[00:00:05] Speaker 04: Oh, awesome. [00:00:07] Speaker 04: My pen exploded, so... Thank you. [00:00:12] Speaker 04: My pen exploded on me. [00:00:14] Speaker 04: That's the bad one. [00:00:14] Speaker 04: That's the evil man up there. [00:00:17] Speaker 04: Well, the pen exploded, so I asked if I... Let me have the dry one. [00:00:23] Speaker 04: Thanks. [00:00:23] Speaker 04: Our next case for today is 2016-1392, United Construction Products versus Tiltek. [00:01:17] Speaker 05: Mr. Cunningham, please proceed. [00:01:21] Speaker 01: Good morning, Your Honors. [00:01:23] Speaker 01: May it please the Court? [00:01:25] Speaker 06: Mr. Cunningham, the District Court noted in its opinion that Tiltek had not paid the amount of sanctions ordered in the motion to compel. [00:01:36] Speaker 06: Have those been paid at this point? [00:01:38] Speaker 01: I believe they have not yet, Your Honor. [00:01:42] Speaker 01: I believe that it has not been pressed upon them by the appellee [00:01:47] Speaker 01: in order of the court. [00:01:49] Speaker 01: Yes, your honor. [00:01:50] Speaker 01: That hasn't been complied with. [00:01:52] Speaker 01: It seems like there was some gentleman's understanding, as maybe Pelley's counsel could inform about that. [00:01:59] Speaker 01: But I believe that there was some gentleman's understanding to wait until after the appeal, perhaps, to resolve that issue. [00:02:06] Speaker 00: Is the district court aware of that general understanding? [00:02:10] Speaker 01: No. [00:02:10] Speaker 01: I'm not aware of that, your honor. [00:02:12] Speaker 06: I apologize. [00:02:15] Speaker 06: Paltech's designated [00:02:16] Speaker 06: witness admitted in his deposition that he threw away all the notched washers when he learned about the commencement of the Wasu and he never disclosed the mold of the washers existed and United Construction filed a spoliation motion. [00:02:37] Speaker 06: Why did Taltec refuse to hand over the mold until after the [00:02:45] Speaker 06: the deadline for the motion to compel had been passed. [00:02:49] Speaker 06: It's really confusing to me because the washers had been sold to the public. [00:02:55] Speaker 01: I believe the washers had never been sold to the public. [00:02:58] Speaker 01: There were a few that were given away. [00:02:59] Speaker 06: United was able to introduce one into evidence. [00:03:05] Speaker 01: Again, there were perhaps some that were given away during some sort of experimentation, but I think that [00:03:15] Speaker 01: The testimony is that they have never been sold with the combination. [00:03:20] Speaker 01: Now, again, the patent claims themselves are not just for the notched washer. [00:03:23] Speaker 01: Patent claims are expressly limited to a combination of factors, a combination of elements. [00:03:29] Speaker 01: One of the elements is that it's the wood surface products that cannot include the notched washer. [00:03:36] Speaker 01: But my client sells ceramic surfaces, tile surfaces, [00:03:43] Speaker 00: Does your client still have a mold and notched washers? [00:03:48] Speaker 00: Because I did see in the record, as Judge Wallach mentioned, that your client seems to have gotten rid of all of those. [00:03:58] Speaker 00: But yet you're here arguing that the scope of the injunction is improper because it asks you to surrender those. [00:04:04] Speaker 01: Yeah, Your Honor. [00:04:05] Speaker 00: I'm confused about your interest in the issue. [00:04:07] Speaker 01: First, the notched washers wins. [00:04:11] Speaker 01: When the season assist letter was received, my client destroyed all the notch washers to make sure that they wouldn't have any possibility of infringing the patent. [00:04:21] Speaker 01: It's not a necessity to have a notched washer. [00:04:25] Speaker 01: They can sell their products with a fully round washer without a notch. [00:04:28] Speaker 01: It's a convenience to have a notch, but it's not a necessity. [00:04:33] Speaker 01: You can put [00:04:34] Speaker 01: Wait, I don't think you've answered my question. [00:04:36] Speaker 01: Does your client still have notched washers? [00:04:39] Speaker 01: No, first, my client does not have notched washers. [00:04:42] Speaker 01: Does your client have a mold? [00:04:44] Speaker 01: My client has a mold that immediately removed the notch portion that would create the notch in the washer. [00:04:51] Speaker 01: Now of course, first, that yes, he has removed the notch so that it is a fully round washer mold at this point. [00:05:00] Speaker 01: Second, [00:05:02] Speaker 01: He did not have the, my understanding he did not have the mold when the discovery was at the beginning. [00:05:10] Speaker 01: He had the, most of the notches washers were created by just simply carving the notch out of the washers. [00:05:18] Speaker 01: When he got the cease and desist letter, he refute, he destroyed them. [00:05:23] Speaker 00: What is your interest in now arguing that the scope of the injunction is improper and should include notched washers? [00:05:29] Speaker 01: Well, your honor, [00:05:31] Speaker 01: The notch wash, my client would not like to be restricted any more than he has to under the patent. [00:05:36] Speaker 01: The patent clearly requires a combination of things, the notch washer in combination with wood surfaces and pedestals of certain threading is basically the several elements in the claims. [00:05:50] Speaker 01: In fact, in prosecution history, they added the limitation that it would be boards as opposed to slate, tile, [00:05:57] Speaker 01: ceramic or anything like that. [00:05:59] Speaker 01: So the limitation of the notch washer is not all that this patent is all about. [00:06:05] Speaker 06: In page 14 of the blue brief, you argue the five-part Malone factors. [00:06:15] Speaker 06: And then you say, you address them in each factor in turn. [00:06:19] Speaker 06: Although it is worth noting at the outset that the district court made no indication at all that it considered any of these [00:06:26] Speaker 06: factors and gave this court scant material to make any review. [00:06:31] Speaker 06: Let me read you from Malone. [00:06:35] Speaker 06: It is not necessary, immediately after they list the five factors, it is not necessary for a district court to make explicit findings to show that it is considered these factors. [00:06:48] Speaker 06: So what's the point of what you say at 14? [00:06:53] Speaker 01: Why, I think it goes certainly to the reasonableness of the [00:06:56] Speaker 01: court's determination. [00:06:58] Speaker 01: Now, this is a default judgment as opposed to a dismissal. [00:07:01] Speaker 01: In Malone, it was a dismissal of the plaintiff's claims. [00:07:04] Speaker 01: This is a default judgment against a defendant's defense of an allegation of infringement. [00:07:09] Speaker 06: I don't think you're hearing my question. [00:07:12] Speaker 06: The blue brief says the district court made no indication that it considered, and the opinion you cite [00:07:23] Speaker 06: In the sentence following the five factors you list says it is not necessary for a district court to make explicit findings to show it considered. [00:07:33] Speaker 01: Well, at the end of the day, then it requires this court to make a particularized review of the evidence and determine whether the court was correct or not. [00:07:42] Speaker 01: It would have been helpful to this court if the district court judge, the one with the most close relationship to the two parties, if he would have [00:07:53] Speaker 01: listed out the reasoning for his decision would have been an assistance to this court on reviewing it on appeal. [00:08:03] Speaker 06: Even though the opinion you cite says the court doesn't have to. [00:08:07] Speaker 01: I don't think that alone would make it reversible by any means, but it doesn't help. [00:08:12] Speaker 01: Well, I would have appreciated if you had cited it frankly. [00:08:18] Speaker 01: Your Honor. [00:08:20] Speaker 01: If it please the court, I just want to point out again that the client sells these flooring surface products, walkways, patios and the like. [00:08:35] Speaker 01: Prior to the patent at issue, it's simply a flooring. [00:08:38] Speaker 01: It could be stone or the like. [00:08:42] Speaker 01: The pedestals are usually threaded. [00:08:44] Speaker 01: The cleverness of it all is that between the cap and the base of the pedestal is a [00:08:50] Speaker 01: simple inexpensive PVC piping that's cut to the right height. [00:08:54] Speaker 01: What the patent added was simply that for purposes of the contractor to repair or replace a particular tile, they can make these washers that are in the prior art, they would make them notched so that you could rotate the price. [00:09:10] Speaker 01: A good example is what I'm talking about is figures 12 and 15 in the patent. [00:09:19] Speaker 01: A37 and A40, I believe, where they show that if you rotate the notch washers around just so, you're able to remove one panel without having to remove many other panels to get to it. [00:09:31] Speaker 01: Then you replace that panel with a repaired panel and it makes it a convenient repair. [00:09:38] Speaker 01: And that's the advance. [00:09:39] Speaker 01: And my client [00:09:40] Speaker 01: had plenty of product that he sold prior to the notch washer being on the market without the notch, which is simply the standard washers locking the pedestal and the flooring together. [00:09:53] Speaker 06: Mr. Cunningham, at page 24 you argue that much of the conduct of Tilted's trial counsel is based on the fact that he normally practiced in California courts, not federal courts. [00:10:09] Speaker 06: This quote, this explains attorney's so-and-so's, his name, unfamiliarity with the more rigid practices in the federal court system. [00:10:20] Speaker 06: It's been a while. [00:10:21] Speaker 06: I went to law school in California. [00:10:24] Speaker 06: And I have some familiarity with the California Code of Civil Procedure. [00:10:30] Speaker 06: Do you have any authority that says that federal civil procedure is more rigid than California civil procedure? [00:10:41] Speaker 06: The courts are tougher in federal court than state court? [00:10:47] Speaker 01: Perhaps I was used to the wrong term, but certainly he was more familiar with the state court practices generally. [00:10:56] Speaker 01: I knew that I understand from my reading of the cases that he fully took this case on, fully thinking that it was going to settle quickly and that it had good reasons. [00:11:05] Speaker 06: So he didn't have to know the rules? [00:11:08] Speaker 01: Well, Your Honor, yes, he should by all means have [00:11:11] Speaker 01: uh... litigated plus settle attempted to negotiate some of this case that no no good to try to negotiate a settlement without also pursuing litigation parallel i know that he should have also brought in experience patent counsel uh... helping with federal court uh... rules and procedures by all means i just know that we don't know that no no no no no no no no the rules governing discovery and sanctions are the same [00:11:41] Speaker 06: no matter what. [00:11:42] Speaker 06: In patent cases, it's not different. [00:11:47] Speaker 01: I just know that he agreed to a six-month discovery cutoff. [00:11:51] Speaker 06: Not in those respects, at least. [00:11:52] Speaker 01: Well, I just know that he agreed to a six-month discovery cutoff case for a patent case that has 19 claims and several elements in each claim. [00:12:01] Speaker 06: I would have handled this... This is about spoliation and refusal to obey the orders of the court. [00:12:07] Speaker 01: Now, importantly, the spoliation, there was never any [00:12:10] Speaker 01: there's never any dispute over what these notch washers look like. [00:12:14] Speaker 01: Whether they had one in their hand or not, the fact is that my client destroyed them upon getting the cease and desist letter. [00:12:20] Speaker 01: There's no dispute over the notch washer. [00:12:23] Speaker 01: The fact that our client would have loved to use the notch washer as a convenience to its customers, but destroyed them to avoid the likelihood of any infringement by him or his colleagues. [00:12:36] Speaker 01: There is no dispute over what it looks like. [00:12:38] Speaker 01: So exfoliation, I think, is a [00:12:40] Speaker 01: In fact, it was withdrawn. [00:12:41] Speaker 01: The motion itself for sanctions on spoliation was withdrawn. [00:12:46] Speaker 01: The most important aspect of it is it really was no dispute over what the notch washers look like. [00:12:51] Speaker 01: It's no dispute over the fact that my client had some at one point when he got the cease and desist letter. [00:12:57] Speaker 01: It's not spoliation. [00:12:58] Speaker 01: It's just like any accused infringer would want to remove his inventory of that and did that before perhaps [00:13:08] Speaker 01: consulting counsel. [00:13:09] Speaker 01: I don't know exactly the timing, but it certainly wasn't something that he did in order to hide the fact that he had had some. [00:13:16] Speaker 01: He never denied that he had, not swashers to my knowledge. [00:13:19] Speaker 05: Mr. Cunningham, you're into your rebuttal time. [00:13:21] Speaker 05: Would you like to save the remainder? [00:13:22] Speaker 05: Yes, Your Honor. [00:13:24] Speaker 05: Very good. [00:13:25] Speaker 05: You're imposing counsel. [00:13:46] Speaker 02: Good morning, Your Honors. [00:13:47] Speaker 02: David Von Gutten appearing on behalf of the APOLE United Construction Products Inc. [00:13:52] Speaker 02: DBA Bison Innovative Products. [00:13:55] Speaker 02: And it may happen that I will refer to my client. [00:13:58] Speaker 02: When I do, I will refer to my client as Bison. [00:14:02] Speaker 02: With respect, I thought I would go right into some of the questions that were raised and make out some points that I think I needed to immediately address. [00:14:09] Speaker 02: One, with respect to the sanctions, the sanctions have never been paid. [00:14:12] Speaker 02: They've been demanded. [00:14:13] Speaker 02: They've never been paid. [00:14:15] Speaker 02: There is no gentleman's understanding. [00:14:17] Speaker 02: There is nothing to that effect. [00:14:19] Speaker 02: The only thing that was ever raised, I believe, was at the hearing before Judge Real is that, and I believe I'm pronouncing it correctly. [00:14:27] Speaker 02: I have always heard it Judge Real, though it looks like it should be Judge Real. [00:14:30] Speaker 02: I do not like to mispronounce judges' names. [00:14:33] Speaker 02: But Judge, the thing that was brought up by counsel was he thought that it could be included, the sanctions as part of some settlement. [00:14:40] Speaker 02: Well, yeah, they could have, but there is no settlement. [00:14:43] Speaker 02: the sanctions are unpaid. [00:14:45] Speaker 02: They have never responded. [00:14:47] Speaker 06: When the judge reads the transcript, it won't make any difference because it'll be spelled the same way both times you pronounce it. [00:14:52] Speaker 02: Correct, Your Honor. [00:14:53] Speaker 02: I believe that's true. [00:14:56] Speaker 02: With respect to the washers, I think Judge Wallach, you correctly noted it was from the evidence that a washer was sold, and it was after the case had been brought. [00:15:07] Speaker 02: There was an invoice. [00:15:09] Speaker 05: Judge Stoll was asking opposing counsel a very precise question, which is, why should they be banned in the injunction from selling the notched washer when the patent claims are not a single claim as to a notched washer? [00:15:26] Speaker 05: They're to a system overall, but the injunction very broadly [00:15:31] Speaker 05: prevents them from ever using a notched washer again in any other device, even if it was in a totally unrelated field. [00:15:39] Speaker 05: So why is that? [00:15:40] Speaker 02: I'm sorry. [00:15:40] Speaker 02: Didn't mean to interrupt. [00:15:41] Speaker 02: I believe, Your Honor, that the injunction says that they are not to infringe upon the patent as described in the tile products. [00:15:48] Speaker 02: And then it goes on to make it a little more clear, just to say it's the tile tech products, and then goes on to discuss the issues with respect to making sure it's nothing similar, that they don't try to [00:16:02] Speaker 02: do something else. [00:16:03] Speaker 03: What page is the injunction on? [00:16:05] Speaker 03: Can you direct me to it? [00:16:08] Speaker 02: I referred to it in my brief, Your Honor. [00:16:20] Speaker 05: Come on, one of you law clerks come up with it quicker than this. [00:16:23] Speaker 02: Okay, it'd be just A1, I believe it would be. [00:16:28] Speaker 02: The injunction is merely because, as I referred to it in the brief, Your Honor, and the issue in this case, I believe, more importantly, was about the fall. [00:16:38] Speaker 00: A5? [00:16:40] Speaker 00: No. [00:16:44] Speaker 00: I'm sorry, where did you say the injunction is? [00:16:48] Speaker 06: I have it here, Your Honor. [00:16:50] Speaker 06: A6, actually. [00:16:55] Speaker 06: Permanently enjoined. [00:16:58] Speaker 02: It would be under the first claim for relief. [00:17:02] Speaker 02: Got it. [00:17:03] Speaker 02: Thank you. [00:17:05] Speaker 02: So which page is? [00:17:07] Speaker 02: It's done under the first claim for relief, page A2. [00:17:14] Speaker 02: And then it's enjoined. [00:17:17] Speaker 00: You see paragraph two where it says defendant shall immediately surrender to plaintiff any mold or other device by which any notched washer utilized with the patent was made and any and all notched washers made by the plaintiff. [00:17:30] Speaker 00: The concern is that that language is more narrow than the scope of the claims. [00:17:36] Speaker 00: And I don't see where in your complaint you've alleged contributory infringement or induced infringement based on the sale of just the washers. [00:17:44] Speaker 02: Yes, Your Honor. [00:17:45] Speaker 02: The issue with respect to the patent is that the notched washers were the key part of the infringement. [00:17:51] Speaker 02: And so this was to eliminate the part of the infringement because this was a system. [00:17:56] Speaker 02: And the notched washers which made it special, which is what Mr. Cunningham recognized. [00:18:02] Speaker 02: OK. [00:18:03] Speaker 00: So your position is that even though the claims cover more than just a notched washer, the claims cover at least it's one element of the claim. [00:18:11] Speaker 00: And it's, to you, [00:18:13] Speaker 00: a special element that maybe is not sold as a staple in commerce. [00:18:19] Speaker 00: But I need to know, did you assert contributory infringement or just infringement just on the sale of the washer? [00:18:26] Speaker 02: We asserted the infringement and contributory infringement. [00:18:29] Speaker 02: The point is that these are made of tiles, decks. [00:18:33] Speaker 02: They're made of pedestal. [00:18:35] Speaker 02: And then it's the key to that system is the notch washer. [00:18:37] Speaker 02: So that was what was important. [00:18:39] Speaker 02: And that was also what was important to the [00:18:43] Speaker 02: as part of the discovery process of when there was a problem. [00:18:46] Speaker 00: I understand completely what the scope of the claims are, what the technology is. [00:18:51] Speaker 00: I understand what the patent's directed to. [00:18:53] Speaker 00: What I'm looking for is to see where it is that you allege that the washers alone contributorily infringed so that I can understand how the scope of the injunction is proper in light of your allegations which have been accepted as true. [00:19:10] Speaker 02: I would believe that would just be encompassed within the complaint. [00:19:13] Speaker 02: I cannot go for any further on that. [00:19:15] Speaker 00: You don't have a specific page or statement? [00:19:16] Speaker 02: I don't have a specific page to give you right now. [00:19:18] Speaker 02: I was focused more on the default judgment as opposed to the other two. [00:19:22] Speaker 02: But I believe that the other part of it, which is the scope of the injunction. [00:19:27] Speaker 05: Let me help you. [00:19:27] Speaker 05: Do you have your appendix? [00:19:28] Speaker 05: Yes, I do, Your Honor. [00:19:29] Speaker 05: Your complaint is at page 407. [00:19:32] Speaker 05: And this is the only place where you allege [00:19:37] Speaker 05: Contributory patent infringement. [00:19:39] Speaker 05: And page 408, your third claim of relief is where you allege induced infringement. [00:19:44] Speaker 05: The problem is you don't actually single out the washers anywhere. [00:19:47] Speaker 05: That's the only problem. [00:19:49] Speaker 02: Well, Your Honor, I'd have to stand on what's there. [00:19:51] Speaker 02: Because if we don't single out the washers, then we don't. [00:19:53] Speaker 02: But it was the washers were the key element or the key part of what made this special. [00:20:00] Speaker 05: Is it possible for them to use the washers in a product that would not result in infringement? [00:20:05] Speaker 02: If the notch washers were used in a totally different way, certainly. [00:20:11] Speaker 02: With respect to the system that's involved here, I believe no. [00:20:15] Speaker 02: They're using a round washer, I believe, or alleged that they're using a round washer now. [00:20:20] Speaker 02: And I would have to double check. [00:20:23] Speaker 02: But I do not believe, Your Honor, that that would probably infringe. [00:20:27] Speaker 06: Well, as I understand the order, they're not prohibited from possessing or using them. [00:20:33] Speaker 06: They're prohibited from manufacturing them. [00:20:36] Speaker 02: manufacturing selling, anything that's related to using those in a way that would compete with our products, thereby infringing the patent. [00:20:49] Speaker 05: So just to be clear, so you don't believe this injunction prohibits them from manufacturing notched washers and using them in a completely non-infringing manner? [00:21:03] Speaker 02: If there was a possibility of a non-infringing manner, [00:21:06] Speaker 02: Yes, but all we know is that's what they were used for, and that's what we were trying to prevent used in the system that is described in our patent. [00:21:14] Speaker 02: Now, I'm not sure of all the possibilities of what a notched washer could potentially be used for. [00:21:19] Speaker 02: There was no use for it that we are aware of other than this one use. [00:21:25] Speaker 02: And this is how they used it, and this is how they sold it, and this is how they market it. [00:21:29] Speaker 02: So that was why it had to be stopped with respect to the notched washer, yes. [00:21:36] Speaker 02: Going back to some of the points that we had that were raised, I believe, by Judge Wallach, is these were, as I said, the notch washers were not all given away. [00:21:49] Speaker 02: They were sold. [00:21:51] Speaker 02: We had one done after the case had been begun. [00:21:56] Speaker 02: With respect to the mold, we understand that they still have it, but they say... Where's that sale on the record? [00:22:02] Speaker 02: The sale in the record, or when it's mostly mentioned, is in the transcript of the testimony of the tile tech representative. [00:22:09] Speaker 02: And it's mentioned in my brief specifically where we went through, here's the invoice, here's the exhibit, here's all of this. [00:22:15] Speaker 02: And he said, I don't know where it came from, but it shouldn't have gone out if I had it. [00:22:20] Speaker 02: But it also showed that it had a tile tech logo on it as if it had come from a mold. [00:22:27] Speaker 02: And it was not cut, because that was part of the problem with the discovery process. [00:22:31] Speaker 02: They first say, we don't have any. [00:22:33] Speaker 02: And then when we created it, they were cut from plastic. [00:22:36] Speaker 02: And maybe they were made with a 3D printer. [00:22:38] Speaker 02: And then after the order to compel and after the motion for default was pending, then they said, oh, we have a mold. [00:22:46] Speaker 02: It was all through that process. [00:22:58] Speaker 02: With respect to the issue of saying that the tile text council was not familiar with federal rules, and I believe you pointed out how you thought that the rules, the judge told the council how the rules were the same, we weren't necessarily just even referring to rules. [00:23:20] Speaker 02: This is just not responding to discovery. [00:23:23] Speaker 02: And I think that's an important point to be made. [00:23:25] Speaker 02: With respect to the spoliation motion. [00:23:27] Speaker 02: The rules require you to respond to discovery. [00:23:29] Speaker 02: Yeah, that's true. [00:23:32] Speaker 02: With respect to the spoliation motion, and counsel said how it had been withdrawn. [00:23:37] Speaker 02: It was only withdrawn because judgment entered. [00:23:39] Speaker 02: There was no reason to keep a spoliation motion in effect when the judgment had already entered. [00:23:53] Speaker 00: How do you respond to the argument that the scope of the injunction is too broad because it requires bison to remove just images, not bison, but it requires, thank you, tile tech, to remove images of bison's product, even if they're not used in a way where they're attributing those images to themselves? [00:24:17] Speaker 02: Well, the only use we had ever seen for any of it was on [00:24:21] Speaker 02: pretty much through their website and maybe some other materials, where it's misrepresented. [00:24:25] Speaker 02: And that was the allegation. [00:24:26] Speaker 02: These were misrepresented as being their work or their project. [00:24:31] Speaker 02: And that itself is deceptive. [00:24:33] Speaker 02: And what was to remove them so that there is no indication or implication that these are their products. [00:24:41] Speaker 02: They were taking Bison's ideas, its intellectual property, its work, drawings, as well as other images of products. [00:24:49] Speaker 02: It was taking those things and passing it off essentially as their own. [00:24:54] Speaker 00: I understand. [00:24:55] Speaker 00: I completely understand that that's improper. [00:24:57] Speaker 00: My question is, could the injunction be read to also preclude them from doing, say, a comparison where there's your product with their different product that they come up with some design around, or somehow comparing the products? [00:25:14] Speaker 00: They would be able to use those. [00:25:16] Speaker 00: They would be able to attribute [00:25:18] Speaker 00: have images that are attributed as being your work correctly on their own website, didn't they? [00:25:24] Speaker 02: That could be, Your Honor. [00:25:26] Speaker 02: I don't think that the injunction would go that far, but if it did, we in the abstract, we have nothing to that effect that would show that that is some sort of problem that TileTech had. [00:25:37] Speaker 02: What we had here was [00:25:39] Speaker 02: We saw these things and demanded they remove them. [00:25:41] Speaker 02: They had them on there. [00:25:43] Speaker 02: They took drawings, took other things. [00:25:45] Speaker 00: I understand. [00:25:45] Speaker 02: I'm worried just about respectively. [00:25:48] Speaker 02: In the law of doing a comparison of products and attributing work, I don't think that really is at issue or applicable here. [00:25:55] Speaker 02: I don't think the injunction would go that far. [00:25:58] Speaker 02: And if it did, I think that it would be difficult to enforce. [00:26:01] Speaker 02: I don't think the injunction would prevent them from saying, here's a bison product and here's our product. [00:26:06] Speaker 02: And ours is trying to say ours is better. [00:26:09] Speaker 02: I don't think that's something that would be the proper subject of an injunction, but I don't think that's what's happening here. [00:26:15] Speaker 02: What this was done was to specifically deal with a specific problem, which was them, tile tech, excuse me, them, taking my client's work, my client's intellectual property, and passing it off on its own. [00:26:31] Speaker 02: That's what the injunction's for, and that's what I think it does. [00:26:34] Speaker 02: Because there was an allegation of misrepresentation by doing that. [00:26:38] Speaker 02: That was deemed to be true. [00:26:40] Speaker 02: And so that's what the injunction prevents. [00:26:46] Speaker 05: OK, Mr. Vaughan, do you have anything further? [00:26:49] Speaker 02: Yes, I was going to at least, and I can go further. [00:26:52] Speaker 02: The point that I was going to make, Your Honor, overall. [00:26:55] Speaker 02: Lawyers usually can always go further. [00:26:57] Speaker 02: Of course we can. [00:26:58] Speaker 02: We can always come up with something that's safe and simple. [00:27:00] Speaker 04: It's not a crime to give back time. [00:27:02] Speaker 02: I understand, Your Honor. [00:27:03] Speaker 02: But you know what? [00:27:04] Speaker 02: That's hard. [00:27:06] Speaker 02: I'll just conclude, Your Honor. [00:27:09] Speaker 02: I think the question is fairly straightforward. [00:27:13] Speaker 02: Are you allowing Tiltek, the appellant, to game the system, to not follow the rules, not follow court orders, waste my client's time and money, the court's time, delay, hinder, and obstruct bison and the litigation process, and then allow them to get away with it, simply by saying, counsel was inexperienced. [00:27:33] Speaker 02: It wasn't bad enough. [00:27:36] Speaker 02: Bison was really not hurt that badly. [00:27:38] Speaker 02: That is what they're telling the court and it is simply not true. [00:27:41] Speaker 02: Despite the examples also of why this case couldn't have gone to trial on the true set of facts, delay, the obstruction and delay was hard on my client because delay, justice delayed is justice denied. [00:27:59] Speaker 02: My client has to try to sell its products and having somebody doing what Piltek was doing. [00:28:04] Speaker 02: and them not being able to get to trial prevents that. [00:28:09] Speaker 02: Thank you very much. [00:28:14] Speaker 05: Okay, Mr. Cunningham with a few minutes of rebuttal time. [00:28:20] Speaker 01: Yes, Your Honor, thank you. [00:28:22] Speaker 01: First, I'd like to respond that counsel here for Bison was the one that actually drafted that judgment and those findings of facts and the [00:28:32] Speaker 01: A district court judge simply signed the judgment. [00:28:36] Speaker 01: It's called a regrettable practice in the Ninth Circuit that's disfavored according to the Anheuser-Busch case that I've cited in my briefs. [00:28:46] Speaker 01: So his unfamiliarity with it is a little surprising. [00:28:51] Speaker 01: The fact that the allegation that this nosh washer was sold with a wood paneling product is certainly disputed. [00:29:01] Speaker 01: In fact, there's no evidence saying it was. [00:29:04] Speaker 01: That's just a turning argument during a deposition, presenting something at a deposition saying this is what it was. [00:29:09] Speaker 01: There's no evidence that was elicited from any bison witnesses that provided that. [00:29:17] Speaker 01: In fact, one of the problems, of course, with a default judgment is that there's just simply no evidence here to one way or the other. [00:29:26] Speaker 01: But it is not the sale. [00:29:28] Speaker 01: It's certainly disputed. [00:29:28] Speaker 01: My client would have disputed that. [00:29:30] Speaker 05: Yes, but you now have counsel for bison on record in the appeal. [00:29:36] Speaker 05: And you can quote it back, if necessary, saying that he doesn't believe the injunction extends as far or could be applied legally against simply use of the washers in a totally non-infringing manner. [00:29:50] Speaker 05: And you likewise have the same statement by him as a representative of his client with regard to the Lanham Act [00:29:59] Speaker 05: claims as well and the marketing if you were to do so in a non-passing-off manner. [00:30:06] Speaker 05: So even if the language of the injunction could be read as broadly as you suggest it should, Council for Bison has taken a very reasonable interpretation of it and indicated that he does not read it to be that broad, and certainly you now have that admission by his counsel so that if your client does use the washers in a non-infringing manner, [00:30:27] Speaker 05: you have an admission by counsel that that wouldn't be covered under the scope of the injunction. [00:30:32] Speaker 06: And in any case, the injunction is preceded by precatory language in which the court notes that it's found that defendant used images of plaintiff's products, projects, and drawings on its website and through other marketing materials representing that such products, projects, and drawings are its own. [00:30:56] Speaker 06: Again, [00:30:56] Speaker 06: And that's what the injunction prohibits. [00:31:00] Speaker 01: Obviously, that also would be disputed if we could have the opportunity to pursue this case on its merits, which is favored. [00:31:08] Speaker 01: I mean, it's disputed. [00:31:09] Speaker 01: Our client was surprised to find that his website had an image that wasn't his own product. [00:31:14] Speaker 01: That's me on the record saying that's my understanding from my own client. [00:31:18] Speaker 01: I believe that's what the testimony says in the deposition too. [00:31:21] Speaker 01: He was surprised. [00:31:23] Speaker 01: In fact, it was very cryptic up until the deposition as to what on earth they were even talking about. [00:31:30] Speaker 01: They used a written house project. [00:31:34] Speaker 00: I don't think that that's something that we can consider a review on appeal. [00:31:38] Speaker 01: Okay, so in any event, I don't know of any authority that supports [00:31:44] Speaker 01: binding bison to what current counsel says in court here as to what this injunction reads. [00:31:52] Speaker 01: And it doesn't obviously deal with any of the gray area in between what is legally supportable as an injunction for patent infringement. [00:32:01] Speaker 01: And what he presented here, a statement in court, both in the trademark side, which is the last part of the injunction, and with the patent side, which is the first two [00:32:13] Speaker 01: parts of the first three parts of the injunction. [00:32:15] Speaker 05: Well, when you say you don't know of any legal precedent, I mean, I don't know how that can be when counsel makes a representation and then if they prevail in the case in part on the basis of that representation. [00:32:28] Speaker 05: And I think that representation becomes binding, whether it's claim preclusion, issue preclusion, race judicata, whatever, however you want to frame it. [00:32:36] Speaker 05: But I think that if counsel prevails in part on the basis of [00:32:40] Speaker 05: particular arguments it made that you can actually bring them up later if necessary. [00:32:46] Speaker 01: I just find two problems with it. [00:32:48] Speaker 01: One is the injunction is exceedingly overbroad on its face and would require that kind of representation both within the industry. [00:32:56] Speaker 01: I mean, after all these two are competitors and they have to convince customers that they're not going to be infringing if they take on a particular project from my client. [00:33:04] Speaker 01: So he's hindered in that way. [00:33:06] Speaker 01: He's going to have to both present [00:33:07] Speaker 01: both the injunction, but also, well, I know what the injunction says. [00:33:11] Speaker 01: It says any substantially similar product, but here's where counsel said in court that they would never apply it that far. [00:33:19] Speaker 01: And I think that would be very hard in a competitive sense between two competitors. [00:33:22] Speaker 00: I think that that language is clear in the injunction. [00:33:25] Speaker 00: The question is whether that language is clear, whether that substantially similar language is clear, is meaning substantially similar, no colorably different, [00:33:35] Speaker 00: meaning that it also would infringe the claims. [00:33:38] Speaker 00: That kind of language is actually supported by the case law as being appropriate for an injunction. [00:33:44] Speaker 01: Well, it's immediately following. [00:33:46] Speaker 01: It says, I may not be able to sell, use, make any adjustable building surface support product incorporating the patent or any substantially similar product. [00:33:57] Speaker 01: So on one hand, it's the product that incorporates a patent, and then it's common or any substantially similar [00:34:04] Speaker 01: product which strongly implies you're talking about products that don't incorporate the patent. [00:34:10] Speaker 01: That's what the language says. [00:34:11] Speaker 05: Mr. Cunningham, we're well beyond your rebuttal time, so we need to bring this case to close. [00:34:17] Speaker 05: I thank both counsel for their arguments, and this case is taken under submission. [00:34:21] Speaker 01: Thank you, Your Honor.