[00:01:05] Speaker 04: The suitcase this morning is number 15-1132, the Ohio Willow Wood Company versus Elk South LLC. [00:01:14] Speaker 04: Mr. Lucan. [00:01:27] Speaker 05: Thank you, Your Honor. [00:01:27] Speaker 05: I think I'm going to reserve three minutes of rebuttal time. [00:01:31] Speaker 05: This case is back before the court following a trial on the inequitable conduct question based on this court's original decision in this case, reversing the summary judgment. [00:01:45] Speaker 04: This court found in the first appeal that the district court's judgment that nothing that was withheld from... Why don't you focus on, with respect to the second re-exam, the letters [00:02:00] Speaker 04: uh... and why the district court's finding of an equitable conduct with respect to the disclosure of the letters wasn't correct and the letters or do you have a situation where the second uh... re-exam is initiated specifically relying on the complex testimony in the comfort zone and uh... the examiner uh... finds the patents invalid based on [00:02:27] Speaker 04: the ad and the contest testimony and then you convince the board to uh... reverse uh... set aside the rejection and determined patentability based on the fact that the contest uh... testimony wasn't corroborate yes and the argument is that the letters corroborate i don't suppose you're disputing that are you actually in the secondary exam yes your honor the letters [00:02:56] Speaker 05: There's a pair of letters and a pair of attachments. [00:02:59] Speaker 05: The attachments were submitted, one in the first re-exam, one in the second re-exam. [00:03:04] Speaker 05: So the issue becomes what the cover letter said. [00:03:07] Speaker 05: The second re-exam, as your honor noted, was about the SSGL comfort zone ad. [00:03:13] Speaker 05: And the competitor that's at issue here, Silo Sheaf, made two separate lines of products. [00:03:18] Speaker 05: There's still a post, I'm sorry. [00:03:20] Speaker 05: Two separate lines of products. [00:03:22] Speaker 05: There's the Silo Sheaf, which was the subject of the first re-exam, [00:03:26] Speaker 05: The letters both made it perfectly clear that the letter and the attachment were about the silo sheath, not the SSGL, so that the application that was attached and closed with the first letter and the abandoned application was of record. [00:03:46] Speaker 05: All that providing the letter in addition would have done is make it even more clear that it not only wasn't but for material, it wasn't even material. [00:03:56] Speaker 05: because the application in the letter referred to the silo sheet that was in the first re-exam. [00:04:03] Speaker 02: Why isn't it fair? [00:04:04] Speaker 02: Well, I'm sorry. [00:04:05] Speaker 02: I cut you off. [00:04:05] Speaker 05: I was going to say, Your Honor, I'm probably going to head right where you pivoted me. [00:04:09] Speaker 05: The second re-exam, because the printed publication it issued there was clearly the SSGL, not the publications about the silo sheet. [00:04:19] Speaker 05: So the question of corroboration went to Mr. [00:04:22] Speaker 05: contested statements that the SSGL was on sale by the critical date, and evidence about the silo sheath was not relevant to that. [00:04:30] Speaker 05: And I think that was clear in the board's decision. [00:04:33] Speaker 02: Why is it not the case that the evidence suggests that the single socket gel liner, the SSGL, is among the product lines for the silo sheath line? [00:04:49] Speaker 02: Well, there's one of the ads, the one at 6246, specifically has the picture of the product, identifies a comfort zone single socket gel liner, and then down towards the bottom says silo sheath product line. [00:05:08] Speaker 02: It sounds like it's saying that this is one in the silo sheath product line. [00:05:12] Speaker 05: It suggests that the silo sheath [00:05:14] Speaker 05: and the SSGL could be seen as part of the same product line. [00:05:18] Speaker 05: That's a pretty important point, isn't it? [00:05:21] Speaker 05: Your Honor, I don't think so. [00:05:22] Speaker 02: Well, you just said that Silo Sheath and SSGL were clearly distinct. [00:05:27] Speaker 02: Yes. [00:05:27] Speaker 02: This suggests the contrary to that. [00:05:29] Speaker 02: So if it is true that they're not really distinct and that Silo Sheath is a description of a product line that includes SSGL, then the letters certainly take on a more important stillness. [00:05:40] Speaker 05: Mr. Comtesse's testimony [00:05:42] Speaker 05: that is to be corroborated or not is not about, in the second re-exam, is clearly not about the entire silo sheath line. [00:05:51] Speaker 02: Maybe not the entire line, but the question is when he says that in the silo sheath line we have products that have gel on only one side. [00:06:03] Speaker 05: The ad says the SSGL is in the silo sheath line. [00:06:07] Speaker 05: Mr. Comtesse's declaration, which is very thin, but his deposition testimony, which repeats it in more paragraphs, talks not about the entire line. [00:06:16] Speaker 05: He talks about the SSGLs. [00:06:18] Speaker 05: He doesn't have to talk about the entire line. [00:06:19] Speaker 02: It does have to be true of the entire line. [00:06:21] Speaker 05: No, Your Honor. [00:06:22] Speaker 05: The point is, SSGLs can be read as silo sheets, not all silo sheets are SSGLs. [00:06:29] Speaker 05: In the second re-example... Of what? [00:06:32] Speaker 04: I mean, you have the letters which talk about the silo sheet product line. [00:06:37] Speaker 04: as having this avoidance of bleed through. [00:06:41] Speaker 04: And then you have Comptest saying that, yes, that's what the comfort zone ad discloses with respect to the SSG ad. [00:06:51] Speaker 05: He doesn't suggest that all four pickup trucks don't have bleed through. [00:06:55] Speaker 05: That doesn't make any difference whether it's all four. [00:06:57] Speaker 05: But the ad, according to what the petitioner said in the reexamine, according to what the examiner found, [00:07:06] Speaker 05: to make this invalidating or rendering non-patentable is that one skilled in the art would have recognized this as a single socket gel liner, that this is an SSGL, not anything else in the silo sheath line. [00:07:21] Speaker 05: Those were dealt with previously. [00:07:23] Speaker 05: This is an SSGL. [00:07:24] Speaker 05: That is the basis of the examiner beginning the re-exam. [00:07:29] Speaker 05: That is the basis of his finding that it wasn't patentable. [00:07:32] Speaker 05: Because the SSGL, that specific model, if you will, is the one he is aware, and the board is aware, that in the prior exam, the silo sheets, the rest of that line, the ones that were made. [00:07:47] Speaker 04: I'm really not following you. [00:07:49] Speaker 04: You have Comtesse saying that one product here, at least, avoids the bleed-through. [00:07:56] Speaker 04: And he talks about that being shown. [00:08:01] Speaker 04: in the comfort zone ad. [00:08:02] Speaker 04: And then you have a letter which says, yes, within this line we did hit, there were products that avoided the bleed through. [00:08:12] Speaker 04: Why isn't that direct corroboration of what he said? [00:08:16] Speaker 05: Because they are separate. [00:08:17] Speaker 05: And I apologize. [00:08:19] Speaker 05: I'm not being clear. [00:08:20] Speaker 05: The other silo sheets, the core silo sheet line has a fabric of nylon that allows bleed through. [00:08:29] Speaker 05: And the nylon product [00:08:31] Speaker 05: is the product that the letters are addressing. [00:08:35] Speaker 05: That's not true. [00:08:36] Speaker 05: He talks about the product line. [00:08:38] Speaker 05: He doesn't talk about one single product. [00:08:41] Speaker 05: He talks about, I think, the attachment in the first one. [00:08:48] Speaker 05: The first letter that has the application makes it clear that it is nylon, not Coolmax, that they're using. [00:08:55] Speaker 05: And thus, [00:08:59] Speaker 05: And he also doesn't talk about the entire silo sheath line, he talks about the silo sheath in particular. [00:09:06] Speaker 05: His first letter with the application talks about a particular silo sheath product and the application talks about nylon. [00:09:15] Speaker 05: The critical part of the SSGL model or specific product or SKU if you will, [00:09:21] Speaker 05: is that it had Coolmax, so that the nylon silo sheets, which are the ones that were sold under the name silo sheets, not SSGL, the nylon silo sheets were the first re-example. [00:09:32] Speaker 05: The distinguishing characteristic about the particular SSGL version of these, the SSGL product, even if they call it part of the line, is that it has Coolmax, which is a thicker fabric, and therefore there cannot be bleed through, and therefore one would take this ad, [00:09:51] Speaker 05: which purportedly is a picture of an SSGL, not the silo sheaths that were in the first case, in the first re-exam, and says that is not susceptible to the problems that were discussed that allow patentability in the first case. [00:10:06] Speaker 04: OK. [00:10:06] Speaker 04: Well, suppose we... Oh, go ahead. [00:10:08] Speaker 04: Please go ahead. [00:10:09] Speaker 04: I was going to move on if you had another question. [00:10:11] Speaker 02: Well, I do have another question. [00:10:12] Speaker 02: And so Mr. Scalise, then, what you're saying is Mr. Scalise is mistaken, charitably speaking, into saying [00:10:19] Speaker 02: that the silo sheath items that he's referring to in his letter, the first of the letters, did not have bleed through. [00:10:29] Speaker 02: You think that's the way one should read this? [00:10:32] Speaker 05: That is definitely. [00:10:33] Speaker 05: He is describing. [00:10:35] Speaker 02: He's just wrong. [00:10:37] Speaker 02: And he's so plainly wrong that it wasn't even worth bringing this to the attention of the PTO as a potential, particularly [00:10:48] Speaker 02: as potential corroboration of Comtesse. [00:10:51] Speaker 05: It is clear that he is talking, yes, he is talking about the original nylon silo sheath, not the Coolmax SSGL, which is in the secondary exam. [00:11:03] Speaker 02: If you had been arguing this case before the board, and you had this in your briefcase and you knew about it, and you were intending to argue that the Comtesse declaration was wholly uncorroborated [00:11:19] Speaker 02: Don't you think you would feel an obligation to say, now, of course, there is this letter from Scalise, but we think Scalise was mistaken, and here's why. [00:11:28] Speaker 05: Your Honor, I may well have a more cautious approach than counsel had in this case, but I don't know that one can say that he omitted a material reference and that he did it with deceptive intent. [00:11:42] Speaker 02: Strong to say that this is uncorroborated if you have something [00:11:47] Speaker 02: in which somebody is saying, whether you believe it or not, it's exactly the contrary of what you're saying is the fact. [00:11:55] Speaker 05: Your Honor, I've been addressing largely materiality. [00:11:58] Speaker 05: The record is far from clear that Counsel Guyon was aware of the letters. [00:12:03] Speaker 02: We're talking about Calvin here in light of the findings that are made by the court. [00:12:08] Speaker 05: Calvin was clearly aware of the letters, right? [00:12:11] Speaker 05: He testified that he was aware of the first. [00:12:14] Speaker 05: The second, I don't think he was actually asked about. [00:12:16] Speaker 05: But remember, these are 1999 letters that are now becoming material or not material. [00:12:26] Speaker 04: So assuming we reject your argument about the letters being corroborative, and we conclude that they're clearly corroborative, let's just assume that as a hypothetical. [00:12:35] Speaker 04: What argument do you have to set aside the district court's conclusion of inequitable conduct with respect to the second re-exam [00:12:47] Speaker 04: and the letters. [00:12:48] Speaker 05: It would parallel the argument we make about the declarations, but it would be even more powerful, Your Honor, because you've got... I mean, this is a litigation in which there are thousands and thousands and thousands of pages that the district court is assuming that Mr. Colvin reads and retains almost like a computer. [00:13:05] Speaker 05: So you've got... You've read the letters. [00:13:06] Speaker 05: You've got letters that are... Unlike the declarations [00:13:10] Speaker 04: where he said he didn't read it, he read the letter. [00:13:12] Speaker 04: So what's the only? [00:13:13] Speaker 05: Well, his testimony about the letters was that he was, that the second letter went straight from Sylla Post to outside council. [00:13:22] Speaker 05: And I don't think the record is at all clear that Mr. Colton definitely ever saw the second letter. [00:13:28] Speaker 05: The first letter was sent to his boss, Mr. Arbogast. [00:13:31] Speaker 05: And I think his testimony was, the equivalent, I'm not quoting, was it must have come through me. [00:13:36] Speaker 05: But it was still a 1999 letter. [00:13:39] Speaker 05: And now we're through the 2004 original allowance. [00:13:43] Speaker 05: We're through the 2006 summary judgment motion. [00:13:46] Speaker 05: We're in the second re-exam. [00:13:48] Speaker 05: And a non-lawyer is sitting back there. [00:13:52] Speaker 05: Is he forgotten about the letters? [00:13:54] Speaker 05: It's not clear. [00:13:55] Speaker 05: He never got to that. [00:13:56] Speaker 05: He wasn't asked. [00:13:57] Speaker 05: But there was. [00:13:58] Speaker 05: He's never asked. [00:13:59] Speaker 05: I don't think the record is clear whether he recalled it. [00:14:02] Speaker 05: I think the testimony, Your Honor, was that he knew he was originally aware [00:14:09] Speaker 05: of the letter to Mr. Arberg as his boss. [00:14:12] Speaker 05: I don't think the record is clear one way or another as to whether he remembered it in sufficient detail to know anything about it in 2011, 12 years later during the secondary exam. [00:14:24] Speaker 03: I want some discussion of the court's finding of inconceivability as to Colvin's knowledge of the 2006 exhibits. [00:14:36] Speaker 03: because I'm going to ask your opposing counsel about it, and I want you to discuss more. [00:14:40] Speaker 05: Your Honor, and those, to get to intent, or to get to any of the TheraSense steps, he has to, he has to put it, the district court has to put it in Mr. Colvin's hands, he has to have Mr. Colvin read it, he has to have Mr. Colvin remember it five years later, realize its material, and then make an attempt. [00:15:00] Speaker 05: The judge says it's inconceivable. [00:15:02] Speaker 05: And the only thing the judge, that the district court found, [00:15:05] Speaker 05: was that the protective order did not preclude counsel giving it to him, although it doesn't compel them to. [00:15:13] Speaker 05: It just doesn't preclude it. [00:15:15] Speaker 05: And that since he was, in effect, the interface with the company, with the lawyers, that he would have wanted to see everything in the litigation. [00:15:22] Speaker 05: And therefore, he would have seen this. [00:15:24] Speaker 05: But they filed all of this under seal in a multi-volume thing that was about that. [00:15:31] Speaker 05: I'm sorry, Your Honor? [00:15:32] Speaker 05: I'm aware of the record. [00:15:33] Speaker 05: Yes. [00:15:34] Speaker 05: And there is no testimony, regardless of whether the court disbelieved both Mr. Coleman, who was only reciting what he had been told the protective order said. [00:15:44] Speaker 05: He was not purporting to recite it because he never read it. [00:15:48] Speaker 05: And the court disbelieves both of his counsel about what the protective order did or did not permit them to do. [00:15:54] Speaker 05: Like the court's decisions in Star Scientific and the other cases, that doesn't lead [00:15:59] Speaker 05: to an inference the other way, or permitting an inference the other way, without more proof, that counsel actually did split this thing up and determine what they could provide to him and what they didn't. [00:16:10] Speaker 05: And as a matter of fact, it is entirely reasonable, I submit, for counsel to be a little trepidatious, or whatever the right adjective would be about doing, approach it with trepidation to do that. [00:16:21] Speaker 05: Because in 2012, a year after these events, when these very 2006- If we believe [00:16:28] Speaker 03: that the district court erred as to his finding of actual knowledge on the part of Mr. Colvin as to that 2006 material. [00:16:40] Speaker 03: But we take the letters as material and he said he knew about them. [00:16:47] Speaker 05: Well, Your Honor, then I have to go back and address those letters. [00:16:50] Speaker 05: And because I understand that the district court found on the basis of the letters and the declarations. [00:16:55] Speaker 04: Or is there enough to sustain the judgment? [00:16:58] Speaker 05: That's my question. [00:17:00] Speaker 05: If the court found that they were, in fact, but for material, and the court found that Mr. Colvin, despite any finding of record, that Mr. Colvin remembered them in such specificity, and that Mr. Colvin, a non-lawyer, understood that they were material, [00:17:23] Speaker 05: and the materiality that the court, it gets pretty subtle here. [00:17:27] Speaker 05: That's enough to sustain the judgment. [00:17:29] Speaker 05: Well, and that he decided with specific intent to deceive. [00:17:34] Speaker 05: That's enough to sustain the judgment. [00:17:36] Speaker 05: Well, if we get all these steps of Therosense are met, Your Honor, yes, it sustains. [00:17:41] Speaker 05: I believe it would. [00:17:43] Speaker 05: But here, it's not. [00:17:45] Speaker 05: I'll start backwards with the ultimate intent to deceive. [00:17:48] Speaker 05: These documents were in their summary judgment motion. [00:17:52] Speaker 05: If he knows all these things... It sounds to me as though you're saying that absent a confession by the party's representative, that you can't show an equitable... No, Your Honor, and I would suggest the courts of Venice decision is the classic case of what kind of evidence you actually need. [00:18:10] Speaker 05: I mean, that's one where the defendant denied receiving it and said, I got the later version of it. [00:18:18] Speaker 05: And in fact, they did find not a confession. [00:18:22] Speaker 05: I acknowledge you're not going to get a confession. [00:18:24] Speaker 05: But in discovery, they did find that the defendant had received the earlier version because he approved it for publication. [00:18:32] Speaker 05: He also denied knowledge of materiality of a reference because he said, well, that reference talks about certain tests. [00:18:38] Speaker 05: And when we did the test, they failed. [00:18:40] Speaker 05: And there was extrinsic evidence that some of the tests had passed. [00:18:44] Speaker 05: So his basis for saying, I didn't get that, or I didn't remember it, or I didn't understand it was baseless. [00:18:52] Speaker 05: It wasn't baseless. [00:18:53] Speaker 05: It was credible. [00:18:54] Speaker 05: It just wasn't permissible. [00:18:57] Speaker 05: It wasn't the single most reasonable inference. [00:18:59] Speaker 05: And it didn't permit an inference of deceptive intent. [00:19:02] Speaker 05: It wasn't enough to assume the opposite once you've discredited his testimony. [00:19:07] Speaker 05: And here, Mr. Colvin repeatedly explained his understanding. [00:19:11] Speaker 05: There's more to it than that. [00:19:12] Speaker 04: just disbelieving his testimony because he also admitted that he was primarily responsible for supervising litigation. [00:19:18] Speaker 05: Well, Your Honor, I compare it to the star scientific decision when you're talking about the people who were responsible for firing counsel. [00:19:25] Speaker 05: They clearly had authority to do it. [00:19:26] Speaker 05: So they were motivated to know what was going on too. [00:19:29] Speaker 05: I mean, he was the interface. [00:19:31] Speaker 05: But he's not a lawyer. [00:19:32] Speaker 05: I mean, they're brief talking about all the litigation. [00:19:36] Speaker 05: This isn't the only case that was going on. [00:19:37] Speaker 05: We are on the other side of a number of cases that have been here before. [00:19:41] Speaker 05: with their brain. [00:19:42] Speaker 05: Mr. Colvin in his part-time side job is basically handling interface with the lawyers. [00:19:49] Speaker 05: But the materiality issue here from his knowledge of materiality, his understanding of materiality in a re-exam is a printed publication. [00:19:59] Speaker 05: And it's pretty nuanced to the lawyers as to how when his lawyer stands up and starts talking about contests, that puts on sale information that contests has said [00:20:09] Speaker 05: or that might corroborate contests that would normally be outside of a re-exam. [00:20:13] Speaker 04: I mean, we're down into... We're well over time, sir. [00:20:16] Speaker 04: I apologize. [00:20:17] Speaker 04: We'll give you three minutes for a rebuttal here. [00:20:25] Speaker 04: Mr. Christaldi? [00:20:27] Speaker 00: Yes, sir. [00:20:28] Speaker 00: May I please support? [00:20:30] Speaker 00: My name is Ron Christaldi. [00:20:32] Speaker 00: I'm an attorney with the law firm of Sheemaker, Lupin, Kendrick, and I have the pleasure of representing the Defending Cross-Sappellant Alps South LLC [00:20:39] Speaker 00: Your Honor, I'm here today as an officer of the court not just to represent my clients but also because I have myself lived these cases for 11 years and feel that the pattern of activity that Ohio Willwood has engaged in during the course of these cases without full rebuke runs the risk of degrading the integrity of both the patent system and... No, we're probably not going to be able to rescue the integrity of the patent system or further degrade it by any single decision in this case. [00:21:07] Speaker 02: So why don't you get to the [00:21:08] Speaker 02: the nitty-gritty here. [00:21:09] Speaker 00: Yes, sir. [00:21:11] Speaker 02: The first question is the one that Judge Wallach raised. [00:21:17] Speaker 02: I'm interested in hearing your response as to why it is that, given the fact that Mr. Colvin does not acknowledge and there's no other direct evidence of his knowledge of the 2006 SSGL exhibits [00:21:35] Speaker 02: why it is that that part of the district court's judgment is not reversible. [00:21:41] Speaker 00: Yes, your honor. [00:21:43] Speaker 00: This is from the record. [00:21:44] Speaker 00: It's Mr. Colvin's testimony. [00:21:46] Speaker 00: It's at JA012375. [00:21:50] Speaker 00: The questions asked to Mr. Colvin, for instance, were you responsible for all intellectual property matters at Ohio Willowood? [00:21:57] Speaker 00: Answer, yes. [00:21:58] Speaker 00: Were you responsible for overseeing patent prosecutions? [00:22:01] Speaker 00: Yes. [00:22:02] Speaker 00: Were you responsible for the Connie of patents? [00:22:04] Speaker 00: That's all the patents, the family of patents that sued Connie being the inventor. [00:22:09] Speaker 00: His response was, I was responsible for overseeing them, yes. [00:22:13] Speaker 00: Question, were you responsible for supervising all intellectual property litigation at Ohio Willowwood? [00:22:18] Speaker 00: The response was, yes. [00:22:20] Speaker 00: Were you responsible for the reexamination proceedings involving Ohio Willowwood and its patents? [00:22:25] Speaker 00: The answer was, I was responsible for overseeing them. [00:22:28] Speaker 00: Mr. Colvin is not a person who, as the briefing indicates, is just an engineer who happened to be answering a question or two. [00:22:36] Speaker 02: No, but he testified that he did not sign the protective order, that the appendix in which this material appeared was sealed in the court proceedings. [00:22:50] Speaker 02: And there was other testimony that the appendix was never broken up so that the protected material is never segregated from the [00:22:58] Speaker 02: material that was not designated for attorney size only. [00:23:02] Speaker 02: Testimony, both of his testimony and that of Mr. Speed, I think it was, was that he never saw it. [00:23:08] Speaker 03: The standard is actual knowledge, and yet the trial court uses a standard of inconceivability. [00:23:16] Speaker 03: Yes, sir, Your Honor. [00:23:17] Speaker 03: Clearly the trial court's irritated. [00:23:19] Speaker 00: Yes, Your Honor. [00:23:21] Speaker 00: I think one very important point is the two Scalise letters [00:23:24] Speaker 00: were items that were produced by Ohio Willwood. [00:23:27] Speaker 02: We're not talking about the Scalise letters right now. [00:23:29] Speaker 02: We're talking about the 2006 SSGL exhibits, right? [00:23:33] Speaker 02: The Scalise letters weren't at least exclusively in the summary judgment attachments. [00:23:40] Speaker 02: These declarations were in the summary judgment attachments, which were sealed. [00:23:46] Speaker 02: Now how can we get from the evidence we have to support the district court's conclusion that [00:23:54] Speaker 02: Mr. Colvin has to be disbelieved and it said we have to substitute a finding that there was knowledge on Mr. Colvin's part of those exhibits. [00:24:04] Speaker 00: Yes, Your Honors. [00:24:05] Speaker 00: I think the district court inferred that from all of the circumstantial evidence of the extensive involvement Mr. Colvin had, not only in this litigation and other litigations. [00:24:16] Speaker 00: For instance, one of the declarants was a prostitutes named Mr. McElhaney, Jim McElhaney. [00:24:22] Speaker 00: There was an inventorship hearing in the 688 case that was, I believe, a four or five day full evidentiary hearing. [00:24:29] Speaker 00: Mr. Colvin sat through that entire hearing. [00:24:31] Speaker 00: Mr. Colvin was extremely involved in all aspects of this litigation. [00:24:35] Speaker 00: This was the most important patent. [00:24:37] Speaker 00: It is by far the single largest product for Ohio Willowwood. [00:24:41] Speaker 00: The testimony is that during the pendency of this case, they made over $200 million selling this product. [00:24:46] Speaker 04: Was there any testimony that he reviewed other pleadings in the testimony litigation? [00:24:52] Speaker 00: I believe there was, Your Honor. [00:24:54] Speaker 00: So for instance, he testified, and I can, the citation in the record is to JA12448. [00:25:00] Speaker 00: I said it's not that good on this little print, I'm sorry. [00:25:06] Speaker 00: 12448-55, where Mr. Coleman testified that he reviewed the Scalise letters, and he testified that as part of the first year examination, he reviewed them, and they considered whether they should... Yeah, but he didn't testify he reviewed them as part of the litigation. [00:25:23] Speaker 03: And the point is that where he does say he reviewed it, the court has a basis for its determination. [00:25:31] Speaker 03: But he says he did not review the 2006 exhibits, and yet the court simply says, well, that's inconceivable. [00:25:40] Speaker 00: Again, I believe that given the totality of the evidence of his pervasive oversight and participation, he was the sole person [00:25:48] Speaker 04: at Ohio Willwood who has been... What I was asking you, is there any testimony that he routinely reviewed pleadings in the district court litigation? [00:25:58] Speaker 00: I don't believe that there is testimony that he routinely reviewed pleadings, Your Honor. [00:26:05] Speaker 00: I believe that for Mr. Guyan to be going in arguing a lack of evidence and the fact that he would have not asked his own client, is there any other evidence out there? [00:26:16] Speaker 00: And the only person who would have asked the client is Mr. Colvin, that question. [00:26:20] Speaker 00: It is inconceivable that a lawyer would go before a tribunal and make the assertion that no evidence exists without simply asking the question that a client, is there any other evidence? [00:26:29] Speaker 00: Are you aware of this? [00:26:30] Speaker 00: Is this correct? [00:26:31] Speaker 00: I'm going to go represent to the court. [00:26:33] Speaker 00: And make no mistake that Mr. Agyan's representations were very strong. [00:26:39] Speaker 00: This is a quote that appears at JA009053, quote, and this is before the Board of Patent Appeals. [00:26:47] Speaker 00: There is not a single piece of documentary evidence that shows a single socket gel liner on Coolmax. [00:26:53] Speaker 00: He continues to argue, quote, that's literally all they have in referring to the ad and the argument. [00:27:01] Speaker 00: It was inconceivable, I believe, for the district court that a lawyer would go before a tribunal and make such a strong argument about a void, a lack of evidence, without simply asking his client, is there anything else out there, without asking his co-counsel who's been litigating the case for [00:27:16] Speaker 00: eight or nine years, I'm going to go represent to the tribunal that there's nothing out there. [00:27:21] Speaker 00: And I think that the court found that Mr. Colvin's pervasive involvement in this litigation, Mr. Colvin knew and the record testified that he had a favorable impression of Mr. Gailey and Mr. McElhaney. [00:27:33] Speaker 00: He knew them. [00:27:34] Speaker 00: He knew them personally. [00:27:36] Speaker 04: Let me move you to the first re-exam because that's part of your cross-appeal argument here. [00:27:42] Speaker 04: Are you arguing that there was a misrepresentation in the course of the first re-exam, or just a lack of candor for failing to disclose things? [00:27:53] Speaker 00: It was a very affirmative misrepresentation, Your Honor. [00:27:55] Speaker 04: What was the misrepresentation? [00:27:57] Speaker 00: It starts with the premise that the issue in these cases, despite argument of counsel about the specific products... What specific statement was a misrepresentation? [00:28:05] Speaker 00: Sure, Your Honor. [00:28:06] Speaker 00: The specific statement, when they went into the interview, and the interview was attended by Mr. Guyon and Mr. Stanley, who were counsel for Ohio Wheelwood, Mr. Colvin, the inventor, Mr. Kania, and three examiners, and they specifically argued, and the summary of argument in this case, it chronicles that, that there was no prior art with gel and only one side of the fabric. [00:28:26] Speaker 00: This was an argument that they made pervasively throughout these cases, and they made... Where do we find this statement? [00:28:31] Speaker 00: Yes, sir. [00:28:32] Speaker 00: Could you bear with me just one second, Your Honor? [00:28:48] Speaker 00: Your Honor, I apologize. [00:28:52] Speaker 00: I don't have that specific citation. [00:28:53] Speaker 00: But what I will tell the court is that it is in the summary of argument filed by Mr. Guyon immediately preceding the July 17, 2007 interview. [00:29:01] Speaker 00: I apologize that I don't have the reference. [00:29:04] Speaker 02: But the reference to prior art there, where we aren't talking about the question of corroboration, which was the issue in the second reexamination, is a reference to prior art as that term is used in the context of reexaminations, which would be either [00:29:17] Speaker 02: prior patents or printed publications, right? [00:29:20] Speaker 02: So something like the Scalise letters wouldn't be prior. [00:29:27] Speaker 00: Prior products wouldn't be prior. [00:29:31] Speaker 02: I'm sorry. [00:29:32] Speaker 02: Go ahead. [00:29:32] Speaker 00: I believe that's a mischaracterization in the briefing of the opposing counsel. [00:29:36] Speaker 00: It may have been a misunderstanding of Judge Frost. [00:29:39] Speaker 00: In a reexamination proceeding, in order to determine whether there's a substantial new question of patentability, [00:29:44] Speaker 00: And in order to determine initial rejections, you can only rely on publications of prior art. [00:29:50] Speaker 00: What the rule says, and I believe it's 1555, 37 CFR 1555. [00:29:55] Speaker 00: I'll tell you in just a minute. [00:30:00] Speaker 00: But to finish my argumentation, Your Honor, what the rule says is that once a claim is rejected or amended, then 112 happens. [00:30:08] Speaker 00: And it's open to reexamination. [00:30:12] Speaker 00: in the normal process you would have in a typical examination. [00:30:16] Speaker 00: So if you were to amend a claim in a re-examination, it makes sense that the amendments, the new language is not based on just what the prior art publications and patents are. [00:30:26] Speaker 00: It goes into full prior art. [00:30:28] Speaker 00: In this case though, in the first re-examination, the issue before the tribunal [00:30:33] Speaker 00: was whether or not there was a product with gel on both sides of it. [00:30:36] Speaker 00: They went in and affirmatively said, distinguish the prior art. [00:30:39] Speaker 04: Well, no, I think you're misstating what was involved in the first re-exam. [00:30:44] Speaker 04: I thought the first re-exam was based solely on the silo sheet. [00:30:49] Speaker 00: The issue with respect to the silo sheet was whether prior art had gel on one side of the fabric. [00:30:54] Speaker 04: No, but I'm confused. [00:30:56] Speaker 04: And you're going to have to show me. [00:30:57] Speaker 04: that it was broader than the silo sheath because that was my understanding is that that was the product, the physical silo sheath. [00:31:06] Speaker 00: Sure, Your Honor. [00:31:08] Speaker 00: The product before the court was the silo sheath, but I don't know that the patent office is not limited to a specific product. [00:31:14] Speaker 00: The issue that they went and argued is we overcome prior art because we only have gel on one side of our fabric, knowing when they went in and they made that argument, Mr. Colvin. [00:31:27] Speaker 00: Yes, Your Honor. [00:31:28] Speaker 00: I want to see where they said it and exactly what they said. [00:31:31] Speaker 00: Yes, sir, your honor. [00:31:35] Speaker 00: Of course, there's no transcript of the interview. [00:31:37] Speaker 00: There's a summary that's written afterward. [00:31:39] Speaker 00: And it was submitted by Mr. Guyon. [00:31:41] Speaker 00: And in Mr. Guyon's summary that was written after the July 17, 2007 interview, Mr. Guyon specifically said that all prior testimony at trial. [00:31:51] Speaker 04: But you have to come to this argument. [00:31:54] Speaker 04: If you're going to argue something, you have to show us where it says it. [00:31:58] Speaker 04: We're not going to necessarily rely on what counsel says about it. [00:32:02] Speaker 04: You have to be able to show us exactly what was said, because counsel's characterizations of things are not always accurate. [00:32:10] Speaker 04: And you should come to the argument prepared to support what you're arguing. [00:32:15] Speaker 00: And if you don't know where it is, you don't know where it is. [00:32:18] Speaker 00: That's the way it is. [00:32:19] Speaker 00: I apologize, Your Honor. [00:32:20] Speaker 00: I don't have that one specific citation handy, but I [00:32:24] Speaker 00: I understand the issue in that particular reexamination, again, was whether they overcome the prior art based on the fact that their product, their patent, has gel on only one side of the fabric. [00:32:37] Speaker 00: And they went into that proceeding. [00:32:39] Speaker 00: Mr. Colvin testified at trial that they went into that proceeding and didn't disclose it. [00:32:43] Speaker 00: Mr. Guyant claims, I didn't know about that stuff. [00:32:46] Speaker 00: Mr. Stanley was in the room. [00:32:48] Speaker 00: Mr. Stanley was trial counsel. [00:32:51] Speaker 00: Mr. Stanley [00:32:52] Speaker 00: did see what was in the summary judgment motion. [00:32:54] Speaker 00: He was the lead trial counsel on the case. [00:32:56] Speaker 00: Mr. Stanley knew of the Scalise letters. [00:32:59] Speaker 00: He sat on there. [00:33:01] Speaker 00: Excuse me, your honor. [00:33:02] Speaker 00: My paralegal is much better than I am. [00:33:05] Speaker 00: And he handed me the citation, your honor. [00:33:06] Speaker 00: It's a JA010863-75. [00:33:11] Speaker 00: It is exhibit D. I'm sorry. [00:33:13] Speaker 02: What was the citation again? [00:33:15] Speaker 00: Yes, sir. [00:33:15] Speaker 00: It's JA... DX73. [00:33:17] Speaker 00: I'm sorry, sir. [00:33:19] Speaker 00: Was it DX73? [00:33:21] Speaker 00: It is D73 exhibit, and the citation, Your Honor, is JA010863. [00:33:29] Speaker 00: It is a part of the 688 first re-examination file record. [00:33:33] Speaker 00: It's a record in the case. [00:33:35] Speaker 00: And Judge Dyke, I apologize for not having that reference handy earlier. [00:33:42] Speaker 00: And so particularly in this case, the issue in the first re-examination was them representing [00:33:49] Speaker 00: to the patent office that there was no prior art with gel on only one side of the fabric when Mr. Stanley was sitting in the room. [00:33:58] Speaker 00: And his testimony at trial was that he was just there as an observer. [00:34:02] Speaker 00: Respectfully, Your Honors, when you go into a meeting and you have that knowledge and you're listening to your partner at your own law firm make an argument, you have a duty to disclose that information. [00:34:11] Speaker 00: He knew that... What's the citation? [00:34:14] Speaker 00: Which volume of the appendix? [00:34:16] Speaker 00: Yes, sir. [00:34:16] Speaker 00: It's exhibit D73, and the specific page number is 010863. [00:34:23] Speaker 00: 0108. [00:34:24] Speaker 00: 0108. [00:34:24] Speaker 00: 0108. [00:34:44] Speaker 01: Correct, 6-3. [00:34:45] Speaker 01: 6-3, okay, I have it here. [00:34:49] Speaker 00: And again, this is a summary... Where on this page? [00:34:56] Speaker 00: I don't have the page in front of me, Your Honor, but I believe that to be the summary of... It is. [00:35:01] Speaker 03: I'm sorry? [00:35:02] Speaker 03: It is. [00:35:02] Speaker 03: It's about at 0865, as far as I can tell. [00:35:06] Speaker 04: Thank you, Your Honor. [00:35:12] Speaker 04: It talks about the [00:35:14] Speaker 04: being unpatentable over the silo past silo sheet products is disclosed in the catalog and business news pages. [00:35:25] Speaker 04: So it's talking about a specific product disclosed in certain particular references. [00:35:31] Speaker 00: And they failed to represent what they said, Your Honor, was that there was no parot with gel on both sides of the fabric. [00:35:39] Speaker 04: That's not on this page. [00:35:40] Speaker 04: I don't see that. [00:35:45] Speaker 00: Your Honor, it is pervasive. [00:35:49] Speaker 00: That was the issue in this entire case and in both rigs and items. [00:35:54] Speaker 00: The issue was the rejection was based on the fact that the jail had the bleed-through problem. [00:36:00] Speaker 00: In this Court's prior opinion... Okay, I think we're out of time. [00:36:04] Speaker 04: Thank you. [00:36:05] Speaker 04: Thank you, Your Honor. [00:36:17] Speaker 05: you are the reference in the that page joint appendix counsels just talking about clearly talks about a nylon sheet when it's talking about the silo sheet and it's clear of record here if there's one thing it's good record age that is uh... the one you cited your honor one oh eight six five he's talking about now that he says six three i think i think judge walla directed into the two two pages later in in the specific point where i think the reference was to actual silo sheet products [00:36:46] Speaker 05: distributed during that time and they talked about the presence of the nylon sheath and that relates also to my point about the difference between the SSGL and the rest of the silo sheath line. [00:36:57] Speaker 05: The rest of the silo sheath line has the nylon fabric which permits the bleed through. [00:37:02] Speaker 05: The whole point of the contest testimony plugging the gap or explaining what one skilled in the art would get out of the comfort zone at is that it had Coolmax, it had a different fabric. [00:37:13] Speaker 05: So in order for anything to be corroborative or material, much less but for material in the secondary exam, it cannot deal generally with all silo sheets, much less the nylon silo sheets. [00:37:27] Speaker 05: It has to be corroborative on the ones that he was talking about that the examiner found created the issue. [00:37:33] Speaker 05: And those are just the SSGLs, because the SSGLs had the Coolmax. [00:37:39] Speaker 05: And the Coolmax does not. [00:37:42] Speaker 05: It is much more hard for bleed through. [00:37:45] Speaker 05: So it's an on sale bar matter. [00:37:48] Speaker 05: Once the silo sheath that the SSGL shows up, it's a different issue. [00:37:53] Speaker 02: There's a record. [00:37:54] Speaker 02: Well, go ahead. [00:37:54] Speaker 05: Well, I was going to point out that in the letters themselves, in the first letter, he makes it clear that he's talking about a silo sheath product sold as early as 1992. [00:38:04] Speaker 05: And nobody in any of these declarations suggests that the SSGL was on sale as early as 1992. [00:38:10] Speaker 05: in the second letter where he attaches the invoice. [00:38:15] Speaker 05: And I need to go to our reply brief on page 23. [00:38:17] Speaker 02: This is the November 23, 1993 invoice. [00:38:19] Speaker 05: The November one, the one that went to Traynor. [00:38:21] Speaker 02: 12155. [00:38:23] Speaker 05: Yes. [00:38:23] Speaker 05: And 1215 is clearly the nylon silo sheet. [00:38:29] Speaker 05: Mr. Contest, this is on page 23 of our brief, stated in his deposition that the SSGL was sold under items number 1272, [00:38:38] Speaker 05: 1275 and 1276, and that's JA7049. [00:38:41] Speaker 05: That's the citation for that. [00:38:44] Speaker 02: The record has a reference to the product that was sent, the actual physical product that was sent along, I guess, with the first Scalise letter and identified as 1215. [00:38:58] Speaker 02: Is that right? [00:38:59] Speaker 05: It's the second letter that has the product. [00:39:02] Speaker 05: And that was the one that Mr. Trainor submitted in the earlier applications that kept the photo. [00:39:08] Speaker 02: Do we know whether that is the SSGL or the silo sheath, pre-SSGL? [00:39:14] Speaker 05: Your Honor, his testimony is that 1215 means the nylon silo sheath. [00:39:19] Speaker 05: Well, but we have the physical. [00:39:20] Speaker 05: Well, we don't have it. [00:39:21] Speaker 02: It's in the patent. [00:39:22] Speaker 02: Somebody does. [00:39:22] Speaker 05: It's in the patent. [00:39:23] Speaker 05: It is identified in the record on those sites I was quoting as the same number, 1215, with an extra 5. [00:39:31] Speaker 05: which he says just tells what year it was made. [00:39:34] Speaker 05: But it's a 1215. [00:39:35] Speaker 05: That makes it not an SSGL. [00:39:39] Speaker 05: That makes it a fabric silo sheet that was the subject of the first re-exam. [00:39:43] Speaker 05: That's why I was trying to say earlier, and I apologize that I did not have the letters specifically in front of me, but the letters talk about nylon, the nylon liner, [00:39:57] Speaker 05: That makes them not an SSGL because the SSGL clearly has the COOLMAX. [00:40:02] Speaker 04: Okay, Mr. Lutgen, I think we're out of time. [00:40:04] Speaker 04: Thank you, Judge. [00:40:05] Speaker 04: Thanks both counsels. [00:40:06] Speaker 04: The case is submitted.