Speaker 05:
And we should at least... And the law in the circuit is that unless you're very, very clear that the foreign law applies and you cite the foreign law in its substance, domestic law applies.

[00:16:28] Speaker 03:
And Your Honor, again, I go back to the issue that it was understood application of the agreement, including

[00:16:37] Speaker 03:
the provision that requires foreign law be applied was not disputed as between SPC and Ingenio where the dispute really was taking place.

[00:16:50] Speaker 04:
I'm sorry, Your Honor.

[00:16:53] Speaker 04:
No, that's OK.

[00:16:53] Speaker 04:
You've exhausted your rebuttal time and beyond that.

[00:16:57] Speaker 04:
We'll give you two minutes for rebuttal.

[00:17:01] Speaker 04:
Mr. Milbrough?

[00:17:03] Speaker 01:
May it please the court, Steve Milbrough, Orlando, on behalf of the sentence.

[00:17:09] Speaker 01:
Mr. Rothman did not say at any point in the record that Quebec law was any different from Florida law on any sensitive issue regarding the exclusive license, a claimed exclusive license.

[00:17:24] Speaker 01:
And therefore there was no reason why the court should even have a concern about Canadian law supplying the rule of decision.

[00:17:37] Speaker 01:
with respect to that license.

[00:17:38] Speaker 01:
This license is not ambiguous.

[00:17:40] Speaker 01:
More importantly, Senator Rothman never argued that the license agreement was ambiguous.

[00:17:46] Speaker 05:
Well, the license is also not ambiguous about which law is supposed to be applied.

[00:17:51] Speaker 05:
All right, the license is unambiguous about where you litigate and whose law you use.

[00:17:57] Speaker 01:
So there is no reason why the court would even worry about looking to Canadian law

[00:18:06] Speaker 01:
for any type of rule of construction because the contract is plain and unambiguous on its face, and Federal Circuit law really is a governing law with respect to standing.

[00:18:18] Speaker 05:
You have repeatedly said that Federal Circuit... Federal law is one thing, Canadian law is another, right?

[00:18:27] Speaker 05:
Now, are you, do you disagree with the Canadian law that's being summoned up here by your adversary?

[00:18:33] Speaker 05:
I'm looking at page 13 in the blue brief.

[00:18:36] Speaker 05:
Did you bring the blue brief?

[00:18:39] Speaker 01:
That was the first time that he summoned up.

[00:18:41] Speaker 05:
Did you bring the blue brief?

[00:18:43] Speaker 05:
Do you have the blue brief?

[00:18:44] Speaker 01:
No, I don't have the blue brief, but I've read it.

[00:18:46] Speaker 01:
I've read it.

[00:18:47] Speaker 01:
Wait a second.

[00:18:47] Speaker 05:
Are you telling me that you come to argument in this court and you do not bring the brief?

[00:18:52] Speaker 01:
Well, I've got it somewhere in my materials, but.

[00:18:54] Speaker 05:
Where is it?

[00:18:55] Speaker 05:
Is it on the table?

[00:18:56] Speaker 01:
It probably is, Your Honor, but my point is... Okay, well let me educate you.

[00:19:01] Speaker 01:
Yes.

[00:19:01] Speaker 05:
Right?

[00:19:02] Speaker 05:
Your adversary says in his blue brief, which I think you really should bring to argument and have memorized, he says up in Canada, they don't really care about the language of the contract.

[00:19:15] Speaker 05:
The common intention of the parties, rather than adherence to the literal meaning of the words, governs up here in Canada.

[00:19:25] Speaker 05:
In Canada, what's left of your plain man area?

[00:19:29] Speaker 01:
Judge, number one, Mr. Roth.

[00:19:31] Speaker 05:
You get the impression that I'm not very happy with the way you all briefed this case and what you presented to us.

[00:19:39] Speaker 05:
You got that impression?

[00:19:40] Speaker 01:
I'm getting that impression.

[00:19:42] Speaker 01:
I didn't write the book.

[00:19:43] Speaker 05:
Right.

[00:19:44] Speaker 05:
So, you started off by saying the contract unambiguously is in your favor.

[00:19:51] Speaker 01:
And I think the federal circuit case law on this,

[00:19:54] Speaker 01:
is controlling.

[00:19:55] Speaker 01:
You've never suggested that we're going to let some other jurisdiction's law be imported into an unambiguous license.

[00:20:05] Speaker 05:
Can you cite me a case in which we have held that a strict foreign law choice of law provision cannot apply?

[00:20:15] Speaker 05:
That federal law overrides the choice of law?

[00:20:19] Speaker 05:
Can you cite me any case?

[00:20:21] Speaker 05:
I mean, I've studied them.

[00:20:22] Speaker 01:
No, not that specifically says that, but I can cite you many cases in which you have said that this is a standing as a federal question.

[00:20:32] Speaker 02:
Of course it is.

[00:20:32] Speaker 01:
Federal circuit law applies.

[00:20:35] Speaker 01:
Therefore, under federal circuit law, and I have cited these cases.

[00:20:38] Speaker 05:
I was asking you to give me the case in which that is being said where you have a choice of law provision that says notwithstanding the foregoing,

[00:20:48] Speaker 05:
notwithstanding the law, which is applied domestic law, apply foreign law.

[00:20:55] Speaker 05:
And you cannot find that case.

[00:20:57] Speaker 01:
There is no federal circuit case that says what you just said.

[00:21:00] Speaker 05:
But there is plenty of federal circuit cases that says what you said.

[00:21:03] Speaker 01:
There is plenty of federal circuit cases that says that the question of standing fundamentally is federal.

[00:21:14] Speaker 01:
Under the federal circuit case law, you would not look

[00:21:18] Speaker 01:
to some other jurisdiction's law, even if the agreement says it governs, governs, you would not look to that law.

[00:21:25] Speaker 05:
That's not even before us.

[00:21:26] Speaker 05:
If this district court judge had, for example, if your adversary had properly presented Canadian law and the district court judge had applied Canadian law to a standing motion, we would then have the argument you're making now that that was impermissible, that a choice of law provision cannot override domestic law.

[00:21:47] Speaker 05:
But we don't have that issue.

[00:21:49] Speaker 05:
Judge, we... And I just stopped you because you started off to say the contract unambiguously was in your favor.

[00:21:56] Speaker 05:
And on the choice of law provision, it's not.

[00:21:59] Speaker 01:
Well, respectfully... Do you agree with me on that?

[00:22:02] Speaker 01:
No, I don't agree that his law... I don't agree that he has established that Canadian law is going to allow the contract to be supplanted by the unwritten intent.

[00:22:15] Speaker 01:
I don't read that

[00:22:16] Speaker 01:
that law that way.

[00:22:20] Speaker 05:
Can you tell me which section of the civil code we're talking about?

[00:22:24] Speaker 01:
All of those sections that he blocked.

[00:22:26] Speaker 05:
I'm asking you for the specific section you're now challenging.

[00:22:29] Speaker 01:
I'm saying all of those sections are there.

[00:22:32] Speaker 05:
Can you give me a number?

[00:22:34] Speaker 05:
Were you just talking off the top of your head now?

[00:22:37] Speaker 01:
I didn't memorize the section, Judge, but every portion of what he blocked quoted in his brief

[00:22:44] Speaker 01:
was never brought to the attention of the trial court.

[00:22:47] Speaker 01:
And all of those sections are there.

[00:22:49] Speaker 05:
I wasn't suggesting it was.

[00:22:50] Speaker 05:
I was simply responding to your bold-faced allegation that the contract was unambiguous about applying American law.

[00:23:01] Speaker 01:
Well, they used the English language in Quebec also.

[00:23:05] Speaker 01:
And subject to is an adverb.

[00:23:09] Speaker 01:
Subject to modifies all those provisions in the

[00:23:13] Speaker 01:
in that clause.

[00:23:15] Speaker 01:
Therefore, under any interpretation using the English language, the licensor had the right to say no, whether Mr. Rothman's client liked it or not.

[00:23:29] Speaker 01:
And there's no way that he can use Canadian law, which is there as an aid of construction of the agreement, to get

[00:23:40] Speaker 01:
a different result because you don't resort to an aid of construction unless there's some reason to question the intent of the parties as expressed in the contract.

[00:23:52] Speaker 02:
Is that the case under Canadian law too?

[00:23:55] Speaker 02:
I'm sorry?

[00:23:55] Speaker 02:
Is that the case under Canadian law too?

[00:23:58] Speaker 01:
I read the passage that he blocked quotes as there for the purpose of construing agreements where the intent of the parties is in doubt.

[00:24:09] Speaker 01:
You can't be in doubt as to the English language interpretation on that agreement.

[00:24:15] Speaker 04:
I don't understand.

[00:24:16] Speaker 04:
I mean, irrespective of whether you're right or wrong on the ultimate issue, Article 1425, which he cites as the common intention of the parties rather than adherence to the literal meaning of the words, shall be sought.

[00:24:31] Speaker 04:
That suggests to me that even if there's

[00:24:34] Speaker 04:
the language is clear, the literal meaning is clear, you still look to the intention of the public.

[00:24:41] Speaker 01:
I don't think you should assume that unless he could point us to a Canadian court decision, which he has not, that says we will not apply the English language to a clear unambiguous contract and we will instead allow someone to import into that unambiguous contract an alleged intent

[00:24:59] Speaker 01:
that is non-expressed.

[00:25:00] Speaker 04:
Do you think any of this really matters to our identification of the case?

[00:25:05] Speaker 01:
It doesn't for several reasons, but let me point you to page 1250 of the Joint Appendix.

[00:25:09] Speaker 01:
Very important.

[00:25:11] Speaker 01:
Look at that page 1250.

[00:25:12] Speaker 01:
You will see that Mr. Rothman only did not cite Canadian law, but he refers to Florida law in a fair reading of that passage.

[00:25:25] Speaker 01:
First, he says the law to be applied is Florida law.

[00:25:29] Speaker 01:
One shouldn't have to look beyond that.

[00:25:32] Speaker 01:
Then he says the standing issue raises several questions.

[00:25:37] Speaker 01:
None of which has anything to do with Quebec law.

[00:25:40] Speaker 01:
Well, Judge, he doesn't say that Quebec law in that passage... I don't disagree with you.

[00:25:52] Speaker 05:
And that's part and parcel of what I was saying.

[00:25:54] Speaker 05:
Your adversary was that

[00:25:56] Speaker 05:
all of the suggestions, if you would.

[00:25:59] Speaker 05:
I mean, when you're in front of a district court judge, you're talking.

[00:26:02] Speaker 05:
And all of the talk that went on led the judge to believe that domestic law would be applied, that foreign law didn't have any application here.

[00:26:11] Speaker 01:
Well, and he specifically looked at the title, the law would be applied as Florida law.

[00:26:16] Speaker 01:
I'm sorry, but I don't see how I can be faulted, or particularly this district judge, who is very able judge, how she can be faulted,

[00:26:26] Speaker 01:
for accepting that Florida law is the law of the forum when he says it.

[00:26:31] Speaker 01:
So everyone in that room understood we were talking about a specific grant to a purported exclusive licensee applying federal circuit precedent.

[00:26:45] Speaker 01:
And there had to be language in that grant that gave the patent licensee

[00:26:53] Speaker 01:
the right to exclude others.

[00:26:55] Speaker 01:
It's clear that there is no such grant.

[00:26:57] Speaker 04:
Can I ask you a process question?

[00:26:59] Speaker 04:
My understanding from reading this is that there's been a new case, a new suit filed?

[00:27:04] Speaker 01:
Yes.

[00:27:06] Speaker 04:
Bringing in the right parties where standing is not an issue, we're not in dispute?

[00:27:09] Speaker 01:
That's because SPC bought the patent back.

[00:27:13] Speaker 04:
Okay.

[00:27:13] Speaker 04:
And what is the status of that?

[00:27:15] Speaker 01:
That case was stayed yesterday, Your Honor, pending the outcome of this appeal.

[00:27:21] Speaker 01:
It was stayed by the district court, Southern District Court, and it was stayed pending the outcome of this appeal to determine whether a case would be moved in Middle District of Florida.

[00:27:33] Speaker 01:
And in the meantime, we filed covered business method petitions as well.

[00:27:37] Speaker 05:
And so, there probably would be... That's just a copy of this one that was another party.

[00:27:43] Speaker 05:
What's the nature of this?

[00:27:45] Speaker 01:
Well, Ingenio was not a party in that case.

[00:27:47] Speaker 01:
Ingenio was bought out, and so the only parties are STC as a plaintiff.

[00:27:52] Speaker 01:
And most of my clients in this case are parties in that case.

[00:28:01] Speaker 01:
But now we don't have the issue of standing anymore, and we can proceed forward.

[00:28:07] Speaker 01:
Now, you asked us, or asked Mr. Rothen, whether

[00:28:15] Speaker 01:
it would make a difference under Canadian law, which he didn't cite to the court.

[00:28:22] Speaker 01:
And I would suggest to you judge that it would not because there has to be standing under federal precedent, federal circuit precedent at the time suit is filed.

[00:28:33] Speaker 01:
And had he, had the Florida case been stayed and had he gone back to Canada or convinced some Canadian judge that there was fraud

[00:28:45] Speaker 05:
or deception of any kind on the part of Ingenio, or that in some way they had waived the... That's the nature of his... I think his theory is that the course of conduct is such, and taking into all the allegations in his favor, that if a Canadian judge heard this, the Canadian judge would say that course of conduct leads to a waiver of the requirement for written permission to bring the lawsuit.

[00:29:13] Speaker 01:
And if that occurred, Judge, what I'm saying is he should have done that before because that doesn't enable him to go back in time retroactively and create standing that didn't occur at the time suit was filed.

[00:29:26] Speaker 01:
And standing has to be a judge at the point the litigation commenced.

[00:29:30] Speaker 01:
Now we have many cited many cases to that effect in our brief.

[00:29:34] Speaker 01:
And so even if one assumes that this jurisdictional discovery had gone forward, since he clearly waived Quebec as a venue

[00:29:43] Speaker 01:
He would not have been able to uncover any facts that would enable him retroactively.

[00:29:49] Speaker 05:
Well, I mean, we're unsure about what would actually happen, sir, if the foreign law had been correctly pled and the district court judge rolled up her sleeves and said, whoops, this is all new to me.

[00:30:02] Speaker 05:
I'm going to have to adjudicate this case under foreign law.

[00:30:07] Speaker 05:
I don't know what would happen to me.

[00:30:09] Speaker 05:
And I assume she then sits right there and says, okay,

[00:30:13] Speaker 05:
I take all of your course of conduct stuff, arguing in his favor and therefore there's a waiver of the requirement to have consent to sue written writing and therefore this suit goes forward.

[00:30:28] Speaker 01:
I think a fair inference from her numerous remarks on the record is that she would have punted and sent the case to Quebec.

[00:30:38] Speaker 01:
I don't think Judge Conway would have accepted

[00:30:41] Speaker 05:
Well, but I mean, that you don't know.

[00:30:44] Speaker 05:
I mean, if my hypothetical I just gave you was unfair inference going in the other direction, because the judge would have said, holy moly, I'm not going to mess with Canadian law, ship it back, then what you were saying might have some.

[00:30:57] Speaker 01:
She did say that at least four times.

[00:30:59] Speaker 05:
I have a judge sitting down there in Florida that said, life's pretty dull down here.

[00:31:03] Speaker 05:
I got a lot of drug cases and I got a lot of junk on my docket and the chance to learn and apply some Canadian law might be pumped.

[00:31:10] Speaker 01:
But under your own precedent, Your Honor, even if you were to assume that the judge had let jurisdictional discovery proceed forward, there is no way that that jurisdictional discovery would lead to the conclusion that there was standing at the time the lawsuit was commenced.

[00:31:34] Speaker 01:
So we suggest no amount of discovery would have made any difference with respect to my clients.

[00:31:40] Speaker 01:
made a difference as to Ingenio.

[00:31:43] Speaker 01:
And remember, he had a cross claim against Ingenio, which he has now settled.

[00:31:49] Speaker 01:
So we have no idea how that issue would have been resolved.

[00:31:54] Speaker 01:
But as to my clients, there would have been no standing at the time the suit commenced, period, even if under some version of the facts applicable under Canada, there was a waiver of the written consent.

[00:32:10] Speaker 04:
Thank you.

[00:32:10] Speaker 01:
Thank you.

[00:32:22] Speaker 03:
Your Honor, I'm going to gird my lines and not waver a bottle.

[00:32:27] Speaker 03:
The exact same page that counsel cited to, which talks about Florida law, says at the end of that section... Are you talking about A1250?

[00:32:39] Speaker 03:
If it is, in fact, document 92 on page 15, which is our opposition to Ingenio's motion to dismiss cross-claim.

[00:32:50] Speaker 04:
We're in the joint appendix.

[00:32:52] Speaker 04:
He cited, to my recollection, as he cited page 1250.

[00:32:54] Speaker 04:
He cited page 1250.

[00:32:56] Speaker 04:
So you say on the exact same page that he cited.

[00:33:02] Speaker 03:
Yes.

[00:33:02] Speaker 03:
OK.

[00:33:02] Speaker 03:
At the bottom of the second paragraph of that section, the paragraph should begin, issues of Florida law, et cetera.

[00:33:09] Speaker 03:
The bottom of the second paragraph of that section, the last two lines, it says in the middle, or if Quebec law does apply, then this court can easily construe Quebec civil law.

[00:33:21] Speaker 03:
Do you see that?

[00:33:23] Speaker 03:
Yeah.

[00:33:24] Speaker 03:
Okay.

[00:33:24] Speaker 03:
So understand the context, Your Honor.

[00:33:28] Speaker 04:
This doesn't say Quebec law should be applied.

[00:33:33] Speaker 03:
But you have to understand the context.

[00:33:35] Speaker 03:
Ingenio has said

[00:33:37] Speaker 03:
you're seeking to file a lawsuit that isn't in your field of use because the defendants were engaged in gambling and we have that field of use.

[00:33:46] Speaker 03:
And we said no, the defendants were not engaged in gambling if you construe what they were doing under Florida law because gambling is a state by state basis.

[00:33:54] Speaker 03:
It's not going to be a Quebec law determination whether they were gambling or not.

[00:33:58] Speaker 03:
So if you construe what the defendants were doing, they were doing it in our field of use.

[00:34:05] Speaker 03:
which is what the Florida law part was.

[00:34:09] Speaker 03:
And so if under Florida law, the defendants are in our field of use, then we should be entitled to file this suit, and Ingenio's refusal to consent would be in violation of Quebec civil law.

[00:34:28] Speaker 03:
That's the argument, Your Honors, and my time is up.

[00:34:33] Speaker 04:
Thank you.

[00:34:34] Speaker 04:
We thank both councilors.