[00:00:00] Speaker 06: For many years before the McKinney invention, people had been trying to improve the effectiveness of oxygen absorbers. [00:00:13] Speaker 06: They tried modifying all sorts of things, the proportions, pH, using different salts or liquids, but nobody as far as we know until McKinney had ever focused on selecting the type of iron powder as a way to improve the effectiveness of the absorber. [00:00:29] Speaker 06: McKinney discovered that particulate and neo-electrolyte... What does this have to do with your appeal? [00:00:34] Speaker 06: No, no, I just wanted to give some background. [00:00:36] Speaker 05: We don't need any background. [00:00:38] Speaker 06: Pactis, the accused infringer, uses an admittedly different but new iron powder in their oxygen absorber. [00:00:45] Speaker 06: They used neutrophine, an iron powder that did not exist at the time the invention was made, which was invented in 2005. [00:00:53] Speaker 03: During the prosecution, Maltz disavowed iron that was not electrically reduced. [00:01:00] Speaker 03: And Packard's nucleophine iron is not electrically reduced. [00:01:06] Speaker 03: Is that right? [00:01:08] Speaker 06: Neutrophine is not electrically reduced, but we did not disclaim all electrically reduced iron. [00:01:14] Speaker 06: We only disclaimed Pempler's hydrogen and yield iron. [00:01:20] Speaker 05: Well, I believe your disclaimer is about, isn't it the timing? [00:01:25] Speaker 05: Isn't it to the nature of the timing [00:01:30] Speaker 05: whether or not something is reduced prior to or after annealing? [00:01:34] Speaker 05: I mean, isn't that the nature of your disclaimer? [00:01:37] Speaker 06: The disclaimer strictly focused on whether Heffler's hydrogen annealed iron, which was in accordance to the particular anneal, or electrolytic-reduced annealed iron, as being subsequently annealed. [00:01:54] Speaker 06: However, we are not proceeding under a case of literal infringement [00:01:58] Speaker 06: but rather the doctrine of equivalence. [00:02:01] Speaker 06: So, PERI, which is particularly, and you have electrolytic-reduced iron, we call PERI for short, is equivalent to neutrophine. [00:02:10] Speaker 06: And neutrophine, which did not exist, and the manufacturer has called chemically identical to electrolytic iron. [00:02:19] Speaker 06: It but didn't exist, and it wasn't foreseeable, so it can be a disclaimer. [00:02:24] Speaker 05: Your disclaimer was, among other things, the iron is electrolytically reduced iron, which has been subsequently annealed. [00:02:34] Speaker 05: Is neutrophine electrolytically reduced iron, which has been subsequently annealed? [00:02:39] Speaker 06: No, Your Honor. [00:02:40] Speaker 06: If it was, we would be proceeding under a literal infringement. [00:02:44] Speaker 05: Is it annealed at all? [00:02:45] Speaker 06: No, Your Honor. [00:02:48] Speaker 05: Well, I don't understand how you can proceed under the doctrine of equivalence in light of prosecution history. [00:02:53] Speaker 05: the stopple. [00:02:54] Speaker 05: How can you proceed on the doctor of equivalence when you've limited yourself to electrolytically reduced iron that has been subsequently annealed? [00:03:02] Speaker 05: I mean that seems to be the crux of it. [00:03:05] Speaker 05: You say there's absolutely no teaching in Pemsler that the hydrogen annealed iron has been electrically reduced before it has been hydrogen annealed. [00:03:13] Speaker 05: It seems like subsequent annealing is a critical facet of your claims as [00:03:20] Speaker 05: articulated in the prosecution history. [00:03:22] Speaker 05: And so if neutrophine has not been subsequently annealed, I don't know how you can get that back. [00:03:29] Speaker 06: Well, Your Honor, because the scope of the disclaimer was only for Pendler's hydrogen annealed iron. [00:03:37] Speaker 06: The district court held that Multizor was merely differentiating its product from Pendler's product. [00:03:44] Speaker 06: Not that there was a disclaimer. [00:03:47] Speaker 06: In their plane construction decision, [00:03:50] Speaker 06: And that part of the claim construction has not been appealed in this case. [00:03:55] Speaker 06: So therefore, the district court holding that multis are merely differentiated, Pemsler's hydrogen annealed iron from Perry stands. [00:04:06] Speaker 02: I understood the prosecution's history to center on the timing of when annealing takes place. [00:04:15] Speaker 02: And that they're the applicant. [00:04:20] Speaker 02: argue that it only must take place after electrolytic reduction. [00:04:24] Speaker 02: And now it seems like you're arguing something different here. [00:04:29] Speaker 06: Your honor, that would be true if we were proceeding under a literal infringement theory. [00:04:34] Speaker 06: But we're proceeding here under the doctrine of equivalent under a theory that's in the manufacture of both the accused iron powder and the claimed iron powder has held to be [00:04:46] Speaker 06: chemically identical. [00:04:47] Speaker 06: This kind of usifying did not exist, nor was it foreseeable in 1995. [00:04:53] Speaker 06: Therefore, there isn't a disclaimer. [00:04:56] Speaker 02: So I don't understand. [00:04:58] Speaker 02: So now you're saying that it doesn't matter when the annealing takes place? [00:05:02] Speaker 02: Correct, Your Honor, because we're proceeding under the entire thing is... But in the prosecution history, you argued that it has to take place after the electrolytic reduction. [00:05:15] Speaker 02: So you disclaimed the timing of the annealing. [00:05:21] Speaker 03: Correct. [00:05:21] Speaker 02: And you gave that up to the public. [00:05:23] Speaker 02: Any annealing that takes place prior, that's what you gave to the public. [00:05:29] Speaker 02: And now it seems like you're trying to reclaim them. [00:05:31] Speaker 06: Well, Your Honor, I'm not attempting to reclaim annealing. [00:05:35] Speaker 06: I'm simply attempting to... You're not annealing. [00:05:37] Speaker 02: You're trying to reclaim annealing before the electrolytic reduction. [00:05:43] Speaker 06: Well, Your Honor, [00:05:44] Speaker 06: The scope of the disclaimer was merely for hydrogen annealed iron. [00:05:49] Speaker 06: And this argument that we gave up everything was not argued by passive during summary judgment. [00:05:57] Speaker 06: And under this court case law, arguments that were not made to the district court are not preserved for review by this court. [00:06:08] Speaker 02: All right. [00:06:09] Speaker 02: It seems to me that you've [00:06:11] Speaker 02: The reasons that I articulated to you are the very same reasons that the court basis decision. [00:06:17] Speaker 06: Those were not the arguments advanced by PACTIV during summary judgment. [00:06:22] Speaker 06: So you're saying they waived those arguments? [00:06:24] Speaker 06: Yes. [00:06:24] Speaker 06: Yes, Your Honor. [00:06:26] Speaker 06: Those arguments are waived because PACTIV merely made a distinction based on hydrogen and yield iron during summary judgment as its disclaimer argument. [00:06:38] Speaker 03: Wait a minute, though. [00:06:42] Speaker 03: You've got claims for tortious interference, false marking, Lanham Act. [00:06:48] Speaker 03: Tortuous interference requires unjustified interference by the defendant. [00:06:59] Speaker 03: Let me go through these all and then lump them. [00:07:03] Speaker 03: False marking requires purposeful deception. [00:07:09] Speaker 03: Let's lump those two together before I go to Lanham. [00:07:11] Speaker 03: Given the nature of the arguments that we just had here, why can't they rely on their counsel's advice in good faith? [00:07:22] Speaker 03: Because that would be bad faith. [00:07:24] Speaker 06: Your Honor, there's simply no evidence except for that pact that was presented that they relied on attorney advice, except for a conclusory statement that they did. [00:07:34] Speaker 06: There were no affidavits submitted by these attorneys that allegedly gave advice. [00:07:41] Speaker 06: There is nothing in any discovery detailing what this advice was. [00:07:49] Speaker 06: So therefore, mere conclusory statements are not sufficient to award some re-judgment. [00:07:56] Speaker 06: And as the not moving cardinal deserve, of course, is entitled to all inferences in its favor. [00:08:03] Speaker 03: You have testimony by Cardale under the Lanham claim that [00:08:10] Speaker 03: They didn't care whether the patent was valid or not. [00:08:13] Speaker 03: So since the deception has to be material, and that is it has to be likely to influence purchasing decisions, and since Cargill says they don't care, how do you have a Lanham claim? [00:08:25] Speaker 06: Well, we have a Lanham claim because of the other parts of the deposition testimony by Cargill, which raised an issue of fact for trial. [00:08:32] Speaker 06: Cargill testified that they would not consider testing or reviewing multi-service product at all. [00:08:39] Speaker 06: unless Multiserve identified them against PACT's patents. [00:08:42] Speaker 06: Cargill also testified that they would... Well, that's not exactly what he said. [00:08:46] Speaker 03: He said, I don't think I would. [00:08:51] Speaker 06: He testified more than once, Your Honor, that they would not book at PACT or TTA Multiserve's product at all. [00:08:59] Speaker 05: Yes, but even if you're right, and even if all inferences went in favor of your articulation of cargo testimony, the test requires a substantial portion of HACVS customers being deceived. [00:09:11] Speaker 05: And you've presented evidence of one potential customer, if everything is in your favor. [00:09:16] Speaker 05: How does that meet your obligation of showing a substantial portion of HACVS customers? [00:09:21] Speaker 06: Your Honor, I don't believe that we included this [00:09:23] Speaker 06: this in the record, but Cargill is the major customer. [00:09:28] Speaker 03: Well, if it's not in the record, how are you arguing that? [00:09:30] Speaker 06: Well, it's in the underlying trial court record. [00:09:32] Speaker 06: It's not before this course. [00:09:35] Speaker 06: And I just wanted, because I don't have a joint appendix site to give you on that. [00:09:39] Speaker 06: But Cargill is the major customer. [00:09:44] Speaker 06: They supply Walmart. [00:09:45] Speaker 02: But what's the competitive horror that you suffered as a result of the Lanham Act claims? [00:09:51] Speaker 06: The competitive harm, first I want to advise the court that we are on a state of damages discovery. [00:10:00] Speaker 06: Discovery has been bifurcated. [00:10:02] Speaker 06: However, we were damaged because Cargill, if I'd like to just respond to that question, I see that my time is up. [00:10:13] Speaker 06: But then with Cargill, we were unable to even bid [00:10:19] Speaker 06: on our oxygen absorbers, they refuse to even look at multi-absorbed products because they were so stooped by PACTIS patents and the comments that PACTIS made towards them. [00:10:30] Speaker 05: Okay, thank you. [00:10:32] Speaker 05: We hear from the opposing council. [00:10:41] Speaker 05: Mr. Shulman? [00:10:42] Speaker 04: May it please the court? [00:10:44] Speaker 04: There are two independent dispositive patent issues in this case. [00:10:48] Speaker 04: Each presents [00:10:50] Speaker 04: Textbook examples of doctrine of equivalence, limited by prosecution history of stoppable. [00:10:54] Speaker 04: First, argument-based stoppable related to the iron limitation, and amendment-based stoppable related to the salt limitation. [00:11:01] Speaker 04: Either one provides an independent grounds for affirming summary judgment of non-infringement flow. [00:11:07] Speaker 04: I want to address what Ms. [00:11:09] Speaker 04: Friedman said about the disclaimer being only about a needle. [00:11:12] Speaker 04: Let's take a step back to the record, page 585, where the applicant says, [00:11:18] Speaker 04: the iron which forms the subject matter of the present invention, the electrolytically reduced iron, which has been subsequently annealed. [00:11:26] Speaker 04: The reason for that was because the applicant had found two pieces of prior iron, Yoshikawa, which was electrolytically reduced iron on its own, and Pensler, which was annealed iron, and said, you put these two things together, and you get particulate annealed electrolytically reduced iron. [00:11:44] Speaker 04: Balthasar wasn't just displaying annealed iron when it said, [00:11:48] Speaker 04: You can't just put those two things together and get it. [00:11:50] Speaker 04: You have to do one, electrolytically reduced iron, and then subsequently anneal. [00:11:55] Speaker 04: So to say that the disclaimer was only to the annealing ignores the fact that there was a combination of references here, electrolytically reduced iron and annealed iron. [00:12:04] Speaker 04: In addition to that, the specification identifies hydrogen reduced iron, which the accused iron is, neutrophinous hydrogen reduced iron. [00:12:13] Speaker 04: The specification in two places, including on page 160, [00:12:17] Speaker 04: says that hydrogen-reduced iron existed, it was simply too slow. [00:12:22] Speaker 04: So we have a disclaimer. [00:12:24] Speaker 04: Not only hydrogen-reduced iron, we know that particulate electrolytically-reduced iron, particulate annealed electrolytically-reduced iron, cannot cover just hydrogen-reduced iron, because that was already in the prior art. [00:12:36] Speaker 04: We know it can't cover electrolytically-reduced iron alone, because that was the Yoshikawa reference. [00:12:41] Speaker 04: We know it's not annealed iron alone, because that was the Pemsler reference. [00:12:45] Speaker 04: We know it's not even type electrolytically reduced iron that has been annealed at the same time or annealed before, because that was the combination the examiner said was obvious. [00:12:54] Speaker 04: It is only, the only thing that this claim covers is electrolytically reduced iron, which has been hydrogen annealed. [00:13:00] Speaker 04: Now, Multisorb argues that neutrophine was not foreseeable under the Festo exemption for foreseeability. [00:13:08] Speaker 04: But foreseeability was the patentee's burden, and it requires more than simply saying, [00:13:14] Speaker 04: the accused equivalent did not exist at the time. [00:13:17] Speaker 04: And on page 42 of their brief, they make their argument for foreseeability. [00:13:21] Speaker 04: And they underline one sentence. [00:13:23] Speaker 04: And that one sentence is to emphasize that there was no equivalence because Neutrifying did not exist at the time. [00:13:30] Speaker 04: That is their only evidence that Neutrifying is not foreseeable. [00:13:34] Speaker 02: And if you- Well, what's our case law on that particular issue? [00:13:37] Speaker 04: Well, the Honeywell case is directly on point. [00:13:39] Speaker 04: In Honeywell, the claim was to guide things. [00:13:43] Speaker 04: And there was a prior art which used a switch and some sort of algorithm, which was known. [00:13:53] Speaker 04: And some 10 years after the amendment to guide veins was made, the accused came along and used a switch, but they used guide veins. [00:14:03] Speaker 04: They essentially do what the guide veins had always done independently. [00:14:08] Speaker 04: And there, the court said, not understanding the fact, [00:14:10] Speaker 04: that a switch plus guide vanes did not exist at the time. [00:14:15] Speaker 04: They said, the know-how to put those two things together certainly existed. [00:14:19] Speaker 04: And there's a quote in Honeywell, page 1314 of the Honeywell decision, which is directly on point. [00:14:24] Speaker 04: And this court said, foreseeability does not require that the adduced product or process be foreseeable, nor that any equivalence exist at the time. [00:14:33] Speaker 04: Rather, foreseeability only requires that one of ordinary skill in the art [00:14:38] Speaker 04: would have reasonably foreseen the proposed equivalent at the pertinent time. [00:14:43] Speaker 04: So if we're talking about the fused neutrophine iron, the patent on the neutrophine is in the record. [00:14:50] Speaker 04: This is at 3284 to 3289. [00:14:52] Speaker 04: And we'll take some insights to that patent also on page 42 of its brief to talk about neutrophine. [00:14:57] Speaker 04: And neutrophine has two lines in the entire patent which explain how that hydrogen-reduced iron was produced and got essentially this better morphology. [00:15:06] Speaker 04: It says it was treated at, quote, somewhat higher temperature and or somewhat longer heating times. [00:15:13] Speaker 04: You essentially turn the knob on the oven. [00:15:15] Speaker 04: That was within the skill of one of ordinary skill in the art of the time. [00:15:19] Speaker 05: Can I ask you a procedural question? [00:15:21] Speaker 05: Certainly. [00:15:23] Speaker 05: Are all of the claims patent claims that are at issue in this case [00:15:28] Speaker 05: Were they all subject of the re-examination that has already taken place, the PTO? [00:15:34] Speaker 04: No, Your Honor. [00:15:35] Speaker 05: That's what I'm trying to figure out, the claims. [00:15:38] Speaker 05: The PTO has struck all of those claims, and that's already been affirmed by us? [00:15:43] Speaker 04: Those are PACTIF's affirmative claims. [00:15:48] Speaker 04: These are multi-service patents that they assert in encounter claims. [00:15:51] Speaker 04: So five of the PACTIF patents have been rejected by the PTO, [00:15:56] Speaker 04: And then that rejection was affirmed. [00:15:58] Speaker 04: There were two additional patents that were put into re-examination at a separate time. [00:16:03] Speaker 04: Those were also rejected by the PTO. [00:16:04] Speaker 04: Those are, in fact, up before the court right now. [00:16:09] Speaker 04: But they are completely different patents than the ones on the field here. [00:16:13] Speaker 04: So because neutrophiline was foreseeable at the time, and does not fall within any other festive exception, and was hydrogen-reduced iron, which was disclaimed, [00:16:24] Speaker 04: It falls within the prosecution history sample and cannot be found to be infringing under the doctrine of equivalence. [00:16:31] Speaker 04: Turning to the salt, the salt means money. [00:16:34] Speaker 04: On its face, multi-source claim construction creates multiple inconsistencies. [00:16:40] Speaker 04: If it wanted salt to mean acid, it could have written acid. [00:16:44] Speaker 04: If it wanted salt to mean a source of electrolytes, it could have said a source of electrolytes. [00:16:50] Speaker 04: Instead, it used the word salt [00:16:52] Speaker 04: to describe a class of chemicals, every one of which in the patent, and this is at A161, column four, lines nine through 17, every one of which is an actual salt. [00:17:03] Speaker 04: And Multisorp's 30B6 witness testified to this deposition at page 1221 of the record, lines two through six. [00:17:10] Speaker 04: Every one of those compounds is a salt created by the combination of an acid and a base, which is the district court's point of disruption. [00:17:19] Speaker 04: The district court reviewed the prosecution history, [00:17:21] Speaker 04: including that deposition testimony, extrinsic evidence, and dictionaries, which is entitled to deference under TEVA, and determine that the most logical definition of salt is from the handbook in chemistry and physics. [00:17:33] Speaker 04: That's at page 19 of the district court's decision. [00:17:36] Speaker 04: The handbook of chemistry and physics is at 922 of the record. [00:17:40] Speaker 04: That's important because when multi-sourced witness was asked, where would one of ordinary skill in the art oxygen absorbers look to find the definition of salt? [00:17:49] Speaker 04: At page 1221 of his deposition, he said the handbook of chemistry and physics. [00:18:00] Speaker 04: Sorry, I keep misciting the date where he talks about every one of the salts in the specification being an actual salt in interclinic productions at 1256 to 1259 of his deposition. [00:18:12] Speaker 00: So Multisorb's witness says, where do you look? [00:18:14] Speaker 04: He looked at a handbook of chemistry and physics. [00:18:16] Speaker 04: The court looked at a handbook of chemistry and physics and found that salt is the product of acids and bases. [00:18:22] Speaker 04: The accused product does not use a salt. [00:18:24] Speaker 04: It uses malic acid. [00:18:27] Speaker 04: Now Multisorb came to the patent office and said, we want salt means. [00:18:31] Speaker 04: And the examiner said, salt means is broad. [00:18:35] Speaker 04: It's too broad. [00:18:35] Speaker 04: In fact, it's indefinite. [00:18:37] Speaker 04: And it's quote, and this is at page 569 of the record, [00:18:40] Speaker 04: beyond the scope of material in your invention. [00:18:43] Speaker 04: And Multisorb guessed what we wanted anyway. [00:18:46] Speaker 04: At page 578 of the record, they said, salt means as entire, we are entitled to claim a large, claim it broadly and get a large range of equivalents. [00:18:57] Speaker 04: Pat Office said, it's very broad, so broad I don't even know where it ends. [00:19:00] Speaker 04: Multisorb said, yes, we want it broad. [00:19:03] Speaker 04: An interview was conducted and they removed the word means and just went down to salt. [00:19:09] Speaker 04: between salt means and salt are things which might function like salt but are not salts, such as malic acid. [00:19:18] Speaker 04: Because multisorb disclaims things that function like salts but are not salts, things which might create an electrolyte like an acid, they cannot reclaim those under the doctrine of equivalence. [00:19:33] Speaker 04: I want to make one brief point on the argument that active waves [00:19:39] Speaker 04: anything other than hysterectomy. [00:19:41] Speaker 00: Test. [00:19:41] Speaker 00: Test. [00:19:42] Speaker 00: One, two, three. [00:19:44] Speaker 00: Check one. [00:19:44] Speaker 00: Check two. [00:19:46] Speaker 00: Check one, two, three. [00:19:55] Speaker 01: Check one, two, three. [00:19:56] Speaker 04: Check one, two, three. [00:19:58] Speaker 04: Check one, two, three. [00:19:59] Speaker 04: Check one, two, three. [00:19:59] Speaker 01: Check one, two, three. [00:20:02] Speaker 05: Check one, two, three. [00:20:03] Speaker 05: Check one, two, three. [00:20:04] Speaker 05: Check one, two, three. [00:20:07] Speaker 02: Check one, two, three. [00:20:08] Speaker 02: Check one, two, three. [00:20:08] Speaker 06: Check one, two, three. [00:20:09] Speaker 02: in the communication that was used ago. [00:20:14] Speaker 04: A lower spate. [00:20:17] Speaker 04: Practice that trolopism before the argument. [00:20:36] Speaker ?: Turn it up. [00:20:57] Speaker ?: And look at that, he's got a warning card. [00:20:58] Speaker ?: Okay. [00:20:58] Speaker ?: Now we're going to turn it down. [00:21:17] Speaker 00: Okay. [00:22:13] Speaker 05: All right. [00:22:13] Speaker 05: Can we keep going? [00:22:15] Speaker 05: Yep. [00:22:15] Speaker 05: Good. [00:22:16] Speaker 05: Please proceed. [00:22:17] Speaker 05: I think you said one final thing, which made me happy. [00:22:20] Speaker 05: So keep going. [00:22:20] Speaker 05: What's your final thing? [00:22:21] Speaker 05: That's where you left off. [00:22:22] Speaker 05: That's my recollection of it. [00:22:23] Speaker 04: Go with it. [00:22:27] Speaker 04: I will not contest final. [00:22:31] Speaker 04: The waiver argument. [00:22:33] Speaker 04: There was an argument made by Ms. [00:22:35] Speaker 04: Friedman. [00:22:35] Speaker 04: The Pact had waived anything other than arguing about hydrogen annealing. [00:22:38] Speaker 04: Pages 21, 35 to 37 of the record is Pactiff summary judgment brief. [00:22:43] Speaker 04: On those three pages, Pactiff did address hydrogen reduction, as well as 499 of the record in Pactiff's Markman brief, it raised hydrogen reduction. [00:22:52] Speaker 04: Finally, Ms. [00:22:53] Speaker 04: Friedman claimed there was no evidence relating to that advice of counsel in the record. [00:22:59] Speaker 04: Pages 1480 to 1482 was the deposition testimony of Gary Del Duca, referring to the fact that the marking was based on [00:23:07] Speaker 04: the advice of counsel. [00:23:08] Speaker 04: So while there was no affidavit from counsel, there was certainly deposition testimony of the witness reflecting the good faith belief based on the advice of counsel. [00:23:15] Speaker 05: Thank you. [00:23:16] Speaker 05: Both parties, Mark, actually. [00:23:17] Speaker 04: In fact, Multisorb for years was Pact of Supplier. [00:23:21] Speaker 04: And while it was Pact of Supplier, it did mark with the patent number until it ceased to be Pact of Supplier and then claimed that it was deceptive. [00:23:30] Speaker 04: There are no other questions? [00:23:31] Speaker 04: Well, I do have one. [00:23:32] Speaker 04: It's a throwaway, really. [00:23:34] Speaker 03: But you would agree that if you prevail [00:23:37] Speaker 03: in your substantive argument that the other claims necessarily go away, that is, false marking and so on, because they require bad faith? [00:23:49] Speaker 04: Well, Your Honor, back to Judge Moore's question. [00:23:51] Speaker 04: Those claims relate to the affirmative patent claims that PACT had earlier asserted. [00:23:56] Speaker 04: So prevailing on multi-service patent claims here really don't impact the business torch claims. [00:24:04] Speaker 04: The business tort claims fail for a number of other reasons, not the least of which is bad faith and the fact that of all of the four customers... But what I'm saying is, you can't have bad faith if you have a reasonable belief. [00:24:17] Speaker 03: And if in fact you're correct, you obviously do have a reasonable belief. [00:24:21] Speaker 04: That is absolutely true, Your Honor. [00:24:23] Speaker 04: Even if you don't have a reasonable belief, reasonableness of the belief isn't enough. [00:24:27] Speaker 04: Under Globetrotter and Mekone Gaming, you need actual knowledge that the statement is false. [00:24:32] Speaker 04: not even a belief that it might be false. [00:24:35] Speaker 04: And that's assuming that you've got objective baselessness, which is you don't even get this objective bad faith unless you do. [00:24:42] Speaker 05: Okay. [00:24:43] Speaker 05: Thank you. [00:24:44] Speaker 05: We have some rebuttal time. [00:24:51] Speaker 05: Ms. [00:24:51] Speaker 05: Friedman, please proceed. [00:24:53] Speaker 06: I'd like to address a couple of the points brought up. [00:24:56] Speaker 06: A2134 to 2135 contains pacted argument on estoppel. [00:25:01] Speaker 06: And I leave that to the court to review whether they consider PACTIV has waived the argument. [00:25:07] Speaker 06: PACTIV also never argued in the district court that neutrophine was foreseeable. [00:25:12] Speaker 06: So again, that argument would be waived. [00:25:14] Speaker 05: Well, it's not a matter of whether it's foreseeable. [00:25:16] Speaker 05: Isn't it just a matter of whether it amounts to a hydrogen-reduced salt, which the patent itself, hydrogen-reduced, am I getting it wrong? [00:25:25] Speaker 05: Iron. [00:25:26] Speaker 05: I mixed up the two, sorry. [00:25:28] Speaker 05: Hydrogen-reduced iron, I mean the patent itself expressly acknowledges that those are in the prior art, right? [00:25:33] Speaker 05: And isn't Neutrifying just a hydrogen-reduced iron? [00:25:36] Speaker 06: Neutrifying is a, as said by its manufacturer, Neutrifying is a new generation of hydrogen. [00:25:45] Speaker 05: I claim lots of things are new. [00:25:47] Speaker 05: You know, when I try to feed vegetables to my children as they don't like, I try to claim they're something different than what they really are. [00:25:52] Speaker 05: But didn't the district court make a fact-finding here that Neutrifying is in fact a hydrogen [00:25:58] Speaker 05: or hydrogen-reduced iron, isn't it? [00:26:02] Speaker 06: Yes, Your Honor, it is a hydrogen-reduced iron, but it was, Pogana specifically said that using the latest enrichment technology, they have been able to refine iron powder to a morphology and surface shape that was not previously possible. [00:26:16] Speaker 06: They also obtained a patent on it, Your Honor, which in my view shows it was not foreseeable. [00:26:25] Speaker 06: I'd like to also, with the court's permission, to move on to the salt argument. [00:26:31] Speaker 06: Very briefly, the salt argument in the construction by the district court was a dictionary definition, which is extrinsic evidence. [00:26:40] Speaker 06: The district court erred by going to extrinsic evidence rather than construing salt as a substance that combines with moisture to form an electrolyte, which malic acid undisputedly does. [00:26:52] Speaker 06: The manufacturer of Pactis oxygen absorber has testified. [00:26:55] Speaker 03: What about the argument that counsel made and from the record that there was a specific disclaimer when the examiner said that your broader language was too broad and was unacceptable and you reduced it back to salt? [00:27:14] Speaker 06: Because any disclaimer, Your Honor, was made in the grandparent application of 375 pre-Donaldson. [00:27:20] Speaker 06: And the meaning of the word means changed between the 375 and the 872 patents, which was filed post-Donaldson. [00:27:29] Speaker 06: If Multisorb has filed salt means in the 872 patent, that would undoubtedly have been a narrower term than just salt. [00:27:40] Speaker 06: Also, the manufacturer of Pactis Oxygen Absorber called malic acid an acid salt. [00:27:47] Speaker 06: And that's also on A3243 in their internal pricing sheets. [00:27:54] Speaker 06: With regard to the argument on false marking, Multisorb was a private label manufacturer on the oxygen absorber. [00:28:05] Speaker 06: Multisorb did not create the artwork. [00:28:07] Speaker 06: It merely put whatever artwork PACT is wanted. [00:28:11] Speaker 06: The manufacturer of the current oxygen absorber has said the same thing. [00:28:15] Speaker 06: Pactiff controlled what went on that. [00:28:18] Speaker 06: So it was Pactiff's decision to mark that absorber with a patent that they knew did not hover. [00:28:25] Speaker 03: You just innocently and with an empty head went ahead and did that. [00:28:34] Speaker 06: I would perhaps disagree with the empty head, Your Honor, but we do have the affidavit of Tom Powers in the appendix saying that this was a private label process and it was [00:28:43] Speaker 06: All we did was sell the oxygen absorber to PACTIV and PACTIV then sold it to customers. [00:28:50] Speaker 06: It's a private label process. [00:28:51] Speaker 06: They choose what goes on the label, not multi-absorb. [00:28:56] Speaker 06: Also, the district court erred by not applying the rebuttable presumption of deceptive intent on the false marking claim. [00:29:04] Speaker 06: PACTIV knew that the 250 patent did not cover it. [00:29:07] Speaker 06: And that is enough to trigger the rebuttable presumption. [00:29:10] Speaker 06: This district court failed to apply the rebuttable presumption. [00:29:14] Speaker 06: And also quickly on the other counterclaim, the district court failed to consider the evidence proffered by multisorb regarding PACT's other wrongful conduct, which is telling customers that multisorb's oxygen absorber violated the FDA GRAS standards and that using their absorber would be illegal. [00:29:36] Speaker 06: Okay. [00:29:37] Speaker 05: Thank both counsels. [00:29:38] Speaker 06: Cases taken under submission are...