[00:00:27] Speaker 00:
Judge, where are your rules confusing what the next case is?

[00:00:30] Speaker 00:
Is the R&L Carriers next?

[00:00:31] Speaker 03:
The next case is R&L Carriers versus Qualcomm.

[00:00:36] Speaker 00:
Next and last.

[00:00:39] Speaker 00:
The calendar downstairs had showed a third case added for argument just today.

[00:00:43] Speaker 00:
So let's throw them out.

[00:00:51] Speaker 03:
And the number of the case was 2017, 2469.

[00:00:57] Speaker 03:
When you are both ready, we'll wait until Mr. Vandenberg is set.

[00:01:10] Speaker 03:
Mr. White.

[00:01:16] Speaker 01:
Thank you, Your Honor.

[00:01:17] Speaker 01:
Your Honor, as counsel, may it please the court.

[00:01:20] Speaker 01:
A district court abuses the discretion in finding a case to be exceptional.

[00:01:24] Speaker 01:
if it bases that decision on an erroneous legal conclusion or a clearly erroneous assessment of the evidence.

[00:01:32] Speaker 01:
Here, the district court's decision is replete with both.

[00:01:37] Speaker 01:
Perhaps most emblematic of those errors is the district court's finding that this case is exceptional because RNL continued to assert infringement after supposedly being on notice for several years that the 078 patent was invalid in light of prior

[00:01:55] Speaker 01:
Let me take you to the discovery issue.

[00:01:57] Speaker 02:
Yes, Your Honor.

[00:01:59] Speaker 02:
Regarding that issue in the blue brief, you attempted to justify the decision to unilaterally proceed with subpoenas.

[00:02:09] Speaker 02:
And regardless of what RNL inferred from circumstances, why didn't it just wait until the court convened a status conference or ask the court if

[00:02:20] Speaker 02:
it could proceed with discovery or at the very least notify the court.

[00:02:25] Speaker 02:
I mean, as somebody who sat for a long time at the trial level, I would expect that.

[00:02:33] Speaker 01:
Your Honor, I think from our perspective at the time, we were, we had, the record reflects that we were asking the court and the parties for a stay of discovery for months in advance of that decision on the motion to stay at the end of December of 2014, I believe.

[00:02:50] Speaker 01:
The part of the Qualcomm and the other defendants vigorously opposed that.

[00:02:54] Speaker 01:
They wanted the case to proceed, and they wanted the case to proceed quickly.

[00:02:57] Speaker 01:
In fact, they were putting time constraints on our ability to go out, identify direct infringers, saying, no, they should only have four months to get direct infringers.

[00:03:07] Speaker 01:
The trial court issues a decision saying, we're not going to stay this case.

[00:03:11] Speaker 01:
This case has been around too long.

[00:03:13] Speaker 01:
We're going to get going now, now, now.

[00:03:16] Speaker 01:
And we inferred from that that our clock is ticking.

[00:03:19] Speaker 01:
In other words, we can't sit around and wait for clarification from the district judge because if we sit here for two months, that might be two of our four months to go find direct infringers.

[00:03:30] Speaker 01:
And that's why we said we'd better get started now in abundance of caution.

[00:03:33] Speaker 01:
And we informed the Qualcomm that we're, in fact, going to go do that.

[00:03:38] Speaker 01:
When the court clarified and said, no, that's not what I meant, and I'm waiting for you guys to sit on the sidelines and wait until I clarify on this issue and we decide what we're going to do next, we immediately followed the court's instructions and did what we had done before, which is reach out to the third parties and say, suspend your efforts until we get back to you.

[00:03:56] Speaker 01:
So look, I take responsibility for our misinterpretation of the court's order.

[00:04:03] Speaker 01:
And that's on us for misinterpreting the court's order.

[00:04:06] Speaker 01:
And the court was clear about that as to what it meant.

[00:04:08] Speaker 01:
Does that make the case exceptional?

[00:04:11] Speaker 01:
The 14-day period that we had reached out to people and restarted the subpoena process?

[00:04:16] Speaker 02:
Reached out, you notified them, you sent them to subpoenas saying, the parties have resumed discovery.

[00:04:24] Speaker 02:
That's a correct quote.

[00:04:28] Speaker 02:
Why isn't that independently misleading?

[00:04:30] Speaker 01:
Well, it's incorrect in that the court made sure to tell us that, in fact,

[00:04:36] Speaker 01:
We weren't going to begin third-party discovery until the Court said we were going to.

[00:04:42] Speaker 01:
It's not misleading if we believe that to be the case.

[00:04:46] Speaker 01:
You believe that the parties had agreed to resume discovery.

[00:04:52] Speaker 01:
We believe that the Court had authorized the parties to begin discovery.

[00:04:57] Speaker 01:
Now, saying the parties had agreed, perhaps that was an unfortunate choice of words, but it was

[00:05:05] Speaker 01:
The basic premise of that is whether the parties agree to the court orders it.

[00:05:09] Speaker 01:
The basic premise was we were starting discovery.

[00:05:12] Speaker 01:
And the idea that we had, at that point in time, a short window to do that discovery was, in our minds, a pressing need to go out and start looking for the direct infringers of the district court.

[00:05:26] Speaker 01:
And Qualcomm was asserting that we had to have to maintain the case with a ticking clock.

[00:05:33] Speaker 02:
As I said,

[00:05:37] Speaker 02:
was at the trial level for a long time.

[00:05:40] Speaker 02:
And for 20 years before that, I was a trial lawyer.

[00:05:44] Speaker 02:
I never had any hesitation about calling opposing counsel and saying, hey, let's get the court online for a status conference.

[00:05:51] Speaker 02:
Judges do that all the time.

[00:05:54] Speaker 02:
You don't have to wait two weeks for a decision.

[00:05:57] Speaker 02:
You make the call jointly, and the court will talk to you.

[00:06:03] Speaker 01:
That is my experience in normal cases as well, Your Honor.

[00:06:07] Speaker 01:
I would say that perhaps in this case, the level of communication amongst counsel was not as robust as your normal experience and what my experience has been in other cases.

[00:06:19] Speaker 01:
I will say this.

[00:06:19] Speaker 03:
You mentioned the standard is abuse of discretion.

[00:06:23] Speaker 03:
The trial court here considered the totality of the circumstances.

[00:06:29] Speaker 03:
A variety of issues.

[00:06:32] Speaker 03:
She found that the case was a complete and utter rote, that you lost on almost every single issue, and the issues weren't even close.

[00:06:45] Speaker 03:
That's pretty strong language to overcome on an abuse and discretion standard.

[00:06:51] Speaker 01:
Well, it is strong language.

[00:06:52] Speaker 01:
I will agree with you on that.

[00:06:54] Speaker 01:
I will say this.

[00:06:57] Speaker 01:
Clearly, this case did not go the way that we anticipated.

[00:07:00] Speaker 01:
We dealt with a number of things that we could not control ultimately in the case, including a decision from the Supreme Court that changed the law in the middle of us.

[00:07:10] Speaker 01:
And a determination from this court that I respect and follow that the patent was subtly amended in reexamination on prior art that we did not have prior to filing the lawsuit.

[00:07:23] Speaker 01:
So there were a number of things that occurred in this case that

[00:07:26] Speaker 01:
you know, were not foreseen at the time the case was started.

[00:07:30] Speaker 01:
I will say this, though, Your Honor.

[00:07:31] Speaker 05:
It is, it is... But didn't the Court, I mean, that's important because, because you're right, that the initiation of the case or the investigation before the case, obviously that could not have been grounds for the exceptional case finding because of the original decision that we issued.

[00:07:49] Speaker 05:
But having said that, I thought that she excluded that and that Falcom actually excluded that in the fees that it requested.

[00:07:56] Speaker 01:
Well, the only excluded fees, I believe, were excluded by Qualcomm were the fees that were attributable to its loss on the induced infringement aspect of the appeal in the first appeal in the case on the motion to dismiss.

[00:08:11] Speaker 05:
I thought they excluded all costs on the appeal.

[00:08:15] Speaker 01:
I would have to go back and look to determine that.

[00:08:17] Speaker 01:
I don't remember off the top of my head if that all costs on the appeal.

[00:08:20] Speaker 01:
I think all the fees for the appeal, at least for a third of it,

[00:08:26] Speaker 01:
was it was cut off because of the induced infringement claim which was kept in by this court on the first appeal.

[00:08:34] Speaker 01:
But I believe the remaining fees on the appeal, you know, to toss out the contributory infringement claim, the offer to sell claim, those were kept in by Qualcomm.

[00:08:44] Speaker 01:
But I'd want to go back and double check that.

[00:08:45] Speaker 01:
Okay.

[00:08:45] Speaker 05:
Let's talk about the WEE exam.

[00:08:48] Speaker 05:
You know, I understand that you say you didn't have higher art and you can't

[00:08:54] Speaker 05:
that can't be exceptional for you not to fall on your sword on a priori that you weren't aware of.

[00:08:59] Speaker 05:
But having said that, there is case law that says the failure to respond to the developments in the case could result in a determination that the case is exceptional from that point forward.

[00:09:11] Speaker 01:
And I don't disagree with that case law, Your Honor.

[00:09:13] Speaker 01:
I think that, however, the developments in this case

[00:09:16] Speaker 01:
or not, as the district court found.

[00:09:19] Speaker 01:
You know, the district court concluded that we waited three years before submitting our re-examination petition in the face of this prior art.

[00:09:27] Speaker 01:
In fact, what we know is that we didn't receive the prior art upon which we submitted our re-examination petition until six months before we actually did so.

[00:09:37] Speaker 01:
The Rosenbaum patent was the key piece of prior art that we cited to the Patent and Trademark Office to say,

[00:09:46] Speaker 01:
This thing requires us to submit this for your consideration on re-examination.

[00:09:52] Speaker 01:
We ask that you do so.

[00:09:53] Speaker 01:
Before January of 2013, no one had submitted in their indolidity contentions the Rosenbaum prior art for anything.

[00:10:01] Speaker 01:
It was only that.

[00:10:02] Speaker 03:
All of these considerations were known to the district court, right, who used her discretion in evaluating the totality.

[00:10:10] Speaker 01:
Yes, they were, Your Honor.

[00:10:11] Speaker 01:
But discretion does not include getting facts wrong.

[00:10:15] Speaker 01:
To say that we waited three years to submit to this patent for re-examination in the face of this prior art is clearly incorrect.

[00:10:24] Speaker 01:
We did not get the Rosenbaum patent until six months before that re-examination.

[00:10:29] Speaker 01:
When you look at our re-examination petition, the Rosenbaum patent is connected with every single one except NNM.

[00:10:39] Speaker 01:
which had been cited in February of 2012 or 2010.

[00:10:44] Speaker 01:
But we submitted that only because we knew if we didn't, we would be asserted to be hiding something from the Patent and Trademark Office.

[00:10:52] Speaker 01:
So we submitted out of abundance of caution to say, look, this wasn't before you then.

[00:10:56] Speaker 01:
We didn't have it until the case was filed.

[00:10:59] Speaker 01:
Consider this as well.

[00:11:01] Speaker 04:
But the finding- But it was NNM that the court was looking at, not Rosenbaum, right?

[00:11:07] Speaker 01:
I'm not entirely sure what the court was looking at.

[00:11:09] Speaker 01:
It might have been talking about NNM, but the simple point is that NNM by itself was only one of the several pieces of the re-examination petition that was submitted.

[00:11:20] Speaker 01:
The vast majority of the re-examination petition that was submitted was based upon Rosenbaum in combination with the February 2010

[00:11:28] Speaker 01:
in validity contentions.

[00:11:30] Speaker 05:
It was that... Wasn't it NNM that the board relied upon in rejecting certain of the claims?

[00:11:35] Speaker 01:
Well, NNM was part of that process, but we disagreed with that, obviously, with the board in terms of its rejection of NNM, and we were able to craft what we thought were non-substantive changes to the patent through that process that got the patent over and above that prior art.

[00:11:52] Speaker 01:
I think one of the important points is that the underlying basis and premise of the district court's conclusion is

[00:11:58] Speaker 01:
that somehow the patent was invalidated in this process.

[00:12:01] Speaker 01:
It wasn't.

[00:12:03] Speaker 02:
I want to give you a chance to respond to something that was raised in the red brief.

[00:12:08] Speaker 02:
And that is, at 46, at the bottom, in the blue brief, you say that that conclusion flies in the face of this court's holding in Special Devices, Inc., that under Section 285, quote, the amount of the fee award must bear some relation to the extent of the misconduct.

[00:12:27] Speaker 02:
And in the red brief, they say, you quote, misleadingly omitted a key part of the sentence.

[00:12:38] Speaker 02:
And it looks pretty key to me.

[00:12:39] Speaker 02:
That is, what the whole sentence says is when the attorneys be under US 285 are awarded solely on the basis of litigation misconduct.

[00:12:55] Speaker 02:
and then keep going to what you said, I want you to respond to that.

[00:13:01] Speaker 01:
I'm searching through the briefs right now to find that particular point.

[00:13:06] Speaker 02:
Yeah, go to 56, and you'll see the language that you've cropped.

[00:13:11] Speaker 02:
56 is the red group, and it's 46 of your blue groups.

[00:13:16] Speaker 01:
I'm going to my, actually, my reply brief to respond to that particular point.

[00:13:22] Speaker 01:
I apologize, Your Honor, without having, maybe I can address this in rebuttal if I have an opportunity to go back to look at that case in the court.

[00:13:29] Speaker 02:
Fine.

[00:13:30] Speaker 02:
I take those things seriously.

[00:13:31] Speaker 01:
And I understand your respect.

[00:13:33] Speaker 01:
I'll take a look at that.

[00:13:34] Speaker 03:
Get right back to me.

[00:13:34] Speaker 03:
You're into your rebuttal now, so you can save it and postpone later.

[00:13:39] Speaker 01:
Thank you, Your Honor.

[00:13:41] Speaker 03:
Mr. Vandenberg.

[00:13:45] Speaker 00:
Thank you, Your Honor, and may it please the Court.

[00:13:49] Speaker 00:
Judge Beckwith.

[00:13:50] Speaker 00:
is a veteran judge who was deeply involved in this multi-district litigation case for more than eight years.

[00:14:00] Speaker 00:
She did not hand off any aspect of this case to a magistrate.

[00:14:05] Speaker 00:
She personally handled virtually every motion that was brought to her in the case, and she personally conducted more than 15 conferences with the parties.

[00:14:17] Speaker 00:
So she was

[00:14:19] Speaker 05:
by far in the best position.

[00:14:21] Speaker 05:
Let's get to the substance, OK?

[00:14:26] Speaker 05:
Yes, please.

[00:14:28] Speaker 05:
So she relied on three disparate pieces to say that the entirety of the case was exceptional, right?

[00:14:36] Speaker 00:
I don't think that's quite correct, Your Honor.

[00:14:38] Speaker 00:
She identified three specific things, but then in her fourth, she had a fourth for sure that was considering the overall

[00:14:46] Speaker 00:
circumstances of the case, and as Judge Lurie mentioned, the utter route of R&L by all... Well, partially the utter route was because the law changed on 101, right?

[00:14:57] Speaker 05:
Well... I mean, that was a dramatic change, and we've said so in terms of whether or not people have waived any argument with respect to 101.

[00:15:05] Speaker 00:
That was one particular aspect of the utter route.

[00:15:10] Speaker 00:
And even on that one, as I believe you mentioned, the law is clear that a party needs to reassess

[00:15:15] Speaker 00:
their position as the case goes on.

[00:15:17] Speaker 00:
I don't have the year of Alice right off the top of my head, but it was in 2017 when that issue finally came to the court.

[00:15:25] Speaker 00:
So even on that issue, they're required to reassess.

[00:15:29] Speaker 00:
They were required to reassess on the validity issue.

[00:15:32] Speaker 05:
Part of the- Yeah, but even after Alice, our court struggled with the application of it, as did everybody else.

[00:15:40] Speaker 05:
I mean, are we supposed to say that everyone that

[00:15:43] Speaker 05:
fought a 101 motion by definition that those cases are all exceptional?

[00:15:48] Speaker 00:
Well, again, her decision wasn't any one thing in particular.

[00:15:53] Speaker 00:
The other route was on all issues.

[00:15:56] Speaker 00:
And that sentence is broad enough to encompass all defendants.

[00:16:00] Speaker 00:
So it's not just the things that are identified relative to Qualcomm.

[00:16:03] Speaker 05:
Well, but you can't award Qualcomm fees based on what happened with other defendants.

[00:16:08] Speaker 00:
No, but in evaluating the overall circumstances of the case,

[00:16:13] Speaker 05:
Well, that's the case in every time we have an MDL that the court is allowed to just say, well, you know, there was defendant A, and even though they had a great case against defendant C, I'm going to say that it's exceptional because they didn't have a great case against defendant A. What the judge can do is look at the conduct relevant to Qualcomm in the context of the overall case.

[00:16:36] Speaker 00:
So, for example, you see several times she referenced that

[00:16:41] Speaker 00:
an argument relative to Qualcomm was similar to what the plaintiffs had argued relative to Pitt, Ohio, which is the case that went directly to summary judgment.

[00:16:52] Speaker 00:
It didn't come to this court.

[00:16:54] Speaker 00:
And ultimately, fees were awarded because they never were able to come forward with any evidence to support their infringement allegations.

[00:17:01] Speaker 00:
And certainly, for her to say, look, I'm going to look at that.

[00:17:05] Speaker 00:
I'm going to look at the conduct relative to Qualcomm in the context of what I've seen from them

[00:17:11] Speaker 00:
in the entire case was certainly reasonable and not an abuse of discretion for her to have done.

[00:17:20] Speaker 05:
Well, when we get to, assuming we get past the exceptionality finding and we get to the B award, part of my problem is that GX has said that

[00:17:31] Speaker 05:
There is no causal relationship.

[00:17:34] Speaker 05:
There needs not be any causal relationship between the conduct cited in support of the court's exceptional case finding and the fees incurred by FARCOM.

[00:17:43] Speaker 05:
That's not a correct statement of the law, is it?

[00:17:45] Speaker 00:
I'm sorry.

[00:17:46] Speaker 05:
Where are you quoting from?

[00:17:47] Speaker 05:
I'm quoting from the court's opinion.

[00:17:49] Speaker 00:
Yes.

[00:17:50] Speaker 00:
I'm not recalling that particular sentence.

[00:17:56] Speaker 00:
She certainly, she quoted this court as saying she was not required

[00:18:00] Speaker 00:
when the overall circumstances of the case show exceptionality, she was not required.

[00:18:05] Speaker 05:
We have certainly said that in some instances, the entirety of fees may be appropriate.

[00:18:11] Speaker 05:
But we have said there has to be a causal relationship, and we had to say that because the Supreme Court said it.

[00:18:18] Speaker 00:
Correct, Your Honor.

[00:18:18] Speaker 05:
You have to say how much of the fees are tied to these specific findings of misconduct.

[00:18:26] Speaker 05:
And while she at the end said it was a total route, she really only cited three separate

[00:18:30] Speaker 00:
Well, she did mention the other pieces, so I don't want to give up on that.

[00:18:35] Speaker 03:
She cut back on the fees, didn't she?

[00:18:37] Speaker 00:
Right.

[00:18:37] Speaker 00:
First of all, she did not award Qualcomm all of its fees.

[00:18:41] Speaker 00:
The question came up earlier, and I can clarify that for certain.

[00:18:44] Speaker 00:
Qualcomm did not see any fees for the appeal to this court.

[00:18:49] Speaker 03:
She deducted $180,000, $182,000.

[00:18:52] Speaker 00:
And in addition to what Qualcomm didn't even include in their request, as you say.

[00:18:56] Speaker 05:
How much did Qualcomm exclude, and what did it exclude?

[00:19:00] Speaker 00:
the entire appeal to this court in 2011 and 2012, and it excluded a third of its costs associated with the time period where that motion to dismiss was before the district court and laid out in its very detailed fee request the other things that were going on in that same time frame that justified two-thirds of the time.

[00:19:24] Speaker 00:
And there were a number of other smaller things that were excluded in terms of

[00:19:30] Speaker 00:
timekeepers with all billing hours, also pointing out that Qualcomm actually had a cost sharing relationship with another one of the defendants, and so it wasn't seeking any of the fees that were incurred relative to Qualcomm, but that Qualcomm didn't actually pay for, that weren't billed to Qualcomm.

[00:19:52] Speaker 00:
The other thing that I think is important on this issue of the amount of fees awarded is that the things that the judge did identify are not

[00:20:01] Speaker 00:
specific, not simply specific, instances of litigation misconduct.

[00:20:07] Speaker 00:
They do go to the fundamental strength of the case.

[00:20:12] Speaker 05:
You know, let's remember that Qualcomm was not accused... Did you argue or move for summary judgment of anticipation based on NNM?

[00:20:21] Speaker 00:
We did not, Your Honor.

[00:20:22] Speaker 00:
As most courts do, they have a schedule in which they want to hear issues, and that was not an issue that

[00:20:31] Speaker 00:
was was right before the court.

[00:20:34] Speaker 05:
Did you ask her?

[00:20:35] Speaker 05:
Did you say, look, this is this one is key and it can be dispositive?

[00:20:39] Speaker 05:
We did so clear that NNM was anticipatory.

[00:20:42] Speaker 00:
We did.

[00:20:42] Speaker 00:
We did not, Your Honor.

[00:20:43] Speaker 00:
But I do want to clarify the record on this issue because counsel keeps trying to say that when they went to the patent office in 2013, that

[00:20:55] Speaker 00:
you know, it really had nothing to do with NNM.

[00:20:57] Speaker 00:
That was something that was focused on by the Patent Office, not by us.

[00:21:00] Speaker 00:
We were focused on the Rosenbaum reference.

[00:21:03] Speaker 00:
That just simply is not correct.

[00:21:06] Speaker 00:
They were the ones that identified NNM in their re-examination request as the only anticipatory reference that was being submitted in re-examination.

[00:21:20] Speaker 00:
This wasn't some, you know, this is just part of our duty of

[00:21:23] Speaker 00:
candor or read our long IDS.

[00:21:25] Speaker 00:
This was the anticipatory reference they brought to the patent office.

[00:21:31] Speaker 00:
And this was three years after they had told the judge that they had closely studied the prior art cited by the defendants and that none of them called into question at all the validity of their patent.

[00:21:48] Speaker 00:
So again, this idea that NNM just came out of nowhere

[00:21:53] Speaker 00:
to them is just unsupportable by the record here, and certainly was not an abuse of discretion for Judge Beckwith to conclude that that was an important aspect that went to the heart of the strength of this case.

[00:22:12] Speaker 00:
And its continued litigation.

[00:22:13] Speaker 00:
And its continued litigation.

[00:22:15] Speaker 00:
And let's also not lose sight of the contributory infringement pleading.

[00:22:19] Speaker 00:
Yet there were only two theories of liability here.

[00:22:22] Speaker 00:
Qualcomm was not a direct infringer.

[00:22:24] Speaker 00:
It was a contributory infringement and inducement.

[00:22:28] Speaker 00:
So half of their case got taken away on a pleading that, as Judge Beckwith, I think, was very certainly within her discretion and I think is correct for her to find, never should have been pled because it was clear on the face of their own pleading that Qualcomm's

[00:22:49] Speaker 00:
software and hardware had substantial non-infringing uses.

[00:22:55] Speaker 00:
Let me also talk briefly about that third aspect of the judge's order, the violation of a third-party discovery.

[00:23:02] Speaker 00:
Clearly Judge Beckwith gave that a lot of weight, but it was appropriate for her to do so in this circumstance for a couple of extra reasons that didn't come up in the discussion earlier this morning.

[00:23:18] Speaker 00:
One of them is that

[00:23:19] Speaker 00:
This was not the first time that this judge had experienced what she considered to be inappropriate behavior by the plaintiff in this case.

[00:23:29] Speaker 02:
Again, it might... Were there communications back and forth between counsel?

[00:23:34] Speaker 00:
There were communications.

[00:23:35] Speaker 00:
As soon as the defendants received notice of this reactivation of subpoenas, they reached out to

[00:23:45] Speaker 00:
the plaintiff pointed out it was contrary to the order, and stop, and we're going to get this in front of the judge as soon as we can.

[00:23:51] Speaker 00:
And they didn't at that point say, oh, I guess you're right.

[00:23:55] Speaker 00:
We'll back off.

[00:23:56] Speaker 00:
It wasn't until we got it in front of Judge Beckwith, and that did happen quickly.

[00:24:02] Speaker 00:
But they did force this issue to actually go before her.

[00:24:07] Speaker 00:
The other ask.

[00:24:09] Speaker 02:
Well, I suppose my question is more along the lines

[00:24:14] Speaker 02:
Your opposing counsel said, well, this is a case where we weren't talking to each other in the normal course.

[00:24:21] Speaker 02:
Were there communications going back and forth in the normal course?

[00:24:24] Speaker 00:
Oh, I'm sorry.

[00:24:25] Speaker 00:
Yes, there were many communications going back and forth in the ordinary course.

[00:24:30] Speaker 00:
The other reason, I think, that Judge Beckwith recognized this as a particularly important aspect is because we are talking about not just third parties in the abstract, but customers.

[00:24:44] Speaker 00:
Judge Beckwith's a veteran judge, and she knows that whenever you start subpoenaing customers, you are risking interfering with customer relationships.

[00:24:57] Speaker 00:
And here, we weren't talking about one or two subpoenas.

[00:24:59] Speaker 00:
We were talking about dozens of really broad, onerous subpoenas that had been issued to these customers.

[00:25:06] Speaker 00:
Qualcomm had gone in the first time to ask to have these stayed because of the danger with folks.

[00:25:12] Speaker 00:
And so, given that,

[00:25:14] Speaker 00:
When RNL, four months later, unilaterally reactivates those subpoenas, issues brand new subpoenas, it's not surprising and certainly very reasonable for Judge Beckwith to have viewed that as a major transgression, that when viewed with these other things that are identified in her order, render this case exceptional.

[00:25:43] Speaker 00:
Just briefly, Your Honors, on, again, going back to the issue of the amount of the fees, Judge Beckwith's order on that, again, did exclude a substantial amount of Qualcomm's fees.

[00:25:59] Speaker 00:
Qualcomm excluded part of them.

[00:26:01] Speaker 00:
She excluded still more.

[00:26:03] Speaker 00:
And this Court's Homeland Housewares case

[00:26:07] Speaker 00:
is sort of directly on point.

[00:26:09] Speaker 05:
Well, actually, no.

[00:26:09] Speaker 05:
Those cases are the cases that you cite for the proposition that you can award all fees and you don't have to specifically say that this dollar relates to that is because in those cases, it was the entirety of the litigation that was the basis for the exceptional case finding.

[00:26:27] Speaker 05:
It is not the same thing as, I mean, it is a misstatement of the law for her to say,

[00:26:34] Speaker 05:
there is no causation requirement.

[00:26:37] Speaker 05:
There is a causation requirement.

[00:26:39] Speaker 05:
We have said in exceptional circumstances that where it so pervades the litigation, then you don't have to say why you're dividing it up.

[00:26:49] Speaker 05:
But the normal requirement, the one the Supreme Court has laid down, is that there has to be a causal relationship.

[00:26:57] Speaker 05:
And I guess my problem is if she misstates the law,

[00:27:02] Speaker 05:
and then proceeds toward fees with a misunderstanding of the law, how can I be comfortable that she got it right?

[00:27:09] Speaker 00:
Again, the Supreme Court cases that deal with that causation requirement are specifically in the realm of litigation misconduct.

[00:27:19] Speaker 00:
And that's where Section 285 is, as the Supreme Court said in Octane Fitness, it's broader than that.

[00:27:25] Speaker 00:
It requires the totality of the circumstances and to look at overall

[00:27:30] Speaker 00:
whether the case stands out in terms of the strength of the arguments and the way in which it was litigated, which I think you can interpretate.

[00:27:38] Speaker 05:
Well, that goes to the exceptionality finding.

[00:27:39] Speaker 05:
That's different than the propriety of the particular field work.

[00:27:44] Speaker 00:
Right.

[00:27:45] Speaker 00:
Then I think the ultimate answer there is what she ended up with did reflect the extent to which the case was exceptional.

[00:27:53] Speaker 00:
She did look at the overall circumstances.

[00:27:55] Speaker 00:
She did conclude that she identified the three specific instances, at least two of which go to the strength of the case, in addition to litigation and misconduct.

[00:28:06] Speaker 00:
And then also discussed the overall route, which, again, goes to what's identified in octane fitness, which is the overall strength of the case.

[00:28:20] Speaker 00:
Unless your honors have any further questions.

[00:28:22] Speaker 03:
Thank you, counsel.

[00:28:24] Speaker 03:
Mr. White has some more public time.

[00:28:33] Speaker 01:
Thank you, Your Honor.

[00:28:34] Speaker 01:
I want to start just by talking about the re-examination issue again.

[00:28:37] Speaker 01:
The fundamental premise of the district court's re-examination finding of exceptionality is that we should have known that this patent was going to be invalidated by the prior art, and we should have done something about it sooner.

[00:28:52] Speaker 01:
The problem with that is the patent was never invalidated by the prior art.

[00:28:55] Speaker 01:
We always took the position that the prior art did not invalidate the patent.

[00:29:00] Speaker 01:
We were able to negotiate changes that eventually made this court determine one was a substantive change to this patent, but the prior art never invalidated the patent.

[00:29:10] Speaker 01:
We are not required to go to the PTO for reexamination.

[00:29:13] Speaker 01:
We chose to do so as a litigation strategy earlier than this issue would have been addressed in the normal course of the district court proceeding, giving up the protections that we would have in the district court proceeding.

[00:29:24] Speaker 01:
We went, affirmatively, giving up those protections to seek reexamination, a determination of validity with respect to this patent.

[00:29:33] Speaker 01:
And we came out of it with a valid patent.

[00:29:37] Speaker 01:
How in the world

[00:29:39] Speaker 01:
Can we be exceptional for us to have assumed that this patent would be invalid when it was never invalidated based on the priority?

[00:29:49] Speaker 01:
That, in my opinion, is a clearly erroneous finding.

[00:29:55] Speaker 01:
It cannot be right.

[00:29:56] Speaker 01:
It is not right, setting aside the fact that we did not wait three years.

[00:30:01] Speaker 01:
And to Judge O'Malley's question, Qualcomm nor any of the other defendants ever said to this trial court,

[00:30:08] Speaker 01:
This NNM reference is dispositive.

[00:30:11] Speaker 01:
Give me leave.

[00:30:13] Speaker 01:
And Judge Wallach, you talk about being a trial judge.

[00:30:16] Speaker 01:
How many times have you had in front of you parties who really believed that they had the silver bullet to the plaintiff's case?

[00:30:24] Speaker 01:
Sit back and go, you know, I'm just going to sit back and let the fees run up, let time go on.

[00:30:29] Speaker 01:
If you really believe you have that, you go to the district judge and you say, I want leave to assert now.

[00:30:37] Speaker 01:
that this thing puts an end to this case.

[00:30:40] Speaker 01:
No one, not Qualcomm, not any of the other defendants, did that.

[00:30:43] Speaker 01:
Why?

[00:30:43] Speaker 01:
Because they didn't believe at that time that it was so clear that we were unreasonable for proceeding in this case because they had cited the NNM reference.

[00:30:52] Speaker 01:
We took the position throughout that NNM was not dispositive in this case.

[00:30:58] Speaker 01:
Now, before my time runs up, I want to respond to Judge Wallach's question earlier about the special.

[00:31:04] Speaker 02:
Large audience display.

[00:31:07] Speaker 02:
I won't buy that.

[00:31:08] Speaker 02:
That's a different portion of the quote, and it's used differently.

[00:31:11] Speaker 01:
I will not, Your Honor, following your instructions, I will not attempt to justify it based on large audience display.

[00:31:17] Speaker 01:
I will tell you that's the reason why we put it in there.

[00:31:19] Speaker 01:
We followed the statement from the Court in large audience display that cited that portion of special devices and asserted that as an assertion as the Court did in large audience display.

[00:31:30] Speaker 01:
I will not, however, following your instructions, attempt to justify that.

[00:31:33] Speaker 01:
I will simply explain it.

[00:31:34] Speaker 01:
as to why it was in there.

[00:31:36] Speaker 01:
And I might see my time is up.

[00:31:39] Speaker 03:
I thank you, Your Honors, for your time and your attention.