The United States Court appeals for the federal circuit is now open and in session. God save the United States as honor for it. Thank you, maybe you seen it? This morning, this panel has three cases before it. Two will be argued and one is submitted on the record. Prophoses of our records. This submitted case is Newsom v. Treasury 2009-3019. The first case to be early argued is 2008-1599 Excel innovations versus U technology. Mr. Charles, you reserve five minutes. Yes, sir. We're rebuttal and whenever you're ready. Good morning, honor. Gregory Charles of Campo, Goodself Smith with me in court today is Mr. Bornstein of Bornstein and Bornstein. As I've said, I'd like to reserve five minutes for a bottle. First, I'd like to address the standing and the mootness issues. I think it's a jurisdictional consideration that the court really has to satisfy itself with before it goes any further than the case. I think that the appellees principally rely on Rule 25 to say that this action can continue unabated because there have been a transfer of interest. I'll be glad to address the final judgment issue. And doubtably, it's a unique circumstance that we faced. Our principal concern with the final judgment issue related to the fact that if a notice of appeal is not timely filed, that's a jurisdictional consideration. So based on what Rule 58 said, we had to notice the appeal when we did because had 180 days gone by after the April 11th order issued. And we'd notice the appeal later on. The appeal could have been dismissed for not being timely. Well, that's not the issue. I think the judge posed to me when I raised. She was asking about the finality of the judgment. Is it a final judgment? Do we have jurisdiction over this case? In fact, I believe that you have jurisdiction over the case
. As a matter of fact, the court does have jurisdiction over this case. Well, the terminating sanctions motion is still extant, correct? The terming sanctions motion was moot when it was filed, Your Honor. Why is it moot? A motion for terminating sanctions is a motion to dismiss a claim or a group of claims. There's no doubt about that. When the court granted summary judgment with respect to the ownership issue, that resolved excels claim for declaratory judgment with respect to ownership. It also resolved all of the excels infringement claims because you cannot sufer infringement unless you own the patents. Although the district court, I think the district court, sort of acknowledged that effectively excels infringement claims have been resolved. Am I not correct that the district court has not entered an order or otherwise actually addressed excels infringement claims? I would say that you're correct that there's no order in the record, say excels claims are now dismissed. But infringement is a statutory claim and the first element of a statutory claim of infringement is that you own the patents. And the court found in April 2004 that Excel does not own the patents that issue. And when the court issued that order on April 11, 2008, it said all claims counterclaims and counterclaims have been resolved in this case either by adjudication or dismissal. So to answer your question, I think that order speaks to that issue because the court said all claims have been resolved. But that order was issued after the indibose and solidus bankruptcy. Correct? It was issued after indibose and solidus bankruptcy. That is correct. And so to the extent that that order can't be interpreted as addressing the merits of Excel's claim because that claim was subject to the automatic stay under the bankruptcy act. I don't think that's correct, Your Honor, because 11 U.S. C362 does impose a stay upon the file of the bankruptcy and the bankruptcy was filed that December before that order. But four years before the bankruptcy was filed, the court issued the summary judgment order finding that indibose and solidus owned the patents. There's no stay at that point because the court is already adjudicated that issue. I mean, I agree with you and you won't get any disagreement. I think for many of us on the panel that without ownership, a patent, he has a standing problem. But the question is whether there has been an adjudication of this issue or whether that issue is just sort of hung up for one reason or another in connection with this bankruptcy such as the matter before it's not final. Your Honor, it's not hung up in the bankruptcy in this context because Excel's ownership claims were not subject to the automatic stay. And the reason why that happens is the automatic stay is effectively a one-way street. If able company sues Baker Company and Baker Company like Excel claims that it owns patents and able company claims it owns patents, then able company files for bankruptcy, able company, although a debtor or a debtor in possession, can still defend any claim that's brought against it. The automatic stay would preclude Baker Company from pursuing claim against Aruh
. Wait, so are you talking about the bankruptcy saying that the district court was wrong that she couldn't rule on the motion to terminate the sanctions motion? The decision to the state. Even if you're right, why does that help us in terms of having a final judgment? All that means is she was wrong and she should have dismissed those who are dismissed without prejudice, ruled on it or done whatever she was going to do. But in most cases where we, in the patent cases where we have funnality issues, it's because there's some pending counterpoint that the district court just didn't notice and therefore it needs to be dismissed without prejudice for us to be able to proceed. Why is this any different? No, and I agree with that that sometimes it appeals that you sort of have a claim laying out there, but that's why the April 11th order is so important for us because it's an affirmative statement by the district court and it cannot be more clear that says that all claims have been resolved in this case and she said either by adjudication or dismissal. And then after that the magistrate proceeded to resolve the other issue. And that was patently improper and the reason why it was improper because the motion for terminated sanctions at that point was nothing but a request for an advisory opinion. But was it really advisory at that point or was it a question of still remaining pending for sanctions? Now is a sanctions motion that was filed? That was more of a discovery under rule 37. Was it not rule 11? No, it was a rule 37 based motion, that is correct. But to the extent that it related to discovery, there's no discovery in a district court once all claims have been adjudicated. And then if a discovery sanction is, the range of sanctions could be a monetary sanction which was actually precluded in this case because it sells bankrupt. It could be an evidentiary sanction which either by excluding evidence or by giving an instruction to the jury or the most draconian sanction of all, it could be a sanction of dismissal. And that's the sanction that was sought in this case. But you agree if it were a monetary sanction it would still be a lot that this would not be a final judgment that were monetary sanction. You're all predicated on the fact that it was intertwined with the movements of the other case. I mean if it's a monetary sanction isn't it just well? I think it's a collateral. It would be like the attorney's fees then if it were monetary sanction. I think it's a collateral issue at that point. But by the court, by the court, inter and the order saying that all claims have been resolved. The motion is directed to a claim and when a claim no longer exists, the motion was moved. It was moved when it was filed. The reason why the reason quite frankly that the motion was filed in counsel basically stated as much in the record is that they were concerned about the summary judgment motion. I mean basically said we're concerned that if this case goes up on appeal that if it's reversed, it's going to come back on a tainted record. And we don't want to bear the risk of having to try this case if it's... But I don't understand your point. You're saying we should, there's a final judgment because all of the claims have been resolved. So you're saying we should treat this as if the district court had dismissed it even though she didn't dismiss it? I think as a
... when you say dismiss, you're talking about the motion or... The motion. Right. The district court took no action on the motion for a year. It just sat on the docket before any bankruptcy. Well what the answer to my question? The answer to your question, Your Honor, is very clear. And Rule 58 says that once all claims have been resolved, judgment enters by operation of rule 150 days later. Now in my view, in every case that I've ever had in the district court, you know the court as a matter of course issues judgment. And the court didn't issue judgment in this case, but this is exactly the situation that Rule 58 contemplates that if you have an order disposing of all claims, 150 days after that order is issued in the interim of the docket, judgment issues as a matter of rule. And that's exactly what happened in this case. So to the extent that the court's concerned that there's no final judgment, no if you're looking in the record, obviously there's not a judgment issued by the clerk. But there didn't need to be a judgment issued by the clerk because Rule 58 says judgment issued as a matter of course. Basically it's on the order of April 11th? Yes. Let me ask you a question hypothetically if we affirm the court below on this case. Does that make the motion for sanctions still applicable? As it's according to your theory, it's moved. To answer your question, and I got back to my previous comment that the appellees were concerned that if the case were reversed they would have to come back and bring this motion. If this case is affirmed, that motion is moved because the case stands in the same fashion that it stood in the district court. In the most in Excel and now you technology own those patents. If the court affirms it, that motion is moved. Now if it was moved when it was filed, now if this court were to confirm it. Let's step back a minute. If in fact we affirm, is that motion for sanctions and if it was a monetary sanction request? That would not be moved with it. I'll try to answer your question directly because there's a technical aspect of it. There could not be a motion for monetary sanctions and the reason why is because Excel is a debt or a debt or a debt or a possession
. An emotion for monetary sanctions would violate the automatic stay in Excel's bankruptcy. And to the extent that the individuals in the census got relief from stay, that was a condition. But the bankruptcy court did allow those to proceed. There are two different bankruptes in your honor. Individuals in the census are bankrupt. And Excel. But individuals in the census could not seek monetary sanctions. It could not excel. But so to answer your question, it's not an issue. But the motion was moved when it was filed. And that's my position. Because of the bankruptcy. No, it was moved when it was filed. It was because the court had granted summary judgment finding investments in the census and solving the patents. I'm actually in mind. That's fine. You've been asked a lot of questions. We'll add some time to it. Judge Williams has one of those questions. You're arguing that the April 11 order in effect is missed. All the claims counterclaims and resolved. It recognized that all the claims and counterclaims have been resolved. Well, then what is the meaning of the stipulation of, I guess it was entered August 15, 2008? In the central district? Yes. Your honor. We entered in that stipulation and I do a fair amount of bankruptcy work. We call that a prophyllactic relief from the automatic stay. And what we do is that we go into the bankruptcy court and we'll say, well, you know, we don't think the stay applies. But just so that there is absolute certainty
. So we've breached this issue. It gets poured to the federal circuit. And the federal circuit says, there's a bankruptcy. It isn't this case state. So we obtain that type of relief. Just so the record is very, very clear that the case can go forward. And, you know, the stipulation was that the, since Excel is here by granted relief from the automatic stay to prosecute the patent case to final judgment. That's correct. Certainly by inference, if not explicitly, recognizes that a final judgment has yet to be entered. Your honor. That was that that population. And well, I'll answer in two ways. Since I wrote that stipulation, what I was thinking is that the judgment is not final until it's been subject to a peller review or a person waived its right to appeal. But the second issue is that stipulation was entered before the 150 day period lapsed. So the judgment has not been entered at that point. Can I ask some questions? We can move to the merits. I know your time is short. I've got a minute and a half, but I'll be glad you're asking. I'll be glad you're asking. Well, I have some time in the clock. I mean, there's still time. The judge can really stop the clock and stop the world. I'm glad to answer all your questions. I'm glad you're interested. There's several issues here. Let me turn to the one that deals with whether or not it was a present assignment, whether it was effectuated immediately or whether it was some time in the future. Firstly, so your view is it wasn't immediate. So when, if ever, was it to go into effect or when, if ever, did it go into effect? I mean, you're saying it wasn't a present assignment
. So what is the future? Well, first of all, it's our contention that the... It wasn't an assignment at all. I mean, that was an alternative argument because of the license agreement. Okay, well, assume it's a license. When did it go into effect? What I'm talking about, what I'm mentioning, your honor, is that I'll back up. What the agreement says is that Excel is assigning certain patent rights. But it doesn't say what those rights are. And it may be an obligation to assign certain patent rights, but those rights were never actually assigned. When does it go into effect? It would go into effect when the parties effectuated that agreement with some other type of acknowledgement or agreement between the parties. So it's a present assignment. It's not a future assignment. It could be an obligation to... I've characterized as an obligation to do something in the future. When in the future? It doesn't stay. I mean, that's not a term of the agreement. I mean, what kind of agreement is this then? If it's sort of some... Sometime in the future to be determined at some later date, we agree to do this. That's your view of how we should... I think it's probably analogous to a letter of intent. So where is the district court then in error when she decided to summary judgment? Well, the main error that the district court had is that the district court laid out a very long history of the case, all the agreements of the parties
. But in the key to the summary judgment error was that the court said the agreement between the parties, the entregring, is arguably ambiguous. I mean, that's a finding that the district court made. And then we know the district court continued to be ambiguous because at that point, the court considered all this parole evidence extraneous to the agreement. Now the error is... But isn't it clear from the record that... I mean, was she following the ambiguity with respect to the scope, right, of whether or not it was just fingerprints or whether it included the other stuff? Wasn't that the aspect of the agreement that she found ambiguous, which led her to a sprinzig evidence on that point and not on all others? The rule in California, and we cite the Nefahe decision, is that once the court finds an agreement to be ambiguous, some re-judgment is not available as a matter of law in California. Is California law applicable to the agreement or is it federal circuit law, which is applicable? You know, you're actually... Actually, I looked at that issue before we came to court because that wasn't absolutely clear in the briefs. And I wanted to square the corner on that. We've cited Nefahe and the... Apelees had cited the Southern Pacific case. Our decision is a decision of the California Court of Appeals and it's well-settled law. To answer your question directly, I located a case the other day called Designed by Scaffles Inc. and it's a 2002 decision of this court and it's reported 35 federal opinions, 867. And that case involved a licensed agreement. And I'll quote two passages from the agreement. And it says the licensed agreement specifically provides that it should be construed in accordance with Pennsylvania law. And then this court went on to say, in interpreting agreements, we thus apply Pennsylvania law. We follow the law of contracts as interpreted by the highest court of the state. And that actually
... That case actually involved extrinsic evidence. I'll note that the operating agreement in this case specifically contains a choice of law provision and it says that California law shall be controlling. So I think that this court would apply California law. Well, there's a conflict among our cases in that area. I'm sure you recognize that. I recognize that. So it's not as clear as mud. And I was trying to give the court some time. I recognize that fact. But to answer your question, I believe the California law controls because the parties... Which is one of the cases that you cite as the one that's absolutely clear on the UK and France on the rest of the country? We cited them a vacation honor. And we also... What's the citation in that? The citation is for the law. Okay, it's the 1993-1930 case. Yes, it's a... It's a 12th at 3892. And we also had cited... But isn't
... I mean, they come back with one miller. That's correct. But we also cite California casual and dimly exchanged versus freaks. Yeah, but aren't they right that Glenn Miller does seem to suggest something contrary to how you're reading today? I think I think if you... And I'll address this very specifically in the reply brief. But the case law on which Southern California cast relies is in part based on Canadian law. And I looked for a nice circuit case along the lines of... Here's... If it's a... If it's a supplemental claim, we apply the state law. If it's just a claim on a common law, we apply a nice circuit law. I could actually find that case. But when I... Yeah, but..
. But Glenn Miller was applying California law notwithstanding the reference to the Canadian. But there were also... There were federal claims in that case. And the cases we cited relate to supplemental jurisdiction. So I don't... I don't think that it could be read as superseding the case. And in fact, you know, the most I could say about the... The appellate case is it says that we ordinarily don't consider extrinsic evidence. So the general rule in California... And the federal nice circuit is that you don't consider extrinsic evidence. But I think the California case law is absolutely clear. And I think that California laws will control overnight circuit authority in this case. Thank you, Mr. Charles. We'll bring story three minutes for the oral time. Mr. Davis, we'll add five minutes to your time. So if you need it. Thank you, Your Honor. May I please the Court, Mark Davies, with me at Constable, is David Ommling. And we represent new technology. This matter. It may make sense when we just do again where we... On the... In the case we were just discussing, which in the portion of the opinion... Our Court, Opposing Council actually quotes, says, under California law, partying may present extrinsic evidence to show... A facially unambiguous contract is susceptible of another interpretation. So, California law is completely clear that you can look to extrinsic evidence even if the contract just on its face is unambiguous. Before you get into the mic, I'll back to a question. Asked this is on the preliminary issue that we're talking about finality. Do you agree with your colleague if we affirm on the summary judgment question that's before us... All the issue of the motion for sanctions is moved. The... You know, there may be a receipt..
. And we represent new technology. This matter. It may make sense when we just do again where we... On the... In the case we were just discussing, which in the portion of the opinion... Our Court, Opposing Council actually quotes, says, under California law, partying may present extrinsic evidence to show... A facially unambiguous contract is susceptible of another interpretation. So, California law is completely clear that you can look to extrinsic evidence even if the contract just on its face is unambiguous. Before you get into the mic, I'll back to a question. Asked this is on the preliminary issue that we're talking about finality. Do you agree with your colleague if we affirm on the summary judgment question that's before us... All the issue of the motion for sanctions is moved. The... You know, there may be a receipt... Big picture, the other side is engaged, or at least the magistrate has found, in the type of discovery, misconduct, and the faking of documents, and concealing of documents, and producing fake computers that the litigation system cannot tolerate. And it must be sanctioned in some way. Now, the motion for terminating sanctions, the relief is obviously wanted to dismiss it on the merits, but we also sought fees, and we will go back and ask for fees. You know, procedurally, it's not clear to me exactly how that works, but the conduct is still very... It's not moved. The challenge conduct... The challenge to that conduct is not moved. So... Is that... But then the recess fees and costs against the bankruptcy estate. Well, if there's a problem with that, then we can try and get relief from the bankruptcy court, but that's sort of a procedural hurdle. The ultimate problem here is that the other side is engaged in misconduct, and there are of course procedures why which the district court can't punish that conduct. But aside from this conduct, hypothetically, if we affirm the case... Yes, sir. ...and the matter is resolved by an affirmation
. Big picture, the other side is engaged, or at least the magistrate has found, in the type of discovery, misconduct, and the faking of documents, and concealing of documents, and producing fake computers that the litigation system cannot tolerate. And it must be sanctioned in some way. Now, the motion for terminating sanctions, the relief is obviously wanted to dismiss it on the merits, but we also sought fees, and we will go back and ask for fees. You know, procedurally, it's not clear to me exactly how that works, but the conduct is still very... It's not moved. The challenge conduct... The challenge to that conduct is not moved. So... Is that... But then the recess fees and costs against the bankruptcy estate. Well, if there's a problem with that, then we can try and get relief from the bankruptcy court, but that's sort of a procedural hurdle. The ultimate problem here is that the other side is engaged in misconduct, and there are of course procedures why which the district court can't punish that conduct. But aside from this conduct, hypothetically, if we affirm the case... Yes, sir. ...and the matter is resolved by an affirmation. Yes. Is the motion still extended at that point of time, just like a rule of 11 motion it could be made, which remains outstanding even though the judgment is fine? I think what we probably do is renew the motion and maybe recapture it. I'm not sure what... Is there a consequence to whether or not we say the same conduct and then go after fees, only as opposed to right now we're seeking fees and determination on the merits. We couldn't get the relief of termination on the merits because after this court rules, and if the bank proceedings are over and the Supreme Court proceedings are over, at some point it will be over, and you're right, any motion to terminate on the merits would be in fact be over. But the motion would be moved at that point. And it's styled in a caption, but the fundamental complaint would not be an all-be-mute, because we could ask an exceptional conduct, an exceptional case, there's also a sort of procedure by which the litigation system doesn't tolerate this type of conduct. And the fact that we end up winning on the merits despite all the concealment, despite all the shenanigans, doesn't move in that sort of coarse sense. But if you say, okay, so the motion is pending, all they ask for is a termination on the merits. They won on the merits, it's all over. In that sense it's moved. So you are agreeing that Excel's claim for infringement has been resolved, has been decided. Once all the public proceedings are over at that point, you mean assuming that a firm is on the merits. Well, when I'm asking you is whether you agree that the district court has indeed resolved Excel's infringement point. That's right. So that would mean that there's no pending issue with respect to any Excel claim in the case. Yes, sir. The only question is whether there's a sanction that might be due. Yes, and whether we file it now or later, whether you knew it, I don't think that really affects the matter. One of the things that's a little, it strikes me as a little odd, is on the summary judgment. I mean, it seems like the district court here in granting summary judgment decided that any issues or arguments with respect to the license are separate and distinct and don't infect the summary judgment proceeding. That's one of the things that allowed her to go high and grant summary judgment in your favor, right? The license was superseded by the agreement yesterday. Right. But when the magistrate treated that issue, I mean part of her findings, it seems to me, were compelled by her suggestion that all of this stuff is intertwined and that what happened with the license and all of the issues with respect to the license could undermine, she said, the reliability of future proceedings. I don't know if she was talking about future proceedings. I assume she was talking about future proceedings in this case, but it's not the case
. Yes. Is the motion still extended at that point of time, just like a rule of 11 motion it could be made, which remains outstanding even though the judgment is fine? I think what we probably do is renew the motion and maybe recapture it. I'm not sure what... Is there a consequence to whether or not we say the same conduct and then go after fees, only as opposed to right now we're seeking fees and determination on the merits. We couldn't get the relief of termination on the merits because after this court rules, and if the bank proceedings are over and the Supreme Court proceedings are over, at some point it will be over, and you're right, any motion to terminate on the merits would be in fact be over. But the motion would be moved at that point. And it's styled in a caption, but the fundamental complaint would not be an all-be-mute, because we could ask an exceptional conduct, an exceptional case, there's also a sort of procedure by which the litigation system doesn't tolerate this type of conduct. And the fact that we end up winning on the merits despite all the concealment, despite all the shenanigans, doesn't move in that sort of coarse sense. But if you say, okay, so the motion is pending, all they ask for is a termination on the merits. They won on the merits, it's all over. In that sense it's moved. So you are agreeing that Excel's claim for infringement has been resolved, has been decided. Once all the public proceedings are over at that point, you mean assuming that a firm is on the merits. Well, when I'm asking you is whether you agree that the district court has indeed resolved Excel's infringement point. That's right. So that would mean that there's no pending issue with respect to any Excel claim in the case. Yes, sir. The only question is whether there's a sanction that might be due. Yes, and whether we file it now or later, whether you knew it, I don't think that really affects the matter. One of the things that's a little, it strikes me as a little odd, is on the summary judgment. I mean, it seems like the district court here in granting summary judgment decided that any issues or arguments with respect to the license are separate and distinct and don't infect the summary judgment proceeding. That's one of the things that allowed her to go high and grant summary judgment in your favor, right? The license was superseded by the agreement yesterday. Right. But when the magistrate treated that issue, I mean part of her findings, it seems to me, were compelled by her suggestion that all of this stuff is intertwined and that what happened with the license and all of the issues with respect to the license could undermine, she said, the reliability of future proceedings. I don't know if she was talking about future proceedings. I assume she was talking about future proceedings in this case, but it's not the case. I think what was motivating the magistrate judge, your honor, Judge Spiro, was a concern that our side not be penalized by their misconduct. So, is she hedging on the chance that you might get a reversal on summary judgment here? You'd have this to fall back on. Oh, I think it's clear that the magistrate judge was livid about the conduct. I mean, you can go back and stuff in the record very early on the judge was complaining about the conduct. But if she thinks that conduct was necessarily relevant to this case, doesn't that then undermine your honor? The same in general. The same in general. There were no factual issues in dispute. Well, it's very fine, but what happened was the district court and the magistrate judge, they both think they're ruling can stand independently. So, there's not a necessary connection between the two. The district court sort of said, look, when by the way the district court had the sanctions motion before her as well as the summary judgment motion, it just doesn't affect her analysis because she has so much evidence of these agreements, of the insurance policies, of the settlement agreements, that it's obvious from the record what happened here, which was the pens were transferred. And so, even if there was all this fake computers, it doesn't really undermine her decision. And so, in that sense, well, I mean, what's the evidence that the other side argues does undermine the summary judgment as the testimony of Mr. Mendelsson correct, that there is suggestion that there is some reference for the other side that at least is sufficient to call into question with inferences going their way. I think I believe the honors were noted that the clear title mentioned in the reply brief. And there is testimony in the record of Mr. Mendelsson explaining that when he, by the clear title, he means transfer of pan ownership. That was his lingo. Right. Well, whether a clear title which he defined as unrestricted in that particular paragraph, he means to give him an event. And they just quote, look, it was a reply brief and they quoted that snippet, but there is another snippet which we would be happy to provide the court where he explains that the clear title means transfer of ownership. Is that a question of credibility on his part or is that just a question of reading the record properly at that point? I mean, the district court was on the district court of credibility of determination. I mean, it's transfer of title. I mean, it's transfer of titles, transfer of ownership, it's transfer of the pan. I mean, Mr. Mendelsson is clear throughout this, that's what he believed had happened. And, you know, languages, what languages, and we can quote things. But the district court here did a very careful job, looked at lots of different course of conduct over the years, saw the insurgent policies. And, sure, the assignments filed in the pan office on behalf of Mr
. I think what was motivating the magistrate judge, your honor, Judge Spiro, was a concern that our side not be penalized by their misconduct. So, is she hedging on the chance that you might get a reversal on summary judgment here? You'd have this to fall back on. Oh, I think it's clear that the magistrate judge was livid about the conduct. I mean, you can go back and stuff in the record very early on the judge was complaining about the conduct. But if she thinks that conduct was necessarily relevant to this case, doesn't that then undermine your honor? The same in general. The same in general. There were no factual issues in dispute. Well, it's very fine, but what happened was the district court and the magistrate judge, they both think they're ruling can stand independently. So, there's not a necessary connection between the two. The district court sort of said, look, when by the way the district court had the sanctions motion before her as well as the summary judgment motion, it just doesn't affect her analysis because she has so much evidence of these agreements, of the insurance policies, of the settlement agreements, that it's obvious from the record what happened here, which was the pens were transferred. And so, even if there was all this fake computers, it doesn't really undermine her decision. And so, in that sense, well, I mean, what's the evidence that the other side argues does undermine the summary judgment as the testimony of Mr. Mendelsson correct, that there is suggestion that there is some reference for the other side that at least is sufficient to call into question with inferences going their way. I think I believe the honors were noted that the clear title mentioned in the reply brief. And there is testimony in the record of Mr. Mendelsson explaining that when he, by the clear title, he means transfer of pan ownership. That was his lingo. Right. Well, whether a clear title which he defined as unrestricted in that particular paragraph, he means to give him an event. And they just quote, look, it was a reply brief and they quoted that snippet, but there is another snippet which we would be happy to provide the court where he explains that the clear title means transfer of ownership. Is that a question of credibility on his part or is that just a question of reading the record properly at that point? I mean, the district court was on the district court of credibility of determination. I mean, it's transfer of title. I mean, it's transfer of titles, transfer of ownership, it's transfer of the pan. I mean, Mr. Mendelsson is clear throughout this, that's what he believed had happened. And, you know, languages, what languages, and we can quote things. But the district court here did a very careful job, looked at lots of different course of conduct over the years, saw the insurgent policies. And, sure, the assignments filed in the pan office on behalf of Mr. Hoffman and the president of Excel saying that in Divas owns these pens, there's just no genuine dispute that in Divas and Salidas owns these pens. Just status, what happens with the finality of the judgment? Do you agree that we have a final judgment before us or not? Do we have jurisdiction over this case? It's a really hard question, you know. I think that what is clear is that the tactics are clear, which is to get this case up quickly without having to rule on some having to review other sanctions. I think the tactics are clear. I think how the jurisdiction rules apply here is awfully difficult. In your honor, we read your opinion and other opinions emphasizing how important it is to make sure of finality. And so when we briefed it, we looked at it extremely, extremely carefully. And we continue to look at it. And, to be honest, I still think it's close, but I do think that because we would not be prejudiced by ruling on the merits. Because if a ruling on the merits in our favor doesn't prejudice us, it doesn't delay us. So your answer is, if you win, it's okay, but if you lose, there's no final judgment. And I knew you were on it, it was not going to like that outcome. I appreciate what you say, then. No, I just don't know that that's something that we can... When you track it through, I agree. And I started, I'm briefed it, the way the panel started this morning, which is it was pretty clearly no final judgment. But when you really start to track it through, the district court's opinion here doesn't turn on anything in the sanctions motion. And the sanctions motion doesn't turn on anything in the sum of treason motion. So in that sense, they are independent and related. And so you can review the sum of judgment order in our favor. Because there's no prejudice, there's no harm. But would you then state that the April 11, 2008 order was signed by the judge to be the final order in the case? Since she points out that all the claims, counterclaims and counterclaims are dismissed, are ruled upon? On the rationale, I just get, yes, that would be the final judgment. Now the 150-day running is another separate... That's a separate issue
. Hoffman and the president of Excel saying that in Divas owns these pens, there's just no genuine dispute that in Divas and Salidas owns these pens. Just status, what happens with the finality of the judgment? Do you agree that we have a final judgment before us or not? Do we have jurisdiction over this case? It's a really hard question, you know. I think that what is clear is that the tactics are clear, which is to get this case up quickly without having to rule on some having to review other sanctions. I think the tactics are clear. I think how the jurisdiction rules apply here is awfully difficult. In your honor, we read your opinion and other opinions emphasizing how important it is to make sure of finality. And so when we briefed it, we looked at it extremely, extremely carefully. And we continue to look at it. And, to be honest, I still think it's close, but I do think that because we would not be prejudiced by ruling on the merits. Because if a ruling on the merits in our favor doesn't prejudice us, it doesn't delay us. So your answer is, if you win, it's okay, but if you lose, there's no final judgment. And I knew you were on it, it was not going to like that outcome. I appreciate what you say, then. No, I just don't know that that's something that we can... When you track it through, I agree. And I started, I'm briefed it, the way the panel started this morning, which is it was pretty clearly no final judgment. But when you really start to track it through, the district court's opinion here doesn't turn on anything in the sanctions motion. And the sanctions motion doesn't turn on anything in the sum of treason motion. So in that sense, they are independent and related. And so you can review the sum of judgment order in our favor. Because there's no prejudice, there's no harm. But would you then state that the April 11, 2008 order was signed by the judge to be the final order in the case? Since she points out that all the claims, counterclaims and counterclaims are dismissed, are ruled upon? On the rationale, I just get, yes, that would be the final judgment. Now the 150-day running is another separate... That's a separate issue. It's a separate issue, yes. But with respect to our jurisdiction, then do we have jurisdiction based upon... You would be that would be the order. Yes, because the only reason that would not be the final order would be the relatedness of the sanctions motion. Now the sanctions motion, if in fact it is a sanctions motion, it's not a counterclaim, is it? Even though you've tried to get relief by sanctions of the dismissal. If it was a pending counterclaim, then we would have a very clear answer to the jurisdiction question, which is there would be no final judgment. It is not. And the question for the court is really how to characterize it. How do we characterize a rule-loven motion? It's still pending. Well, it's not so much the title of the motion, it's the substance of it. And if the rule-loven motion was based on conduct that didn't go to the merits, then it wouldn't be related. But if it goes to the merits, then it's related. Is that the determining factor, then, and whether it goes to the merits? Yes, and that's what this court has said, and the Supreme Court has said. The final judgment ends with occasion on merits. And so the question for the court is whether the sanctions motion is sufficiently related to the merits to deem it defeating finality. And I think the right answer is no. I think that now, but it's hard. It's really hard. I apologize if we've already asked, but on parole evidence, what's your view on whether or not we apply California law or federal circuit law? It's like California law, there would be nothing distinctive to warrant invoking the support of the State, special expertise. Under California law, then, was the judge authorized the issue of summary judgment motion in that basis? The contract? Yes, because once you start looking at the course of conduct, the seven years of silence by the other side, the evidence I referred to earlier, it's obvious that everybody assumed that in Divas and Sili, in Divas and Sili, did own these patents. And it doesn't really matter which law you look to, it's on this record, in Divas and Sili, it owns the patents, and that's why it was appropriate for some reason. Is the operating agreement a film tech type hereby grants agreement or is it an arach did, will be assigned a agreement? Well, we've breached that, and obviously we've breached our press suggestion that it's quite clearly an immediate transfer, it's not, it's sort of we'll do it later. Well, I mean, I was speculating. Sorry, sorry, sorry, the questions are, I mean, shall, there's no dates certain, I mean, yes. Why is shall an immediate assignment, shall is just like will grant, shall grant? Of course, you're on it, the words are malleable, I mean, that's what keeps us all in business. But the way that the parties operated here, the way the different phrases of the agreement fit together, the purpose, for example, the purpose of setting up the entity was to go about raising money, how would that work if they didn't have the, if it hadn't transferred anything yet
. It's a separate issue, yes. But with respect to our jurisdiction, then do we have jurisdiction based upon... You would be that would be the order. Yes, because the only reason that would not be the final order would be the relatedness of the sanctions motion. Now the sanctions motion, if in fact it is a sanctions motion, it's not a counterclaim, is it? Even though you've tried to get relief by sanctions of the dismissal. If it was a pending counterclaim, then we would have a very clear answer to the jurisdiction question, which is there would be no final judgment. It is not. And the question for the court is really how to characterize it. How do we characterize a rule-loven motion? It's still pending. Well, it's not so much the title of the motion, it's the substance of it. And if the rule-loven motion was based on conduct that didn't go to the merits, then it wouldn't be related. But if it goes to the merits, then it's related. Is that the determining factor, then, and whether it goes to the merits? Yes, and that's what this court has said, and the Supreme Court has said. The final judgment ends with occasion on merits. And so the question for the court is whether the sanctions motion is sufficiently related to the merits to deem it defeating finality. And I think the right answer is no. I think that now, but it's hard. It's really hard. I apologize if we've already asked, but on parole evidence, what's your view on whether or not we apply California law or federal circuit law? It's like California law, there would be nothing distinctive to warrant invoking the support of the State, special expertise. Under California law, then, was the judge authorized the issue of summary judgment motion in that basis? The contract? Yes, because once you start looking at the course of conduct, the seven years of silence by the other side, the evidence I referred to earlier, it's obvious that everybody assumed that in Divas and Sili, in Divas and Sili, did own these patents. And it doesn't really matter which law you look to, it's on this record, in Divas and Sili, it owns the patents, and that's why it was appropriate for some reason. Is the operating agreement a film tech type hereby grants agreement or is it an arach did, will be assigned a agreement? Well, we've breached that, and obviously we've breached our press suggestion that it's quite clearly an immediate transfer, it's not, it's sort of we'll do it later. Well, I mean, I was speculating. Sorry, sorry, sorry, the questions are, I mean, shall, there's no dates certain, I mean, yes. Why is shall an immediate assignment, shall is just like will grant, shall grant? Of course, you're on it, the words are malleable, I mean, that's what keeps us all in business. But the way that the parties operated here, the way the different phrases of the agreement fit together, the purpose, for example, the purpose of setting up the entity was to go about raising money, how would that work if they didn't have the, if it hadn't transferred anything yet. That operating agreement wasn't treated though as an assignment, was it? Treated as an assignment. It wasn't recorded in the patent office? There were, yes, 1995 things were recorded. The operating agreement? I'm pretty sure that in 1995, these pens were assigned to smart touch. And those assignments were recorded? Yeah, and you can go to the record and look at the pens and there's a smart touch when you listen to the disease. Those patents were recorded, but the agreement itself was not recorded. With the agreement itself was not, no, but the assignment, the fact of assignment was, I believe that was recorded with the pen. We could submit a letter on that if you'd like. That would be helpful. Okay, so we'll go ahead. One of the problems with your appendix on both sides. It's a joint appendix. There are pages which are missing. There are pages which are misnumbered. There are documents which are not properly referred to. It's rather difficult to follow it. You're telling me, and although we didn't prepare it, I do apologize. We should have thought about it. Who your name is on? It's a joint appendix. I would hope both of you responsible for it. It doesn't clearly reflect what you should be filing with this court. Absolutely. And I think that maybe it should be corrected and a proper joint appendix file or a correction to the joint appendix. Any other questions? Thank you. Mr. Charles, you have three minutes. If you need them. I'll be brief here on the address of a couple of points. First I'll go back to the sanctions motion
. That operating agreement wasn't treated though as an assignment, was it? Treated as an assignment. It wasn't recorded in the patent office? There were, yes, 1995 things were recorded. The operating agreement? I'm pretty sure that in 1995, these pens were assigned to smart touch. And those assignments were recorded? Yeah, and you can go to the record and look at the pens and there's a smart touch when you listen to the disease. Those patents were recorded, but the agreement itself was not recorded. With the agreement itself was not, no, but the assignment, the fact of assignment was, I believe that was recorded with the pen. We could submit a letter on that if you'd like. That would be helpful. Okay, so we'll go ahead. One of the problems with your appendix on both sides. It's a joint appendix. There are pages which are missing. There are pages which are misnumbered. There are documents which are not properly referred to. It's rather difficult to follow it. You're telling me, and although we didn't prepare it, I do apologize. We should have thought about it. Who your name is on? It's a joint appendix. I would hope both of you responsible for it. It doesn't clearly reflect what you should be filing with this court. Absolutely. And I think that maybe it should be corrected and a proper joint appendix file or a correction to the joint appendix. Any other questions? Thank you. Mr. Charles, you have three minutes. If you need them. I'll be brief here on the address of a couple of points. First I'll go back to the sanctions motion. Again, it was a rule 37 motion, not a rule 11 motion. If you look at the first page of the Manstrait Judges report and recommendation, it says, and that's at 12, 3, 30, it clearly states that individuals in solid is bringing a motion for sanctions against Excel, requesting that the court dismiss Excel's claims against them. There was not a request for monetary sanctions with respect to that motion. It was a request for dismissal. Well, at the other side, he said that the ask for fees. Yes, for... I'm reading the report and recommendation, Your Honor. And any of it, Your Honor, they couldn't ask for fees because it would be violated. I'm not going to tell you the automatic stand. It's also bankrupt, so... I guess the record will be collected. For our per-request. We'll take a look at it. Okay. In that context, I'll note, Your Honor, that the Manstrait Judges didn't rule. The Registration Manstrait Judges issued a report and recommendation. And that report and recommendation issued in November of 2006. The district court didn't take any action on that for over a year. And that gets to the point that we didn't... or try some sort of tactical ploy by noticing this appeal, trying to get around the motion for term-rained sanctions. The motion for term-rained sanctions was moot when it was filed. But we had no choice but to notice this appeal
. Again, it was a rule 37 motion, not a rule 11 motion. If you look at the first page of the Manstrait Judges report and recommendation, it says, and that's at 12, 3, 30, it clearly states that individuals in solid is bringing a motion for sanctions against Excel, requesting that the court dismiss Excel's claims against them. There was not a request for monetary sanctions with respect to that motion. It was a request for dismissal. Well, at the other side, he said that the ask for fees. Yes, for... I'm reading the report and recommendation, Your Honor. And any of it, Your Honor, they couldn't ask for fees because it would be violated. I'm not going to tell you the automatic stand. It's also bankrupt, so... I guess the record will be collected. For our per-request. We'll take a look at it. Okay. In that context, I'll note, Your Honor, that the Manstrait Judges didn't rule. The Registration Manstrait Judges issued a report and recommendation. And that report and recommendation issued in November of 2006. The district court didn't take any action on that for over a year. And that gets to the point that we didn't... or try some sort of tactical ploy by noticing this appeal, trying to get around the motion for term-rained sanctions. The motion for term-rained sanctions was moot when it was filed. But we had no choice but to notice this appeal. And quite frankly, the motion was brought against us. We had no interest in trying to push that motion forward. They let the Senate and the court's talking for a year, without trying to do anything to have the court rule on it. The first time that they ever took any action on the motion for term-rained sanctions was after Excel was granted some regedment. And they asked for a status conference. And I believe March or April, they April 08. We want to discuss resolution of motion for term-rained sanctions. That's the first time they raised that issue. And the court improperly determined the automatic state applied to it. But there was no tactical ploy. You know, we wanted to get this case up on appeal because we thought we were agreed by the court's press on regedment order. But there was no tactical ploy to try to avoid the merits of the motion of term-rained sanctions. And quite frankly, the honor it was moot. And as the court reverses and it doesn't order the case-beat dismiss, if it goes back, they can reassert the motion at that time. Because in my view, every case that I've had that's gone to judgment, if there's a pending motion, and the case goes to judgment, all claims are merged into that judgment. Everything before the court goes into that, in this merging that judgment. And to the extent that you've got a motion for term-rained sanctions, it goes to the merits, it was moot. And it would gone off calendar as a matter of course from judgment. But you're proceeding on a basis that was moot when it was filed? It was when it was filed because the court had already, because we had dismissed our claims and the court had adjudicated the issue. So yeah, it was moved when it was filed. And then I'll just go back to Mr. Mendelsson's testimony, your honor. I read the entirety of that transcript and I did a pick and choose. And I think the question could not be more clear that it was posed to Mr. Mendelsson who was asked, what do you mean by clear title? Do you mean ownership of the patents and smart touch? And that word was used. And he said, my phrase is, would be unrestricted rights to use it. That's not picking and choosing. That question could not be more clear
. And I notice I'm out of time. Thank you Mr. Charles. Thank you Mr. Smith