Legal Case Summary

Barron v. SCVNGR, Inc.

Date Argued: Wed Mar 04 2015
Case Number: 1-13-3716
Docket Number: 2639333
Judges:Not available
Duration: 28 minutes
Court Name: Federal Circuit

Case Summary

**Case Summary: Barron v. SCVNGR, Inc.** **Docket Number:** 2639333 **Court:** [Specify Court, e.g., Massachusetts Supreme Judicial Court] **Term:** [Specify Term, e.g., October Term 2023] **Date Decided:** [Specify Date, if available] **Overview:** The case of Barron v. SCVNGR, Inc. involves a dispute between the plaintiff, [Plaintiff’s Name] Barron, and the defendant, SCVNGR, Inc. This case centers around issues of [Specify Key Issues, e.g., breach of contract, intellectual property rights, etc.], which stem from [Briefly Describe the Background Events Leading to the Case]. **Facts:** 1. **Parties Involved:** - Plaintiff: [Insert Plaintiff’s Full Name], a [describe the individual or entity, e.g., business owner or individual]. - Defendant: SCVNGR, Inc., a company operating in the [specify sector, e.g., technology or social media space] that specializes in [briefly describe the company’s activities]. 2. **Background:** - [Provide a concise background of the relationship between the parties, including any relevant contracts, transactions, or interactions that led to the dispute.] - Key events or actions that prompted the legal action [be specific about dates and actions taken by both parties]. 3. **Legal Claims:** - Plaintiff Barron filed a suit against SCVNGR, Inc. alleging [summarize the main claims – for example, breach of contract, unfair business practices, etc.], asserting that [include key allegations or points of contention, such as monetary damages or copyright infringement]. **Arguments:** - **Plaintiff’s Argument:** - Barron argues that SCVNGR, Inc. [detail the plaintiff's claims and the basis for their argument, including any legal statutes or precedents they cite]. - They seek [describe the desired outcomes, e.g., damages, specific performance, injunctions, etc.]. - **Defendant’s Argument:** - SCVNGR, Inc. contends that [summarize the defense's position and arguments against the claims made by Barron]. - They assert [mention any defenses or counterclaims raised, if applicable]. **Legal Issues:** The key legal issues presented before the court include: 1. [List and elaborate on the main legal questions or statutes that the court will need to interpret or apply]. 2. [Consider precedents or prior case law that may influence the court’s decision]. **Court’s Decision:** The court’s ruling will be based on [briefly outline the legal standards or considerations the court is likely to apply], with considerations of the evidence and arguments presented by both sides. The decision will address [specify what the judgment might entail, whether granting or dismissing claims]. **Implications:** The outcome of Barron v. SCVNGR, Inc. may have significant implications for: - The parties involved, - [Specify any broader industry consequences or legal principles at stake], - Future similar litigation surrounding [mention any relevant areas such as intellectual property, business contracts, etc.]. **Conclusion:** The case is pivotal not only for the parties involved but also for its potential impact on similar disputes in the [specify the industry or area]. The court's upcoming decision is awaited with interest by legal practitioners and industry stakeholders alike. --- [Note: This is a generic template. It is important to fill in specific information regarding the court, dates, and other details as per the actual case facts. References to legal statutes, precedents, and implications may require specific legal expertise or citation.]

Barron v. SCVNGR, Inc.


Oral Audio Transcript(Beta version)

no audio transcript available


nt that level up infringement's due to the variance complaint. And that happened at summary judgment. Now, this appeal is from the decision on attorney's fees. And on the decision of attorney's fees, after the court had already said, I don't quite understand what difference it makes that it was decided on summary judgment. I mean, there are all kinds of cases where there's an undisputed issue of fact, and the judge can look at it and determine as a matter of law once side wins or another. The fact that that's done relatively early on and on undisputed facts doesn't mean that the losing side's position is so frivolous that attorneys are warranted. Well, Your Honor, I don't think that the district court can make a determination summary judgment that no reasonable juror could ever find infringement on this, on an undisputed record. It's not like it makes it automatically, objectively unreasonable? It does in this case, Your Honor, and the reason it does in this case is too full, really, really wonderful, because nothing changed from the time that Mr

. Barron decided to file his complaint against level up to the time that the district court determined that no reasonable juror could ever find infringement on that claim. This is not a case in which some factoring might bring to you. Still got a close case, even though you won on summary judgment, right? No, it can't be. Your Honor, if there was a close case, then summary judgment couldn't have entered. Now, summary judgment is whether there's a genuine issue of material fact. Whether there's a genuine issue of material fact. You can agree on the facts, and it can disagree about how the law applies to those facts. Absolutely. And if there's a disagreement, a reasonable disagreement about how the law can apply to those facts, that's for the jury to determine those facts. It's not that summary judgment that takes place in every case. It's not for the jury to decide a legal question. I mean, if there's a agreement about the facts, and as a matter of law, the district court decides no infringement, then he or she can grant summary judgment. That doesn't mean it's per se unreasonable

. There may be some window for discretion in the district court to determine that a case that is so frivolous that no reasonable juror could ever find infringement. But it's not so unreasonable. That's not summary judgment. It's not that the case has to be frivolous. You can get summary judgment on cases which are not frivolous. It's just that there's no genuine dispute of material fact. That doesn't mean that even the factual part of it is frivolous. I guess they made that maybe true. But what I'm focusing on here is the determination at the time he filed as to whether a reasonable patent he would see merit in that claim. And with the district court said in its decision on the 285 motion here is, I find, I don't find that this is objectively baseless. At the time Mr. Baron filed, he could have thought there was merit in that claim. And then we move forward, nothing changes

. He files that complaint. We move for summary judgment. The facts are not disputed. There's no claim construction that he was operating under. It's not that he was saying this is how I'm interpreting the claim. I think that the phone can be part of the transaction terminal. And that that position gets rejected by the court. And then the court of the summary judgment. That's not at all what happened here. The construction was agreed upon. The facts were agreed upon. He was just hoping to hold on and see if he could survive in the early summary judgment. And let this litigation go

. If we want to get into the, if we want to get into dissect the reason for this position, it's completely unreasonable to say that the consumer's phone could be part of the transaction terminal. He's made this argument that while we thought the phone, a phone could be part of the transaction terminal, that's really a strong one. And the tip is added using the phone. So the first time you made it mean was that the phone itself could be part of the transaction terminal. Yeah, that's a strong one. Everybody agrees that. Why is that a strong one? Because it's a part of the transaction terminal when the tip part of the financial transaction is entered into the phone. So as a base, everyone agrees that a transaction terminal could be a tablet or a phone or any type of device. That was undisputed. The question is not whether it's any type of device. It's whether the consumer's device could be part of the merchant's transaction terminal. And the undisputed construction of transaction terminal, in this case, is a device that communicates over a secure financial network, such as the MasterCardor Visa clearance networks, and communicates transaction information for authorization. Even if you were to take this argument that the makeup of the transaction terminal is somehow transient over time, that the consumer A's device can be part of the transaction terminal when it does a transaction and consumer B's next in line can be part of the transaction terminal when it does a transaction

. The phone is far well off from that point of sale device that's connected to the secure financial network. This is the entire basis for this patent is we, this is an alternative to communicating over the public internet as a way to reach people that don't have cell phones or interconnected devices. And the way we do that is by communicating over the secure financial networks to these terminals, like ATM terminals or retail terminals that are wired in and far well to the secure network. Even if the phone is considered part of the transaction terminal because you're scanning a QR code, it's never part of any device that's communicating over that secure financial transaction network. That would inherently destroy the security of those terminals. And that's what the patent is seeking to avoid. Level-ups only sending messages over the public internet to that phone. And when the phone is receiving messages over the public internet, there's no connection between that user's phone and the point of sale terminal. There's no messages ever transmitted between the phone and the point of sale terminal. In fact, the phone could be an airplane. When you enter the tip onto the phone, it is transmitted and communicated so it's part of the transaction. There's two points in time. If you're setting the tip out, it does is rearrange the QR code

. There's no wireless communication. You then communicate the QR code with your token. Well, that is part for every transaction that's true. But for restaurant transactions, it does something more. It doesn't just provide the code. It also enables the customer to enter a tip into the phone, which gets transmitted to the merchants terminal and the tip is at it. Absolutely, Your Honor. It's no different than if I present my credit card to a waiter at a restaurant and he takes it and scans it, scans my credit card token into the terminal. He comes back and asks me how much I want to add for a tip. And I say 20%. I sign the receipt. I give it back to him and he manually enters 20% into the terminal. And then that goes up to the financial transaction network

. In no way would anyone ever suggest that that makes my credit card part of the merchant transaction terminal device. And the same is true here. Even if you were to say that that does, at that point in time of the transaction, makes the phone part of the transaction terminal device. That's step one of the claims. Step two of the claim is receiving the message at that same transaction terminal. And when the message is received, it's not received at the point of sale. It's received only by the user's phone. And that's over the public internet, which is completely entirely separate from the point of sale at that point. And there's never any communication. So the takeaway here is that even if that were true, the message received at the phone is not received at the same transaction terminal device as the transactions performed. And that's an express requirement that claimant has to be the same device. So if you want to say that the phone is part of the transaction terminal for step one, it's certainly not part of the transaction terminal for step two. And if you read the patent in the background, there's just no basis for a certain level of system here

. Has anything to do with Mr. Baron's method of delivering messages over a financial transaction network? That's why the court entered summary judgment without- The message is already delivered to the phone, right? Or only over the public internet, never over the financial transaction network, which is part of the construction, the undisputed construction of transaction terminal. In that sense, this case is very similar to what this Court just decided 10 days ago in Lumen View, which is Lumen View, a centred to a construction. They asserted in French and remember that construction. The Court found there's no chance they could have ever proved infringement under that construction. The facts are exactly the same here. What did the district court do in Lumen View? The district court awarded fees. The district court here did not work. Right. That's the distinction, right? I certainly understand the distinction around it. The difference here is that this is not a case where, like I said, a good faith-clank construction was rejected or where some facts came out that undercut the patenties infringement contentions. This is a case where nothing changed. The facts, the facts noted, Mr

. Baron, they asserted that complaint or the same facts that the district court earned some rejudgment on, which this Court reviewed Denovo. And it just... In the district court apparently thought those arguments on summary judgment, while not warranting a denial of summary judgment, were not sufficiently weak to award fees. That's true. And... Which we review for a piece of discretion. I mean, you should. It's been like five minutes explaining to us how this patent works, how their system works, why there's no infringement, and the like. The district court was in a better position than us to judge whether those arguments completely lack merit or not. And let me get into then the detail of the opinion and the factual errors that made that this Court does review, and that which this Court has reversed on, for example, in BiEx and in other cases. And in this case, the primary foundation for the district court finding no objective baselessness was its statement that the level-up map functions reasonably similar to the app described in the specification. That's wrong as a legal matter, as you know. We're not here. The Court's not here to compare the product to the specification. The Court wasn't relying on any claim-by-claim analysis by the patentee because the patentee didn't provide one. The court didn't provide one to get to its determination, by objective baselessness. All it did was compare to this fact. That's also factually wrong. As we just discussed, there's nothing in the specification that would suggest that there is any messaging to a mobile device. In fact, the patent says that that's the opposite. That's the problem it's trying to solve. The level-up is essentially the antithesis of the description

. And let me get into then the detail of the opinion and the factual errors that made that this Court does review, and that which this Court has reversed on, for example, in BiEx and in other cases. And in this case, the primary foundation for the district court finding no objective baselessness was its statement that the level-up map functions reasonably similar to the app described in the specification. That's wrong as a legal matter, as you know. We're not here. The Court's not here to compare the product to the specification. The Court wasn't relying on any claim-by-claim analysis by the patentee because the patentee didn't provide one. The court didn't provide one to get to its determination, by objective baselessness. All it did was compare to this fact. That's also factually wrong. As we just discussed, there's nothing in the specification that would suggest that there is any messaging to a mobile device. In fact, the patent says that that's the opposite. That's the problem it's trying to solve. The level-up is essentially the antithesis of the description. So that, those are wrong as a legal matter and as a factual matter. The Court's reliance on the pending appeal as evidence of the objective baselessness, I think, is clearly an incorrect factual issue which this Court should look at and remand, at the very least, for consideration truly of the objective baselessness, including a claim-by-claim-by-claim-by-claim-by-claim comparison of the alleged infringement. Now, before I get into my rebel time, I just want to suggest one last thing, which is the Supreme Court standard just taking me back to high-level. The Supreme Court standard is whether this case stands out from the others with respect to its merit. When we looked at the others, and I'm not aware of any case in which some rejected the none-in-frenchment, excuse me, entered immediately after the answer. And as the Court pointed out, that point that suggests the meritlessness of the patent these claims. In this case, it's already being cited by other patent holders and by other entities as a case that stands out against the others. Patent these are saying, well, if I make a pastis scheduling conference, or if I get to a claim construction hearing, I did better than the patentee in that case, and that case was found to be not exceptional. I think that if the Court affirms this case and affirms the reasoning and the flawed reasoning, the flawed factual conclusions on both an objective and subjective factions record, it's going to send a message to district courts that their discretion objective basis is unassailable. If I, if a claim that can't survive summary judgment immediately, the answer with no dispute of claim destruction or dispute of fact isn't objectively basis, then it's going to eviscerate the purpose of octane or any hope of having any uniform approach by the district courts across the country and applying discretion to 85 cases and in the last two minutes for the vote. Thank you. Thank you, Mr. Carroll

. So that, those are wrong as a legal matter and as a factual matter. The Court's reliance on the pending appeal as evidence of the objective baselessness, I think, is clearly an incorrect factual issue which this Court should look at and remand, at the very least, for consideration truly of the objective baselessness, including a claim-by-claim-by-claim-by-claim-by-claim comparison of the alleged infringement. Now, before I get into my rebel time, I just want to suggest one last thing, which is the Supreme Court standard just taking me back to high-level. The Supreme Court standard is whether this case stands out from the others with respect to its merit. When we looked at the others, and I'm not aware of any case in which some rejected the none-in-frenchment, excuse me, entered immediately after the answer. And as the Court pointed out, that point that suggests the meritlessness of the patent these claims. In this case, it's already being cited by other patent holders and by other entities as a case that stands out against the others. Patent these are saying, well, if I make a pastis scheduling conference, or if I get to a claim construction hearing, I did better than the patentee in that case, and that case was found to be not exceptional. I think that if the Court affirms this case and affirms the reasoning and the flawed reasoning, the flawed factual conclusions on both an objective and subjective factions record, it's going to send a message to district courts that their discretion objective basis is unassailable. If I, if a claim that can't survive summary judgment immediately, the answer with no dispute of claim destruction or dispute of fact isn't objectively basis, then it's going to eviscerate the purpose of octane or any hope of having any uniform approach by the district courts across the country and applying discretion to 85 cases and in the last two minutes for the vote. Thank you. Thank you, Mr. Carroll. Mr. Merrick. Thank you, Your Honor. I'm John Myrick. I appear today for Jack Merrick. What this case presents is the issue of whether the trial court abused its discretion in not awarding fees. It's a little ironic listening to my brother's argument because octane fitness, I suggest, stands for the proposition that the district court didn't have enough discretion and in octane fitness, the Supreme Court, I would suggest, gave the district court more authority to exercise discretion. Having exercised that discretion, my brother now wants to go back to an argument that if you lose at summary judgment, your case was one on which the district court must award fees. And that's simply, I suggest, not what the Supreme Court intended on octane fitness and on the facts of this case in any event, it's not justified. As Your Honor noted, the district court itself referred to the tip and the fact that a tip could be entered. And that distinguishes, at least in my mind, the level up application from a credit card. To hear my brother talk, the level up application is no different from a credit card. You hold it up

. Mr. Merrick. Thank you, Your Honor. I'm John Myrick. I appear today for Jack Merrick. What this case presents is the issue of whether the trial court abused its discretion in not awarding fees. It's a little ironic listening to my brother's argument because octane fitness, I suggest, stands for the proposition that the district court didn't have enough discretion and in octane fitness, the Supreme Court, I would suggest, gave the district court more authority to exercise discretion. Having exercised that discretion, my brother now wants to go back to an argument that if you lose at summary judgment, your case was one on which the district court must award fees. And that's simply, I suggest, not what the Supreme Court intended on octane fitness and on the facts of this case in any event, it's not justified. As Your Honor noted, the district court itself referred to the tip and the fact that a tip could be entered. And that distinguishes, at least in my mind, the level up application from a credit card. To hear my brother talk, the level up application is no different from a credit card. You hold it up. It puts a number in. And that's not quite how it works as the district court noted in saying that there could be a tip. The my client, and for that matter myself, were quite disappointed when the district court said that using a cell phone in this fashion is not a transaction terminal. We thought there was a good argument that it was a transaction terminal. And it wasn't just myself as a trial attorney and my client as the interest didn't matter, but there were two patent attorneys separately and independently who reviewed it and advised that this was a case that was worthy of bringing. And they referred to at various points in the record that's Mr. Rangelsen and Mr. Smith. Given that, we went forward with the case. Before filing the suit, we sent a very detailed claims analysis. We called it a preliminary claims analysis to my brother. Going through everything that was publicly available concerning how level up application worked and comparing that on a text by text basis with the statute, with bigger part, with the patent. And they showed all the areas in which it appeared to us that what level up was at least telling the public that its application would do ran into the various claims that were in the patent

. It puts a number in. And that's not quite how it works as the district court noted in saying that there could be a tip. The my client, and for that matter myself, were quite disappointed when the district court said that using a cell phone in this fashion is not a transaction terminal. We thought there was a good argument that it was a transaction terminal. And it wasn't just myself as a trial attorney and my client as the interest didn't matter, but there were two patent attorneys separately and independently who reviewed it and advised that this was a case that was worthy of bringing. And they referred to at various points in the record that's Mr. Rangelsen and Mr. Smith. Given that, we went forward with the case. Before filing the suit, we sent a very detailed claims analysis. We called it a preliminary claims analysis to my brother. Going through everything that was publicly available concerning how level up application worked and comparing that on a text by text basis with the statute, with bigger part, with the patent. And they showed all the areas in which it appeared to us that what level up was at least telling the public that its application would do ran into the various claims that were in the patent. As I say, the trial court disagreed that the cell phone was being used as a transaction terminal. And unfortunately this happens sometimes. I'd like to think that I win more cases than the other side does, but you do lose cases. Even the district judge in his summary judgment decision said the cell phone could in theory be a transaction terminal. But on the basis of what he saw before him in summary judgment, he decided that it was not a transaction terminal. Again, as I read the Octane Fitness case, there needs to be a finding of abuse of the litigation or that it just was a case that didn't have any merit. There was certainly no mitigation abuse. The district court judge complimented both parties on getting the case to him in an efficient fashion. Without running up the costs of their clients. And in terms of was there a good faith basis to bring the case. Again, both the claims letter that was sent initially and the opinions from not one but two patent counsel were a pretty good indication that Mr. Barron was not wasting the time of the district court by filing this case. As to our other arguments, I'll rest on what's in the brief unless the bench has some questions for you

. As I say, the trial court disagreed that the cell phone was being used as a transaction terminal. And unfortunately this happens sometimes. I'd like to think that I win more cases than the other side does, but you do lose cases. Even the district judge in his summary judgment decision said the cell phone could in theory be a transaction terminal. But on the basis of what he saw before him in summary judgment, he decided that it was not a transaction terminal. Again, as I read the Octane Fitness case, there needs to be a finding of abuse of the litigation or that it just was a case that didn't have any merit. There was certainly no mitigation abuse. The district court judge complimented both parties on getting the case to him in an efficient fashion. Without running up the costs of their clients. And in terms of was there a good faith basis to bring the case. Again, both the claims letter that was sent initially and the opinions from not one but two patent counsel were a pretty good indication that Mr. Barron was not wasting the time of the district court by filing this case. As to our other arguments, I'll rest on what's in the brief unless the bench has some questions for you. Okay, thanks, Mr. Meyer. Thank you. Mr. Carroll, you got a little less than two minutes. A couple of quick brief points. As to the tip, if this court were going to affirm the district court's ruling on fees and find that the tip presented a reasonable argument, that's the court to go back and look for the record evidence that was submitted by the patentee on the tip feature. There is none. They submitted no evidence at all as to how the tip feature function in the level of that. They didn't raise that argument at summary judgment. That was an after the fact argument raised to this court on appeal, raised for the fees motion. There is absolutely no record evidence on which the district court could have relied either at summary judgment or in its fees motion to find that that provided an objective basis. Second, as to the subject of factors, Mr

. Okay, thanks, Mr. Meyer. Thank you. Mr. Carroll, you got a little less than two minutes. A couple of quick brief points. As to the tip, if this court were going to affirm the district court's ruling on fees and find that the tip presented a reasonable argument, that's the court to go back and look for the record evidence that was submitted by the patentee on the tip feature. There is none. They submitted no evidence at all as to how the tip feature function in the level of that. They didn't raise that argument at summary judgment. That was an after the fact argument raised to this court on appeal, raised for the fees motion. There is absolutely no record evidence on which the district court could have relied either at summary judgment or in its fees motion to find that that provided an objective basis. Second, as to the subject of factors, Mr. Barry mentioned his diligent infringement investigation. We offered evidence that the, the, the, the affidavit that he submitted from his patent prosecution, Council, Mr. Engelsen was fabricated. It was actually false. He said that he had done six months of use of the level of service prior to filing the complaint. From our records, we showed that he hadn't used that service for over a year. And in response, they didn't submit a declaration from Mr. Engelsen. They identified another attorney at a different law firm who actually did that investigation. All of that evidence is ignored by the district court and its motion denying our fees. It should also point out the district court denied our motion for discovery on the subject of factors without any analysis whatsoever. So by ignoring some of the evidence and then relying on an absence of evidence on the subject of factors as well, level up should have been entitled to some opportunity to take discovery and submit that evidence to the district court if the district court was going to reach that evidence. And in terms of litigation abuse, I'd say that there was no litigation abuse in this case

. Barry mentioned his diligent infringement investigation. We offered evidence that the, the, the, the affidavit that he submitted from his patent prosecution, Council, Mr. Engelsen was fabricated. It was actually false. He said that he had done six months of use of the level of service prior to filing the complaint. From our records, we showed that he hadn't used that service for over a year. And in response, they didn't submit a declaration from Mr. Engelsen. They identified another attorney at a different law firm who actually did that investigation. All of that evidence is ignored by the district court and its motion denying our fees. It should also point out the district court denied our motion for discovery on the subject of factors without any analysis whatsoever. So by ignoring some of the evidence and then relying on an absence of evidence on the subject of factors as well, level up should have been entitled to some opportunity to take discovery and submit that evidence to the district court if the district court was going to reach that evidence. And in terms of litigation abuse, I'd say that there was no litigation abuse in this case. There couldn't have been the case didn't last long enough. It literally ended immediately after the pleadings. There was no opportunity for fixation or frivolous litigation. That's not part of our assertion here. It certainly doesn't have to be present under octane fitness in order for fees to be awarded. The last thing I want to mention just quickly is the idea that the court relied most significantly on the fact that Mr. Baram is not a patent assertion entity. And I suggest to your honours that that is not a relevant consideration in this case. This Court has said that where that evidence is presented, where a patent, a patent is executing a campaign of apparently extortionate lawsuits that can be considered to show bad faith in the case at bar. But there's certainly no requirement that the patentee be a patent assertion entity or exhibiting a campaign in order to be subject to fees under 285. Thank you. Mr. Karel, on the right hand side

. There couldn't have been the case didn't last long enough. It literally ended immediately after the pleadings. There was no opportunity for fixation or frivolous litigation. That's not part of our assertion here. It certainly doesn't have to be present under octane fitness in order for fees to be awarded. The last thing I want to mention just quickly is the idea that the court relied most significantly on the fact that Mr. Baram is not a patent assertion entity. And I suggest to your honours that that is not a relevant consideration in this case. This Court has said that where that evidence is presented, where a patent, a patent is executing a campaign of apparently extortionate lawsuits that can be considered to show bad faith in the case at bar. But there's certainly no requirement that the patentee be a patent assertion entity or exhibiting a campaign in order to be subject to fees under 285. Thank you. Mr. Karel, on the right hand side. Thank you. Thank you, Your Honours. Thank you both, Councillor Cases submitted. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you.

Okay, Mr. Carroll. May it please the Court, Brian Carroll, for scavenger ink doing business as level up. We reserve three minutes. Level up to appeal in this case is not the typical appeal that this Court is now seeing under octane fitness in which the Court is being asked to dissect a patent he's unsuccessful claim construction positions or it's unsuccessful in fringe when assertions and make a determination about the reasonableness of those positions. The exceptional thing in this case is that the patent he offered no positions for this Court to dissect. Level up file that's motion for summary judgment immediately with its answer. Based on publicly observable facts about the level up mobile payment system. But when we heard the appeal that it wasn't a frivolous case on the merits, there was a suggestion that the phone was a point of sale terminal based on the addition of the tip in restaurant transactions. So if it wasn't objectively unreasonable, why was the district court an error here in denying fees? Well, let me address the fill list. So what happened at the summary judgment phase in this case is that the patent he didn't dispute a single statement effect, didn't offer any evidence at all of infringement, didn't submit even a declaration in support of its infringement. It didn't dispute level up proposed claim construction. There was only one term in dispute. We proposed a construction of the term transaction terminal. It didn't dispute that at all for any additional construction. They didn't ask for any discovery. They didn't. It was clear from the record at that point that the cell phone was used to add a tip in restaurant transactions, right? Yes, this was a factual infringement assertion again with no dispute over claim construction and no dispute as to any of the facts. There was a question of infringement. It was a question of infringement that the court looked at, the trial court looked at, and on summary judgment determined that no reasonable juror could ever find infringement that level up infringement's due to the variance complaint. And that happened at summary judgment. Now, this appeal is from the decision on attorney's fees. And on the decision of attorney's fees, after the court had already said, I don't quite understand what difference it makes that it was decided on summary judgment. I mean, there are all kinds of cases where there's an undisputed issue of fact, and the judge can look at it and determine as a matter of law once side wins or another. The fact that that's done relatively early on and on undisputed facts doesn't mean that the losing side's position is so frivolous that attorneys are warranted. Well, Your Honor, I don't think that the district court can make a determination summary judgment that no reasonable juror could ever find infringement on this, on an undisputed record. It's not like it makes it automatically, objectively unreasonable? It does in this case, Your Honor, and the reason it does in this case is too full, really, really wonderful, because nothing changed from the time that Mr. Barron decided to file his complaint against level up to the time that the district court determined that no reasonable juror could ever find infringement on that claim. This is not a case in which some factoring might bring to you. Still got a close case, even though you won on summary judgment, right? No, it can't be. Your Honor, if there was a close case, then summary judgment couldn't have entered. Now, summary judgment is whether there's a genuine issue of material fact. Whether there's a genuine issue of material fact. You can agree on the facts, and it can disagree about how the law applies to those facts. Absolutely. And if there's a disagreement, a reasonable disagreement about how the law can apply to those facts, that's for the jury to determine those facts. It's not that summary judgment that takes place in every case. It's not for the jury to decide a legal question. I mean, if there's a agreement about the facts, and as a matter of law, the district court decides no infringement, then he or she can grant summary judgment. That doesn't mean it's per se unreasonable. There may be some window for discretion in the district court to determine that a case that is so frivolous that no reasonable juror could ever find infringement. But it's not so unreasonable. That's not summary judgment. It's not that the case has to be frivolous. You can get summary judgment on cases which are not frivolous. It's just that there's no genuine dispute of material fact. That doesn't mean that even the factual part of it is frivolous. I guess they made that maybe true. But what I'm focusing on here is the determination at the time he filed as to whether a reasonable patent he would see merit in that claim. And with the district court said in its decision on the 285 motion here is, I find, I don't find that this is objectively baseless. At the time Mr. Baron filed, he could have thought there was merit in that claim. And then we move forward, nothing changes. He files that complaint. We move for summary judgment. The facts are not disputed. There's no claim construction that he was operating under. It's not that he was saying this is how I'm interpreting the claim. I think that the phone can be part of the transaction terminal. And that that position gets rejected by the court. And then the court of the summary judgment. That's not at all what happened here. The construction was agreed upon. The facts were agreed upon. He was just hoping to hold on and see if he could survive in the early summary judgment. And let this litigation go. If we want to get into the, if we want to get into dissect the reason for this position, it's completely unreasonable to say that the consumer's phone could be part of the transaction terminal. He's made this argument that while we thought the phone, a phone could be part of the transaction terminal, that's really a strong one. And the tip is added using the phone. So the first time you made it mean was that the phone itself could be part of the transaction terminal. Yeah, that's a strong one. Everybody agrees that. Why is that a strong one? Because it's a part of the transaction terminal when the tip part of the financial transaction is entered into the phone. So as a base, everyone agrees that a transaction terminal could be a tablet or a phone or any type of device. That was undisputed. The question is not whether it's any type of device. It's whether the consumer's device could be part of the merchant's transaction terminal. And the undisputed construction of transaction terminal, in this case, is a device that communicates over a secure financial network, such as the MasterCardor Visa clearance networks, and communicates transaction information for authorization. Even if you were to take this argument that the makeup of the transaction terminal is somehow transient over time, that the consumer A's device can be part of the transaction terminal when it does a transaction and consumer B's next in line can be part of the transaction terminal when it does a transaction. The phone is far well off from that point of sale device that's connected to the secure financial network. This is the entire basis for this patent is we, this is an alternative to communicating over the public internet as a way to reach people that don't have cell phones or interconnected devices. And the way we do that is by communicating over the secure financial networks to these terminals, like ATM terminals or retail terminals that are wired in and far well to the secure network. Even if the phone is considered part of the transaction terminal because you're scanning a QR code, it's never part of any device that's communicating over that secure financial transaction network. That would inherently destroy the security of those terminals. And that's what the patent is seeking to avoid. Level-ups only sending messages over the public internet to that phone. And when the phone is receiving messages over the public internet, there's no connection between that user's phone and the point of sale terminal. There's no messages ever transmitted between the phone and the point of sale terminal. In fact, the phone could be an airplane. When you enter the tip onto the phone, it is transmitted and communicated so it's part of the transaction. There's two points in time. If you're setting the tip out, it does is rearrange the QR code. There's no wireless communication. You then communicate the QR code with your token. Well, that is part for every transaction that's true. But for restaurant transactions, it does something more. It doesn't just provide the code. It also enables the customer to enter a tip into the phone, which gets transmitted to the merchants terminal and the tip is at it. Absolutely, Your Honor. It's no different than if I present my credit card to a waiter at a restaurant and he takes it and scans it, scans my credit card token into the terminal. He comes back and asks me how much I want to add for a tip. And I say 20%. I sign the receipt. I give it back to him and he manually enters 20% into the terminal. And then that goes up to the financial transaction network. In no way would anyone ever suggest that that makes my credit card part of the merchant transaction terminal device. And the same is true here. Even if you were to say that that does, at that point in time of the transaction, makes the phone part of the transaction terminal device. That's step one of the claims. Step two of the claim is receiving the message at that same transaction terminal. And when the message is received, it's not received at the point of sale. It's received only by the user's phone. And that's over the public internet, which is completely entirely separate from the point of sale at that point. And there's never any communication. So the takeaway here is that even if that were true, the message received at the phone is not received at the same transaction terminal device as the transactions performed. And that's an express requirement that claimant has to be the same device. So if you want to say that the phone is part of the transaction terminal for step one, it's certainly not part of the transaction terminal for step two. And if you read the patent in the background, there's just no basis for a certain level of system here. Has anything to do with Mr. Baron's method of delivering messages over a financial transaction network? That's why the court entered summary judgment without- The message is already delivered to the phone, right? Or only over the public internet, never over the financial transaction network, which is part of the construction, the undisputed construction of transaction terminal. In that sense, this case is very similar to what this Court just decided 10 days ago in Lumen View, which is Lumen View, a centred to a construction. They asserted in French and remember that construction. The Court found there's no chance they could have ever proved infringement under that construction. The facts are exactly the same here. What did the district court do in Lumen View? The district court awarded fees. The district court here did not work. Right. That's the distinction, right? I certainly understand the distinction around it. The difference here is that this is not a case where, like I said, a good faith-clank construction was rejected or where some facts came out that undercut the patenties infringement contentions. This is a case where nothing changed. The facts, the facts noted, Mr. Baron, they asserted that complaint or the same facts that the district court earned some rejudgment on, which this Court reviewed Denovo. And it just... In the district court apparently thought those arguments on summary judgment, while not warranting a denial of summary judgment, were not sufficiently weak to award fees. That's true. And... Which we review for a piece of discretion. I mean, you should. It's been like five minutes explaining to us how this patent works, how their system works, why there's no infringement, and the like. The district court was in a better position than us to judge whether those arguments completely lack merit or not. And let me get into then the detail of the opinion and the factual errors that made that this Court does review, and that which this Court has reversed on, for example, in BiEx and in other cases. And in this case, the primary foundation for the district court finding no objective baselessness was its statement that the level-up map functions reasonably similar to the app described in the specification. That's wrong as a legal matter, as you know. We're not here. The Court's not here to compare the product to the specification. The Court wasn't relying on any claim-by-claim analysis by the patentee because the patentee didn't provide one. The court didn't provide one to get to its determination, by objective baselessness. All it did was compare to this fact. That's also factually wrong. As we just discussed, there's nothing in the specification that would suggest that there is any messaging to a mobile device. In fact, the patent says that that's the opposite. That's the problem it's trying to solve. The level-up is essentially the antithesis of the description. So that, those are wrong as a legal matter and as a factual matter. The Court's reliance on the pending appeal as evidence of the objective baselessness, I think, is clearly an incorrect factual issue which this Court should look at and remand, at the very least, for consideration truly of the objective baselessness, including a claim-by-claim-by-claim-by-claim-by-claim comparison of the alleged infringement. Now, before I get into my rebel time, I just want to suggest one last thing, which is the Supreme Court standard just taking me back to high-level. The Supreme Court standard is whether this case stands out from the others with respect to its merit. When we looked at the others, and I'm not aware of any case in which some rejected the none-in-frenchment, excuse me, entered immediately after the answer. And as the Court pointed out, that point that suggests the meritlessness of the patent these claims. In this case, it's already being cited by other patent holders and by other entities as a case that stands out against the others. Patent these are saying, well, if I make a pastis scheduling conference, or if I get to a claim construction hearing, I did better than the patentee in that case, and that case was found to be not exceptional. I think that if the Court affirms this case and affirms the reasoning and the flawed reasoning, the flawed factual conclusions on both an objective and subjective factions record, it's going to send a message to district courts that their discretion objective basis is unassailable. If I, if a claim that can't survive summary judgment immediately, the answer with no dispute of claim destruction or dispute of fact isn't objectively basis, then it's going to eviscerate the purpose of octane or any hope of having any uniform approach by the district courts across the country and applying discretion to 85 cases and in the last two minutes for the vote. Thank you. Thank you, Mr. Carroll. Mr. Merrick. Thank you, Your Honor. I'm John Myrick. I appear today for Jack Merrick. What this case presents is the issue of whether the trial court abused its discretion in not awarding fees. It's a little ironic listening to my brother's argument because octane fitness, I suggest, stands for the proposition that the district court didn't have enough discretion and in octane fitness, the Supreme Court, I would suggest, gave the district court more authority to exercise discretion. Having exercised that discretion, my brother now wants to go back to an argument that if you lose at summary judgment, your case was one on which the district court must award fees. And that's simply, I suggest, not what the Supreme Court intended on octane fitness and on the facts of this case in any event, it's not justified. As Your Honor noted, the district court itself referred to the tip and the fact that a tip could be entered. And that distinguishes, at least in my mind, the level up application from a credit card. To hear my brother talk, the level up application is no different from a credit card. You hold it up. It puts a number in. And that's not quite how it works as the district court noted in saying that there could be a tip. The my client, and for that matter myself, were quite disappointed when the district court said that using a cell phone in this fashion is not a transaction terminal. We thought there was a good argument that it was a transaction terminal. And it wasn't just myself as a trial attorney and my client as the interest didn't matter, but there were two patent attorneys separately and independently who reviewed it and advised that this was a case that was worthy of bringing. And they referred to at various points in the record that's Mr. Rangelsen and Mr. Smith. Given that, we went forward with the case. Before filing the suit, we sent a very detailed claims analysis. We called it a preliminary claims analysis to my brother. Going through everything that was publicly available concerning how level up application worked and comparing that on a text by text basis with the statute, with bigger part, with the patent. And they showed all the areas in which it appeared to us that what level up was at least telling the public that its application would do ran into the various claims that were in the patent. As I say, the trial court disagreed that the cell phone was being used as a transaction terminal. And unfortunately this happens sometimes. I'd like to think that I win more cases than the other side does, but you do lose cases. Even the district judge in his summary judgment decision said the cell phone could in theory be a transaction terminal. But on the basis of what he saw before him in summary judgment, he decided that it was not a transaction terminal. Again, as I read the Octane Fitness case, there needs to be a finding of abuse of the litigation or that it just was a case that didn't have any merit. There was certainly no mitigation abuse. The district court judge complimented both parties on getting the case to him in an efficient fashion. Without running up the costs of their clients. And in terms of was there a good faith basis to bring the case. Again, both the claims letter that was sent initially and the opinions from not one but two patent counsel were a pretty good indication that Mr. Barron was not wasting the time of the district court by filing this case. As to our other arguments, I'll rest on what's in the brief unless the bench has some questions for you. Okay, thanks, Mr. Meyer. Thank you. Mr. Carroll, you got a little less than two minutes. A couple of quick brief points. As to the tip, if this court were going to affirm the district court's ruling on fees and find that the tip presented a reasonable argument, that's the court to go back and look for the record evidence that was submitted by the patentee on the tip feature. There is none. They submitted no evidence at all as to how the tip feature function in the level of that. They didn't raise that argument at summary judgment. That was an after the fact argument raised to this court on appeal, raised for the fees motion. There is absolutely no record evidence on which the district court could have relied either at summary judgment or in its fees motion to find that that provided an objective basis. Second, as to the subject of factors, Mr. Barry mentioned his diligent infringement investigation. We offered evidence that the, the, the, the affidavit that he submitted from his patent prosecution, Council, Mr. Engelsen was fabricated. It was actually false. He said that he had done six months of use of the level of service prior to filing the complaint. From our records, we showed that he hadn't used that service for over a year. And in response, they didn't submit a declaration from Mr. Engelsen. They identified another attorney at a different law firm who actually did that investigation. All of that evidence is ignored by the district court and its motion denying our fees. It should also point out the district court denied our motion for discovery on the subject of factors without any analysis whatsoever. So by ignoring some of the evidence and then relying on an absence of evidence on the subject of factors as well, level up should have been entitled to some opportunity to take discovery and submit that evidence to the district court if the district court was going to reach that evidence. And in terms of litigation abuse, I'd say that there was no litigation abuse in this case. There couldn't have been the case didn't last long enough. It literally ended immediately after the pleadings. There was no opportunity for fixation or frivolous litigation. That's not part of our assertion here. It certainly doesn't have to be present under octane fitness in order for fees to be awarded. The last thing I want to mention just quickly is the idea that the court relied most significantly on the fact that Mr. Baram is not a patent assertion entity. And I suggest to your honours that that is not a relevant consideration in this case. This Court has said that where that evidence is presented, where a patent, a patent is executing a campaign of apparently extortionate lawsuits that can be considered to show bad faith in the case at bar. But there's certainly no requirement that the patentee be a patent assertion entity or exhibiting a campaign in order to be subject to fees under 285. Thank you. Mr. Karel, on the right hand side. Thank you. Thank you, Your Honours. Thank you both, Councillor Cases submitted. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you