https://www.courtlistener.com/api/rest/v4/audio/?count=on&format=xmlhttps://www.courtlistener.com/api/rest/v4/audio/?cursor=cD0xMDQxMTE%3D&format=xmlhttps://www.courtlistener.com/api/rest/v4/audio/104130/?format=xml104130/audio/104130/barbosa-da-cunha-v-moniz/https://www.courtlistener.com/api/rest/v4/dockets/72281778/?format=xml2026-04-06T14:31:30.734591-07:002026-04-06T14:31:30.734608-07:00CMonizBarbosa Da Cunha v. Moniz23711c788ec0983c1e2cee110b7637847e5597afhttp://ww3.ca2.uscourts.gov/decisions/isysquery/565b2575-7cf7-455b-b1ff-bb15fe5623f5/1/doc/25-3141.mp3mp3/2026/04/06/barbosa_da_cunha_v._moniz.mp3FalseFalse0https://www.courtlistener.com/api/rest/v4/audio/104129/?format=xml104129/audio/104129/tesla-v-pelinkovic/https://www.courtlistener.com/api/rest/v4/dockets/73152942/?format=xml2026-04-06T14:30:52.795247-07:002026-04-06T14:30:52.795258-07:00CTeslaTesla v. Pelinkovicc7788db9c8cf53c8285dc0c76ba7a751a25e77a1http://ww3.ca2.uscourts.gov/decisions/isysquery/565b2575-7cf7-455b-b1ff-bb15fe5623f5/2/doc/25-2246.mp3mp3/2026/04/06/tesla_v._pelinkovic.mp3FalseFalse0https://www.courtlistener.com/api/rest/v4/audio/104128/?format=xml104128/audio/104128/the-people-of-the-state-of-new-york-by-letitia-james-v-citibank-na/https://www.courtlistener.com/api/rest/v4/dockets/71876945/?format=xml2026-04-06T14:30:39.265680-07:002026-04-06T14:30:39.265697-07:00CThe People of the State of New York, by Letitia James v. Citibank, N.A.50c270713acac039d3ec1184dd3aaa6bd5ed25d3http://ww3.ca2.uscourts.gov/decisions/isysquery/565b2575-7cf7-455b-b1ff-bb15fe5623f5/3/doc/25-2105.mp3mp3/2026/04/06/the_people_of_the_state_of_new_york_by_letitia_james_v._citibank_n.a..mp3FalseFalse0https://www.courtlistener.com/api/rest/v4/audio/104127/?format=xml104127/audio/104127/jawan-tarquinii-v-john-phelan/https://www.courtlistener.com/api/rest/v4/people/8588/?format=xmlhttps://www.courtlistener.com/api/rest/v4/dockets/69302646/?format=xml2026-04-06T13:32:19.887920-07:002026-04-06T13:32:19.887934-07:00CJawan Tarquinii v. John PhelanPillard; Wilkins; Katsas800ba270498d5e4772ff7c0a23813e6d6d312de4https://media.cadc.uscourts.gov/recordings/docs/2026/04/24-5243.mp3mp3/2026/04/06/jawan_tarquinii_v._john_phelan.mp3FalseFalse0https://www.courtlistener.com/api/rest/v4/audio/104126/?format=xml104126/audio/104126/the-estate-of-stephen-m-jennions-v-cftc/https://www.courtlistener.com/api/rest/v4/people/8588/?format=xmlhttps://www.courtlistener.com/api/rest/v4/dockets/69888831/?format=xml2026-04-06T13:31:51.808743-07:002026-04-06T13:31:51.808760-07:00CCFTCThe Estate of Stephen M. Jennions v. CFTCPillard; Wilkins; Katsas1b8da439995acbe9d088b7ac920e08c57dd2a59chttps://media.cadc.uscourts.gov/recordings/docs/2026/04/25-1106.mp3mp3/2026/04/06/the_estate_of_stephen_m._jennions_v._cftc.mp3FalseFalse0https://www.courtlistener.com/api/rest/v4/audio/104125/?format=xml104125/audio/104125/united-states-v-david-zobel/https://www.courtlistener.com/api/rest/v4/people/8588/?format=xmlhttps://www.courtlistener.com/api/rest/v4/dockets/69756808/?format=xml2026-04-06T13:31:32.149212-07:002026-04-06T13:31:32.149228-07:00CUnited States v. David ZobelPillard; Wilkins; Katsas081e47a54fe161a4433d844de9e5af79ee51ea89https://media.cadc.uscourts.gov/recordings/docs/2026/04/25-3035.mp3mp3/2026/04/06/united_states_v._david_zobel.mp3FalseFalse0https://www.courtlistener.com/api/rest/v4/audio/104124/?format=xml104124/audio/104124/anders-construction-inc-v-united-states/https://www.courtlistener.com/api/rest/v4/dockets/73151730/?format=xml2026-04-06T12:31:09.508771-07:002026-04-06T12:31:09.508780-07:00CAnders Construction, Inc. v. United States74c97a115464a196dd3d716a036144c1863237cehttps://www.cafc.uscourts.gov/oral-arguments/24-2247_04062026.mp3mp3/2026/04/06/anders_construction_inc._v._united_states.mp3FalseFalse0https://www.courtlistener.com/api/rest/v4/audio/104123/?format=xml104123/audio/104123/intuit-inc-v-samesurf-inc/https://www.courtlistener.com/api/rest/v4/dockets/73151727/?format=xml2026-04-06T12:31:04.537132-07:002026-04-06T12:31:04.537145-07:00CIntuit Inc. v. Samesurf, Inc.0f92368542c0288bc54ce7f1c3fa98d39723f635https://www.cafc.uscourts.gov/oral-arguments/24-2298_04062026.mp3mp3/2026/04/06/intuit_inc._v._samesurf_inc..mp3FalseFalse0https://www.courtlistener.com/api/rest/v4/audio/104122/?format=xml104122/audio/104122/samesurf-inc-v-intuit-inc/https://www.courtlistener.com/api/rest/v4/dockets/73151725/?format=xml2026-04-06T12:31:00.879610-07:002026-04-06T12:31:00.879625-07:00CSamesurf, Inc. v. Intuit Inc.656800e4c6a81dfa794be063f6feda49e5ac6775https://www.cafc.uscourts.gov/oral-arguments/24-2268_04062026.mp3mp3/2026/04/06/samesurf_inc._v._intuit_inc..mp3FalseFalse0https://www.courtlistener.com/api/rest/v4/audio/104121/?format=xml104121/audio/104121/tjtm-technologies-llc-v-google-llc/https://www.courtlistener.com/api/rest/v4/dockets/73151723/?format=xml2026-04-06T12:30:58.936678-07:002026-04-06T12:32:09.367658-07:00CTJTM Technologies, LLC v. Google LLC1aaec4bf38451c32beed6bb01b92337ad145b1c9https://www.cafc.uscourts.gov/oral-arguments/25-1218_04062026.mp3mp3/2026/04/06/tjtm_technologies_llc_v._google_llc_cl.mp3mp3/2026/04/06/tjtm_technologies_llc_v._google_llc.mp31255TrueFalse11Alright, our final case this morning is number 251218 TJTM Technologies v. Google. Okay, Mr. Kittle. Good morning, your honors. Blair Kittle on behalf of TJTM Technologies. May it please the court. This court should reverse the district court's decision because the 853 patent addresses a technological problem that in general, cell phones have been designed to attract attention through alerts, notifications, signals, and prior to the issuance of the patent, did so even when brought into a motor vehicle when the driver should have been focusing on the road. Recognizing this problem, the inventor of the 853 patent sought to improve cell phone technology by expressing a system that involves state-of-the-art graphical interfaces, the mechanical and physical positioning of both the phone in connection with the vehicle, described in the specific technological context of how cell phones are used and designed at the time. You say it's a technical solution to a technical problem. Google says this could hardly be a more human-centered problem that predates cell phones and could be solved by using a lot of people. How do I decide if it's in fact a technical solution, a technical problem, or something else? I think the thing to look at is what actually is the problem and how best to describe it. Here, I think that Google's description of the problem is, the description is a behavioral problem. It's a behavioral problem of people get distracted. I think here, the way we view this is that cell phones have enabled these types of messages to be delivered to people anywhere as they go. That's sort of the entire point of a cell phone. And that the designers of cell phones have created distractions which distract people to bring their attention to the device in a way that is separate from the actual message itself. Because certainly, messages have distracting qualities to them. Certainly, if I got a message that said I've been evicted from my place of residence, that would distract me. That is a separate quality to the distractions that are provided by the technology itself. Where's the technical solution? It just says block this out. It doesn't tell you how to do it. It doesn't tell you how to program the phone to do it, right? The patent itself does not tell the user exactly how to do it. Well, I think that it describes a flexible solution which is applicable to the types of technology that was available. It describes a result. In some ways, of course, it's required to describe a result. But it actually does describe the technical steps by which that occurs, which, as I said, involves both the physical positioning of the device as well as the specific parts of the device, and relies upon the level of technology that the devices this patent is interfacing with arrive at at the time. So, for example, the graphical user interface is not an inherent feature of a cellular telephone. Car phones prior to that wouldn't have graphical user interfaces. It could have purely mechanical interfaces. It says a memory, including instructions that, when executed, do this. It doesn't tell you what the steps are. I think I would have to agree with you on your honor there. It says what it says. Yes, sir. I'm sorry. Are you contesting that whether mobile phones have graphical user interfaces? Well, I think that it is not an inherent… As of 2013? So, as of 2013, they most likely did, yes. I'm not contesting that feature of it. But that is a description of the totality of where this technology was at the time, is that the graphical user interface is inherent to it being able to save the away message, which is a feature we haven't discussed yet as well, that is not just in relation to suppressing the notifications rather than the incoming messages. The sending the away message performs an additional function, which we also described in our briefing that it provides, for example, a log to law enforcement of somebody who was pulling over a motorist, that they were, in fact, not using their device during the time in which it was connected to the vehicle and in this function. That's one potential feature that it also supports. So I'm not contesting that it has… The away message, are you suggesting that's a technological solution to a technological problem? I mean, I thought it was pretty darn conventional that when someone doesn't pick up the phone, there's going to be an away message. Well, Your Honor, I think that that's not entirely true, and I think that in the context of cell phones and the advent of people carrying them, there has become an expectation that people are more available and that the absence of a response from someone over time sending a message to them can mean different things in that social context. So what I mean here is, for example, I'll tell you a story about a practitioner I dealt with at a law firm. The mail came once a day, and so the expectation was that the response was you would get at maximum one response a day to physical mail being delivered. With the advent of cell phones, cell phone technology, and the improvement of the same, the expectation of responsiveness has increased. So the technological problem of the expectation, the social expectation, that people are more available is actually improved upon by this patent in that the people who might be communicating with you are— My kids never pick up my calls. Well, certainly the social context for everyone is different and that your kids may have different expectations with you than, for example, someone in a professional services business relationship might have a particular expectation of response. This patent provided the flexibility to provide that automatically using a technological solution to everyone, regardless of their individual social expectation with the people who may be communicating with them. As I understand the procedure here, there was an original complaint. District Court dismissed the original complaint, saying it would be futile to amend with respect to step one, but you could try again with respect to step two. You don't appeal that finding of futility with respect to step one, correct? I think we are appealing the entirety of the court's dismissal. I think that we do think it was not futile on step one. To the extent you added anything, and I don't know if you did it, but added anything relevant to step one in your amended complaint, it seems to me that that was inconsistent with what the District Court allowed you to do, and I didn't see any appeal of her limitation that you're stuck with what you alleged with respect to step one in your original complaint. Am I wrong about that? I think Google made this point in their briefing as well. Our brief provides our citations that we believe that that's incorrect and that the proper procedure would have been for Google to move to strike, but in terms of what we appealed, I think that you're correct, Your Honor. What do you think that you added with respect to step two that was materially different in your amended complaint than was already in your complaint? What we added with regard to step two was additional description of what the device is actually capable of performing in this context. So we added, for example, an expert's declaration to describe the historical situation and how this technology functioned. I didn't see anywhere where your expert said even your five steps, suppose it ordered combination, was unconventional, non-routine, not well understood. Did your expert even provide that opinion? I don't think the expert provided that exact opinion, Your Honor, no. He provided what was in his report. Do you think the Northern District of Illinois decision, ATOS, was correctly decided or incorrectly decided? Your Honor, it was ATOS. If you could assist me with the specific facts of that one. When the phone detects the car is moving, then the phone automatically goes silent. Right. So that was specifically addressing that that concept of just the connection with a car and detecting the connection of the car as the only feature might be an abstract concept. I don't think that that one was necessarily incorrectly decided. I think that this patent combines additional features, which make it not an abstract concept. Is it the pairing of the phone to the car? The pairing is one part of it, yes. But you're not arguing that your inventor invented pairing a phone to a car. We are not arguing that that alone is the thing that made this patent new. And it's not clear to me that pairing is even necessarily part of the claim because the claim is just for the phone. And then the claim limitation says in response to pairing, then make the phone go inactive. So it sets up perhaps a timing element, but it's not clear to me that pairing per se is a limitation in the claim. I think that's generally correct, Your Honor, in that it was contemplating that the methods of pairing were already in existence and that this phone would be able to utilize those in a variety of contexts, the ways that it might be able to pair with a car. It might use different technologies, Bluetooth, maybe a physical connection. Having said all that, in one sentence, can you just describe the inventive concept here in this claim? Yeah. In one sentence, the inventive concept is that it prevents the distractions that the phone generates automatically upon pairing with the car using the technology that exists at the time. With any other questions, I think I'll reserve my time for rebuttal. Okay. Thank you, Your Honor. Mr. Teets. Good morning, Your Honors. May it please the Court. Jonathan Teets for Google, joined by Dan Bagatelle. This is a pre-ALICE specification, and like many pre-ALICE and pre-NFISH specifications, the whole specification describes the invention in a purely functional way. And so the claims reflect that, and in that sense, use result-oriented functional language. Now I want to respond to a couple things that my friend on the other side just brought up. One of them is, suppose it's physical or mechanical positioning aspects or legal protection aspects that are described in the specification. That can't help because they are not reflected in the claims, and they are not claimed here. They might be in another embodiment, but not in this one. The mobile graphical interface point, too, in addition to being new on appeal, there's no sense in which that would be a technological solution to a technical problem. On the procedural point that Judge Stark, you asked about, regarding futility at Step 1, one thing I should note in response to counsel's argument that that was still open, at Appendix 188 in Google's reply below to the first motion to dismiss, we pointed out that TJTM had raised the prospect of submitting a declaration on the Step 1 issue to address the technological problem. So that was something that was before the district court, and then she squarely found futility at Step 1. As to why Google didn't move to strike, the problem wasn't that particular facts couldn't be pleaded. It was just what the proper record is for a question that had been previously decided. So we're not saying that they couldn't say whatever they wanted to say in their complaint. We're just arguing what the legal significance of that is. As to facts that were added at Step 2 by their expert, the expert focused on two things. One was just convenience, while admitting that the screening steps and method could already be performed. And the other was a focus on unclaimed features that haven't been raised on appeal, and that's this combination of two different transmitters and a certification server. If the court has no further questions. I have a couple. Today, at least, the one-sentence characterization of the inventive concept is something, if I caught this, to the effect of it prevents distracted driving to the extent that distracted driving is created by the mobile device itself using, I think, admittedly conventional technology, but presumably in a way that was not well-understood routine and conventional at the time. Why is there not at least a fact dispute about that inventive concept as so articulated? Two reasons, Your Honor. So setting aside any forfeiture issue or failure to raise that, this goes to the point that inventive concept at Step 2 can't result from use of the abstract idea in a generic way. It has to be something significantly more than that. And so even in a specific environment, the abstract idea employed generically might provide a benefit. That's not an inventive concept from an ALICE standpoint. That might go more to utility. All right. And on the, I suppose, high-level starting point here where they say ALICE is not a problem for them because this is a technical solution to a technical problem, and you say no it isn't, is that a question of law? Is it a question of fact? And how do I answer whether this really is a technical solution, technical problem type case? That's a question of law. And what that goes to is what the solution is. And a solution can be technical involving specific structural features that change the operation of a device, or it can be the mere automation with conventional features of a longstanding concept. And so that's the dividing line at Step 1. Step 2 then is just whether there is something beyond putting those conventional features to apply an abstract idea in a particular environment, whether it is some combination of limitations or limitation to claim that goes beyond that. So I think it's the nature of the solution itself and whether it just involves existing functionality to address an abstract idea. Is it possible that there is some kind of technical-based means here for getting to this good result of automatically turning off a phone while you're in the car because you're relying on this pairing ability. And now you're harnessing that pre-existing technical pairing feature in a way that hadn't been done before to achieve something that hadn't been done before, which is to automatically silence your phone. I mean, automatically silencing your phone could sound technical, and using pairing sounds technical, and that's the means to trigger the silencing. So maybe we have a technical means to getting to a technical outcome, which is silencing the phone. So those things are only technical in the sense that they happen on a phone. They're not technical in the sense that they're conventional functions of the phone and that they also map to what would happen in the offline analogy of, for instance, an assistant or a spouse riding in the car who silences your phone when you get in there and then unsilences the phone when you get to the rest stop on the Pennsylvania Turnpike, for instance. We don't need the wife in this invention. Well, that's a change in the user experience. I would not say that's an improvement in the user experience, but that's a change in the user experience that results from the inherent application of the abstract idea through conventional technology, and that doesn't cut it under Alice. So there certainly could be a case in which some aspect of that pairing process or the automatic initiation process did something a phone couldn't do before, like maybe there was some roadblock inside a phone's features that it wouldn't let you auto-silence something for some reason, and some inventors fixed that. This preempts any kind of innovation like that, and this just says, what you would have had a human do, just do it automatically, we don't care how. Without telling you how to do it automatically? No. Other than using conventional technology? Just automatically initiating a process, and the rest is left as an exercise to the reader. Okay. Thank you. Mr. Kittle? Thank you, Your Honors. Just a few quick points. I'd like to address the physical positioning piece. I think the physical positioning, the relation of the phone to the car, is simply a logically inherently necessary understanding of how this works, and therefore is part of it. I think I'd also like to address the idea that this patent simply takes over the function of what a human could do. I think the main point to bring up here is the concept of negative action versus positive action, and that a human could perhaps perform the function of silencing the device, putting the device in a location where it's not going to actually provide the kind of vibrational or visual distraction to the driver of the car as well. Those are things that a human could do with the device. However, in terms of how this is described as a technological solution to a technological problem, is it's not the silencing of the device necessarily that is the technological problem. It's the device itself that is creating the distractions that then requires addressing. So it is the device itself that has created the problem that needs solving, whereas appealing to the abstract concept that Google tries to describe this whole situation as simply suppressing messages. Messages don't inherently have vibration. Messages don't inherently have visual cues. Messages don't necessarily have auditory cues, all specifically designed in a physical device to present to you. This is the point I was trying to make about how messages have inherent interest, distractional qualities, but it's the technological qualities of the distraction of these messages which is creating the problem in a driving context, is that humans are unable to avoid the distractions that have been specifically designed into these devices. And it's this patent that specifically addresses that concept and provides a technological solution to a problem that the devices are creating, which humans weren't creating that problem. That's not where we're coming from on this. Okay. Anything further? No, Your Honor. Okay. Thank you. Thank both counsel.https://www.courtlistener.com/api/rest/v4/audio/104120/?format=xml104120/audio/104120/aml-ip-llc-v-bath-body-works-llc/https://www.courtlistener.com/api/rest/v4/dockets/73151216/?format=xml2026-04-06T11:30:47.754484-07:002026-04-06T11:30:47.754496-07:00CAML IP, LLC v. Bath & Body Works, LLCbc30963a731d3b13a687990f4b7a602cc722f75fhttps://www.cafc.uscourts.gov/oral-arguments/25-1280_04062026.mp3mp3/2026/04/06/aml_ip_llc_v._bath__body_works_llc.mp3FalseFalse0https://www.courtlistener.com/api/rest/v4/audio/104119/?format=xml104119/audio/104119/de-hart-v-collins/https://www.courtlistener.com/api/rest/v4/dockets/73151215/?format=xml2026-04-06T11:30:46.186009-07:002026-04-06T11:30:46.186022-07:00CCollinsDe Hart v. Collins533a87b2ebd2dbdfc665573e08d0490e8cb54ce8https://www.cafc.uscourts.gov/oral-arguments/24-2238_04062026.mp3mp3/2026/04/06/de_hart_v._collins.mp3FalseFalse0https://www.courtlistener.com/api/rest/v4/audio/104118/?format=xml104118/audio/104118/eagle-view-technologies-inc-v-nearmap-us-inc/https://www.courtlistener.com/api/rest/v4/dockets/73151214/?format=xml2026-04-06T11:30:44.265653-07:002026-04-06T11:30:44.265663-07:00CEagle View Technologies, Inc. v. Nearmap US, Inc.4c1d7df293684f9795e9d66a4fdbd6abf63407f5https://www.cafc.uscourts.gov/oral-arguments/24-2330_04062026.mp3mp3/2026/04/06/eagle_view_technologies_inc._v._nearmap_us_inc..mp3FalseFalse0https://www.courtlistener.com/api/rest/v4/audio/104117/?format=xml104117/audio/104117/melinta-therapeutics-llc-v-nexus-pharmaceuticals-inc/https://www.courtlistener.com/api/rest/v4/dockets/69893786/?format=xml2026-04-06T11:30:42.092984-07:002026-04-06T11:33:18.876293-07:00CMelinta Therapeutics, LLC v. Nexus Pharmaceuticals, Inc.91b31809d03d4a861a2e5cc3ab84c6aaad0c1bd3https://www.cafc.uscourts.gov/oral-arguments/25-1281_04062026.mp3mp3/2026/04/06/melinta_therapeutics_llc_v._nexus_pharmaceuticals_inc._cl.mp3mp3/2026/04/06/melinta_therapeutics_llc_v._nexus_pharmaceuticals_inc..mp32606TrueFalse11Next case for argument is 25-1281 Melinta Therapeutics v. Nexus Pharmaceuticals. May it please the court. For the 802 patent, the district court first erred by administering in such a way as to override the consisting of claim term in the asserted claims. It's a legal issue where consisting of is not disputed between the parties, what that means. It's controlling authority about that issue. And the court was therefore right to limit the term consisting of to the three excipients, three ingredients listed in the claims. The trouble arose because the court, when looking at the word administering, rather than just say this is what the claim says to administer, is that composition, let's look at other world evidence regarding extrinsic information about how experts testified regarding the usage of the drug in practice and work backwards to inform the claim construction, which was error. Specifically on Appendix 29, there is an assessment of expert testimony by the district court, which identifies Dr. Friedman, an expert by Melinta, testifying about how APOSA would use the product, and that was infringement testimony. And that's at Appendix 1515 is the transcript citation for that testifying material from the district court. That analysis was error because the court should not be looking at the commercial product, should not be looking at any usage, should not be looking at any of the extrinsic information, particularly whereas here the district court correctly construed consisting of and the specification used that, described that formulation and the claims used the terms consisting of three different places. The consequence to that consisting of usage is non-infringement because it's also undisputed that Nexus in its actual formulation does add additional materials in the form of a diluent or an IV bag that has other excipients that are not claimed, and therefore as a matter of law, because of the claim construction error, the finding should have been non-infringement and therefore the judgment of infringement should be reversed. So are you saying that the composition is really the combination of the components plus the diluent, or are you saying that the administration has to be viewed differently from the composition? I'm saying the composition does not have diluent in it, which the district court also said, and administering is that composition again without diluent in it, that's what the claim is requiring. Administering the composition without the diluent. Correct, that's what the claim requires. So even if no one would actually administer, I know you have a quibble with this, but if it's with the fact that no one would administer the infusion without the diluent, is to administration of only the composition without the diluent. Yes, Your Honor. That's your position. That's what they claim. Let me ask you a question. I'm thinking about different types of treatments. Take something really simple like Alka-Seltzer. You have a capsule, a little tablet. That's the composition, I assume, you'd agree. Yes. You drop it into a glass of water, either a big glass or a little glass, and then you drink it. Well, which is the composition at that point? Is it the water plus the tablet? What is being administered? Is it the tablet or what? I mean, how does that square with your argument? I would square it as follows, Your Honor. In that example, what the patient has ingested is the entire package. But if the claim had said take the Alka-Seltzer consisting of the Alka-Seltzer consisting of the solid components in the Alka-Seltzer, then putting it in water and drinking it, even if that's how that person does it, is not covered by the claim. But that's not how that's covered by the claim. So you're saying that it cannot be read that the diluent is simply a neutral feature associated with the administration of the product. Correct, Your Honor, because that's unfortunately the way they claimed it is administering is the verb that's used and consisting of is used or consists of is used three different times in the claim. And one reading the patent specification in the four corners of that sees examples of the formulation with only those components and nothing more, and there isn't a teaching in the specification that says this must be given with a diluent, which might change things, or that it only can be featured with a diluent. Wasn't there expert testimony that the composition had to be diluted before administration? Yes, Your Honor. And that was the non-infringement testimony from Dr. Chambers, which the judge here also used, the district court, as part of its claim construction, you know, to base the information about capturing the accused product. Yes, it has to be diluted to be used in the accused product's implementation, but that's what makes it not infringed. We don't believe that should be affecting the claim construction. So this patent covers nothing? This patent covers directly administering that composition. But the record shows no one does that. So it covers nothing. But that's the fault of the claim writers. The fault of the claim writers, you're right, Your Honor. That's the way they wrote it, with consisting of here used so emphatically, as compared to other patents and other claims that used comprising. All right. And that's the consisting of law. The second error on this 802 patent that the district court made was on including the calcium as a comparator for where there should have been a benefit demonstrated over calcium also, covered by the claim. Finding, however, that the claims were still enabled and written description applied, and making no finding on this issue on 112 for the injection site hemolysis limitation whatsoever. The district court. The argument is a forfeiture that you forfeited that argument. Understood. The forfeited portion of the argument that they're claiming is a short, but their argument that the other side also rebutted below at appendix 1162, spending all of a paragraph, most of a page on the argument. This was in the post-trial briefing. Yes, Your Honor. Post-trial briefing. So there was joinder on the issue, and they had witness testimony on the item as well, regarding what was their witness's opportunity to address the issue in Dr. DeVries, which was raised at the fact of the calcium comparison. Well, you didn't have any expert testimony. I guess I'm wondering, even if it theoretically was not forfeited, and you send it back to the district court, what's your record on just the written description part and comparator? You didn't have expert testimony, correct? Correct. We had the admission. You didn't make what seems to be at a minimum a fulsome developed argument with regard to written description, right? We disagree on that, but the degree of fulsomeness we believe is sufficient. Yes, Your Honor. In the Griffith testimony that's cited as well, the best record evidence is the testimony from the inventor that was the admission about A1825-26, where the inventor, Griffith, explained that there was no benefit of using magnesium over calcium as a combination product. Everybody agrees with that proposition, effectively. I mean, the whole patent is written about both magnesium and calcium. So they elected to claim only magnesium, having discussed at great length the advantages of bivalent and trivalent cations. And why is it then sensible to say, ah, but when they get to the claim, what they had in mind was magnesium better than calcium. There's nothing to suggest that they had that in mind. I don't see where that would be a sensible construction. That construction is not challenged, Your Honor, and that's Appendix 40. Well, I'm suggesting that we might be interested in challenging it. Understood. As wrong. Well, the claim scope, as construed by the judge, did include the calcium as a comparator. And we believe that was correct because the word choice that was not used on purpose was it just says without magnesium. It should have or could have said without magnesium or another cation, or it could have just simply said minocycline alone as the comparator. And there was nothing in the findings of fact, right? There's nothing in the findings of fact. So, I mean, there's no way. Forget whether we should remand it, but certainly here on appeal, we don't have a record to review. I'm having a hard time seeing that even if you've got a remand in the absence of any additional testimony or record evidence that the district court would be in a position to resolve this in any real way. Do you understand my point? I do. It may be limited, Your Honor, but I do believe it's sufficient to have the claim construction, Griffith's inventor testimony, and Dr. DeVries talking about the calcium comparators and, of course, the specification itself, Figure 1, Appendix 138, confirming the same thing about the calcium versus magnesium. You're talking about additional arguments that are made to the district court. I'm talking about what is currently in the record, in the argument, by virtue of the citations that were already in that section. And as limited as it is, the Rule 52 issue is that there were no findings on written description or enablement at all for this issue, not just this part of the issue. The district court clearly recognized the argument was made on Appendix 121. It's identified as argument number one. But then on Appendix 123, that argument is skipped, and Arguments 2, 3, and 4 that the judge listed are then addressed. So there's just nothing on it, and therefore it should at least be remanded for that attention to make sure that that claim construction is applied to the evidence that had been presented. Third, as to the 105 patent, there is a written description and enablement issues regarding the osmolality being less than 500. That claim scope is zero to 500. That's what all the experts were testifying about at trial. The experts gave examples of pure water as an extreme example of a zero osmolality product that would be dangerous to administer. All the experts agreed that there is a number that is too low of an osmolality that's included within the range zero to 500, but no idea what that is. Why isn't it appropriate, more appropriate, to view that osmolality less than about 500 as a negative limitation? Which is to say, we don't care about anything about osmolality except that just don't go over 500. And we're not claiming any particular osmolality, we're just having a negative limitation, just don't go over 500. Why wouldn't that be a perfectly reasonable way to read this, which would not invalidate the claim? Your Honor, I believe that would be a different claim, because then the claim term would say, not exceeding 500, or we're in the osmolality. It says less than about 500. I don't know how that is different from yours. Not exceeding less than, same thing. But there's a slight difference. There is a slight difference. One would cover 500 exactly. I guess that would be true, too. But here, in terms of the 500, because it's a range claim, you're getting into the range, even if it's- I wonder. It isn't a range claim by its terms. It just says, don't go over 500. It's like saying, don't raise the temperature above the boiling point of this composition. That doesn't mean that I claim everything down to absolute zero. I think that, again, I believe that's a different claim, Your Honor, where there's an affirmative instruction to not do something. Here, if the range is where the- It's not talking about a range. It says, osmolality less than about 500. It's not saying from 0 to 500, or 150 to 500. I believe that's a range, and it consists with the law on a number being a benchmark or threshold. If it's above a number or below a number, like in Maxil, it could be above a threshold number, and the instruction would be just go above it, but it doesn't necessarily require one to go to infinity. Nonetheless, that's what the claim scope does address, and therefore it should be included. If I go to the restaurant around the corner, Cheesecake Factory, which has a menu that consists of about 50 pages, and one of those pages says every plate or every sandwich listed on the sheet is less than 500 calories, do you think that I'm going to assume that something on that sheet is 3 calories or 30 calories? Perhaps not. It's Cheesecake Factory. We don't know where the line is to be drawn, though, either. You had expert testimony. Wasn't there expert testimony? There was no expert testimony on where that line is to be drawn. The expert testimony was that it should be, one target should be around 300. That was Dr. Klibunov at Appendix 1883. I saw it. Okay, but you're missing examples from 0 to 150, right? 0 to 150 is what's missing, and as to that area, Dr. Friedman testified on Appendix 2130 that there can be too low of an osmolality, and Dr. DeVries testified at Appendix 2267-68, again, that there should be a hypotonic range, but we don't know what that is, and Malinta referenced a document, the Broadhead article at Appendix 2570-71, that, again, said there's a hypotonic range that can be dangerous, which is included within the scope of the claim, and here, there's no teaching about how to avoid it. Okay, maybe I'm missing something, but didn't your own expert concede that lower osmolalities would not work? Wasn't there testimony from your expert? That would not work. Yes, that would not work. Lower osmolalities would hurt the patient, and it's not that they couldn't be formulated, it's that they would hurt the patient, and then they were administered, and that's what made it a problem that it was still claimed as part of the method of treatment to give those low osmolality formulations to a patient. But wouldn't that testimony also support a conclusion that that wouldn't be covered? There's no need for written description or enablement because that range is not realistically covered? No, Your Honor, because we don't know what that range is. To this day, we don't know what range is and is not covered, and it's left to a person of awareness, skill, and the art to test it and to come up with it, and it's an example, therefore, of over-claiming, because had there been guidance about what is an appropriate osmolality and what is not an appropriate osmolality, that would have been different, or had the claim just matched what they actually tested, which is the range is above 150 to 200. Otherwise, what we're doing is we're leaving it to a person of ordinary skill and the art, which the Alza case said cannot be done for the case of written description and enablement. But let's say we look at the record another way, where there were two examples given. One was 275 to 375. We know that that's in, and the other was 150 to 250. So that kind of indicates what the bottom range is, which is 150. Had they claimed it that way? Yes, Your Honor, but they didn't. And that leaves us with a fourth point about the pH range, which is a similar analogous example of over-claiming by claiming the entire range of pH 4 to 7, when the specification itself confirms that that range does not work for all kinds of patients. You're not making a written description argument with respect to that limitation. For that one, it's enablement, because the information that's given is basically a roadmap for how to do further work and research to identify what formulations might work. And this is a question of enablement here. Yes, Your Honor. And when we consider enablement, we look at the patent or the claim at the time of filing. Yes, Your Honor. And at that point in time of filing, the patentee claimed the full scope. We have to look at the full scope of the claim in order to fully understand what was claimed at the time of filing, correct? Yes, Your Honor. And here, even those danger points that we're talking about, those were claimed. Exactly, Your Honor. And so that's why we believe those are invalid. And especially with AK Steel, looking at the specification and making exactly this kind of analysis should result in the same finding. So if we were to just look and look at the claim and say, well, we're not going to consider, we're going to allow, or we're going to buy into the argument that a person of ordinary skill would not go down into these danger zones of the range, that would be a failure on our part to not consider the full scope of the claim. If we're talking about the pH range, there's the issue of going too high to lose the stability of the claim. And yes, that would be a failure on the part to ignore the specifications, which is showing what should not have been claimed and yet was purported to be claimed anyway. That's what makes it invalid. Yes, Your Honor. I'll reserve the remaining time. Thank you. May it please the Court. Damian Dombrowski. Go ahead. May it please the Court. Damian Dombrowski for the appellees. I just want to emphasize. Sorry to interrupt, but I forgot to ask your friend a kind of ministerial question. In order for your friend to prevail, does he need to prevail on both the 802 and the 105 patent or if you win on either one of those patents? Is this case over? This was the first thing I was going to say. Oh, sorry. No, there are no overlapping arguments or issues between the two patents here. So if the Court affirms on either patent, it's enough to affirm the injunction. These stand together? I'm sorry. These patents stand together? No, none of the arguments or issues overlap here. But the expiration dates for both patents are the same? Correct. Okay. Correct. And I was going to take the arguments in the same order that my friend addressed them. And I'll start with the claim construction argument regarding consists of. And my friend referenced the factual finding that the district court made at appendix 29. And I want to sort of walk up to that because I think that's the key finding. So I think we're talking about the same relevant portion of the appendix. The defendant here is only looking at the claim language, but the district court correctly construed these claim terms in view of the claim language and the actual examples of the claimed composition and specification. The poser would focus on the composition recited in the claim and understand that it's a specific minocycline composition having the three recited ingredients. But also I take it containing a solute, right? So it's a solution, an aqueous solution of minocycline. So when we talk about the three components, so there's the three starting components, but you add this aqueous solution. Not the diluent, but the aqueous solution, which complicates things a little. You want to explain where that fits in the composition characterization? Absolutely. So you're correct. The claimed composition is a solution of minocycline magnesium cations in base. And what I'm saying here attracts the district court's analysis as well. A poser would look at the actual examples in the spec of that composition. So having those three recited ingredients in an aqueous solution. And would see that the spec expressly describes those examples of the claimed composition as the reconstituted solution in a very small volume of water. And a poser would understand those are examples of the composition that's intended to be intravenously administered in the claim. So which is the composition? Is it the pre-aqueous solution or post-aqueous solution? Setting aside the diluent for now. Right. Post-aqueous. So it's after you've reconstituted the lyophilized solid. So the district court, the specific factual finding I want to emphasize here at appendix 29. The district court found that all the evidence, and this is from both sides experts, strongly indicates that the poser would understand that those actual examples in the spec of the claimed composition cannot be injected straight into a vein. They must be administered through an IV bag in which they get mixed with this diluent. Why does that change the result here? I mean, all that demonstrates, as everybody agreed, this composition is not workable. I mean, why wouldn't that be the conclusion to take away? All the experts say this couldn't work without the dilution. Why isn't the result of that, that this composition is unworkable and patent owner misses out? Well, we think the experts agreed that a poser would view those compositions as being what is used in the claim and would not see any tension there because the spec also describes this process of further diluting the reconstituted solution in order to administer it. Well, how do we use that? I mean, it's troubling. I mean, if you have 15 steps in a claim and there's one crucial step that's missing, but every poser would say, well, we know necessarily that that would have to be an interim step in the process in order for it to work. So we just rewrite the claim to include that. I don't think it's rewriting the claim, and I don't think it's missing any step here. I think the poser looking at the administering step, the single step of administering in the claim, and then looking at the actual compositions, the examples of the composition that's meant to be used in that claim, along with the spec language about diluting in order to administer, would understand that the dilution is part of the administering of that composition that's exemplified in the claim. And I want to emphasize, too, that that factual finding that the district court made there was not based on later approved products nor on the accused product, the way my friend characterized it. The district court there in Appendix 29 cited both sides' expert testimony about the spec, and the district court actually cited and quoted their expert where he was asked specifically about Formulations 2 and 4 in Column 38. So that testimony is about the intrinsic evidence. It's about the compositions in the spec. It was not about the accused product and working backwards. And where the product label was mentioned in any of the evidence here, it was always made clear that includes the label for the prior art product, which is intrinsic here, and I'll touch on that again in a second. But I want to be clear here. Construing the claims as the way the defendant has requested, so to exclude diluting the compositions disclosed in the spec when administering them necessarily means that all of the specific embodiments of the claim composition in the spec are inoperative. An opposant would just not read the claim that way in view of this intrinsic record. And they cite the Chef America case in reply. They don't explain it much, but they cite it. In that case, this court affirmed a construction that rendered the claims inoperative only because the claims there were susceptible to only one interpretation, and that's just not the case here. It is the heating the dough to a certain temperature. But that's not the case here. There is a reasonable interpretation of these claims that consists of composition and administering that is supported by the intrinsic evidence. It's consistent with it and supported by it, and that does not render the disclosed embodiments inoperative. So we think it's not necessary here to construe the claims in a way that renders them inoperative. In this case, this court, in vitrionics, required highly persuasive evidentiary support in order to justify a claim construction that renders the preferred embodiments in the spec inoperative. I suppose you could have a composition that is intended to be ingested which has an enteric capsule around it that is anti-acid, and so it will find its way through the stomach without dissolving in the stomach, where it would be broken down, and is intended to get into the intestine. And you would naturally say the composition is the things that are inside the capsule. It doesn't include the capsule, which is merely a means of administration. That seems to me to be somewhat parallel to this situation, don't you think? I don't disagree with that. I think it's a different mode of administering, so there's lots of other complications. The mode of administering here is something that's necessary for intravenous administration, that is to say the diluent. And it isn't regarded as part of the composition simply because it is one of the things that ends up in the patient, as in my case of an enteric capsule with the composition inside. I think that's right. I think we are not of the view that there's any sort of contradiction between saying the clean composition is what's being administered here, even though the actual fluid that's reaching the patient may be mixed with a diluent. I just want to touch on the consist of language itself here, because there's a meaningful purpose behind that language based on this intrinsic evidence. It prevents other ingredients in the composition, like solubilizing and stabilizing agents, like oils and antioxidants, which the spec expressly describes as excluded and which are discussed in the prior art cited in the spec. The district court made a lot of findings about this in the context of obviousness. The district court found that the clean composition excludes those ingredients which the tetracyclic prior art taught were necessary. That's at appendix 113 to 114. So we are honoring the consist of restriction here in our position. We're not reading that out or eviscerating that. What do you say about this does not include magnesium limitation? Because as I read the clean construction adopted by the district court, it is unfavorable to you. And I don't find a way that the district court later came back and drew out the implications of that clean construction. What do we do with that clean construction? To give the background on that, we had proposed our construction in order to head off this confusion about the comparator because we think the spec and all the intrinsic evidence is clear about what the comparator should be. The district court chose to stick with the plain and ordinary meaning of does not include magnesium and did not further construe that term. But we're okay with the district court's explanation of the plain and ordinary meaning because he made clear that the comparator is the claimed composition but you take out the magnesium. That's what you omit to make the relevant comparison. Nothing in his clean construction explanation suggested that the comparator is some other composition where you take out magnesium and you put in calcium. So I agree he rejected our construction, but his explanation of the plain and ordinary meaning is consistent with what we're saying here about the proper comparator. And elsewhere in his opinion, he made numerous factual findings and applied the proper comparator in resolving the other issues in this case, including addressing their 112 arguments regarding this homolysis claim term, which he did not have a separate heading in his opinion for that section, but he did address those arguments at Appendix 34 to 36. And the focus of their arguments there were about the lack of in vivo examples. But nowhere did the district court say or acknowledge anything suggesting that he was even aware of this calcium comparator argument because it wasn't raised. And I want to touch on that waiver argument to Judge Post's comments earlier. Let me just go back a moment. I'm not sure exactly what your response was to the last sentence of the district court's discussion of the plain construction issue where the court says, the court cannot agree with the plaintiffs if your interpretation that does not include magnesium should be construed to exclude magnesium and any other metal cation. Why is that not pretty problematic for you? I think probably part of the problem here is that nowhere in the briefing or explanation to the district court was this calcium comparator argument framed for the district court. So the district court was sort of construing this in a vacuum based on the spec. And he perceived us as trying to broaden the claim. But we weren't. We were trying to head off this confusion. And a few sentences above that, I think he makes clear that and plaintiff's own expert witness confirmed that magnesium is the metal cation specifically chosen to be used in the invention, the only metal cation in the solution. So that's what's taken out to do the comparison. There's no suggestion there. Where's the sentence you're citing? Just above the one you just read. I'm on Appendix 40, beginning, and plaintiff's own expert witness. So I think it's clear when you read his opinion, he's imagining the claimed composition and then you take out magnesium to show the comparison. He's not suggesting that you open the door to some other comparator where you're bringing in whatever. And the extreme literal interpretation of a composition that does not include magnesium is like an ad absurdum. It could be a composition without minocycline at all or with some homolysis-causing agent in it. That would make no sense for a comparator in this sense. The whole point here is to be able to assess whether magnesium is reducing homolysis. And the way to do that is magnesium versus no magnesium. And that tracks all the examples in the specification, as you mentioned earlier, including the examples that they focus on in the briefing where both magnesium and calcium were tested. Even in those examples, there was also a minocycline-only formulation as the comparator. Are there other patents out there in which you have gone back to this spec and claimed calcium? I don't know if any of the pending claims have considered that as an alternative, but I think there's support here in the spec for... The spec deals with at least both magnesium and calcium and perhaps the indication trivalent cations. And has data to show that calcium also reduces homolysis. In fact, it looks like calcium does a little better. Their comparable was the evidence at trial, but I agree that the numbers look similar. So there's support in the spec for a claim like that, but I don't know if we've actually claimed that in this family. To crystallize our waiver point, to Judge Prost's comment earlier, written description is an issue of fact here. Nowhere in their proposed findings of fact that were submitted to the district court after trial did they ask the court to make any findings about calcium or a calcium comparator or anything having to do with this argument. So regardless of that one sentence in their post-trial brief, this is waived just because they never put in evidence or any proposed findings of fact for the district court. That would have been needed for the district court to find for them on this. I don't want to run out of time before talking about the 105 patent. The 112 arguments here, osmolality and pH, which are both unique to the 105 patent, they put in some superficial testimony on these arguments at trial. But we're arguing here that their evidentiary record was insufficient as a matter of law under Alcon v. Barr for finding of lack of written description or lack of enablement. They did not put in any evidence on undue experimentation or lack of possession, so they can't meet the threshold showing required by Alcon for either of these arguments. Their experts did not give those conclusions regarding undue experimentation or lack of possession. And they also did not testify regarding any of the underlying facts that would have been needed to reach those conclusions. Do you see the 500 osmolality, less than 500, to being a negative limitation or a range? Well, we certainly took the approach in the briefing of the open-ended range cases, the Anderson cases. Why isn't it a negative limitation? Well, all of the focus, or a lot of the focus at trial on this limitation, all of it, actually, was on that 500 number as a maximum level. No one focused on the rest, because it was supposed to be a do not go above this limitation. That sounds like a negative limitation. And I think that's a fair interpretation. It wasn't briefed that way, but the focus is on... So I didn't see that in the brief. We did not characterize it as a negative limitation, but we did emphasize that the focus was on the 500 as the standard of care. That's what all the practitioners agreed you don't want to exceed. No one's focused on going to pure water at the other end. That's not something any of the experts... And you cited cases that involved open-ended limitations, Anderson and Scripps, I think, and there may have been another. Right. And actually, of those cases, I'd like to emphasize the Regeneron case. Regeneron is the other case, yeah. Yeah, Regeneron is a written description case, but it cites the Anderson, which is written description and enablement. And the reason why that case is analogous to our case here is the limitation there was at least 98% of a protein being in a certain conformation. So it was a recited lower limit. But given the value being expressed there in percentage, there's a hard numerical ceiling of 100%, right? But this court affirmed the district court's finding that a POSA would understand that at least 98% has an inherent upper limit that's less than 100%. So it's analogous to our situation here where we have a hard numerical floor of zero because you can't have a negative osmolality. But a POSA would perceive less than 500 to have an inherent lower limit that's above zero. So we think that case is analogous here. It's probably the closest case in that set of cases, Judge Bryson. So what do you say is included in the scope, just what you're, the limits of what you're, the witnesses, the experts testify? The 150 to the 375? Well, those are the examples in the patent. And those examples, those two examples that have those ranges, there's no evidence that those two compositions are not representative of the full scope of the less than 500 limitation. They didn't put in any evidence on that. And the osmolality here is dictated by the ingredients in the composition. So they have not put in any evidence of an inoperative embodiment here. So having the claimed ingredients, not just pure water, but having the claimed ingredients and then having some inoperative osmolality less than 500, they haven't put in any evidence like that. Their experts never addressed embodiments less than 150. This is entirely in the briefing. But there's nothing in the record to show that there's some problem there from a POSA's perspective. How did the osmolality limitation find its way into the claim in the first place? It struck me in reading the claims and the spec that you didn't need the osmolality limitation. It was just, it's created problems for you, but I don't see why it was necessary. Was this something the examiner insisted on? I don't recall whether that, that's certainly not been in any of the trial court or the appellate court briefing regarding that aspect of the file history. I don't remember if that was in the initial claims as filed, that limitation. I agree it's not necessary for the inventiveness of the claim to have that osmolality because it was a known standard of care. I think I understand your argument as to what a person of ordinary skill would do with this claim, but the pen T could later bring a claim of infringement on a composition that has 100 osmolality, right? If it had the claimed ingredients that met the other limitations of the claim, it's potential, and the evidence here... That's because the scope of the claim is defined at the filing of the application of the pen, at the time of filing, not 15 years later or 10 years later. Correct, but the specification is not required to have examples of every embodiment within the scope of the claims, and the fact that the embodiments in the spec only went down to 150 does not mean that it couldn't... And there is expertise... In looking at the scope of a claim, we first look at the scope of the claim itself, not at the specification or written description. We have to take the claim the way the claim exists. Absolutely. And here it includes a composition of 100 osmolality. It would, and the evidence is that OPPOSA would understand from the examples that you can make it work and that you can lower osmolality less than 150. Our experts said that as well. We don't think there's a problem with that because there's no evidence that if you could have the claimed ingredients which dictate the osmolality... Would there be a problem of enablement at that point? No, because here... If you had a composition with the claimed ingredients in it in all the right proportions per the claim elements, it's possible that that could be at 100 osmolality and that would be fine. The fact that the specification doesn't have an example of that is not required. But there's no evidence here that you could not have an embodiment that has an osmolality of 100. The only evidence here is that pure water wouldn't work or something very close to pure water where what you're giving is so dilute it could be unsafe because it approaches pure water. I just want to finally touch on the pH argument. They point to the Table 30 in the pH 6 and pH 7 embodiments there. Those embodiments are soluble at 1 mg per ml and 5 mg per ml when you have the high molar ratios of cations. The expectation in the prior art was that adding cations to minocycline would cause insolubility. And what that table shows is that surprisingly at high molar ratios you can have it soluble at those concentrations. Everyone agrees here if it's soluble it can be intravenously administered. So everyone agrees on the link between solubility and administratability. What they have no evidence on here is a link between low concentration and somehow it becomes inoperative to treat infections. They put nothing on that at trial. The spec itself here says that at least 1 mg per ml of minocycline is sufficient and that's what the embodiment in Table 30 uses. And there's no claim limitation here on concentration. So they really have no inoperative embodiments on either the osmolality or the pH argument here. They didn't put in any evidence of that. Excuse me. Thank you. Thank you. Returning to the same order for the first issue on the 802 and the claim construction. Can I... Yeah, please. But just the ministerial question we asked your friend. Do you agree that the patents, as Judge Bryson asked, have the same expiration and that in order for you to prevail you would have to win on both the 802 and... To reverse, yes, that's correct, Your Honor. I do. For the reconstituted formulation, one thing I wanted to confirm as far as that claim construction on administering is that the specification does describe an aqueous solution that on the face of it could be administered. It's only on extrinsic evidence that the judge relies upon to conclude otherwise. Referring to A163, Example 13 has Formulations 1 through 4. Formulation 2 is the one that's reconstituted as one of the examples with water. Nothing else, no other diluents. And that's where the osmolality is also reported. So reading that, there's no information to suggest that that formulation shouldn't be administered. To the contrary... What formulation is that again? Formulation 2. To the contrary on... And what column? Column 38, lines 15 to 25. And specifically at line 17, the formulation is reported as, suitable for intravenous administration, end quote. So it doesn't leave to doubt in the intrinsic evidence what should be that particular term. And because of the consisting of usage that my good friend has not addressed is to say, why would we add back in something that was taken out by the choice of claim terms that had been used? There is no basis or justification to have that. How do we know that that formulation is administrable without a diluent? The phrase, suitable for intravenous administration on line 17. Right, but it doesn't suggest, or at least it doesn't say, suitable for intravenous administration even without a diluent. It doesn't have that additional phrase. Is the diluent recited in every other example in the patent where something is referred to as being administrable by intravenous injection? A diluent is described in the general background as another optional add-on, which could have been claimed. Yeah, but what I'm trying to get at is what about this formulation two that you've called our attention to tells us that the diluent is not implicitly suggested by that formulation? I think it's more important that it doesn't have the opposite implication, that a diluent is required or would be, particularly with that phrase. So is there anything about this language that I can come away thinking, aha, this does not, this is indicating it doesn't require a diluent. If there is, I'd like to know what it is. Well, then I would reiterate the osmolality reporting. Why is there an osmolality reporting for something that wouldn't ever need to be administered? That's the point of that claim limitation is to say this is the osmolality that's claimed, and if it's going to change into something else with the diluent, then that should be the osmolality reported as the thing to be injected. So that would be my answer to that question. Could the osmology claim be read on a composition that has an osmology of 5 or 10 or 0? It does. And there's no inherent lower limit, and that's one of the concerns that counsel raised, that there is an inherent lower limit, but there isn't. Unlike the case of Regeneron where purity, there's 100% physical limit, there is no lower limit. It's slightly above zero. There are ingredients required, but there's no amounts of those ingredients required. So yes, Your Honor, and that makes it invalid. Finally, on the pH limitation, the claim does not have, as my colleague agreed, does not have a concentration requirement. So it's broader than what actually works, and that's what gives this claim the impression of a goalpost or an analysis that requires further attention. There is actually an admission in the patent, appendix 191 that we identified in our briefs, column 33, lines 46 to 48. The interpretation of table 30 is that at higher pHs, introducing a cation can reduce solubility. And it gives an example of how the pH effect hurts the opportunity for solubility, and yet the claim still includes 7. And so the pH limitation here, including, is a much broader over-claiming analysis. Table 30 is an introduction to do experiments for a POSA to figure out additional information, and for that reason renders it invalid. In conclusion, Your Honors, there's the quid pro quo that had not been met here for the 105 patent, and as a matter of law for the 802 patent, claims destruction should be reversed as well. Thank you.https://www.courtlistener.com/api/rest/v4/audio/104116/?format=xml104116/audio/104116/people-v-breault/https://www.courtlistener.com/api/rest/v4/dockets/73150759/?format=xml2026-04-06T10:31:28.278745-07:002026-04-06T10:33:30.461044-07:00CBreaultPeople v. Breault874d13b2b852bb265b39901506b411bcd58afef2https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/7bd534f4-7c06-4db4-9d92-0b43d456704a/4-25-0383%20People%20v.%20Breault.mp3mp3/2026/03/31/people_v._breault_cl.mp3mp3/2026/03/31/people_v._breault.mp32341TrueFalse11all right you may be seated this is our first case and only case today this morning people of the state of illinois versus roland breault would the council for the appellate introduce themselves please you have to remember there's old guys up here you have to keep your voice up well there's at least one old and for the appellee you may proceed may it please the court council we have raised four arguments in this appeal if the court will permit i will focus today's arguments on issues one and three our first argument is that the state failed to prove mr breault guilty specifically that the evidence in this case was insufficient to meet the state's burden of disproving beyond reasonable doubt that roland breault acted in self-defense the most crucial evidence in this case is the video it was admitted as a joint exhibit by stipulation of the party significantly the state does not mention the video anywhere in their brief is this court is familiar there are six elements of self-defense that the state was required to disprove beyond a reasonable doubt the only one remaining at issue before this court is whether the use of force was necessary now the fact finder was the jury they saw the video correct what did the state need to say about the video forgetting the other issues understanding they saw the video they made their judgment as to what happened and to whether or not it was self-defense or if your client was the aggressor or became the aggressor what are we to make of that i mean you you're effectively saying setting the other issues aside you want us to reverse the jury verdict that's a heavy heavy burden it is your honor and the jury did in fact uh deliberate over multiple days and on the second day of deliberations they did note to the trial court that they were having trouble they asked the court what they would do if they couldn't come to a verdict but here our argument is that the jury did make its findings they were the trier fact we don't dispute but that it was unsupported by the evidence and that is as i mentioned crucially the video also my client's testimony and there was nothing that was not consistent with that account of events the video was consistent my client's testimony that he acted in self-defense and then additionally here the remaining eyewitness testified that she she denied seeing even one second of the fight she couldn't say who was punching who and uh additionally there was a forensic testimony and the expert gave his firm unrebutted opinion that the fatal wounds in this case would have my client was on the bottom and mr pendergast on top of them so that was wholly consistent again with the testimony of self-defense and with the video there was nothing that the jury heard here that would support its finding what about the fact that the jury sent that note out and brought to the attention that your client didn't have any wounds besides a little cut so that wasn't addressed by the trial court um that there was in fact evidence uh in the record that my client is the only one that had defensive wounds that was based on the evidence the photographs and the testimony of the forensic expert so the jury it's hard to speculate what that meant but it indicates that they seemed mistaken on that because my client did in fact based on the evidence have a defensive wound the only defensive wounds of either of the parties involved so on the issue of whether the use of force was necessary the video shows the sudden physical nature of the encounter in this case the size difference between the two men is apparent the record shows that mr pendergast was nearly six feet tall and 220 pounds described as much bigger and stronger and a difference of approximately 55 pounds larger than my client my client did not arm himself in anticipation of any altercation there was no evidence that of any idea that anything was going to occur and the record shows that he just routinely carried a pocket knife for work and carpentry purposes additionally i carry a pocket knife it took me a lot longer to get it out and use it than your client did perhaps however there is case law that we've cited that supports especially where there is a size disparity that in the sudden unfolding events a defendant is not expected to be infallible in his judgment that the issue is whether it was a reasonable belief and um here the apparent danger of great bodily harm again based on the size the use of force and the video also um contradicts any argument that mr pendergast had backed off or withdrawn because at the moment where my client is shown pulling the knife out of his pocket at first he does pull it out and hold it down by his side and push forward with the other hand not with the hand with his hand so apparently appearing that he is engaged and committed to an altercation not that he's backing off and finally the going back to the forensic testimony uh dr bloom again testified that there was no evidence that uh mr pendergast was for example trying to get away and stabbed you know from behind he said there was nothing to support that but the video shows that there's a significant gap between them mr pendergrass goes off the video and then we just see your client pulling his knife out the video shows some distance the testimony was that at that time the hallway is only uh three to three and a half feet wide so with two men in it uh a space of uh well i can't estimate but certainly less than three feet perhaps a foot not a sizable distance and the diagram uh which there was a a full model but also the diagrams are contained in the record on appeal shows the hallway uh that was the the route to get to the door the employee exit where my client was able to exit the building followed closely by mr pendergast so that at that point both men moved off as they moved down the so we don't know what happened in those 15 seconds but everything that is shown on the video is consistent again with my client's claim of self-defense so considering council don't we look at for purposes of review don't we uh look at this and like most favorable to the state and determine whether or not a reasonable uh jury or in this case uh could decide otherwise yeah and and doesn't doesn't that gap as described by justice cresceaux uh create a situation where a jury could make those uh determinations well again our argument is that there is some slight distance on the video but we know from the additional evidence that it was very small uh and that again as the video shows my client pushing forward and we know the diagram he had to get past to get down the hallway to the exit that uh mr pendergast is making the motion appearing to be fully engaged still at that point and it was the state's burden to disprove self-defense and considering the evidence in this case including the crucial video we argue there was simply no evidence for the jury to rely on council let me ask you about that it appears in your brief i just want to have you clarify you've mentioned the six elements of self-defense and it appears that you're arguing that the state has to disprove all six but isn't it correct that if they disprove any one of those six um then the claim of self-defense fails yes and at this point there's only one that's left in dispute on appeal but yes that is um so because the evidence in this case was critically weak and particularly on the issue of self-defense there were several errors additionally that we've argued were prejudicial and denying mr brialt his right to a fair trial in the minutes after the altercation mr brialt raced home went straight to his landline and called 911 because the cell phone had been damaged the jury never heard the recording of mr brialt telling the 911 operator joe just attacked me i need a police officer i ended up stabbing him i protected myself and he had stabbed he was going to kill me the state successfully got this 911 call excluded pre-trial yet in its rebuttal argument the state argued to the jurors if this person was trying to kill him would he have said he was trying to kill me i had to defend myself none of that comes out wouldn't you in the heat of the moment say he was trying to kill me that's the first thing you would say he was trying to kill me never says anything about that admits he never told the police he was scared or thought joe was going to kill him he never told the police these things that's something he invented all of claims were made in the state's rebuttal argument wait a minute those last remarks related to what he would have told the police that's not got anything to do with the 911 call the argument the state did mention in part the specifics from cross-examination of what my client had and had to police so yes the prosecutor also included uh some comments about you know he didn't tell police specifically he admitted that he didn't say he was gasping for air was choking well is there anything wrong with that not if it was limited but here the state went beyond that and argued he never said these things wouldn't that be the first thing you would say and then that's something he invented the state argued that for the first time eight years after the fact my client made up this claim of self-defense and told it to the jury and this misled the jury on what had actually occurred because the defense was barred from presenting the recording of the 911 call six to seven minutes after my client left and we know that because the recording was continuous and we can hear his drive home and direct walking directly and dialing 911 and this shows that my client did in fact say as among the very first things that he said in the heat of the moment that joe had attacked him he thought he was going to kill him and he had protected himself so again the state was well aware of this recording because it was played in open court at the hearing and the state had moved had objected to it being presented and successfully got it precluded so there was evidence the state was aware of that mr briel did not invent his claim of self-defense and it was prejudicial for the state to comment on this excluded evidence i can't recall did they object to that when it was presented at trial there was no objection we've raised this as a matter of plain error thank you and we can meet that burden because it was a clear obvious error and also because the evidence was extremely closely balanced in this case as we've of course argued the evidence was insufficient but certainly the evidence was closely balanced where the jury deliberated multiple days again expressed its difficulty and there was no evidence contradicting my client's claim of self-defense so this was the issue and due to the closely balanced nature of this the prosecution statements and rebuttal likely misled the jury on the crucial issue of self-defense and contributed to the jury's finding of guilt and under those circumstances plain error would apply this was a prejudicial error and we would ask this court to reverse if not outright on the reasonable doubt argument and remand for a new trial based on this or the additional two issues that we have raised in our brief unless the court has further questions on any of these are the remaining issues i would reserve remaining time for rebuttal thank you thank you this works thank you your honors may it please the court and counsel the standard of the reasonable doubt claim is that any rational trial fact viewing this evidence most likely in the light most favorable to the prosecution could have found the elements proved beyond a reasonable doubt and so one of these elements because the defendant did meet their burden of production on a claim of self-defense is whether this they had the state must disprove the claim of self-defense beyond a reasonable doubt they can do that by disproving any of the six elements of self-defense and here even the first elements whether or not the defendant was the aggressor the defendant has failed on that point because under the white case whenever a perilous situation arose from the defendant's own aggressive conduct he cannot claim self-defense here it's undisputed the defendant goes into the building where he's locked out he sets off the alarm and that prompts kathy dizik and her husband joe pendergrast show up in response to an alarm he knows he's going to set it off because he's been warned he set it off before he knows the code's been changed he wanted to get the new codes they wouldn't give him the new codes there's a business dispute involving the partners at this company there was a change of address made and so they changed the codes on the alarm system they put a padlock on this on the door so he can't get in the server room to shut off the alarm he even goes outside to try to cut the building's power and when that doesn't work apparently because there's a battery backup so this whole situation is the defendant's own making so like in the where a defendant so the jury has this background and understands this business dispute and why or what they infer the defendant is there for yes your honor all this evidence is before the jury so they understand the context of how this particular dispute in the hallway arose there's also a situation where the defendant is going around putting his phone in people's faces at this business without their consent without they're objecting to this they don't want this so when he does this to joe pendergrass that's an aggressive act particularly also when he sees joe he says in aggressive tone what are you doing here and so aggressive even mere words can constitute enough to make someone an aggressor but the whole constellation of facts here the fact that he's setting off the alarm knowing that kathy's going to be there and joe doesn't want kathy to go by herself so knowing that the defendant was there so that they knew what this was all about he's there he's not supposed to be there and so they show up and then he says an aggressive tone like what are you doing here and then he's sticking his phone in his face and that's when it gets swiped away when joe swipes the phone away that's the first physical contact but that doesn't mean that joe was the aggressor in this overall situation so i want to make sure i understand so the state's position is that the defendant being the aggressor is the overall situation and not uh when he has the knife and there's been a either a retreat or a separation of some sort between the person stabbed and the defendant well your honor i would like to get to that part a little bit later yes but yes your honor he also becomes an aggressor even if you agree with my first argument about him being in the building and sticking his phone in the face and saying in an aggressive tone what are you doing here even if you don't accept all that is making him an aggressor for these purposes then he also when there's that separation charges that was the word on 2478 charged joe he had a knife he did not think that joe had a knife but he charged towards joe and then he's also being cross-examined about that with respect to the video and the 3399 on the record very important part of the record is a cross-examination defendant by the prosecutor with respect to this video and the defendant's claim here is that he wants to go out the door that's behind joe well there's also an open door right behind him that he just went out minutes before and he even admitted that so he had a means of escape if he is an initial aggressor then he does have a duty to retreat he can't charge at joe with the knife because he wants to go out a different door that's maybe perhaps more convenient to him or some reason he can't take that knife and charge at joe if joe sees the defendant charging him with the knife now joe has a right to defend himself from the unlawful use of force if they are separated self-defense does not give you the right to charge at someone with the weapon particularly when the other person is unarmed one of the elements of self-defense they have to establish is that the defendant that joe was threatening imminent use of force well i'm not sure they said something about a little motion or something uh like with his hands but it's not like he's actively beating the defendant and then joe and then defendant takes out a knife and stabs him to stop the beating they're separated at that point so it's not necessary to take a knife and run at the person who just swiped a phone away so but my point about the initial aggressor issue is that even in the austin case so i'd say joe swiping the phone away even though that's the first contact between joe and the defendant that does not make joe the aggressor legally because in the austin case this was a case where the defendant goes on a bus he's trespassing on the bus he's not paying a fare he's trying to steal a bus transfer ticket and the bus driver then hits the defendant with a bus transfer punch so that's the first contact in that case but still in the austin case that defendant who goes on the bus improperly and is trying to take bus transfer tickets illegally that bus driver still is not the aggressor even though they make first contact and so that's the whole point is that just swiping away the phone that's being stuck in your face you're not allowed in self-defense to incite the use of force against yourself by doing something aggressive like sticking a phone in somebody's face if you do that and they swipe that phone away then you can't pull out a knife and stab them and say well i was defending myself from a use of force well first of all self-defense also doesn't allow you to do anything in revenge you're only protecting against further unlawful force so even if it was a battery to knock the the phone away you can't you have to have some other further threat of imminent use of force and then the last element which the defendant has to meet because this case involves the of deadly force by the defendant on joe he has to it has to be objectively reasonable here he's asking for full exoneration so it just can't be an unreasonable belief it has to be an objectively reasonable belief that in this situation he has to objectively reasonably believe actually subjectively and objectively reasonably believe that joe was not only capable but intending to inflict death or great bodily harm on him and that's a very important element in a self-defense case involving a deadly weapon when the victim doesn't have a weapon out at the time they're not threatening the defendant with a weapon they're unarmed and so is this person admittedly there's a little bit of a size disparity there but is this person who apparently like the the lacing y'all case cite in the state's brief there's no history of animosity between these people so it's not like he's been beat up before by by joe and he's like oh well if he ever gets hands on me again he's you know gonna break bones or something it's not like that they had no history of animosity and so that's a relevant factor to whether if joe swipes the phone out of his hand does the defendant really believe that joe is going to inflict death or great bodily harm on him with his bare hands is he even capable of that is he intending to do that and how could a defendant subjectively and not only subjectively but actually objectively reasonably believe that joe at that moment the defendant pulls out the knife that joe was capable and intending to inflict at least great violent harm on him with fair hands it is not reasonable and and when this court has to view the judgment the light most favorable to the prosecution then this court would have to affirm on the basis of the and reject the defendant's reasonable doubt claim but especially if this court finds that the defendant was the aggressor he doesn't have a right to self-defense and also he would have a duty to retreat under section 7-4 c1 and with that open door behind him he could easily left through that door and not had to charge at the at the victim with the knife um with respect to the other argument the the closing argument issues the prosecutor here did was they referred to the defendant's statements to police and they they talked about what the defendant did not say the defendant didn't say he was scared for his life or that he thought joe was going to kill him so he did not tell that part to the police and so that was essentially a fair commentary on the evidence and the prosecutor's entitled to talk about the evidence i agree but what about the other part well the 911 call see they're likening this sort of a situation to the prosecutors exclude the 911 call on their motion and then if the prosecutors had said well if this was really a case of self-defense wouldn't the defendant have called 911 if they had argued that to the jury then yes that would be a problem because they knew the defendant called 911 they got that kept out of the jury so but there's no mention about 911 in the prosecutor's arguments so it's not like they're criticizing the defendant for not having called 911 after stabbing joe so that that's why it's not a clear obvious error it's certainly not prejudicial enough to constitute reversible error this is a lengthy case and just a simple comment like that is when the defendant had a chance to talk to the police about what he thought joe was going to do to him and he had that opportunity and that was all in the evidence so i mean it's a it's still a it's still a fair argument for the prosecutor to make about what the defendant did and did not tell the police about what happened so that's why that the there's no actual mention of 911 in the prosecutor's argument so to say that that was reversible error to talk about what the defendant did and did not say to the police just because there happened to have been a 911 call that was not introduced into evidence because the prosecutor it because it was that's the defendant's second argument is it was actually hearsay and there's no abuse discretion with that so the defendant cannot admit self-serving statements because they're hearsay and they're not admissible for the truth of the matter asserted so for that reason then also whether the case was closely balanced they're asking for reversal under the plain error rule and so in order to constitute plain error to be prejudicial under the plain error rule the case has to be so closely balanced that this alleged error might have tilted the scales of justice against the defendant but the case has to be close now there there is some like a little bit of closeness in one sense and the defendant explains why he went down that particular hallway instead of going out the open door behind him but it's still objectively he's rushing at the victim with a knife so if that's on video and everything it's not like he can argue that he's not aggressive in this situation that he didn't become the aggressor by charging joe with the knife and so whether he's the credibility in other words of the jury could have disbelieved the defendant thought well maybe he was trying to get revenge for having his knife swipes his phone swatted away so he's going to charge at joe with the knife and they're going to get into a physical confrontation the jury could have thought that they could have disbelieved during the defendant's testimony but essentially the reason why defendant chose to go down the hallway towards the victim with his knife in his hand and an unarmed victim and then get in a physical confrontation with that knife the reason why the credibility that reason doesn't really matter the defendant did that so that's not disputed so that's why it doesn't really matter why he did that so any dispute or any closeness in the evidence the closest of the evidence mostly got to his mental state so he's charged with murder the jury can't really agree very well on that they come back with involuntary manslaughter so if anything the trouble reaching a verdict might have it done with the mental the defendant's mental state and reason why they ended up on involuntary manslaughter instead of murder so in that case they're not necessarily closely balanced no you can't cite the the jury deliberations for the reason why they might have trouble reaching a verdict when they're trying to use that as evidence of well maybe they were a little hung up on the idea whether this was self defense or not well it could have just been that they were unsure as to the defendant's mental state and so forth he's not guilty of knowing murder they find him guilty of a reckless crime like involuntary manslaughter and so if that's the situation then the jury deliberations really don't help them but it really just comes down to the the powerfulness of the evidence in the record there is a video the the defendant charges he's also responsible for setting up this whole situation acting aggressively and so for that reason to say that he's somehow that is close on the issue of whether he should be completely exonerated for this stabbing it's not close and that's why he cannot show the meet the requirements of plain error with respect to his issues and this court should affirm i'd entertain no other questions you haven't said anything something that counsel for the defendant said about size differential yeah i did your honor i did mention i said i thought there was some size differential um with respect to whether the defendant it would be reasonable for the defendant to objectively reasonable for the defendant to believe that joe was capable and intending to inflict great bodily harm without being armed himself joe didn't have a weapon that he's using there so if the size means that joe's more capable of of making great of great bodily harm he still has to show that it's objectively reasonable for the defendant to believe that joe was intending to inflict at least death or great bodily harm without a weapon and when there's no animosity previously between the two of them well what isn't the animosity inherent in him feeling that he needs to go with his wife back to the business to protect her or stand up for her or confront this guy that's there without permission i don't believe it's like a violence sort of situation i just said animosity i didn't say right i mean this is a contentious i was going to say this is a contentious business dispute it's going to litigation they're trying to dissolve the partnership it seems like joe can understand why he'd want to be there for his wife who has to go turn off the alarm and reset it because the defendant happens to be there after the business is closed i think it's fair to think that you know a husband would want to support a woman who has to go do that after a business is already closed and there's a you know another man there uh who may be causing trouble but that doesn't mean that they've ever had any history of violence it's not a situation where you can reasonably believe that this person joe is going to intend death or great bodily harm just because the only thing he's done at that point is swatted his phone out of the space and that seems like the thing that anybody might want to do if somebody stuck a phone in your face and in a contentious situation uh so it's not to think that joe was somehow displaying uh an intention of inflicting extreme violence on the defendant but just simply not wanting the phone in his face and that's at that point all he had done before the defendant charges him with a knife so so that's why you it's not objectively reasonable to believe that that you can inflict deadly force against an unarmed person it's very limited you can't just stab somebody who's unarmed to death and then claim self-defense when it's not objectively reasonable that that person was not only the joke would have to be the aggressor in that situation would had to have imminently threatened physical violence against the defendant illegally physical violence but also intended and be capable of inflicting at least death or great bodily harm without a weapon and that's just not reasonable under these facts so anything other questions i see none thank you for both the state argues that my client was the initial aggressor again for the first time on appeal and as we've argued in our reply brief and cited the supreme court case in henderson when a prevailing party has made a concession or they can't raise an argument that's inconsistent for the first time on appeal and here at the conclusion of all of the evidence the trial court said the facts that the court saw showed the decedent was the initial aggressor in this case and the prosecutor said this was discussing the jury instruction the defendant was not the initial aggressor agreeing and then argued it wasn't relevant and the court said i think it would be relevant if defendant is not the initial aggressor he has no duty to retreat am i missing something here and the state said no no okay i'm sorry so after the conclusion of the evidence the parties agreed that there was no evidence my client was the initial aggressor and where is it in the record that they agreed at page 35 56 and we say the state agreed because the court said there was no evidence no duty to escape based on the evidence it thought the state said the defendant was not the initial aggressor so they expressed their agreement with that um it goes on to the following page 35 57 as well um but in addition several of the things that the state argued are my client's right to be there well my client was a vice president of this business and he routinely worked there and the alarm codes were removed it was there was evidence without any court order so there was no basis to remove him from the building so the state's argument failed that my client didn't have a right to be there and i've already addressed any argument that my client became the initial aggressor again because of the video and as i've discussed the 26 13 to 26 minutes and 17 seconds where it shows my client pull out the knife and hold it by his side and it shows the decedent curling his fingers in a beckoning motion there's no indication that he appeared to back down he moves off the screen but my client moves off the screen as well the state also and i've addressed in the reply brief uh that the state mentions there was an open door but that is not an exit there's a doorway that my client could have moved through that goes further into the building and if he had you know taken a different route and gone through a different door but there was testimony extensive from the architect who made the model in this case that the only door that my client could have pushed to exit in an emergency is the one that he exited through the closest exterior door if my client had gone through the doorway as the state suggests there was a storage room that it was testified was very full and then you needed to use a key in the lock to exit so again this was a moment of 15 to 30 seconds and my client isn't charged with you know running through all of the possibilities of the closest or the best route of escape but he did in fact escape through the door that was the only one he could push in an emergency um the state in regards to the third argument makes a distinction that the prosecution did not use the words 9-1-1 but that is a distinction without a difference first a jury wouldn't be expected to distinguish between 9-1-1 and police officers and in fact in davis versus washington the united states supreme court noted that if 9-1-1 operators are not themselves police officers they're agents the concurring separate opinion used the term interchangeably police and 9-1-1 but more than that as we've argued the prosecution went beyond simply talking about what my client didn't tell police at the police station where he had explained what he was questioned they didn't get into all of the details and blow by blow it was a bigger picture conversation but in closing argument the state said that my client never said those things and asked the jury in the heat of the moment wouldn't they have said these things he feared for his life when they knew in fact that he had said those as some of the first things that he said counsel i want to go back and ask you about this initial aggressor and you keep saying that the state agreed to that now this is kind of going to dive into the jury instruction issue but the fact that the state wanted that other jury instruction doesn't that reflect that there is no agreement that about the aggressor issue doesn't that show there was never an agreement it doesn't in this case and that's because when the state so if i can step back for a moment the court initially denied the initial aggressor instruction because the court said that it didn't see any evidence to support it and when it was revisited the state did not raise the argument that my client was initial aggressor that there was evidence to support that the state argued that they should be allowed to submit to the jury that uh mr pendergast if if he was the initial aggressor that the jury should consider that and whether he had a chance to withdraw or things like that well that is not and we've cited cases in our brief that is not the inquiry for the jury the jury is only evaluating the defendant whether he was the initial aggressor it's not inquiry it's inquiry is not whether the decedent or anyone else was the initial aggressor it's limited to the defendant and that is why the state's position on appeal is still inconsistent because it never raised an argument below that my client was the initial aggressor so the reason that was given for the jury instruction based on whether or not mr pendergast was the initial aggressor was incorrect and the state doesn't raise that on appeal and that is part of our argument why we argued the so unless the court has further questions we would rely on the arguments made here today and in our briefs and we would ask this court to find based on review of all of the evidence that the state failed to disprove beyond a reasonable doubt that mr brial acted in self-defense and to reverse his conviction for involuntary manslaughter outright in the alternative we asked this court to reverse and remand for a new trial because he was prejudiced by errors that likely contributed to his conviction the exclusion of his statements on the 9-1-1 call as excited utterances the misleading rebuttal argument and the improper jury instruction and because this was a closely balanced case these errors all went to the issue of self-defense and likely contributed to its conviction thank you thank you for your arguments counsel we'll take this matter under advisement and rule in due coursehttps://www.courtlistener.com/api/rest/v4/audio/104115/?format=xml104115/audio/104115/mata-v-guerrero/https://www.courtlistener.com/api/rest/v4/dockets/72489788/?format=xml2026-04-02T11:32:56.152148-07:002026-04-02T11:32:56.152162-07:00CMataMata v. Guerrerod39eaeaf7bf795f154b8c37ac3f9b5994c5a607ehttps://www.ca5.uscourts.gov/OralArgRecordings/25/25-10526_04-02-2026.mp3mp3/2026/04/02/mata_v._guerrero_cl.mp3mp3/2026/04/02/mata_v._guerrero.mp31936TrueFalse0https://www.courtlistener.com/api/rest/v4/audio/104114/?format=xml104114/audio/104114/simmons-v-brotherhood-mutual-ins/https://www.courtlistener.com/api/rest/v4/dockets/72808051/?format=xml2026-04-02T11:32:08.774659-07:002026-04-02T11:32:08.774672-07:00CSimmonsSimmons v. Brotherhood Mutual Ins4ce606c5bc38064b7ad438957b7466e8f93c8dd7https://www.ca5.uscourts.gov/OralArgRecordings/25/25-30463_04-02-2026.mp3mp3/2026/04/02/simmons_v._brotherhood_mutual_ins.mp3FalseFalse0https://www.courtlistener.com/api/rest/v4/audio/104113/?format=xml104113/audio/104113/texas-captl-bank-v-govt-natl-mtge/https://www.courtlistener.com/api/rest/v4/dockets/71166290/?format=xml2026-04-02T11:31:17.438203-07:002026-04-02T11:31:17.438218-07:00CTexas Captl Bank v. Govt Natl Mtge678f701d0256af8bbd0f47c8172c1d47b5155fe1https://www.ca5.uscourts.gov/OralArgRecordings/25/25-10624_04-02-2026.mp3mp3/2026/04/02/texas_captl_bank_v._govt_natl_mtge.mp3FalseFalse0https://www.courtlistener.com/api/rest/v4/audio/104112/?format=xml104112/audio/104112/knife-rights-v-blanche/https://www.courtlistener.com/api/rest/v4/dockets/70597024/?format=xml2026-04-01T16:34:05.817367-07:002026-04-01T16:36:47.575197-07:00CBondiKnife Rights v. Bondi0aaec5a862b81a2ccdef1baa75e4a15261aaa562https://www.ca5.uscourts.gov/OralArgRecordings/25/25-10754_04-01-2026.mp3mp3/2026/04/01/knife_rights_v._bondi_cl.mp3mp3/2026/04/01/knife_rights_v._bondi.mp32907TrueFalse11Did y'all want a break? I'm sorry I'm not as good, okay? Did you need a break? You may proceed. Is it Mr. Schmutter? Yes, thank you, Chief Judge. Good afternoon and may it please the court. Daniel Schmutter for the plaintiffs. Millions of law-abiding Americans own the switchblade knives that Congress prohibited under the Federal Switchblade Act, the FSA. Knives that are legal to possess under the laws of 45 states. As such, they are typically possessed by law-abiding citizens for lawful purposes. That is, they are in common use. That forecloses the efforts of the United States to defend it broadband on possession, sale, distribution, transportation, and manufacture of these ordinary knives. Knives that differ from other pocket knives only in the single respect that they happen to use a very convenient and useful spring mechanism to open rather than some other means. In fact, many folks could not even tell just by looking at or even holding the knives, whether open or closed, that they are in fact switchblade knives. Notably, the government has wholly abandoned its standing arguments, presumably in recognition of how flawed they are. Well, we've got to talk about it because it's jurisdictional. The district court, reading the district court's opinion, the district court thought there was no standing here at all, but felt that it was bound by our Umphress case, I guess. That was a First Amendment case, and when you're bringing a facial challenge in a First Amendment case, sort of a relaxed injury requirement, a pre-enforcement challenge, does that transfer over to the Second Amendment, and if so, what's your authority for that? Judge, it does transfer over to the Second Amendment, and I don't know that there's specific authority for why Umphress applies to the Second Amendment, but what's important about Umphress No, I'm just saying, why do we relax what is required to show the credible threat of enforcement in a non-First Amendment context? I don't think the court needs to relax the credible threat of enforcement. Well, wait a minute, wait a minute. The Supreme Court's made it clear in lots of precedent that in a facial pre-enforcement challenge, there would be this relaxed requirement. You could basically presume the credible threat of enforcement in the First Amendment context. It doesn't strike me as necessarily given that it transfers over to the Second Amendment or other amendments that may be at issue, and a reason I ask about Umphress is I think if you remove Umphress from the occasion, the district court went the other way, and maybe we should too. Your Honor, we're not asking the court to relax the requirements of standing. We think that the record demonstrates standing without any kind of relaxation of the requirements. We have multiple examples of enforcement in the past. We have the enforcement against Mr. Lumsden. Well, but they're dated. They're very stale. Well, Mr. Lumsden was 2020. So he was, I guess his house or business both were raided, and there were like six statutes at issue. 1242, I think the district court maybe even said it was an outlier. It was in there, to be sure, but that doesn't help you for 1243 at all. Well, for 1243, we have Mr. Shedd. I mean, Mr. Shedd lives on the Muskogee. Well, that sounds like an as-applied challenge. You're making a facial challenge, correct? We are making a facial challenge, but it's not— And nobody's ever enforced 1243. Well, Your Honor, Mr. Shedd lived in Arizona. He owned a switchblade knife. He then moved— I realize he apprehends. He's fearful of possessing one. He wants to possess one in Oklahoma. But, I mean, again, you have to show a credible threat of enforcement, and it's never been done. Well, Your Honor, the one important aspect of this is that the government doesn't disavow enforcement. And under UMFRS—and I know that we're not—the disavow aspect of UMFRS is critically important, because this is not a statute that's never been enforced and has gone into disuse. I mean, they enforce it when they want to. They enforce it from time to time. They enforced it against Spyderco, and I know that Spyderco was a number of years ago. But that was a different statute. That wasn't 1243 or 1242. Well, that wasn't—I understand, Your Honor. But this—it reflects an attitude of the government towards switchblades. They use the statute selectively when they want to go after particular companies or individuals. But you don't substantiate that with regard to these statutes. When—the Spyderco example is actually a very good example. The Spyderco example shows—because what came out of Spyderco is what's called the Spyderco Acknowledgement, the idea that now everybody in the industry has to sign and acknowledge that they're in compliance with the FSA. So it had a sweeping impact that exists to this day. Everybody has to comply with that. But that goes back to my question. How do we quantify or evaluate the threat of enforcement in the Second Amendment context? It is simply the idea that someone is at risk. For example, in addition to Mr. Shedd, we have Mr. Folliter and we have Mr. Arnold. They hold federal firearms licenses. They're FFLs. Now, Mr. Folliter has testified in the record that he goes through the federal possessions and federal territories that under 1243 would be prohibited for possession and sale. And so he can't take the risk— But that's not the threat of enforcement. Well, he can't take the risk that he loses FFL. If he— So the credible threat of enforcement, we're presuming it. The credible threat of enforcement is the government's general approach to this statute over the years, the fact that they use it selectively against targets that they disfavor, and the fact that a person should not be expected to lose their FFL or risk the loss of their FFL when the government won't say, we're not going to enforce this. So it's the disavowal of prosecution. It's the disavowal, it's the risk, and it is the pattern of enforcement over the years. It would be simple enough for the government to say, we don't really think 1243 is a statute we want to enforce anymore. We're all about 1242. So, you know, we're just not going to enforce 1243. They're not going to say that. They'll never say that because they want to use it when they want to use it. The pattern of enforcement that's in the record shows that they use the statute and they want to go after someone— When's the last time they convicted anybody or prosecuted anybody under 1243? I don't have that in front of me, Your Honor. I apologize. I didn't get it from the briefing either. I mean, that's just it. The 1242 convictions or prosecutions are the ones that you all cite, but they're at a minimum 10-plus years old, and you've got three or four or five in the first decade of the century, something like that. Well, Your Honor, it's a simple matter of— But where's the case law that says that's enough for a credible fear of enforcement going forward, pre-enforcement facial challenge? I think under Lujan we'd have standing for sure because we don't have to show that they are enforcing it all the time. Disavowal certainly gets us there, but it's a pattern of enforcement of the statute overall. 1242 and 1243 are part of an overall regulatory scheme. The only difference between 1242 and 1243 is they deal with different aspects of the industry. They go after different aspects of the conduct, the behavior, possession, the sale, the distribution, and so they're split up into two different provisions. It's the same regulatory structure, and so we're not required to show that they specifically have enforced each and every subsection of the regulatory structure to have standing to challenge it. It is their regulatory scheme, and of course the court can ask my friend on the other side why they won't disavow enforcement of 1243 because if they do— Well, we may well ask that, but you're hanging a lot on Mr. Shedd, and the only thing he would be prosecuted for, as I apprehended, is possession. Well, Mr. Shedd would be prosecuted for possession, but— To the extent that the district court found standing based on Mr. Shedd and maybe some of the other members, I guess the fellow whose home was raided in Colorado, I mean, you're looking at possession, and that hasn't been done. Again, I didn't see that under 1243 anywhere. Well, so Mr. Shedd lives in Indian country. Mr. Folliter travels to and sells knives in the various federal areas that are covered. Mr. Arnold travels in those same areas. Mr. Kaufman, Mr. Warden, they all travel in these various areas. They've all testified that they enter these areas and are subject to enforcement in any of these areas as they move about. So all of the plaintiffs have various aspects of standing for the different sections, including 1243 and 1242. Assuming, arguendo, that your clients have standing, could we talk about the facial challenge? Because it's my understanding that you're only bringing facial challenges. Is that correct? Are you bringing as-applied challenges on behalf of any of your clients? So, Chief Judge, that's a very good question, and let me give you an answer. So the challenge to 1243 is strictly a facial challenge. The challenge to 1242 is technically an as-applied challenge because we don't challenge 1242 to the extent it impacts importation into the country from outside the country. On its face, 1242 implicates importation. It prohibits importation. It doesn't talk about importation, but the language of 1242 naturally implicates importation, and the CFR regulation specifically said that 1242 prohibits importation. We don't challenge that. So technically, because it doesn't go to the entire face of 1242, it is technically as-applied, but it behaves analytically like a facial challenge. Probably the best way to describe it is the Eleventh Circuit called it a quasi-facial challenge in the AFSCME case, AFSCME versus Scott. Why is it a quasi? Why isn't it just an as-applied challenge? Because the Supreme Court in Doe versus Reed talked about how as-applied and facial aren't always strict categories. Sometimes claims can share characteristics of each, and the Eleventh Circuit cites Doe versus Reed in sort of coming up with this phrase, That's very difficult for remedies and things, whether you get to permanently enjoin the whole statute or whether it's just as certain uses that are inappropriate. It's just this quasi thing. Have we adopted that? I haven't seen it in this circuit, Your Honor, but here's why it's not difficult. Wouldn't you just be making a facial challenge to a portion of the statute? Yes, but, Your Honor, normally when you're making a facial challenge to a portion of the statute, you have subsections, right? So if 1242 had A, B, C, D, E, A between states, B between territories, C, right? And D is importation from a foreign country, then we'd say, of course, it's a facial challenge to A, B, and C, but we don't challenge D. It's not written that way, which is where this concept of a quasi-facial challenge comes from, why the Supreme Court described it in Doe versus Reed. It's really based on the relief that you seek. That's what the Supreme Court has said. We're talking about relief. So, Judge Wilson, you're correct that it really behaves like a facial challenge. It's basically we're challenging every aspect of 1242 except the importation ban, and so as to every other aspect of 1242, it is a facial challenge and should be treated as such. But aren't you seeking a permanent injunction against enforcement of sections 1242 and 1243? Except as to importation. Okay. So does that mean you don't think that 1242 and 1243 have constitutional applications ever? 1243 has no constitutional applications. 1242 has no constitutional applications separate and apart from importation. We have no opinion on importation. What about military bases, federal courthouses like this very building and federal prisons? So that's not how to analyze a facial challenge. A facial challenge goes to the language of the statute. So, for example, in Bruin, if it was looked at that way, the case would have come out the other way because New York could have simply said, well, you can't carry in a courthouse in New York. In some places. Right, exactly. But Bruin didn't come out that way because that's not the right way to look at a facial challenge. You have to look at what the statute itself actually prohibits. This statute doesn't have anything to do with courthouses, military bases. I thought that was exactly what they did in Rahimi, a case with which I was more familiar than I ever wanted to be. I mean, they cited Salerno, if I remember, and they said the first thing you're supposed to do is effectively see if there's any application in which it would be valid. And I cannot begin to see how this section 1243 wouldn't be valid as prohibiting switchblades in military bases, courthouse, just like the chief judge just said. So in Rahimi, the way the court applies Salerno is it applies it as to the language and faces, the elements of the offense. There's no element of this regulatory structure that has anything to do with military bases or courthouses. Sure it does. It says federal lands, federal properties, federal facilities, and then it cross-defines them and it breaks it out specifically. Correct. But the reason you can't carry on a military base is because it's a military base, not because it's federal. Well, in Indian country, there's a tribal council hall, government buildings, those kinds of things. You're saying that they can't be prohibited there either? No, we're not saying that. But that's what you are saying in a facial challenge. There's no application that would be upheld. In a facial challenge, we are saying that there is no constitutional application of applying the statute on Indian country because of its Indianness. In other words, the reason the statute bans possession in Indian country is because it's Indian country without regard to the uses on Indian country. Again, go back to Bruin, right? There's no way Bruin could have come out the way it came out if you parse a facial challenge this way, because there are many places within New York where you can't carry a handgun, courthouses, police stations, all sorts of places. And nobody argued that that prevented a facial challenge in Bruin. It's exactly the same here. It's the Indianness that matters as far as the facial challenge. It's the federalness that matters, not militariness, not a courthouseness, if the court understands what I'm saying here. It's critically important because that's what the Ninth Circuit did in knife rights versus Bonta. And it was incorrect. The Ninth Circuit was incorrect. And that would be the incorrect way to look at this. Because if the question the court is asking were correct, it would be impossible to mount any facial challenge under the Second Amendment, because you could always find some corner of a place where possession of an item would be prohibited. It would be impossible to bring any facial challenge to an arms ban, because there's always some place or some circumstance where it would be unlawful to possess that thing. But that doesn't go to the functioning of the challenged law. It's how the challenged law functions that defines whether the facial challenge can be brought or not. Thank you, Mr. Schmider. You've saved time for a rebuttal. Thank you. We'll hear from, is it Janda? Mr. Janda? Yes. How do you say? OK, thank you. Thank you, Your Honor. And may it please the court, Sean Janda for the federal government. The Federal Switchblades Act's restrictions on automatic switchblades lie at the intersection of three distinct principles, each of which independently confirms the restriction's validities. I'm happy to walk through each of those three historical principles. But just to get them on the table, first, we have the very well-grounded historical principle that states that the state or the federal government now may regulate concealed and therefore inherently concealable weapons like the automatic switchblades at issue in this case. Second is the similarly well-grounded principle that the Second Amendment does not extend to weapons that are adapted for criminal misuse. And then third is the principle that modest restrictions, such as those on the manner and mode of operation of weapons, do not reflect an infringement of the Second Amendment right. I think taking the confluence of those three principles together in this case provides more than ample support on the merits for both Section 1242 and Section 1243. Does the government consider 1242 to be a moribund law, given that it has not been charged in 15 years? I'm not sure that the category moribund has any particular historical or legal significance. What I can tell you is that, obviously, it is not charged often. Does the government disclaim that it can charge 1242 today, tomorrow, the next day? No, we think 1242 and 1243 are constitutional. We think we could charge them. And you're prepared to charge them tomorrow? Any violations? We have certainly not disavowed charging them. We think we could charge them. I'm not saying there's some investigation where charges are about to be made. And what is the date 1243 was done? 1242 is 15 years, right? Correct. What's 1243? So 1243, the record, if you look at ROA 1265, it cites a declaration from the Executive Office of the United States Attorneys, which says that as far back as the data goes, which is 2004, we have no reported prosecutions of 1243. And so at some point before 2004, there may well have been them. But the EOUSA data just doesn't. If this was a First Amendment challenge, would that be good enough for standing, if this was a First Amendment challenging? Yeah, I mean, so we think that in the particular circumstances of this case, the plaintiffs have standing. I think they would have standing probably even more clearly in a First Amendment. In a First Amendment, they would definitely have standing. And you think they have standing here? We do. And I will caution the Court. I don't think you need to relax the usual test in the way that it sometimes is relaxed in the First Amendment context. Why wouldn't we have the same sort of concern for chilling in the Second Amendment that we have in the First Amendment? I mean, I think that's a doctrine that is developed in the particular context of the First Amendment. I mean, there are a number of doctrines around. Right, it has. But we've had a great emphasis on the Second Amendment in the past decade. Why wouldn't we have the same sorts of concerns for chilling of Second Amendment rights that we have for First Amendment rights? I mean, I think chilling is sort of intimately connected to expression. And there's a whole set of doctrines. There's over-breath doctrines. There are sort of vague doctrines in the First Amendment. You could have over-breath doctrines and things, even in the context of different places and applications of how you know where you can and different types of knives. There could be confusion and vagueness. You could have all kinds of those theories. Just as a conceptual matter, why couldn't you have a chilling doctrine for Second Amendment? Yeah, I mean, let me say, I think in this case, the simplest answer is that because it's not necessary and plaintiffs haven't asked you for it. Because you believe they have standing. You believe they have standing because why? I mean, I think I would point the court to maybe the sort of combination of four things in this case. I mean, number one, I think it's very clear that they wish to engage in conduct that is absolutely prescribed by the statute. And they've made that clear. They've not been wishy-washy about it. They're very intent. Yes, and they have, I think, very clear declarations with very specific examples. Then why in the world did we litigate this to the hilt in the district court, not once but twice? I think the first case in the district court, the one that Judge O'Connor dismissed, the declarations were much more challenging to get them to standing. I think they came back with new and better declarations. And then we made the arguments in district court. I mean, I think as Your Honor recognizes. But you partially won the argument in district court. Correct. And I'm not saying they're unreasonable arguments. I think they're quite reasonable given the lack of. But the government changed its position. Correct. We took another look at this. I think we. So this is what's caused us a lot of time and attention on this. Is that right? On the standing question, yes, Your Honor. And then can I just go back? I think the other three things I'll point to. I mean, number one, this is a criminal statute with criminal penalties. So you shouldn't have to go to jail to prove you're right? Is that? I think it certainly points in that direction. Again, I'm saying that. This is an interesting argument where you're both arguing that they're standing. And you're making the pro arguments against the argument. But keep going. This is helpful. Well, do you agree that we should just remand this to the district court then in light of your concession? I don't think you need to do that. Well, let me say two things. I mean, number one, the district court did find standing as to 1242. And so I think the merits holding on 1242 is up in front of this court squarely. But as to 1243? As to 1243, I think if this court agrees with us about the defense of 1242, it applies, I think, sort of exactly the same way to 1243 because it's about the knives themselves and not about the particular regulations. Can you go really quickly through your four factors, though? You were doing such a good job. Oh, yeah. So I think the four things I would say. I mean, number one, they very clearly have established an intent to engage in conduct that we all agree is prescribed by statute. Criminal conduct. OK, go ahead. Number two, it's a criminal statute with criminal penalties. OK. Number three, we are not in a position to disavow enforcement. I am, like, affirmatively telling you we will not, have not, are not disavowing enforcement. And then number four, I think one particularly special thing about this case is that at least 1242 operates on manufacturers and distributors. And so I think what the plaintiffs would say is like, look, even if they were willing to sort of take the plunge and buy the knives interstate, they may well not be able to get them because. The whole commerce will be chilled. Well, because, right. So other, the people who they want to buy them from, I think is what they're getting at. Yeah, they won't have making, they will stop making them because it's not. Yeah, or they won't sell them interstate because they want to comply with the federal law. And so I think if the court feels compelled to say much about the standing issue, I might point to those four things kind of all coming together in this case as sufficient to give the plaintiff standing. Anybody else have any more on standing or you want him to go to merits on 1242? Merits on 1242. Yeah, so then on 1242, I'm happy to talk about the facial challenge aspect as 1243 as well. But on 1242, as I think we really have these three quite well-grounded historical principles. I mean, the first one is there is this extremely well-developed history of regulating sort of first the concealed carry of weapons like dirks and daggers. And then that develops into regulation of the carry at all of concealable weapons. But the government didn't talk about this in the district court, did it? I mean, I think we did have a merits defense along these lines. But did you talk in detail about the well-developed history? Did you? I think we probably developed it more in our briefs on appeal than we did in district court. I think in district court, we made a number of other arguments. Does it matter whether you actually developed it or not? I don't think. I mean, plaintiffs certainly haven't made an argument that we forfeited these arguments. My memory is that we certainly did make the historical arguments. I think Amaki mentioned something about that. Yeah, I think we've maybe rejiggered how we've sort of categorized the historical traditions. Well, am I reading the district court's order and opinion incorrectly? The district court sort of stopped before Bruin Step 2 and said, well, this really isn't a ban or prohibition. It's sort of a regulation. It's not like Reese. It's like our other recent case, which is escaping me at this point. McCrory. McCrory. And so there really wasn't a Bruin analysis, a historical analysis of these provisions, correct? Correct. Should we just remand this for a Bruin analysis if we think Bruin applies? And also for whatever, the 1243 with the standing concession? Yes. I mean, I don't want to say yes, you should. I think the arguments are briefed in front of you. And if the court sort of wants to decide what I think really are purely legal arguments, the court is certainly in a position to do so. But the district court, I mean, just didn't do the historical analysis that we think this court ought to do. And it didn't engage with the merits of the 1243 challenge given its holding on standing. And so I don't think there would be anything inappropriate about the court. Do you think McCrory is not the right standard? I mean, just again, I think in taking another look at this, with McCrory and Reese as kind of the two poles that we're trying to navigate between, our view is that this restriction operates more like the restriction in Reese, particularly given plaintiff's evidence, or at least their assertions, that some of the plaintiffs are simply unable to acquire. I mean, Reese was the 18 to 20-year-old ban, right? And McCrory was the 10-day waiting period, or am I confused? Yeah, 10 business day waiting period for, I think, also for 18 to 20-year-olds. I mean, this statute, sir, sounds like a lot closer to a ban. Right. I think that's our view. And at least. And you're saying you can, government can do that, ban's OK. Correct. Given the particular historical provenance that we have with respect to concealed knives, concealable knives. The ban isn't OK because these weapons are outside this protection of the Second Amendment, short-barreled shotguns. The ban's OK because it comports with historical analogs, relevantly similar from back in the day. I mean, to the extent the question's getting at whether this is kind of a Bruin step one or step two argument. Yes. I'm not sure that the court needs to figure that out. I think this is a place where step one and step two merge, whether it's sort of a gloss on the text as informed by history, or whether it's sort of manners of historical regulation. Our point is just that these sorts of weapons, dirks, daggers, Bowie knives, I mean, there's a whole real historical purpose here of state regulations of those weapons. Well, but I guess the reason I'm asking that is I'm not sure that step one and two converge necessarily. I do think there's a distinction, whether this particular switchblade knife is even within the kind of weapon protected by the Second Amendment, but it could be regulated, access to it, et cetera. Or it falls outside the Second Amendment altogether. A short-barreled shotgun is how I read Hiller and how I read McDonald. So therefore, we don't even get to Bruin. A ban's OK. You can just flat out say you can't have them. I mean, I think we think this operates sort of on similar historical principles to the short-barreled shotgun regulations, the NFA's regulations. So where you would put that bucket, I think, is probably where you would put these arguments. Can the government ban all knives? I think it may well not be a Second Amendment problem to ban knives. It may well be sort of a silly law for a lot of other reasons. Why would it not be a Second Amendment problem to ban all knives? I think we have this very clear historical tradition concluding that all sorts of knives, small sort of not swords, which I think are protected, but sort of dirks, daggers, bowie knives. But if you don't want to go that far, if you think that that's... Of outright bans. I mean, I guess what I'm getting at, you sort of argued this concealed, if it can be concealed, rule. I mean, most knives, pocket knives, they fit in your pocket, by definition, can be concealed. So the government could ban all of them altogether. I wouldn't say if it can be concealed. I think the way I would put it is if it's sort of, in the words of the Andrews case that we cite, sort of adapted to concealability. Then it falls outside the protection of the Second Amendment's right. But if you don't sort of want to go that far, as I said, we have three traditions here. The concealability tradition is the first one, which I think provides a lot of support here. But then you also have the sort of adaptive or criminal misuse tradition, which I think applies quite neatly to the automatic switchblades, which have that combination of sort of concealability, but also ability to unleash damage at a moment's notice that you might see with a short-barreled shotgun or a short-barreled rifle, as compared to a rifle or a shotgun or a pocketknife. So I think that comes in as well. And then the third principle, which maybe is the narrowest one in this particular case, is that these sorts of regulations on the manner and mode of operation were not historically thought to constitute an infringement of the right. Yeah, but this is a ban on possession. That's not a mode of operation. You can't have it. So I wouldn't think of it that way, Your Honor. I would think of it as a... That's what 1343 says. So I think of it as saying you can't have, at least on federal and tribal land, a switchblade where the blade folds into the handle and is released by the operation of a button. And so the regulation really operates on the press of the button rather than... and the folding in, rather than on banning all pocketknives, banning knives altogether. So it's kind of like a machine gun. I think quite similar to a machine gun, I mean, quite similar... Just another example, there's a federal statute that requires that all handguns have a particular amount of metal in them so that they can be captured by metal detectors, which, you know, you could stand up here and say that operates as a complete ban on all polymer handguns. But I think what we would say is, no, no, it's sort of regulation of the manner and mode of operation requiring a small amount of metal in the gun. And so I think the same thing here is if you want to get outside the restrictions of the Federal Switchblade Act, you need a knife that operates in a slightly different way that you have to pull out or that's fixed-bladed. But these arguments were not made to the district court. They certainly weren't ruled on by the district court. Yes, and the district court went in a completely different direction under the guidance of the government. And so should we be dealing with all of these moving parts as a court of appeals? You know, look, I think this court could say, you know, the district court was wrong or the government's not defending the holding, that the 1242 holding on the merits, the 1243 holding on standing, we vacate and remand. That that would dispose of the appeal and the district court could consider these questions in the first instance. You know, I think if the court wants to consider the questions, certainly we've tried to give the court the briefing and the argument to allow it to do so. Do we have the briefing and argument now to do that? I think you do at this point. But again, I think if the court still has questions or the court thinks it would benefit, these issues would benefit from erring in the district court in the first instance. There's certainly no impediment to remanding and allowing the district court to consider. The one thing I might say is that when it comes to the facial challenge issue, I think that's really a purely legal question about whether or how to think about facial challenges and it may be helpful to provide the parties guidance. You know, if the court were to say, for example, that plaintiffs might be well-advised to amend their complaint to bring an as-applied challenge if that's sort of really what they want to do, that, again, may be helpful. Should we have a quasi-facial challenge doctrine in this circuit? I mean, I would think of it the way that... Like the 11th? Do you believe? I would think of it the way that Judge Wilson thought of it, which is just it's a facial challenge to part of the statute and you don't need to have the statute broken out into subsections to be able to facially challenge. You can just say this sentence and that sentence and that paragraph between these two commas is facially challenged. Right. And, again, I think that would be perfectly fine. I think when it comes to their 1242 challenge, that's what's happening. You know, we don't take our pencil out and line edit these statutes, though. I mean, I think the way it would work in this case is if the plaintiffs, maybe just focusing on their 1242 challenge, if they won on the 1242 challenge at the end of the day, they would probably get an injunction that says we can't enforce 1242 as applied to the distributing, manufacturing, but not as applied to the importation, which I think would just sort of match up with the parts of the statute that they are challenging. So you just think it works its way out in the remedy? I mean, I think there's a lot of focus in plaintiff's briefing and in the way they frame their complaint about the sort of facial as applied distinction. I think the real question, I mean, at the end of the day, is just, like, what do they want to do? And do they have a constitutional right to do that thing? And if they're right that they have a constitutional right to do the thing and the statute prohibits it, then they get an injunction saying that we can't enforce the statute as to that thing. What is the lay of the land of the states vis-a-vis these switchblades? Yeah, so there are, I think, five states in the District of Columbia that sort of flatly prohibit their possession. There are, let's see, I have a list somewhere. There are, I think, three more states that ban switchblades above a certain length, which may vary. Three more sort of generally ban them, but have some exceptions. So are we up to 11? I think that is, yes, 11 plus DC. So the vast majority do not ban these? The vast majority of states do not ban them. Yes, that's the vast majority of states do not ban these and allow these weapons. Correct, although with one... What about the three states in this circuit? Texas, Mississippi, and Louisiana. So I'm not sure what those three states do. I don't remember seeing them in the list of states that ban. I will say that a number of major local jurisdictions also have bans, because I think there are particular circumstances. Well, one of the oldest cases I think you cite, actually, was Louisiana case that 1813, there was a law that basically said you couldn't possess concealed... Possess them concealed, correct. You possess, I mean, darts, daggers, all sorts of small blades. Right, but I mean, that would suggest that that's been Louisiana law since statehood. Or no. Well, I think that if that law is still in effect, it would mean that you can't possess them concealed, which may well mean you can't possess them. I mean, I don't think the plaintiffs say they want to walk around with the knife out the whole time that they have it. I would think they want to fold it up and put it in their pocket. You can have open carry of switchblades? I think as a theoretical matter... I'm not being facetious. No, no. I'm just, you know, that's the question. It's got to be concealed or not. Right, I mean, I think that goes to sort of the first historical tradition we've identified, which is that, you know, although a lot of the laws, the earliest laws that we identify talk about concealed carry, it's, like, really hard to imagine someone... If we were to dive into the merits of all this, what is the government's position? What's the position of the United States on what the proper reference date would be? Is it 1791? Is it 1868? So we haven't taken a position on that question. I wouldn't want to get ahead of my skis on that. What I would say in this case is that, you know, we have a lot of state Supreme Court cases and other sort of commentary, and the commentary and cases themselves post-date the immediate founding, but I think they are thinking about how the laws that they're identifying fit within this much broader historical tradition. But Bruin looked back to 1791, did it not? It was a federal act, so therefore... No, Bruin was a state act, so it sort of grappled with the question Judge Willard asked. 1791, 1868, sometime in between or after. But Brahimi was a federal law, and if I remember correctly, they went back to 1791. I mean, I think it is true that probably 1791 is sort of more helpful than later enactments. Well, in 1791, there was no dispute that the Second Amendment applied as against the federal government. Correct. There was some, I guess, question, maybe until late into the 20th century, whether it applied at all to the state governments. Correct. One more question? So, assuming 1791 is the magical date, can you identify, is there any kind of founding era, not Reconstruction era, any founding era regulation that restricted the acquisition or possession or distribution of a class of arms? Not how those arms are carried, not how they're used, but acquisition, possession, distribution. So we don't cite any of those in our brief. To be candid, I'm not aware of any. I think the earliest law that we cite in our brief is the 1813 Louisiana law. The Ninth Circuit opinion that we filed the 20HA about goes back to a 1686 New Jersey law. That's the earliest one that they found. But again, I think the earliest laws that we have found operate on the concealed carrying. But then, in the historical tradition, I think it grows organically, and you have the later, the Reconstruction era laws that apply that tradition to the inherently concealed weapons themselves. And the authorities just don't seem to draw a distinction there, which, again, I think goes back to the point that it's really weird to think of someone who wants to open carry an automatic switchblade. You can ask the plaintiffs. I suspect their clients don't want to walk around every time they're in public and have the blade out and open. I think the whole point is that you can conceal it. And so I think those traditions really do merge in this context. Well, you could have it closed, but people could know what it was. I'm not sure that that's right, Your Honor. I bet you wouldn't want to put it to the test, because I bet you there'd be plenty of people who would be willing to open carry. If that was the distinction between concealed and open. Maybe, but I think the point, again, is just that in the history itself, the very small move from no concealed carry to no protection of inherently concealed or adapted to be concealed weapons, the pocket pistols, the sword canes, the dirks, the daggers, is a move that happens in the history and is well-grounded and situated in the historical tradition. And that's, I think, all the court would need to say if it were to reach the merits. Even if we were assuming arguendo to come out differently than the Ninth Circuit, there would not be a circuit split on this, would there? Because that was dealing with the California statute specifically and not the federal statute. I mean, there would not be a... There would not be a circuit split as understood by the concept of circuit splits and requirements to precirculate opinions and all kinds of things that happen when you have a circuit split. Because it wouldn't be the Federal Firearms Act. I mean, the Federal Switchblade Act. We're not dealing with the state law. Right, so the Ninth Circuit opinion is about state law. Yeah, it's the state law. California Switchblade Statute, yeah, or whatever it's called. Correct. So I don't want to speak to the court's internal practices about circulating opinions. No, I'm not asking you to evaluate this. But there would not be an actual circuit split on this statute? It would not be on this statute. It may well be, depending on what you say. It might be some kind of reasoning or tension or whatever, but that's not... It's a different statute. They applied... They were inquiring into the California law. Correct. Okay. If there are no further questions, we would ask the court to affirm. Thank you. Or to remand. Or to remand. Whatever the court wants to do. It's very important that the court not lose sight of what rule governs this case, which is the common use rule. There is no adapted to criminal use rule. That's just interest balancing. We don't compare what criminals can do with arms versus what law-abiding individuals can do with arms. If the arm is typically possessed by law-abiding citizens for lawful purposes, that's the end of the inquiry, which is why the court need not remand to the district court, because there is no further Bruin analysis to do. The Supreme Court did the entire historical analysis for arms bans in Heller and announced the common use test. If switchblades are typically possessed by law-abiding citizens for lawful uses, they are protected. That's the end. The government does not get to do more historical analysis. That said, the historical analogs that they've tried to provide don't help at all. None of them, with the exception of maybe West Virginia, which is an outlier, is an outright arms ban. We know from Bruin that three analogs aren't enough. Certainly one analog isn't enough. Almost all of the cases and statutes that deal with this kind of stuff are conduct-based. They're either a fray or going armed type laws, or occasionally there's a ban on concealed carry, but not bans on total carry. As we know from cases like Nunn or Chandler, you have to have some basis for carry, and of course we know from Bruin you can't ban all forms of carry. So even if the government does get to do additional historical analysis, which they don't, none of that helps them in this case. I want to address standing briefly, because I'd like to just sort of point out, with Mr. Lumsden, his issues are still going on. They seized his hard drives and his computers, and they still haven't given them back. They're enforcing the statute today. So enforcement continues in Mr. Lumsden's case. I heard my friend on the other side adamantly refuse to disavow enforcement of 1242 and 1243. It's a criminal statute. The purpose of a statute like that is deterrence. The whole idea that my friend on the other side got up here and said that should scare anyone who lives in any circumstance or operates in any circumstance where they would run afoul of 1243. In addition to prosecution, losing their FFLs, any number of those circumstances. That alone should support standing in a case like this. I will briefly, if the court wants, I can address 1791 versus 1868. This is a federal statute, so none of the 14th Amendment arguments as to why it's not 1791 would apply in any of them. So this court doesn't even have to resolve that question. But if the court decides to resolve that question, the Supreme Court was actually pretty clear in Bruin. Even though they said nominally, we don't have to decide this today, they basically made it clear that how the Second Amendment works under federal law and state law is supposed to be the same. And so the idea that there's some different Second Amendment for state law that would deal with 1868 doesn't make any sense, even though they sort of Well, they've sort of alighted the issue. I mean, the reality is that analogs might be a lot more salient for state laws if they dated from the 1870s, 1880s, 1890s, less so if we're talking back to the founding era and it's a federal restriction. Correct. And since this is a federal law. But I also think that you sort of brush aside the state analogs that the government offers as well. They're just state laws. But most of the Bruin or Rahimi cases that we've handled or that I'm familiar with have gone and looked at colonial laws and state laws and other instances, even back to the laws of England, the statute of Westminster, Northminster, I can't remember which Minster. But we're looking for any sort of restrictions that would have been salient at the time the amendment was adopted, whether they're state or federal. There were no federal laws at that point, and there were very few in the first couple decades. I'm sorry, Your Honor. I didn't mean to imply that state law analogs don't inform the historical tradition. I didn't mean to say that, if that's what Your Honor understood. What I was saying is that the government's analogs don't work. They're not proper analogs. They're not relevantly similar. This is a ban. None of those are bans with the exception of one outlier. Those are conduct-based prohibitions. In a couple of instances, they are simply prohibitions on concealment. Okay, I appreciate the clarification because I had read the briefing to sort of minimize the states because it was a federal law. But how does this feed into the issue of facial challenge? In other words, if there's a whole category of manner of usage, you can't conceal these things. Then does that defeat a facial challenge because there are applications that would be within the historical tradition? It does not, Your Honor, and for the same reason as I explained before. The Salerno test goes to what the elements of the offense are. This statute has nothing to do with concealment versus non-concealment. It has to do with manufacture, distribution, possession. In fact, that's exactly what the Ninth Circuit did. The Ninth Circuit took a very broad statute and said, well, if possession is banned, carry is banned. If carry is banned, that means at least conceal carry is banned. So now we're going to find a historical tradition, and by the way, they were wrong about that anyway on the merits, but we're going to find a historical tradition that says you can ban, conceal, carry, right? And so now we're going to find the facial challenge fails. That's exactly the same thing as suggesting that Bruin fails because courthouses in New York, it would be constitutional to prevent carry of a handgun. So for the exact same reason, that's not the correct analytical way to understand how Salerno applies to facial challenges. Thank you. We appreciate your argument, and we appreciate the argument of the other side, and this case is submitted. The court will stand in recess until 9 a.m.https://www.courtlistener.com/api/rest/v4/audio/104111/?format=xml104111/audio/104111/davis-v-warren/https://www.courtlistener.com/api/rest/v4/dockets/72530694/?format=xml2026-04-01T15:34:11.324657-07:002026-04-01T15:34:11.324671-07:00CDavisDavis v. 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