[00:00:00] Speaker 05:
Morning is 181028 code of development versus Goodyear Tire and Rubber.

[00:00:49] Speaker 05:
May I please the court?

[00:01:04] Speaker 04:
You're no longer challenging the decision to dismiss without prejudice the Lanham Act claim or the non-trade secret state law claims, correct?

[00:01:14] Speaker 00:
That is correct, Your Honor.

[00:01:16] Speaker 00:
The issues are Cota's and Biddership claims and Cota's trade secret claims.

[00:01:20] Speaker 00:
And that's a de novo standard.

[00:01:22] Speaker 00:
We are challenging the dismissal of those claims from the original motion to dismiss order.

[00:01:28] Speaker 00:
But we are also challenging the district court's denial of COTA's motion to amend under Rule 59.

[00:01:36] Speaker 05:
When you got the reply, I think I'm using the right terminology, you did as expected file a motion to strike.

[00:01:46] Speaker 05:
as well as in the alternative motion to be able to file a surrogate, right?

[00:01:52] Speaker 05:
Correct, Your Honor.

[00:01:53] Speaker 05:
How come you didn't also, in the alternative, ask to amend?

[00:01:59] Speaker 05:
Because one of the reasons the judge criticized you, or at least at the end of the day, I think she said you should have come in sooner.

[00:02:08] Speaker 05:
So that would have been your opportunity to come in sooner.

[00:02:15] Speaker 05:
Now, I understand that the answer may be that you thought that even if she rejected your two options and the alternative, you'd have an opportunity at that stage to come in with the motion to amend.

[00:02:29] Speaker 00:
But I don't know that.

[00:02:31] Speaker 00:
That is correct, Your Honor.

[00:02:32] Speaker 00:
A couple of points.

[00:02:33] Speaker 00:
Number one, in the district court's decision, I just want to clarify one thing for the record, because in the district court's decision denying Code is Rule 59,

[00:02:42] Speaker 00:
motion to alter and rule 15 motion to amend.

[00:02:45] Speaker 00:
The district court says the COTA had an opportunity to amend when the district court denied COTA's motion for a serve reply.

[00:02:52] Speaker 00:
That is not true.

[00:02:53] Speaker 00:
There was one opinion and that opinion dismissed the inventorship and trade secret, dismissed COTA's complaint, granted Goodyear's motion to dismiss, denied COTA's motion to strike and for a serve reply.

[00:03:08] Speaker 00:
in a footnote held that COTA doesn't get leave to amend, and then the district court simultaneously in one fell swoop entered judgment.

[00:03:15] Speaker 00:
All that happened at once.

[00:03:16] Speaker 00:
There was never any notice or opportunity to amend.

[00:03:20] Speaker 00:
So to address your honor's direct question, why didn't COTA simply put in, oh, by the way, in the alternative, if you don't do what COTA thinks you should do and strike this extraneous prior art that's not referenced in the complaint, COTA would like to amend.

[00:03:38] Speaker 00:
Well, Goodyear actually answers that question in their red brief.

[00:03:41] Speaker 00:
As Goodyear points out, and as there's a number of Sixth Circuit cases that say this, it doesn't do a plaintiff any good to simply put in an alternative request for relief as an aside.

[00:03:51] Speaker 00:
According to Sixth Circuit law, there's a number of cases that say this.

[00:03:55] Speaker 00:
You either amend, you file a motion to amend in an amended complaint, or you don't.

[00:04:02] Speaker 00:
And putting in simple, there's a number of cases that say, oh, in the alternative, we'd like to move.

[00:04:08] Speaker 00:
denied right and left.

[00:04:09] Speaker 04:
On page 21 of the red brief, Goodyear says that according to the 2008 article, COTA posted videos of the purportedly secret technology on its website prior to Goodyear's patent application.

[00:04:25] Speaker 04:
Is that true?

[00:04:27] Speaker 04:
And if it is, why wasn't it revealed?

[00:04:32] Speaker 00:
Your Honor, that's a mischaracterization.

[00:04:35] Speaker 00:
There is a video.

[00:04:36] Speaker 00:
And it is on COTA's website.

[00:04:38] Speaker 00:
And there is a prototype in the background.

[00:04:41] Speaker 00:
You can't tell anything.

[00:04:42] Speaker 00:
You can't see anything from it.

[00:04:44] Speaker 00:
It's small and in the background.

[00:04:46] Speaker 00:
There were hours of discussions in a hotel suite that Mr. Hrabel and Bob Benedict and others from Goodyear painstakingly went over the prototype.

[00:04:59] Speaker 00:
Those are two very different things.

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

[00:05:03] Speaker 00:
And I guess the other point I'll make is it goes back to COTA's overall issue with what the district court did in the unfairness and manifest injustice of it all, of how the motion to dismiss was handled.

[00:05:16] Speaker 00:
And that's really an issue that's a factual issue that the first opportunity to really address that is after discovery and on summary judgment or at trial, right?

[00:05:28] Speaker 05:
Just looking hypothetically at where we go, let's assume we agree with your concerns about what the district court did in this case.

[00:05:37] Speaker 05:
Are we still?

[00:05:38] Speaker 05:
I mean, there are, I guess, two alternatives.

[00:05:41] Speaker 05:
One is to just reverse her grant of motion to dismiss.

[00:05:46] Speaker 05:
And the other would be to go after the 59E and the motion to amend.

[00:05:51] Speaker 05:
Kind of all jumbled together here in terms of what's going to happen if indeed

[00:05:58] Speaker 05:
we send this case back and how to make life easier for everyone in terms of how we do that.

[00:06:07] Speaker 05:
So you want to talk a little about that?

[00:06:09] Speaker 00:
Absolutely, Your Honor.

[00:06:10] Speaker 00:
In fact, in my prepared remarks, it says there's a very simple path to resolve all the issues on appeal.

[00:06:15] Speaker 00:
It's my first point.

[00:06:17] Speaker 00:
Reverse the district court's entry of judgment and allow CODA its one opportunity to amend.

[00:06:21] Speaker 00:
So I think it makes the most sense to be practical.

[00:06:24] Speaker 00:
CODA has filed an amended complaint.

[00:06:27] Speaker 04:
It is a very detailed... By the way, why couldn't you have had that level of detail in the complaint?

[00:06:34] Speaker 04:
In the groove and so on.

[00:06:37] Speaker 00:
I suppose we could have.

[00:06:38] Speaker 00:
These are facts that were in our possession.

[00:06:41] Speaker 00:
This is not a newly discovered evidence case.

[00:06:43] Speaker 00:
We're not in here under that prong of Rule 59.

[00:06:46] Speaker 00:
These are facts that were in our possession.

[00:06:48] Speaker 00:
I think the answer is, this almost sounds flip, we're not in Germany.

[00:06:53] Speaker 00:
This is not a civil law jurisdiction.

[00:06:54] Speaker 00:
This is notice pleading.

[00:06:56] Speaker 00:
And we're not required to.

[00:06:58] Speaker 00:
If it were the case, and what's more important... Can I just ask, just before I forget?

[00:07:04] Speaker 00:
Sure.

[00:07:05] Speaker 05:
The amendment complaint that you're talking about here also removes some of the allegations, right?

[00:07:10] Speaker 05:
It cleans up some of the stuff.

[00:07:11] Speaker 00:
It does.

[00:07:12] Speaker 00:
And a number of claims.

[00:07:16] Speaker 00:
So we very much streamline the case down to the inventorship claim and the trade secrets claim.

[00:07:23] Speaker 00:
That's really all that's left.

[00:07:25] Speaker 00:
And it's still the same core set of facts, right?

[00:07:28] Speaker 00:
It's still the case is still about Cota and Goodyear meeting, Goodyear not having anything with SIT going on.

[00:07:36] Speaker 00:
And then right after that, Goodyear is filing for patent applications.

[00:07:39] Speaker 00:
So that's still the core.

[00:07:40] Speaker 03:
Can I clarify, if we agree that the original complaint was sufficient to pass a motion to dismiss, you'd still rather go forward on the amended complaint?

[00:07:51] Speaker 00:
Yes, Your Honor.

[00:07:52] Speaker 00:
And in fact, we would go in and renew our Rule 59 motion because we just think it would be confusing otherwise.

[00:08:03] Speaker 05:
If we were inclined to do so, it would save a lot of potential hassles if we let the district court know that

[00:08:12] Speaker 05:
I mean, I guess the question is, I assume you want us to do this so that we don't leave open the possibility that you're going to be stuck with your original complaint.

[00:08:24] Speaker 00:
Correct, Your Honor.

[00:08:25] Speaker 00:
Correct, Your Honor.

[00:08:27] Speaker 00:
We think the most practical thing is to move forward on the amended complaint.

[00:08:31] Speaker 00:
However, we would very much like to not be here again a year from now.

[00:08:36] Speaker 05:
They may renew a motion to dismiss on an amended

[00:08:39] Speaker 00:
We understand that.

[00:08:42] Speaker 00:
That's perfectly acceptable.

[00:08:45] Speaker 00:
Defendants are allowed to move to dismiss amended complaints as though they're allowed to dismiss original complaints.

[00:08:51] Speaker 00:
What we think would be improper, however, is to repeat all the same mistakes.

[00:08:55] Speaker 00:
For example, on the inventorship claims and the trade secret claims, we don't think it would be appropriate to go another round and

[00:09:03] Speaker 00:
to have Goodyear come in and argue on a motion to dismiss about the merits, specifically about whether COTA's trade secret claims were publicly disclosed.

[00:09:11] Speaker 00:
So while we would like to go forward on the amended complaint, we would request that this court address the propriety of engaging in an analysis of the merits, in particular whether COTA's trade secrets were in fact publicly disclosed.

[00:09:25] Speaker 05:
Can I just ask you about that?

[00:09:26] Speaker 05:
Maybe I'm just confused because there's so many complaints.

[00:09:28] Speaker 05:
I thought that the problem you had

[00:09:31] Speaker 05:
with what the district court did or how things went down, you were precluding them in a motion to dismiss from raising all of this stuff in terms of the claims and the prior art.

[00:09:42] Speaker 05:
I thought the concern was that they had only come in in the reply phase, and therefore you didn't have an opportunity to respond.

[00:09:50] Speaker 05:
Am I misunderstanding?

[00:09:51] Speaker 05:
It seems to me like now you're kind of getting involved with what they could have raised in the first instance in the motion to dismiss.

[00:09:58] Speaker 00:
So Your Honor, I think we raised both issues.

[00:10:01] Speaker 00:
Cota does have a concern about the fact that Goodyear raised Mr. Fraubel's article and made its argument for the first time on reply, and that Cota was not afforded an opportunity to respond to that.

[00:10:16] Speaker 00:
Absolutely.

[00:10:16] Speaker 05:
But that doesn't go to the fact that they cannot raise it in the first instance in the original motion to dismiss, at which point you would have an opportunity to reply to it.

[00:10:26] Speaker 05:
Correct.

[00:10:26] Speaker 05:
It would fix that, right?

[00:10:28] Speaker 00:
Well, Your Honor, COTA's position is that it would be a conversion at that point.

[00:10:33] Speaker 00:
That's correct.

[00:10:34] Speaker 00:
And I believe COTA did argue that.

[00:10:36] Speaker 00:
If Goodyear wants to come back and argue on a motion to dismiss that COTA's trade secrets were publicly known, and they want to submit prior art extraneous to the complaint, it's not referenced in the complaint to make that argument, that requires conversion to a motion for summary judgment.

[00:10:53] Speaker 00:
And it's really premature.

[00:10:54] Speaker 04:
And as this court has held numerous times... Can you make a 56F argument about discovery?

[00:11:00] Speaker 00:
Exactly, Ron.

[00:11:01] Speaker 00:
So this court deals with, as everybody knows, patent infringement cases all the time.

[00:11:06] Speaker 00:
The equivalent here is you get a patent infringement case where there's a motion to dismiss and the defendant argues the assertive patents are invalid.

[00:11:14] Speaker 00:
Look at all this prior art.

[00:11:16] Speaker 00:
There's 200 pieces of prior art and there's all kinds of obvious arguments and all you have to do is take judicial notice of the prior art and we can do our anticipation and obviousness analysis.

[00:11:24] Speaker 00:
Let's get to it right here, right on motion to dismiss.

[00:11:28] Speaker 00:
I don't know if that's ever happened.

[00:11:31] Speaker 00:
I don't believe it.

[00:11:31] Speaker 00:
It's not appropriate and it just doesn't happen.

[00:11:35] Speaker 00:
And the reason is because you're getting into the merits on the motion to dismiss.

[00:11:40] Speaker 04:
And you're going to want to do discovery.

[00:11:41] Speaker 00:
You're going to want to do discovery.

[00:11:42] Speaker 00:
And there's a number of opinions from this court that points out that it is exactly this sort of analysis.

[00:11:48] Speaker 00:
comparing a patent or intellectual property to the prior art that requires expert analysis.

[00:11:55] Speaker 00:
That's exactly why we supplied with our amended complaint an expert declaration from Dr. Klopp.

[00:12:01] Speaker 00:
It's also why we supplied a factual declaration from Mr. Hrabel.

[00:12:06] Speaker 00:
All those issues are the issues you're going to have to get into to determine whether or not, what Goodyear argues, which is

[00:12:16] Speaker 00:
a tube in the sidewall in the bending region of its own patent that it said was the novel basis to have that patent granted, Goodyear's now arguing that somehow that was known, I guess invalidating its own patent, in Mr. Hoble's article.

[00:12:33] Speaker 03:
That's what confuses me a little bit.

[00:12:35] Speaker 03:
I assume they disagree with the facts, but your allegations at least are

[00:12:40] Speaker 03:
their patents are coextensive with your client's trade secrets.

[00:12:45] Speaker 03:
Is that right?

[00:12:45] Speaker 03:
Correct, Your Honor.

[00:12:46] Speaker 03:
So, and if you're correct on that, then if their response is it's not a trade secret because there's prior art, then doesn't that automatically invalidate their patents too?

[00:12:56] Speaker 00:
Which is exactly why we were floored when we saw their reply.

[00:12:59] Speaker 03:
So there must be some, at least in their view, distinctions between your trade secrets and their patents.

[00:13:06] Speaker 03:
But we don't know any of this.

[00:13:07] Speaker 00:
And it's not an issue for a motion to dismiss in any event.

[00:13:11] Speaker 00:
That's a factual issue.

[00:13:13] Speaker 00:
To be clear, Mr. Frable's 2008 article that Goodyear identified in its reply discloses a pump tube in the bead of the tire, which is very rigid, and pushes against the rim, which is another very rigid member.

[00:13:33] Speaker 00:
Those physics are different than when you move a pump tube to what's called a bent tube, more up in the sidewall, in the middle part of the sidewall of the tire.

[00:13:42] Speaker 00:
There, the rubber moves in different ways.

[00:13:45] Speaker 00:
And Mr. Proble was able to, with a tube in that area, create sufficient pumping pressure to inflate a tire, where that wasn't the case when he tried on the rim.

[00:13:56] Speaker 00:
That was his first iteration.

[00:13:58] Speaker 00:
So the article is about his first iteration, which he could never get to work,

[00:14:02] Speaker 00:
putting the tube down by the rim.

[00:14:04] Speaker 00:
In the prosecution history of the 586 patent, Goodyear distinguished not one, but two patents that had tubes down on the rim.

[00:14:12] Speaker 00:
And we've got this in our brief, so I won't waste the time quoting it now.

[00:14:15] Speaker 05:
And you're in your rebuttal, so why don't we hear from the other side.

[00:14:19] Speaker 05:
Thank you.

[00:14:33] Speaker 04:
Good morning, Your Honors.

[00:14:36] Speaker 04:
On page two of the Red Brief, it says that COTA alleged in its complaint that it disclosed the very same purportedly secret technology at trade shows and to third parties in 2008.

[00:14:53] Speaker 04:
That's about most of the way down, second paragraph.

[00:14:58] Speaker 04:
Isn't that a question of fact?

[00:15:00] Speaker 01:
No, Your Honor, and in fact,

[00:15:02] Speaker 01:
Judge Wallach, if I could just tell the court very briefly how I intend to structure my argument, because that's the first point I'm going to get to.

[00:15:09] Speaker 01:
But the first thing I want to address is the plausibility standard of Twombly and Iqbal.

[00:15:13] Speaker 01:
We didn't hear anything about that in my friend's opening statement here.

[00:15:17] Speaker 01:
And that's exactly why this case was properly, the original complaint was properly dismissed.

[00:15:23] Speaker 01:
The other two points I would follow with is that under Sixth Circuit law,

[00:15:27] Speaker 01:
either allowing a motion to amend when they didn't ask for a motion to amend before judgment is an abuse of discretion standard, and it's not an abuse under Sixth Circuit law.

[00:15:37] Speaker 01:
And it's certainly not an abuse to deny it after judgment, again, when it wasn't asked for during this time.

[00:15:42] Speaker 05:
Yeah, but the timing of this was a little, you know, it was a little difficult to anticipate that after there were two months, there was a motion pending before the district court judge, which was sat on for nine months, almost a year maybe.

[00:15:54] Speaker 05:
And then, as your friend pointed out,

[00:15:56] Speaker 05:
unless you think he even tells he's wrong, she simultaneously granted the motion to dismiss at the same time she ruled on the motion.

[00:16:06] Speaker 01:
As a procedural matter, Chief Judge Prost, he's exactly right.

[00:16:09] Speaker 01:
But what I will tell you that he's wrong about is this notion that they didn't have an opportunity to amend.

[00:16:14] Speaker 01:
And let me give you, let me first, I think I haven't yet answered Judge Wallach's question.

[00:16:19] Speaker 04:
You haven't, and you're assuming that we agree with you that

[00:16:24] Speaker 04:
Twombly and Ickball apply and that the facts that are alleged aren't, in fact, compelling.

[00:16:33] Speaker 01:
Well, Your Honor, in fact, Twombly and Ickball do apply.

[00:16:36] Speaker 01:
They were applied by the district court.

[00:16:39] Speaker 01:
There was no argument that they don't apply.

[00:16:40] Speaker 01:
And in fact, that's the standard.

[00:16:42] Speaker 01:
Well, of course they apply.

[00:16:47] Speaker 01:
Here's why they apply specifically here, Judge Wallach.

[00:16:50] Speaker 01:
These are trade secret type

[00:16:52] Speaker 01:
complaints here, even in the context of the correction of inventorship.

[00:16:56] Speaker 01:
Their claim is that this is a secret, okay?

[00:16:59] Speaker 01:
Now what the complaint says is all over the map with regard to secret.

[00:17:04] Speaker 01:
It refers to self-inflating tire technology as the trade secret and things related to that.

[00:17:11] Speaker 01:
Yes, it says that.

[00:17:12] Speaker 01:
What else does it say about the self-inflating tire technology?

[00:17:15] Speaker 01:
It also says it was publicly displayed at trade shows.

[00:17:19] Speaker 01:
It also says about the self-inflating tire technology

[00:17:22] Speaker 01:
that it was given awards for being so great.

[00:17:26] Speaker 01:
All of this happening, by the way, many years in advance of the Goodyear Act.

[00:17:31] Speaker 04:
And did they say that they disclosed how to do that?

[00:17:35] Speaker 01:
There is nothing.

[00:17:36] Speaker 01:
And in fact, that was what our motion to dismiss was based on.

[00:17:40] Speaker 01:
These contradictory, conflicting allegations.

[00:17:43] Speaker 01:
In Sixth Circuit law, the case of Bailey versus Ann Arbor says

[00:17:47] Speaker 01:
internally contradictory factual pleadings make allegations implausible.

[00:17:53] Speaker 01:
We said that to the district court and they did that and... Supposing we read it as not internally contradictory.

[00:17:59] Speaker 01:
Well, I'm not sure how you can read saying things have been publicly displayed, publicly disclosed.

[00:18:06] Speaker 01:
A properly judicially noticeable PCT patent that they filed disclosed much of this.

[00:18:12] Speaker 01:
In fact, we would say all of it.

[00:18:13] Speaker 01:
That's, by the way, all that the article, the horrible article does.

[00:18:18] Speaker 01:
It starts with saying, in a CODA patent, all of these things were disclosed.

[00:18:23] Speaker 01:
The very first sentence of that article talks about the patent.

[00:18:26] Speaker 01:
So that article is really just summarizing.

[00:18:28] Speaker 04:
Where was that tube located?

[00:18:31] Speaker 01:
Where was that tube located?

[00:18:33] Speaker 01:
Well, if you look at the PCT patent, it disclosed a tube in a sidewall.

[00:18:38] Speaker 01:
That's an appendix 354.

[00:18:40] Speaker 01:
But that same application says, referring to figure 7A,

[00:18:44] Speaker 01:
that although the chamber one in the examples is placed mainly to the tire for bead, it can also be created while keeping the considerable portion of the design advantages anywhere else in the wall or at the wall of the tire.

[00:19:00] Speaker 01:
So their own patent says put it anywhere in the wall and it'll be fine.

[00:19:05] Speaker 01:
So they've already disclosed to the world everywhere in the world, everywhere in the wall is okay.

[00:19:10] Speaker 01:
This is not a trade secret.

[00:19:12] Speaker 01:
They wrote articles about it.

[00:19:13] Speaker 01:
That's what the Red Bull article says.

[00:19:14] Speaker 01:
They wrote articles about their own patent.

[00:19:17] Speaker 01:
That's what the video shows.

[00:19:18] Speaker 01:
There's nothing secret here.

[00:19:21] Speaker 01:
And all we did, from Goodyear's perspective, is to say, in our motion to dismiss, these are implausible.

[00:19:29] Speaker 05:
And what the district court said, at least in part, there's a statute of limitations problem, an argument that you did not raise, right?

[00:19:39] Speaker 01:
Well, the only argument that we didn't raise was, in the particular language that the district court used, was the one about suspect conduct.

[00:19:47] Speaker 01:
What we did say was that Cota was a frequent filer that kept tabs on what was going on in this area.

[00:19:55] Speaker 01:
That along with the Goodyear patent should have given them ample notice more than four years before their lawsuit.

[00:20:04] Speaker 01:
But if I can come back to the plausibility problem, this is the first opportunity.

[00:20:08] Speaker 01:
You don't have to wait for a court to tell you that your claims are bad before you get to amend.

[00:20:16] Speaker 01:
You don't have to sit around and wait for that because that's the first opportunity that they had.

[00:20:21] Speaker 01:
We told them that their claims were implausible.

[00:20:24] Speaker 01:
And they decided to double down.

[00:20:26] Speaker 01:
And it's really sort of obnoxious, honestly, when you look back at it.

[00:20:31] Speaker 01:
They said, Goodyear knows what it took.

[00:20:35] Speaker 05:
Tell us which documents you're talking about.

[00:20:39] Speaker 01:
The original complaint and then the motion to dismiss.

[00:20:42] Speaker 01:
And then they respond to that and say, we don't need to give you any more information because Goodyear knows what it took.

[00:20:49] Speaker 05:
Okay, and then you've got your reply and you're not disputing that you're coming in with all of this new stuff that deals with the prior art.

[00:20:57] Speaker 01:
I wouldn't say it's all this new stuff.

[00:20:58] Speaker 01:
It is responsive to the arguments that were made in opposition.

[00:21:03] Speaker 02:
But it's not in the complaint.

[00:21:06] Speaker 01:
It's not in the complaint.

[00:21:07] Speaker 02:
It's additional material.

[00:21:08] Speaker 01:
It is material.

[00:21:10] Speaker 02:
I mean, based on that alone, why shouldn't it have been converted to a Rule 56 judgment?

[00:21:15] Speaker 01:
Because all of the additional material was judicially noticeable.

[00:21:18] Speaker 01:
And again, under Sixth Circuit law, and this is the City of Monroe case at footnote one, a court may take account of judicially noticeable materials and rule it on a rule 12b6 motion of business.

[00:21:28] Speaker 05:
Well, you didn't just put in the materials.

[00:21:30] Speaker 05:
You made arguments with respect to the materials.

[00:21:32] Speaker 05:
And those arguments are really bound to how experts would consume the prior art, what the claim said.

[00:21:40] Speaker 05:
So you did more than just say, and by the way, here are the attachments.

[00:21:45] Speaker 01:
And I would say, Chief Judge Crost, that if you... Well, we certainly did that.

[00:21:49] Speaker 01:
And the main point was with regard to the trade secret allegations.

[00:21:53] Speaker 01:
We're trying to show, look, their allegations are implausible and look at all of these things that disclose these things that are within what they're now claiming are trade secrets.

[00:22:03] Speaker 01:
This is why it's so implausible.

[00:22:05] Speaker 01:
This is why this complaint has to be dismissed.

[00:22:08] Speaker 01:
You didn't do that in the first instance.

[00:22:11] Speaker 05:
Did you not contemplate that there would be a need or possibility that it would be fair to allow the other side to respond to what you inserted?

[00:22:21] Speaker 01:
With regard to the prosecution history aspects of things, that was directly responsive.

[00:22:30] Speaker 01:
With regard to the Hrabel article, we thought that was coextensive with the properly judicially noticeable PCT

[00:22:37] Speaker 01:
patented and just elaborated on it.

[00:22:41] Speaker 05:
I believe we did.

[00:22:47] Speaker 01:
I think that's at page 897.

[00:22:49] Speaker 01:
So what I think you have here, again, I want to get back to this notion

[00:22:55] Speaker 01:
uh... the teachers post that they did not have an opportunity to amend that somehow or another that the uh... district court's ruling in judgment in september two thousand sixteen was really their first opportunity to admit is again when we file or you can always amended as a variety that was a bright twenty one days within within twenty one days of the filing of a dispositive twelve b motion that they could have done they didn't do it they could have been so i don't know is

[00:23:25] Speaker 04:
You used the word obnoxious in describing the appellant's position that Goodyear should have known.

[00:23:38] Speaker 04:
Speaking hypothetically, if Goodyear did indeed steal this technology, why is it obnoxious to say they should have known, they stole it, other than you don't like

[00:23:50] Speaker 04:
saying he stole it.

[00:23:51] Speaker 01:
No, no, no.

[00:23:52] Speaker 01:
That's not the obnoxious part about it all.

[00:23:53] Speaker 01:
The obnoxious part about it is, and this is unfortunately a standard feature of trade secret cases, is that the plaintiff comes in and pleads a trade secret case and says, my secrets are all these things.

[00:24:06] Speaker 01:
And the defendant comes in and says, look, you have just contradicted yourself six ways from Sunday.

[00:24:11] Speaker 01:
in this complaint.

[00:24:12] Speaker 01:
We don't know what it is that you say we took.

[00:24:15] Speaker 04:
That's why you have motions for a more definite statement.

[00:24:17] Speaker 01:
Well, in effect, we didn't make that motion.

[00:24:20] Speaker 01:
But in effect, we're saying that you don't meet the Twombly Iqbal standard.

[00:24:26] Speaker 01:
So dismiss.

[00:24:28] Speaker 01:
Now, you've got an opportunity.

[00:24:29] Speaker 01:
That's exactly what Rule 15 allows.

[00:24:31] Speaker 01:
Within 21 days, sensible, you have an opportunity.

[00:24:35] Speaker 01:
So that I want to make clear.

[00:24:38] Speaker 01:
They had an opportunity to amend at that point.

[00:24:40] Speaker 01:
They instead decided to double down and say Goodyear knows what it took.

[00:24:44] Speaker 01:
Well, first of all, even if we're talking about the sort of bare pretwombly notice pleading that we all learned about in law school where putting three sentences in a complaint is enough and that's not enough after the plausibility standard.

[00:24:58] Speaker 01:
But even if that were enough, saying you know what you did is innuendo.

[00:25:03] Speaker 01:
It doesn't give us fair notice.

[00:25:05] Speaker 01:
Because quite frankly, our position is that what we did

[00:25:09] Speaker 01:
is to invent something, and that anything that we learned from CODA was public record stuff.

[00:25:17] Speaker 01:
It wasn't a trade secret at all.

[00:25:19] Speaker 01:
So it's their obligation, if they're going to sue us, to tell us what it is that they say we took.

[00:25:27] Speaker 01:
Judge Wallach, this is important.

[00:25:28] Speaker 01:
It's still notice pleading.

[00:25:29] Speaker 01:
It is notice pleading, but that gives us at least an opportunity to respond by saying, aha, that's not secret.

[00:25:36] Speaker 01:
That's something that you actually disclosed in your own judicially noticeable patent.

[00:25:41] Speaker 01:
And you get rid of expensive litigation at the outset because you know what's going on.

[00:25:46] Speaker 01:
That's why you have motions for more definite statements.

[00:25:49] Speaker 01:
Well, the fact of the matter is that our motion to dismiss, for all practical purposes, should have been, for them, a clue that they needed to amend if they had something.

[00:25:59] Speaker 01:
And I think when I use the term obnoxious, that's a word I'm not prone to use.

[00:26:05] Speaker 01:
But I chose it carefully here, because it really does sort of say, it's innuendo of the sort that you go, this is not, I'm not going to tell you what you did, but you know you did it, and you're guilty of it.

[00:26:22] Speaker 01:
And somehow or another, all of a sudden, it's our burden to unplead their innuendo.

[00:26:27] Speaker 01:
That's not the plausibility standard.

[00:26:29] Speaker 01:
Now, if I could just turn very quickly to the other two points about

[00:26:33] Speaker 01:
the post-judgment motion to amend.

[00:26:36] Speaker 01:
The Sixth Circuit law here forecloses the relief that they're asking for.

[00:26:41] Speaker 01:
Both of those are abusive discretion standard.

[00:26:46] Speaker 01:
They say that the district court abused its discretion by not sui sponte granting leave to amend.

[00:26:52] Speaker 01:
But COTA never asked to amend beforehand, and as I said, they have plenty of opportunities to do so.

[00:26:56] Speaker 04:
Do you allege any prejudice

[00:27:01] Speaker 01:
uh... as a reason to go on and to deny the motion to amend it well we've there is there is a prejudice aplenty for prejudice is not required by the rule fifty nine standard but the prejudice of the prejudices plenty is according and it's exactly what we're talking about here it is having to defend it and invest substantial amounts of money against it a complaint that was not properly made was not properly amended at any point when i was a little bit so so on and continues to put a cloud onto this line of business

[00:27:30] Speaker 01:
But let me just make sure that I... Well, maybe it's not special prejudice, but the fact is that they could have eliminated this prejudice by doing things properly, and they didn't.

[00:27:41] Speaker 01:
I just want to make sure to get across to the court the two Sixth Circuit cases or the lines of Sixth Circuit cases, because this court has to apply that circuit's law here.

[00:27:51] Speaker 01:
With regard to the claim of abusive discretion for failing to give leave to amend in the dismissal order,

[00:27:58] Speaker 01:
Ohio Police and Fire says, quote, if a party does not file a motion to amend or a proposed amended complaint, it is not an abuse of discretion for the district court to dismiss the claims with prejudice.

[00:28:13] Speaker 01:
That's exactly what this court did here.

[00:28:15] Speaker 01:
Sure.

[00:28:15] Speaker 03:
I mean, we can agree with you on all of that, that assuming she's right on the initial complaints and sufficiency, it wasn't an abuse not to allow them to amend.

[00:28:25] Speaker 03:
But if we disagree with you on the initial

[00:28:27] Speaker 03:
claim sufficiency and reverse her on that, can I ask you what we asked your friend?

[00:28:35] Speaker 03:
Is there anything you would object to in them now going forward with the amended complaint?

[00:28:42] Speaker 03:
Or are you going to hold them to the original complaint, which we now find sufficient?

[00:28:46] Speaker 01:
I think the answer is that we, if I understand the hypothetical, is that the case gets remanded.

[00:28:55] Speaker 01:
That would be that there is, you would say that there is a validly pled complaint here on the two sets of claims that they've still got going forward.

[00:29:02] Speaker 01:
That would effectively be all that you're doing.

[00:29:04] Speaker 01:
Then I think it's up to the district court under that circumstance to decide whether the rule 59, do I have that right?

[00:29:13] Speaker 01:
So whether the justice requires, whether justice requires.

[00:29:19] Speaker 03:
I mean, assuming we reverse her on the 12B motion,

[00:29:24] Speaker 03:
and say this complaint was sufficient, is there anything that prevents them from now going forward and saying, well, we'd like to go forward with the amended complaint?

[00:29:33] Speaker 01:
I think then they'll have to make whatever showing is appropriate in that circumstance to show that they are entitled to amend at this point.

[00:29:42] Speaker 05:
And do you want to hypothetically give us the arguments that one would make against that?

[00:29:50] Speaker 01:
The hypothetical, I don't think, I don't have any idea that we would have any hypothetical arguments if we were on simply an interest of justice standard at that point.

[00:29:59] Speaker 01:
It might very well be a complaint that's futile because we haven't yet explored whether it states any claims any better.

[00:30:06] Speaker 01:
Just because it's longer, it doesn't make it better.

[00:30:08] Speaker 01:
But futility could be an example.

[00:30:11] Speaker 05:
We could be here again in two years from now doing the same thing.

[00:30:16] Speaker 01:
We could be, but we shouldn't be.

[00:30:17] Speaker 01:
And that's why I would urge the court to affirm.

[00:30:20] Speaker 01:
My last point, and I'm sorry, I know I'm into the red time here, but the last point I wanted to make is... Thank you for at least acknowledging it.

[00:30:28] Speaker 01:
It's the end of the day.

[00:30:29] Speaker 01:
I'm sorry, Your Honor.

[00:30:31] Speaker 01:
I was just trying to get out the last point, but the cases that you want to look at with regard to the denial of the Rule 59 motion and the need to amend at that late date are Leisure Caviar and Begala.

[00:30:44] Speaker 01:
Both of those say, again, in much the same language as Ohio Police and Fire.

[00:30:48] Speaker 01:
It is not an abuse of discretion at that point in the case for a court to deny leave to amend post-judgment.

[00:30:55] Speaker 05:
And those are cited in the brief?

[00:30:56] Speaker 01:
Those are cited in the brief.

[00:30:58] Speaker 01:
I'm not giving you anything new.

[00:30:59] Speaker 01:
Thank you, Your Honor.

[00:30:59] Speaker 01:
Thank you.

[00:31:03] Speaker 00:
Your Honor, that is absolutely not what Ohio Police and Fire says.

[00:31:07] Speaker 00:
That's a sleight of hand that's been going on nonstop.

[00:31:09] Speaker 00:
And I have to address it.

[00:31:11] Speaker 00:
Ohio Police and Fire says that, according to Goodyear, the default rule, this is page 33 of their red brief, the default rule

[00:31:18] Speaker 00:
is that if a party does not file a motion to amend or a proposed amended complaint in the district court, it doesn't say before judgment.

[00:31:25] Speaker 00:
It says in the district court.

[00:31:27] Speaker 00:
Then it's not an abuse of discretion to refuse leave to amend.

[00:31:31] Speaker 00:
CODA did file in the district court, filed post-judgment.

[00:31:34] Speaker 00:
And if you read Ohio Police and Fire, it expressly says a plaintiff has three opportunities to amend, once under 15A1 as of right within 21 days of seeing a motion dismissed.

[00:31:44] Speaker 00:
Two, freely after that, if you don't take advantage of your as of right period when justice so requires.

[00:31:51] Speaker 00:
And three, citing more swimming water, the case we rely on after final judgment, but before appeal.

[00:31:59] Speaker 00:
Under Rule 59, moving to alter the judgment in exactly the way we did.

[00:32:03] Speaker 00:
Page 33, this is the beginning of Goodyear's appeal addressing

[00:32:09] Speaker 00:
the amendment issue.

[00:32:11] Speaker 00:
The first thing they say is this default rule.

[00:32:13] Speaker 00:
They say it right, because they have to, because they're quoting it.

[00:32:16] Speaker 00:
And then on the very next page, they switch from in the district court, you have to do it, to before judgment.

[00:32:21] Speaker 00:
It's a sleight of hand, did it three times up here at this podium, and it's wrong, and that you have to pay attention to.

[00:32:27] Speaker 00:
Because their primary case they rely on says you get to do it in a district court.

[00:32:35] Speaker 00:
My last point, because I think I have about 30 seconds left.

[00:32:39] Speaker 00:
You've got some extra time there.

[00:32:41] Speaker 00:
Thank you.

[00:32:42] Speaker 00:
I was surprised.

[00:32:43] Speaker 00:
I couldn't do the math.

[00:32:43] Speaker 00:
Don't thank me.

[00:32:44] Speaker 00:
Thank the chief.

[00:32:46] Speaker 00:
Okay.

[00:32:47] Speaker 00:
So trade secret pleading allegations.

[00:32:52] Speaker 00:
There is a Southern District of Ohio case.

[00:32:55] Speaker 00:
REXAM is Southern District of Ohio, but it is construing the Ohio trade secret statute.

[00:33:02] Speaker 00:
Williamson v. REXAM beverage can.

[00:33:04] Speaker 00:
And it was a motion for a more definite statement.

[00:33:08] Speaker 00:
Williams completed a unique and highly valuable process for welding metal seams using ultrasonic welding technology.

[00:33:15] Speaker 00:
That's the trade secret allegation.

[00:33:17] Speaker 00:
That was held sufficient.

[00:33:19] Speaker 00:
That was the issue.

[00:33:20] Speaker 00:
Is that sufficient?

[00:33:20] Speaker 00:
And yes, it was held sufficient.

[00:33:23] Speaker 00:
Added to that, and by the way, CODA identifies four categories at exactly that level of specificity.

[00:33:30] Speaker 00:
So not just where this is ultrasonic welding technology generally, CODA identifies four specific categories within SIT.

[00:33:38] Speaker 00:
And it gave the what, the when, and the how.

[00:33:41] Speaker 00:
And that's what RecSAM says.

[00:33:43] Speaker 00:
In addition, it said when those trade secrets were disclosed, at what meetings, and exactly who was there, and what they looked at, the prototype.

[00:33:50] Speaker 00:
So the other, you know, there's also this notion that we had all these opportunities to address this prior art issue.

[00:33:59] Speaker 00:
If you look at the Fuma case, the Fuma case says that's entirely inappropriate.

[00:34:03] Speaker 00:
It lays out what's relevant on a 12b6.

[00:34:07] Speaker 00:
The court must construe the complaint in the light most favorable to the non-moving party, accept all factual allegations as true, make reasonable inferences on behalf of the plaintiff.

[00:34:17] Speaker 00:
The court's inquiry is limited to the content of the complaint, et cetera, et cetera.

[00:34:20] Speaker 00:
And this, I think, is very important.

[00:34:22] Speaker 00:
It says, in deciding a Rule 26 motion, a court must be sure to determine not whether the complaining party will prevail in the matter, but whether it is entitled to offer evidence

[00:34:32] Speaker 00:
to support the claims made in this complaint.

[00:34:34] Speaker 00:
These are all beefs that we're going to have through the course of the case and that parties do have in the course of the case.

[00:34:40] Speaker 00:
They just don't have them on the motion for 12b6.

[00:34:45] Speaker 00:
I think the other thing that's instructive about FUMA is when you're saying, when a defendant comes in and says there should be more allegations, think about what allegations they're asking for.

[00:34:55] Speaker 00:
FUMA says, defendant's argument is not well taken.

[00:34:57] Speaker 00:
As plaintiff notes, under the well-pleaded complaint rule,

[00:35:00] Speaker 00:
the court may look only to plaintiff's complaint and not to any defenses or counterclaims asserted by the defendants.

[00:35:06] Speaker 00:
An argument suggesting that plaintiff must defend all possible factual disputes in his complaint goes well beyond any required standard for pleading allegations in the complaint itself.

[00:35:17] Speaker 00:
So what COTA absolutely doesn't have to do according to controlling Northern District of Ohio law, FUMA, 2015 decided two months before we filed our complaint, we don't have to

[00:35:29] Speaker 00:
pre-but, in a sense, all of Goodyear's arguments that they're going to make.

[00:35:35] Speaker 05:
OK.

[00:35:35] Speaker 05:
We're now out of time.

[00:35:36] Speaker 05:
We thank both sides.

[00:35:37] Speaker 00:
Thank you.