Legal Case Summary

. It also seems you're getting insured out of the state. Your client did something that I think was actually rather too much and entirely appropriate, which is at a concern toward infringement potential wilderness, where it's controlled the product itself in the market. Well, if you left the products on under this covenant, you'd now be able to keep making them, right? But the fact that you pulled them on seems to be almost too instant in this case. Well, that's right. I'd also consider my client's action is more than gratuitous, I consider them admirable. And here's the choice that the district court has left us with by dismissing our counterplant. I mean, they have to reintroduce the product, subject ourselves to damages to the degree that revolution thinks it's financially worthwhile to risk this pact to go to trial. Or give up our right to manufacture the bottom out of the eyewear. We say we have the right because we believe the pact was invalid on enforceable and non-infringed. The case was on the courthouse steps, and we were ready to go to trial. The pretrial order was filed, the jury instructions were filed, and we were ready to go. And unfortunately, judge materialities, what I have a lot of respect for. Ms. Red Super-Sac and Ms. Red The Covenant. Well, to be honest with you, I mean, I wouldn't fault them too much. It took listening to the oral argument community convinced. And that's the tough thing about opinions that say, based on representations in oral argument, we conclude. So don't fault them too much. I took quite a bit for me to come around on that point as well

. I'm not your honor. And I really believe we satisfy these standards of methamune. We have product on the market that wouldn't have been a lawsuit if we didn't. We can get the product back on the market within 60 days. This is not a complicated machine or a complicated process. We've got a part of some government approval. This is a pair of life lessons. Well, that's entirely the problem. Isn't it? We have a covenant on its face on the straight ahead. Listen to the oral argument for the district court. Let's find out if these are the documents that were entered into the record. So here, when your opponent says, I agree that they can be no damages. They have no action for past infringement. The question is a very interesting one. By the methamune goes so far as to get an advisory opinion. Where there's no infringement, you really have to make sure that it's squeezed into the record. So this is a frequent conversation in methamune. There has to be a real and present danger and issue that supports jurisdiction when there is no actual controversy on the highly likely future companies. Well, you're honorably there was a controversy. We had a chronic on the market

. The only thing that's preventing us from re-entry is the holding of our head. Think of this potential scenario. If the district court is right, we'd be introduced to a product enough to establish jurisdiction. They're still us. We take the product off the market and the abundance of costs like the first time we had every right to do it. Then we get a covenant because there's no damages. We won't try to collect damages for the five frames that you sold. And the district court says, okay, case dismissed. We're on a merry go round and we can't get off. We've got a very corrupt of the tactics in the relationships. But the question is, at what stage does that put us under our control? You're at that stage, honor, because what MetaWing says is the patent can't have to take some affirmative steps to these to be defend. There has to be conflict in positions. There are. Revolution says that we infringe. This patent, the products that are subject to the government. We say we don't. We say the patent is not good. We say it's a valid, we say it's under force. That's enough. We can be, we really have to reintroduce the product tomorrow and soon again just so they can dismiss the case again

. Drowing the lines, certainly if you didn't have this history, but just had intention and interest in entering into the market with a product that more likely than not or at least arguably being free and short is closing up so that they could bring in action. We know that that isn't enough under management. So I really like to end the market with this product, I wish they may soon. Counsel, isn't it the case that the vice president of aspects said in his declaration that we intend to, and I understood it to be, and tell me if I'm wrong, reintroduce the same product that we were selling that they already sued us on? Yes, Your Honor. Is that it is that it's the accused product? Yes, Your Honor. So if you want to find the exact appendic sites, he said twice, A252, and A314. Now, bearing in mind, Your Honor said, yes Your Honor, I'm sorry. If I remember your question, if I have it in mind, we're not talking about Your Honor's situation where we're saying, well, you may sometime down the road hypothetically want to design some bottom-up product. So as we really want to get into the market with this product, we've got thousands of living in the warehouse. We can go in, yes, in 30 to 60 days. That would be enough for our refrigerant. Absolutely. You haven't sold any? We have sold any. That's why the local russians started. You are a tsunami, if you all predict possible, pastime, the plane meeting, whatever else from the region to the covenant, as far as pastime, which was a concern. That's behind. Now, the question is, if, in fact, you have a very strong interest in capability of entering the market with an infringing product, then you are do you glad to see that? I'm familiar with you. Yes, considering all the facts and circumstances of this case, which include the nature of the covenant, which include the fact that they soon..

. That wasn't the hypothetical sort of stride us without history. Okay, but that's history. Under those specific facts that you gave, had nothing else, yes, the resort of refrigerant. That's really enough. Yes. A strong interest in entering the market with an infringing product, with a... With a... With a product that already has been more of an... Yes. See, your strong interest, like the medical you're on are. But I've tried to understand the qualifications. I've really tried to understand the polls of this issue. You're saying it has to be something that you had on the market and pulled off, and now I want to come back with. Those are

... Those are hypothetical three. Those are these facts. I'm not saying that in every case that just a strong interest and nothing else would give you jurisdiction. I'm talking about this case. A strong interest where you've never made the product where you have no plans, where you have... That would be the situation in Super-Sex, where the defendant said, well wait a minute. That was before I had a new... I tried to understand how... We've no better than made by the changes. Try to understand what..

. Whatever changes it may. In fact, I gathered from what you keep trying to tell me, except I keep interrupting. I think it is that on the particular facts of this case, it's easier than if the facts were a little bit less. In this issue under the facts of this case, and your honor, Meta Moon says we have to consider all the facts and circumstances of the particular case. I don't think we can establish many of the right line rules. I think I have one question in front of me. I just want to make sure I understand the covenant that we're discussing here in this issue and the form of the basis for the district court decision. Am I correct in understanding that it's reflected at 843 of the appendix in Mr. Trojan's email to you? Is that the essence of the covenant that begins dear Mr. Nicodemus? Yes, that's from Mr. Dang to me. Oh, I'm sorry. It's always Mr. Dang with the Trojan law, this is. So, based upon any activities under a product made, used or sold on or before, the dismissal of the transaction. So, in other words, I just want to understand as a make sure I'm in the correct place in the record. That is the document where the covenant, the form of the basis for the district court decision is spent. That's it. There's no other document or agreement or anything like that. No, and it's clear that what revolution meant by this was you can market the products that you had on the market and pull off and the loss started, like I said, the judge more

. We wouldn't be here, but that is what it means. They want a self-imposed injunction on us, and it's clear from the 5.06 coverage that's what they meant. They originally agreed to dismiss the case if we wouldn't re-enter the market with the bottom amount of items. That's it, that's it. They don't want some market. We want to be on the market. The only thing that's preventing us is this path. It's a matter of metamune, the district court should let our claim to go to trial. Okay, let's improve this out. Mr. Pregnant, please the court and the Justice Court and the Council for this. So tell me what the covenant intends. The covenant does not cover future introduction of the same product. So it's clear that this case does differ from super-sac in that way. Now that we know what's on that oral argument take for her, those are available just so you know to the public. You can call her Quick Stop and they send you copies. So Mr. T right, we're saying that if Mr. Dickens' client introduces the product that was alleged previously in French in the future, you can, you're planning to sue her in French

. That's correct. Possibly on other, a different patent, I may not assume on the same patent. In speculation we have a whole portfolio of buy-mounted patents. And so it may indeed be that for the next case, it will not involve this particular patent. And why in the world to get out from under this don't we just make a covenant and say we want to on the patent an issue, this to any future, any product that was the same one that was subject to the previous suit. It seems like that gets you up under super-sac. If you've got other patents you can sue them on, it doesn't take those all on the table. If they weren't the subject of this litigation. That's correct, but without the benefit of that oral argument. We don't have to be late for standing here right now. But then I would need to review the claims in all the patent portfolio to make that kind of determination to tell the jury. And so they are doing that with this correct and with this history that this is something that I didn't even want to open it or to. That the district court didn't think so. But there is, so it isn't quite the same as just being a stranger to the issue. That's why I think it's important to read exactly what is in the paper in declaration. He says, quote, and this is from A81 of the appendix, 81, 81. Aspects has the capability to introduce the accused bottom mounted eyewear into the marketplace within a few months. Based upon my knowledge in regards to the manufacturer's capability and the lead time required to produce bottom mounted eyewear aspects to be in the marketplace within 60 days. From a business standpoint, it would certainly be profitable to aspects to reintroduce its bottom mounted eyewear into the marketplace. So it says he has the capability and it would be profitable

. But it doesn't go into saying he has concrete plans to do so. Okay, hold on, I can't keep track. There seems like there are three or four different declarations by this person. What about the one on A252? In that one, the same gentleman said, Aspect is ready to resume the sale of the accused eyewear. This seems much more concrete than the one you're pointing at, which is why I'm directly into it. Aspects is ready to resume the sale of the accused eyewear as soon as favorable decisions rendered in depending action. Aspects has always intended and intends to resume activity in this market. That one is more comfortable. Certainly the one you pointed to opens the door to a little more speculative argument. You can speculate it in the not saying that we do it. We're saying that they possibly have a capacity to it. But the one on A252 seems a lot more concrete. It seems like there is an intent to do it as soon as this decision is reached. Right, we were reading in conjunction. Certainly that says that he intends, that one does say he intends to do it. I would have to go back and look at that particular declaration in response to the order of clarification. It seems it was in support of his opposition to the motion to dismiss. I would say that we really want to do this. I'm there for a little separate. Correct, but I don't think that it still represents a concrete indication of it taking in. Usually when you're going to say what you're doing, you go and say, okay, these are the concrete plans that will make it. We have come up with designs. We have such and such manufacturers that we're talking to. We've determined what the pricing is. We've gone through the entire process. There's something really introducing these exact same frames that they were selling when we sold them. That's what they're saying to A252 and A22. Do we really need all that? We really know that in time. They already had them on the market just at the beginning of this lawsuit. There's no doubt that this time, and it says there's no doubt manufacturing. All those things are in dispute when they're reintroducing the identity. You certainly raised some issue that suggested they no longer have capacity to manufacture them or something that would be different. But it's reintroducing these exact same things that they said they were ready to do it. They have them on the market within 60 days. Doesn't that sort of negate the need for the kind of stuff you're describing, which it seems to be is absolutely correct under the law when you're talking about introducing a new product? Well, then that would raise the specter that any large company in particular specializes in a particular product. There are always going to have that capability to manufacture the competitor's product. I don't think there's any example. Me, you could even say that in first things as complicated as pharmaceuticals. It's a pharmaceutical company. No sound of manufacture pharmaceuticals

. Usually when you're going to say what you're doing, you go and say, okay, these are the concrete plans that will make it. We have come up with designs. We have such and such manufacturers that we're talking to. We've determined what the pricing is. We've gone through the entire process. There's something really introducing these exact same frames that they were selling when we sold them. That's what they're saying to A252 and A22. Do we really need all that? We really know that in time. They already had them on the market just at the beginning of this lawsuit. There's no doubt that this time, and it says there's no doubt manufacturing. All those things are in dispute when they're reintroducing the identity. You certainly raised some issue that suggested they no longer have capacity to manufacture them or something that would be different. But it's reintroducing these exact same things that they said they were ready to do it. They have them on the market within 60 days. Doesn't that sort of negate the need for the kind of stuff you're describing, which it seems to be is absolutely correct under the law when you're talking about introducing a new product? Well, then that would raise the specter that any large company in particular specializes in a particular product. There are always going to have that capability to manufacture the competitor's product. I don't think there's any example. Me, you could even say that in first things as complicated as pharmaceuticals. It's a pharmaceutical company. No sound of manufacture pharmaceuticals. So you're just the fact that we draw that line as a legal matter for it's clearly? Well, I guess that is a practical matter. We know that aspect cells are not an outward. That's what it has its pattern and sound. And the idea that, and the sport is quite experienced with aspects is top-mounted, I would wear it as an, in some of the cases before it can have aspects. And so that's what it really sells. But it must have a bottom out because you do them on it. That's correct, and the reason why in the case went away is because they sold just enough to precipitate the lawsuit and then stop selling. The sales were insignificant. And so just the original lawsuit was filed believing that when in fact all they were trying to do was precipitate the lawsuit by selling some and just enough to get the lawsuit going and then what happened then they stopped immediately. So they've been wanting to attack. Because their strategy is to attack the patents of the revolution and to consider competitive. They had the means of doing that, of looking through a re-examination. The thing for strategy is to compete in the bottom out that I wear market. Why would they, well, I don't think that their strategy, they sold the products and they're telling us they intend to sell it. And again, they want to compete. Why did that happen? I disagree with the characterization of the bottom out. I'm just stating the product. There's magnetic eyeware market, in which aspects is the major player. And they have their patents on top. They believe outside of a real dispute that our patents are invalid, they can offer re-examination of these patents

. So you're just the fact that we draw that line as a legal matter for it's clearly? Well, I guess that is a practical matter. We know that aspect cells are not an outward. That's what it has its pattern and sound. And the idea that, and the sport is quite experienced with aspects is top-mounted, I would wear it as an, in some of the cases before it can have aspects. And so that's what it really sells. But it must have a bottom out because you do them on it. That's correct, and the reason why in the case went away is because they sold just enough to precipitate the lawsuit and then stop selling. The sales were insignificant. And so just the original lawsuit was filed believing that when in fact all they were trying to do was precipitate the lawsuit by selling some and just enough to get the lawsuit going and then what happened then they stopped immediately. So they've been wanting to attack. Because their strategy is to attack the patents of the revolution and to consider competitive. They had the means of doing that, of looking through a re-examination. The thing for strategy is to compete in the bottom out that I wear market. Why would they, well, I don't think that their strategy, they sold the products and they're telling us they intend to sell it. And again, they want to compete. Why did that happen? I disagree with the characterization of the bottom out. I'm just stating the product. There's magnetic eyeware market, in which aspects is the major player. And they have their patents on top. They believe outside of a real dispute that our patents are invalid, they can offer re-examination of these patents. And that would be the administrative evidence available to them outside of the lawsuit. But certainly, if they were to begin selling bottom out of the same way that they did before, just to precipitate the lawsuit, I think that we would be very cautious about whether we would be drawn into that again, just for the sake of them to try to create art with each other's distinction. And so once again, there's a, you know, whether, I think in this process of whether they would definitely be a controversy, whether we would, see what I'm saying about it, is an open question. And so it still takes into consideration whether there's a dispute between the patents. Well, we have said we're not going to sue on anything in the past, and we're completely waving that. We did not say we would automatically sue in the future. It's still this speculative advisor opinion. As Mr. Schoen, I'm not sure. He's thinking of Ben and me. It says basically the question in which case is whether the facts of which, under all the circumstances, show that there's a substantial controversy, et cetera, and it goes on from there. I'm sure you're familiar with that. Now you've indicated here today in response to a more specific question, sort of a motivation for aspects to sue to get this thing going. So they can attack your patents, your compliance patents, and maybe Mr. McGadin would disagree with that motivation. But then in that, the point of it is that when looking at the circumstances of this case, as many of you tell us, we have to, it does seem that there's a history here of conflict. And that seems to be significant factor, whatever the motivation is. I mean, the bottom line is, as Judge Moore suggested, they do want to get on the market and compete in self. Now you may disagree with the strategies to not get there. But it does seem that the circumstances, in this case, suggest conflict and real dispute between parties

. And that would be the administrative evidence available to them outside of the lawsuit. But certainly, if they were to begin selling bottom out of the same way that they did before, just to precipitate the lawsuit, I think that we would be very cautious about whether we would be drawn into that again, just for the sake of them to try to create art with each other's distinction. And so once again, there's a, you know, whether, I think in this process of whether they would definitely be a controversy, whether we would, see what I'm saying about it, is an open question. And so it still takes into consideration whether there's a dispute between the patents. Well, we have said we're not going to sue on anything in the past, and we're completely waving that. We did not say we would automatically sue in the future. It's still this speculative advisor opinion. As Mr. Schoen, I'm not sure. He's thinking of Ben and me. It says basically the question in which case is whether the facts of which, under all the circumstances, show that there's a substantial controversy, et cetera, and it goes on from there. I'm sure you're familiar with that. Now you've indicated here today in response to a more specific question, sort of a motivation for aspects to sue to get this thing going. So they can attack your patents, your compliance patents, and maybe Mr. McGadin would disagree with that motivation. But then in that, the point of it is that when looking at the circumstances of this case, as many of you tell us, we have to, it does seem that there's a history here of conflict. And that seems to be significant factor, whatever the motivation is. I mean, the bottom line is, as Judge Moore suggested, they do want to get on the market and compete in self. Now you may disagree with the strategies to not get there. But it does seem that the circumstances, in this case, suggest conflict and real dispute between parties. We're not in a clean slate. We're not in a clean slate, but with respect to our revolutions, patents. With respect to this happiness, this is the one lawsuit. So, yeah, that's a lawsuit to crack. I mean, they have a product, so sue them. You fell into the franchise. That's fair. Now, somebody, and they want to put the same product out of the market. So, I mean, that does suggest overall circumstances, opposing interest, that it seemed to bring you within a somewhat generous language of metamine. Well, it seems aspect. Metamine still wants to see some sort of concrete stacks that's going to precipitate pregnant or three. So, obviously, there's many, I think, if you look at any industry, the major players are frequently sitting on the table, sitting on each other and patents all the time. If you get back to the criteria, there's a litigious history between parties. That seems to suggest that article three is going to be opened up. Well, but, no, I understand that the argument you make with here, there seems to be a very particular focus to history given on particular products and particular patents. Now, you've said that if they're reproducing, they're not sued on that patent. But that creates the whole particular history. That's true. But that does create the whole speculation about whether, in fact, if they made the product, we would be having the same case. Let me ask you this, if we were to disagree with the district court, there would still have to be a determination of the traditional declaratory judgment factor

. We're not in a clean slate. We're not in a clean slate, but with respect to our revolutions, patents. With respect to this happiness, this is the one lawsuit. So, yeah, that's a lawsuit to crack. I mean, they have a product, so sue them. You fell into the franchise. That's fair. Now, somebody, and they want to put the same product out of the market. So, I mean, that does suggest overall circumstances, opposing interest, that it seemed to bring you within a somewhat generous language of metamine. Well, it seems aspect. Metamine still wants to see some sort of concrete stacks that's going to precipitate pregnant or three. So, obviously, there's many, I think, if you look at any industry, the major players are frequently sitting on the table, sitting on each other and patents all the time. If you get back to the criteria, there's a litigious history between parties. That seems to suggest that article three is going to be opened up. Well, but, no, I understand that the argument you make with here, there seems to be a very particular focus to history given on particular products and particular patents. Now, you've said that if they're reproducing, they're not sued on that patent. But that creates the whole particular history. That's true. But that does create the whole speculation about whether, in fact, if they made the product, we would be having the same case. Let me ask you this, if we were to disagree with the district court, there would still have to be a determination of the traditional declaratory judgment factor. That's true. That's true. The court would still have to, it would still be in a position to decide whether or not to exercise discretion to hear the case. So, well, but I think the court has already exercised its discretion to dismiss the counter-induced. And so, that's that as you quote properly point out, that's not a matter of discretion as a thing with these discretion perspective. That question is what if we basically rule on a kind of jurisdictional basis, in case you're a coniferous person, will you rule the jurisdictional basis for our claims against taskwats? And then, had the discretion to dismiss the counter-induced, which you never see it still. And so, these terms move. Correct. And considering it may be that when you look at someone's concrete claim, they say, well, you know, we think that we may bring back the same product. But it's still, to be a controversy, it has to be a fight of both sides. And the court is suggesting we'll be on the way for me to eliminate the fight on our side as to have this covenant going into the future. Carry that forward as the future. People who were there to the district court that their covenant was that your covenant didn't include them remarketing the exact same product. You were not in that covenant promising not to sue them if they remarked the same product. Until you came today, I wasn't sure. And that's why I'm wondering where those assertions made to the district court was it clear? Because in my clue to the keeping of me today, I'd say, well, this covenant, we intended it to cover the products that had been the subject of the lawsuit, meaning that we will not sue them if they reintroduce those same products. We're not saying we won't sue them if they reintroduce different products, but those same products are free and clear. And if you come into me today and said that is exactly what this language meant, I probably would've said, OK, it wasn't clear to me, but now I understand. And if you think it was clear to the district court, I'm wondering about how he exercised his discretion. When he exercised his discretion to be really understanding what he were agreeing not to do, because I did

. That's true. That's true. The court would still have to, it would still be in a position to decide whether or not to exercise discretion to hear the case. So, well, but I think the court has already exercised its discretion to dismiss the counter-induced. And so, that's that as you quote properly point out, that's not a matter of discretion as a thing with these discretion perspective. That question is what if we basically rule on a kind of jurisdictional basis, in case you're a coniferous person, will you rule the jurisdictional basis for our claims against taskwats? And then, had the discretion to dismiss the counter-induced, which you never see it still. And so, these terms move. Correct. And considering it may be that when you look at someone's concrete claim, they say, well, you know, we think that we may bring back the same product. But it's still, to be a controversy, it has to be a fight of both sides. And the court is suggesting we'll be on the way for me to eliminate the fight on our side as to have this covenant going into the future. Carry that forward as the future. People who were there to the district court that their covenant was that your covenant didn't include them remarketing the exact same product. You were not in that covenant promising not to sue them if they remarked the same product. Until you came today, I wasn't sure. And that's why I'm wondering where those assertions made to the district court was it clear? Because in my clue to the keeping of me today, I'd say, well, this covenant, we intended it to cover the products that had been the subject of the lawsuit, meaning that we will not sue them if they reintroduce those same products. We're not saying we won't sue them if they reintroduce different products, but those same products are free and clear. And if you come into me today and said that is exactly what this language meant, I probably would've said, OK, it wasn't clear to me, but now I understand. And if you think it was clear to the district court, I'm wondering about how he exercised his discretion. When he exercised his discretion to be really understanding what he were agreeing not to do, because I did. I think it hit 23 and 24 of our candidates that kind of explained before the briefing district court that that was our intent. And so what I was getting at now is that since we're not working on it in the means of the... Well, we're finishing sentence. What we're getting at now is even though we didn't covenant not to sue the future, that doesn't mean that we would sue on the same path as the future. And in order for there to be a case in controversy, perhaps we can dispute on both sides of the case. And so it's still speculative as to what we would do in the future, because we do have this path. And so that's part of what should be considered in the totality of the circumstances, what actually is plainly taking the future. And it's not automatic that we would sue on this path in the future, since we have some other options that we might consider. Thank you, Mr. Judge. Mr. Ducan, could you give me your honor? Just a couple of points. First, I'd like to address counsel, so I'm arguing about our motivations. We didn't notice that this path existed until we were sued. The product was on the market, and they sued us with a pattern of warning letter, no cease and desist letter, zero. So..

. I think it hit 23 and 24 of our candidates that kind of explained before the briefing district court that that was our intent. And so what I was getting at now is that since we're not working on it in the means of the... Well, we're finishing sentence. What we're getting at now is even though we didn't covenant not to sue the future, that doesn't mean that we would sue on the same path as the future. And in order for there to be a case in controversy, perhaps we can dispute on both sides of the case. And so it's still speculative as to what we would do in the future, because we do have this path. And so that's part of what should be considered in the totality of the circumstances, what actually is plainly taking the future. And it's not automatic that we would sue on this path in the future, since we have some other options that we might consider. Thank you, Mr. Judge. Mr. Ducan, could you give me your honor? Just a couple of points. First, I'd like to address counsel, so I'm arguing about our motivations. We didn't notice that this path existed until we were sued. The product was on the market, and they sued us with a pattern of warning letter, no cease and desist letter, zero. So... Why does that work? Because revolutions... Because revolutions, counsel says that we went on the market trying to create an infringement suit. Well, if you don't know what the path makes, this is how can we create an infringement suit. Do you have your asses to make findings? No, we're not. But we have just responded to this. Because it's on the Pyroagymist book. And I'd brief this, and they have not disputed it until now. This issue of... Yes, to pick up on a question, I asked him this tutorial. If one were to agree with you in this matter, okay? And say that there is an article three, case or controversy under the Metagun and so on. Okay? What would be the next step? The next step? The district court for what? For a trial. For a trial. We were on the lookout steps. Well, they say we have infringed the path, so there's an infringement claim. If they're saying that there's no infringement claim anymore, then it's just an echo of a comma and a bullet. But if they maintain that and go back, they could sue one infringement

. Why does that work? Because revolutions... Because revolutions, counsel says that we went on the market trying to create an infringement suit. Well, if you don't know what the path makes, this is how can we create an infringement suit. Do you have your asses to make findings? No, we're not. But we have just responded to this. Because it's on the Pyroagymist book. And I'd brief this, and they have not disputed it until now. This issue of... Yes, to pick up on a question, I asked him this tutorial. If one were to agree with you in this matter, okay? And say that there is an article three, case or controversy under the Metagun and so on. Okay? What would be the next step? The next step? The district court for what? For a trial. For a trial. We were on the lookout steps. Well, they say we have infringed the path, so there's an infringement claim. If they're saying that there's no infringement claim anymore, then it's just an echo of a comma and a bullet. But if they maintain that and go back, they could sue one infringement. Or they could bring an infringement claim. They're infringement claim that was dismissed without prejudice. You were instated, and an echo of accountability claims be there. That's correct. All the pre-trial papers that were in the court's hands and we were ready to pick a jury. It had infringement in there, had all our defenses in there. This issue about whether we may or may not sue on this patent, maybe on some other patent, that's the problem. That perpetuates the problem and doesn't resolve it. We're sitting there saying, if we introduce this product, what's going to happen to us? This patent, the ninth or theteenth, is the granddaddy patent. All patents flow from that. If this patent goes down, do you go an echo of a comma? They all go down. This is their broadest patent. They never said in their briefs that they wouldn't sue us. They're saying, well, we may or may not. That just hurts us more. That doesn't give us any comfort. That doesn't result in controversy. What they really want us to do on this issue of whether we engage in any concrete activities, we don't have to call the manufacturers. They send us 200 samples so they can sit in our warehouse. We don't have to say here, rather, we shouldn't

. Or they could bring an infringement claim. They're infringement claim that was dismissed without prejudice. You were instated, and an echo of accountability claims be there. That's correct. All the pre-trial papers that were in the court's hands and we were ready to pick a jury. It had infringement in there, had all our defenses in there. This issue about whether we may or may not sue on this patent, maybe on some other patent, that's the problem. That perpetuates the problem and doesn't resolve it. We're sitting there saying, if we introduce this product, what's going to happen to us? This patent, the ninth or theteenth, is the granddaddy patent. All patents flow from that. If this patent goes down, do you go an echo of a comma? They all go down. This is their broadest patent. They never said in their briefs that they wouldn't sue us. They're saying, well, we may or may not. That just hurts us more. That doesn't give us any comfort. That doesn't result in controversy. What they really want us to do on this issue of whether we engage in any concrete activities, we don't have to call the manufacturers. They send us 200 samples so they can sit in our warehouse. We don't have to say here, rather, we shouldn't. Here's our blueprint for this product. We work on the market. It's the same product. The only way this controversy is going to be resolved is if we go to try and lose counterpoints. Thank you. Thank you. Thank you very much. This is a current case. It's a different case of issue.

Council, is there any understanding under the covenant that the patentee has the right to sue you if you reintroduce the exact same product that he had sued you on this time? Absolutely. It seems to me that's the critical distinction feature in this case between SuperSAC and this one, isn't it? Agreed, because in SuperSAC, you're on the covenant allowed, allowed be defended to continue manufacturing the past with current products. The issue in SuperSAC was, the defendant said, hey, wait a minute, what if I some time in the future decide to introduce some new products, the covenant doesn't cover that? And this product... The covenant in SuperSAC is somewhat of a moving target, which is why I think there's a little bit of confusion here in this case, because if you noticed one of the critical features in SuperSAC, which isn't very helpful if you don't have access to the oral argument, is that the court said, based on the covenant and representations about the covenant made to an oral argument, we find that this particular covenant is one in which they are agreeing not to sue into the future on the product that had been the subject of this sue. And the key thing is that all came up in oral argument. The covenant itself is more ambiguous and actually since it wasn't so much of a written document rather than attorney statements and briefs and representations orally, it became hard. But did you have a chance to listen to the SuperSAC oral argument? I'm assuming you're going to tell me now. I confess your honor, I did not, but it was clear to me in reading the decision that the upshot of the SuperSAC covenant, whether it was a writing or a combination of writing or a argument, was that the defendant still had the ability to stay on the market because what the court said was under the terms of the covenant as the construed based on whatever needed to be in the instrument, the defendant didn't have to worry about being sued in the future on the product. It was supposed to be here from the oral argument and I actually transferred it because you can only now find it on a cassette tape. So if you don't have a tape deck during trouble, it's not on the internet like our normal ones now. And it's crystal clear from that SuperSAC oral argument that you're exactly right that that attorneys wore up and down and said, I'd be a stop and you know, in all kinds of trouble that any of the products that were the subject of this lawsuit, any of the products which they were making using or selling prior to this state and any of the products that were subject to this lawsuit are now forever free clear. That's correct. So it seems like it's a, if you're right and he doesn't stand up and tell me we're making the same assertion in our covenant, then it seems a pretty critical difference to make your case. Well, if Council makes that assertion, then we think that we can be on the market and I'll turn around and get on the earlier train, you're on our foot. Both in the district court and in my papers here, I believe I mentioned several times that this covenant is no covenant because it includes market entry. The day we introduce the product, the subject to the covenant, we will be sued. Revolution never dispute with that. They never said, oh no, you could make these products. And that's why you honor our state. It also seems you're getting insured out of the state. Your client did something that I think was actually rather too much and entirely appropriate, which is at a concern toward infringement potential wilderness, where it's controlled the product itself in the market. Well, if you left the products on under this covenant, you'd now be able to keep making them, right? But the fact that you pulled them on seems to be almost too instant in this case. Well, that's right. I'd also consider my client's action is more than gratuitous, I consider them admirable. And here's the choice that the district court has left us with by dismissing our counterplant. I mean, they have to reintroduce the product, subject ourselves to damages to the degree that revolution thinks it's financially worthwhile to risk this pact to go to trial. Or give up our right to manufacture the bottom out of the eyewear. We say we have the right because we believe the pact was invalid on enforceable and non-infringed. The case was on the courthouse steps, and we were ready to go to trial. The pretrial order was filed, the jury instructions were filed, and we were ready to go. And unfortunately, judge materialities, what I have a lot of respect for. Ms. Red Super-Sac and Ms. Red The Covenant. Well, to be honest with you, I mean, I wouldn't fault them too much. It took listening to the oral argument community convinced. And that's the tough thing about opinions that say, based on representations in oral argument, we conclude. So don't fault them too much. I took quite a bit for me to come around on that point as well. I'm not your honor. And I really believe we satisfy these standards of methamune. We have product on the market that wouldn't have been a lawsuit if we didn't. We can get the product back on the market within 60 days. This is not a complicated machine or a complicated process. We've got a part of some government approval. This is a pair of life lessons. Well, that's entirely the problem. Isn't it? We have a covenant on its face on the straight ahead. Listen to the oral argument for the district court. Let's find out if these are the documents that were entered into the record. So here, when your opponent says, I agree that they can be no damages. They have no action for past infringement. The question is a very interesting one. By the methamune goes so far as to get an advisory opinion. Where there's no infringement, you really have to make sure that it's squeezed into the record. So this is a frequent conversation in methamune. There has to be a real and present danger and issue that supports jurisdiction when there is no actual controversy on the highly likely future companies. Well, you're honorably there was a controversy. We had a chronic on the market. The only thing that's preventing us from re-entry is the holding of our head. Think of this potential scenario. If the district court is right, we'd be introduced to a product enough to establish jurisdiction. They're still us. We take the product off the market and the abundance of costs like the first time we had every right to do it. Then we get a covenant because there's no damages. We won't try to collect damages for the five frames that you sold. And the district court says, okay, case dismissed. We're on a merry go round and we can't get off. We've got a very corrupt of the tactics in the relationships. But the question is, at what stage does that put us under our control? You're at that stage, honor, because what MetaWing says is the patent can't have to take some affirmative steps to these to be defend. There has to be conflict in positions. There are. Revolution says that we infringe. This patent, the products that are subject to the government. We say we don't. We say the patent is not good. We say it's a valid, we say it's under force. That's enough. We can be, we really have to reintroduce the product tomorrow and soon again just so they can dismiss the case again. Drowing the lines, certainly if you didn't have this history, but just had intention and interest in entering into the market with a product that more likely than not or at least arguably being free and short is closing up so that they could bring in action. We know that that isn't enough under management. So I really like to end the market with this product, I wish they may soon. Counsel, isn't it the case that the vice president of aspects said in his declaration that we intend to, and I understood it to be, and tell me if I'm wrong, reintroduce the same product that we were selling that they already sued us on? Yes, Your Honor. Is that it is that it's the accused product? Yes, Your Honor. So if you want to find the exact appendic sites, he said twice, A252, and A314. Now, bearing in mind, Your Honor said, yes Your Honor, I'm sorry. If I remember your question, if I have it in mind, we're not talking about Your Honor's situation where we're saying, well, you may sometime down the road hypothetically want to design some bottom-up product. So as we really want to get into the market with this product, we've got thousands of living in the warehouse. We can go in, yes, in 30 to 60 days. That would be enough for our refrigerant. Absolutely. You haven't sold any? We have sold any. That's why the local russians started. You are a tsunami, if you all predict possible, pastime, the plane meeting, whatever else from the region to the covenant, as far as pastime, which was a concern. That's behind. Now, the question is, if, in fact, you have a very strong interest in capability of entering the market with an infringing product, then you are do you glad to see that? I'm familiar with you. Yes, considering all the facts and circumstances of this case, which include the nature of the covenant, which include the fact that they soon... That wasn't the hypothetical sort of stride us without history. Okay, but that's history. Under those specific facts that you gave, had nothing else, yes, the resort of refrigerant. That's really enough. Yes. A strong interest in entering the market with an infringing product, with a... With a... With a product that already has been more of an... Yes. See, your strong interest, like the medical you're on are. But I've tried to understand the qualifications. I've really tried to understand the polls of this issue. You're saying it has to be something that you had on the market and pulled off, and now I want to come back with. Those are... Those are hypothetical three. Those are these facts. I'm not saying that in every case that just a strong interest and nothing else would give you jurisdiction. I'm talking about this case. A strong interest where you've never made the product where you have no plans, where you have... That would be the situation in Super-Sex, where the defendant said, well wait a minute. That was before I had a new... I tried to understand how... We've no better than made by the changes. Try to understand what... Whatever changes it may. In fact, I gathered from what you keep trying to tell me, except I keep interrupting. I think it is that on the particular facts of this case, it's easier than if the facts were a little bit less. In this issue under the facts of this case, and your honor, Meta Moon says we have to consider all the facts and circumstances of the particular case. I don't think we can establish many of the right line rules. I think I have one question in front of me. I just want to make sure I understand the covenant that we're discussing here in this issue and the form of the basis for the district court decision. Am I correct in understanding that it's reflected at 843 of the appendix in Mr. Trojan's email to you? Is that the essence of the covenant that begins dear Mr. Nicodemus? Yes, that's from Mr. Dang to me. Oh, I'm sorry. It's always Mr. Dang with the Trojan law, this is. So, based upon any activities under a product made, used or sold on or before, the dismissal of the transaction. So, in other words, I just want to understand as a make sure I'm in the correct place in the record. That is the document where the covenant, the form of the basis for the district court decision is spent. That's it. There's no other document or agreement or anything like that. No, and it's clear that what revolution meant by this was you can market the products that you had on the market and pull off and the loss started, like I said, the judge more. We wouldn't be here, but that is what it means. They want a self-imposed injunction on us, and it's clear from the 5.06 coverage that's what they meant. They originally agreed to dismiss the case if we wouldn't re-enter the market with the bottom amount of items. That's it, that's it. They don't want some market. We want to be on the market. The only thing that's preventing us is this path. It's a matter of metamune, the district court should let our claim to go to trial. Okay, let's improve this out. Mr. Pregnant, please the court and the Justice Court and the Council for this. So tell me what the covenant intends. The covenant does not cover future introduction of the same product. So it's clear that this case does differ from super-sac in that way. Now that we know what's on that oral argument take for her, those are available just so you know to the public. You can call her Quick Stop and they send you copies. So Mr. T right, we're saying that if Mr. Dickens' client introduces the product that was alleged previously in French in the future, you can, you're planning to sue her in French. That's correct. Possibly on other, a different patent, I may not assume on the same patent. In speculation we have a whole portfolio of buy-mounted patents. And so it may indeed be that for the next case, it will not involve this particular patent. And why in the world to get out from under this don't we just make a covenant and say we want to on the patent an issue, this to any future, any product that was the same one that was subject to the previous suit. It seems like that gets you up under super-sac. If you've got other patents you can sue them on, it doesn't take those all on the table. If they weren't the subject of this litigation. That's correct, but without the benefit of that oral argument. We don't have to be late for standing here right now. But then I would need to review the claims in all the patent portfolio to make that kind of determination to tell the jury. And so they are doing that with this correct and with this history that this is something that I didn't even want to open it or to. That the district court didn't think so. But there is, so it isn't quite the same as just being a stranger to the issue. That's why I think it's important to read exactly what is in the paper in declaration. He says, quote, and this is from A81 of the appendix, 81, 81. Aspects has the capability to introduce the accused bottom mounted eyewear into the marketplace within a few months. Based upon my knowledge in regards to the manufacturer's capability and the lead time required to produce bottom mounted eyewear aspects to be in the marketplace within 60 days. From a business standpoint, it would certainly be profitable to aspects to reintroduce its bottom mounted eyewear into the marketplace. So it says he has the capability and it would be profitable. But it doesn't go into saying he has concrete plans to do so. Okay, hold on, I can't keep track. There seems like there are three or four different declarations by this person. What about the one on A252? In that one, the same gentleman said, Aspect is ready to resume the sale of the accused eyewear. This seems much more concrete than the one you're pointing at, which is why I'm directly into it. Aspects is ready to resume the sale of the accused eyewear as soon as favorable decisions rendered in depending action. Aspects has always intended and intends to resume activity in this market. That one is more comfortable. Certainly the one you pointed to opens the door to a little more speculative argument. You can speculate it in the not saying that we do it. We're saying that they possibly have a capacity to it. But the one on A252 seems a lot more concrete. It seems like there is an intent to do it as soon as this decision is reached. Right, we were reading in conjunction. Certainly that says that he intends, that one does say he intends to do it. I would have to go back and look at that particular declaration in response to the order of clarification. It seems it was in support of his opposition to the motion to dismiss. I would say that we really want to do this. I'm there for a little separate. Correct, but I don't think that it still represents a concrete indication of it taking in. Usually when you're going to say what you're doing, you go and say, okay, these are the concrete plans that will make it. We have come up with designs. We have such and such manufacturers that we're talking to. We've determined what the pricing is. We've gone through the entire process. There's something really introducing these exact same frames that they were selling when we sold them. That's what they're saying to A252 and A22. Do we really need all that? We really know that in time. They already had them on the market just at the beginning of this lawsuit. There's no doubt that this time, and it says there's no doubt manufacturing. All those things are in dispute when they're reintroducing the identity. You certainly raised some issue that suggested they no longer have capacity to manufacture them or something that would be different. But it's reintroducing these exact same things that they said they were ready to do it. They have them on the market within 60 days. Doesn't that sort of negate the need for the kind of stuff you're describing, which it seems to be is absolutely correct under the law when you're talking about introducing a new product? Well, then that would raise the specter that any large company in particular specializes in a particular product. There are always going to have that capability to manufacture the competitor's product. I don't think there's any example. Me, you could even say that in first things as complicated as pharmaceuticals. It's a pharmaceutical company. No sound of manufacture pharmaceuticals. So you're just the fact that we draw that line as a legal matter for it's clearly? Well, I guess that is a practical matter. We know that aspect cells are not an outward. That's what it has its pattern and sound. And the idea that, and the sport is quite experienced with aspects is top-mounted, I would wear it as an, in some of the cases before it can have aspects. And so that's what it really sells. But it must have a bottom out because you do them on it. That's correct, and the reason why in the case went away is because they sold just enough to precipitate the lawsuit and then stop selling. The sales were insignificant. And so just the original lawsuit was filed believing that when in fact all they were trying to do was precipitate the lawsuit by selling some and just enough to get the lawsuit going and then what happened then they stopped immediately. So they've been wanting to attack. Because their strategy is to attack the patents of the revolution and to consider competitive. They had the means of doing that, of looking through a re-examination. The thing for strategy is to compete in the bottom out that I wear market. Why would they, well, I don't think that their strategy, they sold the products and they're telling us they intend to sell it. And again, they want to compete. Why did that happen? I disagree with the characterization of the bottom out. I'm just stating the product. There's magnetic eyeware market, in which aspects is the major player. And they have their patents on top. They believe outside of a real dispute that our patents are invalid, they can offer re-examination of these patents. And that would be the administrative evidence available to them outside of the lawsuit. But certainly, if they were to begin selling bottom out of the same way that they did before, just to precipitate the lawsuit, I think that we would be very cautious about whether we would be drawn into that again, just for the sake of them to try to create art with each other's distinction. And so once again, there's a, you know, whether, I think in this process of whether they would definitely be a controversy, whether we would, see what I'm saying about it, is an open question. And so it still takes into consideration whether there's a dispute between the patents. Well, we have said we're not going to sue on anything in the past, and we're completely waving that. We did not say we would automatically sue in the future. It's still this speculative advisor opinion. As Mr. Schoen, I'm not sure. He's thinking of Ben and me. It says basically the question in which case is whether the facts of which, under all the circumstances, show that there's a substantial controversy, et cetera, and it goes on from there. I'm sure you're familiar with that. Now you've indicated here today in response to a more specific question, sort of a motivation for aspects to sue to get this thing going. So they can attack your patents, your compliance patents, and maybe Mr. McGadin would disagree with that motivation. But then in that, the point of it is that when looking at the circumstances of this case, as many of you tell us, we have to, it does seem that there's a history here of conflict. And that seems to be significant factor, whatever the motivation is. I mean, the bottom line is, as Judge Moore suggested, they do want to get on the market and compete in self. Now you may disagree with the strategies to not get there. But it does seem that the circumstances, in this case, suggest conflict and real dispute between parties. We're not in a clean slate. We're not in a clean slate, but with respect to our revolutions, patents. With respect to this happiness, this is the one lawsuit. So, yeah, that's a lawsuit to crack. I mean, they have a product, so sue them. You fell into the franchise. That's fair. Now, somebody, and they want to put the same product out of the market. So, I mean, that does suggest overall circumstances, opposing interest, that it seemed to bring you within a somewhat generous language of metamine. Well, it seems aspect. Metamine still wants to see some sort of concrete stacks that's going to precipitate pregnant or three. So, obviously, there's many, I think, if you look at any industry, the major players are frequently sitting on the table, sitting on each other and patents all the time. If you get back to the criteria, there's a litigious history between parties. That seems to suggest that article three is going to be opened up. Well, but, no, I understand that the argument you make with here, there seems to be a very particular focus to history given on particular products and particular patents. Now, you've said that if they're reproducing, they're not sued on that patent. But that creates the whole particular history. That's true. But that does create the whole speculation about whether, in fact, if they made the product, we would be having the same case. Let me ask you this, if we were to disagree with the district court, there would still have to be a determination of the traditional declaratory judgment factor. That's true. That's true. The court would still have to, it would still be in a position to decide whether or not to exercise discretion to hear the case. So, well, but I think the court has already exercised its discretion to dismiss the counter-induced. And so, that's that as you quote properly point out, that's not a matter of discretion as a thing with these discretion perspective. That question is what if we basically rule on a kind of jurisdictional basis, in case you're a coniferous person, will you rule the jurisdictional basis for our claims against taskwats? And then, had the discretion to dismiss the counter-induced, which you never see it still. And so, these terms move. Correct. And considering it may be that when you look at someone's concrete claim, they say, well, you know, we think that we may bring back the same product. But it's still, to be a controversy, it has to be a fight of both sides. And the court is suggesting we'll be on the way for me to eliminate the fight on our side as to have this covenant going into the future. Carry that forward as the future. People who were there to the district court that their covenant was that your covenant didn't include them remarketing the exact same product. You were not in that covenant promising not to sue them if they remarked the same product. Until you came today, I wasn't sure. And that's why I'm wondering where those assertions made to the district court was it clear? Because in my clue to the keeping of me today, I'd say, well, this covenant, we intended it to cover the products that had been the subject of the lawsuit, meaning that we will not sue them if they reintroduce those same products. We're not saying we won't sue them if they reintroduce different products, but those same products are free and clear. And if you come into me today and said that is exactly what this language meant, I probably would've said, OK, it wasn't clear to me, but now I understand. And if you think it was clear to the district court, I'm wondering about how he exercised his discretion. When he exercised his discretion to be really understanding what he were agreeing not to do, because I did. I think it hit 23 and 24 of our candidates that kind of explained before the briefing district court that that was our intent. And so what I was getting at now is that since we're not working on it in the means of the... Well, we're finishing sentence. What we're getting at now is even though we didn't covenant not to sue the future, that doesn't mean that we would sue on the same path as the future. And in order for there to be a case in controversy, perhaps we can dispute on both sides of the case. And so it's still speculative as to what we would do in the future, because we do have this path. And so that's part of what should be considered in the totality of the circumstances, what actually is plainly taking the future. And it's not automatic that we would sue on this path in the future, since we have some other options that we might consider. Thank you, Mr. Judge. Mr. Ducan, could you give me your honor? Just a couple of points. First, I'd like to address counsel, so I'm arguing about our motivations. We didn't notice that this path existed until we were sued. The product was on the market, and they sued us with a pattern of warning letter, no cease and desist letter, zero. So... Why does that work? Because revolutions... Because revolutions, counsel says that we went on the market trying to create an infringement suit. Well, if you don't know what the path makes, this is how can we create an infringement suit. Do you have your asses to make findings? No, we're not. But we have just responded to this. Because it's on the Pyroagymist book. And I'd brief this, and they have not disputed it until now. This issue of... Yes, to pick up on a question, I asked him this tutorial. If one were to agree with you in this matter, okay? And say that there is an article three, case or controversy under the Metagun and so on. Okay? What would be the next step? The next step? The district court for what? For a trial. For a trial. We were on the lookout steps. Well, they say we have infringed the path, so there's an infringement claim. If they're saying that there's no infringement claim anymore, then it's just an echo of a comma and a bullet. But if they maintain that and go back, they could sue one infringement. Or they could bring an infringement claim. They're infringement claim that was dismissed without prejudice. You were instated, and an echo of accountability claims be there. That's correct. All the pre-trial papers that were in the court's hands and we were ready to pick a jury. It had infringement in there, had all our defenses in there. This issue about whether we may or may not sue on this patent, maybe on some other patent, that's the problem. That perpetuates the problem and doesn't resolve it. We're sitting there saying, if we introduce this product, what's going to happen to us? This patent, the ninth or theteenth, is the granddaddy patent. All patents flow from that. If this patent goes down, do you go an echo of a comma? They all go down. This is their broadest patent. They never said in their briefs that they wouldn't sue us. They're saying, well, we may or may not. That just hurts us more. That doesn't give us any comfort. That doesn't result in controversy. What they really want us to do on this issue of whether we engage in any concrete activities, we don't have to call the manufacturers. They send us 200 samples so they can sit in our warehouse. We don't have to say here, rather, we shouldn't. Here's our blueprint for this product. We work on the market. It's the same product. The only way this controversy is going to be resolved is if we go to try and lose counterpoints. Thank you. Thank you. Thank you very much. This is a current case. It's a different case of issue