[00:00:04] Speaker 02:
Our first case today, my voice sounds worse than it is, just so you know.

[00:00:09] Speaker 02:
I'll leave a motion.

[00:00:22] Speaker 03:
I have a motion for admission to the bar.

[00:00:26] Speaker 03:
I move the admission of Gary M. Fox, who is a member of the bar and is in good standing with the highest court of New York.

[00:00:34] Speaker 03:
I have knowledge of his credentials and am satisfied that he possesses the necessary qualifications.

[00:00:41] Speaker 03:
I have this knowledge because Gary was one of my law clerks last year and left chambers over the summer.

[00:00:52] Speaker 03:
We miss him very much.

[00:00:55] Speaker 03:
He was a splendid law clerk.

[00:00:56] Speaker 03:
He was meticulous and thorough, very precise and clear-headed in his thinking and writing.

[00:01:05] Speaker 03:
Understood that when reading

[00:01:10] Speaker 03:
most of what we read, which is sentence after sentence after sentence submitted by lawyers with, by definition, an angle.

[00:01:18] Speaker 03:
One has to not take every word that faces you and figure out what exactly is going on behind everything.

[00:01:27] Speaker 03:
And he was a wonderful companion in chambers, both to me and to his fellow law clerks.

[00:01:37] Speaker 03:
He has launched in a very promising, bright career.

[00:01:43] Speaker 03:
And we look forward to seeing him in this court and wherever else he flies his trade.

[00:01:52] Speaker 01:
I am more in favor of voting on the motion.

[00:01:56] Speaker 02:
I'm in favor.

[00:01:57] Speaker 02:
And if Judge Toronto says you're ridiculous, holy cow, you must be detail-oriented.

[00:02:06] Speaker 01:
I'm going to assume the presiding duties, just because I have a voice and my colleague does it.

[00:02:12] Speaker 01:
But she's really the presiding judge here, OK?

[00:02:14] Speaker 01:
So whatever motion she makes to you, obey them.

[00:02:18] Speaker 01:
Do you want to face the?

[00:02:39] Speaker 01:
Thank you.

[00:02:42] Speaker 01:
We have five cases before us today, four for oral argument.

[00:02:46] Speaker 01:
One case has been submitted on briefs.

[00:02:48] Speaker 01:
The first case today is personal audio LLC versus CBS Corporation 18-2256.

[00:02:53] Speaker 01:
Mr. Peacock, you have, you reserved five minutes of your time for rebuttal, is that correct?

[00:03:02] Speaker 01:
Yes, Your Honor.

[00:03:04] Speaker 01:
Okay, you may proceed.

[00:03:12] Speaker 00:
may please the court.

[00:03:14] Speaker 00:
The first issue that needs to be decided is whether we can even be here looking at the jury verdict because of the IPR decision.

[00:03:28] Speaker 00:
And I believe that it is wholly within Supreme Court precedent that you must have a chance to challenge any proceeding.

[00:03:40] Speaker 00:
that is going to be used to collaterally stop a jury verdict under Blondertongue, which reversed

[00:03:50] Speaker 00:
many, many years of not allowing issue preclusion between different parties.

[00:03:56] Speaker 00:
The Supreme Court said, although neither judges, the parties, nor the adversary system performs perfectly in all cases, the requirement of determining whether the party against whom an estoppel is asserted had a full and fair opportunity to litigate is a most significant safe- Why didn't you have a full and fair opportunity to litigate when you appealed?

[00:04:17] Speaker 02:
The prior IPR, you had an IPR proceeding.

[00:04:21] Speaker 02:
You had an appeal to this court.

[00:04:23] Speaker 02:
Most of your constitutional challenges to us, due process and takings, relate to the impropriety that you think existed in the IPR.

[00:04:33] Speaker 02:
They don't relate to the district court litigation.

[00:04:35] Speaker 02:
So why didn't you already have a full and fair opportunity to litigate?

[00:04:40] Speaker 02:
And for whatever reason, you just chose not to avail yourself of it.

[00:04:44] Speaker 00:
Well, Your Honor, the law has changed in Arthrex, which was recently decided.

[00:04:49] Speaker 02:
Wait, how has due process and takings law changed?

[00:04:53] Speaker 00:
So Your Honor, due process law would require that the proceedings below be consistent with the Constitution of the United States.

[00:05:04] Speaker 00:
And this court has recently ruled that, in fact, under the Appointments Clause, the prior RPRs.

[00:05:12] Speaker 02:
Yes, but you have waived that issue.

[00:05:14] Speaker 00:
I disagree, Your Honor.

[00:05:15] Speaker 02:
That's fine, but we don't disagree.

[00:05:17] Speaker 02:
And custom media says you waived it.

[00:05:19] Speaker 02:
It's a presidential decision of this court.

[00:05:21] Speaker 02:
So this panel is without any authority to give you any relief on that point.

[00:05:26] Speaker 02:
So why don't you move on to whatever points we could possibly give you relief on?

[00:05:30] Speaker 00:
Certainly, Your Honor.

[00:05:31] Speaker 00:
So in B&B hardware, also under the Supreme Court, cited by the Appellees.

[00:05:38] Speaker 03:
Can I just try to understand?

[00:05:40] Speaker 03:
I think not quite all, but most of the arguments you make are arguments that challenge the board's final written decision and the ministerial act of cancellation that followed that.

[00:05:55] Speaker 03:
You do have one argument that

[00:06:00] Speaker 03:
is not a challenge to the board decision, but is a challenge to the effect of the board decision on the district court case.

[00:06:10] Speaker 03:
And on that, I guess I would tend to agree that of course you can make that argument

[00:06:17] Speaker 03:
But equally, of course, as I think you agreed in the district court, our current binding precedent, Fresenius and all that Fresenius is built on, precludes us from agreeing with you.

[00:06:31] Speaker 03:
So we have jurisdiction to hear that, but we have to rule against you on the merits.

[00:06:38] Speaker 03:
But it's not that we can't hear that particular point.

[00:06:41] Speaker 00:
No, and that's really the point I'm trying to make, which is that you do have the ability to challenge the effect of this later IPR decision

[00:06:53] Speaker 00:
on the jury verdict that was rendered long before the supposed cancellation of the claims.

[00:07:01] Speaker 00:
And then that right is under Blondertongue and B&B Hardware.

[00:07:06] Speaker 00:
And what has changed is that the Arthrex case has held that the appointments clause was violated in the IPR that canceled the patent suit.

[00:07:20] Speaker 00:
And therefore, the argument that I believe still remains is, are you going to give collateral estoppel effect to a proceeding that this court has held to be unconstitutional?

[00:07:32] Speaker 00:
I can't challenge.

[00:07:33] Speaker 00:
I'm not trying to go back and file any new claims.

[00:07:37] Speaker 00:
I'm not trying to challenge the decision of the board in this proceeding.

[00:07:44] Speaker 00:
I'm saying that it shouldn't be given preclusive effect

[00:07:48] Speaker 00:
because as it says in B&B hardware, Judge Alito, the correct inquiry is whether the procedures used in the first proceeding, which in this case was actually the second proceeding, were fundamentally poor, cursory, or unfair.

[00:08:04] Speaker 00:
And I would submit that an unconstitutional proceeding is per se unfair.

[00:08:09] Speaker 02:
So just to be clear, your entire argument to us today is Arthrex and not any of the

[00:08:14] Speaker 02:
multitude of constitutional issues you raised in your brief?

[00:08:18] Speaker 02:
What about your claim about due process, takings, ex post facto, Seventh Amendment?

[00:08:24] Speaker 02:
I mean, you hardly missed a section of the Constitution, so what about all those?

[00:08:30] Speaker 00:
Certainly, Your Honor.

[00:08:31] Speaker 00:
I continue to believe that the failure to construe the claims under 37 CFR, Section 42.104.B3 rendered the claims constitutionally infirm.

[00:08:44] Speaker 00:
The failure to follow the procedures under Matthew and Eldridge that are required for construing series of episodes, for example, I think were fundamentally one of the issues.

[00:08:57] Speaker 00:
But you could certainly argue that all of that

[00:09:00] Speaker 00:
was raised and could have been raised in the earlier proceeding, and it wasn't found to be unfair then, so I doubt you're going to find any of it unfair now.

[00:09:13] Speaker 00:
The thing that has changed is this court has held that the Appointments Clause was violated in the earlier IPR, and that wasn't the case when we were briefing any of these issues before.

[00:09:28] Speaker 02:
So to summarize what you just said, that you're no longer really expecting any relief on any of the arguments you made in your brief, and you're hinging your argument today on the Appointments Clause, which by the way you referred to as the Apportionment Clause, and you're filing to this Court.

[00:09:49] Speaker 00:
I apologize.

[00:09:50] Speaker 00:
No, Your Honor, that's not, that's not correct.

[00:09:52] Speaker 00:
I also believe that under the Seventh Amendment and this court's precedent, earlier precedent, specifically Dura Last V custom seal, you cannot use a later proceeding to overturn a jury verdict under the Seventh Amendment.

[00:10:09] Speaker 03:
But that really is an argument as I read it in your brief that challenges the agency's decision.

[00:10:20] Speaker 03:
I didn't see a separate argument that said taking the final written decision as a given and the ministerial act of cancellation that follows from it as a given that the Seventh Amendment

[00:10:34] Speaker 03:
precludes giving effect to that in the district court proceeding.

[00:10:41] Speaker 03:
You make that argument on sort of collateral estoppel grounds, and you think Fresenius is wrong and whatnot, but a separate point about the Seventh Amendment I don't think I was seeing.

[00:10:55] Speaker 00:
And I apologize if it was unclear in the briefing, Your Honor.

[00:10:59] Speaker 00:
The argument was raised a few different times that nothing that occurs after the jury verdict can possibly be a reason for overturning it, because under this court's precedent, Enduro will ask to be custom sealed.

[00:11:16] Speaker 00:
You have to raise whatever issues you're going to raise to challenge the verdict in the pre-verdict judgment as a matter of law.

[00:11:25] Speaker 00:
There is no way that you could argue that as a matter of law, you'd win under an IPR before the verdict.

[00:11:33] Speaker 00:
There's no way you can make that argument, because it hasn't occurred yet.

[00:11:37] Speaker 00:
Once the jury verdict is rendered, then you're as stopped under the Seventh Amendment, and I believe under this court's decision, enduro last from now raising later after the fact proceedings to try to challenge what the jury verdict holds.

[00:11:54] Speaker 00:
And that is an argument that again is protecting the jury verdict, not challenging the administrative decision.

[00:12:03] Speaker 02:
Did you make this argument to the district court?

[00:12:09] Speaker 00:
I believe, Your Honor, and I want to be perfectly frank, I'm trying to remember all the arguments from a few years ago that we raised to the District Court.

[00:12:20] Speaker 00:
I believe that we argued the Seventh Amendment, I believe we argued that the Seventh Amendment was violated by reexamining the jury verdict

[00:12:30] Speaker 00:
by the RPR proceeding after the fact, I don't recall off the top of my head whether we cited this specific case due or alas for that proposition.

[00:12:40] Speaker 03:
My recollection, tell me if I'm wrong, is that you did make a Seventh Amendment point and a collateral estoppel point, but immediately you didn't develop the arguments.

[00:12:51] Speaker 03:
You said there's really no point in developing the arguments because we agree that existing governing precedent is against us on that, so we will accept judgment as a matter of law.

[00:13:04] Speaker 00:
So we argued that, I mean, the judge asked us to brief him by letter on what we believe the effect of the decision on the IPR was.

[00:13:20] Speaker 00:
We, at the time, were not aware of any precedent on point.

[00:13:27] Speaker 00:
And I believe that one of the cases had just come out

[00:13:34] Speaker 03:
Right, but I guess I'm looking at page four, four to three of the appendix, which is, you know, your statement of your position in this.

[00:13:42] Speaker 03:
And it says, we continue to believe that overturning the verdict is, you know, violates the seventh amendment.

[00:13:50] Speaker 03:
that constitutional question left open by oil states.

[00:13:53] Speaker 03:
We also believe collateral estoppel is not appropriate.

[00:13:56] Speaker 03:
However, personal audio believes that current authority supports rendering a judgment in favor of the defendant's CBS so that the issues can be appealed.

[00:14:06] Speaker 00:
And I believe that that was our view of the authority at the time, was that we did not believe that there was an argument that the Federal Circuit had accepted.

[00:14:18] Speaker 03:
And the only intervening thing that's happened is our threats on the appointments clause, is that?

[00:14:24] Speaker 00:
That is, I would say, not the only intervening thing that has happened.

[00:14:34] Speaker 00:
I mean, so it's not the only intervening thing.

[00:14:37] Speaker 00:
I mean, Mr. Lieberman filed a letter brief.

[00:14:39] Speaker 00:
I believe some of the due process challenges and other things have been resolved by this court as well.

[00:14:44] Speaker 03:
Nothing intervening that might help you.

[00:14:46] Speaker 03:
That might help me.

[00:14:47] Speaker 01:
Yes.

[00:14:47] Speaker 01:
Counselor, you're into your rebuttal time.

[00:14:49] Speaker 01:
Do you want to save your time?

[00:14:51] Speaker 01:
I do.

[00:14:51] Speaker 01:
Thank you, Your Honor.

[00:15:03] Speaker 04:
Judge Moran, may it please the court, I have just three very brief points I'd like to make that I think address all of the various points made by Mr. Pitcott.

[00:15:14] Speaker 04:
Personal audio advances on this appeal more than half a dozen different arguments, constitutional arguments.

[00:15:20] Speaker 04:
I actually got to use my pocket constitution quite a lot on this appeal.

[00:15:27] Speaker 04:
But I think every one of the arguments is subject to three fatal flaws.

[00:15:30] Speaker 04:
The first one is that no final judgment was ever entered in personal audio's favor in the district court action.

[00:15:38] Speaker 04:
There was a jury verdict.

[00:15:40] Speaker 04:
There were judgments as a matter of law.

[00:15:44] Speaker 04:
Those were pending.

[00:15:45] Speaker 04:
when the parties jointly move, that is, Personal Audio joined in this motion to stay the District Court action pending the results of Personal Audio's appeal of the final written decision in the IPR.

[00:15:58] Speaker 04:
So whatever consequences flow from that are directly the result of a strategic decision that Personal Audio made.

[00:16:08] Speaker 04:
Second, personal audio has waived each and every one of its currently asserted defenses by one of three methods, either by not presenting them to the district court when it agreed to enter judgment for CBS, by not presenting them in its earlier appeal to this court from the IPR ruling,

[00:16:28] Speaker 04:
or by presenting the arguments in the earlier appeal and losing them.

[00:16:32] Speaker 04:
So the only constitutional arguments that were presented to this court on the appeal from the IPR were the Seventh Amendment arguments, including the reexamination clause arguments.

[00:16:42] Speaker 04:
They lost on those.

[00:16:44] Speaker 04:
They didn't present any others.

[00:16:45] Speaker 04:
Those were all waived.

[00:16:46] Speaker 03:
Why, as to the two points that it did mention at page 423 of the appendix when agreeing to entry of judgment, why is that a waiver?

[00:16:57] Speaker 03:
I mean, isn't it, in fact, quite a...

[00:17:02] Speaker 03:
a method to be encouraged when the party recognizes that it cannot currently win in the district court.

[00:17:11] Speaker 03:
There's no point in papering the issue in the district court because the district court is bound by governing precedent and we just need to go north where we might be able to get the bad precedent overturned.

[00:17:25] Speaker 04:
So to answer that question in two ways.

[00:17:28] Speaker 04:
The first is this court has a body of precedent regarding what constitutes a waiver.

[00:17:34] Speaker 04:
And not fully articulating an argument, referring to it only in passing, this court is regularly described as a waiver.

[00:17:43] Speaker 04:
Number two, and this is, I think, a policy argument, neither this court nor any other court of appeals, including the Supreme Court, I think, would welcome a situation in which a party says to the

[00:17:56] Speaker 04:
court immediately below.

[00:18:11] Speaker 02:
So let me take this up to them and argue to them why their precedent is wrong.

[00:18:16] Speaker 02:
So the district court was without power to give him the relief he sought.

[00:18:20] Speaker 02:
The futility exception has always been an exception to waiver.

[00:18:23] Speaker 02:
And we've consistently held things not waived when it would have been futile to bring them below.

[00:18:27] Speaker 02:
And that's when it's not even mentioned.

[00:18:30] Speaker 02:
Here, it's both mentioned and futile.

[00:18:33] Speaker 02:
And in fact, the futility is on its face articulated.

[00:18:36] Speaker 02:
Why in the world would that amount to waiver?

[00:18:38] Speaker 04:
Right.

[00:18:39] Speaker 04:
I would submit, Your Honor, that given the arguments that have been made to this Court, many of which

[00:18:46] Speaker 04:
are that the Fresenius decision or the XY decision simply do not apply in this circumstance.

[00:18:53] Speaker 04:
Those arguments could have been made as well to the district court as to this court.

[00:18:57] Speaker 04:
That is, Mr. Pitcock and his client were not arguing below or not arguing here on some of the points at least.

[00:19:06] Speaker 02:
Your point is well taken that to the extent that his arguments are that this panel has the ability to give him relief on the collateral estoppel question,

[00:19:14] Speaker 02:
He waived that below.

[00:19:16] Speaker 02:
Those points are well taken, but not on the larger issue of Fresenius, which is really kind of a difficult precedent and not one that I think our colleagues are unanimous on.

[00:19:30] Speaker 02:
So why do you think his case is moot and that we don't even have a jurisdictional right to review the arguments he is making about Fresenius?

[00:19:42] Speaker 04:
So first, let me address, I think, the central point of Your Honor's question, which is Fresenius and this case.

[00:19:48] Speaker 04:
And I understand there's some disagreement among members of this court about the appropriateness of Fresenius and the boundaries of that decision, at least what they should be.

[00:19:57] Speaker 04:
And at least two members of this panel, I think, joined in a dissent from

[00:20:01] Speaker 04:
petition for rehearing on Bonk in a case recently addressing some of those issues.

[00:20:06] Speaker 04:
There are at least three and maybe more reasons why this case would be a spectacularly bad reason to... But that's not my question.

[00:20:15] Speaker 02:
My question wasn't, you should please address the merits of whether we should take Fresenius in back.

[00:20:21] Speaker 02:
My question to you was, you have argued this court has no jurisdiction to even hear this appeal.

[00:20:27] Speaker 04:
That's correct, Your Honor.

[00:20:28] Speaker 02:
But how can that be when he is making an argument that a portion of our precedent should be overturned?

[00:20:37] Speaker 02:
An argument that he made below.

[00:20:38] Speaker 02:
How can it be we don't have jurisdiction?

[00:20:44] Speaker 04:
Right.

[00:20:44] Speaker 04:
I understand your honest question.

[00:20:46] Speaker 04:
And I think the answer is a very straightforward one, which is we have a situation here in which the patent has been canceled.

[00:20:57] Speaker 04:
And it's a situation in which the patent has been canceled.

[00:20:59] Speaker 04:
And by the way, there was no final judgment from the district court, much less an affirmance of a finding of no invalidity by the Federal Circuit.

[00:21:09] Speaker 04:
So we have the patent canceled.

[00:21:11] Speaker 03:
I'm sorry.

[00:21:12] Speaker 03:
There is a final judgment now.

[00:21:15] Speaker 03:
that just there had not been at the time.

[00:21:17] Speaker 04:
I'm sorry.

[00:21:18] Speaker 04:
Your Honor is exactly correct.

[00:21:19] Speaker 04:
I will try to be more precise.

[00:21:21] Speaker 04:
There was not at the time that the Federal Circuit affirmed the ruling of the PTAB and the IPR that the patent was not invalid.

[00:21:33] Speaker 04:
And the reason was because personal audio had joined in the stay motion to stay the district court action.

[00:21:39] Speaker 04:
Therefore you have a cancelled patent.

[00:21:41] Speaker 04:
The clear holding of Fresenius is when the patent has been cancelled there is no subject matter jurisdiction.

[00:21:50] Speaker 04:
over pending or future lawsuits involving that patent, because the patent doesn't exist.

[00:21:57] Speaker 03:
Now personally, I don't care whether... I mean, I get how you can read the language, the sentence that says it is moot in that way, but that

[00:22:09] Speaker 03:
would be a surprising and odd reading.

[00:22:13] Speaker 03:
The fact is that was the bottom line conclusion after the panel in Fresenius went through an extended analysis to come to the conclusion that Supreme Court law and whatnot required

[00:22:29] Speaker 03:
the end of the assertion of the patent cause of action once the patent was – had been declared invalid.

[00:22:37] Speaker 03:
So it was a kind of conclusion.

[00:22:38] Speaker 03:
And it didn't say we dismiss the appeal for lack of jurisdiction.

[00:22:42] Speaker 03:
It affirmed the district court's dismissal.

[00:22:48] Speaker 03:
So that seems more of a seizing on a word that sometimes, like the word jurisdiction, has somewhat loose uses.

[00:23:00] Speaker 04:
I have perhaps, in arguing this point, been treating the question as if I were answering a question on a law school exam.

[00:23:08] Speaker 04:
As an advocate, I am entirely indifferent as to whether this court dismisses the appeal for lack of subject matter jurisdiction or affirms on one of the multitudinous grounds.

[00:23:22] Speaker 04:
In terms of federal courts issues,

[00:23:26] Speaker 04:
If the patent no longer exists, I'm not sure how there is subject matter jurisdiction.

[00:23:31] Speaker 04:
But I acknowledge your honor's point.

[00:23:32] Speaker 04:
And I think it would be perfectly appropriate for this court to address the issue on the merits and simply affirm.

[00:23:37] Speaker 02:
And if you are correct about the subject matter jurisdiction question, then we would never, once a panel has ruled there's no subject matter jurisdiction, according to you, this court would never, ever, ever have any vehicle or ability to reconsider that.

[00:23:56] Speaker 04:
to reconsider which question.

[00:23:58] Speaker 02:
Whether we were correct.

[00:24:00] Speaker 04:
To reconsider the underlying Fresenius question.

[00:24:06] Speaker 02:
You will have made the panel decision ultimate and binding and impenetrable, unreviewable.

[00:24:13] Speaker 02:
That can't be the case.

[00:24:14] Speaker 02:
But anyway, your point is well taken.

[00:24:20] Speaker 04:
I simply want to answer one question that Judge Moore had posed to Mr. Pitcock.

[00:24:25] Speaker 04:
The particular case that Mr. Pitcock had cited was not cited in his opening brief, and I do not believe it was cited to the district court.

[00:24:31] Speaker 03:
This is Duralast.

[00:24:31] Speaker 04:
Duralast.

[00:24:33] Speaker 04:
And I would also direct the court to appendix sites 674 and 675, which was personal audio's opposition to the motion for entry of judgment.

[00:24:43] Speaker 04:
and the determination that CBS is entitled to statutory costs.

[00:24:47] Speaker 04:
The entire substantive argument with respect to the opposition to the entry of judgment is one paragraph.

[00:24:54] Speaker 04:
Duralast is not cited.

[00:24:56] Speaker 04:
Unless the court has further questions, I'm prepared to waive the rest of my time.

[00:25:05] Speaker 01:
OK.

[00:25:07] Speaker 01:
Thank you, Your Honor.

[00:25:09] Speaker 01:
Mr. Pickock, we're going to restore you to four minutes.

[00:25:12] Speaker 00:
Thank you, Your Honor.

[00:25:15] Speaker 00:
So in coming back to this point on whether you cite Dura last or not, we always raise the argument, and in fact, I don't think there's any doubt that we raise this argument.

[00:25:29] Speaker 00:
There is a question of when is it appropriate to raise an argument

[00:25:33] Speaker 00:
on the Seventh Amendment on a jury verdict.

[00:25:37] Speaker 00:
Is it really during the appeal of the IPR, or does it, or do we even have standing to raise those issues?

[00:25:44] Speaker 00:
When we tried to raise those issues with the Federal Circuit on the IPR appeal, they were ignored.

[00:25:51] Speaker 00:
There was actually no ruling on any of the constitutional issues, and one could argue that they were... Your case was affirmed.

[00:25:59] Speaker 02:
No, the case was affirmed.

[00:26:00] Speaker 02:
So you made arguments claiming there was a Seventh Amendment violation and the court affirmed the judgment below.

[00:26:07] Speaker 02:
What makes you think that that constitutes no ruling?

[00:26:12] Speaker 00:
I'm sorry, Your Honor, they didn't address the Seventh Amendment argument.

[00:26:17] Speaker 00:
There was nothing in the ruling that said, no, this is fine.

[00:26:21] Speaker 00:
There was nothing that addressed the Seventh Amendment at all.

[00:26:24] Speaker 00:
And there's some question in these dual proceedings.

[00:26:26] Speaker 02:
Could they have affirmed if they believe you were correct about the Seventh Amendment?

[00:26:31] Speaker 00:
I believe they could have if they thought that there wasn't standing to raise a Seventh Amendment issue on a jury verdict when that record wasn't in front of the court.

[00:26:41] Speaker 00:
I believe they could have.

[00:26:42] Speaker 00:
I think they could have said, yes, this IPR appeal is affirmed, but not address the Seventh Amendment issue.

[00:26:51] Speaker 02:
To be clear, the Seventh Amendment issue you argued in the appeal from the IPR was that you had a Seventh Amendment right to a jury trial that prohibited the PTO board from assessing validity.

[00:27:02] Speaker 02:
It was not this reexamination point that you're now making.

[00:27:05] Speaker 00:
Actually, I don't believe that's correct because we had the prior jury verdict.

[00:27:12] Speaker 00:
I believe that we tried to raise both, Your Honor.

[00:27:16] Speaker 00:
Obviously, oil states addressed the one but has not addressed the other when it comes to the reexamination clause.

[00:27:25] Speaker 00:
And that's what I'm saying is this is not an issue that

[00:27:28] Speaker 00:
is clear that you can raise from the appeal of the IPR because nothing has happened yet.

[00:27:36] Speaker 00:
The court hadn't entered judgment against us.

[00:27:39] Speaker 00:
There had been no negative ruling against the jury verdict at that time.

[00:27:45] Speaker 00:
But we did believe we needed to take these issues up on appeal

[00:27:50] Speaker 00:
That's what I'm trying to do here now.

[00:27:53] Speaker 00:
This argument on DuraLast, yes, we did not make that specific case argument, but we did make the argument, and always have, that you can't use something that occurs after the fact to do away with the jury verdict.

[00:28:09] Speaker 00:
And whether it went to final judgment or one of the other issues that has been addressed, that's not what I'm arguing.

[00:28:16] Speaker 00:
I'm not arguing about the finality of judgments.

[00:28:19] Speaker 00:
Lots of times, the judgments are kept from being made final anyway.

[00:28:22] Speaker 00:
The Seventh Amendment applies at the point where there's a jury verdict on the issue, and it can only be based on the things that have occurred prior to that verdict.

[00:28:32] Speaker 00:
You can't reach back in time or you can't wait

[00:28:35] Speaker 00:
months later and then attack it that way because there was nothing at the common law at the time of the Seventh Amendment that would allow a later administrative attack on a jury verdict.

[00:28:47] Speaker 00:
And these arguments were raised even if that specific case site was not.

[00:28:55] Speaker 01:
Okay.

[00:28:55] Speaker 01:
We thank you for your argument.

[00:28:57] Speaker 01:
Thank you, Your Honor.