[00:00:01] Speaker 04:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States in this honorable court.

[00:00:09] Speaker 05:
The first case for argument this morning is 20-1440, Traxel Technologies versus Nokia Solutions and Networks.

[00:00:18] Speaker 05:
Mr. Ramey, whenever you're ready.

[00:00:21] Speaker 02:
Good morning, Judge Prost, Judge O'Malley, and Judge Stull.

[00:00:25] Speaker 02:
If it pleases the court, may I begin?

[00:00:28] Speaker 02:
Please do.

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A pivotal issue in this appeal is whether the common claim term location needs construction, and if so, what is that proper construction?

[00:00:38] Speaker 02:
The district court improperly construed location to mean location that does not merely position the grid pattern.

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The district court's rationale for such construction is based on an improper reading of the prosecution history.

[00:00:51] Speaker 02:
Mr. Raby, this is Judge Stoll.

[00:00:53] Speaker 03:
How can you appeal this issue where you were found to have waived it by failing to timely object to the Magistrate Judge's report and then also you never raised the issue of waiver on appeal in your blue brief?

[00:01:10] Speaker 02:
Yes, I'll address those one at a time.

[00:01:14] Speaker 02:
What we did, in fact, bring up the waiver issue in our appeal brief on pages 16 through 18 of our brief.

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So I read enough of the objections that was particularly brought up.

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But addressing the other two points, Your Honor, starting with where the district court judge found that we had waived argument but not objected to the magistrate's ruling, there was no nettles notice.

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And I think we made this clear.

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in our briefing, but there was no medal.

[00:01:42] Speaker 03:
Can I back up for a second?

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You said you objected at pages or raised the issue on appeal at pages 16 through 18.

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Is that of your blue brief?

[00:01:52] Speaker 02:
Yes, sure.

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That's my, yes.

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In the objections, we did raise that issue with the court.

[00:02:00] Speaker 03:
I don't see where you noted at all that the district court found that you had waived the issue by not objecting.

[00:02:09] Speaker 03:
I don't see where you're challenging that at pages 16 through 18.

[00:02:14] Speaker 02:
Okay, and I was reading from the wrong portion, Your Honor.

[00:02:18] Speaker 02:
We did, in fact, challenge the judicial sort.

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We waived that projection in our motion to file the late claim construction objections.

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And so how we got there, though, to file those

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late objections with the fact that there was no no.

[00:02:36] Speaker 03:
Let me back up for a minute.

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I'm asking you if in your appeal before this court, you in your blue brief challenge the district court's finding of waiver.

[00:02:51] Speaker 02:
Yes, your honor, we did in fact challenge the district court's finding of waiver.

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And if you go to our reply,

[00:03:00] Speaker 03:
I understand, but I was asking if you mentioned it in your blue brief at all.

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Did you challenge it in your opening brief on appeal?

[00:03:11] Speaker 02:
No, Your Honor.

[00:03:11] Speaker 02:
That was not a challenge because it wasn't an issue we thought was brought up at the time.

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And so the way we had challenged it was through

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the motion for lead to follow the claim construction objections.

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And we thought we had maintained it through that maneuver, Your Honor.

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And then- Not withstanding the district court's holding that you had waived it by not objecting to the report of the Magister judge.

[00:03:32] Speaker 02:
Yes, Your Honor.

[00:03:33] Speaker 03:
That was how we were- You said you didn't think you needed to raise that issue in your opening brief.

[00:03:44] Speaker 02:
We had raised that issue, we thought, by maintaining the objections to the claim constructions, and that's how we proceed on that ground, and arguing that the Nettles Notice wasn't provided, and then again, arguing that the claim construction was incorrect and providing that rationale.

[00:04:02] Speaker 02:
And we got this basis from precedent from this court, particularly

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the, uh, the four C verse principi case, 284 Fed 1335, because the court had already passed upon those issues, the lower court we knew.

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And so what we were trying to do is we weren't waiving an issue.

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The issue was before the court.

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And so we weren't, we didn't think we had waived any issue at that time.

[00:04:29] Speaker 03:
Given the nature of the magistrate judge's claim construction decision, though, that Nell's notice doesn't apply, right?

[00:04:36] Speaker 03:
Because it's expressly provided for in the rules that objections must be made within a certain amount of time.

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Isn't that correct?

[00:04:44] Speaker 02:
Your Honor, I would respectfully disagree.

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In fact, the Douglas Court from the Fifth Circuit addressed that particular point when it said, regardless of whether or not there's a rule requiring the local and the state

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and the federal rules of civil procedure or the local rules, if that notice is not there, that can't be held against the party that received the notice or the lack of the Nettles notice.

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And I refer the court further to Perales versus Casillas as 950, said 2nd, 1066, which further certifies that when there's no Nettles notice, untimely objections are considered in the Fifth Circuit.

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And it's a, sorry, appellee's own brief

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recognize that that issue would be controlled by Fifth Circuit law.

[00:05:30] Speaker 04:
But, Counsel, isn't there a difference between 72A and 72B with respect to the Fifth Circuit's rules and cases regarding whether notice is needed?

[00:05:45] Speaker 02:
Yes, Your Honor, there is a whether notice is needed, but here there is no notice at all.

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And so I think basically what the Throis case says is when there is

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no notice and objections have been filed is that it is obvious the needs.

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So the whole reason of the notice is to prevent sandbagging the appellate courts, bringing up new issues.

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This is an issue that was briefed during the Markman proceedings, argued during the Markman hearing, filed and claimed to trust the objections, albeit outside the 14 days, but still filed those objections

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And then, ultimately, brought forward those same issues in the appellate brief.

[00:06:22] Speaker 04:
So there's been no... All right.

[00:06:23] Speaker 04:
But Counsel, can you just... I want to focus on the actual rules.

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Is it true or is it not that Douglas was discussing 72B?

[00:06:35] Speaker 02:
That's correct, Your Honor.

[00:06:36] Speaker 02:
And that was on an earlier, in fact, an earlier version

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of the rule of rule 56, I think at the time, I forget the exact one, but that was an early version when there was a different period of time for objection.

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And that's why we went forward and followed that case all up and then cited the Perales case, the 955th, 2nd, 10th.

[00:06:57] Speaker 04:
Which is also a 72B case, correct?

[00:07:02] Speaker 02:
Your Honor, actually, Your Honor, that's

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talking about untimely objections, so I think that was directly applicable to this particular situation, because we did in fact file objections later on.

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So whether or not it's on a dispositive matter or not, we did file those objections.

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We were anticipating, Your Honor, and I think a large part of the confusion here was that we've received rulings on our objections, and that was our

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our anticipation.

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It didn't come as quickly as we were hoping.

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So what we had done is we filed the late objections.

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And then further, I would add one more thing, Your Honor, that in an infringement analysis, this court is going to apply a correct construction of the term location, the correct construction of the term first computer to those issues.

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And so we think the issue is properly preserved because, like I said, we're not in any way sandbagging this court.

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We've been consistent in our positions

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throughout the proceeding.

[00:08:02] Speaker 04:
So you say that we regularly forgive waiver because we like to do our own analysis?

[00:08:11] Speaker 02:
No, Your Honor.

[00:08:12] Speaker 02:
I think I would actually go back to the, if I may, and pardon me, I disagree with that.

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I would go back to the Four Seat versus Principe case, where the court articulated four ways in which it would

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consider an issue, even if it did determine that this was an issue first time brought up on appeal that the lower court hadn't passed on it, which is we contend not the issue here.

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But the third reason that the appellate courts may apply the correct law even if the parties didn't argue it below, we think that is very applicable to the present situation where the court would apply the correct construction of the terms, even if it feels that maybe that issue had been not properly or been waived at the court below because

[00:08:52] Speaker 02:
during this infringement analysis, the court will apply a proper construction.

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So we don't, again, we don't see that this is an issue passed upon below because we've had the same issue consistently over and over and over again before the court.

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We haven't, in our minds, waived anything.

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And the district court, in fact, didn't consider objections.

[00:09:14] Speaker 02:
It just said we waived it so it's not entirely clear from the order of whether or not the court

[00:09:20] Speaker 02:
the district court considered a proper claim construction or not.

[00:09:23] Speaker 02:
It merely started with what the magistrate judge had construed the claims to be and made paid no regard to determine whether or not that was a proper construction.

[00:09:34] Speaker 05:
Mr. Ramey, this is Judge Prost.

[00:09:36] Speaker 05:
Moving on to another issue before your time runs out, I just want to clarify it.

[00:09:41] Speaker 05:
It's more of a housekeeping issue perhaps.

[00:09:44] Speaker 05:
On the 284 patent, you didn't

[00:09:48] Speaker 05:
appeal the invalidity determination of claim one of 284 in this case, correct?

[00:09:55] Speaker 02:
That's incorrect, Your Honor.

[00:09:59] Speaker 05:
You appealed the invalidity determination of 284 in this case, claim one?

[00:10:07] Speaker 02:
Your Honor, my apologies.

[00:10:09] Speaker 02:
Pardon me, pardon me.

[00:10:10] Speaker 02:
We left that issue, not to put too many issues before,

[00:10:15] Speaker 02:
the appellate court for the Coping and Verizon Sprint case.

[00:10:19] Speaker 02:
My apologies.

[00:10:20] Speaker 02:
That is correct.

[00:10:21] Speaker 05:
OK.

[00:10:22] Speaker 05:
So you didn't appeal the invalidity determination in this case.

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This case is separate and distinct from the other cases.

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That determination is therefore final, correct?

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And as a matter of collateral, let me finish my question, please.

[00:10:36] Speaker 05:
And as a matter of collateral estoppel, that claim is invalid and cannot be asserted.

[00:10:42] Speaker 05:
Am I right about that?

[00:10:46] Speaker 02:
Your honor, I would again refer the court to the four sheet versus principi and the four reasons that they articulate for considering issues like that.

[00:10:54] Speaker 02:
No, we wouldn't consider that that claim is necessarily invalid.

[00:11:00] Speaker 05:
These are two- Are you arguing that you didn't appeal it in your briefs, but you're appealing it now at oral argument?

[00:11:08] Speaker 05:
No, your honor.

[00:11:09] Speaker 05:
No, your honor.

[00:11:10] Speaker 05:
OK.

[00:11:10] Speaker 05:
So the issue was decided below.

[00:11:13] Speaker 05:
and you appealed other issues, and you did not appeal that issue, right?

[00:11:19] Speaker 02:
Yes, Your Honor, that's correct.

[00:11:20] Speaker 05:
OK, so why is there not collateral estoppel with that determination is therefore final, right, in this appeal, the determination of invalidity based on indefiniteness, right?

[00:11:35] Speaker 02:
I don't know, Your Honor, because we did discuss in our reply brief

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the appellee's position regarding claim one not being adequately disclosed, we do feel we addressed the issue.

[00:11:52] Speaker 02:
It wasn't one of our principal issues that we addressed, but we did handle it in our reply brief.

[00:11:58] Speaker 05:
Well, firstly, I mean, do you understand the difference between the original brief, what we call the blue brief, and the gray brief?

[00:12:06] Speaker 05:
And that we look to the blue brief to preserve issues and not issues in reply?

[00:12:13] Speaker 05:
You appreciate that, right?

[00:12:15] Speaker 05:
You understand that?

[00:12:16] Speaker 06:
Yes, Your Honor.

[00:12:17] Speaker 02:
Pardon me, Your Honor.

[00:12:18] Speaker 02:
Yes, Your Honor, I do.

[00:12:19] Speaker 02:
I think that when the issue was raised by the appellees concerning those issues, we addressed arguments that they made that then that issue is properly before them.

[00:12:31] Speaker 05:
You want to show me where you made the argument in gray?

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Not that I'm conceding that would be sufficient.

[00:12:37] Speaker 05:
But I'm just looking at gray.

[00:12:42] Speaker 05:
You're saying you appealed it in gray?

[00:12:46] Speaker 05:
Your appeal of that issue was in gray?

[00:12:49] Speaker 02:
Hold on one second here.

[00:12:54] Speaker 02:
I'm sorry.

[00:12:55] Speaker 02:
I'm not finding that citation right now.

[00:13:01] Speaker 05:
Well, I'm going to take a little context.

[00:13:03] Speaker 05:
And maybe I'm missing something, but I'm not seeing it.

[00:13:07] Speaker 05:
Maybe you can point me to it.

[00:13:09] Speaker 05:
Because I thought you just said you did argue it in gray.

[00:13:13] Speaker 02:
And I, Your Honor, may have... So let me ask you.

[00:13:35] Speaker 05:
I mean, you can come back and reply if you find something, but assuming that we don't find something in either blue or gray,

[00:13:42] Speaker 05:
I am correct, therefore, that that issue, that determination is final and can be used as a basis for collateral estoppel?

[00:13:51] Speaker 02:
I think that the court could take that tack.

[00:13:53] Speaker 02:
I think that we would argue still that the Forchy case allows the court to consider that this is exceptional circumstances, allows the court to consider the two appeals as they relate to one another, and if it determines

[00:14:09] Speaker 02:
through the Sprint and Verizon case that the claim should not have been invalidated, then it wouldn't be invalidated in the Nokia case.

[00:14:18] Speaker 02:
But I do understand the court's reasoning that would be one possible avenue.

[00:14:23] Speaker 02:
And I'll reserve the rest of my time, Your Honor.

[00:14:25] Speaker 02:
Thank you very much.

[00:14:26] Speaker 05:
All right.

[00:14:26] Speaker 05:
Does anyone on the panel have any further questions?

[00:14:30] Speaker 05:
Okay.

[00:14:31] Speaker 05:
Let's hear from the other side.

[00:14:33] Speaker 05:
Mr. Hamstra.

[00:14:35] Speaker 01:
Thank you, Your Honors.

[00:14:36] Speaker 01:
May it please the court, Nathan Hamstra, on behalf of the Nokia entities.

[00:14:41] Speaker 01:
I'd like to start on the waiver issues about which... Can I ask you... I'm sorry, Mr. Hamstra.

[00:14:47] Speaker 05:
I don't want to take too much of a shine.

[00:14:49] Speaker 05:
This is Judge Proutz.

[00:14:50] Speaker 05:
But it would be helpful for me.

[00:14:52] Speaker 05:
There are a bunch of related... There are four related district court cases.

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that were cited at the beginning of the brief.

[00:15:00] Speaker 05:
And I just wanted some clarity from you, just in terms of knowing between this case and the second case, there are two other cases that have been stayed.

[00:15:10] Speaker 05:
Can you just briefly explain what issues are related to which cases?

[00:15:18] Speaker 05:
Those other cases are about entirely different matters.

[00:15:23] Speaker 01:
So, Your Honor, I am very familiar with one of those other cases because Nokia is a party to another one.

[00:15:30] Speaker 01:
I am somewhat less familiar with the other case up on appeal here, and I am not really familiar with the fourth case.

[00:15:38] Speaker 01:
I think that may be an AT&T case.

[00:15:41] Speaker 05:
Okay, well, we know what the other case is here, so just tell us about your other Nokia case.

[00:15:45] Speaker 01:
That would be helpful.

[00:15:46] Speaker 01:
So there is a...PAMS asserted there are in the same family.

[00:15:52] Speaker 01:
There are largely shared issues with similar claim language relating to location in particular.

[00:16:01] Speaker 01:
And one of the bases we submitted or we desired for staying in that case is that the location and potentially computer issues from this appeal are going to be largely, if not totally, dispositive of that case as well.

[00:16:17] Speaker 05:
So we're talking about the two claim constructions presented in this case.

[00:16:21] Speaker 05:
Correct.

[00:16:22] Speaker 05:
Okay, thank you.

[00:16:23] Speaker 05:
That's helpful.

[00:16:25] Speaker 05:
Sorry to take your time.

[00:16:26] Speaker 01:
No worries.

[00:16:28] Speaker 01:
Thank you.

[00:16:30] Speaker 01:
First of all, Your Honors are exactly right that the Paroles and Nettles cases, Fifth Circuit cases, though I don't think expressly referring to Rule 72B, do refer to 28 U.S.C.

[00:16:44] Speaker 01:
636 B1B.

[00:16:47] Speaker 01:
And Rule 72B governs referrals of dispositive matters under that statutory provision.

[00:16:55] Speaker 01:
28 USC 636B1A is the provision regarding non-disposable matters, and that is governed by Federal Rule of Civil Procedure 72A.

[00:17:05] Speaker 01:
The Federal Circuit has already addressed the effect of a failure to file objections within the time period in the Fifth Circuit in its Talbert decision, which we cited in our papers, and it does amount to a waiver.

[00:17:20] Speaker 04:
Have you ever cited anything from the Fifth Circuit with respect to 72A other than non-precedential decisions?

[00:17:30] Speaker 00:
Your Honor, give me a moment.

[00:17:32] Speaker 00:
I thought we had cited that in our response brief.

[00:17:41] Speaker 04:
Well, there's a lot of non-precedential decisions.

[00:17:57] Speaker 01:
So Your Honors, the Martin V. Thomas and United States v. Renfro decisions we cited after the non-precedential Federal Circuit Talbert decision addressed waiver under 72A or 636B1A.

[00:18:11] Speaker 04:
And those are?

[00:18:15] Speaker 01:
Precedential.

[00:18:17] Speaker 04:
From the Fifth Circuit?

[00:18:19] Speaker 01:
From the Fifth Circuit, correct.

[00:18:20] Speaker 04:
Okay.

[00:18:22] Speaker 01:
And there's a footnote talking about the interplay between Rule 72A, Footnote 6, and 636B1A.

[00:18:32] Speaker 05:
Mr. Hamstra, your friend on the other side seems to think that our embank opinion and foresheet kind of alleviated his concerns we should have on this and also on the indefiniteness issue.

[00:18:45] Speaker 05:
Now I don't know that he cited that case in either the blue or the gray brief.

[00:18:53] Speaker 05:
So you may not be familiar with the case because it wasn't raised in the briefing.

[00:18:57] Speaker 05:
But are you and if you are, do you have anything to say about that?

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

[00:19:04] Speaker 01:
It was not cited and I am not familiar with the case.

[00:19:07] Speaker 01:
I was searching for it during his argument and was not able to locate it.

[00:19:13] Speaker 05:
And it was not cited in his briefs, correct?

[00:19:15] Speaker 01:
Not from my recollection and not from my scan of the cited authorities.

[00:19:26] Speaker 01:
And then in addition, turning to some other questions referenced by your honors, I agree, based on my reading of the briefs, the issue of claim one of the 284 patents was not addressed.

[00:19:40] Speaker 01:
As John and Zara are aware, we submit that Tracksville has waived its claim construction argument, so I wanted to quickly proceed and touch on some of the summary judgment of non-infringement issues.

[00:19:55] Speaker 05:
Could I just ask you quickly, just one more thing.

[00:19:57] Speaker 05:
Leaving waiver aside, location is a term in every claim that I think that's in dispute.

[00:20:05] Speaker 05:
If we reach the merits and we agreed with you on the location, would we need to discuss the second amendment, the, you know, the other claim construction issue presented here?

[00:20:16] Speaker 01:
You would not.

[00:20:17] Speaker 01:
Location is dispositive of all claims, and the computer bases for non-infringement is just a second independent basis for all but one of the claims.

[00:20:27] Speaker 05:
Okay, thank you.

[00:20:30] Speaker 01:
So, turning to summary judgment on the location,

[00:20:35] Speaker 01:
First, we submit that it's undisputed and there is no evidence in the record citing to the contrary that the accused Nokia products do not use location for individual wireless devices.

[00:20:50] Speaker 01:
So Nokia's witnesses testified that the KPIs, these key performance measurements that tracks all sites, are collected across an entire cell that's at pages 36, 18 through 19 of the appendix.

[00:21:04] Speaker 01:
The same witness testified that the accused products don't, quote, work with wireless devices, unquote, because the Nokia products do not, quote, know which devices generated the data, unquote.

[00:21:18] Speaker 01:
That's at page 3616 of the appendix.

[00:21:22] Speaker 01:
So that's the best record evidence of how the Nokia products work, and we don't track location on a per device, on a wireless device basis.

[00:21:33] Speaker 05:
So that is- Well, Mr. Hamster, one of your friend's responses to your argument, I think, is that if a single phone is in a grid, then the average location will correspond to that one device.

[00:21:47] Speaker 05:
That seems like a stretch to me, but I wondered if you wanted to comment.

[00:21:52] Speaker 01:
Sure.

[00:21:53] Speaker 01:
I agree that it's a stretch.

[00:21:55] Speaker 01:
There will be a measurement for that sector that hypothetically, putatively, I don't think he has presented sufficient evidence to defeat some of the judgment that this is something that has actually occurred.

[00:22:09] Speaker 01:
But there would be a measurement that's an average of one device, but there's still no knowledge of which device that it was that generated that average measurement over that cell.

[00:22:24] Speaker 01:
So in that sense, the Nokia Q's products still do not know the location of any particular device.

[00:22:31] Speaker 04:
Counsel, can I ask you, did the magistrate judge recommend

[00:22:35] Speaker 04:
a finding of non-infringement on alternate grounds.

[00:22:38] Speaker 04:
I read two different grounds for which the magistrate judge found no infringement, but really only one seems to have been the subject of objections to the district court.

[00:22:53] Speaker 01:
That is our position, Your Honor, that Traxel did not object to the first ground that I just referenced here.

[00:23:01] Speaker 01:
They argue otherwise, and Your Honors can obviously make your determination on the papers.

[00:23:09] Speaker 01:
But yeah, we do not believe that that ground was raised in their objections.

[00:23:18] Speaker 01:
The second location argument, an independent one, is that

[00:23:24] Speaker 01:
What TRACSEL is pointing to for its Inference and Analysis is, as admitted by their own expert, nearly a position in a grid pattern.

[00:23:32] Speaker 01:
And there are many, many citations to their expert's testimony at pages 63 through 67 or 68 of his deposition transcript.

[00:23:44] Speaker 01:
And I submit that it's pretty clear that the TRACSEL's expert was identifying the Nokia locations, which are

[00:23:53] Speaker 01:
at best sector or cell level locations as a position in a grid pattern.

[00:23:59] Speaker 01:
And here's what he said at page 68, which appears on page 3119 of the appendix.

[00:24:06] Speaker 01:
He was asked, if the map were divided into cells covered by individual base stations, isn't each cell a grid in the grid pattern?

[00:24:14] Speaker 01:
And their expert responded, well, I mean, you can say if you make your geographic divisions in that way, you could identify each cell as a grid and a pattern of grids that covers a certain geographic area with cells, right?

[00:24:26] Speaker 01:
I mean, sure.

[00:24:28] Speaker 01:
So he was clearly adopting that position.

[00:24:30] Speaker 01:
And the reason why he was doing that wasn't because he was making some nuanced argument that, well, there's a sector in a particular cell or anything like tracts will characterize it.

[00:24:44] Speaker 01:
He came to that conclusion because he was interpreting the claims instruction as, in fact, broadening the definition of location outside grid patterns.

[00:24:57] Speaker 01:
And that's probably most plainly stated at, again, Appendix 3119.

[00:25:01] Speaker 01:
page 66, lines 9 through 15 of his deposition, where he said, and so the word says is not merely.

[00:25:09] Speaker 01:
In other words, it's not exclusively a position in the grid.

[00:25:12] Speaker 01:
It could be a position that has nothing to do with any grids.

[00:25:17] Speaker 04:
That's my- Can I, speaking of this appendix that you're citing us to, I mean, there's so much stuff in here that is marked confidential.

[00:25:26] Speaker 04:
I mean, how are we supposed to issue a decision

[00:25:29] Speaker 04:
in part perhaps based on what you just referenced if we're not allowed to reference it.

[00:25:38] Speaker 01:
Your Honor, I think I can say on behalf of Nokia that in terms of our CBI, anything discussed in the briefs and in the portions of the deposition cited by the briefs is fair play for your Honor's opinion.

[00:25:56] Speaker 04:
Okay, so that's

[00:25:58] Speaker 04:
That pretty much allows us to ignore almost all these designations, right?

[00:26:02] Speaker 06:
Correct.

[00:26:04] Speaker 04:
Okay.

[00:26:05] Speaker 05:
And, you know, I will just say for the record, Mr. Hamstra, Mr. Rainey, I mean, it's, I appreciate that you're removing the DEGA designations at this point, but that's not the way to go in our court's view generally, just because

[00:26:20] Speaker 05:
We care about public notice of stuff that really shouldn't be marked confidential and the briefs that have been made available to the public do not include those designations.

[00:26:30] Speaker 05:
So for future use, I hope you'll bear that in mind.

[00:26:36] Speaker 01:
Thank you, Your Honor.

[00:26:42] Speaker 01:
And Your Honor, unless the panel or Your Honors, unless the panel has further questions, that's all I wanted to touch on.

[00:26:51] Speaker 05:
Thank you.

[00:26:52] Speaker 05:
Mr. Ramey?

[00:26:57] Speaker 02:
Yes, Your Honor.

[00:26:58] Speaker 02:
Thank you very much.

[00:26:59] Speaker 02:
I wanted to briefly go back and address the point of Martin v. Thomas that he said those were presidential opinions from the Fifth Circuit on waiver.

[00:27:10] Speaker 02:
The Martin case, for one, had to do with a qualified immunity

[00:27:14] Speaker 02:
decision and an issue of law, that there were no objections ever filed.

[00:27:21] Speaker 02:
So it's a very different set of facts.

[00:27:23] Speaker 02:
Our contention is, or Trexel's contention is, that we did file objections.

[00:27:29] Speaker 02:
We made the same argument all along the way to the court.

[00:27:32] Speaker 02:
So it wasn't the first chance the court saw the issue we were raising.

[00:27:36] Speaker 02:
It's not the first chance that the issue has been presented to the district court for review.

[00:27:42] Speaker 02:
We made these arguments the same arguments and facts.

[00:27:44] Speaker 02:
It's better, we hope, as we progress further down the case, but the same exact arguments to the court so that it wouldn't result in a waiver.

[00:27:53] Speaker 02:
And I just take the court back, if I could, to the Peralus or Casillas case that...

[00:28:00] Speaker 02:
Pardon me.

[00:28:01] Speaker 02:
May I finish my final thought?

[00:28:02] Speaker 05:
Yes, please do.

[00:28:03] Speaker 02:
Yes.

[00:28:04] Speaker 02:
The parole, thank you very much, Your Honor.

[00:28:05] Speaker 02:
The Casillas case clearly says that when objections are filed, even if they're untimely, they will be considered in the Fifth Circuit.

[00:28:12] Speaker 02:
Thank you very much, Your Honor.

[00:28:14] Speaker 05:
Well, Mr. Raby, before you sit down, I just had one question.

[00:28:17] Speaker 05:
You were still looking in gray for something about the indefiniteness argument.

[00:28:23] Speaker 05:
I assume you have not found it.

[00:28:25] Speaker 02:
Your Honor, I apologize to the court.

[00:28:27] Speaker 02:
I misstated.

[00:28:29] Speaker 02:
I was confusing my appeals.

[00:28:31] Speaker 02:
We did not make that argument.

[00:28:33] Speaker 05:
Thank you.

[00:28:33] Speaker 05:
We thank both sides, and the case is submitted.