[00:00:00] Speaker 01:
We'll hear argument next in number 20-2087 Cat Export LLC versus Zinus, Inc.

[00:00:08] Speaker 01:
Mr. Wallace.

[00:00:10] Speaker 03:
Thank you, Your Honor.

[00:00:11] Speaker 03:
Good morning and may it please the court.

[00:00:13] Speaker 03:
This is Darian Wallace on behalf of the appellant and patentee, Zinus.

[00:00:18] Speaker 03:
It would be difficult to find a case in which the lack of diligence and the discovery of prior art was more egregious than in this case.

[00:00:27] Speaker 01:
Let me ask you first.

[00:00:29] Speaker 01:
60B3 doesn't mention diligence, unlike other sections of Rule 60.

[00:00:36] Speaker 01:
Is there any circuit other than the Ninth Circuit which has read a diligence requirement into B3?

[00:00:44] Speaker 03:
There is the dicta in the First Circuit case Anderson that CAF Export cited.

[00:00:50] Speaker 03:
However, the specific reference to the words due diligence

[00:00:56] Speaker 03:
is not in any of the other circuits.

[00:00:59] Speaker 03:
However, all of the circuits have the same concept, and that is the concept that the misconduct prevented the movement from fully and fairly presenting its case, and that fairly is determined to be diligent.

[00:01:14] Speaker 03:
Most of the circuits cite Moore's federal practice, which says that Rule 60B3 should not be a reward to the lazy litigants who did not adequately investigate

[00:01:26] Speaker 03:
his or her case.

[00:01:27] Speaker 03:
So that's where the diligence comes in and that's what the Ninth Circuit just made explicit.

[00:01:35] Speaker 01:
Someone in one of these proceeds not entitled to rely on testimony by the opposing party as being truthful?

[00:01:48] Speaker 03:
Of course it's entitled to rely, but the question is whether

[00:01:53] Speaker 03:
that absolves the party from an obligation to be diligent.

[00:01:57] Speaker 03:
And simply because a deponent might have a bad memory or might even make a misrepresentation, that doesn't mean that the party under Rule 60B3 has no obligation to be diligent.

[00:02:16] Speaker 00:
So you're saying trust but verify.

[00:02:21] Speaker 03:
Well, actually, no, Your Honor.

[00:02:23] Speaker 03:
Simply because one deponent might not know about prior art doesn't mean that the prior art isn't there.

[00:02:33] Speaker 03:
And there's always an obligation from every patent litigant to propound requests for production of documents directed to prior art.

[00:02:45] Speaker 03:
There is always an obligation from every patent litigant to propound interrogatories.

[00:02:51] Speaker 03:
directed to prior art, specifically to on-sale prior art.

[00:02:55] Speaker 01:
There's an obligation to propound interrogatory?

[00:02:58] Speaker 01:
Why?

[00:03:00] Speaker 03:
Well, in many circuits, Your Honor is correct that there is no obligation because it has been done for so many years that it has been incorporated into the patent local rules.

[00:03:13] Speaker 03:
For example, the patent local rules of the Northern District of California, which have been adopted by many other districts.

[00:03:19] Speaker 03:
And in the patent local rules,

[00:03:21] Speaker 03:
The patentee has an obligation within 14 days of the case management conference to disclose all documents that, for example, relate to the sales or on-sale activity.

[00:03:36] Speaker 03:
But in districts that don't have patent local rules, the old fashioned way, it is the obligation of the infringer to find out that information through traditional discovery mechanisms and one of them is

[00:03:51] Speaker 03:
Venous presented expert testimonial evidence, actually two declarations, one's from Judge Rader and one from a very experienced patent litigator with over 100 patent cases that said that you do not meet your standard of care as a patent litigator if you don't do those three things.

[00:04:19] Speaker 03:
Request for production of documents,

[00:04:21] Speaker 03:
under Rule 34 asking for all on-sale prior art and interrogatories under Rule 33 asking to identify on-sale prior art.

[00:04:34] Speaker 03:
In fact, the declaration from Mr. Marino said that the law firms that he's been at have standard interrogatories for patent cases and he teaches law

[00:04:48] Speaker 03:
UC Berkeley and University of Santa Clara, and that's what he teaches in his class.

[00:04:52] Speaker 01:
And I believe it is true that all of them seem to be a different issue as to whether it is commonplace for people to do particular things doesn't mean that if they're lied to by the other side that they are going to lose their right to challenge the resulting judgment because they could have done something more in theory.

[00:05:17] Speaker 03:
Well, Your Honor, it's not doing something more.

[00:05:19] Speaker 03:
In this case, they did nothing at all.

[00:05:22] Speaker 01:
Well, they asked your witness about it.

[00:05:26] Speaker 03:
No, Your Honor, that was not the full deposition.

[00:05:30] Speaker 03:
That was before fact discovery had opened and the district court forbade the parties from discovery into anything other than the issue of standing.

[00:05:42] Speaker 03:
So naturally, the witness didn't prepare himself for issues of validity, for example, and simply, and his recollection hadn't been refreshed.

[00:05:52] Speaker 03:
There were no requests for production of documents before that to ask him about, and he did not remember.

[00:06:00] Speaker 03:
He didn't lie.

[00:06:02] Speaker 00:
Well, the court made a contrary finding, didn't it?

[00:06:08] Speaker 00:
It seems to me the court's saying that

[00:06:11] Speaker 00:
Not only was it exceedingly unlikely that he did not remember the receipt of the bets, but that he made an affirmative misrepresentation.

[00:06:23] Speaker 03:
Right.

[00:06:24] Speaker 03:
The district court specifically did not say it was an intentional misrepresentation.

[00:06:28] Speaker 03:
What?

[00:06:28] Speaker 03:
I don't know what.

[00:06:29] Speaker 01:
An affirmative misrepresentation is not intentional?

[00:06:33] Speaker 03:
No.

[00:06:35] Speaker 03:
He forgot.

[00:06:37] Speaker 03:
He didn't remember.

[00:06:39] Speaker 00:
Well, the court said it was highly improbable that he was unaware of both the patent activities and implausible that he did not remember the shipments.

[00:06:56] Speaker 03:
That's correct.

[00:06:57] Speaker 03:
And I believe that the district court was incorrect because we're based on that.

[00:07:02] Speaker 00:
But if we credit the district court's findings on those points, then the issue of intent sort of falls out of the case, doesn't it?

[00:07:11] Speaker 03:
I believe the district court was relying on incorrect assumptions.

[00:07:18] Speaker 03:
For example, the court found that it was highly improbable that Mr. Lorry didn't remember things because I passed a note to him right as we were discussing that telling him not to mention his company, Yosama.

[00:07:34] Speaker 03:
Well, it turns out that that was a fabrication by CAFEX Board and I never passed any note

[00:07:39] Speaker 03:
And in fact, the court mentions nine times in the order that concealing the identity of Yosama showed this malfeasance.

[00:07:49] Speaker 03:
Well, the identity of Yosama had nothing to do with concealing this prior art because the prior art was sold by HQV exactly like the deponent said his company was called and the invoices upon which a cap export relied in its 30B6

[00:08:09] Speaker 03:
motion were invoices to HQV.

[00:08:12] Speaker 03:
So the inferences made by the district court were just incorrect.

[00:08:18] Speaker 01:
Let's assume that we reject that and we find that the district court found that your client lied and that that finding is not clearly erroneous.

[00:08:29] Speaker 01:
What's the matter then with the district court's decision to reopen on that basis?

[00:08:38] Speaker 03:
under Ninth Circuit law, due diligence is required.

[00:08:45] Speaker 01:
Yeah, but there's no Ninth Circuit case that says due diligence requires you to find out if your opposing party is lying, right?

[00:08:57] Speaker 03:
It was not necessary to find the misrepresentation in order to find the prior art.

[00:09:07] Speaker 01:
Okay, but I don't think accepting my hypothetical.

[00:09:09] Speaker 01:
I'm assuming that your client lied and the district court found that your client lied.

[00:09:18] Speaker 01:
So, what Ninth Circuit case says that under those circumstances you have due diligence to find out if the person is lying?

[00:09:30] Speaker 03:
Casey, the seminal case, it says the misconduct

[00:09:37] Speaker 03:
would not have been discoverable by due diligence.

[00:09:41] Speaker 03:
The misconduct is the concealment of the shipments of beds.

[00:09:46] Speaker 03:
It is that misconduct that had to be found by due diligence.

[00:09:50] Speaker 03:
You still have to be diligent.

[00:09:52] Speaker 03:
You can't say, oh, there was a misrepresentation, so we don't need to look.

[00:09:59] Speaker 03:
And that language that the fraud or misconduct must be discoverable by due diligence is cited in over 50 cases.

[00:10:08] Speaker 03:
That's the law.

[00:10:17] Speaker 03:
If there are no further questions, I'll reserve the remainder of my time for rebuttal.

[00:10:23] Speaker 01:
OK.

[00:10:23] Speaker 01:
Thank you, Mr. Beichman.

[00:10:26] Speaker 02:
Thank you, Your Honors.

[00:10:27] Speaker 02:
On behalf of CAP-X4, good morning.

[00:10:29] Speaker 02:
May it please the court.

[00:10:31] Speaker 02:
I think this court just hit the nail on the head.

[00:10:35] Speaker 02:
And asking the same question in the inverse,

[00:10:38] Speaker 02:
There are no cases that uphold the proposition that a Rule 60 motion should be denied solely because the other side was not diligent enough in discovery to discover the misconduct or as this court's called the lie.

[00:10:50] Speaker 02:
And Casey, in fact, has left that wide open.

[00:10:54] Speaker 02:
The law is not the fact that Casey sets forth the proposition that diligence requires this discovery.

[00:11:01] Speaker 02:
Casey, in and of itself,

[00:11:03] Speaker 02:
was a run-of-the-mill discovery issue, and that issue was the serving party served discovery two and a half weeks before the cutoff.

[00:11:12] Speaker 02:
And the defendant Albertson's refusal to respond to that discovery didn't constitute a fraud.

[00:11:19] Speaker 02:
It just said, well, the discovery is late.

[00:11:20] Speaker 02:
We don't have an obligation to produce.

[00:11:23] Speaker 02:
And the Ninth Circuit then affirmed the district court's denial of the Rule 60 on those facts, but stated

[00:11:29] Speaker 02:
It is significant to note that this is not a case in which it is alleged that Albertsons possessed Smith's employment records but falsely denied having them.

[00:11:38] Speaker 02:
That's the fact pattern here, completely different from Casey.

[00:11:43] Speaker 02:
In this instant matter, the controlling cases are more along the lines of Hazel Atlas and the Viscase Corp case that we cited in our briefs that stand for the proposition that no matter what,

[00:11:56] Speaker 02:
the level of discovery is engaged in and not withstanding any due diligence, these facts couldn't have been discovered because they were intentionally and materially withheld from cap export.

[00:12:09] Speaker 02:
And with that, I fall back to the prior art discussion.

[00:12:13] Speaker 01:
Wait a minute, couldn't have been?

[00:12:14] Speaker 02:
Yes, Your Honor.

[00:12:16] Speaker 01:
I'm not sure that's the case.

[00:12:21] Speaker 02:
I'm sorry, I didn't hear the question, Your Honor.

[00:12:23] Speaker 01:
You say couldn't have been discovered.

[00:12:25] Speaker 01:
I don't think there's a finding here that it couldn't have been discovered.

[00:12:32] Speaker 02:
I understand.

[00:12:32] Speaker 02:
I understand.

[00:12:33] Speaker 02:
As the district court pointed out, we have conducted several prior art searches.

[00:12:39] Speaker 02:
And the district court noted that given the relatively unique nature of the relevant evidence that was being sought, the district court's analysis of prior art

[00:12:50] Speaker 02:
specifically made mention of the fact that the prior art searches are mostly document focused, making the existence of physical products embodying these claims challenging to find.

[00:13:01] Speaker 02:
It also went on and noted that the evidence concealed by Mr. Lowy's misrepresentation were not documents discoverable in prior art searches, but in fact were concealed purchases from a Malaysian furniture company.

[00:13:15] Speaker 02:
And what the district court was addressing in that particular instance was the fact that, while it may have been able to, while this evidence may have been discoverable by other means, those means were so far remote from where we were at that time in the case because of the fact that during that deposition of Mr. Lowry,

[00:13:37] Speaker 02:
He testified, I believe it was five or six different times, that he had no recollection of the purchase of these beds.

[00:13:46] Speaker 02:
He had purchased 1,205 units of the exact same bed over three years in three different shipments.

[00:13:54] Speaker 02:
And interestingly, the last shipment shipped in the same year, 2013, as when his company, Zynus, filed for the patent.

[00:14:03] Speaker 02:
And that's why the court found it disingenuous to believe that his position as president of the company, he would have no knowledge of those purchases and shipments at the time of the filing of the patent and at the time he was designated as the expert in the case.

[00:14:20] Speaker 02:
I think the court used the word implausible and this court cited that this morning.

[00:14:25] Speaker 02:
So from that perspective,

[00:14:28] Speaker 02:
That evidence may have been out there, but just as Zinus' counsel said and this court acknowledged, we should be able to assume the truth of the testifying witness.

[00:14:40] Speaker 02:
And given the fact that that was the direction.

[00:14:43] Speaker 01:
Suppose the witness lied by saying that a particular document didn't exist, but that you had the document and it had been produced and discovered.

[00:14:56] Speaker 01:
What would the result?

[00:14:57] Speaker 01:
Would that be a full and fair opportunity to litigate?

[00:15:03] Speaker 02:
If I'm understanding the court's question, that would be the deponent lied about the existence of the document, but the document was in fact in our possession, vis-a-vis a discovery mechanism.

[00:15:14] Speaker 01:
Yeah.

[00:15:15] Speaker 02:
Yes, Your Honor.

[00:15:16] Speaker 02:
Then in that particular instance, that's more similar to, I believe it was the MV Peacock case where,

[00:15:23] Speaker 02:
evidence was available and there was a lack of due diligence and following up on it and assumptions were made versus having that information.

[00:15:32] Speaker 02:
So if evidence were in the possession of the party and then the deponent thereafter lied, I imagine that evidence would be used as impeachment mechanism during the deposition and that would have triggered and or allowed or would have

[00:15:50] Speaker 02:
initiated the response for further discovery on that topic.

[00:15:54] Speaker 02:
But that, in fact, wasn't the case here, because the first discovery mechanism deployed was that early deposition in the case, where Mr. Lowry made, as the court found, these affirmative misrepresentations as to these material components of the case.

[00:16:11] Speaker 02:
And then that was... The 30B6 witness?

[00:16:16] Speaker 01:
I'm sorry, Your Honor?

[00:16:17] Speaker 01:
Was he testifying as a 30B6 witness?

[00:16:21] Speaker 02:
No, Your Honor.

[00:16:21] Speaker 02:
At that time, he was testifying as the patent expert designated by Zinus.

[00:16:27] Speaker 02:
In his subsequent deposition, he testified as the 30B6.

[00:16:34] Speaker 02:
Or I may have misspoken.

[00:16:38] Speaker 02:
I think, no, I apologize.

[00:16:39] Speaker 02:
He was not designated 30B6.

[00:16:41] Speaker 02:
He was ordered

[00:16:43] Speaker 02:
That's right.

[00:16:43] Speaker 02:
And now that I'm correct, after, after the first round of hearings on the motion on the rule 60 in the district court, um, the district court judge asked the parties to go and ascertain these videotape depositions because the court wanted to firsthand view the credibility of the various witnesses that have supplied the declaration.

[00:17:05] Speaker 02:
So no, he, both times he was not testifying as 30 B six, your honor.

[00:17:09] Speaker 02:
I apologize.

[00:17:18] Speaker 02:
Okay.

[00:17:21] Speaker 02:
I think it's important to note that if I may, thank you, Your Honor.

[00:17:23] Speaker 02:
I think it's important to note that the cases that were cited in CAP exports brief point out the fact that in the Ninth Circuit, there is an interesting body of law on the matter.

[00:17:36] Speaker 02:
And starting with the Anderson matter, that court found that the moving party exercised due diligence simply by initiating discovery requests.

[00:17:46] Speaker 02:
And I've already mentioned the MBPcock case and the Hazel Atlas case.

[00:17:50] Speaker 02:
But what's important to note is that the fact that there are varying interpretations of diligence underscores the fundamental premise that the courts are given discretion to apply a flexibility approach.

[00:18:03] Speaker 02:
The courts look at these matters.

[00:18:05] Speaker 02:
The district courts in the Ninth Circuit are to look at these matters on a fact-based approach.

[00:18:12] Speaker 02:
And given what this court has noted,

[00:18:16] Speaker 02:
is clearly an egregious set of facts with the misrepresentations that the courts cited.

[00:18:21] Speaker 02:
And that's why it is, in fact, in the Ninth Circuit, this is an abuse of discretion standard that's applicable to both the matters on appeal here.

[00:18:32] Speaker 02:
And why that's important is because this court I heard earlier this morning saying that should this court credit the district court, and I would advance the proposition that this court must

[00:18:44] Speaker 02:
credit the decisions of the district court because of the fact that this is an abuse of discretion standard and because of the fact that the district judge had the opportunity and in fact ordered the opportunity to gather this evidence, to gather videotaped evidence and to be able to review firsthand the credibility of these witnesses.

[00:19:05] Speaker 02:
And it did so very, very carefully and was very concise

[00:19:10] Speaker 02:
and carefully analyzed all of this evidence in its ruling on the Rule 60 motion.

[00:19:15] Speaker 02:
And with that, if there's no further questions from the court, I would cede the balance of my time.

[00:19:19] Speaker 00:
I do have a question just quickly.

[00:19:22] Speaker 00:
Do you recall what the initial ask in this case was in terms of damages?

[00:19:31] Speaker 00:
I gather that there was ultimately a settlement for around a million dollars, right?

[00:19:38] Speaker 02:
Initially, the ask was very high.

[00:19:43] Speaker 02:
There were some sales documents that were exchanged during discovery.

[00:19:49] Speaker 02:
But I don't believe, I recall hearing a specific number being exchanged.

[00:19:55] Speaker 02:
But they were asking for damages to the Korean company, the Zinus entity that's in Korea.

[00:20:01] Speaker 02:
There's multiple Zinuses that we've learned over the years.

[00:20:04] Speaker 02:
but saying that that company had been damaged by the alleged infringed sales.

[00:20:09] Speaker 00:
Okay.

[00:20:10] Speaker 00:
All right.

[00:20:10] Speaker 00:
Thank you.

[00:20:12] Speaker 01:
Thank you, Your Honor.

[00:20:14] Speaker 01:
Okay.

[00:20:14] Speaker 01:
Mr. Wallace.

[00:20:16] Speaker 03:
Thank you.

[00:20:17] Speaker 03:
I'd like to talk about the judge's findings of Mr. Lorry that he was improbable that he had no recollection of the shipments.

[00:20:27] Speaker 03:
That's not really relevant.

[00:20:29] Speaker 03:
He did have recollection of the shipments.

[00:20:31] Speaker 03:
The question was, did he have

[00:20:33] Speaker 03:
recollection of the structure of the beds and that was not part of the business that he was in and he didn't see that and he recalls that the beds had a central wooden beam that didn't fit in the headboard.

[00:20:47] Speaker 03:
So that's why he didn't think that the beds that he had purchased fell within the question of whether all the parts fit in the headboard.

[00:20:59] Speaker 03:
To the law, cap export gets it totally wrong about the de novo review.

[00:21:07] Speaker 03:
There is no deference given to a district judge who gets the law wrong.

[00:21:12] Speaker 03:
And in this case, the law is clear in the Ninth Circuit that due diligence is always required.

[00:21:18] Speaker 03:
It's never waived.

[00:21:20] Speaker 03:
And it's never waived for a misrepresentation.

[00:21:24] Speaker 03:
The rules, 60B3 says,

[00:21:29] Speaker 03:
for fraud or misrepresentation or misconduct.

[00:21:32] Speaker 03:
And Casey says that the rule 60B3 requires that the fraud not be discoverable by due diligence.

[00:21:41] Speaker 03:
So the fraud or misrepresentation.

[00:21:44] Speaker 03:
So in a case where there's a misrepresentation, there has to be due diligence.

[00:21:48] Speaker 03:
That doesn't waive it.

[00:21:50] Speaker 03:
And in this case, the district court waives

[00:21:54] Speaker 03:
the due diligence requirement because cap export engaged in no discovery whatsoever into that alleged misrepresentation or the misconduct that was the basis for the 60B3 motion.

[00:22:09] Speaker 00:
When you say that the district court made a legal error by finding that there was no requirement of due diligence, but as I read the district court's opinion, the court did

[00:22:21] Speaker 00:
acknowledge that there was such a requirement, due diligence, said that in the case of, in a footnote at the end of the opinion, I think it was, said that that due diligence requirement might be lessened, although not avoided altogether, but lessened in the case of a misrepresentation.

[00:22:43] Speaker 00:
Where is the legal error there?

[00:22:45] Speaker 00:
I mean, I understand you say that factually that you think that

[00:22:49] Speaker 00:
the district court erred in finding that there was due diligence in this case, but I'm not seeing a legal error.

[00:22:56] Speaker 03:
The legal error is that the court found that a lack of due diligence is acceptable in these circumstances or in this context.

[00:23:08] Speaker 00:
Well, in these circumstances, being in the situation where there's misrepresentation, I read the footnote.

[00:23:14] Speaker 00:
We're talking about the footnote in Appendix 21, I think.

[00:23:18] Speaker 00:
as saying that the due diligence requirement may be lessened in the case of a misrepresentation, not that it is avoided altogether.

[00:23:31] Speaker 00:
Isn't that a fair assessment of what the court was saying?

[00:23:35] Speaker 03:
Well, diligence might be lessened, but due diligence is a standard, and you can't go below due diligence.

[00:23:45] Speaker 03:
And the standard of due diligence doesn't

[00:23:48] Speaker 03:
isn't lessened in certain circumstances.

[00:23:51] Speaker 03:
And ZENUS was the only party that entered evidence of what that standard is.

[00:23:57] Speaker 03:
And the standard of due diligence never falls below the standard of care.

[00:24:02] Speaker 03:
And cap export didn't meet the standard of care because it did nothing, absolutely nothing.

[00:24:11] Speaker 03:
After fact discovery opened, it didn't do anything to find on-sale prior art.

[00:24:17] Speaker 01:
Well, correct me if I'm wrong.

[00:24:19] Speaker 01:
The declarations that you submitted weren't addressed, if I recall correctly, maybe I'm wrong about this, to what should have been done in the case of a misrepresentation.

[00:24:32] Speaker 01:
They just talked about what the diligence usually is in a case to discover prior art, right?

[00:24:40] Speaker 03:
That's incorrect, Your Honor.

[00:24:41] Speaker 03:
Appendix 1068.

[00:24:45] Speaker 03:
Raider says fundamental attorney competence requires the service of such formal discovery to determine whether a particular witness, for example, the president or patent owner, Xenis, might testify inaccurately in a deposition or might make deliberate affirmative misrepresentation in an effort to conceal prior art.

[00:25:04] Speaker 03:
The standard of care demanded of an attorney to request production of documents for prior art must be made in every patent infringement case.

[00:25:14] Speaker 01:
Okay, but I think you're not addressing the question I'm asking.

[00:25:20] Speaker 01:
My understanding is that they're talking about basically what attorney competence requires, what an attorney performance is required as a practical matter rather than addressing the Ninth Circuit standard of what constitutes diligence in connection with 60B3.

[00:25:44] Speaker 01:
Right?

[00:25:47] Speaker 03:
Judge Rader says that the standard under 60B3 for due diligence can never fall below the standard of care.

[00:25:57] Speaker 03:
That's the lower limit of it.

[00:26:00] Speaker ?:
Okay.

[00:26:02] Speaker 03:
That's in, as I said, Appendix 1068, Paragraphs 29 and 30.

[00:26:12] Speaker 03:
So in this case, CapExport did nothing.

[00:26:14] Speaker 03:
It asked for no request for production of documents, no interrogatories, and it didn't take the 30B6 deposition of Zena.

[00:26:22] Speaker 03:
Never did.

[00:26:23] Speaker 03:
The Casey says that due diligence has to be before or during the proceedings.

[00:26:30] Speaker 03:
So the deposition of Mr. Lowry after the motion doesn't count.

[00:26:37] Speaker 03:
And the court also relied on some supposed

[00:26:42] Speaker 03:
online searches, database searches.

[00:26:45] Speaker 03:
But even the district court recognized that those searches aren't going to find non-documentary evidence like on sale prior art.

[00:26:53] Speaker 03:
But yet the court said because of the unique nature of that prior art, he wasn't requiring it.

[00:26:59] Speaker 03:
But there's nothing unique about on sale prior art.

[00:27:03] Speaker 03:
It comes up in every single patent case.

[00:27:07] Speaker 00:
This case, as patent cases go, it struck me that this case is not a particularly big case.

[00:27:15] Speaker 00:
I think the settlement, if I recall, was around a million dollars.

[00:27:21] Speaker 00:
Do you think that due diligence is the same level as required for cases regardless of the size of the cases, or is that a factor that plays into the due diligence?

[00:27:36] Speaker 03:
That is a factor.

[00:27:37] Speaker 03:
both Mr. Marino's declaration and Judge Rader's declaration.

[00:27:41] Speaker 03:
So a lot of patent cases settle right away for a nuisance value and don't go very far.

[00:27:49] Speaker 03:
And in those cases, it's common not to put a lot of effort into discovery yet.

[00:27:55] Speaker 03:
But in a case that goes to summary judgment of infringement, for example,

[00:28:02] Speaker 03:
where the amount at issue is over a million dollars, then yes, you have to do the minimum steps for discovery of every patent case.

[00:28:14] Speaker 03:
And again, both of the expert testimonial evidence that Zenith presented state that.

[00:28:22] Speaker 03:
And CathExport didn't have any evidence about what the standard of care or the standard of due diligence is.

[00:28:30] Speaker 03:
Okay.

[00:28:30] Speaker 03:
Thank you.

[00:28:33] Speaker 01:
Okay.

[00:28:35] Speaker 01:
Thank both counsel.

[00:28:36] Speaker 01:
The case is submitted.

[00:28:39] Speaker 03:
Thank you.

[00:28:41] Speaker 03:
The honorable court is adjourned until tomorrow morning at 10 a.m.