[00:00:00] Speaker 03:
Canoe Proprietary Limited against Samsung Electronics Company Limited.

[00:00:06] Speaker 03:
Mr. Goldberg.

[00:00:09] Speaker 02:
Good morning, Your Honors.

[00:00:10] Speaker 02:
This is Perry Goldberg from Progress LLP for the Appellant and Patent Donor Canoe.

[00:00:15] Speaker 02:
May it please the Court?

[00:00:17] Speaker 02:
Canoe and Samsung entered into an NDA in 2012 so that they could discuss whether Samsung would license Canoe's now patented technology.

[00:00:27] Speaker 02:
Based on the protections that Samsung promised to Canoe in the NDA, Samsung induced Canoe to share detailed confidential information with Samsung, including a proof of concept demonstration that Samsung asked Canoe to build to show Samsung exactly how Canoe's technology could be implemented on Samsung's smart TVs.

[00:00:50] Speaker 00:
But Mr. Goldberg, this is Judge Pro.

[00:00:53] Speaker 00:
You started with the agreement, and the agreement is quite clear.

[00:00:58] Speaker 00:
You mentioned they were going to discuss licensing.

[00:01:01] Speaker 00:
There was no license, this is not a license agreement, correct?

[00:01:05] Speaker 02:
That is correct, Your Honor.

[00:01:07] Speaker 02:
Yes, and I will be addressing the relevance of that distinction.

[00:01:12] Speaker 02:
Okay.

[00:01:13] Speaker 02:
So the central protection that was provided by the NDA is that Samsung agreed to use Canoe's information only to quote,

[00:01:23] Speaker 02:
further a business relationship between the parties," end quote, which the NDA defined as the, quote, business purpose, end quote.

[00:01:32] Speaker 02:
Samson's brief omits any reference to the business purpose, and instead quotes only the preface of that sentence about disclosing confidential information.

[00:01:42] Speaker 02:
They don't talk about the part as to why the confidential information was being disclosed.

[00:01:47] Speaker 00:
And the fact of the matter is that... How does that affect the issue that's before us?

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which is whether or not the IPR was within the scope.

[00:01:56] Speaker 02:
Right.

[00:01:57] Speaker 02:
Yeah.

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So the issue here is the scope of the Forum Selection Clause.

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And the Forum Selection Clause governs not only disputes that relate to the agreement, but also the transactions contemplated by the agreement.

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And so the purpose of the agreement, the transactions that were contemplated, were a business relationship.

[00:02:22] Speaker 02:
And there's no dispute, it's undisputed that the specific type of business relationship that was contemplated was a patent license agreement to the patents that are at issue in the IPRs here.

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And the fact of the matter is that Samsung promised it would use Canuse confidential information only for the business purpose, for no other purpose whatsoever.

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And what happened though is, and this is also undisputed, Samsung broke off the business discussions and then accessed Canoe's proof of concept build more than 2,500 times.

[00:03:02] Speaker 02:
This was a clear breach of the agreement.

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Subsequently, Samsung released the same technology on its smart TVs that Canoe had showed to Samsung under the NDA.

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which prompted Canoe to sue Samsung for breach of the NDA and for patent infringement.

[00:03:22] Speaker 01:
Canoe contends that Samsung improperly used... Mr. Goldberg, this is Judge Ken.

[00:03:27] Speaker 01:
I'm sorry, we don't have a lot of time, so here's the crux of my problem.

[00:03:32] Speaker 01:
If we were looking at a patent licensing agreement, then I could completely understand and see how a patent invalidity challenge in an IPR

[00:03:45] Speaker 01:
would necessarily disrupt and interfere with the terms of the patent license.

[00:03:53] Speaker 01:
But I don't necessarily see how an IPR proceeding here disrupts or impacts any of the obligations here in a non-disclosure agreement.

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And so it doesn't impact the outcome of any NDA claim that you might have against Samsung.

[00:04:14] Speaker 01:
If they in fact improperly disclosed or used the confidential sensitive information that you disclosed to them under the NDA for any reason, you'll have that claim as a breach of contract.

[00:04:29] Speaker 01:
But the patent validity question just seems separate and apart from any NDA obligation here.

[00:04:39] Speaker 01:
So could you just?

[00:04:40] Speaker 01:
answer that question for me and the distinction I see between what I would think of as a GARM variety patent license agreement and what we have here, which is a non-disclosure.

[00:04:55] Speaker 01:
Thank you, Your Honor.

[00:04:56] Speaker 02:
So the issue here is not the type of agreement, it's what does the forum selection clause cover.

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And so if you have a patent license agreement, it might be more obvious

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that patent issues are going to be covered by a forum selection clause.

[00:05:12] Speaker 02:
Here, imagine for a moment that the forum selection clause in our case specifically said all patent disputes must be resolved in a court in New York and only there.

[00:05:29] Speaker 02:
Well, if that's what it said, I don't think there would be any concern about the fact that we're dealing with a nondisclosure agreement rather than

[00:05:37] Speaker 02:
a patent license.

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And so the point is, you have to look to the Forum Selection Clause language to see what's covered and what's not.

[00:05:46] Speaker 02:
And so what's the context in interpreting that?

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And here, the context is that the parties had contemplated transactions, and it's undisputed what those are, and it's undisputed that the Forum Selection Clause covers disputes that relate to the contemplated transactions, but not consummated

[00:06:05] Speaker 01:
Well, I guess the only problem I have with this is that, you know, the only time that the word patent comes up in this non-disclosure agreement is in a provision which makes it very clear that nothing in this agreement has, confers any patent rights to anybody under any kind of license.

[00:06:28] Speaker 01:
So, if anything, the NDA expressly repudiates any kind of patent

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patent-related arrangement?

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Well, Your Honor, I think it's interesting that that aspect of this NDA, you know, we look at it as the opposite of what Samsung has argued.

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So the fact that this NDA makes clear that Canoe was not granting a patent license as part of this, the point was Samsung did not have the right to use Canoe's patented technology.

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This was the fact that Canoe was willing to share its proof of concept build and other detailed information

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was specifically because Samsung promised to use it only for the business purpose.

[00:07:10] Speaker 00:
That relates to a violation of the non-disclosure agreement, rightly or wrongly.

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What has that got to do with the IPR and why that's covered by the form selection clause?

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Right.

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So the information, because it was used by Samsung to copy the technology and introduce an infringing product, the copying is directly relevant to the obviousness issues

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that Samsung has raised.

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So copying, of course, is one of the secondary considerations.

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It has featured prominently in these IPR proceedings.

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So because there are the same operative facts, the fact that Samsung accessed Canoe's proof of concept build after they broke off the discussions, those same facts are prominently at issue in the IPRs.

[00:08:01] Speaker 02:
Those same facts led to Canoe's

[00:08:03] Speaker 02:
suit for patent infringement which caused Samsung to raise the affirmative defense of invalidity based on obviousness.

[00:08:14] Speaker 02:
It's all part and parcel of the same dispute.

[00:08:17] Speaker 01:
I guess I'd come down to the question again though, what does patent validity have to do with the breach of any provision or obligation in this NDA?

[00:08:31] Speaker 01:
Whether your patents are valid or invalid or challenged for validity or not challenged for validity, I don't see how that has anything to do with the obligations parties have under an NDA.

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

[00:08:53] Speaker 02:
So, you know, again, the Forum Selection Clause pertains to any dispute

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that it's not just arising under the NDA.

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So that would, you would have to have it be a dispute about is there a breach under the NDA.

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But this is a dispute not only arising under, but also the Forensic Election Clause covers disputes relating to, and then also not just relating to the NDA, but also the transactions contemplated.

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So I think our thought experiment has really helped me a lot.

[00:09:25] Speaker 02:
I'd just love to get it out real quick is imagine that tomorrow

[00:09:29] Speaker 02:
Samsung introduced a washing machine and it called the washing machine, this line of washing machines, their Canoe line of washing machines.

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And Canoe might say, wait a minute, we wonder if there's a trademark issue here.

[00:09:45] Speaker 02:
Well, the parties never talked about washing machines in 2012.

[00:09:48] Speaker 02:
Canoe's patents have nothing to do with washing machines.

[00:09:51] Speaker 02:
The discussions have nothing to do with trademarks.

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That would be unrelated to the transactions contemplated.

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But the dispute that we're talking about here is exactly what the transactions contemplated were.

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It's exactly what information can you disclose.

[00:10:06] Speaker 02:
That same information is the information that's at issue in the IPRs on copying.

[00:10:13] Speaker 02:
And so, you know, Samsung argued in the new current case that claims for patent infringement were related even though there was no consummated patent license in the new current case.

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They said that because copying was alleged,

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The NDA that they drafted was broad enough and needs to be interpreted broadly under New York law.

[00:10:34] Speaker 02:
It was broad enough to cover claims for patent infringement because there was an allegation of copying of the confidential information that was disclosed.

[00:10:43] Speaker 02:
It's exactly the situation we have here, Your Honors.

[00:10:47] Speaker 01:
That's a district court opinion, right?

[00:10:50] Speaker 02:
That is a district court opinion.

[00:10:52] Speaker 02:
That's correct.

[00:10:54] Speaker 02:
So, you know, here the language of the form selection clause, it has the word must, so it's the shall language.

[00:11:05] Speaker 02:
The Supreme Court has explained that form selection clauses are presumptively valid unless they're clearly unreasonable or fraudulent.

[00:11:17] Speaker 02:
We have the language here in the form selection clause

[00:11:20] Speaker 02:
that disputes must be instituted, quote unquote, exclusively in a court of competent jurisdiction located within the borough of Manhattan and in no other jurisdiction.

[00:11:34] Speaker 02:
So these are key words explaining that you can't have a parallel proceeding.

[00:11:42] Speaker 02:
It's exclusively in New York and nowhere else.

[00:11:47] Speaker 02:
And I would focus your honors

[00:11:49] Speaker 02:
on the meaning of the transaction's contemplated language, Samsung's interpretation would render that phrase superfluous, which clearly cannot be the case.

[00:12:00] Speaker 02:
So I'll reserve the, I think, eight seconds I have left for rebuttal.

[00:12:05] Speaker 03:
We'll save you rebuttal time.

[00:12:06] Speaker 03:
Any more questions for Mr. Goldberg at the moment?

[00:12:11] Speaker 00:
No.

[00:12:12] Speaker 03:
Okay, then we'll hear from the other side.

[00:12:14] Speaker 03:
Mr. Maroulis.

[00:12:17] Speaker 05:
Good morning, and may it please the court.

[00:12:19] Speaker 05:
This is Victoria Merlis, counsel for Appellee Sampson.

[00:12:26] Speaker 05:
Your honor, I'd like to start where the court questioned the appellant, which is the difference between licenses and nondisclosure agreements.

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In this case, the language of the nondisclosure agreement is extremely clear.

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The agreement is entirely concerned with confidentiality of information.

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and protection of that confidentiality.

[00:12:48] Speaker 05:
On its face, the non-disclosure agreement expressly disavows any notion that... Well, Ms.

[00:12:56] Speaker 00:
Marillis, this is Judge Prouse.

[00:12:57] Speaker 00:
Sorry to interrupt, but time is limited.

[00:13:00] Speaker 00:
What is your response to your friend's argument that there is some relationship between this non-disclosure agreement

[00:13:09] Speaker 00:
and the IPR proceeding because copying is part and parcel of the non-disclosure agreement and that is an important factor or might be an important factor in adjudication of the IPR.

[00:13:23] Speaker 00:
What's your answer to that?

[00:13:25] Speaker 05:
Your Honor, the allegations of copying in IPRs are not relevant to this analysis for several reasons.

[00:13:32] Speaker 05:
One, you can breach a nondisclosure agreement without any copying at all, and one can also copy information for secondary edition purposes without any reference to the nondisclosure agreement.

[00:13:45] Speaker 05:
In fact, the district court found that the impact of the IPRs in any discussion there will have

[00:13:52] Speaker 05:
nothing, no effect on the NDA breach claim in the district court.

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And the district court relied on Canoe's own admission in the motion to stay briefing that the IPRs will not have effect on the NDA breach.

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The second reason is that most of the IPR proceedings are actually concerned with anticipation, not obviousness.

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There is only one claim per patent claim, five

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that has following obviousness grounds.

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So, if Samsung were to proceed only on anticipation in the IPRs, the discussion wouldn't be relevant at all.

[00:14:28] Speaker 05:
And finally, the district court gave a little... So, 103 is part of the IPR.

[00:14:32] Speaker 01:
You haven't abandoned your 103 argument in the IPR, is that right?

[00:14:38] Speaker 05:
That's correct, Your Honor.

[00:14:40] Speaker 01:
We are proceeding... So, until you abandon that, it's part of the case.

[00:14:46] Speaker 01:
And we have to...

[00:14:47] Speaker 01:
Therefore, confront the arguments here.

[00:14:52] Speaker 05:
Yes, Your Honor.

[00:14:53] Speaker 05:
The overlap of any potential allegations that can be made does not make IPRs related to arising out of this agreement.

[00:15:03] Speaker 05:
Under New York law, the related to and arising out of language is not unlimited.

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And the district court cited specifically what case law

[00:15:14] Speaker 05:
that suggests that transaction contemplated hereby has to do with what is in the agreement and has to be derived from the agreement.

[00:15:23] Speaker 05:
Here, transaction contemplated hereby is exchange and protection of confidential information because that is all the agreement discusses, that is all the agreement is directed to.

[00:15:36] Speaker 05:
And in addition to paragraph eight that the court pointed out during appellant's argument,

[00:15:42] Speaker 05:
that this agreement is not a license and is not intended to grant any rights or obligations in the license.

[00:15:50] Speaker 05:
There is a further provision in section nine which says that this is not a commitment to have any business relationship or engage in any business relationship.

[00:16:00] Speaker 05:
This particular non-disclosure agreement could not be more clear that it excludes any license or any other formal business relationship and only

[00:16:09] Speaker 05:
direct itself to disclosure and protection of information.

[00:16:15] Speaker 05:
For that reason, the case law that Canoe relies on in its briefing is an opposite because this court has considered whether patent disputes arise out of or related to patent license agreements or patent settlements.

[00:16:31] Speaker 03:
So that raises quite an interesting question.

[00:16:34] Speaker 03:
Let's just, I'm going to present a hypothetical.

[00:16:37] Speaker 03:
Let's say that Canoe sues Samsung for patent infringement in Texas, which Canoe presumably can do since they're a Texas company.

[00:16:48] Speaker 03:
Would Samsung say, no, you're barred by this agreement.

[00:16:51] Speaker 03:
You must sue us in New York, which is what Canoe apparently thought they had to do.

[00:16:58] Speaker 05:
Your Honor, this depends on what the allegations look like specifically.

[00:17:02] Speaker 05:
For example, in this case, the Tappan claim is paired with a non-disclosure breach claim.

[00:17:09] Speaker 05:
So it has to be brought in New York because there's an NDA non-disclosure violation allege.

[00:17:15] Speaker 03:
The charge was infringement.

[00:17:18] Speaker 03:
Was there no charge of infringement?

[00:17:21] Speaker 05:
and they're all going to be the charge of infringement so that they are of both the patent infringement claim and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and and

[00:17:48] Speaker 05:
the claims that are assorted and what they can specifically permit.

[00:17:52] Speaker 03:
That's interesting because it does look as if Samsung's interest in a non-disclosure in a choice of forum was to move this Texas patentee out of Texas and into New York.

[00:18:10] Speaker 05:
Your Honor, this is the new current case in Texas, and that case is quite different because the dispute there was whether the second 2016 non-disclosure agreement covered the same confidential information as the earlier 2015 non-disclosure agreement, and that case also included trade secret claims.

[00:18:31] Speaker 05:
Here, it's a very different situation because we don't have trade secret claims and we're looking at IPRs, which is a

[00:18:39] Speaker 05:
forum for adjudication of validity and all PTAB is concerned with is

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validity or invalidity of can use patents on two patents that the IPRs were declared on.

[00:18:51] Speaker 05:
So the new current case has a different posture, different application, and the argument over drugs was not over the what proceedings are implied, but what facts and claims are intermingled together.

[00:19:07] Speaker 05:
The second can you, I'm sorry, the second new current case in the Southern District of New York

[00:19:12] Speaker 05:
actually resulted in a denial of injunction when Samson filed IPRs and the other sides fought to enjoin those IPRs.

[00:19:22] Speaker 05:
The only case that has discussed injunction of IPRs in the context of the non-disclosure agreement, and it also denied the injunction there.

[00:19:34] Speaker 05:
And I should point out that not a single decision of this court or any trial court have granted injunction of IPRs

[00:19:42] Speaker 05:
based on non-disclosure agreements, such as here, or any other type of non-disclosure agreement itself.

[00:19:51] Speaker 00:
Ms.

[00:19:51] Speaker 00:
Malone, could you just... This is Judge Prost.

[00:19:55] Speaker 00:
This is a little off track, but I'm just interested as to what the status is of the IPR proceedings at this point in time.

[00:20:03] Speaker 05:
Yes, Your Honor.

[00:20:04] Speaker 05:
We had a hearing on June 30, and the final written decision is expected by September 24.

[00:20:13] Speaker 00:
Thank you.

[00:20:15] Speaker 05:
Your Honor, to go back to the main argument, the district court did not abuse its discretion in announcing the four injunction factors.

[00:20:25] Speaker 05:
We already briefly addressed the merits, or the likelihood of success in the merits.

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And that factor is favorable to CUNY's application for injunction because the form selection clause

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does not cover the IPR proceeding either through related to agreement language or related to transaction contemplated here by language.

[00:20:49] Speaker 05:
But the court has also addressed several other factors that I'd like to go over briefly.

[00:20:54] Speaker 05:
On the irreparable harm

[00:20:58] Speaker 05:
First of all, there is a very substantial delay in bringing the motion here.

[00:21:03] Speaker 05:
Canoe waited seven months after the filing of the IPRs to bring the preliminary injunction motion.

[00:21:10] Speaker 05:
Preliminary injunction is extraordinary relief and delay of any kind, let alone six or seven months, is fatal to the injunction application.

[00:21:20] Speaker 05:
The cases such as

[00:21:22] Speaker 05:
nomadic we own which have been there denied injunctions or uh... the delay of and little of five months and this is to be contracted with some cases of this court uh... granted injunction where deprecation with the media but the district court also uh... found other uh... basis for the lack of irreparable harm one word that the additional expense and additional uh... work implied in the act i've got proceedings

[00:21:52] Speaker 05:
is not a cognizable harm.

[00:21:54] Speaker 05:
That is for the Frada case.

[00:21:56] Speaker 05:
And in this case, it's not a harm to litigate and choose for at the same time because the proceedings in the district court are state and the community can focus on the PR proceedings.

[00:22:08] Speaker 05:
And finally, the court looked at whether a risk of invalidation of a patent could be a cognizable harm and found that it could not rely on part of New Carlin Southern District decision or part of

[00:22:21] Speaker 05:
other Jewish students.

[00:22:23] Speaker 05:
This case is different from instances such as Dodo case, for example, where a party filed specifically an affidavit about the difficulty of complying with two proceedings at the same time because the company was small and they didn't have enough employees.

[00:22:40] Speaker 05:
So, in other words... This is Judge Prost.

[00:22:44] Speaker 00:
Wasn't the Dodo case also involving a license?

[00:22:49] Speaker 00:
and non-challenge clause as well?

[00:22:53] Speaker 05:
That is correct.

[00:22:53] Speaker 05:
Dodo case involved a license, in that instance it's not applicable to this case, but it also had a very express no-challenge clause.

[00:23:03] Speaker 05:
So there was not a dispute there that validity could not be challenged in that instance, which is different from

[00:23:11] Speaker 05:
from this current instance.

[00:23:14] Speaker 05:
The other two factors that the court also addressed were balance of hardship and public interest.

[00:23:20] Speaker 05:
And specifically in the balance of hardship, the court pointed out that Samsung had only one year from the service date to bring IPRs and it would be harmed if it couldn't proceed because they would lose forever that right.

[00:23:37] Speaker 05:
whereas communities could proceed in the IPR forms and still litigating this report after the state.

[00:23:45] Speaker 05:
And the public interest factor, Your Honor, dovetails with the alternative policy arguments that the attorneys are making here.

[00:23:56] Speaker 05:
We should say that this case can be resolved following on the language of the NDA at issue, and under that language, the district court correctly interpreted that.

[00:24:08] Speaker 05:
But we also made an alternative additional policy argument, which is the need for the clear

[00:24:17] Speaker 05:
If one is to lose ability to challenge patents in the TTAB proceedings, which were set up by Congress as a specific venue, specific forum, to weed out bad patents and to keep the patent system robust.

[00:24:36] Speaker 05:
And in that section of our brief, we addressed the policy concerns with using a very bare

[00:24:43] Speaker 05:
provisions such as one here in NDA that does not have a clear statement of intent to disclaim validity challenge to bar a party from appealing to the IPRs.

[00:25:00] Speaker 05:
And this leaves the basis from the earlier cases and it's the same argument that underlies our public interest arguments and the clear statement argument as well.

[00:25:23] Speaker 03:
All right, anything else that you'd like to tell us?

[00:25:29] Speaker 05:
Your Honor, in sum, I would ask the court to affirm the district court's ruling.

[00:25:35] Speaker 05:
The district court correctly balanced the four factors and did not err in interpreting the plain language of the nondisclosure agreements.

[00:25:46] Speaker 05:
The district court correctly ruled on the likelihood of successful merits and also correctly balanced the remaining

[00:25:54] Speaker 05:
factors of the injunction.

[00:25:57] Speaker 05:
So unless the court has any additional questions for that police, we would wrestle with these for the rest.

[00:26:06] Speaker 03:
Any more questions for Ms.

[00:26:08] Speaker 03:
Marulis?

[00:26:09] Speaker 03:
No, thank you.

[00:26:10] Speaker 01:
No, thanks.

[00:26:11] Speaker 03:
All right.

[00:26:12] Speaker 03:
Thank you, counsel.

[00:26:13] Speaker 03:
We'll hear from Mr. Goldberg.

[00:26:15] Speaker 03:
Thank you.

[00:26:17] Speaker 02:
Thank you, Your Honors.

[00:26:18] Speaker 02:
Dampstong's counsel has made reference to there being no abuse of discretion.

[00:26:24] Speaker 02:
The abuse of discretion standard, of course, we believe there is an abuse of discretion here, but importantly, there's an abuse of discretion where the decision is based on an erroneous interpretation of a contract, which is the case here.

[00:26:40] Speaker 02:
It's undisputed that under New York law, contract interpretation is reviewed de novo.

[00:26:48] Speaker 02:
there's no deference that's required to be given to Judge Rommelos' interpretation of the contract.

[00:26:56] Speaker 02:
Judge Prost referenced or asked about the status of the IPR proceedings, and that relates, I would say, perhaps to an issue of, you know, is this moot?

[00:27:07] Speaker 02:
Because we are at a far along stage here of these IPR proceedings.

[00:27:11] Speaker 02:
We've already gone through a trial.

[00:27:15] Speaker 02:
If that is on anyone's mind, I would say this is not a moot point because there still are further proceedings.

[00:27:21] Speaker 02:
There's an appeal as well as other potential proceedings here on this particular IPR.

[00:27:29] Speaker 00:
And then there's also... Mr. Perry, Mr. Goldberg, this is Jeff Proce.

[00:27:32] Speaker 00:
I don't want to prolong this, so I'm going to ask you a question.

[00:27:35] Speaker 00:
I hope you can give me a short answer.

[00:27:37] Speaker 00:
Just during paragraph 15, the sentence we look at is at the middle of the paragraph, any legal action or proceeding arising out of.

[00:27:49] Speaker 00:
But look at the first sentence of that paragraph.

[00:27:52] Speaker 00:
It talks about enforcing any rights arising out of relating to this agreement.

[00:27:58] Speaker 00:
So do you see a legal action, meaning an action to enforce rights arising out of the agreement?

[00:28:05] Speaker 00:
Is that how we reconcile those two as being the same thing?

[00:28:10] Speaker 02:
Well, the first sentence of paragraph 15 pertains to being entitled to recover attorney's fees.

[00:28:17] Speaker 00:
Right, but talking about the action, it talks about attorney's fees used to enforce any rights arising out of or relating to this agreement.

[00:28:29] Speaker 00:
So when we talk about legal action two sentences later, does legal action encompass or mean the same as an action to enforce rights arising out of relating to this agreement?

[00:28:43] Speaker 02:
I see, Your Honor's point.

[00:28:45] Speaker 02:
Now, I would argue, Your Honor, that the first sentence is specifically focused on the agreement, whereas the later sentence talks about agreement or the transactions contemplated.

[00:28:58] Speaker 02:
So these are

[00:28:59] Speaker 02:
within the same paragraph, I mean, it's sort of like a claim differentiation argument.

[00:29:04] Speaker 02:
The drafter here is using, you know, the term the agreement by itself in one place, and then it says the agreement or the transactions contemplated in the second place.

[00:29:16] Speaker 02:
And so that phrase or the transactions contemplated has to have meaning.

[00:29:21] Speaker 02:
Otherwise, that can't be the correct interpretation.

[00:29:26] Speaker 02:
Okay.

[00:29:26] Speaker 02:
Thank you.

[00:29:27] Speaker 02:
Thank you.

[00:29:28] Speaker 02:
Now, in terms of Samson's argument.

[00:29:36] Speaker 02:
Thank you, Your Honor.

[00:29:37] Speaker 02:
That there was delay.

[00:29:39] Speaker 02:
There was no unreasonable delay here.

[00:29:42] Speaker 02:
Canoe raised this issue.

[00:29:44] Speaker 02:
In the PTAB, we believe that the PTAB should have addressed the issue, but chose not to.

[00:29:49] Speaker 02:
And it was only after they said go to the district court that we went to the district court, rather than litigating the same issue in parallel in two places.

[00:29:58] Speaker 02:
And the delay issue, that was not a basis for Judge Ramos' decision regarding irreparable harm.

[00:30:06] Speaker 02:
With respect to the Dodo case being, you know, there was a license agreement, the real question there is what was the scope of the Forum Selection Clause?

[00:30:16] Speaker 02:
So in Dodo case, the Forum Selection Clause was actually very narrow and only pertained to disputes, quote, arising out of or under this agreement.

[00:30:26] Speaker 02:
So it was very significant that that was a license agreement.

[00:30:31] Speaker 02:
But here, our language of our forum selection clause is broader.

[00:30:36] Speaker 02:
And so it doesn't matter that we're not talking about a license agreement.

[00:30:41] Speaker 02:
As for Samsung's argument that there needs to be a clear statement, that's an argument that was never raised below.

[00:30:47] Speaker 02:
This is an argument that was waived.

[00:30:49] Speaker 02:
We also think the argument has no merit for the reasons that we explained in our brief.

[00:30:54] Speaker 02:
But we also think that this is clear.

[00:30:57] Speaker 02:
When it says any, any means any, right?

[00:31:00] Speaker 02:
So it could have said any patent case, any trademark case.

[00:31:04] Speaker 02:
It didn't, but if you don't spell it out and you just say any, the general includes the specific.

[00:31:10] Speaker 02:
So with all that said, I really appreciate your honest time.

[00:31:14] Speaker 02:
Thank you so much.

[00:31:15] Speaker 03:
Any more questions for Mr. Gilbert?

[00:31:17] Speaker 03:
No, thank you.

[00:31:18] Speaker 02:
No, thanks.

[00:31:19] Speaker 03:
Thanks to both counsel.

[00:31:21] Speaker 03:
The case is taken under submission.

[00:31:23] Speaker 03:
And that concludes this panel's argument cases for today.