[00:00:00] Speaker 03: We're not going to ask you to switch seats, even though it's going to be very hard for us to act together on this one. [00:00:11] Speaker 05: Thank you, Your Honor. [00:00:13] Speaker 05: May it please the Court? [00:00:14] Speaker 01: Which side are you? [00:00:19] Speaker 05: I'd actually like to start just by wrapping up one point from before. [00:00:23] Speaker 05: I hope you'll indulge me since I talked about the 2.1 issue during the first argument. [00:00:29] Speaker 03: I just want you to know that if you respond to an issue in the earlier appeal, we're going to have to give the other side an opportunity to respond to that. [00:00:37] Speaker 05: That's absolutely fine. [00:00:39] Speaker 05: I just wanted to say that this point we're making about whether or not it's appropriate to enjoin them from practicing the patents, if you can't enjoin them from practicing the patents, then all of a sudden the district court has no power to really enforce the contract in a way that has any teeth. [00:00:57] Speaker 05: And that's really problematic from us because our view is this entire case, this entire situation exists because they are trying to walk away from their obligations to maintain our exclusivity and invade our field of use. [00:01:15] Speaker 05: And if there's not some way to stop that, if there's not some possible mechanism to prevent our irreparable harm, then [00:01:24] Speaker 05: That just deprives the district court of any power to enter any meaningful remedy here. [00:01:29] Speaker 05: So go ahead. [00:01:30] Speaker 03: I'd like you to proceed to this case. [00:01:32] Speaker 05: OK, this case. [00:01:33] Speaker 05: Let's talk about this case. [00:01:35] Speaker 05: So at page 53 of Infineon's opening brief in the first appeal, it argued that the entirety of the original preliminary injunction needed to be vacated because the district court hadn't made detailed findings supporting the inclusion of design and development activities in the injunction. [00:01:52] Speaker 05: It talks about that issue at least four different places in the first appeal, and collectively spends more than 10 pages on that issue. [00:02:00] Speaker 05: Meanwhile, at the exact same time, it was making arguments about design and development, largely for the first time, to the district court in its motion to fire. [00:02:10] Speaker 04: Can I ask you some questions about 62C? [00:02:14] Speaker 04: I don't really understand exactly how it operates, so I want to ask you about that. [00:02:18] Speaker 04: So I've read some cases that have applied 62C and I've looked at the language and I think that what it says is that a district court can modify or suspend its injunction during the pendency of an appeal. [00:02:33] Speaker 04: Correct. [00:02:34] Speaker 04: Wait, just only during the pendency of the appeal. [00:02:37] Speaker 04: In other words, once the appeal is over, it's kind of like a stay pending appeal. [00:02:44] Speaker 04: You can modify the injunction during the appeal process. [00:02:48] Speaker 04: Once the appeal is over, it's the first injunction, the original injunction, that we go into effect if this court were to say that that injunction was properly granted. [00:03:00] Speaker 04: Is that correct to my understanding, or does the second injunction entirely eliminate the first injunction? [00:03:08] Speaker 05: So you are correct that Rule 62C says that the district court can modify the injunction during the pendency of the appeal of the original injunction. [00:03:17] Speaker 05: The courts have construed that permission to modify to be limited to very narrow circumstances, though. [00:03:25] Speaker 04: But do you agree it's only during the pendency of the appeal? [00:03:27] Speaker 04: I just want you to answer my narrow question before we get into these narrow times in which it can occur. [00:03:32] Speaker 05: That's my understanding. [00:03:34] Speaker 05: If the original injunction is affirmed, and then the jurisdiction goes back to the district court, and at that point, if you wanted to move to modify or move to stay or move to vacate, all of those motions could be made. [00:03:48] Speaker 05: OK, going back to what I was talking about, though, with the fact that Infineon was making the same arguments at the district court at the same time that it was making those arguments to your honors. [00:04:03] Speaker 05: That's what's not supposed to happen. [00:04:05] Speaker 05: That is the jurisdictional point, where courts have said it causes chaos, it wastes our time, it wastes the district court's time for both us and the district court to be addressing the same issues at the same time. [00:04:17] Speaker 05: And the modifications that are allowed in the Ninth Circuit under Rule 62C are very, very narrow and don't apply here. [00:04:24] Speaker 05: There are things like clarifying the injunction, which isn't what happened here. [00:04:27] Speaker 05: What happened here is there was a substantive modification. [00:04:33] Speaker 03: It just struck me that if we took the case first, and you note that your friend has 10 pages of briefing, and we were to decide that he's right on that question, and therefore the injunction is too broad, does that just completely mood out this case in its entirety, the second appeal? [00:04:54] Speaker 05: If you decide that it's unambiguous that 2.1 is in their favor in their reading, then I think it does mood it. [00:05:00] Speaker 05: If you decide that it's unambiguously in Maycom's favor, certainly it's not mooted. [00:05:05] Speaker 05: If you decide that there's a theme of you and me. [00:05:06] Speaker 03: No, no, no, no, no. [00:05:07] Speaker 03: OK, let me make sure, because that's not what I was saying. [00:05:10] Speaker 03: OK. [00:05:10] Speaker 03: If we find for them on that argument and conclude in the context of this first appeal that the paragraph was too broad, at least because it included the design and development stuff. [00:05:25] Speaker 03: So if we find for them on that issue, [00:05:27] Speaker 03: does that moot in its entirety the second appeal? [00:05:30] Speaker 03: Because it doesn't matter anymore. [00:05:35] Speaker 03: If we're concluding the original injunction is overgrown. [00:05:38] Speaker 05: If what you are doing is taking the original injunction and affirming it in part and redlining it in what happens to be the same way that the district court ultimately redlined it, then I think, yes, that probably moots the second appeal. [00:05:52] Speaker 01: Yeah. [00:05:52] Speaker 01: I mean, that's sort of where I was going, too. [00:05:55] Speaker 01: And that is. [00:05:58] Speaker 01: exactly what you said. [00:05:59] Speaker 01: I don't know that it moots it in the sense that if we want to send it back down and say, no, you can't do this. [00:06:09] Speaker 01: But we sort of like your language. [00:06:13] Speaker 01: If it's moot, it's non-existent. [00:06:17] Speaker 01: So how do we do that? [00:06:20] Speaker 05: If it's moot, it being the preliminary injunction. [00:06:22] Speaker 01: Yeah. [00:06:23] Speaker 01: No, no, no, no. [00:06:24] Speaker 01: It being the appeal. [00:06:25] Speaker 01: This second appeal. [00:06:27] Speaker 05: Yeah. [00:06:28] Speaker 05: I mean, I think, well, this would be the roadmap, I think, that they would propose, not the one that may come. [00:06:35] Speaker 03: And we appreciate that. [00:06:36] Speaker 03: We appreciate your assistance. [00:06:39] Speaker 05: I mean, I think what you could do is you could say, we affirm the injunction, except to the extent that it includes design, development, manufacture, use. [00:06:50] Speaker 05: and basically redline it out. [00:06:52] Speaker 05: In the first appeal. [00:06:54] Speaker 05: In the first appeal. [00:06:55] Speaker 05: I do think that there's a little bit of a logistical problem in the sense that the parole evidence was not before the judge as part of the first appeal. [00:07:03] Speaker 05: And California law does require that peak at the parole evidence to see if there's a latent ambiguity. [00:07:10] Speaker 05: We think that both the parole evidence and the plain language favor our view. [00:07:15] Speaker 01: So we could just send it back. [00:07:17] Speaker 01: I'm shaking my head no, but I'm agreeing with you. [00:07:20] Speaker 01: We could just send it back and say... Clean up this record. [00:07:24] Speaker 01: Yeah, do it over again. [00:07:26] Speaker 01: And by the way, we liked what you had to say. [00:07:29] Speaker 05: Yeah. [00:07:29] Speaker 05: I mean, we do think that there are, to the extent that you disagree with us on the parole evidence or the ambiguity question, we do think that there's also some factual questions embedded in the parole evidence. [00:07:39] Speaker 05: There's credibility questions. [00:07:40] Speaker 05: Ultimately, some of those questions may have to go to a jury. [00:07:43] Speaker 05: And so the right solution may be [00:07:45] Speaker 05: to vacate the portion of the injunction that relates to design and development, leave the rest in place, and send it back to the district court to sort out what happens with the rest. [00:07:54] Speaker 03: I'm sorry, to go to a jury in a preliminary injunction context? [00:07:58] Speaker 03: I'm sorry. [00:07:59] Speaker 03: What's the scenario? [00:08:01] Speaker 05: So you would be striking it out. [00:08:02] Speaker 05: But then ultimately, we will get to trial in this case where there'll be questions about the parole evidence that need to be resolved. [00:08:08] Speaker 03: With regard to the permanent injunction, not bringing back the question? [00:08:12] Speaker 05: Not bringing it back. [00:08:13] Speaker 03: That's right. [00:08:15] Speaker 05: The judge might not decide it now. [00:08:17] Speaker 05: It might wait. [00:08:20] Speaker 04: Just hypothetically, and I know you don't agree with this, but what if in the first appeal we were to strike the third paragraph or suggest that there be a striking of the third paragraph, that would definitely moot this issue in the second appeal. [00:08:34] Speaker 05: It would moot it, but we would absolutely disagree with that result, which would take all the teeth out of the objection. [00:08:51] Speaker 05: I do want to make one more point in addition to what I said earlier about the reading of section 2.1. [00:08:56] Speaker 05: I think that when you compare the original injunction to the revised injunction, which takes out the design and development language, what you end up with is language that reads in a way that's almost nonsensical, because there really is a rewriting of section 2.1 in the revised injunction. [00:09:16] Speaker 05: So what happens then is that the revised injunction says [00:09:21] Speaker 05: that Infineon may not offer to sell, sell, or service, nor may it market, sell, or service. [00:09:29] Speaker 05: So you suddenly have this repetition that has really rewritten section 2.1 in a way that we think is incorrect. [00:09:37] Speaker 03: Maybe you've already answered this, but what work, if you're correct in your interpretation, what work is the notwithstanding the foregoing doing? [00:09:46] Speaker 05: It's agreeing that IR could go ahead with that testing of products that were designed to operate below 100 megahertz, but in some instances might operate above, because these things have a range of frequencies. [00:10:02] Speaker 05: And there's a whole host of parole evidence on that issue. [00:10:10] Speaker 03: OK. [00:10:10] Speaker 03: Thank you. [00:10:11] Speaker 03: We serve the remainder of your time very vital. [00:10:15] Speaker 00: Mr. Willie? [00:10:16] Speaker 00: Well, Your Honor, since Ms. [00:10:17] Speaker 00: Tesser mentioned something from the first appeal, I'd like to briefly respond to that. [00:10:22] Speaker 00: And her point was that the district court would have no power to enforce the contract if this provision of the injunction is removed. [00:10:34] Speaker 00: We disagree, Your Honor. [00:10:35] Speaker 00: There is a way for the district court to enforce the injunction. [00:10:38] Speaker 00: And this was one of the points of error that we did not discuss in the argument of the other appeal. [00:10:44] Speaker 00: And that is, they could meet their burden to show a likelihood of success and the merits that that provision had been breached, and then show that they were irreparably harmed because of that breach. [00:10:54] Speaker 00: Because to do that, they would have to show that we actually did violate the exclusive license. [00:11:00] Speaker 00: They would have to show that we infringed the patents. [00:11:03] Speaker 00: And then we would have a product. [00:11:04] Speaker 00: We would have claim construction, et cetera. [00:11:07] Speaker 00: All the things we don't have now, because they never even attempted. [00:11:11] Speaker 03: No, but I think her point, which is [00:11:12] Speaker 03: a fair one, which is that if you delete paragraph three, then there's no teeth. [00:11:19] Speaker 03: I mean, the injunction has no teeth. [00:11:22] Speaker 03: So assuming that we agree with the district court that there was a likelihood of success and that there was a reasonable harm, what is the impact or the import of this injunction in the absence of that specific language? [00:11:34] Speaker 00: The import of the injunction in the absence of that specific language is that the contract still exists. [00:11:39] Speaker 00: rather than having been terminated, which is the only thing they move for likelihood of success on, which is the only thing that should have been the scope of the district court's order. [00:11:51] Speaker 03: In other words, it still exists so they can enforce it. [00:11:53] Speaker 00: Right. [00:11:53] Speaker 00: They can enforce it against us if we breach the contract. [00:11:56] Speaker 00: And that would have been the same result that would have obtained had we not terminated the contract. [00:12:03] Speaker 00: In other words, showing a likelihood of success on breach of one contractual theory [00:12:09] Speaker 00: doesn't entitle you to specific performance of other provisions of the agreement. [00:12:14] Speaker 00: OK. [00:12:14] Speaker 00: Why don't we move on to this appeal? [00:12:16] Speaker 00: OK. [00:12:17] Speaker 00: So there were several questions asked about mootness of the second appeal. [00:12:25] Speaker 00: So to make this simple, if this court decides any of the other issues raised in the first appeal, [00:12:35] Speaker 00: except for the issue about section 2.1. [00:12:37] Speaker 00: If it decides any of the other issues in our favor, that moots this appeal. [00:12:43] Speaker 00: And it also avoids the need for the court to address the jurisdictional issue. [00:12:51] Speaker 00: Now, I would like to respond to basically the question that Judge Stoll asked about whether or not the change in the injunction is effective [00:13:04] Speaker 00: Assuming this court didn't do anything, if it just sort of remanded the injunction, would we go back to the original injunction or would we stay with the modification? [00:13:13] Speaker 00: I believe the rule prescribes when the court can make a modification. [00:13:17] Speaker 00: It's simply giving the district court the power to make the modification while the appeal is pending. [00:13:24] Speaker 00: But if the appellate court doesn't do anything to that modification, that modification would persist even after remand. [00:13:31] Speaker 00: And I think the natural resources defense counsel case that we cited in our brief is an example of where that would make sense, because that was a permanent injunction. [00:13:42] Speaker 00: And there, the Ninth Circuit said that the district court had the power to modify the permanent injunction while the case was on appeal to clarify a couple of provisions, which substantively changed what the defendant was ordered to do in that case. [00:14:00] Speaker 00: But there wouldn't be any subsequent litigation after that, because it was a permanent injunction. [00:14:06] Speaker 00: So that stayed part of the permanent injunction after remand. [00:14:12] Speaker 00: So we would say that that rule is simply giving the district court power during the appeal to do something, which it might not otherwise have, because jurisdiction passes to this court. [00:14:24] Speaker 04: I understand your reading of it that way. [00:14:27] Speaker 04: And that's why I asked the question, because I can read it that way? [00:14:30] Speaker 04: And then I can also read it the other way that I was suggesting. [00:14:33] Speaker 04: And I saw a couple cases that suggested the other reading, but anyway, I appreciate your answer on that. [00:14:40] Speaker 00: Okay. [00:14:41] Speaker 00: So now I would like to address the state of the record with respect to the parole evidence, because both parties put the parole evidence into the record for the first appeal without objection from the other party. [00:14:58] Speaker 00: There is a case that we cite. [00:15:00] Speaker 00: It's in the appendix at page 2753. [00:15:05] Speaker 00: Dakota Industries versus Dakota Sportswear, 988F, second 61. [00:15:10] Speaker 00: That's a case out of the Eighth Circuit from 1993. [00:15:13] Speaker 00: And what that case says is that the appellate court has the power to consider additional evidence that was not in the record before the district court [00:15:23] Speaker 00: if the evidence was offered to correct a misrepresentation, intentional or otherwise. [00:15:29] Speaker 00: And that's stated explicitly in. [00:15:31] Speaker 00: We're not saying they intentionally misrepresented something. [00:15:34] Speaker 00: But there was a misrepresentation. [00:15:37] Speaker 00: There was an argument that the language in the second sentence of section 2.1, that the verbs, market, sell, service, were a shorthand for the verbs in the first sentence. [00:15:48] Speaker 00: And so we offered parole evidence [00:15:53] Speaker 00: to rebut that misrepresentation. [00:15:55] Speaker 00: And remember, the district court had no briefing about the meaning of this language before that. [00:16:01] Speaker 00: That goes to the merits. [00:16:05] Speaker 00: It does go to the merits, Your Honor. [00:16:07] Speaker 00: There was no briefing, though, on likelihood of success on the merits as to what that provision meant, because there was no motion for a preliminary injunction for an alleged violation. [00:16:18] Speaker 00: of that provision. [00:16:19] Speaker 00: So there had been no briefing on the meaning of that language prior to that time. [00:16:24] Speaker 01: Do you think that what the district court did did not materially alter the status quo? [00:16:33] Speaker 00: Excuse me, Your Honor, what the district court did in what respect? [00:16:36] Speaker 01: Modifying the injunction. [00:16:39] Speaker 00: Well, that depends upon what the status quo means. [00:16:44] Speaker 00: And I don't think that's clear from the Ninth Circuit case law. [00:16:48] Speaker 00: But the Natural Resources Defense Council case, which I referred to earlier, which we rely upon in our brief, there, there was a specific water test that someone was supposed to do. [00:17:02] Speaker 01: And it was modified to be a much more... I'm laughing because what you're really saying is, well, it was no good either way. [00:17:11] Speaker 01: The injunction. [00:17:14] Speaker 01: Sorry. [00:17:14] Speaker 01: You're saying it was narrowed as we requested, but either way it was invalid. [00:17:20] Speaker 00: Well, we certainly contend in the first appeal that the injunction should never have been issued in the first place on paragraphs. [00:17:26] Speaker 01: But you're the one who asked for it to be narrowed. [00:17:29] Speaker 00: Right. [00:17:29] Speaker 00: And we asked for it to be narrowed. [00:17:31] Speaker 00: And what we think the Ninth Circuit is referring to when it talks about preserving the status quo is preserving the intent of the injunction. [00:17:42] Speaker 00: Because that's really what Natural Resources Defense Council decided happened there, that the requirements for the defendant were changed. [00:17:54] Speaker 00: The injunction was modified for more specific requirements, but that that was consistent with the original intent of the injunction. [00:18:02] Speaker 00: The intent of this injunction was to specifically enforce Section 2.1. [00:18:08] Speaker 00: Now, we, of course, contend that's improper. [00:18:10] Speaker 01: What about power controls v. hibernetics? [00:18:14] Speaker 00: OK. [00:18:15] Speaker 00: So power controls versus hibernetics deals with sort of the other side of this, which is interfering with the jurisdiction of the appellate court. [00:18:24] Speaker 00: And there, what the Ninth Circuit has said is that does the change by the district court affect the core issues on appeal? [00:18:34] Speaker 00: There's a big difference factually between [00:18:37] Speaker 00: this case and the case the court cited. [00:18:42] Speaker 00: In that case, there was a change of the findings of fact and conclusions of law, which more or less changed the question the appellate court had to answer. [00:18:55] Speaker 00: And may have even required re-briefing, depending upon how extensive those are. [00:18:59] Speaker 00: That's not really discussed in the case. [00:19:01] Speaker 00: But the implication is it was three days before oral argument. [00:19:05] Speaker 00: The Federal Circuit thought it was deciding [00:19:07] Speaker 00: one set of issues based on findings of fact and conclusions of law. [00:19:10] Speaker 00: Now suddenly it has different findings of fact and conclusions of law to deal with. [00:19:16] Speaker 00: What we have not seen in the Ninth Circuit is a case like this one, where the change by the district court simply moots one of the issues before the court. [00:19:28] Speaker 00: There's four other issues before this court that are the core issues on appeal. [00:19:34] Speaker 00: Unless they have mooted all of them. [00:19:37] Speaker 00: Suppose that it mooted all of them? [00:19:39] Speaker 00: Yes. [00:19:43] Speaker 01: It simply mooted all the issues. [00:19:45] Speaker 00: That could be good from the standpoint of judicial economy taking another case off this court's docket. [00:19:52] Speaker 00: So what is unclear from the case law is whether or not that differs. [00:19:58] Speaker 00: Interfering with the question this court has to answer versus simply removing an issue from the court is an interference with this court's jurisdiction. [00:20:08] Speaker 00: I don't think the Ninth Circuit cases answer that question. [00:20:14] Speaker 00: With respect to section 2.1, the issues with respect to 2.1, we have always contended that the plain, ordinary meaning of this language means exactly what it says, which is IR, which is now Infineon, has rights throughout the field of use and that the only rights that are circumscribed [00:20:35] Speaker 00: are those specifically set forth in the second section of section 2.1. [00:20:40] Speaker 00: Our parole evidence, again, was not offered as an interpretation of the contract. [00:20:45] Speaker 00: It was offered to rebut the misrepresentation that was made by MACOM to the district court in seeking the scope of the injunction that it sought. [00:20:55] Speaker 00: So we would contend that whether the court considers or doesn't consider the parole evidence, [00:21:03] Speaker 00: that the interpretation of the district court is correct. [00:21:06] Speaker 00: And below, during the consideration of the motion to modify the injunction, MACOM also contended that the language was clear. [00:21:17] Speaker 00: However, before this court, MACOM has contended the language is clear, but they've contended it means two different things. [00:21:26] Speaker 00: On the one hand, they argue [00:21:28] Speaker 00: that the second sentence really is their Venn diagram that they put in their brief, which, by the way, is not something that was record evidence during negotiation. [00:21:38] Speaker 00: That's just a demonstrative that they put in their brief. [00:21:42] Speaker 00: They contend that all the second sentence does is say, we have rights in the field of use outside the exclusive field. [00:21:50] Speaker 00: In other words, there's no rights given to us in the exclusive field. [00:21:54] Speaker 00: But then they also present the parole evidence [00:21:57] Speaker 00: which the district court found was inconsistent with the plain language and couldn't be reconciled with the plain language or the agreement. [00:22:04] Speaker 00: They also present the parole evidence saying, well, we did get some rights in the exclusive field. [00:22:10] Speaker 00: It's just limited to this very narrow area of testing, which doesn't make any sense because, of course, if the parties wanted to carve out a narrow area for testing, that's what they would have done rather than taking out all the verbs from the first sentence. [00:22:26] Speaker 00: from the second sentence, which is what they actually did. [00:22:29] Speaker 00: So they not only have presented conflicting interpretations of the language to the district court, they presented conflicting interpretations to this court in their briefing. [00:22:42] Speaker 00: The finding by the district court is the correct interpretation of the language. [00:22:47] Speaker 00: One other alternative for this court, if the court decides that they agree with the district court's interpretation, [00:22:54] Speaker 00: but think that the district court did not have the power to modify the injunction for whatever reason. [00:23:01] Speaker 00: This court could treat the finding as an indicative ruling under Rule 62.1, and then in the first appeal do exactly what the district court did in modifying the injunction. [00:23:22] Speaker 01: Advisory, as it were. [00:23:25] Speaker 00: Well, that's exactly what Rule 62.1 allows a district court to do. [00:23:30] Speaker 00: And just to be clear, we offered the district court those options. [00:23:36] Speaker 00: We said the district court could stay this. [00:23:38] Speaker 00: It could issue an indicative ruling. [00:23:41] Speaker 00: And we felt the district court had the power to modify because this case was different in that it mooted an issue rather than changing the question the court was actually going to have to [00:23:53] Speaker 00: to answer. [00:23:54] Speaker 00: So the district court chose the latter, but if this court decides the district court didn't have that power, it could treat the finding as an indicative ruling and vacate that portion of the injunction in the first appeal. [00:24:08] Speaker 00: Thank you. [00:24:16] Speaker 05: I think I heard Mr. Willey say twice that the parole evidence was submitted with the motion to modify [00:24:22] Speaker 05: in order to rebut a misrepresentation. [00:24:25] Speaker 01: Which he said was not intentional. [00:24:27] Speaker 05: Well, I appreciated that, because that was not what he said about us below. [00:24:31] Speaker 05: But in fact, there was no misrepresentation. [00:24:33] Speaker 05: We stand by the statement that the second part of that second sentence is shorthand for all purposes that matter in this case. [00:24:44] Speaker 05: But setting that issue aside, I want the record to be clear here, because Infineon, in the context of the motion for preliminary injunction, made a strategic choice [00:24:52] Speaker 05: to downplay its design activities and its marketing activities in hopes of avoiding the injunction entirely. [00:25:00] Speaker 05: And it was only when it was clear that that strategy had failed that the parole evidence was submitted for the first time. [00:25:07] Speaker 05: And that's a strategic decision that they made and that we think that they should be stuck with. [00:25:15] Speaker 05: Next. [00:25:16] Speaker 01: I forgot to ask that question. [00:25:17] Speaker 01: I was going to ask that question. [00:25:18] Speaker 05: Oh, good. [00:25:19] Speaker 05: Good. [00:25:19] Speaker 05: I'm glad I managed to hit one that you forgot to ask. [00:25:22] Speaker 05: In the Ninth Circuit, the exceptions in which a district court is allowed to modify an injunction while a case is on appeal are narrow. [00:25:36] Speaker 05: And even though power controls, hibernetics, they argue is a different situation than here, we don't think it's really that different. [00:25:43] Speaker 05: We don't think it's a difference that matters. [00:25:45] Speaker 05: But even if you accept that argument, there's a whole body of Ninth Circuit case law that lays out the very narrow circumstances in which you can modify during appeal. [00:25:54] Speaker 05: None of those circumstances are met here. [00:25:56] Speaker 05: In our view, the district court wasn't trying to assist you in your exercise of jurisdiction. [00:26:00] Speaker 05: The district court wasn't clarifying. [00:26:03] Speaker 05: The district court wasn't putting in a more robust enforcement mechanism. [00:26:09] Speaker 05: Nothing like that. [00:26:10] Speaker 05: Those are the exceptions that you find in the Ninth Circuit. [00:26:15] Speaker 04: I understand what you're saying, but just the statutory language itself. [00:26:21] Speaker 04: The rule. [00:26:21] Speaker 04: The rule. [00:26:22] Speaker 04: Yeah. [00:26:23] Speaker 04: The rule reads very broadly. [00:26:25] Speaker 05: It's more broad. [00:26:26] Speaker 05: But the Ninth Circuit, the way they have construed that rule, is narrower than the language of the rule itself. [00:26:33] Speaker 04: So the Ninth Circuit should be followed instead of looking at the rule itself, the language of the rule. [00:26:39] Speaker 05: The Ninth Circuit's interpretation of the rule should be followed. [00:26:44] Speaker 05: And the Supreme Court, I think in the 1930s, that Marese case, or it might have been the 1960s. [00:26:49] Speaker 05: There's a lot of old cases we cited to you all. [00:26:51] Speaker 01: The 30s and the 60s are all the same. [00:26:54] Speaker 05: Well, but in that case, the Supreme Court has said that the general rule is that jurisdiction, the district court, ends when an order is on appeal. [00:27:03] Speaker 05: And this is an application of that. [00:27:07] Speaker 05: OK, there were some points made about the demonstrative on page 8 of our opposition brief. [00:27:13] Speaker 01: Your Venn diagram? [00:27:14] Speaker 05: Our Venn diagram, which I think is a lovely Venn diagram that is helpful to people of understanding. [00:27:19] Speaker 01: I draw them in the air all the time. [00:27:21] Speaker 01: I'm not offended by Venn diagram. [00:27:23] Speaker 05: We are not at all taking the position that that was created by the parties in 2010. [00:27:27] Speaker 05: That is something that was created for this litigation. [00:27:29] Speaker 05: Infineon repeatedly complains about that, but they don't actually point out anything in the Venn diagram that they can test. [00:27:34] Speaker 05: I think everybody agrees the Venn diagram is an accurate representation of the rights as divided by section 2.1. [00:27:43] Speaker 05: Last thing is there were some points made about Rule 62.1 being treated as an indicative ruling. [00:27:52] Speaker 05: I don't think there's any precedent for doing it that way, or at least I'm unaware of, and they haven't cited any cases that said that. [00:28:00] Speaker 05: And so I would just ask, I don't think that that would be appropriate procedurally to do it that way, because I do think that the appropriate thing here would be for the district court to have not considered these issues and made these modifications during the appeal. [00:28:14] Speaker 05: That's all. [00:28:15] Speaker 05: We would ask that the first order be affirmed and that the second order be reversed. [00:28:20] Speaker 02: Thank you. [00:28:20] Speaker 02: Thank you. [00:28:21] Speaker 02: We thank both sides. [00:28:22] Speaker 02: And the case is submitted. [00:28:24] Speaker 02: And we'll just hold on for some comments from the dwellers. [00:28:27] Speaker 01: I just want to say I want to thank both counsel for a really good representation of your clients. [00:28:34] Speaker 01: And in particular, Ms. [00:28:37] Speaker 01: Tesser, you grasp your nettles firmly in the prior case. [00:28:41] Speaker 01: And I really like to see that when somebody says, [00:28:44] Speaker 01: OK, in that case, we lose. [00:28:47] Speaker 01: And it's a lesson for my clerks back there in good lawyering. [00:28:52] Speaker 01: So thank you. [00:28:53] Speaker 02: Thank you. [00:28:54] Speaker 02: Thank both sides. [00:28:55] Speaker 02: Case is submitted. [00:28:56] Speaker 02: That concludes our proceedings for this morning. [00:28:58] Speaker 02: All rise. [00:29:00] Speaker 02: The honorable court is adjourned until tomorrow morning. [00:29:03] Speaker 02: It's an o'clock AM.