[00:00:29] Speaker 01:
Next case is Laerdal Medical Corporation versus the ITC, 2017, 2445.

[00:00:42] Speaker 01:
Mr. Kaplan, when you are ready.

[00:00:45] Speaker 00:
Thank you, Your Honor.

[00:01:09] Speaker 00:
Morning, Your Honor.

[00:01:09] Speaker 00:
May it please the Court.

[00:01:13] Speaker 00:
The Commission committed two specific legal errors that I want to focus on today, subject of course to whatever the panel wants to question about.

[00:01:23] Speaker 00:
The first error is actually best articulated in their red brief here.

[00:01:28] Speaker 00:
If you look at pages 14 to 15, and it's repeated at 44 to 45, they explain what findings and determinations they were making

[00:01:38] Speaker 00:
For example, at page 11 of the appendix page 11.

[00:01:43] Speaker 00:
And what they seem to be explaining is that, yes, you may have pled this at the beginning under a Rule 12b6 standard sufficient for us to institute.

[00:01:54] Speaker 00:
But at the end, they went back, sort of reexamined the entire set of pleadings that went in, and then made some determinations about remedy.

[00:02:06] Speaker 00:
And there are three different reasons why we believe that that was legal error, probably the latter of which is pretty much dispositive of this case.

[00:02:15] Speaker 00:
The first reason is that it reads out the distinction between G-1 and G-2 of 1337.

[00:02:23] Speaker 00:
G-1 gives a list of criteria which, if they're met after an investigation is instituted,

[00:02:33] Speaker 00:
relief is to be given, whereas G2 says after a default and after it's instituted, the different relief under G2 is to be given only upon some other determinations that the commission makes.

[00:02:49] Speaker 00:
Specifically, in G2, B, and C, those determinations are listed.

[00:02:55] Speaker 00:
The second problem is it also disregards the distinction between G1 and D1.

[00:03:02] Speaker 00:
D1 is the issuance of exclusion orders when there's not a default, and that is subject to certain determinations the commission made of the type they made here.

[00:03:14] Speaker 00:
But that requirement is left out of G1.

[00:03:19] Speaker 00:
But the most important reason, I think, that this is an error is that

[00:03:26] Speaker 00:
There's a commission opinion from last year that we cited you in our papers.

[00:03:31] Speaker 00:
I think it's called in-ray electric skin care devices.

[00:03:36] Speaker 03:
And I want to just read a couple of sentences.

[00:03:41] Speaker 03:
Is the commission bound by its own precedent in the same way that a court is?

[00:03:46] Speaker 00:
I believe that they are, Your Honor.

[00:03:49] Speaker 00:
I don't have authority from a court saying that.

[00:03:53] Speaker 00:
But I believe the commission takes the position.

[00:03:55] Speaker 00:
But I'm not sure.

[00:03:55] Speaker 03:
Well, clearly.

[00:03:57] Speaker 03:
they have diverged it.

[00:03:59] Speaker 00:
I'm sorry?

[00:04:00] Speaker 00:
Clearly, this case diverges from the one you're citing us to.

[00:04:06] Speaker 00:
I would agree with that statement, but I'm not sure the commission does.

[00:04:10] Speaker 00:
I'm just not sure if they're saying they are following it or not.

[00:04:13] Speaker 00:
But I don't know the answer.

[00:04:14] Speaker 03:
So I just need to understand more.

[00:04:16] Speaker 03:
Is your argument that they got it right the first time, they're getting it wrong now, or is your argument that they're bound by their earlier decisions?

[00:04:27] Speaker 00:
Well, my argument, I guess I would say, is twofold.

[00:04:29] Speaker 00:
They got it right the first time.

[00:04:31] Speaker 00:
They're getting it wrong now.

[00:04:32] Speaker 00:
But I think on this particular issue, it's not just whether they're bound by their own holdings.

[00:04:38] Speaker 00:
It's that the holding I'm about to read you is the commission's interpretation of their own enabling statute.

[00:04:45] Speaker 00:
And that is entitled to deference under normal standards of APA law.

[00:04:50] Speaker 00:
So if that answers your question.

[00:04:53] Speaker 03:
Is there a, has the commission issued

[00:04:56] Speaker 03:
Other than this opinion, has the Commission issued any regulation or any other formal statement regarding its interpretation of their enabling statute?

[00:05:08] Speaker 00:
I would say yes, Your Honor, and that is the most relevant of the other thing they've issued, for lack of a better term, is the stuff we cited in our brief where they said repeatedly that the purpose of the prefiling investigation

[00:05:25] Speaker 00:
is to determine specifically whether the complaint properly alleges a cause of action that you're pursuing, whether it's patent or trade dress, and that that's why they're permitted.

[00:05:37] Speaker 00:
They're defending a case in this Court now where they're arguing that's why they're permitted to dismiss a complaint without instituting, because the very purpose is to determine whether they should proceed, whether you have a proper allegation.

[00:05:52] Speaker 03:
If you're correct that once they proceed with an investigation as to defaulted parties, they must grant the relief subject to the public interest analysis, then why didn't you appeal the copyright claim?

[00:06:10] Speaker 00:
That is a whole different issue.

[00:06:12] Speaker 00:
To be honest, I would have to get into some privileged stuff to disclose that decision.

[00:06:19] Speaker 00:
I think I can generally say a decision was made

[00:06:23] Speaker 00:
that it would simplify the appeal without doing that.

[00:06:26] Speaker 00:
There's probably more to it, but I would get into the privilege.

[00:06:29] Speaker 00:
But, Your Honor, if I could just complete the thought on how they've interpreted their statute.

[00:06:34] Speaker 00:
If you look at pages 3724 to 3725, there's some language beginning at the bottom of 3724 where the commission says, The legislative history of Section 337G notes that the addition of the provision for default judgments

[00:06:52] Speaker 00:
was motivated by the fact that discovery is usually difficult, if not impossible, to obtain from named respondents who have chosen not to participate in the investigation.

[00:07:03] Speaker 00:
I'll skip the sites now.

[00:07:04] Speaker 00:
But the next sentence, thus, Congress recognized that without participation, it is difficult for complainants to establish sufficient facts to warrant the finding of a violation of Section 337 or what relief is applicable.

[00:07:21] Speaker 00:
So what the commission is saying there is Congress, the commission's interpretation of the statute is Congress decided not to put the complaint into its proofs that it would normally have under the normal standard of proof.

[00:07:35] Speaker 00:
Congress, because it says you may not be able to establish even a violation, much less a relief, that as long as you pass the institution as listed in the G,

[00:07:47] Speaker 00:
that you make this order to show cause why they shouldn't be held in default, that you, you know, sir.

[00:07:54] Speaker 02:
You think that line of reasoning makes a lot more sense than the line of reasoning in an interpretation that was applied in your case.

[00:08:00] Speaker 02:
I'm sorry?

[00:08:00] Speaker 02:
Are you saying that the interpretation here makes more sense than the interpretation that's been applied in your case, right?

[00:08:07] Speaker 02:
The legislative history supports that.

[00:08:10] Speaker 00:
I'm saying more than that.

[00:08:12] Speaker 00:
I'm saying yes, Your Honor, but I'm also saying, Judge Stowe, that we don't just have complainant here.

[00:08:17] Speaker 00:
arguing the statutory interpretation.

[00:08:19] Speaker 00:
We have the ITC interpreting its own statute.

[00:08:23] Speaker 02:
Differey than it is in this case.

[00:08:24] Speaker 00:
Differey, we believe, than it did here.

[00:08:27] Speaker 00:
So what we're saying is, once we met, and there's no dispute here, I don't think, maybe my colleague will disagree, but I don't think from the briefing that the commission's arguing that their institution decision under those broad pleading standards and the requirements of ITC rules that go beyond notice

[00:08:47] Speaker 00:
They're not saying that the institution decision was wrong.

[00:08:50] Speaker 00:
They shouldn't have instituted it.

[00:08:52] Speaker 00:
I think what they're saying is, yes, we instituted correctly.

[00:08:56] Speaker 00:
And they can't be saying that, by the way, because the first part of G, where they're required to presume the facts to be true, they did that, and they wouldn't reach that.

[00:09:03] Speaker 00:
If we didn't have a proper complaint at the beginning, it would just be dismissed.

[00:09:07] Speaker 00:
There would be no reason to reach G, to even presume the facts true.

[00:09:11] Speaker 00:
The commission, I think the difference between the sides to really tee up the dispute is basically, what is the commission's job after a default upon a properly, at least at the beginning, alleged violation when it proceeds?

[00:09:26] Speaker 00:
Is the commission supposed to go re-examine things under the new standard of proof that they seem to apply?

[00:09:32] Speaker 00:
Or are they just supposed to do a checklist in G1, which is what we think.

[00:09:37] Speaker 02:
I understand that the district court, one of the things that they were

[00:09:41] Speaker 02:
relying on was district court practice.

[00:09:43] Speaker 02:
And that in the district court, you agree that in that circumstance, the district court is going to do more than just, OK, you're in default.

[00:09:50] Speaker 02:
I'm going to automatically enter judgment against the party in default.

[00:09:54] Speaker 02:
Instead, it will undertake an analysis of various factors.

[00:09:59] Speaker 02:
It differs a little bit from circuit to circuit and what those factors are.

[00:10:05] Speaker 02:
But I understand your position to be that here, it's different.

[00:10:10] Speaker 02:
And one could argue.

[00:10:11] Speaker 02:
that Congress legislates against that backdrop, understanding that that's how district courts handle default situations.

[00:10:18] Speaker 02:
And so when it included the language that you're going to assume the facts are alleged is true in the complaint, that it intended some sort of additional analysis.

[00:10:28] Speaker 02:
But your response, as I understand it, is that no, the statute says shall.

[00:10:31] Speaker 02:
Do I understand that correctly?

[00:10:33] Speaker 00:
Well, I would say it two ways.

[00:10:35] Speaker 00:
First of all, I think under what you're saying is correct in terms of your position, that we would say that

[00:10:40] Speaker 00:
district court analysis doesn't apply.

[00:10:42] Speaker 00:
But I would respectfully take exception when you say, when Congress legislates and they say presume the facts to be true.

[00:10:50] Speaker 00:
So, you know, based on district court, are they going to assume there's going to be something more than just that?

[00:10:55] Speaker 00:
But the statute, it's not that the statute says presume the facts to be true, that we're arguing therefore they're mandated to issue the relief.

[00:11:04] Speaker 00:
It's that there's a second piece of that that says, and shall upon request,

[00:11:10] Speaker 00:
If it was supposed to be district court, that wouldn't be there, because I don't have Rule 55, I believe it is, in the district.

[00:11:17] Speaker 00:
Sotomayor.

[00:11:18] Speaker 00:
It's more permissive.

[00:11:19] Speaker 00:
Yeah, it's more permissive.

[00:11:20] Speaker 00:
So Congress could have solved this problem, Judge Sol, but if you read the analysis from the commission case that I just read, where they said

[00:11:32] Speaker 00:
it's difficult to prove a violation or to establish the relief.

[00:11:37] Speaker 00:
Congress could have drafted G1 to say, if the respondent's default and you've properly alleged, then you're entitled to the relief unless the complainant, you know, but the complainant has to show that the reason he can't prove his case is because of the discovery that he can't get from default.

[00:11:54] Speaker 03:
Right.

[00:11:55] Speaker 03:
I mean, the IGC's a creature of statute, and Congress understands that very often the

[00:12:03] Speaker 03:
defaulting parties are not going to even be in the United States.

[00:12:07] Speaker 00:
Almost always, but yes, correct.

[00:12:09] Speaker 00:
Right.

[00:12:09] Speaker 00:
And so my response, my full response to Judge Stolt, I'm sorry, is that Congress chose to solve that problem not by putting a requirement on the complainant to

[00:12:23] Speaker 00:
what was going on and what discovery they couldn't get.

[00:12:25] Speaker 00:
But to say, we'll just say that if you meet the very broad plausibility.

[00:12:30] Speaker 00:
Remember, plausibility is that there's a whole bunch of cases, we cited in our brief, it's pretty much black-letter law that can only dismiss you on 12b6.

[00:12:39] Speaker 00:
You know, if there's sort of no possible fact pattern based on what you've pled, given all the reasonable inferences, it's very little.

[00:12:47] Speaker 00:
And Congress just said if you meet that liberal broad standard,

[00:12:51] Speaker 00:
We're going to give you the relief if the importers don't show up.

[00:12:54] Speaker 00:
And I would argue, Judge Stoll, that far from being sort of the back, using the backdrop of the district court cases, Congress knows about the district court Federal rules.

[00:13:05] Speaker 00:
And I would argue this is probably an intentional departure from that, because it has language that's much stricter than what's in the district court permissive rules.

[00:13:17] Speaker 02:
It's.

[00:13:17] Speaker 02:
Yeah, sure.

[00:13:19] Speaker 02:
It also says, and I just want to see what your response is to this.

[00:13:22] Speaker 02:
It says that the ITC shall upon request issue an exclusion.

[00:13:29] Speaker 02:
So the words are an exclusion, not the relief requested by the petitioners or the relief requested in the complaint.

[00:13:37] Speaker 02:
What do you make of that?

[00:13:38] Speaker 02:
That it just says, I mean, here you did get an exclusion.

[00:13:42] Speaker 00:
Well, here's what I would say.

[00:13:45] Speaker 00:
I would not disagree.

[00:13:46] Speaker 00:
In fact, I would advocate that the ITC, I think, has discretion, if they had wanted to, to say, we're going to give you the exclusion order against the products you sue, but we don't like the form of yours.

[00:13:59] Speaker 00:
It's too broad.

[00:13:59] Speaker 00:
It's too vague.

[00:14:00] Speaker 00:
Whatever.

[00:14:01] Speaker 00:
We're going to craft a narrow one or make us.

[00:14:03] Speaker 00:
So we don't disagree that they can order the form of exclusion order, a form of cease and desist order.

[00:14:11] Speaker 00:
A lot of these electric devices cases is about the discretion among those the ITC has.

[00:14:17] Speaker 00:
Where I think I would disagree with, and I think it's with the implication, is that they issued an exclusion order against patent rights and trademark rights, but those are separate causes of action that just happen to be additionally in this case.

[00:14:33] Speaker 00:
Let's suppose I didn't have those other rights and I just had proceeded from the beginning on trade dress.

[00:14:40] Speaker 00:
I don't think that

[00:14:41] Speaker 00:
If the court, if this Court concludes that they couldn't do what they did in that case, I don't think the fact that it had two other claims that happened to be in this case justifies what was done here.

[00:14:55] Speaker 00:
I think you have to look at each one separately.

[00:14:57] Speaker 00:
Otherwise, how could I be better off if I just took away the other claims and put them in a separate proceeding, Your Honor?

[00:15:06] Speaker 00:
But I would like, unless the panel has questions, I did want to talk about the merits, but I'd like to save my rebuttal time.

[00:15:13] Speaker 00:
So unless your honors have questions.

[00:15:16] Speaker 00:
Thank you very much, judges.

[00:15:28] Speaker 04:
May please the court.

[00:15:30] Speaker 04:
At no point in this investigation did L'Ordel ever recite a legally protectable trade dress.

[00:15:35] Speaker 04:
So regardless of the party's defaults, the absence of a trade dress precludes trade dress infringement.

[00:15:41] Speaker 03:
But wait.

[00:15:43] Speaker 03:
Let's talk about the statute.

[00:15:45] Speaker 03:
You guys did a full investigation of the complaint before you started the investigation, right?

[00:15:53] Speaker 04:
The commission did a pre-institution investigation.

[00:15:56] Speaker 03:
And in fact, they said some of the allegations weren't good enough and refused to institute on some of those claims, right?

[00:16:04] Speaker 04:
They did, and the specific reason why was that they failed to recite a suspect proof that these items were actually imported.

[00:16:12] Speaker 04:
At no point were any claims rejected.

[00:16:14] Speaker 03:
But they had the ability to reject them on any grounds, right?

[00:16:18] Speaker 04:
Yes.

[00:16:19] Speaker 03:
And that's a statutory requirement that that occurs before the proceeding even begins.

[00:16:26] Speaker 03:
Something that a district court doesn't do, right?

[00:16:31] Speaker 04:
A district court, yeah, they would not do that.

[00:16:34] Speaker 04:
But, and the commission, we try to screen out deficient cases, but it's an ex-party process.

[00:16:39] Speaker 04:
It's not perfect.

[00:16:40] Speaker 04:
We don't do it, I guess, correctly all the time, because we don't have... But the commission's a creature of statute.

[00:16:46] Speaker 03:
So you let it go, you institute, you institute against all of these parties, and you institute on all of these claims.

[00:16:54] Speaker 03:
And then you have defaulting parties, who then default, and you have a statute that says you shall enter an exclusion order, a cease and desist order, or both.

[00:17:03] Speaker 03:
subject only to the public interest analysis.

[00:17:07] Speaker 03:
Why isn't that what's supposed to happen?

[00:17:11] Speaker 04:
Well, the difficulty here, Your Honor, was that when we looked at the entire record, there just wasn't a trade dress that we could find that we could issue relief against.

[00:17:20] Speaker 03:
But the trademark and trade dress allegations were very similar.

[00:17:24] Speaker 03:
And you found one to be sufficient and the other not.

[00:17:28] Speaker 04:
Well, the trademark is a registered trademark.

[00:17:30] Speaker 04:
So they had already gone to the PTO and had

[00:17:33] Speaker 04:
trademark office say that you have this rub.

[00:17:37] Speaker 04:
That's not the case in trade dress.

[00:17:38] Speaker 04:
In trade dress, they have to show everything.

[00:17:40] Speaker 04:
They have to show that it's secondary meaning or inherently distinctive, that it's non-functional, and also that the likelihood of confusion.

[00:17:50] Speaker 04:
Here, that's just not what they did.

[00:17:52] Speaker 03:
Here, and what really happened was... They alleged that they had a legally enforceable trade dress, right?

[00:18:01] Speaker 03:
And no one disputed that.

[00:18:04] Speaker 04:
We dispute that there is a legally enforceable trade dress.

[00:18:07] Speaker 03:
But you're not a party, right?

[00:18:10] Speaker 03:
No party asserted a defense saying there was no legally enforceable trade dress because the trade dress was functional or there was some other problem with the trade dress that they were claiming, right?

[00:18:22] Speaker 04:
Obviously, there's no parties here.

[00:18:25] Speaker 04:
Nobody made that argument.

[00:18:29] Speaker 04:
There is no trade dress that be commissioned.

[00:18:31] Speaker 04:
What Lairdahl alleges as its trade dress is so vague and abstract that it's utterly meaningless.

[00:18:37] Speaker 04:
Like, for example, Lairdahl decides a trade dress in the types of plastic used for different components.

[00:18:43] Speaker 04:
It doesn't describe what types of plastic there are.

[00:18:45] Speaker 04:
It doesn't describe what those different parts are.

[00:18:48] Speaker 04:
It's completely unclear that it doesn't designate any source, and it can never be enforced.

[00:18:53] Speaker 01:
The trade dress's appearance, right?

[00:18:56] Speaker 04:
Correct.

[00:18:56] Speaker 01:
And we can look at the pictures.

[00:19:00] Speaker 01:
We can see what the appearance is, and there is some description there.

[00:19:05] Speaker 01:
We can see how close it is to the accused, who haven't responded.

[00:19:12] Speaker 04:
Well, their defined trade dress doesn't actually refer to the pictures, but even if it did, you still couldn't tell the types of plastic used for different components.

[00:19:21] Speaker 04:
There's simply no way to determine whether some other products... Is that part of the trade dress?

[00:19:25] Speaker 04:
I'm sorry?

[00:19:26] Speaker 01:
Is the type of plastic part of the trade dress?

[00:19:30] Speaker 04:
That's what they define as a trade dress.

[00:19:32] Speaker 04:
Now, I'm not sure how that really could be a trade dress.

[00:19:36] Speaker 03:
But your point here then, what you're saying is, we do an analysis upfront.

[00:19:41] Speaker 03:
If we see something inadequate, we tell them it's inadequate.

[00:19:44] Speaker 03:
They then have a chance to come back.

[00:19:46] Speaker 03:
And then we institute the other parties, don't come in, don't do anything.

[00:19:52] Speaker 03:
And at the end of the day, without even going back to them, we're going to say, you didn't prove your case against defaulting parties, right?

[00:20:02] Speaker 04:
Well, when it came down, that is what happened.

[00:20:06] Speaker 04:
When the commission.

[00:20:06] Speaker 03:
That is what happened.

[00:20:07] Speaker 03:
So you never, you said they defaulted, they never raised any defense.

[00:20:12] Speaker 03:
We, the commission, are going to raise a bunch of defenses and not give you an opportunity to address them.

[00:20:18] Speaker 03:
And we're just going to refuse any relief, right?

[00:20:23] Speaker 04:
So that's what happened.

[00:20:24] Speaker 04:
But it's also Lerdahl's obligation to define its trade dress in the first place.

[00:20:27] Speaker 04:
When they proposed relief to us, they proposed, they didn't,

[00:20:30] Speaker 04:
to find their trade dress at all.

[00:20:32] Speaker 04:
They just said, please exclude products that infringed our trade dresses.

[00:20:35] Speaker 04:
And they brought a C citation to 70 pages of documents.

[00:20:38] Speaker 04:
Didn't say, what about those documents?

[00:20:40] Speaker 04:
Actually, it was their trade dress.

[00:20:42] Speaker 04:
And it's black letter law that photos alone can't define a trade dress.

[00:20:46] Speaker 03:
As to any of these parties now, is it your view that they would be collaterally stopped against any of these parties because you made these findings, even though they never had an opportunity to address your defenses?

[00:20:59] Speaker 04:
Well, no, there's no issue of preclusion because there was no actual litigation.

[00:21:04] Speaker 04:
So there is no collateral estoppel.

[00:21:09] Speaker 04:
And if Lerda could have recited a legally defensible trade test to us, they could have done so months ago, and it might very well have resolved already.

[00:21:20] Speaker 03:
You never put them on notice that you were going to enter this, refuse the order.

[00:21:25] Speaker 04:
Well, they've been on notice since at least

[00:21:27] Speaker 04:
when we issued our commission opinion.

[00:21:29] Speaker 03:
So you're saying instead of appeal to us, they should have asked you to reopen this determination that you made?

[00:21:39] Speaker 04:
Well, that would be... No, that they would file a new complaint entirely.

[00:21:43] Speaker 03:
If they wanted us to... But this is my problem, is that the statute, I think, is pretty clear on its face.

[00:21:51] Speaker 03:
But even putting that aside, why is what the commission did not an APA violation here?

[00:21:58] Speaker 04:
Well, Lerda itself waived any due process argument, but even on its merits, there wasn't anything else the Commission could have done.

[00:22:06] Speaker 04:
There's nothing in the record.

[00:22:07] Speaker 03:
How could you waive a due process argument when you didn't even put them on notice?

[00:22:11] Speaker 04:
On page 32 and 33 of their brief, they explicitly waived their due process argument.

[00:22:17] Speaker 03:
But they argued an APA violation, did they not?

[00:22:23] Speaker 04:
They argued in their initial brief, and in their reply brief, they said that this wasn't an issue.

[00:22:28] Speaker 04:
that they were just going to rely on the shallow language.

[00:22:33] Speaker 04:
But I mean, regardless, there's no other process the commission could have afforded.

[00:22:37] Speaker 04:
They defined their trade dress.

[00:22:38] Speaker 04:
They sought a default based on the record as it stood.

[00:22:41] Speaker 04:
The commission couldn't have come up with a different trade dress.

[00:22:45] Speaker 04:
And like they say, the commission would have had its discretion to have chosen a different trade dress.

[00:22:51] Speaker 04:
The commission doesn't know what aspects of these do have secondary meaning, what actually

[00:22:56] Speaker 04:
shows or reflects what about these products is unique.

[00:22:59] Speaker 02:
Can I go back to your argument that they've waived any APA violation argument?

[00:23:04] Speaker 02:
Where is that?

[00:23:04] Speaker 02:
You said it's on page 32 of the blue brief.

[00:23:07] Speaker 04:
Can you point to me?

[00:23:10] Speaker 02:
Page 32 of the reply.

[00:23:14] Speaker 04:
Page 32 of the reply.

[00:23:20] Speaker 02:
The one that's titled the commission did not comply with due process?

[00:23:26] Speaker 04:
The second last paragraph on the bottom, in any event, the issue of due process now appears to be moot.

[00:23:33] Speaker 04:
So they themselves are saying that the issue is moot.

[00:23:36] Speaker 03:
Well, they're saying it's moot because you didn't give them any chance.

[00:23:39] Speaker 03:
I mean, if you read that sentence in context, especially in the context of the whole section, which is entitled that you violated due process, their point is you didn't give them a chance for process, so there's not much they can do about it now.

[00:23:56] Speaker 04:
Well, the Commission, there wasn't much process the Commission could have done.

[00:24:02] Speaker 04:
We could have allowed them, I guess, to refile brief, or refile their complaint.

[00:24:06] Speaker 04:
But that's tantamount to starting a brand new investigation.

[00:24:08] Speaker 04:
They would then have to re-serve it on all parts.

[00:24:10] Speaker 02:
How would it normally work?

[00:24:11] Speaker 02:
I mean, my understanding was how it would normally work is if you thought there was a problem with the pleading, you wouldn't have instituted on that issue.

[00:24:20] Speaker 02:
Do I misunderstand how it works?

[00:24:24] Speaker 04:
The Commission

[00:24:25] Speaker 04:
We try to screen out the ones that don't work, but the Commission does often let cases go forward.

[00:24:31] Speaker 02:
And then what happens in those situations?

[00:24:35] Speaker 02:
I mean, at some point, can the Commission say, oh, we made a mistake?

[00:24:40] Speaker 02:
How does that work?

[00:24:41] Speaker 02:
Or does it just work out because there's no defaulting party, and so things work out?

[00:24:47] Speaker 04:
Well, generally, in trade dress and other cases, people adequately define what they're trade dressing from the get-go.

[00:24:54] Speaker 03:
If it was so easy for you to see that there was no trade dress defined, why wasn't it screened out under the statutory screening procedure that the Commission has the authority to do?

[00:25:08] Speaker 03:
If it was that easy to conclude that they didn't properly identify a trade dress, you would think that that's the stage, the point at which that would happen.

[00:25:20] Speaker 04:
Ideally, that would have happened, but it didn't here.

[00:25:23] Speaker 04:
And when the commission ultimately determined the final determination in this case, it concluded there was no trade dress right.

[00:25:29] Speaker 03:
And that it determined that the reasonable thing to do was not to issue any... I don't even understand your argument where you say, we didn't really apply a 12b6 standard at the end of the day.

[00:25:42] Speaker 03:
We were applying some different standard.

[00:25:45] Speaker 03:
And that, yeah, what we apply maybe in the beginning is 12b6, but this is different.

[00:25:50] Speaker 03:
I don't understand that.

[00:25:51] Speaker 03:
because what you ultimately said is the base of the pleading wasn't good enough.

[00:25:55] Speaker 03:
Why is that not just a 12B6?

[00:25:58] Speaker 04:
Well, the Commission was ultimately making a final determination.

[00:26:01] Speaker 04:
And what we did, the difference is we accepted all facts as true, as is required by G1, and with all those facts as true, we found out that there was no legally defined trade dress.

[00:26:16] Speaker 04:
So the difference is that when you're actually

[00:26:18] Speaker 04:
at the final stage, you have to be able to physically write an order as to what products should be excluded.

[00:26:25] Speaker 04:
And citing all of their district court cases, there's many cases where they say, this is, we're not going to dismiss this trade dress claim because it's really vague.

[00:26:34] Speaker 04:
It is really vague, though, and you would have to at some point fill in the blanks and basically give us enough to write a specific trade dress relief on.

[00:26:45] Speaker 03:
So why didn't you go back to them and say, well, we accept your pleading that you have a trade dress.

[00:26:52] Speaker 03:
We need more information with respect to fashioning the exclusion order.

[00:26:56] Speaker 03:
Why wouldn't that have been the way to do it?

[00:26:58] Speaker 03:
Since the statute says you shall enter some order.

[00:27:03] Speaker 04:
Well, at that point, the parties had already defaulted on the thing.

[00:27:06] Speaker 04:
If we were going to change the scope of what they were accused of, they would then need to be put on fair notice of that.

[00:27:11] Speaker 03:
So the defaulting parties get more

[00:27:14] Speaker 03:
due process than the complainant before you?

[00:27:20] Speaker 04:
Well, no, Your Honor, but we are ultimately... Isn't that what you just said?

[00:27:28] Speaker 04:
No.

[00:27:28] Speaker 04:
So, Section 337, at its core, is to regulate unfair acts in trade.

[00:27:32] Speaker 04:
Here, everything they said, we did not see an unfair act in terms of trade dress infringement.

[00:27:40] Speaker 04:
And also,

[00:27:41] Speaker 04:
Under the Lanham Act, Lerdell has the burden to show that their unregistered trade dress is not functional.

[00:27:46] Speaker 04:
They didn't make any attempt to do that.

[00:27:47] Speaker 04:
And their products are medical equipment.

[00:27:50] Speaker 04:
It's broad trade dress that clearly is encroaching on the function of the item.

[00:27:54] Speaker 04:
They're just arguing that the shape and dimensions of a cervical collar are a trade dress.

[00:28:02] Speaker 04:
There's no way to make a competing, I guess, cervical collar that just is nowhere near that.

[00:28:12] Speaker 04:
Let's see.

[00:28:13] Speaker 01:
And then when you look at the... Counsel, you've been on the defensive throughout the time here.

[00:28:17] Speaker 01:
Do you have any affirmative statements you'd like to make concerning the conditions?

[00:28:24] Speaker 03:
Yeah, I'm just trying to make sure you get your money's worth to be in here, you know?

[00:28:31] Speaker 04:
So the features they say, they just are not specific.

[00:28:34] Speaker 04:
L'Erdal specifically used very abstract language to make specific

[00:28:39] Speaker 04:
features that are so broad that they're just unenforceable.

[00:28:43] Speaker 04:
They talk about the arrangement, shape, and placement of internal parts, the spatial relationship of the length and the circumference to the width and the thickness, the spatial relationship of the length to the width and the thickness.

[00:28:54] Speaker 04:
And these are all vague arrangements, and these relationships aren't important.

[00:28:57] Speaker 01:
And he's saying that if the commission is to issue an exclusion order, it has to be able to define what is excluded, and it doesn't know how now?

[00:29:08] Speaker 04:
I mean, that's exactly what I'm saying.

[00:29:10] Speaker 04:
And also, we have to be able to explain it to customs, and customs needs to know.

[00:29:13] Speaker 04:
And if we ourselves cannot understand what these features mean, we can't tell functionality or likelihood of confusion or possibly enforce them.

[00:29:22] Speaker 01:
And pictures aren't enough?

[00:29:25] Speaker 04:
The pictures aren't enough because what is the spatial relationship of the length and the circumference to the width and the thickness?

[00:29:32] Speaker 04:
That's just an opaque thing.

[00:29:34] Speaker 04:
I don't know what that means.

[00:29:35] Speaker 04:
I don't know how you would tell if something is similarly likely confusing to that.

[00:29:40] Speaker 04:
And their other features are so abstract that they're not really describing their own products.

[00:29:44] Speaker 04:
They're just describing the type of product generally.

[00:29:47] Speaker 04:
Like with their mannequins, they're describing facial features, musculature, position of the body, angle and position of the extremities, mouth opening.

[00:29:55] Speaker 04:
These are things that every CPR mannequin is going to have.

[00:29:58] Speaker 04:
They don't say anything about them that is unique.

[00:30:00] Speaker 04:
They just vaguely cite the parts of a mannequin.

[00:30:03] Speaker 03:
But you didn't enter an order that says the commission decides that we can't define what would be excluded enough for customs to know what to exclude.

[00:30:18] Speaker 03:
You entered an order saying they don't have a valid trade dress, right?

[00:30:24] Speaker 04:
And what we did, we looked at all of their papers and we found that they did not have a valid trade dress based on what was in the record.

[00:30:29] Speaker 03:
But the commission has no authority to declare any

[00:30:33] Speaker 03:
property right invalid unless it is asserted as a defense to an infringement claim, right?

[00:30:40] Speaker 04:
For trade dress, they have to show that they have that right in the first place.

[00:30:44] Speaker 04:
So that would be different in terms of like patents or something.

[00:30:47] Speaker 04:
But they need to establish that they have a trade dress.

[00:30:50] Speaker 04:
If what you were saying, you could just say any trade dress and then the commission would be regardless of how ridiculous.

[00:30:55] Speaker 03:
I didn't say any trade dress.

[00:30:56] Speaker 03:
I mean, their allegations were very, very similar to what they asserted with respect to the trademark.

[00:31:03] Speaker 03:
And there are such things as common law trademarks that they would have to establish the right to, right?

[00:31:10] Speaker 04:
There are such things as common, and those require more.

[00:31:13] Speaker 04:
That when you have a registered trademark, there is the presumption that it's valid.

[00:31:16] Speaker 04:
With a trade dress assertion, there is not a presumption that it's valid, unless they were to register it, which they didn't do.

[00:31:23] Speaker 01:
Thank you for your time.

[00:31:26] Speaker 01:
Mr. Kaplan, we'll give you two minutes for a bottle if you need it.

[00:31:33] Speaker 01:
I'm sorry?

[00:31:33] Speaker 01:
Two minutes for a bottle if you need it.

[00:31:35] Speaker 00:
OK.

[00:31:35] Speaker 00:
Thank you very much for restoring some of my time.

[00:31:38] Speaker 03:
What I want to hear is the response to the commission's argument that how do we know what to exclude if you didn't make it clear exactly what you were certain.

[00:31:49] Speaker 00:
Your Honor, I would answer that.

[00:31:51] Speaker 00:
Let me answer that.

[00:31:52] Speaker 00:
It plays into something else I want to say, but I'll go back to mine and answer yours first.

[00:31:58] Speaker 00:
Even if that argument had merit, that's essentially what was going on in the Abbott-Columbian-Fitch case.

[00:32:04] Speaker 00:
That argument requires nothing more than them issue an order at the end, say, not, you know, dismissing my case and declaring I don't have a trade dress, but saying,

[00:32:15] Speaker 00:
The order, the form of exclusion order that you've entered, we don't believe is specific enough for these reasons, and please enter a new order that better specifies your trade dress.

[00:32:26] Speaker 00:
I think, Your Honor, I want to bring us back to this two different standards.

[00:32:31] Speaker 00:
Counsel's making here today what I believe is a very different argument than what happened below and what happened in their red brief here.

[00:32:38] Speaker 00:
He's now saying, I think, the way I interpret it, there really was no trade dress.

[00:32:43] Speaker 00:
We sort of just didn't catch it at the beginning.

[00:32:46] Speaker 00:
But that's not what they argue in their brief here.

[00:32:48] Speaker 00:
They argue quite the contrary.

[00:32:49] Speaker 01:
Trade dress is vague.

[00:32:52] Speaker 01:
And this was part of a complaint with patents and trademarks and trade dress.

[00:32:58] Speaker 01:
And trade dress was probably just dragged along without much pleading.

[00:33:03] Speaker 00:
Yeah.

[00:33:03] Speaker 00:
But in their briefing here, they never say we made a mistake.

[00:33:06] Speaker 00:
They say we didn't make a mistake in institution.

[00:33:09] Speaker 00:
We didn't dismiss your claim at the end.

[00:33:11] Speaker 00:
I want to focus on the standards.

[00:33:13] Speaker 00:
If I could direct you to look at pages 540 of the appendix and 420 of the appendix.

[00:33:21] Speaker 00:
To make it easier for the Court, 420 is smaller.

[00:33:23] Speaker 00:
So if you just look at that, I can hold up 540, and maybe that can make the job quicker.

[00:33:28] Speaker 00:
If you look at what's on 540, Your Honors, and then you look, for example, at 420 of the appendix, and you see, and this is just one example of many products, but you see, you compare 540

[00:33:41] Speaker 00:
to what the defendants are bringing at 420.

[00:33:44] Speaker 00:
And at the beginning of the case, under a broad 12b6 standard, it's hard to say that with this in my complaint and what's on 420 in my complaint, I can prove no set of facts that would show

[00:34:03] Speaker 00:
that they're infringing.

[00:34:05] Speaker 00:
It's a copy.

[00:34:06] Speaker 00:
Every curve, every hole, you know, the colors, you know.

[00:34:09] Speaker 00:
So what I'm saying, again, to go back to Judge O'Malley's question about the argument that it can't be specified, at the beginning of the case, like in the Abercrombie

[00:34:20] Speaker 00:
The role is to look at this and say, well, maybe you didn't specify it in the text as well as you could have.

[00:34:26] Speaker 00:
So in the order, instead of saying our trade dress is bright colors, we're going to make you say it's yellow with this part and blue with that part.

[00:34:33] Speaker 00:
Or maybe you said, you know, the curvature, we're going to make you specify.

[00:34:37] Speaker 00:
We don't dispute that the commission would have, we can't mandate the form of order.

[00:34:42] Speaker 02:
Can I ask you something?

[00:34:43] Speaker 00:
Sure.

[00:34:43] Speaker 02:
Is that description to be read with looking at the photo?

[00:34:47] Speaker 00:
Yes, Your Honor, and that's what some of the cases.

[00:34:50] Speaker 00:
The other convocation, there were several others where they say, here's the description, and the cases even say, I'll paraphrase, but it may not be good enough at the end of the case, but the note is 12b6 standard, it's good enough, and we can narrow the form of order.

[00:35:08] Speaker 00:
So that's all we're saying.

[00:35:10] Speaker 00:
They just didn't have the right to go back at the end.

[00:35:13] Speaker 00:
And the statute, G-1, doesn't say go back and see if they prove their case.

[00:35:19] Speaker 01:
And as you can see, that light is on.

[00:35:22] Speaker 01:
Okay.

[00:35:22] Speaker 00:
May I make one more sentence?

[00:35:24] Speaker 00:
One more sentence, yes.

[00:35:25] Speaker 00:
I'm sorry?

[00:35:26] Speaker 00:
One more sentence, yes.

[00:35:27] Speaker 00:
And I would simply say that the commission has in the past issued orders with photos on the back of their orders to specify what products.

[00:35:35] Speaker 00:
are to be excluded.

[00:35:36] Speaker 01:
Thank you very much, Your Honor, for the extra time, particularly.