[00:00:00] Speaker 00:
Penta 16-2272, voter verified versus premier election solutions.

[00:00:59] Speaker 00:
I think we're ready, sir, whenever you're ready.

[00:01:03] Speaker ?:
Thank you.

[00:01:06] Speaker 04:
May it please the court.

[00:01:07] Speaker 04:
My name is Anthony Provatola.

[00:01:10] Speaker 04:
I represent Voter Verified Incorporated with regard to this appeal, which is essentially one taken from the district court on the matter of Rule 60B motion for relief from final judgment.

[00:01:28] Speaker 04:
Um, the final judgment that we're dealing with in this case was one that was, um, entered, um, uh, upon a summary judgment that was by, um, uh, basically, uh, under the ruling of Muni auction versus, um, I forget the name of the other parties, um, which is the Muni auction doctrine requiring, um,

[00:01:57] Speaker 04:
a relationship of either agency or contractual relationship among parties who are practicing a method patent or process patent.

[00:02:13] Speaker 04:
And the challenge to the court here was, I guess the basic challenge to the court was the fact that Judge Mendoza did not, he was not the original judge on the case, it was Judge Fossett.

[00:02:28] Speaker 04:
Faucette, I guess it's pronounced.

[00:02:31] Speaker 04:
And one of the things that he states in his order was he was sort of like fixated on the fact that they had to look through the entire record in order to learn what had occurred.

[00:02:49] Speaker 04:
Judge Faucette is still on the bench, but she elected not to participate in response to this motion.

[00:02:56] Speaker 04:
They later hit his doorstep, and so apparently he found their owners.

[00:03:02] Speaker 00:
There's no dispute, is there, that the standard here is an abuse of discretion?

[00:03:06] Speaker 00:
Yes, it is.

[00:03:07] Speaker 00:
That is the standard.

[00:03:07] Speaker 00:
So can you just kind of focus in on how or where the abuse of discretion exists?

[00:03:14] Speaker 04:
Yes, of course, Your Honor.

[00:03:16] Speaker 04:
That is very, very important.

[00:03:18] Speaker 04:
To begin with, the judge denied that there was any change in the law.

[00:03:23] Speaker 04:
uh... in with respect to the uh... issue of muny auction uh... the uh... uh... one of the things that he specifically stated in his order was that there was no change in the law and uh... the law remain the same and uh... he went on to cite different uh... selected portions of uh... of uh... of uh... the opinions uh... to uh... enforce that now going to the fact that

[00:03:53] Speaker 04:
That is clearly something which is an error of law.

[00:04:01] Speaker 00:
Well, I thought that at least on the 60B6 motion, I have a quote here listed that the district court said something more than a mere change of the law is necessary to provide grounds for 60B6.

[00:04:13] Speaker 00:
That's right.

[00:04:14] Speaker 00:
So that suggests that they accepted that arguably there was a change in the law.

[00:04:19] Speaker 00:
And they said even notwithstanding the change in the law,

[00:04:22] Speaker 00:
and they relied on the Ritter four-part test.

[00:04:25] Speaker 00:
Are you saying that it's a matter of law that's wrong?

[00:04:29] Speaker 00:
That the standard they applied was the wrong standard?

[00:04:32] Speaker 04:
No, the 60B6 and 60B5 require a change in the law.

[00:04:39] Speaker 04:
They do require more things than that.

[00:04:42] Speaker 04:
In the case of 60B5, there must be some prospective component in the determination

[00:04:49] Speaker 04:
prospective component in the determination that will govern future proceedings.

[00:04:57] Speaker 04:
And that's the thing that he may be referring to.

[00:05:02] Speaker 04:
And the other side of it is that we show that with the Agostini decision.

[00:05:10] Speaker 04:
The Agostini decision from the Supreme Court made it pretty clear, I think, that any wrong statement of the law

[00:05:19] Speaker 04:
was an abuse of discretion.

[00:05:24] Speaker 04:
And I think a number of things were decided by Judge Mendoza with respect to that particular issue.

[00:05:34] Speaker 00:
Why is a practical matter, did you just not follow?

[00:05:38] Speaker 00:
I mean, if you thought the most recent Akamai opinion supported your cause of action and would have led you to prevail, why didn't you just file a new complaint?

[00:05:49] Speaker 04:
File a new complaint?

[00:05:50] Speaker 00:
Yes.

[00:05:51] Speaker 00:
Is it because of there's no doubt the only damages were early in the process or?

[00:05:57] Speaker 04:
The issue here is that there's reissue preclusion.

[00:06:00] Speaker 04:
That's the thing that of course we must deal with.

[00:06:04] Speaker 04:
A determination was made and that stands alone.

[00:06:08] Speaker 01:
Preclusion as to the product that was accused.

[00:06:11] Speaker 01:
Excuse me?

[00:06:12] Speaker 01:
As to the product that was accused.

[00:06:14] Speaker 04:
Yes, for that time period.

[00:06:16] Speaker 01:
What happens if there's new product for a new time period?

[00:06:20] Speaker 04:
I'm sorry.

[00:06:20] Speaker 01:
New product for a new time period.

[00:06:22] Speaker 04:
Oh, the same product for a new time period.

[00:06:24] Speaker 01:
Yeah, that's right.

[00:06:25] Speaker 04:
Yeah, according to the Dow Chemical Rule.

[00:06:28] Speaker 01:
Well, let's assume that you follow up on what the Chief Judge was suggesting, that you have the same product in a new time period.

[00:06:35] Speaker 01:
You bring your lawsuit.

[00:06:37] Speaker 01:
I did.

[00:06:37] Speaker 01:
Yeah, you bring your lawsuit, which is not what we have in front of us now.

[00:06:43] Speaker 01:
We have 60B section on the old one.

[00:06:45] Speaker 01:
Right.

[00:06:45] Speaker 01:
So you bring your new lawsuit, and a trial judge says, well, I'm going to throw you out of court.

[00:06:49] Speaker 01:
That's already been adjudicated.

[00:06:51] Speaker 04:
Right.

[00:06:51] Speaker 01:
Well, then your question is right, because the possibility that you're having a prospective application of the old law is clear in that case.

[00:07:03] Speaker 04:
And that judge could say to me,

[00:07:04] Speaker 04:
Well, why didn't you seek relief from the judgment in the lower court in the first case?

[00:07:09] Speaker 01:
Well, that's what you're here for.

[00:07:10] Speaker 04:
That's right.

[00:07:11] Speaker 04:
That's exactly right.

[00:07:14] Speaker 01:
And that's what I need.

[00:07:14] Speaker 01:
Perhaps what you're here for is you lose here, but at least you've covered your ground.

[00:07:19] Speaker 04:
Well, I don't expect to lose here, quite frankly, because I think the fact is that the other issues involved were whether or not this is an extraordinary case.

[00:07:32] Speaker 01:
Okay, and of course... Yeah, but assume both ways are wrong, then I'm coming clear in my mind for sure while you're here.

[00:07:40] Speaker 01:
Okay, so... You don't want to be bounced out of a district court later that said you failed to exhaust your remedies.

[00:07:47] Speaker 04:
And I also want to go back into this case, because we still are owed damages from the very first... Well, that would be a different matter.

[00:07:55] Speaker 01:
Whether you get another bite of the apple based on a change in law.

[00:08:00] Speaker 04:
Yeah, but I got another bite of the apple in this case.

[00:08:02] Speaker 04:
based on the change in law by reason of the fact that it's an extraordinary situation.

[00:08:08] Speaker 01:
And it's extraordinary because?

[00:08:11] Speaker 01:
What's extraordinary about it?

[00:08:12] Speaker 04:
Because this court didn't about face and it's Akamai.

[00:08:18] Speaker 01:
The change in law is always extraordinary?

[00:08:22] Speaker 04:
No, no, not always extraordinary.

[00:08:25] Speaker 04:
This is definitely extraordinary.

[00:08:28] Speaker 01:
Why is this more extraordinary than other cases in which the law gets changed?

[00:08:31] Speaker 04:
Oh, no.

[00:08:32] Speaker 04:
The law gets changed frequently by reason of additional circumstances that go down the line.

[00:08:38] Speaker 04:
This thing occurred within the context of the muni auction decision, the muni auction case.

[00:08:47] Speaker 04:
And it was of great length, of course, in all the Akamai decisions.

[00:08:53] Speaker 04:
decided.

[00:08:54] Speaker 01:
Well, me and the auction isn't overruled.

[00:08:56] Speaker 01:
It is not?

[00:08:57] Speaker 01:
Well, it's not overruled.

[00:08:58] Speaker 01:
If you bring me a case in which there is a contractor agency, right, we're going to find joint action.

[00:09:06] Speaker 04:
Yeah, but that's also already covered under a decision without me and the auction.

[00:09:12] Speaker 04:
That's covered under BMC because there's control and actual vicarious liability shown.

[00:09:20] Speaker 04:
That's not the point.

[00:09:21] Speaker 04:
The point is, of course,

[00:09:23] Speaker 04:
is that we were governed by muni auction because we didn't have a contractual or agency relationship with the voter.

[00:09:35] Speaker 04:
Not we, the defendant didn't have a contractual.

[00:09:39] Speaker 01:
I was just talking about, I think your attempt to show prospective impairment is unripe at the moment.

[00:09:47] Speaker 01:
It'll be ripe at a time when you bring a lawsuit based on

[00:09:52] Speaker 01:
new product but same as the old product but in a new time frame alleging infringement and you're told that you're non-suited by your previous decision.

[00:10:01] Speaker 04:
No, Your Honor, I don't think that's correct.

[00:10:03] Speaker 04:
The prospective nature of the decision is such as shown in a declaratory judgment action, which is what this was.

[00:10:12] Speaker 04:
That was part of the defendant's approach to the defense.

[00:10:18] Speaker 04:
The prospective component exists

[00:10:22] Speaker 04:
without the necessity for confronting it in the future.

[00:10:27] Speaker 04:
And this particular case, we are confronting it now within the case where it was decided.

[00:10:34] Speaker 04:
That's the issue.

[00:10:35] Speaker 01:
Well, you want to retry your original case.

[00:10:38] Speaker 04:
I never got a trial.

[00:10:40] Speaker 01:
Well, you would like to bring anew the case against the old product.

[00:10:44] Speaker 01:
You'd like to try that case again.

[00:10:47] Speaker 04:
Well, I would like to try it for the first time.

[00:10:49] Speaker 01:
Under the new law.

[00:10:50] Speaker 04:
I would also like a summary judgment against them.

[00:10:52] Speaker 04:
Because the proof was that... I say, Troy, you'd like to have your day in court.

[00:10:58] Speaker 01:
For once, yes.

[00:11:00] Speaker 01:
On your original complaint.

[00:11:02] Speaker 01:
For once, yes.

[00:11:03] Speaker 01:
On something that happened in the past.

[00:11:05] Speaker 04:
Yes.

[00:11:05] Speaker 01:
Based on new law.

[00:11:07] Speaker 01:
Right, because the fact is... And you cited me a case in which anybody's ever achieved that result.

[00:11:15] Speaker 04:
Well, I cited two cases that deal with the matter of the result.

[00:11:22] Speaker 04:
being turned around.

[00:11:25] Speaker 04:
I mean, the case of Ritter, for instance, which was cited by the district court.

[00:11:34] Speaker 04:
And I can't understand why he would cite that case, but it was a case involving 60B6.

[00:11:40] Speaker 04:
And I think probably are familiar with the brief, so I think it would be only necessary for me to say this particular

[00:11:49] Speaker 04:
case sent a man back to death row, because over a period of five years from the time that there was an initial determination in the same case.

[00:12:02] Speaker 04:
So I mean, I don't see that we're saying, well, there's an original case, and therefore that's all done with, and all you have is perspective.

[00:12:10] Speaker 04:
I don't think that's true, because I think in this case, judging from Ritter, which is, of course, a 11th Circuit case,

[00:12:19] Speaker 04:
And judging from Agostini, all the elements exist for relief from the final judgment.

[00:12:32] Speaker 04:
And if we don't have, I mean, I think the basic problem is that the other side denies that there's even a change in the law.

[00:12:45] Speaker 03:
If you read their briefs... Doesn't Ritter require more than just a change in the law?

[00:12:53] Speaker 03:
No, of course.

[00:12:53] Speaker 03:
Extraordinary circumstances.

[00:12:55] Speaker 03:
In this case, if this case is not extraordinary... So in this situation, you're looking at a change in the law.

[00:13:00] Speaker 03:
What more do you have?

[00:13:02] Speaker 03:
Extraordinary circumstances.

[00:13:03] Speaker 03:
What are those?

[00:13:06] Speaker 04:
The circumstance where we have a determination of law,

[00:13:14] Speaker 04:
a case that collapsed a good number of the method cases.

[00:13:20] Speaker 04:
That's a change in law.

[00:13:21] Speaker 04:
No, no.

[00:13:22] Speaker 04:
That has to do with the fact that it's extraordinary that that occurred.

[00:13:27] Speaker 00:
Are you saying the extraordinary portion is the consequences that that had?

[00:13:32] Speaker 00:
Certainly, Your Honor.

[00:13:33] Speaker 00:
Okay.

[00:13:33] Speaker 00:
Well, you want to just give us a sample of that?

[00:13:35] Speaker 00:
I mean, is it a consequence of it was worth

[00:13:40] Speaker 00:
thousands of millions of dollars that you can't ever pursue again.

[00:13:45] Speaker 04:
I mean, what are the extraordinary circumstances?

[00:13:47] Speaker 04:
We couldn't even get to that stage, but that's neither here.

[00:13:51] Speaker 04:
I don't think that's particularly relevant.

[00:13:53] Speaker 00:
Okay, so I'm asking you what's relevant.

[00:13:55] Speaker 00:
What are those extraordinary circumstances?

[00:13:57] Speaker 04:
Well, the extraordinary circumstances is the destruction of intellectual property.

[00:14:02] Speaker 04:
And in doing so, I mean, in advance of any claims ever being brought.

[00:14:08] Speaker 04:
Our claim, our patents were granted back in 2003 and 2005.

[00:14:12] Speaker 00:
Your patents were not invalidated in this proceeding.

[00:14:21] Speaker 04:
Oh, yeah.

[00:14:22] Speaker 04:
Two of the claims were.

[00:14:25] Speaker 01:
Your real claim here was you failed in your infringement claim.

[00:14:30] Speaker 01:
You failed in your infringement claim.

[00:14:33] Speaker 04:
I don't think I failed.

[00:14:34] Speaker 04:
I think the court below, in fact,

[00:14:38] Speaker 04:
found in our favor with respect to the facts related to the infringement, namely that the defendant developed and marketed the... Why didn't you get a judgment in your favor then?

[00:14:53] Speaker 01:
Really?

[00:14:53] Speaker 01:
Why didn't you get a judgment in your favor?

[00:14:55] Speaker 04:
Because of the immunity auction doctrine.

[00:14:59] Speaker 01:
You're talking about in your original, not the 60B, which court are you talking about?

[00:15:04] Speaker 01:
The original action.

[00:15:05] Speaker 01:
The original action, you lost.

[00:15:07] Speaker 04:
I didn't lose.

[00:15:08] Speaker 04:
The judge found that all the elements that were required for infringement, you see, were present.

[00:15:17] Speaker 04:
Did you get a monetary reward?

[00:15:19] Speaker 04:
No, no.

[00:15:20] Speaker 04:
We never got to that stage.

[00:15:21] Speaker 04:
The judge found that all of the elements that were there were present.

[00:15:28] Speaker 04:
But you lost the case.

[00:15:30] Speaker 04:
We didn't lose the case because we still had 90 valid claims, which could be prosecuted.

[00:15:37] Speaker 04:
if we did not have the prospective effect of mutiny auction.

[00:15:41] Speaker 04:
You see?

[00:15:42] Speaker 04:
And that's how we decided.

[00:15:43] Speaker 01:
I'm missing something.

[00:15:45] Speaker 01:
I thought you originally filed a claim for infringement.

[00:15:49] Speaker 01:
You wanted money.

[00:15:50] Speaker 01:
Yes.

[00:15:50] Speaker 01:
And my understanding was that there was a final order in some court, some place, that said your claim fails.

[00:15:56] Speaker 01:
You don't get a money award.

[00:15:59] Speaker 04:
We don't even get to try that case.

[00:16:02] Speaker 04:
It was on summary judgment.

[00:16:04] Speaker 01:
Right, so what was the summary judgment?

[00:16:05] Speaker 01:
Dismissed?

[00:16:06] Speaker 01:
What was the answer?

[00:16:07] Speaker 01:
What happened to the case?

[00:16:10] Speaker 04:
The case was, there was judgment entered against the plaintiff because of non-infringement, because of the Muny auction doctrine.

[00:16:20] Speaker 01:
Right, right, so you lost.

[00:16:21] Speaker 04:
Well, I admit, but the point is, there's the reason for the loss, is the Muny auction doctrine.

[00:16:27] Speaker 01:
Right, you said, well, by golly, if I'd been able to turn, if that case had been decided,

[00:16:33] Speaker 01:
under the new Akamai, you think you would have won.

[00:16:37] Speaker 04:
Well, it wasn't a question of being... Remember, this mutiny auction case was decided in 2008, okay?

[00:16:46] Speaker 04:
And it came along and destroyed all of the cases, all of the method patents that did not have a relationship... Agency or country.

[00:16:58] Speaker 04:
Agency or right.

[00:17:00] Speaker 04:
And that is extraordinary.

[00:17:02] Speaker 00:
I can't imagine that why it wouldn't be.

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

[00:17:05] Speaker 00:
Well, you've exceeded your rebuttal time.

[00:17:07] Speaker 00:
Why don't we hear from the other side and we'll wait for two minutes.

[00:17:19] Speaker 00:
Mr. Evans.

[00:17:20] Speaker 02:
May it please the court.

[00:17:21] Speaker 02:
I'm Robert Evans here for all the defendants.

[00:17:24] Speaker 02:
And I submit that there are three reasons for affirming Judge Mendoza in this decision.

[00:17:32] Speaker 03:
Tell us what happened below.

[00:17:33] Speaker 02:
This discussion we're having as to what happened at the... On the first trial, or the first case in front of Judge Fawcett, we moved for summary judgment of non-infringement and invalidity.

[00:17:46] Speaker 02:
The counter motion was for validity of all the claims.

[00:17:52] Speaker 02:
And so we were faced with proving the invalidity of 90-some-odd claims.

[00:17:58] Speaker 02:
And so, and non-infringement.

[00:18:00] Speaker 02:
And so there's a lot of information.

[00:18:01] Speaker 02:
And so we focused on the asserted claims and showed that they were not infringed and that they were invalid, we believe.

[00:18:08] Speaker 02:
Judge Fawcett, ultimately, through a series of motions, concluded that none of the claims were infringed, claimed 94 was invalid as indefinite, and claimed 49 was invalid based on prior art to Benson.

[00:18:19] Speaker 02:
Some of the other asserted claims she found was a question of obviousness to be decided later.

[00:18:25] Speaker 02:
But since there was no liability left, she entered judgment for the defendants.

[00:18:29] Speaker 02:
And there was no monetary award.

[00:18:30] Speaker 02:
It came up to this court on appeal, and that was affirmed, in all respects.

[00:18:36] Speaker 01:
In all respects.

[00:18:37] Speaker 01:
Yes.

[00:18:39] Speaker 01:
I submit it's not.

[00:18:40] Speaker 01:
And cert was denied, as I recall.

[00:18:42] Speaker 01:
Cert was denied, and reconsideration.

[00:18:44] Speaker 01:
Motion for rehearing was denied.

[00:18:44] Speaker 01:
Cert was denied.

[00:18:46] Speaker 01:
Motion for rehearing at the Supreme Court.

[00:18:47] Speaker 01:
Cert was denied.

[00:18:49] Speaker 01:
Not denied.

[00:18:50] Speaker 01:
Due process.

[00:18:51] Speaker 02:
Yeah.

[00:18:52] Speaker 02:
So I think as we sit here today, there's three reasons, independent reasons, for affirming the denial of the motion to reopen.

[00:18:58] Speaker 02:
The first was the failure to comply with the local rule.

[00:19:01] Speaker 02:
The second is the failure to meet the requirements of Rule 60.

[00:19:04] Speaker 02:
And the third is that even under the community auction law, as modified by Act of My Four, you reach the same outcome.

[00:19:11] Speaker 02:
With respect to the local rule, the district judge, Judge Mendoza, he expressly found the plaintiff's effort to apply the relevant law to its present request is either nonexistent or markedly inadequate.

[00:19:23] Speaker 02:
He did that at Appendix 008.

[00:19:26] Speaker 01:
How does that come a cropper of a local rule?

[00:19:30] Speaker 01:
How does that fact come a cropper of a local rule?

[00:19:33] Speaker 02:
The local rule says that you have to submit a legal memorandum in support of your motion.

[00:19:37] Speaker 02:
And you have to explain.

[00:19:38] Speaker 02:
You apply the law to the facts.

[00:19:40] Speaker 01:
Did the judge below didn't throw out the motion on the grounds of a failure to comply with the local rule?

[00:19:46] Speaker 02:
He did, yes.

[00:19:46] Speaker 02:
He did?

[00:19:47] Speaker 02:
He found that as an independent basis, the violation of the local rule

[00:19:52] Speaker 02:
in and of itself a ground two.

[00:19:54] Speaker 02:
What's our standard of review on that issue?

[00:19:56] Speaker 02:
Abusive discretion.

[00:19:57] Speaker 02:
That was not briefed by plaintiff as to why that was not an abusive discretion for local rule violation.

[00:20:03] Speaker 02:
So that's ground one.

[00:20:04] Speaker 02:
We put that aside, we look at rule 60.

[00:20:06] Speaker 02:
Rule 60, section B5, says you need something prospective.

[00:20:11] Speaker 02:
Something prospective is not just the effect of a judgment.

[00:20:15] Speaker 02:
That's Gibbs.

[00:20:16] Speaker 02:
You need something more than that.

[00:20:19] Speaker 02:
And typically, in the context of a declaratory judgment, it's a declaratory judgment where you're exercising ongoing supervision of conduct, of changing circumstances, of things like that.

[00:20:31] Speaker 02:
That was explained in detail in the DeWorth decision by the Second Circuit.

[00:20:42] Speaker 02:
And so if you said that every declaratory judgment has a prospective effect, or every entered judgment has a prospective effect,

[00:20:49] Speaker 02:
you would never have any finality.

[00:20:51] Speaker 02:
Because certainly, if you order someone to make a payment and it takes some time, that has a prospective effect.

[00:20:57] Speaker 02:
And so the case law is clear that you need more than just a settled past matter.

[00:21:03] Speaker 02:
You need a supervision of ongoing conduct.

[00:21:07] Speaker 01:
If you were a defendant in a patent case and you had been held to infringe,

[00:21:12] Speaker 01:
Right?

[00:21:15] Speaker 01:
Right.

[00:21:15] Speaker 01:
And there was an injunction against you to prevent you from infringing in the future.

[00:21:19] Speaker 01:
There would be prospect of effect, right?

[00:21:22] Speaker 02:
Potentially, yes.

[00:21:24] Speaker 02:
Yes.

[00:21:26] Speaker 02:
And then under Rule 60B6, you have to have something more than just a change in the law.

[00:21:33] Speaker 02:
The Ritter decision, the Gonzalez decision, both of those have been very clear that merely a change in the law does not constitute an extraordinary situation

[00:21:42] Speaker 02:
sufficient to justify reopening the judgment.

[00:21:45] Speaker 02:
In Ritter, there was a habeas petition that was still in play.

[00:21:49] Speaker 02:
And that in-play petition is the petition that was affected as a function of the change in the law.

[00:21:54] Speaker 02:
This is a case where mandate was entered after a petition at the Supreme Court was denied.

[00:22:00] Speaker 02:
And two and a half years later, there's an attempt to reopen that judgment.

[00:22:04] Speaker 02:
And so I submit that since Rule 60's requirements haven't been met, the entry of judgment is not a prospective event.

[00:22:12] Speaker 02:
There is no extraordinary circumstance here.

[00:22:14] Speaker 02:
A mere change in law does not qualify that you don't meet rule 60.

[00:22:18] Speaker 02:
And under the abuse and discretion standard, judgment does or should be affirmed.

[00:22:22] Speaker 02:
And then lastly, when you say, OK, well, what really happened here?

[00:22:25] Speaker 02:
What really happened to MuniOption?

[00:22:27] Speaker 02:
What happened to MuniOption is that it originally said you look for an agency partnership relationship, or else you look for some type of a contractual relationship.

[00:22:34] Speaker 02:
And if you find them, then you can attribute the acts of a second party to the first party out of the context of a direct infringement analysis.

[00:22:42] Speaker 02:
What happened, I think, at the end of Act MI-4 is that they added a third way of meeting the Muni option direct infringement test.

[00:22:49] Speaker 02:
And that third way is that if you condition participation in an activity on receipt of a benefit upon the performance of a step or steps of a patented method and establish the manner or timing of that performance, then you can also be liable for the acts of another party.

[00:23:06] Speaker 02:
So Muni option wasn't overruled.

[00:23:08] Speaker 01:
It was just expanded.

[00:23:09] Speaker 01:
In the absence of a contract or a

[00:23:12] Speaker 01:
Yes.

[00:23:12] Speaker 02:
It's an alternative way to meet meeting option.

[00:23:14] Speaker 01:
A third one.

[00:23:15] Speaker 01:
Yes, a third one.

[00:23:16] Speaker 01:
A more relaxed way.

[00:23:17] Speaker 02:
Yes.

[00:23:18] Speaker 02:
Yeah.

[00:23:19] Speaker 02:
So when you look here and you say, what are the claim elements?

[00:23:23] Speaker 02:
Two of the claim elements are that the voter, as they vote, have to affirmatively, the step element is exactly, it says comparison by the voter of the printed vote with the computer screen.

[00:23:38] Speaker 02:
And decision by the voter as to whether the ballot is acceptable.

[00:23:42] Speaker 02:
And so the voter has to affirmatively make a comparison between a piece of paper and the screen they're voting on.

[00:23:48] Speaker 02:
And it has to affirmatively make a decision that, yes, those two are both acceptable.

[00:23:53] Speaker 02:
You don't have to do either one of those to vote on any of the accused equipment.

[00:23:58] Speaker 02:
It's like in the gas station.

[00:23:58] Speaker 02:
You get a receipt for your gas.

[00:24:00] Speaker 02:
You don't have to compare it to the pump.

[00:24:02] Speaker 02:
You buy groceries.

[00:24:02] Speaker 02:
You don't have to compare the receipt to the cash register.

[00:24:06] Speaker 02:
You can vote, hit vote, walk out of the booth.

[00:24:08] Speaker 02:
And these two method steps have never been performed.

[00:24:12] Speaker 02:
Since we don't condition voting on performance of those two method steps, they're simply missing.

[00:24:19] Speaker 02:
If they're missing, there can be no direct infringement.

[00:24:20] Speaker 02:
So it doesn't matter.

[00:24:21] Speaker 02:
The fact that it's standard changed doesn't matter.

[00:24:24] Speaker 02:
And when you look at the Act of My Four, it said, we still look to issues or still look to the principles of a carrier's liability for determining direct infringement in the context where there's two parties.

[00:24:38] Speaker 02:
It also said, immunity option, it says,

[00:24:41] Speaker 02:
Arms-length cooperation will not give rise to direct infringement.

[00:24:48] Speaker 02:
So if you simply have arms-length cooperation, that's enough.

[00:24:52] Speaker 02:
The Supreme Court, when it looked at this in the limelight decision, limelight versus Akamai, it said, we assume without deciding the muni option was correctly decided.

[00:25:01] Speaker 02:
And so there's no reason to believe that any of these rules of law have changed other than the broadening of the standard to include

[00:25:11] Speaker 02:
the situation where you condition participation on the completion of the claim elements.

[00:25:18] Speaker 02:
And so I think that even though there has been a change in the law a little bit, it hasn't been much and it certainly hasn't been enough to create the issue of direct infringement here.

[00:25:28] Speaker 02:
When this court looked at this case the last time and they applied the directional control test, they said that that is far from the case before us, that there was directional control here.

[00:25:39] Speaker 02:
Far from the case before, this was the situation last time.

[00:25:42] Speaker 02:
That's when they looked at the issue where they said the voter is not required to compare the vote against the paper, against the screen.

[00:25:50] Speaker 02:
It is not required to reach a decision.

[00:25:52] Speaker 02:
Those elements don't need to be met to vote.

[00:25:53] Speaker 02:
Therefore, there's no condition.

[00:25:56] Speaker 02:
So I think for any one of those three reasons, you can affirm.

[00:25:59] Speaker 02:
And there's no reason not to affirm that I'm aware.

[00:26:02] Speaker 02:
I'm also not aware of any case where anybody, post-mandate, reopened a judgment in these kinds of circumstances.

[00:26:08] Speaker 00:
Thank you.

[00:26:13] Speaker 00:
I will give you two minutes for rebuttal.

[00:26:15] Speaker 00:
You've exhausted your time, but you can have some rebuttal.

[00:26:17] Speaker 04:
Just on the last note that Mr. Evans... Why don't you wait till you get here so we can record you.

[00:26:22] Speaker 04:
Yes, I'm sorry.

[00:26:22] Speaker 04:
My apologies for the microphone.

[00:26:25] Speaker 04:
Just on the last note.

[00:26:27] Speaker 04:
Indeed, what he said is correct and a correct statement from the decision.

[00:26:33] Speaker 04:
What they were referring to, however, is that there was no, and they cited, uni auction for the fact that there was

[00:26:41] Speaker 04:
no contractual or agency relationship involved.

[00:26:46] Speaker 04:
And that was the basis for their decision.

[00:26:49] Speaker 04:
That is the case that they cited in support of their position that there was no control or supervision or the like of that.

[00:27:07] Speaker 04:
And I want to draw the Court's attention to the fact that this

[00:27:10] Speaker 04:
of course, before the lower court and before the appellate court, which were shown to be related to an election.

[00:27:22] Speaker 04:
And elections are not conducted like in a gas station or checking your stuff against the supermarket register.

[00:27:33] Speaker 04:
This has to do with

[00:27:34] Speaker 04:
how an election is to be conducted, and it only can be conducted according to law that the jurisdiction is subject to.

[00:27:49] Speaker 04:
So the jurisdiction buys the voting equipment, and the voting equipment comes with certain instructions as to how it is to be used.

[00:28:00] Speaker 04:
And the jurisdiction is bound to use the voting

[00:28:04] Speaker 04:
according to voting equipment, according to the instructions by reason of the fact that that equipment is certified for that purpose.

[00:28:12] Speaker 04:
So the whole notion, whole background of elections is in play.

[00:28:19] Speaker 04:
And so consequently, the last statement by Mr. Evans, I believe was completely incorrect, as if though the voter is completely on his own.

[00:28:33] Speaker 04:
Excuse me.

[00:28:34] Speaker 04:
on his own when he's in the process of voting.

[00:28:39] Speaker 00:
Thank you very much.