CLARIFICATION REQUEST #1
I have a question on the fact pattern: what is Singsong's state of
incorporation?
CLARIFICATION #1
Singsong is incorporated under the laws of the State of Moot. We
will add this to the fact pattern so the judges will know it after
the holiday break and will add a footnote stating that Moot has
adopted the Model Business Corporation Act but has no statutory
provision specifically addressing a corporation’s power to file
bankruptcy.
CLARIFICATION REQUEST #2
Should we assume that Singsong's articles of incorporation or
bylaws grant the board of directors authority to amend the
bylaws?
CLARIFICATION #2
No. There is no indication in the Record what steps are required to
amend the bylaws of Singsong or whether that authority is vested in
the Board of Directors or the shareholders. Under the facts given
in the Record, the Board of Directors did not attempt to amend the
bylaws, but instead approved a resolution authorizing the filing of
the chapter 11 case. R.5.
CLARIFICATION REQUEST #3
Page 4 of the fact pattern states that, "the District Court granted
summary judgment against Singsong on the issue of infringement on
June 11, 2012, and invited Plum to file a motion requesting an
injunction."Page 18 of the fact pattern states, however, that, "As
the district court determined in Plum's patent infringement action,
Singsong has no right outside of bankruptcy to sell Galactica
phones that infringe Plum's software patents."I think these two
statements conflict with each other. On page 4, the facts say that
the district court didn't reach a decision with respect to the
injunction, but page 18 implies that the district court did make a
determination on this issue. It is my understanding that even
though a court can find that a patent has been infringed, it does
not necessarily follow that an injunction on sales of the
infringing product will automatically be granted. These are two
separate decisions. (See for example Judge Lucy Koh's denial of an
injunction in Apple v. Samsung, 2011 WL 7036077 - despite
a jury's finding that Samsung did infringe Apple's patent).Can you
please clarify that the District Court in our prompt did not reach
a decision on whether or not Singsong has a right to sell the
Galactica?
CLARIFICATION #3
You are confusing the right with the remedy. The district court
found that Singsong’s phones infringed Plum’s patents. Thus, the
court of appeals is correct in its view that (in light of that
ruling) Singsong has no “right” to sell the phones, i.e. no right
to infringe a patent. The moot problem is set at a point in time
before the district court has imposed a remedy, which might have
been an injunction. We believe that made the problem simpler.
However, the issue for which certiorari was granted could also
arise after an injunction had issued and you should be prepared to
address that if asked.
CLARIFICATION REQUEST #4
Please clarify the ruling of the Circuit Court of Moot. In
Section II. Discussion, the Fact Pattern says that the Circuit
Court of Moot “affirms the decision of the district court that
reversed the bankruptcy court orders below” (p. 7), but in Section
III. Conclusion, the Fact Pattern says that the Circuit Court of
Moot reverses the judgment (p. 13). If the “judgment”
referenced at p. 13 is the bankruptcy court ruling, the Circuit
Court of Moot would affirm—not reverse—the ruling of the district
court and remand to the district court for further proceedings
consistent with this opinion.
CLARIFICATION #4
Thank you for catching this. The “Conclusion” on page 13
should read “For the foregoing reasons, we affirm.”
CLARIFICATION REQUEST #5
Should we assume that Singsong executed any pre-petition sales
agreements with respect to its Galactica phone inventory?
Should we also assume that Singsong is currently attempting to sell
its Galactica phone inventory? If so, has Singsong made any
post-petition agreements to sell its Galactica phone
inventory?
CLARIFICATION #5
You should make no assumptions about these details as the record
does not include any information about them. To the extent
you are asking whether Singsong is actively engaged in selling
infringing phones, we believe that the record sufficiently
indicates that there is on-going post-petition infringing
activity. (R.4) If you believe that more detailed
information is essential to the legal arguments raised by the
certiorari grant, please let us know why so that we can reconsider
whether to add new facts.
CLARFICATION REQUEST #6
I think there is a typo in the fact section. On page 4 of the
record it explains that on June 14, 2012 Plum filed a motion with
the Washington District Court to enjoin Singsong from selling the
Galatica. The very next sentence states "testimony given at the
Bankruptcy Court hearing established that the . . . would
prevent the sale of almost 100 million . . ." Was the
testimony given in the Bankruptcy Court of the Eastern District of
Moot or was it given in the Washington District Court?
CLARIFICATION #6
The testimony was given to the bankruptcy court. There has
not yet been a hearing on the injunction request at the district
court. Thank you for pointing out that the location of this
statement causes confusion. In the final version of the Fact
Pattern being posted today we have moved those two sentence back
from page 4 to page 6 (where the discussion of the bankruptcy court
hearing is).
CLARIFICATION REQUEST #7
Is there any relevant conflicts of law doctrine that the State of
Moot follows? e.g., does it follow the Restatement (2d) of
Conflicts of Laws?
CLARIFICATION #7
The Record does not indicate the choice of law rules for the State
of Moot. If you believe that this information is essential to
the legal arguments raised by the certiorari grant, please let us
know why so that we can reconsider whether to add new facts.