[00:00:00] Speaker 01:
I now call the second case for argument, Electronic Communication Technologies versus Shoppers Choice, case 2019-2087.

[00:00:12] Speaker 01:
Mr. Friedland, whenever you're ready.

[00:00:16] Speaker 02:
Thank you.

[00:00:16] Speaker 02:
Good morning and may it please the court.

[00:00:18] Speaker 02:
David Friedland on behalf of Appellant, shopperschoice.com.

[00:00:23] Speaker 02:
Through this appeal, Appellant submits that the District Court have used its discretion

[00:00:27] Speaker 02:
by not properly considering the totality of the circumstances and denying... Mr. Friedland, this is Judge Wallach.

[00:00:34] Speaker 03:
The district court relied on 15 USC 1117 in its denial of attorney's fees instead of 35 USC 285.

[00:00:47] Speaker 03:
And the district court also cited Tabernak versus Novella

[00:00:56] Speaker 03:
which is an 11th Circuit case adopting Federal Circuit case law involving Section 285 fees and held that the precedent also applies to 1117.

[00:01:11] Speaker 03:
Does this 285 precedent render your incorrect standard claim harmless?

[00:01:20] Speaker 02:
No, Your Honor, because by considering 11th Circuit case law,

[00:01:26] Speaker 02:
and the Lanham Act adoption of octane fitness, the district court did not consider applicable federal circuit case law decided after octane such as Rothschild connected devices which permits the court to look at factors such as ECT's pattern or pervasive litigation in determining an exceptional case.

[00:01:51] Speaker 02:
That is a situation that does not come up in the Lanham Act

[00:01:55] Speaker 02:
because you can't have a non-practicing entity under the Lanham Act or trademarks would be abandoned.

[00:02:01] Speaker 02:
So, in this particular situation, because the court looked to the Lanham Act and cases decided under the Lanham Act and the Tobinic-Vivela cases, the 11th Circuit case adopting octane fitness for Lanham Act cases, the analysis by the district court did not include

[00:02:23] Speaker 02:
federal circuit cases that would contribute to an exceptionality finding in a patent case as opposed to a trademark case.

[00:02:33] Speaker 01:
I'm not sure... Go ahead Judge Wallach.

[00:02:36] Speaker 03:
Oh, thank you Judge Cross.

[00:02:38] Speaker 03:
Just one follow-up on this.

[00:02:40] Speaker 03:
If we were to agree with you that the incorrect statute was applied, do we need to reach an abuse of discretion analysis beyond that?

[00:02:52] Speaker 02:
Well, the abuse of discretion analysis in this case looks at the inquiry that the district court made into the octane fitness factors, the totality of the circumstances, the deterrent effect of exceptionality findings, none of which are present in the district court's order or in the order denying reconsideration.

[00:03:16] Speaker 03:
So.

[00:03:18] Speaker 03:
But if we say that by applying

[00:03:21] Speaker 03:
1117, the district court simply erred.

[00:03:27] Speaker 02:
Do we need to go further?

[00:03:34] Speaker 02:
No, you do not need to go further because the district court would then need to make the proper analysis under Title 35 instead of the Lanham Act.

[00:03:45] Speaker 01:
Well, let me just insert myself in this discussion because I guess,

[00:03:51] Speaker 01:
The question is whether or not it was error or if it's error, it was harmless error.

[00:03:58] Speaker 01:
And if you look at the district court's discussion, he clearly was talking about the standard in octane.

[00:04:05] Speaker 01:
Even when he cited Tobinic, the 11th Circuit case where he's in the 11th Circuit, he did, he talked about the standard in octane fitness.

[00:04:16] Speaker 01:
So I don't know whether why the error was committed or what it means, but it certainly does not suggest to me, at least in his discussion, that he was deviating or recognized anything beyond the Octane Fitness standard.

[00:04:32] Speaker 01:
And to your point on subsequent federal circuit cases, I understand that.

[00:04:39] Speaker 01:
I appreciate it.

[00:04:40] Speaker 01:
But no, we've not required a district court judge under an abuse of discretion standard

[00:04:46] Speaker 01:
to necessarily cite Rothschild or subsequent Federal Circuit cases.

[00:04:53] Speaker 01:
And even if you were right about those issues, I don't see how those have anything to do with the Lanham Act.

[00:05:00] Speaker 01:
They have to do with the fact that the judge maybe didn't do enough here in terms of discussing the other challenges you made.

[00:05:08] Speaker 02:
Correct, Your Honor.

[00:05:10] Speaker 02:
And that's why in our briefing and in this appeal, our position is that the,

[00:05:15] Speaker 02:
Totality of the circumstances analysis undertaken by the district court under Section 285, notwithstanding his application of the Lanham Act, was still inadequate.

[00:05:27] Speaker 02:
He did not address a number of the factors that were presented to him.

[00:05:30] Speaker 02:
He ignored the True Grit decision that came out a week before his decision that was presented to him, both in his- Okay, I'm sorry to interrupt, but time is limited.

[00:05:40] Speaker 01:
And I take your point, we've all read the brief.

[00:05:43] Speaker 01:
You never asked in your brief, as I can tell, for a remand.

[00:05:48] Speaker 01:
You're seeking exclusively reversal.

[00:05:51] Speaker 01:
Now it seems to me, even if we were to clue them that abuse of discretion, that your arguments have some heft that goes to whether or not the district court should have at least done an analysis of the other factors and those other cases.

[00:06:08] Speaker 01:
So I'm a little,

[00:06:09] Speaker 01:
troubled by your only of asking for a reversal, whereas I think your argument at best might support a remand.

[00:06:18] Speaker 02:
Well, our position, Your Honor, is that when you look at the totality of the circumstances and you look at all the factors that have been brought to the Court's attention in our briefing.

[00:06:29] Speaker 01:
But you're asking us to make a fact finding with respect to those factors.

[00:06:33] Speaker 01:
on our own as opposed to arguing that the district court should have at least discussed and analyzed that.

[00:06:43] Speaker 01:
But it seems to me what you're asking us to do on an abuse of discretion is to take what the district court said nothing about to analyze those matters and to come to our own conclusion.

[00:06:58] Speaker 01:
And that seems a bit aggressive asking too much of how a court to do, doesn't it?

[00:07:05] Speaker 02:
If the factors in front of you do not give you a basis to find this is an exceptional case, then the district court should be instructed to reanalyze the exceptionality on a remand at which time it can consider both the exceptionality issue and the amount of fees requested which has not been addressed because of the denial.

[00:07:34] Speaker 01:
I appreciate that.

[00:07:35] Speaker 01:
That's what I'm saying.

[00:07:36] Speaker 01:
But the question is, did you ever ask for that?

[00:07:39] Speaker 01:
I looked at the back of blue.

[00:07:41] Speaker 01:
Now I'm looking at gray.

[00:07:42] Speaker 01:
In blue, you ask exclusively for a reversal.

[00:07:47] Speaker 01:
In gray, you repeat that.

[00:07:49] Speaker 01:
You're seeking just a reversal, but not for a remand in which just your court judge would be required or compelled to analyze those other matters that you raised here.

[00:08:02] Speaker 02:
Well, if this court is not going to make a finding on exceptionality, then the alternative should be a remand with instructions to the district court to consider the totality of the circumstances.

[00:08:15] Speaker 00:
That's all.

[00:08:16] Speaker 01:
Do you think we're required to seek a remand, to ask for a remand in order to get a remand?

[00:08:29] Speaker 02:
If we, I would,

[00:08:32] Speaker 02:
I would argue that implicit in our request for a reversal is a request that if you don't want to make the decision, you give it back to the district court to do so.

[00:08:44] Speaker 02:
The district court did not consider the totality of the circumstances.

[00:08:49] Speaker 00:
Which circumstances didn't it consider?

[00:08:52] Speaker 02:
It didn't consider ECT and shipping and transits litigation history with hundreds of cases filed in the same manner

[00:09:01] Speaker 02:
It did not consider the True Grit case which was decided a week before on the same patent claim where the district court in the central district of California found that this was an exceptional case based on the filing history, the nuisance licensing letters.

[00:09:18] Speaker 02:
None of these were considered.

[00:09:19] Speaker 02:
The district court did not consider the covenant not to sue that was brought to its attention where,

[00:09:26] Speaker 02:
our client shipped via FedEx and FedEx received a covenant not to sue for itself and its customers.

[00:09:33] Speaker 01:
Well, of course, we don't know whether the district court considered that or not.

[00:09:37] Speaker 01:
The district court said we relied on the totality of circumstances.

[00:09:42] Speaker 01:
Normally, we have a lot of case law that says that you don't have to say something about everything.

[00:09:48] Speaker 01:
In a number of our opinions, we say we considered the other arguments and we just summarily dismissed them.

[00:09:55] Speaker 01:
So why is that in and of itself?

[00:09:57] Speaker 01:
The district court tells us they applied the totality of circumstances.

[00:10:04] Speaker 01:
Why isn't that sufficient for us to assume that the district court did consider them, not as in your view, which is that they didn't consider them at all?

[00:10:16] Speaker 02:
Because first of all, the district court doesn't even identify those circumstances, let alone discuss its consideration of them.

[00:10:23] Speaker 02:
The only circumstances the district court

[00:10:25] Speaker 02:
where the lack of binding cases on point for the specific technology that was invalidated under Section 101 and the litigation conduct.

[00:10:35] Speaker 02:
There is no mention whatsoever of the deterrent factor that is present in Octane Fitness.

[00:10:42] Speaker 02:
There is no mention of True Grit which is the same case decided by a different court a week apart.

[00:10:49] Speaker 02:
So we are only left to guess what the district court may have considered.

[00:10:53] Speaker 02:
And in prior decisions of this court such as Newegg, this has been pointed out as a basis for finding that the inquiry by the district court was inadequate and therefore an abuse of discretion.

[00:11:06] Speaker 03:
This is Judge Wallach.

[00:11:08] Speaker 03:
Remind me, was true grit raised to the court by letter or otherwise?

[00:11:16] Speaker 02:
True grit was entered on May 23rd of last year, on May 28th after briefing was completed.

[00:11:23] Speaker 02:
We filed a notice of supplemental authority with the court with a copy of TrueGrid attached.

[00:11:30] Speaker 02:
And then on May 31st, the court entered its order denying the fees motion.

[00:11:34] Speaker 03:
And then- And then where's the notice of supplemental authority in the record?

[00:11:43] Speaker 02:
I believe it's docket entry 97, but I would have to- That's okay.

[00:11:48] Speaker 03:
Thank you.

[00:11:49] Speaker 02:
All welcome.

[00:11:53] Speaker 02:
It was also raised in our motion for reconsideration, which was filed a business day or two after the denial of the Section 285 motion with a request that the court consider true grit in its analysis on reconsideration.

[00:12:10] Speaker 00:
But you never argued, did you, that true grit was in some way collateral estoppel in respect to the issue before the court here?

[00:12:21] Speaker 02:
Please answer.

[00:12:23] Speaker 00:
Did you argue the true grit created collateral estoppel binding on the district court here?

[00:12:34] Speaker 02:
No, because it is not collateral estoppel, it's a different district court.

[00:12:39] Speaker 02:
We argued that it was the same patent holder as the asserting, a party asserting infringement, the same analysis that we had undertaken in our 285 motion.

[00:12:53] Speaker 02:
but simply a different result.

[00:12:58] Speaker 01:
I mean, in True Grit, I know there was some discussion of the fact just based, excuse me, on the merits of the case that no reasonable patentee could assert the 261 patent claims against an alleged infringement.

[00:13:14] Speaker 01:
But did you also, didn't True Grit also have

[00:13:18] Speaker 01:
other litigation problems or misconduct that the district court also relied on in that case?

[00:13:24] Speaker 02:
There was a factual difference which we noted in a footnote in a brief, I believe footnote seven, where there was a discussion of whether because TrueGrip did not ship products but rather provided software, how the anti-phishing claim of ECT in that patent could apply to a non-product and that was an issue the district court

[00:13:48] Speaker 02:
in true grit brought up and then we also brought up the distinction in our case where we have the covenant not to sue that was not present in true grit but yet another factor that strengthened our Section 285 position.

[00:14:03] Speaker 02:
And also if I may because it was asked, the true grit decision is that Appendix 55, it begins there in the appendix and I believe my time is up.

[00:14:15] Speaker 01:
Any other questions?

[00:14:16] Speaker 01:
All right, we'll reserve the remainder of the time for rebuttal.

[00:14:19] Speaker 01:
Let's hear from the other side.

[00:14:22] Speaker 04:
May it please the court?

[00:14:25] Speaker 04:
This is Artish Ohanian, representing Electronic Communication Technology.

[00:14:33] Speaker 04:
I would begin by saying I think the court is correct to identify a number of things.

[00:14:40] Speaker 04:
Number one.

[00:14:41] Speaker 03:
In the red brief at 2425.

[00:14:47] Speaker 03:
You contend that the district court did consider the True Grit decision and its attorney's fees decision because it has some boilerplate language.

[00:14:59] Speaker 03:
Where on that page, you reference Appendix 1626, where on that page is True Grit mentioned?

[00:15:10] Speaker 03:
Well, True Grit is not mentioned explicitly.

[00:15:13] Speaker 03:
Well, then you just answered my question.

[00:15:15] Speaker 04:
There you go.

[00:15:17] Speaker 03:
Turning to the red brief at 28, you say that ECT, I'm quoting you, ECT admits that the district court used the word Lanham, but that the district court applied the right law.

[00:15:33] Speaker 03:
In addition to using the word Lanham, did the district court also cite and quote 15 USC section 1117?

[00:15:41] Speaker 03:
Yes.

[00:15:44] Speaker 03:
And that's part of the Lanham Act, right?

[00:15:47] Speaker 04:
Of course.

[00:15:48] Speaker 03:
Does 1117 apply to patent infringement cases?

[00:15:53] Speaker 04:
It does not.

[00:15:54] Speaker 04:
But I do want to reiterate that they applied the correct standard.

[00:16:01] Speaker 04:
But you agree they used the wrong statute.

[00:16:05] Speaker 04:
Perhaps there was a typographical error in the order.

[00:16:08] Speaker 03:
But they considered.

[00:16:10] Speaker 03:
But they considered.

[00:16:11] Speaker 03:
Council, don't speak when the court is speaking.

[00:16:16] Speaker 04:
No, I'm sorry.

[00:16:16] Speaker 03:
I'm sorry.

[00:16:17] Speaker 03:
OK.

[00:16:19] Speaker 03:
You say it was a typographical error when the district court both used the word Lanham Act and used the correct statutory number for the Lanham Act.

[00:16:35] Speaker 03:
Do you think that was a typo?

[00:16:41] Speaker 04:
We do, Your Honor.

[00:16:42] Speaker 04:
I think it's harmless error at the worst because the standard is exactly the same that they applied to this case.

[00:16:50] Speaker 03:
Tell me how you think it was a typographical error.

[00:16:56] Speaker 04:
Well, I think perhaps a clerk pulled up a case and they wrote an order, and perhaps it was a mistake.

[00:17:03] Speaker 04:
But it's a mistake that doesn't make any difference to the analysis applied by the court in this case.

[00:17:11] Speaker 04:
applied to the totality of the circumstances in this matter.

[00:17:18] Speaker 03:
Go ahead.

[00:17:22] Speaker 03:
Go ahead.

[00:17:24] Speaker 03:
Yes?

[00:17:26] Speaker 03:
Yes, can you hear me?

[00:17:26] Speaker 03:
Go ahead.

[00:17:27] Speaker 04:
Keep going.

[00:17:29] Speaker 04:
Okay.

[00:17:31] Speaker 04:
I don't find that there's any error in the judge's analysis on either the standard

[00:17:41] Speaker 04:
for applying Section 285 in this matter?

[00:17:46] Speaker 00:
We have a situation here in which the other district court in the True Grit case made a finding that no reasonable patentee would have brought the suit there.

[00:17:58] Speaker 00:
That's not the entire basis for the decision, but that there is a finding to that effect, which arguably is collateral estoppel, though that's not argued here.

[00:18:08] Speaker 00:
But given that direct inconsistency, don't you think,

[00:18:11] Speaker 00:
that maybe the district court here should have said something about why it reached a different conclusion than the true grit district court did?

[00:18:22] Speaker 04:
Well, Your Honor, I cannot ask the court in hindsight to say whether they showed their work in a way that is perfect.

[00:18:35] Speaker 04:
But I would like to take a few minutes to turn to the true grit

[00:18:41] Speaker 04:
and demonstrate the flaws in the analysis in that case that demonstrate the proper administration of the standard by Judge Mara in this case.

[00:19:01] Speaker 01:
But isn't that a problem in and of itself?

[00:19:04] Speaker 01:
We are here as an appellate court of an abuse of discretion standard.

[00:19:09] Speaker 01:
And you're wanting to make an argument to us and wanting us to review and opine on a question where we don't have anything below about what the district courts thought about these arguments.

[00:19:22] Speaker 01:
So you think this is the way the system's supposed to work here?

[00:19:25] Speaker 04:
Well, Your Honor, to some extent, I do.

[00:19:30] Speaker 04:
Because if we were to take every nuance underneath

[00:19:39] Speaker 04:
an order that every district court has to make, then I think we would be bogged down quite a bit.

[00:19:48] Speaker 00:
This is not a nuance.

[00:19:51] Speaker 00:
It's a directly inconsistent finding in true grit that no reasonable patentee would have brought this case.

[00:19:59] Speaker 00:
It's directly inconsistent with what the district court said here, right?

[00:20:07] Speaker 04:
Well, yes, but there's two things that we need to look at.

[00:20:13] Speaker 04:
Number one, the true grit finding is based on cases in another jurisdiction with another case doing analogous findings on patents that are different from this case.

[00:20:34] Speaker 00:
Well, wait, I don't understand that.

[00:20:35] Speaker 00:
Both cases involve claim 11, right?

[00:20:39] Speaker 00:
Yes.

[00:20:40] Speaker 00:
And so the statement that no reasonable patentee would have brought the case covers the same claim that's at issue here.

[00:20:50] Speaker 04:
Well, we understand that.

[00:20:51] Speaker 04:
But there is no rule 101 finding in the TrueGrid case.

[00:20:59] Speaker 04:
In TrueGrid, this is dicta in the

[00:21:03] Speaker 04:
or Judge Standis' order.

[00:21:09] Speaker 00:
Dixon?

[00:21:13] Speaker 04:
I don't understand that.

[00:21:16] Speaker 04:
There's no finding with respect to 101 in this case out of the Central District of California.

[00:21:26] Speaker 04:
In fact, this case is very, very different for a number of reasons.

[00:21:35] Speaker 01:
Wait, didn't the district court in True Grit talk about how no reasonable plaintiff would have brought this under 101?

[00:21:45] Speaker 01:
Am I thinking of a different case?

[00:21:47] Speaker 01:
Did the court not talk about that?

[00:21:50] Speaker 04:
No, absolutely they did.

[00:21:52] Speaker 04:
But they relied on cases that are relying on other patents in other maps.

[00:22:03] Speaker 01:
But they were talking about the same claim as Judge Seitz pointed out, right?

[00:22:08] Speaker 01:
I don't understand what you're saying.

[00:22:10] Speaker 01:
They relied on other cases?

[00:22:15] Speaker 04:
Let me point out, I think on page 3, appendix 1608, although this court has not reviewed the complaints and documents of each of these cases,

[00:22:30] Speaker 04:
It is the court's understanding that all the related cases concerning patents issued for the same original specification at issue here.

[00:22:40] Speaker 04:
And then it says TrueGrid opposed the patenting claim, which ECT accused TrueGrid of infringing in it for purposes of Section 101 analysis, because all the claims were based on the same specification.

[00:23:00] Speaker 04:
This is a continuation.

[00:23:02] Speaker 04:
It's axiomatic that the claims are going to be different.

[00:23:05] Speaker 04:
And the specification is not the analysis that needs to be used.

[00:23:10] Speaker 04:
If it's the same specification, does it mean it's the same patent?

[00:23:13] Speaker 00:
I don't understand what you're saying.

[00:23:15] Speaker 00:
It's the same claim that's involved in both cases.

[00:23:19] Speaker 00:
But it's not the same claim, Your Honor.

[00:23:22] Speaker 00:
That's not true.

[00:23:23] Speaker 00:
Each case involved claim 11, right?

[00:23:26] Speaker 04:
Oh, it's the same claim being brought by

[00:23:29] Speaker 04:
Yes, yes, by ECG.

[00:23:33] Speaker 04:
But the methods for analysis are very, very different.

[00:23:41] Speaker 04:
And Section 101 is not presented in this case, True Bridge.

[00:23:48] Speaker 04:
Whereas Judge Maura had this case for nearly three years, had a 101 hearing.

[00:23:56] Speaker 01:
uh... looked at the party's behavior in this case and uh... i'd like to uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh...

[00:24:25] Speaker 01:
101 case, but that it may have been more fulsome and difficult, even if he was eventually correct in his 101 analysis.

[00:24:38] Speaker 01:
I don't see how having it three years helps you.

[00:24:43] Speaker 01:
It took him three years to resolve this case.

[00:24:46] Speaker 04:
Well, I think he's the judge in this matter who can

[00:24:54] Speaker 04:
provide whether there's a exceptionality in this case.

[00:25:02] Speaker 01:
How long did he have for the attorney's fees motion?

[00:25:08] Speaker 04:
I can't answer that in days, but months, I believe.

[00:25:13] Speaker 04:
And I'm sure Mr. Friedland will respond to that.

[00:25:19] Speaker 03:
Let me ask, this is Judge Wallach.

[00:25:22] Speaker 03:
Let me ask

[00:25:23] Speaker 03:
Reading from true grit, OK?

[00:25:26] Speaker 03:
Tell me how it differs from the facts in this case.

[00:25:32] Speaker 03:
I'm reading the list.

[00:25:36] Speaker 03:
Now I'm quoting.

[00:25:37] Speaker 03:
The listed inventor and prosecuting attorney of the 261 patent is Scott A. Horsmeyer.

[00:25:43] Speaker 03:
According to the Florida Secretary of State, Peter Serrani is the manager of ECT.

[00:25:52] Speaker 03:
While ECT is the assignee of the patent, the original applicant was its predecessor entity, Eclipse.

[00:26:00] Speaker 03:
Between 2011 and 2015, Eclipse filed complaints against more than 150 defendants, alleging infringement of the claims from patents in the family to which the patent and suit belongs before Eclipse changed its name to ECT.

[00:26:17] Speaker 03:
In 2017 and 2018, three declaratory judgment plaintiffs, in addition to TruGrid, brought suit against ECT.

[00:26:27] Speaker 03:
The complaints in those actions attached generic nuisance value demand letters relating to the 261 patent that are similar to the demand letters sent by ECT to TruGrid.

[00:26:38] Speaker 03:
Is that all the same in this case?

[00:26:43] Speaker 04:
Well, I don't know that that's all the same.

[00:26:45] Speaker 04:
And to be perfectly honest... Oh, wait, wait, wait, wait, wait.

[00:26:49] Speaker 03:
Counsel, how does it differ?

[00:26:50] Speaker 03:
Is the generic letter different?

[00:26:56] Speaker 04:
I'm sure the generic letter is very similar.

[00:26:59] Speaker 04:
I'm sure it's different to some extent.

[00:27:02] Speaker 04:
But that does not mean that it is in nuisance value losses.

[00:27:09] Speaker 04:
You know, and I think we take a little bit of exception with that characterization.

[00:27:16] Speaker 03:
Really?

[00:27:18] Speaker 04:
Yes.

[00:27:19] Speaker 03:
On what basis?

[00:27:19] Speaker 04:
Because TrueGrid sued ECT.

[00:27:26] Speaker 04:
ECT did not sue TrueGrid.

[00:27:31] Speaker 03:
My understanding there was there was a settlement offer for a walk away

[00:27:40] Speaker 03:
And Truegate said, no, we want our attorney space.

[00:27:42] Speaker 03:
Is that right?

[00:27:47] Speaker 04:
Yes, in the California case.

[00:28:01] Speaker 01:
Anything else, counsel?

[00:28:06] Speaker 04:
No, I think thank you for the time.

[00:28:12] Speaker 01:
Okay.

[00:28:15] Speaker 01:
Let's turn back to rebuttal, council.

[00:28:20] Speaker 02:
Thank you, your honor.

[00:28:23] Speaker 02:
If I may address a couple of issues that just came up in my opposing council's argument.

[00:28:30] Speaker 02:
With respect to the typographical error of the Lanham Act, the Lanham Act and 15 USC section 1117.

[00:28:39] Speaker 00:
You need to get closer to the microphone.

[00:28:42] Speaker 02:
I'm sorry, is that better?

[00:28:44] Speaker 00:
Yes.

[00:28:45] Speaker 02:
I'm sorry.

[00:28:46] Speaker 02:
The Lanham Act specifically by name and 15 USC 1117 by statute are mentioned four times in one paragraph in the two and a half page order so.

[00:28:58] Speaker 03:
We're aware of that.

[00:28:59] Speaker 02:
Okay.

[00:29:01] Speaker 02:
With respect to this case and True Gret, there's no question that we're talking about the same patent, the same claim, claim 11.

[00:29:10] Speaker 02:
and the litigation practices of ECT that were addressed by the District Court in the Central District of California and were not written about by the District Court in this case, either in the order denying the 285 motion or the request for reconsideration.

[00:29:32] Speaker 01:
You can continue.

[00:29:33] Speaker 02:
Finish your talk.

[00:29:38] Speaker 02:
made available to the court the TruGrid decision and the conclusion that was reached in TruGrid that no reasonable patent litigant would have brought this lawsuit in view of the vulnerability of claim 11 of the 261 patent at the time that ECT was asserting it.

[00:29:58] Speaker 02:
Since I'm out of time, I will say thank you and... Judges, anything else?

[00:30:06] Speaker 01:
No, nothing.

[00:30:07] Speaker 01:
Okay, thank you.

[00:30:09] Speaker 01:
We thank both sides and the case is submitted.