[00:00:00] Speaker 04:
We'll hear argument now in number 19, 2360, fast ship LLC versus United States, Mr. Bolden.

[00:00:09] Speaker 01:
Good morning, and may it please the court?

[00:00:12] Speaker 01:
This case should be remanded because the trial court.

[00:00:14] Speaker 04:
Mr. Bolden, before you start, are you aware of this court's recent decision in hit-can suit?

[00:00:23] Speaker 01:
Yes, I am, Your Honor.

[00:00:24] Speaker 04:
I'm going to ask the same question to opposing counsel, why you didn't file a 28J letter calling our attention to it?

[00:00:33] Speaker 04:
Yeah.

[00:00:34] Speaker 01:
Your Honor, the reason we did not is that both parties had indicated that hit-consuit was a case that could affect this decision.

[00:00:46] Speaker 01:
And both parties cited hit-consuit.

[00:00:50] Speaker 01:
Of course, the trial court also

[00:00:53] Speaker 01:
relied heavily on hit-consuit, and perhaps we incorrectly assumed that it was not necessary to file a notice.

[00:01:01] Speaker 04:
You incorrectly assumed that it was not necessary to file, and you both should have done it.

[00:01:07] Speaker 04:
So let's move on.

[00:01:09] Speaker 04:
But next time, it's not an excuse that the lower court decision was at issue.

[00:01:15] Speaker 04:
You need to advise this court of pertinent decisions that come down, particularly something as central as this one.

[00:01:23] Speaker 04:
I assume that your position is that HITConsuit disposes of the pre-litigation conduct aspect of this, right?

[00:01:32] Speaker 01:
Yes, that is our position.

[00:01:34] Speaker 04:
And where does that leave us?

[00:01:36] Speaker 04:
What should we do now?

[00:01:38] Speaker 01:
Well, if your honor allows, I'd like to talk briefly about what HITConsuit does teach and how it directs where we should go with respect to the argument.

[00:01:50] Speaker 01:
So what Hitconsuit and Broad Avenue Laundry teach is... Well, I'm not sure.

[00:01:59] Speaker 04:
This decision that we're reviewing is braced in large part on pre-litigation conduct.

[00:02:04] Speaker 04:
Hitconsuit says that's not relevant.

[00:02:06] Speaker 04:
Why do we need to talk about it anymore?

[00:02:09] Speaker 01:
Your Honor, the reason we do is because both Hitconsuit and Broad Avenue Laundry set forth a two-step process for approaching these kind of questions.

[00:02:20] Speaker 01:
The first step of the process is what is the government's position in litigation?

[00:02:27] Speaker 01:
And pre-litigation conduct doesn't play into that.

[00:02:31] Speaker 01:
But then for the second step of the process, the court has to look at whether the government's litigation position was substantially justified by the facts and law based on relevant facts that have a nexus with the litigation

[00:02:45] Speaker 01:
position.

[00:02:45] Speaker 01:
And so given that framework, we can look at exactly how the trial court erred in this case and what issues should be remanded back to the trial court in this case.

[00:02:58] Speaker 04:
I frankly don't understand what you're saying at all.

[00:03:01] Speaker 04:
The Court of Federal Claims relied on pre-litigation conduct.

[00:03:06] Speaker 04:
Hittkensoot says that's not relevant.

[00:03:08] Speaker 04:
So why don't we just move on then and determine whether the other conduct

[00:03:14] Speaker 04:
would justify a fee award and a remand.

[00:03:17] Speaker 04:
Isn't that the issue?

[00:03:19] Speaker 01:
Yes, Your Honor.

[00:03:20] Speaker 01:
And so, and just to clarify, what the trial court found was there were four different sources of conduct which it used to formulate the government's position.

[00:03:31] Speaker 01:
The first two, which related to Lockheed's procurement conduct and the Navy's response to the administrative claim, we contend those are out under hit-consue.

[00:03:41] Speaker 01:
And so the court should...

[00:03:44] Speaker 02:
This is Judge Wallach.

[00:03:45] Speaker 01:
Sure.

[00:03:46] Speaker 02:
I want to clarify something.

[00:03:48] Speaker 02:
Would you agree that given hit-consuit, if we find that the court below articulated sufficient reasons once litigation started for awarding fees, that we don't have to remand?

[00:04:12] Speaker 01:
Your Honor, that is the holding of hit-consuit and I would agree that the court does have that power.

[00:04:18] Speaker 01:
However, I disagree that the court should do that in this particular case.

[00:04:22] Speaker 01:
There are some great distinctions between this decision and hit-consuit in that regard.

[00:04:29] Speaker 02:
I understand, but you've agreed with me on that.

[00:04:36] Speaker 01:
Yes, I have agreed with you on that.

[00:04:39] Speaker 04:
Well, I'm not sure what the that is.

[00:04:42] Speaker 04:
I mean, you're not agreeing that this decision can be sustained based on the post litigation conduct, right?

[00:04:50] Speaker 01:
Right.

[00:04:51] Speaker 01:
In this particular case, there are reasons to go ahead and remand the decision back down to the trial court.

[00:05:00] Speaker 01:
Reasons that didn't exist in the Hickens suit decision.

[00:05:03] Speaker 01:
But I'm agreeing with the principle of law that, hypothetically speaking, the court

[00:05:09] Speaker 01:
could find that the court erred as far as determining the position of the United States, but still affirm if the court holds that the trial court didn't make any factual errors or legal errors with respect to the substantial justification question?

[00:05:28] Speaker 01:
No.

[00:05:28] Speaker 02:
In the red brief at 47, this is Judge Wallach.

[00:05:33] Speaker 02:
Fastship argues that the government never contested its liability for the action

[00:05:40] Speaker 02:
of its contractors and subcontractors, and that thus the government conceded the issue.

[00:05:47] Speaker 02:
Respond to that for me, okay?

[00:05:49] Speaker 01:
Yes, absolutely, Your Honor.

[00:05:52] Speaker 01:
What, what Fastship is referring to here is simply that under 1498, the government has waived sovereign immunity for itself, but also for limited actions

[00:06:04] Speaker 01:
limited authorized actions by its contractors.

[00:06:07] Speaker 01:
So to the extent that Lockheed used or manufactured the patented invention without authorization, the government has assumed that liability.

[00:06:18] Speaker 01:
We do not dispute that.

[00:06:20] Speaker 01:
That's a matter of law.

[00:06:21] Speaker 04:
The conduct of the contractor is pre-litigation conduct, right?

[00:06:26] Speaker 01:
The conduct of the contractor, Your Honor, relates to the act of infringement.

[00:06:31] Speaker 04:
It's pre-litigation conduct, right?

[00:06:35] Speaker 01:
It is pre-litigation conduct, Your Honor.

[00:06:37] Speaker 01:
And why are we talking about it?

[00:06:40] Speaker 04:
Why are we talking about it?

[00:06:42] Speaker 04:
Look, a court of federal claims has discretion as to whether to award a fee.

[00:06:49] Speaker 04:
We have a decision here, which we're reviewing, which in large part is based

[00:06:54] Speaker 04:
on pre-litigation conduct.

[00:06:56] Speaker 04:
And in that respect, it has to be set aside.

[00:07:00] Speaker 04:
And I think we can't tell what the Court of Federal Claims would have done if it could not have relied on pre-litigation conduct.

[00:07:09] Speaker 04:
So that would suggest that there has to be a remand to determine whether there's independent conduct after the litigation commenced that would justify in and of itself an award of attorney's fee.

[00:07:25] Speaker 01:
That's absolutely right, Your Honor.

[00:07:27] Speaker 04:
We spent 10 minutes here not getting to the heart of the matter, which is your challenge to these other findings that the district, the Court of Federal Claims made.

[00:07:39] Speaker 01:
Your Honor, I'm happy to go ahead and turn to those.

[00:07:42] Speaker 01:
So,

[00:07:43] Speaker 01:
There are two sources of conduct that the court cites in its decision that do relate to litigation conduct.

[00:07:51] Speaker 01:
That's the government's non-infringement position, the government's invalidity arguments.

[00:07:56] Speaker 04:
But we contend that the court... I thought the only two things that the court of federal claims relied on in awarding the fees, the only two kinds of post litigation conduct, I thought there were other things besides those two things

[00:08:13] Speaker 04:
that you're challenging.

[00:08:16] Speaker 01:
Those are the only two broad categories, Your Honor.

[00:08:20] Speaker 01:
There are specific findings within the umbrella categories of non-infringement and invalidity.

[00:08:30] Speaker 01:
And I'm happy to go ahead and address those.

[00:08:32] Speaker 01:
The court also addressed the government's position on damages and on summary judgment and found that the government's positions in both of those contexts was reasonable.

[00:08:43] Speaker 01:
but held, did not weigh those as strongly in light of its other sources of conduct, such as the pre-litigation conduct.

[00:08:53] Speaker 02:
Council.

[00:08:54] Speaker 02:
Yes.

[00:08:54] Speaker 02:
This is Judge Wallach.

[00:08:56] Speaker 02:
In the blue brief at 4748, the government argues that its use of imperial units in its interpretation of Figure 11, which is central to this, I think, was reasonable as a matter of fact.

[00:09:12] Speaker 02:
Am I correct on that?

[00:09:14] Speaker 01:
Yes, Your Honor.

[00:09:15] Speaker 02:
Didn't the government already unsuccessfully appeal this issue to this court?

[00:09:20] Speaker 01:
Your Honor, our argument is not a collateral attack or a further argument with respect to that.

[00:09:26] Speaker 01:
We've already paid the judgment.

[00:09:29] Speaker 01:
And our argument here is separate.

[00:09:32] Speaker 01:
The question for the court is whether the government's assertion of this non-infringement argument was reasonable in the first place, not whether it was correct.

[00:09:43] Speaker 01:
And we contend that argument was reasonable, especially in light of the court's prior decision in this case, where the court noted that power could be expressed in either metric or imperial units.

[00:09:58] Speaker 04:
OK, but what's the basis for saying that Figure 11 is expressed in imperial units?

[00:10:04] Speaker 04:
You make some argument about the specification, but the specification doesn't tell us, does it?

[00:10:12] Speaker 04:
whether this is imperial or metric units, right?

[00:10:16] Speaker 01:
Right.

[00:10:17] Speaker 01:
The specification only expresses power in terms of imperial units, but it does not specify what that y-axis in figure 11 is.

[00:10:28] Speaker 01:
And so what we've done- Wait, wait.

[00:10:30] Speaker 04:
Where does the specification tell you that power is expressed in imperial units?

[00:10:35] Speaker 04:
I see other parameters in the specification like feet.

[00:10:39] Speaker 04:
being expressed in imperial units, I don't see horsepower being expressed in imperial units in the specification clearly.

[00:10:48] Speaker 04:
Is there any such place?

[00:10:51] Speaker 01:
There is a reference, and I apologize.

[00:10:53] Speaker 01:
I don't have the column and line number, Your Honor, but it relates to a Kamiwa engine that is in horsepower.

[00:11:02] Speaker 01:
And that's a unit of power that is in horsepower, essentially.

[00:11:07] Speaker 01:
But the specification never identifies power in terms of kilowatts.

[00:11:14] Speaker 01:
And what we have put forth in our briefing is that fast ships pre-litigation documents that is submitted to the Navy show that it derived figure 11 from Navy documents that provided power in Imperial units.

[00:11:32] Speaker 01:
So our non-infringement position of

[00:11:36] Speaker 01:
asserting imperial units was a reasonable position.

[00:11:39] Speaker 00:
Mr. Baldwin, this is Judge Chen.

[00:11:43] Speaker 00:
This document that you raised in your briefing here and in your opposition to the fee motion below, did you rely on that document during the actual infringement trial?

[00:11:58] Speaker 01:
No, we did not, Your Honor.

[00:12:00] Speaker 00:
So I guess what I'm wondering is how can you rely on it and use it

[00:12:06] Speaker 00:
now to justify your litigation position when you never actually used it during the litigation?

[00:12:15] Speaker 01:
Your Honor, so the trial court under its power under Rule 54B split off the issue of fees and costs and reasonableness of the government's arguments to after trial.

[00:12:30] Speaker 00:
I guess what I'm trying to understand is it's almost like a hidden justification

[00:12:36] Speaker 00:
for your non-infringement position during the infringement trial that you're raising only for purposes of the fee motion?

[00:12:46] Speaker 01:
Your Honor, you have to understand the entire context of how this argument was first raised.

[00:12:52] Speaker 01:
The government had identified its reliance on imperial units more than 10 months before trial in its pre-trial contentions.

[00:13:01] Speaker 01:
And this is an issue that fascist bore the burden of proof on.

[00:13:04] Speaker 01:
There was no indication that FastShift was going to rely on metric units to support its infringement position until the post-trial reply brief.

[00:13:14] Speaker 01:
And so in hindsight, it would have been nice to have these documents admitted as evidence and we could have used them.

[00:13:23] Speaker 01:
But instead, we relied on the intrinsic record and we weren't able to put these documents before the court up until

[00:13:31] Speaker 01:
the time of when the reasonableness of the government's position became an issue.

[00:13:36] Speaker 02:
This is Judge Wallach.

[00:13:39] Speaker 02:
You had two experts, Dr. Stern and Mr. Blount.

[00:13:43] Speaker 02:
Did they ever address figure 11 in their expert reports?

[00:13:49] Speaker 01:
No, Your Honor, neither of them did.

[00:13:54] Speaker 01:
Your Honor, the infringement

[00:13:58] Speaker 01:
position we think was an abuse of discretion or the court's findings with respect to that.

[00:14:03] Speaker 01:
With respect to the government's invalidity position, the trial court also abused its discretion in holding that the government unreasonably proffered an expert with extraordinary skill and this is Mr. Blunt as the court just referred to.

[00:14:17] Speaker 01:
This court has held that a person of ordinary skill is just a theoretical construct and extraordinary skill objections are meritless.

[00:14:26] Speaker 01:
This is the Endress and Hauser and Norgren cases that we cite in our briefing.

[00:14:31] Speaker 01:
The trial court itself even appeared to share the same view, at least through trial.

[00:14:37] Speaker 01:
It denied fascist motion and limine on that basis and admitted Mr. Blunt as an expert, then repeatedly cited to his testimony.

[00:14:48] Speaker 01:
The trial court may have exercised its discretion in deciding not to give substantial weight to Mr. Blunt's invalidity opinion

[00:14:55] Speaker 01:
But the trial court abused its discretion in holding that Mr. Blunt's extraordinary skill showed that the government should have never called him in the first place.

[00:15:05] Speaker 01:
Unless the court has further questions at this time, I'll reserve the remainder of my time for rebuttal.

[00:15:10] Speaker 02:
Well, I have further questions.

[00:15:13] Speaker 02:
Go ahead.

[00:15:14] Speaker 02:
FastShip alleges in the red brief of 52 that they say the government's experts didn't plot power speed data

[00:15:25] Speaker 02:
on to figure 11.

[00:15:28] Speaker 02:
And the government attorneys did it.

[00:15:32] Speaker 02:
They're making a lawyer argument and saying this is only a lawyer argument.

[00:15:40] Speaker 02:
And I understand your position that it was a question of timing as far as figure 11.

[00:15:48] Speaker 02:
But how do you deal with

[00:15:51] Speaker 02:
their position that, hey, this is only attorney argument.

[00:15:58] Speaker 01:
Your Honor, so the way that we deal with that, as you note, was that we are the party that did not bear the burden of proof.

[00:16:05] Speaker 01:
And so we were showing, as a matter of the intrinsic evidence, and the lines that are drawn on Figure 11 are drawn from evidence that is in the record.

[00:16:15] Speaker 01:
Ultimately, what happened is that Fastship responded in its

[00:16:21] Speaker 01:
post-trial reply brief with its own figure, and that is the figure that the trial court adopted and relied upon in coming to its conclusion with respect to the use of metric units for non-infringers.

[00:16:37] Speaker 01:
But yes, the figure that we provided 10 months before trial in our pre-trial brief and at post-trial was figure 11.

[00:16:48] Speaker 01:
It was drawn from

[00:16:50] Speaker 01:
evidence, but the plotting on Figure 11 was done by attorneys.

[00:16:55] Speaker 02:
Then one last question.

[00:16:57] Speaker 02:
This is Judge Wallach.

[00:16:58] Speaker 02:
And that is, regarding Mr. Blount and the trial court's discounting of his expertise, what the fascist says

[00:17:15] Speaker 02:
Is it that the trial court discounted his testimony because his expertise was designing a yacht and not comparable to designing a warship?

[00:17:29] Speaker 02:
Not just that he was too qualified.

[00:17:33] Speaker 02:
What do you say to that?

[00:17:36] Speaker 01:
Your Honor, I think fascism takes the trial court statement out of context.

[00:17:41] Speaker 01:
But the issue of a yacht, the word yacht is not part of the claim.

[00:17:46] Speaker 01:
In fact, the claim itself just claims a vessel with certain specifications and certain characteristics.

[00:17:55] Speaker 01:
So the whole idea of a yacht, that he had designed a yacht and therefore was unqualified to be an expert, that just has no merit.

[00:18:10] Speaker 01:
It may be that a yacht has a smaller ton displacement.

[00:18:14] Speaker 01:
And the patent claims do have an element, a limitation for ton displacement.

[00:18:23] Speaker 01:
But Blunt explained in his testimony how ships could be scaled up.

[00:18:28] Speaker 01:
In fact, that was part of his obviousness discussion.

[00:18:32] Speaker 01:
So Blunt was very much focused on the claims.

[00:18:35] Speaker 01:
He wasn't focused on any embodiment in the patent.

[00:18:39] Speaker 01:
And therefore, his testimony was reasonable for the government to proffer in the first place.

[00:18:46] Speaker 04:
Okay.

[00:18:48] Speaker 04:
Thank you, Mr. Bolden.

[00:18:49] Speaker 04:
We'll give you two minutes for rebuttal.

[00:18:52] Speaker 04:
Thank you.

[00:18:53] Speaker 04:
Mr. Hogue.

[00:18:55] Speaker 03:
Thank you, Your Honor.

[00:18:56] Speaker 03:
May it please the Court.

[00:18:58] Speaker 03:
I did want to start out with the Hansard decision.

[00:19:03] Speaker 04:
holding in Kansas was that the position of the United States refers to the same thing to you that I said, the government council, you also should have sent us a 28 J letter, particularly since this decision undercut in significant part your arguments in the, in the red brief.

[00:19:24] Speaker 03:
You're absolutely, you're absolutely right, your honor.

[00:19:27] Speaker 03:
Uh, and, uh, we just blew that.

[00:19:30] Speaker 03:
And that's all there is to it.

[00:19:32] Speaker 03:
We had referred to it.

[00:19:33] Speaker 03:
We went through the oral hearing.

[00:19:34] Speaker 03:
We've read the decision.

[00:19:37] Speaker 03:
And we didn't do it.

[00:19:37] Speaker 04:
All right.

[00:19:39] Speaker 04:
Well, I appreciate that.

[00:19:40] Speaker 04:
Where does that leave us?

[00:19:41] Speaker 04:
That leaves us determining whether there are other reasons that would support an award of attorney's fees other than pre-litigation conduct, correct?

[00:19:55] Speaker 03:
That is incorrect, your honor.

[00:19:57] Speaker 03:
The holding in hit Kansas is that the positions refer in the, in 1498 referred to the litigation positions.

[00:20:06] Speaker 03:
But, uh, the holding is that, uh, the claims court is can look to the facts of the individual case, including facts that occurred pre litigation.

[00:20:17] Speaker 04:
And if you think about it, your honor, nobody's disputing that.

[00:20:23] Speaker 04:
But a lot of the decision here is based on conduct pre-litigation.

[00:20:29] Speaker 04:
That can't be considered in awarding attorney's fees under 285, right?

[00:20:34] Speaker 03:
Pre-litigation facts can be considered to the extent that conduct is a fact, yes, it can.

[00:20:43] Speaker 03:
But almost all of the decision.

[00:20:46] Speaker 04:
What do you mean?

[00:20:46] Speaker 04:
Wait, wait.

[00:20:47] Speaker 04:
The conduct, the pre-litigation conduct cannot be considered

[00:20:52] Speaker 04:
as a ground for awarding fee.

[00:20:54] Speaker 04:
It may shed light on litigation conduct, but the existence of pre-litigation misconduct cannot support an award of attorney fees under 285, right?

[00:21:06] Speaker 03:
That is correct, Your Honor.

[00:21:07] Speaker 03:
I agree with that.

[00:21:08] Speaker 03:
And that's what the decision says.

[00:21:11] Speaker 03:
But I'm here to say that the positions that are grounded on this fee award are

[00:21:17] Speaker 03:
the positions of infringement and invalidity during the litigation.

[00:21:21] Speaker 03:
And, and there are facts that occurred, all the facts that occurred pre commencement, uh, bear on that, on those two issues that are before you today.

[00:21:31] Speaker 03:
And the two issues before you today are figure 11 and Mr. Blount.

[00:21:36] Speaker 03:
Now the judge had much more, uh, he said that was unreasonable.

[00:21:40] Speaker 03:
That was, did not, uh, was not substantially justified.

[00:21:44] Speaker 03:
The government has just focused on figure 11.

[00:21:47] Speaker 03:
And this court has already ruled that the government's argument on figure 11 is imperial units was attorney argument.

[00:21:55] Speaker 03:
They chose to use different units.

[00:21:59] Speaker 04:
Before you get to that, how do I know that the Court of Federal Claims would have awarded fees if it had been aware of the hit cancer decision?

[00:22:11] Speaker 03:
Because it's specifically

[00:22:17] Speaker 03:
sets out in its decision things that are before commencement and things that are after commencement.

[00:22:25] Speaker 03:
And it says that, for example, in Appendix 16, the government's positions after the start of litigation create similar problems for its attempt to establish reasonable justification.

[00:22:40] Speaker 03:
And that's every position that the government had after the start of the litigation.

[00:22:45] Speaker 03:
Every single position.

[00:22:47] Speaker 03:
They had no substantial reasonable justification.

[00:22:52] Speaker 03:
All of them were addressed by the judge.

[00:22:55] Speaker 03:
There's nothing left.

[00:22:56] Speaker 03:
There's nothing on liability.

[00:22:59] Speaker 04:
He never says that if I put to one side the pre-litigation misconduct, that these other things that happened during the litigation would be sufficient to justify, to cause me to award fees, right?

[00:23:14] Speaker 03:
He didn't use those words, but his meaning is very clear that he set before and after, and he sort of knew what was going to happen.

[00:23:23] Speaker 03:
You could see that in his decision.

[00:23:24] Speaker 03:
And then he addressed that, these positions after.

[00:23:28] Speaker 03:
But what he did, your honor, was he addressed every single position of the government in the litigation and said it was not reasonable conduct.

[00:23:37] Speaker 03:
It was not substantially justified.

[00:23:39] Speaker 03:
Every single one.

[00:23:40] Speaker 00:
This is Judge Chen speaking.

[00:23:42] Speaker 00:
This is Judge Chen.

[00:23:44] Speaker 00:
What about the 103 invalidity defense?

[00:23:47] Speaker 00:
As I understand Trevuletto's opinion, he criticizes that 103 defense for using an expert with extraordinary skill.

[00:24:00] Speaker 00:
Now let's assume we take that away from you, then is there anything else that really tells us that there was something unreasonable about the government's 103 defense?

[00:24:12] Speaker 03:
Well, yes, Mr. Blount's feasibility study was the issue, not his testimony.

[00:24:20] Speaker 03:
And Judge Leto's decision is on the feasibility study.

[00:24:25] Speaker 03:
Mr. Blount wrote a feasibility study in 1989, and it discussed and combined several, seven references

[00:24:34] Speaker 03:
And the government said that's proof that one of ordinary skill in the art would combine those references and that's where the disagreement came in because Mr. Blount who wrote that article at the time was of extraordinary abilities.

[00:24:51] Speaker 03:
That was not a person of ordinary skill in the art that wrote that paper and combined those references.

[00:24:57] Speaker 00:
Right, and I'm saying what if we take that away from you?

[00:24:59] Speaker 00:
What if we take away from you the view that

[00:25:05] Speaker 00:
relying on an expert with extraordinary skill is somehow improper.

[00:25:11] Speaker 03:
Well, if you take it away from me, then you have left that the feasibility study itself was not prior art.

[00:25:19] Speaker 03:
And that's at Appendix 171, footnote 31.

[00:25:22] Speaker 03:
The feasibility study of Mr. Blount was simply not prior art.

[00:25:26] Speaker 03:
It was confidential and was proprietary.

[00:25:28] Speaker 00:
I'm trying to figure out based on the content of the judge's fee decision, though.

[00:25:35] Speaker 00:
Where does he say that there's something unreasonable and defective and seriously flawed with Mr. Blunt's analysis?

[00:25:52] Speaker 03:
Well, he says that the design work he was conducting was for a yacht not comparable to a larger ship.

[00:26:01] Speaker 03:
And then while working at the same time, the inventor was conducting experiments and obtaining the patents.

[00:26:09] Speaker 04:
Where in the fee decision does he say that relying on this feasibility study was unreasonable apart from the extraordinary skill point?

[00:26:22] Speaker 03:
He says it on Appendix 17 at the bottom of the page.

[00:26:26] Speaker 03:
and the design work he was conducting for a yacht not comparable to a larger ship.

[00:26:34] Speaker 03:
There's that.

[00:26:35] Speaker 03:
And the fact that he also goes back and says it's proprietary design, that means that it wasn't prior art.

[00:26:41] Speaker 03:
It was confidential.

[00:26:44] Speaker 03:
And you have to understand that when this is in the context of the case,

[00:26:49] Speaker 03:
The yacht was not in the size regime, and the United States Navy's position at that time, and Royal Navy's position, is that that ship won't scale.

[00:26:58] Speaker 03:
That design will not scale.

[00:27:00] Speaker 03:
It violates the laws of physics.

[00:27:05] Speaker 03:
It violates the square cube law.

[00:27:07] Speaker 03:
And so that's the context for that.

[00:27:10] Speaker 03:
But that report of his was not prior art.

[00:27:14] Speaker 03:
It was written by an extraordinarily skilled individual.

[00:27:18] Speaker 04:
You're saying these things, but Judge Leto didn't say them.

[00:27:22] Speaker 03:
He did.

[00:27:22] Speaker 03:
I'm sorry, Your Honor, but he's talking about that in this last paragraph on appendix page 17, which is page 17 of his decision.

[00:27:38] Speaker 04:
Just the language, the design work, he was conducted for a yacht not comparable to a larger ship.

[00:27:44] Speaker 04:
Yes.

[00:27:45] Speaker 03:
Well, he's also citing his own decision at pages 618 to 621, 619 of his previous decision, and 620.

[00:27:57] Speaker 03:
All of that is that it was not reliable.

[00:28:04] Speaker 03:
It was not substantially justified to put on a case like that for the government to say that that article... Is that what Judge Leto said?

[00:28:13] Speaker 00:
619 or 620?

[00:28:14] Speaker 03:
619 or 620.

[00:28:21] Speaker 03:
Well, he goes into great detail.

[00:28:24] Speaker 03:
Is that what he said?

[00:28:27] Speaker 00:
It's a yes or no question, really.

[00:28:30] Speaker 03:
I think, in effect, yes, that's exactly what he said.

[00:28:33] Speaker 03:
He went into great detail what was wrong with Mr. Blount.

[00:28:36] Speaker 00:
He said it was fatally flawed?

[00:28:40] Speaker 03:
What's that?

[00:28:41] Speaker 03:
I'm sorry.

[00:28:42] Speaker 00:
You're telling me

[00:28:43] Speaker 00:
that in the underlying decision, Judge Leto was very critical of Mr. Blunt's feasibility analysis.

[00:28:52] Speaker 00:
Yes, he was.

[00:28:53] Speaker 00:
He said something very close to this being hopelessly flawed.

[00:29:00] Speaker 00:
Now I'm trying to figure out, I don't have it in front of me, where is it where it reveals and illustrates to us that

[00:29:09] Speaker 00:
Although he doesn't quite say it here, he said it there at 619-620 that this feasibility analysis never should have been put on.

[00:29:28] Speaker 03:
Well, he says it on Appendix 171.

[00:29:31] Speaker 03:
He talks about the feasibility study.

[00:29:35] Speaker 03:
But he wasn't doing the analysis of whether or not that's reasonably substantially justified in his merits decision.

[00:29:44] Speaker 04:
Well, that's exactly the point.

[00:29:46] Speaker 03:
That's exactly the point.

[00:29:48] Speaker 04:
We can't say that his fee decision was correct because he ruled against the government in the merits decision.

[00:29:57] Speaker 04:
It's a different question.

[00:30:04] Speaker 03:
Well, Your Honor, he goes and says that Mr. Brunt was designing a yacht.

[00:30:11] Speaker 03:
It's not in the size regime of the claims.

[00:30:17] Speaker 03:
It was not prior art.

[00:30:21] Speaker 03:
He clearly says that.

[00:30:22] Speaker 03:
It was proprietary, and that was unreasonable in and of itself.

[00:30:27] Speaker 03:
If, if, if the court disagrees that this article was written, uh, that one of ordinary skill in the art, uh, would combine these seven references, then yes.

[00:30:37] Speaker 03:
But the fact of the matter is it was written by an extraordinarily skilled individual who wrote that article.

[00:30:43] Speaker 04:
Why don't you address figure 11?

[00:30:46] Speaker 03:
Figure 11, this court already ruled that the government's argument that figure 11 is that it is in Imperial units on the vertical axis was attorney argument.

[00:30:56] Speaker 03:
and rule that it is not evidence.

[00:30:59] Speaker 04:
What's wrong with attorney argument if it's based on the intrinsic record?

[00:31:04] Speaker 03:
It's not based on the intrinsic record.

[00:31:07] Speaker 03:
There's nothing in the intrinsic record that says that the units on the vertical axis are imperial units.

[00:31:12] Speaker 03:
And in fact, a scientist, an engineer looking at that knows that that is in metric units.

[00:31:19] Speaker 03:
That's first.

[00:31:21] Speaker 03:
Secondly, if you actually try and plot

[00:31:24] Speaker 03:
The ship that, the LCS-1 that has 108,000 horsepower and is certified to 49... Is the patent specification silent as to Imperial units?

[00:31:36] Speaker 00:
It never invokes Imperial units in any context?

[00:31:40] Speaker 03:
No, it is silent on the vertical units.

[00:31:45] Speaker 03:
It is silent.

[00:31:46] Speaker 00:
Wait, wait, wait.

[00:31:46] Speaker 00:
It doesn't say Imperial units.

[00:31:47] Speaker 03:
It doesn't use Imperial units anywhere in the specification?

[00:31:50] Speaker 03:
I'm sure it does on some times, Your Honor, but the fact of the matter is there are seven types of units or more for horsepower, and naval architects use all of them, depending on what they're talking about.

[00:32:04] Speaker 03:
A naval architect looking at Figure 11 knows that that's in metric units.

[00:32:08] Speaker 00:
Right, so if I understand it, the patent for some things speaks in terms of imperial units and for this vertical axis, it's using kilowatts.

[00:32:22] Speaker 03:
Is that right?

[00:32:23] Speaker 03:
That's correct, Your Honor.

[00:32:25] Speaker 00:
So it's not a cleanly uniform usage of one particular kind of unit.

[00:32:30] Speaker 03:
Correct, Your Honor.

[00:32:31] Speaker 03:
It depends on what the naval architect's formulas are.

[00:32:35] Speaker 03:
They are engineers and physicists, and they use all these different units interchangeably, depending on what the formula is.

[00:32:43] Speaker 03:
But that graph is clearly in metric units to a naval architect.

[00:32:48] Speaker 03:
It doesn't say so in the specification, right?

[00:32:51] Speaker 03:
But it's speaking to naval architecture, Your Honor.

[00:32:54] Speaker 04:
Don't interrupt.

[00:32:54] Speaker 04:
It says, it doesn't say that it's in metric units.

[00:33:00] Speaker 04:
measurements in the specification, such as feet, is in imperial units, correct?

[00:33:07] Speaker 04:
Yes.

[00:33:09] Speaker 04:
Well, so why is it so unreasonable to interpret the specification as being consistent in using imperial units for horsepower as well as other metrics?

[00:33:20] Speaker 03:
because it's absurd.

[00:33:22] Speaker 03:
You cannot graph the imperial units of the LCS-1 on that graph that the government is purporting to do.

[00:33:30] Speaker 03:
It's factually impossible.

[00:33:33] Speaker 03:
That's why it's absurd.

[00:33:34] Speaker 04:
Where does Judge Lettow say it's absurd?

[00:33:41] Speaker 03:
He says it on appendix page 117.

[00:33:45] Speaker 03:
And he says in the last second paragraph, into the last paragraph, the government, through its erroneous analysis, was essentially arguing that the design it chose for its efficiency was, in fact, not efficient.

[00:33:59] Speaker 04:
And that's... But that's the merits decision.

[00:34:02] Speaker 04:
Where does he say... That's the fees decision.

[00:34:04] Speaker 04:
Where does he say in the fees decision that the government's position is absurd?

[00:34:09] Speaker 03:
That is the fee decision, Your Honor.

[00:34:11] Speaker 03:
It's appendix page 17, second paragraph.

[00:34:14] Speaker 03:
That's the fee decision.

[00:34:15] Speaker 03:
17?

[00:34:17] Speaker 03:
Yes, Your Honor.

[00:34:26] Speaker 04:
It just talks about it being an erroneous analysis, right?

[00:34:29] Speaker 04:
It doesn't say it's a third.

[00:34:32] Speaker 03:
He says that the government was arguing that the design it chose for efficiency was in fact not efficient.

[00:34:40] Speaker 03:
That is what I am interpreting as absurd, and it is absurd.

[00:34:47] Speaker 03:
It's a factually impossible graph that the government did.

[00:34:49] Speaker 03:
Its attorney argument wasn't evidence.

[00:34:51] Speaker 03:
It's up against the inventor's testimony who conducted the experiments that said that graph.

[00:34:56] Speaker 03:
is in metric units, and that's the evidence.

[00:34:59] Speaker 03:
They want to mount and continue to argue that they're rational in saying that their attorney argument outweighs unrefuted testimony.

[00:35:08] Speaker 03:
There was never any testing or contradiction of that testimony that the units are in metric units.

[00:35:17] Speaker 04:
And that's basically why... Does my colleagues have any further questions?

[00:35:22] Speaker 04:
I think we're out of time.

[00:35:24] Speaker 04:
Thank you, Your Honor, and thank you, Mr. Hough.

[00:35:26] Speaker 04:
Mr. Baldwin, you have a minute.

[00:35:29] Speaker 01:
Yes, thank you, Your Honor.

[00:35:30] Speaker 01:
I'll use my time to briefly address a few points.

[00:35:33] Speaker 01:
Faship's attorney claims that the trial court addressed every issue and found them all unreasonable on behalf of the government.

[00:35:41] Speaker 01:
I direct the court's attention to Appendix 217, which is page 722 of Faship 5.

[00:35:50] Speaker 01:
And there the court finds that the government's position on damages and the government's position for summary judgment were reasonable but held that, and I quote this from the opinion, that does not change the fact that the positions it took with regards to infringement from the conduct of Lockheed Martin through trial were unreasonable.

[00:36:10] Speaker 01:
So there were positions that the court found to be reasonable but just weighted them less strongly in light of some of the pre-litigation sources of conduct.

[00:36:19] Speaker 01:
That's error.

[00:36:21] Speaker 01:
Fast Shift's attorney also claims that Blunt's testimony was error because it will not scale.

[00:36:31] Speaker 01:
The court should take a look at Appendix 7682 and Appendix 7018.

[00:36:36] Speaker 01:
There's testimony from both Blunt and the patentee explaining that scaling is something that can be done by a person of skill R. Finally, Fast Shift's attorney

[00:36:49] Speaker 01:
claims that scientists and engineers know that figure 11 is written in metric.

[00:36:56] Speaker 01:
I'd just like to point out appendix page 7223, where one of fascist experts assumed and believed that the patent was an imperial and thus changed his testimony to use imperial units.

[00:37:12] Speaker 01:
Other than that, for those reasons, the court should vacate the trial court's judgment

[00:37:19] Speaker 01:
and remand it to properly consider whether the position of the United States was substantially justified in this action.

[00:37:24] Speaker 01:
Thank you.

[00:37:26] Speaker 04:
All right.

[00:37:26] Speaker 04:
Thank you, Mr. Bolden.

[00:37:27] Speaker 04:
Thank you, Mr. Ho.

[00:37:28] Speaker 04:
The case is submitted.