[00:00:02] Speaker 00:
2374, Myco Industries, Incorporated, against Blefax LLC.

[00:00:10] Speaker 00:
Mr. Amadio.

[00:00:18] Speaker 03:
Thank you, Your Honor.

[00:00:19] Speaker 03:
May it please the court.

[00:00:21] Speaker 03:
The district court in this case based its preliminary injunction on two separate legal errors.

[00:00:27] Speaker 03:
This court should reverse.

[00:00:29] Speaker 03:
With respect to the first legal error,

[00:00:31] Speaker 03:
that district court enjoined in a preliminary fashion, Lefax's speech about its patent rights without the required showing of bad faith in direct violation of a long line of this court's precedent, including the Micon Gaming case, Zenith Electronics case, and the GP Industries case.

[00:00:49] Speaker 01:
I have a factual question.

[00:00:52] Speaker 01:
Search as I may.

[00:00:54] Speaker 01:
I did not find any place where there is any evidence that a

[00:01:00] Speaker 01:
customer was actually threatened with a direct suit versus just saying that there's infringement by the manufacturer and that perhaps there would be an action against the manufacturer.

[00:01:14] Speaker 01:
I didn't see any evidence.

[00:01:17] Speaker 01:
Is there evidence in the record?

[00:01:19] Speaker 03:
Judge Romali, you're exactly correct.

[00:01:21] Speaker 03:
You didn't see any evidence because there was no evidence in the record that any threat was ever made to a customer in general, much less to a medical practitioner in specific.

[00:01:30] Speaker 03:
There's no evidence in the record of any kind of that nature.

[00:01:34] Speaker 03:
The most they have, and this is a dispute that the district court said was unresolved, that neither side was more credible, the most that

[00:01:42] Speaker 03:
Michael, the alleged infringer, says happened was they say, Dr. Reinerson, the named inventor said, there is an infringement and I'm going to do something about it.

[00:01:56] Speaker 03:
Words to that effect.

[00:01:57] Speaker 03:
Never threatened any potential customer and never threatened the medical practitioner.

[00:02:01] Speaker 03:
And even those words are contested, because Dr. Reinerson declared that he did not have that.

[00:02:08] Speaker 03:
He did not make that statement that he was going to take action, more that he was going to review with his attorneys and decide what to do.

[00:02:15] Speaker 03:
And the district court found that neither side was more credible about the actual words that were spoken.

[00:02:20] Speaker 03:
Neither Mr. Chote nor Dr. Reinerson, Your Honor, is absolutely correct.

[00:02:24] Speaker 03:
Even if we go with disputed versions of the fact,

[00:02:27] Speaker 03:
No one is asserting that Dr. Reinerson said to a customer, I'm coming after you, or said to a doctor or other medical practitioner, I'm going to sue you.

[00:02:37] Speaker 03:
So there's no threat in the record of any kind of that nature.

[00:02:40] Speaker 01:
So assuming that there were, though, that there were such a statement, would that change your argument about the impact of customer immunity?

[00:02:52] Speaker 03:
The district court here enjoins statements to all customers, not just medical practitioners.

[00:02:58] Speaker 03:
I understand the argument that Michael makes about medical practitioners and they themselves can't be liable for infringement, even though they can be infringers and be the basis for an indirect infringement allegation.

[00:03:11] Speaker 03:
But there is no accusation that such a statement was made to a medical practitioner or to a customer in general.

[00:03:17] Speaker 03:
If there were such a statement to customers in general, distributors, suppliers, supply chain customers, there could still be, as long as it was not in bad faith, those would still be protected statements under this court's precedent.

[00:03:34] Speaker 01:
But follow my hypothetical.

[00:03:37] Speaker 01:
So if there had been a threat to a medical professional that said, I'm going to sue you, knowing that that medical professional is immune from any liability, wouldn't that at least be a basis from which you could infer bad faith?

[00:03:55] Speaker 03:
It would depend then, in my view, it would depend then who said it.

[00:03:59] Speaker 03:
Was it a lawyer, a skilled patent attorney, or is the person who was alleged to have said it a medical doctor, someone who may not be familiar with the statutes governing here?

[00:04:11] Speaker 03:
And did they have bad faith when they said it?

[00:04:14] Speaker 03:
If somebody like a patent lawyer who knows for sure that a suit can't be brought against a surgeon and have damages against the surgeon, and the patent lawyer said that,

[00:04:26] Speaker 01:
Does there have to be subjective bad faith, even though objectively the statement is false?

[00:04:32] Speaker 03:
It has to be.

[00:04:33] Speaker 03:
This court has said several times, objectively baseless.

[00:04:37] Speaker 03:
So I could see a scenario where perhaps, even if the person didn't know, they couldn't sue a surgeon.

[00:04:46] Speaker 03:
If they said it, maybe it could be objectively baseless, because objectively under the statute, you can't get damages from the surgeon.

[00:04:55] Speaker 03:
I've never seen a case on this court going to that exact issue where you had a subjective good faith belief, but a statute shows that you're wrong.

[00:05:06] Speaker 03:
I don't know that I've seen a case in this court where it's gotten down to that level of detail.

[00:05:11] Speaker 03:
But I understand your hypothetical.

[00:05:13] Speaker 03:
It would be a very interesting question.

[00:05:15] Speaker 03:
Here, in contrast, we don't have Dr. Reinerson even alleged to have threatened any medical practitioner with a suit.

[00:05:22] Speaker 03:
We don't have Dr. Reinerson even alleged to have threatened any customer of any kind, medical practitioner or otherwise.

[00:05:30] Speaker 03:
We just have the allegation

[00:05:32] Speaker 03:
And again, it's a dispute that the district court did not resolve because it specifically did not find either side more credible in this, where there may have been generalized statements that the AB max might infringe and he, Dr. Ryerson, may take action.

[00:05:47] Speaker 03:
That's the most that's alleged.

[00:05:49] Speaker 01:
So then the injunction is predicated on the conclusion that there can't be infringement under the district court's

[00:05:58] Speaker 01:
construction of the term.

[00:06:00] Speaker 01:
Now, I understand that your friend on the other side is going to argue there was no actual claim construction, but it's kind of hard to read the district court's opinion and not at least believe that the district court had to construe what the patent covered in order to say there can't be infringement.

[00:06:16] Speaker 03:
Judge Amali, you're exactly correct.

[00:06:18] Speaker 03:
This was the basis for the district court's ruling, and there was a construction.

[00:06:23] Speaker 03:
The district court

[00:06:25] Speaker 03:
found, if we look at pages 12 and 13, that posterior blepharitis and inner margin were material to the 718 patent.

[00:06:34] Speaker 03:
And the decision at page 15 said, well, the patent is limited to treating posterior blepharitis.

[00:06:40] Speaker 03:
And the accused device treats anterior blepharitis.

[00:06:43] Speaker 03:
Therefore, there can't be infringement.

[00:06:45] Speaker 03:
In my reading, that's claim construction.

[00:06:47] Speaker 03:
That's saying the claim covers x. The accused device does not x. Therefore, there can't be infringement.

[00:06:55] Speaker 01:
So do we read the district court as having concluded that that statement of there is infringement?

[00:07:04] Speaker 01:
and I may do something about it, that that statement was, by definition, false?

[00:07:10] Speaker 03:
The district court never made that conclusion.

[00:07:13] Speaker 03:
In fact, if we look at page 19 of the decision, the district court actually said and concluded that there was no record evidence that Dr. Reinerson ever made any false or misleading statements about the AB max.

[00:07:25] Speaker 03:
This is really what's so interesting here, because there's an injunction on speech

[00:07:30] Speaker 03:
And there's this court's precedent saying you have to have bad faith statements.

[00:07:34] Speaker 03:
But then the district court itself, on page 819, found there was no evidence of a godforsaken misleading statement.

[00:07:39] Speaker 01:
Well, clearly the district court was trying to avoid accusing someone of bad faith.

[00:07:43] Speaker 01:
I get that.

[00:07:44] Speaker 01:
But I don't know how you escaped the conclusion that the district court thought a claim of infringement would be false.

[00:07:53] Speaker 03:
The district court on reviewing it certainly construed the claims to be limited to posterior blepharitis.

[00:08:00] Speaker 03:
And for that reason, found that there was a likelihood that Michael would prevail on showing non-infringement.

[00:08:07] Speaker 03:
But the district court did say he did not believe and did not find evidence that Dr. Reinerson made any false or misleading statements.

[00:08:15] Speaker 03:
And with this, I would go to the point that

[00:08:18] Speaker 03:
Reasonable minds can differ about what a patent covers.

[00:08:22] Speaker 03:
We've heard some arguments today and every day in this court where reasonable minds and attorneys and judges can differ on what a patent reasonably covers.

[00:08:31] Speaker 03:
It has to be bad faith.

[00:08:32] Speaker 03:
It can't just be, I think my claim covers why and it's no, it's why prime.

[00:08:38] Speaker 03:
It has to be bad faith.

[00:08:39] Speaker 03:
You have to know it doesn't cover what you're accusing of being covered.

[00:08:46] Speaker 03:
And here, there's no evidence of any kind.

[00:08:48] Speaker 03:
that Dr. Reinerson was saying that his patent was directed to something that he knew it wasn't directed to.

[00:08:55] Speaker 03:
No evidence that in some cases this court has seen where Dr. Reinerson was asserting a patent he knew to, for example, have been expired.

[00:09:04] Speaker 03:
I think that you're accusing somebody of infringing a patent, and you know it's expired.

[00:09:08] Speaker 04:
Can I ask you, what kinds of statements does your client want to make to customers that the injunction precludes it from making?

[00:09:19] Speaker 03:
Right now, it's a two-supplier market, and customers are coming to my client saying, well, why should I keep buying your patented device, the BLEF-X device,

[00:09:30] Speaker 03:
when the EV Max is available at a cut rate.

[00:09:33] Speaker 03:
It's cheaper.

[00:09:34] Speaker 03:
Why should I buy from you instead of buying a cheaper one?

[00:09:37] Speaker 03:
And one of the things my client would like to be able to say is, well, mine is the patented original innovative one.

[00:09:45] Speaker 03:
The other one that's being sold is an infringement.

[00:09:47] Speaker 03:
And I'm taking action to address that.

[00:09:49] Speaker 03:
But that is an infringing copy.

[00:09:53] Speaker 03:
I have the patented original.

[00:09:54] Speaker 03:
And for some people, they have a concern.

[00:09:57] Speaker 03:
And they'll respect that.

[00:09:59] Speaker 03:
I know I would.

[00:10:00] Speaker 03:
I don't want to buy an infringing device, or at least I would certainly think about it.

[00:10:04] Speaker 03:
And so my client wants to be able to talk about his patent rights, wants to be able to point to the fact that there is a litigation ongoing.

[00:10:12] Speaker 03:
And that this is a question.

[00:10:13] Speaker 04:
And that litigation conceivably could result in the

[00:10:19] Speaker 04:
the other side's product being taken off the market and the owners of the products might not be able to get spare parts?

[00:10:26] Speaker 03:
It could be, very well.

[00:10:28] Speaker 03:
I mean, we have asked for an injunction in that case.

[00:10:30] Speaker 03:
This is a very straightforward substitution case in a two supplier market.

[00:10:37] Speaker 03:
There's no reason for their product to be on the market.

[00:10:40] Speaker 03:
It's the same as our product.

[00:10:42] Speaker 03:
It's an infringing copy.

[00:10:43] Speaker 03:
And if their product disappeared, our product could cover the supply.

[00:10:47] Speaker 03:
So it's a perfect situation for an injunction, and we have asked for it.

[00:10:51] Speaker 03:
And if they were then caught short with the infringing product, they would have to switch the swabs that are replaceable on the product itself.

[00:11:00] Speaker 03:
Exactly your point, Judge Toronto.

[00:11:02] Speaker 03:
And taking even a step back, I imagine some people in the world don't want to buy an infringing product or one that has a cloud over it until the cloud is resolved.

[00:11:13] Speaker 00:
But in your view, would any restraint be acceptable?

[00:11:18] Speaker 00:
Is it conceivable to devise some sort of condition that keeps the competitive situation sufficiently fluid?

[00:11:30] Speaker 00:
After all, if the patentee prevails, it can recover its losses monetarily.

[00:11:36] Speaker 03:
I think, Your Honor, I would

[00:11:42] Speaker 03:
say under this court's precedent, especially the GP Industries case, and I know you're as fully aware of the GP Industries, where this court has said these injunctions on speech about patent rights should be a rarity, and they're strong medicine only to be used in a rare circumstance.

[00:11:59] Speaker 03:
Here, Judge Newman, I don't think there's any need for that strong medicine.

[00:12:03] Speaker 03:
My client isn't out there in the marketplace wanting to say anything outrageous.

[00:12:08] Speaker 03:
He just wants to be able, when customers come and ask him about his product, to say,

[00:12:12] Speaker 03:
My product is patented.

[00:12:14] Speaker 01:
Let's go down the road then with Judge Newman's question.

[00:12:18] Speaker 01:
So we say you had to have a bad faith finding, and there wasn't one.

[00:12:24] Speaker 01:
So we reverse.

[00:12:26] Speaker 01:
But because claim construction at the preliminary injunction stage, even if it occurs, is preliminary.

[00:12:34] Speaker 01:
And so we don't touch the claim construction.

[00:12:36] Speaker 01:
Now does going out and saying what you want to say

[00:12:40] Speaker 01:
then puts you in a position of bad faith because you've got the district court having construed the claim in a way that says there's no infringement.

[00:12:50] Speaker 03:
I would argue that it should not, because we've got a good faith basis that our construction is correct.

[00:12:57] Speaker 03:
But Judge O'Malley, I think to your point, that actually suggests and supports this court correcting the district court's erroneous claim construction at this point.

[00:13:08] Speaker 03:
Because there is a finding in preliminary on claim construction, it was a basis for the erroneous injunction.

[00:13:16] Speaker 03:
This court does have

[00:13:18] Speaker 03:
the ability to correct that preliminary claim construction.

[00:13:22] Speaker 03:
And by doing so, it would avoid, Judge Amali, the exact circumstance you're speaking of where you avert the injunction.

[00:13:31] Speaker 03:
My client then tells a customer that there's an infringement suit.

[00:13:36] Speaker 03:
And then we get another allegation from Michael that, well, that statement is now in bad faith.

[00:13:42] Speaker 03:
To your point, Judge Amali, because there has been a preliminary claim construction

[00:13:46] Speaker 03:
We would argue an erroneous one, but they would say, well, it's the only one on the record, and they're not supporting it in the Markman construction.

[00:13:54] Speaker 03:
They're now saying indefiniteness.

[00:13:56] Speaker 03:
So if this court doesn't correct the claim construction, that construction could just hang out there.

[00:14:02] Speaker 01:
Well, that's what I was going to ask you.

[00:14:03] Speaker 01:
So you've got a Markman hearing that's set for pretty soon, right?

[00:14:07] Speaker 01:
April?

[00:14:08] Speaker 03:
Yes.

[00:14:08] Speaker 01:
And there's been briefing on the claim construction?

[00:14:12] Speaker 03:
Yes, Your Honor.

[00:14:13] Speaker 01:
And you're saying that there

[00:14:15] Speaker 01:
asking for a claim construction now that's different from the one that the district court adopted at the preliminary injunction phase?

[00:14:21] Speaker 03:
Yes, Your Honor.

[00:14:22] Speaker 03:
It surprised me completely, but they did.

[00:14:25] Speaker 03:
They didn't go to the district court on claim construction and say the claims are limited to posterior blepharitis, which was the exact basis of seeking their preliminary injunction.

[00:14:35] Speaker 03:
they now go and say, oh, the claims are indefinite.

[00:14:38] Speaker 03:
We don't know what inner edge of the eyelid margin means or inner edge portion of the eyelid margin means.

[00:14:44] Speaker 03:
They have walked away completely from their argument that the claims are limited to treating posterior blepharitis.

[00:14:51] Speaker 03:
So if this court doesn't correct that erroneous claim construction,

[00:14:55] Speaker 03:
It might continue to exist in the record, even though it was preliminary only, but it might be a basis for another allegation that some statement about Dr. Reinersen's patent rights are somehow in bad faith, even if this court were, and might be correctly, to reverse

[00:15:13] Speaker 03:
the injunction on speech under the court's long line of precedent.

[00:15:16] Speaker 03:
So that's why, as the second ground, I would ask the court to correct the erroneous claim construction.

[00:15:23] Speaker 03:
There was the district court found that claims to be limited to treating posterior blepharitis, that's wrong under plain language, given that there's no disavowal and no definition.

[00:15:34] Speaker 03:
It's wrong under claim differentiation.

[00:15:37] Speaker 03:
Because claim 15, the dependent claim, specifically says contacting the inner margin, which is where posterior blepharitis occurs.

[00:15:46] Speaker 03:
Claim 1, the independent claim, doesn't say it.

[00:15:49] Speaker 03:
It says contacting between the eyelashes and the inner edge of the inner margin, so the whole eyelid margin.

[00:15:55] Speaker 03:
So if we look at claim differentiation, if we look at claim language, the claim construction is wrong.

[00:16:01] Speaker 03:
Moreover, if we look at this court's libel Flarsheim decision and the MIT versus Shire decision, this court in those cases looked at claim language and proposed amendments that were talked about during prosecution but never got entered.

[00:16:14] Speaker 03:
never made it into the final claims.

[00:16:17] Speaker 03:
That's what happened here.

[00:16:19] Speaker 03:
Below, Michael pointed to a statement in one examiner interview record that they say supports a finding of disavowal or disclaimer.

[00:16:27] Speaker 03:
But when the examiner asked to put that language in the claim, the applicant said no and disagreed.

[00:16:34] Speaker 03:
And the final claims as issued never included that language limiting independent claim on to contacting just the inner half of the island margin.

[00:16:45] Speaker 03:
So under the light of Flarsheim and MIT Scharkis, as I just mentioned, this court has said a person of ordinary skill looking at the whole record wouldn't assume that that language was binding, or that a disclaimer was made, or that the proposed amendment was put in, because they would have seen

[00:17:01] Speaker 03:
that it didn't make it into the final claims as issued.

[00:17:04] Speaker 03:
So for those reasons, we would ask that not only the injunction on speech be reversed, because there's not the required finding of bad faith.

[00:17:13] Speaker 03:
In fact, there is a finding that there was no showing of bad faith in the record, again, on page 19 of the district court's decision.

[00:17:20] Speaker 03:
And that's why we ask for reversal and not mere vacatur on that.

[00:17:24] Speaker 03:
But we also ask that this court reverse the incorrect

[00:17:28] Speaker 03:
Claim construction.

[00:17:29] Speaker 03:
I know it's only a preliminary claim construction.

[00:17:31] Speaker 03:
But Judge O'Malley, to your exact point, if it's allowed to hang in the record, given that they've now changed their arguments at the margin hearing, it could be a basis for further arguments about good faith or bad faith statements about the patent rights.

[00:17:44] Speaker 03:
And we might be right back here taking up the court's time on the same issue that I think can be avoided if the court corrects the erroneous claim construction at this stage.

[00:17:56] Speaker 00:
Let's hear from the other side.

[00:17:58] Speaker 00:
Let's have some rebuttal.

[00:18:04] Speaker 00:
Mr. Smith.

[00:18:05] Speaker 02:
Thank you, Your Honors.

[00:18:08] Speaker 02:
May it please the Court.

[00:18:11] Speaker 01:
Can I ask on that last point, are you prepared to stipulate that there was no limitation in the claims or disclaimer of anything other than

[00:18:26] Speaker 01:
What is it, posterior blepharitis?

[00:18:28] Speaker 01:
Did I pronounce that correctly?

[00:18:31] Speaker 02:
Yeah, that's correct, Your Honor.

[00:18:33] Speaker 02:
What we would stipulate to is that the claims mean what the claims say.

[00:18:38] Speaker 02:
And in the context of this case, where we're talking about anterior blepharitis versus posterior blepharitis, and the key here is the court had a fact finding on anterior blepharitis, which limited it to basically at the edge of the eye, including the eyelashes.

[00:18:54] Speaker 02:
And posterior was everything.

[00:18:56] Speaker 02:
and posterior to that.

[00:18:58] Speaker 02:
And so what we would stipulate is the language in the claim, which says contacting a portion of the eye between the eyelashes and the inner edge of the eyelid constitutes the portion of the eyelid which is affected by posterior blepharitis.

[00:19:13] Speaker 02:
And that's kind of our position with what the district court did.

[00:19:16] Speaker 02:
The district court looked at that claim language.

[00:19:18] Speaker 02:
And it also looked at claim 17, which has slightly different language.

[00:19:20] Speaker 02:
It talks about an inner edge eyelid portion.

[00:19:23] Speaker 02:
But the district court looked at both claims and made a determination that in this argument, which we're talking about anterior blepharitis and posterior blepharitis.

[00:19:31] Speaker 02:
In fact, the AB max, the AB part stands for anterior blepharitis specifically.

[00:19:36] Speaker 02:
So that was the dispute here.

[00:19:38] Speaker 02:
So the court, in reaching that conclusion,

[00:19:40] Speaker 02:
we submit reach the conclusion that that contacting language of the claim was the posterior portion of the eye that would be affected by posterior blepharitis.

[00:19:49] Speaker 02:
When the district court goes through its analysis, it talks in these terms of posterior anterior.

[00:19:54] Speaker 02:
But if you strip that all away and you just look at the actual claim language we're actually discussing here today, and you look at what the court's fact finding, which is not in dispute here, that anterior blepharitis affects the edge of the eyelid and where the eyelash meets it or connects to it,

[00:20:08] Speaker 02:
That does not fall within the area between the eyelashes and the inner edge of the eyelid margin.

[00:20:14] Speaker 02:
So that's our position of why the court reached the conclusion that it did was based on, effectively, a plain, ordinary reading of that contacting language from the claim language.

[00:20:27] Speaker 01:
And I would make the point that- But it seems that the court was actually making a finding of disclaiming anything that had to do with anterior versus posterior.

[00:20:38] Speaker 02:
I think in this context, that's correct.

[00:20:39] Speaker 01:
But you now would not argue for that.

[00:20:44] Speaker 02:
Well, I would argue for that, yes.

[00:20:47] Speaker 02:
In the context of the court's ruling in which the court had a fact finding that interior blepharitis affects the edge of the eyelid and where the eyelashes join in,

[00:20:58] Speaker 02:
The language that ultimately Bluffex adopted with the back and forth of the examiner does exclude that, because it's contacting the area between the eyelashes and the inner edge of the eyelid margin.

[00:21:09] Speaker 02:
And that's what we're actually briefing, and that's what's going to be before the district court on April 16.

[00:21:14] Speaker 02:
We've taken the position that this is actually.

[00:21:18] Speaker 01:
But you would not.

[00:21:19] Speaker 01:
Is it true that you would not currently endorse the claim construction that was in the seminary injunction order?

[00:21:26] Speaker 02:
I would endorse that claim construction because that claim construction limited the claims.

[00:21:31] Speaker 02:
in the context of anterior blepharitis versus posterior blepharitis to the posterior blepharitis section of the eye which is treated, which they do because the area, contacting the area between the eyelashes and the inner edge of the eyelid margin constitutes that area that is treated for posterior blepharitis, as the court SPAC finding on APPX3 concluded.

[00:21:52] Speaker 04:
Have you already filed your written

[00:21:56] Speaker 04:
document on your proposed claim construction?

[00:22:00] Speaker 04:
In that document do you say in the alternative this is indefinite or if not indefinite then we have the following claim construction?

[00:22:13] Speaker 02:
Actually, I drug court to APPX 1102.

[00:22:16] Speaker 02:
It's the claim chart that was part of the appendix here.

[00:22:19] Speaker 02:
It was actually submitted to the court by the parties regarding claim construction, which has now been briefed.

[00:22:24] Speaker 02:
But in that proposal, we have two arguments.

[00:22:28] Speaker 02:
The indefiniteness aspect of this, which isn't really an issue here, but to

[00:22:32] Speaker 04:
Well, it could be a issue.

[00:22:34] Speaker 04:
If you had said, this is indefinite and can't be construed, that would go some way toward undermining the soundness of the district court's preliminary claim construction.

[00:22:46] Speaker 01:
Right?

[00:22:46] Speaker 02:
Yeah, I agree.

[00:22:47] Speaker 02:
Yes, Your Honor.

[00:22:47] Speaker 01:
And don't you actually say in that, in your Markman briefing, that the whole posterior left-rightist point is irrelevant?

[00:22:59] Speaker 02:
When actually construing the claims, if you strip the facts away, and whether there's infringement or non-infringement, yes, it's about construing the actual claim language, which, as the position we put forth at the district court, we broke it into two parts.

[00:23:13] Speaker 02:
Your Honor asked about the indefiniteness aspect, which was raised by counsel.

[00:23:16] Speaker 02:
We are confessing that the term inner edge of the eyelid margin is indefinite, and the inner edge portion of the eyelid margin is indefinite.

[00:23:23] Speaker 01:
But did you say that the posterior blepharitis limitation

[00:23:28] Speaker 01:
Is it irrelevant?

[00:23:32] Speaker 02:
Yes.

[00:23:33] Speaker 02:
It's irrelevant to whether the word between in the contacting the area between the eyelashes and the inner edge eyelid margin means between as not counting the end points, not including the eyelashes, which is what we're talking about here with respect to anterior blepharitis.

[00:23:48] Speaker 02:
or whether it includes that, which is what the left axis position is.

[00:23:52] Speaker 02:
And that's what's being debated at the district court right now, is the use of the word between and what that entails.

[00:23:57] Speaker 00:
Well, do you agree that it's necessary for us to construe the claim in order to decide the question of the preliminary injunction?

[00:24:08] Speaker 02:
For purposes of the likelihood of success on infringement, yes, the court will have to look at this content.

[00:24:14] Speaker 00:
If you construe the claim, that ends it.

[00:24:16] Speaker 02:
It's construed.

[00:24:19] Speaker 00:
Not for one purpose or another?

[00:24:22] Speaker 02:
Yes.

[00:24:22] Speaker 00:
Do you agree that that's necessary?

[00:24:25] Speaker 02:
Yes.

[00:24:26] Speaker 02:
For the court to look at whether or not there's elective success on infringement specifically, and specifically with respect to this contact limitation that we're talking about, the court will have to look at that term to determine whether... Not for infringement specifically.

[00:24:39] Speaker 00:
Let's just talk about claim construction.

[00:24:42] Speaker 00:
Claim is construed objectively.

[00:24:44] Speaker 00:
It's then applied for whatever, validity or infringement.

[00:24:48] Speaker 00:
Yes.

[00:24:49] Speaker 00:
be certain that you're both in agreement that that issue is before us for a decision and must be decided in order to resolve the issue of the injunction.

[00:25:02] Speaker 02:
Now, I would take issue with whether it needs to be decided to resolve the issue of the injunction.

[00:25:06] Speaker 00:
That's my question.

[00:25:07] Speaker 00:
That was my only question.

[00:25:09] Speaker 02:
Because our position is that regardless of the claim construction, regardless of whether there's infringement or not,

[00:25:15] Speaker 00:
Infringement is not before us, is it?

[00:25:17] Speaker 00:
It is in the context of the likelihood of success prong, but with respect to the bad faith aspect of this, which a lot of this has come down to, it's our position that whether or not... Well, faith relates to the injunction, to the speech, does it not to the fact that there's a final decision, or do you disagree with that theory?

[00:25:37] Speaker 02:
I don't disagree with that.

[00:25:38] Speaker 02:
I don't disagree that for purposes of finding whether the court erred in finding non-infringement, the court will have to look at the meaning of the term, the content and limitations specifically.

[00:25:47] Speaker 00:
And is your position that's before us for a final decision?

[00:25:52] Speaker 02:
The construction of that term would be considered yes.

[00:25:56] Speaker 02:
And whether the district court erred in what we believe was reading the plenary meaning of that term to mean contacting between the eyelashes and the inner eyelid margin does not include

[00:26:08] Speaker 02:
Those endpoints.

[00:26:09] Speaker 02:
That would have to be decided.

[00:26:11] Speaker 00:
I just want to be clear that you both agree that we must decide the dispute about claim construction in order to decide the propriety of this preliminary injunction.

[00:26:25] Speaker 02:
Yes.

[00:26:25] Speaker 02:
If the court feels it takes issue with what the district court did with respect to that, yes.

[00:26:28] Speaker 02:
The court will have to address that further.

[00:26:31] Speaker 01:
What about the bad faith?

[00:26:32] Speaker 01:
I mean, can you answer my factual question?

[00:26:35] Speaker 01:
I didn't even see an allegation by you

[00:26:38] Speaker 01:
any customer was threatened with lawsuit?

[00:26:43] Speaker 02:
Yes, Your Honor.

[00:26:44] Speaker 02:
I wrote the court to APPX 522.

[00:26:47] Speaker 02:
And this was part of the record on appeal and at the district court.

[00:26:51] Speaker 02:
And it's an email that was sent by an optometrist to our client after this conference that kind of led to the DJ action that led to where we're at today.

[00:27:01] Speaker 02:
And in that email, he actually said that, and I'm going to read this slowly because it's in the record,

[00:27:08] Speaker 02:
Yesterday, when I took a break from filming at J&J's booth, I walked by the Bluffmex booth.

[00:27:15] Speaker 04:
Right, but let me just interrupt.

[00:27:16] Speaker 04:
This does not say that any customer is threatened.

[00:27:21] Speaker 04:
The customers who are protected by the medical practitioner exemption are infringers.

[00:27:28] Speaker 04:
It says if you infringe, but you're a medical practitioner with a certain method, nevertheless you're not going to be liable.

[00:27:34] Speaker 04:
This doesn't say that whoever it was who was speaking said, I'm going to sue customers.

[00:27:42] Speaker 02:
What I would submit is that by saying that the AB Max infringes, let's look at the claims that we're talking about.

[00:27:47] Speaker 02:
Their methods of using the device.

[00:27:49] Speaker 02:
Who uses the device?

[00:27:50] Speaker 04:
The doctor.

[00:27:50] Speaker 04:
Indirect infringement, where the direct infringer is including medical practitioners, which is perfectly allowed.

[00:27:58] Speaker 04:
That's not barred by 287.

[00:27:59] Speaker 04:
It's just you can't sue the direct infringer.

[00:28:03] Speaker 02:
That is correct.

[00:28:04] Speaker 02:
It does not bar a claim against an indirect infringer.

[00:28:06] Speaker 02:
However, if you look at the objective baselessness of this, if you're talking about the context of direct infringement, it's a medical practitioner.

[00:28:13] Speaker 01:
This email doesn't say that he threatened to take action against any of the medical professionals.

[00:28:20] Speaker 01:
It simply says he's going to take action, totally infringing on his patents.

[00:28:25] Speaker 01:
It's the technology.

[00:28:27] Speaker 01:
That implies just as likely that he's intending to sue the manufacturer, not

[00:28:33] Speaker 01:
In other words, the indirect infringer rather than the direct infringer.

[00:28:39] Speaker 02:
I point the court to GP Industries that talks about the objective baseless standard.

[00:28:45] Speaker 02:
It says the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits.

[00:28:54] Speaker 02:
I would say a doctor that hears this, that I'm going to take action, and looks at that patent, the patent is a whole method on what the doctor's doing with the device.

[00:29:02] Speaker 02:
I understand that, yes, there could be indirect infringement, but a doctor hearing a statement that I'm going to take action on this patent that covers exactly what I do in my office, I think looking at that and the kinds of direct infringement, that would be a threat on the doctor, or could be taken as a threat on the doctor, certainly.

[00:29:18] Speaker 01:
So you don't dispute that bad faith has to be found, you just think there is enough

[00:29:23] Speaker 01:
in the record from which an inference of bad faith could be made?

[00:29:27] Speaker 02:
I would say that there's enough in the record that a doctor hearing Dr. Reinerson's statements could infer that those were about them, and that once you get to that point, it would, by definition, be objectively baseless because of under 35 USA 287 C, they would be immune from liability, and therefore any threat of litigation or elevation.

[00:29:46] Speaker 01:
OK, so we have to take a leap.

[00:29:47] Speaker 01:
We have to say the doctor could infer X,

[00:29:53] Speaker 01:
and acts would be objectively basis.

[00:29:55] Speaker 01:
So that is bad faith.

[00:29:58] Speaker 02:
I would say that a statement that I'm going to take action on a patent that covers exactly what the doctor does doesn't require the doctor to take a leap.

[00:30:07] Speaker 02:
It may require the doctor to look at the patent, but the standard is whether a reasonable litigate would think that they could realistically expect to assess them to merits.

[00:30:15] Speaker 02:
And I think if a litigate looked at the patent, it would be clear that

[00:30:19] Speaker 02:
any kind of litigation or allegation of infringement against a doctor, or where a doctor felt threatened, because in this case the patent covers a method the doctor's using, that there would be no basis under 35 U.S.C.

[00:30:32] Speaker 02:
287 C to conclude that

[00:30:37] Speaker 02:
that that claim could actually be brought against a medical practitioner.

[00:30:40] Speaker 04:
Can I ask you to clarify for me?

[00:30:42] Speaker 04:
I have some confusion about what exactly this sentence in the ordering sentence, defendant, officers, et cetera, are enjoined from making allegations of patent infringement and threatening litigation against plaintiff's potential customers.

[00:31:02] Speaker 04:
So one question, does this enjoin

[00:31:05] Speaker 04:
bringing of litigation against customers?

[00:31:10] Speaker 02:
No, it just bars the allegations of infringement and the threat of litigation.

[00:31:17] Speaker 00:
What do you see allegation to mean to pursue Judge Dorado's question?

[00:31:22] Speaker 02:
We pursue it to mean communications with the customer.

[00:31:24] Speaker 04:
Communication to the customer.

[00:31:26] Speaker 02:
This doesn't say to.

[00:31:28] Speaker 04:
Because this lawsuit involves allegations of patent infringement against the customers.

[00:31:35] Speaker 04:
That's, in fact, the direct infringement on which the indirect infringement is asserted.

[00:31:40] Speaker 04:
That's not covered by this.

[00:31:42] Speaker 04:
This is supposed to be about communications to customers that they either might be infringing and or might be sued.

[00:31:51] Speaker 02:
Yes, Your Honor.

[00:31:52] Speaker 04:
And unless you're right about the claim construction, the allegation that they might be infringing would be perfectly true.

[00:32:04] Speaker 02:
No, Your Honor, because under 35 USC 287C, they would be immune.

[00:32:07] Speaker 02:
No.

[00:32:08] Speaker 04:
That's different.

[00:32:09] Speaker 04:
They're still infringers.

[00:32:11] Speaker 04:
When you read 287, 287 says, certain infringers shall not be liable.

[00:32:19] Speaker 04:
Doesn't it?

[00:32:22] Speaker 02:
It does mention infringement.

[00:32:24] Speaker 02:
I would point the court.

[00:32:25] Speaker 02:
I understand that currently there's no precedent on the statute at this court, so I'm going to point to other courts.

[00:32:30] Speaker 04:
But it has to be the case in order to preserve indirect infringement.

[00:32:36] Speaker 02:
There is case law, and this is correct.

[00:32:38] Speaker 02:
You can look at the actions of the medical practitioners for purposes of deciding indirect infringement for a supplier.

[00:32:45] Speaker 01:
And you can only have indirect infringement if you have direct infringement.

[00:32:51] Speaker 01:
So you have to have actual direct infringers in order to have indirect infringement.

[00:32:56] Speaker 02:
You have to have the action that would constitute direct infringement.

[00:32:59] Speaker 02:
I would submit, and I would point to the MTEL decision that we cited in our brief that talks a lot about the legislative history, that the purpose of this statute was to allow for the suppliers, the micos, to still be liable, but to give this immunity to the medical practitioners to prevent them from being able to do additional advancements in research.

[00:33:23] Speaker 02:
And Senator Frist, in part, said, my legislation is very narrow in scope.

[00:33:31] Speaker 02:
It would simply prevent the enforcement of patents against health professionals or their affiliated facilities for peer procedure patents such as Dr. Peltz.

[00:33:38] Speaker 02:
So it's unfortunate.

[00:33:39] Speaker 04:
And if that's what this does, there's no evidence in the record, assuming that this email is your best, that says the other side ever communicated

[00:33:50] Speaker 04:
to doctors that they might be pursued for liability.

[00:33:57] Speaker 02:
And I would submit that the record shows that there is both the email, and there was also some statements from Mr. Schot, our chairman, that Dr. Ryerson made statements loudly that could be heard at this conference, which is attended by all doctors.

[00:34:09] Speaker 01:
But even his testimony didn't go past this email.

[00:34:12] Speaker 02:
That's true.

[00:34:13] Speaker 02:
It is focused on the AB max infringing.

[00:34:15] Speaker 02:
However, again, I would

[00:34:16] Speaker 02:
I would submit that in this context with the 718 patent, we're talking about a method of using the device.

[00:34:23] Speaker 02:
So the direct infringement, when you read the patent, it's really about the method of a medical practitioner is going to perform in their doctor's eyes.

[00:34:30] Speaker 00:
To be clear about what is covered by this injunction, does that mean how about a press interview?

[00:34:41] Speaker 00:
Suppose a reporter asks, say, I understand there's a debate.

[00:34:46] Speaker 00:
Are they required to deny that there's any confrontation going on?

[00:34:51] Speaker 02:
Required to deny the fact of the litigation?

[00:34:56] Speaker 00:
That's my question for you.

[00:34:58] Speaker 00:
I don't know.

[00:34:58] Speaker 00:
Are they required to do their best to eliminate any public knowledge of this litigation and of the possible infringement?

[00:35:14] Speaker 02:
No, Your Honor, because the injunction doesn't prevent them from making allegations or threats about Michael.

[00:35:19] Speaker 02:
It's silent to Michael.

[00:35:20] Speaker 02:
It's focused on the customers.

[00:35:21] Speaker 00:
So who does the injunction, where is the line as you see it, as to what the injunction permits and does not permit?

[00:35:31] Speaker 02:
We see the line as it enjoins bluffex from making allegations of infringement

[00:35:36] Speaker 02:
are threats of litigation against Michael's customers.

[00:35:39] Speaker 02:
And the key word being against.

[00:35:40] Speaker 02:
It's against the customers.

[00:35:41] Speaker 02:
It's not against Michael.

[00:35:42] Speaker 04:
I must say, I have some trouble with the word against.

[00:35:46] Speaker 04:
I find the word to clearer.

[00:35:50] Speaker 04:
The allegations that they are making in this lawsuit are allegations of infringement against the customers.

[00:35:57] Speaker 04:
But they're not making those allegations to the customers.

[00:36:02] Speaker 04:
I think you mean to the customers.

[00:36:04] Speaker 02:
Well, I'm following the language of the court.

[00:36:07] Speaker 04:
I'm having some trouble with the language of the court.

[00:36:09] Speaker 04:
That's what I'm trying to clarify.

[00:36:10] Speaker 02:
So yes, the injunction prevents them from making these kinds of threats and allegations to the customers and against the customer.

[00:36:20] Speaker 02:
But what I would say is it's to the customers.

[00:36:22] Speaker 02:
And obviously, when you're making that kind of complaint to the customer, the idea would be it's a problem.

[00:36:27] Speaker 01:
But are they allowed to tell the customer that they are suing you?

[00:36:34] Speaker 02:
Yes, there's nothing in here about Michael being enjoined from taking any position as to Michael standing in the case.

[00:36:42] Speaker 00:
So how about the trade journals and newsworthy events?

[00:36:49] Speaker 00:
Those are read by the customers, are they not?

[00:36:53] Speaker 00:
So they would be precluded from conceding, admitting, stating that this litigation is going on.

[00:37:04] Speaker 00:
Enfringement litigation?

[00:37:06] Speaker 02:
No, Your Honor, because the infringement litigation is again, it's limited to allegations against, it's against MICO and it's seeking remedies against MICO.

[00:37:13] Speaker 01:
What if they, what if they said under Akamai, we have to have direct infringers in order to have indirect infringement.

[00:37:21] Speaker 01:
And here among others, the direct infringers would be the doctors, even if they're immune from suit.

[00:37:28] Speaker 01:
What if they said that?

[00:37:31] Speaker 02:
Well, in that situation, that wouldn't be an argument.

[00:37:33] Speaker 02:
That would not be an allegation or a threat against the customer.

[00:37:37] Speaker 02:
It would again be explaining an allegation or threat against Michael.

[00:37:41] Speaker 02:
Maybe in discussing that, they discuss some aspect of the customer.

[00:37:44] Speaker 02:
But it's not directed at the customer.

[00:37:48] Speaker 01:
Do you see why some of this is problematic?

[00:37:50] Speaker 01:
We're talking about speech.

[00:37:52] Speaker 00:
No.

[00:37:53] Speaker 00:
I just wanted to raise the question of bad faith.

[00:37:55] Speaker 00:
So your position is there's no need to show bad faith.

[00:38:00] Speaker 00:
in order to have such an injunction preserved?

[00:38:05] Speaker 02:
No, Your Honor, we believe that the bad faith does need to be shown.

[00:38:08] Speaker 02:
And in this case, the bad faith, with looking at the injunction as being limited to allegations against Michael's medical practitioner customers that under 35 USC 287C, any allegations or threats against those customers would per se be objectively baseless because there's immunity.

[00:38:25] Speaker 00:
No, did you say that the bad faith is in their claim construction?

[00:38:30] Speaker 00:
of infringement.

[00:38:31] Speaker 02:
Bad faith is in the claim of obstruction on infringement.

[00:38:34] Speaker 02:
The district court took the position that, on top of the immunity statute, that because there's no infringement, there could be bad faith, excuse me, that there would be another layer of likelihood of success because of the non-infringement.

[00:38:49] Speaker 02:
But our focus here today is, again, that the injunction is limited to the medical practitioner or customers, and therefore any allegations against those persons would be in bad faith because they're immune under the statute.

[00:39:04] Speaker 01:
argument depends on the conclusion that immunity equals non-infringer.

[00:39:16] Speaker 02:
In part, again, like I said, multiple courts have viewed the statute as a bar on all remedies, and therefore effectively a defense to infringement.

[00:39:27] Speaker 02:
The legislative histories talked about it being in the context of not being able to enforce the patents, again, infringement.

[00:39:33] Speaker 02:
So it's our position that it is ultimately the statute.

[00:39:36] Speaker 02:
It is an immunity-type statute, a defense statute, against an infringement action.

[00:39:40] Speaker 02:
So therefore, in that circumstance, it would be

[00:39:43] Speaker 02:
objectively baseless to make a threat of litigation or an allegation of infringement under that statute.

[00:39:48] Speaker 01:
A threat to the customer to sue the customer directly.

[00:39:51] Speaker 02:
Yes, Your Honor.

[00:39:52] Speaker 01:
That particular class of customer.

[00:39:54] Speaker 02:
Yes, but there's nothing in the record that indicates that there's any other class of customer.

[00:40:00] Speaker 02:
Mr. Chodos, the chairman of MICA, who's the one that's in charge of selling the products, attested to that.

[00:40:05] Speaker 02:
There's evidence that the Algebraush, which is used as part of the AB Max device, is specifically sold for professionals, optometrists, ER physicians, et cetera.

[00:40:14] Speaker 02:
And our FDA submission on the

[00:40:17] Speaker 02:
AB Maxx was also specifically for healthcare professionals.

[00:40:21] Speaker 02:
So the record indicates that this is focused on selling to doctors, selling to ophthalmologists, professionals that treat the eye under the patent.

[00:40:29] Speaker 00:
Anything else for Mr. Smith?

[00:40:31] Speaker 00:
Thank you.

[00:40:32] Speaker 02:
Thank you, Your Honors.

[00:40:41] Speaker 01:
Mr. Armadillo.

[00:40:43] Speaker 01:
What other classes of customers could there be?

[00:40:46] Speaker 03:
Thank you, Judge O'Malley.

[00:40:47] Speaker 03:
Just picking up on that exact point, there are distributors who buy the product, there can be retailers who buy the product, there can be... Retailers to then sell to doctors?

[00:40:58] Speaker 01:
Sure.

[00:40:59] Speaker 01:
Because I'm not letting anybody put something in my eye if they're not a medical professional.

[00:41:05] Speaker 03:
a hope that the only person who would actually be using the device on a human being is a medical practitioner.

[00:41:11] Speaker 03:
But between Michael and the actual doctor using the device, there are going to be a number of layers of distributors, warehousing.

[00:41:20] Speaker 03:
Did you argue that to the district court?

[00:41:23] Speaker 03:
It was.

[00:41:24] Speaker 03:
And we see, yes, we argue that there can be non-medical professional customers.

[00:41:29] Speaker 03:
And the district court actually addressed that in its decision

[00:41:32] Speaker 03:
If we look at the decision at pages 16 and 17, the court even continues, quote, therefore there is also a strong likelihood of success on plaintiff's contention that micro-customers who are not medical practitioners are also not liable for infringement, close quote, relying on the claim construction and the non-infringement analysis.

[00:41:55] Speaker 03:
So even in the section about medical practitioner liability in the decision, pages 16 and 17,

[00:42:02] Speaker 03:
The district court addresses the non-medical practitioner customers of MICO.

[00:42:07] Speaker 03:
So there are such customers.

[00:42:09] Speaker 03:
Council, I think, a couple of times tried to rewrite the injunction to be limited to just medical practitioners, but it's not so limited.

[00:42:19] Speaker 03:
We've read the words several times today, the decision at 23.

[00:42:23] Speaker 03:
quote, making allegations of patent infringement and threatening litigation against plaintiff's potential customers.

[00:42:29] Speaker 03:
So it's any customers, not just medical practitioners.

[00:42:33] Speaker 03:
Moreover, I think, Judge Toronto, you made the point that medical practitioners are the infringers.

[00:42:40] Speaker 03:
They're not going to be held liable, but they are the direct infringers.

[00:42:44] Speaker 03:
Their direct infringement will be the predicate for the indirect inducement and contributory infringement charges.

[00:42:51] Speaker 03:
And the statute plainly provides for that.

[00:42:53] Speaker 03:
287C talks about a medical practitioner's performance of a medical activity that, quotes, constitutes an infringement under section 271A or B. So right in the statute, it's saying,

[00:43:07] Speaker 03:
the doctors can be infringers, they're just not going to be held liable for it.

[00:43:11] Speaker 03:
So Judge O'Malley, this goes to your question to counsel.

[00:43:14] Speaker 03:
Is he equating immunity with non-infringement?

[00:43:17] Speaker 03:
And counsel, I think, said, at least in part, their position is requiring

[00:43:23] Speaker 03:
that the court equate those to, and they're not equatable.

[00:43:27] Speaker 03:
These doctors who are practicing this method will be direct infringers, but they have complete immunity.

[00:43:34] Speaker 03:
The immunity doesn't make them non-infringers.

[00:43:36] Speaker 03:
They are infringers.

[00:43:37] Speaker 03:
That will be the basis of our indirect infringement claims.

[00:43:41] Speaker 03:
If there are any questions the court has, I want to be sure to address any of those.

[00:43:45] Speaker 03:
But otherwise, we'll just listen.

[00:43:50] Speaker ?:
Thank you.

[00:43:50] Speaker ?:
Thank you both.

[00:44:06] Speaker 00:
Okay, that's good.

[00:45:43] Speaker 04:
Thank you.

[00:46:17] Speaker ?:
Yeah.