[00:00:00] Speaker 04: Our first case for argument is 22-2006, Cokie Holding versus the ITC. [00:00:07] Speaker 04: How do I say your name? [00:00:08] Speaker 04: Is it Parikh? [00:00:08] Speaker 04: Yes. [00:00:09] Speaker 04: Mr. Parikh, please proceed. [00:00:12] Speaker 02: Good morning, and may it please the court. [00:00:14] Speaker 02: My name is Amal Parikh, and I represent the appellant, Cokie Holdings, in this case. [00:00:20] Speaker 02: The commission violated Section 337C when it terminated the underlying investigation based on Kyocera's unilateral withdrawal of its complaint without deciding whether or not there was a Section 337 violation. [00:00:36] Speaker 02: the court should reverse the commission's termination and remand with instructions that the commission determine whether or not there was a violation based on the record. [00:00:46] Speaker 04: Before you get into those merits, though, I think that you should probably address the standing question, because that's sort of a threshold issue for us here. [00:00:53] Speaker 02: Yes, Your Honor. [00:00:55] Speaker 02: So in terms of standing, [00:00:59] Speaker 02: Koki has Article 3 standing for multiple reasons. [00:01:03] Speaker 02: The first is that Koki was injured by the commission's non-proclusive, ultra-various decision in which Koki lost its ability to succeed below, and which also allows Kyocera to bring a second investigation. [00:01:21] Speaker 00: But isn't that speculative? [00:01:22] Speaker 00: I mean, that's something future that might happen, might not happen. [00:01:25] Speaker 02: Kyocera has already threatened [00:01:28] Speaker 02: a second investigation against the same products that were the same product design that was accused in the first. [00:01:36] Speaker 04: Is that in this record? [00:01:37] Speaker 02: It is in the record. [00:01:38] Speaker 04: What is the threatened second investigation? [00:01:41] Speaker 04: Because was that before or after their email where they said they wouldn't do that? [00:01:46] Speaker 02: Well, the email says they would not [00:01:49] Speaker 02: bring a second investigation against the original products. [00:01:52] Speaker 02: We tried to clarify it to ask if they would bring a second investigation against the original product design and Kyocera refused. [00:01:59] Speaker 03: What is the distinction that you're trying to draw there though in terms of against the original products versus against the original product design? [00:02:06] Speaker 02: So in the ITC, the only relief that's available is prospective. [00:02:10] Speaker 02: It's in the future. [00:02:12] Speaker 02: But the ITC has jurisdiction over products that have been imported and products that will be imported in the future. [00:02:19] Speaker 02: What Kyocera has done is they've given us a release saying we will not accuse products that were subject to the first investigation, the actual product. [00:02:31] Speaker 02: But the product design itself, they have not given a release on that going forward. [00:02:36] Speaker 03: So there's a- I thought also another concern is you aren't really responding to them fully. [00:02:42] Speaker 03: in terms of what you intend to or currently plan to sell. [00:02:47] Speaker 03: Like I saw there was some discussion back and forth in the record on that. [00:02:49] Speaker 03: Can you clarify that for me? [00:02:51] Speaker 02: Right, so Koki would like the freedom to import that original product design going forward. [00:03:00] Speaker 02: Koki has essentially been coerced, because of a threat against that product design, from changing their business plan to now bring in that original product design. [00:03:13] Speaker 02: Koki would like the freedom to bring in the design, but because of the threatened investigation, there's this cloud hanging over Koki on, if they bring in that original product design, they'll be sued based on an investigation that Kira Serra has already threatened. [00:03:30] Speaker 00: about future products, not anything that's already happened. [00:03:35] Speaker 00: And I thought that's what the email says, you know, they submit it. [00:03:39] Speaker 02: It's future products of the same design that have already been accused of infringement and that there's been seven years of litigation involving. [00:03:47] Speaker 04: Show me where that is the case. [00:03:49] Speaker 04: Because I'll be honest, I read the email. [00:03:51] Speaker 04: And to me, it looked like they're not going to accuse this product. [00:03:56] Speaker 04: And I really understood this dispute to be more about if you did a redesign or a modified product, would that be within the scope? [00:04:02] Speaker 04: I didn't understand them to be saying, if you bring another identical product to this into the country next week, [00:04:09] Speaker 04: we're going to bring Sue to the end, Sue. [00:04:10] Speaker 04: So show me where that is. [00:04:13] Speaker 04: Where there's some evidence that this release is for more than just or only limited to these products. [00:04:21] Speaker 04: Do you understand? [00:04:22] Speaker 02: So if we look at appendix 4110. [00:04:25] Speaker 04: Yeah, I'm right there. [00:04:27] Speaker 04: Yeah. [00:04:27] Speaker 02: So that's the original email from Kistera where they say. [00:04:29] Speaker 04: Right. [00:04:30] Speaker 04: I got that. [00:04:30] Speaker 02: But it's not now or ever. [00:04:31] Speaker 04: I'm very familiar with that. [00:04:33] Speaker 02: OK. [00:04:33] Speaker 02: So if we go to my response, which is on 4109. [00:04:38] Speaker 04: OK. [00:04:42] Speaker 02: And we said that, so it's the fourth line from the bottom of the first paragraph where we sought clarification. [00:04:51] Speaker 02: And we said, we understand you to be saying that Kyocera does not plan to file a section 3 through 7 complaint. [00:04:58] Speaker 04: Yeah, I can't really find where you're at. [00:05:00] Speaker 04: I'm at 4109. [00:05:00] Speaker 04: Where's the we understand line? [00:05:02] Speaker 02: So the third line from the bottom of the first paragraph. [00:05:05] Speaker 04: Oh, the first page. [00:05:07] Speaker 04: We see third line from the bottom. [00:05:08] Speaker 04: People usually think that means the bottom. [00:05:09] Speaker 02: I'm sorry, I thought it was... That's okay. [00:05:11] Speaker 02: Third line from the bottom. [00:05:12] Speaker 02: No, no. [00:05:13] Speaker 02: Or second paragraph, I should say. [00:05:14] Speaker 04: I got it, down there. [00:05:16] Speaker 02: Okay. [00:05:16] Speaker 02: So it says, we, understanding, need to be saying that Kyocera does not plan to file a section three through seven complaint, premise on fire, shipments of the original products. [00:05:27] Speaker 02: but reserves the right to file a Section 337 complaint premised on ongoing and future shipments of the original products. [00:05:35] Speaker 02: And there was never any clarification, no response from Kyocera that Koki's understanding was incorrect, that they would bring a second investigation against shipments of future products of the original design, which are subject to the current investigation. [00:05:54] Speaker 04: Okay, if they agreed here today that, because I don't see them saying anything to contradict or support what you've said. [00:06:04] Speaker 04: So if today they say, listen, we thought we were clear. [00:06:07] Speaker 04: No, you can bring in as many of these original design products as you want. [00:06:12] Speaker 04: You modify them. [00:06:13] Speaker 04: That's a whole different ball of wax. [00:06:15] Speaker 04: But if it's the exact same design, have at it. [00:06:17] Speaker 04: And we're not suing. [00:06:18] Speaker 04: If they say that here today, do you then agree there's no standing? [00:06:21] Speaker 02: I think that they're still standing, one, because it comes too late. [00:06:25] Speaker 02: The Covenant Not to Sue comes too late, and we discussed this in our brief. [00:06:28] Speaker 04: Well, not if I understood the Covenant Not to Sue on 4110 to actually include all products of that design, right? [00:06:37] Speaker 04: And I kind of feel like the ITC, I don't know, that's kind of what I think, but we'll see. [00:06:44] Speaker 02: We tried to clarify that two years ago, and there's been no communication in the last two years. [00:06:50] Speaker 02: So I think on the record before us, QSR is reserving the right to bring a future investigation against ongoing shipments of the originally designed products. [00:07:06] Speaker 03: It feels like you've already got a win, but you're kind of disputing the way the win came in. [00:07:12] Speaker 03: I mean, why are you really here? [00:07:14] Speaker 03: Like, what is having you be motivated to come talk to three of us today? [00:07:19] Speaker 02: It's to achieve a preclusive decision at the ITC. [00:07:23] Speaker 02: If the case is remanded with instructions for the ITC to determine whether there's a violation or no violation, that decision of no violation would have a preclusive effect against the original product design and any colorable variations of that design. [00:07:40] Speaker 02: as it stands right now. [00:07:42] Speaker 03: Wait, wait, wait. [00:07:43] Speaker 03: You just added something in. [00:07:44] Speaker 03: I thought I heard something new. [00:07:46] Speaker 03: You talked about any colorable variations. [00:07:48] Speaker 03: I thought when we were just looking at these pages of the appendix, what I'm going to call a covenant not to sue. [00:07:55] Speaker 03: I'm just going to use that terminology because I feel like that's what was used in the briefing. [00:07:59] Speaker 03: It seemed like it was stated a little differently. [00:08:03] Speaker 02: The release, I agree with your honor, that the release is different, that it applies to the original products. [00:08:11] Speaker 02: What the release would not cover is ongoing shipments of the original design in the future, and it does not cover colorable variations of that product. [00:08:25] Speaker 02: To answer your question of what we're seeking, if it's remanded to the ITC with instructions that the ITC issue a violation, no violation decision, and we achieve a no violation decision, the ITC's order would cover the original products, future shipments of the original products having the same design. [00:08:45] Speaker 02: and colorable variations of that design. [00:08:47] Speaker 02: So the relief that would be sought on remand is much larger than the release that is, or the covenant, not to say that is... Yeah, but that's the speculative thing. [00:08:56] Speaker 04: You don't have a design. [00:08:57] Speaker 04: Like, you don't have another design. [00:08:58] Speaker 04: You haven't produced any evidence of it. [00:08:59] Speaker 04: That's the part that's speculative. [00:09:01] Speaker 02: We have the original design. [00:09:02] Speaker 04: Yes, right. [00:09:03] Speaker 04: But that's what we're going to try to get to the bottom of on the standing question is, [00:09:07] Speaker 04: whether or not their release is to the original design or not. [00:09:11] Speaker 04: But certainly the modified, the substantial modifications or whatever, that's all speculative. [00:09:16] Speaker 04: Sorry. [00:09:16] Speaker 02: That's out. [00:09:18] Speaker 02: So the issue becomes, because of the color variations, if we change the color of the product or give it a new product number, for instance, which we have done in the past, that would not be covered by the release. [00:09:30] Speaker 02: It would be covered by a remand or a determination of violation. [00:09:35] Speaker 04: But there's no evidence you're going to do any of that. [00:09:37] Speaker 04: You can't just speculate. [00:09:39] Speaker 04: If we did this, you provided no evidence of any [00:09:44] Speaker 04: potential change in products and future importation? [00:09:47] Speaker 02: I don't think we needed to provide evidence of that because there has been a prior importation of those products. [00:09:54] Speaker 02: And I would cite the court to the Grinch case, the Revolution case, and the Medimmune case that we discussed in our brief, and particularly the Revolution case, where the covenant not to sue did not cover future sales of the product, which had been [00:10:11] Speaker 02: They're accused of infringement. [00:10:13] Speaker 02: And in revolution, the court found that there was sufficient article free standing. [00:10:17] Speaker 02: In grit as well, there was no ongoing activity of alleged infringement. [00:10:23] Speaker 02: But there had been prior acts of infringement. [00:10:26] Speaker 02: And in that case, the court had found that there was jurisdiction. [00:10:30] Speaker 02: And then in metamune, which was in the context of a declaratory judgment action there, the court found that self-avoidance of an imminent injury, so stopping [00:10:41] Speaker 02: importation of a product because of the cloud that's hanging over what would happen with that importation. [00:10:47] Speaker 02: That was sufficient to confer standing because there had been a threat, a threat of infringement against the original product design and simply because the defendant stopped selling that design did not divest the court or the defendant of standing. [00:11:05] Speaker 00: So you think just a threat is sufficient to confer standing? [00:11:09] Speaker 02: Yeah, under those cases, it's the threat. [00:11:12] Speaker 02: And then in addition, the motion to intervene, where Kyocera intervened in this case because, and the basis of that was because they wanted to bring or could bring a new investigation against Koki or anybody else. [00:11:26] Speaker 02: But the fact that it's against Koki is additional evidence of a threat against Koki and the original product design, which was the subject or is the subject of the investigation. [00:11:37] Speaker 00: And does Koki currently import or plan to import the original tools? [00:11:42] Speaker 02: There's been, they'd like the freedom to import. [00:11:45] Speaker 02: The problem is it's the, because of this cloud of uncertainty that's hanging over it, that as soon as it imports the design, there could be an investigation and that second investigation is already... But they're not doing it right now. [00:12:00] Speaker 02: They're currently not doing it. [00:12:01] Speaker 02: They do it outside of the United States. [00:12:03] Speaker 02: They have the design. [00:12:05] Speaker 02: And what about modified tools? [00:12:06] Speaker 02: What's the plan for that? [00:12:08] Speaker 02: The modified tools are being imported currently into the United States. [00:12:12] Speaker 03: What about answering, though, the judge's question in terms of a plan to import the original? [00:12:18] Speaker 03: Is there a plan to? [00:12:19] Speaker 03: I understand they're not doing it. [00:12:21] Speaker 03: That's what you just answered. [00:12:22] Speaker 03: But is there a plan? [00:12:23] Speaker 02: I don't know if there's a definitive plan because of the threat of the investigation and the cloud that's hanging over. [00:12:30] Speaker 04: Yeah, but what you could have done and what we see in these cases along the lines of Judge Cunningham's question is, [00:12:34] Speaker 04: We usually see some sort of evidence, like a declaration by the CEO or the product developer saying, but for this cloud, we would bring these products in. [00:12:44] Speaker 04: And you don't have anything like that. [00:12:45] Speaker 04: That's why the speculative part is a problem for you. [00:12:48] Speaker 02: We don't have that. [00:12:49] Speaker 02: But again, I would point to the many million case, as well as the grid case, where there was no declarations that were provided. [00:12:56] Speaker 02: It was because the original products had been [00:13:01] Speaker 02: Introduced into the United States and imported into the United States then there was a threat of an enforcement action or an action against those There is no threat here QSR has already said that there was a threat and they've said that in there. [00:13:14] Speaker 04: Where's the threat? [00:13:15] Speaker 04: I don't see the threat where it was in the email and then tell me show me the threat [00:13:26] Speaker 02: So I'd again go back to 4109. [00:13:29] Speaker 02: That's you. [00:13:29] Speaker 02: 4109 is you. [00:13:31] Speaker 04: It's not them. [00:13:34] Speaker 04: They're not making a threat when you send an email. [00:13:41] Speaker 02: And then I would also point to Kyocera's motion for leave to intervene. [00:13:47] Speaker 02: And this is ECF number nine. [00:13:50] Speaker 04: I need to know what page in the appendix. [00:13:52] Speaker 02: That's not in the appendix. [00:13:53] Speaker 04: That's part of the... So you're now telling me they made a threat and you didn't give it to them? [00:13:57] Speaker 02: No, it's in the court's record. [00:13:58] Speaker 02: It's in the... Kiyosara's motion to intervene. [00:14:01] Speaker 02: So it's part of the court file. [00:14:03] Speaker 02: It's ECF number nine. [00:14:05] Speaker 04: So it's not in your appendix, but you filed something separate from your appendix? [00:14:09] Speaker 02: Kiyosara filed something separate when they tried to intervene into this case. [00:14:14] Speaker 04: Do I have that somewhere? [00:14:17] Speaker 02: For the record, I'd point the court to page 6 of Kyocera's motion to intervene, which is ECF number 9. [00:14:26] Speaker 02: And it states that Kyocera says, a determination in respect to the scope of the patents at issue, which may affect Kyocera Senko's ability to enforce those patents again at the commission, either against Koki or anyone else, is a determination in which Kyocera Senko has an interest. [00:14:42] Speaker 04: And that's when we try to- What you just read does not sound like a threat with regard [00:14:48] Speaker 04: to these products, it just sounds like they're saying, we reserved the right to enforce our patents. [00:14:52] Speaker 02: Right. [00:14:52] Speaker 02: And when we clarify, tried to clarify with Kyocera, are you reserving the right to file a complaint premised on ongoing and future shipments of the original product? [00:15:02] Speaker 04: Where did you try and clarify that? [00:15:03] Speaker 04: Is that this 4109? [00:15:04] Speaker 02: 4109. [00:15:05] Speaker 04: Yeah, but that's beforehand. [00:15:07] Speaker 04: You see, when we try to clarify, you make it sound like you asked them to clarify what they just said in this filing. [00:15:12] Speaker 04: This filing is later in time than this. [00:15:14] Speaker 04: So when you say something in 2022, you're not, what, am I missing something? [00:15:18] Speaker 02: Yeah, so the filing was August of 2022. [00:15:20] Speaker 02: The email correspondence was December 16th, 2026. [00:15:24] Speaker 02: So it's a few months after. [00:15:25] Speaker 02: Got it. [00:15:25] Speaker 02: So after all this happened, Koki wanted certainty. [00:15:28] Speaker 02: And I see I'm in my rebuttal time, if I could finish answering real quick. [00:15:32] Speaker 02: are we going to be sued if we bring these new products into the United States? [00:15:38] Speaker 02: Because QSR has already threatened an investigation. [00:15:41] Speaker 02: What new products? [00:15:42] Speaker 02: I'm sorry, the original new product with the original design. [00:15:47] Speaker 02: That was the clarification that Koki sought. [00:15:50] Speaker 02: And we did not get clarification. [00:15:53] Speaker 02: Koki did not get clarification of that. [00:15:55] Speaker 02: So in the email, we provided Kyocera with our understanding of what the release covers and that Kyocera reserves the right to file a complaint premised on ongoing and future shipments of the original products. [00:16:10] Speaker 02: QSR never responded to that. [00:16:12] Speaker 02: So it's that threat, that cloud, the sort of damocles hanging over Koki, that if we're going to bring these products in, are we going to be here? [00:16:22] Speaker 02: Is there going to be business disruption because there's going to be a new suit? [00:16:25] Speaker 04: All right, why don't you give one minute on why the commission, because I mean, I'll restore you about time. [00:16:29] Speaker 04: Give me one minute on why the commission erred by terminating the investigation. [00:16:32] Speaker 04: Because I don't want you to not be able to say it on my bundle if they talk about it. [00:16:36] Speaker 02: Understood. [00:16:38] Speaker 02: So we have to look at the statute, section 337C, which requires that the commission shall determine, with respect to each investigation conducted by it under this section, whether or not there is a violation. [00:16:50] Speaker 02: That shall language that the commission must determine whether or not there is a violation. [00:16:55] Speaker 02: There are three exceptions in paragraph C of section 337, which permits the commission to terminate. [00:17:02] Speaker 02: That's if there's an arbitration agreement, a consent agreement, or settlement by the parties. [00:17:06] Speaker 02: None of that exists here. [00:17:09] Speaker 02: And then really quickly, going to the commission's rule, under the commission's rule, which this court is not bound by, but the commission did not follow its own rules, the commission is permitted to terminate a [00:17:22] Speaker 02: have a complaint withdrawn before initial determination issues. [00:17:29] Speaker 02: Here, we've already had an initial determination issue. [00:17:32] Speaker 02: So that section does not apply. [00:17:35] Speaker 02: And then the other sections generally track the statute, which is a consent order and arbitration agreement or a settlement. [00:17:47] Speaker 02: So based on the commission's rules and the statute. [00:17:50] Speaker 04: OK. [00:17:51] Speaker 04: You went the past few minutes. [00:17:52] Speaker 04: Sit down. [00:17:53] Speaker 04: Let's have them up here now. [00:17:58] Speaker 04: Okay, who do I first, Mr. Richards? [00:17:59] Speaker 04: Yes. [00:18:04] Speaker 04: Okay. [00:18:04] Speaker 04: And Mr. Richards, are you... Which person do you represent? [00:18:08] Speaker 00: I'm for the commission, Your Honor. [00:18:09] Speaker 00: Okay. [00:18:11] Speaker 00: May it please the court? [00:18:13] Speaker 00: Can I switch the order? [00:18:14] Speaker 04: Would you object terribly if I asked him to go first? [00:18:17] Speaker 04: Because I care about standing, and he can answer those questions on standing, and you can't? [00:18:22] Speaker 00: No. [00:18:22] Speaker 04: Do you mind if I ask him to go first? [00:18:24] Speaker 00: Not at all. [00:18:25] Speaker 00: We're perfectly happy with whatever the court would prefer. [00:18:29] Speaker 00: I suppose I should have asked my counsel here, but good luck. [00:18:37] Speaker 01: Thank you, your honor. [00:18:39] Speaker 01: May it please the court. [00:18:40] Speaker 04: Hold on. [00:18:40] Speaker 04: Switch the time. [00:18:41] Speaker 04: Right? [00:18:43] Speaker 04: Is that right? [00:18:43] Speaker 04: OK. [00:18:43] Speaker 04: Good. [00:18:44] Speaker 01: Thank you, your honor. [00:18:45] Speaker 01: May it please the court. [00:18:46] Speaker 03: So is there a sword hanging over the neck? [00:18:50] Speaker 01: Not on any products that actually exist. [00:18:54] Speaker 01: So page seven of our brief, which is after the email exchange that my friend referenced, we say we underlined this on page seven of our brief. [00:19:03] Speaker 01: We folded it and underlined it for the court and for Koki. [00:19:07] Speaker 01: that Kyocera is not now or ever going to bring an action in the ITC again on either the original products accused or the modified tools that were subject to the modification proceeding. [00:19:22] Speaker 04: That's just the email. [00:19:23] Speaker 01: No, no, no, Your Honor. [00:19:27] Speaker 01: That is our position that we've represented now to the court, and I'm representing now to the court. [00:19:32] Speaker 04: And I need clarification on it. [00:19:34] Speaker 04: And the clarification is, are you just talking about these physical products previously produced, or if they make another identical product, same color, same serial number, no changes of any kind, and they try to bring it into the country? [00:19:51] Speaker 04: Are you reserving the right to sue them with the identical product? [00:19:55] Speaker 01: No, absolutely not. [00:19:56] Speaker 01: But when we're talking about original... We've got to release. [00:19:59] Speaker 04: So just to be crystal clear, you are going to be judicially stopped. [00:20:03] Speaker 04: I am making a very clear record here. [00:20:06] Speaker 04: You will never see them. [00:20:07] Speaker 04: You have coveted, and that's what I understood when I read your email, which is why I was worried. [00:20:12] Speaker 04: You have now coveted that on behalf of your client, you will never ask [00:20:16] Speaker 04: the commission to bar them from bringing in the identical product, I don't mean the same physical version, I mean a newly produced identical product. [00:20:27] Speaker 01: Absolutely, Your Honor, 100 percent. [00:20:30] Speaker 01: So the only question then is, my friend's concern about future products, which are of course... Future products which would be different in some way. [00:20:38] Speaker 01: Which would be different. [00:20:39] Speaker 01: Which would be different in some way. [00:20:40] Speaker 01: And we don't know what that difference is. [00:20:42] Speaker 01: We've got a laundry list in Koki's brief, I think on page 13 of their brief, of different nail magazines, different battery sizes, whatever, but there's nothing specific. [00:20:53] Speaker 01: We don't know. [00:20:54] Speaker 01: And this court has, and the Supreme Court has repeatedly said, conjectural or hypothetical injuries do not confer standing. [00:21:02] Speaker 01: So there is no tool that Koki can now not, that the commission could exclude. [00:21:09] Speaker 01: And if the court were to grant Koki's request in remand to the ITC, the ITC cannot on remand do anything that would enlarge any of Koki's rights. [00:21:21] Speaker 01: I don't think I have anything else that I could say, and I cede the rest of my time to my friend. [00:21:28] Speaker 04: Very good. [00:21:29] Speaker 04: Good choice. [00:21:31] Speaker 00: Your Honor, Benjamin Richards again. [00:21:39] Speaker 04: Your job's a little easier now. [00:21:42] Speaker 00: I have exceedingly little to say. [00:21:44] Speaker 00: I think most of the argument just fell out. [00:21:46] Speaker 04: Thank you. [00:21:46] Speaker 04: That's a really good argument. [00:21:48] Speaker 00: There's one case I can point you to that might give you still additional comfort. [00:21:53] Speaker 00: The sports brain life case lays out the scope of preclusive effect and would show that even these future products that are sort of being bandied about aren't going to be covered by preclusive effect here. [00:22:04] Speaker 00: That's the circuit's law on preclusive effect. [00:22:06] Speaker 00: Exactly. [00:22:08] Speaker 00: It doesn't cover future instances of infringement. [00:22:11] Speaker 03: So can you respond, though, to opposing counsel's argument that somehow you did something that you weren't allowed to do in terms of the commission? [00:22:19] Speaker 03: I know you also point to your rules and the like, but if you could just give me a little gloss on your response to the arguments that they raised in that regard. [00:22:28] Speaker 00: Sure. [00:22:29] Speaker 00: As I understand it, you're referring to the merits portion of this case. [00:22:32] Speaker 00: So essentially, counsel has represented [00:22:36] Speaker 00: The Commission couldn't dismiss this case once the complaint was withdrawn. [00:22:40] Speaker 00: Once the complaint was withdrawn and the complainant said, we don't want to go forward anymore, there was nothing left for the Commission to investigate. [00:22:47] Speaker 00: I think if there is one central error to the way that my friend reads the statute, [00:22:53] Speaker 00: It's taking this portion of 337C about shall determine out of context. [00:22:58] Speaker 00: The immediately preceding subsection 337B states that the investigation has to be predicated on one of two things, either a complaint or upon the commission's own initiative. [00:23:10] Speaker 00: Now, no one contends that the commission conducted this investigation on its own initiative. [00:23:14] Speaker 00: It was conducted on a complaint. [00:23:16] Speaker 00: But that complaint has now been withdrawn. [00:23:18] Speaker 00: We don't have a complaint that wants to go forward. [00:23:21] Speaker 00: And so the result is the commission rightly found that to try to force, I guess, complainants to move forward with a case they don't want to move forward to would just waste public resources. [00:23:30] Speaker 00: There is nothing there inconsistent with 337B, I'm sorry, 337C in the shall determine language, which deals with when the commission can terminate an investigation without a complainant's consent, i.e. [00:23:41] Speaker 00: when there is still a complaint. [00:23:44] Speaker 00: So that's the distinction I would make, Your Honor. [00:23:46] Speaker 00: Unless the Court has other questions, I'm also happy to cede the rest of my time back [00:23:50] Speaker 04: Thank you very much. [00:23:53] Speaker 04: Mr. Parikh will restore two minutes of rebuttal time. [00:24:03] Speaker 02: So this is the first time that we're hearing this post-termination statement that it would cover the original design and future products. [00:24:16] Speaker 02: Assuming that is the case, [00:24:18] Speaker 02: Two things. [00:24:19] Speaker 02: One, it would not cover color roll variations, which we would have gotten, Koki would have gotten on the termination. [00:24:26] Speaker 02: Second, and more importantly, if the court were to accept, and we discussed this in our brief of page 17, if the court were to accept the new release and dismiss [00:24:41] Speaker 02: the new release that covers future products, the appropriate mechanism would be to, and this is in the Deakins case and the Smith case, which we cite, that to remand the case back to the ITC with instructions to terminate with prejudice. [00:25:00] Speaker 02: Even if there's not going to be a violation or no violation finding, there still needs to be a termination with prejudice of the underlying information. [00:25:07] Speaker 00: Why is that necessary, since you have a binding admission [00:25:11] Speaker 02: way we cover the colorable differences, which is what Koki would have gotten had there had been a finding of violation or no violation. [00:25:20] Speaker 04: Yeah, but the ITC doesn't have to dismiss with prejudice. [00:25:23] Speaker 04: Honestly, I read that email as giving you the green light on the same products. [00:25:29] Speaker 04: You were [00:25:30] Speaker 04: saying your client was confused about it. [00:25:32] Speaker 04: He came in and clarified, with all due respect, I don't read it as a new admission. [00:25:35] Speaker 04: I read it as an admission they made. [00:25:37] Speaker 04: Could they have maybe made the language a tiny bit clearer? [00:25:40] Speaker 04: Yes, probably. [00:25:42] Speaker 04: But I read it that way to the start, which is why I was kind of so surprised that you felt otherwise. [00:25:47] Speaker 04: So in light of all that, ITC doesn't dismiss with prejudice in that case. [00:25:50] Speaker 04: The ITC was perfectly within its province to just dismiss. [00:25:55] Speaker 02: So I disagree with that for the reasons that we say in our brief, where under the statute, the ITC has to determine whether there's a violation or no violation, which is why the ITC does not dismiss with prejudice or without prejudice, because the statute requires the ITC to determine whether or not there is a violation. [00:26:14] Speaker 02: If the ITC determines, makes that determination, or when the ITC makes that determination, it has preclusive effect. [00:26:19] Speaker 04: And you continue to think the ITC has to do that even when [00:26:23] Speaker 04: The patentee has withdrawn all allegations. [00:26:26] Speaker 02: Based on a plain reading of the statute, yes, Your Honor. [00:26:28] Speaker 04: All right. [00:26:29] Speaker 04: We have your argument. [00:26:30] Speaker 04: I thank both counsels. [00:26:31] Speaker 04: This case is taken under submission.