throbber
Case: 24-2265 Document: 13 Page: 1 Filed: 09/10/2024
`
`
`No. 2024-2265
`
`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`
`
`VIDSTREAM LLC,
`
`
`v.
`
`TWITTER, INC.,
`
`
`
`
`
`
`Plaintiff-Appellant,
`
`Defendant-Appellee.
`
`
`
`On Appeal from the United States District Court for The Northern District of Texas
`Case No. 3:16-cv-00764-N, Judge David C. Godbey
`
`APPELLANT VIDSTREAM INC.’S RESPONSE TO APPELLEE
`TWITTER, INC.’S MOTION FOR SUMMARY AFFIRMANCE
`
`John Austin Curry
` Counsel of Record
`Bradley W. Caldwell
`Jason D. Cassady
`John F. Summers
`Hamad M. Hamad
`CALDWELL CASSADY & CURRY, PC
`2121 N. Pearl Street, Suite 1200
`Dallas, TX 75201
`(214) 888-4848 (telephone)
`(214) 888-4849 (fax)
`
`
`
`Counsel for VidStream, LLC
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case: 24-2265 Document: 13 Page: 2 Filed: 09/10/2024
`
`FORM 9. Certificate of Interest
`
`Form 9 (p. 1)
`March 2023
`
`UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`CERTIFICATE OF INTEREST
`
`Case Number
`Short Case Caption
`Filing Party/Entity
`
`2024-2265
`VidStream LLC v. Twitter, Inc.
`Plaintiff-Appellant, VidStream LLC
`
`Instructions:
`
`1. Complete each section of the form and select none or N/A if appropriate.
`
`2. Please enter only one item per box; attach additional pages as needed, and
`check the box to indicate such pages are attached.
`
`3. In answering Sections 2 and 3, be specific as to which represented entities
`the answers apply; lack of specificity may result in non-compliance.
`
`4. Please do not duplicate entries within Section 5.
`
`5. Counsel must file an amended Certificate of Interest within seven days after
`any information on this form changes. Fed. Cir. R. 47.4(c).
`
`I certify the following information and any attached sheets are accurate and
`complete to the best of my knowledge.
`
`09/10/2024
`Date: _________________
`
`Signature:
`
`/s/ Austin Curry
`
`Name:
`
`Austin Curry
`
`

`

`Case: 24-2265 Document: 13 Page: 3 Filed: 09/10/2024
`
`FORM 9. Certificate of Interest
`
`1. Represented
`Entities.
`Fed. Cir. R. 47.4(a)(1).
`Provide the full names of
`all entities represented by
`undersigned counsel
`in
`this case.
`
`Form 9 (p. 2)
`March 2023
`
`2. Real Party in
`Interest.
`Fed. Cir. R. 47.4(a)(2).
`Provide the full names of
`all real parties in interest
`for the entities. Do not list
`the real parties if they are
`the same as the entities.
`
`3. Parent Corporations
`and Stockholders.
`Fed. Cir. R. 47.4(a)(3).
`Provide the full names of
`all parent corporations for
`the
`entities and all
`publicly held companies
`that own 10% or more
`stock in the entities.
`(cid:1798) None/Not Applicable (cid:1798) None/Not Applicable
`
`✔
`
`VidStream LLC
`
`See attached page.
`
`(cid:1798) Additional pages attached
`
`✔
`
`

`

`Case: 24-2265 Document: 13 Page: 4 Filed: 09/10/2024
`
`FORM 9. Certificate of Interest
`
`Form 9 (p. 3)
`March 2023
`
`4. Legal Representatives. List all law firms, partners, and associates that (a)
`appeared for the entities in the originating court or agency or (b) are expected to
`appear in this court for the entities. Do not include those who have already entered
`an appearance in this court. Fed. Cir. R. 47.4(a)(4).
`(cid:1798) None/Not Applicable
`(cid:1798) Additional pages attached
`
`See attached page.
`
`✔
`
`5. Related Cases. Other than the originating case(s) for this case, are there
`related or prior cases that meet the criteria under Fed. Cir. R. 47.5(a)?
`(cid:1798) Yes (file separate notice; see below) (cid:1798) No (cid:1798) N/A (amicus/movant)
`If yes, concurrently file a separate Notice of Related Case Information that complies
`with Fed. Cir. R. 47.5(b). Please do not duplicate information. This separate
`Notice must only be filed with the first Certificate of Interest or, subsequently, if
`information changes during the pendency of the appeal. Fed. Cir. R. 47.5(b).
`
`6. Organizational Victims and Bankruptcy Cases. Provide any information
`required under Fed. R. App. P. 26.1(b) (organizational victims in criminal cases)
`and 26.1(c) (bankruptcy case debtors and trustees). Fed. Cir. R. 47.4(a)(6).
`(cid:1798) None/Not Applicable
`(cid:1798) Additional pages attached
`
`✔
`
`

`

`Case: 24-2265 Document: 13 Page: 5 Filed: 09/10/2024
`
`FORM 9. CERTIFICATE OF INTEREST
`
`
`
`Certificate of Interest Form 9 (p. 4)
`March 2023
`
`ADDENDUM TO CERTIFICATE OF INTEREST
`3. Parent Corporations and Stockholders. Fed. Cir. R. 47.4(a)(3).
`Provide the full names of all parent corporations for the entities and all publicly
`held companies that own 10% or more stock in the entities.
`• Covenant Global Alpha Fund, L.P.
`o Covenant Global Alpha Fund, L.P. is a Delaware limited partnership
`whose general partner is MCFGA LLC. The members of MCFGA
`LLC are (1) CFMMMP LLC, (2) JFCFM LLC, (3) CFRBLP LLC,
`and (4) CFLP LLC.
` CFMMMP LLC is an Oklahoma LLC and is owned by Marsh
`Pitman, an Oklahoma resident.
` JFCFM LLC is an Oklahoma LLC and is owned by Joseph
`Watt, an Oklahoma resident.
` CFRBLP, LLC is an Oklahoma LLC and is owned by Robert
`Browne, an Oklahoma resident.
` CFLP LLC is an Oklahoma LLC and is owned by Ed Abel, an
`Oklahoma resident.
`o Covenant Global Alpha Fund, L.P. also has 74 private investors, who
`are limited partners.
`• CGALTD Corporation
`o CGALTD Corporation is an Oklahoma corporation owned by
`Covenant Global Alpha Fund, Ltd., a Cayman Islands exempted
`company. Covenant Global Alpha Fund, Ltd. has 74 private investors.
`• GSSK Inc.
`o GSSK Inc. is a Texas corporation. Ryland Reed, a Texas resident,
`owns 50% of GSSK Inc., and Kerry Reed, a Texas resident, owns
`50% of GSSK Inc.
`• Beth Harwell, a Texas resident
`• AspenTech LLC
`o AspenTech LLC is a Texas LLC. Reed Williams, a Texas resident,
`owns 50% of AspenTech LLC, and Russell Lambert, a Texas resident,
`owns 50% of AspenTech LLC.
`• J. Reed Williams LLC
`
`VidStream LLC v. Twitter, Inc.
`CAFC No. 2024-2265
`
`

`

`Case: 24-2265 Document: 13 Page: 6 Filed: 09/10/2024
`
`FORM 9. CERTIFICATE OF INTEREST
`
`
`
`Certificate of Interest Form 9 (p. 5)
`March 2023
`
`o J. Reed Williams LLC is a Texas LLC owned by Reed Williams, a
`Texas resident.
`• Reed Williams, a Texas resident
`• Russell Lambert, a Texas resident
`• Decker Holdings Ltd.
`o Decker Holdings Ltd. is a Texas Partnership owned by W&B Trust.
` The beneficiaries of the W&B Trust are Wade and Becky
`Decker, Texas residents.
`• Reynolds Green LLC
`o Reynolds Green LLC is a Texas LLC. It is co-owned by Matt
`Musselman and Will Musselman, both Texas residents.
`• Beckham Group PLLC
`o Beckham Group PLLC is a Texas PLLC owned by Blake Beckham, a
`Texas resident.
`• Blake Becham, a Texas resident
`• Sudon Carlop Holdings Ltd.
`o Sudon Carlop Holdings Ltd. is a Cayman Islands company. It is
`owned by the Rovrig Trust.
` The beneficiaries of the Rovrig Trust are Errol and Suzzanne
`Pullen, residents of the Cayman Islands.
`• Warren Low, an Oklahoma resident
`• Brian E. King Custodial IRA
`o The beneficiary of the Brian E. King Custodial IRA is Brian E. King,
`a Texas resident.
`• K&NI LLC
`o K&NI LLC is a Texas LLC. Karl Buckman, a Texas resident, owns
`50% of K&NI LLC, and Nelda Sue Buckman, a Texas resident, owns
`50% of K&NI LLC.
`• Voice Team USA LLC
`o Voice Team USA LLC is a Florida LLC owned by Sean Gruwell, a
`Florida resident.
`• Joshua Lambert, a Texas resident
`• James Lambert, a Texas resident
`• Sarah Morrison, a Texas resident
`• Beth Wieser, a Texas resident
`
`VidStream LLC v. Twitter, Inc.
`CAFC No. 2024-2265
`
`

`

`Case: 24-2265 Document: 13 Page: 7 Filed: 09/10/2024
`
`FORM 9. CERTIFICATE OF INTEREST
`
`
`
`Certificate of Interest Form 9 (p. 6)
`March 2023
`
`• April Lambert, a Texas resident
`• Nichols Security Trust
`o Nichols Security Trust is a Texas trust. Its beneficiary is Rex Nichols,
`a Kentucky resident.
`4. List of Legal Representatives. Fed. Cir. R. 47.4(a)(4).
`List all law firms, partners, and associates that (a)appeared for the entities in the
`originating court or agency or (b) are expected to appear in this court for the
`entities. Do not include those who have already entered an appearance in this
`court.
`CALDWELL CASSADY CURRY PC:
`Adrienne R. Dellinger
`Brian D. Johnston
`Daniel R. Pearson
`R. Seth Reich, Jr.
`Warren J. McCarty, III
`BRUSTER PLLC
`Andrew Joseph Wright (former)
`CARRINGTON COLEMAN SLOMAN & BLUMENTHAL LLP:
`Kenneth E. Carroll (former)
`Mark C. Howland (former)
`Seth A. Horwitz (former)
`Stephen L. Levine (former)
`NELSON BUMGARDNER CONROY PC:
`Brent N. Bumgardner (former)
`Christopher Granaghan (former)
`
`VidStream LLC v. Twitter, Inc.
`CAFC No. 2024-2265
`
`

`

`
`
`Case: 24-2265 Document: 13 Page: 8 Filed: 09/10/2024
`
`
`TABLE OF CONTENTS
`
`
`
`INTRODUCTION ............................................................................................... 1
`I.
`II. FACTUAL BACKGROUND ............................................................................. 2
`III. ARGUMENT ...................................................................................................... 3
`A. VidStream Did Not Rely on Any Presumption in Establishing
`Irreparable Harm. ........................................................................................ 5
`B. The Discussion of Irreparable Harm in Robert Bosch Does Not
`Control the Merits Panel in This Appeal. .................................................... 7
`C. Twitter’s Own Actions Indicate that Its Arguments Do Not Meet
`the Standard for Summary Affirmance. .................................................... 10
`IV. CONCLUSION ................................................................................................. 11
`
`
`
`
`
`
`
`
`i
`
`
`
`

`

`
`
`Case: 24-2265 Document: 13 Page: 9 Filed: 09/10/2024
`
`
`TABLE OF AUTHORITIES
`
`
`Cases
`
`Apple Inc. v. Samsung Electronics Co., Ltd.
` 735 F.3d 1352 (Fed. Cir. 2013) ................................................................................. 9
`
`Atlas Life Ins. Co. v. W. I. Southern, Inc.
` 306 U.S. 563 (1939) .................................................................................................. 1
`
`Automated Merchandising Systems, Inc. v. Crane Co.
` 357 F. App’x 297 (Fed. Cir. 2009) ............................................................................ 6
`
`Central Va. Community College v. Katz
` 546 U.S. 356 (2006) .................................................................................................. 8
`
`Co-Steel Raritan, Inc. v. Int’l Trade Comm’n
` 357 F.3d 1294 (Fed. Cir. 2004) ................................................................................. 7
`
`eBay v. MercExchange, L.L.C.
` 547 U.S. 388 (2006) .......................................................................................... 1, 6, 8
`
`Fleet Engineers, Inc. v. Mudguard Techs., LLC
` No. 2022-2001, 2023 WL 5219773 (Fed. Cir. Aug. 15, 2023) ................................. 9
`
`Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc.
` 527 U.S. 308 (1999) .................................................................................................. 1
`
`In re Youtoo Technologies, LLC
` No. 17-14849-JDL (Bankr. W.D. Okla. 2017) .......................................................... 3
`
`Joshua v. United States
` 17 F.3d 378 (Fed. Cir. 1994) ........................................................................... 2, 5, 10
`
`Kirtsaeng v. John Wiley & Sons, Inc.
` 568 U.S. 519 (2013) .................................................................................................. 7
`
`Robert Bosch v. Pylon Manufacturing Corp.
` 659 F.3d 1142 (Fed. Cir. 2011) ........................................................................ passim
`
`
`
`
`
`ii
`
`

`

`
`
`Case: 24-2265 Document: 13 Page: 10 Filed: 09/10/2024
`
`
`Routen v. West
` 142 F.3d 1434 (Fed Cir. 1998) .................................................................................. 6
`
`Smith v. Orr
` 855 F.2d 1544 (Fed. Cir. 1998) ................................................................................. 7
`
`Snyder v. McDonough
` 1 F. 4th 996 (Fed. Cir. 2021) ..................................................................................... 6
`
`Twitter, Inc. v. VidStream LLC
` 825 F. App’x 844 (Fed. Cir. 2020) ............................................................................ 3
`
`Other Authorities
`
`Black’s Law Dictionary 1100 (7th ed. 1999) ............................................................... 7
`
`
`
`iii
`
`

`

`Case: 24-2265 Document: 13 Page: 11 Filed: 09/10/2024
`
`
`
`
`I.
`
`INTRODUCTION
`
`In eBay v. MercExchange, L.L.C., 547 U.S. 388 (2006), the Supreme Court
`
`reconfirmed that injunctive relief in patent-infringement cases must be evaluated
`
`according to “traditional principles of equity.” Id. at 394. The Supreme Court has
`
`previously recognized that these principles are not merely vague notions of fairness
`
`or justice but instead constitute “the principles of the system of judicial remedies
`
`which had been devised and was being administered by the English Court of
`
`Chancery at the time of the separation of the two countries.” Atlas Life Ins. Co. v.
`
`W. I. Southern, Inc., 306 U.S. 563, 568 (1939); see also Grupo Mexicano de
`
`Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999) (reconfirming
`
`Atlas Life).
`
`In the proceedings below, VidStream offered evidence and argument
`
`establishing how the English Court of Chancery treated preliminary injunctions,
`
`including how Chancery analyzed irreparable harm. VidStream did not rely on any
`
`factual presumption of irreparable harm. Instead, it offered specific evidence
`
`establishing the likelihood of ongoing infringement and legal argument as to how
`
`this evidence constitutes irreparable harm under the applicable Chancery standard.
`
`Twitter’s argument is therefore entirely based on a false premise and otherwise
`
`simply incorrect. Its position is certainly not “so clearly correct as a matter of law
`
`that no substantial question regarding the outcome of the appeal exists,” Joshua v.
`
`1
`
`

`

`Case: 24-2265 Document: 13 Page: 12 Filed: 09/10/2024
`
`
`
`
`United States, 17 F.3d 378, 380 (Fed. Cir. 1994), as is required for this Court to
`
`grant Twitter’s requested relief. For the reasons described in more detail below,
`
`this Court should deny Twitter’s motion for summary affirmance.
`
`II.
`
`FACTUAL BACKGROUND
`
`VidStream’s predecessor-owner of the patents, Youtoo Technologies, filed
`
`this patent infringement case in 2016 after more than a year of business discussions
`
`between Youtoo and Twitter. D. Ct. Dkt. 1. A year and a half later, Youtoo filed
`
`for bankruptcy—in part because of legal fees related to the litigation. Add003,
`
`Reed Decl. ¶ 5. VidStream, made up in part with individuals and investors
`
`associated with Youtoo, purchased the assets out of bankruptcy, including the U.S.
`
`Patent No. 8,464,304 (’304) subject to this appeal. Id.
`
`The length of this case has not been because Youtoo or VidStream lack any
`
`urgency in adjudicating their rights. Instead, the case has been hamstrung by a
`
`number of Twitter-caused procedural delays. The district court originally found
`
`that all claims of the ’304 Patent were invalid on subject matter eligibility grounds.
`
`Dkt. 39. Twitter then nevertheless filed a subsequent IPR proceeding against the
`
`’304 Patent. See IPR2017-01131. In part because it had inadequate funds to
`
`defend its patents in IPR proceedings, see also Add003, Reed Decl. at ¶ 5
`
`(attributing Youtoo ’s bankruptcy to Twitter’s infringement and its aggressive
`
`litigation tactics), Youtoo filed for bankruptcy shortly afterwards. In re Youtoo
`
`2
`
`

`

`Case: 24-2265 Document: 13 Page: 13 Filed: 09/10/2024
`
`
`
`
`Technologies, LLC, No. 17-14849-JDL, Doc. 1 (Bankr. W.D. Okla. 2017). The
`
`case was then otherwise stayed from December 2017 until April 2021 while
`
`Twitter tried unsuccessfully to invalidate the ‘304 Patent on obviousness grounds
`
`and tried unsuccessfully to appeal its IPR loss. See D. Ct. Dkt. 190; Twitter, Inc. v.
`
`VidStream LLC, 825 F. App’x 844, 852 (Fed. Cir. 2020).
`
`Three weeks after receiving the district court’s December 2023 Markman
`
`order rejecting each of Twitter’s proposed claim constructions and rejecting
`
`Twitter’s argument that the asserted claims of the patents-in-suit were indefinite,
`
`VidStream moved for a preliminary injunction. D. Ct. Dkt. 262-1. The district
`
`court denied it six months later. D. Ct. Dkt. 323. In denying the injunction, the
`
`district court did not evaluate VidStream’s likelihood of success, the balance of the
`
`equities between VidStream and Twitter, or the public interest. Dkt. 323 at 2-3.
`
`Instead, the district court denied the motion based on irreparable harm alone,
`
`finding that VidStream was a non-practicing entity and therefore could not show
`
`that money damages provided an inadequate remedy at law. Id.
`
`III. ARGUMENT
`
`In the district court, VidStream established irreparable injury on several
`
`grounds. Consistent with eBay’s directive to analyze injunctive relief in accordance
`
`with the “traditional principles of equity,” VidStream offered primary source
`
`evidence of how the traditional principles of equity —as reflected by English
`
`3
`
`

`

`Case: 24-2265 Document: 13 Page: 14 Filed: 09/10/2024
`
`
`
`
`Chancery at the time the United States separated from England—were applied to
`
`requests for injunctive relief in patent matters. VidStream offered factual evidence
`
`that Twitter was unlikely to change the Twitter app in any way relevant to
`
`infringement prior to trial. D. Ct. Dkt. 262-1 at 21 (citing to expert declaration and
`
`discovery response). It also offered factual evidence from Ryland Reed, a co-
`
`inventor of the ‘304 Patent, concerning the ways Twitter irreparably harmed
`
`VidStream as well as its predecessor owner Youtoo Technologies—including by
`
`leading to Youtoo’s bankruptcy, wasting the term of the ’304 Patent, and otherwise
`
`harming the patent’s owners through extensive, long-running infringement. For
`
`example, co-inventor Ryland Reed declared among other things that “Twitter’s
`
`infringement and its aggressive litigation tactics played a huge part in destroying
`
`Youtoo, driving it into bankruptcy, and destroying shareholder value.” Add003,
`
`Reed Decl. ¶ 5. He further declared that “the possibility that Twitter might have to
`
`pay money damages for its past infringement has done nothing other than to give
`
`Twitter a huge incentive to string out this litigation indefinitely,” Add004, Reed.
`
`Decl. ¶ 6, that VidStream and Youtoo “have spent years overcoming Twitter’s
`
`various challenges to [VidStream and Youtoo’s patents], and [that] this has eaten
`
`away and wasted our patents’ limited term.” Id. Mr. Reed also pointed out that his
`
`“friend and co-inventor, Mark Harwell, passed away in October 2016” while the
`
`litigation was pending. Id.
`
`4
`
`

`

`Case: 24-2265 Document: 13 Page: 15 Filed: 09/10/2024
`
`
`
`
`Because VidStream did not rely on any factual presumption of irreparable
`
`harm, Twitter tries to infer one, claiming that VidStream’s argument is “simply
`
`another way of saying irreparable harm can be presumed.” Mot. at 5. Based on its
`
`own say-so—its own inference that VidStream’s argument is “simply another
`
`way” of relying on an irreparable-harm presumption—Twitter then uses this
`
`Court’s statements rejecting an irreparable-harm presumption from Robert Bosch
`
`v. Pylon Manufacturing Corp., 659 F.3d 1142, 1448-1149 (Fed. Cir. 2011) to
`
`contend that this Court has squarely rejected VidStream’s argument on appeal in a
`
`way such that Twittter is “so clearly correct as a matter of law that no substantial
`
`question regarding the outcome of the appeal exists.” Mot. at 2 (quoting Joshua,
`
`17 F.3d at 380)).
`
`Twitter is wrong for at least three reasons. First, VidStream did not rely on
`
`the presumption rejected in Robert Bosch. Second, Robert Bosch’s descriptions of
`
`irreparable-harm presumptions are non-binding dicta. Finally, Twitter’s own
`
`actions suggest that its position on appeal is not nearly as strong as it contends.
`
`A. VidStream Did Not Rely on Any Presumption in Establishing
`Irreparable Harm.
`
`First, Robert Bosch does not apply because VidStream’s argument does not
`
`rely on presumptions. Presumptions are related to establishing facts under the
`
`applicable legal doctrine. As this Court has recognized, “a presumption ‘affords a
`
`party, for whose benefit the presumption runs, the luxury of not having to produce
`
`5
`
`

`

`Case: 24-2265 Document: 13 Page: 16 Filed: 09/10/2024
`
`
`
`
`specific evidence to establish the point at issue.’” Snyder v. McDonough, 1 F. 4th
`
`996, 1004 (Fed. Cir. 2021) (quoting Routen v. West, 142 F.3d 1434, 1440 (Fed Cir.
`
`1998)). VidStream did not rely on any presumption. Instead, VidStream provided
`
`specific factual proof of the acts that it contends constitutes irreparable harm.
`
`VidStream established how the traditional principles of equity dealt with
`
`preliminary injunction requests like VidStream’s, exactly as eBay and other
`
`Supreme Court decisions demand. It further offered the evidence described above
`
`as to the likelihood that Twitter would continue to operate in the ways VidStream
`
`accuses of infringing, and it offered evidence of the specific ways that the ongoing
`
`infringement had impacted and continues to impact Youtoo and VidStream.
`
`As further evidence that VidStream never relied on a presumption, the
`
`district court opinion under review nowhere concludes that VidStream relied on a
`
`presumption, nor does the opinion even use the word “presume.” Indeed, the
`
`district court opinion does not even cite to Robert Bosch, and Twitter’s only
`
`reliance on Robert Bosch in its briefing below was an isolated after-thought “see
`
`also” citation.1 D. Ct. Dkt. 275-1 at 19. None of this is surprising given that
`
`
`1 Twitter contends that the district court’s citation to the unpublished decision in
`Automated Merchandising Systems, Inc. v. Crane Co., 357 F. App’x 297, 301 (Fed.
`Cir. 2009) relied on the same “basic point.” Mot. at 5 n.4. Yet the district court
`cited Automated Merchandizing not for its discussion on presumptions but instead
`for its discussion about burdens and who has the burden to prove that money
`damages are inadequate. As VidStream’s opening brief makes clear, VidStream
`
`6
`
`

`

`Case: 24-2265 Document: 13 Page: 17 Filed: 09/10/2024
`
`
`
`
`VidStream was not relying on any presumption and so Robert Bosch does not
`
`apply. And it would be strange indeed if Robert Bosch so clearly controlled the
`
`issue subject to this appeal, yet Twitter thought to cite it only once, and the district
`
`court believed it not worth citing at all. Twitter’s argument is simply wrong.
`
`B. The Discussion of Irreparable Harm in Robert Bosch Does Not Control
`the Merits Panel in This Appeal.
`
`
`
`Even assuming for sake of argument that Robert Bosch were applicable, the
`
`discussion of irreparable-harm presumptions in Robert Bosch does not control the
`
`merits panel in VidStream’s appeal because Robert Bosch’s discussion of
`
`irreparable-harm presumptions is non-binding dicta.
`
`
`
`This Court has described dicta as “statements made by a court that are
`
`‘unnecessary to the decision in the case, and therefore not precedential (though
`
`[they] may be considered persuasive).” Co-Steel Raritan, Inc. v. Int’l Trade
`
`Comm’n, 357 F.3d 1294, 1307 (Fed. Cir. 2004) (quoting Black’s Law Dictionary
`
`1100 (7th ed. 1999)) (alterations in original); see also Smith v. Orr, 855 F.2d 1544,
`
`1550 (Fed. Cir. 1998). Dicta is both non-binding and non-persuasive where “more
`
`complete argument demonstrate[s] that the dicta is not correct.” Kirtsaeng v. John
`
`Wiley & Sons, Inc., 568 U.S. 519, 548 (2013); Central Va. Community College v.
`
`
`established why money damages were inadequate (i.e., why those damages failed to
`provide an adequate remedy at law).
`
`7
`
`

`

`Case: 24-2265 Document: 13 Page: 18 Filed: 09/10/2024
`
`
`
`
`Katz, 546 U.S. 356, 363 (2006) (“[W]e are not bound to follow our dicta in a prior
`
`case in which the point now at issue was not fully debated”).
`
`
`
`Robert Bosch’s discussion of irreparable-injury presumptions falls squarely
`
`in this category of non-binding statements. The Court there addressed a permanent
`
`injunction after a jury trial. Robert Bosch, 659 F.3d at 1145. The patent owner did
`
`not rely on a presumption of irreparable harm. Id. at 1151-53. Nor did the Court
`
`rely on the existence or non-existence of a presumption of irreparable harm; it
`
`found that the patentee had suffered harm beyond ongoing infringement in the
`
`form of lost sales and market erosion, making the question of whether infringement
`
`alone was irreparable irrelevant. Id. Further, although eBay directed this Court to
`
`address injunctions in accordance with “traditional principles of equity,” neither
`
`party briefed whether the presumption of irreparable harm survived eBay, the
`
`reasons for or against such a rule, or whether or to what extent ongoing
`
`infringement itself is or could be irreparable injury under equity’s traditional
`
`principles. See generally Add046-048; Add060-63.
`
`
`
`Moreover, Robert Bosch has been cited by the Court in relevant part only
`
`twice. Most recently, the Court cited Robert Bosch in an unpublished, non-
`
`precedential opinion involving a pro se appellant in which irreparable harm was
`
`only one of many flaws in appealing an injunction denial, including that
`
`infringement was not even ongoing. Fleet Engineers, Inc. v. Mudguard Techs.,
`
`8
`
`

`

`Case: 24-2265 Document: 13 Page: 19 Filed: 09/10/2024
`
`
`
`
`LLC, No. 2022-2001, 2023 WL 5219773, at *1 (Fed. Cir. Aug. 15, 2023). See also
`
`Add031-032 (Informal Brief of Appellant in Fleet Engineers, Inc. v. Mudguard
`
`Techs. No. 2022-2001). Prior to that, Robert Bosch has been cited in a majority
`
`opinion for the relevant principle only once—in Apple Inc. v. Samsung Electronics
`
`Co., Ltd., 735 F.3d 1352 (Fed. Cir. 2013)—and there only to note that the district
`
`court had pointed out the non-existence of a presumption. Id. at 1360. Yet there,
`
`too, the patentee did not rely on any presumption, instead choosing to rely on a
`
`theory of collateral harm—specifically lost sales and market share. Add017-
`
`Add021; Add024-026. In that case, this Court provided a framework to analyze
`
`how lost sales and market share might constitute irreparable injury. But because
`
`the parties in Apple v. Samsung did not litigate their case based on whether
`
`ongoing infringement itself could constitute irreparable injury or rely on an
`
`evidentiary presumption, this Court did not issue a holding regarding whether
`
`ongoing infringement can be the cognizable, irreparable injury, nor did this Court
`
`address any challenge to or defense of presumptions.
`
`In such circumstances, even if Robert Bosch were to apply, the merits panel
`
`in this appeal could disregard its dictum about irreparable harm presumptions and
`
`instead analyze VidStream’s requested relief according to the traditional principles
`
`of equity.
`
`9
`
`

`

`Case: 24-2265 Document: 13 Page: 20 Filed: 09/10/2024
`
`
`
`
`C. Twitter’s Own Actions Indicate that Its Arguments Do Not Meet the
`Standard for Summary Affirmance.
`
`As Twitter correctly states, summary affirmance is appropriate only if
`
`Twitter’s argument is “so clearly correct as a matter of law that no substantial
`
`question regarding the outcome of the appeal exists.” Joshua, 17 F.3d at 380.
`
`Twitter’s argument—that the nonexistent presumption that Twitter inferred from
`
`VidStream’s argument would be, at worst, inconsistent with non-binding dicta—
`
`fails to meet this standard.
`
`Twitter’s own actions also reveal the weaknesses of its argument and its
`
`failure to meet the standard for summary affirmance. When Twitter suggested that
`
`it believed it had an argument that was so strong as to warrant summary
`
`affirmance, VidStream proposed expedited merits briefing on this appeal, pointing
`
`out that briefing the one argument that Twitter believed to be “so clearly correct”
`
`could be done in a highly accelerated time-frame. Indeed, at the time the parties
`
`discussed the issue, Twitter had already drafted the argument and filed it hours
`
`later as its motion for summary affirmance. Yet Twitter opposed expedited
`
`briefing (and still does) because it was unwilling to forego the “many alternative
`
`grounds for affirmance” that it wished to brief in its merits brief. Mot. at 2 n.3.
`
`Twitter’s refusal to streamline its merits brief and its apparent need for alternative
`
`grounds for affirmance highlights that its strongest argument is not “so clearly
`
`correct” as to warrant summary affirmance.
`
`10
`
`

`

`Case: 24-2265 Document: 13 Page: 21 Filed: 09/10/2024
`
`
`
`
`IV. CONCLUSION
`
`For the reasons described above, VidStream respectfully requests the Court
`
`deny Twitter’s motion for summary adjudication.
`
`11
`
`

`

`Case: 24-2265 Document: 13 Page: 22 Filed: 09/10/2024
`
`
`
`
`September 10, 2024
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Austin Curry
`
`Austin Curry
`Bradley W. Caldwell
`Jason C. Cassady
`John F. Summers
`Hamad M. Hamad
`CALDWELL CASSADY & CURRY, PC
`2121 N. Pearl Street, Suite 1200
`Dallas, TX 75201
`(214) 888-4848 (telephone)
`(214) 888-4849 (fax)
`
`Counsel for VidStream, LLC
`
`
`
`
`
`12
`
`

`

`Case: 24-2265 Document: 13 Page: 23 Filed: 09/10/2024
`
`
`
`
`CERTIFICATE OF COMPLIANCE
`
`This brief complies with the Federal Rules of Appellate Procedure and
`
`Federal Circuit Rules because:
`
`1. The filing has been prepared using a proportionally spaced typeface and
`
`includes 2,374 words.
`
`2. The foregoing has been prepared using Microsoft Word for Office 365 in
`
`14-Point Times New Roman font.
`
`September 10, 2024
`
`
`
`
`
`
`
`/s/ Austin Curry
`
`
`
`
`
`13
`
`

`

`Case: 24-2265 Document: 13 Page: 24 Filed: 09/10/2024
`
`
`
`
`Addendum
`
`14
`
`

`

`
`
`
`
`
`
`Case: 24-2265 Document: 13 Page: 25 Filed: 09/10/2024
`
`
`3:16-cv-
`00764
`Docket
`Entry
`
`Date
`
`Description
`
`265
`
`01/05/2024 Declaration of Ryland M. Reed
`
`N/A
`
`02/12/2013
`
`N/A
`
`07/25/2022
`
`N/A
`
`01/31/2011
`
`N/A
`
`04/04/2011
`
`Brief of Plaintiff-Appellant Apple Inc., Apple Inc.
`v. Samsung Electronics Co., Ltd., No. 13-1129
`(Fed. Cir.)
`
`Informal Brief of Appellant, Fleet Engineers, Inc.
`v. Mudguard Techs., LLC, No. 2022-2001 (Fed.
`Cir.)
`
`Non-Confidential Brief of Plaintiff-Appellant
`Robert Bosch LLC, Robert Bosch LLC v. Pylon
`Manufacturing Corp., Nos. 2011-1096, 2011-117,
`2011-1118 (Fed. Cir.)
`
`Non-Confidential Reply Brief of Plaintiff-
`Appellant Robert Bosch LLC, Robert Bosch LLC
`v. Pylon Manufacturing Corp., Nos. 2011-1096
`(Fed. Cir.)
`
`Appendix
`Page
`Numbers
`
`Add1-
`Add5
`
`Add6-
`Add30
`
`Add31-
`Add33
`
`Add34-
`Add55
`
`Add56-
`Add66
`
`
`
`
`
`
`
`
`
`15
`
`

`

`Case: 24-2265 Document: 13 Page: 26 Filed: 09/10/2024
`
`Case 3:16-cv-00764-N Document 265 Filed 01/12/24 Page 912 of 1194 PageID 9724
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
`
`VIDSTREAM LLC,
`Plaintiff,
`
`v.
`
`TWITTER, INC.,
`
`Defendant.
`
`C.A. NO. 3:16-cv-00764-N
`Judge David C. Godbey
`
`DECLARATION OF RYLAND REED IN SUPPORT OF
`PLAINTIFF VIDSTREAM LLC’S MOTION FOR PRELIMINARY INJUNCTION
`
`My name is Ryland Reed. I submit this declaration based on my personal knowledge and
`
`following a reasonable investigation. If called upon as a witness, I could and would competently
`
`testify to the truth of each statement herein.
`
`1.
`
`I live in Keller, Texas with my family. I graduated from the United States
`
`Military Academy at West Point in 1994. I am the primary author and one of the co-inventors of
`
`the patents-in-suit, and I believe that my co-inventors and I were the first to invent the inventions
`
`claimed in the patents-in-suit.
`
`2.
`
`Youtoo Technologies LLC, my former company and the original assignee of the
`
`patent, filed this case on March 18, 2016—now over 7 years ago. We turned to the court system
`
`because we needed help protecting our intellectual property. But rather than get the help we
`
`needed, it seems like we have just faced endless procedure where we’re the ones under
`
`scrutiny—not Twitter.
`
`3.
`
`Mr. Austin Curry, litigation counsel for VidStream, showed me how Justice Story
`
`wrote

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