[00:00:00] Speaker 05:
Next case is Unilock versus Blackboard, 2021, 1795.

[00:00:05] Speaker 05:
Mr. Walker, this, of course, is a separate case with a separate defendant and counsel.

[00:00:16] Speaker 05:
But there's no need to go over everything that's gone over again.

[00:00:22] Speaker 05:
But you're entitled to use your time as you see fit.

[00:00:26] Speaker 03:
Thank you, Your Honor.

[00:00:27] Speaker 03:
May it please the court.

[00:00:28] Speaker 03:
The Delaware District Court in this case dismissed based on its earlier decision in Motorola holding that the patent owner, Unilock, lacked Article III standing because Fortress theoretically could sub-license the patents.

[00:00:40] Speaker 03:
And I'll ask the court's indulgence to just amplify a few of the key points on that standing argument that we want to make sure that the court appreciates.

[00:00:48] Speaker 03:
This court has never held that a patent owner at the time of suit lacked Article III standing to sue.

[00:00:55] Speaker 03:
There is not a single case that holds that.

[00:00:58] Speaker 03:
Instead, it's held in case after case after case that ownership of a patent gives the owner, the patentee, Article III standing to sue for infringement of the patent.

[00:01:09] Speaker 03:
That's aspects, Schwendman, hand-draw, man, intellectual property, omni, and tenesis, to name a few examples.

[00:01:17] Speaker 03:
In particular, aspects, I think, is the clearest example of this.

[00:01:22] Speaker 03:
There, the court held that a patent owner had standing and overruled the dismissal of its suit for lack of Article III standing, even though a licensee had a virtually unfettered right to sub-license the patent.

[00:01:36] Speaker 03:
And there's no way to distinguish that case from the fact.

[00:01:39] Speaker 03:
None of the defendants have tried to do that.

[00:01:41] Speaker 00:
Which case is that?

[00:01:42] Speaker 03:
Aspects.

[00:01:43] Speaker 03:
It's 434 at third, and the relevant discussion

[00:01:50] Speaker 03:
is at 337 to 338 as well.

[00:01:54] Speaker 05:
But the key aspect of the aspect case

[00:01:59] Speaker 05:
relate to the question of whether an exclusive license is an assignment, right?

[00:02:05] Speaker 03:
Well, so that was why there was a question as to whether Contour was still the owner of the patent.

[00:02:13] Speaker 03:
The court held a well-reasoned decision that it had not transferred all substantial rights.

[00:02:18] Speaker 03:
Therefore, Contour remained the owner of the patent and therefore retained standing to sue even though

[00:02:26] Speaker 03:
a licensee, Chick or Aspects, had a virtually unfettered right to sub-license the patent.

[00:02:32] Speaker 03:
And the defendant's only response is to say that Aspects was only talking about Section 281, statutory cause of action, and was not speaking to Article 3.

[00:02:41] Speaker 03:
They're essentially saying that the court there overlooked a glaring Article 3 error.

[00:02:46] Speaker 03:
And we just do not think that is plausible.

[00:02:48] Speaker 03:
The court at 434 F 3rd, 1339,

[00:02:55] Speaker 03:
described the district court's dismissal for lack of standing, and it pointed to page 26 of the district court's slip opinion.

[00:03:02] Speaker 03:
And on that page, the district court said three times it was dismissing for lack of constitutional standing, and not for a mere failure to follow statutory requirements.

[00:03:14] Speaker 03:
That is why it held that it could not be fixed by adding another party.

[00:03:18] Speaker 03:
Aspects was addressing Article 3 standing, and it held the pat owner

[00:03:23] Speaker 03:
had Article III standing.

[00:03:24] Speaker 05:
But it held that the agreement was a license, not an assignment.

[00:03:30] Speaker 05:
Yes.

[00:03:30] Speaker 05:
It didn't deal with the loss of right to sue by the grant of a non-exclusive license, which is our case.

[00:03:38] Speaker 03:
I think it made very clear, I think I said twice, that it emphasized that the license, which was held not to be an assignment, gave the licensee a virtually unfettered right to sublicense.

[00:03:51] Speaker 03:
And it nonetheless held

[00:03:53] Speaker 03:
that Contor was the owner and that it had standing to sue.

[00:03:56] Speaker 03:
And the fact that there was that unfettered right to sublicense had been the basis for the district court finding that there was a lack of Article III standing.

[00:04:04] Speaker 03:
And that makes sense because, as Mr. Lankin said, and I won't belabor here, Section 154 gives the owner of the patent the right to exclude others from practicing the invention.

[00:04:15] Speaker 03:
And it doesn't disappear.

[00:04:16] Speaker 03:
That right doesn't disappear in the injury that comes when

[00:04:19] Speaker 03:
unauthorized infringers invade that right, just because someone else theoretically could but never does sub-license the patent.

[00:04:26] Speaker 03:
I don't lose the right to exclude burglars from my home just because I've told my son that he can invite over anyone he wants.

[00:04:34] Speaker 03:
And that's just the nature of the right to exclude.

[00:04:36] Speaker 03:
So long as you remain the patent owner, you have that right to exclude.

[00:04:40] Speaker 03:
And I think Pandrol said it really clearly, that establishing ownership of a patent that has been infringed satisfies the requirements of Article 3 standing.

[00:04:48] Speaker 03:
And that's the rule that should govern in these cases.

[00:04:51] Speaker 03:
The contrary decisions of the district courts, Google and Motorola in here, should be reversed.

[00:04:58] Speaker 03:
And if there is a reversal in Motorola, there also has to be a reversal here, because the decision here was simply based on Judge Connolly applying his decision in Motorola to the essentially equivalent facts in this case.

[00:05:12] Speaker 02:
There's no statement here that the

[00:05:15] Speaker 02:
of the non-binding nature of the Apple case, right?

[00:05:20] Speaker 03:
So that is true.

[00:05:21] Speaker 03:
So we do not have an argument that Blackboard waived a preclusion argument.

[00:05:26] Speaker 03:
But they did forfeit the argument.

[00:05:28] Speaker 03:
They had the opportunity to argue that Apple was preclusive before the district court.

[00:05:33] Speaker 03:
There was 48 days between the time Apple was decided and when the district court asked for briefing on the question of subject matter jurisdiction.

[00:05:40] Speaker 03:
It was a few days later that they submitted their response, did not argue that Apple was preclusive.

[00:05:47] Speaker 03:
District court ruled.

[00:05:48] Speaker 03:
And it was not until they're the first time on appeal that they now argue that Apple should now be the case that is preclusive in this situation.

[00:05:57] Speaker 03:
And they had every opportunity.

[00:05:58] Speaker 03:
They do not argue they were unaware.

[00:05:59] Speaker 00:
Is grouping on subject matter jurisdiction you referred to, is that the same supplemental

[00:06:04] Speaker 00:
briefing we were talking about with Mr. Lamkin.

[00:06:07] Speaker 03:
It's not the same, because there are different cases.

[00:06:10] Speaker 03:
The subpoena working in Motorola did also address subject matter jurisdiction.

[00:06:15] Speaker 03:
But here, it was the court said address where the court has subject matter jurisdiction, see the Motorola decision.

[00:06:21] Speaker 03:
So it was flagging that that was what it was inquiring about, whether

[00:06:25] Speaker 03:
Fortress's punitive right to sublicense would defeat Article 3 standing.

[00:06:30] Speaker 03:
And the Motorola decision cited Apple a couple of times.

[00:06:34] Speaker 03:
And they haven't argued that they were unaware of Apple in some way, or that anything prevented them from doing it.

[00:06:39] Speaker 00:
So you're not arguing that forfeiture or waiver should apply more strongly to your case?

[00:06:44] Speaker 00:
It kind of rises and falls with the other one.

[00:06:48] Speaker 03:
I think that's essentially true.

[00:06:49] Speaker 03:
And because it appears that the district court here may well have just applied Motorola as a matter of issue of preclusion, if you affirm in Motorola, that judgment would still stand.

[00:07:00] Speaker 03:
But if there is a waiver in Motorola, and we think there is, and there's certainly at least a forfeiture that warrants reaching the article.

[00:07:07] Speaker 02:
Well, except that we're in the Third Circuit here.

[00:07:09] Speaker 02:
And the Third Circuit, in that five case, seems to say, no, there's not a forfeit.

[00:07:15] Speaker 03:
Well, so Nowhere says it's not a forfeiture.

[00:07:19] Speaker 03:
And I think the best way of looking at it, as Mr. Lankin said, is finding exceptional circumstances that weren't going beyond the usual rule that a court will affirm on alternative grounds only if they were properly preserved before the district court.

[00:07:32] Speaker 01:
That's the whole point.

[00:07:34] Speaker 01:
Where does that third subject case say they're acceptable?

[00:07:39] Speaker 03:
So if 5-1 labeled boxes itself does not say there are exceptional circumstances, but that is 3rd Circuit law.

[00:07:48] Speaker 03:
The Simcoe case is cited in a reply brief.

[00:07:50] Speaker 02:
It's not 3rd Circuit law in this context.

[00:07:53] Speaker 02:
5-1 labeled boxes is dealing with the specific same issue that we have here.

[00:07:58] Speaker 02:
That is waiting to raise collateral stopping towards finality.

[00:08:02] Speaker 02:
And the 3rd Circuit says that's fine.

[00:08:04] Speaker 03:
Well, so I don't think it went that far.

[00:08:06] Speaker 03:
So it's cited right in Miller that says, there can be difficulties when different cases are wending to judgment at different times.

[00:08:15] Speaker 03:
It's not even clear that that is true here, because these cases

[00:08:17] Speaker 03:
The fact that they're consolidated for companion cases before this court makes clear that they were on very similar tracks.

[00:08:24] Speaker 03:
But even apart from that, it was talking about difficulties that can arise if you give a preclusion to a judgment that could be reversed.

[00:08:32] Speaker 02:
The government, I think it was, waited until finality to raise the issue.

[00:08:37] Speaker 02:
And the Third Circuit said, fine.

[00:08:39] Speaker 03:
In those circumstances, and I think it's important, and these are all things that the court mentioned in its opinion, that they were dealing with mutual estoppel.

[00:08:49] Speaker 03:
The cases also arose in two different circuits.

[00:08:52] Speaker 03:
So if you had conflicting judgments, there'd be no way to reconcile them absent applying preclusion or, quote, in force at Supreme Court review.

[00:09:00] Speaker 03:
And so in that situation, that may well warrant allowing the government to be insane.

[00:09:05] Speaker 02:
Well, that's your argument.

[00:09:06] Speaker 02:
It's not their argument.

[00:09:07] Speaker 02:
It's true.

[00:09:07] Speaker 03:
So the specific thing that five un-labeled bots is referred to is the problems that could arise if you give preclusive effect to a judgment that is subject to reversal on appeal.

[00:09:17] Speaker 03:
But that concern is, I think, not applicable here for two reasons.

[00:09:22] Speaker 03:
One, the problem is vastly diminished when every case is going to come up to the same court on appeal.

[00:09:28] Speaker 03:
You don't have to start over in blackboard if you've given

[00:09:32] Speaker 03:
Apple collateral estable effect, and Apple is later reversed, because they're all going to come up to this court, and this court can just reinstate the cases to find that there is Article III standing present.

[00:09:43] Speaker 03:
And secondly, Blackboard in particular cannot plausibly

[00:09:49] Speaker 03:
raised the concern that it shouldn't have had to raise Apple because it was subject to reversal on appeal, because here it insisted on a judgment based on the preclusive effect of a decision, Motorola, that was still subject to appeal.

[00:10:04] Speaker 03:
In fact, they did it earlier in the case as well on an invalidity issue.

[00:10:08] Speaker 03:
We asked the district court to stay this case until Motorola was decided on appeal so that it wouldn't burden the court, so that we wouldn't have to come up and potentially come back down upon a reversal in Motorola.

[00:10:23] Speaker 03:
And Blackboard refused.

[00:10:24] Speaker 03:
That's appendix 190.

[00:10:25] Speaker 02:
This is all very interesting.

[00:10:27] Speaker 02:
It has nothing to do with the reasoning of five unlabeled boxes.

[00:10:31] Speaker 02:
Well, I think it does, because it was concerning.

[00:10:32] Speaker 02:
We put ourselves in a position where we follow regional circuit law.

[00:10:38] Speaker 02:
And I don't see anything in five enabled boxes that suggests that that ruling of lack of forfeiture wouldn't carry over to this case.

[00:10:51] Speaker 03:
Well, I think that ruling was based on potential practical problems that could happen if you apply preclusion based on an opinion still subject to appeal.

[00:11:02] Speaker 03:
But here, Blackboard clearly was willing to accept that risk because it insisted

[00:11:07] Speaker 03:
on getting a judgment based on the preclusive effect of the Motorola judgment on appeal.

[00:11:11] Speaker 03:
And so that, I think, is a very different situation.

[00:11:13] Speaker 03:
Also, they raised Wright and Miller in support of the argument that that could be a problem in that situation.

[00:11:19] Speaker 03:
Wright and Miller also says, and this was not something that was at issue in five unlabeled boxes, that when you have a settlement, and that is the reason why something is not tested on appeal,

[00:11:29] Speaker 03:
That court should feel free in that circumstance to deny a preclusion.

[00:11:33] Speaker 03:
That's section 4465.1 of Wright and Miller.

[00:11:37] Speaker 03:
And we know the Third Circuit is willing to look to Wright and Miller.

[00:11:40] Speaker 03:
There's no reason to think that that situation, when there is a settlement and it hasn't been raised in the district court timely, that in that situation, the Third Circuit would decline to apply a preclusion.

[00:11:51] Speaker 03:
I'm sorry, but we're about to move on to further questions.

[00:11:54] Speaker 05:
We will hold the rebuttal time for you.

[00:11:57] Speaker 03:
Thank you.

[00:11:59] Speaker 05:
Mr. Hughes, you have a very esteemed name in this court.

[00:12:06] Speaker 04:
Thank you, Your Honor.

[00:12:07] Speaker 04:
Thank you.

[00:12:08] Speaker 04:
And may it please the court, Paul Hughes, for Blackboard.

[00:12:11] Speaker 04:
If Your Honors will allow, I'd like to start and focus principally on collateral estoppel.

[00:12:18] Speaker 04:
But if there's anywhere else the court would like to direct me, I'm happy to answer any questions the court may have.

[00:12:24] Speaker 04:
But turning immediately to Collateralist Apple, we do believe that five unlabeled boxes does govern the analysis here.

[00:12:32] Speaker 04:
And I'd like just to take a moment for the context of this case and the decision below and why it is that five unlabeled boxes teaching applies with full force here.

[00:12:43] Speaker 04:
So the context of this case is that Uniloc had claims against four different companies.

[00:12:48] Speaker 04:
As the court's aware, the three parties here plus Apple.

[00:12:52] Speaker 04:
And the position of UNOOC in the district court was that the case against Blackboard should be stayed.

[00:12:58] Speaker 04:
They said this at appendix page 184, and again at page 190.

[00:13:03] Speaker 04:
And the reason they asked for it to be stayed was they explained very clearly what was going to happen in this litigation, that appeals of the Google case, the Apple case, and the Motorola case were going to come to this court, and then whatever decision would result.

[00:13:18] Speaker 04:
would be a preclusive effect.

[00:13:21] Speaker 04:
And so there was no purpose in continuing to litigate against Blackboard at that point.

[00:13:26] Speaker 04:
But then, as the court's well aware, after Unilock made those representations, it settled Apple without doing any of the things it admits it could have done.

[00:13:36] Speaker 04:
This is its reply brief in our case at page 24 and 25.

[00:13:40] Speaker 04:
It said it had alternatives.

[00:13:41] Speaker 04:
It could have sought vacater.

[00:13:43] Speaker 04:
It could have continued with the Apple appeal, as they described with the high-low settlement, so still essentially settled the bulk of the case.

[00:13:50] Speaker 04:
But maintain that case, that portion of the standing issue for a judgment here.

[00:13:56] Speaker 04:
Unilock didn't do either of those things.

[00:13:58] Speaker 04:
Instead, it settled and rendered a final judgment.

[00:14:01] Speaker 04:
And that's where five unlabeled boxes comes in.

[00:14:05] Speaker 04:
If the rule were that, as Unilox suggests, within days they seem to suggest that if there's another district court decision, you have to run into your district court and ask for issue preclusion or forfeited if you don't do it, again, within a matter of weeks here is the argument.

[00:14:24] Speaker 04:
That suggests that there's going to be a pinball machine when Unilox got four different cases around the country.

[00:14:29] Speaker 04:
Under their theory, not only should we have been saying that there was issue preclusion from Apple, but also from the Motorola decision and from the Google decision, because we didn't know if any of those cases were going to reach finality before the others.

[00:14:43] Speaker 04:
That's where the wisdom of five unlabeled boxes comes in.

[00:14:46] Speaker 04:
Again, looking to Wright and Miller and says, this is not an unknown situation where you have cases that are progressing.

[00:14:53] Speaker 04:
They're both in the courts at the same time, but they're on slightly different time frames.

[00:14:58] Speaker 04:
Again, that's similar here because the Apple case was ahead of the Blackboard case.

[00:15:01] Speaker 04:
And the Third Circuit, in understanding what is reasonable conduct for a party to assert a preclusion argument, said that it's perfectly reasonable to allow for one case to reach finality before coming to the court and say you're entitled to issue preclusion from that.

[00:15:18] Speaker 04:
Because otherwise, it's subject to a lot of complications of having to go back and unwind everything that's been done.

[00:15:24] Speaker 04:
And again, when we have a web of four cases here, I think those concerns are even more heightened than just in the bilateral context that the Third Circuit was dealing with in five unlabeled boxes.

[00:15:35] Speaker 04:
So measured against that backdrop, I think that the conduct here was completely reasonable, which is ultimately the analysis that UNOOC suggests for the forfeiture analysis.

[00:15:46] Speaker 04:
But there's even more, I think, that goes to the reasonableness of Blackboard's conduct here.

[00:15:51] Speaker 04:
And at appendix page 188,

[00:15:54] Speaker 04:
This is our response.

[00:15:55] Speaker 04:
And let me touch on Judge Hughes' question about the procedural posture here.

[00:15:59] Speaker 04:
This was not in response to a motion that we made.

[00:16:02] Speaker 04:
This was Judge Connolly, in District of Delaware, who had decided the Motorola decision, issued a sua sponte order bringing the party's attention to his recent Motorola decision, asking each party for 750-word letter briefs, asking the question of, do we have standing in view of Motorola?

[00:16:20] Speaker 04:
And what the key question that Judge Connolly made clear, I think, in the subsequent orders he was trying to understand is, is there anything that is factually different about Motorola that would mean that we would have a different result here?

[00:16:31] Speaker 04:
And as Blackboard stated in the letter to the court, again, this is at page 188,

[00:16:37] Speaker 04:
Blackboard simply didn't know all of the particulars underlying the Fortress Agreement because it didn't have discovery.

[00:16:43] Speaker 04:
And it had asked the question of Uniloc's counsel, is there anything different about this case that would mean the other decisions don't control?

[00:16:51] Speaker 04:
And Uniloc hadn't given it an answer.

[00:16:54] Speaker 04:
So the only way that we now know that these other cases, in fact, bind here and raise the same issue is because we've been suggesting and asserting it.

[00:17:02] Speaker 04:
And Uniloc has acquiesced.

[00:17:04] Speaker 04:
They've never suggested that there was a separate issue.

[00:17:07] Speaker 04:
But at the time that this was before the district court, we had asked the question of Unalox Council whether or not there was anything different.

[00:17:14] Speaker 04:
We weren't given a response.

[00:17:16] Speaker 04:
So I think it would be quite difficult to suggest that there's been forfeiture of an argument by not immediately raising it within days before Judge Connolly in response to a Suez-Monte order directing 750 words about the Motorola decision.

[00:17:32] Speaker 04:
when we've been asking you in a lot for the facts to see if there's anything different, and that's not been forthcoming.

[00:17:39] Speaker 04:
But taking it back to the broader legal point, again, this is an issue the Third Circuit has addressed and decided what is reasonable in the context of these particular circumstances.

[00:17:49] Speaker 04:
And as that court holds, it's reasonable to wait for the appeals to conclude.

[00:17:55] Speaker 04:
So you don't, again, have this kind of pinball game of having to go back and forth as the cases wend their way.

[00:18:01] Speaker 04:
This was not unknown to Uniloc.

[00:18:03] Speaker 04:
It repeatedly told the district court here and the other courts that these cases were going to go up together.

[00:18:09] Speaker 04:
They knew that they were going to get a decision in these cases.

[00:18:12] Speaker 04:
And so when they made the decision to settle Apple without having any form of vacater or without continuing that case, that has direct collateral estoppel consequences.

[00:18:26] Speaker 04:
To the court's question, is there anything that we should make of the non-mutual aspect

[00:18:30] Speaker 04:
of collateral estoppel.

[00:18:32] Speaker 04:
We don't think there is.

[00:18:33] Speaker 04:
Ultimately, I think this turns on a fairness inquiry.

[00:18:36] Speaker 04:
One could imagine circumstances which application of non-mutual collateral estoppel could be deemed unfair, particularly if what you're trying to find estoppel on is some trivial issue that was only lightly litigated, wasn't at the forefront, or there would be some other kind of surprise to the party.

[00:18:54] Speaker 04:
And there is some flexibility.

[00:18:56] Speaker 04:
The courts could apply in that context.

[00:18:59] Speaker 04:
But in this case, where Unilock was well aware that it was the exact same issue, it was hotly contested, it was bringing that case to the district court's attention, there's nothing remotely unfair about saying that its decision to settle under that case final has immediate preclusive effects.

[00:19:17] Speaker 04:
So again, the touchstone analysis here is fairness, and I don't think there's any real concern.

[00:19:23] Speaker 04:
Now, the Wright and Miller quote that Mr. Walker points to, I think what's important is when you continue that quote, I think he's citing the quote part of Wright and Miller.

[00:19:33] Speaker 04:
It says, settlement of a prior action pending appeal may defeat preclusion.

[00:19:37] Speaker 04:
That's the point they discussed in our brief.

[00:19:38] Speaker 04:
But this quote continues, and Wright and Miller says, but the Supreme Court has made it more difficult to avoid preclusion by agreeing to have the judgment vacated.

[00:19:47] Speaker 04:
And so this is citing back to US Bancorp, where the Supreme Court has made it more difficult to obtain vacator of a judgment on behalf of a settlement.

[00:19:56] Speaker 04:
And Wright Miller is suggesting, if you don't have that vacator, it's going to have a difficult time arguing that you don't have a preclusive effect.

[00:20:05] Speaker 04:
Now, we cite to the Sixth Circuit's decision in Watermark, which, again, I think is applying a pretty broad federal standard.

[00:20:12] Speaker 04:
It's looking at state law, but it's collecting cases

[00:20:15] Speaker 04:
from around the country, including the Third Circuit's decision in Sentinel.

[00:20:19] Speaker 04:
And I think that court gives a fairly thorough policy treatment of the reasons why you have collateral estoppel in this context of a settlement and no reason not to apply it, because you don't want to incentivize parties who have the first case that might not be going their liking, essentially buying their way out of it and then taking a second bite at the apple.

[00:20:40] Speaker 04:
in some other case, perhaps against a less-resourced defendant or less-resourced party or whatnot.

[00:20:46] Speaker 04:
The Sixth Circuit gives a pretty thorough explanation why all of the policy interests underlying issue preclusion about judicial efficiency and having a single opportunity to fully litigate out issues is completely vindicated if a party in the first case chooses, instead of having it stay in court and carrying that case through to an appeal,

[00:21:08] Speaker 04:
instead settles and renders the lower court's decision final.

[00:21:11] Speaker 04:
Again, there's hardly anything unfair about that.

[00:21:15] Speaker 04:
And if this court concludes that there's nothing unfair about applying issue preclusion, and we think there's really no basis here whatsoever to find forfeiture on these facts, again, Blackboard filed no affirmative motion.

[00:21:32] Speaker 04:
The brief to this court was the first brief that we have filed since the court's Suez-Sponte order, apart from the 750-word letter that Judge Connolly directed to be specifically about standing in Motorola.

[00:21:46] Speaker 04:
I don't think there's any basis on that record to find forfeiture in view of the Third Circuit's decision with filing labeled boxes.

[00:21:53] Speaker 04:
So again, if we set aside forfeiture, if we set aside the fairness objections, Unilot doesn't have any other basis to resist collateral estoppel.

[00:22:02] Speaker 04:
It's brief, I think, concedes that the four classic elements of collateral estoppel are all satisfied in this case.

[00:22:08] Speaker 04:
They don't challenge that in their position here.

[00:22:11] Speaker 04:
So again, if collateral estoppel is not forfeited and if fairness is satisfied, I think that would fully resolve this case and properly resolve the issues before the court.

[00:22:23] Speaker 04:
It can be paused.

[00:22:24] Speaker 04:
Your Honor, I'd be happy to answer any other questions the court may have, or I can rest there.

[00:22:28] Speaker 05:
No one ever loses points if they aren't using up all their time.

[00:22:32] Speaker 04:
Thank you, Your Honor.

[00:22:33] Speaker 05:
Thank you, counsel.

[00:22:35] Speaker 05:
Mr. Walker has some rebuttal time.

[00:22:38] Speaker 03:
Thank you, Your Honors.

[00:22:39] Speaker 03:
There's no question that under this court's decision in pharmacy and the well-established rule that a district court decision has immediate preclusive effect as soon as it's issued allowed them to raise the argument that Apple was preclusive as soon

[00:22:53] Speaker 03:
as that decision was issued, and the district court asked them to address subject matter jurisdiction.

[00:22:58] Speaker 03:
They absolutely could have argued in their response to the court's briefing order that we were precluded by virtue of Apple or by virtue of Motorola, which they also didn't assert,

[00:23:10] Speaker 03:
was preclusive and prevented us from asserting subject matter jurisdiction.

[00:23:13] Speaker 03:
Mr. Hughes said it was only 750 words.

[00:23:16] Speaker 03:
They were allowed to brief.

[00:23:17] Speaker 03:
They only used 419 of the words.

[00:23:19] Speaker 03:
That's almost an entire 28-J letter they left on the table.

[00:23:22] Speaker 03:
And they spent about a third of the letter talking about unrelated sanctions motions that the district court had not asked them to raise.

[00:23:27] Speaker 03:
There's no question they could have raised Apple in that briefing.

[00:23:32] Speaker 03:
And that was a fair and reasonable opportunity.

[00:23:35] Speaker 03:
Mr. Hughes also says that it's reasonable to wait for a case to reach finality.

[00:23:39] Speaker 03:
And maybe in some cases that is.

[00:23:41] Speaker 03:
Five unlabeled boxes was willing to overlook a failure to raise preclusion before a district court.

[00:23:47] Speaker 03:
But the reason it did it was because there could be problems to apply preclusion to a decision still subject to review.

[00:23:56] Speaker 03:
But Blackboard did exactly the opposite with respect to Motorola.

[00:23:59] Speaker 03:
That decision was still subject to appeal before this court.

[00:24:02] Speaker 03:
We just heard argument in it.

[00:24:05] Speaker 03:
But they insisted on getting a judgment based on Motorola, fully aware of the risk of getting preclusion based on a decision that is still subject to appeal.

[00:24:16] Speaker 03:
And we think it's a bit rich for Blackboard to now say, oh, well, that should nonetheless excuse us for not raising preclusion based on Apple, despite having the opportunity to do it.

[00:24:28] Speaker 03:
That, I think, alone is sufficient to distinguish this case from five unlabeled boxes.

[00:24:33] Speaker 03:
as well as the fact that on the merits of preclusion, non-mutual preclusion here, Wright and Miller, which is the authority that five unlabeled boxes itself cited, says that settlement can, if it leads to the foregoing of opportunities to test a judgment, that a court should feel free to deny a preclusive effect.

[00:24:53] Speaker 03:
Yes, it recognizes that the Supreme Court in Bancorp says you shouldn't, as a matter of course, vacate judgments after they settle.

[00:25:01] Speaker 03:
But this court, in the Opera Marine decision,

[00:25:03] Speaker 03:
observe that that doesn't answer the question of whether you should give it collateral estoppel effect in a later case.

[00:25:09] Speaker 03:
That's an equitable decision based on an equitable decision, especially in the non-mutual context.

[00:25:16] Speaker 03:
And here, both the fact that it was never raised below and that there was an intervening settlement that resolved disputes in about 30 different cases when no one had properly preserved a preclusion argument.

[00:25:27] Speaker 03:
I think there are ample reasons

[00:25:29] Speaker 03:
not to apply preclusion based on Apple, and for this court to reach the merits of the standing issue that district courts here relied on.

[00:25:37] Speaker 03:
And one last point I want to make is that if this court reaches the merits of the Article III standing question and says that fortress' punitive right to sublicense does not defeat a patent owner's Article III standing, that holding should apply in all of these cases.

[00:25:56] Speaker 03:
So if Motorola waived

[00:25:58] Speaker 03:
preclusion, as the court should find, then that holding, that merits holding, would apply here.

[00:26:04] Speaker 03:
Because under Herrera versus Wyoming, the Supreme Court's decision, a repudiated decision cannot have collateral estoppel effect.

[00:26:12] Speaker 03:
If this court repudiates the holding of Apple by saying that a sublicense right does not defeat Article III standing, Apple cannot be given collateral estoppel effect for that reason as well.

[00:26:24] Speaker 03:
So in all of these cases, the court should reverse.

[00:26:27] Speaker 03:
Is there further questions?