happen you come up and just ask your your question there ok may please the court your honor i'm jonathan frank and my colleague pat right now i have allocated certain issues and the time of ten minutes and five  that the person the st person that gets up just goes crazy and then the person that sitting down there sees that they're cutting into their time and there are i see them over there and they're about to having a meltdown over am i going to get my time or not right at ten minutes when your ten minutes are up if my colleagues are asking you questions and you're answering questions to my colleagues you still have five minutes ok i won't credit it because that's but on the other hand if my colleagues are not asking you questions then at ten minutes you say understand ok understood and just to be clear for the court i'll be handling any jurisdictional questions the court has ok my colleague will be handling statue limitations and magnetite of the antitrust components of this i'll be handling the elements of walker process and chamois to get it right hopefully we can remember that so ok so you'll get your five minute three ok i'm going to be addressing three issues st one hopefully only briefly would be the jurisdictional issue the nd issue would be the intent to deceive requirement and finally the materiality on the jurisdictional issue if so we have the federal circuit and we have the th circuit right federal courts take jurisdiction pretty darn seriously you are right so even though no one talks about it down below we don't we don't automatically just jump over that and assume jurisdiction so my understanding is that there's a case that's on the supreme court calendar being considered whether they're it's maybe prudent to just wait for a decision as to whether it will be taken in october is fine although i don't think that this case presents a difficult issue these in tronics case which is the case that if there is a have that is a much different case and i'll tell you why because in in gun basically with the supreme court did was they said that there is no substantial patent issue if we're really talking federal court so any presidential value we would be pretty minimal here you are talking about a possible decision of the sister regional circuit court yes although subject to u s supreme court review on like what would be going on in state court but let me get into the issue because i see there is maybe more of an interest and then i anticipate reverse for hav substantial patent law issue in order for there to be federal jurisdiction now the question of whether the gun substantiality standard substantial patent law issue in order for the federal circuit to have exclusive jurisdiction even the th circuit into unpublished opinions question implied they did say well there may be a distinction because you know gun dealt with the federal state distinction but you know in the christensen case what the court said that in dealing with the rising under patent law question that really the they would have linguistic consistency and they would apply arising under patent law this ninety five the language was changed so that instead of refer instead of basically saying that the federal circuit has jurisdiction over cases you know pursuant to the arising under patent law language and so yes there's a you can distinguish the different contacts but the supreme court has not previously been inclined to do that and if and then no court has held that the gun test standards because they don't all apply but they all apply the substantial patent question standard because that is applicable in the context and the key determinant under  so narrow that when ever patent issues can come up they must go to the federal circuit you know if that's not the case and if this standard is relatively loose in terms of if if any issue can be decided by a reasoning other than under patent law even if it is ultimately decided under patent law a regional court regional appellate court still has jurisdiction so the the the constraints are not as tight as as is one might imagine and applying the gun standard would would not materially increase would not substantially increase the case law because you're dealing with a very specific type of case what the supreme court kept referring to as a you know a dead case it can have no real world impact outside of the parties it's purely hypothetical and that they're not concerned about that and in fact the concern i would think would be less  within the federal system as in the state system because if if there is a dispute between two different circuits on a substantial issue of patent law then the supreme court can resolve that issue and in fact that may be well i think i will go further into it but i don't think that is such a such a huge obstacle i don't think the state federal distinction is so much trademark office has this rule fifty six and rule fifty six requires the disclosure of material information with the patent application and by material  by experimental use and and so why wasn't it raised in front of the patent and trademark office and you know you have a situation in which at the time at the time they decided to look in the patent the possibility of patenting they had long ago over a year prior you know initiated this this pilot program and well i'm going to get to that tried to say i'm trying to save most of my time to deal with materiality the idea and my ok so let's let me jump to materiality so for purposes of materiality the question the really the question is what does it mean for a for an invention to work for its intended purpose think that's what what this really comes down to and the answer the meaning of what is the intended purpose and does it work for is is is it shown to be capable of producing the claimed results not all the results that a an inventor who may also be a business person would like but the claim to results and the degree of certainty in which it is tested for experimental purposes as opposed to commercial purposes is to eliminate the probability of failure not the possibility of failure  and the other sort of constraining legal concept it's quite important here is in smith v griggs the court said the burden is on the party claiming experimental use to not only show experimental use by by unequivocal and and convincing evidence but also to show the time period to delineate the time periods and in this case of course the the testing was not done for the purpose of getting it ready for a patent because that was not even on the drawing board at the time the expressed purpose of the test it was to demonstrate that the product would work for caps particular use which it's a big company and it requires a big volume and two did to establish that dealers will be willing to use it so forgive me for interrupting but you there's a sort of tweaking that kind of response that feedback and also that they were charging for it what case is this comparable is the most comparable to that kind of a scenario ok well st they remember that although they were not renting it out they were making the brief atlantas something where they talk about testing of workout tweaks and things like that that is not experimental testing that's commercial testing work i'm just looking for that in combination with not charging a unique set well we do cite a case in a footnote i'll find it when i come back up that we're dealing with a method that it's different than when you're dealing with selling a product here you're dealing with the method that we are that they are using and we're making money off of and so that's a different situation where van basically saying hey here's our product and use it for free we get nothing out of this but we want to see how how you handl this we are making money they have eight hundred over eight hundred deals and you know there's no way that the same amount of time could have been required to test the claim features as to test concerns because i think one of the fundamental distinctions on this appeal from what i'll call the very narrow patent law focused issue that your honor raised is you could decide this case on antitrust issues without ever really touching the patent law issues other than superficially the statute of limitations is an antitrust statute of limitations magnitude which is unequivocally controlling in this court is an anti it's the predicate for it it is not the claim the claim is sherman antitrust so tangentially you have to establish to get through the gate of walker process fraud that law is pretty much settled what we're talking about here is application of the evidence to settle the law on walk a process for up excuse me this court has done that and magnetometer is done that in keizer there seems no reason to walk away from that and the federal circuit itself has not walked away from that they endorse that what you have is the th circuit case saying at least with respect to the live dead comparables we find it implausible that the fed circuit should not be taking any sense to find out if the supreme court's going to grant cert i think i would say no because i think the issue is distinct there is the live versus dead distinction the fed circuit actually took the case back and decided that well no one else could give the law of the land i grant you that but in this case i think the president is there for this court to take it and there are ample reasons not to defer subjective point and i appreciate your feedback on that ok so i'm going to move on to the walker process fraud elements i think as i indicated before judge taro and the evidence here make it clear that you're just applying the facts to settled law and the settled law is it's not our burden to prove anything it's westlake spurn to prove each of those elements by clear and convincing evidence that's the case although it's the most analogous to the fact pattern here there are several but i think to get to the point that you were asking about about fees i do recall and i think it's t p the lab the dentist case where the dentist came up with a magnet a method of tying the braces together and it had to take place testing it over many years and the court found that yes he charged his normal fees for doing the services of providing the dentistry but he didn't charge additional fees and that's what happened here right they did the deals they were in their commissions or whatever they would selling the product correct but not the software correct and i think that's directly icing same none and i think the st they are correct and i think that that is not only unrebutted it's unequivocal and in fact credit acceptance went back when they did become aware that maybe they could patent this and they double check to make sure this patent was deemed invalid because it wasn't the full under alice it with a method was not p so there was and that's what judge joe terrell found when he found that the claim initially wasn't objectively baseless so look at the last changed and that happens in credit acceptance accepted that and withdrew the patent infringement case  but is it accurate that i have a written down from the records and we're point ninety two percent less than one percent of the active c c dealers participated in the pilot program that is accurate they have i think it was eleven or one thousand two hundred dealers there were eleven pilot dealers who participated it was restricted to them they were selected by credit acceptance in order to ensure that they would get feedback that they deemed appropriate three of them in fact were the controlling shareholder and chairman of the board's own dealership's and so they were very careful in who they allowed it to the evidence is unequivocal in the record that no one else received this is there any dispute about the tweaks or revisions to the software being made in response to this that that trial period i don't think there's any dispute the only evidence in the record is that as late as october th there's a list of taps issues list of roughly three hundred dollars many of which have yet to be addressed what capps issues list like like they'd like a punch list it is actually a document in the record i can find the page numbers for you but it is it was a list that was actually shown to their experts say did you even consider this and he said no i didn't even know it existed and it demonstrated that it was constantly being iterated and in fact some of the issues that were still extant and went directly to the claims method in addition to determining whether the sort of which you're october t that ok yes and they were still on the table to be completed and supporting that is the testimony of brock and the evidence of proxying in internal documents saying we're not going to be ready to the end of the worked out after the fact as i don't think is a bright line but it does strike me as unique in this case if there's there soliciting that feedback and making tweaks and not and not charging for the product and in fact that they're not rolling it  out there are no more than the eleven dealers even though that's point ninety two percent i should ok and i think another i think full stop block to their walk a process is subjective intent there is zero evidence of subjective intent to defraud here what about the quote in the newsletter about the roll out having occurred in december of two thousand that just a misspeak i think that i think there's only two reasonable inferences can be drawn and both are fatal to their claim brock said yes that's what we started to do in preparing for the role and that's what he testified that's how he read it and that's what happened and you know that's true because the documents that show that nothing was sold to any other dealer prior to january st show that only the eleven pilot dealers had the program so there was no rollout to other dealers prior to january there were no sales to other dealers so that's confirmed and i do think is apt comment on the record when reviewing their claim that the subsequent public disclosure that said the rollout occurred in january and the pilot program had begun in august it would belie sense if they were concealing something find it is the single most reasonable inference to get by summary judgment you can't on this record if you look at their whole listing of evidence two of them to what their components of their evidence are you should drop adverse inferences from the appropriate invocation of the attorney client privilege there's a privilege log they want you to infer from the fact that that was not disclosed and the circuit the federal circuit en banc has said you can't do this and they want you to draw an adverse inference to suggest that the that the patent attorney told them you're not going to get a patent if you disclose this how can you do that from an proper invocation of attorney client privilege you can't as a matter of law then they want you to  er that because they then checked and found that they had not sold anything until january th that because they raced to get the patent application is a matter of practicality and and being pragmatic and safe about this to get it done by the end of the year because that was their understanding of the of the on sale bar that somehow we can stand that on its head almost you know through the looking glass where black is white and white is black and decide that somehow they must have done that because they knew that this was material but for material and they were going to intentionally deceive i mean there's no way that they are entitled to reasonable inference since they're not entitled to an reasonable inferences i see i have nine seconds and so i'm unless you have further questions i will simply say there is also no basis for the sham litigation being objectively basis objective the baseless or defined subjective thank you  addressed which is almost surprising as the statute of limitations westlake has alleged two different theories of this case one is monopolization based on walker process fraud dating back to the application issuance of credit acceptances patent in two thousand and one in two thousand five respectively and the other is the sham litigation based on credit acceptance as patent infringement suit in two thousand and thirteen there is no dispute between the parties that unless there is some form of tolling wesley's walker process fraud claim relating to the patent issu e is time barred that claim accrued at the latest in two thousand and five and expired in two thousand and nine wesley was required to plead a form of tolling in its complaint and it failed to do so this court has noted in the washbowl products case that a plaintiff may not told the statute of limitations based on allegations which appear for the st time in response to a summary judgment motion this is exactly what happened here to plead fraudulent con westlake was required to plead factual going that credit exceptions affirmatively misled it that it was not on constructive or actual knowledge notice of its claims and that it diligently tried to it to uncover the facts of its limitations for an overt act causing a new injury at that time it's not the tolling doctrine that's something that is fundamentally there misunderstood or misrepresented in the briefing to this court what the continuing violation doctrine does is it says ok if you have a conspiracy or in any competitive act outside the limitations period and there is a new act within the limitations period and that causes a new injury the plaintiff can sue for that new injury if it's in the four years before the is filed it does not allow you to resuscitate a claim that expired a decade earlier contrary to what wesley says but i want to address a different point none of the acts that they referred to in their briefing on summary judgment and on this appeal none of them none of the advertisements none of the patent maintenance fees that supposedly are overt acts are in the complaint and none of them are alleged to have caused any new or accumulating indeed injury we don't dispute and we have a disputed that the claims based on the litigation in two thousand and thirteen are timely those were for they filed suit two years later but that doesn't let them buy a time machine and go back to the early two thousand and try and claim lost profits starting from one credit acceptance st obtained this patent and that's what's fundamentally wrong with the theory that they're bringing before this court judge otero correctly dismissed the majority of the walker process fraud claims because they can't do that and it damages flowing from the two thousand and thirteen suit you don't assert are off the table correct in those damages as the court held in magnitude or are the attorneys fees that they incurred what they can't do is take it what actually with troubling amount one billion dollars claim going all the way back to the early two thousand after they failed to bring suit and not only did they fail to plead these tolling doctrines they failed to prove them westlake in opposition to summary judgment put in a high one hundred and eight disputed facts none of those disputed facts speak to any of the elements of fraudulent concealment tolan except for the mere fact of walker process fraud they say credit exceptions fail to disclose information to the u s p t o as this no affirmative conduct alleged here there's nothing in the record and even putting that to the side there is no evidence of due diligence whatsoever and no evidence that westlake was not aware or on notice of its claims and in fact when it suit in and fifteen the complaint is replete of public information that form the basis of its claims and even in summary judgment it made it that it learned through publicly available evidence and without the benefit of fact discovery on that issue that cac had sold or offered to sell caps more than one year before it followed the eight hundred and seven patent application in other words when it finally decided to look into this assuming it did nothing for those that decade it was able to bring suit based on nothing more questions it footnote one of our reply we cited the scale tech case which says that a sale occurs for these purposes if a method is used for a commercial purpose i think that cases is is on point for that issue  in terms of the best cases to talk about the distinction between experimental and and commercial testing i noticed it the page five we cite a number of the better cases for  labonte smith and davis and so if there is two points if if then i can emphasize because some of the question you know the distinction between experimental and commercial testing is not that experimental testing when you're done with that it's ready to believe be released on the market not at all this is a this is a very narrow category because it deals with the amount of time you can basically keep private your invention before you file a patent application and that the courts emphasize that and and and in talking about burdens whether it's a burden of production or a burden of proof in smith and greg this supreme court emphasized that it is the holder the the patent holders responsibility to show that the time period to delineate the time period in which the experimental use negation applies and in this case they're basically just saying look we tested for it minutely for purposes dealing with our own business model and what they would have to deal with in dealing with their own system that's a huge company and they want to use this product for a lot of dealers and so they did tweaks but those are not tweaks of the of the claimed