[00:00:00] Speaker 06: The case this morning is number 145034, Unitrac LLC versus United States, Mr. Hayes. [00:00:14] Speaker 05: Good morning, Your Honor. [00:00:18] Speaker 05: I can be actually fairly brief on this. [00:00:20] Speaker 05: The tolling statute begins with one as I read the receipt of a written claim for compensation. [00:00:28] Speaker 05: The August 25th letter by UNITRAC to the government is indeed a written claim for compensation. [00:00:36] Speaker 06: No question. [00:00:37] Speaker 06: Well, how could that be when you said you didn't want them to treat it as a claim? [00:00:41] Speaker 06: Excuse me? [00:00:41] Speaker 06: How could that be when you said you didn't want them to process it as a claim? [00:00:47] Speaker 05: It is a claim for compensation. [00:00:50] Speaker 05: What they said was they didn't want to process it as a formal defaz action. [00:00:56] Speaker 05: which in our view has nothing to do with the, quote, tolling statute. [00:01:01] Speaker 05: The tolling statute is relative to suit. [00:01:04] Speaker 05: That's one of the issues. [00:01:06] Speaker 05: And the receipt of a written claim for compensation, even the court itself specifically found, the lower court, that the letter was indeed compliant with the statute. [00:01:26] Speaker 05: That's the issue. [00:01:27] Speaker 05: The court found that the letter was compliant and then went about and rewrote the statute to require the filing of a formal defaz action. [00:01:40] Speaker 05: There's no authority to just change a statute that talks about a written claim for compensation. [00:01:46] Speaker 06: Well, how is it a claim when you're saying we don't want it to be treated as a claim? [00:01:50] Speaker 06: Excuse me? [00:01:51] Speaker 06: How is it a claim when you say you don't want it treated as a claim? [00:01:57] Speaker 05: It's a claim because it complies as the district court found. [00:02:04] Speaker 05: It identifies the patent. [00:02:08] Speaker 05: It accuses the government of infringement. [00:02:12] Speaker 05: It identifies the accused product. [00:02:15] Speaker 05: It indicates that when we talk about a claim [00:02:19] Speaker 05: compensation, it indicates a need for a license. [00:02:23] Speaker 05: And if it's not a claim, as you just asked it, the district court found that it was. [00:02:29] Speaker 05: The lower court said it did comply with the statute. [00:02:33] Speaker 05: But what the lower court said is, so what? [00:02:36] Speaker 05: I don't care if it complies with the statute. [00:02:39] Speaker 05: What I'm going to do is I'm going to rewrite the statute, which it did, and I'm going to require that [00:02:48] Speaker 05: Now, in order to begin this tolling statute, you have to file a formal defaz action. [00:02:58] Speaker 05: And I've looked up, and I'm sure you're more familiar with myself, of all the hoops that one has to jump through to file a formal defaz action with about 72 different paragraphs, and the lower court [00:03:13] Speaker 05: had no authority to read that requirement into the statute, particularly given the case from the Federal Circuit here of this Infotech case, which says that the language is plain and unambiguous. [00:03:27] Speaker 05: You don't go, in fact, to the regulations or guidance at all. [00:03:33] Speaker 05: And the district court or the lower court in this particular instance, they didn't identify any, quote, ambiguity at all in the statute. [00:03:44] Speaker 05: to rely upon to even do what they did. [00:03:47] Speaker 05: Similarly, the government, they haven't identified in their briefs any legitimate ambiguity. [00:03:54] Speaker 05: They, you know, they start saying that the word, you know, claim is somehow universally ambiguous. [00:04:02] Speaker 05: I don't think a claim for compensation to lawyers is ambiguous whatsoever. [00:04:08] Speaker 05: And this court itself, the court of claims anyways, [00:04:11] Speaker 05: has found that two lines basically saying you and Fringe is sufficient to comply with that statute. [00:04:20] Speaker 05: And in the Dow case that we cited to you, that says that the whole idea of the statute is to give the government a chance to evaluate the claim and to settle. [00:04:35] Speaker 05: And they spent two years, approximately, trying to settle this. [00:04:42] Speaker 05: with detailed claim charts and all the rest. [00:04:45] Speaker 05: There is no, the bottom line is, there's no authority that I can seek and that anybody has cited, the lower court or whatever, that allows the court to simply read into that, the tolling statute, read into 35 USC 286, a statement that says, [00:05:07] Speaker 05: in receipt of a written claim for defias action. [00:05:13] Speaker 06: There's no authority the other way either. [00:05:15] Speaker 06: Excuse me? [00:05:16] Speaker 06: There is no authority the other way either. [00:05:20] Speaker 06: Well, I would respectfully disagree. [00:05:23] Speaker 06: What case has ever decided this question of whether filing a claim and asking that it not be processed means that you filed a claim? [00:05:33] Speaker 05: Oh, you're correct. [00:05:34] Speaker 05: There isn't any. [00:05:35] Speaker 05: that the authority that we say supports our position about not rewriting the statute to that effect is the fact of the Infotech case, which on its face indicates that the statute has to be ambiguous. [00:05:56] Speaker 05: If it's plain and ambiguous, that's it. [00:05:59] Speaker 05: So I mean, our position is the statute's plain, it's unambiguous, [00:06:05] Speaker 05: No one has pointed out a legitimate ambiguity that would allow the court to dip in and now rewrite it. [00:06:12] Speaker 05: And I think the fact that we said, well, don't consider this a defar's action is irrelevant. [00:06:18] Speaker 05: It's totally irrelevant simply because it's the relevant- You didn't just say it was a defar's action. [00:06:29] Speaker 04: You also said that you've attempted to settle this on a negotiated basis. [00:06:34] Speaker 05: That's right. [00:06:35] Speaker 05: They tried to settle. [00:06:36] Speaker 05: After the original letter of August, there were many meetings with the government. [00:06:42] Speaker 05: In the correspondence that was said. [00:06:46] Speaker 05: Sure. [00:06:48] Speaker 05: Sure. [00:06:48] Speaker 05: That whole period of time was used specifically, by the way, for the whole purpose of the tolling statute. [00:06:56] Speaker 05: As in Dao says, what's the purpose of tolling? [00:06:59] Speaker 05: The purpose of the tolling statute [00:07:01] Speaker 05: Just allow the government to sit down and try and settle the thing. [00:07:05] Speaker 05: The purpose isn't for the government to sit down, try to settle it, run the clock out and then say, ah, you didn't file a formal defiance action. [00:07:16] Speaker 06: You withdrew it. [00:07:16] Speaker 06: Well, it's within your control. [00:07:18] Speaker 06: You can tell them this is a claim. [00:07:20] Speaker 06: The clock is running. [00:07:21] Speaker 06: Well, somewhat in your control. [00:07:24] Speaker 05: I mean, there's a lot more behind the scenes when you're trying to negotiate with the government. [00:07:30] Speaker 05: There's a lot of politics. [00:07:31] Speaker 05: There's a lot of everything involved in that circumstance. [00:07:35] Speaker 02: In the case of Martinez versus United States, we said that a claim accrues when all the events have occurred to fix the government's alleged liability. [00:07:44] Speaker 02: But if you submit a letter and you say, this is a claim, but don't process it, how does that fix the government's liability? [00:07:53] Speaker 05: I think what you're doing is [00:07:59] Speaker 05: confusing with all due respect the beginnings of the accrual date, which is another issue. [00:08:07] Speaker 05: Obviously, that statement, when all events occur to fix liability, that Kinsey case, that issue, the government's liability is fixed when they infringe. [00:08:28] Speaker 05: That's when they're fixed. [00:08:30] Speaker 05: They're fixed, which is the accrual argument, but in any event, if you move on to that, when the IUID system was used by the government, that is the time it fixes their, quote, liability. [00:08:46] Speaker 05: Obviously, they have to sell something that has each and every element of the claimed invention. [00:08:52] Speaker 05: If they don't, and they only sell a portion of their rug, [00:08:55] Speaker 05: then that's it. [00:08:57] Speaker 05: But that's when the thing starts running. [00:09:01] Speaker 05: That's not tolling. [00:09:02] Speaker 05: That's a running system. [00:09:04] Speaker 05: And on that issue, if we move to that just real quickly on that issue, the biggest error of the district court is the confusion of the court. [00:09:15] Speaker 05: I understand. [00:09:17] Speaker 05: The lower court is, in fact, that the registry is not the accused product. [00:09:24] Speaker 05: The registry doesn't infringe on its own. [00:09:27] Speaker 05: Did you put in any evidence to that effect? [00:09:29] Speaker 06: Huh? [00:09:30] Speaker 06: Did you put in any evidence? [00:09:32] Speaker 05: Yes. [00:09:33] Speaker 05: We cited right in the brief, the evidence is that that specific argument was made on... Did you put in any expert testimony on that point? [00:09:45] Speaker 05: No. [00:09:46] Speaker 05: Did we? [00:09:47] Speaker 05: No. [00:09:48] Speaker 05: The fact is, the evidence that we put in to support that point was A, [00:09:54] Speaker 05: the interrogatory answers of the government, which specifically put a May 2004 date. [00:10:04] Speaker 05: Signed under oath, you have those at A3723. [00:10:08] Speaker 05: That's one piece of evidence. [00:10:12] Speaker 05: Another piece of evidence, a 30B6 testimony of Mr. Winnington, the government's 30B6 person as to when did you [00:10:23] Speaker 05: When was this thing up and running? [00:10:25] Speaker 05: The whole thing. [00:10:26] Speaker 05: And that was May 2004. [00:10:28] Speaker 06: That's kind of the same thing as the question of whether they satisfied the claim limitation with the system earlier. [00:10:36] Speaker 06: Excuse me? [00:10:37] Speaker 06: It doesn't have to be up and running to start the running of the statute of limitations as long as there's a prototype, right? [00:10:45] Speaker 06: As long as there's a prototype having each and every element of the claim. [00:10:49] Speaker 06: Right. [00:10:50] Speaker 06: So that statement is not directed to whether the prototype met each and every element of the claim, is it? [00:10:55] Speaker 06: Sure it is. [00:10:57] Speaker 05: Because the prototype did not have, it's conceded that the prototype was not connected to the wide area network. [00:11:06] Speaker 05: Period. [00:11:06] Speaker 05: There's no dispute that that prototype was not connected to a wide area network. [00:11:11] Speaker 05: It was a prototype of a registry, which is a database. [00:11:16] Speaker 05: The invention is not a database. [00:11:18] Speaker 05: They would love you to believe it, but it isn't. [00:11:20] Speaker 05: The invention is a database. [00:11:23] Speaker 05: And then if you look at the claim, it has a means for communicating by a plurality of uses to the database. [00:11:30] Speaker 06: What about the affidavits? [00:11:31] Speaker 06: There are two affidavits by Northrop individuals who go through what was happening with the prototype and describe it and say it was accessible to the contractors. [00:11:41] Speaker 06: You know, there it is. [00:11:43] Speaker 06: You didn't refute that. [00:11:44] Speaker 06: How do you deal with that? [00:11:47] Speaker 05: They didn't refute it. [00:11:48] Speaker 05: That is incorrect. [00:11:55] Speaker 05: They didn't refute it. [00:11:57] Speaker 05: The testimony, first of all, the government's answers contradict that. [00:12:02] Speaker 05: Second, they said it wasn't available. [00:12:04] Speaker 05: The only way the contract is yet, in fact, in communication with the database, [00:12:11] Speaker 05: is over the wide area network. [00:12:14] Speaker 02: Period. [00:12:14] Speaker 02: Weren't there other systems that could have been utilized? [00:12:16] Speaker 02: No. [00:12:17] Speaker 05: That's the point. [00:12:19] Speaker 05: The whole point is that the registry was made by the government, and excuse me, by Northrop government, they were going to then hook and integrate that into the wide area network, put it together, and then turn it on. [00:12:33] Speaker 05: And there absolutely cannot be a dispute [00:12:37] Speaker 05: That in fact, that did not occur until 2004. [00:12:40] Speaker 06: Yeah, but the question is whether that had to occur to satisfy the claim. [00:12:43] Speaker 05: Well, of course it does, because if you look at element 1H of the claim, it calls specifically for a means for communicating between the users, so to speak, let's call them users, means for communicating electronically between the users and then [00:13:04] Speaker 06: the database. [00:13:05] Speaker 06: Yeah, but don't the Elman and Mills affidavits spell out how there was a means for communication in the prototype. [00:13:13] Speaker 05: No, it has to be, it's an electronic network. [00:13:15] Speaker 05: It's the means, it's the swos. [00:13:17] Speaker 05: If you went and you said, okay, what does that mean? [00:13:22] Speaker 05: So we had a claim construction, and I would have to point to what that means is. [00:13:28] Speaker 05: And the means actually has been Greek. [00:13:31] Speaker 05: It's the modem. [00:13:33] Speaker 05: All right? [00:13:34] Speaker 05: And the modem is attached to the network. [00:13:36] Speaker 05: That's the means. [00:13:37] Speaker 05: And the question is, when did they have the network with the modem such that a user can type it in? [00:13:44] Speaker 05: And the answer is, according to the government, not me, according to the government, it was in May. [00:13:50] Speaker 05: According to the 30B6 person, it was in May. [00:13:53] Speaker 05: It doesn't matter if you have a prototype. [00:13:55] Speaker 06: What does the 30B6 witness say that's relevant here? [00:13:59] Speaker 05: It's at A3385. [00:14:01] Speaker 05: He conceded that the WAF, which is the network, which is the means to communicate to the... In your view, that's the only way you can satisfy limitation H, right? [00:14:17] Speaker 06: Absolutely. [00:14:19] Speaker 06: That's the central question, is whether the WAF is the only way you can satisfy H or whether the affidavits spell out another way. [00:14:29] Speaker 06: that we've used in the prototype to communicate that satisfied the claim limitation. [00:14:33] Speaker 06: Wait, wait, wait. [00:14:34] Speaker 06: That satisfied the claim limitation, right? [00:14:38] Speaker 05: Yes, yes, yes, yes. [00:14:40] Speaker 05: But the point is, what they're spelling out, and I think we basically did it, is that let's assume you have a prototype. [00:14:49] Speaker 05: And let's assume you sort of manually stuff it in the data. [00:14:53] Speaker 05: That's not going to do it. [00:14:55] Speaker 05: This is an electronic system. [00:14:57] Speaker 05: This is a system that's designed [00:14:59] Speaker 05: so that it can sit here on Washington or wherever it may be and someone in Iraq can figure out what tank is. [00:15:06] Speaker 02: If the system is designed to process data from a data bank and you want to test the system, why isn't entering the information manually effectively test that system? [00:15:18] Speaker 02: Because the claimed invention... Or enable the system. [00:15:22] Speaker 05: It isn't. [00:15:23] Speaker 05: Because the claimed invention, excuse me, the claimed invention [00:15:29] Speaker 05: concerns the electronic communication of the data, not stuffing it in manually with a computer like this when you're sitting right next to it. [00:15:38] Speaker 05: That's not the idea. [00:15:40] Speaker 05: The system is a plurality of users out there. [00:15:43] Speaker 05: You've got a network, and then the communication goes over it. [00:15:47] Speaker 02: That's what we explain. [00:15:48] Speaker 02: Well, if you're testing the system to see if the system's going to process the data correctly in a way that's expressed in the claims, why wouldn't [00:15:58] Speaker 02: entering the data manually, provide that type of a test. [00:16:02] Speaker 02: In fact, didn't you admit that that would satisfy, that there's other means by which, other than the WAF, by which means that the system would operate? [00:16:12] Speaker 05: You have to test the claimed invention. [00:16:17] Speaker 05: That's what we're talking about. [00:16:19] Speaker 05: You have to test the system that's the subject of the claimed invention that would infringe [00:16:24] Speaker 06: For example... And your argument is the only way you could do that is with the WAF, and we're asking you whether there isn't some other way of testing it that satisfies limitation H, as the government has argued. [00:16:37] Speaker 05: Correct. [00:16:38] Speaker 05: Well, first of all, wouldn't infringe. [00:16:40] Speaker 05: Testing it manually, effectively, is what the government is saying into the prototype area. [00:16:46] Speaker 05: Wouldn't infringe because the first thing we could do is we'd have a plane construction hearing. [00:16:51] Speaker 05: They would say, boom, [00:16:53] Speaker 05: The means for doing that is a modem. [00:16:55] Speaker 05: It's the network. [00:16:56] Speaker 05: It's all disclosed in the patent. [00:16:58] Speaker 05: Where is that? [00:16:59] Speaker 05: We didn't have that. [00:17:00] Speaker 05: That's not an infringement. [00:17:01] Speaker 05: That test isn't an infringement. [00:17:03] Speaker 06: That would be the first argument they would make. [00:17:06] Speaker 06: Okay. [00:17:06] Speaker 06: I think we're out of time. [00:17:07] Speaker 06: You're into your rebuttal or you're past your rebuttal. [00:17:10] Speaker 06: We'll give you two minutes for rebuttal. [00:17:11] Speaker 06: Okay. [00:17:12] Speaker 06: Thank you, Judge. [00:17:15] Speaker 06: Mr. Ruddy? [00:17:25] Speaker 01: good morning your honor, may it please the court? [00:17:27] Speaker 01: Unitrack has pointed to no clear error in the court's decision that this action was barred by the statute of limitations. [00:17:33] Speaker 01: There's a second issue also that was briefed concerning the means plus function language element in this case, and rather than claiming a specific and innovative way of implementing a function, Unitrack- Why don't you address first the last point that they were arguing that the prototype didn't satisfy the claim limitation? [00:17:51] Speaker 01: Sure, well, two points. [00:17:54] Speaker 01: First, unit-track below, and I don't think I quite understood their argument until now, was arguing not this element 1H. [00:18:01] Speaker 01: They were arguing this element 1B, this means for transmitting. [00:18:05] Speaker 01: They were arguing that this distinction that they've made between this registry and system and... Okay, but address 1H. [00:18:12] Speaker 01: That's what they're relying on now. [00:18:14] Speaker 01: No. [00:18:15] Speaker 01: The Mills declaration that Northrop has presented has explained that there was a GDS beta box. [00:18:20] Speaker 01: Now, that was a mechanism that was [00:18:24] Speaker 01: through the internet that was available to contractors and government people alike that had all the core functionality. [00:18:29] Speaker 01: So as far as means for enabling users to access that data, contractors had access to that. [00:18:35] Speaker 01: That internet connection made that available. [00:18:38] Speaker 01: So whether or not it's a means for transmitting like they argued below, or it's a means for enabling access, Mill clearly explained this in his declaration, and he was deposed for seven hours along with another witness on this, that the GDS beta box [00:18:53] Speaker 01: that was available in August of 2003 performed all those core functions. [00:18:57] Speaker 01: And Unitrack never challenged that below. [00:18:59] Speaker 01: And that's my point. [00:19:01] Speaker 01: I was surprised by this one. [00:19:03] Speaker 06: They're arguing now that your interrogatory answer raises a fact issue. [00:19:06] Speaker 06: What's the answer to that? [00:19:07] Speaker 01: Well, the answer is very clear. [00:19:09] Speaker 01: In every interrogatory, we made clear, the government made clear that these may have been done earlier by our contractor. [00:19:16] Speaker 01: And it's not surprising that the contractor may have more detailed information [00:19:19] Speaker 01: than the government did in its own instance. [00:19:22] Speaker 01: And that's why, if you see, every interrogatory is clear on that point. [00:19:25] Speaker 01: And that's why the Mills declaration is very detailed about how him and his other colleagues went about creating this prototype that had all this core functionality. [00:19:37] Speaker 01: Whether it's the means for transmitting, like they argued below, or the means for enabling users, that GDS beta box had all those core functions. [00:19:44] Speaker 01: And an example I would think of is, she would claim for a tank. [00:19:48] Speaker 01: and the tank includes a projectile firing mechanism. [00:19:52] Speaker 01: If I later add a second gun barrel to that tank, it doesn't create a separate accrual. [00:19:57] Speaker 01: It's still just one tank. [00:19:58] Speaker 01: And that's why we made a distinction in our brief between cases like Sterobin, where there were a number of units, and then cases like Bissell, which was a unpublished decision, but it was consistent with this case in that there was one unit, and that was alleged to have infringed. [00:20:15] Speaker 01: uh... more than six years prior to the claim at the point it's not an esoteric issue of infringement it really have to be based on the allegations of uh... that uh... plenty and if you look we point out our brief there is a document they presented or they ever said that they filed their claim the talk about a number of alternative direct submission methods beyond those including the w a w f and that's in the record it two six seven three to two six seven nine [00:20:44] Speaker 01: They explained, beyond the WAWF, you can do it all these other ways. [00:20:48] Speaker 01: And that's why I think the tank example is pertinent. [00:20:50] Speaker 01: But not to the issue of tolling. [00:20:52] Speaker 01: Mr. Hayes explained that there's no case law on someone coming into the government and saying, we want to have this negotiation issue. [00:21:00] Speaker 01: We want to negotiate first, and then we want to withhold the timing of our administrative claim. [00:21:07] Speaker 01: The Motorola case, this is cited on page 23 of our brief. [00:21:11] Speaker 01: It was a quarter federal claims case. [00:21:13] Speaker 01: from 87, but the whole point there was, the quote is, because Motorola itself did not treat the February 25th letter as an administrative claim, it was not seen to trigger tolling. [00:21:23] Speaker 01: And that's exactly what happened here. [00:21:25] Speaker 01: Consistent with the Motorola case, if a contractor is, or I'm sorry, I heard a claim. [00:21:30] Speaker 01: I understand. [00:21:33] Speaker 01: But here's another argument why this in practice would cause wreak havoc. [00:21:37] Speaker 01: There's a whole bunch of agency counsel at each of these [00:21:40] Speaker 01: agencies, particularly the Navy and the Army come to mind. [00:21:43] Speaker 01: How would they have an ability to review and deny a claim if one is never officially submitted? [00:21:49] Speaker 01: And so that's the point. [00:21:50] Speaker 01: When the language of the statute says the tolling period is two dates, the date of receipt, this is 286, the date of receipt of a written claim for compensation by the department or agency of the government having authority to settle such claim and the date of mailing by the government of a notice to the claimant that his claim has been denied. [00:22:08] Speaker 01: So all these agency counsel whose job it is to address these administrative claims, they wouldn't have an ability to deny it if the claimant or the, the, excuse me, the patentee comes in and just wants to have a negotiation issue. [00:22:21] Speaker 01: And so you have very clear statements from Mr. Karlakis, uh, back in, in, from 2007 all the way through 2009. [00:22:30] Speaker 01: And the court has obviously read this part, but I'll read it again. [00:22:33] Speaker 01: This is in the record at 2949. [00:22:35] Speaker 01: To date, Unitrac has endeavored to settle its infringement claims on a negotiated basis with DOD. [00:22:42] Speaker 01: Unitrac has filed the necessary documentation and complied in all the respects. [00:22:46] Speaker 01: And then just giving the next sentence, however, Unitrac has requested and the department has agreed not to process Unitrac claims under those procedures at this time because of the unique circumstances presented. [00:22:56] Speaker 01: We do not believe those procedures are suitable for resolving this particular dispute. [00:23:00] Speaker 01: That's my point. [00:23:01] Speaker 01: None of the people in the Navy or DOJ General Counsel or in J. Charles Johnson's office had an ability to sit down and decide whether or not to deny this. [00:23:11] Speaker 01: So they had no ability to end the tolling period effectively. [00:23:15] Speaker 01: These negotiations were just essentially ongoing. [00:23:20] Speaker 01: And if I could just briefly bring up a point about the means plus function language. [00:23:27] Speaker 01: The prosecution history is clear that these means for mathematically linking and means for linking were never in the claims originally. [00:23:34] Speaker 01: And if you look at the prosecution history, you'll see that when they were in reissue, they told the patent office that the corresponding structure was, it is clear that a computer, a database, a centralized database are all suitable structures. [00:23:46] Speaker 01: That's antithetical to this court's aristocrat tech case. [00:23:50] Speaker 01: But then when we get into litigation, now they're saying something completely different. [00:23:54] Speaker 01: This is now their concatenation argument, and this is on page 44 of their brief. [00:23:59] Speaker 01: And they now say that this algorithm is not a computer, it's not a database, it is somehow concatenation. [00:24:07] Speaker 01: And I think that that brings up, is consistent with this court holding an ibrometh, where the court looks to, there was an algorithm, clearly an algorithm in figure 10 in that patent. [00:24:16] Speaker 01: And the court said, because you have said that the algorithm is not what's in this figure, it's something else, that's going to be a binding admission on you. [00:24:24] Speaker 01: And when that's a binding admission on you, you're patented indefinite for that purpose because of public notice. [00:24:29] Speaker 01: I see that I'm in my bubble time. [00:24:31] Speaker 01: And thank you, Mr. Right. [00:24:33] Speaker 01: Yes. [00:24:34] Speaker 01: Do you affirm that there's a trial? [00:24:35] Speaker 01: Thank you very much. [00:24:37] Speaker 00: Good morning, Your Honor. [00:24:45] Speaker 00: And on this snowy morning, may it please the court. [00:24:47] Speaker 00: I'd like to start with the accrual issue that Unichak had raised. [00:24:52] Speaker 00: and point particularly to the language in the record about this WAWF, which by the way, WAWF stands for the wide area workflow, not wide area network. [00:25:04] Speaker 00: That's important because the GDS beta box was the mechanism by which the registry was connected to the network. [00:25:14] Speaker 00: So the issue is that this concept of IUID was established in the 2002 timeframe by the government. [00:25:21] Speaker 00: And then onwards into 2003, they came up with certain requirements that they wanted it to have. [00:25:26] Speaker 00: And by June of 2003, they asked Northrop Grumman to develop something, to develop a prototype. [00:25:32] Speaker 00: And the issue is that by August 22nd, 2003, that prototype was developed and was made available by and for use by the government. [00:25:42] Speaker 00: And the wide area workflow didn't come around yet, but that didn't matter. [00:25:47] Speaker 00: Because in August 22nd, 2003, they had already connected it to this GDS beta box that allowed it to be accessed by government employees in other locations. [00:25:59] Speaker 00: And so that was essentially a private website. [00:26:01] Speaker 00: If you knew what the IP address was, you were able to enter in. [00:26:05] Speaker 00: And then from there, you were able to access it and retrieve data, which is what Matthew Mills and Glenn Ellman had said in their declaration. [00:26:12] Speaker 00: It should be clear, employees and contractors, right? [00:26:15] Speaker 00: Not at that time. [00:26:17] Speaker 00: Well, Martha Grum was the contractor, so they were. [00:26:20] Speaker 00: But aside from that, it was government employees at that time. [00:26:24] Speaker 00: The other contractors came on board for further prototype testing, or not prototype testing, but further implementation and production testing is what I was looking for, later on in the May of 2004 timeframe. [00:26:37] Speaker 00: And then in August 2004, that's when they went absolutely live. [00:26:41] Speaker 00: But that's the difference between a 1498 takings case, [00:26:45] Speaker 00: which is not in the district court, as UNITRAC keeps saying, it's in the court of federal claims. [00:26:51] Speaker 00: And we look at the first accrual, the first accrual meaning when was this made available by and for use by the government and the initial testing by Northrop Grumman and then by the government itself constitutes testing that begins the accrual. [00:27:08] Speaker 00: And so the August 2004 date that UNITRAC keeps asserting [00:27:12] Speaker 00: about when it went live, when it was up and running. [00:27:14] Speaker 00: There's no up and running mentioned anywhere in 2501. [00:27:18] Speaker 00: 28 USC 2501 says that a claim is barred unless it's filed within six years of the date of first accrual. [00:27:27] Speaker 00: First accrual here is when whatever their accusing of infringement was in existence and was made available for the government. [00:27:35] Speaker 00: So the question that Judge Dyke asked, which is the operative question is, [00:27:39] Speaker 00: Okay, well, were they somehow able to undo the accrual by showing that something else happened later that that would have been the infringement, but the earlier version wouldn't have been. [00:27:51] Speaker 00: The only thing that they can point to is this WAWF, which is not a network that they didn't have before. [00:27:58] Speaker 00: It's just this new invoicing procedure and this new invoicing mechanism that they didn't have before. [00:28:04] Speaker 00: That's not part of IUID. [00:28:06] Speaker 00: That's just another mechanism [00:28:08] Speaker 00: by which data could be transmitted to the IOID memory system. [00:28:13] Speaker 00: So that's not what the issue is. [00:28:15] Speaker 00: But we're not the only ones to make that argument. [00:28:17] Speaker 00: Unitrack made that same argument. [00:28:19] Speaker 00: And when you look at A2676, this is the pre-litigation correspondence that Unitrack was submitting to the government in the hopes of trying to get money. [00:28:30] Speaker 00: And they said the WAWF training site was part of the DoD infringement practice, but then they said, [00:28:37] Speaker 00: Because not all parties responsible for submitting data to the IUID registry are WAWF enabled, a number of alternative direct submission methods are available. [00:28:48] Speaker 00: There are four methods that can be used to submit IUID data directly. [00:28:52] Speaker 00: Three electronically and one manually. [00:28:54] Speaker 00: And then on the next page, 2677, it says manually data may be entered via the IUID web entry site. [00:29:01] Speaker 00: That's what was the functionality of the GDS beta box that was available earlier in August 2003. [00:29:09] Speaker 00: So this case really is like if a tank were delivered and a Army tank were delivered in 2003 and then in August of 2004, they decided to put mirrors on the tank. [00:29:20] Speaker 00: So what? [00:29:21] Speaker 00: Unless the patent claim was directed to a tank with mirrors, that wouldn't matter. [00:29:26] Speaker 00: That's where we are here. [00:29:27] Speaker 00: What is the difference between the two? [00:29:29] Speaker 00: just because it had additional functionality, the question is whether that functionality is relevant. [00:29:35] Speaker 00: The other issue about 1H is that it was never addressed by the Court of Federal Claims directly because they never raised it. [00:29:42] Speaker 00: They raised 1B, which is just a means for transmitting. [00:29:46] Speaker 00: And for the first time on appeal, they're raising a whole different claim limitation, 1H, which is also covered by the GDS beta box and is also covered by the same [00:29:56] Speaker 00: language in Matthew Mill's declaration for which he was also cross-examined. [00:30:01] Speaker 00: But nonetheless, it's important to note that this argument was waived anyway. [00:30:06] Speaker 00: For some reason, they didn't want to provide any argument about why there was any real difference between the more recent version versus the original version. [00:30:19] Speaker 00: Let's get to the tolling issue for a minute. [00:30:23] Speaker 00: Section 286 doesn't use the word administrator claim. [00:30:26] Speaker 00: But it does use the word claim, and it uses it twice. [00:30:30] Speaker 00: It says that we need to have a written claim, and then the tolling exists until there's a final denial of that claim. [00:30:39] Speaker 00: And the mechanism by which the DOD operates is that they were unable to deny a claim until a claim was filed. [00:30:48] Speaker 00: That's how the DFARS works. [00:30:49] Speaker 00: So the DFARS is not an interpretation of 286. [00:30:54] Speaker 00: It's their mechanism by which they implement [00:30:57] Speaker 00: That's a fundamental difference. [00:30:59] Speaker 00: So the InfoTech case that they're citing about whether 286 is somehow ambiguous, that's not the issue. [00:31:05] Speaker 00: The issue is that this is the mechanism by which the DOD can handle a claim. [00:31:11] Speaker 00: Now, two issues. [00:31:14] Speaker 00: Number one, what would happen if we created this loosey-goosey system where whenever we just look at what's written and try to find, well, does it seem like it's sufficiently detailed? [00:31:24] Speaker 00: Then we'll start the tolling. [00:31:26] Speaker 00: The problem with that is that then the government would never actually deny it, the claim, because no claim was filed. [00:31:33] Speaker 00: And that would allow the patentee to always game the system to get the full six years, because they would provide some information and then there would never be any denial. [00:31:45] Speaker 00: And here, by the way, the government never treated it as a claim. [00:31:48] Speaker 00: Not only did they say we're not going to treat it as a claim, but they also didn't treat it as something where they actually were going to pay money. [00:31:55] Speaker 00: When you see the claim charts and so forth that Unitrack raises, those were claim charts that Unitrack was submitting. [00:32:02] Speaker 00: Those weren't claim charts that the government was analyzing. [00:32:05] Speaker 00: The government just said, if you want to have a meeting, we'll have a meeting. [00:32:08] Speaker 00: Thank you. [00:32:09] Speaker 00: That was very interesting. [00:32:10] Speaker 00: When are you going to submit a claim? [00:32:12] Speaker 00: Under the DFARS procedure. [00:32:14] Speaker 00: Why is it that Unitrack didn't submit a claim under the DFARS procedure? [00:32:18] Speaker 00: Well, if you look at the patents, these aren't regular patents. [00:32:21] Speaker 00: These are reissued patents. [00:32:23] Speaker 00: These are reissued patents where [00:32:25] Speaker 00: About two weeks after they first started corresponding with the government, they put the patent in reissue. [00:32:32] Speaker 00: A petition for reissue is an offer to surrender your patent. [00:32:35] Speaker 00: That's why they didn't submit a claim under DFARS. [00:32:38] Speaker 00: They weren't even sure whether they're going to have a patent at that point. [00:32:40] Speaker 00: And when did they actually capitulate and say, yes, we'll allow this to be handled as a DFARS claim? [00:32:46] Speaker 00: Coincidentally, two weeks after the reissue date on the patent. [00:32:51] Speaker 00: That's why we had this really unorthodox procedure where they refused [00:32:54] Speaker 00: to submit something, they knew that the government will look at this and say, well, this isn't even really a patent yet. [00:32:59] Speaker 00: We don't know where this stands. [00:33:01] Speaker 06: OK. [00:33:02] Speaker 06: Thank you, Mr. O'Neill. [00:33:03] Speaker 06: We're out of time. [00:33:04] Speaker 06: Thank you. [00:33:07] Speaker 06: Mr. Hayes, you have two minutes here. [00:33:22] Speaker 05: First of all, Your Honor, the argument of 1H and that argument was indeed brought to the attention of the court, was indeed challenged. [00:33:30] Speaker 05: It's A2600. [00:33:32] Speaker 05: There's no question about that. [00:33:34] Speaker 05: That argument was made. [00:33:36] Speaker 05: Secondly, if you look at 1H, it's talking about electronic means of communication between the user, which is, I think, one of the members here pointed out, will contractors, et cetera. [00:33:48] Speaker 05: It was not, as my brother just conceded, a manual operation. [00:33:51] Speaker 05: We've cited to you effectively this beta block where you manually type it in, et cetera. [00:34:00] Speaker 05: The beta block device is not with all the contractors around the world that have it. [00:34:07] Speaker 05: So I mean, it's not the WAWF system. [00:34:11] Speaker 05: My brother's saying the system didn't exist. [00:34:13] Speaker 05: The WAWF network was in existence long before all of this. [00:34:19] Speaker 05: The whole purpose of this entire [00:34:22] Speaker 05: project was to develop a registry that would be integrated into the WAWF. [00:34:30] Speaker 05: And we have that specifically cited to you on the WAWF booklet of May of 2000, which is 2004, which is the date the government conceded effectively as the first date. [00:34:45] Speaker 05: That was the date we asked. [00:34:47] Speaker 05: And now they're just trying to take it all back. [00:34:49] Speaker 05: And I think [00:34:50] Speaker 05: It is absolutely clear under the law that, in fact, this manual, this box that they're talking about is not going to substitute and wouldn't even be an infringement if, in fact, you were going to argue this at a court of infringement. [00:35:06] Speaker 05: They would say, well, that's not it, because manually typing this stuff, et cetera, in one location is not going to do it, period. [00:35:16] Speaker 05: I think that's quite a stretch. [00:35:18] Speaker 03: What about the use of the GDX box? [00:35:20] Speaker 05: Excuse me? [00:35:21] Speaker 03: What about the use of the GDX box? [00:35:26] Speaker 05: My understanding that you have to have, that is not good. [00:35:30] Speaker 05: You have to read, if you just read paragraph H of claim one of the patent, it doesn't just talk about communication. [00:35:41] Speaker 05: It says means for providing this uniform system to a polarity of users and means for instantly receiving updated data [00:35:50] Speaker 05: relating to the article. [00:35:52] Speaker 05: That means the user is going to get that updated data. [00:35:55] Speaker 05: The user has to have that means. [00:35:58] Speaker 05: The user has to have that means at his disposal, the contractor that we're talking about here. [00:36:03] Speaker 05: That box is not in the contractor's office, and neither one of them are. [00:36:09] Speaker 05: Okay. [00:36:10] Speaker 06: I think we're out of time. [00:36:11] Speaker 06: Thank you very much. [00:36:12] Speaker 05: Okay. [00:36:12] Speaker 05: Thank you, Judge. [00:36:13] Speaker 05: I thank all counsel. [00:36:14] Speaker 06: The case is submitted.