[00:00:29] Speaker 03:
Okay, the next case before the court is, I love the name of this case, Taser versus Faser.

[00:00:35] Speaker 03:
Taser International versus Faser Electronic Inc.

[00:00:40] Speaker 03:
I want to address a question first.

[00:00:42] Speaker 03:
There is a pending motion that was filed on

[00:00:48] Speaker 03:
the third of this month, so on July 3rd, from Mr. Abboud personally seeking to stay the contempt order below pending appeal here.

[00:01:00] Speaker 03:
That same motion was filed back in October of last year and was denied.

[00:01:04] Speaker 03:
The court has reviewed the motion and we deny it for the same reasons as it was denied by the motions panel, most importantly because

[00:01:15] Speaker 03:
There was no monetary sanction entered against Mr. Abboud, and he therefore has no standing to appeal.

[00:01:21] Speaker 03:
And so we will deny that motion so that that technical problem, that technicality is taken care of before we start this argument.

[00:01:33] Speaker 03:
And I note that Mr. Abboud is not here.

[00:01:35] Speaker 03:
I was going to tell him he couldn't argue, but we don't need to address that issue.

[00:01:39] Speaker 03:
All right, but there are people who can argue.

[00:01:42] Speaker 03:
So, Mr. Davidell, did I answer correctly?

[00:01:45] Speaker 03:
Yes, Your Honor.

[00:01:46] Speaker 03:
Okay.

[00:01:47] Speaker 03:
And you want two minutes for rebuttal?

[00:01:48] Speaker 03:
That's all, Your Honor.

[00:01:49] Speaker 03:
Okay.

[00:01:50] Speaker 03:
Thank you.

[00:01:50] Speaker 03:
You can begin.

[00:01:51] Speaker 02:
May I please report?

[00:01:53] Speaker 02:
What's the current status of the 262 re-examination?

[00:01:57] Speaker 02:
Where is it?

[00:01:58] Speaker 04:
I believe that it's been denied and I think appeal has been filed, but I don't know where the status of that appeal is.

[00:02:06] Speaker 04:
So it was denied by the PTO.

[00:02:07] Speaker 02:
You say it's appealed, it's pending before the Patent Board.

[00:02:09] Speaker 02:
Correct, Your Honor.

[00:02:10] Speaker 02:
Correct.

[00:02:11] Speaker 02:
You don't know what stage of the briefing it's at.

[00:02:13] Speaker 04:
I do not.

[00:02:14] Speaker 04:
But I know that I believe an appeal was filed.

[00:02:17] Speaker 04:
By the Patent Board.

[00:02:18] Speaker 04:
Yes.

[00:02:19] Speaker 04:
But it's not filed here?

[00:02:21] Speaker 04:
Not here, before the Administrative Office, PTA.

[00:02:26] Speaker 04:
The issue, I guess right here, if I can get to it, we had four points.

[00:02:30] Speaker 04:
I'd really like to try to address two and three if I can with my time, which relate to the damages order.

[00:02:35] Speaker 04:
And then point four is to the contempt order.

[00:02:38] Speaker 04:
And as it would relate to the damages order, essentially what this came down to was we had a default sanctions and a default, which we were before this court on another appeal.

[00:02:50] Speaker 04:
During the pendency of that appeal, a damages order was entered.

[00:02:55] Speaker 04:
That relates to point one, which we can get to on the jurisdictional issue, but I'd like to focus on at least the content of this damages order as it relates to rule 55, really subsection C. And the court under that says may, under 55, conduct hearings in order to effectuate the judgment.

[00:03:14] Speaker 04:
And it needs to conduct an accounting, determine damages, establish truth of allegations or evidence,

[00:03:20] Speaker 04:
and investigate any other matter.

[00:03:23] Speaker 04:
And so essentially what we had from the court when we look at this order is really a misapplication.

[00:03:29] Speaker 04:
The court states in plain terms that it's not reading 55 to engage in the judicial labor necessary to sustain a proper damages order.

[00:03:40] Speaker 04:
The court states it was wrong.

[00:03:42] Speaker 03:
You're not appealing the calculation of damages, are you?

[00:03:45] Speaker 04:
Well, I'm appealing that damages order in total because there was nothing done as far as the judicial labor necessary under 55 to make a determination.

[00:03:54] Speaker 03:
So you're saying the court had no authority to enter a damages order without conducting a hearing?

[00:04:00] Speaker 04:
Correct, based upon the amended complaint and the nature of the amended complaint.

[00:04:04] Speaker 04:
And we can get into some of the things stated in the amended complaint, which state upon information and belief.

[00:04:10] Speaker 04:
And so what the court says here in its order, it states, it was robbed of the opportunity.

[00:04:14] Speaker 03:
But you're trying to re-litigate the merits of the default judgment.

[00:04:18] Speaker 04:
No, sir, I'm not, Your Honor.

[00:04:20] Speaker 04:
And I don't think that's it at all.

[00:04:21] Speaker 04:
So the concept of the determination to state that we're trying to relitigate the merits of the default order is not it.

[00:04:27] Speaker 04:
The purpose of 55C is to protect the sanctity of the court, to not permit for, when there's a default, and let's call it what it is because the court upheld it, a sanction against my client for conduct and litigation.

[00:04:39] Speaker 04:
That sanction does not permit for the court to now create something of law that is otherwise illegal, unsustainable.

[00:04:48] Speaker 03:
The sanction was a default judgment, which we affirmed.

[00:04:51] Speaker 03:
Correct, Your Honor.

[00:04:51] Speaker 03:
and that default judgment allows a calculation of damages, correct?

[00:04:59] Speaker 04:
The sanctions, so the sanctions judgment would necessarily get to that point.

[00:05:03] Speaker 04:
That's the jurisdictional argument within the first section, regardless it was on appeal.

[00:05:08] Speaker 04:
then based upon the default judgment, the court now has to make a determination as to what or how to apply those.

[00:05:16] Speaker 04:
What the number is, right?

[00:05:17] Speaker 04:
And how.

[00:05:18] Speaker 04:
Because we're dealing with two different things.

[00:05:20] Speaker 04:
So the court has stated what Your Honor has stated.

[00:05:22] Speaker 04:
We're attempting to relitigate something.

[00:05:24] Speaker 04:
And so we're not attempting to relitigate it.

[00:05:27] Speaker 04:
What we're saying is, which relates to point four, which is this contempt order.

[00:05:30] Speaker 03:
But the default judgment

[00:05:32] Speaker 03:
then find you in default and found that there was, in fact, infringement, right?

[00:05:40] Speaker 04:
Correct.

[00:05:41] Speaker 04:
And so what I try to point out, Your Honor, is that whether the default is entered as a matter of sanctions or the default is entered as a matter of failing to plead, a default is a default.

[00:05:52] Speaker 04:
Now we have to determine from that default

[00:05:55] Speaker 04:
on what are we going to impose damages.

[00:05:58] Speaker 04:
We don't just take the complaint and say... Yes, you do.

[00:06:02] Speaker 03:
I mean, I don't understand that.

[00:06:05] Speaker 03:
You do have to determine what the dollar figure is, which I don't understand you to have disputed.

[00:06:11] Speaker 03:
But your argument that the court couldn't enter damages with respect to some of the products identified in the complaint ignores the fact that the default judgment said by default you have infringed with these products these particular claims.

[00:06:33] Speaker 04:
And respectfully, Your Honor, I would disagree because of the Ryan case and the Thompson case, which was cited within the Ryan case.

[00:06:41] Speaker 04:
The Ryan case says the court must determine the well-pled allegations that support the relief.

[00:06:46] Speaker 04:
So even upon a default, if the allegation is not well-pled, it doesn't provide for relief.

[00:06:52] Speaker 04:
You could provide for sanctions.

[00:06:54] Speaker 04:
Sanctions can be different than the relief in the complaint.

[00:06:57] Speaker 04:
So the court could say, I impose sanctions against you for the violation of your behavior.

[00:07:02] Speaker 04:
The court cannot say, because of the sanctions, I'm going to allow this to be valid patent when it isn't.

[00:07:11] Speaker 04:
There is no rule that permits for that type of sanction.

[00:07:14] Speaker 04:
And in fact, the Thompson case says the opposite.

[00:07:17] Speaker 03:
I don't understand what you're talking about.

[00:07:18] Speaker 03:
A default judgment.

[00:07:20] Speaker 03:
On a default judgment, if the pleading says this is a valid patent and it's infringed by these two products and the court enters judgment, that's the end of the liability inquiry.

[00:07:37] Speaker 04:
Not entirely, Your Honor, no.

[00:07:40] Speaker 04:
And respectfully, I disagree, because if the complaint states it, and just because the default is entered, the damages that stem from that default still are required to undergo.

[00:07:51] Speaker 03:
The dollar figures that stem from that default.

[00:07:53] Speaker 04:
Well, that's one item under 55C, Your Honor.

[00:07:56] Speaker 04:
You're talking about conducting an accounting, number two, determining damages.

[00:07:59] Speaker 04:
But there's also three and four under 55C that we can't just overlook.

[00:08:03] Speaker 04:
We can't just say, establish truth of the allegation or the evidence.

[00:08:06] Speaker 04:
So if we could say, oh, you could determine damages, well, let's just brush your side determining the truth or allegations of the evidence, and second, investigate any other matter.

[00:08:15] Speaker 02:
I thought the sanctions order basically announced and proclaimed that your client is hereby found to have infringed with its enforcer taser-like product.

[00:08:31] Speaker 02:
And so all that was left now was to do an accounting of,

[00:08:35] Speaker 02:
how many infringing enforcer products you had sold, and then figure out what the damages are from that.

[00:08:43] Speaker 04:
And what I believe your honors just stated as far as, let's call it a restatement of that sanctions order, the first order.

[00:08:49] Speaker 04:
Which we affirmed already.

[00:08:50] Speaker 02:
Correct.

[00:08:51] Speaker 02:
A year ago.

[00:08:52] Speaker 04:
Correct.

[00:08:52] Speaker 02:
So now that's over.

[00:08:54] Speaker 02:
I don't know what's left to try to figure out what more needed to be done for the damages order and just calculate up all the infringing enforcer products.

[00:09:07] Speaker 04:
Well, I think what Your Honor has just said, and that gets to point four on the contempt, is that, well, all them.

[00:09:13] Speaker 02:
So all them meaning... I guess that's what I'm trying to figure out, which is your argument is kind of the same theme that runs through a few different points, and your theme is that, oh, when

[00:09:25] Speaker 02:
The judge said enforcer products, we didn't know which enforcer products.

[00:09:31] Speaker 02:
It could have been this kind of enforcer product or that kind of enforcer product.

[00:09:35] Speaker 02:
And the district court, in its damages order, said it's all enforcer products.

[00:09:40] Speaker 02:
There was no limitation to one type of enforcer product over another, and that's why

[00:09:47] Speaker 02:
the judge held you in contempt when you went ahead and kept selling the subcategory of importer products after the injunction order was issued.

[00:09:57] Speaker 04:
And if I could maybe point the court's attention to review the E-plus case, because I think the E-plus case in some respects provides some support as to what I'm suggesting to the court in various sections.

[00:10:08] Speaker 04:
And essentially, this was vacating a permanent injunction after the PTO canceled.

[00:10:13] Speaker 04:
And so what I'm trying to get to is, Your Honor asked me at the outset what's going on in the PTO.

[00:10:18] Speaker 04:
Let's set that aside.

[00:10:19] Speaker 04:
That stems, the whole purpose of that stems from not protecting phaser, not protecting a defaulting litigant.

[00:10:27] Speaker 04:
It protects the court from engaging in permitting for something to sanction that is otherwise not sanctionable.

[00:10:34] Speaker 04:
And so essentially, I understand that the court said, you're sanctioned as your honor said, but you beg the call of the question.

[00:10:40] Speaker 04:
What phasers?

[00:10:41] Speaker 04:
What phaser pistols?

[00:10:42] Speaker 04:
Because as we get to... The enforcer phaser pistols.

[00:10:46] Speaker 04:
But then there's Claim 13, and Claim 13 has very specific portions, and the enforcer pistols, if it doesn't have a data port, it's not under Claim 13.

[00:10:54] Speaker 02:
The problem for you, I think, is that we're now living with the orders.

[00:10:59] Speaker 02:
that have been appealed and have been affirmed.

[00:11:02] Speaker 02:
So that's it.

[00:11:04] Speaker 02:
We're no longer exploring the meaning of various limitations of Claim 13.

[00:11:10] Speaker 02:
Now we're trying to look at, on its face, is the order clear?

[00:11:15] Speaker 02:
And I think there's a pretty strong argument that it is clear, that we aren't left to decide which enforcer products of phasers is part of the order.

[00:11:26] Speaker 02:
It's all of them, because there's no restriction on the types of enforcers that you're selling that have been enjoined.

[00:11:35] Speaker 02:
And would that not then be overbroad?

[00:11:40] Speaker 02:
I don't know.

[00:11:41] Speaker 01:
You promised that you have a default judgment against you, and you just don't want to accept it.

[00:11:45] Speaker 01:
I mean, the liability part of this is over.

[00:11:49] Speaker 01:
It's done.

[00:11:51] Speaker 01:
You have a default judgment against you.

[00:11:53] Speaker 01:
I understand, Your Honor.

[00:11:54] Speaker 01:
You want us to go back and reopen this up and revisit the merits of the case.

[00:11:58] Speaker 04:
No, Your Honor, that's not what I'm asking at all.

[00:12:00] Speaker 01:
In fact... Well, it certainly sounds like that's what you're seeking.

[00:12:02] Speaker 04:
No, certainly not, Your Honor.

[00:12:03] Speaker 04:
In fact, what I am asking...

[00:12:06] Speaker 04:
is that if there is something that is sustainable within the complaint, as a matter of law, and damages can be assessed against it, that that's what damages be assessed against.

[00:12:17] Speaker 04:
If it's not sustainable, then it's inappropriate under 55C.

[00:12:20] Speaker 04:
And Your Honor, I agree with you that I'm asking the Court to engage in further judicial labor, because 55C, as well as Ryan and the other cases require it.

[00:12:29] Speaker 01:
It's not going to happen if you have a default judgment against it.

[00:12:33] Speaker 01:
You don't get there until you have the default, Your Honor.

[00:12:35] Speaker 03:
You're saying 55C assumes that the default didn't happen and that all liability can be reassessed?

[00:12:42] Speaker 04:
Absolutely not, Your Honor.

[00:12:43] Speaker 04:
What I'm saying under 55C is it protects... And you're actually saying 552C.

[00:12:47] Speaker 04:
2C, I apologize, 2C.

[00:12:50] Speaker 04:
Yes, Your Honor.

[00:12:51] Speaker 04:
And what it protects, and there was a quote from another case that I thought was of value.

[00:12:59] Speaker 04:
It protects the court from engaging in becoming an arm, essentially, from an otherwise not well-plead complaint as a result of a default, becoming an arm of enforcing something that's otherwise not enforceable as a matter of law as a result of a sanction of default, whether you answered or didn't answer.

[00:13:16] Speaker 04:
And that's why the court

[00:13:17] Speaker 04:
has the power and always has had the power not only to engage in further judicial labor to determine what is appropriate in that complaint despite the default, but what is appropriate and then appropriate as far as the damages go and further exacerbated by the fact that here we're dealing with validity of patents, which is strictly a matter of law.

[00:13:36] Speaker 04:
And so there's no case that ever says that the conclusions of law on the complaint are always founded.

[00:13:41] Speaker 04:
They aren't.

[00:13:42] Speaker 04:
The conclusions of law the court does not have to accept even upon a default.

[00:13:46] Speaker 04:
Validity is a conclusion of law.

[00:13:48] Speaker 04:
So I'm not arguing to this court to say that I'm now saying that Faser or another defaulting litigant, even through sanctions.

[00:13:57] Speaker 04:
should have the right or have another bite at the apple.

[00:14:00] Speaker 04:
Not what I'm saying.

[00:14:00] Speaker 04:
What I'm saying is the whole purpose of 55C and the case law cited in our briefs is that it protects the judicial process.

[00:14:08] Speaker 04:
It does not permit for the court to become an arm.

[00:14:11] Speaker 03:
And I think what we could see from this case was- So you're saying that by protecting the judicial process, the court has to start over.

[00:14:19] Speaker 03:
No.

[00:14:19] Speaker 03:
This default essentially is meaningless except, I mean, because you're saying that he's got to undertake a full hearing on validity

[00:14:27] Speaker 03:
on which products infringe and on damages, right?

[00:14:33] Speaker 04:
I think the damage is somewhat easily calculatable.

[00:14:36] Speaker 04:
I think the issue is on validity, essentially relating to what was claimed in the complaint versus what's being defaulted.

[00:14:44] Speaker 04:
So since there are no answers, there is no defenses.

[00:14:47] Speaker 04:
The defenses are not defenses to the judgment.

[00:14:50] Speaker 04:
The judgment is present.

[00:14:52] Speaker 04:
The defenses are simply to

[00:14:54] Speaker 04:
What is this appropriate amount of that judgment?

[00:14:57] Speaker 04:
And if there are further sanctions necessary, those sanctions don't necessarily have to stem from the face of the complaint.

[00:15:04] Speaker 02:
The sanctions can be anything.

[00:15:06] Speaker 02:
What was it that the district court, in your view, should have done that it did not do?

[00:15:10] Speaker 02:
Specifically, what should it have done?

[00:15:12] Speaker 02:
What action did it need to take?

[00:15:14] Speaker 04:
Well, specifically, I think the court, one, would have needed to determine what phasers, as Your Honor has said, all phasers, is brought.

[00:15:21] Speaker 04:
what phasers are violating under this this order whether That there was a valid patent because it was raised Stating to the court because we know from the e-plus case in the other cases if the patents invalid you can't impose sanctions for you the judge could not move forward on calculating damages until it did a validity determination and

[00:15:43] Speaker 04:
I would suggest to the court that if the validity determination was not done, then essentially what we've permitted for is just a sanctioning at any time, and you could skip validity.

[00:15:54] Speaker 03:
Okay, so let me give you a hypothetical.

[00:15:56] Speaker 03:
So I file a lawsuit and I say that, you know, and I make allegations regarding the fact that you hit me with your car and you caused personal injury.

[00:16:10] Speaker 03:
All right?

[00:16:11] Speaker 03:
Default judgment centered.

[00:16:13] Speaker 03:
Do you believe that you could then re-litigate the question of whether you actually hit me with the car?

[00:16:22] Speaker 04:
The hitting with the car, if stated in that manner, I could not disagree with.

[00:16:28] Speaker 04:
However, if you said upon information and belief, as Taser did,

[00:16:34] Speaker 04:
you hit me with the car, then yes, because now it's an unfounded allegation.

[00:16:39] Speaker 04:
There has to be a determination made upon what information and belief.

[00:16:45] Speaker 04:
And there's a recitation within that complaint upon information and belief.

[00:16:50] Speaker 04:
And it goes on and on and on.

[00:16:51] Speaker 02:
So essentially... So then the default judgment doesn't count?

[00:16:55] Speaker 02:
Oh, no, it counts.

[00:16:57] Speaker 02:
How?

[00:16:57] Speaker 02:
You were re-mitigating the very facts that there was a default judgment granted on.

[00:17:02] Speaker 04:
No, there's still a default judgment in place.

[00:17:04] Speaker 04:
I'm not getting around that.

[00:17:06] Speaker 04:
There is no question there.

[00:17:07] Speaker 04:
The question then becomes what is the effect of the default judgment.

[00:17:11] Speaker 04:
Okay.

[00:17:12] Speaker 03:
You're out of time.

[00:17:13] Speaker 03:
I'll give you one minute for rebuttal.

[00:17:14] Speaker 04:
Thank you, Your Honor.

[00:17:24] Speaker 00:
Can you please support?

[00:17:26] Speaker 00:
Getting directly to your question, Judge Chen, about the status of the appeal in the PTO on the re-exam, it is still pending.

[00:17:35] Speaker 00:
Nothing has changed.

[00:17:36] Speaker 00:
The appeal has been fully briefed.

[00:17:39] Speaker 00:
It is awaiting a setting of oral argument.

[00:17:41] Speaker 00:
So that's the current status of that.

[00:17:43] Speaker 00:
Is it ex parte or inter parte?

[00:17:44] Speaker 00:
It's an ex parte.

[00:17:46] Speaker 00:
Well, the re-exam was ex parte, but we then filed an appeal.

[00:17:52] Speaker 02:
I'm sorry.

[00:17:54] Speaker 02:
It was an ex parte re-exam?

[00:17:56] Speaker 02:
Yes.

[00:17:57] Speaker 02:
And then, I see.

[00:17:59] Speaker 02:
Okay.

[00:18:00] Speaker 02:
And then it was an adverse rejection by the examiner.

[00:18:04] Speaker 02:
You represent the patent earner.

[00:18:06] Speaker 02:
You're appealing that to the board.

[00:18:07] Speaker 03:
Correct.

[00:18:08] Speaker 02:
Okay.

[00:18:09] Speaker 03:
Okay.

[00:18:09] Speaker 03:
So what do you think

[00:18:13] Speaker 00:
Well, rule 55 is not mandatory with the court.

[00:18:20] Speaker 00:
It is discretionary.

[00:18:22] Speaker 00:
And critically here, Fazer never requested the district court to hold a rule 55 hearing.

[00:18:29] Speaker 00:
And in the prior appeal in this matter,

[00:18:32] Speaker 00:
where they should have appropriately raised that issue if they were going to raise it at all, because it really goes to what's the scope of the injunction.

[00:18:42] Speaker 00:
And they didn't do so until the reply brief.

[00:18:46] Speaker 00:
And this issue was discussed significantly at the prior oral argument in the first appeal, and this court said,

[00:18:52] Speaker 00:
It's not in the blue brief.

[00:18:54] Speaker 00:
You've waived it.

[00:18:56] Speaker 00:
And so they've certainly, if they've waived it in the prior appeal, they've waived it here.

[00:18:59] Speaker 00:
And as I said before, as this court also talked about in the first oral argument, they never requested it in the district court.

[00:19:06] Speaker 00:
So I don't think Rule 55 is really applicable here at all.

[00:19:10] Speaker 03:
Well, their argument would be, I'm sure he's going to say in his one minute of rebuttal, is that we may have waived it as to the scope of the injunction, but we didn't waive it as to measurable damages.

[00:19:21] Speaker 03:
As to measurable damages would be your response to that.

[00:19:26] Speaker 00:
Well the the prior.

[00:19:31] Speaker 00:
injunction and default order that this court has affirmed already awarded damages.

[00:19:38] Speaker 00:
And as noted in that decision, that was not appealed in the first appeal.

[00:19:43] Speaker 00:
And so only the accounting was left.

[00:19:46] Speaker 00:
And so on the damages order here, it should be strictly limited to those accounting questions, which as Your Honor has pointed out, they've not challenged at all on appeal.

[00:19:56] Speaker 00:
There is absolutely no challenge to the court's factual findings.

[00:20:01] Speaker 00:
relating to those.

[00:20:02] Speaker 00:
Instead, what FASER is doing is going back and trying to attack the underlying judgment, which has been affirmed, and so that is foreclosed here.

[00:20:14] Speaker 00:
They are really talking about the scope of the injunction, and I think it's important to

[00:20:19] Speaker 00:
To point out here going back to his arguments relating to the amended complaint and well-pleaded facts in the complaint the amended complaint expressly alleged that phaser enforcer CEWs include non-volatile memory that stores firing data and that that data includes the required date and time

[00:20:41] Speaker 00:
stamps for the trigger operation of the weapon and that that infringes claim 13.

[00:20:47] Speaker 00:
And so that is a well pleaded fact that was accepted by the court as true on default and the complaint also specifically asked for a declaration that the phaser enforcer CEW is within the claims, the scope of the claims of the 262 patent and the court in fact found that in the injunction order then and said the district court expressly finds

[00:21:10] Speaker 00:
that the phaser enforcer CEW violates claims 13 of the 262 patent.

[00:21:14] Speaker 00:
So they're really trying to reopen that here.

[00:21:17] Speaker 00:
I think it's important to note that claim 13 of the patent says absolutely nothing about a data port.

[00:21:23] Speaker 00:
That word is nowhere found in the claim or in the patent.

[00:21:26] Speaker 00:
This is really a manufactured

[00:21:28] Speaker 00:
issue after the fact.

[00:21:31] Speaker 00:
What the claim 13 requires is a microprocessor that's simply programmed to track date and time of this electrical stimulus from the weapon.

[00:21:43] Speaker 00:
There's no data port requirement there whatsoever.

[00:21:48] Speaker 00:
The court is specifically found at the contempt hearing and on the damages order as well that there's no ambiguity here in the court's injunction order.

[00:22:01] Speaker 00:
enjoins the phaser enforcer CEW as the court said, period, full stop, without distinction.

[00:22:10] Speaker 00:
And as Mr. Kirk French testified at the contempt hearing, he's the purported owner of phaser electronics, that this was something that was never distinguished

[00:22:20] Speaker 00:
at all during the course of the litigation.

[00:22:23] Speaker 00:
They never produced any technical documents.

[00:22:26] Speaker 00:
They never attended depositions.

[00:22:28] Speaker 00:
They didn't attend the court ordered technology tutorial conference in which these weapons were examined, deployed,

[00:22:38] Speaker 00:
disassembled in everything for the court's edification.

[00:22:41] Speaker 00:
And so they have never before the sanctions order ever challenged that there was an enforcer CEW that in fact had some kind of different functionality.

[00:22:52] Speaker 00:
And when you look at the attachments to the complaint, which include the manuals that are available online, various

[00:23:00] Speaker 00:
snapshots and things from their technical specifications and from the website, never was there any distinction that somehow a weapon of the same name had some kind of different functionality, which quite frankly is really absurd in the context of law enforcement sales, which is the target audience here, because law enforcement agencies require as a specification that you have to have

[00:23:24] Speaker 00:
this time stamp recording of the weapon so that they can both protect themselves for excessive use of force type claims and also so that they can hold their officers accountable.

[00:23:38] Speaker 00:
And so there never was a distinction.

[00:23:42] Speaker 00:
The court appropriately said you're trying to

[00:23:45] Speaker 00:
open the merits of this, which has been concluded on default, and I'm not going to consider it.

[00:23:50] Speaker 00:
And you don't get to, on contempt, you don't get to unilaterally, without ever filing a motion to clarify or modify the injunction, violate it, and then come in here later and contend that somehow their scope is different.

[00:24:04] Speaker 00:
This court in the TiVo decision specifically talks about that the time to address

[00:24:12] Speaker 00:
these issues is at the time of the direct appeal of the injunction, which has passed.

[00:24:17] Speaker 00:
They did not raise it there, and so it is waived here.

[00:24:21] Speaker 00:
So unless the court has any further questions, that's really what I've got.

[00:24:25] Speaker 00:
Thank you.

[00:24:30] Speaker 03:
So why isn't this waived by the fact that you didn't raise it the first time around?

[00:24:35] Speaker 04:
I don't think it was waived.

[00:24:37] Speaker 04:
I think it was raised on appeal.

[00:24:39] Speaker 03:
Not Rule 55.

[00:24:40] Speaker 03:
You never said there was some obligation under Rule 55 as it relates to the injunction, the scope of the injunction.

[00:24:48] Speaker 04:
Well, absolutely.

[00:24:49] Speaker 04:
There was a response that was filed to the damages order.

[00:24:53] Speaker 04:
I mean, filing the timely objection to it or timely appeal still preserves the rights.

[00:25:01] Speaker 04:
We filed the timely appeal to the entry of the damages order.

[00:25:04] Speaker 03:
But in the first argument that we had here.

[00:25:06] Speaker 03:
Correct.

[00:25:07] Speaker 03:
Never in your brief on appeal did you argue that the court had some procedural obligation to conduct a hearing or make findings of fact.

[00:25:16] Speaker 04:
I believe we did have that in the brief, but it was inappropriate because the order was entered subsequent to the brief's filing on the sanctions order and was preserved within the argument here, so both for the damages order and the contempt order.

[00:25:32] Speaker 04:
But to get to my one thing I wanted to say too is the Swiftco case that was in the E plus case and they simply said the court does not abdicate its power to remove or modify a mandate if it's satisfied that what it has been doing has been turned through changing circumstances into an instrument of role.

[00:25:52] Speaker 03:
Well the fact that the district court had the right to do that doesn't mean that the district court had an obligation to do that.

[00:25:59] Speaker 04:
Correct depending on the totality of the circumstances your honor I cannot get around the fact that it says may however when you look at the Ryan case you look at the plus case you look at the granny goose case which essentially suggests that the defaulted enjoined defendant has a right to know specifically What this is so it can design around it

[00:26:22] Speaker 04:
So the court processed through an informational and belief complaint.

[00:26:25] Speaker 03:
But wait, Mr. French, your own representative testified that he knew exactly what was covered by the injunction.

[00:26:34] Speaker 04:
Well, the injunction says it covers all phaser enforcers, which don't violate upon information and belief in the complaint, don't violate the informational and belief section.

[00:26:46] Speaker 04:
And I said data port.

[00:26:47] Speaker 04:
I apologize.

[00:26:48] Speaker 04:
It's time and dates there.

[00:26:49] Speaker 01:
It's difficult for me to understand or to believe that you don't understand that a default judgment accepts all allegations that have been pled as true.

[00:27:03] Speaker 01:
Well pled.

[00:27:05] Speaker 04:
all well-planned allegations, Your Honor.

[00:27:08] Speaker 01:
And there are some allegations... You want to argue, and you want to argue whether the allegations were well-planned or not.

[00:27:13] Speaker 04:
Well, I believe there's substantial case law that supports that position because the court should not become a hammer for those that have the ability to exercise the judicial process.

[00:27:24] Speaker 04:
Why didn't you just show up in this case?

[00:27:27] Speaker 04:
I wish I was representing them then, Your Honor.

[00:27:29] Speaker 04:
Things would have been very differently.

[00:27:31] Speaker 02:
They were about to go bankrupt back in the day.

[00:27:33] Speaker 02:
Are they still a going concern?

[00:27:36] Speaker 04:
With the inability to sell any enforcer?

[00:27:38] Speaker 04:
No.

[00:27:39] Speaker 03:
Now if they can sell enforcer.

[00:27:41] Speaker 04:
They still keep appealing things.

[00:27:42] Speaker 03:
They told the district court, we can't show up, we can't answer the complaint, we can't respond to court orders because we're going bankrupt.

[00:27:49] Speaker 04:
bankrupt because of litigation.

[00:28:05] Speaker 04:
OK, pled complaint, smash a minor competitor with discovery.

[00:28:10] Speaker 04:
The minor competitor now can't defend itself.

[00:28:12] Speaker 03:
How could anybody even smash with discovery when he never even answered the complaint or never responded to even the first discovery request?

[00:28:19] Speaker 04:
There was a motion to dismiss, and there were thousands of pages in discovery, Your Honor.

[00:28:24] Speaker 04:
So I have to disagree that there was a motion to dismiss pending at the time that the sanctions were entered, and there was thousands of pages of discovery produced.

[00:28:31] Speaker 04:
So essentially.

[00:28:33] Speaker 04:
You're out of time.

[00:28:34] Speaker 04:
Thank you, Your Honor.

[00:28:35] Speaker 04:
Thank you.