[00:00:04] Speaker 05:
The next case for argument is 171852, Leitner-Wise versus LWRC International.

[00:01:07] Speaker 05:
Just wait a minute, let them settle.

[00:01:11] Speaker 05:
Okay, sir, I think we're ready.

[00:01:14] Speaker 03:
Good morning, Chief Judge, Judge Moore, Judge Chen.

[00:01:17] Speaker 03:
I'm Matthew LaFondi for Paul Lightner Wise.

[00:01:20] Speaker 03:
If it please the court, this court has recognized that standing is a controversy requirement compelling the plaintiff to demonstrate an injury in fact, that the injury is fairly traceable to the actions of the defendant.

[00:01:35] Speaker 03:
and that the injury will be redressed by a favorable decision.

[00:01:38] Speaker 05:
How does your client have standing care when he had no retained rights to the patent?

[00:01:46] Speaker 03:
The rights that are retained to the patent, which is a factual dispute in this case, which was resolved without the benefit of discovery or a jury, was that my client was entitled to a half point percent royalty on all

[00:02:02] Speaker 03:
sales of the product which incorporated his technology and the 581 patent.

[00:02:08] Speaker 03:
He made an agreement which survived his termination with the Leitner Weiss Rifle Company, which provided for a royalty to be paid to him going forward.

[00:02:20] Speaker 03:
A patent, like any other property right, is a bundle of rights to which some may be alienated and others retained.

[00:02:29] Speaker 03:
And in this instance,

[00:02:31] Speaker 03:
Leitner-Wise retained that injury, in fact, by the fact that another company was making a rifle which they admitted incorporated the 581 patent to which he retained this inalienable right.

[00:02:46] Speaker 03:
The company to which the contract was made with Leitner-Wise for the royalties could not convey more rights to that patent than they received

[00:03:00] Speaker 03:
from Leitner-Wise.

[00:03:02] Speaker 03:
And in this instance, the bundle of rights that was retained was the right essentially to pay a licensing fee.

[00:03:09] Speaker 03:
And this, in some ways, is reflected in what the statute states as to who has standing in a patent infringement lawsuit.

[00:03:23] Speaker 03:
Unlike in earlier versions of the statute

[00:03:28] Speaker 03:
such as what was recited in Moore v. Marsh, 74, United States, 515 and 518.

[00:03:34] Speaker 03:
The Patent Act of that time said, persons interested in the patent at the time when the suit was brought.

[00:03:47] Speaker 03:
This language was removed from the statute in the current act and the section which we speak to today, which is 35, United States Code

[00:03:58] Speaker 03:
100, which speaks to a patentee.

[00:04:02] Speaker 03:
The statute defines the patentee to include the party to whom the patent was issued without qualification.

[00:04:10] Speaker 03:
It doesn't say that they have a patentee, the person to whom the patent was issued, and they didn't give up their rights.

[00:04:16] Speaker 03:
It says to the inventor.

[00:04:19] Speaker 03:
That is who the patentee speaks to.

[00:04:23] Speaker 01:
In your view that a patentee, when there's no dispute,

[00:04:27] Speaker 01:
that all right, title, interest, and can complete all substantial rights, every right to a patent is transferred from a patentee to, say, his employer in the natural course of things.

[00:04:38] Speaker 01:
The patentee nonetheless has a right to bring a patent infringement suit in his own name, absent his employer, because he was the person who received the patent initially, even though he sold it entirely, lock, stock, and barrel, without question.

[00:04:51] Speaker 01:
Your interpretation of the statute is that guy still gets to bring a suit in his own name?

[00:04:56] Speaker 01:
This court recognized... Is it a yes or no question?

[00:04:59] Speaker 03:
Yes, that is the point.

[00:05:01] Speaker 03:
I'm reading the statute and that's what the statute says.

[00:05:04] Speaker 05:
And I assume you don't have any case support for that proposition?

[00:05:08] Speaker 03:
I cannot find any cases which do not, which speaks specifically to the patentee completely alienating the rights.

[00:05:15] Speaker 03:
I have two other kinds of cases which I do see repeatedly.

[00:05:19] Speaker 03:
First of which is that a subsequent licensee

[00:05:23] Speaker 03:
who then alienates their rights, loses the right to litigate.

[00:05:27] Speaker 03:
And the other kind is that a subsequent licensee must bring in the inventor as a named party into the lawsuit.

[00:05:37] Speaker 03:
This court recognized in Archimede Incorporated versus Merit Industries, 939 Federal Second at 1574,

[00:05:47] Speaker 03:
The act of invention itself invests the inventor with a common law or natural right to make use or sell his invention, absent conflicting patent rights in others.

[00:05:58] Speaker 03:
A patent in effect enlarges that natural right, adding it to the right to exclude others from making or using or signing the patented invention.

[00:06:08] Speaker 03:
The inventor sold his patent subject to the retention of his right to be paid

[00:06:16] Speaker 03:
for this invention.

[00:06:19] Speaker 03:
And the LWRC-I could not receive any more than LWRC received when it received it from Leitner Weiss.

[00:06:38] Speaker 03:
And as this court recognized in Bapil Textile and Machining Command and Shellshaft,

[00:06:44] Speaker 03:
versus Mechanica Euro-D'Italia Society for Arizona in 1991, 944 Federal 2nd, 870, 875.

[00:06:54] Speaker 03:
A patent may be divided and assigned or retained or in whole part.

[00:06:58] Speaker 03:
As a general rule, the rights and invention belong to the inventor.

[00:07:04] Speaker 03:
And that's the Supreme Court in 2011, Board of Trustees versus Leland Stanford Junior University, V. Roche Molecular Services.

[00:07:13] Speaker 03:
The inventor may assign his rights to the invention and the recording creates a presumption of validity.

[00:07:20] Speaker 03:
We have never had an evidentiary hearing on what it was that Leitner-Wise retained when he sold this patent to the Leitner-Wise rifle company.

[00:07:33] Speaker 03:
We have provided to this court.

[00:07:35] Speaker 05:
Well, isn't that a legal question at the end of the day?

[00:07:38] Speaker 05:
I mean, these contracts exist.

[00:07:43] Speaker 05:
Contracts that we have before us exist.

[00:07:46] Speaker 05:
Yes, yes.

[00:07:47] Speaker 03:
I'm looking at Appendix 60.

[00:07:49] Speaker 03:
This is the language which we rely on, which says that the... This is the employment agreement, right?

[00:07:56] Speaker 03:
Right, this is the employment agreement.

[00:07:57] Speaker 03:
I'm on page 8 of the employment agreement.

[00:07:59] Speaker 04:
So do you just dispute the validity of all of these exit agreements and assignment agreement?

[00:08:07] Speaker 03:
We are very concerned about some of them because we have seen some documents in subsequent... Did you dispute the validity of them?

[00:08:14] Speaker 03:
Yes, in some degree.

[00:08:16] Speaker 03:
Which ones and why?

[00:08:18] Speaker 03:
We have actually started litigation in another case regarding some of those.

[00:08:22] Speaker 03:
Which one of these, in your view, is invalid?

[00:08:26] Speaker 03:
Most certainly, Appendix 65, we assert, is completely invalid because it's invalid on its face.

[00:08:35] Speaker 03:
This is plaintiff's exhibit D.

[00:08:37] Speaker 03:
This is the assignment of invention and patent application from April 18th of 2008.

[00:08:44] Speaker 03:
In this instance, the document falsely identifies the inventor as someone other than the inventor in this case.

[00:08:55] Speaker 03:
It cannot be reasonably disputed that Paul Lightner Wise invented the self-regulating action for this rifle.

[00:09:04] Speaker 03:
in the 581 patent.

[00:09:05] Speaker 03:
His name appears in the 581 patent.

[00:09:08] Speaker 03:
This is not a case where the provenance of the invention is disputed.

[00:09:14] Speaker 03:
It's engraved in stone at the Patent and Trademark Office.

[00:09:17] Speaker 03:
What we have here in 65, however, is Lightner Wise Rifle Company being identified as the inventor.

[00:09:26] Speaker 03:
We posit to this court, and we have repeatedly stated, that this assignment- Wait, they're not identified as the

[00:09:34] Speaker 03:
Yes, and it says that it's invented by a signer.

[00:09:39] Speaker 03:
This would be the fifth line after the underlined section.

[00:09:44] Speaker 03:
The signer is not Leitner Weiss himself.

[00:09:48] Speaker 03:
It is this company.

[00:09:49] Speaker 03:
This document is defective on its face because it misidentifies the inventor.

[00:09:56] Speaker 03:
Also, Leitner Weiss himself had nothing to do...

[00:10:01] Speaker 05:
I'm just looking at A65.

[00:10:03] Speaker 05:
I just am not seeing what.

[00:10:05] Speaker 03:
OK.

[00:10:05] Speaker 03:
So if we go to the fifth line, and there's an underlined section that says, self-cleaning gas operating system for a firearm.

[00:10:13] Speaker 03:
Immediately after that, it states, invented by a sign or, who is identified in the first line as this, companies do not invent things.

[00:10:24] Speaker 03:
People do.

[00:10:28] Speaker 03:
We assert that,

[00:10:30] Speaker 03:
Leitner Weiss himself, the plaintiff in this case, was removed from this assignment because he had an existing right to these royalties and that this document is a fraud in that it doesn't identify him as the inventor.

[00:10:50] Speaker 03:
It is defective on its face.

[00:10:52] Speaker 03:
It is void.

[00:10:55] Speaker 03:
And for this reason,

[00:10:57] Speaker 03:
To respond to Judge Chen's question, we do fully dispute the provenance of that assignment.

[00:11:06] Speaker 03:
The document 64 was an assignment we do not dispute, but it is in execution and in furtherance of the employment agreement.

[00:11:19] Speaker 03:
The employment agreement states there is 0.5% royalty on each of these firearms.

[00:11:27] Speaker 03:
In exchange for that, you will execute these documents which assign us the right to use it.

[00:11:33] Speaker 03:
It's necessary for us in furtherance of this contract.

[00:11:37] Speaker 03:
The defendants in this case have argued that for some reason, Leitner-Wise simply assigned this to them gratuitously, or assigned this to Leitner-Wise rifle company gratuitously.

[00:11:51] Speaker 03:
Well, this is a self-defeating argument.

[00:11:54] Speaker 03:
Because if you do not have consideration

[00:11:58] Speaker 03:
that is discussed in the employment agreement.

[00:12:03] Speaker 03:
This assignment is gratuitous and may be revoked at any time.

[00:12:07] Speaker 03:
It is illusory, unlike the case in which MemoryLink Corporation versus Motorola Solutions 2014

[00:12:28] Speaker 03:
case of this court, 773 Federal Third, 1266 to 1271, consideration was not actually exchanged.

[00:12:43] Speaker 03:
This court in considering applying Illinois law in that case found that consideration is a basic requirement for the contract, but nominal consideration will suffice.

[00:12:56] Speaker 03:
we found a case in which, I'm sorry, in memory like it said, in consideration of the sum of one dollar to us in hand paid and other good and valuable consideration, this case is distinguished in that Leiter Weiss properly asserts, and this contract does not speak otherwise, that he has never received anything for the use of his invention.

[00:13:24] Speaker 03:
So, absent

[00:13:26] Speaker 03:
The contract that says he's entitled to half a point, the first assignment on 64 is illusory because it's without... Is it half a point or is it .05 of a point?

[00:13:40] Speaker 03:
We assert that it is a half a point and that the .05 is typographical.

[00:13:47] Speaker 04:
Okay, so in the employment agreement, when I see .05, I should read it as .5.

[00:13:53] Speaker 03:
Yes, and we assert that the written out language should control there and that that is a typographical error.

[00:14:00] Speaker 04:
When we've repeatedly put... And this assignment documented A64, it is around the time when he left LWRC, is that right?

[00:14:12] Speaker 03:
Right, that's correct.

[00:14:13] Speaker 04:
Okay, and that was the same time when he was released from all non-compete agreements, is that right?

[00:14:19] Speaker 03:
when he was let in and then his shares were bought out.

[00:14:23] Speaker 03:
His shares were bought out by a third party, which we assert that the defendants improperly conflate that with somehow that being the consideration.

[00:14:33] Speaker 03:
The bottom line is, Leitner-wise would not give up this patent which has made hundreds of millions of dollars for these companies unless he was going to get something.

[00:14:47] Speaker 03:
And he has received absolutely nothing.

[00:14:49] Speaker 03:
And we have repeatedly asserted that to the district court.

[00:14:53] Speaker 03:
But without the benefit of a jury trial, without the benefit of discovery, the court latched onto some documents which were unauthenticated by the defendants to which we asserted was an improper business records exception because the person, Mr. Bernstein, who authenticated them, had no personal knowledge of them whatsoever.

[00:15:16] Speaker 03:
And that the court, without a notice or the opportunity to respond, converted that matter into a Rule 56 motion for summary judgment with no further proceedings.

[00:15:28] Speaker 03:
We assert that that was improper, and that Leiter Weiss has never had the opportunity to prove his case.

[00:15:38] Speaker 05:
We're into your advice.

[00:15:39] Speaker 05:
Thank you.

[00:15:39] Speaker 05:
We have one here from the other side.

[00:15:46] Speaker 05:
So you all are dividing your time.

[00:15:49] Speaker 05:
That's a little difficult for us, but we're running the clock separately.

[00:15:52] Speaker 05:
And if you go over, it's going to come out of your friend's time.

[00:15:54] Speaker 05:
So you're in charge of that.

[00:15:58] Speaker 00:
Thank you.

[00:15:58] Speaker 00:
I'm actually hoping to do it the other way around and leave him with extra time.

[00:16:07] Speaker 00:
My name is Laura Carroll, and I'm the attorney for Sig Sauer, who is one of the defendants in this case.

[00:16:15] Speaker 00:
I wanted to let the court know how my brother counsel, Mr. Fishman and I are dividing this up.

[00:16:32] Speaker 00:
Let me back up.

[00:16:33] Speaker 00:
Sig Sauer has only been accused of charge under counts one and two of the complaint.

[00:16:40] Speaker 00:
It's been accused of patent infringement and there's an unjust enrichment claim.

[00:16:47] Speaker 00:
The breach of contract claim is solely against LWRCI, Mr. Fishman's client.

[00:16:57] Speaker 05:
Was your friend correct that would these documents, these assignments and what not never authenticated or improperly authenticated?

[00:17:06] Speaker 00:
Mr. Fishman will address that, but my understanding is that they did have an officer of LWRCI or LWRCI's parent company submit a declaration authenticating them to the court.

[00:17:25] Speaker 00:
What I wanted to address briefly is the standing issue

[00:17:30] Speaker 00:
and the unjust enrichment claim, because both of those claims are against both defendants in this case.

[00:17:38] Speaker 05:
So your friend, with regard to the standing for infringement, is asserting that the language of the statute establishes that the inventor retains his rights here.

[00:17:49] Speaker 05:
What do you have in case law that subverts that?

[00:17:53] Speaker 00:
We have probably close to a dozen cases that say that's not the case, Your Honor.

[00:18:00] Speaker 00:
Mr. Leitner Weiss, when he executed the assignment in 2006, that's the document that's at appendix 64.

[00:18:10] Speaker 00:
It says he hereby sells and assigns to LWRC, which is, I understand, a predecessor company.

[00:18:27] Speaker 00:
his entire right title and interest.

[00:18:32] Speaker 00:
And at that point, what became the 581 patent was still a pending application.

[00:18:40] Speaker 00:
And that entire right title and interest language has been repeatedly held by both this court and the Supreme Court to constitute conveyance of all substantial rights.

[00:18:55] Speaker 00:
leaving the inventor or whoever the predecessor owner is, could be the inventor, it could be an original assignure, without any rights.

[00:19:05] Speaker 00:
What Mr. Leitner wise, and those cases include the Morrow case, Abraxas, Voppel, the Rood case, a very old Supreme Court case, which we cited, Jim Arnold,

[00:19:22] Speaker 00:
I'm just doing this by plain of names, because there's a lot of them.

[00:19:26] Speaker 00:
And then another, an unreported decision by this court, SGS Thompson.

[00:19:32] Speaker 00:
What Mr. Lightner-Wise's counsel keeps talking about, well, but his client retained the royalty right.

[00:19:43] Speaker 00:
We don't even contend that's accurate.

[00:19:46] Speaker 00:
What the royalty described in the employment agreement is, is the form of compensation.

[00:19:52] Speaker 00:
The transfer in the assignment doesn't say, I'm assigning these rights, but I'm keeping a royalty right, as though that's some kind of right you could go pursue against infringers.

[00:20:04] Speaker 00:
Instead, the compensation he agreed to was a royalty.

[00:20:09] Speaker 00:
And again, look at the employment agreement, which was attached to his complaint, so there's no issue as to authenticity.

[00:20:17] Speaker 00:
In that agreement, he's not getting all royalties.

[00:20:22] Speaker 00:
contrary to what he says in the brief, he's getting royalties at a certain percentage on products made by LWRC, the other predecessor company.

[00:20:36] Speaker 00:
And he's only getting those if the company is making a certain amount of profit.

[00:20:42] Speaker 00:
And there's also a net calculation, so it's not on gross sales.

[00:20:47] Speaker 00:
There's a whole lot of factors in there.

[00:20:50] Speaker 00:
So it's a very conditional type of will you get anything?

[00:20:54] Speaker 00:
I know he's complaining he hasn't gotten any money.

[00:20:57] Speaker 00:
We're a non-party.

[00:20:58] Speaker 00:
We're not involved in this corporate structure.

[00:21:02] Speaker 00:
We don't know if that's the case or not, but what he was getting is a form of compensation.

[00:21:09] Speaker 00:
That's what he was told he would get if there were sales and if LWRC was profitable.

[00:21:15] Speaker 00:
He did not retain all royalty rights.

[00:21:18] Speaker 00:
Even if he had, however, even if he had, that's not enough.

[00:21:26] Speaker 00:
There are plenty of cases we cited where retaining that wasn't sufficient.

[00:21:31] Speaker 00:
Two more quick points on illusory argument that he's made because he didn't get anything.

[00:21:38] Speaker 00:
That was not raised below.

[00:21:40] Speaker 00:
He's not preserved that for appeal.

[00:21:45] Speaker 00:
We know he's seeking to enforce the contract.

[00:21:47] Speaker 00:
He's not seeking to rescind it.

[00:21:50] Speaker 04:
What about his argument that the assignment at A-64 is invalid because he never received any consideration for that assignment?

[00:21:59] Speaker 00:
That isn't how... Well, first of all, if he's saying... He says now it's illusory.

[00:22:04] Speaker 00:
He would have to... It wasn't illusory at the time.

[00:22:08] Speaker 00:
It was kind of on the come.

[00:22:10] Speaker 00:
I hope I will get money because I hope you'll make products and I hope you'll sell products.

[00:22:14] Speaker 04:
I'm talking about the assignment.

[00:22:16] Speaker 00:
Yeah.

[00:22:16] Speaker 00:
Oh, in the assignment.

[00:22:18] Speaker 04:
He's saying today that the assignment is an invalid contract.

[00:22:24] Speaker 04:
No consideration.

[00:22:25] Speaker 00:
Well, it recites that there is consideration, and the recitation of consideration alone is deemed to be sufficient.

[00:22:33] Speaker 00:
That also segues into the contracts that Mr. Fishman will talk about, which in fact

[00:22:40] Speaker 00:
There was ample consideration in actually giving up other royalty rights in those documents, but I will let him address that.

[00:22:49] Speaker 00:
The final point I wanted to make was on the unjust enrichment argument.

[00:22:54] Speaker 00:
First, I would note that Mr. Leitner-Weiss didn't really address those arguments below, so we think he's waived them.

[00:23:02] Speaker 00:
We would note that the unjust enrichment contention as stated is preempted by

[00:23:10] Speaker 00:
the Patent Act as to the types of damages it's seeking, as to what it's seeking.

[00:23:16] Speaker 00:
And we've briefed that rather extensively.

[00:23:20] Speaker 00:
The other thing we would note on just enrichment is that it does require, even if it weren't preempted, it would require conveyance of a benefit by Mr. Leitner-Wise, in this case, to Sig Sawyer.

[00:23:36] Speaker 00:
Mr. Court,

[00:23:37] Speaker 00:
deal with preemption?

[00:23:39] Speaker 00:
In a footnote, it did.

[00:23:40] Speaker 00:
It said it doesn't need to reach that because it likely would be preempted to.

[00:23:45] Speaker 00:
It agreed with us.

[00:23:46] Speaker 00:
But I just wanted to note we had raised that below.

[00:23:49] Speaker 00:
The district court said if I need to reach that, I likely would find preemption to.

[00:23:55] Speaker 00:
Thank you very much.

[00:24:03] Speaker 02:
Good morning to the panel and may it please the court.

[00:24:05] Speaker 02:
My name is Noam Fishman and I represent LWRCI.

[00:24:09] Speaker 02:
If I could take just 30 seconds and talk very briefly about the history of the corporate structure here to make sure that that's clear for the panel.

[00:24:17] Speaker 02:
LWRCI currently owns the 581 patent.

[00:24:21] Speaker 02:
LWRCI purchased the assets from the predecessor company, Land Warfare Resources Company, which before that did business as Lightner Wise Rifle Company.

[00:24:33] Speaker 02:
Leitner Wise Rifle Company Land Warfare sold its assets to a company named RIFTEK in 2008.

[00:24:41] Speaker 02:
RIFTEK created LWRC-I and transferred the assets to LWRC-I.

[00:24:47] Speaker 02:
Why does the corporate structure matter?

[00:24:49] Speaker 02:
Why is this relevant to the panel?

[00:24:51] Speaker 02:
Well, that's the distinction between Appendix 65, the assignment that Mr. LaFont referenced in his argument,

[00:25:01] Speaker 02:
and Appendix 64, that's the fundamental difference.

[00:25:04] Speaker 02:
If the panel takes a look at Appendix 65, you'll see that it's dated in 2008.

[00:25:08] Speaker 02:
That's part of the transfer process and the sale of the assets that happened long after Mr. Leitner Weiss left Leitner Weiss Rifle Company.

[00:25:19] Speaker 02:
In 2006, October 2006, that's the relevant time period for determining what, if any, rights Mr. Leitner Weiss has

[00:25:29] Speaker 02:
to this 581 patent that, at the time, was the 141 patent application.

[00:25:35] Speaker 02:
Fundamentally, this case, from LWRCI's perspective, presents one critical question to the court.

[00:25:43] Speaker 02:
Did the district court err in considering a host of agreements that the appellant signed in October 2006 that severed his relationship with the company at the time, Light and Wise Rifle Company,

[00:25:55] Speaker 02:
Can I just ask you a question?

[00:25:57] Speaker 05:
Your discussion caused me to take another look at Appendix 64, because you mentioned it goes to 2006.

[00:26:06] Speaker 05:
Why does the notary's signature have a date of 2008?

[00:26:11] Speaker 02:
You'll see that in a bunch of other documents, Your Honor.

[00:26:14] Speaker 02:
That's the date that the notary's authority expires.

[00:26:18] Speaker 05:
Oh, I see.

[00:26:19] Speaker 02:
It's the expiration date.

[00:26:20] Speaker 02:
And it's actually a little bit smudged here.

[00:26:22] Speaker 05:
Yeah, I can't read that.

[00:26:23] Speaker 02:
Yeah, you'll see in other documents that I'm going to walk through that these are the same dates.

[00:26:28] Speaker 02:
Got it.

[00:26:28] Speaker 02:
Yeah, OK.

[00:26:32] Speaker 02:
The district court disagreed and respectfully other BRCI submits this panel should as well for four reasons.

[00:26:41] Speaker 02:
First, there was no abuse of discretion at the district court level.

[00:26:44] Speaker 02:
The district court considered the declaration of Kevin Bernstein, who is a corporate officer for both RIFTECH and LWRCI.

[00:26:53] Speaker 02:
Mr. Bernstein authenticated the contracts that are kept in the ordinary course of business at RIFTECH's offices.

[00:27:00] Speaker 02:
And these contracts were produced to the court as they are kept in the ordinary course of business.

[00:27:07] Speaker 02:
The district court, Judge Hazel,

[00:27:10] Speaker 02:
pointed out and relied upon the fact that Mr. Leitner-Weiss did not submit any opposing declaration with his opposition papers before the district court.

[00:27:22] Speaker 02:
Now, Mr. Leitner-Weiss on appeal has argued this dovetails into the notice argument he makes in his papers.

[00:27:30] Speaker 02:
He argues that he lacked notice that the district court might convert this motion from a Rule 12 motion to a Rule 56 motion.

[00:27:38] Speaker 02:
He makes that argument despite the fact that LWRCI captioned its motion before the district court as a motion to dismiss, or in the alternative, a motion for sub-rejudgment.

[00:27:49] Speaker 02:
He makes this argument despite the fact that LWRCI submitted the declaration attached to the motion to dismiss, along with the contracts.

[00:27:58] Speaker 02:
And he makes this argument despite the fact that he makes the same arguments before Judge Hazel at the district court that he makes before this court.

[00:28:08] Speaker 02:
He argued there that the court should discredit the declaration.

[00:28:11] Speaker 02:
He argues here that the court should discredit Mr. Bernstein's declaration.

[00:28:16] Speaker 02:
These are the same arguments.

[00:28:17] Speaker 02:
And the fact that he made the same arguments below undermines the notion that we have a notice issue in this case.

[00:28:24] Speaker 02:
Third, we have a series of documents, and I'll take a minute to walk through the documents systematically, that fundamentally form the foundation of his exit from Leitner Weiss Rifle Company.

[00:28:38] Speaker 02:
And that you'll see these documents were executed on the same day with the same notary public authenticating the signatures of all of the documents.

[00:28:47] Speaker 02:
And fourth and finally, and it's an issue that I don't believe the district court addressed, but it's an issue of law that this panel can address de novo.

[00:28:55] Speaker 02:
And we've addressed it in our briefs, which is a statute of limitations issue.

[00:28:59] Speaker 02:
These contracts or these rights are from 2005 or 2006.

[00:29:05] Speaker 02:
We're talking about a contractual right to a royalty payment that Mr. Leitner Weiss himself alleges he was never paid at any point in time.

[00:29:14] Speaker 02:
So under the discovery rule, he had to bring that claim, assuming Virginia law applies and that's the law that the district court applied, within five years.

[00:29:25] Speaker 02:
He didn't even bring this claim within five years of RIFTEC.

[00:29:28] Speaker 05:
I don't understand, because your friend who disclaimed knowing a lot about the details, but said that there were

[00:29:34] Speaker 05:
The royalty payment was conditioned on a whole bunch of circumstances.

[00:29:38] Speaker 05:
So if that is the case, then it could have been five years where the circumstances were such that he wouldn't have been entitled.

[00:29:45] Speaker 05:
So his claim to the royalty may only have arisen.

[00:29:48] Speaker 05:
more recently.

[00:29:49] Speaker 02:
Yes, Your Honor.

[00:29:50] Speaker 02:
But under the case law, which we cited in our brief, there's a duty to investigate.

[00:29:54] Speaker 02:
So if you believe that you potentially are entitled to a royalty, you have a requirement to ask.

[00:29:59] Speaker 02:
And so he would have to plead in his complaint facts that sufficiently show that he did an inquiry.

[00:30:05] Speaker 02:
He's on inquiry notice that he has to bring.

[00:30:07] Speaker 02:
So he never asked.

[00:30:09] Speaker 02:
Certainly he hasn't pled it, which is required to do under the statute of limitations, jurisprudence.

[00:30:16] Speaker 02:
So if it's OK with the panel, we'll just take a second before I lose my time to walk through these agreements somewhat systematically.

[00:30:25] Speaker 02:
They start on Appendix 141, which is the termination letter that I believe Judge Chen referenced in his questioning to Mr. LaFont.

[00:30:32] Speaker 02:
Appendix 141 itself references four other documents, one of which is the assignment that Ms.

[00:30:38] Speaker 02:
Carroll discussed before the court.

[00:30:40] Speaker 02:
The other is an equity purchase agreement which forms the foundation, among other things,

[00:30:45] Speaker 02:
for the consideration that Mr. Leitner Weiss received upon his exit from the company.

[00:30:50] Speaker 02:
You'll see this was a privately held company.

[00:30:53] Speaker 02:
There's no open market for the securities, and Mr. Leitner Weiss received $192,000 for his exit from the company.

[00:31:00] Speaker 02:
That's part of the equities purchase agreement that's at appendix 156.

[00:31:07] Speaker 02:
You'll see, just focusing on 141 for a second, that there's a release in here.

[00:31:11] Speaker 02:
And most notably, about five lines from the bottom,

[00:31:15] Speaker 02:
Mr. Leitner-Wise releases, and I'll quote, I'm starting two words from the end on the right, one, two, three, four, five lines from the bottom, all claims arising out of your employment, and all claims arising out of the employment agreement, which is itself a capitalized term.

[00:31:32] Speaker 02:
We can go to sub i in the middle of the page to see that the employment agreement is defined as that certain employment agreement dated April 11, 2005,

[00:31:43] Speaker 02:
which Mr. Lightener-Wise forms as the foundation for the royalty payment that he believes he's owed.

[00:31:49] Speaker 05:
Now, this document is not signed by Mr. Lightener-Wise, right?

[00:31:55] Speaker 05:
It's signed by somebody who types it out of a company?

[00:32:00] Speaker 02:
On page 144, Your Honor.

[00:32:03] Speaker 05:
Oh, I'm looking at 143.

[00:32:05] Speaker 05:
I see.

[00:32:07] Speaker 05:
OK.

[00:32:08] Speaker 02:
And you'll see also, that's actually where I was going to go next,

[00:32:11] Speaker 02:
You'll see that it's dated October 31, 2006, the same date that it dates the assignment that we talked about before.

[00:32:17] Speaker 02:
Also, it is notarized by the same notary.

[00:32:20] Speaker 02:
And you'll see to your questioning before, Your Honor, the date that her commission expires.

[00:32:27] Speaker 02:
OK.

[00:32:27] Speaker 05:
We're out of time.

[00:32:29] Speaker 05:
Thank you.

[00:32:29] Speaker 02:
Thank you, Your Honor.

[00:32:38] Speaker 03:
First of all, I'd like to ask

[00:32:40] Speaker 03:
I'd like to say, Mr. Fishman, that's a fine argument that is made, but it's an argument that belongs as a closing argument at the end of the jury trial, which Mr. Leitner-Weiss did not receive.

[00:32:53] Speaker 03:
The questions that have repeatedly been raised by Mr. Fishman are issues of fact to which there has never been any discovery and there has never been any

[00:33:08] Speaker 03:
jury trial to which Mr. Leitner-Wise is entitled under the seventh amendment.

[00:33:14] Speaker 03:
Mr. Leitner-Wise, upon his removal from this company, all copies of the contracts which he had in his office were stolen.

[00:33:28] Speaker 03:
His office was broken into.

[00:33:31] Speaker 03:
His office was cleaned out.

[00:33:32] Speaker 03:
He never had a copy of any of these contracts until 2014 when they were discovered by an immigration attorney who was working on his case and found a copy of his employment agreement in his file.

[00:33:52] Speaker 03:
The employment agreement specifically states that his right

[00:33:59] Speaker 03:
to these royalties, none of the other compensation, but his right to these royalties shall survive his termination.

[00:34:09] Speaker 03:
His assignment in 2006 says in consideration of a dollar and other consideration, which is specifically referenced in the employment agreement, this

[00:34:28] Speaker 03:
They have J. Patrick Bryan, who is the signature to so many of these documents, lives 60 miles away.

[00:34:36] Speaker 03:
He's in Middlebrook.

[00:34:38] Speaker 03:
I'll go pick him up in my car and bring him in here.

[00:34:41] Speaker 03:
But yet, the person who signed the documents, the person who is most able to authenticate these documents, was never brought in, was never subject to cross-examination, never authenticated any of these documents.

[00:34:54] Speaker 03:
But instead, Mr. Bernstein, who had nothing to do with this execution of this document, says that, oh, I was in charge of that company, too, or some company that's related to it.

[00:35:03] Speaker 03:
So I get to make a business records declaration about something I know absolutely nothing about.

[00:35:08] Speaker 03:
Your time has expired.

[00:35:09] Speaker 03:
Thank you, Your Honor.

[00:35:09] Speaker 03:
For these reasons and the reasons set forth in my briefs, I ask that this matter be reversed and remanded to the district court.

[00:35:16] Speaker 03:
Thank you.

[00:35:16] Speaker 03:
We thank both sides.