[00:00:06] Speaker 01:
The first case for argument this morning is Nova Chemical v. Dow Chemical Company, 161576.

[00:00:13] Speaker 01:
Mr. Dunner.

[00:00:29] Speaker 00:
Good morning, and may it please the court.

[00:00:33] Speaker 00:
The district court's attorney fee ruling in this case

[00:00:36] Speaker 00:
is based on several critical legal errors.

[00:00:39] Speaker 00:
First of all, the court distinguished between common patent actions and independent actions, and what it said is very relevant.

[00:00:47] Speaker 00:
It said, independent action is an uncommon action.

[00:00:52] Speaker 00:
It's an extreme litigation tactic.

[00:00:54] Speaker 00:
Under almost all circumstances, one should not reasonably expect to be able to satisfy, one which court should try to deter by an award of attorney fees to the prevailing party.

[00:01:05] Speaker 00:
Having distinguished independent actions from conventional actions, you would have expected that the district court would have compared Nova's conduct to other independent actions, but it did not.

[00:01:17] Speaker 00:
It compared it to what it referred to as the full panoply of patent cases.

[00:01:21] Speaker 00:
And we suggest that is clearly a error and has significant implications in this case.

[00:01:27] Speaker 01:
And what do you rely that on?

[00:01:28] Speaker 01:
I mean, we don't have much guidance from the Supreme Court on this precise question.

[00:01:34] Speaker 01:
about whether or not we would consider this as part of the patibly of patent actions or whether this should be treated separately.

[00:01:41] Speaker 01:
So how do we know the answer to your question?

[00:01:44] Speaker 01:
How do we know it was clear legal error?

[00:01:46] Speaker 00:
The answer, I suggest, is common sense.

[00:01:49] Speaker 00:
Let me explain why.

[00:01:50] Speaker 00:
If the test for determining whether you satisfy an independent action, you have to satisfy the beggarly standard, the grave miscarriage of justice.

[00:02:03] Speaker 00:
And if

[00:02:04] Speaker 00:
In order to do that, if you properly plead that, if you plead a fraud case under the grave miscarriage of justice, it will always stand out from a conventional patent case, always.

[00:02:15] Speaker 00:
And so if it always stands out from a conventional patent case, the only comparison to determine under octane fitness whether it stands out from others

[00:02:26] Speaker 00:
is to stand out from comparable cases, independent actions.

[00:02:30] Speaker 01:
Well, that may have some heft if that were all the district court said.

[00:02:33] Speaker 01:
If all the district court says is, I'm awarding attorney's fees under 285 because this was an extreme tactic, an extreme procedure, and therefore it stands out, OK.

[00:02:44] Speaker 01:
But he certainly relied.

[00:02:45] Speaker 01:
His analysis was much more fulsome, looking to the reasonableness of the allegations and everything else that went on, right?

[00:02:53] Speaker 01:
So that wasn't the sole basis upon which he boarded an attorney space.

[00:02:57] Speaker 00:
I have to turn off my hearing aid.

[00:02:59] Speaker 00:
My apologies.

[00:03:02] Speaker 00:
Other district courts, I don't know of any district court which has said what this district court said, comparing what was done in an independent action to another conventional action.

[00:03:14] Speaker 00:
So I don't know of any district court case that supports what the district court did.

[00:03:18] Speaker 04:
But he sounded that your allegations weren't plausible.

[00:03:23] Speaker 04:
In other words, you had a very weak case, maybe suggesting that it was frivolous.

[00:03:29] Speaker 00:
Your Honor, my answer to that is two-fold.

[00:03:33] Speaker 00:
One, Octane Fitness, I believe our cases are cited on page 41 in the book brief, but Octane Fitness basically says that the fact that you lost the case does not mean... Well, that's not what he said.

[00:03:45] Speaker 04:
He didn't say just because you lost, he just said your allegations weren't plausible.

[00:03:49] Speaker 00:
And my answer to that is, before we file this case,

[00:03:53] Speaker 00:
we conferred with three former federal judges.

[00:03:56] Speaker 04:
So we should defer to former federal judges over what we think?

[00:04:00] Speaker 04:
Pardon?

[00:04:00] Speaker 04:
We should defer to former federal judges compared to what we think?

[00:04:05] Speaker 00:
Absolutely.

[00:04:06] Speaker 00:
That's absolutely correct, Your Honor.

[00:04:08] Speaker 00:
You are the final determiners of the case.

[00:04:12] Speaker 00:
But what we did was in this case, we went through a pre- and post-filing action

[00:04:20] Speaker 00:
that the district court judge himself found was extraordinary.

[00:04:24] Speaker 00:
We did it, he found it was extraordinary because we wanted to make sure that what we did... Yeah, but if he found, the district court found that it was, your allegations weren't plausible.

[00:04:34] Speaker 04:
If we agree with that, because you failed to allege perjury, because you failed to allege any reason to believe that the lawyers knew about it, which would be the requirements for an independent action,

[00:04:49] Speaker 04:
there's a finding there that your allegations weren't plausible.

[00:04:54] Speaker 04:
Why isn't that a basis for awarding attorney's fees?

[00:04:58] Speaker 00:
If you agree that the positions that we took, as confirmed by three former federal judges, if you agree that their positions were not plausible, that their positions were not plausible, then you can go one way rather than the other way.

[00:05:17] Speaker 00:
But the fact that the district court found that the positions were not plausible does not dictate the award of attorney fees.

[00:05:24] Speaker 04:
No, but he didn't say that it did.

[00:05:27] Speaker 04:
But it supports an award of attorney fees.

[00:05:30] Speaker 00:
It doesn't dictate it.

[00:05:32] Speaker 00:
And my answer to that is, under the totality of circumstances test of obtained fitness, you need to look at all of the evidence.

[00:05:41] Speaker 00:
And all of the evidence included detailed

[00:05:45] Speaker 00:
statements in declarations of three former federal judges who looked at the testimony of two witnesses in other proceedings and found out that they directly contradicted the positions taken by Dow in Delaware.

[00:06:04] Speaker 00:
But that's not enough for an independent action, right?

[00:06:09] Speaker 00:
Well, it's part of what is in the independent action.

[00:06:13] Speaker 04:
Yes, if you have... It might not be enough for 60, rule 60, B3 relief.

[00:06:20] Speaker 00:
If we can show, and two of the judges, Judge Michel and Judge Free, went through what the attorneys did.

[00:06:28] Speaker 00:
They tied the conduct to the attorneys.

[00:06:31] Speaker 00:
And they basically said, you had one witness, Soares, who said in Delaware that reaching results was easy.

[00:06:41] Speaker 00:
In Canada, he said,

[00:06:43] Speaker 00:
He didn't, he never believed it was possible.

[00:06:46] Speaker 00:
And he said that, uh, he didn't think, uh, you could get that result directly contradicted one another.

[00:06:53] Speaker 01:
Yeah, but, but the district, let's move on from that.

[00:06:55] Speaker 01:
I mean, did the district court find, and I don't know whether this was before the other side responded or whatever, that even if these alleged inconsistencies existed from Louisiana and Canada, they would be immaterial to the judgment in Dao Wan.

[00:07:10] Speaker 01:
And if we take that as a given, or at least a non-abusive discretion, then why, at least after they filed their response or their motion to dismiss, were you not obligated, if that were the view when you were now being presented with that, why, at least after that, should you not have closed up and walked away?

[00:07:29] Speaker 01:
And to me, that determination has little to do with getting cover from what the former federal judges said earlier in time.

[00:07:39] Speaker 00:
Your Honor, I'd like to answer that in two parts.

[00:07:41] Speaker 00:
One is, when the district court judge said it's immaterial, I submit that that was a clearly erroneous finding.

[00:07:50] Speaker 00:
You had Valenzuela, who was in charge of the tax events at Dow, saying that in 2001, all the patents were transferred to a new subsidiary, DGTI.

[00:08:05] Speaker 00:
His name was on a covering letter, which they said he knew nothing

[00:08:09] Speaker 00:
about the contribution agreement.

[00:08:11] Speaker 00:
His name was on the summary page, which had been detached from that agreement.

[00:08:17] Speaker 00:
So we obviously knew about it.

[00:08:19] Speaker 00:
And you have him basically taking a position which is inconsistent with the position taken by Dow in Delaware.

[00:08:27] Speaker 00:
The judge said that he can't look at extrinsic evidence.

[00:08:30] Speaker 00:
Well, the fact is the supplement

[00:08:39] Speaker 00:
B, I'm having a lapse, the document that this court relied on was basically extrinsic evidence.

[00:08:53] Speaker 00:
Well, you also relied on the Kate Maxwell testimony for the B supplement documents.

[00:08:59] Speaker 00:
The same thing.

[00:09:00] Speaker 00:
All of the documents they relied on were post filing of this suit, post 2005.

[00:09:09] Speaker 00:
So all I'm saying is for the district court judge to find out that it was immaterial, that is, I submit, that is a clearly erroneous fact-finding.

[00:09:18] Speaker 00:
It had the highest degree of materiality.

[00:09:21] Speaker 00:
They said that Valenzuela said, I think that is so.

[00:09:24] Speaker 00:
He was laid across the dam during the same testimony where he said they were all transferred.

[00:09:31] Speaker 00:
If they were all transferred, then Dow had no standing.

[00:09:34] Speaker 00:
That is totally inconsistent.

[00:09:36] Speaker 00:
was they're relying on the document, the B supplement document.

[00:09:40] Speaker 00:
The Surrey's testimony was not only inconsistent, it was contradictory to what he said in Delaware.

[00:09:48] Speaker 00:
If those facts are true and those facts are set forth in detail in the declarations of the three federal judges, then I submit that the judge is finding that it was immaterial

[00:10:00] Speaker 00:
is as clearly erroneous as it can possibly be.

[00:10:04] Speaker 04:
I didn't hear you, Your Honor.

[00:10:21] Speaker 00:
I don't remember.

[00:10:22] Speaker 01:
It could be in this opinion.

[00:10:24] Speaker 01:
I don't remember whether it was.

[00:10:26] Speaker 01:
If it was in the earlier opinion that we've already affirmed, then that's a given.

[00:10:30] Speaker 01:
It's too late to fight over that if we affirmed his determination on the merits of this case.

[00:10:38] Speaker 00:
Your Honor, again, I come back to the point.

[00:10:41] Speaker 00:
The fact that we lost on an issue does not mean that a position taken by a litigant such as Nova

[00:10:50] Speaker 00:
was justify the award of attorney fees.

[00:10:55] Speaker 00:
In other words.

[00:10:55] Speaker 01:
No, I understand that.

[00:10:57] Speaker 01:
But I'm just going to your point that that was a clear, absolute error.

[00:11:01] Speaker 01:
If we've already confirmed in our earlier affirmance of the district court's dismissal of this case that he was correct in that there was no, or any alleged inconsistency wasn't probative or germane to the conclusion in Dalai Lama, then that fight has been fought, right?

[00:11:20] Speaker 00:
Your Honor.

[00:11:21] Speaker 00:
The finding that the affirmance of the earlier decision was a Rule 36 affirmance.

[00:11:30] Speaker 00:
And one cannot tell, not only is there case law, Sparks versus Eastman Kodak, which says that the fact that a Rule 36 issues does not mean that sanctions should be awarded.

[00:11:41] Speaker 01:
That's not what I'm suggesting.

[00:11:43] Speaker 01:
I'm not suggesting sanctions should be awarded because of that.

[00:11:45] Speaker 01:
I'm suggesting the fight we're having

[00:11:49] Speaker 01:
over whether or not this was material or immaterial to the conclusion in Dahawan is one that it seems to me has been likely resolved in the first case.

[00:11:58] Speaker 00:
I do not.

[00:11:59] Speaker 00:
The issuance of a Rule 36 opinion affirming the dismissal of the independent action does not indicate what the basis was for this court's affirmance.

[00:12:10] Speaker 00:
The court might have been focusing on that point.

[00:12:14] Speaker 00:
The court might have been focusing on any point.

[00:12:16] Speaker 00:
It doesn't tell us

[00:12:17] Speaker 00:
what the reasoning was of this court in terms of its affirmance.

[00:12:21] Speaker 00:
I do not know.

[00:12:23] Speaker 00:
Going back to the original opinion, there certainly was reference to the fact that there was extrinsic evidence.

[00:12:34] Speaker 00:
All I'm telling you is it is a fact, which I think is indisputable, that the Kate Maxwell statement about schedule B supplement was extrinsic evidence.

[00:12:47] Speaker 00:
And the court relied on that.

[00:12:49] Speaker 00:
And all I'm saying is the Valenzuela event is no more, no less, extrinsic than the Kate Maxwell testimony.

[00:12:57] Speaker 00:
So I see I'm running out of time.

[00:13:03] Speaker 00:
You're in your rebuttal.

[00:13:04] Speaker 01:
Why don't we hear from you this time?

[00:13:05] Speaker 01:
OK.

[00:13:06] Speaker 01:
Thank you.

[00:13:06] Speaker 01:
Why don't we hear from you this time?

[00:13:24] Speaker 04:
Police the court.

[00:13:25] Speaker 04:
Mr. Hammeron, I think when you're sitting at council table, it would be good not to try to communicate with the court by your body language that you have disdain for the argument that Mr. Dunner is making.

[00:13:37] Speaker 04:
That was not my intent, Your Honor.

[00:13:38] Speaker 04:
Well, you were rolling your eyes and making faces.

[00:13:41] Speaker 04:
I suggest you don't do that.

[00:13:42] Speaker 04:
I really was not intending to do that, Your Honor.

[00:13:44] Speaker 03:
I apologize if that was the case.

[00:13:46] Speaker 03:
You received that.

[00:13:47] Speaker 03:
It was not my intention whatsoever.

[00:13:49] Speaker 03:
I do apologize for that.

[00:13:50] Speaker 03:
You thought that was the case.

[00:13:52] Speaker 03:
I mean, there's very serious allegations were made in the case, and I do have, you know, I would say a personal stake in it, but I certainly do not think that Mr. Donner was saying something that would be, something that would be... Go ahead.

[00:14:03] Speaker 04:
You've heard me.

[00:14:05] Speaker 04:
Impassivity, as well as city and council table, is a good approach.

[00:14:09] Speaker 04:
Thank you, Your Honor.

[00:14:12] Speaker 00:
I will keep that in mind.

[00:14:20] Speaker 04:
Let me tell you the one thing that concerns me about the district court's opinion here is this notion that there were less inflammatory ways of dealing with the situation.

[00:14:39] Speaker 04:
I mean, if in fact there had been plausible allegation here, I'm not sure that I see

[00:14:48] Speaker 04:
that the mere filing of the independent action would be something that was inappropriate.

[00:14:55] Speaker 04:
I mean, do you agree with that?

[00:14:57] Speaker 03:
I do, Your Honor.

[00:14:58] Speaker 03:
I do not agree that it wasn't appropriate for this reason, Your Honor.

[00:15:01] Speaker 03:
The district court stated that what you found was at best a mere inconsistency.

[00:15:06] Speaker 04:
No, no, no.

[00:15:08] Speaker 04:
But you're not dealing with my hypothetical.

[00:15:09] Speaker 04:
I'm saying hypothetically, if the allegations were plausible, and I understand he found they weren't plausible, but if the allegations were plausible,

[00:15:19] Speaker 04:
I don't understand the point about it being inflammatory to file an independent action.

[00:15:24] Speaker 04:
I don't see that that's inappropriate.

[00:15:27] Speaker 04:
Do you agree with that?

[00:15:29] Speaker 03:
I do not agree with that, Your Honor, for this reason.

[00:15:30] Speaker 03:
Why not?

[00:15:30] Speaker 03:
Because the case was still pending before the district court.

[00:15:34] Speaker 03:
The court had the supplemental damages case going at that time.

[00:15:37] Speaker 03:
We had tried the case and the court was considering the damages issue.

[00:15:41] Speaker 03:
So if they thought there was some plausible basis to make allegations that the other side agreed or career ending,

[00:15:47] Speaker 03:
even if plausible in some way, they could have gone to the district court and simply have to have some discovery, limited discovery on.

[00:15:54] Speaker 03:
They said that we have no evidence outstanding, and we'd like to take some discovery on that.

[00:15:59] Speaker 03:
We have evidence that Dr. Swartz may have given inconsistent testimony.

[00:16:03] Speaker 03:
That's plausible in some way.

[00:16:06] Speaker 03:
And they had no basis for election attorney involvement, but if they did have some basis for it, which they'd never come up with, then they could have just gone to the district court.

[00:16:13] Speaker 03:
And I think that's the court's point, is that he had the case at the time.

[00:16:17] Speaker 03:
They could have gone and said, let's take some limited discovery on this.

[00:16:20] Speaker 03:
And if something comes from it then, then they could proceed with the more full-blown motion to vacate the judgment.

[00:16:27] Speaker 04:
But they didn't do that.

[00:16:28] Speaker 04:
I'm having trouble seeing why they have to.

[00:16:30] Speaker 04:
approach it that way, if they have a plausible claim.

[00:16:33] Speaker 04:
There's nothing wrong, even if it's inflammatory, if you have a plausible claim, there's nothing wrong with asserting it, is there?

[00:16:39] Speaker 03:
Well, Your Honor, if you're going to make allegations of that nature, I think the better course certainly would be that the court's point is to go and use some other... Yeah, but I'm unclear what the other mechanism is.

[00:16:51] Speaker 01:
What's the procedural mechanism to get relief from the prior judgment?

[00:16:55] Speaker 01:
You were time-borrowed from a 60-B.

[00:16:58] Speaker 01:
I'm not sure I see what the other alternatives they had were.

[00:17:01] Speaker 03:
Well, Your Honor, Judge Litvin, for example, one of the former judges they talked about, said that he thought there was a potential inconsistency that should be brought to the court's attention.

[00:17:09] Speaker 03:
I think what the district court was saying is you could have brought this to my attention.

[00:17:13] Speaker 03:
We could have taken some... How?

[00:17:14] Speaker 01:
Under what's the procedural mechanism where they could have brought this to my attention?

[00:17:18] Speaker 03:
Well, since the district court had the case before, he could have simply motioned to re-open discovery and let them take some testimony on the issue of whether there was

[00:17:27] Speaker 03:
inconsistent testimony, whether there was a training ball.

[00:17:29] Speaker 01:
What case was before him?

[00:17:30] Speaker 01:
Because we've had several incarnations of this.

[00:17:32] Speaker 01:
Wasn't it the second case?

[00:17:33] Speaker 01:
Was it really the first case?

[00:17:35] Speaker 01:
No, the second case.

[00:17:36] Speaker 01:
The second case, which just dealt with another issue that ultimately that side prevailed on in any event.

[00:17:42] Speaker 01:
What was at the heart of the question, the questions we were dealing with here in Dao Wan?

[00:17:48] Speaker 03:
Standing is always an issue that a court can consider at any point.

[00:17:52] Speaker 03:
So if there was no standing for the second case, you call it the supplemental damage.

[00:17:55] Speaker 02:
I don't understand what you're arguing.

[00:17:56] Speaker 02:
If they wanted to attack the first judgment that had become final and they couldn't file a Rule 60 motion, then what other way could they have done it except through this independent cause of action?

[00:18:08] Speaker 02:
Are you saying that they should have gotten some discovery first on the second case, and if that had sufficient grounds, then they could file the independent cause of action?

[00:18:18] Speaker 03:
You're going to think, given the facts here, that's the only course that would have been reasonable, in fact, is to try and get some discovery, make inquiries to see if they had a possible basis.

[00:18:27] Speaker 03:
I mean, the district court found they did not have a possible basis.

[00:18:30] Speaker 03:
But if they thought they had something there, they could have gone to the district court and asked for permission to take some discovery.

[00:18:36] Speaker 03:
So I said standing.

[00:18:36] Speaker 02:
I don't see how that judgment call in itself is sufficient for fees.

[00:18:41] Speaker 02:
Because ultimately, they had to write the file this, and they decided that they had enough.

[00:18:46] Speaker 02:
They didn't need anything else.

[00:18:48] Speaker 02:
They were wrong.

[00:18:49] Speaker 02:
But they did what they thought was due diligence.

[00:18:54] Speaker 02:
So the mere fact that they filed that without first going to the district court seems completely immaterial to me.

[00:19:01] Speaker 03:
It does not order a war fee simply because there was a failure to go to the fourth first to bring it to his attention.

[00:19:08] Speaker 03:
He looked at the totality of circumstances.

[00:19:10] Speaker 02:
No, I understand that.

[00:19:10] Speaker 02:
But I think we were trying to understand his argument

[00:19:14] Speaker 02:
This was a drastic tactic, and I don't see anything drastic about it.

[00:19:18] Speaker 02:
It was really their only tactic to get the first judgment undone, wasn't it?

[00:19:23] Speaker 03:
I don't think it is, if you have the right to go to the district court and have some big discovery.

[00:19:28] Speaker 02:
But you just said, what procedural mechanism could they have used to get that first judgment undone other than this independent cause of action?

[00:19:35] Speaker 03:
Your Honor, what they could have done is gone to the district court, asked for some discovery,

[00:19:39] Speaker 03:
so they could find out if they really had a false basis.

[00:19:42] Speaker 04:
On what basis?

[00:19:42] Speaker 04:
There wasn't anything written here before.

[00:19:43] Speaker 03:
Because there's always an ability to attack standing.

[00:19:47] Speaker 03:
So the second case was pending.

[00:19:49] Speaker 03:
It was filed.

[00:19:50] Speaker 03:
The case was filed two times.

[00:19:51] Speaker 04:
Back to standing once it's been determined adversely?

[00:19:53] Speaker 03:
Yes, right.

[00:19:54] Speaker 03:
If there's new evidence for it, such that you think you might have a basis.

[00:19:57] Speaker 04:
Well, the rule 60 has a mechanism for that, but there's a one-year time limit.

[00:20:02] Speaker 03:
Not on rule 60 before, Your Honor.

[00:20:04] Speaker 03:
That is not a one-year time limit.

[00:20:05] Speaker 03:
So they could have gone in and asked for a discovery on that, and attack standing,

[00:20:09] Speaker 03:
under Rule 60B4.

[00:20:11] Speaker 03:
They didn't do that.

[00:20:12] Speaker 03:
So that would have been a mechanism for that one.

[00:20:14] Speaker 03:
Because B4 does not have a time limit.

[00:20:16] Speaker 03:
But they didn't take that course of action.

[00:20:17] Speaker 03:
I think, Your Honor, the important point here is that there's no mention of 60B4 by the district court, right?

[00:20:24] Speaker 03:
No.

[00:20:24] Speaker 03:
The district court simply said you could have used less inflammatory means.

[00:20:28] Speaker 03:
And those less inflammatory means, I would submit, would be either go into the court and bring it to his attention so that it could take some discovery, which would allow them to attack him.

[00:20:36] Speaker 04:
Did you mention Rule 60B4 in your brief?

[00:20:39] Speaker 04:
I believe we did.

[00:20:40] Speaker 04:
Yes, we did.

[00:20:41] Speaker 04:
Where?

[00:20:50] Speaker 03:
Page 48, Your Honor.

[00:21:05] Speaker 04:
The judgment was void for supposed lack of standing.

[00:21:08] Speaker 04:
Yes, Your Honor, that's a Rule 60B4 motion.

[00:21:11] Speaker 04:
Yeah, but what case says that you could attack a standing determination that had been made on the ground that you want to re-litigate what was resolved earlier?

[00:21:21] Speaker 04:
I don't understand that 60B4 is directed to that kind of situation, nor do you, since you say it wouldn't have succeeded.

[00:21:28] Speaker 03:
We say that the case would succeed under any circumstance.

[00:21:31] Speaker 03:
They brought it to his attention and said we want discovery to see if Dr. Soares, in fact, was inconsistent in any way,

[00:21:39] Speaker 03:
We don't think that would have succeeded.

[00:21:41] Speaker 03:
We don't think any mechanism that they could have succeeded.

[00:21:44] Speaker 04:
So it sounds as though the only way they could succeed is by filing independent action.

[00:21:49] Speaker 03:
We said they wouldn't succeed in that either.

[00:21:51] Speaker 03:
In fact, that's what the district court found.

[00:21:52] Speaker 03:
They said there was no basis for them to do anything here because they didn't have any grounds to attack the judgment in any way.

[00:22:01] Speaker 03:
I mean, the district court, for example, did not just find, as counsel submits, that

[00:22:06] Speaker 03:
This was an extreme action.

[00:22:07] Speaker 03:
What the district court did is it looked at octane fitness and said you're supposed to look at the governing law and then compare that to the proofs that are put in.

[00:22:17] Speaker 04:
Let's suppose hypothetically that we agree with you that there are grounds here, lack of plausibility, which might have supported the award of attorney's fees, but that his reliance on this less inflammatory way

[00:22:32] Speaker 04:
supposedly available to them was wrong.

[00:22:36] Speaker 04:
What should we do?

[00:22:37] Speaker 03:
Well, Your Honor, that wouldn't make any difference.

[00:22:39] Speaker 03:
He relied on that, I understand, for saying that you litigated in an unreasonable manner.

[00:22:45] Speaker 03:
He also found that claims were exceptionally weak, and that was based on his analysis saying, Your Honor has pointed out, he found that you have a very high burden, great miscarriage of justice, and that with respect to, for example, infringement,

[00:22:58] Speaker 03:
He said that it was not material to anything.

[00:23:01] Speaker 03:
So even if there had been testimony by Dr. Soares in Canada that was inconsistent, that went to something called TREP, which had nothing to do with any live issue in the US proceeding.

[00:23:11] Speaker 03:
It had to do with something called weight percent.

[00:23:14] Speaker 03:
It did not have anything to do with the heterogeneity that Dr. Soares did.

[00:23:19] Speaker 04:
But I guess my question is if he relied on something which was wrong,

[00:23:24] Speaker 04:
and suggesting that there was an inappropriate way of litigating this by filing the independent action instead of doing something else.

[00:23:33] Speaker 04:
Who knows what that might have been.

[00:23:34] Speaker 04:
Do we have to send it back to him to have him reconsider putting out of his mind the inappropriate consideration?

[00:23:45] Speaker 03:
No, Your Honor, because he had two grounds for finding that the case was exceptional.

[00:23:49] Speaker 03:
Blocking fitness says you can find it either because the claims are exceptionally weak.

[00:23:53] Speaker 04:
How do we know those are independent grounds?

[00:23:57] Speaker 04:
Does he say they're independent grounds?

[00:23:59] Speaker 03:
Well, he says that he finds that both are present here and that octane fitness says it's either... Yeah, but it also says totality of the circumstances.

[00:24:08] Speaker 03:
Octane fitness says that you can find an exceptional case if you find that the case stands out with respect to others on the subsequent strength of litigating position or the unreasonable manner in which the case was litigated.

[00:24:21] Speaker 03:
So you don't have to find both.

[00:24:22] Speaker 01:
And we know that he did that because on page 12, he says, in particular, the court finds this case is exceptional, both in the substantive strength of Noah's litigating position and in the manner in which the case was litigated.

[00:24:35] Speaker 01:
That's right, Your Honor.

[00:24:37] Speaker 03:
So if that's the case, if he made something that Your Honor feels that made a statement that Your Honor feels is incorrect with respect to the ability to

[00:24:46] Speaker 03:
brought about this alleged inconsistency to his attention.

[00:24:50] Speaker 03:
That does not impact the fact that he found that the case was exceptionally weak when you compare grave miscarriage of justice as a standard and acting fitness as you look at the governing law for the claim, and the fact that they basically had zero evidence to support them.

[00:25:04] Speaker 03:
None of the former judges, by the way, addressed the fact that the alleged inconsistent testimony didn't even go to initiatives live in the original case.

[00:25:14] Speaker 03:
None of them addressed that.

[00:25:15] Speaker 04:
Judge Stark found that in fact... Well, that has to do with the plausibility thing.

[00:25:20] Speaker 04:
He made a plausibility finding.

[00:25:22] Speaker 04:
Right.

[00:25:23] Speaker 03:
Well, it goes to the materiality, Your Honor.

[00:25:24] Speaker 03:
So if you're looking to see if it's exceptionally weak, and you say that basically the evidence you're pointing to has zero relevance to the original judgment, then you have a high standard, grave miscarriage, and you have something that's given zero weight.

[00:25:36] Speaker 03:
So that's zero basis for making the claim, which means it is exceptionally weak.

[00:25:41] Speaker 03:
In addition, the district court

[00:25:43] Speaker 03:
found that with respect to standing, that nothing that they alleged showed that there was a Schedule A that was ever in existence that would have transferred the patents.

[00:25:52] Speaker 03:
And this came to a head at the hearing on the motion to dismiss, where the district court said after there were three iterations of what Nova contended was the relevance of the Venezuela testimony from the other case.

[00:26:07] Speaker 03:
At first, they said that it should reinterpret the capture.

[00:26:11] Speaker 03:
reinterpret the agreement based on extrinsic evidence.

[00:26:13] Speaker 03:
And we pointed out, we can't do that.

[00:26:15] Speaker 03:
Then they filed an amended complaint.

[00:26:17] Speaker 03:
And they said, well, the extrinsic evidence from the other case shows that Schedule B supplement really isn't the Schedule A. And we pointed out that Valenzuela's testimony did not support that because he said nothing about the schedule.

[00:26:30] Speaker 03:
But more importantly, the unambiguous interpretation that your honors gave in the original Dow 1 case and the lower court was that the contract was unambiguous.

[00:26:40] Speaker 03:
So no extrinsic evidence.

[00:26:41] Speaker 03:
And it did not transfer any patents unless and until the patent showed up on a Schedule A. And there was no dispute that Dow owned the patents at the time they issued.

[00:26:51] Speaker 03:
So the district court said, since you are not challenging the interpretation of the contract, the only way you could prevail is if you can prove that the Schedule A you just showed and the Schedule D you are showing are the operative ones.

[00:27:04] Speaker 03:
And counsel Froenova said, exactly right.

[00:27:07] Speaker 03:
This was at the hearing because the district court

[00:27:09] Speaker 03:
noted their shifting positions.

[00:27:10] Speaker 03:
And we showed that the Schedule A they were relying on was from 2009.

[00:27:14] Speaker 03:
And it could not control at the time the case was filed in 2005.

[00:27:20] Speaker 03:
And moreover, they had pled in their amendment complaint that that Schedule A from 2009 was not the operative one.

[00:27:26] Speaker 03:
So under all the theories that they presented, three of them, on this standing issue, the judge found there's no plausibility whatsoever.

[00:27:33] Speaker 03:
It's zero relevance again.

[00:27:35] Speaker 03:
The court was well within its discretion, which is what we're talking about here.

[00:27:39] Speaker 03:
to find that the case was exceptionally weak with respect to both infringement, because it was completely immaterial, and with respect to standing, because the testimony didn't go to the ultimate issue that the other side conceded, is that they had to show there was a Schedule A that existed in 2005 that transferred the past.

[00:27:57] Speaker 03:
And all they could rely on and all they presented to the court at the argument was a 2009 Schedule A that they agreed was not the operative one.

[00:28:04] Speaker 03:
And in fact, it didn't transfer any of the past in suit.

[00:28:07] Speaker 03:
So Your Honor, I would say that if you thought there was a problem with the statement about the fact that there were less inflammatory ways to approach this, then you can still affirm completely based on the fact that the district court, in its discretion, it lived through the case, found that the case was exceptionally weak under Optane Fitness.

[00:28:27] Speaker 03:
And I would also say, Your Honor, I would ask you to consider that these were career ending allegations.

[00:28:32] Speaker 03:
And I do believe there are other ways to brought to people's attention before you make allegations like that.

[00:28:37] Speaker 01:
Thank you.

[00:28:45] Speaker 00:
I'll be brief.

[00:28:49] Speaker 00:
First of all, we couldn't have taken discovery.

[00:28:52] Speaker 00:
The case was over.

[00:28:54] Speaker 00:
There was no case.

[00:28:55] Speaker 00:
They suggested we could have filed a 60D4 motion or a case.

[00:28:59] Speaker 00:
Indeed, they mentioned that and they followed it with the words, we would have lost.

[00:29:04] Speaker 00:
And we would have lost then to 61B2 and 3 because it was a time bar.

[00:29:08] Speaker 00:
The only option we had was 60D3, the fraud action.

[00:29:13] Speaker 04:
Well, suppose we agree with you on that and that the district court made a mistake.

[00:29:18] Speaker 04:
in relying on the supposed impropriety of filing an independent action without seeking alternative mechanisms.

[00:29:29] Speaker 04:
Suppose we agree with you on that.

[00:29:31] Speaker 04:
Do we have to reverse here or remand in light of the fact that he found a lack of plausibility as well as finding that the manner in which the case was litigated was problematic?

[00:29:48] Speaker 00:
I think there are two questions here.

[00:29:50] Speaker 00:
One is whether you have to reverse or remand and then tied to your specific questions.

[00:29:56] Speaker 00:
My point is that this case was poisoned by the district court's failure to compare the independent action filed by Nova to another independent action.

[00:30:07] Speaker 00:
It was poisoned by that.

[00:30:08] Speaker 00:
It was further poisoned.

[00:30:10] Speaker 04:
I'm trying to give you a hypothetical that assumes you lose on that.

[00:30:15] Speaker 04:
We find that his finding of lack of plausibility was sustainable.

[00:30:21] Speaker 04:
We find that he didn't make any other errors.

[00:30:23] Speaker 04:
The only error in the district court opinion on this hypothetical is that the district court said that there are other ways of approaching this that you should have followed, and that's not correct.

[00:30:34] Speaker 04:
Suppose we find that one error.

[00:30:37] Speaker 04:
What do we do?

[00:30:42] Speaker 00:
If built into your question is that you're not finding

[00:30:46] Speaker 00:
that the district court compared the action to the wrong action and you're also not finding that using the three judges' declarations against us rather than for us, assuming you're not finding any of that and you're only finding that the finding was plausible and the district court said we could have come in first.

[00:31:07] Speaker 04:
We made an error in the inflammatory finding.

[00:31:12] Speaker 00:
What do we do?

[00:31:15] Speaker 00:
You know, my case here today is based on the totality of circumstances.

[00:31:21] Speaker 00:
And so what I'm suggesting is that we have multiple pressure points here.

[00:31:29] Speaker 00:
And I'm suggesting that all those pressure points affected what the district court did.

[00:31:33] Speaker 00:
If you don't find half of what I'm arguing, if you don't find that the district court compared it to the wrong kind of action, if you don't find that the district court

[00:31:45] Speaker 00:
improperly and inexplicably used the three judges' declarations against us after finding that they were an extraordinary effort to make sure that we did the right thing.

[00:31:56] Speaker 00:
If you don't find those things, we have a different case.

[00:31:59] Speaker 00:
And so I'm not sure how to answer your final question, other than the fact that it is our position that you should not remand, that you should reverse, because it was Dow's obligation

[00:32:13] Speaker 00:
to compare this action to another independent action.

[00:32:17] Speaker 00:
Neither they did it, nor did the district court do it.

[00:32:20] Speaker 00:
And I'm suggesting that under those circumstances, there should be reversal, not a remand.

[00:32:26] Speaker 00:
Now, beyond that, they made a couple of points about what I said at the oral argument about the 2009 Schedule A. What Mr. Nimrod has failed to mention

[00:32:41] Speaker 00:
is at the end of that discussion, I pointed out expressly, I said, the problem in this case is that all of these schedules are post-2005 filing of suit.

[00:32:52] Speaker 00:
They're all post-2005.

[00:32:54] Speaker 00:
If one is bad, they're all bad.

[00:32:57] Speaker 00:
That was the essence of the point that I made.

[00:33:01] Speaker 00:
I think you've exceeded your time.

[00:33:03] Speaker 00:
Thank you.

[00:33:04] Speaker 00:
We thank both sides in the case.