[00:00:01] Speaker 01: We have four argued cases this morning. [00:00:04] Speaker 01: The first is number 15-1027, Mendenhall Limited versus Cortis Corporation. [00:00:11] Speaker 01: Mr. Pildes, is that how you pronounce it? [00:00:16] Speaker 00: May it please the court, Richard Pildes for Mendenhall. [00:00:20] Speaker 00: The district court dismissed our Rule 60B motion for one reason and one reason only, because as a lower court, it was required to hold that Opperman remain good law. [00:00:31] Speaker 00: On this appeal, we now know that that conclusion is wrong as a matter of law. [00:00:36] Speaker 00: The Supreme Court has authoritatively held that Ackerman is not good law. [00:00:40] Speaker 00: And as a result, the only basis the district court provided for its decision is now legally erroneous. [00:00:48] Speaker 00: The court could therefore simply vacate that. [00:00:50] Speaker 01: Your problem, though, is the Supreme Court in Gonzales said that these kind of circumstances where you fail to appeal [00:00:59] Speaker 01: don't come within rule 60P6. [00:01:01] Speaker 01: So how do you deal with that? [00:01:05] Speaker 00: Well, Your Honor, first on this particular point we're making now, which is a small point in the case, our claim is that the only basis for the decision below is not a legally valid basis. [00:01:17] Speaker 01: I understand that. [00:01:18] Speaker 01: But at the time, you knew that the trial law was before the Supreme Court, that they granted cert. [00:01:26] Speaker 01: You argued before the district court that that might result in a change in the latches jurisprudence and yet you didn't take a direct appeal at the time and let the time run. [00:01:41] Speaker 01: And Gonzalez appears to say that under those circumstances, that's a bar to 60B6 relief despite a change in the law. [00:01:49] Speaker 01: So how do you deal with that? [00:01:51] Speaker 00: The way we deal with that, Your Honor, is relying on the general principle that all courts of appeals have recognized, including this court recently in the Micron technology case, which is when an appeal would be futile because clearly established circuit precedent is adverse to the claim, then there is no waiver if an appeal is not taken on that claim. [00:02:14] Speaker 00: Well, that was true in Gonzales too, right? [00:02:18] Speaker 00: I don't believe Gonzalez was a case where the appeal would have been completely futile because there was clearly established precedent that was adverse to the claim being made. [00:02:30] Speaker 01: Wasn't there a clearly established precedent in the 11th circuit that that claim was barred? [00:02:37] Speaker 00: In Gonzalez, Your Honor? [00:02:38] Speaker 00: Yeah. [00:02:40] Speaker 00: In Rule 60B6 context, although this occurs less often there, [00:02:46] Speaker 00: As in virtually every other context of which I am aware, the courts have said that it is futile to bring us an appeal, and you are not penalized for failing to bring an appeal. [00:02:58] Speaker 01: Those are cases where the issue comes up on direct appeal and the argument is it wasn't raised below. [00:03:03] Speaker 01: Those cases are almost entirely not Rule 60B6 cases. [00:03:11] Speaker 01: And Gonzales is a rule 60B6 case and does involve a change in law. [00:03:17] Speaker 01: And the court said, no, 60B6 relief is not available because you failed to appeal, to seek re-hearing or even to seek certiorari. [00:03:26] Speaker 00: These cases also arise on habeas and in other collateral contexts in which a claim was not pressed on direct review and is being brought up on 60B6. [00:03:38] Speaker 04: What do you think Gonzales said? [00:03:40] Speaker 04: We're not going to treat this as a habeas issue. [00:03:42] Speaker 04: We're just going to resolve it under 60B6. [00:03:44] Speaker 04: So I'm not sure I'm following why it matters that Gonzalez was a habeas, or was attempted to be argued as a habeas case. [00:03:53] Speaker 00: I was talking about other cases beyond Gonzalez as well. [00:03:56] Speaker 00: For example, Judge Sutton in the Sixth Circuit has said Rule 60B6 is an exception by its nature to waiver rules when you would have had to be [00:04:08] Speaker 00: prophesizing a profound change in law in the face of adverse circuit precedent. [00:04:14] Speaker 00: Rule 60B6 is the correct way to bring a challenge based on a change of law that took place after the time for appeal had run. [00:04:23] Speaker 04: What do you do about the Gonzales' language saying under 60B6 you have to have extraordinary circumstances and a change in law is not an extraordinary circumstance? [00:04:34] Speaker 00: Yes, we agree with that, Your Honor. [00:04:36] Speaker 00: Our position here is not that because there was a profound change in law, that by itself constitutes extraordinary circumstances. [00:04:43] Speaker 00: So the extraordinary circumstances here are basically two considerations. [00:04:48] Speaker 00: The first is the nature of the change in law that's at issue here, the nature and magnitude which many courts have relied on. [00:04:56] Speaker 00: What the Supreme Court said in Petrella and then confirmed in SCA [00:05:01] Speaker 00: is that federal courts simply lack legitimate power to employ latches in cases at law. [00:05:09] Speaker 00: The Supreme Court has described what the lower court did here on the substantive opinion as a violation of the separation of powers. [00:05:19] Speaker 00: That's extremely strong language. [00:05:21] Speaker 00: The Supreme Court rarely describes a lower court as having violated the separation of powers. [00:05:27] Speaker 00: And the reason the lower court did that is it thought in essence it had the power to sit as a court in equity when the Supreme Court said, no, you are sitting as a court of law when Congress has passed a statute of limitations. [00:05:41] Speaker 00: So the nature of the change in law here is the Supreme Court is saying this is a court that acted without any legitimate federal authority, that this court exceeded its powers under the constitution. [00:05:56] Speaker 00: It intruded into the domain of Congress. [00:05:59] Speaker 00: In many ways, the court's analysis is tantamount to saying that the judgment was essentially avoid judgment. [00:06:06] Speaker 00: They don't use that language. [00:06:07] Speaker 00: No, they don't. [00:06:08] Speaker 00: They don't use that language. [00:06:09] Speaker 00: But everything the court says here about the separation of powers principles that are at stake, the inappropriateness of judges overriding Congress's considered policy judgments. [00:06:21] Speaker 00: What's the other reason? [00:06:22] Speaker 00: The other reason is that the way [00:06:25] Speaker 00: These principles were applied in the facts of our case. [00:06:29] Speaker 00: Further illustrates the extraordinary circumstances with respect to us in particular. [00:06:33] Speaker 00: So the latches issue here was not some ancillary issue, obviously. [00:06:37] Speaker 00: It was a central issue to the case. [00:06:40] Speaker 00: It resulted in the complete dismissal of our entire case, therefore precluding us from getting to a jury to raise our infringement for substantive issues. [00:06:51] Speaker 00: And the reason the judges applied latches against us [00:06:55] Speaker 00: flies in the face of exactly the policies the Supreme Court said Congress was trying to establish by creating provisions like Section 286. [00:07:03] Speaker 00: The Supreme Court said in Petrella, we understand intellectual property holders should not be in the position of having to rush into court to sue to protect their rights. [00:07:15] Speaker 00: We understand, or Congress understood, there were good reasons to allow for delay, to allow suits to mature, to decide whether it's worth [00:07:23] Speaker 00: candle to pursue litigation. [00:07:26] Speaker 00: We give up certain rights in doing that. [00:07:28] Speaker 00: We can't go back beyond the six-year period. [00:07:31] Speaker 00: So if we wait, as we did here, and try to negotiate a business relationship with Johnson & Johnson, when that falls through and we turn around and sue, in this case the judge said, I've decided you waited too long. [00:07:47] Speaker 00: It's unreasonable to have delayed this long. [00:07:50] Speaker 00: In fact, the judge invoked the six-year presumption against [00:07:54] Speaker 00: bringing suit to apply latches to us. [00:07:57] Speaker 00: Why didn't you appeal when the Supreme Court was hearing Petrella? [00:08:01] Speaker 00: You know, Your Honor, it's interesting that the SCA case, which was pending in this court at the time Petrella was also before the Supreme Court, we went back and looked. [00:08:12] Speaker 00: SCA itself did not even brief Petrella at that time. [00:08:16] Speaker 00: We saw the possibility, certainly, that Petrella [00:08:21] Speaker 00: if various contingencies fell into place. [00:08:24] Speaker 01: We raised it. [00:08:25] Speaker 00: We mentioned it. [00:08:25] Speaker 01: You were well aware of it. [00:08:26] Speaker 01: You raised it in the district court. [00:08:29] Speaker 01: You said that this might result in a change in law, and yet you didn't appeal. [00:08:33] Speaker 00: Yes, because there were many contingencies involved between the fact that the court was hearing the case and whether the decision would come out in the way it did, and then whether we would rest on such broad principles that it would actually have direct application to the Patent Act. [00:08:49] Speaker 02: Does the Second Circuit address this particular issue that you have to follow an appeal in order to preserve your 60B sixth motion? [00:08:59] Speaker 00: I don't believe that the Second Circuit's opinions, if you look at the Vivendi case, which is one of the more recent statements from the Second Circuit on how it treats waiver issues in a somewhat analogous context, a change in law from the Supreme Court, it's not 60B. [00:09:15] Speaker 00: The Second Circuit said the same thing all the circuits have said, which is, [00:09:19] Speaker 00: You do not have to bring an appeal that flies in the face of well-established circuit precedent. [00:09:27] Speaker 00: In fact, no court of appeals wants a doctrine to the contrary. [00:09:31] Speaker 00: Otherwise, you're flooded with protective appeals that fly in the face of well-established circuit precedent. [00:09:38] Speaker 00: Here, it's not just circuit precedent. [00:09:40] Speaker 00: It's an en banc decision of this court. [00:09:43] Speaker 00: For nearly 25 years, it was the governing law in the patent context. [00:09:47] Speaker 00: It hadn't been challenged or undermined in any way in the patent context. [00:09:52] Speaker 00: You couldn't undermine it through other courts of appeals decisions because of the role of this court in the patent context. [00:09:59] Speaker 00: And so we did not file an appeal that the district court or a panel of this court could not have acted on because it was bound by Aukerman. [00:10:12] Speaker 00: before Petrella had been decided and changed the law. [00:10:16] Speaker 00: We did what we're supposed to do, I believe, which is we didn't bring a frivolous appeal in the teeth of well-established circuit precedent. [00:10:24] Speaker 00: A frivolous appeal? [00:10:25] Speaker 00: Well, the appeal would have been frivolous in the sense that there was no authority yet from Petrella that made it clear that Aukerman had been substantially undermined. [00:10:37] Speaker 00: So if we had brought that appeal [00:10:39] Speaker 00: This court would have simply reapplied Aukerman, presumably. [00:10:43] Speaker 00: And that would have been the end of the matter. [00:10:46] Speaker 01: What about the Second Circuit's decision in Stevens versus Miller, which seems to say that the failure to appeal bars relief? [00:10:55] Speaker 00: Your Honor, I think every time you see one of those statements, the failure to bring an appeal bars relief, it's in a context where there was a calculated decision not to appeal for some set of reasons. [00:11:06] Speaker 00: None of those cases involve claims of futility or that an appeal would have been inappropriate. [00:11:12] Speaker 01: Providence situations, Gonzalez included, where the governing law was against the party at the time, and they failed to appeal in the light of that law, which was changed later on. [00:11:28] Speaker 01: And the Supreme Court said, you should take an appeal and if you don't, [00:11:33] Speaker 01: 60B6 relief is not available to them. [00:11:36] Speaker 00: Again, we agree 60B6 is not a substitute for appeal. [00:11:40] Speaker 00: And of course, when we come to you on 60B6, we have a higher burden than we would on a direct appeal. [00:11:46] Speaker 00: Because we have to show extraordinary service. [00:11:47] Speaker 01: But those cases are situations in which there was a change in law. [00:11:50] Speaker 01: And yet the Supreme Court said you should have appealed in the teeth of the existing law if you wanted to challenge it. [00:11:58] Speaker 00: Your Honor, I don't believe there's any law that says, in the 60B6 context, the failure to take an appeal which would be futile in the sense that clearly established doctrine is against it is a complete bar to dissolving. [00:12:13] Speaker 01: Why is that not the case in Gonzales? [00:12:17] Speaker 01: Wasn't at the time that they failed to take the appeal, wasn't the law against them? [00:12:23] Speaker 00: At the time they failed to take the appeal, the law was [00:12:28] Speaker 00: I don't remember at the moment if the law was as firmly established as this court precedent in Aukerman was established. [00:12:38] Speaker 02: But in the face of this court entertaining SCA and in the face of the Petrilo decision, wouldn't it have been wise to have taken a protective appeal? [00:12:53] Speaker 00: Well, Your Honor, I just don't think courts of appeals want litigants to be filing protective appeals based on remote contingencies that if the following... Well, if they're remote or they're futile, perhaps not. [00:13:04] Speaker 02: But was this really remote? [00:13:06] Speaker 02: Was this futile? [00:13:07] Speaker 02: Would it have been futile? [00:13:09] Speaker 00: Well, we know it would have been futile in the sense that even after Petrella, the panel of this court in SCA said, we can't do anything about this. [00:13:18] Speaker 00: And the district court couldn't have done anything. [00:13:19] Speaker 02: You're arguing a change in law. [00:13:21] Speaker 02: Yes. [00:13:22] Speaker 02: If a litigant sees the potential for there to be such a large change in law, shouldn't they file a protective appeal to preserve any 60B6 rights they may have? [00:13:33] Speaker 00: Your honor, as this court said in the Micron case, after surveying many courts of appeals, I think there's a citation list that goes on for over a page. [00:13:43] Speaker 00: The common sense approach and the general rule, as Judge Toronto called it, is that [00:13:49] Speaker 00: There is no waiver when you fail to take an appeal in the face of adverse circuit precedent on your issue. [00:13:57] Speaker 00: It's not a 60B6 case, right? [00:13:59] Speaker 00: It's not 60B6, but I'm not clear why you should be penalized in this context uniquely from all other contexts for failing to file protective appeals that would flood the courts [00:14:12] Speaker 00: with these kinds of protective appeals. [00:14:14] Speaker 00: Most of it seems to disagree with you. [00:14:16] Speaker 00: That's the problem. [00:14:17] Speaker 00: Well, the difference in Gonzales, your honor, I believe is that the nature of the change in law there was a much more routine kind of change in law. [00:14:25] Speaker 00: You know, it was a standard statutory interpretation of the habeas statutes. [00:14:30] Speaker 00: And again, what I want to emphasize here is the Supreme court has told us the change in law here goes to issues that are fundamental to the separation of powers, fundamental to the authority of federal courts. [00:14:41] Speaker 00: fundamental to the rule of law because this is a discretionary set of judgments that the court had no power to make under the Supreme Court's decisions. [00:14:53] Speaker 00: And yet it led us to having our entire case being thrown out. [00:14:56] Speaker 00: It's an illegitimate, inappropriate, unauthorized exercise of federal judicial power that violates the separation of powers. [00:15:06] Speaker 00: That's a very profound statement from the Supreme Court. [00:15:11] Speaker 01: I think we're out of time. [00:15:14] Speaker 01: We'll give you two minutes for a bottle. [00:15:16] Speaker 01: Okay, thank you. [00:15:31] Speaker 03: May it please the court, my name is Greg Discant and I represent Johnson & Johnson. [00:15:36] Speaker 03: I think this case is on all fours with Gonzalez in the Supreme Court and Travelers in the Second Circuit. [00:15:42] Speaker 03: And I don't think you really need to look much beyond either one of those two cases. [00:15:46] Speaker 03: Gonzalez is particularly noteworthy. [00:15:49] Speaker 03: The Supreme Court first says it's hardly extraordinary that subsequently after Petitioner's case was no longer pending, this court reached a different interpretation. [00:16:00] Speaker 03: That's not extraordinary. [00:16:01] Speaker 03: It's all the less extraordinary in Petitioner's case [00:16:06] Speaker 03: because of his lack of diligence in pursuing the case. [00:16:09] Speaker 03: What do they mean by that? [00:16:11] Speaker 03: What's the lack of diligence and why does extraordinary have anything to do with it? [00:16:16] Speaker 03: Well, extraordinary has something to do with it because that's the standard under Rule 60B6. [00:16:23] Speaker 03: It is not blameworthy that one chooses not to take an appeal for good tactical reasons. [00:16:30] Speaker 03: You'll get fault for that, but you don't get treated as extraordinary in the Rule 60B6 context. [00:16:36] Speaker 03: And in Gonzalez, the petitioner made a claim contrary to 11th circuit law. [00:16:42] Speaker 03: He lost in the district court in the 11th circuit. [00:16:45] Speaker 03: He was denied leave to appeal in the 11th circuit. [00:16:48] Speaker 03: He didn't seek rehearing in the 11th circuit. [00:16:50] Speaker 03: He didn't file a petition for certiorari. [00:16:54] Speaker 02: Counselor, we have a situation here where both the federal circuit and the Supreme court stayed the case during pending SCA, correct? [00:17:03] Speaker 02: In this case, yes. [00:17:05] Speaker 02: In those situations, shouldn't the court immediately look at and see if an appeal has been filed and dispose of it? [00:17:12] Speaker 02: Why would we and the Supreme Court stay the case pending SCA if the law or the outcomes are going to be that you have to have protected your six rights by filing an appeal? [00:17:29] Speaker 03: I think the answer is that's jumping to the merits of the appeal. [00:17:32] Speaker 03: And I think the easier course for [00:17:34] Speaker 03: all appellate courts, and I think it's the proper courts, is not to prejudge the merits, but rather stay it and then decide what to do after the law has been clarified. [00:17:43] Speaker 02: Should we judge a case on the basis of whether an appeal has been filed or not? [00:17:46] Speaker 03: Yes. [00:17:47] Speaker 03: You should judge a Rule 60B motion. [00:17:49] Speaker 03: Are you saying you should not have stayed the case during... I think it would have been entirely proper had this court chosen to go into the merits of the appeal [00:18:01] Speaker 03: to affirm the district court. [00:18:03] Speaker 03: I think that would have been a proper choice of this court's discretion. [00:18:06] Speaker 03: At the same time, I think it's a wise use of the court's discretion not to engage in the merits of a pending appeal, but it might or might not be affected by a subsequent decision. [00:18:17] Speaker 03: I think that's all that those rulings stand for. [00:18:21] Speaker 02: You would articulate that maybe parties should all file a protective appeal in all cases. [00:18:30] Speaker 03: Well, I think that it depends on what the point of fix. [00:18:37] Speaker 03: I think Ackerman and a whole line of Supreme Court and Second Circuit cases stand for the proposition. [00:18:42] Speaker 03: If you make a free, calculated, and deliberate choice not to appeal and your guess is wrong, you have to pay the penalty in a Rule 60B6 context. [00:18:53] Speaker 03: But that doesn't mean that you should always be filing appeals because [00:18:58] Speaker 03: You've got to have a basis for doing it. [00:19:01] Speaker 03: In this case, this case is particularly blameworthy, and that brings me back to Gonzalez, because the Supreme Court granted certiorari in the case that resulted in the reversal of the 11th Circuit precedent, while Gonzalez's time to seek certiorari was still running. [00:19:21] Speaker 03: It's in footnote 10 of the Supreme Court decision. [00:19:24] Speaker 03: We granted review to resolve the conflict [00:19:27] Speaker 03: Only eight days after the 11th circuit denied petitioner a certificate of approval and well within the 90 day period in which petitioner could have sought certiorari. [00:19:38] Speaker 03: It is indisputable that had he but filed a petition raising the same issue that he now advances, we would have granted him reconsideration in light of our later decision. [00:19:50] Speaker 03: That's what would have happened here had they done exactly the same thing. [00:19:54] Speaker 03: The Supreme Court faulted Gonzalez for not filing a petition for certiorari, protective or otherwise, and the situation's exactly the same. [00:20:06] Speaker 03: Travelers in the Second Circuit is very similar. [00:20:09] Speaker 03: In Travelers, the Second Circuit decided the case, a Rico case was an issue, it decided the case in April, April 12th. [00:20:20] Speaker 03: The case was argued the same issue as pending before the Supreme Court at that moment. [00:20:25] Speaker 03: It was argued two weeks later in the Supreme Court. [00:20:28] Speaker 03: Travelers, for some reason, did nothing. [00:20:31] Speaker 03: I'm sure it was well-represented by competent, well-paid counsel. [00:20:34] Speaker 03: It did not seek certiorari. [00:20:38] Speaker 03: The Supreme Court changed the law within two months and now Travelers lost. [00:20:45] Speaker 03: The Second Circuit said, Aukerman controls. [00:20:48] Speaker 03: You didn't take an appeal, you lose. [00:20:53] Speaker 01: Don't our own rules recognize the appropriateness of arguing on appeal for overruling of prior precedent? [00:21:01] Speaker 03: Of course. [00:21:02] Speaker 03: Especially when there are no circuits that will disagree with this court. [00:21:07] Speaker 03: The only way to change the law in this court is to challenge it in this court. [00:21:15] Speaker 03: You know, when we talk about extraordinary, you know, you take like the only case that's really four square a change in the law case is the terrorist cases in the Second Circuit, where the Second Circuit went out of its way to say, one, the group of disadvantaged plaintiffs had sought to challenge law every step of the way. [00:21:35] Speaker 03: They lost out, the law changed later, and the Second Circuit thought it was unfair to disadvantage one of two identically situated groups of plaintiffs. [00:21:44] Speaker 03: That was extraordinary because they had pursued their remedies. [00:21:48] Speaker 03: Medinol had a completely lackadaisical interest in this issue. [00:21:54] Speaker 03: It knew it was out there. [00:21:56] Speaker 03: It was represented by Professor Arthur Miller, Wright and Miller. [00:22:00] Speaker 03: He told the district court the case is out there, but they didn't embrace it. [00:22:04] Speaker 03: They didn't ask the court to stay the case so it could be decided. [00:22:08] Speaker 03: They didn't file an even perfunctory motion to challenge the existence of laches in [00:22:14] Speaker 03: uh, federal circuit case law, they did nothing. [00:22:19] Speaker 03: And then the case was, you know, the case was argued. [00:22:23] Speaker 03: Uh, we actually attached portions of the Supreme court argument to our post-trial papers. [00:22:29] Speaker 03: And, you know, I think many observers thought that, uh, Laches was going to survive as a defense in copyright law. [00:22:36] Speaker 03: Presumably that's what they thought because they did nothing. [00:22:39] Speaker 03: Uh, but their interest in Laches in patent law. [00:22:43] Speaker 03: And challenging it did not exist until three months after Petrello was decided. [00:22:48] Speaker 03: But for the first time, they said this verdict should be set aside. [00:22:52] Speaker 03: There's an interest in finality here that we all recognize. [00:22:55] Speaker 03: Johnson & Johnson has an interest in finality. [00:22:58] Speaker 03: As we told the district court, when this case was pending in the district court, we were in the process of selling the subsidiary. [00:23:07] Speaker 03: The record shows that with a final judgment against methanol, we did sell the [00:23:12] Speaker 03: subsidiary and J&J agreed to retain the risk associated with this defunct lawsuit. [00:23:19] Speaker 03: That's reliance on the outcome of this judgment. [00:23:23] Speaker 03: You know, there is no basis. [00:23:25] Speaker 03: There's nothing extraordinary about any of this. [00:23:27] Speaker 03: And I haven't even mentioned whether Petrella did or didn't change the law. [00:23:30] Speaker 03: And I think it did not change. [00:23:32] Speaker 04: Can you remind me of the timing? [00:23:33] Speaker 04: Can you remind me of the timing? [00:23:36] Speaker 04: You had just said, I think that [00:23:38] Speaker 04: There was three months after Petrella decided that Mednaw filed its 60B6 motion. [00:23:43] Speaker 04: Can you just walk me through the timing? [00:23:46] Speaker 03: Sure. [00:23:46] Speaker 03: I may be a little bit off on the dates, but essentially the trial was held in January. [00:23:51] Speaker 03: The day before Petrella was argued in the Supreme Court, as Professor Miller told the district judge. [00:23:57] Speaker 03: It was argued in February. [00:23:58] Speaker 03: There were post-trial papers. [00:24:00] Speaker 03: It was decided, I think in April. [00:24:02] Speaker 03: It was decided in April, the time to appeal expired. [00:24:07] Speaker 03: In early May, I think, by the end of May, Petrella had been decided. [00:24:13] Speaker 03: And sometime in August, they came back to the district court asking to file this 60B6 motion. [00:24:21] Speaker 01: Are we then in a situation in which during the appeal period, the same argument existed to them as it did after the appeal period when they filed the 60B6? [00:24:31] Speaker 03: The same argument existed at all times, even without Petrella, because as we know, Petrella took [00:24:37] Speaker 01: The standard principle... But here we have a situation in which during the appeal, during the appeal period, Petrella was decided, right? [00:24:45] Speaker 03: No, no, no. [00:24:46] Speaker 03: Petrella was decided after the time to appeal. [00:24:49] Speaker 03: After the time. [00:24:50] Speaker 03: That's not correct. [00:24:51] Speaker 03: But the argument was open to any litigant who ever wanted to make that argument, that Latchez doesn't provide a defense where there's a statute of limitations provided by law. [00:25:00] Speaker 02: Are you saying that it was on August 15th, the August 15, 2014 conference, [00:25:07] Speaker 02: that Medinol, that's the first time it brings up Rule 60. [00:25:12] Speaker 03: Yes, yes, yes. [00:25:15] Speaker 03: So literally months pass after the final judgment has been entered. [00:25:20] Speaker 03: And it's of a piece with the lack of extraordinary diligence on the part of Medinol at all times throughout this case. [00:25:31] Speaker 03: I frankly think without getting any further into the district court's decision, [00:25:35] Speaker 03: It would have been an abusive discretion for her to grant this appeal. [00:25:40] Speaker 03: Petrella didn't change the law in federal circuit case law, as the SCA panel said, and no one's ever disagreed with that. [00:25:48] Speaker 03: SCA changed the law. [00:25:51] Speaker 03: Petrella didn't. [00:25:52] Speaker 03: Petrella was a copyright case and all it did really was apply settled notions of laches to the copyright statute. [00:26:00] Speaker 03: So I would say there is nothing appealing about this whatsoever. [00:26:04] Speaker 03: And if the court has no further questions, I'm happy to rest on our brief. [00:26:09] Speaker 03: Okay. [00:26:09] Speaker 03: Thank you, Mr. Distant. [00:26:14] Speaker 00: Mr. Pelders. [00:26:17] Speaker 00: Yes, Judge, I wanted to answer your question, not just about Gonzalez, but about a waiver on 60B. [00:26:23] Speaker 00: If you look at our reply brief, the pages 16 to 17, we actually have a number of cases, including U.S. [00:26:29] Speaker 00: Supreme Court cases, the Buck case, the Lildjberg case, [00:26:34] Speaker 00: in which the court took on 60B6 motions and did not hold that the failure to appeal during the direct process was a bar to 60B6 consideration. [00:26:48] Speaker 00: Did they even consider the issue in that case? [00:26:50] Speaker 00: Yes, they did consider the issue. [00:26:52] Speaker 00: They explicitly talked about the fact that this was not a bar to 60B6. [00:26:57] Speaker 01: The failure to appeal? [00:27:00] Speaker 00: The failure to raise an issue on a [00:27:03] Speaker 00: on appeal, yes, or the fail to appeal altogether, yes, your honor. [00:27:06] Speaker 00: And the same thing in the Second Circuit, the Marrero case, which we cite to you and is also at page 16 or 17 of the brief. [00:27:13] Speaker 00: And back on the Gonzales discussion which you introduced, I went back and had a chance to look at the opinion more closely. [00:27:19] Speaker 00: And what the court is holding the litigant responsible for is not acting when the precedent was at odds with the rule in several other circuits. [00:27:29] Speaker 00: that there was an opening that should have been obvious for the appeal there. [00:27:33] Speaker 00: Gonzalez was not a case in this discretionary judgment under 60B6 in which there was a firm, clear, settled, on-box precedent. [00:27:44] Speaker 00: And that is relevant in the discretionary judgment here. [00:27:47] Speaker 01: You were suggesting earlier that you're taking an appeal during the time for appeal would have been frivolous. [00:27:52] Speaker 01: But don't our rules specifically say that it's appropriate to argue [00:27:58] Speaker 01: to preserve an argument for overruling precedent on appeal and that you're not going to be sanctioned for that? [00:28:04] Speaker 01: I did not mean to suggest we would be sanctioned, but I think that- But it's appropriate to do that, right? [00:28:09] Speaker 00: Our rules specifically say that, don't they? [00:28:10] Speaker 00: The rules permit it, but courts don't generally penalize litigants for failing to raise on appeal arguments where existing circuit precedent clearly forecloses it. [00:28:24] Speaker 00: Now, you have to pursue other avenues if you have them. [00:28:27] Speaker 00: And as I say, 6db6 imposes a higher hurdle on us if we go that route. [00:28:34] Speaker 00: And we have to meet the extraordinary circumstances requirement here. [00:28:38] Speaker 00: OK. [00:28:38] Speaker 00: I think, Mr. Poulos, we're out of time. [00:28:39] Speaker 00: OK. [00:28:40] Speaker 00: Thank you very much, Ron. [00:28:40] Speaker 00: Thank you. [00:28:40] Speaker 00: Thank both counsel and cases submitted.