[00:00:00] Speaker 04:
We will hear argument next in number 231687, MyTechSystems against USAA.

[00:00:09] Speaker 04:
Mr. Mack.

[00:00:12] Speaker 04:
And thanks to you and everybody for your patience on the long argument while you waited.

[00:00:21] Speaker 01:
Good morning.

[00:00:21] Speaker 01:
May it please the court.

[00:00:22] Speaker 01:
Brian Mack on behalf of Appellant, MyTechSystems, Inc.

[00:00:26] Speaker 01:
We are back before you once again on an expanded record this time relating to this declaratory judgment action and in particular whether MITAC has a reasonable potential for claims of direct infringement, indirect infringement

[00:00:42] Speaker 01:
for indemnification liability.

[00:00:44] Speaker 01:
Now, we only need to show one of those three alternative bases.

[00:00:48] Speaker 01:
And we believe that there is sufficient evidence in the record now post remand to find a reasonable basis on all three.

[00:00:56] Speaker 04:
Can I ask you this question?

[00:00:57] Speaker 04:
Do you have a view about whether it is permissible to jump right to the discretion aspect without deciding the underlying case of controversy?

[00:01:12] Speaker 04:
issue, there's some Supreme Court case law, maybe most recently, the Sinochem case, but going back to Rorges, that says, in general, you have to decide subject matter jurisdiction, which would include case or controversy first.

[00:01:26] Speaker 04:
But there are some exceptions.

[00:01:28] Speaker 04:
Personal jurisdiction is an exception.

[00:01:30] Speaker 04:
Abstention is an exception.

[00:01:31] Speaker 04:
As long as you stay away from the merits, maybe.

[00:01:37] Speaker 04:
You can go right to a ground for dismissing that doesn't involve dismissing on the merits without deciding in case of controversy.

[00:01:48] Speaker 01:
Do you have a view on this?

[00:01:49] Speaker 01:
I don't believe that's been raised in any of the briefing, and we haven't taken a position on that to date.

[00:01:56] Speaker 01:
In this case, we think there are not well-founded reasons for the court to decline jurisdiction.

[00:02:02] Speaker 01:
So we think even if you did reach that issue, it should also be reversed.

[00:02:09] Speaker 01:
Multiple errors of the VISTA court committee.

[00:02:12] Speaker 02:
Let me ask you.

[00:02:13] Speaker 02:
You referred earlier when you got up to direct infringement and indirect infringement, meaning inducement and contributory infringement, and of course the indemnification issue.

[00:02:24] Speaker 02:
Looking at those four, direct, inducement, contributory, indemnification, if you had to hang your hat on one as being your strongest one,

[00:02:37] Speaker 02:
And you could only argue that one.

[00:02:39] Speaker 02:
Which one would you pick?

[00:02:41] Speaker 01:
I suspected that we may have received that question.

[00:02:44] Speaker 01:
I believe the direct infringement claim is fairly clear cut, because the district court completely ignored the Fernandez Declaration.

[00:02:53] Speaker 01:
That's at Appendix 1643.

[00:02:55] Speaker 01:
It's undisputed that MyTech, like every software company, tests all the elements, at least all the elements under USAA's construction of the claim terms, in its facilities in San Diego.

[00:03:07] Speaker 01:
And Mr. Fernandez explains that they test the entire mobile deposit system on real-world Android and iOS phones.

[00:03:15] Speaker 02:
You were hitting your head on the testing.

[00:03:17] Speaker 01:
The only arguments contrary to why that wouldn't provide standing, according to the USAA and the district court, they said that there's no alleged harm associated with the testing, but there's no requirement of harm under the damage.

[00:03:29] Speaker 03:
Was there any reason for the other side to know that

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You were doing this testing on devices at the time you filed your complaint.

[00:03:39] Speaker 01:
That's not required under the post-med immune standard.

[00:03:42] Speaker 01:
We have the Arrowhead case that says, quote, under the law, a court may find clear basis for reasonable apprehension in all the circumstances, even when a patentee first learns a plaintiff's conduct upon receipt of the complaint.

[00:03:54] Speaker 01:
That's actually a pre-med immune case under the stricter standard.

[00:03:58] Speaker 01:
The patentee has never needed to know about the infringement in order for there to be declaratory judgment standing.

[00:04:04] Speaker 01:
It's just not a relevant inquiry.

[00:04:06] Speaker 01:
And even if it were relevant, it's definitely not a disposable inquiry.

[00:04:08] Speaker 03:
What about an affirmative act by USAA?

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Is that part of the inquiry?

[00:04:12] Speaker 01:
There's many affirmative acts here.

[00:04:15] Speaker 01:
We have, from the last time we were before a different panel, but with Judge Tronto,

[00:04:19] Speaker 01:
There's the letter writing campaign to all of our customers.

[00:04:23] Speaker 01:
There's the indemnification request.

[00:04:24] Speaker 03:
Right, but an affirmative act directed at you or that something that you could fairly say is connected to being directed at you?

[00:04:33] Speaker 01:
USAA served us with rule 45 subpoenas in each of the cases.

[00:04:36] Speaker 01:
We were present at the Wells Fargo case where we actually witnessed how central MySnap, our software, was to... Did they ever ask in those subpoenas, hey, are you doing any testing?

[00:04:47] Speaker 01:
The subpoenas, I don't believe, ever reached the issue of testing.

[00:04:49] Speaker 01:
But it's common sense that software companies test their products.

[00:04:52] Speaker 01:
So the real question here is whether there would have been a reasonable potential for direct infringement claims to be brought.

[00:04:58] Speaker 01:
There's been lots of cases that this circuit has affirmed billions of dollars in damages based on design and testing in California, like the Carnegie Mellon case.

[00:05:06] Speaker 01:
So there can be a large amount of damages associated with testing and design of products.

[00:05:10] Speaker 04:
So I think one of the things the other side

[00:05:13] Speaker 04:
says is, well, testing Velnon is not the question.

[00:05:19] Speaker 04:
The question is whether there would have been testing that included all the elements of the claim, which I guess include actually having a depository institution.

[00:05:32] Speaker 01:
Yeah, so we addressed that actually in our yellow brief.

[00:05:34] Speaker 01:
The depository claim, there's only some of the patents use the word depository.

[00:05:39] Speaker 01:
That can be defined as a third party under the actual description within the patent of that one that uses depository.

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And the Fernandez Declaration

[00:05:47] Speaker 01:
clearly explains that we test the entire system from beginning to end.

[00:05:52] Speaker 01:
So there's actually two pieces of the MyTech solution.

[00:05:54] Speaker 01:
We've been focusing on the MySnap piece that's on the cell phone.

[00:05:57] Speaker 01:
MyTech also has a mobile deposit server.

[00:06:01] Speaker 01:
It's an image processing server.

[00:06:03] Speaker 01:
That's the server that's actually typically situated at the bank.

[00:06:07] Speaker 01:
So there's actually two pieces of the MyTech equipment here.

[00:06:10] Speaker 01:
There's the software on the phone that sends the image to a mobile deposit server that's also running MyTech software that's at the bank.

[00:06:19] Speaker 01:
So the testing in San Diego is testing the complete system.

[00:06:22] Speaker 01:
It's clear from the Fernandez declaration that this report doesn't mean reference in its opinion.

[00:06:26] Speaker 01:
that we test the complete system from beginning to end from the mobile device to the servers.

[00:06:32] Speaker 01:
Servers that are usually situated at a bank, but in this situation, they're situated in San Diego at our lab.

[00:06:39] Speaker 01:
So the depository, even in the few claims that do say you're sending it to a depository, that depository would still be satisfied by the third party server.

[00:06:50] Speaker 04:
Even though it's not a bank.

[00:06:51] Speaker 01:
Even though it's not a bank, because the patent defines it as it could be a third party.

[00:06:56] Speaker 01:
It doesn't have to be a bank.

[00:06:57] Speaker 01:
It could be a third party that's acting on behalf of a bank.

[00:07:00] Speaker 01:
So the bank could have outsourced that.

[00:07:02] Speaker 04:
Oh, but it's your third party acting on behalf of a bank?

[00:07:05] Speaker 01:
We do our testing on behalf of banks.

[00:07:06] Speaker 01:
We will work directly with banks through troubleshoot.

[00:07:09] Speaker 01:
And we will set everything up in our labs.

[00:07:11] Speaker 01:
And we will emulate the same network environment that the bank has.

[00:07:15] Speaker 01:
And we will perform all of the steps in San Diego.

[00:07:18] Speaker 04:
It doesn't feel to me quite like

[00:07:21] Speaker 04:
your own lab is on behalf of the bank just because you're developing a product that you would like to sell to the bank.

[00:07:30] Speaker 01:
The claim limitations that use the depository language is the last step that says transmitting.

[00:07:34] Speaker 01:
It's really the transmitting that's part of the claim.

[00:07:36] Speaker 01:
It's the transmission, but then it says to a depository.

[00:07:39] Speaker 04:
You said not all of the claims.

[00:07:41] Speaker 01:
Not all of the claims have the depository language.

[00:07:43] Speaker 01:
No, it's only

[00:07:43] Speaker 01:
It's only some of the claims.

[00:07:45] Speaker 01:
And it's an ancillary step to the invention.

[00:07:48] Speaker 01:
It's really the transmission.

[00:07:50] Speaker 01:
The claims are all really directed at the mobile device.

[00:07:53] Speaker 01:
Some of the claims start within the framework.

[00:07:55] Speaker 04:
What is the role in 271A, B, or C of a word like ancillary?

[00:08:04] Speaker 01:
I'm not sure I understand this question.

[00:08:06] Speaker 04:
And you said this in your brief, too.

[00:08:08] Speaker 04:
that some of these steps are ancillary to the main invention.

[00:08:11] Speaker 04:
And I don't remember that being a concept that is involved in either 271A, B, or C. Well, and this mostly comes up in the reasonable potential for the indirect infringement claims.

[00:08:25] Speaker 01:
Judge Gilstrap completely refused to look at how central MySnap was to the claimed invention or how important it was to the critical elements.

[00:08:34] Speaker 01:
And that's completely contrary to

[00:08:36] Speaker 01:
ED Texas case law and Fed Circuit case law.

[00:08:38] Speaker 01:
We cited the SafeNet case.

[00:08:40] Speaker 01:
It says, for the patentee, in quote, for the patentee to say it has no controversy with the supplier when the supplier's product forms a central basis of its infringement theory is disingenuous.

[00:08:51] Speaker 01:
And then in the DataTurn case, it was an indirect infringement.

[00:08:55] Speaker 01:
In the indirect infringement part of DataTurn, this court looked at the documentation for several key limitations.

[00:09:01] Speaker 01:
So you only looked at the key limitations, not all of the

[00:09:04] Speaker 01:
Ancillaire is my word for insignificant post-processing step or an insignificant pre-processing step.

[00:09:11] Speaker 04:
If this were a 101 case?

[00:09:13] Speaker 01:
Yeah, it's not the heart of the invention.

[00:09:15] Speaker 01:
And I think here, for the reasonable potential, we've shown that MySnap has been alleged by USAA to perform the majority of the claim elements, the real heart of the inventions here.

[00:09:26] Speaker 03:
And that seems to be what you're seeking a declaratory judgment on, a declaratory judgment that your software

[00:09:34] Speaker 03:
doesn't infringe or meet the limitations of the most significant limitations.

[00:09:43] Speaker 03:
You know, you're almost looking for a partial non-infringement based on what you see as the most important limitations.

[00:09:51] Speaker 03:
Well, in order to establish... And I don't know if we've ever said that

[00:09:55] Speaker 03:
you can get a declaratory judgment in that way.

[00:09:58] Speaker 01:
In order to establish declaratory judgment standing, obviously we are seeking a declaratory judgment of non-infringement.

[00:10:05] Speaker 01:
So we do not have to prove for the purposes of standing that we infringe.

[00:10:08] Speaker 01:
That wouldn't make any sense.

[00:10:09] Speaker 01:
And I think the panel has already articulated that in the first opinion.

[00:10:14] Speaker 01:
We do believe that we have

[00:10:16] Speaker 01:
well-founded reasons why MySnap can never infringe under any circumstance by any user under any of its programmed capability.

[00:10:24] Speaker 01:
It's just on these particular four patents.

[00:10:28] Speaker 01:
So we will be seeking, we will be able to prove at the trial that MySnap can never infringe under any arrangement.

[00:10:36] Speaker 01:
But just for this threshold issue on the rule 12 motion that we're dealing with today,

[00:10:41] Speaker 01:
standard is just a reasonable potential that these claims could be brought.

[00:10:45] Speaker 01:
So that's why we looked at the centrality of MySnap to the infringement allegations, to USAA's affirmative acts against all of our customers.

[00:10:54] Speaker 04:
Suppose one looked at the course of conduct by a patent owner here and came to the conclusion that they are making a studious effort not to ever accuse you of infringement.

[00:11:12] Speaker 04:
What is it about the Declaratory Judgment Act that suggests, at least coupled with your asserted belief that you could never infringe, what about the policy of the Declaratory Judgment Act suggests that in that context, there should be a DJI action?

[00:11:36] Speaker 01:
Oh, there's much case law that says affirmative threats are not required for declaratory judgment standing.

[00:11:41] Speaker 01:
I think that was even cited in the first case.

[00:11:42] Speaker 01:
Right.

[00:11:43] Speaker 04:
I went beyond the absence of an affirmative threat.

[00:11:47] Speaker 04:
It's really quite clear that they are not going to sue you.

[00:11:50] Speaker 01:
Well, if that was quite clear, then

[00:11:52] Speaker 01:
The question from the last panel, why are they not offering us the covenant not to sue?

[00:11:56] Speaker 01:
It's only four patents out of many other patents.

[00:12:00] Speaker 01:
If we could get a covenant not to sue, we could all just go home today.

[00:12:04] Speaker 04:
I thought that was part of what was on the table, or just off the table, that there is a concern, worried on the other side, maybe not so worried, maybe even affirmatively desired on yours, that such a covenant

[00:12:22] Speaker 04:
would have dramatic downstream consequences based on the exhaustion doctor.

[00:12:30] Speaker 04:
Does that play a role here?

[00:12:31] Speaker 01:
That may be one of their concerns, but in our view, that's what we're entitled to if we really want this declaratory judgment action to go away.

[00:12:38] Speaker 01:
We're only asking for a declaratory judgment action on behalf of our customers for use of our product.

[00:12:43] Speaker 01:
We're not asking for a declaratory judgment action

[00:12:46] Speaker 01:
on behalf of our customers for anything else that it does.

[00:12:49] Speaker 01:
Like if it uses somebody else's product and infringes the patent, that's not what we're asking for.

[00:12:55] Speaker 01:
So their whole concerns about unwieldiness don't really make sense to us.

[00:12:59] Speaker 01:
We have all of the documentation to show how MySnap works.

[00:13:03] Speaker 01:
We have all the documentation that we provide to our customers to show how we could allegedly be inducing other people to infringe.

[00:13:11] Speaker 01:
Everything is within our realm.

[00:13:12] Speaker 01:
We don't plan to subpoena or join

[00:13:15] Speaker 01:
any third parties to this case.

[00:13:17] Speaker 02:
Mr. Mack, let me ask you.

[00:13:18] Speaker 02:
You're talking about basically the discretionary ruling now.

[00:13:21] Speaker 02:
You're getting into that, I guess.

[00:13:24] Speaker 02:
And we've been talking mostly about A, B, and C of the infringement statute.

[00:13:29] Speaker 02:
Assume for the moment that you have to hang your hat on indemnification.

[00:13:37] Speaker 02:
I guess we have the indemnification provision

[00:13:41] Speaker 02:
at appendix 1663, correct?

[00:13:46] Speaker 01:
Yes, so we actually.

[00:13:47] Speaker 02:
Paragraph 10.

[00:13:48] Speaker 02:
What is the language, the precise language in there?

[00:13:51] Speaker 02:
that you say puts you on the hook.

[00:13:57] Speaker 02:
And I'm thinking in terms of the one very specific claim that you hang your hat on is, I guess, the Jack Henry issue.

[00:14:06] Speaker 02:
So that's the Jack Henry agreement.

[00:14:09] Speaker 02:
What is the provision in paragraph 10 that creates risk of infringement of charge for you?

[00:14:16] Speaker 01:
It's a good question, Judge Schell.

[00:14:18] Speaker 01:
And just for the record, there's five different indemnification agreements now on the record post-remand.

[00:14:24] Speaker 01:
And there's seven different agreements, all with slightly different scope and different language.

[00:14:29] Speaker 02:
But I'm focusing on the Jack Henry, because that's the one where we have

[00:14:33] Speaker 02:
letters coming in a letter coming in from jack henry saying and then pointing to the traditional letter.

[00:14:40] Speaker 01:
And the letter just for the record is appendix 1717 and you can see there it's the general counsel of jack henry who actually he subjectively believes that my deck is required to identify.

[00:14:50] Speaker 01:
And then there's the epicenter law.

[00:14:51] Speaker 01:
There's the epicenter law.

[00:14:53] Speaker 02:
Well what is the provision, what is the language of paragraph 10 that you say really puts your client on the hook?

[00:15:00] Speaker 01:
And it's important to note that in the low brief, they actually elide the most important part of this.

[00:15:08] Speaker 01:
So there's an exclusion here that the district court really picked up on.

[00:15:11] Speaker 01:
And they said that this exclusion in the district court's view would apply.

[00:15:14] Speaker 01:
Clearly incorrect.

[00:15:16] Speaker 01:
If you look at this.

[00:15:17] Speaker 02:
Again, what is the provision in here that you say

[00:15:20] Speaker 02:
creates a problem for your client, and creates potential indemnification liability.

[00:15:27] Speaker 01:
Certainly.

[00:15:27] Speaker 01:
If you look at Section 10 of Appendix 1663, 10a, the first part is a really broad indemnification clause.

[00:15:35] Speaker 01:
10a, my tech shall defend.

[00:15:37] Speaker 01:
The exclusion that the district court in USAA hang their hat on is the next sentence in the middle of the paragraph where it says my tech will on the right hand side.

[00:15:47] Speaker 01:
My tech will have no liability to JHA here under if.

[00:15:51] Speaker 01:
And then if you go down, they stop right after devices or software not supplied by MyTech.

[00:15:59] Speaker 01:
And then that's where they end their quote.

[00:16:00] Speaker 01:
And they completely elide the rest of the statement, comma, except as part of the integrated JHA solutions.

[00:16:08] Speaker 01:
And that's at the bottom of page 38.

[00:16:10] Speaker 01:
of the blue brief.

[00:16:12] Speaker 01:
Extremely misleading quote, because that's the key part.

[00:16:14] Speaker 02:
Let me ask you the first part.

[00:16:17] Speaker 02:
The first part says, MyTech shall defend, indemnify, and hold harmless, et cetera.

[00:16:22] Speaker 02:
And after the prints, relating to or arising from any third party claim or allegation that all are part of the MyTech products,

[00:16:32] Speaker 02:
then there's a parenthetical, other than arising solely as a result of the use of the MyTex products in connection with the JHA solution components and integrated solution.

[00:16:43] Speaker 02:
What does that mean?

[00:16:44] Speaker 02:
So what is that parenthetical doing?

[00:16:46] Speaker 01:
Yeah, that parenthetical, when you read it in connection with the next sentence, that's indemnity liability arising solely out of combining it with the second product.

[00:16:56] Speaker 01:
So say I had a patent claim that had five elements and all five elements were performed by the second part of the product, but zero elements were performed by my tech product.

[00:17:04] Speaker 01:
That would be solely performed by the second product.

[00:17:07] Speaker 01:
That's what that means when it says solely.

[00:17:09] Speaker 01:
My tech's really not performing any of the limitations there.

[00:17:12] Speaker 01:
That parenthetical actually hasn't been raised.

[00:17:15] Speaker 03:
Do you understand how a reader, maybe me,

[00:17:18] Speaker 03:
would be a little confused by that parenthetical.

[00:17:21] Speaker 03:
And then the accept clause that you're relying on in the second sentence accept clause that you like except as part of the integrated JHA solutions seems to conflict with this parenthetical

[00:17:37] Speaker 01:
other than rising i really i understand that that parenthetical actually i don't think it's been raised by either party but it is this next part that's makes it more clear that we will have liability as to the integrated jay jay solutions and the integrated solution i'd although it was really special issue i believe you said uh... the x the the uh... that will whereas comma except as part of the integrated jay jay solution because it's my tech will not have liability for any combinations

[00:18:06] Speaker 02:
except for combinations as part of the integrated j jason so that you have like that point which you brought to our attention a few minutes ago yes that's what you say uh... creates the liability issue indemnification liability it's only a reasonable potential at this stage even if there aren't ambiguities judge chen

[00:18:26] Speaker 01:
If there's ambiguities in a legal document, you look at extrinsic evidence.

[00:18:30] Speaker 01:
You accept jurisdiction.

[00:18:31] Speaker 01:
You have the depositions.

[00:18:32] Speaker 01:
You figure out what the parties meant when they drafted this.

[00:18:35] Speaker 03:
This accept clause in section 10A.

[00:18:38] Speaker 03:
Did you raise it below?

[00:18:42] Speaker 01:
The accept clause we pointed out in our yellow brief, yes.

[00:18:47] Speaker 03:
To the district court.

[00:18:48] Speaker 01:
To the district court below.

[00:18:48] Speaker 03:
You definitely didn't bring it up in your blue brief.

[00:18:51] Speaker 03:
I know that.

[00:18:52] Speaker 03:
It didn't come up in this appeal until your yellow brief.

[00:18:55] Speaker 03:
At the moment, we don't know what the other side has to say.

[00:18:58] Speaker 01:
Yes.

[00:18:59] Speaker 01:
So the post remand brief, our main post remand brief, is Appendix 1606.

[00:19:04] Speaker 01:
Judge Gilstrop afforded the party's full briefing.

[00:19:07] Speaker 01:
And we did cite

[00:19:08] Speaker 01:
We did site that's the impact of the accept clause in your a 1606 post We quoted it at appendix 1613 and we bolded We quoted that we we quoted 10a on page about a 1613.

[00:19:27] Speaker 01:
I'm not sure if we specifically Since the except part clearly would implicate my tuck.

[00:19:36] Speaker 01:
I'm not sure if we we

[00:19:37] Speaker 01:
explain that in detail and have to go back and look at the post remand briefing.

[00:19:41] Speaker 01:
I'm not as familiar with this.

[00:19:41] Speaker 01:
I'm more familiar with the blue, red, and yellow.

[00:19:44] Speaker 02:
You're saying, Mr. Mack, that at 1613 is your briefing on this question in the district court, correct?

[00:19:53] Speaker 01:
That's an open area.

[00:19:54] Speaker 02:
Maybe if I'm, well, what I understand Judge Chen is asking you, where in there do you mention the accept clause that you've pointed us to as being important today?

[00:20:09] Speaker 01:
Is that Judge Chen's question?

[00:20:11] Speaker 03:
That's Judge Chen's question.

[00:20:13] Speaker 01:
Yes, 10A is quoted here.

[00:20:14] Speaker 01:
I'm just trying to find.

[00:20:16] Speaker 04:
Not that clause.

[00:20:17] Speaker 01:
Trying to find.

[00:20:19] Speaker 04:
Did you each just get one brief?

[00:20:24] Speaker 04:
Obviously Judge Gilstrap relied on the carve-out.

[00:20:28] Speaker 04:
So did you have, as in the others, I pointed out this carve-out?

[00:20:33] Speaker 04:
Did you have an opportunity to say, oh, here's why the carve-out isn't

[00:20:38] Speaker 02:
we did and there's a there's a response to bring to this uh... printed out right now but i don't there was a full there was a full round of briefing on both sides i think we have four i think there were four groups are you representing uh... and i'm not i'm simply this is maybe what your recollection is and i apologize but you can you represent to us that the except clause that you point out to us today is being important was uh... a matter that was before the district court

[00:21:08] Speaker 01:
I can confirm.

[00:21:11] Speaker 01:
My colleague can confirm that.

[00:21:12] Speaker 01:
We could look up the reply brief that goes along with Appendix 1606.

[00:21:16] Speaker 01:
I would imagine it would be, because these identification provisions were discussed at length in the post remand briefing.

[00:21:24] Speaker 01:
That accept clause was raised for the first time in the red brief, and that's why we responded in the yellow brief.

[00:21:30] Speaker 02:
One other question.

[00:21:32] Speaker 02:
Behind this, we have this.

[00:21:34] Speaker 02:
this letter, this communication from this entity, Epicenter Law.

[00:21:40] Speaker 02:
And that was what apparently led Jack Henry to send the letter to your client.

[00:21:46] Speaker 02:
Now, I know that I think in the briefing that USAA says Epicenter Law isn't us suing for infringement or anything like that or threatening.

[00:21:57] Speaker 02:
But who exactly is Epicenter Law and what is their role in this situation?

[00:22:03] Speaker 01:
Epicenter law was USA's Licensing Council.

[00:22:07] Speaker 01:
They were the ones that sent out the thousands of letters.

[00:22:09] Speaker 01:
They were based in the Bay Area That's why this case was originally filed in the Bay Area was transferred to Texas Unfortunately, but epicenter law is their licensing council the one that was responsible for putting all of our customers on notice of these patents Okay, is there any

[00:22:25] Speaker 03:
Anything in the record that shows what is the indemnification obligation of JHA, of Jack Henry, for whatever clients it has that received a letter from this law group?

[00:22:42] Speaker 01:
So the Jack Henry cover letter at Appendix 1717, it kind of explains what happened here.

[00:22:48] Speaker 01:
A client, and I don't know if you understand how Jack Henry operates.

[00:22:53] Speaker 01:
Who's the middleman?

[00:22:54] Speaker 01:
MyTech's a small software company.

[00:22:56] Speaker 01:
Jack Henry's a larger company.

[00:22:58] Speaker 01:
They act as MyTech's licensing agent, but they do more of that.

[00:23:00] Speaker 01:
So they're actually authorized to license MySnap on behalf of MyTech.

[00:23:05] Speaker 01:
They also work with the banks themselves to develop the software.

[00:23:08] Speaker 03:
Part of the exercise here is trying to figure out what is the nature of the obligation of your client.

[00:23:17] Speaker 03:
We're going through this chain here.

[00:23:19] Speaker 03:
It would be useful to see the other half of that chain, which is the indemnification obligation of Jack Henry to these clients that receive these letters.

[00:23:29] Speaker 01:
So the Jack Henry agreement contemplates indemnification over the integrated solution.

[00:23:34] Speaker 01:
And that is the solution that is provided to the clients.

[00:23:36] Speaker 01:
Some of the indemnification agreements specifically say end users are also indemnified.

[00:23:41] Speaker 01:
There's several of those in the record.

[00:23:43] Speaker 01:
The Jack Henry one doesn't use the word end users, but it's inferred through the use of the integrated solution that it would cover the end users.

[00:23:51] Speaker 01:
And if you look here at Appendix 1717, the letter, the Jack Henry General Counsel says, Jack Henry has received a claim by Q2 Banking of indemnity related to the remote deposit products.

[00:24:04] Speaker 01:
Q2 and several other Jack Henry customers have received the attached letter from UPB Center Law.

[00:24:09] Speaker 01:
postulating infringement of 50 or more patents owned by USAA.

[00:24:13] Speaker 01:
So Jack Henry has received a claim by its customers, and then pursuant to Section 10 of the agreement, MyTech has certain identification obligations with respect to Jack Henry in connection with these claims, referring back up to the claim brought by the end user, and any related claims.

[00:24:33] Speaker 01:
So it's pretty clear from this letter and Jack Henry's interpretation that the obligations of MyTech would also cover the obligations of the end user.

[00:24:46] Speaker 01:
It wouldn't be uncommon for the middleman to also have an indemnification agreement in addition to the standard UCC indemnification type that's required of the end user product that would flow back to Jack Henry and then MyTech would indemnify Jack Henry.

[00:25:01] Speaker 01:
That's also a very common scenario in this

[00:25:04] Speaker 01:
in software generally.

[00:25:06] Speaker 01:
But I don't think that defeats the reasonable potential in any way.

[00:25:09] Speaker 01:
I mean, there's just one intermediary link.

[00:25:13] Speaker 01:
There's no broken link.

[00:25:14] Speaker 01:
It's just one step in the link.

[00:25:18] Speaker 04:
Well over your time.

[00:25:20] Speaker 04:
We'll restore your rebuttal time, but we'll hear from the other side.

[00:25:24] Speaker 01:
Thank you.

[00:25:37] Speaker 00:
good morning and may it please the court at least a glass there on behalf of u s a and other i p r is going on with these things there are and there was actually an opinion issued and an hour or two ago uh... affirming that he had final decision with respect to the actually only two of these patents that have been litigated through judgment so how does that affect this case

[00:26:05] Speaker 00:
This that I would imagine if this court were to do what we think is not the correct result, which is to find that there is jurisdiction at this moment and additionally that the district court abused its discretion in declining jurisdiction.

[00:26:20] Speaker 00:
that would go into the bundle of mix of facts for the district court to now again consider on remand because there have been a number of changed circumstances that we think yet further completely eviscerate this idea that there's somehow a reasonable apprehension of suit.

[00:26:39] Speaker 00:
Other new facts in the mix, of course, include the fact that there's at this point in time not

[00:26:46] Speaker 00:
for several years than any new active litigation involving these patents.

[00:26:51] Speaker 03:
So the 571 and the 779

[00:26:55] Speaker 03:
Are there still claims alive in those, or that survived the IPR?

[00:27:00] Speaker 00:
Yeah, I mean, our position would be that it's not at final judgment yet.

[00:27:03] Speaker 00:
Not final judgment, I understand.

[00:27:04] Speaker 00:
But it was all.

[00:27:05] Speaker 00:
Did it cover all claims?

[00:27:06] Speaker 00:
It did cover all asserted claims of those patents.

[00:27:09] Speaker 04:
All asserted claims, I'm sorry.

[00:27:10] Speaker 04:
All claims of the patent?

[00:27:12] Speaker 00:
All of the claims that MyTech has identified in its brief here, and all the ones that have ever been asserted against anybody.

[00:27:19] Speaker 02:
And what's happened again at the IPR with respect to those?

[00:27:22] Speaker 00:
there was a final written decision of invalidity, and this morning that was affirmed.

[00:27:29] Speaker 03:
Yes.

[00:27:29] Speaker 03:
In a non-precedential opinion.

[00:27:31] Speaker 03:
And then what about the 090 patent, which is the other patent at stake here?

[00:27:37] Speaker 03:
Is there any pending IPR there?

[00:27:38] Speaker 00:
There is no pending IPR on that patent.

[00:27:40] Speaker 00:
The 090 patent has one other notable effect that I think, again, it's sort of

[00:27:46] Speaker 00:
on the mountain of reasons why there's no reasonable apprehension.

[00:27:49] Speaker 00:
The 090 patent actually was the only one of these patents that was not even mentioned as an attachment, even just noted in passing in any of these letters that went out to the banks that the prior panel found were just enough, just barely enough

[00:28:07] Speaker 00:
to potentially create a reasonable apprehension of suit on behalf of any entity that received the letter in 2017.

[00:28:14] Speaker 00:
Of course, eight years gone by now, I don't think there's any reasonable apprehension by those entities in any event.

[00:28:20] Speaker 00:
But the 090 was actually not even part of those letters at that time.

[00:28:24] Speaker 04:
And the 517, what's the status of that?

[00:28:29] Speaker 00:
517 is not part of any lawsuit.

[00:28:32] Speaker 00:
It's not part of any of these IPRs.

[00:28:36] Speaker 00:
sitting there issued at this point in time.

[00:28:39] Speaker 04:
OK.

[00:28:41] Speaker 04:
Would you mind answering the question that came out about whether the exception to the carve-out sentence in the Jack Henry section 10A was brought to the district court's attention?

[00:28:56] Speaker 00:
So, Your Honor, I do not believe that MyTech ever made that argument in the district court.

[00:29:01] Speaker 00:
And one of the reasons why I say that is that I think we would have gone down a whole separate path of discussion with the district court if that had been their argument.

[00:29:10] Speaker 00:
Because the other problem with that argument is the fact that it hangs its hat entirely on this term.

[00:29:17] Speaker 00:
I think the term is integrated JHA solutions.

[00:29:22] Speaker 00:
And MITAC didn't even submit the part of the agreement

[00:29:26] Speaker 00:
that defines what's included within that.

[00:29:28] Speaker 00:
And so I believe, Your Honor, and I am the one who handled that argument, along with my colleague, Mr. Mack, that that would have become certainly an issue of us asking, well, if that's your argument, what is that?

[00:29:41] Speaker 00:
So I think that's the issue there.

[00:29:43] Speaker 00:
With respect to JHA, though, the larger issue is this court laid out in detail what the actual test is when we're talking about indemnity.

[00:29:53] Speaker 00:
And the question is not, is there some indemnity agreement out there somewhere that could apply if there was a claim?

[00:30:00] Speaker 00:
As this panel explained in the prior decision and several prior decisions of this court as well lay out, this is all a concept about whether MyTech can actually step into the shoes of a specific entity that itself has standing.

[00:30:17] Speaker 00:
And so the idea isn't, could somebody out there someday assert an indemnification claim

[00:30:23] Speaker 00:
Question number one as this court laid out in the decision was, is there a third party who at the time of the complaint and all the way through today has themselves a reasonable apprehension of suit from USAA on these four patents?

[00:30:40] Speaker 00:
If the answer to that is no, we stop.

[00:30:43] Speaker 00:
If the answer to that is yes, we then go to the separate question of saying, well, is there a reasonable potential

[00:30:50] Speaker 00:
for my tech to have to indemnify that party.

[00:30:53] Speaker 00:
It's undisputed on this record that the only entity that both received a letter at the time of suit and has any sort of contract with any indemnity in it is nobody.

[00:31:04] Speaker 00:
JHA is literally the only entity who received any letter at the time of the lawsuit.

[00:31:12] Speaker 00:
JHA had no apprehension of suit.

[00:31:15] Speaker 00:
There's no argument that they apprehended suit.

[00:31:18] Speaker 00:
If anything, there are a couple steps removed.

[00:31:21] Speaker 03:
But I guess the question is, is whether JHA potentially stands in the shoes of its bank clients that received this letter from at the center.

[00:31:31] Speaker 03:
And so therefore, perhaps if there's an indemnity obligation there, then they do stand in those shoes.

[00:31:40] Speaker 03:
and then go one level up the chain, then likewise, arguably, MyTech stands in the shoes of JHA.

[00:31:48] Speaker 00:
Yes.

[00:31:49] Speaker 00:
There's an interesting sort of unsettled question of, can you ever have sort of a daisy chain standing in that respect?

[00:31:55] Speaker 00:
I don't think this court has ever addressed that.

[00:31:58] Speaker 00:
Here, the issue isn't presented, because we have the entity JHA.

[00:32:04] Speaker 00:
We know they didn't reasonably apprehend suit.

[00:32:07] Speaker 00:
They're the only ones with any indemnity agreement in the record.

[00:32:10] Speaker 03:
We have a mention... But why do we know that they have no reasonable apprehensions?

[00:32:14] Speaker 00:
There's absolutely no evidence whatsoever in the record that USAA has ever contacted JHA.

[00:32:22] Speaker 03:
that jay jay has ever said that itself it believes it would be sued well then the jack henry according to their letter at seventeen seventeen jack henry has received a claim by q two banking of indemnity related to remote deposit products so that they're saying received this indemnity demand by the bank great and they don't know what that was we don't know

[00:32:51] Speaker 00:
what's going on with Q2.

[00:32:52] Speaker 00:
I don't think Q2 actually received a letter.

[00:32:55] Speaker 00:
Certainly, this is my tech's burden, of course, to show all of these facts for jurisdiction.

[00:33:02] Speaker 00:
My tech put absolutely nothing into the records suggesting that JHA or even this Q2

[00:33:09] Speaker 00:
or whoever is this bank whose name they chose to redact out on the letter, that's their burden to show.

[00:33:16] Speaker 00:
And so even if, it's an interesting question, right, if theoretically under some scenario you could daisy chain the indemnity.

[00:33:23] Speaker 00:
I think this question.

[00:33:23] Speaker 03:
I guess another interesting question is, how deeply do we have to go into the merits of whether there is, in fact, a legal indemnity obligation

[00:33:36] Speaker 03:
before concluding that there is standing here.

[00:33:39] Speaker 00:
Yeah, and here I think you just don't, because there's absolutely no evidence that you should.

[00:33:43] Speaker 03:
Yeah, but before we reach that conclusion, I mean, we first have to ask ourselves, how far down the rabbit hole should we really be going?

[00:33:50] Speaker 03:
And maybe we should just stop at the fact that there is this indemnity obligation, and that there is this allegation from JHA that its clients have demanded indemnity.

[00:34:05] Speaker 03:
I guess what I'm trying to figure out is how far, what level do we go in terms of reaching this question?

[00:34:13] Speaker 03:
We certainly shouldn't go all the way to the merits.

[00:34:16] Speaker 00:
Yeah, and I think this court's prior decision and as well the data turn decision do answer that question in saying it's not enough for there just to be pointing to an agreement.

[00:34:27] Speaker 00:
You do have to look at the merits, and you do need to find a reasonable potential of indemnification liability.

[00:34:33] Speaker 00:
Again, most importantly,

[00:34:35] Speaker 00:
to some specific entity.

[00:34:37] Speaker 00:
And this, in part, is just a fundamental issue on whether there's jurisdiction.

[00:34:42] Speaker 00:
It also gets a little bit into the discretionary denial.

[00:34:44] Speaker 00:
Because if you ever had a situation where you found, A, there is a third party who itself has a reasonable apprehension, and B, MyTech has a reasonable potential of having to indemnify them, they get to proceed on their suit against USAA.

[00:35:01] Speaker 00:
But that suit would be focused on the entity itself

[00:35:05] Speaker 03:
who has the reason apprehension and might have essentially jumping into defendants to try to ask the interesting question legal question as to the ordering of how to think about the issues confronting us

[00:35:21] Speaker 03:
Do we need to first satisfy ourselves that there is a case or controversy before touching Judge Gilstrap's second backup grounds for dismissal, which is to say that he also concluded that it's best to exercise his discretion to not take the case?

[00:35:43] Speaker 00:
And Your Honor, we actually looked at that issue as well because I think the discretionary denial one is much more straightforward in a lot of ways.

[00:35:53] Speaker 00:
And in the evidence, they're quite overwhelming.

[00:35:56] Speaker 00:
We saw no indication in Supreme Court precedent or precedent of this court saying that you would need to first actively find a case in controversy

[00:36:07] Speaker 00:
before you could consider whether a district court acted within its discretion in declining jurisdiction.

[00:36:14] Speaker 00:
And it logically, I think, makes sense that you could take it in either order.

[00:36:18] Speaker 00:
The reason being, the entire purpose of it is just to find out, is there a basis for the Declaratory Judgment Act to be invoked in this particular scenario?

[00:36:29] Speaker 00:
Of course, for us as parties and for the district court,

[00:36:34] Speaker 00:
prudent to walk through all of the arguments because we want to have a complete record and address all of the issues.

[00:36:41] Speaker 00:
But fundamentally, the question is, is the Declaratory Judgment Act here properly in play?

[00:36:48] Speaker 00:
And whether you get there through the district court saying, I would decline any jurisdiction that might exist because as a matter of my docket management, as a matter of my analysis of the facts,

[00:37:01] Speaker 00:
it would be wholly inefficient to proceed that way, or whether you get to that avenue by saying there's no set of facts under which you could have standing in the first place.

[00:37:12] Speaker 00:
Again, I don't think there is a case directly on point, but that certainly is what makes sense to us, Your Honors.

[00:37:18] Speaker 03:
At this point in time, USAA has taken a long, hard look, because it's had to, at MyTech's conduct.

[00:37:26] Speaker 03:
USAA must have certainly arrived at a conclusion now as to whether it thinks MyTech is directly infringing or indirectly infringing its patents.

[00:37:38] Speaker 03:
So, what's USA's position?

[00:37:42] Speaker 03:
Do they believe MyTech's infringing or indirectly infringing these patents?

[00:37:46] Speaker 00:
Your Honor, from what we have seen litigating against these three banks in court, our understanding is the same as what MyTech told the PTAB expressly, which is that it appears that the MyTech software itself, as sold

[00:38:02] Speaker 00:
does not satisfy every element of these claims.

[00:38:06] Speaker 03:
That's direct infringement.

[00:38:07] Speaker 03:
How about indirect infringement?

[00:38:10] Speaker 00:
And we've obviously never dug under the hood, but we have never put forth any sort of allegation that it is MyTech who is directing any of these banks who are infringing by using... What are the chances USAA is going to issue MyTech a covenant not to sue by the end of the week?

[00:38:27] Speaker 00:
The reason why I think USA wouldn't do that most likely is twofold.

[00:38:32] Speaker 00:
One, we are within our rights as this court has laid out before.

[00:38:37] Speaker 00:
We're not going to be coerced by a party who files a non-meritorious declaratory judgment act into being demanded to provide a covenant.

[00:38:48] Speaker 00:
This court's precedent makes clear that that is not required.

[00:38:52] Speaker 00:
In fact, the cases where that ends up being weighed to any significant degree

[00:38:56] Speaker 00:
Typically, I think actually always our cases where the patentee has actually approached the entity and said, hey, let's talk about licensing.

[00:39:03] Speaker 00:
Let's talk about a problem with your product.

[00:39:05] Speaker 00:
In that situation, it makes sense.

[00:39:07] Speaker 00:
Here, we're on our own, minding our business, bringing litigation in several

[00:39:12] Speaker 00:
discrete instances against major competitors.

[00:39:15] Speaker 02:
Let me ask you just before your time runs out there.

[00:39:19] Speaker 02:
It came up a little bit in our discussion with Mr. Mack, but the epicenter letter, I believe Mr. Mack said, correct me if I'm wrong, that epicenter was a licensing agent of USAA.

[00:39:35] Speaker 00:
I don't think I would disagree with that discussion.

[00:39:37] Speaker 02:
Does it work that USAA says, as the first step in a process, say, oh, we think something's going on, go out and send a letter to Jack Henry?

[00:39:51] Speaker 02:
Is that the way it works, or someone else?

[00:39:54] Speaker 00:
Yes, so no letter to my knowledge has ever gone out to Jack Henry.

[00:39:59] Speaker 02:
I thought they said they got one here.

[00:40:01] Speaker 00:
No, that was sort of one of the points I was trying to communicate, which is... Oh, I see.

[00:40:07] Speaker 00:
They didn't get a letter.

[00:40:08] Speaker 00:
They're the only ones who ever sent an indemnity request, and they did not get a letter.

[00:40:12] Speaker 00:
My understanding of the letters is that Mr. Epstein, back in 2017, sent letters to a number of banks, actually.

[00:40:21] Speaker 02:
I see, okay.

[00:40:23] Speaker 02:
And Jack Henry does business with the banks so that the bank would maybe then go after Jack Henry.

[00:40:32] Speaker 02:
Is that the idea?

[00:40:33] Speaker 00:
It's not at all clear from what they put into the record.

[00:40:35] Speaker 00:
It sounds like what they're trying to say is that a bank received a letter and they won't say who that bank was.

[00:40:41] Speaker 00:
That bank reached out to somebody else.

[00:40:44] Speaker 00:
I think there's a typo in the letter because I don't think there was a letter that went to Q2.

[00:40:48] Speaker 00:
But it sounds like a bank reached out to some company called Q2.

[00:40:52] Speaker 00:
this company called Q2 reached out to JHA.

[00:40:56] Speaker 00:
Obviously, this was all eight years ago.

[00:40:58] Speaker 00:
Nothing's happened to any of these entities in the last eight years.

[00:41:02] Speaker 00:
I don't think there's any plausible argument that anyone is reasonably apprehending a suit at this moment in time from that particular letter.

[00:41:13] Speaker 00:
Does that answer your question?

[00:41:14] Speaker 02:
No, I think that does, yeah.

[00:41:16] Speaker 00:
Thank you.

[00:41:16] Speaker 00:
I see that I'm into the red.

[00:41:18] Speaker 00:
Does the panel have further questions?

[00:41:29] Speaker 01:
We actually don't know the extent of the letter writing campaign, because they have never produced the letters.

[00:41:36] Speaker 01:
We've asked for them, and they haven't produced them.

[00:41:38] Speaker 01:
There was some email correspondence between counsel.

[00:41:40] Speaker 01:
We were going to produce all the indemnification correspondence, and they were going to produce all of their letters.

[00:41:44] Speaker 01:
And the counsel just refused.

[00:41:47] Speaker 01:
The communication went silent.

[00:41:48] Speaker 01:
And the discovery is not open in the declaratory judgment action.

[00:41:51] Speaker 01:
So we actually don't know who they sent the letter.

[00:41:54] Speaker 01:
We know that they sent 1,000 letters.

[00:41:56] Speaker 01:
We assume it was all the banks.

[00:41:57] Speaker 01:
They've also suggested in their briefing, and they told this court that they never sent a letter to Truist Bank.

[00:42:02] Speaker 01:
We think, again, that's slight of hand, because Truist Bank actually merged from BB&T and SunTrust.

[00:42:07] Speaker 04:
In the district court on remand, did you request discovery just for jurisdictional purposes?

[00:42:14] Speaker 01:
uh... briefing was allowed i don't believe discovery was permitted uh... so we actually don't know and they're not entitled to use that as a shield of the sword that they obviously know who they sent letters to.

[00:42:25] Speaker 01:
We think it was the entire industry.

[00:42:27] Speaker 01:
The one thing we didn't talk about, I mean the truest agreement actually doesn't have, the only carve out in the truest agreement is modifications or alterations to the software itself.

[00:42:36] Speaker 01:
That actually, my tech sends... Did you waive reliance on the truest agreement?

[00:42:41] Speaker 01:
The truest agreement was in full force.

[00:42:45] Speaker 01:
My tech knew that it was in full force.

[00:42:46] Speaker 03:
I'm just remembering a little colloquy between you and Judge Gilstrap about the truest agreement, where you seem to believe that it's not something you could rely on, and you seem to agree with that.

[00:42:57] Speaker 03:
That's taken out of context.

[00:42:58] Speaker 03:
USAA raised that in its red brief, and I didn't see you respond to it in your gray brief.

[00:43:03] Speaker 01:
That's taken out of context, Judge Chen.

[00:43:06] Speaker 01:
Judge Gilstrap said the filing of the truest lawsuit

[00:43:10] Speaker 01:
have initiated your reasonable apprehension.

[00:43:13] Speaker 01:
Again, he kept going to the wrong standard, the reasonable apprehension standard.

[00:43:16] Speaker 01:
And if you look at my answer, I said, we actually are relying on that to heighten our reasonable apprehension.

[00:43:22] Speaker 01:
But that's because the request came later.

[00:43:26] Speaker 01:
But MyTech knows that it has indemnification obligations and agreements with all of its customers.

[00:43:32] Speaker 01:
We know that.

[00:43:33] Speaker 01:
We knew that as of the time of filing our DJ complaint.

[00:43:35] Speaker 01:
We don't have to wait until someone sends us a demand before we can file a DJ claim.

[00:43:41] Speaker 01:
Most of the time, people wait until they're sued to send the demand.

[00:43:44] Speaker 01:
So the microchip case of the Federal Circuit's microchip case says that the existence of the agreement is really what's relevant.

[00:43:51] Speaker 01:
We knew we had an agreement with Truest.

[00:43:52] Speaker 01:
We knew that truest or truest predecessors, SunTrust and BBT, were sent letters by epicenter.

[00:44:00] Speaker 01:
That's all that's required.

[00:44:02] Speaker 01:
This court has already found that each of MyTech's customers that have received letters have standing to sue.

[00:44:09] Speaker 03:
The accept clause in Section 10A of the JHA agreement.

[00:44:13] Speaker 03:
Did you double check your post remand briefs?

[00:44:18] Speaker 01:
It did come up, actually, at the hearing in front of Judge Gilstrop.

[00:44:20] Speaker 01:
It was appendix 2494, lines 19, 7 through 14.

[00:44:25] Speaker 01:
And we explained why.

[00:44:26] Speaker 01:
2494.

[00:44:28] Speaker 03:
OK.

[00:44:29] Speaker 03:
It didn't come up in either of your briefs.

[00:44:31] Speaker 01:
No.

[00:44:32] Speaker 03:
I tried to look, and I didn't see it anywhere in either post remand.

[00:44:35] Speaker 01:
We wouldn't have cited it, because we cited the overall provision that provides for indemnity.

[00:44:39] Speaker 01:
We wouldn't have cited a carve-out that doesn't apply.

[00:44:42] Speaker 02:
You're saying, Mr. Mack, I just want to make sure in response to the question from Judge Chen, you're saying that the accept clause that you pointed to that provides your hook for indemnity liability came up at appendix what page again?

[00:45:00] Speaker 01:
I believe it came up at the hearing in front of Judge Gilstrap at appendix 2494.

[00:45:04] Speaker 01:
2494.

[00:45:06] Speaker 01:
We found it at 1907 through 14.

[00:45:10] Speaker 02:
Lines 19.

[00:45:11] Speaker 01:
So is it page 19?

[00:45:15] Speaker 01:
Page 19, line 7 through 14.

[00:45:17] Speaker 02:
OK.

[00:45:18] Speaker 03:
All right.

[00:45:18] Speaker 01:
This is Judge Dillstrap speaking, right?

[00:45:25] Speaker 01:
I believe so.

[00:45:26] Speaker 01:
I don't have it in front of me.

[00:45:28] Speaker 01:
That's the first time it came up.

[00:45:29] Speaker 01:
And again, because it's a carve-out that we don't think applies, we would have probably not cited that.

[00:45:33] Speaker 01:
We cited the entire provision, 10.1.

[00:45:36] Speaker 01:
But I don't think we specifically cited that carve-out.

[00:45:41] Speaker 01:
And again, I said this last time I was here, but MyTech is a small software company.

[00:45:47] Speaker 01:
We were prevented from filing IPRs on a discretionary basis.

[00:45:50] Speaker 01:
Judge Tan, you probably understand the discretionary denial of the PTAB.

[00:45:55] Speaker 01:
They said that we were so close to Wells Fargo with our interests that we

[00:46:00] Speaker 01:
that our petition was an unfair follow-on petition to Wells Fargo's petition.

[00:46:04] Speaker 01:
So we were denied our chance in front of the PTAB for invalidity.

[00:46:08] Speaker 01:
And then now USA is trying to deny our chance at the district court for non-imprisonment.

[00:46:12] Speaker 01:
So we really will be prevented from any avenue of addressing our grievances here if jurisdiction doesn't stand.

[00:46:19] Speaker 04:
Thank you.

[00:46:19] Speaker 04:
Thanks to all counsel.

[00:46:21] Speaker 04:
Case is submitted.