today we have three cases scheduled for oral argument we also have one case which has been submitted on the graves and for the purposes of the record that metrics only had been issued now in our papers we cited a litany of case law mostly in the reply brief of pages three to six indicating that when the court permits that amended complaint to  is just to challenge the attorneys on the well the individuals have an independent right to challenge an equitable column when you're talking about that before be talking about it in the context of the right just to get money on the individuals that you talk about nelson they moved to end the individuals ten days after final judgment against the corporation was was and so they were within the rule fifty nine tom here the trial judge would have applied not to file any post judgment motions after she ended the july judgment but they did file it within fourteen days of when they finally quit so maybe it will fifty guys still applies but even if it doesn't the only way or the way she could let them after that same claim upon which final judgments been entered is to do it under rule sixty and there are many cases and and treatises that we've cited that says it's one or the other that distinction doesn't matter whether they added the individual the more critical distinction is that when the amended judgment was entered in that case all the parties appeal to this court this court's opinion it on the it on the case says that the corporate defendant and the individual that have been edited by the poster that motion appealed and then they say late this court says later in the opinion that neither of those parties has challenge the inequitable conduct finding and therefore the only issue  in court i'm sure that but even if i'm interested and the individuals are deemed to control it remember in the ohio cellular case the company and the individuals come up no one appeals the inequitable conduct so now it's fin they apply collateral estoppel here after the judgement is altered in the post judgment motion to the individuals the company and the individuals come up and they do appeal the merits of the inequitable conflict we're all good with now you don't have the final fees judge they'd have an attorney's fees judgment against only multi metrics there was two ways to get the individual senate they could do a post judgment motion to get them in but then you got an underactive judgment and this is jurisdictional there's no trace of the contrary the other thing they could have done is let this appeal go through without amending their complaint and sued the individual separately you can see off the top paragraph paragraph twenty seven they specifically charge these three additional parties with the same an equitable contract after final judgment that the iran of the only evidence the district relies on if you read the opinion that i could see is this idea that they couldn't remember dates but the problem with that is the dates that they gave that she said they lied would not have made the problem go away they still would characterization of what the trial judge found she did make all these editors findings about the dates being wrong and then you know testify but but the more castle the defendant more piece of business guy he's not an inventor and the only thing he file the patents and we think looking back at their record that one of them mad and it but there's no evidence that says boras kestrel knew about that and he didn't he never had a chance to defend themselves or bring evidence of this because we didn't know the thing was an issue that order i think the way the judge did it as i recollect is that in may of two thousand and nine she entered just an opinion on it and then what judgment is the january tenth thing that basically subsumes everything before that will tell me we're saying judge is that when when she alleged the filing of an amended complaint for an equitable conduct against reporting and when she did that after the judgment had been entered against one party on that judgment with respect to individual if you want to perhaps i would agree but even if that even if there is no judgment of the attorney's fees you still have this issue that you had final judgment on an equitable conduct against multi metrics and then there were three other that either in november of two thousand and nine when she disposed of the post judgment rule six the motion to air the individuals were in january when the individuals were in correct the judgment has to be vacated not the claim that they've really against the additional parties doesn't have to be identical it just has to be such that it lives in some of these cases it just has to be related if you let it find out what litigation then you know that's been briefed and we don't think it's correct but that's where we are it's just that but it still takes it trying to do chores with an equitable conduct and held liable for it if they were charged with it metrics that will give you that if you have a prior final judgment of an equitable conduct you could come you could apply collateral the stock will exist and for their control you don't have a prior final judgment even against multi metric for an equitable cause because we're appealing of the it there was a judgment of an equitable card that it was vacated in the post judgment motion to add the parties a new judgment was a good cooperated and said everyone committed inequitable caught up and we all appealed it so ran on the rule fifty four b you still gotta find some responsibility that these individuals knew about what was going on and they never had a chance to try the reasoned well the rule fifty four b judgment we must remember was deciding multi metrics his claim against clyde materials if the court looks at the rule fifty four b judgment this is page eight sixteen of the appendix it's very clear the client we applied materials have no ability to amend their claim against us there's nothing we could have done in our amended complaint to change their claim against my client that was all that was decided that will fifty four be judged and nothing we did or could have done there after it could change that point so that's the first reason there was no amendment of the claim decided in the will fifty four b judgment because it was a very claim that was decided second consult with his clients including the individuals including the individual separate counsel at the time individually mr brock are aware of mr problems the storm will record he comes back and says on the record to the to judge patel the district judge we would like who controlled or we didn't participate in the in the litigation they didn't do any of that and so i'm not sure what the process in this case but have been given those eighteen months of litigation over these fees during which time there was no closer discovery there was no time the district court said you can't take a subpoena or you can't take discovery or rent and she never denied them a single request so well i'm not sure that this is a case in which is any problem with trickery against the  procedure for that allows a judge in the time for people judging to be told indefinitely like this for eighteen months there's no rule every will rule for and the federal rules are crystal clear the whole point of the system is to make the time to appeal an abuse and so will force at the time to give us thirty days it's only extended if you file one of these four or five specifically identified motions we didn't file any of those motions oh good to ten days of the judgment are we didn't file any motion of any kind within ten days rule for says that if the district wants to extend the time to appeal it can only extend it for thirty days there is nothing in any of the rules that allows a district court or a body to extend the time taken up to take an appeal for eighteen months secondly as i said before what we moved to amend was our own claims and so under will fifty four the point of all fifty four is that some of the claims are finalized for  appeal the remainder of the case proceeds that's what happened here their claim to prevent against us was decided became immediately appeal our claims against them for example for correction of inventor shit for fees and sanctions that's unusual or strange or any way on to work so we moved for fees and sanctions under two eighty five in the courts and their power against the individual tells you the facts on which we were speaking fees and sanctions are this somewhat of finding a finding of an equitable conduct so it's not just the fees we're talking about it's the actual finding no i don't think so your honor there's no find me when that will conduct against these individuals i mean the finding of a neck will conduct is against the owner of the patent and relates to the  important in front of her about multiple subjects there is an attempt to bribe a witness a critical third party witness to which there's never been an affidavit or declaration or testimony denying that effort deny the fact but we're done hundreds of witness list they suddenly spontaneously without any understanding what mr thompson was going to say change their testimony claiming something else the mr thomas came testified that he had just met with them a few months before the deposition even though they had said he had moved away and they ha seen him in years so you have issue after issue after issue i mean every possible kind of litigation misconduct so we think first that alone as the judge more noted is an independent alternative based at the district court gave the work of the individual sanctions against you look at the record there's no dispute that these individuals were aware of and committed an act will conduct as just more pointed out the findings are very clear that mr burr scuffles to start with him that he is the one who managed the prosecution he said he he didn't say oh my god i can't believe there's a signature this must be forged who did this how could this have happened he shrugged his shoulders and said well it's not by my hand right that kind of testimony is something a district work can certainly rely upon and finally and most importantly this group has held them once or has held that the only way to challenge whether wolf before was appropriate is to take an immediate appeal if you can't wait a year and a half and then go back and collaterally attack the appropriateness of a fifty the only thing i see on the call just to make sure that we're clear that the word control doesn't mean as they sometimes seem to suggest that they exercised complete control over the entity what it means is a substantial participation in the presentation of the case at trial and way to say that they did not control for purpose of litigation this case from all to matters the last issue that i would like to address is the question of due process which has been raised a number of court went out of its way to give the process i mean i cannot emphasize this enough times the district court said in perth we're finding individual liability for them in footnote two she said the individual defendants do not contest any of the works factual refused to consider any new evidence perhaps you could say it was unfair or there's some sort of due process issue but here they were given every opportunity and they never came forward to challenge it so it's difficult to see how a district court can consider can and can have committed interests a couple of times individuals could not disputing equitable conduct below because they asked to do that and the judge said you're bound by collateral estoppel because i already found an equitable conduct against the company so i'm not going to let you the second point is to say that the rule fifty four budget involved infringement and not in equitable conduct is just wrong the political parties that would named in the amended complaint if those reporters had been the case in july the judge and the judge had certified multi metrics appeal up to this court under rule fifty four while leaving the other three individuals to continue to litigate the inequitable conduct charge of the district court that would have been deemed improper as an improper certification would have been sent  match challenge and now we know it's too late to challenge whether the district court properly certified the judgment of the rule fifty four that's not what we're saying what we're saying is that when you came along later and asked for the individuals to be challenged with the same claim the only way the judge had jurisdiction to do that was to vacate the rule fifty four if she didn't vacate the rule fifty four then everything she did after that it gets the individuals whose jurisdiction  the trial below but as i remember the brief as best i remember it they put in a brief asking to be named and asking to have a right to come in and present a full case and the judge said i'm not going to give you any of that because you're bad this is a thirty eight you're bound by collateral estop