patent false patent marking is false advertising it's not a patent claim i mean the simplest way to know it's not a patent claims his case went up to this court at one point and came back down in this court doesn't hear patent claims of federal circuit  it's a false advertising can claim and let me just in because there are many facets too but i'll read it as to the lines that apply to this case whoever without consent of the patentee marks upon or fixes to or uses in advertising in connection with anything made use or offered for sale words  with the intent of deceiving the public and inducing them to believe that the thing was made offered for sale sold or imported in the united states by or with the consent of the patentee is a violation so using the term patent marking it on the device on the advertisement the box at the device was sold in is a violation if one doesn't hold the patent and as the court said this doesn't the court's decision is a matter of law that it could decide the case all it was doing was interpretating a provision that's clear on its face it didn't really need to be terp interpreted advertisement is broadcast republish to the general public or specific mark said the market segments about your goods on the device on the box the problem is as i understand that although the definition of advertising injury might include this competitive suit for a competitive injuring because of the false marking it doesn't i mean or at least the argument is that just in the sense that there is a specific definition in the policy for one advertising injury ends and in only it has to be essentially either it actually is and i want to i want to jump on something you just said might the cue years here now and i actually i think you're wrong about that no california law is clear that if there's a potential for a car but that means something else it doesn't mean that if anybody in their right mind might think that this policy covers this thing it means that if in the course of the litigation in might develop that there is coverage but once you know when it's there  still end up litigating under the actual policy provision once you know what everything there is to know about how the this case is going to develop and at this point we knew everything there was to know about how the case was going to develop ok let's discuss how the advertising use of another the use of another's adding another idea somebody else's advertising idea idea ok so how is it that they stamp the word patents used when you put the word patent on a device and on a says in two ninety two advertising on the box what you're doing is telling the public and in this cage they call them shade tree mechanic speak well that that fix their own cars this device is special it's unique it works the way you wanted to work because it has a patent under the patent laws knows that somebody else is advertising the idea because ok and this is the the confusion you don't need to be the first to ever come up with this idea there's no requirement of that nor but how is it even your idea if it is if that if the if the stamp said you know we're the only patented one first line of original liner that might be a disparagement but i'm looking at advertising idea advertised and people look at that you when you look at a product if it's patented you make certain assumptions about it so the use of the word patented on a device is an advertising idea is a marketing a new somebody else and they have to be i clone was simply the distributor of that when cycle own knocked off its own device what it did is put it in the box that's using say cams testimonial say kim's testing and say cam's use of patented about we just said this in case it's about using somebody else's manner or means of advertising their product it's it is it is the manner and means that say can be used to advertise this product doesn't mean others can't advertise different products remember there was no other product on the market like this this there was only there were only two devices not meant to be unique but it's that but the advertising idea isn't that there is no case that says yeah advertising idea can also be an idea that others in ploy if you go and if you go to marketing school if that's your your experience you're taught here are the things you should always do in marketing but if it's your device you can pick and choose which one to use you that is what we're alleging his manner means of advertising is to use the word patented in his marketing can we talk about disparagement for a while which i know you don't seem to want to embrace maybe because of the reasons california supreme court case but and this is as that and the trial court made a finding of this that he was using the word patented on the device to deceive customers that his device was as good as or better than the device he had previously been selling which was the authentic device so while it may pop up puff up his device it's also saying mine is as good as or better and if you're if you have a finding by the court that it is in any way using the word better that's a disparagement of mr kim's device and under two ninety two it allows you to sue for a competitive injury the unfair business practice of false advertising includes a disparaging competitive injury that's with the change in the statute correct that's the change of the statute which didn't exist at the time of the judgment in the underlying case no but it existed at that it existed before when did they withdraw peerless withdrew after the the court of appeal this court of appeal re mended the case for a calculation under the new and revised thirty two us to ninety two which had included the competitive injury he did they did they withdraw from the case before we should our union or memorandum know they withdrew from the case when it became clear that this was being remanded for a calculation is on damages so that's when they withdrew from their several letters of withdrawn yet their earlier it was their letters weren't of withdrawal their letters of worse statements were not lawyer going to represent right what happened is and this is what is in the record they said this is questionable it was in their notes they found out that mr kim j kim was ill and he was in financial trouble after all of that is when the end this court's re man is when they withdrew that was at the time they withdrew so how when the court adds that you now have a right when you say when did they determine that they were that there was no longer that they were certain that there was no longer a potential for coverage after this court remanded to the district court for a calculation of the competitive injury damages well in their view it was only because it was get for me to think that patent is somebody else's advertising idea and haven't been very subtle about that but it might be a disparagement claim it seems to me and i'm actually i'm i think of an uphill battle there too but at least there's an it could be an implication that you know we're patent and  you're not but would you understand what i'm saying is to find as a matter of law that it cannot be an advertising use of another's just because many people use patent or that it cannot be a disparagement because it understand potential for coverage to mean it could be somebody might think it was covered what it means and then at some point you have to make a decision whether it is or isn't covered the court that's a question  a question why is it a question of that because there is and this is a contract like any other contract and the and the question the potential for coverage is for example if you bring an action and this is to take for coverage because as the case went on maybe they were going to allege something else on these facts all right that would be a potential coverage or we don't know which way the case is going to come out on the facts that's a potential for coverage but once we know that there's nothing in this case but refer to the other products this is like this with case said you can have disparagement by implication there are only two products so the comparison is to the prior product that they were distributing so you can see the answer to my question you think it doesn't have to refer to the other products it does not have to refer to the name of the other product or the prop manufacturer of the other product or that it was the prior product the fact of it can be by implication and i'm sorry the only thing and i may be  on your nerves on this jefferson but the only thing i want to say is the question of fact is just very specifically is on the right to the advertisement idea of another is if a person instruction because it's not a defined term in the palm of her right but that's what i'm saying we are if our constitution is that that would be the instruction and i know that instruction no reasonable jury could conclude that this was an advertising idea  you lose then that's if that was the case that would be an improper instruction would be because you can't say in advertising you can only be one no one else has come up with the right start thank  denies coverage at the outset of a case this is not a case about an insurer that withdraws a defense in the middle or right before trial peerless defended say kim's brother and his brother's company cyclon for nearly nine years trial through an appeal peerless did not withdraw the defense until after this court issued to remain and and say kim irreversibly limited his case to one claim and one issue and that was the calculation of damages under section two ninety two that was the only thing that was left at that time peerless withdrew coverage and properly did so because it's not false pattern marking is not in a numerated offense under policy it does not qualify as disparagement or controlling case law from the california supreme court as well as numerous decisions from this district nor does it qualify as the use of another's advertising idea in your advertisement so let me ask you this when he said when he when the court our court sent it back for trial yes in light of the new and the damage amount in light of the new stance that competitive  would they how would they prove up with a well i say how they did do it they did it first by by declaration and motion no no no i mean what's the competitive that's a good question  i do not know what their complaint their legs are competitive harm would actually be because here be the use of their idea there wasn't wasn't the use of their idea the charge was that cycling had stamped patented on a device that was not in fact patented with the intent to deceive the public there was no allegation that that by doing so that this will specifically disparaged say cam's product and that' argument is that it could be disparagement by implication and so if the implication is you know we're patented as i said your patent and you're not where the first where the original what about what about that implication right great question and the california supreme court in hartford v swift rejected a similar argument well we just went over that with swift well if i wasn't didn't specifically refer to or why doesn't qualify well if i may in that case the insure there said well i'm i'm triggering coverage because i implied leave disparage my competitors product by saying in my catalog in my advertisements that my knock off product was patent pending the california supreme court said that's not specific enough that doesn't necessarily mean that somebody else's product is inferior but was it not specific enough counted because it didn't refer to the other product both it doesn't it doesn't specifically refer to an ironic i don't know why this and this is essentially what i said if you're opposing counsel so why is it or isn't this just parents meant just to say or to imply pretty strongly present i'm sorry it's like that i know i try not trying to be difficult but her hypothetical which i think is really interesting is when i kicked around with my locker because well it goes to this using tornado using tornado three in conjunction with patented but i think the allegation is patent that that's the advertising there was enough connection between and inherent connection between these two products that if the by falsely marking tornado three  you're saying when x is really better then why and you're saying it is all what's not better isn't why it's the same as why why isn't that disparaging x from from from they example and in bullpen the there the insured was accused of passing off a competitor's achievements and services as its own on the website in an actual post publication they were sued by the competitor in the insured said well that triggered coverage because there's an implied disparagement the court there this court said that's not enough that's not enough to there's no actual allegation that just because you're passing off somebody else's goods or services or products as your own that does not mean that you are expressively or imply of lee disparaging somebody else you could have the same achievements here well what happened here was not a mark on a box but instead a mark on a product and that mark on the product just by stamping patented there is nothing i'm done i'm not talking about the mark on the box no we're not there they're complaining about stamping the word patented on a product a product that they or that they allege was a cheap inferior knockoff they've never said that they were that they were offering for sale something that was better they never said that they were offering for sale something that was unique or special or that another competitor you know did not have this is different than those cases that have it recognized imply of lee that when somebody says i am the only owner of a trademark or i'm the only producer of  software well if you do that to the exclusion of of everyone else well that's necessarily by implication going to disparage your competitor because it's going to suggest that well they don't also have that even if it doesn't refer specifically to their product and it would do so well in those in those limited cases it would do so only by by implication if i said i'm the only one if i'm the only one right right and so when you stand patented patented for what the design the function was that  cycle marking its product patented when it wasn't that it somehow suffered some sort of competitive harm i understand that but how do you do that that's a good question your honor  they damned if the competitive damages they're a pretty good relationship to just berridge my claim then you think they can pull out so i'm trying to find now whether the competitive damages w essentially require some showing that people who would have liked tornado to before understood that tornado three was ours i mean and something like that must have been going on the competitive well that much is now well you even if it was we have to remember the pursuit the procedural posture of this case is critically important this isn't a time where they could amend counter claim and assert and now assert disparagement by the time that that's not only going to sing on what they actually had to show to get the competitive injury right and so and so because of the procedural posture because they were limited only to two those damages th marking oh i am sure i mean if you like we can we can well i mean isn't there enough because it was a pretty recent amendment and that's why i'm kind of wondering right now and i do not know what they would have to show what i do know is that they couldn't show disparagement and that's because what's missing from here and what this court recognized and micro tack in a number of other cases is that if you don't actually have a disparagement claim there's not going to be coverage for it there's there there has to actually be a statement a false or then it would work and i don't know the answer to that was a number three was you know what you have to show did you get the comparative injuring i would say under under that hypothetical if this case was still at the pleading stage or even before trial with that what that would mean is that there was perhaps a potential that's just not right but that's the duty to defend your honor that that's what always that but it but i'm asking what do they actually have to demonstrate at the point that this case was which was at the point of competitive injury what were the elements of that nobody knows they have to show they have to show that they suffered harm from from cycling how are they going to do them to these circumstances presumably they're going to fish and something about how consumers would have reacted to this false marking which would have led them to buy this instead of that right possibly that's possible but would still missing is any specific disparaging statement that specifically refers to say kim's that way yeah i'm sorry i thought i did yes the city had already been marking his product patented ok so here's what i'm asking the question counsel i'm trying to your opposing counsel thinks this is a path of least resistance and i'm struggling with that but what if he thought that because after all the ruling was as a matter of law what if he thought ok my brother say thinks this is his idea this is how he's going to advertise his product by marking it  patented i'm going to steal that idea by marking mine patented too that's all we can possibly think this is this is a stealing somebody else's advertising idea and i had originally understood that at the time he started stamping his product the other didn't have the stamp but is that  is the advertising idea correct but it has to be the use of an advertising idea in your advertisement the only advertisement that they've identified is the product itself use of another's advertising idea in the insurance advertisement criticizing there isn't one of the same he didn't use not covered because the product does not qualify as an advertisement as a policy defines advertisement argument is that this was an advertisement all the product itself was not an advertiser does not say we want to do and that would not be an advertising idea and that's because the poll the way the policy was never understood you to be arguing that i thought the whole premise here was exactly that and then at least the stamp on the product i thought it was the box frankly i will ask your opposing counsel but whichever it is and why we need to correct something prior to this under two ninety two it was a penalty statute so if the product was not marty the prime minister marked you had penalties we cannot get penalties under the new statute that's confined to only the united states we must get competitive injury and that's where you are allowed to prove the advertisement beyond just i said patented on my device we're allowed to show how they advertise it which by the way the die first of all i remain and his attorneys were gone ok fair enough apart from today when you're standing at the podium did you ever make the allegation that there was this that that that that that you used this advertising idea oh no no because we didn't represent cycle they did not use that their attorneys abandoned them then we reached this settlement with cycle own and then we took over so the first time we can discuss it is after the fact if you don't have an allegation that and another's advertising idea was used in your client and the insurance advertisement you don't have covered liability for not starting all over again oh no and we did in the original complaint it was not under the false marking the complaint it like when you let your false marking claim you incorporate everything that's in the rest of the complaint underlying complaint the underlying complaint in the record that was say cam's yes s on the record that was say kim's allegation of jake him with jake him it at the time again you have to remember that curran ology this gets remained it to prove a competitive injury which can be not only disparagement as you're saying saying now i've got a cycling three i need to correct something cycling one was ours cycling two was a device that had a course called a bullet in the middle that actually shot through the motor and caused a damaged engine so they quickly changed to this third device but both of those were knockoffs the third device was also stated as patented so it was really saying from cycle into this i mean tornado to tornado three this third tornado so they've done this twice but in the underlying complaint we proved false advertising we can mean alleged we allege you know the court found it just in fine damages for that if found false advertising be helpful to know under the lanham act and it found unfair competition based on this false marking but what the court said is it was confined to a five hundred dollar penalty because that's what the statute it understood the statute to be so what i want to say is henri man and j cyclon have the right and say kim have the right to prove the competitive injury which is where the disconnect is now i understand you're under what you're getting at the disparagement is yes now you are selling my product as tornado now i don't know you're doing this but suddenly you stop using the one i'm using you stop buying from me and you put in the box with my name  testimonials my testing and the word patented that i had had on my devices before hand say cam had since one thousand nine hundred four use patented they were cycling was selling say kim's device in the united states then they start saying ours is now patented and so again i get to as a matter of law to say that we can't prove competitive injury because i now take him had no attorneys and he died of brain cancer as was his was six months before he died you don't know attorneys no way to defend himself we let you go along i'm sorry thank you