So, I'll give you a little time. Somehow with all the shuffling, I thought people were leaving, but not exactly. When you're ready. Thank you, Your Honor, May 2, for your support. Mark Lemley, an animal morsel on behalf of Homecoming Farly. I probably ought to begin by addressing the Monsaniversis strugged case, which was decided after briefing was completed in this matter. In Monsaniversis strugged, the court held as the original of Farly's decision had before it, that the doctrine of patent exhaustion was in half a little. The reasoning, we think the primary reasoning it did so, was an statement that, quote, there was no unrestricted sale because the use of the seeds by seed growers was conditioned on obtaining a license for Monsanto. We think that fact critically distinguishes this case in the procedural posture in which it now arises. After this case was last of this court, when Santo made a strategic decision to abandon any claim that there was an enforceable technology agreement that Mr. Mufarly did violate it. It decided instead to proceed only on one of the two patents, the 605 patent. We think that means that the exhaustion issue has to be addressed in this case without the benefit of Monsanto's claim of a restricted licensing agreement that changes exhaustion, which is to be treated as an unrestricted sale. Mr. Mufarly, as I recall, the exhaustion issue was raised in a reply brief, not in the principal brief, and that's not an issue that we normally will entertain. Why don't you direct your arguments to what was raised in the principal brief of your Valentine? I think you didn't, you weren't on it, but nonetheless you're representing Mr. Mufarly. And that's the question whether the damages could have been awarded under the 605 patent. I'll happily do that, you are. I do think in fact we haven't waved the issue and I'd like to address that at some point if the court would like
. Let me focus on the damages. If you could briefly say why, I think you might. Certainly, the argument made in the original telegraph is a patent-issues argument that says the rights are outside the scope of the patent grant. That's a requirement for patent misuse. The argument was by dropping the 435 patent at trial in the district court, which explicitly covered seeds and going to the 605 patent. The 605 patent didn't cover seeds saving. In their response brief, Monsanto. Don't the seeds have the genetic code? Yes, you're right. In the Monsanto argument in the response brief, we don't need the technology agreement here because we have the 605 patent and the 605 patent covers a genetic code for a promoter region. That shows up in the new seeds as well. We responded in the reply brief, your honor, by saying that argument is inconsistent with the exhaustion principle once you treat this as a first sale. And so we think it's preserved on the damages issue that Judge will refer to. There's no disagreement in this case as to how much seed was repainted. And when Farley purchased that seed during the two years before he was enjoined, he would have paid Monsanto $6.50 of back, just as every other farmer in the country does. The jury awarded damages of $40 a bag more than six times than I know. It did so based on Monsanto expert Hoffman's testimony that Monsanto would demand that additional money to guard against the possibility of replanting for multiple years and the possibility of transfer to third parties. What, why, as a just a matter of fact, wouldn't one seed planted produce a plant that would give them 50, 60, 80, 100 seeds? Why, why, why then wouldn't there be some logic to the jury's conclusion that the $6.50 bag would quickly multiply in subsequent years to form more? Your honor, the question is what you can do with those seeds
. Monsanto knows when it sells a bag of seeds that all of those seeds are going to be planted and you can sell those multiple seeds as food. The question is can you replant them in subsequent years or it's element of third parties? In this case, MacFarland was under injunction for preventing him from doing either thing. And so there was no risk whatsoever that he was going to do the things that would cause that harm. There's no question here but that he has always complied with injunctions once they were issued in this case. That fact distinguishes this case from Monsanto versus Ralph, where the defendant and fat sold seeds to third parties light about another of, repeatedly destroyed evidence and sanctioned for his repeated misconduct. The court there are held a similar damages that were have a kicker or a multiplier if you will. In part, that was important because, quote, there is evidence that at least some of that seed was transferred to others. The potential risk to Monsanto's business from such a transfer goes far beyond any harm that would have come from Ralph's burning seed. That risk wasn't present here. Indeed, the district court found that MacFarland's conduct stands in stark contrast to that graph. A wording extra damages for hypothetical future conduct, while also joining that conduct is duplicating. As any discourse specifically held in MacFarland 2, in rejecting Monsanto's effort to get access liquidated damages under the contract, the court there said, quote, Missouri law does not permit double recovery for the same injury. I submit that that's equally true of palatable. What Monsanto persuaded the jury to do was to award what are the effective punitive damages, far in excess of the reasonable royalty, and indeed the far exceeded Monsanto's loss of profits. That's directly contrary to this court's rule in her purposes, CRR. Recent will royalty damages are not designed to punish or to deter. That's what enhanced damages were for. But the district court refused to award enhanced damages in a thoughtful opinion. And Monsanto did an appeal that decision
. To affirm the jury verdicts here would undo that rule. We don't think Ralph should be understood to be at odds with more than two decades of this court impressive. But if it is, this court should follow a murmur and nipson in relying on the established royalty, because of the rule that cases in conflict, the first in time cases the one that has to be followed. And alternatively, a minimum of this court concludes that Ralph is not distinguishable. We request that the panel refer to each one of us because of the conflict. I'd like to say a bit about the injunction issue of the process of being able to apply may. District Court has broad discretion not only to decide whether an injunction is appropriate, but to determine the terms of that injunction. District Court enjoined Monsarly from saving and replanting or from transferring seat. It did not, however, enjoined Monsarly from doing whatever other far were in America from there. Purchasing Monsarly from 250 authorized seat dealers, paying the license fee and agreeing to the technology agreement. Monsarly asks this court to impose a punitive injunction that does far more than prevent infringement. It puts Monsarly in a worse position than he would have been in but for the infringement in order to punish him for the tumeric, having the tumerity to test the legality of Monsarly's conduct. There's no precedent for using the injunction would be finesseful. Indeed, this court said in Amstarvurses, in bioretaqued, that quote, punishment is not the purpose of an injunction. That's particularly true because of the District Court's express finding repeatedly in the final opinion that Mr. Monsarly never acted in that state, that all of his conduct during the course of this litigation was in good faith. Monsarly statements in its surrogly grief that Monsarly has stated he intends to continue infringing our pay-and-evalce. That's simply not true. What Mr
. Monsarly stated in the year 2000 was that he thought it was legal to replant see any intended to do so unless he was enjoying it. Once he was enjoying in 2001, he has never done so again. Nordes and Santos analysis of the four factors justified broad media junction. Monsarly's claim of irreparable harm and inadequate remedy at law presumes more infringement, something that's already been enjoyed. It can't show irreparable harm and he can't show any harm whatsoever from having the far-land plant seeds once he's lawfully purchased them from an authorized grower and it decompilized with the technology agreement. Indeed, Monsarly is going to make a handsome profit from those purchases. After eBay, Monsarly was claimed that the balance of hardships can essentially never favor the infringer, I think, is also unsupportable. It's true that being made to stop infringing is not a hardship that courts will consider, but that's not the hardship that's being claimed he's already been enjoying from infringing. It's the difficulty of switching away from round-up ready soybeans after you planted them in the field that you adopted the technology that is the hardship that is your court considered. And given that there's no hardship whatsoever to Monsarly since he's already enjoying from infringing the balance of the hardships we think clearly favors Monsarly. The court has no further questions. I'm happy to reserve your make-up. We will save you time, Mr. Lennley. Thank you. I may appease the court. There are three points that I'd like to make this morning. The first is that Mr. McFarland's challenges to Monsarly's licensing provisions are essentially foreclosed both by this court's decision in McFarland 2 and by the court's decisions in scrum's, which addressed virtually every point that has been raised today
. And will, in favor of Monsarly, that reasoning applies both to the 435 and the 605. Will help me with the reasoning then that the $40 of bag isn't a bit excessive when you've already enjoined any repetitive future sales or other replanting of the seed. Well, first of all, the turning of the day. It's really addressed virtually every argument that's being raised here today about what should have been a reasonable royalty. When you look actually to what Mr. McFarland has actually argued in his brief about what the appropriate royalty should be, all he really argues is that $6.50, which was the technology fee, was an established royalty. And this court clearly rejected that in Ralph. And then if you then turn to the basis on which Monsarly's expert testify both in Ralph and in this case, Mr. Hoffman, he explained in the jury that he was adopting what was called a split savings approach, which is an approach that this court has approved in its prior decisions as a basis for a reasonable royalty where there was never stateless royalty. He explained how he calculated that decision. He then took into effect both the other benefits that Mr. McFarland obtained from using round up already seed in in Friging Manor and also certain harms to Monsanto. But isn't that the key in an in Friging Manor? I mean, the point that seems to me is, and I agree with just Rager that I'd like to hear about, is why is it that given there's an injunction that this is not excessive? If you assume that there will be compliance with the injunction, and I can see it, in other words, if you have one bag of seeds, you can ultimately have all of Mississippi using your seeds. And so, sure, you can say that bag of seeds is worth a lot of money, but if you are for a close from doing anything that goes beyond the scope of the technology agreement with the seeds, then how do you get to a very large number? Well, first of all, let me point out the jury. They reduced it down to what happened. I understand. But it's still a pretty large number given the price of the charge for that bag of seeds at the seed store. Well, the price for the bag of seeds at the seed store was $25
. So $40 royalty on a $25 bag sounds like a lot. No, not when you consider, I think, to present what Mr. Hoffman testified, and have what were the potential benefits to Mr. McFarland from using infertility. But they all have to assume multiple use, don't they? Well, you can't get more than $25 value out of a $25 product unless you're in a multiple-use situation. I don't think that's right, Judge Rayor. He specifically testified that what he was testified to was a license, assuming a hypothetical license, of course. For one year we planned it in the second year. But that's in joint, right? What he specifically was asked. And we use this a paid up license. And he said, no, this is not a paid up license. I'm not testifying that this is what would be added with the Monsanto. If you just said, here, take this and do with it what you want, including selling it to everybody else and so forth. He specifically said, this is what I think would be the benefit of Mr. McFarland and how Monsanto should be compensated just for replanting in the second year in an unauthorized manner. And remember, it's a hypothetical negotiation. And at the hypothetical negotiation, you don't know whether there's going to be infringement. And so you do have to take into account not just what he actually did with the tax, but possibilities of what might be doing. And there's a risk there
. But not just the risk, there are also benefits to Mr. McFarland that are on the plus side of the legend. And all of these arguments were essentially raised in Ralph. Now Mr. Lundy says, well, the injunction issue, I guess, was not... Well, I think the injunction... I mean, Ralph was... Mr. Ralph was in Johnny Dullesau. But he had not... I mean, this is an issue I want to ask you about too, but he at least seems to have been committed to a different course of action than the course of action that Mr
. Lemley is asserting on the path of his client. Well, the evidence... the evidence in the case, certainly, was that Mr. Ralph had sold the seat and destroyed the evidence. But that did not factor into the jury's population of damages. And it does not factor into the basis on which this court affirmed the award of the world to be in Ralph. So I think that the reasoning, really when you get right down to it, what Mr. McFarland has presented to the challenges to his damages, one is it should have been 650, which can clearly cannot be the right answer. And the other is Mr. Hoffman wasn't... But how do you get 40? With the injunction in place. And address it with the injunction in place. This is..
. I think I can get to 40 because even the hypothetical negotiation, the hypothetical negotiation, and remember the... Is it a hypothetical negotiation with the presumption of no future infringement or not? Oh, I think the hypothetical negotiation is, as Mr. Hoffman testified, to you will replant in one year. You'll take this one bag and you'll be kind of one year. And that is all. And it's a hypothetical. And it's... I mean, it's... One year of infringing. Right. Not the first year of lawful conduct. That's correct. And the evidence was that there was
... Of course, Monsanto would never have licensed that given its business month, and that the amount of compensated Monsanto had to take into account what that activity, the danger that that activity would do to the business model, to Monsanto's relationships with its... with the seed companies, and to the brand, which I think is also very important, because if Roundup already sees, he's mixed with non-Roundup already seed when it's harvested, and then somebody sprays Roundup over it, and some of the seed dies. Are those presumptions taking into account the injunction? Well, I mean, again, I mean, he was Mr. Hoffman testified in a world where it was hypothetical, and so you didn't know whether the injunction was issued. But there was certainly a risk, I would say, that was some risk that infringing behavior thereafter. But you don't know, and I think that's in always the case where the hypothetical negotiation and his methodology, which was the split savings methodology, which really is all that the downward challenge, I think, can go to. Well, the Monsanto's own expert testified about a split savings methodology. He came up with different numbers. But really, I think once you get past those two problems, I think really all you have is a challenge to the number, and that's a very, very... Deforent to standard numbers. There's certainly a right about that. There has to be some basis for it, and I think I have reached them. Let me ask you a question, which I should know the answer, but I don't, so help me out. Give me the chronology of events with respect to the infringing activity that was before the trial court, and before us, and the injunction, so that we have a sense of when what happened that's been done. That we should be paying attention to how to calculate damages as a win. There's a stipulation in the record that says, Mr. McFarling, we planted about... Let's use... You know, it was about 3400 bags in 1998, and about 3400 bags in 1999. Okay, and that's the infringing conduct, 1998. Those were bags from those years' harvest, and the jury awarded $40 per unit for each of those bags. The case was brought in the year 2000. A temporary restraining order was entered in April 2000. The preliminary injunction was entered in 2001. We have not argued that infringement took place after those orders were entered. And the stipulation is that the stipulation is in the joint appendix. Okay, so at the time of the infringement at least, Mr. McFarling was free in his own mind, at least, to continue to replant for additional years
. Give me the chronology of events with respect to the infringing activity that was before the trial court, and before us, and the injunction, so that we have a sense of when what happened that's been done. That we should be paying attention to how to calculate damages as a win. There's a stipulation in the record that says, Mr. McFarling, we planted about... Let's use... You know, it was about 3400 bags in 1998, and about 3400 bags in 1999. Okay, and that's the infringing conduct, 1998. Those were bags from those years' harvest, and the jury awarded $40 per unit for each of those bags. The case was brought in the year 2000. A temporary restraining order was entered in April 2000. The preliminary injunction was entered in 2001. We have not argued that infringement took place after those orders were entered. And the stipulation is that the stipulation is in the joint appendix. Okay, so at the time of the infringement at least, Mr. McFarling was free in his own mind, at least, to continue to replant for additional years. Well, he had been approached by representatives of Monsanto who had discovered this act. Right, but there was no legally binding prohibition against his doing that other than... He was told so when he signed the technology agreement. There was no injunction. There was no injunction. That's where I do want to say a few words about a cross appeal. Because I think that there is a little bit of a shift passing in an idea about the issue on a cross appeal. Out principle concern about the district court's order is that as we've been very arguably compels Monsanto to grant a license to Mr. McFarling. And I do want to make clear that is our principle concern with the district court's order. Now, perhaps as the Monsanto submitted in order to the district court for a permanent injunction, that was basically the same as the preliminary injunction that was said. You may not obtain, plant, save, replant, etc. The district court wrote a different order, which he said. Mr. McFarling may not be infringed by replant, but then the court went on to say, except that Mr. McFarling may plant any round-up ready scenes that he obtains from a law-throwing authorized deal. We read that order and were very concerned because we read it invariably and said Mr
. Well, he had been approached by representatives of Monsanto who had discovered this act. Right, but there was no legally binding prohibition against his doing that other than... He was told so when he signed the technology agreement. There was no injunction. There was no injunction. That's where I do want to say a few words about a cross appeal. Because I think that there is a little bit of a shift passing in an idea about the issue on a cross appeal. Out principle concern about the district court's order is that as we've been very arguably compels Monsanto to grant a license to Mr. McFarling. And I do want to make clear that is our principle concern with the district court's order. Now, perhaps as the Monsanto submitted in order to the district court for a permanent injunction, that was basically the same as the preliminary injunction that was said. You may not obtain, plant, save, replant, etc. The district court wrote a different order, which he said. Mr. McFarling may not be infringed by replant, but then the court went on to say, except that Mr. McFarling may plant any round-up ready scenes that he obtains from a law-throwing authorized deal. We read that order and were very concerned because we read it invariably and said Mr. McFarling may plant any sentence that does this require us to license our technology to Mr. McFarling, even if we don't want to, because our position is that we don't want to sell round-up ready scenes to Mr. McFarling in the future. So we went back to the district judge and said, Your Honor, we're very concerned about this order. Could you please clarify the order and insert some, it's halicize some language, which is in our brief, but I think it's a page 61. It's a talcize, page 61. And we said, please make clear that whatever, whatever this order means that Monsanto is not required for license to technology to Mr. McFarling. The district court would deny our motion to alter our management. And in her reasoning, she says, Monsanto argues that ordinarily nobody has any right to any obligation for license, it's happened to invention to anybody. However, this case is different. And then she proceeds to explain that her reasoning is for why. This case is different. Our reading of this order is that it very arguably compels Monsanto the license in Mr. McFarling. And we think that that is legally erroneous because of the general rule of law that an inventor is not under any legal obligation to license its technology to anybody. And that is just a, I think a general legal principle with the district court overlooked. And second, to the extent that you, one drills down into the district court's basis for rejecting our argument here, she said Monsanto is just nonselective in licensing tech, it's technology. And that's just factually wrong, which is that Monsanto does have a policy of not licensing its invention to certain people as different legal needs
. McFarling may plant any sentence that does this require us to license our technology to Mr. McFarling, even if we don't want to, because our position is that we don't want to sell round-up ready scenes to Mr. McFarling in the future. So we went back to the district judge and said, Your Honor, we're very concerned about this order. Could you please clarify the order and insert some, it's halicize some language, which is in our brief, but I think it's a page 61. It's a talcize, page 61. And we said, please make clear that whatever, whatever this order means that Monsanto is not required for license to technology to Mr. McFarling. The district court would deny our motion to alter our management. And in her reasoning, she says, Monsanto argues that ordinarily nobody has any right to any obligation for license, it's happened to invention to anybody. However, this case is different. And then she proceeds to explain that her reasoning is for why. This case is different. Our reading of this order is that it very arguably compels Monsanto the license in Mr. McFarling. And we think that that is legally erroneous because of the general rule of law that an inventor is not under any legal obligation to license its technology to anybody. And that is just a, I think a general legal principle with the district court overlooked. And second, to the extent that you, one drills down into the district court's basis for rejecting our argument here, she said Monsanto is just nonselective in licensing tech, it's technology. And that's just factually wrong, which is that Monsanto does have a policy of not licensing its invention to certain people as different legal needs. There is a risk of infringement in the future or what happened. And so I think that the district, our principal concern is that this appears to be the operation of the district court's order. And I think the district court's injunctive order should be reformed at least to the extent that it seems to come from Monsanto the license its technology to Mr. McFarling. I'd like to reserve the remainder of your time for a bottle of McFarling across the field. Yes, it's something to rebut. We're going to begin by addressing the damages issue. We can clear first off that the only reason the jury had in testimony to award $40, $60.50 as a royalty was the testimony of Monsanto's expert Mr. Hoffman that Mr. McFarling could use the seed again and again for multiple years. That is when the appendix of record of 972 to 973. Now is that when you say multiple years are we talking about post injunction years? Yes, we're talking about the two year period. No, we're talking about post injunction years. The question how did you choose the seed multiplication factor? Answer it's part of the equation that saved seed could be saved for multiple years. Roar saved it for a number of years and it could be saved for a long time. That's part of it because there's a risk that if a Roar saves one year he's going to continue to save. So that's a factor in the equation but not the only reason. It goes on then to say you do that on an every other year basis and that way you get more basically getting more use out of the same seed
. There is a risk of infringement in the future or what happened. And so I think that the district, our principal concern is that this appears to be the operation of the district court's order. And I think the district court's injunctive order should be reformed at least to the extent that it seems to come from Monsanto the license its technology to Mr. McFarling. I'd like to reserve the remainder of your time for a bottle of McFarling across the field. Yes, it's something to rebut. We're going to begin by addressing the damages issue. We can clear first off that the only reason the jury had in testimony to award $40, $60.50 as a royalty was the testimony of Monsanto's expert Mr. Hoffman that Mr. McFarling could use the seed again and again for multiple years. That is when the appendix of record of 972 to 973. Now is that when you say multiple years are we talking about post injunction years? Yes, we're talking about the two year period. No, we're talking about post injunction years. The question how did you choose the seed multiplication factor? Answer it's part of the equation that saved seed could be saved for multiple years. Roar saved it for a number of years and it could be saved for a long time. That's part of it because there's a risk that if a Roar saves one year he's going to continue to save. So that's a factor in the equation but not the only reason. It goes on then to say you do that on an every other year basis and that way you get more basically getting more use out of the same seed. Clearly the testimony is referring to the idea that I'm going to get the seed once and never again. Use it again and again and again. And that's simply not appropriate in circumstances where there's an injunction in place. Now the district also talks about you know damage to business reputation etc as justifying the $40. Why doesn't why can't the court affirm on that basis? Well you know I think the theory has to be what Mr. Wilson is effectively saying that we wouldn't license license at any price and therefore you should give us a really high price because we wouldn't license at any price. But I think that's not what the reason of the royalty rules are designed to do. The reason of the royalty rules are designed to determine when there was in fact infringement. What must the closest business deal we would have had if there wasn't infringement if the parties instead had come to a deal? That closest business deal I think for one year's work of infringing right so replanting a two years, replanting for two years would never have been $40 of that. Because Mr. McFarland could go down the street to any of the seed companies and lie those bags for $6.50. He would never have agreed to and no farmer would have agreed to. A six times multiplier to compensate for business reputation. I suggest also that there is a reasoning risk to business reputation. It's important to realize Mr. McFarland never resold the seed to a very party. He replanted it on his own farm just as he'd done with all the other seed he purchased throughout his career as a farmer. That turned out to be an act of infringement in the district court and so he was enjoying from that
. Clearly the testimony is referring to the idea that I'm going to get the seed once and never again. Use it again and again and again. And that's simply not appropriate in circumstances where there's an injunction in place. Now the district also talks about you know damage to business reputation etc as justifying the $40. Why doesn't why can't the court affirm on that basis? Well you know I think the theory has to be what Mr. Wilson is effectively saying that we wouldn't license license at any price and therefore you should give us a really high price because we wouldn't license at any price. But I think that's not what the reason of the royalty rules are designed to do. The reason of the royalty rules are designed to determine when there was in fact infringement. What must the closest business deal we would have had if there wasn't infringement if the parties instead had come to a deal? That closest business deal I think for one year's work of infringing right so replanting a two years, replanting for two years would never have been $40 of that. Because Mr. McFarland could go down the street to any of the seed companies and lie those bags for $6.50. He would never have agreed to and no farmer would have agreed to. A six times multiplier to compensate for business reputation. I suggest also that there is a reasoning risk to business reputation. It's important to realize Mr. McFarland never resold the seed to a very party. He replanted it on his own farm just as he'd done with all the other seed he purchased throughout his career as a farmer. That turned out to be an act of infringement in the district court and so he was enjoying from that. But there's no harm to him on Santo here beyond the sales that it lost in $6.50. Now you made a motion for a... I'm sorry, we've done a lot of... Yes. And was the injunction point pressed in that motion? I believe it was, Your Honor. We made a motion for remitted or which is in the record at Pendex at 1746. We also made offer to propose jury instructions that if adopted, both correctly state the law, and we think would have solved this problem from coming about, saying that you're not entitled to recover the defendant's gain. The point of patent damages is to compensate the plaintiff for their losses, not to constitute a disrogement or unjust enrichment remedy, and saying that you're not entitled to compensation for losses to third parties. Mr. Wilson referred to $25 purchases of seed bags from the seed growing companies because the seed sellers, it turns out, will also a jack of their price up, but that's not injury on Santo. When Santo's loss is $6.50 every time it forbid, we can just sail the bags of seed. Finally, I should note, it was issued that the.
. But there's no harm to him on Santo here beyond the sales that it lost in $6.50. Now you made a motion for a... I'm sorry, we've done a lot of... Yes. And was the injunction point pressed in that motion? I believe it was, Your Honor. We made a motion for remitted or which is in the record at Pendex at 1746. We also made offer to propose jury instructions that if adopted, both correctly state the law, and we think would have solved this problem from coming about, saying that you're not entitled to recover the defendant's gain. The point of patent damages is to compensate the plaintiff for their losses, not to constitute a disrogement or unjust enrichment remedy, and saying that you're not entitled to compensation for losses to third parties. Mr. Wilson referred to $25 purchases of seed bags from the seed growing companies because the seed sellers, it turns out, will also a jack of their price up, but that's not injury on Santo. When Santo's loss is $6.50 every time it forbid, we can just sail the bags of seed. Finally, I should note, it was issued that the... Is there something a little strange about saying in the reasonable royalty setting that we will... It's setting the injunction aside for a moment, saying that we will calculate the reasonable royalty as if the parties engaged in the hypothetical negotiation is going to comply with all the restrictions, which that party has no intention to comply with. In other words, if I go down to CompUSA to buy a version of Microsoft Windows for $200, presumably the royalties $100, but if I intend to use that in a fringing way to spread it all over the city of Washington, I would pay more for that license than $100. Absolutely your honor, but what we suggest is that the San Antonio can't have a full weight. If Mr. McFarley would pay $40 for an unlimited right to use the seed to replant it over and over to sell it to third parties, then he ought to be able to use that seed over and over and sell it to third parties. The fortune-lift Indian junction and allowed him to continue to use the seed. If it's not, in fact, the case that he's getting that right because he's going to be enjoying for making those additional uses, then I submit you to eat and know what reasonably would pay that extra money for a right that they ultimately never got. I should note finally in that respect that the risk that if we adopt a general rule of a multiplier, that the threat or the possibility of ignoring an injunction justifies a multiplier in reasonable royalties, you will hear that argument from every patent he who comes before the sport in the future. Finally on the injunction issue, the first thing to note here is there is no compulsory license in this case. Indeed, injunction doesn't bind on Santa at all. So if you were to go, if Mr. McFarley would go down to the seed store and say, I'm ready to, you know, I give up, I'm ready to go with the program and they say, sorry, you're on the blacklist, then you'd walk away and say, I think that's right, it's too bad. Well then the new old, I don't sense that there's any disagreement between two of these. Well maybe there's not and we understand that Santa's position in the briefs, though not admittedly Mr. Wilson
.. Is there something a little strange about saying in the reasonable royalty setting that we will... It's setting the injunction aside for a moment, saying that we will calculate the reasonable royalty as if the parties engaged in the hypothetical negotiation is going to comply with all the restrictions, which that party has no intention to comply with. In other words, if I go down to CompUSA to buy a version of Microsoft Windows for $200, presumably the royalties $100, but if I intend to use that in a fringing way to spread it all over the city of Washington, I would pay more for that license than $100. Absolutely your honor, but what we suggest is that the San Antonio can't have a full weight. If Mr. McFarley would pay $40 for an unlimited right to use the seed to replant it over and over to sell it to third parties, then he ought to be able to use that seed over and over and sell it to third parties. The fortune-lift Indian junction and allowed him to continue to use the seed. If it's not, in fact, the case that he's getting that right because he's going to be enjoying for making those additional uses, then I submit you to eat and know what reasonably would pay that extra money for a right that they ultimately never got. I should note finally in that respect that the risk that if we adopt a general rule of a multiplier, that the threat or the possibility of ignoring an injunction justifies a multiplier in reasonable royalties, you will hear that argument from every patent he who comes before the sport in the future. Finally on the injunction issue, the first thing to note here is there is no compulsory license in this case. Indeed, injunction doesn't bind on Santa at all. So if you were to go, if Mr. McFarley would go down to the seed store and say, I'm ready to, you know, I give up, I'm ready to go with the program and they say, sorry, you're on the blacklist, then you'd walk away and say, I think that's right, it's too bad. Well then the new old, I don't sense that there's any disagreement between two of these. Well maybe there's not and we understand that Santa's position in the briefs, though not admittedly Mr. Wilson. They're concerned that this injunction will be read in a way that I think you've just said you would not press it to be read. That's correct, what we think is that we think Mr. McFarley should be able to try to purchase the seed. We think that when Santa, while it claims to have an unauthorized, growerless and to treat the technology agreement as an application for a license, doesn't in fact operate. Yeah, but if they started one tomorrow and we're the only one on it, then you would say that's just bad luck from Mr. McFarley. That's correct, you're right. We do not think that Mr. McFarley, and we don't think the district courts were intimates that Mr. McFarley is, and Santa was obligated to sell some of his records. Some of her comments in connection denying that the modification seemed to be to suggest perhaps as an inclination and a direction, but you're saying that's not your position with respect to the meeting and the meeting. I think that's right, you're right. One thing I want to make clear is that we think that the, but Santa was free, subject to the dictates of whatever its deals with the seed companies are, and to the dictates of the antitrust laws, doing both those restrictions. It might be the case, we don't want to pre-judge the idea that he might be, they might be acting unlawfully in imposing such a registered, but we don't think that the... Not because of this in just that. Thank you, Robert. Thank you, Mr
. They're concerned that this injunction will be read in a way that I think you've just said you would not press it to be read. That's correct, what we think is that we think Mr. McFarley should be able to try to purchase the seed. We think that when Santa, while it claims to have an unauthorized, growerless and to treat the technology agreement as an application for a license, doesn't in fact operate. Yeah, but if they started one tomorrow and we're the only one on it, then you would say that's just bad luck from Mr. McFarley. That's correct, you're right. We do not think that Mr. McFarley, and we don't think the district courts were intimates that Mr. McFarley is, and Santa was obligated to sell some of his records. Some of her comments in connection denying that the modification seemed to be to suggest perhaps as an inclination and a direction, but you're saying that's not your position with respect to the meeting and the meeting. I think that's right, you're right. One thing I want to make clear is that we think that the, but Santa was free, subject to the dictates of whatever its deals with the seed companies are, and to the dictates of the antitrust laws, doing both those restrictions. It might be the case, we don't want to pre-judge the idea that he might be, they might be acting unlawfully in imposing such a registered, but we don't think that the... Not because of this in just that. Thank you, Robert. Thank you, Mr. Lemley. The Tulipson has a little time to rebut. Thank you, Robert. I just want to say, correct something. I said the actual replaning occurred in 1999 and 2000 from the 1998 and 1999, perhaps not in my, but before our four-order tenure. As to the cross-at-heal, we're obviously going to leave the year Mr. Lemley taking a position that we heard, we did make another argument in our brief that the district court should have enjoyed Mr. McFarlane from obtaining the injunction, but I'd like to just stop from obtaining round-backeraties as seed, but I'd just like to say our principal concern is the exactly the point that Judge Price has gotten to it. Well, but the second part, I mean, are you abandoning the second round of the year? I mean, there you would be saying in effect that even if we were really eager to sell to Mr. McFarlane, he'd be viling the court order if he walked into the seed store and asked for something. Well, I think the problem is that he walked into the seed store and got it. Yeah, I'll put it. And even though you were eager to sell it to him, no. Even if we had tried not to sell it to him and somehow we had gotten it. I think that is our concern. And that he should be enjoying from doing, from doing that. That is our concern with the way the district court not going farther. And I think the district court's order needs to just be reformed on that basis. But if you did reform it according to your second argument, it would seem to me it would prevent you from selling it to him
. It, it, it, it, unless we, unless you went in and got an audition, the order. Unless we went back and agreed to do so, presumably. Thank you. Thank you, Mr. Wilson. You've both played a beseeds of audition with the district court coming and do court