[00:00:08] Speaker 01:
Bill Ramey for the appellant, Trexel Technologies.

[00:00:14] Speaker 01:
Today we're here to ask the court to reverse a section 285 award in two cases, the Sprint case and the Verizon case will refer to this.

[00:00:23] Speaker 01:
And we allege that the district court abused its discretion by making a clear error in judgment and basing its decision on the relevant law.

[00:00:32] Speaker 01:
And the relevant law we're talking about

[00:00:34] Speaker 01:
is the effect of a magistrate's order and a magistrate's report.

[00:00:38] Speaker 03:
What difference does it make whether the order was final or not?

[00:00:41] Speaker 03:
It's the strength of your arguments.

[00:00:43] Speaker 03:
I mean, you could base an exceptionality finding on the fact that you filed a frivolous complaint before anybody even made any determinations what claim scope was and things like that, right?

[00:00:54] Speaker 03:
No, Your Honor.

[00:00:54] Speaker 03:
I think that guts a 28 USC 636.

[00:00:57] Speaker 03:
Are you saying that if somebody files a frivolous complaint that

[00:01:03] Speaker 03:
in the court that you have to wait until you get some judicial final ruling on whether there's merit or not before it's adjudged to be exceptional?

[00:01:15] Speaker 03:
No, your honor, I think this is the strength of your position, right?

[00:01:17] Speaker 03:
Yes, your honor.

[00:01:18] Speaker 03:
I think this court, sorry.

[00:01:19] Speaker 03:
So if the strength of your position is frivolous from the outset, what matters if the magistrate's the one that said it's frivolous, the district court's the one that said it's frivolous, or we're the ones that said it's frivolous?

[00:01:32] Speaker 01:
I refer back to 28 USC 636 B1 and Fifth Circuit law, which we would look back to

[00:01:38] Speaker 01:
on this issue that a magistrate ruling takes no right away from the parties until it's the best judgment point.

[00:01:44] Speaker 04:
That doesn't answer my question.

[00:01:47] Speaker 04:
That the magistrate ruling isn't relevant here.

[00:01:50] Speaker 04:
It's the strength of the position.

[00:01:52] Speaker 04:
We don't need a final judgment by the district court.

[00:01:57] Speaker 01:
I would agree that the totality of the circumstances playing into a section 285 result.

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And all that we were looking to do was to get a ruling from the district court on those claim construction issues.

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I refer back to the claim construction issues.

[00:02:11] Speaker 04:
I thought that was gone.

[00:02:12] Speaker 04:
I thought you had exceeded your time frame to file objections on claim constructions.

[00:02:18] Speaker 04:
Am I missing something?

[00:02:19] Speaker 04:
Am I confused?

[00:02:20] Speaker 04:
I thought we were dealing with infringement now, but that the claim constructions have given.

[00:02:26] Speaker 01:
Yes, Your Honor, that's a good point.

[00:02:28] Speaker 01:
I'm glad you brought it up.

[00:02:29] Speaker 01:
So when we're talking about claim construction objections, it's right.

[00:02:32] Speaker 01:
Our claim construction objections were filed outside of the 14 days to make those objections.

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And so when we did file them late, we had filed other orders that had been ordered by the magistrate judge, and we had timely objected.

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In consideration, we went ahead and lodged objections to the claim construction.

[00:02:50] Speaker 02:
Do you at least agree that the exceptional finding is based on more than just the magistrate judge's order?

[00:02:57] Speaker 02:
There's other things identified as well to support up that sort of finding, correct?

[00:03:03] Speaker 01:
We think every exceptionality finding was based on what Judge Schrader said, or Judge Payne's other orders and opinions constantly

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re-urgent positions.

[00:03:13] Speaker 01:
We were trying to get a ruling on what was essentially going back to what Judge Payne said for his exception.

[00:03:19] Speaker 02:
I don't think I got a yes or no answer to my question.

[00:03:21] Speaker 02:
Do you agree that there's more than just the magistrate order to support the finding under 285?

[00:03:28] Speaker 01:
I do not.

[00:03:28] Speaker 01:
I think that it's all based on the magistrate's orders, a variety of orders.

[00:03:32] Speaker 01:
And that's why, as one of our issues at the start of the case, we pointed out, is it an abuse of discretion?

[00:03:38] Speaker 01:
Is it improper for an applicant to rely on multiple objections to magistrate orders?

[00:03:43] Speaker 01:
28 USC 636B1A and B are very clear.

[00:03:49] Speaker 01:
Each one, if you file objections, and there were, there's no dispute, we had objections to every order except for the markman order.

[00:03:56] Speaker 01:
The markman order,

[00:03:57] Speaker 04:
We assumed that based on- I'm very confused.

[00:04:01] Speaker 04:
Are you saying, why don't we talk about orders as opposed to the magistrate judge's findings?

[00:04:08] Speaker 04:
I don't understand.

[00:04:09] Speaker 04:
What are you complaining that the district court relied on here, precisely?

[00:04:14] Speaker 01:
The disreport relied on, in the final order that it issued, he relied on the May 15, 2019 issue of ruling on the report and recommendation from Judge Payne.

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And then there were timely objections to that report and recommendation.

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That was what it said.

[00:04:31] Speaker 04:
So are you saying that everything in Judge Payne's report no one could not be relied on?

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for this purpose because it was in a report that wasn't finalized at the time?

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I'm not clear.

[00:04:42] Speaker 01:
No, Your Honor.

[00:04:43] Speaker 01:
In fact, Judge Payne came out.

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And what he said was that he based his exceptionality finding on what he said that it's reasonable that Apple could have assumed that until I denied their request to serve supplemental infringement contentions alleging infringement under the doctoral equivalence, it's reasonable for them to have assumed that they might still have a claim.

[00:05:04] Speaker 01:
And when he issued that ruling,

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on July 22, 2019.

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That's when he said the case became unreasonable.

[00:05:15] Speaker 02:
Why didn't you agree to a stay?

[00:05:16] Speaker 02:
I thought at one point there was a stay put on the table and maybe a proposed stipulation put on the table.

[00:05:22] Speaker 02:
Because it sounds like you were very keyed in on waiting for a final, I guess a final order by the district court.

[00:05:29] Speaker 02:
Why didn't you agree to just stay some of these things or have some type of stipulation that I thought was proposed?

[00:05:34] Speaker 02:
Why did that never come to fruition?

[00:05:35] Speaker 01:
That's a good point, Your Honor, so I'd like to, if I could get in that briefly.

[00:05:38] Speaker 01:
We, in fact, you'll see from our, from, our, from Pellinant's conduct, we agreed to a stay in the T-Mobile case.

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We were readily advancing a stay with all the defendants.

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The only one that would agree was T-Mobile.

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The Verizon and Sprint case wouldn't agree to a stay, and so being in the Eastern District of Texas with the not agreed stay, we didn't think it was worth

[00:05:58] Speaker 01:
going forward.

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When it comes to the stipulation, this is in June of 2019, June 13th through 15th are the emails in the documents there, which the Ed appendix

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1255 through 1256, when we were talking about the stipulation, we advanced the fact that we would gladly stay the case.

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And they said, if and when we get a ruling from the district court on the Nokia case, we agree to dismiss your case.

[00:06:27] Speaker 01:
And we said, we would definitely reconsider our position.

[00:06:30] Speaker 01:
Everyone was waiting for that final ruling from the court.

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You notice June of 2019 is after we had the report and recommendation.

[00:06:38] Speaker 01:
from Judge Payne.

[00:06:39] Speaker 01:
We were all waiting for Judge Schrader's final decision on the objections, because I was released, the appellant was relying on 28 USC 636 1BB, I guess, that we needed a final ruling from the district court.

[00:06:59] Speaker 01:
Now, if I could basically just go through a few pieces of things

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The US Supreme Court has said that a magistrate judge has no authority, absent consent, to take away any rights or make a binding disposition.

[00:07:15] Speaker 01:
And then the Fifth Circuit follows that up in US v. Cooper 135, Fed 3rd, 1960.

[00:07:20] Speaker 01:
The report and recommendation of a magistrate judge takes away no right of a party.

[00:07:28] Speaker 04:
I guess I'm still unclear.

[00:07:30] Speaker 04:
And this goes back to Judge Hughes' question at the outset.

[00:07:34] Speaker 04:
Who's saying that we're not going to affirm or reject what the district court did here on exceptionality based on the finality of what the magistrate judge was going to look at the record of what the parties did and what they didn't do with respect to this case?

[00:07:52] Speaker 04:
Some of that may have been in some of that.

[00:07:55] Speaker 04:
information that the history of this case may have been articulated by the magistrate judge.

[00:08:01] Speaker 04:
It may be in his report.

[00:08:02] Speaker 04:
But that doesn't mean that all of this stuff is off limits because it was in his report.

[00:08:08] Speaker 03:
Are you saying because you had a right to seek review in the magistrate judge's ruling and recommendation that exercising that right can never be a judge to be frivolous or exceptional?

[00:08:22] Speaker 01:
No, Your Honor, I don't think that's the case at all.

[00:08:24] Speaker 03:
I think, in fact, what we tried to show in our briefing was- Well, wait a minute, because that seems to be the thrust of your argument when you're talking about the finality.

[00:08:32] Speaker 03:
If you agree that even though you have a legal right to seek review of a magistrate's ruling, it can still be, while under exceptional conduct, to do so, that's the basis for this case.

[00:08:45] Speaker 03:
The district court found and the magistrate found

[00:08:48] Speaker 03:
This was exceptional because you continued to push this after it was clear you weren't going to win.

[00:08:56] Speaker 01:
Your Honor, what we tried to do was we were waiting to get the final ruling.

[00:09:00] Speaker 01:
I think that this... No, no, no, but that's exactly it.

[00:09:03] Speaker 03:
That's what I said, just said.

[00:09:06] Speaker 03:
Can it be exceptional even if you have a right to get a final ruling and you agreed it could?

[00:09:12] Speaker 03:
And the district court, I understand you think that it wasn't exceptional for you to get a final ruling.

[00:09:17] Speaker 03:
The district court disagreed.

[00:09:19] Speaker 03:
That's not legal error, is it?

[00:09:22] Speaker 01:
It is because we think it is legal error because of 28 USC 636.

[00:09:31] Speaker 03:
I do not understand your responses to my two questions.

[00:09:34] Speaker 03:
You agreed that despite the fact that it wasn't final and that you were allowed to seek review, that very act of seeking review, which was your legal right, can still form the basis for an exceptional conduct finding.

[00:09:46] Speaker 03:
So I refer to this court's decision in the... Can you just answer that question again?

[00:09:51] Speaker 01:
Do you agree with that?

[00:09:52] Speaker 01:
Under certain facts.

[00:09:54] Speaker 01:
Yes, John, I think under certain facts.

[00:09:55] Speaker 01:
If, for instance, the party took no position, took no position, no change position based on that magistrate judge's opinion.

[00:10:05] Speaker 01:
Where here, we did, if you go to the appellate record,

[00:10:09] Speaker 01:
For the Sprint case at appendix 1290 through 1296, those are the positions that we changed completely.

[00:10:16] Speaker 03:
But now you're just arguing whether the facts of this case warrant an exceptional conduct finding, and the district court found they do.

[00:10:23] Speaker 03:
And we have an abuse of discretion review on that.

[00:10:25] Speaker 03:
We're not going to redo those, were you?

[00:10:27] Speaker 03:
And we're not asking you to redo them.

[00:10:29] Speaker 01:
In fact, that was very clear in the reply brief that we're not asking you.

[00:10:31] Speaker 01:
What are you asking us to hold?

[00:10:33] Speaker 01:
I'm asking you to hold that it was an abuse of discretion.

[00:10:36] Speaker 03:
based on the circumstances of this case.

[00:10:38] Speaker 03:
Well, that's fast.

[00:10:40] Speaker 03:
What legal ruling would you say it was an abuse of discretion as a matter of law for the district court to pass?

[00:10:46] Speaker 01:
OK, so there's two.

[00:10:48] Speaker 01:
The district court based its exceptionality finding on the report and recommendation of Judge Payne.

[00:10:53] Speaker 01:
It's clear in the order that he says that.

[00:10:54] Speaker 01:
Well, he disagreed that he could do that.

[00:10:56] Speaker 01:
I said that it could be the case that a court could find that, like this court found in the Lumen case, when the party agreed that infringement was not tenable.

[00:11:07] Speaker 01:
In this case, we contest that infringement wasn't tenable.

[00:11:10] Speaker 01:
That's why we filed the objections.

[00:11:12] Speaker 01:
That's why we did the objections to the report.

[00:11:14] Speaker 04:
Before your time runs out, can I take you back to the discussion we were having a few minutes ago about the stay?

[00:11:19] Speaker 04:
I thought I understood you to be suggesting that you wanted a stay, that the other side was refusing, so there's no way you could get a stay.

[00:11:28] Speaker 04:
I didn't see that in the briefing.

[00:11:29] Speaker 04:
I thought the briefing position, page 21 of your brief, footnote 70, that you were just suggesting that both sides could have filed for a stay.

[00:11:44] Speaker 04:
Is that, did I misunderstand what you were saying?

[00:11:46] Speaker 01:
I think that's 100% what the brief said.

[00:11:48] Speaker 01:
There's nothing in the record about us having requested that states to the point that we were making the briefing was addressing the, Pali's point, that Trixall could have moved for a stay.

[00:11:58] Speaker 01:
In the Court of Equity, either side could have moved for a stay.

[00:12:01] Speaker 01:
It was in discussion between the parties.

[00:12:03] Speaker 01:
It just wasn't ever moved on because no agreement was reached and there's nothing.

[00:12:06] Speaker 01:
in the record on that fact.

[00:12:08] Speaker 04:
OK, so it wasn't the reason you didn't get a stay.

[00:12:10] Speaker 04:
It wasn't that you wanted a stay, and the other side was objecting, so there was no way you could get a stay.

[00:12:15] Speaker 04:
You never asked for it.

[00:12:16] Speaker 04:
You could have asked for a stay.

[00:12:17] Speaker 04:
You never did.

[00:12:18] Speaker 01:
We never asked the court for a stay.

[00:12:19] Speaker 01:
We did discuss a stay between the parties, and we never reached agreement on going forward to the point like we did in the T-Mobile case, because we did stay there.

[00:12:27] Speaker 04:
But you could have asked for a stay, right?

[00:12:29] Speaker 04:
Did anything preclude you from asking for a stay?

[00:12:31] Speaker 01:
No, nothing precluded us from asking for a stay, Your Honor.

[00:12:34] Speaker 01:
And I had reserved three minutes.

[00:12:35] Speaker 01:
I saw it start at 15.

[00:12:37] Speaker 01:
So if I could.

[00:12:42] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:12:43] Speaker 00:
My name is Brian Schmalzbach, and I'll be speaking for both Sprint and Verizon today.

[00:12:47] Speaker 00:
Before getting into the factual findings by these experienced patent judges that had five years of experience with this case, I do want to address the stay point briefly.

[00:12:57] Speaker 00:
My friend on the other side said that Sprint and Verizon wouldn't agree to a stay, and that's incorrect.

[00:13:02] Speaker 00:
Verizon did clearly request a stay after the Nokia report and recommendation came out.

[00:13:08] Speaker 00:
My friend raised this in the reply brief, and so this isn't in the appendix.

[00:13:12] Speaker 00:
But at docket 476-2, exhibit 26, which is an exhibit to Verizon's fee motion, there's correspondence clearly laying out Verizon's request for a stay.

[00:13:22] Speaker 02:
Was a request made to the district court, or just a request among the parties?

[00:13:26] Speaker 02:
It was just a discussion among the parties?

[00:13:27] Speaker 00:
This one was a discussion among the parties.

[00:13:29] Speaker 00:
As you'll recognize, Traxell never requested the district court for a stay.

[00:13:33] Speaker 00:
And we certainly would have agreed to that.

[00:13:35] Speaker 00:
That's why the parties requested it.

[00:13:38] Speaker 00:
But turning to the factual findings that underlie the exceptional finding in this case, there were three.

[00:13:44] Speaker 00:
One, that Traxell litigated an objectively baseless case.

[00:13:48] Speaker 00:
Two, that Traxell litigated this case in an unjustifiable manner.

[00:13:52] Speaker 00:
And three, that Traxell ignored the red flags along the way.

[00:13:56] Speaker 00:
There's no error in those findings, let alone the clear error needed to reverse.

[00:14:01] Speaker 00:
Nor is there any error or clear error in the district court's determination that those findings made this case exceptional under Section 285.

[00:14:08] Speaker 00:
I'd like to highlight just a few points that make this case stand out.

[00:14:12] Speaker 00:
First is the objective baselessness of Traxel's infringement theories.

[00:14:16] Speaker 00:
What makes this case unusual is that Traxel doesn't dispute the reasonableness of its theories.

[00:14:21] Speaker 00:
They admit that on page one of the reply brief.

[00:14:24] Speaker 00:
And under octane fitness, as you pointed out, Judge Hughes, that objective baselessness alone can suffice to make a case exceptional.

[00:14:31] Speaker 00:
But what makes this a particularly easy 285 case is that Trexel was on such clear notice of the objective facelessness.

[00:14:39] Speaker 00:
And that notice did come from that parallel Nokia case, where the same magistrate judge, addressing the same patents, and what the district court called a materially equivalent infringement theory, recommended summary judgment.

[00:14:51] Speaker 02:
To any reasonable plain, if that should have been a big red flag, that would come to... There were also letters that were sent also, right, by both Verizon and Sprint to...

[00:14:59] Speaker 00:
That's right, Judge Cunningham.

[00:15:00] Speaker 00:
Both Spring and Bryson sent those letters explaining why that Nokia recommendation mapped onto this case directly.

[00:15:06] Speaker 00:
And that was a factual finding that the district court made, that these are materially equivalent theories, and it should have given them very clear notice that this case would fail for the same reason.

[00:15:17] Speaker 00:
My friend on the other side also said that Trexel modified its infringement theories in response to that Nokia recommendation.

[00:15:24] Speaker 00:
But again, the district court found otherwise.

[00:15:26] Speaker 00:
The district court found that there was no explanation actually linking the accused elements to those limitations as construed in this case, to which Trexel filed no timely objection.

[00:15:38] Speaker 00:
And as this court held when this case was up on appeal before, all that Traxell offered to link those accused elements was alphabet soup and an army of citation footnotes crouching in a field of jargon.

[00:15:50] Speaker 00:
So between this court's previous opinion and certainly with the district court's factual findings, the finding that this case is exceptional is very well supported.

[00:15:58] Speaker 04:
What about the district court's

[00:16:01] Speaker 04:
suggestion or a statement at page Appendix 36, where he says, Traxell should have known its patent infringement theories weren't supported when the court issued a recording recommendation on summary judgment in Huawei.

[00:16:15] Speaker 04:
Can that not be read in a way that would kind of raise one's eyebrows?

[00:16:20] Speaker 04:
I mean, if it were just not the content of the magistrate's report and recommendations, but just there was a decision by the magistrate judge against you, that in and of itself should have been creates an exceptional case thing.

[00:16:37] Speaker 04:
That would be problematic, would it not?

[00:16:39] Speaker 00:
I think it would be problematic if that sentence said Trachsel's infringement theories were objectively baseless because of the Nokia theory.

[00:16:48] Speaker 00:
But that's not what it says.

[00:16:50] Speaker 00:
What it said, it's about notice.

[00:16:51] Speaker 00:
Trachsel knew or should have known at that point.

[00:16:53] Speaker 00:
So even though objective baselessness alone can suffice to make it exceptional, here the judge is saying that not only do you have that objective baselessness, but you have it clear as day in front of your face that you should have known it was objectively baseless.

[00:17:06] Speaker 00:
And at that point, you shouldn't have continued to run up the cost of litigation.

[00:17:10] Speaker 00:
You should have agreed to a say or proposed one yourself.

[00:17:14] Speaker 00:
I would like to address what I understood from the briefs to be Traxell's legal argument, that the district court was forbidden to even consider a report and recommendation as part of the 285 totality of the circumstances analysis.

[00:17:27] Speaker 00:
I'm not aware that any court has ever said that.

[00:17:30] Speaker 00:
And there's a good reason why a court wouldn't say that.

[00:17:33] Speaker 00:
There's no final order from a district judge needed, because there's no order needed from any judge, period.

[00:17:39] Speaker 00:
As this court held in the Blackbird Tech case, there's no duty for a court to advise a litigant of the weakness of its litigating position.

[00:17:47] Speaker 00:
Rather, every litigant has its own independent duty to make sure that all of its claims have a reasonable basis in fact and law.

[00:17:56] Speaker 00:
And last, I'd like to point out that the district court, although it would have been well within its rights at that point to declare this case exceptional, the district court gave Traxell more chances to litigate this case in a responsible manner.

[00:18:09] Speaker 02:
Now the opposing counsel argued that new theories were pursued.

[00:18:12] Speaker 02:
And I think you said that that's not the case.

[00:18:14] Speaker 02:
Can you just give me a little bit more explaining why there weren't new theories that were pursued in terms of the infringement after some of these things happened to show that there was some objective racelessness?

[00:18:24] Speaker 00:
Yes.

[00:18:25] Speaker 00:
Trexel certainly raised the idea of alternative theories.

[00:18:29] Speaker 00:
But what the district court found as a matter of its factual findings is that it never supported those alternative theories.

[00:18:36] Speaker 00:
And so Trexel said, well, we'll try to meet the

[00:18:39] Speaker 00:
a single computer limitation with these various items that are in a laundry list in their brief.

[00:18:46] Speaker 00:
But what the district found, and what this court said in the first opinion, was that those aren't connected.

[00:18:51] Speaker 00:
There's no connection between those accused elements and all of the requirements for each claim and each claim limitation.

[00:18:59] Speaker 00:
And so it's not enough to say, well, we'll try to revise our theories.

[00:19:02] Speaker 00:
You have to actually go in an objectively reasonable manner and connect the dots between the accused element and the limitation.

[00:19:11] Speaker 00:
And so it's not that the district court declared this case exceptional after the case was objectively baseless, or even after Traxell had such clear notice that his case was objectively baseless.

[00:19:22] Speaker 00:
But instead, the district court gave Traxell another chance to litigate the case responsibly, which it didn't do because Traxell kept filing motions that sought to relitigate issues that had already been resolved against it.

[00:19:33] Speaker 00:
And the district court recited several examples of this.

[00:19:36] Speaker 00:
One I'll just mention is that Traxell filed a motion for leave to assert a purportedly corrected version of a claim that had already been held invalid as indefinite on multiple grounds.

[00:19:47] Speaker 00:
And Traxell's motion for leave didn't address that fundamental alternative, independent ground.

[00:19:53] Speaker 00:
And so that was just another example.

[00:19:56] Speaker 04:
This case was exceptional, but it was based on a very limited amount of time.

[00:20:01] Speaker 04:
Were you pursuing exceptionality and a broader space into the district court cabinet to a more limited space?

[00:20:07] Speaker 00:
Yes, Your Honor.

[00:20:08] Speaker 00:
We pursued, we requested a finding that the case was exceptional.

[00:20:12] Speaker 00:
And so we requested our fees when we sent those letters that I referenced, the letters explaining why the Nokia recommendation meant that this case should be staged, should not proceed to run out the litigation clause.

[00:20:25] Speaker 04:
So that was the time period that the district court reached?

[00:20:28] Speaker 04:
No, Your Honor.

[00:20:29] Speaker 00:
So the district court cabined the time and said only after that meritless motions practice, after the Nokia recommendation came out, would it award fees for that period.

[00:20:40] Speaker 00:
And so the district court was very tailored in what it awarded.

[00:20:44] Speaker 00:
It could have awarded more, in our view, but it just shows how careful an application of Section 285 this award was.

[00:20:53] Speaker 00:
So if the court has no further questions, we would ask you to affirm the fee awards.

[00:20:58] Speaker 00:
Thank you.

[00:20:59] Speaker 01:
If it pleases the court briefly, we're aware of no other decision where this court has affirmed a fee award based on magistrate's ruling, except for the Lumen case.

[00:21:11] Speaker 04:
The Lumen case is because the- But there are fee award cases where there's been no ruling at all.

[00:21:16] Speaker 04:
and no finality to the ultimate merits, right?

[00:21:20] Speaker 04:
There are plenty of those around, right?

[00:21:21] Speaker 01:
Yes, Your Honor.

[00:21:22] Speaker 01:
But in this particular case, because we've got a magistrate ruling, Title 28, Section 636B1 allows us to make objections.

[00:21:30] Speaker 02:
And if you go off the Fifth Circuit precedent, Donaldson versus... But if you do not have appeal that there were no magistrate ruling, like let's say it was just a district court doing it, no magistrate involved, in your opinion then, this is totally fine?

[00:21:44] Speaker 01:
No, Your Honor, then we agree 100%.

[00:21:46] Speaker 01:
If that May 15, 2019 ruling had been a district court ruling, bingo, right there, and that's when everything starts, we would have been on notice.

[00:21:55] Speaker 01:
But because Title 28, USC 636B1 does exist, we're allowed to file objections.

[00:22:02] Speaker 01:
The Fifth Circuit says so.

[00:22:04] Speaker 01:
If we don't like a magistrate's ruling, we're allowed to file objections.

[00:22:07] Speaker 03:
We're always allowed to file objections, but if they're frivolous objections, they're frivolous.

[00:22:13] Speaker 03:
I mean, Judge Payne is not some brand new magistrate.

[00:22:16] Speaker 03:
He's been around since well before I got on this court.

[00:22:19] Speaker 03:
You know that.

[00:22:20] Speaker 03:
If he thinks your case is bad, why isn't that a basis to say your case is bad?

[00:22:26] Speaker 03:
Just because you have the right to challenge that.

[00:22:28] Speaker 01:
Because we based our objections on Fifth Circuit precedent, Federal Circuit precedent, and what we believe to be... I think you're talking about two entirely different things.

[00:22:38] Speaker 03:
Your legal right to seek review doesn't insulate you from an exceptionality finding.

[00:22:46] Speaker 01:
I would disagree with you in this one aspect, Your Honor.

[00:22:49] Speaker 01:
We did, in fact, 100% address Judge Payne's concerns by trying to point out GPS coordinates that were attached to our theory of location determination.

[00:22:59] Speaker 01:
This court already found that that wasn't sufficient.

[00:23:01] Speaker 01:
So that's why we put in the briefing that we're not asking the court to review that again.

[00:23:05] Speaker 02:
Just to clarify on my question.

[00:23:07] Speaker 02:
So if Judge Payne is not involved, it's just Judge Schrader.

[00:23:10] Speaker 02:
You're good with this exception out and fine.

[00:23:12] Speaker 01:
You're like... 100 percent.

[00:23:14] Speaker 01:
We put that in the briefing.

[00:23:15] Speaker 01:
We understand that to be the case.

[00:23:17] Speaker 01:
We were merely relying on 636B that the case of Donaldson v. Ducati, 373 Fifth or 622, says if a party dissatisfied with the magistrate's ruling, may I continue for a couple seconds, may object, thereby compelling

[00:23:34] Speaker 01:
district court to review and that's all we were relying on.

[00:23:37] Speaker 01:
We in fact made everything in our pre-trial or everything subject to the objections.

[00:23:41] Speaker 01:
We understood and the parties and their June correspondents understood that the minute that we got a final ruling from there that would be the wind track sell if the district would affirm that wind track sell would lose its rights as it was due.

[00:23:56] Speaker 04:
Thank you.