[00:00:00] Speaker 02:
Our next case, if I pronounce it correctly, is named Amperix Technology versus Zhuhai Cosmic Battery, 2025, 1037, and 1091. Mr. Franklin, I can assure you that even if I didn't pronounce it correctly, we will do our best to decide it correctly.

[00:00:27] Speaker 03:
Thank you, Your Honor.

[00:00:30] Speaker 03:
May it please the Court, Jonathan Franklin for the appellant, Cosmix.

[00:00:35] Speaker 03:
This appeal presents three straightforward legal issues warranting reversal. First, the induced infringement judgment cannot stand because ATL's entire damages case rested on a methodology...

[00:00:50] Speaker 03:
for determining the infringing US revenue that this court in Syntec held was unreliable, speculative, and therefore inadmissible.

[00:01:01] Speaker 00:
Can I interrupt you at that point? Sure. Because there are lots of issues here, and I don't want to lose track of this one. I'm a little confused by what I think I heard you say, because I've understood from the briefs, except for one, maybe one exception, you're asking to get rid of the damages. And in your briefing at one point, it stuck out at me that at one point you say, You reversed the judgment on inducement. There's not an inducement issue before us. It's whether the damages for the inducement were appropriate. And therefore, the consequence of that, if we accepted your arguments, would be that we would undo the damage award, not undo the inducement.

[00:01:40] Speaker 00:
inducement judgment.

[00:01:41] Speaker 03:
Am I right about that? Well, I think the judgment is a judgment for damages. That is the judgment.

[00:01:46] Speaker 00:
Okay, but it's not the finding or the conclusion that there was inducement here. Your challenge goes to the damages in this case.

[00:01:53] Speaker 03:
That is correct, and it's similar to other cases that this court has had. TechSec is a good example. WashWorld is another one. We are, of course, conceding that there's about $1,000, a little more of direct infringement damages, and we're not asking... So that's a very small amount of products that were directly shipped by Cosmix samples to the U.S.

[00:02:17] Speaker 02:
Are you saying that you're not arguing the correctness of the determination that there was inducement of infringement?

[00:02:27] Speaker 03:
Not on an appeal, Your Honor, but obviously we've contested that. Very much, Your Honor. But the problem here was that they have not proven, there's no admissible, reliable, non-speculative evidence to prove damages. So we have cases, TechSec is a good example, where... The damages are just nothing for that particular claim.

[00:02:47] Speaker 02:
Okay, so the damages, the testimony on the methodology is one issue. What are the other two issues?

[00:02:55] Speaker 03:
Sure, Your Honor. The second one also relates to the indirect infringement, and that is whether or not 271B can be applied extraterritorially under the Supreme Court's decision in R.J.R. Nabrisco, which postdates this Court's analysis, which is contrary reasoning in Muriel. And that's the second issue. And the third one relates to our antitrust counterclaim. And we have shown that the district court erred as a matter of law in imposing a clear and convincing burden of proof on our Norr-Pennington claim rather than the normal preponderance of the evidence.

[00:03:31] Speaker 03:
So those are the three issues that we have raised on our appeal.

[00:03:37] Speaker 03:
Going to the first one again, so the...

[00:03:40] Speaker 03:
expert here, ATL's expert, just like the expert in Syntec, improperly assumed that, without any evidence, that the U.S. percentage of every Cosmic customer's worldwide revenues from all sources was the same as the percentage of accused products that they imported into the United States.

[00:04:02] Speaker 03:
That, as a result, the damages calculations, just like the calculations that were deemed impermissible in syntax, include vast amounts of non-accused products and services.

[00:04:14] Speaker 00:
Well, your friend's main argument, principal argument, as I understand it, with respect to syntax, and I think this is what the district court judge bought into, was that there's a difference between lost profits and reasonable royalty. Yes. So how is this hypothetical negotiation, if we're applying it to reasonable royalty, how is it supposed to go? Well, we're supposed to assume infringement and validity and go in willing to make a deal. But here, both parties would understand that no one has any data, any precise data.

[00:04:49] Speaker 00:
So how are we supposed to think about a reasonable royalty rate?

[00:04:52] Speaker 03:
First of all, the hypothetical negotiation in this case and in the court's precedence goes to the rate, the actual royalty rate, the base rate. was determined by calculations, not a reason. There was no testimony here that there was an agreement that the parties would, in fact, do this. This was something that the expert did after he had then determined the rate through the Georgia-Pacific factors. And you can see that, Your Honors, at the trial testimony.

[00:05:24] Speaker 03:
So he did not, in his trial testimony, his testimony about what the products were excuse me, what the reasonable base was came after what he talked about, the negotiation. And so what we have here is the same thing in Syntec. It was a calculation. He said there's no direct evidence of what the importation rate is. So I'm going to use every product. So let's take one customer. Let's take Amazon, for example. Amazon makes more than a trillion dollars.

[00:05:56] Speaker 00:
I think I take your point.

[00:05:59] Speaker 00:
Let's assume hypothetically that we were to agree with you about the damages calculation. Then the question remains whether a remand or reversal is appropriate on that. There are other issues going on here. There are. And so what's your best argument for why it seems like in most cases, more often than not, we remand it and let the district court judge evaluate whether he thinks a new trial for damages would be appropriate or warranted or waived, not that we decide that here.

[00:06:29] Speaker 00:
So why should we decide that here and not remand it to the judge?

[00:06:33] Speaker 03:
For a couple of reasons, Your Honor. First, I would maybe take issue that that's the normal way. Wash World was a recent case. It's a good example.

[00:06:41] Speaker 00:
And I know, and it's hard to follow the precedent because it's all in different circles.

[00:06:44] Speaker 03:
Fair enough. Fair enough, Your Honor. But I do think, let's say ProMega is an excellent case there because this is a situation in ProMega where they just went all in on one damages methodology. And they said to the court, and they said it repeatedly, we don't have anything else. And that's what we have here. We have statements.

[00:07:01] Speaker 04:
For example, procedurally, it was the district court that went first and reached the conclusion that, no, this patent owner plaintiff has waived other alternate damages theories. And then that was appealed to us. And then we gave respect to that ruling on waiver.

[00:07:22] Speaker 03:
Yes, Your Honor, although I have looked at that opinion and the court did not indicate anywhere in the opinion that there was another option that could have been in this case because there was a clear waiver.

[00:07:33] Speaker 04:
I think we said there's no use of discretion in the denial of a motion for a new trial on damages.

[00:07:39] Speaker 03:
Yes, Your Honor, and I think my recollection is Your Honor may have offered that opinion for the court. It was the court's opinion. Yes, I understand. But I do think if you look at the analysis in that case, It was a law of the case ruling about waiver, and I think this court is in equally good position to evaluate waiver. And here we have it. It's very easy because ATL has made it clear in its own brief to this court that it neither could present nor has any evidence, any alternative evidence.

[00:08:17] Speaker 04:
To put a finer point on their position, it's that there was no other readily available data they had access to.

[00:08:26] Speaker 03:
Well, page 26 of their brief to this court, this is footnote 5, there is no such information now. that can be used to determine the number of infringing imports.

[00:08:36] Speaker 04:
Right. So the point is there's nothing like any other data in the publicly available 10-K filings or something like that that they can readily use. They're not saying that there's no other damages theory that they can use. They could create, perhaps, taking evidence or seeking more evidence in different ways than what is readily available.

[00:09:04] Speaker 03:
Discovery has closed here, so there's no further discovery. And they do say that it was, quote, on 21, he used the most precise damages model available. That's a statement in their brief to this court. On 20, he used the best available evidence. On 8, he could not reasonably have obtained more accurate data. So they are going all in, just like, I mean, this is what happened.

[00:09:27] Speaker 00:
Well, understandably, because they want to win on the issue, and that's the only way they get to win. by their theory of the damages is that we were allowed to use this because there was nothing else.

[00:09:38] Speaker 03:
And if they don't win, Your Honor, then I think they have to be held to that choice, that strategic choice that they've made, just as in ProMega. TechSec is another example which followed ProMega.

[00:09:48] Speaker 02:
In that case, they said there was, they courtheld there was no... Counsel, the clock is running and you've just discussed the first issue. Yes. But let's discuss extraterritoriality. Yes, Your Honor. Marielle... Yes, Your Honor.

[00:10:02] Speaker 02:
versus RJR Nabisco. Yes.

[00:10:06] Speaker 02:
RJR Nabisco didn't overrule Marielle, but it certainly laid out a methodology that might support your position. Do you want to address that?

[00:10:22] Speaker 03:
Yes, Your Honor.

[00:10:23] Speaker 03:
With some trepidation that I do, given I know that Your Honor did offer that opinion for the Court as well. But I do think that the analysis in Muriel is kind of the reverse of the analysis that the Supreme Court says was correct in RGR. What the court said in Muriel was because we don't have anything about extraterritorial in the statute, we're going to say it is extraterritorial, and the Supreme Court's analysis is the exact opposite. If there isn't anything in the statute, It is not extraterritorial.

[00:10:54] Speaker 03:
And so that is a directly contrary reasoning, and the Supreme Court has made that clear since Muriel. And therefore, under Troy and other cases we've cited, this panel can in fact hold that the reasoning was undercut.

[00:11:10] Speaker 04:
What is the fact that 271B says nothing about territoriality sticks out like a sore thumb compared to 271A, 271C, I think 271G. And so we have all these other clear constraints on all these closely neighboring, very related infringement provisions. And yet there's no such constraint on 271B. Maybe that means 271B sort of sticks out like a sore thumb and doesn't.

[00:11:41] Speaker 04:
And Congress is telling us that there is no territorial constraint on inducing acts.

[00:11:47] Speaker 03:
But in order for Congress to tell you, under RJR and the analysis it applies, it has to be a clear, affirmative statement of an intent to apply extraterritorially.

[00:11:57] Speaker 04:
That's the key question. Does it really have to be a statement? Does it have to be an express statement?

[00:12:03] Speaker 03:
Well, it has to be clear and affirmative. And what we're talking about here is a negative. We're saying we're going to infer it because it's not there and it might be somewhere else. Now, what we have in F and G, those were actually responses to court decisions holding that extraterritoriality applied, and they were Congress modifying the statute. So what we have here in 271B is if the court holds, as we think it should, that it doesn't apply as a territorial, then Congress can go back and provide a statement about when it could and should.

[00:12:32] Speaker 00:
Okay, the problem I'm having, and maybe my colleagues are way ahead of me, the problem I'm having is that we have a panel decision, and the only way ordinarily we can overturn a panel decision or revisit it is unbopped. We're not en banc here. And the only other way we could do it is if there's an intervening change in law or a new law. And it's clear that my reading of the historical record here is that there was a case called Morrison that said exactly what ARJR said.

[00:13:02] Speaker 00:
That preceded Muriel. Yes. So Miriam was decided in the face of that case. So I'm not clear on how we can say that RJR was intervening change in law that could justify a panel overturning a prior panel decision without going unlawed.

[00:13:20] Speaker 03:
So what they – yes, so Troy, in the case we cited, says that if it undercuts the reasoning, then the panel can, in fact, say that the Supreme Court case supersedes.

[00:13:29] Speaker 00:
Morrison was – But isn't that intervening? Yes. And my point is Morrison preceded Muriel.

[00:13:34] Speaker 03:
So Muriel didn't cite Morrison at all, nor did Muriel – apply any kind of a clear statement rule. And I think the reason is, if you look at Morrison, there was disputes about specific statutes and whether they should or shouldn't be extraterritorial. I don't think it was until RJR that the court established a two-step uniform universal test for all statutes. And that's why, to be charitable, I think, that's why the court didn't have a clear statement rule or apply it in Muriel and, in fact, applied the opposite of a clear statement rule, which is a negative inference.

[00:14:08] Speaker 00:
I see I'm in my rebuttal, but I'd be happy to... Can I ask one more question? Okay, just on another issue, which is the enhancement of damages. Do you agree, even if we were to agree with you on the damages issue, what do we do with the enhancement? There's a million-dollar enhancement. That would be vacated, but... there's still a potential for enhancement with respect to the direct infringement. Do we send it back to the district court to sort out the amount of the enhancement damages?

[00:14:39] Speaker 03:
The first answer is yes, and the second is I don't think there was going to be much of an issue if it's only $1,000, which is what we calculate the direct infringement. I think that's below the threshold for enhancement, but even if it isn't, that would be... The cap would be triple.

[00:14:53] UNKNOWN:
$3,000.

[00:14:53] Speaker 03:
But that's something the district court...

[00:14:56] Speaker 03:
Yeah, that particular issue, you vacate that issue along with the running royalty, which is another one of these post-trial things, we would say yes.

[00:15:05] Speaker 02:
Counsel, we'll give you three minutes of rebuttal time.

[00:15:08] Speaker 03:
Thank you very much. I appreciate that.

[00:15:10] Speaker 02:
Mr. Powell.

[00:15:15] Speaker 01:
Good morning, Your Honors. May it please the Court, Mike Powell for the appellee and cross-appellant proceedings. Hitting on perhaps the last point first, which is the propriety of a remand, there was no waiver in the district court here of any particular damages model. We were not locked into a damages model. We actually had our damages model approved by the trial court, and we presented that to the jury and were successful.

[00:15:42] Speaker 01:
If there were a remand because of the precedent of Syntec finds that the importation data is unreliable, That data is necessary for the particular model we presented, but we have at our option on remand other models that can be used. An example would be a lump sum royalty that is recognized as another alternative in these types of cases.

[00:16:04] Speaker 00:
Did you present this in the red brief? I don't recall seeing... other than seeing we've got enough evidence, you can't open, let's assume you can't reopen discovery, that we would have presented these other damages models or whatever. I didn't see any of that.

[00:16:20] Speaker 01:
I don't think we mentioned lump sum as one of the options, Your Honor. I apologize for that. But we did mention that upon remand, we should have opportunity to present different theories of damages.

[00:16:30] Speaker 00:
But how does that jive with the principal argument you've made here on the merits case on damages? There's no way we had enough data to do this, so we did the best we could. How do we reconcile those two divergent lines in this case?

[00:16:45] Speaker 01:
So I think if we want to take Syntec for what Syntec is, it's a lost profits case. There was a reasonable royalty damages award in that case that was not appealed. So the only issue was whether or not the importation data was reliable enough to prove exactly how many sales occurred in a lost-profit scenario. There was a double-down problem in Syntec where there was an import estimation made on 10K information that was arguably over-inclusive, included products other than the infringing products.

[00:17:22] Speaker 01:
That was then used to multiply by a...

[00:17:28] Speaker 00:
No, I understand. I'm sorry. I don't want to cut you off, but my point, maybe I didn't make myself clear. You have represented in the briefing here, and probably in the whole record, your main justification. ATL has made quite clear that it took its best shot in trying to prove inducement in this case. Page 41 of Blue Brief, other... and found that there is no evidence that ATL could have reasonably obtained more accurate data. So this record is replete with your saying, this is the best we had.

[00:18:00] Speaker 00:
We didn't have any more data. So why is that close enough, not close enough to a waiver of any other way? Essentially, I read this as you said repeatedly, there was no other way we could justify damages in this case. We didn't have enough data. Why isn't that close to a waiver?

[00:18:19] Speaker 01:
Again, I may repeat myself, but it was to emphasize that for the model we chose, we needed to estimate how many of the lithium-ion batteries that were sold to Cosimex's customers ultimately made it to the United States.

[00:18:32] Speaker 00:
But you made a choice of a model. You didn't put in alternatives. We see a lot of cases where there are alternative models for damages, for reward of damages. You picked one, right?

[00:18:42] Speaker 01:
We did, and that model was approved by the court, so we had no reason to introduce a secondary model. Keep in mind, Syntec came after our damage report was locked in. Syntec decision came down a month after.

[00:18:56] Speaker 00:
Before it trapped.

[00:18:57] Speaker 01:
It did come down before trial, but the issue was presented to the court on a Dalbert motion, which we successfully convinced the court Syntec shouldn't apply in the context of a reasonable royalty, which is really, I think, what I'd like to try and explain to the court, how you can distinguish Syntec so that we don't have that problem in this case, if I may.

[00:19:17] Speaker 01:
So on Syntec, because it was a lost profits case, The objective of the evidence is to show how many instances of sales actually took place. That's in order to look at the but-for world. Could the patent owner have satisfied that demand and met that demand with its own products?

[00:19:37] Speaker 01:
That's pretty different from a reasonable royalty where there's a hypothetical negotiation intended to mimic what parties would do in the real world. What I think the question the court needs to address is not is the importation data 100% reliable for this purpose, but is it the type of data that ordinary business people similarly situated to these parties would look to in a negotiation to try and figure out how are we going to monitor the infringing products that make it into the United States?

[00:20:09] Speaker 01:
And under that construct, we believe that there was sufficient evidence presented to the court to show, and Mr. Ratliff presented this evidence both in his expert report and his testimony, that that is the type of evidence that would be used by ordinary business people, and we believe that's the standard to be used in the Georgia Pacific analysis. That's how we think we distinguish Syntec. The thought I didn't finish about Syntec is there is an additional problem not present here where it was use of the importation percentage and also use of an estimated market share in an effort to prove actual instances of infringement.

[00:20:46] Speaker 01:
That's too many ifs and too many whens on the process there for lost profits.

[00:20:51] Speaker 01:
Our importation percentage is a proxy. We took company-wide importation information as a proxy to apply to what were actually the devices that had the batteries, like cell phones, like laptops, like tablets.

[00:21:05] Speaker 02:
Counsel, why don't you address extraterritoriality?

[00:21:09] Speaker 01:
Absolutely, Your Honor.

[00:21:13] Speaker 01:
We believe that the Marial decision remains good law. If you look at the history, it actually goes back to 2006. We actually are 20 years removed from the DSU Medical Corporation case that's cited in the papers that approved a jury instruction recognizing that 271 is differently situated than the other 271 provisions in that it's not tied to the United States. That decision held firm. You have a Supreme Court case, Global Tech, which comes later in 2011.

[00:21:46] Speaker 01:
It also recognizes and accepts that the conduct can be extraterritorial under 271B.

[00:21:55] Speaker 04:
Remind me again, in the Global Tech opinion, nobody raised the argument of whether activities going on in Hong Kong create...

[00:22:06] Speaker 04:
271B liability given that it's done extraterritorially.

[00:22:10] Speaker 01:
It does not appear to have been a disputed issue, at least in the reported decision.

[00:22:15] Speaker 01:
It was clear from the factual record and the briefing supporting the petition to the Supreme Court that the friars in that case were actually made and delivered in China and or Hong Kong. So it was clearly extraterritorial sales, but the issue wasn't actually disputed and discussed. The next step in this cycle is the mayoral decision in 2012. It has not been overruled. And following that, we have power integrations in 2016. That was December 12, 2016, which, again, affirmed liability for induced infringement where the defendant sold the chips overseas in a worldwide distribution model.

[00:22:55] Speaker 01:
We then come to RGR Nabisco, which is June 20 of 2016, so just before, actually, the power integrations case. RGR was not a patent case. It was dealing with a RICO statute.

[00:23:06] Speaker 01:
And it did not change the law. In fact, the language from RGR that's cited by my opponent here is coming from Morrison. Morrison had the very stern language that says when a statute gives no clear indication of an extraterritorial application, it has none. That's a quote from Morrison. That's the same law that RGR reiterates. And it reiterates the same two-step process. You have to look at the statute and the context of the statute to determine, is there a clear indication of extraterritorial application?

[00:23:39] Speaker 01:
If you don't find it in the words of the statute or the context of the statute, then you look, is this a domestic application? We actually think our case meets both. We do think we have extraterritorial approval in 271B. If we didn't, we do think this case presents a domestic application of that statute. We know that RGR Nabisco is not the best marker for patent cases, so we look to Western Gecko. This is a Supreme Court case dated June 22, 2018. This is a patent case, and it looked at Section 284, not part of 271, not limited with language saying the United States.

[00:24:18] Speaker 01:
So they found that it did not evidence extraterritorial reach on its face. They didn't reach that question. What they decided to do instead is go to step two. Let's look at domestic application. They found clearly that Section 284 in that case was a domestic application of the statute because it referenced the underlying infringement. That was what the statute was intended to remedy, to give damages for that.

[00:24:42] Speaker 02:
Isn't it correct here that the party that manufactured the battery component that is patented here, then... passed on that component to the battery manufacturer, which then incorporated the battery into a final product, which was then imported into the United States, so that the putative infringement was quite distant from the importation.

[00:25:17] Speaker 01:
Steps in the supply chain are all controlled by the customer in this case. So you're right that there are many stops on the way to the United States for the battery cells that my client and the defendant in the underlying case made, but all of that activity is controlled by the customer who is the direct infringer here. The customer is the one who's importing smartphones, tablets, and laptops with batteries.

[00:25:41] Speaker 02:
Who's the inducer?

[00:25:42] Speaker 01:
That happens to be, in this case, Cosimex. Now, there's no objection that we proved inducement in the underlying trial. And the inducement comes in the form of U.S.-based certifications that show they make the battery and specifically deliver it to their customers so that they can be imported into the United States. That's not on appeal. That issue has been decided in our favor. So there was evidence to support that. If I might just finish this chronology after Western Gecko, which is similar and should be reviewed closely, we think it supports our case.

[00:26:16] Speaker 01:
There was the MPLAS display decision November 19, 2018, which actually applied Marial. So now you have the Marial logic being applied post-RJR and post-Western Gecko. We think that's a clear indication of its continuing viability.

[00:26:32] Speaker 02:
So the question isn't whether Marial applies to these facts, right?

[00:26:37] Speaker 02:
The question is whether Mariel is still good law.

[00:26:41] Speaker 01:
And we absolutely think it is for the reasons articulated by Judge Prost that this panel can't overturn Mariel on its current posture.

[00:26:50] Speaker 00:
That was a question.

[00:26:53] Speaker 01:
Sorry. We believe that that question is the right answer, which is this panel doesn't have the power to overturn it. There was no intervening change in law. because RGR simply adopts the Morrison standard and rolls it forward.

[00:27:07] Speaker 00:
Can I go back to the first point? Yes. Because I'm still unsettled about the damages and the waiver issue. Do any of the theories, and I'm not sure you listed more than one alternative theory that you might pursue and that you think you haven't waived, but do any of those alternative damage theories exist?

[00:27:26] Speaker 00:
Don't they also depend on knowing how many infringing products made it into the U.S.? And so won't they suffer the same fate as the damages model that we've got before us, assuming that we get rid of it?

[00:27:40] Speaker 01:
Yeah, so we would be looking for alternative ways that the parties in a hypothetical negotiation would try and estimate the trigger for the royalty.

[00:27:50] Speaker 01:
As I mentioned, a lump sum doesn't use an ongoing type royalty analysis. It's going to estimate the value of the patented technology for a one-time payment. So that's one option.

[00:28:01] Speaker 01:
If the importation data that we use is unacceptable, we'll have to find an additional evidentiary basis for the parties to negotiate. how to trigger the royalty, right?

[00:28:13] Speaker 00:
Because... Which would affect what the volume of sales are, how many infringing products made it to the U.S. I'm not sure, right? Do you agree with that? That any kind of damages calculation that might be done otherwise under some other theory would necessarily implicate... No, I don't, because under the Lucent case, which predates...

[00:28:36] Speaker 01:
the Syntec case, in a reasonable royalty context, Lucent held, you don't need to prove each instance of underlying infringement, direct infringement, to prove indirect infringement and get your royalty damages. Obviously, it's a consideration under Georgia Pacific, the extent of use of the invention. That's what we're talking about here.

[00:28:57] Speaker 01:
How much use has there been? And one indicator of that is how many sales of the accused product have been sold. We know that information. It's global. We just need to try and narrow it down to how many come into the United States. Another way to do that...

[00:29:16] Speaker 04:
to the base that you currently have now and if this court rejected this importation rate as a proxy?

[00:29:24] Speaker 01:
I think one option would be to look for overall market share, global and then within the United States of the customers. and perhaps of the lithium ion battery makers themselves. Mr. Ratliff did actually introduce testimony at trial here related to lithium ion batteries, small lithium ion battery manufacturers and their global market share. That data was available and is in the record. We would then try and extrapolate from that how much of that applies to the United States.

[00:29:53] Speaker 00:
We may have just – But we've been there and done that, right? I mean, that was what you were trying to do in this instance, and it's not – In this instance – We conclude it wasn't workable or sufficiently reliable.

[00:30:03] Speaker 01:
In this instance, we took a detour to look at customers' published 10K results, which, by the way, are reliable data, right? These are sworn under oath. They have to be – Assume we get rid of that.

[00:30:13] Speaker 04:
So then what do you do?

[00:30:15] Speaker 01:
Then I think we'd look at the lithium-ion battery market share data that was presented at trial, and we would have to consider what the parties would do to extrapolate from that how that market share applies in the United States. Is it one-for-one, or does it need to be adjusted for some reason because the United States is differently situated than the rest of the world?

[00:30:35] Speaker 02:
Counsel, you have used all your time. So there will be no time for rebuttal if that issue cannot be raised anyway in rebuttal. So thank you for your argument. Thank you. Mr. Franklin has three minutes for rebuttal.

[00:30:56] Speaker 03:
I'll see if I can do that.

[00:30:57] Speaker 02:
On what was argued.

[00:30:58] Speaker 03:
Yes, indeed. To start, on the waiver point, there If you want to go back to the Dober, to pages 18, 0, 1, 4, and 1, 5 of the appendix, they said he used the, quote, only available data source. This was in the trial court. This was after we had raised Syntec. They doubled down on that. He's now saying, my friend over here is now saying he's got other data. That is not what he told this court. He told this court in his brief he had no other data. we have the way the briefs go.

[00:31:28] Speaker 03:
We said there's no data. They said in their response brief, we have no data. We couldn't present any other data. There's nothing we could do. Now he's saying a lump sum royalty. That's an entirely different analysis, but Your Honor is correct. It would, in fact, need to rely on some form of data involving importations, but that was never argued below. It was never argued in the red brief. It's been waived three times over in the trial court, here in this court, and at this argument, too.

[00:31:59] Speaker 03:
So in terms of the Syntec, Syntec applies. Niazi and power integrations were two reasonable royalty cases. Those are the two cases that this court relied on in Syntec to hold that this was an inadmissible methodology. If those cases didn't apply because reasonable royalties don't have anything to do with this case, the court would not have cited them, much less relied on them.

[00:32:21] Speaker 03:
In Syntec, you talked about proxy. The same proxy was used in Syntec, the exact same proxy. In fact, the analysis is, in fact, identical. They used 10K reports for customers and said, what's your overall worldwide revenues? That includes, for in Amazon's cases, trillion dollars in revenue, and those of them having to do with infringing lithium-ion batteries. So the analysis in Syntec that was deemed impermissible is the exact same analysis that was used in this case.

[00:32:51] Speaker 03:
To move to extraterritoriality, I believe... and Your Honors are in a much better position, but I believe that Muriel would have applied the RJR clear statement rule if it had thought it applied. I believe the court would have faithfully applied that if the court had thought that was the analysis. The court did not apply that because it wasn't until RJR that the Supreme Court formalized this two-step process. The other cases that were cited did not raise this issue. They did not raise the issue in NPLAS. NPLAS, in fact, supports us on damages, but did not raise that issue in NPLAS.

[00:33:25] Speaker 03:
In terms of Western Geco, that was an F case, 271F, and it supports us. The court looked at where is the conduct that it regulates, and in that case, it was the act of importation. Here, in this case, it is the inducement, all of which occurred abroad. And finally, the Syngenta case, also that involved G, that strongly supports us, and that involved The focus is where the acts giving rise to the liability. The only acts that give rise to the liability in this case are the acts of inducement, and all of those actions occurred abroad in China.

[00:33:59] Speaker 03:
For that reason, we ask that the court vacate or reverse the damages award and not give them another bite at the apple. Thank you.

[00:34:10] Speaker 02:
Thank you to both counsel. The case is submitted.