[00:00:03] Speaker 00:
The first case for argument this morning is 171502, John Bean Technologies versus Morris Associates.

[00:00:11] Speaker 00:
Mr. Martz, whenever you're ready.

[00:00:20] Speaker 02:
Good morning.

[00:00:21] Speaker 02:
May it please the court?

[00:00:22] Speaker 02:
I'm Gary Martz.

[00:00:23] Speaker 02:
I'm here to be the appellant of John Bean Technologies Corp.

[00:00:27] Speaker 02:
And the issue on appeal for the court is the

[00:00:31] Speaker 02:
district judges ruling.

[00:00:34] Speaker 03:
In the blue brief at 21 to 23, you argue that Equal Will Establishment may only be found when there is silence that follows, quote, a communication indicating that the patentee would take immediate action.

[00:00:48] Speaker 03:
And you say that's the only way.

[00:00:50] Speaker 03:
But in ABB Robotics, we explicitly said, quote, such an enforcement threat followed by silence, ellipsis, is not the only way

[00:01:00] Speaker 03:
that silence can be misleading in action.

[00:01:03] Speaker 03:
How do you reconcile that opinion with your position?

[00:01:06] Speaker 02:
I think the opinion reconciles with our position in this case, Your Honor, because in ABB Robotics, there was more that went on there than simply what happened in this case, which was the receipt of a letter followed by no action by my client.

[00:01:21] Speaker 02:
In ABB Robotics,

[00:01:24] Speaker 02:
there were extensive communications over several years involving the patent.

[00:01:28] Speaker 02:
And there was an explicit objection to the activities of the most infringement.

[00:01:33] Speaker 03:
Well, Morris provides a letter which says, we have received letters from your attorney that assert infringement of 037.

[00:01:41] Speaker 03:
Do you dispute that multiple letters were sent?

[00:01:45] Speaker 02:
That's a different patent.

[00:01:47] Speaker 02:
I know.

[00:01:47] Speaker 02:
That is a previous dispute between the parties that was

[00:01:53] Speaker 02:
involving an entirely different patent that was completely resolved.

[00:01:57] Speaker 03:
I understand, but why shouldn't we consider JBT's diligent enforcement of 037 in evaluating whether Morrison inferred that JBT did not intend to enforce 622?

[00:02:11] Speaker 02:
Because the interaction on the previous patent was of an entirely different nature from the patent that was involved in this case.

[00:02:19] Speaker 02:
That was a small dispute involving

[00:02:22] Speaker 02:
a component, an air header on an auger chiller.

[00:02:26] Speaker 02:
And that was resolved through communications between the parties, between executives of the two parties.

[00:02:34] Speaker 02:
And it was resolved for a payment of $12,000.

[00:02:38] Speaker 02:
The dispute here is of an entirely different nature.

[00:02:41] Speaker 02:
These are involving machines that are big industrial machines on poultry lines.

[00:02:46] Speaker 00:
Can I just interrupt that?

[00:02:51] Speaker 00:
I have some confusion about this case.

[00:02:54] Speaker 00:
And I don't know if there's an argument that you should have made that you just waived, or there's a reason this isn't four square in this case.

[00:03:01] Speaker 00:
But there was a re-exam here.

[00:03:03] Speaker 00:
And this complaint is based on the re-examined claims, which are significantly, I don't know what difference it makes, but there were substantial changes made to the original claims.

[00:03:14] Speaker 00:
The letter dealt with the original claims.

[00:03:18] Speaker 00:
Did you go into the district court and say, well, no, this letter has nothing to do with anything because this was about claims that are no longer in existence and the current litigation is about revised claims?

[00:03:31] Speaker 00:
That argument was not made at the district court.

[00:03:33] Speaker 00:
Do you think that's an argument that should have been made or that carries the day?

[00:03:38] Speaker 00:
I mean, it seems a little odd to me that all of this is about assertions made 15 or 12 years earlier

[00:03:47] Speaker 00:
about claims that don't even really exist in the same forms anymore.

[00:03:53] Speaker 00:
And those claims, as they existed, that were subject to the letter, are not the subject of the current dispute, right?

[00:04:02] Speaker 00:
So tell me why that's not a good argument.

[00:04:05] Speaker 00:
Whether it's waived or not, I'm just having a hard time getting it.

[00:04:09] Speaker 02:
That is correct, that this lawsuit was filed after the re-examination.

[00:04:13] Speaker 02:
I'm not sure why that argument wasn't made, to be honest.

[00:04:17] Speaker 00:
Well, on its face, as I said, I haven't examined the details of how the changes impact the infringement claims or anything like that.

[00:04:24] Speaker 00:
But just generally, is there an argument to be made that the claims are different enough so that whatever was going on 15 years ago with respect to that letter and the anticipation and the arguments your friend made about validity are kind of mooted out?

[00:04:42] Speaker 00:
By the current claim?

[00:04:43] Speaker 02:
I'm not sure, to be honest.

[00:04:45] Speaker 02:
I don't know that that was the case.

[00:04:47] Speaker 02:
I don't believe that there's significantly that different, that it would have made a tremendous amount of difference.

[00:04:54] Speaker 04:
Well, you had five new claims that were added.

[00:04:57] Speaker 04:
Yes.

[00:04:58] Speaker 04:
How can that not be significantly different?

[00:05:01] Speaker 02:
I honestly can't answer that.

[00:05:04] Speaker 02:
I mean, I think that

[00:05:11] Speaker 02:
The products are largely the same.

[00:05:13] Speaker 02:
And I know that the claims are slightly different following the re-examination.

[00:05:18] Speaker 02:
But I think that our belief was that that didn't change the calculus for the purposes of equitable estoppel.

[00:05:26] Speaker 02:
So that argument was not made.

[00:05:28] Speaker 02:
But I think that the more important point here is that there was no misleading conduct

[00:05:38] Speaker 02:
by Kat, the predecessor in interest to John Bean Technologies.

[00:05:42] Speaker 00:
Well, but as Judge Wallach alluded to, I mean, silence can be misleading conduct.

[00:05:48] Speaker 00:
So why isn't it the case that with their letter, they clearly anticipated a response or a rebuttal if one existed.

[00:05:56] Speaker 00:
So why couldn't they assume, they gave a very detailed analysis with respect to their invalidity contentions in that letter.

[00:06:04] Speaker 00:
And your failure to respond

[00:06:08] Speaker 00:
even to say, you're wrong, we're right, made them think fairly reasonably that you kind of agreed with their response and they were off the hook.

[00:06:21] Speaker 02:
Because that doesn't fit with this court's precedent in previous cases in which it's found misleading conduct.

[00:06:28] Speaker 02:
In previous cases where there's been misleading conduct, there's always been some sort of affirmative statement by the patentee

[00:06:36] Speaker 02:
that there was some sort of allegation of infringement or contention of infringement.

[00:06:41] Speaker 02:
But that's why 337 matters.

[00:06:45] Speaker 02:
Well, I think it's a different dispute involving a different patent.

[00:06:50] Speaker 03:
But look at it from our viewpoint.

[00:06:53] Speaker 03:
It's a pattern of practice.

[00:06:57] Speaker 03:
So your opponent gets to say, geez.

[00:07:04] Speaker 03:
When they want to enforce something, they know how to do it.

[00:07:08] Speaker 03:
They do it vigorously.

[00:07:10] Speaker 03:
And here, we answered them and said, hey, here's all our problems with your patent, and you leave us alone.

[00:07:18] Speaker 03:
Why not?

[00:07:20] Speaker 02:
Why doesn't it fit, in other words?

[00:07:22] Speaker 02:
It is just a tremendously different circumstance.

[00:07:25] Speaker 02:
That was, as the series of letters that are in the records show,

[00:07:29] Speaker 02:
That was a dispute that was handled between the parties, between executives of the parties, over a relatively small amount of money.

[00:07:36] Speaker 02:
I think the initial offer that was made to settle that dispute was $2,000.

[00:07:39] Speaker 02:
But that weighs towards them, not towards you.

[00:07:42] Speaker 02:
But I don't think that it does, Your Honor, because it's an entirely different set of circumstances.

[00:07:46] Speaker 02:
It was an entirely different sort of negotiation.

[00:07:50] Speaker 02:
The letter in this case that was sent in June of 2002 relating to the patent that's at issue

[00:07:58] Speaker 02:
was a very aggressive assertion by Morris's attorney that led off with, from our point of view, a false assertion.

[00:08:08] Speaker 02:
Why didn't you say that though?

[00:08:10] Speaker 02:
They just chose not to.

[00:08:12] Speaker 02:
But I don't think that it was misleading because there was never any sort of assertion of any kind of

[00:08:21] Speaker 02:
infringement or anything of that nature involving this patent in this particular dispute.

[00:08:26] Speaker 04:
There were allegations that claims of infringement were being made to to the customers.

[00:08:36] Speaker 02:
Those are hearsay and they don't factor into this analysis because the letter is actually sort of a multi-layered it's hearsay.

[00:08:43] Speaker 02:
It's not for the truth of the matter asserted.

[00:08:46] Speaker 02:
I think it is for the truth of the matter asserted if it's going to be treated as

[00:08:51] Speaker 02:
cat made an allegation of infringement.

[00:08:53] Speaker 04:
Not if we look at it from the point of view of being a threat.

[00:09:00] Speaker 04:
That they convey a threat of infringement, of bringing in action for infringement.

[00:09:07] Speaker 02:
I think it, I still think it is.

[00:09:12] Speaker 02:
I mean, I think that the content of the letter, which is itself your say,

[00:09:17] Speaker 02:
And you get down to two or three different layers of hearsay, and you finally get to the cat is saying that we alleged your patent.

[00:09:28] Speaker 02:
That's hearsay.

[00:09:29] Speaker 02:
I mean, to the extent that that's credited as that actually occurred, it is hearsay.

[00:09:34] Speaker 02:
And the other thing about that is, in the summary judgment context, is that statement is disputed.

[00:09:39] Speaker 02:
The cat disputes that ever happened, the salesman

[00:09:44] Speaker 02:
Jeff Tipton, who was identified by Morris as being the person who made that statement.

[00:09:50] Speaker 02:
More or less.

[00:09:51] Speaker 02:
Well, he denied that it happened.

[00:09:53] Speaker 02:
He denied that he ever had a conversation like that with the customer that Morris identified as being the customer who received that statement.

[00:10:00] Speaker 02:
So that's a disputed fact that that ever occurred.

[00:10:03] Speaker 02:
Jeff Tipton says he never had that conversation.

[00:10:05] Speaker 02:
Matter of fact, the timing doesn't work out because the only sale that Cat made to

[00:10:11] Speaker 02:
to Wayne Farms, that client, was more than a year before the patent was even issued.

[00:10:16] Speaker 02:
So there's a disputed fact issue on that point, even to the extent that the court considers the June 2002 letter as stating that there was some sort of infringement allegation.

[00:10:29] Speaker 00:
Well, let me ask you, you're seeking here, you're not saying as a matter of law, even if all of this is true, this wouldn't constict rise to the level of equitable estoppel and you ought to reverse.

[00:10:39] Speaker 00:
What this case is about is this is summary judgment.

[00:10:43] Speaker 00:
These are matters in dispute, factual dispute.

[00:10:46] Speaker 00:
And so it ought to be remanded for further inquiry, right?

[00:10:50] Speaker 02:
That is the argument that we made.

[00:10:51] Speaker 02:
Although I do believe that as a matter of law, even if the facts were accepted with regard to misleading conduct, this just doesn't- Do you make that argument in your brief?

[00:11:00] Speaker 02:
I don't believe so.

[00:11:01] Speaker 02:
So it's kind of a little late for that, right?

[00:11:04] Speaker 02:
Sure.

[00:11:06] Speaker 02:
I do believe as well that there's genuine issues of material fact on the issue of misleading conduct.

[00:11:12] Speaker 02:
There are also strong genuine issues of material fact.

[00:11:16] Speaker 00:
So what are the major facts that are in dispute, whether or not they contacted the customers or not, or whether the statements made by the customers?

[00:11:23] Speaker 02:
Well, with regard to misleading conduct, that is in dispute.

[00:11:25] Speaker 00:
OK, so that's the main thing.

[00:11:27] Speaker 02:
The allegation of the June 2002 letter is disputed.

[00:11:32] Speaker 02:
With regard to the other elements of equitable estoppel, with regard to reliance, there's a dispute as to whether Morris took actions that it took in reliance on CAT's not responding to the June 2002 letter.

[00:11:45] Speaker 02:
They claimed that they developed and sold their product because they believed that CAT was not going to take action.

[00:11:52] Speaker 02:
But one of their executives, Mr. Wright, testified that we would have made those investments anyway.

[00:12:00] Speaker 02:
And the question was posed to him very clearly.

[00:12:03] Speaker 02:
Are you saying that you did that because Kat didn't take action, or would you have done it anyway?

[00:12:09] Speaker 02:
And he said, we would have done it anyway.

[00:12:11] Speaker 02:
And that creates a genuine issue of material fact as to reliance.

[00:12:15] Speaker 02:
Also creating genuine issues of material fact as to reliance are the belief this court has held in the past that when the defendant has a strong belief that the patent is invalid,

[00:12:28] Speaker 02:
or that their product is not infringing, that there can't be summary judgment of reliance because that creates a genuine issue of material effect.

[00:12:36] Speaker 02:
And in this case, they clearly believed that the patent was invalid.

[00:12:41] Speaker 02:
They stated that in the George Thomas letter.

[00:12:44] Speaker 02:
They also stated that in their testimony in this case.

[00:12:47] Speaker 03:
That's Hall v. Aqua Queen manufacturing and so on.

[00:12:54] Speaker 03:
Yes.

[00:12:55] Speaker 03:
Under your interpretation of those cases,

[00:12:57] Speaker 03:
How can an alleged infringer that has a sincere belief that the patent's invalid ever assert equitable estoppel?

[00:13:10] Speaker 03:
So make it a really strong case for them.

[00:13:17] Speaker 03:
They send a letter saying your patent's invalid, and you write back and say, oh, we're really sorry.

[00:13:27] Speaker 02:
I think, Your Honor, the argument that... But they believe it's invalid.

[00:13:31] Speaker 02:
Sure.

[00:13:32] Speaker 02:
And the argument that we're making isn't that they couldn't assert equitable estoppel.

[00:13:35] Speaker 02:
The argument is that there's a genuine issue of material fact on that point, a point that has to be resolved by the fact finder, not its summary judgment.

[00:13:43] Speaker 02:
If they claim that they relied on the lack of a response to the letter, well, that's evidence from one side.

[00:13:50] Speaker 02:
But the other side of that is that their evidence is equivocal because Mr. Wright said otherwise.

[00:13:57] Speaker 03:
So really you're abandoning that argument from page 27 to 30 as far as it's a matter of law.

[00:14:06] Speaker 03:
Because you cite those cases and say they stand for this proposition.

[00:14:09] Speaker 02:
Yes.

[00:14:10] Speaker 02:
But I think our point is that there's a genuine issue of material fact on that point.

[00:14:14] Speaker 02:
And there are other genuine issues of material fact as well, the fact that they believe that their product was not infringing.

[00:14:21] Speaker 02:
established that testimony.

[00:14:22] Speaker 02:
They did not believe that their product was infringing.

[00:14:25] Speaker 02:
So that's another point.

[00:14:26] Speaker 02:
So what?

[00:14:27] Speaker 02:
That's my point.

[00:14:28] Speaker 02:
So what?

[00:14:29] Speaker 02:
The court has held in the past that that creates a genuine issue of material fact on reliance.

[00:14:34] Speaker 02:
And it also creates a genuine issue of material fact on credit.

[00:14:36] Speaker 03:
Then I ask my question again.

[00:14:37] Speaker 03:
How can somebody who genuinely believes they're not infringing ever assert a stopple?

[00:14:42] Speaker 02:
They assert a stopple, Your Honor, and they've set forth their facts that show their reliance.

[00:14:46] Speaker 02:
And if there's evidence from the other side, then that's something that has to be resolved

[00:14:51] Speaker 02:
by the fact-finder, not a summary judgment.

[00:14:54] Speaker 00:
So what's enough on the reliance?

[00:14:56] Speaker 00:
You talked about the reliance.

[00:14:57] Speaker 00:
So let's assume, OK, if we go back, we have a trial, whatever, inquiry.

[00:15:02] Speaker 00:
And they establish, they give sufficient evidence that, yes, they did rely on this.

[00:15:07] Speaker 00:
Beyond that, what needs to be disputed?

[00:15:10] Speaker 00:
Whether or not you contracted their customers or not, what does that mean?

[00:15:15] Speaker 02:
What other facts are we good at to mitigate?

[00:15:20] Speaker 02:
The issue of what is alleged in the George Thomas letter of June 2002 is also in dispute.

[00:15:27] Speaker 02:
And I think that would have to be something that is resolved as well.

[00:15:30] Speaker 02:
To the extent that that threat or that an allegation of infringement is being considered as part of the misleading conduct, that is something that would have to be discussed and determined by the fact finder as well, to the extent that there's a dispute on that point.

[00:15:47] Speaker 00:
Can you tell me what the dispute is then?

[00:15:49] Speaker 00:
I mean, the letter was sent and received.

[00:15:51] Speaker 02:
Sure.

[00:15:52] Speaker 02:
And there's no dispute about that.

[00:15:53] Speaker 00:
And we can all read the letter.

[00:15:54] Speaker 02:
To the extent that the allegations in the letter about, you know, what the letter says is that my client Morris tells me that customers have told them that representatives of CAT have told them that our product infringes your patent.

[00:16:17] Speaker 02:
And to the extent that that is considered to be an allegation of infringement or any sort of a threat, if that is going to be considered as a fact in the case and it's going to weigh into the analysis of whether there was misleading conduct from the standpoint of whether there was a threat or an allegation of infringement, that point is disputed because... Unless we turn it to the side and say truth of the matter asserted doesn't matter.

[00:16:43] Speaker 03:
They're simply coming to you.

[00:16:45] Speaker 03:
saying, we're hearing this stuff, and you internalize it and say, oh, poo, and don't respond.

[00:16:55] Speaker 03:
And so they say to themselves, they say, we said to ourselves, oh, hey, we're good.

[00:17:02] Speaker 03:
And they proceed along their merry way.

[00:17:06] Speaker 03:
So they're not asserting for the truth of the matter.

[00:17:09] Speaker 03:
Asserted is what I'm saying.

[00:17:11] Speaker 02:
Well, if the sole point is that they sent a letter,

[00:17:16] Speaker 02:
that said that they weren't infringing the patent.

[00:17:19] Speaker 02:
And that's all I think that that letter establishes is that a letter was sent claiming that Morris did not infringe the patent.

[00:17:27] Speaker 02:
And saying why?

[00:17:27] Speaker 02:
If that's all that occurred, there's no misleading conduct by Cat because there's no conduct by Cat.

[00:17:35] Speaker 02:
They ensue in silence.

[00:17:40] Speaker 04:
Setting aside the credibility of the

[00:17:44] Speaker 04:
of the threat, you know, whether Morris actually believed that contacts were being made with his customers.

[00:17:51] Speaker 04:
The letter informed your client, JBT, that there was no infringement and that if he continued on with what they thought were the contacts, it said, we're going to bring in action against you.

[00:18:07] Speaker 04:
After that, 12 years of silence or a long period of silence ensued.

[00:18:15] Speaker 04:
On your part, and there's no conduct.

[00:18:17] Speaker 04:
There's no response.

[00:18:19] Speaker 04:
Isn't that silence the type of conduct we look in this situation?

[00:18:23] Speaker 02:
It's silence, but it's not the type of conduct that this court has examined in previous cases applying equitable estoppel.

[00:18:29] Speaker 02:
The silence has, in every case, followed some sort of interaction between the parties about the patented issue.

[00:18:38] Speaker 02:
And I mean, that's the case in ABB robotics.

[00:18:41] Speaker 03:
That's the 337 argument, though.

[00:18:44] Speaker 03:
I know it's not the patented.

[00:18:45] Speaker 02:
And there are even cases where this court has found no misleading conduct, where there were discussions about the patented issue, where there were multiple discussions over many periods of months, many letters exchanged.

[00:18:57] Speaker 02:
That was what happened in the SCA hygiene case.

[00:19:00] Speaker 02:
There were aggressive assertions of infringement in the Myers versus Brooks shoe case.

[00:19:06] Speaker 02:
Even the cases on which Morris relies,

[00:19:09] Speaker 02:
High Point and ABB Robotics, there were objections that the products at issue were infringing.

[00:19:15] Speaker 02:
That didn't happen here.

[00:19:16] Speaker 02:
If the letter is the only thing that occurred, Cat never did anything.

[00:19:21] Speaker 02:
There was no conduct on Cat's part that preceded its silence.

[00:19:25] Speaker 02:
And that's the key in this context, is the court has held that silence can be misleading, but only when it follows some sort of conduct that makes the silence misleading.

[00:19:38] Speaker 02:
And this court has never held

[00:19:40] Speaker 02:
that a competitor sending a letter three weeks after the patent is issued saying, hey, we didn't infringe your patent, saying that to not respond to a letter like that is misleading conduct.

[00:19:51] Speaker 02:
The court has never held that.

[00:19:55] Speaker 04:
Just to make sure, there was no arguments below as to any implications that the amendments to the patent had on this issue?

[00:20:06] Speaker 04:
No, Your Honor.

[00:20:07] Speaker 02:
There were no arguments to that effect.

[00:20:11] Speaker 00:
OK, we'll restore two minutes of rebuttal.

[00:20:13] Speaker 00:
Let's hear from the other side.

[00:20:14] Speaker 00:
Thank you.

[00:20:26] Speaker 04:
Did you raise any intervening rights as a defense in your answer?

[00:20:33] Speaker 01:
I do not recall, but I can address, because I think you're getting to, it may please the court.

[00:20:38] Speaker 01:
Thank you, and good morning.

[00:20:39] Speaker 01:
I do not recall intervening rights.

[00:20:41] Speaker 01:
There may have been an affirmative defense, but I'm not sure.

[00:20:44] Speaker 04:
Is there anything that would prevent us from looking at whether intervening rights as an affirmative defense existed?

[00:20:51] Speaker 01:
Now that I think about it, I want to say that we did, because this does speak to your issue with the re-exam.

[00:20:57] Speaker 01:
And in the complaint, there was actually a motion for preliminary injunction.

[00:21:01] Speaker 01:
In response to that motion for preliminary injunction,

[00:21:04] Speaker 01:
And I apologize, I don't remember this court's, you know, there's a couple of cases that Morris cited in response that when you have a re-exam and you take a patent through a re-exam, you're essentially narrowing it.

[00:21:14] Speaker 01:
It's the same patent.

[00:21:16] Speaker 01:
So therefore, you don't reset the clock with respect to bringing, you know, the action.

[00:21:20] Speaker 01:
And the equitable stopper on this goes to your question.

[00:21:22] Speaker 04:
But you now have different claims.

[00:21:24] Speaker 01:
You have narrower claims.

[00:21:27] Speaker 01:
You can only narrow a reexamination in reexamination, unlike reissue where you could brought.

[00:21:31] Speaker 01:
So you would have different claims in a reissue, but you would not in reexamination.

[00:21:35] Speaker 01:
And I apologize.

[00:21:36] Speaker 01:
I don't have those authorities on my fingertips.

[00:21:39] Speaker 01:
But there's two cases from this court that I think speak to that that were cited to the lower court in opposition to a motion for preliminary injunction.

[00:21:47] Speaker 01:
And the court relied on those and denied the preliminary injunction motion.

[00:21:51] Speaker 01:
With regard to intervening rights, I suspect that that probably was an affirmative defense because you did have a situation where the patent claims did change.

[00:21:59] Speaker 01:
I think the original patent had two claims.

[00:22:02] Speaker 01:
It went through reexamination.

[00:22:03] Speaker 01:
I think those two claims were amended.

[00:22:06] Speaker 01:
Maybe six others were added.

[00:22:07] Speaker 01:
So that would most likely give rise to that.

[00:22:11] Speaker 01:
I apologize.

[00:22:11] Speaker 01:
I don't know for sure.

[00:22:12] Speaker 01:
But I believe that to be the case.

[00:22:14] Speaker 01:
I do not believe that there are any actual disputed facts

[00:22:18] Speaker 00:
What's your best case on the law?

[00:22:22] Speaker 00:
I've seen these issues come up, they ring familiar, but what I realize is they're all in the DJ context.

[00:22:32] Speaker 00:
We've had quite a number of cases where, given something like this happening, your side goes into court with a DJ action and the question of whether or not there was enough of a threat or an imminent threat for you to persevere on your DJ, right?

[00:22:48] Speaker 00:
Certainly.

[00:22:51] Speaker 00:
So what is your best case, your closest case, your strongest case that we have close to the facts here?

[00:22:56] Speaker 00:
In other words, just a letter, a letter that sets out the validity.

[00:23:02] Speaker 00:
The letter, demand, your demand.

[00:23:06] Speaker 00:
A lot of lawyers send demand letters.

[00:23:09] Speaker 00:
If you're not convinced the patent is invalid, I request you provide information necessary to show why each of them do not anticipate.

[00:23:19] Speaker 00:
But then you go on to say, if you don't stop doing this, we're going to file suit against you.

[00:23:25] Speaker 00:
And the bot conclude by, let me know you've instructed your client as requested.

[00:23:31] Speaker 00:
So presumably, you didn't have any other instances after this of them going to your clients and telling them about you.

[00:23:37] Speaker 01:
The rumors went away.

[00:23:39] Speaker 00:
It went away.

[00:23:40] Speaker 01:
I think it went to a response where more JBT says that there were no statements before or after.

[00:23:46] Speaker 00:
So what's the case that's closest that

[00:23:48] Speaker 00:
given this entitles you to equitable estoppel or equitable estoppel?

[00:23:54] Speaker 01:
I would start with Scholl.

[00:23:55] Speaker 01:
I think – and let me answer generally.

[00:23:59] Speaker 01:
Each of these cases seem to be specific to their facts.

[00:24:03] Speaker 01:
And so I think – and there's actually some language that there's no precise formula to get there, I believe, maybe an argument.

[00:24:09] Speaker 01:
But I would probably start with Scholl from the standpoint of, hey, you do have a party that's reaching out and, you know,

[00:24:16] Speaker 01:
asking for information in response and you have a prior dispute.

[00:24:21] Speaker 01:
I think Shoal uses the term course of dealings and that would be analogous to the pattern of practice.

[00:24:30] Speaker 03:
Start with even broader and that is why equity?

[00:24:36] Speaker 03:
Why does equity exist?

[00:24:38] Speaker 03:
And what are the underlying doctrines?

[00:24:41] Speaker 03:
And one of them is unclean hands.

[00:24:47] Speaker 03:
Where does that fit here?

[00:24:49] Speaker 03:
When someone, allegedly at least, is making threats and then says, well, we can rely.

[00:25:03] Speaker 03:
You can't rely.

[00:25:06] Speaker 03:
Equity is a funny critter.

[00:25:08] Speaker 01:
It is.

[00:25:09] Speaker 01:
And there's a lot we could peel out of that in the facts of this case.

[00:25:12] Speaker 01:
So I want to try to address both of these issues at the same time.

[00:25:15] Speaker 01:
You know, when you look at the course of dealings, I think the 037 issue is absolutely relevant because it trained Morris on how JBT views patent infringement.

[00:25:26] Speaker 01:
When you have a letter, the very first letter we have, and this speaks to the evidentiary prejudice because apparently there were some letters that we don't have anymore from an attorney to Morris, and then it ultimately resulted in exchanges between the principals, you know, we're going to sue you if we don't get this resolved.

[00:25:43] Speaker 01:
We will stop the one instance and we will pay you.

[00:25:47] Speaker 01:
And then three months later, at least Morris believes that JBT believes the Morris Augerchiller infringes the patent.

[00:25:55] Speaker 01:
You don't need to get to the hearsay issue because it is not offered for the truth of the matter.

[00:25:59] Speaker 01:
The lower court didn't do that.

[00:26:01] Speaker 01:
The lower court said the date is what's important.

[00:26:03] Speaker 00:
The lower court did have some comments that really suggested, if not demonstrated, that he was relying on

[00:26:14] Speaker 00:
I don't know exactly what page this is, JA7, the same paragraph where he says he's not relying on the contents.

[00:26:25] Speaker 00:
He says, plaintiff admitted that received the letter and chose to neither respond nor enforce its patent at that time.

[00:26:31] Speaker 00:
So the letter establishes, and plaintiff does not deny, that by June 2002, plaintiff knew the defendant was selling the product, that plaintiff believes infringed their 622 patent.

[00:26:44] Speaker 01:
I'm sorry, where are you reading it?

[00:26:46] Speaker 00:
I don't know, I've got my notes, but it's page seven.

[00:26:50] Speaker 00:
Oh, yes, I'm with you now.

[00:26:51] Speaker 00:
Yes, yes.

[00:26:52] Speaker 00:
So that suggests that he was accepting something.

[00:26:55] Speaker 00:
But can I ask you to just go back?

[00:26:59] Speaker 00:
I really, I mean, I, if, what if they had written back and they said, we think you're wrong, that be sufficient to defeat equitable estoppel?

[00:27:11] Speaker 00:
I mean, you're demanding here that they give you

[00:27:13] Speaker 00:
information necessary to show that it does not anticipate the other blah, blah, blah.

[00:27:18] Speaker 00:
But what if they had just said, you're wrong?

[00:27:22] Speaker 01:
We have the 037 patent situation to guide us on what Morris would have done there.

[00:27:27] Speaker 01:
We also have undisputed testimony from Morris's executives on what they would have done.

[00:27:32] Speaker 01:
And so in your scenario, Judge, had we gotten a letter back

[00:27:38] Speaker 01:
then Morris is now in the position it can either agree or disagree.

[00:27:42] Speaker 01:
It could possibly file a declaratory judgment action at that point in time.

[00:27:45] Speaker 01:
Its options are many if they had responded.

[00:27:50] Speaker 01:
But we know they didn't respond out of inadvertence, but they did it because it was purposeful.

[00:27:58] Speaker 01:
And the lower courts found this too.

[00:28:00] Speaker 01:
They chose not to respond.

[00:28:02] Speaker 01:
So your scenario, I understand the hypothetical,

[00:28:04] Speaker 01:
It purposefully didn't happen here because JBT wanted Morris to compete in the marketplace.

[00:28:10] Speaker 01:
I think there's a quote in there that... Foreigners, they didn't want to... Right, right.

[00:28:14] Speaker 01:
They wanted the devil they knew in Morris, not the devil they knew in some European conglomerate who might be bigger.

[00:28:19] Speaker 01:
So you have 12 years of silence here.

[00:28:22] Speaker 01:
I think the cases that we've talked about this morning maybe get up to half of them, maybe a little over.

[00:28:29] Speaker 04:
What effect do the amended claims have on the 12 years of silence?

[00:28:34] Speaker 04:
and on your reliance on that silence.

[00:28:38] Speaker 01:
What effect did the amended claims have on the silence?

[00:28:41] Speaker 01:
Well, Morrison was never advised that the patent had been put into re-exam.

[00:28:45] Speaker 01:
I know in the SCA case, this court indicated that, well, I think first quality could have gone in check because these are public.

[00:28:53] Speaker 01:
But the re-exam didn't occur until 11 years later.

[00:28:56] Speaker 00:
Yeah, but the complaint filed here relied on the new claims.

[00:28:59] Speaker 00:
Sorry?

[00:29:00] Speaker 00:
The complaint here.

[00:29:01] Speaker 00:
reliance exclusively on the amended claims.

[00:29:04] Speaker 00:
Which gets to the intervening rights issue.

[00:29:07] Speaker 00:
I'm sorry.

[00:29:07] Speaker 04:
And you say you asserted that as an affirmative defense?

[00:29:11] Speaker 01:
I don't know for sure.

[00:29:13] Speaker 01:
I am happy to supplement.

[00:29:14] Speaker 01:
I can check with my colleague, but as I stand here right now, I don't know.

[00:29:18] Speaker 01:
I would expect that there would have been a defense of that because, again... Can you let us know?

[00:29:23] Speaker 03:
Sorry.

[00:29:24] Speaker 03:
You did say you asserted it in response to a motion.

[00:29:29] Speaker 01:
Well, I said that what I was speaking to, and if I said that, I may have mispoken.

[00:29:34] Speaker 01:
Or I'm missing.

[00:29:35] Speaker 01:
Well, I want to be clear about that.

[00:29:38] Speaker 01:
In response to the question of would a successful assertion of the patent allow damages going back beyond but prior to the reissue, the answer to that that we asserted in the... That was your narrowing argument.

[00:29:51] Speaker 01:
Yes, because it gets to the narrowing issue.

[00:29:53] Speaker 01:
And again, I'm happy to supplement with regard to those cases.

[00:29:56] Speaker 01:
Well, there's two cases from this court that spoke to that that seemed to... Were arguments made on this side, on intervening rights?

[00:30:06] Speaker 01:
I don't know that they were, Judge Raina.

[00:30:07] Speaker 01:
I think they were more directed to whether or not the issue would allow the plaintiff to go back beyond the time of the filing of the re-exam, because those claims did not exist anymore.

[00:30:18] Speaker 01:
You're correct in that.

[00:30:19] Speaker 01:
Those claims don't exist.

[00:30:20] Speaker 01:
But the narrower claims essentially were there because they were narrowed from the broader claims.

[00:30:26] Speaker 03:
Yeah, go back to equity, because one of the things that looks to me like a judge thought, and in general, equity doesn't like a snare.

[00:30:37] Speaker 03:
I'm sorry, I couldn't hear you.

[00:30:38] Speaker 03:
They don't like a snare, a snare and a delusion.

[00:30:42] Speaker 03:
They don't like it when one party says, well, I just will let that sit there.

[00:30:51] Speaker 03:
and see what happens to the other guy because I didn't say anything.

[00:30:57] Speaker 03:
That's a snare or a trap.

[00:31:00] Speaker 01:
And I think Aukerman speaks to that about continued silence and with regard to the inequalities of is it truly fair for a party to lay in the weeds purposefully because they gain some business benefit for a period of time.

[00:31:14] Speaker 01:
And I believe the CEO of JBT said that from 2000 to

[00:31:20] Speaker 01:
I'm sorry, from 2000 to 2008, JBT had about 75% of the market share.

[00:31:25] Speaker 01:
And then from 2009 to the present, their market share had slid down to around 50% to 60%.

[00:31:31] Speaker 01:
He had also said, and we cited this in the brief, it's on Appendix 636, that Morris gets any sale they don't.

[00:31:38] Speaker 01:
So by implication, that means that Morris's sales would have been around 25%, but it had grown perhaps up to 40% to 50%.

[00:31:46] Speaker 01:
So the equities there speak to provide the motivation of perhaps why JBT changed its mind and decided to reverse course.

[00:31:55] Speaker 01:
Keeping in mind, too, this is not the first dispute.

[00:31:57] Speaker 01:
We've talked about the 037 patent.

[00:31:59] Speaker 01:
We also had a litigation in 2009 on a patent that was brought in the Eastern District of Carolina on a product, a device that is situated in the poultry processing line adjacent to the device that we're here about today.

[00:32:14] Speaker 01:
And in that dispute,

[00:32:16] Speaker 01:
JBT did not bring up the 622 patent.

[00:32:20] Speaker 03:
Now, I think in response, if I understand... You say the same auger-chiller design that JBT now claims is covered by the JBT patent.

[00:32:30] Speaker 01:
Different patent, different device, but in the same poultry processing line.

[00:32:35] Speaker 01:
So the device that we hear about today is a chiller.

[00:32:38] Speaker 01:
It's a large device that would stretch 50 to 100 feet, 10, 15 feet across.

[00:32:42] Speaker 01:
The device of the 2009 litigation for the 137 patent is much shorter, compact.

[00:32:50] Speaker 01:
And it's a different device, has a different purpose, but it's proximately placed to the device that we're here about today.

[00:32:58] Speaker 01:
And we did not see a counterclaim.

[00:32:59] Speaker 01:
We admit, we concede it wasn't compulsory.

[00:33:02] Speaker 01:
But it is not abnormal in a case where you have two competitors that both have patent rights, where one asserts patent, you get something coming back the other way.

[00:33:11] Speaker 01:
oftentimes can end up in a cross license.

[00:33:14] Speaker 01:
So if JVT, as they have admitted, going back to 2003, believed that Morris infringed the patent, well, still as of 2009, they preferred for Morris to compete in the marketplace when it would have been absolutely easy and available to them to assert that patent.

[00:33:32] Speaker 01:
They waited yet still further, and they had to take their patent to re-exam on some of the exact same prior art

[00:33:38] Speaker 01:
that Morris gave them in 2002, somehow claiming a substantial new question of patentability 11 years later.

[00:33:45] Speaker 01:
But that ultimately resulted in the narrower claims.

[00:33:48] Speaker 01:
With regard to reliance, I don't believe that this court has any law that says that reliance, if you have an advice of counsel opinion, I believe, Judge, while you spoke to this, I don't believe, I'm not aware that this court has any authority that if you have an opinion, whether your own, because some of the cases have individual belief,

[00:34:08] Speaker 01:
or you rely on counsel, that that somehow excludes you from relying on the actions of the patentee.

[00:34:15] Speaker 01:
Aukerman says substantial reliance.

[00:34:18] Speaker 01:
And the lower court found that there was indeed some substantial reliance siding to the wafer shave case.

[00:34:26] Speaker 01:
I would also come into the ABB case, the lower court, before it came here.

[00:34:31] Speaker 01:
And in there, there's some really interesting language that talks about if we went that way,

[00:34:36] Speaker 01:
you would essentially have the moment you... The only people who could assert equitable stopple were the knowing infringers.

[00:34:45] Speaker 01:
And going back to equity, that's not fair.

[00:34:48] Speaker 01:
That's not right.

[00:34:49] Speaker 04:
It seems to me that at the point that the claims were amended, and now you have five new claims, that that's a game changer here.

[00:34:58] Speaker 04:
And you seem to think that it's not.

[00:35:03] Speaker 04:
That's correct, Judge.

[00:35:04] Speaker 01:
I would be happy if the court thinks that that's something... But how can it not be?

[00:35:07] Speaker 04:
I mean, you've got a whole... And then they assert the suit on the new claims, on new amended claims.

[00:35:16] Speaker 04:
How can it not be a game changer?

[00:35:17] Speaker 04:
I mean, doesn't that change the whole scenario about reliance and the 2002 letter?

[00:35:26] Speaker 04:
It seems to me a lot of that just doesn't apply anymore.

[00:35:31] Speaker 01:
For purposes of infringement,

[00:35:34] Speaker 01:
The Morris would only possibly be liable on the new claims to the extent that it would infringe, right?

[00:35:42] Speaker 01:
Because those claims don't exist as of the date of the re-examination certificate.

[00:35:45] Speaker 01:
For liability purposes, there's a date and time, and it may have been 2013 or 14.

[00:35:50] Speaker 01:
I forget when it was.

[00:35:52] Speaker 01:
But going back for past infringement, those new claims didn't exist.

[00:35:57] Speaker 01:
And that was the issue that was before the court, as I recall.

[00:36:00] Speaker 01:
Um, in the preliminary injunction motion, I would come back.

[00:36:04] Speaker 00:
I don't understand how that's responsive to judge Raina because I have the same questions he has.

[00:36:08] Speaker 00:
Well, but if the, if the claims change substantially, yeah, infringement is going to be based on the new claims.

[00:36:16] Speaker 00:
Everything about this equitable estoppel goes back to the validity contentions raised in 2002.

[00:36:23] Speaker 00:
If because of re-exam those validity contentions either disappear or significantly changed.

[00:36:30] Speaker 00:
Why doesn't that also infect the notion of relying on equitable estoppel here that was – the only thing it's based on are assertions with regard to the invalidity of claims that no longer exist?

[00:36:44] Speaker 01:
– Yeah, and I apologize to the extent that I wasn't responsive to that.

[00:36:47] Speaker 01:
I think that, okay, so estoppel is for the life of the patent, as I understand this court's authority.

[00:36:53] Speaker 01:
And to the extent that you had some actions before the re-examination,

[00:36:58] Speaker 01:
the re-examination claims, that's the same patent.

[00:37:02] Speaker 01:
It is not a new patent.

[00:37:03] Speaker 01:
So it would apply because those claims are only narrower claims.

[00:37:07] Speaker 03:
So the extent that you have... Isn't the essence of your argument that those narrower claims necessarily fit within the broader stopped claims?

[00:37:17] Speaker 01:
You said it better than I could.

[00:37:18] Speaker 01:
Yes, that's correct.

[00:37:19] Speaker 04:
But that alters the validity assertions that were made in the 2002 letter.

[00:37:27] Speaker 01:
Well, they did successfully bring claims out of re-examination based on some of that same art, and they had to do it by narrowing.

[00:37:35] Speaker 04:
But that resets everything at that point.

[00:37:37] Speaker 00:
Let me ask you just, let's assume this letter said claims one and two are invalid because they're so broad and they include whatever.

[00:37:48] Speaker 00:
You go in for re-exam and you narrow them.

[00:37:51] Speaker 00:
So clearly, based on at least the initial invalidity contentions, which were based on breadth,

[00:37:57] Speaker 00:
no longer exist.

[00:38:00] Speaker 00:
If that's the case here, and by narrowing the claims, the stuff asserted in the 2002 letter is no longer probative of anything.

[00:38:12] Speaker 00:
In other words, if your friend, look back, he comes in, he buys the place and he looks at this letter and he says, you know, they make a good point.

[00:38:20] Speaker 00:
These claims are overbroad and they're probably anticipatory.

[00:38:24] Speaker 00:
Let's narrow the claims.

[00:38:25] Speaker 00:
And they go in and narrow the claims.

[00:38:28] Speaker 00:
Why isn't that just the normal day-to-day?

[00:38:30] Speaker 00:
Why does that invoke equitable estoppel?

[00:38:33] Speaker 00:
I think there could be questions.

[00:38:35] Speaker 00:
But why isn't that just OK?

[00:38:37] Speaker 00:
These are different claims.

[00:38:39] Speaker 00:
They could have been responsive.

[00:38:40] Speaker 00:
You don't know whether anything said in the 2002 letter would be relevant anymore.

[00:38:46] Speaker 01:
And I have to apologize to the extent that that was an issue that came up at the very outset of the case that I don't believe is fully briefed here at this point.

[00:38:53] Speaker 01:
If the court would like supplemental briefing, we're happy to do that.

[00:38:56] Speaker 03:
I think the court... Isn't the core of your answer that you're already on a course of conduct in which you've been misled into making what you make?

[00:39:08] Speaker 01:
Right.

[00:39:08] Speaker 01:
Because, I mean, we're talking about 12 years now.

[00:39:10] Speaker 01:
So at what point... I guess you have to decide at what point this equitable stop will trigger.

[00:39:14] Speaker 01:
I think that, you know, clearly the re-examination wasn't filed until 11 years later.

[00:39:20] Speaker 01:
it would be Morris's thought that we've been relying on this for well over a decade now.

[00:39:25] Speaker 01:
So, you know, to the extent that equitable estoppel applies to the life of the patent, why wouldn't that apply to the reexamination?

[00:39:32] Speaker 04:
Now you are arguing some form of a subset or a set of intervening rights.

[00:39:40] Speaker 04:
And I'm interested, that's why from the beginning I was asking about that particular question.

[00:39:46] Speaker 04:
Now, you said a while ago that

[00:39:48] Speaker 04:
Your lack of knowledge as to the claims being amended somehow mattered.

[00:39:52] Speaker 04:
Do you have any authority for that?

[00:39:54] Speaker 01:
Well, I always bring that up because I think that came up in the SCA case, where in that case, you had a party come back that said, hey, your patent's invalid.

[00:40:03] Speaker 01:
They did not ask for a response.

[00:40:04] Speaker 01:
And I think that's a key distinction.

[00:40:06] Speaker 01:
And SCA, in response to that, about seven months later, I believe, filed a request for reexamination.

[00:40:12] Speaker 01:
And this court, in its opinion,

[00:40:14] Speaker 01:
found that to be, okay, they're not just relying, they're not just being silent or inactive.

[00:40:19] Speaker 01:
They're taking action, and they're doing it in a public forum where the other party, First Quality, could have found that out.

[00:40:27] Speaker 01:
This re-exam didn't happen that quickly.

[00:40:29] Speaker 01:
It was 11 years later.

[00:40:32] Speaker 01:
I don't know, going back to the equities, where is the fairness?

[00:40:35] Speaker 01:
Does Morris have to keep checking just to see

[00:40:40] Speaker 01:
You know, is there a re-exam request?

[00:40:41] Speaker 01:
Is there a re-exam request?

[00:40:43] Speaker 01:
How long does that happen?

[00:40:44] Speaker 01:
It seems like at some point in time that would shift from perhaps what the court was thinking in SCA.

[00:40:50] Speaker 01:
So that's what I was referring to.

[00:40:52] Speaker 01:
I'm not aware of any other case that we've cited in the briefs that speaks to whether the patentee would be required to go get a re-examination of his patent, the timeliness of doing so.

[00:41:04] Speaker 01:
There just so happens to be a fact pattern that I'm aware of in SCA.

[00:41:08] Speaker 00:
But do you understand the concern we're talking about?

[00:41:10] Speaker 00:
Assuming hypothetically, the 2002 letter, the allegations that Patton was invalid.

[00:41:18] Speaker 00:
I mean, maybe they read the letter and said, geez, you're right.

[00:41:21] Speaker 00:
And it took a while for this to sift through the system.

[00:41:24] Speaker 00:
But then they said, we better go and re-examine and narrow the claims so that they don't encounter the anticipatory references that our friend cited in his 2002 letter.

[00:41:35] Speaker 00:
Why does that – and now they're only asserting the narrower claims, not the claims upon which the arguments with respect to invalidity were made in 2002.

[00:41:46] Speaker 00:
So why is equitable a stop of the way to go here?

[00:41:49] Speaker 01:
Do you understand the – – I think I do, and I'm having to reach back to the very outset of this case where this issue came up.

[00:41:55] Speaker 01:
My response to you is that my recollection is that it's the same patent.

[00:42:00] Speaker 00:
So the patent – – Yeah, I can see that it's the same patent, but if the claims are changed and narrowed,

[00:42:05] Speaker 00:
in a way that arguably avoids the invalidity concerns that were raised in 2002, why doesn't that matter?

[00:42:15] Speaker 00:
And they're only asserting these new claims that don't.

[00:42:17] Speaker 00:
I mean, it's just like them saying, by the way, you were right in your 2002 letter.

[00:42:23] Speaker 00:
That's why we haven't asserted those claims against you.

[00:42:26] Speaker 00:
And indeed, we're going back and doing re-exam and narrowing the claims so that they don't bump against up this prior art.

[00:42:33] Speaker 00:
If they had said that, would that be OK?

[00:42:36] Speaker 01:
if they'd said that back in 2002?

[00:42:38] Speaker 01:
If they'd said something of that nature in 2002, well, now Morris is in a position to respond and to do something and to take action.

[00:42:47] Speaker 01:
It is able at that point to decide, well, if they do that, what do we do then?

[00:42:52] Speaker 01:
But that didn't happen.

[00:42:53] Speaker 01:
It was over a decade later.

[00:42:55] Speaker 01:
So I think I'm doing my best to answer your question, but I'm not aware of any authority from this court that says, hey, re-examine restarts the clock.

[00:43:04] Speaker 01:
when it comes to equitable stoppables.

[00:43:06] Speaker 01:
And I would go back to your initial point.

[00:43:09] Speaker 04:
It has to have some role when we're talking about equity.

[00:43:14] Speaker 04:
We're talking about barring a patent from being asserted under law.

[00:43:20] Speaker 04:
And that's got huge implications there.

[00:43:24] Speaker 04:
To tell a party, you can't assert this patent.

[00:43:27] Speaker 04:
You're barred by law.

[00:43:29] Speaker 04:
So when we look at this, and we look at equitable estoppel and what that means under the common law principles of equity, then there has to be some sort of role there for this intervening event that occurred.

[00:43:43] Speaker 01:
Well, I think you also have to factor into that, Judge Rainer, the length of time that it took to go get the re-exam.

[00:43:48] Speaker 01:
If we were in the SCA situation, perhaps it's a different result.

[00:43:51] Speaker 01:
But you have a party that waited well over a day.

[00:43:53] Speaker 04:
Well, maybe.

[00:43:53] Speaker 04:
But then that's the point of the argument.

[00:43:55] Speaker 04:
Now, perhaps that should be argued.

[00:43:58] Speaker 04:
And the court should take a look at that.

[00:44:00] Speaker 01:
Well, we're certainly happy to provide supplemental briefing if the court thinks that that's an issue that has not been waived at this point.

[00:44:07] Speaker 04:
Well, you said it hasn't been waived.

[00:44:09] Speaker 04:
You said it's in your answer.

[00:44:11] Speaker 01:
Well, before the court here.

[00:44:14] Speaker 01:
I don't believe that it was brought up from the appeal from the lower court's ruling on equitable estoppel.

[00:44:20] Speaker 04:
So to that point, that it seemed to be- Would we be prevented from reviewing that

[00:44:24] Speaker 04:
or considering that issue in the first instance now?

[00:44:29] Speaker 01:
I would have to think about that, Judge.

[00:44:30] Speaker 01:
I mean, it seems to me that it would have been appropriate to bring it up to the trial court, to the lower court, when there was briefing on the equitable stoppable issue.

[00:44:40] Speaker 01:
It wasn't.

[00:44:41] Speaker 03:
Well, your opposing counsel was candid about that.

[00:44:44] Speaker 01:
So it would seem that there probably would be a waiver issue.

[00:44:48] Speaker 01:
But I would have to look into that.

[00:44:50] Speaker 01:
I'm not sure about that.

[00:44:54] Speaker 00:
We are far out of time.

[00:44:55] Speaker 00:
Thank you very much.

[00:45:10] Speaker 02:
Briefly, I'd like to point out one fact that I forgot when we were talking about the previous interactions between the parties on the other patent that was resolved prior to the issuance of this patent.

[00:45:24] Speaker 02:
The first letter in that series of letters that's in the record, it's at page 236 of the appendix, Morris actually mentions in that letter that they had sent a letter to Kat, to which Kat had not responded.

[00:45:39] Speaker 02:
So it shouldn't have come as any big shock to Morris later on when they sent this aggressive letter from their lawyer that there was not a response, because they had had, in the previous interaction on which they wanted to be relying,

[00:45:52] Speaker 02:
there had been letters sent to which Cat did not respond.

[00:45:55] Speaker 02:
It's the fifth paragraph of that letter, where it says, since we did not receive a response indicating approval of our proposal.

[00:46:03] Speaker 02:
So the June 2002 letter was not the first time, even to the extent that this is relevant, it wasn't the first time that they had sent a communication to Cat that didn't elicit a response.

[00:46:16] Speaker 04:
Just real quickly, can you tell us what you think?

[00:46:20] Speaker 04:
The implications are of the amended claims.

[00:46:25] Speaker 02:
To be candid, I am not prepared to speak to that today.

[00:46:29] Speaker 04:
But I do know that the complaint- Well, that's unfortunate, because that is the issue here.

[00:46:36] Speaker 02:
And I apologize for that.

[00:46:38] Speaker 02:
But I do know that the complaint in this case only sought damages from and only targeted infringement from the date of the re-examination certificate forward.

[00:46:48] Speaker 02:
The certificate was issued on May 9th, 2014, and that's the date on which the damages period that's alleged in the complaint begins.

[00:46:58] Speaker 02:
That seems like a relevant factor, but as for the law on this point, I'm just not prepared to speak to it, and I apologize for that.

[00:47:05] Speaker 02:
I'd like to, I don't want to start again.

[00:47:07] Speaker 02:
Well, make while you have time.

[00:47:09] Speaker 02:
Well, I would like to respond briefly to the point that was raised in Mr. Crane's argument that

[00:47:16] Speaker 02:
There's no precise formula for determining how equitable estoppel is applied.

[00:47:20] Speaker 02:
And that's true.

[00:47:22] Speaker 02:
But this court's opinions on equitable estoppel always seem to situate what occurs in a case with regard to what has occurred in previous cases.

[00:47:34] Speaker 02:
There is precedent in this area.

[00:47:37] Speaker 02:
And that's how that proceeds.

[00:47:40] Speaker 02:
The court doesn't look at this anew every time that equitable estoppel is raised.

[00:47:45] Speaker 02:
And yeah, there's room for some movement in that.

[00:47:48] Speaker 02:
But I can sum up here by saying again, there just isn't a situation where this court has applied equitable estoppel in a circumstance like this, where the only communication between the parties regarding this patent was a letter sent by the competitor three weeks after the patent was issued.

[00:48:07] Speaker 02:
And that's the only thing that the record establishes occurred.

[00:48:11] Speaker 00:
Thank you.

[00:48:12] Speaker 00:
We thank both sides.

[00:48:14] Speaker 00:
Thank you.