[00:00:03] Speaker 01:
We have four arguments this morning, a pair and then two separate cases.

[00:00:09] Speaker 01:
We'll begin with number 15, 1,500 mankeys, if I've got that right, against vivid seats and fandango.

[00:00:19] Speaker 01:
Mr. Billers.

[00:00:33] Speaker 01:
Please begin.

[00:00:34] Speaker 04:
Good morning, Your Honor.

[00:00:36] Speaker 04:
I'm Anthony Billin, and I represent the appellant, Robert Manx, in this consolidated appeal.

[00:00:42] Speaker 04:
Your Honor, I believe there are two issues before the panel this morning.

[00:00:46] Speaker 04:
First, whether the trial court's decision should be vacated and the case remanded for proceeding in accordance with this court's intervening decision in the August 2015 Acme versus Limelight on mock holding

[00:01:03] Speaker 04:
And second, whether Mr. Mank sufficiently pled a cause of action for patent infringement.

[00:01:10] Speaker 01:
Can I ask you this?

[00:01:11] Speaker 01:
And those are actually, I think, slightly related questions in this sense.

[00:01:17] Speaker 01:
You don't dispute, do you, that dismissal was proper under our pre-August

[00:01:28] Speaker 01:
law of direct infringement, which may, in fact, be your best justification for having dropped the direct infringement claim until the law changed.

[00:01:40] Speaker 04:
After the Supreme Court's holding in Akamai, I believe that... I think they call it Akamai, don't they?

[00:01:49] Speaker 01:
That's how I've always pronounced it.

[00:01:52] Speaker 04:
I believe that the BMC decision was properly controlled by the district court and her dismissal was appropriate.

[00:02:02] Speaker 01:
And am I right also that the district court did not think that you had waived a direct infringement theory?

[00:02:12] Speaker 01:
period, full stop.

[00:02:13] Speaker 04:
Well, that's right, Your Honor.

[00:02:14] Speaker 04:
We had advocated that multi-party infringement or divided infringement should proceed under 271A.

[00:02:21] Speaker 04:
Our theory at the time was that it should proceed under a concerted action or actions in concert theory from the restatement second of torts.

[00:02:34] Speaker 04:
That wasn't heard, as this panel knows.

[00:02:36] Speaker 04:
by the Supreme Court who refused to entertain divided infringement or declined to hear divided infringement or 271A, but as this panel knows, found that you can't have infringement under 271B for inducement when there's no basis for infringement under 271A and remanded it back to this court.

[00:02:57] Speaker 04:
which ultimately held in August 2015 that divided infringement should occur under circumstances or may occur under circumstances broader than the BMC holding and reversed what had been the verdict for limelight.

[00:03:17] Speaker 04:
So your honor, my client is a state employee who did remote reservation services

[00:03:25] Speaker 04:
for golf courses on the side, and through that, he would manage remote inventory for the golf courses.

[00:03:33] Speaker 04:
He quickly learned that golf courses often had problems with double inventory.

[00:03:41] Speaker 01:
They kept a local inventory for walk-up golfers, and they... Can I ask you, obviously, without having had the language of our Augustan Bank opinion,

[00:03:53] Speaker 01:
in front of you, which you couldn't have had, you could not really have made factual allegations that closely tracked the wording.

[00:04:04] Speaker 01:
And if you were given the opportunity either to prove facts or to amend the pleadings, what facts would you allege that would either bring you within the

[00:04:22] Speaker 01:
the contract conditions formulation of our August en banc decision or might warrant an extension of that standard, which our August opinion also acknowledged to be possible based on particular facts.

[00:04:39] Speaker 01:
Right.

[00:04:39] Speaker 04:
The decision did hold open the possibility of revisiting theories of attribution and simply did not

[00:04:48] Speaker 04:
address joint concert liability, didn't need to address joint concert liability.

[00:04:53] Speaker 04:
From the holding in the August 2015 Acame decision, like the patent holder, like Acame, we believe discovery would show that the appellees in this case enter into service contracts

[00:05:08] Speaker 04:
with their ticketing partners.

[00:05:10] Speaker 04:
We further believe that discovery will show that appellees' ticketing partners upload inventory they select pursuant to instructions provided by appellees.

[00:05:22] Speaker 04:
Like Limelight, the appellees receive a benefit from this partnership with their ticketing partners.

[00:05:31] Speaker 04:
And like the defendant Limelight of the Pallies, in this case established, we believe, the manner in which inventory is uploaded to their system.

[00:05:43] Speaker 01:
Can I go back to the, I guess, the waiver argument that, I guess, it's Vivid Seats makes that Fandango doesn't make, I think?

[00:05:56] Speaker 01:
Correct.

[00:05:57] Speaker 01:
on February 28th, 2014, did you amend the complaint and tell me if I'm wrong on the premise to delete a reference to direct infringement?

[00:06:09] Speaker 04:
At that time, we believe that the controlling law from this circuit was multi-party infringement should proceed under a 271B theory of inducement.

[00:06:23] Speaker 04:
We actually didn't

[00:06:25] Speaker 04:
intend to remove 271A.

[00:06:27] Speaker 04:
I think the court will see we simply pled infringement under 271 not knowing where the law would lead.

[00:06:36] Speaker 04:
We thought the better argument was Judge Moore's dissent in the first en banc decision that we should be looking at 271A and looking at common law principles of tort liability.

[00:06:45] Speaker 01:
But you, I forget whether it was you personally or one of your counsels sent an email saying, you know, dear other side,

[00:06:54] Speaker 01:
you're correct, we do not have a direct infringement theory, right?

[00:06:57] Speaker 04:
Well, at that time, that was correct.

[00:07:00] Speaker 01:
The law... I'm sorry, that you're not asserting a direct infringement theory.

[00:07:04] Speaker 01:
Isn't that what the email said?

[00:07:06] Speaker 04:
The law was we were pursuing liability under 271B for inducement, which was this panel's... I'm sorry, Beyond Bonk 2012.

[00:07:14] Speaker 01:
The only thing that puzzles me a little bit is that a month before, six weeks before,

[00:07:21] Speaker 01:
the February 28th amendment to the complaint, and I guess the March 7th amendment in the other case.

[00:07:27] Speaker 01:
The Supreme Court had granted cert in Akamai, in limelight against Akamai, at least sort of newly raising a possibility that this court's 2012 en banc decision about inducement might be overturned, thereby

[00:07:49] Speaker 01:
revivifying the issue that the on-bound court in 2012 didn't have to reach, which is whether BMC and uni auction might have been too narrow.

[00:08:00] Speaker 01:
So after the Supreme Court granted cert, it seemed to me that the possibility of a direct infringement theory became more significant than it was before the court.

[00:08:15] Speaker 04:
I believe that's true.

[00:08:16] Speaker 04:
And in fact, Mr. Makes files a friend of the brief courts, a friend of the court brief in that Supreme Court proceeding, arguing exactly for expanded patent coverage for acting in concert under 271A, as well as addressing other issues.

[00:08:36] Speaker 04:
But to your point is, respectfully, I think it's nearly irrelevant for purposes of pleading

[00:08:43] Speaker 04:
a counsel's explication of theories of liability between counsel and the requirements of notice pleading, particularly at that time for infringement and this court's holdings that for liability Form 18 controls, except for 271B, in which you must meet the requirements of Form 18 and specifically plead inducement.

[00:09:06] Speaker 04:
If you go back and look at the complaint, every one of the required elements of Form 18 are found.

[00:09:13] Speaker 04:
in the amended complaint, as well as an express allegation of inducement.

[00:09:17] Speaker 01:
Do we have precedent on the question whether a complaint that asserts infringement under 271 and doesn't get any more specific than that, doesn't say A, doesn't say B, doesn't say C, anything else is legally sufficient to encompass all of those more specific theories of infringement?

[00:09:41] Speaker 04:
I don't think there's, I'm not aware of a holding that addresses precisely that question.

[00:09:47] Speaker 04:
I am aware of this court's RML Carrier 681F1322 decision, which addresses allegations of direct infringement and inducement and walks through Form 18 and says, for purposes of 271B, if we have all the elements of

[00:10:06] Speaker 04:
Form 18 found in the pleadings, which of course we do in this case.

[00:10:10] Speaker 04:
And we have an express allegation of inducement, you need plead nothing more.

[00:10:14] Speaker 04:
If the court goes back and look, that's exactly what we had at the time of the amended pleadings.

[00:10:19] Speaker 04:
So regardless of whether, well, regardless of how you look at it, we pled all the elements to cover for 271A, 271B pursuant to this court's guidance on what was sufficient pleading.

[00:10:33] Speaker 04:
and pursuant to Form 18, which this court has held consistent, at least up to December 1, 2015.

[00:10:39] Speaker 01:
Can I ask one other procedural question?

[00:10:43] Speaker 01:
When, I guess, in August of 2014, the district court said, I now want to hear the defendant's motion to dismiss on infringement after waiting to see.

[00:10:58] Speaker 01:
In June, the Supreme Court decided limelight, the court

[00:11:02] Speaker 01:
The district court then waited to see whether we were going to hear the matter on bank or send it to a panel.

[00:11:08] Speaker 01:
We sent it to a panel.

[00:11:09] Speaker 01:
And at that point, I think it was in August, the district court said, okay, let's get going now.

[00:11:14] Speaker 01:
We're no longer going to stay proceedings.

[00:11:16] Speaker 01:
In the motion that the defendants filed or orally, did they argue that you had waived a direct infringement theory?

[00:11:28] Speaker 04:
Uh, Fandango did not.

[00:11:30] Speaker 04:
Vivid Seats kept pointing to the email.

[00:11:33] Speaker 04:
I don't recall... I don't know the answer, Your Honor.

[00:11:37] Speaker 04:
I believe that they... I don't know if they articulated it as a waiver.

[00:11:41] Speaker 04:
I think that, as I recall, they articulated it as a binding explication of what the pleadings were, that the pleadings are, in fact, a 271B inducement.

[00:11:53] Speaker 01:
And I don't remember.

[00:11:53] Speaker 01:
Am I remembering right?

[00:11:54] Speaker 01:
The district court did not say, um,

[00:11:58] Speaker 01:
She gave no way to it.

[00:12:00] Speaker 01:
Of course, they should.

[00:12:01] Speaker 01:
They didn't address it.

[00:12:02] Speaker 04:
If discussions between counsel about theories of liability are going to count as amendments depleting, you're going to shut down conversations between counsel explaining theories of liability.

[00:12:14] Speaker 04:
Your Honor, I see that my time has expired.

[00:12:16] Speaker 04:
I'd like to reserve the remaining time for a vote.

[00:12:25] Speaker 01:
Thank you.

[00:12:26] Speaker 01:
Ms.

[00:12:27] Speaker 01:
Davis.

[00:12:31] Speaker 00:
Thank you, Judge Toronto.

[00:12:32] Speaker 00:
May it please the court?

[00:12:36] Speaker 01:
You had a kind of unhelpful change of law along the way, didn't you?

[00:12:39] Speaker 00:
Yes, Your Honor, but we don't think it really makes a difference in this case.

[00:12:43] Speaker 00:
And I want to pick up on the question that Your Honor asked Mr. Biller.

[00:12:49] Speaker 00:
about what facts he's now contending he could plead that would meet the legal standard under this court's online decision in Akamai or any of the other theories that this court has recognized for joint infringement.

[00:13:04] Speaker 00:
And I think it's important here to recognize that in the amended complaint, Mr. Menke's

[00:13:09] Speaker 00:
admitted and conceded and concedes in this briefs in this court that Fandango does not perform all the steps of the claim method and in fact many of the steps are performed by these local Louie theaters.

[00:13:22] Speaker 00:
In fact as he describes the invention

[00:13:25] Speaker 01:
the invention is a system... Right, but that's not required, right, under... What do we call it?

[00:13:31] Speaker 01:
Do we call it Akamai 3?

[00:13:32] Speaker 01:
I keep referring to it as the August en banc, but that's more than enough.

[00:13:35] Speaker 00:
Either one, Your Honor.

[00:13:36] Speaker 00:
I've been referring to it as the recent en banc opinion in Akamai.

[00:13:41] Speaker 00:
But, well, what is important here, Your Honor, is that there is a requirement that Mr. Menkes provide facts that would support a plausible claim under Iqbal Twombly and

[00:13:53] Speaker 00:
this court's application of Iqbal Twombly, there has to be a plausible set of facts from which Mr. Menkes could potentially show his patent infringement claims.

[00:14:06] Speaker 00:
And in fact, I think it's telling that what Mr. Biller said in response to Judge Toronto's questions was that he thinks discovery would tell him some facts that he thinks would support his claim.

[00:14:17] Speaker 00:
But here, he does have to meet the Rule 12 gatekeeping requirements of having plausible facts.

[00:14:24] Speaker 00:
And as we explained in our papers, the claims of the 503 patent all require, in fact, they focus on the local movie theaters allocating tickets in their inventory between this local inventory and this internet inventory.

[00:14:41] Speaker 00:
And what Mr. Billers' amended complaint pleads, and the facts that he identified here to your honors don't change this, what he pleads is that the movie theaters perform that allocation.

[00:14:54] Speaker 00:
He doesn't plead that Fandango requires that allocation, conditions use of its system on that allocation, or any similar factor that would trigger the Akamai-Ambank analysis to find a basis for joint infringement.

[00:15:10] Speaker 00:
And in fact, what Mr. Manke's complaint pleads is that in paragraph 18, which is at JA 87, what Mr. Manke's pleads is that Fandango

[00:15:24] Speaker 00:
receives money when they sell the tickets online, and it receives no money.

[00:15:29] Speaker 00:
The local theaters keep all the money when the local movie theaters sell tickets to walk-up customers.

[00:15:36] Speaker 00:
So the situation is that if the local movie theaters perform the step-of-the-claim method, as Mr. Biller and Mr. Mangy's in the briefing have described it, you have to believe that Fandango would be telling

[00:15:53] Speaker 00:
the movie theaters, don't let us sell some of your tickets.

[00:15:57] Speaker 00:
Allocate some of them for local sale only.

[00:16:00] Speaker 00:
And that's simply not plausible.

[00:16:02] Speaker 00:
The facts pled in Mr. Manke's complaint do not create a plausible claim that Fandango is requiring or even encouraging this.

[00:16:12] Speaker 00:
And that is inconsistent with the facts.

[00:16:15] Speaker 02:
The complaint says something about incentivizing movie theaters

[00:16:23] Speaker 02:
be part of this system, right?

[00:16:25] Speaker 02:
And so I guess on one hand you maybe could read that to mean by inducing them that what they're trying to suggest in there, and there's a kernel in there of thought that they're willing to confer a benefit onto Fandango if Fandango joins this system and does these certain requirements.

[00:16:52] Speaker 00:
Well, the issue, Your Honor, on that is twofold.

[00:16:56] Speaker 00:
One is that the incentivization, so the idea that Fandango tries to get the movie theaters to allow Fandango to sell their tickets.

[00:17:06] Speaker 00:
They do, of course they do, and in fact that would apply to almost any

[00:17:09] Speaker 00:
vendor-customer relationship.

[00:17:12] Speaker 01:
So I think it would expand the exception extraordinarily broadly if we were to say anyone who- But the court in the August opinion did not say whether this new formulation was of broad or narrow application.

[00:17:28] Speaker 01:
And in particular, what we have here is an ongoing interactive relationship, which plausibly suggests there must be rules about that relationship, coordination rules.

[00:17:40] Speaker 01:
you must give me this information in order for me to do this for you, not kind of single transaction closed, closed transaction processes.

[00:17:51] Speaker 00:
We're not disagreeing that there's a relationship.

[00:17:53] Speaker 00:
I think the issue here is that there's no allegation that would support a claim that in that relationship

[00:18:00] Speaker 00:
Fandango is the mastermind of the movie theaters performing the claim method.

[00:18:06] Speaker 00:
And there does have to be, I think, under Akamai, a relationship between what the alleged infringer is requiring and the steps of the claim method.

[00:18:17] Speaker 00:
And here, the core steps of the claim method are not ones that are plausibly

[00:18:24] Speaker 00:
steps that Fandango is requiring.

[00:18:26] Speaker 00:
And you don't hear, Mr. Biller did not suggest that he can show that Fandango requires the movie theaters to withhold their inventory for local sale because he knows that that does not make sense and that's not the way this works in the real world.

[00:18:43] Speaker 00:
Now obviously we don't have that, we don't have a record at this point of that, but the facts that he has pled show that that's not plausible and

[00:18:54] Speaker 00:
The concern here is that any seller of a business online or any situation like this would be potentially liable for whatever it is their customers may be doing that might infringe a patent, even if they are completely agnostic as to what those customers are doing.

[00:19:15] Speaker 02:
I guess right now the plaintiff doesn't know if

[00:19:18] Speaker 02:
you know, to what degree there probably is a contract between Fandango and these different movie theaters and, you know, doesn't know if Fandango is providing certain kind of software code to the movie theater houses that they will install on their local servers in order to, you know, organize the relationship, the communication between Fandango's remote server and the movie theater's local servers.

[00:19:47] Speaker 02:
I mean, they can't know that yet, right?

[00:19:51] Speaker 00:
Well, but Fandango, they know, and in fact we've told them, Fandango's contracts are to the contrary.

[00:19:57] Speaker 00:
And if you send us back down, we will have to put in, you know, we will have to go through a process of dealing with these claims again.

[00:20:06] Speaker 00:
But there's no, as once again,

[00:20:09] Speaker 00:
there's no evidence and no indication that makes any sense that Fandango would be the one telling these movie theaters, don't let us sell all your tickets.

[00:20:18] Speaker 00:
Let us make less money, don't let us sell all your tickets.

[00:20:21] Speaker 00:
And that is the central feature of Mr. Menke's claimed invention is this idea that the local vendor gets to control his local inventory and his online inventory.

[00:20:33] Speaker 00:
Fandango has no involvement in

[00:20:36] Speaker 00:
what these movie theaters do with their local involvement.

[00:20:38] Speaker 00:
And it's not a part of using Fandango's system that you either have or don't have a local inventory.

[00:20:44] Speaker 00:
The contracts actually don't allow for a local inventory.

[00:20:48] Speaker 00:
But that's something that we would have to get into.

[00:20:50] Speaker 01:
Maybe we can hear from Mr. Matthews now.

[00:20:56] Speaker 01:
Thank you.

[00:21:09] Speaker 01:
Can you tell me anything about relevant case law about a situation like the present?

[00:21:17] Speaker 01:
Between the time of the district court decision and now, there is a significant new formulation of the governing legal standards.

[00:21:27] Speaker 01:
The pleadings were not written with that in mind.

[00:21:30] Speaker 01:
The district court's opinion was not written with that in mind.

[00:21:34] Speaker 01:
I don't know for sure.

[00:21:37] Speaker 01:
Perhaps your arguments in the district court were not geared to that formulation, which we were not quoting from something else.

[00:21:46] Speaker 01:
It's a new formulation in some meaningful sense.

[00:21:53] Speaker 01:
What tells us at what point it makes sense for a remand to be made for the litigation to now proceed

[00:22:07] Speaker 01:
maybe to summary judgment, maybe further, maybe not on the application of this new formulation, which by its terms is open-ended.

[00:22:18] Speaker 03:
The law has changed post-Occamite, the August decision.

[00:22:28] Speaker 03:
The change in our position is not substantial.

[00:22:31] Speaker 03:
and is one that is more of a clarification of the standard moving from what is direction control and attribution to more of an assertion of the relationship and the masterminding control beyond what is the other way to prove joint infringement and that being joint enterprise.

[00:22:52] Speaker 03:
I think it's without question the facts.

[00:22:56] Speaker 01:
Did we say in the August opinion that there's direction and control, joint enterprise, full stop, nothing more?

[00:23:03] Speaker 01:
Or did we say that those are two ways, plus there may be new facts, particular facts that warrant an additional basis, but we don't need to get into that here.

[00:23:15] Speaker 01:
And I guess part of that is, did that opinion specifically reject the concert, acting in concert theory?

[00:23:24] Speaker 03:
No, I don't believe in it.

[00:23:26] Speaker 03:
rejected the acting in concert theory, but I think it did take into consideration this court's opinion in Judge Moore's dissent in the remand back from the Supreme Court in assessing not just some acting in concert, but some overt control.

[00:23:44] Speaker 03:
So you have to take an additional step beyond two parties acting together in a contractual or customer relationship, and here,

[00:23:54] Speaker 03:
These facts, specifically for vivid seats, are even further away from a right case being able to be pled or much less was pled at the district court to suffice a 271 claim.

[00:24:11] Speaker 03:
The difference here for vivid seats is, as the amended complaint specifically delineates, that Joint Appendix 64

[00:24:24] Speaker 03:
There are ticket resellers that are the customers.

[00:24:32] Speaker 03:
I'm sorry, starting with 63, paragraph 13 of the amended complaint.

[00:24:37] Speaker 03:
Vivid Seeds works with ticket resellers.

[00:24:43] Speaker 03:
The patent at issue here is one directed to inventory control at a venue, a movie theater or a concert venue.

[00:24:54] Speaker 03:
There is no inventory control once the tickets are beyond that initial sale.

[00:25:00] Speaker 03:
And because of that fact, and it says specifically professional ticket resellers, that's a further step away.

[00:25:07] Speaker 03:
And this case is far more closely aligned with the aristocrat technologies case, the 2013 federal circuit opinion, 709 F 1348, finding no direction in control where the accused infringer incentivized

[00:25:22] Speaker 03:
completing the remaining steps.

[00:25:25] Speaker 03:
We don't even have incentivization.

[00:25:27] Speaker 03:
For the same reasons as Ms.

[00:25:29] Speaker 03:
Davis pointed out, why would we incentivize someone not to use our service solely to keep their inventory?

[00:25:36] Speaker 02:
Do you think the aristocrat case on the facts is still good law?

[00:25:41] Speaker 03:
I do.

[00:25:42] Speaker 03:
And the reason why is it was after the initial en banc Akamai decision and assessed both direct and indirect infringement.

[00:25:52] Speaker 03:
and sent the case back down for a decision following the Akamai 2012 en banc decision to reassess induced infringement 271B, but made no finding of direct infringement under any multi-party theory.

[00:26:09] Speaker 03:
The facts aligned directly with the case for at least vivid seats, where there's this overwhelming incentive that's irresistible for the parties to want to allocate

[00:26:22] Speaker 03:
go back to the claims, allocate inventory here.

[00:26:27] Speaker 03:
VisitSeats has no knowledge of what ticket resellers or ticket brokers or agents are selling tickets on their site.

[00:26:35] Speaker 03:
And they have no incentive to know.

[00:26:36] Speaker 03:
They have no benefit.

[00:26:37] Speaker 03:
They have no overt mastermind control over how that is done.

[00:26:43] Speaker 03:
So this case is even further removed.

[00:26:47] Speaker 03:
And it's illogical that

[00:26:50] Speaker 03:
Because there was a change in 271A, or I won't say a broadening, but a more open standard to considering other facts, when inducement was brought because that was the only supportable theory at the time.

[00:27:07] Speaker 03:
And even that theory in the complaint, as you go back to looking at the complaint, failed to allege sufficient facts to support that theory.

[00:27:16] Speaker 03:
So we're testing this complaint.

[00:27:18] Speaker 03:
Mind you, this amended complaint under Ikebal and Twombly that it fails to lead to pleading a plausible theory.

[00:27:28] Speaker 03:
And that's why, as Judge Taranta discussed, we challenged opposing counsel on what is the theory.

[00:27:37] Speaker 03:
And it wasn't just the email exchange.

[00:27:39] Speaker 03:
It was the joint motion for the stay pending the Supreme Court's decision in Akamai below.

[00:27:46] Speaker 03:
where it was expressly provided by the parties that defendant.

[00:27:51] Speaker 03:
The Supreme Court holds to establish that inducement and infringement requires that a single actor perform all the steps of the method claim.

[00:27:58] Speaker 03:
The inducement claims pled against vivid seeds would not meet that standard.

[00:28:03] Speaker 03:
This is joint appendix 113.

[00:28:06] Speaker 03:
So you've got a clear indication that this is a case initially proceeding based upon

[00:28:13] Speaker 03:
the original 2012 en banc decision of the Federal Circuit.

[00:28:16] Speaker 03:
Opening up, inducement is a possibility for multi-party infringement.

[00:28:21] Speaker 03:
During the pendency of that further appeal to the Supreme Court, we have an email and representation to the court that there is not a claim for direct infringement.

[00:28:34] Speaker 03:
So to your earlier question up, Judge Taranto, about whether there was waiver,

[00:28:39] Speaker 03:
We didn't even consider whether there was a claim pled.

[00:28:43] Speaker 03:
You need not necessarily have to argue.

[00:28:45] Speaker 01:
Am I right?

[00:28:46] Speaker 01:
The district court in, I guess, August of 2014 or whenever the court issued its rulings agreeing with you on the merits did not say, I guess in your case or the other case, that a direct infringement theory had been waived.

[00:29:09] Speaker 01:
The court did not use wavering.

[00:29:11] Speaker 01:
And it in fact addressed it on the merits in about three pages of a fairly short opinion.

[00:29:17] Speaker 01:
Only on the merits.

[00:29:19] Speaker 03:
It found no plausible claim for direct infringement.

[00:29:22] Speaker 01:
And that was the end of it.

[00:29:24] Speaker 01:
And can I ask you, in your motions for judgment on the pleadings, did you make an argument that said,

[00:29:38] Speaker 01:
Irrespective of the BMC, Muni auction, strict view of attribution, there is an element of this claim that simply cannot under any other theory be attributed to the defendants.

[00:30:01] Speaker 03:
On the facts as pleaded at that stage, yes.

[00:30:08] Speaker 03:
The focus obviously was on a movement in the law and a theory under indirect, I'm sorry, under inducement 271b.

[00:30:21] Speaker 01:
And I realize it would be a little bit hard to anticipate what the formulation of a change in the standard is and then make an argument specifically addressed to that of the sort that I think

[00:30:35] Speaker 01:
Ms.

[00:30:35] Speaker 01:
Davis was describing that there is simply no plausible possible inference of Vivid Seeds or Fandango's control of some particular element without quite knowing how to formulate that.

[00:30:55] Speaker 03:
Part of these theories arose both in the opposition for the first time and also in the reply brief before this point.

[00:31:04] Speaker 03:
Right.

[00:31:05] Speaker 03:
I think it's inherent that it's waived because the issues weren't before the court.

[00:31:14] Speaker 03:
And that's why I realize my time's up.

[00:31:16] Speaker 01:
OK.

[00:31:16] Speaker 01:
Thank you very much.

[00:31:19] Speaker 01:
Thank you.

[00:31:22] Speaker 01:
Mr. Biller, you have three minutes or three minutes and change.

[00:31:30] Speaker 04:
18 seconds, Your Honor.

[00:31:31] Speaker 04:
Your Honor, your question to Mr. Matthews was whether there's any Fed Circuit press in a similar circumstances in transonic systems versus non-invasive medical technology.

[00:31:42] Speaker 01:
Transonic.

[00:31:43] Speaker 04:
Transonic.

[00:31:44] Speaker 01:
Transonic.

[00:31:45] Speaker 04:
Systems versus non-invasive medical technologies at Fed App 765 of pages 778 to 779.

[00:31:54] Speaker 04:
The circuit in 2003 in addressing an appeal from the district court

[00:31:59] Speaker 04:
on an issue pertaining to the Doctrine of Equivalence noted that FESTO was an intervening decision at the time of the appeal, vacated the lower court holding, and remanded for deliberations consistent with FESTO.

[00:32:16] Speaker 04:
This court, in 2015, in Oakland... Even though if I'm... The law would have had to have changed.

[00:32:23] Speaker 01:
That's a legal question, the FESTO question.

[00:32:26] Speaker 01:
Is there a factual component of that?

[00:32:28] Speaker 04:
in Festo.

[00:32:30] Speaker 04:
I don't believe so.

[00:32:32] Speaker 04:
It is a legal question.

[00:32:32] Speaker 04:
I don't remember.

[00:32:34] Speaker 04:
In Oplus Technologies versus Vizio, last year, 7-82nd, F-1371, on an appeal, at least in part, on the issue of an award of attorney fees, the panel noted that Octane Fitness was an intervening decision and vacated the lower court holding

[00:32:56] Speaker 04:
as it pertained to attorney fees.

[00:32:58] Speaker 01:
The reason I ask about the law-fact distinction is if there is a factual or other discretionary determination for the district court to make and the district court hasn't made it and it might actually change the result, then yes, remand.

[00:33:10] Speaker 01:
But at least Iqbal Twombly plausible claims is a legal question that comes up on Rule 12.6.

[00:33:18] Speaker 01:
Sure.

[00:33:19] Speaker 04:
Now, with regard to Iqbal Twombly,

[00:33:22] Speaker 04:
caution the court to not convert Form 18 pleading requirements into proving infringement at the pleading stage.

[00:33:31] Speaker 04:
This court has repeatedly rejected that, and the argument was forcefully made in R&L carriers that Iqbal Twombly changed the Form 18 requirement, to which this court held that's simply not the case.

[00:33:42] Speaker 04:
Form 18 prevails or supersedes or takes precedent over Iqbal Twombly, and the pleadings are not

[00:33:50] Speaker 04:
a time and a place to try infringement contentions.

[00:33:53] Speaker 04:
Ms.

[00:33:53] Speaker 04:
Davis's arguments, I think, were telling, as were Mr. Matthews.

[00:34:00] Speaker 04:
Ms.

[00:34:01] Speaker 04:
Davis said, we don't have a record.

[00:34:04] Speaker 04:
Mr. Biller cannot show.

[00:34:06] Speaker 04:
Your Honors, this is a Rule 12b6 proceeding, at least twice, if not three times, in the material portion of the August 2015 Anbach-Acame decision

[00:34:19] Speaker 04:
The court noted the factually intensive nature of this inquiry.

[00:34:25] Speaker 04:
Defendants argue the facts.

[00:34:27] Speaker 04:
Defendants do not want to move into discovery.

[00:34:29] Speaker 04:
Ms.

[00:34:29] Speaker 04:
Davis has the temerity to argue the contract.

[00:34:32] Speaker 04:
You raise that.

[00:34:33] Speaker 04:
You don't want to use a word like temerity.

[00:34:36] Speaker 04:
I'm sorry.

[00:34:36] Speaker 01:
Ms.

[00:34:36] Speaker 04:
Davis raised the contract.

[00:34:37] Speaker 04:
I apologize, Your Honor.

[00:34:39] Speaker 04:
We asked for the contract.

[00:34:40] Speaker 04:
They refused to provide it.

[00:34:41] Speaker 04:
I mean, you can't have your cake and eat it, too.

[00:34:44] Speaker 04:
The larger issue is this is an area of the law that's in flux.

[00:34:49] Speaker 04:
It's very clear in the on-box decision that this court has decided to address this on a case-by-case factually intensive review basis.

[00:35:01] Speaker 04:
They didn't lay out an overarching parameter for evaluating open infringement.

[00:35:08] Speaker 04:
My client has met, I believe, in the current state of the plea and certainly can

[00:35:13] Speaker 04:
do it again.

[00:35:13] Speaker 04:
The Form 18 requirements, and to the extent 271B is informative, he met that requirement as well, Your Honor.

[00:35:22] Speaker 04:
Thank you for your time.

[00:35:23] Speaker 01:
Thank you.