[00:00:00] Speaker 00:
argument is 20-1962 SPIP litigation group versus Apple.

[00:00:06] Speaker 00:
Mr. Fenster, whenever you're ready.

[00:00:09] Speaker 05:
Good morning, Your Honors, and may it please the Court.

[00:00:12] Speaker 05:
The Court should reverse the exceptional case finding because the District Court abused its discretion under this Court's holding in BIAX versus NVIDIA.

[00:00:21] Speaker 05:
As in BIAX, the summary judgment order was based on a modification of the claim construction, adding for the first time

[00:00:29] Speaker 05:
the requirement of tracking and an always accurate database.

[00:00:33] Speaker 00:
Well, Mr. Bester, let me just, and this is Judge Proce, let me ask you, firstly, Bix was a non-precedential opinion of our court, right?

[00:00:41] Speaker 00:
Absolutely, Your Honor.

[00:00:42] Speaker 00:
Okay.

[00:00:43] Speaker 00:
Let me just ask you, hypothetically,

[00:00:46] Speaker 00:
setting aside your argument about whether there was a modification, do you agree that a judge could easily act within his or her discretion to award attorney's fees if a patentee obtains one claim construction to avoid invalidity and asserts the opposite claim construction to show infringement?

[00:01:08] Speaker 05:
I think that if the original claim construction did foreclose the infringement read,

[00:01:15] Speaker 05:
then yes, that is not the case here.

[00:01:19] Speaker 05:
So, Your Honor, go ahead.

[00:01:21] Speaker 00:
Well, wasn't the district, I mean, the district court here pulled out a lot of quotations from what counsel had said before us, et cetera.

[00:01:31] Speaker 00:
And he wasn't, there was a lot of citation to the record here in terms of ascertaining what your position was.

[00:01:39] Speaker 05:
Yes, Your Honor, but he did.

[00:01:44] Speaker 05:
Those statements are only material to the extent that they constitute a clear and unmistakable disclaimer of claim scope, to the extent they limit the claim construction.

[00:01:55] Speaker 05:
And, Your Honor, you would have to find that no reasonable litigant could find that those statements did not limit the claim.

[00:02:02] Speaker 05:
And here, we had good reason to believe that they did not.

[00:02:06] Speaker 05:
And our infringement theory

[00:02:09] Speaker 05:
which I'd like to explain to you, was absolutely consistent with the critical distinction that we made of the prior art.

[00:02:17] Speaker 05:
The accused products are different than the prior art and in a material way such that our infringement read here was not foreclosed either by the claim construction nor were they inconsistent with what we argued to this court in getting that plain meaning claim construction.

[00:02:39] Speaker 01:
Counsel, the district court characterized what your client was doing as duplicitous machinations.

[00:02:48] Speaker 05:
Yes, he did.

[00:02:49] Speaker 01:
And described it as a slick maneuver.

[00:02:53] Speaker 01:
That's pretty difficult characterizations to overcome.

[00:03:01] Speaker 01:
And the court seemed to reasonably find this was an exceptional case.

[00:03:09] Speaker 05:
Your honor, that's absolutely he did make those findings and he did use very harsh language and it was because he misunderstood our infringement read.

[00:03:18] Speaker 05:
And if I can walk you through our infringement read and why it was consistent with the statements that we made to this court and that the prior claim construction, um, I can, I can show you why this case is absolutely on all fours with this court's reasoning and by acts, which though not in precedential,

[00:03:37] Speaker 05:
is absolutely solid reasoning and should control here.

[00:03:41] Speaker 00:
Well, just before you get into that, I'll allow you to do what you're about to do, but I mean, you said all this to the district court and he just rejected it based on his read of the record, correct?

[00:03:55] Speaker 05:
That is true, your honor.

[00:03:56] Speaker 05:
And it's because I think he just misunderstood the accused products.

[00:04:02] Speaker 05:
He believed Apple and Cisco, when they represented to the court as they do here, that their products were doing exactly what the prior art that we distinguished does.

[00:04:13] Speaker 05:
And those statements are simply not correct.

[00:04:15] Speaker 05:
And I can show you in the record where that's true and how our infringement theory

[00:04:21] Speaker 05:
differed from the prior art and was consistent because the accused products differ in a material way from the NetBIOS and WINS prior art references that were distinguished in the prior case.

[00:04:35] Speaker 05:
So if I can walk you through our infringement theory.

[00:04:37] Speaker 05:
This patent has to do with setting up a point-to-point communication call for voice-over IP.

[00:04:45] Speaker 05:
So two IP phones that connect to the internet.

[00:04:49] Speaker 05:
The problem is that when they connect, they have different IP addresses every time they connect.

[00:04:55] Speaker 05:
So your phone number will have a different IP address associated with it every time you connect.

[00:05:01] Speaker 05:
So you need a server to keep track of each phone's IP address when they connect.

[00:05:08] Speaker 05:
So claim one of the 704 patents is representative.

[00:05:13] Speaker 05:
That's at page 134 of the record.

[00:05:16] Speaker 05:
It's in his order.

[00:05:18] Speaker 05:
And what it requires is code for transmitting to the server a query as to whether the second process, that's the callee, is connected.

[00:05:28] Speaker 05:
Code for receiving the protocol when it is connected and responsive to that address, establishing a point-to-point communication.

[00:05:35] Speaker 05:
Okay.

[00:05:36] Speaker 05:
So what's happening is this is sending a query to say, is it connected before

[00:05:45] Speaker 05:
before the server provides the IP address to the caller phone to try to establish the point-to-point communication link with the callee.

[00:05:57] Speaker 05:
That was the key distinction.

[00:05:59] Speaker 05:
And so as Apple recognizes in its brief at page 26, the critical distinction that we asserted below was that the prior art failed to determine

[00:06:14] Speaker 05:
whether the second computer is online.

[00:06:17] Speaker 05:
Instead, the PriorArt only consulted a registration database which had potentially stale information.

[00:06:25] Speaker 05:
That was not enough.

[00:06:27] Speaker 05:
Just checking a stale registration was not enough.

[00:06:31] Speaker 05:
And so the PriorArt just said, was it registered before?

[00:06:35] Speaker 05:
And if so, I'm going to give that IP address to the caller and let it try to establish a call, even though it may be a bad IP address now.

[00:06:43] Speaker 01:
You provided a one-page declaration of former colleague Judge Michel.

[00:06:52] Speaker 01:
He was a distinguished judge to be sure, but he wasn't a judge on this case.

[00:06:59] Speaker 01:
Did he attend all the proceedings?

[00:07:02] Speaker 05:
He did not attend all the proceedings.

[00:07:03] Speaker 05:
He was hired as a consultant in connection with the appeal from the summary judgment order, so he reviewed

[00:07:10] Speaker 05:
all of the summary judgment materials, including all of the statements that were quoted from Mr. Wodarski in the Samsung case going forward.

[00:07:22] Speaker 05:
And he testified very clearly in his deposition that he read those statements, disagreed that those constitute a disclaimer, and did not believe them properly part of the claim construction.

[00:07:34] Speaker 05:
And our point with that is that evidence is

[00:07:37] Speaker 05:
that reasonable minds can differ whether those statements constitute a disclaimer or not.

[00:07:43] Speaker 01:
This isn't a 51-49 issue.

[00:07:45] Speaker 01:
This was a question of the judge determining how litigation was conducted before him.

[00:07:54] Speaker 05:
That's correct, but it all comes down to whether or not those statements were limiting

[00:08:00] Speaker 05:
of the claim scope, and that comes down to whether they were disclaimer or not.

[00:08:06] Speaker 05:
And no prior court had so held.

[00:08:09] Speaker 05:
This court, after hearing those exact same statements that Judge Alsop relied on, this court said plain meaning.

[00:08:17] Speaker 05:
This court in its SIPNET and Samsung decision said the proper claim construction listening to all those statements was plain meaning.

[00:08:26] Speaker 05:
It made no reference to disclaimer.

[00:08:28] Speaker 05:
It made no reference to estoppel.

[00:08:30] Speaker 05:
And importantly, the claim construction did not include any reference to an always accurate database.

[00:08:37] Speaker 05:
And because it didn't include an always accurate database, it wasn't until, so Your Honor, I'll just back up a second.

[00:08:51] Speaker 05:
This court, in giving the SIPNET and Samsung decisions, hearing the statements by Wodarski that Judge Alsop said constitute a disclaimer and require that the claims be limited to an always accurate database, this court said the proper construction was plain meaning.

[00:09:10] Speaker 05:
It made no reference to a database, neither did the party's construction, and it wasn't until the summary judgment

[00:09:16] Speaker 05:
order where the court clearly limited the claims to the Always Accurate Database, even though the claims don't even reference the database.

[00:09:27] Speaker 05:
He did so based on a finding of a parent disclaimer, but that was not in the prior claim construction.

[00:09:33] Speaker 05:
That's why this case is on all fours with BIACs.

[00:09:37] Speaker 05:
Now, Your Honors, this court, or Apple and Cisco, told Judge Alsop, and they tell you,

[00:09:43] Speaker 05:
Apple at page 12 of the brief and Cisco at page 36, that their products merely do the same thing as the Winsnet bios.

[00:09:53] Speaker 05:
And the court below bought that.

[00:09:56] Speaker 05:
And it is just not true, and I'll show you in the record why.

[00:10:00] Speaker 05:
The Winsnet bios had a stale registration.

[00:10:04] Speaker 05:
The accused products also have a registration database.

[00:10:08] Speaker 05:
But they do something more.

[00:10:09] Speaker 05:
They don't just check the database, get the IP address and provide it to the caller and say, good luck, see if that works.

[00:10:16] Speaker 05:
Instead, there's a protocol where they send messages.

[00:10:20] Speaker 05:
The server sends a signaling message called an invite message to the callee phone to determine if it's online now.

[00:10:29] Speaker 05:
And it's only after making sure that it is currently online at the time of the query

[00:10:36] Speaker 05:
that it will then provide the IP address to the caller to complete that point to point communication.

[00:10:41] Speaker 05:
That is the critical distinction between the accused products and the prior art.

[00:10:47] Speaker 05:
And that is why our infringement read was not inconsistent with the prior claim construction or the critical distinction that we told this court distinguished our claims from

[00:11:02] Speaker 05:
the prior art, because the prior art didn't do anything more.

[00:11:05] Speaker 05:
As the Samsung court noted, it neither tracked nor checked to determine.

[00:11:12] Speaker 05:
That's a 3588 of the appendix in the Samsung opinion.

[00:11:17] Speaker 05:
And so the Samsung court specifically recognized that within the scope of plain leaning was checked to determine as well as tracking.

[00:11:27] Speaker 05:
And it's critical that your honors understand that the

[00:11:31] Speaker 05:
cues products differed materially from the prior art.

[00:11:38] Speaker 05:
Our infringement read was consistent, and it wasn't foreclosed by the prior construction until the court adopted the limitation of an always accurate database.

[00:11:49] Speaker 05:
And it materially did that at page 144 in the order.

[00:11:53] Speaker 05:
And in the order on fees, it notes that that was the key holding of the summary judgment order.

[00:11:58] Speaker 05:
And that brings, go ahead, Your Honor.

[00:12:00] Speaker 00:
Actually, I was going to ask Joseph, was that the final bell, or was that just that Mr. Fenster is into his rebuttal?

[00:12:08] Speaker 02:
That is for Mr. Fenster's rebuttal time.

[00:12:10] Speaker 02:
The timer was paused while we got Mr. Wilcox back on the conference.

[00:12:13] Speaker 00:
All right.

[00:12:14] Speaker 00:
OK.

[00:12:15] Speaker 00:
Mr. Fenster, you're into your rebuttal, but your choice of use of your time.

[00:12:19] Speaker 00:
So please proceed if you wish.

[00:12:21] Speaker 05:
Thank you, Your Honor.

[00:12:22] Speaker 05:
So Your Honor, that brings us squarely within the scope of FIACS,

[00:12:29] Speaker 05:
because the prior claim construction did not have an always accurate database.

[00:12:34] Speaker 05:
And yes, the court did give very harsh language.

[00:12:38] Speaker 05:
It received our argument poorly.

[00:12:40] Speaker 05:
But it was because the court misunderstood our theory of the case.

[00:12:47] Speaker 05:
And that is clear from his order on summary judgment at page 16, which is 147 of the record, which said that,

[00:12:58] Speaker 05:
He was saying instead when the accused server receives an invite, it simply attempts to make the requested call using the periodically updated registration information regardless of whether that second process is actually online or not.

[00:13:13] Speaker 05:
That's the critical misunderstanding.

[00:13:16] Speaker 05:
That is not the call.

[00:13:18] Speaker 05:
That was the signaling.

[00:13:19] Speaker 05:
At that point, the server has not provided the IP address to the caller to attempt to make

[00:13:28] Speaker 05:
the point-to-point communication link.

[00:13:30] Speaker 05:
That doesn't happen until it verifies that it's online.

[00:13:34] Speaker 05:
And that was the key distinction that I think the district court missed, and why he thought we were inconsistent with the statements before the court.

[00:13:43] Speaker 05:
I'll reserve my rebuttal time.

[00:13:44] Speaker 05:
Thank you.

[00:13:45] Speaker 00:
OK.

[00:13:46] Speaker 00:
Mr. Swanson.

[00:13:48] Speaker 03:
Thank you, Chief Judge.

[00:13:49] Speaker 03:
Good morning, and may it please the court.

[00:13:51] Speaker 03:
My name is Reed Swanson, representing Apple.

[00:13:53] Speaker 03:
The question before this court is whether the district court abused its discretion when concluding the straight path litigation position made this case stand out.

[00:14:02] Speaker 03:
The answer is no.

[00:14:03] Speaker 03:
Twice, the straight path stood before this court and took a narrow view of the scope of its patent claim only to turn around and take the opposite position before the district court in this case.

[00:14:13] Speaker 03:
The district court, which lived with this case for four years, properly factored those, quote, duplicitous machinations

[00:14:19] Speaker 03:
into its analysis and concluded that combined with a substantively weak position on the merits, this case stood out.

[00:14:26] Speaker 03:
And we have just a couple of points we'd like to make in response to straight past arguments today.

[00:14:30] Speaker 03:
First, their appeal rests on a fundamentally flawed view of the law.

[00:14:35] Speaker 03:
They're asking this court to say that if there is ever any daylight between the text of a claim construction order

[00:14:41] Speaker 03:
and the text of the summary judgment opinion, these are off the table.

[00:14:45] Speaker 03:
But that is not the law.

[00:14:46] Speaker 03:
Octane Fitness rejected those kinds of rigid tests and held that the statutory text is inherently flexible and looks to the totality of the circumstances.

[00:14:56] Speaker 03:
Second, applying that correct legal standard, the district court reasonably concluded that two considerations made this case stand out.

[00:15:03] Speaker 03:
The first are the shifting stands of straight paths claim construction

[00:15:07] Speaker 03:
And the second is an infringement position that was incompatible with this court's claim constructions in SIPNET and SAMHSA.

[00:15:14] Speaker 03:
And finally, Your Honor, the district court properly awarded fees for the entire litigation because all of the problems with straight past positions stem from the briefing argument and opinion in SIPNET, which occurred in 2015 before this case was ever even filed.

[00:15:29] Speaker 01:
Counsel, your opponent argues that the district court misunderstood the case or at least their position.

[00:15:38] Speaker 01:
Can that qualify as an abuse of discretion?

[00:15:43] Speaker 03:
Not in this case, Your Honor, because the district court quite correctly pointed out that Straight Path's argument directly contradicted the position it took in the prior appeals and which was reflected in this court's opinion.

[00:15:56] Speaker 03:
That's an important component that Straight Path keeps trying to dodge.

[00:15:59] Speaker 03:
So at the prior appeal, I just want to read this exchange with the court because I think it's quite, from the SIP net argument, because I think it's quite illuminating.

[00:16:08] Speaker 03:
This court asked, is the difference in your invention that the database has to be updated when somebody logs off?

[00:16:16] Speaker 03:
And the answer was absolutely, and I say that for two simple reasons, and the first of those was one, is requires it, and that's the actual language used by the patentee.

[00:16:25] Speaker 03:
So they're saying at that point that the claim language is, requires a database that updates when somebody logs off.

[00:16:31] Speaker 03:
And then they turned around and told the district court that that wasn't true.

[00:16:35] Speaker 03:
in this case.

[00:16:36] Speaker 03:
And SIPnet actually did include that and refer to that in the opinion.

[00:16:40] Speaker 03:
If you look at the bottom of page 1362 in SIPnet, the court described an updating database and then it said that that is what must be happening if the connection server is going to do what the claim language requires.

[00:16:53] Speaker 03:
supply and answer to the query whether the second process is connected to the computer network.

[00:16:57] Speaker 03:
So there was a perfectly reasonable basis for the district court to conclude that that was part of the claim construction that this court issued in FitNet and not something that they had just said at argument.

[00:17:08] Speaker 03:
But even if it was something that they just said at argument and then took the opposite position later, that's still within the scope of the kind of litigation conduct that under Octane Fitness is fair game for a fees award.

[00:17:22] Speaker 03:
And because I don't think there's really much debate today that they sort of directly contradicted themselves with respect to how the patent claims work, that's really all this court needs to know to affirm.

[00:17:34] Speaker 03:
Now, they're trying to tell you today that there was a way that they could have made an infringement argument that was compatible even if you actually set aside the tracking and checking issue.

[00:17:45] Speaker 03:
But that doesn't work either.

[00:17:47] Speaker 03:
And this was reflected just as well in the summary judgment opinion, which is that their claim, as they argued it to the district court, requires the first process to ask about the online status as of the very moment that the first process makes the query to the server.

[00:18:10] Speaker 03:
But that's just not how the device has worked in this case.

[00:18:13] Speaker 03:
FaceTime asks the server a different question.

[00:18:16] Speaker 03:
It asks, do you have potentially stale registration data about a device?

[00:18:21] Speaker 03:
If the answer to that question is yes,

[00:18:23] Speaker 03:
then the server goes on to ask a different question to the second process, which is, do you want to accept a call?

[00:18:29] Speaker 03:
If the answer to that question is no, then the first process gets no further information about online status.

[00:18:35] Speaker 03:
It could be that the second process is online and just wants to ignore the call, or it could be that the second process is in fact offline.

[00:18:42] Speaker 03:
We just don't know.

[00:18:44] Speaker 03:
If the answer is yes, you still can't infer that at the time the second process confirms it was online, that at some point seconds or minutes earlier the second process was online at the time of the first process's query.

[00:18:58] Speaker 03:
So either way, even if you set aside this track or check theory altogether, their claim construction was incompatible with what this court said the plain language of the claim required in SIPPET.

[00:19:10] Speaker 03:
So I think that that really puts to rest the idea that there was a viable theory of infringement here.

[00:19:17] Speaker 03:
And the declaration from Judge Michel that Your Honor asked about earlier doesn't change things.

[00:19:23] Speaker 03:
As Your Honor pointed out, Judge Michel had a very limited exposure to this case and he testified about that himself in his deposition.

[00:19:29] Speaker 03:
He said that he spent about 14 hours with the case.

[00:19:34] Speaker 03:
He never read the fees briefing.

[00:19:35] Speaker 03:
He conducted no, quote, systematic review of the summary judgment proceeding.

[00:19:40] Speaker 03:
So on that limited view of the record, the district court properly concluded that its own experience with the case outweighed Judge Michelle's limited picture.

[00:19:50] Speaker 03:
And you don't have to take just our word for it.

[00:19:52] Speaker 03:
Judge Michelle said in his declaration, this is at Appendix 11098, Judge Althub has a broader and deeper knowledge of many aspects of this case than I do.

[00:20:01] Speaker 03:
And in many cases, I have no knowledge of certain aspects, as we've agreed.

[00:20:07] Speaker 03:
So Your Honor, the District Court properly looked to the full totality of straight past conduct and its litigating positions in this case.

[00:20:15] Speaker 03:
And looking at that picture, it found that this case stood out.

[00:20:18] Speaker 03:
That is the only test.

[00:20:19] Speaker 03:
There's no test about whether a reasonable litigant could have taken that position under other circumstances.

[00:20:26] Speaker 03:
And I think that this court really made that very clear in its opinion in Blackbird Technologies, which is 944 F3 at 915.

[00:20:37] Speaker 03:
There, the appellant similarly argued that the district court was wrong in assessing the substantive strength of its arguments because it hadn't concluded that the argument was objectively baseless.

[00:20:48] Speaker 03:
It only concluded that it was, quote, flawed.

[00:20:50] Speaker 03:
This court said that that was a perfectly appropriate consideration.

[00:20:54] Speaker 03:
That's the same is true here.

[00:20:56] Speaker 03:
And, in fact, you add that to misconduct and you have, I think, a case that very clearly stands out.

[00:21:02] Speaker 03:
Thank you.

[00:21:03] Speaker 00:
Thank you.

[00:21:05] Speaker 00:
Thank you.

[00:21:08] Speaker 04:
Good morning, Your Honor, and may it please the Court.

[00:21:10] Speaker 04:
Justin Wilcox on behalf of Cisco.

[00:21:12] Speaker 04:
This Court should affirm the District Court's award of exceptional case attorney's fees to Cisco for at least three reasons.

[00:21:18] Speaker 04:
First, this is a textbook exceptional case.

[00:21:21] Speaker 04:
Stray Path really did argue one position before this Court regarding validity and the opposite position when asserting infringement of the District Court.

[00:21:29] Speaker 04:
And I'd just like to briefly touch on that.

[00:21:30] Speaker 04:
There is absolutely no daylight between the claim instruction that this Court provided is sitting up and what the District Court applied here.

[00:21:39] Speaker 04:
The key to the non-affringement holding in the Disher Court was the temporal element of the claim construction.

[00:21:45] Speaker 04:
And that is at the time that the query is transmitted to the server.

[00:21:49] Speaker 04:
That's what the Disher Court focused on.

[00:21:51] Speaker 04:
And it's undisputed that Cisco's system did not know whether another phone was connected at the time that the query is transmitted to the server.

[00:21:59] Speaker 04:
In fact, it took an attempted call where the phone would actually ring and the caller would pick it up before there was any indication

[00:22:08] Speaker 04:
that the phone was connected.

[00:22:10] Speaker 04:
So what Strait Path pointed to, and what the district court pointed to in its summary judgment opinion on page 13 of its opinion, which is appendix 7576, is that a person picking up a phone, a ringing phone, that happens well after the query, and that's the only way that the Cisco system actually knew whether another phone was online.

[00:22:34] Speaker 00:
I'd like to move next.

[00:22:35] Speaker 00:
Mr. Wilcox, this is Judge Prost.

[00:22:37] Speaker 00:
I just want to, there's a second issue applicable to you all, and that's with regard to the fee arrangement, correct?

[00:22:45] Speaker 00:
Yes, Your Honor.

[00:22:46] Speaker 00:
Let me just add, isn't, given that the Supreme Court at least has rested or embraced to a certain extent this lodestar requirement,

[00:22:57] Speaker 00:
Notwithstanding whatever arrangement you have, isn't there an argument that you should have been able at least to keep and provide evidence of the hours billed and the reasonable rate in order for the special master here to be able to attribute the appropriate amount for attorney's fees?

[00:23:18] Speaker 04:
Your Honor, we understand that's what Strapout is arguing, but we disagree.

[00:23:22] Speaker 04:
Stray Path is asking for an inflexible rule that a party cannot receive an exceptional case fee award without performing an hourly lodestar.

[00:23:30] Speaker 04:
We're advocating a flexible rule that takes into consideration all the circumstances that show a fee request is reasonable.

[00:23:37] Speaker 00:
And we submit that the cases that Stray Path points to... Well, yeah, but how do you know it's reasonable if you have no tracking of the hours billed and a reasonable rate for attorneys?

[00:23:51] Speaker 04:
Your Honor, we have a lot of data points here.

[00:23:52] Speaker 04:
I would say lodestar data points that show that our fee is reasonable.

[00:23:56] Speaker 04:
First of all, we put in declarations for both law firms to describe for each month the litigation tasks each lawyer performed, for the demerits form, the percentage of the time that each of those people devoted to the case, and then the flat fee.

[00:24:10] Speaker 04:
So we call that a monthly lodestar.

[00:24:12] Speaker 04:
But we also provided additional information from Cisco's other law firm in this case, Baker Botts, that showed their hourly billable entries.

[00:24:21] Speaker 04:
And those entries show that Cisco's flat monthly fee payments totaled several hundred thousand dollars less than if it had actually paid by the hour.

[00:24:29] Speaker 04:
Now, we can also look to market benchmarks.

[00:24:32] Speaker 04:
We cited market benchmarks in the form of similarly situated exceptional cases in the district.

[00:24:39] Speaker 04:
We pointed to the kilopath case, which like our case, was resolved on a summary judgment non-infringement.

[00:24:46] Speaker 04:
The Northern District of California awarded a $5.3 million award.

[00:24:50] Speaker 04:
We also pointed to the Qualcomm case in the same district.

[00:24:53] Speaker 04:
That one went through trial, and we think that's relevant because our case resolved very close to on the EVA trial.

[00:25:00] Speaker 04:
And in that case, the district court awarded $6.7 million.

[00:25:04] Speaker 04:
And we also can look at the load start that Apple did here.

[00:25:08] Speaker 04:
That was an award of $2.3 million.

[00:25:10] Speaker 04:
So all those benchmarks show that our

[00:25:13] Speaker 04:
and what the district court of order was reasonable.

[00:25:17] Speaker 04:
But we also have the data that the court can look through.

[00:25:21] Speaker 04:
We have the declarations.

[00:25:22] Speaker 04:
We have the information that's provided about what happened.

[00:25:25] Speaker 04:
And the court actually went through it here and considered it and said, well, I don't think this is enough and cut it by 50%.

[00:25:32] Speaker 04:
But I think what sets apart this case from the Lodestar cases in the Supreme Court is really those cases occur in a different context.

[00:25:39] Speaker 04:
And that context is prevailing party fee

[00:25:42] Speaker 04:
shifting provisions in civil rights and other cases where the fee shifting happens as a matter of course without market rates and where clients typically don't pay their lawyers.

[00:25:53] Speaker 04:
Section 285 is different in all respects.

[00:25:56] Speaker 04:
First of all, fee awards are the exception, not the rule.

[00:25:59] Speaker 04:
Patent cases typically involve businesses that contract with their law firms at market rates, creating many market benchmarks.

[00:26:06] Speaker 04:
And third, patent litigants typically pay fees whether they win or lose.

[00:26:10] Speaker 04:
So they're not incentivized to pay more than reasonably necessary.

[00:26:14] Speaker 04:
And I think it's very important to highlight that the district court deals with all these different fee-shifting statutes.

[00:26:20] Speaker 04:
It deals with the civil rights type fee-shifting statutes that have an amount of course.

[00:26:25] Speaker 04:
It deals with section 285, where fee-shifting is the exception, not the rule.

[00:26:29] Speaker 04:
And it looked at all this case law, and it concluded that the civil rights fee-shifting cases do not limit section 285 to a low star.

[00:26:39] Speaker 04:
It's also important to recognize here that because exceptional cases really are exceptional, they're very rare, they're a remote possibility, that there's really not this concern for the gamesmanship and how attorneys keep fees.

[00:26:52] Speaker 04:
Like there is maybe in other contexts where firms may build their business model around the kind of automatic fee shifting statutes in these other cases.

[00:27:01] Speaker 04:
So there's really no argument here that, you know, in the patent context, the firms are driving their whole business model or driving their primary conduct on trying to game for an exceptional case fee award.

[00:27:14] Speaker 04:
Now, the other aspect that makes this different is with the lodestar, is that the lodestar, the whole point of it is to estimate or approximate what the market would have paid a lawyer for particular services.

[00:27:25] Speaker 04:
In fact, the Supreme Court makes that clear in Purdue.

[00:27:28] Speaker 04:
It says that the low star is supposed to roughly approximate the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour.

[00:27:38] Speaker 04:
Here, we don't need to estimate or approximate a number.

[00:27:41] Speaker 04:
We don't need to try to divine what the market would have done.

[00:27:44] Speaker 04:
We know both.

[00:27:46] Speaker 04:
It's what Cisco actually paid.

[00:27:48] Speaker 04:
That's where we should start.

[00:27:51] Speaker 04:
And what J-Path is asking is to ignore that.

[00:27:54] Speaker 04:
In a perfectly functioning market where

[00:27:56] Speaker 04:
We know what Cisco paid.

[00:27:58] Speaker 04:
We should ignore that and have Cisco try to make up what it would have paid based upon the Bill Blower.

[00:28:04] Speaker 04:
when it didn't actually pay that way.

[00:28:05] Speaker 04:
We think that's counterfactual, and we don't think that's reasonable, especially here, where we can look at these other benchmarks.

[00:28:13] Speaker 04:
For example, like I discussed, we can look at Cisco's firms that did keep track of billable hours and see that those hours are higher than what Cisco actually paid for the flat fees.

[00:28:23] Speaker 04:
We can look to the other market benchmarks, like the fee awards in other cases.

[00:28:28] Speaker 04:
We can look at the AI PLA litigation survey for what

[00:28:31] Speaker 04:
companies have paid for litigation in that district.

[00:28:35] Speaker 04:
So, you know, if the court were to decide that a Lodestar were required in this case, we think there's enough in this record to affirm even without reaching this issue of whether the Lodestar is required.

[00:28:47] Speaker 04:
So, you know, first of all, we have the Marist LOPs, my firm's modified Lodestar.

[00:28:52] Speaker 04:
We call it a monthly Lodestar with the information that we provided.

[00:28:56] Speaker 04:
We have Cisco's other firm, FakerBots, in their records.

[00:29:00] Speaker 04:
And we just simply ask the court that it rejects Stray Bat's attempt to zero out Cisco here, which would really be an unjustified windfall.

[00:29:12] Speaker 00:
OK, thank you.

[00:29:13] Speaker 00:
Mr. Fenster, you've got some time left.

[00:29:20] Speaker 00:
Mr. Fenster?

[00:29:21] Speaker 05:
I apologize.

[00:29:22] Speaker 05:
I was muted.

[00:29:23] Speaker 05:
Your Honor, thank you.

[00:29:26] Speaker 05:
I'd like to make three points.

[00:29:29] Speaker 05:
The infringement position was not inconsistent with the statements made to this court in CIPNET and Samsung because they were not disclaimer.

[00:29:39] Speaker 05:
Judge Michel specifically addressed this and I'll refer you to page 1111107, which is his deposition where he says, I reviewed at length and many, many times over every one of the exchanges between the three judges to see if there was any clear unmistakable disclaimer of claim scope.

[00:29:58] Speaker 05:
that would limit it, including whether it would limit it to the always accurate database.

[00:30:02] Speaker 05:
And I didn't think it was close.

[00:30:04] Speaker 05:
I didn't think Widarski made the disclaimer the judge also seemed to conclude that he had.

[00:30:08] Speaker 05:
And your honor, my point with that is those statements are only material if they constitute a disclaimer, which goes to claim construction.

[00:30:19] Speaker 05:
And I don't believe that any court can say,

[00:30:24] Speaker 05:
that it is exceedingly meritless to take a position that the former chief judge of the Federal Circuit believed was accurate.

[00:30:35] Speaker 05:
Reasonable minds can differ as to whether it was limiting of the claim's scope.

[00:30:39] Speaker 05:
This court had not so limited it before and the court below didn't do so until summary judgment and that puts us squarely within BIAC.

[00:30:48] Speaker 05:
The second point, Your Honor, Your Honors, is that, is their point, Mr. Swanson's point that we didn't meet the immediately that the timing point was wrong.

[00:31:00] Speaker 05:
And I'll point you to the Cole declaration in opposition where he says it happens immediately upon the query.

[00:31:08] Speaker 05:
This is at 6938 and 6940 and 7092 and 7093 for Cisco.

[00:31:16] Speaker 05:
And that's where he talks about the additional steps that Cisco and Apple take.

[00:31:24] Speaker 05:
So the invite is the query and specifically they point to, I'll point you to paragraphs 23 and 17 where he says it happened at the entire time.

[00:31:35] Speaker 05:
The third point, if you'll indulge me just for a few seconds, Your Honor.

[00:31:40] Speaker 05:
So the third point is the lodestar requirement is not our requirement, it's the Supreme Court's requirement.

[00:31:47] Speaker 05:
The lodestar, the Supreme Court has held that you have that the burden of proof in order to meet your burden of proof as to fees, you have to come up with reasonable hours and reasonable fees.

[00:32:00] Speaker 05:
That's the starting point and everything else is a modification of that.

[00:32:04] Speaker 05:
But you have to have that so you can test the reasonableness of the fees.

[00:32:10] Speaker 05:
And all of the Supreme Court case law requires that.

[00:32:13] Speaker 05:
There is no case cited by Cisco that doesn't require it.

[00:32:18] Speaker 05:
And so Cisco's award should be eliminated just because they didn't meet their burden of proof, despite being given multiple chances to do so by the district court.

[00:32:28] Speaker 00:
OK.

[00:32:28] Speaker 00:
Thank you.

[00:32:29] Speaker 00:
We thank both sides and the cases submitted.

[00:32:31] Speaker 00:
That concludes our proceeding for this morning.

[00:32:36] Speaker 02:
The time has come to adjourn from today to day.