[00:00:01] Speaker 03: Good morning, everyone. [00:00:03] Speaker 03: The first argued case this morning is number 14, 5082, Zoltek Corporation against the United States, Mr. Menko. [00:00:13] Speaker 02: Good morning, Your Honors. [00:00:14] Speaker 02: Dean Monk, on behalf of Pell and Zoltek Corporation, may it please the court. [00:00:19] Speaker 02: Your Honors, the Court of Federal Claims, the CFC, has repeated failure to apply or even mention [00:00:26] Speaker 02: the burden of proof regarding the evidence presented both regarding sections 103 and 112 warrants reversal. [00:00:33] Speaker 02: There is no empirical evidence in the record that the government expert rule of mixtures methodology could reproduce the preferred embodiment carbon fiber sheet product described in the Zoltec patent. [00:00:47] Speaker 03: Mr. Michael, is your impression that the trial judge concentrated on that figure four? [00:00:53] Speaker 02: Absolutely, Your Honor. [00:00:54] Speaker 02: In fact, Your Honor, it was not only mentioned in the opinion itself, but it was mentioned in denying the government's motion for summary judgment. [00:01:11] Speaker 02: The court's opinion used a similar language. [00:01:13] Speaker 02: It said it was a remarkable congruence. [00:01:16] Speaker 02: And that was found at 95 federal claims, 681, 698. [00:01:19] Speaker 02: So it's repeating the same thing. [00:01:21] Speaker 03: Is the question, in fact, how much of the data in that figure were in the prior art? [00:01:29] Speaker 03: Is that the issue with that figure? [00:01:32] Speaker 02: Yes, Your Honor. [00:01:33] Speaker 02: The whole problem with the expert's case is that he's relying on the Zoltec patent and the data that's generated by the Zoltec patent. [00:01:42] Speaker 03: But a lot of the information in the Zoltek patent is in the prior art, and the patent says so. [00:01:47] Speaker 02: It is with regard to volume resistivity, Your Honors, but not surface resistivities. [00:01:52] Speaker 02: There's no document that they presented that even mentions surface resistivity, let alone the data points that were provided for in the curve that Dr. Sullivan created. [00:02:04] Speaker 02: There's no document. [00:02:06] Speaker 02: Prior to 1984, there's no document. [00:02:08] Speaker 03: The judge seemed to think that the process had been practiced. [00:02:12] Speaker 03: And that the only problem was that the resistivity hadn't been measured. [00:02:17] Speaker 03: Is that a fair statement? [00:02:19] Speaker 02: The process that had been practiced is generating volume resistivities for fibers based on a heat treatment process. [00:02:29] Speaker 02: But the idea of controlling surface resistivity by controlling volume resistivity had never been done before. [00:02:38] Speaker 02: It had never been done. [00:02:40] Speaker 02: So you have the heat treatment process. [00:02:42] Speaker 02: Yes, that was in the prior art. [00:02:44] Speaker 02: We admit that it's in the prior art as far as generating the curve that's shown in Figure 3 for single fiber. [00:02:51] Speaker 02: But as far as controlling the surface resistivity of a sheet product based on controlling the volume resistivity of a single fiber had never been done before. [00:03:03] Speaker 02: It had never been done. [00:03:06] Speaker 02: And Dr. Sullivan, in going through his mathematical methodology, substituted the use of weight percent for a volume fraction from Zoltek's 2000 user's guide for his most important component. [00:03:20] Speaker 02: So now you're mixing up the physical parameters between weight and volume. [00:03:25] Speaker 02: And he's using them interchangeably. [00:03:27] Speaker 02: And there's no scientific evidence that those can be interchanged. [00:03:31] Speaker 02: And that was a glaring error. [00:03:35] Speaker 01: Is this the 1% number that you're talking about? [00:03:38] Speaker 01: Is this the 1% issue? [00:03:40] Speaker 02: Exactly. [00:03:41] Speaker 02: And the patent, but that's 1% by weight. [00:03:44] Speaker 02: I'm sorry. [00:03:45] Speaker 02: It's 83% by weight. [00:03:47] Speaker 02: And the patent is described for the carbon fibers. [00:03:50] Speaker 02: I'm not exactly sure what the 1% is. [00:03:53] Speaker 02: Oh, yes, that's the resin volume fraction. [00:03:56] Speaker 02: That's the resin volume fraction, Your Honor. [00:03:59] Speaker 02: So Dr. Sullivan, in essence, used the wrong numbers to get the result that he wanted. [00:04:04] Speaker 01: But didn't at trial, didn't Zoltec argue that the correct cyber volume fraction that he should have used was, in fact, 3%? [00:04:13] Speaker 01: 3%, correct. [00:04:15] Speaker 01: But now you're saying, no, it should have been, he used 30%. [00:04:18] Speaker 01: He used 30%. [00:04:18] Speaker 01: And now you're saying, no, it should have been 83% on a volume. [00:04:22] Speaker 01: Again. [00:04:23] Speaker 01: I feel like there's a little bit of a moving target. [00:04:25] Speaker 01: It's almost like whack-a-mole on the theory here. [00:04:28] Speaker 02: Here's where things got confused. [00:04:30] Speaker 02: And this is where Dr. Sullivan's confusion came, mixing weight percent, volume percent. [00:04:36] Speaker 02: The 83% in the patent, that is a weight percent. [00:04:41] Speaker 02: The 3% is the volume fraction. [00:04:44] Speaker 02: And Your Honors, if I may invite the Court's attention to column six, [00:04:48] Speaker 02: of the patent is on A39 and I think it's lines 48 to 52. [00:04:53] Speaker 02: It talks about an area that is, it talks about an area that's one half ounce and one ounce per square yard. [00:05:07] Speaker 02: Okay. [00:05:07] Speaker 02: So let's just say we have this table. [00:05:09] Speaker 02: It's about three feet here by three feet here. [00:05:11] Speaker 02: So we have this sheet laid out on it and [00:05:14] Speaker 02: It has 83% by weight carbon fiber. [00:05:17] Speaker 02: But if you look at that, how is that going to be 1 ounce and 1 half ounce? [00:05:22] Speaker 02: 1 half ounce is extremely, extremely small weight percent. [00:05:26] Speaker 02: I mean, it would be difficult for a human to even measure or to even be able to tell a 1 ounce weight. [00:05:32] Speaker 02: This is the whole problem in the case. [00:05:35] Speaker 02: Dr. Sullivan was mixing weight percents and volume fractions. [00:05:40] Speaker 02: And so he selected, out of the Zotek 2000 user's guide, [00:05:44] Speaker 02: a weight percent of 30%. [00:05:46] Speaker 02: And he himself, if I may just go directly to his testimonies and answer the question, he testified, the far left-hand column, and again, this is referring now to the Zoltec user's guide, 2000 user's guide, quote, the far left-hand column shows a range of fiber components in weight percent ranging from 0 to 40. [00:06:13] Speaker 02: I selected 30%. [00:06:15] Speaker 02: It was somewhat arbitrary. [00:06:18] Speaker 02: I don't actually know, because it's not reported in the patent. [00:06:22] Speaker 02: So he selected 30% from a range between what the document identified as 0.8% to 40%. [00:06:30] Speaker 02: Now, that's an enormous range. [00:06:33] Speaker 01: Well, it's an enormous range, but I guess the question is, what would one of skill in the art have done, right? [00:06:40] Speaker 01: would one of Skill in the Art be motivated to make these selections, to make these choices? [00:06:45] Speaker 01: He selected 30% and then maybe he can't justify exactly why, but maybe that isn't that evidence of what one of Skill in the Art would have selected if they were trying to replicate? [00:06:57] Speaker 02: Your Honor, there's no evidence in the record that a person with ordinary Skill in the Art would even know what the volume fraction was of a sheet product. [00:07:04] Speaker 02: as described in the preferred embodiment of the Zoltec patent. [00:07:08] Speaker 02: This is all new territory. [00:07:10] Speaker 02: This is why when you look at what the letter from George Rogers describing the product as being unique and had never been, they had never seen it before and were not aware of any manufacturer that could produce such a sheet product. [00:07:24] Speaker 02: Now that was a contemporaneous document that was written in 1987 and it was written and filed to support [00:07:34] Speaker 02: an amendment which overcame a rejection for obviousness. [00:07:38] Speaker 02: And he knew why he was writing the letter. [00:07:40] Speaker 01: Can you step back for me for just a second? [00:07:42] Speaker 01: Because although it's a bit confusing for me, I understand that what a lot of your brief has done is point out what you think are flaws in the methodology of the calculations performed by Dr. Sullivan. [00:07:56] Speaker 01: That he chose wrong numbers, or we don't know why he chose numbers he chose, or what is it that you think [00:08:03] Speaker 01: that all of these things show us. [00:08:07] Speaker 01: Why are these individual issues something that causes us to reverse? [00:08:14] Speaker 01: Is it because you think he should have been daubed it and not allowed in, he wasn't qualified? [00:08:19] Speaker 01: Is it that his methodology is so flawed, it is clearly erroneous to rely upon it, and once it's out, that it should have been actually excluded or rejected? [00:08:29] Speaker 01: Precisely what is the nature of the legal argument that you are making to us about what we should do with these laws? [00:08:36] Speaker 02: We argued that he should not have been allowed to testify because he's not qualified, but putting that to the side. [00:08:41] Speaker 01: That's not the issue. [00:08:42] Speaker 01: You're not appealing. [00:08:43] Speaker 02: There's no empirical evidence that it could work. [00:08:46] Speaker 02: If you take a look, Zolt Rumi testified on the witness stand. [00:08:50] Speaker 01: So is your argument, I just want to make sure I understand, is your argument that the failure [00:08:55] Speaker 01: of their proof on obviousness and the critical error that you see in the district court's adoption of this view is that Mr. Sullivan, the evidence presented including Mr. Sullivan's testimony fails to show empirically that it will work. [00:09:13] Speaker 01: I want to understand precisely the point. [00:09:15] Speaker 02: It will not work empirically for two reasons. [00:09:17] Speaker 01: Number one. [00:09:18] Speaker 04: It would not work. [00:09:21] Speaker 04: You say there's no legal evidence that it would work. [00:09:25] Speaker 04: What's the if? [00:09:25] Speaker 02: His rule of mixtures methodology would not work and it would not be used by a person of ordinary skill in the art. [00:09:30] Speaker 02: That's why it's never been used. [00:09:32] Speaker 02: He couldn't identify anybody that's used it over the past 40 years. [00:09:35] Speaker 04: It would not work to produce the preferred environment. [00:09:38] Speaker 04: It would not produce the preferred environment. [00:09:42] Speaker 02: Correct. [00:09:44] Speaker 02: Your honor, the problem is twofold. [00:09:47] Speaker 02: Number one, [00:09:48] Speaker 02: He's off by an order of magnitude as 3% volume fraction versus 30% volume fraction. [00:09:55] Speaker 02: That's number one. [00:09:56] Speaker 02: Number two, Mr. Rumi specifically testified, you can't make this product with that kind of a volume fraction. [00:10:06] Speaker 02: Because he said, if you wind up having to compress the fibers together, because it would defeat the entire purpose of it. [00:10:13] Speaker 02: That's why it couldn't work. [00:10:16] Speaker 02: The case that really to focus on, if I may suggest to the court, is Leibis versus the United States. [00:10:22] Speaker 02: This court's decision specifically stated, quote. [00:10:34] Speaker 01: Can I ask you, is the standard in your view that Mr. Sullivan had to demonstrate that he was able to replicate and make it, quote, work? [00:10:45] Speaker 02: Yes. [00:10:45] Speaker 02: With his data, he had to make it work. [00:10:47] Speaker 02: This is an empirical science. [00:10:49] Speaker 02: Organic chemistry is an empirical science. [00:10:50] Speaker 01: But why? [00:10:50] Speaker 01: I mean, obviousness requires, I may say this wrong in light of KSR, but a motivation to combine. [00:10:58] Speaker 01: Let's just say it requires something like that. [00:11:01] Speaker 01: It doesn't say that you have to demonstrate that it would work. [00:11:05] Speaker 01: If anything, isn't the standard under our precedent a reasonable expectation that you would have success? [00:11:10] Speaker 02: Exactly, Your Honor. [00:11:11] Speaker 02: But in the area of organic chemistry, I'd invite the court to Liebes versus the United States [00:11:16] Speaker 02: There were four factors that were identified. [00:11:17] Speaker 02: And the court said specifically that four factors primarily applicable are when the question involves the technical process with the reliability and its scientific reliability. [00:11:28] Speaker 02: It's not merely general acceptance. [00:11:30] Speaker 02: Its scientific reliability of the technical methodology has been raised. [00:11:35] Speaker 02: And when that issue is raised, and I'm talking, here we are at 193 up third at 1367, when that happens, [00:11:43] Speaker 02: There are four factors that come into play. [00:11:45] Speaker 02: The testability of the hypothesis. [00:11:48] Speaker 02: Dr. Sullivan's hypothesis that he could have used the rule of mixtures certainly could have been tested. [00:11:53] Speaker 02: He never did it. [00:11:55] Speaker 02: He doesn't know anybody that ever used it before. [00:11:57] Speaker 02: And in fact, that dovetails with Zolt Rumi's testimony, which he says, I know of nobody that's used this mathematical methodology in 40 years to produce the product, the preferred embodiment in the path. [00:12:07] Speaker 02: Secondly, has the methodology been peer-reviewed and published? [00:12:13] Speaker 02: And the answer to that question is absolutely not. [00:12:15] Speaker 02: There's no evidence in the record that there isn't. [00:12:17] Speaker 01: This feels like a Daubert challenge. [00:12:18] Speaker 01: That's why when I'm having trouble, I understand your precise argument about flaws that you see in the methodology he used. [00:12:27] Speaker 01: But what I don't understand is how you are extrapolating those precise, very fact component issues into a reversal in your favor. [00:12:37] Speaker 01: I don't understand the legal principle. [00:12:39] Speaker 01: What you're saying now about methodology feels to me like a Daubert challenge, but that's not what you did. [00:12:44] Speaker 02: In essence, it is. [00:12:45] Speaker 02: I mean, we filed a Daubert challenge to him, and that was rejected by the Court of Federal Claims. [00:12:49] Speaker 01: You said that's not what you're appealing here. [00:12:51] Speaker 01: So what is the... Can you articulate for me one more time, and maybe it's my density, I'm sorry, but the legal argument, where did the court go wrong in its obviousness conclusion? [00:13:03] Speaker 01: Where do these factual... Fairly to require that it worked. [00:13:07] Speaker 02: It's as simple as that. [00:13:08] Speaker 01: There's no... I don't understand how it worked as a requirement. [00:13:12] Speaker 02: But he produced the sheet product in the patent. [00:13:15] Speaker 04: It worked on the numbers that he plugged in to the rule of mixtures. [00:13:20] Speaker 04: It did. [00:13:20] Speaker 04: And that's right. [00:13:22] Speaker 04: So you're arguing that, I think you're arguing that Judge Damick committed clear error in a matter of fact finding when he found that the elements that were plugged into the rule of mixtures were the correct factors. [00:13:36] Speaker 04: Exactly. [00:13:37] Speaker 04: I think that's your argument, isn't it? [00:13:39] Speaker 04: He allowed, in fact, if you look at Judge Damage... Isn't that your argument that there's no error in law, that the judge understood the law of obviousness, but the judge made clear error fact-finding when he plugged his factors into the rule of mixture? [00:13:57] Speaker 02: Well, there was error in Dr. Sullivan's using a weight percent instead of a body fraction. [00:14:02] Speaker 02: That's what you're saying. [00:14:03] Speaker 02: That's Dr. Sullivan's error. [00:14:04] Speaker 02: But then that led to a whole cascade of errors, starting with the fact that you use bogus data points to create a curve so that it overlays. [00:14:13] Speaker 04: So in some instances, he's using, as I read what Judge Damage was saying, he's saying even using your numbers, your client's numbers, when he plugs it into the rule of mixtures, he comes up with the same result. [00:14:25] Speaker 02: The Judge Damage was referring, I believe, to the density issue. [00:14:28] Speaker 02: And that figures into the rule of mixtures. [00:14:32] Speaker 02: But the primary error here, and I disagree with the judge, and I think we showed that he disagreed with the judge. [00:14:38] Speaker 02: But the primary error here is that Dr. Sullivan used a weight percent, not a volume fraction. [00:14:45] Speaker 02: And Dr. Sullivan's own rule of mixture methodology required the use of the volume fraction, not the weight percent. [00:14:55] Speaker 02: Those are two different physical parameters. [00:14:58] Speaker 04: And that, of course, he used the wrong numbers to generate the curve, which overlaid... And you think Judge Damage was unaware of this, or he was aware of it and had an explanation? [00:15:07] Speaker 02: Your Honor, the opinion of Judge Damage does not even mention this in the opinion. [00:15:12] Speaker 02: Judge Damage's opinion does not mention Zoltec's 2,000 users guide and the fact that he was using a weight percent admittedly. [00:15:23] Speaker 02: I mean, there's no question about it. [00:15:24] Speaker 02: He used the weight percent, and he said so on the witness stand, and as we stated in our briefs. [00:15:29] Speaker 01: Well, so then can I ask you, is this the blind squirrel finds a nut? [00:15:32] Speaker 01: I mean, how did he get the, you're saying he used the... He worked backwards, Your Honor. [00:15:38] Speaker 02: He took the patent, and he just simply worked backwards. [00:15:41] Speaker 02: It's a very egregious case of hindsight. [00:15:44] Speaker 02: Because if the standard is that you take a look... That's a different issue. [00:15:48] Speaker 04: That's a different issue. [00:15:50] Speaker 04: That's saying that the factors that he plugged into the rule of mixtures did produce figure four. [00:15:55] Speaker 02: Well, the factors that he plugged in, he relied on a weight percent and not a volume fraction. [00:16:00] Speaker 02: There are no volume fractions in Zoltek's patent. [00:16:03] Speaker 02: It is all weight percents. [00:16:05] Speaker 02: So that the weight percent for the carbon fiber in the patent in column six of the patent is 83%. [00:16:14] Speaker 02: And yet he uses 30%. [00:16:16] Speaker 02: He just picks and chooses numbers that he wants to reach the result that he obtained. [00:16:20] Speaker 02: That's the whole problem here. [00:16:22] Speaker 03: Let's hear from the government. [00:16:23] Speaker 03: We'll save you rebuttal time, but we will pursue this the other side. [00:16:28] Speaker 02: Thank you very much, Your Honor. [00:16:30] Speaker 03: Thank you, Mr. Markoff. [00:16:34] Speaker 03: Mr. Haskin. [00:16:35] Speaker 05: May it please the court, Your Honor. [00:16:38] Speaker 03: It does seem strange, does it not, that your experts use [00:16:43] Speaker 03: A good deal of the data that he used was data that was generated either after the filing date or that was not specific in the sources that he selected it from. [00:16:54] Speaker 03: Is that correct? [00:16:59] Speaker 05: We would agree with at least some of that, Your Honor. [00:17:02] Speaker 05: I think that the problem here is that this all goes back to Figure 4. [00:17:10] Speaker 03: Let's talk about the source of the data in Figure 4 because this to me seems to be a particularly troubling aspect. [00:17:18] Speaker 03: Obviousness is the information that was available before the filing date, not after. [00:17:24] Speaker 03: And yet they use this plaintiff's own documents either from the patent itself or produced after the filing date and use this as a basis for obviousness. [00:17:40] Speaker 05: Well, Your Honor, first let me address the problem. [00:17:46] Speaker 05: Part of the problem with the data in the patent is that it's very incomplete. [00:17:52] Speaker 03: Zoltek says that that doesn't justify using it as ground for something that is necessarily based on what was known before the invention was made. [00:18:06] Speaker 05: Well, Your Honor, I think that [00:18:08] Speaker 05: All that the rule of mixtures was designed, all of that testimony was designed to do one thing and that is to show how you get the relationship between the single fiber and the volume resistivity of the sheet. [00:18:24] Speaker 03: But that relationship had to be known at least from the viewpoint of providing certain background before the filing data. [00:18:33] Speaker 03: The data that was used was all produced after the filing date. [00:18:37] Speaker 05: Some was before, some was after, Your Honor. [00:18:39] Speaker 05: But if I could step back a minute, the basic concept of making a sheet product and controlling the resistivity of that sheet product were known before the filing date by, Leydon did it. [00:19:02] Speaker 05: In the Leydon Pat, there are two examples of sheet products made [00:19:07] Speaker 05: with where the fibers are produced at temperatures of 1000 degrees and 1250 degrees, and he goes... The carbon fibers were known before, but that's not the issue. [00:19:21] Speaker 05: And the ability to control the volume resistivity of the sheet was also known. [00:19:27] Speaker 05: Now, and that's also shown in TokChip. [00:19:30] Speaker 05: And the ability to control the resistivity generally was known. [00:19:39] Speaker 05: Now, Dr. Sullivan also testified that going from volume resistivity to surface resistance in ohms per square is a very simple calculation. [00:19:52] Speaker 05: It's just the volume resistivity divided by the thickness of the sheet. [00:19:56] Speaker 04: Can we not get too far away from what I thought was Zoltec's [00:20:00] Speaker 04: position, a dispositing position for air below. [00:20:05] Speaker 04: I understood Zoltek to be saying that if you ran the rule of mixtures correctly and you produced figure four as a result of it, well, then you'd have a problem. [00:20:15] Speaker 04: He'd have a problem with obviousness. [00:20:17] Speaker 04: But he's saying the expert who ran the rule of mixtures made a fatal error when he used a weight percentage instead of a volume percentage. [00:20:28] Speaker 04: He said that's a fatal error. [00:20:30] Speaker 04: And if we agree that that's a fatal error, then the running of the test is no good and the result would be wrong. [00:20:36] Speaker 04: So why don't you directly address why it was proper for your expert to ignore the weight percentage and use volume? [00:20:48] Speaker 04: And you speak in English to me because I don't really understand all this stuff. [00:20:51] Speaker 05: The rule of mixtures requires the use of volume percentages. [00:20:56] Speaker 05: Yes. [00:20:57] Speaker 05: Did he use volume? [00:21:00] Speaker 05: Yes, he testified that in his experience, the volume percentage should be around 30%. [00:21:08] Speaker 05: Now, he also then said that this user's guide was one of the references that he relied on. [00:21:15] Speaker 05: But he said, but what... How does that correlate to volume? [00:21:19] Speaker 04: I mean, how does it correlate to weight? [00:21:23] Speaker 05: The user guide is in weight, Your Honor. [00:21:26] Speaker 05: Dr. Sullivan, though, said that he testified that it has to be in volume percentage. [00:21:37] Speaker 04: You're not helping me. [00:21:41] Speaker 04: I mean, maybe I have a very simple-minded way of looking at the case. [00:21:47] Speaker 05: The rule of mixtures works on the presumption that if you started with a block of material, it would occupy a certain volume. [00:21:54] Speaker 05: And you measure the resistance of that volume. [00:22:00] Speaker 05: When you have a mixture such as we do here, you have, say, resin, which is a non-conductive material. [00:22:11] Speaker 05: You have the fiber, which is very conductive. [00:22:16] Speaker 05: So as Dr. Sullivan testified, the key element in that is how much fiber there is in the mixture. [00:22:24] Speaker 05: And that will pretty much determine the conductivity of the material. [00:22:32] Speaker 04: Excuse me? [00:22:33] Speaker 04: How do you measure that amount by weight? [00:22:37] Speaker 05: No, you measure it by volume. [00:22:39] Speaker 05: And for instance, in Joint Exhibit 37, a major exhibit in this litigation, Mr. Boyd actually did volume calculations for sheets. [00:22:54] Speaker 05: But it's how much of the volume that the sheet occupies is fiber versus other material, essentially. [00:23:03] Speaker 05: And Dr. Sullivan, the part of Dr. Sullivan's testimony that the court credited was that in Dr. Sullivan's experience, the volume percent should be around 30%. [00:23:22] Speaker 05: And then the judge, Judge Damage also credited Joint Exhibit 37, which then has ranges from 15 to 35% in volume in volume. [00:23:35] Speaker 03: Well, I have to interrupt you because the question is not what in his experience 20 years later is an appropriate percentage, but what was shown in the prior art to be appropriate at the time this invention was made. [00:23:49] Speaker 03: and that keeps cropping up everything you look at. [00:23:53] Speaker 03: He uses numbers from the inventor's specification. [00:23:58] Speaker 03: He uses numbers from their brochure and literature produced after the patent application was filed. [00:24:07] Speaker 03: And it's very hard to find, except some of what was in his calculations, you could find in the prior [00:24:16] Speaker 03: but not enough to produce that entire curve? [00:24:20] Speaker 05: Well, the volume percentage, the part that, again, that Judge Damage credited is the volume percentage testimony relating to Joint Exhibit 37, which is Mr. Boyd's own work and was contemporaneous with the invention. [00:24:41] Speaker 03: He used the inventor's numbers. [00:24:46] Speaker 03: And whether that's legitimate prior art is another question because they were published generally some before, some after. [00:24:58] Speaker 03: If you just cut things off at the time that this invention was made, it's very hard, at least it was very hard for me, to find enough figures to produce that curve reliably. [00:25:15] Speaker 05: I think that, Your Honor, yes, if you are trying to actually replicate the curve, there is not enough information. [00:25:24] Speaker 03: Well, the judge damage relied heavily on that curve. [00:25:27] Speaker 03: That's the problem. [00:25:29] Speaker 05: He relied on the relationship that the curve shows and why that relationship exists. [00:25:40] Speaker 05: The basic concept here, all that's new in [00:25:45] Speaker 05: in the Zoltek patent, the only thing that's ever been claimed to be new is this ability to preselect based on fiber resistivity and get a surface resistance. [00:25:58] Speaker 05: And the government showed that at least two other people had done the same thing, although not in a curve relationship, but at specific points. [00:26:11] Speaker 05: We showed that through an article [00:26:15] Speaker 05: by Fishbach and Kamaki that the fiber volume curve was well known. [00:26:23] Speaker 01: But none of that is what Judge Damage relied on for his conclusion. [00:26:27] Speaker 01: He relied on Dr. Sullivan. [00:26:30] Speaker 01: And I think that what seems to be troubling Judge Newman is the same thing that's troubling me, which is I don't understand where Dr. Sullivan got some of the data that he used. [00:26:41] Speaker 01: beautifully replicate that figure that Judge Damage liked so much because it was practically identical to the figure in the patent. [00:26:49] Speaker 01: And that really wrapped this case up with a nice pink ribbon. [00:26:53] Speaker 01: I mean, it was just sort of, where did the 30% number come from? [00:26:57] Speaker 01: Because what you said represented to us, and I wrote it down here, was that he said he chose 30% based on his experience. [00:27:04] Speaker 01: But in fact, the only evidence I can find [00:27:08] Speaker 01: Well, on 2259 of the appendix, he said, I chose 30% because the Zoltec user guide gave a range of 0 to 40. [00:27:20] Speaker 01: I chose 30%. [00:27:20] Speaker 01: Here's the quote. [00:27:22] Speaker 01: It was somewhat arbitrary. [00:27:25] Speaker 01: The Zoltec user guide is from the year 2000. [00:27:27] Speaker 01: That is Zoltec post patent data. [00:27:33] Speaker 01: So if he's choosing all these numbers to show, oh, see, this was known in the art, but he's actually using post-dated stuff that one of Skill in the Art would not have known or that you didn't show one of Skill in the Art would know at the relevant time for the obviousness inquiry, why is that not riddled with hindsight-related problems? [00:27:56] Speaker 05: Well, Your Honor, I think that, yes, there was an element here where he was trying to replicate the data. [00:28:03] Speaker 05: I think that that misses some of the point that Dr. Sullivan was doing, though. [00:28:08] Speaker 05: He also tested the rule of mixtures formula against the latent patent data, which is definitely prior art, against the top CHEF data, which is also prior art. [00:28:21] Speaker 04: Tested for what purpose? [00:28:22] Speaker 05: For the purpose of demonstrating that the rule of mixtures worked in those cases as well. [00:28:31] Speaker 04: All the... I mean, they're working in those cases is different from working in this case when what you're trying to do is replicate a specific graph. [00:28:39] Speaker 04: Well, those were... And you need inputs, right, into the formula. [00:28:44] Speaker 04: Well, those were examples. [00:28:46] Speaker 04: Those were data points. [00:28:48] Speaker 04: In the other examples, what inputs were used? [00:28:51] Speaker 05: Excuse me? [00:28:52] Speaker 04: In the other examples where you say, well, they used this rule in other cases as well. [00:28:58] Speaker 05: Well, no, he was saying that he tested it against actually three data points, two from Leighton and one from the Top Chef patent to demonstrate that, yes, it worked there. [00:29:15] Speaker 05: Those three sheets that are described in those two references are also partially carbonized fibers. [00:29:24] Speaker 04: Is he using this 30% figure in those equations? [00:29:27] Speaker 05: That I do not, I don't know what the percentages were. [00:29:33] Speaker 04: We're talking about the application of this particular rule in a very specific case and whether it was correct. [00:29:40] Speaker 05: I understand that, Your Honor. [00:29:41] Speaker 04: The fact that the rule may have been properly applied in a different parameter doesn't seem to me to be relevant. [00:29:46] Speaker 05: Well, I think that the rule works in all cases. [00:29:51] Speaker 05: It applies to all cases and it applies not only to electrical resistivity but to many other factors. [00:29:58] Speaker 05: The problem or the distinction here is at some point in time... Let me ask you a simple question. [00:30:05] Speaker 04: Let's assume that the court concluded that it was error for Dr. Sullivan to use the 30%. [00:30:13] Speaker 04: What's that do to your case? [00:30:17] Speaker 05: And does it, doesn't it? [00:30:19] Speaker 05: Well, it would be a problem, yes. [00:30:24] Speaker 05: But on the other side, there is no evidence [00:30:28] Speaker 05: In this case, Zoltac put on no evidence. [00:30:38] Speaker 05: That 3% number, there's nothing that supports that. [00:30:41] Speaker 04: Well, did they challenge the 30% below? [00:30:44] Speaker 05: They did challenge the 30% by saying it should be 3%. [00:30:48] Speaker 05: There's no evidence of 3%. [00:30:49] Speaker 04: It's their burden to come up with the correct number. [00:30:51] Speaker 04: You're trying to invalidate the patent. [00:30:55] Speaker 04: Why is it their burden to come up with the right number to go into the rule? [00:31:00] Speaker 05: I'm not sure that it is here. [00:31:01] Speaker 05: I would never say that it's their burden. [00:31:04] Speaker 04: Come back to whether or not 30% was, if we decide 30% was incorrect because it was just picked out of the air from a document that existed after the filing of the patent, then we reverse, right? [00:31:19] Speaker 05: You certainly could reverse. [00:31:20] Speaker 05: I don't think you have to reverse. [00:31:23] Speaker 04: How could you not? [00:31:25] Speaker 05: Well, first, the standard here is clear error. [00:31:30] Speaker 05: I'm not sure that that is necessary, depending on what the court's other findings are as to the totality of the evidence. [00:31:39] Speaker 04: Well, 30 percent has to predate the filing of the patent. [00:31:43] Speaker 05: Well, let me go back and reiterate, Your Honor, that the judge's damage did not rely on the user guide portion of it. [00:31:52] Speaker 05: He relied on [00:31:53] Speaker 05: Dr. Sullivan's experience, the testimony that Dr. Sullivan... Well, I thought Judge Moore had pretty much chased that, as she said. [00:32:01] Speaker 05: Well, no, I think there is other testimony in the record relating to Dr. Sullivan, and I think there is a specific reference where the Judge Damage actually cites, where Dr. Sullivan says that he was basing his [00:32:22] Speaker 05: the 30% number on his experience. [00:32:27] Speaker 05: And Dr. Sullivan is an experienced person in this art. [00:32:31] Speaker 03: And validity depends on what's in the prior art, not on some super smart expert 20 years later. [00:32:39] Speaker 05: We understand that, Your Honor. [00:32:42] Speaker 05: But we're not saying that the rule of mixtures was certainly in the prior art. [00:32:51] Speaker 05: We're not saying that the numbers are particularly critical here in the sense all we're using the rule of mixtures for is to explain why there is a mathematical relationship between that single fiber curve and those two sheet curves. [00:33:16] Speaker 05: That's all that it's trying to do. [00:33:18] Speaker 05: This is simply a relationship built on fractions. [00:33:26] Speaker 05: Once you understand that the fraction of the volume that is occupied by the conductive material, then you can figure out exactly [00:33:40] Speaker 05: Why the relationship? [00:33:41] Speaker 04: But somebody has to do it. [00:33:42] Speaker 04: When you say you have to figure it out, somebody has to figure it out. [00:33:46] Speaker 04: Somebody has to run an equation and some numbers to get the job done. [00:33:50] Speaker 05: And Leydon and Tokchev, for instance, did that. [00:33:53] Speaker 05: And they presented examples of sheet products made within the ranges of what Zoltek is claiming. [00:34:03] Speaker 05: They just didn't show the entire range. [00:34:05] Speaker 03: Were they products that were available before this [00:34:09] Speaker 03: patent application was filed? [00:34:11] Speaker 05: Both Layden and Top Jeff were patents that were issued before this patent application was filed. [00:34:17] Speaker 03: You say the patents, I thought you were telling us that they were products. [00:34:21] Speaker 05: No, well the product, my error your honor, the material that is described in the patent, these are both patents, these are both issued patents. [00:34:34] Speaker 03: Any more questions for the government? [00:34:36] Speaker 03: Any more questions? [00:34:38] Speaker 03: Okay. [00:34:39] Speaker 03: I think we have the position. [00:34:44] Speaker 03: Mr. Monco, you have the rebuttal. [00:34:48] Speaker 02: Your honor, just a couple of quick points. [00:34:50] Speaker 02: First of all, with regard to the laden and the top GF patent, neither one of those patents mentioned the term surface resistivity. [00:34:57] Speaker 02: That's an admitted fact. [00:34:58] Speaker 02: There's no question about it. [00:34:59] Speaker 02: Second of all, Dr. Sullivan testified that the laden and the top-GF patent would not be sufficient to render the Zoltek patent obvious. [00:35:06] Speaker 02: That's also Dr. Sullivan's testimony. [00:35:09] Speaker 02: So the reference to the laden and top-GF patents are of no consequence here. [00:35:14] Speaker 02: Second of all, with regard to Exhibit 37.9, which is the Zoltek chart that Mr. Hoskin referred to [00:35:24] Speaker 02: That is a chart for a multi-layered laminate made of a multiplicity of sheet products that are saturated with resin and pressed together. [00:35:36] Speaker 02: It is not the single sheet product in the preferred environment of the patent and has no relevance whatsoever to that. [00:35:43] Speaker 02: And number three, [00:35:46] Speaker 02: Mr. Hoskin in his response to the court was referring to a block of material. [00:35:52] Speaker 02: This is where you use the rule of mixtures in a block of material. [00:35:55] Speaker 02: The preferred embodiment in the patent is a web. [00:35:59] Speaker 02: It's a web. [00:36:00] Speaker 02: It's not a block of material. [00:36:02] Speaker 02: There is no evidence in the record to specifically address Judge Moore's point. [00:36:07] Speaker 02: There's no evidence in the record that a person of ordinary skill in the art would look to the rule of mixtures to recreate the web-based sheets [00:36:15] Speaker 02: that's in the patent and the preferred embodiment. [00:36:18] Speaker 03: That's our rebuttal. [00:36:21] Speaker 03: Thank you very much.