[00:00:16] Speaker 01: Mr. Lender, please proceed. [00:00:18] Speaker 06: May it please the court, David Lender, for the appellants, including Dow AgroSciences or DAS. [00:00:23] Speaker 06: There are several issues raised in the briefing that we believe warrants vacater of the arbitration award, but I'm going to spend my limited time this morning focusing on three core issues. [00:00:33] Speaker 06: First is that because the reissue patent that is the basis for 97% of the award was not included in the terms of reference, the agreement that expressly delimits [00:00:44] Speaker 06: and defines the scope of the arbitration, the arbitrators exceeded the scope of their authority by providing any relief based on that patent. [00:00:53] Speaker 06: Second is that enforcement of the award violates US patent policy by extending Bayer's monopoly on the patent gene for 30 years in violation of the double patenting doctrine and awarding $138 million in damages for seven years past the expiration of the reissue patent. [00:01:10] Speaker 06: And third, that the award of $130 million [00:01:13] Speaker 06: in pre and post-judgment interest, manifestly disregards Indiana law and violates federal law on post-judgment interest. [00:01:21] Speaker 03: Of that interest, how much, I assume, not very much is due to the post-Judge Jackson judgment interest? [00:01:29] Speaker 06: 33 million so far has run on that, Your Honor. [00:01:31] Speaker 03: OK. [00:01:32] Speaker 06: So it's about 100 million of pre-judgment, 30 of the post-judgment. [00:01:35] Speaker 03: Just small, relatively speaking. [00:01:37] Speaker 06: I guess depending on your perspective, yeah. [00:01:40] Speaker 06: Let me start with the first issue, which is the terms of reference. [00:01:43] Speaker 06: The arbitrator's power to decide comes from the terms of reference. [00:01:47] Speaker 06: This is the agreement negotiated and signed by the parties that defines the scope of the arbitration. [00:01:54] Speaker 06: The court may vacate an award under Article 5.1c of the New York Convention when it is based on a matter not falling within the terms of submission to the arbitrators. [00:02:05] Speaker 06: And this is an issue that falls squarely within the province of the court to decide. [00:02:10] Speaker 06: As the restatement of US law of international commercial arbitration makes clear, the court has the authority to determine de novo whether a convention award deals with matters that were not submitted to arbitration. [00:02:25] Speaker 06: And if you look at appendix 1483 to 1487, you can see how specific the terms of reference actually are. [00:02:33] Speaker 06: And nowhere will you see any mention of the reissue pact. [00:02:37] Speaker 06: Bayer easily could have included the reissue [00:02:40] Speaker 06: in the terms of reference if it wanted it included in this arbitration. [00:02:44] Speaker 06: By the time the terms of reference were finalized in October of 2013, Bayer had already filed its reissue application and was telling the Patent Office that its 665 patent was invalid based on myriad. [00:02:58] Speaker 06: Yet they only included the 665 patent and then actually sought a preliminary injunction on this admittedly invalid patent. [00:03:06] Speaker 06: Bayer never told DAS or the tribunal [00:03:09] Speaker 06: that it was seeking a reissue, which prevented us from filing a protest in the reissue application. [00:03:15] Speaker 06: And Bayer also never told the Patent Office that it owned the expired Strauch patents or that it was taking the position in the arbitration that the asserted Lehman's patents also covered PAT. [00:03:26] Speaker 06: Only by omitting these critical facts could they get their reissue patent. [00:03:30] Speaker 06: And in fact, now that the Patent Office knows these facts based on Dow's re-exams, the PTO has entered final office actions rejecting [00:03:39] Speaker 06: the reissue patent on double patenting grounds. [00:03:42] Speaker 06: Now, although Article 5 of the convention does not require a showing of prejudice to vacate, DAS clearly was prejudiced by this late addition of the reissue patent into the arbitration. [00:03:53] Speaker 06: It's analogous to essentially adding a new patent right in the middle of a trial. [00:03:57] Speaker 05: It's narrower than the 665, right? [00:04:00] Speaker 06: It is narrower than the 665, yes. [00:04:02] Speaker 05: But it's essentially the same subject matter, just a narrower version. [00:04:06] Speaker 06: The main difference is the invalidity questions would be different. [00:04:09] Speaker 06: I get on the infringement it would be very similar, but on invalidity we were dealing with a 665 patent that clearly was invalid based on myriad, that's why they went to the patent office to seek their reissue. [00:04:21] Speaker 06: But the invalidity issues would be very different. [00:04:23] Speaker 06: There also is the issue Judge Chen that [00:04:25] Speaker 06: The reissue gets added to the arbitration in the middle of phase two. [00:04:29] Speaker 06: So we've already done a trial on phase one. [00:04:31] Speaker 06: We're now in the middle of phase two. [00:04:32] Speaker 01: But doesn't 23-4 of the agreement allow the arbiters to add new claims expressly? [00:04:38] Speaker 06: Yes, Judge Moore, the ICC Article 23 does say that the tribunal can. [00:04:46] Speaker 01: It's the rules of arbitration. [00:04:49] Speaker 06: Except that what happened here is the way it normally would work is you would then amend, you would move to amend the terms of reference. [00:04:55] Speaker 06: And then there would be a hearing when we would discuss about what would happen based on that. [00:04:58] Speaker 06: But here, there was no amendment. [00:05:01] Speaker 06: And in fact, Your Honor, the basis for the tribunal finding the reissue patent was not Article 23 at all. [00:05:09] Speaker 01: Would you argue this in your brief, this part about the new claims? [00:05:13] Speaker 06: Yes, Your Honor. [00:05:16] Speaker 06: The terms of reference is absolutely in both our opening briefs. [00:05:19] Speaker 01: No, the terms of reference, that's different. [00:05:22] Speaker 01: from your argument here that you're making about, I think it's like a footnote somewhere. [00:05:28] Speaker 01: Go ahead. [00:05:29] Speaker 06: Yeah, the Article 23 point that you raised, that was not the basis by which the tribunal actually added the reissue to the patent. [00:05:36] Speaker 06: They found, they concluded, instead of appendix 330, paragraph 350, that the infringement read was the same, so therefore they could add the same, that it wasn't a new claim. [00:05:46] Speaker 06: But as the court office knows, the reissue is a different claim. [00:05:49] Speaker 06: It has different invalidity implications. [00:05:52] Speaker 06: And the tribunal itself found that the reissue was different. [00:05:55] Speaker 06: But that's why they gave us intervening rights as it pertained to the reissue patent. [00:05:59] Speaker 06: So here, because the reissue patent, which anchors 97% of the award, should never have been included in this arbitration. [00:06:07] Speaker 05: I guess if you're right, then what would you have wanted? [00:06:10] Speaker 05: Would you have wanted [00:06:12] Speaker 05: a new arbitration get fired up on the reissue? [00:06:15] Speaker 06: Yeah, I mean, there would have then had to have either been a new arbitration involving the reissue, or at least there should have been a pause in this arbitration to allow us to have discovery, allow us to actually brief the issues. [00:06:26] Speaker 06: I mean, remember, the perspective here is the 665 is basically in the case for two years. [00:06:31] Speaker 06: And then there's a complete reversal. [00:06:32] Speaker 06: And within a matter of weeks, we now have to brief a completely new pact. [00:06:36] Speaker 06: So either they should have formally moved to amend the terms of reference, [00:06:39] Speaker 06: And then we could have talked about a new schedule, new discovery, given us a real opportunity, or it should have been arbitrated in a completely different arbitration. [00:06:48] Speaker 06: It's just because of the fact that the terms of reference is the contract that gives the arbitrators the authority to decide things, and the reissue wasn't included here. [00:06:57] Speaker 06: We didn't agree in this arbitration. [00:06:59] Speaker 05: But I'm just trying to understand your prejudice argument. [00:07:02] Speaker 05: I mean, what did you lose that you [00:07:06] Speaker 05: would have gotten back if there was a brand new arbitration installed for the reissue patent. [00:07:11] Speaker 06: Just to be clear, obviously, Article 5 doesn't require any prejudice. [00:07:15] Speaker 06: But with that said, we would have gotten discovery, which we had none of, on the reissue patent. [00:07:20] Speaker 06: And we would have had the opportunity to pursue different invalidity arguments. [00:07:25] Speaker 06: Because essentially, the 665, our position was just like Bayer. [00:07:29] Speaker 05: You had the obviousness type double patenting. [00:07:32] Speaker 05: Yes. [00:07:33] Speaker 05: So what else? [00:07:35] Speaker 06: Just plain 103 arguments, 102 arguments, anticipation, obviousness. [00:07:38] Speaker 06: None of that was raised below. [00:07:39] Speaker 06: Because the 665, we believe, was dead on arrival based on myriad. [00:07:43] Speaker 06: Because myriad came out before the terms of reference were finalized. [00:07:47] Speaker 06: Let me actually now turn, if I could, and talk about the double patenting issue. [00:07:50] Speaker 03: I may have missed something. [00:07:52] Speaker 03: So did you say to the tribunal, if you're going to add this, we need to be able to submit new invalidity contentions? [00:07:59] Speaker 06: What we did is we objected. [00:08:01] Speaker 06: to the reissue being added to the arbitration. [00:08:05] Speaker 06: We objected in all of our memorials. [00:08:08] Speaker 03: And then it wasn't actually explaining specifically that new, for example, 103 evidence and arguments were going to be needed. [00:08:19] Speaker 03: And the condition of any admitting of expansion of the proceeding would be that you would have to [00:08:27] Speaker 03: be allowed to do these additional things? [00:08:30] Speaker 06: We argued that the invalidity issues would be different. [00:08:32] Speaker 06: We argued due process. [00:08:34] Speaker 06: But we obviously didn't get into it in as much detail as you're suggesting now, Judge Toronto. [00:08:37] Speaker 03: Right, but if you're... I mean, there's obviously an efficiency interest if there's no prejudice of wrapping it into the same proceeding. [00:08:48] Speaker 03: And if you didn't explain the prejudice, then how could we fall under whatever standard of review the tribunal for saying, [00:08:55] Speaker 03: there's no reason not to do this. [00:08:57] Speaker 03: Again, two things. [00:08:58] Speaker 03: One is Article 5... Except delay, which is not really an interest except from one side of the proceeding. [00:09:06] Speaker 06: We raised when we objected that there was violations of due process and the timing was... But a violation of due process requires something concretely prejudicial. [00:09:15] Speaker 03: Right. [00:09:15] Speaker 03: Right. [00:09:15] Speaker 03: So where did you explain to the tribunal, here is what we haven't had a chance to do, and if you include the reissue [00:09:23] Speaker 03: we now need a chance to do. [00:09:25] Speaker 06: We raised that there would be different invalidity issues. [00:09:28] Speaker 06: But what happens here, the way this works is we have the objections. [00:09:32] Speaker 06: Then we get a guidance letter that says you should presume that the reissue will be included. [00:09:36] Speaker 06: But you don't actually get the actual decision that the reissue is going to be included until you get the award. [00:09:41] Speaker 06: That was one of the issues that's actually decided in the award that the reissue will now be included in the arbitration. [00:09:47] Speaker 06: And Article 5, as well, doesn't require prejudice at all. [00:09:50] Speaker 06: It basically looks at the contract, the terms of reference as written. [00:09:53] Speaker 06: But yes, we didn't get into a long exposition of all the different things. [00:09:56] Speaker 06: We objected. [00:09:58] Speaker 06: We said why we objected. [00:09:59] Speaker 06: And then we don't find out until the very end that the tribunal has actually made the decision that it will be included in the award. [00:10:06] Speaker 01: Can you point me to where you brought to their attention that you would have different validity issues? [00:10:12] Speaker 06: Yes. [00:10:15] Speaker 06: Your Honor, I believe it was raised [00:10:20] Speaker 06: Just give me one moment. [00:10:21] Speaker 01: You know what? [00:10:21] Speaker 01: Why don't you tell me on rebuttal and we'll have one of your folks find it for you. [00:10:26] Speaker 06: Let me now turn and talk about the public policy challenges to the enforcement of the award, which is a grounds for vacant or under Article 5 2B of the convention. [00:10:35] Speaker 06: There's no dispute in this case that the prohibition on double patenting is based on public policy. [00:10:41] Speaker 06: This court has repeatedly said so in cases like Adviv, Hubbell, and Gilead. [00:10:46] Speaker 06: The patent office said so in its final office actions, rejecting the reissue patent on double patent. [00:10:51] Speaker 06: Do we have some patent flaw that is not based on public policy? [00:10:56] Speaker 06: Well, I mean, it's a great question. [00:10:57] Speaker 06: I think the issue of double patenting is different, because it's anchored in the US Constitution. [00:11:02] Speaker 05: But 101, 102, 103, 112, all of those grounds of validity are each grounded in public policy concern, right? [00:11:12] Speaker 05: Yes. [00:11:12] Speaker 05: We don't want to give out more patents on the exact same thing. [00:11:16] Speaker 05: And so if an arbitration tribunal missupplies section 102 and finds the patent is actually valid, then there's the same situation as we have here, an improper extension of the life of a patent that never should have been granted in the first place. [00:11:35] Speaker 06: Right, but here for double patenting, it is different. [00:11:39] Speaker 06: I mean, in the sense of what you're basically doing is especially look at what happened here. [00:11:43] Speaker 01: Bayer essentially now gets a 30-year monopoly on Pat because of the double patent, and that's why... Yeah, but you could make the same argument with regard to any patent you thought was invalid, and then we'd have to review any of them because any patent that you were going to say was wrongly decided to be valid is going to be a patent that's not going to just block you, but potentially this decision could affect lots of other companies. [00:12:09] Speaker 01: They're going to continue to be able to enforce this. [00:12:11] Speaker 01: And therefore, your public policy argument would be very strong for any ground of validity if I were to accept that as sufficient. [00:12:19] Speaker 06: Yes, Judge Moore, but the reason why this court has said in Abbey and Hubble and Gilead that double patenting was different. [00:12:26] Speaker 06: Because it's confusing and difficult. [00:12:29] Speaker 06: Painful, right? [00:12:32] Speaker 01: He said it. [00:12:32] Speaker 01: Just saying it louder. [00:12:33] Speaker 06: Because unlike perhaps some of the other invalidity defenses that you are raising, which I appreciate, obviously, if anybody has an invalid patent, there are issues involved. [00:12:42] Speaker 06: The reason why this court has created the obvious double patenting doctrine is because it's actually anchored entirely in the limited times exception that's set forth in the US Constitution. [00:12:52] Speaker 06: This does set double patenting on a different level [00:12:55] Speaker 06: than other doctrines. [00:12:57] Speaker 03: The word invention would seem to have something to do with novelty, which would be anchored in the Constitution as well, or discoveries, or whatever the Constitutional word is, I forget. [00:13:07] Speaker 06: But the limited times exception, the essence of the limited times exception is the entire essence of the bargain of the Patent Act. [00:13:15] Speaker 03: And I think it is noteworthy to note that- So you think it's worse under the Constitution to [00:13:22] Speaker 03: extend a patent than it is to give one that inhibits competition from day one? [00:13:33] Speaker 03: It's worse to simply inhibit it from day, whatever, 17 years is 14 years. [00:13:38] Speaker 06: Well, particularly in the context of this case, I would say yes, because by the time that we were sued, the stroke patents had already expired. [00:13:46] Speaker 06: So they had already gotten [00:13:47] Speaker 03: their entire menopause. [00:13:49] Speaker 03: I call it Strauch. [00:13:51] Speaker 06: Some people call it Strauch. [00:13:53] Speaker 03: It's an issue of debate. [00:13:55] Speaker 03: Would those have been 102, 103 prior art? [00:13:58] Speaker 06: No, that's because of the anomaly, because the Lehman's patents were actually filed first, but issued second. [00:14:07] Speaker 06: So as you know, Strauch was not considered prior art. [00:14:10] Speaker 03: And the Lehman's and the Strauch originated in different companies, right? [00:14:14] Speaker 03: Hirst and PGS or something. [00:14:16] Speaker 03: And if they had remained in separate hands, then the public in general would have been subject to an exclusivity right stacked. [00:14:28] Speaker 03: Why is it worse if they come into a single hands, which at a minimum would reduce the double marginalization problem? [00:14:34] Speaker 06: Well, the issue here is, again, it's fundamentally that Bayer, because of what happened here, Bayer, by essentially putting these patents and owning them in two different subsidiaries. [00:14:43] Speaker 03: It didn't put it. [00:14:45] Speaker 03: Bayer NV, which is Hearst, right? [00:14:49] Speaker 06: No, no, the other one, it's PGS, right? [00:14:52] Speaker 03: There's Bayer CropScience AG, which is Hearst, and Bayer CropScience NV, which was PGS, or did I get that? [00:15:01] Speaker 03: Maybe I got it backwards. [00:15:02] Speaker 03: But they were originally separate companies, separate assignees. [00:15:07] Speaker 03: There could well have been a period, what is it, up to 2030? [00:15:10] Speaker 03: 2023. [00:15:11] Speaker 03: 2023. [00:15:13] Speaker 03: that the public was generally subject to an exclusivity right. [00:15:18] Speaker 03: Why is it self-evident that double patenting as a matter of public policy suddenly makes that impossible when the two monopoly rights are consolidated in one hands, which does as an economic matter, [00:15:34] Speaker 03: potentially have the benefit of reducing the double marginalization. [00:15:38] Speaker 06: Because here the effect of all this is that Bayer, by now owning both of these patents and wholly owned subsidiaries, is essentially getting a 30-year monopoly on the pack. [00:15:47] Speaker 03: So instead of two companies in succession having it, why is one worse than the other? [00:15:52] Speaker 06: Well, because in the context of this case, [00:15:57] Speaker 06: I mean, I hear your point, but fundamentally the whole point of double patenting is to say that any individual person, any individual company should not get this extended life, if you will, over an invention that they have, right? [00:16:09] Speaker 03: We had a license, we took a license from Bayer to this pool of patents, so we did have a license to both of these patents, but for this... But there isn't actually, if I remember right, there's no case that specifically addresses this sister company, separate origin situation [00:16:27] Speaker 03: the best you had was a statement in one of the 706 provisions of the MPEP, which is not law, and was not even addressing double patenting, but it was addressing how to apply 103. [00:16:41] Speaker 03: that's going to rise to the level of the kind of clear fundamental public policy that we would use to upset a international arbitration award. [00:16:50] Speaker 06: Well, the public policy here that we're trying to protect you in are the two public policies that underlie the double patent. [00:16:55] Speaker 03: But we would be actually making up an extension of existing doctrine for the purpose of reviewing an arbitration award? [00:17:04] Speaker 06: Well, Your Honor, I guess I'd say two things. [00:17:06] Speaker 06: One is, obviously in Hubble, this court said that [00:17:09] Speaker 06: any extension, the time-wise extension of the right to exclude no matter how it comes about. [00:17:14] Speaker 03: The phrase time-wise extension is not exactly self-defining. [00:17:17] Speaker 03: So we would be facing something that, according to the small size of the authorities you've invoked, would basically be a new pronouncement of a doctrine that is a [00:17:29] Speaker 03: Not basically, it is common law. [00:17:31] Speaker 06: Except, of course, going the other way, then, would encourage people to have an easy out to subvert the whole policy behind the Doha Patent Doctrine, because then what companies could just do is take over. [00:17:40] Speaker 03: But we wouldn't be ruling on whether there is such a proper version of double patenting. [00:17:49] Speaker 03: We would be saying it's certainly not. [00:17:50] Speaker 03: Whatever the answer to the question is, it's not established and clear enough. [00:17:55] Speaker 03: for it to be a ground that meets the extraordinarily high standard for judicial override of an arbitration? [00:18:02] Speaker 06: Well, Your Honor, ultimately the issue of the question for the court is whether the standard of public policies underlying the double patent doctrine rise to the level of the public policy exemption that would fall within the scope of the convention. [00:18:15] Speaker 03: as applied to these particular circumstances, which is not covered by any existing precedent. [00:18:23] Speaker 06: Basically, based on the facts as the arbitrage is found, you would have to decide whether or not, based on the facts as found, meaning the facts that there's no question that the Lehman's genus patent covers the exact same subject matter as the Strzok patent. [00:18:40] Speaker 06: There's no question that Bayer now gets a 30-year monopoly on Pat. [00:18:44] Speaker 06: The court then has to decide. [00:18:45] Speaker 01: Mr. Lender, you have used all your time, all your rebuttal time in three and a half additional minutes. [00:18:51] Speaker 01: So I'm going to need you to sit down. [00:18:52] Speaker 01: I'm going to give you some rebuttal time because we're probably going to have questions for you. [00:18:56] Speaker 01: But when you do sit down, not only am I hoping that your associate will provide you with a site to where you explain to the arbitrators below that the new claim issue would present new validity issues, but also where you argued that to us. [00:19:12] Speaker 01: Because we don't find that in your brief. [00:19:14] Speaker 01: We don't find any argument in your brief to us that we were prejudiced because this is a new claim, and we didn't have an opportunity, therefore, to bring our validity issues. [00:19:23] Speaker 01: So both of those, please. [00:19:25] Speaker 01: Mr. Gasper. [00:19:26] Speaker 01: So Mr. Gasper, he went over by a lot. [00:19:28] Speaker 01: So I'll give you some leeway if you need it. [00:19:30] Speaker 04: Thank you, Your Honor. [00:19:33] Speaker 04: May it please the court, Chris Gasper from Milbank, Tweed, Halley, and McCloy. [00:19:37] Speaker 04: I'll get to Judge Moore your question about where in the record there's an explanation of prejudice. [00:19:42] Speaker 04: There simply wasn't. [00:19:43] Speaker 04: What actually happened is they raised their objection. [00:19:46] Speaker 04: Their objection was fully briefed by both sides. [00:19:49] Speaker 04: It was decided under the Tribunal's authority, which Judge Moore, you noted, Section 23.4 of the ICC rules expressly permits the Tribunal to determine if a new claim has been injected into an arbitration. [00:20:01] Speaker 04: The Tribunal took on board all of the arguments from both sides. [00:20:05] Speaker 04: decided that this was not a new claim. [00:20:07] Speaker 01: And in fact, the express decision by the... And would my review of whether they got it right or wrong, whether this is a new claim, be subject to that same ridiculously high and deferential standard of review that applies to arbitration agreements, which basically means, unless the sky is falling, I don't mess with it? [00:20:25] Speaker 04: Of course it would. [00:20:26] Speaker 04: Of course it would, Your Honor. [00:20:28] Speaker 04: And we don't have to look any further than the New York Convention's expressly [00:20:32] Speaker 04: stated but extremely narrow examples of when you upset an international arbitration award. [00:20:37] Speaker 01: What is the precise, I think my sky is falling language might not be exactly right, so what is the precise language that is my review standard for these sorts of issues? [00:20:46] Speaker 04: Including on the scope of what's... Sure, 9 USC 207 articulates the standard, quote, the court shall confirm the award unless [00:20:58] Speaker 04: It finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the New York Convention. [00:21:07] Speaker 04: In turn, the New York Convention has seven expressly stated grounds. [00:21:16] Speaker 04: Now, thou doesn't go into which of these grounds in particular should operate on its behalf. [00:21:21] Speaker 04: It simply suggests that there's some amount of discretion that this court and that the district court have in applying these. [00:21:28] Speaker 04: Now, as to public policy, just as an example, you mentioned Sky is falling, Judge Moore. [00:21:34] Speaker 04: Dow cited not a single appellate case, not a single appellate case, where the public policy exception in the New York Convention was applied to overturn an international arbitration award. [00:21:47] Speaker 04: There's no examples of this. [00:21:49] Speaker 04: This is an extraordinarily unusual circumstance. [00:21:51] Speaker 03: I don't have the New York Convention provisions in front of me. [00:21:53] Speaker 03: Is one of them [00:21:55] Speaker 03: particularly apt on the question of the scope of the issues decided by the scope of reference, their argument that the reissue shouldn't have been there. [00:22:06] Speaker 03: What's the standard of review and how much deference do we give to the tribunal's discussion of Article 23.4, etc.? [00:22:16] Speaker 03: Or is that, I think maybe the other side suggested that that was de novo, but what's [00:22:23] Speaker 04: So this court sits to determine whether or not the New York Convention operated to allow the award to be vacated. [00:22:31] Speaker 04: And that's the de novo portion that Dallas is giving about. [00:22:34] Speaker 05: I guess there's one provision in the New York Convention that says the award deals with where it contains decisions on matters beyond the scope of the submission to arbitration. [00:22:45] Speaker 05: Does that ring a bell? [00:22:46] Speaker 04: It does. [00:22:46] Speaker 04: This is C. And this was the second half of my answer to Judge Toronto's question. [00:22:51] Speaker 04: You're quite right, Judge Shinn. [00:22:53] Speaker 04: What that so-called difference not contemplated, exception contemplates, is if, for example, the contract here is a commercial contract concerning rights under a particular business deal that involved transfer of genetics and some patent licensing. [00:23:09] Speaker 04: And instead, the tribunal decided that it was going to shift the real estate from one company to another, a completely [00:23:18] Speaker 04: unrelated issue was decided by the arbitrators. [00:23:21] Speaker 04: It had completely gone off the tracks, and it had no bearing at all on what the parties had agreed the tribunal was supposed to decide. [00:23:28] Speaker 01: OK, but this is an example, and I don't know. [00:23:30] Speaker 01: Maybe Judge Toronto got the answer to this question out of your example, but I haven't. [00:23:34] Speaker 01: And I still don't feel like it's an answer to my question either, which started from, what is the actual standard of review? [00:23:40] Speaker 01: And what Judge Toronto wanted in particular is, what is the standard of review they suggested de novo [00:23:46] Speaker 01: on whether something was properly a part of the arbitration or not, and therefore decidable by the arbiters. [00:23:54] Speaker 01: And so what is the standard? [00:23:55] Speaker 01: Because that's what they're asking us. [00:23:57] Speaker 01: That's what they're arguing. [00:23:58] Speaker 01: And so what I need to know from you is, what is my standard of reviewing the decision by the arbitrators that this is not a new claim and can be brought into this arbitration? [00:24:09] Speaker 04: OK. [00:24:10] Speaker 04: Two steps, first of all, Judge Moore. [00:24:15] Speaker 04: ability to review de novo, whether the operation of the New York Convention has been applied correctly by the district court. [00:24:23] Speaker 04: That level of de novo review, they state correctly. [00:24:26] Speaker 04: However, there is no de novo review by this court of what the arbitrators decided when it was given the authority by the parties to decide what was in the scope of the arbitration and also by authority of the ICC rules 23-4 [00:24:40] Speaker 04: which said that the tribunal gets to decide whether or not there is a new claim. [00:24:44] Speaker 01: Do I review that at all, or are you telling me I have no review authority of that at all? [00:24:47] Speaker 04: You don't have review authority over that. [00:24:49] Speaker 04: The tribunal decided, quote, the reissue does not constitute a new claim and may therefore be considered by the tribunal. [00:24:55] Speaker 04: This is in Appendix 3.5. [00:24:56] Speaker 04: They expressly took in that question. [00:24:59] Speaker 04: They expressly resolved it. [00:25:01] Speaker 04: There's nothing more to do with it. [00:25:02] Speaker 04: And on top of that, there was extensive litigation over all of the indolitic defenses that they said that they were deprived of an opportunity [00:25:10] Speaker 04: Right. [00:25:11] Speaker 04: They raised enablement, indefiniteness, prior art, on down the line, also the obviousness type double patenting issue. [00:25:18] Speaker 04: So it's not as though something was sprung on them. [00:25:21] Speaker 04: They had no control over whether or not it came in. [00:25:23] Speaker 04: They litigated all of that, and they lost it. [00:25:26] Speaker 04: Then they litigated all of the invalidity questions, and they lost them too. [00:25:30] Speaker 04: All of the work that the tribunal was told by the parties to do, the tribunal did. [00:25:34] Speaker 04: So observing that the tribunal was doing the issue. [00:25:36] Speaker 01: Yes, we have all 330 pages. [00:25:37] Speaker 04: And I read them last night. [00:25:39] Speaker 04: It took quite a while. [00:25:41] Speaker 04: But it is expensive on all of these points, not only procedural points. [00:25:44] Speaker 01: In the future, you might want to read them before argument a little sooner. [00:25:48] Speaker 05: I'm sure you reread them, right? [00:25:51] Speaker 05: I'm confused. [00:25:52] Speaker 05: You said unreviewable. [00:25:54] Speaker 05: So if the arbitration panel just theoretically went really off the rails and started awarding things to the winning party that [00:26:03] Speaker 05: really was completely unconnected to everything that was debated during the proceeding. [00:26:10] Speaker 05: You would tell us that that was just the panel's interpretation of the scope of the proceeding, and it's unreviewable by us? [00:26:18] Speaker 04: I really wouldn't, Judge Chen, because the part of the convention that you pointed me to is exactly the right one. [00:26:26] Speaker 05: So then that part, I think, we have to decide. [00:26:31] Speaker 05: There is something that's reviewable there. [00:26:33] Speaker 05: Is there not? [00:26:35] Speaker 04: Yes. [00:26:35] Speaker 04: So on the margins, there's a decision to be made. [00:26:39] Speaker 04: Are we talking about the real estate situation that I mentioned, or are we talking about something that is related to the contract, related to the agreement that the parties made when they entered the contract 25 years ago, that anything in connection with this contract would be arbitrated? [00:26:55] Speaker 04: And this is plainly part of what was contemplated by the parties. [00:26:59] Speaker 04: The Hertz patent rights that are defined in the contract. [00:27:02] Speaker 05: So what's our standard of review for that and reviewing that question? [00:27:07] Speaker 04: The standard of review, as you sit here reviewing the district court's decision to confirm, is de novo. [00:27:15] Speaker 04: The district court's ability to look and see if the tribunal had done its job is limited to determining whether or not the award deals with, and I'm now reading right out of the convention, a difference, meaning a dispute, [00:27:28] Speaker 04: not contemplated by the submission to arbitration. [00:27:31] Speaker 04: Here, the reissue was plainly contemplated by the submission to arbitration. [00:27:35] Speaker 04: The patent rights as defined in the contract that the parties agreed to that brought this into arbitration define the patent rights as certain numbers that had issued. [00:27:45] Speaker 05: I don't think I heard a standard review from you, but I would assume you would be urging us not to review de novo the arbitration panel's choice to include the reissue in the proceeding. [00:27:57] Speaker 05: Yes. [00:27:58] Speaker 05: So what would you be urging other than de novo? [00:28:02] Speaker 05: Because you're clearly not urging that. [00:28:03] Speaker 04: Right. [00:28:04] Speaker 04: I'm doing the best I can, and I'm not trying to evade the question. [00:28:07] Speaker 04: I'm trying to actually illuminate the way that it's structured under the Federal Arbitration Act and the New York Convention. [00:28:14] Speaker 04: The Federal Arbitration Act says, shall confirm unless. [00:28:18] Speaker 04: The New York Convention provides the limited exceptions. [00:28:21] Speaker 04: The courts that sit to determine whether vacatur or confirmance, confirmation of the award, [00:28:27] Speaker 04: They do that, I suppose, de novo, because the fact is that they're applying the statute in this treaty. [00:28:34] Speaker 04: And this court doesn't have any duty to grant the district court's decision on this any particular deference. [00:28:41] Speaker 03: Well, can I ask? [00:28:44] Speaker 03: I think I once knew something not about the New York Convention, but about the FAA and labor arbitration. [00:28:50] Speaker 03: And I think there are some Supreme Court cases [00:28:53] Speaker 03: that talk about when the question is whether the arbitrator decided an issue properly within the scope of what the agreement provided would be arbitrable. [00:29:05] Speaker 03: The courts review that, and I want you to finish the sentence saying under what standard of review. [00:29:12] Speaker 03: Is the scope determination part of what the arbitrator gets lots of discretion about or not? [00:29:20] Speaker 04: It absolutely is. [00:29:21] Speaker 04: You look to the party's agreement. [00:29:23] Speaker 03: Do you have in your head the kind of Supreme Court cases that are only dimly in my head at this moment? [00:29:29] Speaker 04: Sure. [00:29:31] Speaker 04: The scope. [00:29:32] Speaker 04: So we have Mitsubishi Motors saying that the efficacy of the arbitration process requires. [00:29:38] Speaker 00: What about Oxford v. Sutter? [00:29:40] Speaker 04: I'm sorry, Judge Moore? [00:29:41] Speaker 00: What about Oxford v. Sutter? [00:29:43] Speaker 04: It doesn't articulate a standard any different. [00:29:46] Speaker 04: So the Supreme Court has actually [00:29:50] Speaker 04: given plenty of examples of the minimal level of review that's available here. [00:29:57] Speaker 03: Specifically on the question of whether an issue was arbitrable, not on the question of the right answer to a question that was undisputedly arbitrable. [00:30:09] Speaker 04: Yes. [00:30:09] Speaker 04: The Oxford decision, interestingly enough, is what Dow cited to quite a bit. [00:30:17] Speaker 04: in the initial district court proceedings when it was arguing that all of these issues were supposed to go to arbitration. [00:30:22] Speaker 04: And the view there that Dow took is that not only anything in connection with this agreement, including the patent rights, the breach arguments, the termination arguments, everything had to go to arbitration. [00:30:31] Speaker 01: I tried to give you Oxford because I thought it helped you. [00:30:33] Speaker 01: I agree. [00:30:34] Speaker 04: This is my point, Judge Morris, that Oxford is exactly right. [00:30:39] Speaker 04: It does help us. [00:30:39] Speaker 04: And it's, in fact, what Dow argued should apply, which is that the tribunal gets to decide its own authority [00:30:45] Speaker 04: as long as it is connected with the issues that are in the agreement. [00:30:48] Speaker 01: I mean, here's the quote from Oxford that I thought really helped you. [00:30:50] Speaker 01: Because the parties bargain for the arbitrator's construction of their agreement, an arbitrary decision, even arguably construing or applying the contract, must stand regardless of the court's view. [00:31:00] Speaker 04: Exactly right. [00:31:01] Speaker 04: And that's, if not the exact language, very similar to the language that Dow raised with the district court. [00:31:06] Speaker 04: These are points that have been litigated for sure. [00:31:08] Speaker 04: So that's exactly the way to look at it. [00:31:10] Speaker 01: Will you move on if it's OK? [00:31:11] Speaker 01: If you have more questions, feel free. [00:31:12] Speaker 01: But will you move on to the interest question? [00:31:16] Speaker 04: To the interest question. [00:31:18] Speaker 04: Post-judgment interest. [00:31:19] Speaker 04: Post-judgment interest, sure. [00:31:22] Speaker 04: So they suggest that, first of all, somehow the post-judgment interest was not submitted to the tribunal. [00:31:29] Speaker 04: That's not sustainable. [00:31:32] Speaker 04: The contract not only says that the parties agreed to arbitrate any controversies or disputes, but when the terms of reference were signed, and by the way, I dispute the characterization by doubt, that the terms of reference [00:31:44] Speaker 04: are what determine the scope of the issues. [00:31:46] Speaker 04: That's actually not true. [00:31:47] Speaker 04: The agreement determines the scope of the issues. [00:31:50] Speaker 04: The agreement says all, excuse me, any controversies or disputes. [00:31:53] Speaker 04: On top of that, the terms of reference when signed said that the arbitrators must decide interests and costs, other relief as the tribunal may deem proper, how much interest on such monetary award is proper and on what basis. [00:32:08] Speaker 04: And then later, and this is the part that really brings forward the irony of this argument [00:32:14] Speaker 04: Later, when the arbitration arguments were coming forward after the terms of reference had been settled, the parties agreed that full compensation, which is what was required under French law, was an agreeable way to deal with compensation, whether it was going to be going to Dow or going to buyer. [00:32:32] Speaker 04: And that in support of that full compensation, you can achieve it by awarding interest, simple interest, at a rate between 6% and 10%. [00:32:42] Speaker 04: This is at Appendix 560. [00:32:44] Speaker 04: I mean, this is expressly given to the tribunal. [00:32:47] Speaker 04: The tribunal applied the interest rate that the parties agreed. [00:32:51] Speaker 04: 560 is where, I mean, I can read it into the record, but paragraph 1006 is dispositive on this issue. [00:32:59] Speaker 04: Interest was given to the arbitrators. [00:33:02] Speaker 04: This is a French law governed contract. [00:33:07] Speaker 04: French law required full compensation. [00:33:09] Speaker 04: It's actually, in this regard, no different from US law. [00:33:12] Speaker 04: And the arbitrators applied it. [00:33:14] Speaker 04: So what they came up with was a very simple statement that from the day of the award until full payment, 8% would apply. [00:33:23] Speaker 04: It's clear here that the tribunal intended post-judgment interest because it says until full payment. [00:33:28] Speaker 04: It also doesn't say just post-award interest, which is what the Tricon case did. [00:33:33] Speaker 04: It makes those facts different. [00:33:34] Speaker 04: But really, more importantly here, you've got an election by the parties that French law and therefore the full compensation requirement [00:33:43] Speaker 04: for remedies under French law applies. [00:33:46] Speaker 04: And that does, in fact, take into account interest, whether you call it post-award or post-reward. [00:33:51] Speaker 05: Sorry, can you help me understand the distinction between what happened here and what happened in Tricon? [00:33:56] Speaker 05: Quite a bit of it, sure. [00:33:59] Speaker 05: Yes, Tricon also had a post-award interest rate. [00:34:02] Speaker 02: Exactly. [00:34:03] Speaker 05: And then, obviously, the Fifth Circuit said, well, it didn't say enough [00:34:08] Speaker 05: to displace the strong default rule that once the award is confirmed in district court, then the federal rate kicks in post-judgment. [00:34:19] Speaker 05: And so the post-award rate was good for the time from the award to the confirmation by the district court, but then after the district court confirmed the award, then you go back to the federal rate because the award wasn't so crystal clear about [00:34:37] Speaker 05: specifically overriding the strong default expectation that the federal rate would apply post-judgment. [00:34:43] Speaker 04: I'm getting a red light, but if it loses the court, I'll continue. [00:34:48] Speaker 01: I'll let you know when to sit down. [00:34:50] Speaker 04: How about that? [00:34:51] Speaker 04: Sure. [00:34:51] Speaker 04: The Fifth Circuit and Tricon, first of all, that's not binding. [00:34:54] Speaker 04: So here we have no binding law that requires the express exception that the tribunal gave here to 1961. [00:35:05] Speaker 04: to be overridden. [00:35:06] Speaker 04: So the tribunal's work was, as I mentioned, by the terms of reference and the arbitration agreement, set to determine what the interest was. [00:35:14] Speaker 04: Tricon is actually worth a pretty close study, Judge Chen, because two interesting things came from that case. [00:35:18] Speaker 04: One is they said, you can submit to the arbitration panel the determination of post-judgment interest. [00:35:25] Speaker 04: You can override 1961. [00:35:26] Speaker 04: And in that case, they found that, in fact, the parties just like here had submitted and agreed due to the broad agreement language [00:35:35] Speaker 04: to submit post-judgment interest as an issue. [00:35:37] Speaker 04: So that part is exactly the same as our situation. [00:35:40] Speaker 04: What's different in Tricon, among other things, is that there was an express issue joined and raised with the arbitrators about whether post-judgment interest would apply, and also whether attorneys' fees would apply, to tack-ons to the usual compensatory damages model. [00:36:00] Speaker 04: And in fact, the tribunal there, as Tricon explained, the Tricon court explained, [00:36:04] Speaker 04: Tribunal didn't award post-judgment interest. [00:36:07] Speaker 04: It was asked to award it, and it didn't. [00:36:09] Speaker 04: So that's one distinction. [00:36:11] Speaker 04: Another distinction is that it said post-award until paid. [00:36:14] Speaker 04: Here, we don't have that. [00:36:15] Speaker 04: We aren't seeing anything from the tribunal to indicate that there was a limitation to simply post-award as opposed to the entire period until paid. [00:36:25] Speaker 04: In fact, it says 8% quote from the date of the award until full payment, until full payment. [00:36:32] Speaker 04: Triclone also does something that's very interesting and worth noting. [00:36:35] Speaker 05: I didn't follow what the distinction there is between one award saying post-award rate and then another award saying from the date of the award till fully paid. [00:36:47] Speaker 05: What's the difference between those two? [00:36:48] Speaker 04: Well, I think that the distinctions on these, I would call sort of technicalities, are not the way that this rises or falls. [00:36:58] Speaker 04: However, I'll note that if that is the analysis that the Fifth Circuit was engaged in, [00:37:03] Speaker 04: You can note that in the Tricon case, it said post award interest until paid. [00:37:08] Speaker 04: Ours does not say post award interest until paid. [00:37:11] Speaker 04: It just says 8% from the date of the award until paid. [00:37:14] Speaker 04: So there is a distinction in the language. [00:37:17] Speaker 04: But let's get deeper on it than that, Judge Chen, because what Tricon actually was looking at is the question of whether and under what circumstances 1961 can be overwritten. [00:37:28] Speaker 04: And Tricon goes through a pretty elaborate explanation of the fact that you can, by agreement, [00:37:33] Speaker 04: override 1961, you can do that directly, or you can do it by submitting to the tribunal the issue of interest. [00:37:41] Speaker 04: And that's exactly what happened here. [00:37:43] Speaker 03: The paragraph 1006 and the particular, what is it, subparagraph 24 of paragraph 1008, which are what address this, both use the language of post-award interest. [00:38:02] Speaker 03: Was there a recognition and therefore discussion of the fact that some post award interest would be prejudgment and some would be post judgment and a facing of that distinction or not? [00:38:20] Speaker 04: No. [00:38:20] Speaker 03: OK. [00:38:21] Speaker 04: No. [00:38:22] Speaker 04: Which I think is actually dispositive of the issue in our favor. [00:38:26] Speaker 04: If it's not carved out expressly, there's no reason to carve it out. [00:38:29] Speaker 04: And on this, Judge Chen, when we're talking about statutes or student standards of review, we also do have to overlap a very important standard of review on top of this decision that was made by the tribunal and decision by the district court judge. [00:38:42] Speaker 04: If we accept the notion that the judgment interest, post-judgment interest, is something that the district court can set under the statute, then it's refusal to do that under Rule 59E [00:38:56] Speaker 04: decision can only be overturned if there's an abuse of discretion. [00:39:01] Speaker 04: Here, there's no law that was overridden or the discretion abused by the district court by having not applied TRICON if it is determined that TRICON should have been applied to the dissatisfaction of buyer. [00:39:15] Speaker 04: So you've got this abuse of discretion standard on this issue, for sure, as to what the district court decided. [00:39:21] Speaker 04: And now I'm so that the judges may give. [00:39:23] Speaker 03: Can I? [00:39:23] Speaker 03: No, no. [00:39:24] Speaker 03: I'd like to ask you something. [00:39:25] Speaker 03: Sure. [00:39:26] Speaker 03: So the contract right here belonged to, is it Bayer or Bayer? [00:39:31] Speaker 04: Depends on which country you're in. [00:39:32] Speaker 03: Or aren't we in Germany when we're talking this? [00:39:35] Speaker 03: So Bayer Crop Science AG. [00:39:37] Speaker 03: The contract right belongs to it and the patent right belongs to NV. [00:39:41] Speaker 03: Is that right? [00:39:43] Speaker 04: The contract right. [00:39:46] Speaker 03: It was originally a Hearst contract, right? [00:39:51] Speaker 03: Which then became buyer AG, not buyer AG, buyer crop size AG. [00:39:56] Speaker 03: And the patent owner or co-owner is Envy, because that started out as somebody else. [00:40:04] Speaker 03: And although your patent infringement complaint in the Eastern District of Virginia names both parties, it's not clear to me what AG is doing there. [00:40:15] Speaker 03: You don't say anything in the complaint about what AG is doing there, even though [00:40:20] Speaker 03: I think you say in footnote 14 or something of your brief that Hearst had exclusive licensing rights to the Lehman's patents. [00:40:33] Speaker 03: So I'm trying to understand in this context whether the 300 and something million dollar contract award belongs to one of the buyers [00:40:44] Speaker 03: AY and the patent damages belongs to the other of the buyers or somehow everybody at some point started talking about them just as buyer as though it were a single company. [00:40:57] Speaker 04: Yeah, Dow tried to talk about them as a single company. [00:40:59] Speaker 04: Well, so did the tribunal. [00:41:02] Speaker 04: And in this regard, there wasn't a reason for distinction. [00:41:05] Speaker 04: I mean, there was no challenge to the way that the [00:41:07] Speaker 03: Well, the context in which I started thinking about it is an issue that was not raised this morning, but is an important part of the blue brief, which is the Broulat issue. [00:41:20] Speaker 03: Did you agree that the breach here involved conduct that was the practicing of the Lehman's patent? [00:41:30] Speaker 03: Because those claims on the Lehman's patent, the reissue in particular, seem [00:41:36] Speaker 03: Basically, if you use this pat gene, you're infringing the claim while that claim is alive. [00:41:45] Speaker 04: If I can address that, Your Honor, I think I can do it very quickly. [00:41:49] Speaker 04: Creating two products, the E3 product and the E3 IR product, was the contract breach. [00:41:56] Speaker 04: Creating those two products was the contract breach. [00:41:59] Speaker 04: Dow doesn't even dispute that that was the contract breach, and they don't even dispute that there was a contract breach. [00:42:05] Speaker 04: technical reasons to upset this award. [00:42:08] Speaker 04: But they did breach. [00:42:09] Speaker 04: They don't dispute it. [00:42:09] Speaker 04: And they did infringe. [00:42:10] Speaker 04: They don't dispute that. [00:42:11] Speaker 04: The contract issues, including the breach and the remedy for breach, was governed by French law. [00:42:19] Speaker 04: The tribunal applied French law when assigning the remedy for breach. [00:42:23] Speaker 04: And here's the most important part. [00:42:25] Speaker 04: No patent infringement damages at all, not a penny, were awarded for patent infringement for those two reasons. [00:42:32] Speaker 03: I'm not sure that's the most important thing of all. [00:42:35] Speaker 03: The conduct that constituted the breach here is conduct that would be an infringement during the life of this patent. [00:42:45] Speaker 03: So why is enforcing a contract to pay for conduct that is an infringement of the reissue patent until the end of the law, until 2023, enforcing a contract to pay for that for the next, for the seven years after, not a Brouillot problem? [00:43:03] Speaker 04: It's, it's, it's kind of much worse than patent infringement. [00:43:06] Speaker 04: First of all, it's not a Brouillot problem because Brouillot is very narrow and it says that if you have a patent license, you can't charge for the invention past the life of the patent. [00:43:18] Speaker 04: Here, there was no charge for the patent license. [00:43:22] Speaker 04: No. [00:43:23] Speaker 04: They got to infringe for free for those two products. [00:43:26] Speaker 04: So for those two products that we're looking at, E3 and E3 plus IR, [00:43:31] Speaker 04: That was the source of the breach. [00:43:32] Speaker 04: That was the reason for harm. [00:43:34] Speaker 04: And perhaps, if only US law had been elected by the parties and only patent law was what was being discussed, you could assign a remedy under patent law. [00:43:44] Speaker 04: No dispute about that, Judge Toronto. [00:43:46] Speaker 04: You're absolutely right. [00:43:47] Speaker 04: That's not what the parties agreed to. [00:43:49] Speaker 04: What the parties agreed to is under French law, when there was a contract breach, you would apply the remedies of French law. [00:43:55] Speaker 04: And the remedies of French law went through and looked at a very expected analysis, which said, [00:44:00] Speaker 04: How harmed was Bayer by virtue of now exceeding the license that we did? [00:44:08] Speaker 03: I don't remember. [00:44:09] Speaker 03: I know there was no discussion in the briefs, but was there discussion in the arbitration award of what the content of the agreement was over and above the patent rights? [00:44:23] Speaker 03: What other kinds of benefits were being given by [00:44:30] Speaker 03: buyer or host at the time, to Luberzoll in exchange for the counter promise. [00:44:37] Speaker 04: Sure. [00:44:37] Speaker 04: I mean, it didn't get a lot of mention in the arbitration. [00:44:41] Speaker 04: The one place in the record that I could point you to is Appendix 261. [00:44:44] Speaker 04: Dow's predecessor received the patent gene itself to the fosinate-resistant plants, licenses to the patents here that were deemed infringed, licenses to other patents, licenses to patents outside the United States. [00:45:00] Speaker 04: And at bottom, really what happened here is that Bayer gave the Pat gene and the genetics and material that was used by DAP to replicate all the genetics of the Pat gene into the super product that it has right now. [00:45:15] Speaker 04: And they've done that very, very successfully. [00:45:16] Speaker 04: They've got a multiple tens of billions of dollars of product there that is available to them. [00:45:21] Speaker 04: They haven't stopped using it. [00:45:23] Speaker 04: And now they suggest that on technicalities, [00:45:25] Speaker 04: We're entitled to not even the award for breach that the tribunal provides. [00:45:29] Speaker 01: Okay, Mr. Gasper, I think now is the time. [00:45:32] Speaker 04: Thank you for your patience. [00:45:35] Speaker 01: Yes, Mr. Lender, I'm going to give you like four minutes of rebuttal that will come close to evening it out. [00:45:42] Speaker 01: We'll see how it goes. [00:45:50] Speaker 06: Thank you, Hunter. [00:45:51] Speaker 06: First, to answer your question from before, [00:45:53] Speaker 06: In the briefing, if you look at our reply brief at page 27... Well, you know, reply brief? [00:46:01] Speaker 06: Well, this is where we raised the specific issue of the prejudice of not being able to... on the invalidity issue. [00:46:09] Speaker 03: Where did you raise it in front of the tribunal, which I think is maybe... I'm doing that next. [00:46:13] Speaker 06: That would be perfect. [00:46:14] Speaker 06: And now I appreciate the issue here, because the appendix only includes certain pages of the memorial submission. [00:46:23] Speaker 06: And so the appendix stopped at appendix 350. [00:46:26] Speaker 06: But the submission goes to appendix 3052. [00:46:30] Speaker 06: So we'll have to submit that to the court. [00:46:31] Speaker 06: But in appendix 3052, in that submission, we actually raised the issue. [00:46:36] Speaker 06: Most important, this is a new patent with different invalidity implications. [00:46:40] Speaker 06: So it was actually raised before the tribunal. [00:46:42] Speaker 06: So we'll have to submit this. [00:46:43] Speaker 06: And we apologize that the appendix stopped at page 350. [00:46:46] Speaker 06: It didn't continue under 3052. [00:46:51] Speaker 06: Second issue, terms of reference clearly delimits the scope of the arbitration. [00:46:55] Speaker 06: That's based on Article 23. [00:46:57] Speaker 06: And I know there's a lot of going around, but I don't think there's any question this is a de novo standard for you to review. [00:47:04] Speaker 06: And in fact, we raised this in our opening brief, and Bayer didn't dispute it in their opposition brief. [00:47:10] Speaker 03: Why is it de novo if under cases like Oxford, which Judge Moore quoted? [00:47:15] Speaker 03: And this is my general recollection, so you will know better than I at the moment. [00:47:20] Speaker 03: that the question of the scope of issues that are covered by an arbitration agreement is itself initially for the arbitrator then subject to something more deferential than de novo review. [00:47:33] Speaker 03: Why is this not like that? [00:47:35] Speaker 06: Remember, there's two contracts here, right? [00:47:37] Speaker 06: There's the agreement to arbitrate and then there's the negotiated terms of reference. [00:47:41] Speaker 06: So there's two completely different contracts. [00:47:43] Speaker 06: So the question of what issues go to arbitration or whether this is an arbitrable dispute, that's clearly within the scope of the arbitration clause. [00:47:50] Speaker 06: But then in international arbitration, you negotiate very specific terms of reference. [00:47:55] Speaker 06: And even in Oxford Health, the language says that if the arbitrator, this is a quote from Oxford Health, if the arbitrator acts outside the scope of his contractually authorized authority, issuing an award [00:48:08] Speaker 03: That just gets to the result of the conclusion that somebody got it wrong. [00:48:13] Speaker 03: The question is, how finally do we scrutinize whether the arbitrator got wrong the decision of scope? [00:48:20] Speaker 03: And I guess it feels a little strange to me to think that if the [00:48:24] Speaker 03: Initial arbitration agreement is subject to a fairly robust discretionary arbitrator's interpretation that once you get into the arbitration process itself, that the arbitrator's decisions become more subjected to judicial review, like the interpretation of an agreement [00:48:45] Speaker 03: once the arbitration, like the terms of reference. [00:48:48] Speaker 03: That seems upside down. [00:48:50] Speaker 06: The issue is, is this patent dispute arbitrable? [00:48:53] Speaker 06: That goes to the arbitrators. [00:48:54] Speaker 06: But in a convention award, the reason why you negotiate the terms of reference, why it's a big event, why it took almost a year to negotiate here, is because those are the specific issues that the parties are agreeing that the arbitrators get to decide. [00:49:07] Speaker 06: That is the terms of reference that undisputably does not include the reissue patent. [00:49:11] Speaker 06: and undisputedly was never amended. [00:49:14] Speaker 06: And as I said, we cited the restatement that makes it clear that this is a de novo issue for the court's jurisdiction to decide whether an issue is within the scope of arbitration. [00:49:23] Speaker 06: The restatement of international arbitration. [00:49:26] Speaker 06: That's the sort of the... The people in Philadelphia wrote a document, and that's binding authority on us? [00:49:33] Speaker 06: Well, it's not binding on you, but again, we raised that this was a de novo standard of review, not disputed by Bayer. [00:49:39] Speaker 06: I didn't even hear them dispute when they got up here. [00:49:41] Speaker 06: It wasn't disputed in their brief at all. [00:49:44] Speaker 06: I do want to just take one minute and talk about the Kimmel issue that you raised, if I could, because there is no question that the sole breach here was sub-licensing Pat, covered by a US patent. [00:49:54] Speaker 06: And that once that patent expired in 2023, Pat was free for anyone to use, and yet they awarded $130-plus million after the US patents expired. [00:50:03] Speaker 01: I'll give you a little extra time. [00:50:06] Speaker 01: I'd like you to touch upon the post-judgment interest question. [00:50:11] Speaker 06: Yes, thank you. [00:50:12] Speaker 01: I know why you think Tricon applies, and the distinction was not so distinct, let's just say. [00:50:21] Speaker 01: That's not Fourth Circuit law. [00:50:25] Speaker 01: We don't know exactly what the Fourth Circuit would say about this. [00:50:28] Speaker 01: And just to be clear, given the standard of deference that we're supposed to give to arbitration decisions, it's not like every circuit has addressed this question and all come out the same way, therefore we should assume the Fourth Circuit would too. [00:50:44] Speaker 01: Given the level of deference, even though Tricon clearly on all fours favors you, but given the level of deference that we owe [00:50:51] Speaker 01: How do we get there? [00:50:53] Speaker 06: Because this, Your Honor, this is not an arbitration issue. [00:50:54] Speaker 06: This is actually a review of what the district court did. [00:50:57] Speaker 06: We're not challenging the award of post-award interest, which is what the arbitrator said. [00:51:04] Speaker 06: Whether I agree with it or not, we're not disputing that, that the period of time between the issuance of the award and the judgment by the district court is- Don't we have to interpret and try to understand what the panel, the arbitration panel, intended when it said, [00:51:21] Speaker 05: you know, a post-award rate or a rate upon the award, date of the award until paid? [00:51:30] Speaker 05: We have to figure out what that means and what they intended and did they, in fact, intend to displace the federal rate. [00:51:38] Speaker 06: And that's why we, obviously, we cite cases like Tricon and Fidelity and Goldman, which was at least from the Fourth Circuit, where those courts have repeatedly said that that kind of language is, in fact, it's what the word's saying, Tricon. [00:51:52] Speaker 06: that that boilerplate does not demonstrate that the panel intended to circumvent the merger rule. [00:51:57] Speaker 06: It's exactly what they were doing in Tricon. [00:51:58] Speaker 06: They were interpreting what the arbitrator said. [00:52:01] Speaker 06: In fact, they said the action was the opposite. [00:52:03] Speaker 06: They said because it wasn't clear that that's what the arbitrators were doing, that you can't then assume that they intended to displace the statutory rate after the arbitration award is converted to a judgment by the district court. [00:52:15] Speaker 06: That's why we think Tricon is exactly on the square force. [00:52:19] Speaker 01: Okay. [00:52:20] Speaker 01: Thank you, Mr. Linder. [00:52:20] Speaker 01: I thank both counsel. [00:52:22] Speaker 01: The case is taken under submission.