[00:00:35] Speaker 00:
The next case is number 15, 2010, Commonwealth Laboratories, Quintron Instrument Company.

[00:00:43] Speaker 00:
Mr. Johnson.

[00:00:45] Speaker 01:
Thank you, Your Honor.

[00:00:46] Speaker 01:
Just be please again, just a note.

[00:00:48] Speaker 01:
I mean, your confidentiality markings in your brief seem to be largely improper.

[00:00:59] Speaker 01:
They are marking stuff that

[00:01:02] Speaker 01:
the claiming confidentiality description of your assertions in the case and the references to those?

[00:01:10] Speaker 00:
Would you go through the brief with a sharp pencil and assure both of you that the aspects for which you've requested confidentiality is a separate issue of what we discuss here and that what you want to be sure doesn't end up in some written opinion that might disclose confidential information?

[00:01:32] Speaker 01:
Sure, Your Honor, thank you.

[00:01:33] Speaker 01:
You ought to file a new brief that has proper confidentiality on the market.

[00:01:38] Speaker 00:
Whatever is the most convenient way to resolve the question so that we can proceed with deciding the case?

[00:01:47] Speaker 02:
Certainly, thank you.

[00:01:49] Speaker 00:
Okay, we proceed with the merits?

[00:01:51] Speaker 02:
Yeah, and I'm happy to be here today with two spectators from Quintron Instrument Company and

[00:01:59] Speaker 02:
They are Mr. Stephen Hamilton and Mr. Eric Hamilton.

[00:02:03] Speaker 02:
And together, they are the second and third generation of this family company, the first generation being Dr. Lyle Hamilton, whose evidence you see in the record there, Steve Hamilton being Dr. Lyle Hamilton's son, and Eric Hamilton being Steve's son.

[00:02:22] Speaker 02:
So.

[00:02:27] Speaker 02:
Dr. Hamilton, in 1992, wrote a book, Breath Tests in Gastroenterology.

[00:02:34] Speaker 02:
Dr. Hamilton was a respiratory physiologist who studied in the human body the mechanism by which breath is expired.

[00:02:45] Speaker 02:
I thought the issue was attorney's fees.

[00:02:49] Speaker 02:
The issue is attorney's fees.

[00:02:50] Speaker 02:
I'm sorry.

[00:02:55] Speaker 02:
The strengths and weaknesses of this case are exemplified by Dr. Hamilton's work in 1992 and by Steve Hamilton's patent, the 776 patent that issued in 1995.

[00:03:08] Speaker 01:
The district court decided not to award attorney's fees.

[00:03:11] Speaker 01:
Why is that reversible error, given the standard review, which is deferential?

[00:03:18] Speaker 02:
Yes, and it is.

[00:03:19] Speaker 02:
And it is reversible because the district court failed to take into account the totality of the circumstances

[00:03:25] Speaker 02:
The first aspect under the totality of the circumstances that the district court failed to take into account was the weakness of commonwealth's case.

[00:03:34] Speaker 02:
And the weakness of commonwealth's case is best exemplified by a few different examples.

[00:03:39] Speaker 02:
First is its contributory infringement claim.

[00:03:43] Speaker 02:
And a claim for contributory infringement

[00:03:48] Speaker 01:
obviously requires that the accused device have no substantial non-infringing use.

[00:03:53] Speaker 01:
Well, what suggests that the district court didn't take that into account?

[00:03:56] Speaker 01:
You must have argued that.

[00:03:57] Speaker 01:
We did, and there's nothing in the opinion that addresses this.

[00:04:00] Speaker 01:
Why does he have to address every issue in the opinion?

[00:04:05] Speaker 02:
Well, under the totality of some circumstances analysis, it is to give weight to the total strength of the case and the total weakness of the case.

[00:04:13] Speaker 02:
But there's no indication that the district court didn't consider that issue, right?

[00:04:18] Speaker 02:
There's no indication that it considered it or didn't consider it.

[00:04:21] Speaker 02:
It failed to mention it in the opinion.

[00:04:24] Speaker 02:
So we reverse district courts for failure to mention stuff?

[00:04:28] Speaker 02:
No.

[00:04:28] Speaker 02:
You reverse district courts for a failure to recognize the weakness of the case and failure to recognize the sheer weakness of the contributory infringement claim, the direct infringement claim, and the inducement infringement claim, and none of which are recognized with the exception

[00:04:46] Speaker 02:
the inducement claim is addressed in short.

[00:04:53] Speaker 02:
The reversal is because the totality of the circumstances here requires it.

[00:04:59] Speaker 02:
The accused devices, and this is something that I've never seen, the accused device is mentioned explicitly on the face of the accused patent.

[00:05:09] Speaker 02:
In 1987, Quintron sold the accused device to Commodore directly.

[00:05:16] Speaker 02:
Preceding the application date of the patent, Quintron sold the device to Cedars-Sinai.

[00:05:23] Speaker 02:
And the patent itself mentions that the accused device was used for its intended purpose, and that's to test for SIBO, small intestinal bacterial overgrowth.

[00:05:34] Speaker 02:
So these are circumstances that, frankly, I've never seen, and I don't see reported in the cases.

[00:05:41] Speaker 02:
I've never seen anything like this reported in the cases.

[00:05:44] Speaker 02:
And that's what sets this case apart from the mine run cases that Octane Fitness recognizes.

[00:05:51] Speaker 02:
So the material in the possession of Commonwealth Prior to filing this case also dictates that this is an exceptional case.

[00:06:06] Speaker 02:
And it's reversible under the totality of the circumstances analysis that the district court should have engaged in.

[00:06:14] Speaker 02:
And the material in Commonwealth's possession, they had an accused device in their possession from 1987 until today's date, presumably.

[00:06:25] Speaker 02:
But certainly, they had it in their possession during the pre-filing investigation stage of this analysis indicated that, number one, they saw the 776 patent number on it from 1995.

[00:06:40] Speaker 02:
And yet, they accused that breath testing analysis kit

[00:06:44] Speaker 02:
of infringement, 1995, well before the filing date of the Cedar Sinai patent in suit.

[00:06:51] Speaker 02:
And the machine back from 1987, they were using it from 87 until presumably today, but certainly they had it in their possession during the pre-filing investigation phase.

[00:07:01] Speaker 02:
These are unprecedented facts that indicate that this is an exceptional case that leaps outside of the mind run that Octane Fitness

[00:07:13] Speaker 02:
specifies as the standard here.

[00:07:19] Speaker 02:
And additional factor that the district court failed to recognize was the settlement offer.

[00:07:28] Speaker 02:
The settlement offer and whether there can or cannot be a settlement offer and how that plays into the exceptional case analysis

[00:07:36] Speaker 02:
We fully understand that.

[00:07:38] Speaker 02:
But the settlement offer in this particular case, in addition to being for what we think is a nuisance amount, and in addition to the explicit threat for there to be protracted litigation from Commonwealth against Quintron, in addition to that, the scope of the settlement agreement wasn't considered by the district court.

[00:07:57] Speaker 01:
The scope of the settlement...

[00:08:00] Speaker 01:
I'm sorry.

[00:08:01] Speaker 01:
Wasn't mentioned by the district court.

[00:08:03] Speaker 01:
The scope of the.

[00:08:04] Speaker 01:
You said not considered.

[00:08:06] Speaker 01:
The district court didn't say it didn't consider it, right?

[00:08:09] Speaker 02:
Well, I didn't see a measurement of the scope of the proposed settlement agreement.

[00:08:15] Speaker 02:
And what we have here is Commonwealth's attempt to ensnare with the settlement agreement the devices that they themselves had possessed since 1987.

[00:08:26] Speaker 02:
Because the scope of the settlement agreement

[00:08:29] Speaker 02:
asked for the royalties for the SIBO instrumentation, the gas chromatographs, and the breath testing kits, both of which predated the patent and suit by five years, in the case of Steve's breath testing kits, and over a decade for Commonwealth's own possession of those machines.

[00:08:49] Speaker 02:
And that's the scope of what Commonwealth sought to license, to have.

[00:08:56] Speaker 02:
Quintron license from Commonwealth.

[00:08:58] Speaker 02:
They wanted to ensnare the prior art with their license.

[00:09:00] Speaker 02:
And we all know that that's impossible to do.

[00:09:05] Speaker 02:
So they tried, but we didn't.

[00:09:09] Speaker 02:
And in addition, the settlement agreement would have had Commonwealth assigned to, I'm sorry, the settlement agreement would have had Quintron assigned to Commonwealth all improvements in the gas chromatographs and in Steve's breath testing collection kits.

[00:09:25] Speaker 02:
The patent suit has nothing to do with that.

[00:09:27] Speaker 02:
The patent suit is a method of diagnosing irritable bowel syndrome that should give no rights to Commonwealth to seek from Quintron to have all of its improvements assigned to Commonwealth.

[00:09:46] Speaker 02:
And the other thing that the district court did address in short was

[00:09:53] Speaker 02:
the pre-filing investigation here, and Mr. Stein's testimony regarding the pre-filing investigation that he conducted, and Mr. Stein's billing records regarding the pre-filing investigation that he conducted.

[00:10:06] Speaker 02:
Now, Mr. Stein testified under oath that he had created a computer file before the case was filed.

[00:10:14] Speaker 02:
And our expert says that the claim construction chart in this case wasn't created

[00:10:20] Speaker 02:
until July of 2014, well after the filing date of this case, six months after, seven months after the filing date of this case.

[00:10:29] Speaker 02:
So you have untruths under oath, and you have... Well, the district court said in an early order that that was disturbing.

[00:10:43] Speaker 03:
Yes, it is.

[00:10:49] Speaker 03:
Let's see.

[00:10:52] Speaker 03:
Commonwealth's former counsel may have perjured himself.

[00:10:56] Speaker 03:
Is that a specific quote from it?

[00:10:59] Speaker 02:
Yeah, and that is troubling.

[00:11:00] Speaker 02:
That just supports the exceptionality of this case.

[00:11:03] Speaker 02:
But what I'm saying is the court was aware of it.

[00:11:06] Speaker 02:
The court was aware of it, yes.

[00:11:08] Speaker 02:
And adding it all up, what you have here is a case that

[00:11:16] Speaker 02:
under the Octane Fitness standard is well outside of the norms of patent litigation.

[00:11:20] Speaker 02:
It presents itself a factual scenario which I've never seen.

[00:11:25] Speaker 02:
A device that Quintron has been producing for decades now, the gas chromatograph, is accused of infringement.

[00:11:32] Speaker 01:
Commonwealth had that for, from 1987 until... Yeah, but that doesn't mean there couldn't be an inducement flight, all right?

[00:11:43] Speaker 01:
an inducement for infringing their method claim?

[00:11:49] Speaker 02:
Well, certainly there may be, but the inducement claim still requires that somebody had to have performed all of the method steps of the claim.

[00:12:01] Speaker 02:
Well, now, yes.

[00:12:04] Speaker 02:
It also requires a mens rea element, which Commonwealth said that they had no idea was present or not present in this case.

[00:12:12] Speaker 02:
He still would have had to clear a pleading standard under Akamai, under any version of Akamai.

[00:12:18] Speaker 02:
They would have had to clear a pleading standard.

[00:12:20] Speaker 02:
And that would not have been fatal to their case, because in addition to inducement, they had the direct and contributory claims to fall back on.

[00:12:29] Speaker 02:
Just whatever act am I held that wouldn't have been fatal to their case one way or another, because there are additional theories that it could have relied upon.

[00:12:38] Speaker 02:
So I'd like to save the remainder for my rebuttal.

[00:12:41] Speaker 02:
And I thank you very much.

[00:12:44] Speaker 00:
OK.

[00:12:44] Speaker 00:
Thank you, counsel.

[00:12:47] Speaker 04:
Good morning, Your Honors.

[00:12:49] Speaker 04:
Mr. Utley.

[00:12:52] Speaker 04:
I'll respond as concisely as possible.

[00:12:54] Speaker 03:
Mr. Utley, I'd like to know, because it is disturbing,

[00:12:59] Speaker 03:
what the district court said about former counsel, that former counsel may have perjured himself.

[00:13:11] Speaker 03:
And in its blue brief at 52, just before it has that quote, Quintran asserts the importance of the claims chart, and that it goes beyond dishonesty by counsel.

[00:13:27] Speaker 03:
Your opposing counsel just made that argument,

[00:13:29] Speaker 03:
Where in the red brief did you address that argument?

[00:13:34] Speaker 04:
Your Honor, I'll begin with the first part of your question.

[00:13:37] Speaker 04:
The district court does not resolve the issue of the question of former counsel's conduct in the order dismissing this case.

[00:13:49] Speaker 04:
But she did have conduct an evidentiary hearing later.

[00:13:54] Speaker 03:
I know.

[00:13:54] Speaker 04:
I read it.

[00:13:57] Speaker 04:
Well, at the end of that hearing, then you would know at the appendix at page 1557, she concluded, after testimony of former counsel, after sworn statement from the office administrator, that no misconduct had occurred that warranted reporting.

[00:14:14] Speaker 04:
And so while it may not have been considered fully resolved at the time of the order adopting the report and recommendation.

[00:14:21] Speaker 03:
No, no, no, no.

[00:14:23] Speaker 03:
I didn't ask you a two-part question.

[00:14:25] Speaker 03:
I asked you a one-part question.

[00:14:27] Speaker 03:
And the one-part question was, where did you address it in your red brick?

[00:14:34] Speaker 04:
Your Honor, I don't have the page numbers in front of me.

[00:14:37] Speaker 04:
I apologize.

[00:14:41] Speaker 04:
I believe it was addressed in our red brief, but I'm not aware of pages.

[00:14:46] Speaker 03:
Let me attempt to find it.

[00:14:48] Speaker 03:
Perhaps your associate can find it while you continue with your argument.

[00:14:57] Speaker 03:
I don't want to interrupt your flow any further.

[00:15:00] Speaker 00:
Okay, but please continue with your arguments, and perhaps your colleague will find... I believe it's addressed at page 27.

[00:15:08] Speaker 04:
Excuse me, Your Honor, I didn't intend to interrupt you.

[00:15:21] Speaker 04:
I believe it flows from 27 on to page 28.

[00:15:27] Speaker 03:
You're not understanding my question, then.

[00:15:29] Speaker 00:
No.

[00:15:32] Speaker 03:
But the question is that the argument that your opposing counsel made was that the importance of the claim chart transcends that alleged falsehood of the billing records.

[00:15:49] Speaker 03:
And that it shows that it hadn't been created until six months after the suit.

[00:15:57] Speaker 03:
And he made that argument again.

[00:15:59] Speaker 03:
And that's what I don't see in your red grave.

[00:16:04] Speaker 03:
Yes, you made the argument about the falsehood or non-falsehood.

[00:16:12] Speaker 04:
Yes, Your Honor.

[00:16:13] Speaker 04:
I think what was uncontested below is that former counsel obtained samples of the accused devices.

[00:16:23] Speaker 04:
He reviewed Quintron's advertisements and public information on the website.

[00:16:30] Speaker 04:
He compared those materials to the claims of the 852 patent.

[00:16:35] Speaker 04:
He interviewed the inventor on at least three different occasions.

[00:16:41] Speaker 04:
He reviewed prior art references.

[00:16:43] Speaker 04:
He reviewed the prosecution history.

[00:16:46] Speaker 04:
All of that present in his deposition and uncontested as

[00:16:51] Speaker 04:
This court held, I believe, in its Q Pharma case versus Andrew Juergens, which is cited in the briefs.

[00:16:59] Speaker 04:
I'll quote, a claim chart is not a requirement of a pre-filing infringement analysis.

[00:17:08] Speaker 04:
That's at page 1301 and 1303.

[00:17:11] Speaker 04:
And then on page 1302, the court said, and I'll quote,

[00:17:16] Speaker 04:
An infringement analysis can simply consist of a good faith informed comparison of the claims of a patent against the accused subject matter.

[00:17:27] Speaker 04:
So although there was a discrepancy in when the claims chart was prepared in the view of commonwealth,

[00:17:35] Speaker 04:
The proper pre-suit investigation had occurred pre-suit in the form of the other investigation conducted by counsel, even if, as Quintron alleges, that particular piece of evidence came later.

[00:17:51] Speaker 04:
I'm not conceding that.

[00:17:52] Speaker 04:
I'm simply acknowledging that concession.

[00:17:57] Speaker 04:
What Quintron is asking ultimately here is that this court find that the district court abused its discretion in ruling that this is not an exceptional case.

[00:18:09] Speaker 04:
And it asks you to do so where before dismissal of the case, there had been no discovery, no discovery disputes, no claims construction, no finding of misconduct, no finding of frivolity.

[00:18:25] Speaker 04:
No finding of vexatious or harassing litigation conduct.

[00:18:30] Speaker 04:
No litigation history, not on the part of commonwealth either before or now after.

[00:18:36] Speaker 04:
No extending of the litigation to try to cause additional expense to be incurred.

[00:18:43] Speaker 04:
The complaint was served on Quintron.

[00:18:45] Speaker 04:
Quintron filed a motion to dismiss.

[00:18:48] Speaker 01:
Yeah, but the problem is the complaint does include a couple of claims which, at least one of which, the contributory infringement claim seems to be frivolous on its face.

[00:18:57] Speaker 01:
Right?

[00:18:58] Speaker 04:
Your Honor, at the time the complaint was filed, I believe this court has held that divided infringement... No, no, no.

[00:19:06] Speaker 01:
That's not the issue.

[00:19:07] Speaker 01:
How could there be contributory infringement by selling a device which was known in the prior art?

[00:19:16] Speaker 04:
Your Honor, I'll concede that the claim was not well conceived.

[00:19:20] Speaker 04:
I don't know what was in the mind of former counsel, potentially pleading in the alternative out of an abundance of caution, potentially a misapprehension of the law.

[00:19:32] Speaker 04:
But that claim was withdrawn very quickly, as were all of the claims.

[00:19:38] Speaker 04:
This isn't among the cases where someone pleads a frivolous claim or takes a frivolous position and then maintains it, notwithstanding rulings or it being brought to the party's attention.

[00:19:51] Speaker 04:
Quintron filed its motion to dismiss.

[00:19:56] Speaker 04:
While the motion was pending, the Limelight-Pacamide case came out on June 2.

[00:20:00] Speaker 04:
On June 3, Quintron filed a notice of supplemental authority in the court, and eight days later,

[00:20:08] Speaker 04:
The court had its scheduling conference, and in light of that line-line opinion, recognized that there might be problems with the pleadings, granted the motion to dismiss, and granted leave to replede.

[00:20:21] Speaker 04:
And within the time to replede, commonwealth withdrew the complaint and voluntarily dismissed.

[00:20:30] Speaker 04:
The fact that there might have been an ill-conceived claim or bad lawyering doesn't equate to misconduct.

[00:20:38] Speaker 04:
In fact, the court recognized that the withdrawal of the complaint seemed to indicate a good faith intent to proceed with litigation under the law.

[00:20:50] Speaker 04:
The court also found that, or considered the other claims,

[00:20:55] Speaker 04:
And it concluded that Quintron's arguments that this case was meritorious from its very outset, that those arguments rested on the premise that devices can't infringe a method claim.

[00:21:09] Speaker 04:
And as you'll recall, the court said, quote, mischaracterizes the plaintiff's infringement theory, which was never about the mere sale of devices.

[00:21:19] Speaker 04:
The theory was actually about the provision of a service.

[00:21:22] Speaker 04:
the performance of a process.

[00:21:24] Speaker 04:
Now, Quintron says, well, that is frivolous on its face because Quintron doesn't diagnose.

[00:21:31] Speaker 04:
And yet, Quintron's own website states that these devices are used, quote, as a clinical medical diagnosis for people with irritable bowel syndrome.

[00:21:44] Speaker 04:
The court found that with that evidence, there was a colorable basis to bring a claim of infringement, direct infringement, against

[00:21:52] Speaker 04:
Quintron.

[00:21:53] Speaker 04:
Quintron argued that the induced infringement claim had to be frivolous because Commonwealth couldn't point to one single infringer.

[00:22:03] Speaker 04:
And yet, as you alluded to earlier, Judge Dyke, no single direct infringer was required at the time that the complaint was filed.

[00:22:13] Speaker 04:
In fact, the court said claim one of the patent appears to have two steps in continuing

[00:22:20] Speaker 04:
Defendant's website suggested it performed at least the first step.

[00:22:25] Speaker 04:
It was reasonable for plaintiff to conclude that discovery might uncover evidence that defendant either directed, controlled, or induced the performance of the other step.

[00:22:36] Speaker 04:
The presence of one ill-conceived claim might not, couldn't foreclose the good faith basis for this suit as brought.

[00:22:50] Speaker 04:
Council referred to the pre-suit settlement offer.

[00:22:55] Speaker 04:
As the district court explained, the records simply did not support Quintron's allegation that Commonwealth was simply trying to extort a quick nuisance value settlement.

[00:23:08] Speaker 04:
Quintron's own briefing is indicative of that.

[00:23:12] Speaker 04:
It on the one hand refers to the offer pre-suit as

[00:23:17] Speaker 04:
too expansive as going beyond the patent.

[00:23:21] Speaker 04:
And then later in the briefing refers to it as a nuisance value settle.

[00:23:26] Speaker 04:
It's both too much and too little.

[00:23:29] Speaker 04:
There's nothing improper about serving a letter on a party before serving a lawsuit on them.

[00:23:36] Speaker 04:
The ABA has said it's proper to remind the opposing party of the ordinary costs of proceeding to trial and to suggest that it may be in the opposing party's interest to avoid these costs by agreeing to a settlement.

[00:23:51] Speaker 04:
Of the five cases ever filed by Commonwealth, there is this one.

[00:23:58] Speaker 04:
One resulted in a settlement, and the other three were voluntarily dismissed.

[00:24:03] Speaker 04:
Hardly the pattern of a litigant who is bent on extorting nuisance value settlements through a campaign of litigation.

[00:24:13] Speaker 04:
Commonwealth was a small family-owned and operated Boston laboratory and has no litigation history either before or after.

[00:24:24] Speaker 04:
Quintron makes the allegation that the settlement offer went too far beyond the patent's terms, and yet that statement is simply not accurate.

[00:24:37] Speaker 04:
When the offer was made to license the products

[00:24:41] Speaker 04:
product in the agreement is defined as breath testing kits and breath testing services used to detect SIBO and SIBO related conditions.

[00:24:53] Speaker 04:
Now this language is not included in Quintron's quote, but it is in the agreement, the proposed agreement, as described in the patent rights.

[00:25:06] Speaker 04:
Patent rights are defined as

[00:25:09] Speaker 04:
the patents and or patent applications existing on the effective date which are described on Schedule A and Schedule A includes a copy of the 852 patent.

[00:25:22] Speaker 04:
The devices, the offer was made upon the devices because they were part of Quintron's use of the patented method and it was a way to measure a potential settlement.

[00:25:35] Speaker 04:
In the agreement that Cedar Sinai offered to Commonwealth, very similar terms were offered as an arm's length business negotiation.

[00:25:53] Speaker 03:
Your Honours, if there are no further questions, I surrender my time.

[00:25:56] Speaker 03:
Does the record tell us how many other demand letters Commonwealth has sent?

[00:26:02] Speaker 03:
You mentioned five suits.

[00:26:05] Speaker 04:
I am not aware of that, Your Honor.

[00:26:07] Speaker 04:
I do not believe it's reflected in the record.

[00:26:14] Speaker 00:
To resolve the question that Judge Dyke has requested reviewing the confidentiality assertions, are these your requests as well or solely Mr. Johnson's counsel?

[00:26:30] Speaker 00:
If there's a need for collaboration,

[00:26:32] Speaker 00:
I encourage you to do so just to provide a single document showing what still needs to be preserved as confidential in any opinion that's produced.

[00:26:45] Speaker 04:
Thank you, Your Honor.

[00:26:46] Speaker 04:
I believe it will need to be a collaborative effort.

[00:26:48] Speaker 00:
OK.

[00:26:51] Speaker 02:
Thank you.

[00:26:52] Speaker 00:
All right, do you have some rebuttal time?

[00:26:55] Speaker 02:
Yes, thank you, Your Honor.

[00:26:56] Speaker 02:
And I'll be brief.

[00:26:57] Speaker 02:
First of all, I appreciate the recognition, for the first time here today, that at least the contributory claim had no merit from the outset.

[00:27:06] Speaker 02:
It didn't.

[00:27:07] Speaker 02:
It didn't then, and it didn't today.

[00:27:09] Speaker 01:
Well, I think you make a good point.

[00:27:10] Speaker 01:
But the fact that one claim might have been approval doesn't compel the award of attorneys, does it?

[00:27:18] Speaker 02:
No, it's a totality of the circumstances analysis, and it certainly adds into the mix of the totality of the circumstance.

[00:27:25] Speaker 02:
But it certainly does add into it in a strong way in this case.

[00:27:29] Speaker 02:
And in particular, what's also reflective here is that that claim, we talked about what did and did not happen in the prefiling investigation.

[00:27:40] Speaker 02:
And one thing that should have been clear from the prefiling investigation was that these devices were in the prior

[00:27:46] Speaker 02:
was from the patent markings on the breath test kits, and the identification on the patent and suit of the accused devices, the Quintoron gas chromatographs, and from Tom Welles' own possession.

[00:27:59] Speaker 01:
These things should have been... I don't know if there's any question that it was known that this was in the prior, and it looks as though this one claim was frivolous, the contributory infringement claim, but that doesn't get you home.

[00:28:12] Speaker 02:
Yeah, in addition to that, the direct infringement claims shouldn't have been filed either because those claims required that somebody had to perform each of the steps of the method claims.

[00:28:22] Speaker 02:
And that plus the inducement claims, which under any reading of ACMI, the case was not dependent on the inducement claims either.

[00:28:32] Speaker 02:
It was a totality of the circumstances and analysis that the district court failed to conduct.

[00:28:37] Speaker 02:
And under the Octane Fitness case, under a mind-run analysis, this case certainly stands apart for a variety of reasons and should have been held as an exceptional case.

[00:28:48] Speaker 02:
Thank you.

[00:28:50] Speaker 00:
Thank you.

[00:28:50] Speaker 00:
Thank you, counsel.

[00:28:52] Speaker 00:
That concludes the argued cases for this morning.

[00:29:04] Speaker 04:
The honorable court is adjourned for May today.