[00:00:34] Speaker 02: Counsel Frink? [00:00:37] Speaker 02: Thank you. [00:00:38] Speaker 02: I said Leiter. [00:00:39] Speaker 02: Am I pronouncing that correctly? [00:00:41] Speaker 02: Is it Lito or Leiter? [00:00:42] Speaker 00: That's the way I say it. [00:00:45] Speaker 00: He's a nice guy. [00:00:47] Speaker 00: He's never corrected me. [00:00:49] Speaker 02: So you have reserved five minutes for your rebuttal. [00:00:53] Speaker 00: Yes, Your Honor. [00:00:54] Speaker 02: OK, you may proceed. [00:00:56] Speaker 00: Well, please, the court, I'll start out with the positive thing. [00:01:00] Speaker 00: The judge and I both agree. [00:01:02] Speaker 00: that this case has to do with Form 18. [00:01:06] Speaker 00: As it happens, December 1, Form 18 went out the window. [00:01:14] Speaker 00: And I wasn't among the Russia people the day before to file this case. [00:01:18] Speaker 00: This case was filed long before that. [00:01:20] Speaker 00: And in fact, Twombly and Igo do not frighten me. [00:01:26] Speaker 00: But this case meets the minimum [00:01:30] Speaker 00: and exceeds the minimum requirements of Form 18. [00:01:37] Speaker 00: The judge, in her opinion, makes some statements which unfortunately I don't agree with. [00:01:52] Speaker 00: The court talks about the amended complaint [00:02:00] Speaker 00: stating that there was a cooperation between CBS and CBS Interactive. [00:02:06] Speaker 00: I'm sorry. [00:02:07] Speaker 00: It does not say that. [00:02:08] Speaker 00: It never said that. [00:02:09] Speaker 00: It didn't imply it or suggest it. [00:02:12] Speaker 00: In fact, the complaint discusses the process claims and the systems claims separately. [00:02:21] Speaker 00: And for each claim, there is an allegation of direct infringement [00:02:30] Speaker 00: In the case of CBS Interactive, they hire an independent contractor to do certain tests for them. [00:02:41] Speaker 00: That's their direct infringement. [00:02:43] Speaker 03: Is that joint direct infringement? [00:02:45] Speaker 00: I'm sorry. [00:02:46] Speaker 03: Is that joint direct infringement? [00:02:47] Speaker 00: No, that's direct infringement because it's true. [00:02:52] Speaker 00: They're called independent contractors, but they're not independent. [00:02:56] Speaker 00: Okay, they're under the control of CBS Interactive. [00:02:59] Speaker 03: Isn't that then bringing Akamai into play because it's direction or control of an independent contractor? [00:03:05] Speaker 03: I mean, it's joint infringement under 271A, but that is joint infringement. [00:03:09] Speaker 03: I mean, it's under Akamai when you start talking about direction or control. [00:03:14] Speaker 00: Yes, and I cite Akamai. [00:03:19] Speaker 00: You cite Akamai? [00:03:21] Speaker 00: If I'm having my house painted, [00:03:25] Speaker 00: I bring in an independent contractor. [00:03:27] Speaker 00: He doesn't paint in any color he wants. [00:03:30] Speaker 00: He doesn't paint the rooms in the order that he desires. [00:03:33] Speaker 00: He's under my control. [00:03:34] Speaker 03: I understand. [00:03:36] Speaker 03: I agree that it's under 271A, but the very point that you're citing Akamai and talking about direction of control, that brings into play joint infringement. [00:03:47] Speaker 03: Akamai is a joint infringement case. [00:03:50] Speaker 00: Well, but the holding is that [00:03:55] Speaker 00: If another party is under the control of the first, that's a basis for direct infringement. [00:04:07] Speaker 03: I agree. [00:04:08] Speaker 03: I agree. [00:04:09] Speaker 00: Direct infringement. [00:04:10] Speaker 03: But you have a joint infringement theory. [00:04:13] Speaker 03: So what I'm saying is... Your direct infringement allegation is based on a joint infringement theory relying on Akamai, right? [00:04:21] Speaker 03: Correct. [00:04:22] Speaker 03: Okay. [00:04:22] Speaker 00: Thank you. [00:04:23] Speaker 00: I'm sorry. [00:04:24] Speaker 00: Okay. [00:04:24] Speaker 00: So that's with respect to CBS Interactive. [00:04:30] Speaker 00: Now, everybody agrees, including CBS and CBS Interactive, that CBS owns CBS Interactive. [00:04:39] Speaker 00: And being the overall corporation, they say to CBS Interactive, I want to run this TV program and I want you to go in and take care of everything. [00:04:53] Speaker 00: So again, we have this chain of control. [00:04:57] Speaker 00: CBS controls CBS Interactive, which controls the independent contractor. [00:05:03] Speaker 00: And as I say, this is not a matter of cooperation, because again, with my painter, he doesn't cooperate with me. [00:05:13] Speaker 00: Once he gets paid, he does what I tell him. [00:05:16] Speaker 03: I'm not sure how much it came up in the court's opinion below, but I noticed that your claims have a step of [00:05:22] Speaker 03: providing a user input device other than a personal computer. [00:05:26] Speaker 03: How does your First Amendment complaint deal with that, and who is performing that step? [00:05:33] Speaker 00: Actually, if I may add the tab on that. [00:05:43] Speaker 00: That's a good point. [00:05:45] Speaker 00: It was raised during the proceedings. [00:05:52] Speaker 00: First of all, that's claim interpretation, which was not done. [00:05:57] Speaker 00: But more important, in the blue brief at page 86 at the bottom, if I may read it, it says, neither specification nor the asserted patent state the requirement that an infringer of any claim method or system must provide input devices to control [00:06:21] Speaker 00: entities. [00:06:22] Speaker 00: In fact, both specifications state for an individual who owns and uses, so the individual owns it, the person that's doing it. [00:06:37] Speaker 00: CBS didn't say to him, oh here, here's a device. [00:06:42] Speaker 00: It's not the best wording in the world and I wouldn't have chosen it, but the specification clarifies that the [00:06:49] Speaker 00: CPS or CPS Interactor or even the independent contract is required to say, here, here's a device that uses this device. [00:07:00] Speaker 00: That appears in both patents. [00:07:02] Speaker 03: So you're saying the specification doesn't say that that's required. [00:07:05] Speaker 00: Right. [00:07:06] Speaker 03: But your claim says providing user input. [00:07:08] Speaker 00: For an individual who owns or uses a single response, the identified response such as a serial number is automatically included in the user's response. [00:07:19] Speaker 00: I'm saying that the specification actually provides a basis for understanding that providing doesn't mean that the CBS, CBS interactive provided it. [00:07:35] Speaker 00: They provided them themselves. [00:07:37] Speaker 00: I would have chosen that wording. [00:07:39] Speaker 00: But as I say, of course we don't have claim construction in the complaint, but [00:07:47] Speaker 00: A claim construction would support what I'm saying. [00:07:53] Speaker 03: So even assuming for a minute that I agree with your claim construction that providing for a user an input device means the user provides his own input device. [00:08:03] Speaker 03: Correct. [00:08:04] Speaker 03: That's another kind of joint infringement theory to support your direct infringement under ACMI. [00:08:11] Speaker 03: I mean, that would be a step performed by a user. [00:08:14] Speaker 03: Yes, yes. [00:08:16] Speaker 02: Who provides the identifier code? [00:08:21] Speaker 00: Well, that's inherent in the device. [00:08:25] Speaker 02: And in these modern times, it would be... If the user's providing his or her own device, then how would the identifier code be in that device? [00:08:39] Speaker 00: It's inherent in the device, and the purpose [00:08:45] Speaker 00: For example, with a TV show of the identifier device is to prevent somebody repeatedly voting or participating and causing a problem. [00:08:59] Speaker 02: So with respect to the app, CBS, do you know what that device is? [00:09:07] Speaker 00: Cell phone. [00:09:09] Speaker 00: Sending text messages. [00:09:12] Speaker 02: And that cell phone has the identifier code already in it? [00:09:16] Speaker 00: Yes. [00:09:17] Speaker 00: I'm sure you get text messages from people and you take a look and you say, oh, it's from Judge so-and-so. [00:09:28] Speaker 00: That's the ID. [00:09:33] Speaker 00: There was another interesting point raised by the district judge, which suggests that [00:09:42] Speaker 00: the specific relationship between the claim and the device was not identified. [00:09:52] Speaker 00: And, which I thought was curious because in the McNeil, McDeal case, Judge Dyke and the dissent, and this was 2007, so he anticipated that form 18 would [00:10:10] Speaker 00: at that time it was Form 16, would go away and discuss the better requirements according to the latest decisions by the Supreme Court. [00:10:26] Speaker 00: And what I find interesting is despite that he was looking for better requirements, he did not say that there should be a crime chart. [00:10:38] Speaker 00: But the [00:10:40] Speaker 00: District judge is suggesting that there be a claim chart because she's saying, oh, I didn't identify the relationship between the elements of the claim and what they're doing. [00:10:57] Speaker 00: But I did describe the whole process in two pages of how they operate, and I had separate [00:11:09] Speaker 00: uh, counts relating to that, to, to what's being done, to who's doing it and how it's resulting. [00:11:21] Speaker 00: And so, um, I, I, I don't see, uh, how form 18 escapes me. [00:11:29] Speaker 00: Uh, actually at the time that I was drafting the complaint and the, uh, first amended complaint, [00:11:38] Speaker 00: I was thinking strongly and I was very pleased that all I had to do is satisfy Form 18, which I did. [00:11:50] Speaker 00: One of the objections that the judge made about the complaint is that I didn't identify the product or line of products. [00:12:07] Speaker 00: But I described it. [00:12:08] Speaker 00: I don't know what the name it is, the electronic system that they're using, but I described what it does. [00:12:15] Speaker 00: And I think I fulfilled my obligation there. [00:12:20] Speaker 00: The final point I'd like to make now is that the judge actually, before the motion to dismiss was filed, informed me that I can either further amend the complaint or give up that right. [00:12:37] Speaker 00: Okay, and so basically I'm troubled, but the judge didn't actually evaluate it, the situation and her decision. [00:12:49] Speaker 00: She decided beforehand that either I do it before or after. [00:12:55] Speaker 00: In the decision, the judge says that I've had a repeated failure to cure deficiencies while I filed [00:13:07] Speaker 00: a complaint and a first amended complaint. [00:13:10] Speaker 00: Okay, I did it twice, but I wouldn't say that I've established repeated failures to correct the complaint. [00:13:19] Speaker 00: So I would say that if this court finds that perhaps I should have done it a little better or differently, I would like you to send it back and ask the judge to let me amend [00:13:36] Speaker 00: that confined a second time. [00:13:40] Speaker 02: Okay, you went over a little bit on your rebuttal time, but if necessary, I'll restore some time. [00:13:47] Speaker 05: Mr. White? [00:13:56] Speaker 05: Good morning, Your Honor. [00:13:57] Speaker 05: May it please the Court? [00:13:59] Speaker 05: There are at least three separate bases that this Court could affirm the lower court decision. [00:14:04] Speaker 05: And some of the statements that we just heard from Appellants Council, I think, further demonstrate the appropriateness of the district court's decision in this action. [00:14:12] Speaker 05: First, as you all discussed with him briefly, the plaintiff's complaint fails because the plaintiff has pleaded facts that not only establish that he has no cause of action, but it shows that there's actually no infringement claim to be made here, and no plausible basis to go forward with the complaint in this context. [00:14:29] Speaker 02: As you noted, each claim that's been asserted in this case recites the language of providing... So just a basic question that your experienced counsel and all, reading the complaint and the First Amendment complaint, that does not notify you what the allegations are, what the claims are, or how you should start preparing for your answer and to defend yourself? [00:14:54] Speaker 05: The answer to your question is no, Your Honor. [00:14:56] Speaker 05: I think there's too many open-ended issues in that complaint, including the First Amendment complaint. [00:15:01] Speaker 05: And I'll touch on a number of them. [00:15:03] Speaker 05: I think a good starting point is this issue of providing a user input device, which is present in every single claim that's been asserted. [00:15:09] Speaker 05: As the plaintiff's counsel said, his theory is that individual users provide their own devices. [00:15:18] Speaker 05: He said, I think I heard him say, CBS certainly does not provide user input devices. [00:15:24] Speaker 05: Because it's a requirement of every single claim here, not only does that feeding of these facts and the arguments we just heard not provide a plausible claim for relief, it actually shows there can be no infringement here. [00:15:37] Speaker 05: There's been no allegation whatsoever that CBS in any way controls or directs these individuals that are, under his theory, providing their own user input devices. [00:15:46] Speaker 05: So just on this one basis alone, where you've got to complain... Why didn't that require a claim construction about [00:15:52] Speaker 04: when it reference user input devices, a meant provided by the company or the infringer rather than individuals working for the infringer using their own devices. [00:16:03] Speaker 05: Yeah, I think there's a couple of reasons why. [00:16:05] Speaker 05: First, I think the claim language is plain on its face. [00:16:07] Speaker 05: It says providing the user input device. [00:16:09] Speaker 05: And that has to be done by the accused infringer. [00:16:12] Speaker 05: The only accused infringers here are CBS entities. [00:16:15] Speaker 05: So it directly requires that the CBS entities provide those user input devices. [00:16:19] Speaker 05: I think additional support from that can be found if you look at other parts of the claim language. [00:16:23] Speaker 04: Well, so let me ask that. [00:16:25] Speaker 04: It seems to me that he's alleging that CBS or its entities or the third party controlled contractor actually did provide those devices. [00:16:38] Speaker 05: And I don't believe that's been alleged anywhere. [00:16:40] Speaker 05: I think the only theory you heard when we specifically asked him who provides them, he said the users provide them themselves. [00:16:46] Speaker 05: If you look at the complaint, there's no allegation anywhere. [00:16:49] Speaker 03: I was going to ask you, does the complaint say that? [00:16:51] Speaker 05: It does not. [00:16:52] Speaker 05: So if you look, there's not anywhere in the complaint that says either CBS provides user input device, or even that the independent contractor provides the user input device. [00:17:01] Speaker 05: There's no allegation anywhere of anybody providing the user input device. [00:17:05] Speaker 05: And I think we heard for the first time today the theory that the users provide their own devices. [00:17:09] Speaker 05: But again, that's not any of the named defendants taking any action. [00:17:12] Speaker 03: Is it your position that that would have had to have been in the First Amendment complaint as well as something showing direction of control? [00:17:18] Speaker 05: On the latter part, yes. [00:17:20] Speaker 05: I think, and again, this was the first time we heard today that he's confirmed that it's a theory of joint infringement. [00:17:25] Speaker 05: I think you had the dialogue with him, Judge Stoll. [00:17:28] Speaker 05: Before, to us, if you look at the complaint, it's not clear. [00:17:30] Speaker 05: Even in some of the arguments in the briefing, [00:17:33] Speaker 05: It wasn't clear to us whether he was acknowledging it was a joint infringement allegation or a direct infringement allegation. [00:17:39] Speaker 05: We heard today, I think, it's clearly acknowledged to be a joint infringement allegation. [00:17:42] Speaker 03: Just to be clear, joint infringement is a direct infringement allegation. [00:17:46] Speaker 03: Absolutely. [00:17:46] Speaker 03: When you said or, I got confused. [00:17:48] Speaker 02: Yeah, and I should just better... Well, he does allege that CBS is working in concert with the third party, correct? [00:17:55] Speaker 05: There is a conclusory allegation. [00:17:57] Speaker 05: So again, so getting back to your original question, I'll kind of address these two together here. [00:18:02] Speaker 05: So because there's multiple parties involved, there have to be allegations of direction or control. [00:18:08] Speaker 05: Here, we have just the conclusion of control. [00:18:11] Speaker 05: That's it. [00:18:12] Speaker 05: And we know that a simple conclusion that there is control is not sufficient. [00:18:17] Speaker 05: You don't have to even assume it is being correct. [00:18:18] Speaker 04: Yeah, but I mean, it's a little more than that, isn't it? [00:18:21] Speaker 04: It's an allegation that a third party contractor was hired to do testing. [00:18:26] Speaker 04: I mean, when you hire somebody, doesn't that implicitly assume you have control over them? [00:18:32] Speaker 05: I don't think so. [00:18:33] Speaker 05: And I think the simple fact that they're called an independent contractor is sort of the antithesis of somebody directing or controlling. [00:18:41] Speaker 05: And I think a little bit of background here might be helpful is the original complaint did not identify this third-party contractor. [00:18:47] Speaker 05: We wrote the plaintiff after the original complaint was filed to identify deficiencies in the complaint and explain to him a number of the problems. [00:18:54] Speaker 05: And we were the ones that told him that there's [00:18:56] Speaker 05: independent third party that does the testing for us, that we're not even responsible for the testing, if that's your theory. [00:19:02] Speaker 05: He not only, I guess, adopted that, but embraced that and put it in the amended complaint. [00:19:07] Speaker 05: But in no way did he provide facts or any support for this direction of control. [00:19:11] Speaker 05: There's no allegation that how they were hired or what they were hired to do or anything like that. [00:19:15] Speaker 04: Or if they were given specific directions on how to do the testing. [00:19:18] Speaker 04: Exactly. [00:19:19] Speaker 04: I mean, I see both your sides points on independent contractor. [00:19:23] Speaker 04: If I hire a painter, I'm sure going to tell him, [00:19:26] Speaker 04: kind of specifically what colors and things I like, but I might not tell him down to the details, cover up these nail holes, cover up the floor, all that. [00:19:33] Speaker 04: Or if I hire a housekeeper, for instance, and if I am worried about the IRS tax rules on housekeepers, I may treat her as an independent contractor by letting her decide how, when, and the like to do her job within the contours of she cleans my house every two weeks. [00:19:51] Speaker 05: And I follow on that point, but also remember here that there's another third layer of abstraction that we have here where there's these other, quote, people. [00:19:59] Speaker 05: So the people are the ones that are actually performing parts of these steps. [00:20:02] Speaker 03: And those people... Are you talking about the users for the providing step? [00:20:05] Speaker 05: I think that's what we've heard now. [00:20:06] Speaker 05: The complaint says people, other people. [00:20:08] Speaker 05: It doesn't say who they are. [00:20:09] Speaker 05: Now I think I'll call them the users, because that's what we heard today. [00:20:12] Speaker 05: You've got that third layer of abstraction that those people are not in any way tied back to the CBS entities, which are the name defendants here. [00:20:20] Speaker 05: I guess if you follow that theory, you have to allege direction of control not only of CBS over this independent contractor, but there'd have to be some sort of allegation of direction of control over these other users. [00:20:32] Speaker 05: And that is completely absent. [00:20:33] Speaker 05: That link from... Wasn't he just talking about the contractor's employees? [00:20:37] Speaker 05: Well, again, I don't know. [00:20:39] Speaker 05: There's no allegation in the complaint that it says that. [00:20:41] Speaker 04: All it says is there are people... I mean, it does seem to me that he's [00:20:43] Speaker 04: not arguing for contributory or induced infringement. [00:20:47] Speaker 04: So I don't think his complaint reaches the general audience. [00:20:51] Speaker 05: Well, we don't know that. [00:20:52] Speaker 05: So there's actually a distinction. [00:20:54] Speaker 05: If you look between the complaint paragraphs, the first four counts, I'll call them, are against CBS. [00:21:00] Speaker 05: The second four counts are against CBS Interactive. [00:21:03] Speaker 05: The first four summary paragraphs, which are 18, 25, 32, and 39 for the CBS claims, [00:21:10] Speaker 05: talk about testing, and that seems to suggest you're talking about people somehow affiliated with the independent contractor. [00:21:17] Speaker 05: But if you compare that to paragraphs 48, 55, 62, and 69, which are the summary concluding allegations for CBS Interactive, those make no reference to testing. [00:21:28] Speaker 05: So again, it's just another issue that we have is we don't even know what the theory of infringement is. [00:21:33] Speaker 05: Is it testing alone? [00:21:35] Speaker 05: Does it reach the independent people who are watching TV from their house and using their own phones to vote? [00:21:39] Speaker 05: We don't know, and that's one of the problems we have with this complaint. [00:21:45] Speaker 05: That answers your question. [00:21:46] Speaker 05: Then there is the direction of control. [00:21:48] Speaker 05: I think you have to have some sort of allegation because it is a joint infringement claim. [00:21:54] Speaker 05: You have to have that linkage from the name defendants to everybody that's involved in performing the steps, which would require that there be some allegation of direction control supported by facts. [00:22:03] Speaker 05: And it's completely absent for both the independent contractor [00:22:07] Speaker 05: and the individuals. [00:22:08] Speaker 03: And also for the individual, it's not even mentioned that you're talking about the user using your own cell phone. [00:22:13] Speaker 03: So the third party that's controlled isn't even identified. [00:22:18] Speaker 05: Correct. [00:22:19] Speaker 05: Exactly. [00:22:20] Speaker 05: Identified or explain how they're linked to CBS or somehow under the direction of control of CBS. [00:22:25] Speaker 05: So I've touched on the first two arguments I wanted to make is, one, this issue of the complaint. [00:22:30] Speaker 05: And I wanted to go back to another question you had, Judge Hughes, about claim construction. [00:22:33] Speaker 05: We talked about how I think the language is clear on its face that it requires that the name defendants provide the user input devices. [00:22:39] Speaker 05: But if you look at other language in the claims, there's indications of at least the thought of having somebody other than the name defendant perform a step. [00:22:48] Speaker 05: There's several steps that start out having somebody do something. [00:22:51] Speaker 05: So if you look through the claims in both of the patents, there's steps that start out having a user input information, having a user transmit information. [00:22:59] Speaker 05: I think that clearly shows that if the complaint or the draft or the patentee was contemplating having somebody else other than the defendant do something, they could have specified that and that would have been a way to do it. [00:23:10] Speaker 05: But to juxtapose the two different claim languages in the claims, I think it makes crystal clear that you don't need claim interpretation to find that it's the name defendants that have to provide the user input devices. [00:23:21] Speaker 05: A third point I think that I'd like to touch on briefly is this idea of identifying the systems. [00:23:26] Speaker 05: Now, we agree that in the old Form 18 world, there was precedent that said you don't have to identify the system by name or serial number. [00:23:35] Speaker 05: But you do have to at least provide some information as to the systems and processes that are involved here. [00:23:40] Speaker 05: And we think the district court got it right when she found that the allegations here, which are very high-level in summary nature that use words like electrical systems and computer processing systems, [00:23:50] Speaker 05: that that level of detail is not sufficient to provide notice as to what's actually accused. [00:23:55] Speaker 04: Well, this is where I'm troubled a little bit because I'm not sure how they would find that information because it's probably proprietary to you all without some kind of discovery. [00:24:05] Speaker 04: They've described in general, this is their pathway. [00:24:08] Speaker 04: They've described as best as they can through public knowledge. [00:24:10] Speaker 04: Here's the voting system done for this big brother television show. [00:24:14] Speaker 04: They've tried to identify all the actors. [00:24:16] Speaker 04: Doesn't that sufficiently describe the system that they think is [00:24:20] Speaker 04: infringing. [00:24:21] Speaker 04: And the short answer is no. [00:24:22] Speaker 05: And we think the district court got it right. [00:24:23] Speaker 05: And let me explain why. [00:24:26] Speaker 05: One issue we have here is timing. [00:24:28] Speaker 05: What time frame are we talking about? [00:24:31] Speaker 05: CBS has used different contractors over time. [00:24:35] Speaker 05: And so even in the range of six years that we're talking about here, we actually have used multiple independent contractors. [00:24:40] Speaker 04: Why don't we just construe it as everybody that's been using systems for this show? [00:24:46] Speaker 05: Well, again, there, I think we've got case law on our side that says, [00:24:51] Speaker 05: allegations very similar. [00:24:52] Speaker 05: There was two cases that we cited prison technologies in the Ware versus Circuit City, and there you dealt with allegations that had the same similar high-level description of a system that was found not to be sufficient. [00:25:05] Speaker 04: I think it's fair to say... How would they find out the information you're demanding of them if this was all kept secret? [00:25:12] Speaker 05: Sure, and I think that there are things, I mean, they could vote using the system. [00:25:17] Speaker 05: go through an example and say, listen, we tested out the system. [00:25:20] Speaker 05: We tried out the system. [00:25:21] Speaker 05: The public can use the system. [00:25:22] Speaker 05: It's available to the public, at least some of the steps. [00:25:26] Speaker 05: They could explain, you know, it's common in the industry to use certain types of components. [00:25:31] Speaker 05: We tried the system. [00:25:32] Speaker 05: Here's what we could discern from the outside. [00:25:34] Speaker 05: They could provide. [00:25:35] Speaker 04: I mean, at least you... But that's not going to... I mean, you were arguing that you've used different contractors in different testing companies [00:25:41] Speaker 04: When they go through and vote, that's not going to identify which contractor, which testing company you're using, is it? [00:25:46] Speaker 05: No, it wouldn't. [00:25:46] Speaker 04: It's going to identify exactly what they told you in their complaint, which is there is the show, audience members vote, votes are tallied, and the like. [00:25:55] Speaker 05: But they could have gone through and said, you know, we tested the system on such and such a date. [00:26:00] Speaker 05: And here's our experience. [00:26:02] Speaker 05: We were requested to provide this information. [00:26:04] Speaker 05: We went ahead and did it. [00:26:05] Speaker 05: We accessed a certain device. [00:26:07] Speaker 05: Here was how we transmitted the information. [00:26:08] Speaker 05: Here was the information we got back. [00:26:10] Speaker 05: Here was the voting compilation that we saw on a website or something. [00:26:14] Speaker 05: They could have done at least a minimum level of a pre-filing investigation, laid out those processes. [00:26:19] Speaker 04: I mean, honestly, that seems all entirely appropriate under an ICBAL standard. [00:26:24] Speaker 04: I just don't know that it's necessary under a Form 18 standard, which seems to provide the ability to do a very loose, high-level payday. [00:26:34] Speaker 05: Yeah, and I would have to disagree with you on at least whether Form 18 applies here. [00:26:38] Speaker 05: So let's assume it does. [00:26:40] Speaker 05: Well, so two things here. [00:26:42] Speaker 05: So if we're assuming we're back in the time when Form 18 applies, so we'll assume that. [00:26:46] Speaker 05: So we're in the proper time frame. [00:26:48] Speaker 05: Rule hasn't been obligated yet. [00:26:49] Speaker 05: Form 18 still does not apply because of the concession we heard today that it's a joint infringement allegation. [00:26:55] Speaker 04: So you have to at least specify who's doing the infringing of the different parts of the system. [00:26:59] Speaker 04: Absolutely. [00:27:00] Speaker 05: And just describing the system overall as a whole is not enough. [00:27:04] Speaker 05: Exactly. [00:27:04] Speaker 05: Who is involved? [00:27:05] Speaker 05: How are they involved? [00:27:08] Speaker 05: case law, at least at the district court level, and I would suggest at the federal circuit level in the Inray Bill of Lading that it says Form 18 was limited to a single-party actor direct infringement claim. [00:27:19] Speaker 05: When we're in the realm of multi-party direct infringement claims, Form 18 no longer applies. [00:27:24] Speaker 05: It doesn't matter what time we're in. [00:27:26] Speaker 05: We could go back 20 years from now when Form 18 was in full effect. [00:27:29] Speaker 05: It does not apply to a multi-actor direct infringement case. [00:27:33] Speaker 05: So regardless of what time we're talking about, he cannot claim the benefit of Form 18. [00:27:38] Speaker 05: And so in that world, under Twombly, Iqbal, Rule 8, I mean, Rule 8's whole premise is really too full, right? [00:27:44] Speaker 05: They have to have a plausible claim for relief. [00:27:46] Speaker 05: We've already talked about how they don't based on at least the providing step and others. [00:27:50] Speaker 05: And they have to give us proper notice of their claim. [00:27:53] Speaker 05: And we've talked about several reasons why the allegations do not meet that standard. [00:27:57] Speaker 05: So I would take issue with your question before about, [00:28:01] Speaker 05: that the complaint is sufficient under Form 18, it's not because Form 18 does not apply based on the allegations that we now have acknowledgement that they're relying upon here. [00:28:11] Speaker 05: So unless you have any additional questions, I'm at the end of my time. [00:28:14] Speaker 02: OK. [00:28:14] Speaker 02: We thank you very much for your arguments. [00:28:16] Speaker 05: Great. [00:28:16] Speaker 05: Thank you, Your Honors. [00:28:20] Speaker 02: Mr. Fink, you have right around two minutes, and we'll refer you to three, OK? [00:28:26] Speaker 00: It's more than what I need. [00:28:27] Speaker 02: Give me three minutes. [00:28:28] Speaker 00: First of all, [00:28:29] Speaker 00: The issue about the providing the device, I didn't just invent it. [00:28:35] Speaker 00: It was in my opposition brief before the district court. [00:28:40] Speaker 00: So this is not the first time it's been heard by anybody. [00:28:45] Speaker 00: Second of all, as we all know, the allegations made in the complaint should be assumed to be correct and then you later decide [00:28:59] Speaker 00: as the case proceeds, whether or not they are correct and they make sense. [00:29:03] Speaker 00: But on the face of it, they're supposed to be accepted, as I understand it. [00:29:08] Speaker 02: Counselor, what's your response to your opponent's argument that Form 18 is limited to single actor? [00:29:16] Speaker 02: And today, your concession that you're dealing with a multiple actor situation, would that take you out of your Form 18 argument? [00:29:26] Speaker 00: Your Honor, he invented that. [00:29:28] Speaker 00: There is no case that says that. [00:29:31] Speaker 00: The cases which endeavored to make Form 18 more specific said it's for direct infringement, not joint, multiple, whatever. [00:29:44] Speaker 00: It's for direct infringement. [00:29:46] Speaker 00: I have pleaded in the complaint and the first amended complaint for direct infringement. [00:29:54] Speaker 00: It doesn't matter. [00:29:55] Speaker 04: But even if that's the case, because you are accusing multiple parties here of direct infringement, don't you at least have to lay out which party infringed which part of the patent and which party infringed the other part of the patent? [00:30:11] Speaker 04: Otherwise, how would they have noticed what their actual infringing conduct is? [00:30:16] Speaker 04: I thought I did. [00:30:17] Speaker 00: I described the system. [00:30:21] Speaker 00: I said, for example, CBS Interactive [00:30:25] Speaker 00: hires controls as independent contractor. [00:30:29] Speaker 03: So under ICAR... What about with respect to the user providing his or her own cell phone? [00:30:38] Speaker 03: I just see that. [00:30:39] Speaker 03: What about with respect to the user providing his or her own cell phone? [00:30:44] Speaker 03: That was not set forth in the First Amendment complaint. [00:30:49] Speaker 00: Because we don't know. [00:30:50] Speaker 00: That's something that we would not be privy to. [00:30:54] Speaker 00: But the critical thing is that CBS Interactive, for example, hires an independent contractor to do certain measurements. [00:31:05] Speaker 00: Whether the independent contractor says, here, use my cell phone or use your own cell phone, we don't know. [00:31:13] Speaker 00: And it doesn't matter because CBS is controlling the actual testing. [00:31:22] Speaker 00: And that's clear. [00:31:24] Speaker 00: from the original complaint and the First Amendment complaint. [00:31:30] Speaker 00: CBS Interactive is saying, okay, you gave us a good price. [00:31:34] Speaker 00: All right, go. [00:31:35] Speaker 00: Here's the job that you have to do. [00:31:37] Speaker 00: So they are not, to my knowledge, participating. [00:31:43] Speaker 00: The work is being done by the independent contractor. [00:31:47] Speaker 00: The independent contractor hires people or has regular employed people. [00:31:52] Speaker 04: Well, how do we know how much control do they have over this testing process? [00:31:57] Speaker 04: Couldn't it just be they hire an independent contractor and say, here's how we want to run our program. [00:32:05] Speaker 04: You go out and do whatever you want to assure that this is going to work. [00:32:10] Speaker 00: Well, Your Honor, this is a major TV program. [00:32:16] Speaker 00: It's live. [00:32:17] Speaker 00: that the testing has to be of a nature to establish that it's a reliable system. [00:32:25] Speaker 04: Oh, I understand that. [00:32:26] Speaker 04: But isn't this the issue? [00:32:28] Speaker 04: If you hire them and say, go do testing, is that really sufficient direction and control? [00:32:34] Speaker 04: I don't think they say that. [00:32:36] Speaker 04: Or do you have, well, yeah, I know, but you didn't make any of these allegations. [00:32:39] Speaker 04: Do you have to hire them and say, here are detailed testing protocols. [00:32:43] Speaker 04: We want to find out X, Y, Z, [00:32:45] Speaker 04: run tests to all to do that according to these specifications? [00:32:49] Speaker 00: You're right. [00:32:49] Speaker 00: I don't know what those are. [00:32:51] Speaker 00: But I do know that those tests have to assure them that when they go on the air and they get live phone calls, that it's going to work. [00:33:01] Speaker 00: And I don't know how they're doing it, but it seems to me, I used to be a little bit of an engineer. [00:33:07] Speaker 00: They have to test it like a live situation. [00:33:10] Speaker 00: It's logical. [00:33:12] Speaker 00: Okay? [00:33:13] Speaker 00: Because they have to establish [00:33:16] Speaker 00: that when somebody calls, so it's not as if they're measuring just a voltage here and a voltage there. [00:33:22] Speaker 00: They have to have people call up and simulate the active system. [00:33:28] Speaker 00: I'm over time. [00:33:29] Speaker 02: You are. [00:33:30] Speaker 02: Thank you very much.