we have received letters from your attorney that a certain printing of zero three seven davis built that multiple letters were sent that's a different path and i know that's that is a previous dispute between the parties component an airhead or on a kind of argument and that was resolved through communications between the parties between executives of the two parties and it was resolved over for a payment of twelve thousand have some confusion about this case and i don't know if there's an argument that you should have made that you just waved through there's a reason this isn't foursquare in this case there was a real exam here and this complaint is based on the reexamined claims which are significantly i don't know maybe i don't know what difference it makes but there's was substantial changes made to the original claims the letter dealt with the original claims did you go into the district court and say well no this letter has nothing to do with anything because this was about claims that are no longer in existence and the current litigation is about revised claims that argument was not made at the district court do you think that's an argument that should have been made or that carries the day i mean it seems a little odd to me that all of this is about the assertions made a fifteen or twelve years ago earlier about claims that don't even really exist in the same force anymore and those those claims as they existed they were subject to the letter are not the subject of the current dispute right so tell me why that's not a good argument since you you know whether it's waiter or mean i'm just having a hard time getting at is that it's correct that this lawsuit was filed after the reexamination i'm not sure why that argument wasn't made to be honest well on its face as i said i haven't examined the details of how the changes impact the infringement claims or that but just generally is there an argument to be made that the claims are different enough so that whatever was going on fifteen years ago with respect to that letter in the anticipation of the arguments your friend made about feel that it ate or kind of kind of mooted out by the current claims to be i'm not sure to be honest i don't know that that was the case i don't believe that there's significantly i think that our belief was that that didn't change the calculus for the purposes of equitable stoppel so that argument was not made but i think that the more important point here is that there was no your failure to respond even to say you're wrong we're right and made them that they clearly reasonably that you kind of agreed with their response and they were off the hook because that doesn't fit with this court's precedent in previous cases in which it's found this week i've got in previous cases where there's been misleading there's always been some sort of affirmative statement by the  patentee that there was an out it's some sort of allegation of infringement or contention of and that's why that's why three three seven matters well i think it's a different it's a different dispute valving a different patent and i don't but it's a  something they don't have to do it they do it vigorously and here we were he answered them and said hey here's all our problems with your patent and if you leave us alone why why not i think because i i think the initial offer that was made to settle the dispute was two thousand dollars that weighs towards them not towards you i don't think that it does your honor because it's an entirely different set of circumstances it was a totally different sort of negotiation  point of view a false assertion when they say that though they just chose not to but i don't think that it was misleading because there was just there was never any sort of assertion of any kind of cat made an allegation of well written not if we look at it from the point of view of being a threat i still think it is at the end i think that the content of the of the letter which is itself you're saying and you get down to two or three different layers of hearsay they finally get to the cat is saying that we allege your p happened to the salesman jeff tipton who was identified by morris as being the person who made that statement yet it was more of a well i mean he didn't he deny that it happened he denied that he ever had a conversation like that with the customer farms that client was more than a year before the patent was even issued so there's a good there's a disputed fact if you on that point even to the extent that the court considers the june two thousand and two letter as stating that there was that's the that's the main allegation of the of the june two thousand and two letter is disputed with regard to the other elements of equitable stoffel with regard to reliance there's a dispute as to whether morris took actions that it took him alliance on not responding to the june two thousand and two letter they claim that they developed and sold their product because they believe the cat was not going to take action but one of their executives mr wright testified that we would have made those investments anyway and that was that was the question was posed to him very clearly are you saying that you did that because cat didn't take action or would you have done it anyway and said we would have done it anyway united summary judgment if they claim that they've relied on the lack of response to the letter well that's evidence from one side but the other side of that is that their evidence is equivocal because mr that's another point that the so that's my point well so what the court has held in the past that that creates a judicial material fact on reliance and it also creates a judicial material fact on credit and i ask my question again how can something genuinely believes or not service stop where you are and they've set forth their facts that show they were alliance and if there's evidence from the other side then that's something that has to be a result by the fact finder not a summary judgment  what is enough on the way lines you talked about the real life so let's assume ok if we go back we have a trial whatever inquiry and that they stablish get they give sufficient evidence that yes they did rely on us beyond that what needs to be disputed whether or not they contact you contacted their customers or not what does that i mean what other facts are we could know i put it again there there are the issue of what is alleged in the georgia thomas letter of june two thousand two is also in dispute and i think that would have to be something this resolved as well if to the extent that that threat or that allegation of frenchness is being considered as part of the misleading conduct that is read the letter to the extent that the allegations in the letter about you know what it is what the letter says is that my client morris tells me that customers have told them that representatives of cat have told them that their product and for it that our product infringes your pack and to the extent that that is considered to be an allegation of infringement already sort of a threat don't respond right then and so they say to themselves they say we said doors out all right we're good and they proceed on their merry way iso so they're not as for the truth of the matter asserted is what i'm saying well if i take that as if the sole point is that they sent a letter that said that they were infringing the patent then that if that's and that's all that i think that that letter establishes that  the literally informed your client a bt that that there was no infringement and that if you continued on with what they thought were the context that we're going to bring an action against you multiple discussions over many periods of months maybe letters exchanged that is what happened in the sci gene case there were as aggressive assertions of infringement in the meyers vs book she kept even the cases of which morris relies highpoint and maybe robotics there were objections that the products issue weren't fringing that didn't happen here if the letter is the only thing that that occurred cat never did anything there was no conduct on cat part that preceded it silence and that's the key in this context is the court has held that silence can be misleading but only when it follows some sort of conduct that makes the silence misleading and this court has never told that a competitor sending a letter three weeks after the patent this issue said hey we didn't infringe your patent saying that that is innocent to not respond to a letter like that is misleading conduct the court did you raise any intervening rights as a defense in your answer i do not recall but i can address because i think you're getting to it may please the court thank you good morning i do not recall intervening rights there may have been an affirmative defense but i'm is there anything that would prevent us from looking at whether intervening rights as an affirmative defense or just an now that i think about it i want to say that we did because this does speak to your issue with th them know for sure but i believe that to be the case i do not believe that there are any actual disputed facts here i think don't write your best case on the law because this does i mean we've had i've seen this these issues come up they ring for mill year but what i realize is there on the d j acts in the d j contacts we've had enough quite a number of cases where given something like this happening with your side goes into court with the d j action and the question of whether or not there was enough to threaten or an imminent threat for you to prove to persevere on your d j right that's certainly what is the what so what is your best case your closest case your strongest case that we have close to the facts here in other words just a letter a letter that sets out the validity of the letter demand you're to me a lot of lead lawyer said demand letters if you're not convinced th isn't valid i request you provide information necessary to show why each of them do not anticipate it but then you go on to say if you don't stop doing this we're going to file suit against you shoulder i think and let me answer gent generally each of these cases seem to be specific to their facts and so i think there's actually some language that you know there's there's no precise formula to get there i believe maybe an argument but i say probably start with schol from the standpoint of hey you do have a part of this reaching out and you're asking for information in response and you have a prior dispute i think show use of the term course of dealings and that would be a the pattern of program pattern of practice yeah let's start with with even broader and that is why equity why does a good exist and what are the where does that fit here when when someone allegedly at least is is making threats and then says well w course of dealings i think the zero three seven issue is absolutely relevant because it trained morris on how jamie t v views patent infringement when you have a letter the very first letter we have in this piece of the evidence very precious because apparently there  letters that we don't have anymore from an attorney to morris and then ultimately resulted in the exchange between the principals you know we're going to sue you if we don't get this resolved ok we will stop the one instance and we will pay you and then three months later it leaves morris believes that j b t believes the morris arbor chiller infringes the pat you don't need to get to the hearsay issue because it is not offer for the truth of the matter the lower court didn't do that lower court but blah but what if they had just said you're wrong we have those three seven pat situation to guide us on what morris would have done there we also have undisputed testimony from maurice's executives on what they would have done and so what if your scenario the judge had we got a letter back then morris is now in the position it can either agree or disagree it could possibly follow declaratory judgment action at that point on its options are many if had they had responded but we know they didn't respond because out of inadvertence but they did it out of because it was purposeful it was in the lower courts found this too they chose not to respond to your scenario i understand the hypothetical it purposely didn't happen here because j v team wanted morris to compete in the marketplace i think there's a quote in there that foreigners they didn't want to write write they one of the devil they knew and morris not the bell and even some european conglomerate  might be bigger so you have twelve years of silence here i think the cases that we've talked to talk about this morning maybe get up to half of them maybe it will affect what effect do the amended claims have on the twelve years o i think i don't know that they were right i think they were more directed to whether or not the issue will allow the plaited to go back beyond the time of the fall of the reason because those claims did not exist anymore you're correct in that those kinds don't exist but then there are claims essentially where they are because you know they they were narrowed from the broccoli or go back to equity because one of the things that looks to me like the judge thought an i to you know the inequalities of is it truly fair for a party to lay in the weeds purposefully because they gain some business benefit for a period of time and i believe the c e o of j beatty said that from two thousand  i'm sorry from two thousand to two thousand and eight j b t had about seventy five percent of the market share and then from two thousand and nine to the present their market share and slid down to around fifty to sixty percent he also said when we cited this in a brief it's on appendix six thirty six motivation of perhaps why g b t you changed his mind and decided to reverse course keeping in mind too this is not the first disputed we've talked about the zero three seven lb we also had a little geisha in two thousand and nine that was brought up in the eastern district carolina on a product a device that is situated in the poultry processing line adjacent to the device that we hear about today and in that dispute j v t did not bring up the sixty two  shorter compact and it's a different device has a different per this but it's proximately place to the device that we're here about today and we did not see a counter claim we admit we concede it wasn't compulsory but it is not going back to two thousand and three believe that morse infringed the patent well still by as of two thousand and nine they prefer for more us to compete in the marketplace when it would have been absolutely easy and available to them to assert that patent they waited yet still further they had to take the path to reexamine on some of the exact same prior art that morris gave them in two thousand and two somehow claiming a substantial new question a patent build eleven years later but that and that ultimately resulted in  authority that if you have an opinion whether it's your own because some of the cases have individual believe or you rely on counsel that that somehow exclude you from relying on the actions of the patentee argument do you seem to think that it's not a scratch i would be happy if the court thinks that that's something to not be i mean you've got a hold and then they assert the that the suit on the on the new claims for purposes of a frenchman the morris with the only possibly be liable on the new claims that it to the extent that it would would infringe right because those are those planes only existed as of the day of the rigs and mission certificate for liability purposes that there's a date and time and it may have been two thousand and thirteen or fourteen forget when it was but for in no going back for past infringement those new claims didn't exist and that was the issue that was before the court as i recall  everything about this equitable of stuff of goes back to the validity contentions raised in two thousand and two if because of reexamined those validity contentions either disappear urse of difficultly changed why doesn't that also in fact the notion of relying on equitable a stumble here from that was basically the only thing it's based on earth's surface with regard to the invalidity of claims that no longer exists yet and i apologize except that  that's the same patent it is not a new patent so it would apply because those claims are only narrower claims to the extent you have this in the absence of your argument that there was never claimed necessarily that with them the broader cleaned out a reexamination based on some of that same arc and they had to do it by narrowing their research everything at that the way they are suggests i do that let's assume this letter said claims one in two are invalid because they're so broad and they clued whatever you go in for the exam and you narrow them so clearly based on at least the initial invalidity contentions which had were based on breath no longer exist if that's the case here and by narrowing the claims the stuff asserted in the two thousand and two letter is no longer a problem of of anything in other words if your good look back it comes in he buys the place and he looks at the sled or he says you know let's make a good point these claims are overbroad and they're probably anticipatory let's narrow the claims and they go and narrow the claims why is it that just the be relevant anymore and i have to apologize to the extent that that was an issue that came up with the very outset of the case that i don't believe is fully briefed here at this point if the court would like something in a briefing were happy to do that i think the court is in the core of your answer that you're already on a course of conduct in which you then misled into making what you make right because i mean you're talking about twelve years now so at what point i guess you have to decide at what point is equitable stop about the particular question though you said while ago that your lack of knowledge just to the claims of being a man that somehow mattered to have any authority for the well i always bring that up because i think that came up in the s c a case where in that case you know you had a party come back that said hey your path is invalid they did not ask for a response i think that's a key distinction and se a response that i got seven months later i believe filed a request for examination and this court in his opinion found that to be ok they're not just relying they're not just being silent or inactive they're taking action and they're doing it in a public forum where the other party first quality could have found that out this reexamined didn't happen that quickly it was eleven years later i don't know in of going back to the equities of where is the fairness does the does the does more us have to keep checking just to see you know is there a reason request is there a reason request how long does that happen it seems like some point in time that become that that would that would shift from perhaps what the court was thinking and say yeah so that's what i was referring to i'm not aware of any other case that we've cited in the briefs that spe two thousand two letter the allegations that pat was that valid and maybe they read the letter and said jeez you're right and took a while for this to sift through the system but then they said we better go and re examine and narrow the claims so that they don't why isn't that matter and there only asserting these new claims that don't i mean it's just like them saying by the way you were right you two thousand two letter that's why we haven't asserted those claims against you and indeed we're going back to doing reexamined narrowing the claims so that they don't up against up the prior ark they had said that would that be ok if it said that back in two thousand and two yeah well if it is says something of that nature in two thousand occurred well i think you also have to factor into that judgment of the length of time that it took to go get the rigs and if we were in the s c a situation perhaps a different result but you have a party that waited well over a b but then that's the point of the argument now perhaps  should be argued and and the court should take a look at that well i'd we're certainly happy to provide supplemental briefing if the court thinks that's an issue that has not been waived at this point where you said it hasn't been waived you said it in your answer or the court hear i don't believe that it was brought up from the appeal from the lower court ruling on nichols topple so that point that would we be prevented from reviewing that or bring considering that issue in the first instance now i would have to think about that judge i mean it seems to me that it would it would have been appropriate to bring it up to the trial court to the to the lower court when there was briefing on the actual stop the issue it was the proof if paragraph of that letter where it says since we did not receive a response indicating approval of our proposal so this was in the june two thousand and two letter was not the first time even to the extent that this is relevant wasn't the first time that they had received a good sort of communication the cat didn't the listener response just real quickly can you tell us what you think the the implications are of the amended claim i'm not prepared to speak to that today but i do know that the complaint that some four to that because that is the issue here and i'll just for that but i do know that the complaint in this case only in a circumstance like this where the only communication between the parties gardened this patent was a letter sent by the competitor three weeks after the pad was issued and that's the only thing that the record establishes occurred