[00:00:00] Speaker 00:
Proceeded, please.

[00:00:05] Speaker 00:
Good morning, ladies and gentlemen.

[00:00:07] Speaker 00:
We have four cases before the court today, the last of which is an appeal from the Merit System Protection Board and is being submitted on the briefs.

[00:00:17] Speaker 00:
The other three are all patent cases.

[00:00:21] Speaker 00:
The first patent case is University of Utah versus Max Planck.

[00:00:28] Speaker 00:
Is that how I pronounce that?

[00:00:29] Speaker 00:
Yes.

[00:00:30] Speaker 00:
I'm not going to even try it, the third.

[00:00:32] Speaker 00:
portion of the name.

[00:00:34] Speaker 00:
I'll let you tell me when you get up.

[00:00:37] Speaker 00:
That is an appeal from the District of Massachusetts relating to a determination under Section 285.

[00:00:45] Speaker 00:
Mr. Chu, you want to reserve how much for a rebuttal?

[00:00:51] Speaker 01:
Seven minutes, Your Honor.

[00:00:53] Speaker 00:
Seven minutes, okay.

[00:00:55] Speaker 00:
All right, you may begin.

[00:00:58] Speaker 01:
May it please the court, Morgan Chu, on behalf of Max Planck, Gesellschaft, MIT, the Whitehead Institute for Biomedical Research, Alnylam, and representatives of the University of Massachusetts.

[00:01:17] Speaker 01:
There were two claims in this case.

[00:01:21] Speaker 01:
A district court that mistakenly applies the law

[00:01:28] Speaker 01:
is effectively committing an abuse of discretion under a whole host of cases.

[00:01:35] Speaker 01:
And that's what occurred here.

[00:01:37] Speaker 01:
Let me take the sole inventorship claim first.

[00:01:40] Speaker 04:
You argue that the district court here did not evaluate the substantive strength of the University of Utah's claims.

[00:01:49] Speaker 04:
But Octane Fitness doesn't

[00:01:51] Speaker 04:
It specifically says there's no precise formula for evaluating what's an exceptional case.

[00:02:01] Speaker 04:
So it's discretionary.

[00:02:04] Speaker 01:
So first of all, what I believe Octane Fitness actually says, it's just before Note 6, probably in the S cut version, 1756, that fees should be awarded in a case that stands out

[00:02:20] Speaker 01:
from others, and it goes on in the same sentence, considering the substantive strength of the case.

[00:02:29] Speaker 01:
So let me go to the sole inventorship analysis of the court.

[00:02:34] Speaker 00:
Let me ask you a question, though.

[00:02:35] Speaker 00:
Even if the sole inventorship claim

[00:02:38] Speaker 00:
either shouldn't have been asserted or should have been removed sooner, what impact did that claim have on the rest of the discovery or the rest of the case?

[00:02:47] Speaker 00:
I mean, the joint inventorship claim, which she found to be not frivolous, and we can talk about that in a minute, the discovery would have been identical with respect to that as it would be with respect to the sole inventorship claim, wouldn't it?

[00:03:01] Speaker 01:
So it's a good question or a set of questions.

[00:03:05] Speaker 01:
First of all, this was a claim

[00:03:08] Speaker 01:
that was pressed over four years, the complaint, the First Amendment, Second Amendment, and Third Amendment complaint.

[00:03:14] Speaker 01:
It was dropped on the eve of the filing a summary judgment motion.

[00:03:18] Speaker 01:
Here's the practical impact.

[00:03:21] Speaker 01:
There's a world of difference if someone is going to be a sole inventor and have all ownership rights as opposed to a joint inventor from which a whole host of other rights might flow

[00:03:36] Speaker 01:
But it's vastly different.

[00:03:39] Speaker 01:
There was a $750 million claim being made by Utah.

[00:03:45] Speaker 01:
It was premised principally on the sole inventorship.

[00:03:49] Speaker 01:
It was the huge motivation for the four years of hard-fought litigation.

[00:03:55] Speaker 01:
And on that sole inventorship claim, what the court said was only.

[00:04:01] Speaker 01:
It was dropped, and therefore I'm not awarding fees.

[00:04:04] Speaker 01:
That doesn't address

[00:04:06] Speaker 01:
what Octane Fitness told us, which was to look at the substantive strength.

[00:04:12] Speaker 01:
And then it mentions a number of factors, such as whether it was frivolous, whether or not there was subjective reasonableness.

[00:04:20] Speaker 00:
What it said is, among other factors, you can consider the substantive strength.

[00:04:25] Speaker 00:
It went out of its way to say that that was not determinative.

[00:04:29] Speaker 01:
I agree.

[00:04:30] Speaker 01:
I agree.

[00:04:31] Speaker 01:
And if it was dropped,

[00:04:33] Speaker 01:
in the first three months or six months or nine months of the litigation?

[00:04:37] Speaker 01:
That would be one thing.

[00:04:38] Speaker 04:
But that's your problem.

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And it's a flavor of problem.

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It's the same problem in Rule 11 and Section 1927.

[00:04:47] Speaker 04:
In all those kinds of cases, district courts sitting there on the spot saying, and I'm looking at the totalitarian circumstances, and yeah, there's

[00:05:01] Speaker 04:
I mean, look, there's obviously some fiddling going on in this case.

[00:05:05] Speaker 04:
But who knows what, when, and when do the lawyers really get to the point of saying, oh, OK, now we focused.

[00:05:15] Speaker 04:
We're going to lose.

[00:05:16] Speaker 04:
We dropped this.

[00:05:17] Speaker 04:
I mean, as a trial judge, I'd have people come in just before trial, drop their claims.

[00:05:22] Speaker 01:
I appreciate that members of this panel have been on the firing line as a trial judge.

[00:05:27] Speaker 01:
But here are the core facts which does make this stand out.

[00:05:31] Speaker 01:
All of the charging allegations from the original complaint through the third amended complaint were in the possession of Utah's knowledge, because they're all based on what Dr. Bass did, said, what meetings she had, whether or not she collaborated with Dr. Tuschel, Dr. Elberschar, or Mr. Lendeckl.

[00:05:52] Speaker 01:
Well, the facts is they came out were completely at odds

[00:06:00] Speaker 01:
from the allegations in the four pleadings filed by Utah.

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So one would normally expect that Utah or its counsel would interview Dr. Bass.

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And if they didn't interview Dr. Bass, in advance of making those allegations, not once, but four times, there's something wrong.

[00:06:20] Speaker 00:
Isn't it true that the trial counsel that was involved on the second or third amended complaint

[00:06:29] Speaker 00:
actually inherited the First Amendment complaint, I mean, the first complaint from the original counsel?

[00:06:35] Speaker 01:
So the answer is yes, but, and this is an important but, we're not trying to separate out who was at fault.

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The question is the allocation of fees between Utah and Utah or its representatives plainly were at fault.

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at a much earlier time than when the allegations were dropped.

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Utah's continuing counsel had to have known the allegations were false, not only because of Dr. Bass's own testimony, but their own expert witness contradicted the major charging allegations.

[00:07:14] Speaker 01:
So two witnesses, one key fact witness for Utah, one key expert, neither of them supported the charging allegations in a $750 million case.

[00:07:25] Speaker 00:
Well, I still don't.

[00:07:26] Speaker 00:
I mean, I get your claim that, well, they couldn't possibly have hoped for that kind of damage award, barring success on the soul and better ship.

[00:07:36] Speaker 00:
But you still haven't completely answered my question whether it would have altered the scope of discovery.

[00:07:42] Speaker 00:
It's pretty clear that the discovery was what it was as it relates to the interaction between these two purported inventors.

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And that Dr. Bass, I mean the court made very specific findings about her contributions and

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And there's no question that she was a legitimate scientist who shared information regarding this invention.

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So we're going to have to probe into that as it relates to the joint inventorship cream, correct?

[00:08:15] Speaker 01:
So let me take the way the question was originally framed, and it's the same question at the end.

[00:08:23] Speaker 01:
Would discovery have been different?

[00:08:24] Speaker 01:
The answer is yes.

[00:08:26] Speaker 01:
I wouldn't be, Council would not be doing a decent job as Council if one litigated a case that was worth, I'll say hypothetically, $100,000 versus a $750 million case.

[00:08:42] Speaker 01:
So that needs to be taken into consideration.

[00:08:46] Speaker 01:
Now, I would agree with one aspect.

[00:08:49] Speaker 01:
Would we still have taken Dr. Bass's deposition?

[00:08:52] Speaker 01:
Yes.

[00:08:53] Speaker 01:
But many other depositions, many other motions to compel, and other things might not have been done if this was a much smaller case.

[00:09:01] Speaker 01:
Come on.

[00:09:02] Speaker 04:
In this kind of litigation, and with the kind of representation that Max Planck retained, you can expect a full airing of the facts.

[00:09:17] Speaker 04:
I practiced for 20 years too, and that's how big firm

[00:09:23] Speaker 04:
litigators approach it and if the defendant hires a big firm to defend him, they expect that they'll get a full representation.

[00:09:34] Speaker 04:
Really, come on.

[00:09:36] Speaker 01:
Well, I respect your honor's point of view, but in today's world and yesterday's world, when I first started practicing law, including that world, clients do care about

[00:09:51] Speaker 01:
the potential liability, the size of the case.

[00:09:54] Speaker 01:
There were also vast differences in discarding.

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I'll just give you one example.

[00:09:59] Speaker 04:
But intellectual reputations matter, too, to universities.

[00:10:04] Speaker 04:
And they, like newspapers, will defend more than just based on bottom line.

[00:10:11] Speaker 01:
I agree with that.

[00:10:12] Speaker 01:
Let me make one point about the joint inventorship, where the district court did engage in more of an analysis.

[00:10:21] Speaker 01:
But if one looks at it with some care, and one looks, and I'm thinking in particular at the heart of the analysis, which is page four of the joint appendix, so it's page four of the district court's opinion, she concludes that the record supported the claims, that the mini review supported the claims.

[00:10:46] Speaker 01:
Now let's think about that.

[00:10:47] Speaker 01:
The mini review itself.

[00:10:50] Speaker 01:
was a piece of prior art.

[00:10:52] Speaker 01:
There was a three-week period, which I'll address in a second.

[00:10:56] Speaker 01:
It cannot be the case that a piece of prior art by itself would allow someone to make a joint inventorship claim.

[00:11:03] Speaker 01:
Otherwise, all of science and all of patent law would be turned on its head because every advance in science is built on all the work that came before.

[00:11:14] Speaker 01:
So let me look at that three-week period.

[00:11:16] Speaker 01:
Their expert agrees.

[00:11:19] Speaker 01:
that there was nothing done, zero, by Dr. Tuschel, who received a courtesy copy of the mini-review during that three-week period.

[00:11:31] Speaker 01:
Months later, he was doing experiments, and their expert testified.

[00:11:36] Speaker 01:
He was doing his own research.

[00:11:37] Speaker 01:
He wasn't using anything from Dr. Bass's mini-review, and he tested many different structures, many different possibilities.

[00:11:45] Speaker 01:
So their own expert witness agrees.

[00:11:48] Speaker 01:
that there was no learning from the mini review.

[00:11:52] Speaker 01:
So although the district court does list some factors, in fact, looking at the record, it's not supported by the conclusion.

[00:12:03] Speaker 00:
So the district court made some specific findings with respect to

[00:12:08] Speaker 00:
to Dr. Bass.

[00:12:09] Speaker 00:
She said, when all reasonable inferences are drawn in favor of Utah, the evidence supports Utah's theory that Tuschel incorporated Bass's hypothesis regarding the three prime overhang into his research, that her prediction was a significant contribution to the ultimate patented invention, and that this contribution was corroborated by existing documentation.

[00:12:28] Speaker 00:
And then she said, ultimately, the only question is whether their interaction constituted sufficient collaboration.

[00:12:35] Speaker 00:
And she concluded it didn't.

[00:12:37] Speaker 01:
Let me address that, but I do want to save some time for rebuttal.

[00:12:41] Speaker 01:
If you look at the actual claims, and in the joint appendix, there's a good example.

[00:12:45] Speaker 01:
It's claim one from the 968 patent, and it's page 4054.

[00:12:49] Speaker 01:
In that claim, as with the other claims, are synthetic creations, because it says plainly that it's non-enzymatically cleaved.

[00:13:04] Speaker 01:
That's page 4054 of the joint appendix.

[00:13:07] Speaker 01:
What Dr. Bass did was she speculated that in nature, a naturally occurring enzyme, for shorthand cold dicer in the pages, was causing some cleavage.

[00:13:19] Speaker 00:
I get all this, but what you're saying then is you're not just asking us to review the 285 determination.

[00:13:24] Speaker 00:
You're asking us to go behind the summary judgment analysis and actually reject findings of fact made by the trial court.

[00:13:35] Speaker 00:
That's a big leap, isn't it?

[00:13:38] Speaker 01:
So what I think we're both referring to is her order denying the motion for attorney's fees.

[00:13:46] Speaker 01:
So she grants summary judgment, and then there's another person.

[00:13:49] Speaker 00:
Well, I'm quoting from the summary judgment order.

[00:13:53] Speaker 00:
In other words, you're saying that her underlying factual findings in the summary judgment order, you don't think were supported by the record.

[00:14:00] Speaker 01:
No.

[00:14:02] Speaker 01:
Of course, we were in favor of the grant of summary judgment.

[00:14:05] Speaker 01:
And maybe I misheard your honor, but I thought you might have been reading from her.

[00:14:10] Speaker 00:
I'm reading from the summary.

[00:14:12] Speaker 00:
In other words, she said that most of the factors go in favor of Utah on summary judgment.

[00:14:18] Speaker 00:
There's only one factor that I have to analyze, and that's collaboration.

[00:14:21] Speaker 00:
And that's where you ultimately won and Utah lost.

[00:14:24] Speaker 01:
So let me address that in particular, because collaboration is very important.

[00:14:30] Speaker 01:
It's a keystone for the joint inventorship.

[00:14:32] Speaker 01:
In all of the four sets of pleadings,

[00:14:35] Speaker 01:
There was an allegation of direct collaboration with Dr. El-Bashar and Len Deco.

[00:14:41] Speaker 01:
What's the record?

[00:14:42] Speaker 01:
Dr. Bass never communicated with them in any way, orally, by email, by smoke signals, or in any other way.

[00:14:49] Speaker 01:
Those allegations are completely false.

[00:14:51] Speaker 01:
She did have some communications with Dr. Tuchel.

[00:14:54] Speaker 01:
They would attend professional meetings.

[00:14:56] Speaker 01:
They would see each other.

[00:14:58] Speaker 01:
But in all of her testimony, none of it rose within a shouting distance of collaboration.

[00:15:05] Speaker 01:
That linchpin was missing.

[00:15:08] Speaker 01:
So thank you very much.

[00:15:09] Speaker 00:
All right.

[00:15:09] Speaker 00:
You used up almost all your rebuttal.

[00:15:11] Speaker 00:
I'll give you three minutes for rebuttal, and we'll add two minutes to the other side, if necessary.

[00:15:15] Speaker 01:
Thank you, Your Honor.

[00:15:22] Speaker 02:
May it please the court.

[00:15:23] Speaker 02:
My name is Mark Carlson.

[00:15:24] Speaker 02:
I'm with Hodges, Berman, Silver, and Shapiro.

[00:15:26] Speaker 02:
And we represent the University of Utah.

[00:15:30] Speaker 02:
I think the issue here is pretty straightforward.

[00:15:32] Speaker 02:
It's did the district court apply the correct law?

[00:15:35] Speaker 02:
And did the district court make factual findings that were not, that were not correct, clearly incorrect.

[00:15:44] Speaker 04:
And I think both of these- Ms.

[00:15:45] Speaker 04:
Plonk argues pretty darn extensively, and I believe persuasively, that there were allegations in the complaint that any reasonable counsel reviewing and talking to

[00:16:04] Speaker 04:
Dr. Bass would have known we were false.

[00:16:08] Speaker 04:
For example, what sticks in my mind is that dinner with Dr. Tucci, where Dr. Bass talked to Dr. Tuchel about her work at this Apsala, Sweden meeting.

[00:16:24] Speaker 04:
And in her deposition, she's asked, do you think that based on a single dinner conversation with Dr. Tuchel that the two of you were collaborating

[00:16:35] Speaker 04:
There was her answer.

[00:16:36] Speaker 04:
There was nothing in that conversation about the things that were questioned in the patents.

[00:16:42] Speaker 04:
And there was a lot more.

[00:16:44] Speaker 04:
But I find that disturbing, because any competent counsel writing a complaint talks to the prime witness.

[00:16:54] Speaker 02:
Yes, Your Honor.

[00:16:55] Speaker 02:
And we submitted evidence that we, in fact, did interview her.

[00:16:58] Speaker 02:
Let me address that comment.

[00:17:00] Speaker 02:
The deposition had

[00:17:03] Speaker 02:
Pages and pages.

[00:17:04] Speaker 04:
Of course I accept that you interviewed her.

[00:17:09] Speaker 02:
Yeah.

[00:17:09] Speaker 02:
But what I was going to say was that the deposition had pages and pages and pages of questions about what happened in that conversation in Uppsala.

[00:17:20] Speaker 02:
And the quote that Your Honor just gave me, I've got to confess, I don't know what she was saying.

[00:17:26] Speaker 02:
I don't know what she meant.

[00:17:28] Speaker 02:
When she said the things that were questioned in the patent, I don't know what she was talking

[00:17:33] Speaker 02:
But she did, in fact, testify quite clearly about the things that she did tell Dr. Tuschel.

[00:17:40] Speaker 02:
And what she told him was that she had just done a set of experiments which confirmed that RNAi does not occur in the absence of Dicer.

[00:17:51] Speaker 02:
She did this on the nematode worms she'd been studying for years, and this demonstrated that

[00:17:57] Speaker 02:
The molecule that mediates RNA AI is a product of Dicer.

[00:18:07] Speaker 00:
What took so long for your eyes to open with respect to the extent to which the sole inventorship claim was completely unsupportable?

[00:18:21] Speaker 02:
We did not regard the sole inventorship claim as completely unsupportable.

[00:18:26] Speaker 02:
What took so long was for us to dismiss the claim were several things.

[00:18:33] Speaker 02:
One is the fact that the two shall one patents had recently been allowed.

[00:18:40] Speaker 02:
And so we had to look at those.

[00:18:43] Speaker 02:
And many of the sole inventorship claims would have pertained to those.

[00:18:49] Speaker 02:
And we decided we didn't.

[00:18:50] Speaker 02:
want to assert them as to those.

[00:18:52] Speaker 00:
This is years of litigation, four different iterations of the complaint and you still haven't figured out from talking to Dr. Bass or otherwise that she didn't even consider herself to be the sole inventor of his inventions?

[00:19:07] Speaker 02:
Again, one has to be very clear about what claims you're talking about.

[00:19:10] Speaker 02:
When the court says these inventions, there are two sets of claims.

[00:19:14] Speaker 02:
One set of claims discusses or claims the synthesis of a DS RNA molecule of a certain length with three prime overhangs that mediates RNA.

[00:19:27] Speaker 03:
So if you did have faith in your argument, then why didn't you just let it run through course and let it

[00:19:33] Speaker 03:
let the judge rule on summary judgment on that issue.

[00:19:38] Speaker 02:
And we submitted a declaration.

[00:19:39] Speaker 03:
It seems to me like you made your own summary judgment determination and said, we don't have anything here.

[00:19:44] Speaker 02:
I agree that the timing is suggesting that because it happened to coincide.

[00:19:50] Speaker 03:
I think it's a very significant part of the fatality of the circumstances in this case.

[00:19:54] Speaker 02:
However, it's significant, Your Honor, that there were hundreds of claims that were of the variety I just described.

[00:20:02] Speaker 02:
That is, the claims that just claimed the molecule.

[00:20:06] Speaker 02:
Those are the sole inventorship claims.

[00:20:08] Speaker 02:
And those claims are predicated

[00:20:11] Speaker 02:
on the named inventors, Tuchel et al., not having made an inventive contribution to the claim.

[00:20:19] Speaker 02:
And we would have had to show to the jury for each of those claims

[00:20:23] Speaker 02:
that there was no inventive contribution by the Tuschel inventors.

[00:20:28] Speaker 02:
And we determined that that would be a nightmare, be a logistical nightmare trial, and that we could cut those because our damages theory didn't rely on the sole inventorship claim.

[00:20:42] Speaker 02:
We had the same damages theory, whether it was sole inventorship or joint inventorship.

[00:20:47] Speaker 02:
So it didn't matter that we had them, and it simplified the case.

[00:20:51] Speaker 00:
Okay, so let's go to that question, because let's assume I don't buy your argument that the sole inventorship claim was strong or at least even very viable.

[00:21:02] Speaker 00:
What is your response to Mr. Chu's argument that

[00:21:06] Speaker 00:
It was a fundamentally different case if it was a sole inventorship claim versus a joint inventorship claim.

[00:21:15] Speaker 02:
The theory of damages was that what drove the value of the patents was the desire on the part of Alnylam, Alnylam essentially controls the patents, to maintain exclusivity over RNAi technology.

[00:21:35] Speaker 02:
Whether or not it's sole inventorship or joint inventorship, they don't have exclusivity.

[00:21:41] Speaker 02:
The University of Utah could have run off and licensed anyone they wanted, and that would have been an issue.

[00:21:47] Speaker 02:
And what our damages expert went through was to examine another instance in which another entity was a joint inventor.

[00:22:00] Speaker 02:
and what they did to try and corral that joint inventor back into the group.

[00:22:08] Speaker 02:
It was University of Massachusetts that wanted to go its own way, do its own licensing, and El Nilam was prepared to pay them a very substantial sum of money in order to corral them and bring them back into the group, the co-licensing group.

[00:22:22] Speaker 02:
And it was that transaction that was the basis for the damages theory.

[00:22:29] Speaker 02:
And so it didn't matter whether it was sole or joint inventorship.

[00:22:34] Speaker 02:
The damages number would have been the same.

[00:22:37] Speaker 02:
So we could drop that claim and greatly simplify our case for trial by getting rid of the sole inventorship claim.

[00:22:44] Speaker 02:
And that is not something that distinguishes this case from any other case.

[00:22:49] Speaker 02:
That's a very important thing that trial lawyers do.

[00:22:52] Speaker 02:
before they go to trial.

[00:22:54] Speaker 02:
They prune and simplify the case for presentation to the juries.

[00:22:58] Speaker 02:
And that's very valuable to courts.

[00:23:00] Speaker 02:
And I think this court should tread very carefully in overriding the court's discretion on that, because district courts rely on courts of appeal.

[00:23:09] Speaker 02:
They're busy.

[00:23:10] Speaker 03:
I'm not sure that argument helps you, Counselor.

[00:23:13] Speaker 03:
I mean, it seems to me that if you start out a case, you have two separate theories

[00:23:20] Speaker 03:
and that are going to produce the same damages.

[00:23:25] Speaker 03:
Damages rest on two separate theories.

[00:23:28] Speaker 03:
And you jettison one of them right before summary judgment.

[00:23:33] Speaker 03:
Then I began to think whether this is an exceptional case, whether this is a type of analysis that should be done at the outset of the case.

[00:23:41] Speaker 03:
You took it.

[00:23:42] Speaker 03:
You're taking a risk, and you're saying, I'm going to play both sides of the coin.

[00:23:46] Speaker 03:
knowing that one may be counterfeit.

[00:23:51] Speaker 02:
Your Honor, Judge Raina, you may recall that we were up here once before.

[00:24:00] Speaker 02:
And Your Honor was on that panel.

[00:24:04] Speaker 02:
We filed this case.

[00:24:07] Speaker 02:
And there was a series of motions to dismiss.

[00:24:10] Speaker 02:
And the last of those was taken up on appeal.

[00:24:14] Speaker 02:
At the time, we had pending discovery requests.

[00:24:17] Speaker 02:
And the appellants sought a stay.

[00:24:21] Speaker 02:
And they got one.

[00:24:23] Speaker 02:
And so there was no discovery until after we'd gotten through the ruling here at the Federal Circuit, which affirmed the district court in our favor.

[00:24:32] Speaker 02:
And then we had to go to the Supreme Court.

[00:24:34] Speaker 02:
And we had a petition for writ of certiorari.

[00:24:38] Speaker 02:
And we had to fight that.

[00:24:39] Speaker 02:
And then finally, finally, and it was almost three years later, the case came back down for discovery.

[00:24:45] Speaker 02:
And it was after we got discovery that we learned about the University of Massachusetts trying to bolt from the group and do its own separate licensing and what Al Nilam had done to try and corral them back in in terms of paying them, offering them a license.

[00:25:03] Speaker 02:
And because of that,

[00:25:05] Speaker 02:
The damages theory, I think, came out differently than what we would have anticipated at the beginning.

[00:25:10] Speaker 02:
There are facts that we didn't know about and couldn't know about until the discovery state was lifted.

[00:25:15] Speaker 04:
I'm trying to follow your damages theory.

[00:25:19] Speaker 04:
And I fail to see how it's the same.

[00:25:21] Speaker 04:
I presume you had prevailed on sole inventorship.

[00:25:28] Speaker 04:
And then licensing was entirely in the possession of the University of Utah.

[00:25:33] Speaker 04:
Wouldn't that have been a more valuable asset?

[00:25:37] Speaker 02:
That is exactly what we thought at the time that we filed the complaint.

[00:25:40] Speaker 02:
And so we wanted to make sure that we had both theories, and we did.

[00:25:44] Speaker 02:
We asserted both theories.

[00:25:46] Speaker 02:
But it was after we got discovery, and when we found out what they had offered University of Massachusetts, it wouldn't have made a difference.

[00:25:57] Speaker 04:
They offered the University of Massachusetts the equivalent amount as if

[00:26:03] Speaker 04:
UMass owned the entire patent and could license it to the world?

[00:26:08] Speaker 02:
Is that what you're telling me?

[00:26:15] Speaker 02:
I'm not as familiar with how the analysis in that report went to answer that question exactly.

[00:26:24] Speaker 02:
I don't believe they offered the value of the patent to UMass in Massachusetts.

[00:26:31] Speaker 02:
I agree.

[00:26:32] Speaker 02:
So that answers the question.

[00:26:35] Speaker 02:
But the licensing number, the numbers that were offered at the University of Massachusetts were the ones that were used to derive the $750 million damages figure.

[00:26:45] Speaker 02:
That is what our expert used.

[00:26:47] Speaker 02:
And they were numbers that we didn't know about until we had discovery.

[00:26:51] Speaker 03:
Counselor, in Loctane Fitness, we said that there's no precise formula that we applied or that's applied in this case.

[00:27:00] Speaker 03:
but that a case that involves subjective bad faith or an exceptionally meritless claims.

[00:27:09] Speaker 03:
So in this case, the other side is saying that there was subjective bad faith, that some of the testimony was deceptive, that there was lying going on.

[00:27:25] Speaker 03:
What's your response to that?

[00:27:30] Speaker 02:
I don't take their argument to be, and perhaps I'm mistaken, but I don't take their argument to be that our witnesses lied.

[00:27:39] Speaker 02:
I think what they're actually saying is that Dr. Bass told the truth.

[00:27:44] Speaker 02:
I think what they're trying to say is that the lawyers lied.

[00:27:47] Speaker 04:
I agree.

[00:27:47] Speaker 04:
I think they're saying that the lawyers failed to either adequately understand.

[00:27:51] Speaker 04:
I don't think that Dr. Bass is shown to have lied.

[00:27:55] Speaker 04:
But I think the lawyers, they're arguing

[00:27:59] Speaker 04:
I believe it shows the lawyers failed to adequately conduct their investigation.

[00:28:05] Speaker 02:
That is how I read their argument.

[00:28:07] Speaker 02:
I think that's what they're arguing.

[00:28:10] Speaker 02:
Your Honor, let me address that.

[00:28:13] Speaker 02:
There was a large scatter shot of allegations that are attacked here.

[00:28:18] Speaker 02:
We have tried to show that they are not playing fair, that they either snippeted out portions of deposition testimony or snippeted out allegations, but they presented this in a way where actually the testimony does not refute the allegation.

[00:28:37] Speaker 02:
We've got tables.

[00:28:39] Speaker 02:
that we presented that we tried to show that.

[00:28:42] Speaker 02:
One point that's significant is that it is not unusual in a case where you file a complaint, and it has allegations in it, and then you take discovery, and the facts, as they develop, don't necessarily support every single allegation in the complaint.

[00:29:05] Speaker 02:
And that may or may not be fatal to the complaint,

[00:29:08] Speaker 04:
And if it is, it may be fatal to a particular cause of action.

[00:29:12] Speaker 04:
It may be fatal to an allegation and a cause of action.

[00:29:15] Speaker 04:
But at that point, ethical counsel sits down with opposing counsel and says, OK, this is irrefutable.

[00:29:26] Speaker 04:
We're withdrawing either that paragraph or that claim or whatever.

[00:29:33] Speaker 02:
If it were irrefutable, certainly.

[00:29:36] Speaker 02:
If it were irrefutable, certainly.

[00:29:38] Speaker 04:
There's a lot of admissions.

[00:29:39] Speaker 04:
There's a lot of admissions in Dr. Best's testimony.

[00:29:43] Speaker 02:
Those have to be looked at in the context, first of all, of the questions that were asked, right?

[00:29:49] Speaker 02:
Because they were leading questions.

[00:29:51] Speaker 02:
It's cross-examination counseling.

[00:29:54] Speaker 02:
I'm not objecting to that, but often they will quote the answer without quoting the question.

[00:30:00] Speaker 02:
And when you go back and you look at the question, it doesn't refute the allegation.

[00:30:05] Speaker 02:
What Keene didn't repeat there.

[00:30:07] Speaker 02:
But more importantly, she had a lot of testimony.

[00:30:11] Speaker 02:
They asked these questions again and again and again.

[00:30:13] Speaker 02:
And most of her testimony was perfectly consistent with the facts that we relied on from the complaint to support the concept of action.

[00:30:22] Speaker 04:
So all these actions, in the red grid, all the questions in this table aren't actually the questions that were asked?

[00:30:30] Speaker 02:
Either the allegations, in many instances,

[00:30:35] Speaker 02:
have been edited.

[00:30:37] Speaker 02:
Parts have been left out.

[00:30:39] Speaker 02:
Brackets have been inserted to insert language.

[00:30:42] Speaker 02:
They've been edited in a way that they don't represent what we said in the complaint.

[00:30:47] Speaker 02:
They omit material information.

[00:30:49] Speaker 02:
And so it doesn't correspond to what we said.

[00:30:53] Speaker 02:
And in the quotations of the deposition, they picked parts that they liked which may or may not correspond with the allegation because of what the question was.

[00:31:03] Speaker 02:
or what the series of questions were that preceded it that provided context.

[00:31:07] Speaker 02:
And they don't provide that.

[00:31:09] Speaker 02:
It is in much of the appendix.

[00:31:12] Speaker 02:
So if you look at what they cite and then look at the series of questions and answers that preceded, the court will see that frequently she is perfectly consistent with what we alleged in the complaint for the parts that we relied on.

[00:31:30] Speaker 00:
All right.

[00:31:31] Speaker 00:
Your time is up.

[00:31:32] Speaker 00:
Thank you.

[00:31:32] Speaker 00:
Three minutes, Mr. Chair.

[00:31:36] Speaker 01:
Two points.

[00:31:37] Speaker 01:
First, it's a claim by claim analysis.

[00:31:41] Speaker 01:
So it would be proper to award attorney's fees for one claim and deny it for another claim.

[00:31:48] Speaker 01:
That's the law before Octane Fitness and Highmark.

[00:31:52] Speaker 00:
But not if the activities are essentially inseparable.

[00:31:56] Speaker 00:
You've got a trial judge who lived with this case for years.

[00:32:01] Speaker 00:
You're the one who chose to take an interlocutory appeal on a denial of a motion to dismiss and to stay all discovery that would have brought all this out a lot sooner.

[00:32:12] Speaker 00:
So the trial judge is down there, and she's living with this case.

[00:32:15] Speaker 00:
She understands.

[00:32:17] Speaker 00:
the delays, she understands the extent to which the discovery impacted the analysis of the damages.

[00:32:26] Speaker 00:
Why shouldn't we say that it was her call ultimately?

[00:32:31] Speaker 01:
So there's nothing on the record to say that all of the activities would have been the same.

[00:32:38] Speaker 01:
I did answer the court's question about whether they would be different.

[00:32:41] Speaker 01:
If the court sends it back to the district court, the district judge would be in a position to determine whether the activities would have, in fact, been the same for a $750 million case.

[00:32:53] Speaker 00:
So you want to spend more money to have the district court come out the same way?

[00:32:56] Speaker 01:
Well, since I have client representatives in the court room, I definitely don't want to spend more money.

[00:33:02] Speaker 01:
But we do want it to be done right.

[00:33:06] Speaker 04:
How long after the Supreme Court denied cert and discovery open

[00:33:15] Speaker 04:
and the resulting assessment.

[00:33:18] Speaker 01:
So this court decided in August 2013 the jurisdictional issue.

[00:33:25] Speaker 01:
I think it was by November 2013 that cert was denied, although I'm not absolutely positive.

[00:33:33] Speaker 01:
It was more than a year later that the third amended complaint, with all the same false allegations, was filed in this case.

[00:33:42] Speaker 01:
Thank you, Your Honor.

[00:33:43] Speaker 03:
But can I ask a question?

[00:33:45] Speaker 03:
When you say false allegations, do you really mean that false meaning subjectively deception?

[00:33:52] Speaker 03:
Are you saying that counsel or try to deceive the court?

[00:33:59] Speaker 03:
Is there bad faith practiced over court?

[00:34:02] Speaker 01:
So I obviously don't know what was in another human being's mind, but I do know this.

[00:34:08] Speaker 01:
I do know exactly what the allegations were and maintained through four pleadings.

[00:34:13] Speaker 01:
I know exactly what Dr. Bass said.

[00:34:16] Speaker 01:
I know exactly what their experts said.

[00:34:19] Speaker 01:
So they were untrue.

[00:34:21] Speaker 01:
And I assume that proper interviews were conducted.

[00:34:25] Speaker 01:
And if they were conducted, then they would be false.

[00:34:28] Speaker 01:
If proper interviews were not conducted, it's still a problem for Utah, because they shouldn't have filed the complaints.

[00:34:36] Speaker 01:
Thank you.

[00:34:44] Speaker 00:
All right, thank you.

[00:34:45] Speaker 00:
That case will be submitted.