BOT M8 LLC v. SONY CORPORATION OF AMERICA
Oral Argument — 05/07/2021 · Case 20-2218 · 42:43
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Judge Dyk
Our final case this morning is number 20-2218,
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BOT M8 LLC versus Sony Corporation of America, Mr. Andre.
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Appellant Attorney (Paul J. Andre)
Thank you, Your Honor.
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May it please the court.
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We have two discreet and independent issues.
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Can a district court use its own pleading standard
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that is in direct contradiction to this court's pleading standards
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in dismissing a complaint?
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And the second...
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Judge Dyk
Mr. Andre, hi.
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This is Judge Dyke.
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I think you have some good arguments
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that the district court heard in dismissing the 988 and 670
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aspects of the complaint.
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But with respect to the 540 allegations,
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it strikes me that you have a bit of a problem
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because the only allegation that comes close to
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the 540 allegations is that you have a problem
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with satisfying the claim language concerns the hard drive.
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And I think, as I understand the complaint,
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it is alleged that the hard drive is part of the motherboard.
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So why don't you have a problem instead of the 540?
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Appellant Attorney (Paul J. Andre)
And the authentication program was separate from the motherboard.
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It was not free.
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And the authentication program...
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Judge O'Malley
Wait, where did you...
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From the motherboard?
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But the complaint says...
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Appellant Attorney (Paul J. Andre)
From the motherboard.
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The actual...
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The way it is to be the network.
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Judge Dyk
Understanding that.
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If you look at 633 of the appendix,
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paragraph 74,
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it talks about an authentication program
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being in these three separate places.
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But I don't see where there's an allegation
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that the game program is found in each of those three.
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Appellant Attorney (Paul J. Andre)
So if you're looking at...
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There's memory on the hard drive
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and the authentication program there.
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Go down...
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Judge Dyk
Well, wait, wait, wait.
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I don't see where the Blu-ray,
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for example, is alleged to contain the game program.
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Appellant Attorney (Paul J. Andre)
637, you'll see that it's saying game software
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that is inserted into the PlayStation 4 console.
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So it actually has the game software on it.
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And we have multiple sites that shows
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that the game comes off proprietary CD-ROM
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from their websites regarding that.
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So that's in that second chart.
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Judge Dyk
What do you mean, second chart?
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I'm looking at 637.
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What do you mean, second chart?
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Appellant Attorney (Paul J. Andre)
There are two charts in each page.
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The way it's set up.
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Judge Dyk
I'm not understanding what you're saying.
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Where on the page do I look?
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Appellant Attorney (Paul J. Andre)
The bottom of that page.
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Judge Dyk
Under E?
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Appellant Attorney (Paul J. Andre)
E, that's correct.
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Judge Dyk
Yes.
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Appellant Attorney (Paul J. Andre)
You'll see there a PlayStation 4 Blu-ray disc
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containing the game software.
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But the Blu-ray disc has the memory and the game program,
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storing the game program
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with the authentication program as well.
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Judge Dyk
Yeah.
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Appellant Attorney (Paul J. Andre)
And up the next page,
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the PlayStation Network server,
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thinking that the board includes memory
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and with the game on it,
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can also be the network server itself.
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Judge Dyk
You allege that the hard drive
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is part of the motherboard, right?
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Appellant Attorney (Paul J. Andre)
The motherboard is different from the board
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and it connects to the board.
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I believe if you look at,
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when you get to the section regarding the motherboard itself,
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down several pages to pull out the motherboard,
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it contains the memory that is different
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from the boards that follow the game program
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during execution.
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We actually allege that the motherboard is different
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from the board that we described.
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The memory is different.
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Judge O'Malley
It doesn't say the motherboard is.
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Appellant Attorney (Paul J. Andre)
There's different memory, obviously.
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We're trying to get across here,
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which is different from.
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And so there's nothing in the claim language that I see
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that they cannot be sitting in the same plane,
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that they shouldn't be connected to each other.
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What we would define as a motherboard
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at this stage of the case
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ain't more than added to survive a motion to dismiss.
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Judge O'Malley
Well, what do we do about saying
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that these are pleadings that might be there?
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Appellant Attorney (Paul J. Andre)
You could have multiple authentication.
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One of the biggest issues regarding
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these gaming consoles,
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they put authentication throughout these consoles.
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They put them on the disk.
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They put them on the servers.
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It's not mutually exclusive.
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And like you said, Judge O'Malley,
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my point is,
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we did the actual consoles.
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We investigated the disk
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and obviously the server,
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because that's behind a firewall.
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This should have been more than adequate
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to survive the standards this court set forward.
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You know, the Nalco case that we cite extensively
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in lifetime industries.
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Judge O'Malley
When did you do those?
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At the time?
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The first conference that you'd already done it
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and then you told the leader that you couldn't.
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Appellant Attorney (Paul J. Andre)
We did an extensive rule 11 analysis
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before we filed complaints.
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We take that very seriously.
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So before the complaint was filed in August of 19,
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we had done the teardowns and created charts.
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Teardown, the legal ways it can do it for you,
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where they actually just teardown the program,
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the actual reverse engineering
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is a different technology altogether.
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Reverse engineering is where you try to go in
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and rip off someone's source code.
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Judge Dyk
The two are different.
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It still doesn't explain
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why you didn't raise the jailbreaking issue earlier.
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And I just, I mean,
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you agree that we're dealing here
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with the good cause standard of rule 16, right?
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Appellant Attorney (Paul J. Andre)
For the motion for leave to amend,
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not on the original dismissal.
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Judge Dyk
I understand.
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But, and good cause imposes diligence.
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So why is it that you didn't earlier
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raise the jailbreaking problem?
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On November 21st, for example.
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Appellant Attorney (Paul J. Andre)
To be honest with you, I think miscommunication,
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it was very explicit that we had done the teardowns
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and we tore down the Sony PlayStation.
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We were talking about.
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Judge Dyk
Well, so what?
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You agreed to, he said it's two weeks
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to file the first amendment complaint adequately.
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And you said yes.
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And then, so he set the December 5th date.
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So what's the,
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what's the excuse for not raising the jailbreaking issue
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at that point,
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if you thought that that was necessary
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to file the first amended complaints?
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Appellant Attorney (Paul J. Andre)
We didn't think it was necessary, Your Honor,
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to be very candid with you.
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We think that the teardowns
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with more than adequate information
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is much greater to do these teardowns
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and provide an element by element claim analysis
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in terms of each and every element
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is this court's stand.
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And that's what the district court has done.
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And it's Mr. Andre.
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Judge Linn
It's code information you couldn't have gotten
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Appellant Attorney (Paul J. Andre)
on the second amended complaint.
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If any of that is there,
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because jailbreak, the actual console
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and reverse engineer,
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there's explicit language.
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I guess I'll reserve.
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Judge Dyk
We're not finished yet.
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I don't see that you answered Judge Lynn's question
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where the product of this jailbreaking
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is reflected in the second amended complaint,
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which is what I understood him to have.
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Judge Linn
Yes, that was my question,
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and I didn't get an answer.
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Appellant Attorney (Paul J. Andre)
Complaint, any time you see a source code,
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let me pull it up, 91,
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you'll see a lot of, they do a jailbreak,
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held liable for doing, 588.
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Judge Linn
File directory is part of the source code.
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Appellant Attorney (Paul J. Andre)
You can go on through 2609.
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Judge Dyk
But Mr. Andre, this is Judge Dyke.
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I thought your theory in the second amended complaint
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was that the authentication program
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and the game program were online.
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The hard drive,
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and that's what satisfied the claim limitation,
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and that the hard drive was separate from the motherboard.
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Am I wrong about that?
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Appellant Attorney (Paul J. Andre)
The board that...
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Judge Dyk
Just tell me whether I'm...
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Am I wrong?
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Appellant Attorney (Paul J. Andre)
You're correct.
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Judge Dyk
Okay, well, then this allegation
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doesn't have anything to do with this
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because this is talking about the Blu-ray disc.
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Where did you rely on the source code
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to make the central allegation
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that I just referred to about the hard drive?
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Appellant Attorney (Paul J. Andre)
The first one is the hard drive, Blu-ray disc.
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Judge Dyk
So when you agreed with me
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that the second amended complaint
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relied on both of these things being in the hard drive,
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that wasn't quite right
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because you're saying that's not entirely the theory.
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Appellant Attorney (Paul J. Andre)
That's one of the allegations we've alleged.
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Back here a little bit, too.
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And then the district court required this court,
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and actually in direct contradiction,
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to what's in this court.
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We then went in and showed them our teardown charts
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that we had done in two weeks.
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The court then said that was not
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to go do the source engineering on source code,
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which we had to do...
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Judge Dyk
Required you to do that?
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Where did the district court require you to do that?
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Appellant Attorney (Paul J. Andre)
In his order, he dismissed the amended complaint
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saying that the teardowns were not sufficient.
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Judge Dyk
That's not true.
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This is that he required you to jailbreak.
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He allowed you to do it.
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He didn't require...
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Appellant Attorney (Paul J. Andre)
He said, we need source code.
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They would not give us the source code
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because source code is one of the most protective...
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And the only way you can do it is to find this stuff.
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Judge Linn
What the judge was saying was that
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you couldn't have done this before.
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Give you another chance.
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Well, you have my permission for what it's worth.
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Appellant Attorney (Paul J. Andre)
The amended complaint,
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the teardowns we'd done prior to that,
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that was not going to be sufficient.
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We needed source DMCA.
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And he said, well, I don't know if I have authority or not,
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but you have the authority to do so.
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It was in my wildest imagination.
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I could not...
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Imagine that in order to file a complaint,
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you'd have to go in and have each and every element,
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not just an allegation.
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And as this court has done,
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this disease and Nalco,
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you have to prove your case.
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Judge Dyk
Mr. Mastranda, I think we're way over our time here
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unless my colleagues have further questions for you
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at this point.
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I think we'll hear from Mr. O'Quinn.
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Appellant Attorney (Paul J. Andre)
Some reserve time on the one-on-one issue.
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Judge Dyk
You have no time left at all,
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but we'll give you two minutes to rebuttal.
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Mr. O'Quinn.
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Appellee Attorney (John C. O'quinn)
Thank you, Judge Dyke.
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May it please the court, John O'Quinn on behalf of Stoney.
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The district court properly applied precedent
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to dismiss bot M8 claims against Stoney
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as either inadequately pled
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or patenting an eligible subject matter.
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I think what's important to recognize here
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is with respect to these particular claims...
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Judge Dyk
Could you address the 540
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and what Mr. Andre said about that?
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Appellee Attorney (John C. O'quinn)
Yes, Judge Dyke.
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So with respect to the 540 patent,
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as I said,
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as some of the questions from you
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and Judge O'Malley have indicated,
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there were allegations that the authentication
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was on the motherboard itself.
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You can see that at Appendix 630,
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paragraphs 66, 67, and 68.
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That, of course, is the opposite
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of what the claims require.
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The claims here, it's not enough
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that there simply be an authentication program somewhere.
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It's got to be on the same board with the game,
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and that board has to not be
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the motherboard.
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And that is exactly what is missing here,
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at least in terms of any sort of plausible allegations.
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There are allegations that it's on the motherboard,
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which under the Ninth Circuit's decision in Trist
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shows that this is really all hand-waving
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and therefore not entitled to the presumption of truth.
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And the allegations...
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Judge Dyk
So where do we find the allegations
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that the authentication program's on the motherboard?
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Which page, which paragraph?
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Appellee Attorney (John C. O'quinn)
It's Appendix 630, Judge Dike,
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and in all of paragraphs 66, 67, and 68.
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Now, even if that wasn't there,
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we would be making the same argument here,
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because ultimately what they have to have
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to open the doors of discovery,
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as Twombly specifies,
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is they need to have a plausible basis.
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Judge Dyk
You're referring specifically to paragraph 66,
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where it says the PlayStation reads an authentication program
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from the memory of the motherboard,
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not the memory of the motherboard?
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Appellee Attorney (John C. O'quinn)
Yes, yes, Judge Dike.
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Okay.
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And so there are allegations,
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and I think it's important to recognize,
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both for the 540 and for the 990 patent,
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that there are multiple things in these devices
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where programs could be stored.
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So you're not dealing with a situation
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where there's a single board,
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and you could infer, well, everything must be on that.
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In fact, what's purportedly inventive here
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about both the 540 patent,
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and the 990 patent,
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is that they gather certain things on one board,
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separate from the motherboard,
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so as to reduce commercial manufacturing costs.
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Because they didn't invent motherboards or boards,
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they didn't invent authentication programs,
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or mutual authentication programs,
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or fault inspection programs.
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The only thing that's putatively inventive here
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is the specific configurations on the specific devices.
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Judge O'Malley
What's your response, Mr. O'Quinn,
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to Mr. Andre's contention that...
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Well, Judge O'Malley, I don't understand him
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Appellee Attorney (John C. O'quinn)
to be alleging that there are alternative pleadings
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vis-a-vis the motherboard.
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And I think what is perhaps telling
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is if you look at Appendix 1676,
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Paragraph 66, the proposed Second Amended Complaint,
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they now delete the allegations about the motherboard
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from the proposed Second Amended Complaint.
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So I don't think it was an alternative.
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I think they were just guessing
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that it could be on any possible board in the device.
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And they didn't think it all the way through
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because obviously alleging it's on the motherboard
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is inconsistent with what the claims require.
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And I think there's exactly...
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Judge O'Malley
Let me ask you a couple other questions.
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First, just on timeliness ground.
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Appellee Attorney (John C. O'quinn)
I appreciate the question, Judge O'Malley.
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I think if you look at the order,
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what he was saying is that that was the deadline
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by which they could file a motion for leave to amend.
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end. And isn't that when they did? Well, respectfully, Judge O'Malley, I think what
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he was saying is, I will entertain the motion if you file it by then. But he ultimately concluded
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that the motion shouldn't be granted because one of the things that they would have needed to show
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in the motion was just cause. Because the Rule 16 standard applied, the deadline for an amended
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complaint was the deadline that they had agreed to. But to the extent the court relied on
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Judge O'Malley
timeliness, that was wrong. Maybe. Well, Judge O'Malley, I didn't read his opinion as saying
27:58
Appellee Attorney (John C. O'quinn)
that they had filed their motion in an untimely way. I read his opinion as saying that you didn't
28:05
satisfy the just cause standard because you didn't exercise diligence. But I didn't read him
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as denying their motion as being untimely, as opposed to that they didn't exercise
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sufficient diligence in the time for which they filed an amended complaint because they should
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have done all of this beforehand. And my colleague on the other side makes a number of statements
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about how he couldn't imagine that reverse engineering was really what the district court
28:35
required. But of course, not only is that what the district court specifically said at Appendix 533,
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but indeed, this came up in the motion to dismiss.
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And there was no argument in the motion to dismiss hearing that they did not think that
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they were required to reverse engineer. In fact, Sonia's counsel specifically argued at Appendix...
28:57
Judge O'Malley
Well, counsel, I understand that. But the question is whether or not it's quiret that tell you that I
29:12
have never seen trial. No, Judge O'Malley, I understand the concern. Let me try to
29:32
Appellee Attorney (John C. O'quinn)
assuage it in a couple of ways. First of all, the district court did not tell them that they had to
29:38
use source code and that they had to plead things about source code. He did say that they needed to
29:44
plead why they thought something was in a particular place. What is their basis? For
29:51
example, with the 540, what is their plausible reason for alleging that it's not on the
29:56
motherboard, but instead on some other board? Why do they think it's there? I mean, they have to
30:02
know the answer to that question in order to come into court in the first place. And that's what he
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was asking for. And he said, well, I don't know. I don't know. I don't know. I don't know. I don't
30:08
know. And he specifically told them at Appendix 532, and he reiterated this at Appendix 10 in his
30:13
opinion, that if they couldn't explain why they, if they couldn't allege something, then they could
30:20
explain why it was that they could not do so. And so we're not talking about a situation like
30:26
KTEC, where I know this court was concerned that somebody shouldn't just be able to hide things
30:31
Judge O'Malley
and therefore avoid a complaint being filed against them. And he told them, well, certainly
30:58
Appellee Attorney (John C. O'quinn)
Judge O'Malley, this court,
30:59
has never said that. This court has had a very, a very few number of cases that really addressed
31:04
the pleading standards, and really none in the context of this particular type of technology,
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which is very far removed from what was at issue in, say, for example, this disease.
31:14
Itself noted that you dealt with a very simple technology, and you could look at a picture
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and understand what the basis for the allegations were. Here, they tried to run that play, but of
31:26
course, you know, you can't look at the picture of the hard drive, as they suggest, at Appendix
31:31
636. That thing is there, either for the 540 patent or the 990 patent. And you can't look at a picture.
31:38
Judge Dyk
So let me, this is Judge Knight. Let's talk about the 990, the 988, and the 670. If, in fact,
31:45
they don't have to allege source code to have satisfactory allegations with respect to those
31:51
patents, and they don't seem to have the same problem that they do with the 540 of making
31:58
contradictory allegations, what's wrong with the allegations of the 540?
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The First Amendment's complaint would respect to those three patents, the 990, the 988, and the 670.
32:09
Appellee Attorney (John C. O'quinn)
Sure. So let me break them up, Judge Knight, because the 990, I think, is very similar and
32:15
suffers from the same, many of the same problems as the 540. I think the other two are closely
32:21
related to themselves. And starting with the 990, you do have the type of inconsistency in the sense
32:28
that if you look at Appendix 660, paragraph, it's Q, 106Q,
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what they allege is that the PlayStation 4 itself implements the mutual authentication,
32:39
separate from the authentication program that's on the flash memory. And, of course,
32:45
the flash memory is the alleged removable storage medium that has the game. And the issue here with
32:51
these patents, it's very unusual for an electronic. It's not just the functional relationship between
33:03
these programs. It's that they have to fit in devices. There are multiple things. It's on this
33:32
one. It's on the one with the 980. It's on the one with the 980. It's on the one with the 980. It's
33:37
a game for it to be, which is actually just on the device itself. And that is, of course, what they
33:45
allege at Appendix 660, paragraph 106Q. So I think you have the exact same issue in terms of court in
33:54
the words of NALCO. But if you don't agree with that, you still have the question.
33:59
Judge Dyk
Okay. But let's talk about the 988 and the 670 specifically. There are no contradictory
34:04
allegations there, right? Well, I...
34:14
Wait, wait. Answer my question. Is there... Are there...
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Do you contend that they're conflicting allegations as to the 988 and the 670?
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Appellee Attorney (John C. O'quinn)
Judge Duck, I don't think they are as squarely conflicting as with respect to the 990 and 540,
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which are completely conflicting. What's wrong with the allegations as to those two patents?
34:45
128F on Appendix... Parts of the game are loaded at different times upon request. And whether that
34:54
is directly contradictory, it is certainly inconsistent with or at least belies the notion
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that the fault...
35:01
...fault program is done before the game ever starts executing, because...
35:06
Judge Dyk
Let's assume that we conclude that there are no contradictory allegations for the 988 and the 670.
35:16
Appellee Attorney (John C. O'quinn)
Well, Judge Dyke, what's wrong with the allegations is that they still have not
35:19
pled an answer to the question of why do they think the program is done before the game starts,
35:30
or the other way around, why the game doesn't start before the inspection program is complete.
35:39
I'm sorry, Judge O'Malley?
35:43
What goes to just...
35:58
Judge O'Malley
...be probable. It just has to pass the line...
36:05
Appellee Attorney (John C. O'quinn)
I think that's certainly true, and that's consistent with what the Supreme Court said
36:13
in both Twombly and Iqbal. And of course, what Iqbal says is it's not that something has to be
36:18
fanciful to disentitle it to the presumption of truth. It's the history nature of the allegation
36:25
that disentitles it to the presumption of truth. And, you know, 540 and the 990 ought that they be
36:34
on the main device itself, because, you know, the whole point of the invention was to move it off to
36:39
a special board for manufacturing reasons. The question is, why do they think the program is done
36:44
before the game starts? Why have they moved the... Why have they nudged it, in the words of Twombly,
36:48
passability, possibility, excuse me, that the fault inspection program has started, other than just
37:01
simply say so? The problem is that when there is nothing, they don't point to anything, like in a
37:08
user manual, they don't point to anything that can draw the inference. The game program doesn't
37:16
start before the fault inspection program concludes.
37:25
Judge O'Malley
...nature of their allegations. I mean, we're saying whether you...
37:37
Appellee Attorney (John C. O'quinn)
Well, Judge O'Malley, I mean, two points in response. First, you know, this case was originally
37:45
filed in another court. Somebody filed a motion to transfer, you know, without...
37:55
May I continue, Your Honor?
37:57
Yeah.
37:57
Judge O'Malley
Yeah. We'll just add one piece to my question, but infringement of non-infringement, at least as to
38:07
some... You understood what they were saying about system-operated, right?
38:16
Appellee Attorney (John C. O'quinn)
Well, Judge O'Malley, the district court certainly didn't deny their motion.
38:21
Excuse me. The district court did not grant our motion to dismiss as to all of the claims, and we
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certainly did afterwards, you know, move for summary judgment on the patents that remained in
38:36
the case. And I think one of them, they actually had voluntarily dismissed, and then the summary
38:41
judgment was focused on 101 with respect to the 363 patent. But with respect to the first question,
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or the first part of your question, Judge O'Malley, you know,
38:50
obviously there's a strategic choice that anyone has to make when you're filing a motion to transfer
38:55
of whether to have a motion to dismiss and run the risk of having the court dig into it and decide the
39:01
case... Decide the motion to dismiss issue, and then that would become a basis for denying a voluntary
39:06
1404 transfer of motion. And so when the court did grant the motion to transfer, the district court
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applying Ninth Circuit law like Sparling v. Hoffman and Wong v. Bell, you know, properly of its own
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initiative noted the inadequacy of the...
39:20
the complaint and actually did more than what the Ninth Circuit contemplates. He didn't simply dismiss it after
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giving them notice. He gave them the opportunity to re-plead, and he gave them as much time as they wanted to.
39:36
He gave them exactly the time that they asked for. And so I think the fact that we didn't originally move to
39:44
dismiss when, of course, a Rule 12 motion, if it had come to that, that there's no significance to be drawn from
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that, Judge O'Malley.
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Judge Dyk
Judge O'Malley Okay. And unless my colleagues have further questions, I think we're...
39:59
I think we're out of time. Okay. Hearing none, Mr. Andre, you have two minutes.
40:05
Appellant Attorney (Paul J. Andre)
Mr. Andre Thank you. And just very... Judge O'Malley, they did file a summary judgment of non-infringement on that,
40:15
and they did it based on the fact they knew exactly what was the... It is drawn to a machine, future gains.
40:28
This is a dynamically... happens in or a combination of specific...
40:34
Judge O'Malley
Judge O'Malley Well, let's... let's... what about...
40:44
Appellant Attorney (Paul J. Andre)
Mr. Andre There's inconsistencies. Removable disk, and that's what it is, and it could also reside on the motherboard.
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We showed... Judge Lynn asked earlier about the appendix in the red line version of it.
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We showed that in appendix number 260. We actually showed the... We did show that it's not inconsistency in authentication.
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Judge O'Malley
Judge O'Malley Not too much.
41:48
Appellant Attorney (Paul J. Andre)
Mr. Andre The motherboard not have... the motherboard to have authentication...
42:13
Judge O'Malley That the memory with authentication program was present in multiple places.
42:30
Judge Dyk
Mr. Andre Thank you, Mr. Andre. Thank you, Mr. O'Quinn. The case is submitted.
42:34
Judge O'Malley
Judge O'Malley The court is adjourned from day to day.