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We have a fairly busy morning today.

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We have four cases for oral argument.

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We had one case submitted on the briefs.

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Normally, we sit in panels of three, and JoJo Malley is a member of this panel.

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But she's not able to join us today, but she is participating electronically.

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And her views, well, I have a couple of questions that come from her.

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And she has participated in all the deliberations and all of the aspects of the case.

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So that being the case, can you hand me a sheet that's got the breakdown?

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Thank you.

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Okay.

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Our first case is Schwindleman versus Arkwright, advanced coding.

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And Mr. Hawks, you reserve four minutes of time for rebuttal.

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Is that correct?

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That's correct, Your Honor.

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Okay.

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We may begin.

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Thank you, Your Honor.

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May it please the court, Michael Hawes, for the appellant, Arkwright.

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Both the Minnesota Supreme Court and the... Mr. Hawes, regarding standing.

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Yes, Your Honor.

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It seems like both parties conflated Article III standing and statutory standing in their briefs.

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So I have some questions for both you and your friend on the other side.

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Does Ms.

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Schwendeman's Article III standing depend upon her statutory standing under 281?

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Your Honor, respectfully, I don't think statutory standing is an issue in this case, and I'd like to explain why.

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It's undisputed that years before this lawsuit was filed,

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the plaintiff transferred all rights in the patent to another company that is not a party to the case.

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So the only issue was whether any of those rights came back to the plaintiff.

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That's a constitutional standing issue.

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Obviously, this court has also looked at the question of what it is.

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Is there an injury for Article III standing solely based on the assignment issue?

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Well, Your Honor, where a party has no rights whatsoever in the patent, this court has said there's no Article 3 injury in fact in a patent infringement claim based on that patent.

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If we conclude that the hand-altered photocopy did not amount to an assignment, could we still find that Ms.

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Swenderman was a successor since the company that owned the patent is out of business?

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Well, Your Honor, we determine constitutional standing as of the day of the lawsuit.

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And of course, that company was not out of business as of the filing of the complaint.

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So in determining constitutional standing, we wouldn't look at those post-complaint factual, the change in the company's status months after the complaint.

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We'd be looking at it as of April 1, 2011, when the complaint was filed.

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And at that time, the company was in business.

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In fact, in September of that same year, the company, by its representative, did assign rights to these patents to the plaintiff in this case.

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Now that's months after the complaint, but the company was certainly still in business at that time because we know they filed an assignment and had some board notes and board resolutions that occurred at that time.

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But Your Honor, this court and the Supreme Court have been very clear, under Lujan and other cases, that you determine Article III constitutional standing as of the date of the complaint.

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In this case, that's in April.

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Go ahead, Your Honor.

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What's your position on the court's jurisdiction to reform the contract in light of Longstar?

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And there we made clear that the requirements of Section 281 are not jurisdictional.

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Doesn't that mean that

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that gentleman has standing just by virtue of her alleging that she's the owner?

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Your Honor, Lone Star Silicon Innovations addressed the situation where it was admitted that the plaintiff had rights.

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The question was whether they had all substantial rights, which, as you point out, is the prudential standing question.

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That is not this appeal.

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This appeal, it's undisputed that the plaintiff gave away all rights.

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all right and title years before this case.

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Was that an actual finding that, for example, there was a finding that she was not an exclusive licensee or had any other type of rights?

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The district court did indeed, in its opinion, find that in the March 31st of 2000, that the plaintiff assigned all rights to the non-party company

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So the only question was, did any of those rights ever come back?

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Because if they didn't, the plaintiff had no rights, which is a constitutional standing issue, not a prudential standing issue.

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And because of that, Lone Star Silicon Innovation's rule about what's needed when you are a person with some rights but not all substantial rights doesn't come into play.

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The plaintiff here didn't have any rights unless this court allows for a district court after the complaint has been filed

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to grant the equitable remedy of reformation, which is what the district court did.

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But that would be contrary to- Supposing we find that the hand-altered photocopy is sufficient to demonstrate the intent of the parties and so on, and is sufficient to support reformation.

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Respectfully, Your Honor, first of all, the issue of whether the interpretation of that hand-altered photocopy actually provided those rights is not on appeal.

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The district court found it did not.

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That's on page 13 of the record.

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And that has not been appealed.

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The other side has not challenged.

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Obviously, they're appealing different issues, but they have not challenged that determination.

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So from a matter of contract interpretation,

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The district court said, under Minnesota law, we cannot treat this as an assignment of the rights at issue.

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And I point you, Your Honor, to the appendix at page 13.

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If you'll turn with me there.

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The court said, and this is under validity of underlying assignment there, the court said,

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The purported assignment conveys to Schwindleman rights in the 984 application, not the 845 application, which is the one that would be needed.

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The court goes on to say that under Minnesota law, absent ambiguity, contract terms are given their plain and ordinary meaning, and the extrinsic evidence cannot be considered.

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And that is why, in the very next line, the court had to go on to reformation.

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Because from an interpretation point of view, it had found under Minnesota law, the rights were not transferred.

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So the question then becomes, can we, as a district court in its limited power under Article III, despite having under interpretation said those rights didn't transfer?

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Well, it's a court of equity.

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But as a court of equity, Your Honor, I would point you to the Luckett versus Delpark Supreme Court case that we cited in our blue brief, because there the Supreme Court was very specific about what a court of equity can and can't do in this situation.

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And I'll point out that there was no argument whatsoever in the red brief about that case.

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And that case is very important.

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If you look at page 41 of our brief, and this is quoting Luckett from page 511, it specifically said that a patentee may not make it a patent case conditioned on his securing equitable relief as to the contract.

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So what was going on in Luckett was that the former patentee was trying to get reassignment of the patent, so very similar to what we have here, and then was seeking an injunction, preliminary injunction, various other patent infringement relief.

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The Supreme Court said you can't do that.

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The law evolves in the last 80 years or so?

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90?

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Well, I think most, Your Honor, most patentees, when they face this issue, they refile the case.

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Right?

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They're standing and they refile.

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This was raised three months after the complaint.

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The complaint's filed in April.

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We put in an answer in July saying, look, you lack standing.

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They do new assignments, and we don't deny that the assignments they did in September were correct assignments, but they don't refile the case.

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We file a brief saying, look, standing is determined when the complaint is filed.

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They still don't refile the case.

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We're here this many years later because of the delay on their part in not refiling.

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They could have refiled this case, and none of this would be an issue.

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But it's an issue because they chose not to.

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They chose to move ahead.

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Despite the law, they chose to say, we're going to go ahead.

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We're going to seek reformation.

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The problem is,

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Article III controls federal courts whether it's equitable or legal.

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Article III controls the power of federal courts to give any remedy.

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That includes the equitable remedy of reformation.

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But the equitable remedy of reformation exists for a particular purpose.

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Is it your argument that reformation under state law can never render Article III standing?

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Well, certainly, Afso, for example, let's say they come into the court and said,

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We want you to reform the assignment to give us standing, to give us the patent rights.

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And the court did that.

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They could then add a claim for patent infringement or bring a new case, presumably, for patent infringement.

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So it is effective as of the date the reformation happens, but it doesn't retroactively

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Create the power that the court needed reformation has retroactive effect.

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Isn't that right?

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I mean if you reform a contract then the contract after reformation is viewed as having Been valid or without that defect all along if the court had power to to grant that remedy of reformation

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then that reformation remedy would, in fact, have whatever play it does with the right.

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So frankly, Your Honor, one thing I'd point out is it's not with respect to third parties.

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In the second restatement of contract, a third party like Arkwright would actually not be subject to any retroactive impact of reformation.

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The restatement is very clear on that point.

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It's important that third parties not be disadvantaged.

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But the point here is whether the Court ever had the power to entertain granting a remedy to a party

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where it lacked Article III jurisdiction, because the plaintiff had no rights in the patent.

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The plaintiff came into court with no rights in the patent.

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Now, a court certainly has jurisdiction.

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So let me be clear.

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Are you saying that the remedy of reformation, the state law remedy, can never result in rendering or establishing Article III's standing?

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Not at all, Your Honor.

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So for example, if Schwindleman had gone to Minnesota State Court and asked for this contract to be reformed, and the contract was reformed by a court of general jurisdiction that had that power, Schwindleman then could have gone to federal court and said, I have the rights.

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That's not what they did.

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They didn't do that.

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They went to a court that didn't have the power, because it's a federal court that requires Article III jurisdiction.

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We answered within three months, saying, hey, this court doesn't have the power.

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They were like, we're going ahead.

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They signed assignments where they said that these rights, we don't have these rights, but we're giving them over.

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We pointed out, jurisdiction has to be at the time of the complaint.

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Again, they kept moving forward.

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They could have refiled at either of those points, and this issue would not be before this court, but they didn't.

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This court has been strong in saying, look, there are policy reasons, and there's just the command of the Constitution that under Article III,

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We don't entertain cases.

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And respectfully, the Luckett versus Delparte case in the Supreme Court is very similar.

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I know it's from almost a century ago, Judge Wallach.

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I understand that.

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But if you look at that case, the plaintiff wanted inequity.

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Please cancel this contract.

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Reform it so that I get my rights back.

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And then I want to enjoin these other folks because they're infringing my patent.

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And the Supreme Court said, you can't do that.

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and dismissed, or actually affirmed, the district court having dismissed that patent infringement claim, the attempt to get a preliminary injunction for patent infringement, because the Supreme Court said you cannot take and use the potential equitable change in the contract rights in order to base an infringement claim at the same time.

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You're into your rebuttal time, but I'd like for you to address the issue of the prejudgment interest.

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Yes, Your Honor.

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So the prejudgment interest, General Motors is a fairly clear case in terms of saying from the Supreme Court that what prejudgment interest is about is putting the plaintiff where they would have been.

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So if there are royalty payments, you give prejudgment interest based on when those royalty payments would have occurred.

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Here, the district court didn't do that.

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The district court instead took all of the damages for all the royalty payments across five years

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took all of that, put it at the first date, and gave interest from that date.

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Now, in the response brief, we are told that this was a lump sum judgment.

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If you look in the record, there is no mention of lump sum by any expert, by anyone talking about damages.

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This is not what this court found, for example, in Comcast IP, where this court said the reason we're allowing interest from the very first date is because both experts agreed that this would be a lump sum payment.

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That's not what happened here.

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Here, both experts used actual sales as the calculation.

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It wasn't anticipated sales as of that date of the negotiation.

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It was actual sales.

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And that means both experts were talking about royalty payments based on when those actual sales occurred.

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And to grant interest contrary to General Motors is a violation of the law, as set forth by the Supreme Court, and frankly is an enhancement.

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I mean, it really goes into what 285 is designed to do.

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What happened was the plaintiff got more than the plaintiff would have gotten if Arkwright had made payments each year like the experts said Arkwright should have.

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You're not supposed to get more than you would have gotten except under 285.

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And that's not the case here.

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Thank you, Your Honor.

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Mr. Padman, you have 12 minutes to reserve three for your cross claim.

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That's correct, Your Honor.

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Okay.

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You may proceed, sir.

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May it please the court, Your Honor.

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My plan today was to just go through the different issues on appeal, first addressing arc rights issues.

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And I'm going to start with standing, because that's their primary challenge.

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This court's law, as well as all the district courts that apply this case, and this type of a Scrivener's error type issue, has repeatedly found standing.

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courts repeatedly always have had the jurisdiction to be able to assess when a party challenge is standing, to find if there is standing.

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In this case, in Minnesota, Judge Montgomery went way beyond what many courts do.

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She first found that there was a writing under 261, and then she went forth and said to the parties,

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give me the evidence to find out if there's an actual agreement so that there will always be constitutional standing.

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So she knows for sure that as of the date that the lawsuit was filed, she had all of the rights.

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And so the judge then held basically a summary judgment where she looked at the evidence, found that there was an offer, there was acceptance,

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there was consideration, but she didn't stop there.

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Then she saw that the actual document varied from that intent of the parties, and then went one step further to find out if there was a mutual mistake.

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Because in this case, both parties, ACT and Schwendemann, used the same lawyer.

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The lawyer made a Scrivener's error and therefore fixed it.

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The basic law on the reason Reformation works so well is then you know now as a court, and for every policy reason underlying state.

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How do you align the case of Paradise Creations with this case?

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So Paradise Creations, Your Honor, doesn't really work.

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The better case for this case is Speed Play.

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But Paradise Creations, let me just

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I apologize, Your Honor, I just can't.

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So Paradise Creations, Your Honor, the fundamental difference, that's the Florida case, the fundamental difference there was, there was a dissolution, at the time that the assignment happened, the corporation never existed and could not practice business.

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And then the corporation came back, and what the court said was,

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as an administrative matter, we're not going to be able to make that retroactive.

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That is not the situation here.

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Here, what the district court did was look much like in Speed Place, she looked at the agreement itself and said, yep, that is a written agreement.

[00:18:04] Speaker 00:
But there's a Scrivener's error, because the docket number says, would refer to the 845 application, but the actual serial number wasn't the same.

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A situation that's happened before.

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But in this case,

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In Paradise, we said that state law that allegedly vests enforceable title retroactively, which is what we have here through the reformation, does not sufficiently confer Article III standing.

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So it seems to me you have a decision by this Court standing in your path.

[00:18:39] Speaker 00:
It's a very different scenario because in that state law, they're talking about a corporation that did not exist and having some regulations when it comes back into good standing.

[00:18:50] Speaker 00:
This state law that we're talking about here falls squarely within what this court always does and what it's always agreed, which is you look at an assignment, then you look at the state's law for addressing and interpreting that assignment.

[00:19:03] Speaker 00:
all the all what the district court did and it's even in east southwest fuels where reformation was here there was no assignment until the reformation decision was made here there wasn't there was a writing that qualified as an assignment there was a Scrivener's error but isn't it undisputed that that writing did not

[00:19:21] Speaker 02:
assign the 845 application.

[00:19:24] Speaker 00:
The writing did not, only because there's an ambiguity there between the docket number which refers to the 845.

[00:19:32] Speaker 02:
It was a valid assignment just for the wrong pen.

[00:19:35] Speaker 00:
Well, there's an ambiguity in there because it depends on if you look at the docket number.

[00:19:39] Speaker 00:
When you look at the strikeout and you see the 021, that goes to the right docket, right patent number.

[00:19:45] Speaker 00:
But if you look at the actual serial number, there's a difference.

[00:19:48] Speaker 00:
So she could have gone in either direction.

[00:19:50] Speaker 00:
But what she said was at that point, that is not clear which one it's assigning to.

[00:19:54] Speaker 00:
So she looks at the intent of the parties, but she used reformation, which is completely consistent with Minnesota contract law and allowed by the court.

[00:20:01] Speaker 02:
Correct.

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And that reformation makes the assignment an assignment of the 845 pen.

[00:20:06] Speaker 02:
retroactive back to the date that the lawsuit was filed.

[00:20:10] Speaker 00:
When you say retroactive, the assignment by its nature, the Reformation by its nature doesn't go back, it doesn't find it now and go retroactive.

[00:20:18] Speaker 00:
The rules of Reformation say when was this agreement made?

[00:20:21] Speaker 00:
She looks at the date when the strikeout was made and sees was there an agreement right then?

[00:20:27] Speaker 00:
And so there's no point back.

[00:20:29] Speaker 02:
When we're looking at Article 3 standing,

[00:20:31] Speaker 02:
we're looking backwards at the date that the complaint was filed.

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So at that point, we would say, does this reformed agreement confer Article III standing or not?

[00:20:44] Speaker 02:
So in a way, that's a retroactive looking back.

[00:20:48] Speaker 02:
And that's what happened in Paradise Creations.

[00:20:50] Speaker 02:
Nope.

[00:20:50] Speaker 01:
Paradise Creations.

[00:20:51] Speaker 01:
Your argument seems to be that if the contract, in fact, existed before the complaint was filed,

[00:21:01] Speaker 01:
And the court simply found, through reformation, that it was making clear that the contract existed before the complaint was filed.

[00:21:11] Speaker 00:
That's exactly right, Your Honor.

[00:21:12] Speaker 00:
That is exactly right.

[00:21:13] Speaker 00:
Because the contracts always existed.

[00:21:15] Speaker 00:
There's never a reason to go back.

[00:21:17] Speaker 00:
And the reason it's different in Paradise Creations is, at the time the assignment was made, the corporation wasn't in business.

[00:21:25] Speaker 00:
By law, it was out of business.

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And when it came back into good standing,

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It was because of a creation of contract.

[00:21:32] Speaker 00:
Then they said, because it's now back in good standing, to try to step back.

[00:21:35] Speaker 00:
Here, the situation is, and it's always been, misstanding it.

[00:21:40] Speaker 02:
Didn't they say, now that the corporation, it was dissolved, and once it came back, that all the acts it took during that moment of dissolution were now valid?

[00:21:52] Speaker 00:
I'm sorry?

[00:21:52] Speaker 02:
Were now valid?

[00:21:54] Speaker 00:
That was the argument.

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That was the finding.

[00:21:57] Speaker 00:
And the court said,

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As to the assignment, even when it came back in good standing, the things that happened when it was dissolved, you can't go back.

[00:22:07] Speaker 00:
That's what this court said on that.

[00:22:09] Speaker 00:
But that's different from, in this case, where from the very beginning, well before this patent suit was ever filed, it was clear from the facts, as found with no error whatsoever, that the parties had already made that transfer.

[00:22:26] Speaker 00:
There was no standing issue.

[00:22:28] Speaker 00:
And it's exactly what the law is intended to do.

[00:22:30] Speaker 00:
It's what your case law throughout has done in speed playing every Scrivener's Error case.

[00:22:36] Speaker 00:
Courts have a chance to look at the intent of the parties, step back and see, did the party actually have all of the rights that it needed to be able to maintain the case prior to the lawsuit?

[00:22:46] Speaker 01:
Did the Minnesota statute of fraud require a writing for this transfer?

[00:22:53] Speaker 01:
Minnesota statute of frauds?

[00:22:56] Speaker 00:
I don't know, Your Honor.

[00:22:58] Speaker 00:
I mean, I imagine.

[00:23:00] Speaker 00:
Because he really did analyze this under Section 261 and found that it was a writing requirement was met.

[00:23:06] Speaker 00:
So to the extent that the writing requirement was met for that, it would have been met for the statute of frauds.

[00:23:11] Speaker 01:
I understand that.

[00:23:12] Speaker 01:
My question is, was there a writing requirement under Minnesota law as opposed to 261?

[00:23:21] Speaker 00:
I don't know where the other you are.

[00:23:28] Speaker 00:
So anyway, there's no clearer on any of those findings.

[00:23:31] Speaker 00:
And for that reason, standing should be affirmed in this case.

[00:23:35] Speaker 00:
And the other point that I'll make in this that confirms all of this is, if you look at the party's actions, and she says this in her opinion, the parties, from the time when this transfer happened back when they made the change.

[00:23:50] Speaker 01:
She did everything she promised.

[00:23:51] Speaker 00:
Huh?

[00:23:52] Speaker 00:
Your point is she did everything she promised.

[00:23:54] Speaker 00:
She did everything she promised.

[00:23:55] Speaker 00:
And they acted in accordance with that.

[00:23:57] Speaker 00:
And so for those reasons, the standing decision should be affirmed.

[00:24:01] Speaker 00:
In terms of prejudgment interest, because you asked about it, the judge has discretion on setting the rate.

[00:24:10] Speaker 00:
Who called this a lump sum?

[00:24:12] Speaker 00:
I believe it was the judge, Your Honor, that first thought it was lump sum, and then when he decided that the 10% would be applied as lump sum.

[00:24:21] Speaker 00:
And I think it comes from the order.

[00:24:23] Speaker 00:
I don't have a pin set.

[00:24:24] Speaker 00:
I had my colleague look at it.

[00:24:26] Speaker 00:
But I think that's where it came up.

[00:24:27] Speaker 00:
Because I think this argument came up during that briefing.

[00:24:31] Speaker 00:
And then the judge said, I'm going to apply this 10% across the board.

[00:24:35] Speaker 00:
And in terms of 549B, the reason it didn't apply was simply because federal law mandates that prejudgment interest goes from the date of first infringement to judgment with the only

[00:24:53] Speaker 00:
Yeah, so he doesn't call it lump sum per se.

[00:24:56] Speaker 00:
But what he says is, consistent with the plain language of Minnesota Statute 549.09, the court concludes that it is appropriate to calculate prejudgment interest on the total damages award and not based on the number of infringing sales per year.

[00:25:10] Speaker 00:
It's on appendix page 93.

[00:25:19] Speaker 00:
In terms of our issues, Your Honor, there's a couple I want to highlight.

[00:25:24] Speaker 00:
One is on the motion and limiting where the court addressed, barred us from being able to get damages prior to 2010.

[00:25:33] Speaker 00:
That is an issue where even though the factual findings are clear error, the conclusion on the scope of the claims is de novo.

[00:25:42] Speaker 00:
And the facts really aren't at issue there.

[00:25:44] Speaker 00:
The figure five was amended to be consistent with the sentence.

[00:25:49] Speaker 00:
The prior judge that was on this case, Judge Montgomery, in her claim construction order, had clearly used the sentence from the spec.

[00:25:58] Speaker 00:
Figure five doesn't vary that sentence and so the scope of the claims should be substantially the same and the court should be reversed on that.

[00:26:06] Speaker 00:
The bigger issue is this court that trial judge on the day before closings took away the lost profit claim from the jury and that's reviewed under eight circuit and it's a de novo review.

[00:26:19] Speaker 00:
In this case,

[00:26:21] Speaker 00:
The error the judge made is he weighed credibility.

[00:26:24] Speaker 00:
So under Eighth Circuit law, evidence without weighing credibility of the witnesses, if you do that and there's only one reasonable conclusion, that's the only time you can grant JMOL.

[00:26:37] Speaker 00:
Here the judge made three errors on that.

[00:26:39] Speaker 00:
One, the judge did not assume that all the facts that helped Schwendeman were proven as fact.

[00:26:46] Speaker 00:
He didn't give her the benefit of all the reasonable inferences.

[00:26:49] Speaker 00:
Who was the judge?

[00:26:50] Speaker 00:
The trial judge was Judge Thunheim, but the earlier judge was Judge Montgomery.

[00:26:56] Speaker 00:
He got transferred towards the end.

[00:26:58] Speaker 00:
And lastly, you have to assume all conflicts in the evidence are resolved in her favor.

[00:27:05] Speaker 00:
And the one other thing that's important here is the only thing that the judge could accept as true is really disinterested witnesses.

[00:27:13] Speaker 00:
And here there were none.

[00:27:14] Speaker 00:
So if you look at the three buckets of evidence that the judge had, he had one set of evidence from ACI's own former president.

[00:27:22] Speaker 00:
where he said the market was only these three parties, and we had evidence that there were no non-infringing substitutes there.

[00:27:30] Speaker 00:
The second bucket was AACI's own witnesses, and you can't give credibility, that's purely for the jury.

[00:27:37] Speaker 00:
The judge assessed their credibility, which was improper for JMOL.

[00:27:41] Speaker 00:
The third bucket of witnesses was Ms.

[00:27:44] Speaker 00:
Schwendeman herself.

[00:27:45] Speaker 00:
Whatever her testimony is, that, again, is argument for the jury and for the jury to decide who's right and wrong on it and to decide if there is a non-infringing substitute or not.

[00:27:57] Speaker 02:
You're into your other time on your killing time.

[00:28:09] Speaker 02:
I'm going to store you back to four minutes.

[00:28:11] Speaker 02:
Thank you, Your Honor.

[00:28:12] Speaker 03:
Appreciate it.

[00:28:16] Speaker 03:
For the first time on argument, we now hear that there's an ambiguity in the written document.

[00:28:21] Speaker 03:
I'll point the court both to page 13 of the record and page 32 of the record, where the district court judge here said, on its face, the terms of this agreement do not transfer the patent rights at issue.

[00:28:37] Speaker 03:
As a matter of interpretation, the district court judge did not find.

[00:28:43] Speaker 03:
and found to the contrary that any of the patent rights needed to support Article III jurisdiction got transferred.

[00:28:50] Speaker 03:
That is why the district court judge had to go on to reformation.

[00:28:54] Speaker 03:
And that is why this case is different than Speed Play.

[00:28:56] Speaker 03:
It's different than Southwest E-Fuel.

[00:28:59] Speaker 03:
In those cases, this court, or the Eastern District of Texas, interpreted the language and said, yeah, there is an issue there.

[00:29:06] Speaker 02:
Your opponent describes this as a scrivener's error, that that's what we're looking at.

[00:29:12] Speaker 02:
But wasn't it undisputed that there was a valid assignment, but not for the 845 patent?

[00:29:18] Speaker 03:
That's exactly right, Your Honor.

[00:29:20] Speaker 03:
The district court found there's a written agreement.

[00:29:21] Speaker 02:
In effect, the reformation didn't fix an error or a scribbler's error in a contract or an agreement.

[00:29:28] Speaker 02:
It just created a whole new agreement.

[00:29:31] Speaker 03:
It took this set of patents in an assignment and replaced it with this set of patents is what it did.

[00:29:37] Speaker 03:
We don't disagree that that was a written document.

[00:29:40] Speaker 03:
The problem is it was a written document assigning property that has nothing to do with Article 33 jurisdiction in this case.

[00:29:47] Speaker 03:
The district court acknowledged that and said, I need to reform it so that the patent rights in this case are assigned by that document.

[00:29:55] Speaker 03:
So the document actually assigns the right patents.

[00:29:58] Speaker 03:
And the judge knew this was an issue.

[00:30:00] Speaker 03:
The judge actually certified an interlocutory appeal on that question, specifically saying, can I reform after the case has started

[00:30:10] Speaker 03:
to change this issue.

[00:30:12] Speaker 03:
And what's being ignored here is that the judge specifically under Minnesota law on page 13 said, from an interpretation point of view, this doesn't do it.

[00:30:23] Speaker 03:
This transfers rights that don't give you Article III jurisdiction.

[00:30:27] Speaker 03:
I have to go to reformation.

[00:30:30] Speaker 03:
Under this court's ruling in Paradise, under the Supreme Court's ruling in Luckett, the court doesn't have power to offer the remedy of reformation

[00:30:40] Speaker 03:
when there's no Article III jurisdiction from the date of the complaint.

[00:30:43] Speaker 03:
That's where we sit on standing.

[00:30:45] Speaker 03:
And paradise is right there.

[00:30:48] Speaker 03:
Luckett is right there.

[00:30:49] Speaker 03:
That's the key issue.

[00:30:50] Speaker 03:
And this district court was actually very careful to tell us what interpretation meant and then what reformation meant, which is actually very helpful.

[00:30:59] Speaker 03:
So if you read, for example, that Southwest eFuel's case, it's hard to tease out where the judge is interpreting the written agreement and where the judge is reforming.

[00:31:08] Speaker 03:
In fact, what the judge really says is, well,

[00:31:11] Speaker 03:
The interpretation gets me to constitutional standing.

[00:31:15] Speaker 03:
And then I can reform.

[00:31:17] Speaker 03:
That's not what happened here.

[00:31:18] Speaker 03:
Here, the judge very clearly said, when you interpret this under Minnesota law, the rights aren't there.

[00:31:24] Speaker 03:
And that's why I have to go to reformation.

[00:31:26] Speaker 03:
So you're on just a couple of points with regard to the other issues that were raised.

[00:31:31] Speaker 03:
With respect to the interest issue, I 100% agree, lump sum is nowhere in the record until they're

[00:31:40] Speaker 03:
The judge may have said it, but it's not in the evidentiary record.

[00:31:44] Speaker 03:
Neither expert ever talked about lump sum.

[00:31:46] Speaker 03:
And there's certainly no evidence to support lump sum.

[00:31:49] Speaker 03:
Lump sum usually happens where a damages expert says, here's what the parties anticipated on that day of the reasonable negotiation.

[00:31:57] Speaker 03:
And based on that anticipation, they would have agreed to this number.

[00:32:01] Speaker 03:
Neither expert did that.

[00:32:03] Speaker 03:
Here, both experts said, here are the sales.

[00:32:06] Speaker 03:
Here are the percentages we apply.

[00:32:08] Speaker 03:
That is exactly what General Motors, the US Supreme Court, said.

[00:32:12] Speaker 03:
You do the interest based on those payments.

[00:32:14] Speaker 03:
Finally, they can't ignore Schwindleman's testimony.

[00:32:17] Speaker 03:
Schwindleman's testimony, which the district court relied on to grant judgment as a matter of law, is their own witness.

[00:32:24] Speaker 03:
They can't ignore that testimony.

[00:32:25] Speaker 03:
They can't tell the district court judge to ignore it in granting JMOL.

[00:32:29] Speaker 03:
And the district court judge correctly took it into account.

[00:32:33] Speaker 03:
Thank you, Your Honor.

[00:32:34] Speaker 03:
Unless there are any further questions.

[00:32:48] Speaker 00:
Your Honor, on your question about the agreement itself.

[00:32:52] Speaker 00:
So the agreement itself wasn't a complete rewrite.

[00:32:54] Speaker 00:
If you look at the agreement and what the judge did.

[00:32:56] Speaker 02:
Is this on your counterclaim that you're addressing?

[00:32:58] Speaker 00:
I'm talking about just the standing issue.

[00:33:03] Speaker 00:
So just on the standing issue, just the initial agreement.

[00:33:06] Speaker 00:
Just to be clear, the initial agreement with the contract that the district court was looking at had a docket number, the 0.021 docket number.

[00:33:16] Speaker 00:
We got that.

[00:33:17] Speaker 00:
OK.

[00:33:18] Speaker 00:
And so the judge did find that to be an intentional reduction of the contract.

[00:33:22] Speaker 00:
So it wasn't a complete rewrite.

[00:33:27] Speaker 00:
On our counterclaim, on Schwendeman's testimony, if you look at the testimony itself, and this goes through a chapter and verse in our brief, none of that questioning is specifically on dark fabric transfer.

[00:33:39] Speaker 00:
But more importantly, it's on the bigger question.

[00:33:41] Speaker 00:
You don't have to get to that level of detail.

[00:33:43] Speaker 00:
It's just simply an issue where everybody has something to say to the jury, but it's in the purview of the jury to be able to make that determination.

[00:33:52] Speaker 00:
That's all I have, Your Honor.

[00:33:53] Speaker 00:
Thank you.

[00:33:55] Speaker ?:
OK.

[00:33:55] Speaker ?:
Thank you.