[00:00:00] Speaker 03:
The next case is Ingevity Corporation versus the ASF, 2024-1577.

[00:00:09] Speaker 03:
Mr. Earnhardt.

[00:00:12] Speaker 00:
Thank you, and may it please the court.

[00:00:14] Speaker 00:
I would like to begin by jumping straight to issue three of our appeal, and in particular to explain why it was an error of law for the district court to reject Ingevity's good faith patent enforcement defense.

[00:00:28] Speaker 00:
Put simply,

[00:00:30] Speaker 00:
Ingevity cannot be held liable for enforcing what it believed, in good faith, its patent rights to be.

[00:00:37] Speaker 00:
Now, that argument has two parts.

[00:00:39] Speaker 00:
The first question is, what are the relevant patent rights here?

[00:00:43] Speaker 03:
But that depends upon the jury's finding that there was a staple, right?

[00:00:50] Speaker 00:
It does not, Your Honor.

[00:00:51] Speaker 00:
And there's some confusion in the briefing about that.

[00:00:54] Speaker 00:
The parties agreed before the pretrial conference that the issue of patent immunity and it would be reserved for the court.

[00:01:04] Speaker 00:
That issue was never put to the jury.

[00:01:06] Speaker 00:
And the jury verdict about whether the good was, in fact, stable or non-stable cannot answer the question.

[00:01:12] Speaker 00:
of whether longevity in good faith believed the good was not stable.

[00:01:16] Speaker 00:
And I think that's the critical point, because that question is the relevant patent rights here.

[00:01:22] Speaker 01:
No, it seemed to me the arguments were different below than the argument you're making here on appeal.

[00:01:30] Speaker 00:
They're not.

[00:01:31] Speaker 00:
The arguments that I'm making today and in our brief are exactly the same.

[00:01:34] Speaker 00:
That was misleading, frankly, in my colleague's, my friend's brief.

[00:01:38] Speaker 00:
I'll walk the court through it.

[00:01:40] Speaker 04:
Are you relying on a summary judgment motion for preserving the immune defense you're arguing to us right now, or what are you relying on?

[00:01:46] Speaker 00:
several things.

[00:01:48] Speaker 00:
It is the summary judgment motion.

[00:01:49] Speaker 00:
It's also post-trial judgment as a matter of law.

[00:01:53] Speaker 00:
It's also the post-trial findings of fact and conclusions of law on the separate immunity procedure that happened.

[00:01:58] Speaker 00:
It's confusing.

[00:01:59] Speaker 00:
This was a strange case, and I think it's important that I walk you through the context of what happened here.

[00:02:04] Speaker 00:
So before the pre-trial conference, the parties agreed that immunity issues, Rome-Hass immunity, which I would like to explain, and or Pennington,

[00:02:11] Speaker 00:
would be reserved for the court, not the jury.

[00:02:13] Speaker 00:
The parties agree to that.

[00:02:15] Speaker 00:
The district court references that agreement at appendix page 48 and cites back to the district court document 496 at page 15, note 3.

[00:02:25] Speaker 00:
So the immunity issues are reserved for the court.

[00:02:29] Speaker 00:
Ingevity presented that legal issue before trial by moving for summary judgment.

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I urge the court to reach pages 18 and 19

[00:02:36] Speaker 00:
of Ingevity's summary judgment brief where it says exactly what I'm going to say here today, including that, quote, even if the court were to disagree and a fact finder ultimately concluded that they were staple articles, BASF can point to no evidence that Ingevity's conduct pursuant to what Ingevity believed to be its patent rights, even if Ingevity turns out to be mistaken about their scope, was objectively and subjectively baseless.

[00:03:01] Speaker 00:
That's a quote from Ingevity's summary judgment brief.

[00:03:04] Speaker 00:
Ingevity did not then disavow that at summary judgment.

[00:03:08] Speaker 00:
They say that in their papers.

[00:03:09] Speaker 00:
That's simply not true.

[00:03:10] Speaker 00:
If you read the summary judgment argument at lines 10.3 through 10.6, Ingevity argued, under the patent cases, the only thing that is excluded from the good faith immunity would be bad faith litigation, sham litigation, or Walker process, none of which has been fled here.

[00:03:28] Speaker 00:
The district court on summary judgment directly rejected that argument.

[00:03:32] Speaker 00:
A quote from the district court's opinion at appendix 43.

[00:03:36] Speaker 00:
Quote, just becauseingevity is engaging in valid patent enforcement activities does not mean it can violate the antitrust laws.

[00:03:42] Speaker 00:
So that ruling there on summary judgment was a clear error of law under the recent Supreme Court case to Pree versus Younger.

[00:03:49] Speaker 00:
It's directly appealable.

[00:03:51] Speaker 00:
You don't have to move again because that's a clear error of law.

[00:03:54] Speaker 00:
You can directly appeal it.

[00:03:55] Speaker 00:
So that's error number one.

[00:03:56] Speaker 04:
But in terms of a summary judgment, I thought that the district court kind of reserved a final determination.

[00:04:03] Speaker 04:
Is that accurate?

[00:04:05] Speaker 00:
No, because we were moving for summary judgment.

[00:04:07] Speaker 00:
He denied that motion for summary judgment.

[00:04:10] Speaker 00:
the parties had agreed that it would be a bench issue, not a jury issue.

[00:04:15] Speaker 00:
So the effect of not granting the summary judgment was to deny it.

[00:04:19] Speaker 00:
And he denied it on a legal basis that we say is error.

[00:04:21] Speaker 00:
So that's appealable.

[00:04:22] Speaker 00:
But even if it's not, even if that was punted in some way by the district court, the in jeopardy raised this issue again.

[00:04:30] Speaker 00:
After trial and its judgment as a matter of law briefing,

[00:04:35] Speaker 00:
Ingevity again raised this issue, and I point the court to the docket 548.

[00:04:39] Speaker 04:
So you're talking about the 50B.

[00:04:42] Speaker 04:
What about 10 points to where it is in the 50A?

[00:04:45] Speaker 00:
There are two instances.

[00:04:47] Speaker 00:
There's the docket 548, filed on September 13th, 2021, right after trial, where Ingevity said at page six,

[00:04:55] Speaker 00:
Even if there was substantial evidence that fuel, vapor, canister, honeycombs, or staple goods, all of BASF's claims must be dismissed.

[00:05:03] Speaker 00:
There is not evidence that Ingevity engaged in anything other than good faith efforts.

[00:05:07] Speaker 04:
Can you give us J.A.

[00:05:08] Speaker 04:
pages because you're giving us like docket numbers?

[00:05:11] Speaker 00:
I want J.A.

[00:05:11] Speaker 00:
pages because we're on appeal.

[00:05:13] Speaker 00:
That briefing is not in the joint appendix.

[00:05:16] Speaker 00:
It's a brief that Ingevity filed.

[00:05:18] Speaker 04:
That's why there are no JA pages you're giving me right now.

[00:05:21] Speaker 00:
There is a reference to that at appendix page 50 in which the court rejects those arguments.

[00:05:26] Speaker 00:
The court at appendix page 50 says, I conclude that neither nor Pennington nor the patent laws immunize Ingevity's conduct.

[00:05:34] Speaker 00:
That is a response to the filing we made at the docket 548 on September 13th, 2021, and the filing we made at docket 576 on November 4th, 2021.

[00:05:46] Speaker 00:
So, Your Honors, the parties agreed the court would decide this issue, not the jury.

[00:05:52] Speaker 00:
In jeopardy, raise it to the court first in summary judgment, which is a mechanism for doing that.

[00:05:57] Speaker 00:
The court denied that.

[00:05:59] Speaker 00:
Can I just ask you, what is the issue?

[00:06:01] Speaker 01:
The issue, are you saying that if you're in this tying context, any company accused of tying under the law could argue that its acts were lawful because it believed it was merely enforcing its patent rights?

[00:06:15] Speaker 01:
Is that the doctrine you're asking us to accept?

[00:06:20] Speaker 00:
No.

[00:06:21] Speaker 00:
That is not the doctrine.

[00:06:22] Speaker 00:
Not any case involved in tying.

[00:06:23] Speaker 00:
The cases are very clear.

[00:06:26] Speaker 00:
two sections, 217D actually says this, that if the tying is a tie that expands your patent monopoly,

[00:06:35] Speaker 00:
then you can be liable under the antitrust laws.

[00:06:38] Speaker 00:
If it does not, you are immune.

[00:06:40] Speaker 00:
And I would like to point the court.

[00:06:42] Speaker 01:
But isn't that question answered by the other two issues, which we kind of skipped over when we started with issue three?

[00:06:48] Speaker 01:
No.

[00:06:49] Speaker 01:
If there's time, the jury made determinations with respect to the conduct of your client here.

[00:06:56] Speaker 01:
And that included going beyond just enforcing your patent rights, going beyond to other uses.

[00:07:01] Speaker 01:
That's the whole point of this.

[00:07:03] Speaker 00:
And I disagree.

[00:07:04] Speaker 00:
And if I could explain why.

[00:07:06] Speaker 00:
So the relevant patent right at issue here is the one recognized by the Supreme Court in Roman Haas.

[00:07:14] Speaker 00:
The facts of that case are extremely important.

[00:07:16] Speaker 00:
And I recommend that case to your honors.

[00:07:18] Speaker 00:
In that case, Roman Haas had a patent for how to apply the pesticide propanol, how to spray it.

[00:07:27] Speaker 00:
Roman Haas gave an authorization to practice that method patent.

[00:07:32] Speaker 00:
only by an implied license that could be obtained by buying the product, the propanol itself, which was not patented and could not be.

[00:07:41] Speaker 00:
Otherwise, they sued.

[00:07:43] Speaker 00:
Dawson, the plaintiff, argued that was tying, and that allowed Roman Haas to control the propanol product market by virtue of its method patent.

[00:07:55] Speaker 00:
The Supreme Court rejected Dawson's argument.

[00:07:57] Speaker 00:
And I think it's important to understand the two holdings the Supreme Court made.

[00:08:01] Speaker 00:
The first thing the Supreme Court says on page 201 of the opinion is, a patentee may sell a non-stable article himself while enjoying others from marketing that same good without his authorization.

[00:08:13] Speaker 00:
By doing so, he is able to eliminate competitors and thereby to control the market for that product.

[00:08:20] Speaker 00:
The next page of the opinion, on page 202,

[00:08:22] Speaker 00:
the Supreme Court rejects the argument that BASF makes here that somehow conducts from communication in this context.

[00:08:29] Speaker 00:
It says, quote, the linkage of the cell of the product and the license to the patent in a single transaction, which this is the Supreme Court's language, was characterized pejoratively as tying

[00:08:42] Speaker 00:
is permitted by Section 271D.

[00:08:45] Speaker 00:
So that's the first fundamental point.

[00:08:47] Speaker 00:
The conduct of monopolizing the market for a non-stable good, not the military communication, but that conduct is protected by Roman Haas, okay?

[00:08:57] Speaker 00:
Second point, what protection

[00:09:00] Speaker 00:
does that patent right afford to in jeopardy?

[00:09:02] Speaker 00:
Well, the good faith enforcement of your patent rights, even if you turn out to be wrong about what the scope of your patent rights are, is immune for liability.

[00:09:13] Speaker 00:
This court has enforced that principle time and time again.

[00:09:16] Speaker 00:
It's worth another quote.

[00:09:18] Speaker 00:
In the Light Medics case, this court held,

[00:09:21] Speaker 00:
a patentee acting in good faith on its belief as to the nature and scope of its rights is fully permitted to press those rights, even though he may misconceive what those rights are.

[00:09:33] Speaker 00:
Time and again, this court has held that.

[00:09:35] Speaker 00:
The Golan case, the Virginia panel case, the Micon-Gaming case, it's a core principle of patent law.

[00:09:42] Speaker 03:
But didn't the jury decide the question of intent adverse to you?

[00:09:47] Speaker 00:
The jury did not.

[00:09:48] Speaker 00:
The issue of intent, the issue of immunity, was never presented to the jury.

[00:09:52] Speaker 00:
It expressly was reserved for the court.

[00:09:55] Speaker 00:
And the jury's finding that the honeycombs are in fact staple goods cannot answer the question as to whether Ingevity believed in good faith they were non-staple goods.

[00:10:05] Speaker 00:
And in fact, that was never even alleged that they were non-staple goods, that Ingevity did not believe in good faith that they were non-staple goods.

[00:10:13] Speaker 00:
If the jury by itself determining that you were wrong about your patent rights was enough to show that you knew you were wrong about your patent rights, then this protection for being able to enforce your patent rights in good faith would be completely illusory.

[00:10:28] Speaker 00:
Now, no court has ever held that the patent rights given by Roman Haas are somehow second class rights, that don't enjoy the same protection, that you're not allowed to misapprehend that in good faith.

[00:10:42] Speaker 00:
But that it has to be that you are, because a right in which you forfeit it, if you get it wrong in good faith, is no right at all.

[00:10:51] Speaker 00:
And so simply, Your Honors, even if the honeycombs actually are staple goods, and we don't believe that BASF carried its burden to show that they are, but even if you accept that they are staple goods,

[00:11:02] Speaker 00:
Ingevity is immune from treating them like non-stable goods unless that was done in bad faith, which requires a showing of subjective and objective baselessness, which is clearly not true here.

[00:11:12] Speaker 00:
Ingevity believed that it was selling a product, the only purpose of which was to practice its patent.

[00:11:16] Speaker 00:
That issue was never put to the jury.

[00:11:18] Speaker 00:
The judge ruled as a matter of law that the patent immunity defense should not apply, and we respectfully suggest that that should be overturned.

[00:11:27] Speaker 04:
We want to ask you, hopefully, some more questions beyond just what you want to talk about here, though, too.

[00:11:32] Speaker 04:
So do you agree with BASF's contention that the patent invalidity issue is moot if we were to affirm on the jury's time verdict?

[00:11:43] Speaker 00:
If you were to affirm on the tying verdict, yes, the invalidity issue would be moot for this appeal.

[00:11:47] Speaker 00:
Now, I will say that there's a six-year statute of limitations under the patent laws.

[00:11:51] Speaker 00:
Our patent didn't expire until 2022.

[00:11:54] Speaker 00:
So hypothetically, there may be some claim that we haven't brought that we could bring if the invalidity decision was reversed.

[00:12:01] Speaker 00:
So it's not moot in the broader sense, but for this appeal, if it was.

[00:12:05] Speaker 01:
What are the consequences of finding the tying?

[00:12:08] Speaker 01:
Let's assume you lose on the immunity as well as the tying.

[00:12:11] Speaker 01:
What are the consequences of that?

[00:12:12] Speaker 01:
The patent's unenforceable, right?

[00:12:14] Speaker 01:
Correct.

[00:12:14] Speaker 00:
I agree with that.

[00:12:16] Speaker 00:
Yeah.

[00:12:18] Speaker 01:
And what about just another housekeeping to follow up on Doug Cunningham.

[00:12:22] Speaker 01:
What about the tortious interference verdict?

[00:12:24] Speaker 01:
That is mooted out if we would agree with your friend on the first issue, correct?

[00:12:29] Speaker 00:
That is correct.

[00:12:30] Speaker 00:
That would be mooted out.

[00:12:31] Speaker 00:
If I have time, well, I don't know where I am in the time.

[00:12:34] Speaker 00:
If I could say a few words about damages before I... Well, it's your time.

[00:12:39] Speaker 00:
And do I have five minutes left for rebuttal, or am I into my rebuttal time?

[00:12:42] Speaker 03:
You're into your rebuttal time.

[00:12:43] Speaker 03:
That's what the orange light is for.

[00:12:46] Speaker 00:
Okay, I'll save it then.

[00:12:50] Speaker 03:
Thank you.

[00:12:55] Speaker 02:
Good morning.

[00:12:56] Speaker 02:
May it please the court.

[00:12:58] Speaker 02:
Your Honor, Zingevity created what the district court rightly called a classic tying arrangement.

[00:13:03] Speaker 02:
They claimed to have invented not a new kind of carbon honeycomb, but a new method of combining existing absorbance that were well known in the art.

[00:13:12] Speaker 02:
They then told customers, if you want to license this method, the only way to do that is to buy all of your absorbance, including carbon honeycombs, exclusively from us.

[00:13:22] Speaker 02:
The jury, applying instructions on which the parties would lead, found Ingevity liable under the antitrust laws.

[00:13:29] Speaker 02:
In Jebedee's arguments on appeal basically take two forms.

[00:13:32] Speaker 02:
One is attempting to relitigate evidentiary and credibility issues that were resolved by the jury.

[00:13:38] Speaker 02:
That's improper under the substantial evidence standard.

[00:13:41] Speaker 02:
And the second is in the case of the immunity argument that my friend spent all this time on.

[00:13:46] Speaker 02:
This is a new argument that was repeatedly disavowed before the district court.

[00:13:50] Speaker 04:
So can we talk about whether or not it was preserved?

[00:13:54] Speaker 04:
Absolutely.

[00:13:54] Speaker 04:
All of us have been having a conversation with the opposing counsel about whether or not it's preserved.

[00:13:58] Speaker 04:
He pointed us to some places in summary judgment.

[00:14:01] Speaker 04:
He said also in J-Mall.

[00:14:03] Speaker 04:
I want you to kind of walk us through whether or not it really was actually preserved.

[00:14:08] Speaker 02:
Absolutely.

[00:14:08] Speaker 02:
So I think there are three places I'd ask the court to look in the record to see very clearly this was not preserved.

[00:14:15] Speaker 02:
And just to be clear about what was not preserved, what I understand their argument now to be is even if we engaged in time,

[00:14:23] Speaker 02:
And even if what we tied was a staple good, as the jury found, we are still immune if we did that in good faith.

[00:14:30] Speaker 02:
That's their argument on appeal.

[00:14:32] Speaker 02:
So the first place I'd ask the court to look is at the agreed jury instruction.

[00:14:36] Speaker 02:
It's on page 9031 of the joint appendix.

[00:14:38] Speaker 02:
It's instruction 4.1.

[00:14:39] Speaker 04:
Can you see that page number again?

[00:14:42] Speaker 02:
It's 9031.

[00:14:44] Speaker 02:
And my friend said immunity was never presented to the jury.

[00:14:48] Speaker 02:
I frankly don't know how they can say that, given that there was an instruction on this subject.

[00:14:54] Speaker 02:
It's patent enforcement and the exercise of constitutional rights.

[00:14:57] Speaker 02:
It first explains Ingevity has the right to enforce its patents, including through communications to customers.

[00:15:03] Speaker 02:
But then it goes on.

[00:15:05] Speaker 02:
It says, Ingevity has no right to engage in conduct that is tying or exclusive dealing that unlawfully restricts competition beyond the scope of the patent monopoly.

[00:15:14] Speaker 02:
And so it said, patent communications, immune, tying and exclusive dealing, not immune.

[00:15:19] Speaker 01:
And there were no challenges to that jury.

[00:15:24] Speaker 02:
That's right.

[00:15:24] Speaker 02:
This was an agreed jury instruction.

[00:15:26] Speaker 02:
The district court noted that in its post-trial work.

[00:15:29] Speaker 02:
The way my friend tries to get around that is to say, well, we made this argument at summary judgment, and it was definitively rejected.

[00:15:35] Speaker 02:
And that's why we didn't have to object to the jury instruction.

[00:15:39] Speaker 02:
So this is the second place I'd ask you to look.

[00:15:41] Speaker 02:
Pages 42 to 43 of the joint appendix could not be less definitive about this issue.

[00:15:47] Speaker 02:
The court says, quote, I do not think I can decide this issue more than candidly on the present record.

[00:15:53] Speaker 02:
Again, on the next page, I think a definitive North Pennington ruling must await hearing the evidence at trial.

[00:15:59] Speaker 02:
So not definitively rejected at summary judgment.

[00:16:02] Speaker 02:
And why is that?

[00:16:03] Speaker 02:
And this is the third place I'd ask you to look in the record.

[00:16:06] Speaker 02:
Pages 7925 to 7926 of the joint appendix.

[00:16:12] Speaker 02:
This is the argument on summary judgment.

[00:16:15] Speaker 02:
And we had some back and forth about what exactly is Ingevity arguing.

[00:16:18] Speaker 02:
It wasn't clear.

[00:16:19] Speaker 02:
And the district court posed this question directly to Ingevity's counsel.

[00:16:23] Speaker 02:
The court said, I don't think Ingevity is saying time-exclusive dealing are immunized.

[00:16:28] Speaker 02:
But maybe I'm wrong.

[00:16:30] Speaker 02:
turn to counsel, are you saying time-exclusive dealing are immunized?

[00:16:34] Speaker 02:
Their answer, they said, threats of litigation are immunized.

[00:16:38] Speaker 02:
And the reason we're invoking immunity here, I'm paraphrasing.

[00:16:41] Speaker 02:
You can read the answer.

[00:16:41] Speaker 02:
It's a little bit jumbled, but this is what they said.

[00:16:44] Speaker 02:
They said, we're invoking immunity because all we did is threaten litigation, and threats of litigation are immune.

[00:16:50] Speaker 02:
And the court then said, that's a helpful thing to have said.

[00:16:53] Speaker 02:
And that's the reason why I'm almost certainly not going to grant summary judgment, because you're telling me one particular activity, threats of litigation, is immunized.

[00:17:03] Speaker 02:
Other activities that go beyond threats of litigation might not be immunized.

[00:17:07] Speaker 02:
And there is a factual dispute about whether Ingevity's conduct was limited to threats of litigation or whether it went beyond that into actual time.

[00:17:16] Speaker 02:
So that's why the district court denied summary judgment.

[00:17:19] Speaker 02:
That's why the court said there are factual issues.

[00:17:22] Speaker 02:
I can't resolve immunity without factual findings at trial.

[00:17:26] Speaker 02:
And that's why we had this agreed jury instruction that drew exactly the line Ingevity had drawn at that argument, saying threats of litigation are immune, patent communications are immune, but tying is not immune.

[00:17:40] Speaker 02:
So that's how this case was litigated throughout.

[00:17:42] Speaker 01:
And if you're done with the forfeiture kind of question, what say you to leaving aside forfeiture to your friend's reference to Roman Haas and the language of Roman Haas?

[00:17:51] Speaker 02:
Sure.

[00:17:52] Speaker 02:
So I don't think Roman Haas helps me here.

[00:17:55] Speaker 02:
In Roman Haas, the court found propanil was a non-staple good.

[00:17:59] Speaker 02:
It had no substantial non-infringing use.

[00:18:01] Speaker 02:
That's why the conduct in Roman Haas

[00:18:05] Speaker 02:
wasn't even illegal.

[00:18:06] Speaker 02:
There was no issue of immunity there.

[00:18:07] Speaker 02:
There was no issue of good faith.

[00:18:09] Speaker 02:
The court said propanil is a non-staple good.

[00:18:12] Speaker 02:
If the jury had agreed with Ingevity that the honeycombs here are a non-staple good, then we would agree under Roman Haas that conduct is not illegal.

[00:18:21] Speaker 02:
The jury disagreed with that, said it's a staple good.

[00:18:24] Speaker 02:
That means Roman Haas doesn't help them.

[00:18:26] Speaker 02:
What they need is a case that says

[00:18:28] Speaker 02:
Even if you engage in tie-in with a non-stable good, you're immune if you do that in good faith.

[00:18:34] Speaker 02:
There is no case that has ever held that.

[00:18:37] Speaker 01:
Well, is there any case?

[00:18:38] Speaker 01:
I mean, you could help me out by saying, is there any case that's rejected that theory?

[00:18:42] Speaker 02:
So I think there are maybe not quite as clearly in terms of a holding as I might like.

[00:18:50] Speaker 02:
But there are a number of cases, we cited the ISO case and the Atari case in our briefs, that say explicitly, albeit in dicta, that tying and bad-faith patent enforcement are separate bases for antitrust liability.

[00:19:03] Speaker 02:
And in fact, Ingevity conceded that in its post-trial briefing at page 11, 241 of the Joint Appendix.

[00:19:10] Speaker 02:
They said, quote, Ingevity agrees that tying and bad faith patent enforcement are separate bases for liability.

[00:19:18] Speaker 02:
So that's directly contrary to their new immunity argument.

[00:19:21] Speaker 02:
There's also, I think, helpful on this is the Virginia panel decision.

[00:19:25] Speaker 02:
In Virginia panel, there was a variety of anti-competitive conduct alleged, including both threats of litigation and tying.

[00:19:33] Speaker 02:
And the court first analyzed the threats of litigation and said those were immune because they were made in good faith.

[00:19:40] Speaker 02:
The court did not extend that analysis to time.

[00:19:42] Speaker 02:
It then went on and dealt with time separately.

[00:19:45] Speaker 02:
There was no discussion of good faith in the context of time.

[00:19:49] Speaker 02:
All of the cases my friend cites about immunity, every single immunity case involves either litigation, the conduct was bringing suit on the patent, or pre-litigation communications, things like cease and desist letters, notices to potential infringers.

[00:20:04] Speaker 02:
That is the only conduct that this court or any court that I'm aware of has ever held is subject to immunity.

[00:20:10] Speaker 02:
No court has ever held that actual tying of a staple good is subject to immunity.

[00:20:20] Speaker 02:
So if there are no more questions about that issue, I'm happy to answer questions about any other issue.

[00:20:27] Speaker 02:
My friend indicated that he might, on rebuttal, address damages.

[00:20:30] Speaker 02:
So it might behoove me to say a few words about damages.

[00:20:32] Speaker 01:
Or can you also respond to the point that just the housekeeping point that Judge Cunningham raised about whether or not the 102G goes away if you prevail on the other?

[00:20:43] Speaker 02:
That's right.

[00:20:44] Speaker 02:
I think my friend agreed with that, so we're on the same page.

[00:20:47] Speaker 02:
If the court affirms the finding of unlawful tying, then patent validity issue becomes moot because there's no possibility of enforcement given the misuse.

[00:20:58] Speaker 02:
Intorsious interference also becomes moot because there are no additional damages from intorsious interference.

[00:21:05] Speaker 04:
Because the damages are subsumed within the antitrust damages set after it?

[00:21:09] Speaker 02:
That's exactly right, Your Honor.

[00:21:11] Speaker 04:
And if he didn't talk about damages on his opening, he's not going to get to talk about it on his rebuttal.

[00:21:16] Speaker 04:
So give me that.

[00:21:19] Speaker 02:
Fair enough, Your Honor.

[00:21:20] Speaker 02:
In that case, I think I've responded to everything that he did talk about in the opening.

[00:21:24] Speaker 02:
So I'll just ask the Court, if Your Honors have any questions about any of the other issues that were raised in the briefing, I'm happy to address them.

[00:21:33] Speaker 02:
In that case, I'll see you the rest of my time.

[00:21:36] Speaker 03:
Thank you.

[00:21:36] Speaker 03:
All right.

[00:21:38] Speaker 03:
Thank you.

[00:21:38] Speaker 03:
Mr. Aronhot has been with us all the time.

[00:21:40] Speaker 00:
Thank you very much.

[00:21:42] Speaker 00:
There's some sleight of hand going on here.

[00:21:44] Speaker 00:
There are two separate issues.

[00:21:45] Speaker 00:
Noor Pennington, which is one basis for immunity, and Roman Haas, which is another.

[00:21:50] Speaker 00:
So all of the statements about Noor Pennington and statements and communications are not relevant to the rulings about Roman Haas.

[00:21:56] Speaker 01:
Yeah, but he did respond in fairness.

[00:21:58] Speaker 00:
I mean, we asked him the question about Roman Haas.

[00:22:00] Speaker 00:
He responded.

[00:22:01] Speaker 00:
It's responded to in the brief.

[00:22:02] Speaker 00:
I understand, but that's not the argument I'm making today.

[00:22:05] Speaker 00:
My argument I'm making today is about Roman Haas, which is about conduct, and whether if you are wrong about the staple versus non-staple comparison, that right is important enough as all the other rights for you to have immunity.

[00:22:16] Speaker 04:
Is there any case law specifically, though, when there's actual time of a staple good and immunity applies?

[00:22:23] Speaker 04:
Do you have a case on that?

[00:22:26] Speaker 00:
There's no case either way.

[00:22:28] Speaker 00:
Let me just very quickly address the waiver issue.

[00:22:31] Speaker 00:
The jury wasn't instructed on the argument I'm making today.

[00:22:34] Speaker 00:
They were instructed on the substance of staple versus non-staple, not the issue of whether if longevity gets it wrong, does it have to be in bad faith for there to be immunity.

[00:22:44] Speaker 00:
There wasn't an instruction on that.

[00:22:46] Speaker 00:
That's perfectly clear.

[00:22:47] Speaker 00:
I would urge the court to read the sites I said in my opening.

[00:22:51] Speaker 00:
We preserved this every way we could.

[00:22:52] Speaker 00:
There was an agreement.

[00:22:53] Speaker 00:
This would be presented to the court.

[00:22:55] Speaker 00:
We did it before trial.

[00:22:56] Speaker 00:
We did it after trial.

[00:22:57] Speaker 00:
There's no other way we could have presented this argument.

[00:22:59] Speaker 00:
It was preserved.

[00:23:00] Speaker 00:
On this issue, if this verdict is allowed to stand, it would be a massive encroachment on the rights of patent holders and a massive expansion of antitrust law.

[00:23:11] Speaker 00:
I'm not aware of any case in any federal circuit holding that you can be liable under the antitrust laws if you misapprehend

[00:23:19] Speaker 00:
the scope of your patent rights in good faith.

[00:23:22] Speaker 00:
None.

[00:23:22] Speaker 00:
Compare what this court said in Golan to this case.

[00:23:26] Speaker 00:
In Golan, there was an expired patent.

[00:23:29] Speaker 00:
The Supreme Court in Brule said enforcing an expired patent is a tie economically.

[00:23:33] Speaker 00:
That's what you're doing.

[00:23:34] Speaker 00:
And this court in Golan said, OK, it's a tie, but not if you're doing it in good faith.

[00:23:40] Speaker 00:
There, they just got the date of the patent expiration wrong.

[00:23:43] Speaker 00:
And this court said, yes, if you knew that and you intended to enforce your expired patent, you could be liable under the antitrust laws, but not if you do it in good faith.

[00:23:51] Speaker 00:
And that's directly analogous to what's happening here.

[00:23:54] Speaker 00:
If this decision is affirmed on this record, it would leave patentees with an impossible Hobson's choice, either

[00:24:02] Speaker 00:
You forgo the right to monopolize the market for what you truly believe to be non-stable goods under Roman Haas.

[00:24:09] Speaker 00:
You give that away.

[00:24:11] Speaker 00:
Or you risk liability with treble damages if later on someone points to what you believe to be trivial, not actual uses to prove that you were wrong about your non-stable good determination.

[00:24:27] Speaker 00:
That will have a massive chilling effect on the ability and willingness of companies to do what Roman Haas says Congress has said they're entitled to do, which is monopolize the market for a non-stable good.

[00:24:40] Speaker 00:
This will be the first case that I'm aware of, and they don't cite any, ever holding that if you get your Roman Haas rights wrong, you're liable under the antitrust laws.

[00:24:48] Speaker 00:
And that will have a terrible effect on the ability of patent holders to enforce their rights.

[00:24:52] Speaker 00:
Thank you, Your Honor.

[00:24:54] Speaker 03:
Thank you to both counsel and cases.