[00:00:00] Speaker 04:
Again, Mr. Davis.

[00:00:08] Speaker 03:
Yes, again, may it please the Court.

[00:00:12] Speaker 03:
In the case that is before the Court, the District Court denied two motions for sanctions that were filed against USAA.

[00:00:22] Speaker 03:
It denied two motions to dismiss the inequitable conduct counterclaims

[00:00:27] Speaker 03:
It denied a motion for a protective order to preclude discovery into the inequitable conduct issue.

[00:00:33] Speaker 03:
It denied a summary judgment motion seeking summary judgment of no inequitable conduct.

[00:00:40] Speaker 04:
Was there discovery about the inequitable conduct issue in the first case?

[00:00:45] Speaker 03:
There was.

[00:00:46] Speaker 04:
There was discovery that the judge denied the... The Supreme Court has told us that the streets about attorneys being shouldn't become an

[00:00:54] Speaker 04:
basis for an entire reopening of all the issues in the case.

[00:00:58] Speaker 04:
I mean, I don't understand why he had to allow additional discovery on inequitable conduct when he already had it.

[00:01:05] Speaker 03:
I'm sorry, when you said in the initial case, were you referring to the... The one we just had argued.

[00:01:11] Speaker 03:
Right.

[00:01:11] Speaker 03:
2415.

[00:01:11] Speaker 03:
Yeah, so this is the same case.

[00:01:14] Speaker 03:
He just issued a subsequent attorney's in-order.

[00:01:18] Speaker 04:
Yes, I understand.

[00:01:19] Speaker 04:
I understand.

[00:01:19] Speaker 04:
But the point is that we're not supposed to have attorney's fees disputes turn into another entire case.

[00:01:28] Speaker 04:
And I don't see on what basis you can complain that you didn't get additional discovery on the attorney's fees issue when you'd already had discovery on inequitable conduct in the main case.

[00:01:43] Speaker 03:
I understand, Your Honor.

[00:01:44] Speaker 03:
I understand.

[00:01:45] Speaker 03:
And I did not mean to suggest that we were complaining that we didn't get discovery on the attorney's fees issue.

[00:01:51] Speaker 03:
My point is only that those facts coupled with the fact that during the bench trial in this case, the Court held one of plaintiff's counsels in contempt at the end of the first day of trial.

[00:02:05] Speaker 03:
dealt with the motion for recusal, found as a fact on the record that counsel for the plaintiff had engaged in unethical behavior.

[00:02:15] Speaker 03:
What's unethical about representing witnesses?

[00:02:21] Speaker 04:
What is unethical about representing witnesses who potentially have an attorney-client relationship with the client?

[00:02:31] Speaker 03:
Standing alone, I don't think there's anything that's unethical about that at all.

[00:02:35] Speaker 03:
I think the concern that Judge Neumar had was that the counsel who was representing those witnesses was a witness himself and also worked for a firm that had a financial interest in this case.

[00:02:48] Speaker 03:
And so in the... So what makes that unethical?

[00:02:51] Speaker 03:
Help me.

[00:02:52] Speaker 03:
Well, so I think the issue is that in the depositions, when Mr. Neenstadt was

[00:03:00] Speaker 03:
instructing the witnesses not to answer specific questions and the witnesses stood on those objections and Judge Dumar, to the extent he did, later concluded that some of those objections were unfounded, that would be unethical because that is counsel directing a witness in a way that he had a specific, had a specific impact on his and his firm's financial bottom line and it deprived

[00:03:31] Speaker 04:
What case says that's unethical?

[00:03:33] Speaker 03:
I don't have a case that says that's unethical.

[00:03:35] Speaker 03:
I do not.

[00:03:38] Speaker 03:
But in context, Your Honors, this is what I would say.

[00:03:41] Speaker 03:
I don't think that there is a Federal Circuit case that has addressed this specific issue yet.

[00:03:48] Speaker 03:
But in the Diet Goal Innovations case, which is a district court case from the Eastern District of Texas that was Senior Judge Bryson sitting by designation

[00:03:58] Speaker 03:
The court held that a consideration of inequitable conduct can be considered as a part of the overall octane fitness analysis.

[00:04:09] Speaker 04:
Well, sure, but you have to then show inequitable conduct to have that be part of the analysis.

[00:04:17] Speaker 04:
And the trouble is that the district judge here found that there wasn't inequitable conduct.

[00:04:23] Speaker 04:
And don't we have to respect those findings in connection with the attorney's seize issue?

[00:04:28] Speaker 03:
You certainly have to respect those findings or at least give them deference.

[00:04:33] Speaker 03:
However, what the diet goal innovations case says is that as a part of that analysis, it is sufficient to show by preponderance of the evidence, for attorney's fee purposes,

[00:04:46] Speaker 04:
that inequitable conduct was likely, rather than meeting the clear and condensing standard.

[00:04:55] Speaker 03:
No, you don't have to reopen it at all, Your Honor.

[00:04:58] Speaker 03:
Judge Dumar, having heard the entire one-week trial and observed all the witnesses and finding, in his opinion, that an inference of inequitable conduct was extremely plausible,

[00:05:11] Speaker 03:
even though in his view there was an equally plausible one of incompetence, that he can consider that in determining whether an award of attorney's fees is appropriate.

[00:05:21] Speaker 02:
The district court expressed surprise at JA 1173 that USAA didn't move to disqualify Mr. Meenstad, saying it would have been granted.

[00:05:34] Speaker 02:
Why didn't you move to disqualify counsel?

[00:05:37] Speaker 02:
Because it would have at least cleaned up a lot of this stuff.

[00:05:41] Speaker 03:
Your Honor, that's an excellent question.

[00:05:43] Speaker 03:
And what I can tell the court is that USAA seriously considered that.

[00:05:47] Speaker 03:
And ultimately, the conclusion that our client came to was that Mr. Meenstad had acted as lead counsel the entire period of the case and had gone on far too long.

[00:05:58] Speaker 03:
And that if the court had disqualified him, there would have been an even longer delay that would have prejudiced our client further.

[00:06:06] Speaker 03:
So that was the only reason that we didn't do it, Your Honor.

[00:06:09] Speaker 03:
And I will note, though, that after when the court made that statement, you know, the court already knew and we had already put Mr. Means that on our trial witness list.

[00:06:18] Speaker 03:
And so our client's thinking was the court will have an opportunity to observe the witness.

[00:06:23] Speaker 03:
And he did.

[00:06:24] Speaker 03:
And he made findings in that regard.

[00:06:27] Speaker 03:
So, Your Honor, we understand that the burden is high.

[00:06:32] Speaker 03:
We understand that the district judge, you know, gave at least a solitary nod to

[00:06:39] Speaker 03:
the law here, the one thing that we would say is that at pages 20 and 21 of his fee decision, he essentially says what his honor, Judge Dyke, just said, which is, I considered the issues on inequitable conduct and I found that the burden wasn't met and branded the 52C motion.

[00:06:59] Speaker 03:
So now let me put that to the side and consider each of these other issues in isolation.

[00:07:04] Speaker 03:
We think that what the court should have done

[00:07:05] Speaker 03:
is consider the totality of the circumstances, particularly in light of the evidence that the court and the statements that the court made on the record.

[00:07:15] Speaker 03:
And it was error to not come to a different conclusion.

[00:07:19] Speaker 03:
The last point that I'll make is this, and then I'll sit down unless the court has questions.

[00:07:24] Speaker 03:
It is clear that the court was concerned in ruling on the fees motion with the ability

[00:07:35] Speaker 03:
experience level of plaintiff's counsel.

[00:07:38] Speaker 03:
And we would submit, we couldn't find a case that addressed this specific issue, but we would submit to your honors that the experience level of counsel should not be a part of the consideration for the Octane Fitness 285 analysis.

[00:07:53] Speaker 03:
That arguably is appropriate for a consideration of the quantum of fees, but the only question to be asked at this stage

[00:08:01] Speaker 03:
under the law is whether this case is one that stands out from others.

[00:08:06] Speaker 02:
If you want part of the city of Caliente, District Court of Nevada, approximately 1993, in which I argued to the district court, I don't mind being outsmarted.

[00:08:17] Speaker 02:
There are a lot of lawyers in this town who are smarter than I am, but I hate being out-dumbed.

[00:08:23] Speaker 02:
Thank you, Your Honor.

[00:08:25] Speaker 02:
Okay.

[00:08:26] Speaker 04:
Thank you, Mr. Chairman.

[00:08:28] Speaker 04:
Ms.

[00:08:28] Speaker 04:
Peyton?

[00:08:35] Speaker 00:
Your honors, when we're looking at... Even if the district court found it wasn't the single most reasonable inference for inequitable conduct of fraud to get to inequitable conduct, couldn't he and shouldn't he have analyzed it under a different standard for 285 fees?

[00:08:52] Speaker 00:
Which is, just because it doesn't meet that standard, couldn't it still be sufficiently fraudulent to make this an exceptional case?

[00:09:00] Speaker 01:
No, Your Honor.

[00:09:01] Speaker 00:
First of all- Why not?

[00:09:03] Speaker 00:
It's a different standard, right?

[00:09:04] Speaker 00:
Therosense is not the same as octane.

[00:09:07] Speaker 01:
Therosense is not the same as octane.

[00:09:09] Speaker 01:
But Therosense laid down the rule you just articulated.

[00:09:12] Speaker 01:
It has to be the single most reasonable inference.

[00:09:15] Speaker 01:
And he found that wasn't the case here.

[00:09:17] Speaker 01:
But let's get back to what happened here.

[00:09:20] Speaker 01:
It was a failure to claim priority back through a chain of children to the grandparent.

[00:09:26] Speaker 01:
When we look at the specific intent to deceive,

[00:09:29] Speaker 01:
There's no value to failing to make that priority claim.

[00:09:33] Speaker 00:
We don't need specific intent to deceive for 285 fees.

[00:09:36] Speaker 01:
Your Honor, what they're relying on for 285 fees is primarily their inequitable conduct claim.

[00:09:42] Speaker 01:
And for that, the judge decided after a five-day trial that he couldn't find in their favor, no matter what was presented by the plaintiff in this case.

[00:09:52] Speaker 02:
Let me ask you this.

[00:09:54] Speaker 02:
I think it's what your opposing counsel should have said.

[00:09:58] Speaker 02:
Am I correct that Mr. Neenstad is a member of the Virginia Bar?

[00:10:02] Speaker 01:
He is, Your Honor.

[00:10:04] Speaker 02:
Doesn't Virginia Bar... Oh, I apologize.

[00:10:06] Speaker 01:
Not a member of the Virginia Bar.

[00:10:08] Speaker 01:
Do you see?

[00:10:09] Speaker 01:
Yes.

[00:10:10] Speaker 02:
Okay.

[00:10:11] Speaker 02:
So it's not barred in Virginia.

[00:10:14] Speaker 01:
That's correct, yes.

[00:10:15] Speaker 02:
Where was the trial?

[00:10:17] Speaker 01:
It was in Virginia, Your Honor.

[00:10:19] Speaker 02:
Are you aware that Virginia State Bar Rule 3.7 prohibits lawyers from acting as an advocate in a case where the lawyer is likely to be a necessary witness?

[00:10:29] Speaker 01:
I am, Your Honor, but let's go to that point.

[00:10:32] Speaker 01:
It wasn't until the trial judge brought up this question about his limited representation of the prior attorneys that this was even an issue.

[00:10:41] Speaker 01:
This was the judge's position.

[00:10:44] Speaker 01:
USAA then latched onto that and stated that there was a problem.

[00:10:48] Speaker 01:
Now, you heard Mr. Davis state that they decided not to do it because it would interfere with trial.

[00:10:55] Speaker 01:
But I submit, Your Honor, the record reflects that this was a hard-fought case below.

[00:11:00] Speaker 01:
The gloves were off throughout the entire case.

[00:11:03] Speaker 01:
And that's not reflected on the record.

[00:11:05] Speaker 01:
When we look at the Virginia rules, we have to look at whether the limited representation would lead to and proposes an actual conflict or a potential conflict.

[00:11:17] Speaker 02:
Now, what if they're- If that limited representation included

[00:11:22] Speaker 02:
in effect, suborning perjury, that would be an actual conflict, wouldn't it?

[00:11:27] Speaker 01:
But there was no evidence that that happened in this case, Your Honor.

[00:11:30] Speaker 01:
What they're stating is that employers who are in a litigation cannot provide legal representation for former employees relating to the factual issues that they have knowledge of.

[00:11:42] Speaker 01:
That is not the law, that is not the case, and it is not an ethical violation to provide that limited representation.

[00:11:50] Speaker 01:
Also, what happened during the depositions and also at trial is each of these lawyers testified under penalty of perjury that they did not look at the priority claim, they were not asked to look at the inventor's priority claim that they made with their pro se filings, and that they had no intent to deceive the court when making the representations about priority based upon the record that was available before them.

[00:12:16] Speaker 02:
Let me take you to what we were discussing in the prior

[00:12:20] Speaker 02:
which I said we'd come to now.

[00:12:24] Speaker 02:
In the blue brief at 24, there's a reference to the district court maintaining a hostility towards individuals of foreign origins and that its conduct appeared to be exacerbated by senility.

[00:12:41] Speaker 02:
And that's in reference to a petition that was denied to the circuit and denied again to the circuit.

[00:12:50] Speaker 02:
I looked at the record testimony.

[00:12:53] Speaker 02:
And the district court indeed asked Mr. Esgeri Camerini what country he came from.

[00:13:02] Speaker 02:
That's what he asked, right?

[00:13:04] Speaker 02:
That's your evidence of hostility towards people from foreign countries.

[00:13:09] Speaker 02:
Is that right?

[00:13:11] Speaker 02:
Because that's the reference you give me.

[00:13:13] Speaker 01:
It is, Your Honor.

[00:13:14] Speaker 01:
It is, Your Honor.

[00:13:14] Speaker 01:
Okay.

[00:13:15] Speaker 02:
And that was after counsel had asked the following question.

[00:13:19] Speaker 02:
While English is not the witness's first language, Mr. Asgari, was he comfortable in testifying in English?

[00:13:30] Speaker 02:
And you think it indicates bias to ask what country are you from?

[00:13:34] Speaker 01:
Your Honor, it is one of the pieces of evidence and hearing transcripts that we provided in support of the writs of mandamus.

[00:13:45] Speaker 02:
What else did you give us to demonstrate bias against

[00:13:50] Speaker 02:
individuals of foreign origin, which is a very serious claim.

[00:13:54] Speaker 01:
That was the record site that we pointed to, Your Honor, for that particular process.

[00:13:57] Speaker 02:
No, as to chenillity.

[00:14:00] Speaker 02:
In the record, at J.A.

[00:14:06] Speaker 02:
1133, which is what you cite me to, the court below cites, you cite the district court statement during trial,

[00:14:19] Speaker 02:
that he better check their assents out after he'd already had it presented to him.

[00:14:25] Speaker 02:
That's correct.

[00:14:26] Speaker 01:
Yes, Your Honor.

[00:14:26] Speaker 01:
This was fully briefed during multiple motions and in summary judgment.

[00:14:31] Speaker 01:
And he expressed surprise during trial that he didn't understand the case law and asked that the parties provide it to him.

[00:14:37] Speaker 02:
So the judge forgot about a case.

[00:14:42] Speaker 01:
Your Honor, from the record, it looks like the judge has never reviewed the case despite.

[00:14:46] Speaker 02:
So where are we?

[00:14:48] Speaker 02:
on your forgetting all the record sites that I asked you about in the last case.

[00:14:58] Speaker 01:
Your Honor, I apologize for not having those record sites at the raving.

[00:15:02] Speaker 02:
Oh, I understand.

[00:15:03] Speaker 02:
But do they demonstrate senility?

[00:15:06] Speaker 01:
I certainly hope not, Your Honor.

[00:15:07] Speaker 01:
But I get your point, Your Honor.

[00:15:09] Speaker 01:
I absolutely get your point.

[00:15:12] Speaker 01:
With respect to this issue about attorney's fees, again, it's abuse of discretion.

[00:15:17] Speaker 01:
They're relying on inequitable conduct as the basis for it.

[00:15:21] Speaker 01:
As the district court heard five days of hearing, the district court or testimony, the district court determined that there was no there there on this priority issue.

[00:15:32] Speaker 01:
And getting back to the underlying basis for their attorney's fees claim, it comes down to this question of a specific intent to deceive.

[00:15:41] Speaker 02:
Do you agree that

[00:15:43] Speaker 02:
Mr. Asgari Kamrani offered conflicting claim constructions before the PTAB and the district court.

[00:15:54] Speaker 01:
Your Honor, we do not.

[00:15:56] Speaker 01:
Here's what happened.

[00:15:57] Speaker 01:
There's a broadest reasonable interpretation standard at the PTO.

[00:16:02] Speaker 01:
There is the Phillips standard at the district court.

[00:16:04] Speaker 01:
Now, in a particular filing, the CBM counsel

[00:16:09] Speaker 01:
unfortunately had errors in one of the articulations of the claim construction.

[00:16:14] Speaker 01:
When they listed it in other places of the brief, it was correct.

[00:16:18] Speaker 01:
That was the basis for their argument that it was contradictory and that the... And shifting.

[00:16:24] Speaker 01:
And shifting.

[00:16:24] Speaker 01:
That's right, Your Honor.

[00:16:25] Speaker 01:
But frankly, that was a mistake, unfortunately, made by counsel during the agency proceedings.

[00:16:31] Speaker 01:
And that was fully briefed before the court when it was brought up below.

[00:16:37] Speaker 02:
In the red brief at 49, you say that

[00:16:39] Speaker 02:
quote, Magistrate Judge Leonard became frustrated with Defendants' Council practice of litigating unnecessary motion, commenting that Defendants' Council's motion practice seems designed to accomplish nothing more than increasing attorney's fees.

[00:16:57] Speaker 02:
And he was signing it 3697.

[00:17:00] Speaker 02:
Where does it say motion practice at 3697?

[00:17:04] Speaker 01:
Your Honor, I'm not sure it says motions practice, and I suspect since you have the record in front of you, it may not say that.

[00:17:11] Speaker 01:
But I will say that the context was a motion that the judge was hearing.

[00:17:16] Speaker 01:
A motion, yes.

[00:17:17] Speaker 01:
Yes.

[00:17:17] Speaker 01:
So the judge was hearing a motion that had been brought and was reflecting on the serial motion practice and the problem that occurred.

[00:17:27] Speaker 01:
The problems that he saw from the practice.

[00:17:29] Speaker 02:
I didn't see anything about serial motion practice in that.

[00:17:34] Speaker 01:
I understand, Your Honor.

[00:17:36] Speaker 02:
Is it somewhere else in the record?

[00:17:40] Speaker 01:
That particular point, the serial motions practice?

[00:17:42] Speaker 01:
No.

[00:17:43] Speaker 01:
What I'm trying to state, Your Honor, is that the judge entertained motions by... You can't speculate.

[00:17:50] Speaker 02:
You can't just... I mean, when you cite the court to something, especially something as serious as this, you have to cite to an actual record site.

[00:18:02] Speaker 02:
And over and over again, you're telling me, well, it's not there.

[00:18:06] Speaker 02:
But this is how it looks.

[00:18:09] Speaker 02:
That's not what you do in front of the court.

[00:18:12] Speaker 01:
Your Honor, I apologize.

[00:18:14] Speaker 01:
What I'm trying to say is you have to look at the context of the discussion.

[00:18:20] Speaker 01:
We provided a record site relating to the judge's frustration that he stated about USAA's practice.

[00:18:28] Speaker 01:
It's in the context of the motion.

[00:18:29] Speaker 01:
That's the point that's made in the brief

[00:18:31] Speaker 01:
And that is the point I'm attempting to make here, albeit not very well before, Your Honor.

[00:18:36] Speaker 02:
It's practice.

[00:18:36] Speaker 02:
You're characterizing it as it's practice.

[00:18:38] Speaker 02:
He's characterizing it as that motion.

[00:18:41] Speaker 01:
He is characterizing it as the motion that is before him, Your Honor.

[00:18:46] Speaker 01:
There are other judges, though, as we cite in our brief, there are other judges who express frustration with motions as well.

[00:18:54] Speaker 01:
But this gets back to, let's go back to the 10,000 foot level, because what this court is being asked to decide

[00:19:00] Speaker 01:
is the district court abused its discretion in denying attorney's fees, looking at the totality of the circumstances.

[00:19:08] Speaker 01:
And also, that it was abuse of discretion for the district court to decide that there was no specific intent to deceive under the sericent standard, which requires that the most reasonable inference be that there was an intent to deceive the office, a specific intent to deceive the office that has not been shown here in what they're attempting to do.

[00:19:28] Speaker 04:
You're arguing the last case.

[00:19:30] Speaker 01:
This, well, we've unfortunately, Your Honor, been merging the cases together, but in essence, you know, I'm focusing on the attorney's fees and equitable conduct.

[00:19:42] Speaker 01:
And if Your Honor wants to touch this issue again, I'll be happy to do so.

[00:19:45] Speaker 02:
I'm not at all sure that this shouldn't have been 45 and 45, but I mean minutes, you know.

[00:19:51] Speaker 01:
Unless the court has further questions.

[00:19:55] Speaker 03:
Mr. Davis, anything further?

[00:19:57] Speaker 03:
No your honor just one minor point and that is that I did not hear Ms.

[00:20:01] Speaker 03:
Payton raise the issue of their cross appeal until I assume that's been waived.

[00:20:04] Speaker 03:
Thank you your honor.

[00:20:06] Speaker 04:
Okay thank you counsel the case is submitted and that brings us to our third case.