[00:00:48] Speaker 02:
OK, the next argued case is number 16, 22, 23.

[00:00:51] Speaker 02:
Trading Technologies International against the Rosenthal Collins Group, LLC.

[00:00:58] Speaker 02:
Mr. Sigmund.

[00:01:02] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:01:04] Speaker 00:
This case presents a unique set of circumstances that test the very limits of when a district court should properly stay a case pending CBM review.

[00:01:16] Speaker 00:
It appears that Section 18 of the case law heavily favors a stay, but in this case, the facts and the law compel a different result.

[00:01:26] Speaker 00:
This is a six-year-old case.

[00:01:28] Speaker 00:
This isn't the first time there's been a stay for CBMs.

[00:01:32] Speaker 00:
This is actually the second stay for different CBMs.

[00:01:37] Speaker 00:
Trade Station refused to join or be a stop by the first round of CBMs, and this was

[00:01:44] Speaker 00:
a calculated decision by trade station and interactive brokers in order to avoid a stopper while enjoying the benefits of a stay.

[00:01:51] Speaker 00:
I apologize.

[00:01:52] Speaker 00:
Sometimes I say trade station, and the two appellees here are trade station and interactive brokers.

[00:01:59] Speaker 00:
And I meant to say both of them.

[00:02:01] Speaker 00:
Appellees never gave the district court a good reason why they didn't file their own CBMs sooner or join in the early CBMs.

[00:02:09] Speaker 00:
By the time they filed CBMs,

[00:02:12] Speaker 00:
The TD Ameritrade, the first round of CBMs, had already been resolved.

[00:02:17] Speaker 00:
And it was three years after they were able to file CBMs that they finally filed the CBMs.

[00:02:23] Speaker 02:
So is your position that they were obligated to file?

[00:02:27] Speaker 02:
They say they didn't want to be bound by any estoppel.

[00:02:31] Speaker 02:
And they mentioned the cost.

[00:02:33] Speaker 02:
And it seems that in accordance with the rules, that in effect, they had the right not to

[00:02:39] Speaker 02:
join or do you think that that's an incorrect statutory interpretation and that all defendants need to join?

[00:02:49] Speaker 00:
Your honor, I actually think that the rules permit them to do what they did but I think that you know we're in this world right now where everyone thinks stays should be almost automatic when a CBM is pending.

[00:03:00] Speaker 00:
I think the difference here is and the problem here is that when you sit back and watch a CBM occur and you have the ability to join in it

[00:03:09] Speaker 00:
or to file your own CBMs, it's unfair under the third factor, the third prong of the four-part test, to sit back, watch it all occur, and then jump in with your own CBMs and say, well, now we want to stay again.

[00:03:23] Speaker 00:
So I think that what it affects is while, to answer your question, while what they did may be allowed under the rules, the fact that Congress gave us statutorily a four-part test, I think, would mitigate

[00:03:38] Speaker 00:
you know, harassment and bad things from happening to patent owners.

[00:03:41] Speaker 02:
I mean, could... As far as we can tell from the record, the district judge did hear and give careful consideration to these arguments of gamesmanship or just unfairness and so on and did hesitate and then finally decide that in this case, because of the complexity and the number of patents and claims and all of the issues,

[00:04:07] Speaker 02:
that on balance, a stay would overall serve the major interests.

[00:04:15] Speaker 02:
And the question here is, we have a discretionary decision.

[00:04:21] Speaker 02:
Should that not have been permitted?

[00:04:24] Speaker 00:
Your Honor, I think that the judge, I mean, I acknowledge in the briefing there's a big question of what's the standard of review.

[00:04:31] Speaker 00:
I mean, the statute calls for de novo review.

[00:04:34] Speaker 02:
Well, let's say we're trying to get it right.

[00:04:36] Speaker 02:
We still have a discretionary decision in which it looks as if the district judge did hear and carefully consider and balance the equities in the extraordinary complexities of this case.

[00:04:52] Speaker 00:
Your Honor, I would say that the judge just plain got it wrong.

[00:04:56] Speaker 00:
And I think there's an element here of the judge.

[00:05:00] Speaker 00:
And I frankly think this is throughout the land right now.

[00:05:05] Speaker 00:
the judges think they kind of have to stay when you look at the precedent when you look at the cases that have come up to this court uh... i want to say that i i there's one of published opinion where state was affirmed but mostly the states have been reversed and it's interesting after after she entered the state we asked for rehearing on submissions we said you know let us at least finish the few depositions of the boring been scheduled and thankfully she let us do that but during that hearing and this is on page thirty two of our blue brief

[00:05:34] Speaker 00:
and it's uh... in its eight to nine three or three she says that she's a one of these patent pilot program judges judge virginia kendall she said it's enough to make me not want to be this case alone is enough to make me not want to be a patent pilot program judge because it doesn't move it strategically stop constantly and it's frustrating i agree that the case the chance of the case going away completely are not realistic and so i'm going to grant part of the motion reconsider i think judges

[00:06:04] Speaker 00:
uh... there hasn't been a case that i know of where court where where this court has said hey you know what you should have stayed uh... and i think this is the case i think when you look at the third factor there's compelling reasons why this case should be reversed under any standard under the abuse of discretion standard or under de novo or under de novo review again this isn't even this challenging judge kendall's findings on more than prom three

[00:06:35] Speaker 03:
I understood you in your brief to sort of trying to challenge her judgment about how she thinks her court would be benefited from the state.

[00:06:48] Speaker 00:
Your Honor, I do think that the third factor is not the only one that she- Right, that's what I'm trying to get at.

[00:06:54] Speaker 03:
I mean, a little bit from what the presiding judge was talking about in terms of how this judge has looked at the case.

[00:07:02] Speaker 03:
This judge said, boy, I recognize this is a very old case.

[00:07:06] Speaker 03:
Been around so long, I don't like that.

[00:07:09] Speaker 03:
I don't blame her.

[00:07:11] Speaker 03:
It would seem to me that the person who's in the best position to judge whether or not efficiencies would occur, this is basically what the second factor in the fourth, is the district judge, not you.

[00:07:25] Speaker 03:
Isn't the district judge in the best position to measure those considerations?

[00:07:30] Speaker 00:
I think that the district judge is normally in the best position, but I think this judge failed to consider

[00:07:37] Speaker 00:
all the factors i'd you know she stayed the first the first set of c she stayed based on the first set of cvm's and i i think that she felt like given the case law she had to stay i'd i think this is a chair why is the fact that she earlier statement different cvm for a different party why is that relevant to the consideration of this case i think it goes to the third factor very strongly i think that

[00:08:06] Speaker 00:
uh... kind of what i said when i open that uh... sitting back and kind of watching this all go along and not participating in the first cvn leads to the kind of unfair serious party actually went to the peter and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and

[00:08:35] Speaker 00:
these patents uh... have a long have a long history you know our client uh... it is a company in the business competing with these defendants uh... judge loris but on panels that dealt with at least two of these pounds before in fact this patent uh... uh... some of these patents have come up to uh... and been appeal to this court that's the first day we talk about when they were allowed to move for summary judgment before anything happened in the case

[00:09:01] Speaker 03:
And the considerations that you rely on on the third factor, in the judge's mind, were offset by the fact that she didn't seek a preliminary injunction.

[00:09:12] Speaker 00:
Yeah, I understand.

[00:09:14] Speaker 00:
And I actually think that that was error for her to put so much reliance on us not seeking.

[00:09:19] Speaker 03:
Well, but is she wrong to put the unwillingness to ask for a preliminary injunction in the equation?

[00:09:30] Speaker 00:
I think it can be considered, Your Honor, but I think given the fact.

[00:09:34] Speaker 03:
And if someone who's arguing, oh my goodness, I'm going to have goodwill, I'm going to have market share, I'm going to have these terrible things, what will happen to me if this infringement continues?

[00:09:44] Speaker 03:
Ordinarily, you would think that they would seek preliminary and junkie relief to protect themselves.

[00:09:51] Speaker 00:
Your honor, I think that while it might be something to consider, I think that putting so much reliance on a preliminary injunction, when you look at the whole history of the case, I mean, if my client would have known back in 2010, almost seven years ago when it brought these cases, that this case would linger this long, the decision might have been different.

[00:10:12] Speaker 00:
Some of the courts have looked at, and I think Judge Newman in her dissent in the cases escaping me, maybe virtual agility, said,

[00:10:21] Speaker 00:
it there's many different reasons why you would why you would not pursue a preliminary injunction and and and putting so much weight on that factor i think let's uh... led to the error here i think that you know there's many many reasons why why client wanted this k two of these patents the three oh four one thirty two have been tried to jury successfully twice already

[00:10:47] Speaker 00:
uh... one of them has been up here in the east the trial another one uh... which the court found uh... that uh... that the uh... that the patents were patent-eligible are due to be argued in this court i assume that the uh... you know the schedule will come out soon but in any case these are patent these are just you know that that looking at this in isolation and say well they didn't move for a preliminary injunction i think really kind of goes too far

[00:11:15] Speaker 00:
uh... and again this day is the first i don't doubt that it should be looked at but i think the weight that she put on that was just was i'd say it was an abuse of discretion she mentioned a whole bunch of factors on each side she mentioned delays on your part and delays on their part put them all together and it seemed to me

[00:11:45] Speaker 02:
great weight on the complexity of the number of patents and the number of claims and the advantages to the court, if nothing else, to have a determination by experts?

[00:12:01] Speaker 00:
Your Honor, I understand that.

[00:12:03] Speaker 00:
But again, and we've laid it out in our briefs, I think the way that she looked at the factors, you know, you don't know what a judge is thinking, but it just seems like

[00:12:13] Speaker 00:
like the courts are predisposed to grant a stay.

[00:12:16] Speaker 00:
And I know that the court knows this, but if Congress wanted to grant an automatic stay, they could have, and they didn't.

[00:12:23] Speaker 02:
And they gave us- It wasn't automatic, but the legislative history is full of statements by Congresspeople, senators, and representatives, that a stay would generally be the rule, and presenting that as an advantage to the Congress and to the nation.

[00:12:43] Speaker 02:
that the court litigation would be stayed while the experts reach a decision, which then results in an estoppel so that it wouldn't be in court at all.

[00:12:53] Speaker 02:
So that the weight, I think, has to be agreed to be in favor of a stay unless the other circumstances weigh against here the pendency, the length of the proceedings do indeed weigh against another stay.

[00:13:11] Speaker 02:
Here we have a well-regarded judge who was going to have to try all of these issues and put it together and explained in a cogent way, it seemed to me.

[00:13:25] Speaker 02:
And what I'd like is for you to tell us why that shouldn't stand.

[00:13:31] Speaker 00:
Yeah, and I see him already in my rebuttal.

[00:13:33] Speaker 02:
Well, it's my rebuttal.

[00:13:34] Speaker 02:
We'll save your rebuttal, but do explain this.

[00:13:36] Speaker 00:
Your Honor.

[00:13:38] Speaker 00:
i think that that the way the judge analyzed the factors was error i mean for to i don't think congress intended to allow a party say there were a string of defendants can each of them wait i mean if there's five defendants for the first one take a stay and that doesn't work in the next one and the next one that's why congress gave us that bad here we only the next one what will happen sorry about us what were on the third state and and the other

[00:14:08] Speaker 00:
The other factor that I don't think the judge put enough weight in is in the CQG case, which is two of the patents in suit here, the district court found the patents, found the 132 and 304 patents patent eligible.

[00:14:22] Speaker 00:
And that case is coming to this court soon.

[00:14:26] Speaker 00:
And out of the nine patents that have been instituted for CBMs, five are on questions of 101, all right?

[00:14:34] Speaker 00:
Only questions of 101 at the CBM.

[00:14:37] Speaker 00:
the cbm's will only be one oh one so the fact that this court is about to rule on one oh one for two of the patents uh... i think should have been considered much more strong and i'd i'd let's hear from the other side your honor david healing i represent trade station today i'll be speaking

[00:15:07] Speaker 01:
The first thing that is noteworthy is there's no dispute as to the law.

[00:15:14] Speaker 01:
The law is in 18B2 and 18B1.

[00:15:19] Speaker 01:
There's no dispute that the judge followed the factors in 18B1.

[00:15:24] Speaker 01:
There's no dispute that she did what the law told her to do, which was to take the record as before her, her familiarity with the case, her familiarity with the parties,

[00:15:35] Speaker 01:
and worked through carefully each of these four factors.

[00:15:39] Speaker 01:
And she came to a decision, a decision that comports with what this court wrote, albeit in dicta and intellectual ventures, that it would be the rare exception where there wouldn't be a study.

[00:15:52] Speaker 01:
And what this judge also found, dealing explicitly with some of these allegations of gamesmanship and delay at page 11 of her opinion,

[00:16:04] Speaker 01:
She found explicitly that given the explanations that the defendants have provided, she would not find a dilatory motive.

[00:16:12] Speaker 01:
And she would not give credit for gamesmanship to the other side.

[00:16:18] Speaker 01:
She also found on page 13 of her opinion, quote, while it is true that the nature of this litigation has been stop and go, both parties have been responsible for the near constant delays.

[00:16:30] Speaker 01:
And indeed, the first day that my colleague

[00:16:34] Speaker 01:
refers to was his client's death.

[00:16:38] Speaker 01:
We had frankly thought we won the case on the most critical patents when we got a summary judgment granted.

[00:16:47] Speaker 01:
They appealed by engineering a rule 54B, partial final judgment.

[00:16:55] Speaker 01:
Then they took that up.

[00:16:56] Speaker 01:
The judge asked for a case management plan.

[00:16:58] Speaker 01:
That case management plan included their request to stay certain patents in addition to those that were on appeal and to go forward with the others.

[00:17:10] Speaker 01:
And their case management plan would not have contemplated full bore litigation.

[00:17:18] Speaker 01:
It would have contemplated about half the case being stayed in any event.

[00:17:21] Speaker 01:
And I believe that that can be found in the appendix

[00:17:28] Speaker 01:
if I'm not mistaken, about 23,644.

[00:17:36] Speaker 01:
The bottom line here, though, is if you go through the 13 and 1 half page opinion that Judge Kendall did, there is no issue of law.

[00:17:49] Speaker 01:
And so it becomes one of her exercising her discretion.

[00:17:52] Speaker 01:
She'd lived with this case and these parties for multiple years.

[00:17:58] Speaker 01:
At one point, a case that involved 10 defending groups that is co-owned or mutually owned groups that would have been made up of multiple defendants and 19 patents.

[00:18:14] Speaker 01:
At the time of this day, it was two defending groups in 12 patents.

[00:18:21] Speaker 01:
And pending were a motion by trading technologies

[00:18:26] Speaker 01:
to add five more patents against my client.

[00:18:28] Speaker 01:
That is, increase the number of patents from 10 to 15, the number of asserted claims from about 240 by several dozen.

[00:18:38] Speaker 01:
And there was a motion to add another patent against interactive brokers and increase the claims, which at that time were already 300, up even further.

[00:18:50] Speaker 01:
There was a motion to amend to add parties pending.

[00:18:53] Speaker 01:
And of course, there were discovery disputes.

[00:18:56] Speaker 03:
Mr. Healy, you gave us a supplemental filing, which I think was proper, to tell us that the PDO has granted three more patents.

[00:19:09] Speaker 03:
How do we play that into the equation?

[00:19:12] Speaker 03:
Judge Kendall only knew that six had been granted and six were pending.

[00:19:16] Speaker 03:
Yes, sir.

[00:19:18] Speaker 03:
Should we somehow put those other three in the equation?

[00:19:23] Speaker 01:
I think so, Your Honor, because

[00:19:26] Speaker 01:
each of the ones that had been instituted had been instituted on at least 101 grounds.

[00:19:33] Speaker 01:
And these patents all go to various aspects of a graphical user interface.

[00:19:39] Speaker 01:
And each of those three patents that have been instituted likewise have been instituted on at least 101 grounds.

[00:19:46] Speaker 01:
And so the similarity between

[00:19:50] Speaker 03:
The scope of the patent is- I was curious about the situation, because the playing field has changed since the judge made a discretionary decision.

[00:20:00] Speaker 03:
The change, one would think, supports the discretion in the way she exercised it.

[00:20:07] Speaker 01:
It does, Your Honor.

[00:20:08] Speaker 03:
But I don't know whether it's right for us to put that into the record, it having happened after the moment in time that she made her judgment.

[00:20:16] Speaker 01:
I think this court has ruled under Federal Rule 201 that it

[00:20:19] Speaker 01:
can take judicial notice of the fact of the initiation, but not get into the initiation decisions.

[00:20:28] Speaker 01:
And of course, we shouldn't get into the initiation decisions anyway.

[00:20:31] Speaker 03:
Well, just to pursue it.

[00:20:33] Speaker 03:
Because to me, it's a more interesting issue than some of the others.

[00:20:37] Speaker 03:
Well, what would happen if the PTO had turned down three?

[00:20:41] Speaker 01:
Well, then I think that would play.

[00:20:43] Speaker 03:
Then you'd be arguing I shouldn't take that into consideration, right?

[00:20:47] Speaker 01:
I guess so, but the point is things are playing out exactly the way we thought.

[00:20:51] Speaker 03:
Because that would be potentially adverse to your position.

[00:20:54] Speaker 01:
What's that?

[00:20:55] Speaker 01:
That would be potentially adverse to your position.

[00:20:57] Speaker 01:
It would, but what has happened at the PTO has played into our position.

[00:21:02] Speaker 03:
So a sauce for the goose isn't a sauce for the ganger.

[00:21:04] Speaker 03:
I mean, to come back to whether or not it's proper for us to give any consideration to the three grants.

[00:21:11] Speaker 01:
When we filed our motion,

[00:21:13] Speaker 01:
We told the judge that we believed all 12 would be initiated.

[00:21:19] Speaker 01:
And because of the similarities in the technology.

[00:21:21] Speaker 03:
Appreciate the fact that it was going to be initiated and how the judge would say, well, that's likely to happen.

[00:21:26] Speaker 03:
But what would happen if, for example, you'd had 12 and you'd pitching your stay on three being granted and all nine got turned down?

[00:21:36] Speaker 03:
What I'm trying to get at is that I don't know whether I'm supposed to pay any attention.

[00:21:42] Speaker 03:
to the supplemental authority that you gave me, now that you've told me that if it had gone the other way, you wouldn't want me to be taking it into consideration.

[00:21:51] Speaker 01:
I think the reason why it gets limited consideration, that is just the fact they were initiated under federal rule of evidence 201, is to show that Judge Kendall believed the PTO was going to

[00:22:10] Speaker 01:
resolve much of her burden.

[00:22:13] Speaker 01:
And her analysis has been supported by subsequent events.

[00:22:20] Speaker 01:
And the other thing that's comforting to her personally, as she sits in her chambers, perhaps it also lets her feel that if we're back in front of her status conference on October 13, the things have worked out as anticipated.

[00:22:41] Speaker 03:
But your view was irrespective of the later events.

[00:22:46] Speaker 01:
Yes, irrespective of the later events.

[00:22:49] Speaker 01:
Half the patents had been instituted by the time she granted the motion to stay the case.

[00:22:55] Speaker 01:
If that half of the patents, which is over 180 claims, in other words, more than half the claims, had all been, or they all do get canceled in the process,

[00:23:09] Speaker 01:
she will have eliminated or allowed the PTAB to eliminate more than half of the claims in the case.

[00:23:18] Speaker 01:
And that will have been a simplification, a streamlining.

[00:23:23] Speaker 01:
It would have been a reduction of the burden.

[00:23:26] Speaker 01:
And there was no undue tactical advantage here other than what is normally seen in a stay.

[00:23:35] Speaker 02:
as to all of the defendants, let's say all of the defendants hadn't brought the action before the PTAB, then it wouldn't have been eliminated as to any defendants that didn't participate, which is the way all of this started.

[00:23:52] Speaker 02:
Isn't that right?

[00:23:54] Speaker 01:
That's correct.

[00:23:55] Speaker 01:
But in this order, Judge Kendall explicitly took account of that and explicitly noted

[00:24:02] Speaker 01:
that both of the remaining defendants had joined in all of the petitions.

[00:24:06] Speaker 01:
And so they would be binding on all of the remaining petitions.

[00:24:10] Speaker 01:
So this is something she actually considered explicitly in exercising her discretion.

[00:24:16] Speaker 02:
Which leaves open the question of what, if it had been only one of the two, we leave that for another case?

[00:24:24] Speaker 01:
Obviously, because that's not this case.

[00:24:28] Speaker 01:
OK.

[00:24:31] Speaker 01:
You know, in this case, which is the case we're dealing with, we do have this anomalous six-year delay.

[00:24:38] Speaker 01:
But as Judge Kendall wrote on page 13 of her opinion, she thought that was due to both sides' actions.

[00:24:46] Speaker 01:
I would submit that the first delay was the engineering of the Rule 54B final judgment and appeal by trading technologies as opposed to having one appeal at the end of the case.

[00:25:00] Speaker 01:
In terms of the stage of the case, I think it's very interesting at the bottom of page 8 and the top of page 9 of her opinion, Judge Kendall goes to lengths to explain how TT is trying to expand the case, even at this stage, increase the number of patents, increase the number of claims, increase the number of parties.

[00:25:23] Speaker 01:
And in doing so and making these motions, they're arguing to her that the case is at an early stage.

[00:25:30] Speaker 01:
And she says, in her opinion, you can't have it both ways.

[00:25:34] Speaker 01:
You can't file motions with me to add 50% more patents against Trade Station, to add more parties to the lawsuit by saying you're in the early stage of a case when, in fact, now you want to say we're at the end of the case.

[00:25:52] Speaker 01:
The bottom line is Judge Kendall held them to their word on the stage of the case.

[00:25:58] Speaker 01:
And even if you look at their own briefing, I think they project that it would have been at least another two years.

[00:26:06] Speaker 01:
The other thing that I think is interesting is if you just look at the citations on the bottom of page six and the top of page seven of our opposition brief, our red brief, and you look at the citations to the SunGuard case, when it was filed and when it was resolved.

[00:26:25] Speaker 01:
and the citation to the CQG case, the original one when it was filed, the one when it was resolved, those were 2005 cases.

[00:26:34] Speaker 01:
The Sungard case, I believe, was resolved in 2015, and the CQG case in 2016.

[00:26:41] Speaker 01:
There were no stays for CBM or otherwise in those cases, and yet they took 10 and 11 years before other judges to resolve.

[00:26:53] Speaker 01:
Here, we're not talking about the two patents only that they went to trial on in front of juries.

[00:26:59] Speaker 01:
We're talking about what are now 12 patents and three patent families.

[00:27:05] Speaker 01:
This is an enormously complex case.

[00:27:08] Speaker 01:
Judge Kendall used her discretion and her opinion is remarkably thorough and frankly addresses, I think, pretty much every argument, if not every fact, that

[00:27:23] Speaker 01:
the trading technologies brief addresses and arguing for an abusive discretion.

[00:27:29] Speaker 01:
And while they then argue for the de novo review, they give no explanation at all saying why there should be a de novo review.

[00:27:40] Speaker 01:
The statute says you can have de novo review for consistency in the law, but they give no explanation as to how she misapplied the law.

[00:27:49] Speaker 01:
She followed the law.

[00:27:50] Speaker 01:
She followed the statute explicitly.

[00:27:54] Speaker 01:
And what the legislative history also shows is that de novo review would most likely come into place if you had developed a forum that simply refused to stay cases.

[00:28:08] Speaker 01:
And that became a magnet for patent owners' filings, because they knew their case wouldn't be stayed.

[00:28:15] Speaker 01:
That would allow the Federal Circuit to correct that situation.

[00:28:18] Speaker 01:
The de novo review was really meant to keep to the word of Congress

[00:28:24] Speaker 01:
which is that once the CBM review started, you would not have litigation going on in 240.

[00:28:32] Speaker 01:
And that's what's going to happen if this stay were lifted, the CBMs would continue to go forward.

[00:28:42] Speaker 01:
It would have no effect on the CBMs.

[00:28:45] Speaker 01:
There is a hearing in the PTAB on the CBMs, on the first five CBMs, within two weeks.

[00:28:51] Speaker 01:
They're not going to stop.

[00:28:53] Speaker 01:
And so the only point that would be made here is we would now have exactly what Congress did not want.

[00:29:01] Speaker 02:
What is the timing of the still pending CBNs?

[00:29:06] Speaker 01:
The first five are being handled on a consolidated basis.

[00:29:09] Speaker 01:
And they are having a hearing in the PTAB, I believe, October 15.

[00:29:15] Speaker 01:
And then in the letter we sent, we have the rest of the timing.

[00:29:23] Speaker 01:
We expect that all of the CBMs would be initiated, or the last of them would be initiated by December.

[00:29:30] Speaker 02:
Nine of the 12 have been initiated.

[00:29:33] Speaker 01:
So they're still in the initiation phase?

[00:29:35] Speaker 01:
The five going to hearing have been initiated, briefed.

[00:29:40] Speaker 01:
They're now going to trial, I suppose, before three administrative law judges in the PTAP on October 15.

[00:29:53] Speaker 01:
The result Congress wants was to litigate these types of patents through a special transitional program that sunsets the year 2020.

[00:30:04] Speaker 01:
And that is what Judge Kendall did.

[00:30:08] Speaker 01:
She gave effect to congressional intent, an enormously complex 12 patent case.

[00:30:15] Speaker 02:
OK.

[00:30:16] Speaker 02:
Any other questions, Mr. Healy?

[00:30:17] Speaker 02:
Thank you, Mr. Healy.

[00:30:26] Speaker 02:
Mr. Sigmund?

[00:30:28] Speaker 00:
Thank you, Your Honor.

[00:30:28] Speaker 00:
Thank you for giving me some extra time.

[00:30:32] Speaker 00:
First, that first delay being our fault, you have to understand, they went to the judge and they said, we want a brief in validity.

[00:30:39] Speaker 00:
This is before anything happened, before there was discovery.

[00:30:42] Speaker 00:
And they said to Judge Kendall, we want a brief in validity on some of your patents.

[00:30:47] Speaker 00:
And they won.

[00:30:47] Speaker 00:
They invalidated some of our patents.

[00:30:49] Speaker 00:
We felt we had to bring it to this court.

[00:30:51] Speaker 00:
I don't think the record supports that we asked for a stay

[00:30:55] Speaker 00:
during any of that time but you know not much happened in that case while the while the appeal was pending and we want it was reversed we want uh... the other thing is i didn't touch much on the simplification factor i'll leave that that's in our briefs but uh... you know two points one is you know not all that they didn't that their cvm still have all the prior art so we've been you know there's still going to be more prior things to do when the case comes back to the district court

[00:31:25] Speaker 00:
I suppose you could say if it comes back to the district court.

[00:31:28] Speaker 00:
But we say when it comes back to the district court.

[00:31:31] Speaker 02:
Well, if the CBMs decide it won't come back, will it, on those patents?

[00:31:35] Speaker 02:
There's an estoppel between the parties.

[00:31:38] Speaker 00:
Yeah, but there's more prior art.

[00:31:42] Speaker 00:
They didn't put all the prior art in the CBMs.

[00:31:44] Speaker 00:
And I understand there's various reasons for doing that.

[00:31:46] Speaker 02:
I'm not so sure that new issues can be raised.

[00:31:51] Speaker 02:
I think that's perhaps an unresolved question.

[00:31:56] Speaker 02:
doesn't make sense that Congress contemplated that you'd raise one piece of prior art in your CBM and maybe lose, and therefore go back and not be stopped as to the challenge.

[00:32:08] Speaker 00:
Well, I hope you're right, Your Honor.

[00:32:09] Speaker 00:
But I'm actually not sure if that's the law at this point or not.

[00:32:14] Speaker 00:
No, neither am I. The other point I want to make is you asked where these CBMs are.

[00:32:24] Speaker 00:
This case came back down from appeal when we appealed the validity of the 411 and other patents.

[00:32:31] Speaker 00:
And then TD Ameritrade filed CBMs and got a stay.

[00:32:36] Speaker 00:
And then when that stay was lifted, the defendants said, the two defendants who are still here among the others that were there then said, hey, let's keep the stay going.

[00:32:46] Speaker 00:
We're going to file our own CBMs.

[00:32:48] Speaker 00:
And the judge said, you know, I mean,

[00:32:50] Speaker 00:
she didn't immediately grant a stay the case proceeded we actually made some progress but what's interesting to note is they didn't file all their cbm's at once even though some of them were very similar to the ones that td ameritrade felt they spread out their filings over a year i think it was from july of twenty fifteen to june of twenty sixteen so imagine if this isn't gamesmanship and tactics i mean that that extra year probably

[00:33:20] Speaker 00:
And I don't know what the position of the court would be if some of the CBMs were done and there were only a few tail end left.

[00:33:26] Speaker 00:
But that projects this delay out even further.

[00:33:31] Speaker 00:
Again, we are in our third stay.

[00:33:34] Speaker 00:
I just cannot believe that this is what Congress intended.

[00:33:37] Speaker 00:
I believe they put the four factor test in as a safeguard.

[00:33:41] Speaker 00:
And I believe this case should be reversed.

[00:33:43] Speaker 00:
And I thank you for the extra time.

[00:33:45] Speaker 02:
Thank you.

[00:33:46] Speaker 02:
Thank you both.

[00:33:47] Speaker 02:
The case is taken under submission.

[00:33:49] Speaker 02:
That concludes the argued cases for this morning.

[00:33:55] Speaker 01:
All rise.

[00:33:57] Speaker 01:
The Honorable Court is adjourned until tomorrow morning.

[00:34:00] Speaker 01:
It's at o'clock a.m.