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We have a busy schedule of arguments today.

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We have an argument from an appeal from a district court of Colorado from the US Court of Appeal for Veterans Claims.

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And then we have two appeals from the patent trial appeal board of the USPTO

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Before we go any further, I want to welcome our esteemed colleague from the Western District of Texas.

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This is District Court Judge Alan Albright, who is sitting with this court by designation of the Supreme Court.

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And Judge Albright, you honor us with your presence and your collaborations today.

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Thank you very much.

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Okay, let's get going with the first case.

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Crocs Inc.

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vs. Efferenson Inc.

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22-2160.

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Thank you, Your Honor.

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Let's see here.

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Mr. Berkowitz, you've reserved three minutes of your time for rebuttal, correct?

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That's correct, Your Honor.

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Okay.

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Ready when you are.

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Thanks.

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May it please the court, Matt Berkowitz on behalf of the appellants, who I'll colloquially refer to as the dogs for the purposes of this discussion.

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There was a lot of discussion in the briefing about procedure and local rules and whether one party cited something or not.

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I want to address that up front and frame the legal issue for the court.

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There can be no dispute here about dogs' claim.

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Paragraph seven.

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of dogs is counterclaim says the Crocs claimed that the cross light had unique characteristics that its competitors could not offer.

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Is that appendix page 481 or what appendix page are you on?

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That is sorry your honor I don't think I have the appendix handy if I could address that on rebuttal it's it's

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It is absolutely in the counterclaim of paragraph seven.

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As late as June 2016, Crocs's promotional materials touted that Crosslight was unique enough to be patented.

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That's in the counterclaim and for the pleading standards that we operate under in this country.

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But you need more than that, don't you?

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I don't believe so.

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We did have more than that, Your Honor.

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Yeah, okay.

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I think you probably mean more than just that statement that you just made.

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For pleading purposes, I believe that's enough to say that Crocs falsely claimed that Crossley had unique characteristics.

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We went on in various other paragraphs.

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So if we were to stop there, you assert that that's enough to raise a legal theory under the Lanham Act?

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To put crocs on notice of the theory, absolutely, your honor.

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But beyond that, paragraphs 46, 47, 49 all went further.

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They had additional allegations.

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Paragraph 49

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uh... specifically talked about even some of the characteristics that were issued incorporated we didn't have to do this and i think under any pleading standard in the u.s.

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under the federal rules we attached twenty-something exhibits exemplary advertisements showing all of these things

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The district court even acknowledged this.

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So the Land Am Act, the advertising provision, 43A1B, asks whether consumers have been misled by misrepresentations.

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And it goes on about the nature, characteristics, qualities, and geographic origin.

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Would you agree with me that you have to also allege that?

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We talked about characteristics, Your Honor.

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We said nature, quality, and characteristics.

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The word characteristics is directly in our... And those are just the labels, right, of what you have to show.

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You have to actually present factual situations as to the nature of the product that we're talking about and the special characteristics.

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And we did that absolutely in summary judgment.

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It's also in our counterclaim through dozens of exhibits, Your Honor.

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And we're talking about we're parsing pleadings in this case to the level of what the highlighting was in exhibits.

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I'm not aware of any pleading standard in this country, particularly in the 10th Circuit, which again and again emphasizes the liberal pleading standard.

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Well, you said you wanted to address a legal question and to frame the legal, the appeal, right?

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Absolutely.

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Why don't you frame it along these lines?

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Why don't you discuss the two cases that are applicable here, and tell us how you distinguish that, and how they hurt your case.

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This is Baden, and then the other case was the... D. Starr, Your Honor.

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Yes.

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So the issue here, what the district court got wrong, because the district court even acknowledged what our theory was.

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Pages 7 and 12 of the court's order even acknowledged that this was

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an argument about product superiority and inferiority.

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The district court made the mistake, the legal error, is that the district court said this was all okay under Daystar.

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The district court said, as long as you can make claims about your products, including the characteristics of them, and lend credibility to those claims by saying that they are, it's a patented material, maybe that it's scientifically proven even,

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As long as in the district court's view those are claims of authorship, that the falsity is a claim of authorship, you can do that under the Lanham Act and under Daystar.

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Daystar was actually limited to 43A1A.

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Absolutely.

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It was even more limited than that.

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Baden distinguishes that, and here we're talking 43A1B.

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That's correct.

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And that's your point of why it's different than either of those cases.

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Daystar was about the word origin in subsection A. It was really about nothing more than that.

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It was construing the word origin.

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And does origin concern the physical product itself?

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Who actually manufactures it?

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Or does it also include the intellectual origin?

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Who came up with the creative idea?

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And Daystar said that word origin is really just about the product itself and who manufactured it.

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That has no applicability here.

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We're not talking about the word origin in this case.

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The district court believed that Daystar's holding was far broader and concerned anything about authorship.

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and that it immunized what is otherwise specifically prohibited under the Lanham Act, the nature, quality, and characteristics.

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If you could help me out, I don't know all that much about the Lanham Act.

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Why would your client benefit under 43A1B as opposed to a consumer may have been defrauded by the same patent?

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But how does your client assert a 43A1B claim against the other party under the Lanham Act for making that statement?

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So, Your Honor, the Lanham Act is a consumer protection statute, but competitors have standing to bring claims.

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Our client was harmed.

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Our client is a competitor of Crocs, making shoes with, we would submit, effectively the same material.

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One company became a multi-billion dollar enterprise, and the other one did not.

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My understanding also was just in this particular case was summary judgment felt somewhat early and that there's still maybe six months of discovery.

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That discovery in particular, is that right?

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That's correct, Your Honor.

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There's a torture procedural history to this case that I won't get into, but there was a lengthy stay.

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one of our clients had gone bankrupt.

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The case was reopened and pretty shortly after that, really before any of the bulk of the Lanham Act discovery had even taken place, the case was reopened and crops moved for summary judgment.

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So in terms of the summary judgment evidence you put forth, it sounds like

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You put your theory first, fourth, maybe in the counterclaims, and you point us to some paragraphs there.

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And then also I understood there were some interrogatory responses potentially, but maybe no depositions had occurred, and you didn't provide deposition evidence.

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Is that accurate?

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That's correct.

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That's correct, Your Honor.

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I mean, there may have been, I don't recall exactly, a couple depositions that occurred before the summary judgment motion, but the vast majority of them occurred after.

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Did you hit any deposition testimony forth in terms of opposing the summary judgment?

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We did not.

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We hadn't taken any of them at that point.

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And again, having handled a couple trials on this, I assume there are experts in anything.

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I assume there are experts who would come in on your side and say it was patented.

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But the district judge didn't have the benefit of having any expert testimony on either side in coming up with the summary judgment, right?

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That's correct, Your Honor.

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It was six, seven months prior to that happening.

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We submitted a motion for leave to supplement the record, and the district court did not admit it, but we put it in for color.

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both parties experts did surveys finding that consumers understood just the word patented and just the word proprietary, even standing alone outside the context of the ads to refer to product heritage.

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So the evidence wasn't available at the time when you opposed summer judgment, but was available after?

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Is that what you're saying?

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That's correct, Your Honor.

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Neither party had done surveys six months prior to the close of the fact discovery.

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The record was still being developed.

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Now, I think the other side argues about saying, well, why didn't you take

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the 56D procedure.

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Why did you do something with respect to that in light of kind of the state of where discovery was?

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Can you talk to that?

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At that point, Your Honor, we didn't know what the surveys were going to show.

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Frankly, we didn't even know if we were going to do one.

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We had evidence that we cited up and down in our summary judgment opposition

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much of which was without objection from Crocs and not excluded by district court, showing what consumers thought, showing that Crocs intended all along to differentiate their products based on the material.

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My recollection was that the court narrowly focused on what he thought the two cases said and essentially ignored.

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never never talked about it never even talked about it.

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He never addressed this summary judgment order why he was... it existed and here's why I'm ruling or not going to follow it but he basically didn't address it at all.

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Never talked about an ad.

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Even with all of the evidence in front of the court about what patented means to consumers not just any consumers but these consumers that's what the Lanham Act tells us we have to do.

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ignored all of it, never talked about it, instead simply assumed that the word patented meant authorship.

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And there's no dictionary site for that.

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There's nothing.

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Patented is a powerful term.

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There's case law on that.

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There's quite a bit, Your Honor.

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I mean, this court's decision in Zenith, for example, talks about it.

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And here, you rely on the word authorship also, but in part, correct?

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Our position, Your Honor, is that authorship is a false construct in this situation.

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The claims here are about lending credibility to product characters.

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I want you to go back to the question I asked, because I don't want you to sit down without having fully addressed the applicability of Das Star and Bateman.

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Of course not.

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Daystar, again, was just about the term origin in subsection A. Baden Sports was really no different in the sense that the product that was accused of being falsely advertised as innovative, there was no dispute that it actually was innovative.

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The defendant in that case was also a patent infringer.

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The defendant had copied the plaintiff's technology.

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So there was, again, I don't think exclusive and proprietary were terms that were before the court.

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It was just the term innovative.

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And there was no dispute it actually was innovative.

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It was just a matter of who innovated it.

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Here, the advertising's far different.

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The dispute was over who innovated that particular product in the basketballs.

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Who had innovated it.

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And I don't think this court really even needed to address Daystar and only did because the plaintiff had raised it.

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So what about Crox's assertions that they are the inventor and it's innovative, the product is innovative, they're the inventor, they conceived this new material.

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That is not the sole focus of our allegation, Your Honor.

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What they are doing, it's quite different.

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We're not disputing necessarily who did what.

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The idea here is that they use these terms to build credibility for their product claims.

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No different than if they had said, well, the American Podiatry Association tested our products and found they were bacteria resistant, and other competitors weren't.

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or we're the only ones who are allowed to sell this material.

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Even if the material actually is those things, it doesn't matter because it's an endorsement of it.

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It builds credibility.

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Does it matter at all for either side that this is a 10th Circuit case and not a 9th Circuit case?

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Because Baden, the Federal Circuit, limited that pretty heavily to the 9th Circuit.

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It is, Your Honor, but I think even in the Ninth Circuit, we should prevail.

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That was a discussion about the definition of nature, quality, and characteristics, and that's why this court referenced the Cyber Sound case, the Ninth Circuit decision.

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Okay.

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Any other?

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Thank you, Your Honor.

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Yes.

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Well, we'll show you a little time for three minutes.

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Thank you.

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I want to start wherever you would like to start, but in the absence of that, I want to address a couple of things.

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There are two different major issues here.

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One is what

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does every case that

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to not surprise you later that the answer to that is no.

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There's no case that has found that this is actionable, what they are claiming.

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Is a claim to authorship enough to create an action?

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No.

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Under either provision of the Lanham Act, Your Honor.

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That's what Daystar says.

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Daystar, the holding, I admit, of Daystar is about 43A1A.

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But the court in Daystar expressly said

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that there could be a claim under 43A1B.

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But it said that claim under A1B about a product characteristic or quality would have to actually say something false about the characteristic or quality.

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And a statement of authorship being false, it says this in Daystar, is not enough for landmark liability, period, not later.

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And is there such a falsehood here?

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The alleged, the claimed, the pursuit- When your client concedes it does not have a patent.

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That we, yes.

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So that's false.

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Yes.

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Yes.

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Now, yes, that, yes, 100%.

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But the issue is, is that a representation, a falsity, a misrepresentation that is actionable?

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We don't obviously concede proprietary and exclusive.

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In fact, they are, but set that aside for the moment because this issue is what is or isn't actionable.

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So you agreed with me that it's not actionable standing alone.

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A claim to authorship alone is not sufficient.

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Yes.

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But a claim of authorship that's linked to other claims, they go to the nature and characteristics and the quality of the product,

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That has a potential to give rise to a claim, doesn't it?

[00:17:07] Speaker 03:
It does not.

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And I'll tell you why, Your Honor, because you have to state the way the Lanham Act works is under 43A1B, what is actionable is a misrepresentation about a product characteristic or quality or nature of the product.

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in order to then determine that something is actionable under the Lanham Act, you don't identify what representations were made, which is the thrust of the question.

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You identify what is the misrepresentation that is allegedly actionable.

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And this is what the district court found.

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The misrepresentation, the falsity in the complaint in the interrogatory response

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until they amended their interrogatory response the day before the opposition to summary judgment was due.

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The claim of what is false was only the words patented, proprietary, and exclusive.

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There was no other representation identified that was false.

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That's the statement by counsel that there was a representation.

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Is a word false?

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Oh, 100%.

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Well, they're not.

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I mean, you have to assume they're false.

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I agree with that.

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of that one.

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That's a big one.

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I mean, we have a patent marking statute for that reason.

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And so I'm not, and maybe it's just me, I'm not following you at all.

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When you say that, you know, I can put on, start selling stuff clearly for competitive advantage and say it's patented, I don't know why people

[00:18:51] Speaker 04:
There's evidence of that.

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And it's the nature of characteristic quality.

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By this, it's patented.

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This one isn't.

[00:19:00] Speaker 04:
I'm just not following you.

[00:19:03] Speaker 03:
All right.

[00:19:03] Speaker 03:
Let me be both responsive and clear as to what I want to respond to.

[00:19:09] Speaker 03:
I'll take you.

[00:19:10] Speaker 03:
So the issue of what consumers heard is not before this court.

[00:19:16] Speaker 03:
It is not true that there was evidence cited to the district court that was acknowledged to be admissible to the district court.

[00:19:24] Speaker 03:
All of the screenshots were excluded by the court summary judgment order as hearsay and not put in admissible form.

[00:19:31] Speaker 00:
What about the allegations that Crocs has succeeded in reverse engineering the formula for what he dubbed as Crosslight?

[00:19:40] Speaker 00:
He claimed that Crosslight had unique characteristics that its competitors could not offer, and it goes on and on.

[00:19:46] Speaker 00:
It seems to me that that language, this whole showing that Crocs undertook a definitive marketing plan

[00:19:59] Speaker 00:
that was preceded by or that's grounded on a falsehood.

[00:20:04] Speaker 00:
The falsehood being innovation, authorship, inventor, patent, and all that is conceded that that was not true.

[00:20:13] Speaker 00:
It seems to me that those falsehoods are a link to these other claims.

[00:20:20] Speaker 00:
And there's quite a bit there.

[00:20:22] Speaker 03:
So I think that question is answered by, for example,

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Biden.

[00:20:44] Speaker 03:
Admittedly, it's under Ninth Circuit law, but there's no showing of a difference in the Tenth Circuit.

[00:20:48] Speaker 03:
But what was left at issue in Baden?

[00:20:52] Speaker 03:
The district court eliminated the words proprietary and exclusive as a basis for Lanham Act liability.

[00:20:57] Speaker 03:
That was not appealed.

[00:20:59] Speaker 03:
Those are two of the words we have at issue here.

[00:21:01] Speaker 03:
The word left that this court confronted in Baden was the word innovative.

[00:21:09] Speaker 00:
The court in Baden said

[00:21:12] Speaker 00:
noting that the claim of innovation and authorship was false, said, thus, we must determine whether Bain has alleged anything more than the falsehood designation of authorship.

[00:21:24] Speaker 00:
Here, it seems undisputed that there is an allegation of more than just a false authorship.

[00:21:36] Speaker 03:
The difference is he invaded quite clearly under the terms of that decision.

[00:21:42] Speaker 03:
The word that was at issue there, innovative, was in fact linked to a product characteristic.

[00:21:47] Speaker 03:
It wasn't, we're innovative.

[00:21:50] Speaker 03:
The claim that was alleged to be false was, it was innovative dual cushion.

[00:21:55] Speaker 00:
If we find a link between authorship

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and the statements regarding unique characteristics.

[00:22:03] Speaker 00:
If we find a link, you lose, correct?

[00:22:05] Speaker 03:
Not correct.

[00:22:06] Speaker 03:
That's what I'm saying.

[00:22:07] Speaker 03:
That's what Baden answers.

[00:22:09] Speaker 03:
There was a link in Baden.

[00:22:10] Speaker 03:
The claim was that what was at issue was this statement of an innovative dual-cushion technology.

[00:22:18] Speaker 03:
And this is my whole point.

[00:22:20] Speaker 03:
That is, dual-cushion technology is a characteristic of the product.

[00:22:24] Speaker 03:
There's no doubt about that.

[00:22:26] Speaker 03:
linking the word innovative to that characteristic, dual pushing technology is not enough.

[00:22:33] Speaker 01:
So I've got a couple of questions for you.

[00:22:34] Speaker 01:
Are you arguing for a per se rule that words like patented would not fall within the scope of a 43A1B claim?

[00:22:43] Speaker 03:
Well, I am saying, so this is the distinction I'm trying to get to.

[00:22:49] Speaker 03:
I'm saying here.

[00:22:51] Speaker 01:
Are you arguing that, yes or no?

[00:22:54] Speaker 03:
I am arguing that if all you say that is false is patented, that cannot be an A1B claim.

[00:23:01] Speaker 03:
That's correct.

[00:23:02] Speaker 00:
It cannot be.

[00:23:03] Speaker 03:
Cannot.

[00:23:04] Speaker 03:
Because patented is this court of all courts knows.

[00:23:07] Speaker 03:
Patented means that you are the originator of the idea.

[00:23:11] Speaker 03:
Any court... No, it means that it has a text.

[00:23:16] Speaker 04:
I'm not... I'm not... I'm not... I'm not... You are telling the world it has a text.

[00:23:27] Speaker 04:
usually but you're telling the world it's packed and which is false I'm not following and it's even more frustrating I think following the judge Cunningham said that the district judge found it

[00:23:52] Speaker 04:
expert opine on it and introduce it.

[00:23:55] Speaker 04:
So he says, I'm not going to allow in the stuff that might hurt me grand summary judgment and grand summary judgment because there's no evidence.

[00:24:05] Speaker 03:
I mean, I'm frustrated by, I think... Let me clarify that as well, Your Honor.

[00:24:11] Speaker 03:
The court did not do that.

[00:24:13] Speaker 03:
It's in the order.

[00:24:16] Speaker 03:
What happened here?

[00:24:18] Speaker 03:
is they chose to respond to the summary judgment motion by arguing that the falsity of patented was actionable under Daystar.

[00:24:29] Speaker 03:
They relied on these screenshots that were, in fact, inadmissible.

[00:24:32] Speaker 03:
They did not prove that they could be admitted.

[00:24:35] Speaker 03:
So that was excluded.

[00:24:36] Speaker 04:
That does not appear to be appealed.

[00:24:49] Speaker 04:
is false.

[00:24:49] Speaker 03:
Under the 10th Circuit, as explained in the order on reconsideration and the order on supplementation, which are not appealed here and thus final, they tried to get in later the expert survey and the court explained that in the 10th Circuit, when you respond to a summary judgment motion and do not do a 56D, in the 10th Circuit you have waived 56D and cannot pursue it.

[00:25:16] Speaker 01:
that's the holding

[00:25:33] Speaker 01:
Or yeah, a 12C would be a judgment on the pleadings.

[00:25:36] Speaker 01:
That would have been fine.

[00:25:37] Speaker 01:
But seeing it in this fashion with the summary judgment, it feels like a gotcha of there's six months discovery, like very few deaths have been taken.

[00:25:45] Speaker 01:
I don't think expert discovery started.

[00:25:47] Speaker 01:
And they're not able to get all this stuff in that I think would have led to a proper way to oppose summary judgment.

[00:25:53] Speaker 03:
But they didn't try to, Your Honor.

[00:25:55] Speaker 03:
That's my point.

[00:25:56] Speaker 03:
And in the 10th Circuit, when you oppose rather than move for 50-60, you waive your 50-60.

[00:26:01] Speaker 03:
They later did try to get it in.

[00:26:03] Speaker 03:
But counsel's arguments sort of reveal the problem here.

[00:26:07] Speaker 03:
What they essentially said was, until expert testimony, we're not sure what people heard.

[00:26:11] Speaker 03:
Therefore, we're not sure what we're going to say was false.

[00:26:14] Speaker 01:
So what about that?

[00:26:15] Speaker 01:
Will you address for us the things that they did put in?

[00:26:19] Speaker 01:
Because I saw, I was going through the record, I was seeing things in terms of counterclaims, interrogatory responses.

[00:26:25] Speaker 01:
I think in your summary judgment brief, you referred to interrogatory response number 18.

[00:26:30] Speaker 01:
Can you tell us why that wasn't

[00:26:32] Speaker 01:
are sufficient in your opinion to properly sure let me I gosh I hope I actually have responses you know what I can do I do yet interrogatory response 18 I will tell you is that well I can give you an appendix page that would help direct you I think appendix page 1394 I wanna ask

[00:26:58] Speaker 01:
Is that part of your summary judgment briefing, if you have that access to that page?

[00:27:23] Speaker 03:
The response that the court relied on as an interrogatory response is stated at Appendix 2-3 of the court summary judgment order, which says that their claim is that representations are false because the words patented, proprietary, and exclusive were false.

[00:27:43] Speaker 03:
That is the summary.

[00:27:44] Speaker 03:
That is the interrogatory response.

[00:27:46] Speaker 00:
Can the word patented ever imply something about the characteristics or the nature of a product?

[00:27:53] Speaker 00:
Maybe, Your Honor.

[00:27:54] Speaker 00:
Excuse me?

[00:27:55] Speaker 00:
Maybe.

[00:27:56] Speaker 03:
But here's the deal with that.

[00:27:59] Speaker 00:
Let's do a yes or no, because we're almost out of time.

[00:28:01] Speaker 00:
I'm sorry.

[00:28:02] Speaker 03:
Yeah, the answer is it could be, but you have to say what that is.

[00:28:05] Speaker 04:
What is Section 101?

[00:28:08] Speaker 04:
We all do at different levels, but we all do on Section 101.

[00:28:12] Speaker 04:
Section 101 is the fight over whether something is novel.

[00:28:18] Speaker 04:
And by putting its patented on it, you're telling the world this is novel.

[00:28:24] Speaker 04:
But you're lying.

[00:28:28] Speaker 04:
There's nothing novel in it that's patentable.

[00:28:35] Speaker 04:
And so that, I don't understand how saying something is novel doesn't qualify as a nature characteristic for quality of the good.

[00:28:44] Speaker 04:
That just isn't true.

[00:28:46] Speaker 03:
Because that is a patent, is a statement of who was the originator of the idea.

[00:28:50] Speaker 03:
That's how you get a patent, is to be the originator of the idea.

[00:28:53] Speaker 00:
But we've agreed that when you have the word patent, or you're dealing with the authorship issue, right, regardless of how you frame it, you have that plus.

[00:29:03] Speaker 00:
and it's linked to information concerning the nature and the characteristic of the product.

[00:29:10] Speaker 00:
Now we're talking about a different horse.

[00:29:12] Speaker 03:
But the key is, it's a misrepresentation.

[00:29:16] Speaker 03:
And they don't ever allege that there's a representation.

[00:29:18] Speaker 00:
The misrepresentation is that, well, first of all, the first misrepresentation, you don't have a patent.

[00:29:25] Speaker 00:
Yes.

[00:29:25] Speaker 00:
The second misrepresentation is all those qualities that were claimed to have been patented, in fact, were false.

[00:29:34] Speaker 03:
That was the district court's point.

[00:29:37] Speaker 03:
That's the claim that was never made.

[00:29:39] Speaker 03:
There is no allegation in this case that Crocs claimed or consumers heard because there was no such evidence of that at summary judgment under the 10th Circuit.

[00:29:48] Speaker 00:
Is that a genuine issue of material fact?

[00:29:52] Speaker 03:
Yeah, it's like SUPQ.

[00:29:54] Speaker 03:
Yes, it is.

[00:29:55] Speaker 03:
No, I'm sorry.

[00:29:56] Speaker 03:
It is not, it is, had they put it in, they could have put in, but there is no- If they had six more months, they might have done it.

[00:30:03] Speaker 03:
But under the 10th Circuit, they did not, they did not do it.

[00:30:07] Speaker 00:
Okay, you're out of time.

[00:30:09] Speaker 00:
Any questions?

[00:30:11] Speaker 00:
Okay, thank you.

[00:30:14] Speaker 00:
Mr. Berkowitz, you got three minutes.

[00:30:16] Speaker 02:
Thank you, Your Honor.

[00:30:17] Speaker 02:
First, I just want to address Judge Cunningham's prior question that is at appendix page 481, that's paragraph 7, additional allegations at appendix 493 and 494.

[00:30:29] Speaker 02:
I just want to highlight for the court that there were unobjected to exhibits of advertising that were false advertising.

[00:30:37] Speaker 02:
I just want to read one.

[00:30:39] Speaker 02:
The reason the shoes are so comfortable is that they are made of a patented closed cell resin.

[00:30:44] Speaker 02:
The resin has many positive aspects, and it goes on.

[00:30:47] Speaker 04:
And that would constitute a material fact under Rule 56.

[00:30:51] Speaker 02:
Absolutely, Your Honor.

[00:30:52] Speaker 02:
And there are several of these.

[00:30:54] Speaker 02:
That's from Crox's co-founder to a customer.

[00:30:57] Speaker 02:
There's no objection to that.

[00:30:59] Speaker 02:
The district court didn't exclude it, aside from the fact that these hearsay... Of course this is not hearsay.

[00:31:04] Speaker 02:
This is a false advertising case.

[00:31:06] Speaker 02:
We're not offering this for the truth of anything.

[00:31:08] Speaker 02:
That's exactly the opposite.

[00:31:10] Speaker 01:
So I do think that part is helpful, then, counsel.

[00:31:12] Speaker 01:
Can you identify for us, basically, the parts that the district court considered?

[00:31:16] Speaker 01:
Like, let's, for the moment, even though I think that it sounds like some of the judges on this panel may have disagreements with what might have gotten excluded, but for the moment, just tell us some of the parts that were considered that you think would create

[00:31:28] Speaker 02:
So, Your Honor, Exhibit J, which is Appendix Page 1456.

[00:31:33] Speaker 02:
And this would have been considered?

[00:31:36] Speaker 02:
It didn't talk about the opinion, but it was cited by us without objection and without being excluded.

[00:31:41] Speaker 00:
It was submitted on the record.

[00:31:42] Speaker 02:
On the record, Your Honor.

[00:31:43] Speaker 02:
That's correct.

[00:31:44] Speaker 02:
It's Appendix Page 1456.

[00:31:46] Speaker 02:
We cite it in our summary judgment opposition at Appendix 1413.

[00:31:49] Speaker 00:
What does that say real quickly?

[00:31:53] Speaker 00:
I'm sorry, Your Honor.

[00:31:54] Speaker 00:
What does that say?

[00:31:55] Speaker 02:
That's the one that I just read.

[00:31:56] Speaker 02:
The reasons the shoes are so comfortable is that they are made of a patented closed cell resin.

[00:32:01] Speaker 02:
That's from Prox's co-founder to a customer in email.

[00:32:05] Speaker 02:
There's exhibit G to our summary judgment brief, which is

[00:32:09] Speaker 02:
Appendix 1449, cited at Appendix 1412.

[00:32:13] Speaker 02:
That's our summary judgment opposition.

[00:32:15] Speaker 02:
That's Crox's website.

[00:32:17] Speaker 02:
It says, the special patented closed cell resin warms and softens with your body heat and molds to your feet.

[00:32:24] Speaker 02:
No objection to that exhibit, not excluded.

[00:32:27] Speaker 02:
Never talked about it in the opinion, but it's in the record, without objection.

[00:32:32] Speaker 02:
Exhibit H, this is the last, I know I'm out of time, so this is the last one I'll give, but Exhibit H, to our summary judgment opposition, this is at Appendix 1451, cited in our brief at Appendix 1412, this at Croc's press release from 2013, and 10 years after they started doing this.

[00:32:50] Speaker 02:
We've discussed our proven comfort from our patented cross light material.

[00:32:55] Speaker 02:
Again, no objection.

[00:32:57] Speaker 02:
in the record.

[00:32:59] Speaker 02:
So I'll finish your honor and say the consequences of what Crocs is saying are dire.

[00:33:05] Speaker 02:
That companies can advertise our product is patented and lie about it without consequences under the Lanham Act.

[00:33:13] Speaker 02:
They can say we are the only ones that can make this because that's what a patent means.

[00:33:19] Speaker 02:
It's the right to exclude.

[00:33:20] Speaker 02:
And it's almost worse because patented suggests the US government approved of it.

[00:33:25] Speaker 02:
And that's not OK.

[00:33:26] Speaker 02:
That's not what any case says.

[00:33:29] Speaker 02:
And the Lanham Act says you can't do that.

[00:33:31] Speaker 00:
Thank you.

[00:33:33] Speaker 00:
We thank the parties for the argument.

[00:33:34] Speaker 00:
This case will be taken under submission.