[00:00:00] Speaker 03:
This is where it says Samsung Electronics.

[00:00:03] Speaker 03:
Your Honor, I believe I have three minutes remaining.

[00:00:13] Speaker 03:
No, you were out of time.

[00:00:16] Speaker 03:
You may have saved three minutes, but you used it up.

[00:00:20] Speaker 03:
Thank you, Your Honor.

[00:00:35] Speaker 02:
May it please the court.

[00:00:36] Speaker 02:
Your honor, this is the appeal of the district court's fee award.

[00:00:41] Speaker 02:
And the fee award is going to have to be vacated for both, I think, a technical reason, because if the court finds for Samsung on any of the issues, either on the 884 or affirming the IPR with respect to the 029, the court will have to vacate the final judgment and remand

[00:01:03] Speaker 02:
And in the absence of a final judgment, there can't be a determination of prevailing party, which is essential to an award of fee.

[00:01:10] Speaker 02:
So as a technical matter, if Samsung prevails on any of the issues and vacates the final judgment, there will have to be a remand also of the fee award.

[00:01:21] Speaker 02:
But it's more than simply a technical issue.

[00:01:25] Speaker 02:
The Medichem case is the one that I'm relying on for the fact that there can't be a prevailing party without final resolution.

[00:01:31] Speaker 02:
But there's also a substantive reason for this.

[00:01:34] Speaker 02:
And that is because, necessarily, the award of fees relies on the court's assessment of the totality of the circumstances.

[00:01:43] Speaker 02:
That was true in this case.

[00:01:44] Speaker 02:
The court cited that at A-19.

[00:01:47] Speaker 02:
It's also reflected in this court's precedent, such as the Frazier case.

[00:01:53] Speaker 02:
Any of the underpinnings of a fee determination have been vacated.

[00:01:58] Speaker 02:
It's appropriate to vacate the fee award as well and to send it back to allow the district court in the first instance to reassess the totality of the circumstances.

[00:02:07] Speaker 00:
Is that the same with respect to the exceptionality finding where the exceptionality finding was based on very narrow reference to litigation conduct?

[00:02:17] Speaker 02:
Well, I think the exceptionality finding was based on

[00:02:21] Speaker 02:
four different factors.

[00:02:23] Speaker 02:
Some of them certainly are influenced by the strength of Samsung's case.

[00:02:29] Speaker 02:
And for example, if we were to win on the 029 because of the IPR, then our continuing infringement, so to speak, which is one of the factors that the court relied on, should, I think, weigh very differently.

[00:02:45] Speaker 02:
In the Octane Fitness case, the Supreme Court obviously reversed the notion that

[00:02:51] Speaker 02:
objective reasonableness was a single identifiable independent factor, but it did reiterate that the substantive strength of the party's litigating position was an important factor in determining whether a case is exceptional.

[00:03:09] Speaker 00:
But the judge didn't really rely on that, did he?

[00:03:13] Speaker 00:
Did you suddenly produce documents timely just because one of the patents was invalid?

[00:03:18] Speaker 02:
No, Your Honor, but the fact that the court didn't recognize that is, we think, actually an independent ground for vacating it and sending it back and saying you need to at least address that significant issue.

[00:03:32] Speaker 02:
We don't think that it's an independent one of two prongs that has to be met, but we think the court does have to address it.

[00:03:40] Speaker 02:
And there was no mention of the fact that we had prevailed on the two

[00:03:44] Speaker 02:
9-0 patent.

[00:03:45] Speaker 00:
Because the court said, I am relying on their litigation misconduct.

[00:03:51] Speaker 00:
And it was so extreme that that factor alone is sufficient to justify an exceptionality.

[00:03:58] Speaker 02:
Your Honor, the court very explicitly said there was no single factor that was the basis of its war.

[00:04:06] Speaker 02:
And so there were these four different factors.

[00:04:08] Speaker 02:
Again, the court didn't really address the substantive strength of our argument, which we think was

[00:04:14] Speaker 02:
itself an independent violation.

[00:04:16] Speaker 01:
But the first factor, if I'm remembering the correct opinion that he talks about, was copying.

[00:04:23] Speaker 01:
That is the set of interactions, please come to Korea for a few weeks so we can download everything in your mind.

[00:04:33] Speaker 02:
Yes, that was one of, but the court was very explicit that no single factor was the basis.

[00:04:39] Speaker 02:
So if there would be a basis for him to reassess any of the four factors, that would be a sufficient basis to vacate the exceptionality finding and the fee award and send it back.

[00:04:50] Speaker 01:
As I recall, the judge recited, it was in four groups, factors that pointed toward exceptionality.

[00:04:59] Speaker 01:
which are substantially, if not completely independent of how strong your ultimate defense in the litigation was.

[00:05:11] Speaker 01:
And those wouldn't change if say one of the patents dropped out.

[00:05:16] Speaker 01:
It might well change on no prevailing party, but that's not really what we're talking about at this point.

[00:05:21] Speaker 02:
Well, your honor, I disagree because I think at least in part,

[00:05:26] Speaker 02:
The fourth factor with respect to Samsung's continued infringement, if the 029 patent is not a valid patent and that part is going to be reversed, or there's a question as to whether the 884 is a valid patent, then our continued infringement of a patent that's not invalid would be a factor that the court would have to reconsider.

[00:05:52] Speaker 02:
That was factor four.

[00:05:53] Speaker 02:
So I think that you can't take and isolate the exceptionality finding from what might have to happen on remand.

[00:06:02] Speaker 02:
And that's really my basic point, which is that the fee award both the exceptionality finding and certainly the amount, because the court did not apportion at all, both of those analyses would be different analyses after a new trial with whatever

[00:06:22] Speaker 02:
the court does in sending it back.

[00:06:25] Speaker 02:
And the court should have to make those determinations again at that time.

[00:06:30] Speaker 02:
I do think that we've pointed out some serious flaws in the court's assessment of the facts underlying its other factors.

[00:06:40] Speaker 02:
For example, and I know that this goes to the willfulness finding, which is factor one, also part of the merits appeal.

[00:06:47] Speaker 02:
In the sanction that the court imposed that gave rise to the willfulness fine, because the sanction was we could not contest willfulness, part of it was to instruct the jury that Mr. Bond... Can I just be clear?

[00:07:01] Speaker 01:
Was the sanction that you couldn't contest willfulness or you couldn't put on evidence of non-willfulness?

[00:07:07] Speaker 02:
We could not put on evidence of a defense.

[00:07:10] Speaker 01:
I'm not sure it makes a difference, but I thought it was slightly more limited than

[00:07:14] Speaker 01:
You have to confess it, basically.

[00:07:16] Speaker 02:
That's right.

[00:07:16] Speaker 02:
It was we could not contest it by putting on a defense against it, right?

[00:07:22] Speaker 02:
And as part of it, there was also the jury instruction.

[00:07:25] Speaker 02:
And the jury instruction was that Mr. Lee and Mr. Bong had given false testimony about Samsung's assessment of the imperial patents.

[00:07:35] Speaker 02:
None of the 10 emails that were disclosed during trial went to Samsung's assessment of the imperial patents at all.

[00:07:43] Speaker 02:
It was further

[00:07:44] Speaker 02:
evidence that Mr. Taylor had conversations with Imperium who was trying to see if Samsung was interested.

[00:07:52] Speaker 02:
And I understand that those should have been produced.

[00:07:55] Speaker 02:
That's not a question.

[00:07:56] Speaker 02:
But when the judge said that they gave false testimony about their assessment of Imperium's patents, that was based on the emails that were disclosed before there was even deposition of those witnesses during discovery.

[00:08:11] Speaker 02:
So the willfulness binding itself

[00:08:13] Speaker 01:
is based on factual premises that are wrong.

[00:08:33] Speaker 02:
But is that the right standard?

[00:08:34] Speaker 02:
The factual findings would be reviewed for clearer.

[00:08:37] Speaker 00:
But in the court's exceptionality finding, the court made a specific finding that, in fact, there was not any kind of adequate pre-suit investigation with respect to the validity of the patents when Sansom chose to keep infringing and copy.

[00:08:53] Speaker 02:
Well, Your Honor, this was based in part on the jury's finding of willfulness.

[00:08:58] Speaker 02:
He basically had precluded this defense

[00:09:03] Speaker 00:
Well, there's no problem with precluding a defense.

[00:09:05] Speaker 00:
I mean, you try to say that this is the same as entering judgment, but it's not.

[00:09:09] Speaker 00:
There's case after case after case from all kinds of different circuits where they say,

[00:09:14] Speaker 00:
that a narrower thing would be to say you can't put on a defense, or you can't assert a particular claim, or put on evidence to support a particular claim.

[00:09:23] Speaker 00:
But it's very different than entering judgment, which is the primary case you rely on.

[00:09:27] Speaker 02:
I agree, although there are cases that say that striking a defense can be akin to a dismissal.

[00:09:32] Speaker 02:
This instruction, which precluded us from making a defense against willfulness, amounted to a $20 million sanction.

[00:09:42] Speaker 02:
$20 million because you take

[00:09:44] Speaker 02:
the six plus million, and then you double that as part of the trebling.

[00:09:48] Speaker 02:
So that's another 13 plus million.

[00:09:50] Speaker 02:
And then you add the seven plus million of fees that were premised in large part on the finding of willfulness.

[00:09:56] Speaker 02:
That's a $20 million sanction.

[00:09:59] Speaker 02:
It's premised in large part upon faulty fact-finding.

[00:10:02] Speaker 02:
For example, again, the district court faulted Mr. Bond because he said he had those emails in a file folder labeled Imperium on his system.

[00:10:12] Speaker 02:
It's not true.

[00:10:13] Speaker 02:
It's simply not true.

[00:10:14] Speaker 02:
It's demonstrably not true.

[00:10:16] Speaker 00:
They were kept on date.

[00:10:18] Speaker 00:
From an objective perspective, it shouldn't just be the cost of doing business for you to copy someone else's patent and then hope that later down the road that you can go through an IPR or something and find it to be invalid when you've never done that assessment.

[00:10:34] Speaker 00:
And so maybe a $20 million sanction is exactly what businesses like this need.

[00:10:40] Speaker 02:
Well, Your Honor, I think that

[00:10:42] Speaker 02:
The test under Fifth Circuit law, as if it is a severe sanction, there has to be a finding of bad faith.

[00:10:48] Speaker 02:
There was no finding of bad faith.

[00:10:50] Speaker 03:
The sanction was imposed for copying.

[00:10:51] Speaker 03:
The sanction was imposed as a result of the failure to disclose the documents.

[00:10:57] Speaker 02:
That's right.

[00:10:58] Speaker 02:
And that sanction, which amounted to a $20 million sanction, was premised on faulty fact-finding.

[00:11:06] Speaker 02:
He didn't disclose documents that were kept in a different

[00:11:10] Speaker 02:
date range than what he remembered it to be.

[00:11:13] Speaker 02:
And there was no finding of bad faith because the judge said at the time, whether it was misremembering or something else, he did not find bad faith.

[00:11:21] Speaker 02:
But the main point that I, and I know that I'm already into my rebuttal time, the main point here is that the fee award is going to have to be vacated because if the court agrees with us on any of the issues and remains for anything because of the absence of a final judgment, and we think that the

[00:11:39] Speaker 02:
court's determination of exceptionality and its refusal to allocate the fees, et cetera, would all have to be redone on the basis of what is the world when the final judgment is rendered?

[00:11:52] Speaker 02:
How many of the patents have been knocked out by that time?

[00:11:55] Speaker 02:
Have they won and won a judgment on only one?

[00:11:57] Speaker 02:
Certainly, if they've won on none, there's no prevailing party.

[00:12:00] Speaker 02:
What if they've only won on one?

[00:12:02] Speaker 02:
We've won on two.

[00:12:03] Speaker 00:
That is not supposed to be the driving factor anymore after octane thickness.

[00:12:08] Speaker 00:
The Supreme Court made that very, very, very clear, that while we made it the driving factor for years and years, the Supreme Court said no.

[00:12:18] Speaker 02:
I disagree, Your Honor.

[00:12:19] Speaker 00:
We have said you're allowed to consider it, but we have never said since Octane that it has to be the driving factor.

[00:12:25] Speaker 02:
Well, at the very least, they have to be a prevailing party.

[00:12:28] Speaker 02:
So that means they have to have won.

[00:12:30] Speaker 02:
And if they've only won on one and we have won on two, that would require a reassessment of whether they were a prevailing party.

[00:12:36] Speaker 02:
It would certainly require a reassessment about whether there should be apportionment.

[00:12:40] Speaker 02:
And there would also, we think, have to be a reassessment of things such as the weight of factor four on which the court based its exceptionality finding.

[00:12:50] Speaker 02:
I'll reserve the remainder of my time.

[00:12:57] Speaker 03:
Thank you.

[00:13:15] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:13:18] Speaker 04:
This Court's pre- and post-octane fitness jurisprudence establishes that a party's willful infringement alone, or litigation misconduct alone, are sufficient to support an exceptionality finding on Section 285.

[00:13:33] Speaker 04:
Here, of course, the District Court found that Samsung committed... You agree that you'd have to be a prevailing party, right?

[00:13:40] Speaker 03:
And if we were to hold either the

[00:13:45] Speaker 03:
029 was invalid, or the 884 was invalid, or there had to be a new trial as to if that would require reassessment of that question.

[00:13:55] Speaker 04:
Depending on if there was a remand, depending on what was remanded or overturned, then there may need to be additional consideration of a bailing party below, Your Honor.

[00:14:05] Speaker 04:
Indeed.

[00:14:06] Speaker 04:
Indeed.

[00:14:08] Speaker 00:
Well, when you say depending, but I think Judge Steig's point is, so either one,

[00:14:14] Speaker 04:
either the o two nine or the eight eight four if we send it back or set it aside either one would require a false reassessment of prevailing party right well i don't know if it will require a full assessment your honor because certainly this court sure is prudence both pre and post octane establishes that litigation misconduct is sufficient to establish essentially the rest of the litigation misconduct has nothing to do with prevailing party the award here was under two eighty five

[00:14:43] Speaker 03:
and 285 requires a finding of a prevailing party, a predicate finding, right?

[00:14:49] Speaker 03:
Yes, your honor.

[00:14:50] Speaker 03:
And the court undertook that analysis.

[00:14:51] Speaker 03:
So if there's a change in the outcome as to an aspect of the case, the prevailing party issue has to be reevaluated, right?

[00:15:00] Speaker 04:
Your honor, I don't agree that any change in the outcome of the case would require that.

[00:15:05] Speaker 04:
Certainly you can envision a scenario where, if Imperium is left with zero damages,

[00:15:11] Speaker 04:
Under the under the remand or the reversal that were to occur then there would need to be a reassessment of prevailing party however if the 290 patent for example or the 029 patent for example if those invalidity decisions are affirmed at the patent office and Imperium wasn't able to recover damages for the 029 patent Imperium would still be the prevailing party here

[00:15:37] Speaker 03:
Do you think that, but why don't we, wouldn't we have to send that back to the district court to evaluate the question again?

[00:15:43] Speaker 04:
Well, respectfully, Your Honor, the district court evaluated that question in its prevailing party analysis below at pages A-18 and A-19 of the appendix.

[00:15:55] Speaker 04:
The district court didn't deal with hypotheticals about a different outcome.

[00:15:59] Speaker 04:
The district court did assess Samsung's argument in the papers below that Samsung

[00:16:06] Speaker 04:
was the prevailing party because, at the time, it had succeeded at the patent office on two of the patents.

[00:16:13] Speaker 00:
But the district court said that's because we hadn't ruled on it yet, right?

[00:16:19] Speaker 00:
But it's non-final.

[00:16:20] Speaker 00:
It's a non-final determination.

[00:16:22] Speaker 00:
So I've factored in.

[00:16:24] Speaker 00:
But because it's non-final, it doesn't carry great weight.

[00:16:30] Speaker 04:
That was certainly part of the district court's reasoning.

[00:16:32] Speaker 04:
But again, under the prevailing party test, which is a material difference in the relationship between the parties, if we're left with the 884 patent only, for example, Imperium would still be entitled to 70% of the damages in this case.

[00:16:47] Speaker 04:
A $4.8 million judgment, trebled by the court's willfulness finding.

[00:16:51] Speaker 01:
But isn't that something you'd have to argue to the district court?

[00:16:56] Speaker 01:
I don't think the district court said

[00:16:59] Speaker 01:
independently of what happens to the 029, Imperium is a prevailing party here.

[00:17:06] Speaker 04:
I agree with that, Your Honor.

[00:17:07] Speaker 04:
Certainly the district court assessed it.

[00:17:09] Speaker 04:
It indicated it was aware of the IPR proceedings that had gone on, and it was aware of the jury's verdict on indolentity.

[00:17:15] Speaker 04:
Certainly.

[00:17:18] Speaker 04:
Certainly.

[00:17:19] Speaker 04:
The court was well within its discretion here to award fees under either the willfulness judgment or

[00:17:28] Speaker 04:
based on Samsung's litigation misconduct.

[00:17:32] Speaker 04:
And Your Honor, Samsung's arguments here don't show any clear error on the part of the district court.

[00:17:38] Speaker 04:
The law doesn't require the district court to consider the strength or reasonableness of every Samsung defense.

[00:17:45] Speaker 04:
Of course, Octane Fitness overturned the rigid Brooks Furniture Test.

[00:17:49] Speaker 04:
Samsung really here is seeking to reimpose the prong of that test that would require the district court to analyze the objective baselessness

[00:17:58] Speaker 04:
of a party's litigating position?

[00:17:59] Speaker 01:
Have we had a case post-Octane in which issue of whether a district court has to at least address the strength of the losing party's case was either that we either said yes the district court does have to and it's reversible error not to or where we said

[00:18:28] Speaker 01:
There can be some cases in which the district court doesn't even have to advert to that.

[00:18:35] Speaker 04:
I'm aware of no case.

[00:18:36] Speaker 01:
Now that it's only a consideration and not a requirement.

[00:18:39] Speaker 04:
Indeed, Your Honor, and certainly the University of Utah case, among others, highlights that.

[00:18:45] Speaker 03:
Yeah, but it's a Supreme Court case in the copyright area with the comparable provision of the copyright law.

[00:18:51] Speaker 03:
My recollection is the Supreme Court said, yes, you do have to consider substantive strikes.

[00:18:56] Speaker 03:
in that context, in that comparable provision.

[00:18:59] Speaker 03:
Are you familiar with that case?

[00:19:01] Speaker 04:
I am familiar with it, Your Honor.

[00:19:02] Speaker 04:
I believe you're referring to footnote 6 in the Octane Fitness case, and they're the... No, it's not.

[00:19:06] Speaker 03:
No, no.

[00:19:08] Speaker 03:
There's a case involving the corresponding copyright provision to 285, and I can't remember what the section number is, but there's a Supreme Court case, if I recall correctly, that says in that context, under that statute, you have to consider substantive strength in a worry attorney's fee.

[00:19:27] Speaker 04:
uh... prepared by justice keegan yes your honor i i believe we're we're talking about the same thing and i'm talking about the footnote octane fitness that cites to that case and the name of this is escaping me right now uh... and that's what it says those are potential considerations certainly discourse jurisprudence post octane including the university of utah case that we say briefing says sure consideration of objective reasonableness is something that a court can consider

[00:19:54] Speaker 04:
But I'm aware of no case from this court post-Octane that requires a district court to say that.

[00:19:58] Speaker 03:
Well, why would it be different in the copyright and patent context?

[00:20:02] Speaker 04:
Well, my understanding of, again, that footnote from Octane, Your Honor, is that that's permissive, was what the Supreme Court is saying.

[00:20:09] Speaker 03:
And it's not permissive in the copyright context, right?

[00:20:14] Speaker 04:
I'm not sure in the copyright context, Your Honor.

[00:20:15] Speaker 04:
Certainly the cases from this court post-Octane identify that it may be a constitution.

[00:20:21] Speaker 04:
And the lower court.

[00:20:22] Speaker 00:
But we have said that.

[00:20:24] Speaker 00:
litigation-inspired defenses are not relevant to willful infringement, that in other words, the willfulness under the Supreme Court's case law, under octane, has to be assessed pre-litigation.

[00:20:39] Speaker 00:
Now, while litigation-inspired defenses might be relevant to the overall assessment of fees or even the size of the fee award, it doesn't have anything to do with whether it's willful, right?

[00:20:50] Speaker 00:
We said that in WBIP.

[00:20:52] Speaker 04:
Absolutely, Your Honor.

[00:20:53] Speaker 04:
And here, I know counsel for Samsung alluded to some potential defense that Samsung was going to put on here, but there was no evidence in the record that Samsung performed any type of investigation before this case was filed that would show that Samsung didn't infringe Imperium's patents or that those patents were invalid.

[00:21:13] Speaker 00:
Did those bad emails and the copying

[00:21:16] Speaker 00:
only relate to one of the patents, or did it relate to all of the patents?

[00:21:21] Speaker 04:
They related to all the patents, Your Honor.

[00:21:23] Speaker 04:
Our willfulness case related to all three patents.

[00:21:27] Speaker 04:
And with respect to those emails, Samsung has shown no clear error in the court's analysis of the evidence here.

[00:21:35] Speaker 04:
The court understood the context of why those emails were so critical to our case.

[00:21:40] Speaker 04:
I asked Mr. Bang, who is a United States-trained lawyer.

[00:21:44] Speaker 04:
He's a member of the bar.

[00:21:46] Speaker 04:
of Virginia and New Jersey, I asked him at his deposition, did you respond to Mr. Kaler's July 12, 2012 email?

[00:21:55] Speaker 04:
He said, I don't remember.

[00:21:57] Speaker 04:
He produced an email mid-trial that showed he did respond to that email.

[00:22:01] Speaker 04:
And then he asked Mr. Kaler questions about our path.

[00:22:03] Speaker 04:
Why does that show he's lying?

[00:22:05] Speaker 04:
Well, at the very least, Your Honor, it shows that we were prevented from developing a record that would have assisted our case that we showed the jury.

[00:22:13] Speaker 04:
Samsung's counsel stood up an opening argument and then through his questioning of our corporate representative told the jury that Samsung's interest in our patents ended in 2011.

[00:22:22] Speaker 04:
The emails produced during the middle of the night on the fourth day of trial showed that that was absolutely not the case.

[00:22:28] Speaker 04:
That's just one element the judge was on at Saul here.

[00:22:31] Speaker 01:
Do you know, does the record say, Mr. Kaler, was he the independent broker?

[00:22:38] Speaker 04:
Yes, he was the anonymous broker that Samsung hired.

[00:22:40] Speaker 01:
And was he under contract with Samsung?

[00:22:42] Speaker 04:
yes sir and was there payments being made to him as part of the contract we know he was at least being uh... pays expenses from my recollection your honor and the record uh... establishes that there there's nothing the record showing that samsung terminate the relationship with mister taylor in fact his contract rolls over year after year so mister taylor as far as we know is still operating as a broker percent and was he uh... you know looking for opportunities or something for samsung uh...

[00:23:12] Speaker 01:
apart from this group of patents that's at issue.

[00:23:16] Speaker 04:
Indeed he was, Your Honor, and testimony I received from Mr. Bang and others indicated that he has completed deals for Samsung and been compensated for those deals, and that's all in the record below.

[00:23:27] Speaker 01:
So the fact that he wasn't terminated doesn't necessarily mean that Samsung had basically closed the book on its interest in these patents.

[00:23:38] Speaker 01:
There may be other reasons to think it hadn't

[00:23:41] Speaker 01:
close the book, but not simply the fact that he continued in his work for Samsung, because that work, I think you just said, extended beyond these patents or maybe even beyond Imperia.

[00:23:54] Speaker 04:
Absolutely, Your Honor.

[00:23:55] Speaker 04:
And the emails produced at A8917 to 20 show that Samsung's interest didn't stop.

[00:24:02] Speaker 04:
Mr. Bang from inside Samsung was emailing Mr. Kaler after July 12, 2012, asking him questions.

[00:24:09] Speaker 03:
What's the significance of the

[00:24:11] Speaker 03:
continued interest or lack thereof.

[00:24:13] Speaker 04:
Because Samsung told the jury that it determined that our patents were not worth acquiring, that they weren't interested in them.

[00:24:21] Speaker 04:
And that their interest, yes, they looked at them a little bit in 2011, and then they ended it.

[00:24:26] Speaker 04:
These emails showed that that wasn't the case, Your Honor, and they just recorded it.

[00:24:29] Speaker 03:
What's the significance of the interest?

[00:24:32] Speaker 03:
Lack of interest?

[00:24:34] Speaker 03:
Pardon your honor?

[00:24:34] Speaker 03:
What is the significance of whether they were interested or uninterested?

[00:24:39] Speaker 04:
Well, Your Honor, the narrative that Samsung told the jury, and this is in our brief, was that the patents were worthless, that they determined they were worthless.

[00:24:48] Speaker 04:
They had no interest in them after the initial look at them, and that just wasn't the case.

[00:24:53] Speaker 01:
But is it a legal issue that this goes to willfulness?

[00:24:55] Speaker 01:
Is that the question?

[00:24:56] Speaker 01:
Does it go to anything else?

[00:24:58] Speaker 04:
It absolutely goes to willfulness.

[00:24:59] Speaker 01:
Willfulness is not a small deal, and I mean to discount it.

[00:25:02] Speaker 01:
It goes to will, does it go to something else?

[00:25:04] Speaker 04:
It goes to willfulness.

[00:25:05] Speaker 04:
It certainly goes to whether Samsung had any good faith belief that our patents were invalid or that they didn't infringe our patents.

[00:25:12] Speaker 04:
It goes to the credibility of Samsung's witnesses, at least three witnesses in the case.

[00:25:18] Speaker 04:
It certainly goes to copying the allegations of copying that were proven at trial and the judge was not cited in his order awarding exceptional case here.

[00:25:27] Speaker 01:
If the witnesses that the judge said had given

[00:25:30] Speaker 01:
false testimony testify about aspects of the case other than what you call good faith belief and willfulness?

[00:25:40] Speaker 01:
Did they testify, here's why this patent is invalid, for example, or something?

[00:25:46] Speaker 04:
Well, Samsung claimed and some of the testimony from their witnesses claimed that they had found prior art.

[00:25:54] Speaker 04:
on our path right but i'm not i can never identify correct they never identified it they never produced analysis from inside samsung that was support that never produced the prior are all we got on that was privilege objections they wouldn't disclose any of that and now they've come here and they're they're claiming they have this good-faith basis defense they had these willfulness defenses that they were concluded from putting on that simply not the case the record doesn't back that up and that's all our brief now but one thing i wanted to mention what one of the

[00:26:23] Speaker 04:
arguments they raised with regard to, they've claimed that the district court ignored the strength of their arguments on the 884 patent that they've presented on appeal.

[00:26:35] Speaker 04:
And of course, that argument's waived.

[00:26:37] Speaker 04:
They never presented that to the district court below in the fees briefing.

[00:26:40] Speaker 04:
Never brought that up.

[00:26:43] Speaker 04:
And just tacking on to the prior argument about the strength of those defenses, in response to your question, Judge Sharonto,

[00:26:53] Speaker 04:
Dr. Nykirk was impeached on numerous other issues.

[00:26:57] Speaker 04:
I cross-examined him for a lengthy amount of time and impeached him on a number of things.

[00:27:02] Speaker 04:
You can find that in the prior appeal appendix at A11993 and A11995.

[00:27:10] Speaker 04:
For example... What does this have to do with the... This sounds like the other case.

[00:27:16] Speaker 04:
Well, Your Honor, they've argued that their 84 defenses were so strong that the District Court erred in not considering that as part of its analysis.

[00:27:25] Speaker 04:
I just simply wanted to point that out with regard to that.

[00:27:29] Speaker 04:
And the example I was thinking of is, Dr. Nykert claimed he couldn't remember where he got Johnson, where he found Johnson in the other prior argument.

[00:27:39] Speaker 04:
I'm happy to move on, Your Honor.

[00:27:41] Speaker 04:
Happy to move on.

[00:27:46] Speaker 04:
Otherwise, Your Honor, Samsung has, at least in the briefing, raised this supposed parade of horrible conduct that Imperium engaged in below.

[00:27:55] Speaker 04:
That's simply not supported by the record.

[00:27:58] Speaker 04:
There was no motion for sanctions by Samsung.

[00:28:00] Speaker 04:
There was no sanctions imposed by the district court.

[00:28:03] Speaker 04:
There was nothing to base that on.

[00:28:04] Speaker 04:
And indeed, they didn't even raise this in their fees briefing below.

[00:28:09] Speaker 04:
I see I'm short of time, Your Honor.

[00:28:11] Speaker 04:
I'm happy to answer any further questions the panel may have.

[00:28:17] Speaker 03:
Okay, thank you, Mr. Seeler.

[00:28:18] Speaker 03:
Thank you.

[00:28:30] Speaker 02:
So, Your Honor, Judge Zak, I think you were referencing footnote six of the Octane Fitness decision, which I think cites to Fogarty versus Fantasy records.

[00:28:42] Speaker 02:
which is a copyright case.

[00:28:43] Speaker 02:
I think Kerstang may also say from the proposition.

[00:28:46] Speaker 02:
Yeah, I think there was a copyright case after that which addressed this question.

[00:28:50] Speaker 02:
It may be Kerstang.

[00:28:52] Speaker 02:
I'm not 100% confident, but I think so.

[00:28:55] Speaker 02:
And we agree with you that although Octane Fitness did away with the absolute categorical rule, it suggests that substantive strength is still a factor.

[00:29:06] Speaker 02:
But I think, relatedly, is if, in fact,

[00:29:11] Speaker 02:
the entire fee award is based not on that assessment at all, but solely on misconduct by the party, then this court's decision in the Rembrandt case from July 27, 2018 says that there has to be a relation between the extent of the misconduct and the fee award that's imposed as a penalty for that.

[00:29:35] Speaker 02:
Here it's the entirety of their whole case has been the basis of the sanction

[00:29:41] Speaker 02:
It doesn't bear any proportion to the alleged misconduct.

[00:29:46] Speaker 02:
I do want to turn to pages 24 to 25 of the blue brief in the FIA appeal.

[00:29:54] Speaker 02:
It goes through each of the 10 emails that was disclosed mid-trial.

[00:29:59] Speaker 02:
These are emails but for two that come from Mr. Taylor saying, I got an inquiry from Imperium.

[00:30:07] Speaker 02:
Would you like to respond?

[00:30:10] Speaker 02:
I didn't get a response to your email.

[00:30:12] Speaker 02:
Do you have anything?

[00:30:14] Speaker 02:
Do you have any direction for me?

[00:30:16] Speaker 02:
Those are the emails.

[00:30:18] Speaker 02:
I think it's entirely understandable that Mr. Bong didn't recall this as part of the discussion.

[00:30:25] Speaker 02:
It was a year prior that Samsung had said, we found some prior art and we don't think they're worth pursuing.

[00:30:33] Speaker 02:
Mr. Kaler had come back and they said, no, I'm sorry.

[00:30:36] Speaker 02:
thanks, but no thanks.

[00:30:38] Speaker 00:
He thought that was the end of it.

[00:30:39] Speaker 00:
But the Samsung's testimony on that prior argument was all over the board.

[00:30:43] Speaker 00:
I mean, Mr. Bong testified to Mr. Lee as being the person who found it.

[00:30:46] Speaker 00:
Mr. Lee said, no, I didn't.

[00:30:49] Speaker 00:
I think Bong did.

[00:30:50] Speaker 00:
They didn't have any idea whether they had found it.

[00:30:54] Speaker 02:
All of that is legitimate.

[00:30:55] Speaker 02:
And the jury was entitled to hear all that.

[00:30:58] Speaker 02:
You are right that the jury was entitled to hear all that.

[00:31:00] Speaker 02:
But instead, what happened is that they had the district judge in the robe on the

[00:31:05] Speaker 02:
podium say, those witnesses lied about their assessment of Imperium's patents.

[00:31:12] Speaker 02:
And that was based on these 10 emails.

[00:31:14] Speaker 02:
Not one of them has anything to do with that subject.

[00:31:18] Speaker 02:
And that was, if there was anything misleading to the jury, it was that statement in the supposed curative instruction.

[00:31:25] Speaker 02:
But as I said before, if there is a remand on anything, the fee award will have to be vacated and sent back.

[00:31:31] Speaker 02:
OK.

[00:31:31] Speaker 02:
Thank you.

[00:31:32] Speaker 02:
Thank both counsels.

[00:31:33] Speaker 03:
Senator, that concludes our session for this month.

[00:31:36] Speaker 01:
All rise.