[00:00:03] Speaker 03: The next case is 23-2002 DS2KQ versus devriot. [00:00:14] Speaker 03: How do you pronounce the names of the parties here? [00:00:21] Speaker 01: For GND, I've always gone with GND, Your Honor. [00:00:30] Speaker 03: Please proceed. [00:00:31] Speaker 01: Thank you, Your Honor. [00:00:32] Speaker 01: The word court in section 285 is meant to be broad and covering attorney fees in all cases, including in the Court of Federal Claims. [00:00:41] Speaker 01: Here we have an issue of statutory harmonization between 35 USC 285 and 28 USC court time. [00:00:47] Speaker 01: Let me stop you there. [00:00:49] Speaker 03: And I don't mean to lie. [00:00:51] Speaker 03: The argument maybe just still has [00:00:54] Speaker 03: different views. [00:00:55] Speaker 03: She will definitely express them. [00:00:58] Speaker 03: But before you get into that, I mean, it's a difficult issue. [00:01:00] Speaker 03: It's a novel issue. [00:01:02] Speaker 03: Why do we even hear from that issue, given that there was a dismissal without prejudice? [00:01:09] Speaker 03: I thought all of the case law defining who was and was not a prevailing party resolved those disputes that there is no prevailing party when there's only a dismissal without prejudice. [00:01:21] Speaker 03: So that's kind of a threshold issue that resolves the case. [00:01:25] Speaker 03: It doesn't resolve it on its so-called merits. [00:01:29] Speaker 03: So how do we get beyond that threshold issue? [00:01:33] Speaker 01: Your Honor, under CRST and Rainier, we would submit that we are a prevailing party because we achieved the goal that we sought. [00:01:41] Speaker 01: And so a actual dismissal with prejudice is no longer required under those cases. [00:01:48] Speaker 01: We achieved three goals. [00:01:49] Speaker 01: And specifically, we wanted a dismissal, and we obtained that. [00:01:53] Speaker 01: It was a dismissal without prejudice, but that was a goal that we saw it was a dismissal from the case, number one. [00:01:59] Speaker 01: Number two, we wanted to not have to be have to participate in the Court of Federal Claims case under Rule 14. [00:02:06] Speaker 01: We achieved that goal because Judge Williams, she specifically held that we would not only be dismissed, but we would not have to participate because of the lack of refiling investigation. [00:02:15] Speaker 03: Yes, but I'm going to start getting started right now. [00:02:19] Speaker 03: And moving forward to a bunch of our cases, including RFR versus Century Steps and a bunch of other cases, you don't create a prevailing party if there's voluntarily dismissal of an action. [00:02:35] Speaker 03: So give me the cases where there was exactly like here a dismissal without prejudice, and some court said you can still be a prevailing party under those circumstances. [00:02:48] Speaker 03: Tell me those cases again. [00:02:50] Speaker 01: Yes, Your Honor, we have a number of citations on that, and it begins with the 11th Circuit case that we cited in our gray brief. [00:02:59] Speaker 01: The gray brief had not only the 11th Circuit, but also a number of other cases, all of which point out that you do not have to have a dismissal with prejudice in order to be a prevailing party. [00:03:13] Speaker 03: But is that the Beach Flits case? [00:03:16] Speaker 01: Yes, Your Honor. [00:03:17] Speaker 01: Bleach blitz. [00:03:17] Speaker 01: I did find it. [00:03:18] Speaker 01: Thank you. [00:03:18] Speaker 03: We just read it differently. [00:03:20] Speaker 03: But I read that the 11th Circuit is contrasting, in that case, a dismissal on the merits with a voluntary dismissal and concluding that the former confirms for filing party status while the latter does not. [00:03:37] Speaker 03: If I'm right, that hurts you. [00:03:39] Speaker 03: So tell me what about what I got wrong about my reading of the 11th Circuit case. [00:03:46] Speaker 01: Well, I think that BleachBlitz didn't make clear that if you have a dismissal without prejudice, that in concept can justify a prevailing party status. [00:03:55] Speaker 01: And then all of the progeny that came after the BleachBlitz case also indicated and did have examples where there were dismissals without prejudice, and that accorded prevailing party status. [00:04:09] Speaker 01: And those are all cited on that. [00:04:11] Speaker 01: It was about 10 cases that we cited after the bleach flits case in the gray brief. [00:04:17] Speaker 03: Oh, in the gray, not in the blue? [00:04:21] Speaker 03: Anything other than the 11th Circuit cases? [00:04:25] Speaker 01: Other than that line of cases, those are the cases that we found, Your Honor. [00:04:28] Speaker 03: What about us? [00:04:31] Speaker 03: We've held in a case called RFR, presidential opinion versus century steps, that voluntary dismissal will claim without prejudice does not provoke, bestow prevailing party status. [00:04:43] Speaker 03: And we applied Fifth Circuit law on that case. [00:04:45] Speaker 01: And I have seen that case, Your Honor, but the Rainier case, we think that because all you have to do is achieve the goal that you seek to achieve, we had three goals that we sought to achieve, and we accomplished all of those. [00:04:56] Speaker 01: In fact, Judge Williams, she also noted that not only would we obtain the dismissal without prejudice, and that we would no longer have to participate in the quarterback. [00:05:04] Speaker 03: Well, I mean, that doesn't get too far, right? [00:05:06] Speaker 03: I mean, I understand the position you were in, and the Court of Federal Claims was weighing, well, shall we do with prejudice or without prejudice? [00:05:14] Speaker 03: But just because [00:05:16] Speaker 03: In her remark, she indicated she thought it could go either way. [00:05:20] Speaker 03: I don't see how that, assuming I'm right on the law, how that sort of strange thing about this case gives you prevailing party status. [00:05:32] Speaker 03: I mean, she ultimately, for your purposes, picked the wrong truck, picked the wrong bucket. [00:05:36] Speaker 03: So even though she was suggesting that it could be maybe under either bucket, she picked the wrong one, right? [00:05:44] Speaker 01: I don't think that she had to have a dismissal without prejudice just based upon the cases that we've seen since CRSD and Rainier, where I just think that we have to disagree on the issue of whether or not an actual dismissal with prejudice is required in order to be a prevailing party. [00:06:02] Speaker 02: What about the colloquy that went back and forth at page 2181 to 82, where basically there was no promise from GND that it wouldn't file a new action against your client. [00:06:21] Speaker 02: Doesn't that support the idea that there has been no alteration in the legal relationship between the parties? [00:06:30] Speaker 01: I think that we took that as an agreement that that achieved our result as well. [00:06:35] Speaker 01: So that was not one of the examples that I gave because there's a dispute by GND as to whether or not it did, in fact, agree not to sue us again. [00:06:44] Speaker 01: We believe that it did before Judge Williams agreed not to sue us again. [00:06:47] Speaker 01: They dispute that. [00:06:49] Speaker 02: But there was also another clear... Were racism probably not at liberty to take a position on my client's behalf with respect to that? [00:06:57] Speaker 02: It doesn't sound like a promise. [00:06:59] Speaker 01: It was clear from what was exchanged at the hearing, at least to us, Your Honor, that there was an agreement. [00:07:06] Speaker 01: In fact, they followed on to say Judge Williams pressed them on the issue of discovery and said, are you going to exclude discovery from HID? [00:07:13] Speaker 01: And they did specifically agree to that. [00:07:15] Speaker 01: So that is another point where it shows that we were able to achieve certain goals that we saw and no longer in the case, no longer having to have discovery. [00:07:25] Speaker 01: Whether or not there's a dispute over whether or not we were dismissed with prejudice, we believe that we still met the Rainier standard for the prevailing party. [00:07:36] Speaker 01: So with that, Your Honors, I will move on to the harmonization between 285 and 1498. [00:07:42] Speaker 01: We believe that these can be read in harmony because when 285 was passed in 1946 and codified in 1952, it applied to the recovery of attorney fees in all courts. [00:07:54] Speaker 01: And then in 1498, it was passed in 1910, further amended in 1948. [00:08:01] Speaker 01: But in 1996, it was amended to allow the recovery of attorney fees from the government. [00:08:07] Speaker 02: And when Congress... For specific circumstances for the government. [00:08:11] Speaker 01: For the government owner. [00:08:12] Speaker 02: And is your view then that 285 would apply in circumstances where you're not collecting fees from the government? [00:08:18] Speaker 01: Exactly, Your Honor. [00:08:19] Speaker 02: Is it your view that the government could rely on Section 285? [00:08:22] Speaker 02: I mean, you don't have to go that far today, but I'm just asking. [00:08:26] Speaker 01: We don't have to go that far today, but it does appear that it would be able to. [00:08:30] Speaker 01: The government would be able to potentially, but we don't have to touch that because we're talking about private party to private party issues and that the Court of Federal Claims would be able to address that as a sanction, not as a claim. [00:08:44] Speaker 01: And so in 1996, the Congress, when they were amending 1498 to allow attorney fees, [00:08:50] Speaker 01: They specifically recognized 285 and recognized that 285 was available when considering the amendment of 1498. [00:08:58] Speaker 01: So that's why we believe that the statutory harmonization is quite clear between the two. [00:09:03] Speaker 03: But you admit that they couldn't have sought attorney's fees from the government under 285, right? [00:09:10] Speaker 01: That they? [00:09:11] Speaker 03: They couldn't have sought fees against the government under 285. [00:09:15] Speaker 01: My client, Your Honor, or someone else? [00:09:17] Speaker 03: G and Ds, whatever. [00:09:18] Speaker 03: They're fine. [00:09:19] Speaker 03: G and Ds. [00:09:19] Speaker 03: G and Ds. [00:09:22] Speaker 01: So G and D does not appear qualified under those limited circumstances, which just so referred to. [00:09:27] Speaker 01: So we don't believe that G and D would be able to seek attorney fees from the government. [00:09:31] Speaker 01: There are circumstances where, for example, small entities, private inventors. [00:09:36] Speaker 03: But you're saying that you don't know whether the government could seek fees from them under 285, but you know the government couldn't seek fees [00:09:44] Speaker 01: It's an open question as to whether or not the inverse is possible. [00:09:47] Speaker 01: Could the government seek fees from GND? [00:09:49] Speaker 01: That is an open question, which we're not aware of, has been addressed at this time. [00:09:54] Speaker 01: In fact, Judge Williams raised that during the consideration of whether or not 285 granted her jurisdiction with the DOJ attorney in the quarter claims proceeding. [00:10:04] Speaker 01: And she noted that that was an outstanding issue, but that it did not apply here. [00:10:08] Speaker 01: because it was a sanction that she was applying against the private party, not against the government. [00:10:12] Speaker 01: And the DOJ government did not take a position on that issue in the hearing. [00:10:18] Speaker 01: But what Judge Williams did find is Judge Williams found that there was a lack of a pre-filing investigation. [00:10:23] Speaker 01: And she provided very detailed analysis and conclusion that there was no basis for GND to have brought the case, including the allegations, against HID. [00:10:34] Speaker 01: And she also noted finding, I know that we've discussed this already, not only the prevailing party issue, Your Honor, but also she specifically looked at jurisdiction both at the hearing [00:10:44] Speaker 01: at Appendix 2895 where she considered and she noted that the jurisdiction issue was quote unquote a non-issue. [00:10:53] Speaker 01: And then also in her ruling she specifically acknowledged that 285 there was jurisdiction for her to consider and decide under 285 in the Court of Federal Claims, which she noted in her opinion at Note 12, Appendix 2993. [00:11:07] Speaker 01: After all of this happened with Judge Williams, as you know, the case was then transferred to Judge Holt. [00:11:12] Speaker 01: And Judge Holt began the process of determining quantum. [00:11:16] Speaker 01: So we had already won on the attorney fees award under 285. [00:11:20] Speaker 01: And so the issue was how much? [00:11:22] Speaker 01: At that point, GND raised the issue of jurisdiction and said, well, we would like to revisit this. [00:11:27] Speaker 01: And so that's how we got here, Your Honor, because we had additional briefing. [00:11:31] Speaker 01: And then Judge Holt decided that the Court of Federal Claims did not have jurisdiction under 285. [00:11:37] Speaker 01: However, Judge Holt and the appellee in its brief, in its red brief, we believe are relying upon cases which are incorrect for three groups of reasons. [00:11:46] Speaker 01: The first group of cases are all cases that deal with claims against the government. [00:11:51] Speaker 01: And so here we're not talking about a claim against the government. [00:11:53] Speaker 01: We're talking about a sanction that the court has awarded against the private party in a 1498 case. [00:12:00] Speaker 01: And so that would knock out Regent Jack, the Graph and Read 1 and 2, Standard Manufacturing, LaSona. [00:12:06] Speaker 01: All of those cases are in the Group 1 category, which were against the government. [00:12:10] Speaker 01: The Group 2 of 3 category are cases which are claims between private parties as claims. [00:12:16] Speaker 01: For example, a claim where one private party is trying to seek an injunction against another private party in the court of federal claims. [00:12:23] Speaker 01: That obviously is not kosher. [00:12:26] Speaker 01: For example, also seeking a declaratory judgment in the court of federal claims by a private party, that also is not allowed. [00:12:33] Speaker 01: So these are this group two claims, and these would dispose of Lemelson, Avacent, Rolls-Royce, Provost West, and Sunship Building. [00:12:43] Speaker 01: So this leaves us with the one case that's left after going through all of those, and that's the Carrier case. [00:12:48] Speaker 01: So the Carrier case is an interesting court case from the Court of Claims. [00:12:52] Speaker 01: This is a case that, as far as we found, had never been cited by any court before Judge Holt cited it in this case. [00:13:00] Speaker 01: And it was a 14-sentence decision. [00:13:02] Speaker 01: And in that decision, it involved a government notice under Rule 14 in the Court of Federal Claims to a third-party Sunnyvale. [00:13:11] Speaker 01: And Sunnyvale was notified, you may be interested in this case. [00:13:14] Speaker 01: Sunnyvale moved to quash that notice, and that motion to quash was denied. [00:13:21] Speaker 01: But as part of that, they moved to recover fees against the plaintiff patentee, saying, well, we should have never been involved. [00:13:29] Speaker 01: So even though it was what we would submit as dicta, because it was not on the issue of the case, the issue of the case was the motion to quash. [00:13:36] Speaker 01: The court did say, well, we believe 285 only applies to district courts. [00:13:40] Speaker 01: But that was before CRST and Rainier on the prevailing party issue. [00:13:46] Speaker 01: That was before Optane Fitness on the exceptionality issue. [00:13:50] Speaker 01: And it was not specifically an issue that was before the court on that, because the motion, the issue before the court was the motion to quash. [00:14:00] Speaker 02: I just want to ask you a question. [00:14:01] Speaker 02: Have any courts, other than district courts, exercised discretion under Section 285? [00:14:06] Speaker 02: I understand the statute doesn't say that it's limited to district courts on its face at all. [00:14:13] Speaker 02: It says the court. [00:14:14] Speaker 02: But have other courts exercised jurisdiction, for example? [00:14:18] Speaker 02: I mean, have awarded attorney fees under Section 285 besides district courts? [00:14:24] Speaker 02: Like, for example, has our court done so? [00:14:27] Speaker 01: The closest decision is the Juden case, Your Honor. [00:14:31] Speaker 01: And in the Juden case, on the lower proceeding, Judge Brugink had looked at, and this was back in 1995, had looked at the issue of [00:14:41] Speaker 01: A lack of pre-filing investigation, inadequate pre-filing investigation, same issue. [00:14:45] Speaker 01: And the question was, Rule 11 sanctions or 285 attorney fee award? [00:14:50] Speaker 01: At the time, that was before Octane Fitness. [00:14:53] Speaker 01: And so actually, it was easier to show Rule 11 than 285. [00:14:57] Speaker 01: Judge Brookings specifically said, this court has the ability to award attorney fees under 285 from the Court of Federal Claims. [00:15:03] Speaker 01: That then went to the federal circuit. [00:15:05] Speaker 01: At the federal circuit, the court then looked at the issue. [00:15:08] Speaker 01: Judge Brugge, by the way, found that there was no rule 11 violation. [00:15:11] Speaker 01: But at the federal circuit, that was reversed. [00:15:14] Speaker 01: And that rule 11 violation was found. [00:15:16] Speaker 01: So I would submit, Your Honor, that if the court of federal claims [00:15:19] Speaker 01: under its ancillary ability to take up issues of its own docket within its own discretion. [00:15:26] Speaker 01: If it has the ability under Rule 11 to address attorney fee awards, then it would also have the ability under 285 in that vein. [00:15:36] Speaker 03: You've exhausted all your time. [00:15:38] Speaker 03: Will we still have time for the battle? [00:15:39] Speaker 03: Let's hear from the other side, please. [00:15:41] Speaker 03: Thank you. [00:15:52] Speaker 00: Good morning, Your Honors. [00:15:54] Speaker 00: May it please the Court. [00:15:56] Speaker 00: HID asks you to legislate where Congress has not by expanding the limited jurisdiction of the Court of Federal Claims. [00:16:02] Speaker 03: Can you address the first question that both Judge Solon and I asked about why this is even, like, how they can do it within the parties when there's been dismissal without correctives? [00:16:13] Speaker 00: Absolutely, Your Honor. [00:16:14] Speaker 00: We don't think they can. [00:16:15] Speaker 00: We think you got it right when you referenced the RFR decision that says, as clear as day from the federal circuit, a dismissal without prejudice is not good enough. [00:16:24] Speaker 00: ran near the case they rely on, that was a dismissal with prejudice. [00:16:28] Speaker 00: And in that opinion, the federal circuit distinguishes dismissal without prejudice as a ruling not on the merits from dismissal with prejudice as a ruling on the merits. [00:16:38] Speaker 00: We also need to look at the facts here. [00:16:41] Speaker 00: As you recognize, they didn't get what they were asking for. [00:16:44] Speaker 00: They intervened in a case they didn't have to come defend. [00:16:46] Speaker 00: They filed a motion to dismiss the night as moot. [00:16:52] Speaker 00: They opposed their own dismissal without prejudice and sought a dismissal with prejudice. [00:16:58] Speaker 00: That was denied as well. [00:17:00] Speaker 00: They didn't prevail on anything. [00:17:02] Speaker 00: The government at oral argument below confirmed that they would have defended this case had HID not showed up. [00:17:09] Speaker 00: And I think most importantly, HID's products were dismissed from this case just 20 days after HID sent a letter questioning the facts under that. [00:17:17] Speaker 00: This is a case they didn't have to be part of. [00:17:19] Speaker 00: They voluntarily chose to be part of, as is their right, and they got out of it shortly thereafter. [00:17:26] Speaker 00: We don't believe that Section 285 applies at all in the Court of Federal Claims. [00:17:30] Speaker 00: If it applied, this is certainly should not be the first case to ever apply it. [00:17:35] Speaker 00: And we don't believe that Section 285 applies because of three reasons. [00:17:39] Speaker 00: First, the statutory text Section 285 appears in the Patent Act, Title 35. [00:17:46] Speaker 00: Section 1498, the cause of action that gives rise to the cause of action here, is entitled 28. [00:17:51] Speaker 00: Those are completely separate statutory sections. [00:17:55] Speaker 00: Congress made them separate for a reason, and Congress could have, but did not, incorporated Section 285 into Section 1498. [00:18:01] Speaker 02: Can I bring you back to the prevailing party issue for a second, which is why isn't the fact that they were able to have their case [00:18:10] Speaker 02: taken out of the Court of Federal Claims. [00:18:14] Speaker 02: They didn't have to go through discovery. [00:18:16] Speaker 02: There were several things that were identified by counsel as to why they were successful. [00:18:24] Speaker 02: What is your response to those specifics? [00:18:27] Speaker 00: Yes, Your Honor. [00:18:28] Speaker 00: First of all, the core principle is it was a voluntary dismissal without prejudice. [00:18:33] Speaker 00: It was not, as Rainier requires, a judicially sanctioned change in the relationship between the parties. [00:18:39] Speaker 00: It was Gisika's own decision. [00:18:40] Speaker 02: And I take it that you interpret the interaction that occurred on the record where there was a question about whether a future lawsuit would be filed. [00:18:51] Speaker 02: Do you interpret that differently than HID does? [00:18:56] Speaker 00: Absolutely, Your Honor. [00:18:57] Speaker 00: I think the quote that the panel referred to was clear. [00:19:01] Speaker 00: My co-counsel said, I can't take a position on that without consulting with my client. [00:19:05] Speaker 00: It was a dismissal without prejudice, remains so, and we [00:19:09] Speaker 00: remain, we still have the option of refiling those claims directly against HID in the future. [00:19:14] Speaker 00: That's the key difference here. [00:19:16] Speaker 00: Again, they asked for two things. [00:19:20] Speaker 00: They asked for a motion to be granted. [00:19:23] Speaker 00: Didn't get it. [00:19:24] Speaker 00: They asked for their dismissal fee with prejudice. [00:19:26] Speaker 00: Didn't get that either. [00:19:28] Speaker 00: So going back to the, after the statute, we have to look to the precedents. [00:19:32] Speaker 00: And there's a long line of precedents from this case. [00:19:36] Speaker 00: My friend on the other side categorized them into three categories. [00:19:39] Speaker 00: I think one really important case that he missed was Motorola. [00:19:42] Speaker 00: In that case, the trial court had held that Section 287, the patent marking doctrine from the Patent Act, applies in the Court of Federal Claims. [00:19:53] Speaker 00: The Federal Circuit reversed and said, and there's an important quote here, the Federal Circuit reversed and told us that you cannot wholesale incorporate the Patent Act remedies [00:20:08] Speaker 02: That's another interesting issue here though, right? [00:20:11] Speaker 02: It does tell us that you can't wholesale decide that Section 285 is going to apply. [00:20:19] Speaker 02: But so that has to be considered and evaluated. [00:20:22] Speaker 02: But the case you just cited doesn't actually address this issue of first impression that's before us, right? [00:20:30] Speaker 00: Correct, Your Honor. [00:20:30] Speaker 00: Motorola does not directly address 285. [00:20:32] Speaker 00: It does address the effort to import patent act remedies that are not specifically incorporated in 1498. [00:20:39] Speaker 00: Lasona, however, does address section 285. [00:20:43] Speaker 00: And I know we talked about that. [00:20:46] Speaker 00: Lasona tells us incorporating all of the remedies of Title 35 into 1498 without the explicit consent of Congress, which certainly could have provided for such incorporation had it so desired, would violate the requirement of express waiver of sovereign immunity. [00:21:01] Speaker 00: Lasona addressed this exact issue. [00:21:03] Speaker 00: Yes, it was the other way around. [00:21:05] Speaker 00: It was a private party. [00:21:06] Speaker 00: seeking fees from the government. [00:21:08] Speaker 00: That makes no difference. [00:21:09] Speaker 00: And we know it makes no difference when we look at the statutory text. [00:21:13] Speaker 00: In 1996, Congress amended section 1498. [00:21:15] Speaker 00: It chose to make the grant of attorney's fees one-sided, where only a private party could recover fees from the government. [00:21:23] Speaker 00: In doing so, Congress could have easily incorporated section 285, or it could have made the grant of fees two-sided, or I guess in this case, three-sided. [00:21:34] Speaker 00: Congress chose not to do so. [00:21:35] Speaker 00: We know that Congress specifically considered the issue. [00:21:38] Speaker 00: We know that Congress chose not to make 285 or attorney's fees in general available to the government or to a private party, and we believe that we should respect Congress's choice there. [00:21:50] Speaker 00: There's also a distinction made in the case law between a remedy, as in section 285, and a defense, as in section 101 and those sorts of arguments. [00:22:01] Speaker 00: The case law and Congress has consistently recognized that defenses are available, remedies are not. [00:22:07] Speaker 00: Section 285 is a remedy. [00:22:08] Speaker 00: Section 284 is a remedy. [00:22:10] Speaker 00: That was also addressed in Wilsonia. [00:22:12] Speaker 00: Section 287, the patent marking statute. [00:22:16] Speaker 00: That was a remedy, and importantly, that was a remedy, that was Motorola, that benefits the government. [00:22:22] Speaker 00: So there was a suggestion in the briefing that we would be disadvantaging the government by not making 285 available to them. [00:22:29] Speaker 00: Congress made that decision, and Motorola tells us it's okay to refuse to import a patent act remedy, even when that remedy may benefit the government. [00:22:37] Speaker 00: That was the patent marking doctrine. [00:22:40] Speaker 00: Lacking support in the statute or the precedent, HID goes to policy, and their policy argument seeks to solve a problem that simply doesn't exist. [00:22:50] Speaker 00: HID suggests that without rewriting the statute to incorporate Section 285, the Court of Federal Claims is powerless to police the conduct of those before it. [00:23:01] Speaker 00: Not so. [00:23:02] Speaker 00: The Court of Federal Claims can and has awarded attorney's fees under Rule 11, [00:23:07] Speaker 00: under the court's inherent authority, under the Equal Access to Justice Act. [00:23:12] Speaker 00: That's the Judin case. [00:23:13] Speaker 00: That was a fee award under Rule 11, not under 285. [00:23:18] Speaker 00: Importantly, HID tried and failed to recover fees under each of those bases below. [00:23:26] Speaker 00: That's the second opinion from Judge Holt. [00:23:29] Speaker 00: And I think it's important to emphasize the factual findings from that opinion, which are not challenged on appeal. [00:23:36] Speaker 00: In his opinion, the second opinion, rejecting an award of attorney's fees under Section 285, Judge Holt tells us that Gisika's claims were non-frivolous and his pre-suit investigation was adequate and sufficient. [00:23:59] Speaker 00: That's at Appendix 49-53. [00:24:02] Speaker 00: Judge Holt also tells us that HID failed to establish that Gisika conducted itself in bad faith, because it was not objectively obvious under the circumstances that the card-based products did not infringe. [00:24:15] Speaker 00: Judge Holt recognized what I said earlier, that Gisika promptly amended its complaint to drop claims against HID's products just 20 days after HID blundered. [00:24:24] Speaker 02: Just make sure I understand. [00:24:26] Speaker 02: So that's contrary to Judge Williams's ruling, right? [00:24:30] Speaker 00: Judge Holt's factual findings, he applies a different legal standard. [00:24:34] Speaker 00: The facts he found, I believe, are different from facts Judge Williamstown. [00:24:39] Speaker 00: Judge Holt had a more full evidentiary record in front of him. [00:24:42] Speaker 00: He was also, again, applying the Rule 11 standards, which are a different standard. [00:24:46] Speaker 00: But he made factual findings that are not challenged on appeal that we believe are relevant to the 285 inquiry. [00:24:52] Speaker 00: And what that tells us, Your Honor, why we believe this is relevant in this appeal, is it tells us that HID had its chance at a remedy, and it lost. [00:25:00] Speaker 00: Rather than appealing Judge Holt's order, rather than challenging those factual findings, it asks you to create an entirely new remedy under Section 285. [00:25:10] Speaker 00: A remedy that, as you heard from my friend on the other side, the Court of Federal Claims has never applied. [00:25:16] Speaker 00: Not to benefit the government, not to benefit a plaintiff, and certainly not to benefit a third party. [00:25:22] Speaker 00: We don't believe this court should be the first to expand the jurisdiction of the Court of Federal Claims, particularly in these factual circumstances, where they had perfectly good remedies. [00:25:33] Speaker 00: And Judge Holt, on a more full evidentiary record, after thinking it was- And before your time runs out, let me go back to the preliminary party question. [00:25:39] Speaker 03: Did anybody- did your side ever kind of wave your arms and say, wait a minute, they shouldn't be entitled because there's no prevailing- they're not prevailing in the party? [00:25:47] Speaker 03: Now maybe you didn't do it before Judge Williams because she still had the ability to dismiss with prejudice, without prejudice, or with prejudice. [00:25:56] Speaker 03: So maybe you didn't want to call that to her attention, but at least with respect to [00:26:01] Speaker 03: your discussions in front of Judge Holt. [00:26:04] Speaker 03: Did you ever raise that matter? [00:26:06] Speaker 00: We did, Your Honor, in the supplemental briefing, both on the jurisdiction point, which is a narrow set of briefing, but certainly on the rule 11 and other points. [00:26:15] Speaker 00: We did raise the prevailing party issue. [00:26:17] Speaker 00: It's also, of course, briefed on this appeal, starting at page 41 of our argument. [00:26:22] Speaker 00: Do you have the site in your appendix where you raised it? [00:26:26] Speaker 00: I'm sorry, I just didn't hear it. [00:26:28] Speaker 00: I can give it to you if you'd give me just one second. [00:26:44] Speaker 00: It would have been in the briefing starting at Appendix 3851. [00:26:47] Speaker 00: That would be our response in opposition to the entitlement to fees under other legal theories. [00:26:53] Speaker 00: I don't have a specific pin site, but I can certainly give you a moment. [00:27:19] Speaker 00: your honor I'm sorry I don't have that insight available I do have the the section of our again our appellate brief where that issue is raised this as he recognized was a bifurcated proceeding that was a where the issue of prevailing party under 285 was determined by Judge Williams in the second round of supplemental briefing we certainly did argue that [00:27:47] Speaker 00: that they did not prevail under the Rule 11 and other related standards. [00:27:51] Speaker 00: And again, renewed that argument in our appellate briefing beginning at page 46. [00:28:01] Speaker 00: Now, before I close, Your Honor, [00:28:07] Speaker 00: Again, the Court of Federal Claims is a court of extremely limited jurisdiction, and this case attacks that foundational principle. [00:28:17] Speaker 00: HIV asks you to rewrite the statutory text and ignore a half century of precedent again, to do something that's never been done before. [00:28:24] Speaker 00: HIV does this as a third party that had no obligation to join this case. [00:28:28] Speaker 00: Again, they were noticed under Rule 14. [00:28:31] Speaker 00: The government confirmed that they would have defended the case without them. [00:28:35] Speaker 00: They filed two motions. [00:28:36] Speaker 00: They lost them both. [00:28:37] Speaker 00: They asked for nearly three quarters of a million dollars. [00:28:40] Speaker 00: Prior cases have uniformly confirmed that Section 285 does not apply. [00:28:46] Speaker 00: Judge Holt got it right when he recognized those cases and found himself lacking jurisdiction to award it. [00:28:52] Speaker 00: We believe that opinion should be affirmed. [00:28:54] Speaker 00: And before I close, I have to raise one issue I feel compelled to raise. [00:28:59] Speaker 00: It's about the jurisdiction of this court to hear this appeal. [00:29:02] Speaker 00: We believe HID's notice of appeal was untimely filed. [00:29:05] Speaker 00: I recognize this is an issue that wasn't raised in the briefing, and I apologize. [00:29:09] Speaker 03: But a jurisdictional issue can't be waived under the Supreme Court's Hamer rule. [00:29:21] Speaker 00: Your honor, it was within the last week as I was preparing for this oral argument. [00:29:27] Speaker 00: And again, I apologize to the court. [00:29:28] Speaker 00: I recognize it's an issue that should have been briefed. [00:29:31] Speaker 00: We'd be happy to submit supplemental briefings at the court. [00:29:34] Speaker 02: Do you want to walk through why you think it wasn't timely? [00:29:37] Speaker 00: Yes, your honor. [00:29:39] Speaker 00: The ruling, Judge Holt's ruling concluding there is a lack of subject matter jurisdiction, was issued on October 14th of 2020. [00:29:47] Speaker 02: October 14th of 2020? [00:29:48] Speaker 02: Correct. [00:29:49] Speaker 00: It fully, finally, and conclusively determined the issue of the court's lack of jurisdiction to award fees under Section 285. [00:29:59] Speaker 00: HID did not appeal that order until July 7th of 2022. [00:30:03] Speaker 00: HID waited until after the second round of attorney's fees arguments were held and decided. [00:30:09] Speaker 00: That second round, HID argued for fees under Rule 11, the court's inherent authority in the Equal Access to Justice Act. [00:30:17] Speaker 00: There was not a single mention of 285. [00:30:19] Speaker 00: That issue was dead, buried, and decided. [00:30:22] Speaker 00: After that second order was issued, HID filed its Notice of Appeal, and that's at Appendix 81. [00:30:30] Speaker 02: What law do you have? [00:30:32] Speaker 02: to support the idea that they had to appeal right away and not wait until after resolution of the second order in order to be able to avoid piecemeal litigation. [00:30:43] Speaker 00: Your honor, I think it's just 28 USC section 22107 itself. [00:30:47] Speaker 00: This wasn't piecemeal litigation. [00:30:49] Speaker 00: This 285 issue was fully and finally decided in Judge Holt's first order. [00:30:53] Speaker 00: The second issue, the second order, completely separate issues, rule 11, equal access to justice, inherent authority. [00:30:59] Speaker 03: So you're saying the clock started to run on October 14, 2020? [00:31:04] Speaker 00: Absolutely, your honor. [00:31:05] Speaker 00: We don't believe that they can appeal a different order [00:31:09] Speaker 00: addressing different issues and bootstrap an untimely appeal onto that. [00:31:13] Speaker 02: It's clear they didn't actually... But it's in the same case, right? [00:31:16] Speaker 02: I mean, you're just trying to understand. [00:31:17] Speaker 02: Ordinarily, you would wait until all issues are resolved. [00:31:21] Speaker 02: I guess your issue here, maybe you're saying this is different because they were a third party, but you're saying I can just look at the statute and I'll know that what you're saying is true. [00:31:31] Speaker 00: Your Honor, it is different. [00:31:32] Speaker 02: Do you have any cases or anything? [00:31:33] Speaker 00: Excuse me. [00:31:35] Speaker 00: I don't have a case dissecting this particular issue as to when an appeal of a... They're both interlocutory appeals. [00:31:45] Speaker 00: The case hasn't concluded. [00:31:46] Speaker 00: The case continues. [00:31:47] Speaker 00: And we think that's the key. [00:31:48] Speaker 02: Is that they're interlocked? [00:31:50] Speaker 00: They're both interlocutory appeals. [00:31:51] Speaker 00: If you're going to make an interlocutory appeal, you do so when an issue is fully finally decided. [00:31:55] Speaker 00: There is no doubt that issue was fully finally decided in October of 2020. [00:31:59] Speaker 00: There is similarly no doubt that that second order is not part of this appeal. [00:32:03] Speaker 00: You didn't hear a word about it during their argument. [00:32:06] Speaker 00: The very first sentence of their brief says HID global appeals from the order entered on October 14th of 2020, finding the United States court of federal claims. [00:32:16] Speaker 00: black jurisdiction. [00:32:18] Speaker 00: It doesn't say anything at all about that second order. [00:32:20] Speaker 00: We believe that first order should have been appealed within 30 days after it was entered. [00:32:25] Speaker 00: If HID wanted to proceed on these other grounds, it certainly was free to do so. [00:32:30] Speaker 00: It made the conscious decision to proceed on these other grounds only after losing did it come back to that first appeal. [00:32:37] Speaker 00: Again, Your Honor, I know this wasn't raised in the briefing. [00:32:41] Speaker 00: We'd be happy to submit some middle briefing. [00:32:42] Speaker 00: It would be helpful. [00:32:43] Speaker 00: But we believe, again, this is an issue that can't be raised and can't be waived under the Hamer ruling 582 U.S. [00:32:49] Speaker 00: 17. [00:32:51] Speaker 00: With that, I'll sit down unless you have further questions. [00:32:54] Speaker 03: Okay. [00:32:54] Speaker 03: Thank you. [00:32:59] Speaker 03: We'll restart two minutes, but you obviously need to. [00:33:02] Speaker 03: respond to, if you're able to, because I assume you hadn't heard this until we heard it just five minutes ago, right? [00:33:09] Speaker 03: Yes. [00:33:09] Speaker 03: You have any, I mean, I don't want to put you on the spot, and you feel an additional breaking glass for it, but do you have an initial answer for us that might resolve this? [00:33:20] Speaker 01: The initial answer, Your Honor, is that when Judge Holt issued his position on 285, he then asked us if we had any further briefing on the issue of recovery of attorney fees. [00:33:32] Speaker 01: And we said, yes, we would like, if you're not going to give us 285, that you also consider the inherent authority and Rule 11 and any other authority. [00:33:43] Speaker 01: We also surmised that Judge Holt would reanalyze the entire attorney fee situation in view of his previous ruling on 285 and he might change his mind, he might readjust his assessment based upon the later briefing on the other issues relating to attorney fees. [00:33:59] Speaker 01: The entire dispute was attorney fees. [00:34:01] Speaker 01: And so it was all of the issues of attorney fees. [00:34:03] Speaker 01: And that is part of the reason why there's the ancillary jurisdiction. [00:34:07] Speaker 01: That's why Judge Williams found that she had the ability to rule in 285. [00:34:12] Speaker 01: So we believe that Judge Holt would see in the later briefing that if he had authority under rule 11, or if he had authority under 285, [00:34:22] Speaker 01: rule 11 and his inherent authority, that he would also be able to rule with respect to 285. [00:34:28] Speaker 01: He did not. [00:34:29] Speaker 01: He did not change his mind. [00:34:30] Speaker 01: And so once that issue was finally and completely resolved, then we appealed. [00:34:35] Speaker 03: OK. [00:34:36] Speaker 01: Anything else? [00:34:37] Speaker 01: The last point, Your Honor, is OK. [00:34:40] Speaker 03: Well, we're going to need supplemental briefing. [00:34:47] Speaker 03: This is really an unfortunate circumstance. [00:34:49] Speaker 03: Ten days, no more than five pages single-staged. [00:34:57] Speaker 03: Five pages single-staged, ten days simultaneously. [00:35:01] Speaker 01: Thank you, Your Honor. [00:35:01] Speaker 01: It's a little deja vu, because after we won on 285, then GND also raised the jurisdictional issue under 285, and we had to do it all over. [00:35:09] Speaker 01: But with that, I do have one final comment. [00:35:12] Speaker 03: What happened there? [00:35:13] Speaker 03: There was an issue raised about jurisdiction then on timeliness. [00:35:18] Speaker 01: Yes, GMB raised the jurisdictional issue of 285 late in the court of federal claims. [00:35:24] Speaker 01: Correct. [00:35:24] Speaker 01: So it's a very similar situation as this. [00:35:29] Speaker 01: I see my light is red. [00:35:30] Speaker 03: No, go ahead. [00:35:31] Speaker 03: You get two minutes on it. [00:35:33] Speaker 01: Thank you, Your Honor. [00:35:34] Speaker 01: So on the issue of 285 and expanding the jurisdiction, we submit that it is not an expansion of jurisdiction in order for the Court of Federal Claims to exercise its ability to deal with ancillary issues. [00:35:46] Speaker 01: And then, Your Honor, on your question with respect to the prevailing party, I have found cases which I think would be instrumental. [00:35:53] Speaker 01: You know, in addition to the CRST and Rainier argument that I made earlier. [00:35:58] Speaker 03: When you say you have found cases, are they in your briefs? [00:36:02] Speaker 01: I just found them, and I was going to cite them to you if I could. [00:36:04] Speaker 03: Are they found in your briefs, or just found them out? [00:36:08] Speaker 01: They're not in the brief, Your Honor. [00:36:09] Speaker 03: So they're not? [00:36:10] Speaker 03: Well, OK, you can cite it. [00:36:12] Speaker 03: But it, again, puts your friend in a position to not have the ability to respond. [00:36:20] Speaker 01: Well, I can point that we did set to see our ST engineer. [00:36:23] Speaker 01: And those cases specifically say if there's a change in legal relationship, then you're a prevailing party. [00:36:29] Speaker 01: And then we had the three points of our change in relationship. [00:36:32] Speaker 01: We had a dismissal, we had no discovery against HID, and we were not joined to the case. [00:36:37] Speaker 01: So those are the changes of relationship. [00:36:39] Speaker 01: The two cases that I did find from the Federal Circuit is, and I won't cite them if you would not like me to, but I will note that they note [00:36:47] Speaker 01: that in one case there was a dismissal as moot not a dismissal without prejudice and that was found to be sufficient for prevailing party status and this court said one would not put form over substance in order to find a prevailing party status and then also there's another case where there was a decision where the issue related to [00:37:07] Speaker 01: whether or not there was a decision on numerics that was not a specific dismissal with prejudice. [00:37:13] Speaker 01: And there was another decision where this court said, we will not put form over substance in order to find a prevailing party status. [00:37:19] Speaker 01: So we would submit, Your Honor, under the cases that we did cite, that we have shown that we did have a change in the legal relationship under CRST and Rainier in order to achieve the status of a prevailing party. [00:37:32] Speaker 03: Thank you. [00:37:33] Speaker 01: Thank you, Your Honor. [00:37:34] Speaker 03: We thank both sides. [00:37:35] Speaker 03: The case is submitted. [00:37:40] Speaker 03: days to file five-page single-space briefs on this issue.