Transcription

Unofficial transcript for users of mofo.comJudge Taranto (00:00:03):In Re Cirba. Mr. Clement.Paul Clement (00:00:10):Thank you, Your Honors, and may it please the Court, Paul Clement for Cirba, Inc. And I’m going toendeavor to reserve three minutes for rebuttal. Inc’s constitutional standing is clear and indisputable, asthe entity actually practicing the patents and directly competing with VMware, Inc.’s injuring fact isindisputable. Indeed, the District Court ordered a new trial because it thought the jury had heard too muchabout Inc’s distinct injuries. In a post-Lexmark world, that conclusion is utterly incompatible with theCourt’s finding that Inc. lacked Constitutional standing.Judge Taranto (00:00:42):Can I ask—I have a number of questions—but can I just start with the aspect of Supreme Courtconstitutional standing cases that seems to continue to recite a notion of judicial cognoscibility or legallyprotected, sometimes in passing in a way that doesn’t make the decision that the court is making turn onthat, but it, but at least once last year, not that is not in dicta, namely the refusal to allow Texas and otherstates to file their election law challenge in December, which in one, the sentence says “It’s the motion toleave to file is denied for lack of standing under Article III of the constitution, Texas has not demonstrated ajudicially cognizable interest in the manner in which another state conducts its elections.” Full—that’s theentirety, the analysis; but it doesn’t say no injury is fact. It says judicial cognoscibility, which suggeststhere’s some life in that notion. I’d like you to explain what that life is.Paul Clement (00:01:51):Well, a couple of things, Your Honor, first,—that would be, I think, a difficult opinion to divine too muchfrom, but—second with that preface, I would say that judicial cognoscibility, I don’t think has disappeared.And I think it might still have some legs, as a doctrine of prudential standing or in the context of that Texascase, I suppose that almost might have been a political question doctrine flavor to that. So I think in thatcase, I’m not that surprised that the court might have whipped out a reference to judicial cognoscibility,but I don’t think that you and, —I mean, I think it was Justice Ginsburg, in the contract against Ryan, maybewho said, you know, jurisdiction is a term of many meetings, maybe too many meetings, and we’vesometimes been loose about how we refer to it. And I think I, I wouldn’t be surprised if you can point me toanother reference in a case to cognizable injury, but I don’t think there is a post-Lexmark Supreme Courtdecision where they point to cognizable injury as a component of the core Article III injury and then fault aparty for—Judge Taranto (00:03:03):—I thought some of the references like in what is it, the Affordable Care Act case, California against Texas,and also TransUnion, do recite legally protected or judicially cognizable or legally cognizable—I sort ofunderstand those three things as being the same and as something additional to injury in fact, caused bythe, the bad contact then—

Paul Clement (00:03:29):—I don’t think they are saying that with the conscious idea that by saying that something turns on it, and Ithink TransUnion is a perfect example. I mean the whole point of that case as Your Honor, no doubt knows,was to point out that a statutory injury, legally cognizable, I think, is what you’d often talk about when youhave a statutory injury like that. So they had legal cognoscibility out, you know, —in large measure. But theproblem was that have injury in fact—Judge Taranto (00:04:00):Right, but—Paul Clement (00:04:00):And so I can’t imagine that Justice Kavanaugh in writing that opinion, whatever loose language he mighthave used, meant to say that the injury in fact requirement is something more than injury in fact, and thatthere is a sense that—Judge Taranto (00:04:14):Right but I, —but I, I guess I have understood your position to be that there is nothing to the Article IIItest—beyond satisfying injury in fact, causation, and redressability, and since Inc. has all of that,constitutional standing exists and everything else has been waived is, do I understand?Paul Clement (00:04:33):—I think that’s a fair summary of our position, and I think that’s a fair summary of where the court is, boththis court and this Supreme Court, whenever it focuses on it. I think when the court’s not focused like alaser beam on the issue—Judge Taranto (00:04:47):It may seem so.Paul Clement (00:04:47):It reverts to, I mean, you know, —I recently read a, you know, a dissent from one of the members of thiscourt that used a whole bunch Pre-Lexmark, Pre-LoanStar, Pre-Schwendimann language about standing,but I don’t think much turned on it. And —that’s part of why I think mandamus is so important here isbecause, you know, with respect, for decades this court had conflated the Article III requirements and thestatutory prerequisites of 281. And so it’s not surprising that district courts continue to conflate them. Idon’t even think it’s an accident that it’s the judges who maybe had the most experience with patent casesunder the [inaudible] regime, who are the ones that are maybe most likely to continue making themistake; but it is a mistake.Judge Stoll (00:05:36):Counsel, Counsel you mentioned TransUnion. And that case, I noticed that the court, —talked about this,there’s some language in there that was interesting, talking about any physical monetary or cognizableintangible harm, traditionally recognized as providing a basis for a lawsuit in American courts. And I wasthinking about that language traditionally recognized as providing for the basis. But if your harm iscompetition, then how is that a traditionally recognized basis for a lawsuit? Let me try and explain further.So if you have exclusionary rights, then there’s competition because someone is using your exclusionaryrights. That seems to be a harm traditionally recognized as providing a basis; on the other hand, a harmthat comes from not having exclusionary rights, but you know, someone is competing with you,nonetheless is not usually something that’s the kind of injury that would be traditionally be recognized. Ijust wanted to get your thoughts on that.

Paul Clement (00:06:39):Sure—and I think I would just disagree with you. And I think if you broaden the lens outside the patentcontext, competitive harm is one of the classic Article III injuries, like, you know, losing part of black acre orsomething. If this were an antitrust suit and we, and VMware were a monopolist and we sued them formonopolistic behavior, and part of the monopolistic behavior was infringing patents. I mean, it would beour loss of competition that would be the basis for Article III standing, and it wouldn’t matter whether anexclusive license. If we were bringing a common law action in federal court on diversity, when we wouldstill need to have Article III injury, if we were bringing an unfair competition action, I mean, as the name ofthe tort suggests, the classic Article III injury in that context is a loss of in injury. Monetary injury of course,is another sort of classic Article III injury, which we have certainly suffered. It’s so classic that, of course,the whole doctrine of when equity jurisdiction takes over is when you don’t have an adequate remedy oflaw and simply monetary damages, monetary injury, is a classic legal injury. So—Judge Stoll (00:07:45):What about, —just hypothetically, if there was a third party and it was had a acceptable, non-infringingalternative that it made, and could it sue for patent infringement where VMware, you know—VMware wasno longer practicing the patent, but it would have an economic benefit if VMware was not able to practicethe patent because it sells an acceptable non-infringing alternative, and it’s harmed by the competitionfrom VMware.Paul Clement (00:08:19):So, I think you asked your honor, would they have standing to bring a patent action, and—Judge Stoll (00:08:24):Under for service patent—they don’t own service patent.Paul Clement (00:08:28):Right. But, but the reason I want to restate the question—Judge Stoll (00:08:31):I just am asking because—your view of injury is very broad. And so I’m just testing it.Paul Clement (00:08:38):Right.Judge Stoll (00:08:38):And under your view injury, I’m wondering whether someone who creates, an acceptable, loud infringing,alternative and competes with both Cirba and VMware, would have standing, or at least be injured.Paul Clement (00:08:51):So if I’m understanding the hypo, right. I think the answer is yes. The reason I wanted to sort of, becauseeven the way you formulated the question, I think actually encompasses both Article III standing andmaybe a statutory question. And on the statutory question, it might be a loser, but you said, —do theyhave standing to bring a patent case? And with all due respect, I don’t even think that’s the right question.The question is, do they have Article III injury? And the answer is yes. On the merits—Judge Stoll (00:09:18):They have Article III injury as a result of, just to make sure I’m being very clear, as a result of VMware usingCirba’s patent?

Paul Clement (00:09:26):Sure.Judge Stoll (00:09:27):Okay.Paul Clement (00:09:28):—I mean it, and maybe that seems odd to you, and I think if it seems odd to you, it’s only because of oneof two things. One is that claim would be a loser on the merits based on the fact that they’re suing on thewrong patent or there’s no infringement or what, you know, whatever the basis is for that to be a deadbang loser on the merits as a statutory matter, that may make it seem counterintuitive to you. Or it couldbe just because there’s like three or four decades of these cases that conflate the two, but with all respect,I think, —it’s standing Article III, standing is trans-substantiate. So even to say, well, is there Article IIIstanding to bring a patent claim, is with all due respect, not right. It’s just the questions, is there Article IIIstanding, and if there is, we can talk about all the statutory prerequisites and we can bring (b)(6) motionsand we can deal with issues of waiver in the, like under (b)(6), but not (b)(1).Judge Stoll (00:10:23):I understand, your point is that all of that is taken care of the statutory or prudential standing.Paul Clement (00:10:29):Absolutely. Absolutely.Judge Stoll (00:10:30):What about the fact that Judge Stark three times said, that he did not think that VMware weaved itsargument of regarding prudential standing?Paul Clement (00:10:42):So, —we disagree with him on that. I think if you look for example at the place I ask you to look is appendixpage 370, where the legal authority for VMware’s argument about standing is presented. There’s areference to (b)(1), not (b)(6). There’s a reference to subject matter jurisdiction, not failure to state a claim.And there are three separate references on that one page to constitutional standing. So one reference toprudential standing, and it never sort of sees the light of day again. Then of course, Judge Stark is emphaticthat he’s ruling on constitutional standing, but I do want to be equally emphatic that it really doesn’tmatter. I mean, at this juncture, because we were poured out of court and dismissed as a party to thislawsuit because we lacked Article III injury. That’s his holding in his order dismissing us as a party. Nowthat’s just wrong and it’s mandamuosly wrong. If you can, if mandam—Judge Taranto (00:11:37):What on the assumption, which I know you disagree with, you just said, you disagree with that any kind oflack of statutory right to be a plaintiff here was preserved, why should we not affirm on the ground thatyou didn’t belong—as a statutory matter for exactly the reasons that he, that Judge Stark relied on—butunder the constitutional label, at least, at least initially. Well, so turn what practical differences there.Don’t worry about the clock.Paul Clement (00:12:15):Okay. There’s—I have two responses. One, it shows you the practical difference, but the other is, of coursewe think that we have an exclusive license.

Judge Taranto (00:12:24):Right.Paul Clement (00:12:25):Because that’s what Section Two of the licensing agreement says,Judge Taranto (00:12:28):Right. Assume that away too.Paul Clement (00:12:29):Okay. Okay. Then assume that away. Which of course I hate to do, assume that away. It still makes a worldof difference because if it’s statutory, if we have a statutory prerequisite problem, but not an Article IIIproblem, we’re still a party to the case. We can fix the standing problem. We can fix the standing problemby retroactively reforming the contract to reflect the party’s intent. We can do that. We can then seek apreliminary injunction before this retrial happens in 2023, and we can get ourselves back in the case. Sothere’s a huge difference between statutory standing and Article III standing. And I think, you know, I don’tthink any of this turns on policy arguments, but I do think getting this right and making clear—if there’s anyproblem here, it’s a statutory problem—Paul Clement (00:13:19):—and not an Article III problem—has a huge policy benefit, which is, it makes some of these defects inlicensing agreements and the like, it makes them fixable. If they’re statutory, they’re fixable; that’s thelesson of Schwendimann. The problem there was fixable because it was only statutory. Judge Reyna indissent said, no, it’s Article III, so it’s not fixable. And with all due respect, as a generalist who doesn’tunderstand all of the subtleties of some of these exclusive license things, I mean, I read this license and Ithink, wow, it grants an exclusive license, game over.Judge Taranto (00:13:56):Right. Unless the standard for having the statutory right suit—is not properly described as having anexclusive license, but rather having an exclusionary right. Namely a right to exclude others by going afterthose others. And then the question would be whether the, you don’t have any proprietary rights portion,takes away what would otherwise be—a corollary of exclusive license by itself.Paul Clement (00:14:24):Yeah. And—Judge Taranto (00:14:25):—that’s what I took to be Judge Stark’s view of this license.Paul Clement (00:14:29):Sure. And I find that baffling. I mean, I’m just—a humble generalist. I find that conclusion baffling becauseSection Two gives us—gives Inc. an exclusive transferable license, worldwide license.Judge Taranto (00:14:46):To practice. But the—Paul Clement (00:14:47):Sure, but it’s transferable, that’s granting a patent, right? That’s a clear, but I digress.

Judge Taranto (00:14:52):Sorry, but the Title 35 in patent protection, doesn’t give anybody a right to practice anything. It gives themonly a right to exclude others. That’s what 154 says. So, the fact that you have a right to practice, andyou’re the only one, and—you have a promise that you will be the only one does not automatically mean itso 154 right. There’s been a longstanding sort of moral based implication that in the absence of anythingelse, it carries the right to go and exclude others. But, and—this provision, this no proprietary rightsprovision, I understand Judge Stark to have said, that essentially wipes out the presumptive implicationthat one thing means the other.Paul Clement (00:15:34):So two points, your honor. One is, I’ll grant you all that, but again, as a generalist, the first principle ofcontract interpretation, the first principle of constitutional interpretation, it says it in Marbury is you don’tinterpret one provision of a document to render another provision nugatory. So I don’t think that there’sany problem with Section Eight and Section Two coexisting, and Inc. having an exclusive transferablelicense, which is after all what it says. And it seems if it’s both exclusive and it’s transferable, so I canessentially control whether I exclude somebody else by transferring the license, that seems like more thanenough to give you exclusionary rights. But if I’m wrong about that, and maybe I am, it seems like,especially in a parent subrelationship where that is clearly what they intended the ability to fix it after thefact, when it’s pointed out, as opposed to have a whole lawsuit after eight citizens of Delaware havewasted their time in a trial and there’s a 236 million verdict, to at that point, sort of say, ah, you shouldhave—if you had only started Section Two with, notwithstanding anything in Section Eight, then there’d beno problem at all.Paul Clement (00:16:51):It seems to me, my only point here it was that treating these things as statutory means they’re fixable.Judge Stoll (00:16:58):Was there any attempt to fix it? I understand, maybe not because it was found to be a constitutionalproblem, but was there any proffer or suggestion that it would be fixed?Paul Clement (00:17:08):We have taken the trouble to figure out how we would fix it, and I’m happy to proffer to you right nowthat we’ll fix it today—we’ll fix it tomorrow if it’s statutory. But we’ve been poured out a court for Article IIIinjury. So because of that, there’s no ability to fix it and there’s no point in fixing it. But we’d be happy todo it. I think a notwithstanding clause would do the trick, myself. I don’t even think we need that becauseboy, I think an exclusive transferable worldwide license ought to convey exclusionary rights, particularlywhen it’s granted by a subsidiary. I mean, if you take a step back, the context of this is this, is it all part—Judge Hughes (00:17:49):Can I just the specific language, I understand what you’re saying. And if we were just talking aboutlanguage that said exclusive transferable, worldwide license, your argument would have a lot of force, Ithink even with Clause Eight, but the remainder of that sense is to use the products, which suggests to methat it is a use license or a more limited license to use the products, but not necessarily have any rights inthe patent. So, I mean, that seems to me to be the plain reading of Section Two and Section Eight togetheris Inc. gets to use the patents, but the other company owns the patents. Now I understand your argumentis even if that’s true, you want to fix it, but doesn’t that seem to be—that is the way I would read thislicense and it, to me that gives you statutory problems here.Paul Clement (00:18:48):Okay. Again, I will it—if it turns on that subtlety again, I think transfer the right to use is a right to grant

patent rights to other people to use would use to use. But that’s one of the patent rights, I think.Judge Taranto (00:19:04):No—it isn’t.Judge Taranto (00:19:06):The patent statute does not give anybody a right to use anything. The patent statute gives only a right toexclude others for using it.Paul Clement (00:19:14):Right. But if I have the exclusive worldwide right, and it’s transferable, I get to decide who’s excluded, andwho’s not. If I give you a transfer of this license—you can practice the patent. If I don’t—Judge Taranto (00:19:28):I’m sorry you don’t get to decide, if you don’t want somebody else to practice, you don’t get to decidewhether they’re excluded the patent owner does. You can decline to enable them to—but you don’t get toexclude them just because you have an exclusive license.Paul Clement (00:19:49):I would understand that we would both get because of this license and to, forgive their infringement,which is part of an exclusionary right. And also what this court said in Lone Star is the other thing that givesyou an exclusionary right is a right to essentially grant the ability to exercise the patent, which if it’stransferable, it seems like it, it gives it to it. And that’s my reading of the patent. I mean, that’s my, thelicense, but in a sense, this [inaudible] makes my point, which is if it’s this complicated, isn’t it a betterworld, where it’s fixable so that if you point this out, because you preserve it in 12(b)(6), and somebody,especially in a parent sub context where it’s just incredibly easy to fix it. So somebody points it out—Judge Taranto (00:20:34):Is it incredibly easy to fix it without destroying whatever the tax or other benefits are, of the reason of—that led to this kind of transfer into this up?Paul Clement (00:20:45):I am informed that the answer is, yes, it’s incredibly easy to fix this without under undermining the taxconsequences of this at all.Judge Taranto (00:20:54):And—what do you understand from Schwendimann are necessary preconditions for a retroactive fix byway? Was Schwendimann like a contract reformation case?Paul Clement (00:21:08):Yes, contract reformation under Minnesota law and under Minnesota law. And it—Judge Taranto (00:21:13):And here, do I understand here, this license is governed by Canadian Ontario law.Paul Clement (00:21:18):That’s correct.

Judge Taranto (00:21:18):But nobody’s made anything of any specific jurisdiction?Paul Clement (00:21:21):Nobody’s made anything that, you know, turns on that.Judge Taranto (00:21:23):Okay. That as a substantive matter. Are there any preconditions for a retroactive fix from under thereformation law?Paul Clement (00:21:31):Not that I’m aware of.Judge Taranto (00:21:33):Okay.Paul Clement (00:21:34):And again—presumably if you underscore that this is statutory, underscore that statutory defects arefixable, at least potentially if the law allows, then we would fix it, and, you know, I’m sure my friends atVMware, if there’s an argument to made under Ontario law, that it’s not fixed or it’s not retroactiveenough, I’m sure they would be happy to make that argument so we could have all that. But right now wecan’t because—we’ve been dismissed as a party to the litigation in [inaudible] based on what seems to meto be a clear and indisputable error of what’s required by Article III.Judge Stoll (00:22:13):In your briefing, you rely on Lone Star, and Schwendimann, and Lexmark. Do you have any other cases thatsupport your view that there could be constitutional standing without exclusionary rights, you know, inother intellectual property areas? I just—Paul Clement (00:22:32):Well, I mean, there are other cases—under the, I mean, obviously Lexmark’s a trademark case. There havebeen—the Supreme Court since then has decided that the registration requirement under the CopyrightAct is merely statutory. It’s not jurisdictional. So, but I, I think if you look at this from a generalistperspective, as opposed to a patent specific perspective, there are tons of cases. I mean, injury to acompetitor, loss of market share, forced firing of your employees, because you’re having competitivedisadvantages—all of that is the classic injury, in fact. And so, I think the only way that you could say thatdoesn’t count here, is by basically saying there’s a special rule for Article III injury in fact in patent cases orintellectual property cases, and with all due respect, that’s kind of the opposite of the thrust of Lexmark,and Schwendimann, and Lone Star. And, you know, I mean, there’s a broader obviously, so of SupremeCourt cases, it sort of suggests that—when it comes to something like Article III, you don’t have specialpatent rules. Article III is Article III is Article III.Judge Stoll (00:23:46):So for a non-practicing entity—Paul Clement (00:23:48):Right.

Judge Stoll (00:23:49):—I would understand that their only injury could be their loss of their exclusive rights. It would be adifferent analysis and you can have different kinds of injury for different parties.Paul Clement (00:23:57):Yeah.Judge Stoll (00:23:59):Okay.Paul Clement (00:23:59):Yeah, absolutely. Absolutely. But, and if I could—I know we’re over time here, so I don’t want to overstate.Judge Taranto (00:24:04):Begin to wrap up.Paul Clement (00:24:05):Yeah. I’ll begin to wrap up by finishing my answer to your question by saying as, as sort of another kind ofpolicy argument for this result being sensible. I mean, what Judge Stark envisions in the retrial is that IP willbe a party. And he even said at one point as a non-practicing entity. And you won’t have the only entitythat practices the patent and experiences the flesh and blood injuries in the case under his worldview. Andthat seems to be, especially if, and of course, if there’s problem with the license agreement, we can fix it ifit’s statutory, but that seems like an odd result. And it seems to me like, you know, whatever is the case ofa situation where you have a bare licensee and a thousand people are licensed under the patent. Whenyou have parent subsidy relationship that you have the sole licensee, they are the only party practicing thepatent. I mean, it’s a bit odd to have a case without that party present. And if treating this as statutoryallows you to make sure that that happens and doesn’t not happen because of some defect in the way thelicensing agreement was written, that seems to me to be an affirmative virtue of our position. That savedthe rest of my remarks rebuttal. Thank you.Judge Stoll (00:25:19):Thank you. 20?Judge Taranto (00:25:22):30, to even it out.Deanne Maynard (00:25:43):May it please the Court, Deanne Maynard for VMware. I’m going to address the reasons, the rule thatCirba Inc. seeks is wrong, but mandamus should be denied here for three independent reasons in anyevent. First, they seek a new rule, a change in the law, not enforcement of a clear and indisputable, right.Second, they forfeited the very question they present to this court as Judge Stark found. And third, theanswer to the question would not change Inc.’s dismissal, because Judge Stark found that VMware timelyobjected to Inc.’s bare licensee status, regardless of the label of the challenge.Judge Taranto (00:26:23):But just on that last point, if Mr. Clement is right,—that his client could fix the problem if it’s a statutoryproblem and indeed fix it retroactively, although I’m not sure his argument depends on this, then his clientmight be able to come back into the case. Wouldn’t that be a consequence?

Deanne Maynard (00:26:44):So it’s too late for Inc. to argue that they can fix this vis-à-vis trial that’s already happened, Your Honor.They—we put at issue whether or not Inc. had an exclusive license in the pretrial order, as Judge Starkrecognized, they came back and said, there are no facts we tried about that. And they asked Judge Stark toput it off and decided after the trial and significantly, they agreed with us, that if they were just a barelicensee, they would lack standing to sue. So they knew, and whether they thought it was constitutional ora statutory, they knew that they had to prove that they were more than a bare licensee to prove theirclaim. And they chose two sophisticated entities to rest on the agreements and push the issue to after trial.They’ve affirmatively weighed—Judge Stoll (00:27:37):Counsel, it it’s your position that they would’ve had to have said we will, if we’re found, if there is noprudential standing here, we will agree that we cannot fix this agreement—that we will not even try tosubmit a new agreement or try to fix it. They that’s what you’re saying. You’re saying that they agreed thatif the court found no statutory standing, that they would not take the time to fix their agreement—itseems like a little bit of a stretch, to be honest, with respect to just what they said, which was that we thinkit’s not a bare license.Deanne Maynard (00:28:11):Well—I think I’m making two points, Judge Stoll. So one is, that we joined issue on this question before thetrial, on whether or not they had an exclusive license or not, and they said three things about that. One,please decided after the trial. Two, there are no facts to be tried. That’s at A363 and A364, and then four,they agreed that a bare licensee would lack standing. That’s at A368. And so whether they have the burdento prove their infringement. And so whether it’s a constitutional question, there’s licensee standing, orwhether it’s a prudential statutory standing question, they had the burden to prove it. And theyaffirmatively waived any opportunity to prove it on the facts, which reformation would require andcontrast this to Schwendimann.Judge Taranto (00:29:03):Okay, let you get, so what are the facts relevant to justifying a Schwendimann-like reformation?Deanne Maynard (00:29:11):Well, so in Schwendimann, as soon as her standing was challenged, she came in and said, I can reform itunder Minnesota law; there’s just a clerical error. I had legal title all along and there’s a clerical error in thewriting. That was her argument—Judge Taranto (00:29:30):It’s not cause—this is quite important to me. So I don’t want to go over this too quickly. Does thereformation standard require that something like a clerical error, as opposed to, of course we meant to dowhat this contract says, but boy, we didn’t know the consequences. We weren’t really want a differentcontract than the one that fairly interpreted we currently have. And we’re now going to create thatdifferent one retroactively, because now that we understand the consequences we clearly would, wouldhave done the new one.Deanne Maynard (00:30:10):Well so in Schwendimann, this court addressed it under the state law that governed bare—Minnesota law.This issue has never been—they’ve never explained how they could fix it here. They’ve this issue is like, it’slike triple forfeited, Judge Taranto. So if they, they needed to raise it when we challenged their barelicensee status. If they wanted to prove something about their licensee status that went outside thedocuments or somehow fix the documents, then they needed to do that at the trial. They—

Judge Taranto (00:30:42):Why—is it a forfeiture of the opportunity to correct? A consequence of an interpretation when all you,when, when you limit yourself to saying this is actually an incorrect interpretation that’s being proposed,and we, we think that the right inter

alternative and competes with both Cirba and VMware, would have standing, or at least be injured. Paul Clement (00:08:51): So if I'm understanding the hypo, right. I think the answer is yes. The reason I wanted to sort of, because even the way you formulated the question, I think actually encompasses both Article III standing and