we have a busy morning this morning we have five pieces that we're considering for cases are set for oral argument here and one kit cases and submitted on the briefs so let's get started with the at least personally find to be quite serious yes your honor so the issue in this case is whether g has standing to have its appeal heard and in particular whether g s show on a injury in fact now while we agree that in many of this court's decisions regarding standing in the i p r context the focus has been on the likelihood the tactician or with the cepat infringement lawsuit but it is also clear onder over this court's preceden cream court precedent that the specter of a lawsuit is not the only form of injury sufficient for standing economic injuries and competitive injuries are also on the basis for finding standing here harm and the reason for this is because of the very unique nature of the particular market the particular engine turbo fan engine market that we are dealing with you have demonstrated dollar losses at which you're correct your honor we've demonstrated suffer economic injury in the form of increased research and development costs that are specific to the six zero five patent because g e hass in this particular instance already designed a engine that includes technology like the variable area fan nozzle here that implicates the six o five as a result because of the very long development it's not even in the works your honor it's or it was already designed as that's does this declaration say that specifically somewhere it does in the paragraphs that discuss the quick see engine this is paragraph s paragraph fourteen for example which includes a picture of the actual quick c engine and a g e previously had developed as a result of that previous development work g e actually has this type of technology this variable area fanned nozzle technology in its design tool box and when the six zero five patent issues with this was designed in the seventy's right it was your honor but still the point is that this is now an option the g e has when it is determining whether to design a particular engine for a particular customer i mean if this was designed in the seventy's how could you possibly risk infringement for this specific design from a later it's not this particular design that would face an infringement lawsuit it's not this engine we agree with that your honor what it is is it's the result of the fact that g and actual harm is caused by its economic injuries it's caused by the fact that when this a pattern like the six zero five and issues she must take it into account when it is considering it design options for new and future engine designs you have this engine on the shelf now since the seventy's yes and and she has chosen not to move forward with this engine for all those years forty fifty years but it still is an option that does that that she has never even made it that it can that it can provide to its customers now it can no longer do that because of the existence of the exact engine correct your honor but we have no guarantee as to how u t c could in the future interpret the six o five it's a variable area fan nozzle can be used to adjust the pressure ratio of the fan when very broad technology but when you say there is a long lead time can you give me some sense of the lead cut the time involved in designing making testing selling are we talking three years are we talking twelve years what are we don't know it's you can take up to a decade in your honor and that is what mr long does to the last of those points namely selling to boeing are so good it is it's literally the the process it is the engine or the aircraft makers will come to the engine designers and say we are planning to introduce a plane say in twenty twenty five we need it we're going to need engines for that plane that process can begin as early as two thousand and fifteen or could have began as early as two thousand and fifteen there is so much research and development cost associated with building these planes not design testing them then getting them certified all that has to occur before they can even offer them or sell them to if they're going to claim is at issue here at what point in their in the process w activity covered by t seventy one a place well it's not just drawing it obviously not doing computer simulations not what point is there in making using the sewing importing it could very well be in the in the making because g e is a united states company it would make at least a test engine that would be in the united states that could and could invoke to seventy one day so it could be as as early as making it the first test engine and that could be somewhere in them in the middle of that wrongness one of that is just switching topics just a little bit but one of the one of the striking things i guess striking to me things about that paragraph fifteen and sixteen and then i guess with a twenty two is we have and yet nothing is said here along the lines of we have had airframe manufacturers come to us and ask us to consider various designs we have like to keep our options open and that sounds rather well joe tact something that we said was insufficient but i believe your honor it is much more like the biotechnology industries case that this court ruled on  in that case that's four six four ninety six after thirteen sixty two and actually face to the district of columbia and acted a statute or an act that addressed a way to control patented drug prices within the district and that act is actually analogous to the six zero five in finding standing in that case this court said that whether the act isn't forced or not its presence is highly likely to cause pharmaceutical manufacturers to incur engineered that could possibly even infringe because it's not as mr long declared it is necessary that g e incur costs in making sure that it designs around any concern with respect to the six o five and out all in order to avoid running afoul of the broadly claim serial killer if you may decide to do that we may or not mr law has declare that g e has already incurred these types of economic costs as a result of having to design make to ensure that its designs do not run afoul pisani worded claims he says that but he does it it's hard to link that to the claims at issue here i mean i'm honestly pretty sympathetic but we have language in j that says you have to establish concrete plans for future activity and i don't see that in your doctor ratio i don't know i mean maybe that standard is is too stringent but we're bound by j tax so how does your declaration show concrete plans for future activity it seems to me what one of my colleagues just said that what you've said is these patents create a potential barrier for us and essentially the limit our tool box and so even though we don't have specific plans now that limitation of our tool boxes that sell enough damage but that seems inconsistent with the standard we've repaired and attacked when i reject it your honor it appears to me that the only allegation that the petitioner made in that case was that there was the likelihood or threat of a patent infringement lawsuit there are as the supreme court has said there are other bases for fining standing such as suffering an economic and competitive harm and that's where we believe in this case g e the shoe on to mr long's knuckle aeration which is now been reported that it has incurred research and development costs expenses the let the narrowing of the total opposite that said appropriate analogy is it in itself an injury in fact that causes economic car it is a competitive injury that's correct your honor and an economic injury but it's certainly competitive injury too because this course in a canadian lumber competitor standing constitutes an injury in fact when the government acts in a way that increases competition wark the plaintiffs competitors and that's the case here the issue was like pat i ask a hypothetical about this i mean this is obviously not the facts of your case but suppose you have a proud new company that's never been aircraft engines before i know that seeing this probably completely unrealistic but bear with me and they decide before they want to even spend any start up money or anything at all they're going to go try out to clear try to clear out preexisting patents from from legacy makers and they go to work which they're entitled to do they lose if they appeal is it enough for them to entering the market who is being prudent with respect to making sure that they don't in endure which is g e to sit in it costs hundreds of millions of dollars designed these engines and if you were to to ignore a patent like the six zero five patent here were geo already has a design in its toolkit if you were to ignore it introduce that engine and then get sued the the it's commercial catastrophe you will have lost hundreds of millions of dollars because you know market like this where you only have three competitors to let me just received an injunction let me change the hypothetical and say instead of a potential competitor you have some kind of consumer group th ere's only two manufacturers out here that create monopolistic effects the government's not doing enough we think these patents are good and we want to clear away the patents and make it easier for others to enter the market with that consumer group have standing by to feel that consumer group itself may not but the supreme court case law is such that in these situations like that if a specific member of that consumer group is able to show that it has suffered any injury specific to it then it's possible consumer group is smart and gets a bunch of like trout you know airline travelers frequent flyer people and says you know because of this  it seems to me that you're either at the j tech or we might be pushing it a little bit further still but i am troubled by that populate language well i would i would again say that the difference in all those  what this court looked to was the threat of a lawsuit that is not the only basis for standing the other point i want to make before i guess i'm going to i'm going to stop you there because you were almost all your there are a lot of   the six zero five patent does not claim doesn't even describe and certainly itself does not solve the the claims when we look at the claims themselves they are completely agnostic as to any reverse requirement of an engine the practices reverse thrust could infringe that those claims in an engine the doesn't practice reverse thrust can infringe those claims so we need the border area because it did not take into account the scope of the claims when it considered the obviousness of of the duesler it was a combination of tell me tell me what's wrong about thinking about it this way first that and what the claims cover is different is a different question from what your particular theory of motivation would be you could have said that somebody not interested in short runway planes would be looking at willis and taking from well as a bunch of stuff not dependent on use for a short runway and therefore that person would have been motivated to combine it with a petition and supporting declaration concentrated really pretty much this is what i want you responded really pretty much only on somebody interested in willis for the kind of plane willis was describing and therefore it's simply a failure of proof not a logical problem what to think you're on with respect to the depth of the merits on the  proof our expert said specifically that there was a motivation to combine because it was known that the axially movable sleeve in duesler was more lightweight say a person of skilled in the art would be looking at willis for a purpose other than it short runway played he because if he didn't and i don't really not sure he did there was have the motivation to choose those benefits at the risk of incurring the deficit's i believe that our expert looked at the willis engine in the context of what the scope of the  six or five claims where the sixty five claims are again completely agnostic to show as to short engines as to the length of the runway they don't need to be commercial it doesn't need to be a commercial engine at all so what what our  focused on was correct he focused on the actual scope of the climax and what the board came back with was an analysis that well maybe this combination this combination wouldn't work as well to land on a runway of two thousand feet except for ah but that is contrary to what this court has said in for example in re tat where this course says specifically when we look at the issue of principle operation it has to be visa v the actual claim that it that is at issue and in that with the court found was that the combination would still be operable these are the broad scope of the claim that was that that was the subject good morning your honors mike the lake for united technologies corporation as we transition from the article one proceeding in front of the patent office to this article three court we challenge standing based on some public statements that she had made in particular in september of two thousand and fourteen g s chief technology officer said they had considered the gear and very consciously decided not to take that approach and this was building on years earlier they had said the gear was a bad idea and so based on those public statements it looked like he had decided they weren't going to be in this space and so we challenge standing and at that point their burden was clear and the court standard based on the five generous case there's three avenues you can pursue the substantial risk of an infringement whether they're an actual or perspective licensee in the third category whether they have taken action that implicates the claims here or claim seven through  six o five and why does it have to go so far as they have taken specific actions why cannot economic harm resulting from the existence of the patent and making them increase their and d costs and other avenues to get around these and be sufficient for article three standing if they'd pursue the octomom a loss theory a few points your honor  based on the facts in this rock heard there isn't a controversy of sufficient immediacy in reality house and i when i was kind of wasn't really calling for a factual answer i was asking because we in our earlier cases of looked at different theories and it seems to me that you know particularly when we're looking at risk of infringement that's one thing but that can't be the only avenue i mean that's i mean it sounds like the same standard for declaratory judgment  seems like article three standing here i may be wrong are my colleagues disagree but should be not right i have to rise to level the declaratory judgment standard so those cases all help me as much as is there if there's an economic injury and you know economic injury and the term of what he your friend described what's described in paragraphs fifteen of his declaration why isn't that enough first that  engine but that's no different than what any company if you have a competitive industry you have company a you have company b as we sit here today companies are constantly evaluating another company's pat portfolio and certainly there are going to be instances where company a thinks company b has an overly broad patent and sighs geez i might have to design around this exactly why isn't  at this invalid patent out there we're going to go challenge it and when they get a adverse decision why can't they appeal and say look this is harming our potential business because this case is fine j and so you know j p have really looked at whether they were developing products that would in fresh that's not the theory here so but if we stick with j tank at least the competitive point which is how there are indeed is narrowed in that the costs are increasing what it is that just in your view not a legally sufficient basis to show article three said that they have to do more and the court standard i mean the third prong here they've taken concrete action that somehow implicates the claims and so they're sitting back and we focused on paragraph fifteen sixteen of their chief from an electoral properties in with an undisputed statement from the company and says our r and d costs are being increased because of this and valid patent that we can you know that we have to design around even though they specifically say our costs are increasing because of this and your view that sought sufficient for for legal standing standing alone just just based on a map hypothetical no it's not an offer a very needs to be more it had said if mr long had said we have had conversations with potential customers in which the issue has arisen whether we should have a to continuing that conversation that's partly dependent on worries about infringement i don't think that there is in fact nothing said in paragraph fifteen at that level of specificity but maybe the quite general assertion about economic harm is a generalization of that idea which if it were specific enough feels like it ought to be but in paragraph six of the declaration that's before the court we saw and you asked mr ferguson about there's a long development time here in least eight the time years and so we're at the point of conversations with their framers we haven't even at that point started that eight to ten years because you're just having conversations whether a particular engine is going to work on a certain platform that happens even before that eight to ten and their burden here was it least to demonstrate if there were economic harm to tie that to these claims of their shoe and put something concrete insubstantial before the court to say we've made a decision we're going to develop this particular engine indeed in j tact but that's and that can't be the standard there's language from supreme court cases that say you don't have to use start invest money and put yourself at risk for damage just to get article three standing i mean that that's just too far i just don't understand why if a customer came to them and said look we'd like  or something like that can you design it for us and they say we'd like to but we can't that that isn't and i know i'm not saying that that's what this declaration says that that's not a sufficient demonstration of economic loss they're turning away potential business because of a patent isn't that article three standing no your honor in fact we have many many patents g e has many many patents it's that conversation isn't going to be confined to starting patents and not to choose is going to affect the other one in certain ways your i just i just don't understand how when it's there's a clear where elation and it maybe they have not been the sufficient enough there's a clear correlation between help to a lot but besides that i mean that seems to me to be taken standing doctrine even further than the supreme court had us well i mean the looting case where it talks about it being the irreduc kind of thing said in paragraph fifteen here if we're more specific might well be anough but i'm really not sure whether this is a kind of theoretical generality by the lawyer without any actual basis in any actual business decisions of the r and b people i thought i wonder if it would be worth giving g e another opportunity to be more specific any thoughts about that  we have the record event they've chosen to submit this is a bit unique in the sense they control the facts they control what their plans are and so they've put the record before the court that it's in their view sufficient to demonstrate standing to give them another bite at the apple to say something different i mean they chose not to offer any declarations from engineers that are actually involved in jet engine development and to go back to them and say these are the words you need to say i don't think the port needs to give them opportunities to deny you correctly to say that last opportunity cost is sufficient to satisfy analysis correct yes so so if you do you see a situation where it is a a lost opportunity cost could be sufficient depending on the facts depending on the facts  in particular if somehow it's tied to concrete plans that are implicating our specific claims at issue if there was that time when they're in the business of developing aircraft engines and it would seem to me that this this plan is occupying the space there and they can't they can't design directly to the claims right they could have to design around them that takes lead time yes so the the question of of whether they would ultimately infringer not and whether they can design around is something that they can only be determined by the company  to be it seems to me to be just as immediate perhaps as yesterday we had a case of already the santa claus outfit there's no lead time there the decision to be the builder santa claus outfit or not it immediate but in this industry you've got significant lead time why isn't the decision to push the button to be engage in r and b why can't that represent a lost opportunity because it's it's standing economic harm then i don't understand what you've been talking about for the last fifteen minutes because we've been asking you hypotheticals about potential customers coming to them and saying can you develop saying we can't and you saying that that's not enough for standing even though that's i think the point of those hypotheticals with the suggest they're foregoing opportunities i e the last opportunity cost and you keep saying that that's not enough for stand in the category of lost opportunity cost that's not sufficient article three standing no ok can i ask you i know you're over time but i want to and i'm i'm probably overgeneralizing in these cases but there's there is cases involving competitor cases from the d c circuit i think and maybe other circuits i don't know where when an agency action increases competition the target of that agency action standing why isn't this the flip side the agency action here has decreased competition and why isn't the person who suffering from the inability to compete why shouldn't they have standing because growing when the government protects one competitor against another that's a government exercise of power that the unprotected inhibited competitor  are they i think all those competitors standing cases it was perfectly plain somebody was going to come in and they're going to be vastly more competitors in a market that you know prices were going to go down there were i don't remember any of them involving a serious question about the actuality of the normal competitive forces being at work harming somebody to me the central point is the central question is here do we really haven't enough to know that  g is anywhere near suffering an actual harm by this quite general statement in paragraph fifty what bet they haven't made a specific whether they're suffering an actual economic harm in paragra have been what you were planning to talk about why is it not right that the petition particularly what page two zero three eight of the joint appendix which is almost identical to the attached affidavit from the doctor and hari and the doctor barring a very seems to refer to a person of ordinary skill in the art being interested in these engines and looking and interested in looking at willis for purposes that are not limited to the willis purposes the short runway engine and i think it is fair to say more than fair to say that the board's decision turns entirely on restricting the field of motivation to skilled artisans interested in serving the willis purpose which if that's all there had been in our barry's declaration and the petition would seem to me a fair point but i'm not sure it is tell me why why the petition on the declaration have to be factory and which is really a military application he referred to size weight impost as as you know a possible motivation but then what he really talked about was the improved axial airflow in air flow york if if if you had an additional opportunity for mr long or somebody else at g e to get more specific about the possibility of customers having inquired about or had discussions about these geared to row fan structures would do you know can you can you say the answer maybe you can't say at this point would you have anything more to say i can't sit here today and say i know one way or the other  if the court gave us that opportunity we would we would try to address it and if we can't we obviously would not make something up with respect to that as your is this is a lost opportunity cost for g e paragraph sixteen mr long declares the existence of u t c s overly broad patents including a six zero five patent restricts g s design choices for new engines in a forces g to expand additional research and development that is economic loss that fits into the supreme court's decisions in monsanto and it fits into the court's decision in biotechnology in industries the other point i wanted to make on standing is one that relates to the supreme court's decision and oil states where they declared that patents are public rights  this decision came out after a briefing was complete this case but we think it is significant because standing in the context of an issue involving public rights requires that the appellant have a personal stake  matter as distinguished from a general member of the public and that's to ensure that the matter is presented in an adversarial context supreme court set down in the flossed versus cohen case three ninety two u s c three in g e clearly me we look at dr baris declaration he does not focus on what is a look at it where short haul sure for example at appendix twenty four sixty two is addressing the quick c engine against claim one in for example paragraph sixty four he discusses that willis discloses a turbofan engine which is a type of gas turbine engine in the it that is directly related to what the scope of the six zero five pattern is it's not limited to any type of engine that is only going to fly on short runways or or for short haul and then with respect to the motivation to combine you know he did provide that in the discussion at paragraphs at paragraph seventy seven and seventy eight which is appendix twenty four sixty nine to twenty four seventy where again he does not focus