number twenty dash one thousand one hundred and sixty five big baboon inc versus sap america inc mr reich thank you your honor so this is the parallel case involved in the award of attorney's fees under thirty five usc eighty five to sap and hp for litigation from the the infringement suit which we discussed earlier and basically for to award to justify an award of attorney's fees under often sickness a district court needs to have to weigh the totality of the circumstances in that case and find some type of litigation misconduct to justify that and in this case the district court had a magistrate prepare a report and recommendation on the attorney's fees and the district court basically just adopted it so when i don't understand your statement that litigation misconduct is is required before fees can be awarded that's under oxygen sickness your honor so you need to have some you know definitely something of either unprofessional and improper conduct or litigation misconduct and it's again totalitarian totality of all the circumstances in a case and including those parties conduct including the improper conduct of the movement for attorney's fees so here would be sap nhv and as your honor is aware from the earlier case there's quite a history between the two parties here leading to this case and interestingly the the report and recommendation doesn't mention any of this type of history regarding reexamination of sap or the cdm as a petition of sap and doesn't discuss how the mapping of the claims of sap on to claim shares team started this and basically then adopts its own narrative of the facts to try to find litigation misconduct misconduct or improper what the court found was that that the pursuit of litigation was objectively unreasonable right yes yes your honor that's correct and basically awarded fees based on some arbitrary line in the sand where big baboon should have known that this the patent would be invalidated in the manner that the court did so basically on based on secret sales then that were filed under seal that would if the patent wouldn't be held invalid that we would have no we would have no idea about and then the the ministry judge specifically found that that you had been told and in two thousand and eighteen about records that it had previously been produced in two thousand and twenty in two thousand and ten showing the pre critical dates shipments if that was the case your honor then it would have been in the reexamination it could it would be two things there's one in the earlier case the first case where there were records that discuss sales but again thirty one and all that was also in the reexamine and by the time the second suit happened we had the declaration of greenspun basically saying everything is present in there but what enablement and sets that out and that is sap then doing let's assume for the moment that we reject your position about greenspun and that that we conclude that that provides no contrary evidence to the invoices and the characterization of the invoices as offering the web enabled product for sale in october one thousand nine hundred and ninety six is there anything wrong under those circumstances with the award of attorney's fees so basically your honor where is the unreasonable conduct from the plaintiff to proceed to see if these secret sales are in fact secret sales all of this was produced under seal all of this was unaware to the 25th they had never heard prior to he only awarded fees for the time after which you became aware of this right yeah so but a significant amount of fees and for a wide range of activities basically for the case going forward you didn't do any discovery to dispute all those documents that were provided to you did you there was no there was no discovery to be had it was not in discovery the case the case was still in claims like initial claim construction and claim discovery so the full discovery had not even opened in this case so to to to to go forward so we didn't have you had they they produced these records basically alongside of their summary judgment motion now they did offer the will provide declarations and whatnot right now people to depose and a very short time period but in view of the prior actions of sap the testimony of greenspun the literature that showed that hey this is not there is evidence saying this is not correct these are not on sale in october of one thousand nine hundred and ninety six the plaintiff did proceed but what's troubling is in the report and recommendation all the sudden the magistrate starts giving a unique narrative of the fox calling big baboon serial litigants which has had one case and won it too and then that first case to add plaintiffs to who the judge said no file a second case which big baboon did and then you know in the meantime sap repeatedly twice attacked accountants of big baboon so it doesn't i don't the qualification that somehow big baboon was a serial litigant it does not it seems it seems incorrect and again so what's wrong with the district court's conclusion that it was unreasonable of you to continue to litigate after the invoices were called to your attention and you were told that the invoices were for a web enabled product so they filed a summary judgment motion backing that up and then right after that when the summary judgment was filed the plaintiff consented to all extensions and stopped everything while this was adjudicated just within really if the position is just because one party merely tells another party hey i've got evidence of invalidates drop it right now and that party doesn't show it and that party hasn't brought it that would seem very unreasonable to say that that's litigation misconduct if you push forward on that that cause then should i just should the plants just take the word of sap sorry you better not do this and be able to at least call the hands i guess they say okay you say that and prove it and so by the time the big baboon actually sees all this evidence and these declarations and things like that you're at the summary judgment stage at which case big baboon agrees to start saying everything and staying in discovery and staying in and not pushing forward to see what the judge is going to do so that to me that is reasonable litigation and it's certainly not wasting the course resources so again the mere fact that one party says i have this i got a gotcha and you have one party wants to wait and see if the gotcha is legitimate or not shouldn't it in of itself it is unreasonable right so as soon as there's any further questions you may open in time okay hearing no further questions let's hear from mr ham good morning your honors and may it please the court the federal circuit should affirm the district court's finding that this is an exceptional case and it's resolving attorney fee award at its core this case is exceptional because big baboon does not know when to stop no matter how weak it's position the district court correctly held big baboon's case on the merits was exceptionally weak and under octane fitness the substantive strength of the party's litigation position is all that's needed to award fees and to find a case exceptional there does not need to be unreasonable conduct even though there was in this case this is a unique case in which big baboon's own accusation created its patents in validity big baboon accused the product of infringing its patent but that product was sold before the patent's critical date this makes the patent invalid under evans cooling and as you've pointed out at least by august 31st two thousand and eighteen big baboon well knew the facts and the law that invalidated its patent august 31st two thousand and eighteen forward is the only time period for which the district court awarded fees big baboon knew the facts it knew it accused r3 thirty one because it made that accusation and big baboon knew that sap sold this product before the critical date because big baboon had uncontested precritical date sales records which big baboon first received way back in two thousand and ten and which sap reminded big baboon of on august 31st two thousand and eighteen big baboon also knew the law in june eighteen it was big baboon who introduced evans cooling to this action by featuring the case in its failed motion for partial summary judgment in mid august two thousand and eighteen big baboon acknowledged to the district court that absolutely if it accused the pre critical date product of infringement it should be out of court and on august 31st two thousand and eighteen sap reminded big baboon of the evidence and the law showing that the accused product was sold prior to the critical date but big baboon does not know when to stop now big baboon argues on appeal it was justified in filing suit as retaliation for sap's prior patent office proceedings against the asserted two seventy five pay at patent retaliation is not an acceptable reason under any standard for refusing to stop suing on a plainly invalid patent big baboon also argues on appeal that it's position on the merits of patent validity was reasonable but big baboon waived this argument by not making it to the district court in any event big baboon's argument is based on misrepresenting the evidence we believe as you've discussed this morning big baboon insists the phillips greenspun declaration states the accused product was not sold until one thousand nine hundred and ninety seven after the critical date but the declaration doesn't say that and it doesn't suggest that big baboon also argued its litigation position was reasonable because it accused a different r3 thirty one than the prior r3 three prior r3 thirty one but big baboon provides no evidence in support of this dual identity theory in addition to big baboon's exceptionally weak position on the merits as an alternative ground the district court found this case exceptional because big baboon litigated in an unreasonable manner which is the second path that octane fitness sets out for showing that a case is exceptional big baboon abusively filed suits on the same patent because big baboon does not know when to stop on appeal big baboon insists it is not a serial litigant that it filed only one patent suit that's simply not true it's filed one suit on the two seventy five patent in the northern central district of california and when that suit was over it filed a different suit on the two seventy five patent in the northern district of california and as sap noted in its response brief on top of that big baboon sued the patent office in the western district of washington to challenge its reexamination decision against the two seventy five patent while big baboon was simultaneously appealing that same decision to this court that's three patents suits not one the district court also found big baboon's litigation conduct unreasonable because it filed a meritless motion for partial summary judgment the motion was meritless because big baboon sought summary judgment based on evidence about a different product r3 thirty e then the product it accused of infringement which was r3 thirty one big baboon also argues on appeal that its litigation conduct was reasonable because three times it agreed to discovery extensions big baboon's extensions were too little too late sap requested a stay on august 31st two thousand and eighteen when it sent big baboon that letter connecting all of the dots about why the court would grant summary judgment but big baboon didn't agree to the first of the three extensions until january two thousand and nineteen that's four months during those four months sap was forced to spend a significant amount on this case and it's that expenditure which makes up most of the court's fee award finally big baboon argues the fee award is too high it argues that it is not reasonable that sap spent four thousand five hundred and eighty one hours briefing its motions for summary judgment and attorney's fees again big baboon's just not being upfront the district court opinion is crystal clear that it awarded fees for one thousand nine hundred and sixty five hours on these motions not four thousand five hundred and eighty one hours and i also wanted to respond to a couple of things that came up in mr reich's argument he said that the case wasn't in discovery during the summary judgment phase but that's not true it was in discovery so i think that argument can be dismissed with as well and it's as you've pointed out they didn't try to take any discovery on the thirty one products so to the extent they say they they they should have had that opportunity they just didn't take advantage of it so in conclusion the district court did not abuse its discretion in any way and the federal circuit should affirm all challenge aspects of its decision is there any questions i'll try to provide a response and otherwise i'll yield the rest of my time thank you okay hearing no further questions thank you mr reich so several quick responses to mr ham so first and foremost i'm unaware of why sap brings up the patent office lawsuit challenging the three examinations that's a completely different matter and and different procedure for trying to undo a reexamination so that's not a lawsuit or a patent lawsuit against anybody so and in fact referring him to the to the the opinion to magistrate's report even though they said that arbitrary dates as in two thousand and eighteen that somehow that we that big baboon should have known it was still some time before they did see a declaration or any testimony from rogan campus saying what is going on in october of one thousand nine hundred and ninety six and again i don't believe it's reasonable to say that you just have to take someone's word for it before you have to show it to you again he also brought up discovery plain discovery was open but not full discovery you know basically the fact that you know again mr ham called us a serial or called big baboon a serial litigant it had one lawsuit it tried to add as the same claim that that lawsuit the district court said please just do it somewhere else it wasn't raised in the first suit so big baboon had to then bring an action against sap and hp in the middle of the district of california because tc heartland was becoming clear that jurisdiction is going to have to be with people of residence even within the things and that is the law now too so with that unless there's any further questions you have my time okay thank you mr reich thank you mr ham the case is submitted