[00:00:00] Speaker 02: In 1049, Kaspersky versus device security. [00:00:53] Speaker 02: Are you Mr. Knizer? [00:01:09] Speaker 00: Good morning. [00:01:09] Speaker 00: May it please the court? [00:01:10] Speaker 00: My name is Casey Knizer, and I represent the appellant, Kaspersky Lab, in this case. [00:01:16] Speaker 00: I'm really used to, in patent cases, [00:01:20] Speaker 00: having the main dispute be over a point of claim construction. [00:01:24] Speaker 00: It usually sorts out very quickly when looking at a claim by a patent owner, as was made in this case, that there is one or more terms where infringement really turns on the interpretation of those. [00:01:38] Speaker 00: And my expectation in this case, frankly, was that the term network provider, which jumps out from the claim that was asserted, claim one, [00:01:48] Speaker 00: that that would be the point of contention, that there would be some interpretation of network provider that could encompass us, a software company that does not issue phones to people, that does not have a network that people use to track their phones, that there would be some such construction. [00:02:07] Speaker 00: And I was very surprised when we got to the point in the case where we were to exchange claim terms that there was no construction proposed [00:02:16] Speaker 00: and that the construction that I saw in the specification, that it was a wireless carrier, such as Verizon or T-Mobile or AT&T, that the viceroy simply agreed with that. [00:02:29] Speaker 00: And shortly after, before we even submitted these things to the court, I thought, well, I will certainly win summary judgment if that's the case, because it's impossible to be direct infringer for us unless... [00:02:42] Speaker 02: I think we've read the facts. [00:02:45] Speaker 02: But if you end with, we certainly expected summary judgment, that doesn't get you very far when we're looking at overturning the district courts under an abuse of discretion standard, finding an exceptional case. [00:02:59] Speaker 02: So whether or not you had a pretty nearly slam dunk case on summary judgment doesn't get you there, does it? [00:03:05] Speaker 00: No, absolutely. [00:03:05] Speaker 00: And that's what I was going to say next, is that at that point, that's all I thought it was. [00:03:10] Speaker 00: But the reaction that [00:03:12] Speaker 00: that came from after the exchange of claim terms was all of a sudden out of the blue, we're dismissing everything. [00:03:17] Speaker 00: We're giving you a covenant not to sue. [00:03:19] Speaker 00: You just have to promise not to pursue your rights as a prevailing party. [00:03:24] Speaker 00: You have to waive all claims. [00:03:25] Speaker 00: And in the course of that discussion, before I could agree to that, I felt like I need to satisfy myself. [00:03:32] Speaker 00: There was some interpretation of network provider that could make us one. [00:03:38] Speaker 00: Because how else could we be a directed fringer? [00:03:40] Speaker 00: And what I got in a letter from them was, we have always known that you're not a network provider. [00:03:47] Speaker 00: That was the thing that changed. [00:03:49] Speaker 02: So then you have a theory, but you have more than one theory. [00:03:51] Speaker 02: It wasn't just a direct infringement theory, right? [00:03:54] Speaker 00: That's correct. [00:03:55] Speaker 00: There was direct and indirect. [00:03:57] Speaker 03: However, the starting point for me in the realm of direct and indirect and literal and equivalence. [00:04:06] Speaker 00: Correct. [00:04:06] Speaker 03: There's a lot of theories for a claim whose language does not say that the network provider has to be the one doing these things. [00:04:16] Speaker 03: It says that things have to happen at the site operated by the network provider. [00:04:21] Speaker 00: Correct. [00:04:21] Speaker 00: They have to happen at the site. [00:04:23] Speaker 00: That's correct. [00:04:25] Speaker 00: The way the claim is written, the subscriber is somehow contacting the network provider, providing certain information, and then get certain responses back in response to [00:04:35] Speaker 00: this dialogue that takes place. [00:04:37] Speaker 03: How much of your fee request was for work done before the moment that they said they were going to dismiss or even did dismiss? [00:04:50] Speaker 00: If I had to estimate, I would say, this is just an estimate, but I would say about half because the work that we did [00:05:03] Speaker 00: Actually, most of it would have been before, because up to that point, we were responding to infringement contentions that we had received and doing invalidity contentions. [00:05:13] Speaker 00: What was the main part? [00:05:16] Speaker 02: What was the main part? [00:05:16] Speaker 02: The invalidity contentions, correct? [00:05:18] Speaker 02: That was your case. [00:05:19] Speaker 00: Correct. [00:05:19] Speaker 00: Responding. [00:05:20] Speaker 00: And then we also, after- You're not responding. [00:05:23] Speaker 02: You're the DJ plaintiff. [00:05:25] Speaker 02: You had to come up with invalidity contentions, correct? [00:05:29] Speaker 00: Correct. [00:05:30] Speaker 00: As a DJ plaintiff, [00:05:31] Speaker 00: We did, but those were only in response to infringement contentions served by the patent owner in this case. [00:05:40] Speaker 03: I'm sorry, you filed the lawsuit. [00:05:43] Speaker 00: Absolutely. [00:05:44] Speaker 00: However, in the Southern District of Florida, as in most courts, if the patent owner counterclaims for infringement, the disclosure flips, and they become the first to disclose their infringement contentions. [00:05:57] Speaker 00: And the case proceeds almost exactly as it would have been [00:06:00] Speaker 00: if they had been the original plaintiff. [00:06:03] Speaker 02: So at what point do you have to come forward with your invalidity content? [00:06:06] Speaker 00: As soon as they serve their infringement contentions, they are a response. [00:06:12] Speaker 00: In the schedule, it's so many days after receipt, they must be served. [00:06:20] Speaker 00: So the trouble that I have with the district court's order is that I don't believe there was any dispute in device of purity's response to my motion. [00:06:31] Speaker 00: that they had any direct infringement theory at all. [00:06:33] Speaker 00: They said, we can argue about it, but let's talk about these other theories. [00:06:37] Speaker 02: I have a problem with that because... Well, I understand you have a problem with that. [00:06:42] Speaker 02: The question is whether or not the district court abused its discretion and not having the same problem you have. [00:06:46] Speaker 02: I understand. [00:06:47] Speaker 02: In that regard, is it true? [00:06:48] Speaker 02: I mean, I know everybody's been citing a non-PREC case, which doesn't make everybody terrifically comfortable here. [00:06:53] Speaker 02: But there is at least one non-precedential opinion from our court that says that [00:06:59] Speaker 02: Even if one out of several theories had no basis, that's still not enough, or certainly not necessarily enough, to overturn the district court's conclusions under abusive discretion. [00:07:11] Speaker 02: So why do you have more than that going for you? [00:07:15] Speaker 00: Well, Your Honor, I believe that direct interference is the starting point. [00:07:20] Speaker 00: That was the starting point for each argument that I made in district court. [00:07:24] Speaker 00: But I didn't stop there. [00:07:27] Speaker 00: The direct infringement case had this difference that there was an admission that they had known from the beginning that we were not a net provider. [00:07:36] Speaker 00: That seems to be a very clear statement that the direct infringement case puts a positive. [00:07:41] Speaker 03: I'm sorry, except on there. [00:07:42] Speaker 03: And by direct, you're including both literal and equivalence? [00:07:45] Speaker 03: Or by direct, do you mean 271A as opposed to B and C? [00:07:51] Speaker 03: So 271A covers both literal and equivalence infringement. [00:07:55] Speaker 00: Correct. [00:07:56] Speaker 03: So the fact that they say, we knew you guys were not yourselves a network provider doesn't mean that they didn't have a reasonable basis for a theory of 271A infringement. [00:08:08] Speaker 00: I agree that it's possible that they had a basis. [00:08:10] Speaker 00: However, in their pleadings and their contentions, they always made it sound like we were. [00:08:15] Speaker 00: They allege in their infringement contention, in the definition of a net provider, they said it was us. [00:08:21] Speaker 00: and or some other people and with respect to the doctrine of equivalence all I ever saw in any pleading was just a blanket statement that said doctrine of equivalence with no further explanation and I don't think that it's enough for a claim to be considered as [00:08:39] Speaker 00: a legitimate claim to just simply state the theory without any explanation. [00:08:44] Speaker 03: In the complaint? [00:08:46] Speaker 03: I mean, I know we have lots of pretty well-settled doctrine about having at some point in the litigation to elaborate in a reasonably detailed way about why you think something is an equivalent. [00:09:03] Speaker 03: But in the complaint? [00:09:04] Speaker 00: No, I understood. [00:09:05] Speaker 00: I was just saying that starting from the complaint, [00:09:07] Speaker 00: where it definitely seems to allege direct infringement and that we are a net provider. [00:09:15] Speaker 00: And then in the contentions, where the same issue comes up, and in the section on document equivalence, it's at the very last page, and there's no explanation. [00:09:25] Speaker 00: It's very hard for me to respond to whatever this document equivalence theory is, because I've never seen it explained in a way that I could respond to it. [00:09:40] Speaker 00: So our position is that when the district court looked at the theory that was being asserted, that the claim itself, the steps that are involved just could not be performed by the kinds of things that vice security has come up with since, which include things like cell towers and so on. [00:10:02] Speaker 00: I think the claim is actually quite clear about what is required and [00:10:09] Speaker 00: And we've never even heard anything like what kind of a network provider or is there an action network provider anywhere. [00:10:16] Speaker 03: Can I ask you this? [00:10:16] Speaker 03: I don't remember whether this is addressed in your brief. [00:10:19] Speaker 03: But as doubtless you're aware, a year ago, this court en banc loosened the standards for multi-party action that gives rise to 271A direct infringement. [00:10:37] Speaker 03: If their theory survived under that, it would be, what would the consequence of such a conclusion, just by hypothesis, be even if they didn't have a decent theory before that? [00:10:53] Speaker 03: Under the pre, I don't know what we call it, Akamai Four or something. [00:10:58] Speaker 03: Last summer's on buck. [00:10:59] Speaker 00: So Judge Chaunter, you're saying that during the course of the lawsuit, a theory was presented that would have fit the facts? [00:11:08] Speaker 03: Under our current doctrine, now stated in last summer's Akamai Anbanq, it was always the law, because that's what explanations of law mean. [00:11:22] Speaker 03: It always was such that certain kinds of cooperation between two legally independent parties can be combined to form a basis for directing. [00:11:34] Speaker 03: Never mind what those kinds are, but it's in something more capacious as a standard than the earlier interpretation had been. [00:11:44] Speaker 03: Suppose for a minute, is the reasonableness of their complaint, the sanctionability of their litigation under 285, to be judged under the law as we now know it to be or the law as we mistakenly thought it to be during the activities in the district court. [00:12:05] Speaker 00: Well, Your Honor, I have thought about that. [00:12:07] Speaker 00: I think, subjectively, for their state of mind, it would be the law that they believe to be enforced. [00:12:11] Speaker 00: However, for purposes of this feast motion, I will concede if they have a theory that could be stated under the law as it was, or even a changed law, if they had a factual basis to make that there was some other party. [00:12:26] Speaker 00: But to bring it into context, when I filed this decree for judgment, [00:12:30] Speaker 00: they were already suing Asurion, which is another company that makes an application to find mobile devices. [00:12:37] Speaker 00: In the Asurion application, when you go to find your device, it takes you to Verizon's website. [00:12:44] Speaker 00: So there is clearly a network provider involved. [00:12:47] Speaker 00: With ours, you go onto the company's website, not any carrier, and when you find your phone, as it shows their own contentions, Google Maps finds your phone. [00:13:00] Speaker 00: They understood from the Assyrian case that it was possible, and I agree that is legitimate basis for an infringement claim, that there is some partnership with a carrier such as Verizon in that case. [00:13:13] Speaker 00: However, in this case, you can see from their own infringement contentions that there's no trace of any other party. [00:13:20] Speaker 00: So I agree that it's possible that other parties in the abstract could have been involved that could trigger the factual basis, a good faith basis for the infringement claim. [00:13:30] Speaker 00: But I've never seen any, I know that it doesn't exist, but I've never even seen why they think that that evidence was out there somewhere. [00:13:42] Speaker 00: And that's the problem. [00:13:44] Speaker 00: I say problem, but I should probably say that's what makes the case seem exceptional, because [00:13:50] Speaker 00: I think that most patent cases that are mitigated in the way that we're used to turn on a question of claim construction, which may win and may lose. [00:14:01] Speaker 00: But at least the party has some basis to think that they could win it. [00:14:05] Speaker 00: In this case, I don't understand how they could have ever thought they would prevail. [00:14:10] Speaker 00: And since I raised that point, I have not been encouraged or dissuaded from that belief. [00:14:20] Speaker 00: And I've read all the different arguments and all the different attempts to show that there is some reason to believe that it was possible. [00:14:27] Speaker 02: Well, your time is almost up, so maybe you'll have a chance to listen to Mr. Powers. [00:14:31] Speaker 02: Thank you. [00:14:44] Speaker 01: Please, the court. [00:14:46] Speaker 01: The district court conducted precisely the type of analysis that this court's precedents tell it to, which is to review the totality of the circumstances and exercise its discretion in managing its docket in its courtroom and deciding what conduct is appropriate and what conduct is exceptional. [00:15:05] Speaker 01: Most of the district court's opinion is not addressed at all by appellant's brief, by appellant's argument. [00:15:14] Speaker 01: The district court's opinion focused [00:15:16] Speaker 01: substantially on the conduct of the parties, and actually pointed out that the conduct of device security below is the type of conduct that should be lauded, not sanctioned. [00:15:28] Speaker 01: The initial licensing letter that device security sent was not the sort of heavy handed, uber aggressive licensing letter that has been chastised by some courts. [00:15:39] Speaker 01: It was quite gentle. [00:15:41] Speaker 02: No, we understand that. [00:15:42] Speaker 02: What is the reasonable basis upon which you had, the reasonable basis you had for alleging direct infringement? [00:15:49] Speaker 01: At the beginning of the case, the record supports four independent theories based on the then public information. [00:15:56] Speaker 01: Those four theories were first an induced infringement theory under then-Akamai, because there was no public information about the relationship between [00:16:08] Speaker 01: Kaspersky on the one side and a network provider on the other. [00:16:12] Speaker 01: And a key point which appellant persists in getting wrong is the question of whether they, quote, were a network provider. [00:16:22] Speaker 01: That was never an issue. [00:16:23] Speaker 01: It was never alleged. [00:16:25] Speaker 01: It was never a requirement. [00:16:27] Speaker 01: The requirements of the claims merely ask that certain signals be received at a site operated by a network provider. [00:16:36] Speaker 01: And the theory about how that could happen is very easy to understand. [00:16:40] Speaker 01: Because if we're talking about a lost cell phone or a lost iPad, the signals that are coming to and from that cell phone or iPad go through a network provider. [00:16:50] Speaker 01: By definition. [00:16:53] Speaker 01: So they're going to be going through a cell tower or going through a network provider's facilities at some point. [00:16:59] Speaker 01: Of course. [00:17:01] Speaker 01: That's how it communicates with the outside world. [00:17:04] Speaker 01: And so [00:17:05] Speaker 01: The idea that there was this impossibility to figure out how a network provider might be involved ignores the claims and reality. [00:17:14] Speaker 01: There was never an allegation that they, quote, were a network provider, because there was never a requirement that they be one. [00:17:23] Speaker 01: And if, and there was no public information on this at all, if there were a relationship between Kaspersky and Verizon, AT&T, [00:17:33] Speaker 01: That would clearly have satisfied Akamai at the time. [00:17:37] Speaker 01: Once information was produced in discovery that made clear there was no such relationship, that claim no longer became viable. [00:17:45] Speaker 01: There are three other potential claims based on the public information at the time before discovery. [00:17:50] Speaker 01: The next is the doctrine of equivalence theory, which was clearly articulated, which said you may not be operating with a network provider, but if you're performing the same functions as a network provider, [00:18:03] Speaker 01: would. [00:18:05] Speaker 01: And they clearly, all the functions of the claims are clearly being provided. [00:18:08] Speaker 01: If you walk through the steps of the claims about how you find a lost iPhone or a lost iPad, that's exactly what their website says happens. [00:18:17] Speaker 01: What was left uncertain based on the public information was which entities were playing what role in that process. [00:18:25] Speaker 01: And it was clear at some point, whether by agreement or not, that facilities operated by network providers would have been involved. [00:18:34] Speaker 01: But under Akamai, that needed to be more than just random. [00:18:39] Speaker 01: It had to be by agreement. [00:18:40] Speaker 01: And once it was learned it was not, that theory was dropped. [00:18:44] Speaker 01: Second theory, of course, was regard to Kaspersky's operating as a website. [00:18:50] Speaker 01: If that website had been hosted by Verizon or AT&T, then that would be a facility operated by a network provider. [00:18:57] Speaker 01: Kaspersky's website was plainly performing all the steps of the claim. [00:19:02] Speaker 01: There was no information publicly about that at the time. [00:19:05] Speaker 01: Therefore, at that time, once the information was produced that said that's not happening, the claim was dropped. [00:19:13] Speaker 01: And that's exactly the point the district court made, which is why there cannot be an abuse of discretion here, which is the district court concluded that the claims were sufficiently viable until discovery and the invalidity contentions were received. [00:19:30] Speaker 01: Once they were received and the claims became weaker than they were thought to be based on public information, [00:19:36] Speaker 01: The patent holder did precisely the responsible thing, which is to dismiss the claims. [00:19:42] Speaker 02: What about your friend's argument that the district court created a per se rule that DJ Quintess can't get fees for asserting invalidity contentions? [00:19:52] Speaker 01: The district court, I think, did no such thing. [00:19:54] Speaker 01: What the district court did was to say the obligation to create invalidity contentions was not caused by device security. [00:20:02] Speaker 01: It was caused by the filing of the DJ. [00:20:05] Speaker 01: That's true. [00:20:06] Speaker 01: That was responding to an argument that Kaspersky made below. [00:20:10] Speaker 01: What the district court did not say was that if the case were otherwise exceptional, that you couldn't get the cost of doing invalidity contentions. [00:20:19] Speaker 01: What the court held was it's not exceptional. [00:20:23] Speaker 01: That's what the court held. [00:20:25] Speaker 01: And there was no holding below and none required that said once a finding of exceptionality is supported, which it was not here, [00:20:35] Speaker 01: then certain types of claim recoveries can't be made by a DJ plaintiff. [00:20:39] Speaker 01: Never said, never required to be said, and not an argument made here. [00:20:44] Speaker 01: The only other quasi-legal argument that is made by appellant is the argument that if there is one claim which they contend to have been baseless, put aside the factual question about whether it was or not baseless at the time made, but others which were good, [00:21:07] Speaker 01: plausible, appropriate, not baseless. [00:21:12] Speaker 01: Is the one supposedly baseless claim by itself enough to declare the case exceptional in the presence of other claims that were sufficiently plausible? [00:21:23] Speaker 01: And there's two aspects to that that I want to make clear. [00:21:25] Speaker 01: One's a legal one and one's a factual one. [00:21:29] Speaker 01: The argument that the case your honor is referring to was precision link. [00:21:33] Speaker 01: That was actually the flipped circumstance. [00:21:36] Speaker 01: There, the district court found the case to be exceptional. [00:21:41] Speaker 01: And that finding was entitled to deference. [00:21:44] Speaker 01: And this court, in a non-precedential opinion, vacated because one of the claims was plausible and vacated for the purpose of asking the district court to find, in light of that fact, whether it was still an exceptional case. [00:22:02] Speaker 01: Putting aside the non-precedential nature of the case, which we all know what that means, that reflects the reality that one bad claim, without admitting that there was a bad claim here, does not automatically make the case exceptional. [00:22:18] Speaker 01: Here the situation is flipped. [00:22:21] Speaker 01: You have a district court decision finding no exceptional case, taking into account the totality of the circumstances as it should do. [00:22:30] Speaker 01: And the argument is made that one arguably bad claim is enough as a matter of law to compel a finding of exceptional case. [00:22:38] Speaker 03: Do they make the lesser argument that it's enough as a matter of law to compel that claim being separately addressed? [00:22:46] Speaker 01: They've not made that argument. [00:22:47] Speaker 01: They've made the argument that it was erroneous as a matter of law for the district court not to find it exceptional because of one claim they contend was bad. [00:22:55] Speaker 01: And there's no law to support that. [00:22:59] Speaker 01: And the only law that exists in the non-presidential case is not only against that, but against that in the flipped circumstance where there was a presumption of deference entitled to the district court's finding of exceptionality. [00:23:13] Speaker 01: So I think that that precision link, for whatever it means, supports the common sense view and the view that is dominant in the district courts, which is if there are good, plausible claims, [00:23:29] Speaker 01: arguing about one claim that they think is not plausible does not, as a matter of law, make the case exceptional. [00:23:36] Speaker 01: And certainly is not enough to overturn and find an abuse of discretion of a district court's decision that it is not exceptional. [00:23:45] Speaker 01: Because keep in mind, the totality of the circumstances test focuses not just on the merits of individual claims, although that's one factor. [00:23:54] Speaker 01: It focuses on the conduct of the parties, [00:23:56] Speaker 01: and all the other facts and circumstances surrounding the action. [00:24:01] Speaker 01: The district court went through all of those facts and circumstances, largely ignored by appellant, and found it was not exceptional. [00:24:10] Speaker 01: That finding is entitled to deference, and there is no legal basis to overturn it. [00:24:18] Speaker 02: Thank you. [00:24:29] Speaker 00: So now it should be perfectly clear, I think, that direct literal infringement, at least that piece, has never been explained and was certainly baseless. [00:24:41] Speaker 00: I did not take the position in briefs or here today that that is the only complaint and that this is about whether, if there's one bad apple, then the pie is rotten. [00:24:52] Speaker 00: I just started there. [00:24:53] Speaker 00: That might be true. [00:24:56] Speaker 00: Sorry? [00:24:56] Speaker 00: That might be true. [00:24:59] Speaker 00: But it's simpler just for purposes of analysis to start with direct literal and then move through the theories. [00:25:08] Speaker 00: And what I heard again was that the basis for the claim was that a network care might be hosting our website, a software company. [00:25:16] Speaker 00: You can look up information about websites and who owns those domains. [00:25:20] Speaker 00: That was an after the fact thing that I had never heard before until we got into this briefing. [00:25:26] Speaker 00: And I spared. [00:25:28] Speaker 00: the discussion of all these little conduct issues that were discussed at length in the opposing counsel's briefs, because in this case, I served no discovery. [00:25:37] Speaker 00: I noticed no depositions. [00:25:39] Speaker 00: I waited patiently until the exchange of claim terms to see if I could move for summary judgment. [00:25:44] Speaker 00: And before I could do that, they came in and dismissed everything. [00:25:48] Speaker 00: No extra expense was imposed on the patent owner in this case. [00:25:52] Speaker 00: And then when I wouldn't waive, just pursuing whether I had a claim [00:25:57] Speaker 00: for fees, I was sent a letter threatening me with sanctions because I was multiplying the proceedings. [00:26:03] Speaker 00: I didn't want to get into that because I thought that that's not really the issue. [00:26:07] Speaker 00: But to the extent that it's mentioned in the district court's order, I think the things that they discuss are statements that were made before any real proceedings took place in the case by Eugene Kaspersky on his personal blog. [00:26:22] Speaker 00: There's nothing that talks about how I handled the case in the district court that [00:26:27] Speaker 00: that I've ever seen anyone find fault with. [00:26:29] Speaker 00: I've been accused of not dropping an issue that I should drop. [00:26:33] Speaker 00: But other than that, the way this case was handled, the absolute minimum burden was placed on the patent owner. [00:26:39] Speaker 00: Because I knew from the beginning that the case was extremely weak. [00:26:42] Speaker 00: I didn't realize until this complete failure to explain the infringement case that I was forced to conclude that it was baseless. [00:26:50] Speaker 00: Not willingly. [00:26:51] Speaker 00: But that was much later when I reached that conclusion. [00:26:55] Speaker 04: That's not really an issue, is it? [00:26:59] Speaker 04: That's not an issue on this appeal? [00:27:01] Speaker 04: The accusation, the back and forth? [00:27:07] Speaker 00: No. [00:27:07] Speaker 00: I don't believe it is an issue. [00:27:09] Speaker 00: However, counsel mentioned that I had neglected to discuss the conduct of the parties during the lawsuit. [00:27:15] Speaker 00: And I, in response, said I don't see anything about the conduct of Kaspersky Lab during the lawsuit that would make us [00:27:24] Speaker 00: somehow in eligible to persuade. [00:27:26] Speaker 03: I had taken Mr. Powers simply to be saying that in the different points of opinion [00:27:31] Speaker 03: there is a little bit of discussion of the merits of the original complaint, and then of more discussion of how the litigation was conducted. [00:27:39] Speaker 03: And you, in your opening argument, had not discussed the portions of the district court's opinion that said the way they conducted themselves once the litigation was joined was OK. [00:27:51] Speaker 03: And you were focusing entirely on the threshold merits of their claim. [00:27:55] Speaker 03: That's all. [00:27:56] Speaker 03: I didn't take that as an accusation against you. [00:28:01] Speaker 00: I didn't take it so much as an accusation. [00:28:03] Speaker 00: It's more like, have we fully discussed the basis for the district court's decision? [00:28:07] Speaker 00: Because if the claim has merit, if it's not baseless, then I agree. [00:28:14] Speaker 00: These other factors are not important. [00:28:16] Speaker 00: But the part of the order, I think that if the court, for example, the district court never entertained this bad apple theory because it never reached a conclusion about whether direct little infringement was baseless. [00:28:28] Speaker 00: That was just pushed to one side. [00:28:31] Speaker 00: The question that we've been discussing here, the district court never had the opportunity to decide that.