[00:00:00] Speaker 00:
Our next case is 22-1099, 1 sub C versus FMC.

[00:00:06] Speaker 00:
Mr. Vincent, please proceed.

[00:00:08] Speaker 02:
May it please the court.

[00:00:09] Speaker 05:
Exceptional cases.

[00:00:10] Speaker 05:
You prepared the joint appendix in this case?

[00:00:12] Speaker 01:
Excuse me, Your Honor.

[00:00:13] Speaker 05:
You prepared the joint appendix in this case?

[00:00:15] Speaker 01:
Yes, Your Honor.

[00:00:16] Speaker 05:
The parts of it, they're illegible.

[00:00:20] Speaker 01:
Which parts are you referring to?

[00:00:21] Speaker 05:
Well, I look for the whole court's decision.

[00:00:28] Speaker 05:
You can't read it.

[00:00:32] Speaker 05:
I had to print it out and paste it.

[00:00:38] Speaker 02:
I was not aware of that.

[00:00:39] Speaker 02:
Do you have the appendix page that you're referring to?

[00:00:42] Speaker 02:
Could be an error.

[00:00:42] Speaker 05:
I don't have it here right now.

[00:00:44] Speaker 05:
Why don't you go ahead.

[00:00:45] Speaker 02:
So, exceptional case is simply one that stands out from the others.

[00:00:50] Speaker 02:
What could be more exceptional than ignoring a clear court directive and a dispositive claim?

[00:00:56] Speaker 02:
What could be more exceptional than ignoring a clear court directive and a dispositive claim construction to drive up your competitors fees for years?

[00:01:03] Speaker 02:
This was a simple case in terms of it being decided on claim construction.

[00:01:08] Speaker 02:
And therefore, this court's decision in Martech should have directed the outcome that this was an exceptional case because of the strong parallels to the facts at Martech and at the case at hand.

[00:01:21] Speaker 02:
The fact that the successor judge below did not substantively consider Martech in his opinion shows that it was an abuse of his discretion to find against FMC.

[00:01:33] Speaker 02:
The judge below did cite Marktec twice, but never delved into the facts of the case.

[00:01:39] Speaker 02:
or compare them substantively to the facts at hand here.

[00:01:43] Speaker 02:
Had he done so, it would have led to the inescapable conclusion that this too was an exceptional case just as in Mark Tech.

[00:01:51] Speaker 02:
Mark Tech involved a claim construction that was dispositive to which the patentee ducked and ignored it and proceeded to litigate and submit a very flawed expert report which was excluded and then fees were awarded.

[00:02:06] Speaker 02:
So too here.

[00:02:07] Speaker 02:
OSS here ignored the dispositive claim constraint.

[00:02:10] Speaker 05:
I've read the expert report.

[00:02:11] Speaker 05:
I don't see his arguments frivolous.

[00:02:13] Speaker 05:
And by the way, the illegible parts include 10647, which is the summary judgment decision of the lower court, which is pretty important here.

[00:02:24] Speaker 05:
You can't read it.

[00:02:26] Speaker 02:
I will get that corrected.

[00:02:28] Speaker 02:
I apologize, Your Honor.

[00:02:29] Speaker 02:
That was not apparent in our review.

[00:02:32] Speaker 02:
The fact that the expert's opinion was so flawed that it was excluded is support for our- Just so you know, it looks like it's like an ASCII.

[00:02:42] Speaker 00:
Like, do you see the giant blocks?

[00:02:43] Speaker 00:
Do you see how you can't read even rude words?

[00:02:44] Speaker 02:
I do see that.

[00:02:46] Speaker 00:
And that's throughout the entire appendix or stuff like that.

[00:02:48] Speaker 02:
10647?

[00:02:49] Speaker 00:
It's not that it's illegible, like it's blurry, or it's not words.

[00:02:58] Speaker 00:
It's like you decided to write it in Mesopotamia's symbols.

[00:03:01] Speaker 00:
Instead of words.

[00:03:03] Speaker 02:
I apologize.

[00:03:03] Speaker 02:
I have that page here, and I can see it, but we've been working off the electronic copy and apparently didn't do a thorough review of the printed copy that was forwarded to the court.

[00:03:11] Speaker 02:
So I apologize profusely, and we can't correct that, because those are substantive portions that need to be reviewed.

[00:03:20] Speaker 02:
But to... The expert said it's a different structure.

[00:03:25] Speaker 05:
It's retrievable.

[00:03:27] Speaker 05:
That doesn't seem to me to be necessarily outside the district court's claim construction.

[00:03:32] Speaker 02:
It was frivolous because it, uh, it conflicts with, uh, the judge's, um, directive in her claim construction order and at the Markman hearing that, uh, an elbow, for example, or a twist and turn in a flow path would not constitute.

[00:03:47] Speaker 05:
Well, that wasn't his argument.

[00:03:48] Speaker 05:
It was, it was, the argument was that it's a different flow path.

[00:03:50] Speaker 05:
It's a different structure.

[00:03:52] Speaker 02:
His argument was correct that because it was retrievable, it was a different flow path.

[00:03:57] Speaker 02:
And, uh, a different structure, a different structure.

[00:04:00] Speaker 02:
It was retrievable.

[00:04:01] Speaker 02:
The fact that he used that to strike an artificial dividing line between a purported first and second flow path and therefore concluded that because of that retrievability, that supposed line drawing that he was able to do, that there was a diverter.

[00:04:20] Speaker 02:
But when you trace the flow path, the path that the flow takes, there's only one conclusion that it can only go in one direction.

[00:04:29] Speaker 02:
When you take off the retrievable structure that he was referencing as the purported second flow path, the device is inoperable.

[00:04:37] Speaker 05:
The different structure question was not addressed in the claim construction, right?

[00:04:42] Speaker 02:
The claim construction addressed a current to a different... No, answer my question.

[00:04:47] Speaker 05:
The different structure issue was not addressed at claim construction.

[00:04:52] Speaker 02:
I don't recall that the different structure issue came up, but I don't think it's different than the issues that were decided, in that when you have turns in a flow path, that you can't get a diverter out of that.

[00:05:07] Speaker 02:
If you take a single flow path that snakes around, just because it turns around, just because it's directed a different way, which is what OSS has been doing.

[00:05:15] Speaker 05:
That's not what the experts said.

[00:05:17] Speaker 02:
The expert used the retrievable nature of the retrievable flow module to say that he saw that as a separate flow path.

[00:05:27] Speaker 02:
But just because you have an Ips-A-Dixit opinion about whether or not there's a second flow path doesn't necessarily mean that a diverter will manifest where one cannot exist under the court's construction.

[00:05:42] Speaker 02:
But this issue was litigated heavily in the Markman

[00:05:47] Speaker 05:
He relied on your own documents in reaching his conclusion, which he showed that your own documents viewed this as a separate system, right?

[00:06:04] Speaker 02:
It's a separate system.

[00:06:05] Speaker 02:
That's indisputable.

[00:06:07] Speaker 02:
It is separate.

[00:06:07] Speaker 02:
It is retrievable.

[00:06:09] Speaker 02:
It is a retrievable flow module.

[00:06:11] Speaker 02:
That's not the issue at hand.

[00:06:13] Speaker 02:
The point is, just because it's retrievable doesn't mean that there has to be a diversion.

[00:06:19] Speaker 02:
A diversion has a meaning that you have to go from a current flow path to a different flow path.

[00:06:24] Speaker 02:
There is only one flow path that can go through this device when the retrievable flow module is connected.

[00:06:30] Speaker 02:
And this was discussed at Markman in FMC

[00:06:34] Speaker 02:
accurately predicted at the time that OSS would make these moves and have its expert make this opinion.

[00:06:40] Speaker 05:
He didn't make that opinion.

[00:06:41] Speaker 05:
He never said that.

[00:06:43] Speaker 05:
He said it's a different structure and it's retrievable.

[00:06:47] Speaker 02:
He said that it's different.

[00:06:48] Speaker 02:
He said that it's retrievable.

[00:06:50] Speaker 02:
That is, again, indisputed.

[00:06:52] Speaker 05:
Except for the system, relying on your own documents.

[00:06:56] Speaker 05:
I don't understand why that's frivolous.

[00:06:58] Speaker 05:
It's not an issue that was addressed at Markman.

[00:07:01] Speaker 05:
It wasn't addressed by the judge until some time ago.

[00:07:05] Speaker 05:
Not even then, really, because she refused to consider the expert report.

[00:07:10] Speaker 02:
She refused to consider it because it conflicted with her constructions.

[00:07:13] Speaker 05:
That's what she said, but maybe she was wrong.

[00:07:16] Speaker 02:
I would submit that Judge Atlas would be the person who was best familiar with what she meant by her constructions.

[00:07:23] Speaker 04:
Didn't Judge Atlas say at the point in time when you think the case should have been totally over and everything after that is frivolous?

[00:07:31] Speaker 04:
She said, I can't decide in her favor.

[00:07:34] Speaker 02:
Yes, Your Honor.

[00:07:34] Speaker 04:
When she said that, she said, at the point where you say it's all over and because it's all over, everything is frivolous,

[00:07:43] Speaker 04:
The judge wrote down, so any successor judge who might have to decide this issue would understand it, that she said it's not over.

[00:07:50] Speaker 04:
I'm saying that's the way I look at it.

[00:07:52] Speaker 04:
And so I say to myself, if we're talking about somebody being frivolous here, who's making the frivolous argument?

[00:08:01] Speaker 04:
How could it be frivolous to proceed with a case when a district court says the party who's saying it's all over and you should win, you got told it wasn't?

[00:08:11] Speaker 02:
If you look at the sequence of events here.

[00:08:15] Speaker 04:
And so that was why I didn't spend as much time worrying about MarTech, as you said, because that circumstance didn't exist in MarTech.

[00:08:25] Speaker 04:
We didn't have a district court saying, sit down, be calm.

[00:08:28] Speaker 04:
I know you think you should win, but you have to wait longer.

[00:08:31] Speaker 02:
At appendix.

[00:08:32] Speaker 04:
And because you had to wait longer, you should get feeds.

[00:08:35] Speaker ?:
Right?

[00:08:36] Speaker 02:
Yes, Your Honor.

[00:08:37] Speaker 04:
Because there was a long period of time.

[00:08:39] Speaker 04:
Right?

[00:08:40] Speaker 04:
And you had to wait.

[00:08:41] Speaker 04:
while you were over at the Fatton office.

[00:08:44] Speaker 05:
At Appendix 6-5... And when she did get to it and decided, she never said it was frivolous, right?

[00:08:51] Speaker 02:
The summary judgment motion that FMC submitted in 2016... No, you're not answering my question.

[00:08:57] Speaker 02:
She never said it was frivolous, right?

[00:09:00] Speaker 02:
She did not say it was frivolous in her order, but

[00:09:04] Speaker 02:
The arguments that FMC submitted in 2016 were the same arguments that it submitted in 2020.

[00:09:09] Speaker 02:
So the fact that the same motion was submitted essentially twice in substance, and it prevailed the second time, and it was not ruled on the first time,

[00:09:19] Speaker 02:
does not mean that FMC's arguments in the first instance would not have been granted had she considered it substantively.

[00:09:28] Speaker 02:
At appendix 6584, Judge Atlas provides many reasons why she did not take up the motion at that time, including that it wasn't fully briefed.

[00:09:40] Speaker 02:
FMC didn't have the benefit of a reply.

[00:09:43] Speaker 02:
She was waiting on the patent office to potentially offer guidance that could simplify the case.

[00:09:49] Speaker 02:
The litigation is likely to be simplified through this IPR process.

[00:09:53] Speaker 02:
And again, the court had not issued a full claim construction at that time.

[00:09:57] Speaker 02:
FMC thought that it was right to move for non-infringement at that time.

[00:10:03] Speaker 02:
And it was vindicated later, because the same arguments later, when they were re-presented in 2020, were upheld.

[00:10:10] Speaker 02:
So at Appendix 2802, the first MSJ, FMC makes its core argument that twists and turns are not a diverter.

[00:10:17] Speaker 02:
That's repeated at Appendix 7000.

[00:10:19] Speaker 02:
And again, at Appendix 2793, FMC cites the Markman quote.

[00:10:24] Speaker 02:
That really is the key quote in this case where Judge Atlas said, don't do this, and OSS proceeded to Appendix 6991.

[00:10:35] Speaker 02:
We make the same argument.

[00:10:36] Speaker 02:
So it's the same motion both times.

[00:10:38] Speaker 02:
She didn't pick it up in the first instance.

[00:10:40] Speaker 02:
for other non-substantive reasons, as she explains in her order.

[00:10:44] Speaker 02:
And unfortunately, Judge Bennett's reliance on that statement was to a heightened degree, such that I believe he misinterpreted what was possibly

[00:10:58] Speaker 02:
the motivation behind not granting the first MSJ.

[00:11:01] Speaker 02:
But again, the fact that the second MSJ, the nearly identical MSJ, substantively to the first one, was granted shows that FMC's arguments were meritorious in 2016 and were right for a finding of non-infringement.

[00:11:15] Speaker 05:
But it doesn't show the other side's arguments were false.

[00:11:19] Speaker 02:
The frivolity of their arguments is demonstrated by the fact that at the end of the case they had no evidence of infringement on this divert term.

[00:11:27] Speaker 05:
You sound as though you're saying the frivolousness is evidence by the fact they have lost.

[00:11:34] Speaker 05:
That can't be evidence of frivolousness.

[00:11:36] Speaker 02:
No, Your Honor.

[00:11:37] Speaker 02:
One of the prongs under Octane is objective baselessness.

[00:11:41] Speaker 02:
What is objective baselessness if they don't have any basis for their case?

[00:11:47] Speaker 02:
At the end of years of litigation, all they had was an expert report

[00:11:50] Speaker 02:
drawing a line saying that this is a flow path, this is a second flow path, because he says so in an untestable way that violates Calvert.

[00:11:58] Speaker 05:
That's not an accurate statement.

[00:12:00] Speaker 05:
That is not what he said.

[00:12:02] Speaker 05:
He said it's a separate flow path because it's a different structure, it's a different system, and it's retrievable.

[00:12:08] Speaker 02:
But to Judge Atlas's point, that's an untestable theory.

[00:12:11] Speaker 02:
It's not admissible.

[00:12:12] Speaker 02:
And because that expert report was not able to get into the case, the OSS was left with no evidence.

[00:12:19] Speaker 02:
no evidence of infringement.

[00:12:20] Speaker 02:
There was no alternative evidence that they could go forward on.

[00:12:24] Speaker 02:
And so if they're left with no evidence of infringement, it's ultimately baseless at that point.

[00:12:30] Speaker 02:
Otherwise, that prong of octane really doesn't do any work here.

[00:12:35] Speaker 02:
This is the case where if you're left with nothing and you're left with an excluded expert report that violates the construction that the court gave and violates the instruction that the court gave at Markman,

[00:12:47] Speaker 02:
We submit that that is more than sufficient evidence for showing abuse of discretion.

[00:12:57] Speaker 03:
Good morning Chief Judge Moore.

[00:12:58] Speaker 03:
May it please the court.

[00:12:59] Speaker 03:
Bill Burgess on behalf of One Step City.

[00:13:01] Speaker 03:
Whether a case is exceptional under 285 is a discretionary question that Congress entrusted to district courts in the first instance.

[00:13:08] Speaker 03:
Under Highmark and Octane, the question for this court is whether Judge Bennett abused his discretion by not finding that this case stood out from others.

[00:13:15] Speaker 03:
The answer has to be no.

[00:13:17] Speaker 03:
This was an ordinary patent case between two competitors, one side won, one side lost, and the result ultimately turned on the meaning of the district court's claim construction.

[00:13:24] Speaker 03:
My opposing counsel points out that we had no evidence at the end of the case.

[00:13:28] Speaker 03:
That is because the same order that granted summary judgment also struck our expert.

[00:13:32] Speaker 03:
It's not as if we tried to proceed afterward.

[00:13:34] Speaker 03:
And it's not even true that we had no evidence.

[00:13:36] Speaker 03:
We had their documents.

[00:13:37] Speaker 03:
We had their admissions and deposition.

[00:13:40] Speaker 03:
The 702 ruling struck the key part of our case and also disposed of the case on the merits.

[00:13:46] Speaker 03:
One side won, one side lost.

[00:13:48] Speaker 03:
It's not as if we tried to keep going after that.

[00:13:50] Speaker 03:
Judge Bennett's order, which is what this court is reviewing, applies octane.

[00:13:53] Speaker 03:
It goes point by point.

[00:13:55] Speaker 03:
the reach of FMC's arguments and explains why this case was not exceptional.

[00:13:59] Speaker 03:
FMC can't show that was an abuse of discretion.

[00:14:02] Speaker 03:
We've heard a little bit about the standard of review.

[00:14:04] Speaker 03:
I think it's clear enough in our briefs that the abuse of discretion standard is about trial and appellate roles in the judicial system.

[00:14:10] Speaker 03:
It's not about individual cases or individual judges or when the trial judge received the case.

[00:14:15] Speaker 03:
The circuits are pretty clear about this.

[00:14:17] Speaker 03:
Our infringement position, the core of their argument is they're

[00:14:21] Speaker 03:
accusation that we argued twists and turns after Judge Atlas told us not to.

[00:14:26] Speaker 03:
And I want to be really clear about this.

[00:14:28] Speaker 03:
Our position was never about twists and turns.

[00:14:30] Speaker 03:
The questions brought this out somewhat.

[00:14:32] Speaker 03:
It was about modules, interchangeable modules in FMC's device.

[00:14:35] Speaker 03:
And you can see them all at appendix 74.

[00:14:36] Speaker 00:
And even if you argued that after the judge told you not to, the judge decided it didn't make the case exceptional.

[00:14:41] Speaker 03:
Right.

[00:14:42] Speaker 03:
Exactly.

[00:14:44] Speaker 00:
I mean, I don't know that you need to go through the merits of whether you did or didn't.

[00:14:48] Speaker 03:
I totally agree.

[00:14:50] Speaker 03:
The question is not who is right about infringement.

[00:14:52] Speaker 03:
It's not even what this court thinks of that argument.

[00:14:55] Speaker 00:
Exactly.

[00:14:56] Speaker 00:
Didn't you offer evidence of infringement, some of which was just not admissible?

[00:15:00] Speaker 03:
Right.

[00:15:01] Speaker 00:
It's not like this is Rule 11 where you had no evidence.

[00:15:04] Speaker 00:
You unfortunately had inadmissible evidence.

[00:15:06] Speaker 03:
Exactly.

[00:15:07] Speaker 03:
Yes.

[00:15:08] Speaker 03:
It's not the case that every party on the wrong side of a claim construction argument or on the wrong side of

[00:15:13] Speaker 03:
evidentiary dispute is also on the wrong side of an exceptional case.

[00:15:16] Speaker 03:
I mean, this was just an extremely ordinary patent case where one side won, one side lost, and the side that won is going after fees.

[00:15:24] Speaker 00:
If you want to, why don't you for just a second, we don't really get into it much, but just to address the standard of review question.

[00:15:31] Speaker 03:
Sure.

[00:15:32] Speaker 03:
I mean, it's about trial and appellate rules in the judicial system.

[00:15:36] Speaker 03:
And I think Anderson and Highmark are quite clear about this.

[00:15:39] Speaker 03:
I think the Supreme Court Sarnayev case recently said, we really mean this.

[00:15:43] Speaker 03:
I think the Sarnayev case said there isn't an exception for famous cases with a lot of media exposure.

[00:15:49] Speaker 03:
Abusive discretion is about certain calls that are entrusted to district courts in the first instance.

[00:15:55] Speaker 03:
Deference is the hallmark of abusive discretion.

[00:15:59] Speaker 03:
We cited a bunch of cases in our red brief that I don't think FMCs really responded to, where other parties have tried arguments just like FMCs, and the circuits have consistently rejected them, including citing Anderson.

[00:16:11] Speaker 03:
I mean, they do have a Fourth Circuit case and a Seventh Circuit case that they quote, but I think as our brief also explains, those circuits have distinguished those two cases and essentially limited them to their facts.

[00:16:20] Speaker 03:
The Henry and Nott case, the Fourth Circuit addressed it.

[00:16:22] Speaker 04:
There are factual circumstances that can exist in a case

[00:16:27] Speaker 04:
that would suggest that you have a more rigorous standard of review.

[00:16:32] Speaker 04:
That's the fourth and seventh circuits.

[00:16:34] Speaker 03:
I think that is the most you could possibly get out of those cases.

[00:16:38] Speaker 04:
They've held those cases to that and different facts.

[00:16:43] Speaker 04:
Couldn't you hypothetically have a case that turned had a whole mess of witnesses and the issue entirely turned on credibility of the witness and the trial judge made a credibility call and the credibility call itself was being questioned.

[00:16:58] Speaker 04:
as whether it was appropriate or not.

[00:17:00] Speaker 03:
Yes.

[00:17:00] Speaker 03:
And I think that's the focus.

[00:17:01] Speaker 04:
And then you have the trial judge who made the credibility call, either passes away or leaves.

[00:17:06] Speaker 04:
And a few years later, you have some other judge trying to decide whether those credibility calls were correct or not.

[00:17:11] Speaker 03:
Right.

[00:17:12] Speaker 03:
I mean, I think that is the most you can possibly get out of the bank card in the Henry and Knott cases is when there is something central to the case that turns on live witness credibility.

[00:17:20] Speaker 03:
And I think both of those cases involve trial on the merits.

[00:17:23] Speaker 03:
Then one district judge reviewing a cold record

[00:17:26] Speaker 04:
Those cases rightly question whether there's deference, but the national heritage... But if you have a situation like that, how does the appellate court proceed?

[00:17:34] Speaker 04:
What is the standard?

[00:17:36] Speaker 04:
Is it de novo?

[00:17:38] Speaker 04:
In Henry and not, I don't think it was a question for... I'm just asking you as a hypothetical, if you have a case that all turned on credibility and evidence, was this witness, did you correctly say this witness shouldn't have been believed?

[00:17:52] Speaker 03:
I think the Anderson case says it can't be all about credibility.

[00:17:56] Speaker 03:
It's not about the trial judge's superior ability to judge credibility.

[00:18:00] Speaker 03:
So I'd be reluctant to say that there even are these scenarios where you can withhold deference from district courts.

[00:18:06] Speaker 03:
But I suppose you can imagine a case where there's an important fact.

[00:18:10] Speaker 03:
There's a trial on the merits.

[00:18:12] Speaker 03:
And the key issue is live witness credibility.

[00:18:14] Speaker 03:
And you have to make a demeanor-based credibility finding.

[00:18:17] Speaker 03:
In that case, it would be difficult to defer to a

[00:18:21] Speaker 03:
purported demeanor-based credibility finding from someone who hadn't actually observed the demeanor.

[00:18:27] Speaker 03:
Getting pretty far into hypotheticals, I'm not sure how far that goes, especially in light of Anderson, especially in light of Highmark, and especially in light of the cases that we cite in our briefs.

[00:18:38] Speaker 03:
In this case, this isn't about live witness credibility or demeaning of his credibility findings.

[00:18:42] Speaker 03:
Highmark was quite clear that the abusive discretion standard applies to all aspects of the district court's exceptional case determination.

[00:18:49] Speaker 03:
I think that's about as clear as the court could possibly be in Highmark.

[00:18:53] Speaker 03:
I think that's the standard the court should apply here.

[00:18:56] Speaker 00:
Okay, anything further?

[00:18:58] Speaker 03:
I can talk about Mark Tech if you want, or if the court has any other questions, I'm happy to answer them.

[00:19:02] Speaker 03:
I think quickly I would point out Mark Tech was a pre-octane case that applied a different standard.

[00:19:06] Speaker 03:
vastly different facts as we point out in our briefs, and it affirmed under abusive discretion review, which doesn't necessarily mean that the result was compelled.

[00:19:13] Speaker 03:
With that, if the court has no further questions, I thank the court for their time.

[00:19:20] Speaker 02:
Quickly to address MarkTech, it was under an earlier standard of review, but it was under a higher standard of review.

[00:19:26] Speaker 02:
This was under Brooks Furniture.

[00:19:28] Speaker 02:
So the Supreme Court recognized in Octane that Brooks Furniture was unduly restrictive, and therefore since the MarkTech facts passed Brooks Furniture, they should easily pass Octane here.

[00:19:39] Speaker 02:
OSS said that it addressed the facts in their briefing as to how it distinguished the facts.

[00:19:46] Speaker 02:
At this case, it barred or distinguished from Mark Tech.

[00:19:49] Speaker 02:
I respectfully disagree.

[00:19:50] Speaker 02:
I don't believe that they actually did try to distinguish.

[00:19:54] Speaker 02:
All that I saw in their briefing is that they recognized that Judge Bennett found this case not exceptional and cited Mark Tech.

[00:20:02] Speaker 02:
But again, just as Judge Bennett didn't delve into the parallels between

[00:20:06] Speaker 02:
a dispositive claim construction, an excluded ex-report, neither did OSS here.

[00:20:10] Speaker 02:
So I still believe that Mark Tech is the best poll star for the case here.

[00:20:15] Speaker 02:
I do want to be clear that FFC is not arguing that should you lose the case that you're entitled to fees.

[00:20:24] Speaker 02:
That's absolutely not our argument.

[00:20:26] Speaker 02:
Fees are justified here due to the exceptional conduct that we have outlined and the baseless nature of the case.

[00:20:34] Speaker 02:
So I just want to make sure that

[00:20:35] Speaker 02:
The panel does not misunderstand FMC as overreaching here.

[00:20:39] Speaker 02:
That is not the case.

[00:20:40] Speaker 02:
We are asking for fees in this particular case for this particular conduct.

[00:20:46] Speaker 02:
It is, luckily, a rare case that you see something like this.

[00:20:50] Speaker 02:
And so that's why we felt that an injustice was done and not awarded.

[00:20:54] Speaker 04:
This is all conduct relating to selecting what type of argument to make.

[00:20:59] Speaker 04:
So this is not misbehavior.

[00:21:03] Speaker 02:
This is the decision of OSS to proceed in the face of a dispositive claim construction that render their case objectively baseless.

[00:21:10] Speaker 04:
Right.

[00:21:11] Speaker 04:
After the judge said, I can't rule in your favor on the claim construction, the case has to go forward.

[00:21:17] Speaker 02:
After the judge said that she didn't want to rule on the summary judgment at the time, in light of a lot of them.

[00:21:23] Speaker 02:
Right.

[00:21:23] Speaker 04:
But I mean, if you're correct on your theory of the case, you were entitled to summary judgment.

[00:21:29] Speaker 04:
We were entitled to summary judgment.

[00:21:33] Speaker 04:
Sorry, you've heard my take on the cases.

[00:21:35] Speaker 04:
The judge said, let's go on.

[00:21:37] Speaker 04:
And you said it was unreasonable to go on.

[00:21:42] Speaker 02:
Understood, Your Honor.

[00:21:44] Speaker 02:
I've made the point.

[00:21:44] Speaker 02:
I won't beat that horse any further.

[00:21:47] Speaker 02:
Regarding the standard here, again, to be clear, we do believe this is an abuse of discretion.

[00:21:52] Speaker 02:
We're not asking the court to make new law here.

[00:21:56] Speaker 02:
There is an apparent circuit split as to when a lower standard is available.

[00:22:02] Speaker 02:
And if any case applies, it would be this one, because Judge Bennett had the unenviable ask of reviewing this voluminous record.

[00:22:12] Speaker 02:
This was his only decision to the case.

[00:22:14] Speaker 02:
He came in at the very end to render this decision.

[00:22:17] Speaker 02:
And so he's in no better position than the panel is today.

[00:22:20] Speaker 00:
That would apply every time that a case isn't turning exclusively on credibility or something.

[00:22:26] Speaker 00:
So what you're asking for would be taking what all the courts in the country have said are two really narrow cases that even those courts limit to their facts, and you would make them excessively broad.

[00:22:38] Speaker 00:
How many cases are you involved in where a new judge has to pinch hit at some point for some other judge?

[00:22:44] Speaker 00:
This happens all the time.

[00:22:46] Speaker 00:
What you're asking for would amount to an enormous disruption in the way the legal system works and the standards of review.

[00:22:53] Speaker 00:
It's not a welcome argument or a well-briefed

[00:22:56] Speaker 05:
Maybe it's even in peripheral, sorry.

[00:22:59] Speaker 00:
Okay, anything further?

[00:23:03] Speaker 01:
How about nothing further?

[00:23:08] Speaker 00:
Thank you, this case is taken under submission.