[00:00:05] Speaker 03:
Yeah.

[00:00:45] Speaker 02:
Mr. Waxman?

[00:00:49] Speaker 02:
Reserving five.

[00:00:50] Speaker 00:
Please.

[00:00:56] Speaker 00:
May it please the court.

[00:00:58] Speaker 00:
The district court erred on several grounds on each of the three issues it decided, invalidity, inequitable conduct, and Walker process.

[00:01:08] Speaker 00:
But the error common to all of them

[00:01:11] Speaker 00:
is that they all rest on the uncorroborated testimony of TransWeb's president, a consummately interested witness.

[00:01:19] Speaker 02:
Well, the district court had discussed a number, I think at least seven pieces of corroborating evidence.

[00:01:27] Speaker 00:
And as our brief explains, none of those pieces of corroborating evidence actually corroborates the material fact that is

[00:01:39] Speaker 00:
needed to support a finding of invalidity.

[00:01:41] Speaker 00:
That is, they show that TransWeb was at the Expo.

[00:01:45] Speaker 00:
They show that TransWeb, a new company, would be displaying and was displaying T-flow.

[00:01:52] Speaker 02:
So they tend to support the witnesses' testimony.

[00:01:57] Speaker 00:
If I say, Your Honor, that let's say in the era of anticipation of the Chevy Volt and its revolutionary

[00:02:09] Speaker 00:
battery, and GM announces there's going to be a car show in which it's going to be showing GM cars.

[00:02:17] Speaker 00:
And there is no mention whatsoever of the fact that the public is now going to get to see the much anticipated technological advance.

[00:02:27] Speaker 00:
That is not corroboration of the material fact that is necessary to a finding of invalidity.

[00:02:35] Speaker 00:
And this court, over and over and over again,

[00:02:38] Speaker 00:
has made clear that what needs to be corroborated is that material fact.

[00:02:44] Speaker 00:
That was this court's holding in Juicy Whip, and Union Carbide, and Garner, and the Allergan cases.

[00:02:51] Speaker 00:
In fact, and indeed, the Finnegan case, which is perhaps the court's leading corroboration case, the witness testified.

[00:03:02] Speaker 00:
It wasn't even a party.

[00:03:03] Speaker 00:
The witness testified, oh, no, no, no.

[00:03:06] Speaker 00:
I knew about all the elements of this invention.

[00:03:10] Speaker 00:
And the corroboration, the independent corroborating fact, was an article that he had published that disclosed all but one of the elements of that invention.

[00:03:21] Speaker 00:
And this court held, look, the corroboration requirement we know from the barbed wire patent case, the Supreme Court has told us, is very important.

[00:03:30] Speaker 00:
And what has to be corroborated,

[00:03:33] Speaker 00:
specifically corroborated by clear and convincing evidence is the material fact on which the invalidity claim turns.

[00:03:42] Speaker 00:
And here, that was the display of oil-resistant plasma fluorinated material.

[00:03:49] Speaker 00:
And not a single one of those documents corroborates that.

[00:03:52] Speaker 00:
And in fact, there is very substantial evidence in the record of this case that that was not the case.

[00:04:01] Speaker 00:
one of these cases where there are no documents that speak one way or the other to whether or not there was a public use of this plasma fluorinated material.

[00:04:13] Speaker 00:
There are many pieces of evidence in the record that strongly indicate that it was not.

[00:04:18] Speaker 00:
And I can go through them if the court wishes.

[00:04:21] Speaker 00:
But the first is, of course, the multiple confidentiality requests

[00:04:30] Speaker 00:
and agreements that TransWeb insisted that customers or potential customers sign in the months after the expo.

[00:04:39] Speaker 00:
I mean, the very first shipment after the expo, they sent to MSA, a respirator manufacturer in the United States, and said, we are providing these samples under our confidentiality agreement, and you are requested not to test them, not to discuss their properties,

[00:04:58] Speaker 00:
with other suppliers and to keep them confidential under our agreement.

[00:05:03] Speaker 00:
That's inconsistent with a few weeks earlier just handing these things out to anybody.

[00:05:08] Speaker 00:
Similarly, there is a brochure in the record in this case, and I really commend the court's attention to this.

[00:05:17] Speaker 00:
We have the date of that brochure, by the way.

[00:05:20] Speaker 03:
I didn't see that it was dated in the record.

[00:05:23] Speaker 00:
It is not dated.

[00:05:24] Speaker 00:
The testimony was that it was provided to Mr. Lagarde of Racal in Canada in 1997.

[00:05:32] Speaker 00:
His testimony was he thought it occurred when he met Mr. Ogali on June 2nd, but it could have been some time else in 1997.

[00:05:41] Speaker 00:
But this document is

[00:05:44] Speaker 00:
a damning indictment of this testimony, not corroboration, if you will examine page 5173, which is the third page of the brochure.

[00:05:55] Speaker 00:
And this bears review.

[00:06:02] Speaker 00:
While the court is looking for 5173, let me also say that Mr. Ogali didn't disclose this assertive public use

[00:06:11] Speaker 00:
in any of his successive patent applications, including the one he filed in the year 2000 for precisely the invention that 3M got here.

[00:06:25] Speaker 00:
That is, a hydrocharged plasma fluorinated electrode.

[00:06:29] Speaker 00:
He never disclosed that there was a public use at the Expo in 1997 in his 2000 application.

[00:06:36] Speaker 00:
And he also never disclosed that

[00:06:39] Speaker 00:
Either in his complaint alleging invalidity, either of the two amendments, any of his five invalidity contentions in this litigation, never mentioned it during fact discovery, this contention arose only at 16 months after the complaint was filed

[00:06:58] Speaker 00:
in response to our motion for summary judgment on invalidity.

[00:07:02] Speaker 00:
And that ought to give the court, should have given the district court, and certainly should give this court under the clear and convincing evidence standard that governs invalidity claims, a very great pause.

[00:07:15] Speaker 00:
But if you have the exhibit here on page 5173, this is the brochure of a brand new company talking about its products.

[00:07:24] Speaker 00:
And on the left-hand side,

[00:07:26] Speaker 00:
they discuss tea melt.

[00:07:28] Speaker 00:
And they say tea melt is fabricated from polyester, polypropylene, nylon, polyethylene, and PBT.

[00:07:38] Speaker 00:
And then it says it can impart the fabric with electrostatic, antimicrobial, antistatic, fragrance, odor, or other useful properties to enhance performance.

[00:07:51] Speaker 00:
Nothing about oil resistance or anything like that until you get

[00:07:56] Speaker 00:
to the next page, which is TransWeb Today and Tomorrow.

[00:08:01] Speaker 00:
And there TransWeb says, and I'm reading sort of in the middle of the page, we are to stay on the leading edge.

[00:08:09] Speaker 00:
We are committed to research and development of fiber media, filter media, that will be more efficacious in humid and oily conditions.

[00:08:20] Speaker 00:
That is, there is plenty of contemporaneous documentary evidence in this case.

[00:08:26] Speaker 00:
But all of it tends to show not that there was this sort of open display in distribution of this plasma fluorinated material that had this remarkable quality.

[00:08:40] Speaker 03:
The significance of this document, it seems to me, depends entirely on when it was printed.

[00:08:44] Speaker 00:
And we know, well, I think we can know with some degree of certainty when it was printed, right?

[00:08:51] Speaker 00:
Because there's no question that

[00:08:55] Speaker 00:
TransWeb came into business in late 1996.

[00:09:00] Speaker 00:
In the April 1997 article that the district judge cited as one of the corroborating pieces of evidence from nonwovens industry,

[00:09:15] Speaker 00:
It says that this is a recently formed company and it has tea flow and tea melt.

[00:09:21] Speaker 00:
Nothing about oil resistance.

[00:09:23] Speaker 00:
But then in September of 1997, TransWeb makes its first sale of tea melt tea.

[00:09:30] Speaker 03:
Setting aside the offer for sale on July 1st to Gerson.

[00:09:35] Speaker 03:
I know you quarrel with whether that's an offer for sale.

[00:09:39] Speaker 03:
It seems to me that the significance of

[00:09:44] Speaker 03:
The earlier events in light of this brochure comes into play here because back in 96, December of 96 and January of 97, it's pretty clear that they already had this TMLP because they were getting it tested.

[00:10:03] Speaker 03:
That's the document to MSA at 6869.

[00:10:09] Speaker 03:
That looks like they're talking about the oily

[00:10:12] Speaker 03:
i.e.

[00:10:12] Speaker 03:
plasmaflorinated media.

[00:10:14] Speaker 03:
Oh, I'll accept that for purposes of your question.

[00:10:18] Speaker 03:
And they sought a patent on it on the day that the expo was going on, right?

[00:10:24] Speaker 00:
They filed their patent application on plasmaflorinated.

[00:10:27] Speaker 03:
So they already had it.

[00:10:29] Speaker 03:
The question is, was it?

[00:10:31] Speaker 03:
So that seems to me to be significant support for the proposition that they

[00:10:38] Speaker 03:
may well have exhibited it because we know they had it.

[00:10:40] Speaker 03:
It would be a different matter if we thought there's no evidence that they even had it.

[00:10:44] Speaker 00:
Judge Bray said the test here is not whether the, I think that the 1996 document does not demonstrate that they had it and the fact that they filed a patent application for it, a confidential patent application in the middle of the expo,

[00:10:59] Speaker 00:
doesn't bear one way or the other on it.

[00:11:02] Speaker 00:
Surely they would have filed it before the Expo.

[00:11:06] Speaker 03:
Why does the 96 document not support the view that they had at least something that performed well in an oily environment as of that time?

[00:11:19] Speaker 00:
It may show that, but the salient fact here is it was not a public use.

[00:11:25] Speaker 00:
We know from their subsequent

[00:11:27] Speaker 00:
provision of the T-MELT-P samples to MSA in July of 1997 that there was a reference to an existing confidentiality agreement.

[00:11:38] Speaker 00:
So it may well have been provided on it.

[00:11:40] Speaker 00:
But let me just say that, first of all, the question is whether this actually corroborates the fact that it was there when there is every indication it wasn't.

[00:11:50] Speaker 00:
And even if it satisfies the corroboration requirement,

[00:11:54] Speaker 00:
But the very fact that we're having this discussion based on a full trial record demonstrates how far this comes from clear and convincing evidence of an invalidating prior public use and how unbelievably far we are from inequitable conduct, the more we're talking about the conduct.

[00:12:15] Speaker 02:
Just so you're aware, you're well under your time.

[00:12:18] Speaker 01:
And I don't mean to run you out of your rebuttal time, but I'd like to turn you to another issue before you

[00:12:23] Speaker 01:
Go away.

[00:12:25] Speaker 00:
I'm fully attentive to your issue.

[00:12:28] Speaker 00:
If I lose my rebuttal time, so be it.

[00:12:29] Speaker 00:
I just want to finish my thought here, which is we are not only far from clear and convincing evidence of an invalidating prior public use, and of course, the judge didn't even address the other elements of obviousness, but how incredibly far we are from finding that Mr. Hanson and Dr. Jones, who didn't have any of these documents, who didn't have O'Gally's testimony,

[00:12:53] Speaker 00:
were from an inequitable- Can I ask you about the antitrust damages?

[00:12:59] Speaker 01:
This is a difficult area of the law, I think, partly because there are very few cases on this.

[00:13:05] Speaker 01:
So I looked at the cases you've all cited and did my best, but I understand your contention is that attorney's fees can't be part of the trouble damages here for the Walker antitrust claim.

[00:13:20] Speaker 01:
What's your best case on that?

[00:13:22] Speaker 01:
Is it the Comcast case?

[00:13:24] Speaker 00:
Yes.

[00:13:24] Speaker 01:
And where in Comcast do you think it really, it says that?

[00:13:29] Speaker 00:
Well, I think Comcast wasn't a Walker process case, but I think the same principles apply.

[00:13:35] Speaker 00:
And if Comcast means anything, it means that the damages that are collectible have to be tied directly to what constitutes antitrust injury.

[00:13:45] Speaker 00:
I don't have the page number, but Comcast says, quote, plaintiff's damages case must be consistent with

[00:13:53] Speaker 00:
the alleged anti-competitive effect of the antitrust violation.

[00:13:57] Speaker 00:
And what do you define as the injury here?

[00:14:03] Speaker 00:
Well, the injury, they have not claimed that the attorney's fees that they expended in defense of the infringement case or in support of their invalidity case themselves are antitrust injury or constitute antitrust injury.

[00:14:19] Speaker 00:
They haven't shown or even contended

[00:14:22] Speaker 00:
that they had to go out of business, or they had to cut their production lines, or that they did put on evidence that they lost one sale.

[00:14:29] Speaker 01:
Well, didn't they have to sell at least part of their business to another company to be able to defend the suit?

[00:14:36] Speaker 00:
That was not a part of their evidence in this case.

[00:14:39] Speaker 00:
And I believe, you know, we'll hear from counsel, but they did not indicate at any time that there would be antitrust injury.

[00:14:48] Speaker 01:
The issue for me is, I think Comcast doesn't speak directly to it all.

[00:14:53] Speaker 01:
It certainly supports your case.

[00:14:54] Speaker 01:
There's at least, I found a case and it's cited in a brief, I'm pretty sure, from the Sixth Circuit that pretty clearly allows attorney fees to be included as part of an antitrust damages award.

[00:15:07] Speaker 01:
Do you think that case is just not applicable here because they've claimed it and they haven't shown it, or do you think it's wrong?

[00:15:13] Speaker 00:
I think it's not clear whether that case involved a pure Walker process.

[00:15:17] Speaker 00:
We're talking about the Kearney case.

[00:15:18] Speaker 00:
Kearney case.

[00:15:19] Speaker 00:
It's not clear whether that case involved a pure Walker process violation or Walker process plus sham litigation.

[00:15:26] Speaker 00:
But let's assume it's just a Walker process case.

[00:15:29] Speaker 00:
That's a 1977 case.

[00:15:31] Speaker 00:
We think it was wrongly decided.

[00:15:32] Speaker 00:
And the Third Circuit, which applies the relevant case law, they cite the In re Rossi case.

[00:15:39] Speaker 00:
That case, I think, pretty strongly supports us.

[00:15:42] Speaker 00:
it made clear that the damages had to flow from the alleged injury to competition, not to the competitor.

[00:15:50] Speaker 00:
And the language that they like just shows that you don't have to prove damages with exactitude.

[00:15:56] Speaker 00:
You have to show about what they are.

[00:15:58] Speaker 00:
But on your question about the main problem with Walker process, other than the fact that there is no fraudulent conduct proven or deceitful intent under inequitable conduct, is

[00:16:12] Speaker 00:
It is their obligation to prove the relevant market.

[00:16:15] Speaker 00:
And they absolutely did not prove either a relevant product market or a geographic market.

[00:16:21] Speaker 00:
As to the former, their expert simply said, the relevant market is this material.

[00:16:27] Speaker 00:
Although he conceded that in the downstream market, respirator manufacturers who are looking for oil-proof respirators readily substitute other kinds of fabrics.

[00:16:39] Speaker 00:
That's your argument, Mr. Mark.

[00:16:40] Speaker 03:
If I could just ask one quick question.

[00:16:43] Speaker 03:
The assertion on the other side was that you didn't have an antitrust expert.

[00:16:48] Speaker 03:
Is that right?

[00:16:49] Speaker 03:
It is correct.

[00:16:50] Speaker 00:
It's not our burden, and their expert didn't establish the market.

[00:16:53] Speaker 00:
Thank you.

[00:17:00] Speaker 04:
Good morning, Your Honor.

[00:17:01] Speaker 04:
This is Michael Williams on behalf of TransWeb.

[00:17:03] Speaker 02:
You can have an extra minute if you need it, Mr. McWilliams.

[00:17:05] Speaker 04:
Thank you, Your Honor.

[00:17:07] Speaker 04:
3M's arguments continue to ignore probably the most salient fact, which is a jury sitting through 11 days of testimony, looking each witness in the eye, seeing all of the evidence, hearing all of the same arguments they're making now, unanimously concluded that 3M committed a deliberate and willful fraud on the patent office, and it used these fraudulently obtained patents in an attempt to monopolize the market.

[00:17:31] Speaker 03:
Let's go to corroboration.

[00:17:33] Speaker 03:
Yes, sir.

[00:17:34] Speaker 03:
Now, I guess corroboration doesn't

[00:17:36] Speaker 03:
quite dispose of the whole case, because I suppose that the invalidity questions could still be, the judgment could still be upheld on the prior sale to the Gerson sale on July 1 offer for sale, right?

[00:17:52] Speaker 03:
But that wouldn't affect the inequitable conduct or walker process part of the case.

[00:17:57] Speaker 03:
You couldn't, in other words, rescue the inequitable conduct or walker process part of the judgment.

[00:18:03] Speaker 03:
by use of the Gerson sale since presumably Mr. Hanson and Mr. Jones had no reason to know of the Gerson sale.

[00:18:11] Speaker 03:
The only thing they are chargeable with is the expo, right?

[00:18:14] Speaker 04:
Well, it's not just the expo.

[00:18:16] Speaker 04:
And this is something that I think 3M distorts in their papers and their argument.

[00:18:19] Speaker 04:
The corroboration issue is extremely narrow in this case.

[00:18:23] Speaker 04:
As Your Honor noted on Mr. Waxman's argument, there is no dispute that he had the invention, TMLT.

[00:18:29] Speaker 04:
He filed a patent application.

[00:18:31] Speaker 04:
There are documents showing he's manufacturing rolls of this in February and March.

[00:18:36] Speaker 04:
There's also no dispute he was handing out samples to customers.

[00:18:42] Speaker 03:
No evidence of that at the expo, right?

[00:18:46] Speaker 03:
Well, the expo is part of it.

[00:18:48] Speaker 03:
There's no specific evidence that he handed out samples of the tea melt pea.

[00:18:55] Speaker 03:
Well, I disagree, Your Honor, and we think PTX 1338 is the most telling evidence of that.

[00:19:01] Speaker 03:
But there's no clear tying of the PTX 1338 to the Expo.

[00:19:06] Speaker 04:
But Your Honor, the standard is to look at the totality of the circumstances here.

[00:19:10] Speaker 04:
And it's not simply whether he was handing it out at the Expo.

[00:19:13] Speaker 04:
The issue is, was there a public use or offer for sale before the critical date?

[00:19:19] Speaker 04:
So the question becomes, and 3M misdates the record in a number of cases.

[00:19:23] Speaker 04:
They say there are no documents showing distribution of samples before the critical date that specifically mention T-MELT-P.

[00:19:30] Speaker 04:
Well, that's clearly incorrect.

[00:19:32] Speaker 04:
If you look at A5381, there's a June 30, 1997 letter from Mr. Ogali to the filtration group in which he says, I've shipped you a roll of T-MELT-40P.

[00:19:51] Speaker 04:
Right.

[00:19:52] Speaker 04:
There's the July 1st, 1997 letter to, and with regards to the filtration, there's no argument that that was covered by confidentiality.

[00:20:00] Speaker 04:
There's no evidence at all.

[00:20:02] Speaker 03:
But those don't really get you to the inequitable conduct and walk a process part of the case, do they?

[00:20:09] Speaker 03:
I believe all of this shows that it was corroborated.

[00:20:12] Speaker 03:
So there are two issues, Your Honor.

[00:20:14] Speaker 03:
There are two questions.

[00:20:15] Speaker 03:
Is it corroboration or is there an independent public use?

[00:20:21] Speaker 03:
our sale.

[00:20:23] Speaker 03:
The latter does not help you with respect, it seems to me, to either inequitable conduct or walk a process.

[00:20:29] Speaker 03:
The former may help you because it buttresses the evidence that there was a distribution at the expo, but what's your best piece of corroborating evidence with respect to the expo?

[00:20:40] Speaker 04:
Your Honor, can I just want to note that with regard to the point about the offer for sale, I do think it would also bolster the issue regarding

[00:20:49] Speaker 04:
inequitable conduct and Walker process fraud for this reason.

[00:20:53] Speaker 04:
The critical question is whether T-Melt-P could be considered prior art to their patent claim.

[00:21:00] Speaker 04:
That was the issue.

[00:21:01] Speaker 04:
That's what corroboration goes to.

[00:21:03] Speaker 04:
It could be considered prior art if it was publicly available or offered for sale before the critical.

[00:21:09] Speaker 03:
I understand that.

[00:21:09] Speaker 03:
And that goes to invalidity, but I don't see how that pertains to Mr. Jones Rousseau and Hanson's knowledge and Ligari for that matter.

[00:21:18] Speaker 03:
But knowledge of the prior public use or sale.

[00:21:23] Speaker 03:
Because there's no evidence they had any knowledge of these letters that were sent to Filtration and Gerson, right?

[00:21:32] Speaker 03:
No, there's no evidence of that.

[00:21:33] Speaker 03:
So that doesn't get you anywhere on inequitable conduct.

[00:21:37] Speaker 04:
No, but we believe there was more than sufficient evidence for the jury and the court to conclude that they were aware of the public uses regarding PMLP prior to the critical date.

[00:21:48] Speaker 04:
And again, once again, what 3M is attempting to do is exactly what this court said shouldn't be done in the Adenza case.

[00:21:55] Speaker 04:
You can't deconstruct each individual piece of evidence and say, well, this doesn't have all of the material factors, so it can't be corroboration.

[00:22:03] Speaker 04:
And this one doesn't, so it can't be corroboration.

[00:22:05] Speaker 04:
You have to look at all of the circumstances here.

[00:22:07] Speaker 03:
But again, what's your best piece of evidence corroborating that there was a display or distribution of a TMLP

[00:22:16] Speaker 03:
at the expo as opposed to simply T-mailed, non-P.

[00:22:21] Speaker 04:
I would come back to PTX 1338, which was a sample pack that was found in 3M's files.

[00:22:27] Speaker 04:
And there was evidence that an individual from Raycal attended the expo.

[00:22:34] Speaker 04:
And that was what the court described as killer evidence, that this is what he was handing out.

[00:22:40] Speaker 02:
But there was also, the court was interested in

[00:22:44] Speaker 02:
what it believed was false testimony in relation to that attendance.

[00:22:47] Speaker 04:
Well, that's part of it.

[00:22:49] Speaker 02:
That he said he had visited a, he hadn't been anywhere near it and yet he had visited a booth next, admitted visiting a booth that was next to your booth.

[00:22:58] Speaker 04:
That was part of it, but it was also the false testimony of Mr. Legar claiming he got that sample pack on June 2nd, 1997.

[00:23:05] Speaker 04:
Again, the corroboration standard requires

[00:23:08] Speaker 04:
considering everything.

[00:23:10] Speaker 04:
And we have the expo grocer, which mentions he's handing out T-Melt polypropylene.

[00:23:16] Speaker 04:
And the evidence on that issue is that there was no non-fluorinated T-Melt polypropylene at that time.

[00:23:23] Speaker 04:
T-Melt referred to their high-performance material.

[00:23:28] Speaker 04:
The polypropylene one was the plasma fluorinated.

[00:23:32] Speaker 04:
No one would be going there to hand out a typical melt-blown standard

[00:23:37] Speaker 04:
web that had been in existence for decades, it wasn't anything special.

[00:23:42] Speaker 03:
Where in the record?

[00:23:44] Speaker 03:
I was focusing on that question, and I could not find anything that pinned that point down.

[00:23:50] Speaker 03:
Where in the record do you look to say that if it was polypropylene, it was plasma fluorinated as of

[00:24:00] Speaker 03:
April 30th of 1997.

[00:24:04] Speaker 03:
There's a discussion, I think it's page 1384 of the joint appendix in which Mr. Ogali is testifying and he's talking about the early days TMLP and the later days TMLP and so forth.

[00:24:21] Speaker 03:
But I didn't think that pinned it down.

[00:24:23] Speaker 03:
At least it didn't for me.

[00:24:24] Speaker 03:
Well, there's something else.

[00:24:25] Speaker 04:
Are you relying on me?

[00:24:27] Speaker 04:
It's a testimony that 3M cites for this idea where they say there was non-fluorinated tea melt.

[00:24:34] Speaker 04:
What Mr. Ogali said is, yes, there was non-fluorinated tea melt, but those were made out of polyester and nylon, which are... That's at 1384.

[00:24:43] Speaker 03:
That's the page I'm talking about.

[00:24:45] Speaker 03:
That's an important point.

[00:24:46] Speaker 03:
So let's take a look at that, because I don't think he really pins that down.

[00:24:51] Speaker 03:
And since he was your witness, you were entitled to...

[00:24:55] Speaker 03:
get that cleared, and I didn't see it got cleared.

[00:25:18] Speaker 04:
So looking at that testimony at 1384, starting at line four,

[00:25:24] Speaker 04:
And in the early years of Treadsweb, 96, 97, my understanding is that T-Melt could refer either to an oil-resistant product or a product that was not oil-resistant.

[00:25:33] Speaker 04:
Is that right?

[00:25:35] Speaker 04:
Answer, in early 96, in 97, as you know, see the article, it talks about high-performance meltblowns.

[00:25:42] Speaker 04:
And at that time, T-Melt only referred to high-performing meltblowns, which were oil-resistant or plasma fluorinated.

[00:25:48] Speaker 03:
OK, and then he continues on, and he said, T-Melt

[00:25:55] Speaker 03:
about line 19, referred to polyester nylon, which were not oil-resistant T-melt.

[00:26:01] Speaker 03:
Right.

[00:26:02] Speaker 03:
Go ahead.

[00:26:04] Speaker 03:
The polypropylene, though, was the... But that's what he doesn't say.

[00:26:08] Speaker 04:
He doesn't ever say polypropylene is T-melt P. Well, but if it goes on to say, so T-melt in 97 could refer to non-oil-resistant products, answer, if they were polyester and nylon materials.

[00:26:24] Speaker 03:
Taking that as an indication that if they were not polyester or nylon, i.e.

[00:26:30] Speaker 03:
if they were polypropylene, he's saying it must have been T-Melt P. Right, because T-Melt referred to high performance.

[00:26:37] Speaker 04:
And there's nothing high performance about a non-fluorinated electric melt blown web.

[00:26:43] Speaker 04:
It's been in the industry for decades.

[00:26:45] Speaker 04:
That's 3M's own patents recognized.

[00:26:48] Speaker 04:
And I believe, Your Honor, although I can't cite to it right hand, I believe there was other testimony on his direct.

[00:26:53] Speaker 04:
where he discussed and explained what T-melt polypropylene referred to in that regard.

[00:26:57] Speaker 04:
So I do think, again, considering all of the evidence that he had, in the totality of the circumstances, there's more than sufficient corroborating testimony.

[00:27:07] Speaker 03:
And if I recall correctly, in the brochure of the expo, there was a reference to polypropylene, wasn't it?

[00:27:14] Speaker 04:
It said T-melt polypropylene, nylon, and polyester.

[00:27:18] Speaker 03:
OK.

[00:27:19] Speaker 04:
And your honor, in terms of other evidence, though, I mean, again, and I'll just cite some for the record.

[00:27:24] Speaker 04:
And again, you have the Gerson letter, which is an offer for sale, A5150, which specifically refers to T-Melt 30P, 40P, and 50P.

[00:27:32] Speaker 03:
There's no question that by the time you get to, well, even in June, you've already got references to the OILI slash P, T-Melt P. So there's no question that that's all over the record.

[00:27:43] Speaker 03:
The question is, is that date back?

[00:27:46] Speaker 03:
Can you date that back to and establish

[00:27:48] Speaker 03:
that there was an exhibition of those materials at the exhibition.

[00:27:53] Speaker 04:
Well, but even giving out samples to customers was part of it.

[00:27:58] Speaker 04:
And that's what we showed.

[00:27:59] Speaker 04:
We pointed to the letter to filtration group.

[00:28:01] Speaker 04:
That's a public use.

[00:28:03] Speaker 03:
It may be, but there's no way that, at least there's no evidence, that 3M or its predecessor had any knowledge of the samples that were given away to MSA or filtration group or

[00:28:18] Speaker 03:
What's the other one?

[00:28:19] Speaker 03:
Four states.

[00:28:20] Speaker 04:
But I think that's a different inquiry, Your Honor.

[00:28:23] Speaker 04:
I mean, again, the corroboration goes to, can this be considered prior art?

[00:28:26] Speaker 04:
And then, if so, what was 3M's knowledge?

[00:28:29] Speaker 04:
And in that regard, the evidence was overwhelming as the jury unanimously concluded that they committed fraud.

[00:28:37] Speaker 04:
By the time they represented to the patent office, they knew those statements were false.

[00:28:43] Speaker 04:
They knew that there had been prior use.

[00:28:46] Speaker 04:
public use at the expo and other things.

[00:28:48] Speaker 04:
I mean, keep in mind, Jones is directed by his supervisor to check out TransWeb.

[00:28:54] Speaker 04:
There's internal emails targeting TransWeb and their products.

[00:28:58] Speaker 04:
Immediately after the expo, they send emails around talking about TransWeb and its email products.

[00:29:03] Speaker 04:
They invite TransWeb to 3M to talk about their products in June of 97, and he says he tells them about everything.

[00:29:10] Speaker 04:
He's trying to get them as a customer.

[00:29:14] Speaker 04:
At that time, it didn't matter to 3M.

[00:29:16] Speaker 04:
They didn't care about his plasma fluorinated material because they had their patent on their PFOS material to make fluorinated materials.

[00:29:26] Speaker 04:
It was only until 1998 when they had to stop using that material because of EPA issues that they realized they had a problem on their hands.

[00:29:34] Speaker 04:
So they dusted off their invention on plasma fluorination.

[00:29:37] Speaker 04:
They rushed the filing application.

[00:29:39] Speaker 04:
And then they realized that there's this paper trail showing that TransWeb was handing this stuff out and it was publicly available.

[00:29:46] Speaker 04:
This idea that, oh, it didn't mention T-Melt-P is absurd.

[00:29:50] Speaker 04:
3M didn't have any distinction.

[00:29:53] Speaker 04:
They had no reason to know whether there was a fluorinated or non-fluorinated T-Melt, as the district court found.

[00:30:00] Speaker 04:
All they know is they're testing products called T-Melt, which are being advertised in a non-woven industry magazine in 1997.

[00:30:08] Speaker 04:
are being displayed at their booth at the expo.

[00:30:11] Speaker 04:
And then they create this false paper trail to submit to the patent office.

[00:30:16] Speaker 04:
And again, the jury unanimously concluded on all of these things.

[00:30:21] Speaker 04:
And it's entitled significant deference.

[00:30:23] Speaker 04:
I don't believe Judge Hochberg's opinion could be found to be clear error on factual findings when those findings are identical to the findings that the jury made.

[00:30:33] Speaker 04:
even on the issue of inequitable conduct, which was submitted to the jury as an advisory verdict at 3M's request.

[00:30:41] Speaker 04:
And even though they were told they did not need to be unanimous on that, they all came back unanimously, found that intent to deceive was the single most reasonable inference, according to the judge's instructions.

[00:30:54] Speaker 04:
So talk about the anti-Christian.

[00:30:55] Speaker 04:
Yes, I did want to get to that.

[00:30:59] Speaker 04:
conflates and confuses two very distinct concepts in antitrust law.

[00:31:04] Speaker 04:
One, the antitrust injury doctrine, and two, antitrust damages.

[00:31:10] Speaker 04:
Antitrust injury requires that you show harm to competition.

[00:31:15] Speaker 04:
This was an attempted monopolization claim.

[00:31:18] Speaker 04:
By very definition, it did not succeed.

[00:31:21] Speaker 04:
So in an attempted monopolization claim, the standard is to look at if they had succeeded at running trans-web

[00:31:28] Speaker 04:
out of the market, would there have been harm to competition?

[00:31:33] Speaker 04:
And to that, the jury concluded we had expert testimony that showed Transweb's the only other manufacturer in the world of plasma fluoride material.

[00:31:42] Speaker 01:
I understand that, but that's where I'm having some problems.

[00:31:45] Speaker 01:
Because if you define the injury in that way, how are your attorney's fees in defending against the patent suit a result of that?

[00:31:53] Speaker 01:
injury, because I think Comcast at least makes it clear that you have to tie the injury to the specific damages.

[00:32:00] Speaker 04:
So two ways, Your Honor.

[00:32:01] Speaker 04:
First of all, antitrust injury is a unique and somewhat of a misnomer in antitrust law because it's really a standing doctrine as to whether you have standing to pursuits.

[00:32:12] Speaker 04:
So you could suffer all the harm in the world as a company, but if there's no harm to competition or threatened harm to competition, you don't have standing.

[00:32:20] Speaker 04:
But the Kearney case is right on point and explains it very well.

[00:32:23] Speaker 04:
If there's a causal connection between the antitrust violation and the incurrence of the fees and costs to defend against a fraudulently obtained patent in a patent infringement suit, those damages flow from the injury.

[00:32:39] Speaker 04:
What else would the injury be?

[00:32:40] Speaker 04:
They sued us on fraudulently obtained patents in an attempt to force us out of the market.

[00:32:48] Speaker 04:
Of course, the attorney's fees are a

[00:32:51] Speaker 04:
harm that are caused to TransWeb that proximately flow from the infringement lawsuit that we were required to defend against.

[00:32:59] Speaker 04:
And so Kearney, Hansgard, the Dairy Maids case from Seventh Circuit, they all explain that these are.

[00:33:06] Speaker 01:
So the issue I'm having on this, I guess, is that at least some of the cases you cite are the sham litigation cases, which you clearly didn't win that claim here.

[00:33:18] Speaker 01:
If you can get, in those cases,

[00:33:20] Speaker 01:
attorney fees are obviously tied to it because it's the whole point.

[00:33:23] Speaker 01:
If you have to defend against sham litigation, you're incurring attorney fees.

[00:33:28] Speaker 01:
But if you have sham litigation, I'm being inarticulate, but I don't see any difference between the theory of

[00:33:41] Speaker 01:
damages you're getting here and you would be under sham litigation.

[00:33:45] Speaker 01:
So I don't understand quite the difference if there's any light of day.

[00:33:48] Speaker 04:
It's a false distinction that they're making.

[00:33:51] Speaker 04:
There is no difference because in both cases, the company is, the antitrust violation is the lawsuit.

[00:34:00] Speaker 04:
I mean, that's what was going on.

[00:34:02] Speaker 04:
They used the lawsuit in an attempt to monopolize.

[00:34:05] Speaker 02:
Wrap up your time.

[00:34:06] Speaker 01:
But in this case, they specifically found against you on the sham litigation.

[00:34:10] Speaker 04:
And this court has explained it, even in the context of standing to bring a Walker process claim, the only way they can enforce fraudulently-attained patents is by threatening or bringing suit against you.

[00:34:23] Speaker 04:
So those harms do flow, and so the jury found.

[00:34:26] Speaker 04:
And we believe that it's clearly entitled under the case law.

[00:34:30] Speaker 04:
And we don't think there's any case law that goes to the contrary.

[00:34:34] Speaker 02:
Any other questions?

[00:34:35] Speaker 02:
No, your time's up.

[00:34:36] Speaker 02:
Thank you, Your Honor.

[00:34:42] Speaker 02:
You not only used up your time, Mr. Rachman, you said you didn't care if you used up your time.

[00:34:47] Speaker 00:
That was an error on my part.

[00:34:49] Speaker 02:
Yes, it was.

[00:34:52] Speaker 02:
Your time's up.

[00:34:53] Speaker 00:
No, I'm collecting my notes.