[00:00:00] Speaker 03:
Our first case for today is 23-1095, real tech semiconductor versus the IPC.

[00:00:08] Speaker 03:
How do I say your name, counsel?

[00:00:10] Speaker 04:
Theo Angelus, your honor.

[00:00:11] Speaker 03:
Mr. Angelus, please proceed.

[00:00:12] Speaker 04:
Thank you, your honor.

[00:00:14] Speaker 04:
Good morning, and may it please the court, Theo Angelus, for appellant, Realtek Semiconductor Corporation.

[00:00:19] Speaker 04:
We're here today because JIVX wanted to keep Realtek in this case until the eve of trial.

[00:00:24] Speaker 04:
But to do so, it needed to lie about the operative infringement theory.

[00:00:29] Speaker 04:
That lie caused Realtek to incur significant fees and costs it otherwise would have avoided.

[00:00:33] Speaker 04:
And when the lie was exposed, Realtek sought sanctions based on established commission precedent and procedures.

[00:00:41] Speaker 04:
The LJ and the commission did not address the grounds for sanctions that Realtek raises here on this appeal.

[00:00:47] Speaker 04:
By failing to do so, the commission violated the APA and remand is required.

[00:00:52] Speaker 00:
What's in front of us now is not a challenge to the commission's denial of the sanctions

[00:01:02] Speaker 00:
request under part one.

[00:01:05] Speaker 00:
It's part one and part two.

[00:01:06] Speaker 00:
Part two is the sufficiency, and part one is where you have a right to do it.

[00:01:10] Speaker 00:
And that was rejected for two, you have no time in this reason, and another procedural reason, because you didn't send the proper letters, so as to give the other side an opportunity to cure the problem.

[00:01:23] Speaker 00:
And you don't appeal that first part.

[00:01:25] Speaker 00:
You just appeal the

[00:01:30] Speaker 00:
refusal to sua sponte, proceed with sanctions, right?

[00:01:36] Speaker 04:
So your honor, we are appealing the failure to consider the request under D-1-2, which is what is called the sua sponte, but there's an established procedure for a party to ask for sua sponte.

[00:01:45] Speaker 00:
Sure, and everybody can always ask a enforcer to do something, but

[00:01:52] Speaker 00:
That doesn't mean that sua sponte action to enforce is something other than committed to agency discretion by law.

[00:02:01] Speaker 04:
Well, to the contrary, Your Honor.

[00:02:02] Speaker 04:
There's a well-established procedure in the commission dating back to at least 2005.

[00:02:07] Speaker 00:
Why does that make the declining to exercise the enforcement authority something other than committed to agency discretion, the fact that there's a procedure for asking for it?

[00:02:22] Speaker 04:
So the universe of- It's like a prosecutor's office.

[00:02:24] Speaker 00:
We have a procedure.

[00:02:25] Speaker 00:
If you want us to initiate some prosecution, come file this piece of paper.

[00:02:30] Speaker 00:
That wouldn't make a decision just not to prosecute, review.

[00:02:34] Speaker 04:
So it's quite rare for an action to be committed to agency discretion.

[00:02:38] Speaker 04:
And there has to be a very strict reason for doing so.

[00:02:40] Speaker 00:
Except that the traditional class, that may even be almost the only class, is precisely a decision not to initiate enforcement action.

[00:02:50] Speaker 04:
So this is not that situation, Your Honor.

[00:02:51] Speaker 04:
So what the commission has consistently held is that D-1-2 is always available to address serious misconduct when D-1-1 is not available.

[00:03:00] Speaker 04:
And we also are appealing the idea that D-1-1 was improperly rejected because D-1-1 could not have applied in this situation.

[00:03:08] Speaker 04:
The nature of the Safe Harbor provision is such that it applies to- I don't understand.

[00:03:15] Speaker 03:
You didn't give a copy to opposing counsel.

[00:03:20] Speaker 03:
You didn't give them a copy of the notice.

[00:03:22] Speaker 03:
Isn't that a problem?

[00:03:24] Speaker 04:
It's not, Your Honor, because the situation is that the reason the safe harbor process exists, in an ordinary case with the sanctions proceeding, you would identify a frivolous pleading or a brief and serve a request for it to be withdrawn so the parties could avoid the harm that comes if it's withdrawn.

[00:03:42] Speaker 04:
Here the situation was the harm had already occurred retrospectively.

[00:03:45] Speaker 04:
So the harm couldn't have been avoided by a safe harbor provision.

[00:03:48] Speaker 04:
And the pleadings had already been withdrawn.

[00:03:50] Speaker 04:
This was serious misconduct that was hidden.

[00:03:52] Speaker 03:
The rule requires you to give it to them and give them an opportunity to see it respond to it.

[00:03:59] Speaker 03:
That's what the rule requires.

[00:04:00] Speaker 03:
The idea that you're saying the policy behind the rule wouldn't be able to be satiated in this case is irrelevant.

[00:04:08] Speaker 03:
The rule is the rule.

[00:04:10] Speaker 03:
You didn't follow the rule.

[00:04:12] Speaker 04:
So respectfully, Your Honor, it's for the commission to decide on whether the specific procedural posture here is outside the scope of D-1-1.

[00:04:23] Speaker 04:
And that wasn't something that the ALJ or the commission did address.

[00:04:26] Speaker 04:
But Judge Taranto was correct that the primary basis here on appeal is D-1-2.

[00:04:31] Speaker 04:
And that is not committed to agency discretion for the reasons we've talked about.

[00:04:34] Speaker 04:
In fact, sanctions rulings broadly under subsection H.

[00:04:39] Speaker 00:
an example in law where a decision maker's authority to do something sua sponte is reviewable?

[00:04:51] Speaker 04:
Absolutely, Your Honor.

[00:04:52] Speaker 04:
We've cited the Fuller versus the Whitaker case from the Seventh Circuit.

[00:04:56] Speaker 04:
That's in our brief on the Blue Brief on page 26.

[00:04:58] Speaker 00:
That was an immigration case.

[00:05:00] Speaker 04:
It was an immigration case, Your Honor.

[00:05:01] Speaker 04:
That's right.

[00:05:02] Speaker 00:
And the government has a very long and somewhat hard to understand footnote about that.

[00:05:06] Speaker 04:
I agree that's correct.

[00:05:07] Speaker 05:
I'm having a hard time understanding how you even have standing right now.

[00:05:12] Speaker 05:
So can you discuss that?

[00:05:14] Speaker 05:
I don't see any harm to you.

[00:05:16] Speaker 05:
You weren't a party to the case, to the investigation.

[00:05:21] Speaker 05:
You're going to have to win me over on that.

[00:05:24] Speaker 04:
Certainly, Your Honor.

[00:05:24] Speaker 04:
Let me try to convince you.

[00:05:25] Speaker 04:
So Realtek suffered real financial harm in the form of fees and costs it incurred and wouldn't have had to had there not been these false statements and false representations that were made.

[00:05:34] Speaker 04:
So remember the timeline here.

[00:05:36] Speaker 04:
On June 30, the ALJ ruled that what I'll call the operative, the primary theory, the new theory.

[00:05:43] Speaker 05:
Who would have incurred the attorney's fees and the costs?

[00:05:47] Speaker 04:
Realtek did, Your Honor.

[00:05:48] Speaker 04:
Realtek incurred those fees and costs at least from June 30th to the time that the complaint was filed.

[00:05:52] Speaker 04:
Because of the motion you filed?

[00:05:54] Speaker 04:
I'm sorry, Your Honor?

[00:05:54] Speaker 04:
The motion you filed?

[00:05:56] Speaker 04:
because of the motion that you found no no your honor we were on the eve of trial we were going full board for trial we had experts involved we had incredible fees and cost being incurred all on this idea did this could keep us in the case and did this could proceed under the what it was to the old theory because it it it it argued that the new theory was part of the old theory and that was simply false it was exposed to be completely false at the trial

[00:06:22] Speaker 04:
And it wasn't exposed until July 12.

[00:06:24] Speaker 05:
Let's look at the same question in another direction.

[00:06:27] Speaker 05:
Where's the redressability here?

[00:06:29] Speaker 04:
So the recovery of money is always redress for the fees and costs that were incurred.

[00:06:35] Speaker 04:
We've cited the spring communications case.

[00:06:37] Speaker 04:
It doesn't matter that Realtek plans to use that money for something else.

[00:06:41] Speaker 04:
It plans to donate it for purposes of vindicating the deterrence that's talked about in the commission's rules.

[00:06:47] Speaker 00:
Do I remember right that the government says, actually, you can't get any of this money at all?

[00:06:52] Speaker 00:
Well, even if you distribute it among your family or some organization, you just can't get the money.

[00:07:00] Speaker 04:
The government does say that, Your Honor.

[00:07:01] Speaker 04:
But the only, the commission explicitly addressed the government's arguments here.

[00:07:05] Speaker 04:
So remember, DIVIX made these same arguments to the commission.

[00:07:08] Speaker 04:
And on Appendix page 24, the commission says, that's open to reasonable dispute.

[00:07:13] Speaker 04:
Whether Realtek can get the money or not is open to reasonable dispute.

[00:07:17] Speaker 03:
I thought rule 210.4 D2

[00:07:21] Speaker 03:
expressly forbids the commission from imposing monetary sanctions unless, quote, the commission or the ALJ issues an order to show cause before the investigation or related proceeding is terminated.

[00:07:34] Speaker 03:
So this proceeding was terminated.

[00:07:36] Speaker 03:
So how is it that the commission can impose monetary sanctions?

[00:07:40] Speaker 03:
if their own authority to do so is only prior to termination of a proceeding.

[00:07:45] Speaker 04:
So that issue was presented to the Commission down below, and the Commission ruled on Appendix Page 24 that whether Realtek could recover sanctions because monetary sanctions under D2 were available or not was subject to, quote, reasonable dispute.

[00:07:58] Speaker 04:
And that's, again, on page 24 of the appendix.

[00:08:00] Speaker 05:
It cannot award money in this instance, right?

[00:08:07] Speaker 04:
No, I disagree, Your Honor.

[00:08:08] Speaker 04:
The commission will have to make that determination in the first instance.

[00:08:11] Speaker 04:
But the only time the commission has ruled on this question is in response to that argument that DIVIX itself made down below.

[00:08:17] Speaker 04:
And it said that that's an open question as to whether.

[00:08:20] Speaker 03:
Perfectly.

[00:08:20] Speaker 03:
Why does the commission have to rule on it in the first instance?

[00:08:22] Speaker 03:
It's a question of law.

[00:08:24] Speaker 04:
Well, Your Honor.

[00:08:25] Speaker 03:
There's a question of law, and there's a really clear rule.

[00:08:27] Speaker 03:
It says they can't give money after something's terminated.

[00:08:30] Speaker 03:
I don't see why I have to send that back.

[00:08:31] Speaker 04:
Well, the Commission rules that under our... They might say it's up in dispute.

[00:08:35] Speaker 03:
Don't look like there's any dispute to me.

[00:08:36] Speaker 03:
Rule says it pretty clear.

[00:08:38] Speaker 04:
So, Your Honor, you're in a situation where you have, at proceeding a request that was made, while the case was alive, while the party who would have to pay sanctions was still a party, and the sanctions ruling happened, the ALJ didn't rule on it in the time

[00:08:50] Speaker 04:
And so it would be very odd to say that the reviewing court can't address an error that occurred down below, because the reviewing court didn't rule on it in time.

[00:09:01] Speaker 04:
And the commission, those are the arguments that were made to the commission below.

[00:09:04] Speaker 04:
And the commission's rules, the commission has great deference under our and to how it interprets its rules.

[00:09:09] Speaker 05:
The commission cannot give you an award.

[00:09:12] Speaker 05:
And that's why you say that if it did give you any money, that it should go to this

[00:09:19] Speaker 05:
charitable fund or something.

[00:09:21] Speaker 05:
That's your way of responding to the question of whether you're entitled to any monetary award or not.

[00:09:28] Speaker 04:
No, I respectfully disagree, Your Honor.

[00:09:29] Speaker 04:
I think we think it's an open question about what kind of monetary award the Commission can give us, and the Commission has said so in its ruling.

[00:09:38] Speaker 05:
Okay, so are you saying that they're required, obligated?

[00:09:42] Speaker 05:
to make a monetary award.

[00:09:44] Speaker 04:
Absolutely not, Your Honor.

[00:09:46] Speaker 04:
We don't believe they're obligated, but it's an exercise of discretion that has not yet occurred.

[00:09:50] Speaker 03:
I don't understand.

[00:09:50] Speaker 03:
Let me go back for a sec.

[00:09:52] Speaker 03:
You told me that, am I mistaken?

[00:09:55] Speaker 03:
Did you tell me that Realtek's motion was pending before the commission before the proceeding was terminated?

[00:10:01] Speaker 04:
It was, Your Honor.

[00:10:03] Speaker 04:
We brought this proceeding.

[00:10:04] Speaker 04:
We brought the motion for sanctions in October.

[00:10:06] Speaker 00:
Your motion was in October.

[00:10:08] Speaker 00:
Was it the termination in July?

[00:10:10] Speaker 04:
No.

[00:10:10] Speaker 04:
Well, Realtek was removed from the proceeding, but Realtek's customer remained part of the proceeding.

[00:10:15] Speaker 04:
The proceeding was alive.

[00:10:16] Speaker 04:
And that rule requires that the party against whom sanctions are awarded to still be in the case, which was the case here.

[00:10:24] Speaker 04:
Divics remained part of the case when the sanctions motion was filed.

[00:10:33] Speaker 05:
When exactly did you file your motion?

[00:10:36] Speaker 05:
It was after the investigation was terminated, right?

[00:10:39] Speaker 04:
No, Your Honor, it was not.

[00:10:40] Speaker 04:
The investigation continued well into 2022.

[00:10:44] Speaker 04:
It wasn't until April 22nd, I believe, 2022, that the investigation was terminated, and the motion was filed in October of 2021.

[00:10:52] Speaker 00:
But after the investigation, with respect to you, was terminated.

[00:10:57] Speaker 04:
Well, the complaint was withdrawn with respect to Realtek.

[00:11:00] Speaker 04:
But Realtek remained a party.

[00:11:01] Speaker 04:
Yeah, Realtek was a party.

[00:11:03] Speaker 04:
So the question about whether Realtek remained a party for purposes of seeking sanctions was also presented to the commission.

[00:11:08] Speaker 04:
And it also said that was open to reasonable dispute on page 24.

[00:11:12] Speaker 04:
And so this is a good piece.

[00:11:14] Speaker 03:
How can you remain a party after something has been dismissed us to you?

[00:11:18] Speaker 04:
We were an identified party.

[00:11:20] Speaker 04:
Our technology was still at issue in the case.

[00:11:23] Speaker 03:
How do you remain?

[00:11:24] Speaker 03:
I mean, a party is a legal concept.

[00:11:28] Speaker 03:
that seems pretty binary to me.

[00:11:32] Speaker 03:
How are you a party to a proceeding when you've been dismissed?

[00:11:37] Speaker 04:
Well, the proceeding itself continued, Your Honor.

[00:11:39] Speaker 04:
And whether we were a party for purposes of the sanctions motion.

[00:11:42] Speaker 05:
But you were dismissed from the proceeding.

[00:11:45] Speaker 04:
We were dismissed from the proceeding.

[00:11:46] Speaker 05:
OK.

[00:11:47] Speaker 04:
But for purposes of the sanctions motion.

[00:11:48] Speaker 05:
What date would you say you were dismissed?

[00:11:51] Speaker 04:
I believe it was July 6th of 2021.

[00:11:54] Speaker 05:
When did you file your motion?

[00:12:00] Speaker 04:
In October of 2021.

[00:12:02] Speaker 05:
After you were dismissed.

[00:12:03] Speaker 04:
That's correct, Your Honor, because the misconduct didn't come alive.

[00:12:05] Speaker 05:
We've been asking you this question for quite a while now.

[00:12:08] Speaker 05:
We finally got an answer.

[00:12:10] Speaker 05:
You filed your motion after you were out of the investigation.

[00:12:14] Speaker 04:
After the complaint was withdrawn, that's correct, Your Honor.

[00:12:17] Speaker 04:
But for purposes of whether we're a party under the rule, the commission said there's reasonable dispute.

[00:12:22] Speaker 05:
It gets kind of frustrating, Counselor.

[00:12:24] Speaker 05:
I mean, it really sounds like you're hiding the ball here.

[00:12:27] Speaker 05:
And you're wasting a lot of time when we should be listening to the merits of your case, trying to decipher exactly why you

[00:12:38] Speaker 05:
You take a position that's not supported by the record.

[00:12:41] Speaker 04:
Okay, just I just wanted to let you know that Well, I appreciate that your honor and I apologize if you believe I've done that I am I apologize I have done that I'm trying to answer your question honestly But I will say this your honor respectfully the Commission was presented with this argument Can real tech is real tech a party for purposes of seeking sanctions?

[00:13:00] Speaker 03:
You're using your rebuttal time which you're free to do.

[00:13:02] Speaker 04:
Yeah, I'll reserve the rest of my rebuttal time.

[00:13:04] Speaker 04:
Thank you your honor.

[00:13:04] Speaker 04:
I appreciate it

[00:13:12] Speaker 02:
Good morning, Carl Bretcher for the International Trade Commission and it flees the court.

[00:13:17] Speaker 02:
I'd like to start with this question that came up about the chronology.

[00:13:21] Speaker 02:
Realtek's Council was talking about they filed a motion in October of 2021.

[00:13:25] Speaker 02:
That motion did not contain a request for the show cause order.

[00:13:30] Speaker 02:
So the motion was denied and I think it was

[00:13:34] Speaker 02:
By April of 2022.

[00:13:35] Speaker 00:
It was just in the background description of general power as a reference to the Suez Monte power.

[00:13:43] Speaker 02:
Exactly.

[00:13:44] Speaker 02:
It was in the legal standards section that this court sees in briefs that come forward all the time.

[00:13:49] Speaker 02:
It was not an argument or a statement.

[00:13:51] Speaker 03:
It was waived.

[00:13:52] Speaker 02:
Right.

[00:13:52] Speaker 03:
Yep.

[00:13:53] Speaker ?:
Go ahead.

[00:13:53] Speaker 02:
So Realtek actually did not make an explicit request for a show cause order until it filed its petition for commission review of the order denying the actual sanctions motion.

[00:14:06] Speaker 02:
That request for the show cause order was, as I said, June.

[00:14:12] Speaker 02:
That was about a month after the whole case had been terminated.

[00:14:14] Speaker 02:
So not only had Realtek been terminated in, I think, June of 2021, the whole case had been terminated

[00:14:21] Speaker 02:
by, I believe, May of 2024.

[00:14:26] Speaker 02:
It was about a month before they, or at least several weeks before they even asked for a show cause order.

[00:14:30] Speaker 02:
So there's no way the commission can now go back and award any monetary sanctions, because the request for a ship cause order wasn't even made before the case was terminated, let alone in it.

[00:14:43] Speaker 03:
So just let me make sure I tie this with a bow.

[00:14:46] Speaker 03:
So you're saying that even if there's a question about whether Realtek remained a party to the proceeding after being dismissed,

[00:14:58] Speaker 03:
They surely didn't remain a party because the entire proceeding was terminated before they filed their show cause order.

[00:15:05] Speaker 02:
That's exactly right.

[00:15:06] Speaker 02:
Very good.

[00:15:11] Speaker 02:
I'd like to turn to another point just to reiterate.

[00:15:14] Speaker 02:
The sanctioned motion is the vehicle that the party uses to try to get redress for alleged misconduct.

[00:15:21] Speaker 02:
As this court is well aware, that motion was found to be untimely.

[00:15:25] Speaker 02:
It violated safe harbor rules.

[00:15:28] Speaker 02:
So Realtek should have appealed from that denial.

[00:15:33] Speaker 02:
They didn't.

[00:15:34] Speaker 02:
They focused solely on this question of suespawning relief.

[00:15:39] Speaker 00:
And for a number of reasons, I would say appeal you meant to us or to the full commission?

[00:15:43] Speaker 02:
I'm sorry, I mean to this court.

[00:15:46] Speaker 02:
They're opening brief on the talks about the show cause for the alleged denial of that request.

[00:15:53] Speaker 02:
And I don't think they said anything about appealing the sanctions motion, the denial of that motion.

[00:15:59] Speaker 02:
So if we're focusing solely on this alleged request for a show cause order, we've laid out multiple reasons in our brief why this court does not have jurisdiction.

[00:16:09] Speaker 02:
There is no final determination in this case.

[00:16:12] Speaker 00:
As your Honor pointed out... Can I ask you about that?

[00:16:16] Speaker 00:
So in normal case, in district court,

[00:16:22] Speaker 00:
that is appealable to regional court of appeals.

[00:16:27] Speaker 00:
Only final decisions are appealable.

[00:16:33] Speaker 00:
Sanctions can be awarded after the final decision on the merits, and the decision on sanctions clearly is appealable.

[00:16:40] Speaker 00:
So why would we not interpret 1337 the same way here, just as to our jurisdiction, with a reference in 1295 to 1337?

[00:16:54] Speaker 02:
Yes.

[00:16:55] Speaker 02:
1337c says there's four final determinations that are

[00:17:03] Speaker 02:
appealable to this court, D, E, F, and G, basically those dealing with exclusion orders, cease and desist orders, preliminary relief, and default.

[00:17:11] Speaker 00:
And then there's a specific reference to sanctions under age.

[00:17:15] Speaker 02:
There is, but that is a reference to the standard of review under 706.

[00:17:20] Speaker 02:
It doesn't say this is separately appealable to this court, like the sentence I just referred to.

[00:17:26] Speaker 02:
It just says it would be reviewed.

[00:17:28] Speaker 02:
Now, there are cases, of course, where there's a final determination, and sanctions may be ancillary to that, and it gets swept up and comes to this court.

[00:17:36] Speaker 02:
There's also the organic chemia case that we cite, where there was a sanction that was in the form of a default judgment.

[00:17:42] Speaker 02:
That's appealable to this court.

[00:17:44] Speaker 02:
But if it's just a sanctions ruling hanging in thin air, and particularly when it's a termination of the rest of the case, if it's reviewable at all, it allegedly or hypothetically might go to a district court in a manner that you're not able to describe.

[00:17:58] Speaker 00:
Do we have to reach that issue or standing in order to decide either the non-reviewability because of commitment to agency discretion or the waiver question?

[00:18:14] Speaker 02:
I believe this court would have to satisfy itself in that jurisdiction.

[00:18:17] Speaker 02:
And standing is also a constitutional requirement, so I think you would have to address both of those, or at least one of the other.

[00:18:26] Speaker 02:
But the jurisdiction issue could be addressed by referring to VSCOFAN, the related cases where it lays out this discussion of the one sentence that's the jurisdiction sentence and the other two that are referred to the standard review.

[00:18:45] Speaker 02:
So this court has already ended that kind of analysis.

[00:18:52] Speaker 02:
We address other issues in our brief that did not really come up today.

[00:18:56] Speaker 02:
I'm happy to answer any questions about those and any other questions the square has.

[00:19:01] Speaker 02:
It's pretty clear there's no standard, there's no jurisdiction, and there's no other flaws to say.

[00:19:07] Speaker 00:
And you take the position which we were discussing before that because an actual request under 2, the Suez-Monte provision, was not made until, in fact, the entire proceeding was

[00:19:25] Speaker 00:
I was terminated in April and this request that is by way of appeal to the commission from the ALJ was not until June of 2022.

[00:19:37] Speaker 00:
That relief could not in fact be granted and therefore no standard.

[00:19:43] Speaker 02:
The monetary relief certainly cannot be granted, and there is no obligation or requirement for the commission to do anything else to respond.

[00:19:53] Speaker 00:
Why is there not standing to seek?

[00:19:57] Speaker 00:
Because Realtek would benefit from non-monetary ruling on sanctions.

[00:20:05] Speaker 00:
Well, I think they want, I don't know, I'm not quite sure what the non-monetary relief is, but something from the ALJ saying the witnesses from the other side lied.

[00:20:16] Speaker 02:
Right.

[00:20:19] Speaker 02:
Well, there's multiple problems with this.

[00:20:22] Speaker 02:
This is again, a commission doesn't have to say anything when a case is over.

[00:20:26] Speaker 02:
It would be discretionary.

[00:20:27] Speaker 02:
But assuming that it was compelled to do that.

[00:20:31] Speaker 03:
One thing you haven't said yet, and I don't think you're going to do real tech, ask for non-monetary sanctions.

[00:20:37] Speaker 03:
I don't remember them doing that.

[00:20:38] Speaker 03:
I remember them asking for monetary sanctions.

[00:20:41] Speaker 02:
Honestly, every time you read one of their briefs, their request for relief changes.

[00:20:44] Speaker 02:
They're opening sanction motions about fees.

[00:20:47] Speaker 02:
And when you get down to the reply brief to this court, they're talking about,

[00:20:52] Speaker 02:
They would like some kind of writing from the commission debunking what was said at the hearing.

[00:20:56] Speaker 03:
I know, but what they argue in their briefs to us is not relevant.

[00:21:00] Speaker 03:
It's what they asked for below.

[00:21:02] Speaker 03:
I mean, did they below ask for non-monetary sanctions?

[00:21:07] Speaker 02:
I think they asked for some form of a writing that would debunk what was said at the hearing.

[00:21:12] Speaker 02:
But again, Realtek was not a party at that time.

[00:21:15] Speaker 02:
So whatever was said at the hearing,

[00:21:18] Speaker 02:
was irrelevant as far as any alleged damages at standings.

[00:21:21] Speaker 02:
And then there's the whole issue about Realtek was concerned about how this testimony would be used in a parallel proceeding in Delaware.

[00:21:29] Speaker 02:
Well, they never introduced those remarks in Delaware.

[00:21:32] Speaker 02:
That case was dismissed.

[00:21:33] Speaker 00:
Right, but the special is on appeal.

[00:21:36] Speaker 02:
It's on appeal, but even if the case comes back allegedly and is refiled,

[00:21:40] Speaker 02:
Their relief lies in Delaware.

[00:21:41] Speaker 02:
It's not going to be in the commission.

[00:21:43] Speaker 02:
There's nothing the commission can really do with that.

[00:21:45] Speaker 05:
Councilor, you would agree that sanction motions are appealable, correct?

[00:21:53] Speaker 02:
If it's part of a final determination or equivalent to a final determination as laid out in 337C, then yes.

[00:22:01] Speaker 05:
It has to be final in order to be appealable?

[00:22:05] Speaker 02:
Ancillary to a final determination or equivalent to one, like a default judgment might be entered in some cases for exfoliation of evidence or something like that.

[00:22:16] Speaker 03:
But you're not, just to be clear, you're not conceding right now that the agency's decision not to pursue sanctions in a suesponte basis is in fact appealable.

[00:22:27] Speaker 02:
We're saying it's not appealable to this court, not appealable to any court, not reviewable.

[00:22:31] Speaker 03:
I just want to make sure that I wasn't confused about what you were saying.

[00:22:34] Speaker 02:
Thank you.

[00:22:35] Speaker 02:
I'm sorry.

[00:22:35] Speaker 03:
No, that's okay.

[00:22:36] Speaker 03:
Okay.

[00:22:36] Speaker 03:
Let's hear from the other side.

[00:22:38] Speaker 03:
I think we're gonna at this point in six minutes from the other party side No, no six, excuse me Good morning, your honors.

[00:22:55] Speaker 01:
Bill Munier for intervene intervener give X There's a lot of possible angles to talk about right now

[00:23:03] Speaker 01:
Obviously, I'll talk about whatever you want.

[00:23:04] Speaker 01:
But I'm going to try to address some of the questions that have come in.

[00:23:07] Speaker 01:
And maybe that hasn't been the clearest answer.

[00:23:10] Speaker 01:
With regards to whether there was a request for any sanctions other than monetary, in the motion to the ALJ, there was not.

[00:23:20] Speaker 00:
Their whole appeal is based on- Usually, I like to hear, and if you look at the appendix at page right after that sentence,

[00:23:31] Speaker 01:
Give me one second, Your Honor.

[00:23:34] Speaker 01:
I'm just trying to turn the page to that.

[00:23:35] Speaker 01:
I've got it right here.

[00:23:41] Speaker 01:
Here we go.

[00:23:43] Speaker 01:
So if you look at their motion and the attached memo to the ALJ, it starts out at appendix 2024.

[00:23:54] Speaker 01:
where they just, the start of their memo, respectively moved for sanctions.

[00:23:58] Speaker 01:
Nothing about an order to show cause there.

[00:24:00] Speaker 01:
Just they're moving for sanctions.

[00:24:02] Speaker 01:
And then you can.

[00:24:02] Speaker 00:
OK, so this is the same document we were talking about before, where there's a reference to the Suez-Monte power in the background?

[00:24:10] Speaker 00:
Exactly, Your Honor.

[00:24:12] Speaker 01:
And not a request for an order to show cause, but just a mention then that they're, I'll quote them, the ALJ also has the inherent power to police misconduct before her.

[00:24:23] Speaker 01:
even when citing to that rule they're not asking for an order to show cause.

[00:24:29] Speaker 01:
But I think the most telling part is when you get to Appendix 2057, which is the last page of that memo.

[00:24:36] Speaker 01:
And remember, so far they've said, we're moving for sanctions.

[00:24:39] Speaker 01:
What they say there is, sanctions in the form of compensation for attorney's fees unnecessarily spent are necessary.

[00:24:47] Speaker 01:
Conclusion, for the reasons set forth above, Realtek respectfully requests that the ALJ award Realtek its costs and fees.

[00:24:57] Speaker 01:
That's all they saw were monetary sanctions.

[00:25:01] Speaker 00:
Can I?

[00:25:02] Speaker 01:
Sure.

[00:25:06] Speaker 00:
with a benefit they would hope to get out of sanctions here, a benefit for the Delaware proceeding, which has so far been, I guess, dismissed without prejudice.

[00:25:18] Speaker 00:
And that's really what should be dismissed with prejudice.

[00:25:21] Speaker 00:
But is there anything that you think

[00:25:28] Speaker 00:
that they would be foreclosed from doing in criticizing the evidence from the ITC record to the extent that was to be offered into the Delaware case that somehow would be adversely affected by whether the ITC now says itself that that testimony was bad.

[00:25:57] Speaker 01:
The short answer is absolutely not, Your Honor, in this hypothetical district court litigation.

[00:26:02] Speaker 01:
Because as you know, it's been dismissed.

[00:26:05] Speaker 00:
But that's on appeal.

[00:26:06] Speaker 00:
It's not hypothetical.

[00:26:07] Speaker 01:
Well, what's on appeal is whether it's with prejudice.

[00:26:11] Speaker 00:
It was dismissed without prejudice.

[00:26:13] Speaker 00:
They're appealing here.

[00:26:14] Speaker 00:
It said it should be actually dismissed, finally, really dead, not

[00:26:20] Speaker 01:
Not almost yet.

[00:26:21] Speaker 01:
Fair enough, your honor.

[00:26:22] Speaker 01:
But so let me focus.

[00:26:24] Speaker 01:
Let me put that aside.

[00:26:25] Speaker 01:
To answer your question, there's nothing that would prevent them from criticizing the testimony from the hearing that they're saying was false and letting that district court judge know, here's why we think it was false.

[00:26:37] Speaker 01:
But there's also no reason they would have to do that at all, because I want to be very clear.

[00:26:42] Speaker 01:
The testimony they're complaining about is not as false, which it was not.

[00:26:48] Speaker 01:
But the testimony they're saying is false didn't concern, here's why Realtek infringes.

[00:26:53] Speaker 01:
Here's why anybody infringes.

[00:26:55] Speaker 00:
It was a procedural.

[00:26:55] Speaker 00:
It had to do with whether the theory was originally presented or whether it was changed.

[00:26:59] Speaker 01:
Exactly, which would have no relevance in a district court case whether an ITC

[00:27:03] Speaker 01:
contention deadline was met for a certain theory or not.

[00:27:06] Speaker 01:
It's not going to matter in the district court.

[00:27:08] Speaker 01:
So the fear of having to fight this testimony is an imaginary one.

[00:27:18] Speaker 01:
So they did not request an order for show cause.

[00:27:22] Speaker 01:
Their other complaint is that the ALJ ignored that non-existent order to show cause.

[00:27:28] Speaker 01:
I guess I would just say that to the extent their motion did include such a request for an order to show cause, then the ALJ fairly addressed it, because she said the motion as a whole was dilatory.

[00:27:42] Speaker 01:
She then went on to say, and by the way, you didn't comply with the safe harbor requirements,

[00:27:48] Speaker 01:
that are required to make such a motion for sanctions that's now before her.

[00:27:52] Speaker 01:
But she also said that the motion as a whole was dilatory, and the commission agreed with that and adopted that finding.

[00:27:59] Speaker 01:
So to the extent they're saying that the motion did include some sort of request for an order to show cause, which again is the only thing they're appealing right now, that they had a request for an order to show cause and that she ignored it.

[00:28:13] Speaker 01:
To the extent that motion included it, the way they're arguing right now, she said the motion itself was dilatory, that it was untimely, because it was after they were terminated.

[00:28:22] Speaker 01:
Well, excuse me.

[00:28:23] Speaker 01:
It was after they were terminated, but it was more than two and a half months after the testimony that they're complaining about.

[00:28:28] Speaker 01:
There's no argument from them, and there can't be any reasonable argument from them, that that conclusion was arbitrary and capricious, that they waited too long to file their motion.

[00:28:41] Speaker 01:
Even if you give them the benefit of the doubt, the second part of their argument, that it was just completely ignored, is that there's no basis for that either.

[00:28:49] Speaker 01:
And I'm running out of time, so if there's no further questions.

[00:28:54] Speaker 01:
Thank you very much.

[00:29:03] Speaker 04:
Thank you, Your Honor.

[00:29:03] Speaker 04:
Just a few points to clarify.

[00:29:05] Speaker 04:
I believe that the Commission Council may have misspoken about when this case ended.

[00:29:09] Speaker 04:
The sanctions motion was in October of 2021.

[00:29:13] Speaker 04:
and the order ending this case was April 2022.

[00:29:16] Speaker 00:
Right, but his, I'm sorry, his point was that you didn't make, assuming that he's reading your October motion correctly, you didn't make a request for the exercise of suespondenting power in that motion.

[00:29:28] Speaker 00:
You didn't do that until your June 2021, no 2022, filing requesting review by the full commission.

[00:29:37] Speaker 04:
So we respectfully disagree, and here's why, Your Honor.

[00:29:40] Speaker 04:
So on 2042-43, we outlined the parallel requests for sanctions under D-11 and D-12.

[00:29:46] Speaker 04:
Here's DIVIX's response, and I'm quoting their language from page 2088.

[00:29:50] Speaker 04:
They refer to Realtek's quote, parallel request to the court

[00:29:55] Speaker 04:
to enter an order of sua sponte under 210.4d12.

[00:30:01] Speaker 04:
So Divix is responding to the motion for sanctions by saying, Realtek is asking for a parallel request to this court.

[00:30:10] Speaker 04:
So Divix clearly understood what we were asking for on Appendix page 2088, referring it to as our parallel request.

[00:30:20] Speaker 04:
So the fact that our opponent understood exactly what we were asking for and that that was a parallel path to getting the relief we wanted makes it clear that that was exactly.

[00:30:28] Speaker 04:
There was no dispute.

[00:30:29] Speaker 04:
There was no question that that was what Realtek had asked for.

[00:30:34] Speaker 04:
On the question of jurisdiction, we've certainly addressed this in our brief under 1295.

[00:30:38] Speaker 04:
We think that all of the issues that are raised in 337c are reviewable by this court.

[00:30:46] Speaker 04:
Otherwise, you would have a strange situation where

[00:30:49] Speaker 04:
Questions about bond and forfeiture of bond would have to go to one court, whereas questions about forfeiture of bond under the clause two of the jurisdictional proceedings would come to this court.

[00:30:58] Speaker 04:
The commission agrees, for example, that clause two, there are three jurisdictional clauses in 337C.

[00:31:04] Speaker 04:
The clause two comes to this court, and clause two and clause three are identical in their language, in their reviewability language.

[00:31:10] Speaker 04:
So that would be a very odd situation.

[00:31:12] Speaker 04:
Congress didn't create that situation.

[00:31:15] Speaker 03:
Okay, I thank all the counsel in this case.

[00:31:18] Speaker 03:
This case is taken under submission.

[00:31:19] Speaker 04:
Thank you, Your Honor.