[00:00:00] Speaker 03:
We have three argued cases.

[00:00:01] Speaker 03:
The first is number 22, 1814, Pro Batter Sports LLC versus Sports Tutor, Inc., Mr. Roberts.

[00:00:12] Speaker 01:
May it please the court, Your Honors.

[00:00:13] Speaker 01:
Good morning.

[00:00:14] Speaker 01:
I'm Chris Roberts on behalf of Sports Tutor.

[00:00:17] Speaker 01:
My client was found guilty of willful patent infringement without being permitted to put on its full case towards that issue at the trial on willfulness.

[00:00:27] Speaker 01:
Now, this occurred in part

[00:00:29] Speaker 01:
because when the trial court was explaining the sports tutor at appendix 2158, that it would not be permitted to put on such evidence at the trial on willfulness, the second trial, that it would not be permitted to do so because, and I quote, willfulness and infringement are the same issue.

[00:00:48] Speaker 01:
It's just a matter of degree.

[00:00:51] Speaker 00:
Did the first trial involve the issue of willfulness?

[00:00:55] Speaker 01:
Right.

[00:00:55] Speaker 01:
So this is a complicated question, if I may sort of parse through my answer on this.

[00:00:59] Speaker 00:
We are familiar with the facts of the case.

[00:01:01] Speaker 01:
Yes, ma'am.

[00:01:02] Speaker 01:
Yes, your honor.

[00:01:03] Speaker 01:
And to some degree, the answer must be yes, in the sense that some semblance of a discussion pertaining to willfulness was had.

[00:01:13] Speaker 01:
Certainly, ProBatter put in their evidence pertaining to willfulness.

[00:01:16] Speaker 01:
And I think sports theory even asked a singular question on cross-exam before sitting down.

[00:01:22] Speaker 01:
But on the other hand, the answer to that question must be no.

[00:01:25] Speaker 00:
Well, can I ask you this?

[00:01:26] Speaker 00:
Was it unclear whether willfulness would be an issue in the first trial?

[00:01:33] Speaker 01:
I do not think so, because damages had been taken off the table during the pre-trial conference.

[00:01:39] Speaker 00:
There was a day, I think, the first pre-trial conference hearing where there was some sort of strong statement like damages have been waived.

[00:01:50] Speaker 00:
Your only option is an injunction.

[00:01:52] Speaker 00:
But the next day, isn't it so that a motion was filed with additional information relating to that issue?

[00:01:59] Speaker 00:
And then a week later, on the first day of trial, wasn't it made clear that the judge would consider the damages evidence and then decide later whether damages would be on the table or not?

[00:02:11] Speaker 01:
No.

[00:02:12] Speaker 01:
A memorandum was filed, I think that's ECF 427, urging the court not to do this.

[00:02:20] Speaker 01:
But the court said unequivocally, we're not going to have a damages trial later.

[00:02:25] Speaker 01:
And there was no statement.

[00:02:26] Speaker 01:
She said that before.

[00:02:27] Speaker 01:
She didn't say that at the trial.

[00:02:29] Speaker 01:
Yes.

[00:02:29] Speaker 01:
And my point with this is that no portion of trial indicated that that statement was being undone.

[00:02:37] Speaker 00:
What about just hearing evidence on reasonable loyalty and saying,

[00:02:42] Speaker 00:
I will decide later what to do about that evidence.

[00:02:46] Speaker 00:
Why isn't that an indication that the judge is saying, even if I said those other things earlier, I'm changing my mind as I have the right to do and let one week after I made some strong statements

[00:03:02] Speaker 00:
at a hearing.

[00:03:02] Speaker 01:
Yes, and to be clear, this is a very important point as to what the judge said on this issue.

[00:03:07] Speaker 01:
The judge said it would consider what to do later about sports tutors' objection to the entry of such evidence.

[00:03:14] Speaker 01:
No portion of that discussion indicated that it was going to undo its damages trial.

[00:03:20] Speaker 00:
Why in the world would the judge say, I am not going to consider damages

[00:03:26] Speaker 00:
then say, I'll decide what to do with the damages evidence later, if it wasn't that she was reconsidering her decision.

[00:03:34] Speaker 01:
To be clear, it said, I'll decide what to do with Sports2Go's objection later.

[00:03:37] Speaker 01:
And the objection was to say, you already ruled that damages wasn't part of it.

[00:03:41] Speaker 01:
This shouldn't be coming in at all, because it's mooted.

[00:03:44] Speaker 01:
And the court said, OK, I'll hear it.

[00:03:45] Speaker 00:
Do you think the judge didn't have the right to change her mind?

[00:03:49] Speaker 01:
Of course, a trial court has discretion on how to run their courtroom.

[00:03:54] Speaker 01:
One of the issues that arises is under law of the case.

[00:03:57] Speaker 02:
Wait a second.

[00:03:58] Speaker 02:
So is the answer yes, that a trial judge has the right to revisit a ruling?

[00:04:03] Speaker 01:
They have the power to do so, yes.

[00:04:05] Speaker 02:
OK.

[00:04:06] Speaker 01:
However, under the framework of law of the case, if doing so would prejudice the parties based off of a detrimental reliance of a pre-ruling and there's no sort of warning that it's going to be undone.

[00:04:19] Speaker 02:
What is the evidence of detrimental reliance?

[00:04:22] Speaker 02:
As I recall, there was a big colloquy on the first day of trial.

[00:04:29] Speaker 02:
and then you made objections during the trial, and then you had JMAW motions, and all of those acts by your side

[00:04:40] Speaker 02:
uh, seemed to indicate that you were seeking to get a ruling from the trial judge, not that the trial judge had already made a rule.

[00:04:49] Speaker 02:
In fact, I don't recall you at any time during the trial or in the post trial briefing, uh, suggesting that the district court had already made a ruling during the pretrial conference.

[00:05:02] Speaker 01:
Well, I would disagree with that.

[00:05:04] Speaker 01:
There was a motion.

[00:05:05] Speaker 01:
Okay.

[00:05:05] Speaker 02:
Where did you say, perhaps on the first day of trial or at your objection or in any of your Jamal motions, Hey judge, don't forget, you already made a ruling on this during the pretrial conference.

[00:05:18] Speaker 02:
You already ruled that the other side waived damages.

[00:05:24] Speaker 01:
So the strongest place... Where would that be?

[00:05:26] Speaker 02:
I didn't find it.

[00:05:28] Speaker 01:
Yes, Your Honor.

[00:05:29] Speaker 01:
And the strongest place that it was as close to the verbiage you're using is in the motion to adhere to its pre-trial determinations in which it said that an order was made.

[00:05:41] Speaker 00:
During trial... Could you give us an appendix page?

[00:05:46] Speaker 01:
I may honor a further discussion on rebuttal as to that particular motion, but as far as... But DC, I'm just trying to interpret what happened in the record.

[00:05:56] Speaker 02:
I'm trying to read the words of your counsel in the first day of trial and then look at the J-Mall motions.

[00:06:04] Speaker 02:
I don't see anywhere where it said, look, you already made a ruling.

[00:06:07] Speaker 02:
And we relied on that ruling.

[00:06:09] Speaker 02:
And in fact, the whole course of the trial, the damages came in

[00:06:14] Speaker 02:
the evidence came in, and it seems to me that you were on notice that there's a strong possibility that damages was going to be decided during that first trial.

[00:06:28] Speaker 01:
I would disagree.

[00:06:29] Speaker 01:
As far as damages, the court was quite clear.

[00:06:32] Speaker 01:
Now, the JMAW on Appendix 1408 as to willfulness was on the basis that damages had been mooted.

[00:06:42] Speaker 01:
Sports Tutors Council right there at Appendix 1408, as Probator points out, said, Your Honor, willfulness should be decided on JMAW because damages is mooted.

[00:06:55] Speaker 01:
And it said so in such strong words.

[00:06:57] Speaker 01:
Now, I do wish that during trial I sort of have the same lens that this panel does that I can just look at it like that.

[00:07:03] Speaker 02:
You were urging at that time for the district court to make a ruling that damages had been waived and so therefore willfulness had been mooted.

[00:07:12] Speaker 00:
No, we were urging the court to find that willfulness must be decided on Jamal B. Actually, what you said was you said it's in the event that there are no damages.

[00:07:23] Speaker 01:
Because triple zero is still zero.

[00:07:25] Speaker 01:
Right.

[00:07:25] Speaker 01:
They're speaking somewhat deferential to the judge.

[00:07:28] Speaker 01:
But in any other way.

[00:07:29] Speaker 00:
It doesn't suggest that there is an understanding that she already ruled.

[00:07:33] Speaker 00:
It's an understanding that there might not be damages.

[00:07:38] Speaker 00:
Right?

[00:07:39] Speaker 00:
In the event that.

[00:07:41] Speaker 01:
Saying that in the event that damages are... Right.

[00:07:45] Speaker 00:
Suggesting that there wasn't already a ruling, right?

[00:07:48] Speaker 01:
Speaking deferentially, saying that when damages is ruling and since not saying... When it's ruled on in the future.

[00:07:55] Speaker 01:
Well, saying that they're not saying to the judge unequivocally, hey, you decided this and now you're prejudicing.

[00:08:04] Speaker 01:
prejudicing us.

[00:08:05] Speaker 03:
They're speaking deferentially to her.

[00:08:17] Speaker 03:
was on April 28, 2017, which you said there that she had ruled earlier on these things, and she should adhere to those determinations.

[00:08:30] Speaker 03:
And she recognized that she'd made rulings earlier, but she decided at that point not to adhere to them.

[00:08:37] Speaker 03:
But I think the question is, did you make a similar motion or argument

[00:08:45] Speaker 03:
at the trial itself, that the judge had already made a ruling not to have a damages trial, that she should adhere to it.

[00:08:55] Speaker 03:
I see that happening later, but not at the trial itself.

[00:08:59] Speaker 01:
And to Judge Stahl's point, when sports tutor was urging it, they were doing so deferentially.

[00:09:05] Speaker 01:
They weren't saying unabashedly, this is all done, acknowledging that it's still sort of her power.

[00:09:11] Speaker 01:
But to this point,

[00:09:13] Speaker 01:
It's clear that SportsTutor did not put on evidence pertaining to this at the first trial.

[00:09:19] Speaker 00:
Can I ask you something?

[00:09:20] Speaker 00:
Yes.

[00:09:21] Speaker 00:
Why wouldn't evidence, what is the evidence that would have been put on?

[00:09:26] Speaker 00:
I think it relates to whether or not SportsTutor copied.

[00:09:31] Speaker 00:
And why wouldn't that be put on where an issue in the case is willfulness?

[00:09:35] Speaker 00:
Why wasn't that put on in the first case?

[00:09:38] Speaker 01:
I'm sorry, are you asking about why willfulness was not put on?

[00:09:40] Speaker 00:
Well, I guess I got a two-part question.

[00:09:43] Speaker 00:
Yes.

[00:09:44] Speaker 00:
What is the evidence that you would have presented pertaining to willfulness?

[00:09:49] Speaker 00:
That you think you were prejudiced and you weren't able to present?

[00:09:52] Speaker 00:
Yes.

[00:09:52] Speaker 01:
Yes.

[00:09:53] Speaker 01:
A couple things.

[00:09:54] Speaker 01:
SportsFooter would call Bill Green, the CEO, during its case in chief and for the first time talk about his mens rea in relation to the notice letter.

[00:10:03] Speaker 01:
Now, the court referred to this as a notice letter and that's important because nobody went through and the notice letter is at page 649 of the appendix.

[00:10:14] Speaker 01:
It does not accuse him of infringement.

[00:10:17] Speaker 01:
It does not point to any particular claim.

[00:10:20] Speaker 01:
Does it have to accuse him of infringement?

[00:10:23] Speaker 01:
to be a notice letter, it at least has to give some semblance of an acknowledgement that they believe they're infringing their patents.

[00:10:33] Speaker 01:
Going to a essentially small company and saying, here's a mountain of patents.

[00:10:37] Speaker 02:
I think I saw a quote in your brief that suggested that, yes, you have to allege infringement.

[00:10:42] Speaker 02:
And I looked up that case, and it didn't say what you said it says.

[00:10:47] Speaker 01:
I don't think that there's a very strict guideline as to the magic words that need to be in a notice letter, but it at least needs to apprise a reasonable person that they are infringing a patent.

[00:11:00] Speaker 01:
Here, that's not the case.

[00:11:02] Speaker 01:
They only ask Bill Green to do one thing, and that's, please show us your patents.

[00:11:08] Speaker 01:
This seems like a letter from two

[00:11:10] Speaker 01:
industry members that are equally worried about infringing their competitors patents as they are towards infringing a patent which are alleging infringement of a patent.

[00:11:25] Speaker 01:
Now in any event

[00:11:27] Speaker 01:
It is clear that sports tutor did not put on its full case towards these issues at the first trial.

[00:11:35] Speaker 00:
I still don't understand what the evidence is that you are saying that you would have put in.

[00:11:41] Speaker 00:
had you made the strategic decision to present a defense to the claim of willfulness at the first trial?

[00:11:48] Speaker 01:
Yes, Your Honor.

[00:11:48] Speaker 01:
At the bare minimum, it would have been a discussion of the mens rea of the person accused, and that was not had.

[00:11:54] Speaker 01:
But in addition to that, one thing that was never really explained to the court as it pertains to dynamic breaking is the fact that there's only three ways to slow down a wheel.

[00:12:03] Speaker 01:
And Bill Green, who has an engineering degree, would understand this, that you either simply

[00:12:10] Speaker 01:
add a brake to it, or reduce the voltage to it, or use dynamic braking.

[00:12:14] Speaker 01:
And no person who is in this space would suspect that dynamic braking is the subject of a patent claim.

[00:12:23] Speaker 01:
And that discussion was not had.

[00:12:24] Speaker 00:
There was no discussion of dynamic braking?

[00:12:27] Speaker 01:
No, towards a person's reasonable belief that it wouldn't be part of a patented claim here.

[00:12:35] Speaker 00:
I had thought that maybe there were some invoices that you would seek to present.

[00:12:40] Speaker 01:
Yes, and those are the next point.

[00:12:42] Speaker 01:
And those pertain on a couple issues, including copying.

[00:12:45] Speaker 00:
They relate also to validity, don't they?

[00:12:48] Speaker 00:
That's right.

[00:12:50] Speaker 00:
Were those invoices presented as part of the validity defense in the first trial?

[00:12:54] Speaker 01:
No, the invoices themselves were belatedly discovered.

[00:12:58] Speaker 01:
And sports tutors specifically did not introduce them, because they didn't want to disturb the prior ruling that damages had been waived.

[00:13:05] Speaker 01:
And in any event, it was clear to the court that sports tutor was operating under the belief that willfulness was not part of the first trial.

[00:13:12] Speaker 01:
And yet, when it begged the court to be able to put in such evidence.

[00:13:15] Speaker 00:
I think that willfulness wasn't part of the trial, if you move for Jamal on willfulness.

[00:13:20] Speaker 01:
Because damages wasn't part of the first trial.

[00:13:22] Speaker 00:
But roofliness and damages aren't the same thing, right?

[00:13:25] Speaker 00:
I understand that three times zero is zero, but first of all, if you didn't have a definitive ruling on damages, that seems like a strategic decision that maybe was not the right one in hindsight.

[00:13:37] Speaker 00:
And it was based on the ruling.

[00:13:38] Speaker 00:
Yes, John.

[00:13:42] Speaker 00:
Willfulness is kind of a bad tag anyway to receive.

[00:13:46] Speaker 00:
It goes along with infringement.

[00:13:47] Speaker 00:
Why wouldn't somebody defend against a charge of willful infringement along with defending against the charge of infringement?

[00:13:55] Speaker 01:
That's a good point, Your Honor.

[00:13:56] Speaker 01:
Infringement was also not part of the first trial.

[00:13:58] Speaker 01:
Neither was damages.

[00:13:59] Speaker 01:
And so to its essence, willfulness particularly goes to those issues.

[00:14:04] Speaker 01:
And it's at least clear to the trial court that sports tutor was operating under the belief that that's not part of this trial.

[00:14:10] Speaker 01:
And when it asked to put in further evidence, it was not permitted.

[00:14:13] Speaker 01:
Now, as a standalone matter, generally speaking, at appendix 21,

[00:14:18] Speaker 01:
of the court's ruling, it said, we're going to have a trial on willfulness.

[00:14:23] Speaker 01:
It's yet to be adjudicated, and yet you don't get to put in any evidence.

[00:14:27] Speaker 01:
And we would submit that that on its face is clear error, and we would ask to remand for our ability to at least put in enhanced damages evidence on that issue.

[00:14:37] Speaker 02:
In your brief at page 22, you cite to a case called Amstead versus Buckeye Steel.

[00:14:44] Speaker 02:
for the proposition that, quote, a letter notifying a defendant of the plaintiff's patents, which does not allege infringement, is not notice of infringement for purposes of willful infringement, end quote.

[00:14:57] Speaker 02:
I couldn't find that quote in that opinion, and we didn't provide a pin site.

[00:15:00] Speaker 02:
Do you have a copy of the opinion?

[00:15:02] Speaker 01:
I do not, but I'll endeavor here to try to get you one.

[00:15:04] Speaker 01:
And if you like, I will supplement that particular case if you wish.

[00:15:11] Speaker 02:
I think I already know what it says.

[00:15:14] Speaker 01:
Okay, I believe that is my time, but if you wish, I'll take a look at that issue and try to see where the quote comes from.

[00:15:21] Speaker 03:
Well, you're out of time, but we'll give you two minutes of rebuttal.

[00:15:31] Speaker 04:
Horvack.

[00:15:31] Speaker 04:
Yes.

[00:15:32] Speaker 04:
Good morning, Your Honor.

[00:15:32] Speaker 04:
May it please the court.

[00:15:33] Speaker 04:
My name is John Horvack.

[00:15:35] Speaker 04:
I come here for pro batter sports.

[00:15:38] Speaker 04:
Um, essentially sports suit raises two issues.

[00:15:41] Speaker 04:
Both in my judgment are without any merit whatsoever.

[00:15:45] Speaker 04:
The first challenges and enhanced damages award.

[00:15:49] Speaker 04:
Um, as this court has said specifically in state industries versus more flow, that type of issue is committed to the sound discretion of the trial judge.

[00:15:58] Speaker 03:
Yeah, but the argument here is that she stated she wouldn't consider your client's misconduct in considering the enhancement issue.

[00:16:08] Speaker 03:
And we have a line of cases, the most recent one I think is ROMAG, stating that in considering attorney's fees, which is a similar issue, that you have to consider misconduct even though it's been sanctioned.

[00:16:27] Speaker 04:
In the first place, the judge never said she was going to bar or exclude damages because they were waived.

[00:16:35] Speaker 03:
My first endeavor in this case... You're not addressing what I was asking you about.

[00:16:41] Speaker 03:
She declined to consider your client's misconduct and the issue of enhancement, right?

[00:16:47] Speaker 03:
That's true.

[00:16:49] Speaker 03:
Yeah.

[00:16:49] Speaker 03:
And why isn't that an error under ROMAG in earlier cases that addressed that issue in the context of attorneys?

[00:16:57] Speaker 04:
Well, that's never been raised as an issue by a sports tutor, as an issue which should be adjudged.

[00:17:04] Speaker 03:
I thought in their brief they argued that she needed to, that she earned and not considering your misconduct.

[00:17:12] Speaker 04:
No.

[00:17:13] Speaker 04:
No, they argued that the judge was mistaken by finding that sports tutor deliberately copied the patented technology.

[00:17:24] Speaker 04:
She was mistaken.

[00:17:25] Speaker 04:
because she found Mr. Green's testimony to be utterly without credibility.

[00:17:31] Speaker 04:
And they argued that, no, the judge was wrong when she found that the sports tutor went into the courtroom and presented false evidence in an effort to manufacture a prior defense when they had no defense.

[00:17:49] Speaker 02:
From that perspective, that implies that the defendant didn't, in addition to all that, also argue that the plaintiff had committed different forms of litigation misconduct.

[00:18:00] Speaker 02:
And those plaintiff misconduct need to be considered in evaluating whether to enhance damages?

[00:18:07] Speaker 04:
I believe below that was an issue for certain.

[00:18:10] Speaker 04:
And the judge said that I've already addressed that question.

[00:18:14] Speaker 00:
What about on page 26 through 27 of the blue brief?

[00:18:18] Speaker 00:
Of their brief?

[00:18:19] Speaker 00:
Of their brief.

[00:18:20] Speaker 00:
OK.

[00:18:20] Speaker 00:
Here before this court.

[00:18:23] Speaker 04:
OK.

[00:18:24] Speaker 00:
You might want to take a look at it.

[00:18:31] Speaker 02:
I believe your red brief says that whatever they're arguing at page 26 would waive because it's some different animal of an argument compared to what they actually argued below.

[00:18:42] Speaker 04:
Right.

[00:18:44] Speaker 02:
I think that- Clean hands theory is what you described it as.

[00:18:48] Speaker 03:
Right.

[00:18:49] Speaker 03:
Well, it's not an unclean hands argument.

[00:18:51] Speaker 03:
That's not the way it's been treated in our past cases.

[00:18:53] Speaker 03:
So on 26, they do raise this argument, right?

[00:18:57] Speaker 03:
They do.

[00:18:58] Speaker 03:
They do.

[00:18:58] Speaker 03:
You're right.

[00:18:58] Speaker 03:
Okay.

[00:18:59] Speaker 03:
So you shouldn't say that they didn't when they did.

[00:19:02] Speaker 04:
Okay.

[00:19:03] Speaker 04:
I misspoke, Your Honor.

[00:19:04] Speaker 04:
I apologize for that.

[00:19:05] Speaker 03:
What's the answer?

[00:19:09] Speaker 03:
Why was it proper for her to refuse to consider your misconduct?

[00:19:14] Speaker 04:
Because I believe the enhancement statute focuses on the culpability of the defendant, number one, and that doesn't take into account

[00:19:23] Speaker 03:
The plaintiff's misconduct, if there is a... You've got to consider the totality of the circumstances.

[00:19:28] Speaker 03:
If that's part of the totality of the circumstances for purposes of a word of attorney's fees, why isn't it similarly part of the totality of the circumstances with respect to enhanced damages?

[00:19:39] Speaker 04:
Because I do think the focus of the statute is on the culpability of the defendant, number one.

[00:19:43] Speaker 04:
And number two, the judge was correct that whatever mistakes were made by probatter, they were addressed.

[00:19:51] Speaker 04:
remedied and they should not be counted twice against program.

[00:19:55] Speaker 03:
The cases say that that's exactly the wrong argument.

[00:20:00] Speaker 03:
The cases say that the fact you were sanctioned before is not a reason for refusing to consider this in connection with attorney's fees.

[00:20:08] Speaker 03:
It's a reason to consider it.

[00:20:11] Speaker 03:
It's the exact opposite of what the judge said here.

[00:20:15] Speaker 04:
Well, I don't believe there is a case with respect to this particular statute here.

[00:20:20] Speaker 04:
where a court has said, this court has said, that the patentee's conduct

[00:20:27] Speaker 04:
litigation misconduct, whatever it may be, should be taken into account.

[00:20:32] Speaker 02:
Now, that's the question, which is we've already said in the context of 285 attorney's fees, when the Supreme Court said you have to take in the totality of the circumstances, we said we're going to look at both sides' behavior or relative misbehavior before we figure out whether to assess attorney's fees

[00:20:53] Speaker 02:
against the losing party.

[00:20:55] Speaker 02:
And the question is whether to port that idea over into the context of 284 enhanced damages.

[00:21:03] Speaker 02:
And as you point out, enhanced damages is something about trying to figure out the degree of culpability of the defendant's conduct.

[00:21:14] Speaker 02:
And so when you look through the Reed v. Portek factors, they all seem defendant-centric in terms of their actions.

[00:21:24] Speaker 02:
Now, they also include defendant litigation misconduct.

[00:21:28] Speaker 02:
So that might start to introduce the possibility that we should consider everybody's litigation misconduct, but at the same time,

[00:21:38] Speaker 02:
Maybe there's something different about 284 because 284 is at bottom about whether somebody is subjectively acting like a pirate and copying someone else's patented technology.

[00:21:58] Speaker 04:
Right, so I agree with that.

[00:21:59] Speaker 04:
I also need to emphasize that the trial judge did take into account

[00:22:05] Speaker 04:
pro batters alleged misconduct because she said that she addressed it previously and that it would be unfit.

[00:22:18] Speaker 00:
Are you saying that you're reading her statement as being something like, well, I took that into account when I said I wouldn't award any attorney fees.

[00:22:28] Speaker 00:
I'm not going to also reduce the amount of enhancement based on that.

[00:22:32] Speaker 00:
Is that what you're suggesting?

[00:22:33] Speaker 04:
Yes, that's exactly what she said.

[00:22:35] Speaker 03:
No, it's not exactly what she said.

[00:22:37] Speaker 03:
She said, I'm not going to consider it because I've already taken it into account.

[00:22:42] Speaker 03:
Whereas these cases say the fact that you sanction somebody is not a reason for not taking it into account in the attorney's fees context.

[00:22:53] Speaker 04:
But I think she did take it into account in this context by noting that she had already excluded the right to attorney's fees under 285.

[00:23:01] Speaker 04:
And so in her judgment and in her discretion, she decided not to count it twice.

[00:23:06] Speaker 03:
But that's exactly the argument that's rejected in these cases.

[00:23:12] Speaker 04:
Well, again, this is an issue committed to the sound discretion of the trial judge.

[00:23:16] Speaker 04:
Not if she makes a legal error.

[00:23:18] Speaker 04:
I respectfully suggest it's not a legal error for her to take it up and to discount it because she had dealt with it previously, particularly with excluding attorney's fees.

[00:23:31] Speaker 00:
Do you know whether the read factors are directed or any of them are directed to the plaintiff's behavior?

[00:23:37] Speaker 04:
I don't think they are.

[00:23:39] Speaker 00:
Do you know whether the read factors are

[00:23:40] Speaker 00:
required and mandatory to be considered?

[00:23:43] Speaker 04:
I don't think they're mandatory, but they're the guide.

[00:23:46] Speaker 04:
And that's what she followed and applied here.

[00:23:49] Speaker 04:
And that's what she used to find deliberate copying, deliberate actions within the court to trick the trial judge, and no defense whatsoever for 12-plus years of infringement.

[00:24:05] Speaker 04:
On the second issue, the notion that

[00:24:08] Speaker 04:
During that pretrial conference, there was an order or ruling or decision which barred probata from seeking damages is just plain false.

[00:24:19] Speaker 04:
There were difficult decisions.

[00:24:20] Speaker 03:
You keep saying that it's false, and yet in her March 20th order, she refers to those prior statements at the pretrial conference as rulings.

[00:24:32] Speaker 03:
So it seems to me that you're making an argument which isn't justified by the record.

[00:24:38] Speaker 03:
recognized that she'd made rulings.

[00:24:40] Speaker 03:
She was changing her mind, but she did make rulings earlier.

[00:24:44] Speaker 04:
She was looking at whether or not there was a discovery violation.

[00:24:49] Speaker 03:
She made a big deal out of there weren't any prior rulings, but the judge herself said there were prior rulings.

[00:24:55] Speaker 04:
Judge, there's a difference between noting that there's a discovery violation and then going to the ultimate conclusion and barring somebody because of that

[00:25:04] Speaker 04:
discovery violation.

[00:25:06] Speaker 04:
She never got to that final spot of barring damages.

[00:25:10] Speaker 04:
She just simply did not.

[00:25:12] Speaker 04:
There was no order, there was no ruling, and we know that because of what happened afterwards.

[00:25:16] Speaker 00:
Can I ask you something?

[00:25:17] Speaker 00:
If the only thing on the record were the statements that she made during that telephonic conference, it would be pretty safe to say that she made a ruling, right?

[00:25:30] Speaker 00:
I mean, there is, I think the judge is entitled to

[00:25:34] Speaker 00:
change their mind, and a district court judge can revisit something the next day or a week later, there is nothing wrong with that.

[00:25:45] Speaker 00:
So I don't know why you're fighting this hypothetical on that.

[00:25:50] Speaker 00:
She did.

[00:25:50] Speaker 00:
There's some pretty strong language.

[00:25:51] Speaker 00:
I realize there was some back and forth.

[00:25:53] Speaker 00:
But there was very strong language.

[00:25:55] Speaker 00:
It looks like you're going to be stuck with an injunction.

[00:25:57] Speaker 00:
It seems like there's a waiver.

[00:25:59] Speaker 00:
There is waiver.

[00:26:01] Speaker 00:
There was some strong language.

[00:26:02] Speaker 00:
And if that was the only thing in the record, I might think there was a ruling.

[00:26:05] Speaker 00:
So I don't know why you're afraid of that.

[00:26:07] Speaker 04:
How it ended, Your Honor.

[00:26:09] Speaker 00:
It says... Because of the things that happened later?

[00:26:11] Speaker 04:
In the end of that discussion, at appendix 972, she says, and I know you're new to the case.

[00:26:18] Speaker 04:
Yes, it was my first day.

[00:26:20] Speaker 04:
Perhaps somebody else might have a better answer, but I haven't heard a good one yet.

[00:26:24] Speaker 04:
All right, is there anything else?

[00:26:25] Speaker 04:
So she is not

[00:26:27] Speaker 04:
disposing of the question, she's open to hearing more, particularly because I was new to the case.

[00:26:34] Speaker 00:
Don't you think your stronger arguments might be, the next day, she issued a new file, another paper, and she issued an order in which she dispositively resolved some of the outstanding questions, and damages wasn't on there, and then a week later, when trials started, she didn't stop you from presenting evidence on damages?

[00:26:51] Speaker 00:
That seems a lot stronger of an argument to me.

[00:26:54] Speaker 04:
I put it all together without skipping number one, but Your Honor is absolutely correct that the history of this shows that if she barred, she changed her mind.

[00:27:04] Speaker 04:
I don't think there's a ruling, but we could disagree on that.

[00:27:07] Speaker 04:
But there's no doubt that when the case started, all issues were on the table.

[00:27:13] Speaker 04:
We were going to dispose of this bar issue or not post

[00:27:19] Speaker 04:
trial and in post trial briefing.

[00:27:21] Speaker 04:
And that's in fact what she did.

[00:27:23] Speaker 04:
Um, everybody knew and including sports suited, they put on evidence from Mr. Green about how he did not knowingly infringe a valid patent.

[00:27:34] Speaker 04:
And he went through his story with respect to why that was purportedly true.

[00:27:39] Speaker 04:
And she rejected it based on his credibility.

[00:27:43] Speaker 04:
And so it's not that they didn't have a chance to put on an enhancement case.

[00:27:47] Speaker 04:
They did.

[00:27:48] Speaker 04:
It was rejected on credibility basis.

[00:27:51] Speaker 04:
What they're really asking for is a second chance to go back and try that question again based upon evidence that they had or could have presented at the time.

[00:28:02] Speaker 04:
And so for all those reasons, Your Honor, I think you should affirm, and this case should be disposed of.

[00:28:08] Speaker 04:
Thank you.

[00:28:13] Speaker 03:
Okay, Mr. Roberts, you have two minutes.

[00:28:17] Speaker 01:
Your Honor, as I realize time is limited here, I'd like to just make two quick points.

[00:28:21] Speaker 01:
One to some of the discussion with Judge Stahl and some to the discussion with Judge Shen.

[00:28:26] Speaker 01:
First, a quick look at the appendix.

[00:28:28] Speaker 01:
I did not find it, but the motion that was here is ECF 487, the motion to adhere after trial.

[00:28:36] Speaker 01:
And then additionally, some of your questions are on point that it's sort of muddled to try to figure out what the first trial included.

[00:28:45] Speaker 01:
And the main point is that simply put, a sports shooter was not putting on a full-throated defense to this.

[00:28:51] Speaker 01:
I think one singular question was asked before sitting down, not a story, nothing like this.

[00:28:57] Speaker 01:
I believe four total lines of transcript went to this.

[00:29:01] Speaker 01:
to this issue.

[00:29:03] Speaker 00:
Can I ask you a different question going to the, I apologize for interrupting while you're trying to say this, but the enhanced damages question.

[00:29:12] Speaker 00:
What is your argument there with respect to why the court erred in not considering the plaintiff's

[00:29:22] Speaker 01:
I'm sorry, and not considering the plaintiff's misconduct prior to, that it had sort of addressed this issue already by holding a second trial.

[00:29:33] Speaker 01:
I think that as a matter of equity, all things matter there.

[00:29:39] Speaker 00:
That's your reason for why the district court erred legally by not considering the plaintiff's misconduct and determining enhancement of damages for wealthful infringement.

[00:29:49] Speaker 01:
I'm sorry I misunderstood your question.

[00:29:52] Speaker 01:
The reasoning there is that she thought she had remedied it by opening the second trial.

[00:29:57] Speaker 01:
Why is it that you would have to consider it?

[00:30:00] Speaker 01:
Consider the plaintiff's misconduct.

[00:30:02] Speaker 01:
Because it's a matter of equity and to do equity.

[00:30:05] Speaker 00:
What is your law that says it's a matter of equity?

[00:30:08] Speaker 01:
And where is that explained in your brief?

[00:30:10] Speaker 01:
Just as enhancing damages is my understanding that it's an equitable remedy based off of the party's misconduct, not just the friendship.

[00:30:18] Speaker 00:
Do you have any cases that say that we should be looking for purposes of enhanced damages for wolf infringement by the defendant, that we should be looking at the plaintiff's misconduct?

[00:30:28] Speaker 01:
No, not often.

[00:30:29] Speaker 00:
Do you have any cases that say that enhancement is an equitable remedy?

[00:30:34] Speaker 01:
No, a side off the top of my head.

[00:30:36] Speaker 01:
I apologize.

[00:30:37] Speaker 02:
As I recall, the Supreme Court in Halo described 285 attorney's fees as compensatory in nature for unnecessary litigation.

[00:30:48] Speaker 02:
But for 284 enhanced damages, it's something punitive.

[00:30:53] Speaker 02:
punitive directed at egregious behavior by the defendant, by the infringer.

[00:30:59] Speaker 02:
And so what I'm wondering is, with that kind of a distinction between attorney's fees and enhanced damages, maybe we don't necessarily look at everybody's behavior in the context of trying to figure out the degree of culpability of the infringer.

[00:31:20] Speaker 01:
And to some degree, that would be true.

[00:31:23] Speaker 01:
It's really trying to punish a bad actor, and you're correct about that.

[00:31:27] Speaker 01:
But if I could just answer your other question about the citation error.

[00:31:32] Speaker 01:
I didn't get to the bottom of that, but I wanted to say the apologies if something wasn't cited properly.

[00:31:39] Speaker 01:
But I will say that the point there is that if you're not reasonably putting somebody on notice that you're infringing a patent,

[00:31:45] Speaker 01:
then it cannot be a notice letter.

[00:31:47] Speaker 01:
You can't just put somebody on notice that a patent exists.

[00:31:50] Speaker 02:
Well, the quote I've found from Amstead is, it is well settled that a potential infringer having actual notice of another's patent rights has an affirmative duty of due care.

[00:32:01] Speaker 02:
That affirmative duty will normally entail the obtaining of competent legal advice before engaging in any potential infringing activity or continuing such activity.

[00:32:11] Speaker 02:
Your quote from Amstead says,

[00:32:14] Speaker 02:
If you don't actually allege infringement, it's not a notice letter for purposes of willful infringement.

[00:32:21] Speaker 02:
Now, again, I don't know where you got this quote from that opinion, but that's the quote you put into your blue brief.

[00:32:27] Speaker 01:
Yes, sir.

[00:32:28] Speaker 01:
And the only point we're trying to make on this particular issue is that if you're not reasonably on notice that you're infringing anything, then... I made my point.

[00:32:37] Speaker 01:
Yes.

[00:32:38] Speaker 01:
Thank you, John.

[00:32:40] Speaker 01:
Okay.

[00:32:40] Speaker 01:
Thank you both, counsel.

[00:32:41] Speaker 01:
The case is submitted.