[00:00:22] Speaker 04:
Next case is Phyllis Huster versus J2 Clog Services, Charles Bobo et al.

[00:00:32] Speaker 04:
2016-1639.

[00:00:34] Speaker 04:
We'll be ready when you are, Mr. Mann.

[00:00:51] Speaker 03:
Good morning, your honor, and may it please the court.

[00:00:53] Speaker 03:
I'm Philip Mann on behalf of the appellant, Phyllis Huster.

[00:00:56] Speaker 03:
The district court made two fundamental errors in the case below.

[00:00:59] Speaker 03:
First, the district court substituted itself as a finder of fact and basically determined, made the decision that no facts could support Ms.

[00:01:09] Speaker 03:
Huster's claim that she was defrauded by Charles Bobo.

[00:01:13] Speaker 03:
The second error that the court made was, I believe, in misinterpreting this case, this court's decisions in Cho and Larson, and concluded that Ms.

[00:01:23] Speaker 03:
Huster had no standing to bring a claim for correction of inventorship under section 256.

[00:01:29] Speaker 01:
Do you agree that in the complaint that the only injury that's alleged is the fact of ownership or the

[00:01:39] Speaker 01:
the alleged right to be listed as an inventor.

[00:01:42] Speaker 03:
Well, yes, Your Honor.

[00:01:43] Speaker 03:
Obviously, the words on the paper say what they say.

[00:01:45] Speaker 03:
And there's no direct, as far as I know, no direct allegation of reputational harm.

[00:01:51] Speaker 03:
But I think that follows from what the case has been all about.

[00:01:55] Speaker 01:
And with respect to what you proffered below, it was purely reputational harm, correct?

[00:02:05] Speaker 03:
We are making the allegation now that it is purely reputational harm.

[00:02:09] Speaker 03:
There may be, we have other claims for potential financial compensation to Ms.

[00:02:15] Speaker 03:
Huster, but that comes as a result of her oral contract with Mr. Bobo, which is basically a separate issue.

[00:02:20] Speaker 03:
On the standing issue, the correction of inventorship under Section 256, we are saying that reputational interests alone would support that.

[00:02:30] Speaker 01:
Are you asking us to basically reach the question in Cho, which we implied was a possible issue, but that we never had to reach?

[00:02:39] Speaker 01:
In other words, in Cho we said, it's possible that merely being an inventor on a patent is a valuable right and that that might be enough for standing, but we don't need to decide that question.

[00:02:53] Speaker 01:
And so you're asking us to decide that question?

[00:02:56] Speaker 03:
I believe, and I'm going from memory here, I can't represent this as pure fact, I believe this court in Shoup v. Seagate may have already addressed that question.

[00:03:07] Speaker 04:
Doesn't the court here decide that there wasn't an adequate showing of facts on the reputational aspect?

[00:03:18] Speaker 03:
I don't think the court said that.

[00:03:19] Speaker 03:
What the court said was that based, and I think was an misinterpretation of the Larson case, what the court said is that the facts here are closer to the facts in Larson than they are in Cho.

[00:03:34] Speaker 03:
And I think that that can be

[00:03:36] Speaker 03:
I can demonstrate that that's a misunderstanding on the part of the district court.

[00:03:41] Speaker 03:
There were several factual distinctions between Mr. Larson and Ms.

[00:03:46] Speaker 03:
Huster here.

[00:03:47] Speaker 03:
The principal one is in the Larson case, Mr. Larson was clearly listed as one of the inventors on the patent.

[00:03:55] Speaker 03:
Ms.

[00:03:55] Speaker 03:
Huster's complaint here is that she should be listed on the patent and isn't.

[00:04:00] Speaker 01:
And Larson never even pled 256, right?

[00:04:03] Speaker 03:
No.

[00:04:03] Speaker 03:
Well, he did sort of a reverse 256.

[00:04:06] Speaker 03:
What he was saying is, I want to use 256 to kick these other inventors off of my patent.

[00:04:12] Speaker 03:
It was sort of a reverse correction saying people on the patent shouldn't be there.

[00:04:17] Speaker 03:
Our position is in Mr. Bobo's patent, which doesn't name Ms.

[00:04:21] Speaker 03:
Huster.

[00:04:22] Speaker 03:
Ms.

[00:04:22] Speaker 03:
Huster says, I should be on it.

[00:04:24] Speaker 04:
District court here said, even if her reputational interest was sufficient,

[00:04:29] Speaker 03:
ms hosta has failed to plead any facts relating to a reputational interest uh... yes your honor that uh... as a again night of this was a case of came before came to me the the complaint says what it says i can't change what words are paper right but that can be corrected are appraising your performance we're judging the case and and the uh... decision of the district court and i would say your honor uh...

[00:04:58] Speaker 03:
The way to fix that, I think that can be fixed by a liberal correction of the pleadings.

[00:05:05] Speaker 04:
You mean you get two bites of the apple?

[00:05:07] Speaker 04:
I know apple isn't involved here, but is there two chances?

[00:05:12] Speaker 03:
I remember in my earlier years, it was a common proceeding in trials to make a routine motion to conform the pleadings to the evidence.

[00:05:20] Speaker 03:
Again, I think this may be putting formal for substance here.

[00:05:25] Speaker 03:
I would ask that...

[00:05:27] Speaker 03:
The correction of inventorship was done on a motion to dismiss, right?

[00:05:31] Speaker 03:
I believe that that was the, that was dismissed.

[00:05:35] Speaker 06:
Lots of things are dismissed.

[00:05:36] Speaker 06:
The question is on what motion?

[00:05:38] Speaker 06:
Wasn't this on a rule 12B motion?

[00:05:40] Speaker 01:
It was, your honor.

[00:05:42] Speaker 01:
So is it your position that the mere invocation of 256, the statement that she has the right to be an inventor, that that should be enough, at least at the pleading stage for purposes of standing?

[00:05:56] Speaker 03:
Yes.

[00:05:57] Speaker 03:
And if there's a question as to if the court or if one of the parties says, you make a motion for a more definite statement, you can say, we don't fully understand this.

[00:06:06] Speaker 03:
Can you flesh it out a little bit more than she could certainly come in and say... Why didn't she ask for an opportunity to amend?

[00:06:13] Speaker 01:
I mean, it seems to me that all she would have had to do under Schuch is put in a sentence saying, I'm still working in this field.

[00:06:20] Speaker 01:
That would have been pretty much the end of the inquiry, right?

[00:06:23] Speaker 03:
Again, Your Honor, you're asking me questions that I can't answer, not being there.

[00:06:27] Speaker 03:
In hindsight, that would make sense.

[00:06:29] Speaker 03:
Why she didn't do it, I can't answer as I stand here.

[00:06:32] Speaker 03:
But I agree that, and I think the court

[00:06:37] Speaker 03:
could have even invited that.

[00:06:39] Speaker 03:
I've seen cases where they've gone through iterations of fourth and fifth amendment.

[00:06:45] Speaker 01:
Some district judges are nicer than others, but that doesn't mean they have to do it.

[00:06:49] Speaker 03:
I agree, Your Honor, and again, I can't answer that question other than to simply say that I was hoping that you'd have another chance and maybe go back and try to answer some of these questions or put in the information that could be put in.

[00:07:03] Speaker 06:
Do I understand right that

[00:07:06] Speaker 06:
In the 11th circuit, a dismissal for lack of standing must, as a matter of law, be a dismissal without prejudice.

[00:07:14] Speaker 03:
I do not, I don't know the answer to your question.

[00:07:18] Speaker 06:
Which would give you another opportunity, would it not?

[00:07:21] Speaker 03:
It would.

[00:07:21] Speaker 03:
I don't know the answer.

[00:07:22] Speaker 03:
I hope that's the case.

[00:07:25] Speaker 01:
Well, that's certainly what you argued in your brief, right?

[00:07:27] Speaker 03:
I believe there was a, well, my question is that that is a case we cited in the brief.

[00:07:32] Speaker 03:
My question is, and what I can't answer, Jane, here is whether this was a dismissal without prejudice or with prejudice.

[00:07:40] Speaker 06:
I know that- Well, regardless of what it was, what it had to be, as I understand the 11th circuit law was a dismissal without prejudice.

[00:07:49] Speaker 06:
So whether that, if on that assumption we can either

[00:07:53] Speaker 06:
say that's what it was, or we can say we don't know what it was, but then it has to be modified, clarified.

[00:08:02] Speaker 03:
That would work too, I believe.

[00:08:05] Speaker 04:
What about the state law claims, statute of limitations?

[00:08:09] Speaker 03:
Okay, on the statute of limitations, I think... She knew early that she'd been left out.

[00:08:13] Speaker 04:
I'm sorry, Your Honor?

[00:08:14] Speaker 04:
She knew early that she'd been left out.

[00:08:17] Speaker 03:
I respectfully disagree with that.

[00:08:18] Speaker 03:
That is the central factual question that the statute of limitations, in fact, turns on.

[00:08:25] Speaker 03:
If we agreed that she knew early, we're all in agreement that four years was the statute of limitations.

[00:08:33] Speaker 03:
We're all in agreement when this case was filed in 2013.

[00:08:36] Speaker 03:
Those facts and numbers are not... And the first patent issued in 95?

[00:08:42] Speaker 03:
Yeah, it was filed in 95.

[00:08:43] Speaker 03:
I don't remember when it was issued.

[00:08:45] Speaker 03:
I think it was filed April of 95.

[00:08:47] Speaker 03:
I don't recall the issuance date.

[00:08:50] Speaker 03:
So it's very seriously disputed when she found out about the fact that the patent application was filed without her name on it.

[00:09:01] Speaker 03:
And that's what we keep focusing on.

[00:09:03] Speaker 03:
It's not a question of, was she aware that a patent application had been filed?

[00:09:07] Speaker 06:
97.

[00:09:08] Speaker 06:
So by 97, there's public, at least one public patent issuance.

[00:09:16] Speaker 06:
It's 16 years from then to the filing of this lawsuit, right?

[00:09:21] Speaker 03:
That's correct.

[00:09:22] Speaker 03:
But again, our position is that there was no inherent duty on her part to make a search for this patent.

[00:09:30] Speaker 03:
The overwhelming majority of people live their lives without it.

[00:09:33] Speaker 01:
But wait, she met with lawyers to discuss the application for a patent.

[00:09:39] Speaker 03:
Lawyers who have since claimed that they were not their lawyers.

[00:09:42] Speaker 03:
That's the significance of the motion to dismiss that law firm.

[00:09:44] Speaker 03:
That law firm has formally taken a position in court that she was not a client and

[00:09:51] Speaker 03:
elementary law, lawyers have no business discussing client matters with people who are not clients.

[00:09:58] Speaker 03:
So their position would have to be, if we accept what they say, they would not be in a position to share information about a pending secret patent with Ms.

[00:10:08] Speaker 03:
Huster.

[00:10:09] Speaker 03:
Now it's true that the patent would be issued along with the eight million other patents that are out there.

[00:10:15] Speaker 03:
Her position is she did not make any sort of search for that patent.

[00:10:20] Speaker 04:
She had no reason to, and she assumed... No reason to, except that she claims she was an inventor.

[00:10:28] Speaker 04:
She was apparently involved in some way and had a deal, and now she claims years later that she was left off.

[00:10:38] Speaker 04:
Under those circumstances, she really should have been expected to keep track of the filing of an invention that she claimed she was an inventor of.

[00:10:48] Speaker 03:
Well, this precisely illustrates my point, Your Honor.

[00:10:51] Speaker 03:
The question is whether that's reasonable.

[00:10:53] Speaker 03:
And that's why we're saying that this should be decided after a trial on the merits and should be decided by the jury rather than a district court or, at this point, by this court.

[00:11:04] Speaker 03:
There are factual questions here.

[00:11:06] Speaker 03:
I'm not saying that I can prove at this point that she was defrauded by Mr. Bobo.

[00:11:12] Speaker 03:
What I am saying is because there are questions of this nature and because it's

[00:11:17] Speaker 03:
Why did you do this?

[00:11:18] Speaker 03:
Why did you not do that?

[00:11:19] Speaker 03:
Is your explanation plausible?

[00:11:21] Speaker 03:
Do you believe this?

[00:11:22] Speaker 03:
Does that make sense?

[00:11:23] Speaker 03:
That is precisely why this is a type of question that should be presented to a jury and why the grant of summary judgment was, in our view, incorrect.

[00:11:33] Speaker 03:
We would ask that the court change that and send this back down.

[00:11:36] Speaker 03:
Let us develop the facts.

[00:11:38] Speaker 03:
Let us present this to the jury.

[00:11:41] Speaker 03:
Let the other side cross-examine Ms.

[00:11:43] Speaker 03:
Huster as much as they want.

[00:11:44] Speaker 03:
See what answers she comes up with.

[00:11:47] Speaker 03:
Let six or 12 people decide whether it makes sense.

[00:11:53] Speaker 03:
And I'll reserve the rest.

[00:11:54] Speaker 03:
Unless the court has any more questions, I'd like to reserve the rest of my time.

[00:11:57] Speaker 04:
We will do that for you.

[00:11:59] Speaker 03:
Thank you, Your Honor.

[00:12:00] Speaker 04:
Mr. Englund, I think you're representing the non-inventor defendants.

[00:12:10] Speaker 00:
That's correct, Your Honor.

[00:12:10] Speaker 00:
May it please the court.

[00:12:12] Speaker 00:
My name is Brian Englund.

[00:12:12] Speaker 00:
I'm from Sullivan and Cromwell and I'm on behalf of all of the non-inventor defendants.

[00:12:16] Speaker 00:
Asking this court to affirm the decision, the district court followed this court's most recent announcements on when you have standing in this sort of a context is a straightforward application of those decisions, and she came to the right decision.

[00:12:32] Speaker 01:
But in our decision in Shook, we pretty much said, as long as you invoke 256 and as long as you're working in the field,

[00:12:46] Speaker 01:
That should be enough, right?

[00:12:49] Speaker 00:
Well, actually, I respectfully disagree with that.

[00:12:51] Speaker 00:
I think Shook went a little further.

[00:12:53] Speaker 00:
The allegations in Shook are far more detailed than any of the allegations we have here.

[00:12:57] Speaker 00:
You had direct, concrete, particularized allegations that he had had reputational harm, that his prior employer had spread bad information about him in the marketplace, and significantly that he had an expert opinion that said his employment prospects had specifically been damaged as a result of the reputational harm that he had there.

[00:13:16] Speaker 00:
And in this court's non-precedential but follow-on decision, the most recent invocation of this in the PepsiCo case, this court said, not just be a concrete, particularized refutation of harm, but it has to be tied to economic consequences, which is the natural follow-on from Shook, which did happen.

[00:13:35] Speaker 01:
But we've never said that in a presidential opinion.

[00:13:37] Speaker 01:
That's right.

[00:13:37] Speaker 01:
And in fact, if you look at Cho, we limited

[00:13:41] Speaker 01:
the analysis to reputational injury.

[00:13:44] Speaker 00:
In Cho, that's right.

[00:13:45] Speaker 00:
But Shook was the case that answered that question that said you can have this reputational harm, but there were allegations of concrete economic consequences and actual invocation of the reputation.

[00:13:55] Speaker 01:
But we didn't rely on economic consequences in Cho.

[00:13:58] Speaker 01:
I mean, it's one thing to say that there was more

[00:14:00] Speaker 01:
there were more allegations of reputational harm, but there was never instructed, we say, that that reputational harm had to be directly tied to established economic consequences to just get passed a motion to dismiss.

[00:14:13] Speaker 00:
No, Your Honor, you're correct.

[00:14:15] Speaker 00:
That's where the PepsiCo case took that to the next step in a non-precedential decision.

[00:14:19] Speaker 00:
But at the same time, even if that were okay that you could have just this bare-bones allegation,

[00:14:26] Speaker 00:
which again I don't think is the proper reading of Schuch, but even in that context, if we go back to the third amended complaint here, this isn't the first, this was a third amended complaint, there are no allegations of reputational harm.

[00:14:37] Speaker 00:
The word reputational does not appear in the complaint anywhere.

[00:14:42] Speaker 00:
She alleges purely economic interests.

[00:14:44] Speaker 00:
The idea that they were relying on a reputational harm came up for the first time here on appeal.

[00:14:50] Speaker 00:
She had three amended complaints,

[00:14:54] Speaker 00:
She filed five opposition briefs to the motion to dismiss.

[00:14:57] Speaker 00:
And in none of those did she really rely on any of this reputational harm.

[00:15:00] Speaker 00:
And significantly, she never once asked for leave to amend.

[00:15:04] Speaker 00:
And that decision is reviewed under the 11th Circuit law.

[00:15:08] Speaker 00:
And under the 11th Circuit law, the court's decision whether to dismiss a case with prejudice or without is reviewed under an abuse of discretion.

[00:15:16] Speaker 00:
There's been no showing there.

[00:15:17] Speaker 01:
Except for the fact that 11th Circuit law is pretty clear that certain

[00:15:21] Speaker 01:
dismissals are on the merits and certain are not.

[00:15:24] Speaker 01:
And when the question is standing, it's not on the merits, so it can't be with prejudice.

[00:15:29] Speaker 00:
Well, I believe that if the court can make that determination after a factual attack on jurisdiction where the court does consider evidence and the plaintiff is given a full and complete opportunity to air those issues, there would be no reason if they don't even ask for leave to amend to do it again.

[00:15:45] Speaker 00:
So I believe that it was correct and within the court's discretion to do it as a dismissal with prejudice.

[00:15:50] Speaker 00:
and move forward with the summary judgment portion of the claim.

[00:15:54] Speaker 06:
Further, with respect to... Can I ask why the essentially conditional interest that she has in PA, whatever it's called, the PA company that she, I guess, once had ownership interest in, but that at least until she pays the

[00:16:18] Speaker 06:
$40,000 attorney's fees judgment in the state of Washington she doesn't have an interest in.

[00:16:24] Speaker 06:
But why is that kind of conditional economic interest in the company that owns whatever patent rights she is entitled to not sufficient for Article III purposes?

[00:16:42] Speaker 06:
The way an option might be.

[00:16:44] Speaker 00:
I think if you go back, well, first, it's not a conditional interest that the assigning order

[00:16:48] Speaker 00:
from the court says she has no interest.

[00:16:52] Speaker 06:
If I remember right, it says expressly, until such time as she pays the $39,000 in change.

[00:17:01] Speaker 06:
And then it goes back to her.

[00:17:03] Speaker 00:
The assignment is in the record at 787.

[00:17:05] Speaker 00:
Right.

[00:17:07] Speaker 06:
Maybe I'm misremembering.

[00:17:13] Speaker 00:
The order

[00:17:16] Speaker 00:
Well, the signing order says giving all interest direct and indirect, and this is at 788.

[00:17:22] Speaker 00:
The further order says that all the debtors are divested of any right, title, and interest whether direct or indirect in PA Technologies LLC, and said charging orders and assignments shall remain in effect until the judgment is satisfied.

[00:17:34] Speaker 06:
Until the judgment is satisfied.

[00:17:36] Speaker 06:
That's right.

[00:17:38] Speaker 06:
Right.

[00:17:38] Speaker 06:
So she does have an interest.

[00:17:40] Speaker 06:
It goes back to her when

[00:17:42] Speaker 06:
the judgment is satisfied, if it's ever satisfied.

[00:17:45] Speaker 06:
Right, so that's exactly what I meant by a conditional interest.

[00:17:48] Speaker 00:
So it would be fine if there was evidence that she's ever going to be able to satisfy this judgment, which is now considerably more with the interest and attorney's fees that are recoverable than the original $49,000.

[00:17:59] Speaker 00:
But just the chance that she might be able to do that puts us closer back to what Lujan counsels, that it can't be perhaps an interest.

[00:18:08] Speaker 00:
It has to be a concrete, particularized

[00:18:10] Speaker 00:
particularized economic interest.

[00:18:14] Speaker 00:
And Ms.

[00:18:15] Speaker 00:
Hooster has offered no evidence that she'll ever be able to get that company back or take any steps to do that.

[00:18:21] Speaker 00:
There's no evidence in this record to support that influence.

[00:18:23] Speaker 06:
So an option situation would be different because, at least in a case where the person with the option can say, well, yeah, I'm willing to exercise it.

[00:18:34] Speaker 00:
Yes, exactly.

[00:18:34] Speaker 00:
And here, there's just no evidence in the record to suggest that she'll ever be able to do that.

[00:18:38] Speaker 00:
And that's why, again, we just keep going back.

[00:18:40] Speaker 00:
to the allegations in the third amended complaint and the five different opposition breaches that she had that the appellant has had ample opportunity to look for and raise these issues and continually fail to do that.

[00:18:55] Speaker 00:
And the district court was not doing this on a blank slate because of the appellate's participation in other lawsuits.

[00:19:02] Speaker 00:
She's already actually been deposed twice and there was actually a robust factual record to show that she did not have either the reputational or the economic entry

[00:19:10] Speaker 00:
an interest necessary to establish standing.

[00:19:14] Speaker 01:
And under those facts and under that law... Record is pretty sad in terms of her success in dealing with lawyers, isn't it?

[00:19:21] Speaker 00:
Yes.

[00:19:22] Speaker 00:
It's been a frustrating experience for many of us for many years, Your Honor.

[00:19:25] Speaker 00:
And, I mean, for her too.

[00:19:29] Speaker 01:
Well, there's continually taking things on on a contingency and then once they don't get a settlement, they walk away.

[00:19:35] Speaker 01:
Or, you know, even the lawyers that she thought were representing her

[00:19:39] Speaker 01:
in the initial application and she thought they were her lawyers too because she was involved in all of those discussions and then they come and represent Mr. Bogo against her.

[00:19:49] Speaker 01:
I mean, you have a hard time thinking that the profession looks very good by the end of the day.

[00:19:57] Speaker 00:
Well, Your Honor, they didn't appeal the motion to disqualify, but this information is in the record and it's actually the district court weighed a lot of facts and found that she had no reasonable assumption that the original lawyers ever had a relationship with her.

[00:20:09] Speaker 00:
And her lawyer in Chicago, who did withdraw noisily, the record, I think it's in the record, and it shows that they had a pretty substantial disagreement over strategy.

[00:20:19] Speaker 00:
My time is up.

[00:20:20] Speaker 04:
Thank you, Mr. Wendland.

[00:20:21] Speaker 04:
We'll hear from Mr. Schoenfeller.

[00:20:24] Speaker 04:
Thank you.

[00:20:27] Speaker 04:
Schoenfeller or Schoenfeller?

[00:20:30] Speaker 04:
The latter.

[00:20:31] Speaker 04:
Schoenfeller, right.

[00:20:32] Speaker 02:
With an omelette.

[00:20:33] Speaker 02:
That's correct.

[00:20:34] Speaker 02:
He got lost somewhere along the line.

[00:20:37] Speaker 02:
Good morning, Your Honors.

[00:20:38] Speaker 02:
May it please the Court.

[00:20:40] Speaker 02:
My name is Peter Shayntaller.

[00:20:41] Speaker 02:
I represent Appellee Charles Bobo.

[00:20:44] Speaker 02:
The trial court in this case properly held on summary judgment the plaintiff's state law claims were barred by the four-year statute of limitations.

[00:20:54] Speaker 02:
I want to step back here.

[00:20:56] Speaker 02:
The appellant frames the issue incorrectly, I'll say.

[00:21:01] Speaker 02:
The appellant frames the issue in their statement of issues and in their brief.

[00:21:06] Speaker 02:
that the trial court erred in holding on summary judgment that plaintiff knew more than four years prior to filing her complaint that she had been defrauded.

[00:21:17] Speaker 02:
That is overly simplistic because it does not incorporate the elements in the Georgia tolling statute.

[00:21:24] Speaker 02:
The proper issue before the court on the state law claims is, is there evidence in the record on summary judgment showing an intentional act

[00:21:35] Speaker 02:
actual fraud involving moral turpitude by Charles Bobo?

[00:21:40] Speaker 06:
Can I ask what is fraud that doesn't involve moral turpitude?

[00:21:44] Speaker 06:
Well, in Georgia actually, and I'm speaking off the cuff here, they have actual fraud and they have not actual fraud.

[00:21:51] Speaker 02:
Actual fraud is an act, okay?

[00:21:54] Speaker 02:
And I'm not talking an act versus an omission.

[00:21:56] Speaker 02:
It is an action, an affirmative action, which is somehow, and I'm no jurist at this level, that is somehow different from the lesser

[00:22:06] Speaker 02:
which concealed the existence of a cause of action from plaintiff despite plaintiff's reasonable diligence to discover the cause of action such that the statute of limitations is told.

[00:22:22] Speaker 02:
In this case, it's told from 1996 until 2013.

[00:22:32] Speaker 02:
The reason that is is that's what the appellant is asking for.

[00:22:36] Speaker 02:
And the reason they're asking for that is because under Georgia law, the statute of limitations starts to accrue on the day you can file suit.

[00:22:45] Speaker 05:
And what day was that?

[00:22:48] Speaker 02:
Well, our position is, it's the date she knew there was a problem that she was not on the patent and believed she had a 50-50 deal to share the profits from any business.

[00:23:00] Speaker 05:
And when you say patent, you mean patent application?

[00:23:03] Speaker 05:
Patent application.

[00:23:04] Speaker 05:
Correct.

[00:23:10] Speaker 02:
So, going to the first issue of evidence in the record.

[00:23:14] Speaker 02:
This started out as a motion to dismiss after multiple briefing sessions.

[00:23:21] Speaker 02:
And the court understanding that there was a record out of Illinois where she was opposed at least once in that case and once in another case, there was plenty of factual record.

[00:23:30] Speaker 02:
The judge converted it properly from a Rule 12B to a Rule 56 motion and gave reasonable time for the parties to brief or submit additional evidence on the issues.

[00:23:43] Speaker 02:
And she teed them up.

[00:23:45] Speaker 02:
for the parties that this was on the statute of limitations.

[00:23:49] Speaker 02:
And the parties had every opportunity to submit evidence.

[00:23:53] Speaker 02:
And I asked the court to look at appellant's brief versus appellee's brief and look at the evidence cited, because there are lots of arguments made from Ms.

[00:24:04] Speaker 02:
Hooster's side.

[00:24:05] Speaker 02:
There's not a lot of evidence cited.

[00:24:09] Speaker 02:
The evidence that the judge relied upon in granting summary judgment

[00:24:15] Speaker 02:
Well, first of all, the judge found that there was no evidence submitted by plaintiff that there was any evidence that Charles Bobo actually had any intention to defraud.

[00:24:32] Speaker 02:
The only evidence in the record was silence for that long period of time.

[00:24:38] Speaker 02:
And what is silence in this case?

[00:24:39] Speaker 02:
Silence in this case, looking at it from Charles Bobo's perspective, is

[00:24:44] Speaker 02:
don't know that there's a problem because she's not an inventor.

[00:24:48] Speaker 02:
And that's why Georgia, to toll the statute requires an affirmative act.

[00:24:55] Speaker 02:
Silence in and of itself under the law in Georgia is not enough to toll.

[00:25:01] Speaker 02:
And I think this is a good example because if you don't know there's a problem, you're going to remain silent.

[00:25:12] Speaker 06:
Did the plaintiff here in the district court make any argument that there were different accrual periods for the different patents that she was left off of?

[00:25:25] Speaker 02:
I can only speak to my knowledge of the case.

[00:25:27] Speaker 02:
In my knowledge, I don't recall that argument being made.

[00:25:35] Speaker 01:
So the evidence that the district court had in front of it... The argument that you made was that each time that they licensed it without admitting that they didn't have all the proper inventors, that there was an additional act, right?

[00:25:51] Speaker 02:
Right.

[00:25:52] Speaker 02:
But an act directed at whom?

[00:25:54] Speaker 02:
Her testimony is she had no idea until 2010 that this application had even been filed.

[00:26:02] Speaker 02:
So every time they filed, assigned it, or filed another patent, they're making a representation to the USPTO, but Charles Bobo or whoever's filing them are not making an affirmative statement to Ms.

[00:26:17] Speaker 02:
Hooster.

[00:26:19] Speaker 02:
that, oh, by the way, we're now filing another patent and continuing our fraud upon you.

[00:26:24] Speaker 02:
There's no fraud in those actions directed towards the plaintiff.

[00:26:28] Speaker 02:
Those are actions taken, filed, and filed with USPTO.

[00:26:33] Speaker 02:
But she never had any knowledge of them, and they were not actions taken towards her.

[00:26:41] Speaker 06:
In order for any statute of limitations to start running, tell me if this is wrong.

[00:26:47] Speaker 06:
Essentially, the wrong needs to be completed.

[00:26:50] Speaker 06:
It doesn't start until whatever the last element of the wrong occurs.

[00:26:57] Speaker 02:
And to put it another way, Your Honor, that is correct.

[00:26:59] Speaker 02:
To put it another way, you have to be able to file suit.

[00:27:01] Speaker 06:
Right.

[00:27:02] Speaker 06:
So I guess two questions.

[00:27:06] Speaker 06:
One, I keep thinking about the application question, which has nothing to do with what Mr. Bobo did or did not say or mislead or anything.

[00:27:18] Speaker 06:
when the cause of action actually was one that she could have sued on.

[00:27:25] Speaker 06:
Why would that be the case for the filing of an application as opposed to the issuance of it?

[00:27:32] Speaker 06:
And if it's the filing of the application, why is that not a series of, I don't know how many patents are issued?

[00:27:38] Speaker 06:
Seven, I think.

[00:27:39] Speaker 06:
Seven or something.

[00:27:42] Speaker 06:
There must be seven applications even if they're related to each other in the usual family way.

[00:27:48] Speaker 06:
Why would those not have accrued separately?

[00:27:52] Speaker 02:
So if I understand the question, I may get it wrong.

[00:27:55] Speaker 02:
To answer the first question I believe you asked, I don't believe, Your Honor, that there is a difference, practically speaking, between an application and a patent filing, or the registration of a patent in this case.

[00:28:09] Speaker 02:
One naturally flows from the other.

[00:28:11] Speaker 02:
And the fact that she claims she should have been listed as a vendor on the application

[00:28:17] Speaker 02:
This isn't a continuing tort.

[00:28:19] Speaker 01:
What if we were to assume that the patent had to be issued before her claim would be ripe?

[00:28:25] Speaker 01:
What was the latest date of issuance within the statute of limitations?

[00:28:31] Speaker 01:
I don't know that.

[00:28:32] Speaker 01:
What about the latest application?

[00:28:33] Speaker 06:
I think 2011 is the last of the patents.

[00:28:37] Speaker 06:
I can't even correct you one way or the other.

[00:28:41] Speaker 06:
The 948 or 148.

[00:28:43] Speaker 01:
What about the last application?

[00:28:48] Speaker 02:
Each of these applications, if she was an inventor, she was an inventor on the initial patent, would have to have been an inventor on the initial patent.

[00:28:59] Speaker 01:
Right, well there was injury as to that, but wouldn't there be injury as to the last application as well?

[00:29:05] Speaker 02:
Well, the statute of limitations would, under any circumstances, have started, commenced to run upon the grant of that initial patent.

[00:29:13] Speaker 01:
On that patent?

[00:29:15] Speaker 01:
On the first patent, correct.

[00:29:16] Speaker 01:
Right, that's one injury.

[00:29:18] Speaker 01:
related to the fraud.

[00:29:19] Speaker 01:
If a different injury relates to the fraud and the injury doesn't occur until either the application is filed or the patent issued, what's the latest filing of the application?

[00:29:30] Speaker 02:
Your Honor, it would be our position that the statute of limitations would have to run at the latest.

[00:29:36] Speaker 02:
Just a year.

[00:29:37] Speaker 01:
Give me a year.

[00:29:38] Speaker 01:
When was the last of the applications filed?

[00:29:41] Speaker 06:
I'm looking at these.

[00:29:42] Speaker 06:
It looks like 2006.

[00:29:43] Speaker 04:
2006.

[00:29:45] Speaker 04:
Weren't they all part of the same series?

[00:29:47] Speaker 04:
That's correct.

[00:29:49] Speaker 04:
Thank you, counsel.

[00:29:51] Speaker 04:
Mr. Mann has some rebuttal time.

[00:29:56] Speaker 03:
Thank you, Your Honor.

[00:29:57] Speaker 03:
And Judge, I understand you represent her observations on Ms.

[00:30:01] Speaker 03:
Huster's experience with lawyers.

[00:30:03] Speaker 03:
I hope that we can fix that.

[00:30:06] Speaker 03:
But that really brings up, you know, the key essential here is this case has been

[00:30:13] Speaker 03:
hanging around for quite a while.

[00:30:14] Speaker 03:
We had a lot of paper flying back and forth.

[00:30:17] Speaker 03:
But the best way to resolve this, if we were simply to take this case, develop the evidence, present it to a jury, get a question one way or the other, Ms.

[00:30:24] Speaker 03:
Huster's had her day in court, and at the end of the day, it would probably save everyone's time, including ours.

[00:30:30] Speaker 04:
Court of Appeals cannot look at a case and say, gee, it wasn't handled that well below, and let's give them another chance.

[00:30:39] Speaker 04:
It's got to be an error of law.

[00:30:41] Speaker 04:
a clearly erroneous error of fact.

[00:30:44] Speaker 03:
Exactly, Your Honor, and the clearest error of law is the resolution of the facts contrary to Ms.

[00:30:49] Speaker 03:
Huster.

[00:30:50] Speaker 03:
Under the law, on summary judgment standard, facts are supposed to be reasonable, inferences are supposed to be in her favor, and genuine issues are to be resolved by a fact finder or jury, not by the district court, and with due respect, this court, or even me for that matter.

[00:31:06] Speaker 03:
So that's why we're asking if we can just get this thing back to the court.

[00:31:10] Speaker 03:
Turning on to the specifics here,

[00:31:13] Speaker 03:
The council may have misspoke.

[00:31:18] Speaker 03:
It's not clear that Ms.

[00:31:19] Speaker 03:
Huster learned early on that she was not listed as an inventor on the patent.

[00:31:24] Speaker 03:
All the evidence that has been developed so far may suggest that she was aware that there was a patent application filed in April of

[00:31:34] Speaker 03:
1995, these are basically some ray lines on some communications that came in that said patent application filed.

[00:31:42] Speaker 03:
None of those documents shows or even suggests that Ms.

[00:31:47] Speaker 03:
Huster was not an applicant on those patents.

[00:31:51] Speaker 03:
Remember in the fourth frame of mind, we've got a background

[00:31:54] Speaker 03:
She had no experience with patents, no experience with patent lawyers.

[00:31:57] Speaker 03:
She did not know that you have to read an application.

[00:31:59] Speaker 03:
She did not know that you have to sign off on a declaration.

[00:32:02] Speaker 03:
This was entirely new to her.

[00:32:04] Speaker 03:
What she did know was she met with Jeff Sutcliffe, the patent lawyer at Hopkins and Thomas, who was taking care of the matter.

[00:32:11] Speaker 03:
So that's what she knew.

[00:32:13] Speaker 03:
She assumed, to the extent there was a reference to an application, she assumed it was the application that she in fact initiated.

[00:32:20] Speaker 03:
Remember, the evidence shows that she was the one

[00:32:22] Speaker 03:
who came up with the idea of contacting lawyers and trying to get a patent in the first place.

[00:32:28] Speaker 03:
She reasonably assumed they were looking after her interests.

[00:32:32] Speaker 03:
She found out in the course of a deposition in 2010 when someone who was actually being sued on one of these patents correctly figured out that Ms.

[00:32:41] Speaker 03:
Huster may be in fact an inventor and that would call into question all sorts of questions about patents.

[00:32:46] Speaker 03:
When did she first meet with the lawyer?

[00:32:49] Speaker 03:
I believe she first met with the lawyer sometime in 93, 94.

[00:32:53] Speaker 03:
It's in the papers.

[00:32:56] Speaker 04:
She didn't find out until 2010?

[00:32:58] Speaker 03:
2010, yeah, exactly.

[00:33:01] Speaker 03:
What happened was, you're smiling around her, but what happened was she and Mrs. Robobo had a parting of the ways at that point, and she was no longer actively monitoring this.

[00:33:16] Speaker 03:
And furthermore, again,

[00:33:17] Speaker 03:
evidence of fraud on the part of Mr. Bobo.

[00:33:20] Speaker 03:
This is in the papers.

[00:33:22] Speaker 03:
The patent was assigned to NetOffice Solutions LLC.

[00:33:26] Speaker 03:
The company Ms.

[00:33:27] Speaker 03:
Huster was with was NetOffice Inc.

[00:33:29] Speaker 03:
So even there, there's some suggestive

[00:33:33] Speaker 03:
Creative Corporation forming the patent was not actually assigned and I don't believe has ever actually been owned by the company that Miss Huster was a part of.

[00:33:42] Speaker 03:
The patent was in fact originally owned by a separate corporation that Mr. Bobo set up

[00:33:49] Speaker 03:
Net Office Solutions LLC.

[00:33:51] Speaker 03:
So again, she would have no reason to know about these patent filings as a result of that.

[00:33:58] Speaker 03:
So put it all together.

[00:34:00] Speaker 03:
It smells funny.

[00:34:02] Speaker 03:
Our theory is that there's some fraud going on here.

[00:34:04] Speaker 03:
But again, we're asking that this can be submitted.

[00:34:08] Speaker 03:
The case can be developed, do all the discoveries, submit it to a jury, and find out what's what.

[00:34:13] Speaker 03:
Thank you, counsel.

[00:34:14] Speaker 03:
We'll take the case under advisement.