[00:00:00] Speaker 00:
So the first argued case this morning is number 21, 1538, Apollo Petroleum Solutions Against Nanogas Technologies.

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

[00:00:16] Speaker 02:
May you please report?

[00:00:18] Speaker 02:
There are three things I would like to focus on in this argument today, because I think they're most important to this appeal.

[00:00:24] Speaker 02:
First thing is that in the prior dealings between Mr. Rowe and nanogas,

[00:00:29] Speaker 02:
There were two different definitions of the technology.

[00:00:32] Speaker 02:
First definition was in the collaboration agreement between Mr. Rowe and nanogas, which didn't really define any inventions but required something to be have already been invented and tested by Mr. Rowe and that such things could be assigned.

[00:00:49] Speaker 02:
Second definition was set forth by the arbitrator in permanent injunction in the arbitration decision at page seven.

[00:00:56] Speaker 02:
And there are two different complete things.

[00:00:58] Speaker 02:
So the second definition appears to confusingly try to define an invention, whereas the first one has nothing to do with defining an invention other than something that Mr. Rowe had invented and tested at the time he signed the agreement.

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In the nanogas's reply in its motion to dismiss, they repeatedly confuse these two definitions of the technology as being the same.

[00:01:24] Speaker 02:
And they do this at least eight times throughout the reply.

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And they were very successful in misleading and confusing the district court to believing that they were the same definition.

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And ultimately, the court made us ruling that the 046 patent, practicing the 046 patent by Apollo

[00:01:42] Speaker 02:
would be in violation of the permanent injunction based on this misunderstanding as you can understand from the court's comments at pages 2-3 and 6-8.

[00:01:51] Speaker 01:
The question here is more of the relationship between the parties than it is about the technology or how the technology is defined, correct?

[00:02:00] Speaker 02:
I think that's a secondary issue, really.

[00:02:03] Speaker 02:
I think what is more important are the things I would like to talk about.

[00:02:05] Speaker 02:
I think this confusion about the technology is very important.

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I think the second thing that's very important is that a sign or a stopper clearly does not apply in this case.

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Mr. Rowe never assigned a patent or a patent application to nanogas.

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He had nothing to do with the patent process.

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He vaguely assigned some technology that he had already invented and tested.

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It was entirely up to nanogas.

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that they decided to go for a patent.

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They entirely controlled the entire patenting process.

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They excluded Mr. Rowe from this process intentionally.

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He never signed a declaration.

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He never reviewed the patent application of the 186 patent before it was filed.

[00:02:42] Speaker 02:
So he had nothing to do with this patent process.

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I believe the Minerva, recent Minerva case by the Supreme Court very clearly makes that a sign or a sample does not apply in this matter.

[00:02:51] Speaker 02:
That's the second point.

[00:02:52] Speaker 02:
Third point

[00:02:52] Speaker 02:
is that in defendant's reply, again, in the district court on his motion to dismiss, they repeatedly mischaracterize.

[00:03:00] Speaker 01:
But the bigger problem here is the injunction, right?

[00:03:04] Speaker 02:
It's partly it.

[00:03:04] Speaker 02:
But again, I believe the district court is very confused about this injunction.

[00:03:09] Speaker 02:
both as it's the meaning of the technology, and secondly, the third point I want to make, is that dependent or nanogas has... Did you make that argument below?

[00:03:19] Speaker 04:
Yes.

[00:03:19] Speaker 04:
I thought the argument below was really focused on whether there was privity between Apollo and Mr. Rowe.

[00:03:27] Speaker 04:
No, we actually made all three arguments, Your Honor.

[00:03:29] Speaker 04:
And then on appeal, it feels like you've shifted the focus of your arguments.

[00:03:35] Speaker 02:
That's what Daniel Guest argues, but that's not what happened, Your Honor.

[00:03:38] Speaker 02:
At page, if you look at the appendix,

[00:03:43] Speaker 02:
apollo's opposition to the motion to dismiss page uh... one fifty-two one fifty-three they very clearly say that uh... assigners toples does not apply and at page one fifty-four of the appendix they very clearly say the claims of the 04610 do not read on the technology as defined is that in the argument section of your opposition to dismiss because i understand that your opposition your argument section of your opposition to to dismiss

[00:04:08] Speaker 04:
It begins after page A154.

[00:04:11] Speaker 04:
This was the background section.

[00:04:13] Speaker 02:
Yeah, but we've put it as a fact in there.

[00:04:16] Speaker 04:
So at page 154, we very clearly say that the claims of the 046 patent do not read on... About A155 though, it seems like you almost take it back while you acknowledge that the

[00:04:28] Speaker 04:
the 046 may pertain to the technology as defined in the arbitration decision.

[00:04:33] Speaker 04:
We did say it may pertain and we said it may relate, but at the end of the day... Well, the injunction says you're not allowed to do anything or Mr. Rowe's not allowed to do anything that relates to the technology as defined in the arbitration decision.

[00:04:47] Speaker 02:
Understood, but again, as we've stated,

[00:04:50] Speaker 02:
We argued very clearly that the claims of the 046 patent do not read on the technology.

[00:04:56] Speaker 04:
We didn't argue that in the argument section of your opposition's dismissal.

[00:05:00] Speaker 02:
But we certainly raised it as a fact.

[00:05:03] Speaker 04:
What did the argument section of your opposition dismiss actually argue?

[00:05:08] Speaker 02:
It mostly argues about whether it's privity.

[00:05:10] Speaker 02:
But nonetheless, we have addressed all three of these issues.

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at the district court focuses only on the privity.

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And he assumes that we've conceded the other two points.

[00:05:21] Speaker 02:
But we didn't.

[00:05:21] Speaker 02:
We very clearly argued that a signer's problem does not apply, and that the claims of the 046 patent do not read on the technology as defined in permanent injunction.

[00:05:31] Speaker 01:
Counsel, why don't you, let's take one issue at a time, address the injunction issue.

[00:05:36] Speaker 02:
OK, so there's two definitions of technology.

[00:05:40] Speaker 02:
One is in the collaboration agreement.

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It doesn't define an invention.

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It's just something that Mr. Road already invented and tested at the time he signed the agreement.

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And then based on that and additional evidence presented in the arbitration hearing, the arbitrator awarded that invention to Nanogas.

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They didn't present any other evidence regarding any other invention that Mr. Road invented and tested at the time he signed the agreement.

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So the arbitrator did not award any other thing.

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Now in the permanent junction in the arbitration decision, that language was proposed by nanogas.

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And it makes no sense to the person who ordered the skill yard.

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It doesn't have a clear meaning.

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Mr. Rowe's invention is about stabilizing a gas-infused liquid.

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It has nothing to do with dispersing or dissolving gas into a liquid.

[00:06:27] Speaker 02:
And that's what the definition that nanogas proposes.

[00:06:30] Speaker 04:
As I understand the nature of your complaint, you're saying you need to invalidate these two nanogas patents, right?

[00:06:38] Speaker 04:
That's right.

[00:06:39] Speaker 04:
these nanogas patents dominate your 046 patent?

[00:06:43] Speaker 02:
Yes, we're very clear about that.

[00:06:44] Speaker 02:
That the claims of the 186 patent and the 988 patent would dominate practice.

[00:06:51] Speaker 04:
Yes, those nanogas patents, which were essentially

[00:06:55] Speaker 04:
assigned to nanogas as the arbitrator found in the arbitrator decision, those nanogas patents relate to the technology.

[00:07:07] Speaker 04:
Why wouldn't necessarily the 046 patent also, by the logic of your complaint,

[00:07:12] Speaker 04:
also relate to that same technology, since you are claiming and alleging and acknowledging and admitting that the nanogas patents dominate the 046 patent.

[00:07:24] Speaker 02:
So infringement is one thing.

[00:07:26] Speaker 02:
That's patent claims, which we know the meaning of.

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You have a markman hearing if there's confusion about what it means.

[00:07:31] Speaker 02:
This permanent injunction, we don't know what it means.

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Roe argued from day one that that meeting that they defined makes no sense.

[00:07:38] Speaker 02:
We don't understand what it means.

[00:07:39] Speaker 02:
We argued this to the Seventh Circuit and to the district court that affirmed that judgment.

[00:07:43] Speaker 02:
We've argued that from day one.

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We don't understand what this means.

[00:07:45] Speaker 02:
So how can there's no legal definition of what this definition means.

[00:07:49] Speaker 02:
It doesn't make sense based on plain meaning to the person of ordinary skill in the art.

[00:07:53] Speaker 02:
We have argued this consistently from the arbitration to the district court affirming the judgment to the Seventh Circuit affirming the judgment.

[00:08:00] Speaker 04:
Even though we affirm that they never said what this means.

[00:08:03] Speaker 04:
Is it your position that you cannot practice the 046 patent, because to do so would infringe the nanogas patents?

[00:08:12] Speaker 04:
Yes, that's what we've argued.

[00:08:13] Speaker 04:
That was our complaint.

[00:08:16] Speaker 04:
Have you done any preparation towards making any products directed to the 046 patent?

[00:08:22] Speaker 02:
No.

[00:08:23] Speaker 02:
As we say, no.

[00:08:25] Speaker 04:
Has nanogas done anything to say, hey, we have these nanogas patents.

[00:08:29] Speaker 04:
You better not make one move towards doing anything.

[00:08:33] Speaker 02:
Well, Nanogas has tried to take over inventions, but they haven't done that, no.

[00:08:37] Speaker 04:
then how is there any live case or controversy between these two parties relating to these nanogas patents?

[00:08:46] Speaker 04:
They haven't taken any moves, any affirmative steps, towards their company relating to these patents.

[00:08:54] Speaker 04:
You haven't even begun to do anything in relation to practicing the 046, which you're claiming is dominated by these patents.

[00:09:04] Speaker 04:
You're just two companies that happen to be existing where you don't have any infringing product and you haven't even begun to make anything that could arguably be accused of infringing a product.

[00:09:14] Speaker 04:
So I don't understand why there's even a case of controversy here.

[00:09:17] Speaker 02:
Okay, so Mr. Rowe was hired by Apollo to work on its gas infusion technology.

[00:09:23] Speaker 02:
And so they want to practice this prevention, and they own this 046 patent, which is superior to the patents that Nanogas owns.

[00:09:30] Speaker 02:
But Mr. Rose doesn't want to get close to infringing these patents, because it was very clear through the arbitration hearing that his second invention, the 046 patent, practicing would read on the claims.

[00:09:41] Speaker 02:
We know from the arbitration hearing, and they know that the claims of the patents that Nanogas owned, the 186,

[00:09:47] Speaker 02:
988 patent dominate practice of the 046 patent invention.

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So we know this.

[00:09:53] Speaker 02:
They know this, we know this.

[00:09:54] Speaker 02:
And they've made clear that you cannot do this or we're going to sue you.

[00:09:58] Speaker 02:
Nonetheless, nonetheless... Did they say that?

[00:10:01] Speaker 02:
I do you have an email or a letter that says that?

[00:10:06] Speaker 02:
It was, no I don't have that your honor, but it was an understanding through the other... Did you tell them that that's what's gonna happen?

[00:10:13] Speaker 02:
They've indicated, they're very meticulous.

[00:10:15] Speaker 04:
How did they indicate?

[00:10:16] Speaker 04:
Excuse me.

[00:10:17] Speaker 04:
How did they indicate?

[00:10:18] Speaker 02:
Well they keep coming in from Mr. Rosenbanks, anytime he does anything having to do with gas infusion, they're claiming that they own it.

[00:10:24] Speaker 02:
You know, so they're very carefully monitoring everything he does.

[00:10:27] Speaker 02:
You know, in terms of improvement, he hasn't actually made anything that does it, because he wants to avoid infringement.

[00:10:33] Speaker 02:
But they're getting ready to, if we can get this patent invalidated.

[00:10:37] Speaker 02:
They're ready to move forward on that, Your Honor.

[00:10:40] Speaker 02:
Because the 046 patent is an improvement over the other.

[00:10:46] Speaker 02:
There is a case of controversy, as we stated.

[00:10:48] Speaker 02:
I mean, I believe it's very clear to the parties that Nanogas is monitoring everything Mr. Rowland and Apollo are doing regarding this gas infusion.

[00:10:56] Speaker 02:
And if they have wind that he's infringing the claims of that patent, then they're going to bring a patent infringement lawsuit.

[00:11:05] Speaker 00:
OK.

[00:11:05] Speaker 00:
Let's hear from the other side, and we'll save you rebuttal time.

[00:11:09] Speaker 02:
Thank you.

[00:11:21] Speaker 00:
Mr. Rice.

[00:11:23] Speaker 03:
Thank you, Your Honor.

[00:11:28] Speaker 03:
There is a primary point, one primary point that I'd like to emphasize.

[00:11:33] Speaker 04:
If nanogas threatened Apollo with infringement, if Apollo begins to do, begins to take any steps to start practicing the 046 patent?

[00:11:44] Speaker 03:
No, it is not, Your Honor.

[00:11:49] Speaker 04:
Why didn't your motion dismiss

[00:11:53] Speaker 04:
assert a theory that there's no live case of controversy between these two companies.

[00:11:58] Speaker 03:
We actually mentioned that in the beginning of our brief as an introduction.

[00:12:03] Speaker 04:
I understand you mentioned it, but why didn't you assert it as an alternative theory?

[00:12:08] Speaker 03:
Simply because we thought it would be easier to prove as an evidentiary matter on a 12b1 motion, the other points, because the other points were based on specific concessions by

[00:12:20] Speaker 03:
Apollo, whereas this issue potentially would go down a rabbit hole in trying to look through all the past correspondence to see if there was any statement that could arguably be construed as a threat.

[00:12:38] Speaker 03:
We don't think that existed.

[00:12:39] Speaker 03:
We anticipated they would argue that is the case, and we thought it would be a messier motion.

[00:12:45] Speaker 03:
We thought this would be a cleaner motion.

[00:12:47] Speaker 03:
because this motion was based on concessions.

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For example, the concession that the 046 patent relates to the technology, that came right out of Apollo's own papers.

[00:13:01] Speaker 03:
We thought that would be a neat and clean motion.

[00:13:07] Speaker 03:
That's why we didn't raise the other 12b1 issue.

[00:13:13] Speaker 03:
The primary point from

[00:13:16] Speaker 03:
the Nanogast perspective, Your Honors, is that the issues that Apollo now raises on appeal are issues that Apollo never raised as contested matters before the district court.

[00:13:30] Speaker 03:
And they're not appropriate issues, therefore, to bring up now on appeal.

[00:13:35] Speaker 03:
Apollo cannot reasonably contend that the district court erred by failing to adopt.

[00:13:43] Speaker 01:
What are the issues that are needed?

[00:13:46] Speaker 01:
the argument he's making about the definition within the injunction order?

[00:13:51] Speaker 03:
Correct, Your Honor.

[00:13:52] Speaker 03:
That is what I would say is a subset of one of the three primary positions.

[00:13:58] Speaker 03:
Here are the three primary positions, I believe, that Apollo takes on appeal.

[00:14:03] Speaker 03:
Number one, the injunction does not apply because the 046 patent is not the technology, does not relate to the technology.

[00:14:14] Speaker 03:
And that's where the definition argument comes in.

[00:14:18] Speaker 03:
Two is the injunction doesn't apply because it is fatally ambiguous.

[00:14:24] Speaker 03:
They make this argument in the briefs, and you heard it from Mr. Carrier this morning.

[00:14:28] Speaker 03:
The position is they don't know what the injunction means, what the meets and bounds are, so the court can't enforce it.

[00:14:37] Speaker 03:
And the third point is the assign or estoppel point.

[00:14:41] Speaker 03:
The assign or estoppel defense was based on

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Two points.

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One is that Estoppel applied to Roe, the inventor.

[00:14:49] Speaker 03:
And the second point was Estoppel extended from Roe to Apollo through the doctrine of privity.

[00:14:57] Speaker 03:
In the district court, Apollo argued only the second point, the privity piece, did not address in any way a position that Mr. Roe himself was not bound by a sign or Estoppel.

[00:15:13] Speaker 03:
So on appeal, Apollo switches tax and addresses the first issue.

[00:15:21] Speaker 03:
And our position is that it's not an appropriate appeal issue because Apollo never presented it below, and the district court never had an opportunity to address it.

[00:15:33] Speaker 03:
So this issue with arguing one point below or contesting certain issues below and conceding others

[00:15:43] Speaker 03:
and then switching course on appeal, that problem runs through each of these three primary appeal issues that I mentioned.

[00:15:53] Speaker 03:
On the first one, that the 046, Apollo now argues that the 046 does not relate to the technology and is therefore not, the practice of the 046 is not enjoined.

[00:16:09] Speaker 03:
That is an issue that Apollo did not argue below.

[00:16:13] Speaker 03:
It didn't dispute this issue.

[00:16:15] Speaker 03:
And on the contrary, when nanogas took the position in its motion that the 046 patent practices the technology and therefore is covered by the umbrella of the injunction, Apollo did not contest that point.

[00:16:32] Speaker 03:
On the contrary,

[00:16:34] Speaker 03:
it conceded that there was a relationship that the 046 relates to the technology.

[00:16:40] Speaker 03:
But it argued that nonetheless, the injunction didn't apply to Apollo for other reasons.

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Primarily, they talk about the fact that the injunction issued after Roe, the inventor, assigned the patent to Apollo.

[00:16:57] Speaker 03:
So Apollo's position, in essence, in the district court was,

[00:17:01] Speaker 03:
Judge, we already had the patents before the injunction issued.

[00:17:06] Speaker 03:
The transfer took place before the injunction.

[00:17:09] Speaker 03:
Therefore, we're not covered by the injunction.

[00:17:12] Speaker 03:
That was the argument below.

[00:17:16] Speaker 03:
On the second primary issue that Apollo argues that the injunction is fatally ambiguous, Apollo made no representation whatsoever to that effect before the district court.

[00:17:31] Speaker 03:
It never argued the clarity of the injunction.

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On the contrary, it made statements in its brief that clearly led the court to believe that Roe fully understood the scope of the injunction.

[00:17:45] Speaker 03:
For example, the brief talks about how Roe is honoring the injunction, is complying with the injunction by avoiding work on the 046 patent and on the technology.

[00:18:01] Speaker 03:
There was no question that Apollo and Rowe knew, or at least they gave the impression to everybody, that they knew what the injunction meant, and they were complying with it.

[00:18:11] Speaker 03:
Now on appeal, they take a completely different position and say, how can we know what the injunction means?

[00:18:20] Speaker 03:
Again, the district court could not have erred in failing to adopt an argument that Apollo never presented to it.

[00:18:31] Speaker 03:
And in fact, appeared very clearly to concede the issue.

[00:18:36] Speaker 03:
The other problem with attacking the injunction is that that's a settled issue.

[00:18:42] Speaker 03:
It's too late at this point for Apollo to get into the details of the definitions of the injunction, what it means, how clear it is.

[00:18:52] Speaker 03:
There was an opportunity to litigate that when the arbitration award was being litigated.

[00:18:59] Speaker 03:
And with the district court, which confirmed the arbitration award, there was an opportunity, of course, to appeal that.

[00:19:05] Speaker 03:
The district court decision affirming the arbitration award, there was no appeal.

[00:19:11] Speaker 03:
So that is a subtle matter.

[00:19:14] Speaker 03:
And now is not the time or place for Apollo to argue about the scope of the injunction.

[00:19:22] Speaker 03:
That ship has sailed.

[00:19:26] Speaker 03:
On the assigner estoppel issue, again,

[00:19:29] Speaker 03:
That is an issue that Apollo did not raise below.

[00:19:34] Speaker 03:
There were two components, as I said before.

[00:19:37] Speaker 03:
One is Roe, the inventor, is found by the estoppel.

[00:19:41] Speaker 03:
And the other, Apollo is found by the estoppel through privity.

[00:19:46] Speaker 03:
Apollo only addressed the privity issue below and never contested the fact that Roe himself was found by estoppel on appeal.

[00:19:59] Speaker 03:
the argument is flipped.

[00:20:02] Speaker 03:
And Apollo now ignores the privity piece and focuses on an argument that Roe himself is not stopped for various reasons that were not raised below.

[00:20:14] Speaker 03:
And again, the district court cannot have erred in failing to adopt an argument that Apollo never presented to it.

[00:20:24] Speaker 03:
That cannot be the basis for error.

[00:20:26] Speaker 03:
That cannot be the basis for an appeal.

[00:20:31] Speaker 03:
I can close this up, and I don't need to use all my time unless there are questions.

[00:20:39] Speaker 03:
But it is one thing to argue a point when your argument is weak, and it is one thing to push the limits of reasonable advocacy by taking some liberties with the arguments.

[00:20:56] Speaker 03:
And that is appropriate in appellate context when the arguments have been preserved and the issue is open.

[00:21:01] Speaker 03:
What we have here is a situation where these issues are no longer open.

[00:21:06] Speaker 03:
They were not contested below.

[00:21:07] Speaker 03:
Apollo didn't raise them, contest them, or give the district court any opportunity to address these issues.

[00:21:14] Speaker 03:
And now it's trying to raise these belatedly in the appeal.

[00:21:20] Speaker 03:
All of these arguments, the three core arguments that we've been talking about today, all are foreclosed and are not the proper basis

[00:21:32] Speaker 03:
for an appeal.

[00:21:34] Speaker 03:
Apollo had numerous opportunities to make these arguments, to preserve the record, to tell the judge if all the points that it's making to the appellate court, it had an opportunity to tell the district court and never did.

[00:21:48] Speaker 03:
And that is why in Nanogast's view, not only should this court affirm the district court,

[00:22:00] Speaker 03:
but also should award sanctions against Apollo for raising issues and for basing its appeal entirely on foreclosed issues.

[00:22:15] Speaker 03:
Thank you.

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

[00:22:17] Speaker 00:
Anything else, Mr. Rice?

[00:22:21] Speaker 00:
OK.

[00:22:21] Speaker 00:
Thank you, Mr. Rice.

[00:22:29] Speaker 00:
Mr. Carey.

[00:22:31] Speaker 02:
Thank you, Your Honor.

[00:22:35] Speaker 02:
First of all, again, I would emphasize that Apollo did not concede to any of these issues in its opposition to the motion to dismiss.

[00:22:44] Speaker 02:
Very clearly, it said, sign or stop does not apply.

[00:22:48] Speaker 02:
Very clearly says the claims of the 046 patent do not read on permanent injunction.

[00:22:52] Speaker 02:
These statements are in the opposition.

[00:22:54] Speaker 02:
Now, when

[00:22:56] Speaker 02:
Apollo filed this reply, they changed the strategy.

[00:22:59] Speaker 02:
Now they confuse the meaning of technology, they conflate the two totally different definitions, and they mischaracterize what Apollo's arguments were below.

[00:23:11] Speaker 02:
They say that the only issue here is whether the privity is

[00:23:16] Speaker 02:
applies, and they also say specifically that Apollo admits that the 046 patent uses, quote unquote, uses the technology as defined in a permanent injunction.

[00:23:30] Speaker 02:
Apollo absolutely never said this.

[00:23:33] Speaker 02:
They may have said related, and may have said pertain to, but also very clearly said the claims of the 046 patent do not read on the permanent injunction language.

[00:23:44] Speaker 02:
They very clearly said this in opposition.

[00:23:47] Speaker 02:
Judge, the judge at the district court accepted these mischaracterizations, and he clearly buys into it.

[00:23:52] Speaker 02:
He says that Apollo admits that the 046 pen uses the technology in the permanent injunction.

[00:23:58] Speaker 02:
We did not say this.

[00:23:59] Speaker 02:
Absolutely not.

[00:24:00] Speaker 02:
Apollo never said this.

[00:24:02] Speaker 02:
And recognizing- Doesn't the injunction order say relating to?

[00:24:06] Speaker 04:
I mean, you know, row is permanently enjoined from engaging in the activity relating to, and then, and then it provides... It does say that, but it's a very unclear definition as we've explained, but beyond that... So, but you've acknowledged that the 046 relates to...

[00:24:22] Speaker 02:
Yeah, but just as a patent thing, even though a patent has been granted and presumed valid, that doesn't mean you know what it means.

[00:24:29] Speaker 02:
If the claims have weird terminology, there has to be a mark in here.

[00:24:32] Speaker 02:
There's no such thing here.

[00:24:33] Speaker 02:
And in fact, we did appeal this issue.

[00:24:35] Speaker 02:
We appealed it to the Seventh Circuit.

[00:24:37] Speaker 02:
They affirmed the per arbitration decision, even though we said it doesn't make any sense.

[00:24:41] Speaker 02:
We said this is only going to lead to further litigation.

[00:24:43] Speaker 02:
But they affirmed it, but they didn't define what this means.

[00:24:47] Speaker 01:
Did you make this argument below?

[00:24:49] Speaker 02:
Yes.

[00:24:49] Speaker 02:
Well, not at this point on this particular motion.

[00:24:53] Speaker 02:
Can't understand the claims in the patents because they're weird?

[00:24:57] Speaker 02:
We didn't argue that.

[00:24:59] Speaker 02:
Again, the initial motion was very short.

[00:25:01] Speaker 02:
So we just addressed, we denied, denied, denied the three issues.

[00:25:05] Speaker 01:
What's the answer to my question?

[00:25:07] Speaker 02:
Did we raise the specific, the whole thing about the meeting?

[00:25:10] Speaker 01:
The weird argument you're making now.

[00:25:12] Speaker 02:
No, we didn't make the specific argument, but we did say that the claims in the 046 patent do not read

[00:25:17] Speaker 02:
on the permanent junction language.

[00:25:18] Speaker 02:
And also, I think it's very important that after Paolo recognized from the reply that Dan Ogas filed, that they were changing the strategy.

[00:25:27] Speaker 02:
They're mischaracterizing what the technology means, and they're mischaracterizing what we had argued.

[00:25:32] Speaker 02:
We filed a motion to file a sub-reply saying, they're making new arguments.

[00:25:37] Speaker 02:
They've changed their arguments.

[00:25:38] Speaker 02:
We need to address this, because the court already said there's going to be no oral hearing.

[00:25:41] Speaker 02:
But the judge refused.

[00:25:42] Speaker 02:
He said it's not necessary.

[00:25:44] Speaker 02:
I have no idea why the judge felt that was not necessary.

[00:25:48] Speaker 02:
Clearly, it wasn't necessary.

[00:25:49] Speaker 01:
But he didn't give us the opportunity.

[00:25:51] Speaker 01:
Before you sit down, we do have a motion for sanctions.

[00:25:53] Speaker 01:
Can you address that?

[00:25:55] Speaker 01:
Yeah, I think it's outrageous.

[00:25:57] Speaker 02:
Clearly, we did everything very properly here.

[00:26:00] Speaker 02:
I think this appeal should overturn this judgment.

[00:26:02] Speaker 02:
There's no reason for sanctions here for the exact reasons that were given on appeal here.

[00:26:06] Speaker 02:
We didn't concede anything.

[00:26:07] Speaker 02:
You know, they say we concede all these things.

[00:26:09] Speaker 02:
We didn't.

[00:26:10] Speaker 02:
If you read the express language that we wrote in our opposition, we don't concede any of these things.

[00:26:14] Speaker 02:
That's not true.

[00:26:15] Speaker 02:
It's just not true.

[00:26:18] Speaker 02:
I mean, as a practical matter, I just can't understand why the judge and the district court wouldn't give us an opportunity for a zero reply.

[00:26:25] Speaker 02:
I mean, if he says there's not going to be oral hearing, we say they've added new arguments.

[00:26:29] Speaker 02:
They've changed the arguments.

[00:26:31] Speaker 02:
Why wouldn't he let us have an opportunity?

[00:26:32] Speaker 02:
We raised specifically in our motion for a survey plight that they change the arguments about his time in Stockholm, they change the arguments about the permanent injunction, and they change the arguments about privity, and that we needed to address these.

[00:26:45] Speaker 02:
We specifically said this in our motion for a survey plight.

[00:26:47] Speaker 02:
I'm done.

[00:26:48] Speaker 02:
My time's up.

[00:26:50] Speaker 02:
Thank you, Your Honors.

[00:26:55] Speaker 00:
Thank you.

[00:26:56] Speaker 00:
Thank you both.

[00:26:57] Speaker 00:
The case is taken under submission.