[00:00:00] Speaker 01:
Our next case is Love and Fear Limited, which is Lorraine, doctor number 22-1905.

[00:00:08] Speaker 01:
And you, Ms.

[00:00:14] Speaker 01:
Chancellor Weiss, is that correct?

[00:00:15] Speaker 02:
Yes, Your Honor.

[00:00:17] Speaker 01:
And Councillor Fischer, let me make sure I have the arguments correct.

[00:00:21] Speaker 01:
You're going to, on the main case, you're going to impress four minutes, you're reserving three, four, three, four.

[00:00:29] Speaker 01:
And Ms.

[00:00:30] Speaker 01:
Fischer has 13 minutes and two minutes she's reserved to be fed on the county claim.

[00:00:36] Speaker 01:
So you'll go for 12 minutes, she goes for 13, you go for three, and she goes for two.

[00:00:47] Speaker 03:
Q. I understand that during my time I left my... I understand that during my time I can't even address my rebuttal to what Ms.

[00:01:08] Speaker 03:
Riesman said and my cross of deal and that my rebuttal is limited to anything she said on her rebuttal.

[00:01:11] Speaker 01:
K. Yes, that's correct.

[00:01:12] Speaker 02:
And Your Honor, I just want to make sure that I understand as well.

[00:01:15] Speaker 02:
I may, in my original 12 minutes, get into some of the issues that she has raised.

[00:01:21] Speaker 01:
If you're not rebuttal, you can only rebut what Councillor Krueger picked addresses in her 13 minutes.

[00:01:32] Speaker 01:
Okay?

[00:01:32] Speaker 01:
Thank you.

[00:01:33] Speaker 01:
You want to spread away?

[00:01:33] Speaker 01:
You may start.

[00:01:34] Speaker 02:
May it please the board here on recent on behalf of Law and Care Limited and Mr. Eddie Patron.

[00:01:40] Speaker 02:
As you might imagine, over the past few weeks, I've read and reread a lot of patent cases.

[00:01:46] Speaker 02:
This case stands out.

[00:01:50] Speaker 02:
This case, we started out with deposition of Ms.

[00:01:53] Speaker 02:
Lorraine, at which she couldn't recall any search for dog bone mass.

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Many years later, after much discovery, we filed a motion for summary judgment.

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We wanted to file a motion for summary judgment early on in the case, but Easy Peasy had vehemently opposed that.

[00:02:10] Speaker 02:
They had insisted that there be a scheduling order with a Northman hearing, full factual discovery, expert reports, and expert depositions before a motion for summary judgment could be filed.

[00:02:23] Speaker 02:
When we filed our motion for summary judgment, after holding up the shield of privilege for years, they then decided that they needed to use a good faith excuse.

[00:02:33] Speaker 00:
And so they... The facts are very, you know, there's a lot of them, but we're familiar with them.

[00:02:40] Speaker 00:
You started out by saying the case stands out.

[00:02:43] Speaker 00:
Perhaps you were trying to reference your 285 motion.

[00:02:48] Speaker 00:
The district court said the case doesn't stand out for exceptional case standards under Section 3.

[00:02:56] Speaker 00:
Isn't that entirely within the district court's discretion?

[00:02:59] Speaker 02:
Well, Your Honor, as Judge Raina said and Judge Hughes agreed in the adjust-the-cam decision, deference is not absolute.

[00:03:08] Speaker 00:
If there is a clear error in the district court's decision, this court can enhance... The district court found that there were close legal, close difficult legal questions here.

[00:03:19] Speaker 00:
Do we get to say that they were not close?

[00:03:22] Speaker 02:
Well, Your Honor, I think the issue is that the district court didn't consider the two factors that Optane Fitness requires.

[00:03:31] Speaker 02:
The district court

[00:03:32] Speaker 02:
said that there were close legal issues, but the legal issues weren't close.

[00:03:36] Speaker 02:
The district court, even if the inequitable conduct decision is not reversed, even if the inequitable conduct decision stands, the district court found without question there was gross negligence on the part of Ms.

[00:03:52] Speaker 02:
Lorraine and Mr. Rogers.

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So without question, there was a breach of the duty

[00:04:00] Speaker 02:
to the patent office with respect to disclosures made today.

[00:04:05] Speaker 00:
But that seems to be different than whether it was hard to decide that as a fact finder, whether the questions presented were legally challenging.

[00:04:14] Speaker 00:
Can we say that the district court was clearly wrong about those things?

[00:04:19] Speaker 02:
Your Honor, I think that we can say that the district court was clearly wrong in that the factual findings that it made

[00:04:27] Speaker 02:
With respect to the misconduct in litigation, a finding of unclean hands is horrible misconduct during litigation.

[00:04:41] Speaker 02:
The district court used very strong words, reprehensible conduct, that it had lost all faith in Ms.

[00:04:47] Speaker 02:
Lorraine's ability to tell the truth, that there was deceit

[00:04:52] Speaker 02:
established with all the times that Mr. Bolton and Mr. Raymond couldn't recall.

[00:04:58] Speaker 02:
The problem is, Your Honor, that the court reached a conclusory statement that the costs were run up by both sides, which clearly ignores its own findings and the record in this case.

[00:05:12] Speaker 02:
There was nothing that was done unreasonably by Loving Care.

[00:05:15] Speaker 02:
In fact, the court found that, with respect to Loving Care's love to claim, they had said that it was reasonable.

[00:05:22] Speaker 02:
The court dismissed the Lanham Act claim by saying it was a dismissal without prejudice because there was no current evidence of the boycott and social media attacks.

[00:05:33] Speaker 00:
Sorry, on inequitable conduct, where the district court was a backfonder as well, the district court found that you failed to prove deceptive intent.

[00:05:45] Speaker 00:
You write, however, there can be no dispute that, for instance, with platinum pets, that the failure to disclose it was not accidental.

[00:05:56] Speaker 00:
It was deliberate.

[00:05:57] Speaker 00:
But again, wasn't that a heavily contested fact dispute at an eight-day bench trial and the district court made its findings?

[00:06:05] Speaker 02:
Well, Your Honor, the district court did make certain findings with respect to deceptive intent.

[00:06:13] Speaker 02:
One thing I want to point out that this report didn't address in its findings, which is the advice that Mrs. Lorraine got to disclose the Platinum Pets advertisement that she had found.

[00:06:29] Speaker 02:
She got that advice from Mr. McCarthy.

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She never disclosed that Platinum Pets advertisement to Mr. Williams, and she never presented an excuse for doing so.

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She never presented an excuse for nothing.

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And that very advertisement shows the functionality that she claims, peeling at the outer edge.

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Instead, what she did was she gave Mr. Williams a Amazon ad that didn't show that functionality.

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He then used that.

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And the problem, Your Honor, here is that when there is direct evidence of deceptive intent, as there was here, this is one of those rare cases.

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The drawing of entrances by the District Court was in error.

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The entrances were illogical.

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They were inconsistent with the direct evidence.

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And the witness's own testimony was inconsistent, entirely inconsistent.

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The United States Supreme Court in Gypsum has said that even on probability findings, that if there's inconsistent internal testimony or there's documentary evidence that contradicts it, that is clear error, and that would be form for reversal.

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The district court also made clear legal errors.

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The district court looked to the intent of the declarants as opposed to Ms.

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Lorraine's intent.

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And so in finding that, the district court clearly erred.

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That means there was an abuse of discretion.

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The district court also failed to look at the collective weight of the evidence.

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Instead, each act or inaction was looked at on an isolated basis.

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In our bench verdict form, we asked the court, question 12, to please look at the collective weight of the evidence and say whether or not there was deceptive intent.

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And there is precedent in this court that you can't look at each act in isolation.

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You must look at the collective weight.

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And the district court erred in not doing that.

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The district court also committed legal error in finding that the self-sealing arc

[00:08:37] Speaker 02:
that it found as a factual finding based on demonstrations that self-sealed that it was cumulative of platinum caps.

[00:08:48] Speaker 02:
But they had misrepresented platinum caps to the patent office as not self-sealed, even though they had video and had, as the district court found, had observed the suction sound, which the suction sound could only come about if there was a breaking of a partial vacuum.

[00:09:08] Speaker 02:
But Mr. Court also found, and one important thing, Your Honor, is that you have to look at the findings that were made on the obviousness decision at the same time, or at least at the same time as the stated factual findings.

[00:09:23] Speaker 00:
Ms.

[00:09:23] Speaker 02:
Lorraine, based on direct evidence, honestly admitted that she didn't think she was going to find a material scientist who would give her the answer that she wanted.

[00:09:35] Speaker 02:
That is, that her invention was unexpected.

[00:09:38] Speaker 02:
So that finding is contained within the obviousness decision, but it was seemingly overlooked in reaching the conclusion on necrodotomy.

[00:09:56] Speaker 00:
Part of what's confusing here for me is the procedure, because I know the case was pending for a while, maybe COVID had something to do with it, but by the time you got to the bench trial, the district court had already decided that the patents were invalid as obvious.

[00:10:13] Speaker 00:
and I think denied a motion for reconsideration of that, but then addresses obviousness again after the bench trial?

[00:10:20] Speaker 00:
Is that right?

[00:10:21] Speaker 02:
Well, what happened was originally at that point, Your Honor, we were moving forward with the jury filing the design patents and the trade dress infringement claims.

[00:10:28] Speaker 02:
And at that point, the elective claims and the land map claims were still pending.

[00:10:33] Speaker 02:
Peasy-peasy at that point filed the re-examination with the patent office.

[00:10:39] Speaker 02:
And so Easy Peasy had previously argued, oh, all of this evidence about inequitable conduct and duties to the Patent Office, those are moved now because the forfeiture ruled on obviousness.

[00:10:52] Speaker 02:
But once Easy Peasy then, after two bites at the apple, in trying to defend the motion for summary judgment and then reconsideration, then they filed their re-examination.

[00:11:03] Speaker 02:
And then at that point is when the district court said, well, that he was going to hear the evidence in ethical conduct and unclean hands first.

[00:11:13] Speaker 02:
And then down the road, he put off the jury trial and the design patent because he wanted to determine whether or not there was an ethical conduct and unclean hands first.

[00:11:23] Speaker 00:
And is it your contention that all the evidence that came out of trial is fairly considered in connection with the obviousness cross appeal and vice versa, that all the obviousness

[00:11:33] Speaker 00:
evidence is fair to consider on inequitable conduct on your appeal?

[00:11:38] Speaker 02:
Your Honor, I believe it is.

[00:11:39] Speaker 02:
I think that the case law supports that.

[00:11:42] Speaker 02:
And I think an important thing is that at the bench trial, the district court was able to look at the physical exhibits and see for itself

[00:11:54] Speaker 00:
But where it gets confusing, at least for me, is the district court is sitting as a fact-finder on the equitable issues, but not on the validity issue, which I know is the cross-appeal.

[00:12:08] Speaker 00:
It just seems like I'm not sure that it's as simple as the whole record.

[00:12:13] Speaker 00:
can be treated the same for all of the issues there.

[00:12:17] Speaker 00:
But that is your contention.

[00:12:18] Speaker 02:
Well, yes, Your Honor.

[00:12:20] Speaker 02:
And in the original motion for summary judgment, one of them argued it's by easy-peasy, because at that point, we had a demonstration of Ms.

[00:12:29] Speaker 02:
Lorraine lifting the pink tongue to be mad, having not put anything on it to set the partial packing, if you will, but instead tried to lift it.

[00:12:39] Speaker 02:
At that point, easy-peasy argued, well, the pink tongue

[00:12:43] Speaker 02:
Without any score, without any evidentiary score, just argument, well, the pink Tommy Tippie mat is a new version.

[00:12:51] Speaker 02:
It wasn't available in the Lorraine trial application in 2014.

[00:12:56] Speaker 02:
And the evidence presented at the trial was undisputed.

[00:12:59] Speaker 02:
It came from the physical exhibit itself, the very same pink Tommy Tippie mat with the markings on the back showing that it had actually been manufactured in either 2010 or 2011.

[00:13:10] Speaker 02:
The expert couldn't tell because the dates were

[00:13:13] Speaker 02:
put back in court.

[00:13:14] Speaker 02:
But that piece of evidence is very important to the obviousness, because there was no plate of pop put on the Cape Town to be met.

[00:13:22] Speaker 02:
It was lifted up.

[00:13:26] Speaker 02:
I see I'm approaching my time from our bottle, so if you have any other questions, if not, I'll reserve my time.

[00:13:33] Speaker 01:
All right, thank you.

[00:13:37] Speaker 01:
We'll reserve our time.

[00:13:40] Speaker 03:
Thank you.

[00:13:41] Speaker 03:
May it please the court?

[00:13:43] Speaker 03:
I'll pick up on.

[00:13:46] Speaker 03:
The points that Ms.

[00:13:47] Speaker 03:
Riesman started with, the district court has the power to decide the exceptional cases firmly within the trial's court discretion.

[00:13:58] Speaker 03:
And here, it decided that it was not an exceptional case, and that ruling should be approved.

[00:14:03] Speaker 03:
As main points, the trial court, after an eight-day trial with both direct and cross-examination of the witness and observing those witnesses in person, found that

[00:14:15] Speaker 03:
LMC did not prove that there's an equitable conduct by EZPZ.

[00:14:20] Speaker 00:
There- At the same time, and I know you'll get to your cross appeal, the district court found your advocate with unclean hands and was pretty scathing about your clients and about counsel.

[00:14:32] Speaker 00:
I'm a little bit nervous about the message it sends if we say this case does not involve an equitable conduct and this case is not exceptional and does not stand out.

[00:14:43] Speaker 00:
What kind of message does that send?

[00:14:46] Speaker 03:
Well, two things.

[00:14:47] Speaker 03:
One, our cross-appeal is that everything has needs to be reversed.

[00:14:52] Speaker 03:
One, our cross-appeal is that everything has needs to be reversed.

[00:14:55] Speaker 03:
That it fails to meet both requisite elements.

[00:14:58] Speaker 03:
One, that the five discrete acts identified by the court are not unconscionable acts.

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They don't write the element as a matter of law.

[00:15:07] Speaker 03:
And second, that there is no necessary or immediate relation identified by the court

[00:15:09] Speaker 03:
as to those acts and the claims that were dismissed.

[00:15:13] Speaker 03:
There is certainly language at the end of the opinion about reprehensible conduct and laws of candor.

[00:15:20] Speaker 03:
However, the case law is clear that unclean hands is not meant to be used to punish.

[00:15:29] Speaker 03:
It's compensatory.

[00:15:30] Speaker 03:
And it's supposed to be directed to acts that have an effect on the ethical relations between the parties.

[00:15:36] Speaker 03:
Here, that finding's not made.

[00:15:39] Speaker 03:
And arguably, there are facts in the record that show that finding cannot even be made.

[00:15:46] Speaker 03:
So I don't think that the exceptional case can rely on just that.

[00:15:50] Speaker 01:
So if you were to find, just assuming, for example, then the medal in fact

[00:15:56] Speaker 01:
Would we have to vacate and remap for further fact-finding, or could we straight out reverse?

[00:16:04] Speaker 03:
On the inequitable finding, I believe it would be dependent on how the court structure varies here.

[00:16:09] Speaker 03:
I think that my colleagues have asked for straight reversal.

[00:16:15] Speaker ?:
OK.

[00:16:15] Speaker 03:
The finding by the court of no equitable conduct, which was also in a court of parcel, the finding that this was not an exceptional case, was based on confident and adequate evidence that there is no intent to deceive with respect to how platinum caps was disclosed, and that was the main focus of my colleagues' briefing, are with respectable declarations.

[00:16:39] Speaker 01:
How about with respect to the holding of the video and everything to find the facts?

[00:16:44] Speaker 03:
Well, there are two things on that.

[00:16:46] Speaker 03:
One, that there's actually, under better testimony in the record, that the suction sound actually shows the opposite of self-sealing.

[00:16:54] Speaker 03:
So the lack of suction sound is actually closer to self-sealing.

[00:16:58] Speaker 03:
So the video that was disclosed was one that showed a product closer to self-sealing.

[00:17:05] Speaker 03:
If you look at the email itself, the, quote, undisclosed video, that

[00:17:10] Speaker 03:
The characterization by Mr. Williams is, it looks like it attempts to self-seal but fails.

[00:17:17] Speaker 03:
It is not a video where they even believe that it shows some type of self-sealing.

[00:17:21] Speaker 01:
Aside from what the content of the videos talk, what about the decision as to what to reveal to the PTO9?

[00:17:31] Speaker 03:
Well, I think that if the videos were reviews, one, the section sounds negligible between the two.

[00:17:38] Speaker 01:
But two, there's- I'm at the district court now.

[00:17:42] Speaker 01:
Oh, sorry.

[00:17:43] Speaker 03:
Let me- I'm sorry, may I- could you repeat the question?

[00:17:46] Speaker 03:
To the district court?

[00:17:48] Speaker 03:
The- at the district court, both the disclosed and undisclosed videos were disclosed to Malancy and Discovery.

[00:17:55] Speaker 03:
The-

[00:17:56] Speaker 03:
the findings that the undisclosed video should have been disclosed to the PTO, but both videos were at the district court level in trial and were provided to LNC.

[00:18:10] Speaker 03:
So there wasn't a withholding at the trial court level of those videos in any manner.

[00:18:16] Speaker 00:
If I were to turn you back to the exceptional case issue,

[00:18:21] Speaker 00:
What did the district court say that LNC did to make the litigation more expensive or made their conduct exceptional?

[00:18:32] Speaker 03:
It wasn't that they said their finance was exceptional.

[00:18:34] Speaker 03:
They said it was aggressively litigated.

[00:18:37] Speaker 03:
And it identified that L and C had taken approximately, I think it's 30 depositions.

[00:18:43] Speaker 03:
20 depositions I have.

[00:18:43] Speaker 00:
Right.

[00:18:44] Speaker 00:
It seemed like it was all very ordinary things in a typical hard-fought patent case between competitors.

[00:18:51] Speaker 00:
Did the district court ever make any finding that there was something vexatious or improper or unreasonable in any way?

[00:18:59] Speaker 00:
No.

[00:18:59] Speaker 03:
The court just said it was aggressively litigated on both sides.

[00:19:02] Speaker 00:
And is that sufficient to support the district court's finding that both sides were equally responsible for how this case was litigated?

[00:19:13] Speaker 03:
I think it is.

[00:19:14] Speaker 03:
The court said essentially in the totality of the circumstances that both sides aggressively litigated the case and that they were close to issues.

[00:19:21] Speaker 00:
I think that the... There's nothing like the finding that the district court lost

[00:19:26] Speaker 00:
confidence in counsel or witnesses for LNC, is that it?

[00:19:31] Speaker 04:
No, there's not.

[00:19:31] Speaker 00:
How about the prevailing party issue?

[00:19:35] Speaker 00:
I was unclear what your position is on appeal.

[00:19:39] Speaker 00:
Doesn't the district court have to determine who's the prevailing party?

[00:19:42] Speaker 03:
With respect to costs?

[00:19:44] Speaker 00:
On the 285s, yeah, exactly.

[00:19:47] Speaker 03:
I think that there were very, there were a lot of issues decided at the trial court.

[00:19:53] Speaker 03:
LNC won some, lost some.

[00:19:55] Speaker 00:
It doesn't, doesn't our case law say that when there's an exceptional exceptional case motion under 285, there is one and only one prevailing party and district court has to figure out who that is.

[00:20:08] Speaker 03:
But the exceptional case isn't completely reliant on the prevailing party.

[00:20:14] Speaker 03:
A prevailing party isn't entitled to be used under exceptional case.

[00:20:17] Speaker 03:
Not entitled, but entitled to move for it.

[00:20:23] Speaker 03:
Yeah.

[00:20:24] Speaker 03:
And I don't believe we arguably were not entitled to move her fees under.

[00:20:25] Speaker 00:
No, but the argument from your friend is that one of the legal errors that just the court made here is it just entirely did not decide the legal threshold question of who is the prevailing party.

[00:20:38] Speaker 00:
What is your position on that?

[00:20:39] Speaker 00:
Was that a legal error or was it not?

[00:20:42] Speaker 03:
I do believe that the court does need to decide a prevailing party.

[00:20:46] Speaker 00:
And who is the prevailing party here?

[00:20:48] Speaker 03:
I don't know.

[00:20:53] Speaker 03:
The LNC prevailed with respect to some issues that Easy Peasy prevailed with respect to some issues as well.

[00:20:59] Speaker 03:
And I don't think that the exceptional case analysis is dependent on the prevailing party.

[00:21:04] Speaker 03:
I think that comes in with respect to costs.

[00:21:06] Speaker 03:
And with respect to costs, the court decided that LNC was the prevailing party, but still denying what it costs.

[00:21:12] Speaker 03:
There was.

[00:21:17] Speaker 03:
Where I left off is I believe that there was sufficient evidence in the record that there was no intent with respect to the power cut and pesticides flows from the declarations, which was the focus of my colleague's brief.

[00:21:34] Speaker 01:
With respect to- How does this court's decision in their sense help or hurt your case?

[00:21:40] Speaker 01:
I'm sorry?

[00:21:40] Speaker 01:
How does our decision in their sense help or hurt your case?

[00:21:44] Speaker 03:
I believe that it helps our case.

[00:21:45] Speaker 03:
I think that in order to reach inequitable conduct, the bar was raised.

[00:21:51] Speaker 03:
It was meant to

[00:21:53] Speaker 03:
consolidate and try to eliminate the plague of inequitable conduct cases that were found before the court, that there are two very specific findings that need to be made by the court before inequitable conduct can be found, both materiality and intent to deceive.

[00:22:08] Speaker 03:
And if either of those are not found, inequitable conduct cannot be found, and that there's no finding that sort of science-based materiality can impact intent to deceive.

[00:22:20] Speaker 03:
So I think those two very specific findings that need to be made help our case here.

[00:22:23] Speaker 03:
that the court went through each and every one of their weapons sufficient evidence to support the finding of attempted deceit.

[00:22:34] Speaker 03:
I would say also raises this misstep of a material scientist, but this is another important point, because this has come up several times, is that Easy Peasy was not claiming that silicon, that the functionality it was claiming, this contact self-sealing, was an inherent property of silicon.

[00:22:56] Speaker 03:
So the properties of silicon that a material scientist would have

[00:23:00] Speaker 03:
testified to or not relevant easy peasy here was claiming that the structure of the planer portion was what created the contact surface of ceiling.

[00:23:12] Speaker 03:
And to the procedure, I'd like to address that.

[00:23:16] Speaker 03:
There were both legal errors and procedural errors here.

[00:23:21] Speaker 03:
There was a motion for summary judgment in seeking to validate the patent for obviousness, which was denied.

[00:23:29] Speaker 03:
We then, easy peasy, then filed a motion for reconsideration in that

[00:23:35] Speaker 03:
district court of Louisiana.

[00:23:37] Speaker 03:
They issued both an order and a ruling at the time of orders came down.

[00:23:42] Speaker 03:
So we filed the motion for reconsideration.

[00:23:43] Speaker 03:
It was right.

[00:23:44] Speaker 03:
And then we got an order that denied the motion for reconsideration that said there would be a ruling in due course.

[00:23:52] Speaker 03:
And then we didn't get that ruling until 14 months later after trial.

[00:23:57] Speaker 00:
And then that ruling- You have lost a summary judgment.

[00:24:00] Speaker 03:
We did.

[00:24:00] Speaker 03:
And then we filed a motion for reconsideration.

[00:24:02] Speaker 03:
We got the coroner denying it.

[00:24:03] Speaker 03:
But the ruling that supported- that reported to support that order didn't come down for 14 months.

[00:24:09] Speaker 03:
And that used trial testimony.

[00:24:11] Speaker 03:
to support the order that had entered 14 months prior.

[00:24:32] Speaker 00:
And it's sort of a general map that has, there is multiple factual findings in there, which is obviously improper from several judgments.

[00:24:36] Speaker 00:
Can I ask you a question?

[00:24:37] Speaker 00:
Disagree with this report on inevitable conduct and find that the only reasonable inference is inevitable conduct.

[00:24:39] Speaker 00:
We don't need to reach these obviousness questions, right?

[00:24:41] Speaker 03:
In fact, that would be dispositive in the entire case.

[00:24:55] Speaker 03:
With respect to obviousness, the court's grant of summary judgment with its ancillary rulings on motion for reconsideration and the rule 59 motion requires remand.

[00:25:11] Speaker 03:
And I should say the rule 59 motion was brought because the trial court

[00:25:16] Speaker 03:
would not permit at trial the fact that the 903 patent was confirmed and affirmed on re-examination.

[00:25:25] Speaker 03:
That information was not, ECPC was not permitted to provide that information to the trial court.

[00:25:32] Speaker 03:
And the Rule 59 sought to add that information before the trial court and to be analyzed by the trial court.

[00:25:42] Speaker 03:
In those orders, they're impermissible factual findings by the court.

[00:25:46] Speaker 03:
It gives no consideration.

[00:25:48] Speaker 03:
It does give due consideration to secondary considerations.

[00:25:52] Speaker 03:
And it did not offer any recent analysis on the motion to comply.

[00:25:57] Speaker 03:
It just says it would be obvious to try.

[00:26:00] Speaker 03:
The Secondary.

[00:26:01] Speaker 00:
Yeah, unclean hands, which is the other part of your cross appeal.

[00:26:06] Speaker 00:
Even if the District Court did not clearly articulate the immediate and necessary link between the unconscionable acts and the claims you were bringing in equity, if we think there's evidence to support that conclusion, can we consider and affirm on the basis of that other evidence, or are we only reviewing what the District Court articulated?

[00:26:28] Speaker 03:
I believe you're constrained to what the district court articulated.

[00:26:33] Speaker 03:
It's findings that those were unpunishable acts.

[00:26:36] Speaker 03:
And the immediate and necessary relation to the claims that are dismissed is a necessary link.

[00:26:42] Speaker 03:
If not, there would just be sort of punishing wrongdoing in the abstract, assuming that one believes there's wrongdoing.

[00:26:49] Speaker 03:
And punishing wrongdoing in the abstract is not permitted by the honestly enhanced doctrine.

[00:26:54] Speaker 01:
It's an equitable doctrine.

[00:27:03] Speaker 02:
I'd like to address Judge Stark's question.

[00:27:10] Speaker 02:
And with respect to the other campaigns, I disagree with my colleague.

[00:27:16] Speaker 02:
As the prevailing party, Long here is able to put forth any grounds to support the ruling.

[00:27:23] Speaker 02:
And I think we've already put that forward.

[00:27:25] Speaker 02:
And clearly, the lack of credibility on the part of Ms.

[00:27:28] Speaker 02:
Lorraine with respect to the issues that she testified to at the bench trial carries over to the other parties.

[00:27:35] Speaker 00:
It seems to me the district court resolved a whole bunch of factual disputes about the scope of the prior art, about motivation to combine.

[00:27:46] Speaker 00:
Those were issues that should have been put in front of the jury, weren't they?

[00:27:49] Speaker 02:
Well, Your Honor, I don't believe so.

[00:27:52] Speaker 02:
The Court had previously ruled in favor, in our favor on the motion for summary judgment, based on a clear language of Webb.

[00:27:59] Speaker 00:
And the Webb Patent... Does the district court ever say no reasonable fact-finder could possibly read Webb in a contrary manner?

[00:28:12] Speaker 02:
I don't know if it uses those exact words, but no reasonable person of ordinary skill in the art could read Webb in a contrary manner.

[00:28:23] Speaker 00:
And I believe one- But how do you explain the patent office on re-exam, looking at that very prior art and granting a re-exam certificate?

[00:28:32] Speaker 02:
Because the patent office said that they believed that there had to be a downward force to set and cause the partial vacuum.

[00:28:41] Speaker 00:
That language clearly only relates to... Do the cases require the district court to consider the re-exam certificate in deciding whether it is a genuine issue of material fact as to validity?

[00:28:52] Speaker 02:
Your Honor, just as in any issuance of a patent, whether it be on a provisional issue or a reissue, that does create a presumption of validity that doesn't mean that as a matter of law that the distribution... But in evaluating whether the record reveals a genuine issue of material fact, the reexamination has to be a consideration, does it not?

[00:29:14] Speaker 02:
That does have to be a consideration.

[00:29:17] Speaker 02:
But when the undisputed facts, which came out of the bench trial, for example, in the exam, they argued that it was unlikely that the pink Tommy tippy mag preceded the filing date.

[00:29:28] Speaker 02:
And the facts showed that not to be true.

[00:29:31] Speaker 02:
The facts also undisputed documentary evidence

[00:29:40] Speaker 02:
established may confirm the prior motion for summary judgment.

[00:29:46] Speaker 02:
There was also evidence both by Mr. Henley who testified that a person of ordinary skill in New York would see these things, that the partial Vatican and the

[00:29:58] Speaker 02:
the south ceiling of Socom, where no amount of persons of ordinary skill in the art.

[00:30:03] Speaker 02:
So under KSR, it is obvious and expected as a matter of law.

[00:30:09] Speaker 01:
Thank you.

[00:30:24] Speaker 03:
Thank you.

[00:30:24] Speaker 03:
I think that

[00:30:26] Speaker 03:
argument of counsel highlights the main problem of the obvious this year.

[00:30:32] Speaker 03:
She said that the undisputed facts at trial, the trial testimony was used to resolve summary judgment and that there were findings of fact by the trial court in doing so.

[00:30:44] Speaker 03:
It's black letter law that summary judgment can only be granted if there's no genuine issue of material fact.

[00:30:53] Speaker 03:
I would also say it

[00:30:55] Speaker 03:
The re-exam specifically states that, and this is an appendix 15975, the examiner concurred that the mat of the prior art does not self-seal, it was the web mat that the PTO had before it, and that only with pressure on the center portion of the vacuum form.

[00:31:15] Speaker 00:
And the trial was not about obviousness.

[00:31:17] Speaker 03:
The trial was not about obviousness, Your Honor.

[00:31:20] Speaker 03:
It also highlights another problem is that the pink Tommy tippy mat was admitted at the trial with respect to whether, let me rephrase that, the trial of course said that we had a basis to argue against the pink Tommy tippy mat at trial.

[00:31:38] Speaker 03:
We did not, because Easy Peasy did not have the pink Tommy tippy mat.

[00:31:43] Speaker 03:
So there was no reason to argue against that with respect to inequitable conduct.

[00:31:48] Speaker 03:
And then the court used that art with respect to the obviousness determination.

[00:31:52] Speaker 03:
It was an error that compelled reversal.

[00:32:27] Speaker 02:
The Honorable Court is adjourned until tomorrow morning at 10am.