[00:00:05] Speaker 03:
All right, the next case for argument is 2018-1922, 18 International versus Unicloss Technologies.

[00:00:13] Speaker 03:
Mr. Pia, you're the appellant, so please proceed.

[00:00:21] Speaker 04:
Thank you, Your Honors.

[00:00:21] Speaker 04:
May it please the Court?

[00:00:22] Speaker 04:
My name is Joseph Pia, and with respect to this cause, I represent the appellants.

[00:00:28] Speaker 04:
This is an appeal from a denial of Section 285.

[00:00:31] Speaker 04:
Mr. Pia, here's your problem as far as I'm concerned.

[00:00:36] Speaker 05:
I think you have a pretty good argument about the weakness of the lost profits testimony.

[00:00:43] Speaker 05:
It was empty, as far as I'm concerned.

[00:00:50] Speaker 05:
But given the argument in the last argument, and that it's pretty clear that absent an error on the part of your opposing counsel,

[00:01:06] Speaker 05:
The whole thing might have been reversed.

[00:01:09] Speaker 05:
How can you argue for attorney's face?

[00:01:15] Speaker 05:
You see what I'm saying?

[00:01:17] Speaker 04:
Yes.

[00:01:18] Speaker 04:
Under the Supreme Court's decision in octane, there are two prongs that have both been satisfied in this case.

[00:01:24] Speaker 04:
The first is the unreasonably weak litigating position, which is lost profits and reasonable realty.

[00:01:30] Speaker 04:
We've heard some about, and we understand.

[00:01:32] Speaker 04:
That part might be unreasonably weak, I think.

[00:01:37] Speaker 05:
I agree with you, but your problem is they could have won this case.

[00:01:44] Speaker 04:
These only shift to the winner, and they didn't.

[00:01:48] Speaker 02:
I take it the point is, at least based on the argument we just finished, there's a chance that they will actually win the validity point.

[00:02:01] Speaker 02:
There was a chance, respectable chance, that they might have won

[00:02:06] Speaker 02:
the infringement issue at trial had it been presented somewhat differently.

[00:02:13] Speaker 02:
And if the only aspect of their case that might be viewed as extremely weak is some portion of their damages presentation, they might have walked away with an injunction or very small damages, but you think it's an abuse of discretion

[00:02:33] Speaker 02:
for the district court in that circumstance to say this is not an exceptional case?

[00:02:40] Speaker 04:
Abuse of discretion is a difficult standard to overcome, but it's not without limits.

[00:02:45] Speaker 04:
In this case, the court stated that this was a standout situation.

[00:02:49] Speaker 04:
He had never seen anything like this case.

[00:02:52] Speaker 04:
He even went so far as to say he would be fired for the disproportionate litigation style at trial of A-10.

[00:03:00] Speaker 04:
And in his opinion on this issue on J-Mall,

[00:03:03] Speaker 04:
he remained very silent about that issue.

[00:03:06] Speaker 04:
He didn't recognize the argument that we had made.

[00:03:09] Speaker 04:
And that silence.

[00:03:12] Speaker 04:
You mean he didn't formally recognize it?

[00:03:15] Speaker 04:
In his opinion.

[00:03:16] Speaker 04:
His opinion did not recognize that language.

[00:03:19] Speaker 04:
And likewise, his opinion did not discuss the lost profits.

[00:03:24] Speaker 02:
Do you think that, I guess, I'm sitting here thinking, do I occasionally say something at oral argument that

[00:03:32] Speaker 02:
Perhaps I don't put in an opinion because I'm exploring something or maybe I have a second thought about it and it's not really the basis of my decision.

[00:03:43] Speaker 02:
That feels like a rather important freedom that judges may have to be more careful in their writing than in their speaking.

[00:03:55] Speaker 02:
Is this a situation of that, even assuming everything else you're saying is right?

[00:04:02] Speaker 04:
Yes, of course, the court would have great latitude in what it says during trial and especially not during the actual trial where the jury is listening.

[00:04:13] Speaker 04:
But A-10 took it a step further.

[00:04:16] Speaker 04:
When the court asked A-10's counsel why it was bringing such, all you can say about the summary of the court's language is that it was an extraordinary situation.

[00:04:28] Speaker 03:
What is it you think is so extraordinary, the fact that

[00:04:31] Speaker 03:
They had a small potential recovery, and they were spending a lot of money in attorney's fees to litigate.

[00:04:39] Speaker 03:
And so the cost of litigation exceeded by maybe even a lot what they hoped to recover in actual monetary damages.

[00:04:47] Speaker 03:
Is that what you think makes this case so extraordinary?

[00:04:51] Speaker 04:
Yes.

[00:04:51] Speaker 04:
Once the case became what we've identified it as really an anti-competitive or revenge case, this court has found that 285 may be assessed

[00:05:01] Speaker 04:
for a deterrent purpose.

[00:05:03] Speaker 04:
And in this case, where the boundaries are so extreme, we're talking about a few hundred dollars for some of the defendants.

[00:05:10] Speaker 04:
We're talking about millions of dollars.

[00:05:13] Speaker 03:
But doesn't a patentee have a right?

[00:05:14] Speaker 03:
You are the fiercest competitor of the patent holder.

[00:05:19] Speaker 03:
That's what the record reflected, that you all clash and fight for the market.

[00:05:26] Speaker 03:
I've certainly seen Apple Samsung go to war

[00:05:29] Speaker 03:
over smartphones and sustain litigation longer than I could have ever imagined anyone would have the patience for or be willing to pay for.

[00:05:37] Speaker 03:
But because there's such fierce competitors in the market, they have to establish their turf.

[00:05:42] Speaker 03:
You don't think that that's a basis for a patentee.

[00:05:45] Speaker 03:
You didn't ever offer as any form of settlement that you would stop using the technology, did you?

[00:05:51] Speaker 03:
Did you offer to give them an injunction, for example?

[00:05:54] Speaker 04:
A10 had licensed all its competitors in the industry.

[00:05:57] Speaker 03:
But not you.

[00:05:58] Speaker 03:
You are their fiercest competitor.

[00:06:00] Speaker 03:
You two have the largest market share.

[00:06:02] Speaker 03:
You're their fiercest competitor.

[00:06:03] Speaker 03:
I assure you, Apple doesn't license Samsung and vice versa, except as an incident to litigation, ultimately.

[00:06:09] Speaker 03:
That's my understanding.

[00:06:10] Speaker 03:
But fiercest competitors don't necessarily want to license each other because you take each other's market share.

[00:06:15] Speaker 04:
A10 actually had licensed Uniclass twice.

[00:06:18] Speaker 03:
On other technology?

[00:06:19] Speaker 04:
On overlapping patents.

[00:06:21] Speaker 03:
But so are you suggesting that a patentee

[00:06:24] Speaker 03:
doesn't have the right to seek an injunction against its fiercest competitor.

[00:06:28] Speaker 03:
What if there were no damages at stake?

[00:06:30] Speaker 03:
They don't have a right to seek an injunction to prevent their fiercest competitor from adopting their technology?

[00:06:37] Speaker 03:
So no damages are at stake.

[00:06:38] Speaker 03:
Everyone comes into this knowing there's no money at stake.

[00:06:41] Speaker 03:
You haven't even launched a product that you may be advertising you're about to launch that would be infringing.

[00:06:46] Speaker 03:
They don't have a right to spend, say, $5 million in attorney's fees to prevent you from launching that product so that you don't steal a part of their market share.

[00:06:54] Speaker 04:
if it's reasonable and not exceptional.

[00:06:57] Speaker 03:
No, no, that's not what the statute says.

[00:06:59] Speaker 03:
The statute says patentees have a right to exclude.

[00:07:02] Speaker 03:
They don't say they have a right to exclude only if it's going to cost a lot of money.

[00:07:05] Speaker 03:
They have a right to exclude.

[00:07:06] Speaker 04:
Unless a patentee has shown a willingness to license its competitors in the industry.

[00:07:12] Speaker 03:
Are you saying a patentee doesn't have a right to an injunction if it has shown a willingness to license competitors?

[00:07:18] Speaker 04:
It's a mitigating factor in the analysis.

[00:07:21] Speaker 03:
So the right to exclude isn't a right to exclude?

[00:07:24] Speaker 04:
What that prong goes to is irreparable harm.

[00:07:28] Speaker 04:
What prong?

[00:07:29] Speaker 04:
An injunction includes as one of its factors irreparable harm.

[00:07:33] Speaker 04:
And the patent owner's willingness to license its competitors tends to show a lack of irreparable harm and tends to weigh against the granting of an injunction.

[00:07:46] Speaker 03:
But in this case, you're arguing not they shouldn't get an injunction.

[00:07:51] Speaker 03:
But you're saying it was an abuse of discretion

[00:07:54] Speaker 03:
for a judge to think you shouldn't get attorney's fees simply because they pursued a smaller amount of damages and an injunction and spent a lot of money in attorney's fees to seek that, which you think was not worth it.

[00:08:08] Speaker 03:
And you're saying that was an abuse of discretion.

[00:08:10] Speaker 03:
That sort of cost benefit analysis is not something I'm going to do for the first time on appeal for sure.

[00:08:14] Speaker 04:
I would just note a couple of facts that we would ask the court to consider.

[00:08:21] Speaker 04:
One of those is that,

[00:08:23] Speaker 04:
A10 is approximately 100 times the size of Uniclass, as we note in our brief.

[00:08:29] Speaker 04:
This is not fierce competitors such as Apple and Samsung.

[00:08:33] Speaker 04:
This is one company trying to force another company out of business that is much smaller proportionately.

[00:08:41] Speaker 04:
And as you use litigation as a weapon in order to do that, that's clear on the record.

[00:08:47] Speaker 04:
That's why the court finally exclaimed, what is going on here?

[00:08:51] Speaker 04:
And that's when A10 finally admitted

[00:08:53] Speaker 04:
It's anti-competitive behavior.

[00:08:56] Speaker 03:
But you could have offered to stop using the tech.

[00:08:59] Speaker 03:
That would have taken the injunction off the table.

[00:09:01] Speaker 03:
But you didn't ever, as any part of the settlement agreement, it's my understanding, make that offer, that you would stop using the patented technology in addition to paying them the damages that they were rightfully owed.

[00:09:13] Speaker 04:
Part of the settlement discussion actually did include reasonable design arounds.

[00:09:19] Speaker 04:
And A10 had given a recipe for design arounds to one of

[00:09:23] Speaker 04:
the other OEM manufacturers, StarTech, it had included within that license agreement the exact methodology by which the accused infringer could continue to sell products in the similar vein without infringing on the technology as a part of that settlement.

[00:09:38] Speaker 04:
And that certainly would have been the case here as well.

[00:09:40] Speaker 04:
That's not part of the record.

[00:09:41] Speaker 03:
But you didn't offer them a settlement agreement in which you would stop using the patented technology, did you?

[00:09:45] Speaker 04:
In which there would be design arounds, yes, we did.

[00:09:49] Speaker 03:
And here's my last question.

[00:09:51] Speaker 03:
Do you honestly think that- Can I ask a question?

[00:09:53] Speaker 03:
Of course.

[00:09:54] Speaker 05:
I'm sorry.

[00:09:55] Speaker 05:
I wasn't sure I heard you.

[00:09:56] Speaker 05:
Did you say yes, we did offer?

[00:10:00] Speaker 04:
Yes.

[00:10:01] Speaker 04:
Uniclass did offer to cease using the claim technology and instead replace that with design arounds.

[00:10:09] Speaker 04:
What couldn't become an agreement is whether or not those design arounds still infringed.

[00:10:15] Speaker 04:
And that is one of the issues that broke down settlement.

[00:10:18] Speaker 04:
Of course, that's not part of this record, but that is the case.

[00:10:20] Speaker 03:
But I guess what I'm thinking of is sort of bigger picture policy type stuff.

[00:10:24] Speaker 03:
What you're asking us for is to find that it was an abuse of discretion by a district court to refuse to award attorney's fees in a scenario where there was a smaller damage award plus an injunction at stake and the attorney's fees were really costing everyone a lot of money.

[00:10:42] Speaker 03:
And you're saying not just that they should have,

[00:10:46] Speaker 03:
in that case of word you fees, but that it was an abuse of discretion for him not to.

[00:10:50] Speaker 03:
And so I'm just imagining a million sets of factual scenarios where it wouldn't even just not be an abuse of discretion, where I would think it would be flat out proper not to do it.

[00:11:02] Speaker 03:
I don't know all the facts.

[00:11:03] Speaker 03:
All I know is what you presented in the briefs and what was at stake.

[00:11:06] Speaker 03:
But an abuse of discretion is a very high standard.

[00:11:09] Speaker 03:
What about the need for deterrence?

[00:11:10] Speaker 03:
I mean, if you're a patent holder and if people are freely infringing your patents,

[00:11:16] Speaker 03:
I mean, I do know that it is not uncommon for a patent holder to seek to obtain a judgment against one of them to send a deterrent message to the rest of the competitive industry that either take a license, or I'm going to fight you till the bitter end to make sure that you abide by my protective rights.

[00:11:32] Speaker 03:
I mean, couldn't that be a rationale not just, quote, revenge, but a rationale to force compliance?

[00:11:39] Speaker 03:
Because you're not the only player in this market.

[00:11:42] Speaker 03:
As you indicated, there are other players in the market.

[00:11:44] Speaker 03:
And they want to make sure their technology is respected by everybody.

[00:11:47] Speaker 03:
And they want to send a message to the entire competitive universe that if you don't rightfully take a license from us, then we're going to fight till the bitter end to make sure to protect our technology.

[00:11:59] Speaker 03:
I mean, isn't that a legitimate rationale to spend, say, $5 million, even though maybe only $600,000 in damages were at stake?

[00:12:06] Speaker 03:
Because they've got to send a message to the entire industry and to you with regard to other patents.

[00:12:11] Speaker 03:
So next time they come knocking, you're going to take a license more readily.

[00:12:14] Speaker 03:
You're not going to fight because you know they'll not let you off the hook.

[00:12:18] Speaker 03:
I mean, isn't all of that a basis for rightfully pursuing litigation as a patent holder?

[00:12:23] Speaker 04:
Let me start with the beginning of your comment, which is, and your question, is that this is a totality of the factual circumstances analysis.

[00:12:34] Speaker 04:
This is in the weeds.

[00:12:35] Speaker 04:
What happened was something extraordinary taking place in this case.

[00:12:43] Speaker 04:
Yes, in certain circumstances, it would be appropriate for a competitor that owns a patent to begin a series of cases against others.

[00:12:53] Speaker 04:
And it may be worth it in certain circumstances to outspend a competitor.

[00:12:58] Speaker 04:
But in this case, it was exceptional.

[00:13:02] Speaker 04:
And it was extraordinary, as the court pointed out, after this court had lived with the case for two years and actually seen A-10 and other cases against Belkin and seen the litigation behavior.

[00:13:13] Speaker 04:
and construed these claims a time before this case, one time, and watched A-10 in this case attempt to reconstitute all the claims that this court had already construed.

[00:13:23] Speaker 04:
This district court had already construed.

[00:13:25] Speaker 04:
It saw all of this behavior.

[00:13:27] Speaker 04:
And in the final breath, even though, yes, the court has some latitude to say what it will during trial, it said, this is extraordinary.

[00:13:35] Speaker 04:
I've never seen anything like this.

[00:13:38] Speaker 04:
Once those special words under octane are said,

[00:13:42] Speaker 04:
In this type of a contents text, this case does stand out from others under the factual circumstances.

[00:13:49] Speaker 04:
And in this case, where the district court, who we very much like and we very much agree with in many points, but does not discuss the extraordinarily weak damages position on all aspects and does not discuss its language at trial, which it elected not to, we would ask the court to view

[00:14:09] Speaker 04:
those two factors as sufficient to reverse the district court's order.

[00:14:15] Speaker 04:
Are there any more questions?

[00:14:16] Speaker 03:
Yep, let's save the rest of your time for rebuttal and hear from Judson Counsel.

[00:14:20] Speaker 03:
Mr. Nadich, please proceed.

[00:14:28] Speaker 00:
Good morning, Your Honors.

[00:14:29] Speaker 00:
May it please the Court?

[00:14:31] Speaker 00:
I'm Ed Nadich, representing the Appellee Office.

[00:14:33] Speaker 03:
How do you say your name?

[00:14:34] Speaker 00:
Ed Nadich.

[00:14:35] Speaker 03:
Nadich.

[00:14:35] Speaker 03:
Got it.

[00:14:36] Speaker 03:
Thank you.

[00:14:38] Speaker 01:
The trial judge of this case, Judge Guilford, as you just heard, he sat through, he's lived with this case for almost three years, sat through eight days of jury trial and all the pre-trial proceedings and was able to view the parties close up.

[00:14:58] Speaker 01:
Uniclass's counsel just made a note of that.

[00:15:01] Speaker 01:
He had the best opportunity to view the counsel's behavior.

[00:15:06] Speaker 01:
And his ultimate conclusion, when he weighed all the circumstances, in his words, he said 810's behavior was rather unexceptional.

[00:15:15] Speaker 05:
Why do you have a technical expert if he, quote, didn't need to look at source code to make his opinions?

[00:15:22] Speaker 01:
Well, that's actually, I would say, is fairly common.

[00:15:26] Speaker 01:
When you file a complaint, you don't have source code, because it's all confidential, obviously.

[00:15:33] Speaker 01:
And you have to have a reasonable, good, safe basis

[00:15:35] Speaker 01:
Normally, when you have a microprocessor case, you base it on the manuals.

[00:15:41] Speaker 01:
You don't really need the source code or you base it on the standards.

[00:15:43] Speaker 01:
You base it on what evidence you have.

[00:15:45] Speaker 01:
But then, in just about every microprocessor case, you have to review the source code.

[00:15:50] Speaker 01:
Otherwise, the other party will say, the manual is not correct.

[00:15:54] Speaker 01:
That's not how my product really works.

[00:15:56] Speaker 01:
So it's common for an expert might say, I don't know.

[00:15:59] Speaker 05:
But he never did review it, am I correct?

[00:16:01] Speaker 05:
Or did he review it eventually?

[00:16:02] Speaker 01:
He did review it.

[00:16:03] Speaker 01:
And one of the complaints, I think, was that there was multiple rounds of source code review.

[00:16:07] Speaker 05:
OK.

[00:16:09] Speaker 05:
OK.

[00:16:09] Speaker 05:
I read that particular page.

[00:16:12] Speaker 01:
Yeah.

[00:16:14] Speaker 02:
What do you make of the comment during the trial by Judge Guilford about, you know what the comment is, that the resources you're putting into this

[00:16:26] Speaker 02:
I don't know exactly what the word was that he used, but it was something extraordinary.

[00:16:33] Speaker 01:
I think Uniclass is actually really spinning those comments in its brief in a not quite accurate way.

[00:16:43] Speaker 05:
I went back and read what he said.

[00:16:46] Speaker 01:
I'll give you an example.

[00:16:47] Speaker 01:
One snippet they cite a lot is on Appendix page 955.

[00:16:51] Speaker 01:
But if you read some of the context there,

[00:16:55] Speaker 01:
Let me switch to that page.

[00:16:58] Speaker 01:
They cite, on Appendix page 955, it's in the lower right corner on page 12, starting at line 15.

[00:17:10] Speaker 01:
But if you start reading a little bit earlier and see some of the context, it's starting on page 11, the same appendix page, but just higher up on that page, on the transcript page 11, line 13.

[00:17:25] Speaker 01:
He's asking, the court is asking, Uniclass's counsel.

[00:17:29] Speaker 01:
He's asking him about how many questions you need to ask the jury on invalidity in your special verdict form.

[00:17:37] Speaker 01:
So at line 13, he says he's talking to Uniclass's counsel, Mr. Pia.

[00:17:41] Speaker 01:
Let me ask, how many questions do you think we'll be asking this jury?

[00:17:45] Speaker 01:
How many questions total?

[00:17:46] Speaker 01:
Mr. Pia responds.

[00:17:49] Speaker 01:
There right now, with all the various little check boxes, there are probably hundreds.

[00:17:53] Speaker 01:
The court says hundreds of questions and Mr. P currently as it exists, yes.

[00:17:58] Speaker 01:
And the court says on a $650,000 royalty case, do you think that's appropriate?

[00:18:03] Speaker 01:
Do you think that's a fair use of the citizen's time?

[00:18:07] Speaker 01:
Then I'm going to kind of drop down later to the portion that, to unit class sites.

[00:18:13] Speaker 01:
And then he, on line 1512, he starts talking about, I do think, and I keep asking people, I'll ask you about it.

[00:18:22] Speaker 01:
We're asking a lot of these citizens.

[00:18:23] Speaker 01:
We're asking a lot of this courtroom.

[00:18:25] Speaker 01:
And he goes on and he asks, why hasn't this case been settled?

[00:18:29] Speaker 01:
The plaintiff has spent over $400,000.

[00:18:31] Speaker 01:
I'll just stop there for now.

[00:18:32] Speaker 01:
But my point here is, if you look through the transcript, what the judge is doing, he wants the parties to streamline the case so that you don't waste too much of the jury's time.

[00:18:43] Speaker 01:
Don't ask hundreds of questions.

[00:18:45] Speaker 01:
His comments are really directed at both parties.

[00:18:47] Speaker 01:
And I think if you look at,

[00:18:49] Speaker 01:
And there's another example, like if you look at page 1053, it's another thing that they cite unit class sites in his brief.

[00:18:58] Speaker 05:
Well, wait.

[00:18:59] Speaker 05:
Stay where you were.

[00:19:00] Speaker 05:
OK.

[00:19:02] Speaker 05:
Because on the next page, I highlighted this language.

[00:19:10] Speaker 05:
But I just don't understand $400,000 in a $650,000 case.

[00:19:15] Speaker 05:
When I was a lawyer, if I did that, I'd be fired.

[00:19:19] Speaker 01:
Yeah.

[00:19:19] Speaker 05:
And so on.

[00:19:20] Speaker 05:
I mean, he's talking to you.

[00:19:21] Speaker 01:
Yes.

[00:19:23] Speaker 01:
Well, I would submit his comments are, and that comment, I would agree, is directed to me.

[00:19:28] Speaker 01:
But I think his comments more broadly are directed to both parties.

[00:19:32] Speaker 01:
But I would say, number one, we list a lot of reasons in our brief.

[00:19:38] Speaker 01:
There's really much more at stake than just $650,000.

[00:19:41] Speaker 01:
There's a permanent injunction.

[00:19:43] Speaker 01:
That's just past damages.

[00:19:45] Speaker 01:
Even if we don't get a permanent injunction, there's future sales.

[00:19:47] Speaker 05:
Listen.

[00:19:51] Speaker 05:
What bothers me is your damages expert and abysmal job, at least reflected in his testimony.

[00:20:02] Speaker 05:
But I was a trial judge for 16 years.

[00:20:05] Speaker 05:
And your judge had an opportunity to view the circumstances and gets a lot of leeway when it comes up here.

[00:20:18] Speaker 05:
That's where I'm coming.

[00:20:20] Speaker 01:
Well, my one comment on damages is that these parties were direct competitors.

[00:20:25] Speaker 01:
Normally, you can get lost profits if you can prove your market share.

[00:20:29] Speaker 01:
The judge didn't think we did a good job of that.

[00:20:31] Speaker 01:
But I would argue it's not frivolous.

[00:20:33] Speaker 01:
In reasonable royalty, the parties had a license to this patent.

[00:20:37] Speaker 01:
So that's a pretty good indication of what a reasonable royalty rate would be.

[00:20:42] Speaker 01:
So I would push back a little bit.

[00:20:44] Speaker 01:
I think there was some merit.

[00:20:46] Speaker 02:
What ended up being the?

[00:20:48] Speaker 02:
The royalty figure that your expert asked the jury to adopt?

[00:20:54] Speaker 01:
I believe it was seven and a half percent, which was based on the prior license agreement.

[00:20:59] Speaker 02:
And do we have a total dollar figure that that seven and a half percent represents?

[00:21:05] Speaker 01:
It was roughly $650,000 past hand.

[00:21:09] Speaker 02:
That's where the $650,000 comes from?

[00:21:11] Speaker 02:
Yeah.

[00:21:15] Speaker 02:
And then what about the...

[00:21:17] Speaker 02:
the remarks at 1153?

[00:21:30] Speaker 01:
Well, this, I would agree, is directed towards 810.

[00:21:33] Speaker 01:
And the thrust of the judge's argument is, how long is this cross exam?

[00:21:39] Speaker 01:
You're doing a good job on your cross exam of the expert, but how long is it going to go on?

[00:21:45] Speaker 01:
We don't want to use up all the jury's resources

[00:21:48] Speaker 01:
He said, I've just never seen anything like this.

[00:21:50] Speaker 01:
So as soon as you say your cross isn't a good cross and all, I don't know why we're spending so much time on this for a case.

[00:21:56] Speaker 01:
It's again his concern.

[00:21:57] Speaker 01:
Why are we spending so much time with a case that's only limited damages at stake?

[00:22:01] Speaker 01:
But there's another, just to show that his comments are directed towards both sides.

[00:22:06] Speaker 01:
If you look at 1053, I'm sorry, 1052, this is another portion that Uniclass cites in its brief.

[00:22:18] Speaker 01:
And they're citing to page 73, starting at line 16.

[00:22:25] Speaker 01:
And you'll see there's a reference in line 17 to 229 slides.

[00:22:29] Speaker 01:
If you read the context here, what the court is actually doing, he's saying to Uniclass's counsel, why do you need 229 slides with your technical expert for a case with only $650,000?

[00:22:42] Speaker 01:
And I'm not trying to criticize Uniclass's behavior, I'm just saying,

[00:22:47] Speaker 01:
I'm trying to my point is that the court was saying to both sides, let's streamline this case.

[00:22:52] Speaker 05:
But here's my problem with your damages expert.

[00:22:58] Speaker 05:
What's the authority for his product mapping theory?

[00:23:03] Speaker 01:
Well, my understanding of what he was saying is that if you look at the products that- It's a new theory, isn't it?

[00:23:12] Speaker 01:
No, I don't think so.

[00:23:14] Speaker 01:
I don't have a case to cite you.

[00:23:15] Speaker 01:
But I think what he was essentially saying is that for the products, there are certain products that Uniclass should be entitled to lost profits for because those products matched up with Uniclass's products and there was no competitors in that narrow market.

[00:23:31] Speaker 01:
For just those products and then for other products you wouldn't be able to get a lost profits for those.

[00:23:36] Speaker 01:
And that was, I mean normally if you're a direct... He didn't quite say that.

[00:23:40] Speaker 01:
He didn't say it very well.

[00:23:41] Speaker 01:
I mean he could have been more clear.

[00:23:44] Speaker 01:
But my point would be, normally, competitors can get lost profits if they can show their market share.

[00:23:49] Speaker 01:
And they didn't do as good a job as they could have.

[00:23:54] Speaker 01:
But one more comment about these district court's comments.

[00:23:58] Speaker 01:
To the extent there's any question about what was in Judge Guilford's mind, I think the best person, I mean, obviously, Judge Guilford knew what was in his mind the best.

[00:24:10] Speaker 01:
And so you can look at his attorney fee's opinion.

[00:24:13] Speaker 01:
And he found his behavior to be unexceptional.

[00:24:17] Speaker 01:
And unless there's any other questions, I'll sit down.

[00:24:20] Speaker 03:
OK, thank you.

[00:24:21] Speaker 03:
Mr. Pia, you have some rebuttal time.

[00:24:32] Speaker 04:
Thank you.

[00:24:37] Speaker 04:
A-10 brought a case with 72 patent claims.

[00:24:43] Speaker 04:
It accused over 125 products.

[00:24:46] Speaker 04:
It conducted extensive source code review that extended the deadline multiple times.

[00:24:53] Speaker 04:
At one point, it had to change its expert, and that was one of the reasons behind that.

[00:24:58] Speaker 04:
And then during trial, the expert testified, I didn't need to look at source code at all to make my infringement position.

[00:25:06] Speaker 03:
But all of that is expenses that they bore.

[00:25:09] Speaker 04:
That's right.

[00:25:10] Speaker 03:
So how did that cost you any money when their expert looked at hundreds and thousands of pages of source code?

[00:25:16] Speaker 04:
When we go back to this quote that was just read by A10, it's actually the judge's comments to me when I was in the courtroom.

[00:25:26] Speaker 04:
He's asking why we have so many jury instructions on invalidities, because we have so many claims at issue.

[00:25:32] Speaker 04:
And I said, I would love to narrow what I was about to say, this case down, because

[00:25:38] Speaker 04:
This is massive.

[00:25:39] Speaker 04:
So because there's so many claims brought, we had to try to invalidate, UNICLAS had to try to invalidate.

[00:25:45] Speaker 03:
Did you request that the court pursue representative claims strategy?

[00:25:50] Speaker 04:
We worked tirelessly on that.

[00:25:52] Speaker 04:
And right before trial, we were able to cull the claims down to about 34 claims.

[00:25:57] Speaker 03:
No, I'm sorry.

[00:25:58] Speaker 03:
Just to make sure my question was clear, did you ask the court to adopt representative claims?

[00:26:04] Speaker 04:
Yes, we did.

[00:26:04] Speaker 03:
Oh, you did, and he declined?

[00:26:06] Speaker 04:
No, he did, but we had disputes over what those representative products and claims would be.

[00:26:12] Speaker 04:
Actually, not claims products.

[00:26:14] Speaker 04:
I'm not sure that we asked the court to find representative claims.

[00:26:18] Speaker 04:
So that is your question.

[00:26:19] Speaker 04:
I'm not sure about that.

[00:26:21] Speaker 04:
Thank you, Your Honors.

[00:26:22] Speaker 03:
Thank both counsel.

[00:26:24] Speaker 03:
Please take another submission.