[00:00:00] Speaker 04: And we will hear argument next in number 15-1608, computer software protection against Adobe systems. [00:01:00] Speaker 01: Thank you, Your Honor. [00:01:01] Speaker 01: It may please the court. [00:01:02] Speaker 01: The district court made three errors that warrant setting aside its denial of attorney fees. [00:01:08] Speaker 01: First, it misjudged the strength of Adobe's licensed defense. [00:01:12] Speaker 01: Second, it failed to fully analyze the defense or explain why it thought this case did not stand out from others. [00:01:20] Speaker 01: And third, the district court seemed to adopt a per se rule against fees where the plaintiff drops the suit before an adjudication on the merits. [00:01:29] Speaker 04: Can I ask you this? [00:01:30] Speaker 04: I'm going to put aside the idea of a per se rule, which I will tell you I just don't find in the district court's opinion. [00:01:42] Speaker 04: Suppose for a minute that I thought when I read the crucial provision of the oracle license, which I guess we can actually talk about here, the one about function structure or operation or some phrase like that, [00:01:58] Speaker 04: There was actually some room for uncertainty about whether that language covered a accused infringer who was using an Oracle database, but could just as easily have used any other off the shelf database. [00:02:17] Speaker 04: Nothing about the asserted inventive features of the claim involved stuff going on that is the way that the [00:02:24] Speaker 04: the Oracle database was structured. [00:02:27] Speaker 04: It was put stuff in, get stuff out when you asked for it. [00:02:31] Speaker 04: And that that would be a reasonable, or at least a non-frivolous, or a non-exceptional argument to make against the asserted defense. [00:02:46] Speaker 04: At that point, and suppose we could determine that. [00:02:51] Speaker 04: Again, this is all building in assumptions. [00:02:53] Speaker 04: At what point do we say, but the district court had to do the work to explain that to us? [00:03:02] Speaker 04: Because you know, I mean, Judge Robinson referred to the obvious policy. [00:03:07] Speaker 04: She now is going to be asked to spend her time on a case that she didn't learn very much about because it resolved itself early when there's other work to be done. [00:03:21] Speaker 04: That's a real cost to the judicial system. [00:03:23] Speaker 04: So how do we think about that? [00:03:25] Speaker 01: Right. [00:03:26] Speaker 01: So if this court thought that CSP's position was reasonable on the structure, function, and operation. [00:03:33] Speaker 01: Or at least non-exception. [00:03:34] Speaker 01: Or at least non-exception. [00:03:35] Speaker 01: Whatever the difference would be. [00:03:36] Speaker 01: I think this court could make that determination in the first instance and not have to send it back to Joe Robinson to have her do the work. [00:03:43] Speaker 01: But in this case, we think that CSP's position doesn't have any merit because for two reasons. [00:03:50] Speaker 01: First, the claims themselves. [00:03:52] Speaker 01: require this step of generating the license key number using the license registration database. [00:03:59] Speaker 01: And so the claim itself necessarily implicates the structure, function, and operation of the database, because it requires using the database to generate the license key number. [00:04:10] Speaker 04: I will admit to not having found the words to capture a kind of intuition of a possible [00:04:20] Speaker 04: version of reading of that limitation. [00:04:22] Speaker 04: But one analogy, I guess, that has come to my mind, it probably has come to your mind too, is the 101 Alice analogy. [00:04:29] Speaker 04: When a computer is called for in the claim in a way that is off the shelf standard functions of computers, whether calculations or put stuff in memory, get stuff out of memory, under 101, [00:04:47] Speaker 04: In some sense, in some circumstances, that just doesn't count to change what would otherwise be an ineligible subject matter into one that is eligible. [00:05:00] Speaker 04: Why is it unreasonable, again, to use that word, to think that [00:05:06] Speaker 04: the Oracle license was drawing a line something like that. [00:05:11] Speaker 04: If you're using inventive aspects of our database, your license, but if you're just using our database the way you could use a Microsoft database or any other, that's not what we're granting you a license to do. [00:05:28] Speaker 01: I think the license of the Oracle language shows you that it's not to be interpreted that way because it draws a line between [00:05:35] Speaker 01: situations in which you're just merely interacting with an Oracle product and situations where you're accusing the structure, function, or operation. [00:05:46] Speaker 01: And it doesn't say a function that's unique to the Oracle product that no other products could do. [00:05:52] Speaker 01: It simply says anything about the structure, function, and operation. [00:05:56] Speaker 01: In this case, CSP, in addition to the claim language, specifically points out in its claim charts [00:06:03] Speaker 01: that the Oracle database is storing a hash of the information about the user's machine that's trying to unlock Adobe software. [00:06:12] Speaker 01: And so by specifically pointing to the fact that the database is storing that information, CSP's infringement allegation necessarily implicates the function and operation of Oracle's product. [00:06:24] Speaker 01: And there's just nothing in the language of the license that would make it a colorable argument to say, [00:06:31] Speaker 01: to distinguish between some functions which are more elementary and might not count in an Alice analysis and other functions that are more specific to Oracle software. [00:06:44] Speaker 01: So as Your Honor noted, this court could certainly decide on its own that CSP's position was reasonable without need for a remand. [00:06:54] Speaker 01: I think the flip side of that is that this court decides that CSP's position is unreasonable. [00:07:00] Speaker 01: that it should say that in its opinion, and then it should remand the case to the district court with instructions to decide the fee motion in light of the fact that CSP's position is objectively baseless. [00:07:12] Speaker 03: So we would be actually reaching the merits in an attorney's fees case. [00:07:18] Speaker 01: So you wouldn't reach the ultimate merits of whether fees were warranted, but what we would suggest that you could do [00:07:25] Speaker 01: is to say that it would be legal error. [00:07:28] Speaker 01: It would be an abuse of discretion to find that CSP's claim was anything but baseless, and to remand for the district court to exercise its discretion, whether given the fact the plaintiff's taken a baseless position, whether fees would be warranted. [00:07:44] Speaker 02: What you'd be looking for then is for the district court to go through and analyze the various arguments with respect to the applicable provisions [00:07:53] Speaker 02: of the license agreement 1.8, 1.9, 2.5, and so forth. [00:07:58] Speaker 01: So there's two ways. [00:07:59] Speaker 01: I mean, we would suggest that this court could do that in the first instance. [00:08:03] Speaker 01: But at a minimum, it should be remanded for the district court to do that, because the district court's opinion, as it is, doesn't go through any of that analysis. [00:08:12] Speaker 01: It just kind of says in a sentence that it thinks the arguments aren't exceptionally positive, but it doesn't explain [00:08:19] Speaker 01: anything about why I think CSP's position has any merit. [00:08:25] Speaker 01: And we've shown in our briefs here that CSP's position doesn't have any merit. [00:08:29] Speaker 01: And we've talked about the structure, function, and operation point already. [00:08:33] Speaker 01: CSP's only two other points were one, that it says the license isn't enforceable by Adobe or other third parties. [00:08:41] Speaker 01: But that's wrong for two reasons. [00:08:43] Speaker 01: It's wrong as a matter of California law, which governs this license. [00:08:46] Speaker 01: And the Rodriguez case, we cite in our brief, expressly says there's no question that a third party can enforce this type of provision. [00:08:54] Speaker 02: That's also wrong because the Oracle license itself expressly says... I'm sorry to interrupt you, but are you saying we should say something about the contract and send it back, or that we should say nothing about the contract and send it back? [00:09:09] Speaker 02: I'm sorry, about the license agreement. [00:09:11] Speaker 01: So I'm saying no to the alternative. [00:09:13] Speaker 01: I think our preference would be for this court to say something about the contract and send it back, because we feel there's really three issues about the contract here. [00:09:22] Speaker 01: We think CSP's position with respect to all of them is baseless. [00:09:26] Speaker 01: And if this court were to just send it back without any instruction, and the district court were to render a decision denying fees, it might lead to a second appeal. [00:09:38] Speaker 01: Given that the case is here now and that it's a pure legal issue, we think it makes sense for the panel right now to say something about the interpretation of those contractual provisions. [00:09:50] Speaker 03: So I guess you're saying you're looking for a statement of law from this court that it's an abuse of discretion for a district court to deny attorney's fees motions if it doesn't expressly weigh the merits or relative strength of the losing party's [00:10:08] Speaker 03: merits position? [00:10:10] Speaker 01: Yes, we think the district court has to say at least something. [00:10:14] Speaker 03: Well, this judge did say something. [00:10:17] Speaker 01: Well, the district court said, just in a sentence, it thought that the merits weren't exceptional, but there was no additional sentence explaining. [00:10:27] Speaker 01: So we think what there would have to be is at least another sentence or two explaining and saying, in particular, I think the license issue is close because of [00:10:37] Speaker 03: you know, CSP's argument that X. But we've never required that before in a denial of attorney's fees for district courts to, I guess, show all their work on why they denied it. [00:10:51] Speaker 01: I think it's still a relatively new area of the law, given the intervening decisions in Octane and Highmark. [00:10:57] Speaker 01: And what we would say is, given that there is abusive discretion review here, the quid pro quo for that is that the district court has to give some explanation for why it's exercising its discretion. [00:11:07] Speaker 01: in the way that it is. [00:11:08] Speaker 01: So if there's going to be deference, the district court at least has to say a sentence or two about which of the particular arguments it's basing its decision on. [00:11:18] Speaker 01: Because, for example, here, if the district court had based its decision on thinking that it was close, whether a third party could enforce this license or not, we think that would be an abuse of discretion, because both California law [00:11:30] Speaker 01: and the license itself are very clear that this can be enforced by a third party. [00:11:35] Speaker 04: Can I go back to what I think was my first question and your answer to it? [00:11:41] Speaker 04: I thought you had said that if we concluded that on the merits, their license position, let's say on structure function operation, was a reasonable position, that at that point [00:11:58] Speaker 04: We don't need to require the district court to say more. [00:12:04] Speaker 04: Um, and we could just affirm. [00:12:07] Speaker 01: I think that's correct, your honor, because I just think logically, I mean, what we're asking you to do on the flip side is to in the first instance, um, give some guidance about CSP's claims being baseless. [00:12:18] Speaker 01: And so I think, yes, it has to, it has to go both ways. [00:12:21] Speaker 01: Um, you know, here, of course we don't think their positions are reasonable. [00:12:25] Speaker 01: We also think to the extent there's any doubt about it that a remand is appropriate because the district court could address those issues in the first instance and should do so in some kind of reasoned way. [00:12:40] Speaker 01: I would say in addition to the failure to explain, another potential problem with the district court's opinion is that it didn't fully analyze the license issue. [00:12:48] Speaker 01: So the district court's opinion includes the footnote that says, [00:12:53] Speaker 01: It would be a waste of judicial resources to address it here where the lawsuit had been voluntarily dismissed. [00:13:01] Speaker 01: We don't think that's correct. [00:13:02] Speaker 01: As a general matter, it actually saves judicial resources for district courts to actually- Well, it's a difficult balance to draw. [00:13:10] Speaker 04: I mean, to force a judge to learn a case that is over where there has been no material [00:13:20] Speaker 04: learning precisely because the judge hasn't been involved is obviously costly in the particular case, and to have a general rule would be systemically costly, but you also have a point about the systemic disincentivizing of bad lawsuits. [00:13:40] Speaker 04: You are into your rebuttal. [00:13:41] Speaker 04: I don't know if you want to save the time. [00:13:42] Speaker 04: Yes, I'd like to save it. [00:13:43] Speaker 04: Thank you. [00:13:49] Speaker 04: Mr. Greensfield. [00:13:51] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:13:53] Speaker 00: Judge Chen, in fact, the Federal Circuit of this Court has already reached and decided the question of how much detail must go in a fee denial order. [00:14:02] Speaker 00: And that was from the Wedgetail decision. [00:14:05] Speaker 03: Right, that was several years ago. [00:14:08] Speaker 00: 576 F-3rd, 1302. [00:14:10] Speaker 00: We heard an intervening change in the sort of substantive standard [00:14:17] Speaker 00: And we heard that we get even more discretion in the trial court for the ultimate outcomes. [00:14:22] Speaker 00: But we haven't had any change in the Federal Circuit's statement of, if you will, procedural law. [00:14:29] Speaker 00: And I'll just read from the decision. [00:14:30] Speaker 00: The court has not imposed a blanket requirement that a district court provide its reasoning in attorney speed cases. [00:14:38] Speaker 00: And then there's a later sentence in the same opinion. [00:14:41] Speaker 00: And incidentally, Your Honor Judge Shaw, you were one of the panel members for Wedgetail. [00:14:45] Speaker 03: Yeah, we know Wedgetail. [00:14:47] Speaker 03: But can you respond to the other side who suggests that there should be some kind of quid pro quo now that there's a much more relaxed standard of review and the district courts are empowered with much more discretion. [00:15:01] Speaker 03: Because of all that comes great responsibility. [00:15:05] Speaker 03: And so therefore, they ought to be really showing their work and their reasoning in why they are [00:15:10] Speaker 00: denying fees. [00:15:12] Speaker 00: I wish I could answer with another quote from Uncle Ben and Stan Lee, but I will simply say that under Wedgetail, there already was an abuse of discretion standard that was already in existence for the overall determination of the award of attorney's fees. [00:15:27] Speaker 00: So in that sense, it's a continuum. [00:15:28] Speaker 00: Nothing has changed in that. [00:15:31] Speaker 00: There are some tweaks, and that's it. [00:15:34] Speaker 00: Later in the Wedgetail decision, it's the grant of a fee motion [00:15:38] Speaker 00: that calls for some extra reasoning. [00:15:41] Speaker 00: And let me not discount what Judge Robinson said and what she did. [00:15:44] Speaker 00: Recall, of course, she's been on the bench for a quarter century. [00:15:48] Speaker 00: She's seen a lot of patent cases. [00:15:50] Speaker 00: She's seen the good, the bad, and the ugly. [00:15:54] Speaker 00: And what she did is she actually spent five pages explaining her point of view. [00:16:00] Speaker 00: After explaining, well, within the five pages, she explained the rule of law she was applying. [00:16:06] Speaker 00: And we know from the Cooter decision [00:16:08] Speaker 00: that when the judge states the rule of law correctly and gives substantial justification for the ultimate conclusion, then there's affirmance. [00:16:19] Speaker 00: There's no use of discretion. [00:16:21] Speaker 04: Can you just remind me, is part of the discussion in the district court's opinion a discussion of the licensed defense, as opposed to just referring to there was a licensed defense and then [00:16:39] Speaker 04: your client drop the case or something? [00:16:41] Speaker 00: It's not explicit. [00:16:42] Speaker 00: And if I can paraphrase what Judge Robinson said, she said, I read the record. [00:16:47] Speaker 00: I read all the briefs. [00:16:49] Speaker 00: I know when I see it, and I don't see it here. [00:16:51] Speaker 00: She didn't actually walk through 1.8, 1.9, 2.5. [00:16:55] Speaker 00: I agree with that. [00:16:58] Speaker 00: That's actually correct. [00:16:59] Speaker 00: But of course, that was all before her. [00:17:01] Speaker 00: And when there's any ground that appears in the record that would support the ultimate determination on attorney's fees, [00:17:09] Speaker 00: there should be affirmance. [00:17:10] Speaker 00: That's also in the Wedgetail case and that's also in many other cases. [00:17:14] Speaker 00: There's a long tradition of that in Federal Circuit jurisprudence reviewing trial courts. [00:17:20] Speaker 00: And of course I'd like to go to the actual merits of licensed defense. [00:17:26] Speaker 00: What we didn't hear from Mr. Countryman in discussing the merits is that one of our primary arguments in the district court, it was the very first argument that we [00:17:35] Speaker 00: We responded to them when they first raised this defense in the middle of the case. [00:17:40] Speaker 00: The very first response was, wait a second, this is a method claim. [00:17:44] Speaker 00: See cardiac pacemakers. [00:17:46] Speaker 00: And if your honors recall, cardiac pacemakers was an en banc decision of this court. [00:17:52] Speaker 00: And it was an en banc decision on method claims particularly. [00:17:56] Speaker 00: And the ultimate holding was that a limitation to a physical structure within a patent claim [00:18:03] Speaker 00: does not make the structure a component, a quote unquote component of a method claim. [00:18:10] Speaker 00: So what that means is we have a head start in rebutting and responding and shooting down the licensed defense because this court has already said that the physical structure named in a method claim step is not a so-called component of a method claim. [00:18:26] Speaker 00: Now let's come back to the issue of first impression that would otherwise have been in front of the district court, which is the interpretation and application of this license agreement. [00:18:36] Speaker 00: The exact words that we did not hear again in Mr. Countryman's argument, which were in section 2.5, are the words based on. [00:18:47] Speaker 00: What we heard him say is, quote, I think I'm quoting correctly, when you're accusing the structure and function and operation, et cetera, et cetera. [00:18:56] Speaker 00: The language of the agreement is very precise. [00:18:58] Speaker 00: It says to the effect of when your allegations are based on. [00:19:05] Speaker 04: Which provision are you reading from? [00:19:07] Speaker 00: Still in section 2.5. [00:19:08] Speaker 00: In section 2.5, if you drill down to I think it's part B or 2 near the very end, there's the statement. [00:19:21] Speaker 04: For purposes of clarity sentence? [00:19:23] Speaker 00: That's right. [00:19:23] Speaker 00: Let's call that the proviso. [00:19:25] Speaker 00: So the proviso says the third party cannot avail itself of this provision. [00:19:33] Speaker 00: I could open the page, but the third party cannot avail itself of this provision if there's mere interaction and the allegation of infringement is not based on the structure, function, or operation of the oracle product. [00:19:51] Speaker 00: So this was a difficult [00:19:54] Speaker 00: exegesis exercise, certainly. [00:19:56] Speaker 00: We think we had the better of the merits. [00:19:58] Speaker 00: We've never accused Adobe of raising a frivolous licensed defense. [00:20:01] Speaker 00: We simply had a belief, and that belief is recorded in the record, that we would win the licensed defense when and if it were ultimately tested. [00:20:11] Speaker 00: So of course there was a dismissal. [00:20:13] Speaker 00: The dismissal was for economic reasons and not for fear of the merits. [00:20:17] Speaker 00: So where does that leave us? [00:20:25] Speaker 00: Adobe writes the software that goes into the so-called generating the license key claim element. [00:20:35] Speaker 00: Adobe writes the software. [00:20:38] Speaker 00: That's in the record at A538. [00:20:41] Speaker 00: So because of that fact, the application of the agreement to the facts would not have resulted in Adobe's victory on the license defense. [00:20:49] Speaker 00: Of course, there are other issues raised in the briefing. [00:20:51] Speaker 00: I'm available to answer any questions on those. [00:20:54] Speaker 04: Can I go back to a legal discussion that you were having, particularly with Judge Chen, about Wedgetail? [00:21:02] Speaker 04: Don't we have some cases that do say, well, there's no blanket requirement that a district court in denying fees explain why? [00:21:16] Speaker 04: Sometimes we have said, there's enough here that we will remand for an explanation [00:21:25] Speaker 04: where there's just no explanation dealing with something that seems to us pretty serious, a pretty serious basis for a claim for fees. [00:21:37] Speaker 04: Obviously, almost everything is pre-highmark, pre-octane, but nevertheless, don't we have such cases? [00:21:47] Speaker 00: I'm not familiar with that. [00:21:48] Speaker 00: I don't recall any case of that nature being cited. [00:21:52] Speaker 00: I think, gratuitously, we have had observations that, in denying fees, there had been a statement of reasons. [00:22:00] Speaker 00: But I don't think that there is any watering down of the Wedgetail statement that we don't have to have. [00:22:06] Speaker 04: But even the statement by Wedgetail is about no blanket requirement. [00:22:10] Speaker 04: That doesn't mean we will never do this. [00:22:14] Speaker 04: We can't ever do this. [00:22:16] Speaker 04: Sometimes an explanation is necessary for us to figure out. [00:22:21] Speaker 04: Because we do not see a reason on which fees could have been denied, so you have to tell us if there is. [00:22:28] Speaker 00: I agree with your honor. [00:22:29] Speaker 00: You actually pin it right in the bull's eye. [00:22:32] Speaker 00: It's when the record doesn't reveal a rational basis for not awarding fees that there should be a remand for explanations. [00:22:41] Speaker 04: But why should the standard be that demanding, I guess? [00:22:47] Speaker 04: On a discretion standard, a district court can say, [00:22:51] Speaker 04: No, I don't think that this is enough of a reason. [00:22:57] Speaker 04: Some other district judge might think it's enough of a reason. [00:23:02] Speaker 04: If we applied a standard that said we see a reason that a district court could have relied on to deny fees, aren't we essentially exercising a discretion that doesn't belong to us? [00:23:18] Speaker 00: No, Your Honor, you're testing the boundaries of discretion that was available to the district court. [00:23:23] Speaker 00: It still preserves the hypothetical scenario, Your Honor mentioned, where maybe there is one district judge who would award fees under these facts, but another district judge would deny fees on these facts. [00:23:35] Speaker 00: If there's a sound basis, if you can connect the dots and lead to either this result or that result, then that means that this court is fully capable of affirming without requiring a remand. [00:23:48] Speaker 00: No, before I walk off, I don't want to forget one point, which is the voluntary. [00:23:56] Speaker 04: What do you make of the policy point that the district court made here, which obviously has some real force, but it has a, there's another side to it. [00:24:09] Speaker 04: The side about the potentially systemically costly operation of [00:24:18] Speaker 04: bringing lawsuits that get settled before the district judge has had to get involved. [00:24:28] Speaker 04: And therefore, any fee request would impose on the district judge work that would be substantially greater than if the district judge already knew, had some real familiarity with the case. [00:24:43] Speaker 00: If I understand the question, if I can rephrase it, Your Honor, [00:24:47] Speaker 00: What do I make of the policy of not forcing a district court to gain intimate familiarity with the merits when the case has already been dismissed just to assess a fee motion? [00:24:59] Speaker 00: Am I? [00:25:00] Speaker 04: Right. [00:25:00] Speaker 04: What I think Judge Robinson said about a waste of judicial resources by having to scrutinize, to learn more about the case than the work on the merits of the case, the pre-dismissal, [00:25:17] Speaker 04: parts stage of the case had required the judge to do. [00:25:23] Speaker 04: And it's clearly a cost. [00:25:26] Speaker 04: I think sometimes used the phrase, or at least some courts have used the phrase of having a burdensome mini trial on the fee request. [00:25:36] Speaker 04: But there's a set of cases in which, precisely because the district court has not had to become familiar with the case, [00:25:43] Speaker 04: And it goes away before that happens. [00:25:46] Speaker 04: Those costs are greater. [00:25:47] Speaker 04: On the other hand, that seems like a window for exploitation. [00:25:52] Speaker 00: Well, there's nothing new under the sun about one policy having competing outcomes from another policy. [00:25:59] Speaker 00: And I think we acknowledge that in our briefing. [00:26:00] Speaker 00: There's the deterrence policy, which is in tension with the policy in favor of resolution of disputes in the shadow or in the wake of a voluntary dismissal. [00:26:10] Speaker 00: And so district courts are in the best position, and the Supreme Court has said district courts are in the best position to weigh those competing policy concerns. [00:26:18] Speaker 00: In fact, in Octane and then repeated in Comhill, a case cited by Adobe, there is a statement that once a court determines that a case is exceptional, then discretion triggers to decide whether to award fees. [00:26:36] Speaker 00: So even the Supreme Court doesn't believe that the [00:26:40] Speaker 00: the policy in favor of deterrence should overshadow and eclipse all other policies. [00:26:45] Speaker 00: And here there was a voluntary dismissal. [00:26:47] Speaker 00: And so my final observation would be we haven't found and we haven't seen from Adobe any case in which this court, in a presidential opinion, affirmed the grant of attorney's fees after voluntary dismissal before any merits rulings and in the absence of litigation misconduct. [00:27:08] Speaker 00: and then even more strongly for our case, there's not a single case on the record that we could find or that's been shown to us where this court has reversed a district court's denial of fees in the wake of a voluntary dismissal period. [00:27:26] Speaker 04: Thank you, Your Honor. [00:27:33] Speaker 04: Mr. Countryman, you have almost two and a half minutes. [00:27:41] Speaker 01: First, with respect to the notion that the district court has to explain reasons for its decision, in the gray brief, pages 18 and 19, we cite some cases on that. [00:27:53] Speaker 01: For example, the Supreme Court's decision in the Hensley case stresses that in the context of fee decisions under 42 USC 1988, that a district court must quote, provide a concise but clear explanation of its reasons, and in addition, [00:28:11] Speaker 04: Can you remind me, that was not about whether somebody was prevailing or whether to award fees, but Hensley was about the calculation, right? [00:28:23] Speaker 04: I believe that's correct. [00:28:25] Speaker 01: And in addition, there's a case from this court, the SFA case under 285, which [00:28:32] Speaker 01: I think affirmed a denial of fees in that case, but noted that, quote, if there's something, quote, in the district court's ruling to indicate the court gave the appellant's arguments scant attention, unquote, that that might be a basis for vacator. [00:28:48] Speaker 01: And that's what we think we see here. [00:28:51] Speaker 01: With respect to Mr. Greenspoon's point, [00:28:54] Speaker 01: about the based-on language in the section 2.5 of the license. [00:29:00] Speaker 01: A couple things. [00:29:01] Speaker 01: First of all, there could be no infringement of these claims without the accusation against the Oracle database. [00:29:08] Speaker 01: The claims explicitly require using a database. [00:29:11] Speaker 01: The only database that CSP ever pointed to is an Oracle database. [00:29:16] Speaker 01: Its claim charts explicitly point to the fact that the Oracle database stores information [00:29:22] Speaker 01: So certainly CSP's infringement allegations were based on that Oracle database, because it was explicitly an infringement choice. [00:29:30] Speaker 01: In addition, with respect to the cardiac pacemaker's case, we cite the cases at pages eight and nine of our gray brief that say that for a method claim, if there are structures recited in the claim, to show infringement in the claim, you have to show use of those structures. [00:29:44] Speaker 01: And that's precisely what they had to do here. [00:29:47] Speaker 01: And so their infringement allegation was based on an accusation against those structures. [00:29:51] Speaker 01: Third, with respect for the dismissal being for economic reasons, I'd just note that the proffered economic reason was a license that was given over five months before they dropped the suit against us. [00:30:03] Speaker 01: In those intervening five months, we had to take expert depositions, brief time construction, brief summary judgment, so the timing doesn't line up for them on the economics. [00:30:12] Speaker 01: And finally, if I could just make a closing point, this is an important case. [00:30:17] Speaker 01: You know, the Supreme Court has said in Highmark, [00:30:20] Speaker 01: that there still is appellate review of fee denials. [00:30:23] Speaker 01: It might be for abuse of discretion, but there still is appellate review. [00:30:27] Speaker 01: Here you have a plaintiff who has truly pressed a frivolous claim. [00:30:31] Speaker 01: And if a plaintiff can just drop a claim and have a safe harbor, it's going to encourage bad behavior because we have this situation where the plaintiff can go after multiple other small companies, get some nuisance settlements, which we think the settlement amounts here reflect. [00:30:47] Speaker 01: and then go after the big player, and basically push the case with impunity against that big player, trying to extract a settlement. [00:30:55] Speaker 01: And at the end of the day, if it doesn't work out, it can drop the case and know it has a safe harbor. [00:31:01] Speaker 01: We think that's inappropriate. [00:31:03] Speaker 01: It sends the wrong incentives. [00:31:05] Speaker 01: It doesn't deter bad conduct. [00:31:07] Speaker 01: It leaves parties like Adobe in a situation where they're out a significant amount of fees. [00:31:11] Speaker 01: And we think it's important that this court exercise that appellate [00:31:17] Speaker 01: function that was still recognized at Harkman and Highmark and vacate and remained here. [00:31:23] Speaker 01: Thank you. [00:31:26] Speaker 04: The case is submitted.