[00:01:07] Speaker 05:
We're ready whenever you are, Mr. Foster.

[00:01:13] Speaker 01:
Your Honor, for you, Lockchains Foster, Brian Tolson, and my firm is here as well.

[00:01:20] Speaker 01:
I don't intend to address the jurisdictional issue unless the Court has questions.

[00:01:25] Speaker 05:
Yeah, I think we do.

[00:01:28] Speaker 05:
I'm a little unclear on the jurisdictional issue.

[00:01:32] Speaker 05:
A lot of these questions apply to your friend on the other side as well.

[00:01:38] Speaker 05:
But with respect to the jurisdictional issue, I'm not even clear I understand your position.

[00:01:46] Speaker 05:
I think one of your answers is you make the case that we have the authority to join, to exercise our appellate jurisdiction by joining a party here.

[00:02:00] Speaker 05:
Is that your response to Apple's concerns about jurisdiction?

[00:02:04] Speaker 01:
Yes, Your Honor.

[00:02:04] Speaker 01:
This same issue came up in the ADP case in which Your Honor sat.

[00:02:10] Speaker 01:
And on May 24th, that issue was decided that you could add your law 2017 to the appeal.

[00:02:16] Speaker 05:
But that wasn't... I've had a lot of these cases, but I don't know.

[00:02:21] Speaker 05:
Was that not having jurisdiction at the time of filing or the time of judgment?

[00:02:25] Speaker 05:
Wasn't it at the time of the appeal?

[00:02:27] Speaker 05:
Wasn't it a different jurisdictional matter?

[00:02:29] Speaker 01:
The only factual difference between the ADP case and here

[00:02:32] Speaker 01:
was at the time that the appeal notice was filed, no one questioned jurisdiction.

[00:02:38] Speaker 01:
What happened was the patent portfolio was transferred after the appeal notice to you in 2017.

[00:02:42] Speaker 05:
Right, so it was different from this case because it didn't have to do with lacking jurisdiction at the time the case was filed or at the time judgment was rendered at the district court.

[00:02:52] Speaker 01:
But there are two reasons why the results should be the same.

[00:02:57] Speaker 01:
The first is that Uniloc USA was a party in the district court and continued to have rights in the patent when the appeal was filed.

[00:03:07] Speaker 01:
Uniloc USA's rights were terminated in November 2018, several months after this appeal was filed.

[00:03:13] Speaker 01:
So there was continuity with respect to Uniloc USA as being a party with standing.

[00:03:20] Speaker 05:
Let me just ask you one further, maybe we'll have follow up on that.

[00:03:25] Speaker 05:
Even if we were to accept that we could assume a pellet jurisdiction by adding a party here, what would you have us do?

[00:03:34] Speaker 05:
What would we have to do?

[00:03:36] Speaker 01:
We've already of course filed a motion to add Unalak 2070 or if the court prefers to substitute.

[00:03:44] Speaker 01:
But that motion has been filed.

[00:03:45] Speaker 05:
And what about the other issue?

[00:03:47] Speaker 05:
I thought the problem though, the jurisdictional problem at the time of filing had to do with fortress credit.

[00:03:56] Speaker 05:
And that seems to me to be something that I don't understand how you would suggest that we remedy that on appeal, right?

[00:04:05] Speaker 01:
Thank you for bringing that up.

[00:04:07] Speaker 01:
That's a complicated issue.

[00:04:08] Speaker 01:
They had raised that issue in the district court.

[00:04:11] Speaker 01:
The district court judge ruled against them on that.

[00:04:14] Speaker 01:
at some point after this appeal in a different case on that particular form.

[00:04:20] Speaker 05:
I was going to ask both of you what the status of that was because I understand they filed for reconsideration.

[00:04:24] Speaker 01:
They moved for reconsideration the district judge is still sitting on that motion hasn't decided it.

[00:04:30] Speaker 05:
Okay, so we don't know what the answer to the question is, and even if he rejects their argument, they could appeal that at some point once the case is filed, once there's final judgment, and we could review that on appeal.

[00:04:47] Speaker 05:
So what are... I'm just asking you to help us out.

[00:04:50] Speaker 05:
What are we to do with this outstanding issue about jurisdiction that involves fortress credit?

[00:04:56] Speaker 05:
So send it back to the district court to have him sorted out.

[00:05:02] Speaker 05:
Join them on appeal.

[00:05:04] Speaker 05:
I think that's what anybody's advocating.

[00:05:06] Speaker 05:
What are we supposed to do about that?

[00:05:08] Speaker 01:
So let me try to sort it out.

[00:05:13] Speaker 01:
Judge Alsop currently has a motion reconsideration.

[00:05:16] Speaker 01:
He's been sitting on it for several months.

[00:05:19] Speaker 01:
If he denies the motion, then the case in which he denied that moves forward.

[00:05:23] Speaker 01:
And maybe a year or two years from now, whoever is the losing party in that case will appeal.

[00:05:28] Speaker 01:
And this court will not have jurisdiction over that issue until that appeal is filed, unless an interlocutory

[00:05:35] Speaker 05:
But don't we, given the case that we have before us, have some obligation to figure that question out?

[00:05:44] Speaker 05:
Because that's a jurisdictional question.

[00:05:48] Speaker 05:
in this case as well, right?

[00:05:50] Speaker 05:
So, again, I'm just asking for help.

[00:05:52] Speaker 05:
I'm not taking sides here, but I just want you to tell us.

[00:05:55] Speaker 04:
What Judge Post is reaching for, and we're all concerned, is can we go ahead and decide, hear your arguments and decide the merits in this case, or are we hung up on jurisdictional questions?

[00:06:09] Speaker 01:
That's what we're trying to figure out.

[00:06:11] Speaker 01:
This brings me to the next option.

[00:06:13] Speaker 01:
Several weeks ago, this court handed down the loan start decision, which somewhat changed this court's jurisprudence on jurisdiction issues.

[00:06:24] Speaker 01:
And in Judge McNally's opinion there, she said, we're going to cabin the jurisdiction issue.

[00:06:31] Speaker 01:
All you have to show to have jurisdiction is that

[00:06:34] Speaker 01:
One of the parties has Article 3 jurisdiction.

[00:06:37] Speaker 01:
All the other questions that have been traditionally treated as jurisdiction will now go to whether the statute applies or not, and that's Rule 19 or 20 question.

[00:06:47] Speaker 01:
So it's not in the briefing because it came up after the briefing, but I recommend you look at the Lone Star opinion on that.

[00:06:55] Speaker 01:
When you do, if you agree with me, the question then as well, did Unalak USA have Article 3 jurisdiction?

[00:07:02] Speaker 01:
That hasn't been briefed either.

[00:07:03] Speaker 01:
You can solicit more briefing on that if you wish.

[00:07:07] Speaker 01:
But that's one way to get rid of the issue quickly at the appellate level without remanding.

[00:07:11] Speaker 02:
But did they have Article III jurisdiction?

[00:07:13] Speaker 02:
I mean, that's the question.

[00:07:14] Speaker 02:
You keep saying it hasn't been briefed, they haven't raised it.

[00:07:16] Speaker 02:
I get all that.

[00:07:17] Speaker 02:
But if it's a jurisdictional issue that affects us, we still have to decide that.

[00:07:23] Speaker 02:
I mean, they can't waive jurisdiction.

[00:07:25] Speaker 02:
We have to affirm it.

[00:07:26] Speaker 02:
So what's the answer on this issue?

[00:07:29] Speaker 01:
They certainly haven't raised every jurisdictional objection they can.

[00:07:35] Speaker 01:
My suggestion with respect to Lone Star, since it's a recent case, that's why it wasn't briefed, I think Lone Star takes the jurisdictional issue out of the case, but you're right, you have to decide it, and you do need briefing on it because it's a recent incident.

[00:07:49] Speaker 02:
Can't you just tell us your answer?

[00:07:51] Speaker 01:
You haven't answered, don't you?

[00:07:54] Speaker 01:
Yes, I thought I had.

[00:07:56] Speaker 01:
And that is that all that Lone Star requires is that one of the parties at the time of appeal, in this case, Uniloc USA, had Article III standing.

[00:08:05] Speaker 01:
Uniloc USA at the time had an exclusive license to enforce the patent, and Uniloc Luxembourg, the other name, was the patent owner.

[00:08:14] Speaker 01:
And that was consistent all the way through.

[00:08:16] Speaker 01:
Uniloc USA did not lose its rights until November

[00:08:20] Speaker 01:
when these issues first came up and all the issues where all the rights were centralized in Unilock 2017.

[00:08:25] Speaker 05:
And does that resolve the fortress credit issue?

[00:08:28] Speaker 05:
Excuse me?

[00:08:29] Speaker 05:
Does that resolve the fortress credit issue about the time of... No, no, that does not... Well, that's what I want you to answer.

[00:08:38] Speaker 02:
That's what is a potential jurisdictional problem.

[00:08:40] Speaker 02:
I get the other stuff that... If we can correct the other stuff on appeal,

[00:08:45] Speaker 02:
But if there was no jurisdiction at the time it was filed, then we can't correct that.

[00:08:53] Speaker 02:
Sorry, I wasn't very clear.

[00:08:55] Speaker 02:
You talked about the motion that's pending in another case before Judge Alsop and all that kind of stuff, but you didn't tell us what your position is there and why it isn't a jurisdictional defect for us in this case.

[00:09:07] Speaker 01:
I'll do that.

[00:09:09] Speaker 01:
And again, you had to bear with me because Lone Star came down after the briefing.

[00:09:14] Speaker 01:
The argument on Fortress in the district court had been Fortress had a security interest in the patents.

[00:09:21] Speaker 01:
And so if there was a default, then Fortress would have, under the documentation, the right to a non-exclusive right to sub-license the patents.

[00:09:30] Speaker 01:
It wasn't a normal license.

[00:09:32] Speaker 01:
It's one of these things for a security interest.

[00:09:35] Speaker 01:
In the Lone Star case, I think if you read all the details there, that would not be sufficient to cause a lack of constitutional standing, Article 3 standing on the part of the patent owner.

[00:09:49] Speaker 01:
So I think you can, if you make the factual assumptions, which Apple asked you to make under Lone Star, there's still no jurisdictional argument.

[00:09:58] Speaker 01:
But procedurally,

[00:10:00] Speaker 01:
Judge, pro suggestion, we send it back to Judge Allison.

[00:10:03] Speaker 01:
I guess you could just avoid it, but as you mentioned, it'll be two years before we see this case again.

[00:10:14] Speaker 05:
All right, well maybe Apple can shed some further light on this.

[00:10:18] Speaker 05:
Why don't you proceed to the merits?

[00:10:20] Speaker 01:
Proceed to the merits?

[00:10:24] Speaker 01:
All right.

[00:10:27] Speaker 01:
My understanding in the electrical and mechanical arts is that there are lots of patents on things like toasters and what have you, mousetraps, and the way it proceeds almost all the time is the patents that are applied for are incremental.

[00:10:41] Speaker 01:
There's some tweak or redesign that some ask for and they go to the patent office and they get a patent.

[00:10:47] Speaker 01:
Until this case, 101 had not moved into that area of electromechanical devices being tweaked and redesigned.

[00:10:56] Speaker 01:
In this case, as you know from the briefing, although the inventors had grand ideas as to what they thought they had invented, what the patent office only gave them was a patent to incremental advance of setting current to zero and a controller when the temperature is above a certain amount.

[00:11:17] Speaker 01:
And I guess Judge Oswood didn't appreciate that.

[00:11:20] Speaker 01:
He attacked the whole concept of relating current to temperature.

[00:11:27] Speaker 01:
And it wasn't clear to me when I wrote the brief whether he was going on a natural law as opposed to abstract ideas.

[00:11:32] Speaker 01:
We briefed it both ways.

[00:11:34] Speaker 01:
But that's not what the claimed advance is in this case.

[00:11:37] Speaker 01:
The claimed advance is this incremental adjustment of setting the current to zero when certain temperatures exceeded.

[00:11:46] Speaker 01:
It does not seem to be in any way an outstretched idea.

[00:11:52] Speaker 01:
When we get to step two of the ALICE analysis, again, there's no evidence in the record that anyone had ever set the temperature to zero when it... set the current to zero when the temperature had exceeded.

[00:12:04] Speaker 01:
So it's not ordinary conventional or generic to do any of that.

[00:12:08] Speaker 01:
And those arguments were all laid out in the brief.

[00:12:10] Speaker 01:
The final point I'll make, since I'm in this courtroom,

[00:12:14] Speaker 01:
In January, the Patent Office came out with guidance as to how they're going to handle these issues.

[00:12:25] Speaker 01:
If this Court is going to move down the road of taking electrical medical patents and applying a 101 to them for tweaks in design,

[00:12:36] Speaker 01:
That is not the course you've done before, but you may want to consider the Patent Office's opinion on that.

[00:12:42] Speaker 01:
I know you don't want to give the deference necessarily, but it's something that you might want to give some thought to in considering the case, or maybe even solicit an amicus brief from the Patent Office on that issue.

[00:13:00] Speaker 05:
I'll open the questions.

[00:13:15] Speaker 00:
May I please you for it?

[00:13:19] Speaker 04:
Your last name is?

[00:13:20] Speaker 00:
Michael Peeja on behalf of the defendant Appellee Apple.

[00:13:24] Speaker 00:
Your Honor, I would like to begin by shedding some light on this jurisdictional issue.

[00:13:29] Speaker 00:
And I want to do two things.

[00:13:30] Speaker 00:
I want to first address Lone Star, and I want to set out exactly what rights these entities actually had at the time of judgment, which we believe gives rise to an Article 3 standing issue both then and at the time of filing.

[00:13:43] Speaker 05:
OK, well, before you get into those details, which certainly will be

[00:13:51] Speaker 05:
On the Unilux 2017 issue, do you agree that we could cure, even if there is a jurisdictional problem, we could cure it here at the appellate level by simply joining?

[00:14:06] Speaker 00:
No.

[00:14:07] Speaker 00:
I don't believe that's possible, Your Honor, and I think here's why.

[00:14:10] Speaker 00:
The problem here is one of Article 3's standing.

[00:14:13] Speaker 00:
That is an issue that's not specific to patent law, so the law of the regional circuit would govern.

[00:14:18] Speaker 00:
The Ninth Circuit has explicitly held, they're the appropriate regional circuit, because we're coming from IndyCal, they have explicitly held that Rule 21 cannot be used to, quote, swap in new plaintiffs

[00:14:30] Speaker 00:
for the sake of securing a judicial determination on the merits when the original planets no longer have a stake in the outcome.

[00:14:37] Speaker 00:
And this is Bain v. California Teachers Union, 891, Fed 3rd, 1206.

[00:14:44] Speaker 00:
It's a 2018 case from the Ninth Circuit.

[00:14:47] Speaker 00:
I apologize that this wasn't in the briefing, but it's responsive to the argument at page 5 of Unalak's merits reply.

[00:14:54] Speaker 05:
Well, I mean, I guess you're right.

[00:14:55] Speaker 05:
It wasn't briefed, but I've got at least one Ninth Circuit case that maybe was in the briefs.

[00:15:02] Speaker 05:
Cal Credit Unionly, you're familiar with that?

[00:15:06] Speaker 05:
And the parenthetical says, allowing the appellate joiner of a plaintiff to retroactively cure a jurisdictional defect.

[00:15:14] Speaker 05:
That's a Ninth Circuit case, right?

[00:15:15] Speaker 05:
Why doesn't that go?

[00:15:16] Speaker 00:
So neither that case nor any of the cases that Uniloc cites involve an Article 3 constitutional lack of standing that existed at the time of judgment.

[00:15:26] Speaker 00:
The cases that they're citing primarily fall into two categories.

[00:15:29] Speaker 00:
One, they have a bunch of diversity jurisdiction cases that just stand for the proposition that where there was a party with standing, but there were other parties that may not have had standing, you can dismiss the non-diverse parties.

[00:15:41] Speaker 00:
That's an issue that's unique to diversity jurisdiction and isn't applicable here.

[00:15:46] Speaker 00:
It's also not what they're trying to do.

[00:15:47] Speaker 00:
And then they have some cases, like the mentor case, and that relates to just what used to be called prudential standing.

[00:15:55] Speaker 00:
I understand that it's a statutory issue now.

[00:15:57] Speaker 00:
But that was a question where you had an exclusive licensee that was present in the case at the time of judgment.

[00:16:05] Speaker 00:
And the question was whether or not the patent owner should have been joined.

[00:16:08] Speaker 00:
The problem that we have here, and that was Lone Star too, by the way.

[00:16:12] Speaker 00:
Lone Star was not an Article 3 case.

[00:16:15] Speaker 00:
They had an exclusive licensee that was bringing Sue.

[00:16:18] Speaker 00:
And the question was, could they proceed in their own name?

[00:16:21] Speaker 00:
And that licensee had exclusionary rights.

[00:16:24] Speaker 00:
That is the key.

[00:16:26] Speaker 00:
The Supreme Court and this court's jurisprudence has noted that the right that is injured by a patent infringement is a right to exclude.

[00:16:35] Speaker 00:
In this case, at the time of judgment in May of 2018, Uniloc USA didn't have that right.

[00:16:43] Speaker 00:
Because at that time what had happened was the original patent owner, well the one at the time of filing, Uniloc Luxembourg, had terminated the exclusive license to Uniloc USA.

[00:16:55] Speaker 00:
It had sold the patent to Uniloc 2017.

[00:16:59] Speaker 00:
Now, Uniloc 2017 had then engaged in another transaction, and the rights it granted to Uniloc USA at that time were far less than Uniloc USA had originally had.

[00:17:11] Speaker 00:
And specifically, the only rights it had

[00:17:15] Speaker 05:
So you're doing fact-finding for us.

[00:17:19] Speaker 05:
What are we supposed to do on appeal?

[00:17:22] Speaker 05:
How do we resolve that on appeal, or are you just saying, no, no, no, no, no, you can't resolve any of this on appeal.

[00:17:27] Speaker 05:
You just have to remand it back to the district court so he can do this fact-finding.

[00:17:31] Speaker 00:
That's exactly right.

[00:17:32] Speaker 02:
This case should be remanded, and that's exactly the procedure that the Supreme Court... But if it goes back and the district court says, okay, I'm adding Uniloc 2017, will that cure the jurisdictional defect?

[00:17:43] Speaker 00:
So there's still, I think, discovery outstanding that would address that issue.

[00:17:47] Speaker 00:
It is possible that it... Well, let me withdraw that, Your Honor.

[00:17:51] Speaker 00:
It would cure the defect at the time of judgment because the judgment that was defective would have been withdrawn.

[00:17:57] Speaker 00:
It would not cure the issue that Your Honor's alluded to on... Well, let's set that aside.

[00:18:04] Speaker 02:
That is very unclear to me what's going on there.

[00:18:07] Speaker 02:
Let's just talk about adding Uniloc 2017 to cure the defect in the time of judgment.

[00:18:12] Speaker 00:
We believe at this time it would, yes, if the district court were to do that.

[00:18:21] Speaker 05:
So you're saying we can't do that, but the district court can do that?

[00:18:25] Speaker 02:
Yes, Your Honor, I think that the Ninth Circuit... But that makes no sense to me, because that sounds like the type of technical defect that even the Ninth Circuit allows to be cured.

[00:18:36] Speaker 00:
The Ninth Circuit has treated a lack of Article 3 standing at the time of judgment differently from what would be referred to as a technical defect.

[00:18:44] Speaker 02:
The other issue I would note is it's not... It baffles me why you're pressing this point because you one-on-one below and all you're going to end up doing is delaying this proceeding, sending it back, getting Unilock 27 added, having the same exact outcome and the same appeal again to us and wasting our time again on the one-on-one issue.

[00:19:04] Speaker 02:
I don't understand why you aren't switched on the jurisdictional side.

[00:19:08] Speaker 02:
It seems like they're the ones that should be delaying us ruling on 101 and you should be wanting us to rule on 101.

[00:19:14] Speaker 00:
To be clear, Your Honor, the District Court got it right and we believe it should be ultimately affirmed on the merits.

[00:19:19] Speaker 00:
But the reason we're here arguing this is because Uniloc has 24 cases pending against my client.

[00:19:26] Speaker 00:
And in a half dozen of those, this exact same issue is present.

[00:19:30] Speaker 05:
Really?

[00:19:31] Speaker 05:
Are you sure?

[00:19:32] Speaker 05:
Because I thought these cases from the group that we knew about, that these two cases were in a unique position because of the timing of the filing and the timing of the judgment.

[00:19:44] Speaker 00:
As to the time of judgment, yes.

[00:19:46] Speaker 00:
As to the time of filing, no.

[00:19:48] Speaker 00:
There are additional cases pending before Judge Alsop in the Northern District of California filed at more or less exactly the same time that have the same ab initia.

[00:19:57] Speaker 05:
So you're talking about, okay, so let's move to this fortress thing.

[00:20:01] Speaker 05:
Yes, Your Honor.

[00:20:02] Speaker 05:
So that's the other question that arises, right?

[00:20:05] Speaker 05:
It is.

[00:20:05] Speaker 05:
And that's at the time of filing.

[00:20:08] Speaker 05:
But you've raised that with Judge Alsop.

[00:20:11] Speaker 05:
He's already rejected your argument in that regard.

[00:20:14] Speaker 05:
Why are we sending it back to him so he can reject it and then we get to review his rejection of that on appeal?

[00:20:24] Speaker 05:
So we get this same case back two years from now and it's on the issue of whether or not his findings were correct on Fortress.

[00:20:34] Speaker 00:
But I do think that ultimately needs to happen, Your Honor.

[00:20:38] Speaker 00:
The fact of the matter is he has issued a ruling on that.

[00:20:41] Speaker 00:
He granted leave for us to file a motion for reconsideration on a particular issue.

[00:20:46] Speaker 00:
There are credibility issues involved in that motion.

[00:20:49] Speaker 00:
They have a witness declaration that they've submitted that we're attacking the credibility of.

[00:20:53] Speaker 00:
So there are a number of documents not present here that he's considering that were submitted in conjunction with that motion.

[00:20:59] Speaker 05:
Let me just ask you actually.

[00:21:01] Speaker 05:
This is just a separate question.

[00:21:03] Speaker 05:
On the issue that's being litigated, which is highly fact specific on Fortress, in that other case, is there a difference between the issue that would be litigated with regard to Fortress by Judge Alsop in this case?

[00:21:18] Speaker 05:
No, Your Honor.

[00:21:19] Speaker 05:
Okay, because there are all these different parties floating around and affected by the timing of everything, so it's the same thing.

[00:21:25] Speaker 00:
Yes, Your Honor, it would be the same issue.

[00:21:27] Speaker 00:
Unless you had further questions on the jurisdictional issue, again, we would urge consistent with this... Well, why don't you tell us about loan?

[00:21:34] Speaker 05:
You started off by wanting to explain loans, but I'm going to cut you off, so you should do that.

[00:21:38] Speaker 00:
Not at all, Your Honor.

[00:21:39] Speaker 00:
I would just note that Lone Star was not an Article III standing case.

[00:21:43] Speaker 00:
It was a case where the question was whether the exclusive licensee who admittedly had exclusionary rights needed to join the patent owner under Rule 19 as an indispensable party.

[00:21:54] Speaker 00:
And the holding in that case was that the district court erred because it dismissed the case without considering whether that joiner was proper.

[00:22:01] Speaker 00:
And that has nothing to do with the situation here because Uniloc USA didn't have exclusionary rights at the time of judgment.

[00:22:08] Speaker 00:
They had a bare license to sue, but the right to practice the patent and to exclude others was held by Uniloc 2017, which was not a partying at the time of judging.

[00:22:19] Speaker 05:
Let's assume that we presumably disagree with at least some of your analysis of the state of the law.

[00:22:25] Speaker 05:
So let's assume one important factor in our reading of the law is whether or not you would be prejudiced by an appellate joiner.

[00:22:33] Speaker 05:
The only argument you refer to here was you've got these other cases, so you want this resolved because of the other cases.

[00:22:41] Speaker 05:
To me, assuming I were right and the standard is whether or not you would be prejudiced at all, there's no prejudice to you by our proceeding granting appellate jurisdiction and moving forward on the merits, is there?

[00:22:55] Speaker 00:
On the issue at the time of judgment, you're correct, Your Honor.

[00:22:58] Speaker 00:
We don't assert prejudice from that.

[00:23:00] Speaker 00:
However, there would be prejudice from deciding the issue at the time of filing now, because the record before this Court is incomplete.

[00:23:09] Speaker 00:
And this goes into the complexities that you mentioned, Your Honor.

[00:23:11] Speaker 00:
There are a number of documents, a highly intensive fact-finding that the District Court is engaging in.

[00:23:16] Speaker 00:
So if this Court were to determine

[00:23:18] Speaker 00:
that the ad-initial standing issue was not a problem for Unilock, we would be prejudiced because that is evidence that we would not have been able to present to this court simply because of the procedural posture.

[00:23:30] Speaker 00:
And that is why we're asking for a remand, which is exactly what the Supreme Court in Newman-Green suggested.

[00:23:36] Speaker 05:
You would be prejudiced because not on the outcome of this case, right?

[00:23:43] Speaker 05:
You're fully prepared to litigate the merits, which is where we will, you know, whether it's the merits.

[00:23:47] Speaker 05:
You've won.

[00:23:48] Speaker 00:
We have one.

[00:23:49] Speaker 00:
And we believe that decision should be affirmed.

[00:23:51] Speaker 00:
But the prejudice... Yeah, what's the prejudice?

[00:23:54] Speaker 00:
The prejudice is simply that in the other cases, if this court were to affirm that were to find that there was jurisdiction at the outset, and Unalak were then to come in and tell the district court and tell future... Yeah, so that's what I thought, that there's no prejudice that would inerty you in this case.

[00:24:12] Speaker 05:
Your prejudice is...

[00:24:15] Speaker 05:
about what's going on in the other cases.

[00:24:17] Speaker 00:
Yeah, assuming that Your Honor has affirmed the substance of the... Do you think we should care about that?

[00:24:23] Speaker 05:
I mean, if I'm correct and that's a factor we look at as to whether or not you're prejudiced, do you think we go outside the four corners of this case and look at what prejudice might occur in another case?

[00:24:35] Speaker 05:
That seems a little odd to me.

[00:24:37] Speaker 00:
I do think that's committed to your sound discretion, Your Honors, and the only other thing I would submit is that I would submit that there is inherent prejudice if a judgment is issued in a case where there's no subject matter jurisdiction, that's inherently problematic.

[00:24:50] Speaker 00:
And so we should just do what the Supreme Court said in Newman Green if there's a factual dispute as to standing, which is to remand.

[00:24:56] Speaker 02:
But in determining that, we look at the facts in this case, right?

[00:24:59] Speaker 02:
We don't look at additional evidence developed in these other cases.

[00:25:03] Speaker 02:
I mean, it doesn't seem like this fortress issue has been fully developed in this case, right?

[00:25:09] Speaker 02:
It's developed in another case.

[00:25:11] Speaker 00:
It's been partially developed in the record here because we were able to submit some of the relevant documents.

[00:25:16] Speaker 00:
And from those documents, there's enough evidence in the record to see that there was a contract, that that contract did have a conveyance that could have been triggered to Fortress.

[00:25:25] Speaker 00:
And that if that conveyance were triggered, Fortress would have an unfettered right to license third parties to the patent in suit on any terms.

[00:25:35] Speaker 00:
And you think that defeats the jurisdiction at the time of filing?

[00:25:39] Speaker 00:
Absolutely.

[00:25:39] Speaker 00:
We think that under the Luminarra case... What more facts do we need to decide that issue then?

[00:25:43] Speaker 00:
So Uniloc's defense to this is that the defect was cured and whether or not there was a cure involves issues of fact as to what it is Uniloc did to cure and whether the declaration of a witness below Mr. James Palmer was in fact credible.

[00:25:58] Speaker 00:
We've challenged that, we've asked for an evidentiary hearing before the district court and we submit that that would be exactly what would need to be done in this case to resolve the issue as well.

[00:26:07] Speaker 04:
Your prejudice argument I take it if I understand it and I'm not sure I do.

[00:26:12] Speaker 04:
is that if we take jurisdiction on the grounds that we can cure whatever needs to be cured by joining Unilock 17, that then becomes the law of this circuit, presumably, and your argument is that gets in the way of your litigating that

[00:26:40] Speaker 04:
the question of original jurisdiction at the time of filing in these other cases, which ultimately will come before this court.

[00:26:50] Speaker 04:
Is that your prejudice argument?

[00:26:54] Speaker 05:
Yes, Your Honor.

[00:26:55] Speaker 05:
We know there's one case being litigated with the one where Judge Alsop has asked for your filing of motion for reconsideration.

[00:27:01] Speaker 05:
You then mentioned like six others.

[00:27:05] Speaker 05:
Are those issues alive or is that just something that's waiting in the wings?

[00:27:09] Speaker 00:
The issue is live in all those cases.

[00:27:11] Speaker 00:
We filed identical motions below in each of the... There are four cases other than this one that are live.

[00:27:17] Speaker 00:
There is one other one that's... We believe Unilock was attempting to dismiss the case before it got stayed.

[00:27:23] Speaker 00:
And then there is this case, so that's six.

[00:27:25] Speaker 05:
And you're telling us that the issue of Fortress is the exact same thing.

[00:27:29] Speaker 05:
It's not temporarily different because of the time of filing of these other cases?

[00:27:33] Speaker 02:
Correct.

[00:27:34] Speaker 02:
Is it are the jurisdictional facts different as developed in these different cases?

[00:27:39] Speaker 00:
No, so the district court coordinated the proceedings among all these cases.

[00:27:43] Speaker 02:
So this case is all the facts that are developed in those cases are in this case, too.

[00:27:49] Speaker 02:
No, Your Honor, because well, that's what I was asking.

[00:27:51] Speaker 02:
I mean, in terms of prejudice, if we decide based on the specific jurisdictional facts here, if the facts are different in different case,

[00:28:00] Speaker 02:
then why would you be prejudiced?

[00:28:02] Speaker 00:
The facts aren't different, but the state of the record is different because judgment was entered in this case before Unilock provided the discovery that triggered both to us and to the district court the potential for this issue to exist.

[00:28:15] Speaker 02:
Well, so the record facts are different.

[00:28:18] Speaker 00:
The record, yes, Your Honor, is different.

[00:28:21] Speaker 00:
I see that my time has elapsed, so I apologize for not getting to the merits, Your Honor.

[00:28:26] Speaker 00:
If there's any questions you have on that, I would be happy to address them.

[00:28:30] Speaker 04:
Yes, there are lots of questions on it, but I don't know whether we're going there or what we're going to do, Madam Chief Judge.

[00:28:39] Speaker 05:
You're free to ask questions.

[00:28:45] Speaker 05:
I can't figure this out on the spot, so it's up to you.

[00:28:50] Speaker 04:
Ну, если вы хотите, я перейду к линии вопросов, которые у меня есть, но я не уверен, что у нас есть дюриздикция для того, чтобы это сделать, unless мы решили, что у нас есть дюриздикция для решения мероприятия.

[00:29:04] Speaker 05:
Ну, я не готова это сделать.

[00:29:09] Speaker 04:
Что вы рекомендуете?

[00:29:10] Speaker 05:
Я, вероятно, рада, чтобы перейти к следующему случаю.

[00:29:13] Speaker 05:
К другому случаю, но это только вам.

[00:29:20] Speaker 04:
Let me pursue a line of questions.

[00:29:27] Speaker 04:
Council, the trial judge, as near as I can figure it out in this case, said that the 203 patent is limited to the high-level concept

[00:29:47] Speaker 04:
of adjusting a battery's current flow based on its temperature.

[00:29:54] Speaker 04:
Yes, Your Honor.

[00:29:54] Speaker 04:
And you persuaded the judge that that's an abstract idea.

[00:30:03] Speaker 04:
Yes, Your Honor.

[00:30:06] Speaker 04:
It's interesting that the trial judge said the 203 patent

[00:30:12] Speaker 04:
is limited rather than the claims of the 203 patent.

[00:30:18] Speaker 04:
So help me with this.

[00:30:19] Speaker 04:
I'm not an engineer, so I'm not sure I even understand what's going on in this case.

[00:30:28] Speaker 04:
But if I understand the Alice case, we're supposed to look at the claims at issue.

[00:30:39] Speaker 04:
Would you look at the claim?

[00:30:41] Speaker 04:
Well, let's just take the claim at issue.

[00:30:45] Speaker 04:
Take the claim, perhaps.

[00:30:49] Speaker 04:
Claim one is a good example, do you think?

[00:30:52] Speaker 04:
Certainly, Your Honor.

[00:30:53] Speaker 04:
I'm looking at Appendix 46 of the blue brief.

[00:31:01] Speaker 04:
The patent appears in a variety of contexts.

[00:31:03] Speaker 04:
Walk me through this.

[00:31:05] Speaker 04:
Let me give you a hypothetical.

[00:31:08] Speaker 04:
After reading this, I went online and asked Amazon if they could sell me this product.

[00:31:18] Speaker 04:
And they said, sure, what do you want to use it for?

[00:31:21] Speaker 04:
And I said, for an automobile.

[00:31:24] Speaker 04:
And they said, fine, we'll send it to you, you'll have it tomorrow.

[00:31:28] Speaker 04:
In fact, it showed up here and the box is sitting right there under that.

[00:31:35] Speaker 04:
And I brought in a

[00:31:37] Speaker 04:
Walk me through claim one and tell me what you would get out of the box if someone said to you, what does claim one look like?

[00:31:58] Speaker 00:
What does claim one look like?

[00:32:02] Speaker 04:
What does the apparatus of claim one look like?

[00:32:08] Speaker 04:
Is it an idea or is it a thing?

[00:32:13] Speaker 00:
Claim One is a collection of admittedly conventional components.

[00:32:17] Speaker 04:
No, no, no.

[00:32:18] Speaker 04:
Don't give me a lot of words.

[00:32:26] Speaker 04:
Go through Claim One line by line.

[00:32:27] Speaker 04:
Absolutely, Your Honor.

[00:32:28] Speaker 04:
What is claimed is an apparatus for charging a battery.

[00:32:30] Speaker 04:
Here's the battery.

[00:32:32] Speaker 04:
The battery is right here.

[00:32:33] Speaker 04:
You have a box full of the rest of Claim One.

[00:32:36] Speaker 04:
Absolutely.

[00:32:37] Speaker 04:
Let's go to the next line.

[00:32:39] Speaker 04:
A charging circuit.

[00:32:40] Speaker 04:
Would you take that out of the box and show it to me?

[00:32:43] Speaker 04:
What does it look like?

[00:32:44] Speaker 00:
The patent doesn't tell us what it looks like.

[00:32:46] Speaker 04:
What do you think it looks like?

[00:32:48] Speaker 00:
I don't know.

[00:32:48] Speaker 00:
There's any number of different types of circuitry that can be used.

[00:32:51] Speaker 00:
Any circuitry that could conceivably be used to charge a battery would fall within the scope of that element.

[00:32:56] Speaker 04:
It could be an alternator.

[00:32:58] Speaker 04:
It could be a battery charger that you get downtown.

[00:33:01] Speaker 04:
It could be any one of those things.

[00:33:02] Speaker 00:
It could be any one of those things, Your Honor.

[00:33:03] Speaker 04:
But it would be a box of some kind, a piece of hardware of some kind.

[00:33:07] Speaker 00:
It would be some physical thing, if that's what Your Honor is asking.

[00:33:11] Speaker 04:
That's where I want to go.

[00:33:12] Speaker 04:
Secondly, a temperature sensor, position to sense the temperature of said battery.

[00:33:18] Speaker 04:
What is a temperature sensor?

[00:33:20] Speaker 04:
I'm not an engineer.

[00:33:21] Speaker 04:
You need to help me.

[00:33:22] Speaker 04:
What would I see coming out of the Amazon box that looks like a temperature sensor?

[00:33:28] Speaker 04:
What is that?

[00:33:29] Speaker 00:
Once again, Your Honor, we don't know exactly what it looks like.

[00:33:32] Speaker 00:
Can't know exactly.

[00:33:32] Speaker 00:
It would be some unspecified thing that in some unspecified way, using some unspecified material, responded to changes in temperature.

[00:33:42] Speaker 00:
Piece of hardware.

[00:33:44] Speaker 00:
Most likely, yes.

[00:33:47] Speaker 04:
Ok.

[00:33:49] Speaker 04:
I'll accept that.

[00:33:51] Speaker 04:
A controller.

[00:33:54] Speaker 04:
Why don't you read that?

[00:33:56] Speaker 04:
A controller coupled to said temperature sensor.

[00:33:59] Speaker 04:
Ok.

[00:33:59] Speaker 04:
Is that a little guy with a computer that's going to come at it?

[00:34:04] Speaker 04:
What is that device?

[00:34:05] Speaker 00:
So according to this patent, it's any electronic element that can perform the basic idea recited here.

[00:34:13] Speaker 00:
So it's some piece of electronics.

[00:34:16] Speaker 00:
We don't know what.

[00:34:17] Speaker 00:
Or it's some software running on some electronic, which we don't know the nature of either.

[00:34:22] Speaker 00:
It's some kind of an apparatus.

[00:34:23] Speaker 04:
It's probably in a little metal container of some kind or other.

[00:34:29] Speaker 00:
Or software running on some kind of a generic hardware.

[00:34:34] Speaker 04:
Yeah.

[00:34:35] Speaker 04:
Okay.

[00:34:35] Speaker 04:
Let me ask you this question.

[00:34:36] Speaker 04:
What is abstract about what came out of that box?

[00:34:41] Speaker 00:
What's abstract about the claim, Your Honor, is that

[00:34:44] Speaker 00:
The only thing in this claim beyond conventional elements is the idea of changing current based on temperature.

[00:34:51] Speaker 04:
Don't tell me that.

[00:34:53] Speaker 04:
What is abstract about what came out of that box?

[00:34:57] Speaker 04:
You put up here in front of me a battery and four pieces of hardware.

[00:35:02] Speaker 04:
What's abstract about that?

[00:35:03] Speaker 00:
We're happy to concede that those are physical elements, Your Honor.

[00:35:06] Speaker 00:
They are tangible.

[00:35:07] Speaker 00:
You can touch them.

[00:35:08] Speaker 00:
But under this Court's precedent, that is absolutely not a bar to finding a claim abstract.

[00:35:14] Speaker 00:
In fact, in the recent decision of the ChargePoint versus Semiconnect case, which is a 2019 case, the claim that was held abstract in that case was actually directed to a battery charger.

[00:35:26] Speaker 00:
And it was actually directed to a battery charger that had almost all of the elements that I just pulled out of that imaginary box.

[00:35:32] Speaker 00:
Claim 31 of the 970 patent in Charge Point, 930, Fed 3rd, 759, at page 772.

[00:35:41] Speaker 00:
The claim 31 discussed that that citation included a charge transfer device.

[00:35:46] Speaker 00:
So that was the charging circuit that Your Honor asked me to pull out.

[00:35:49] Speaker 00:
It included a controller.

[00:35:50] Speaker 00:
That's the controller that Your Honor asked me to pull out.

[00:35:53] Speaker 00:
It included a current measuring device.

[00:35:55] Speaker 00:
That's the analog to the temperature measuring device.

[00:35:57] Speaker 04:
Nothing abstract about all of it.

[00:36:00] Speaker 04:
Let me ask you one further question.

[00:36:04] Speaker 04:
Back in January 24th, 1950, probably before you were born, the Patent Office issued a patent that had been filed October 8th, 1945, right after World War II.

[00:36:21] Speaker 04:
And the name of the patent was Method of Treating Foodstuffs.

[00:36:26] Speaker 04:
Pretty abstract.

[00:36:28] Speaker 04:
Method of Treating Foodstuffs, huh?

[00:36:32] Speaker 00:
I don't know, Your Honor, I need to see the claims and you are quite correct that that was before I was born, so I have not seen the claims in that patent.

[00:36:39] Speaker 04:
It's an interesting patent because it turns out that the method of treating foodstuffs was the first microwave oven.

[00:36:49] Speaker 04:
Because this guy had worked, Spencer, the inventor, had worked on radar equipment and was standing in front of one of those magnetometers when the chocolate bar in his pocket melted.

[00:37:07] Speaker 04:
God knows what else melted, but that melted and he figured out that that had something to do with those microwaves.

[00:37:13] Speaker 04:
So he put this invention in.

[00:37:15] Speaker 04:
It's just a microwave oven.

[00:37:19] Speaker 04:
Would this be subject to the same kind of analysis that you are arguing for in the case here?

[00:37:29] Speaker 04:
We can't look at what's in the claim at issue.

[00:37:32] Speaker 04:
We have to look at some sort of higher level notion of what might possibly be represented by that claim.

[00:37:43] Speaker 04:
Is that your understanding of our jurisprudence?

[00:37:46] Speaker 00:
we have to look at, as the court has directed, what the claim is directed to under step one.

[00:37:51] Speaker 00:
I think that the analogy that Your Honor or the case Your Honor is describing is actually directly analogous to the Morse case.

[00:37:57] Speaker 00:
And so the way I would answer your question is to say there could be claims on a microwave that would be patentable and unpatentable.

[00:38:03] Speaker 00:
In the Morse case, there were claims on a specific

[00:38:08] Speaker 00:
I think it was a telegraph in that case.

[00:38:10] Speaker 00:
The specific apparatus claims to the telegraph, which used elements in a new way and an unconventional set of components, those were patentable.

[00:38:18] Speaker 00:
But the Supreme Court said that there was a claim that was directed to the use of electromagnetism, however developed, to transmit information at a distance.

[00:38:26] Speaker 00:
That claim was unpatentable.

[00:38:28] Speaker 00:
So if your microwave claim, Your Honor, said the use of microwaves to heat food, however developed, unpatentable.

[00:38:34] Speaker 00:
But could you have an apparatus claim in 1950 that were 1945 that had unconventional components and was patentable and heated food in a microwave?

[00:38:42] Speaker 00:
Absolutely you could.

[00:38:45] Speaker 04:
Both you and the appellant said that the question is, here's

[00:38:56] Speaker 04:
As to the merits, the District Court correctly held that the 203 patent is directed to an abstract idea.

[00:39:07] Speaker 04:
You understand that the Supreme Court's Alice case is aimed at what the patent

[00:39:21] Speaker 04:
It's what the claims at issue are, of course, Your Honor.

[00:39:30] Speaker 04:
Then what did you mean by the sentence that as to the merits the district court correctly held that the 203 patent

[00:39:39] Speaker 04:
is directed to an abstract idea.

[00:39:42] Speaker 04:
Why did you say the issue is that it's what the patent is directed to?

[00:39:47] Speaker 04:
I don't understand that.

[00:39:48] Speaker 00:
Two reasons.

[00:39:49] Speaker 00:
First, we were simply adopting the district court's use of that to refer to what the asserted claims.

[00:39:54] Speaker 04:
It's clear the district court thought that was the question.

[00:39:58] Speaker 04:
What is the patent directed to?

[00:40:01] Speaker 04:
District Court never really talked about the claims.

[00:40:06] Speaker 04:
District Court talked about the specification.

[00:40:09] Speaker 04:
District Court talked about everything in the world, but didn't bother talking much about the specific claims and said the question is what is the patent directed to as you did and as in fact they do.

[00:40:25] Speaker 04:
They make the same statement.

[00:40:27] Speaker 04:
In their reply brief, here's what they said.

[00:40:29] Speaker 04:
They said,

[00:40:31] Speaker 04:
Unilock limits this reply brief to whether the patent claims an abstract idea, using claim there not in the patent sense, but in the sense of argues for.

[00:40:45] Speaker 04:
So all of you seem to think that what the Alice case is about is what the patent is about, rather than what the claims at issue are about.

[00:40:58] Speaker 04:
And I need help to understand why we're going all the way over there, because that's your case.

[00:41:06] Speaker 00:
So, Your Honor, we did, and I regret any confusion, we used that as a shorthand for what the claims were directed to.

[00:41:13] Speaker 00:
The District Court's opinion clearly analyzed the claims themselves.

[00:41:17] Speaker 00:
I would point, Your Honors, to Appendix 5 at Lines 14 to 26 and so on, where the District Court goes through the text.

[00:41:25] Speaker 04:
Yes, of course he talked about the claims.

[00:41:26] Speaker 00:
But then Appendix 9, where...

[00:41:29] Speaker 00:
Appendix 9 at Line 24, what Unilock claims are sweeping abstract swaths of possible methods.

[00:41:34] Speaker 00:
Appendix 10 at Line 10, Unilock makes attempts to identify a concept in its claimed invention.

[00:41:41] Speaker 00:
Line 11, Unilock compares its claimed invention.

[00:41:44] Speaker 04:
Where did the District Court state succinctly what the abstract idea is?

[00:41:52] Speaker 00:
Your Honor, the best formulation is at Appendix 8, Lines 12 to 21,

[00:41:57] Speaker 00:
Where the district court... Appendix what?

[00:42:00] Speaker 00:
Eight, your honor.

[00:42:01] Speaker 00:
Eight?

[00:42:02] Speaker 00:
Eight.

[00:42:02] Speaker 00:
And so the district court said, Unilock's assertion that it's claimed invention is not directed to an expression of the abstract idea that current should be related to temperature is plainly false.

[00:42:13] Speaker 00:
The district court then went on to explain why that was plainly false and concluded by saying... But he's talking about the claimed invention.

[00:42:21] Speaker 04:
He's not talking about the claims.

[00:42:22] Speaker 00:
I think he was talking about the claims, Your Honor.

[00:42:25] Speaker 00:
In referring to the claimed invention, Judge Allsup was referring to that which was claimed, purported to be an invention, and recited in the claims.

[00:42:32] Speaker 00:
And that's buttressed by the fact that the District Court went through the claim, set it out, and talked about the claims and the claimed invention repeatedly.

[00:42:40] Speaker 00:
And I think the reason the District Court talked about the patent as a whole was because there's case law that says that

[00:42:46] Speaker 00:
You should look to the specification to confirm an understanding developed from the claims about what the invention is directed to.

[00:42:53] Speaker 00:
The district court did that here.

[00:42:55] Speaker 04:
We submit properly.

[00:42:57] Speaker 04:
Judge Thomas, Justice Thomas and Alice said, at the same time, we tread carefully.

[00:43:05] Speaker 04:
This exclusionary principle lest it swallow all of patent law.

[00:43:12] Speaker 04:
At some level all inventions embody, use, reflect, rest upon or apply laws of nature, natural phenomena or abstract ideas.

[00:43:25] Speaker 04:
Thus invention is not rendered ineligible for patents simply because it involves an abstract concept.

[00:43:35] Speaker 00:
Yes, Your Honor.

[00:43:39] Speaker 00:
Finding that this invention was unpatentable would not in any way tread on those problems.

[00:43:44] Speaker 00:
Look at Claim 16.

[00:43:45] Speaker 00:
There is nothing in Claim 16 but the abstract idea.

[00:43:48] Speaker 00:
Literally nothing.

[00:43:50] Speaker 00:
It doesn't specify

[00:43:51] Speaker 03:
Claim one.

[00:43:53] Speaker 03:
Stay with claim one?

[00:43:54] Speaker 00:
Same problem with claim one.

[00:43:55] Speaker 00:
There's no specificity in claim one whatsoever.

[00:43:58] Speaker 00:
It's exactly the type of functional claiming that this court has repeatedly found to be... What do you mean by no specificity?

[00:44:07] Speaker 00:
It claims a controller?

[00:44:09] Speaker 00:
That's pretty specific.

[00:44:10] Speaker 00:
It's not, Your Honor.

[00:44:11] Speaker 00:
The controller, according to the patent, can be anything.

[00:44:14] Speaker 04:
So your objection is the patent is indefinite.

[00:44:17] Speaker 00:
No, Your Honor.

[00:44:19] Speaker 00:
Under cases like TLI, this court has repeatedly looked to the level of detail that's present in the claims to determine as a clue to whether they're abstract.

[00:44:29] Speaker 00:
And what we have here is no specificity as to what type of controller, what type of sensor, where the sensor is placed, how the threshold is set.

[00:44:38] Speaker 00:
That's the entire purportedly inventive aspect of this, purportedly non-abstract aspect, and there is no specificity.

[00:44:45] Speaker 04:
The Inventive Act doesn't come up until Step 2.

[00:44:49] Speaker 04:
We're talking about Step 1.

[00:44:51] Speaker 04:
Is this an abstract?

[00:44:54] Speaker 04:
Is that battery and four pieces of hardware a Step 1 abstraction?

[00:45:01] Speaker 04:
That's the question we have to first ask.

[00:45:03] Speaker 04:
And there are two parts of Step 1.

[00:45:05] Speaker 04:
Step 1, is it abstract?

[00:45:08] Speaker 04:
And the second part is that abstraction of a violation, etc.

[00:45:16] Speaker 04:
We never talk about step one, part one of step one.

[00:45:22] Speaker 00:
Is this really an abstract?

[00:45:23] Speaker 00:
We think that this court's decision in the ChargePoint versus Semiconnect case, I would say, is controlling on that.

[00:45:28] Speaker 00:
That's a battery charger.

[00:45:29] Speaker 00:
It was held to be abstract.

[00:45:30] Speaker 00:
There's no principle difference between that case and the claims at issue here.

[00:45:33] Speaker 04:
I'm not going to defend it.

[00:45:36] Speaker 04:
Okay, I'm done.

[00:45:39] Speaker 04:
Thank you, Your Honor.

[00:45:43] Speaker 01:
Do I have any rebuttal time, Your Honor?

[00:45:44] Speaker 05:
I will give you a couple of minutes.

[00:45:47] Speaker 05:
Preference would be if you have anything in addition to say on the jurisdictional question based on what Apple said.

[00:45:53] Speaker 01:
Very brief.

[00:45:54] Speaker 01:
The last thing I want to do is spend the next two years waiting for the merits to be decided, and I have a couple of suggestions how the court can take care of the jurisdictional issue.

[00:46:04] Speaker 01:
One is, and I invite you again to read Lone Star, which no one's read because it's too recent.

[00:46:09] Speaker 01:
The approach Judge McNally took in Lone Star was you look at the facts in the complaint and you assume they are true for jurisdictional purposes.

[00:46:19] Speaker 01:
Assume that what we say is true for jurisdictional purposes.

[00:46:22] Speaker 01:
That resolves the jurisdictional issue.

[00:46:24] Speaker 01:
After all, the only issue is whether the court is something the court should decide.

[00:46:28] Speaker 02:
Was this fortress issue raised below by your friend in response to your complaint?

[00:46:34] Speaker 02:
In this case, I don't want to hear about the evidence in other cases.

[00:46:41] Speaker 02:
In this case, that's what's so confusing is you're all talking about what's going on in other cases, but you correctly noted that we look at the complaint file in this case, the well-planned factual allegations to first look at jurisdiction.

[00:46:54] Speaker 02:
They can, of course, confront those allegations if they have different ones.

[00:46:59] Speaker 02:
Was this fortress issue ever raised?

[00:47:01] Speaker 01:
This case, the appeal in this case was filed before the jurisdictional discovery which gave birth to the argument.

[00:47:10] Speaker 02:
And when, so at the time you filed your complaint, nobody raised this.

[00:47:14] Speaker 02:
At some point apparently it became an issue.

[00:47:18] Speaker 02:
Yes.

[00:47:18] Speaker 02:
And was it specifically raised to Judge Alsop in this case?

[00:47:23] Speaker 01:
No, not in this case because this case was before this court by the time the issue came up.

[00:47:27] Speaker 05:
And that was because the matter had not gone through discovery yet.

[00:47:32] Speaker 01:
Right.

[00:47:33] Speaker 01:
And it came up in other ALSOF cases and here we are.

[00:47:36] Speaker 01:
So my first suggestion, of course, take it, is assume the facts are true for jurisdictional purposes and move on to the merits.

[00:47:43] Speaker 05:
If you don't think that would affect the other cases, so we're not going to decide it because we just assume it's true and something wasn't raised below, so we just foreclose it.

[00:47:53] Speaker 02:
ну, в других случаев, конечно, это было разнообразно и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и, и

[00:48:17] Speaker 02:
Если бы мы не подвели это, потому что никто никогда не подвели это правильно, то почему бы это подвел Judge Alsop в любых из этих других случаев?

[00:48:25] Speaker 01:
Так что, у меня есть предложение к этому.

[00:48:27] Speaker 01:
Мы сделали предложение в нашем апелитаре здесь, что то, что Апла долженла сделать, в этом случае, было следовать правилу 62.1, motion with Judge Alsop, asking for an indicative ruling, that if you sent it back to him, he would rule in Apple's favor.

[00:48:40] Speaker 01:
Они не подвели предложение, и вы, этот апелитар, можете сказать, что это была ваша опция, вы не подвели.

[00:48:46] Speaker 05:
You're out of luck, or not.

[00:48:48] Speaker 05:
That's just the cousin of renaming.

[00:48:51] Speaker 01:
Okay.

[00:48:53] Speaker 01:
My third suggestion, and last suggestion, and then I'll sit down.

[00:48:57] Speaker 01:
In the Lone Star case, their argument as to Fortress is that Fortress had a non-exclusive license and therefore the patent owner did not have complete control over the patent.

[00:49:08] Speaker 01:
In the Lone Star case, I invite you to read the actual language.

[00:49:13] Speaker 01:
There is language that is saying that a non-exclusive license does not, to a third party, does not deprive the Patent Owner of Article 3 jurisdiction.

[00:49:21] Speaker 01:
Again, that's DECTA, it's not the holding, but if you agree with it, that also resolves the jurisdictional issue.

[00:49:31] Speaker 05:
You don't have to send this case back to us.

[00:49:31] Speaker 05:
Okay, thank you.

[00:49:32] Speaker 05:
Thanks for the size and the cases.