marty's original complaint without leave to amend on the ground that i am or he is precluded from ever bringing a copyright claim or apparently any other claim against microsoft for products it accused of patent infringement in two thousand and thirteen and even for products it did not accuse in two thousand and thirteen because the record demonstrates that the two thousand microsoft this case should reverse a district court for two reasons first and marty's two thousand and seventeen claims that accrued after the filing of the twenty thirteen patent infringement action cannot be precluded after this court's september twenty five two thousand and seventeen decision in howard vs could spite yeah i'm hammer and it does seem to say that time or as earlier time and i understand that the distribution and publication errors are separate copyright wrongs but the core of the case is really copyright claims which will be wildly different than patent claims discovering somebody has copied your code is wholly different from discovering that they may have infringed your pass so mit alleges that it didn't discover was dismissed because that was the law before howard versus could spec but it wasn't decided so the next fact is that m r t dismisses the two thousand patent frenchmen case an interesting way that case had been stayed from january three two thousand and fourteen so march sixteenth two thousand and six two thousand and sixteen because there was another case brought by m r t against capital one in the eastern virginia eastern  district of virginia where the same validity issues were raised in that case came off stay only a month before the parties voluntarily dismissed the two thousand and thirteen patent infringement case when a lot of time to add newly discovered copyright claims on april sixth twenty seventeen m r t sued microsoft for copyright infringement and we know that on july twenty the district court dismissed it is there any doubt that you could have added to copyright claims and  stolen cars anything you had but we didn't know about them and given the short time period between when the the two thousand and thirteen patent infringement case came on state and a month later when it was dismissed the whole process was how to get that case voluntarily dismissed so i'd like to go now to watch you asked me to address which is what happens if howard v any other circuit and i've checked this recently as friday no court in this or any other circuit has ever held that a patent case can preclude a copyright case this is because as recently as twenty sixteen the supreme court held in women's health that claims cannot be precluded unless they are the very same claims copyright claims arising under title seventeen and patent claims arising under title thirty five cannot be the very same point they don't even go to the same court of appeal the their so for our view the court should never have reached the four part test that it is that's a test to see if the claims are the same but here they are clearly not the same claims patent claims copyright claims are not the same claims but when you get to the four part test the first is the impairment of rights test and microsoft basically says well the right it received was an order a judicial order by the way this is a dismissal with precious little findings but a judicial license under all of media rights technology it's not just patents not just copyrights but everything that that simply roll well everything and so i mean i think that what that the reason these cases would be even more interesting because the copyright claim would have to do with the advertisements or there's something else then the functionality of the object of the the  do with it you're absolutely correct your honor and in fact whether software should be protected by copyright or some unique protection was hotly debated in congress are really not finally settled until the consul report nin the substantially the same evidence test is interesting your honor because they point to evidence that they claim is substantially similar that's not true in a patent infringement case the only and a copyright is that the contributory and inducement claims maybe do they do not that is not what microsoft is saying because that would be something wrong microsoft is pointing to cases there are cases that say somebody else to infringe the patent and contributory infringement means you contribute to someone else infringing the patent what's different about induced patent infringement and contributory patent infringement from direct pat infringement is that the defendant has to know about the patent right you have to know that you're inducing infringement you have to know you're contributing to patent or interest you could have created a completely independent are absolutely in fact  a lot of the turmoil over patents is because the defendants claim they didn't even know about the patent which often they didn't but are nonetheless and frenching i see that my time and let me at let me ask you question assuming that the copyright claims are different claims from the patent claim but that any part of the copyright claims whole area stems from mischief created in my view by the restatement second of judgments and even that at the very end of section twenty four sat as jointer of multiple claims i permissive not mandatory because of relay team you can bring any claim you have your honor here's where the mystery of comes at the very end of part h here no intellectual property litigator except possibly the one representing microsoft for these purposes with think these are the same client let me ask you this question and maybe you can explain to me what you believe the effect was of the two thousand and sixteen dismissal with prejudice i absolutely see many can crystallize and fall be it obviously accomplish something yes it obviously precludes certain claims from going forward what is your position the l crystal clear under both ninth circuit and federal circuit they can never again be sued for acts of infringement that occurred after the dismissal of that case actually after howard versus crew space maybe after the filing of the of the patents asserted now you seem to have no impact whatsoever on the copyright claims none it doesn't even have impact on future patent claims if there had been a decision on the merits you have to issue preclusion but there's no issue  most important factor to consider in this analysis well i looked at the first complaint it's fairly bare bones does it depend in any way on copying is that right would i would disagree that copying is central to that comply well when we look at for example paragraph eleven the theory m r t chose to pursue in that case was a copying theory was a theory that they had given microsoft access to their software as well as other document ten no way i mean it's sort of peripheral i mean that that the patent claim can be entirely made out with out is the main thing about a compact claim is or has to be a valid patent right yes to make a patent claim you would need a valid patent that's right and it appears that what actually happened here was that one of the patents was clear invalid and that's why the case essential to the claim that they brought that there be a valid patent and it's completely irrelevant to the later claim when there was about patent well recall the only one of the four patents was invalidated i understand that but critical to  regard to every one of the pens is out there without that certainly certainly they decided they had no chance of prevailing in the patent case they agreed to dismiss it they agreed to dismiss it with prejudice that's all undisputed the question is could they have brought a copyright claim in that case at th was a decision about induced infringement where the supreme court said we had somebody who said they buried their head in the sand they didn't know about the patent they said but they took somebodies product they ship it overseas and they copied it lock stock and barrel and the supreme court said that is an act of induced infringement it doesn't matter whether you knew about the patent or not you took somebodies product you copied it and you should have known that when somebody has a product it could be covered by patterns and that is an act of induced infringement and when we look at chief complaint they were on foursquare's with that global tech when we look at what they pled m r t didn't plead this was an accident microsoft accidentally stepped onto our land they didn't say that in two thousand and thirteen what they said in paragraph eleven at yar one eighty eight m r t made this technology available to microsoft on information and belief microsoft used the information it learned from mit including information relating to controlled data pathway technology that is it didn't say that it copied the source code when i say somebody i gave what was so michael there allegation here is not actually that they copied the source code in the current complaint the allegation is they took the software they reverse engineer the software and they used that to copy or derive the protected media path and when in two thousand and eleven they said we gave microsoft our technology our c d p technology and they used that to make their p d p that is either a copy or it could be a derivation certainly but the allegation is they took what they learned from us and they used it to build their solution not only that they did it according to marty they say microsoft couldn't  develop this itself it was unable to do so it was failing in the marketplace there was a market demand we were the first ones to solve it this is what they pled they were the only ones so they go to microsoft and microsoft takes it that is the alleged bad act the alleged copying all occurred in this two thousand and five time frame so that is what cause marty and i had to have this belief that they pled in two thousand and eleven on information and belief microsoft preclusion purposes i mean if if they were brought together one of them would have gone to this court and won on appeal and the other one would have gone to the federal circuit on appeal and presumably  they could have come to conflicting conclusions of some kind or at least not necessarily the compatible conclusions and the fact that they go to a separate course certainly suggests that congress doesn't think they're all that related how would that work have you ever seen a case do that split up like that so it wouldn't work that way your honor copyright and patent claims are often brought together we cited many examples of it and when they are appealed they go to the federal circuit because they're patent issues so the federal circuit cases in the briefing where they did so and if i don't think it's ever been in dispute that patent copyright cases can be brought together and really that the dispute and it was raised here again today there's this sweeping claim that somehow because each act of copyright gets its own statute of limitations that therefore claim preclusion simply doesn't apply to copyright that is the logical conclusion of the argument was and i understand my understanding is that it just apply going forward and you know i and i understand there's that does seem to say that flat out and doesn't seem all that sensible applied to the situation if you actually thought there was collusion well what the argument as i understand it is that each act of copying each distribution of the copyrighted work that they cite to the patrol case is a new cause of action under their analysis and so imagine a simple case where you had somebody who sued for copyright  he would be able to do it again going forward because the facts would be the same underlying facts but there's a reason both claim preclusion issue preclusion exist and it's for situations like this where somebody decides their case is simply not sustainable maybe it's because of a decision from another court maybe it's because of an adverse ruling in this particular court they lose on summary judgment or some other issue maybe maybe they you know just decide they don't let alone but a growing basis what you're going forward issue is that howard says we're going to create a hard fast rule just sold to get this over with essential and the question is why isn't that hard and fast rule apply here it doesn't apply here because in howard the heart to be clear the hard and fast rule and howard involved a situation where you had a new and separate event the first case was about retaliation and the job that may be the sensible rule but it's not the rule that articulated but again when howard talks about call a new a new cause of action we have to remember in the context of the four factor test we're not talking about new cause of action as in anything somebody could put in a complaint when this court talks about cause of action in the claim preclusion context it is looking is this something that arose from the same facts does it involve the same evidence does it have the same rights and so on so when howard says we're talking about you know a new a new cause of action it is talking about that for factor test and talking about is there some new fact in howard there was in fact there was a retaliation for the lawsuit which was separate and occurred later in time than the retaliation on the job so those are two separate events distinct separate in time i think one was two thousand and one was two thousand and eleven that is worlds apart from what we have here where we have a single bad act before both  we have a first bite at the apple on patent loses well decides not to pursue and then we have an attempt at a second bite at the apple based on that same transaction so when we go back to our four factor test  the facts and evidence here it's not simply the copying aspect of it that would have overlapped we also would have had evidence of the source code for example the source code would have been critical in both cases it would've been the same source code like this you would try to see are the claim limitations in the code for example there was something called a controlled media pathway in the patents and it had to divert data from one place to another place the way you look and see if an accused product like microsoft windows is doing that diversion from one place to another isn't the code in fact that's the only place is it correct that there are two kinds of code there source code in there or something else called operational code or something like that object code object and they are completely different in is critical here source code is secret that is you know under the hood the code what the engineers write it then gets translated by a computer program called the compiler into object code that the computer runs alleged here is that they put their their watermark if you will in the object code not it's in the source code but they say they can also find it in the object code and so it's this is not a case like some of the case cited where you have some hidden fact the watermark was there for anybody to see according to m r c and as they played it and that's the critical distinction here but not about the limitations issue in the case at this point it think for we felt at the time the contract and d m c a claims almost certainly would have been barred here by claim preclusion copyright obviously there is this ongoing doctrine that would have come into play but certainly would have come cut off  some period but but we aren't that's not was not addressed by the district court is not at issue here so we talked about facts the copying the evidence evidence of sales and so this is not we're not saying as m r to characterize that there were free from all time for all claims they could bring but what we did gain from the dismissal with prejudice was a finding that we were not in joint that from this allegedly taking their technology that we are not going to have to stop selling it and it is the one if that come up with another pet and that's another issue i did want to address the federal circuit has applied  four that was in the other case what the federal circuit has said there is that you have to look at two things is there an overlap between the claims in terms of what the scope and is there an overlap in the products in terms of what they're accusing that is their test for patent cases it is not this bright line no preclusion in patents that is not how i read the federal circuit status not how they read their own test in fact both sides i think there were two federal circuit cases cited where they did apply preclusion one one there was actually  send you pharmaceutical case the claims there actually there was reexamination that changed the claims so the claims were different but they still applied to collusion i see that my time's expired thank you thank you this is what he's referring to are one in eighty eight paragraph eleven of the two thousand and thirteen patent case on information and belief microsoft used the information it learned from mit used information not copied source code used information it learned from m r t including information relating to the control data pathway technology to build what microsoft refers to as the protected media path technology in architecture copying wasn't goes to perhaps willful infringement gets you more money but is not in any world central to patent infringement he's counsel is correct there are times when you can actually be go back and try to sue microsoft for infringement of patents where the act occurred before the two thousand and thirteen patent infringement case was filed or preschool before it was dismissed were barred we can't bring it with precluded it's gone that's what happens when you dismiss with prejudice those claims for acts that occurred before the