[00:00:20] Speaker 03:
All right.

[00:00:21] Speaker 03:
I'm going to say topic.

[00:00:22] Speaker 03:
Am I right or wrong?

[00:00:23] Speaker 03:
Awesome.

[00:00:24] Speaker 03:
Mr. Topic, please proceed.

[00:00:29] Speaker 01:
Good morning, Your Honors.

[00:00:30] Speaker 01:
It pleases the courts.

[00:00:31] Speaker 01:
The patent issue in this case relates to communication cycles in a medium access control protocol among a group of communicators.

[00:00:40] Speaker 01:
We're here on a order granting motion to dismiss.

[00:00:44] Speaker 01:
The issue was not the sufficiency of the pleading or whether these were just bare bones allegations.

[00:00:49] Speaker 01:
There was a claim chart that was attached to the second amended complaint.

[00:00:52] Speaker 01:
The issue here is one of claim construction.

[00:00:55] Speaker 01:
And the issue is whether remotes, as is used in various parts of the claims, can include one remote.

[00:01:02] Speaker 01:
And the district court found the claims cover only communications where a single remote communicates with a hub.

[00:01:09] Speaker 01:
Sorry, it does not cover claims where

[00:01:11] Speaker 01:
communications are between a single remote and a hub during a communication cycle.

[00:01:17] Speaker 04:
Even if we agree with you, though, on this claim construction issue, don't you still have the repeating cycle limitation?

[00:01:24] Speaker 04:
I mean, what the district court found, and you know, the district court said, okay, you've complied with Tom Lennickball, but maybe you've, because you submitted so much, you've fled yourself out of court.

[00:01:36] Speaker 04:
because you affirmatively pled that the allegedly infringing products work in a certain way.

[00:01:44] Speaker 04:
And it doesn't include a repeating cycle.

[00:01:47] Speaker 01:
So a couple points on repeating cycle.

[00:01:49] Speaker 01:
The district court found that there wasn't any repeating that had been alleged.

[00:01:54] Speaker 01:
I don't think that's in dispute anymore.

[00:01:55] Speaker 01:
I think ComEd concedes that the cycle does repeat.

[00:01:58] Speaker 01:
These are smart meters.

[00:02:00] Speaker 01:
Of course they're going to repeat.

[00:02:01] Speaker 01:
They don't just communicate information once and then

[00:02:04] Speaker 01:
do nothing further.

[00:02:06] Speaker 01:
So I don't think the repeating part is really an issue anymore.

[00:02:10] Speaker 01:
The issue was getting at this notion of there being different types of intervals, three different intervals.

[00:02:17] Speaker 01:
The hub allowed to transmit, the remotes allowed to transmit, and the remote expecting to receive the transmission.

[00:02:25] Speaker 01:
And what this court said in the Medtronic appeal was that those first and those third things presumably are not mutually exclusive.

[00:02:33] Speaker 04:
And really what the district court held was that- But the court also said in that that the intervals have to be predetermined.

[00:02:39] Speaker 04:
And to the extent there's any repetition, it just means that someone's going to start it up again.

[00:02:44] Speaker 04:
It's not like there's any predetermined communication, right, in the accused devices?

[00:02:49] Speaker 01:
So that issue really wasn't decided by the district court.

[00:02:52] Speaker 01:
I mean, the issue was simply whether were they repeating cycles or not.

[00:02:56] Speaker 01:
The predetermined part, I don't think, is really properly at issue.

[00:03:00] Speaker 01:
The issue that's been argued here and at the district court was whether the intervals, the laying out of the three different intervals is consistent or inconsistent with the single remote theory.

[00:03:13] Speaker 04:
Well, you would be bound by this court's prior determination, even though it related to a different claim, about the predetermined language, would you not?

[00:03:22] Speaker 01:
I'm sorry, one more time.

[00:03:23] Speaker 04:
You would be bound by this court's determination that the intervals have to be predetermined, would you not?

[00:03:29] Speaker 04:
I mean, because even though you're talking about a different claim, the language is the same.

[00:03:33] Speaker 01:
At the top of my head, I would say yes.

[00:03:34] Speaker 01:
All right.

[00:03:35] Speaker 04:
So what's your infringement theory on predetermined intervals?

[00:03:41] Speaker 01:
That's simply not an issue that was decided.

[00:03:44] Speaker 01:
I mean, the district court has it.

[00:03:45] Speaker 04:
I get that.

[00:03:45] Speaker 04:
But I want to know whether or not you're asking us to engage in an exercise of futility.

[00:03:51] Speaker 01:
No, I don't think at all that.

[00:03:53] Speaker 04:
So what's your infringement theory on predetermined intervals?

[00:03:57] Speaker 01:
Well, what I can point you to is what's in the record in the exhibit B to the second amendment.

[00:04:03] Speaker 04:
In your chart.

[00:04:04] Speaker 04:
I don't see anything about predetermined, so.

[00:04:09] Speaker 01:
Right.

[00:04:11] Speaker 01:
I mean, I'm extemporaneously going to look at this, because the issue wasn't decided by the district court.

[00:04:17] Speaker 04:
I understand.

[00:04:29] Speaker 04:
Why don't you look at the... Sure.

[00:04:36] Speaker 04:
So in your chart at the bottom of the first page, 111.

[00:04:40] Speaker 01:
What I would say in general is what you have is the, you have the hub

[00:04:58] Speaker 01:
that initiates the communication cycle in which there's a request, and then there is a response to the request.

[00:05:06] Speaker 01:
So the length of time in what those intervals are function that's within the protocol.

[00:05:13] Speaker 01:
So therefore, I'm not sure what we're getting at exactly with predetermined or not, or what level of predetermined or I think predeterminable is the actual limitation.

[00:05:26] Speaker 01:
I don't mean to defer or punt on that issue, only to say that the district court should decide that in the first instance.

[00:05:35] Speaker 04:
Why is it that when the district court gave you opportunities to have hearings on these motions to dismiss, you just didn't show up?

[00:05:45] Speaker 01:
This is not going to be a completely satisfactory answer.

[00:05:48] Speaker 01:
I've taken the case over from prior counsel, and honestly, I don't know the answer to what happened, what the issues were, and how this all evolved.

[00:05:55] Speaker 01:
I don't know why he didn't show up.

[00:05:58] Speaker 01:
Obviously, he showed up.

[00:05:59] Speaker 04:
But that shouldn't really impact.

[00:06:00] Speaker 04:
Repeatedly didn't show up.

[00:06:02] Speaker 04:
And then finally shows up the third time and begs for mercy again.

[00:06:05] Speaker 01:
Well, that shouldn't.

[00:06:08] Speaker 01:
I understand the frustration.

[00:06:09] Speaker 01:
I do.

[00:06:10] Speaker 01:
I don't think that should really impact what the claim says and whether this has been adequately pledged or not.

[00:06:16] Speaker 01:
And I think, to your point, I think the district court opinion should make notes of that, certainly ComEd.

[00:06:22] Speaker 01:
But that really isn't the issue.

[00:06:24] Speaker 01:
The issue is whether we have adequately applied infringement and whether a single remote theory has been properly applied.

[00:06:32] Speaker 01:
So arguably, that could be a factor in determining whether there should be any further amendments.

[00:06:37] Speaker 01:
But we're not asking to do that.

[00:06:39] Speaker 01:
What we're saying is the second amended complaint, as it's applied, has alleged all the necessary limitations.

[00:06:45] Speaker 01:
And that the construction that the district court used to find otherwise

[00:06:49] Speaker 01:
is wasn't proper, that it doesn't follow the rules of claim construction.

[00:06:53] Speaker 01:
And we really didn't have even a proper claim construction hearing.

[00:06:56] Speaker 01:
This all just sort of evolved within the context of a motion to dismiss.

[00:07:00] Speaker 01:
It's not to say that that can't be done, and we recognize that the law has changed on what's required in the pleadings.

[00:07:06] Speaker 01:
But I think there's a risk that you take when you do this on sort of an ad hoc basis during motion to dismiss briefing that doesn't have the same rigor that a normal claim construction would have,

[00:07:17] Speaker 01:
some of the result here, which at the end of the day is largely this.

[00:07:20] Speaker 01:
The district court judge looked at the totality of the patent and found that what the problem was trying to solve really only made sense if you were looking at multiple remote systems.

[00:07:30] Speaker 01:
But that purpose can't trump the preamble, which says a communicator communicating with least one other communicator.

[00:07:44] Speaker 01:
So the district court didn't really do anything with the preamble.

[00:07:49] Speaker 01:
First, we think it is limiting.

[00:07:51] Speaker 02:
Do you have any good faith belief that ComEd has any one hub, one remote systems?

[00:08:00] Speaker 01:
So I think part of that question gets at the difference between

[00:08:04] Speaker 01:
The term group is used in the claims.

[00:08:07] Speaker 01:
And the system is a whole.

[00:08:09] Speaker 01:
I mean, yes, there are smart meters at multiple homes.

[00:08:15] Speaker 01:
But group is defined in the claim as these two communicators that are communicating over a communication cycle.

[00:08:24] Speaker 01:
So there isn't just one group all the time.

[00:08:27] Speaker 01:
And I think that's part of where the district court erred.

[00:08:31] Speaker 01:
It's conflating the network as a whole with the group at any given time in any given communication program.

[00:08:39] Speaker 02:
Are you trying to tell me that if there's one hub that communicates with 15 different remotes in a neighborhood, that perhaps if you define group differently, when that hub communicates with just one of those remotes, that would satisfy these limitations?

[00:08:54] Speaker 01:
Correct.

[00:08:55] Speaker 01:
Because it's built off of what the communication cycle among the group.

[00:09:00] Speaker 01:
And the group can include one hub and one remote.

[00:09:04] Speaker 01:
It doesn't talk about the entirety of the network.

[00:09:07] Speaker 01:
It talks about the group at any given time.

[00:09:10] Speaker 03:
And the other issue, I think, where the district court cared was- Do you believe that the claim requires the accused system to execute under a MAC protocol?

[00:09:26] Speaker 03:
Do you believe the claim requires the system to execute using a MAC protocol?

[00:09:33] Speaker 01:
Yes, the MAC protocol is part of the claims.

[00:09:37] Speaker 03:
Correct.

[00:09:37] Speaker 03:
So how have you alleged that they are utilizing a MAC protocol?

[00:09:46] Speaker 01:
It's the communication protocol that governs when the hub can communicate to the remote and when the remote communicates back to the hub.

[00:09:57] Speaker 03:
Am I right that one at Skilniot would understand a MAC protocol to be a protocol that is utilized in multiple remote scenario?

[00:10:11] Speaker 03:
I've never heard of or seen any evidence, and certainly there's no disclosure in this patent, of a MAC protocol in the context of one remote, one hub, where there isn't a need to worry about allocating interval times.

[00:10:24] Speaker 01:
So the preamble specifically says, communicator with at least one other communicator.

[00:10:30] Speaker 01:
So in the context of this patent, it's talking about the possibility of having that happen.

[00:10:36] Speaker 01:
In terms of why you would do that, there is some discussion in the, it's in column 11 about, sorry, it's not a column 11, but there's discussion about the need, and even in this court's prior ruling in Medtronic,

[00:10:52] Speaker 01:
that even when it's one hub and one remote, there is still a need to have an orderly process for those communications so that there's not collisions between the hub and the remote at any given time during the communication.

[00:11:07] Speaker 01:
So it's not inconsistent with that purpose to apply the claims to a single hub with a single remote.

[00:11:17] Speaker 01:
In taking even a step back from that,

[00:11:19] Speaker 01:
What the district court really did was attempt to find a disclaimer of a single remote in a single hub system.

[00:11:26] Speaker 01:
And there's nothing that's been pointed to that rises anywhere near the level of there being a disclaimer.

[00:11:31] Speaker 01:
There's discussion about a multiple remote system, but you also have a preamble that specifically calls for at least two, not more than two.

[00:11:43] Speaker 01:
And you have the very purpose for why you have these kinds of community

[00:11:47] Speaker 01:
protocols are not at all inconsistent with the single hop in a single rebuttal.

[00:11:51] Speaker 03:
Your volunteer rebuttal time, do you want to save it?

[00:11:57] Speaker 01:
No.

[00:11:58] Speaker 01:
Well, yes.

[00:11:59] Speaker 01:
OK.

[00:12:00] Speaker 03:
Seems like a strange response, but it's your time.

[00:12:03] Speaker 01:
Right.

[00:12:04] Speaker 01:
I guess the fee issue, I think, largely turns on the just, I mean, obviously, if you reverse, then there's no fees.

[00:12:10] Speaker 01:
But the question is, really, was it a plausible claim construction?

[00:12:15] Speaker 01:
And I think we've laid out.

[00:12:16] Speaker 01:
Wait.

[00:12:16] Speaker 02:
So if we don't reverse on the 12b6, do you have any separate arguments as to why fees should change?

[00:12:25] Speaker 01:
Yes, sorry, I inadvertently gave you that answer.

[00:12:28] Speaker 01:
The answer is yes, because the question isn't whether the claim construction was wrong, it's whether it was plausible.

[00:12:35] Speaker 01:
And I think relying on the preamble with a good argument as to why the preamble is limiting, or at the very least ought to be considered, and a good explanation for how it's consistent with the purpose of the invention,

[00:12:47] Speaker 01:
I don't think that rises anywhere near to the level of extraordinary.

[00:12:51] Speaker 01:
So I think even if you affirm, you should reverse that.

[00:12:54] Speaker 01:
You should reverse on the fees.

[00:12:55] Speaker 01:
And I think the district court should have paid more attention to it or should have given more weight to what it said about comments behavior in this case, too.

[00:13:03] Speaker 01:
So I'll save the remaining time for that.

[00:13:07] Speaker 03:
Mr. Lemley.

[00:13:12] Speaker 00:
Thank you, Your Honor.

[00:13:12] Speaker 00:
May it please the court.

[00:13:16] Speaker 00:
Complaints, not only the original complaint, the First Amendment amended complaint, even the second amended complaint, don't accuse a single smart meter system.

[00:13:23] Speaker 00:
They accuse any smart meter, any system with one or more remotes.

[00:13:28] Speaker 00:
Now, it is undisputed at this point in the case that any system with more than one remote cannot infringe.

[00:13:35] Speaker 02:
Can you respond to, I was a little surprised to hear your friend's answer, that a system where you have one hub

[00:13:42] Speaker 02:
And 15 remotes can nevertheless constitute a one hub one remote system, depending on how you define grew.

[00:13:48] Speaker 00:
Yes, I was a bit surprised by that to your honor, because it's not just the case that they changed their theory of infringement from the three complaints, which say one or more to the motion to dismiss.

[00:14:00] Speaker 00:
That's a new theory of infringement that I don't understand to be articulated in the

[00:14:04] Speaker 00:
court below or in the Court of Appeals briefs.

[00:14:07] Speaker 00:
I think it makes frankly nonsense of the patent.

[00:14:10] Speaker 00:
The whole point of the patent is to control and coordinate communications among multiple remotes to prevent collisions that would interfere with the signals.

[00:14:20] Speaker 04:
What do you do about the language that says that all you need is at least one additional communicator?

[00:14:25] Speaker 00:
Well that's not actually what the language says, Your Honor.

[00:14:27] Speaker 00:
The language of the preamble, assuming it's limiting, says defines a communicator as either the hub or the remote

[00:14:33] Speaker 00:
And it says merely that a communicator must be able to wirelessly transmit frames to and receive from at least one additional communicator.

[00:14:43] Speaker 04:
That's true.

[00:14:44] Speaker 04:
And they define the hub as a communicator.

[00:14:47] Speaker 00:
But it does not follow, I think, Your Honor, that the hub only communicate to one.

[00:14:52] Speaker 00:
Because remotes are also defined as communicators, that language makes perfect sense in the context of the claims.

[00:14:58] Speaker 00:
A system, a communicator needs to be able to communicate.

[00:15:02] Speaker 00:
The remote needs to be able to communicate with only one additional communicator, the hub.

[00:15:06] Speaker 00:
The remotes never communicate amongst themselves.

[00:15:08] Speaker 00:
The hub, by contrast, needs to be able to communicate with each different remote.

[00:15:12] Speaker 00:
So the language in the preamble is perfectly consistent with saying, you've got to have communicators that must be able to communicate to at least one other communicator.

[00:15:21] Speaker 00:
That's all the remote does.

[00:15:23] Speaker 00:
But you've also got to have a MAC protocol.

[00:15:25] Speaker 00:
And the entire basis of the body of the claim is directed to the entire point of the invention, which is how do we allocate communication signals and timing between multiple remotes.

[00:15:35] Speaker 03:
Is your argument that the preamble is not a limitation?

[00:15:38] Speaker 00:
We do make that argument, Your Honor, although I don't think you need to conclude that, because I think the language of the pre... Under what circumstances have we held that a preamble is a limitation?

[00:15:49] Speaker 00:
Your Honor, you've held a preamble is a limitation when it is necessary to the claim, when it breathes life and meaning into the claims.

[00:15:58] Speaker 03:
What else?

[00:16:00] Speaker 03:
Haven't we held that when it provides antecedent basis for claim elements, it's always a limitation?

[00:16:04] Speaker 00:
That's correct, Your Honor.

[00:16:05] Speaker 00:
When it provides a definition...

[00:16:06] Speaker 00:
Well, I don't know that that's correct.

[00:16:08] Speaker 03:
When you say, I mean, Mr. Lindley, I know you are, you know well, notions of prosecution.

[00:16:16] Speaker 03:
When you say a communicator, you're introducing an element.

[00:16:20] Speaker 03:
When you say the communicators,

[00:16:22] Speaker 03:
you're using antecedent basis to refer back to something that came before.

[00:16:26] Speaker 03:
In the first element, it says designated one of the communicators.

[00:16:29] Speaker 03:
I've never seen a case in which that wouldn't be the reference to an earlier described element.

[00:16:35] Speaker 03:
That's element one.

[00:16:36] Speaker 03:
The only place that element appears is in the preamble.

[00:16:39] Speaker 03:
Ergo, it has to be a limitation, because every case we've ever had where there's antecedent basis is held, it's therefore a limitation.

[00:16:47] Speaker 03:
I know none of this is briefed, but part of my problem is,

[00:16:51] Speaker 03:
That's why this is a pain in the ass for us on 12b6.

[00:16:54] Speaker 03:
I mean, because all this kind of stuff probably would have gotten flushed out in some sort of claim construction hearing.

[00:17:00] Speaker 03:
And that jumped out at me instantly.

[00:17:01] Speaker 03:
I know it's not briefed.

[00:17:02] Speaker 03:
I'm putting you on the spot.

[00:17:05] Speaker 00:
Well, I understand.

[00:17:05] Speaker 00:
Let me give you an answer to that question and then maybe put it in some broader context.

[00:17:08] Speaker 00:
So the answer to the question is, yes, an antecedent basis is usually the basis for a finding that a preamble is limiting.

[00:17:15] Speaker 00:
But what this court said in IMS technology versus Haas automation,

[00:17:19] Speaker 00:
206F3 at 1422, 1434, 35, is that if the only thing that shows up in the preamble is just a descriptive name for the limitation that appears later, that is, if it's not defining the term, the mere fact that it is referred to later in the body of the claim is not sufficient.

[00:17:35] Speaker 00:
That said, let me be clear that I do not think this court needs to decide the question of whether the preamble is limiting to decide this case for several reasons.

[00:17:43] Speaker 00:
moving up one level of abstraction, as I just indicated, I don't think there's anything in the language of the preamble that requires this court to sort of find that all of the rest of the claim, the specification, and the purpose of the invention, which are to control and prevent communication collisions among multiple remotes, are out the window.

[00:18:00] Speaker 03:
But is that, again, it kind of goes to my other point, which is, why are we doing this on 12th and 6th?

[00:18:08] Speaker 00:
And the answer to that, Your Honor, I think, is ultimately the final point.

[00:18:12] Speaker 00:
The reason we're doing this on 12b6 is that they pled, not once, not twice, but three times, a complaint which is facially implausible, which everybody concedes can't possibly be right.

[00:18:23] Speaker 00:
That is that any number of remotes infringe the system.

[00:18:26] Speaker 00:
And they now concede, they do not attempt to argue, that any number other than one could possibly infringe the system.

[00:18:33] Speaker 00:
We are here on claim construction.

[00:18:34] Speaker 03:
What do you mean they don't argue?

[00:18:35] Speaker 03:
I think they say at least one.

[00:18:36] Speaker 03:
I didn't understand them to be giving up multiple remotes.

[00:18:40] Speaker 00:
Oh, I think that's exact.

[00:18:41] Speaker 00:
Well, not in the scope of the patent, but in the scope of infringement.

[00:18:45] Speaker 00:
Our system simply doesn't work in the way the patent describes it.

[00:18:48] Speaker 03:
What I understand them to say, at least at this stage, their allegation in their complaint is you have a one hub, one remote system.

[00:18:57] Speaker 03:
And since the claim says at least one,

[00:19:02] Speaker 03:
plausibly in private, right?

[00:19:04] Speaker 04:
At least one could also be more than one.

[00:19:07] Speaker 00:
Whether or not that's true as a matter of claim construction here, Your Honor, they do not and have not argued at any point in this case that any system with more than one remote infringes, until perhaps Learned Counsel's statement here.

[00:19:18] Speaker 03:
They haven't alleged that you have a system with more than one remote.

[00:19:22] Speaker 00:
That's correct.

[00:19:23] Speaker 00:
That infringes.

[00:19:24] Speaker 00:
That's correct.

[00:19:25] Speaker 00:
That's right.

[00:19:25] Speaker 00:
And in fact, they say expressly in their opening brief the system that Atlas accuses of infringement in this matter, however,

[00:19:31] Speaker 03:
No, I get it.

[00:19:32] Speaker 03:
But I don't understand that point.

[00:19:34] Speaker 03:
Where are you trying to go with that point?

[00:19:35] Speaker 00:
Well, so let me try to be clear.

[00:19:38] Speaker 00:
That's not what the complaint says.

[00:19:40] Speaker 00:
The complaint says anything with any number of remotes infringes.

[00:19:44] Speaker 00:
That complaint is facially implausible because they know, and they do not now concede, that any system of hours with more than one remote does not infringe.

[00:19:53] Speaker 02:
Is your point that none of the complaints ever suggested that a one hub, one remote

[00:19:59] Speaker 02:
That's correct, Your Honor.

[00:20:00] Speaker 02:
The system was the basis for their infringement.

[00:20:02] Speaker 02:
That's correct, Your Honor.

[00:20:02] Speaker 02:
It was always multiple remote systems.

[00:20:05] Speaker 00:
That's correct, Your Honor.

[00:20:07] Speaker 00:
One or more.

[00:20:07] Speaker 00:
And then in their response to this... Wait, wait, wait, wait, wait.

[00:20:10] Speaker 00:
Don't slide.

[00:20:11] Speaker 00:
One or more could be one.

[00:20:13] Speaker 00:
I'm totally confused.

[00:20:14] Speaker 03:
I just saw one shell and it went from here to here and then over to here.

[00:20:18] Speaker 00:
So let me try to be clear, Your Honor.

[00:20:20] Speaker 00:
The complaints all say any ComEd system with any number of remotes infringes.

[00:20:26] Speaker 00:
It is now undisputed that that is

[00:20:29] Speaker 00:
factually untrue, implausible, and they do not defend it, as to any system with more than one remote, which is essentially all of the systems.

[00:20:35] Speaker 00:
There's not even an allegation in the complaints that there's ever a one and only one remote system.

[00:20:40] Speaker 00:
The reason, what I'm trying to do, you're on?

[00:20:42] Speaker 02:
But it seems to me you're overreading that language, because I think if we agree that the claims include one or more, and when they're saying any number of remotes, what I was asking you, do the complaints only talk about multiple remotes?

[00:20:57] Speaker 02:
It seems like maybe that's the basic thrust, but it doesn't necessarily exclude one hub, one remote systems.

[00:21:04] Speaker 00:
Right.

[00:21:04] Speaker 00:
Your Honor, Judge Moore's question was, why are we doing this on claim construction?

[00:21:09] Speaker 00:
And the answer, I think, is we are doing this on claim construction because they changed their theory in response to the motion to dismiss the second amended complaint to allege this one remote system for the first time.

[00:21:21] Speaker 00:
That theory is not in the- One hub, one remote.

[00:21:24] Speaker 00:
Correct.

[00:21:25] Speaker 00:
Yes, yes.

[00:21:26] Speaker 00:
And because they changed that theory, they needed to present claim construction to this court as an argument that says, even though the patent is in fact focused on multiple remotes, we think it can and should extend to a one and only one remote system, one hub and one remote.

[00:21:40] Speaker 00:
Now, that, I think, ought to give this court some comfort.

[00:21:44] Speaker 00:
This is not a case, I think, where you have to conclude that we always have to do claim construction in order for a motion to dismiss.

[00:21:49] Speaker 00:
What the district court actually found in respect to claim construction was,

[00:21:54] Speaker 00:
Can their new changed theory save, I think, not that complaint, but allow them to amend it?

[00:21:59] Speaker 00:
So an appendix at 15.

[00:22:01] Speaker 04:
He already had allowed the amendment.

[00:22:03] Speaker 00:
He allowed multiple amendments.

[00:22:04] Speaker 00:
They've now come up with a new theory in response to the second amended complaint.

[00:22:09] Speaker 00:
And the question the district court is trying to figure out is, should we have to allow a new amendment to allow them to plead one and only one and proceed with that case?

[00:22:17] Speaker 00:
And what the district court found was that Atlas's action

[00:22:20] Speaker 00:
Thus depends on a claim construction that is wrong as a matter of law.

[00:22:22] Speaker 00:
Hence, any amendment would be futile.

[00:22:25] Speaker 03:
But he allowed the amendment.

[00:22:26] Speaker 03:
So I was completely confused by that.

[00:22:28] Speaker 03:
And my clerk says, don't forget, you want to ask them whether he allowed the Second Amendment or not because of the feudal language right here on my screen.

[00:22:34] Speaker 03:
But he went back to the docket, and it says allowed.

[00:22:37] Speaker 03:
I mean, in response to the particular request to amend, he allowed it.

[00:22:41] Speaker 03:
And it says it right in his opinion that he allowed it.

[00:22:44] Speaker 00:
He allowed it in response to the Second Amendment complaint.

[00:22:46] Speaker 04:
So you're saying that they would have had to have a third amendment?

[00:22:49] Speaker 00:
Well, that's what they're arguing for, right?

[00:22:52] Speaker 00:
So they argued effectively, right?

[00:22:55] Speaker 00:
So they argued.

[00:22:56] Speaker 00:
They pled one or multiple.

[00:22:59] Speaker 00:
They pled in the original complaint, in the first amended complaint, and in the second amended complaint.

[00:23:04] Speaker 00:
One or more.

[00:23:05] Speaker 00:
One or more, right?

[00:23:06] Speaker 00:
They then pivoted to a one and only one theory in the opposition to the motion to dismiss.

[00:23:11] Speaker 03:
They never went to a one and only one.

[00:23:14] Speaker 03:
So this is why I'm nervous about what your requesting needs to be done at Twombly Equal, because I think they said one or more consistently throughout.

[00:23:26] Speaker 03:
And why isn't that enough?

[00:23:29] Speaker 00:
So Your Honor, I think it's not enough in the specific factual context of this case, because the or more is not infringing.

[00:23:37] Speaker 00:
And everybody, I think, now agrees that that's true.

[00:23:39] Speaker 00:
So imagine that they had instead pled

[00:23:41] Speaker 00:
any device with a computer chip infringes.

[00:23:44] Speaker 03:
That complaint would be implausible even though some tiny percentage of computer chip devices are smart meters that actually might work in the way their patent system... Does that mean you're suggesting you weren't on notice as to specifically what elements, I mean specifically not what elements, specifically what devices they were accusing of infringement?

[00:24:02] Speaker 03:
See, any device with a computer chip would leave me, as an infringer, bewildered as to which of my devices they're accusing of infringement.

[00:24:09] Speaker 03:
But I feel like here the complaint was very specific about what devices they were accusing of infringement.

[00:24:13] Speaker 00:
Well, it was.

[00:24:14] Speaker 00:
It was all smart meters with any number of remote connections.

[00:24:17] Speaker 00:
And then they abandoned that theory.

[00:24:19] Speaker 00:
They changed that theory in their response to the motion to dismiss to say, no, only systems where there's only one remote in the group.

[00:24:26] Speaker 00:
That's a very different group.

[00:24:27] Speaker 00:
It might not exist, frankly.

[00:24:28] Speaker 00:
There is no actual.

[00:24:29] Speaker 02:
Well, that's what I wanted to ask you.

[00:24:30] Speaker 02:
And I know it's not in the record.

[00:24:32] Speaker 02:
You may not know it.

[00:24:33] Speaker 02:
And setting aside what your friend said just today at argument, are you aware of any systems where ComEd would have one hub and one remote?

[00:24:43] Speaker 00:
We are not aware of any such system.

[00:24:45] Speaker 00:
I would be surprised if it existed, except by sort of sheer accident, because the whole point of the communications network is precisely to communicate a hub.

[00:24:53] Speaker 00:
Reasoning of a hub is that it communicates with multiple remotes.

[00:24:56] Speaker 00:
In any event, they certainly haven't alleged that any such systems exist.

[00:25:00] Speaker 00:
I would like to say just one note on attorney's fees, Your Honor.

[00:25:04] Speaker 02:
Can I just cut you off and ask you a question on that?

[00:25:06] Speaker 02:
If we disagree with you on the one hub, that theory, but agree with you on the repeating, do we need to send the attorney's fee award back?

[00:25:19] Speaker 00:
I don't think so, Your Honor.

[00:25:20] Speaker 00:
So the attorney's fees award is based on a sort of 17-page set of findings

[00:25:24] Speaker 00:
It is true that some of those findings are based on the merits, but there's more than that.

[00:25:28] Speaker 04:
But the bulk of the findings were based on what the court said was a claim construction that just wasn't viable.

[00:25:38] Speaker 04:
And yet, if we think the claim construction is viable, wouldn't we have to send it back?

[00:25:44] Speaker 00:
I don't believe so, Your Honor, because there is sufficient basis here to affirm and support the district court's finding that there was bad behavior in this part.

[00:25:52] Speaker 04:
The district court's... Well, he didn't like the behavior on the part of you guys either.

[00:25:56] Speaker 00:
So the district court was concerned that we made arguments that he didn't find persuasive in the fees motion.

[00:26:02] Speaker 00:
He nonetheless, in the exercise of discretion, sort of found that there were plenty of good arguments.

[00:26:09] Speaker 00:
But he also made a bunch of specific findings about their behavior in this case.

[00:26:12] Speaker 00:
that the implausibility of the infringement theory was readily apparent, that they filed this action without- Yeah, but that's all tied up with the one or more remotes issue, isn't it?

[00:26:22] Speaker 02:
I mean, if we set apart that side of the case and if we only had you prevailing on the 12b6 on the repeating, I mean, I know it's an abuse of discretion standard, but that sounds kind of like a run-of-the-mill application of claim language to allegations and finding them insufficient that wouldn't meet

[00:26:41] Speaker 02:
an exceptional circumstances.

[00:26:43] Speaker 00:
I think if that were the only fact present in the case, Your Honor, that's right.

[00:26:46] Speaker 00:
But I think what we have is a procedural history in which they file a complaint that they know is implausible.

[00:26:52] Speaker 00:
They make us show up to defend it, and they don't even show up to oral argument.

[00:26:55] Speaker 00:
They file an amended complaint when he allows them to amend that is substantively identical, make us file a second motion to dismiss, and then pull the complaint at that point.

[00:27:04] Speaker 00:
They file a third complaint that has the same deficiencies of the first,

[00:27:07] Speaker 00:
And then when we file the third motion to dismiss, they pivot and change their argument.

[00:27:13] Speaker 00:
The district court specifically found that any claim that they didn't, quote, engages in revisionist history and, quote, involves a flat misrepresentation, unquote.

[00:27:21] Speaker 00:
That's A32 and A33.

[00:27:22] Speaker 04:
I don't really even understand how we got to repeating cycles.

[00:27:28] Speaker 04:
I mean, I looked at all the motions to dismiss below, and they were brief, shockingly brief.

[00:27:33] Speaker 04:
But they relied on this claim construction theory, which we may or may not agree with.

[00:27:38] Speaker 04:
And they relied on a powering down limitation.

[00:27:42] Speaker 04:
And all of a sudden, here we are with a repeating cycle in the court's opinion.

[00:27:46] Speaker 04:
Where did that come from?

[00:27:47] Speaker 00:
Well, I think the repeating cycle is there, Your Honor, because it is the one and only element that distinguishes this claim from all the claims that have previously been held invalid.

[00:27:57] Speaker 00:
And because in the course of defending that in the Patent Office,

[00:28:00] Speaker 00:
What Atlas said was, that claim element requires that information transmitted from the hub to the remotes be sufficient to prevent the collision of transmissions from different remotes competing for communication opportunities with the hub.

[00:28:14] Speaker 00:
So they have, I think, consistent with the language of the patent, regularly taken the position that this is, in fact, something that requires that these things allocate time within predetermined intervals between individual remote communication

[00:28:30] Speaker 00:
individual hub-to-remote communication and group hub-to-remote communication.

[00:28:34] Speaker 00:
That makes no sense in a theory where there's one and only one.

[00:28:37] Speaker 03:
Now, but let me ask you something about how, don't worry about your time, please.

[00:28:41] Speaker 03:
Let me ask you something about how that affects the attorney's fee motion.

[00:28:46] Speaker 03:
So I think you have a strong case on the repeating cycle element.

[00:28:50] Speaker 03:
But I read through all of the briefs you filed, all three of the motions dismissed below, and it was never mentioned.

[00:28:56] Speaker 03:
Never, not once.

[00:28:57] Speaker 03:
The district court seems to, did it come up at the hearing?

[00:28:59] Speaker 03:
I mean, how did the district court get this into the opinion?

[00:29:02] Speaker 03:
How did it end up there?

[00:29:04] Speaker 03:
And the reason that I'm bothered by it is he based, I'm looking on appendix at page 30, part of his decision on attorney's fees on this point.

[00:29:13] Speaker 03:
And what bothers me, he bases it on the two points, right?

[00:29:15] Speaker 03:
The two legal points.

[00:29:16] Speaker 03:
The first is the one, the at least one, each remote problem.

[00:29:20] Speaker 03:
But he also mentions the repeating cycle element.

[00:29:23] Speaker 03:
Why should they have to pay attorney's fees?

[00:29:26] Speaker 03:
for failing to comply with the repeating cycle element where you never made a motion to dismiss on that basis.

[00:29:32] Speaker 03:
So they couldn't have saved you the fees of filing all your papers, because none of them pertain to that issue.

[00:29:38] Speaker 03:
And the district court seems to have come up with it entirely on its own.

[00:29:41] Speaker 03:
And a blind squirrel finds it out once in a while, so I don't blame them.

[00:29:44] Speaker 03:
I think it's great.

[00:29:45] Speaker 03:
But why would they have to pay your fees if that's part of the reason he sees

[00:29:51] Speaker 03:
the problem.

[00:29:52] Speaker 03:
Do you understand?

[00:29:53] Speaker 00:
Yeah, I do, Your Honor.

[00:29:53] Speaker 00:
And I think the answer is, again, if the substantive merits were the only basis here, I think that would be a problem.

[00:30:01] Speaker 00:
But the behavior in this case by Atlas is itself independently sufficient under this court's case law to support an award of fees.

[00:30:09] Speaker 00:
The repeatedly moving target, as this court referred to in OPLERS versus Vizio, and I will note that the target moved again here at oral argument as they offered yet another new claim construction,

[00:30:19] Speaker 04:
The fact that they showed up made us put us to the work of filing motions and then didn't show up to defend He could have just granted the motion with prejudice the first time they didn't show up I mean that would have saved a lot of people a lot of effort But why didn't he do that?

[00:30:35] Speaker 04:
I mean he could have sanctioned them all along the way and to sort of keep them Stringing along and then say okay now I'm gonna sanction them at the end of the day doesn't seem to make a lot of sense

[00:30:46] Speaker 00:
Well, I understand that you could have done that, Your Honor, although then probably they would have been here complaining that they hadn't gotten the normal process the Seventh Circuit law requires, which is an opportunity to amend.

[00:30:55] Speaker 00:
And I think it might have been distinguishable on the grounds they didn't bother to show up to defend it.

[00:31:00] Speaker 00:
But I think the district court's conclusion to bend over backwards to give them extra opportunities to try to articulate a theory shouldn't be held as a reason why the fact that they still couldn't do it, that they tried again and again and still haven't come up with a theory that works, shouldn't be found, I think, as a reason to avoid award fees.

[00:31:19] Speaker 04:
At the end of the day, you're saying, back to the merits for a second, you're saying that because they argued

[00:31:28] Speaker 04:
to the PTO that the repeating cycle limitation operates because of the multiple remotes, that what the court was ultimately saying is looking at what they said to the PTO and comparing that to their argument is that they don't need multiple remotes.

[00:31:47] Speaker 04:
They said you can't do both.

[00:31:48] Speaker 04:
Is that what the district court was saying?

[00:31:50] Speaker 00:
I don't know what I would say is that you can't do both.

[00:31:52] Speaker 00:
It's that this element, I think, and frankly, the rest of the claim are both.

[00:31:57] Speaker 04:
Well, you said you can't practice the repeating cycle limitation under a one-pub-one remote.

[00:32:03] Speaker 00:
Yes.

[00:32:03] Speaker 00:
OK.

[00:32:04] Speaker 00:
Yes, that's correct.

[00:32:06] Speaker 00:
That's right, Your Honor.

[00:32:07] Speaker 04:
And I think also, frankly, it's not that from the PTO.

[00:32:10] Speaker 03:
I don't think

[00:32:28] Speaker 03:
often that we see one that comes up with an entirely distinct technical theory on their own that wasn't briefed and argued by the party.

[00:32:36] Speaker 03:
That's why we were kind of curious.

[00:32:37] Speaker 03:
We don't have the transcripts.

[00:32:38] Speaker 03:
Did it come up in the hearing?

[00:32:39] Speaker 03:
Did you suddenly make this new argument in the hearing or something?

[00:32:42] Speaker 03:
And he's like, ah, yes.

[00:32:43] Speaker 03:
I love it.

[00:32:44] Speaker 03:
Where did it come from?

[00:32:45] Speaker 00:
I believe it was, in fact, discussed in the hearing, Your Honor.

[00:32:48] Speaker 00:
But I guess I will say it is not as entirely different an argument as that statement makes it seem, right?

[00:32:55] Speaker 00:
It is part and parcel of the point of the invention, which is to actually allocate communication with multiple remotes to prevent a collision.

[00:33:04] Speaker 00:
And the way in which it does that is by specifying predetermined intervals within each inbound and outbound communication.

[00:33:11] Speaker 03:
You clearly and undisputedly referred to the frame limitation and the power limitation throughout your dismissal papers.

[00:33:19] Speaker 03:
And the district court even says that, by the way, in this opinion.

[00:33:21] Speaker 03:
You argued the frame limitation and the power limitation.

[00:33:24] Speaker 03:
The repeating cycle limitation is a totally different limitation than the ones you identify as the frame limitation and the power limitation.

[00:33:31] Speaker 03:
That's what your motion to dismiss the second amended complaint was about, frame and power.

[00:33:36] Speaker 03:
Repeating cycle is unquestionably a different limitation.

[00:33:41] Speaker 00:
Do you identify them?

[00:33:43] Speaker 00:
Yeah, I agree with that, Your Honor.

[00:33:44] Speaker 00:
The district court certainly treats them differently.

[00:33:47] Speaker 00:
But they are all part of the

[00:33:50] Speaker 00:
set up for the invention, which is let's use a MAC protocol to allocate information among different remotes.

[00:33:58] Speaker 00:
How do we do it?

[00:33:59] Speaker 00:
In the patent, they do it by using predetermined intervals to identify the particular times at which individual remotes will send signals so they don't conflict.

[00:34:08] Speaker 00:
And it is undisputed that ComEdS meters just don't work that way.

[00:34:12] Speaker 00:
ComEdS meters work in precisely the old prior art way.

[00:34:14] Speaker 04:
But I didn't see anything in your motions to dismiss or in the transcript, because I did read the transcript, and there's nothing in there about repeating cycles.

[00:34:23] Speaker 04:
But I didn't see anything about even the predetermined interval.

[00:34:27] Speaker 04:
I mean, that's a great argument, I think, on your part, that they've got this problem and that our court has construed what that means.

[00:34:33] Speaker 04:
But it's just not in those motion papers.

[00:34:36] Speaker 00:
I agree with your argument.

[00:34:37] Speaker 00:
So if in fact the sort of court decision for fees hinges on that,

[00:34:47] Speaker 00:
then I think it is right that it's appropriate to have the district court look at the fees issue again in light of the fact that you affirm on only some but not all grounds.

[00:34:56] Speaker 00:
But I don't think that that's actually necessary in this case, precisely because I think the other grounds for fees are themselves independently sufficiently strong that even if none of the merits arguments had been made at all, they would have justified an award of fees.

[00:35:10] Speaker 03:
But he didn't conclude that.

[00:35:11] Speaker 03:
In fact, he concluded you were both bad actors.

[00:35:14] Speaker 00:
Well, he did, in fact, criticize ComEd for making arguments that he didn't find particularly persuasive.

[00:35:21] Speaker 00:
We disagree with that criticism.

[00:35:23] Speaker 00:
But nonetheless, he concluded that those arguments didn't, in fact, justify denying an award of fees.

[00:35:29] Speaker 00:
That's true for several reasons.

[00:35:30] Speaker 00:
First is all of those.

[00:35:31] Speaker 03:
With all the litigation conduct that you articulated, the no-shows, the repeated filings, the withdrawals without response,

[00:35:38] Speaker 03:
he doesn't suggest that that litigation conduct is his basis for his determination of exceptionality.

[00:35:46] Speaker 00:
He does not say, Your Honor, that it is the only basis.

[00:35:48] Speaker 00:
He certainly relies on it as a basis.

[00:35:50] Speaker 00:
Where does he rely on it as a basis?

[00:35:52] Speaker 00:
So the relevant provisions, I think, Your Honor, are in A30 through A32 in the record.

[00:35:59] Speaker 03:
I'm here.

[00:35:59] Speaker 03:
I'm at the right page.

[00:36:00] Speaker 03:
So tell me where he references their failure to show up and all of that.

[00:36:11] Speaker 00:
Well, so what he says is that there's no explanation for the conduct.

[00:36:16] Speaker 03:
ATLAS filed the FAC first and then... No, the only conduct he's referring to is the conduct in the prior paragraph, which is how, when it finally offered its paired communicator protocol theory.

[00:36:26] Speaker 03:
That's the conduct.

[00:36:27] Speaker 00:
Well, Your Honor, that's right.

[00:36:29] Speaker 03:
The conduct isn't not showing up and withdrawing and stuff like that.

[00:36:32] Speaker 00:
Oh, I disagree with that, Your Honor.

[00:36:34] Speaker 00:
I think what the court says here is Atlas filed the FAC, the First Amendment complaint, knowing the arguments ComEd would make for its dismissal.

[00:36:41] Speaker 00:
ComEd had already lodged them against the complaint, but without any intention of meeting those arguments.

[00:36:46] Speaker 00:
Instead, withdrawing the FAC and then addressing an SAC, even then in the SAC, Atlas did not proffer

[00:36:52] Speaker 00:
theory it's now actually arguing in the SAC, instead raising it for the first time and arguing why Exhibit B's account of how the network products allegedly infringed claim one did not, in fact, plead it out of court.

[00:37:03] Speaker 00:
We see no explanation for this conduct other than they filed this action without adequate investigation.

[00:37:08] Speaker 00:
He refers to the late appearance of the theory in particular.

[00:37:12] Speaker 00:
And Atlas continues to do so now, floating an attempted explanation for the first time and opposing the motion for fees, a new motion entirely.

[00:37:20] Speaker 03:
filing suit with such a poorly-thought-out conception of how the... You jumped over the repeating cycle part, but that's okay.

[00:37:25] Speaker 03:
I'll let you do it.

[00:37:26] Speaker 00:
Fair enough.

[00:37:27] Speaker 03:
The time's up, Mr. Lemley.

[00:37:29] Speaker 03:
If you have any closing thoughts, I think we understand.

[00:37:32] Speaker 03:
No, Your Honor.

[00:37:32] Speaker 03:
Thank you.

[00:37:32] Speaker 03:
Okay.

[00:37:32] Speaker 03:
Let's have a rebuttal.

[00:37:34] Speaker 03:
Why don't you give him his whole five minutes back?

[00:37:36] Speaker 03:
Mr. Lemley went substantially beyond that, so if you need even more time, I can allow for that.

[00:37:42] Speaker 01:
Thank you.

[00:37:43] Speaker 03:
If you think it's necessary.

[00:37:44] Speaker 01:
Here's where I'd like to start, is this notion that

[00:37:47] Speaker 01:
this single remote theory sort of came up very late in the game.

[00:37:53] Speaker 01:
It didn't.

[00:37:54] Speaker 01:
And I think it's important to keep in mind again the context here, which is we didn't go by the normal patent rules.

[00:37:59] Speaker 01:
We didn't go by a process where you have exchange of contentions and then you have claim construction and then you have dispositive motions or you have a trial.

[00:38:06] Speaker 01:
This whole thing evolved very ad hoc from

[00:38:10] Speaker 01:
Motion to dismiss, to arguments they made, to arguments we made in response, the things that came up that the district court just ruled on without even being briefed.

[00:38:20] Speaker 04:
That's your fault, though.

[00:38:21] Speaker 04:
It's not your fault for not showing up.

[00:38:23] Speaker 04:
Well, so let me point out what the- I mean, it's pretty amazing for a district court to give you three opportunities for hearings and ultimately not take advantage of it.

[00:38:32] Speaker 01:
I have no justification for why prior counsel didn't show up.

[00:38:36] Speaker 03:
I noticed the note too, but after the first complaint,

[00:38:40] Speaker 03:
and the motion was dismissed, you withdrew the first complaint, and then felt the second complaint was identical to the first complaint.

[00:38:46] Speaker 03:
How is that not just frivolous, unnecessary expansion of litigation?

[00:38:50] Speaker 01:
Well, let's not forget there was also the issue of an additional entity that was taken out of the first amended complaint to the second amended complaint.

[00:39:00] Speaker 01:
So maybe it was the original of the first, but I think it was from the first to the second.

[00:39:04] Speaker 01:
So at the end of the day, when you look at exhibit B in the second amended complaint,

[00:39:09] Speaker 01:
It clearly talks about a single remote.

[00:39:12] Speaker 01:
If you go to the third row across, it says the access point hub establishes a communication cycle.

[00:39:22] Speaker 01:
Yes.

[00:39:23] Speaker 01:
The access point hub establishes a communication cycle by transmitting a read request message or a power status check message to a smart meter and then in parens remote.

[00:39:33] Speaker 01:
The read request is set during one interval in the communication cycle.

[00:39:37] Speaker 01:
And thus, Smart Meter sends a read message or a power stance.

[00:39:41] Speaker 03:
So you think he erred to the extent that he didn't read the second amended complaint as containing this one-to-one argument within it?

[00:39:50] Speaker 01:
Yeah, I'm saying to the extent that this is going to turn on whether there's been an adequate pleading of that theory or when it evolved or the notion that it's just being raised now or was just being raised during the briefing.

[00:40:02] Speaker 01:
is belied by what is actually in the second amended complaint.

[00:40:05] Speaker 04:
Where in the second amended complaint does it address the repeating cycles?

[00:40:11] Speaker 01:
The repeating cycles issue?

[00:40:15] Speaker 01:
I don't know that I can really answer that question.

[00:40:17] Speaker 01:
The claim chart goes through all of the claim limitations.

[00:40:25] Speaker 01:
And really as to repeating cycle as council acknowledged, it's really part and parcel of the issue of whether it's a single remote or multiple remote.

[00:40:35] Speaker 01:
So if we're going to get to that issue, I think the proper resolution would be if you agree that the construction that forecloses a single remote is incorrect, then it all needs to get looked at again.

[00:40:49] Speaker 01:
It shouldn't be, we don't have a proper record.

[00:40:52] Speaker 01:
to deal with that issue, any additional things related to that, they're directly tied to the idea of there being one remote or multiple remotes.

[00:41:02] Speaker 01:
So the point I wanted to make was just that it is not at all accurate to say that this theory just came about late in the game.

[00:41:10] Speaker 01:
It was laid out in the claim chart, again, in a context in which

[00:41:15] Speaker 01:
isn't the typical, if it evolved in atypical ways, because this was not a typical process.

[00:41:22] Speaker 01:
I mean, the single remote issue really came to the front as a response to one of the arguments that had been made by ComEd.

[00:41:30] Speaker 01:
And that's how we got to where we got to.

[00:41:34] Speaker 01:
The last thing I just want to clarify on the fees issue is it wasn't just sort of random little litigation issues on ComEd side.

[00:41:43] Speaker 01:
And the court described it as something that was reported on a misrepresentation.

[00:41:48] Speaker 01:
So if what we're left with at the end of the day is just that counsel for the plaint didn't show up to hearings, which obviously you should have, that's not an issue for exceptional case.

[00:41:57] Speaker 01:
I mean, that's potentially other kinds of sanctions.

[00:41:59] Speaker 02:
What do you mean?

[00:42:00] Speaker 02:
I mean, if he had specifically said, this is exceptional because despite numerous opportunities to cure this case and give amendments, they were frivolous in repeating their claims exactly in their first amendment complaint.

[00:42:12] Speaker 02:
They didn't show up for hearings.

[00:42:13] Speaker 02:
I find that exceptional.

[00:42:14] Speaker 02:
I award fees.

[00:42:15] Speaker 02:
Now, I know he didn't do that.

[00:42:17] Speaker 02:
But how would we reverse that finding on an abuse of discretion standard apart from the merits?

[00:42:21] Speaker 01:
Well, you have one issue being just the actual way the litigation was conducted.

[00:42:27] Speaker 01:
And then you have what construction was put forth.

[00:42:31] Speaker 01:
Or was it an implausible construction?

[00:42:34] Speaker 01:
I know.

[00:42:34] Speaker 02:
That's what I'm asking you.

[00:42:35] Speaker 02:
Putting aside all the merits, if he had made those findings based

[00:42:39] Speaker 02:
and awarded fees based solely on the way the litigation was conducted, how could we possibly reverse that under an abuse of discretion standard?

[00:42:47] Speaker 01:
Because you have documented in the same opinion similar to that.

[00:42:52] Speaker 01:
No, no.

[00:42:52] Speaker 02:
I'm not talking about what he actually did.

[00:42:54] Speaker 02:
I understand that he did not make those specific findings in that way.

[00:42:59] Speaker 02:
But if he had, or if we read it that way, it's up in the air.

[00:43:03] Speaker 02:
But how would we reverse that under an abuse of discretion standard?

[00:43:07] Speaker 01:
Because an entity who's asking for fees based on conduct that the same judge finds to be similar to the conduct that is the award of fees would be an abuse of discretion.

[00:43:20] Speaker 03:
OK.

[00:43:20] Speaker 03:
I think your time's up.

[00:43:21] Speaker 03:
We have the case under submission.

[00:43:23] Speaker 03:
Thanks both counsel.

[00:43:25] Speaker 03:
Our last case.