[00:00:20] Speaker 02:
Next case is OF Mossberg and Sons versus Timney Triggers, 2019-11-34.

[00:01:04] Speaker 02:
We're ready when you are, Mr. Foster.

[00:01:15] Speaker 03:
May it please the court.

[00:01:17] Speaker 03:
I represent Timney, the appellant in this case.

[00:01:20] Speaker 03:
I'm Brett Foster of Dorsey and Whitney.

[00:01:22] Speaker 03:
This is a case where Timney prevailed.

[00:01:26] Speaker 03:
As and in an exceptional case we'll start with the prevailing party analysis, and I want to look at what's undisputed first Lossy was filed Quickly we moved to stay before any answer was due before any summary judging but you never filed an answer never fell an answer the

[00:01:50] Speaker 03:
the court approved shifting the invalidity dispute to the patent office by staying the case.

[00:01:57] Speaker 03:
And it wasn't just a stay, it was multiple reexaminations over a five and a half year period that ultimately resulted in the cancellation of all claims where the court four times either rejected Mossberg's attempt to lift the stay or not enter a stay.

[00:02:18] Speaker 03:
At this point, the claim is moot.

[00:02:21] Speaker 04:
Well, you say the case is moot, which is probably true.

[00:02:26] Speaker 04:
But you didn't move to dismiss it on mootness grounds.

[00:02:31] Speaker 03:
That's correct.

[00:02:31] Speaker 04:
They voluntarily dismissed under Rule 41.

[00:02:34] Speaker 03:
That's correct.

[00:02:35] Speaker 04:
And that's the issue in this case is.

[00:02:38] Speaker 04:
Are you aware of any case where a voluntary dismissal under Rule 41 establishes prevailing party status?

[00:02:45] Speaker 03:
I'm aware of a number of cases where there is

[00:02:53] Speaker 04:
They're not going to answer my question.

[00:02:54] Speaker 04:
I can tell already.

[00:02:55] Speaker 04:
Are you aware of any cases, at least in this circuit or any other circuit, where a voluntary dismissal under Rule 41 establishes prevailing party status?

[00:03:06] Speaker 03:
I'm not aware of any circuit court decision.

[00:03:08] Speaker 03:
There are district court decisions that have indicated that a voluntary dismissal or a state order would constitute a judicial input.

[00:03:19] Speaker 04:
Or a what order?

[00:03:20] Speaker 03:
A state order or a remand order.

[00:03:23] Speaker 04:
I'm specifically thinking of... Well, remand order is probably a different category, because some remand orders do establish, even in this circuit, prevailing party status, and some don't.

[00:03:35] Speaker 03:
Right, right.

[00:03:36] Speaker 03:
So that's the question for this court, is in the situation where patent claims are invalidated, the case is... You're talking about invalidation in an entirely different body, the PTAB.

[00:03:47] Speaker 04:
You didn't win here, you won at the PTAB.

[00:03:50] Speaker 03:
That's certainly true, but there is nothing left of the claim.

[00:03:55] Speaker 03:
The claims are moot.

[00:03:57] Speaker 03:
The district court could have done what the BE Technologies Court did, or the district court, and deny the motion to dismiss that was filed and just enter an order dismissing its moot.

[00:04:11] Speaker 01:
It could have done it.

[00:04:12] Speaker 01:
I think the record is clear that you took years in order to invalidate the pens, and in that sense,

[00:04:21] Speaker 01:
Perhaps it can be said, you won.

[00:04:22] Speaker 01:
You won at the PTO level.

[00:04:26] Speaker 01:
Correct.

[00:04:27] Speaker 01:
And now we're back in the district court.

[00:04:30] Speaker 03:
Yes.

[00:04:31] Speaker 01:
And we're looking at Rule 4041.

[00:04:33] Speaker 01:
Correct.

[00:04:34] Speaker 01:
And it says, a notice of dismissal that the court can file this without any action or anybody else.

[00:04:42] Speaker 01:
Notice of dismissal before the opposing party serves an answer or a motion for summary judgment.

[00:04:48] Speaker 01:
That's correct.

[00:04:49] Speaker 01:
It seems to me that your dilemma, and this is what I'd like for you to answer, is that this case, in my view, turns on the fact that you filed no answer.

[00:04:59] Speaker 01:
Right.

[00:05:00] Speaker 01:
There was nothing left for the court to look at.

[00:05:03] Speaker 01:
Right.

[00:05:03] Speaker 01:
Well, at the end of the day, there is a- Don't you agree, had you filed an answer, then Rule 41 would take a different track?

[00:05:12] Speaker 03:
I would agree.

[00:05:12] Speaker 03:
That's a fair statement.

[00:05:15] Speaker 03:
I think that would penalize, however, quickly moving to stay the case, to take advantage of what the Gould case indicates, that the efficiency and cost effective.

[00:05:28] Speaker 03:
Timmy's a smaller player in this.

[00:05:29] Speaker 04:
But that's just the way attorney's piece provisions work.

[00:05:32] Speaker 04:
There's all kind of rules and attorney fees provisions that aren't necessarily beneficial to a litigant.

[00:05:38] Speaker 04:
I mean, there used to be a catalyst theory where if you brought a litigation and the defendant voluntarily agreed to take corrective action that you could get attorney fees as a prevailing party.

[00:05:51] Speaker 04:
The Supreme Court got rid of that.

[00:05:53] Speaker 04:
That means, in an efficiency standpoint, it's discouraging people from litigation.

[00:05:57] Speaker 04:
But that's the case.

[00:05:59] Speaker 04:
The whole policy argument here, to me,

[00:06:02] Speaker 04:
No difference.

[00:06:02] Speaker 04:
The question is whether a Rule 41 dismissal, and particularly the one here, which is because you didn't answer, they were entitled to do unilaterally, can ever and has ever been found to establish prevailing party status.

[00:06:17] Speaker 04:
And I just don't see how we could ever do that.

[00:06:19] Speaker 03:
Well, there are a couple of responses.

[00:06:22] Speaker 03:
Number one.

[00:06:23] Speaker 03:
back to the issue of the unfairness, there is a lot of work and expense that would go on the policy ground.

[00:06:30] Speaker 03:
Is there a rule 12 B motion?

[00:06:32] Speaker 03:
Is there inequitable conduct counterclaims that need to be investigated?

[00:06:35] Speaker 03:
Is there a section 101 motion?

[00:06:38] Speaker 03:
In this case, the allegation of infringement was a single sentence that says, we believe that the product, the accused product is covered.

[00:06:47] Speaker 03:
It wouldn't satisfy the Twombly standards.

[00:06:49] Speaker 03:
So all of these fees relating to answering the complaint and motions that would be filed under 12B would be foist upon a defendant.

[00:06:57] Speaker 03:
So penalizing rather than encouraging, going to the patent office quickly and finding a stay,

[00:07:03] Speaker 04:
Why is it penalizing?

[00:07:05] Speaker 04:
What it's done, because of the early stay, is you had to do very minimal work in this litigation.

[00:07:10] Speaker 04:
You filed a bunch of motions for stays, which the court granted.

[00:07:15] Speaker 04:
And so I'm a little confused what even kind of fees you're asking for here.

[00:07:20] Speaker 04:
I mean, how much can it really be to file a bunch of motions for stays here?

[00:07:26] Speaker 04:
And why we're even here on appeal over that dollar amount?

[00:07:30] Speaker 03:
Yeah, well, that's a different question.

[00:07:33] Speaker 03:
The cases from this court have indicated that when you have a re-examination or re-issue proceedings.

[00:07:41] Speaker 04:
I suspected that's what you were going to tell me, that you were going to try to seek the PTAB fees there.

[00:07:45] Speaker 03:
Absolutely.

[00:07:46] Speaker 04:
I think that is not a decided question.

[00:07:48] Speaker 04:
That's a very controversial question.

[00:07:50] Speaker 03:
OK, well, that would be an issue for another day if we got past the issue.

[00:07:54] Speaker 04:
If you actually were prevailing party instead of subject to a voluntary dismissal.

[00:07:59] Speaker 04:
I also think that- Again, you're trying to argue policy reasons, but the Supreme Court precedent seems to make it very clear that there has to be some kind of judicial imprimatur on the change in relationship between the parties.

[00:08:15] Speaker 04:
The Rule 41 isn't it.

[00:08:18] Speaker 04:
You can argue that all you want, but I don't see how a voluntary dismissal by the other side is ever a judicial imprimatur.

[00:08:25] Speaker 04:
The district court doesn't have any discretion there.

[00:08:28] Speaker 04:
So the only orders here are state orders.

[00:08:32] Speaker 04:
But how are they some kind of change in relationship between the parties as to the ultimate outcome as opposed to the procedural aspects of this case?

[00:08:43] Speaker 03:
I understand the concern.

[00:08:44] Speaker 03:
The issue is really, in a nutshell, this district court

[00:08:52] Speaker 03:
said, we're going to shift the issue.

[00:08:53] Speaker 03:
And the order of stay is judicial approval or sanctioning or judicial imprimatur of the ultimate alco of the stay, which resulted necessarily in the dismissal.

[00:09:07] Speaker 03:
And there is, though it's a procedural nullity because of the self-executing nature of Rule 41, there was a dismissal order entered by the court.

[00:09:16] Speaker 03:
It's there.

[00:09:16] Speaker 03:
It's a record.

[00:09:18] Speaker 03:
It happened the day after.

[00:09:19] Speaker 04:
But it doesn't matter because it can't

[00:09:21] Speaker 04:
it can't do anything to the voluntary dismissal itself.

[00:09:28] Speaker 03:
vacated the voluntary dismissal and said this case is moot because there is no jurisdiction.

[00:09:38] Speaker 03:
Did that happen before?

[00:09:39] Speaker 04:
If you'd asked them to do that and we had gotten that, we might have had a different question for appeal.

[00:09:46] Speaker 04:
Although the answer, at least in my view, would have been that would have been improper because under Rule 41, before an answer is filed,

[00:09:54] Speaker 04:
they are entitled unilaterally to dismiss their complaint.

[00:10:00] Speaker 03:
If it wasn't moot.

[00:10:02] Speaker 03:
I think if we have a moot case and the court has no jurisdiction.

[00:10:05] Speaker 04:
They're entitled to dismiss their case whether it's moot or not.

[00:10:08] Speaker 03:
They are under the rules.

[00:10:10] Speaker 03:
Could that involve a Rules Enabling Act violation where the substance overcomes the procedure?

[00:10:16] Speaker 03:
And that's really where the BE Technologies and this Ranieri decision from this court, as well as CRST says,

[00:10:24] Speaker 03:
Look at the common sense result here.

[00:10:25] Speaker 03:
Absolutely, we won.

[00:10:28] Speaker 04:
Even if it was in the past.

[00:10:30] Speaker 04:
Those cases do not help you in the way you think they help you.

[00:10:33] Speaker 04:
Those cases involve an actual court order changing the relationship with the parties.

[00:10:39] Speaker 04:
They may not be decisions on the merits of the litigation.

[00:10:43] Speaker 04:
One is mootness.

[00:10:43] Speaker 04:
One is something else.

[00:10:45] Speaker 04:
But they're an actual order from a court ruling in favor of a party on some ground.

[00:10:52] Speaker 04:
There is no order ruling in your favor on some ultimate conclusion here, is there?

[00:10:58] Speaker 03:
There is not.

[00:10:59] Speaker 03:
The B.E.

[00:10:59] Speaker 03:
Technologies case does say that the victory was won at the patent office.

[00:11:04] Speaker 03:
Even though it was won at the patent office, the result is that they're a prevailing party.

[00:11:09] Speaker 04:
But that was actually, the patent office didn't matter.

[00:11:13] Speaker 04:
The case was dismissed.

[00:11:15] Speaker 04:
Is that the mootness case?

[00:11:16] Speaker 03:
That is correct.

[00:11:17] Speaker 03:
That's the jurisdictional case on mootness.

[00:11:19] Speaker 03:
But it says right there.

[00:11:20] Speaker 04:
So there is an order in the defendant's favor dismissing the case as moot, making them the prevailing party.

[00:11:28] Speaker 03:
And I think that runs.

[00:11:29] Speaker 04:
You want to extend that one further and say, it doesn't matter.

[00:11:32] Speaker 04:
You don't even need a court order.

[00:11:33] Speaker 04:
If you win at the patent office, you get attorney fees in the district court litigation.

[00:11:38] Speaker 04:
That's extraordinary.

[00:11:40] Speaker 04:
Attorney fees under the American rule are not shifted.

[00:11:44] Speaker 04:
There has to be explicit statutory authorization for them.

[00:11:50] Speaker 04:
There's no explicit statutory authorization for you to get PTAB fees.

[00:11:55] Speaker 03:
Right.

[00:11:56] Speaker 03:
And I think the history of this court has indicated that when you went at the Patent Office and invalidated a competitor's patent in Manila, it said, you are the prevailing party.

[00:12:10] Speaker 03:
In PPG, it said, even though it didn't exist.

[00:12:13] Speaker 04:
Only if there is an order from the court that changes the relationship with the parties.

[00:12:20] Speaker 04:
All those cases you're citing, too,

[00:12:23] Speaker 04:
there always is an ultimate order from the court.

[00:12:26] Speaker 04:
Is there not?

[00:12:28] Speaker 04:
Every case that Rainier had a decision from the court.

[00:12:32] Speaker 04:
Right.

[00:12:33] Speaker 04:
Apart from the improper order here, or extraneous order, however you want to describe it, there is not an ultimate order from the court disposing of this case.

[00:12:43] Speaker 03:
There is the order to file the voluntary dismissal order.

[00:12:46] Speaker 04:
Yeah, but I think you have to concede that that order is completely extraneous.

[00:12:50] Speaker 04:
Rule 41 is,

[00:12:51] Speaker 04:
self-executing when an answer hasn't been filed.

[00:12:54] Speaker 04:
So put that one aside.

[00:12:55] Speaker 04:
That's not going to help you.

[00:12:56] Speaker 04:
There is no other order.

[00:12:58] Speaker 03:
But you can't say that the court didn't, by doing that, approve what was done at the patent office after stating the case and maintaining it.

[00:13:04] Speaker 04:
But this happens all the time in attorney fees cases.

[00:13:07] Speaker 04:
In the big protest cases where a protester comes in and complains about government misconduct, and the government says, yeah, you're right.

[00:13:15] Speaker 04:
You got us.

[00:13:16] Speaker 04:
We'll take this back.

[00:13:18] Speaker 04:
And the court dismisses the case

[00:13:22] Speaker 04:
There is even an order in those cases dismissing the case, but they still don't get attorney fees because the court order is not a change in relationship between the parties.

[00:13:33] Speaker 04:
Isn't that the same thing here?

[00:13:36] Speaker 03:
I don't see it.

[00:13:36] Speaker 04:
I think this case is one where I mean, wouldn't it be just in pure conflict with Supreme Court precedent to say that a case without a judicial order change between the parties

[00:13:51] Speaker 04:
is still sufficient to establish prevailing party status.

[00:13:54] Speaker 04:
I think we'd get flip 9-0 in a matter of months on that.

[00:13:59] Speaker 03:
I respectfully disagree.

[00:14:01] Speaker 04:
But you haven't cited a single case about Rule 41 dismissals.

[00:14:05] Speaker 04:
You cite cases that are irrelevant to that question at issue.

[00:14:10] Speaker 04:
You're asking us to go way out on a limb here.

[00:14:12] Speaker 03:
Deep Sky is a district court case where before the court entered its dismissal order,

[00:14:17] Speaker 03:
It found the prevailing party, because all the claims in the patent were canceled, provides implicit authority, not circuit authority, that the decision staying the case is sufficient judicially and premature.

[00:14:31] Speaker 02:
Counsel, you wanted to say some rebuttal time.

[00:14:33] Speaker 02:
I better.

[00:14:34] Speaker 02:
I better.

[00:14:34] Speaker 03:
Thank you, Your Honor.

[00:14:35] Speaker 02:
We'll save the rest for you, Ms.

[00:14:37] Speaker 02:
Miller.

[00:14:47] Speaker 04:
Do you know the district court case he's talking about?

[00:14:49] Speaker 00:
Yes, Your Honor.

[00:14:50] Speaker 04:
Do you want to address that?

[00:14:51] Speaker 00:
I mean, not that it's binding, if one asks.

[00:14:52] Speaker 00:
I would, actually.

[00:14:53] Speaker 00:
That's the Deep Sky case.

[00:14:55] Speaker 00:
Actually, in that case, the plaintiff did not raise the prevailing party issue.

[00:14:59] Speaker 00:
If you read the decision directly before, it was agreed to.

[00:15:02] Speaker 00:
So that wasn't at issue at all.

[00:15:04] Speaker 00:
They agreed that it was an exceptional case.

[00:15:06] Speaker 00:
It never came into question.

[00:15:09] Speaker 00:
I would also like to first raise.

[00:15:12] Speaker 04:
Are you aware of any cases where a voluntary dismissal under rule forty one establishes prevailing party status?

[00:15:20] Speaker 00:
No, your honor.

[00:15:20] Speaker 00:
No cases exist as far as I was able to tell.

[00:15:23] Speaker 01:
What difference would it have made if any of if an answer had been filed in this case?

[00:15:29] Speaker 00:
I think it would have made a very great difference, Your Honor, because at that point, a court order would have needed to be entered, and then they would be able to point to some sort of court order.

[00:15:37] Speaker 01:
Did they have to move to dismiss at that point?

[00:15:38] Speaker 00:
They would have had to move to dismiss.

[00:15:40] Speaker 00:
For mootness, I would guess.

[00:15:41] Speaker 01:
Or get your voluntary agreement.

[00:15:43] Speaker 00:
Or by voluntary agreement.

[00:15:44] Speaker 00:
But there'd be a court order either way, and then they would be able to point to the BE Technology case and say, we have a court order.

[00:15:50] Speaker 00:
And there was mootness here because of what happened at the P-Tap.

[00:15:53] Speaker 01:
What about, it seems to me that the appeal window to the Federal Circuit was still open at the time that the dismissal order was entered.

[00:16:01] Speaker 01:
Does that make a difference?

[00:16:03] Speaker 00:
I don't think it should, Your Honor.

[00:16:06] Speaker 00:
It was still open, which so arguably may not have been moot at that point, since we could have still appealed at the point that we decided to dismiss.

[00:16:13] Speaker 00:
So I suppose

[00:16:14] Speaker 00:
If we ended up having an argument over whether or not it was dismissed for being moot, it may have come up then.

[00:16:19] Speaker 01:
For example, yeah, if the order had been entered after the appeal window closed.

[00:16:25] Speaker 00:
If the appeal window closed and we filed our voluntary dismissal, then we'd be here at the same, exact same point.

[00:16:33] Speaker 00:
If the appeal window closed and then they filed a motion, then that would be what we just discussed.

[00:16:38] Speaker 00:
That's the BE technology case.

[00:16:41] Speaker 00:
So I don't know if the timing with regard to the appeal period not having yet run really makes too much of a difference on the facts we are discussing here.

[00:16:48] Speaker 04:
I mean, if you file a voluntary dismissal and then try to appeal from that voluntary dismissal, you're going to have all kinds of other problems anyway.

[00:16:57] Speaker 00:
Correct, Your Honor.

[00:16:58] Speaker 00:
I mean, at that point, there's no real point in appealing.

[00:17:01] Speaker 00:
I mean, we could bring the case again.

[00:17:02] Speaker 00:
But then, of course, we're risking fees under 41D.

[00:17:05] Speaker 00:
So I don't know that we would want to do that.

[00:17:07] Speaker 01:
Well, maybe you misunderstood me.

[00:17:09] Speaker 01:
I meant if he followed the voluntary dismissal after the window has closed.

[00:17:15] Speaker 00:
No, I don't think that would make any difference, Your Honor, because we still have the right to voluntarily dismiss the case and still be missing the judicial informata, which is required under Buchanan.

[00:17:23] Speaker 00:
So I think he's still running to the same problem.

[00:17:26] Speaker 00:
I know that Timmy has committed to both the stay order and the dismissal order that came after our voluntary dismissal.

[00:17:35] Speaker 00:
And I think that you had quite a bit of colloquy with him on that.

[00:17:38] Speaker 00:
I did want to point out that

[00:17:40] Speaker 00:
Um, Mossberg believes both those arguments were actually waived as well.

[00:17:43] Speaker 00:
These are not arguments that were brought up to the district court below.

[00:17:45] Speaker 00:
The first time they started pointing to things was on appeal before the district court.

[00:17:51] Speaker 00:
Um, they relied on the PPG case of Menildrum Milling.

[00:17:55] Speaker 00:
just to say that a PTAP decision means that they won, means that they're a prevailing party.

[00:18:01] Speaker 00:
So they didn't actually point to judicial informata at any point.

[00:18:04] Speaker 00:
They just kind of didn't acknowledge that that was a requirement.

[00:18:07] Speaker 00:
With regard to the PPG case of Meninga-Milling, I think you've already gone through that pretty well with counsel.

[00:18:14] Speaker 00:
But there were court orders.

[00:18:15] Speaker 00:
Meninga-Milling had actually a jury trial of multiple weeks.

[00:18:18] Speaker 00:
So they were distinguishable cases, which is what the district court found as well.

[00:18:24] Speaker 00:
And of course, if this court, I'm guessing, does want to still hear the argument and does not think it's been waived, I'm happy to answer any questions about those cases.

[00:18:34] Speaker 00:
The remand orders came up as something you could potentially liken a stay order to a remand order.

[00:18:40] Speaker 00:
The cases they cite for that are definitely distinguishable.

[00:18:43] Speaker 00:
The Martinez case and the Singh case, for example, were remands to a defendant agency.

[00:18:48] Speaker 00:
with instructions by the court.

[00:18:49] Speaker 00:
So it's definitely different than a stay order just giving you a stay so that you can go over to an alternative body to deal with the patent claims.

[00:18:59] Speaker 00:
I did want to mention that the case was not stayed right away.

[00:19:04] Speaker 00:
It was actually six months in when the case was stayed.

[00:19:07] Speaker 00:
So they had an opportunity to answer or to file a motion for summary judgment if they wanted to.

[00:19:12] Speaker 00:
They elected to go to the PTO instead, which is, of course, an option open to them.

[00:19:18] Speaker 00:
Unless this court wishes to switch judicial imprimatur to agency imprimatur, I don't see why staying the order and switching it over would make too much of a difference without that judicial imprimatur at the end.

[00:19:31] Speaker 00:
Another case that they pointed to is the Gracious Arc case, and that is a case where it was a stay.

[00:19:38] Speaker 00:
This is also a district court case.

[00:19:41] Speaker 00:
But that case actually concluded, if you read the order in that, that because the court played no role in the agency granting of the plaintiff's application, the plaintiff was not a prevailing party.

[00:19:53] Speaker 00:
So that was the one case that they had mentioned that was actually on point at the district court level.

[00:19:57] Speaker 00:
And it did not come out the way they are interested in saying it did.

[00:20:01] Speaker 00:
The Thomas B. Buckner case.

[00:20:03] Speaker 00:
The court refused to give an advisory opinion and then denied the motion for fees.

[00:20:09] Speaker 00:
And I believe those are the five district court cases in their reply brief that they mentioned as being persuasive on the motion to stay issue.

[00:20:18] Speaker 00:
And we already went through the dismissal order itself.

[00:20:22] Speaker 00:
As Your Honor noted, it is void.

[00:20:27] Speaker 00:
Our voluntary dismissal was effective upon filing under both the authority of this circuit and under the Second Circuit.

[00:20:35] Speaker 00:
Um, to mention the second part of this, um, because I do think it is important to mention the district court also found correctly that this was not an exceptional case.

[00:20:46] Speaker 04:
Um, the district court have to reach any of that, right?

[00:20:49] Speaker 04:
If it's, if they're not a prevailing party.

[00:20:52] Speaker 00:
No, your honor.

[00:20:52] Speaker 00:
I believe the district court wanted to be thorough, but, um, just, uh, to defend the district court, he did recite the octane fitness standard correctly.

[00:21:00] Speaker 00:
and applied it quite well.

[00:21:03] Speaker 00:
And I did want to make sure to mention that the court looked at everything that Timney brought up before it to weigh it and see if this was something that made the case stand out from all other cases as it was commanded to do under octane.

[00:21:20] Speaker 00:
And nothing that Timney pointed out seemed to give the court much concern.

[00:21:27] Speaker 00:
They attempted to liken Mossberg to a patent troll

[00:21:31] Speaker 00:
in a way, and the court seemed to accept the fact that Mossberg has been making firearms since 1919 as evidence that it actually was and had been planning to make the trigger for over a decade now.

[00:21:43] Speaker 00:
They talked about the settlement demands.

[00:21:45] Speaker 00:
I do think that's important to mention.

[00:21:48] Speaker 00:
That wasn't evidentiary ruling, which should be reviewed with extreme deference anyway, but the decision by the court was that the

[00:21:55] Speaker 00:
settlement language was not probative, which actually makes sense because Timney had mentioned both that it was a million dollar settlement demand and that it was similar to when you try to extract small settlements from counsel.

[00:22:10] Speaker 00:
So the district court seemed concerned about these two very different arguments coming at once and so decided not to give much credence to either, which was appropriate and certainly not an abuse of discretion.

[00:22:23] Speaker 00:
In terms of the weakness of the patent itself, there was quite a bit of discussion about that.

[00:22:29] Speaker 00:
But the district court accepted that both the pre-filing determination of infringement was not refuted.

[00:22:36] Speaker 01:
Where does this matter to the issue we're looking at?

[00:22:39] Speaker 00:
It really doesn't, Your Honor.

[00:22:40] Speaker 01:
Then let's go on with something else.

[00:22:42] Speaker 00:
OK.

[00:22:42] Speaker 04:
Can I just make a suggestion?

[00:22:46] Speaker 04:
If we didn't ask him anything about it, accessional circumstances, and we're not asking you anything about it, we're fine with what your brief said.

[00:22:54] Speaker 00:
I appreciate that, Your Honor.

[00:22:55] Speaker 00:
I just didn't want you to have a question after their rebuttal.

[00:22:57] Speaker 00:
If the court has any other questions, I'm happy to answer them.

[00:23:00] Speaker 02:
You want it to be thorough as the district court was thorough.

[00:23:04] Speaker 00:
I'm sorry, Your Honor?

[00:23:05] Speaker 02:
You want it to be thorough as the district court was thorough.

[00:23:08] Speaker 00:
That's what I was looking to do, Your Honor.

[00:23:10] Speaker 00:
Do you have any other questions on the prevailing party issue?

[00:23:13] Speaker 00:
Well, then I'd be happy to rest in my brief.

[00:23:15] Speaker 00:
Thank you, Your Honor.

[00:23:16] Speaker 02:
Thank you, Counsel.

[00:23:18] Speaker 02:
Mr. Foster has little time left.

[00:23:22] Speaker 03:
I don't have much time.

[00:23:23] Speaker 03:
Quickly answering the question from the court, if they had filed the 41A1 dismissal after the time to appeal, I think it would have made a difference technically.

[00:23:41] Speaker 03:
But I think it was already moot because they indicated they were not going to appeal it.

[00:23:45] Speaker 03:
That makes it moot.

[00:23:47] Speaker 03:
And that makes this case distinguishable from

[00:23:49] Speaker 03:
Be technology only because of the procedural dismissal by the district court on mootness.

[00:23:55] Speaker 03:
I again.

[00:23:55] Speaker 03:
I don't think that the the the Thomas v. Buckner case you should look at that it talks specifically about the issue of a state order and that the court could have declined to issue the stay didn't

[00:24:11] Speaker 03:
gives language that supports it.

[00:24:14] Speaker 03:
In Rainier, the court cited with approval Wright Miller that says, dismissal of an action, whether on the merits or not, generally means to defend as the prevailing party.

[00:24:25] Speaker 04:
Sure, but again, dismissal of an action, not a voluntary dismissal by the party.

[00:24:30] Speaker 03:
And then I think Martinez and Singh, Singh was a case where there was no dismissal order.

[00:24:37] Speaker 03:
There was a remand to an agency for their expertise.

[00:24:40] Speaker 03:
There's no remand here.

[00:24:42] Speaker 04:
There is a collateral proceeding in a different administrative body.

[00:24:46] Speaker 04:
That is not the same as a court remanding to an agency over which is the reviewing authority.

[00:24:54] Speaker 03:
I agree there's differences, but it's analogous.

[00:24:58] Speaker 03:
Again, the policy arguments underlying CRST and the common sense analysis we think is appropriate.

[00:25:06] Speaker 03:
There was a dismissal order.

[00:25:08] Speaker 03:
And thank you.

[00:25:11] Speaker 03:
Appreciate it.

[00:25:11] Speaker 03:
Thank you, counsel.

[00:25:12] Speaker 03:
The case is submitted.