[00:00:00] Speaker 03:
21, 1552, Filler against United States.

[00:00:05] Speaker 03:
Mr. Filler.

[00:00:07] Speaker 01:
Good morning, Your Honors, and thank you for the time, if it may please the Court.

[00:00:13] Speaker 01:
So we have three entities to sort out.

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Here, the Washington Research Foundation, which is a private entity that provided a license to other entities, NeuroGraphics,

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and then also NeuroGraphics sole proprietorship, which is really myself, Aaron Fielder.

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So in this ruling, collateral estoppel is applied to challenge standing, saying that in NeuroGraphics 1 in 2012, in which NeuroGraphics was, the corporation was a plaintiff, was found not to have standing, and collateral estoppel is being applied to conduct that

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a standing problem into the new case, NeuroGraphics 2.

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And separately, we have a challenge to do with subject matter jurisdiction so that, in a sense, the argument is that even if standing is fixed, the Assignment of Claims Act bars subject matter jurisdiction because

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The federal claims that arose against the United States in this patent litigation were according to the government held by WRF and according to NeuroGraphics, these claims are held by NeuroGraphics.

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There's sort of an issue of first impression when we have a patent license situation where

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the granting entity is alleged to hold the right to sue and the practicing entity has the right to exclude.

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Which of these two, the one with the right to sue, the right to exclude, acquires the federal claim, which would otherwise, which may not be assigned under the ACA.

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So since it's, we argue that it's very clear from the license agreements

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that NeuroGraphics was given an unfettered right to exclude and therefore the federal claims at issue were held by NeuroGraphics.

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The position of the government here which the court has adopted is that because WRF held the right to sue that it held the federal claims and

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they were never conducted to NeuroGraphics by the license.

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And so when NeuroGraphics arrives in court, it has no claims to assert and there's no subject matter jurisdiction.

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So we get guidance both from general patent law and also from Court of Federal Claims 1498 takings cases

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that when you have this situation of just a right to sue held by an entity, and this goes back to Crown Dye and Tool, which was a Supreme Court case in 1923, most recently revisited by John Wiley and Sons versus DRK, Second Circuit 2018,

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that a party with an isolated right to sue has no standing.

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They have to be joined with the party with the right to exclude because the actual harm suffered is by the party with the right to exclude.

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And if that's the case, if the party with the right to exclude holds the claim, then the question is, and if that's NeuroGraphics, how do we get NeuroGraphics the right to sue?

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These patent ownerships, which originally came from, were the adventurers assigned to various universities.

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And the University of Washington ultimately held most of the rights through the life of the patent.

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And then December 27, 2013, just after the patent had expired, the patent expired October 1, 2013.

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The parties all did a round robin assignment delivering

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all rights to me personally, Aaron Filler, NeuroGraphics, sole proprietorship.

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And I am the original plaintiff in this case.

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So I arrive with all rights.

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And we did this transfer because of a co-pending complex MDL patent litigation in U.S.

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District Court in the District of Massachusetts.

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And by sweeping up all the rights into myself and having me join as a plaintiff in the MDL,

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in U.S.

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District Court, it solved all challenges to standing and that case went forward.

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When it descended to that case, the brain lab component came before this court two years ago or so.

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But in the Court of Federal Claims, when we reopened, the argument made by the government is, well, Filler has arrived and he has got standing now

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But the claims are still stuck back there in WRF, Washington Research Foundation.

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This is Judge Rand.

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But didn't the court find that you held certain exclusionary rights and interests, but you didn't have all substantial rights?

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And for that reason, you needed to bring WRF into the litigation.

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Our case law is pretty clear on this.

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And I'm referring to the Armaro case versus Microsoft.

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Well, at the time that... Your problem seems to me to be that you need to have WRF with you in order to have standing.

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Well, currently I have complete ownership.

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So at the time this case was filed, I have complete ownership.

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WRF has no ownership at all.

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I have a full

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ownership assignment.

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It came from the University of Washington.

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We're talking about substantial rights to the patent.

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Yes.

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Yeah, I own the patent completely.

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Well, but I guess what you're trying to tell me is that WRF has no substantial rights to the patent.

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That's right.

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Anymore.

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What's being asserted is that it's still holding the federal claims

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and that the federal claims were left behind at WRF because it couldn't assign them due to the ACA.

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And we're saying, well, actually, it never accrued any of them because it never had any right to exclude.

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The right to exclude was long since delivered to NeuroGraphics, which joined into this case.

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So I come in as the owner with all rights

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except those that I've licensed to NeuroGraphics.

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And then NeuroGraphics arrives and we argue that because it had the right to exclude all the way back to December, at least December 29, 1998, all the way through this was always NeuroGraphics, that the federal infringement caused injury to the exclusive licensee, which is NeuroGraphics.

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Although the court has held that NeuroGraphics could not actually file the suit without joining WRF, which we had disputed, the fact is that I say that I came into this case when it was filed in January of 2019 carrying all necessary standing on the date the case was filed because I'm the complete owner of the patent.

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individual rights in WRF.

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But we also say that the federal claims, which perhaps cannot be assigned.

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What rights does WRF have in the patent?

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At the time of filing?

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At the time of filing, they had no rights because the patent was expired.

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They had no rights at all.

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They had up till the time of expiration, they had a royalty right only.

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So with that, we don't see that collateral estoppel, which is often at the center of the rulings here, really has much of an effect.

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What about during the time period that this case actually is concerned with, January 2012 and October 2012?

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During that time period, what rights did WRF have in the past?

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So they had, well it's been found that they had a right to, they failed to transfer the right to sue.

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That is that they said they were, that they gave all rights for individuals, corporations, businesses, partnerships, and other entities.

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And the court found that by saying corporations, it excluded the United States.

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We argue that that is against

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Maurice, the U.S., the old John Marshall case from the early 1800s saying the United States is a corporation.

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I'm asking about the time period that's at issue here.

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Do you think the time period WRF had maintained the right to sue the government?

[00:10:15] Speaker 02:
Well, we also point out that... I'm asking you a question, counselor.

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At that point in time, am I correct that WRF has a right to sue the government?

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We say, we point out that after October 1, 2012, it did not, that that right resided with NeuroGraphics SP because the WRF to NeuroGraphics license was an encumbrance on top of the original license.

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So we went from WRF to NeuroGraphics SP December 798, from NeuroGraphics SP to NeuroGraphics December 2198, and then we added an encumbrance to WRF

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which would last until such time as the last reversion right closed.

[00:11:01] Speaker 01:
The last reversion right closed 12 months before the patent expired because they would have to give 12 months notice to activate a reversion and they were fully paid off for all of their expenditures so that NeuroGraphics SP was the owner and with the right to sue starting in

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as of October 1, 2012 through the expiration one year later, October 1, 2013.

[00:11:30] Speaker 01:
All right.

[00:11:34] Speaker 03:
Let's hear from the government.

[00:11:37] Speaker 03:
We'll save your rebuttal time, Mr. Filler.

[00:11:40] Speaker 03:
Thank you.

[00:11:41] Speaker 03:
Mr. Hoskin.

[00:11:43] Speaker 00:
Thank you, Your Honor.

[00:11:44] Speaker 00:
Gary Hoskin on behalf of the United States.

[00:11:48] Speaker 00:
First thing I would like to do is clarify that

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The court's dismissal in this case was based on lack of subject matter jurisdiction in light of the Anti-Assignment Act, not on standing.

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So the standing issue is actually subsidiary and it only comes into effect if the court's ruling on the Anti-Assignment Act is upheld.

[00:12:15] Speaker 03:
So you're not relying on any aspect of, let's say, the statute of limitations?

[00:12:22] Speaker 00:
What we are, particularly section 2501 limits the recovery period as well.

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What we have here is a period, the suit was filed, the present suit was filed in 2019.

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As a result, the patent expired on October 1st, 2013.

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So there is a period from January 31st

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2013 to October 1, 2013, eight months, that is the subject of this litigation.

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After that patent expired, plaintiffs, NeuroGraphics and WRF entered in an assignment agreement whereby the

[00:13:20] Speaker 03:
Okay, before we get to the anti-assignment, just to complete the thought that I was trying to raise, you're not then arguing that this claim arose earlier than six years before the filing.

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That is, you're not saying that if the Anti-Assignment Act does not

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come out on your side, you're not saying there's any other basis for rejecting entitlement for that six months or so of asserted infringement?

[00:13:55] Speaker 00:
Well, Your Honor, I think you are correct in the sense that we have alleged or we have asserted that Section 2501 is an absolute limitation on the recovery period.

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And that bars any recovery prior to January 31st of 2013.

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So that creates the beginning of the eight-month period.

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The expiration of the patent is the end of this period.

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Now, during that period, we agree that if one of the neurographic entities

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did have a claim and it wasn't barred by the Anti-Assignment Act, then there would be at least standing for purposes of going forward under the present motion.

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Now, that's not to say that we might not have other defenses.

[00:15:03] Speaker 03:
We're talking about... Right, so you're conceding that they would have standing for that...

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to collect royalties for that six-month period between six years before filing and the expiration of the patent?

[00:15:22] Speaker 00:
Well, not exactly, Your Honor.

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My point here is that we have a number of defenses.

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What I have said is that the collateral estoppel issue, which is the secondary issue, only becomes

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issue at all if plaintiff can get past the assignment of claim facts.

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Dr. Filler did not address the assignment of claim facts at all.

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So, we're kind of already in the collateral estoppel and the standing issue.

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Now, there is a point at which if plaintiff is correct on all of this,

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that they could have standing.

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But the court below has already found that they are collaterally stopped from alleging that here.

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And that's where I think it gets confusing is the primary issue here is really the assignment of claims act, not the collateral estoppel.

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Once you have to get past the Assignment of Claims Act before the court even has to look at the estoppel issue and the standing issue.

[00:16:47] Speaker 03:
Well, let's continue these few minutes that you have.

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Assignment of Claims Act is in some ways quite mysterious because we have

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claims filed, patent claims filed against the United States all the time in the Court of Federal Acclaims and here without anyone raising the issue of the Assignment of Claims Act because of internal relationships among plaintiffs as ownership moves about.

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So let's talk about the other issues if we may.

[00:17:29] Speaker 00:
I will, Your Honor, but I think it's important that the Court understands that the reason that there's an Anti-Assignment Act issue is because it was WRF, an unrelated entity, who assigned the claim on December 29, 2013, two months after the patent expired, and it's that assignment that bars the plaintiff here.

[00:17:59] Speaker 00:
Going on then, as the court has asked, this is really an issue as Judge Raina addressed that the court has addressed previously in morrow.

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And I direct the court, particularly to pages 42 to 43 of our red brief,

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What we have here is WRF, during the life of the patent, held the right to enforce the patent against the United States.

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That was the result of NeuroGraphics I. The plaintiff had, effectively, most other rights.

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But the one that plaintiffs lacked

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during the entirety of the life of the patent was the right to enforce against the United States.

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And that was, as I said, the subject of the collateral estoppel issue and it is the, it is certainly the NeuroGraphics I decision in its whole.

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So what is the government's position as to when this claim arose?

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if it's not barred.

[00:19:33] Speaker 00:
Well, the problem of when it erodes, plaintiffs claim that they can go back as far as like I think 1998.

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But we contend that the farthest they can go back at all is January 31st of

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2013, and that's because 2501 bars anything earlier than that.

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The problem here, Your Honor, again, is that there is a complete

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The NeuroGraphics entities had a very easy way to correct the problem during the life of the patent.

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And after NeuroGraphics won, all they had to do is join WRF, and they would have had jurisdiction.

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They joined WRF in the Siemens litigation.

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They joined WRF against UCLA and GE.

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When it came to suing the government,

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WRF never joined.

[00:21:01] Speaker 00:
It didn't join in NeuroGraphics 1.

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And shortly after NeuroGraphics 1, it transferred all remaining rights to NeuroGraphics through the assignment.

[00:21:15] Speaker 03:
Well, if it transferred all remaining rights, why did they have to be joined?

[00:21:21] Speaker 00:
Well, prior to the 2013 assignment,

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They had to be joined because WRF has a right.

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That wasn't my question.

[00:21:33] Speaker 03:
My question is, why did they have to be joined after they transferred all remaining rights?

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After they transferred all rights, it is the government's contention that they can't be joined.

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But NeuroGraphics is barred.

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by the Anti-Assignment Act from asserting the assignment against the United States.

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Did that answer the court's question?

[00:22:18] Speaker 00:
No.

[00:22:20] Speaker 03:
Oh.

[00:22:21] Speaker 03:
No, if you're relying on the Anti-Assignment Act,

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as to why they have to be drawn in, I really feel that that's an incomplete resolution.

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Either they're a party, a necessary party, or they're not.

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Whether or not the case is barred for some other reason, we still need to know whether they're a necessary party after they've parted with all rights, all ownership rights.

[00:22:55] Speaker 00:
And the answer, Your Honor, and the government has held this throughout the litigation, is that prior to the December 29, 2013, assignment, WRF was a necessary party in any litigation against the government.

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After the assignment in 2013, then WRF was not only

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not necessary, it couldn't be a party at all.

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It had no interest.

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But by December 29, 2013, the patent was already expired.

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So all we were talking about is a claim for past infringement.

[00:23:45] Speaker 03:
Has anyone quantified the possible liability?

[00:23:49] Speaker 03:
I don't recall anything saying that this is or isn't being practiced on behalf of the government.

[00:23:58] Speaker 03:
It's under Bidell, right?

[00:24:01] Speaker 00:
Well, no.

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The plaintiff can only sue the United States for its direct infringement.

[00:24:14] Speaker 00:
extremely difficult to try and quantify that in part because, you know, we are now eight years after the patent expired, eight years after the end of the period, and the litigation was filed six years after, or almost six years after the patent expired.

[00:24:38] Speaker 00:
Now, and you're talking about a use of MRI equipment that can have multiple uses.

[00:24:44] Speaker 00:
So, and on top of all of that, many of the manufacturers have already entered license agreements with NeuroGraphics.

[00:24:56] Speaker 00:
So, you know, I think the answer to your question is, you know, we don't have a quantification, but remember also that it's only an eight-month period.

[00:25:07] Speaker 00:
So, it's not going to be very extensive.

[00:25:13] Speaker 03:
Okay, any more questions for Mr. Hoskin?

[00:25:18] Speaker 01:
Not from Judge Waller.

[00:25:22] Speaker 03:
Okay, I hear... Do I hear silence from Judge Rainer?

[00:25:27] Speaker 03:
I guess so.

[00:25:28] Speaker 03:
All right, Mr. Filler, you have your rebuttal time.

[00:25:32] Speaker 01:
Yes, thanks.

[00:25:33] Speaker 01:
Thanks very much, Your Honor.

[00:25:35] Speaker 01:
So, just the most immediate thing we're speaking of, it's very well-quantified because, and it's in extensive use, the United States government has spent billions in inducing the use of it and practicing the patent because there are now 23,000 peer-reviewed publications that use this method, the Brain VTI.

[00:25:54] Speaker 01:
It's been revolutionary.

[00:25:56] Speaker 03:
But you're talking about very close to six years ago.

[00:26:02] Speaker 01:
Yes, well the use continues but we also have details because I've included as an exhibit in the claim a detailed listing of every grant issued by the United States for the practice of UTI both by government entities and non-governmental grantees under contract and the exact amounts and the dates at which each grant was offered.

[00:26:22] Speaker 01:
So there's a very precise accounting and it's large.

[00:26:25] Speaker 01:
That is why eight months is quite significant.

[00:26:29] Speaker 01:
But leaving that, you know,

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aside, which I think is obviously a later issue, but I think quite strong, is that WRF did not have the right to enforce.

[00:26:46] Speaker 01:
What this is about is that the grant of the patent, and this is in the appendix, the grant is Article II at 05780.

[00:27:01] Speaker 01:
And it grants exclusive use to make use cell in the territory.

[00:27:09] Speaker 01:
So there's unrestricted.

[00:27:11] Speaker 01:
However, further down in the agreement at 05785 and it's paragraph 7.2, it says that NeuroGraphics has the right to sue any infringer

[00:27:32] Speaker 01:
but it uses the term third party.

[00:27:35] Speaker 01:
The definition of third party has the rest where the word corporation appears and government does not clearly appear.

[00:27:43] Speaker 01:
The by dole issue is there is no by dole right.

[00:27:47] Speaker 01:
The United States, I applied for grants, they refused to fund it, not to sort of compare to Galileo, but they were saying

[00:27:56] Speaker 01:
This is just a method.

[00:27:57] Speaker 01:
This is like a telescope.

[00:27:58] Speaker 01:
It's just a method.

[00:27:59] Speaker 01:
It's not a strong astronomical science.

[00:28:01] Speaker 01:
And here we said, this is a method to see tracks in the brain, but it's not science.

[00:28:05] Speaker 01:
So it didn't fund it.

[00:28:06] Speaker 01:
It was funded in the UK, um, and by neurosurgeons in the UK.

[00:28:11] Speaker 01:
Um, so we've not, no us funding.

[00:28:13] Speaker 01:
So there is no biode, bi-dole rights.

[00:28:15] Speaker 01:
The role of bi-dole in this case is that the court pointed to the presence of a bi-dole clause in the agreement.

[00:28:24] Speaker 01:
to say there must have been government rights assigned, otherwise why would we state that they might be limited by Bayh-Dol?

[00:28:34] Speaker 01:
But in fact, there were no actual Bayh-Dol lock-in rights.

[00:28:39] Speaker 01:
So the issue again is because the only thing alleged to be retained by WRF

[00:28:48] Speaker 01:
is the right to sue for infringement based on the word third party in clause 7.2, that that would not give them the federal claim if the right to exclude was entirely in the hands of NeuroGraphics.

[00:29:03] Speaker 01:
So we would have had to join them were they to want to sue because they had no right to exclude or to practice.

[00:29:11] Speaker 01:
So the only other point I wanted to pull in was a reference

[00:29:17] Speaker 01:
to why I said there's a one-year period when the WRF right to sue was gone as well.

[00:29:28] Speaker 01:
And that's, I think there's a wrong page quote in the pleading, but it's 05787 paragraph 9C.

[00:29:37] Speaker 01:
This is the one full calendar year from the date of notification.

[00:29:40] Speaker 01:
And so basically they have an encumbrance.

[00:29:42] Speaker 01:
They could cause a reversion.

[00:29:44] Speaker 01:
But after that date, they had no reversion, and so we argued that the encumbrances ended and the rights were back in the hands of NeuroGraphics SP, which has an intervening license, primary license, the primary license ahead of WRF, the license to NeuroGraphics.

[00:30:07] Speaker 03:
Okay, thank you.

[00:30:07] Speaker 03:
Any questions for Mr. Filler?

[00:30:11] Speaker 01:
Not from Judge Wolick.

[00:30:13] Speaker ?:
No.

[00:30:14] Speaker 03:
Oh, all right.

[00:30:15] Speaker 03:
Thank you.

[00:30:16] Speaker 03:
Thanks to both.

[00:30:18] Speaker 03:
I was going to say both counsel and to inventor filler.

[00:30:21] Speaker 03:
The case is taken under submission.

[00:30:24] Speaker 01:
Thanks very much.