[00:00:00] Speaker 03:
I'll start where I finished, which was... If we reject your arguments in the previous case and conclude there's no Seventh Amendment right to a jury trial on issues you want it

[00:00:30] Speaker 03:
and we affirm the district court's award of fees there, what different arguments do you have in this case?

[00:00:36] Speaker 00:
Sure.

[00:00:39] Speaker 00:
The only real difference is the standard that would be applied to the application of collateral stopple, which says a full and fair opportunity for the issues to be heard, which is not the same as the Seventh Amendment, but it would allow the court to find on a different basis as to the California case, which is

[00:01:00] Speaker 00:
Even if you don't agree with me that we have a Seventh Amendment to have the jury decide our knowledge and intent in bringing suit, an issue that was never before the trier of fact and that cannot be decided by the court on the basis of things that it saw conduct during the litigation, then you could still find that we did not have a full and fair opportunity to litigate the issue

[00:01:24] Speaker 00:
because of the way that was presented, even if it didn't violate the Seventh Amendment.

[00:01:29] Speaker 03:
And that's because why?

[00:01:31] Speaker 03:
Because it seems to me from our discussion from the last round that you were allowed to present declarations and any kind of arguments and factual evidence you wanted to in the 285 proceeding.

[00:01:44] Speaker 00:
And that goes to Judge Newman's point, which is, or the question that you asked, I'm sorry, which is that during the 285 proceedings in the Avid case,

[00:01:54] Speaker 00:
The issue of our subjective bad faith in filing the action in the first instance was never squarely before the court.

[00:02:02] Speaker 00:
The court made a finding on that issue.

[00:02:04] Speaker 00:
What the parties really litigated was other aspects of 285, which the court did not find, warranted exceptional case sanctions.

[00:02:14] Speaker 00:
There was never a Rule 11 proceeding here.

[00:02:16] Speaker 03:
There was never... So when they moved for fees, they didn't suggest that you

[00:02:24] Speaker 03:
filed a case in bad faith?

[00:02:25] Speaker 00:
I don't think so.

[00:02:27] Speaker 00:
It was about whether, you know, whether we, you know, this conspiracy involving... There's no discussion about faith in any of the briefing or the hearing or the like?

[00:02:40] Speaker 00:
Well, it was about this conspiracy.

[00:02:42] Speaker 00:
It's about this story, this sordid tale involving Dr. Hardy and Dr. Mullen, where Mr. Sexton, my client, AIA, plays a small role and at every step of the way,

[00:02:53] Speaker 00:
is advised by counsel.

[00:02:55] Speaker 00:
He basically paid to prosecute the patent and to provide advice.

[00:02:59] Speaker 03:
You're not answering my question.

[00:03:00] Speaker 03:
I mean, if your argument was they asked for fees on one basis, all the briefing, all the argument, everything you needed to respond to was on that basis, and the district court, Suez-Fonte, came up with a second basis in its opinion for finding fees, then you might have an argument as to the collateral stopple.

[00:03:21] Speaker 03:
hear you saying that.

[00:03:22] Speaker 03:
And that wasn't my sense of the record.

[00:03:25] Speaker 03:
It seems perfectly clear that everybody knew what was being decided here.

[00:03:29] Speaker 03:
You had the opportunity to present argument and the evidence and discuss it at the hearing.

[00:03:34] Speaker 03:
You didn't seem to make any objections to asking for supplemental briefing or anything.

[00:03:40] Speaker 03:
I might have missed that.

[00:03:41] Speaker 00:
I'm at a little of a disadvantage, Your Honor, because I did not handle the underlying 285 proceeding.

[00:03:46] Speaker 00:
But it's my understanding of the record.

[00:03:48] Speaker 00:
that the issue of our substantive bad faith in filing suit was not the issue that was litigated.

[00:03:57] Speaker 00:
It was more this issue of you were involved in a conspiracy with Dr. Hardy and Dr. Mullen to deprive Imperial College of its interests and to deprive USF of its interests.

[00:04:12] Speaker 00:
And that's what was litigated.

[00:04:13] Speaker 00:
That's why the evidence about, you know, what USF said

[00:04:18] Speaker 03:
about wa- about waiver- But why isn't filing a patent suit, I mean, based upon that conspiracy, bad faith?

[00:04:25] Speaker 00:
Well, and this is important.

[00:04:27] Speaker 00:
The conspiracy involved three individuals, okay?

[00:04:30] Speaker 00:
The jury never made any findings about conspiracy.

[00:04:32] Speaker 03:
You're back to the jury things.

[00:04:33] Speaker 03:
I think that's what we talked about in the last case.

[00:04:35] Speaker 03:
I'm trying to determine what's different about this case, in the collateral stop on.

[00:04:40] Speaker 03:
You seem to suggest that even if we affirm there, there was some kind of process

[00:04:46] Speaker 03:
there that you weren't given that should have afforded you more process here.

[00:04:50] Speaker 03:
And I don't understand what it is.

[00:04:53] Speaker 00:
Well, they just basically resubmitted the briefs in the California case.

[00:05:00] Speaker 03:
OK.

[00:05:00] Speaker 03:
But that's the point of collateral estoppel.

[00:05:02] Speaker 03:
If you had a full and fair opportunity to litigate it in the other case, then that's perfectly fine.

[00:05:09] Speaker 03:
I'm just trying to find where in the 285 proceedings before the other court

[00:05:15] Speaker 03:
that you were denied some opportunity that you either asked for or made an objection to or that was an undue surprise that shouldn't afford collateral estoppel here.

[00:05:26] Speaker 00:
I'm not arguing that we didn't have a full and fair opportunity to argue the issues in the California case.

[00:05:32] Speaker 00:
I'm arguing that the California court mistakenly decided that we had a full and fair opportunity

[00:05:37] Speaker 03:
Well, that's what I just asked you.

[00:05:39] Speaker 03:
Where in the record of the other case did you make an objection, ask for the opportunity to submit different evidence, say this argument wasn't raised or anything like that, either in the briefing or the oral hearing or the like that would show that you thought you were deprived of the full opportunity there.

[00:05:59] Speaker 00:
AIA repeatedly objected to the fact that the court made findings that went beyond the scope of the jury's trust.

[00:06:05] Speaker 03:
That's not the same issue.

[00:06:06] Speaker 03:
Okay.

[00:06:07] Speaker 03:
If you lose on that, that's what I'm trying to get at.

[00:06:10] Speaker 03:
If your argument hinges on the Seventh Amendment issue or not.

[00:06:13] Speaker 00:
Well, it's not just the Seventh Amendment.

[00:06:15] Speaker 00:
I mean, it's also the fact that the opportunity to litigate the issue was clouded by the fact that there was findings of conspiracy and we were lumped in with these other bad actors, but the court never parsed that out.

[00:06:27] Speaker 00:
And the jury never made those findings.

[00:06:29] Speaker 00:
The jury's findings were very simple.

[00:06:31] Speaker 00:
The jury made findings about that we were

[00:06:34] Speaker 00:
There was a co-inventor.

[00:06:36] Speaker 00:
It was John Hardy.

[00:06:37] Speaker 00:
And that USF did not make an informed waiver.

[00:06:40] Speaker 00:
And that was the issue that was being argued to the jury.

[00:06:43] Speaker 00:
It has nothing to do with whether we brought suit in bad faith.

[00:06:47] Speaker 00:
And then in the context of the 285 proceeding, the discussion is about, I mean, they repeatedly talk about assorted tail.

[00:06:55] Speaker 00:
And it's about that conspiracy.

[00:06:56] Speaker 00:
But that conspiracy is not the basis for a finding that Sexton, AIA knew,

[00:07:03] Speaker 00:
that it had no valid patent when it filed suit, because we were different than the other members of the conspiracy that was never found by a fact finder.

[00:07:13] Speaker 00:
We were not a scientist.

[00:07:14] Speaker 00:
We did not participate in all that.

[00:07:17] Speaker 00:
We were not a lawyer.

[00:07:17] Speaker 00:
We were advised by counsel.

[00:07:19] Speaker 00:
And so navigating this complex world of nucleic acids and informed waivers, this businessman relied on those issues and filed suit.

[00:07:28] Speaker 00:
And he found a lawyer willing to take a case on a contingency, and not just any lawyer,

[00:07:33] Speaker 00:
Brian Cave.

[00:07:35] Speaker 00:
And I think that speaks to the fact that we got kind of swept up in this current that involved all these other people.

[00:07:43] Speaker 00:
And importantly, because we were deprived of our Seventh Amendment rights and because the process that was followed in the district court never really squarely put the question of, did you know, AIA, not everybody else, but AIA, when you filed suit, that your patents were invalid, notwithstanding the fact that the inventors were telling you that they

[00:08:02] Speaker 00:
that one was the inventor and the other was not.

[00:08:05] Speaker 00:
And that would stand to the fact that the lawyers said that USF waived.

[00:08:08] Speaker 00:
Nonetheless, did you know, as a factual matter, that you had no legal rights?

[00:08:17] Speaker 00:
And that's what went wrong here.

[00:08:20] Speaker 00:
Thank you.

[00:08:33] Speaker 01:
Ms.

[00:08:34] Speaker 01:
Fishman.

[00:08:35] Speaker 02:
Good morning, Your Honors.

[00:08:37] Speaker 02:
May it please the Court?

[00:08:39] Speaker 02:
I'd like to begin by responding to the argument just made by Mr. Buckley, suggesting that it was a surprise to AIA in the underlying Eastern District of Pennsylvania case that the issue of its bad faith might come up in an exceptional case proceeding.

[00:08:59] Speaker 02:
Just based on a review of the record, it's clear

[00:09:02] Speaker 02:
from the avid appeal that the issue of subjective bad faith and filing was squarely before the court and the parties in the exceptional case proceeding.

[00:09:11] Speaker 01:
There was a distinction drawn between the inventors or non-inventors or whatever and this businessman who took on the

[00:09:22] Speaker 01:
larger expenses of enforcing the patent?

[00:09:25] Speaker 02:
Well, fairly, Your Honor, the evidence at trial, and Juan was not a party to the trial below, but we're very familiar with the record, the evidence at trial was that Mr. Sexton, who's the principal of AIA, architected the scheme to defraud Athena Neurosciences as well as USF and Imperial College of their patent rights.

[00:09:44] Speaker 02:
So he wasn't some innocent bystander.

[00:09:46] Speaker 02:
He was the one who hatched the plan, was the evidence at trial, and involved both Drs.

[00:09:51] Speaker 02:
Hardy and Dr. Mullen

[00:09:53] Speaker 02:
in this conspiracy.

[00:09:54] Speaker 02:
Dr. Hardy, some 20 years later, turned whistleblower.

[00:09:58] Speaker 02:
But Dr. Mullen, who again Mr. Buckley characterizes as some scientist not involved in AIA, that's a misrepresentation.

[00:10:08] Speaker 02:
For years, Mullen was in fact the chief scientific officer of AIA, and he worked together with Mr. Sexton, not just in forming AIA, but in carrying out its activities and bringing suit.

[00:10:20] Speaker 02:
So Mr. Sexton is about as far, and AIA is about as far as you could find from someone who has led down the path.

[00:10:30] Speaker 02:
In fact, he was the one leading others down this path of conspiracy in order to defraud a university and a biotech company from the rights they'd invested in.

[00:10:39] Speaker 02:
But turning now to the issue of not only was the issue of bad faith squarely addressed, but in the avid appeal

[00:10:50] Speaker 02:
AIA argued that there was no bad faith in bringing suit.

[00:10:53] Speaker 02:
That's at Appendix 3853.

[00:10:55] Speaker 02:
And in the appendix in our joint case before the Northern District Court, we responded at Appendix 1186.

[00:11:06] Speaker 02:
So the issue of AIA's subjective bad faith was squarely part of the exceptional case proceeding.

[00:11:13] Speaker 02:
And as Mr. Buckley conceded during questioning,

[00:11:17] Speaker 02:
AIA had every opportunity to submit evidence in the exceptional case proceeding before the Pennsylvania Court.

[00:11:25] Speaker 02:
So turning now to the issue of whether or not the Northern District Court collateral estoppel ruling should be affirmed, the issue is did the Northern District of California Court air or abuse her discretion in applying collateral estoppel?

[00:11:40] Speaker 02:
And clearly the answer to that question is no.

[00:11:43] Speaker 02:
It is undisputed that the first three requirements for collateral or estoppel are met in this case.

[00:11:48] Speaker 02:
An AIA's sole argument is that it was deprived of a full and fair opportunity to litigate.

[00:11:54] Speaker 02:
Why?

[00:11:54] Speaker 02:
It says there were two reasons.

[00:11:56] Speaker 02:
First, AIA argues that it didn't have a full and fair opportunity to litigate because it didn't have a jury trial on the issue of exceptional case.

[00:12:05] Speaker 02:
And second, it argues that it was deprived of the ability to put certain evidence on

[00:12:12] Speaker 02:
during the exceptional case proceedings.

[00:12:15] Speaker 02:
So I will address each of these in turn.

[00:12:16] Speaker 02:
But before I do, I'd just like to focus the Court on the law that I'm sure it's very well aware of, of what it means to have a full and fair opportunity to litigate in the context of our collateral estoppel case law.

[00:12:30] Speaker 02:
As the Supreme Court has instructed in Blonder Tong, in addition to issues like choice of forum and incentive to litigate, other issues in the patent context can arise, such as

[00:12:41] Speaker 02:
Was the technical subject matter so beyond the judge?

[00:12:43] Speaker 02:
Did the judge apply the wrong legal framework?

[00:12:46] Speaker 02:
Or was the patentee without fault of his own deprived of crucial evidence or witnesses in the first litigation?

[00:12:51] Speaker 02:
And this court has held similarly.

[00:12:54] Speaker 02:
It is not, as this court noted in Banner versus US, that a mere disagreement with the legal ruling provides a basis to find that there was no full and fair opportunity to litigate.

[00:13:06] Speaker 02:
In this case, AIA chose the forum

[00:13:09] Speaker 02:
It chose Eastern District of Pennsylvania, had every incentive to litigate there.

[00:13:13] Speaker 02:
Exceptional case is not a technical issue.

[00:13:15] Speaker 02:
And AIA does not argue that the avid court misapprehended the relevant legal framework.

[00:13:20] Speaker 02:
Instead, their argument is that somehow they were deprived of crucial evidence in the first litigation.

[00:13:28] Speaker 02:
And again, it's important to keep in mind that Blondertong says they must have been deprived of crucial evidence through no fault of AIA's own.

[00:13:35] Speaker 02:
And those simply are not the facts here.

[00:13:37] Speaker 02:
So let's look at AIA's arguments one at a time.

[00:13:40] Speaker 02:
First, AIA argues that it had no jury findings on exceptional case.

[00:13:46] Speaker 02:
As this court has already recognized, there's no Seventh Amendment right to jury findings on exceptional case.

[00:13:52] Speaker 02:
And in fact, there's no precedent for jury findings on a fee recovery or fee statute that we're aware of.

[00:13:59] Speaker 02:
But even in the case where there is a jury right on an underlying issue of law,

[00:14:06] Speaker 02:
In the context of collateral estoppel, the absence of a jury does not deprive a litigant of a full and fair opportunity to litigate.

[00:14:15] Speaker 02:
Specifically, in the Supreme Court's Park Lane hosiery case, the absence of a jury trial did not deprive the plaintiff of its full and fair opportunity to litigate.

[00:14:25] Speaker 02:
The court specifically found that the absence of a jury trial was neutral to the issue of full and fair opportunity to litigate.

[00:14:32] Speaker 02:
And then again, this Court, in a patent case, quite relevantly, the issue very similar to the issue that's now being presented by AIA, a party pressed the issue that where summary judgment had been granted on obviousness below, and that was later applied collaterally for issue preclusion in a subsequent ruling, the appellant argued that it had been deprived of its Seventh Amendment right

[00:15:00] Speaker 02:
and that there was no full and fair opportunity to litigate because the underlying obviousness determination, which is an issue that can go to the jury, had been determined on summary judgment.

[00:15:10] Speaker 02:
And this court disagreed.

[00:15:12] Speaker 02:
This court said, we believe the rationale of Blondertong extends to all prior determinations of invalidity.

[00:15:19] Speaker 02:
Its application is not dependent on how the judgment of invalidity was reached.

[00:15:23] Speaker 02:
That was in Stevenson versus Sears Roebuck, a 1983 decision out of this court.

[00:15:29] Speaker 02:
AIA offers no legal support for its argument that the absence of a jury trial is tantamount to no full and fair opportunity to litigate, and the law of this court and the Supreme Court hold precisely the opposite.

[00:15:41] Speaker 02:
So then second, what is AIA's argument?

[00:15:45] Speaker 02:
AIA argues that evidence was improperly excluded from the jury trial.

[00:15:49] Speaker 02:
And as Judge Hughes has commented, this is a sleight of hand because

[00:15:54] Speaker 02:
The relevant issue is not whether or not AIA was able to put this evidence on in the jury trial.

[00:16:00] Speaker 02:
The issue is, what was before the court and exceptional case determination?

[00:16:03] Speaker 02:
And so the issue is, was AIA improperly deprived of crucial evidence in the exceptional case proceedings through no fault of its own?

[00:16:13] Speaker 02:
The answer there is a resounding no, it was not.

[00:16:17] Speaker 02:
Not only was the four pieces of evidence that AIA identifies in its briefing,

[00:16:23] Speaker 02:
three of which were affirmatively moved by AIA either into evidence or argued at the hearing on exceptional case.

[00:16:31] Speaker 02:
And then the fourth piece of evidence, they never sought to raise in the exceptional case proceeding.

[00:16:37] Speaker 02:
This is not a case where the Eastern District of Pennsylvania excluded evidence, where AIA submitted a brief or a declaration or an affidavit from the witness and the court excluded it, precluded the argument.

[00:16:51] Speaker 02:
The court received the evidence that they submitted.

[00:16:53] Speaker 02:
He just didn't find the evidence persuasive.

[00:16:56] Speaker 01:
What was the subject of this evidence?

[00:17:01] Speaker 02:
What was the subject?

[00:17:02] Speaker 02:
Certainly.

[00:17:03] Speaker 02:
So there were four pieces of evidence.

[00:17:05] Speaker 02:
The first was a Nature article.

[00:17:07] Speaker 02:
It's Appendix 737.

[00:17:08] Speaker 02:
It was a Nature article from June of 2000.

[00:17:15] Speaker 02:
And the Nature article is

[00:17:18] Speaker 02:
reporting on the discovery of a new mutation.

[00:17:22] Speaker 02:
And it's saying who discovered it and that they had just joined USF.

[00:17:28] Speaker 02:
So in other words, that's one of the pieces of the evidence.

[00:17:32] Speaker 02:
The other piece of evidence, it's Appendix 727 and Appendix 729, are letters from USF's Department of Psychiatry Chair, Dr. Anthony Redding, getting at whether or not USF has rights in the invention.

[00:17:46] Speaker 02:
And the fourth piece of evidence

[00:17:47] Speaker 02:
that they complained about but never sought to admit was a science news publication.

[00:17:52] Speaker 02:
All of these pieces of evidence had been used by AIA to argue that they did not knowingly defraud USF of rights to the Swedish mutation patent, the subsequent patent.

[00:18:09] Speaker 02:
So these were pieces of evidence that AIA put in to show that

[00:18:15] Speaker 02:
it had not acted in bad faith.

[00:18:17] Speaker 02:
Likewise, in the underlying proceeding, AIA submitted evidence that it had consulted with counsel on an inventorship determination when filing patents for the patent with the USPTO.

[00:18:31] Speaker 02:
Likewise, there was evidence that there had been some discussion of other rights with Swedish inventors.

[00:18:39] Speaker 02:
All sorts of evidence was put into the record in the exceptional case proceeding before Judge Savage

[00:18:45] Speaker 02:
that AIA contended showed that AIA had acted in good faith.

[00:18:50] Speaker 02:
Judge Savage just didn't believe it because it was incredible or the evidence didn't support the inferences that AIA sought to draw from them.

[00:18:57] Speaker 01:
They provided... That's what judges do, isn't it?

[00:19:01] Speaker 01:
Correct.

[00:19:01] Speaker 01:
They decide who they believe.

[00:19:02] Speaker 02:
That's exactly right.

[00:19:03] Speaker 02:
And the judge made the point both in his order and it's never been challenged, he was present

[00:19:11] Speaker 02:
for the eight days of witness testimony.

[00:19:13] Speaker 02:
He was able to gauge the credibility of the witnesses.

[00:19:16] Speaker 02:
He was receiving letters.

[00:19:19] Speaker 02:
The letters that AIA was relying on were based on Dr. Redding, who had no present memory of having ever been informed.

[00:19:27] Speaker 02:
And so it wasn't very credible to take a statement that he made when he may have been kept in the dark and use that as something saying that USF made a knowing waiver.

[00:19:38] Speaker 01:
But if the judge thought that some sort of fraud was

[00:19:41] Speaker 01:
being committed or so concluded, isn't there a high burden of establishing fraudulent intent?

[00:19:51] Speaker 02:
Isn't there a high burden of establishing fraudulent intent?

[00:19:54] Speaker 02:
I don't know.

[00:19:55] Speaker 02:
I apologize, Your Honor.

[00:19:57] Speaker 02:
I'm not counsel for Abbott.

[00:19:59] Speaker 02:
I don't know that the judge ever made below a finding of fraudulent intent, although I think there was a basis for it in the evidence of record.

[00:20:05] Speaker 02:
What the judge found is that AIA acted in bad faith.

[00:20:10] Speaker 02:
And the judge was entitled to do that.

[00:20:12] Speaker 02:
And the judge was entitled to do that based on both the credibility of the witnesses and the evidence that was submitted in the exceptional case proceeding.

[00:20:19] Speaker 01:
But bad faith is quite a loose concept, I would have thought, that there would have been some rigorous standards for establishing bad faith.

[00:20:29] Speaker 02:
Well, I imagine there are.

[00:20:31] Speaker 02:
I think in this case, the evidence more than satisfied what was required to be shown in bad faith.

[00:20:38] Speaker 02:
AIA doesn't challenge the actual findings made by the court.

[00:20:42] Speaker 02:
AIA doesn't come in to the underlying merits proceeding and say, the judge got it wrong.

[00:20:48] Speaker 02:
He completely overlooked this evidence or applied the wrong standard.

[00:20:51] Speaker 02:
That's not something AIA has raised, because there's not a basis to raise it.

[00:20:56] Speaker 02:
The evidence was overwhelming evidence.

[00:20:59] Speaker 02:
It wasn't just of Dr. Hardy, who is now the whistleblower, but it was two third party witnesses, actually three third party witnesses,

[00:21:07] Speaker 02:
who are disinterested parties, respected academics in their own right, who came forward and corroborated the fact that there had been a conspiracy architected by Mr. Sexton, the principal of AIA, along with doctors Mullen and Hardy, and that in fact there was fraud.

[00:21:27] Speaker 02:
That there was fraud in depriving Imperial College of its rights.

[00:21:31] Speaker 02:
There was fraud in depriving USF of its rights.

[00:21:34] Speaker 02:
And there was ample record evidence if the jury had been asked to find it.

[00:21:40] Speaker 02:
But the jury wasn't asked to find it.

[00:21:42] Speaker 02:
And then in the proceedings before the judge, AIA was able to put in all of the evidence it wanted to to say why there was some other explanation, why perhaps it didn't act in bad faith.

[00:21:56] Speaker 02:
And they put in all the evidence they wanted to put in.

[00:21:58] Speaker 02:
And the judge, just based on his weighing of the evidence, made the finding that

[00:22:04] Speaker 02:
they did not act in good faith, that AIE knew when it brought suit, that it did not have proper title, and that it had taken steps to deprive other interested parties.

[00:22:13] Speaker 01:
Well, there was no finding here, right?

[00:22:15] Speaker 01:
It was just entirely a matter of collateral estoppel.

[00:22:18] Speaker 02:
Correct.

[00:22:19] Speaker 02:
So that is absolutely correct.

[00:22:21] Speaker 02:
So Judge Laporte in the Northern District of California is just applying collateral estoppel and is not making independent findings.

[00:22:29] Speaker 02:
So the relevant inquiry for whether or not there was a full and fair opportunity to litigate

[00:22:34] Speaker 02:
is did AIA have the opportunity before Judge Savage in the Eastern District of Pennsylvania to put forward any evidence or was it somehow deprived of crucial evidence through no fault of its own?

[00:22:46] Speaker 02:
And the answer here is they were not deprived of any evidence and any evidence that wasn't put in that they wanted to be put in was not put in at their own election.

[00:22:56] Speaker 02:
And for that reason they had a full and fair opportunity to litigate and the District Court in Northern District should be affirmed in our collateral estoppel ruling.

[00:23:06] Speaker 02:
Did I answer the question, Your Honor?

[00:23:09] Speaker 01:
Well, I suppose it answers the question.

[00:23:14] Speaker 01:
Here, apparently, it was just, let's see what the other side does.

[00:23:20] Speaker 01:
And that's enough for me.

[00:23:23] Speaker 01:
And one must wonder how full and fair that was in a different court.

[00:23:33] Speaker 02:
OK.

[00:23:34] Speaker 02:
If there are no further questions, Your Honor, I'll sit down.

[00:23:40] Speaker 01:
Thank you, Ms.

[00:23:40] Speaker 01:
Fisherman.

[00:23:41] Speaker 02:
Thank you.

[00:23:46] Speaker 00:
Mr. Buckley.

[00:23:46] Speaker 00:
Like I've been up here all day.

[00:23:47] Speaker 00:
Thank you for your indulgence.

[00:23:49] Speaker 00:
Just want to point out something that was discussed.

[00:23:53] Speaker 00:
The jury was never asked to make any findings about AIA's intent or state of mind.

[00:23:57] Speaker 03:
I think we're pretty aware of that.

[00:23:59] Speaker 03:
You've been arguing that for the last 20 minutes.

[00:24:01] Speaker 03:
I mean, we're on a collateral stoppable issue.

[00:24:04] Speaker 03:
So what do you have to say in response to your friend's notion that you were given a full opportunity to present any evidence or argument you wanted to in the Pennsylvania court and that any failure to present more evidence was your choice?

[00:24:21] Speaker 03:
Is there any specific thing you think you could have presented in the Pennsylvania court that you weren't allowed to?

[00:24:28] Speaker 00:
It's not a question of allowed.

[00:24:30] Speaker 00:
I think it's a question of how the issue was framed.

[00:24:32] Speaker 00:
After a long trial that focused on this conspiracy and this issue with USF's waiver and the issue of inventorship, they found themselves in the exceptional case proceedings before Judge Savage, where those issues again remain the focus.

[00:24:50] Speaker 00:
USF conspiracy and PTO.

[00:24:53] Speaker 00:
The focus never really shifted to whether AIA was

[00:24:57] Speaker 00:
had an intent to bring suit in bad faith.

[00:25:04] Speaker 00:
And frankly, the fact that AIA had the same counsel advising it about the issues of exceptional case that it did when it brought suit makes it difficult for them to look back and say, let's put our own conduct before the court.

[00:25:20] Speaker 00:
That's relevant.

[00:25:21] Speaker 00:
AIA's discussions with these lawyers at Brian Cave

[00:25:25] Speaker 00:
uh... a i a s you know their analysis of the issues that was never before the district would never well the lawyers that represented a i a that also filed the action did not try to put that evidence but it was in part because the way the issues were being framed by the court and by opposing counsel where the whole focus of the standing was an allegation that conspiracy

[00:25:51] Speaker 03:
to basically defraud somebody of their patent rights, that your good faith effort in relying on that patent would have been at issue in a 285 proceeding?

[00:26:01] Speaker 00:
Well, it certainly was.

[00:26:02] Speaker 00:
And they argued, you know, we proceeded in good faith.

[00:26:05] Speaker 00:
Dr. Mullen, who told us that he was the inventor, you know, that was the basis.

[00:26:11] Speaker 00:
He signed the affidavit before the PTO.

[00:26:13] Speaker 00:
Dr. Hardy, who, as they said, later turned whistleblower, he said for years, I'm not the inventor.

[00:26:20] Speaker 00:
And Sexton goes to the lawyers and says, there's these two guys and they have this nucleic acid invention.

[00:26:26] Speaker 00:
Tell me what I should do.

[00:26:27] Speaker 00:
And they say, Hardy is the inventor.

[00:26:30] Speaker 00:
Excuse me.

[00:26:30] Speaker 00:
Mullins the inventor.

[00:26:31] Speaker 00:
Hardy is not.

[00:26:32] Speaker 00:
You have a basis.

[00:26:33] Speaker 00:
So on the basis of their advice, they apply to the PTO.

[00:26:36] Speaker 00:
Then they have this issue with USF.

[00:26:38] Speaker 00:
And again, he's saying, how do we navigate this circumstance?

[00:26:41] Speaker 03:
He goes to lawyers and they say, this seems to be a factual

[00:26:45] Speaker 03:
description that was the one propounded by your client in the standing trial but was not the one that was accepted.

[00:26:54] Speaker 00:
Well and that's important your honor because this was not what this was the part that was excluded from the standing trial because Judge Savage said AIA's intent and state of mind is not relevant to determining whether Hardy was actually a co-inventor and whether USF actually had an informed waiver.

[00:27:11] Speaker 00:
It was USF's state of mind and the facts underlying the

[00:27:15] Speaker 00:
the inventorship that was an issue in that trial.

[00:27:18] Speaker 00:
So Savage said, that doesn't come in.

[00:27:20] Speaker 03:
And then, after he... And so, in the 285 proceedings, did you make a request to put that information in?

[00:27:27] Speaker 00:
Well, certainly they, in the briefing, they pointed to some of these things, but they were not permitted discovery.

[00:27:35] Speaker 00:
They were not permitted to call witnesses.

[00:27:37] Speaker 00:
It was a very streamlined proceeding.

[00:27:40] Speaker 03:
Did you ask for discovery?

[00:27:42] Speaker 03:
Did you ask to call witnesses?

[00:27:44] Speaker 00:
No.

[00:27:45] Speaker 03:
Why are you pointing that out?

[00:27:47] Speaker 03:
I mean, it's irrelevant.

[00:27:48] Speaker 00:
Well, because we didn't realize that it would be relevant until the judge made a finding about our knowledge and intent, which were never before him in bringing suit.

[00:27:55] Speaker 03:
Can you let me ask my question?

[00:27:57] Speaker 03:
You can't talk over me.

[00:27:58] Speaker 00:
Oh, I'm sorry.

[00:27:59] Speaker 03:
You didn't realize in a 285 proceeding that the good faith in filing the case would be at issue?

[00:28:08] Speaker 03:
Of course you did.

[00:28:09] Speaker 03:
I mean, that's the whole point of a 285 proceeding.

[00:28:12] Speaker 00:
No, the 285 proceeding in the district court was focused on the allegation that AIA conspired to defraud the PTO and conspired to defraud USF, not AIA's state of mind when it filed suit.

[00:28:29] Speaker 03:
But it's based upon the same thing.

[00:28:31] Speaker 03:
I mean, they didn't come up with an independent bad faith intent to file the suit, like vexatious litigation or the like.

[00:28:38] Speaker 03:
It was bad faith because you relied on a patent that

[00:28:42] Speaker 03:
was acquired through a conspiracy.

[00:28:45] Speaker 00:
Advised by counsel all the way.

[00:28:47] Speaker 00:
And I think the point is that Judge Savage, if you look at his opinion, and it focuses on what AIA knew when it brought the action, which was never an issue that was tried to the jury and never an issue that was really discussed in the exceptional case proceeding.

[00:29:03] Speaker 00:
There was a trial about something else.

[00:29:05] Speaker 00:
And then this issue forms the basis of $15 million in sanctions against AIA

[00:29:11] Speaker 00:
You know, it was advised by counsel the entire time.

[00:29:14] Speaker 00:
The other thing I wanted to point out is that, and again, this is sort of where I think we're missing each other.

[00:29:21] Speaker 00:
We're not arguing that there's a jury trial right for exceptional case in a broad sense.

[00:29:26] Speaker 00:
We're arguing that there is a jury trial right for findings about knowledge and intent.

[00:29:31] Speaker 00:
And when those issues are never presented to the jury, when those issues are not part of the bifurcated trial, then

[00:29:40] Speaker 00:
there's a momentum in a way that it's unfair in a violation of our seventh amendment right to bring them back and use that as the basis for the exceptional case finding against AIA.

[00:29:52] Speaker 00:
If it was something else, if it was somebody did something in the litigation, I mean, by all accounts, this was professionally litigated.

[00:29:59] Speaker 00:
You know, I was sort of on the sidelines during this litigation.

[00:30:02] Speaker 00:
I'll tell you that nobody had any idea.

[00:30:04] Speaker 00:
These issues were totally blindside of the lawyers of Brian Cave.

[00:30:07] Speaker 00:
These are very good lawyers on the other side.

[00:30:10] Speaker 00:
Again, this is punishing AIA for losing and creating a situation where, process-wise, the court can reach outside the bounds of the entire proceedings that were before it and make findings about issues that require a jury, and require a jury of peers to decide whether this businessman was OK to rely on these lawyers to tell them about the complex areas of the law and scientists about complex science, nucleic acids,

[00:30:40] Speaker 00:
I mean, this is not stuff that ordinary people know.

[00:30:42] Speaker 00:
They go to lawyers and they ask for help, and these lawyers told them, you've got a USF waived, you know, the PTO, Mullen's the inventor, and you can file suit.

[00:30:53] Speaker 00:
And each question had evidence on both sides.

[00:30:57] Speaker 00:
Each question had evidence on both sides.

[00:30:59] Speaker 00:
And to punish AIA with such a significant sanction following this process, I think, is unfair and a violation of the Seventh Amendment.

[00:31:07] Speaker 00:
Thank you.

[00:31:08] Speaker 00:
Thank you for your time.

[00:31:09] Speaker 00:
Thank you.

[00:31:09] Speaker 01:
Thank you both.

[00:31:10] Speaker 01:
The case is taken under submission.